Upon the award before us it appears that at. the hearing of the parties, on the 29th day of March 1820, all three of the referees attended, and all of them signed the report, which was presented to the Circuit Court of Common Pleas at April term following, and was then recommitted. It also appears that all three of the referees never met again to reexamine the cause.; but that two of them, in the absence of the third, who, as well as Peterson declined or neglected to attend, without any farther hearing of the parties, or any farther proof, ratified the report which all had signed, and reported that Loring should recover the sum mentioned in the report of 29th March. The acceptance of this report at the August term following, and the judgment rendered thereon, is the error assigned.
Two cases have been cited, as nearly resembling the case at bar ;—one by the plaintiff—the other by the defendant. The plaintiff relies on the case of Short v. Pratt, 6 Mass. 496. In that case all the referees had made and signed their report, which, beins; presented to the next Court for acceptance, was recommitted. At the following term of the same Court two of *67the referees made a new report, on which the judgment complained of was rendered. In that report it appears that they had met the parties, and having heard their several pleas and allegations, made that as their final award. Whether the sum reported by this final award was the same as that mentioned in the former; or whether it was a greater or less sum does not appear.* In that case the Chief Justice observed, that “ all the referees must hear the parties; and if they do not all agree, the greater part may proceed.”
The defendant has cited the case of May v. Haven, 9 Mass. 325. This also seems analogous to the case before us, and is considered by the counsel for the defendant as reversing the decision in the case of Short v. Pratt. In order to arrive at a correct determination, we do not consider it important to examine the principles of any of the other cases which have been cited. In the case of May v. Haven it appears that all three of the referees made the report, which was presented for acceptance, and recommitted ; and that after the recommitment two of them met the parties, but the third declined attending;— wherefore, without any further hearing of the parties,” they reported as before, adding costs.
It was contended that the first report had lost its effect, and become a nullity by the recommitment. The Court thought otherwise,—sanctioned the last report, and affirmed the judgment of the Court of Common Pleas, on the acceptance of the report. With these two decisions before us, we are to decidí' whether to affirm or reverse the judgment complained of in the case at bar.
If the two cases "were at variance, we should perhaps be inclined to respect the authority of the latter decision, on the ground that the Court intended it as a revision and reversal of the opinion delivered in the former. But we consider both cases as perfectly consistent, and founded on correct principles. *68In the case of Short v. Pratt two only of the referees met the parties after the recommitment—heard their pleas and allegations—and made a new and final award between the parties ; nor does it appear that there was any proof before the Court that the absent referee assented to, or even knezo its amount, or the principles or facts on which it was founded. Speaking of such a report, the Chief Justice observed that all the referees must hear the parlies. In the case of May v. Haven all the referees made and signed the first report; and after the recom-mitment two of them met, and the third declining to join them, they proceeded no further,—had no further proof or hearing,— but merely ratified the first report, to which all the three had previously agreed. In essence, it was the report of all, though signed the last time by two only, of the referees. The arguments and opinions of the absent referee had produced their proper effect, at the hearing of the parties when all were present.
The case at bar is similar to that of May v. Haven, and must be governed by similar principles. Bradshaw, the absent referee, had once agreed to, and signed, a report, awarding precisely the same sum in damages to Loring, as was reported by the other two in his absence. No change was made in the report; none had taken place in the opinions of the referees 5 nor was any opportunity offered which could produce such change. We all are satisfied that there is no error in the judgment complained of, and of course the
Judgment is affirmed, with costs for the defendant.
The Reporter has since ascertained that the first report, in the case cited, was in favour of Short; and that the second, by two of the referees, was in favour of Pratt & al. The observations of Parsons C. J. are therefore applicable to a new report, difftrent from the former, and made bv two of the-referees, the third not having been present at .the hearing and the case, thus explained, is not contradicted by the case of May v. Haven.