Paine v. Maine Mutual Marine Insurance

Peters, J. The auditor, at the hearing before him, admitted certain invoices, bills of lading, and protests as documentary evidence to establish the losses alleged to have been sustained by the [571] claimants under tlieir insurance policies. The papers were not legal evidence. They were merely the statements of the plaintiffs themselves or of third persons. An invoice is usually a paper made out by the owner or shipper of the cargo. Lord Ellenborough (Dickerson v. Lodge, 1 Stark. 226) said a bill of lading was “ nothing more than the declaration of the captain.” Lord Tenterden (Abb. Ship. 380 English paging) styles a protest “ a declaration or narrative by the master,” and says “ it cannot be received in evidence for the master or owners, but may bo received against him or them.” Lord Kenyon entertained the same view. Christian v. Coombs, 2 Esp. 489. In Senat v. Porter, 7 T. R. 158, its admissibility was not regarded as “ an arguable question.” A ship’s log (similar to a protest in character) is ouly evidence to contradict a witness who has kept it. Rundle v. Beaumont, 4 Bing. 537. United States v. Gibert, 2 Sum. (C. C.) 19. Dickerson, J. in Stephenson v. Piscataquis F. & M. Ins. Co., 54 Maine, 73, speaking of a survey (a document of similar import) says, “ neither plaintiff nor defendant can use such a document in evidence without consent of parties.” It is the general and well nigh universal doctrine. 2 Phil. Ins. 663, and cases cited. Fland. Ship. 284. 2 Pars. Mar. Law, 489, and cases there cited. 3 Kent Com. 389, note. Abb. Ship. supra. An auditor cannot receive any but legal evidence. lie is not an independent tribunal like a referee chosen as such by the parties. He is a part of the court itself which intrusts him with its commission. Like any other tribunal of law, he must be governed by legal principles. Extreme injustice might be suffered by parties if it was otherwise. If it was as contended by the claimants, a report might be made by an auditor against a parly founded entirely upon illegal evidence, and the burden created by it could be removed by such party in this court only by legal evidence ; a case made out by illegal proof to stand until overcome by legal proof. Besides, if an auditor can set himself at all above the law, what limits can be prescribed to the exercise of such discretion ? He must be required to act within the law, or he must have the right without limitation to act outside of it. The general proposition is nowhere denied that an auditor must decide [572] legal questions according to law. Whether testimony is admissible or not is but a question of law. Claimants’ counsel puts great stress upon the fact that there are decisions sustaining auditors in allowing parties to testify before them when such parties could not testify in court. But this power was not one usurped by auditors. It was one entrusted to them by the courts. It was legal and not illegal for auditors to do so. When the legislature authorized the appointment of auditors the power to examine parties as witnesses was granted by implication. And parties testifying could, explain their accounts and vouchers. In the case before us the papers were received as evidence per se of the matters contained in them, not in connection with other evidence and as a part thereof, but, as the report declares, “in addition” thereto. By the earlier common law, auditors were not even allowed to administer an oath to parties but in few instances. The rule was extended to still other cases by the statute of Anne, and the power became in this country more and more enlarged by legislatures and courts. Bac. Ab. Accompt. G. 1 Story Eq. Jur., § 447, and note thereto. Wheeler v. Horne, Willes, 208. We have been cited to no case, nor have we met with one, that permits auditors to receive and consider illegal evidence. The rule is correctly stated in Oliver’s Precedents (Account), that “ their (auditors’) report may be objected to, either on account of any mistake of the law, or any improper admission or rejection of evidence, or because they have taken into consideration matters not submitted to them.” This accords with the practice observed in many cases. An auditor cannot decide the question of costs. Fisk v. Gray, 100 Mass. 191. Has no authority to disallow an -item allowed by the pleadings'. Snowling v. Plummer Granite Co., 108 Mass. 100. Could not allow a person to testify who was interested as baihof the party calling him. Newton v. Higgins, 2 Vt. 366. Nor allow an interested witness to testify, although the party himself could. MeGonnell v. Pike, 3 Yt. 595. Nor receive oral testimony of the contents of a paper that could be produced. Putnam v. Goodall, 31 N. H. 419. Depositions (for defects) should be objected to before auditor, or the objection is [573] removed to afterwards using them in court. Gould v. Hawkes, 1 Allen, 170. If the evidence is immaterial and not prejudicial to the dissenting party, its wrongful admission is not sufficient to set an award aside. Kendrick v. Tarbell, 37 Vt. 512. Yery many cases might be added. These, for illustration, will suffice. Appeal dismissed; with costs to respondents. Appleton, C. J., Walton, Barrows, Daneorth and Libbey, JJ., concurred.