The only question before us on this application is, whether the circuit court can set aside a referee's report, as against the weight of evidence, and order a new trial.
We have had the subject of references, and their incidents before us several times, and have had our attention turned to questions not entirely foreign to this inquiry. But we have not heretofore felt called upon to consider the point now discussed, which is one of great practical importance.
We regard the judicial power vested in the circuit courts, by the constitution, as one which cannot be reduced or divested to any extent which would impair their general authority over proceedings pending before them. And it cannot be doubted that a power to grant new trials, is one not depending upon statutes in this state, but recognized as existing, and subject only to such regulation as would be proper in regard to all legal proceedings under the general provisions intended to produce system and efficiency. In looking at any statute which would seem to infringe any of their substantial powers, we are bound, therefore, to give no further effect to such reduction than is reasonably required to be done.
The fact that references are not compulsory, does not prevent them from being considered as a method of trial an*489thorized by law, and not to be treated with any disfavor. And when a party elects to adopt this form of trial, we cannot consider him as compelled to waive thereby any rights which are consistent with a resort to it. Where a reference is compulsory no question of waiver arises, and no right is lost which the law ever vested in him. But where it is not compulsory, he waives just so much of his rights as cannot be made consistent with the practice he has chosen.
It is not easy to see how by resorting to a reference, a person must necessarily lose any of the grounds for a new trial, which can be retained without inconvenience.
The discovery of new evidence, fraud, misconduct, and other causes independent of the method of trial, would not be any more difficult to consider in one case than in another. But the granting of new trials because a finding is against the weight of evidence, involves, as usually considered, a knowledge of the character and incidents of testimony, only possessed by the judge who hears a cause. Where an issue is sent down from this court for trial, it is not customary to set aside a verdict as against the weight of evidence, if satisfactory to the circuit judge; and such has always been the practice in courts sitting in bank, who are called upon to decide such cases heard before a single judge. Although, there is an abstract power to do otherwise, the case must be an extreme one which would justify a departure from the rule.
A referee is not a judge, and does not act judicially in the strict sense of the term. But the difficulty does not arise from the judicial character of the presiding officer, but from the fact that no testimony can appear to those who did not hear it, precisely as it does to those who hear it. And while cases may often exist where the difference would not be serious, yet the rule must in general be otherwise; and there is always a presumption that evidence has *490been properly considered. The referee-law provides no method, for preserving testimony. In case a party insists, before a referee, that there is no evidence tending to maintain a case, undoubtedly he raises a question of law, which will enable him to require a report showing what the testimony was, and this would be done by exception. But this does not require that minute and absolutely perfect reproduction of it which would be necessary to put the court in as good a position .as the referee, to appreciate it. And this cannot be compelled, or attained under the law.
We feel that there may be many cases where the existence of such a power as was exercised m this case would prevent injustice; but we think the law is not so framed as to provide any adequate means for its exercise. And we are compelled to hold that by electing to refer, the party loses his right to complain that the finding of the referee is against the weight of evidence.
The mandamus must be granted; but as the point is new, and one which it was desirable to have settled, we do not feel disposed to impose costs.
The other Justices concurred.