JOSEPH ROOKER, pl'ff in error, vs. NELSON E. NORTON, def't in error; and NELSON R. NORTON, pl'ff in error, vs. JOSEPH ROOKER, def't in error, 1 Bur. 33

Judge Irvin delivered the following opinion of the court in both cases: JOSEPH ROOKER vs. NELSON R. NORTON. This cause camo up on error to the judgment of the District Court of Racine 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 Rooker, 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,” (Statutes of Wisconsin, page 239,) by which it is provided that “ whenever it shall appear probable in any cause depending in any District Court, that the trial of the same may require the examination of a long account on cither 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,” &c., and upon which reference report was afterwards made and accepted by the court, and judgment given thereon.

It further appears, that the plaintiff in error objected to the reference of the cause, on the ground that ho had aright 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 his bill of exceptions, tbe substance of which is embodied in his assignment of errors in this court, which is as follows: “ 1. The court erred in referring this 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 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, which is, that “ in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall he preserved,” &.C., 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 bo clear and manifest. 12 Sergt. & Rawle, 330. 3 Sergt. & Rawle, 169. Is this such a case?

If wo be permitted to take the uncontradictod action of the different stales on this subject, indulged in, in some instances, fot a quarter of a century,as an answer to this question, wo should say that it is not; for, in some shape or'other, has the practice of referring suits to referees existed 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 constitution.

In tho state of Now York, where the provisions of the law, in this respect, arc similar to those of our statute, the practice has existed for upwards of thirty years. In Pennsylvania it has existed, in even a stranger form, for many years, under a clause in the 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 Sergt. & Rawle, 240. 1 Binney, 416.

That a reference of a cause to referees to hear and examine and report thereon, is nota trial by jury in the usual acceptation of the term jury, may not, perhaps, be doubted; nor is it a violation of the constitution of 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 are.

But however differently the mind may speculate upon this subject, we cannot see that this is such a clear case of unconstitutionality as to justify a reversal of the decision of the District Court on that point, and declare the law void; particularly, too, when we know that all the errors committed hy those 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, wo shall presently see.

It is true,that had the referees made “report of what they allowed of plaintiff’s claim, or disallowed; or what they allowed or disallowed of the claim of offset 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 move 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 the facts alone, we do not see that there was error in tho report which reported to the court the testimony as well as the sum ascertained by them to be duo 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 tho court, and any sum be thereby found for the plaintiff, judgment shall be entered for the same with costs,” &c.

Wo 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. NELSON R. NORTON, vs. JOSEPH ROOKER. 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, granory and barn, previous to the time of payment of the note. The time fordoing the work and making payment of the note was afterwards, by agreement of the partios, extended.

With defendant’s plea of general issue, he gave notice that he would oiler in evidence that the note was given without any consideration; that he claimed as a set-oif a largo sum of money, to wit: the sum of one thousand dollars, for plaintiff’s failing 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 bouse 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, 0100; damages for not finishing wood-house according to contract, $100; for failing to stone up my collar, 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 ¡natter ¡s part of the consideration of the note, and for which it was brought into existence, we think that it was sufficient to notify the plaintiifof the defence intended to be setup by defendant. This notice, though not required to be, in the strict technical form, a plea, (8 John. Eep. 455,) must, nevertheless, contain all the facts necessary to bo stated in a special plea; 13 John. Rep. 475; 10 John.Rep. 142; and 8 Wendell, 580. It must also state truly the facts intended to be given in evidence, 14 John. Eep. 89.

Where 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 lion on the land, and which the defendant was obliged to pay, and did pay, in order to prevent a sale of tbe premises, without specifying any particular judgment, Chancellor Kent, in 20 John.

Itep. 740, soys, it would bo unreasonable and unjust, that tho plaintiff at the trial should shut out the defence under the pretence 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 execution thereon, and provo the payment of them.

On the same prin-cipio, in this case, tho note in question, and the matters in de-fence, relate to the same transaction between the parties, and the plaintiff must have known it sufficiently without its being formally stated in tho notice.

Tho 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 tho question now to be considered. On this point, there aro conflicting opinions, but under the more recent and present practice of tho courts, with a view to prevent circuity of action, it is generally allowed.

In the Supreme Court of tho United States, it is decided in some cases not to be a defence, which arc collected in a note in 2 Peter’s Cond. Rep. 218; but on examination, these decisions were, probably, mostly made on the general issue. In 2 Wheaton’s Rep, 13, it is decided by the court not to be a defence under the general issue. So this court decides. To give evidence of a partial failure of consideration, a notice must accompany the plea of general issue. 6 Binney, 198. 1 Sergt. &, Rawlo, 477. 8 Sergt. & Rawle, 178. 8 Cowen, 31. 2 Wendell, 431. 12 Wendell, 246. 3 Wendell, 236. 4 Wendell, 483.

Graham’s Practice, 231, 232. 7 Cowen, 322. 3 M’Cord, 169. 1 Cowen’s Treatise, 174. Bailey on Bills, Boston Ed. of 1826, p. 340, in notes. 3 Kent’s Com. 78, 79, 80. It is true, that unliquidated damages cannot be off-set, 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: yet this is mere matter of form, and not of substance, and does not vitiate the notice, and particularly does it not vitiate in this form of action, which is in its nature equitable.

The third error assigned, that the defendant having once promised to pay tho note in tho hands of an assignee, was ever after barred from setting up a want or 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 but that tho plaintiff was the actual and legal owner of the note at tint 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, in this branch of the case, constrained to affirm tho judgment of the District Court, with costs. H. B. Towslkb and Moses M. Stroxg, for Rooker. Marshall M. Strong and H. 1N[. Wells, for Norton.