Norton vs. Rooker; Rooker vs. Norton, 1 Pin. 195

Irvin, J. This cause came up on error to the judgment of the district court of Eacine county, given at the November term of said court for 1841. The action was assumpsit instituted by Nelson R. Norton, the defendant in error, against Joseph Hooter, the plaintiff in error, upon a promissory note, to be discharged by a payment in shoes and boots, and an account, and declared on with the usual counts in that form of action ; to which the defendant interposed a plea of the general issue, with a notice of set-off and special matter to be given in evidence. In the progress of this cause, it appears that the court referred it to referees, in pursuance of the authority contained in the 84th

section of “an act concerning proceedings in courts of record.” Terr.

Stat. of Wisconsin, p. 209, by which it is provided that “whenever it shall appear probable, in any cause pending in any district court, that the trial of the same may require the examination of a long account on either side, the said court, at any time after issue joined, in such case, may refer such case by rule of court to referees, who shall be three such persons as the parties may agree upon, and if they shall not agree, the said court shall nominate them, which referees shall hear and examine the matters in controversy, and report thereon,” etc.; and upon which reference report was afterward made and accepted by the court, and judgment given thereon.

It further appears that the plaintiff in error, in the first writ, objected to the reference of the cause, on the ground that he had a right to trial by jury, but which objection was overruled; and it further appears that the defendant objected to the acceptance of the report of the referees for reasons stated in Ms bill of exceptions, the substance of wMch is embodied in his assignment of errors in this court, which is as follows: 1. “ The court erred in referring tMs cause to referees, against the consent of the plaintiff in error, the action being a common law action. 2.

The court erred in ruling that it was not necessary for the referees in this cause to report the facts as found by them in the trial of the cause. 3. The court erred in ruling that it was not necessary for the referees to make a report of what they had allowed of the plaintiff’s claim or disallowed, or what the referees had allowed or disallowed of the claim of off-set of the defendant below. 4. For that the court erred, in ruling that the referees had decided properly in finding that false representations, as proved, did not avoid the note in suit. 5.

The court erred in ruling that the report of the referees be accepted, and in entering judgment thereon.” The first error assigned is upon the construction of the 7th

article of the amendments to the constitution of the United States, wMch is, that “in suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved,” etc., it being contended by the counsel for the plaintiff in error that the law of the Territory before referred to is in violation of this portion of the constitution. To justify a court in declaring a law of the legislature unconstitutional, the case must be clear and manifest. 12 Serg. & Rawle, 330; 3 id. 169. Is this such a case ?

If we be permitted to take the uncontradicted action of the different States on this subject, indulged in, in some instances, for a quarter of a century, as an answer to this question, we should say that it is not; for in some shape or other, has the practice of referring suits to referees exis - ted in some of the States, perhaps, ever since the adoption of the federal constitution, and in States, too, where similar provisions are found in the State constitutions.

In the State of New York, where the provisions of the law in this .respect are similar to those of onr statute, the practice has existed for upward of thirty years. In Pennsylvania it has existed, in even a stronger form, for many years under a clause in its State constitution, similar to that of the United States constitution in relation to trial by jury; and so free from constitutional objection is the subject there considered, that the court refused to consume time in hearing the question argued. 6 Serg. & Rawle, 240; 1 Binney, 416.

That a reference of a cause to referees to hear and examine and report thereon is not a trial by jury, in the usual acceptation of the term jury trial, may not, perhaps, be doubted; nor is it a violation of the constitution of the United States to have a jury differing from that known at the common law, which was composed of the number of twelve, as, perhaps, for different purposes, as the. legislature might think best, they have (and unquestioned as to constitutionality) been composed of numbers varying from six to twelve.

The principal object of the institution of trial by jury seems to have been to give to persons, whose rights are to be inquired into, the right to be tried by their peers. If that be true, then, are those rights less secure when tried by peers, not it is true, called jurors, but referees, who are as solemnly sworn as jurors ? We cannot imagine that they age.

But however differently minds may speculate upon this subject, we cannot see that this is such a clear case of unconstitutionality as to justify a reversal of the judgment of the district court on that point, declaring the law void; particularly too, when we know that all the errors committed by the referees may be as fully corrected by the court as though the trial had been by jury before that court.

Under the second error assigned, it was contended, that as the referees had reported to the court all the evidence in the case, as well as their conclusions from it, they exceeded their powers (deeming them to be to report the facts and not the testimony), and for that reason the defendant below objected to the acceptance of their report. How far this objection is good we shall presently see.

It is true, that had the referees made “report .of what they allowed of plaintiffs claim, or disallowed; or what they allowed or disallowed of the claim of off-set of the defendant below,” as assigned in the third assignment of error, and here noticed in connection with the second, it might have been a source of further satisfaction to the parties ; but had they stopped with such a report, they would have left undone a much more important thing, that is, left the court without the fullest means of ascertaining whether error and injustice had found their way into the proceedings ; and as there is nothing in the law which requires a report of facts alone, we do not see that there was error in the report, which reported to the court the testimony, as well as the sum ascertained by them to be due from the defendant to the plaintiff; and that they were bound to find the sum due is evident from the law itself, which is, “and if the report of the referees or a majority of them, shall be confirmed by the court, and any sum be thereby found for the plaintiff, judgment shall be entered for the same with costs,” etc.

We cannot therefore see that there was error in the decision of the court in these particulars. The fourth error assigned, and which upon an examination of the evidence, we cannot sustain, very conclusively shows that there was no impropriety in that part of the report of the referees which'puts the court in possession of all the testimony.

Finding no objection thus far to the decision of the court below, and seeing nothing in the fifth assignment of error beyond matters already noticed, we affirm the judgment of the district court, with the costs of this case ; but as it appears that both plaintiff and defendant were dissatisfied with the judgment of the district court, as both are here on separate writs of error, and both now before the court, we will now consider the errors as assigned under the second writ. It appears, as has been already stated, that the suit was brought on a note payable in boots and shoes, and in

part consideration of an improvement on public lands which was sold by plaintiff to defendant, and as a part of the contract, plaintiff was to dig and complete a cellar, to finish a woodshed, granary and barn, previous to the time of payment of the note. The time for doing the work and making payment of the note was afterward, by agreement of the parties extended.

With defendant’s plea of general issue, he gave notice that he would give in evidence that the note was given without any consideration ; that he claimed as a set-off a large sum of money, to wit: the sum of $1,000, for plaintiff’s failure to fulfil a verbal contract to finish certain buildings situate on defendant’s farm, in Burlington, and for failing to build a cellar under the house situate on defendant’s farm.

In the account filed by defendant in set-off, is contained the items: “Damages for not finishing barn according to contract, $100; damages for not finishing wood-house according to contract, $100; for failing to stone up my cellar, and finish the same, to my damage $250.” Although the notice is very inartificially drawn, we cannot say that it is so imperfect as to have justified the referees in excluding the evidence.

When it is remembered that this very matter is part of the consideration of the note, and for which it was brought into existence, we think that it was sufficient to notify the plaintiff of the defense intended to be set up by defendant. This notice, though not required to be, in the strict technical form of a plea (8 Johns. 455) must, neverthless, contain all the facts necessary to be stated in a special plea. 13 Johns. 475; 10 id. 142; 8 Wend. 590. It must also state truly the facts intended to be given in evidence. 14 Johns. 89.

Where the notice was in general terms, that the defendant would prove that there were divers judgments, at the time of the sale of the land, outstanding against the plaintiff, which were a lien on the land, and which the defendant was obliged to pay and did pay, in order to prevent a sale of the premises, without specifying any particular judgment, Chancellor Kent, in 20 Johns. 746, says: “It would be unreasonable and unjust that the plaintiff, at the trial, should shut out the defense under the pretense that the defendant did not tell him in the notice, all the particulars of these judgments, when they must have been matters of record, and the defendant stood ready to prove the judgments by the record, and to produce the executions thereon, and prove the payment of them. ” On the same principle, in this case, the note in question and the matters in defense, relate to the same transaction between the parties, and the plaintiff must have known it sufficiently without its being formally stated in the notice.

The referees made a report in favor of the plaintiff, but reduced, by special report, under conditions of law, the plaintiff’s claim, on proof of facts referred to in the notice, and on which the court rendered judgment, after objection on part of the plaintiff, that partial failure of consideration could not be given in evidence and entertained, which is the question now to be considered. On this point there are conflicting opinions, but under the more recent and present practice of the courts, with a view to prevent circuity of action, it is generally allowed.

In the supreme court of the United States, it is decided in some cases, which are collected in a note in 2 Peter’s Oond. Rep. 218, not to be a defense; but on examination, these decisions were probably, mostly made on the general issue. In 2 Wheat. 13, it is decided by the court not to be a defense under the general issue. So this court decides.

To give evidence of a partial failure of consideration, a notice must accompany the plea of the general issue. 6 Binney, 198; 1 Serg. & Rawle, 477; 8 id. 178; 8 Cow. 31; 2 Wend. 431; 12 id. 246; 3 id. 236; 4 id. 483; Graham’s Pract. 231, 232; 7 Cow. 322; 3 M’Cord, 169; 1 Cowen’s Treat. 174; Bailey on Bills (Boston ed. of 1826), 340, in notes; 3 Kent’s Com. 78, 79, 80.

It is true that unliquidated damages cannot be set off, but this is evidence of matters in diminution of the plaintiff’s demand, arising out of the same transaction, and not technically an off set, although defendant called it so in his notice; and this is mere matter of form, and not of substance, and does not vitiate the notice, and particularly does it not vitiate it in this form of action, which is in its nature equitable.

The third error assigned, that the defendant having once promised to pay the note in the hands of an assignee, was ever after barred from setting up a want of failure of consideration, does not appear to have much in it. This note was not negotiable, and it does, not appear that the suit was for the use of a third person, but on the contrary, all off-sets and accounts between the parties seem to have been gone into. There is nothing appearing on the record to show but that the plaintiff was the actual and legal owner of the note at the time of the suit.

The evidence affords sufficient explanation of the circumstances to settle the ownership of the note in the plaintiff. We are therefore, -on this branch of the case, constrained to affirm the judgment of the district court, with costs. Note.—The provisions of

chapter 288, Laws of 1864, authorizing compulsory references in certain cases, are held to be constitutional. County Board of Supervisors v. Dunning, 20 Wis. 210.