Clark v. Fraser

Headnote

Where two referees agree to a report, and the other dissents, saying to the two, who agree, that they can sign the report without his being present; and it is so done the next day, the cause being considered as determined; held that the report is good.

Motion by plaintiff to set aside report of referees in this cause for irre gularity.—This cause was referred by consent, in September last, to three referees. In December last it was submitted to said referees after an extended investigation. On the 25th December last all the referees met and had a discussion of the cause. All the referees again met pursuant to agreement on the 26th December last; and one of the referees had written out an opinion in the cause, which was then read; which opinion came to the conclusion that there was nothing due from the defendants to the plaintiff. Two of the referees agreed with the opinion, and the other dissented. The subject was discussed at some length ; when the referee who dissented from the opinion, remarked that two had agreed, and they could sign the report without him. The next day the report was signed by the two who had agreed; and it was understood by all the referees at the time, that the cause was determined on the day previous to signing the report, when all the referees were together. Plaintiff’s counsel cited 11 J. R., 402; 6 J. R., 39; 2 John. Cases, 346; 7 Cow. R., 410, 526 and note 730; 2 Maul. <§r Sel., 141; 2 R. S., 306, § 46; 3 R. S., 732, § 56-7; 2 R. S., 458, §27; 3 R. S., 780, § 44.