text:
    THE UNITED STATES, ex relationi THOMAS J. NOYES, vs. ALLEN W. HATCH,

      \ ( Moiimfor Maniam^ )
    The act of Congress donating land to the Territory to aid in the con-, struotion of the Milwaukee and Rock River Canal, authorizes the Legislature to elect or appoint the persons to manage and dispose of the land.
    The Register and other officers appointed for the disposal of said lands are not civil officers within .the meaning of the constitution or the organic law, and the legislature has the right to appoint them directly by naming them in the law, or to elect them under an existing law providing for that mode of filling those offices; and the exercise of this power does not conflict with the right of the Executive to appoint all civil officers,
    The term civil officers, according to the meaning of the organic law and the constitution, embraces only those officers in whom a portion of tho sovereignty or municipal regulations, or the general interests of society are vested, and does not mean such officers as canal commissioners.
    This was a motion for a mandamus. Both the relator and the respondent claim to be Register of the Board of Commissioners of the Milwaukee and Rock River Canal Company, and the case was brought before this Court to test the right to the office. The affidavit of the relator stateá, that on the 22d day of February, 1842, he was appointed by the Governor, Register of the Board of Commissioners of the Milwaukee and Rock River Canal Company, and commissioned until the end of the next session of the legislature: That on the 13th of March he took the oath and gave the bond required by law, which bond was accepted and approved by the Governor, and immediately entered upon the duties of his office, which he has continued to discharge ever since: And that the respondent has in his possession, the books, documents, charts and papers pertaining to the said office, and refuses to deliver them to the relator, although demanded of him, and evidence of the appointment and qualification of the relator had been exhibited to him.
    By agreement of the parties, a rule to show cause was considered as having been entered, and the case was submitted upon an application for a peremptory mandamus.
    The respondent showed for cause, that on the 18th day of February, 1842, he was duly elected to the said office, on joint ballot of both houses of the legislative assembly; that he has duly taken and subscribed the oath of office required by law, and executed the requisite bond, which was approved by the District Attorney for the county, and presented the same to the Governor for his acceptance and approval, who refused to approve and accept said bond, on the ground, as alledged, that the respondent was not lawfully in office. The respondent insists; that having been duly elected to said office according to the provisions of the existing law, and having done all in his power to qualify himself legally, he has a right to retain the possession of said books, documents, charts and papers; that the relator has not been appointed to said office according to law, and that the application before the court should be denied.
    Stow for relator:
    The office of Register of the Board of Commissioners of the Canal Company, being created by law, can only be filled by appointment of the Governor, according to the provisions of the law organizing the Territory. The act of the legislature of 2Gth.Feb-ruary,1839, creating the office, was in accordance with this principle, and provided that the office should be filled by executive appointment. The act of 11th January, 1840, providing for tho election of the canal officers by joint ballot of both houses of the legislature, conflicts with the organic law and must be regarded as nugatory. These are civil officers, or they are not officers at all. Blackstone defines an officer to be a person clothed with authority to exercise a public employment and receive the fees and emoluments therefor. These canal commissioners exercise a public employment to which emoluments are attached by law, which the incumbents have a right to receive; they are therefore strictly within the definition of the term, and as their duties are purely of a civil nature, they must be civil officers, who, the organic law says, shall be appointed by the Governor.
    The validity of the act of 1840, under which the respondent claims the office, involves a question of much greater importance than the mere contest between individuals. The power of legislation is limited to rightful subjects. No subject is a rightful subject of legislation, which conflicts with the Constitution of the United States, the laws of Congress, or the ordinance of 1787. It is conceived that the act of the Legislative Assembly of 1840, conflicts with the provisions of the organic law in prescribing the mode of filling these offices, and that therefore the subject is not a rightful subject of legislation: If so, the act will be declared void. The office, however, exists under the former law, and will remain. The relator-has been appointed to this office in the manner pointed out in the act of Congress, and is lawfully entitled to the books and papers belonging to it.
    Whiton for respondent:
    We contend that the canal commissioners are not officers within the meanin'g of the organic law. We will examine the question.
    1st. Are they such officers? Certainly they are officers of some kind, but not such officers as were contemplated by the law. That law did not intend to include every peson exercising any kind of public employment, such as road commissioners, bank or canal commissioners. Persons required by law to do some specific acts, are not officers within the meaning of the act of Congress.
    2d. Admitting these persons to be officers within the meaning of the organic law, the right of the executive to appoint them is superseded by the act of Congress donating the canal lands: (See acts of Congress of 1838, page 76, sec 1,2.) Here is a donation of lands for a specific purpose, and their entire control is vested in the legislature of the Territory, or such person as the legislature may appoint. The canal commissioners are merely the agents of the Territory to effect the acts of Congress and of the legislature in relation to these lands. If the Governor has the right to appoint them, he has the power to remove them, and thus he might take from the legislature the control of the canal lands which was given to it by Congress.
    3d. The power of the legislature, when exercised upon a rightful subject, can only be questioned by Congress, and that body must disapprove the act before its validity can be called in question.
    Ahnold, in continuation:
    This is a case of first impressions. There is no precedent or authority to control the court in its decision. The question will therefore be decided upon a sound construction of the law and the reason of the law. To arrive at a correct conclusion, it is not necessary to show that the respondent was lawfully in office. The relator must show, affirmatively, that he is the lawful incumbent, and if he fails to do this he must fail in his application.

      By the act of Congress donating the canal lands, the Territory is made a trustee for the purposes of the act, and the canal officers are only the agents of the Territory to fulfil that trust.
    Admitting that the canal officers are civil officers within the meaning of the organic law, still, by a subsequent act of Congress of equal validity, the appointment of these officers is given, according to the fairest construction, to the legislature. It will be seen upon examination, that there is a material difference in the wording of the organic law and the act donating the canal lands. By the organic law the Governor is made a constituent part of the legislative assembly. The word “ legislature” does not occur in that act, but the words, “ legislative assembly,” which means the Governor, Council, and House of Representatives, is alone used. In the latter act, the word “ legislature” is only used; and the control of the canal lands is given to the legislature, to be disposed of by that body or by such persons as it shall appoint for that purpose. It seems clear that the Governor has nothing to do with filling these offices, unless the legislature gives him the authority.
    Wells, in conclusion:
    There is in reality but one question involved in the case. Are the canal commissioners civil officers? If they are, the motion must be sustained. If we consider the nature of their employment, their duties and emoluments, and compare them with all legal definitions of the term “ officer,” the question must be decided affirmatively. The law organizing the Territory clearly vests the power of appointment in the Governor, and as the law stands he can only be divested of the power by implication.
   Judge Miller

delivered the opinion of the court:

This is an application for a mandamus, to compel the respondent to deliver over to the relator, the books, records and papers, in, and pertaining to, the office of Register of the Board of Canal Commissioners of the Milwaukee and Rock River Canal. It is in reality a contest between the Governor and Legislature of the Territory respecting the power of appointing the said commissioners; and it has received from the court the deliberation and research demanded by the dignity of the parties and the great importance of the question.

By an act of Congress, approved June 18th, 1838, entitled an act to grant a quantity of land to the Territory of Wisconsin, for the purpose of aiding in opening a canal to connect the waters of Lake Michigan with those of Rock River,” there was granted to the Territory for the said purpose, the odd sections along the course of the canal, and to be subject to the disposal of the legislature of the said Territory for the purpose aforesaid, and no other. The said act further provides, that the Commissioner of the General Land Office shall ascertain, under the direction of the President of the United States, the particular lands granted to the Territory, and shall cause duplicate lists of the same to be prepared from the plats on file in his office, one of which he shall transmit to the Governor of said Territory, who, or such other person or persons as shall be appointed for the purpose under the authority of the legislature of the Territory, or of the State which may be erected out of the same, after the admission of such State, shall have power to sell or convey, the whole, or any part of said lands, at a price not less than two dollars and fifty cents per acre, and to give a title in fee simple therefor to whomsoever shall purchase the whole or any part thereof.

In pursuance of this act of Congress, the legislative assembly of the Territory, on the twenty-sixth day of February, 1839, passed an act to provide for aiding in the construction of the Milwaukee and Rock River Canal; the second section of which provided for the appointment, by the Governor, by and with the advice and consent of the Council, of three Commissioners, to be styled the-Board of Canal Commissioners, one of whom to be designated as the Acting Commissioner, one as Register, and one as Receiver, and to hold their offices for the term of one year, subject, however, to be removed at the pleasure of the Governor. They were also to give bond with security, for the faithful discharge of the duties of their office. They were also authorized to administer oaths and examine witnesses, touching any applications for the registry of lands under the provisions of said act. They were also empowered in said act, to make sale of the said lands, so as aforesaid granted to the Territory.

By an act of the legislative assembly, approved on the eleventh day of January, 1840, it is provided, that the canal commissioners shall be elected annually, on joint ballot of the Council and House of Representatives of the Territory, and shall hold their offices for the term of one year, and until others are elected in their places. This act, in this particular, superseded the act of the twenty-sixth day of February; 1839.

It is provided in an act of Congress, entitled “ an act establishing the Territorial Government of Wisconsin,” approved 20th April, 1838, that the legislative power of the Territory shall be vested in a Governor and a Legislative Assembly; and further, that the Governor shall nominate, and by and with the advice and consent of the legislative Council, appoint, all judicial officers, justices of the peace, sheriffs, all militia officers, except those of the staff, and all civil officers not otherwise provided for.

Under this provision of the organic law, the relator was appointed by the Governor, Register of said board on the 22d day of February, 1842, during the recess of the Council. The respondent was elected by the Legislative Assembly, on joint ballot, on the 18th day of the same month, to the same office, in pursuance of the act of January, 1840. They both claim to exercise and hold the same office under their respective appointments, and the question for the determination of the court is, which appointment is legal.

The above mentioned act of Congress, making the said grant of land, was passed more than two years after the date of the organic law of the Territory; and they are both of equal power, force and effect, in relation to their respective objects, and are on an equality as laws enacted by Congress. The organic law is binding upon the legislation of the Territory, as the Constitution of a State is upon the action of its legislature; but it is a mere act of Congress, subject to its amendment, modification or repeal. Under the Constitution, it was competent for Congress to legislate directly for the Territory; but as this would be inconvenient, and probably not consistent with the immediate or local wants or interests of the people, the Territorial Government was created by the organic law, wherein the Governor and Legislative Assembly are authorized to discharge their respective duties therein referred to, for the interest and protection of the people. Congress passed the act of Juno, 1838, with a full knowledge of the organic law, and of the power given therein to the Governor to make appointments. This isa law of a peculiar charactcrjfor a specific purpose — a mere grant for a certain purpose not connected with the government of the Territory, or with the respective functions of the Governor and Legislature, as directed '.'and authorized in the organic law. The lands granted by this act, were made subject to the disposal of the legislature, for the purpose mentioned in the grant; and by authority of the legislature, the Governor himself, or some other person or persons, are to be appointed to make sales of these lands. In order to carry into full effect the object and intentions of this grant, it was competent and proper for the legislature, or legislative assembly, to pass an act, authorizing and appointing the Governor to act as the commissioner, or to authorize the Governor to appoint the commissioner, or to appoint the commissioner with the advice and consent of the Council, as was done in 1839, or for the election of a commissioner or commissioners on joint ballot — and such law, whatever if may be, is the proper rule of action until repealed.

This is an application to the court, to declare void the act of January 1840, under which the respondent was appointed, on the ground that it conflicts with the organic law. It would be the right and duty of the court to do so in a clear and manifest case; 12 Sergt. & Rawlc, 330; 3 Sergt. & Rawlc, 169; 4 Wheaton’s Reports. But this, in the opinion of the court, is very far from being such a case. The propriety of the act of January, 1840, in this particular, and of the election or appointment of the respondent in pursuance of it, is beyond all question or doubt.

The power of the Governor to appoint the relator, remains to be .considered. This power is claimed for the Governor by yir-tue of the seventh section of the organic law; in which he is authorized to nominate, and by and with the advice and consent of the Council, to appoint all civil officers, not therein provided for. Laying aside the position that this office of canal commissioner was not contemplated by Congress at the enactment of the organic law, it may be inferred that the term, civil officers,was intended to embrace such officers as in whom part of the sovereignty or municipal regulations, or general interests of society are vested; and that such has been the general understanding in the states, under their constitutions, is known to citizens of experience and observation. But this question is not without authority of a very respectable character. On page 244, of 17 Sergt. & Rawle, will be found, quoted from 3 Greenleaf’s Reports, 482, which is not in the library, as follows: — In 1822, the supreme judicial court of the State of Maine, consisting of Mellen, chief justice, and Pre-ble and Weston, justices, in an opinion given to the Governor of that State, say — that the terms office and officers, are used in the Constitution of Maine, where it prescribes an oath of office to all legislative, executive, and judicia officers, imply a delegation of a portion of tho sovereign power to, and possession of it, by the person filling the office, and that a person clothed with a resolve of tho legislature, with no other powers than those of superintending the public lands, and performing certain a.cts relating to them, under the discretionary regulation of tho Governor, was not an officer, and therefore was not required to take the oath.

By section 8 of articles, of the Constitution of Pennsylvania, adopted in 1790, the Governor is authorized to appoint all officers whose offices are established by the Constitution, or shall he established by law, and whose appointments are not therein otherwise provided for.

In the case of tho Commonwealth ex relationi Dr. George F. Lehman vs. Dr. Joel B. Sutherland, 5 Sergt. & Rawle, 145; which was a rule to show cause why leave should not be granted, to file an information in nature of a quo warranto, against Joel B. Sutherland, to inquire by what authority ho exercised the office of Lazaretto physician; Chief Justice Tilghman uses tho following language: — The word, office, is of very vague and indefinite import. Every thing concerning the administration of justice, or tho general interests of society, may be supposed to be within tho meaning of the Constitution, especially if fees and emoluments are annexed to the office. But there are matters of temporary and local concern, which, although comprehended in the term office, have not been thought to be embraced by tho Constitution. And when offices of that kind have been created, the legislature have sometimes made tho appointment in the law which created them; sometimes given the appointment to others than the Governor; and sometimes given the power of removal to others, although'the appointment was left with the Governor. The officers of whom I am speaking, (says tho Chief Justice,) are often described in acts of Assembly by the name of commissioners. Such, for'instance, as ono employed in the laying out of roads and canals and other works of a public nature. Yet all these perform a duly, or in other words, exercise an office. So, likewise, officers within tho limits of a corporation are, generally, appointed by the corporation, unless they concern tho administration of justice. And in order to discover in what light this office of physician to the board of health has been viewed, the chief justice traced the health laws from their origin, and satisfied himself that it has been considered, and justly considered, as an office under the control of the legislature, and subject to their modifications as to appointment, duration, and removal. Judge Duncan, in his opinion in the same case, on page 154, says: that the power of appointment to a new office, without commission from the Governor, in the law creating the office, has freqcntly been exercised; as the commissioners appointed by the act of April, 1794, to settle the compensation of Pennsylvania claimants for lands within the seventeen townships of Luzerne county. The commissioners are named and appointed by the act, without any intervention of the Governor, except in his legislative capacity of approving the act. These commissioners were in the nature of judicial officers, exercising important and discretionary powers and judicial functions; and although the constitutionality of many portions of that act has been called in question, yet this has never formed an objection. The enumeration of such appointments would be useless. It would be too much now, to pronounce that all this was usurpation on the constitutional rights of the Governor, forbidden by the Constitution, and void. In most cases of local appointments, they are made by the people, or by certain bodies of men authorized by the law creating the office. This act and appointment bear date but four years after the adoption of the Constitution of the State. In the case of the Commonwealth vs. Douglass, 1 Binncy, 77, as early as the year 1803, it appears that Douglass had been appointed an inspector of the prison of Philadelphia in pursuance of law. The propriety or legality of the election was disputed, but not the constitutionality of the law under which it was made. Chief Justice Tilghman, in the case of The Commonwealth ex relationi Reynolds vs. Bussier, 3 Sergt. & Rawle, 457, says: it is understood, that in what I have said, I do not mean to include certain officers, (so called, when that word is taken in its largest sense,) of a local, limited, or corporate nature, which have not been supposed to be comprehended in the Governor’s power of appointment. By the Constitution of Pennsylvania, art. 5, sec. 2, it is declared, that the judges of the supreme court, and the presidents of the several courts of common pleas, shall not hold any other office of profit under the Commonwealth. Thomas Cooper, while acting as a commissioner to settle the compensation to claimants to lands in Luzerne county, above referred to, was appointed a president judge-; and his acts as such commis-sioncr, after he qualified as such judge, were objected to in the case of Shepherd vs. The Commonwealth, 1 Sergt. & Rawle, 1. It was there decided, that the office of commissioner, which Judge Duncan, in the case above referred to, said was in the nature of a judicial office, exercising important and discretionary powers and judicial functions, was not an office within the meaning of the Constitution.

By the same Constitution, art. 1, sec. 18, no person holding any office under the United States, or that Commonwealth, shall be a member of either house of the Legislature during his continuance in office. Charles Biddle, a member of the Senate of Pennsylvania, was appointed by the President of the United States, to act as a commissioner to sign bills or notes, called treasury notes, issued under the authority of the act of Congress, for which he received a compensation. The question was brought before the Senate, who decided that his seat was not thereby vacated; 1 Sergt. & Rawle, 10. The same Constitution declares the holding of offices or appointments under the State, incompatible with holding or exercising offices or appointments under the United States. Under this provision, together with the laws passed in addition thereto, the Supreme Court of that State decided by a majority, in the case of The Commonwealth vs. John Binns, 17 Sergt. & Rawle, 219, that the selection of an editor of a newspa-paper to print the laws of the United States, by the Secretary of State of the United States, in not conferring an office or appointment under the United States, incompatible with the office of Alderman of the City of Philadelphia,

The different acts of the Legislature of Pennsylvania respecting the internal improvement system of that Slate, from 1825 to 1829, authorized the Governor to appoint the Canal Commissioners; but by the act passed in 1829, the power of the Govern- or to appoint them was revoked, and they were appointed, in pursuance of law, by the legislature. Although the board of commissioners was clothed with immense powers in the disbursement of money, and extensive patronage, it is not, after a diligent research, to be found in the books of reports, that the Governors rights or prerogative, under the Constitution, which authorized him to appoint all officers, which officers are established by that Constitution, or shall be established by law, were questioned, or that the constitutionality of the law under which the legislature made the appointment, was brought to the attention of the courts. It is true, that this power was afterwards restored to the Governor by subsequent acts of the legislature, but the precedent remains.

Stow & Weels, for relator.

Wiixton & Aknold, for respondent.

It would be too tedious to refer particularly to all the cases that have been decided in that Stale, by the people, the legislature, and the courts, giving a construction to the term office, as understood in the Constitution. Many cases, cited by the judges in their opinions, in the causes above stated, and not mentioned here, are referred to.

The Legislative Assembly of this Territory seems to have put the same construction on the term, office, in the organic law, at its first session after the organization of the Territory. By an act approved on the 3d December, 1836, three commissioners were to be elected by joint ballot of the Council and House of Representatives, whose duty was to cause the necessary public buildings to be erected at Madison, for the accommodation of the Assembly and other officers of tho territorial government. The treasurer of said board, to be elected under said law, was also to. give bond with security for the faithful discharge of his office. Under this law commissioners were elected and qualified, as appears by the public records. This is called an office, so is the commissioner under consideration; so are those generally in the cases referred to; but it appears that'they are not such officers as are contemplated by the Constitutions referred to, or our organic law.

Motion for mandamus overruled.


source: Caselaw Access Project

author: Judge Irvin

license: Public Domain

text:
    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,

      Errof to Racine county.

    Tiie Court will not decide an act of the Legislature to he unconstitutional, unless the caséis clear and manifest.
    The statute of Wisconsin, authoring the district courts to refer certain cases to referees, is not unconstitutional; and the district court may refer such a case against the will of either party, and such a reference does not ■violate the right of trial by jury secured by the constitution.
    The object of the constitution was to secure to every one a trial by Iris peers, and this right is as well secured in the hands of sworn referees as a common law jury.
    A report of referees which reports a sum certain found to be due and the testimony upon which the decision is based, is sufficiently certain, although it does not state the facts which they find, or show what particular claims have been allowed or disallowed.
    Partial failure of the consideration of a note, may be given in evidence on the trial, where notice has been given of the defence intended to be set up, but it cannot be given in evidence under the general issue without notice.
    A notice of special matter tobe given in evidence under the general.issue, need not be as formal as a special plea: if it contains matter, which, if embodied in a formal plea, would be decided on general demurrer to be a bar to the action, and is set out so certain that the plaintiff is apprised of the fact and not taken by surprise, it is sufficient.
    Although unliquidated damages cannot bo set off against a certain demand, yet where the damages arise from a breach of the plaintiff’s contract which formed a part of the consideration of the note sued on, they may be given in evidence under a notice, for the purpose of reducing the plaintiff’s damages.
    Where referees report a sum cértain to be due to the plaintiff, and also make a conditional report, stating that they find a sum certain to be due from the plaintiff to the defendant which in their opinion cannot, according to law, be allowed in the same action, but that if their opinion of the law is erroneous, then the sum found to be due to the defendant is to be deducted from the amount found in favor of the plaintiff, the Court may, if the matters found in favor of the defendant can he legally taken into consideration, confirm both reports and enter judgment for the balance in favor of the plaintiff.
    A promise by the defendant to paya promissory note, not negotiable, to an assignee, although made unconditional, does not preclude the defendant from setting up a failure of consideration in a suit subsequently brought by the payee when there is nothing to show that the suit is for the benefit of a third person.
    These were cross writs of error brought to reverse a judgment of the Racine District Court.
    Norton brought an action of assumpsit against Rooker in the court below, upon a promissory note for ‡464, dated at Chicago, 21st July, 1838, payable one year after date, in boots and shoes to be delivered at Foxville, in Racine county. The declaration also contained the common money counts accompanied with a copy of the note and a bill of particulars. Rooker pleaded the general issue, and gave notice of special matter to be given in evidence, to wit: that the note sued on was given without consideration, and was obtained by fraud, and deceitful misrepresentations of the plaintiff; set off with a bill of particulars, in which he claimed $1000: for Norton’s failing to fulfil a verbal contract to finish certain buildings on Rooker’s farm, and dig and wall a collar under his house.
    The District Court ordered the case to be referred to three referees, to which order of reference Rooker objected.
    The referees reported to the court, that there was due from Rooker to Norton the sum of $360, besides costs. They also reported, by way of supplement, that there was due from Norton to Rooker—
    For damages for not digging and completing cellar according to contract, $200 00
    For not finishing wood-shed and granery, 41 00
    For not finishing barn, and damage, 16 50
    Amounting in all to the sum of $257 50: that the allowance of these sums was objected to by Norton, on the ground that they were not proper subjects of set-off, which objection was sustained by the referees; but they say, that if they erred in that decision, then the sum of $257 50 is to be deducted from the sum found in favor of Norton, who is to recover the balance. The referees also reported the evidence taken before them.
    Rooker excepted to the report of the referees; the substanco of which exceptions is embodied in his assignment of errors.
    Tho District Court confirmed the report and supplement, and gave judgment in favor of Norton for the balance, after deducting the claim of Rooker for damages as found in the supplement of the referees. Both parties were dissatisfied with the decision of the court: Norton contending that he was entitled to bis whole claim as found by the referees without any deduction, and Rooker, that the whole judgment should be reversed, and each party has brought the case into this court to correct the errors of the court below.

      Rooker assigned the following errors in the proceedings of the District Court;
    1. The court erred in referring this cause to referees against the consent of the plaintiff in error, (defendant below,) the action being a common law action.
    2. The court erred in ruling that it was not necessary for the referees 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 report of what they had allowed of plaintiff’s claim, or disallowed, or what they had allowed or disallowed of the claim of sot off of the defendant below.
    4. The court erred in ruling that the referees decided properly in finding that misrepresentations, as proved, did not avoid the note in suit,
    5. The court errod in accepting the report of the referees, and entering judgment thereon.
    And Norton made the following assignment of errors on his part:
    The damages which the defendant sustained, as reported by the referees, ought not to have been deducted from the plaintiff’s demand for the following reasons:
    1. By the agreement of the parties, the payment of the note was a condition precedent to tho doing tho work for the not doing of which tho defendant complains that he has sustained damages.

      2. The defendant having once promised to pay tho note in the hands of an assignee, was ever after barred from setting upa want or failure of consideration.
    3. Partial failure of consideration cannot be set up in defence of a note.
    4. Unliquidated damages cannot be set off.
    5. There were fatal variances between the contract proven and the one pleaded.
    The causes were argued separately. In the case of Rooker vs. Norton, Towsiee for plaintiff in error contended:
    1. The order of the court below, referring tho cause to referees, against the will of Rooker, was erroneous. This is a common law action, and the value in controversy exceeds twenty dollars. The defendant below insisted upon a trial by jury. The right to this is secured to him by the constitution of the United States, and it is not competent for the legislature and the courts to substitute another mode of trial. See Art. 7, of the amendments to the constitution, 1 Aiken, 148.
    2. The report of the referees ought to have been set aside by the court below. The report ought to have stated the facts, and not the testimony at length. The report should be like a special verdict of a jury, to enable the court to apply the law to the facts, and not a mere report of evidence without any statement of facts established by it. 1 Aiken’s Rep. 148; id. 359. 1 Vermont Rep. 250; 3 do. 359; id. 389, Law Reporter, Vol. 1, No. 2. 5 American Digest, 52, 53.
    3. The report should have stated the accounts between the parties, and shown what had been allowed or disallowed of each. A report showing a gross sum to be due to either, without stating the facts upon which the decision is based, is erroneous. The referees should not reporta gross sum in the nature of a general verdict, for they are not the jury; they are only auditors or mere officers of the court, and cannot decide the cause, but only pic-pare the case for the judgment of the court. 1 Aiken’s Rep. 359. 3 Vermont Rep. 389; id. 597. Law Reporter, Vol, 1. No. 2. 4 Crancb, 307. 6 Crancb, 9 to29.
    4. Fraudulent representations, or the concealment of defects in the property sold, will avoid all contracts, and the defence may be made under the general issue. If it wás proven befere the referees that the note sued on was obtained by false and fraudulent representations, or that Norton concealed material defects in the property sold to Rooker, for which the note was given, or misrepresented its quality and value, the referees ought to have disallowed the whole of Norton’s claim. Com. on Contracts, 35, 66, 207,209. 12 East. 637. 2 Saund. Plead. &Ev. 907. 3 John. 280. Cowen & Hill’s Notes to Phil. Ev, part 2, page 1475. Sugden’s Vendors and Purchasers, 5.
    The proof in this case shows that Rooker wished to purchase a farm of a particular description, and possessing particular advantages; that Norton represented that he had one to sell of just such description, which he thereupon sold to Rooker, for which the note in suit was given in part,'and that these representations were false; Norton is therefore not entitled to recover.
    Marshall M. Strong, for deftt in error;
    The statute of the Territory authorizing the courts to refer cases, is perfectly constitutional. The meaning of the article in the constitutution that has been referred to is, that a man shall be tried by his poors, and not by persons permanently connected with the court, and the number is not material. Our statute is copied from the statute of New York, (see 2 Revised Statutes N. Y. 384,) which has been in force in that state since 1812, and its constitutionality has never been questioned there. Again,by the laws of New York, in cases b,efore a justice of the peace, where the judgment is under $25, no appeal can be taken. A justice’s jury consists of six persons. Thus cases where the amount of tho judgment is between $20 and $25, although they come under the constitutional provision relied upon here, are tried by ajury of six, a number unknown to the common law as composing a jury. This Jaw has also the sanction of long standing without its validity being questioned. Referees, under the statute, are sometimes called a legislative jury; they answer every purpose, and secure every right that could be effected by a common law jury-
    The report of the referees is not liable to the objection embraced in the second and third errors assigned. The form of the report is adopted precisely from Yates’ Pleading, p. 799. The practice that has been pursued in this case in relation to the reference, prevails in New York under a similar law. Yates’ Pleading, 339. Graham’s Practice, 576. 4 Wendell, 199. The cases that have been referred to by the plaintiff^ counsel, from Cranch, are where auditors were appointed in equity causes, and do not,apply to this case; and those in the VermontReportsarose under the peculiar provisions of the statute of that state, which is not analagous to ours.
    The fourth point assumed is not sustained by the evidence. The proof shows that Rookerspent several days at Norton’s house on the farm, and examined it for himself before he purchased; and in such case the rule of caveat emptor applies. But if the contract is void, it is void in tolo. Rooker cannot keep the farm and enjoy it for years and avoid paying for it.
    Moses M. Strong, in conclusion:
    One of the most important points in the case, is the one first suggested by the plaintiff in error. To decide upon the constitutionality of a law, is always a grave matter in the consideration of the court; but when an act of the legislature is shown plainly to conflict with the constitution, the court will not hesitate so to decide. The right of trial by jury, has always been considered one of the most valuable rights secured to American citizens. This right was not created or granted by the constitution; it existed before the constitution,'as the birth-right of every American, and the constitution only confirms and secures the right. If we give a common sense construction to the 7th article of the amendments, we must come to the conclusion that the act of the legislature authorizing the courts to substitute referees instead of a jury against the will of a party, violates its provisions. The referees have been called a legislative jury. It matters not by what name they are called, they are not the jury that the party had a right to, to try iris cause, when the constitution was adopted; they do not possess any of the attributes of a jury; the party has" not the benefit of a trial before the court and jury together, and the instructions of the court to the jury upon the law of the case.
    The objections to the report itself are based upon the supposition that the order of reference is legal. Admitting the order to have been legally made, still the report is bad, and ought not to have been confirmed by the court. The referees have reported testimony when they should have reported facts; they have left the court to ascertain the facts from the testimony, and the court became the judge of the facts as well as the law. If they come in place of a jury, and are to be considered as a jury for all legal purposes, they ought to have decided what facts were proven by the testimony.
    The case of Norton vs. Rooter coming up for argument, Marshall M. Stroks, for plaintiff in error, said:
    By the agreement of the parties, the payment of the note was a condition precedent to the performance of Norton’s contract. Until the note was paid, Rooter could not require performance from Norton. Chitty on Bills, 87. American Law Library, 33. At most, the agreements wore independent of each other, and were the subjects of separate actions, and not of set-off against each other.
    Partial failure of consideration cannot be sot up in defence in an action upon a promisory note. This is the universal rule of law in England, and wherever it has been departed from in the United States, it has been under particular statutory provisions: Meed vs. M'Állister, S Wendell, 109. Bailey on Bills, 534 to 544. Chitty on Bills, 8. 5 Cowen’s Rep. 494. 1 Littell’s Rep. 233. 5 do. 249. Harrison’s Digest, 524. Chitty on Bills, 88, 89.
    The express promise of Hooker to pay the note in the hands of an assignee, precluded him from afterwards setting in defence any want or failure of consideration. This promiso amounted to a legal admission of the sufficiency of the consideration, and ostop-ed him from the defence that has been made in the case. 2 Cow-en’s Treatise, 740. Bigelow’s Digest, 705.
    In the court below, the defence set up under Norton’s contract, was not in mitigation of damages, but was under a notice of set* off, claiming unliquidated damages. The principle that unliqui-dated damages cannot be setoff, is too wqll settled to need argument. 8 Wendell, 109. Stat. of Wisconsin, 278. Again, the notice of special matter is bad. The rule in New York to test the sufficiency of a notice of this kind, is to see if it would be good on general demurrer if it were embodied in the form of a special plea. 10 John. Rep. 140. If the notice in this case is tested by this rule, it cannot be sustained.
    The contract proven before the referees, was materially different from that slated in the notice. The defendant below ought to have been confined in his proof to the matters stated in his notice. 10 John. Rep. 140. Cowen’s Treatise, 557,558. 1 Cow-en’s Philips, 207, 209. 2 do. 509.
    Towsi.ee, for def’t in error:
    The decision of the court upon the questions now under consideration, was altogether proper under the circumstances of the case. The facts have not been correctly stated in argument. The proof shows that instoad of the payment of the note being a condition precedent to Norton’s performance, Norton was to perform his contract six months before the note became due, and that his performance was a condition precedent to the payment.
    Although asa general principle, unliquidated damages cannot be set-off, yet where the damages arise from the non-performance of a condition precedent in a contract that entered into the consideration of the defendant’s promise, they may be brought in and allowed.
    Under the revised statutes of New York, which the counsel for the plaintiff in error admits, in this respect, to be in affirmance of the common law, partial failure of consideration may be given in evidence upon the trial to reduce the plaintiff’s recovery. 1 Cow-en’s Treatise, 174. The defence in this case was not insisted upon on the trial as a set-off, but as a partial failure of consideration, and as such was properly allowed, 1 Cowen’s Treatise 174, 176. Cowen & Hill’s notes to Phil, Ev. 1475.
    The notice of special matter need not be as particular as a special plea. The notice in this case was understood by the plaintiff, and accepted as sufficient; no objection was made to it at the trial, and it is too late now to except to its sufficiency.
    Moses M. Strong, in continuation:
    All the objections taken by the plaintiff in error are based upon the supposition of a certain state of facts. The record only shows that the referees state that particular witnesses testified to certain facts. This is not showing to the court that the facts existed, nor did it authorize the district court to decide that they did exist,
    Wells, in conclusion:
    The case resolves itself into two points: 1st. can the defendant set up a partial failure of consideration in defence? and' 2d. can he avail himself of it by way of set-off? In this case the claim of the defendant was for unliquidated damages, which cannot bo set-off. The authority read from Cowen, is only the dictum of the . compiler, and that does not support the position assumed. The question is,'did the District Court err? or did the referees eir? The referees reported a sum certain in favor of the plaintiff; but if the law should allow the unliquidated damages to be set-off, then, according to their supplemental report, a certain sum should be deducted from the plaintiff’s demand. The court allowed the set-off, and we think it erred in doing so. It ought to have rendered judgment on the absolute report, and rejected the supplement and set-off. Lawrence vs. Niles, 10 John. Rep. 141.
   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.


author: Chief Justice Dunn

text:
      Ex parte JAMES G. KING.

      Error io Rock county.

    In proceedings under the statute for partition of real estate, the petitioner may bring a writ of error to reverse the judgment; and if the proceedings are erroneous, the judgment will be reversed, that the errors may be corrected.
    James G.,King filed his petition in the Rock District Court, praying for the partition of certain lands lying in Rock county. The commissioners appointed by the (jourt, made partition of lands which did not correspond with the petition, and some of which was not embraced in it; and tho division was not made according to law or the respective interests of the parties. The mistake was not discovered, either by tbe court or counsel, during the term, and tho report of the commissioners was confirmed and judgment entered accordingly. King, the petitioner, brought this writ of error to reverse the judgment, in order to have the proceedings perfected in the court below.
    WiiitOjNT, for King,
    briefly stated the case, and showed that the errors had arisen purely through mistake; that there was no opposition to the petition, and that it was for the benefit of all persons interested to reverse the judgment, that the District Court may be enabled to make partition of the premises described in the petition, according to law. ,
   Chief Justice Dunn

delivered the following opinion of the court ¡

In this case the petitioner, James G. King, filed his petition for the partition of certain real estate situate in the county of Rock, in the District Court of Rock county, at October term of said court, A. D. 1841. At said term commissioners were appointed to make partition of the land described in said petition. At the April term of said court, 1842, the said commissioners made their report to the said court, in which they gave the same quartet section of land to two persons entire, and not by moiety, and one quarter section to the petitioner which was not described in his petition. The District Court rendered judgment, that partition he made of the premises according to said report.

It is unnecessary to perplex this question with reasons, as it is obvious that the report was defective and erroneous, and consequently the judgment of the court thereon; which must have arisen from the usual hurry of business at the close of a protracted term of court, when the same strict and minute examination of lengthy reports is not made, as when there is more time and less press of business.

The judgment of the District Court is therefore reversed, and the case remanded to the said District Court for such further proceedings therein as may be legal and proper.

Whiton, for King.


author: Judge Xevin.

text:
    JOHN GARDNER & ISAAC Z. WHITAKER, plt'ffs in error, vs. The BOARD OF COMMISSIONERS of the county of GRANT, def'ts in error.

    l J Error to Grant county.
    As a general principle, after a court has adjourned for tho term, it has no power to amend or correct the record of tho term. If tho record is erroneous, it can only he corrected by writ of error.
    Tho statute of amendments does not extend to tho correction of errors in the judgment after the adjournment of tho term at which tho judgment was rendered.
    At the March term, 1840, of the Grant District Court, Gardner, one of the plaintiffs in error, was convicted of an assault with intent to kill, and was sentenced by tho court to pay a fmo and the costs of prosecution. By an arrangement with tho District Attorney, he, together with Whitaker, the other plaintiff in error, came into court and confessed judgment in favor of tho county commissioners, in an action of assumpsit, for the amount of the fine and costs, upon which judgment execution was stayed for a specified time by agreement of the parties. At the September term, 1841, of said District Court, the plaintiffs in error made a motion to amend the record of the judgment by confession, by inserting therein the consideration and reasons for the confession. The District Court overruled the motion, to which decision exceptions were taken, and the facts sought to be placed upon the record by the amendment asked for, were made a part of the bill of exceptions. This writ of error is brought to reverso the judgment by confession.
    The following assignment of errors was made in the record from the court below.
    “ 1. The court erred in overruling the motion to amend the record:

      2. The District Court erred in rendering the judgment which this writ of error is brought to reverse:

      First. Because the only consideration of the judgment was the compounding of a felony, for which there had been a conviction and sentence.

      Second. The judgment is not authorized by law.

      Third. The judgment is against good policy.

      Fourth. The judgment is without consideration and void.”
    Moses M. Strong, for plaintiffs in error:
    This case is not like any to be found in.tho books. It must depend upon the application which the court will make of the general principles of law to the facts. We contend that the District Court erred in permitting the record of the judgment of confession to bo made. If we are correct in this position, it will hardly be necessary to notice the other errors assigned, It is a well established principle of law; that all contracts and agreements! entered into for tho purpose of compounding a penal act, are against public policy, and void; 4 Black, Com. 133, 136; The People m. Bishop, 5 Wendell, 111. Gardner had been convicted of a felony, and had been sentenced by the court. The judgment by confession, although noVcompounding the felony, was similar in its principles and worse in its consequences; it was compounding the sentence of the court. The pardoning power is vested by law in the Govern-oralone. After sentence, he only can relieve tho convict. Neither the District Attorney, nor the County Commissioners, have any thing t.o do with the matter, and their attempting to relieve Mm from punishment by taking a security for the penalty, has no authority of law to sanction it. If a bond be given which is against the policy of tho law, it may bo avoided. A judgment confessed, as in this case, that is not only without any lawful consideration, but against policy, ought for the same reason to bo set aside.
    It will probably be insisted, that this court cannot look beyond the record of the judgment, or inquire into the facts upon which it was rendered. If such should be the opinion of the court, there is an end of tho case. But the facts are made a part of the record by the bill of exceptions, and I put the question to this court; if the case were now here as an original proceeding upon the same state of facts, would such a judgment be allowed to bo entered? If the court is not prepared to answer affirmatively, then the judgment must be reversed.
    Dunn, for def !ts in error:
    The judgment by confession estops the plaintiffs from alledging ought against it, or reversing it on error. The only remedy against such a judgment is by bill in chancery, showing fraud or mistake in procuring it; and these are tho only grounds upon which even equity can afford relief. When a judgment is confessed, there is an end of the matter so far as the courts of law aro concerned.
    Bujknett, for samo parties:
    If this court can go back behind the judgment, and inquire into the legality of the consideration, (a principle that is not admitted,) the record does not sustain the position that has been assumed. It does not appear that Gardner was committed until the fine and costs should be paid, as a part of his punishment. The District Attorney may have chosen to take a capias pro fine against him, and the court may have very properly awarded it. In many cases this would bo the better course for the public and the public officers, where a pecuniary fine is all the penalty inflicted, as in this case. Suppose him in custody under a capias for the sum imposed; any person may become his security for it upon time, if acceptable to the authorities entitled to receive it. By such an arrangement the fine itself becomes discharged, and that is a sufficient consideration for any undertaking by him and his securities to pay the money ata future day; and this is no compounding of felony. But the court cannot go into!’an examination of these matters. As has been correctly stated, by confessing judgment, the plaintiffs are estopped from alledging errors in the judgment; the confession amounts in law to a release of errors; and it would be without precedent or reason, to reverse a judgment because the consideration upon which it was rendered is not spread upon the record.

      We contend further; that the District Court had no power to amend the record at the time when the motion was made, and that to have done so would have been error. The motion was made at the third term after the confession of judgment. The record was then out of the power and control of the court, so far as the form and effects of .previous judgments are concerned. During the term, the record of all the proceedings of the term is entirely under the control of the court for amendments and corrections. For such purposes, the law considers the whole term as but of one day. But after the final adjournment, this power is atan end, and the court can never go back to previous terms and amend and alter the record of its judgments. There would be no stability in records if this were the case. The statute of amendments, broad as it is, docs not authorize the amendment sought by the motion.
   Opinion of the Court, by

Judge Xevin.

This cause came into this court on a bill of exceptions taken to the decision of the District Court of Grant county at the September term for 1841.

Upon an examination of the transcript of the record, it appears that at the March term of said court for 1S40, the said Gardner and Whitaker appeared in court, and entered a judgment by confession, in an action of assumpsit, in favor of said Board of Commissioners, for two hundred and thirty-two dollars and the costs of suit; and at the said September term of said court, they filed a motion, for reasons therein stated, to amend the record of said judgment by inserting therein the true consideration of the judgment, which motion was overruled, and exceptions thereto taken.

The only point that presents itself for consideration in this court is, did the court err in overruling the motion? It is a principle, too well established now to be questioned, that generally, aftet the adjournment of the court for the term, its record can never after-wards be touched by that court; and if error has found its way into the proceedings, it must be corrected by another and a higher court. To this general principle there are some few exceptions, and they are mostly of statutory provisions. One of the exceptions is, the proceeding by writ of error coram nobis. This is a proceeding which lies in the same court where the cause is tried; whereas the writ t.o correct errors in the judgment of that court, cannot be brought before the same court, but its object is to remove the cause to a higher court. For it would be absurd to appeal to the same court from an error of its own judgment. But as the writ of error coram nobis does not question the judgment of the court, but only alledges some defect in the execution of the process, or some clerical misprison or mistake, or some error in the proceedings arising from a fact not appearing on the face of them, (as when a judgment is rendered against a party after his death,) there is no absurdity in permitting it to be brought before the same court that tried the cause. Thus, if the court enters up ■a judgment as confirmed against the appearance bail, whereas in truth and in fact he had filed a recognizance of special bail, and had set the office judgment aside, which, however, the clerk omitted to enter in the record, this writ of error coram nobis, (sometimes called a writ of error in fact,) lies to correct the proceedure, and upon the fact appearing, the court proceeds to reverse the judment against the appearance bail'up to the point where the error was committed, and placing the cause in the state in which it would have been, had the fact been properly entered on the record, sends it back for further proceedings. 2 Wash. ISO; 2Rand. 174. The provisions of our statute of amendments do not extend to such a case as is made by the motion under consideration. Believing that the District Court had no authority to interfere with the judgment of a previous term, in the manner asked for by the motion, we affirm, with costs, the decision overruling the motion.

Moses M. Strong, for pl’tff in error.

Dunn and Burnett, for def’ts in error.


text:
    THOMAS AGAN & OWEN M'LAUGHLIN, pl'tffs in error, vs. The BOARD OF COMMISSIONERS of the county of GRANT, def'ts in error.

    “) \ Error to Grant county. | J

   This case embraced the same questions of law, and depended upon the same State of facts as the above case, in every particular, except the names of the plaintiffs. It was submitted upon the argument in the foregoing case. The decision of the court below was affirmed according to the aboye opinion, without any separate opinion being delivered in it.


author: Judge Miller.

text:
    DANIEL M. PARKISON, pl'ff in error, vs. RICHARD McKIM, def't in error,

    5 > Error to Iowa county. )

    When a party to a suit has been notified under the statute, to appear and be examined as a witness on the trial and appears according to the notice, and is willing to be sworn and examined, ho may be examined as a witness in the cause, whether the party who gave the notice wishes it or not, and although he may object to his being examined at the trial.
    In an action by. the indorsee against the indorser, where the plaintiff declares upon a negotiable promissory note in the common form, with the usual averments of presentation, non-payment and notice, a note under seal, indorsed by the payee to the plaintiff, does not support the declaration, and cannot bo read in evidence to the jury.
    A note under seal, although it may be made payable to order, is not negotiable, and the indorsee of such a note cannot maintain an action upon it in his own name, against either the maker or indorser.
    The indorsement of a note under seal is not a legal transfer of the instrument, nor does it make the indorser liable to the holder, or authorize him to insert any guarantee of payment over the indorser’s name; it is nothing more than an order or authority to the holder to receive the money from the maker.
    In actions between indorsee and indorser of negotiable promissory notes, the questions as to the sufficiency of the notice and what shall constitute due diligence, where the facts are ascertained, are questions of law, and ■cannot be submitted to the jury.
    McKim brought an action of assumpsit against Parkison in the Iowa District Court. The declaration contained the usual common counts, count on an account stated and a special count upon the following promissory note under seal, and the indorsement thereon:
    “On or before the first day of June next, I promise to pay D. M. Parkison or order, the sum of two hundred dollars, for value received. "Witness my hand and seal this 17th day of February, 1340. (Signed) JOSEPH CALDWELL, [Seal]”
    “Pay the within to Richard McKim,
    (Signed) D. M. PARKISON.”
    Upon the trial of the cause, the plaintiff below offered the note and indorsement in evidence to the jury, which was objected to by the defendant, but the court overruled the objection, and the note was read. It was proven that the note was presented to the maker at maturity and payment demanded, and that notice of nonpayment was given to Parkison the indorser, but the precise time of giving the notice could not be fixed; it was not, however, stated
      by any of the evidence, to have been given within less than four days after demand and refusal of payment. It also appeared in the evidence that Parkison lived within eight miles of Mineral Point where payment was demanded of the maker.
    Previous to the trial, Parkison had given notice under the statute, that he wished to have McKim sworn and examined as a witness. McKim attended under the notice and was willing to ho sworn, but at the trial the counsel for Parkison declined calling upon him. Ho then gave notice to Parldson’s counsel to have him (Parkison) sworn asa witness,and upon Parkison being called and not appearing, he insisted upon being sworn and examined himself, which the court allowed to be done, and to which the defendant’s counsel excepted.
    After the evidence, the defendant’s counsel requested the Court to instruct the jury: “That if the jury find that the maker of the note lived at Mineral Point at the time when the note became due, and that the indorser lived within eight miles of there, that a notice of non-payment given to the indorser four days or more after the non-payment would not be reasonable notice.”— The Court, declined giving the instruction in the form in which it was asked, but instructed the jury: “That in case of non-payment by the maker on the day of payment, the plaintiff could not recover unless he proved that he gave notice of the non-payment to the indorser as soon as, considering the situation of the parties, he reasonably could; but that the jury must be the judges from the circumstances of the case as proved, whether or not the notice was reasonable.”
    The jury returned a verdict in favor of the plaintiff for the amount of the note and interest, upon which the court rendered judgment.
    Parkison sued out a writ of error to reverse the judgment of the District Court, and assigned the following errors in the proceedings below:
    “1st. The court below erred in permitting the plaintiff below to be sworn as a witness.
    2d. The court erred in permitting the note to be read in support of the declaration.
    3d. The court erred in refusing to instruct the jury as requested by the counsel for the defendant below, and in giving the instructions which it did.”

      Moses M. Steong for pl’ff in error:
    The first error depends upon the sufficiency of the notice given to the defendant belotv to be sworn as a witness. The law only authorizes the parly giving the notice to be sworn himself, in caso the party notified fails to attend or refuses to be examined, and when the notice has been reasonable. In (his case, the defendant was not present at the trial, and the notice was given to his counsel during its progress. It will not be insisted by any one, that, as a general principle, this notice was sufficient. The notice previously given to the plaintiff, certainly did not authorize him to force himself as a witness in the cause against the will of the defendant.
    The second error brings us to the consideration of the note upon which the action is brought. It is an instrument under seal, and as such is not negotiable. The ordinary indorsement does not authorize the indorsee to maintain an action upon it in his own name, either against the maker or indorser. The action of assumpsit can only be maintained on simple contracts, and a sealed instrument cannot be introduced to support any declaration in that form of action.
    Upon the third assignment of errors, we contend, that if the court is asked to give a principle of law, applicable to the case, in charge to the jury, and refuses to do so, it is error. The court was asked to instruct the jury, that if a certain state of facts existed, the notice was not reasonable. This instruction the court refused to give; but on the contrary, charged the jury that they must judgo whether the notice was reasonable or not from the circumstances of the case. In both the refusal and the charge given, the court erred. The authorities upon the subject fully establish the principle, that when the facts are ascertained, whether the notice is reasonable or not, is a question of law for the court, and not one of fact for the jury. They also establish the point, that upon the facts in this case, the notice was not reasonable. Chitty on Bills, 509, 510, (notes and authorities there referred to.) Byles on Bills, 159. Law Library, no. 42. Tindell and others, vs. Brown, 1 T. R. 1G8. Darbyshire vs. Parker, 6 East. 3, note. Lenox vs. Roberts, 4 Peters’ Con. Rep. 164, and note. Bank of Columbia vs. Lawrence, 1 Peters, 581. Bush vs. Swan, 9 Peters, 45. Dickens vs. Bull, 10 Peters, 581.
    Dunn for def’t in error:

      As to the sufficiency of the notice to the indorser, and whether the question is one of law or of fact, the authorities are conflicting. The best guide which this court can have on that point, is its own decision in the case of Johnson vs. Wilson's admr., made at the July term, 1840. The more reasonable rule is, to judge of the sufficiency of the notice by the circumstances of each case.— Chitty on bills, 51 i; id. 518, note o.; Taylor vs. Breden, 8 John. Rep. 172.
    The objection which has been raised to the note sued on is not well founded. The note has no legal seal to it, and the indorsement has nothing purporting to be a seal. There are common counts in the declaration, and the finding of the jury may have been .under some of them, as there was evidence in support of them, and a positive promise to pay was proven.'
    Strong, in conclusion:
    The case of Johnson vs. Wilson's admr. is not of binding authority in this case, because there, there was evidence of in relation to agreement between the parties, which the court said must govern the case. The note read from Chitty on bills, 518, does not support the principle that has been contended for. The case of Taylor vs. Breden, in 8 John. Rep. cited by the counsel for the defendant, was brought on a judgment rendered in the State of Maryland, and the question of notice in that case was not decided by the court in New York.
    The legislature of this Territory has made any device used by way of a seal, a sufficient seal, (Slat. Wis. 156.) This effectually establishes the character of the instrument sued on. It is no answer to the argument to say, that there were common counts in the declaration, and that there was other evidence than the note before the jury. The note itself does not support any of the counts, and if the court below committed material error in its decision, the judgment must be reversed, and it matters not how many legal decisions were made, or how much legitimate testimony was given in the progress of the cause.
   Opinion of the Court, by

Judge Miller.

This was an action of assumpsit brought in the District Court for the county of Iowa, by defendant in error against plaintiff in error.

In the tenth section of the act entitled an act supplemental to the act concerning testimony and depositions,’ approved February '19th, 1841, it is provided, that in all actions, or proceedings at law in civil cases, either party may give notice to the adverse party, that he wishes to have said party sworn as a witness in such case; and if said adverse party shall not appear at the time of trial, or shall refuse to be sworn or to testify, or shall fail to take and produce his deposition as therein- after provided, then the party giving such notice, if the notice shall be deemed by the court sufficient, may himself be sworn as a witness in such cause. The defendant gave the plaintiff notice to appear in court at the trial of the cause, and testify. The plaintiff did so appear, and was willing to give evidence as a witness in the cause, when the counsel of defendant declined having him sworn. The plaintiff then gave notice to defendant’s counsel at the bar, and during the progress of the trial, that he desired to have him, the defendant, testify in the cause, when the defendant was called, and making no answer, the court admitted the plaintiff to be sworn and testify as a witness. This is the first error assigned..

This is a peculiar and novel statute, but the court must give to it its proper effect. The party is notified to appear to be sworn as a witness, and he must either be present and consent tobe sworn and testify as a witness, or produce his deposition; and in default thereof, the party giving the notice will be admitted as a witness. We are disposed to consider the notified party in the same light' as any other witness subpenaed in the cause. If a witness is subpenaed by one party and not'called, the other party can call him.- When a deposition is taken and filed, it becomes the property of both parties, and can be used by either party, on complying with the rules of the court. 8 Sergt. & Rawle, 580. If the party shall produce his deposition, taken and executed according to the provisions of the statute and the rules of court, it can be read on either side in evidence. If the party notified shall appear in court at the trial, in pursuance of notice, and is willing to give evidence as a witness, he may be sworn, whether the party who notified him calls him to the stand or not. It is not necessary for liim even to call upon the opposite party, as was done in this cas e. In this there was no error.

The plaintiff, as indorsee of a promissory negotiable note, declared against defendant as indorser. The declaration set forth a promissory note and the indorsement thereof to the plaintiff- by defendant, before due, with the usual averments of demand of payment and notice of non-payment. The paper offered in evi-dencc, was a note under seal; to the reading of which tho defendant’s counsel objected, which objection was overruled and the testimony admitted. In this the District Court committed an er» ror. It was not proper evidence in support of tho declaration. — • The variance between the note set forth in the declaration and the note offered in evidence, is very apparent.

The court charged tho jury, that in case of non-payment by the maker on the day of payment, the plaintiff could not recover, unless ho proved that he gave notice of the non-payment to the indorser, as soon as, considering the situation of the parties, he reasonably could, but that the jury must be judges, from the circumstances of the case, as proved, whether the notice was reasonable. In this charge, it is considered that the District Court erred.

This note, being a note under seal, was not negotiable; 2 Bin-ney, 154; 1 Dallas, 208. The seal stripped it of its negotiability, according to the principles of the law merchant; and consequently the indorsement by the defendant, did not vest in the plaintiff a legal right to sue in his own name. If, then, the plaintiff has no legal right by virtue of the indorsement, to sue the maker in his own name, by what right can he sue the indorser? The indorsement by defendant was not a legal transfer of the note; it was no assignment, but merely an order or authority to the plaintiff to receive the amount of it from the maker. It never can ho consistent with the intent of the parties, or wi(h the law, (hat every man who puts his name on a bond is to be considered as a new drawer of the bond; and if we stop short of that conclusion, the plaintiff cannot recover. The law is decided to be, that the mere indor-ser of a bond or a sealed instrument, is not liable in law to the in-dorsee; 1 Bay’s South Carolina Reports, 400; Folwell vs. Beaven, 13 Sergt. & Rawle, 311. Nor does such indorsement authorize the holder to insert any guarantee of payment over the indorser’s name. Nor will the indorser be liable on an allegation of a promise, unless it be clear and explicit, and clearly established by testimony.

In cases arising upon the indorsement of negotiable paper, the questions as to the sufficiency of the notice, and what shall constitute due diligence, when the facts are ascertained and determined, are of law, and cannot be submitted to the jury. On this point there is a conflict in the decisions, but the weight of authorify is in favor of the principle here stated. In England the rule is settled in this way. It is so settled by the Supreme Court of the United States, which is the rule of decision for this court.— Chitty on bills, 509, 510, 514, 515, 516; 1 T. R. 168; 6 East. 3; Bank of Columbia vs. Lawrence, 1 Peters, 581; Lenox vs. Roberts, 4 Peters’ Cond. Rep. 164; Bush vs. Swan, 9 Peters, 45; Dickens vs. Bull, 10 Peters, 581.

Moses M. STKONG,'for pl’tff in error.

F. J. Dujin, for def’t in error.

The case of Johnson vs. Wilson, decided at the term of 1840, of this court, was ruled, exclusively, on the agreement of the parties, on the subject of demand and notice.

Judgment reversed.