text:
    How et al. v. Kane, impleaded with Cogswell.
    1. Dormant partnership — equity—creditors’ bill. — Where a mercantile ■business had been carried on in the name of O., K. being his dormant partner in it, and creditors obtained judgment against the former for debts contracted in carrying it on, upon which executions had issued and been returned nulla bona,; a bill, alleging that K., the dormant partner, had, by fraudulent contrivance with the ostensible partner, obtained a transfer and possession of the partnership assets in fraud of such creditors, will be maintained, and a discovery of the assets of the firm enforced, and they be subjected to the payment of such debts.
    2. Dormant partner — priority of payment. — In the case of a dormant partnership, a partnership creditor has no prior right to be paid out of the common property, in preference to the separate creditor of the ostensible partner.
    3. Dormant partner-equity. — A dormant partner is liable in equity for partnership debts to the extent of the assets he has received from the partnership, though judgments for such debts have been rendered against the ostensible partner only.
    4. Same. — ■Where creditors have elected to pursue the ostensible partner only, at law, their claims are merged in the judgments recovered, so that in a court of equity they cannot fall back on their original right against both, and get a personal decree against the dormant partner beyond the amount of the assets he has received.
    5. Creditor’s bill — execution.—The objection that the execution issued at law, upon the return of which, nulla bona, the bill is founded, is irregular, and that it was made returnable on a day out of term without a special order, is not available in a creditor’s suit, on demurrer or otherwise, except by getting it set aside by the law court, and then setting that fact up as matter of defense.
    6. Same.- — A court of equity will not review or decide upon the regularity of either mesne or final process issued by another court of general jurisdiction.
    7. Change prom territory to state — courts.—The state constitution was adopted in March, 1848, but the territory was not admitted, by act of congress as a state, until May 20,1848. Held, that the adoption of the constitution by the people of the territory did not create it a state, and that such political change could be efiected only by the action of congress admitting it, but there could be no inte/rregwmn, and the territorial courts remained in the meantime in the proper exercise of their legal functions and judgments rendered by them up to the time of the admission of the state by congress, are valid.
    (2 Ghand. 222.)
    APPEAL from tlie Circuit Court for Washington County. This was an appeal by the defendant, Kane, from the decision of the circuit judge of the third circuit, oyerruling his demurrer to the complainants’ bill.
    This demurrer assigned causes, which are designated in the opinion of the court, and his counsel also assumed to assign other causes of demurrer are terms, which were coupled with the causes assigned upon the record, and were urged at the same time therewith. The right to do this was objected to by the counsel for the complainants until the final hearing of the cause, or at least, not until the written demurrers should have been decided by the court adversely to the demurring party. The opinion of the court sufficiently shows that the causes of demurrer assigned ore tenus were not considered or decided.
    The general principles of the bill are referred to in the opinion of the court, and it is not deemed necessary to enlarge such statement by the insertion of the special acts of fraud alleged, and which are not pertinent to the matter of the written demurrers. It is proper, however, to state that the bill does allege, that in the formation of the co-partnership of Kane & Cogswell, it was especially agreed by the defendant, that the name of the defendant, Kane, should not be used, and that all the liabilities created should be in the name of the defendant, Cogswell, and that the name of Kane should be concealed as a party in interest, and that this arrangement was acted upon in the creation of the debts made with the complainants and others ; and that until the alleged fraudulent assignment and transfer of the co-partnership effects by Cogs-well to Kane, Kane assumed to be merely a clerk to Cogswell ; and that the assignment by Cogswell was in fraud of creditors, and merely colorable, to protect the property for their mutual benefit; and that after such pretended sale and assignment, the partnership continued as before, Cogswell then claiming and pretending to be the clerk, and Kane the principal.

      K G. Ryan and J. Holliday, for appellant, Kane.

    I. This is not a creditor’s bill seeking to reach the property of the judgment debtor in the hands of a third person. It is either a bill seeking to establish in equity the original liability of a dormant partner, or it Is a bill by the judgment creditors of an individual partner, seeking payment of the debtor partner’s separate liability out of tbe partnership.
    1. The frame of the bill, in the stating and charging’ parts, and in the prayer, all consistent and uniform, seems to settle the first proposition, that it is exhibited to enforce the original liability of Kane as a dormant partner of Oogswell. In the stating part the whole seems framed on this idea. So is framed the charging part. So is the prayer. It seems impossible to resist this conclusion. And if this be the construction of the bill, it is clearly bad.
    2. This is seeking in equity the appropriate function of a , court of law, to enforce the payment of a simple contract debt against the parties primarily liable upon it. There is no precedent for it. Penny v. Marlin, 4 Johns. Ch. 566 ; Washington, J., in Willings v. Consequa, 1 Pet. C.-C. 302 ; Wiggins v. Armstrong, 2 Johns. Ch. 144; Angelí v. Draper, 1 Vern. 399 ; Shirley v. Watts, 3 Atk. 200 ; Bennett v. Musgrave, 2 Yes. 51; Batch v. Wastáll, 1 P. Wms. 445 ; Mitf. Eq. PL 115 ; Baker v. Biddle, 1 Bald. 417.
    It is noticeable and important that there is no averment in the bill that the complainants were ignorant of the partnership at the times of the recovery of the judgments. If, at the time of the suits brought against Oogswell, they had notice of the partnership, they had a right of election to make the dormant partner a party or not. Story’s Partnership, § 241 and note. ■
    Eor all that appears in the bill, they exercised that election, and discharged Kane. This even seems to be apparent in the case of all the judgments except one, for they were obtained within twenty days of filing the bill. There is here no pretense of mistake. Even admitting that they had no notice of the partnership before judgment, it may still be questioned, whether, after the recovery against Oogswell, there is any remedy at law against Kane. It is believed that there is not. Smith v. Black, 9 Serg. & R. 142 ; Ward v. Johnson,
      13 Mass. 148 ; Robertson v. Lynch, 18 Johns. 451; Sheehy v. Mandeville, 6 Cranch, 253; 2 Cond. 362.
    But it seems very certain that whether there be a remedy at law or not, this bill cannot be sustained on the ground now considered, for if there be, then clearly equity will leave the complainants to it; and if there be not, then there is no foundation for equity to act upon. There is no equitable liability growing out of partnership which is not founded on a legal liability' except as between the partners.
    It is lately a common but erroneous idea, that equity has a remedy in every case of doubtful legal right. Equity creates no new rights, except on some special grounds of jurisdiction, within none of which this bill comes ; it only enforces rights existing at law, which the courts of law are inadequate to enforce. Nor, so far as this bill seeks to enforce Oogswell’s liability as an original debt against Kane, is there any hardship in this, for the credit was given to Gogswell, and to him only.
    3. In the present view of the bill it is multifarious. Several judgment creditors may indeed unite in one bill against their common judgment debtor and his trustees for a discovery of his property, and satisfaction of their judgments (Story’s Eq. PL, § 286); but that is a peculiar case, very different from this. That is the case of persons who have severally ascertained their rights at law, and who come into equity for a common satisfaction of them. Tins is a case, as against this defendant, of persons claiming to be his several creditors, and seeking to enforce against him their several rights in one bill. The claims of the complainants are several, distinct and independent. There is no privity or community of right between the complainants. This defendant is not bound by the judgments, and may make distinct and different defenses against the complainants. The facts of purchase and notice may be different. If the case put by the bill affords any remedy, some may prevail, and some fail on the facts of each case. There is no common right, no joint claim in the complainants, and the bill is multifarious. Story’s Eq., § 279 ; Haarison v. Hogg, 2 Yes. 323 ; Boyd v. Hoyé, 5 Paige, 65 ; Yeaton v. Lennox, 8 Pet. 123.
    H. This may be considered a bill by the judgment creditors of an individual partner, seeking payment of his separate liability out of the partnership funds. Admitting this defendant’s original liability with Oogswell at law, that liability has been merged in the judgments (¡Smith v. Blade, 9 Serg. & E. 142 ; Ward v. Johnson, 13 Mass. 148 ; ¡Robertson v. Lyndi, 18 Johns. 451; Peters v. Sanford, 1 Denio, 224); and the separate judgment creditors of Oogswell stand in the same relation to the partnership as if them claims had been originally separate demands against him, especially if this is the result of an election which was binding on the defendants; and in the absence of all allegation to the contrary, the court is to assume that it was by election. Now the separate judgment creditors of a partner have only two modes of reaching the partnership assets : 1. By levying execution on the interest of the debtor partner, and filing a bill in the name of the sheriff or creditor, pending the levy against the partnership, for a discovery of the partner’s interest, and then selling it; or, 2. By selling it without such discovery, when the right of calling the partnership to an account vests in the purchaser. Story’s Partnership, §§ 261-264. Neither course has here been pursued, and the complainants have missed their true remedy.
    There is another view of this bill in which it cannot be sustained as a creditor’s bill. When a judgment creditor has exhausted his remedy at law, he is permitted by modern practice, aided by statutes, to seek, a discovery of his debtor’s property in equity, and the application of it to the satisfaction of the judgment. He may thus reach the debtor’s properly in the hands of trustees or stakeholders, making them parties. But this remedy reaches only the separate properly of the judgment debtor. It is a peculiar remedy, strictly limited to its appropriate uses, and it would be an innovation, wholly unsanctioned by authority or precedent, to extend it so as to reach the property of a partnership of which the judgment debtor is a member. This defendant is not alleged to have separate property of the judgment debtor; he is alleged to have property of a subsisting partnership, composed of himself and the judgment debtor ; and to reach such property is not the office of a creditor’s bill. If Kane is a trustee, he is the trustee, not of Cogswell, but of the partnership. The bill discloses the fact that there are other original creditors of the partnership. These other creditors may now be, or hereafter become, judgment creditors against both defendants; and it is not the duty of the court to give priority to the separate judgment creditors of one partner over the joint creditors of the partnership, whether the sejsarate creditors became so by election or by laches.

    HI. The equitable jurisdiction of fraud will not be found to aid this bill. The mere allegation of fraud does not give equity jurisdiction. The case must be brought within some settled rule of equitable interposition against fraud. Here it is sought to charge Kane with the debts contracted by Cogs-well. And it is very clear that none of the facts alleged, happening subsequently to the accruing of those debts, aid the jurisdiction of the court, on the ground of fraud. The case must be taken on the facts as they were when the debts were contracted by Cogswell. And these facts, as alleged, are simply that there was a partnership between the defendants, Cogswell being the ostensible, and Kane a dormant partner. This is not fraud in fact or .in law. The relation of a dormant partner to the partnership and its creditors, is of such ordinary occurrence, that it has long been settled and sanctioned by the highest judicial authorities. Collyer on Part. 3,. 62, 393, 424; Story’s Part., §§ 63, 80, 159. Nor, as these authorities show, is there any distinction between dormant and secret partners, except in a single point irrelevant to this case. There was then no fraud in the dormant partnership of Kane., nor in the secrecy of his relations to the partnership. Nor any hardship on the complainants, for the credit was given to Qogswell alone. Certainly, according to the state of facts set up in the bill, Kane was liable with Cogs-well, if the creditors saw fit to hold him so; but they had elected to discharge him and pursue Cogswell, alone, as they have done. Collyer, 424. But the mere suppression of his name at the time of the contracts, is sanctioned by ancient commercial practice, and a long train of judicial decisions. And the court will notice that the bill states no fraudulent device or intent in the formation of this first state of partnership, or in the mcuning of the liabilities by it. All the fraudulent imputations of the bill are reserved for the second state of partnership, when Kane became the ostensible and Cogswell the secret partner.
    It is not now necessary to discuss how far these imputations of fraudulent intent might or might not sustain a bill similar to this, seeking to hold Cogswell liable for judgments obtained against Kane. It is sufficient to say that they cannot aid the jurisdiction of the court in this case for relief on foot for prior contracts, on the ground of fraud. The concealment of Kane's partnership at the time of the purchases by Cogswell from the complainants, is not such fraud as calls for the aid of a court of equity. Story’s Eq., ^ 204, 220.
    IV. Considered as a creditor’s bill, this bill is fatally defective for several reasons. A creditor’s bill is permitted only when a creditor has exhausted his remedy at law, by the due return of an execution unsatisfied. And it is immediately founded on the return of nulla bona by the sheriff. In Storm v. Waddell, Vice Chancellor SaNfobd called these “ bills of unsatisfied judgment and execution creditors.” Hendricks v. Robertson, 2 Johns. Ch. 283 ; Williams v. Brown, 4 id. 682 ; McDermott v. Strong, id. 687 ; Brinkerhoff v. Brown, id. 671; Cassidy v. Meacham, 3 Paige, 311; Clarkson v. De

      Beyster, id. 320 ; McHwain v. Willis, id. 506. Affirmed by court of errors, December, 1832. Child v. Brace, 4 id. 314 ; Heed v. Wheaton, 7 id. 663 ; Merchant’s Bank v. Griffith, 10 id. 519. And this jurisdiction goes upon the principle of lien. See the cases quoted, and a full review of them in Storm v. WaddeU, 2 Sandf. 494. There must then be in order to sustain a creditor’s bill, a judgment unsatisfied; an execution duly issued and returned unsatisfied; an exhausting of all remedies at law ; and a lien to be enforced.
    1. Here is no judgment in the case of the complainants, Van Burén and Churchill. It is not alleged in the bill to have been recovered at any term of the district court. • Nor was there then any territorial district court existing. The state constitution was adopted on the 2d Monday of March, 1848. And from thence the territorial courts of the United States ceased to exist.
    2. Here is no allegation that the judgments were docketed. The true construction of our law is, that there is no lien on real estate until the judgment is docketed. And the omission is fatal. Wheeler v. Heermance, 3 Sandf. 597. And this is understood to have been held by the territorial courts. See form in 3 Hoffman’s Pr. 224.
    3. Here are.no executions duly issued and returned unsatis-field. All process was then to be made returnable on the first day of the next term, unless otherwise directed by the judge. These were not return days. Any direction of the judge to change the regular return days should be of record, and the record of it should appear. These writs were then returnable on no lawful return day. And wei’e not writs, but void. The rule requires the complainants to exhaust them remedies at law. A return of nulla bona before the return day would be insufficient. Cassidy v. Meacham, 3 Paige, 311. So when execution is issued to another county than that of the defendant’s residence. Wheeler v. Heermance, 3 Sandf. 597; Reed v. Wheaton, 7 Paige, 663. And it is a mere mockery to say that the issuing of those executions proforma, returnable within one or two clays, contrary‘to the statutory provision, exhausted the remedy at law against Cogswell.

    4. There should have been an averment that the bill was not exhibited by collusion with the judgment debtor. See form, 3 Hoffman’s Pr. 225. This is essential, for otherwise the court would be called upon in the name of a fictitious or originally real creditor, under judgments controlled by the judgment debtor, to do indirectly what the court would not do directly. This averment is due to the integrity of the court. And this is believed a proper case to enforce it in.
    Y. The order of the circuit court to answer over is wrong. The order directs the bill to be taken pro confesso, unless fully answered within a specified time. This order is unusual and improper. After overruling one demurrer to the whole bill, we had the right to demur and plead, or demur and answer, or answer and plead. Mitford’s Eq. PI. 16.' And it is improper to order that the bill be taken pro confesso unless fully answered. The order to answer should be that the bill be answered or taken pro confesso, leaving the complainant to his exceptions if necessary.

      D. H. Chandler and JET. 8. Orton, for the complainants,
    made and argued the following points :
    1. The first cause of demurrer is insufficient. The objection made by it is, that the execution in favor of Van Burén and Churchill was made returnable on a day which by law it could not be, without a special order of the court from which it issued.
    This cause of demurrer presents an issue of fact, whether the order of the court was procured or not. It assumes a fact which is not alleged in the bill. A demurrer, to be good, cannot perform such a function. It is a speaking demurrer.
    Granting the execution was irregularly issued, or returnable, the demurring defendant should have applied to the court in which it was issued, to have it set aside. This court will not hear an impeachment of the regularity of the process of another court, where it is the basis or an integral part of the hill filed here. Williams v. Hogeboom, 8 Paige, 469 ; Sanford v. Sinclair, 8 id. 373. To the same point, Shottenkirk v. Wheeler, 3 Johns. Ch. 275 ; Campbell v. Farrall, 1 Lloyd & Goold (Temp. Plunkett), 388.

      K fieri facias having a wrong teste or return, or a misdescription of the court in the name of which it is issued or made returnable, or other errors, is not rendered void, hut voidable only, and may be amended. Williams v. Rogers, 5 Johns. 163, and cases there cited; Scott v. Shaw, 13 id. 378; Cramer v. Vanalstyne, 9 id. 386; Hone v. Mosely, 2 Edward’s Ch.; Atkinson v. Newton, 2 Bos. & Pul. 336 ; Campbellv. Camming, 2 Bur. 1187; Phelps v. Ball, 1 Johns. Cases, 31; Laroche v. Washburn, 2 Term, 737; Bissell v. Kipp, 5 Johns. 100; Jackson v. Walker, 4 Wend. 462 ; Mclntire v. Rowan, 3 Johns. 144. “
    2. But the defendant Kane, who alone defends in this suit, is not a party to any of the executions upon which this bill is filed, and cannot set up any error in the issuing of the executions, or the return thereof. A stranger to a judgment or execution cannot set up any defense to its validity. Bissell v. Kipp, 5 Johns. 89, and cases there cited.
    3. The second cause of demurrer is likened to the first, with the exception of the objection that no irregularity in the executions is alleged, except as respects the return day of them, and as to that it alleges the same objections. This cause of demurrer is also subject to the same objection as the first, as a speaking demurrer.

    Those parts of the first and second demurrer which we claim are speaking, are such of them as allege facts not patent upon the face of the bill, but dehors it, and which, if of any avail to have been stated, would have told efficiently in an ansvjer to the bill, but cannot by way of demurrer.
    A speaking demurrer is that which states some fact which does not appear in the bill, and which is necessary to support the demurrer. It cannot state what is not alleged in the bill without being subject to be overruled. Mitf. Eq. PI. 213 ; Story’s Eq. PI. 352, §§ 447-449 ; Kuyper's JUx’rs, etc. v. The Ministers, JElders, etc., of Reformed Dutch Ghurch, 6 Paige, 570 ; 2 Yes. Jr. 83 ; 2 Yes. 245 ; Lube Eq. PL 340; Ver planch v. Gaines, 1 Johns. Ch. 57.
    The two causes of demurrer above referred to are applied to different and distinct parts of the bill, but neither one of them to the whole, although they both profess to be put hito the whole bill; and if bad as, to the whole, they must fail, and be overruled. It is admitted that distinct demurrers may be put into distinct parts of the bill, but they must so purport on the face of them. Story’s Eq. PI. 349, §§ 443, 444, and authorities there quoted.
    4. The third cause of demurrer assumes, upon the matters of the bill, to claim for the demurrant, as a matter of law, all exemption from liability on account of the judgments in favor of complainants, because judgments have been recovered against Gogswell alone, and that hence he, Kane, is released from any claim made upon him by the “ bill.” The principle here asserted is a fallacy, and the sooner it is dissipated shall we arrive at the truth.
    A party complainant, in a creditor’s bill, may join with the judgment debtor any other persons whose acts are in hostility to his rights, or any person who has possessed himself of the property of the judgment debtor sought to be reached by the bill, and in which he is alleged to have an interest, and which cannot be reached, by reason of fraudulent concealment, or which is alleged to have been fraudulently assigned and covered up. The bill charges that Gogswell and Kane, by the willing consent and co-operation of both, have fraudulently invested Kane with the whole property to winch the creditors were entitled, and he wrongfully withholds it from them. The question of Kane's liability, upon the principle of his having been a partner witb Oogswell at tbe time tbe debts were contracted, and at tbe time Oogswell gaye bis individual responsibility therefor, is not tbe point now to be decided. We have tbe right, by this bill, to sift tbe consciences of tbe parties, and to compel them to discover tbe alleged fraud by which tbe property has been covered up, and to compel them to disgorge what belongs to us ; and we aré not to be put aside by technicalities, shifts, devices or legerdemain. We have a right to probe their rottenness to tbe bottom, and to gather tbe honest fruit which may be disclosed by the purification.
    Though the bill charges Kane to have been originally hable as a joint debtor with Oogsioell, and is still legally and equitably hable, yet we have the right to discovery of the property in his hands which is covered up, and in which Oogswell is interested, whether Kane is exempt from liability by reason of the recovery of the judgment against Oogswell, or not.
    In accordance with the principle here assumed, the following authorities are cited: Buy dam v. Hoy l, 5 Paige, 65; Bdmiston v. Lyde, 1 id. 637 ; 1 Barb. Pr. 156 ; Stafford v. Mott, 3 Paige, 100 ; 2 Barb. Pr. 156; Leroy v. Rogers, 3 Paige, 234; McDonald v. Strong, 4 Johns. Ch. 687 ; Wright v. Hitchcock, 3 Munf. 521; Jones v. Henry, 3 Lit. 427; Donovan v. Finn, Hoplc. 59-85 ; Weed v. Pierce, 9 Cow. 722; Hendricks v. Robinson, 2 Johns. Ch. 296; Johnson v. Gilbert, 3 Conn. 166 ; Middleton Bank v. Russ, 3 id. 135 ; Qammack v. Johnson, 1 Green, 164 ; Bryan v. Knickerbocker, Barb. 409 ; id. 34.
    It is no objection to a bill that it prays for too much relief. Though it does so, the court will grant such part of the relief as is compatible with the case made by it.
    5. A demurrer put in to the whole bill will be overruled if any of the relief or discovery prayed for is sustainable. Kimberly v. Sells, 3 Johns. Ch. 467; Leroy v. Vedder, 1 Johns. Cases, 417 ; Laight v. Morgan, id. 429.
    If the defendant regards the prayer for relief too broad, he should demur to such part thereof as is not sound, and answer as to the residue. Whitbeck v. Edgar, 2 Barb. Ch. 106. Where a bill is filed for discovery and relief against a party who is not liable as respects relief, but is bound to make dis-coveiy, a demurrer by him to the whole bill yill be overruled. He should only demur to the relief, and discover by answer as to the remainder. Wright v. Dana, 1 Mete. 237.
    6. The fourth cause of demurrer is a general one, claiming that the complainants are not entitled to either discoveiy or relief, as against the' demurring defendant, because the bill does not make such a case as to entitle the complainants to either. It is confidently believed that the preceding authorities clearly show that the complainants are entitled to both ; and that if the whole relief which is prayed for cannot be granted on the final hearing, a part of it, at least, must be, and that we are entitled to the discovery sought for, beyond a peradventure.
   Stow, C. J.

Did the bill in this case depend upon its name, or any name, it would be difficult to sustain it. It is not technically a creditor’s bill. The complainant’s counsel, in answer to an inquiry from the bench, says, that it is not a bill in aid of an execution. And, as far as it seeks to subject the defendant Kane, personally, to a decree for the payment of the judgments against his partner Oogswell, it is clear that it cannot be supported. Yet, taken altogether, rejecting a good deal of the stating and charging part as impertinent, and denying the principal relief sought, we are of opinion that the bill should be sustained as to the discoveiy, and as to some portion of the relief which it seeks.

The bill was filed by the complainants Howe and eight others, judgment creditors of the defendant Cogswell, in behalf of themselves and all other judgment creditors of Cogs-well. It states that the defendants were partners in mercantile business, and that their partnership commenced in 1844 ; tbat Cogswell was tbe active and only ostensible partner; tbat tbe debts on wbicb tbe judgments were obtained were contracted on account of tbe partnership, and in tbe way of its business; and tbat executions have been issued on tbe judgments, and returned unsatisfied. It further states, tbat in 1846, Cogswell ceased to be tbe active and ostensible partner, Kcme becoming such ; tbe business of tbe concern, however, continuing tbe same as before; tbat at about tbat time Cogs-well, pretending to be insolvent, and being in dread of attachments against him, transferred, or pretended to transfer, all bis interest in tbe concern to Kane, receiving therefor a consideration wbicb is alleged to have been merely nominal, and tbat this transfer was made on the eve of attachments against Cogswell, for partnership debts, being about to be levied on tbe partnership property; tbat this property, or tbe avails of it, is now in tbe bands of Kane, and is in equity bable to the payment of tbe judgments, and tbe bill seeks to subject it to tbat purpose. Tbe bill also claims tbat Kane, having been originally bable with Cogswell, as a partner for tbe considerar tion of ab tbe judgments, and having now in bis possession ab tbe assets of tbe co-partnership, is personaby bable to a decree for tbe amount of tbe debts, and wbicb decree, among other things, it prays.

This bib has been taken as confessed, against Cogswell. Kane has demurred, and has assigned as special causes of demurrer:

1st and 2d. Tbat tbe writs of fieri facias on tbe several judgments were not returnable on tbe first day of any term of court, nor were abowed by any order of tbe judge, to be made returnable on tbe days on which they were returnable; nor were returnable on any day on wbicb by law they could be made returnable without such order, and tbat they were therefore void.

3d. Tbat tbe bbl sets up tbat the defendant Kane was Cogswell's partner, and jointly bable with him to tbe com-plateante, at the time of the accruing of the indebtedness, and of the recovery of the judgments, and that, 'therefore, the complainants have a complete remedy at law, and, consequently, none in equity.

4th. General want of. equity in the bill.

Several other causes of demurrer have been assigned, or have been attempted to be assigned, ore terms, on the argument of the appeal.

For the understanding of this demurrer, it is necessaiy to refer to the bill more particularly than has been done in the general summary already given. It states that all the judgments, except that in favor of the complainants, Van Burén and Churchill, were obtained in the Milwaukee county circuit court, on the 3d day of September, 1849, and on which writs of fieri fiadas were issued the fifth of that month, returnable the eighth. And that the judgment in favor of Van Burén and Churchill was obtained in the late territorial district court of Milwaukee county, the eleventh of May, 1848, and on which & fieri facias issued September 20,1849, returnable .the next day.

To this last judgment the objection is interposed, ore tenus, that at the time of its rendition, May 11, 1848, there was in fact no territorial district court of Milwaukee county — the territorial government, with all its machinery and incidente, having been abrogated by the adoption by the people of the state constitution, in March preceding, and that, therefore, the judgment is absolutely void, as being coram non judice.

It is to be borne in mind, that though our state constitution was voted upon and adopted by our people, in March, 1848, it was not sanctioned by congress, and the territory admitted into the union as a state, until the 20th of May following.

The objection to this judgment of Van Burén and Churchill, raises the question, whether the adoption by our people of then state constitution did, in fact, of itself, abrogate the territorial government, and thus, ipso facto constitute us a state; or, whether that political change was effected only by congress sanctioning our constitution, and admitting ns into the Union ?

This is a subject which is now convulsing the nation, but it is one on which I do not entertain, and never have had, a doubt.

I know no wilder or worse political or legal heresy, than this new-fangled doctrine of a territory constituting itself a state, and being, at the same time, within and without the nation. The proposition involves a confusion of ideas, and cannot be expressed without a solecism in terms. Could such a thing be conceived and be carried into actual practice, it would be attended with the worst confusion, and the most disastrous results; first anarchy, and then the destruction of the federal constitution. By no means intending any disrespect to the very able and candid counsel who have argued for the defendant, I cannot countenance, even by an argumentative denial, any such doctrine. It is of the same school, and involves the same principles as that of the right of secession— in plain, but bad English, the right of nullification- — a doctrine which has had but few disciples in our countiy, and none where free air is breathed; and of the two I think it the worst. Politicians even such as approach the grade of statesmen, may assert this doctrine, and pretend to believe it, and,

“Convincing others, half convince themselves;”

but no American judge, sensible of the obligations of his oath, and of his duty to our whole country, can give it any sanction. In our political system a territory can become a state only by the action and assent of the national government, and there is not, and cannot be, any such thing as an American state outside the federal Union. With us, and probably with no people or government, is a claim of protection, equality and fraternity recognized, which is accompanied with a disclaimer of dependence, obligation and allegiance.

Our territorial courts and all the other machinery of our territorial government were in the full legal and effective exercise of their appropriate functions, until, on the 29th of May, 1848, the United States congress, by approving of our constitution, and admitting us into the Union, emancipated us Rom provincial pupilage, and made Wisconsin an integral part of the American republic.

We therefore hold that Van Burén and OhurcivUVs judgment, as far as the objection of want of jurisdiction in the district court is concerned, was valid, and that all judgments obtained in the territorial district courts up to May 29th, 1848, if in other respects unobjectionable, are also valid. What may be the virtue and condition of judgments obtained during the interregnum between that time and the 28th of August, when the circuits went into operation, it is not necessary, nor is it proper to decide.

The first cause of demurrer assigned on the record is, that the executions were returnable out of term, without an order having been first obtained from the judge for that purpose, as required by the statute. Waiving the objection that this demurrer is speaking, in setting up matter not contained in the bill, the answer is, that this court cannot take notice of such an irregularity. Williams v. Hogeboom, 8 Paige, 469. The executions were not void, but at most voidable; and the proper course for the defendant, if he wished to be relieved from them, was to have applied to the court from which they issued to set them aside.

A further cause of demurrer was attempted to be assigned here, though not in the court below, that the judgment in favor of the complainants, West, Oliver and Oharles, does not appear from the bill to have been founded on a partnership debt. Without deciding whether a demurrer, ore tenus, not resorted to on the argument below, can be entertained here on appeal, we think, taking the whole context of the bill, that this debt is in fact stated to have been that of the partnership. But whether this be so or not is immaterial, as we are of opinion that the whole of the partnership property, if liable at all, is as much, liable to judgments against Cogswell, the only ostensible partner, for his individual as for his co-partnership indebtedness. And this brings me to the consideration of the only question of principle (except that of the jurisdiction of the late district courts) involved in this case; and that is: Is the property belonging to two partners (one of whom is dormant and unknown), in their co-partnership capacity, liable on a judgment against the visible partner ?

It'is remarkable that upon a question like this, and which commercial transactions must or might have often given rise to, but little authority is to be found.

The general doctrine no doubt is, that personal property in the possession, and subject to the control of the debtor, and of which he is the ostensible owner, is liable for his debts. This rule, it is true, is subject to many exceptions, some by the lenity and policy of the common law, and more by fraudulent legislation ; but among these exceptions I am not aware that the latent right of a dormant partner is one. To say nothing of the original character of the debt, whether it may have been in fact contracted as a private one, or on account of the partnership, and in the course of its business, such a withdrawing from process of the debtor’s property, or of that of which he was the apparent owner, and on the faith of which it may be presumed the credit was acquired, is not permitted, either by the common law or by any statute. It is a palpable fraud; and though by common-law process the creditor may have redress by selling the property, and contesting the legal right in a subsequent action, yet, where the parties confederate and have involved it in such disguise and confusion that an execiition cannot readily reach it, I can conceive of no possible objection to a court of equity lending its aid. It is the right of the creditor to invoke that aid, and the duty of the court to grant it.

■ Now, what is this case? The defendants, Cogswell and Kane, form a partnership in 1844 (I lay out of view all badges of fraud in the inception of the partnership, the motives for Kane's being kept in the background, and the roguish correspondence appended to, and made part of the bill), by which they engage in mercantile business, Oogswell to be the known and ostensible partner, and Kane a secret aud unknown one, the business to be conducted in the name of Oogswell alone, but for the equal and joint benefit of both. Under this arrangement they continue in business for years, the ostensible partner contracting large debts in his own name, but -for the benefit of the partnership, among which debts are the judgments, to enforce the collection of which this bill is filed. After these debts, or some of them, had become due, and attachments had been issued against Oogswell, and were about being levied, he transfers, or attempts to transfer, the whole of the partnership property in his possession to his secret partner, Kane, without any consideration, or any actual change in their relations, as a mere manoeuvre to defraud, hinder and delay their creditors by making Kane, instead of Oogswell, the ostensible owner and active partner. Judgments are obtained against Oogswell; executions — the validity of which for the purpose of this bill, we have already seen, is not to be called in question — are issued, and the sheriff, finding no property in the hands of Oogswell, returns them nulla bona. The specific property transferred by Oogswell, or its avails and equivalent in the shape of real estate, it is alleged .is still in the hands of Kane.

The question then recurs: Is this properly, thus situated, subject in equity to the judgments against Oogswell f We think it is.

In the case of French v. Chase, 6 Green, 166, the chancellor of New Jersey held, that the prior right of a partnership creditor to be paid out of the common property, in preference to the separate creditor of the ostensible partner, did not exist in case of a dormant partnership, and that in such a case the whole of the partnership property in the hands of the ostensible partner was liable for bis individual debts. This doctrine, in tbe absence of conflicting or overruling authority —and it is difficult to conceive how there can be any — we regard as the law, and Ave give it our unqualified sanction.

This view of the subject disposes of the objection so confidently asserted, that a court of equity cannot go behind the judgment at law and inquire into its consideration. Eor, as has been already observed, it is wholly immaterial whether the debt was contracted by the ostensible partner in his partnership or individual capacity. And here I may remark, that the proposition that you cannot go behind the judgment and inquire into its consideration, is subject to many qualifications and exceptions. Cases arising under our insolvent and exemption laws are familiar and in point.

We therefore hold that the circuit court was right in deciding that Kane was bound to disclose and account for so much of the partnership property and its avails in his hands, as was formerly in the possession of Cogswell, while acting as the ostensible partner. And that in the meantime it was proper he should be restrained by injunction from disposing of it.

It has already been observed, that as tar as the bill seeks to subject the defendant Kane, personally, to a decree for payment of the judgments against Cogswell, it cannot be sustained. The complainants having elected to pursue Cogswell alone at law, and having merged their claims against the partnership in judgments against him alone, cannot now fall back upon a court of equity for the purpose of asserting their original right. The law on this subject is too well settled to be called in question at this day. Smith v. Black, 8 Serg. & R. 142. And so are all the authorities, with one solitary exception, and that is the case of Sheehy v. Mandeville, 6 Cranch. That case, great and deserved as is the respect and deference of the whole American bar and bench for the late illustrious chief justice of the United States, has never been regarded as law. It is one of the few — tbe very few — instances in which that great judge erred.

One ground of the appeal is, that the defendant should not have been ordered to answer fully. It is almost always as a mere favor that a party demurring, and whose demurrer has been in the whole overruled, is allowed to answer at all; and it is a matter of discretion with the court to impose such terms as the circumstances of the case may seem to warrant.

The decree of the circuit court must be affirmed, with costs.

Decree affirmed.


source: Caselaw Access Project

author: JacésoN, J. Stow, C. J.

license: Public Domain

text:
    The State ex rel. William H. Lord v. The Board of Supervisor of Washington County.
    1. Mandamus. — Where the right which is sought to he enforced is doubtful,, or the performance of the duty which is exacted reste in the discretion of the person or body of whom performance is required, a writ of mandamus will not awarded.
    3. Same. — Where this writ is applied for to enforce performance of a statutory requirement, the provisions of the statute and the precise nature of the duty to be performed must be so clear and distinct as not to admit of a doubt, or it will not be awarded.
    3. Same. — Where a statute required the supervisors of a county to let to the lowest bidder the construction of a good and commodious courthouse, etc., etc., at a particular place, and to be finished by a certain time, upon the plan and style generally adopted by the different eov/nties of this state, without providing for obtaining a site for such buildings : Held, that the duty thus imposed was of such an uncertain and doubtful nature, that a mandamus would not be awarded to compel the supervisors to let contracts and proceed to the erection of such buildings. {
    4. County shat. — The county seat of Washington county had been located at a particular place, and afterwards it was removed by an act of the territorial legislature to another place for the period of five years. Held, that after the lapse of that period, it would not revert to the place where it was so first located, unless further legislation should intervene to locate it there, as at the expiration of that time there would be no established location of it.

      5. The act prescribing the duty sought to "be enforced in this case, was entitled “an act to provide for the permanent location of the seat of justice of the county of Washington, and for the division of the same, and for the organization of the county of Tuscola.” Stow, C. J., while he concurred in the points decided, was of the opinion that the act was not void as embracing more than one subject (sec. 18, art. 4 State Const.); that the subject of the act was Washington county only, though it contained several provisions relating to it; that the true test in such cases is not the details of the law, but its general scope — its subject; that this provision of the constitution was directory,. not mandatory. But see Mills ¶. Ghwiieton, 29 Wis. 400; Evans v. Sharp, id. 564.
    (2 Ghand. 247.)
    APPLICATION for mandamus.

    . The relator, on the fifteenth day of May, 1850, applied to the chief justice for an order upon the supervisors of Washington county, to show cause on the first day of the next succeeding term of. the supreme court why a peremptory writ of mandamus should not issue, commanding them to proceed forthwith to let the contract for the erection of a court-house and jail, and fire-proof clerk’s and register’s office, at the village of Port Washington, in said county, and to proceed to the erection of the same -without delay, and to levy a tax to defray the expense of the same, as was required by an act of the legislature of the state, approved February 8, 1850, entitled “ an act. to provide for the permanent location of the seat of justice in the county of Washington, and fix the division of said county, and the organization' of the county of Tuscola.” An order to that effect was made by the chief justice, founded upon an affidavit made by the relator, and then presented to the following effect, to wit:
    “William H. Lord, of Port Washington, Washington county, being duly sworn, doth depose and say: That by act of the legislature of the state of Wisconsin, approved February 8, 1850, entitled “ an act to provide for the permar nent location of the seat of justice of the county of Washington, and for the division of the same, and for the organization of the county of Tuscola,” the board of supervisors of said county were directed to let tbe contract for building a courthouse and jail, and fire-proof clerk's and register’s office, at the village of Port Washington, in said county, on the first Monday of May, 1840, and to proceed to the erection of the same without delay; that the said board did meet in pursuance of said law, and organized itself by the election of a chairman, but wholly neglected and refused either to let the contracts aforesaid or to provide for any means for the erection of said buildings as aforesaid; but, as your deponent is informed and believes, refused to do so, because the members of the said board believed, or said they believed, the act aforesaid to be unconstitutional and void. Your deponent further states, that the said board met on the day succeeding the said first Monday, in pursuance of a call signed by a majority of the members, and, without taking any steps either to let the contract or provide for the erection of the buddings, as is by said act required, immediately adjourned without day. And your deponent further says, that he is informed and believes that the said board, or a majority of the members thereof, give out and assert that they should wholly disregard the requisition of the said act; and your deponent believes that, unless commanded by the mandate of the supreme court, they will continue so to neglect and refuse.”
    The board, of supervisors put in an answer in justification of thus doing, which the reporter is unable to obtain, and which it is apprehended is not material to be set out, inasmuch as the decision of the court does not involve the consideration of it. To this answer the relator demurred. Upon these proceedings the motion came before the court.

      M Q. Ryan and A. T>. Smith, for relator. '

      J. M Arnold and J. Holliday, for respondents.
   JacésoN, J.

An application is made to this court for a peremptory mandamus, to be directed to the board of supervisors of Washington coiinty, commanding them to proceed, under the act of the last session of the legislature, to let, to the lowest bidder, the contract for the erection of the county buildings, and to levy an additional tax upon the taxable property of the county for the puipose of defraying the expense and cost of their erection.

A writ of mandamus is the highest judicial writ known to our constitution and laws, and, according to 'long approved and well established authorities, only issues in cases where there is a specific legal right to be enforced, or where there is a positive duty to be and which can be performed, and where there is no other specific legal remedy. Where the legal right is doubtful, or where the performance of the duty rests in discretion, a writ of mandamus cannot rightfully issue. Kindall v. United States, 12 Pet. 613; 18 Wend. 89; 5 Binney, 103; 12 Johns. 416; 1 Cow. 423.

Tested by these principles of law, should the present application be granted ?

The following is the act which is sought to be enforced by this writ:

“ The board of supervisors shall, on the first Monday of May next, proceed to let, to the lowest bidder, the contract for the erection of a good and commodious court-house, upon the plan and style generally adopted by the different counties of this state, a good and sufficient jail, and good and commodious fire-proof clerk’s and register’s office, upon grounds in the village of,, Port Washington, to be located by the supervisors'of the county of Washington; said buddings to be erected and ordered during the summer of 1850, and finished by the first day of July, 1851; and for the purpose of defraying the expense and cost of erecting said buildings, the said supervisors are directed to levy an additional tax upon the taxable property of said county, in addition to the ordinary taxes of said county for the year 1850, equal to the amount of the contract price of said buildings.”

.'Various objections were raised by the respondents, and ably argued to this court, which it is not necessary to decide, among winch is the constitutionality of the act of 1850.

The court are all of opinion that the power to award the writ, in a case like the present, is clearly conferred by the constitution and laws of the state. Nor is there any division of sentiment in regard to the operation of the law of 1847, by which the county seat of Washington county was located at the village of Port Washington for a period of five years. There cannot be two separate and distinct locations at one and the same time; nor can there be a right of reverting or returning to a Ibrmer location, without an express law to that effect. In this case there is none.

The act of 1847 operated as an abrogation of all previous acts on that subject, and when the term of five year's expires there will be no established location of the county seat of Washington county.

It will be the duty of the legislature, on the happening of that event, to provide by law for the establishment of a new location, and that can be done without any conflict with the provision of the constitution regulating the removal of county seats. But until the legislature shall make some additional statutory provision touching the permanent or temporary location of the comity seat, itrnust be regarded as fixed at Port Washington. Sec. 8, art. 13, ¿¡oust.

The main objection to the allowance of the writ prayed for by the relator, arises from the vagueness "mid uncertainty of the law prescribing the duty of the respondents.

The board of supervisors were required, on the first Monday of May, 1850, to “ proceed to let, to the lowest bidder, the contract for the erection of a good and commodious courthouse.” No provision is made for advertising or obtaining proposals, and it might well have happened that there would be no bidders, in which case the respondents could not have let the contract in the manner required by law. Nor was there any provision made for the purchasing or obtaining a site for the county buildings; and it would seem to me to be unreasonable, if not impracticable, to compel the board of supervisors to contract for the erection of a court-house, jail and clerk’s office, without naming any lot or place for their location, and without its being known where, in fact, they were to be erected.

But I have much greater difficulty with another clause of the act.

The respondents are required to enter into a contract for the erection of a good and commodious court-house, “ upon the plan and style generally adopted by the different counties of this state.". There is no criterion that I am aware of, by which to determine what is the “plan and style generally adopted by the different counties of this state,” in the erection of their court-houses. It is believed that there are no two courthouses in the state which are alike in their form, material, dimensions and arrangements. Every member of the board of supervisors might have his individual opinion, and maintain with equal sincerity, that his plan and style approached the nearest to the “ plan and style generally adopted.” And the members of this court might be equally variant, in their own views upon the subject.

It is clear, therefore, to my mind, that there is not, in this case, on the part of the relator, a specific legal right to be enforced, nor, on the part of the respondents, a positive duty to be performed, and which can be performed.

While, therefore, in a case wherein the facts were such as to justify the awarding of a writ of mandamus, this court would not hesitate to interpose its authority to compel any individual or public body to discharge a duly, or perform an act required by law, I am satisfied that this is not one in which it would be safe or proper to exercise such authority. • . ■''

■ The writ must be denied.

Stow, C. J.

While I concur in denying the mandamus in this case, the mandatory part of the law being too vague to be thus summarily enforced, I do not think it becomes me, or my position, to permit the grave constitutional question which is involved, to pass unnoticed. That question, which is one of great importance to the people of Washington comity, and of great interest to the whole state, has been formally presented to our consideration, and it has been discussed with an ability and research never surpassed in this forum. It is the question in the case: the one which all parties are anxious to have settled, and for the determining of which this proceeding, as I understand, was instituted. I think it is the duty of this court to meet it at once, and to put it forever to rest. The other members of the court, however, take a different view of the subject, and the opinion which I now deliver, is my own alone. None of my,, brethren are responsible for it, nor is it to be regarded at all as a judicial decision or binding authority.

The county seat of Washington county, after having been for years the subject of controversy, and of various legislar tive action, was, by the act of 1847, p. 37, fixed at Port Washington, for the term of five years. This act repealed in its terms, “ all acts, or parts of acts, theretofore passed, which contravened its provisions.” \

The first inquiry then, is: What legislation did contravene the provisions of this act of 1847 ? I answer, unhesitatingly, all previous legislation affecting the location of the county seat. In the case of La Fayette county, argued at this term and already passed upon, we have held that the removal of a county seat, even for temporary purposes, to a new place, by necessary implication repeals the law locating it at the old one. That, as far as this question is involved, is precisely this case; for I do not suppose it can be contended, that a distinction is to be made between a temporary location of five years, and a temporary location, the term of which depended on a popular vote. In either case the location, for the time being, was unqualified, and of necessity inconsistent with a location at any other place. The most that can be said in both instances against the rights of the places thus possessing the county seat, is that in one case, the right was subject to be determined by legislative action after the specified period; and in the other, at any time by a popular majority.

Port Washington then was, at the adoption of the constitution, for the time being, the county seat; and was, as has already been held in the case of La Fayette county, within the constitutional provision — at least, until the expiration of the term prpvided by the act of 1847. A curious inquiry might here arise, whether this legislative location of five years was not by the constitution made permanent; but as I do not deem it material, in the view which I take of the act of last winter, 1 pass it by.

One of two things is certain: either that Port Washington had become, by tire constitution acting on the law of 1847, the permanent county seat; or, that after the expiration of five years, there would be no legal county seat, and that in the absence of any, the legislature would have the power, as in the case of organizing a new county, to locate one — the constitutional restriction not applying. If the first position is a correct one, there is of course an end to the real question involved in this case. But assuming the other position, the inquiry is then directly presented: has the legislature by its act of last session, made Port Washington the permanent county seat ? In my opinion it has. And all concede this to be so, if that act is constitutional. And why is it not ? Because it is said to be local; to embrace more than one subject; and not truly to express its object in its title, as required by the constitution in regard to private and local laws.

How this act can be said to be local, in a political and in the constitutional sense of that word, passes my understanding. It is a public law, concerning the police and municipal organization of the state. The state itself as an integral sovereignty is made up of lesser municipal organizations; the most essential and important of which is the county organization. An admirable system I and our greatest safeguard against the invention of modem despotism, centralization. A catastrophe by the way, of which democratic republics are in quite as much danger as are constitutional monarchies. Through the counties the sovereignty performs many of its most important acts. Its judicial functions are exercised through the, instrumentality of the counties; and through county officers the state revenue is levied and collected. Indeed, it is only by an aggregation of the counties, and the harmonious performance of them appropriate functions, that we obtain the idea of the sovereignty — the state. L’ Mat o’ est moi ! ' is an idea more foreign to the American mind than is the language of the despot who uttered it. The state, with us, is composed of lesser municipalities, and acts by and through them, and pervades them all; and counties, in a political sense, can no more be considered local, in reference to the state, than can the arteries be, in reference to the heart. The act makes provision for a new circuit court, whose jurisdiction, as I had occasion to remark in the case of Putnam v. Sweet, ante, is of the most plenary character ; and by requiring the erection of a county jail, provides, as the law now is, for a new state prison. Geographically the law is local, but politically it is not. . As well might it be said that a law of congress establishing a new collection district; admitting a territory into the Union as a state; or annexing a foreign nation to the republic, is local. Nay, indeed, in such a sense it is difficult to conceive what is not local.

But admitting, for the purpose of argument, the law under consideration to be local, what is the objection to it? That it contains more than one subject. More than one subject ! How so ? What is its subject ? Is it not that portion of the territory of the state known as Washington county ? And though it may embrace many and various provisions, is not Washington county its proper and only subject ? Clearly so. Subject, says Webster, is “that on which any mental operation is performed; that which is treated or handled.” Washington county, its police, its officers, its county seat, its courts, its county buildings, and, in a particular contingency, its division, was the subject of the law. The various details of the law were not its subjects. There is no plural in its subject. The object that it contemplated, the thing it acted upon, the locality it particularly concerned — Washington county — was its subject. It will not do to refine away laws in this manner. Few statutes could stand such a hypercritical test. An act conferring a pension on the widow, and maldng provision for the support and education of the infant children of a meritorious soldier killed in the public service ; an act dividing a town, and providing for the organization of a new one (which is exactly this case) ; an act making appropriation to one person for fire-wood, and to another for sawing it, for the use of this court-room, and almost every other act which, under the contracted sense assumed of this being a local law, could be called local or private, would be deemed unconstitutional; and the persons receiving money or performing service under it would be held liable to an action to refund, or to answer in trespass or otherwise for their acts. No; the true test is, not the details of the law, but its general scope, its subject. And if it be in its nature one — such a matter as the mind acts upon by one operation, and need not necessarily be disintegrated in order to be intelligible, then it is one subject, and is not obnoxious to the constitutional interdict.

And here I am met with the objection that, though this law may not be unconstitutional for. duplicity, it is so, being local, because its subject is not correctly expressed in its title.

I have had no experience in legislation, and my studies have not been particularly directed to the minutiae of constitutional law; but I confess that this objection, that the act does not in its title correctly express its subject, has taken me by surprise. It seems to me that the constitutional provision is merely directory to the legislature, and is not the subject of judicial review. To regard it in any other light would be to make the judiciaiy a supreme and despotic censor of the legislature in regard to all that mass of legislation which is not general and public. It cannot be that the constitution, its framers and adopters, intended to confer this censorious and monstrous power upon the judiciary, especially as that same constitution had taken care that each department of the government should be constituted and remain, independent and co-ordinate in its sphere, and the judicial to be removed from those popular influences which may veiy properly address themselves to the legislative department. But suppose it is otherwise — suppose this court, and for that matter eveiy other, from a justice of the peace upwards, is invested with the power of pronouncing a law unconstitutional because its title does not correctly state its subject, what is the meaning of the constitutional provision ? It is that the title should indicate— should call the reader’s attention to the nature of the law; and if so, that is enough. The constitution cannot mean, as the respondent’s argument assumes, that to make the law valid, the title must be a correct syllabus of. it. All that can be required is, that the title should correspond with, and not be incongruous to, the provisions of the law. The probable object of the constitution was to guard members of the legislature from unwittingly voting for an objectionable law under a captivating title. It is simply directory, and ought not to be regarded as a kind of condition precedent, on which the validity of a law depends. In any other view of the subject, in order to be safe, it would be necessary for the title to recite the whole body of the act — a piece of bungling machinery that I think the common-sense statesmen of our day would hardly try to set in operation.

There is no magic in a name. The subject-matter of the law is Washington county — that territory, that part of the state known as suck, and it is immaterial what title the act bears, as long as its provisions are intelligible, practicable and constitutional.

In my opinion the law is constitutional; and though this court cannot now enforce it, I think the supervisors and people of Washington county, as good citizens, should in good faith carry it into effect.

Mandamus denied.

Lakhabee, J., did not hear the argument or participate in the decision.


author: Hubbell, J.

text:
    Dean and others vs. Pyncheon.
    1. Mechanic’s Lien. — Under the act of 1839, in relation to mechanic’s lien, a remedy was provided entirely distinct from and in addition to the common law right of action, and the lien when perfected was in the nature of a mortgage, and the same right of redemption existed after a sale, and if the owner of the building was not the owner of the land, still the lien hound any interest he had in it.
    2. Same. — The act of 1842 secures the debt on the building and provides for a remedy by common law action, with certain specific rights in favor of the mechanic, and proceedings to enforce the lien are mainly dependant upon general principles applicable to common law actions.
    3. Same — Jtjd&ment.—The creditor has his election to proceed to enforce his lien by scire facias against the debtor or owner of the building, or by personal action against the debtor and his legal representatives, and in either case there is to be a judgment as in personal actions at common law for the recovery of a debt; but upon a proceeding by scire facias, execution can go only against the property bound by the lien, but in the proceeding by personal action the judgment binds also the property of the debtor, as in the case of an ordinary judgment at law; in either case the judgment should be an ordinary judgment, and the law will be so construed as to give it effect for the purposes intended.
    4. Same. — Although the act of 1842 speaks only of the building, yet the lien binds all the debtor’s right and interest in and to so much of the ground it stands on, as may be necessary for its ordinary occupation and use. If the owner of the building has no permanent interest in the land, the title to the building will pass, and the purchaser may enter and remove it.
    5. Execution Sale. — A mere possessory right in and to real estate is the subject of sale as real estate.
    6. Same — Ejectment. — Ej ectment cannot be maintained upon a sheriff’s certificate of sale, but the purchaser may before deed, maintain an action for an injury to the real estate so sold.
    7. Mechanic’s Lien Redemption. — In case of a sale under an execution on a mechanic’s lien under the act of 1842, like redemption is allowed as in other cases of sale of real estate on execution.
    (3 Chand., 9.)
    ERROR to the Circuit Court for Dane County.
    This was an action of ejectment brought b}r the defendant in error against the plaintiffs in error, to recover the possession of certain premises and the buildings erected thereon, consisting of a store and dwelling house.
    At the trial, Pyncheon, the plaintiff, offered in evidence a record of a judgment in his favor .against William W. Stewart, defendant therein in common form; next, an execution issued upon such judgment, and a sale, by virtue of said judgment and 'execution, of the store and dwelling house before mentioned ; by which execution it appeared that the plaintiff before the entry of his judgment, filed his petition and lien for labor and materials for the buildings before mentioned, situated upon the land upon which they stood at the time of the sheriff’s sale; that the property was bid in by the plaintiff, and the sheriff gave to Pyncheon a certificate of the purchase and sale, and filed a duplicate in the proper office. The plaintiff then offered in evidence a deed by the sheriff, issued upon the certificate, dated on the 10th day of October, 1849. To the reading of which in evidence, the defendants objected, but it was allowed by the circuit judge to be read in evidence. The plaintiff then offered in evidence a lease from one Wilson to.Bell and Stewart, including the premises on which the buildings before mentioned were situated, for the term of five years. It was also proved that Stewart entered upon the premises in pursuance of tbe lease aforesaid, and erected tbe buildings mentioned in tbe declaration, which at the time of the trial were occupied by the defendants Seymour and Varney. It was also' proved that B. B. and N. W. Dean, occupied the buildings in question until July, 1846. It was also proved that the defendants, Deans, had erected upon the premises a building connected with the one upon which the judgment lien was entered and which for a time was occupied by them. The defendants then applied for a non-suit, which was denied ; they then offered in evidence a deed from W. "W. Stewart and wife, to B. B. Dean, dated July 12th, 1845, of a part of the premises in question. They also offered in evidence another deed of a part of the premises in question, which was, on the objection of the plaintiff, rejected. The plaintiff then offered in evidence a petition for lien against W. W. Stewart, filed in the late district court for Dane county, in April, 1846, the reading of which was objected to by the counsel of the defendants; but it was admitted in evidence, and the defendant’s counsel excepted thereto, on the ground that it would not be rebutting but cumulative testimony. The plaintiff also offered in evidence a scire facias issued in favor of the plaintiff against W. W. Stewart, relating to the lien filed by the plaintiff against Stewart, on the rendition of the lien judgment in favor of the plaintiff. This evidence was objected to as cumulative, but was admitted by the court. The defendants requested the court, among other things, to charge as matter of law, to wit: that the plaintiff' could not recover on his first count, because it shows that the lease of the premises expired before the time of trial; that the sheriff’s certificate of •sale of the premises did not comply with the statute ; that no action to obtain possession could be maintained upon a sheriff’s certificate; that the plaintiff, by the sale of the premises, acquired no right to the soil on which the buildings were erected, but to the buildings alone ; that while the buildings remained on the lot, the plaintiff had not such possession or right of possession as would enable him to recover in the action.

      The court refused to charge as requested, and the defendants excepted.
    The jury found in favor of the plaintiff, and that he was entitled in fee simple to all the premises described in his declaration. Before judgment was rendered the counsel for the defendants made and filed a motion to set aside the verdict, upon the ground that it was general, against all the defendants, whereas it appeared that the defendants, -Deans, at the commencement of the suit occupied no part of the premises to which the plaintiff’s lien attached ; that it did not appear in evidence that there was any joint occupancy by all the defendants; that the verdict did not specify the duration of the term for which the plaintiff is to hold the premises. The court denied the motion and judgment was entered for the plaintiff.

      Gatlin & Abbott and A. L. Collins, for plaintiffs in error.
    1st. A deed executed subsequently to the time of the commencement of a suit in ejectment is not evidence of title in the plaintiff at the time of the commencement of the suit. Ter. Stat. of Wis., 250; Adams on Eject., 32, note; 6 Binn., 454; H. & Johns., 164; 9 Watts, 64.
    2. One of several defendants in ejectment not having the relation of tenant to the plaintiff, or those under whom he claims, may show title in himself, or in another, to defeat the action. 16 Johns., 200 ; 1 Marsh, 251; Adams on Eject., 32 ; 9 Cow., 86; 1 Hill, 138 and 128; 12 Wend., 105.
    3. If it appears from the declaration that the estate of the plaintiff, or those who claim under him, has expired, before the , trial, he cannot have a general verdict against the defendant. Stat. Wis., 223, § 27; 18 Johns., 295; 8 Yerg., 121; 5 Pick., 124; 3 Pet., 43 ; 6 Wend., 666; 6 Binn., 62.
    4. A certificate of sale by a sheriff is not evidence of title in the holder, in ejectment. 2 Caines Rep., 61; 20 Johns., 3; 8 Dana, 165.
    5. Trover will be maintained for the building, but not ejectment. 9 Pick., 297 ; 5 id., 487 ; 1 Hilliard on Real Estate, 5.

      6. Where the premises sought to be recovered in ejectment are occupied by several, independent of each other, and a general verdict is given against all, it should be set aside on motion. 21 Wend., 593; 12 id., 170 ; 5 Johns., 278; 2 id., 438.

      Geo. B. Smith, and Botkin & Knapp, for the defendant in error contended,
    that the return of the sheriff that he had sold the property and executed to the purchaser a certificate, in accordance with the statute, and the filing of ' a duplicate thereof in the proper office, gave a good cause of action to recover the possession of the premises. And to this point cited the case of Burton v. Pond, 5 Day, 160; Rev. Stat., 234; 2 U. S. Digest, 143, § 600; Fenwick v. Floyd, 1 Har. & Grill, 172; 12 Johns., 213 ; Den v. Morse, 7 Halst., 331.
    2. That a deed or note in writing signed by the sheriff, descriptive of the property, and stating to whom it was sold and the sum for which sold, would pass the title, and was sufficient to take the case out of the statute of frauds. Simond v. Gatlin, 2 Caines, 61; 2 Johns., 248; 8 id.: 520; 3 Caines, 189.
    3. That in an action of ejectment by the purchaser, against the defendant in the execution, or those claiming under him, the plaintiff need not show any title other, than the judgment, execution, and sheriff’s conveyance. Lessees of Cooper v. Galbraith, 3 Wash. C. C. R., 548-7; 3 Caines, 188 ; 10 Johns., 223 ; 2 Yates, 443 ; 5 Binn., 270; 4 Johns., 22; 2 Binn., 468; 8 Term, 2; 3 Watts, 223.
   Hubbell, J.

The defendant in error brought ejectment in the court below, for certain premises described as the Arcade Buildings,” in the village of Madison. • His claim was founded on a sheriff’s certificate of sale under'a judgment in the late district court for Dane county ; and this judgment grew out’ of a mechanic’s lien for services rendered in the construction of the building. The case involves a discussion of the statute of the late territory, providing for mechanics’ liens, and the nature of the judgment rendered thereon arid the validity and effect of a sheriff’s sale and certificate of sale under execution upon tbe judgment.

No decision of tbe supreme court of tbe state or territory, has been made upon tbe points in question; and various opinions bave prevailed at tbe bar. Tbe importance of tbe subject will excuse an investigation of tbe general principles upon which tbe decision in this case is founded. It is admitted that tbe buildings in question were erected upon leased land, with permission to the tenant to remove them at tbe end of tbe term ; and that they were built upon blocks not fastened into the soil. And further, that tbe sheriff advertised and sold tbe defendant’s right and interest in the buildings known as tbe “Arcade Buildings,” and executed to the purchaser a certificate of sale, under bis band and seal, in tbe ordinary form. Whether the buildings were the subject of sale, as real estate, and whether the certificate of sale passed the title ; or whether the right of redemption attached, and a formal deed in pursuance of the general statute relating to sales of real estate, was necessary, after the time of redemption expired, are questions to be considered.

This case arose under the lien law of 1842. It will be necessary, for a proper understanding of the case, to. examine the prior law of the territory providing for mechanic’s liens — the act of 1839. Both statutes aimed at the same object, but by essentially different means. -The first act (Stat. 1839, p. 141), made provisions for securing and enforcing a lien in favor of all persons who should, under contract, furnish labor or materials, in erecting' or repairing buildings. It was a remedy entirely distinct from, and additional to, the common law right of action. The act particularly enumerates the parties who may avail themselves of its provisions; prescribes the form and mode of ascertaining the amount of each claim, and directs a summary sale of the building for the payment of the debts, including 'the land covered by the building. The lien, when perfected, was in the nature of a mortgage, and after sale, the same right of redemption was given, as in cases of mortgage sales under the statute. If the owner of the building was not the owner of the land, still the lien bound his entire estate and interest in it. This act was specific, certain and intelligible. The act of 1842, which was substituted for it, was more brief, general and indefinite. Like its predecessor, it secured the debt by making a lien upon the building; but it made no mention whatever of the land covered by the building, and provided no mode or form of a sale or conveyance of the property. Both acts contemplated proceedings in court; but proceedings radically different. The first made the “lien,” 'when perfected, a mortgage; the other made it a judgment; the one was a mere statutory remedy, leaving the common law right of action unimpaired ; the other adopted the common law action, adding certain specific rights, in favor of the mechanic. Proceedings under the first were exclusively dependent upon the statute and must conform strictly to it; under the last they were mainly dependent upon general principles applicable to common law actions. Thus construed, the latter act seems to me not only clear and intelligible, but exceedingly condensed and comprehensive. When the preliminary steps necessary to secure the right of lien were taken, the person having a claim filed agreeably to its provisions,” might, “ at his discretion, proceed to recover it, by personal action ” against the debtor and his legal representatives, “or by scire facias against the debtor or owner of the building.” If there was no appearance, there was to be a judgment by default, but if there was an appearance and defense, then the like proceedings “ as in personal actions for the recovery of debts.” In either event, there was tobe a judgment; a “judgment as in case of summons; as in personal actions for the recovery of debts;” which I understand to be a common law judgment."

To give these provisions any other construction would seem to me the perverting of language which, from time out of mind, has had a fixed legal meaning. But no judgment rendered, in a proceeding by scire facias, should warrant the issuing of an execution except against the building or buildings upon which the lien existed. The party has his option, to make it a general judgment with the particular lien annexed, or to confine his judgment to the specific subject of the lien, without binding generally the person or property of the debtor. But with reference to the property bound by the lien, the judgment was like any other judgment. It must have the properties and incidents of a common law judgment, or the language of the statute would be unintelligible, and its provisions nugatory. What, then, is the consequence? Every common law judgment results in an execution. This is what Lord Bacon terms “the life of the law,” and Lord Coke, ‘ fructus, finis ei effectus legis.” and this is doubtless what the legislature meant by “ personal actions for the recovery of debts;” and if an execution, then a sale also. It is contended, however, that by the express terms of the act, the right of sale is confined to the building only. And that it can have no further or greater scope, is argued from the fact that the repealed act jpf 1839 provided expressly for a sale of the whole interest of the debtor, both in the building and the land; while the substituted- act speaks only of the building. ■ The distinction between the two acts must be borne in mind. The one gave a purely £ tatutory remedy; the other case of summons.” all the real estate Such of the provided for “a judgment, as in judgment, by general law, binds debtor. The proceeding by scire facias is not against the building onty, but against the debtor [or owner of the building.” The execution only, is limited to the building. The character of the judgment is not necessarily scribed to the execution. The wh statute, as has been shown, requir be an ordinary judgment; and, u law must be so construed as to giv the purposes intended. The whol cure payment of the mechanic’s cl affected by the limits pre-)le reason and intent of the that the judgment should pon general principles, the s it legal force and effect for object of the law is, to se-aim by a judgment against the debtor and a sale of his interest in the building. In all ordinary eases, that interest is coupled with and dependent upon an interest in land. In fact, the mere possession of the ground, for the erection and construction of a building, carries with it, inseparably, an interest in the ground. Possession of land constitutes real estate, and the debtor’s possession is a right and interest which may be sold under execution against his real estate. 8 Caines, 189; 16 Johns., 192; 18 id., 194; 9 Cow., 73 ; 3 Paige, 220.

It is true that a building may be regarded in law as a chattel ; and, in many cases, it passes as a chattel, but where it occupies the ground and the owner has the right to keep it there, or to go upon the1 land and move it off, he has an interest, which, coupled with the building, may be levied upon and sold, as real estate.

In all ordinary oases of liens arising in the construction of a building, it would be a mockery to turn the claimant over to a sale of the mere building without the.right to enter upon or occupy the soil. The general rule of law is, that the sale of the building is the sale of the possession, and carries with it the whole right of the judgment debtor, whatever it may be, in the premises. 3 Caines, 188; 3 Paige, 220; 9 Cowen, 84. And this is the rule of both common sense and common law, as applied to the act of 1842. It does not assume to give the mechanic a remedy and then make him a trespasser the moment he attempts to assert or enforce it. It gives him a judgment and execution under which the sheriff may sell and purchaser may take all the debtor’s right' and interest, not only in the building, but in so much of the ground it stands upon, as may be necessary for its ordinary and proper occupation and use. Nothing short of this is consistent with the fair intent of the law; and if the defendant in error got less than this, he ought to have brought replevin for his chattel, instead of ejectment for his real estate.

I proceed to inquire whether a. deed was necessary, oi; whether the sheriff’s certifícate passed the title of the judgment debtor. Before the passage of the acts relating to sales of real estate under judgment and execution, there cannot be a doubt that the certificate would have been sufficient. It was a memorandum in writing declaratory of the fact of the sale, which took it out of the statute of frauds. The case of Simonds v. Catlin, 2 Caines, 61, is conclusive on this point; but the law of the state in force at the time of the sale, expressly declares, that “ the right and title of the person against whom the execution was issued to any real estate which shall be sold thereby, shall not be divested by such sale until the expiration of twenty-seven months from the time of such sale; and if such real estate shall not have been redeemed áh herein provided, and a deed shall be executed in pursuance of a sale, the grantee in such deed shall be deemed vested with the legal estate from the time of the sale on such execution, for the purpose of maintaining an action for an injury to such real estate.” Stat. 1839, sec. 81, p. 286; Session Laws 1840, sec. 7.

If, as I have shown, the judgment in this case was an ordinary judgment, and the execution was the ordinary execution “in personal actions,” then it follows that the title of the judgment debtor to the real estate in question was not divested by the sale, until the lapse of twenty-seven months, and the execution by the sheriff of a deed to the purchaser. This is but a corollary to the proposition established, and is conclusive of the ease. On the trial at bar, I was induced by the fact that no decision had been made upon the lien law of 1842, and by my anxious desire to secure to the defendant in error all the rights and privileges intended to be conferred by it, to admit the sheriff’s certificate as evidence of title. But the opinions of my brethren on the bench, and a more careful examination of the principles of law applicable to the case, have ■satisfied me that the ruling was erroneous. There must be a mew trial granted, and the case must be remitted to the circuit court ior such proceedings as may be necessary to do .justice between the parties.

Having decided the case upon this point, it is unnecessary^ for the court to pass on the other questions presented by the plaintiffs in error.

Judgment reversed accordingly.


author: KNOWLTOír, J.

text:
    Strong vs. Winslow and others.
    Appeal from Probate Court. — In order to maintain an appeal to the circuit court from the prohate court, ip the matter of the estate of a deceased person, the party appealing must show himself interested in the estate, notwithstanding the words of the statute are “ when any person shall be desirous of appealing from any order,” etc., for, upon common and well settled principles, no person can interfere, unless he has or can show some legal interest in the subject matter. Amory v. Amory, 26 Wis., 152.
    (3 Chand., 21.)
    ERROR to the Circuit Court for Portage County.
    The case showed that letters of administration were granted upon the estate of William H. Johnson, to the defendants in error, by the judge of probate of .Portage county, on the 27th day of November, 1848, on the petition of the defendants in error, and they became invested with that office.
    On the 19th day of March, 1849, the plaintiff in error perfected an appeal from the appointment aforesaid, to the circuit court for Portage county. At the return of the appeal, the plaintiff in error suggested a diminution of the record in the following particulars:
    1. That the papers returned by the judge of probate do not show what evidence there was before him that Johnson was deceased ; or that there was any evidence that he died intestate.

      2. That the application of appellees, to be appointed administrators, was not returned.
    . 8. That it did not appear by the return, what, or whether any evidence was produced, that appellees were either next of kin, or creditors of the deceased.
    4. That the return did not show that the next of kin of Johnson had either refused, or for thirty days after his decease had neglected to take out letters of administration.
    5. That it did not appear whether the next of kin of Johnson were ever cited before the probate court to take letters of administration.
    6. That it did not appear that any day or place for the holding the probate court had been fixed for making orders and decrees; nor whether any public notice was ever given of any such day or place.
    At the term of the circuit court next after the appeal, the appellant prayed that a further return be made by the judge of probate in the particulars above referred to, and gave the court to undei’stand there were the following questions of fact necessary to be determined in deciding the appeal, and to be tried by a jury, to wit:
    1st. That William H. Johnson did not die intestate.
    2d. That Lewis Johnson was and is next of kin to William H. Johnson, and of full age.
    3d. That said Johnson left no wife at the time of his decease.
    4th. That Lewis Johnson, next of kin, was never cited to appear before the judge of probate to take letters of administration.
    All of which matters were prayed to be inquired of by the country.
    The plaintiff in error had the cause continued ; and in August following a further hearing was had, when the circuit court ordered and adjudged that the appeal be dismissed, and that appellant pay the costs of his appeal. And he prosecuted a writ of error, and in this court it was urged:
    1st. That the circuit court erred in dismissing the appeal.
    2d. That it erred in not making any - decision upon the suggestion of the diminution of the record of the probate court.
    3d. That the circuit court erred in not directing issues to he made up, on the issues of fact presented by the plaintiff in error.

      Moses M. Strong, for plaintiff in error,
    in propria persona, insisted, that by the Territorial Statutes, page 297, § 6, any person has the right of appeal from a court of probate, whether he should in himself have any interest in the subject matter of the proceeding or not; and that the proceedings of the court might be reviewed and reversed, at his instance, unless they be found to have been in conformity to the statute, and argued in support of the errors assigned.

      A. L. Collins, for defendant in error.
   KNOWLTOír, J.

No reason appears sufficient to authorize the reversal of the judgment of the cireuit court. The plaintiff in error, in the court below, did not show or offer to show that he had any interest in the estate, the subject of controversy, or that any wrong had been done, for which he could claim redress in a court of justice. The principle of law is too well settled to require a reference to authority upon the subject, that in order to be heard, the party seeking the hearing must show, or at least offer to show, that he has sustained an injury, or that he has a right that ought to be enforced in a judicial tribunal.

In this case it is not even pretended that the plaintiff in error has any right to or control over, the whole or any portion of the estate of Wm. H. Johnson, deceased; on the other hand, it appears that Lewis Johnson, if any one, was the person to complain.

The appellant contends that the words of the statute are so broad, that a person need not slrow any interest in the subject matter of the estate to entitle him to an appeal. This proposition is somewhat startling; such a construction would make the legislature appear ridiculous in the extrema Courts of justice never open the door to individuals and permit litigation, for no other reason than that some one wishes to know what he can do with others engaged in business, which in no wise concerns him or affects his rights. The ministers of justice ought never to consume time for the mere purpose of satisfying the morbid appetite of idle curiosity. It cannot be contended with any degree of plausibility, that the language “ when any person shall be desirous of appealing from any order or decree,” etc., (Statutes of 1839, page 297, sec. 6), should be construed to mean that persons not aggrieved or in any way affected either in their persons or their rights should be entitled to invoke the aid of an appellate court for the purpose of reviewing the proceedings of a subordinate tribunal; yet this is the only thing relied on by the plaintiff to sustain his case. Courts will, if possible, construe statutes so as to give the effect evidently intended by the legislature, without doing violence to the language used in the act; and statutes in pari materia, are- all to be considered. We are clearly of the opinion 'that a person having no interest, nor in any way affected by the adjudication of a probate court, is not entitled to an appeal within the statute. The judgment should be affirmed, with costs.

Judgment affirmed.