delivered the opinion of the Court—Burnett, J., concurring.

The demurrer was properly sustained. The complaint sets out no facts of which the party could not have availed himself in the trial before the referee; indeed, the plaintiff alleges, that the facts were given in evidence before the referee, and only complains that by the sharp practice of one of the counsel for the plaintiff, now defendant, he was prevented from having a properly authenticated statement of the case before the Court, on his motion for new trial.

This is no sufficient reason for enjoining the judgment. It is a well-established rule, that Courts of Equity will only interfere to enjoin a judgment at law rendered against him by reason of fraud or accident, unmixed with any fault or negligence in himself or his agents. 2 Story Eq., § 887.

Under the former rulings of this Court, trials, before referees, are conducted in the same manner as before Courts; and exceptions must be taken to the rulings of the referee, in the progress of the trial, in the same manner as they are taken before a Court, and such exceptions must be embodied in the report of *53 the referee, or made a part of the report, by being properly certified by him. Tyson v. Wells, 2 Cal., 130 .

The plaintiff, having failed to procure the certificate of the referee, and having chosen to rely on the verbal assurance of the attorney on the other side, that he would agree to a statement, crnnot bo said to be free from fault and negligence, and is not in a position to invoke the aid of a Court of Equity. The objection that the judgment was rendered in vacation, can be taken advantage of upon appeal from the judgment.

“ When a verdict has been obtained at law against a defendant, and he has neglected to apply for a new trial within the time appointed by the proper Court of law, Courts of Equity will not entertain a bill for an injunction, on the ground that the original demand was unconscientious. It is not the practice of Courts of Equity to assume jurisdiction in favor of parties who, having had an opportunity of asserting their title in another Court, where the matter has been properly the subject of adjudication, have either missed that, or have not thought proper to bring their title forward." 2 Story Eq., 894, 895.

Judgment affirmed.