afked if there was not a fecond agreement under the rule of reference; I wish you to ftate the reafons for entering into that agreement?

P. As Mr. Bayard did not attend at the first meeting, I went in fearch of him at the fecond, and met him in the ftreet, and told him the referees were met; I then went to the referees and told them Mr. Bayard was gone into the infurance office; and a written notice was agreed to be fent to each of the parties at the next time. When Mr. James Yard was asked to fubfcribe to the policy of infurance, he faid that the brig was a damned old hulk, or fomething of that kind, but he would fubfcribe if I would give a premium of one half per cent more, than had been at first propofed, and he would enfure notwithftanding all the rifk; this, though I believed the veffel to be found, I agreed to do, and Mr. Yard fubfcribed for himself and all the other underwriters, except Pettit & Bayard; and becaufe Pettit & Bayard had only 500 dollars at risk and I had nearly 5000 dollars depending, the referees fuggested, as the nature of the infurance was materially different, the propriety of taking out a new rule, to be fubfcribed by all the underwriters, except Pettit & Bayard; to which all of the underwriters agreed, and Pettit & Bayard stood upon the original agreement.

Rodney. I afk the witnefs whether, when he went to the prothonotary's office, he did not file the first reference in the office?

P. I did, fir,

R. Was there a fubfequent agreement entered into with Mr. Bayard which authorized the choofing of an umpire; and if there was, whether the umpire met the referees and investigated the claim in the prefence of Mr. Bayard?

P. Yes, Mr. Bayard was prefent; he came to the door of the room in which the referees were fitting and appeared to be furprized that I was with the referees when he was not prefent; he faid I ought not to be there unless he was; I replied that it was as much his duty to be there as mine, and if he did not. attend to his bufinefs it was not my fault.

R. Did Mr. Bayard attend at any of the previous or fubfequent meetings?

P. Yes, I perfectly recollect his fitting at the table with the referees and the umpire, and defired to have fome papers belonging to the cafe, which were given to him, and he then went into a general difcuffion of its merits with the umpire, and endeavored to convince him that he ought to decide in his favor.

R. I ask the witnefs who was the first to propofe the choice of an umpire; if Mr. Bayard did not, after he found the re

ferees were of different opinions, fay it would be better to call in the third perfon?

P. I recollect that Mr. Bayard was the first to propose an umpire when he found the two referees were of oppofite opini ons; I objected to the choice of an umpire then, and expreffed a hope that the referees would agree without reforting to that measure.

R. Had Mr. Bayard regular notice of the first meeting, and did he attend; and had he a full opportunity of fupporting his pretenfions?

2. He attended at the time and place affigned and had as full an opportunity to maintain his cafe as I had myfelf.

Mr. Dallas. The questions put to the witnefs by the counfel for the profecution, renders it neceffary for me to afk fome other questions. I afk the witness whether one of the referees did not live in his houfe during the whole of the tranfaction?

P. Yes, Mr. Henry lived in the fame houfe with me.

D. Was he not your partner in trade?

P. No. He afterwards became my partner.
Adjourned 'till eleven o'clock to-morrow morning.

WEDNESDAY, Jan. 9, 1805.

HUGH HENRY-sworn,

Owing to an indifpofition, under which I labor at at prefent, owing to a very bad cold, I am apprehenfive I fhall not be able to make my felt heard by this honorable and auguft tribunal.

Mr. RODNEY. Pleafe to ftate to the Court, what you know on the fubject of the reference between Pettit and Bayard, and Thomas Paffmore, and afterwards what you know, relative to the proceedings of the Supreme Court, in which Mr. Paffmore was concerned.

Mr. HENRY. I would obferve, fir, that being one of the referees, if I am to give the proceedings in detail, I have to requeft of this honorable body to recur to my notes, if my memo ry should fail. !

Mr. RODNEY. I wish the witnefs, as to the principal points, to be as minute as poffible, from memory, and not from his notes, unless afterwards he fhall find them necessary.

Mr. WHITEHILL, President of the Court." He may make ufe of his notes the Court are agreed."

Mr. HENRY. I would obferve, Mr. Speaker, my notes are lengthy. I may find them neceffary to give the proper infore mation to this honorable Court.

I recollect after being informed by Mr. Paffmore, of his hav ing taken the liberty, (as he expreffed it) of having inferted my name as an arbitrator, in an amicable fuit in the Supreme Court, wherein he was plaintiff, and Pettit and Bayard defendants, on a policy of infurance on the brig Minerva.-On hiş informing me of the circumftance, I replied, I was forry he had thought of me as an arbitrator, it having been always difagreeable to me, to be either a juror, or an arbitrator, arifing from my diflike to law fuits, or any kind of litigation, when it could be avoided; after fome further converfation with Mr. Paffmore, from reafons that he affigned to me, I agreed to ferve, of which, I believe, from my own knowledge, that Mr. Bayard was informed of it, as also of the time of meeting of the referees I draw this conclufion from Mr. Bayard's meeting us; at the time appointed, Mr. Pearce, the other referee, with Mr. Bayard, attended at the coffee-house. We went up stairs into one of the rooms, and fat down; the rule of Court, I think was produced, authorizing us as arbitrators to proceed in the bufinefs; Mr. Paffmore then produced his letter of abandonment to the underwriters, with a proteft from the Captain of the Brig, the policy of infurance, and feveral other papers-I can't particularize; after which he went into a statement of his claims, urging the payment of them, and complained much that he had been fo long kept out of his money.

Question by Mr. RODNEY. Was Mr. Bayard prefent all this time?

H. Yes.

After which, Mr. Bayard replied, giving feveral reasons why he had not paid, and concluded from the exifting circumstances, that he ought not to pay; after which, Mr. Pearce, the other arbitrator, went a confiderable length of an examination of the ftate of the cafe, as it appeared to him from the documents and reafons that had been made-had been offered-to justify him in the opinion, that he then entertained of the ftate of the bufinefs; after which, I followed him, and endeavored to fhew from the information before us, what I conceived according to the beft of my judgement, what the real ftate of my opinion was in its prefent ftage. I think it was at this meeting, that Mr. Faffmore began to relate what he had been told by the mate and cook of the Brig, but we conceived the evidence to be inadmiffible.

R. On what day did this happen?
H. About the 13th of July.

This, as I recollect, is all that paffed at our firft meeting. At our next meeting, which I think was in about three days after, we generally met on Wednesdays, and I think on Saturdays, if my memory serves me-but will not be positive,

R. Was Mr. Bayard prefent, when you adjourned to the fe cond day?

H. I do not recollect that he went away-I think he was prefent at the adjournment.

At our fecond meeting, as I have obferved, we come to understand that Pettit and Bayard had figned the policy, under fomewhat different impreflions of the brig Minerva, though they had received the fame premium as the other underwriters; the referees, therefore, thought there might be a probability of their finding in favor of the plaintiff, in one cafe, and not in the other; as we understood Pettit and Bayard were the oftenfible perfons, and the decifion in their cafe fhould be obligatory on all the other underwriters; we thought it was too great a rifk for Mr. Paffmore, he having feveral thousand dollars depending on the award, and Pettit and Bayard only 500; we, therefore, told Mr. Paffmore, it would be better to have another rule of Court made out, and to get all the other underwriters, except Pettit and Bayard, to fign the rule, and to give them notice to attend, and alfo to notify the hip carpenter, who had repaired the Brig, to attend at this meeting alfo ; mention had been made alfo, by Mr. Paffiore, I believe, of the pilot of the ship Margaret, being a neceffary witness, which we also gave him orders to notify, to attend our next meeting; at this meeting, Mr. Paffmore informed the referees, that Mr. Bayard was on the coffee-houfe fteps, that he told him the re, ferees were up ftairs, but he did not attend.

R. Was Mr. Bayard prefent at the previous meeting?

H. Yes; he was prefent at the first, but not at the fecond meeting. We now clofed the meeting and adjourned.

Mr. STEELE. If I understand the witness rightly, he is now fpeaking of the third meeting?

H. No, fir, the fecond; at our next meeting, which was the third (bere the witness feeling bimself fatigued, requested to be indulged with a seat, which was granted)-the fhip-carpenter, Mr. Phillips, attended and confirmed his written teftimony, that we had before us; in the courfe of the conversation with Mr. Phillips, he made feveral obfervations in comparifon with her and feveral veffels that he had repaired. As the feaworthiness of the veffel appeared to be the only objection made by Mr. Bayard and the other referee, to the validity of the policy, I was the more particular to have every information refpecting the fea-worthinefs of the veffel; in confequence of

1

which, I put this question to the fhip-carpenter-" were you difpofed to take a voyage to any port in Europe, or would you risk yourself in her, (the Brig)?" His answer, to the best

of my recollection was, that he would not have any objection ; that he would as foon go in her, as any veffel in port." I think that was the reply. After which, Mr. Pearce obferved, (the other referee) that from the teftimony of Mr. Phillips, his opinion was much altered respecting the veffel; for he had had very unfavorable impreffions refpecting her,and much prejudice against her, as a bad veffel; that the policy of infurance had been offered to him, and that he had refused to underwrite her under those impreffions. After the fhip-carpenter went away, Mr. Bayard joined the referees, when we related to him what the ship-carpenter had faid-gave out in his teftimony; when he replied, he did not think much of what Phillips faid, he would fwear any thing; that we might get a fhip-carpenter to fwear to any veffel-this was the expreffion; after which, the referees went into a difcuffion of the matter: After which, Mr. Bayard obferved, the referees not agreeing in opinion, that it would be beft to choose a third perfon; accompanying it with this obfervation, " that Mr. Henry had already made up his mind on the fubject," which I thought at the time it was made, it was highly improper, and I thought did not comport with that candor, that I expected in a gentleman; for I had not made up my mind finally at the time, and was deter mined I would not make it up, until we had got every information I conceived neceffary for that purpose. I therefore replied to Mr. Bayard, "that I had not come there as the advocate of Thomas Paffmore, I came there as a referee to arbitrate and fettle the matters at variance betwixt him and Mr. Paffmore, according to the beft of my judgment, and which I was determined to do." Mr. Paffmore then obferved, "that he hoped there would be no occafion to call in a third perfon; that it would appear much better, if the referees could fettle the bufinefs themselves, which he hoped they would do"-I think was the expreffion. We came to no conclufion at this meeting; but I had reafon to beleive Mr. Pearce's opinion was fomewhat altered as to what he had faid refpecting the fea-worthiness of the veffel. We adjourned the meeting, and met, I think, in three or four days after. I have no dates, I cannot be parti cular.

Mr. Rodney. Was Mr. Bayard prefent when you adjourned? H. According to the best of my recollection, we broke up together. At our next meeting the pilot of the hip Margaret came forward.--I will obferve-I was about to obferve that this was not in teftimony, only hearfay; whether it is proper or not that I fhould proceed to give

R. Pleafe to confine yourself as much as poffible to the di rect evidence.