¶1In this case, the suit haying been referred under the statute, and the report of the referees haying been excepted to, the Circuit Court instead of confirming it in whole or in part, set it aside altogether, and then without any further trial or reference back, gaye judgment for plaintiffs for $646.32 damages, with costs.
¶2This was unauthorized by law. As soon as the report was set aside, the case stood in the same predicament as if the verdict of a jury had been vacated, and until a' new trial should- be had before the Court or a jury or referees, there was nothing left to act upon. A report set aside leaves the cause as if it had never been tried, and there is left neither evidence nor finding; but merely an issue of fact requiring trial before any judgment can be given. Until some competent body has re-tried that issue, the court cannot have any basis for determining which party should prevail, or what amount, if any, was due from one to the other. Every judgment must be based upon some finding, and here there is none whatever remaining in force. The judgment must be reversed, and the cause be remanded for a new trial.