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 *492court 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.

[*]

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

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.