source: Caselaw Access Project

author: Larrabee, J.

license: Public Domain

text:
    Fisher v. Chase.
    1. Practice — default.—Where a demurrer to the plaintiff’s declaration is overruled, he cannot regularly have his damages assessed until the defendant’s default for want of a plea is entered; and the defendant having filed a plea before the assessment of damages and before the entry of his default, a judgment on such assessment was reversed.
    (2 Chomd. 3.)
    ERROR to the late District Court for Bock County.
    The defendant in the court below demurred to the whole ■ declaration, and, on argument, that court overruled the demurrer, and thereupon the plaintiff below assessed his damages without having entered the defendant’s default, or any rule for the assessment. The defendant below filed an issuable plea, before the assessment of the plaihtiff’s damages, and the case comes here for the alleged error of assessing the damage saffcer plea put in. •

      J. II Knawltan, for plaintiff in error.

      J. A. Sleeper, for defendant in error.
   Larrabee, J.

The record in this cause shows that a writ of inquiry was awarded, and the plaintiff’s damages assessed, without a default having been first entered against the defendant. It also appears that after the demurrer was overruled, the defendant filed a plea of the general issue. There is nothing to show that this plea was not properly filed, and an issue formed. Yet, notwithstanding this state of facts, a writ of inquiry was awarded, and damages assessed.

The judgment of the district court must be reversed, and the cause remanded for further proceedings.

Judgment reversed.


author: WhitoN, J. Stow, C. J.,

text:
    The State ex rel. Ezra L. Varney v. William W. Wyman.
    1. Repeal oe statute — constitution—county oeeicbks. — By the statutes of the territory, provision was made for the election of county treasurers annually, and that they should go into office on the first Monday in January in each year. By the seventh section of the schedule to the constitution, adopted in 1848, it was provided that “ all county, precinct and township officers shall continue to hold their respective offices, unless removed by competent authority, and the legislature shall, in conformity with the provisions of the constitution, provide for the holding of elections to fill such offices respectively,” and at the general election in 1848, after the adoption of the constitution, W. was elected county treasurer, and the state legislature afterwards passed an act, which took effect on the first of May following, providing for choosing, at the general election in each year, so many of the officers named in. that act as were by law to he elected in each year, among which was mentioned the office of county treasurer; and it was further provided, that county treasurers should hold their offices for two years. Under this act Y. was elected county treasurer at the general election in 1849, and qualified; hut W. claimed the right to hold the office, under the election of 1848, for the term of two full years. Held, 1. That the constitution did not repeal any of the laws of the territory which were not repugnant to it, and the provision in question only modified the term of service of officer’s in office at the time of its adoption. 2. The provision that county treasurers “shall hold their offices for two years,” is applicable only to those elected under the act which went into effect May 1, 1849 ; and under this act Y. was rightfully elected county treasurer for the term of two years. 3. The provision in the constitution modified W.’s term of office only so far as to enable him to hold the office until the legislature made provision for filling it by election, and the act of the state legislature did not apply to or extend his term of office to two years. Stow, C. J., dissenting.

    (2 Chand. 5.)
    THIS was an information in the nature of a quo vxirranlo, by the relator, Varney, to possess himself of the office of treasurer of the county of Dane, together with the boohs, papers and appendages thereof, as against the respondent, Wyman. It appeared that the relator was elected treasurer of the county at “the election in the year 1849. It also appeared that the respondent was elected at the general election in 1848 to the same office, and qualified according to law. That the relator, after his election in 1849, took the oath of office, but that the respondent refused to deliver to the relator the books and papers belonging to the office, or to give place to him as treasurer, on the ground that, at the time of the election of the relator, there was no law in force authorizing the election of treasurer.
    The opinion of the coiu’t clearly exhibits the gromids of the decision.

      Abbott & Cothren, for relator.

      GoTlins & Olarbc, for respondent.
   WhitoN, J.

The object of tins proceeding is to obtain possession of the office of treasurer of Dane county. The relator claims the office by virtue of an election, and it is admitted that he was duly elected to the office at the general election, held on Tuesday succeeding the first Monday in November, 1849, if, by the laws then in force, a lawful election of county treasurer could take place. It is further admitted that the relator took the proper oath and executed the bond required by law, within the time prescribed by section 138 of chapter 10 of the Revised Statutes, and further, that he demanded possession of the books and papers belonging to the office, before commencing this proceeding.

The claim of the relator is resisted by the respondent, who was elected to the office at the general election.in 1848, on the ground that there was no law in force authorizing an election of county treasurers at the time when the relator claims to have been elected.

Various acts of the legislature of the territory and state of Wisconsin, and the constitution of the state, were referred to in the argument, all of which I will notice. The act of the legislature of the territory which took effect in July, 1839 (Stat. Wis. Ter.,' p. 97), provided for the.election of county treasurers annually. The same act prescribed them powers and duties and fixed their compensation. The next act bearing upon the subject was passed by the legislature of the territory, in 1841. This act does not alter the act of 1839, except to provide that the term of service of the county treasurers, when in office, should expire on the first Monday of January then next, and that the term of service of those afterwards to be elected should commence on the first Monday in January in each year. Sess. Laws, 1841, p. 33. The next is an act passed in 1841, in relation to township and county government. This act only applied to those counties which adopted it, and, like the act of 1839, provided for the annual election of county treasurers. Town act, p. 72. The next act bearing upon the subject was passed in 1842. Sess. Laws, 1842, p. 43. This act merely declares the county officers, elected at the preceding general election, to be in office from the first Monday in January, 1842, and provides that the tenure of office of those officers, elected or to be elected in pursuance of the provisions of the act in relation to township and county government, should not be affected by it. These are all the acts of the legislature of the territory, bearing upon the subject, which I have been able to find; and, taken together, they provide for the election of county treasurers annually, and for their going into office on the first Monday of January in each year. They prescribe the powers and duties of those officers and fix their compensation. By virtue of their provisions county treasurers were elected, and held their offices until the constitution of the state was adopted in 1848.

That instrument contains a provision upon the subject of county officers, which, in connection with subsequent acts of the legislature, the respondent contends, renders the election of the relator illegal The clause of the constitution referred to, is the seventh section, of the schedule, and is as follows : “ All county, precinct and township officers shall continue to hold their respective offices, unless removed by competent authorily, until the legislature shall, in conformity with the provisions of this constitution, provide for the holding of elections to fill such offices respectively.” The counsel for the respondent contended, in the argument of the case, that this provision had the effect to repeal the acts of the legislature of the territory, upon the subject of county treasurers, or at least to create a new tenure for the office. I am clearly of opinion that it cannot have the effect to repeal the acts of the legislature in question.

The state constitution repealed none of the laws of the territory, except such as were repugnant to it, and this clause of the constitution, and the acts of the legislature referred to, may well stand together; 'the latter modified only so far as the term of service of those who held the offices, at the time when the constitution was adopted, were concerned. To admit that the constitution repealed^ those acts, would be to hold that, after the adoption of the former, there was no law in existence, which defined the powers with which these officers were clothed, or the duties which they were to discharge, and I cannot think that by any just rule of construction, such an effect can be given to it. Nor do I think that a new tenure was created for these offices.

The provision in the constitution applies only to those officers who were in office at the time of its adoption, and does not establish any tenure for those who were afterwards elected. Those then in office were to hold then offices until the legislature made provision for filling them by election; but in no other respect did the constitution interfere with the tenure of these offices, as established by the previous acts of the legislatura It may well be imagined that the framers of the constitution supposed that when the legislature provided for filling these offices by election, they would also specify the term the incumbents were to serve. If this had been done, no difficulty would have arisen, but it was omitted. The provision for filling these offices was made by an act passed at the first session of thb legislature after the constitution was adopted; by virtue of it the respondent was elected; and if-the laws of the territory in relation to the office were not repealed, nor the tenure of the office changed by the constitution, except so far as those persons were concerned who filled the offices when the constitution went into effect, it follows that he was elected for the term as fixed by the laws of the territory which we have seen was one year only.

There remains but one other subject of inquiry, and that is, whether any law was in existence at the time the relator claims to have been elected by which his election was authorized. There can be no doubt on the subject. The legislature passed an act which went into effect on the first day of May, 1849, which provides that there shall be chosen at the general election in each year, so many of the officers named in tbe act “as are by law to be elected in such year,” and which names county treasurers among the number. Rev. Stat. ch. 6, § 3.

Now, if the respondent was elected for one year, the election of his successor was proper and necessary at the general election in 1849. It can make no difference that the legislature passed an act which took effect on the first day of May, 1849, providing that county treasurers shall hold their offices for two years, as this provision was .clearly intended to apply only to those elected after the law went into effect. Nor can section 85, of chapter 6, of the Revised Statutes, which was referred to 'in the argument for the respondent, at all affect the question. That provides for the election of all county officers whose election is not otherwise specially provided for at the general election in 1850, and at the general election in every second year afterwards. Now, if the view I have taken of the subject is correct, the election of county treasurers was provided for at the general election in 1849, by section 3, of chapter 6, of the Revised Statutes, which went into effect on the first day of lytay, 1849, and as the legislature have provided by an act, which also went into effect on the first day of May, 1848, that county treasurers shall hold their offices for two years, it follows that no election of county treasurers can take place until the year 1851, except for the purpose of filling vacancies. It necessarily follows, from the view I have taken of the subject, that the relator was rightfully elected, for the term fixed by law, at the time of his election, which is two years.

Stow, C. J.,

dissenting. It is always with timidity and regret that I dissent from the opinion of the majority of this court, and it is particularly embarrassing to do so alone. But as I have not been able to come to the same conclusion at which my brethren have arrived, and as the principle involved in this case is one of great public importance, though the particular question is not likely to arise again, I think it my duty to put my dissent, and tbe reasons of it, in a few words, on record ; premising that this is one of those cases where a little common, sense, and a little political knowledge, are worth a deal of legal learning.

I agree with my brethren that the law of 1841, if not repealed, authorized the election of the relator; I agree that that law was continued in force by the second section of the constitutional schedule. I go even farther; I hold it would have remained in force, until repealed, had there been no constitutional provision on the subject; for I do not assent, at all, to the new nullifying doctrine, that the ordinary municipal laws of a country are abolished by a mere change of government — even revolution, or conquest, works no such sweeping destruction. And I admit, that the act of 1841 was not, in terms, repealed at the time of the last general election. But with all this, I cannot recognize the relator’s right to the office he seeks.

The act of 1841, I am inclined to think, was repealed, in effect, by that of 1848, providing for the election of county officers, but whether it was, or not, I have no doubt that it was so repealed, and intended to be repealed, by the provisions of the Revised Statutes.

Among the canons for construing statutes, this one has always been admitted: That you are to look into the reason, the occasion, and the intention of the law. The rule is an old one — certainly as old as Plowden (Zouch v. Stowell), and probably as old as Deuteronomy. And this rule is particularly to be observed in reference to general public laws which, regard the 'policy of -the state; and do not involve any particular private right. Governed by this rule, I cannot but consider the territorial act of 1841 as repealed by the Revised Statutes. We know — it is known to all, and acknowledged by all — that the legislature intended to separate the election of county from that of state officers; that, while both were to be elected at general annual elections, they should severally be elected in different and alternate years. A most commendable purpose, and one which was demanded alike by public policy and political morality. Our people had seen and felt here, and in the older states whence they had emigrated, the mischiefs and vice of mixing up their local affairs with general politics, and they wished, as far as practicable, to correct the evil. The legislature, a more correct exponent in this case than usual of the popular will, intended to do, and I believe did, what it thought would be most effectual for tins purpose, by providing (§ 85, R. S. 76), that “all county officers authorized by law to be elected in any county now organized in this state, shall, unless otherwise specially provided, be chosen at the general election in the year 1850, and at the general election in every second year thereafter” — being different years from that provided by the constitution for the election of the state officers.

It is contended, however, and such seems to be the opinion of the court, that the election of county treasurers was specially provided for by the act of 1841; and which act, it is acknowledged, had not been, in terms, repealed last fall. But with what propriety can it be said that this old territorial law made special provision for the election of the county treasurers of the state ? Can this be the sense in which the legislature used the word “ special ? ” If so, I know of hardly anything in our statutes which is not special — there is nothing general. But look again at the purpose of the legislature. It was to separate county interests, or, if you please, county politics, from state politics, and it would be strange indeed, if the legislature had left that county office, which should be, of all others, except that of a judge, the farthest removed from party politics, to be trafficked for and gambled for at a* state election. The supposition assumes that the legislature must have been unaccountably heedless, disgracefully stupid, or willfully dishonest, neither of which am I willing, for a moment, to admit. I have no doubt, as tbe constitution bad made tbe state officers elective tbe odd years, that tbe legislature mtended that tbe treasurers, in common with other county officers, should be elected tbe even ones; and I have as little doubt that it made tbe necessary provision for that purpose by tbe 85th section, page 76, of tbe Eevised Statutes. Yet I can readily understand bow legal refinement and research may well enough lead to a different conclusion.

I fully concur with my brethren, that the county treasurers, legally elected, whether tbe last fall or tbe next, bold their offices for two yearn.

Judgment for tbe relator.


author: ITubbell, J.

text:
    Crawford County v. Iowa County.
    1. Counties attached fob judicial pubposes — liability eob couet expenses. — Two comities were attached for judicial purposes under a statute providing that certain courts should he held exclusively in a particular one of these counties, hut no provision was made relating to the expense of holding such courts hy the two counties, hut it had heen currently paid hy the county in which they were held: Held, that the non-paying county could not he compelled, in the absence of any statute provision, to contribute to, or pay any part of such expense, unless hy some act of consent it had created some duty or obligation to do so. 2. It is a fair presumption, in the absence of statutory provision to the contrary, that it was the duty of the county in which the courts were held, to pay the expenses as an equivalent for the advantage of having them held within its limits, and for the disadvantage arising to the other county hy its citizens being compelled to go abroad to transact judicial business.
    2. Limitations. — The statute of limitations is equally applicable to suits in equity as to suits at law.
    (2 Ohand. 14.)
    APPEAL from tbe District Court for Crawford County.
    Tbis was a suit instituted in equity, by tbe board of county commissioners of Iowa county, as tbe legal representatives of
      Iowa county while it was in the territory of Michigan, against the board of county commissioners of Crawford county, as the legal representatives and successors of Crawford county of Michigan territory.
    The bill sets up, substantially the following facts : 1. That in the year 1830, the counties of Iowa and Crawford were, by an act of Michigan, attached for judicial purposes. 2. That under such act the judiciary of 'said counties was organized, and courts held in Iowa county, “though said counties had a separate existence for all purposes except circuit and county court purposes.” 3. That such counties remained so attached from the spring of 1830 to July, 1836, during which time terms of the circuit court were held. 4. That from the spring of 1830 to July, 1836, as many as two terms of the circuit court were held for such counties, continuing on an average for ten days each, and that large sums of money were expended therefor, many indictments found and tried, the expense of which had to be borne by Iowa county; that the two counties, from the spring of 1830 to July, 1836, had but one sheriff, clerk or coroner attached to the circuit court, but had many other officers in common; that but one grand jury was summoned at each term to inquire for both counties on the territorial side of the court, and that the fees, charges, etc., were charged to both counties jointly, an equal share to each; that each county had a separate government and organization, as far as revenue was concerned, and each county assessed and collected its own revenue, and there was no common fund between them, out of which any joint indebtedness could be paid; that for the whole period, from the spiing of 1830 to July, 1836, the courts were filled with civil and criminal business, and that an equal amount if not a majority of such business came from Crauford county, especially that of a criminal character, and the length of the terms were materially extended in consequence of the business coming from Crawford county, and that the terms of the courts were mainly held for
      Orawford county; that all tbe expenses incurred by tbe counties jointly were defrayed by tbe county of Iowa ; that that county was compelled to adopt such course or permit such expenses to go unpaid; that tbe sum so paid as aforesaid amounted in the whole to $7,139.06, a bill df the particulars of which was appended to the bill of complaint; that the county of Orawford had paid no part or share of such expenses so paid by Iowa, and the complainants set up an indebtedness against the county of Orawford to the amount of one-half of the sum alleged to have been paid as aforesaid, and pray that said county may be decreed to pay the one-half of that sum, etc.
    The answer of Orawford county admits the organization of the counties substantially as alleged by the complainant; admits the annexation of the two counties for the purposes alleged in the bill, but that each of said counties had, during all the time in question, separate comity courts, having concurrent jurisdiction with the circuit court in civil actions under one thousand dollars, and appellate jurisdiction over justices’ courts, and of all crimes not punishable capitally; admits the counties were attached for the time alleged in the bill, but denies that any term of the circuit court was held in Orawford comity after October, 1835 ; denies also that as many as two terms a year of the circuit court were held, or that there was but one extra term held during the whole time, and that that one was held for the purpose of trying a man for án alleged murder, committed at Mineral Point in Iowa county; denies that the terms held continued so long as stated hi the bill, or that the alleged expenditures are chargeable to both counties ; alleges that each county had its own sheriff, coroner and clerk, but that the sheriff of Iowa had power to execute process in both comities; admits the grand juiy had power to inquire and did inquire for both counties; denies that the expenses alleged in the bill were chargeable to Orawford county; denies that an equal amount of business arose in Orawford county with that of Iowa ; admits that the expenses incurred for courts, besides what was paid by the United States, were paid by Iowa county; that a large part of the expenses set up in the bill of particulars of expenditure accrued after the holding of the last court in Iowa ; denies all the equities set up or alleged in the bill, or that the defendants are bound to pay the sum demanded. The answer also insists that the complainants have a remedy at law, and also that the statute of limitations bars the claim of complainants; that by the laws of Michigan, from 1830 to 1836, the counties of Iowa and Orawford were not corporations, and therefore that neither they or the representatives of either could sue or be sued in a case like that made by the bill, and prays that the defendants may have granted to them all the defense which they might have had, had they demurred to the bill.
    This cause was brought to a hearing before the late district court of Orawfard county upon bill, answer and proofs. The court ordered and decreed that Orawford county pay to Iowa county $1,752, with interest thereon until paid, together with costs. Erom this decree the defendants appealed.

      B. Q. Basiman, for'appellants.
    I.Neither the county of Iowa nor the county of Orawford were corporations under the laws of Michigan. Stat. Mich., 1827, p. 358, § 13; id., 376, § 11; id., 374, § 7; id., 375, § 10; id., 198, § 7.
    None of the county officers were required to give bonds to the county. Wilcox on Cor. (15) 9.
    1. The county of Iowa could not become a creditor.
    2. The county of Orawford could not contract debts.
    3. Iowa county cannot sue Orawford upon a cause of action which arose anterior to the time when they became bodies corporate.
    II. The relation existing between the two counties was created by the legislature, and was limited by the terms of the statute creating it. 4 U. S. Laws, 393.

      1. Iowa county took nothing by implication, but was governed by and restricted within the letter of tbe act. Medford-v. Pratt, 4 Pick. 226, 227 ; Hampshire v. Franklin, 16 Mass. 67 ; 4 U. S. Laws, 393.
    2. Orawford could not become a debtor to Iowa without its own consent, either expressed or implied. 2 Com. Cont. 151; Chit. Cont. 178, 179 ; Lightfoot v. Greed, 8 Taunt. 269, 270.
    3. As the statute is silent as to the expenses of the court, the law will presume that Iowa county should bear the whole expense, in consideration of the benefits it derived by having the court holden .within the county of Iowa. Hampshire v. Franklin, 16 Mass. 89.
    4. All the fines and forfeitures accrued to the benefit of Iowa county. Ludlow v. Sikes, 19 Pick. 328 ; Windham v. Portland, 4 Mass. 389; Stat. Mich. 1833, p. 501, § 1.
    III. Iowa comity is estopped from setting up any claim upon Orawford.

    1. The expenses were voluntarily paid by Iowa. Story’s Eq. PL, § 483.
    2. Iowa treated the accounts as debts against itself only, and passed upon and allowed the sums mentioned in the bill, without calling upon or consulting Orawford, thereby depriving Orawford of the opportunity of investigating the validity of the accounts claimed of Orawford.

    3. It is not admitted in the answer, nor is .there any testimony that any of the accounts were paid by Iowa.

    IY. There is no equity in the bill. Story’s Eq. PL, §§ 472, 482.
    1. It prays no account. 2. It seeks no discovery. 3. The remedy asked for is one at law.
    Y. The claim is barred by the statute of limitations and lapse of time. Mit. Pl. [272] 333-335, and note; Story’s Eq. PL, §§ 484, 485, 489, 503, 751, 851; Bank U. S. v. Daniel et al, 12 Pet. 56

      1. The alleged indebtedness accrued prior to July 4, 1836. The suit was commenced April, 1844. Ludlow v. Sikes, 19 Pick. 327; Story’s Eq. PL, § 847 ; Story’s Eq., § 64, and cases there cited ; id., § 529, and authorities there cited.

      Dunn <& Grawford, for appellees,
    argued that a copartnership existed between the counties of Iowa and Grawford, touching the expenses of holding the courts in the respective counties ; that this relation necessarily sprung from and was the result of the statute of Michigan, by which the courts were to be held for both counties; that inasmuch as Iowa county had paid all the expenses which had been paid, it was the right of that county to bring the county of Oraivford into a court of equity to account for and to pay its share and proportion of the expenses which had accrued for the mutual benefit of each.
   ITubbell, J.

This is a case of considerable peculiarity and interest, and it has received a corresponding consideration by the court.

The county of Iowa, by its legal representatives, brings suit against the county of Grawfordf by its legal representatives, for a large sum of money claimed to have been paid by the former, for the latter, for court expenses, while the two counties were united for judicial purposes. The bill alleges that the counties of Iowa and Grawford, by an act of the legislature of Michigan, in 1830, were attached for the purposes of circuit courts, which were holden at Mineral Point, from the spring of 1830 to July, 1836; that the sheriff, and other officers of Iowa county, acted for both counties during all this period, and that Iowa county paid all the expenses, except such as were defrayed by the United States, and claims that these expenses were incurred on joint account, and that Graw-ford is bound to refund one-half the amount. The bill claims $3,564.53, and interest from July, 1836, and prays for an accoimt and payment.

It was filed on the first day of April, 1844, and the case was decided upon bill, answer, replication and proofs.

The principal points of defense were: 1. That neither of the counties was a body corporate, under the laws of Michigan, and that neither could become a debtor or creditor. 2. That the relation between the two couuties was created and limited by statute, and that, as the statute is silent on the subject of expenses, Iowa takes nothing by implication. 8. That Iowa, having voluntarily paid expenses, is estopped from setting up any claim on Orawfoi'd. 4. That the claim is barred by the statute of limitations.

Several other points were raised, which it is not material to consider.

In order to the proper understanding of the relation of these parties, it will be necessary to examine somewhat into their history. On the 26th day of October, 1818, Orawfoi'd county was organized by proclamation of the governor of Michigan territory, embracing the present county of Iowa in its bounds, the county seat being located at Prairie du Chien. By an act of the legislature of Michigan, passed October 9, 1829, the separate county of'Iowa was set off from Orawfoi'd, and the seat of justice fixed at Mineral Point.

On the 2d of April, 1830, about six months after the organization of Iowa county, the following act of congress was passed:

“ That the term of the court appointed to be held annually, on the second Monday in May, at the village of Prairie du Chien, by the additional judge of the United States, for the territory of Michigan, shall be held on the first Monday in October, annually, at Mineral Point, in the county of Iowa, in the said territory; and the cases which shall be pending in the said court, on the second Monday in May next, shall be tried and determined at the time and place above designated in the county of Iowa, and the clerk and sheriff of said county shall be the clerk and sheriff of this court; and its jurisdiction shall be and continue the same as if said county of Orawford had not been divided.”

Under this act, the judicial proceedings of Orawford, so rar as the circuit court was concerned, were transferred to the county of Iowa, and the expenses alleged to have been incurred by Iowa, accrued in pursuance of this law. At the same time these counties had separate county courts, and were, in every respect, separate and independent. In 1836, by an act of the legislature of the territory of Wisconsin, passed at Behnont, the counties of Orawford and Iowa were, in form, constituted bodies corporate and politic, and the relationship which had existed between them, as to their circuit court, was finally dissolved. It does not appear that any specific grant of corporate powers had ever previously been made to either of the counties; at least no legislative act to that effect is found, and the proclamation of the governor of Michigan, organizing Orawford, is not at hand.

Certain it is, however, that their fiscal affairs were managed by boards of supervisors or commissioners, constituted by laws of the territory, who had the power of auditing accounts and charges against the county, and that all the ordinary expenses of comity government were, from time to time, audited and paid by taxes raised in the manner prescribed by law. The relation of debtor and creditor, on the part of the county, was recognized by such a series of legislative acts and public transactions that it would be now hardly reasonable or just to suffer either to exempt itself from liability on the ground of want of legal capacity. If the claim in the present case were admitted to be honest and lawful, the defense interposed upon this ground would partake so strongly of fraud as to compel this court to hold the defendant estopped from setting it up. This disposes of the respondents’ first point. The second is, that the relation between the two counties was created and limited by statute, and that, as the statute is silent on the subject of expenses, Iowa takes nothing by implication. This position is true in point of fact. No mention whatever is made, in any; of the several laws which have been referred to, of the expenses of the circuit court held at Mineral Point and exercising jurisdiction over the two counties. During the six years’ pendency of this united jurisdiction, both comities were represented in the legislative assembly of Michigan. Their respective rights, interests and wants must have been understood by their delegates, as well as the fact that Iowa was continually paying the current expenses of the court. The omission of the legislature, under these circumstances, to make any provision by law for the apportionment or joint payment of the court expenses is strongly significant of a common understanding at the time, that they were to be borne in the county where the courts were held. The auditing and paying of these sums wholly by the county of Iowa for a series of years also raises a strong presumption of the same fact.

In the Belmont legislature, also, both counties were represented, and yet a law, providing for their permanent separate jurisdiction and existence, was passed, without any provision for a settlement of their alleged joint liabilities. It is to be considered further, that the legislature well knew that a large part — indeed, quite the largest part — of the current expenses of the circuit court were paid by the general government (those of the judge, the grand jury, the clerk, etc.), and that most of the fees of other officers were collectable by law from the parties litigant. The expenses that remained might well be regarded as a fair equivalent for the superior advantage enjoyed by Iowa in having the county seat located at Mineral Point, and for the extra trouble and cost on the part of the inhabitants of Ckawford in traveling to and attending upon a distant court. This consideration was recognized in the case of The County of Hampshire v. The County of Franklin, 16 Mass. 76—a case remarkably similar to the present, and decided upon the same principle, except that the court held the parties bound by an award of commissioners, instead of adjudicating directly upon the question at issue.

C. J. PaRkee says : “ We do not see that Hamsphire would have any claim upon Franklin for a share of these expenses, for the act is silent about them; and, for aught which would appear, it was intended by the legislature and agreed to by the patties that the county of Hampshire should bear all this expense, in consideration of the inconveniences the inhabitants of Franklin would be subjected to in attending the court at such a distance from their homes, and the advantages which Hampshire would derive from being the judicial center of three counties.” These reasons would seem conclusive, as to the understanding and intention both of the legislature and the parties; and, in the absence of any statutory provision requiring payment of a part by Crawford, and in view of the voluntary payment of the whole by Iowa, this court might justly hold Iowa absolutely concluded by her silence and by her open acts.

But there is yet a stronger objection to the complainants’ recovery. This is a suit, in the nature of an action in assump-sit, for the recovery of a sum of money which Iowa claims she has paid for Crawford. To sustain such an action there must have been a request, express or implied, or a joint liability on the part of both counties. There was no express request in any form, and an implied one cannot well be drawn from the facts. The act of congress, transferring the courts, was compulsory upon the people of Crawford. Their seat of justice, which for many years had existed at Prairie du Chien, was transferred to a distant locality, and they were required to travel beyond them county limits, as well to obtain redress of their own grievances as to answer the demands of others; and this change was effected only a few months after Iowa was first set off from Graioford and organized as an independent county.

The presumption is quite as strong that congress intended, under the circumstances, that Iowa should pay the whole as that Cmwfo'd should pay a part. It is fair to observe, on this point, that when Iowa was set off from Crawford, by the act of 9th October, 1829, all suits then pending in Crawford county, in which the people of Iowa were concerned, were required to be prosecuted and concluded as if no separation had been made, and thus a considerable item of expense was thrown upon Crawford. By the same act the taxes of Iowa for the year 1829 were remitted. Laws Mich., 1833, pp. 675, 676.

No claim on this account has ever been set up by Crawford, and it would probably be thought absurd at this day to assume an implied request, on the part of Iowa, that Crawfoi d should pay her part of these joint expenses; yet such an assumption would be scarcely less violent than the present. There is, in truth, no ground in reason or fact to assume a request of Crawford that Iowa should pay the alleged bill of expenses. The only question that remains is, was there a joint legal liability ? There was none by express law. The act which required the circuit courts to be holden within the county of Iowa, as we have seen, is silent as to the expenses, and no implication can be raised from that silence hi favor of Iowa. But if the expenses were to be jointly paid, in what proportion ? Implications of law are founded upon reason and justice, and the reason and justice must be so clear as to admit of no doubt or denial. If a joint liability is implied, it must ailse from a joint interest and benefit; but, in this case, the benefit to the one may have been a positive injury to the other. It is impossible to adopt any scale by which the advantages, if there were any on the part of Crawford, can be ascertained. It is clear that the arrangement was not, and could not have been, mutually and equally beneficial; Iowa had the better side. But the circumstances of the two counties were so different that any attempt to ascertain their respective advantages must end in mere conjecture. The law does not raise implications, nor take away or confer rights upon conjecture. In a court of law this claim could not be maintained, .and the same principle rules in equity; indeed, there is no ground for pursuing this demand in equity, except the assumed necessity for a discovery from the respondents or the prayer for an account. The occasion for a discovery is not apparent, and the account is fully set forth in the complainants’ bill. But as the case is, in substance, fairly before this court, it has been deemed best to decide it here, and not send the parties into a court of law, to renew an unnecessary litigation.

Having arrived at the conclusions above stated, it is not necessary to discuss the other point growing out of the statute of limitations. It may be remarked, however, that the same rule of construction applies in equity as at law, and that, as the alleged liabilities on the part of Orawford accrued more than six years before the filing of the bill, the recovery would be cut off by the statute, unless it should be made to appear that there was a current account existing between the parties, of which some items had been paid or charged within the six years.

No evidence of such mutual account has been given. On every ground, therefore, it is believed that the defense has ■ been sustained, and the decree of the court below must be reversed, with costs.

Decree reversed accordingly.


author: Hujbbejll, J.

text:
    Getty et. al. v. Rountree.
    1. Pkactice — exceptions.—Exceptions taken at the trial should he noted and appear as having been taken when the matter to which they relate transpired; the formality of reducing them to form for signature may he subsequently attended to. Exceptions not taken in this manner will not he noticed.
    2. Warranty — implied—express.—On the sale of goods, etc., which are present and in view of the parties, no warranty of quality will he implied where none is expressly made, the rule of caveat emptor applyingto such a ease. But the sale of provisions to be used for food, or where there are fraudulent representations made by the vendor as to their quality, are exceptions to this rule; and so, too, where goods are sold by sample, in which case the law implies a warranty that the bulk will conform to the sample.
    3. Impmed warranty. — In executory contracts to furnish articles for a specific purpose by manufacturers, there was an implied warranty that the article delivered should answer the purpose for which it was designed, the jjurchaser having had no opportunity of testing it.
    4. Same. — "Where a manufacturer undertook to deliver a pump designed to exhaust water from a mine, there is an implied warranty on his part that in form and structure it shall be suitable for the purpose for which it was so intended by the purchaser.
    5. Warranty — remedy—recoupment.—In case of the breach of either an express or implied wairanty, the purchaser may bring his action thei’efor against the vendor, or if sued by him for the price, he may set off his damages in diminution of the price or sum to be paid; and he is not bound, in order to do so, to return or offer to return the article purchased, or to n atify the vendor of its defects. Fish v. Tank, 12 Wis. 276.
    6. Warranty — fraud.—Where there is fraud in the sale of a chattel, with or without warranty, it is competent for the vendee to return or offer to return the article purchased, and recover back the purchase money paid, with damages; but where there is a warranty, express or implied, but no fraud, he has no such right, but his remedy is confined to a suit for damages for breach of the warranty, or to recoupment of the damages out of the purchase price, in case he is sued for it.
    (2 Ghand. 28.)
    ERROR to the Circuit Court for Grant County.
    This was an action of assumpsit on a promissory note, executed by the defendants to the plaintiffs, who were manufacturers of pumps, for the price of a pump furnished by them to defendants, to be used for pumping water from a lead mine, under a contract with them; for the sum of $400.31, dated October 5, 1847, payable three months after date. The defendants pleaded- non-assumpsit, and, under that plea, gave notice that they would prove on the trial that the note was given for the balance due on the purchase of a certain pump, bought of the plaintiffs by defendants and sent to defendants, and which pump was defective and in bad condition for use; and they claimed to recoup out of said note the damages which they had sustained by reason of the defects in the pump.
    On the trial of the cause the defendants proved, as against the plaintiffs' claim upon the note, that the plunger of the pump was badly arranged and not regularly turned, and that the flanges did not correspond, by which they suffered damages to about the amount of four hundred dollars. The defendants gave no notice of these defects in the pump to the plaintiffs, but, upon the receipt of the pump, put it up and used it in them “lead diggings,” until it became unprofitable further to work them, and then sold the pump. There was no proof of any offer to return the pump to the plaintiffs, on the discovery of the defects. The jury found á verdict in favor of the plaintiffs for $66.43. A motion for a new trial was made by the plaintiffs, as based upon the alleged error in the charge of the court to the jury, and also for omission to charge the jury rightfully on the law of the case.
    The motion for a new trial assigned the following causes:
    1. The defendants did not prove any notice given to the plaintiffs of any defect in the pump, which formed the consideration of the note sued upon.
    2. That the court omitted to charge the jury that such notice was necessaiy in order to enable the defendants to withhold any part of the sum due on the note.
    3. That the court erred in the charge it did give, in this: the court charged as follows: “ The note itself imports a consideration, and prima facie makes out the plaintiffs’ case, and, in the absence of any defense, the plaintiffs, upon the production of the note in evidence to the jury, would be entitled to recover. In this case, however, a defense is set up. It is alleged that there is a failure of consideration, and this failure may be either total or partial. A total failure of considerar tion is, where the article furnished or delivered at a sound price is worthless or of no value, and wholly fails to answer the objects or purposes for which it was sold and for which itwask held out or represented by the seller to be suitable. A partial failure of consideration is where the article furnished is of some value, but fails in part to answer the purposes or object for which it was sold and for which it was held out or represented by the seller to be suitable, as, for instance, by reason of the materials being defective or of the work being done in an unskillful or unworkmanlike manner. If, applying these principles of law to this case, the jury believe, from the testimony submitted to them, that there was a total failure, in that case the plaintiffs are not entitled to recover. If, however, the jury are not satisfied, from the evidence submitted to them, that there was a total failure of consideration, but that the consideration of the note sued on and offered in evidence in this cause has partially failed, then in that case such partial failure of consideration will have the effect of reducing, pro tanto, the plaintiffs’ damages. When an article is ordered from a manufacturer for a specific purpose, and a sound price is paid for it, the law implies a warranty that such article is reasonably fit for the purposes for.which it was sold. In case of breach of warranty or of contract in the sale of chattels, the vendee may retain them and bring his action on the warrant}'', or, if he be sued for the price, he may, to avoid circuity of action, show a breach of contract in reduction of damages; and this principle applied to the case on trial. That it was not necessary for the defendants to offer to return the pump in order to make then defense available; that a return or offer to return is only necessary where the vendee of the article disaffirms the contract, and seeks to recover back the consideration paid. In that case he must return or offer to return the thing purchased in a reasonable time. That if the jury should find the pump to have been imperfect and not in conformity with the contract, in that case the legal rule would be to deduct from the price the sum constituting the difference in value.”
    4. Because the court errred in the rejection of a part of a certain deposition relating to the expenses of wood for running the engine, and other expenses, and because the court allowed certain expenses of defendants as set-off by way of reducing damages.
    The motion was denied. The counsel for the plaintiffs then moved the court for judgment for the amount of the note hr suit and the interest accrued thereon, notwithstanding the verdict of the jury. This motion was also overruled, and judgment was then rendered in favor of the plaintiffs for the verdict and costs, and-they prosecuted this writ of error to reverse the same.

      J. T. Mills, for plaintiffs in error,
    claimed that the charge given to the jury was erroneous, in regard to there being an implied warranty in the sale of the pump, and urged that no presumption of warranty in law arose in such a case. Also in that part of the charge relating to the recoupment of damages, and to these points cited 2 Kent Com. 480; 1 Cow. Treat. 356, 358 ; 15 Peters’ Ab. 372 n.; 2 id. 362, 363 ; 20 Wend. 61; 23 id. 350; 1 Camp. 193; 17 Wend. 263; 4 Esp. 95.
    As to the want of notice to plaintiffs of the defects of the pumps, there was reference made to Graham on New Trials, 293 ; 1 Cow. Treat 366 ; 2 Wend. 350.
    As to the right of new trial, the counsel cited Graham on New Trials, 453, 489; 7 Bac. Ab. L.; McLean v. Middleton, 2 Strange, 1259.

      Ben. O. Bastman, for defendants in error,
    insisted that when an article was ordered from a manufacturer for a specific purpose, and a sound price paid therefor, the law implies a warranty that the article is perfect, and fit for the purposes for which it was ordered. And to this point was cited 10 Law Lib. 174 (Ross on Vend.); Smith on Cont. 54; Law Lib. 54, 168; 2 Stark Ev. 902 ; 15 Eng. Com. L. 531; 1 id. 327 ; 2 id. 316 ; 9 Wend. 27, 28 ; Chitty on Cont. 450.
    That in case of fraud or breach of warranty, it is not necessary for the vendee to return, or offer to return, the defective article ip order to make a defense available in a suit brought to recover the price of the article, and that the vendee, in such a case, may set off the defects of the thing sold, as against the price of the article, upon the hypothesis that it was to have been sound, and as to this principle, was cited 7 East, 479 ; 14 Mass. 282, 285 ; 8 Wend. 109, 480, 483; 3 Hill, 171, 172; 13 Johns. 302 ; 22 Wend. 236 ; 7 Pick. 181; 23 id. 283; Story on Cont. 99, §§ 154, 551.
   Hujbbejll, J.

The plaintifis in error, who were manufacturers, residing at St. Louis, contracted in September, 1847, to deliver to the defendants in error, who were engaged in the business of mining, in Wisconsin, a pump, “used for pumping water from a lead mine/' The pump was delivered at Galena, about the last of October following, and the defendants soon afterwards put it up, in connection with a steam engine by which it was to be propelled, in their ■“ diggings.” The present suit was brought upon a promissory note for about $400, balance of the purchase money.

To the declaration, a plea of general issue was interposed, with a notice of defects and insufficiencies in the pump, on which the defendants claimed to recoup or reduce the plaintiffs’ damages, in the trial. There was no express warranty by the vendors, and the vendees neither returned, nor offered to return the article, nor gave any notice of its defects, previous to the suit. The jury found a verdict for the plaintiffs of sixty-six dollars and forty-three cents, and, afterwards, a motion for a new trial was made and overruled.

To this ruling, and to several matters in the instructions of the court to the jury, exceptions were taken by the plaintifis. But the bill of exceptions does not show, either at what time they were taken, or what was their precise form or substance. It was urged, on the argument, that the points made, on the motion for a new trial, were to be regarded as the substance of the plaintiffs exceptions oi grounds of error. This, however, is a very loose practice. Every exception intended to be relied on in error, should be taken and noted at the trial in conformity to the existing rules of court, and afterwards formally embodied in the bill of exceptions, signed by the judge. Hereafter this court will decline to consider any exception not so taken and brought before it.

The points of the plaintiffs in error, which it is material for the court to examine, arise upon portions of the judge’s charge to the jury, to which it is understood that exception was taken. Those portions are as follows:

“Where an article is ordered from a manufacturer for a specific purpose, and a sound price is paid for it, the law implies that such article is reasonably fit for the purposes for which it was ordered.
“In case of breach of warranty, or breach of contract in the sale of chattels, the vendee may retain the article and bring his action upon the warranty, or, if he be sued for the stipulated price of the article, he may, to avoid circuity of action, show such breach of warranty or breach of contract, in evidence, in reduction of damages; and the same rule which would apply in an action for breach of warranty or breach of contract, would apply on giving such breach in evidence in the action upon the note for the price of the article sold.
“It is not necessary to the maintenance of an action for breach of warranty, in the sale of personal property, that the plaintiff should have returned, or offered to return, the property sold. A return or offer must be shown only where the plaintiff disaffirms the contract and seeks to recover back the money or other consideration paid.
“ If, in this case, the jury should find from the evidence that there was a partial failure of consideration, by reason of the pump being imperfect or not completed in a workman-like manner, then the true criterion of a reduction of damages would be the difference between the value of a pump, com-: pleted and executed in a workman-like manner, and the actual value of such a pump as it was delivered to the defendants.”

The verdict of the jury, under the pleadings and evidence, must be regarded as conclusive of the fact of defects existing in the pump, in other words of a partial failure in the consideration of the note.

The substance of the plaintiffs’ objections may be resolved into two questions:

1. Was there an implied warranty of the article sold? and,

2. Ought the defendants, within a reasonable time after delivery, to have returned or offered to return the article, or to have given notice of its defects, in order to entitle them to their defense ?

The law has been long well settled, both in this country and in England, that on a sale and transfer of goods or chattels which are present and in view of the parties, no warranty of quality will be implied where none is expressly made. 1 Johns. 96; 4 id. 421; 5 id. 395 ; 4 Cow. 440 ; 13 Mass. 139; 17 Wend. 267; 23 id. 350; 1 Denio, 378; Chit. Cont., 3d Am. ed. 449 ; 2 Black. Com. 451; 6 Taunt. 108 ; 1 Camp. 190 ; 4 Cro. Jac. 4. This is the general rule of the common law upon an executed sale of specific chattels, and rests upon the old adage of caveat emptor. But there are several exceptions. One is a sale of provisions to be used as food. 3 Black. Com. 165 ; 12 Johns. 468. Another is, where there are fraudulent representations or concealments by the vendor. 4 Mass. 504; 18 Pick. 95; 8 Met. 550; 4 Eng. C. L. 486; 4 Camp. 144.

Another exception is, where there is a sale of goods by sample, in which case, although the bulk of the goods may be present or within the reach of the parties, the modern authorities generally hold that there is an implied warranty that the article shall agree in substance with the sample. 2 East, 314: 4 Barn. & Aid. 387; 18 Wend. 425; 1 Denio, 386; 2 Nott & McCord, 530.

In Sands v. Taylor, 5 Johns. 395, SpeNcer, C. J., says : “ It has frequently been decided here that on the sale of a commodity no action can be sustained for any difference in qualify between the thing contracted for and the thing delivered, unless there be fraud or a warranty. I am disposed to confine this rule to the case of a sale where the thing sold is exhibited, and am ready to admit that on sales by sample there is an implied warranty that the sample, taken in the usual way, is a fair specimen of the thing sold.” In Oneida Manufacturing Society v. Lawrence, 4 Cow. 440, which was a sale of cotton by sample, the same doctrine was applied, “ though the plaintiff’s agent saw the bags in which the cotton was packed.” And the learned court of South Carolina had previously decided the same principle in 2 Nott & McCord, 540.

I think this may be regarded settled law, both in England and America, although in these cases the British judges led the way in a departure' from the old rule of the common law, in favor of what has been regarded by distinguished jurists as the more doubtful one of the civil law. Moses v. Mead, 1 Denio, 378; Hart v. Wright, 17 Wend. 276, and remarks of Paige, Senator, in Waring v. Mason, 18 Wend. 439. I do not understand, however, that there has been any attempt to disturb the settled doctrine of caveat emptor, nor to establish as law what has been termed the “moral beauty” of the Roman code, caveat venditor, but to mark distinctly certain cases which alike reason and policy require to be excepted from the rigidity of the one and the laxity of the other.

But executory contracts, and contracts to furnish articles for a specific purpose, especially by manufacturers, have generally been regarded as resting on a different basis. In such cases there is held to be an implied warranty that the article delivered shall ansyer the purpose for which it was designed, inasmuch as the parties have no opportunity to inspect it, or to decide upon its fitness in the first instance.

Jones v. Bright, 5 Bing. 533, is the leading case in England on this subject, in which nearly all the judges gave their views at length, affirming Gardner v. Gray, 1 Camp. 144, and Bluett v. Osborne, 1 Stark. 384, before decided by Lord ElleNBOROugh. Jones v. Bright was a contract for copper in sheets. Fisher, a mutual acquaintance of the parties, introduced them to each other, saying to the defendants, “ Mr. Jones is in want of some copper for sheathing a vessel, and I have pleasure in recommending him to you, knowing you will sell him a good article.” One of the defendants answered, “Your friend may depend on it, we will supply him well.” The copper was afterwards selected by the plaintiff's agent, who saw “nothing amiss,” and the invoice described the article as “ copper for the ship Isabella.” The plaintiff paid the market price for it, as for copper of the best quality. The ship proceeded on a voyage to Sierra Leone, and the copper, instead of lasting four or five years, the usual duration, of copper employed in sheathing vessels, at the end of four or five months greatly corroded, and was unfit for further service. Best, C. J., says: “I wish to put the case on a broad principle. If a man sells an article, he thereby warrants it to be merchantable, that it is fit for some purpose. This was established in Laing v. Fidgeon. If he sells it for a particular purpose, he thereby warrants it fit for that purpose; and no case has been decided otherwise, although there are doubtless some dieta to the contrary.” Park, J., observes : • “ On the case itself I have no doubt, distinguishing, as I do, between the manufacturer of an article and the mere seller.” Again: “It has been argued that in all cases there must have been a warranty or a scienter and fraud. Perhaps so; but till the cause comes to proof, it cannot appear whether the warranty be express or implied; and it will be enough to show that there is an implied warranty from the nature of the dealings between the parties. In tbe case referred to, the point has been decided to the fall extent that the plaintiff requires in this case. The principal object of attack has been the case of Gray v. Cox, where Lord TendereeN said ‘ that if a person sold a commodity for a particular purpose, he must be understood to warrant it reasonably fit and proper for such purpose. And this is not to be esteemed an obiter diotum, because the other judges differed from him. It is his judgment formally given, and goes to support the argument for the plaintiff in this cause.’

“ In Fisher v. Samuda, the plaintiff had paid for the .goods after an action had been brought against him for the price, in which he did not, either in bar or reduction of damages, object to the quality of the goods, so that he may be said to have acquiesced in the defect, and the case has no bearing on the present. In Laing v. Fidgeon the rule is laid down in the strongest terms, and no man had more knowledge of commercial law than Chief Justice Gebbs. In Gardner v. Gray Lord EleeNBORotigh lays down the same rule, and says that the principle of caveat emptor does not apply where the buyer has no opportunity of inspection. It has been argued that the plaintiff had inspection here, but it was merely of the exterior of the commodity, and he had no means of knowing the intrinsic qualities. In Okell v. Smith it was laid down that the seller is bound > to furnish a commodity that will answer the purpose for which it was sold; and Lord ElleN-borough said, in Bluett v. Osborne, that by selling an article, the vendor impliedly warrants it fit for the purpose for which it is sold, and that it is important for the interests of commerce that it should be so. I am therefore clearly of the opinion that the verdict for the plaintiff should stand.”

I know of no English case which shakes the principle here established. In our own courts there has been a strong inclination to confine the rule to sales for a specific purpose, where there was an impossibility of inspecting the article.

In Hart v. Wright, tbe cases are all cited, and commented upon by CoweN, J., with bis usual ability and research, but tbe point settled in that case does not conflict with tbe doctrine that an article sold for a specific purpose must be reasonably fit for tbe use intended; and in Howard v. Hoey, 23 Wend. 350, tbe same learned judge reviews tbe cases relating to executory contracts, and not only approves of the English decisions, but concurs with NelsoN, C. J., in Gallagher v. Waring, 9 Wend. 28, that “suitableness enters into every promise to deliver articles of manufacture.”

I am clear, therefore, that in tbe present case, where tbe plaintiffs, who were manufacturers, undertook to deliver a pump designed for pumping water out of lead mines, there was an implied warranty that, in form and construction, it should be suitable for tbe puqaose intended by tbe buyers; and tbe charge of tbe court on this point was correct.

With respect to tbe rights of tbe defendants in this action, it presents tbe ordinary case of a breach of warranty. Tbe defendants were at liberty, either to bring a separate action to recover their damages for tbe breach or to avail themselves of it in the present action, and reduce tbe damages of tbe plaintiffs to tbe value of tbe chattel sold. On this point also tbe charge was correct. Perley v. Balch, 23 Pick. 283; Borockins v. Bevan, 3 Rawle, 23; McAllister v. Read, 4 Wend. 483; Howard v. Hoey, 23; id. 350.

The fact that there was a promissory note raises no barrier to recoupment. Batterman v. Pierce, 3 Hill, 171, was a suit upon promissory note, and tbe defense was held good; and tbe whole doctrine of recoupment is there so ably discussed and so aptly illustrated by BroNSON, J., that I need merely refer to it for all tbe law on tbe subject. See, also, Basten v. Butter, 7 East, 490; Germaine v. Burton, 3 Stark. 32; Poulton v. Lattimore, 9 Barn. & C. 259. But tbe omission to set up such a defense would have been treated, in a subsequent action of tbe vendees on a breach of tbe warranty, as a waiver of their claim for damages. Fisher v. Samuda, 1 Camp. 190.

I proceed to the last point.

When there is fraud in a sale of chattels, either with or without warranty, it is competent for the vendee to return or offer to return the article sold and recover back his purchase money, because the sale is void in law. This is necessary where he intends to rescind the contract and sue for or defeat the recovery of the whole purchase money. But it is not necessary where he intends to bring suit for the damages merely, by reason of the breach of warranty, or to set up the breach by way of reducing the vendor’s recovery. Chitty on Cont. 5th Am, ed. 458, and cases there cited; 3 Rawle, 23; 2 Stark. Ev. 640, 645; 1 Mason, 437; 4 Wend. 483; 2 Pick. 215; 12 Wheat. 183.

Where there is a warranty and no fraud, the vendee is not entitled, against the will of the vendor, to return the article and recover back the price paid. Cary v. Gruman, 4 Hill, 625; Kase v. John, 10 Watts, 109; Sheet v. Clay, 2 Barn. & Al. 456. His only remedy is, by a suit for damages, or by recoupment, in case of an action for the purchase money. Unless, therefore, in the present case, there was proof of fraud. on the part of the vendors — of which none appears — the defendants could not compel them to take back the pump, and there was no occasion for making a useless tender of what the plaintiffs might accept or refuse. Nor was there any necessity of a notice of defects; the notice annexed to the plea was alike sufficient in law and in reason.

The defendants had already paid half the price of a sound article, had spent much time and money in transporting it to their mine and setting it in operation, in connection with other fixtures, and it failed to work well by reason of its improper or imperfect construction. To return it and resort to an action for the recovery of their money paid, would have been but adding to their losses. Yet a notice of its defects to the plaintiffs would have been idle, except to bind them to take it back, wbieh tbe defendants conld not permit, or give tbe defendants a better claim for returning it, wbicb, as we have seen, tbe plaintiffs might refuse. But tbe law required no sucb notice. Tbe remedy of tbe defendants consisted in reducing tbe plaintiffs’ demand to tbe actual value of tbe article dehv-ered. This was them legal right. Cary v. Gruman, 4 Hill, 625. And this has been done, not by rescinding tbe contract, nor by treating it as void for fraud, but by letting in an equitable defense, consistent with tbe retention of the property and tbe affirmance of tbe sale by tbe v.endees.

I am satisfied with tbe instructions of tbe court and tbe verdict of tbe jury.

Judgment affirmed, with costs.


author: WhitoN, J.

text:
    Bean v. Moore et al.
    1. Amendments. — The power given to the courts by statute to amend any process, pleading, etc., is not mandatory, but it rests in the sound discretion of the court to grant or refuse an amendment.
    2. Same — error.—The decision of the court, upon an application to amend, can be assigned as error only in cases of marked abuse of discretion. Where the court, after the jury were sworn, refused the plaintiff’s application to amend his declaration a second time, and the plaintiff thereupon submitted to a nonsuit, held, that this ruling was not an abuse of discretion.
    (2 Ohand. 44.)
    EEEOE to tbe Ch’cuit Court for Portage County;
    This was an action of assumpsit. At tbe circuit, and before tbe cause was reached, tbe plaintiff’s attorney made a motion for leave to amend bis declaration, by entering a discontinuance as to one of tbe defendants, which motion was granted. After tbe granting of this motion tbe parties declared themselves ready for tbe trial of tbe cause, and a jury was empan-neled and sworn for that purpose. Tbe plaintiff then made a motion further to amend the declaration, by adding a new special count. The motion was overruled, and thereupon the plaintiff submitted to a nonsuit, upon the qualification that, if the court should, upon writ of error, reverse the decision denying the motion to amend, then the nonsuit should be set aside or waived, and the cause be tried. The plaintiff then took an exception to the ruling, denying the motion further to amend, and the case comes here upon such exception.

      M. M. Strong, for plaintiff in error.

      Oollins & Alban, for defendant in error.
   WhitoN, J.

The plaintiff in this cause, after the trial had begun, moved for leave to amend his declaration by adding a special count. This was refused, and thereupon he submitted to a nonsuit, subject to the opinion of this court.

The power is given by our statute of amendments to the court to amend any process, pleadings or proceedings, at any time before judgment, for the furtherance of justice. The statute is in no sense mandatory, nor is any absolute right secured to parties litigant. The power is wisely given to the court, for the benefit of suitors, and for the dispatch of business, to be exercised within its sound discretion.

Hence, the ruling in this cause is not strictly a matter subject to a writ of error, and it is only in cases of marked abuse of discretion that this court will entertain such a question.

Whether leave should be given to amend, must depend upon the circumstances of each case, for no rule can be laid down which will be applicable to every case in court.

Judgment affirmed.


author: Jackson, J.

text:
    Werner v. Schreck.
    1. Exceptions. — Exceptions to the instructions of the court to the jury will not be noticed, unless the bill of exceptions states the testimony so that the court can decide whether there is any foundation for the exceptions.
    (2 Ghand. 46.)
    ERROR to the Circuit Court for Milwaukee County.
    This was an action of assumpsit for work, labor and services rendered under a special contract for the erection of a building by the plaintiff in error for the defendant in error.
    The error upon which the cause was brought into this court, consists in the charge of the court to the jury, relating to the subject-matter of the contract and the evidence given on the trial, but which evidence was not stated hi the bill of exceptions. The only importance attached to the case, as it came before this court, and as decided by it, seems to be, that if exceptions are taken to the charge of the court, on the trial of a cause, which charge relates to the evidence given therein, the evidence must be stated in the bill of exceptions in order that this court -may see that the charge was inapt to that evidence, and erroneous.

      H. 8. Orton, for plaintiff in error.

      J. 8. Brown, for defendant in error.
   Jackson, J.

The error alleged in this cause is based upon the following charge to, the jury, of the judge before whom it was tried:

“ In the opinion of the court the plaintiff was required by the contract to perform work within two months from the commencement of the same, only to the amount of one hundred and thirty dollars, the price of the lot mentioned in said contract, and the residue of said work might be performed any time within a reasonable period under the terms of said contract.”

And, also, upon his refusal to charge as follows:

That the jury must find by the testimony, that the plaintiff completed the building of the house, except plastering the roof, within two months from the commencement of the work, or the plaintiff could not recover upon the special agreement set out in his petition, and setting out no other agreement he could not recover at all.”

The correctness of these objections can only be determined by a reference to the testimony given upon the trial.

Upon examining the bill of exceptions, I find no portion of the testimony is presented, nor is its substance even stated.

Nothing appears, therefore, upon the record to sustain the allegation of error, and this court must presume that the instructions of the court below were correct;

Judgment affirmed.


author: Hubbell, J.

text:
    Pratt v. Pratt et al.
    1. Attachment — aeetdavit.—Proceedings by attachment are among the most summary and stringent known to the law, and should strictly conform to the statute authorizing them.
    2. Same. — Under the late territorial statute, the facts and circumstances upon which the writ is claimed, should he stated in clear and intelligible terms, to enable the officer to judge of the propriety of allowing it. Mere hearsay as to the declared intention of a party to fraudulently convey, etc., is not sufficient, but the affidavit of the person who heard the declaration or knows the fact, should be produced.
    3. Same. — "Where cause for granting the writ is shown only as against one or more of several defendants, the writ ought not to be granted, unless the other defendant or defendants are insolvent or out of the jurisdiction of the court.
    (2 Ohand. 48.)
    ERROR to the Circuit Court for Saule Comity.
    This suit was instituted in the court below by attachment. The affidavit upon which the writ issued, after setting out the indebtedness of tbe defendants, alleged that they were about fraudulently to remove and convey their property to defraud their creditors, and particularly the plaintiff; that the affiant had been informed by the intimate acquaintances of two of the defendants, and believed that they had said that they would remove and convey their property beyond the plaintiff’s reach, and that they had intended to remove it beyond Ms reach before that time; that the affiant had been informed in the same manner, and verily believed that the said two defendants had repeatedly said they would never pay the plaintiff, but would convey then property beyond his reach; that one of the defendants had told the affiant that they would" not pay the plaintiff his debt until they were obliged to, and that they should sell their jaroperty immediately ; that the affiant had been informed by credible persons that they intended to dispose of their property, subject to be taken in execution, at the earliest opportunity, for cash, to prevent, hinder or delay the plaintiff from the collection of his debt; that one of the defendants had then recently told the affiant that he should remove his property out of the plaintiff’s reach, and that the defendants had property subject to attachment.
    Under the attachment issued upon this affidavit the property of the defendants was taken, and a schedule thereof returned; and at the return term of the attachment two of the defendants appeared and filed a motion to quash it, upon the following grounds:
    1. That the nature of the indebtedness was not set out with sufficient' certainty. 2. That there were no facts or circum-. stances stated in the affidavit on wMch'the writ issued, that warranted the belief that the defendants were about fraudulently to dispose of their property, etc. 3. That the affidavit was not traversable, because it did not show to whom the statements therein alleged to have been made, were made. 4. That there was no seal to the writ. 5. That the sheriff did not appraise the property attached. 6. That the affidavit was bad for uncertainty. 7. That though the affidavit was true, it was not sufficient to warrant the issuing the attachment.
    This motion was sustained by the court, and the writ quashed on the ground of the insufficiency of the affidavit, and a judgment was rendered for the defendants, and a restitution of the property attached awarded to them.
    The plaintiff assigned for error here, that the court below erred in quashing the writ, and claimed that the affidavit was sufficient.

      Qhauncey Abbott, for plaintiff in error.

      A. L. Collins, for defendants in error.
   Hubbell, J.

This is the common case of a writ of attachment, under the late statute of this state, issued on affidavit.

In the court below the writ was ' quashed, on motion, for insufficiency of the affidavit.

The question on error here is the’ same as there, to wit, how far it was necessary for the affiant to show, by facts and circumstances, that the defendants were all about fraudulently to remove or convey then property, so as to hinder and delay then creditors. There are three defendants. The affiant, after swearing to the indebtedness, states positively that the defendants (naming them all) “ are about fraudulently to remove and convey their property, so as to hinder and delay then creditors.” This statement must be taken as an expression of a belief or opinion, in other words, as a legal conclusion drawn from facts and circumstances within the affiant’s knowledge. The statute contemplates the expression of a belief as to the fraudulent intention, and properly requires that “the facts and circumstances on which such belief is founded ” shall be set forth for the judgment of the officer who allows the writ. The affiant proceeds to specify the facts and circumstances on which his principal statement is based, but not in as clear and intelligible terms as could be desired. A majority of the court understand him to say that he had been informed, and believed that Lewis Hayes and Josiali Hayes had said that they would remove and convey their property beyond his reach, and that they never would pay him; and further4, that Lewis Hayes told him, the affiant, that they (meaning the two defendants Hayes) would not pay the debt, and should sell and dispose of their property immediately, and remove it out of his reach. The first part of this statement is merely hearsay. The affidavits of the persons to whom the Hayes' made their declarations should have been given. The last clause is direct, and sufficient as to the intention of the two Hayes'; and if it had been coupled with a statement that the other defendant was insolvent, or out of the jurisdiction of the court, the affidavit might have been sustained. The statements may be strictly true, and yet the defendant Pratt might have had abundant means to pay, and the affiant have been perfectly secure. In the present shape, the affidavit is entirely consistent, not only with the affiant’s ample security, but with a collusion between him and the defendant Pratt to coerce the other defendants, by this proceeding, to pay the whole debt.

Proceedings by attachment are among the most summary and stringent known to the law, and they should be confined strictly within the limits of the statute by which they are authorized. In the present case it is easy to see, as in many others, that the process of the law might be perverted to purposes of oppression if the only proper rule in regard to its allowance were to be relaxed. Without imputing any improper motive to the plaintiff, the judgment below must be affirmed upon general principles.

Judgment affirmed with costs.

      Where a cause exists for an attachment against the property of one defendant in an action, the writ may issue against liis property, though no cause for issuing it exists as to his co-defendant, and on such writ any interest which he may have in any property with such co-defendant or others as joint owner may be seized, and the officer may, by virtue of it, take and retain possession of such property. Bank of Northwest v. Taylor et al., 16 Wis. 609.


text:
    Saxby et al. v. Neal.
    1. Evidence — deposition.—'Where process is sued out against two, but is served on only one, and the other does not appear or plead, the deposition of the party not served cannot be taken and read on the trial against his co-defendant, at least not without notice given under the statute relating to the swearing or taking the depositions of parlies.
    (2 GTicmd. 53.)
    ERROR to the Circuit Court for JRocTc County.
    This was an action of assumpsit, brought against the plaintiffs in error, by the defendant in error, by summons, but the summons was served upon only one of them. The party summoned appeared and pleaded issuably, but the other defendant did not appear.
    On the trial the defendant in error offered in evidence the deposition of Curtis, the other plaintiff in error, assumed to have been taken under the provisions of the statutes of 1841. Objection was made to the reading of the deposition by Saxby, but the court ruled it admissible, and it was read. To the ruling of the court the counsel of Saxby excepted. A recovery was had in favor of the defendant in error, and the cause came into this court by a writ of error based on the exception so taken.

      David JSToggle, for plaintiff in error,
    contended that the deposition of a party not served with process and not appearing in the action, could not be received as evidence, nor the party himself examined as a witness, under the provisions of the statute, unless he had been served with process; unless his co-party in the action should have been notified that he also was to be examined on the trial. And to this point was cited 4 Eng. Com. Law, 48; 19 Wend. 353 ; 3 Scam. 463 ; 1 Gilm. 358-360 ; 1 Greenl. Ev. 421, § 353.

      J. M. Keep, for defendant in error,
    contended that the examination of Curtiss was independent of the statute of Wis-cousin, and was therefore admissible; and that under tbe statute tbe examination was admissible as taken. He also claimed that no notice was required or necessary to have been given to Saxby of tbe examination of Curtiss.

   WhitoN, J.

Tbe error assigned in this case is, that tbe circuit judge, before whom tbe cause was tried, permitted the deposition of Curtiss, one of tbe plaintiffs in error, to be read in evidence to tbe jury. It appears that Neal sued Saxby and Curtiss in tbe late district court of tbe territory. Tbe summons was served on Saxby alone, who appeared and pleaded to tbe action. Curtiss did not appear. A trial was bad in tbe circuit court for Rock county, at which tbe defendant in error offered to read tbe deposition of Curtiss, taken in pursuance of a statute of tbe territory (Laws of 1841, p. 26). By tbe statute referred to, either party might give notice to tbe adverse party that be wished to have him sworn as a witness in tbe cause; and if tbe party notified did not appear and testify, or did not take and produce bis deposition (as in certain cases provided for by tbe statute be might do), then tbe party giving tbe notice might himself be sworn as a witness.

Tbe bill of exceptions shows that Saxby, by Ms attorney, objected to tbe introduction of tbe deposition of Curtiss, above alluded to, on various grounds, but tbe objection was overruled, and tbe deposition was read in evidence to tbe jury.

That tbe ruling of tbe court in permitting tbe deposition to go to tbe jury as evidence, when objected to by Saxby, was erroneous there can be no doubt. It is not necessary to decide whether tbe defendant in error should have been permitted to testify, upon tbe failure of Saxby to produce tbe deposition of Curtiss, had be offered Mmself as a witness; but it is clear that as Saxby alone was served with tbe process, and alone appeared to defend the suit, tbe deposition should not have been read to tbe jury if be objected.

The plaintiff should have called upon the attorney who defended the suit, to produce Curtiss, or his deposition, pursuant to the notice which had been served; and upon the failure of Curtiss to appear, or to produce his deposition, taken in conformity with the statute, should have offered himself as a witness. That would havé brought before the court the question, whether, under the circumstances of the case, Curtiss was properly a party to whom notice to testily could be given under the statute.

Judgment reversed.


text:
    Borah v. Martin.
    1. Practice — exceptions.—There is no presumption from the fact that exceptions were taken, that they were taken at the time when the alleged faults occurred; unless the hill alleges, or it appears that they were so taken, they will not he regarded.
    2. New tkiax.' — -An exception to the ruling of the court in refusing to set aside the verdict of the jury as being contrary to evidence, will not be sustained upon slight or uncertain grounds.
    (2 Chand. 56.)
    ERROR to the Circuit Court for Grant County.
    This was an action.of assumpsit brought by the defendant in error, against the plaintiff in error as administrator of Joseph Martin, deceased, for the recovery of a debt due from Martin in his life-time, for work, labor and services done and performed by the defendant in error for him.
    The plaintiff in error pleaded non-assumpsit and gave notice of set-off. On the trial of the cause the jury found a verdict in favor of the plaintiff below, and assessed his damages at two hundred dollars.
    The defendant below moved for a new trial, on the ground that the charge of the court to the jury was erroneous, and calculated to mislead them hi this ; “ that if the jury found, from tbe evidence, that the services charged for and performed were rendered gratuitously by the plaintiff, and were nothing more than the ordinary services rendered by a parent while living with a child, and no more than ordinarily flow from the relations of parent and child, and were not intended or designed to be charged for on the one hand, or paid for on the other, and were so rendered and so received, such being the mutual understanding of the parties, then and in that case the plaintiff could not recover.
    “ 2. That inasmuch as it was in evidence that the plaintiff, a widow, performed the services while living with her son, defendant’s intestate, the court should have instructed the jury they could not find for plaintiff, unless the jury found it was the understanding of plaintiff and intestate that the former should be paid.”
    The motion was overruled and judgment entered on the verdict.
    Counsel for the defendant below took an exception as follows : “To which ruling of his honor, defendant by Ins counsel excepts, and prays that this his bill of exceptions may be signed and sealed and made a part of the record in this cause.”
    The judge, in settling this exception, appended thereto the following note, to wit: 11 The instruction quoted in the motion for a new trial was given, together with other instructions, and no exception was taken to any instruction given by the court at the time it was given.” Upon this state of the case, it came before this court.

      J. T. Mills, for plaintiff in error.

      Ben. O. Bastman, for defendant in error
   Larrabee, J.

We cannot ascertain, from the record, whether an exception was taken to the charge given to the jury, before or after verdict.

The memorandum of the judge shows that no exception was taken at the time the charge was given, and the plaintiff in error contends that the presumption lies in his favor that the exception was made before verdict, because the contrary does not appear. This is not so. We caimot thus presume in favor of the plaintiff in error; he should have taken his exceptions at the proper time, and had them appear seriatim in his bill of exceptions. The only source from which we can infer an objection to the charge, much less a legal exception, is the motion for a new trial, which was, of course, after verdict. Hence we are not at liberty to pass upon this assignment of error.

We see no ground for reversal in the second error assigned. There was a simple question as to the character of the service rendered, and this was to be determined from weighing all the evidence in the cause. This was exclusively the province of the jury, and this court will not, upon slight grounds, interfere with that decision.

Judgment affirmed.


text:
    Driggs v. Morely.
    1. Equity — uaktnekship.—M. & W. were partners; D. purchased W.’s interest in the business, and after D. & M. had transacted business for a time, D. filed a bill for the dissolution of an alleged partnership between him and M., and for a sale of the partnership property, etc., and also an accounting as to all matters growing out of the partnership of W. & M., in which he was interested by purchase; the proof failing to show a partnership between D. & M., held, that it was error to dismiss the bill, as D. was entitled to an accounting by virtue of such purchase, in relation to the business of the partnership of W. & M.
    (2 Ohand. 59.)
    APPEAL from the Circuit Court for Dodge County.
    The opinion of the court furnishes a sufficient statement of the case in the court below, for all the purposes of understanding the point determined op the appeal.

      A. L. Williams, for appellant.

      JR. P. Eaton, for appellee.
   Larrabee, J.

The bill of complaint in this cause alleges a partnership, prays that it be dissolved, and that the partnership property, consisting of certain real estate and personal property, be sold; it also prays an accounting as to all matters growing out of the partnership, and also of certain unsettled accounts between the defendant and one Wheeler, his former partner, whose interest, in the property Driggs purchased, subsequent to his death. The decree at the circuit dismissed the bill, on the ground that the proofs did not sustain a partnership between Driggs and Marely. But, as it appears that there are certain unsettled accounts growing out of the business connection of Wheeler and Marely, and as Driggs has an interest in these by virtue of his purchase, he has a right to an accounting as to these, at least. For this reason the decree of the circuit court must be reversed, and the cause remanded for further proceedings. We do not deem it necessary to decide the question of partnership, as the complainant has the right, independent of this, to have the accounts of the former parnership referred.

Decree reversed.