11 R.I. 103 | R.I. | 1877
Lead Opinion
This is an action of assumpsit upon book account and upon divers notes and checks. The action was commenced in the Court of Common Pleas, and was there referred to an auditor, whose report in favor of the plaintiff was confirmed at the June Term, 1870, and judgment thereon was entered for the plaintiff for $13,512.46. Thereupon a jury trial was had, which resulted in favor of the plaintiff; and the case was appealed.
At the trial in this court the plaintiff offered to read the report of the auditor as evidence; and the defendant objected to its admission on the ground that the statute under which the case was referred to the auditor was contrary to the Constitution of this state, and of the United States, inasmuch as it impaired the right of trial by jury as secured by the Constitution of this state and the Constitution of the United States. But the court ruled that the auditor's report was admissible, and permitted it to be read as evidence. To this ruling the defendant reserved an exception. The court also, in its charge to the jury, instructed them that the report was prima facie evidence of the plaintiff's claim, and entitled him to a verdict in the absence of evidence to the contrary of it. And the defendant excepted to this instruction.
The act under which the case was referred was passed in 1867. The act provides that "when a cause is at issue in the Supreme Court or Court of Common Pleas, if the form of action be assumpsit, debt, covenant, or other form of action in any way involving accounts, the court may in its discretion appoint one or more auditors," c. The act further provides for a trial by jury on demand, after confirmation of the auditor's report and judgment thereon, "in which trial," the act proceeds to provide, "the report shall be prima facie evidence of all matters expressly embraced in the order." The statute now in force is substantially the same. Gen. Stat. R.I. cap. 204, § 10 et seq. The clause in *107 the Constitution of the state with which the act is supposed to be in conflict is art. 1, § 15. It reads as follows, viz.: "The right of trial by jury shall remain inviolate."
The statute in force previous to 1867 contained no provision for a jury trial, being, in that respect, more obnoxious than the statute under consideration. It was, however, somewhat less comprehensive than the act of 1867, being confined to actions relative to partnerships and joint accounts, and to actions involving matters of book account. This statute first appears in the Digest of 1844. Previous to that time, and previous to the adoption of the Constitution, the courts had power to appoint auditors only in actions of account, and in actions on the case between partners.
The act of 1867 and the statute now in force are very similar to statutes which have long been in force in Massachusetts and New Hampshire, — the statute in Massachusetts having existed since 1817, and the statute in New Hampshire since 1822. The reports of these states contain many cases involving the construction of those statutes, but none that we are aware of in regard to their constitutionality. The Constitution of Massachusetts, adopted in 1780, and that of New Hampshire, adopted in 1792, both expressly declare the sacredness of the right of trial by jury. The fact that the statutes referred to have so long existed without any impeachment of their constitutionality is strong evidence of the prevalence of a belief in those states that they could not be successfully impeached. It is a fact which admonishes us not to pronounce our own statute unconstitutional without the most careful deliberation.
In Vermont an act was passed in 1856 authorizing any county court to refer any civil action pending therein to a commissioner or commissioners, and providing that the commissioner's report should be prima facie evidence upon a trial of the action before a jury. In Plimpton v. Somerset,
The counsel for the plaintiff contends that the act does not affect the right of trial by jury, but simply prescribes a new rule of evidence which the legislature has the power to do. The legislature has such a power without doubt. Acts by which a tax deed is made prima facie evidence of the regularity of all proceedings antecedent to the deed, have been declared to be constitutional. Hand v. Ballou,
But again, if the legislature can make the report of an auditor prima facie evidence, why not the judgment of any other tribunal? Why, for instance, can it not make the decision of a trial justice prima facie evidence in the trial, on appeal, before a jury, and at the same time extend the justice's jurisdiction to cases involving large amounts? It will hardly be contended that the legislature has the power to do this. But if not, how has it the power to pass the act under consideration? The exercise of the power may be unwise in the one case and wise in the other. But the question is not a question of wisdom but of constitutionality. The question is, whether the right of trial by jury under the act is the same as it was prior to the act, — whether it remains inviolate. The right of trial by jury is the right to have a jury hear and decide upon evidence the issues of fact which they are empanelled to try. Is not this right impaired if the jury is required to decide, without hearing the evidence, it may be, according to the report of an auditor; or, in case the evidence is submitted, is still required to decide according to such report, unless the evidence against it is clear enough to convince them that it is probably erroneous, and even though, independently of such report, it might decide the case another way? We are constrained to the conclusion that the right is impaired or violated when the minds of the jury are or may be so trammelled and controlled If such legislation were new to American jurisprudence, we should have little hesitation in coming to this conclusion. The fact that the constitutionality of similar acts long existing in other states has not been questioned is a fact which cannot be disregarded. The fact however is not decisive. An unconstitutional act which is not too often used, and which when used works well, may be long tolerated without question. In our own state the act contained in the Digest of 1844 which was in force *110 many years, created little or no dissatisfaction, for the reason probably that it was very seldom applied in any case where either party strongly objected. We think the decision in Vermont, which coincides with our own opinion, is to be followed, rather than the practice under the several acts referred to which is against it.
The plaintiff calls our attention to the fact that the case was referred to an auditor by agreement. We do not see how that makes any difference. An agreement to refer a case to an auditor is not an agreement that his report may be used as evidence in the trial of the case to the jury, if the provision of the statute making it evidence is void.
We grant a new trial.
The new trial thus granted took place at the October Term, 1875, for the County of Providence, and resulted in a verdict for the plaintiff, his damages being assessed by the jury at $15,904.61.
The defendant then filed another petition for a new trial. The reasons alleged for this petition are stated in the opinion of the court.
Addendum
This was an action upon certain obligations held by the plaintiff against the defendant to recover the amount due upon them. The defence was that there had been a mutual borrowing and lending, and that the plaintiff, if entitled to recover at all, was only entitled to recover a balance of account. In support of this claim the defendant produced certain vouchers which were allowed to go to the jury as evidence to reduce the plaintiff's claim, if upon the testimony the jury thought they should be so applied. The jury returned a verdict for the plaintiff for the full amount of his claim. The defendant petitions for a new trial upon three grounds.
1. One ground is newly discovered testimony. The defendant produced the plaintiff's receipt, dated December 27, 1859, for five promissory notes, which were stated in the receipt to be to the defendant's credit in account. The notes were made by Jeremiah Knight, payable to the order of the defendant in sixty and *111 ninety days, and in four, five, and six months. They amounted in all to $5,343.47. One of them, namely, the note payable in four months, being for $1,100.00, was embraced in this suit. Aside from that, the earliest obligation sued is dated February 28, 1860. The plaintiff testified that the defendant was owing him six or seven thousand dollars when he received the notes. If this be true, the notes having been received on account, would not be applicable to reduce the account in suit, for every item of the account in suit, except the note at four months then received, was of subsequent origin. The plaintiff further testified that he surrendered, in exchange for the notes, obligations which he held against the defendant to an equal amount, so that on his part the transaction was completely adjusted and closed. The jury evidently believed this, to the extent at least that the notes were received on an account then existing against the defendant to an equal or greater amount; for they show that they so far believed it by giving the plaintiff a verdict for the full amount of his claim without deduction or abatement. The plaintiff made still another statement, namely, that none, or at most only one, of the notes was paid to him, and that, becoming disgusted with the notes on this account, he returned them to the defendant, who gave him other paper for them. It will be seen that this statement is in itself immaterial, for if the defendant was entitled to a deduction on account of the notes, the notes having been given up, in exchange for other paper, he was equally entitled to a deduction on account of the paper received in lieu of them. The defendant professes to have been surprised by this statement, which he says was never before made, though there had previously been two jury trials at which the plaintiff had testified. He makes affidavit that since the trial he has discovered testimony to contradict it, which in the course of the trial he had no opportunity to discover or produce. It is to introduce this testimony that he asks for a new trial. The newly discovered testimony, even if the defendant had had it at the trial, would have shed no direct light upon the material question, whether the notes were received on an account against the defendant to an equal or greater amount, or upon the question whether the plaintiff gave up in exchange for the notes obligations which he held against the defendant to an equal amount; but would have been *112 valuable only as it affected the plaintiff's credit as a witness, by showing that upon a collateral point his testimony was incorrect. The new testimony, however, as exhibited in the affidavits, is not even upon this point a complete contradiction; for though it clearly shows that two of the notes were paid directly to the plaintiff, it only creates a presumption or probability that the other two were paid to him or for his account; and, as to the two notes paid to him, it shows that they were so paid that he might well be dissatisfied or disgusted with the manner of the payment.
Such being the case, ought we to grant a new trial to enable the defendant to use the new testimony? We think not. The case has already been twice fully tried with the same result, and a new trial is seldom granted because of newly discovered testimony which goes merely to a collateral issue, or to the credibility of a witness. Hilliard on New Trials, 875, 885; Warner v. West.Trans. Co. 5 Rob. N.Y. 490, 498; Campbell v. Hyde, 1 D. Chip. 65, 70; Crafts v. Union Mutual Fire Ins. Co. 36 N.H. 44; Sproul v. Fire Ins. Co. 1 Lans. 71.
2. Another ground assigned in the petition is that the verdict was rendered for an amount in excess of the ad damnum in the writ, — the ad damnum being only $10,000, and the verdict being rendered for $15,904.61. No new trial is necessary to remedy this error. It can be remedied by a remission of the excess. To this the plaintiff consents.
3. A third ground for a new trial is that the jury allowed the plaintiff the full amount of certain notes which the plaintiff had compromised and taken up for about fifty per cent. The amount of these notes is $2,800. The excess of the verdict over the ad damnum is much greater than half of this with interest. The error will therefore be corrected by the remission of that excess.
We deny the new trial, the plaintiff, however, being required to remit the excess of the verdict over the ad damnum of the writ.
New trial refused.
Subsequently the defendant asked for permission to reargue this last petition for a new trial. The request was refused and execution issued. *113
