M'Inroy v. Benedict

11 Johns. 402

Opinion

Per Curiam.

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.