Short v. Pratt

6 Mass. 496 | Mass. | 1810

Parsons, C. J.

The statute under which these proceedings were had, requires the submission to be made to all the referees named; although, if the greater part agree, the report shall be a foundation for a judgment; and upon a recommitment of the report all the referees must hear the parties; and if they do not all agree, the greater part may proceed. And a judgment on a report made under the statute is not legal, unless it appears on the record that the report was made pursuant to the provisions of the statute which authorizes the judgment.

But it does not appear on this record, that all the referees heard the parties ; and this is error, for which the judgment ought to be reversed. — If all had heard the parties, two might have made a report against the assent of the third. But his opinion [ * 498 ] and arguments might have had an * influence on the judgments of the others, and have produced a different report, although he might finally have dissented.

.It is indispensable in the proceedings under this statute, that all the referees should hear the parties, on the matters submitted ; and this fact should appear on the record. It does not appear On this record ; and for this cause the judgment must be reversed.