text:
    The United States ex rel. Noyes vs. Hatch.
    1. Rock River Canal grant.— Tlie act of congress donating land to the Territory to aid in tlie construction of the Milwaukee and Rock River canal, authorizes the legislature to elect or appoint the persons to manage and dispose of the land.
    2. Civil oeetcers—Executive.—The register and other officers appointed for the disposal of said lands are not civil officers within the meaning of the organic law of the Territory, and the legislature has the right to appoint them directly by naming them in the law, or to elect them under an existing law providing for that mode of filling those offices ; and the exercise of this power does not conflict with the right of the executive to appoint all civil officers.
    3. Same.— The term civil officers, as used in the organic law (Act of Congress of April 20,1836), embraces only those officers in whom a portion of the sovereignty is vested, or to whom the enforcement of municipal regulations or’the control of the general interests of society is confided, and does not include such officers as canal commissioners.
    This was a motion for a mandamus. Both the relator and the respondent claim to be register of the board of commissioners of the Milwaukee and Rock River Canal Company, and the case was brought before this court to test the right to the office. The affidavit of the relator states, that on the 22d day of February, 1842, he was appointed by the governor, register of the board of commissioners of the Milwaukee and Eock Eiver Canal Company, and commissioned until the end of the next session of the legislature. That on the 13th of March he took the oath and gave the bond required by law, which bond was accepted and approved by the governor, and immediately entered upon the duties of his office, which he has continued to discharge ever since ; and that the respondent has in his possession the books, documents, charts and papers pertaining to the said office, and refuses to deliver them to the relator, although demanded of him, and evidence of the appointment and qualification of the relator have been exhibited to him.
    By agreement of the parties, a rule to show cause was considered as having been entered, and the case was submitted upon an application for a peremptory mandamus.
    The respondent showed for cause that, on the 18th day of February, 1842, he was duly elected to the said office, on joint ballot of both houses of the legislative assembly; that he had duly taken and subscribed the oath of office required by law, and executed the requisite bond, which was approved by the district attorney for the county, and presented the same to the governor for his acceptance and approval, who refused to approve and accept said bond, on the ground, as alleged, that the respondent was not lawfully in office. The respondent insisted that having been duly elected to said office according to the provisions of the existing law, and having done all in his power to qualify himself legally, he had a right to retain the possession of said books, documents, charts and papers ; that the relator had not been appointed to said office according to law.

      A. W. Siow, for relator:
    The office of register of the board of commissioners of the canal company being created by law can only be filled' by appointment of the governor, according to the provisions of the law organizing the Territory. The act of the legislature of 26th February, 1839, creating the office, was in accordance with this principle, and provided that the office should be filled by executive appointment. The act of 11th of January, 1840, providing for the election of the canal officers by joint ballot of both houses of the legislature, conflicts with the organic law and must be regarded as nugatory. These are civil officers, or they are not officers at all. Blackstone defines an officer to be a person clothed with authority to exercise a public employment and receive the fees and emoluments therefor. These canal commissioners exercise a public employment to which emoluments are attached by law, which the incumbents have a right to receive; they are, therefore, strictly within the definition of the term, and as their duties are purely of a civil nature,' they must be civil officers, who, the organic law says, shall be appointed by the governor.
    The validity of the act of 1840, under which the respondent claims the office, involves a question of much greater importance than the mere contest between individuals. The power of legislation is limited to rightful subjects. No subject is a rightful subject of legislation which conflicts with the constitution of the United States, the laws of congress, or the ordinance of 1787. It is conceived that the act of the legislative assembly of 1840 conflicts with the provisions of the organic law in prescribing the mode of filling these offices, and that, therefore, the subject is not a rightful subject of litigation ; if so, the act will be declared void. The office, however, exists under the former law, and will remain.. The relator has been appointed to this office in the manner pointed out in the act of congress, and is lawfully entitled to the books and papers belonging to it.

      Edward V. WTiiton, for respondent:
    We contend that the canal commissioners are not officers within the meaning of - the organic law. We will examine the question.
    1. Are they such officers ? Certainly they are officers of some kind, but not such officers as were contemplated by the law. That law did not intend to include every person exercising any kind of public employment, such as road commissioners, bank or canal commissioners. Persons required by law to do some specific acts are not officers within the meaning of the act of congress.
    2. Admitting these persons to be officers within the meaning of the organic law, the right of the executive to appoint them is superseded by the act of congress donating the canal lands. See Acts of Congress of 1838, p. 76, §§ 1, 2. Here is a donation of lands for a specific purpose, and their entire control is vested in the legislature of the Territory, or such person as the legislature may appoint. The canal commissioners are merely the agents of the Territory 'to execute the acts of congress and of the legislature in relation to these lands. If the governor has the right to appoint them, he has the power to remove them, and thus he might take from the legislature the control of the canal lands which was given to it by congress.
    3. The power of the legislature, when exercised upon a rightfnl subject, can only be questioned by congress, and that body must disapprove the act before its validity can be called in question.

      J. M Arnold, in continuation:
    This is a case of first impression. There is no precedent or authority to control the court in its decision. The question will therefore be decided upon a sound construction of the law and the reason of the law. To arrive at a correct conclusion, it is not necessary to show that the respondent was lawfully in office. The relator must show, affirmatively, that he is the lawful incumbent, and if he fails to do this he must fail in his application.
    By the act of congress donating the canal lands, the Territory is made a trustee for the purposes of the act, and the canal officers are only the agents of the Territory to fulfill that trust.
    Admitting that the canal officers are civil officers within the meaning of the organic law, still, by a subsequent act of congress of equal validity, the appointment of these officers is given, according to the fairest construction, to the legislature. It will be seen upon examination, that there is a material difference in the wording of the organic law and the act donating the canal lands. By the organic law the governor is made a constituent part of the legislative assembly. The word 44 legislature ” does not occur in that act, but the words, “legislative assembly,” which means the governor, council, and house of representatives, is alone used. In the latter act, the word 44legislature” is only used; and the control of the canal lands is given to the legislature, to be disposed of by that body or by such persons as it shall appoint for that purpose. It seems clear that the governor has nothing to do with filling these offices, unless the legislature gives him the authority.

      II. N. Wells, for relator in conclusion:
    There is in reality but one question involved in the case. Are the canal commissioners civil officers? If they are, the motion must be sustained. If we consider the nature of their employment, their duties and emoluments, and compare them with all legal definitions of the term “officer,” the question must be decided affirmatively. The law organizing the Territory clearly vests the power of appointment in the governor, and as the law stands he can only be divested of the power by implication.
   Miller, J.

This is an application for a mandamus, to compel the respondent to deliver over to the relator the books, records and papers, in, and pertaining to the office of register of the board of canal commissioners of the Milwaukee and Rock River canal. It is in reality a contest between the governor and legislature of th.e Territory, respecting the power of appointing the said commissioners ; and it has received from the conrt the deliberation and research demanded by the dignity of the parties and the great importance of the question.

By an act of congress, approved June 18, 1838, entitled “An act to grant a quantity of land to the Territory of Wisconsin, for the purpose of aiding in opening a .canal to connect the waters of Lake Michigan with those of Rock River,” there was granted to the Territory for the said purpose, the odd sections along the course of the canal, and to be subject to the disposal of the legislature of the said Territory for the purpose aforesaid and no other. The said act further provides, that the commissioner of the general land office shall •ascertain, under the direction of the president of the United States, the particular lands granted to the Territory, and shall cause duplicate lists of the same to be prepared from the plats on file in his office, one of which he shall transmit to the governor of said Territory, who, or such other person or persons as shall be appointed for the purpose, under the authority of the legislature of the Territory, or of the State which may be erected out of the same, after the admission of such State, shall have power to sell or convey the whole, or airy part of said lands, at a price not less than two dollars and fifty cents per acre, and to give a title in fee simple therefor to whomsoever shall purchase the whole or any part thereof.

In pursuance of this act of congress, the legislative assembly of the Territory, on the 26th day of February, 1839, passed an act to provide for aiding in the construction of the Milwaukee and Rock River canal; the second section of which provided for the appointment, by the governor, by and with the advice and consent of the council, of three commissioners, to be styled the board of canal commissioners, one of whom to be designated as the acting commissioner, one as register, and one as receiver, and to hold their offices for the term of one year, subject, however, to be removed at the pleasure of the governor. They were also to give bond, with security, for the faithful discharge of the duties of their office. They were also authorized to administer oaths and examine witnesses, touching any applications for the registry of lands under the provisions of said act. They were also empowered in said act to make sale of the said lands, so as aforesaid granted to the Territory.

By an act of the legislative assembly, approved on the 11th day of January, 1840, it is provided that the canal commissioners shall be elected annually, on joint ballot of the council and house of representatives of the Territory, and shall hold their offices for the term of one year, and until others are elected in their places. This act, in this particular, superseded the act of the 26th of February, 1839.

It is provided in an act of congress, entitled “An act establishing the Territorial government of Wisconsin,” approved 20th April, 1836, that the legislative power óf the Territory shall be vested in a governor and a legislative assembly; and further, that the governor shall nominate, and by and with the advice and consent of the legislative council, appoint all judicial officers, justices of the peace, sheriffs, all militia officers, except those of the staff, and' all civil .officers not otherwise provided for.

Under this provision of the organic law, the relator was appointed by the governor, regent of said board on the 22d day of February, 1842, during the recess of the council. The respondent was elected by the legislative assembly, on joint ballot, on the 18th day of the same month, to the same office, in pursuance of the act of January, 1840. They both claim to exercise and hold the same office under their respective appointments, and the question for the determination of the court is which appointment is legal.

The above-mentioned act of congress, making the said grant of land, was passed more than two years after the date of the organic law of the Territory; and they are both of equal power, force and effect, in relation to their respective objects, and are on an equality as laws enacted by congress. The organic law is binding upon the legislature of the Territory, as the constitution of a State is upon the action of its legislature; but it is a mere act of congress, subject to its amendment, modification or repeal. Under the constitution, it was competent for congress to legislate directly for the Territory; but, as this would be inconvenient, and probably not consistent with the immediate or local wants or interests of the people, the Territorial government was created by the organic law, wherein the governor and legislative assembly are authorized to discharge their respective duties therein referred to, for the interest and protection of the people. Congress passed the act of June, 1838, with a full knowledge of the organic law, and of the power given therein to the governor to make appointments. This is a law of a peculiar character for a specific purpose — a mere grant for a certain purpose not connected with the government of the Territory or with the respective functions of the governor and legislature, as directed and authorized in the organic law. The lands granted by this act were made subject to the disposal of the legislature for the purpose mentioned in the grant; and by authority of the legislature, the governor himself, or some other person or persons, are to be appointed to make sales of these lands. In order to carry into full effect the objects and intentions of this grant, it was competent and proper for the legislature or legislative assembly to pass an act authorizing and appointing the governor to act as the commissioner, or to authorize the governor to appoint the commissioner with the advice and consent of the council, as was done in 1839, or for the election of a commissioner or commissioners on joint ballot—and such law, whatever it may be, is the proper rule of action until repealed.

This is an application to the court, to declare void the act of January, 1840, under which the respondent was appointed, on the ground that it conflicts with the organic law. It would be the right and duty of the court to do so in a clear and manifest case. 12 Serg. & Rawle, 330; 3 id. 169; 4 Wheat. But this, in the opinion of the court, is very far from being such a case. The propriety of the act of January, 1840, in • this particular, and of the election or appointment of the respondent in pursuance of it, is beyond all question or doubt.

The power of the governor to appoint the relator remains to be considered. This power is claimed for the governor by virtue of the seventh section of the organic law, in which he is authorized to nominate, and by and with the advice and consent of the council, to appoint all civil officers not therein provided for. Laying aside the position that this office of canal commissioner was not contemplated by congress at the enactment of the organic law, it may be inferred that the term civil officers was intended to embrace such officers as in whom part of the sovereignty or municipal regulations, or general interests of society are vested; and that such has been the general understanding in the States, under their constitutions, is known to citizens of experience and observation. But this question is not without authority of a very respectable character. On page 244 of 17 Serg. & Rawle, will be found, quoted from 3 Greenl. 482, which is not in the library, as follows: In 1822, the supreme judicial court of the State of Maine, .consisting of Mellen, Chief Justice, and Pueble and Weston, Justices, in an opinion given to the governor of that State, say, “that the terms office and officers are used in the constitution of Maine, where it prescribes an oath of office to all legislative, executive and judicial officers, imply a delegation of a portion of the - sovereign power to, and possession of it by the person filling the office, and that a person clothed by a resolve of the legislature, with no other powers than those of superintending the public lands, and performing certain acts relating to them, under the discretionary regulation of the governor, was not an officer, and therefore was not required to take the oath.

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

In the case of The Commonwealth ex rel. Lehman v. Sutherland, 5 Serg. & Rawle, 145, which was a rule to show cause why leave should not be granted, to file an information in the nature of a quo warranto, against Joel B.' Sutherland, to inquire by what authority he exercised the office of Lazaretto physician ; Chief Justice Tilg-hman uses the following language: The word office is of very vague and indefinite import. Every thing concerning the administration of justice, or the general interests of society, may be supposed to be within the meaning of the constitution, especially if fees and emoluments are annexed to the office. But there are matters of temporary and local concern, which, although comprehended in the term office, have not been thought to be embraced by the constitution. And when offices of that kind have been created, the legislature have sometimes made the appointment in the law which created them ; sometimes given the appointment to others than the governor ; and sometimes given the power of removal to others, although the appointment was left with the governor. The officers of whom I am speaking (says the chief justice), are often described in acts of assembly by the name of commissioners. Such, for instance, as one employed in the laying out of roads and canals and other works of a public nature. Yet all these perform a duty, or in other words, exercise an office. So, likewise, officers within the limits of a corporation are generally, appointed by the corporation, unless they concern the administration of justice. And in order to discover in what light this office of physician to the board of health has been viewed, the chief justice traced the health laws from their origin, and satisfied himself that it had been considered, and justly considered, as an office under the control of the legislature, and subject to their modifications as to appointment, duration and removal. Judge Duncan, in his opinion in the same case, on page 154, says: That the power of appointment to a new office, without commission from the governor, in the law creating the office, has frequently been exercised ; as the commissioners appointed by the act of April, 1794, to settle the compensation of Pennsylvania claimants for lands within the seventeen townships of Luzerne county. The commissioners are named and appointed by the act, without any intervention of the governor, except in his legislative capacity of approving the act. These commissioners were in the nature of judicial officers, exercising important and discretionary powers and judicial functions; and although the constitutionality of many portions of that act has been called in question, yet this has never formed an objection. The enumeration of such appointments would be useless. It would be too much now to pronounce that all this was usurpation on the constitutional rights of the governor, forbidden by the constitution and void. In most cases of local appointments, they are made by the people, or by certain bodies of men authorized by the law creating the office. This act and appointment bear date but four years after the adoption of the constitution of the State. In the case of The Commonwealth v. Douglass, 1 Binn. 77, as early as the year 1803, it appears that Douglass had been appointed an inspector of the prison of Philadelphia in pursuance of law. The propriety or legality of the election was disputed, but not the constitutionality of the law under which it was made. Chief Justice Tilg-hman, in the case of The Commonwealth ex rel. Reynolds v. Bussier, 3 Serg. & Rawle, 457, says: It is understood that, in what I have said, I do not mean to include certain officers (so called, when that word is taken in its largest sense), of a local, limited or corporate nature, which have not been supposed to be comprehended in the governor’s power of appointment. By the constitution of Pennsylvania, article 5, section 2, it is declared, that the judges of the supreme court,' and the presidents of the several courts of common pleas, shall not hold any other office of profit under the commonwealth. Thomas Cooper, while acting as a commissioner to settle the compensation to claimants to lands in Luzerne county, above referred to, was appointed a president judge ; and his acts as such commissioner, after he qualified as such judge, were objected to in the case of Shepherd v. The Commonwealth, 1 Serg. & Rawle, 1. It was there decided, that the office of commissioner, which Judge Duncan in the case above referred to, said was in the nature of a judicial office, exercising important and discretionary powers and judicial functions, was not an office within the meaning of the constitution.

By the same constitution, article 1, section 18, no person holding any office under the United States, or that commonwealth, shall be a member of either house of the legislature during his continuance in office. Charles Biddle, a member of the senate of Pennsylvania, was appointed, by the president of the United States, to act as a commissioner to sign bills or notes, called treasury notes, issued under the authority of the act of congress, for which he received a compensation. The question was brought before the senate, who decided that his seat was not thereby vacated. 1 Serg. & Rawle, 10. The same constitution declares the holding of offices or appointments under the State incompatible with holding or exercising offices or appointments under the United States. Under this provision, together with the laws passed in addition thereto, the supreme court of that State decided, by a majority, in the case of The Commonwealth v. Binns, 17 Serg. & Rawle, 219, that the selection of an editor of a newspaper to print the laws of the United States, by the secretary of state of the United States, is not conferring an office or appointment under the United States, incompatible with the office of alderman of the city of Philadelphia.

The different acts of the legislature of Pennsylvania respecting the internal improvement system of that State from 1825 to 1829, authorized the governor to appoint the canal commissioners ; but, by the act passed in 1829, the power of the governor to appoint them was revoked, and they were appointed, in pursuance of law, by the legislature. Although the board of commissioners was clothed with immense powers in the disbursement of money and extensive patronage, it is not,, after a diligent research, to be found in the books of reports, that the governor’s rights or prerogative, under the constitution, which authorized him to appoint all officers, which officers are established by that constitution, or shall be established by law; were questioned, or that the constitutionality of the law under which the legislature made the appointment, was brought to the attention of the courts. It is true that this power was afterward restored to the governor by subsequent acts of the legislature, but the precedent remains.

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

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

Motion for mandamus overruled.


source: Caselaw Access Project

author: Irvin, J.

license: Public Domain

text:
    Norton vs. Rooker. Rooker vs. Norton.
    1. Constitutional law.—An act of the legislature will not be declared unconstitutional unless its repugnance to the constitution is clear and beyond reasonable doubt.
    2. Compulsory reference.— The statute of Wisconsin authorizing the district courts to refer certain cases to referees, without the consent of either party, is valid, and is not in violation of the right of trial by jury, secured by the constitution.
    3. Report of referees.— A report of referees which reports a sum certain found to be due and the testimony upon which the decision is based, is sufficiently certain, although it does not state the facts which they find, or show what particular claims have been allowed or disallowed.
    4. Pleading and evidence.—Partial failure of the consideration of a note may be given in evidence on the trial, where notice has been given of the defense intended to be set up, but not under the general issue without such notice.
    5. Notice.— A notice of special matter to be given in evidence under the general issue need not be as formal as a special plea, and if it contains matter which embodied in a formal plea, would be good on a general demurrer, and is set out with such certainty as to apprise the plaintiff of the facts relied upon and intended to be proved, it is sufficient.
    6. Set-off — unliquidated damages.— Although unliquidated damages cannot be set off against a certain demand, yet where the damages arise from a breach of the plaintiffs contract which formed a part of the consideration of the note sued on, they may be given in evidence under a notice, for the purpose of reducing plaintiffs damages.
    7. Conditional report.— Where referees report a sum certain to be due to the plaintiff, and also make a conditional report, stating that they find a sum certain to be due from the plaintiff to the defendant which in their opinion cannot, according to law, be allowed in the same action, bnt that if their opinion of the law is erroneous, then the sum found to be due to the defendant is to be deducted from the amount found in favor of the plaintiff; the court may, if the matter found in favor of the defendant can be legally taken into consideration, confirm both reports and enter judgment for the balance in favor of the plaintiff
    ERROR to the District Court for Racine County.

      Norton brought an action of assumpsit against RooJcer, in the court below, upon a promissory note for $464, dated July 21,1838, payable one year after date in boots and shoes, to be delivered at Foxville, in Racine county. The declaration also contained the common money counts, accompanied with a copy of the note and a bill of particulars. RooTter pleaded the general issue, and gave notice of special matter to be given in evidence, to wit: That the note sued on was given without consideration, and was obtained by fraud and deceitful representations of the plaintiff; set-off with a bill of particulars, in which he claimed $1,000 for Norton’s failing to fulfil a verbal contract to finish certain buildings on Rooker’s farm, and dig and wall a cellar under his house.
    The district court ordered the case to be referred to three referees, to which order of reference RooTter objected.
    The referees reported to the court that there was due from RooTter to Norton the sum of $360, besides costs. They also reported, by way of supplement, that there was due from Norton to RooTter—■
    For damages for not digging and completing cellar, according to contract......................... $200 00
    For not finishing wood-shed and granary....... 41 00
    For not finishing barn, and damage............ 16 50
    Amounting in all to the sum of $257.50; that the allowance of these sums was objected to by Norton on the ground that they were not proper subjects of set-off, which objection was sustained by the referees ; but they say that if they erred in that decision, then the sum of $257.50 is to be deducted from the sum found in favor of Norton, who is to recover the balance. The referees also reported the evidence taken before them. It appeared that the note was given in part consideration of an improvement on public lands which was sold to Rooker by Norton, and, as a part of the contract, Rooker was to dig and complete a cellar, to finish a wood-shed, granary and barn previous to the time of the payment of the note.

      Rooker excepted to the report of the referees, the substance of which exceptions is embodied in his assignment of errors.
    The district court confirmed the report and supplement, and gave judgment in favor of Norton for the balance, after deducting the claim of Rooker for damages, as found in the supplement of the referees. Both parties were dissatisfied with the decision of the court; Norton contending that he was entitled to his whole claim, as found by the referees, without any deduction, and Rooker, that the whole judgment should be reversed, and the case came to this court upon cross writs of error.

      Rooker assigned errors in the proceedings of the district court, as stated in the opinion of the court.
    And Norton made the following assignment of errors on his part:
    The damages which the defendant sustained, as reported by the referees, ought not to have been deducted from the plaintiff’s demand for the following reasons:
    1. By the agreement of the parties, the payment of the note was a condition precedent to the doing the work for the not doing of which the defendant complains that he has sustained damages.
    2. The defendant having once promised to pay the note in the hands of an assignee, was ever after barred from setting up a want or failure of consideration.
    3. Partial failure of consideration cannot be set up in defense of a note.
    4. Unliquidated damages cannot be set off.

      5. There were fatal variances between the contract proved and the one pleaded.

      The causes were argued separately. Iu the case of Rooker v. Norton, II. B. Townslee, for plaintiff in error, contended:
    1. The order of the court below, referring the cause to referees, against the will of Rooker, was erroneous. This is a common-law action, and the value in controversy exceeds $20. The defendant below insisted upon a trial by jury. The right to this is secured to him by the constitution of the United States, and it is not competent for the legislature and the courts to substitute another mode of trial. Article 7 of the amendments to the Constitution of the United States ; 1 Aiken, 148.
    2. The report of the referees ought to have been set aside by the court below. The report ought to have stated the facts, and not the testimony at length. The report should be like a special verdict of a jury, to enable the court to apply the law to the facts, and not a mere report of evidence without any statement of facts established by it. 1 Aiken, 148; id. 359; 1 Yerm. 250; 3 id. 359; id. 389; Law Eeporter, vol. 1, No. 2; 5 Am. Dig. 52, 53.
    3. The report should have stated the accounts between the parties, and showed what had been allowed or disallowed of each. A report showing a gross sum to be due to either, without stating the facts upon which the decision is based, is erroneous. The referees should not report a gross sum in the nature of a general verdict, for they are not the jury; they are only auditors or mere officers of the court, and cannot decide the cause but only prepare the case for the judgment of the court. 1 Aiken, 359; 3 Yt. 389 ; id. 597; Law Eep. vol. 1, No. 2; 4 Cranch, 307 ; 6 id. 9-29.
    4. Fraudulent representations, or the concealment of defects in the property sold, will avoid all contracts, and the defense may be made under the general issue. If it was proved before the referees that the note sued on was obtained by false and fraudulent representations, or that
      Norton concealed material defects in the property sold to BooTcer for which the note was given, or misrepresented its quality and value, the referees ought to have disallowed the whole of Norton’ s claim. Com. on Con. 35, 66, 207, 209 ; 12 East, 637; 2 Saund. Plead. & Ev. 907; 3 Johns. 280; Cowen & Hill’s Notes to Phil. Ev. part 2, page 1475; Sugden’s Yend. P. 5.
    The proof in this case shows that BooTcer wished to purchase a farm of a particular description, and possessing particular advantages; that Norton represented that he had one to sell of just such description, which he thereupon sold to BooTcer, for which the note in suit was given in part, and that these representations were false; Norton is therefore not entitled to recover.

      Marshall M. Strong, for defendant in error.
    The statute of the Territory authorizing the courts to refer cases is constitutional. The meaning of the article in the constitution that has been referred to is, that a man shall be tried by his peers, and not by persons permanently connected with the court, and the number is not material. Our statute is copied from the statute of New York (see 2 Rev. Stat. N. Y. 384), which has been in force in that State since 1812, and its constitutionality has never been questioned there. Again, by the laws of New York, in cases before a justice of the peace, where the judgment is under $25, no appeal can be taken. A justice’ s jury consists of six persons. Thus, cases where the amount of the judgment is between $20 and $25, although they come under the constitutional provision relied upon here, are tried by a jury of six, a number unknown to the common law as composing a jury. This law has also the sanction of long standing without its validity being questioned. Referees under the statute are sometimes called a legislative jury; they answer every purpose, and secure every right that could be effected by a common-law jury.
    The report of the referees is not liable to the objection embraced in the second and third errors assigned. The form of the report is adopted precisely from Yates’ Pleading, 799. The practice that has been pursued in this case in relation to the reference prevails in New York under a similar law. Yates’ Pleading, 339; Graham’s- Practice, 576 ; 4 Wend. 199. The cases that have been referred to by the plaintiff’s counsel, from Cranch, are where auditors were appointed in equity causes, and do not apply to this case; and those in the Yermont reports arose under the peculiar provisions of the statute of that State which is not analogous to ours.
    The fourth point assumed is not sustained by the evidence. The proof shows that Rooker spent several days at Norton’s house on the farm, and examined it for himself before he purchased; and in such case the rule of caveat emptor applies. But, if the contract is void, it is void in toto. Rooker cannot keep the farm and enjoy it for years and avoid paying for it.

      Moses M. Strong, in conclusion:
    One of the most important points in the case is the one first suggested by the plaintiff in error. To decide upon the constitutionality of a law is always a grave matter in the consideration of the court; but, when an act of the legislature is shown plainly to conflict with the constitution, the court will not hesitate so to decide. The right of trial by jury has always been considered one of the most valuable rights secured to American citizens. This right was not created or granted by the constitution; it existed before the constitution, as the birth-right of every American, and the constitution only confirms and secures the right. If we give a commonsense construction to the seventh article of the amendments, we must come to the conclusion that the act of the legislature authorizing the courts to substitute referees instead of a jury, against the will of a party, violates its provisions. The referees have been called a legislative jury. It matters not by what name they are called, they are not the jury that the party had a right to, to try his cause, when the constitution was adopted; they do not possess any of .the attributes of a jury; the party has not the benefit of a trial before the court and jury together, and the instructions of the court to the jury upon the law of the case.
    The objections to the report itself are based upon the supposition that the order of reference is legal. Admitting the order to have been legally made, still the report is bad, and ought not to have been confirmed by the court. The referees have reported testimony when they should have reported facts ; they have left the court to ascertain the facts from the testimony, and the court became the judge of the facts as well as the law. If they come in place of a jury, and are to be considered as a jury for all legal purposes, they ought to have decided what facts were proven by the testimony.
    The case of Norton r. Hooker coming up for argument, Marshall M. Strong and H. N. Wells, for plaintiff in error, contended that, by the agreement of the parties, the payment of the note was a condition precedent to the performance of Norton's contract. Until the note was paid, Hooker could not require performance from Norton. Chitty on Bills, 87; Am. Law Lib. 33. At most, the agreements were independent of each other, and were the subjects of separate actions, and not of set-off against each other.
    Partial failure of consideration cannot be set up in defense to an action upon a promissory note. This is the universal rule of law in England, and wherever it has been departed from in the United States, it has been under particular, statutory provisions. Heal) v. Mc-Allister, 8 Wend. 109 ; Bailey on Bills, 534, 544 ; Chitty on Bills, 8 ; 5 Cow. 494; 1 Litt. 233; 5 id. 249; Harr. Dig. 524; Chitty on Bills, 88, 89.
    The express promise of Rooker to pay the note in the hands of an assignee precluded him from afterward setting up in defense any want or failure of consideration. This promise amounted to a legal admission of the sufficiency of the consideration, and estopped him from the defense that has been made in this case. 2 Cowen’s Tr. 740 ; Bigelow’s Dig. 705.
    The defense set np under Norton’s contract was not in mitigation of damages, but was under a notice of set-off, claiming unliquidated damages. The principle that unliquidated damages cannot be setoff is too well settled to need argument. 8 Wend. 109; Terr. Stat. of Wisconsin, 278. Again, the notice of special matter is bad. The rule in New York to test the sufficiency of a notice of this kind is to see if it would be good on general demurrer if it were embodied in the form of a' special plea. 10 Johns. 140. If the notice in this case is tested by this rule, it cannot be sustained.
    The contract proven before the referees was materially different from that stated in the notice. The defendant below ought to have been confined in his proof to the matters stated in his notice. 10 Johns. 140; Cowen’s Tr. 557, 558 ; 1 id. 207, 209 ; 2 id. 509.

      Moses M. Strong and H. B. Towslee, for defendant in error.
    The proof shows that instead of the payment of the note being a condition precedent to Norton’s performance, Norton was to perform his contract six months before the note became due, and that his performance was a condition precedent to the payment.
    Although, as a general principle, unliquidated damages cannot be set off, yet, where the damages arise from the non-performance of a condition precedent in a contract that entered into the consideration of the defendant’s promise, they may be brought in and allowed.
    Under the Revised Statutes of New York, which it is admitted is in this respect, in affirmance of the common law, partial failure of consideration may be given in evidence upon the trial to reduce the plaintiff’s recovery. 1 Cowen’s Tr. 174. The defense in this case was not insisted upon on the trial as a set-off, but as a partial failure of consideration, and as such, was properly allowed. Id. 174, 176 ; Cowen & Rill’s notes to Phil, Ev. 1475.

      ■ A notice of special matter need not be as particular as a special plea. The notice in this case was understood by the plaintiff, and accepted as sufficient; no objection was made to it at the trial, and it is too late now to except to its sufficiency.
   Irvin, J.

This cause came up on error to the judgment of the district court of Eacine county, given at the November term of said court for 1841.

The action was assumpsit instituted by Nelson R. Norton, the defendant in error, against Joseph Hooter, the plaintiff in error, upon a promissory note, to be discharged by a payment in shoes and boots, and an account, and declared on with the usual counts in that form of action ; to which the defendant interposed a plea of the general issue, with a notice of set-off and special matter to be given in evidence.

In the progress of this cause, it appears that the court referred it to referees, in pursuance of the authority contained in the 84th section of “an act concerning proceedings in courts of record.” Terr. Stat. of Wisconsin, p. 209, by which it is provided that “whenever it shall appear probable, in any cause pending in any district court, that the trial of the same may require the examination of a long account on either side, the said court, at any time after issue joined, in such case, may refer such case by rule of court to referees, who shall be three such persons as the parties may agree upon, and if they shall not agree, the said court shall nominate them, which referees shall hear and examine the matters in controversy, and report thereon,” etc.; and upon which reference report was afterward made and accepted by the court, and judgment given thereon.

It further appears that the plaintiff in error, in the first writ, objected to the reference of the cause, on the ground that he had a right to trial by jury, but which objection was overruled; and it further appears that the defendant objected to the acceptance of the report of the referees for reasons stated in Ms bill of exceptions, the substance of wMch is embodied in his assignment of errors in this court, which is as follows:

1. “ The court erred in referring tMs cause to referees, against the consent of the plaintiff in error, the action being a common law action.

2. The court erred in ruling that it was not necessary for the referees in this cause to report the facts as found by them in the trial of the cause.

3. The court erred in ruling that it was not necessary for the referees to make a report of what they had allowed of the plaintiff’s claim or disallowed, or what the referees had allowed or disallowed of the claim of off-set of the defendant below.

4. For that the court erred, in ruling that the referees had decided properly in finding that false representations, as proved, did not avoid the note in suit.

5. The court erred in ruling that the report of the referees be accepted, and in entering judgment thereon.”

The first error assigned is upon the construction of the 7th article of the amendments to the constitution of the United States, wMch is, that “in suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved,” etc., it being contended by the counsel for the plaintiff in error that the law of the Territory before referred to is in violation of this portion of the constitution.

To justify a court in declaring a law of the legislature unconstitutional, the case must be clear and manifest. 12 Serg. & Rawle, 330; 3 id. 169. Is this such a case ? If we be permitted to take the uncontradicted action of the different States on this subject, indulged in, in some instances, for a quarter of a century, as an answer to this question, we should say that it is not; for in some shape or other, has the practice of referring suits to referees exis - ted in some of the States, perhaps, ever since the adoption of the federal constitution, and in States, too, where similar provisions are found in the State constitutions.

In the State of New York, where the provisions of the law in this .respect are similar to those of onr statute, the practice has existed for upward of thirty years. In Pennsylvania it has existed, in even a stronger form, for many years under a clause in its State constitution, similar to that of the United States constitution in relation to trial by jury; and so free from constitutional objection is the subject there considered, that the court refused to consume time in hearing the question argued. 6 Serg. & Rawle, 240; 1 Binney, 416.

That a reference of a cause to referees to hear and examine and report thereon is not a trial by jury, in the usual acceptation of the term jury trial, may not, perhaps, be doubted; nor is it a violation of the constitution of the United States to have a jury differing from that known at the common law, which was composed of the number of twelve, as, perhaps, for different purposes, as the. legislature might think best, they have (and unquestioned as to constitutionality) been composed of numbers varying from six to twelve.

The principal object of the institution of trial by jury seems to have been to give to persons, whose rights are to be inquired into, the right to be tried by their peers. If that be true, then, are those rights less secure when tried by peers, not it is true, called jurors, but referees, who are as solemnly sworn as jurors ? We cannot imagine that they age. But however differently minds may speculate upon this subject, we cannot see that this is such a clear case of unconstitutionality as to justify a reversal of the judgment of the district court on that point, declaring the law void; particularly too, when we know that all the errors committed by the referees may be as fully corrected by the court as though the trial had been by jury before that court.

Under the second error assigned, it was contended, that as the referees had reported to the court all the evidence in the case, as well as their conclusions from it, they exceeded their powers (deeming them to be to report the facts and not the testimony), and for that reason the defendant below objected to the acceptance of their report. How far this objection is good we shall presently see. It is true, that had the referees made “report .of what they allowed of plaintiffs claim, or disallowed; or what they allowed or disallowed of the claim of off-set of the defendant below,” as assigned in the third assignment of error, and here noticed in connection with the second, it might have been a source of further satisfaction to the parties ; but had they stopped with such a report, they would have left undone a much more important thing, that is, left the court without the fullest means of ascertaining whether error and injustice had found their way into the proceedings ; and as there is nothing in the law which requires a report of facts alone, we do not see that there was error in the report, which reported to the court the testimony, as well as the sum ascertained by them to be due from the defendant to the plaintiff; and that they were bound to find the sum due is evident from the law itself, which is, “and if the report of the referees or a majority of them, shall be confirmed by the court, and any sum be thereby found for the plaintiff, judgment shall be entered for the same with costs,” etc. We cannot therefore see that there was error in the decision of the court in these particulars.

The fourth error assigned, and which upon an examination of the evidence, we cannot sustain, very conclusively shows that there was no impropriety in that part of the report of the referees which'puts the court in possession of all the testimony.

Finding no objection thus far to the decision of the court below, and seeing nothing in the fifth assignment of error beyond matters already noticed, we affirm the judgment of the district court, with the costs of this case ; but as it appears that both plaintiff and defendant were dissatisfied with the judgment of the district court, as both are here on separate writs of error, and both now before the court, we will now consider the errors as assigned under the second writ.

It appears, as has been already stated, that the suit was brought on a note payable in boots and shoes, and in part consideration of an improvement on public lands which was sold by plaintiff to defendant, and as a part of the contract, plaintiff was to dig and complete a cellar, to finish a woodshed, granary and barn, previous to the time of payment of the note. The time for doing the work and making payment of the note was afterward, by agreement of the parties extended. With defendant’s plea of general issue, he gave notice that he would give in evidence that the note was given without any consideration ; that he claimed as a set-off a large sum of money, to wit: the sum of $1,000, for plaintiff’s failure to fulfil a verbal contract to finish certain buildings situate on defendant’s farm, in Burlington, and for failing to build a cellar under the house situate on defendant’s farm. In the account filed by defendant in set-off, is contained the items: “Damages for not finishing barn according to contract, $100; damages for not finishing wood-house according to contract, $100; for failing to stone up my cellar, and finish the same, to my damage $250.” Although the notice is very inartificially drawn, we cannot say that it is so imperfect as to have justified the referees in excluding the evidence.

When it is remembered that this very matter is part of the consideration of the note, and for which it was brought into existence, we think that it was sufficient to notify the plaintiff of the defense intended to be set up by defendant. This notice, though not required to be, in the strict technical form of a plea (8 Johns. 455) must, neverthless, contain all the facts necessary to be stated in a special plea. 13 Johns. 475; 10 id. 142; 8 Wend. 590. It must also state truly the facts intended to be given in evidence. 14 Johns. 89. Where the notice was in general terms, that the defendant would prove that there were divers judgments, at the time of the sale of the land, outstanding against the plaintiff, which were a lien on the land, and which the defendant was obliged to pay and did pay, in order to prevent a sale of the premises, without specifying any particular judgment, Chancellor Kent, in 20 Johns. 746, says: “It would be unreasonable and unjust that the plaintiff, at the trial, should shut out the defense under the pretense that the defendant did not tell him in the notice, all the particulars of these judgments, when they must have been matters of record, and the defendant stood ready to prove the judgments by the record, and to produce the executions thereon, and prove the payment of them. ” On the same principle, in this case, the note in question and the matters in defense, relate to the same transaction between the parties, and the plaintiff must have known it sufficiently without its being formally stated in the notice.

The referees made a report in favor of the plaintiff, but reduced, by special report, under conditions of law, the plaintiff’s claim, on proof of facts referred to in the notice, and on which the court rendered judgment, after objection on part of the plaintiff, that partial failure of consideration could not be given in evidence and entertained, which is the question now to be considered. On this point there are conflicting opinions, but under the more recent and present practice of the courts, with a view to prevent circuity of action, it is generally allowed. In the supreme court of the United States, it is decided in some cases, which are collected in a note in 2 Peter’s Oond. Rep. 218, not to be a defense; but on examination, these decisions were probably, mostly made on the general issue. In 2 Wheat. 13, it is decided by the court not to be a defense under the general issue. So this court decides. To give evidence of a partial failure of consideration, a notice must accompany the plea of the general issue. 6 Binney, 198; 1 Serg. & Rawle, 477; 8 id. 178; 8 Cow. 31; 2 Wend. 431; 12 id. 246; 3 id. 236; 4 id. 483; Graham’s Pract. 231, 232; 7 Cow. 322; 3 M’Cord, 169; 1 Cowen’s Treat. 174; Bailey on Bills (Boston ed. of 1826), 340, in notes; 3 Kent’s Com. 78, 79, 80.

It is true that unliquidated damages cannot be set off, but this is evidence of matters in diminution of the plaintiff’s demand, arising out of the same transaction, and not technically an off set, although defendant called it so in his notice; and this is mere matter of form, and not of substance, and does not vitiate the notice, and particularly does it not vitiate it in this form of action, which is in its nature equitable.

The third error assigned, that the defendant having once promised to pay the note in the hands of an assignee, was ever after barred from setting up a want of failure of consideration, does not appear to have much in it. This note was not negotiable, and it does, not appear that the suit was for the use of a third person, but on the contrary, all off-sets and accounts between the parties seem to have been gone into. There is nothing appearing on the record to show but that the plaintiff was the actual and legal owner of the note at the time of the suit. The evidence affords sufficient explanation of the circumstances to settle the ownership of the note in the plaintiff. We are therefore, -on this branch of the case, constrained to affirm the judgment of the district court, with costs.

Note.—The provisions of chapter 288, Laws of 1864, authorizing compulsory references in certain cases, are held to be constitutional. County Board of Supervisors v. Dunning, 20 Wis. 210.


text:
    John Gardner and Isaac Z. Whitaker vs. The Board of Commissioners of the County of Grant.
    1. Amendment oe’record. — As a general principle after'a court has adjourned for the term, it has no power to amend or correct the record of the term. If the record is erroneous, it can only be corrected by writ of error.
    2. Same.— The statute of amendments does not extend to the correction of errors in the judgment after the adjournment of the term at which the judgment was rendered.
    ERROR to the District Court for Grant County:
    At the March term, 1840, of the Grant county district court, Gar&ner, one of the plaintiffs in error, was convicted of an assault with intent to kill, and was sentenced by the court to pay a fine and the costs of prosecution. By an arrangement with the district attorney, he together with WMtaTcer, the other plaintiff in error, came into court and confessed judgment in favor of the county commissioners, in an action of assumpsit, for the amount of the fine and costs, upon which judgment execution was stayed for a specified time by agreement of the parties. At the September term, 1841, of said district court, the plaintiff in error made a motion to amend the record of the judgment by confession, by inserting therein the consideration and reasons for the confession. The district court overruled the motion, to which decision exceptions were taken, and the facts sought to be placed upon the record by the amendment asked for, were made a part of the bill of exceptions. This writ of error is brought to reverse the judgment by confession.
    The following errors were assigned:
    1. The court erred in overruling the motion to amend the record.
    2. The district court erred in rendering the judgment which this writ of error is brought to reverse.

      First. Because the only consideration of the judgment was the compounding of a felony, for which there had been a conviction and sentence.

      Second. The judgment was not authorized by law.

      Third. The judgment is against public policy.

      Fourth. The judgment is without consideration and void.

      Moses M. Strong, for plaintiffs in error.
    It is a well-established principle of law that all contracts and agreements entered into for the purpose of compounding a penal act are against public policy, and void. 4 Black. Com. 133, 136; The People ®. Bishop, 5 Wend. 111. Gardner had been convicted of a felony and had been sentenced by the court. The judgment by confession, although not compounding the felony, was similar in its principles and worse in its consequences; it was compounding the sentence of the court. The pardoning power is vested by law in the governor alone. After sentence, he only, can relieve the convict. Neither the district attorney nor the county commissioners have any thing to do with the matter, and their attempting to relieve him from punishment, by taking a security for the penalty, has no authority of law to sanction it. If a bond be given which is against the policy of the law, it may be avoided. A judgment confessed, as in this case, that is not only without any lawful consideration, but against policy, ought for the same reason to be set aside.

      F. J. Bunn & T. P. Burnett for defendants in error
    contended, 1. That the judgment by confession estopped the plaintiffs in error from alleging aught against it, or reversing it on error. The only remedy against such a judgment is by bill in chancery, showing fraud or mistake in procuring it; and these are the only grounds upon which even equity can afford relief. When a judgment is confessed, it is an end of the matter so far as the courts of law are concerned. It does not appear that Gardner was committed until the fine and costs should be paid, as a part of his punishment.' The district attorney may have chosen to take a capias pro fine against him, and the court may have very properly awarded it. In many cases this would be the better course for the public and the public officers, where a pecuniary fine is all the penalty inflicted, as in this case. Suppose him in custody under a' capias for the sum imposed ; any person may become his security for it upon time, if acceptable to the authorities entitled to receive it. By such an arrangement the fine itself becomes discharged, and that is a sufficient consideration for any undertaking by him and his sureties to pay the money at a future day; and this is no compounding of felony. But the court cannot go into an examination of these matters. The confession amounts in law to a release of errors; and it would be without precedent or. reason to reverse a judgment, because the consideration upon which it was rendered is not spread upon the record.
    2. The district court had no power to amend the record at the time when the motion was made, and to have done so would have been error. The motion was made at the third term after the confession of judgment. The record was then "out of the power and control of the court, so far as the form and effect of previous judgments -were concerned. During the term, the record of all the proceedings of the term is entirely under the control of the court for amendment and correction. Por such purposes, the law considers the whole term as but of one day. But after the final adjournment, this power is at an end, and the court can never go back to previous terms and amend and alter the record of its judgments. There would be no stability in records if this were the case. The statute of amendments, broad as it is, does not authorize the amendment sought by the motion.
   Irvin, J.

This cause came into this court on a bill of exceptions taken to the decision of the district court of Grant county at the September term for 1841.

Upon an examination-of the transcript of the record, it appears that, at the March term of said court for 1840, the said Gardner and WhitaTcer appeared in court, and entered- a judgment by confession, in an action of assumpsit, in favor of said board of commissioners, for $232 and the costs of suit; and at the said September term of said court, they filed a motion, for reasons therein stated, to amend the record of such judgment by inserting therein the true consideration of the judgment, which motion was overruled, and exceptions thereto taken.

The only point that presents itself for consideration in this court is, did the court err in overruling the motion % It is a principle, too well established now to be questioned, that generally, after the adjournment of the court for the term, its record can never afterward be touched by that court,; and if error has found its way into the proceedings, it must be corrected by another and a higher court. To this general principle there are some few exceptions, and they are mostly of statutory provisions. One of the exceptions is, the proceeding by writ of error cora/m nobis. This is a proceeding which lies in the same court where the cause is tried; whereas the writ to correct errors in the judgment of that court, cannot be brought before the same court, but its object is to remove the cause to a higher court. For it would be absurd to appeal to the same court from an error of its own judgment. But as the writ of error cor am nobis does not question the judgment of the court, but only alleges some defect in the execution of the process, or some clerical misprison or mistake, or some error in the proceedings arising from a fact not appearing on the face of them (as when a judgment is rendered against a party after his death), there is no absurdity in permitting it to be brought before the same court that tried the cause. Thus, if the court enters up a judgment as confirmed against the appearance bail, whereas in truth and in fact he had filed a recognizance of special baft, and had set the office judgment aside, which, however, the clerk omitted to enter in the record, this writ of error coram nobis (some times called a writ of error in fact) lies to correct the proceeding, and upon the fact appearing, the court proceeds to reverse the judgment against the appearance had up to the point where the error was committed, and placing the cause in the state in which it would have been, had the fact been properly entered on the record, sends it back for farther proceedings. 2 Wash. 130; 2 Rand. 174. The provisions of our statute of amendments do not extend to such a case as is made by the motion under consideration. Believing that the district court had no authority to interfere with the judgment of a previous term, in the manner asked for by the motion, weaffirm with costs, the decision overruling the motion.

Note.—But seo Hill v. Hoover, 5 Wig. 386: As to Matters upon which the mind of a court did act, or-is presumed from the record to have acted, in rendering a judgment, it is precluded from reviewing such judgment at a subsequent term. This rule, however, does not prevent the court, at a subsequent term, from setting aside its own judgment for errors, on which, at .common law, the same court would reverse it on a writ of error coram nobis; nor from setting aside a void judgment, or a judgment on cognovit; nor from correcting clerical errors or mistakes in matter of form, nor from re-instating a cause dismissed by mistake. The Etna Life Ins. Co v. McCormack, 20 Wis. 265.


author: Millee, J.

text:
    Parkinson vs. McKim.
    1. Examination of parties. When a party to a suit has been notified under the statute, to appear and be examined as a witness on the trial and appears according to the notice, and is willing to be sworn and examined, he may he examined as a witness in the cause, whether the party who gave the notice wishes it or not, and although he may obj'ect to his being examined at the trial.

      2. Sealed note : pleading. In an action by the indorsee against the indorser, where the plaintiff declares upon a negotiable promissory note in the common form, with the usual averments of presentation, non-payment and notice, a note under seal, indorsed by the payee to the plaintiff, will not support the declaration, and cannot be given in evidence.
    3. Indorsement of sealed note. A note under seal, although it may be made payable to order, is not negotiable, and the indorsee of such a note cannot maintain an action upon it in Ms own name, against either the maker or indorser.
    4. Same. The indorsement of a note under seal is not a legal transfer of the instrument, nor does it make the indorser liable to the holder, or authorize him to insert any guarantee of payment over the indorser’s name ; it is nothing more than an authority to the holder to receive the money from the maker.
    5. Notice : due diligence. In an action upon the indorsement of negotiable paper, the questions as to the sufficiency of notice, and what constitutes due diligence, to charge the indorser when the facts are ascertained, or are not disputed, are questions of law for the court, and ought not be submitted to the jury.
    EEEOE to tlie District Court for Iowa County.
    Action of assumpsit, brought by McKim against ParTcison. The declaration contained the common counts, and a special count upon an indorsement of the following sealed note:
    “ On or before the first day of June next, I promise to pay D. M. Parkison, or order, the sum of two hundred dollars, for value received. Witness my hand and seal this 17th day of February, 1840.
    (Signed) JOSEPH CALDWELL, [Seal]”
    “Pay the within to Eichard McKim,
    (Signed) D. M. PAEKISON.”
    Upon the trial of the cause, the plaintiff below offered the note and indorsement in evidence and it was objected to by the defendant, but the court overruled the objection and the note was read. It was proved that the note was presented to the maker at maturity and payment demanded, and that notice of non-payment was given to ParTcison the indorser, but the precise time of giving the notice could not be fixed ; it was not, however, stated by any of the witnesses, to have been given within less than four days after demand and refusal of payment. It also appeared in evidence that ParTcison lived within eight miles of Mineral Point, where payment was demanded of the maker.
    Previous to the trial, ParTcison had given notice under the statute, that he wished to have McKim sworn and examined as a witness. McKim, attended under the notice and was willing to be sworn, but at the trial the counsel for ParMson declined calling upon Mm. He then gave notice to ParMsorC s counsel to have him (ParMson) sworn as a witness, and, upon ParMson being called and not appearing, he insisted upon being sworn and examined himself, wMch the court allowed, and to which the defendant’s counsel excepted.
    The defendant’s counsel requested the court to instruct the jury: “That if the jury find that the maker of the note lived at Mineral Point at the time when the note became due, and that the indorser lived .within eight ■miles of there, then a notice of non-payment given to the indorser four days or more after non-payment would not be reasonable notice.” The court declined giving the instruction in the form in which it was asked, but instructed the jury: “That in case of non-payment by the maker on the day of payment, the plaintiff could not recover unless he proved that he gave notice of the non-payment to the indorser as soon as, considering the situation of the parties, he reasonably could; but that the jury must be the judges from the circumstances of the case as proved, whether or not the notice was reasonable.”
    The jury returned a verdict in favor of the plaintiff for the amount of the note and interest, upon which the court rendered judgment.

      ParMson sued out a writ of error to reverse the judgment, and assigned the following errors in the proceedings below:
    1st. The court below erred in permitting the plaintiff below to be sworn as a witness.
    2d. The court erred in permitting the note to be read in support of the declaration.
    3d. The court erred in refusing to instruct the jury, as requested by the counsel for the defendant below, and in giving the instructions which it did. .

      Moses M. Strong, for plaintiff in error.

      1. The law only authorizes the party giving the notice to be sworn himself, in case the party notified fails to attend or refuses to be examined, and when the notice has been reasonable. In this case, the defendant was not present at the trial, and the notice was given to his counsel during its progress. This notice was not sufficient. The notice previously given to the plaintiff certainly did not authorize him to force himself as a witness in the cause against the will of the defendant.
    2. This note is an instrument under seal, and as such is not negotiable. The ordinary indorsement «does not authorize the indorsee to maintain an action upon it in his own name, either against the maker or indorser. The action of assumpsit can only be maintained on simple contracts, and a sealed instrument cannot be introduced to support a declaration in that form of action.
    3. If the court is asked to give a principle of law, applicable to the case, in charge to the jury, and refuses to do so, it is error. The court was asked to instruct the jury, that if a certain state of facts existed, the notice was not reasonable. This instruction the court refused to give ; but on the contrary, charged the jury, that they must judge whether the notice was reasonable or not, from the circumstances of the case. In both the refusal and the charge given, the court erred. The authorities upon the subject fully establish the principle, that when the facts are ascertained, whether the notice is reasonable or not, is a question of law for the court, and not one of fact for the jury. They also establish the point that, upon the facts in this case, the notice was not reasonable. Chitty on Bills, .509, 510, notes and authorities there referred to; Byles on Bills, 159; Tindallr. Brown, 1 T. R. 168; Darbyshire r>. Parker, 6East, 3, note; Lenox v. Roberts, 4 Pet. Con. Rep. 164, and note; Bank of Columbia v. Lawrence, 1 Pet. 581; Bush v. ■ 8wan, 9 id. 45; Dickens v. Bull, 10 id. 581.

      F. J. Dunn, for the defendant in error,
    cited Johnson v. Wilson’s Admr., ante, to the point that the sufficiency of notice to the indorser was a question of fact for the jury, and contended that such was the more reasonable rule. Chitty on Bills, 511, 518, note o ; Taylor v. Breden, 8 Johns. 172; and contended that the objection raised to the note sued on was not well founded. The note has no legal seal to it, and the indorsement has nothing purporting to be a seal. There are common counts in the declaration, and the finding of the jury may have been under some of them, as there was evidence in support of them, and a positive promise to pay was proven.
   Millee, J.

In the tenth section of the act entitled “an act supplemental to the act concerning testimony and depositions, approved February 19, 1841, it is provided that, in all actions or proceedings at law in civil cases, either party may give notice to the adverse party that he wishes to have said party sworn as a witness in such case; and if said adverse party shall not appear at the time of trial, or shall refuse to be sworn or to testify, or shall fail to take and produce his deposition as thereinafter provided, then the party giving such notice, if the notice shall be deemed by the court sufficient, may him self be sworn as a witness in such csuse The defendant gave the plaintiff notice to appear in court at the trial of the cause and testify. The plaintiff did so appear, and was willing to give evidence as a witness in the cause, when the counsel of defendant declined having him sworn. The plaintiff then gave notice to defendant’s counsel at the bar, and during the progress of the trial, that he deshed to have him, the defendant, testify in the cause, and when the defendant was called, and made no answer, the court admitted the plaintiff to be sworn and testify as a witness

This is a peculiar and novel statute, but the court must give to it its proper effect. The party is notified to appear to be sworn as a witness, and he must either be present and consent to be sworn and testify as a witness, or produce Ms deposition ; and in default thereof, the party giving the notice will be admitted as a witness. We are disposed to consider the notified party in the. same light as any other witness subpoenaed in the cause. If a witness is subpoenaed by one party and not called, the other party can call him. When a deposition is taken and filed, it becomes the property of both parties, and can be used by either party, on complying with the rules of the court. 8 Serg. & Rawle, 580. If the party shall produce his deposition, taken and executed according to the provisions of the statute and the rules of court, it can be read on either side in evidence. If the party notified shall appear in court at the trial in pursuance of notice, and is willing to give evidence as a witness, he may be sworn, whether the party who notified Mm calls him to the stand or not. It is not necessary for him even to call upon the opposite party, as was done in this case. In this there was no error.

The plaintiff, as indorsee of a negotiable promissory note, declared against defendant as indorser. The declaration set forth a promissory note and the indorsement thereof to the plaintiff by defendant, before due, with the usual averments of demand of payment and notice of non-payment. The paper offered in evidence was a note under seal; to the reading of wMch the defendant’s counsel objected, which objection was overruled and the testimony admitted. In this the district court committed an error. It was not proper evidence in support of the declaration. The variance between the note set forth in the declaration and the note offered in evidence, is very apparent.

The court charged the jury that, in case of non-payment by the maker on the day of payment, the plaintiff could not recover, unless he proved that he gave notice of the non-payment to the indorser, as soon, considering the situation of the parties, as he reasonably could, but that the. jury must be judges, from the circumstances of the case, as proved, whether the notice was reasonable. In this charge it is considered that the district court erred.

This note, being a note under seal, was not negotiable. 2 Binney, 154; 1 Dallas, 208. The seal stripped it of its negotiability, according to the principles of the law merchant ; and consequently the indorsement by the defendant did not vest in the plaintiff a legal right to sue in his own name. If then, the.plaintiff has no legal right by virtue of the indorsement to sue the maker in his own name, by what right can he sue the indorser Í The indorsement by defendant was not a legal transfer of the note; it was no assignment, but .merely an order or authority to the plaintiff to receive the amount of it from the maker. It never can be consistent with the intent of the parties, or with the law, that every man who puts his name on a bond is to be considered as a new drawer of the bond; and, if we stop short of that conclusion, the plaintiff cannot recover. The law is decided to be, that the mere indorser of a bond or a sealed instrument, is not liable in law to the indorsee. 1 Bay (S. C.) 400; Folwell v. Beaven, 13 Serg. & Rawle, 311. Nor does-such indorsement authorize the holder to insert any guarantee of payment over the indorser’s name. Nor will the indorser be liable on an allegation of a promise, unless it be clear and explicit, and clearly established by testimony.

In cases arising upon the indorsement of negotiable paper, the questions as to the sufficiency of the notice, and what shall constitute due diligence, when the facts are ascertained and determined, are of law, and cannot be submitted to the jury. On this point there is a conflict in the decisions, but the weight of authority is in favor of the principle here stated. In England the rule is settled in this way. It is so settled by the supreme court of the United States, which is the rule of decision for this court. Chitty on Bills, 509, 510, 514, 515, 516; 1 T. R. 168; 6 East, 3; Bank of Columbia v. Lawrence, 1 Pet. 581; Lenox v. Roberts, 4 Pet. Cond. Rep. 164; Bush v. Swan, 9 Pet. 45; Dickens v. Bull, 10 id. 581.

The case of Johnson v. Wilson, ante, was ruled exclusively, on the agreement of the parties, on the subject of demand and notice.

Judgment reversed.


author: Dunn, C. J.

text:
    Merrill vs. Low.
    1. Attachment — affidavit.—Where an attachment had been issued upon an affidavit, “ that the plaintiff had good reason to believe, and did believe, that the defendant was about fraudulently to remove his property, eowoey or dispose of the same, so as to hinder and delay, etc. Held, that the affidavit did not state any sufficient cause for issuing the writ, and that it was properly quashed. The word “franidulentty” qualifies the word “remove” only; and the words “hinder and delay” refer to the words “ convey or dispose.”

    2. Same.— An affidavit for an attachment should be so direct, positive and certain as to be free from question or doubt.
    3. Certificate.— The certificate of the officer that he is satisfied that the facts and allegations set forth in the affidavit are true, and that the affiant is entitled to a writ of attachment, is a sufficient indorsement of satisfaction.
    4. Return of writ.— A writ of attachment which commands the sheriff, that the property " so attached in your hands to secure, or so to provide, that the same may be liable to further proceedings thereupon at a term of that district court, to be holden,” etc., “so as to compel the defendant to appear and answer the complaint of the plaintiff, when and where you shall make known to the said court how you have executed this writ;” is made properly returnable within the meaning and intent of the statute.
    ERROR to the District Court for Dane County.

      Merrill sued out a writ of attachment against Low, upon his affidavit, stating, that Low was then “justly indebted to him in about the sum of $1,600, lawful money, over and above all legal off-sets, and that he has good reason to believe, and does believe, that said Low is about fraudulently to remove his property, convey or dispose of the same, so as to hinder and delay this deponent, and further saith not.”

      Upon, which affidavit was the following indorsement of satisfaction by the officer before whom it was made:
    “I hereby certify, that I am fully satisfied that the facts and allegations set forth in the above affidavit are true, and that the said affiant is justly entitled to his writ of attachment, ” and signed by a supreme court commissioner.
    The writ of attachment which issued, after the attaching part, went on to command the sheriff, that the property “so attached in your hands to secure, or so to provide, that the same may be liable to further proceedings thereupon at a term of that district court to be holden at Madison, on the second Monday after the first day of October next, so as to compel the said Gideon Low to appear and answer the complaint of the-said Henry'Merrill, when and where you shall make known to the said court how you have executed this writ.”
    At the return term, the defendant moved the court to quash the writ for the reasons stated in the opinion of the court.
    The district court quashed the writ and dismissed the suit, and Merrill sued out a writ of error.
    A. Botlcin, for plaintiff in error,
    contended that one of the causes for issuing the writ was stated in the very words of the law, and the portion of the affidavit, which is objected to, might be rejected as surplusage.

      •Julius T. Ciarle and Edward V. Whiton, for defendant in error,
    argued that the affidavit must be distinct and certain, and that nothing should be left to doubt or inference.
    The affidavit does not state any distinct ground for the writ. It is confused and uncertain. It charges that the defendant is about fraudulently to remove his property, but it does not state for what purpose or to what effect; also, that he is about to convey or dispose of the same so as to hinder and delay the plaintiff, but the fraudulent intent is not coupled with this allegation. The act about to be done, and the fraudulent intention of the defendant in doing it, should be so distinctly stated and so coupled together, that there could be no doubt in ascertaining the specific fact charged.
    The supreme court commissioner does not certify that he is satisfied that any particular fact exists, but only that the affidavit is true. The affidavit only states the belief of the party, and the certificate amounts to nothing more than that the officer is satisfied that the plaintiff believes as he has stated in his affidavit. The officer ought to be satisfied of facts, and not of mere belief, and his certificate, that he is satisfied of the truth of the affidavit, in general terms, is not sufficient.
    The statute requires all writs to be made returnable on the first day of the next succeeding term, unless the court shall otherwise direct. Terr. Stat. 200. This writ is not made returnable at all. The sheriff is not commanded to return the writ. At most, it is returnable to the term. generally, and not on the first day of the term, as the statute requires.
   Dunn, C. J.

This suit was originally commenced , in the district court for Dane county, by attachment issued on an affidavit of facts as cause for issuing the writ, with an indorsement of satisfaction thereon by the proper officer. In the court below, the defendant moved to quash the writ and dismiss the proceedings for these reasons, viz.:

1. “ Because the affidavit of said plaintiff, filed with the clerk of said court in this cause, is insufficient in this, that it does not state the existence of any particular fact which authorizes the issuing of a writ of attachment.

2. Because the affidavit is uncertain.

3. Because the certificate of William N. Seymour, as supreme court commissioner upon the affidavit, is insufficient, for the reason that it does not appear that the said Seymour was satisfied of the existence of any particular fact which authorizes the issuing of a writ of attachment.

4. Because the said writ of attachment is not made returnable according to law.”

This motion was sustained by the court below, and the writ was quashed and the proceedings dismissed. To reverse this decision a writ of error is prosecuted in this court.

The inquiry arises here, was there error in the decision of the court below in sustaining the motion to quash for the reasons assigned % This brings ns to the consideration of the reasons in the order in which they are presented. The first and second reasons urge the insufficiency and uncertainty of the affidavit. In Morrison v. Fake, ante, this court classed the cases in which an attachment is authorized to issue, by the act concerning the writ of attachment (Rev. Stat. 165), into six classes. The 6th is, “that such debtor is about fraudulently to remove, convey, or dispose of his property or effects, so as to hinder and delay his creditor: ” And the court said: “We find it to be practiced in the Territory, to set out .this cause in the disjunctive, as set out here, and we are not disposed to change it. We are not disposed to confine the party to the use of one of the words, “ remove,” “ convey,” or “ dispose,” but he may use one or all at his pleasure; also the words, “property,” or “effects.” In a case of fraud it may be difficult to obtain satisfactory information whether a man is removing or disposing of his property. Clearly, the party cannot set out two causes of attachment in the disjunctive. Both these points seem to be settled in 3 Watts, 144.”

The proceeding by attachment being a departure from the common law, and a violent remedy, the court in that case went as far in favor of the proceeding by attachment, as could be reconciled with any adjudications on the subject in former cases, and cannot go beyond the rule there laid down. If the affidavit in this case conformed to that rule, it would be sustained by the court; but upon examination, insufficiency and uncertainty are apparent on tbe face of the affidavit, in respect to the rule referred to. The affidavit is in these words: “has good reason to believe, and does believe, that the said Low is about fraudulently to remove his property, convey or dispose of the same, so as to hinder or delay this deponent. ” It is uncertain, and therefore insufficient in this, that according to the acknowledged rules of grammatical construction, the adverb, fraudulently, qualifies the word ‘£ remove 5 ’ only, and not the words “ convey or dispose ; ” and the words “ so as to hinder or delay this deponent,” refer to the words “ convey or dispose ” as their antecedent, and not to the words “,fraudulently remove /” thus presenting no sufficient and certain cause for issuing the attachment. For it will not be insisted that the words “about fraudulently to remove his property,” without the qualifying words, “ so as to hinder or delay this deponent,” would be a sufficient ground upon which to award the writ of attachment. Nor that the words “ convey or dispose of his property so as to hinder or delay this- deponent,” without the qualifying-word, “fraudulently,” prefixed, would be a sufficient ground for the same purpose. The affidavit in this respect should be so direct, positive and certain that upon a public prosecution on the same charge, supported by proof, the defendant could be convicted. There may be, and doubtless are, different opinions about the construction of the meaning- of that part of the affidavit quoted; but this is an argument against its certainty and sufficiency. It should be entirely free from any question or doubt.

We are decidedly of opinion that the district court did not err in entertaining the motion, quashing the writ and dismissing the proceedings on these grounds.

The third and fourth reasons in support of the motion to quash, relate to the sufficiency of the certificate of William N. Seymour, supreme court commissioner, indorsing satisfaction on the affidavit; and that the writ of attachment is not made returnable according to law.

The court is not called on to consider the merits of these objections as the motion must have been decided by the district court mainly on the first and second grounds assumed in its support. We have, however, examined the objections, and are of opinion, that the indorsement of satisfaction of itself, is sufficient. The satisfaction is of fact, and not of the legal sufficiency of the affidavit. We are also of opinion that the writ, although not in the usual form, is made returnable within the meaning and intention of the law.

Judgment affirmed with costs.


author: Miller, J.

text:
    Brown vs. Bicknell.
    1. Statute oe limitations. A plea of the statute of Imitations is a plea to the remedy; the statute is a mere municipal regulation, formed upon local policy, and a foreign statute cannot be pleaded in our courts.
    2. Exceptions to the Statute.—Where the debtor is out of the Territory at the time when the cause of action accrues, the suit may according to the 24th section of the statute of limitations, be maintained here within the time limited, after he comes into the Territory.
    3. Same.—Where the maker of a promissory note resided out of the Terri. tory at the time when it became due, and afterward removed into the Territory, although the note had been due more than six years, it is not barred by the statute of limitations unless six years have elapsed since the maker came into the Territory before the commencement of the action; but to x>revent the statute from running in such case, the debtor must have been out of the Territory when the cause of action accrued.
    ERROR to the District Court for Rode County.

      Brown brought an action of assumpsit against Bicknell, upon the following promissory notes and drafts drawn in Providence, Rhode Island, viz. :
    One note dated 15th February, 1833, due at six months;

      One dated 21st March, 1833, dne at four months;
    One dated 18th May, 1833, due at four months;
    One dated 21st May, 1833, due at sixty days;
    One dated 22d June, 1833, due at sixty days;
    A draft accepted by defendant, dated 22d April, 1833, payable sixty days after date ;
    A draft drawn by defendant, dated 7th June, 1833, payable on presentation.
    The action was commenced in 1841. The defendant pleaded the general issue, and gave notice that the action was barred by the statute of limitations. Prom the bill of exceptions it appears that the notes and drafts sued on, were executed at Providence, in the State of Rhode Island, and that when they became due, the defendant was out of the Territory. It also appears that the defendant came into the Territory for the first time, in July, 1837, about four years before the commencement of the suit. On the trial, the court below instructed the jury, at the request of the defendant, that the 24th section of the act in relation to the time of commencing actions was not applicable to the case, and to disregard it. Under the instructions of the court, the jury returned a verdict in favor of the defendant. A motion was made for a new trial and overruled, and judgment rendered on the verdict.

      H. IF. Wells, for plaintiff in error,
    argued that the statute of Wisconsin was similar to those of New York and Massachusetts upon the same subject. The decisions of the courts of those States show conclusively, that under the facts of this case, the statute of limitations is no bar to the action. 2 Rev. Stat. N. Y. 225; Rev. Stat. Mass. 700, § 9 ; Buggies «. Keeler, 3 Johns. 263; Byrne v. Crowninshield, 1 Pick. 263; Dwight v. Clark, 7 Mass. 515 ; White v. Bailey, 3 id. 217. See also Story’s Conflict of Laws, 482, 488; Bell v. Morrison, 1 Pet. 351.

      Ed/ward V. Whiton, for defendant in error:
    But for the exception in the 24th section of the act, the action would be clearly barred, and there would be no controversy in the case. The principle sought to be established by the plaintiff will go thus far; a debt may be contracted abroad and become forever barred by the limitation of a foreign State, but if the debtor comes into the Territory at any remote period, the demand may be revived against him and recovered. We contend that the 24th section was intended to apply to contracts made in the Territory, or contracts made abroad in reference to the laws of the Territory to be here executed; and that this construction should be adopted by the court. The courts in modern times view statutes of limitations much more liberally than formerly, and they often regret the constructions given by the old decisions. Bell v. Morrison, 1 Pet. 360; Buggies v. Keeler, 3 Johns. 265.
    Our statute is not precisely the same as those of New York and Massachusetts, and this court is not bound by the decisions in those States. The statute of limitation is a local municipal regulation, founded upon the policy of the State, and the decisions upon it violate no principle of justice, however they may be given.
   Miller, J.

The plaintiff in error brought suit against the defendant in error on certain promissory notes, in the district court for the county of Rock, dated at Providence,- Rhode Island, on the 15th day of February, 1833, and to become due in six months thereafter; and it was made to appear by the pleadings and sustained by the evidence, that the defendant came into the Territory about four years before the time when the suit was brought. It was claimed on the part of the plaintiff, that, under the 24th section of the act concerning the time of commencing actions, which provides, that “if at the time when any cause of action mentioned in the act shall accrue against any person, he shall be out of the Territory, the action may be commenced within the time therein limited therefor, after such person shall come into the Territory,” he was not barred of his recovery. It is very clear, that if it were not for this provision in the statute, this claim would have been barred in six years.

The plea of the statute of limitations is a plea to the remedy. 13 Pet. 329; 6 Wend. 475; 4 Cow. 528, 530; 1 Gallis. 371; 2 Mason, 351; 14 Pet. 141. A statute of limitation is a mere municipal regulation, founded upon local policy; and a foreign statute cannot be pleaded in our courts. 3 Johns. 263; 13 Pet. 312. The disability which entitles a party to the benefit of the above provision must exist when the right of action accrues ; that is, when the right of action accrues the debtor must be out of the Territory. 5 Cow. 74; 14 Johns. 338; 9 Cow. 296; 5 id. 231; 4 id. 508; 2 id. 626; 17 Johns. 511. Under similar provisions in the statutes of limitation in force in the States of New York and Massachusetts, the courts of those States have decided, that in cases of debts accrued against persons out of those States, who afterward came into those States, the statute of limitations could not be pleaded in bar until the said debtors were in the said States for the term of six years. Dwight v. Clark, 7 Mass. 515; White v. Bailey, 3 id. 271; Byrne v. Crowninshield, 18 id. 263; 3 Johns. 263; Story’s Conflict of Laws, 482 to 488; 1 Pick. 263. In the case of Bulger v. Bache, 11 Pick. 36, where a debt was contracted in a foreign country^ between subjects thereof, who remained there until the debt became barred by the statute of limitations of such country, it was decided that the statute of limitations of Massachusetts could not be pleaded in bar to an action upon the debt, brought within six years after the parties came into that State. v

The judgment of the district court of Eock county, which was in favor of the defendant, must be reversed.