*1 PERKINS t>.SCOTT. March v. Scott.

Perkins auditor law— Constitutionality Waiver. Stats., of ch. provisions Gen. auditors, for casesto providing sending the auditor’s making evidence to the report violation jury,

of the constitution. By so, C. If J. should objection be taken when Cushing, the order of made, reference is and if not so taken is waived.

From Grafton Circuit Court.

Assumpsit. Plea, the general issue with a set-off. The action was referred to an auditor, who heard the and made a parties report favor of the plaintiff. return defendant Upon report, the moved to set the same aside for the reasons stated in certain affi- davits. The court denied the motion, and the defendant excepted. The defendant then elected a trial by jury. Upon trial, the plain- tiff offered report evidence, and the defendant but objected court admitted it, the defendant For the excepted. purpose determining the questions raised motion to and the reject, ques- tion of the admissibility evidence, report the case was taken from the jury. All questions of law arising case, and all foregoing ques- tions of the exercise of proper discretion, were this transferrred to court determination, by J. Stanley, for the defendant.

Shirley, I. The auditor’s report was not admissible as evidence. This ques- tion was carefully considered court supreme of Rhode Island, in Francis v. Balcer, decided February 24, 1875. That was an ac- tion of book assumpsit upon account, divers notes checks.” ours, Under law like was referred an auditor in the common who in favor of the pleas, reported 113,512.46. plaintiff The case up came to the court At the trial this supreme appeal. offered to read auditor as plaintiff evidence and report the defendant to its admission on objected the statute under which the case was auditor was contrary referred to the constitution of this and of state, States, the United inasmuch as it im- paired as secured the constitution of - state, and the constitution of the United But the court States. ruled that the auditor’s admissible, report permitted read as evidence. To this defendant reserved ruling exception. The court in its them that also, to the instructed charge re- port evidence of the and entitled him claim, prima plaintiff’s facie And absence

to verdict of instruction.” it. contrary evidence *2 to this defendant excepted is in in ours, The statute like and has force since some time been time, Previous to that the 1844. constitution, and to previous adoption the in courts had to auditors actions only power appoint account, and in actions on the The pro- of case between partners.” Rhode'Island, vision in the in is, right constitution question, —“ shall remain argued inviolate.” cause full bench, 10,1874, the on October the same grounds Oopp the relied Henniker, substantially v. same authorities were upon. 24,1875, J., unanimous Durfee, O. the February opinion On of delivering unconstitutional, set forth the held the law the grounds Somerset, 283, v. Vt. ante. Henniker, in v. Oopp Plimpton The act of the statute now in says, Judge Durfee, in force, long similar to statutes been force in very which have hav- Massachusetts New statute of Massachusetts Hampshire —the .1817, and of New since 1822. existed since the statute ing Hampshire construc- involving these states contain the many The reports in but statutes, regard of those none we are aware tion constitutionality. Massachusetts, in The constitution of adopted in of New both declare Hampshire, adopted expressly and that trial by jury.” sacredness arguments of reciting the stereotyped opinions After Plimpton Henniker, v. the opinion Durfee concludes Judge v. Somerset Oopp Vermont, with our think decision which coincides saying, —“We rather the several followed, is to be than under practice opinion, own Massachusetts, and New Rhode Hampshire, referred Island], acts [in fact it. The calls our attention is plaintiff which an We not see referred to auditor do how by agreement. case was the that auditor, an in agreement difference. An to refer a case to any makes that his used as the trial may be evidence agreement report is an if statute making case evi- provision a new trial.” is void. We grant dence Henniker, is authority, This decisive. The' light Oopp same; Baker case action in Francis v. and the were present forms of action, constitutional statutes provisions the causes same; auditors were essence the states, powers two Island, constitution, just before the existence of the what Rhode v. Henniker assumes were here before the: opinion Oopp &c. revolution, the auditor imaginary several distinctions —real or II. But —between or at a caveat has the referee have been least patented, law defendant, who has consti- way thrown tiled been heard before decided. No inconsider- be tutional has that, amount of labor show these expended respects able un- is also the constitutional test. This was the historical laws, two no provisions A at room the constitutional leaves necessary. glance H. Sherburne, 1 N. Merrill notwithstanding for ai’gument, v. SCOTT. PERKINS

But we but remind respectfully, earnestly, must none less court that river of and floods like time—has its ebbs history —the other streams; and that treatment such a any mode of question, which as conclusive the one tenth of favors history pet adopts the nine which make in the direc- theory, rejects tenths opposite tion, will not itself to an intelligent profession. commend act, The auditor law covers less than but so far as space the referee they both the same go, they ground, same effect. occupy Auditors be an or an may “when accounts appointed investigation action,” examination may &c. Referees necessary of vouchers cause which an extended ex- appointed require accounts, books, vouchers,” amination of &c. It needs argu- that, ment to show these cases can be sent constitutionally auditor, and his can made evidence report prima facie *3 trial, referee, the same can be a sent to and his can report constitutionally be the before same effect given jury. ” “ 1. cases, In all these if either or refuses to party neglects try his case auditor, before the his trial sacred is taken by jury from him default,” “nonsuit” or if trial, he to goes report makes a him. case There is not a of evidence, particle otherwise, historical or which has to show any that this was so tendency before 1792. Those who assert it bound to it. are The prove doc- trine v. is, Henniker that the fee, provisions re- Qopp lation to appeals, penalties exercise of a constitu- imposed upon tional right; that, unless in substance existed before adoption of the they must be present constitution, deemed unconsti- tutional, as With how impairing by jury. much greater force does this reasoning to the still burdens greater apply imposed by the sections of the auditor law to. referred 2. said But it is that there were auditors at common law in actions of account. What of ? not They were the auditors of the statute. They no such and their powers, reports they made reports —if in writing no such' merely effect. They computing —had machines before ing. the court. Whenever an issue of law or fact was raised their

them, functions were could suspended. They decide noth- could to the They only certify points settled it with or without to the intervention of then ordered its machine on with its go the auditors must follow computation. There the de- cision the court or statute assumes to jury. change ends, and make the court or utory follow the decision auditor. The stat- auditor is a court invested with full to power decide questions of law and fact raised before it. The court supreme just decided that, Moulton Parker 35 N. H. anything, Young, decided 92, $ where Hibbard at Harry length to argued contrary. great Nothing is better settled than that are not auditors probate appeals auditors under the statute. The auditor common law and the auditor the statute next nothing have to common. 3. Auditors as a fact—for to acted, . none appear save in 5

VOL. lvix.

58 PERKINS v. SCOTT. only to existed appeals, prior They 1792—were probate myth. fairly From the earliest times

imagination. the files auditor No trace has of any swarm acting references. been discovered no under oath prior 28,1836; to December existed to No 23,1823. blank commissions the act of prior June very to an auditor in was sent Merrimack but 1833, county between that time written printed few no Apparently 1835, till existed when the late Justice commissions Chief Bellows was, was he auditor in Pinkerton v. Williams. Cautious as he sworn, and the a thing commission plainly shows that such not trace In Grafton county, from contemplated. never Justice auditors can be found. At Chief May term, Stevens, Benjamin case of presiding, Samuel Jr. Richardson reads,— auditor, N. went to an 508) Hall “ H. commission (6 whose consideration appear, agree refer this action to the parties N. the ac- Brewster, who is state Esq., Amos auditor to appointed to this made between parties, of whom report being counts court, conclusive being entered final and judgment thereon, Brewster execution to Said parties, issue accordingly. between the time and place in case either and, is appoint meeting, ex notified, after attend being duly proceed said auditor is shall No trace auditors can be found, the revolution parte.” writing, as evidence that there ever made nor a report times, earliest from the went such, ever findings term, Rockingham form. county, the September signs entry docket that N. A. but auditor, Haven was is, commissioner, so signed, name his notice the parties, he is “to ascertain the facts relative to claim preferred *4 defendant,” A made &c. new was entry plaintiff Cutts, term, 1771, and the Sami. audit county September says, docket —“ Hurd, on the Jno. to Sparhock, make Jno. an appointed soon as between as and same dispute parties, return the acco’s is no be; Cutts, Sami. to There Esq., and appoint time may place.” file, on did anything, of evidence report that the auditors trace were not in the probate show as appointed by consent, toor next same at the year. case case was tried appeal the only This was 1823. Actions audited from to term. account, account, for on account and for balance assumpsit annexed, none of came In before the unfrequently and council. governor slightest there to one is allusion auditors, though these v. 1769) Livius partner) v. (1768, James (surviving Moffat. Moffat Boston, Meserve and and Livius of Peter Moffat owned one Each, having contributed proper proportions, partners. and into vessel cargo. Moffat Livius to enter induced third “ instead, under a but promise to account with arrangement him,” consent, on voyage vessel without excluded plaintiff’s sent and control converted management, from and practically him earnings and to record cargo, is, his own use. The vessel, —“

PERKINS v. SCOTT. court are of to that this demand have been opinion ought prosecuted an of account on the when the action not by trespass case), (and appellant, the have had an defendant, original might opportunity so giving issue, account, his proper exhibiting they might auditors, properly laid before so that a account adjusted just equal judgment have been &c. This and second case might had,” (Livius were both before the court at the pp. 184-190) Moffat—see same time. The court tried con- hard to induce adverse to party sent that an won might refused, be but and thus accounting had, his cause. Langdon (June 1771) Sherburne appeal a decree of the an administration judge allowing account probate, “ for the expenses sale certain estate. The parties, being real called, ; and said appeared account it produced, appeared being the court that the same articles that many consisted be better might the examination and explained by the auditors, suitable to which report offered no court parties Accordingly the objection. appointed Stadly, James were George King, Mr. Peter Peirce Esq., (who and audit respectively approved examine parties), account, said and to make as be.” thereon report speedily might This was only case sent to Why auditors court. set out that it was done by consent of the if the court had the parties, power or was the habit sending auditors, even such cases against the will of either ? So far as this case has a tendency prove any- thing, proves that auditing referring cases stood same upon the basis, that neither could be done without consent of At a parties. later Governor period Plumer, associates—Jeremiah younger Smith and Jeremiah Mason—were in active practice. Plumer’s Life shows auditors; abundance of other hearings, nothing but Life —see of William Plumer, page

4. Governor Samuel Bell was the real author of the auditor act of June but not of the In his clauses. penal prima facie of 1822 message he said, The law in relation to the of audi- powers tors, appointed actions of account, superior requires, * * * revision and I thought, amendment. would therefore recom- mend that the law this be so amended auditors subject invested with the in causes power compel parties, depending them, produce books and and to oath such answer on papers, interrogatories tinent relating controversy, may matters be per- material.” credited that an hardly experienced legislator, scholar, Bell, like Governor could have jurist, referred to “ law, *5 the common amendment,” when he used the terms revision,” &c. In he is present,” next also be- very paragraph says,—“ lieved that the law relative to suits debtors and against absconding their trustees is amendments which would render susceptible useful)’ more &c. know that he here extensively We referred a statute, can it. no to audi- because we find The fact that statute relative tors has yet decisive, been is not when we found remember within last five has that has never been at least one act years passed

60 and whose existence is known to three or four published, while acts only persons, in the statute books which were never at appear all. passed pursuance suggestion act was introduced governor

in the and house, passed by but the action of the body, senate session, the next did law postponed so not become a until act, A glance the amendment of 1836 revisions (the of 1842 1867 being merely condensations the former statutes), shows that the conclusively substance of the of these powers statutory auditors —all that concerns the case—was the creation of present much later than the constitution of and must stand period 1792, or fall that ground. upon 5. But it is that the suggested act the auditor can be sus- provisions tained that this was a upon branch chancery jurisdiction exercised the governor council before the revolution. Governor in Bell, who was a situation to know what he was saying, manifestly did not think so message 1821. The legislature —see in v. Hennilcer suggestion rests chiefly upon Copp supposition—the in Judge Pierce, Wells N. H. 513 for guess—of Bell, cited from York, authorities New and other states which have copied its have no here. used jurisprudence, application very language Bell, Wells shows that by Judge Pierce, given history 1692 to the of the action of the and council revolution) governor (from examination, or none no worthy the name. relation to council supposition governor goes upon concession no virtual other tribunal had or general either original If it chancery jurisdiction. otherwise, were was the why power special the “inferior” and conferred courts “superior” chancer mortgages bonds, &c. ? But whether con- penalties not, the evidence is solid aside from that, governor ceded council, no court had either original chancery There jurisdiction. “ chasms council, the records but governor are wise change sweep character of the historic stream. On they are whole full. From the remarkably recreation courts 1699 to measurably —from From October perfect. 1716— 1742, May records they are These measurably perfect. termed the and of indifferently records the court of appeals, court of &c. show the chancery, They the interlocutory process, pleadings, motions, &c., &c. From the the end beginning there which can, by any known distortion of the nothing English language, chancery termed sense which term proceeding, understood suits of by lawyers. ejectment There are ejectment, now disseizin, of entry clausum, trespass, trespass trespass quare case, trover, slander, &c., broken, debt, covenant indebitatus special assumpsit, assumpsit, assumpsit, general of common counts. It will be new revelation profession cloud this state to of suits in chancery. learn these are the ear-marks Life of The lessons volumes of Provincial eight Papers, to the same Plumer, Belknap’s History, unmistakably point

PERKINS SCOTT. conclusion. Dr. says, lords of the Belknap committee reported to the king council their several articles of the com- judgment upon ‘ plaint, in substance That when follows: the law of England, lands are granted condition, the of that must be upon breach condition found by a and a jury, commission from the court but chancery that no such court existed in Hampshire; though New the general rule was that the law of England colonies, extended to the it must yet be understood to mean such of the law as is state part to the adapted and constitution of them.’ Hist. Belknap’s This was in 1773, and before the lawyers revolution. knew English the difference between that had ac- chancery tribunal quired its real title to that interchangeable decisions name, because its so often were an outrage equally law jus- equity, tice. The case of Hilton Fowler The writ in illustration. this case was dated August, 1760, and returnable at the September term, the inferior court of common It came before the pleas. governor and council at the term of October 1763. Governor Wentworth and his wife were in the suit. plaintiffs Several council were relatives Governor who Wentworth, chief- presided justice at the trial on the merits of his own case. records are as follows; “ Present His Excellency Benning Wentworth, Esq., Governor.

Theo. Atkinson, James Nevin, Richard Wibird, Wm. Temple, John Downing, Atkinson, Theo. jr., council. ^ Daniel Warner, Nathaniel Barrell, Joseph Newmarch, M. Hunking Wentworth at Josiah Hilton, trial.” present New- market, yoeman, Fowler, vs. Newmarket, afore- appellant, Philip said, husbandman, From a of His appellee.” judgment Majesty’s Superior Judicature, Court of Portsmouth, held at within and for His Majesty’s Province of on third New Hampshire, Tuesday May, being the 19th day month, of said in the first of His year Majesty’s reign, Anno Domini 1761, when and where the said Josiah Hilton was appellant, and the said Fowler Philip appellee judgment of His Majesty’s Inferior Court of Common at Pleas, Portsmouth, held in and for said the 21st Tuesday day April, 1761, province, adjournment in an action of ejectment commenced the Inferior Court mentioned, Common Pleas namely, first an action of ejectment —in wherein demanded,” &c. follows the [Here declaration.] which Inferior Judgment Court of Common Pleas was rendered that defendant recover costs of taxed at the plaintiff sum fourteen nine new Tenor bills credit of this shillings, pounds Province, from which said Hilton said Josiah judgment appealed to the next of Judicature, when and where the Court Superior appeal was entered, fully council learned and, heard parties being laws, according sworn case was committed try of their who made return verdict thereon issue, *7 v. SCOTT.

62 PERKINS It was of court. and find costs oath, say the for the appellee and be that the former judgment therefore the said court adjudged against recover affirmed; was said Fowler thereby and that the Philip twenty sum courts, at the the said Josiah Hilton costs of taxed said the said court ten from which shillings, pounds judgment a court and Council Josiah Hilton moved for the Governor appeal se- give that the appellant which was on condition Appeals, granted Court of the next setting at first curity the the prosecute appeal said the and effect; security was given, with and Appeals Josiah accordingly at in this court his said Hilton, appeal entered appellant, then Term May till Term, 1761, October next and from thence continued till was continued 1762, said Term from again May parties 1762, appeared; where the October Term then next when and court and the law, learned being heard counsel fully that a Per- the court divided in it was considered being opinion, for the for the present Judgment emptory premises suspended stand con- the case and that thereon, further consideration of court 1763, when term, viz., term May tinued that end till next when appeared, was when both again parties continued till term died Hilton, mortgagor, it was that Richard agreed by parties by counsel ; fully then heard and, in November, being that the 1743 the parties of the Superior law, judgment hereby learned it was considered reversed; and Judicature, from, Court of appealed demanded the premises that the in recover appellant against appellee 9d. N. Tenor. at 13s. writ, taxed £77 and costs of original His Majesty’s an appeal From which judgment prays the appellee his said Council, ap- bonds to prosecute which was granted, giving ; and the ap- accordingly given was law, peal according security of posses- have a writ also might that he pellant prayed appeared granted, was sion, notwithstanding, the above said appeal &c., that and damages, all costs appellant giving security shall be respond reversed shall be occasioned in case thereby judgment and accord- the said His in his Majesty appeal; Council Privy sureties,” &c. ingly gave bond with appellant a majority in carrying succeeded plaintiff chief-justice having note; 338, lb. 104, charge of his court Prov. family Pap. (see of the plain- favor “First,” 336, note) note Farmer’s Belknap (1) The sheriff re- 16, 1764. tiffs, January a writ granted of possession satisfied 19, 1764, turned, possession, that he had delivered April &c., which Hilton, Hilton, gave to Josiah costs, attorney to Edward with- 1779, plaintiffs of the until profits April premises out right. £ New Hamp- legislature act of 27, 1777, June passed authorizes length, Philip at shire, after of the case history reciting land in controversy, of the Fowler devisees Fowler, Jacob superior of review the a writ Fowler, deceased, bring Philip land, all|the costs possession recover judicature, if judgment of the courts; land, mesne recover for the profits authorizes in England; for them or their father been given accord- brought &c., &c. Suit court to issue a writ possession, of Sep- Tuesday first on the and the obtained judgment ingly, plaintiffs Exeter, for the at court holden tember, 1778, at a term superior Hilton, Josiah land, with fifty-six against acres of the appurtenances, ¿£28 Septem- issued and for costs ber, 7s. 6d. Writ of taxed possession writ Weare, This Esq. the test of Meshech 1778, under put who Parker, sheriff, served plaintiffs John September suit. land, them the costs possession paid by Philip a suit for mesne was commenced Subsequently process also, Hilton preceding Jacob Josiah for costs damages *8 and Elizabeth finally by suits. All suits matters were adjusted these one Hilton, who had Hilton, widow and sole executrix of Edward on a bond of the and she 27,1779, gave original plaintiffs, April against sum of ten thousand them day indemnify pounds Josiah claims in out of suits and by against any way growing Hilton. “ brought The old MS. suits ejector,” records show casual Waldron, Mason, Allen, by &c., were by tried, against challenge ” “ lands, whom the Mason interest had deeds juries qualified on the same their standing proving footing plaintiffs, ” “ decided the two or three who testimony very jurors to have seem, as it seem case. these Strange party-witness-jurors instance, accord- believed their own ingly. and decided testimony every could In 1756 the by and council decided this court governor councillors, com- be held three and that the of the court judges mon could review in this causes very court the pleas had had sat and which been reversed in the court. there, superior of pro- The Wentworth were at this time of the court family judges bate, and council, of the court of common members of the judges pleas, court Nor Wentworth ex family of last resort. were the judges offieio Wibird, causes Livius, an others and appealed exception. kind to themselves. If the and council were a governor “ sacred,” from trial is juries anywhere could number jury range eleven, cases, and on their own three to could sit jurymen sale, if not Nothing could sell their decisions auction. private of fact as clearer that the council acted as triers governor than The same could, and had but themselves. any much last two resort true council. The courts equally privy unless they decided all of law and fact without questions any jury, of our law. meaning were within “ utterly Livius Moffatt In the case of defendant 1769), (1768, him to a answer demand made any originally refused to make in said court that had no original jurisdiction.” appeals—a Livius matter, being This was a Judge partner partnership in equity, Such a to be ought cognizable Meserve Moffat. matter in,” “give is. court tried hard to make the defendant anything denial but he the defendant ousted not, plaintiff would PERKINS SCOTT.

of jurisdiction. If the governor council supposed they had had original equity jurisdiction since have 1692, they might decided otherwise. Wentworth’s George case, the governor council had remitted the cause to the superior court for trial. The superior court disregarded the mandate, but Wentworth failed take from that appeal decision. He brought the matter before the gov- ernor and council by petition, asked them to man- enforce their date. old Notwithstanding acts, which made, reference has been giving the provincial courts the powers of king’s bench exchequer, &c., the governor and council, case, term, 1774, at the May held that this court no jurisdiction have causes but such are brought before them appeal.” Governor Plumer was born in was reared in at the very mosphere this court. His life says, Under the colonial govern ment, causes of importance wrere carried for decision in last up, resort, to the governor council, with the right, certain cases—a right seldom claimed—of appeal council. king As the execu tive functionaries were not generally lawyers, the titular judges were oftener from other than professions they were not much legal, influenced in their decisions by known of established principles law. indeed, So much, was the result supposed to depend upon favor or aversion of the presents suitors to the judges were not uncommon, nor occasion, perhaps unexpected. On one chief-justice, who was also a member of the council, is said to in quired, rather of his impatiently', servant, what cattle those *9 had waked him so unseasonably the morning their lowing under window; his and to have been somewhat mollified the answer that they were a of six yoke cattle, feet which Col.-had sent as a present to his honor. ‘Has he?’ said the must judge; look —‘I ” case; into his has been court long Life of enough.’ Plumer, pp. ; 150 3 Hist. 256. Belknap’s representatives have not left us people in the dark as to how they this court. regarded On January 10, 1727-8, the house of “ representatives solemnly set forth that, Whereas, the Court, Some- times Called Court of and Sometimes appeals, the Court Chancery, assumes an arbitrary without foundation or power and precedent, whose Neither Nor Known proceedings Juries, and Laws, Rules which renders the Estates of his Maj’ties good within this Subjects Province most their Circumstances most precarious, Deplorable, has a Generali for Cry ocasioned Relief under So heavy Bur- whereas, Hon’r ; his the Liv’t and, then Governor has Signified to us, Made to the hon’ble any That Board, his Instructions upon application erected, already Court Disolving and, forbid the therefore, wee him,” from remedy &c. May They Noe voted to Expect appoint “ at the Court of Great Brittaine, agent Memoriall to appeare mentioned, Grievances before and to Maj’tie his Grace Implore Court; the Said ordering or, and favor in Disolving as in his then a New Regulation It, wisdom Shall be, Princely Seem made Right.” governor .council, their reply, but claim chancery, they to the course of proceeded according Board, in said, the Board on the thought the vote reflected highly Saying the Court acted without Law or appeals president, “ that the house ; Same was a for the Scandalous lible voted “ Retract a Con- their vote.” The two houses had house refused. The ference about A committee about the Court of Dispute appeals.” “ earn, to Draw or additional! appointed Some Sell up altering Councill.” Regulating The Court before the Governor and appeals, aristocracy, way, represented council, give refused governor 479, 480, to dissolve the 4 Prov. assembly. Pap. 481,485, 489 272, 273, lb. 275. Settlers about began move into the lower of the part province They were came hardy, They men. rough, independent anywhere, none. were outside of all government, responsible They claimed all a kind the inherent and set up rights Englishmen, of squatter till their own. in numbers sovereignty They increased they were made of Massachusetts. sover- part squatter eigns and descendants, their made into a will, sepa- “ rate province, Mason, the sole Lord Pro- purpose enabling as prietor,” himself, he styled to rob them of had— substantially their lands. From this time until the four fifths of all revolution, lawsuits estate, were about real or troubles that arose on account of it. Mason and his creatures, Barefoot and Hincks, Cranfield land-pirates, tential in as quality,” they styled themselves, always po- council, side, were on one and the squatter sovereigns, their allies, and descendants, on other. mixed, never They though sometimes the outside pressure fagot, scalping-knife, tomahawk, forced them to act as one. favored Occasionally, governor comons,” as Governor Dudley three times termed them one message; but, his mailed hand was on the throat general, squatters. Neither cared for the of trial party really civil causes, in relation to real estate. If the except could squatters have secured would that, have abandoned it cheerfully respects estate, else. If everything denied to real the court were con- tent. There was little trouble from 1699 1702 but respect from 1702 to 1715 the bitterness toward the people intensified gov- ernor and ensued; council. A lull controversy brief but the soon re- *10 vived, and ; culminated in in 1727, referred to explosion already though the bitterness than ¿650 after 1750 was less before. An appeal, when the amount in ¿6100, in all controversy lay, exceeded cases, to governor and This tribunal council. decided that costs in the tribunal below went to make amount. jurisdictional up Causes were from sessions to the common appealed general pleas, from the common court, to and from that to the gov- pleas superior ernor and council. In latter, they every appellate except were tried of our issues framed much after pattern probate ; but the causes appeals council tried without the governor always When their merits.” try of a assumed to them They aid jury. they orally, them before it, felt like witnesses were examined

they sover- squatter not. The and what decided what facts were proved, reached when nothing came to by jury, eigns resort; regarded aristocracy land-pirates while the the court last every attempt resisted successfully this court as their stronghold, its constitution and mode change procedure. to attempted the house 3, 1727-8, representatives On January governor to the appeals court granting prohibit superior Whereas, there forth, the house set January 4, 1727, council. On —“ concerning Province within this Sundry has Inconveniences arisen : That charge exterordiuary at Tryal land, of Titles of psons being The has Courts thro the & Inferior gon Superior when Expense Exterordinary which Reason councill, by to Governr & appeals That, voted, Whereof, arise, Remedy Do and and Difficulties Concerned, actions ways any of Land is in in all cases where Title and, in of Common pleas, first at the Inferior court shall commence court of said and Sentence from ye Judgmt one any appeals and end Issue be a finall shall Judicature, there Supr of three vallue the True Exceed unless the Matter or Cause thereof, his Majtie may appeal then sterling hundred pounds Title of where councill; granted and that be otherwise In Land is noe appeale Custome, contrary to the Concerned, any Law, usage, be Drawn up an act and that Notwithstanding; wise thereof was A vote house, in the 9, 1727-8, On accordingly.” January of appeals at the Court to have a jury Drawn up, passed, as Shall an Oath councill; take councill ye Govr & each “The day, same was sent up.” The vote on file be prescribed. if some proper messa That concurd, and a vote Brot Down Non above them.” take Readyly would was Drawn the councill up Oaths Jury for a vote house “The January 1727-8, On Board Message pray Sent with a was up again Court appeals Dr. Bel- 476,478. vote,” Prov. pp. to reconsider Pap., —4 were disposed the House The triennial says, being passed, knap allowed was An appeal make other alterations the government. court; if the matter superior from the inferior in all civil cases was another appeal one hundred pounds, in allowed to the exceeded controversy hun- three if it exceeded Council; and Governor and Governor and The appeal Council. King dred pounds, commission, continued first established Cutts’s was Council Queen time, it Anne’s instructions. commissions and subsequent Council re- the Governor of as grievance complained do justice. an oath to taking and decided causes without ceived appeals this court authority and taken. An oath was then prescribed disrelished but was laws, clauses had been several recognized de- had before who the Judges, because many partly by cided people council, because partly cases, members generally no such because admitted in this court appeal, partly *11 PERKINS v. SCOTT. institution was known in the Province of neighboring Massachusetts. The House moved for a in rela- several clauses laws repeal tive to this court; vote, obnoxious the council lion-concurred their referred them to the The royal instructions. House in their persisted endeavors, and warm, the Council in their Both sides opposition. grew and there was no of an accommodation. prospect The Lieutenant session, Governor end and soon As- put after dissolved the sembly by Belk. Hist. 91. proclamation.” With the revolution a new era was The sover- inaugurated. squatter “ eign idea, in relation to trial by came June jury,” On uppermost. 28, 1776, under the plan government 5,1776, they abol- January “ ished the court of in this colony,” appeals preamble &c.. “ in Whereas, these : words the granting such a Multiplicity Appeals Court, Court to and Trials consequent as hath been thereupon, heretofore in this practiced hath found Colony, been to promote Litiga- tion, Suits, protract increase the in this thereof, Charges rather than serve the Ends of Justice Colony. And, whereas, the allow- ance of Cases, in Appeals, to said Court of Appeals, or to the King of Great-Britain, is this depriving people'of Colony their great, inestimable, and inherent of Trial Right by Jury, and a Door opening arbitrary Decisions even in Property, Causes the greatest Moment.” Dr. Belknap says, assembly new begun their administration Judicial establishing Courts, the same system as before, except-

ing the Court of which had Appeals, long esteemed griev- ance, was abolished, to Great Britain appeals were prohibited.” 2 Belk. Hist. 406. v. Hmniker assumes that Gopp every person province, gen- eral, had law a a trial by jury. It is for us unnecessary consider this all, case what sense, if at that is true. The pre- revolutionary trial, or was one right, criminal, thing and —if it had an existence—a very different civil thing causes. No criminal cause could did law, or in fact, come governor coun- cil by way Civil causes appeal. did, were finally determined where no If in juries ever came. fair honest sense there before the revolution a to a trial civil province, ” “ causes, we have shown its in a few impairments particulars, “ “ which we trust have not fervently been made sacred in- violate” by the constitution of 1792. It is that we possible may have occasion hereafter to refer to other Add the auditor impairments.” act, with clauses, its penal other prima impairments,” facie and it seems us that this of trial pre-revolutionary right be- comes a minus quantity. It is that, true when the had less than entire four thousand province Mason and his people, tools—Barefoot and Hincks—assumed act as chancellor and assistant chancellors two matters which concerned Mason—and others. 1 Prov. perhaps Pap. evidence, There is that I to find, have been able which has any *12 68 show tendency 1692, court of of chancery, the act of high had any indeed, existence of 1699, to, or, after the act referred already after Massachusetts, this or went of province under the again wing that anything was done it than under the Massachusetts under more statutes 1692 of and 1693. council powers governor the two not, provinces Judge were identical. assume, seems Bell 317, 116 Mass. 318. Sparhawk Sparhawk, Prior to 1641-2 no was known sover- thing among squatter of eigns this kind or form province any chancery jurisdiction. of 169, 191, Judge address, 173, 193, 6 N. H. Hist. Coll. 192, Smith’s 194; 37, 67, 1 51, 52, 79, 106, 114, Belk. Hist. 115. 65, 76, 100, 77, 22,

From that this 1680, Massachusetts, time until which of January province here, was no as will be seen part, exercised such jurisdiction reasons, hereafter. For obvious until no such created jurisdiction Cutts, 1681, death 5, nor until after Waldron vacated April arrival place Cranfield, Cranfield 4, October 1682. created courts in the Mason interest of his appointed patron, probably chancellor, &c. His One oí their people. was denied power articles assembly, him was, himself and belonged power <fcc., act, he and that in his sole courts, such creation H. 516, 517, N. exceeded his 1 Prov. 556 8 commission. Pap. Hist. 1683-4, Ooll. 385. In acted as he seems have chancellor 313, three 8 154,193 312, cases. N. H. 152, 153, Hist. Coil. (21), 814, which 316, 15, 315, May 1685, left the country Cranfield seems to have been Mason left the end of Mason’s chancellorship. 1686, May, returned in died in York New 1687, spring August, 1688. These commissions The first —that were constitution. species &c. establish courts, Cutts—authorized the and council to governor clause; All succeeding substantially same commissions contained but office or Allen’s erect instructions You sháll not Court provided, —“ Judicature, es- established, erected or without Our pecial Order.” There to show that is not evidence particle council, chancery were powers given governor assumed to exercise and after that to Allen’s instructions any, prior new governor council to consent the creation of refused courts, ones instructions, that these subsequent a like Prov. character, changes. made their resist such duty Pap. 154, 155. 1688, Under the new order of from the revolution of things, flowing by laws created 1692 both and New passed Massachusetts Hampshire courts of high chancery, general jurisdiction. with original equity order,” For this neither the his council king gave any especial nor this did nor afterwards approval. consequence, lend out great court forthwith chancery dropped Massachusetts existence; fact, is a that in that state singular attempt hundred made to such a for one jurisdiction establish general equity were years, sixty-five though special powers, like PERKINS t>.SCOTT. When these

sprinkled statute-factory. from time to time along created, 4,000 courts had about Massachu- New Hampshire setts about should a court of 40,000 high chancery be Why people. kept up former, latter, for the and not nearly century when and a Massachusetts had ten times the hundred-fold population more wealth ? should Why than New limited and Hampshire special statute, if we chancery powers here then given had a ? The fact that no record general chancery jurisdiction exists, or other any chancery evidence to show that tending procedure existed fact, from 1692 to and the further province *13 record, council appears that the decided that had governor no to show that the original strongly tends jurisdiction, “supposed” here, chancery was If jurisdiction revolution, before the a myth. chan- cery powers all, were exercised here at it was not by governor the which, and council, but at assembly, general very time to alludes, reference, Bell was rules of Judge reviving cancelling off executions, striking levies, setting out judgments, blotting aside fraudulent conveyances, and relieving against judgments, granting divorces, and orders making alimony, sometimes, about though rarely, relief that granting avowed there was at remedy 508, 229, 439, 530, Comon Law.” 4 Prov. 420, Pap. 538, 607, 652, 570, 676, 788, 656, 675, 798, 799, 22, 804 7 Prov. 24, Pap. 49, 58, 66, 97, 67, 70, 82, 93, 95, 98, 109, 83, 84, 112,113, 118,123, 148, 159, 152,158, 164, 183, 197, 221, 238, 242, 206, 216, 258, 272, 283, 273, 279, 303, 319, 324, 308, 317, 318, 351, 368. Parliamentary the bottom this omnipotence lay jurisdiction. It matters not &c., were not petitions, always The granted. power do so was assumed and assembly. exercised the general auditor law cannot rest which had no existence. We are aware governor council sometimes acted as a legislature, “ star-chamber,” sometimes as a sometimes as a supreme ecclesiastical tribunal, sometimes as a a court grand jury, sometimes as of pardons, sometimes as a court often exercised bankruptcy, despotic But none these them a power. things chancery. made If the constitution to a causes, civil gives where tion, was not contrary in this before the revolu- practised province here, and if chancery had why no existence would not jurisdiction thereto be parties jury trial, entitled Judge decided, Parker as much if such would causes had never existed until since that time ? 6. But it is that if auditor often law suggested unconstitutional, it has been made constitutional for half a acquiescence century. The supreme Baker, ante, court in Francis v. have answered ob- “:

jection The fact that constitutionality acts, similar long ex- isting states, has not is a other fact which questioned, cannot disregarded. fact, however, not decisive. An unconstitu- act used, tional which is not too often and which when used works In our well, may be tolerated without question. state, own the act many years, was in force 1844, which the Digest contained was that it reason dissatisfaction, probably little or no created strongly objected.” party case where either seldom very applied not, question, speaking, ours settled if that court But —when which had existed v. Sherburne, species legislation in Merrill cen- nearly in substance of government under various forms here of 1792. constitution was under the of which years tury, twenty-seven — sound principles, Nor could it say, pretended, They —“ twenty-seven for the last them, usage uninterrupted pass the letter both amount to a justification, provided would years, charter them. That of our forbid the written charter liberties spirit 1 N. Sherburne, land to us all.” Merrill law the is H. 217. supreme from the allowed an Under the colonial government appeal Dur- and council. cases, to the governor certain ordinary tribunals, of law courts revolution, beyond of going same practice ing for took, under con- ; and the form which redress was continued ‘ restor- legislature, was that of a act special stitution him a new is, giving as it was called—that law,’ to his ing final to its decision had come court after trial in the superior Plumer 170. of law.” Life of ordinary course argued Governor Plumer Gilman, Mo Clary of the superior At the term unconstitutional. September *14 some Farrar, J., JJ.), upon O. 1791 (Pickering, Olcott, Dudley, were Other unconstitutional. decisions or other the act held of But it did not the current change other way. made the after-wards with them. The pre- The was beset legislature applications. these amble Whereas, 22,1808, to the act of December says, petitions a for the Court, restoration to the General praying often preferred Leg- is not burdensome to the only law which mode of relief course of individuals, also State, extremely expensive and the but islature said from the holding distance of place often live at a great who Court.” had of 1819, as both branches the legislature as late Even law,” &c. The on restoration to purpose committee standing legis- of the the superior place act of 1808 was to put before The hearings as to such petitions lature applications. oath. were heard under The witnesses committees were public. these of that the Titans were heard their counsel—oftentimes The parties cases Smith, like. The merits Plumer, day Mason, — were re- Many discrimination. applications sifted with great v. a re-trial of Merrill Sher- the act for Daniel Webster won jected. in that act Sep- court set aside body. such a superior burne us, that seem to tember, 1818. clear doctrine However —Ashuelot 387, N. was far from considered being v. 52 H. Elliot, Railroad —it with day criticised that decision then. The newspapers clear signed Governor Plumer bitterness. freedom unexampled he argued that as counsel had opposite had not forgotten He act. man, He an able as conscientious as view 1791. man whose would not him to scruples was able. The permit sign divorce, Dyer bill never giving Mary signed act which without believing the court set aside Merrill Sherburne his heart that it was constitutional. Mason defended its constitutionality Atherton, before the court. Sullivan and other lawyers but noted, legislature little took the same view. The less received the alone; In this were not Am. opinion incredulity. —see Rev., Law On June July, pp. 1818, they put “: Has to the court this new trials in question legislature grant in what ?” any case, so, The three judges Sherburne, enclosed Merrill copy opinion in its stated concurred statement constitutional princi- though had unable to Judge been sit ples, having cause, Richardson that was They counsel. assumed for the court to de- cide under what circumstances it would be give proper answer to questions other branches government. They refused answer, make further for the reasons : following But it would to foretell that impossible among complex ample subjects of arise, legislation, cases where statutes relation might to the con- individuals, clearly cerns been adjudicated, would be It deserves remark,,.also, warrantable. neither the opinion nor re- solve extends cases not been made or other proceeding, on probate, which a had decision time judicial interference of the legislature.” Plumer, Bell, That Governor Governor Judge Woodbury, Webster, others, lawyers, and act were able had no thought that the auditor was in constitution, violation is conceded. But the court in mind, must bear substantially whole body constitutional law this state has grown since that time. Prior to up the revolution matters, seen, we have non-political subject theoretical re- negative straint king, governor, the general as- assumed and sembly general exercised the omnipotent powers British of the everything revolution, for the time parliament. being, made creature of legislative For power. years over forty laid all after that the people grievances before the general court *15 redress; in for numerous instances the Journals of the House, —see It was then the of last resort, 1791-1793. fact. No first-class court both law and of lawyer ever sat the bench upon the superior before Jeremiah Smith. For more than a court century the judges lumber-men, merchants, doctors, had been hucksters, broken-down ministers, and and then lawyer. with now a poor Chief-Justice Dudley, Charlestown, Jeremiah Mason’s sending at demurrer to the jury, upon “ “ that such was a law cussed new-fangled cheat,” and “ be rights other course would fatal to the the jury,” illus- ; in its system whole best trates the estate though illiterate Dudley, man, years able for twelve chief of lawyer, our high- The bar was and able but est law court. small under such a state of chaotic, a chaos—not This volcanic, tlie law was a science. tilings unfavorable transition to onr in period history degree highest like that education and a new science legal science, especially authority constitutional law. Neither nor acquiescence,” v. Sherburne. great names, Why act Merrill saved the unconstitutional auditor in Perkins should now save the Scott? to suit. It concerns The is here a question raised between parties them Tlie defendant and the alone. judicial government branch inis taken this ex- no fault not He has because he was born sooner. at is no ception safety the earliest moment. There practicable men, time, are to rights of if its sworn because guardians, lapse all turn aside remit us from the of the plain constitution, path chaos. Bouton, historian, in an- July his state letter The Dr. [Note. much histori- chancery, reciting swer to our a after inquiries relation to court matter, among cal enacted in es- says, things, other unless law ‘ trace, evidence, tablishing exception, a court of be an I find no chancery,’ record of a as court of a court of relief appeals, distinct [Mason supreme as and a of which the Governor sitting chancellor], probate, court add, every council authority, that we have examined sole members.” We print manuscript, whether in which he refers.] and referees to III. of auditors authorizing statutes the reports The character, yet are inci- evidence, substantive given though the court to send causes dental to the main provisions empower ones stand, consequential If the main them. cannot provisions formal, and are two cannot. v. Senniker there decisions—one Copp out- authorities mainly former is upon other informal. The based is, first state, side this latter mainly reasoning. and the a to trial law a will a is constitutional which drives against chancellor, a before a where the same is hybrid person inquisition, the second is, and court of law—a tribunal unknown is a unconstitutional, the law so far as imposes penalty &o. fee, (in appeal, of trial exercise case jury. they had no illustrations existence cited 1792), If sound, one is These two decisions cannot stand principle. together. should term It is that the statute necessary the other is unsound. not its If a penalty, it a or fix a amount. in substance penalty, precise if the enough name, and character are immaterial. form, kind, statute, case, a penalty, particular operates when applied a man to a hear- fall with statute. Driving the rules of court must a only his will a tribunal weariness before such ing its though a in time flesh,” necessarily expense, but is penalty a court each case. Is not with the circumstances of may vary extent ? Can a jury of a constitutionally machinery part same sense, had, without trial, constitutional abolish its ? Can legislature duties discharge appropriate time court of law courts, make each constitutionally supreme whereby ? a law passed constitutionally Could chancery could the constitutional case, have decided the jury, present *16 v. SCOTT.

PERKINS dual include the questions raised ? Does not the right jury sense, they exist functions of court and ? In can a constitutional jury legisla- when ? Can the separated any more than the Siamese twins ture for ten say cannot a for two or jury have trial parties years ? do ? If they they directly Can do indirection what cannot trial, have the can fetter parties right to speedy jury vexation, that right by them with burdening the delay, expense legislature trial, another can ? before can If exercise right burden them them to one not send- by sending why inquisition, ing them to ten, or a ? is hundred Where the constitutional line are limits drawn—where to be fixed ? Though there are some which look the other way, seem to passages we are unable to make less of of the court opinions majority v. Nenniker than this: act is to be overthrown as Oopp referee but unconstitutional, the auditor is to be saved. the latter Against we protest. In a sense, constitutional it is than the more objectionable referee act. The which may be of trial exists class of causes auditors, if sent to has existence. penalties imposed the auditor delays act are distinct. The such trials are notorious. If either auditor,.he refuses to party go before forfeits his of trial jury, against a nonsuit or default goes him. If is plaintiff, he goes trial, and a is made report against him, three right: he must bear penalties the exercise of his imposed constitutional trial; must expenses he pay pen- alty of him; and, report against when gets make-w'eight must until it is report, follow over- thrown, defendant, is tied like a If he millstone to neck. is a him, is report adverse to he must bear the burden of the expense of a trial. He must go trial with a millstone in the hands other him weighting down, and, beaten, must the cost of pay the manufacture of the instrument of his destruction. But the consti- tution has confei'red no power by forcing delay or compel parties, otherwise, to their causes a court of try conciliation. That in- strument is bundle If a can farces. cause be sent such a court (as they have will of repeatedly been) both parties, or upon the motion of other, one party against will of the a penalty time money one both. necessarily imposed

Norris, for the plaintiffs. Is law, provision the auditor making report prima facie evidence to the ? jury, constitutional It is a beyond fact question, it has enforcement, been and for force, the most active part over half a century. It has been of accounts stated be- taking reports fore the all our lives Great long. lawyer’s grown have judges old and died here in its time. Courts remodelled, judiciaries overturned, and our General Statutes all twice revised. to our its stranger title but two them with reports, antedating lyii. VOL. *17 none came be and, questioned, in the of the until the referee law digests; constitu- it in conflict with the ever mistrusted profession been has to some extent too, tion. trial years, jury these During world of this its Amid losing the perversity progress prestige. liberties to save their ours, men have driven to various expedients worthy is one of them. is from Trial usurping tyrants. It. of re- mandatory a clause also, our remark, constitution contains town- convention, but enacted open

vision. It framed close seven every kind of birth its own a new on motion meetings, receiving “ from the speak from the same Constitutions years time town-meetings. auditor ? As the of their does ours from When speak adoption.” constitution, law has had the sanction of seven such re-adoptions “ it constitution,” thus into a of unwritten has itself sort grown “ acqui- as on of general be defended on that may ground, well escence because of its convenience.” practical com- statute, It odds this makes no whether be child provision bounds mon it not law, here, beyond or equity, provided go more Nor seem me to equity than common law. does of a testimony three five minutes’ making or prima facie It contrary. nature evidence of his in the absence of everything case varies with the may be said evidence of these reports con- or from, nearly quite cases tribunal clusive. emanates some becoming for testimony And so and may parties, does direction; in the same same reason. and other statutes tending We have them, com- court, no unless trust, we will disturb pioneer “ fetters of or by the defendant history. the clear pelled logic,” light Baker, But Francis v. a some derives comfort at case decided in Rhode Island. And first view case recently not for- seeming seems to stand in our but its obstructions way more modern midable. Rhode Island’s on the is much subject statute “ than ours, and so her constitution. It provides or remain inviolate.” It has no limita- qualification common law tion, was, in that whether the question no such had been violated. Here we right hence, question encounter claimed, in our way, all that is is not be- granting opinion our the road is still us to in under limitation. cause for come open But that than a choice decision is in terms on no put higher ground and the contin- followings long between recent one state opinion two others. We think it a choice made. ued practice poor at or no weight But it is to little most, best, choice, but a entitled authority. And when we turn to v. a forcible presenta- Somerset Plimpton ” “ “ on of their we find the theirs argument.” argument tion predicated much as to cause of ours, and, action, broader than statute akin here there. hardly all, nor at to the one germain, pending ; theirs, and vouchers Our action is on mutual with accounts dealings “ the one the book notes and checksand account, with divers highway.” from defective argument is made on, damages PERKINS SCOTT.

And many which, concedes that there are argument be had even in law, trial can custom the common ”; common-law the doctrine of courts Whitwell clearly recognizing “ an officer Willard, 1 Met. that an either’ law auditor or in too, made a divided over equity.” a decision was, dead its one case sole estate. statute.that left few and this friends, *18 Our by case tacit if objection, consent, went to auditor without not Island by in Rhode held that that agreement. Although difference, makes no think an consent to we that be- agreement go fore a tribunal for an agreement consent hearing ought imply all findings. submit to How else need the known effects of its there be on any till after adverse plea decision jurisdiction any ? the merits can cure ? or, a defects What general appearance are laws, court, laches in if take his one into the chances be- judgment? may come fore a of then arrest plead jurisdiction I Here that the perhaps plaintiff’s counsel ought stop, suggesting has a side, made able weakened very by on al- argument my perhaps it, lusions now then to or some members of by way “ suggestion.” really But his he aims at attack is a What are feint. ” “ prospective the referees, distinctions to run auditors between “ to made of use far as both go,” So he reports. says, “ so meaning, course, far as the two statutes together, oc- they go the same And there cupy ground.” far, So need be no so distinc- good. “ lurks, if tion on this where on ground,” anywhere, because ground “ do not Auditors state accounts go together. only between “ parties.” law, Referees triable aby decide causes by jury,” and “ before questions fact, law, by jury,” triable invading then, auditor’s distinction with Here, is a province. surely, difference. But even these or fall we together, go statutes must stand them We think both We believe in them both. neither of standing. them “ alarm the need best friend of trials. Except jury ” it has been heretofore be a may otherwise used practised pretty It exception. broad is itself evidence conclusive some such cases this, And existed. What counsel they were is the question. says, we bound to very are But prove. respectable there are authorities the “ way. other Acts of legal.” legislature prima Rich v. facie Flanders, 304; Jenner, 39 N. H. 10 Ind. 70. But the Lafayette ease, is well as our own burden settled proof here, just cited, says “ invalidity no statute will be unless its void, placed declared beyond “ “ all used By cases,” reasonable doubt.” practised,” is ; forms of meant found action and when procedure modes “case” is how was otherwise within the no matter used and exception, do for all the jury we with it as we right. practised, may “ please, And ” It begins of time. heretofore covers an indefinite space “ counsel, time constitution, and runs back to found when neither causes, trial civil for the really cared right except “ times,” from the And earliest relation to real estate.” lie says, “ references.” He is right. files the court swarm with So fairly over con- extended, far as has own examination went my first very has At the siderable not overstated the result. space, act then in an constitution, under our present session of legislature, ren- review, trial, one or new after giving judgment passed parties ” is courts, of referees dered in the various judgment report is the included. What these given judgment effect reports real and this to be answered question question light is pre- has the cited, authorities that an act of just legislation impeached re- and is the rule favor, innocence its to be tried sumption its moving nullity. reasonable doubt is on the Somerset, argument the whole based Plimpton is as the com- that their trial the same that of assumed, right to, mon law. in syllogism: right be tested ,act of state the same common law, is in ques- legislation unconstitutional: impairing therefore, tion, in so the cause applied question, impairs right: untrue, the it is Either far, unconstitutional. premise proving Our bill here. conclusion fails. claims Nobody major be true authority here notion, excludes that hence that case rights *19 it, bench, retiring and most of that then great light just likely hesi- decision, in who made the but took no ruling part proforma “ de- to a good on the same for he confesses premise; private, tated gree if of latitude, legisla- of defining not of liberality, powers not, tion over what shall be tried and what ones argument what limits to such trials be With us the may imposed.” are of to right stands: certain forms of action entitled tested that effect a has And this is void: act denying right given

jury, hence, forth, puts in a far the act is void. given case: so . “ “ river sea test brother’s question, my us out to on the historical — “ much floods,” its must left time,” pretty be of ebbs —which wind court for Nor need take the risk either navigation. to the we validity of the tide in such a even voyage, presumption this surface of is found on shore client is Enough our impaired. “ our us on troubles,” aided of the to put sea spirit age, reform. ofway legal any stumbling-blocks against casting guard “ be held shall are reminded of procedure We method idolati’y; into taken run Granted. But care must be lest sacred.” who to ought legislation construe organic because one ordinary good the public to the such laws as hobby Making work. rides legislature. is a that this bill of on require” duty rights enjoins eyes face and in the magnified, one claims officeis to be No the we together; trial. Both are to be construed right fed the expense to insist be right that one shall a liberal con- if other, and that shall occasion have each, be, need struction. and, advance, each stage Both statutes under consideration worked trial, has had a long direction. One think, we or a well; millstone, life-preserver, the other turn out a whether about to solved litigants, the neck is a question probation legislative and not discretion, construction. judicial do set Cushing, C. J. I not think this to be aside. ought report The affidavits as to together satisfy any objection taken do not me interest or is furnish to ought bias made out winch to reason the party I recusing ought auditor. Neither do think that the be set report law, called, aside on the that the auditor so is unconstitutional. I understand statute be, part that that which objection makes the the auditor evidence be used before the report is in violation a trial by of the constitutional This party’s jury. is is provision an of the statute. It to dis- integral part impossible pense with and leave send- provision, provides part ing causes to auditors with the and force which the meaning legisla- ture intended it. If the auditor’s to the give go cannot report the. court cannot send case to auditor. This taken, I think it clear that the being so, must be if at objection all, at the time reference. The cannot be permitted lie take his chance of getting it then, a favorable report, is not it, satisfied with cause to be rejected. I also hold, for reasons assigned my dissenting opinion King Hillsborough term, 1876, June Hopkins, law not unconstitutional. Ladd, J. The historical researches defendant’s counsel ap- pear leave our information with origin the auditor respect law in this statute, state about where it was As a before. its first ap- pearance, so far now was in 1823 and was appears, then enacted in pursuance of the recommendation Bell, of Governor his message of the year before, that on this the law amended.” subject is conjectured that there kind was some statute on the subject lost; existence at that time, which now and it is said that the *20 language gives used Governor Bell countenance to that conjecture. It has also been that Bell referred to the conjectured Governor com- mon law, and the of and practice the courts thereunder: the failure to find any prior statute, either published may or unpublished, thought to give countenance Further examination set- conjecture. tle the matter or far way one the as but, regards question other so the raised in case, this do not it makes any great I see that difference which that in act of 1823 supposition It certain the no adopted. allusion is of statute, made to and the an auditor report prior has always that time admissible as for since been evidence the legally jury to consider in cases its terms. coming within If there was or such statute either before soon prior passed after the if it would furnish almost not constitution, quite conclusive evi- dence the of trial matters of right arising account suits at law, all, was understood not to exist at or only either exist in this modified form. If should statute, naturally there was no we PERKINS SCOTT. to find courts, next turn the of practice expecting our attention to the is,

there construction. the same kind of evidence—that contemporaneous found, if as the defendant’s Rut no and statute no are to be practice other look to some hold, then,' course, counsel quarter of must seems we dark. for or else decide the light, question the maintains that on who might one, be said that it is incumbent mat trial, involving in causes allowed qualified jury by the constitution, trial of the ters to show that a is an of the account, jury infringement and untrammelled in such cases, trial unqualified evidence, was mat the should be that the auditor’s provision report constitution. ter of the of the absolute the time of adoption of the majority But at this we views point are confronted the ; and it is N. H. 179 Henniker, expressed Copp state said that the the history of province jurisprudence “ used and only practised” fails to show that a uniformly show, does constitution, or but any case class of cases before hand, upshot the other true. affirmatively, contrary that the it, only show not I understand argument, being but untenable, defendant’s claim utterly groundless in this case is wrong, that the v. Henniker were court in majority Copp cases that there broad, same reason single, sweeping have use in which trial be said to by jury sort can the solemn so to which constitution, no cases practice mandate of that shall be kept instrument enjoining sacred could be applied. court; out of It seems himself clear that the defendant quite argues was no class of if, our there history, during period provincial matter legal in which claimed as civil cases a trial could be somebody it must follow that right, omnipotent grace whenever —the council, governor provincial legislature, judicial such char- be of might just the court—such trial was acter and that trial granted, as might such and characteristics attributes possessed just caprice by whose those interest, be dictated opinion, constitution, by favor was allowed. And that so before being sobe after- continue to instrument would express language establish, when grant wards undertook to legislature egregiously so any case, a right which framers constitution form, fix, subject it in such failed might, course, just give burdens, just restrictions, penalties, limitations, fit. saw 1792, under we

The constitution of as well as that of “In live, concerning property, now controversies provides which it in all suits between two or except more persons, has been otherwise practised, parties heretofore used *21 shall be held to trial and this method of procedure as relate to sacred, and such unless, arising high seas, on the hereafter necessary shall think it wages, mariners’ the legislature that to show it.” Bill Art. 20. A argument alter of serious Rights, of means solemn declaration our it rights something bill —that declamation, is not a mere of without high-sounding piece turgid state, force law for as the of the effect reason supreme when it no cases it had was uttered there were which not been there- thought tofore otherwise used doubtless be novel practised—will But, unless defendant’s is to be production. decided against him which taken has argument, urged counsel, us necessary seems notice the some- briefly based. what on which that startling proposition argument think, It I may assumed, those who safely drew up the constitution entertained the honest belief that adopted placing they were that instrument than well something'more rounded period With the empty verbiage. judicial history before the mother country them, for the last and a with all half century details of the fierce and between protracted struggle people Masonian minds, fresh their with the eloquent and almost proprietors of Sir Bl. William Blackstone Com. poetical panegyric (3 then 379), world, ears, it is lately given to the their ringing reasonable to be- lieve that were stimulated secure to purpose people interference or state, beyond legislative control, the benefits and system the great commentator so advantages brilliantly and to and their themselves protect posterity portrayed; evils against the and mischiefs which admonished them history sure follow an infringement right. assumed, I may be was an suppose, established right British before the earliest subjects long settlement of this state. Mr. Einlason It is that it is the probable most says, ancient part —“ most deeply our our constitution, consequently rooted in ear- Hist, Note to 3 Reeves’s liest institutions.” English Law In Plymouth of the council of the charter (November 1620), was “ All who inhabit in persons said may go colony, and provided their all the children, shall have liberties free- denizens and natural subjects, as if born and In residing England.” the grant by the and Mason, of what was Plymouth Gorges council called the prov- 1622), carefully ince Maine follows: And covenant inserted, as (August Sr. said Eerdinando Gorges John Mason Oapt. them, heyres assigns, doe further covenant will in the said lands and government porcons establish granted shall be realme islands them, and same will from time to time continue, unto as as as to the laws and may be, neere agreeable, customs of New grant England.” Hampshire the same 7, 1629) said to Mason John (November council Mason doth him, his heirs assigns, further covenant he will establish said of lands and islands portion granted such government unto continue, will from time time him, agree- the same shall be be, to the laws customs of able, near as the realm of Eng- Cutts, John first president land.” In the commission to (September some after minuteness detail the prescribing 1679), duties *22 80 PERKINS v. SCOTT. find we record,” of tlie and council as a “setled Court of president “ cases, judg this : and So forms of in such always y*ye ye proceeding Laws

ment to be as to ye be consonant and thereupon given, agreeable and of this Our Realm and condition Statutes of as state Engd, y6 prent our circum aforesaid, of within limits and inhabiting ye ye subjects em commission, was Cranfield, stances of will admit.” his ye place by “ erect, many and courts constitute, establish such and so powered of and and judicature plantation within the said public justice, province necessary your within as and think fit and you shall government, civil, as causes, for the of all as determining and well criminal hearing 25, 876, N. 437. 9,14, law and 1 H. Prov. according Pap. equity.” was, guaran the Masonian further litigation that perhaps, suggested events, in the with ties of trial At all right respect by jury. Enacted act 1692 find this And it further judiciary of we section : Be shall be aforesaid, the That no of by Authority Right property persons of fact of the aforesaid courts matters determined, where by Except acknowledged, are either or acknowledged by parties, judgment unless answer, fault for want by defendant’s passeth plea be found Yerdict of of the by neighborhood, the fault it Twelve men Law.” This observed ought Right by act, Copp to be N. H. Henniker, substantially by judiciary reenacted in force clause, which contained no and remained act repealing revolution, until and was reenacted substantially in 1785. again object in direct One of the injuries usurpations, having which was States,” tyranny of an absolute over these establishment charged Third Independence, George by Declaration for- with others to us to was, jurisdiction He has combined subject laws : giving to our our Constitution, unacknowledged eign '* * * Eor : depriving assent to their acts of pretended legislation benefits of trial us, many cases, by jury.” of the It will be contended that when the framers constitution hardly used prac- of cases which it been theretofore otherwise spoke tised, they been despoiled meant cases where the had theretofore subject king nor of the and tyranny deprived right by usurpation cases meant where reason be claimed that any greater can royal governor, had been lost usurpation the right incapacity, or the legislature, ignorance, interference or the provincial except They clearly of the courts. meant corruption and practised, it had been theretofore otherwise used which legally in plain in which it had been otherwise used practised not those violation of the citi- law, defiance of the derogation constitution, and him the British as established and secured to zen, defined laid down and provincial plainly the defend- industry irregularities usurpations, law municipal in the administration of the counsel lias discovered ant’s conclusion that do not lead mind my the province, constitution, any case, guaranteed, more than the Declaration of tyranny denounced usurpations king, If a pro- lead the same conclusion. Independence, vincial be no imme- functions, there legislature might usurped judicial diate at hand but would not remedy repeal usurpation *23 1692, the act of to surren- and the any never showed disposition people der the right act, stronger secured to them that as well as guaranties which inheritance law, the common theirs both was by charter.

This is this show, think, as I that the court cannot decide enough question against the defendant that the constitution does not in trial case. really absolutely any secure right jury is, is, then in question whether matters of account—that which come within law of 1823—a the terms the auditor was the use and constitution. legal before the practice There are : that first, two which will not things be denied probably long before the of the constitution and ad adoption the investigation justment accounts had come to be matter of well understood and, admitted equity second, of Mars jurisdiction that until the case ton v. Brackett, 9 N. H. in 1838, decided it had not been intimated this in state, else, anywhere that there was a of trial right in equity I venture to that if ex proceedings. say right «ever isted in state, this it was after and not before the observation of Chief- Justice Parker in that take, case. It is not in I the view necessary, to inquire whether that observation established such a. singular anomalous doctrine this state or not. It is to that enough up time all the books and cases, wherever the common law prevails, the other way. It adds very little to the one argument, way see, other, so far as I can whether in fact any court ever ex provincial ercised chancery use of forms of powers, making usually proceeding for that employed this purpose England, latterly country. Nor does it to be of appear much Bell was Judge whether consequence said, when he N. H. Pierce, Wells 27 as Equity, a great branch of .the law their over country, brought native was the broadest and has colonists, always existed as law in its the common part sense New and that the act of es Hampshire; tablishing repealed governor council a court of never high chancery, ; or whether Governor when, thirty-two years Bell was right, before, in to the message legislature, quoted made the remark v. Henniker, Our p. 211, viz., ancestors, who Copp adopted the laws general as the country which originated basis of code, omitted to introduce into practice part system which at some pertains chancery jurisdiction.” Suppose, period after adoption the act of constitution, and before court, conferring general equity powers upon supreme legislature court a branch of given equity to the isolated single jurisdiction specific that of decreeing power, as, example, — contracts, performance chancery by without it a court of creating name, chancery without of the forms of pro- providing any PERKINS SCOTT. see done, should I do ceedings be : if such a observed thing

how it can be make such might provisions, doubted that legislature with the relief to the mode of the facts respect settling trial were if a sought and, think depended, might proper limitations provided, tidal to such might granted, subject qualifications as to them and just. appeared expedient whether it make what could difference supposed, had ever equity of a contract power enforce the specific performance state, be- or the exercised tribunal, province either fore or not in the province ? If it nor never used practised power before tion true form, applica- constitution in then determine in the bill used terms “heretofore used and practised,” the new rights, we must to the common law go respect and in a case it not power conferred; thus we find and, that, doing constitu- which it had anywhere been used and practised does not tion, to Why as matter of right. trial by jury legal accounts auditor law ? The investigation reasoning apply *24 did was a trial by jury branch of in which a of right equity jurisdiction in such not exist. for a jury When the made legislature provision of character cases, could fix and determine the why not it should be limitations and under what upon what conditions trial — had, as as in ? well the case supposed other correct; is this view probably is not of demonstration that capable but I think it is the by long acquiescence strengthened greatly the bar of auditor member any living law. Without disparagement the in upon directed state, legal scrutiny it that the be said must early auditor and in its operation, law at its first appearance, referee the have that which met been with equally searching acute and has law trial by jury of of which the right jealousy more any in this state increased watched has not guarded than in half century. for the past other law world of the common parts Unless auditor’s report law, making prima in that provision familiar, that was some evidence to the stood upon jury, fade it seems in- of lawyers, admitted to that by generation be sufficient unchallenged. to pass conceivable that it should been permitted “ That when a constitution provision, of Vermont contains in a a joined issue fact, jury, cognizance for the proper ought court which by trial an law, right have a parties state, that held statute By early sacred.” Part Art. 12. to the action minute and with reference made detailed provisions defendant if the court, entry account. such action Upon the to ac- true, ought shall which, being plead defence plea be found verdict count, and if the may be tried aby jury; confess him, he or, or if appearing, the defendant shall not appear, shall render judgment to account ought with the plaintiff, rendered, account shall be he do account. When judgment to men and disinterested the court shall or more judicious one appoint Then the parties. accounts between hear, examine, adjust a provides notices, rendi- hearing, &c., report, for return cause be shown to court, tion of no by just thereon judgment There shall be final between the contrary parties. which judgment cases, of whether no trial in such except question I am not able the to learn witli the defendant is liable to account plaintiff'; has been questioned. the act ever constitutionality found But similar to those law, very when reference with provisions that state legislature our act was passed hesitation, its without denied, and the validity immediately declared it with that clause the constitution to be conflict I 33 Vt. 283. This would seem Somerset, have quoted. Plimpton to that here— very existing show state of Vermont similar things that is to obtuseness on the of the say, early either extraordinary part acuteness on the of the lawyers state, extraordinary part or ones; later con- of account never came within the else that matters stitutional for the reason I have some supposed, either provision, other reason known to sufficient interpreters which was early constitution. It is in this view that deem the acquiescence, more than half in auditor law entitled to century, weight great this case. It fortifies determining my question presented constitution, that it opinion was not understood framers successors, or immediate there was ever an contemporaries, account; absolute of trial and that being matters by jury so, when such a in of the of of given coming report an auditor, within the most it would be discretion clearly power the trial to their views of what the legislature according shape ; and burden it with public so the condition good required they might should the trial be used evidence before the report jury. I Upon whole, am means satisfied beyond reasonable *25 doubt that in right was in 1792 a to trial that class there legal by jury of cases which within the auditor and I law, come the operation therefore hold below, that the of the court the ruling admitting report in this case as in evidence accordance with jury, provisions of that must sustained. law, be As to law, whether that the court to send cer- part empowering tain cases to an auditor, sustained, making could be provided part constitution, in with the need not be report evidence were conflict first, : is not raised inquired, two reasons question second, law is the court are that the whole to be sustained. agreed No I question us, of waiver before as understand the case. Doubt- trial, constitutional many less the a like other right jury privileges individuals, maybe waived. affecting rights private property one, I should may say, however, I, holding hesitate a and constrained citizen, silently merely by yielding temporary himself from statute, thereby obedience to an unconstitutional debars in law for the vindication his question validity calling violated to hold not unreasonable that a rights. would perhaps 84 moving his cause be sent to an auditor, thereby signifies

willingness accept qualified the statute permitted after the in of a But coming case, as this is not in the report. question need not subject be pursued. Smith, J. The framers of XX in in Art. constitution, asserting of the Bill of of trial Rights in cases by jury, except it has been heretofore used and clearly otherwise practised,” recognized there trial by were one more classes of cases in which could demanded as matter of is no doubt right. There that at common law there many cases which a trial by jury not bo had. could The law in undoubtedly, relation to auditors extent, some grew out of actions of account, of suits took the place in relation equity to such To matters. what extent the practice obtained this state of actions matters of account trying involving without a it is not jury, to establish. But I am satisfied easy exactly that the causes included within the of the auditor law are provisions also included within Art. XX of Bill of exception Rights. It is difficult otherwise understand how such a law could exist upon the statute-book of the state for more than half century without its constitutionality it That was not drawn being questioned. question until the act of controversy regard com- authorizing references pulsory arose, of what very strong affords evidence has been tional practical as to the constitu- understanding profession so, to enact such a law. If this be then legislature the legislature, when it enacted the statute of 1823 in relation to auditors, might have without the intervention of judgment authorized and, under no being constitutional compulsion give trial, when gave could be with such condi- gratuity coupled itas saw tions fit to impose. held, We N. H. it is too late to ques Doyle Doyle, tion the law, of this and the discussion and further constitutionality examination this case have satisfied me of only the correctness holding. As we hold the law to be is no to dis- there occasion constitutional, cuss the question of waiver. overruled.

Exceptions