author: Wi-nxoisr, J. Hubbell, J.,

text:
    Yates v. Martin.
    1. Agreement — statute op pbauds. — An oral agreement, to execute a written agreement for the sale or conveyance of land, is not such an one as can he enforced, as the thing which was to have been promised to he performed hy such written, agreement would he within the statute of frauds.
    2. Same. — If an oral promise to make a written agreement, touching an interest in lands, is broken hy a refusal to execute it, a suit cannot he maintained to recover damages; otherwise, if an oral agreement had been for the execution of a written agreement which,- if oral, would not he within the prohibition of the statute.
    (1 Chcmd. 118.)
    ERROR to tbe late District Court for Milwaukee County.
    Tbe plaintiff in error brought an action of assumpsit for tbe recovery of damages for tbe breach of a verbal agreement. Tbe substauce of tbe agreement declared upon, and stated in several counts in tbe declaration, was as follows: On tbe eleventh day of December, 1846, at Milwaukee, in consideration that Yates, tbe plaintiff in error, at tbe special request of
      Martin, tbe defendant in error, would then and there agree to pay to Martin the sum of ten dollars, Martin undertook and promised Yates to sign his name to a certain agreement in writing, which Yates, at the special instance of Martin, had drawn and written, and that Martin would then and there deliver the said agreement in writing, so signed as aforesaid, to Yates, which agreement in writing is as follows, to wit: “ For and in consideration of ten dollars to me in hand paid, I hereby agree to accept of $5,000, above cost, of all the real estate owned by me in Milwaukee, and the furniture in my house ; one-half down, and the other half in one year, secured by mortgage on the premises. This offer to stand open for tweñty-four hours. Friday, 7 u. m., Dec. 11, 1846.”
    The declaration alleged that Martin refused to sign the written agreement, and contains sufficient averments to sustain the action, provided the basis on which it is founded is adequate for that purpose. Martin demurred generally, and Yates joined in demurrer.
    The demurrer was argued before the district court and was sustained, and judgment was given for the defendant, and the cause was brought into this court by writ of error.

      8. Sea, for plaintiff in error,
    made several points in support of the cause of action as specified in the declaration, amongst which were:
    1. That it was the natural right of any person to contract for any subject-matter or thing at his option unless it was in conflict with legal prohibition; and that in such a case the court could not avoid giving to such a contract its full operation and effect; that the contract in question was such that it could be enforced, unless it was inhibited by statutory provision. To this point he cited 2 Black. Com. 446 ; Cow. Tr. 56; Chitty.on Cont. 291; Comyn’s Dig. Covenant A. 1; Chitty on Cont. 866.
    2. That a contract to make a contract is a legal and enforceable agreement which courts of law will recognize. Chitty on Cont. 866 ; 39 Eng. C. L. 408 ; 19 Wend. 502 ; Comyn on Cont. 2.
    3. That this agreement was not within tbe statute of frauds, and as defining tbe principles of that statute, be cited Sug. on Yend. 95, 96, 97, 131 ; Chitty on Cont. 66 ; 5 Johns. 275.
    4. To show that tbe agreement in this case was merely an agreement to malee an agreement, and hence not within the statute of frauds, he cited 8 Met. 435 ; 4 id. 406 ; 9 id. 435 ; 17 Pick. 538 ; 5 Hill, 112 ; 6 Wend. 464 ; 1 Binney, 454.
    5. To show that if the contract in writing had been signed by Martin, Yates would have been entitled to all the damages that would ensue in case of breach thereof, and that having promised to execute the same, and having accepted the consideration upon which he agreed to execute it, he was hable in law for damages, and those damages would have been commensurate to the benefits which would have resulted if the contract had been carried into effect, he cited Chitty on Cont. 389 ; 46 Law Library, 31, 34, 47 ; 9 Cow. 274 ; 2 Denio, 133; 19 Wend. 464; 26 id. 436 ;■ 5 Yin. Ab. Cont. 528. '

      James 8■ Brawn and J. B. Arnold, for defendant,
    argued that the agreement to execute the agreement in question was within the statute of frauds, inasmuch as if the supposed agreement had been signed it would have been within the provisions of that statute, and to this point cited 2 Story’s Eq. 93 ; R. S.Wis. 164. Thatif the contract alleged to have been agreed to be signed, had been signed, it might have been enforced on the chancery side of the court, if free from impeachment by the statute of frauds, but that it being clearly within the statute could not be enforced. Sug. Yend. 138, 140, § 8; id. 126, § 24 ; 11 Mass. 342. In the case last cited, a deed was executed and delivered, under an oral agreement of the adverse party, to execute a bond of defeasance at a future day. The defeasance, if executed, would have defeated an absolute title. It was in that case held that the agreement was within the statute of frauds. See also, to the same point, 5 Mass. 183 ; 6 id. 460. That the agreement, to be operative, should be signed by both parties ; and to this point was cited 5 Bos. & Pul. 252 ; Chitty on Cont. 896 ; Sug. Vend. 119. That, in order to ascertain and define what was meant and intended by the parties, all then' acts relating to the matter of the contract were to be considered and regarded. That an action brought upon an offer of the sale of chatties, there being no consideration, there was no mutuality. 3 Term, 653 ; 4 Bos. & Pul. 252. That the contract was not enforceable in law because it was not subscribed or to be subscribed by both parties, and to this point was cited 3 Johns. 418 ; 6 Wend. 103 ; 12 Johns. 190.
   Wi-nxoisr, J.

The declaration in this case contains a number of special counts, alleging the same cause of action in different forms, to which there is a general demurrer. The contract declared upon is a parol agreement, and is substantially as follows : “ That MaHin, on the 11th day of December, 1846, at Milwaukee, in consideration that Yates, at the special request of Martin, would then and there agree to pay him the sum of ten dollars, undertook and promised Yates to sign his name to a certain agreement in wilting, which Yates, at the special request of Martin, had drawn and written, and that he would then and there deliver the agreement in wilting so signed as aforesaid to Yates, which agreement hi wilting is as follows : 1 For and in consideration of ten dollars to me in hand paid, I hereby agree to accept of $5,000 above cost, of all the real estate owned by me in Milwaukee, and the furniture in my house, one-half down and the other half in one year, secured by mortgage on the premises ; this offer to stand open for twenty-four hours. Friday, 7 p. m., Dec. 11, 1846.’ ”

The declaration alleges that Martin refused to sign the written agreement, and contains the necessary averments to charge Mm if the contract declared upon is of such a nature as to entitle Yates to recover.

The district court of Milwaukee county sustained a demurrer to the declaration, and judgment was thereupon rendered against Yates, who brings the case here to reverse the judgment. Several objections were taken to the declaration by the counsel for ihe defendant on the argument; one is, that the parol agreement sued upon is void, for the reason that the written one would have been utterly worthless and void for uncertainty and for want of mutuality if it had been executed ; another is, that admitting the written agreement would have been of any force or effect, it would have conveyed an interest in land, and that consequently the parol agreement to execute it is within the statute of frauds, and'therefore void. It is clear, that if the written agreement would have been worthless for all purposes, the parol agreement,to make it is not of such a nature as will support an action, but tMs case can be disposed of without inquiry into this objection. I shall therefore confine myself to the consideration of the effect of the statute of frauds upon the contract.

Our statute differs somewhat from the .English one, and the 8th section of title 1st, wMch is principally relied on by the defendant in error, is as follows :

“ Every contract for the leasing fora longer period than one year, or for the sale of any lands, or interest in lands shall be void unless the contract or some,note or memorandum thereof, expressing the consideration be in writing and be subscribed by the party by whom the lease or sale is to be made.”

The defendant contends that the parol, contract declared upon is a contract for the sale of an interest in land witMn the meaning of the statute, if it has any validity, because the written one would, if it had been executed by the defendant, have conveyed to the plaintiff the right or power to purchase the real estate described in it. On the other hand, the plaintiff contends that tbe written agreement or contract would, if it had been executed by the defendant according to the parol agreement, have been a mere offer on his part to sell the property on the terms mentioned in the agreement, which offer the plamtiff might or might not have accepted, and could not have the effect to convey any interest in land within the meaning of the statute. The question before the court arises upon the consideration of the nature of this agreement, for, if in case it had been executed, it would have conveyed any legal or equitable interest in the real estate mentioned in it to the plaintiff; the agreement declared upon, which is an agreement to make the written agreement, is an agreement for the sale of an interest in land, and therefore within the statute. I am of the opinion that the written agreement would have conveyed to the plamtiff an equitable interest in the real estate mentioned in it, if it had been executed according to the parol contract set out in the declaration, and would have been valid for any purpose. Sug. Vend. 126, 138; 4 Mass. 488; 5 id. 133; 6 id. 460; 11 id. 342.

I can see no difference, so far as the question before the court is concerned, between this written agreement and a bond conditioned that if the plamtiff would pay a certain sum of money by a certain time, the defendant would convey the legal title to the real estate in question, for it can make no difference whether the obligation is to convey the title to or an interest in land merely, as parol contracts for the sale of-either are equally within the statute.

It cannot be doubted, I think, that such a bond would have conveyed to the plamtiff an interest in land, as it would have given him the power to compel the defendant to convey the land. It is equally clear that the plamtiff would have had the same power if the defendant had executed the written contract; that the plaintiff might not have chosen to ’avail himself of it is true, but the obligation to convey would have been as binding on the defendant, as though the plaintiff had himself been bound to pay the stipulated price of the land, and the latter would have had an interest in the land as completely vested in him as though he was thus bound.

It can make no difference that the obligation of the contract was all to be on the part of the defendant; his interest in the subject-matter of the contract would be affected as much as though both parties were equally bound. Such being the nature of the agreement which the defendant agreed to execute (if it would had had any force or validity at all), there can be no doubt as to the nature of the agreement to make it. It must be considered a parol agreement to sell an interest in land, and consequently within the statute. I have considered the written agreement as though it might have been enforced had the defendant executed it. It was contended in the argument for the defendant, that it would have been entirely void for the reason that it was vagué, uncertain and without mutuality, and that the parol agreement sued on was consequently void also. I have not thought it necessary to consider that part of the case, and, of course, no opinion upon it is given.

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

Hubbell, J.,

dissenting. There is but one question in this case: Whether the contract shed upon is within the statute of frauds ?

Yates sues Martin for damages for the breach of a verbal agreement. The general demurrer admits the agreement as set forth in the declaration. That agreement was, that Martin, in case Yates would pay him ten-dollars, would sign and deliver to him a written instrument of which the following is a copy : ■ •

“ For and in consideration of ten dollars to me in hand paid, I hereby agree to accept $5,000, above cost, of all the real estate owned by me in Milwaukee,-and the furniture in my house, one-half' down and the other half in one year, secured by mortgage on tbe premises. This offer to stand open for twenty-four hours. Friday evening, 7 p. m., December 11, 1846.”

Tbe sole point is, whether • this instrument, had it been executed and delivered, would have given Yates “any interest” in Martin's “lands?” The statute of frauds of this state declares every contract for the sale of any interest in lands void, unless it is in writing ; and the better opinion seems to be, that a contract for a contract is within the statute, provided the second contract conveys any interest in land. And this interest is admitted to be the same, whether it is present or future, legal or equitable, direct or contingent.

If, therefore, the writing to which Yates became entitled under his verbal agreement, conferred per se any such interest, the verbal agreement was void, and this action cannot be sustained. If, on. the contrary, that writing by itself, as it would pass from the hands of Martin to Yates, conveyed pro-prio vigore no such interest, then this action is well brought.

What then would that writing convey ? It was a written offer by Martin to sell his real and personal estate for a fixed price. It was no better and no worse for having been purchased by ten dollars paid by Yates, except that such payment would enable Yates to enforce it, should he elect to do it, and should Martin refuse. But was it an instrument which any holder could enforce as it stood ? Certainly not. Without a tender of money or a written acceptance on the part of the holder, Martin would not be bound to fulfill it. It gave no present claim on Martin's land, because something must be done by the holder to entitle him to enforce it. It gave no future claim, because there was no future event then certain to happen which would make it available. As it came from Martin, pursuant to the verbal agreement, it was as unavailable in equity as at law. It conveyed no interest, present or future, equitable or legal, positive or contingent. It was a naked offer to sell at a fixed price. Yates might or might not accept it. Until he did accept, Martin could no more enforce it than a blank paper. It was no contract until some further act was done by Yates, and that act Yates was not bound to do. Martin had no interest in it which he could enforce in law or equity, and Yates had but the option of doing some future act by which he would acquire such an interest. It was naked paper in the hands of Yates, blank paper to both him and Martin until something was done, and that something Martin could not compel, and Yates was at liberty to refuse. It was in no sense, therefore, the conveyance of any interest or a contract for any interest: it gave to Yates the naked possibility by some future act on his part, which he might perform or decline, to acquire an equitable interest in Martin’s estate. This was its whole scope and meaning, its entire purport and effect. If it can be said that Yates acquired an interest in Martin’s property by such an instrument, then every man has an interest in his neighbor’s land when he knows its market price and has the money to buy, because he has a possibility by a single act of his own to get the property at a given price. Every man who advertises his farm for sale in a public newspaper, stating the terms, gives to all the world a similar interest in his land, because, by complying with the terms, they will get a title, or by accepting the terms they will get a right to the title. The upshot of the matter, as I understand it is, Yates wanted to get Martin’s terms of sale ; Martin agreed to give them in writing for ten dollars. Yates tendered the money and Martin refused to fulfill. Had the agreement been to publish the terms in a newspaper, in consideration of ten dollars, it would have been the same. The terms, when published, would have given all the world the right to comply, and the consideration paid by Yates would have been sufficient to bind Martin. We are not to inquire into men’s motives in malting agreements or paying their money. Yates may have wanted this writing for one purpose, Martin may have supposed it for another ; no fraud is alleged, and the consideration is sufficient to bind the bargain. Yates may not have wished to comply with it. He may have wished to use it in some other transaction. It is enough for us to know that he wanted it, and had some trouble, expense and loss in preparing on his part to fulfill the verbal agreement — the agreement for the writing. Martin made the agreement, as appears by the declaration, and broke it, and damages are alleged as the consequence of the breach. The demurrer admits the aver-ments of the declaration ; it seems to me there is no escape for Martin under this demurrer. What defense he may have on the trial; what value Yates can fix upon the writing; what amount of damages, more or less, he may be able to prove he sustained by reason of not obtaining the writing, is for another tribunal. This court cannot say there was no damage, much less that there was no breach; and, as to the contract, I think that it was legal and might be enforced, not being within the statute of frauds by any possible correct construction.

To determine this case there is no occasion to go back to the books or to the courts. It all depends upon the paper writing which was the object of the verbal agreement. We all can see what that would have been good for. Any well informed business man can tell what could be done with it, as well as the most learned judge. If Martin could not sue on it or enfoxce it; if Yates had the right to accept it or let it alone; if no possible future event could make it available to either party unless Yates exercised a volition upon it and did some act to make it binding, then it is as certain as any mathematical proposition that, as it came from Martin, as it agreed for in the verbal contract, as it should have been delivered to Yates, it conveyed no interest in land, present or future, equitable or legal, direct or contingent.

These are my views of the case ; and I think the judgment of the court below ought to be reversed ; but my brethren differ from me, and the judgment must remain.


source: Caselaw Access Project

author: Stow, C. J.

license: Public Domain

text:
    The State ex. rel. Bond v. French.
    1. Statute — coitstitutioh-. — The act of August 21,1848, providing for the holding of general and special elections, is to he construed not only by the words of the enactment, but by the objects in view and in accordance with the constitution.
    2. Same. — -The constitution having provided that general elections should beheld on, etc., in each year, but failing to specify what officers should then be elected, it was competent for the legislature to provide how judges of probate might be chosen at such elections.
    3. Coiístitutiom- — judge oe probate.' — A judge of probate, is not a judge within the meaning of the constitution prohibiting the election of judges within thirty days of a general election, and may therefore lawfully be elected at a general election.
    (1 Ghana. 130.)
    MANDAMUS. This was a proceeding by mandamus by tbe relator to test the validity of bis election as judge of probate of the county of Racine.
    The relator received the greatest number of votes at the general election in 1848, for that office, and the respondent was the incumbent of the office at the time of the election of the relator ; and at the time at which the relator would have been entitled to assiime the office, if duly elected, the respondent refused to deliver to the relator the books and papers, etc., pertaining to the office.
    Two questions were involved in this case. First, whether the election of that officer was provided for by the act of the legislature of August 1st, 1848 ; and, second, whether a judge of probate could be elected at or within thirty days of a general election.
    The facts were presented by a stipulation between the litigant parties.

      Jas. S. Broum, Attorney-General, and Bond, for relator.

      A. G. Chaifteld, for respondent.
   Stow, C. J.

The relator received a majority of votes for judge of probate of Racine county, at the late general election, and has since taken the official oath. The respondent was the judge of probate of the county at the adoption of the constitution, and still claims to be so, and refuses to deliver the books 'and muniments of the office. To compel this delivery a 'mandamus is now applied for. No objection is made to the form of proceeding, and it.is understood that both parties are desirous of having the whole matter disposed of on this application.

Two questions are presented in this case: 1. Was the election of judges of probate at the late general election, in November, provided for by the act of August 21, 1848 ? 2. Can a judge of probate be elected at or within thirty days of a general election ?

These are questions of the gravest character. They involve the construction of a law under which a large proportion of the administrative officers of the state are now acting, and the constitutionality of an election hi which all our citizens participated.

The construction of the act to provide for the holding of general and special elections, approved August 21, 1848, must be determined like other statutes, not only by its own words, but by a reference to the proposed object of the legislature in passing it, and the subject of legislation, and, hi this case, by reference to the constitution. The seventh section of the constitutional schedule provides, that “ all county, precinct and town officers shall hold their respective offices until the legislature shall, in conformity with the provisions of the constitution, provide for the holding of elections to fill such offices.” The first section of the thirteenth article of the constitution provides, “that general elections shall be holden on the Tuesday succeeding the first Monday of November in each year.” This provision, of itself, was ineffectual, inasmuch as it did not designate what officers were to be elected at the general election; and it required, therefore, legislative action to make it operative. And the question now is, whether the provisions of the act tinder consideration are sufficient for this purpose. We think they are. The first section of title 2, article 1, of the act, declares “ that general elections are such as are held at the same time in all the counties of the state, for the election of all or a part of the following officers : governor, lieutenant-governor, senators, members of assembly, clerks of the circuit courts, sheriffs, registers of deeds, district attorneys, state superintendént, judges of probate, clerks of the board of supervisors, coroners, secretary of state, treasurer, attorney-general, representatives in congress and electors of president, and all other state and county officers not herein enumerated or otherwise provided for, and shall be held on the Tuesday succeeding the first Monday of November in each year.” Now, what is this but re-enacting that part of the constitution which regulates the holding of general elections, and specifying what officers, in addition to those named in the constitution, shall be elected at the general election ? The constitution had fixed the time of holding these elections, and provided that the governor and state officers should be elected at them, but left to the legislature to determine what other officers should be also then elected : and this it has very clearly done by the section recited, unless the awkward insertion of the words “ora part ” renders the whole section so uncertain and indefinite as to make it absolutely unintelligible, and therefore void. We cannot concede to these words this destructive potency. They are to be regarded as merely providing that such part of the enumerated officers as hold by an annual tenure should be elected at each general election, and that those of a longer tenure should be elected at such general elections as vacancies occurred ; thus saving the legislature from the apparent folly of attempting to provide for the annual election of-governor, members of congress and others, as to the duration of whose offices it had no authority. We think this the obvious meaning of the act, and the proper construction of it according to well-established rules of construing statutes. But, did tbe matter admit of a doubt in the first instance, that doubt should be regarded as removed by the action which has been had under this act. While this court will never allow its judgments to be influenced by popular opinion, the united understanding and action of the whole state in a matter of great public interest is a guide that any tribunal may safely follow. It was by virtue of the law now under consideration that our late general election was held. In that election all our citizens participated, voting for their favorite candidates for, judges of px-obate, sherifls, coroners and other officers, the right to elect whom depended on the same statute, and whose election was obnoxious to the same objections ; and yet it is believed that, of our forty thousand electors, not one refrained from voting for these officers on account of a belief or a suspicion that their election was not authorized. Our presidential electors were chosen by virtue of this same provision, and yet, has it occurred to any one that their votes ought to be rejected by congress, and the state disfranchised, because they were not legally elected ? We apprehend not.

The other question, and perhaps the most important one, is, can a judge of probate be elected at or within thirty days of a general election ?

In deciding this question, our only guide.is the constitution., in construing which we are to be governed by the same general rules of intei’pretation which prevail in relation to statutes. Now, who, in this comxection, are meant as judges ? Clearly, those high judicial officers already mentioned, and whose election had been previously provided for in the same article ; those officers known in legal, as well as common parlance, as judges; and judges of probate, we conceive, are not of this number. It was argued, ho wever, on the part of the respondent, that the words “a judge or judges” are broad enough to include judges of probate, and that, there being no express exception of them, we are bound to apply the designation “judge” to tbem, because tbe constitution uses this word as a part of their official title. If this be so, it necessarily follows that all officers who are, for any purpose, made judges by the constitution, are judges within the provision under consideration ; a construction which would prohibit the election of senators and assemblymen (who are judges of the election of their own members) at a general election — a proposition that no one would probably venture to advance. Again, by a similar process of reasoning, it might be contended that the judges of the supreme court, which, after' five years, the legislature is authorized to establish, might be elected at a general election, because, in the constitution, they are not called judges, but a chief justice and associate justices. And yet it is presumed that no person can entertain such an idea.

We are therefore of opinion that the relator was duly elected judge of probate of Racine county, and that he is entitled to the office. A peremptory mandamus is awarded accordingly.


author: Hubbell, J.

text:
    Brunson et al. v. Burnett et al.
    1. Administration — efíect of gbant of lbttees. — It is irregular for a judge of probate to grant letters of administration on an intestate’s estate to persons not the next of kin, until after the statutory period shall have elapsed after the intestate’s demise. The acts of parties thus irregularly appointed cannot legalize the appointment, nor estop or prevent the officer who made it from revoking or annulling the authority created hy it.
    2. Probate courts. — Probate courts are as truly as guy other tribunals the offspring of the common law, and though their powers were exercised by ecclesiastical tribunals, yet they have been yielding to the modes and principles of the common law, as successive statutes have been passed relating to their powers and duties. Although their proceedings and acts are mainly prescribed by statute, yet that does not divest them of the powers and functions of a common-law court, except in so far as such powers and functions are abridged, regulated and controlled by such enactments. In all else they possess the powers and attributes of a common-law court.
    3. Pbobatb court — review.—A probate court has jurisdiction to review, correct and annul its own orders and process where they are found to conflict with statutory enactments, as an incident of the general powers of that court. In re Fisher, 15 Wis. 511; Waters v. Stiekney, 12'Allen, 1; Soleten v. Meadows, June term, 1873.
    4.. Nuncupative wills. — -In order to entitle a wimewpative will to probate, all the provisions of the law permitting and regulating such wills must be strictly complied with. Dawson’s Appeal, 23 Wis. 69.
    (1 Ohand. 136.)
    ERROR to tbe District Court for Grant County.
    Tbe case was this : After tbe death of Tbomas P. Bur nett, which occurred on the fifth day of November, 1846, and on the eighth day of the same month the plaintiffs in error applied to the judge of jirobate for the county of Grant for the appointment of commissioners to take charge of the property of Burnett, and they were so appointed by such 'judge. On the sixteenth day of the same month the same persons applied, on their own petition to him, for letters of administration upon Burnett's estate, alleging in their petition that he had died intestate ; and on that day they were appointed to that office, and entered upon the performance of the duties thereof, and so continued until the twenty-sixth day of January, 1847.. On the last mentioned day those letters were revoked by the judge of probate, upon the petition of the defendants in error, upon the ground that they had been improperly issued. From this order the plaintiffs in error appealed to .the district court of the county of Grant. The court affirmed the order made by the judge of probate, and from the last mentioned order and decision the plaintiffs brought the case hito this court by writ of error.
    Various exceptions were taken to the ruling and decisions of the district court, on the hearing before it, upon the appeal from the probate court, the most important of which are stated in the opinion of this court.

      Orawford, & Brunson, for tbe plaintiffs in error,
    insisted that tbe judge of probate bad no power to revoke tbe letters of administration granted to tbe plaintiffs in error, or to obange or modify orders judicially made by bim, and cited to that point, 3 Wend. 268, and tbe Rev. Stat. Wisconsin relating to tbe powers and duties of tbe judge of probate.
    They also claimed that, inasmuch as tbe letters of administration were issued upon tbe basis that Burnett bad made a nuncupative will, there was no power vested by law either in tbe court of probate or in tbe district judge to revoke such letters.

      Mills <&, Lakin, for tbe defendants in error,
    insisted that courts of probate bad power to correct errors made by them, and to revoke letters of administration improvidently or illegally granted by them, and to this point cited 1 Petersdorf, 56 ; Toller’s Executors, 125, and note; 4 Serg. & R. 201; Rev. Stat. 310.
    They also msisted that the evidence given of tbe making a nuncupative will was wholly insufficient to establish it.
   Hubbell, J.

This case comes before us clothed with painful interest. Tbe untimely fate of tbe decedent, whose estate is sought to be administered upon, not less than tbe unhappy difference which arose in regard to its management so soon after bis death, are well calculated to admonish us of tbe uncertainty and worthlessness of earthly possessions.

Tbe members of this court bold in cherished recollection tbe character and public services of tbe late Thomas P. Burnett. His high standing as a member of tbe bar, bis position as reporter of tbe late supreme court, his ability and influence as a legislator and statesman, and especially Iris amiable private character, have induced a more than usually careful examination of this case, coupled with a deep anxiety to decide it in accordance equally with tbe principles of justice and law.

The conclusions to which we have arrived are now to be announced. Thomas P. Burnett departed this life, at his own residence, in the county of Grant, the 5th day of November, 1846, leaving a wile, who survived him only a few hours, and two infant children, who are still living. He had no other kindred within the territory of Wisconsin. His personal and real estate were ample to pay the charges upon it and leave a very considerable surplus. On the 8th of November following, it having been represented to the probate court that the estate was in a condition to suffer waste, that court appointed Alfred Brunson and Henry Patch., the father and uncle of the late Mrs. Burnett, commissioners to take charge of the property. On the 16th day of the same month, the same persons, on a petition presented by themselves to the same court, were appointed administrators of Thomas P. Burnett’s estate.

The last appointment was made from no new suggestion hi regard to the condition of the property or of the parties interested therein, and it would seem to us to have been made without necessity and without the > authority of law. No notice appears to have been given to the next of kin, as the statute requires, and the thirty days, within which it was the absolute right of the next of kin to appear and claim letters of administration, had not expired. This appointment was, in the highest degree, irregular, though not perhaps entirely void; it was therefore the duty of the judge of probate at the earliest day possible to correct the error'; if he had the power to do so.

The letters were continued in force, and the administrators acting under them made and filed an inventory and performed various other official acts until the 26th day of January, 1847, when they were revoked. The order of revocation was made on the petition of William Burnett, the brother, and Joseph H. D. Street, the husband of a sister of the deceased. A full and careful examination of the rights of the parties and of the power of the court, in respect to this proceeding, appears to have been had by the judge of probate, who acted after the fullest consideration, and after hearing learned and able counsel upon the subject. The • decision made by him was afterwards, on appeal, affirmed by the late chief justice of the territory, as presiding judge of the district court of Grant county, and that decision is now brought in review before this court.

The granting of letters, as we have before seen, to Brunson and Patch, was irregular, and the first question which demands consideration is, whether the judge of probate had power and right to revoke them. It was strenuously urged in argument that this officer, acting under a special and limited jurisdiction, and being in fact the mere creature of the statute, had no right or authority to review or reverse his own acts. To a limited extent only is the assumption on which the argument rests well founded. Probate courts are only, in a qualified sense, the mere creatures of the statute. They are, as truly as any other judicial tribunals, the offspring of the common law. They existed in substance in England before the usurpation of the ecclesiastics snatched from the crown this rightful portion of its authority as the fountain of justice, and changed their form and mode of proceeding. And ever since they fell into the hands of the church, they have been yielding to the modes and principles of the common law, as successive statutes have been called into existence by the necessities of the case to protect the liberty and property of the British people. The statutes relating to these courts are therefore the instruments employed to restore them to their original character rather than the creative power which conferred their jurisdiction. In England the ecclesiastical courts have always exercised the power of revocation. Comyn’s Dig., title, Administrator, B. 8 ; 1 Salk. 38 ; Bacon’s Abr., title, Administrator. And in that country, as in most, if not all, the states of the Union, they are courts of record, either by express statute or immemorial usage. In the territory of Wisconsin the right to revoke or reverse orders entered in tbe course of probate proceedings seems to have been veiy generally exercised, though it does not appear to have received the direct sanction of the higher courts. The authority must be regarded as incident to the general powers of the court, and indispen- ■ sable to a right exercise of those powers, otherwise great inconvenience would arise from the necessity of appeals to a higher court to set aside orders of an interlocutory character, frequently arising in the course of administration, and in regard to which the probate judge may be fully satisfied of his error. Such a power, though not expressly granted by the statutes of Wisconsin, is fairly inferable from the clause hi the administrator’s bond, required to be given by section 23, pages 301, 302, which is as follows: “ And if it shall hereafter appear that any last will and testament was made by the deceased, and the executor or executors therein named do exhibit the same into the court of probate, etc., if the said-, within bounden, being thereunto required, do-render and deliver the said letter of administration, etc., into the said court, then the above written obligation to be void, etc.”

If, therefore, there was a will made by the deceased, Thos. P. Burnett, capable of being proved, and the same had been exhibited in the probate court by the executors, and allowed and approved accordingly, it would have become the duty of the court, by legal inference and from the necessity of the case, to revoke the letters first granted.

This brings us to another question raised and urged by the plaintiffs in error, and far the most delicate and difficult to which our attention is drawn, to wit: “Whether the evidence taken before the judge of probate, which fully appeal’s in the bill of exceptions, shows that the deceased, during the last day of his life, made and published a nuncupative will.

Nuncupative or unwritten wills were known to both the common and civil law (1 Inst. 24; Swinburne on Wills, part 1); but never bad been regarded with much favor, from their liability to abuse, and generally have not been permitted to pass real estate. 2 Black. Com. 500 ; Bacon’s Abr., title, Wills, D. In New York they are confined by statute to soldiers in actual service or mariners at sea. 2 Eev. Stat., (3d ed.) 121. In Wisconsin they are permitted, but under peculiar restrictions. Section 23, Eev. Stat. 182, is as follows : “No nuncupative will shall be good when the estate thereby bequeathed shall exceed the value of one hundred and fifty dollars, that is not proved by the oath of three witnesses at least, that were present at the making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present, or some of them, to bear witness that the same was his will, or to that effect; nor unless such nuncupative will were made in the time of the last sickness of the deceased, and in the house of his or her habitation or dwelling, or where he or she had been resident for the space of ten days or more next before the making of such will, except where such person was unexpectedly taken sick, being from home, and died before he or she returned to the place of his or her habitation.” Other restrictions are imposed in the subsequent sections upon the probate of such wills, and directions given as to the time and manner of their production and the citation of parties interested.

And it may be laid down as a proposition, universally sustained by the courts, that to entitle a nuncupative will to probate, all the provisions of the law must be strictly complied with. 4 Rawle, 46; 29 Johns. 503.

In reference to the parties claiming to have the present will allowed, and to have been appointed executors under it, it has been alleged that they are estopped from setting it up against the next of bin, or others interested in the estate, by their own acts. And were Brunson and Patch alone to be considered, we should have no hesitation in saying that the application on their part, for letters of administration, and their acceptance of such letters and acting under them, ought forever to close their mouths as to such will. So wide a departure from the duty imposed on them, by their dying friend, in a manner the most solemn and impressive, cannot hut induce a doubt of them real belief in the existence of the will, or their fidelity to its injunctions. We are not disposed, however, to impute to parties so nearly and tenderly connected with the deceased, and his infant orphan children, any other than proper motives and the most earnest, though misdirected, efforts to protect their estate and promote their welfare. From respect to the deceased, and out of a sincere desire to carry out his wishes in regard to the administration.of the estate, we have reviewed the testimony more with a desire to discover proofs of his making, than of his not making the will. But we regret to discover no satisfactory evidence of his intention, either to bestow his estate generally, or to name his executors. His general expressions of concern for the property to be saved to his children, and his desire to have the father and brother of his wife, then living, aid her in its management after his decease, fall far short of full proof of the animus testandi, indispensable to make out the case. His bequest of the few peculiar articles, shown beyond question to have been designed by him for the individuals named as legatees, is entirely consistent with a design to leave his property generally to the disposition of the law. Whether the property bequeathed exceeded in value the sum of one hundred and fifty dollars does not clearly appear; nor is it of much moment; because, if the evidence can be deemed competent to show the making of a will, or the appointment of executors in fact, it cannot for a moment be supposed that this solemn proceeding was gone through by the deceased for the mere purpose of bestowing so trifling a part of his estate and designating his confidential friends to execute the trust. There is no ground whatever to maintain that the transaction shown by the witnesses makes out a nuncupative will of property exceeding one hundred and fifty dollars, within the provisions of our statute. The declarations were insufficient in form; the witnesses were inadequate in number; and the mode of attestation, or calling their attention, lacked every essential requisite for such a purpose. Had it been the case of an unlettered man, ignorant of the special requisites of the law, we might have striven in vain to find a precedent to warrant us in calling it a will. But when we remember that the alleged testator was a man distinguished for his knowledge both of the letter and the practice of the law, we can hardly believe, that in the full possession of his mental faculties, he designed or attempted to dispose of his property in so irregular and informal a maimer. He certainly would not have indulged in general or indefinite and unmeaning terms. He would have called the attention of those about his bedside ; he would have explained his inability to write, and his intention to make a will; he would have said, “this can be done by words in cases of extremity. I wish you to bear witness to my statements ; these are my executors ; thus and thus I give my property; this is my will.”

Such a man, on such an occasion, would have used solemn forms and precise, if not technical, language. He would, at least, have used the language of the law, when that was the most simple, the most expressive, and as familiar to him as household words.

The entire absence of such words and of such forms is conclusive evidence to us of the entire absence of any intention on his part to make a will; more than this, it is proof positive of a design not to do so ; of a purpose to speak in terms which, to those who knew him and understood legal phraseology, would evince his design to avoid the very thing which it is now assumed he intended.

Entertaining these views of the whole case, we are satisfied that the judgment of the court below ought not to be disturbed.

With reference to the appointment of administrators upon this estate, after the renunciation of the next of kin, it may be proper to remark, that although the matter is wholly confided to the discretion of the judge of probate, and he is bound to select such person as he shall judge most fit and most competent to manage its affairs, it has often been deemed proper, where no special objections existed, to select the general guardian of the infant heirs ; such a selection being deemed both most convenient and agreeable to those most deeply concerned in the matter.

Yet this can now be of no great importance, as the debts of the estate must be nearly paid off, and the personal assets will soon be collected or converted into money and ready for distribution, when a final close of administration will be made. In the meantime, and at all times, the real estate must continue under the charge of the general guardian.

Judgment affirmed, with costs.


text:
    Rupert v. Madden, Trustee, etc.
    1. PleadiitG' — descriptio-persom:.'—In an action brought upon two promissory notes, by one of which the defendant, as trustee of the Louisiana company, promises, etc., and the other is in the common form of an individual note, but is signed by the defendant “Trustee Louisiana Co.,” in which the declaration describes the defendant as trustee of the Louisiana company, and the defendant demurred generally : Held, that the action was not brought against him in his fiduciary character, but in his natural capacity, and that the words “Trustee, &c.,” in the declaration, are only descriptive of the person sued.
    (1 Chand. 146.)
    ERROR to the District Court for Iowa County.
    This was an action of assumpsit, brought in Iowa county, on two promissory notes, one of which is declared upon as having been executed by the defendant below, as trastee of the Louisiana company, and the other as having been executed by the defendant below in his own name and individual character, but signed and executed by the defendant as trustee of the said Louisiana company. Thei’e were also in the declaration, the usual money counts. Throughout, in the declaration, the defendant below is described as trustee of the Louisiana company.
    To this declaration the defendant below demurred generally, and, on the argument, the district court sustained the demurrer, and gave judgment for the defendant, and the cause was brought into tins court by writ of error.

      Eaton <& Qothren, for plaintiff in error,
    contended that the character in which the defendant in error executed one of the notes declared upon, and the addition of his representative character, with which he subscribed the other, were mere descriptions of his person, and did not invest him with any exemption from personal liability; and that, having in the body of the notes promised to pay, irrespective of the company, whose name he appended in addition to his own signature, did not change the nature of his responsibility.
    That the liability of the maker of the notes could not be properly tested by the demurrer, and that the demurrer did not give him the opportunity of testing the character in winch he executed the notes, so as to be available as a defense.

      Samuel Crawford, for defendant in error,
    contended that the suit was substantially against the plaintiff in error as trustee, and that no proof of his representative character could be made, and that a judgment rendered against one sued as a trustee, seeking to recover against him personally, was a thing unknown to the law; that therefore the demurrer to thd declaration was well taken.
   Stow, C. J.

The declaration in this case commences, “ Benj. Rupert, plaintiff, complains of Wm, J. Madden, trustee of the Louisiana company, defendant, in a plea of trespass on the case, upon promises, etc.,” and sets forth two promissory notes, in one of which the defendant, “ as trustee of the Louisiana Co.,” promises to pay, etc.; and the other is in the common form of an individual note, but is signed “ Win. J. Madden, trustee Louisiana Co.” There are also the usual common counts. Throughout the declaration the defendant is described as trustee of the Louisiana company. The defendant demurred generally, and the demurrer was sustained by the court below.

On the argument it was contended that the declaration shows that the defendant is sued in his fiduciary character as trustee, and that, if judgment were to pass against him, it would bind the trust fund, which, he contended, could not be done by a proceeding at law. On examining the declaration, we are of opinion that the defendant is not sued as trustee, but in his natural character, and that the words “ trustee, etc.,” are only descriptive of his person, and that therefore the demurrer is bad.

The judgment of the district court is reversed.


author: Hub bell, J.

text:
    Flanegan v. Earnest et al.
    1. Pleading — waiver.—Where in an action, parties had pleaded specially, and afterwards, by stipulation, submit that the cause be tried by the court without a jury, and therein define what evidence may be received, which, if offered under the pleadings, would not have been admissible, held, that its admission at the trial before the court could not be assigned as error.
    2. Error. — Where by stipulation, an action at law is tried by the com-t without a jury, its finding on questions of fact cannot be assigned as error.

    3. GtArrishbE' — jurisdiction.—In order to charge a garnishee, under Ter. St-at. 332, J 9, it should appear that no property was found to satisfy the execution, or not sufficient for that purpose, and that the officer, upon demand of the plaintiff, summoned the garnishee in writing, and in the absence of such showing and proceeding, the court could have no jurisdiction over the garnishee.
    4. GrABinsnEB — judgment.—Judgment against a garnishee cannot be entered by default, under this statute, in case he does not appear, but competent evidence should be given to establish his liability; and if he does not appear, judgment given without such proof would be erroneous.
    (1 OhmcL- 149.)
    EBEOB to tbe District Court for La Fayette County.
    This was an action of trespass, brought by Flanegan in the district court for*La Fayette county, against Earnest and McOoun, for that the defendants in error, with force and arms took and earned away certain goods, chattels and personal property belonging to the plaintiff in error, and converted fhe same to their use.
    The defendants pleaded:
    1. Not guilty ; and,
    2. That in a certain action of assumpsit, where the defendants hi error were plaintiffs, and one Mark Allison was defendant, before a justice of Iowa county, commenced by summons, such proceedings were had that final judgment was rendered against Allison, and that the said plaintiff in error having been required to appear as a garnishee, upon an execution duly issued upon said judgment, did not so appear as required, but made default, so that in said cause such further proceedings were had that the justice rendered judgment against the plaintiff in error as garnishee in said action, in favor of the defendants in error, for the sum of twenty-five' dolíais damages, and fifty-five cents costs of the garnishee proceedings, upon which last mentioned judgment, execution was issued, etc., by virtue of which execution a constable of the county of Iowa, levied upon and sold the property in the declaration mentioned, to satisfy the judgment obtained on the garnishee proceedings aforesaid, which is the same trespass complained of in the declaration. The plea concluded with a verification.

      To tbe second plea of the defendants in error, the plaintiffs in error demurred generally.
    The parties then filed with the clerk a stipulation and agreement, to wit: “ The defendants are to produce the docket of Dyer Divine, a justice of the peace in and for La Fayette county, containing the judgment relied upon by said defendants for their defense, together with the writs and other papers in said cause before said justice ; and the said justice, Dyer Divine, is to be sworn and present a statement of facts to the court relative to the said judgment contained in his docket, and upon the statement of facts so presented by said Divine, and upon the said justice’s docket, containing the judgment relied upon by the defendants as their defense, together with the papers, writs, etc., in said cause before said justice, the court is to decide whether the defense of the said defendants, so submitted, is a good legal defense, and barred the plaintiff from having and maintaining his said action unless the judgment of said court shall be reversed. If the court decide against the defense of said defendants so set up, then a jury of inquiry be awarded to assess damages in favor of the plaintiff. Neither party loses any legal rights as to the points submitted, as to the admissibility of the testimony of said justice.”
    Under the foregoing stipulation and agreement the district court heard the proofs and allegations of the parties ; ordered and adjudged “that the defense set up and relied upon by the defendant is a good and sufficient bar to the said plaintiff s action ; and that the said plaintiff be and he is hereby barred from having or maintaining his action herein, against the said defendants; and it is also ordered and adjudged here, that the said defendants do have and recover from the said plaintiff their costs and charges expended in their defense,” etc.
    Upon the hearing of the cause before the district court, the defendants hi error produced the docket of the justice, Divine, wberein was entered tbe cause of McOoun and Earnest, plaintiffs, and Mark' Allison, defendant, wberein it appears that on the return day of the summons, Allison did not appear, and judgment was rendered therein in favor of the plaintiffs in that suit against the defendant Allison ; that an execution was issued on said judgment against Allison, and which was returned unsatisfied. On the same execution there was the following return, also indorsed by the officer: that he had “ served the within, summoning in writing, Nicholas Flaw-gan (the plaintiff in error) as a garnishee, to appear on the return day of the within execution, at the office of Dyer Divine, justice of the peace in New Diggings, in Iowa county.”
    It also appeared by the docket of the said justice, that on the return of the above mentioned execution, he issued a process in favor of McOoun and Earnest, against the plaintiff in error, requiring the officer to levy by distress the amount of the judgment in favor of McOoun and Earnest, of the goods and chattels of the plaintiff in error as garnishee. The officer did levy and satisfy the execution, of the goods and chattels of the plaintiff in error, as appears by the indorsement to that effect on the execution.
    Justice Divine was also sworn as a witness before the district court, who testified to the docket and proceedings had before him, as before stated and set forth. The justice was questioned by the counsel of the plaintiff in error, whether he entered the judgment against the plaintiff in error by default, or on evidence; answered, that there was no ex parte evidence, and no evidence before him in either case ; but that he entered judgment by default, as expressed in his docket entry.
    The foregoing was all the evidence submitted to the district court, on the trial, under the case agreed upon.
    That thereupon the district court ordered and determined, that the docket entry of the said justice, of the judgment and executions aforesaid, was a good and legal bar to the action of tbe plaintiff; and that the testimony of the said Divine was illegal and not competent to be received in explanation of Ms said docket entry, and that the matter above set forth was a good bar to the action (unless the judgment should be reversed), and that the defendants recover of the plaintiff their costs and charges about their defense in said suit.
    To all of wMch decisions, and to the judgment ordered to be entered, the plaintiff below excepted.

      M. M. Oothren, for the plaintiff in error,
    contended that the justice had acquired no jurisdiction over the garnishee, and erred m rendermg a judgment against Mm.
    He also claimed that the district court erred in rejectmg the oral testimony given by the justice on the trial, and in deciding that the judgment rendered by the justice was a valid one, and cited 1 Johns. Cases, 20 ; 11 Johns. 175, 444; 3 Cow. 106 ; 19 Johns. 40, to show that the judgment was a valid one unless reversed.

      Samuel Crawford, for defendants in error,
    argued that the stipulation and submission before the district court secured no rights beyond the matters therern stipulated, and that the plea in justification was not spoken of or referred to by the stipulation ; that the district court had no right to consider the issue before the justice ; that jurisdiction bemg once acquired in a cause, it was not necessary to the validity of a plea to state the subsequent proceedings ; that this court will Mtend, after jurisdiction is shown, that all subsequent proceedings are regular ; that the first judgment mentioned in the pleadings was but inducement to proceedings on the second, and the mere basis on wMch it was founded (6 Hill, 120); and that the justice’s docket showed a valid judgment. Eev. Stat. 336 ; 9 Pet. 28 ; 10 id. 449.

       But by tbe provisions of chap. 264, Laws of 1860, where the trial is by the court without a jury, the supreme court is required to review the findings of fact, proper exceptions thereto having been taken. Snyder v. Wright, 14 Wis. 689.

   Hub bell, J.

Flanegan sued Earnest and McCoun m the district court of La Fayette county, in a plea of trespass. The defendants pleaded the general issue, and also a special plea, setting up a judgment rendered by Dyer Divine, a justice of the peace, .and an execution issued thereon, under which a levy was made on the property in question; and averring that this was the same trespass alleged in the plaintiff’s declaration. The plaintiff filed a demurrer to the sjaecial plea, which was overruled by the court. The parties then entered into a friendly stipulation to submit all the matters in controversy to the decision of the judge ; and it was agreed, for that pur-pese, that the justice should testify as a witness, and that all the papers on file in his court should be admitted as evidence. Under this stipulation the testimony was given, the case argued by counsel, and the decision of the judge obtained thereon. Judgment of the court followed, and the case now comes here on a bill of exceptions and writ of error.

It seems to this court that it is now too late to bring up for its decision, questions arising on the pleadings before the submission and hearing by stipulation. We should be needlessly encouraging litigation and unwarrantably consuming our own time, if not indeed doing positive injustice to the defendants in error, if we should consent to examine mere questions of law which arose in a case prior to a full and apparently fair trial, upon the merits, had by the voluntary consent of the parties. As far as we have been able to understand the stipulation entered into in this case, it was the intention of the parties to have a final disposition of the matter in the district court. If such was not their purpose, they were unfortunate in the language employed to express their design. And it is a well-settled rule of law, that when matters of fact are submitted to the decision of the court, acting in the capacity of a jury, a writ of error does not lie to reverse or correct any error in its judgment upon the facts. In this view of the case, the present writ of error cannot be sustained. Since, however, the sufficiency of the special plea was brought to the notice of the court upon the argument, it may be proper to remark that, if the case had been brought up on the grounds stated in the demurrer, the ruling of the court below would have been held erroneous. The special plea was defective in several material particulars. Although enough was probably set forth to show the jurisdiction of the justice in the original action of assumpsit — that being mere inducement to the subsequent proceeding under the statute relating to garnishees — still, no facts are set forth to show the right of the justice to entertain this proceeding.

The plea should have averred no property found, or not sufficient to satisfy the execution, and that the officer, upon the demand of the plaintiff, did summon in writing the garnishees named by him, etc. Without the existence of these facts, the proceedings would not be authorized by the statute (Stat. Wis. 332, § 9), and the justice would have no jurisdiction.

Again: The defendants, by their plea, did not sufficiently connect themselves with the levy under the execution against Nicholas Flanegan. It was not enough to set forth that Coffey, as constable, had an execution and made a levy in a case in which they were named as plaintiffs, and that this was “ the same trespass complained of in the plaintiff’s declaration ; ” but it should have been averred, that if the property was taken at all, it was done by them under and by virtue of such execution, or by authority of the constable having the same, and with full legal right, and that such taking constituted the trespass complained of,” etc.

Again: The mode of entering judgment against the garnishee by default, as set forth in the plea, would be irregular and bad. It has probably been the loose practice of many justices of the peace, on the return of a summons regularly served, and the failure of the garnishee to appear, to enter judgment against him by default, in conformity, as is supposed, to the strict letter of the statute. But such proceedings are oppressive and illegal. Judgment can properly be entered against no person withou^t, competent proof of a legal liability. Judgment against garnishees must be taken “ as in ordinary cases,” and that is when the case is made out on satisfactory evidence. Notwithstanding non-appearance and default, the indebtedness of the garnishee to the defendant in the principal case, must be proved as clearly as that of the defendant in the first instance, and without such proof, the judgment might be reversed for error.

These remarks are made for the purpose of establishing general principles of practice, and not with a view to their bearing upon the present case, which is decided, as has been stated, upon other grounds.

Judgment affirmed, with costs.


text:
    Slocum v. Carlton et al.
    1. Feivolous appeal — practice.—Where the defendant in a foreclosure case, interposed a frivolous demurrer, and upon the overruling of which and the rendition of a decree against him, appealed to the supreme court, obviously without merits, and for the purpose of vexing and delaying the complainant; upon affirmance of the decree the court will decree not only all costs against him, but the statute penalty of the payment of twenty-five per cent, interest on the sum decreed until paid.
    (1 Ghand. 165.)
    APPEAL from the late District Court for Racine County.
    The bill was filed for the foreclosure of a mortgage, to which the defendant (the appellant here) interposed a demurrer which was adjudged frivolous, ana upon that brought his appeal to this court. This court regarding the procedure of the appellant as vexatious and for delay, and without any special equity affirmed the decree made by the court below, and awarded damages.

      E. W. Evans, for appellant.

      A. G. Ghatfield, for appellees.
   Stow, C. J.

Tbe bill in this case was for tbe foreclosure of a mortgage ; tbe defendant interposed a frivolous demurrer, which having been overruled, and be neglecting to answer, a decree jyro confesso was taken. From this decree tbe defendant has appealed to this court.

I do not understand that it is pretended that tbe decree ought to be reversed, and tbe only question with us is, with what penalty it shall be affirmed. Tbe appeal has evidently been brought, either for tbe purpose of annoying tbe complainant, or for delay, and in either case tbe defendant should be subjected to tbe highest penalty which we are authorized to impose. It may be,a public benefit for parties to understand, that if they will harass their opponents with vexatious litigation, or if, on speculation, they think it an object to avail themselves of what is called the law’s delay, they must do so at their peril and expect no lenity from this court. In this case the statute authorizes us to award twenty-five per cent, damages and costs, and with which the decree is to be affirmed.

Decree affirmed, with twenty-five per cent, damages and costs.


author: JacesoN, J. Stow, C. J.,

text:
    The State v. Delue.
    1. IirDiCTMBifT. — In framing indictments, it is safer to pursue strictly the words of the statute in charging the offense, than to resort to words of similar meaning; and under a statute which defines the offense to consist in “wilfully and maliciously killing,” etc., it is not sufficient to charge that the killing was “felonious, unlawful and malicious.” The omission of either of the words “wilfully” or “maliciously” will he fatal.

      2. Same — caption.—It is not necessary, either in the caption or body of an indictment, to allege that it is found or presented under the authority of the state, if it he alleged in it that the crime therein charged was committed against the peace and dignity of the state, and that the grand jury making the presentment were empanelled and sworn to inquire in and for the body of the county wherein the indictment is found. Stow, O. J., and Labrabee, J., dissenting.

    (1 Ohand. 166.)
    CASE certified from Circuit Court for Sheboygan County.
    An indictment was found against the defendant, at the circuit court held in and for Sheboygan county, at the September term, 1848, under the provisions of the criminal statutes of Wisconsin, page 350, section 32. The body of the indictment is set' forth in the opinion of the court; prefixed, there was also the ordinary caption, which was entitled “ State of Wisconsin, Sheboygan county, ss.”
    A general demurrer was interposed to the indictment, which was argued at the same term. The presiding judge sustained the demurrer (subject to the opinion of the supreme court), and the case now comes up before this court upon such reference.

      J. S. Brown, attorney-general,
    for the state insisted that it was not the meaning of the constitution that the indictment should be in the name of the people of the state of Wisconsin. That it was the presentation of the grand jury of the county in which the court was held, of which they were the jurors for presentment of offenses against the law. Arch. Crim. Law, 23.
    2. That the conclusion of the indictment alleged the act done was “ against the peace and dignity of the State of Wisconsin,” and therefore it was a sufficient allegation to satisfy the requirement of the constitution of Wisconsin.
    Holliday, for defendant,
    claimed that the indictment was defective in this ; that it did not sufficiently show that it was found under the authority of the state, or in accordance with the requirements of the constitution in that behalf. Whart. Crim. Law, 65.
   JacesoN, J.

This was an indictment found at the September term of the circuit court for Sheboygan county, against Leopold Delue, and which contains the following count, to wit:

“ The jurors of the grandjury of the county of Sheboy-gan aforesaid, upon their oath present: that Leopold Delue, late of the village of Sheboygan, in the county of Sheboy-gan aforesaid, on the 11th day of September, in the year 1848, at the village of Sheboygan, in the county of Sheboy-gan aforesaid, one hog, of the value of five dollars, of the goods and chattels of one Christian Mohr, then and there being, feloniously, unlawfully and maliciously did kill, against the form of the statute in such case made and provided, and against the peace and dignity of the state of Wisconsin.”

To this indictment a general demurrer was interposed, which was sustained by the court, and the defendant, who had been arrested, was discharged from custody.

The only point to be decided in this cause is as to the sufficiency of the indictment, which we cannot but regard as fatally defective.

It purports to be an indictment under our statute, yet varies from it in a material allegation. The statute declares that “ every person who shall willfully and maliciously loll, maim or disfigure any horses, cattle or other beasts of another person, shall be punished by imprisonment in the' couniy jail, not more than two years, nor less than three months, or by a fine not exceeding five hundred dollars, nor less than fifty dollars.”

The indictment charges that the defendant “feloniously, unlawfully and maliciously, did kill,” etc. Such a departure from the language of the statute, in charging the offense committed, is unauthorized by any of the standard authorities upon criminal law. And although the ancient strictness in framing indictments is, in many instances relaxed, yet where an indictment is grounded upon such a statute, we think it a safer rule of practice to pursue strictly the words of the statute in charging the offense. Where a statute, therefore, defines the offense to consist in “willfully and maliciously” killing, etc., it must be expressly charged in the indictment that the offense was “ willfully and maliciously committedand the omission of either the words “willfully” or “maliciously,” will be fatal. Arch. Crina. Plead. 62. Upon the same principle it has also been held, that “an indictment upon statute 7 and 8, Gr. IY, ch. 30, sec. 2, for feloniously, voluntarily and maliciously setting fire to a barn, was holden bad, because the words of the statute are “ unlawfully and maliciously.” Arch. Grim. Plead. 62.

Another point, however, has been raised in the argument of this case, which we deem important to notice for the purpose of settling the practice in framing indictments, although the present must be held bad for the reasons which we have already stated. It is insisted that, inasmuch as the constitution of this state requires (Alt. 7, § 17) that “ all criminal prosecutions shall be carried on in the name and by the authority of the state,” that this indictment is defective in not alleging affirmatively that it is so prosecuted.

We. do not think that it was designed by this provision to require, either in the caption or in the body of the indictment, an affirmative allegation in the language of the constitution; although such, perhaps, might be a more formal and appropriate practice. It is doubtful, however, whether this provision of the constitution is applicable to indictments., which are but the presentments of grand juries, embodying in legal form, the result of their inquiries for the information of the court. They are the basis upon which process issues against the offender; and which process may be considered as the first step in the prosecution specified in the constitution. This process very properly issues in the name and by the authority of the state. But the indictment being but a preliminary proceeding, leading to rather than constituting the prosecution, need not bear on its face the evidence of having been found by a grand jury acting expressly in the name of the state. It is sufficient, in respect to the point objected to, if the venue be laid in some county within the state, and it be substantially set forth therein, that the grand jurors are good and lawful men, duly empaneled, charged and sworn to inquire in and for the body of such county.

We think, however, that as the constitution expressly requires that all indictments shall conclude, “ against the peace and dignity of the state,” this is sufficient to show that the proceedings of the grand jury are conducted in the name and by the authority of the state; and that so far as the form of the indictment is concerned, the insertion of that clause is a sufficient assertion of state sovereignty, and all that the framers of the constitution contemplated in that respect. More particularity than this cannot be necessary to comply with both tiie letter and the spirit of the constitution.

These positions being, as we are satisfied, correct, it follows as a necessary conclusion, that this indictment, however defective in other respecte, is not liable to the objection insisted on in the argument.

Judgment affirmed.

Stow, C. J.,

remarked (LaRRAbee, J., concurring), that he still thought, as at the circuit, that the indictment was good for nothing, and therefore concurred in affirming the judgment. But he could by no means assent to all the doctrines of the majority of the court. In his opinion it was indispensable that it should appear from the indictment itself that it was found by the authority, and was prosecuted in the name, of the sovereign. So were all the precedents and all the authorities at common law, to say nothing of our express constitutional provision. The idea that an indictment is but the basis of a prosecution, and that the process or bench-warrant, issuing upon it, is the first step in the criminal proceeding, was to him a novel one, and which he could not sanction. It might, and probably would, be attended with serious embarrassments.


author: Whitost, J.

text:
    Lewis v. Woolfolk.
    1. Pleading — bond.—L. & W. dissolved partnership, the former entering into a bond to "W. to pay alltiebts and save W. harmless therefrom, and to keep and observe a release of all demands, both for himself and one A., which was recited in the bond. In an action on the bond, one breach was assigned that L. had brought suit in the name of himself and A., and arrested W. on the cause of action, and six other breaches were to the effect that certain partnership demands, transferred to W. on dissolution, as just debts, were unfounded, having been previously paid. Held, 1. That the first breach was not well assigned, it not appearing that the debt, on which that suit was brought, was owned by and due to L. & A. at the time of the execution of the bond. 2. That the bond did not make L. guarantor of the partnership demands transferred by him to "W., and the term “partnership debts,” used in the bond, could extend only to debts which the firm ow'ed third persons.
    2. Evidence — error.—The admission of evidence to prove breaches of a bond not well assigned, and facts not properly in issue, is error.
    (1 CTtand. 171.)
    ERROR to the late District Court for Grant County.
    This was an action of debt brought by the defendant in error against the plaintiff hr error, on a bond, the recital preceding the condition of which, and the condition thereof, was as follows, to wit: “ The condition of this obligation is such that, whereas, in consideration of the said Woolfolh withdrawing a certain suit in chancery, commenced by said Woolfolk, against said Lewis and one Julius Augustine, and for the further consideration of five hundred dollars, to said Lewis paid, the said Lewis hath agreed to pay all the partnership debts, due from the late Lewis & Woolfolk, doing business at Potosi, in Grant county aforesaid, and indemnify and save harmless the said John A. Woolfolk from the payment of said debts, and from all costs, suits, actions, and trouble he might thereby incur’. And, whereas, it having been agreed by said Lewis & Woolfolk, that they would pass to each other their reciprocal releases; in consideration thereof, the said Lewis, both for himself and the said Julius Augustine, hath remised, released, and forever quit-claimed, and doth hereby remise, release, and forever quit-claim unto the said John A. Woolf oik, his heirs, etc., all actions, causes of action, suits, debts, dues, sum and sums of money, accounts;' reckonings, bonds, specialties, covenants, contracts, variances, damages, executions, claims and demands whatsoever (except as excepted in the reciprocal bond and release of said John A. Woolfolk, bearing even date herewith), both at law and equity,' which, against the said John A. Woolfolk, the said Lewis or Augustine, now hath, or ever had, on account of their mutual dealings, or on any other account whatsoever, from the beginning of the world to this day.
    “And the said Lewis intends this' l’elease, although only recited, to be as full and effectual as if it had been more expressly and formally drawn up and executed.
    “Now, if the said Lewis, for himself and said Augustine, shall well and truly pay all said partnership debts, and save harmless the said John A. Woolfolk from all payments thereof and all costs, ■trouble and expenses he may incur thereby, and shall also pay all the legal costs of court incurred in the chancery suit aforesaid, by said Woolfolk, and also, if the said Lewis, for himself and said Augustine, shall, in all things, well and truly observe and keep, in spirit and letter, the release above recited, and the requisitions thereof, and perform all the duties thereby arising, then this obligation shall be void.”
    The defendant below pleaded a full performance; the plaintiff put in a replication, assigning breaches of the bond declared upon. The first breach assigned was, that after the execution of the bond, Lewis sued Woolfolk for a cause of action, which accrued before the release was given ; and caused him to be arrested on a capias, issued by Coyle, a justice, on the ground of his being about to depart the state, by which he was put to trouble, expense, etc. The remaining six breaches were substantially alike, and alleged that Lewis did not pay all the debts due from the co-partnership, and save Woolfolk harmless from the payment of debts, costs, etc.
    The defendant demurred to the replication generally, and the plaintiff joined in demurrer; the court overruled the demurrer ; after which the defendant rejoined to the replicar tion, tendering air issue to the country on the first breach assigned ; and to the other breaches, setting up that the co-partnership demands, on which Woolfolk brought suits, were taken by him on a division of partnership property and effects, and subject to all the deductions therefrom by way of set-off, or otherwise, on the part of the debtors at the time of such division. This rejoinder concluded with a verification.
    The plaintiff surrejoined, alleging that the notes, accounts, etc., mentioned in the assignment of breaches, were assigned by Lewis to Woolfolk, as just debts still due, and owing from debtors to the firm of Lewis & Woolfolk, and tendering an issue to the country.
    On the trial of the cause, the counsel for the defendant took various exceptions to the ruling of the presiding judge. The defendant's counsel also, on the trial, requested the judge to charge the jury:
    1. That, unless the jury should find that the defendant assigned the demands mentioned in the plaintiff’s replication, and by such assignment guaranteed that the amount specified in such demands were actually due, the jury should find for the defendant.
    2. That, unless it appeared that the demands aforesaid, transferred to the plaintiff arose from an indebtedness contracted with the firm of Lewis <& Woolfolk, and the off-set to such demands were chargeable against said firm, that then the jury should find for the defendant
    3. That, as respects the assigned demands against which there were offsets, arising in the manner aforesaid, the plaintiff could only recover against the defendant such amounts as should be recovered by the debtors of the firm, against the firm itself, by proving such offsets to exceed the sums due from them to the firm ; and that it appeared in proof that in all such instances, the defendant had paid such excess and the costs.
    The judge, however, refused to charge as requested.. On the trial, the plaintiff offered in evidence the docket of P. Coyle, a justice, and he was also sworn, and testified as to the suits commenced before him, on the notes and accounts taken on the division by Woólfóllc.

    This testimony was objected to, but admitted by the judge; and an exception was taken thereunto.
    The jury assessed the damages of the plaintiff at $260, and he had judgment.

      Oole & Biddlecome, for plaintiff in error,
    argued that the justice, who was sworn on the trial, gave evidence of immar terial, irrelevant and objectionable matter; that the division of the co-partnership property and securities belonging to the parties had occurred before the execution of the bond, upon which the suit was founded; that the terms of the bond could not be enlarged, as was sought to be done by the plaintiff below, on the trial, and that the judge should have so decided and have overruled the evidence; that there was an uncertainty in the finding of the jury which this court could not rectify, and to this last point cited various authorities.

      F. J. Dunn, for the defendant in error,
    claimed that the condition of the bond covered all the deficiencies that through any contingency could arise, and that the plaintiff hi error was, by the bond, made liable under the evidence given on the trial of the cause.
   Whitost, J.

Lewis and WoolfoTk being partners in business and having come to the determination to dissolve the partnership, Lewis entered into a bond to WoolfoTk, conditioned to pay all the partnership debts, and save WoolfoTk harmless therefrom, and to observe and keep a release of all demands, both for himself and one Julius Augustine, which release was recited in the bond. An action was brought on the bond by Woolfolk, and seven breaches assigned ; one for an arrest by Lewis, in a suit brought in his name, and in the name of Augustine, against Woolfolk, which is alleged to be a breach of the condition of the bond, inasmuch as that provides that Lewis shall keep and observe the release.

I am, however, of opinion- that this breach is not well assigned, as the assignment does'not show that the debt, upon which Hie suit was brought, was released. It is averred merely, that the account or claim upon which it was founded accrued before the date and execution of the bond. ‘ Now, this might well be, and yet the claim sued upon*not be one of those-released, for the reason that it might have come to Lewis and Augustine by assignment or transfer after the execution of the bond. The assignment of the breach should have shown that this was one of the claims released, and in order to do so, the plaintiff should have averred that the claim or demand not only accrued before the bond was-executed, but that it was then owned by Lewis and Augustine.

The other breaches assigned are, that certain partnership demands, which were transferred by Lewis to Woolfolk as just debts, were found, when suits were brought upon them, to be worthless and not collectable, for the reason that they had been previously paid; and it is averred that, in two instances, where suits were brought upon these demands, the defendant on the trial pleaded and proved accounts in offset to a greater amount than the demands sued upon, by which means Wool folk had a judgment rendered against him. These breaches are alleged to be within the condition of the bond, because they show that Woolfolk was not saved harmless from the partnership debts. -This, I think, is true only of those demands which had been overpaid, and in suits upon which Woolfolk had judgments rendered against him for the amount thus overpaid ; for I cannot think that the bond made Lewis guarantor of the demands transferred by him to Woolf ollc. The term “partnership debts” cannot mean anything more than debts which they in fact owed to other persons. If a person against whom they had an apparent demand had paid it, or had an offset against it, to its full amount, before the transfer to Wool folk, there was, in fact, no debt due either to or from them; and such a state of facts does not show a breach of the conditions of the bond. In the two eases aboye alluded to, in which the apparent debtors had offsets to a greater amount than the demands against them, the breaches are well assigned, and Lewis is liable on the bond for the amount thus paid by Wool-folk. To the replication of the plaintiff, assigning the breaches, the defendant filed a general demurrer, which was overruled. The defendant then filed a rejoinder, denying the liability of Woolf oik, and averring that he took the demands subject to all legal offsets, in an amicable division of the partnership accounts, etc. The plaintiff filed a surrejoinder, alleging that the demands were transferred to him as just debts, still due, etc.; and on the issue thus formed, the parties went to trial. The jury found a verdict for the plaintiff', upon which the court rendered a judgment for the sum of two hundred and sixty dollars.

The bill of exceptions shows that exceptions were taken to the ruling of the judge, during the trial, permitting the docket of Peter Coyle, a justice of the peace, to be read in evidence, which proved that in actions tried before him, founded on the demands above alluded to, the defendants proved payment on the demands or set-offs to the amount of the claims sued upon. This evidence was only admissible to prove those breaches which were well assigned, and was very properly objected to, so tar as it related to the others.

The judge, therefore, erred in receiving it, and for this error the judgment must be reversed. We deem it unnecessary to notice all the errors assigned, as the one alluded to is decisive.

Judgment reversed with costs.