| Wis. | Jan 15, 1866
The circuit court, on the motion of the plaintiff, ordered that it be referred to three referees to hear and determine the whole issue in this cause, and that they should state the facts found by them and their conclusions of law separately, and report their findings together with the evidence to the court. It is contended by the appellants (defendants’ below), that this order violates their right of trial by jury. The order was made pursuant to the provisions of chapter 288, Laws of 1864, which provides for a compulsory reference where the trial of an issue of fact will require the examination of a long account. If this chapter is not in conflict with the constitution of the state, which declares that “ the right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy,” the order is not erroneous. At the time of the separation of this country fi-om England, courts of equity exercised concurrent jurisdiction with courts of law in matters of account; and in suits involving long and intricate accounts, the master took and stated the account, being armed with the fullest powers to examine witnesses and the parties on oath, and made his report, and the court rendered a decree without a trial by jury. In cases at law requiring the1 examination of such accounts, auditors took and stated the account; but issues of fact as to particular items might be formed before them,- and they reported these issues to the court, and they were tried by a jury, after which the accounts were settled by the auditors. The delays in courts of law were such, and the remedy in equity so much more perfect, that soon after equity assumed jurisdiction in actions involving such accounts, the remedy at law, though it still remained, was practically nearly superseded. See Story’s Eq. Jur., §§ 441 to 459. This practice, with slight modifications, has been continued in this country. There are very few if any of the states of the Union, where long accounts are not investigated, and judgment rendered on them, without the intervention of a juj ry, either by a reference to a master in suits in equity, or to-
In Wisconsin a compulsory reference was provided for in actions at law requiring the examination of such accounts, as early as 1889. Stat. 1839, p. 209, § 84. This law was declared valid by the supreme court of the territory. Rooker v. Norton, Burnett’s Rep., 41. When our state constitution was adopted, it did not take away this right of reference, but only provided that the right of trial by jury should remain as it was before, except that it extended it to cases where the amount in controversy was under twenty dollars, which, according to the provisions of the constitution of the United States, could be tried without a jiuy. Ross v. Irving, 14 Ill, 171; Mead v. Walker, 17 Wis., 190.
It clearly appears that the trial of the issue in this action will involve the examination of a long account; and although the action is on a penal bond, and provision is made (R. S., ch. 140, sec. 19) for ascertaining by the verdict of a jury that the penalty is forfeited and the amount due; still we hold that the act of 1864, authorizing a compulsory reference, so far alters or modifies the former act as to warrant a reference in such cases if the circuit court shall so order.
The counsel for the defendants insist that the main issue to be tried is the release and discharge of the defendants, and that it is an outrage to deprive them of the privilege of submitting that defense to a jury. There would be force in what they say, if the release was their only defense. But to try the issues made, it is obvious that the plaintiff must, to make out a prima facie case, investigate and prove nearly the entire account of the plaintiff with the defendant Dunning as county treasurer for his whole term of office. We cannot, therefore, say that the circuit court erred.
A motion, for a rehearing was denied at tbe January term, 1866.