
    EYRE’S Executors against FENIMORE.
    Referees are bound by legal rules of evidence. An executor may Dot be a witness before them.
    This was an action brought on a bond given to the testatrix, Sarah Eyre, in her lifetime, by the defendant; plea, 
      non est factum, and payment. The case was referred at circuit, and the referees reported in favor of the plaintiff.
    
      G. Kinsey,
    
    on the part of the defendant, moved to set aside the report of referees, on the ground that the referees, on the hearing of the cause, swore and examined on the part of the plaintiffs, one of the plaintiffs as a witness, although it was objected to at the [679] time, by the defendant. The" fact was made out by [*] the affidavit of two or more of the referees, and not denied. The referees, on cross-examination, say that the testimony of the plaintiff was only in corroboration of other testimony; and that they would have made the same report, if he had not been examined.
    
      Mr. Kinsey said that it was against reason and justice, and at variance with an established principle of law, that a party should be a witness in his own cause. That although he was an executor, suing in the right of his testatrix, yet the money received, vested in him, he was the actual party. Besides, the executor has an actual interest; he has a commission on all the money he recovers. If the arbitrators err in point of law, the court will set aside the award. 1 Vesey, 1%.
    
    
      I. H. Williamson, for the plaintiff,
    said that the fact to which the witness testified, made a difference. The referees testify that they admitted the evidence of the executor, but reserved to themselves afterward to judge of its legality; and that they would have made the same report had the executor not been examined; that they resolved to hear all the testimony on both sides, and then judge of its legal consequence. This was perfectly correct. That the referees were not bound dowm by the strict rules of evidence; that the referees were judges of the parties’ own choosing, and were supposed to be ignorant of the nice distinctions in law; that no case could be found in the books, where the report of referees was set aside on the ground of the admission of improper evidence; that there must be corruption, or gross partiality in the referees, to justify the court in setting aside their report, or at least, practice made on the arbitrators, or some palpable irregularity. 1 Salic. 71, 1 Stra. 801, 2 Burr. 701, 1 Atk. 64, 8 Atk. 572, Loft. 554, 8 Ves. Jun. 18. That on submitting a cause to reference, the parties withdrew their cause from the court to a tribunal of their own election. 8 Johns. 369,2 Wash. 14, 1 Day’s Cases, 158. It is no cause to set [*] aside an award or report, because the arbitrators or referees admitted improper evidence. '2 Johns. 117, 1 Dallas, 161. But the executor had no interest in the cause; he was only a nominal party on the record; his being a party on the record, per se, was no objection to his being a witness, unless he had an interest in the cause; an executor may be a witness respecting the estate of the testator. Oil. L. E. 120, 4 Burr. 2254, 1 Mod. 107, 1 Blae. Rep. 867. Den v. Allen, in this court, State Rep. 43- Again, the court will never set aside a verdict, much less, a report of referees, for an irregularity in proceeding, if substantial justice has been done, and he contended that it was in this case; and that it [680] was incumbent on the defendant to show that injustice had been done him, before he could ask the court to set aside the report.
   Pennington, J.

In case of verdicts, the court at bar, or judge at the circuit, hear the whole cause; the merits in such case, is before the court; but how can you bring up the merits iu cases of hearings before referees ? they will, it is to be presumed, give a favorable answer in support of their own decision.

Griffith, on the same side, in going over the ground taken by Mr. Williamson, contended with great earnestness, that referees, like arbitrators, being judges of the parties’ own choosing, were not bound by any rules of evidence; that they might, at their discretion, admit the parties as witnesses, or take any other method which they might in their discretion think proper, to ascertain the facts in the cause, and the court had no authority to review their proceedings in this respect; that although courts had at times shown a disposition to intermeddle, yet it was not founded on any legal principle, but arose from a disposition in the mind of man to extend its own authority.

The counsel for the defendant were stopped by the court.

[*]

Kirkpatrick, C. J.

After consulting the other judges, said, let the report of referees be set aside.

Pennington, J.

Observed that whatever might be the power of the court over awards of arbitrators made in cases out of court, of which he gave no opinion, yet when a cause is actually pending in court, and referred by rule of court to referees, he could not bring his mind, to believe that the referees had an authority given them to dispense with the rules of evidence, and substitute their own capricious notions in place thereof. It was to his mind, a doctrine fraught with mischief. If the referees are bound by rules of evidence, was it legal to swear the party as a witness ? He would not say but cases might arise, where a party on the record, put on for form sake, and merely nominal, having no interest in the cause, might be admitted; but this was the common case of an executor suing on the bond of his testator; he was the actual party, the actor. If this was law, it would be practiced every day; yet he believed that it was the first time it had been attempted to be justified, as a legal rule of evidence.

Report of referees set aside.  