King v. Hopkins

I find it impossible to agree with the opinions expressed by the majority of the court in this case, and I propose to indicate, as briefly as possible, the reasons of my dissent, and the authorities on which they rest.

The statute under consideration makes it the duty of the courts to commit to referees certain actions of certain specified classes, and provides that the report of the referees made in such a case shall be evidence to be laid before a jury; and it is objected, that a provision for thus submitting the report to the jury on the trial of a case, impairs the right of trial by jury as guaranteed by the constitution.

Art. 20 in the Bill of Rights is in the following words: "In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practised, the parties have a right to trial by jury; and this method of procedure shall be held sacred, unless, in cases arising on the high seas and such as relate to mariners' wages, the legislature shall think it necessary hereafter to alter it."

By the law under consideration, it is provided that the report of the referee "shall be evidence of all the facts stated therein, subject to be impeached by either party." It is this provision which, as I understand the matter, is objected to as being in conflict with the section above cited from the Bill of Rights; and the court is called upon to adjudge the statute, so far as dependent upon this clause, to be in conflict with the constitution, and therefore void.

The constitution is undoubtedly the supreme law of the state. It is the duty of this court to expound that law, and so to expound the statute law as that it shall not conflict with the supreme law.

Doubtless it may be, and sometimes is, necessary to declare a statute or a portion of it to be void. It is, however, I think, a universal principle, that statutes are not to be declared void by the court except in cases of plain and absolute necessity.

In the words of SARGENT, C. J., — "While it is nowhere denied that in a limited government like ours, acting under a written constitution irrepealable except by the people themselves, and which imposes many restraints upon the power of the legislature and in which the judiciary is made a coordinate and independent branch of the government, the court have the power to declare the acts of the legislature void; and it may become their imperative duty to do so, in the faithful exercise of their constitutional powers and discharge of their duties, yet, when called upon to pronounce an act of legislation passed with all the forms and solemnities requisite to give it the force of law, invalid and void in consequence of its conflicting with some constitutional provision, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and will never declare a statute void unless the nullity and invalidity of the act are placed, in their judgment, beyond all reasonable doubt." Rich v. Flanders, 39 N.H. 304.

"In the case of Morrison v. Springer, 15 Ia. 304, the court held that it "will declare a law unconstitutional only when it is clearly, palpably, and plainly inconsistent with the provisions of that instrument;" and Mr. Justice WRIGHT, in his opinion in that case, cites a long list of authorities in support of the rule announced. Stewart v. Supervisors of Polk County, 1 Am. R. 242 (Ia.); Pickering v. Pickering, 19 N.H. 391.

The question is emphatically one of New Hampshire law. It is the constitution of New Hampshire that we are seeking to understand and interpret, and it is to the traditions and decisions of the fathers in this law that we must, in the first instance, look for the light which is to guide us.

In order to determine whether or not the use of the report of the auditor or the referee impairs the right of jury trial as in use prior to 1783, it will be necessary to consider what is the effect given by our law to the report of an auditor or referee when used before the jury. The statutory provisions in regard to auditors and referees being the same, the decisions under one law in regard to this matter may very properly be applied to the other.

By the terms of the statute the report is to be laid before the jury as evidence subject; to be impeached by either party. In the case of Bellows v. Wood, 18 N.H. 305, it was held that the report could not be impeached by showing that it was founded on the evidence of a particular witness, nor by showing that there was not a full hearing before the auditor, nor by showing that the auditor did not give much attention to it. In other words, it is not admissible to impeach or sustain the report by testimony tending to show its weight as an instrument of evidence. Drew v. Claggett,39 N.H. 431; Shouter v. Swindles, 37 N.H. 559. This decision of our court is evidently of the soundest. It is impossible to weigh a report as evidence, as the weight of testimony can be weighed, or to determine whether more or less credit can be given to it. If it were admissible to take into consideration the character of the auditor and the value of has judgment when known to the jury, it would be equally so to make these circumstances known to the jury by evidence when the auditor was unknown to the jury. A moment's consideration is enough to make apparent the utter impossibility to weigh a report as evidence or to show that it is entitled to more or less credit. It is, I think, impossible to sustain such a construction as this.

The attempt to treat a report as evidence to he weighed by the jury differs, in no degree that I can perceive, from the attempt to treat a former verdict of a jury in the same way. The absurdity of this attempt is admirably exposed by PARKER, C. J., in King v. Chase, 15 N.H. 9. Every word of that learned judge in that case applies to the case of one of these reports. "There are cases which hold that it, — i. e., a verdict, — may be evidence between the parties when offered as a bar, but not conclusive evidence. See Doug. 517 — Kinnersley v. Orpe. But this cannot be supported upon principle. The operation of such a rule would be to authorize the introduction of the verdict of one jury in evidence, not to show that the matter in question had been tried and settled, but to influence the minds of a jury, having a similar question before them, to find the fact in the same way that the former jury found it, — upon the with that the first jury were capable, and duly investigated the subject upon competent proofs, and therefore probably found the fact correctly. It is quite evident that the weight to be given to it in that view is entirely uncertain. In order to understand its true value, and the weight which ought to be given to it in establishing the matter in question and upon trial, the capacity of former jurors should be shown, and the manner of the trial, that it may appear how distinctly the proofs themselves and the arguments used on the former trial should also be shown; for otherwise the second jury could not know whether the case was fully considered. And to all these there should be added a statement of the grounds upon which the former jury proceeded in making up their verdict."

It is commonly said, in practice, that the auditor's report is prima facie evidence of the facts properly contained in it. The term prima facie is somewhat ambiguous. In practice before juries, it is often said that the party has made out a prima facie case when he has offered evidence which, if the jury believe it, entitles him to a verdict. It is plain that this cannot be the construction of the statute, because if the report is not in some way impeached, it stands, and the jury is bound by it.

Sometimes the term prima facie evidence is used in the sense of a presumption of fact, i. e., when a certain state of facts is to be assumed without proof, but which is open to be disproved. It has been well said that the term presumption is used in its literal sense of assuming a fact to exist without proof. It very often happens that states of fact are found to exist in which even-handed justice requires that other states of fact should be assumed to exist. Sometimes convenience requires the same thing; but always presumptions are almost as likely to be contrary to the fact as consistent with it. Sometimes justice and convenience permit these presumptions to be rebutted, that is, the facts which are assumed without proof to be disproved. These are called presumptions of fact; and I think that, strictly speaking prima facie evidence is that evidence which raises a presumption of fact which binds the jury, and throws the burden of proof upon the party against whom it is made.

Other presumptions, sometimes called presumptions of law, are such as cannot be rebutted, and which the party against whom they arise is not permitted to deny by proof. They are substantially cases of estoppel, the technical difference being that estoppel is a term of pleading. A man is estopped when he is not permitted to aver a fact in pleading. A presumption of law is an assumed state of facts which he is not permitted to disprove by evidence. In the old days, when the pleadings were ore tenus, and the party was obliged to state in open court, at his peril, the facts, on the truth of which he was willing to place the merits of his case, the estoppel, literally, as its meaning imports, stopped his mouth. He was not permitted to aver such facts in court, by way of making up the issue for trial.

It is, I think, precisely in the sense of a presumption of fact that our statute makes the report evidence subject to be impeached. It establishes the facts found in it, not as evidence which the jury can weigh, but as a state of facts which is to be taken to exist until the contrary is proved, but in regard to which the report cannot be weighed either for or against the conclusion.

In other words, it simply has the effect of a pleading in determining the burden of proof.

This is, I believe, all that can be made of the auditors' or referees' report as an instrument of evidence before the jury. Ever since the beginning of jury trials they have been always intimately connected with the system of pleading. The whole theory of jury trials from the beginning assumes that issues are to be made up originally oral, and afterward written, prepared before the trial, and reducing the matter as far as possible to the trial of single facts involved in each issue. Historically speaking, we are entitled to ask when it has been known, in the history of jury trials, that this whole matter of determining the order of the trial, the rules of pleading and the forms of issues, and the admissibility and effect of evidence, has not been within the control of the law-making power.

It has been said that the jury trial intended by the constitution must have been the jury trial as it existed in 1792 — not the jury trial that existed in 1783, and was kept sacred by that constitution until '92, but the jury trial as it existed in '92. If, however, the constitution of '83 was faithfully observed, the jury trial, which was rendered sacred by that instrument, must have remained sacred till '92.

Now, when we speak of the historical jury trial as it was in 1783, it seems to me sufficiently certain that by that term we are not to understand a form of trial literally cast in a mould, and so hardened that it could never again be, in any respect, changed to meet the wants of changing times. The jury trial of 1783 was and must have been a jury trial such as was then used and practised, that is, a jury trial subject to be changed and modified from time to time by legislation, as circumstances required.

I believe, too, that in our practice the authority of the English courts was always appealed to in all matters relating to trial by jury, as it was in most other matters of common law. I think that all examination of our reports will show that always we have received the reports of the cases in the English courts before and even since the Revolution as authoritative expositions of our law on this subject.

What then was the jury trial, as used and practised in the province of New Hampshire about the time of the Revolution? Undoubtedly it was a trial before a jury of twelve men whose verdict must be unanimous. It was a trial of issues of fact formed by the process of pleading, and made up according to the rules of that science. It was a trial of issues which had been made up by compelling the parties to put upon the record at their peril the facts on which they were willing to trust their case. It was a trial in which everything which the parties knew being theoretically elicited by the pleadings, their testimony, and the testimony of interested witnesses, was most rigorously excluded. By this system; in very many cases, the defendant could not offer proof of the matters on which his defence rested, without first admitting on the record the truth of everything alleged in the declaration. It is true, that before 1783 parliament had undertaken to interfere with the arrangement of issues for the jury trial by the statute of Anne, as it is called, which authorized double pleading. By enacting that the defendants at the same time might plead more than one plea, the legislature enabled him to compel the plaintiff to go forward in the first instance and make out his case, although it was really not intended to deny this case, but the real defence was to begin by admitting it; — that is, the legislature at that day assumed to regulate the burthen of proof by imposing upon the plaintiff the burthen of making out his prima facie case, as it was sometimes called, before he was permitted to put the defendant to prove his answer. It was an incident to jury trials before 1783 that the law-making power might in this way assume to regulate and arrange the burden of proof. This system of pleading had a material effect upon the arrangement of the burthen of proof, and oftentimes must have given one party or the other great advantage by relieving him from the necessity of making proof of matters which might be exceedingly difficult to prove.

But double pleading was never carried beyond the plea. When the plaintiff came to reply, he must meet each plea by a single replication, selecting at his peril that one answer which he was willing to rely upon. So, the rejoinder to each replication must be single. Such was the jury trial of 1783. Bacon's Ab., Pleas, K. 3; Warren v. Joice, 2 Str. 908.

It was clearly a jury trial in regard to which historically the legislature had assumed and exercised the power to change and regulate in a most material manner the burthen of proof. When the statute of Anne was first passed, the "leave of court," always inserted in the pleas after the first, was not a matter form. Quite a number of cases will be found in Barnes's Notes, in which the leave of court was refused; but I think that as early as 1783 the practice had become settled by which almost every case the defendant pleaded at his pleasure any number of pleas, inconsistent with each other or not, each plea being considered to stand independently of the others, and the confessions in one plea having no effect upon the denials in the others.

The case of Carpenter v. Bailey, 53 N.H. 590 — 56 N.H. 283 — is a good illustration of the effect of the statute, permitting double pleading, upon the plaintiff's rights.

In that action, as is apparent from the history of it in the reported cases cited above, there was really no controversy about the fact of the publication complained of, but the only real controversy was as to its justification. By the system of jury trials, pure and simple, as it stood before the statute of Anne, the defendant must have confessed the publication, and avoided the effect as well as he could by selecting from all his matter of defence that one which he thought most reliable. In fact, however, he was allowed to put upon the plaintiff the burthen of making out his case in the first instance, and when the plaintiff applied at the proper national repository for the original paper it could not be found and the plaintiff certainly was in peril of being defeated by the simple fact that, under what may be called the new system, he was required to prove an allegation, the truth of which in fact never ought to have been in dispute; that is, the plaintiff, by a legislative alteration of the constitution of the jury trial, was put to assume a burthen which otherwise would not have rested upon him.

This alteration was made by the law-making power before the year 1788, and was such a kind of legislation as the right of jury trial was before that time subjected to.

In 1824 the legislature of New Hampshire acted in the same direction, and passed the auditor law, by which the determination of the points in dispute, the making up the issues for a jury trial, and arranging the burthen of proof, was effected by the intervention of an auditor.

The right of the legislature to effect this by the auditor has never, so far as I know, been questioned. The courts have not only sustained it, but also have given to it a construction which, in point of fact, draws to the auditor's jurisdiction nearly all issues of fact which may arise in a suit involving the investigation of accounts and the examination of vouchers.

In the cases of Putnam v. Goodall, 31 N.H. 419, Ford v. Porter Rolfe,32 N.H. 376, Jones v. Parker, 26 N.H. 20, King v. Hutchins, 28 N.H. 561, and Brewer v. Hyndman, 18 N.H. 9, it was held that whenever a case involves the investigation of accounts or the examination of vouchers, that fact draws to the auditor's jurisdiction the trial of all questions of fact involved, and, if I can understand those cases, I can conceive of hardly any question of fact which might not be drawn to trial before an auditor.

It appears to me that if these cases are law, they conclusively settle the question so far as authority is concerned.

If the court had held that the reference of such issues of fact to an auditor impaired the right of jury trial it must either have sent the accounts alone to the auditor, or refused to send any part of the case to him.

It no more impairs the right of jury trial to send a matter of fact to a referee when there is no accounting made necessary by the writ, than it does to send such an issue of fact when there is an accounting called for in the writ. I think the court could not possibly have held as they held in those cases, without holding that the legislature had the power to refer issues of fact to the auditor, even if there are no matters of account.

Those who deny the constitutionality of the referee law, but admit that of the auditor law, sometimes find the origin of the latter in the old action of account; but a short consideration will show how untenable is this position. The old common law action of account appears to have been always in force in Massachusetts and in New Hampshire. Our early books of American precedents, so far as I have seen them, contain precedents of declarations and pleas in this action. The action was not general in its application, but was used only in those cases where at common law, or by virtue of a contract, the party was bound to account in this way. The forms of pleadings in "Story's Pleadings" abundantly prove that the defendant might always traverse the allegations on which his liability to account depended. There were certain classes of cases in which, by virtue of the defendant's contract, or by the nature of his employment, and I think some cases of torts (e. g., disseizin), in which it was a matter of right at common law that the plaintiff should have the account taken in this form of action. But, as I have said, the defendant was not bound to submit to this accounting until the question of his liability so to do had been tried by the jury; — in other words, the right of trial by jury was preserved as sacred in this form of action as in any other. Besides, the auditor's judgment in this action was, as I understand, not conclusive, or even prima facie evidence. In Bacon's Ab., Accompt, F., it is said, — "If either of the parties before the auditors think they do him injustice, they may apply to the court, and if the defendant denies any article, or demurs to any demand, it is to be tried and determined in court."

I suppose the trial of any disputed fact in court involves a trial by jury without reference to any report, so that our statute finds no authority or precedent in this old action. The diligence and learning of counsel have not, that I know, suggested any other tribunal known by the name of auditor, or auditors, which was in use in any common law proceeding since the adoption of the present constitution.

Others find the source of the constitutionality of the auditor law in the chancery jurisdiction in matters of account. They suppose that the whole system of chancery law has always been in force in New Hampshire, and that the legislature while resisting, as I think they undoubtedly did, the introduction of any part of the chancery jurisdiction by that name, in point of fact did, as it were, surreptitiously introduce that particular jurisdiction under the guise of the auditor law.

I do not think that the cases sustain this view. In Wells v. Pierce,27 N.H. 7, it is said by BELL, J., that "the jurisdiction conferred on this court [that is, the superior court], in 1832, was as broad as equity itself." In Parsons v. Parsons, 9 N.H. 309, the court denied a remedy which was admitted to be according to the course of proceedings in equity, because it was not one of the chancery powers enumerated in the act of 1832, holding distinctly that the equity powers of the court at that time were statutory and limited.

So, in Dover v. Portsmouth Bridge, 17 N.H. 200, a case which, though decided earlier, was not actually reported until nine years after the report in Wells v. Pierce, Chief-Justice PARKER reiterates the assertion that the chancery jurisdiction of that court under the statute of 1832 was statutory and limited, and not general.

So that there is much authority, certainly, for the view which my slight historical research has led me to, that chancery jurisdiction in this state has been the product of legislation, and always subordinated to the constitution of 1792. And I think that the court in administering these powers would not so steadily have maintained the right of the parties to a jury trial had they understood that the system of chancery practice was a part of the existing law of New Hampshire, so that the chancery power given would carry with it all chancery practice. Marston v. Brackett, 9 N.H. 336; Tebbetts v. Perkins, 20 N.H. 275; Dodge v. Greenwood, 12 N.H. 573; Hoitt v. Burleigh, 18 N.H. 359.

The jurisdiction in chancery is in many respects essentially different from the jurisdiction of the auditor under our statute, and much less extensive. By our statutes as construed by our courts, all cases may be referred to auditors in which an investigation of accounts or an examination of vouchers is necessary, and it is held that such a reference carries with it the trial of other questions of fact clearly of common law jurisdiction; whereas, the equity jurisdiction in matters of account is confined mainly to matters strictly of chancery jurisdiction, either generally or for the sake of discovery. 1 Story Eq. Jur., ch. 8; — and, also, see particularly Phillips v. Phillips, 9 Hare 471 — S.C., 12 Eng. L. E. 259 — in which the learned Vice-Chancellor TURNER expresses himself very distinctly.

Here, then, we have a distinct assertion made by the legislature, and acquiesced in by the profession, and sanctioned by judicial decisions for a period of over fifty years, or authority to provide by legislation for making up the issues for jury trials, and regulating and sometimes shifting the burden of proof by the intervention of a trial before an auditor.

In the case of Hoitt v. Burleigh, 18 N.H. 389, it was declared that "a party to a bill in equity has a constitutional right to require a trial by jury of a contested matter of fact, if he asserts that right at the proper stage of the cause;" and in the same case an order was made "that issues be made up by the court to be tried by the jury, that the answer of the defendant, Burleigh, may be used in evidence in the same manner that it would be evidence in a hearing before the court," c.

It is familiar law, that, according to the equity practice of that day, the answer of the defendant to any matter distinctly charged in the bill was not merely prima facie evidence, but conclusive, unless met and overcome by something more than the evidence of a single witness. This and the other above cited cases prove that the court, while holding under the act of 1832 that the legislature had not power under the constitution to deprive a party in a chancery suit of a trial by jury, held also that the legislature could clothe the court with power to regulate the making up of the issues, the evidence to be admitted at the trial, and the burthen of proof. It is a distinct admission and assertion of the right and power of the legislature to control these matters as extensively as is involved in the auditor and reference laws.

In 1831 was enacted the statute permitting brief statements to be substituted for pleas. This statute at once scattered to the four winds what had been down to that time considered the essential elements and indispensable safeguards of the jury trial, viz., issues of fact presenting to the jury single points. The defendant huddles into his brief statement all the matters of avoidance which he desires to prove, and the plaintiff, without filing any replication, meets the matter in the brief statement by such evidence as he can. There can be no doubt that the introduction of the brief statement instead of the special plea changed materially the rights of the plaintiff, as secured to him by the jury trial of 1792. The general issue denying everything contained in the declaration, practically deprived the plaintiff of all benefit which he before derived from the confession which the defendant was obliged to put upon the record before he was allowed to avoid the charges in the declaration.

The next innovation was the statute by which the plaintiff was allowed to make any number of replications to each plea of the defendant. By the law of 1847, ch. 307, it was provided that the plaintiff might, as matter of right, file in answer to any plea of the defendant any number of replications. The effect of this was to impose upon the defendant the burthen of proving facts more or less, which, as the law stood before, he could not have been called upon to prove. As the law stood before, the plaintiff was obliged to select some one matter of answer to the plea, and rely upon that.

This might have been a denial of some material fact, or the confession of all the facts and the avoidance of them by new matter in the replication. The effect of this legislation was, to impose upon the defendant the burthen of proving many facts, which, as the law stood before, he could not have been called upon to prove. In other words, it was a law providing for the making up of new issues, and imposing upon the defendant burthens which could not before have been imposed upon him. This was considered so important, that in the case of Pickering v. Pickering, 19 N.H. 389, it was held that in its application to pending suits it was unconstitutional, as introducing a new rule for the decision of the cause, that is, imposing upon the defendant the necessity of making proof of allegations which, as the law stood when the action was commenced, must have been admitted by the plaintiff.

Yet no one ever questioned the right of the legislature to make this great change in the mode of making up the issues and adjusting the burden of proof in trials by jury.

The last great innovation was the change in the law by which parties were permitted and compelled to testify. The system of pleading having been virtually abolished, and there being no longer, even theoretically, any mode by which the knowledge of the parties could be made available for the purposes of the suit, it was necessary that some other way should be devised by which their knowledge could be put to use in settling the questions at issue. I am not now discussing the question whether the change, by which parties were permitted and compelled to testify, was or was not an improvement. It was, at all events, a revolution, and the sturdy resistance which some able members of the court opposed to the introduction of that rule in regard to pending suits shows how strongly it was felt to be in derogation of the rights of parties as they existed under the historical jury trial of 1783.

It appears, by the notes to the great work on pleading by Stephen, that the jury trial which has come down to us was originally resorted to for the purpose of avoiding the plaintiff's wager of law, that is, of getting the plaintiff's testimony out of the case. It appears that at that time perjury in courts of justice was even more common than it is now! It is related of one of the kings of France, that, being much imbued with the piety of those days and much a slave to their superstitions, and feeling sure that the witnesses in the courts would commit perjury, he supplied his courts with sham relics, on which the oaths were to be taken, so that the perjury might involve the least possible risk to the souls of the witnesses.

The form of jury trial which has been transmitted to us was introduced, according to this writer, for the purpose of excluding the plaintiff's testimony, — at least, in the form of the wager of law, — and appears always to have proceeded on the principle of excluding the testimony of the parties, the want of that testimony being supplied by compelling the parties to plead at their peril. The assumption, however, that the parties could always know the truth of their case as it would be made to appear by the testimony of witnesses other than themselves, turned out to be entirely without any just foundation. In truth, the rigorous system of pleading, perfect and beautiful in theory, turned out to be utterly impracticable. The difficulties were sought to be obviated by various statutory expedients — statutes of jeofails and others. Mistakes in pleading were allowed to be amended, and double pleading, as far as the first step was concerned was allowed. (4 5 Anne, ch. 16.)

The imperious necessity of devising some way to escape from the hardship involved in the system of pleading probably induced the courts to relax the rigor of the old system, and permit, as far as possible, the defences to be made under the general issue, especially in the action of assumpsit, on which, the promise being that implied by law from the facts alleged as the basis of the action, the denial of the promise involved the denial of all the material facts out of which the promise was implied. And in this way it came to pass that the plea of never promised in assumpsit opened most of the defences to this action. Still, there were some defences in this action which had to be pleaded specially, and the relief against the narrow limits of special pleading was found in the statute of Anne, above cited, by which defendants were permitted to plead by leave of court more than one plea. This relaxation, however, was limited by the construction of the statute to pleas; and it was held that there could be but one replication to each plea, and one rejoinder to each replication.

This system was certainly in force in our state until, in 1831, the legislature swept away all these safeguards from the plaintiff's case at once by the statute which permitted a brief statement of the matters of defence, and permitted the defendant always to plead the general issue and throw that burthen upon the plaintiff and, after compelling him to prove his case, then proceed to offer any number of inconsistent defences which the ingenuity of counsel might devise.

I think it cannot be successfully denied that this legislation materially affected the trial by jury of 1783, which the constitution required to be held sacred. It had always been held most material in trials by jury, to reduce the matters for trial to issues of single facts, and to arrange the burthen of proof accordingly. This was so material, and the want of it has been found to be so serious, that the courts have sometimes found themselves obliged not only to arrange the different points to be considered by the jury, but sometimes to set them down on paper in the form of questions to be taken to the jury-room, and there separately answered. Still further: the points of a case being all presented in this manner, it has been found necessary in our practice to set aside a part of the verdict to be tried offer again and let the rest stand, and a verdict to be patched up out of the whole when the whole case had got correctly tried. I am not now criticising, either favorably or unfavorably, this legislation and practice. I only say that it is a good illustration of the manner in which the legislature has always exercised the right of providing for the arrangement of the preliminaries of a jury trial, and settling and sometimes shifting the burthen of proof, and regulating the admission of evidence, and the kind and quality of evidence used.

I have already alluded to the fact in the history of the jury trial, that one great purposed of its introduction was the exclusion of the parties as witnesses. In the historical jury trial of 1783 it was the right of the party to withhold his own testimony and exclude that of his antagonist. It is hard to imagine a more difficult or dangerous position in which a man can be placed, than to be called upon to testify in his own behalf. It is a position which knaves are more willing to be placed in than honest men, and in which cool impudence and brass too often get the better of modest honesty. Under the jury trial of 1783 the party was not exposed to this ordeal, — more terrible, I think, to many than the ordeal by fire or water. He could neither be compelled to be badgered out of his rights by the insolence and audacity of counsel, nor cheated out of them by the cool and cunning perjury of his antagonist. That part of the system which aimed to draw from the parties what they knew of the facts by the pleadings has been abandoned, and instead of that has been substituted the duel of the parties in the presence of the court and jury. I cannot think that this innovation was not a material alteration in the rights of the parties under the old jury trial. But it has had the sanction of the court, and has been held not only to have been within the power of the legislature to make, but also to make operative in pending suits.

A very long and extensive experience has not satisfied me that the jury is the best tribunal before which to compel the parties to appear as witnesses; neither has it satisfied me that the practice under the former system, by which the testimony of the party could be obtained when necessary for the elucidation of the case, has been advantageously replaced by the modern method. But I do not in the least question the soundness of the decisions which have sustained this legislation.

Meanwhile, the system of trial before auditors has been quietly gaining ground in the good-will of the suitors, and has been felt and known to have been greatly instrumental in the sound administration of justice, and in relieving the courts. In far the greater number of cases, when the parties had had an opportunity of presenting their proofs and their case to an intelligent auditor they were satisfied with the result, and the records of the courts I think will show this.

But here became apparent another advantage in the system, which perhaps had not been anticipated by its founders. The auditor's report usually contained a statement of the accounts, and it almost always happened that the contest before the jury had been narrowed down to a few disputed points, and thus, by the aid of an auditor and an examination of witnesses, the case had been simplified and fitted for a jury trial, and the issues framed. The problem which had baffled the ingenuity of whole generations of pleaders was in this way solved. A mode had been discovered by which the real points at issue could be separated from the rest of the case, and offered in a simple form for trial. The only change that is made in fact in the trial is this, — that sometimes the burthen of proof is shifted to the party who without the intervention of the auditor's or referee's report would not have borne it. The jury, instead of being told that one party in order to obtain a verdict must make the scales tip somewhat, be it ever so little, in his favor, would be now sometimes told that that was incumbent on the other party. Of the practical importance of this, different views will be taken by different persons; but I feel quite sure that it was one of those arrangements preliminary to the jury trial quite within the power of our legislature to make, according to the views suggested.

This matter of shifting the burthen of proof for the sake of convenience is not unknown in our practice.

In Vogt v. Ticknor, 48 N.H. 241, our court held, after all elaborate discussion, that a creditor seeking to avoid a sale as having been made to hinder and delay creditors, might rely upon a judgment in his favor as evidence that he was a creditor.

In such a case, let us suppose that A, claiming to be a creditor of B, commences his action against him, and attaches as the property of B property held by C, by virtue of a sale from B.

Suppose that B contests the action, and after severe litigation A succeeds in obtaining a verdict against B. C is not a party to this action, and has nothing to do with it; but when he comes with his action against A for taking his property, A has still to make out his indebtedness, and, according to Vogt v. Ticknor, although C was not a party to the first suit, and although the indebtedness of B to A is a fact essential to his defence which A has to make out, still, the judgment obtained against B is prima facie evidence for him. Up to this time nothing has transpired to impugn the integrity of C. Nothing is in evidence to make him at all responsible for the doings of B, yet, notwithstanding the maxim res inter alios acta alteri nocere non debet, and notwithstanding our case of Warren v. Cochrane, 27 N.H. 339, in which it was distinctly held that a judgment is not evidence against any one who was not a party of privy to it, C cannot maintain his right without taking upon himself the burthen of overthrowing a verdict and judgment obtained behind his back. It is said by PERLEY, C.J., recognizing the maxim above cited, that "it may be perhaps taken for a uniform rule, that no one is concluded by a judgment or other act or transaction to which he was not actually or in contemplation of law a party.

"But it is not inconsistent with the spirit of the general rule, nor with the terms in which it was formally enunciated, that in certain circumstances and for certain purposes a judgment or other transaction should be taken for what it purports to be, even as to third persons, till something is shown to the contrary. * * The act is not to injure third persons, nocere non debet, and in cases such as have been supposed it cannot be justly said that third persons are injured if the act is allowed to stand till something is shown to throw suspicion on its apparent reality and fairness."

I am unable to see any difference in principle between this case and the case of the auditor's or referee's report, excepting that the case is much stronger in favor of the auditor's or referee's report. In each case a result is laid before the jury as evidence, which is supposed to place a heavier burthen upon the party than he would otherwise have to bear, and so, according to those who contend against the constitutionality of the reference law, the right of trial by jury is impaired.

Everything which is said by the court arguendo to show that some confidence ought to be placed in a judgment so obtained as evidence, applies with still greater force to the auditor's report, which, in point of fact, is not between third parties, but in which the party himself has had an opportunity to be heard. In each case the principle is assumed, that when a result has been reached, either by a judgment between third parties or an auditor's report between the same parties, it is safe to treat it as evidence, and does not impair the right of trial by jury provided it is not held conclusive.

The court arguendo allude to decisions in Massachusetts and Vermont, in which it is held that judgments under such circumstances are prima facie but not conclusive evidence of a debt. The court also allude to the case of Jenness v. Berry, 17 N.H. 49, where it was held that a judgment, with the notes on which it was founded, was not conclusive evidence of the debt.

But in this case, whether such a judgment was evidence at all was a question not raised, and not at all discussed or settled by the court. The court also allude to Sanford Mfg. Co. v. Wiggin, 14 N.H. 441, in which it is said to have been held that the notes on which the writ was founded were not evidence at all of the debt. But in Kimball v. Fenner, 19 N.H. 248, and Prescott v. Hayes, 43 N.H. 593, it was held that such notes are prima facie evidence.

The decision in Vogt v. Ticknor, made under our constitution, is, I think, a distinct holding by the court that the admission of a judgment inter alios, as evidence subject to be impeached, does not impair the right of trial by jury, and I think is equally conclusive to show that the admission of an auditor's report under like circumstances does not impair the right of trial by jury.

It may be said that the decision in Vogt v. Ticknor is a judicial act, and not legislative, viz., not a making of the law, but a declaration of law which, at some other time and by some other power, has been made. The constitution, however, is the supreme law, and if making the decision of a tribunal before which the party has not had an opportunity to be heard evidence to be used before the jury against him, subject to be impeached or rebutted by evidence, impairs his right of trial by jury because of the burthen which it imposes upon him, it would seem that the existing law must have been held to be repealed by the constitution.

The language of the court in Vogt v. Ticknor is very much like the language of the reference law, and speaks of the judgment as evidence having some tendency to show the fact until impeached.

I think, however, that the reasoning of PARKER, C. J., in the case of King v. Chase, shows conclusively that this is not quite correct; that neither a judgment nor an auditor's report is capable of being weighed as evidence, but that their use simply relieves the party in the first instance, or, in other words, burthen the burthen of proof.

It is not to be understood that I in the least degree question the soundness of the decision in Vogt v. Ticknor. I think no one can read the case without seeing that the law was so held mainly as a matter of convenience, and that it really establishes the principle that in such a case, when convenience requires it, it does not infringe upon the constitution for the court to hold and the legislature to enact such a rule of evidence. I am unable to find any distinction in principle, or in anything but convenience, between the case of Vogt v. Ticknor and the case of Warren v. Cochrane, above cited, in which the contrary was held. In the recent case of Howard v. Moot, 64 N.Y. 262, the plaintiffs introduced in evidence an exemplification from the court of chancery of depositions taken in proceedings under the act, to perpetuate testimony respecting the title to the Pulteney estate, for the purpose of proving matters material in the case. Accompanying the deposition was an opinion and order of JAMES KENT chancellor, to the effect that the said depositions did, in the opinion of the chancellor, furnish good prima facie evidence of the facts therein set forth. This was objected to by the defendant's counsel, on the grounds that the alleged facts were not established by the testimony offered, that the legislature had no power to pass a bill authorizing testimony to be taken de bene esse without giving an adverse party the right of cross-examination, and that the testimony was mere hearsay, and upon points where hearsay evidence was incompetent.

The admission of this evidence was sustained by the court of appeal, and I quote three of the marginal notes as follows:

"Rules of evidence are at all times subject to modification and control by the legislature, and changes thus made may be made applicable to existing causes of action"

"An act declaring any circumstance or any evidence, however slight, prima facie proof of the fact, is valid."

"Also, held that the legislature having thereby, — i. e., by the act in question, — made the chancellor the final arbiter to determine what would be prima facie evidence of the facts stated, evidence taken in duo form as prescribed by the act, accompanied by the opinion of the chancellor, properly given, and certified to the effect that it was good prima facie evidence of the facts stated, was, although the evidence was hearsay, competent and conclusive in the absence of any evidence to controvert it."

ALLEN, J., arguendo, says, — "The rules of evidence are not an exception to the doctrine, that all rules and regulations affecting remedies are at all times subject to modification and control by the legislature. The changes which are enacted from time to time may be made applicable to existing causes of action, as the law thus changed would only prescribe the rule for future controversies. It may be conceded, for all the purposes of this appeal, that a law that should make evidence conclusive which was not so necessarily in and of itself, and thus preclude the adverse party from showing the truth, would be void, as indirectly working a confiscation of property or a destruction of vested rights. But such is not the effect of declaring any circumstance or any evidence, however slight, prima facie proof of any point to be established, leaving the adverse party at liberty to rebut and overcome it by contradictory and better evidence. That this may be done is well settled by authority."

The principal if not the only argument against the constitutionality of the reference law is, that the use of the report in evidence imposes a burthen upon the party which he would otherwise not have to bear, and so impairs his right to a jury trial.

I have endeavored to show what the precise effect of the referee's report is upon the right of trial by jury, and to cite some of the cases which show that legislation productive of such effect has in many forms been held within the constitutional power of the legislature of New Hampshire.

It is not to be expected that the instances which I have cited will all be considered of equal force, and perhaps some of them may not seem important at all. Pleading, as known to the common law, is fast becoming one of the lost arts, and I do not by any means suggest that this is any injury to the science and practice of the law; but the fact of its little use now in this country is quite likely to make us forgetful of the important place it once held, and especially its intimate connection with the trial by jury, and its power as an instrument for eliciting and utilizing the knowledge of the parties in the preliminary arrangements for such trials.

On the whole, then, my opinion is, that the function of the auditor's and referee's report in this regard is, to fit the case for convenient trial by jury, and to arrange the burthen of proof; and I think that the enacting of such laws is entirely within the power of our legislature, according to the practice before and under our constitution. It is, in my judgment, with us merely a question of New Hampshire law.

The law for the appointment of auditors has been in its operation most beneficial; and I believe that the law in regard to referees, if sustained, will be equally so, any that the historical jury trial of 1783, and ever before and ever since, has been subject to be moulded and formed in these particulars by the legislature.

I find it impossible to hold that such a perfectly clear case has been made out as calls for or justifies the interference of the court to declare the law under consideration void, as exceeding the constitutional power of the legislature.

Verdict set aside.