text:
    Selby vs. Platts and another.
    Justice’s Court — Jurisdiction. Where an action was commenced before a justice by attachment, but the writ had not been returned at the time fixed for the return of the process, and the defendant did not appear: Held, that in the absence of such return or appearance, the justice had no authority to proceed; that a judgment without such return or appearance was void, and that the acts of the justice in rendering it, and of all others aiding in enforcing it, were wrongful.
    (3 Chand., 183.)
    EEEOE to the County Court for Marquette County
    An action by attachment was commenced by the defendant Bowen, before the defendant Plaits, a justice of the peace of Marquette county, against Selby. The writ of attachment, issued by Platts as such justice, was not returned by the officer to whom it was delivered at the time it was made returnable. But the justice, Platts, notwithstanding, assumed jurisdiction, though the defendant in the suit did not appear, and proceeded to hear the cause and rendered judgment against the defendant therein, Selby, and issued execution on the judgment, by virtue of which the property of Selby was seized and sold.
    He then instituted this action on the case in the county court for Marquette county for the taking of his property, against Platts, the justice, and Bowen, the plaintiff in the proceedings before, bim. The defendant pleaded the general issue, and Platts, the justice, gave- notice that he would prove that he acted judicially in the premises and in good faith. At the trial of the action in the county court, it was proved that the -writ of attachment issued by the justice had not been returned to the justice who issued it at the time of the rendition of the judgment by him.
    The county court held that the action could not be maintained upon these facts, and judgment passed against the plaintiff Selby for $18.08 costs; and he brought this writ of error.

      M. W. Seeley, for plaintiff in error,
    contended that jurisdiction of the defendant is.acquired by the return of service duly and properly served, and that the justice had no jurisdiction unless the defendant appeared and voluntarily joined issue; that in the absence of one or the other of these conditions the justice had no jurisdiction of the person, and could not render a valid judgment against him. More particularly is this true in attachment cases, where a stringent and summary proceeding is resorted to. 1 Cow. Tr., 555; 14 Johns., 481; 3 Wend., 202; R. S., 449, 459.

      Collins, Smith & Tapp an, for defendants in error.
   KNOWLTON, J.

This was an action of trover, brought in a justice’s court by the plaintiff in error against the defendants in error, for taking a horse of the plaintiff, of the value of seventy-five dollars, as alleged in the declaration. The defendants pleaded the general issue, and gave notice of justification as to the defendant Platts, on the ground that he acted in good faith in his official capacity of justice of the peace. After judgment in the justice’s court, the cause was removed by appeal to the county court of Marquette county, and on the trial in the latter court, the plaintiff proved the taking of the horse by one Calvin J. Hall, by direction of the defendants, and after making a case, rested. The defendants introduced the papers in an attachment proceeding, commenced before the defendant Platts, who was a justice of the peace of the county of Marquette, by the defendant Bowen; also, the docket of what purported to be a judgment and the execution by virtue of which the property was taken. It appears that the defendant Bowen, the plaintiff in the attachment suit, appeared on the return day-mentioned in the writ of attachment, but that the defendant, the plaintiff in error, made no appearance. That the justice Platts, rendered judgment in favor of the plaintiff Bowen, on the same day, for the sum of twenty-three dollars damages, and eighty-six cents costs. It also appeared that at the timé this judgment was rendered,.the writ of .attachment had not been returned. The execution was issued on this judgment on the 19th of Feb., 1850, and was returned March 21, following, indorsed “one horse sold for forty-.dollars.” The county judge decided that the judgment thus given in evidence was a justification for the defendant Plaits, in issuing the said execution by virtue of which the property of' the plaintiff in this case was taken; • That Platts was not liable as a trespasser, for property taken by .virtue of said execution issued on said judgment, because it did not appear from the whole evidence that the acts of the justice were a willful abuse of power, .nor that his actions proceeded from corrupt or improper motives; and the court further decided, that the evidence on the part of the- defendants was sufficient to bar the action of- the plaintiff; to which decision the plaintiff, by his his counsel, excepted, and judgment was rendered by the court against the plaintiff, for the sum of eighteen dollars and eight cents, costs of suit. •

The validity of this judgment depends upon the fact whether the judgment rendered by the defendant Platts, was void or not. If it was void, and not merely erroneous -or voidable, then it was no defense, either to the justice who rendered it, .or to the party in whose favor it was rendered; and if void, both would be liable as trespassers, to the extent of the value of the property taken and sold by virtue of an execution issued thereon. This principle is so well settled-that-it is -unnecessary to-cite authorities to support it.

The county court, it seems, entertained the opinion that the justice, Platts, was not amenable in law, in this case; unless he acted in the premises from corrupt motives: In this he was entirely mistaken. If his action had its foundation in corruption, that might have been very proper,'perhaps, to consider upon an indictment. Yet if all that he did was within the power vested in him,, or in other words, if he kept strictly within his jurisdiction, as to place, subject matter, and the person of the defendant, he would not have been liable as a trespasser.

But every justice of-the peace, assuming to act in a judicial capacity, must have jurisdiction of the action, the subject matter, and tbe person against whom he assumes to render judg: ment, and he must exercise that jurisdiction within the territorial limits prescribed by law. No well - founded doubt can be entertained of this proposition. It is firmly established by adjudicated cases. A justice of the peace gets jurisdiction over the person of' the defendant by the service of process in the manner, prescribed by law, when that, mode is authorized -and pursued. But he must have before him the proper evidence of the fact of service before he can proceed to the rendition of a judgment that will have any binding efficacy against, such defendant. Now, what is such evidence ? . Obviously ..the return of the ministerial officer upon the writ that he has served, according to law; or by the voluntary appearance of the person before the justice, to defend the cause of action. Either of .these is a complete authority for .him to proceed, to. judgment, as to the person, even though the return of the writ was absolutely false. This is the only rule -that-can be laid down, so as to accord with sound policy in the-administration of justice. It appears in this case, that the writ of attachment had had not been returned to the justice at the time he rendered judgment against the plaintiff in error. He, therefore, had not the evidence required by law, that the defendant in that action, had been served with the process. It follows, from the princi-pies above laid down, that be was amenable to tbe plaintiff in error, as a trespasser, for tbe property sold on the execution, issued by him on that judgment, it being coram nonjudice, and absolutely void. Bowen, the other defendant, being plaintiff in the execution, and he not having a valid judgment, which he was bound to see that he had, as a basis for the execution, and ordering the taking of the horse in question, was jointly liable in trespass with his codefendant. And as a party may always bring trover when he could maintain trespass de bonis asportatis, the action was properly brought. The judgment of the county court was clearly erroneous, and must be reversed, and the cause remanded and a venire de novo awarded.

Ordered accordingly.


source: Caselaw Access Project

author: JACKSON, J.

license: Public Domain

text:
    Nichols. vs. Nichols.
    1. Bounty Lands — Conveyance. — By tlie fourth section of the act of congress of May 6,1812, revived and continued by subsequent acts, claims for military bounties for services in the war- of 1812 were not assignable or transferable in any manner whatever until after a patent had been granted for the lands, and “ all sales, mortgages, contracts or agreements of any nature whatever, made prior thereto, for the purpose or with the intent of alienating, pledging, or mortgaging any such claim, were declared and were to be held null and void, and by one of the subsequent acts it was provided that the certificate of location of such claim should not be assignable, but that the patent should in all cases issue in the name of the person originally entitled to the land, or his heirs, etc.: Held, that a power of attorney from one entitled to such bounty lands, given before any patent issued, authorizing the grantee of the power “ for his own use and benefit to locate the warrant therefor, and to sell the land and receive payment therefor,” and a subsequent conveyance thereof under such power, were in contravention of the said acts of congress and void.
    (3 Chand., 189.)
    EBBOB to the County Court for Fond du Lac County.

      Walter JET. Nichols brought an action of trespass, quare claus-um fregit, against John Nichols, who pleaded bj way of justification, title to the locus in quo in himself. The plaintiff gave in evidence a patent for the premises from the United States to one Kasey, on account of services as a soldier in the army, dated February 14, 1846, and issued under the act of congress of July 27, 1842, and also the record of a deed of the same lands from Kasey and wife to himself, dated June 20, 1849, and recorded October 10, 1849, and also proof as to the amount of damages.
    The defendant offered in evidence the record of a power of attorney from said Kasey to one Bradbury, purporting to authorize him for his own use and benefit to locate the land warrant which the said Kasey had received for his military services, and to sell the lands and receive payment therefor, containing a power of substitution dated August 11, 1848, and recorded October 6, 1849 ; this was objected to on the ground that it was executed previous to the issuing of the patent to Kasey, and was therefore void, but it was received; also the record of a power of attorney from said Bradbury to E. D. Holton, dated April 1,1845, recorded October 6,1849. It purported to have been witnessed by only one witness, and to have been executed in the state of Maine, and after reciting the said power of attorney from Kasey to Bradbury, it purported to authorize and empower Holton, for his sole use and benefit, to locate said land warrant, and to sell the lands located and to receive payment for the same; but it was objected, for the reason that, as before stated, the power from Kasey to’ Bradbury was void, so this power which purported to be executed by virtue of it was also void, and because it purported to have been witnessed by only one witness, and therefore the record of it was not evidence. The court overruled the objections. The defendant then offered in evidence three deeds of said premises, all recorded October 6, 1849 ; the first from Kasey, by E. D. Holton as his attorney, to David McDougal, dated August 8, 1849 ; the second .from McDougal and wife to Joseph E; Garland, dated August 22, 1849, and the third from said Garland- to tbe defendant, all of which were objected to for reasons urged- against said powers of attorney; that the deed from Kasey, by Holton as his attorney, to McDougal, was void on account of said defects in, and objections to said powers of attorney, and that therefore neither of said deeds passed any title to the premises; but the'court overruled the objections, and -held that the powers of attorney and said deeds were valid, a-nd so the defendant had a verdict and judgment, and the plaintiff brought-his-writ of error.. ■ • .

      Gillett '& -Eaton, for plaintiff in-error,
    claimed that the record of the power of attorney or substitution from Bradbury ■ to Holton, purporting to have been witnessed by- only one witness, was- improperly, received in evidence (Ter. Stat., 179, 180);- that the, deed from Kaséy, by Holton as. his attorney, to McDougal, and .those from McDougal to Garland'and .'from Garland to the defendant, having been made or. depending for their efficacy -upon a power of attorney made by Kasey previous to. the issuing of the,.patent, to him, were invalid* (Acts of Congress, May 6, 1812, § 4, and April 16, 1816, § 5), and were therefore improperly received in evidence.

      Graham &. Davis, for defendant in error,
    argued that the powers of attorney were properly received in evidence; that they had been executed in Maine, and according to the laws of that state (R. S. Maine, 378; R. S., ch. 98, § 96); that the court at the trial might proceed upon its knowledge of the laws of a sister state, and in that case proo'f of such laws was unnecessary, and that the judgment rendered would not be reversed unless it appeared that the court decided wrong as to such laws (State v. Rood, 12 Yt., 396; 1 Greenl. Ev., 645; Story’s Confl. of. Laws,- §§ 640, 641); that the sale under the power from Kasey to Bradbury was not made until after • the patent was issued, and a bona fide purchaser under such power could not be disturbed; that a revocation of such power could take effect as to the agent, only on notice to him of such revocation, and as to third persons not until made known to them. Story on Agency, 611; 2 Kent Com., 611.
   JACKSON, J.

The decision of this case involves an inquiry into the act of congress of 1812, together with the several acts of congress, passed subsequently, relating to the military bounty lands, appropriated for services in the war between the Uhited States and Great Britain.

The second section of the act of congress, passed May 6, 1812, providing for issuing warrants for the military land bounties to the persons entitled thereto, contains the proviso; “Provided always, that such warrants shall be issued only in the names of the persons thus entitled, and be by them, or their representatives, applied for within five years after the said persons shall have become entitled thereto; and the said warrants shall not be assignable or transferable in any manner whatever.” And in the 4th section of the same act it is further declared, “that no claim for the military bounties aforesaid shall be assignable or transferable in any manner whatever, until after a patent shall have been granted in the manner aforesaid. All sales, mortgages, contracts, or agreements of any nature whatever, made prior thereto, for the purpose, or with the intent of alienating, pledging or mortgaging any such claim, are hereby declared and shall be held null and void.”

Since .the passage of this act, congress has passed several other acts, making further provisions for military services during the late war, and for extending the time for issuing and locating military land warrants. Among these, the most important are the acts of April 16, 1816; February 24. 1819; May 26, 1824; January 27, 1885; May 27, 1840; and July 27, 1842. The act of 1842 continued in force for the period of five years ; the act of 1835 was but a renewal of the-acts, of 1819 and 1824.

The act of May 6, 1812, having been revived and continued by subsequent acts, all sales and transfers of the military bounty lands, appropriated for services in the war of 1812, made prior to the entry and the issuing of the patent, are invalid. The act of 1842, under which the warrant was issued to Richard H. Kasey, and the location made in his name of the tract to which the title is in controversy in this cause, contains this express provision: “ That the certificate of location obtained under the provisions of this act shall not be assignable, but the patent shall, in all cases, issue in the name of the person originally entitled to the bounty land, or to his heirs or legal representatives.” In pursuance of this act, as well as of the provisions of the previous acts of congress, which are continued and revived, the patent of the United States for this land, was issued to Kasey on the 14th day of February, 1849. And on the 20th day of June, 1849, Kasey and his wife conveyed the land described in the patent, to Walter H. Nichols, the plaintiff in error, and the deed of conveyance was recorded in the register’s office of Fond du Lac county, on the 10th day of October, 1849.

On the trial of the cause, which was an action of trespass, instituted by Walter H. Nichols against John Nichols, for trespasses upon this land, the plaintiff, to show title in himself, produced and offered in evidence the patent and the deed above mentioned; and having introduced testimony proving the trespasses, and the damage occasioned by them, rested his cause. The counsel for the defendant then produced the records of the register’s office of Fond du Lac county, and offered in evidence, 1. The record of a power of attorney from Richard H. Kasey to John Bradbury, containing a power of substitution, executed the 11th day of August, 1848, recorded the 6th of October, 1849, and which purported to authorize and empower the said John Bradbury, for his own sole use and benefit, to locate warrant 27,252, issued to said Kasey, and to sell the lands located, and to receive payment for the same.

2. The record of a power of attorney from John Bradbury to Edward D. Holton, recorded the 6th day of October, 1849, purporting to have been executed in the state of Maine, witnessed by only one witness, dated the 1st day of April, 1845, and by its terms, after reciting the power of attorney from Bichard H. Kasey to John Bradbury, authorizing and empowering the said Holton, for his sole use and benefit, to locate said warrant number 27,252, and to sell the lands located, and to receive payment for the same.

3. The record of three deeds, all recorded the 6th day of October, 1849; the first from Richard H. Kasey by Edward D. Holton, his attorney, to David McDougal, dated August 8, 1849, purporting to convey to said McDougal the land described in said patent from the United States to said Kasey, to-wit: The southwest quarter of section thirty-three, township sixteen north, of range seventeen east. The second from David McDougal and Minerva McDougal to Joseph E. Garland, dated August 22, 1849, purporting to convey to said Garland the south half of said southwest quarter of section thirty-three; and the third deed from Joseph E. Garland to John Nichols, the defendant in error, dated October 6, 1849, purporting to convey to said Nichols the said south half of the southwest quarter of section thirty-three.

To all of which evidence the counsel for the plaintiff objected, and his objection having been overruled by the court, the cause comes to this court on exceptions to the decision of the judge admitting this evidence. Its admissibility must be determined by the provisions of the acts of congress before referred to, and under which the tract of land in question was located and patented. As the authority to execute the deeds last described, and to convey the lands therein mentioned was derived through the power of attorney from Bichard H. Kasey to John Bradbury, the first and material inquiry is as to its validity. If it was void, then Holton, as the attorney of Kasey could convey no title to McDougal; McDougal could convey none to Garland, nor Garland to John Nichols. Now, the power of attorney from Kasey to Bradbury was executed on the 11th day of August, 1843 ; and the patent to Kasey for the same lands was not issued until the 14th day of February, 1846. The evident design as well as effect of this instrument was to transfer from Kasey, the patentee, before the issuing of the patent, and’ in violation of the act of congress, all his right, title and interest in the warrant, and all the title which he would acquire by the location of the warrant and the issuing of the patent, in the land in controversy. This consequence was as clear and as absolute as if Kasey had assigned directly all his interests in the warrant, a proceeding which was in terms prohibited by the acts under which the warrant was issued.

There can be no question, therefore, that the conveyance by Holton to McDougal was an evasion of the law of congress, and that no right or title to the land in question by virtue of his power of attorney could be lawfully acquired.

The deeds were improperly received in evidence, and the judgment below must be reversed.

Judgment reversed.


author: Howe, J.

text:
    Eastman and others vs. White.
    Eobcible Entry — Complaint. — A complaint.for forcible entry under B. S., cli. 117, sec. 2, need not specify or state tbe interest or estate of the complainant in the lands from which he has been expelled contrary to the statute. This statute prohibits one from doing himself right by force, and expelling by force one who is unlawfully in possession ; and in case he does forcibly expel such wrongful occupant, he may under this act be compelled to restore him to possession, and be punished by fine for such forcible entry and expulsion.
    (3 Chand., 196.)

      ERROR to the County Court for Iowa County.

      Eastman and others instituted a proceeding under the statute in relation to forcible entries and unlawful detainers against White, before a justice of the peace. The complaint alleged that the defendant “did on, etc., at, etc., with force and arms and a strong hand unlawfully, forcibly and injuriously enter into and upon'1 the premises in question, “then and there being in the peaceable possession of the complainants as the lessees and tenants, having lawful possession thereof, and that the said White then and there with force and arms and strong hands, unlawfully, forcibly and injuriously did expel, remove and put out the said complainants from the said premises; and the said complainants so as aforesaid expelled, removed and put out from the possession of said premises, with force and arms and strong hand did unlawfully, forcibly and injuriously keep out and still do keep out,” etc. White, the defendant, moved that the complaint be dismissed on the ground that it set forth two distinct causes of action, and that it did not set out or show the kind or nature of the estate claimed by the complainants in the premises sought to be recovered; but the justice overruled the motion, and a verdict and judgment were had in favor of the complainants. The defendant appealed to the county court, and there renewed his motion to dismiss, and that court sustained it and dismissed the case on the ground that the complaint did not show any estate in the complainants which would authorize them to recover in the form of action which they had resorted to, and the complainants sued out this writ of error.

      S. Crawford, for plaintiff in error:
    1. The complaint does not set out two distinct causes of action. The word unlawful was properly used in connection with forcible, and is necessarily included in it; but if it were not, it may be rejected as surplusage. Grould PL, 154; 6 Bac. Ab., 302; 1 Dali., 354.
    2. The averment that the complainants were in the quiet and peaceable possession of the premises as tenants and lessees, having a lawful possession, was a sufficient statement of tbeir estate. A peaceable possession is evidence of seizin, and this is sufficient. Jayne v. Price, 5 Taunt., 826 ; 1 Marsh, 68 ; Bull, N. P., 103. A tenancy, whether for a year or any shorter period, is in law a term for years, and if it be even for a month, it is styled in law a term for years. 1 Cruise, 257; Comyns Land, and Ten., 5 ; 2 Black.- Com., 140 ; People v. Nelson, 13 Johns., 340; People v, Leonard, 11 id., 504; People v. Pickett, 8 Cow., 226. And the averment is therefore tantamount to a statement of a term for years, because it necessarily showed that there was at the time a tenancy still existing and undetermined. The estate was set forth according to the facts, and want of form does not vitiate. B. S., ch. 117, § 20. The reason urged for an averment of the estate in the complaint, under the statute of 8 Hen. YI, does not apply to our statute. The English statute used the term reseize, which was construed technically, but our statute only requires a restitution or restoring.
    3. A person having a peaceable possession, no matter by what right, who is forcibly ejected, has this remedy, the statute having been made to prevent persons violating the possession of others or doing right to themselves by force, and a recovery in this action in no way establishes a title in the complainants. 1 Scam., 496, 497; 2 Burns Ins., 260 ; Morris (Iowa), 111, 254 ; 4 Scam., 496.

      M. M. Cothren, for defendant in error :
    1. The complaint is bad for duplicity. B. S., ch. 117, § 2. And where more than one offense is charged in a complaint, it will be dismissed. Commonwealth v. Symonds, 2 Mass., 163.
    2. The complaint does not set out the kind of estate claimed by complainants. It does not state who is the owner of the premises, of whom the complainants hold as tenants, nor for what time or on what terms. 3 Bao. Ab., 257; Bex v. Wan-hope, Sayer, 142; Rex v. Dorney, 1 Ld. Baym., 610; 1 Salk., 260, 284, 290; Regina v. Griffith, 3 Salk., 169; People v. Shaw,
      I Caines, 125 ; People v. King, 2 id., 98 ; People v. Nelson, 13 Jobos., 340; Pennington, E, 108-111; Slate v. Pearson, 2 N. H., 550; Com. v. Dudley, 10 Mass., 403; Bracken v. Preston, 1 Pinney, 584; Burd v. Com., 6 Serg. & R., 252; 9 Wend., 50; II id., 157; 4 Yates, 225 ; Cox v. Groshong, 1 Pinney, 307.
   Howe, J.

The principal question presented upon this record is, Whether the estate of the complainant is sufficiently described to bring it under the protection offered by our statute concerning forcible entries and unlawful detainers ?

Upon the argument, the adjudications upon this question were supposed to be somewhat conflicting. But a little attention to the history of legislation upon the subject of forcible entries will suffice to reconcile all seeming conflict of authority upon the point here raised. It was first enacted by the 5 Rich. U, ch. 7, as.follows: “And also the king defendetb that none from henceforth make any entry into any lands or tenements, but in case where entry is given by the law; and in such case not with strong hand, nor with multitude of people, but only in peaceable and easy manner. And if any man from henceforth do to the contrary, and thereof be duly convicted, he shall be punished by the imprisonment of his body, and thereof ransomed at the king’s will.”

Our statute, while it follows almost the exact phraseology of the above act, yet differs from it in this important particular, that it prohibits any. entry upon “ any lands, tenements or other possessions." But the act of 5 Rich. II provided no remedy for offenses against its provisions except by indictment. Accordingly, the act of 15 Rich. II, ch. 1, gave to justices of the peace jurisdiction to hear and determine complaints for forcible entries, and also for forcible detainers. Now, a very pertinent inquiry is, What was the rule of pleading as to the estate of the complainant under the statutes of 5 and 15 Rich. II? for it seems very clear that whatever averment was then sufficient, is now sufficient under the first section of the statute of this state. R S., ch. 117. The evidence upon this point is not entirely clear. Sergeant HawkiNS held this language upon the subject:

“It hath been also resolved, that an indictment on 5 or 15 Rich. II need not show who had the freehold at the time of the force, because those statutes seem equally to punish all force of this kind, without any way regarding what estate the party had on whom it ivas made; yet it seems that such an indictment ought to show that such an entry was made on the possession of some person who had some estate in the tenements, either as a freeholder or lessee for years, etc., for otherwise it doth not appear that such entry was made injurious to any one.” Hawk. PL Or., 504.

These two propositions are so utterly opposed to each other that all efforts to reconcile them must be hopeless. With one exception, the authorities referred toby the learned commentator in support of each proposition are different. ■ One case is cited from the 2 Keb. Rep. in support of both propositions — a peculiarity not at all consistent with the general reputation of his reports. The only case cited in support of the first proposition, which I have been able to refer to is one reported in 1 Ventr., 23. The indictment is expressly declared to have been framed upon the 15 Rich. II, and it was objected to because the words were “ existens liberum tenementum,” and not adtuno existens, etc. But the court held that although the words referred to the time of finding the indictment, and not the time of the entry, yet it was immaterial, because as no restitution was to be awarded, no mention need be made of whose freehold. More satisfactory evidence upon this point may be found by reference to the objects of those acts, as declared by all commentators thereon. “ The indulgence of the common law in suffering persons to regain the lands they were unlawfully deprived of, having been found by experience to be very prejudicial to the public peace, by giving an opportunity to powerful men under the pretense of feigned titles, forcibly to eject tbeir weaker neighbors, and also by force to retain tbeir wrongful possessions, it was thought necessary, by many severe laws, to restrain all persons from the use of such violent methods of doing themselves justice." 1 Hawk. Pl. Or., 595.

The purpose of these acts being then to prevent a party from doing justice by force, how is that purpose subserved if they be enforced only against those who do injustice by force, as he clearly does who deprives another of a freehold for a term of years ? Most clearly those statutes had regard only to the public peace, and not to private rights; and accordingly, their only penalties were fine and imprisonment. They gave no redress to any party injured. That object was effected by the 8 Hen. VI, ch. 9. This latter statute again commanded the justices to execute the statutes against forcible entries and. forcible detain-ers, and provided that if it be found “ that any doth contrary to this statute, then the said justices or justice shall cause to reseize the lands and tenements so entered or holden, as aforesaid,” etc. Upon this statute, Haweins remarks, that “ it was a great question whether a lessee for years, or a copy-holder, being ousted by the lessor or lord, could have a restitution of their possession within the equity of 8 Hen. VI, the words whereof as to their purpose are, that the justice shall reseize the lands, etc., by which it seems to be implied that the party must be ousted of such an estate therein, whereof he may said to be seized, which must be a freehold at least.” 1 Hawk., 499.

From this statute unquestionably sprung the doctrine that the nature of the complainant’s estate was an essential averment in the complaint for a forcible entry. All the cases cited in support of the doctrine were decided after that act took effect, and were evidently controlled by its provisions. It rested entirely upon the force of the word seizin, which was said to be used as a term of act. Queen v. Griffith, 3 Salk., 169. Accordingly, a lessee for years, if forcibly expelled by a stranger, might have his complaint under the 8 Henry VI, averring the freehold to be in bis lessor or lord, because the expulsion of the tenant was a disseizin of the lord. But not so if the tenant were expelled by his freeholder, even though the term was unexpired, because the freeholder could not disseize himself. 1 Hawk., 499; Yelv., 81. This idea never could, by any possibility, have originated from either of the statutes of Rich. II. But so undoubtedly, was the law from the 8 Henry VI, to 21 Jac., 1, when restitution was directed to be made to certain tenants therein described, and who might be forcibly expelled. But it was still necessary to set out what estate the person expelled had in the premises, because it was discovered that tenants at will were not named in the statute of 21 Jac., 1; Rex v. Dorny, 1 Salk., 260; Rex v. Wanhope, Sayre, 142; Rex v. Bathurst, id., 225. This was casus omissus, and in accordance with the strictness of ancient pleading, the complainant was obliged to show, by averment, that his was not the case omitted. How extremely critical was the construction put upon these statutes is evident from the following case which was held to be without their protection. If a lessor ejected his lessee for years, and was afterwards forcibly put out of possession by such lessee, he could have no restitution by complaint, because, as his lessee could not disseize him, he did not come under the provisions of the 8 Henry VI., and as he was not a tenant within the terms of the 21 Jac., 1, his case was not provided for by that act.

The statutes of 5 and 15 Rich. II, purposed to restrain men from doing themselves justice, by force, and from doing others injustice. They punished, as crimes, an entry upon lands without lawful right, and also a forcible entry, with lawful right. But whether the defendant entered with or without right, a judgment under those statutes left him still in possession. The subsequent statutes of 8 Hen. VI, and 21 Jac., 1, proposed to restore the party aggrieved to his rights, while they pun: ished the force. But those statutes were directed against those only, who had entered without lawful right and with force. But was all remedy gone, against those who entered forcibly, but with right, against the 5 Rich. II? I think not, though I express the opinion with great diffidence. Modern cases, in speaking of those statutes, have so invariably blended them together, that it is difficult to determine from the cases, what provisions of each were effective and what were not. But I express that opinion for these reasons : 1. Because I find nothing in either of the latter acts, necessarily repealing the act of 5 Rich. II. 2. Because in a case reported in 8 Salk., 169, it is said, that in cases of forcible entry and detainer, a man might proceed, either criminally or civilly ; his civil remedy is by writ of forcible entry, etc., and this is upon the statute of 8 Hen. VI. The case concludes with this language: “ But if W. E. is seized, and L. E. having good right to enter, doth accordingly enter manu forti, he might be indicted, notwithstanding his right, and restitution shall be awarded.” 3. Because I can see no reason why the penalties enacted against forcible entries, by the statute of 5 Rich. II, might not as well be enforced after, as before the 8 Hen. VI. But whether the latter statute suspended the former or not, it is clear, that under the 8 Hen. VI, restitution was awarded to such as had been forcibly expelled from a freehold, and only to such, because only such could have been disseized. It is equally clear that under the 21 Jac., 1, restitution was awarded to certain tenants therein named, and only to such, because’ only such were named. But under both acts the form of pleading and the rules of adjudication were based upon the terms of those acts respectively, and upon terms widely different from any to be found in the statutes of Eich. II. So in New York it was held that an indictment must set forth a seizin or possession, within the purview of the act, because the act to prevent forcible entries, etc., only extended to tenants for years, guardians and freeholders. People v. Nelson, 13 Johns., 340. But by the revised statutes of that state, the remedy is given to any. one who has “ an estate or freehold, or for term of years, in the premises then subsisting, or to some other right to the possession thereof. ” 2 R. S. N. Y., 508, sec. 3.

At first it seems to have been thought that this statute had rendered the nature of the estate wholly immaterial, and accordingly, it was held where the indictment averred possession in fee simple in the relator, and the proofs showed title in the defendant, that such averment might be rejected as surplusage. People v. Van Nostrand, 9 Wend., 50. But, in a subsequent case, Chief Justice Savage, laying more stress upon the words “ or some other right to the possession thereof,” remarks that “ a mere intruder or trespasser could not institute proceedings under this statute and be restored to the possession which he held unlawfully.” Evidently, because such trespasser could show no right to the possession whatever. People v. Reed, 11 Wend., 157. But the 117th chapter of the revised statutes of this state, concerning forcible entries and unlawful detainers, contains none of the terms which controlled the decisions I have been noticing.

It awards “restitution” and not “reseizin,” as did the 8 Hen. VI. There is, therefore, no reason for supposing it to be limited to estates of freehold. The remedy is not given by it, as by the 21 Jac., 1, and by the revised laws of New York, to particular tenancies, and therefore we have no reason for holding other tenancies to be excluded from its provisions. It does not, like the revised statutes of New York, require the complaint to be accompanied by an affidavit that the complainant has “ an estate of freehold or for a term of years still subsisting, or some other right to the possession thereof stating the same there is, therefore, no reason for limiting its protection to lawful possession. But, in terms as broad as the 5 Rich. II, it declares that no person, to whom entry is given by law, shall enter “ with strong hand, nor with multitude of people, but only in a peaceable manner.” Nor shall they make “any entry into lands, tenements or other premises, but in cases where entry is given bylaw.” It directs, “when any complaint shall be made in writing, to any justice of the peace, of any sucb unlawful or forcible entry,” bow the accused shall be brought into court, and bow he shall be tried.

The 9th section declares that “ if, upon the trial of any complaint under this chapter, the justice or jury shall find that the defendant or defendants, or either of them, are guilty of the allegations in the complaint ” (either of an unlawful or forcible entry), “the justice shall thereupon enter judgment for the complainant to have restitution of the premises, and shall impose such fine, not exceeding one hundred dollars, considering all the circumstances as he may deem just,” etc.

No such language is found in either of the statutes before noticed. I must deem it of controlling significance in the exposition of our act. By it, our act is broadly and advantageously distinguished from the former legislation upon the same subject in this: by the former statutes, the citizen was commanded not to do himself right by force; he was not disabled to do himself right by force. If in violation of the command, he acquired a right by violence, he was, at most, fined for the violence, but left in possession of the right thus acquired. Our statute utters the same command, and at the same time removes all inducement to violation, by depriving the party of all the fruits Of his violation. It disables the citizen to do himself right by force, because it wrests from him whatever right he may have acquired by force.

Under this act, therefore, the nature of the complainant’s estate is not a material averment where the entry complained of is with force and strong hand.

The judgment of the county court must be reversed and the cause remitted to the county of Iowa.


author: W HITON, J.

text:
    Hibbard vs. Bell.
    1. Pleading- — Misjoinder. — Counts in trover or case cannot be joined with counts in assumpsit.
    2. Certiorari — Error. — The statute, ch. 88, § 228, which provides that the county court shall give judgment as the right of the matter may appear, without regarding technical omissions, imperfections or defects, in the proceedings before the justice not affecting the merits, does not give that court authority to disregard the legal rights of the parties or the plain rules of law in order to accomplish' what it may regard as substantial justice. Misjoinder of causes of action cannot be disregarded under this statute.
    8. Same. — In an action where issue is joined by the plea of two defendants, it is error to render judgment against one of them, without a discontinuance or finding as to the other.
    (3 Chand., 206.)
    ERROR to the County Court for Milwaukee County. •
    Action of assumpsit brought by Bell against Hibbard and Smith, in justice’s court, on an account filed with the justice and the defendants pleaded non assumpsit, and the cause was adjourned. On the adjourned day, the plaintiff added the common counts in assumpsit and a special count against the defendants for two buffalo robes which they had received of the plaintiff as innkeeper, and which they refused to deliver. The defendants demurred for misjoinder of causes of action, and the justice overruled the demurrer, and upon hearing the proofs on the part of the plaintiff, the justice rendered judgment against Hibbard only, for twelve dollars damages and costs, and the case was brought before the county court by cer-tiorari where the judgment of the justice was affirmed, and Hibbard sued out this writ of error.

      C. K. Watkins, for plaintiff in error.

      A. D. Smith, for defendant in error.
   W HITON, J.

This action was originally commenced before a justice of the peace, by the defendant in error, against the plaintiff in error and one Aaron Smith. The justice rendered a judgment against the plaintiff in error alone. The cause was removed to the Milwaukee county court, by a writ of certiorari, and the judgment of the justice was affirmed by that court.

It appears, by the return of the justice to the writ of certio-rari, that the defendant in error declared in the justice’s court, against Hibbard and Smith, in assumpsit, and that they pleaded the general issue ; that subsequently, after the cause had been once adjourned, the plaintiff amended his declaration, by adding to it the common counts, and also a special count for two buffalo robes, which the defendants had received as innkeepers, and which they refused to deliver to the plaintiff.

To this amended declaration the defendants demurred for a misjoinder of counts; the demurrer was overruled by the justice, who, after the testimony had been heard, and a trial had taken place before him, rendered judgment against Hibbard alone. I do not see how this judgment can be .sustained. Although the strictness in pleading, required in courts of record, is not to be expected in proceedings before justices of the peace, yet sufficient regard must be had to form, to prevent the substantial rights of parties from being sacrificed.

In this case, the pleadings appear to have been oral, and the justice entered a concise statement of them in his docket, as required by ch. 88, sec. 11 of the revised statutes. From this statement it appeared that all the counts in the declaration were in assumpsit, except the special one, which was added after the adjournment; and so far as can be ascertained by the statement contained in the docket of the justice, that may have been in assumpsit also.

That statement is, that the plaintiff added a “special count- and declared against defendants as innkeepers, for two buffalo robes of the value of $20, which they refuse to deliver plaintiff, it being plaintiff’s property.” This is certainly quite as much like a declaration in assumpsit, upon the implied contract of an innkeeper that he will deliver to his guests the property.which tbej entrust to him, as it is like a declaration in trover for the conversion of the property, as in case for á neglect or violation of duty by an innkeeper.

The justice probably considered it to be in assumpsit, like the other counts, as he overruled a demurrer to the declaration for the misjoinder.

If this is the correct view of the pleadings, there can be no doubt that the judgment rendered by the justice is erroneous, and should have been reversed by the county court, it being against one only of two defendants in an action in form ex con-tractu.

It was insisted, in behalf of the defendant in error, that the error of the justice (if he had committed one) was merely formal, and did not affect the merits of the case; and that in such cases the court to which the cause is removed by a writ of cer-tiorari will not reverse the judgment.' To maintain this position the counsel for the defendant in error referred to section 223 of chapter 88 of the revised statutes, which provides that the judge of the county court shall proceed and give judgment in the cause as the right of the matter may appear, without regarding technical omissions, imperfections or defects in the proceedings before the justice, which did not affect the merits, etc. This provision cannot be viewed so as to give the judge of the county court any authority to disregard the legal rights of the parties or the plain rules of law, in order to accomplish what he may suppose to be substantial justice. Gage v. Reed, 15 Johns., 403. Allusion was made in the argument, by the counsel for the defendant in error, to section 18 of chapter 100 of the revised statutes. By that it is provided that in actions founded on contract against several persons, the plaintiff may discontinue against any of the defendants, and proceed against the remainder. If this provision should be held to apply to proceedings in justices’ courts, it cannot avail the defendant in error. He did not discontinue against Smith, but prosecuted his action against both of the defendants; and the justice, without finding at all as to Smith, rendered a judgment against Hibbard alone.

Tbe judgment must be reversed.


author: Wl-IITON, J.

text:
    Abbott vs. Bahr.
    1. Action. — No action can be maintained for an injury sustained by means of tbe perjury of another in the course of a trial of an action or other legal proceeding. So held, in regard to a false affidavit of a party before the officers of a land office, whereby he was enabled wrongfully to enter and obtain title to land as a preemptor, which had been entered by another, and to get such prior entry vacated.
    2. Pbacticb. — The ruling of the court below upon a motion for nonsuit, or in arrest of judgment, cannot be reviewed in this court unless such motions and the ruling of the court thereon are presented by a bill of exceptions.
    (3 Chand., 210.)
    ERROR to tbe Circuit Court for Sheboygan County.
    Tbe case is fully stated in the opinion of the court.

      J. T. Clark, for plaintiff in error.

      A. L. Collins, for defendant in error.
   Wl-IITON, J.

Bahr, the defendant in error, commenced a suit against the plaintiff in error, in the Sheboygan circuit court, and in his declaration alleged in substance, that he purchased of the United States a quarter section of government land, situated in the Green Bay land district; that his entry and purchase of the said land was not subject to any preemption claim thereto, arising under the laws of the United States; that the defendant, in order to establish a preemption claim to the said land, made an affidavit before the register and receiver of the Green Bay land district, in conformity to. the laws of the United States; that by the laws of the United States the said defendant was required to. prove by his- o.wn oath,, before the said register and receiver (among other things), that he was not the owner of three hundred and twenty acres of land in any state or territory of the United States, in order to establish his right of preemption to the said land ; that the affidavit so made by the said defendant did set forth the fact that he was not the owner of said quantity of land in any state or territory of the United States; that the affidavit in that particular was false, and that the defendant knew it to be false, by means of which false affidavit the entry of the said plaintiff was set aside, and he lost the said land, etc. The declaration was in case. The defendant pleaded the general issue, and also a special plea, denying that he was the ower of three hundred and twenty acres of land, etc. At the trial a verdict was found for the plaintiff, for the sum of $220, on which the court rendered a judgment. By the return to the writ of error, it would appear that when the plaintiff had closed his case, the defendant moved the court for a nonsuit, and that after verdict he made a motion in arrest of judgment. But as there is no bill of exceptions, we cannot notice these motions, nor the ruling of the court upon them.

We must confine ourselves to the record. And we are satisfied that the declaration does not set forth a good cause of action. The cases cited by the counsel for the plaintiff in error clearly establish the proposition that no action can be maintained for an injury sustained by a party by means of perjury committed in the course of a trial of a former suit. Davenport v. Simpson, Cro. Eliz., 520; Eyres v. Sedgwick, Cro. Jac., 601; Smith v. Lewis, 3 Johns., 157. The reason given is, that courts will not permit the former suit to be again tried in this form of action, as it must be, if the suit is entertained; the gist of the action being not the perjury committed, but the unjust recovery consequent upon it. The case at bar cannot be distinguished, in principle, from those cited by the plaintiff in error. The proceeding in which the perjury is alleged to have been committed was quasi judicial in its investigation in pursuance of law, by tbe officers of tbe government of tbe United States, for tbe purpose of determining tbe rights of tbe parties to tbe land in dispute; and 'to entertain this suit, and try tbe matter over again, would accomplish tbe mischief which the rule above alluded to was intended to prevent. The cases cited by the defendant in error are applicable to another state of facts. It is true, as was stated in tbe argument of bis counsel, that a false statement, by means of which a person is defrauded, is just as clearly a good foundation for an action at law, when made on oath, as when unaccompanied by any such solemnity. But this does not meet the difficulty. The reason why the suit cannot be maintained is, not that the false statement was made on oath, but because it was testimony taken in the course of a judicial investigation, before a tribunal clothed with authority to decide the matters in controversy between the parties, and was taken in relation to the matter decided. Should the judgment recovered in this suit be permitted to stand, the case, would present this anomaly; that while the land which was the subject of controversy between the parties would belong to the plaintiff in error, the reason for the recovery against him in this suit would be the injustice of the order or decree of the officers of the United States, by which it was awarded to him. To such a proceeding the strong language of C. J. Eyre, quoted by Kent, C. J., in the case of Smith v. Lewis, above cited, which, in principle, he applied: Shall the same judgment,” he says, “ create a duty for the recoverer, upon which he may have an action of debt, and a duty against him, upon which an action will lie? This goes beyond my comprehension.” It maybe asked with equal force in this case, Shall the adjudication of the officers of the United States have the effect to give the land to the plaintiff in error, and at the same time create an obligation on his part to pay to the defendant in error the damage which he has sustained bj*- reason of that adjudication?

We are satisfied that the judgment must be reversed.

Note. — In tbe case of Stowell ®. Jfild/red, 26 Wis., 504, it was held that the perjury of a successful party called as a witness in an action at law, by the opposite party, if subsequently discovered, was a sufficient ground to enjoin the collection of the judgment so rendered upon the false testimony of the party who so recovered it.


author: WhitoN, J.

text:
    Benaway vs. Conyne and another.
    1. Jtjrt. — The statute being silent as to the manner in which a jury is to be drawn, it is sufficient if the drawing is fortuitous.
    2. Trial — Exclusion on Witnesses. — It is a matter entirely within the discretion of the court whether witnesses shall be excluded from the court room while other witnesses for the same party are testifying, and the action of the court on this matter cannot be assigned for error.
    3. Slander — Pleading-. —Where it was objected to a declaration by husband and wife for slander of the wife, that it was not distinctly alleged that they were husband and wife at the time of speaking the alleged slanderous words, which imputed to the wife criminal intercourse with one not her husband: Held, that as by the law of Wisconsin, both adultery and fornication are criminal offenses, the declaration was sufficient, as if the plaintiffs intermarried after the speaking of the words, still it was necessary that both husband and wife should join in a suit for speaking them.
    4. Verdict. —Where the verdict in an action for slander was “guilty of willful and malicious slander,” and assessed damages: • Held, that by fair intendment it referred to the slander charged in the declaration.
    (3 Chand., 214 )
    ERROR to the Circuit Court for Roch County.
    This was an action of slander brought by Conyne and his wife against Benaway for stating he had had criminal intercourse with Mrs. Conyne, one of the plaintiffs.
    At the trial the defendant’s counsel objected to the manner of drawing and selecting the jury, which was that the clerk had a package of slips containing the names of the jurors which he held in his hand, drawing from it a slip at a time containing the name of - a juror, and defendant’s counsel insisted that the court should, direct the clerk to put the names of all the petit jurors in a box or hat, and that they be drawn from thence by lot; but the court refused to give the desired -direction, and against the defendant’s objection allowed the clerk to select the jury in the manner first above indicated. Before the case was opened, the defendant’s counsel requested the court to exclude from the court room during the opening of the case, the plaintiffs’ witnesses, and that they be kept apart and not allowed to hear each other testify; but the court refused this request. After the case was opened for the plaintiffs, the defendant’s counsel moved the court to nonsuit the plaintiffs on account of defects in their declaration, it not being alleged that Mrs. Go-nyne was the wife of her coplaintiff, Abram Conyne, at the time of the speaking of the alleged actionable words, but this motion was denied. The jury found the defendant “guilty of willful and malicious slander,” and assessed the plaintiffs’ damages at $400. A motion to set aside the verdict and to arrest j udgment, for the reason urged in support of the motion for a nonsuit, and because the verdict of the jury was uncertain and insufficient, was denied, and the defendant brought this writ of error.

      D. Noggle, for plaintiff in error,
    argued that the court erred in the method adopted to draw and impanel the jury, and in refusing to exclude the plaintiffs’ witnesses from the court room as asked, and cited 1 Gfreenl. Ev., § 432 ; 2 Phil. Ev., 683; 6 Bing., 638; 4 Carr & P., 350, 632; that the court erred in refusing to nonsuit the plaintiffs {Ryan v. Madden, 12 Yt., 51), and in overruling the motion in arrest of judgment. Greenl. Ev., 584; Grraham on New Trials, 133, 160; 3 Wend., 366.

      Bennett & Hudson, for defendants in error,
    contended that as there was no statute or common law direction as to the manner of impaneling the jury, it was enough that it was fortuitous. Terr. Stat., 407, § 8; R S., ch. 157, §§ 1-5. That the method requested was irregular and unprecedented. 3 Barb., 548. That the refusal to exclude the plaintiffs’ witnesses was a matter of discretion, and could not be assigned for error. ' 3 Hill, 159 ; 4 id., 119 ; 3 Barb., 31. That tbe defendants could not move for a nonsuit on account of insufficiency of the declaration. 3 Barb., 419. That the allegation of the existence of the marriage relation, though not specific as to the time of speaking the slanderous words, was sufficient after verdict. 11 Johns., 141; 13 id., 87 ; 1 Chitty Plead., 679; 1 Saund., 228 and notes; R. S., ch. 100, § 7. And that whether the plaintiffs were married or not, the slander as alleged and proved, admitted the marriage.
   WhitoN, J.

This was an action on tbe case, for slander, brought by the defendants in error (who are husband and wife), against the plaintiff in error, for alleging that the wife had had carnal intercourse with him. At the trial, the jury returned a verdict for the plaintiffs, upon which the court rendered a judgment. The errors assigned by the plaintiff in error are:

First. That the court erred in refusing to direct the clerk properly to draw the jury. Second. In refusing to exclude the plaintiffs’ witnesses from the court room during the progress of the trial. Third. In refusing to order a nonsuit; and Fourth. In overruling the motion in arrest of judgment.

By the bill of exceptions, it appears that after the jury had been drawn, and had taken their place in the jury box, the judge was requested to order the clerk to draw a new panel of jurors, for the reason that the clerk had not drawn the names of the jurors from the box, but had held slips of paper, with the names of the jurors written thereon, in one hand, and had drawn them out with the other. The judge then inquired of the clerk if the names of the jurors in the box had been drawn fortuitously, and upon being informed by the clerk that they had been so drawn, decided that there was no necessity for drawing a new panel. It appears that the attorney for the defendant then made a formal motion to have the names of the jurors in attendance put in a box, and drawn out, four at a time; which motion was overruled by the court, to which decision the counsel for the defendant excepted. It appears from the bill of exceptions, that after this motion had been overruled, the clerk informed the judge that nine jurors had been summoned by a venire facias, issued after the term of the court had commenced ; that he had written the names of the jurors thus summoned on slips of paper of a different color from those containing the names of the other jurors, and that in drawing the jury in the box, he had endeavored to get about one-third of those last summoned, as they composed one-third of the whole number in attendance. Another motion was then made by the counsel for the defendant for a new drawing of the jury, which was overruled by the court, to which the defendant excepted.

We see no error in the ruling of the judge. It appears that the counsel for the parties witnessed the drawing of the jury, and that neither of them made any objection to the manner in which the drawing-was conducted.

As our statute is silent in respect to the manner in which jurors are to be drawn, it is sufficient if the drawing is fortuitous. Whether the slips of paper containing the names of the jurors are placed in a box or held in the hand of the clerk and drawn out fortuitously, is entirely immaterial, and any other mode of obtaining a jury which ensures fairness would be equally free from objection. The second error assigned is, that the court erred in refusing to exclude the plaintiffs’ witnesses from the court room during the progress of the trial on the part of the plaintiffs. It appears from the bill of exceptions, that a motion was made by the counsel for the defendant, to have the plaintiffs’ witnesses excluded from the court room and kept out of the hearing of the testimony given on the part of the plaintiffs, and during the opening of the cause on the part of the plaintiffs and' the reading of the declaration. The judge refused to make the order asked for on the ground, as stated in the bill of exceptions, that he was not aware that the court had the authority to make such an order in civil cases, and stated that if he had the authority he would make the order.

It is argued on tbe part of the plaintiff in error, that as it depends upon the exercise of the discretion of the judge, both in civil and criminal cases, whether the witnesses shall be excluded from the court room or not, while the other witnesses on the same side are testifying, the court committed an error in refusing to make the order in this case. That it was not an exercise of discretion, for which a writ of error will not lie, but an error of law, because the judge stated that if he had the power to exclude the witnesses, he would make the order asked for by the counsel for the defendant. There is no doubt that it is a matter entirely within the discretion of the judge, whether the witnesses shall be excluded or not while the other witnesses on the same side are giving in their .testimony. 1 Greenl. Ev., 482; 3 Phil. Ev., 395; 7 Car. & P., 350; 6 Bing., 638. But admitting that the view taken of the matter by the counsel for the plaintiff in error is correct, and that the refusal of the judge to exclude the witnesses for the reason he gave would have been error, if the order he was requested to make had been to exclude the witnesses on the part of the plaintiffs while the other witnesses of the plaintiffs were testifying, it will be seen by a reference to the bill of exceptions, that the motion which was overruled was for an order much more comprehensive.

It was not only to exclude the plaintiffs’ witnesses while their other witnesses were testifying, but also during the opening of the case on the part of the plaintiffs and the reading of the declaration. No elementary work, nor any adjudicated case which has fallen under my observation, authorizes the exclusion of witnesses from the court room except while other witnesses on the same side are testifying. 1 Greenl. Ev., see. 432, and note. We are of opinion that in overruling the motion no error was committed. The third and fourth errors assigned will be considered together.

It appears that a motion for a nonsuit and the motion in arrest of judgment, were both founded upon an alleged defect in the declaration, with the additional reason in support of the latter motion that the verdict of the jury was defective. The plaintiff in error contends that the declaration is insufficient, because it does not charge the uttering of actionable words, and because it does not allege that the plaintiffs were married at the time the words were spoken. We are satisfied that neither objection is well taken. The words by which the charge of carnal intercourse was made by the defendant, although too vulgar and indecent to find a place in any dictionary of our language, convey to the mind of the reader of the declaration, as they must have conveyed .to the minds of those who heard them uttered, the charge of sexual intercourse with the defendant. It is true that they are not aided by an innuendo, for that cannot extend their meaning, but taken by themselves, they convey the idea that the defendant had had carnal knowledge of the body of the female plaintiff.

The objection that the declaration does not allege that the plaintiffs were husband and wife, at the time when the words were uttered, merits more consideration.

The manner in which the averment, that the plaintiffs were husband and wife, is made in the two first counts, is as follows : After the statement, in the introductory part of the declaration, of the good character of Mary Ann Conyne, the wife of Abram A. P. Conyne, the declaration goes on to state that the defendant, contriving and maliciously intending to injure the said Mary Ann Conyne, wife of the said Abram A. P. Conyne, on, etc., at, etc., spoke the words of and concerning the said Mary Ann Conyne. The third count charges the speaking of the words, of and concerning the said Mary Ann Conyne, the wife of the said Abram A. P. Conyne. The objection urged by the counsel for the plaintiff in error, to this mode of averring the fact that the plaintiffs were husband and wife is, that it does not appear that they were then husband and wife; that the declaration may be true, and yet their marriage may have taken place since the words were uttered. Without stopping to inquire whether this is a fair or a hypercritical construction of this averment, we are entirely of opinion that it is entirely immaterial, for the purpose of sustaining this action, whether the plaintiffs were married before or since the words were uttered. Our criminal code punishes both adultery and fornication, and, if Mrs. Conyne was unmarried, she could have maintained an action in her own name against the defendant for speaking the words set out in the declaration. Miller v. Parish, 8 Pick., 384. And her marriage, after the words were spoken, to her present husband, would make it necessary to join him as a plaintiff in the suit. It is no objection that the innuendo following the words states that the defendant thereby intended to charge her with the crime of adultery. The innuendo cannot extend or enlarge the signification of the words, and if, as is contended by the plaintiff in error, the declaration does not contain the averment that the plaintiffs were married at the, time the words were spoken, the innuendo may'be rejected as surplusage, and the declaration would be good. 1 Chitty’s Plead., 436-8. If our statute punished adultery and not fornication, and, in consequence, no action could be maintained for charging unmarried persons with sexual intercourse, it would, of course, be necessary for the declaration to allege that the words were spoken of a person who was married; but it can make no difference in the present case.

Another point was argued by the counsel for the plaintiff in error, arising from the verdict of the jury. The verdict is in these words: “ We, the jury, find the defendant guilty of willful and malicious slander, and assess the plaintiffs’ damages, four hundred dollars.” It is insisted, on the part of the plaintiff in error, that it does not appear by the verdict, of what slander the jury found the defendant guilty; whether that charged in the declaration, or some other. But we think that the willful and malicious slander found by the verdict, must, by fair intendment, mean that complained of in the declaration. Porter v. Rummery, 10 Mass., 64.

Judgment affirmed.


author: Hubbell, C. J.

text:
    Stephens vs. Marshall.
    1. Mill Dam Law — Effect of Repeal. — Under the mill dam law of 1840, the right of the mill owner to maintain his dam and of the land owner to compensation for the lands so flowed by it, became fixed and vested by the flowing of the land beyond the power of the legislature to take them away or to remit the parties to their common law rights and remedies by a repeal of the law. Contra Pratt v. Brown, 8 Wis., 603.
    2. Same. — The compensation of the land owner in such a case can be obtained under the provisions of the act which as to such cases is irre-pealable and hence an action on the case for damages sustained by such flowing after the repeal of the mill dam act of 1840, cannot be maintained. Contra Pratt r. Brown, 3 Wis., 603.
    (3 Chand., 222.)
    EEEOE to tbe County Court for Sauk County.
    Action on tbe case for flowing certain lands owned by the plaintiff through which there passed a running stream, by means of a mill dam erected thereon by the defendant. Plea not guilty. At the trial before the court without a jury, it appeared that about twenty-five acres of plaintiff’s lands were overflowed by means of the dam in question, and that the damages were from $25 to $500. The dam was erected under what was known as tbe “ mill dam act ” of 1840, and was afterwards swept out by flood and immediately rebuilt by defendant, and it was claimed that by the repeal of the mill dam act by an act which took effect January 2, 1850, before the commencement of this suit, that therefore the defendant was liable for such injury as at common law; and on behalf of the defendant it was • contended that the right which he had acquired under the mill dam act of 1840, to maintain the dam was a vested right and could not be taken away by a repeal of the act. Finding and judgment for the defendant, and the plaintiff brought error.

      Collins, Smith & Tappan, for the plaintiff in error,
    claimed that by the repeal of the mill dam act the defendant lost all rights acquired under it, and was thereafter liable for maintaining the dam and flowing plaintiff’s land, as at common law ; that the rights which he acquired under the mill dam act were not in the nature of a contract and were not vested rights; that the mill dam act having been repealed the land owner could no longer proceed under it, but was remitted to his rights and remedies as at common law, and cited Butler v. Palmer, 1 Hill, 324; 5 Cranch, 281; 6 id., 329 ; 4 Dallas, 372; 1 Bin., 601; 8 Watts, 517 ; 1 Blackf., 451; Key v. Goodwin, 4 Moore & Payne, 341; 4 Wend., 410; 6 id., 526; Newcomb v. Smith, 2 Pin., 131; 4 Wheat., 518 ; Fletcher v. Peck, 6 Cranch, 87; Territt v. Taylor, 9 id., 43 ; 1 Kent Com., 413-420 ; 6 Wend., 210, 551-554.

      G. G. Remington and J. H. Knowlton, for the defendant in error,
    cited 6 Band., 345; 1 Aik., 121; Smith’s Com., §§ 375, 377;. 1 Bay., 179; 2 Cranch, 272; 12 Serg. & B., 363, 372; 4 id., 401; 2 G-allis, 105; 8 Wheat., 493 ; 1 N. H., 199 ; 2 Greenlf., 28; 1 Blackf., 220; Smith’s Com., §§ 149-151; 5 Bing., 177, 489; 7 Cranch, 164; 2 Hill, 238; 7 Johns., 499; 11 Mass., 364; 11 Wend., 667; Paulet v. Sandgate, 19 Vt., 621; 5 Mass., 326.
   Hubbell, C. J.

The constitutionality of the mill dam law of 1840 was established by this court in Newcomb v. Smith, 2 Pin., 131. The law, however, was repealed by an act which took effect on the 2d day of January, 1850; and the present case presents a question growing out of the repeal. For reasons unexplained, the legislature, on abrogating that important and peculiar statute, made no provision for the rights of persons whose property had been taken or invested in pursuance of its authority. To the general saving clause found in the revised statutes (sec. 2, p. 757), or to the provision in the constitution of the United States, prohibiting the states from passing any law, impairing the obligation of contracts, they must look for protection.

The facts of this case are as follows: The defendant in error, some time in the year 1849, erected on his own lands a saw mill and dam, by means of which the waters of “ Dell Creek ” were caused to flow back and cover the lands of the plain tiff in error. No question is made, but that this erection and the consequent flowings, were authorized by law, then in existence. In January, 1850, and after the repeal of the act of 1840, a portion of the same was carried away by a flood; and the water fell to the ordinary limits of the channel of the creek. As soon afterwards as it became practicable, the defendant in error repaired his dam, and again caused the water to flow upon the land of the plaintiff in error, as in the first instance. Eor this act, suit was brought in the county court of Sauk county, by an action on the case.

The county court held the action not maintainable; and to reverse that-decision, error is brought to this court. Previous to the repeal of the act of 1840, the plaintiff in error had instituted no proceedings to recover compensation for the land overflowed. It is contended now that the repeal of that act, abrogated all the rights of the parties under it, and restored all their common law rights and liabilities. A majority of this court think otherwise, for the reasons which I shall proceed briefly to state. The general “ saving clause ” in the revised statutes before referred to, is as follows: “ The repeal of the acts mentioned in the preceding section ” (including the act in question) “ shall not affect any act done, or right accrued or established, or any proceeding, suit or prosecution had or commenced, in any civil case, previous to the time when such repeal shall take effect. But every such act, right and proceeding, shall remain as valid and effectual as if the proyision, so repealed, had remained in force.”

It is clear that the defendant in error must show some right accrued or established,” previous to January 1, 1850, or he cannot set up the repealed act to justify a subsequent flowing. It becomes necessary to inquire then, what were the rights of the parties prior to that date ? The defendant in error, in 1849, bad erected his mill and dam, and caused tbe flowing of the lands in question. This act was then lawful. He bad lawfully expended his labor and means on bis own land, and bad lawfully taken possession of, and injured tbe land of tbe plaintiff in error, by virtue of tbe act of 1840. But in consequence of these several acts and proceedings, has neither of the parties acquired rights? The legislature could not delegate to the mill owner the power to exercise the right of eminent domain, without providing for compensation to the land owner. The fourth section of the act provides, that “ any person whose land is overflowed or otherwise injured by such dam may obtain compensation therefor, upon his complaint before the district court,” etc. There must be a time w.hen this right to compensation accrues, or is established. Is it immediate and consequent upon the act of overflowing, or is it dependent upon the recovery of a judgment, in the manner provided by the act? If the latter, then the rights of the mill owner, had there been no repeal, must have remained suspended forever, or until the owner of the land overflowed had chosen to prosecute and recover judgment. This is not a sound or sensible construction of tbe act. The intention of the legislature was, to favor the interests of mill owners and make investments in that species of property, desirable and safe. And for that purpose (whether wisely or not, is not a question here) it gave, absolutely, the right to cause the overflowing, subject to the conditions and liabilities specified in the act. And those conditions and liabilities, when the flowing did take place, secured just as absolutely, the corresponding rights of him whose land was overflowed. The moment the flowing took place, the land was appropriated. It was “ taken for public use,” and the right to compensation was established. Such were the rights of the parties in this case, under the law as it existed in 1849. The law, and the acts of the defendant in error, in pursuance of its provisions, constituted a contract between him and the plaintiff in error, and between the state and each of them. No act of either party could deprive tbe other of his vested rights under this contract; nor could the repeal of the law by the legislature, abrogate or impair its obligations.

The defendant in error, by his acts in 1849, had acquired and established a right, not only to “ erect,” but to “ maintain a watermill and a dam to raise water for working it,” in the language of the act of 1840. And if to maintain it, then to repair or replace it, in case it should be damaged or carried away by floods, or otherwise, as occasion might require. The rights of the parties having been once vested and established, remain; and so much of the law remains as may be necessary to enforce or preserve them. The proceedings of the plaintiff in error, to obtain compensation for his land overflowed or injured, by the present action, is erroneous. He must take his remedy under the statute.

Some stress was laid, on argument, upon the want of mutuality in the alleged contract between the parties. And it was assumed, not only, that the plaintiff in error was a party to it by compulsion, but that by failing to commence an action for his compensation, prior to the repeal of the act, he had lost all remedy, unless restored to his common law rights. That he was a party by compulsion does not alter the case. This occurs in every instance where the property of individuals is taken for public use by railroad companies or other bodies. But the contract rights of the parties are not less effectually secured in law, than if the obligations were voluntarily assumed. The remaining part of the obligation is disposed of by the views already expressed.

Some importance was also attached to the apparent absence of judicial decisions directly sustaining the main point in this case, to wit: the time when the respective rights of parties became fixed and established. When principle is clear, authority is of less consequence. The power of the legislature to abrogate grants or franchises, after private rights have become established under them, has not been asserted since the Dartmouth College Case. The general principle is settled by authority. But this case presents a new class of facts, and the question is, whether, in fact, any rights were established when the repealing act took effect. This point has been discussed and settled, upon the general scope and purpose of the act, the circumstances and relations of the parties, and the rights, naturally and necessarily arising therefrom. Authority is not, however, entirely wanting. In the case of People v. Supervisors of Westchester, 4 Barb., 64, nearly the same question arose. By an act passed in 1845, commissioners were appointed to alter and improve a road in Westchester county, and provision was made that “ the damages sustained by any owner or occupant of land, by reason of any such alteration or changes of routes, shall be ascertained, levied and paid.” And further provision was made to ascertain the damages by the assessment of a jury. During that year the road was laid out, and the damages sustained by the relators were duly assessed by a jury in the manner provided by the act.

But the board of supervisors refused to order and direct such damages to be raised and paid to the relators; and in 1846, the legislature repealed the act. In the mean time, the lands of the relators had been thrown open to public use. The court held that the right of the relators to the damages, as found by the jury, could not be defeated by the subsequent act of the legislature. And the case turned principally upon that point. But the learned judge who delivered the opinion of court discusses another point, and intimates that the decision might have rested upon that, had it been necessary. “ The law of 1845,” says he, “ authorized the agents of the state to take property of the relators, and provided a constitutional compensation. It was equivalent to an agreement on the part of the state to take as much of the property as might be necessary for the public use. and to pay the owners such damages as should be assessed by a jury. The assent of the owners is compelled in which respect it differs from a contract between individuals. The transaction is in the nature of an executory contract forced upon the relators by the state. Before any further action, the law might have been repealed, and things would have been in statu quo; but as soon as the commissioners proceeded to take the land, a consideration passed, rights accrued, and the contract became sacred in the view of the federal constitution. The legislature says to the owners, “ we will take your land and pay you for it.”

“ They may change their intentions before the land is taken ; but, after the land is taken, the contract is so far executed as to be irrepealable as to those whose rights are affected.” This is a clear and sensible exposition of the very principle decided in the present case. Again, in Harrington v. The County Commissioners of Berkshire, 22 Pick., 263, Chief Justice Shaw says, “ when the highway is once completely established, and the damages to the land once settled by the modes pointed out by the law, the right of the public to a perpetual easement, etc., becomes complete, and the right of the owner to his damages or compensation for the lien or qualified right acquired by the public in his land becomes vested.” In both of these cases, the duty of assessing the damages was assumed by the state upon taking the land for public use. And it might be well urged, that the public acquired no right in the land until the damages were actually assessed and liquidated, or paid. But in the case before us the right to recover the compensation is devolved upon the owner of the land after it is overflowed or injured. There is reason why that right should become perfect and absolute in him as soon as his land is so taken. And there is yet stronger reason why such act of taking should vest in the mill owner his right to hold and use it. Before the latter can exercise the act of 'taking, he must erect his mill and dam, and make every expenditure requisite for the complete and permanent enjoyment of the legislative grant. On his part, the contract is completely executed, and so far as it depended on his own volition; and his rights, as well as his liabilities, under it, ought to, be alike irrepealable. This court cannot permit the monstrous injustice which would follow from the act of a repeal, under any other view of the case than that which has been taken.

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


author: Jackson, J.

text:
    Medbery and another vs. Sweet.
    1. Contract — Measure or Damages. — M. &'H. agreed to furnish S. for transportation from Milwaukee to Buffalo, during the first trip around of his line of steamers, 2,200 barrels of flour, and to pay for transporting the same thirty-five cents per barrel; S. was ready and offered to perform his part of the contract at the proper time, but M. <& H. refused to furnish the said flour for transportation by the steamboat America, which had a very light freight on her first trip down: Held, that the contract was not in the nature of a charter party, but as a contract to furnish a given amount of freight for a particular trip at a stipulated price, and that the proper measure of damages for breach of the contract was the contract price of the freight, thirty-five cents per barrel.
    2. Same. — The amount of damages in such case, or where in the case of a charter party it is sought to recover for dead freight, damages for the breach of contract, may be reduced or mitigated by showing that other freight was or might have been procured.
    (3 Chand., 231.)
    ERROR to the Circuit Court for Milwaukee County.

    The case is stated in the opinion of the court.

      A. D. Smith, for plaintiffs in error.

      James & Orton, for defendant in error.
   Jackson, J.

This was an action of assumpsit, brought by Alanson Sweet, the plaintiff below, to recover of the defendants below, John W. Medbery, Martin B. Medbery and Jacob A. Hoover, partners, doing business under the name, firm and style of Med- bery & Hoover, damages for the breach of a special contract, made and entered into, in writing, between the said parties, by which Medbery & Hoover agreed to furnish Sweet, for transportation from Milwaukee to Buffalo, during the first trip round of the line of steamers, two thousand two hundred barrels of flour, and to pay for transporting the same at the rate of thirty-five cents per barrel.

The agreement in writing, having been proved, was offered in evidence. It was also proved that the plaintiff Sweet was ready and offered to perform his part of the contract; that the steamboat America was in readiness at the time and place appointed, to take the flour on board, to be conveyed to Buffalo, and that she had a very light freight on her first trip down ; and that the defendants refused to deliver the flour according to their said agreement.

Several errors are assigned by the plaintiffs in error, but the only one which appears to be relied on, and which we deem material to consider, is as to the charge of the circuit judge, which was: “That if the plaintiff was in time in demanding the flour, and the defendants had broken their contract, then the measure of damages for them to find was thirty-five cents upon each barrel of flour mentioned in said agreement or memorandum, in writing, unless the defendants had shown by proof, on their part, that the plaintiff supplied himself with other freight, or might have done so.”

Now, proof having been given of the contract, and of a readiness and an offer to perform by Sweet, and a refusal to perform by Hoover & Medbery, the only inquiry is, Whether the rule of damages as laid down by the circuit judge in his charge, to the jury is correct? The contract made between the parties cannot be regarded, strictly, speaking, in the nature of a charter party; but as a contract to furnish a given amount of' freight, for a particular trip, at a stipulated price. But whether it be treated either as the one or the other, the plaintiff is entitled, as in case of contracts generally, to recover compensation for the actual loss or injury sustained by the breach of the contract. 2 Greenl. Ev., § 253; 7 Hill, 61-9. The rule, however, by which the amount or extent of redress should be ascertained, is a question of law. Sedgwick on Damages, 30. In the case of a charter party, where it is sought to recover for dead freight, damages for the breach of the contract may be reduced or mitigated bv showing that other freight was or might have been procured. Hechsher v. McCrea, 24 Wend., 315. So, in the case at bar, the damages in like manner might have been reduced by introducing such proof upon the trial. Shannon v. Comstock, 21 Wend., 459; Hechsher v. McCrea, 24 id., 315; Costigan v. Mohawk and Hudson Railroad Co., 2 Denio, 614; Kleimer v. Catara, 2 Gallis, 61-66. But the burden of proof to show such facts in mitigation or reduction of damages rests, in all such cases, upon the delinquent party. 2 Greenl. Ev., § 261; 2 Denio, 615, 616.

In the case at bar no such facts were proved, or offered to be proved, by the defendants on the trial. In the absence of . any such proofs, the measure of damages is the contract price of the freight 2 Denio, 615; 2 Greenl. Ev., § 261. We see no error therefore, in the charge of the circuit judge, and the judgment of the court below must be affirmed.

Judgment affirmed, with costs.


text:
    Hodson vs. Carter.
    1. Agbeement — -Evidence. —Where an action was brought to recover damages for the nonperformaee of an agreement for the sale of a ’quantity of barley, signed by the vendor only, which recited that it ■was “ agreed with C., the defendant, for the barley at thirty cents per bushel, to be delivered to H., the plaintiff: ” Held, that such writing contained all the essentials of a contract, and contained prima facie ■ evidence of the assent to and acceptance of it by H., the plaintiff.

      2. Same — Statute oe Feauds. — Tlie statute of frauds, which requires the memorandum of certain contracts “ to be subscribed by the party to be charged therewith,” does not require it to be signed by both parties to the contract; but it will be upheld and enforced if signed only by the party sought to be charged thereon by a suit. Olieney v. OooJc, 1 Wis., 413.
    3. Same — Action. — In an action upon a contract not under seal, it is competent for the plaintiff to show, by parol, that he is the party for whose sole benefit it -was made, although the engagement be not directly to or with him. Kimball v. Noyes, 17 Wis., 695.
    (3 Chand., 234.)
    ERROR to the Circuit Court for Bock County.
    This was an action of assumpsit brought in justice’s court by Hodson against Carter to recover damages for the nondelivery of four hundred bushels of barley, as specified in the written agreement set out in the opinion of this court, and the plaintiff had judgment for damages, from which the defendant appealed to the circuit court. At the trial in that court, the said written agreement was put m evidence, and oral evidence was given, showing that Hodson was the proprietor of the Janes-ville brewery at the time the contract was made, and that the defendant did not deliver any barley. Proof was given that barley was worth forty-two cents per bushel in December, 1847; and one witness testified to a conversation which occurred between the plaintiff and defendant September 30, 1847, about the barley, when the defendant had some with him, at which plaintiff looked, and defendant asked him if he did not want some of it; that plaintiff said he was not prepared to receive it; that he gave him all the barley was worth; that defendant said he could get more for it than he gave him. Counsel for plaintiff offered to show that the contract executed by the defendant was written in an account book belonging to the plaintiff, and kept at the Janesville brewery, the plaintiff’s place of business, and was in his handwriting, but, objections being made, the court excluded the evidence.
    The circuit judge charged the jury that the plaintiff was not entitled to recover, because the agreement did not appear to have been assented to by the plaintiff before the time when the barley was to have been delivered, and because the contract was not signed by the plaintiff, and the proof did not show that he was the person to whom the contract was delivered, or with whom it was made. The plaintiff moved for a new trial on the ground of misdirection of the circuit judge, but the motion was overruled, and judgment was given for the defendant ; and the plaintiff brought his writ of error.

      J. A. Sleeper, for plaintiff in error,
    argued that there was evidence in the case which ought to have been submitted to the jury to show that the contract was made as alleged, and cited Bussell v. Nicoll, 3 Wend., 112 ; Hawkins v. Chase, 19 Pick., 502. And it was not necessary that both parties should have signed the agreement; that the signature of the party to be charged was sufficient. Clason v. Bailey, 14 Wend., 484; Boget v. Merrill, 2 Caines, 117 ; that the acceptance of the agreement by the plaintiff, containing stipulations to be performed by the defendant, created a liability on the contract, though not signed by the plaintiff.

      I). Boggle, for defendant in error.
   Howe, J.

This was an action of assumpsit, wherein the plaintiff in error sought to recover of the defendant in error, damages for the nondelivery of 400 bushels of barley. Upon the trial of the cause in the circuit court for Rock county, the plaintiff introduced as evidence of the agreement, a writing, of which the following is a copy, viz:

“ Janesville Brewery, Sept. 13,1847.
Agreed with A. M. Carter for 400 bushels of good barley, at 30 cents per bushel, to be delivered in December next; the undersigned, A. M. Carter, agreeing to deliver the same to William Hodson. A. M. Carter.”

There was some other testimony introduced for the purpose of showing the connection of the plaintiff with the instrument above copied, which I do not think it necessary here to refer to. The court charged the jury (as we are informed by the bill of exceptions) “ that, under the proofs in the cause, the plaintiff was not entitled to a verdict, because the agreement upon which the plaintiff sought to recover was not proven to have been accepted by the plaintiff before the time when the barley (by its terms) was to have been delivered, had expired ; and further, because the contract was not signed by the plaintiff, and the proof did not show that he was the person to whom the contract was delivered, or with whom it was made.” To this charge the plaintiff excepted, and this exception is the only one I propose to consider.

The charge seems to combine three legal propositions, each one of which is submitted as a bar to the plaintiff’s right to recover. These propositions are as follows :

1. The instrument offered in evidence by the plaintiff is not evidence of a complete contract, because it does not contain the evidence of the plaintiff’s consent thereto.

2. If a mutual contract is proved by the instrument, it is a parol contract, so far, at least, as the plaintiff is a party, not being signed by him, and so void under the statute of frauds.

8. Admitting a mutual and valid contract to be proved by the instrument, the plaintiff’s right to sue upon it does not appear, because there is no evidence that it was made with him, or delivered to him.

In answer to the first proposition, it seems to me there is hardly less evidence of the plaintiff’s assent than of the defendant’s, to-wit: the written admission of the defendant himself. It is not denied that the defendant signed the instrument; and, by his signature, I think he must be understood to affirm the truth of whatever the instrument, by its terms, asserts. And I think the instrument plainly asserts, not simply that Carter promised to deliver barley to Hodson, but that there was an agreement between some competent parties for the delivery of barley by Carter to Hodson. When A. M. Carter asserts that he had agreed ” to deliver barley upon certain terms, he confesses, I think, more than the assent of his own mind to those terms. The legal definition of an agreement is, the consent of two or more persons, concurring respecting the transmission of some property, right or benefits, with the view of contracting an obligation. 1 Bou. Law Dic., Tit. “Agreement.” To constitute an agreement, says Lord Coke, six things must concur ; and he enumerates, as the first, second and sixth, a person able to contract: a person able to be contracted with; and the assent of the contracting parties. Co. Litt., 36, b. If either of these concomitants were wanting, there was no propriety in the defendant’s affirming he had agreed ” to deliver the barley upon the prescribed terms. Having so affirmed, we think it is at least prima facie evidence of the existence of all those essentials.

But a more serious question arises upon the second proposition contained in the charge. Admitting the assent of both parties to be sufficiently proved, is not' the agreement void for want of the signatures of both parties ?

Our statute declares that every such contract shall be void, unless the memorandum of such contract be subscribed by the parties to be charged therewith.” Clear and concise as this language may seem to us, the language employed in the 29th Car., chap. 3, was, if possible, still plainer. It required the memorandum to be “ signed by the parties to be charged by such contract.”

And yet this language has been construed as not requiring the signatures of the parties to be charged with the contract, but as requiring simply the signature of the party to be charged by the suit. And this construction has been established, in spite of the earnest protest of Lord Redesdale, through a series of adjudications, both at law and in equity, in England and in this country, by a weight of authority quite beyond the limits of questioning, and almost above the reach of criticism. See, for a review of these authorities, Clason v. Bailey, 14 Johns., 484. In New York, this construction has received the sanction of direct legislative enactment; for, when the revisers of their statutes recommended a clause by which they proposed to restore the law in this respect to what they supposed must have been its original intent, requiring the signatures of both parties to the contract, the legislature refused to concur in the recommendation. See Davis v. Shields, 26 Wend., 341.

Again, it is objected that, though the agreement may have been properly executed and sufficiently proved, yet the plaintiff cannot recover upon it, because it does not appear that the agreement was made with him, or that the contract was delivered to him. But, in suits upon simple contracts, this does not seem to be a material inquiry. If the contract be not under seal, it seems to be a general principle that the party for whose sole benefit it is evidently made, may sue thereon in his own name, although the engagement be not directly to or with him. 1 Chit. Pl., 4, and cases therein cited.

We are therefore of opinion that the instructions given to the jury by the court below were erroneous, and that the judgment of the court below must be reversed.