text:
    Runey vs. Thompson.
    1. Witness—interest oe. The interest of a witness to exclude Mm, must be direct and not consequential, and where he is interested in the question but not in the event of the suit, the objection goes only to his credibility and not to his competency.
    2. Same. In an action of replevin brought against A, where he pleads property in B, it is well settled that B is a competent witness for the defendant to sustain the plea.
    ERROR to the District Court for Dane County.

      Thompson brought an action of replevin against Runey for the unlawful detention of a wagon and four oxen. The defendant pleaded non detinet, and also property in one Rezin Runey; and issue was taken on both pleas. The case was tried, and the jury returned a verdict in favor of the plaintiff, and assessed his damages at $61.33 upon which judgment was rendered. The defendant moved for a new trial upon the following ground among others: That the court improperly rejected Rezin Runey, a witness offered by defendant.
    The court awarded a new trial on condition of paying all costs in thirty days, otherwise judgment was to be entered on the verdict. It appears by the bill of exceptions that, on the trial, the defendant offered Rezin Runey, as a witness to prove that the property replevied was in him, Rezin Runey, and never was the property of the defendant. He was objected to by the plaintiff as incompetent, and the objection was sustained, it being made to appear that Rezin Runey, the witness offered, had an action of replevin pending against the plaintiff Thompson for the same property. The costs were not paid, and judgment was entered on the verdict.

      A. L. Collins and Edward V. Whiton, for plaintiff in error,
    contended, that the objection to Rezin Runey went only to his credibility, and not to his competency. Bliss v. Thompson, 1 Mass. 93; 13 id. 197; 4 Barn. & Aid. 410; 1 Yeates, 84; 7 Wheat. 365.

      OTumncey Abbott and John Gatlin, for defendant in error,
    cited 4 Johns. 243 ; Eoscoe, Ev. 357 ; 4 Esp. 164; 5 id. 272 ; 2 Campb. 92.
   Miller, J.

The defendant Bartley Buney, in this action of replevin, pleaded property in one Eezin Enney. Upon the trial said Eezin was offered as a witness on the part of the defendant, which offer was objected to by plaintiff, and overruled by the court. It appeared to the court that said Eezin had at the same time, an action of replevin pending for the same property.

The difference between an interest in the question, and interest in the event of the suit, is well understood. The former may materially affect the credit of the witness, but can never destroy his competency. The interest of a witness, to exclude him, must be direct and not consequential. In general the liability of a witness to a like action, or his standing in the same predicament, with the party sued, if the verdict cannot be given in evidence foi or against him, is an interest in the question, and does not exclude him. Evans v. Eaton, 7 Wheat. 365. The judgment in this case cannot affect the cause of the witness pending. Legally, he is indifferent as to the event of this cause. He is neither to gain or lose by the decision, whether for or against the defendant. In his case, this record cannot be read in evidence.

That he is a competent witness on the part of the defendant, is conclusively settled. In the case of Wood v. Wilkinson, 4 Barn. & Adolph, it is decided, that in trover, the owner of the property in question is a competent witness to prove property in himself. Also in Mix v. Cutting, 4 Taunt. 18. In Bush v. Lyon, 9 Cowen, 52, it is. decided, that one who claims property in himself, in the chattel in question, in an action of. trover, is a competent witness for the defendant to show such property, whether it be special or general. The same doctrine is laid down in Starkie on Evidence, 1508. In Page v. Weeks, 13 Mass. 199, it is decided, that in replevin, where the defendant pleaded property in one Stevens, he (Stevens) was a legal witness to sustain this plea.

The point is so clearly settled, that the judgment of the district court must be reversed with costs.


source: Caselaw Access Project

author: Dunn, C. J.

license: Public Domain

text:
    United States vs. De Coursey.
    1. Title oe united states—presumptions. In an action brought by the United States for trespass on the public lands, the court is bound to know and take notice of the laws and treaties of the United States and if the land upon wbicb the alleged trespass was committed was included in any treaty ceding it to the United States, the title is presumed to remain in the government, until it is proved that it has parted with it.
    ERROR to the District Court for Jefferson County.
    The case is stated in the opinion of the court.

      A. L. Collins, for plaintiff in error.

      Edward V. Whiton, for defendant in error.
   Dunn, C. J.

The United States, by its attorney, brought an action of trespass, guare clausum fregit, for entering the close of the plaintiff, described in its declaration, and cutting and carrying away trees, against the defendant in the district court of Jefferson county.

On the trial, the court was requested to instruct the jury that “the court and jury were bound to know and take notice of all laws and treaties of the United States ; and that if the land upon which the alleged trespass was committed was included in any such treaties, the title was to be presumed to remain in the United States, unless there was evidence showing that the United States had parted with the title. ’ ’ The court refused the instruction.

It is unnecessary to examine minutely this point, as it does not admit of doubt that the instruction should have been given, if the plaintiffs had any testimony tending to prove the act of trespass complained of; and the instruction must have been refused for the reason that there was no act of trespass proven.

We are, however, constrained to view and dispose of the case upon the record. It presents a naked proposition ; there is no evidence returned ; nor is there even a suggestion on the record of the want of evidence to support the issue on the part of plaintiff which would be of itself a sufficient reason for refusing the instruction as inapplicable to the plaintiffs’ case as made out.

We are of opinion that the district court erred in refusing the instruction asked for, and that its judgment herein be reversed, with costs, and the case remanded for further proceedings consistent with this opinion.


text:
    Wood et al. vs. Folmer.
    1. Action op tort—discharge op one dependant. In an action for tort, when the plaintiff has closed his case, if no evidence has been produced against a particular defendant, he will be discharged by a verdict in his favor, and then he may be a witness for the other defendants; but if there is slight evidence against him, he cannot be dis- . charged, and the want of evidence must be so obvious as to afford strong grounds of belief that he was made a party, arbitrarily, to prevent the use of his testimony, in which case he may be discharged by the court, without a formal verdict in his favor.
    2. Ruling on entire proposition. Where a motion is made to acquit three of the defendants, for the reason that there is no testimony against them or either of them, it is not error for the court to rule upon the proposition as made, and if there is any evidence against any one of the three to overrule it.
    EEEOE to the District Court for Boole County.

      Folmer commenced an action of trespass against Wood, Stone, Trasle, William P. Hammond, and Theodore Hammond, for taking and carrying away a raft of timber. The defendants pleaded jointly not guilty. The jury found all the defendants guilty except William, P. Hammond, who they found not guilty. The motions made during the trial are stated in the opinion of the court. Appended to the bill of exceptions containing the testimony, is the following note by the district judge:
    “The foregoing statement of the evidence is from the recollection of the testimony of the attorney in the cause, and may, in the main, be correct so far as it goes, but it is not all the testimony that was given in the cause. The exceptions and rulings of the court are correctly stated, and the j ury found all the defendants guilty except ’William P. Hammond. I do not remember any testimony that materially, if any, that bore against said Hammond.

    Judgment was rendered according to the verdict, and the defendants sued out a writ of error. Such other facts as are material, are stated in the opinion of the court.

      J. H. Knowlton and A. Hyatt Smith, for plaintiffs in error,
    cited 15 Johns. 223; 16 id. 215; 14 id. 120'; 1 Wend. 119 ; 10 id. 389 ; 6 Carr. & P. 213; 4 Wash. C. C. 80 ; 1 Phil. Ev. 73.

      Edward V. Whiton, for defendant in error.
   Dunn, C. J.

Error is prosecuted in this case to reverse the decision of the district court of Rock county, refusing, in an action of trespass, after the plaintiff had closed his testimony: 1. “To submit the case to the jury, as against the defendants, A. S. Wood, Theodore Hammond, and William P. Hammond, with directions to acquit, there being no evidence against them, or either of them, that the other defendants might avail themselves of their testimony on the trial.” And 2. “To discharge the said defendants, Wood, Theodore Hammond, and William P. Hammond, or either of them, as there was no evidence against them, especially William P. Hammond, that the other defendants might use the testimony of the defendant or defendants thus discharged on the trial.”

It is a general rule in actions of tort, that when the plaintiff has closed his case, if no evidence has been produced against any particular defendant, he shall be discharged by a verdict in his favor, and then he may be a witness for the other defendants. 1 Phil. Ev. 61; 14 Johns. 122; 15 id. 223; 16 id. 217; 10 Wend. 392; 6 Carr. & Payne, 213.

It is also laid down in the books on this question, that if there is any, even the slightest evidence against a defendant, he cannot be discharged as a party and received as a witness. The want of evidence against a party, in order to entitle him to be a witness, should be so glaring and obvious, as to afford strong grounds of belief, that he was arbitrarily made a defendant to prevent his testimony. Phil. Ev. 61; Buller, 285; 14 Johns. 122.

It will be perceived in this case, that the district court was requested in the first place to direct the jury to acquit the three defendants named, upon the ground of there being no evidence against them, or either of them, which was refused by the court, and we cannot doubt the correctness of this decision, when we examine the record and find that the jury on the trial found two of those identical defendants guilty on the evidence. It would have been error in the court to have submitted to the jury, at that stage of the trial, whether one of three defendants was guilty or not guilty. It was the province of the court to decide the legal question, whether there was or not any evidence against the defendants named, and if there was no evidence against them, to direct the jury to acquit in form.

The defendants below, having elected to request the court to submit it to the jury as an entire proposition to acquit the three named defendants, upon the ground that there was no evidence against them, or either of them, the court did right in treating it as an entire proposition, and if there was any evidence against any one of them, to refuse the request. The jury found two of them guilty on the trial. As to the defendant William P. Hammond who was acquitted on the trial, this court cannot undertake to say that there was not any evidence against him, for the district court, in a note to the bill of exceptions sent up, says, “that the testimony returned is not all the testimony in the case, but from memory, the court would not undertake to say that there had been material evidence against the said defendant.”

Prom uncertainty as to what the evidence really was on the trial, and from the fact that the jury found two of the defendants embraced in the proposition to acquit, guilty, we must presume that the district court refused correctly, when the evidence was fresh in the memory of the judge. The former reason would apply if a distinct motion had been made to direct the jury to acquit the defendant Wm. P. Hammond; they both apply as the motion was made.

If it is insisted that the court may discharge a defendr ant in tort, against whom there is no evidence, without the formal verdict of a jury, we say that in the case at bar, if it was not error in the district court to refuse to direct the jury to acquit the three defendants named for. the reasons already alluded to, then a fortiori, it was not error to refuse to discharge the said defendants, for the same reasons.

We hold, however, that there is no settled rule which authorizes a court to discharge in such cases, without the formal verdict of a jury.

The judgment of the district court is affirmed with costs.


author: Irvin, J.

text:
    Phillips vs. Wilson.
    Garnishee. In a proceeding against a garnishee when he declares on oath that he is not indebted, etc., to the defendant in the execution, he is entitled to he discharged and to a judgment for his costs, hut is not entitled to a judgment for any damages.
    ERROR to the District Court for Jefferson County.
    The case is stated in the opinion of the court:

      J. B. Holmes, for plaintiff in error,
    contended that the judgment of the justice as to the $5.00 should have been reversed, and affirmed as to the costs, by the district court, according to the statute, which authorized the district court to render judgment according to the right of the case. Terr. Stat. 390, § 9.
    No appearance for'defendant in error.
   Irvin, J.

Upon examination of this case, these appear to be the facts: On the 27th day of January, 1844, the plaintiff in error was, upon the return of an execution against Washington Philo at the suit of the defendant in error, summoned to appear before the justice as garnishee. Upon the appearance of the garnishee, the justice is found to have made this entry and judgment: £ £ At 6 o’ clock the parties appeared, and interrogatories put by the court to the garnishee touching his liability to Washington Philo, and he stated, under oath, that he was not indebted to the said Washington Philo, and upon which the court rendered judgment in favor of the garnishee, Benjamin P. Phillips, in the sum of five dollars damages, and costs of suit seventy-four cents.”

It is admitted, as it must be, that the justice erred in giving the judgment of $5.00; but it is insisted, that the garnishee was entitled, upon discharge, to his costs. Upon the examination of the case it will be seen, that he gave no judgment of discharge and costs in favor of the garnishee, as he might have done, but gave a judgment entire for $5.00 and costs of suit. To reverse this judgment, the case was taken to the district court, where it was reversed with costs.

The court is unanimous in the opinion, that the judgment of the district court was correct, and therefore affirm it with costs.


author: Dunn, Ch. J.

text:
    Tait vs. Foster.
    1. Common counts — evidence — practice. At common law a promissory note is admissible in evidence to support counts for money lent and advanced, for money had and received, and upon an account stated. But under the statute of the Territory and rules of practice a notice must accompany a declaration in the common counts, stating the special matter relied on to support it.
    S. Same. In an action upon a promissory note the plaintiff may either declare specially on the note, or in the common counts, giving notice that he relies on the note to support them, and where the declaration contains the common counts only, and no such notice is given, a promissory note is not admissible as evidence in support of the declaration.
    3. Mistake on law—new trial. Ignorance, misapprehension, or an erroneous construction by counsel of the statute or rules of practice, is no ground for a new trial.
    EBBOB to the District Court for Rock County.

      Tait brought an action of assumpsit against Foster, and his declaration contained the common counts only, to which Foster pleaded non-assumpsit. There was no copy of a note or bill of particulars filed by the plaintiff. At the trial the plaintiff offered in evidence under the common counts contained in his declaration, a promissory note made by the defendant to the plaintiff for $355, dated July 17, 1837, payable January 1, 1838. The defendant objected to the reading of the note in evidence, and the court sustained the objection. A verdict was rendered for the defendant, and the plaintiff moved for a new trial on account of the rejection of the note as evidence and on the ground of surprise, and in support of the last ground relied upon an affidavit of his attorney, stating that he drew the declaration by the advice of his associate, and that he did not know of any practice of the court that forbade the. introduction of a promissory note in evidence under the common counts, and that the declaration was drawn under the common law practice of England, New York and Pennsylvania; and he asked leave to amend his declaration. The motion was overruled and judgment entered on the verdict.

      J. H. Knowlton and A. Hyatt Smith, for plaintiff in-error.
    At common law a plaintiff might give a promissory note in evidence under the common counts. 7 Cow. 316; 8 id. 77; 7 Wend. 311; 12 Johns. 90; 19 id. 268, and the statute of Wisconsin, 203, § 29, prohibits special pleading. The statute of Wisconsin, 203, §§ 30 and 31, only apply where it is desired that the clerk should assess the plaintiff’s damages.

      David Haggle, for defendant in error.
    It Was necessary under the statute and the rules of practice that the plaintiff should have declared specially on the note, or in the common counts, giving with his declaration a copy of the note, so as to apprise the defendant of the nature of his demand. He might take either course, but not having done so he could not give his note in evidence. Stat. of Wis. 203, §§ 27, 29; 12 Johns. 268; 3 Wend. 437; G-raham’s Pr. 511-518.
   Dunn, Ch. J.

This case is presented upon error to the decision of the district court of Rock county. The plaintiff here was plaintiff below, and brought his action of assumpsit against the defendant, and declared generally in the common counts, for goods, wares, etc., money lent and advanced, and for money had and received. Issue was joined on the plea of non-assumpsit, and on the trial the plaintiff offered in evidence a promissory note given by defendant to plaintiff, to support the counts for money lent and advanced, and for money had and received, which was rejected by the court. The principle does not admit of question, that a promissory note may be received as evidence to support a count for money lent and advanced, for money had and received, and the insimul compuiassent count. The practice however, under the statute of this Territory, and the rules of court will determine when it is proper thus to receive a note in support of these counts. As the law now stands, parties-may plead generally or specially at their option. If they plead generally, it is incumbent on the party thus pleading to give the opposite party notice of the special matter relied on to support the action or defense on the trial. This is a general rule recognized in practice under our rules of court and the statute.

In the case at bar the plaintiff chose to declare generally in the common counts in assumpsit. He might have inserted a special count on his note, in the same declaration, and this is conformable to correct and sound practice. Having elected to declare generally, he should have given defendant notice in some shape, that he intended to rely upon the note to support one or more of his common counts. This is reasonable and proper, nor does it violate any principle of law, thereby taking away any right of the plaintiff. Rules are adopted in all courts, to facilitate business, and prevent surprise of parties; the latter is absolutely necessary to an impartial administration of justice.

It is an inflexible rule of pleading, that the plaintiff should, in his declaration, or by accompanying notice, or bill of particulars, apprize the defendant specifically and intelligibly of the nature of the claim or charge against him, that he may be prepared to make a proper defense on the merits. And it is no answer to this rule to say that a defendant is presumed to have a full knowledge of each and every transaction, by which he may have rendered himself liable to suit. Such a presumption is not indulged in by the system of pleading.

In relation to the rule of court, which requires the filing of an account with the declaration, plea or notice of set-off, when it is intended to rely on one, under the common counts or in set-off, it is needless to assert a self evident proposition, as has been done in argument, “that a note is not an account.’ ’ Although a note is not an account, it may very properly be inserted as an item in an account or bill of particulars, and this should have been done in the case at bar, or something equivalent; the plaintiff having chosen not to frame a count on the note, he should have given the defendant notice in some other manner of the particular nature of the demand against him.

Under our practice, regulated by the rules of court, it is incumbent on the plaintiff to give the defendant notice of the particular nature of his demand, in the declaration or otherwise ; therefore it was not necessary that the defendant should have applied for a bill of particulars to enable him to take advantage of the plaintiff’s omission.

The district court having rejected the note for this omission of the plaintiff, it was no longer before the court, and to have permitted a question to be raised about the execution of the note, without objection, would have been entirely unnecessary and useless.

The motion for a new trial was properly overruled. Full knowledge of the existence of the rule referred to is admitted in argument; the construction put upon it produced the difficulty. It is the privilege of counsel and attorneys to put constructions upon law and the rules of practice, submitting always the soundness of such constructions to the test of judicial investigation and decision. If their constructions shall be found upon examination to be against the reason of the principles of law, or rules of court, and therefore rejected,' it is no reason for a new trial that attorneys were ignorant of what would be settled as the proper construction.

We are of opinion that the judgment of the district court, on all the points raised, be and the same is hereby affirmed, with costs.


author: Miller, J.

text:
    Iowa County vs. Green County.
    Organization oe counties — mandamus. The county of Green was created and its boundaries fixed by act of December 8,1836, and the seat of justice was established at New Mexico, but it remained attached to the county of Iowa for judicial and municipal purposes, until January 15,1838, when by another act, the county of' Green was fully organized; but in the mean time a debt had been created in part for the benefit of the inhabitants of Green county, and the latter act provided as a condition of such separate organization of Green county, that it should pay its equal proportion of such debt, according to the number of its inhabitants, to be ascertained and audited and paid by the treasurer of Green county to the sheriff of Iowa county. Held, (1) that it was proper and competent for the legislative assembly to provide that such payment shouldbemadeasa condition to the entire organization of Green county.
    (2.) That the claim of Iowa county against Green county in that behalf, could not be recovered in an action at law, until the amount thereof had been ascertained and audited by the county treasurer of Green county, in the manner prescribed by the act.
    (3.) That if the treasurer of Green county refused to do the duty imposed on him by the act, the remedy of Iowa county was by mandamus.
    ERROR to tlie District Court for Jefferson County.
    Tliis was an action of assumpsit, brought by Iowa county against Green county, and the declaration averred the corporate existence of both counties, and that on the 15th of January, 1838, Gh'een county was attached to Iowa county for certain purposes, among which was the purpose of paying the debts due by Iowa county; that the amount of debts of Iowa county previous to that day and up to December 1, 1837, was $7,979.79, which was due and unpaid January 15, 1838; that on that day an act was passed whereby from that day Green county to all intents and purposes was to be and remain an organized county, with full power to do and transact all county business, and the inhabitants of the county of Green were required to pay to the county of Iowa, according to the number of inhabitants, their equal proportion of the debts remaining unpaid by the county of Iowa ; that by means of the premises Green county became liable to pay to Iowa county its equal proportion of said debts, according to its number of inhabitants, being the sum of $603, and in consideration thereof undertook and promised to pay the same on request. It did not appear that the amount of such claim had been audited and ascertained by the county treasurer of Grreen county, as provided by the act of January 15, 1838.
    The defendant demurred to the declaration, and judgment was given on such demurrer for the defendant.

      Wm. JR. Smith, district attorney, and F. J. Dunn, for, plaintiff in error.

      II. IT. Wells and Edward V. Whiton, for defendant in error.
   Miller, J.

On examination of this case, it appears that the legislative assembly, by an act to divide the county of Iowa, approved December 8, 1836, directed that townships one, two, three and four, north of ranges six, seven, eight and nine, east of the fourth principal meridian, should be and the same were thereby constituted a separate county, to be called Oreen, and the seat of justice is hereby established at New Mexico, in said county. By an act to organize the county of Oreen, approved January 15,1838, it is provided, “ that the inhabitants of the county of Oreen are hereby required to pay to the county of Iowa, according to the number of inhabitants, their equal proportion of the debts remaining unpaid by the county of Iowa;” and directs, “that the county treasurer of the county of Oreen shall audit and pay over to the sheriff of the county of Iowa such sums as may become due to the county of Iowa, under the pro visions of this act, out of the first money that may come into the treasury of the said county of Oreen ; and the said sheriff is hereby required to pay the same into the treasury of the county of Iowa, for the use of said county.”

The declaration in this case is in assumpsit, for the proportion of the then debt of the county of Iowa, without averring that the sum had been first audited as directed in the aforesaid act. To this declaration the defendant demurred, and the court sustained the demurrer. This judgment of the district court is the only error assigned.

The first mentioned act merely created the county of Oreen, and left the inhabitants thereof to continue attached to Iowa county for all judicial or municipal purposes. The second act organized the county, and permitted the inhabitants thereof to have their own courts and municipal regulations; but a debt having been created* partly for the beneft of the inhabitants of Oreen county, the legislature properly required, as a condition of such separate organization, that they should pay their proportion of such debt; and prescribed, at the same time, the manner in which the amount thereof should be ascertained. It is necessary to a recovery by the county of Iowa, that the amount due from the county of Oreen should be ascertained in the manner directed by the act. If the treasurer of the county of Oreen refuses to discharge his duty under the act, he can be proceeded against by a mandamus.

The judgment of the district court is affirmed, with costs.


text:
    Slocum vs. Damon and another.
    1. Arbitration and award. A submission to arbitration is to be expounded, not according to the strict technical meaning of its words, but according to their popular signification.
    3. Same. Awards are to be construed liberally, and no intendment will be indulged in to overturn an award, but every intendment will be allowed to support it.
    8. Same. It is essential to an award that it should make a final disposition of the matters submitted, that they may not become the subject of future litigation between the parties.
    4. Same. A submission of “differences which had arisen relative to an alleged injury committed by A. to a horse the property of B. and C.” to an arbitratorio determine “whether the said A. was liable for the damages occasioned to the horse under the circumstances, with costs,” is a submission not only of the question of legal liability, but also of its extent, and authorized the arbitrator to determine and award the amount of the damages sustained.
    5. Same. An award made without notice to the parties is a nullity, but it is not necessary that the fact that notice was given should appear on the face of an award, and it will be taken prima facie to have been regularly made, when there is nothing on its face to impeach it.
    6. Sam®. Where a submission provided that six days’ notice should be given to the parties, and the award showed that it was made upon notice to the parties, and that they appeared and proceeded with the trial before the arbitrator, the presumption is that notice was given according to the terms of the submission.
    EEEOE to the District Court for Racine County.
    The case is stated in the opinion of the court.

      F. 8. Lovell, for plaintiff in error.
    1. The arbitrator exceeded the authority conferred by the submission. The submission was merely of the question of Slocum’s liability, and the arbitrator had no authority to determine the amount of damages. Gear v. Bracken, ante; Bacon v. Wilber, 1 Cow. 117; McBride v. Hag cm, 1 Wend. 326.
    2. The plaintiff should have proved that six days’ notice was given of the hearing before the arbitrator. This was one of the requirements of the submission, and without a compliance with it the arbitrator had no right to proceed. 6 Cow. 103.

      J. B. Jilsun, for defendant in error.
    1. Awards are to be liberally construed to effectuate the intention of the parties, and the rule that an award of any thing beyond the submission is void, is not so strictly applied as to extend to every thing beyond it; if the award be of anything depending on the principal it is good. Kyd on Awards, 146, 170; McEinstry v. Solomons, 13 Johns. 27; Munro v. Allaire, 2 Caines, 320; Karthaus v. Ferrer, 1 Pet. 228 ; White v. Berry, 12 Wend. 377 ; 5 id. 270 ; 2 Johns. 57.
    2. The award shows that it was made upon notice to the parties, and that both parties appeared and proceeded to a hearing. By proceeding to a hearing without objection as to notice, the. plaintiff waived the point, and cannot insist upon it now.
   Miller, J.

It appears that the plaintiff in error had executed to the defendants in error a bond, in the nature of an arbitration bond, in which is recited that, “whereas certain differences have arisen between the said Slocum and the said Damon and Southworth, relative to an alleged injury committed by the said Slocum to a gray horse, the property of the said Southworth and Damon; and whereas, the said Slocum and the said Damon and Southworth have this day agreed to submit the matter in dispute to Joseph V. Quarles, sole arbitrator, indifferently chosen by the parties, to decide between the parties, whether the said Slocum is liable for the damages occasioned to the horse in question, under the circumstances, with costs to abide the event; the hearing to be held on six days’ notice from either party.” The arbitrator reported within the time prescribed, whose report is: “ That the matter of difference was, on notice • to both parties, brought on before me on the 6th day of December, 1843, and after having heard, examined and considered the allegations, witnesses and evidences of both parties, do award that the said Qyrus Damon and Ezra O. South-worth do recover of the said William B. Slocu/m the sum of $70 and costs of reference.

Suit was brought for the recovery of the amount of this award, and upon the trial of the same in the district court, objections were raised, that the arbitrator exceeded his authority, and that he had not given the notice of the time and place of the hearing, according to the terms of the submission; which said objections were overruled, and a verdict and judgment were rendered for the plaintiffs. To reverse which, this writ of error was sued out. These objections are assigned for error.

The recital in the bond, that “ certain differences have arisen relative to an alleged injury, committed by Slocum to the horse,” tends to explain the submission. Here the injury to the horse is acknowledged, and liability is presumed legally to .follow. The arbitrator is to decide whether Slocum is liable for the damages occasioned to the horse, under the circumstances, with costs. It can scarcely be presumed that the parties did not intend to submit the amount of the liability with the question of liability. It is not presumable that the parties would incur costs and expenses in merely having a legal question of liability tried, and then have another trial for the amount of such liability. Such a construction is to be given to the submission, as to give it full effect, and to meet the intention of the parties, which no doubt was, to have their difficulties settled without further litigation and expense.

Awards are to be construed liberally. Peters v. Pierce, 8 Mass. 398. It is a settled rule in the construction of awards, that no intendment shall be indulged in to overturn an award, but every intendment shall be allowed to support it. Carthaus v. Ferrer, 1 Pet. 227; Cowen and Hill’s Notes, 1027, 1028; Kyd on Awards, 27, 146; Lyman v. Arms, 5 Pick. 213. A submission is to be expounded, not according to the strict technical meaning of the words, but according to their signification in common parlance. Munro v. Allaire, 2 Caines, 320. And a submission touching divers other matters, as well as those particularly mentioned, is equivalent to a general submission of all questions between the parties, and under it general releases may be awarded.

The amount found and reported, is virtually a finding of defendant’s liability. An award that plaintiff recover a certain sum is sufficient, when but one cause of action is set forth. Forseth v. Shaw, 10 Mass. 253. An award that defendant recover the costs of the action is a sufficient determination of claims submitted by the plaintiff. Buckland v. Conway, 16 Mass. 396. An award against the plaintiff’s demand, with costs for the defendant, but not referring to an account in offset, filed by the defendant, is sufficient, although the action and all demands were submitted. Hodges v. Hodges, 9 Mass. 320. Also, upon the construction of awards, see Innes v. Miller, 1 Dallas, 188; Kunckle v. Kunckle, id. 365.

It is essential that the award should make a final disposition of the matters submitted, so that they may not become the subject of future litigation between the parties (Waite v. Barry, 12 Wend. 375), where it is decided that arbitrators, to whom a subject in controversy is submitted, to determine the rights of the parties, are authorized to direct the payment of such sum of money, growing out of such controversy, as they find due from one to the other. That case is similar to the case under consideration. The parties agreed to refer to arbitrators “the subject of a difference between them respecting the one-eighth part of a lottery ticket, and the prize thereunto which was decided by the court to embrace the question of payment, as well as the sale of the ticket and the liability ; and that the report of a certain sum was sufficient. The court also remark, that it is not to be presumed that the arbitrators decided upon matters not in dispute, or in relation to which evidence had not been given.

The rule, that an award of any thing beyond the submission is void, is not so strictly interpreted as to extend to every thing literally beyond it; if the award be of any thing depending upon the principal it is good. Kyd on Awards, 146, 147. Where the submission was, “of all suits and controversies between the parties concerning tythes of corn and hay in a certain parish,” the arbitrator awarded forty pounds, to be paid by defendant to plaintiff, before a certain day; in consideration of which the latter should permit all suits and controversies between the parties to cease, and that they should be no further prosecuted ; the award was sustained as not too general. Kyd on Awards, 121. If two partners refer all matters in dispute between them, the arbitrators may dissolve the partnership. Kyd, 149; Green v. Herring, 1 Blackf. 475. So between masters and apprentices, they may award the indentures of apprenticeship to be delivered up. 1 Bacon’s Abr. 214. A submission of all matters between plaintiff and another, and an award made of things that the party hath in right of his wife, is good. 1 Bacon’s Abr. 214. In Noble v. Peebles, 18 Serg. & R. 319, by the submission, the parties agreed to have all business and estate in dispute between them referred to five persons to determine between them,” which was considered by the court to include prosecutions of assault and battery.

The rules established, respecting the construction of awards, are more liberal than formerly ; and as arbitrators are judges of the parties own choosing, for the furtherance of justice, and quieting of controversies, the courts have of late construed their awards with great latitude. Two of the essentials of an award are, that it must be certain and final. Now in this case, differences arose between the parties, relative to an acknowledged injury committed by Slocum to a horse, the property of plaintiffs. The parties agreed to submit to the arbitrator to decide whether said Slocum was liable for the damages occasioned to the horse, with costs. The legal liability was not alone the question submitted, but the extent of the liability under all the circumstances, was the principal question, which could not be found, finally and fully, without reporting the amount to be paid. The arbitrator was authorized to report with costs, which affords an additional reason for believing that the report is substantially as the parties intended it should be. We are satisfied that they intended the award to be complete and final.

There is no doubt, but an award made without giving notice to the parties, so that they can be heard before the arbitrator, is a nullity. Peters v. Newkirk, 6 Cow. 103. But it is by no means necessary that it should appear on the face of the award that due notice was given. In this case the cause was heard by the arbitrator, in the presence of the parties, and within the time limited by the submission. The arbitrator reports, that on notice to both parties the cause was tried, and that both parties attended and took part in the trial. The presumption is, that the notice to the parties was given according to the submission. The parties having attended on notice, and submitted their proof and allegations to the arbitrator, there is no necessity for setting forth in the report the nature and time of the notice. Prima facie, the award is to be taken to have been regularly made, when there is nothing on its face to impeach it. This point raised respecting the notice, is settled in the case of Lutz v. Linthicum, 8 Pet. 165. The award on this subject is sufficient.

The judgment of the district court must be affirmed, with costs.


text:
    Mc Goon vs. Irvin.
    1. Evidence—message and answer. Wliere a party sends a message to another by a third, in reference to any matter or transaction between them, and the party receiving it gives it in evidence, he may also show in support of his case, and as part of the res gesta, and as an inseparable incident of the message, what answer he gave to it.
    2. Evidence. In an action against a father to recover for necessaries, etc., furnished to his minor children, it is competent to prove the circumstances and ability of the father, in order to determine whether the articles furnished, maintenance, etc., corresponded with his position in life and his duty to his children.
    3. Same. Mere neighborhood notoriety or rumor is not, as a general rule, admissible in evidence to prove any fact; such evidence may be received to prove marriage, and from necessity in a few excepted cases.
    4 Liability oe parents to support their children. Parents are bound by law to maintain and support their minor children, and where a parent permits a stranger to maintain, support and instruct his minor children, and in no way objects to it, but rather assents to it, the law will imply a promise on his part to pay for the same.
    5. Same. McG. procured a legislative divorce from his wife, and left the minor children of the marriage in the family of a third person to be supported, and the mother afterward obtained the custody of the children without his knowledge or consent and refused to give them up on demand made on behalf of their father. Afterward she intermarried with I., and the children were supported and educated by him. In an action by I. against McG., to recover for tbeir support, etc., held, 1. That McG. bad a legal right to the custody of the children, but as he had not attempted to assert it as against I., the law would presume that McG. assented to their being in the control and custody of I.’s wife, their mother, and that I. could recover though the act of the mother in obtaining the custody of the children before her second marriage might have been wrongful.
    ERROR to the District Court for Dane County.

      Irvin brought, an action of assumpsit against McG-oon to recover for supporting, educating and instructing the infant children of the defendant, and for necessaries, etc., furnished the said infants. The defendant pleaded nonassumpsit. At the trial, the plaintiff proved by one Deering, that at the request of the defendant, he went to the plaintiff to inform him where and upon what terms the children might be educated. Plaintiff’s counsel asked witness what reply was made by the plaintiff to such message. The defendant objected to the question, but the court allowed it to be answered. The plaintiff also asked this witness what were the circumstances and ability of the defendant to pay for supporting and educating his children. The defendant objected to the question, but the court allowed it to be answered.
    The defendant in his defense, asked a witness called by him, “Was it, or was it not, a matter of notoriety in the neighborhood, where the plaintiff lived before the time of his marriage with Mrs. McGoon, that the defendant had made and was making efforts to recover possession of his children in the custody of Mrs. McGoon, thenowwife of theplaintiff, and that the children were by her kept from him V ’ The question was objected to by the plaintiff, and the court sustained the objection. It appeared in evidence on the part of the defendant, that previous to the plaintiff’s marriage with Mrs. McGoon, the defendant had been divorced from her by act of the legislature of Illinois, January 15, 1836 ; that the defendant had placed the children with one John White, in his family, to be boarded, clothed and educated at the defendant’s expense; that soon after, and before her marriage with the plaintiff, Mrs. McGoon, without the knowledge or consent of White, took the children away;' that soon afterward White demanded the children of her and she refused to give them up, and again, before her marriage with the plaintiff, White went at the request of the defendant, and made another demand of Mrs. McGoon for the children, and that she kept them until her marriage with the plaintiff, after which they lived in his family. The court at the request of the plaintiff, instructed the jury: 1. “ That the detention of the children by Mrs. McGoon previous to her marriage with the plaintiff, whether such detention was tortious or not, can in no way affect the plaintiff in this form of action. 2. “ That if the jury believe from the testimony that neither the defendant, nor any other person for him ever made a demand of the children from the plaintiff, or warned the plaintiff against their maintenance, and that the defendant knew that his children were being maintained by the plaintiff, the defendant is liable for such maintenance.”
    The defendant moved the court to instruct the jury
    “That if the testimony proves that the wife of the plaintiff had the children of the defendant at the time of her marriage with the plaintiff, and that her custody and possession of the children was without the consent and against the will of the defendant, and that the plaintiff then took the children with the mother into his family without the consent or request of the defendant, and never since that time notified the defendant to take them away or become responsible for their maintenance, that the defendant is not liable to the plaintiff as claimed and set forth in the plaintiff’s declaration.”
    The court refused to so instruct the jury. Verdict for the plaintiff for $510.25.
    The defendant moved for a new trial for error in the instructions given and for refusing the instruction asked. The motion was denied, and the plaintiff had judgment and these several rulings of the court were assigned for error.

      A. Hyatt Smith, for plaintiff in error.
    1. It was not competent for the plaintiff to give in evidence to support his case, his reply to the message sent to Mm by the defendant through Leering. La Large v. Eneeland, 7 Cow. 459 ; Whitney v. Bigelow, 4 Pick. 110 ; Carter v. Gregory, 8 id. 165 ; Roseboom v. Billing - ton, 17 Johns. 182 ; 1 Dallas, 118; Cowen and Hill’s Notes to Phil. Ev. 154.
    2. The first instruction to the jury was erroneous. The defendant was entitled to the custody of his cMldren. 4 Ad. & E. 624; 19 Wend. 16. The custody of the wife being against the will of the defendant was illegal, and she could transmit no other than an illegal possession to the plaintiff after her second marriage, and the law will not imply a promise in such a case. Bates v. Conklin, 10 Wend. 390; Mooers v. Wait, 3 id. 104; 5 B. & Aid. 826 ; Selwyn’s N. P. 58 ; 5 Johns. 272. The services of the plaintiff were voluntary, and however beneficial, the law will not imply a promise. Bartholomew ®. Jackson, 20 Johns. 28 ; Munford v. Brown, 6 Cow. 475; 10 Johns. 249 ; 12 Pick. 223.
    3. The court erred in giving the second instruction to the jury, and in refusing the one asked by the defendant. The defendant was not bound to demand the children or give notice of the facts to the plaintiff. The fact that they were absent from the domicile of the father was sufficient to put him on inquiry, and affected him with knowledge of the cause ; and if absent, without sufficient legal cause, they carried with them no credit. Blackburn r. Mackey, 1 Carr. & P. 1; Rolfe v. Abbott, 6 id. 286 ; Clements v. Williams, 8 id. 58 ; 2 id. 507; 3 id. 15; 2 Starkie, 501; 10 Mass. 28 ; 4 Ad. & E. 899.

      F. J. Dunn, for defendant in error,
    cited Fenner v. Lewis, 10 Johns. 41; Hurd v. Bendridge, 2 Hill, 502 ; Murray v. BetJmne, 1 Wend. 191; 8 Pick. 165 ; 13 Johns. 480; 18 Wend. 637; 25 id. 65; 19 id. 16; 2 Mass. 415; 4 id. 97.
   Dunn, C. J.

This was an action of trespass on the case on promises, brought by Irvin, plaintiff below, against McQ-oon, defendant, in the district court of Iowa county, and tried on change of v.enue, in the district court of Dane county.

The plaintiff in error, McQoon, assigns the following errors to the decisions and rulings of the district court of Dane county, on the trial of the cause, viz.:

1. In allowing the witness of plaintiff Irvin to answer the following question: £ £ What reply was made by said plaintiff to said witness in answer to such message?”

2. In allowing said witness to answer the following question: ££ What were the circumstances and ability of defendant to pay for supporting and educating his children ?”

3. In refusing to permit a witness on the part of defendant McQoon to answer the following question : ££ Was it or was it not a matter of notoriety in the neighborhood where the plaintiff lived, before the time of Ms marriage with Mrs. McG-oon, that defendant had made and was making efforts to recover possession of his children, in the custody of Mrs. McGfoon, the now wife of plaintiff, and that the children were kept by her from Mm ?”

4. In instructing the jury : “That the detention of the children by the wife of the defendant previous to her marriage with the plaintiff, whether such detention was tortious or not, can in no way affect the plaintiff in this form of action.”

5. In instructing the jury: “ That if they believe from the testimony that neither the defendant, nor any other person for him, ever made a demand of the children from the plaintiff, or warned the plaintiff against their maintenance, and that the defendant knew that Ms children were being maintained by the plaintiff, the defendant is liable for such maintenance.”

6. In refusing to instruct the jury: “That if the testimony proves that the wife of the plaintiff had the children of the defendant at the time of her marriage with the plaintiff, and that her custody of the children was without the consent of the defendant, and against his will, and that the plaintiff then took the children with the mother into his family, without the consent or request of the defendant, and never since that time has notified the defendant to take them away or become responsible for their maintenance, that the defendant is not liable.”

On the first error assigned, it appears from the testimony returned, that the defendant sent a message' to the plaintiff, informing him “where and upon what terms the children might be educated at the defendant’s expense.” The reply to the message was an inseparable part of the res gesta, and was properly admitted. It does not infringe the rule, “that the declarations of a party shall not be used by him to support his action or defense.”. The defendant caused the message and must abide its inseparable and necessary incidents.

The circumstances and ability of the defendant were a proper inquiry. The law will presume that a man of great means will have his children more tenderly nurtured and carefully educated than one of limited means, and raises a corresponding liability. Van Valkeriburgh v. Watson, 13 Johns. 480.

The court properly refused the defendant’s question about the neighborhood notoriety of his efforts to regain possession of his children from their mother, before her intermarriage with the plaintiff. This is a fact very susceptible of direct proof, if it existed, and neighborhood rumor or notoriety, the most vague and uncertain of all the tests of truth, should not be received. In a few excepted instances, from necessity, such evidence is received. The relation of husband and wife may, in some cases, be established by proof that they were accepted and received and lived together as husband and wife in the community where they had resided for a length of time. And again, in any view of the case this notoriety should be brought home to the knowledge of the plaintiff,.by the fact that he lived in the neighborhood, or frequently visited it, or some other fact. Nothing of the kind appears in the evidence returned.

That the tortious acts of the plaintiff’s wife before marriage with him do not prejudice his right of recovery in this form of action, Is too plain a legal proposition to require elucidation.

The instruction objected to in the fifth assignment of error was in our opinion properly given. By every principle of law upon the subject, recognized and strengthened by our statute, parents are under legal obligation to maintain and support their children, who are of tender years and helpless.

And when a parent permits a stranger to maintain, support and instruct such children, inno way objecting to the act, but rather assenting and advising therein, the law will presume that he knows his obligations, accepts the services and assumes to pay. 16 Johns. 285; 13 id. 480; 1 Esp. 17; 1 Black. Com. 360; 2 Kent’s Com. 190; 4 East, 82; 4 Wend. 403; Rev. St. 132.

The instruction refused, as assigned in the sixth error, was properly refused, for the reasons already adverted to, and for the further reason that the testimony returned in the case, with the bill of exceptions, does not raise the point on which the instruction is asked, so far as the real plaintiff in the action is concerned.

The plaintiff, upon his marriage, found the children with the mother, who by nature, in view of their tender years and helplessness, was a proper person to have charge of them. There was nothing in this to induce the plaintiff to suspect that the children were with the mother against the consent of the father, but much to satisfy him of the contrary; that they were with the mother by the consent of the father, if he were possessed of proper natural feelings. And there was no duty or obligation on the plaintiff to notify the defendant to take the children away, or leave them to suffer until he could see the defendant and make an express contract about their support and maintenance. Such a course would have merited the reprobation of every humane and upright man. The defendant had the legal right to the possession, and could have enforced it 'at any time. He should have first moved in the matter, and on failure to do so, the law would presume that possession elsewhere was with his approbation and consent. Rawlins v. Van Dyke, 3 Esp. Cases, 212; Staunton v. Wilson, 3 Day, 37; 1 Black Com. (top page) 370, note 3.

We are of opinion that the judgment -of the district court be affirmed, with costs, and seven per cent damages on the amount recovered by the plaintiff below. Ordered accordingly.


author: Mileer, J.

text:
    Pyne vs. Van Bergen.
    Practice—default—motion to nonsuit. Where in an action of trespass on the case the defendant suffers a default, he cannot raise the objection .by a motion for a nonsuit, that the action should have been trespass and non case, and thus defeat the action, as the default of the defendant admitted a cause of action that the plaintiff was entitled to some damages, and the proper method of raising the objection to affect the amount of damages is by .objection to the testimony offered, or by a motion to set aside the inquisition.
    ERROR to the District Court for Dane County
    The case is stated in the opinion of the court.

      A. L. Collins and T. W. Sutherland, for plaintiff in error.

      John Catlin, for defendant in error.
   Mileer, J.

The defendant in error instituted this suit against the plaintiff in error, and declared in case for setting fire to stubble on defendant’s own land, which fire communicated to the barn of plaintiff and consumed it. For want of a plea, defendant’s default was entered, anda jury was called to assess the damages. After the testimony for the plaintiff was received, the defendant raised the objection to the form of action, that it should have been in trespass and not in case, and moved the court for a nonsuit, which motion was overruled, and this is the only assignment of error.

It is the settled law of this court, that after the jury is sworn and any testimony given, the court cannot order a peremptory nonsuit, against the consent of the plaintiff. But even without this rule, the district court could not comply with the request of the defendant, for this was merely an assessment of damages after a default, and not a trial upon an issue. By the default the action was taken as confessed, and the plaintiff was entitled to some damages, however inconsiderable. If there was improper or irrelevant testimony offered, which had a tendency to enhance the damages, the defendant should have objected to it, and taken the proper advantage of any such alleged error, by a bill of exceptions, or a motion to set aside the iriquisition.

The judgment of the district court must be affirmed.


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    Hempstead vs. Drummond.
    1. Entry of judgments in vacation by confession. Tile statute of tlie Territory (Laws 1843,105) authorizing the entry of judgments by confession in the district court, in vacation, is a valid and constitutional enactment, and a judgment entered pursuant to the act is valid and binding as though it were rendered in term time, and execution may issue thereon with like effect.
    3, Same. The act of 1843, authorizing the entry of judgments by confession in the district court, in vacation, does not confer judicial power on tbe clerk; under tlie act Ms duties are ministerial and a judgment tlius entered derives its binding force by consent of the defendant expressed in tbe warrant of attorney. Wells v. Morton, 10 Wis. 468.
    AGREED CASE from the District Court of Iowa County.
    The facts are fully stated in the opinion of the court.

      O. 0. Washburn, for plaintiff.

      F. J. Dunn, for judgment creditor.
   Miller, J.

This case is presented to this court for its consideration, by consent, upon a statement of facts agreed upon and returned with the record, and it is disposed of as if brought up by writ of error.

Robert A. Drummond being indebted to William Hempstead, upon a promissory note, on the 6th day of March, 1844, made and executed a warrant of attorney under seal, constituting and appointing C. C. Washburn his attorney, to appear in the district court of Iowa County, in term time, or in vacation, and without process or pleading of any kind ; and confess judgment for said Drummond and in Ms name in favor of said William Hemp-stead, for the sum of money due upon said promissory note, attached to said warrant of attorney. On the 4th day of April, 1844, the said attorney appeared before the clerk of the said district court, in vacation, and confessed a judgment in favor of said Hempstead for the sum of $794, that being the amount appearing to be due upon said promissory note. And afterward, on the 28th day of May, same year, an execution was issued upon said judgment and placed in the hands of the officer, which said execution was levied upon property of said Drummond, which was by virtue thereof sold at sheriff’s sale, and purchased in by said Hempstead, and due return thereof made.

At the September term of the district court of Iowa county, in the year 1844, a subsequent judgment creditor of said Drummond, moved the court to quash the execution issued at the suit of said Hempstead against said Drummond, and to set aside the sale made thereon; for the reason that there was no legal and valid judgment in said case on which said execution could be legally issued; which said motion was sustained by the court. By consent, the question is submitted to the consideration of this court, whether the said amicable judgment, entered in vacation is valid, and whether the execution could be legally issued thereon.

The act on page 105 of the laws of Wisconsin Territory, passed at the session commencing oh the 3d day of December, 1843, is adjudged to be in force in this Territory. The second section of said act provides, “That judgments may be entered in the district court in vacation, or in term, upon a plea' of confession, signed by an attorney of such court, although there be no suit then pending between the parties, upon filing with the clerk the authority for confessing such judgment, a declaration, plea of confession, and a copy of the bond, contract, or other evidence of the demand for which judgment is confessed ; provided, that the authority for confessing such judgment shall be in some proper instrument distinct from that containing the bond, contract or other evidence of demand. ” No part of the j udicial p ower of the Territory is vested in the clerk of the district court. He cannot call the parties before him and adjudicate or pass upon their rights.

The ministerial duties, pertaining to the courts, are alone conferred upon him. If this act had authorized any judicial duty or power to be performed by the clerk respecting judgments entered in vacation, there is no doubt that this act would be void, so far as it should confer this power. This duty or power seems to have been conferred upon the clerk for the use and convenience of suitors ; of both debtors and creditors. There seems to be no more impropriety in allowing parties amicably to settle and adjust their accounts, and the debtor to secure his creditor by an amicable judgment confessed and entered in the office of the clerk of the district court, than to execute and deliver a mortgage, and have it entered of record in the office of the register of deeds. By the designation of the district court, nothing more is meant than the forum of the judiciary. There is no more an adjudication necessary in entering and recording an amicable judgment than in executing and recording a mortgage. By this act the legislature merely authorized the clerk to enter such judgments as may be amicably confessed by the parties, in the manner therein prescribed. The record can only be made by the clerk, on the authority of the defendant. It is done with his consent alone, given for the security of his creditor. Instead of condemning such proceeding, we should rather favor it. As the legislature has authorized parties, in this manner, amicably to conclude their difficulties, it will not do for the courts to refuse the use of their dockets, and the agency of their officers, for such a purpose. The legislature have a right to declare what shall constitute a legal lien.

It is contended that fraud and imposition might be practiced in such proceedings before a clerk. Frauds can just as readily be practiced between the parties in court, by entering an amicable judgment. If it be admitted that a man ought not to confess a judgment in vacation, because fraud might be practiced, it might be successfully contended, that for the same reason, he should not give a bond and mortgage, except in open court. It is well settled, that any judgment, whether entered in term time in open court, or in vacation, can be opened for fraud or imposition.

Such a proceeding as this has been authorized in, probably, every State in the Union, and is sustained by the courts without the least doubt of its propriety. Many titles are predicated upon such judgments as this, in the different States, and are considered as valid, as upon judgments entered in open court. Nothing is more common than judgments entered in vacation in the States, in pursuance of laws similar to the law of this Territory. And as the judgment is authorized, by withholding the writ of execution the object of the law would be defeated. If a man is willing to confess a judgment in vacation, and that his property may be exposed to sale without delay for the satisfaction of his debt, the court should not interpose any obstacle.

In this case, there is no allegation of fraud or imposition. No objection is made to the judgment of Hempstead but that it was entered in vacation, by and with the consent and authority of the defendant.

It is the opinion of this court, that the order of the district court, quashing the execution and setting the sale aside, was erroneous. It is therefore ordered and adjudged by the court now here, that the said order of the court, quashing the execution and setting aside the sale in this case, be and the same is reversed, and that it be so certified to the said district court.

Dunn, C. J., dissenting.


text:
    Moore vs. Coburn et al.

    1. Injury to mill by flowing water —mill dam law. An injury to a mill lawfully existing, caused by tbe subsequent erection of a mill or mill dam, above or below on tbe same stream, is not provided for, and is not witbin tbe act of 1840 known as tbe “ mill dam act,” but tbe appropriate remedy for sucb injury is by an action at common law. New ton v. Allis, 12 Wis. 878.
    ERROR to the District Court for Dane County.
    The case is fully stated in the opinion of the court. David Hoggle, for plaintiff in error, contended that the complaint was good and relied upon 22 Pick. 312 as being a case under a statute similar to the one in question.

      Edward V. Whiton, for defendant in error,
    contended that the statute in question was not applicable to the case stated, and that the remedy of the plaintiff was by a common law action.
   Dunn, C. J.

Tyler H. Moore was plaintiff below, and filed his complaint against defendants, under the provisions of a statute of this Territory, passed on 13th January, 1840, entitled “An act in relation to mills and mill dams,” complaining of injuries done to Ms mill previously erected, by the erection .of a mill dam by defendants afterward, on the same stream above the mill of the plaintiff. The specific injuries complained of are, “that by reason of the erection of the dam by defendants, the water of the stream was diverted and thrown into various and unusual channels, thereby diminishing the quantity of water, by increased evaporation, and otherwise, to the great injury of the plaintiff’s mill,” etc.

A demurrer was filed to this complaint, by defendants, and sustained by the district court. The plaintiff in error insists that the decision of the district court sustaining the demurrer is erroneous. The act referred to provides, in the first section, that “any person may erect and maintain a water mill, and a dam to raise water for working it, upon and across any stream that is not navigable, upon the terms and conditions,- and subject to the regulations hereinafter expressed.”

The second section provides, that “no such dam shall be erected to the injury of any mill lawfully existing, either above or below it, on the same stream, nor to the injury of any mill site on the same stream on which a mill or mill dam shall have been lawfully erected and used, or is in the progress of erection; unless the right to maintain a mill, on such last mentioned site shall have been lost or defeated, by abandonment or otherwise ; nor shall any mill or dam be placed on the land of any person, without such grant, conveyance or authority from the owner, as would be necessary by the common law, if no provisions relating to mills, had been made by statute.”

The twenty-eighth section provides, that “no action shall be sustained, at common law, for the recovery of damages, for the erecting, maintaining or using any mill or mill dam, except as is provided in this act.” Mills and mill dams may only be erected under the restrictions contained in the second section referred to, and as no one is permitted to erect a mill or mill dam on any stream, to the injury of a mill or mill dam existing above or below, on the same stream, such injuries are not, and were not intended tobe, provided for in the act cited, for which complaint might be made, as is done in the case at bar, for the plain reason that the acts from which the injury would result were absolutely inhibited by law. And the legislature would not presume a violation of the law, and provide a remedy by complaint. The injuries which maybe remedied by complaint under'the act are accidental injuries, which may result from the lawful erection of a mill or mill dam, consistent with the restrictions contained in the said second section.

The obvious construction of the act on this point, seems to be, that no injury to a mill “lawfully existing,” caused by the after erection of a mill or mill dam, above or below, on the same stream, is intended to be provided for in the act. The appropriate remedy for such injury is a common law action.

This construction is sustained in Baird v. Wells, 10 Pick. 312, wherein the Massachusetts mill aqts, precisely similar to our own, are considered. The plaintiff in that case pursued a common law remedy by action on the case. He complained of injury to his mill and meadow, by the defendants erecting a dam across Farmington river, below, and thereby flowing back the water upon his mill and meadow. It appeared on the trial that the defendants were the first builders, and that the plaintiff erected his mill after. It was determined that the plaintiff’s remedy, if any, was under the mill acts. The supreme court said in that case : “The question is, whether the present case is brought within the prohibitory clause of the statute. And it is the opinion of the court, that it is not.” The prohibitory clause is the same as the second section of our act. If it had been within the clause, as is the case at bar, clearly, it was the opinion of the court, that the action was well brought.

We are of opinion, that the plaintiff s'remedy is at common law, and not by complaint under the statute ; we therefore affirm the judgment of the district court with costs.


text:
    Fitzpatrick vs. Warren.
    BePLEVXST—SPECIAL PROPERTY — vereict. Under the statute wkicll provides that in case the jury in the action of replevin, find for the defendants, the value of the property with adequate damages shall be assessed by the jury, and judgment be rendered in his favor for the value and damages so found. Held: 1. That it was error to award a writ for a return of the property in such case, instead of rendering the judgment prescribed by the statute. 2. That where the defendant had only a special property as bailee in the goods in question, there should be a special finding as to the nature, extent and value of his interest, with damages, so that the court may by its judgment do exact justice between the parties. 3. That where this course had not been pursued a new trial should be awarded to the end that a proper verdict might be obtained, upon which the court would be able to render a proper judgment.
    ERROR to the District Court for Iowa County.

      Warren commenced an action of replevin against FitzPatrick, before a justice of the peace, for the unjust detention of one box and two barrels of merchandise. The property was replevied and appraised at $50. The transcript of the justice shows that the defendant pleaded pleas insisting upon a claim of title in himself to the goods in question. The justice found the property to be in defendant, -and assessed its value at $49.99, and one cent damages. The defendant waived a return of the property, and the justice rendered judgment in favor of the defendant, for $50 and costs. Warren, the plaintiff, appealed to the district court, and upon trial, the jury found the property to be in the defendant, and assessed the value at $50, and the damages at one cent, whereupon the defendant waived a return of the property, and moved for a judgment for the value thereof. The motion was overruled, the court offering to give judgment for a return, which was refused by the defendant. Subsequently the following judgment was entered:
    “This day came the parties aforesaid, by their attorneys, and the court having on a previous day of the term, refused to give judgment in favor of defendant for the value of the property replevied (he having waived return and insisted upon judgment for the said value), for the reason that it appeared from the proofs on the trial of the case, that defendant Fitzpatrick was a common carrier, and had received the said property replevied from the agent of said plaintiff Warren, at G-alena, HI., to be carried to Mineral Point, Wisconsin Territory, for the said plaintiff Warren; that said property was so carried and offered to be delivered to said plaintiff Warren, at Mineral Point, who refused to pay the said carrier’s charges, whereupon the said carrier (defendant) deposited the said property with Mr. Beech, a merchant at Mineral Point, until said charges were paid; and that said plaintiffs goods were there in the carrier’s possession, and retained for payment of charges. Now, therefore, from the finding of the jury in this case, and the judgment thereon, it is hereby considered and adjudged that the said defendant Fitzpatrick have return of said property so as aforesaid, taken under and by virtue of the said writ of replevin; and that a writ de retorno habendo do issue herein in favor of said defendant Fitzpatrick, against the said plaintiff Warren.”

      F. J. Dunn, for plaintiff in error.

      Farley Eaton, for defendant.
   Miller, J.

The defendant in error Warren commenced this action of replevin before a justice of the peace, where a judgment was rendered for the defendant. Warren appealed to the district court, where also a verdict and judgment were rendered for the defendant. It appears by the record that the defendant was a common carrier, and as such carried boxes of goods for the plaintiff from Galena to Mineral Point, and the parties not agreeing about the freight, the defendant retained the boxes, and the plaintiff instituted this action of replevin. The jury found the property to be in the defendant and valued it at $50. But, as, according to' the evidence, the defendant had but about $2.00 interest in the goods, the court refused to enter judgment in his favor for the amount of $50, which would enable him to recover the whole amount of the plaintiff, and entered a judgment for a return of the property.

By the act regulating the action of replevin before justices of the peace, which is the law by which this case is to be disposed of, it is directed, that “if on the trial of the issue joined, the jury shall find for the defendant, then the value of such goods and chattels, together with adequate damages shall be assessed by such jury, and the justice shall thereupon render judgment in favor of the defendant for.the value and damages so found by the jury.” It appears evident that as the directions of this statute must be pursued, the court erred in rendering judgment for a return of the property. The difficulty presented in this case might be obviated in cases in which bailees or officers holding property by virtue of liens or executions are defendants, if the jury were to return specially the nature and extent of the defendant’s interest. The court on such verdict could thereby render such judgment as to do exact justice to the parties.

The court erred in this case, by endeavoring to prevent the defendant from recovering more than he was honestly entitled to, according to the merits of the controversy between the parties.

The district court may with propriety from the facts in this cause order another trial, that a correct verdict may be rendered according to the extent of the interests of the parties.

The judgment of the district court must be reversed and the cause remanded for further proceedings according to law. Ordered accordingly.


text:
    Garrison vs. Owens.
    1. Evidence—subscribing witness. The best evidence of which the nature and circumstances of the case will admit must be adduced, and the best evidence of the execution of an instrument in writing, is the testimony of a subscribing witness; the next best being a proof of the handwriting of the subscribing witness, which will be admitted if the subscribing witness is dead, or out of the jurisdiction of the court.
    2. Absence from the Territory or State of a subscribing witness, so far as the admissibility of secondary evidence is concerned has the same effect as the death of such witness.
    EBBOB to the District Court for Iowa County.
    After this case was before the court, ante, 471, a sufficient replication to the plea of the statute of limitations was put in, to the effect that the note upon which suit was brought was signed and witnessed by a subscribing witness, and issue was taken upon this replication. The facts which were brought forward on the trial of this issue and the rulings thereon are stated in the opinion of the court.

      JI. J. Dunn, for plaintiff in error.

      Parley Baton, for defendant in error.
   Irvin, J.

This is an action of assumpsit brought by Owens on an instrument in writing, of which the following is set out as a copy:

“For value received, I promise to pay Simeon Owens 5,375 lbs. of lead by the first day of August next, as witness my hand this 21st day of June, 1829.
(Signed) “ ¥M. GABBISON,
“GEOBGE BBOWN.”

The declaration contained the usual counts, and issues were joined on the plea of the general issue and the statute of limitations.

The plaintiff below, in support of his action, introduced a witness (James McKnight) who testified: “ That he was acquainted with the handwriting of George Brown, or was so in 1829 and 1830 ; had seen him write, and had been a partner of the said Brown, and from his knowledge of the handwriting of the said Brown he believed the name of George Brown upon said note, and at the bottom thereof, was, as he believed from his said knowledge, in the own proper handwriting of the said George Brown, and that the residence of the said Brown was unknown to witness, as he had parted with witness some years since, at St. Louis to go to Kentucky, and witness had not heard of him after that timeand then plaintiff offered the note to the jury, which was objected to by the defendant below, and the objection was overruled by the court. Evidence of the value of the lead was then adduced and the parties rested.

The defendant below moved the court to instruct the jury: “That before they could find for the plaintiff in the case under the pleadings, that he should prove to their satisfaction, that the signature of George Brown was to the said note as a subscribing witness, that the note was executed by defendant in his presence, and that the said witness subscribed it in the presence of the maker thereof, or by his order or directionwhich instruction the court refused to give, but did instruct the jury: “ That if they were satisfied from the testimony, that the name of George Brown was placed upon said note as a subscribing witness, then the law would presume that it was properly placed there;” to which the defendant excepted.

The rule of law is well established, that the best evidence which the nature and circumstances of the case will admit of, shall be adduced. The best evidence which the nature of this case would have admitted of, would have been that of the subscribing witness himself; but, if circumstances existed to put it out of the power of the plaintiff to produce, that witness, then the next best evidence was the proof of the handwriting of the subscribing witness.

The best evidence, as we have just said, of the execution of an instrument, is the testimony of the subscribing witness; the next best, is proof of the handwriting of the witness, and this will be admitted when the witness is dead, or out of the jurisdiction of the court. Clark v. Sanderson, 3 Binney, 192; Peters v. Condron, 2 Serg. & Rawle, 80; Engles v. Benington, 4 Yeates, 345.

The witness introduced on the trial of the cause, it seems, was for the double purpose of proving both the signature of the subscribing witness,- and his absence from the county. In the oase of Alter v. Berghaus, 8 Watts, 78; it is decided, that “absence from the State, so far as it affects the admissibility of secondary evidence, has the same effect as the death of the witness.” In this case the witness appears to have' been absent from the Territory, and it was therefore competent to prove his handwriting.

We are of opinion that the district court did not err in the decisions excepted to, and therefore affirm the judgment, with costs.


text:
    Nay vs. Crook.
    1. Trover—-demand and refusai,. In. an action of trover, where the defendant became in the first instance lawfully possessed of the property, the plaintiff cannot recover without showing a demand and refusal, or an actual conversion of the property by the defendants, and the rule is the same in replevin in the detinet.

    2. Amendments, a matter of discretion. The ruling of the district court, in allowing an amendment in a case within the statute on that subject, is a matter of discretion, and cannot be revised in this court on a writ of error.
    ERROR to the District Court for Rode Couuty.

      Croole brought an action of replevin against Nay for the unlawful detention of two horses and two stacks of wheat. The defendant moved the court to quash the writ, because the affidavit upon which it was issued did not state the value of the property, for want of a sufficient praecipe, and that the writ did not state the sum for which the action was commenced, nor the value of the property. Upon the hearing of this motion the plaintiff asked for leave to amend the writ, which was allowed, and the motion to quash was overruled. The cause was tried upon a plea of non dettnet, and the evidence given at the trial and the rulings of the court thereon are sufficiently stated in the opinion of the court.

      David Hoggle, for plaintiff in error.
    1. The court erred in its charge to the jury, the action of replevin being analogous to that of trover, and no proof of a wrongful taking or conversion being proved, the plaintiff could not recover without showing a demand and refusal. 1 Chitty’s Plead. 163; 4 Scam. 448; 24 Pick. 214.

      A. Hyatt Smith, for defendant in error,
    contended that the debts being past due, and the mortgage having become absolute, the plaintiff was entitled to the property, and might maintain replevin. He cited 9 Wend. 80; 8 Johns. 96 ; 6 id. 289 ; 9 Wend. 258.
   Dunn, C. J.

Qroólt, the plaintiff below, brought an action of replevin against Hay, defendant below, for unjustly detaining certain property of the plaintiff described in his writ and declaration. On the trial, the defendant asked the court to instruct the jury, that “to entitle the plaintiff to recover in this form of action, he should prove a demand of the property replevied of the defendant, and a refusal by him-to deliver.” This was refused, and the court instructed the jury, that “a demand and refusal was not necessary to entitle the plaintiff to recover.” Eor the refusal to instruct, and the instruction given, error is assigned.

In trover, a demand and refusal are necessary in all cases, where the defendant became in the first instance, lawfully possessed of the goods, and the plaintiff is not prepared to prove some distinct actual conversion. 1 Chit. 157. In this respect the action of replevin for unjust detention is analogous to that of trover. 4 Scam. 449; 1 Wend. 115; 15 Mass. 359.

In the case at bar, the reason and soundness of the rule is most apparent. From the evidence, it appears that the plaintiff claimed the property replevied, under a chattel mortgage, given by the defendant to oneNewhall, which had become absolute, by failure of the defendant to comply with the terms ; and it had been assigned to the plaintiff by Newhall. There is nothing in the evidence proving that the defendant had any knowledge of the assignment, or that the plaintiff was the real owner of the property, so that he could deliver it to the person entitled. The property was in possession of the defendant at the date of the mortgage, and has so continued to the commencement of the action by the plaintiff, without any demand whatever. We cannot doubt that the ruling of the court was erroneous.

It is also assigned for error, that £ £ the court permitted the plaintiff to amend his writ, after the motion to quash was sustained.” It appears from the record, that the quashing and leave were simultaneous. This is in accordance with the practice of the district courts. Leave to amend, in the particulars authorized by the statute of amendments, is granted in the discretion of the court, and is not the subject of revision here on error, as has been repeatedly decided. We are of opinion, that the judgment of the district court be reversed, with costs, and the cause remanded for further proceedings consistent with this opinion. Ordered accordingly.

       The supreme court will not review an order or ruling of the court below, or a judgment in a case wherein such order or ruling was made for an err oneous exercise of the legal discretion vested in such court in making such order or ruling, unless there was a gross abuse of such discretion. 2 Chand. 152; 3 id. 41; 3 Wis. 437; 5 id. 107; 6 id. 57; 7 id. 496; 10 Mis. 388; 1 id. 209, 17, 70.


text:
    Woodle vs. Houghton.
    1. Statute construed. So much of article 12, statutes of Wisconsin, 340, entitled “ An act concerning- justices of the peace,” as is necessary to carry into effect the act of January 30,1844, concerning justices of the peace, and for other purposes, is retained and not repealed.
    2. Certiorari—practice. In proceedings hy certiorari, where the error relied on is that the evidence did not warrant the finding, it is not enough to detail the evidence in the affidavit for the writ, hut the error relied on must he distinctly pointed out; hut if the affidavit distinctly presents the points, it is not necessary to state at its close the precise grounds of error.
    ERROR to the District Court for Qreen County.
    The case is stated in the opinion of the court.

      A. Hyatt Smith, for plaintiff in error.

      David Noggle, for defendant in error.
   Miller, J.

The plaintiff in error brought this case into the district court, by certiorari to a justice of the peace. A motion was filed in the district court to quash the writ and dismiss the suit, for the reason that the ground of error alleged is not set forth in the affidavit on which the writ was allowed; which motion was sustained by the court.

The act to amend an act entitled “An act concerning justices of the peace, and for other purposes, approved January 30, 1844,” provides, “that in all cases where an appeal is not allowed by the provisions of this section, it shall be lawful for either party to remove the cause to the district court, by a writ of certiorari, and so much of article 12 of the act entitled “An act concerning justices of the peace,” as will be necessary to carry the provisions of this act into effect, is hereby retained—section 14 to the contrary notwithstanding, and in such cases, it shall be the duty of the justice to return all the testimony and proceedings before him.” On an examination of said section 12, on page 340 of the statutes, it will appear, that the party must set forth in his affidavit the ground of error alleged therein. The legislature deprived a party of an appeal, in all oases, where the recovery does not exceed $15, and continued the remedy by certiorari, in cases under that sum. Article 12 prescribed a system of practice, intended to be complete and perfect in itself, and seems to be necessary to enable a party to have his case properly presented to the court, and correctly decided. The whole requirements of the twelfth article must be complied with, and as the party is deprived of having his cause tried on its merits by appeal, the legislature intended that the justices must return all the testimony and proceedings had before him.

The affidavit merely sets forth, that the declaration was verbal, stating that the plaintiff was possessed of four hogs and the defendant wrongfully converted them to his own use, and claimed $50 damages, to which the defendant pleaded the general issue — a statement of the evidence, and that this application for a writ of certiorari is made in good faith and not for the purpose of delay.

Where the error relied on is that the evidence did not warrant the verdict, it is not enough to detail in the affidavit the facts proved ; but the party must specifically state that such is the ground upon which the allegation of error is founded. People v. The Suffolk C. P., 18 Wend. 550. Rut if the affidavit distinctly presents the points relied on for error, it is not necessary to state specifically at the close of the affidavit the precise ground upon which the allegation of error is founded. People v. Onondaga C. P., 8 Wend. 509.

The judgment of the district court dismissing the case was correct, and must be affirmed.