
    [*] LITTLE against SILVERTHORNE.
    OH CERTIORARI.
    Justice’s docket must contain report of referees and state that they were sworn. A justice cannot act as referee in his own court.
    
    The cause below was submitted to arbitrators, as the justice states in his docket. The justice and two other persons were made arbitrators by consent, and proceeded to hear and determine the cause, and the justice made an entry of the proceedings and trial before the arbitrators in his docket, the same as though the arbitrators had been a jury, and the justice, as an arbitrator, subscribed the record. It did not appear by the record of the justice that the arbitrators had been sworn.
    It was moved to reverse the judgment of the justice, rendered on this award.
    1st. For that the arbitrators had not been sworn before they heard and determined the cause.
    2d. That the arbitrators did not make their report in writing to the justice.
    
      
       S. P. ante, 415. Post, 954.
      
    
   By the Court. — It

has often been determined that it must appear on the record that the referees were sworn. The whole proceeding is of a singular nature. We presume that the word arbitrators was, through inattention, made use of in the place of referees. There is however an incongruity in a court consisting of but one judge, for that judge to be a referee; for in case of controversy respecting the regularity of the proceeding, he is then to be the sole judge, and review’ his own [502] conduct; but in case this is done, he cannot mix the duty of referee with that of justice, the proceeding should be the same as though he was not a justice, and a regular report made to the court, and entered at large on his docket. This judgment must therefore be reversed on both objections.

Judgment reversed.

Cited in Inslee v. Flagg, 2 Dutch. 368.  