#### JOSEPH ROOKER, *pl’ff in error, vs.*NELSON E. NORTON, *def't in error,*and NELSON R. NORTON, *pl'ff in error, vs.*JOSEPH ROOKER, *def't in error,*

*Errof to Racine county.*

Tiie Court will not decide an act of the Legislature to he unconstitutional, unless the caséis clear and manifest.

The statute of Wisconsin, authoring the district courts to refer certain cases to referees, is not unconstitutional; and the district court may refer such a case against the will of either party, and such a reference does not ■violate the right of trial by jury secured by the constitution.

The object of the constitution was to secure to every one a trial by Iris peers, and this right is as well secured in the hands of sworn referees as a common law jury.

A report of referees which reports a sum certain found to be due and the testimony upon which the decision is based, is sufficiently certain, although it does not state the *facts*which they find, or show what particular claims have been allowed or disallowed.

Partial failure of the consideration of a note, may be given in evidence on the trial, where notice has been given of the defence intended to be set up, but it cannot be given in evidence under the general issue without notice.

A notice of special matter tobe given in evidence under the general.issue, need not be as formal as a special plea: if it contains matter, which, if embodied in a formal plea, would be decided on general demurrer to be a bar to the action, and is set out so certain that the plaintiff is apprised of the fact and not taken by surprise, it is sufficient.

Although unliquidated damages cannot bo set off against a certain demand, yet where the damages arise from a breach of the plaintiff’s contract which formed a part of the consideration of the note sued on, they may be given in evidence under a notice, for the purpose of reducing the plaintiff’s damages.

Where referees report a sum cértain to be due to the plaintiff, and also make a conditional report, stating that they find a sum certain to be due from the plaintiff to the defendant which in their opinion cannot, according to law, be allowed in the same action, but that if their opinion of the law is erroneous, then the sum found to be due to the defendant is to be deducted from the amount found in favor of the plaintiff, the Court may, if the matters found in favor of the defendant can he legally taken into consideration, confirm both reports and enter judgment for the balance in favor of the plaintiff.

A promise by the defendant to paya promissory note, not negotiable, to an assignee, although made unconditional, does not preclude the defendant from setting up a failure of consideration in a suit subsequently brought by the payee when there is nothing to show that the suit is for the benefit of a third person.

These were cross writs of error brought to reverse a judgment of the Racine District Court.

Norton brought an action of assumpsit against Rooker in the *34court below, upon a promissory note for ‡464, dated at Chicago, 21st July, 1838, payable one year after date, in boots and shoes to be delivered at Foxville, in Racine county. The declaration also contained the common money counts accompanied with a copy of the note and a bill of particulars. Rooker pleaded the general issue, and gave notice of special matter to be given in evidence, to wit: that the note sued on was given without consideration, and was obtained by fraud, and deceitful misrepresentations of the plaintiff; set off with a bill of particulars, in which he claimed $1000: for Norton’s failing *to*fulfil a verbal contract *to*finish certain buildings on Rooker’s farm, and dig and wall a collar under his house.

The District Court ordered the case to be referred to three referees, to which order of reference Rooker objected.

The referees reported to the court, that there was due from Rooker to Norton the sum of $360, besides costs. They also reported, by way of supplement, that there was due from Norton to Rooker—

For damages for not digging and completing cellar according to contract, $200 00

For not finishing wood-shed and granery, 41 00

For not finishing barn, and damage, 16 50

Amounting in all to the sum of $257 50: that the allowance of these sums was objected to by Norton, on the ground that they were not proper subjects of set-off, which objection was sustained by the referees; but they say, that if they erred in that decision, then the sum of $257 50 is to be deducted from the sum found in favor of Norton, who is to recover the balance. The referees also reported the evidence taken before them.

Rooker excepted to the report of the referees; the substanco of which exceptions is embodied in his assignment of errors.

Tho District Court confirmed the report and supplement, and gave judgment in favor of Norton for the balance, after deducting the claim of Rooker for damages as found in the supplement of the referees. Both parties were dissatisfied with the decision of the court: Norton contending that he was entitled to *bis*whole claim as found by the referees without any deduction, and Rooker, that the whole judgment should be reversed, and each party has brought the case into this court to correct the errors of the court below.

*35Rooker assigned the following errors in the proceedings of the District Court;

1. The court erred in referring this cause to referees against the consent of the plaintiff in error, (defendant below,) the action being a common law action.

2. The court erred in ruling that it was not necessary for the referees to report the facts as found by them in the trial of the cause.

3. The court erred in ruling that it was not necessary for the referees to make report of what they had allowed of plaintiff’s claim, or disallowed, or what they had allowed or disallowed of the claim of sot off of the defendant below.

4. The court erred in ruling that the referees decided properly in finding that misrepresentations, as proved, did not avoid the note in suit,

5. The court errod in accepting the report of the referees, and entering judgment thereon.

And *Norton*made the following assignment of errors on his part:

The damages which the defendant sustained, as reported by the referees, ought not to have been deducted from the plaintiff’s demand for the following reasons:

1. By the agreement of the parties, the payment of the note was a condition precedent to tho doing tho work for the not doing of which tho defendant complains that he has sustained damages.

*2.*The defendant having once promised to pay tho note in the hands of an assignee, was ever after barred from setting upa want or failure of consideration.

3. Partial failure of consideration cannot be set up in defence of a note.

4. Unliquidated damages cannot be set off.

5. There were fatal variances between the contract proven and the one pleaded.

The causes were argued separately. In the case of Rooker vs. Norton, Towsiee for plaintiff in error contended:

1. The order of the court below, referring tho cause to referees, against the will of Rooker, was erroneous. This is a common law action, and the value in controversy exceeds twenty dollars. The defendant below insisted upon a trial by jury. The right to this is secured to him by the constitution of the United States, and it is not competent for the legislature and the courts *36to substitute another mode of trial. See Art. 7, of the amendments to the constitution, 1 Aiken, 148.

2. The report of the referees ought to have been set aside by the court below. The report ought to have stated the facts, and not the testimony at length. The report should be like a special verdict of a jury, to enable the court to apply the law to the facts, and not a mere report of evidence without any statement of facts established by it. 1 Aiken’s Rep. 148; *id.*359. 1 Vermont Rep. 250; 3 do. 359; *id.*389, Law Reporter, Vol. 1, No. 2. 5 American Digest, 52, 53.

3. The report should have stated the accounts between the parties, and shown what had been allowed or disallowed of each. A report showing a gross sum to be due to either, without stating the facts upon which the decision is based, is erroneous. The referees should not reporta gross sum in the nature of a general verdict, for they are not the jury; they are only auditors or mere officers of the court, and cannot decide the cause, *but only*pic-pare the case for the judgment of the court. 1 Aiken’s Rep. 359. 3 Vermont Rep. 389; *id.*597. Law Reporter, Vol, 1. No. 2. 4 Crancb, 307. 6 Crancb, 9 to29.

4. Fraudulent representations, or the concealment of defects in the property sold, will avoid all contracts, and the defence may be made under the general issue. If it wás proven befere the referees that the note sued on was obtained by false and fraudulent representations, or that Norton concealed material defects in the property sold to Rooker, for which the note was given, or misrepresented its quality and value, the referees ought to have disallowed the whole of Norton’s claim. Com. on Contracts, 35, 66, 207,209. 12 East. 637. 2 Saund. Plead. &Ev. 907. 3 John. 280. Cowen & Hill’s Notes to Phil. Ev, part 2, page 1475. Sugden’s Vendors and Purchasers, 5.

The proof in this case shows that Rooker wished to purchase a farm of a particular description, and possessing particular advantages; that Norton represented that he had one to sell of just such description, which he thereupon sold to Rooker, for which the note in suit was given in part,'and that these representations were false; Norton is therefore not entitled to recover.

Marshall M. Strong, for deftt in error;

The statute of the Territory authorizing the courts to refer cases, is perfectly constitutional. The meaning of the article in *37the constitutution that has been referred to is, that a man shall be tried by his poors, and not by persons permanently connected with the court, and the number is not material. Our statute is copied from the statute of New York, (see 2 Revised Statutes N. Y. 384,) which has been in force in that state since 1812, and its constitutionality has never been questioned there. Again,by the laws of New York, in cases b,efore a justice of the peace, where the judgment is under $25, no appeal can be taken. A justice’s jury consists of six persons. Thus cases where the amount of tho judgment is between $20 and $25, although they come under the constitutional provision relied upon here, are tried by ajury of six, a number unknown to the common law as composing a jury. This Jaw has also the sanction of long standing without its validity being questioned. Referees, under the statute, are sometimes called a legislative jury; they answer every purpose, and secure every right that could be effected by a common law jury-

The report of the referees is not liable to the objection embraced in the second and third errors assigned. The form of the report is adopted precisely from Yates’ Pleading, p. 799. The practice that has been pursued in this case in relation to the reference, prevails in New York under a similar law. Yates’ Pleading, 339. Graham’s Practice, 576. 4 Wendell, 199. The cases that have been referred to by the plaintiff^ counsel, from Cranch, are where auditors were appointed in equity causes, and do not,apply to this case; and those in the VermontReportsarose under the peculiar provisions of the statute of that state, which is not analagous to ours.

The fourth point assumed is not sustained by the evidence. The proof shows that Rookerspent several days at Norton’s house on the farm, and examined it for himself before he purchased; and in such case the rule of *caveat emptor*applies. But if the contract is void, it is void *in tolo.*Rooker cannot keep the farm and enjoy it for years and avoid paying for it.

Moses M. Strong, in conclusion:

One of the most important points in the case, is the one first suggested by the plaintiff in error. To decide upon the constitutionality of a law, is always a grave matter in the consideration of the court; but when an act of the legislature is shown plainly to conflict with the constitution, the court will not hesitate so to de*38cide. The right of trial by jury, has always been considered one of the most valuable rights secured to American citizens. This right was not created or granted by the constitution; it existed before the constitution,'as the birth-right of every American, and the constitution only confirms and secures the right. If we give a common sense construction to the 7th article of the amendments, we must come to the conclusion that the act of the legislature authorizing the courts to substitute referees instead of a jury against the will of a party, violates its provisions. The referees have been called a legislative jury. It matters not by what name they are called, they are not the jury that the party had a right to, to try iris cause, when the constitution was adopted; they do not possess any of the attributes of a jury; the party has" not the benefit of a trial before the court and jury together, and the instructions of the court to the jury upon the law of the case.

The objections to the report itself are based upon the supposition that the order of reference is legal. Admitting the order to have been legally made, still the report is bad, and ought not to have been confirmed by the court. The referees have reported testimony when they should have reported facts; they have left the court to ascertain the facts from the testimony, and the court became the judge of the facts as well as the law. If they come in place of a jury, and are to be considered as a jury for all legal purposes, they ought to have decided what facts were proven by the testimony.

The case of Norton vs. Rooter coming up for argument, Marshall M. Stroks, for plaintiff in error, said:

By the agreement of the parties, the payment of the note was a condition precedent to the performance of Norton’s contract. Until the note was paid, Rooter could not require performance from Norton. Chitty on Bills, 87. American Law Library, 33. At most, the agreements wore independent of each other, and were the subjects of separate actions, and not of set-off against each other.

Partial failure of consideration cannot be sot up in defence in an action upon a promisory note. This is the universal rule of law in England, and wherever it has been departed from in the United States, it has been under particular statutory provisions: *Meed vs. M'Állister,*S Wendell, 109. Bailey on Bills, 534 to 544. Chitty on Bills, 8. 5 Cowen’s Rep. 494. 1 Littell’s Rep. *39233. 5 do. 249. Harrison’s Digest, 524. Chitty on Bills, 88, 89.

The express promise of Hooker to pay the note in the hands of an assignee, precluded him from afterwards setting in defence any want or failure of consideration. This promiso amounted to a legal admission of the sufficiency of the consideration, and ostop-ed him from the defence that has been made in the case. 2 Cow-en’s Treatise, 740. Bigelow’s Digest, 705.

In the court below, the defence set up under Norton’s contract, was not in mitigation of damages, but was under a notice of set* off, claiming unliquidated damages. The principle that unliqui-dated damages cannot be setoff, is too wqll settled to need argument. 8 Wendell, 109. Stat. of Wisconsin, 278. Again, the notice of special matter is bad. The rule in New York to test the sufficiency of a notice of this kind, is to see if it would be good on general demurrer if it were embodied in the form of a special plea. 10 John. Rep. *140. If the*notice in this case is tested by this rule, it cannot be sustained.

The contract proven before the referees, was materially different from that slated in the notice. The defendant below ought to have been confined in his proof to the matters stated in his notice. 10 John. Rep. 140. Cowen’s Treatise, 557,558. 1 Cow-en’s Philips, 207, 209. 2 do. 509.

Towsi.ee, for def’t in error:

The decision of the court upon the questions now under consideration, was altogether proper under the circumstances of the case. The facts have not been correctly stated in argument. The proof shows that instoad of the payment of the note being a condition precedent to Norton’s performance, Norton was to perform his contract six months before the note became due, and that his performance was a condition precedent to the payment.

Although asa general principle, unliquidated damages cannot be set-off, yet where the damages arise from the non-performance of a condition precedent in a contract that entered into the consideration of the defendant’s promise, they may be brought in and allowed.

Under the revised statutes of New York, which the counsel for the plaintiff in error admits, in this respect, to be in affirmance of the common law, partial failure of consideration may be given in evidence upon the trial to reduce the plaintiff’s recovery. 1 Cow-*40en’s Treatise, 174. The defence in this case was not insisted upon on the trial as a set-off, but as a partial failure of consideration, and as such was properly allowed, 1 Cowen’s Treatise 174, 176. Cowen & Hill’s notes to Phil, Ev. 1475.

The notice of special matter need not be as particular as a special plea. The notice in this case was understood by the plaintiff, and accepted as sufficient; no objection was made to it at the trial, and it is too late now to except to its sufficiency.

Moses M. Strong, in continuation:

All the objections taken by the plaintiff in error are based upon the supposition of a certain state of facts. The record only shows that the referees state that particular witnesses testified to certain facts. This is not showing to the court that the facts existed, nor did it authorize the district court to decide that they did exist,

Wells, in conclusion:

The case resolves itself into two points: 1st. can the defendant set up a partial failure of consideration in defence? *and' 2d. can*he avail himself of it by way of set-off? In this case the claim of the defendant was for unliquidated damages, which cannot bo set-off. The authority read from Cowen, is only the dictum of the . compiler, and that does not support the position assumed. The question is,'did the District Court err? or did the referees eir? The referees reported a sum certain in favor of the plaintiff; but if the law should allow the unliquidated damages to be set-off, then, according to their supplemental report, a certain sum should be deducted from the plaintiff’s demand. The court allowed *the*set-off, and we think it erred in doing so. It ought to have rendered judgment on the absolute report, and rejected the supplement and set-off. *Lawrence vs.*Niles, 10 John. Rep. 141.

Judge Irvin

delivered the following opinion of the court in both cases:

JOSEPH ROOKER *vs.*NELSON R. *NORTON.*

This cause camo up on error to the judgment of the District Court of Racine county given at the November term of said court for 1841.

The action was assumpsit instituted by Nelson R. Norton, the defendant in error, against Joseph Rooker, the plaintiff in error, upon a promissory note, to be discharged by a payment in shoes and boots, and an account, and declared on with the usual counts in that form of action; to which the defendant inter*41posed a plea of the general issue, with a notice of set-off and special matter to be given in evidence.

In the progress of this cause, it appears that the court referred it to referees, in pursuance of the authority contained in the 84th section of *“*an act concerning proceedings in courts of record,” (Statutes of Wisconsin, page 239,) by which it is provided that “ whenever it shall appear probable in any cause depending in any District Court, that the trial of the same may require the examination of a long account on cither side, the said court, at any time after issue joined, in such case, may refer such case, by rule of court, to referees, who shall be three such persons as the parties may agree upon, and if they shall not agree the said court shall nominate them, which referees shall hear and examine the matters in controversy, and report thereon,” &c., and upon which reference report was afterwards made and accepted by the court, and judgment given thereon.

*It*further appears, that the plaintiff in error objected to the reference of the cause, on the ground *that ho*had aright to trial by jury, but which objection was overruled; and it further appears that the defendant objected to the acceptance of the report of the referees for reasons stated in his bill of exceptions, tbe substance of which is embodied in his assignment of errors in this court, which is as follows:

> “ 1. The court erred in referring this cause to referees, against the consent of the plaintiff in error, the action being a common law action.

> *2.*The court erred in ruling that it was not necessary for the referees in this cause to report the facts as found by them in the trial of the cause.

> 3. The court erred in ruling that it was not necessary for the referees to make a report of what they had allowed of the plaintiff’s claim or disallowed, or what the referees had allowed or disallowed of the claim of off-set of the defendant below.

> 4. For that the court erred in ruling that the referees had decided properly in finding that false representations, as proved, did not avoid the note in suit.

> 5. The court erred in ruling that the report of the referees be accepted, and entering judgment thereon.”

The first error assigned is upon the construction of the 7th article of the amendments to the constitution of the United States, *42which is, that *“*in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall he preserved,” &.C., it being contended by the counsel for the plaintiff in error, that the law of the Territory before referred to, is in violation of this portion of the constitution.

To justify a court in declaring a law of the legislature unconstitutional, the case must bo clear and manifest. 12 Sergt. & Rawle, 330. 3 Sergt. & Rawle, 169. Is this such a case? If wo be permitted to take the uncontradictod action of the different stales on this subject, indulged in, in some instances, fot a quarter of a century,as an answer to this question, wo should say that it is not; for, in some shape or'other, has the practice of referring suits to referees existed in some of the states, perhaps, ever since the adoption of the federal constitution, and in states, too,-where similar provisions are found in the state constitution.

In tho state of Now York, where the provisions of the law, in this respect, arc similar to those of our statute, the practice has existed for upwards of thirty years. In Pennsylvania it has existed, in even a stranger form, for many years, under a clause in the state constitution, similar to that of the United States constitution .in relation to trial by jury; and so free from constitutional objection is the subject there considered, that the court refused to consume time in hearing the question argued. 6 Sergt. & Rawle, 240. 1 Binney, 416.

That a reference of a cause to referees to hear and examine and report thereon, is nota trial by jury in the usual acceptation of the term jury, may not, perhaps, be doubted; nor is it a violation of the constitution of United States to have a jury differing from that known at the common law, which was composed of the number of twelve, as, perhaps for different purposes, as the legislature might think best, they have, (and unquestioned as to constitutionality,) been composed of numbers varying from six to twelve.

The principal object of the institution of trial by jury, seems to have been to give to persons whose rights are to be inquired into, the right to be tried by their peers. If that be true, then are those rights less secure when tried by peers, not, it is true, called jurors, but referees, who are as solemnly sworn as jurors? We cannot imagine that they are. But however differently the mind may speculate upon this subject, we cannot see that this is such a clear case of unconstitutionality as to justify a reversal of the decision *43of the District Court on that point, and declare the law void; particularly, too, when we know that all the errors committed hy those referees may be as fully corrected by the court as though the trial had been by jury before that court.

Under the second error assigned, it was contended, that as the referees had reported to the court all the evidence in the case, as well as their conclusions from it, they exceeded their powers, (deeming them to be to report the facts and not the testimony,) and for that reason the defendant below objected to the acceptance of their report. How far this objection is good, wo shall presently see. It is true,that had the referees made “report of what they allowed of plaintiff’s claim, or disallowed; or what they allowed or disallowed of the claim of offset of the defendant below,” as assigned in the third assignment of error, and here noticed in connection with the second, it might have been a source of further satisfaction to the parties; but had they stopped with such a report, they would have left undone a much move important thing, that is, left the court without the fullest means of ascertaining whether error and injustice had found their way into the proceedings; and, as there is nothing in the law which requires a report of the facts alone, we do not see that there was error in tho report which reported to the court the testimony as well as the sum ascertained by them to be duo from the defendant to the plaintiff; and that they were bound to find the sum due, is evident from the law itself, which is, “ and if the report of the referees or a majority of them, shall be confirmed by tho court, and any sum be thereby found for the plaintiff, judgment shall be entered for the same with costs,” *&c. Wo*cannot therefore see that there was error in the decision of the court in these particulars.

The fourth error assigned, and which, upon an examination of the evidence, we cannot sustain, very conclusively shows that there was no impropriety in that part of the report of the referees, which puts the court in possession of all the testimony.

Finding no objection thus far to the decision of the court below, and seeing *nothing*in the fifth assignment of error beyond matters already noticed, we affirm the judgment of the District Court, with the costs of this case; but as it appears that both plaintiff and defendant were dissatisfied with the judgment of the District Court, as both are here on separate writs of error, and both now before the court, we will now consider the errors as assigned.

*44NELSON R. NORTON, *vs.*JOSEPH ROOKER.

It appears, as has been already stated, that the suit was brought on a note payable in boots and shoes, and in part consideration of an improvement on public lands which was sold by plaintiff to defendant, and as a part of the contract, plaintiff was to dig and complete a cellar, to finish a woodshed, granory and barn, previous to the time of payment of the note. The time fordoing the work and making payment of the note was afterwards, by agreement of the partios, extended. With defendant’s plea of general issue, he gave notice that he would oiler in evidence that the note was given without any consideration; that he claimed as a set-oif a largo sum of money, to wit: the sum of one thousand dollars, for plaintiff’s failing to fulfil a verbal contract to finish certain buildings situate on defendant’s farm, in Burlington, and for failing to build a cellar under the bouse situate on defendant’s farm. In the account filed by defendant in set-off, is contained the items: Damages for not finishing barn according *to contract,*0100; damages for not finishing wood-house according to contract, $100; for failing to stone up my collar, and finish the same, to my damage (’250. Although the notice is very inartificially drawn, we cannot say, that it is so imperfect as to have justified the referees in excluding the evidence.

When it is remembered that this very ¡natter ¡s part of the consideration of the note, and for which it was brought into existence, we think that it was sufficient to notify the plaintiifof the defence intended to be setup by defendant. This notice, though not required to be, in the strict technical form, a plea, (8 John. Eep. 455,) must, nevertheless, contain all *the*facts necessary to bo stated in a special plea; 13 John. Rep. 475; 10 John.Rep. 142; and 8 Wendell, 580. It must also state truly the facts intended to be given in evidence, 14 John. Eep. 89. Where notice *was*in general terms, that the defendant would prove that there were divers judgments, at the time of the sale of the land, outstanding against the plaintiff, which were a lion on *the*land, and which the defendant was obliged to pay, and did pay, in order to prevent a sale of tbe premises, without specifying any particular judgment, Chancellor Kent, in 20 John. Itep. 740, soys, it would bo unreasonable and unjust, that tho plaintiff at the trial should shut out the defence under the pretence that the defendant did not tell him in the notice all the particulars of these judgments, when they *45must have been matters of record, and the defendant stood ready to prove the judgments by the record, and to produce the execution thereon, and provo the payment of them. On the same prin-cipio, in this case, tho note in question, and the matters in de-fence, relate to the same transaction between the parties, and the plaintiff must have known it sufficiently without its being formally stated in tho notice.

Tho referees made a report in favor of the plaintiff,but reduced, by special report, under conditions of law, the plaintiff’s claim', on proof of facts referred ,to in the notice, and on which the court rendered judgment, after objection on part of the plaintiff, that partial failure of consideration could not be given in evidence and entertained, which is tho question now to be considered. On this point, there aro conflicting opinions, but under the more recent and present practice of tho courts, with a view to prevent circuity of action, it is generally allowed. In the Supreme Court of tho United States, it is decided in some cases not to be a defence, which arc collected in a note in 2 Peter’s Cond. Rep. 218; but on examination, these decisions were, probably, mostly made on the general issue. In 2 Wheaton’s Rep, 13, it is decided by the court not to be a defence under the general issue. So this court decides. To give evidence of a partial failure of consideration, a notice must accompany the plea of general issue. 6 Binney, 198. 1 Sergt. *&,*Rawlo, 477. 8 Sergt. & Rawle, 178. 8 Cowen, 31. 2 Wendell, 431. 12 Wendell, 246. 3 Wendell, 236. 4 Wendell, 483. Graham’s Practice, 231, 232. 7 Cowen, 322. 3 M’Cord, 169. 1 Cowen’s Treatise, 174. Bailey on Bills, Boston Ed. of 1826, p. 340, in notes. 3 Kent’s Com. 78, 79, 80.

It is true, that unliquidated damages cannot be off-set, but this is evidence of matters in diminution of the plaintiff’s demand, arising out of the same transaction, and not technically an off-set, although defendant called it so in his notice: yet this is mere matter of form, and not of substance, and does not vitiate the notice, and particularly does it not vitiate in this form of action, which is in its nature equitable.

The third error assigned, that the defendant having once promised to pay tho note in tho hands of an assignee, was ever after barred from setting up a want or failure of consideration, does not appear to have much in it. This note was not negotiable, and it does not appear that the suit was for the use of a third person, *46but on the contrary, all off-sets and accounts between the parties seem to have been gone into. There is nothing appearing on the record but that tho plaintiff was the actual and legal owner of the note at tint time of the suit. The evidence affords sufficient explanation of the circumstances to settle the ownership of the note in the plaintiff. We are therefore, in this branch of the case, constrained to affirm tho judgment of the District Court, with costs.

H. B. Towslkb and Moses M. Stroxg, for Rooker.

Marshall M. Strong and H. 1N[. Wells, for Norton.