
    Daniel Short, Plaintiff in Error, versus John Pratt and Micah Pratt.
    Where referees are appointed pursuant to the statute of 1786, c. 21, it is indispensable that they all hear the parties; although the major part only may make report.
    A writ of error lies on a judgment of the Common Pleas, rendered on the report oí referees so appointed.
    
      The writ of error in this case was brought to reverse a judgment of the Common Pleas for this county, rendered at the last April term, on a report of referees made under a rule entered into before a justice of the peace, pursuant to the statute of 1786, c. 21.
    Several errors were assigned ; but one only was insisted on, mz., that it did not appear by said report, that all the referees named in the submission were present at the hearing, two only having signed the report.
    It appears, from the record sent up, that the referees agreed upon a report in November last, which was made to the Common Pleas in December following. The court would not receive the report, but recommitted it. At the next April term, two only of the referees (three being appointed) made a new report, on which the judgment complained of was rendered. The tenor of the report, as recited in the judgment, is, “ We, the referees above named, upon a resubmission of the above rule by the Hon. Court of Common Pleas, have met on the 4th of April, 1810, having previously given due notice to the parties, &c., and, having heard their several pleas, &c., do award, and this is our final award,” &c. The award then follows, and is signed by two only of the referees.
    * The defendants in error pleaded in nullo est erratum. [ * 497 ]
    
      Hulbert, for the plaintiff in error,
    submitted the cause to the decision of the Court without argument.
    
      Dewey, for the defendants in error,
    suggested a doubt whether, as the proceedings in the case before the Court were not according to the course of the common law, a writ of error lay. — But the chief justice said that point had been solemnly settled in a case which formerly came up from the county of Nantucket; and that, if error would not lie, a party aggrieved by a judgment rendered under this statute would be without remedy. 
    
    
      Dewey then suggested that it might be understood, from the report of the two referees, that the whole of them attended the hearing, which was all that could be required. The report begins, “ We the referees above named have met,” &c. This expression must intend that all the referees met and heard the parties, although two only agreed in the report. But, at any rate, this was a question of fact, which the court below would of course inquire into, and they probably satisfied themselves that the third referee was present; and this Court will not now presume that he was not.
    
      
       [Error was not the proper remedy, as the proceedings were not according to the course of the common law.— Ed.]
    
   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.  