1786.
As to the forms of their proceeding, both parties fhould have an opportunity of being heard, and that in the prefence of each other, that they may be enabled to apply their teftimony to the allegations. The witneffes, on both fides, are likewife, to give their evidence in the prefence of the parties, that they may have an opportunity of crofs examining them. No fuprife is permiited, fuch as refufing the parties a reafonable time to bring forward their witneffes, or refufing to hear them when they are brought. Thefe rules, or fimilar ones, are founded in natural juftice, and are abfolutely neceffary for the due adminiftration of juftice every form whatever.
As to the kind of evidence which the referrees may hear, there always has been, and muft neceffarily be, in this kind of tribunal, a very great latitude. The parties, generally unaffifted by counfel, are permitted to relate their own ftories, and confront each other ; their witneffes are heard even without an oath, unlefs the contrary is ftipulated, or the referrees require it. Books and papers are infpected and examined by them, without regard to their being fuch as would be ftrictly evidence in a Court of law. And this practice being known to both parties before they agree to the reference, and the advantages arifing from it, being mutual, there feems no juft reafon to complain of it.
In public trials in Courts of law, the judges fit to fuperintend the evidence and no interefted witneffes are, in general, permitted to give evidence to the jury ; but referrees occupy the office both of judge and jurymen ; their are generally unacquainted with the artificial rules of law, they muft be guided principally by their own reafon. If we were once to fet afide a report, becaufe the referrees had heard an interefted witnefs, we fhould open a door for fuch a variety of objections, that fcarcely a fingle report would ftand the teft. Papers not formally or legally proved, or hearfay evidence admitted, would be as fatal to reports, as the admiffion of interefted witneffes, being equal violations of the rules of evidence.
OGDEN verʃus ASH.
T
HIS was an action upon a policy of infurance on the Ship Brothers, which came before the Court upon a cafe ftated, wherein the fingle queftion was, whether a warrant inferted in the policy, had been complied with on the part of the infured, or not ? After argument, THE PRESIDENT ftated the point, and delivered the opinion of the Court.
SHIPPEN,Preʃident.– The policy in this cafe, is on the outward bound voyage, wherein it is warranted " that (illegible text) will be
