23 Conn. 112 | Conn. | 1854
The objection, that this case was improperly sent to an auditor, cannot, we think, be sustained. The claim is, that the parties, by an agreement of their own, created a tribunal to try their cause, which the law does not recognize, and whose proceedings cannot lay the foundation for any judgment of the court.
The principle, supposed to be involved in this objection, is undoubtedly correct, and in its general application, of unquestionable importance. For no one pretends, that parties, of themselves, can create courts of justice, or judges,
By the law of 1850, auditors' can be appointed, in actions of assumpsit, if the cause of action embraces matter of account. This declaration, certainly, may embrace such matter; for, it contains all the common counts, and the defendant is actually found liable for the hay of the plaintiff, which he took away, and subsequently used. Of course, in the preliminary stage of the trial, acting upon the record, as it stood, the court had full power to appoint an auditor. The court could not know, without a bill of particulars, what accounts, or charges, or claims, would be presented before the auditor. Besides, the parties agreed to the course pursued, and we cannot now hold, that the court wrongfully assumed jurisdiction, in reference to this matter.
Moreover, as the contrary did not appear, and the parties, in open court, agreed, that it was a proper case to go to auditors, the court might well proceed upon that assumption, and the parties ought to be estopped from raising such an objection, after the result of a trial. Their agreement was made, on purpose to facilitate the trial over which the court had jurisdiction, and why should not the parties abide by it ? The case is not unlike one of frequent occurrence in our courts, where the parties are held to waive an objection to the judge, commissioner, juror, or the panel of jurors, by the course pursued. Eleven jurors do not constitute a full panel, but they may be treated as a full panel, by the agreement of the parties. So, informal testimony may be
The plaintiff' contends, that he was no party to the supposed unfairness or fraud practiced by Williams, his tenant, and so, cannot be affected by it. In the opinion of the court, the plaintiff was a participator in the whole trans
We think, also, that the partial failure of consideration of the note, can be set up in the defence. A.t this day, a cross action to obtain relief, in such a case as this, is not believed to be necessary,—the rule is much more liberal now, than it was formerly. It is our opinion, then, that the plaintiff was entitled to recover; but only for the amount of the hay which the defendant took away, and afterwards used. Beyond this, upon the evidence, we think the party not entitled to recover; for we hold, as to the rest, that the consideration failed. There is manifest error.
In this opinion the other judges concurred, except Church, C. J., who was disqualified.
Judgment reversed.