Cox v. Trustees of Pearce

Per Curiam. The deposition of Joseph Sears was taken on the 16th August, 1809; and when it was offered to be read before the referees, in December, 1809, he was dead. This deposition was taken by the trustees, when Sears was examined by them on the claim of Cox,- and the statute says, (Laws, vol. 1. p. 240.) “ that the trustees, or any two of them, are competent to settle all matters and accounts between the debtor and his creditors, and to examine any person on oath concerning the same, which oath may be administered by any of the said trustees, two of them being present.” In this examination the trustees act as the official agents of both parties, and under obligations, official and religious, to act impartially. A deposition taken before them, when they were examining the witnesses, ought to be read afterwards, upon the death of the witness, as much as a deposition taken before a coroner’s inquest, or the Onondaga commissioners, and it ought equally to be admitted. (2 Johns. Rep. 20.) On the merits of the case, there is not sufficient ground to interfere with the determination of the referees. The referees are stated to have been appointed in pursuance of the act, which is perfectly fair and impartial between the creditor and the trustees. The act says, that the referees “ shall finally settle the [300] controversy.” And though the court may look into the merits of the controversy, without any objection to the behaviour of the referees, yet they certainly will require a pretty strong case before they interfere and set aside the decision. From the testimony of Sears and of Clows, there is no doubt but that the demand of Cox was properly rejected, and though the credit of Clows was attacked, it was also defended, and it was still a question for the referees how far his credit was destroyed; and if it had been, there was nothing to touch the credit of Sears. The motion to set aside the report ought to be denied. Spexcer, J. not having heard the argument, gave ne opinion. Motion denied.