Heydenfeldt, J., concurred.
This is an appeal from an order of the Court below, setting aside the report of a referee, and granting a new trial. The record does not contain any bill of exceptions taken on the trial, neither is the evidence preserved and authenticated in such a way as to make it record in this case.
We have repeatedly held, that a trial before a referee should bo conducted in the same manner as though it was had before a Court, and that the evidence must be embodied in a bill of exceptions, and certified by the referee. In case the order of reference fails to direct a return of the evidence to the Court, the party objecting to the report must see that such testimony as he relies on is properly certified.
A Court ought not to set aside a report upon loose statements of what the evidence was upon the trial. In the present case, the report was set aside by the Court below, either upon an examination of testimony, which was improperly before it, or, on account of some supposed mistake of law or fact, patent on the face of the report. If on the first ground, it was error; if on the second, it was equally erroneous in our opinion;—for, taking the facts thus found as conclusive, which we are bound to do in the absence of the testimony, the conclusions of law are properly drawn, and the report should not have been disturbed.
While we hold, that we will not review the discretion exercised by inferior Courts in granting new trials, except in cases of an abuse of that discretion, we have repeatedly decided, that the report of a referee *432cannot be attacked, except for error or mistake of law or fact, apparent upon its face, either to be shown by exceptions taken at the trial, or by a statement of the evidence properly certified. And it would be a gross abuse of discretion, for the Court to set aside a report correct in all its parts, without any reason apparent, other than the mere volition of the Judge. Such a power thus uncontrolled, would be dangerous, no matter where lodged.
We have no doubt that the Court in this case acted upon what was supposed to be the authenticated testimony taken before the referee; and we regret that the evidence is not properly before us. Regarding, however, the report alone, we hold that the Court below erred in setting it aside. The order is reversed, and the Court below directed to enter a final judgment in favor of the plaintiff for the amount reported.