The trial of this action was by a referee under a consent order. Upon the hearing, the testimony of several witnesses offered by defendants was excluded upon objection by plaintiff, to which defendants excepted. The report of the referee was duly made to the Superior Court. Upon the hearing and argument of counsel his Honor “refused to consider the evidence offered by defendants; it being all the evidence contained in the report of the referee,” and overruled all of the exceptions and confirmed the report in all respects, to which defendants excepted.
The first question, then, presented for the consideration of this Court is that raised by .the exception taken by defendant to the “judgment and ruling of his Honor upon the evidence of defendants contained therein,” which ruling is as follows: “After -hearing argument of counsel upon said exceptions, and the Court refusing to consider the evidence offered by *68defendants, it being all tbe evidence contained in tbe report of tbe referee, tbe same are overruled and tbe report of S. E. Mordecai, referee herein, is berebv in all respects confirmed, except wherein it allowed tbe excluded evidence.”
We deem it unnecessary to review tbe mode of trial by referees further than to refer to Green v. Castlebury, 70 N. C., 24; Vaughan v. Lewellen, 94 N. C., 472; Battle v. Mayo, 120 N. C., 413, and cases there cited. Tbe rule is clearly stated that tbe Judge of tbe Superior Court will review tbe findings of tbe referee, and bis findings upon tbe facts will be conclusive. At tbe bearing of this case tbe Judge failed to review tbe findings of fact. He positively refused to consider tbe evidence — tbe basis of tbe finding.
In concluding bis report tbe referee says: “Tbe burden being upon the defendant to prove tbe alleged agreement to reduce tbe rate of interest from that fixed by tbe bond and mortgage, tbe evidence on bis behalf fails to satisfy me as to tbe affirmative of that issue. Sitting as a juror I can not say I believe such to be tbe fact, and consequently I can not -find such to be tbe fact. While there is some evidence — to my mind there is no satisfactory evidence to overcome the solemn agreement of tbe parties.”
Now, then, this finding being in tbe nature of a special verdict, it was tbe duty of tbe Judge to have acquainted himself fully with tbe evidence upon which it was found. Tbe testimony of all tbe witnesses is required by statute to be reduced to writing by tbe referee and signed by them and filed as a part of the record (which was done in this case) for no other purpose than to be considered by tbe Judge in passing upon tbe findings of tbe referee.
It may or may not have been that tbe Judge would have set aside tbe finding of fact, as being against tbe weight of evidence (as be might have done in case of a verdict by jury), *69had he considered the evidence. While in reviewing the report made under a consent order the Court has no power to change or modify the facts as found, yet it is his duty to consider the evidence upon which they were found, to the end that he may act intelligently in confirming, modifying or setting it aside. As there was error in his Honor’s refusal to consider the evidence at all, we do not now pass upon the other exceptions of defendant. So this action is remanded to the Court below to the end that it be fully reviewed and passed upon.
Error.