author: Dunn, C. J.

text:
    Eaton vs. White.
    1. SLANDER — pleading. In a declaration for slander, the plaintiff may-set forth the alleged slanderous words in various forms of expression in the same count, without rendering it objectionable on demurrer, for duplicity or multifariousness.
    2. Same. Where the slanderous words charged were that the defendant kept a whore house, the defendant pleaded, by way of justification, in substance, that the plaintiff had and kept in his house a lewd woman, who there frequently committed fornication with one C. L. A.; and that by reason thereof the defendant stated, in the conversation alluded to, in substance, that plaintiff allowed whoring to be carried on in his house night after night in succession, without taking measures to stop it.
      Held, that the plea did not answer the declaration, was argumentative, and did not amount to a justification, and was, therefore, had on demurrer.
    3. Evidence. It is a presumption of law, in the absence of any evidence to the contrary, that every witness is a person of truth and veracity ; and it is not error to allow a party calling a witness to prove that his character in this respect is good.
    4. Slander — evidence. In an action for slander, it is not competent to ask of the parties who heard the speaking of the words how they understood them at the time; but it is competent to show the circumstances under which they were spoken, and any explanation of the words given at the time by the defendant.
    5. Same. In an action for slander, it is allowable to show tha1 the defendant, at the time of speaking the words, made such explanation of them as took away the imputation of crime, or to show that the words spoken had reference to a transaction well known, and understood by all his hearers not to be criminal; but, in order to amount to a defense, it must be shown that all who heard the words spoken, understood them in the same restricted or mitigated sense.
    6. Same. Under the plea of the general issue in an action for slander, evidence in justification cannot be received. As to the particular proof offered and excluded, see the opinion of the court.
    ERROR to the District Court for Fond du Lao County.
    The case is fully stated in the opinion of the court.

      T. 0. Howe, for plaintiff in error.

      A. W. Stow, for defendant in error.
   Dunn, C. J.

The action in the court below was on the case, for verbal slander, brought by White against Eaton, and decided at the May term, 1846. The declaration contains but one count, and alleges the same slander, in various modes of expression, and a demurrer was filed to the declaration. It was objected that the declaration was multifarious, repugnant and uncertain. Upon inspection of the record we find that the crime imputed to White by Eaton is that he, White “keeps a whore house,” an indictable defense-if true, and words of slander actionable in themselves. This offense is imputed in various forms of expression, in the present and past tense, and so varied and alleged in the declaration.. Some of the forms of expression alleged, may not by strict construction be actionable in themselves. It is now well settled that the plaintiff may adopt this form of declaring in the same count, and if lie, in any one or moré of the varied forms, alleges the speaking of words not actionable, there being words alleged really actionable, the former, on demurrer, will be rejected as words of aggravation only, and the demurrer will be overruled. The district court decided correctly in overruling the demurrer to the declaration. 5 Serg. & Rawle, 393; 2 Saund. 307, A. and note 1; 2 East, 438; 6 Wend. 407, 412; 3 Wils. 185.

The general issue and a special plea were pleaded after the overruling of the demurrer. The plaintiff demurred to the special plea, and assigned as causes of demurrer, “that the plea, though professing to, does not answer the whole declaration: that the facts set forth in the plea do not amount to a justification; and that the plea is argumentative.” Either of these reasons is sufficient to sustain the demurrer. The doctrine of pleading is too well settled on these points to require comment. The plea is liable to all the objections taken. The substantial part of the plea avers, that “ before the said first day of September, eighteen hundred and forty-five, at Calumet (the time and place of-the speaking) the plaintiff did have and keep in a certain house, which the plaintiff then and there occupied, a certain married woman by the name of S. D., who was a lewd woman, and the said S. D. did, while in the house of the said plaintiff, at divers and frequent times, commit the crime of fornication with one C. L. A., then and there being an unmarried man, whereupon the said defendant saitk that afterward, to wit, on the said first day of September, eighteen hundred and forty-five, he did speak and publish in the presence of William H. Blodgett and Jacob B. Atkins the following words, that is to say, ‘ You call George White a gentleman ; a man that allows whoring to be carried on in his house night after night in succession, and never takes any measures to put a stop to it. If such are your gentlemen, I wish to be delivered from the style and title as long as I live;’ ” concluding in the usual form of a plea of justification. The allegations of the declaration which charge the speaking of actionable words are not answered by this plea ; it is no, justification of actionable words, and is argumentative.

The court below decided correctly in sustaining the de murrer to the plea. 1 Chitty’s Plead. 494.

On the trial, one John Hofscheldt testified on behalf of plaintiff, that among other things, he was present at a conversation, at the blacksmith shop of Mr. Jacob Atkins at Calumetville, between JEtufus P. Eaton, and Hr. Wm. H. Blodgett; that said Eaton appeared very much exasperated at certain proceedings had at a school meeting that day at which the said Blodgett presided; that said Eaton insisted that said Blodgett was not a legal voter. Said Blodgett said he knew nothing about the business; that he went into the meeting and a gentleman asked him to take the chair; that Mr. Eaton exclaimed, “What! do you call that a gentleman, a man who keeps a whore house day after day and night after night ? ” George W. Peatherstonaugh also testified on behalf of the plaintiff, and on cross-examination by defendant testified that soon after the commencement of the present suit, the witness, John Hofscheldt told him (at his request) the language used by the said Eaton at the'shop of Mr. Atkins, but said that the language used by Eaton was, “ He kept a whore house and would do it again.” On examination by defendant’s counsel, he was asked, “What was the character of the said John Hofscheldt for truth and veracity ? ” To this question the defendant’s counsel objected, for the reason that the witness Hofscheldt had not been impeached. The objection was overruled and the question answered. Error is assigned on this ruling of the court below. The defendant attempted in his cross-examination of the witness Peatherstonaugh to weaken or impair the testimony of the witness Hofscheldt and unquestionably the defendant had a perfect right, and it was his duty to the witness to sustain. Mm, by proof of good character, for truth and veracity. It is not required by the rules of evidence to prove for a witness a good character for truth and veracity before it is impeached; the law always presuming so much in favor of every witness. If it were allowed, however, to either party, the other could not assign it as error, as it would be for his benefit if made out, and fatal to his adversary if not proven, after he had undertaken it. We see no error in this ruling of the court below. The plaintiff’s witnesses, Featherstonaugh, Blodgett and Hope, after having proven the actionable words in one or the other of the forms of expression averred in the declaration, were, upon cross-examination by defendant’s counsel, asked, “how they understood the words spoken at the time.” This question was objected to and ruled out by .the court, the judge deciding that the witnesses might and should testify to any explanation given by the defendant of his words at the time they were spoken, but having testified to the words used it was not competent for the witnesses to say how they understood them. This ruling is also assigned as error. It is the settled doctrine, that a defendant in an action of slander, may prove on the trial that, at the speaking of the words, he made such explanation as took away the imputation of crime to the plaintiff; or he may prove that the words spoken had reference to a transaction made known to and understood by all the hearers, and which transaction was not legally criminal, thus showing that the words were spoken in a mitigated sense and not in a sense containing an imputation of crime to the plaintiff.

The question by defendant’s counsel is not embraced in either of these rules. It certainly does not seek to elicit any words of explanation given by defendant at the time of speaking the words ; nor does it tend to show that the words spoken were in reference to a transaction understood by and known to all the hearers, which was not criminal. If it has been proposed by defendant’s counsel to prove by all the witnesses who heard the speaking of the words, that they understood them to refer to a tran-saotion not criminal, then there could have been no objection to questions tending to prove such understanding by each witness who had heard the words spoken. But in this case the witness, Hofscheldt, had been fully examined on direct and cross-examination and dismissed from the stand, without being interrogated by defendant’s counsel as to whether he did or not understand the words in the mitigated sense. It must be shown that all who heard the words spoken, understood them in the same mitigated sense or it will be no defense to the action. The court ruled correctly on this point. Laine v. Wells, 7 Wend. 175; Phillips v. Barber, id. 439.

The defendant, by his counsel, .offered to prove on the trial by John J. Briggs, William McGee and Rev. Henry Coleman, “ that the plaintiff did allow criminal intercourse between Mr. .and Mrs. B — —, at his house with full knowledge of the facts, and without making any objection ; and further, the defendant offered to prove by the same witnesses that the above fact was charged against the plaintiff at an ecclesiastical trial of the plaintiff, had long before the alleged speaking of any slanderous words by the defendant, and upon that trial the plaintiff was found guilty of the above charge and was suspended from the ministry. And further, to prove that plaintiff boarded and supported one of the parties to this intercourse after it had taken place, and endeavored to elevate him to office.”

The court, upon objection being made, refused to permit the defendant to make such proof, deciding “that it would not justify the language used by the defendant, if proved; and that it could not be proved under the general issue.” The proof offered is justification if any thing, and cannot be received under the general issue. The court below decided correctly that the facts would not amount to justification if proven. There is no plea of justification in the case. The ruling was proper. 1 Chitty’ s Plead. 494. We are of opinion that the judgment of the district court of Pond du Lac county be affirmed, with costs. Ordered accordingly.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    Atchison and another vs. Davidson.
    1. Eeoeiver. Eeceivers are appointed for the benefit of the creditors and parties interested, with authority to collect and pay over the assets coming to their hands, and they hold the same in trust for creditors and parties interested, and as officers and agents of the court, in whom the legal custody of such assets is vested.
    2. Same. Where two receivers of the property and assets of a hank were appointed, and they transferred to D. a negotiable promissory note against third parties, part of the assets of such bank, in payment of a demand which he had against it, and there was no proof to show the extent of the authority of such receivers under their’ appointment, or to show that the other creditors of the bank had not been paid, or of fraud or unfair dealing in the transaction. Held, 1. That the presumption was, that the receivers had full power to divide the assets among the creditors of the bank, and that in so transferring the note they had acted within the scope of their authority, and that the legal title to the note passed to D. 2. If the other creditors had not been paid in full, the receivers would be liable for a misapplication of the assets, and, while their act in transferring the note is presumptively legal, it is in this respect at their own risk.
    3. Promissory note —BONA bide holder. ' The indorsement of a negotiable promissory note to a third party before maturity, in discharge and satisfaction of a pre-existing indebtedness, and without notice to him of any existing defense or equity against the same, constitutes such indorsee a bona fide holder thereof. See Stevens v. Campbell, 13 Wis. 375.
    4. Evidence — presumption. The execution and delivery of a promissory note, is prima facie evidence of a settlement and adjustment of all ■ existing demands between the maker and payee thereof.
    ERROR to the District Court for Dane County.
    Tlie facts are fully stated in tlie opinion of the court.

      O. 0. Washburn and A. L. Collins, for-plaintiff in error.
    1. If the plaintiff was entitled to maintain an action on the note declared on, then the defendants were entitled to set off against the same the bills of exchange mentioned in the pleadings.
    2. That the receivers of the Mineral Point Bank had no right to negotiate and give circulation to the assets of the bank, and that as the paper sued on came to the plaintiff through such receivers, he could not maintain an action on it in his own name. Hagedon v. Bank of Wisconsin, 1 Pin. Haxton «. Bishop, 3 Wend. 13.
    Bunn, Jones & Crawford, for defendant in error.
   Miller, J.

The defendant in error was the plaintiff in the district court, where he recovered a judgment. The suit was founded upon a negotiable promissory note, drawn by the defendants, John Atchison and Gfeo. W. Atchison, on the 7th August, 1841, for $1,000, and payable to the order of Samuel B. Knapp two years after date, and indorsed in blank by him to E. C. Knapp, and by him in blank, through which indorsement the plaintiff made title. The defendants, to maintain their defense, called two witnesses, who proved that the note sued on was received by the plaintiff from the receivers of the Bank of Mineral Point; that it was at one time in the hands of said receivers as part of the assets of said bank, and was delivered to the plaintiff in payment of or in exchange for paper liabilities of said bank then held by him. The defendants then offered in evidence a bill of exchange, dated January 30, 1841, drawn by Samuel B. Knapp upon Harvey St. John, in favor of Josiah A. Hoonan or order, for $600, payable at five days’ sight, and indorsed by 1SToonan to Henderson or order, and by him to Douglass, and by him to Horton; the payment of which said bill, 'on the 27th April, 1841, the defendants guaranteed in thirty days, and on the twenty-ninth of May thereafter its payment is acknowledged by Horton. The defendants also offered in evidence one other bill of exchange, dated Mineral Point Bank, March 27, 1841, drawn by Samuel B. Knapp, cashier, for $500, upon J. Smith Homans, in favor of them, the said defendants, and payable sixty days after date. Said bill was indorsed in blank by tbe defendants to Isaac C. Allen and Clifton & Co.

Tbe court decided tbat tbe note sued on, being a negotiable promissory note, tbe fact tbat it came into tbe possession of tbe bank, and was by tbe receivers of tbebank transferred by delivery, before it came due to the plaintiff, a bona fide bolder, for a valuable consideration, it could in no way be invalidated in tbe bands of such bolder; and tbat be could recover on tbe note in this suit against tbe makers, without regard to any defense which might be set up by or between tbe other parties. Tbe court further decided tbat ‘£ tbe bill offered in evidence by tbe defendants in offset, bearing date and becoming mature previous to tbe date of tbe note sued on, tbe presumption was tbat all demands of tbe defendants against tbe bank previously to tbe date of said note bad been settled between tbe defendants and tbe bank. Tbe court further decided, tbat tbe receivers could legally give circulation to tbe note as proven.”

The first and principal question' raised in this case is upon tbe delivery over of tbe note in suit, by tbe receivers of tbe bank, to tbe plaintiff.

Usually receivers are parties appointed for tbe benefit of tbe creditors of a bank, with power and authority to collect and pay over to them tbe assets. In law, tbe cboses in action of tbe bank are in their possession for tbe creditors, and to all intents and purposes are tbe property of tbe creditors. Baxter v. Bishop, 3 Wend. 13. Tbe receivers bold the property and assets of tbe bank in trust for tbe creditors, as tbe agents of tbe court. This court decided in Hagedon v. The Bank of Wisconsin, ante, tbat an attachment could not be levied upon tbe assets of tbe bank, at tbe suit of one creditor of tbe bank, after tbe appointment of a receiver. In the opinion delivered, tbe court remarked tbat “the receiver was appointed to take possession of tbe assets, and keep them safe for those legally entitled to them; and is bound by his bond to account for them. The receiver is a mere récipient or trustee of the property, without power to assign it, or exercise any acts of ownership over it but those of a bailee, and has but a qualified property in it. It is no argument in favor of the plaintiff in error that the ownership of the property attached was not divested from the bank, if the property was in gremio legis, which it then was. If the charter of the bank shall be declared forfeited, it will become necessary to distribute the assets among its creditors, and to accomplish which it is absolutely necessary that the law should take possession of the funds.” These remarks are perfectly correct upon the facts of that case. The receiver was merely a temporary or conditional receiver or recipient of the assets during the pendency of the suit, and had no authority to disburse the funds, or divide the assets to and among the creditors, until the termination of the suit, and after a decree of forfeiture of the charter.

The extent of the authority of the receivers of the Bank of Mineral Point, when they had possession of this note, is not shown, but it is presumed that they had full power to disburse the assets and divide them to and among the creditors, in the absence of proof on the subject, and from the fact that this note was paid over to a creditor of the bank in negotiation of his claim. And what time this note was in their possession is not shown. When and how they settled their accounts, or whether or not the creditors have all been paid, nowhere appears. The presumption is that the receivers have discharged the duties of their office. There is nothing in the case to raise even a presumption of fraud or mismanagement, or waste or favoritism. The delivery over of this note to the plaintiff in payment of his debt does not show it. The plaintiff could not have compelled them to deliver him this note in such payment, but they could. do so voluntarily, being responsible to the other creditors for waste or misappropriation of the fund, in case of a deficiency of assets. Whether there was a deficiency of assets is not shown ; hence the presumption is that the plaintiff was legally entitled to the full amount of this note.

Such transactions on the part of executors and administrators are common, but are always voluntary and at their risk. It is a short and legal manner of settling the claims of a creditor, if no one is injured thereby. The plaintiff had a just claim against the bank, and he could legally receive this note in payment thereof. The defendants cannot raise this as an objection to his title thereto, or his right to receive the amount of it.

The bills of exchange are dated and made payable some months before the date of this note. For aught that appears, they came to the hands of the defendants and were in their possession before the date of the note, and before it became the property of the bank. No doubt the presumption arises that they would not have given their note to Knapp (or to him for the bank) if such were the case, if they then held the bills of exchange against him or the bank unsatisfied. But be that as it may, there cannot be any essential error in that part of the opinion of the court. There can be no objection to it as a principle of law. The note in suit is a negotiable promissory note, indorsed and transferred to the plaintiff before due, in the ordinary course of business, for a valuable consideration, without notice, the defense offered could not be received against him, either in payment or offset. Swift v. Tyson, 16 Pet. 1; Baxter v. Bishop, 3 Wend. 13; Smith v. Von Loan, 16 id. 659; Raymond v. Wheeler, 9 Cow. 295. It is therefore, the opinion of the court that the judgment be affirmed. Ordered accordingly.


author: Milleb, J.

text:
    McNulty vs. Batty and another.
    1. Attachment — practice. Under an attachment law which allowed the plaintiff and other creditors of the defendants, to come in and file separate 1 declarations on the claims which they might have, admissible under such law, and have separate judgments thereon, and which allowed the plaintiff who brought the action, a priority over the rest. Held, that as the plaintiff in his affidavit for the attachment had confined his claim to the amount due on a certain judgment therein specified, that he could not be allowed to file and maintain counts for other causes of action admissible under the attachment law and not set forth in such affidavit, and that counts founded on causes of action not so set out were properly stricken out. The case of Bowen v. Ta/ylor, a/nte, commented on, explained and re-affirmed. If the plaintiff had set forth in his affidavit all the claims declared upon, he could have recovered upon them, if proven, and maintain his priority over other creditors.
    2. Pleading- — regularity. It is an indispensable pre-requisite that the declaration shall adhere to the form of action adopted in the process and that it conform thereto; otherwise it may be set aside on motion.
    3. Pleading. Where in an action on a judgment record, the defendant pleads a reversal of such judgment by an appellate tribunal and concludes by a general verification, such plea will be held defective on special demurrer, as it should conclude with a verification prout patet pe/r recordam; but if such demurrer thereto be overruled and the plaintiff takes issue on the plea and it is found against him; upon error, held, that the error is of form and not of-substance, and is waived by pleading over and going to trial. Defects in form, in pleas, are aided by the plaintiff replying to them.
    4. Error. A court of error will not reverse a judgment or decree, for the violation or non-observance of some abstract principle of law, when it is manifest that the party complaining has not and cannot sustain any injury by it.
    5. Same. Where points of law have been ruled against a plaintiff erroneously, but it is at the same time manifest that he cannot recover in the action, a judgment against him if reversed will be without costs, and without an order for a venire facias de novo.

    6. Evidence — practice. The plaintiff in error is as a general rule confined to the objections to evidence taken at the trial and stated in the bill of exceptions • and a court of error will permit no objections to be made which were not urged in the court below. Objections to evidence which are general and do not point out with reasonable certainty the ground upon which they rest, will be held to be too general and of no avail.

      ERROR to the District Court for Iowa County.
    The case is fully stated in the opinion of the court.

      Dunn, Jones & Crawford, for plaintiff in error.

      O. C. Pratt, for defendant in error.
   Milleb, J.

The plaintiff in error commenced suit by attachment against the defendants. The' affidavit of the plaintiff for the writ set forth the debt claimed, to be founded upon a record of a judgment in Illinois, and stated that the defendants were non-residents of the Territory. The sheriff returned the writ served by attaching property of Legate, one of the defendants, and that the defendants were not found.

At the second term, the plaintiff filed a declaration in the cause upon the said judgment record, and also with two additional counts upon other causes of action. The defendants before plea filed, moved the court to strike off all the counts in the said declaration, except the said count upon the judgment record, and that the plaintiff be confined thereto, which motion was allowed by the court. This is the first error assigned.

To authorize an attachment, the defendant must be indebted to the plaintiff in a cause of action arising out of, founded upon or sounding in contract, or upon the judgment or decree of some court of law or chancery. The affidavit required by the act upon which the writ is to be allowed must state the nature and amount of the plaintiff’s demand; by section 7 of the act concerning the writ of attachment, at or before the second term the plaintiff, and every other creditor of the defendant, may file their declarations setting forth in a proper manner them cause of action, and the defendant may plead to any or all of the declarations which may be filed against him. But if the defendant shall not plead as aforesaid, the court at the said second term shall proceed, at the suit of all the said plaintiffs, as in other cases of default. In the case of Rowen v. Taylor, ante, this court decided that the plaintiff could file a declaration on the claim upon which the attachment was allowed, and also additional declarations, as other creditors, on other and different causes of action, but there must be a separate judgment on each declaration filed. In that case the plaintiff had declared upon a judgment record and other matters, and also upon a contract. The cause was tried upon the two declarations, and the court arrested the judgment. Which of these declarations set forth the debt upon which the attachment was allowed is not stated, but the principle of that case supports the decision of the court in this case, as far as it goes. It is true that one declaration was upon a judgment record and other matters, but there can be no objection to that manner of pleading, for debt on bond, or other specialty may be joined in the .same action with debt on a judgment or simple contract. 1 Chitty’s Pl. 199; Union Cotton Manf. Co. v. Lobdell, 13 Johns. 462. In the same manner might the plaintiff declare in this case, if he had set forth all the debts or claims declared upon in his affidavit. Whether the judgment record and other matters declared upon in the case of Rowan v. Taylor were all in the affidavit or not, does not appear, but it nowhere appears that there had been a motion to strike off any of the counts. That case is not a precedent for the manner of declaring by the plaintiff in this suit, for this particular point was not raised.

As by the act, the plaintiff must particularly set forth in his affidavit the nature and amount of his debt, and as the attachment is a process to compel a non-resident to appear, by means of his property, the law seems to require peculiar strictness in the proceeding, and does not allow an attachment to issue for more than the debt sworn to, nor require the defendant to answer to more than that one debt in that particular suit. By the act, the attaching creditor is to be first paid out of the property attached, which is an additional reason for confining him, in his declaration, to the debt sworn to; for if he should be allowed to add counts upon other and different claims, lie might recover a general verdict for more than the debt for which the writ was allowed, and would thereby overreach the other creditors who may have filed their declarations. In order that the plaintiff in the attachment may have full justice, the law is so construed that he, and all other creditors may file declarations for debt or claims other than the one set forth in the affidavit but each one of these declarations must form a separate suit, having reference to the original attachment, and upon which a separate judgment is to be entered.

It will be observed in Chitty’s Pleading, 253, 254, that in England it is an indispensable prerequisite of every declaration that it substantially adhere to the form of action stated in the process, and if it deviate, the declaration may be set aside for irregularity. But the objection is not a ground of demurrer to the declaration, but merely of a summary application to set aside the declaration for irregularity. It is well settled that courts have the power to strike out faulty or sham pleadings. Graham’s Prac. 217; 2 Cow. 634; 1 Arch. Prac. 90, 103, 104, 190. The case of Barry v. Taylor, 1 Pet. 311, referred to, is not in point, because the defendant appeared, entered the bail and pleaded, without raising any objection to the variance between the account filed in the attachment and the declaration. It was proper therefore, for the court to strike off those counts.

The defendant then filed the plea of nul Mel record, and a special plea, setting forth that the said judgment declared upon had been reversed by the supreme court of Illinois, and concluded with a general verification, to which the plaintiff demurred specially, alleging for cause that the said plea should have concluded with a verification by the record. The court overruled this demurrer, and the parties then voluntarily joined issue and proceeded to the trial thereof by the court. The overruling of this demurrer is the second error assigned.

The plea set forth affirmatively matter of record, and should have concluded with a verification; prout per patet, per recordam. 1 Chatty’s Pl. 404, 591; Lilly’s Entries, 644, 645; Mansel on Bern. 99, in 16 Law Library, and cases there cited.

In this decision of the court there is error, but it is an error more in matter of form than substance. The parties afterward put the case to issue, upon which final judgment was rendered by the court. The proper order for the court would have been, to have sustained the demurrer with leave to the defendant to amend ; and if the judgment should be reversed here for this reason, the amendment would be allowed. As this merely relates to matter of form, not in the least affecting the rights of the plaintiff, and was followed by pleadings upon which' judgment was rendered, it might be proper to consider the amendment as made, or the objection as waived for the sake of substantial justice between the parties. Albright v. McGinnis, 4 Yeates, 517.

The business of a court of error is not with abstract principles, but with injuries from the application of them. A judgment will not be reversed’ on a writ of error, where it appears that 'the parties sustained no injury from the error. Overly v. Paine, 3 J. J. Marsh. 717. Where a party has sustained no injury by the _ rejection of admissible testimony, he cannot avail himself of the mistake to reverse the judgment. Smith v. Ruecastle, 2 Halst. 357. Nor will an erroneous instruction of the court, which works no prejudice to 'the party, form a ground for reversal of the judgment. Basly v. Chesapeake Ins. Co., 3 Grill. & Johns. 450.

A court of error can follow incompetent evidence or a misdirection to the jury (into the jury box) to ascertain its operation, and will not reverse a judgment if the party has not been prejudiced. Wolverton v. Commonwealth, 7 Serg. & Rawle, 273; Faulcon v. Harris, 2 Hen. & Munf. 550; Campbell’s Ex’rs v. Calhoun’s Adm’rs, 1 Penn. 140; Allen v. Rostain, 11 Serg. & Rawle, 374; Johnston v. Brockbill, 1 Penn. 364. Defects of form of, in pleas, are aided by the plaintiff’s replying, Story’s Pl. 52; 1 Chitty’s Pl. 671, and cases there cited; bnt whether the plaintiff, by his voluntary replication concluded himself, need not now be decided.

We are of opinion that the error complained of, being followed by the parties pleading to issue, and a judgment upon the merits of that issue, has not so prejudiced the plaintiff as to require a reversal of the judgment, particularly as it is certain that the plaintiff cannot recover. Evans v. Gee, 11 Pet. 80; United States v. Carlton, 1 Gallis. C. C. 400. Even if this court should feel justified in reversing the judgment, upon this assignment of error, it should be without costs and without an order for a venire facias de novo. Miller v. Rallston, 1 Serg. & Rawle, 309; Reed v. Collins, 5 id. 351; Ebensoll v. King, 5 Binn. 53.

For these l'easons the court will not reverse the judg • ment upon this assignment of error.

The third error assigned is, for allowing the transcript of the judgment of the supreme court of Illinois to be read, as the same was not legally authenticated. Upon examination of the record and bill of exceptions it will appear “that the defendant’s counsel offered to read the transcript, purporting to be from the records of the supreme court of Illinois, of the reversal' and setting aside of the said judgment declared on by the plaintiff, upon a writ of error. To the reading of the said record, the plaintiff, by his counsel, objected; but the court overrated the objection and permitted the same to be read, to which the plaintiff, by his counsel, excepted.

It appears that the ground of objection to this evidence is first made upon the record in this court. The general rule is that the plaintiff in error is confined to the objections taken at the trial and stated on the face of the bill of exceptions. Boring v. Shippen, 1 Binney, 168; Wolverton v. The Commonwealth, 7 Serg. & Rawle, 277. On a bill of exceptions to the admission of a paper for want of proof of authenticity, a court of error will permit no objection to be made which, was not nrged below. Burke v. Myers, 6 Serg. & Rawle, 12; Parnell v. Sedgwick, 5 Wheat. 336; Hinds' Lessee v. Longworth, 11 id. 199. In Camden v. Doremus, 3 How. 515, the supreme court refused to pass upon an assignment of error, where a bill of exceptions and record were returned as in the case now under consideration. The judge in his opinion remarks that “after each deposition offered in evidence by the plaintiff, it is stated that to each reading of such deposition the defendant, by his counsel, objected, and that his objection was overruled. A similar statement is made with regard to the record of the suit instituted in the court of Hinds county. With regard to the nature- and import of this objection, we would remark that they were of a kind that should not have been tolerated in the court below, pending the trial of the issue before the jury. Upon the offer of testimony oral or written, extended and complicated as it may often prove, it could not be expected, upon the mere, suggestion of an exception which did not obviously cover the competency of the evidence, nor point to some definite or specific defect in its character, that the court should explore the-entire mass for the ascertainment of defects, which the objector himself, either would not or could not point out. It would be more extraordinary still if, under the mask of such an objection or a mere hint at an objection, a party should be permitted in an appellate court to spring upon his adversary defects which it did not appear he ever relied on ; and which, if they had been openly and specifically alleged, might have been easily cured.

It is impossible that the court can determine, or do more than conjecture, as the objection is stated on this record whether it applied to form or substance ; or how far in the view of it presented to the court below, if any particular view was so presented, the court may have been warranted in overruling it. “We must consider objections of this character as vague and nugatory, and if entitled to weight anywhere, certainly as without weight before an appellate court.” It is the decision of this court, upon the authorities cited, that where a general objection is made in the court below, to the reception of testimony, whether oral or written, without stating the grounds of the objection, it will be considered as vague and nugatory, and should not be tolerated in the court below. It is therefore ordered that the judgment of the district court be affirmed.


text:
    Messenger vs. Miller and others.
    1. Sale op squatter’s claim — consideration. Where a note and a mortgage securing the same, on certain lands to “which the mortgagor afterward acquired title, were given for a mere squatter’s' claim on the public lands, upon which the improvements were trifling, and were not, in fact, made by the payee of the note, and to induce him not to bid on the land at the sale, and which claim was likely to be defeated by a sale of the land by the United States, JBeld, that the note and mortgage were void for want of consideration, and there being no covenant of warranty in the mortgage, even if there were a valid consideration for the note, the land in question would not be bound for its payment.
    3. Contract — consideration. A moral or equitable obligation is a sufficient consideration for a promise, but there must be some benefit arising to the promisor, or loss or detriment to the promisee, in order to constitute a valid consideration.
    3. Estoppel. If the complainant had taken an assignment of the note and mortgage on the faith of representations on the part of the mortgagor that the note and mortgage were valid obligations, he would be bound thereby; but having taken the assignment in question after the maturity of the note, he is affected with full knowledge of the facts ; and in the absence of any such assurance or representations, the mortgagor and those claiming under him are not estopped from insisting that the note and mortgage were void for want of consideration.
    APPEAL from the District Court for Walworth County.
    Tbe case is fully stated in tlie opinion of tlie court.

      Lem Hub!) ell, for appellant.

      O. M. Baker and II. N. Wells, for appellees.
   Miller, J.

The bill in this suit is for the foreclosure of a mortgage given to secure the payment of a promissory note, bearing date February 23, 1839, and payable to one Milton Charles. Said mortgage is in the usual form, upon a quarter section of land, describing it, with a. covenant to pay the amount to said Charles, his executors, administrators or assigns. The bill sets forth that the complainant is not certain that the defendant Miller was the owner in fee of the land at the date of the mortgage, but believes he was, and charges that, if he was not the owner thereof, he did subsequently acquire a good title, which complainant claims, should in equity operate as a confirmation of said mortgage, inure to his benefit, and be vested in him. Said mortgage was assigned, first to Merrill, then by Mm to Lane, and by him to the complainant. It is stated also in the bill that Miller afterward sold or mortgaged said mortgaged premises to Loomis, one of the defendants, and that Loomis mortgaged or sold the same premises to William Bowen, another of the defendants, and that said Bowen sold or assigned his interest to William B. Elliott, the remaining defendant. The said defendants Miller and Loomis filed their answer to said bill. In their answer the mortgage is confessed, and it is alleged that, in the year 1837, said Miller purchased of said Charles a claim to tracts or-pieces of land, including the land mortgaged, for the consideration of $400; that at that time said Milton Charles did not own the land, but that it belonged to the United States, and that this claim belonged to tbe brother of said Charles, who had abandoned it and left the country. There was no house or improvement of any kind on the land, except a small patch which had been broken, not fenced nor cultivated ; that said Charles had agreed to get out about two thousand rails for said Miller, wMch agreement had not been performed. Defendants further state that they did at Various times make payments to said Charles on account of said purchase, until the said sum agreed to be paid was reduced to $150, the amount of the note and mortgage; that at the date of the mortgage the land had not been sold by the government, and that all the interest they then had was a bare possession, which was liable to be defeated by a government sale; that there was no covenant of warranty in said mortgage of the title which they might acquire. After the execution of said note and mortgage, the said premises were sold by the government to said Miller, when said Miller, for the sum of $1,000, mortgaged the said premises to Loomis, and afterward, for a valuable consideration, conveyed the premises to him in fee. The other two defendants did not answer.

The suit was tried upon bill, answer, replication, exhibits and proofs. It appeared in evidence, that the land was sold by the government to Miller, on the 26th February, 1839, three days after the date of the mortgage ; also, that the note and mortgage were given upon a settlement of the difficulties then existing between the parties, respecting their respective rights to bid for the land ; and that Loomis, Miller and Merrill were present at, and assisted in the transaction. Merrill paid the note to Charles after it became due, with the approbation and at the request of Miller and Loomis ; and in pursuance of a previous agreement, on his part, to pay the money if they did not. He took an assignment from Charles of the mortgage. When the note and mortgage were given no objection was made on account of the rails; nor no new engagement to get them out was required. It was also proven that all the breaking done was about two acres and worth $50 ; that all that was done on this land, previous to the original contract between Charles and' Miller in 1837, was done by Luther Charles, the brother of Milton, in the year 1836. The man who did the breaking, proved that Luther Charles employed him to break; that he broke about half an acre on this quarter section, for which he was paid by Luther the sum of $10; that there was no fence nor house on the land; that Milton Charles made no claim to the land nntil the year 1837, and not nntil after his brother Luther had left the country. It appeared, also, that Miller conveyed the premises to Loomis in the month of October, 1839. The first point presented is want of consideration. It appearsthat the sum of $400 was, in the year 1837, agreed to be paid by Miller to Charles for his claims ; and that in the year 1839, when the land described in this mortgage was about being sold by the government, Miller and Loomis .gave Charles this note and mortgage for the residue of the purchase money aforesaid, upon settlement of their difficulties, which induced him not to trouble Miller at the sale by bidding, in competition, for the land; and that Merrill then, also, came under a verbal engagement or promise to pay the amount if they should fail to do so. It is not pretended that the parties contracted to sell and convey, on the one side, and to purchase, on the other, the fee of the land. It was merely a purchase of a naked claim to or upon public land, or rather a pretense of claim. A moral or equitable obligation is a sufficient consideration for an assumption. Clark v. Herring, 5 Binn. 33. But there must be some benefit arising to the defendant or some injury or loss to the plaintiff. Austin v. McLure, 4 Dall. 226; Waters v. Miller, 1 id. 369; Hemabee v. Eberley, 2 Binn. 509; Doty v. Wilson, 14 Johns. 378; Smith v. Ware, 13 id. 257. Milton Charles, the payee of this note, did not make the improvement or do the work, but his brother, Luther Charles did. The ploughing was done by Luther in 1836, who disappeared, and the year after, Milton sold to Miller. Milton neither worked nor expended money, nor had the actual possession. There was no house or fencing on the land. He had no authority to put Miller into possession or give him seizin ; nor could he legally transfer to Miller any authority, or right to purchase the land at the sale in preference to himself or any other person. There was neither in law or fact the least-loss or injury to the plaintiff, nor accommodation to the defendant. Half an acre of broken land in a prairie, uncultivated, without fence or house, cannot be an accommodation or benefit to a purchaser of a half section. of land, for farming purposes, worthy his consideration. The land being vacant, Miller has as good a right to enter upon it as Charles. Neither had any legal right.

The note and mortgage being given two years after the alleged agreement of sale, are not thereby any more obligatory than if given at the time. No additional consideration passed, no additional reason is given, except that Charles was thereby satisfied, and did not bid at the sale in opposition to Miller. This, in law, is no consideration for an assumpsit or undertaking. Miller had the same right to bid at the sale that he had, and if he chose to withdraw all competition as a bidder in opposition to Miller in consideration of this note, he certainly did not thereby add to Miller1 s obligations, or' strengthen the consideration. It is contended that the defendants are concluded or estopped from setting up this defense, on the ground of the payment of the money by Merrill to Charles at their request, their promise to pay him the amount, and the subsequent assignments of the note and mortgage by Charles to him, and from him through Lane to the complainant. It appears that Merrill came under some verbal promise to pay this debt to Charles, if Miller and Loomis should fail to do so. At their request he paid it. He knew of the transaction, and the reason why the note was given. He was aware of all the circumstances attending it when he paid the money, and was not deceived nor defrauded by Miller or Loomis, or induced to pay the money through any concealment of facts or misrepresentation on their part. He paid the money as a surety or a friend, with full knowledge of the facts. The law is so well settled as not to require citation of authority, that if he had paid the money and taken an assignment of the note and mortgage innocently, at the request of the makers, that they .would be bound thereby, and could not set up any defense as against Mm, either in law or equity, connected with the original consideration. If he paid the money as surety, he had a good cause of action against them, even without their promise to pay. But these defendants are not estopped or concluded in tMs suit. The complainant took an assignment of this note after it became due and dishonored. This was sufficient to put him upon inquiry. There is no direct privity of contract between this complainant and the defendants, nor does the transaction with Merrill create such a contract or obligation as runs with the note 'and mortgage. The complainant was not induced to take the assignment, and become the purchaser by the defendants. This disability prevails oMy in favor of the person who has acted upon or been drawn in by the acts, misrepresentations or conduct of the defendants. Jennings v. Whitaker, 4 Monroe, 31; Tefts v. Hayes, 5 N. H. 452; Welland Canal Company v. Hathaway, 8 Wend. 480. The note and mortgage having come to the hands of the complainant after due, are subject to all the equitable defenses that they would have been in the hands of the original party, and it is competent for the defendants to make tMs defense. It is entirely unnecessary to decide whether or not the defendants, as mortgagors, can dispute the title, or set up an outstanding title, or whether or not the subsequently acquired title of defendants inured to the benefit of the mortgagee and his assignees, or whether or not the purchase money unpaid is a lien upon the land. The defense of want of consideration prevailing, these points do not necessarily arise.

The decree of the district court dismissing the bill must be affirmed. '


author: IeyiN, J.

text:
    Moffatt vs. Shepard and another. Shepard and another vs. Moffatt.
    1. Resulting trust. Where M. placed in the hands of his agent certain property, with authority to sell the same, and such agent, with, such property or the proceeds thereof, in part purchased real estate and took a deed thereof in the name of a third party, who had notice of the facts, held,, that there was a resulting trust in favor of M., and that he might elect to hold the land as security for his money or take his proper part thereof in satisfaction of the means thus used.
    2. RESULTING TRUST— INJUNCTION — notice — decree. S. and B. having purchased and obtained a deed for a part of said premises, in violation of an injunction issued in a suit brought by M. against such grantee to enforce his equitable rights, and with notice of them and of the pen-dency of such suit, held, that their rights were subordinate and subject to the rights of M.; that they should be decreed to convey and release with covenants as to thair acts, to M. all title acquired by such conveyance, but it should not be adjudged null and void.
    APPEAL from- the District Court for Milwaukee County.
    The facts are stated in the opinion of the court.

      Randall <& Ogden, for William B. Moffat, appellee.

      Finch <6 Lynde, for Shepard & Bonnell, appellants.
   IeyiN, J.

This case is brought here on an appeal from the decree of the district court of Milwaukee county, and, inasmuch as it is intimately blended with another case (brought here also by appeal), a bill of review in the same court, by the defendants Shepard and Bonnell against Moffatt, the complainant, it is thought most expedient to examine the two cases together so far as it may be done..

It appears that some time previous to the commencement of either of the cases brought to the attention of the court by the parties, William B. Moffatt, the complainant, placed in the hands of John M. W. Lace certain property and eifects to dispose of as Ms agent; that said Lace afterward purchased the lot in question and partly paid for it with, the said property and effects, and procured a deed of it to be made to John W. Whiting; that afterward the said Moffatt commenced a suit in equity in the court aforesaid against said Whiting, to secure to himself the benefit of the resulting trust; upon which suit, not only was issued and served on the said Whiting the process of subpoena, but also an injunction enjoining and restraining him and his agents and attorneys from selling, or in any manner incumbering said lot; that after the service of said process, and during the pendency of said suit, Lace, by a power of attorney from Whiting, conveyed by deed the premises to the defendants Shepard and Bonnell; that afterward, before the court in vacation, the said MoffoM and Whiting agreed between themselves that Moffatt should take a decree for the whole of the premises and then convey back to Whiting twenty-three feet thereof, which agreement being produced before the chancellor, and all things therein being complied with, it was so decreed accordingly' Afterward the said Moffatt, in order to remove the cloud and clear up the doubt which hung over his title by reason of the deed from Whiting (by his attorney Lace) to Shepard and Bonnell, filed the bill in this cause against them to have the said deed declared null and void, and they be decreed to release the premises to him, which, upon the hearing of the case, was decreed ; that previous to said decree, and about the time when said Shepard and Bonnell answered, they filed a bill of review in the case of Moffatt ». Whiting. The court refused to review that case, and decreed accordingly. Upon these proceedings, both cases are brought here, and in this connection are to be examined. In relation to the last bill and decree, it is insisted that the complainant’s bill ought not to be entertained, for the reason that they, Shepard and Bonnell, brought themselves voluntarily into the interest which they assert and claim, not only with a knowledge of the pendency of the suit between Moffatt and Whiting, but in open violation and contempt of the injunction issued therein. That they had a knowledge of the pendency of that snit, and of the existence of the injunction, we cannot for a moment donbt, and they cannot be relieved from the stringent application of the law in such cases. That Moffatt, judging from what appears in the cases before us, was entitled to the benefit of the resulting trust there can be no doubt; and that he might elect, under the circumstances, to hold the premises as a security for his interest, or take the proper part in discharge thereof, there is little doubt. 2 Story’s Eq., §§ 1258, 1259, 1260, 1261, 1262; Phillips v. Cramond, 2 Wash. C. C. 441.

Shepard and Bonnell having voluntarily placed themselves in the interest which they assert, in the face of the suit then pending and in contempt of the injunction, can claim no protection therein, and must necessarily have the review refused and their bill, so far as it relates to Moffatt, dismissed at their costs, which is so ordered. In the case of Moffatt v. Shepard and Bonnell, prosecuted by Moffatt to clear his title acquired under the decree of the court, in the case of Moffatt v. Whiting, of the doubt which the defendant had thrown over it, the court is clearly of opinion that the facts and circumstances authorize the relief asked for, and among others, for the same reason given for refusing the review sought by the defendants. We are, however, of opinion that the district court, in granting relief, went too far in the decree, to no other extent, however, than a seeming inconsistency of one part of the decree with the other, in this: the decree rendered null and void the deed from Whiting by John M. W. Lace, his attorney, to Shepard and Bonnell, dated April 30, 1845, and then required of them to execute a deed for a part of the premises included in the deed thus declared null and void, to the said Moffatt. The court should not have declared the deed void, but it should have decreed a conveyance of all the interest which Shepard and Bonnell had acquired by that deed in’ the-premises, to be made to the complainant Moffatt (so ffir as it affects his interest), with a special warranty, and it must now be so done. And it is decreed accordingly.

“ This canse having come to a bearing on tbe pleadings and tbe proofs (having been argued by counsel), and tbe court having duly considered the same, with tbe stipulation on file, it is adjudged and decreed that tbe said Clarence Shepard and James Bonnell do, within thirty days, execute and deliver to tbe said complainant, William B. Moffatt, a proper deed of conveyance, properly executed, witnessed and acknowledged, with special warranty against their own acts and all persons by, through or under them or either of them, of twenty-two feet, undivided, in the said lot number four, in block number four, in the third (formerly east) ward of the city of Milwaukee, and that they pay the costs of this suit.”


author: Millee, J.

text:
    Bird vs. Fake and others.
    1. INTERPLEADER. A bill of interpleader is maintainable only where tbe complainant claims no relief against either of the defendants, who claim of him the same debt or duty by different or separate interests or titles, and he is uncertain with which of the claims he ought to comply. In such case he may file a bill of interpleader and for leave to pay the money or deliver the property to whom of right it belongs and that he may be thereafter protected from the claims of both.
    2. Same. A bill of interpleader ought to be filed immediately after or before the commencement of proceedings at law, and should not be delayed until a verdict and judgment have been obtained; accordingly where such bill was filed after verdict and judgment obtained by one of the parties, and an injunction against the claims of each had been granted on the money being paid into court, the injunction was dissolved and the money applied to the payment of the judgment, notwithstanding the parties had come in, as the complainant had not satisfactorily accounted for the delay in filing the bill.
    3. Same. Where the complainant in a bill of interpleader stood a trial at law, and upon judgment being given against him, prosecuted a writ of error upon which the judgment was affirmed, and awaited a suit on the supersedeas bond before filing his bill, and did not give any reason for his delay in filing it, and the circumstances tend to show that he did not consider himself solely in the light of a stakeholder, hut rather as an adverse party resisting a recovery to the extent of the law; the bill should he dismissed.
    4. Same. In order to maintain a hill of interpleader the complainant must set forth and show in what particular way or manner each party asserts and may establish his liability to him and the nature and character of the claim made by each.
    APPEAL from a decree of the District Court for Dane County.
    The facts are fully stated in the opinion of the court.

      Gollins & Sutherland, for complainant.

      John Gatlin, for defendants Fake & Gotton.

   Millee, J.

Augustus A. Bird, the appellant, by his bill of complaint represented that in the year 1839, the defendants, James Morrison, Henry Fake and Lester H. Got-ton, entered into partnership in keeping and carrying on the American Hotel at Madison; that said partnership continued for about one year and during said term the complainant became indebted to said firm. That while the defendants were negotiating a settlement of the partnership concerns, and while said debt remained unpaid, it was agreed between the said defendants, that the amount of said debt should be set off to Morrison, and that it was charged in the accounts of said partnership to Morrison, as so much received by Mm out of the partnership funds, and that the said amount was allowed to the other defendants in said settlement; and that said sum or claim became vested in Morrison. Said complainant, under said belief, made an arrangement with Morrison in a business transaction, and placed in his hands security full and ample for said debt, which remains irrevocable and not voidable in law by complainant. Afterward Fake & Gotton commenced a suit at law for the recovery of said debt, and recovered a judgment therefor, wMch was affirmed in the supreme court, and that a suit had been commenced by said Fake & Gotton against complainant and his sureties, on the supersedeas bond filed, when the writ of error was sued out, to recover the amount of said judgment; that said Morrison claims the amount of said judgment, as well as the said Fake & Cotton, and therefore prayed a decree of interpleader. The complainant brought into court the amount of said judgment. All the defendants filed their separate answers, Morrison claiming the money by virtue of said alleged transfer and arrangement, and Fake & Cotton denying the existence of any such arrangement, and claiming their right to the money as acting partners of the firm and as plaintiffs in the judgment. The suit was heard upon the bill and answers, and the bill was dismissed; and the court further ordered that the money in court be paid out upon the judgment of Fake & Cotton. It is the opinion of the court that this bill should not be sustained. A bill of interpleader is where the complainant claims no relief against either of the defendants, claiming of him the same debt or duty, by different or separate interests, he being uncertain with which of the claims he ought to comply; in which case he may apply to the court by a bill of this nature for leave to pay the money or deliver the property to whom it of right belongs, and that he may thereafter be protected from the claims of both. Bedell v. Hoffman, 2 Paige, 199; Mitf. Eq. Pl. 48; 2 Barb. Ch. Pr. 117. And the object of the bill is to protect a complainant standing in the situation of an innocent stakeholder. A bill of this kind ought to be filed immediately after or before the commencement of proceedings at law, and should not be delayed until a verdict or judgment has been obtained; and therefore, where an interpleading bill was filed after a verdict had been obtained by one of the parties and an injunction had been granted, on the money being paid into court, the court dissolved the injunction though the parties had come in, the plaintiff not satisfactorily accounting for the delay in filing his bill. Cornish v. Towner, 1 Younge & Jer. 333.

This case is adopted as authority for the rule on this subject in 2 Barbour’s Ch. Pr. 120. We have no doubt of the propriety of this rule and of its application to this case. There had been a trial, judgment, writ of error, affirmance of the judgment, ante, and a suit upon the supersedeas bond before the complainant filed this bill. The legal right of the plaintiffs in the judgment to have execution for the amount of the judgment levied upon the property of Bird was determined. The complainant does not pretend to give any reason for the delay. All the circumstances tend to show that he did not consider himself solely in the light of a stakeholder, not knowing to whom to pay funds acknowledged to be in his hands, but rather as an adverse party, resisting the recovery of the claim to the extent of the law. After having resisted the recovery to this extent, instead of acknowledging his' indebtedness, he has no claim upon the court to relieve him from responsibility in the payment of a claim which he so resisted. The bill should not have been entertained in the first place, or it might have been dismissed upon motion or demurrer, and at the hearing it was not too late to raise the objection.

It is represented that the conflicting claims to this fund, between Fake & Cotton on the one side and Morrison on the other, grew out of a partnership between them, and that this was a debt owing originally to the firm. It being a partnership claim, it had to be sued for in the name of the firm. This point was decided in Bird v. Fake & Cotton, ante. The suit was correctly brought in the name of Fake & Cotton, the acting partners. Morrison would have been required to sue upon it in the name of the firm. The right of Morrison to receive the money for his own exclusive use and benefit being denied and disputed by Fake & Cotton, a payment by Bird of the judgment forever discharges him from all liability. Whether Fake & Cotton claimed the money adversely to Morrison or not makes no essential difference to Bird, so far as it relates to his liability to the firm. Bird has not given us to understand what security he gave Morrison for the debt, or what engagement has been made between them. The right of Morrison to take such security to himself is disputed by Fake & Cotton. Prom this it appears that the partnership business of this firm has not been finally settled among its several members. In order to enable the court to judge of Bird’s right to sustain this bill, he should set forth his particular obligation to Morrison. Short of this, we cannot determine that he labors under any difficulty with regard to the payment of the money upon the judgment. He must show that a recovery against him on this judgment of Falce & Cotton might not protect him against a recovery by Morrison (Bedell v. Rogers, 2 Paige, 209), which he has not, but, on the contrary, has withheld from the court the evidence or proper presentation of the fact. For this reason, also, the bill could not be sustained.

Bird may have been under some personal obligation to Morrison, and Morrison may be individually entitled to this money, but without a necessity for this proceeding this bill should not be sustained. The rule is that bills of interpleader are not to be encouraged and are not to be sustained without an absolute necessity.' There was no necessity for the proceeding. This being a partnership claim, Morrison should have filed his bill in the court of chancery, against Falce and Cotton, to compel a settlement of the partnership accounts and for the appointment of a receiver. The collection of this debt would have thereby come under the jurisdiction of the court of chancery, and the receiver, as the officer of the court, would have taken care of the fund. Or, if the partnership affairs had all been settled, Morrison might have come into the district court and on his motion and cause shown, have had the judgment declared to be for his use, or the money ordered to be paid' over to him.. Bird, in this appeal, complains that the money was ordered by the court to be paid over on the judgment to Falce and Cotton. It is true that he had to bring the money into court before he could obtain an injunction against the collection of the debt by Fake and Cotton. Upon the payment of the money, they were enjoined from proceeding further against him. He had defended against the collection of this claim in almost every way known to law, for about four years. He had gone to trial upon the bill and answers filed, and thereby consented that the legal effect of those answers must be against his bill if they denied all the material obligations in it, and a bill of interpleader is not an exception to this rule. Atkinson v. Monks, 1 Cow. 691. The court had the whole case before it by consent. City Bank v. Bangs, 2 Paige, 590. Upon the bill and answers it became a question what should be done with the money. Upon a dismissal of the cause, Bird acknowledged that he was indebted that amount, and desired to pay it. Such a case was not presented by him as to require Bake and Cotton to interplead with Morrison. An issue could not be raised between the defendants. Fake and Cotton were the nominal plaintiffs for the whole firm, and were disputing Morrison’s exclusive right to the money ; hence, it became evident that a payment by Bird extinguished the debt. It is a general rule that money paid into court by a debtor, cannot be taken out by bim without consent. It is gone from him. And in Bedell v. Hoffman, 2 Paige, 199, the court, after dismissing the bill as unnecessarily filed, so far continued control of the funds paid in, as to deny the complainant the costs out of the funds. The court, at the instance of Bird, having enjoined the colle ;tion of the debt, and there being no legal reason why that injunction should continue, and no further dispute about the legal application of the money to the judgment, which Bird was anxious to discharge, if he could do so with safety, there seems to be a greater propriety in ordering it to be paid over in discharge of the judgment than in returning it to him. Morrison could follow it after the order as well as before,-and.on this-appeal we cannot determine his right to the money or the propriety of his claim. It is not before us, nor can Bird bring it before us by this appeal.


author: Stow, C. J.,

text:
    Brunson et al. v. Burnett et al.
    "Writ os' error — appeal.— A writ of error, instead of an appeal, is the proper process for reviewing, in the supreme court, the proceedings of a district court on an appeal from the decision of a probate court.

    (1 Ohand. 9.)
    ERROR to tbe District Court for Grant County.
    The proceedings in this case were originally commenced before the judge of probate of Grant county, the matter in controversy being the estate and an alleged nuncupative will of the late Thomas P. Burnett. From the decision of the probate judge an appeal was taken to the Grant county district court, the judge of which court (the late Territorial Chief Justice DuNN) affirmed the decision of the probate judge ; and, on this judgment or decree, a writ of error was brought to this court.

      LaMn <& Mills, for the defendants in error,
    moved to dismiss, on the ground that a writ of error did not lie on a proceeding of this character, the proper process of review being an appeal.

      S. Crawford, for the plaintiffs in error.

       After tlie organization of the separate supreme court, in 1858, the decision of the circuit court for Dane county, on an appeal from the decision of the county court ibr that county, admitting to prohate the will of Edward JTisher, deceased, came before the supreme court by writ of error. Upon motion, the writ was quashed, the court holding that the proceedings could not be reviewed in that way, but only by certio-rm'i. A certiorari was accordingly issued, and the case was heard thereon and decided. In re Edward Fisher, 4 Wis. 254.
      The supremo court thereupon adopted the following rule for reviewing such proceedings. Since the adoption of the provisions of the Code and the appeal act of I860, such proceedings have been, beyond doubt, reviewable by an appeal; yet this rule of the court has not been, in terms, revoked, and it is probable that the former method of review might still be adopted with safety:
      Utile 26 told rules).
      [Adopted December, 1853.]
      In all cases appealed to the circuit court from the county court, and coming to this court by writ of certiorari, if the party applying for such writ shall execute to the adverse party a bond with sufficient sureties, in such sum as either of the justices of this court, or the clerk thereof, shall direct, conditioned to pay, satisfy and perform the order, decree or judgment of this court thereiu, in case the said order, judgment or decree of the circuit court shall be affirmed, the order, judgment or decree from which such appeal, is taken shall be superseded, aud all proceedings on such order, judgment or decree shall be stayed.
      Rule 27.
      The sufficiency of the sureties in the bond mentioned in the next preceding rule, shall be ascertained in the same manner as provided by section three of chapter one hundred and ibur of the Revised Statutes (1849).
      Rule 28.
      The said writ of certioraH shall be substantially in the following form:
      STATE OE WISCONSIN,) M Supreme Court, j

        The State of Tffisconszn to the judge of the circuit court of the county of-, greeting:

      Whereas, it is alleged that a certain proceeding lately pending in the circuit court for the county-, before the judge thereof, in the matter of-, errors have intervened to the great damage of-; and we, being willing that justice should bo done in the premises, do command you, that you, without delay, do certify to us, under the seal of the said court, the proceeding aforesaid, together with all the orders, judgments or decrees made or rendered therein, and also that you cause to be transmitted to us all process, documents, pleadings, testimony and original papers in said proceedings. Hereof fail not.
      Witness, the TIon. Edward V. WhitoN, chief justice of our said court, at Madison, this-day of-, A. D. 18 . [Seal.]

        Clerk of Supreme Court.

        Upon the service of such writ upon the clerk of the circuit court, the said clerk shall immediately transmit to this court a certified copy of the record in said cause, and also shall transmit all process, pleadings, documents, original papers and testi mony on file in the office of such clerk in said cause.

   Stow, C. J.,

delivered an oral opinion denying the motion, remarking, that it was of no moment which proceeding, a writ of error or an appeal, was pursued ; that it was one of those cases where it was of more importance that the rule should be settled, than what that rule was ; and that, in the absence of authority or precedent, the court felt at liberty to adopt such a course as was deemed most expedient; and that, on the whole, a writ of error was preferable to an appeal.

Motion denied.


author: Whiton, J.

text:
    Eaton v. Gentle, who sues for the use of Tracy.
    1. Witness — interest.—When a-witness has a direct and immediate interest in the subject-matter of a suit, he will be excluded if called upon to testify in favor of such interest.
    2. Same. — -The true test of the interest of a witness is, whether he will gain or lose by the direct legal operation and effect of the judgment in the cause; or, whether the record willbe legal evidence for or against him, in some other action. But this rule does not extend to agents, earners, factors, brokers, or other servants, as to acts done within the scope of their employment.
    3. Same. — A sheriff, who pays money collected on execution, to the attorney of the plaintiff, is a competent witness for the plaintiff in an action brought by him against his attorney for the money received from the sheriff, the case being an exception to the general rule.
    (1 Ghana,. 10.)
    ERROR to the District Court for Iowa County.
    This was an action of assumpsit, brought by Gentle, for the recovery of money alleged to have been had and received by Eaton for the use of Charles Tracy, and for which Gentle instituted the suit for the use and benefit of Tracy. The defendant pleaded non-assumpsit.

    The cause was brought to trial at the October term of the district court for Iowa county, in the year 1847; and by a stipulation and agreement between the attorneys on either side, a jury was dispensed with, and the cause was tried by and before the district judge ; who, after hearing the proofs of the parties, adjudged and determined that the plaintiff recover against the defendant the sum of $87.28.
    On the trial of the cause, the plaintiff produced James H. Gently, former sheriff of Iowa county, and Moses Whitesides, to prove that certain moneys had been paid to the defendant, as the attorney of the plaintiff in the suit of Gentle v. Perry. The defendant objected to Gentry being sworn, upon the ground of interest; and to prove his interest, he produced an execution issued in the cause of Gentle v. Perry, on the back of which was indorsed by Gentry, sheriff, that he had the sums named in the writ to render to Gentle, as within he was commanded. The judge overruled the objection and admitted Gentry to testify.
    This witness proved that shortly after he had made the before-mentioned indorsement on the execution, he paid the amount called for by the execution to the defendant as the attorney of Gentle, with the exception of $14, and for which latter sum the witness had an order from Gentle for money due the witness.
    Moses Whitesides proved a conversation between himself and the defendant, some years before the trial of the cause, stating therein that he had called upon the defendant at the request of the plaintiff, for the money collected on the execution against Perry ; at which time the -defendant pretended that the money was in the hands of one Sherry, the former clerk of the court, but then dead; and that there was no other mode of recovering it than by suit against the bail of Sherry. The defendant admitted in this conversation that he had received his fees as attorney of Gentle. The defendant sued out a writ of error.

      M. M. Qothren, for plaintiff in error.

      Dunn & Crawford, for defendants in error.
   Whiton, J.

This action was brought by the defendant in error against the plaintiff in error, in the late district court of Iowa county, to recover a sum of money alleged to have been collected by him as the attorney of the defendant in error. The parties having waived a jury, the case was tried by the judge. The errors relied on by the plaintiff in error, to reverse the judgment, appear in the assignment of errors, which is as follows : 1. The court erred in refusing to exclude the evidence of the witness, James H. Gentry, and in receiving the same after his interest had been shown. 2. The court erred in rendering judgment against the plaintiff on the proofs presented. 3. The judgment of the court was contrary to law and the evidence in the case.

The bill of exceptions shows, that on the trial the witness, Gentiy, was called upon to testify on the part of the defendant in error, and objected to by the plaintiff in error on the ground of interest. To prove his interest, the plaintiff in error produced an execution issued on a judgment recovered in the district court of Iowa county, at a previous term, in favor of the defendant in error against one Peter Perry, on which there was an indorsement by the witness (who, at the time of maldng it, was the sheriff of Iowa county), in the following words: “I have the sum named in the within writ, to render unto Stephen Gentle as within I am commanded.

JAMES H. GENTRY, '

April 2, 1838. Sheriff.”

The judge who tried the cause being of the opinion that the proof adduced did not establish such an interest in the witness as ought to exclude him, permitted him to testify. He testified that a few days after the indorsement was made on the execution, he paid the amount collected to the plaintiff in error as the attorney of the defendant in error, with the exception of $14, for which he had an order from the defendant in error for money due the witness, which order was paid and allowed by Eaton as attorney of Gentle.

It is insisted by the plaintiff in error, that the witness had a direct interest in favor of the plaintiff below, inasmuch as, if a judgment was obtained against Eaton in the suit, the witness would be discharged from his liability to pay to Gentle the money collected for him on the execution.

The general doctrine on the subject, as understood by the court is, that when a witness has a direct and immediate interest in the event of the suit he is excluded, if called upon to testify in favor of his interest.

The true test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action. 1 Greenl. on Ev. § 390. To this rule there axe many exceptions. It does not extend to agents, carriers, factors, brokers or other servants, when offered to prove any acts done within the scope of their employment. Thus, a clerk who has received money is a competent witness for the party who paid it, to prove the payment, though he is himself liable on the receipt of it. Mathews v. Hayden, 2 Esp. 509. A factor who sells for the plaintiff, and is to have a percentage on the amount, is a competent witness to prove the contract of sale. .8 Barn. & Cress. 407. The exception extends in principle to every species of agency or intervention by which business is transacted.

Is the witness Gentry within the rule or the exception ? He had an execution in his hands, as the sheriff of Iowa county, against the property of Perry, and by the indorsement on the back of it the collection of the money by him was clearly established — and if the plaintiff below prevails in the action, the liability of Gentry to pay the money over to the plaintiff below will be extinguished. By his return on the execution, his liability to the plaintiff below, for the amount of the execution, was clearly proved; and to permit him to testify, it is said, will violate the well-settled rule governing cases of this kind.

But we are of opinion that the case falls within the exception. Gentry, the witness, was the sheriff of Iowa county, and it was his duty to pay the money over to the person entitled to receive it after its collection; and the plaintiff in error, as the attorney of Gentle, was the proper person to whom to pay it. The sheriff may be considered as the agent of the plaintiff below, for the purpose of collecting the money and paying it over to him or his attorney in the suit; and the payment testified to by the witness, was a payment in the ordinary course of his business or employment.

The other errors assigned are all similar and may be considered together: they allege substantially that the court erred in rendering judgment against the plaintiff in error, for the reason that it was against the law and the evidence in the case. The bill of exceptions states that a witness by the name of Moses Whitesides was introduced by the plaintiff below, who testified that, some two or three years before, he called upon the plaintiff in error, at the request of Charles Tracy (for whose use the suit was brought), for the money collected on the judgment and execution alluded to ; that the plaintiff in error appeared to be dissatisfied with the conduct of Tracy, but said nothing which can be construed into a denial of the fact testified to by Gentry. It was stated in the argument of the counsel for the plaintiff in error, that he could not be charged in this action without proof of a demand upon him for the money which he had received as the attorney of the defendant in error, and it was for an alleged failure in the proof to establish the fact of a demand, that the counsel contended that the proof was not sufficient to justify the decision of the judge on the question of fact submitted to him.

Generally, an action cannot be maintained against an attorney for money collected by Mm for his client, without proof of a demand and refusal to deliver it, or of a conversion of it by the attorney. But we think that the testimony of WMtesides establishes the fact of a demand upon the plaintiff in error, and that the decision of the judge was correct upon the question submitted to him.

Judgment affirmed, with costs and ten per cent, damages.


author: Jackson, J.

text:
    Knowlton et al. v. Culver et al.
    1. Abatement — -pleading.—After overruling a demurrer to a declaration in replevin, a plea in abatement of the pendency of a former suit in J replevin for the same property is bad, and cannot be allowed; and though the plaintiff take issue on the plea, yet that issue will be ■ unavailing to the party interposing the plea.
    2. Same. — A plea in abatement must be verified by affidavit.
    ERROR to the late District Court for La Fayette County.
    This was an action of replevin, brought by the defendants in error against the plaintiffs in error, in a justice's court for the county of Iowa, for the recovery of a quantity of lead mineral. On the return day of the process the parties appeared, and the plaintiffs below declared for the wrongful taking and detention of the property mentioned in the process.
    The defendants below demurred generally j but the justice, on argument, overruled the demurrer.
    The defendants below then pleaded in abatement the pen-dency of another suit in replevin for the same cause of action in the county of Iowa. To this plea there was a replication taking issue on it. On the trial of this issue judgment was given by the justice in favor of the defendants below.
    An -appeal was taken to the district court of Iowa county; from which court it was removed, under the provisions of the statute, to the county of La Fayette, and was there tried before the district court, upon the same issue joined before the justice; and in that court judgment was rendered for the plaintiffs below.
    To reverse that judgment the defendants sued out a writ of error.

      J. H. Knowltcni, for plaintiffs in error.

      Oulver, for defendants in error.
   Jackson, J.

After the overruling of the demurrer by the justice, it was clearly inadmissible to plead in abatement. In the next place, the plea in abatement was materially defective in not being verified by affidavit. Again, the plea in abatement is a departure from the writ. For these reasons the plea would have been held bad upon demurrer. But a replication was filed to the plea, and an immaterial issue joined thereon. The instructions of the court, therefore, are not important to be considered, as the judgment could not be sustained if they were correct. The cause must be remanded to the circuit court, where a repleader can be awarded, and a trial had upon the merits.

Judgment reversed with costs.


author: Stow, O. J.

text:
    Rich v. Johnson.
    1. In an action of covenant to recover damages for the breach of the covenant of seizin contained in a deed, the measure of damages which the plaintiff is entitled to recover is the consideration paid and the interest thereon for six years from the time of the breach, or for so long a time as, by the local law, mesne profits are recoverable after the breach has occurred.
    2. The burden of proof is upon the defendant to show that he had a good title, and not upon the plaintiff to show that he had not. Mecklem v. Blake, 16 Wis. 102; Beckmann v. Herm, 17 id. 412; Ludlow v. Oilman, id. 552; but see, also, Walker v. Wilson, IS id. 522; Sail v. Oale, 14 id. 54.
    3. Until eviction, the damages are mer’ely nominal. Taft v. Kessel, 16 Wis. 273; Sorlon v. Arnold, 18 id. 212. ,
    ERROR to the late District Court for Racine County.
    This was an action of covenant for the recovery of damages, on the failure of title in a deed executed by the defendant, to the plaintiff in the court below. The declaration assigned several breaches, on which issue was taken. The cause was tried in the Racine county district court, at the April term, 1847, and a judgment was obtained in favor of the plaintiff below, against the defendant below, for the sum.of $407.54.
    On the trial, the plaintiff below introduced a duly exemplified record of one of the courts of record of the State of Illinois, showing proceedings whereby a mortgage, executed bjr the defendant below upon tbe conveyed premises, had been foreclosed turd the premises sold. He also produced the record of the deed containing the covenant, for the breach of which the action was brought.
    ■The judge who tried the cause charged the jury that the record (in proof) showed a'sufficient breach of the covenants in the deed, to enable the plaintiff below to recover; that the amount of damages which the plaintiff was entitled to recover was the consideration expressed in the deed executed by the defendant to the plaintiff, with interest to the time of trial.
    Verdict and judgment for the plaintiff, and the defendant brought a writ of error.

      E. W. Evans, for plaintiff in error.

      Ohatfleld, for defendant in error.
   Stow, O. J.

We do not think it necessary to examine the numerous points made on the argument of this writ of error, as we are of opinion that the judgment must be reversed on a ground not involving the principal questions in the case. Under the direction of the court below, the jury in assessing the damages, added to the consideration expressed in the deed, interest from its execution to the day of trial, being a period of something more than ten years. In giving this direction, we think the learned judge, before whom the cause was tried, erred. Though the measure of damages in actions on covenants of seizin and warranty, is not uniform throughout the United States, the prevailing, and we think the better rule is, to allow but six years’ interest, or interest for the time for which mesne profits are recoverable. 13 Johns. 50; 4 Dall. 441; 2 Bibb, 273; 1 H. & M. 202; 1 McCord, 466; 2 Rand. 122; 1 Brown, 161. And this rule this court now adopts. Eor this reason, the judgment of the late district court is reversed, and the cause is remanded to the Racine county circuit court for the further action of that court.


author: Stow, C. J.

text:
    Lockwood v. Rogers et al., for the use of Brace.
    1. Pi/EADiirGr.- — -Where there are two counts in a declaration, one of which is good and the other bad, a demurrer to the whole declaration will be overruled.
    (1 Chana. 21.)
    ERROR to tbe late District Court for Crawford County.
    The declaration iu this cause was in assumpsit containing two counts. The first was special, upon a written guaranty. The second, for work and labor, goods, etc.
    The defendant demurred generally to the whole declaration, and the plaintiff joined in demurrer. The demurrer, on argument, was overruled.
    The opinion of the court being upon a single point, precludes the necessity of a more specific statement of the case.

      Qollins (É Oatlin, for plaintiff in error.

      Dunn, Jones & Crawford, for defendant in error.
   Stow, C. J.

The declaration in this case, which is in assump-sit, contains two counts : the first, a special one, on a written guaranty ; the second, the common indebitatus assumpsit for money, work, labor and goods. To this declaration the defendant demurred generally. The demurrer was overruled by the late district court, and to reverse this decision this writ of error is brought.. Whatever may be said of the first count of the declaration, there can be no doubt that the second is good; and the demurrer being to the whole declaration, it is well settled that it is not available, although had it been confined to the first count it might, perhaps, have been sustained. On this pomt, however, we give no opinion.-

Judgment affirmed.


text:
    Dean et al. v. Williams.
    1. Costs. — Costs do not in general follow interlocutory orders, unless expressly awarded, Ibut abide the event of the suit.
    2., Amendment. — By the rules of the late district court, an amendment in pleading could he made only upon the terms of payment of the intervening costs; and this rule was as operative as a statute provision, and could not he avoided hut hy an express exception from its operation.
    3. Judgment — whit oe error. — A rule for judgment is not a judgment, and a writ of error will not lie to it.
    4. Error. — It is questionable whether a writ of error lies to reverse á judgment for costs only.
    (1 Chanel. 22.)
    ERROR to tlie District Court for Walworth County.
    This was an action of trespass quare clausum fregit, and for taking aud driving from thence the sheep of the plaintiff, etc.
    The defendants below pleaded separately. The plaintiff below obtained leave to discontinue, and did discontinue as to two of the defendants.
    The cause was tried at the June term of the court for Rock county, 1847 ; and the jury were unable to agree upon a verdict, and the cause was continued.
    At the same term the defendants, by their attorneys, applied for and obtained leave to plead or give notice of special matter, to be given in evidence on the trial of the cause ; and did plead and give notice of such special matter.
    At the October term of the district court for Rock county, the plaintiff below applied for and obtained an order changing the venue from 'Rock to Walworth county. At the May term of the court for Walworth county, 1848, the plaintiff pleaded issuably to the special plea of the defendants, and, before a trial was had, he filed a motion for and obtained a rule that he recover of the defendants, his proper costs and charges about his suit expended between the times of filing their original pleas and of the filing of their amended picas; and at the same time, and as part of the same rule, it was ordered that the plaintiff be nonsuited as to one of the defendants, Stephen Scott, Junior, and that he, (Scotty recover of the plaintiff Ms costs and charges of his defense in the suit. The cause was tried by a jury, and resulted in a verdict and judgment for the defendants.
    Afterwards, at the same term of the court, the defendants below tendered and took exception to the decision and order of the judge, granting to* the plaintiff below his costs and charges about Ms suit, between the time of filing the original and amended pleas as before mentioned, and upon this exception the cause was brought into this court upon a writ of error.
   Stow, C. J.

This case has been submitted without argument or brief. Had we been aware, at the time the papers were handed up, that they were not accompanied with a brief, we should have declined receiving them ; as we cannot, as a general tMng, consent to take upon ourselves to examine and decide cases in this court, on a mere inspection of the record.

By the record, it appears that at the September term of the district court, 1847, and after one trial had been had, the defendants below (the plaintiffs here) applied for and obtained leave to amend their pleadings, which they did j and that at the following May term, a rule for judgment was obtained by the plaintiff below, for the costs incurred between the, filing of the defective pleas, at the October term, 1846, and the amendment, a year afterwards. The errors assigned are :

1st. The court awarding costs, in May, 1848, of the amendment allowed in September, 1847, when the rule for that amendment expressed no terms on wMch it was to be made: and,

2d. The giving judgment for these costs.

In regard to the first alleged errror, it is to be observed, that though, in general, costs do not follow interlocutory orders, unless expressly awarded, but abide the event; by the standing rule of tbe late district courts, tbe amendment could be made only on the terms of paying the intervening costs. This rule, while in force, was as operative and obligatory as a statutory provision; and the party availing himself of it could exonerate himself of its burthens, only by an express exception in his favor. We are, therefore, of opinion that the district court was right in awarding the costs it did. As to the second error assigned, it does not appear from the record that a judgment for the costs was, in point of fact, "■ ever actually entered ; and a mere rule for judgment is not a judgment, and error will not lie upon it; besides, it is very questionable whether error lies to reverse a judgment for costs-alone. And for this reason (and without expressing any opinion on the subject whether a judgment was the proper method of securing the payment of the costs awarded) the writ of error is dismissed.


author: Larrabee, J.

text:
    Knowlton et al. v. Culver et al.
    1. County — division of. — The act organizing La Fayette county, on the 1st of May, 1847, out of a part of Iowa county, providing for the removal to the former county of all the causes and suits depending and undetermined in the county of Iowa, upon appeal or otherwise, at the time of such organization, and wherein the defendant shall file an affidavit in the district court of Iowa county, of his residence in La Fayette county, is limited to suits pending and undetermined in the district court, and does not apply to suits before justices of the peace.
    (1 Chanel. 25.)
    ERROR to the late District Court for La Fayette Comity.
    This was an action of replevin before a justice of the peace, and was appealed to and tried before the district court.
    The decision of this court is based upon a question of jurisdiction ; and the merits were in no sense involved, so as to require a statement of them here.

      This is one of a series of cases between the same parties, but involving somewhat different points and propositions.

      J. H. Knowlton, for plaintiff in error.

      Oulver, for defendant in error.
   Larrabee, J.

The only question in this cause is one of jurisdiction. The county of La Fayette was formed out of a portion of Iowa county, and fully organized on the 1st day of May, 1847. The act organizing the county provides that all the suits and causes pending and undetermined in the county of Iowa, upon appeal or otherwise, at the time of organization, in which the defendant shall file an affidavit in the district court of Iowa county, of residence in La Fayette county, shall be certified to the district court of the last named county.

This provision is evidently limited to suits in the district court, and cannot include suits “pending and- undetermined ” before justices of the peace. Those officers were continued in office upon the division of the county, as officers of the county in which they resided at the time ; and, in the absence of a contrary provision, suits before them would be prose-euted as if no division had taken place; if “ determined,” they could be removed to the district court of the same county,” as provided by statute. It certainly could not have been intended by the act of organization to authorize the removal of suits pending before justices, to the' district court of La Fayette county, by the circuitous process of first bringing the cause to Iowa county, and filing an affidavit in the district court, and then have them certified to the district court of La Fayette county.

But this cause was determined- before the justice on the 14th of April, and the plaintiff had the right, undoubtedly, at any time before the 1st day of May, to remove this cause by certiorari to the district court of Iowa bounty. Had he done so, and the defendant came within the provision, the cause might have been afterwards removed to La Layette. But after that date, though his right of certiorari remained, the cause being determined before a justice of a different county, no writ could reach it from the county of Iowa. The cause was then within the jurisdiction of the district court of La Fayette county.

We think, therefore, that the court below erred in dismissing this cause. Judgment must be reversed, and the cause remanded to the La Fayette county circuit court for the further action of that court.

Judgment reversed.