#### R. L. CHESSON v. KIECKHEFER CONTAINER COMPANY, a Corporation, and NORTH CAROLINA PULP COMPANY, a Corporation.

(Filed 22 September, 1943.)

1. Evidence § *29:*Trial § 14—

In a trial before a referee, where by written stipulation counsel on both sides agreed, in lieu of offering oral evidence, that the stenographer’s transcript of the sworn testimony of the witnesses at a previous trial of the ease in the Superior Court, together with exhibits, should constitute the evidence before the court, there was no error, when this evidence was subsequently offered before a jury, for the court to .decline to rule on the objections interposed when the evidence was originally offered, it appearing from the record that the only objections originally interposed were to testimony which was competent.

*2.*Constitutional Law § 17: Reference § 8: Trial § 52—

While the ancient mode of trial by jury has been preserved in our present Constitution, Art. I, sec. 19, the right in civil cases may be waived (Art. IY, sec. 13), and in reference cases the failure to except to the findings of the referee or properly to preserve the right to jury trial has been uniformly held to constitute a waiver.

3. Constitutional Law § 17: Reference § 13—

In reference cases the trial by jury is restricted by the statute (C. S., 573) to the written evidence taken before the referee, which sufficiently complies with the constitutional mandate, if the testimony is taken under oath in the manner prescribed by law, with opportunity to cross-examine.

Appeal by plaintiff and defendants from *Bone, J.,*at April Term, 1943, of ChowaN.

*379This was an action to recover damages for tbe alleged breach of contract for tbe cutting and delivery of pulp wood. The case was here at Spring Term, 1939, reported in 215 N. C., 112, 1 S. E. (2d), 337, and again at Fall Term, 1939, reported in 216 N. C., 337, 4 S. E. (2d), 886, where tbe pertinent facts are set out. On tbe last appeal error was found and tbe case sent back for a new trial. Thereafter, at January Special Term, 1941, of Chowan Superior Court, Judge Grady, then presiding, ordered a compulsory reference, to which order both plaintiff and defendants excepted. Tbe referee, from tbe evidence presented, found that no contract bad been entered into between plaintiff and defendants, or either of them, and that defendants were not. liable. IJpon exceptions to the referee’s report, filed by tbe plaintiff, issues were submitted to tbe jury at April Term, 1943, resulting in verdict for plaintiff and an award of $690.79 damages.

From judgment on tbe verdict, plaintiff and defendants appealed.

*J. II. Hall and J. Henry LeBoy for plaintiff.*

*Z. V. Norman and W. D. Pruden for defendants.*

DEFENDANTS’ APPEAL.

Devin, J.

Both plaintiff and defendants excepted to tbe order of compulsory reference entered by Judge Grady, but tbe decision of tbe referee being in favor of tbe defendants, they filed no exceptions to tbe report. However, tbe plaintiff did file exceptions to tbe referee’s findings and conclusions, demanded jury trial and tendered appropriate issues. Tbe defendants moved that tbe report of tbe referee be confirmed. This was denied, and tbe issues which were raised by tbe pleadings and pointed by tbe plaintiff’s exceptions to tbe referee’s findings, were submitted to tbe jury upon tbe evidence which bad been considered by tbe referee, and verdict was returned in favor of tbe plaintiff. Defendants’ motion to confirm tbe referee’s report, on tbe ground that plaintiff bad not preserved bis right to trial by jury, was properly denied.

Defendants assign error in tbe ruling of tbe court in tbe trial below with respect to their right to have their objections to certain testimony considered. Tbe question arose out of these facts. It bad been agreed, by written stipulation, by counsel for tbe parties in tbe bearing before tbe referee that in lieu of offering oral evidence tbe stenographer’s transcript of tbe sworn testimony of tbe witnesses offered in a previous trial of tbe case in tbe Superior Court, together with tbe exhibits, should constitute tbe evidence before tbe referee. When this evidence, which bad been presented to and considered by tbe referee under tbe stipulation, was offered before tbe jury in tbe present trial in tbe Superior Court, it *380was ruled that under tbe terms of tbe stipulation all tbis evidence was in without objection, and tbe court declined to rule on tbe objections wbicb bad been interposed wben tbe testimony was originally offered. Whether tbe court was correct in its interpretation of tbe effect of tbe stipulation need not be decided since upon examination of tbe record we find that tbe only objections there appearing were to testimony wbicb was competent for tbe purpose of corroboration, and tbe jury was so instructed. Hence defendants’ assignment of error based on tbis ground cannot be upheld. It was not contended that defendants could be beard to offer new objections.

Tbe defendants in their argument and brief question tbe constitutionality of tbe statute authorizing compulsory reference as being an infringement upon tbe right of trial by jury. Right to trial by jury is a basic and fundamental feature of our system of jurisprudence. *Jacob v. City of New Yorh,*315 U. S., 752. In North Carolina tbis right has 'been regarded from tbe earliest times as one of tbe safeguards of tbe liberties of tbe people and as one of tbe essentials to tbe due administration of justice. It was provided in our first Constitution, in 1776, that “In all controversies at law respecting property tbe ancient mode of trial by jury is one of tbe best securities of tbe rights of tbe people, and ought to remain sacred and inviolable.” Denial of tbis right by legislative act was held unconstitutional in *Bayard v. Singleton,*1 N. C., 5, in 1787. The identical language of tbe original provision has been preserved in sec. 19, Art. I, of tbe present Constitution. But tbe right to trial by jury in civil cases may be waived (Art. IY, sec. 13, Const, of N. C.), and in reference cases tbe failure to except to tbe findings of tbe referee or properly to preserve tbe right to jury trial has been uniformly held to constitute a waiver. *Brown v. Clement Co.,*217 N. C., 47, 6 S. E. (2d), 842; *Gurganus v. McLawhorn,*212 N. C., 397, 193 S. E., 844; *Booker v. Highlands,*198 N. C., 282, 146 S. E., 68; *Lumber Co. v. Pemberton,*188 N. C., 532, 125 S. E., 119. In tbe instant case tbe defendants filed no exception to tbe referee’s report and waived their right to ask for jury trial. However, tbe plaintiff preserved tbis right and a jury trial was bad. It is true tbe trial by jury in such case is restricted by tbe statute (C. S., 573) to tbe written evidence taken before tbe referee *(Makely v. Montgomery,*158 N. C., 589, 73 S. E., 999), but tbe competency, in proper cases, of written depositions for tbe production of proof in civil actions is unquestioned. C. S., 1809. In such cases, it sufficiently complies with tbe constitutional mandate if tbe testimony was taken under oath in tbe manner prescribed by law, with opportunity to cross-examine. Tbe right accorded tbe defendant in a criminal prosecution to confront tbe witnesses against him does not apply to civil actions. Art. I, sec. 11, Const. N. C.

*381Whether the reference was within the purview of 0. S., 573, is not presented as the defendants did not move to strike out the reference, but on the contrary moved to confirm the report and excepted to the court’s denial of their motion. *Reynolds v. Morton,*205 N. C., 491, 171 S. E., 781; *Brown v. Clement,*217 N. C., 47, 6 S. E. (2d), 842. That the plaintiff’s evidence was sufficient to withstand a motion for nonsuit was decided in a former appeal. *Chesson v. Container Co.,*215 N. C., 112 (114), 1 S. E. (2d), 357.

We conclude that there was no error in the trial below which would warrant another trial of this case.

PlaiNtikf’s Appeal.

The only exceptions brought forward by the plaintiff in his assignments of error relate to the judge’s charge to the jury on the issue of damages. From an examination of the charge on this phase of the case, we are left with the impression that the instructions to the jury were free from error, and that the plaintiff has no just ground of complaint.

On defendants’ appeal: No error.

On plaintiff’s appeal: No error.