FROM HILLSBOROUGH CIRCUIT COURT.
The plaintiff excepted to the ruling of the court permitting the report of the referee to be introduced in evidence, upon the ground that "the statute of 1874, making the report of the referee evidence, is in contradiction of Art. 20 of the Bill of Rights, giving parties a `right of trial by jury, except in cases in which it has been heretofore otherwise used and practised,' and providing that that `method of procedure shall he held sacred.'"
It is not questioned that causes of the kind now before as were tried in New Hampshire no otherwise than by jury, before the adoption of the present state constitution. The learned counsel for the defendant, in their exceedingly able argument, contend that, because in the provincial and early state periods of our history the courts were not composed entirely of lawyers and legal proceedings were exceedingly inartificial, therefore the historical substance of the jury trial of 1792, which my brother LADD, in Copp v. Henniker, 55 N.H. 179, says must be the test upon the question of the impairment of a constitutional right, is no test of anything; and the legislature can set up and establish such a jury trial as was often had before judges ignorant of law. That argument was considered by Judge PARKER, in Pierce v. The State, 13 N.H. 557, 558, where he says, — "It was well understood that the administration of justice [before the Revolution] was, in general, of a very inartificial character, and great complaints were made inspecting it up to that period. How much of this was owing to the want of a competent knowledge of its true principles on the part of those appointed to administer the, law, and how much to the alleged corruption of some of the incumbents of the bench, it is impossible now to determine. Certain it is, that, true or false, allegations of the latter character were not wanting in that period; and it is very clear that we cannot resort with much safety to the rulings or decisions of that time for the purpose of determining a contested question involving legal principles.
"Even after the Revolution, and the adoption of the constitution, although perhaps substantial justice was administered in most cases, little can be claimed for the courts on the score of their scientific administration of the law, according to strict legal rules. It was not, in the very nature of things, that legal investigations should be pursued, at that day as they have been since. Until within a very limited period prior to that time, the administration of the law in England, with the exception of the law in relation to real property, had been in a state of transition, and was is many respects crude and imperfect; and it was not to be expected that those in this country who upon the acknowledgment of its independence had relinquished the sword, and were absorbed in the arrangement of the first principles of free political institutions, should immediately find time to study effectually and bring to the desired perfection a code of rules and practice which should best carry into effect the principles of the common law in regard to the administration of justice. If, therefore, we do not look with the utmost confidence to the period immediately succeeding the Revolution for precedents, it is not a matter of reproach to the men who were then engaged in laying, broadly and deeply, the foundations of a government, one of the fundamental principles of which is that `every subject of this state is entitled to a certain remedy, by having recourse to the laws for all injuries he may receive in his person, property, or character, to obtain right and justice freely without being obliged to purchase it, completely and without any denial, promptly and without any delay, conformably to the laws;' — and another, `that it is essential to the preservation of the rights of every individual — his life, liberty, property, and character — that there by an impartial interpretation of the laws and administration of justice.'"
The decision in Pierce v. The State, overturning the uniform practice of the province and state down to a time as late, certainly, as the trial of Corey for murder, in Cheshire county, in 1830, and holding that the constitutional right of trial by jury would be violated by allowing the jury to decide the law, gives little weight to the old practice of unlearned judges in this state; and recognizes that only as a jury trial which was such by the true principles of the common law, as now held by our courts.
The argumentative opinion of Mr. Chief Justice PARKER seems to modify without contradicting or superseding the New Hampshire historical test, upon which my brother LADD relies, by an application of the fundamental idea of jury trial at the common law; — and if Judge PARKER is right in that application, I am quite unable to contend or to discover that, by the true common law principle, a jury trial ever was, is, or can be a mere decision by a jury of the question, not presented by any pleadings in a cause, whether a different tribunal, auxiliary or other, have decided the issue between the parties rightly or wrongly. The substitution of that question in place of the real issue presented by the pleadings seems to me a most essential alteration of the substance of the jury trial of the common law; — and such fact, the issue
substituted by that provision of the thirteenth section of the law, which makes the report of the referee "evidence of all the facts stated therein, subject to be impeached."
Inclining (as I cannot but feel impelled) to agree with the argument of Judge PARKER, I do not, therefore, as already intimated, come into conflict with the views of my brother LADD. I recognize important principles and logical deductions in both cases. The difference seems to be this: Judge PARKER holds that the jury trial intended by the constitution was the pure and genuine jury trial of the English and American common law, correctly expounded; my brother LADD makes the New Hampshire jury trial of 1792 the test of constitutionality as a historical fact.
Probably both these gentlemen are correct in their views, to a great extent. It may be that the New Hampshire practice before 1792 as a historical fact, and the jury trial of the common law as a principle, should both be considered in the effort to ascertain what kind of a trial the framers of the constitution meant and intended in 1792 by jury trial.
It may well be presumed that the non-professional judges of the province and of the revolutionary generation tried to give parties such a jury trial as they were entitled to by the common law, which was brought to this country by every English immigrant, and established as New Hampshire law. To suppose otherwise is to impute motives and behavior which ignorance of law and legal principles could not excuse nor extenuate. Those judges sometimes made singular work of it; but it ought to be inferred that their understanding was, that parties were entitled to a common law jury trial, and that their desire and effort were to give them such a trial. Such an understanding and intention are of vastly more weight in the present consideration than the want of success with which, on account of their lamentable ignorance of law, their efforts were attended.
I would not seem to be wanting in high respect for those judges of that period, who, like Judge Dudley, not only had no legal education, but possessed very little book learning of and kind acquired in the poor and homely schools of the day. "The strong common-sense, the keen sagacity, the discriminating mind, the retentive memory, the untiring patience, the integrity, proof alike against threats and flattery," of such men as John Dudley and Timothy Farrar, which commanded the respect and admiration of their contemporaries, deserve honorable mention in the history of their day, and reverent recognition by their successors. Nevertheless, it is not to be forgotten that the Revolution, which brought new men to the head of all departments of state — the best men, too, of those rough and stern times — brought no increase, in the first instance, of judicial science. See Life of Wm. Plumer 150; Pierce v. The State, supra.
In Copp v. Henniker, 55 N.H., at page 206, Judge LADD pertinently inquires, — "If the legislature can authorize the introduction of the decision of such a referee, as provided by the act of 1874, why can they
not authorize the judge presiding at the jury trial to act as referee, and give his decision of all the facts the same force and effect as is given to the decision of the referee appointed by that judge? * * * Suppose the presiding justice (required by law to act as the auxiliary tribunal in all civil cases) instructs the jury in this case (as he would be bound to do) that in his judgment the town is guilty, and that they are bound to return his judgment as their verdict, unless it is proved to be erroneous, what is to be done with the authorities that hold it to be `a settled principle of constitutional law that the court are the judges of the law, and the jury judges of the facts, involved in the issue?' State v. Hodge, 50 N.H. 516,522, 523, 525."
It is not difficult for my brother LADD to propound questions like these; but to answer such questions, in such manner as to sustain this law, is not within the compass of my ability.
And this suggestion, from the opinion in Copp v. Henniker, furnishes a further answer to the argument of the defendant's counsel — an answer, I fear, entirely conclusive. If parties are entitled to no other jury trial than such as was often had before the judges of the revolutionary period, the doctrine of Judge PARKER, announced in Pierce v. The State, must be reversed; and we must hold that juries may be made judges of the law in all cases — as in criminal cases they always were in this state prior to the year 1842. And not only would the defendant's argument here reverse the doctrine of Pierce v. The State, but it would also allow the legislature to abolish every essential attribute of the jury trial, as it exists in the minds of educated lawyers, except that of the number twelve, and the unanimity of their verdict; for, under those "common-sense" judges who, like Dudley, expressed their abhorrence of Coke and Blackstone,* the jury trial was merely a dispensation of (or with) justice in each particular case, without law, contrary to law, according to the arbitrary sense of justice evolved by the feelings, passions, and interests of twelve men, instructed by a judge as ignorant as they to give such a verdict as they pleased. It is not to be imagined that anybody will consent to such an administration of law as that, or believe that such an overthrow of all law, and such an arbitrary, capricious proceeding, is the true legal construction of the constitution that established trial by jury among a people who intended to bring with them to this country the jury trial of the common law of England, — a jury trial understood by educated lawyers to be defined by common law principles, which Dudley and some of his contemporaries probably tried, though unsuccessfully, to apply. The judges of that class, in their generation, supposed they were administering the trial by jury in accordance with the true common law theory; — when they failed to do that, they failed, not because they intended to change the jury trial of the common law, but because they were unable, from want of intellectual capacity, to do what they tried to do, and what they supposed they were doing.
So the constitutional conventions of 1783 and 1792 must have had the same intent as those judges — Dudley, Farrar, and others. They must have intended such a jury trial as that of the common law of England, under which they had always lived, and which they adopted — not precisely that trial in every unimportant detail, but precisely that in substance and so far as its essentials were concerned. Judge SMITH, and others in the convention of 1792, did not understand the "sacred right" and "inestimable privilege" of trial by jury to mean such a trial as overturned all law before such judges as "never read and never would read" the "sages of the law." The "sacred right" and "inestimable privilege," not conferred but confirmed by the Bill of Rights, was, in the mind and intention of those who declared it, the common law jury trial in all its essential and time-honored attributes. And it is not possible that any other kind of jury trial can be sustained as the true legal construction of the constitution.
The authorities are numerous that construe common law terms in a constitution according to their common law signification. Our constitution is to be construed in the light of the common law. A system of jury trial such as our English ancestors never knew might have been created by our constitution makers, but if they had chosen such a creation they would have conferred upon their creature some distinctive and recognizable mark. Instead of this they used a familiar term to express their idea; — but if any one will seek for a definition of the term, he must draw from that great fountain, the common law; and in doing this he must bear in mind, as I said a little while ago, that this right of jury trial is not conferred but confirmed by the constitution; that it is not the beginning of a law for the state, but that it assumes the existence of a well understood system which is to be continued in force and "held sacred." Cooley's Const. Lim. 60. If any common law term has a settled and definite signification, it is "trial by jury." And what shadow of an argument is there to show that a common law jury trial is had when a jury, instead of passing upon the real issue presented by the pleadings, weighing the evidence pro and con, pass upon the question whether same other tribunal has correctly decided the issue between the parties, starting with the decision of the other tribunal as making a prima facie case in favor of its own correctness?
And when my brother LADD, in Copp v. Henniker, at page 207, inquires whether the people of New Hampshire in 1792 intended to secure for themselves and their posterity nothing more than a trial in which judgment should be rendered on the verdict that "The jury find [by a preponderance of evidence, or beyond all reasonable doubt, or beyond all possible doubt, as the legislature may choose to fix the weight to be given to the auxiliary decision] that the auxiliary decision is not shown to be wrong," I am compelled to confess that I see but one answer that can be given to the question without doing violence to all ideas of a legal, and all sense of a constitutional, character. If the constitutional jury trial is no more than that, it is nothing at all; for the legal substance of jury trial (in whatever sense it is understood)
may be abolished by a great variety of ingenious statutes. If a jury can be compelled to give their verdict, not upon the issue between the parties, but upon the question whether an auxiliary decision of that issue is right, giving to that auxiliary decision, as evidence of its own correctness, such weight as the legislature choose to prescribe, the constitutional guaranty of jury trial is a delusion; and if that guaranty can be repealed by legislative circumlocution, every other constitutional guaranty is a constitutional farce.
Now, to my mind, the foregoing proposition, which embodies the substance of my brother LADD'S opinion upon this point, has the semblance of a mathematical demonstration, and the force and effect of a reductio ad absurdum.
It brings a great question of constitutional law down from the region of debate and logical reasoning, and puts it in a few arithmetical figures on the slate, in a form simple enough to be understood by any layman intelligent enough to understand the simplest sum in subtraction — for it is nothing else. "How can it be shown that such a proceeding is not a transfer of a part, small or great (according to the degree of effect given to the auxiliary decision), of the duty of deciding the issue from the tribunal to whom the constitution assigns the duty, to a tribunal to whom the constitution does not assign it?" Copp v. Henniker, page 209. This question is fundamental, and not to be disposed of by astute evasion or general declamation. The learned and ingenious counsel for the defendant do not attempt to grapple with it. If any error is involved in the proposition and the inquiry before suggested, it is an error on so vital a subject, involving, as it does, the universal principles of constitutional construction, that nothing short of a mathematical demonstration of the error will satisfy any candid mind. Rhetoric will avail nothing against that simple sum in subtraction to which the whole matter is reduced. It is requisite to show by solid reasoning that there is all error in the process by which the whole matter is reduced to that sum, or it must be conceded that two taken from four leaves four.
And because of the great practical need (which I cannot fail to recognize) of a reform in the system of jury trial, and the establishment of a general system of trial by reference, at least of unimportant cases, it is with great reluctance and discomfort that I am compelled to acknowledge my inability to demonstrate or to discover any error in the argument resulting in the foregoing conclusions.
It is said in argument, by the defendant's counsel, that the legislature have authority and power to prescribe what shall and what shall not be evidence. Certainly they have, provided the legislature infringe no constitutional rights. But there are many constitutional rights which might be infringed by statutes prescribing rules of evidence.
"There is much authority [said DOE, J., in Kent v. Gray, 53 N.H. 578] for holding, in general terms, that a right to have one's controversies determined by existing rules of evidence
is not a vested right; that rules of evidence pertain to the remedies which the state provides for its citizens; that, like other rules affecting the remedy, they must at all times be subject to modification by the legislature. * * * Cooley's Const. Lim. 367. But general statements of this kind are to be taken with the broad qualification that the changes must not infringe the general principles of justice." And upon page 579 Judge DOE continues: "A statute is not necessarily just and valid because it affects the remedy. The question is, not whether it affects the remedy, but whether it affects the remedy in a certain sense, and the remedy only. This point is forcibly illustrated in the dissenting opinion of BELL, C. J., in Rich v. Flanders, 39 N.H. 347, 348. If a statute, in terms made applicable to pending suits, should provide that no deed should be received in evidence unless the attesting witnesses were fifty years of age at the time of the trial, and if the retrospective character of such a statute were the only objection to its validity, it would not be made valid by the fact that it affected the remedy. It could not be applied to pending suits, or to deeds duly executed before its passage, because it would unjustly affect rights as well as remedies. Legal evidence of title could not be justly destroyed, however strongly the statute might profess to be exclusively aimed at the remedy. The principles of justice, declared by the prohibition of retrospective laws, are not evaded by words, names, and pretences; and when we have merely ascertained that a statute affects the remedy in some sense or other, we have made very little progress in the inquiry whether it affects a right, — that is, whether it is unjust on general principles. If a certain change can be made in the remedy, it is because it call be justly made: if a change cannot be made in the right, it is because it cannot be justly made."
The suggestion of Judge DOE, that no rule of evidence can be prescribed by statutes in violation of the constitutional prohibition upon retrospective legislation, will not probably be controverted. That prohibition protects title against a statute changing the rules of evidence, and rendering a seal unnecessary on a deed, or requiring three witnesses. Executed conveyances cannot be validated or invalidated by statutes retrospectively prescribing rules of evidence. That is one limitation of legislative power. The constitutional right of trial by jury is another limitation; and we certainly cannot say that the legislature may so change the rules of evidence as to deprive parties of such a jury trial as the constitution intended they should have. The rules of evidence may be so changed as to infringe the constitutional right of jury trial, and they may be so changed as not to infringe it. The legislative power of regulating evidence, like all other legislative power, is limited by every right guaranteed by the constitution; and to say the legislature may regulate evidence, is merely to say they may make any law on any subject that infringes no constitutional right.
Jury trial is a remedy, and remedies may be altered by the legislature; therefore the legislature may alter jury trial to any extent! That is the kind of syllogism which puts the argument in a definite shape.
The trouble is, the proposition that remedies may be altered by the legislature is subject to the supreme qualification that no constitutional right can be infringed by any alteration of remedies. Some superficial people have cheated themselves by a verbal distinction between rights and remedies, when the constitution recognizes no such distinction. Whatever we may mean by "remedy" in any particular case, the legislature cannot deprive parties of any right or any remedy secured to them by the constitution. And if the proceeding which my brother LADD has shown to be a subtraction of essential jury power from the constitutional jury power is an infringement of the constitutional guaranty, if it changes the substance of the jury trial which the constitution intended to secure, it is none the less unconstitutional because it is a change in the "remedy," or a change in the "rules of evidence."
To say the legislature call change remedies and the rules of evidence, is merely to say that, on those as well as all other subjects, the power of legislation is conferred by the constitution upon the general court. But still the great question remains, What is the legislative power on those and all other subjects? And the answer remains, The legislative power is the power of making constitutional laws. And that limitation is not to be thrown off by any verbal description of "remedy," or "rules of evidence," or "prima facie case," or "burden of proof," or any other subject of legislation concerning which constitutional laws may be made. If the change in the "remedy" or the "rules of evidence" is such a change as has been heretofore described in the demonstration of the sum in subtraction, and if it is constitutional, then, by any legislation concerning the "remedy" or the "rules of evidence," we can abolish the whole constitution; and that is, I suppose, a little further than anybody has gone or is willing to go.
Upon this point it may be profitable to regard what is said by Mr. Justice CURTIS in Curran v. The State of Arkansas (substituting the term "jury trial" for the term "obligation of contracts" there employed): "If this law had contained only the first section, vesting the real property of the bank in the state, and providing no remedy by which this complainant, as a creditor of the bank, could reach it, we think it would have impaired the obligation of his contract. True, it does not touch the right of action against the bank; it only withdraws the real property from the reach of legal process, and thus affects the remedy. But it by no means follows, because a law affects only the remedy, that it does not impair the obligation of the contract. The obligation of a contract, in the sense in which those words are used in the constitution, is that duty of performing it which is recognized and enforced by the laws. And if the law is so changed that the means of legally enforcing this duty are materially impaired, the obligation of contract no longer remains the same."
This has been the doctrine of the court from a very early period. In Green v. Biddle, 8 Wheat. 1, Mr. Justice WASHINGTON, delivering the opinion of the court, said, — "It is no answer that the acts of Kentucky now in question are regulations of the remedy and not of the
right to the lands. If these acts so change the nature and extent of existing remedies as materially to impair the rights and interests of the owner, they are just as much a violation of the compact as if they directly overturned his rights and interests."
In Bronson v. Kinzie, 1 How. 311, Mr. Chief-Justice TANEY, delivering the opinion of the court and speaking of the above rule, as laid down in Green v. Biddle, said, — "We concur entirely in the correctness of the rule above stated. The remedy is the part of the municipal law which protects the right, and the obligation by which it enforces and maintains it. It is this protection which this clause in the constitution was mainly intended to secure." See 1 Kent. Com. (12th ed.) 420, note.
But to pursue this branch of the inquiry a little further: In the judiciary act of 1874, and in the laws relating to auditors, the legislature do not undertake to fix the weight to be given to ordinary evidence, — evidence in its common law sense; but, as heretofore shown, they change the issue to be tried. For the issue raised by the parties, they substitute the question whether the auditor or the referee has weighed the evidence correctly and decided the issue rightly; and on this substituted question (raised by the legislature and not voluntarily by the parties) the legislature fix the weight which the jury shall give to the auxiliary decision, the correctness of which is the substituted issue. Obviously, if the legislature can do that, they can give such weight to the auxiliary decision as will make the jury trial of the substituted question of the correctness of the auxiliary decision a formal ceremony, of no practical value. If jury trial means anything, it means a jury trial of the actual controversy between the parties — the questions of fact about which they are contending. The legislature may prescribe the proceedings and forms in which the parties shall state those questions; but when the parties have stated them in the prescribed form, and raised a distinct issue by their pleadings, then, for the legislature to send that issue to an auxiliary tribunal for decision, and then submit the secondary question, whether the auxiliary decision is right, requiring the jury to give such weight to that decision as the legislature choose to give it, — what is this but an arbitrary attachment of a certain weight to the auxiliary decision; an attachment made not by the judicial department, who are entrusted by the constitution with the weight of evidence, but by the legislature? And when the substituted question is, whether the auxiliary decision (that is, the auxiliary weighing of the evidence) is right, and when, upon that question, the auxiliary decision itself is to have as much weight in the minds of the jury as the legislature may arbitrarily choose to attach to it, — when we have gone as far as that, would the result be any plainer if we were to put it in this form, The legislature can, by a circumlocution, abolish the constitutional jury trial?
There may be some nice questions about the right of the legislature to fix an arbitrary weight to ordinary evidence. The constitution establishes three departments of government — the executive, the legislative
and the judicial. And the weighing of evidence in a judicial proceeding, in 1792, certainly was, as a general rule, the function of the tribunal who heard the evidence, and not the business of general legislation. But waiving that point and passing over all questions of legislative power over the general rules of evidence, — when we say the legislature can substitute an auxiliary decision of the issue instead of the issue, and, upon the question of the correctness of that decision, give that decision itself such arbitrary weight as they please, have we not reached the end of the sum in subtraction? Have we not folded up that part of the constitution relating to jury trial, and laid it away as record evidence that the constitutional right is abolished?
And so we are brought back to the point of original departure; and there stands the impregnable barrier of judicial argument and logic, expressed in Copp v. Henniker. Condensed into a single proposition here it is: On no ground of constitutional principle can the legislature send the issue to the presiding judge, or any other auxiliary tribunal, for decision, and then leave to the jury only the question of the correctness of the auxiliary decision, requiring the jury to give to that decision, on the trial of the question of its correctness, such weight as the legislature choose to attach to it.
Confronting all power of declamation, of rhetoric and of argument, there stands the inevitable reductio ad absurdum of all opposing theories — a battery with converging fire, from the range of which, retreat in the best order practicable (but with expedition, at all events) seems to be the suggestion of prudence.
In the commencement of his argument, the learned counsel for the defendant remark to the effect that the provincial right of appeal to the governor and council, and to the king, substantially destroyed the right of jury trial in all important cases.
Then, in all important cases, we have no right of constitutional jury trial now! The argument of the learned counsel abolishes the right of jury trial in all the important cases, — all the cases in which there was an appeal to the governor and council or to the king — leaving us only, perhaps, the right of a jury trial in cases where the amount in controversy is less than $13.33, on appeal from a justice of the peace. The argument shows, not that the referee law, in the respect under consideration, is constitutional, but that, in important cases, the constitution does not guarantee a jury trial at all! But my brother LADD has shown conclusively, as it seems to me, that the repeal of the right of appeal to the governor and to the king, at the beginning of the Revolution, and the continued abolition of such appeals from 1776 to 1792, leave the constitution to he construed as if no such right of appeal had ever existed. Copp v. Henniker,55 N.H. 191, 192.
So the argument of the defendant's counsel, from the statute relating to the assessment of damage done by stray cattle, shows, if it shows anything pertinent to this case, that the constitution does not
guarantee any jury trial at all. The case of the assessment of such damages was probably an exception to the right of jury trial when the constitution was adopted. N.H. Laws ed. of 1771, pp. 67, 78, ed. of 1780, pp. 244-246, ed. of 1797, pp. 338, 343. But whether the estray law was an exception in which it had been "heretofore otherwise used and practised" or not, seems immaterial; for, if it does not come within that exception, it proves that there is no such thing as a constitutional right of jury trial — and that is proving rather too much.
And finally, as to that part of the defendant's argument concerning the auditor law: That law is limited, in terms, to cases in which an examination of vouchers or an investigation of accounts is required. But whether it is inevitable that the auditor law and the statute under consideration shall "stand or fall together," as the defendant here suggests, is not a question now before us. My brother LADD (Copp v. Henniker, p. 209) is ready to stand on the authority of fifty years' acquiescence, and to regard it as settled by the precedent of so long a unanimous consent in cases expressly named in the auditor law, and to which by general consent it has been applied; and it is earnestly to be hoped nobody will object to standing upon that ground, in view of its practically beneficent operation and results. And in any view that can be taken of the acquiescence in the auditor law (as an authority and a precedent, as distinguished from principle and constitutional logic), how can it be extended beyond the class of cases to which it was by its express terms applied and to which alone the authority of fifty years' acquiescence applies it.
The defendant's counsel seem to argue, that because, in cases of accounts and vouchers, auditors may decide any question, therefore an auditor or referee may finally decide, without appeal to a jury, any kind of case. That is a palpable non sequitur. Cases of accounts were sent to auditors because they could not be conveniently and intelligently tried by jury. Of course, whatever tribunal tried such cases, must try every question involved. But it does not follow that in other cases a jury trial may be dispensed with.
My reluctant conclusion is, that that part of sec. 13, ch. 97, of the acts of 1874, which provides that upon the trial by jury of a cause which has been referred under the act "the report [of the referee] shall be evidence of all the facts stated therein, subject to be impeached;" and so much of sec. 3, ch. 35, of the acts of 1876, as makes provision to the same effect, are in conflict with the constitution of the state, and are therefore void.
It is to be hoped the wisdom of the legislature, assisted by that of the legal profession, will devise some plan by which the substantial benefits of a constitutional reference law may be saved and secured.
Although cases have, as a rule of practice, been formally referred "by order of court," that formality has been usually interposed for no other purpose than to save the right of a subsequent jury trial, and so
causes have practically, in most cases, been referred by consent. With regard to cases thus referred without anything being said or done to indicate that a jury trial would be demanded, or that on such trial the admission of the referee's decision as evidence would be objected to, and also with regard to cases referred "by order of court," to which order no exception has been taken, — whether the parties should be held to have waived all objection to the operation of the whole referee law to their case in all subsequent stages of the cause, something, perhaps much, may be said when the occasion shall call for all expression of opinion. Our general doctrine of waiver is very broad. See Patrick v. Cowles,45 N.H. 555.
LADD, J., concurred.
* "Books that I never read and never will." DUDLEY, Life of Plumer, 154.