Opinion
Fall Sessions, 1849.
Patterson, for plaintiff.
Bayard, for defendant.
THIS was an action on an award. Plea, non-assumpsit.
One of the referees was called as a witness to support the award, and objected to.
Mr. Bayard. — It is well settled in this State, that an arbitrator cannot be examined to prove his own authority, or to support his own award. It would be exceedingly dangerous.
For many purposes a referee may be examined, but not to sustain his own authority, or to support the award. No more can a juror be called to support or to impeach his verdict; nor a judge his decision.
Mr. Patterson. — In the case of Pierson vs. Shaw, at this term, the court allowed the arbitrators to prove what was before them.
It is the policy of the law to open the means of full investigation, so as to do justice. The arbitrators may be important witnesses, apart from their character as referees, and their evidence might thus be excluded. These referees were the material witnesses in the case, as well as the referees.
But arbitrators have frequently been examined in our practice. (4 Harr. Rep., 234; Billing's Law of Awards, 219.)
The Court confined the argument to the questions, whether the arbitrator could be examined to prove his own authority, that is, the submission to him; or in support or opposition to his award.
In the case put of an arbitrator having knowledge of the facts as a witness, his becoming a referee would not prevent his being a witness. So in an action not on the award, a referee might prove admissions of the parties, as any other person, who heard the admissions might prove them. ( Slack vs. Buchannan, Peak's N. P.) So where the submission was made a rule of court, arbitrators have been allowed to prove what was before them; but this was on an objection to the confirmation of the award by the court. (4 Harr. Rep., 234.)
But as to awards not made under rule of court; and where an action is brought upon that award, the referees are, upon grounds of public policy, incompetent witnesses to prove the submission to them, or to sustain, or destroy their award.
The plaintiff was nonsuited.