
    William Brann versus Inhabitants of Vassalboro’.
    ■Where a report of the majority of referees is recommitted, for the specific purpose of having them certify that the disagreeing referee acted with them in the. trial of the case, but refused to sign the report, they may thus amend their report, without the knowledge or presence of their dissenting associate.
    Even if the statute provided that referees might certify a report of evidence to the Court, a report certified by one, only, would bg insufficient, especially when it does not purport to be in behalf of the board.
    On Exceptions to acceptance of report of referees; and on Report by Rice, J., on motion to set aside the award and for a new hearing before the referees, or for a new trial in Court, on the ground of newly discovered material evidence.
    This was an action to recover damages for personal injuries alleged to have been sustained by the plaintiff, by reason of a defective highway in the defendant town. By rule of Court it was referred to three referees. The report was signed by only two of the referees, who omitted to certify that the third participated in the hearing, but disagreed with them in their decision and refused to sign the award. The plaintiff’s counsel filed a motion that the report be recommitted for the purpose only of having it thus amended. ' It appears from the bill of exceptions, that the report went back into the hands of the two referees who originally signed it, and, without notice to the third, or his being present or having any knowledge of their action, the two altered the original report and also made the additional certificate thereon indorsed. It was then returned again to the Court, and its acceptance moved by the plaintiff. The defendants •filed objection thereto, because, upon the amendment, on the recommitment of the report to the referees, two of them only undertook to act, and did act without any notice to the other, the third neither participating nor being notified to be present.
    The objection was overruled by Rige, J., who ordered the acceptance of the report; to which the defendants excepted.
    On the defendants’ motion for a recommitment of the report, or for a new trial in Court, the presiding Judge reported the alleged newly discovered evidence for the consideration of the full Court.
    The dissenting referee made a report of the evidence at the hearing before the referees, which he certified as a report, in substance, of all the evidence "according to his minutes taken at the time, and his best recollection —- on which the defendants relied to sustain their motion.
    
      J. JBaJcer argued in support of the exceptions and motion.
    
      S. Heath, contra.
    
   The opinion of the Court was drawn up by

Rice, J.

Exceptions to the acceptance of the report of referees. The case was referred by rule of Court to three referees, who were all present and participated at the hearing of the parties. Two of the referees only concurred in the report as it was presented to the Court. But it did not appear from the report, as originally presented, that the three were in fact present and participated at the hearing. This was an irregularity. R. S., c. 108, § 7; Peterson v. Loring, 1 Maine, 64; Short v. Pratt, 6 Mass., 496.

On motion, and for the specific purpose of enabling the referees, who signed the report, to amend the same according to the admitted fact, it was recommitted. The act authorized by the Court was purely ministerial. It authorized no hearing of parties and required no deliberation of the referees. They wrere only authorized to certify to facts which had already transpired, at a hearing when all were present. The substance of the award could not be changed in the slightest particular. It is not, therefore, perceived that any injury could, by possibility, have resulted from the course pursued. The presence of the dissenting referee could not have changed facts, the . existence of which were conceded, and to which the concurring referees were simply authorized to certify in their report.

As to the motion, the statute does not provide for a report of evidence to be certified by referees to this Court. If it were so, this report does not purport to be certified by the board of referees, nor by the chairman in behalf of the board. Nor does the chairman, in his own behalf, certify it as a full report of the evidence, but as the " substance of all the evidence in the hearing before the referees according to my minutes taken at the time, and my best recollection.”

Such a report, if certified by a member of the Court on a motion for a new trial, would be insufficient. Lakeman v. Pollard, 43 Maine, 463.

It is necessary in motions for new trials, on the ground of newly discovered evidence, not only to present the evidence alleged to have been newly discovered, but also a full report of the evidence produced on the former trial, that the Court may be able to determine whether the additional facts proposed to be proved, are in fact new evidence, and also whether, if admitted in connection with that before in the case, a different result would have been produced. It should also be made to appear, that reasonable diligence had been used to discover and produce the alleged new evidence at the former trial. In all these particulars, the party asking the new trial is deficient. These deficiencies Would defeat the motion, were that part of the case properly before us.

Exceptions and motion overruled.

Appleton, C. J., Cutting, Davis, Kent and Walton, JJ., concurred.  