legislative, executive, and judicia officers, imply a delegation of a portion of the sovereign power to, and possession of it, by the person filling the office, and that a person clothed with a resolve of the legislature, with no other powers than those of superintending the public lands, and performing certain acts relating to them, under the discretionary regulation of the Governor, was not an officer, and therefore was not required to take the oath.

By section 8 of article 2, of the Constitution of Pennsylvania, adopted in 1790, the Governor is authorized to appoint all officers whose offices are established by the Constitution, or shall be established by law, and whose appointments are not therein otherwise provided for.

In the case of the Commonwealth ex relationi Dr. George F. Lehman vs. Dr. Joel B. Sutherland, 5 Sergt. & Rawle, 145; which was a rule to show cause why leave should not be granted, to file an information in nature of a quo warranto, against Joel B. Sutherland, to inquire by what authority he exercised the office of Lazaretto physician; Chief Justice Tilghman uses the following language: The word, office, is of very vague and indefinite import. Every thing concerning the administration of justice, or the general interests of society, may be supposed to be within the meaning of the Constitution, especially if fees and emoluments are annexed to the office. But there are matters of temporary and local concern, which, although comprehended in the term of fice, have not been thought to be embraced by the Constitution. And when offices of that kind have been created, the legislature have sometimes made the appointment in the law which created them; sometimes given the appointment to others than the Governor; and sometimes given the power of removal to others, although the appointment was left with the Governor. The offcers of whom I am speaking, (says the Chief Justice,) are often described in acts of Assembly by the name of commissioners. Such, for instance, as one employed in the laying out of roads and canals and other works of a public nature. Yet all these perform a duty, or in other words, exercise an office. So, likewise, officers within the limits of a corporation are, generally, appointed by the corporation, unless they concern the administration of justice. And in order to discover in what light this office of physician to the board of health has been viewed, the chief justice traced the health laws from their origin, and satisfied himself

that it has been considered, and justly considered, as an office under the control of the legislature, and subject to their modifications as to appointment, duration, and removal. Judge Duncan, in his opinion in the same case, on page 154, says: that the power of appointment to a new office, without commission from the Governor, in the law creating the office, has freqently been exercised; as the commissioners appointed by the act of April, 1794, to settle the compensation of Pennsylvania claimants for lands within the seventeen townships of Luzerne county. The commissioners are named and appointed by the act, without any intervention of the Governor, except in his legislative capacity of approving the act. These commissioners were in the nature of judicial officers, exercising important and discretionary powers and judicial functions; and although the constitutionality of many portions of that act has been called in question, yet this has never formed an objection. The enumeration of such appointments would be useless. It would be too much now, to pronounce that all this was usurpation on the constitutional rights of the Governor, forbidden by the Constitution, and void. In most cases of local appointments, they are made by the people, or by certain bodies of men authorized by the law creating the office. This act and appointment bear date but four years after the adoption of the Constitution of the State. In the case of the Commonwealth vs. Douglass, 1 Binney, 77, as early as the year 1803, it appears that Douglass had been appointed an inspector of the prison of Philadelphia in pursuance of law. The propriety or legality of the election was disputed, but not the constitutionality of the law under which it was made. Chief Justice Tilghman, in the case of The Commonwealth ex relationi Reynolds vs. Bussier, 3 Sergt. & Rawle, 457, says: it is understood, that in what I have said, I do not mean to include certain officers, (so called, when that word is taken in its largest sense,) of a local, limited, or corporate nature, which have not been supposed to be comprehended in the Governor's power of appointment. By the Constitution of Pennsylvania, art. 5, sec. 2, it is declared, that the judges of the supreme court, and the presidents of the several courts of common pleas, shall not hold ny other office of profit under the Commonwealth. Thomas hile acting as a commissioner to settle the compensa

ts to lands in Luzerne county, above referred to, a president judge; and his acts as such commis

sioner, after he qualified as such judge, were objected to in the case of Shepherd vs. The Commonwealth, 1 Sergt. & Rawle, 1. It was there decided, that the office of commissioner, which Judge Duncan, in the case above referred to, said was in the nature of a judicial office, exercising important and discretionary powers and judicial functions, was not an office within the meaning of the Constitution.

By the same Constitution, art. 1, sec. 18, no person holding any office under the United States, or that Commonwealth, shall be a member of either house of the Legislature during his continuance in office. Charles Biddle, a member of the Senate of Pennsylvania, was appointed by the President of the United States, to act as a commissioner to sign bills or notes, called treasury notes, issued under the authority of the act of Congress, for which he received a compensation. The question was brought before the Senate, who decided that his seat was not thereby vacated; 1 Sergt. & Rawle, 10. The same Constitution declares the holding of offices or appointments under the State, incompatible with holding or exercising offices or appointments under the United States. Under this provision, together with the laws passed in addition thereto, the Supreme Court of that State decided by a majority, in the case of The Commonwealth vs. John Binns, 17 Sergt. & Rawle, 219, that the selection of an editor of a newspapaper to print the laws of the United States, by the Secretary of State of the United States, in not conferring an office or appointment under the United States, incompatible with the office of Alderman of the City of Philadelphia.

The different acts of the Legislature of Pennsylvania respecting the internal improvement system of that State, from 1825 to 1829, authorized the Governor to appoint the Canal Commissioners; but by the act passed in 1829, the power of the Govern-' or to appoint them was revoked, and they were appointed, in pursuance of law, by the legislature. Although the board of commissioners was clothed with immense powers in the disbursement of money, and extensive patronage, it is not, after a diligent research, to be found in the books of reports, that the Governor's rights or prerogative, under the Constitution, which authorized him to appoint all officers, which officers are established by that Constitution, or shall be established by law, were questioned, or that the constitutionality of the law under which the legislature

made the appointment, was brought to the attention of the courts. It is true, that this power was afterwards restored to the Governor by subsequent acts of the legislature, but the precedent remains.

It would be too tedious to refer particularly to all the cases that have been decided in that State, by the people, the legislature, and the courts, giving a construction to the term office, as understood in the Constitution. Many cases, cited by the judges in their opinions, in the causes above stated, and not mentioned here, are referred to.

The Legislative Assembly of this Territory seems to have put the same construction on the term, office, in the organic law, at its first session after the organization of the Territory. By an act approved on the 3d December, 1836, three commissioners were to be elected by joint ballot of the Council and House of Representatives, whose duty was to cause the necessary public buildings to be erected at Madison, for the accommodation of the Assembly and other officers of the territorial government. The treasurer of said board, to be elected under said law, was also to give bond with security for the faithful discharge of his office. Under this law commissioners were elected and qualified, as appears by the public records. This is called an office, so is the commissioner under consideration; so are those generally in the cases referred to; but it appears that they are not such officers as are contemplated by the Constitutions referred to, or our organic law. Motion for mandamus overruled.

STOW & WELLS, for relator.

WHITON & ARNOLD, for respondent.

THE Court will not decide an act of the Legislature to be unconstitutional, unless the case is 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 his 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 to be 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 be 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 cèrtain 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 be legally taken into consideration, confirm both reports and enter judgment for the balance in favor of the plaintiff.

A promise by the defendant to pay a 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 payce 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