Drew v. Mulikin

5 N.H. 153

Opinion

By the court.

The objection made to this report has always been held to be a fatal objection in Massachusetts on the ground that a referee should not, by any act of his own in another capacity, give himself jurisdiction in a cause, which he is to hear and determine. 1 Mass. Rep. 158, Drew v. Canady; 7 Mass. Rep. 73—74.

The ease of A. McMurphy v. W. White, in this court, Rockingham, February Term, 1809, was a writ of error brought to reverse a judgment rendered by a justice of the peace upon a report of referees made in pursuance of a rule mada by the justice under the statute. The error assigned was that the justice who rendered the judgment was one of the referees, and for this cause the judgment was reversed.

And we think the law must now be considered as settled, that a rule of reference cannot in any case be legally made before a justice of the peace who is one of the referees named in the same rule.

Report rejected.