text:
    United States vs. Salter.
    1. CRmmAL law — writ os error. Where the accused has heeu tried upon, an indictment or information and acquitted, a writ of error will not lie at the instance of the prosecution to reverse the judgment.
    2. Same. If a court quashes, an indictment or arrests judgment erroneously, a writ of error may he prosecuted in such case, at the instance of the prosecution, to reverse the decision.
    See Oontra State v. Kemp, 17 Wis. 669.
    ERROR to the District Court for Iowa County.

      Salter was indicted by the grand jury of Iowa county for forgery, and upon the trial the district attorney offered certain evidence in support of the indictment which was rejected by the court, to which decision exceptions were taken. A verdict of acquittal was rendered, and the district attorney sued out this writ to correct the errors of the court below, in rejecting the evidence offered by the prosecution.
    The cause came up for argument at the July term, 1842, when the question was suggested by the court, whether a writ of error could be sustained at the instance of the prosecution after a verdict of acquittal had been rendered. The matter was submitted to the court, and taken under advisement until the present term, when the court dismissed the writ.

      Wm. JR. Smith, district attorney, for plaintiff in error.

      F. J. Dunn, for defendant in error.
   Miller, J.

The defendant was indicted in the district court of Iowa county for forgery. At the trial the district attorney offered to give certain facts in evidence, for the purpose of making out the case, which were rejected by the court. The defendant was acquitted and discharged. A writ of error was sued out by the district attorney, and this decision of the court is assigned for error.

The first question to be settled is, should this court take cognizance of this case ?

The practice of revising cases by appeal and writs of error, on the part of the prosecution, upon various decisions of the inferior court, upon matters of law, is quite common, but not after a verdict of not guilty. In the case of Commonwealth v. McKisson, 8 Serg. & R. 420, the defendants were indicted for a conspiracy to cheat. On motion of the defendants, the indictment was quashed, upon which the commonwealth sued out a writ of error, and the supreme court reversed the decision, and directed that the record be remitted to the court below with orders to proceed on the indictment. In the case of Commonwealth v. Taylor, 5 Binney, 277, it appears that the defendant had been convicted, and the court arrested the judgment on the ground that the offense charged was not indictable; and the record was brought to the supreme court by writ of error, where the judgment was reversed, and the record was remitted to the quarter sessions, that they might proceed to give judgment against the defendant. The same practice is pursued in New York, but in a more formal and technical manner. In the case of People v. Stone, 9 Wend. 182, the indictment, on the motion of the defendant, had been quashed, and at a subsequent session of the court, the district attorney, for the purpose of enabling him to remove the case to the supreme court by writ of error, was permitted to make a record, stating judgment to have been rendered for the defendant as on demurrer to the indictment. The supreme court allowed this proceeding, as no writ of error can be brought in that State on an order quashing an indictment.

In the case of People v. The Onondaga C. P., 2 Wend. 631, it was held to be a proper course to be pursued in a criminal case, where the court below had arrested the judgment. The power and jurisdiction of the court are not determined, either by an order arresting the judgment or quashing the indictment. A writ of error, sued out on the part of the prosecution, upon the judgments and decisions of the court upon questions of practice, can be sustained, except where the defendant has been acquitted by a verdict, or convicted and no motion in arrest of judgment made and sustained. It is right that it should be so, for a court might illegally quash an indictment or arrest a judgment when the public would otherwise have no redress. The usual course is, after the indictment against the defendant has been quashed, to prefer a new and more regular one. 1 Chit. Crim. Law, 250, 260; Bacon’s Abr. Indictment, K.; Comyn’s Digest, Indictment, H. And if the judgment is ultimately arrested, all the proceedings will be set aside ; but it will be no bar to a subsequent indictment, which the prosecutor may immediately prefer. 1 Chit. Crim. Law, 542; Comyn’s Digest, Indictment, N.; 4 Black. Com. 375. For the defendant’s life or liberty has never been in actual jeopardy, and the ends of public justice have not been satisfied, either in his conviction or acquittal.

In 4 Black. Com. 361, we find it laid down, that there hath yet been no instance of granting a new trial, where the prisoner was acquitted upon the first. If the jury, therefore, find the prisoner not guilty, he is then forever quit and discharged, except he be appealed of felony within the time limited by law. And upon such acquittal or discharge for want of prosecution, he shall be immediately set at large. Also, in 2 Hawkins’ P. C. 442. In 1 Chit. Crim. Law, 535, it is stated, that a new trial cannot, in general, be granted on the part of the prosecution, after the defendant has been acquitted, even though the verdict appears to be against evidence. No new trial can be granted where the defendant has been acquitted, although the acquittal was founded upon the misdirection of the judge. 6 East, 315; 4 Maule & Selwyn, 337; 1 Chit. 352; 2 Tidd’s Prac. 942; 1 Starkie’s N. P. 516; 1 Wilson, 298; 12 Mod. 9. The same doctrine is stated in 6 Bacon’s Abr., title, Trial 9, page 675, 676. If the defendant in an indictment or information, has been acquitted, the court will not grant a new trial, notwithstanding the verdict was contrary to evidence. But it seems to be the better opinion, that when the verdict was obtained by fraud of the defendant, or in consequence of irregularities in his proceedings, as by keeping back the prosecutor’s witnesses, or neglecting to give due notice of trial, a new trial will be granted. 1 Chit. Crim. Law, 536. The same doctrine seems to have been quoted favorably by the supreme court of Massachusetts, in the case of Commonwealth v. Green, 17 Mass. 526. In the case of People v. Mather, 4 Wend. 262, the supreme court of New York say: that “in criminal cases, where the defendant has once been acquitted, the reluctance to grant new trials has ever been very great. It is a? conceded rule of law, not to grant a new trial in such cases because the verdict has been against evidence. Whether a new trial can be granted'where there has been acquittal, without infringing the rights of the defendant, even where the court has misdirected the jury, is now an unsettled question.’ ’ But in the case of People v. Comstock, 8 Wend. 549, where the defendant had been acquitted, a new trial was moved for on the ground of the misdirection of the jury by the presiding judge, the English doctrine was approved, and the motion denied.

It is a ma.Nim of the law, that no one shall be tried twice for the same offense; or, his life or person brought again into jeopardy, where there has once been an acquittal. And the same rule holds throughout, in all cases, upon penal statutes, and upon all indictments and informations for misdemeanors, as well as felonies. State v. Wright, 2 S. C. 517; State v. De Hart, 2 Halst. 172; Overseers of the Poor v. Lunt, 15 Wend. 565. The prohibition in the Constitution of the United States, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb,” is an old maxim of the common law, which means, that no person shall be tried a second time for the same offense, after a trial by a regular and competent jury, upon a good indictment, whether there be a verdict of acquittal or conviction. United States v. Gilbert, 2 Sumner’s C. C. 19. But this rule is now settled throughout the United States, that the courts can grant a new trial, at the instance of the defendant, in capital as well as in other cases.

It seems that, in a case where a new trial could be of no benefit to the party, it will not be granted. Duncan v. Dubois, 3 Johns. Ch. 135. The same rule is applicable where a reversal of the judgment is sought upon a writ of error. Now apply this principle to this case. If the prosecution should prevail in this writ, and reverse this cause for the alleged error, it would end there; for the court could not award a venire facias de novo. We could not, on reversal, order our judgment to be certified to the district court with directions to have the defendant apprehended and put a second time on his trial. This would be a violation of every principle of criminal justice. If this practice were tolerated, the court would be required to sign a bill of exceptions, at the instance of a prosecutor, who might be urged to it for purposes of revenge, when the court, in order to afford him the full benefit of his exceptions, would have to retain the defendant, either in custody or under bail, notwithstanding he had been acquitted by the verdict of a jury.

A writ of error is not a continuation of the suit below, because it may be sued out by a new attorney, without obtaining a rule for a change of attorney (7 T. R. 337; 2 Johns. 287; 19 Wend. 152); and in many respects it is considered as a new action (2 Tidd’s Prac. 1196); which we have shown is not allowable in criminal cases. On page 376 of the Statutes is an act to provide for appeals, new trials and exceptions in criminal cases ; but it is exclusively for the benefit of the defendant upon conviction. And, by the seventh section of the act, notwithstanding the judge who tried the cause has allowed and signed a bill of exceptions at the instance of the defendant, yet if it should clearly appear to him that such exceptions are frivolous, immaterial, or only intended for delay, he may enter judgment and award sentence, in such manner as he may deem reasonable. Should then this court, after reflecting upon the objects and policy of this statute, and the principles and practice above stated, allow or sustain a writ of error, in the absence of all statutory provisions at the instance of the prosecution, after a verdict of not guilty has been finally pronounced and the defendant discharged % Certainly not. The writ must be quashed.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    Hill vs. Bloomer.
    1. Writ Off error. A writ of error will not lie to reverse an interlocutory judgment; it can be brought only upon a final judgment.
    2. Final judgment. Where an order had been made quashing a writ of replevin, and the order declared “ that the plaintiff take nothing by his writ, and that the defendant recover his costs,” and a further order awarded a writ of inquiry, to assess the value of the property replevied and the damages for the detention thereof, but which had not been executed — held, that these orders could not be reviewed upon a writ of error, and that they did not amount to a final judgment.
    ERROR to the District Court for Dane County.
    The case is stated in the opinion of the court.

      John Oatlin and J. B. Arnold, for plaintiff in error.

      B. J. Dunn and Moses M. Strong, for defendant in error.
   Miller, J.

In the district court David Hill was plaintiff, and Bdward Bloomer defendant, in an action of replevin. On motion of the defendant, the writ was quashed, and the court ordered that the plaintiff take nothing by his writ, and that the defendant recover of the plaintiff his costs, and further, on motion of defendant, the court awarded a writ of inquiry to assess the value of the property replevied and the damages for the detention thereof. A writ of inquiry was issued but is not yet executed. To reverse these orders of the district court, a writ of error was sued out, which the defendant has moved this court to quash, for the reason that there is no final judgment or decison of the said district court.

By the organic law of the Territory, writs of error, bills of exceptions, and appeals in chancery causes, shall be allowed in all cases, from the final decisions of the district courts to the supreme court, under such regulations as may be prescribed by law. The only question to be determined is, whether there is a final decision, or judgment in this cause in the district court ? By section 30 of the act concerning replevin, page 275 of the statutes, if the property specified in the writ has been delivered to the plaintiff, and the defendant recover judgment by discontinuance or nonsuit, such judgment shall be, that the defendant have return of the goods and chattels replevied, unless he shall elect to waive such return pursuant to any of the provisions contained in said statute. Now, by considering the order quashing the writ, equivalent to a judgment by discontinuance or nonsuit with a judgment that the defendant have return of the goods and chattels replevied, the cause would be finally decided between the parties in the district court; the rights of the parties would be concluded, and the plaintiff would be entitled to his writ of error. But, by the 32d section of the same act, the defendant, whenever he shall be entitled to a return of the property replevied, instead of taking judgment for such return as above provided, may take judgment for the value of the property replevied, in which case such value shall be ascertained by the jury on the trial, or by a writ of inquiry, as the case may require. The defendant elected to take judgment for the value of the property replevied, and there not having been a jury impaneled in the cause, a writ of inquiry was awarded to assess the same. The plaintiff having received the property into his possession from the sheriff on the writ, the mere order of the court quashing the writ, or awarding a writ of inquiry, does not disturb the possession.

The writ of inquiry must be executed and confirmed, and judgment entered on the same for the amount found by the jury, before the plaintiff can be affected. 'This may never be done ; and, until it is done, the plaintiff’s possession of the property is as perfect as if the writ had not been quashed. It is apparent that this court cannot take cognizance of cases in judgment or proceedings merely interlocutory; but the decision of the district court must be final, and of which a record can be made, and which shall decide the right of property. Yates v. People, 6 Johns. 401. The English practice referred to in the argument is not applicable here. There a man may have a writ of error before all parts of the cause are decided, as on demurrer, or before a writ of inquiry of damages is executed. 1 Rolle’s Ab. 751. A writ of error will there lie on a fine and recovery, though the word “judgment,” or any thing in the form of the judgment, is not to be found in the proceedings. 1 Rolle’s Ab. 747. In New York a writ of error will not lie until a final determination of all the issues joined in the court below, unless from the record itself, it is apparent that the judgment rendered in the court below, disposes of the whole matter. Pete v. McCrew, 21 Wend. 667. In Pennsylvania a writ of error lies in all cases, in which a court of record has given a final judgment. Commonwealth v. The Judges, 3 Binney, 273. Hence, a writ of error does not lie upon an interlocutory judgment given for the plaintiff upon a demurrer in an action sounding in damages. Logan v. Jennings, 4 Watts, 355. Nor does it lie upon a judgment quod computet, in account render. Butler v. Zeigler, 1 Penn. 135. In the case of Life and Fire Insurance Com pany of New York v. Adams, 9 Pet. 602, Chief Justice Marshall remarks: “That the supreme court in the exercise of its ordinary appellate jurisdiction, can take cognizance of no case, until a final judgment or decree shall have been made in the inferior court. Though the merits of the case may have been substantially decided, while any thing though merely formal, remains to be done, this court cannot pass upon the subject. If, from any intermediate stage in the proceedings, an appeal might be taken to the supreme court, the appeal might be repeated to the great oppression of the parties.’ ’ Prom the tenor of these decisions in the supreme courts of the United States and in the States of New York and Pennsylvania, we cannot consider the judgment as was the case in the district court of Dane county a final judgment in the cause. The value of the property is to be ascertained by a jury, which is a matter of substance, and much more essential than mere matter of form, as was the case in the supreme court of the United States. And the execution of the writ of inquiry is quite as essential to the final disposition of the cause, as the report of auditors on the judgment of quod computet in Pennsylvania. If the district court has erred, or shall hereafter err, in any of the subsequent proceedings yet to be had in the cause, this court will correct the errors, upon a writ of error sued out at the proper time.

This writ of error must be quashed.


author: Irvin, J.

text:
    Welden et al. vs. Legate.
    A writ of error will not lie to an order or decree of tlie district court in an equity cause; the only remedy for tlie party aggrieved is by appeal. Délapluine v. Mactison, 7 Wis. 407.
    ERROR to the district court for Iowa County.
    A writ of error was issued to review a final decree in an equity cause, and the defendant in error moved to quash the writ for the reason that a decree in equity could not be reviewed upon a writ of error.

      F. J. Dunn, for defendant in error.

      Ben. Q. Eastman, for plaintiff in error.
   Irvin, J.

This case came up on error to the district court of Iowa county, sitting as a court of chancery, and is here met by a motion on thé part of the defendant in error, “to quash the writ of error herein and dismiss the proceedings from this court for the following reason: No writ of error lies in a chancery cause from the district court to the supreme court of Wisconsin Territory, but an appeal alone.”

In support and resistance of this motion, many authorities have been referred to. Is it true that a writ of error does not lie from this court to the district court in chancery causes ? For, if that be true in law, then the writ was improvidently awarded, and would have to be quashed.

By the-9th section of the act establishing the Territorial government of Wisconsin, the judicial power of the Territory is “vested in a supreme court, district courts, probate courts, and in justices of the peace.” “And the said supreme and district courts, respectively, shall possess chancery as well as common-law jurisdiction*.” “And writs of error, bills of exceptions, and appeals in chancery causes, shall be allowed in all causes, from the final decisions of the said district courts to the supreme court, under such regulations as may be prescribed by law, but in no case removed to the supreme court, shall a trial by jury be allowed in said court.” So far therefore, as this act of congress, commonly called the organic law (and which is to us as a constitution) is concerned, it is very plain that the mode provided for taking cases in chancery, from the district courts to the supreme court, is by appeal, and in no other way.

The legislature of the Territory, as will be seen on page 295 of the Statutes of Wisconsin (§ 101), has prescribed •the regulations, as they were required by the organic law to do, in which it is provided, that ‘ when any person, being complainant- or defendant, shall think himself aggrieved by the decree or final order of a district court sitting as a court of chancery, such person may enter an appeal within thirty days to the supreme court, from such decree or final order, on giving bond with good security, in such sum as the judge of the district court shall order, conditioned to pay, satisfy and perform the decree or final order of the supreme court, and all costs, in case the decree or final order of the district court shall be affirmed; and if the decree or final order of the district court shall be affirmed, the supreme court may award such damages against the appellant as they may think proper, not exceeding twenty-five per cent on the amount of the money, or other subject-matter of such decree.” Thus it will be perceived that the legislature, in prescribing the regulations for an appeal, have made them peculiar, differing altogether from'the regulations prescribed for taking up by writ of error, its appropriate and undisputed subjects. Parsons, Ch. J., 4 Mass. 178, in disposing of a similar question, says, in speaking of an appeal, “it is less expensive and more convenient than a writ of error, and further relief may be granted on an appeal than can be on a writ of error. On an appeal, the cause of error may be removed by amendment; mistakes in fact on the merits, may be corrected, neither of which can be done on error ; and, at the same time, an erroneous judgment below may be amended by the court having appellate jurisdiction. The statute in giving an appeal has, in our opinion, taken away, by reasonable implication, the remedy by error, unless in cases where the aggrieved party, without any laches on his part, could not avail himself of an appeal. But if it appears on the record that the plaintiff in error might have appealed, the court will, ex officio, quash the writ; or the court will quash it on a plea in abatement, disclosing the plaintiff’s remedy by appeal. In this case, it appears on the record that the plaintiff in error might have sought his remedy by an appeal to the common pleas. He cannot come to this court per saltum, but he ought to have appealed, and if dissatisfied with the judgment of the common pleas, he might then have sued out his writ of error.”

In the examination of the case at bar, it not only appears that the plaintiffs in error might have appealed by the provisions of the statute, but that they did pray an appeal from the district court which was granted to them, and why they abandoned that clear and undisputed remedy, for one so questionable, this court cannot even conjecture.

In 6 Mass. 5, he reiterates the same opinion. See, also, 2 Wheat. 132.

It would be difficult to conceive upon what ground, under the peculiar statutory provisions as contained in the organic law and the act of the legislature of the territory, the idea of bringing the cause here on writ of error rested, unless it was supposed, that there was something in the very nature of a writ of error which bid defiance to, and would bear down all legislative provisions: but inasmuch as we cannot recognize in it any such quality, but on the contrary, declare it as fully a subject of legislation as an appeal is, we must hold it equallyas liable to legislation. The statutes, as we have already seen, provide an appeal, and an appeal only, as the proper remedy for the party aggrieved, and to which we must hold the plaintiffs in error as the only proper remedy. It is therefore considered, that the writ of error was improvidently sued out, and that the same be quashed.


text:
    Bird vs. Fake and Cotton.
    1. Liquor law — repeal. The sixth and seventh sections of the statute of Michigan to regulate taverns, approved 28d, April, 1833, which prohibited the trusting of any person except travelers or lodgers, for drink or other tavern expenses over $1.25, and made void any note or other security for the same, affected the remedy only,’ and being repealed, prohibited charges made while it was in force, may be sued for and recovered.
    2. Same. The prohibitions of that act did not vest any right in the party trusted within the saving clause of the repealing statute. But see 2 Wis. 237.
    3. Dormant partner — joinder. A dormant partner need not be joined with his copartners in an action to recover partnership demands; and the fact that the defendant knew him to be a partner does not alter the case so as to make it necessary that he should be joined; the defendant must have known the dormant partner as such in the transaction which is the subject-matter of the suit.

      i. Power oe partner. One partner cannot bind another in the transfer of accounts and the settlement of the business of the firm as between the partners without his consent; and to make such transfer or settlement binding as between the partners, they must all consent to it.
    ERROR to the District Court for Milwaukee County.
    Assumpsit, brought by Fake & Cotton against Bird, upon a bill of charges in favor of the plaintiffs as keepers of the American Hotel at Madison, against the defendant, a large portion of which was for liquors and hotel expenses. The last item of the account was dated August 30, 1839. Bird pleaded the general issue, and gave notice of set-off, and that the amount of the plaintiffs’ demand had been paid and applied by the defendant, at their request, upon the discharge of a debt owing by the plaintiffs for rent of the American Hotel to James Morrison. An objection was raised on the trial to the nonjoinder of James Morrison as a co-plaintiff.
    The deposition of Morrison was read upon the trial; which, after proving a written agreement between him, as the owner of the American Hotel and Fake & Cotton, which is embodied in the opinion of the court, proved further ; that Falte presented to him an account due from Bird to the American Hotel while it was kept by Falte efe Qotton^ under said agreement, amounting to $255.15, being the balance due from Bird as stated by Falte, which amount deponent assumed as part payment of his share of the profits of the house, and credited Falte efe Qotton with their proportion of said account, at their request, and charged the same to Bird. It was the understanding that by this arrangement Bird was released from all claims of Fake cfe Qotton. This arrangement was made on 30th or 31st August, 1839. Bird’s account was charged in deponent’s book and posted in his ledger. Fake & Qotton were in no other business than keeping the hotel, while the account accrued, to his knowledge. At the time of the arrangement, deponent told Fake that if Bird acknowledged the account to be correct, he would receive it in payment of his proportional part of the profits of said house. He afterward suwBird, who said it was correct, and deponent agreed to receive it as payment from Fake, as above stated. The account is charged against him, in Fake & Qotton’s books. Bird and deponent have an unsettled account, and Bird has put property in his hands to secure that and all other debts. The above transfer was agreed upon between Fake and deponent, but they did not effect a full settlement of other matters in relation to the American Hotel. There had never been any difficulty between deponent and Fake <fe Qotton in relation to the transfer of Bird’s account.
    It was also proven on the trial that the plaintiffs below kept the American Hotel under the name and firm of Fake & Qotton ; that they so advertised, made and paid their bills, etc. That Morrison lived thirty miles from Madison, and did not take any active part in the business of the hotel; and that the account against Bird was correct for the balance of $255.15.
    After the evidence was closed the court charged the jury:
    “The objection to the writ in this case cannot defeat the action at this stage. The declaration was filed by both plaintiffs conformably to the affidavit for the writ, to which the defendant pleaded the general issue. The cause is regularly at issue between the plaintiffs, Falce & Cotton, and the defendant.”
    “ The statute of Michigan, forbidding the collection of tavern bills, was a statute affecting the remedy, and being repealed does not now operate against the plaintiffs’ recovery.”

      “ It probably would not have been improper to include the name of James Morrison, but it was not necessary, and the action is well brought without it. A defendant is not obliged to plead in abatement the non-joinder of a partner who ought to have been made a co-plaintiff, but may take advantage of it on the plea of the general issue. But it must appear affirmatively that such partner was an acting partner, for if he was merely a dormant partner he need not be joined. An actual, without an apparent interest in the profits of a concern, constitutes a dormant partner.”
    “The several members of a firm cannot transfer to one of them their apparent interest in a joint debt so as to enable him to sue and recover it in his own name. The original relation of debtor and creditor cannot be shanged without the consent of the debtor. If this were a transfer of this account by the plaintiffs to Morrison, without the consent of the defendant, Morrison would have to sue in the name of the partners, which a judgment in this casein favor of Bird would defeat. It might be competent for Morrison to collect and receive this debt, but it does not appear that it has been actually paid by Bird. Then, as it has not been paid by Bird, and there, is no allegation that Lester H. Cotton, one of the plaintiffs, ever consented to, or engaged in the alleged arrangement between Falce & Morrison, the plaintiffs’ recovery in this action, cannot thereby be defeated.”
    The defendant asked the court to instruct the jury: “ That Lester II. Cotton is bound in this matter by the act of Falce, they being copartners.” To which the judge replied, and charged the jury: “ Qotton in this matter, is not bound by the act of Fake, without his consent.”
    The defendant also asked the court to instruct the jury: “ That if the debt to Fake & Qotton has been paid at their request, and has been credited by Morrison to them, then the plaintiffs cannot recover.” To which the judge replied, and charged the jury: “This is a debt to the whole firm, and, if paid in any way by defendant, the plaintiffs cannot recover.”
    The jury returned a verdict in favor of the plaintiffs, upon which the court rendered judgment.

      H. N. Wells and J. F. Arnold, for plaintiff in error.
    The charge of the judge to the jury, in relation to the tavern expenses charged in the plaintiffs’ bill of particulars, is not consistent with sound principles of law. The fair construction of the statute of Michigan, in force at the time, will make such sales and charges void, ab initio. The 6th section of the act (Laws of Mich. 126), prohibits trusting for such charges, and declares that the tavern keeper shall, lose the debt, and be incapable of suing for it. The 7th section makes void any note or other security taken for such charges, and affixes a penalty for taking it. The policy of the law, and the manner in which it is framed, show that it was the intention of the legislature to make all such contracts absolutely void ; and a contract that is void at the time, under a prohibitory penal statute, cannot be made valid by a subsequent repeal of the statute, and no promise afterward made to pay it, is binding.
    The court erred in instructing the jury that the action was well brought without joining Morrison as a co-plaintiff. We admit that a dormant partner, not known at the time or dealt with as such, need not be joined (3 Cow. 84; 4 id. 717), but if the dealing was with a dormant partner, known to be one of the firm, he should be joined. 2 Whart. Dig. 326. This account was due to the American Hotel company, which was composed of Morrison, Qotton and Fake. Bird knew them to be partners, for he signed the agreement, and he dealt with them as snoh. From his knowledge and dealings, Morrison was not, as to him, a dormant partnei'. 4 Watts, 455, 456. Whether Morrison was an active or a dormant partner was a question of fact for the jury alone to decide. The court below decided the fact, and took the question from the jury by the instructions given.
    Again, the court assumed a matter of fact, in charging the jury, that it did not appear that the debt had been paid by Bird. It is error for the court to assume a matter of fact to be true, that can only be ascertained by the verdict of a jury.
    The instructions of the court that Ootton should have consented to any arrangement to settle the account in order to bind him, and that he was not bound by the act of Falce, were not according to the principles of law. One partner has power to bind the firm, in matters relating to the partnership property and the settlement of partnership debts. 3 Kent’s Com. 20,21, 22, 24, 25 ; 4 Binney, 375. And a release from one partner of a debt due the firm will bind all the copartners. 3 Kent, 24 ; 14 Johns. 387; 3 id. 68; 17 id. 58. In this case, Ootton & Falce as one party, contracted with Morrison, and were jointly bound to him. They were themselves copartners as to Morrison, and Falce was acting for himself and Ootton in settling the business with Morrison. The arrangement was for Oottorú s benefit, and, independently of the power to bind him, his consent ought to have been presumed ; at least the question ought to have been left to the jury for them to decide.

      John JET. Tweedy, for defendants in error,
    cited Collyer on Part. 394; 4 Watts, 365; 4 Cow. 717; 3 id. 84; 4 Wend. 408 ; 2 Vt. 65; 3 Greenlf. 394; 1 Chitty on Plead. 13 ; 9 Cow. 680.
   Irvin, J.

This cause which was tried and decided in the district court of Milwaukee came up on error, as set forth and complained of, in exceptions taken to the several decisions and directions of the court to the jury, both in its general charge and special instructions asked for. When instructions to the jury are asked for upon a particular point of law as connected with the case generally, or upon the law connected with a particular point in the evidence, and exceptions to the instructions given are taken, the inquiry of the appellate or court of error is generally confined to the particular and more circumscribed matter thus presented; but when the exception is taken to matter of the general charge of the court to the jury, as well as particular instructions asked , for, the inquiry in the appellate court necessarily becomes more extended, and sometimes apparently diffuse, as the general charge rests upon the views taken of the whole case as presented.

The first exception taken in the court below is, in this court abandoned, so far as the writ is concerned, and will not therefore, be considered.

By a provision of the statute of the Territory, when a creditor sues out a process of attachment against his debtor, any other creditor of said defendant may, at or before the second term of the court after the return of said process served, file his declaration, and proceed thereinto judgment as in other cases. This appears to be a case of that kind, and in which the defendants in error seek to recover of the plaintiff in error the amount of a bill of particulars through the medium of a declaration in assumpsit, to which the defendant pleaded the general issue.

In the progress of the trial, it appeared that AMre & Cotton were the keepers of a hotel at Madison, called the American Hotel, and as such keepers sold and furnished to Augustus A. Bird, the items mentioned in said bill of particulars, among which were charges for spirituous liquors, which account of items commenced on the 30th of November, 1838, and terminated on the 30th of August, 1839. Up to the 4th of July, 1839, the laws of Michigan were in force in this Territory, when they ceased by repeal. In this case, Bird, the plaintiff in error, relied for a part of Ms defense on the sixth and seventh sections of “An act to regulate taverns.” Laws of Michigan, p. 126, Revision of 1838. As farther defense in the coart below, Bird, the plaintiff in error, introduced an agreement purporting to be made and entered into by James Morrison, of the first part, and L. II. Cotton and Henry Fake, of the second part, wMch was signed and sealed by L. 11. Cotton and Henry Fake, and James Morrison by A. A. Bird, by wMch the American Hotel was leased to Cotton and Fake, and wMch regulated and disposed of the profits arising from said hotel, between the said Morrison, the lessor, and the said Cotton & Fake, the lessees. This was introduced for the purpose, 1st, of showing that Morrison was a partner in the keeping of said hotel, and should have been joined in the action ; and, 2d, that his acts, as such partner, bound the firm keeping the American Hotel.

The 6th section of the law of MicMgan above referred to, is as follows: “If any tavern keeper shall trust any person other than travelers, above the sum of one dollar and twenty-five cents,, for any sort of strong or spirituous liquors, or tavern expenses, he shall lose every such debt, and be incapable of suing for the same, or any part thereof, and if any such tavern keeper shall sue therefor, the person may plead tMs act in bar, or give it in evidence under the general issue, and if the plaintiff shall become nonsuited, or a judgment shall be given for the defendant, every such plaintiff shall pay double costs.”

The 7th section makes void all securities taken upon such trusting, and among other tMngs makes an exception in favor of the tavern keeper in the case of lodgers and travelers.

The agreement referred to is as follows: “An agreement made and entered into at Madison, tMs 21st day of November, A. D. 1838, between James Morrison, of the county of Iowa and Territory of Wisconsin, party of the first part, and L. H. Cotton and Henry Fake, of the town of Madison, county of Dane, and Territory aforesaid, party of the second part, witnesseth: That the said Morrison, party of the first part, for himself, his heirs and assigns, doth hereby agree to furnish the house now known as the American Hotel, in Madison, in a suitable manner for the accommodation of guests, and will also furnish one laboring man to cut firewood for said house, and doth hereby lease the same to the above-named party of the second part, they complyingwith the following conditions, to wit: The said party of the second part, for themselves, their heirs and assigns, agree to take the above-mentioned house on a lease of one year from the date of this article, after having been furnished as above described, and will furnish all necessary help and keep the same in as good a maimer as possible, and at the expiration of each three months during the term of said lease, will divide the net profits that may accrue equally with the said party of the first part, and return the furniture in as good order as when taken, excepting the natural wear and tear thereof; and the said party of the second part furthermore agrees to pay one-half of whatever the cost may be of insuring the furniture against loss and damage by fire, the same to be insured as soon as possible. And it is further understood, that each party is to be at half the expense of furnishing provisions, liquors, and all necessary eatables for said house.”

It further appears from the testimony returned with the exceptions taken in the cause, that some time in the summer of 1839, Fake and Morrison attempted a settlement of the matters arising out of the keeping of the said hotel, when Fake proposed that Morrison should take the account charged against Bird, which was then declined; nor does it appear that the parties, Fake and Morrison, ever had another interview about it. Morrison, in his deposition taken herein, says: “I afterward saw Mr. Bird, who said (in allusion to the account against him), it was correct, and I agreed to receive it as a payment from Mr. Fake, as above stated,” but with whom he agreed does not appear. Thus stand the. prominent matters in this case, to the understanding of which, a state-meat is made necessary from the desultory and unsatisfactory manner in which the exceptions were taken below, exceptions in the most part taken to the general charge of the court to the jury, which we are 'bound to presume was given from a full view of the whole case.

The errors are assigned merely by reference to the exceptions in their numerical order.

The second exception is to this charge of the court: “The statute of Michigan, forbidding the collection of tavern bills, is a statute affecting the remedy, and being repealed, does not operate against the plaintiff’s recovery.” In the examination of that statute, which has already been recited, the prohibitions therein contained are not directed against the act of selling, but of collecting. The right to sell to any extent, the articles therein mentioned, cannot be questioned, so that it be done for cash, and not trusted, for it says, “ if any tavern keeper shall trust any person,” etc. The right to sell, therefore, cannot be doubted, and the only prohibition being upon the collection, it becomes clearly a matter that relates to the remedy, and the statute being since repealed, and before the commencement of this suit, the inhibition upon the remedy was removed with the repeal. At the time of the repeal spoken of, it was done under a regular revision of the laws, and was accompanied by this general provision which is found in the fourth section of the act, page 407 of the statutes of Wisconsin, and is in these words: “The repeal of any statutory provision by this act shall not affect any act done or right accrued or established, or any proceeding, suit or prosecution had or commenced previous to the time when such repeal shall take effect,” etc. The prohibition upon the remedy was not such a right accrued or established, as was contemplated by the act, nor was it a vested right. The court did not, therefore, err in the instruction given.

The third instruction excepted to, is this : “It probably would not have, been improper to include the name of James Morrison, but it was not necessary, and the action was well "brought without it. A defendant is not obliged to plead in abatement the non-joinder of a partner who ought to have been a co-plaintiff, but may take advantage of it on the general issue; but it must appear affirmatively that such partner was an acting partner, for if he was merely a dormant partner he need not be joined. An actual, without an apparent interest, in the profits of a concern, constitutes a dormant partner.”

It is a principle of law well settled, that a dormant partner (and the court are satisfied from the evidence that Morrison is nothing more), need not be joined with the active partners in a suit. 8 Serg. & R. 55; Morse v. Chase, 4 Watts, 456. And the fact that Bird personally knew Morrison to be a partner (the fact of partnership being conceded) nothing militates against the principle that a dormant partner need not be joined; for- the true distinction we take to be this: that the defendant must know the dormant partner in the transaction which is the matter of litigation; that is the knowledge which the law requires, in order to make an exception to the general rule. 3 Cow. 34; 1 Chitty on Plead. 7, 8; 2 Esp. 468; 2 Taunt. 324, 326. In this the court did not err.

The fourth exception is to this charge of the court: “ The several members of a firm cannot transfer to one of them their separate interests in a joint debt, so as to enable bim to sue and recover it in his own name. The original relation of the debtor and creditor cannot be changed without the consent of the debtor. If this were a transfer of this account by the plaintiffs to Morrison, without the consent of the defendant, Morrison would have to sue in the name of the partners, which a judgment in this case in favor of Bird would defeat. It might be competent for Morrison to collect and receive this debt, but it does not appear that it has been actually paid by Bird. Then, as it has not been paid by Bird, and as there is no allegation that Lester H. Cotton, one of the plaintiffs, ever consented to, or engaged in the alleged arrangement between Falce and Morrison the plaintiffs’ recovery in this action .cannot thereby be defeated.”

The correctness of the instruction here given, is recognized in the case of Horback v. Huey, 4 Watts, 455; in Bun v. Morris, 1 Caines, 54; and indeed it is so clearly recognized in all the authorities, that we do not think it admits of a doubt. In the instruction there is no error.

Thus far the exceptions were taken to the general charge of the court to the jury. The fifth charge excepted to, was upon instructions asked for by the defendant in these words: ‘ ‘ That Lester II. Cotton is bound in this matter by the act of Wake, being copartners,” to which the court replied and charged the jury : “ Cotton, in this matter is not bound by the act of Fake, without’his consent.” That one partner may bind his copartner in transactions relating to the business of copartnership, with third persons, is a principle coeval with partnership itself; and it is equally clear that no arrangement about the partnership business as between themselves, by some of the members of a firm, can bind those who do not concur therein. Were it otherwise, it would at any time, be in the power of one partner of a firm to ruin the balance.

The sixth and remaining instruction asked for by the defendant, and excepted to as given, is this: “ That if the debt to Fake & Cotton has been paid at their request, and has been credited by Morrison to them, then the plaintiff cannot recover.” To which the judge replied: This is a debt to the whole firm, and if paid in any way by defendant, the plaintiffs cannot recover.”

This we consider a self-evident proposition.

We cannot see, after examination of the whole case, that the district court committed any error in any of the charges or instructions or opinions given. The judgment of the district court is therefore affirmed with costs.


author: Milleb, J.

text:
    Haney vs. Clark and Jones.
    1. Becord — error. The court will not consider any paper as a part of the record which is not made so hy the pleadings, or some opinion of the court referring to it, or hy a hill of exceptions taken in the cause ; and it makes no difference that the paper is certified up hy the clerk.
    2. Practice. A motion made in the progress of a cause in the court helow, and the reasons and affidavits upon which it is founded, are no part of the record, unless made so hy a hill of exceptions.
    ERROR to the district court for Dane County.
    The case is stated in the opinion of the court.

      Julius T. OlarJc, for plaintiffs in error.

      A. P. Field, for defendant in error.
   Milleb, J.

This suit was commenced by 8atterlee OlarJc and Henry Jones against Berry Haney, before a justice of the peace, where, in the absence of the defendant, on the return day of the writ, judgment was rendered for the plaintiffs ; from which the defendant appealed to the district court for Dane county, where he moved the court for leave to file his set-off to the plaintiffs’ demand, which was denied, and this is the error assigned.

The counsel for the defendant below, and plaintiff in error, neglected to have his motion with his proposed set-off embodied in a bill of exceptions ; and contented himself with coming here with a mere certified transcript of the records of the district court. The counsel for the defendants in error refused to argue or consider the error assigned, for the reason that the cause is not properly in this court, as the motion of the party is not a part of the record, but can only be made so by a bill of exceptions, stating the motion and the nature of the off-set proposed.

The question is thus presented : Is this motion a part of the record which this court will examine as such ? In cases at common law, the course of the supreme court of the United States is, not to consider any paper part of the record which is not made so by the pleadings, or by some opinion of the court referring to it. This rule is common to all the courts exercising appellate jurisdiction according to the course of the common law. The preliminary question is, whether the matter exists on the record ? Lessee of Fisher v. Cockerill, 5 Peters, 248. The appellate court cannot know what evidence was given to the jury, unless it is spread on the record in proper, legal manner. Gratz v. Gratz, 4 Rawle, 411. The unauthorized certificate of the clerk, that any document was read, or any evidence given to the jury, cannot make the document, or that evidence a part of the record, so as to bring it to the cognizance of the appellate court. Upon the same principle, the court of appeals of Kentucky decided, ed, in the case of Ashley v. Sharp, 1 Littell, 166, that where the grounds assigned in the record are the exclusion of evidence, or of title papers on the former trial, the bill of exceptions ought to exhibit the evidence or title papers excluded. Upon the same principle, it was decided by the supreme court of Illinois, Vanlandingham v. Fellows, 1 Scam. 233, that the reasons filed by a party as the foundation for a motion in the circuit court, do not thereby become part of the record. To make them a part of the record they must be embodied in a bill of exceptions. And because they were not so made a part of the record, the court refused to take any notice of them. In Indiana, evidence whether written or parol, can only be made part of the record, by oyer,'bill of exceptions, demurrer to evidence, special verdict, or consent of parties. Cole v. Driskell, 1 Blackf. 16. The same court decided in the case of Shields v. Cunningham, 1 Blackf. 36, that a capias ad respondendum is not part of the record, unless made so in some legitimate method ; and the circumstance of its being certified up by the clerk, can add nothing to its validity. In the case under consideration, a .copy of the off set offered to be filed in the district court, is not even certified up by the clerk. There is no error apparent on the record, and the judgment of the district court must therefore be affirmed. The error complained of, is not properly presented, and for this reason the court will not notice it. People v. Dalton, 15 Wend. 581.


text:
    Bryant vs. Barber.
    Appeal—practice. When a party appeals from the judgment of a justice of the peace, he must have an entry of his appeal made in the district court on or before the second day of the next term after the appeal is taken, and if the justice fails to send up the papers as required by law, he must within that time take a rule against him to make return. If the appellant neglects to take the necessary steps to get his appeal before the court until after the second day of the term, he cannot have it entered on a subsequent day, and the right accrues to the appellee, under the statute, to have the cause entered and judgment rendered in his favor upon the judgment of the justice.
    ERROR to the District Court for Milwaulcee County.

      Barber obtained a judgment against Bryant before a justice of the peace of Milwaukee county, from which. Bryant appealed on the 12th of February, 1842. The next term, of the district court commenced on the 13th of June, 1842, and on the 18th of June, before the time for trying appeals, according to the arrangement of business in court, the justice who tried the case handed the papers to the clerk, when the appellant’s counsel requested the clerk to enter the cause on the docket. The clerk declined making the entry, and, upon referring the matter to the court, the judge directed him to file the papers but not to enter the cause. On the 1st of July, on motion of the appellee, the cause was entered and judgment rendered in his favor for the amount recovered before the justice, with interest damages and costs, according to the statute, the appellant, by Ms counsel, being in court at the time and objecting thereto and offering to go to trial.

      W. P. Lynde, for plaintiff in error.
   Irvin, J.

The action was brought before a justice of the peace to recover compensation for the use of horses. Before the justice the defendant made no defense, but after judgment given for the plaintiff, took an appeal to the district .court. The justice gave judgment on the 12th of February, 1842. The district court commenced on the 13th of June, 1842, and to which court the justice made his return the 18th of June, when the counsel for the appellant moved the court to have the same entered, which was not so ordered, the clerk merely marking it filed. On the 1st day of July of the same term, the appellee, by his counsel, moved the court to have the appeal entered, which was done, and judgment in his favor given, for the sum in which the justice had given judgment, together with interest, and twelve per centum damages; to all which the appellant objected.

By' the 6th section of the 9th article, p. 333 of the statutes of Wisconsin, the justice is required to file on or before the first day of the term of the district court next after the appeal, in the office of the clerk of said court, a transcript of his docket, together with all the papers in the case in which the appeal is taken. By the 8th section the appellant shall cause an entry to be made of the appeal, on or before the second day of said term, unless otherwise ordered by said court; provided, that if the appellant shall fail or neglect to enter the appeal as aforesaid, the appellee may have the same entered, at any time during that or some succeeding term, and the judgment of the court below shall be entered against the appellant for the same, with interest and twelve per centum damages and the costs of both courts.” When the justice failed to make return, as the law required, the appellant might, on or before the second day of the term, have taken a rule against him to make return, upon the coming in of which he could then have proceeded in the suit; but failing as he did, until the time at which the justice made return, the right had accrued to the appellee to have and take the judgment which he obtained at that term of the court. The district court committed no error, and the judgment therein given must be affirmed with costs.


text:
    Hyde vs. Barker.
    Nonsuit. After evidence has been given on the part of the plaintiff pertinent to the issue, a justice of the peace has no power to order a peremptory nonsuit, although he is trying the cause without a jury.
    ERROR to the District Court for JRock County.

      Hyde brought an action against Barker before a justice of the peace in Rock county, on an account for work and labor. The plaintiff filed a written declaration in assumpsit, containing three counts. The first count was on a special contract made in August, 1841, to build a corn barn for the defendant for $24 — the' work to be done by the 20th October, 1841; the second count was on a similar contract, the work to be done in a reasonable time; and the third was for work and labor generally. The defendant pleaded the general issue. The case was tried by a justice without a jury, and on the trial the plaintiff proved that he had done a principal portion of the work on the contract, but did not prove that it was completed as set out in the first count in the declaration, and attempted to prove what the work was worth, which was objected to by the defendant, and the objection was sustained by the justice. The defendant moved for a nonsuit on the ground that a special contract had been set up, and the plaintiff had failed to prove performance on his part. The plaintiff, pending the motion, asked leave to withdraw the first count in the declaration and let the evidence apply on the other counts, which the justice refused, and gave judgment of nonsuit against the plaintiff.
    The case was taken into the district court by certiorari, where the judgment of the justice was affirmed, and Hyde prosecuted a writ of error to reverse the judgment of the district court.

      J. H. Knotolton and Edward V. Whiion, for plaintiff in error.

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

This case came before the district court for Rock county, by certiorari to a justice of the peace. The error complained of was, that the justice after hearing the -testimony on part of the plaintiff in support of the claim and pertinent to the issue, on motion of the defendant, for reasons therein stated, entered a nonsuit against the plaintiff’s consent. This judgment was affirmed by the district court; following, in this particular, the practice in the State of New York. That practice we do not recognize in the district court, and consequently the same, if not better reasons should prevent it before a justice. If it were tolerated, serious injustice might in some instances be done. The supreme court of the United States have repeated the rule so frequently, that after pertinent evidence is received on part of plaintiff, the court has no authority to order a peremptory nonsuit, against the will of the plaintiff, on the trial of the cause before a jury, that the point is not now to be questioned. The plaintiff may agree to a nonsuit, but if he do not so choose, the court cannot compel him to submit to it. Elmere v. Grymes, 1 Peters, 471; Dewolf v. Rabaud and others, id. 497; Crane v. The Lessee of Morris, 6 id. 598.

The case was disposed of by the justice. He was bound to the same rule, as if there had been a jury impaneled. As the evidence comes up imperfectly, it might be unsafe to risk an opinion, on the points of law attempted to be raised upon the record, and the court, for this reason, will not attempt their consideration.

The judgment must be reversed, and the case certified to the district court of Rock county, with directions to the said district court to reverse the judgment of the justice.


text:
    Cox vs. Groshong et al.
    1. Forcible entry and detainer. The statute to prevent forcible entries and detainers provides for two classes of cases; cm unlawful cmd forcible entry and a for oíble detainm\ and a lawful and peaceable entry and unlawful detainer; and in proceeding under the statute, the complaint must state a case of one or the other of these classes. A complaint for a forcible detainer, without alleging a forcible entry, is bad.
    2. Complaint. The complaint must describe the premises with reasonable certainty; and where the complaint describes the land as a range of lead ore and a strip or piece of land on each side running easterly and westerly across the land owned by certain persons in a particular section, it is bad for uncertainty of description.
    3. Proceedinss. Where the complaint is defective, the defendant does not waive the objection by going to trial, but he may make it at any stage of the proceedings. In proceedings in forcible entry and detainer the provisions of the statute must be strictly pursued.
    4. Powers oe justices’ courts. Justices’ courts are not courts of record, and do not proceed according to the course of the common law, and so far as their powers are concerned, they are confined strictly to the authority given them by statute. They can take nothing by implication, but must show that the power which they exercise, is expressly given to them in every instance.
    5. Removal—waiver. Whore a cause has been removed from one justice to another, and the parties proceed to trial without objecting to the justice to whom the case was sent, it is too late after the trial, to object because he was not the nearest justice to the one before whom the cause originated.
    ERROR to the District Court for Grant county.
    In April, 1842, Gox commenced a proceeding in forcible detainer against James GfrosTiong and others, before Samuel Tompkins, a justice of the peace in Grant county. The complaint stated that Cox was “the owner and justly entitled to the possession of the undivided one-fourth part of a certain range of lead ore, and a strip or piece of land on each side, running easterly and westerly across the land hereinafter described, and the right of searching and digging for lead ore thereon, situate on the lands now owned by James GrosTiong, Jonathan Craig and the said Cox, in section seventeen, township No. four north, of range No. three west, in said county of Grant;” “that one James Groshong, Jefferson Groshong and one Stone, did on or about the 1st day of February, 1842, wrongfully, and without lawful authority, enter into and upon the said undivided one-fourth part of the said range of lead ore and the said strip of land and the right of searching for lead ore thereon, and took possession of the same, against the right of the complainant, and have from thence hitherto, wrongfully, unlawfully, with force and arms, with a strong hand and multitude of people, detained the possession thereof from the said complainant.”
    Process was issued upon the complaint, and returned on the 25th of April, on which day, on the application of James Groshong, one of the defendants, the case was adjourned to the 30th of April. It appears that upon this application the justice first adjourned the cause to the 6th of May, but immediately afterward his attention was directed to the statute upon the subject, from which he considered that he had not the power to adjourn the cause for so long a time, when he recalled the parties and witnesses, and notified them that the adjournment was to the 30th of April, and that not more than fifteen minutes had elapsed from the time of first fixing the adjournment.
    On the 30th April, Jefferson Groshong, one of the defendants, applied for and obtained a change of venue from before Justice Tompkins, who immediately transmitted the cause to Jeremiah Spencer, as the nearest justice qualified to act. Spencer was at that time, accidentally in Lancaster, where Tompkins was holding his court, but his residence was not so near as that of other justices in the county. Spencer immediately proceeded with the trial of the cause, and impaneled the same jury that had been summoned before Tompkins. Before the trial commenced, the defendants filed before Justice Spencer an affidavit for a continuance, setting out as grounds, the absence of a material witness, who resided in Illinois ; that due diligence had been used to procure him; that James Groshong was then gone for him; and that the defendants believed if an adjournment was granted for seven days the witness could be procured. The motion was overruled, and the trial proceeded. The jury rendered a verdict against the defendants, upon which the justice rendered judgment, and awarded a writ of restitution.
    The defendants took the case into the district court by writ of certiorari, and assigned the following errors in the proceedings before the justices:
    1. For want of a legal, full and sufficient complaint in the law ; a legal, full and sufficient summons thereon.
    2. For that the said Justice Tompkins erred, when, after he had on the application of the defendants, adjourned the said action over to the 6th of May, and dismissed the jury, witnesses, and parties, in setting aside that continuance, and compelling the defendants to answer on the 30th of April.
    3. For that the said Justice Tompkins erred, when he changed the venue from before himself to Spencer, who was not the nearest justice to. the place of holding the court of said .Tompkins, or his place of residence, and when there were other justices residing six miles nearer the said Tompkins.
    4. For that the said Justice Spencer erred, when he took cognizance of the case at the place he did, without his docket, and tried it by the same persons whom the said Tompkins had summoned to sit as jurors in the case, without issuing a new process for a jury.
    5. For that the said justice showed himself to be a partial justice, from the manner in which he procured the case to be brought before himself on the change of venue from before said Tompkins.
    6. For that the said Justice Spencer erred, in not giving the defendants a continuance on their application on affidavit filed.
    7. For that the said Justice Spencer erred,'in not having his docket present, and reducing his proceedings and decisions to writing.

      8. For that the jury erred in giving a verdict in favor of the plaintiff, the testimony not having supported his complaint; and the justice erred in rendering judgment on the verdict.
    It appears from the return of Justice Spencer, that this was the first case which he ever tried; that he had no docket at the time, and did not then reduce the proceedings and decisions to writing ; but when he went home he took down the material parts, and made up his docket as soon as possible.
    The district court reversed the judgment of the justice, and the cause was brought into this court by the complainant, Oox, on writ of error to reverse the judgment of the district court.

      Ben. O. Eastman, for plaintiff in error.

      E. J. Dunn, for defendant in error.
   Miller, J.

This case was commenced under the act to prevent forcible entries and detainers by George II. Gox, against James Grosliong, Jefferson Groshong, and Stone, before a justice of the peace of Grant county. A. verdict and judgment were rendered against the said defendants before the justice, which they removed to the district court of said county, by certiorari, where the said judgment was reversed; upon which decision of the said district court the said Gox sued out a writ of error.

The examination of the record will require us to con- ■ sider such of the exceptions filed in the district court, to the proceedings before the justice as may be'material.

The first exception filed was to the complaint.

The complaint represents, that u James Groshong, Jefferson Groshong and one Stone, whose Christian name is unknown to the complainant, did, on or about the 1st day of February, 1842, wrongfully, and without lawful authority, enter into and upon the said range of lead ore and the said strip of land, and the right of searching and digging for lead ore thereon, and take possession of the same, against the right of the said complainant, and have from thence hitherto, wrongfully, unlawfully, forcibly, with force and arms, with strong hand and multitude of people, detained the possession thereof from the said complainant, and still do, wrongfully, unlawfully, forcibly and with strong hand and force and arms, and multitude of people, keep out and detain from said complainant, the possession thereof, contrary to the statute and the laws of the said Territory, after demand of possession thereof by complainant,” and prayed that summons might issue for a forcible detainer.

By the act upon which this proceeding was founded, any justice shall have authority to inquire by a jury, as well against those who make unlawful and forcible entry into lands, tenements and other possessions, and with a strong hand detain the same, as against those who, having lawful and peaceable entry into lands, tenements and other possessions, unlawfully detain the same. By this statute, there are two classes of cases made cognizable before the justice: first, an unlawful and forcible entry and detainer ; second, a lawful and peaceable entry and an unlawful detainer. The complaint does not come within either class. It charges that the defendants unlawfully, and without authority, entered the premises, while, if it was desired to proceed for the entry, it should have charged that they unlawfully and forcibly entered. But it was not claimed by complainant to be a summons for an unlawful detainer merely, which comes under the second class where the entry is lawful and peaceful. From this it will appear, that this complaint did not conform to the statute, and for this alone, the district court did right in reversing the proceedings before the justice.

This is a proceeding authorized and regulated by statute, and committed to a tribunal whose jurisdiction and authority are created by the statute alone; for these reasons, the provisions and directions of the statute must be strictly pursued. Justices’ courts are not courts of record, and do not proceed according to the course of the common law, and so far as their powers are concerned, they are confined strictly to the authority given them by the statute. They can take nothing by implication, but must show the power which they exercise to be expressly given them in every instance. Thomas v. Robinson, 3 Wend. 267; Mills v. Martin, 19 Johns. 33; McCarty v. Shannon, 3 id. 429; Borden v. Fitch, 15 id. 140; Andrews v. Montgomery, 19 id. 162.

The complaint sets forth “that the said George IT. Cox was, on the first day of January last, has been, and.still is, the owner of and justly entitled to the possession of a certain range of lead ore, and a strip of land or piece on each side thereof, twenty-five yards wide on each side, running easterly and westerly across the land hereafter described, and the right of searching and digging for lead ore thereon, in section 17, township No. 4 north, of range No. 3 west, in said Grant county.” This would also appear to be too vague and uncertain. It does not describe the land by any marks, descriptions or boundaries, nor does it even refer to its location in the section. It is true that a court would have a superintending power, which would always be promptly exercised, in case a plaintiff should take out a writ of restitution for what he had not recovered; but it is doubtful whether a justice could exercise it. We are aware that it is impossible always to describe a tract of land with so much accuracy as to enable the sheriff to deliver it, without some person to show him, on the ground, the boundaries alluded to in the writ; but nevertheless, the premises must be described with reasonable certainty. See on this subject, Burdick v. Norris, 2 Watts, 28; Martin v. Martin, 17 Serg. & R. 431; Borough of Harrisburgh v. Crongle, 3 W. & S. 460; Smith v. Jenks, 10 Serg. & R. 153; Fisher v. Lorick, 7 id. 99.

The remaining exceptions will be disposed of together. The justice is allowed to adjourn, at his discretion, any trial under the act, not exceeding six days. This is a very summary proceeding, which requires the parties to make every effort to procure their testimony and be prepared for the trial. By the act of 1840, section 8, authorizing the removal of causes from one justice to another, after the oath is made by the defendant, the justice shall immediately transmit all the papers in the case to the nearest justice qualified by law to try a cause between the parties in the suit, who shall proceed to hear and determine said cause in such manner as if it originated before him. In this case the parties made no objection to Justice Spencer. The papers were immediately transmitted to him by Justice Tompkins, and the parties, without objecting to his jurisdiction, went to trial on the same day of the removal of the cause. After this, it was too late to make the objection that he was not the nearest justice to Justice Tompkins qualified to act, if it could be made at any time;

The trial before Justice Spencer did not waive the errors in the complaint; as we have seen that the jurisdiction of a justice must be made affirmatively to appear, and there are no presumptions in its favor. It was com petent to the defendant to raise the objections to it at any stage of the proceedings.

As the complaint is defective, and for this reason the judgment of the justice was correctly reversed by the district court, it is unnecessary to examine the questions raised upon the evidence.

Judgment affirmed, with costs.