M'Inroy v. Benedict — 11 Johns. 402

Majority

p. 402

M'Inroy against Benedict.

ALBANY,

August, 1814.

Headnote

ai] the rv.femuTimeet and gl'iUms "a "d" tártu'sfañda oít'iicmbn¡ ihu°t b^’wh-M-e'aU am duijg nolified, ajerone or fhe^Fo-u. not atOTcl,and the other two prothT'pár” ..‘band u ¡s erroneous^ a"i!iI‘Uifeone alter being d¿ iy notified of the time and place oí the referee® “doe's” referees" may” the^proofi'ln" Sfrence’ ’"J"8 parte.

A MOTION was made to set aside the report of referees in this cause. The report was made by two only of the three referees appointed by the rule of court. The other referee was duly notified of the Jtjjpe*and place of meeting, but did not attcn(l; and the othertwo referees, in the absence of the Pla*int^^ proceeded, ex parte, in the examination, and reported in favour of the defendant. Several other exceptions , _ _ . . _ t _ r were taken, to the report oí which the court did not take notice.

The only objection made to the report of the referees,which we think necessary to notice, is, that it was made by two oril®^n the absencé of the third, who had not attended, or heard t^ie Prc°fs- As due notice of the time and place of meeting had been given by the plaintiff, his absence would have formed ... , ,. , , „ , no objection to the proceedings, had all the referees attended, But this, we think, a fatal objection. It is necessary that all should meet, and hear the proofs; and then the report of any two is valid. This appears, necessarily, to result from the phraseology of the act, which, after directing the manner in which the referees are to be appointed, or agreed upon, declares, that the referees finally fixed on shall hear and examine the matters in controversy, &c. This appears to be imperative upon all to meet, and hear the proofs; and such has been the interpretation uniformly given to the statute. The report must, accordingly, be set aside, and other referees appointed.

Motion granted.