Lee—Bancroft. Review. Some Terms agon the parties agreed (Nov. 1771) to make 2 questions—1. Whether the reference to Rowe &ca. can be given in Evidence, and if not2

Objected to Judge Hutchinson that he had sat in the Cause as referee. Answerd that the same will lie in reviews and new hearings but Judge Hutchinson then utterly refused to Judge in the Cause. Then Two of the other 3 Judges (there being but 4. in Court) determined the award to be no barr.

The Court determind that the Plaintiff Bancroft shoud not be admitted to offer evidence of any fraud not mentioned in the declaration and therefore the former referees must be the proper persons to settle the facts of fraud laid before them and any previous to their award. Quincy alledges that3 was not laid before referees.

2. That the affair of the joint Orders being altered was not laid before them.

Lowell: 1. Query is this award a barr to the action and it must appear that the party must be heard in Person or by attorney and Bancroft was not there either way. Answered that plaintiff consented becaus he paid the Money in consequence of the award.

Cushing. 4

As to the new evidence. I think this supposed that it's not sufficient to set aside the award.

Ropes. As to the intelligence of arrival its not clear to me that it was laid before the referees. I think the Matters submitted I think 'em the same as now complained of.

And as to Plaintiffs Consent to the award I agree with Brother Cushing.

Justice Oliver. It appears that there was sufficient time to have produced all the Evidence needful before the referees and for this and other Reasons mentioned the action is not maintainable and according to Parties agreement made before the review Ban must be defaulted.