Goodrich

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…