Jones

This was an action at law against a surety company on a bond of indemnity. The action was tried by the court without the intervention of a jury, by written stipulation of the parties. As is usually the ease, the action presented or involved two questions: First, the question of liability; and, second, the extent or amount of that liability. At the close of the testimony offered by both parties, the surety company interposed a so-called motion for non-suit on five different grounds. The third ground of the motion was that there was no evidence of any wrongful abstraction, wrongful misapplication, or other improper use of moneys, save the testimony of an expert whose testimony was based on information received by him and on his interpretation of the written contract between the parties. The motion was denied by the court, and the case was referred to the United States commissioner as special master, for the purpose of taking testimony, stating an account, making findings thereon, and reporting the same to the court. To this ruling an exception was taken and allowed. Further testimony was *792 thereafter offered by both parties before the special master, and at the conclusion of the…