1 U.S. 161
1 Dall. 161
1 L.Ed. 82
Court of Common Pleas, Philadelphia County
March Term, 1786
A rule had been obtained to show cause, why the report of Referrees should not be set aside, on the ground of their having heard a witness interested in the event of the suit; and, after argument, THE PRESIDENT pronounced the decision of the Court.
The determination of causes by referrees under a rule of Court, has become so frequent and useful a practice, and is attended with so many advantages towards the summary administration of justice, that is would be extremely mischievous to shake their reports by captious objections, where the substantial rules of justice are not violated. The merits of the cause are solely submitted to them, as judges of the parties own chusing, and are not afterward; enquired into by the Court, unless there should appear a plain mistake of the law or fact.
As to the forms of their proceeding, both parties should have an opportunity of being heard, and that in the presence of each other, that they may be enabled to apply their testimony to the allegations. The witnesses, on both sides, are likewise, to give their evidence in the presence of the parties, that they may have an opportunity of cross examining them. No surprise is permitted, such as refusing the parties a reasonable time to bring forward their witnesses, or refusing to hear them when they are brought. These rules, or similar ones, are founded in natural justice, and are absolutely necessary for the due administration of justice in every form whatever.
As to the kind of evidence which the referrees may hear, there always has been, and must necessarily be, in this kind of tribunal, a very great latitude. The parties, generally unassisted by counsel, are permitted to relate their own stories, and confront each other; their witnesses are heard even without an oath, unless the contrary is stipulated, or the referrees require it. Books and papers are inspected and examined by them, without regard to their being such as would be strictly evidence in a Court of Law. And this practice being known to both parties before they agree to the reference, and the advantages arising from it, being mutual, there seems no just reason to complain of it.
In public trials in Courts of law, the judges sit to superintend the evidence, and no interested witnesses are, in general, permitted to give evidence to the jury; but referrees occupy the office both of judge and jurymen; their discretion, therefore, must necessarily be much relied on, and as they are generally unacquainted with the artificial rules of law, they must be guided principally by their own reason. If we were once to set aside a report, because the referrees had heard an interested witness, we should open a door for such a variety of objections, that scarcely a single report would stand the test. Papers not formally or legally proved, or hearsay evidence admitted, would be as fatal to reports, as the admission of interested witnesses, being equal violations of the rules of evidence.