text:
    Tolle vs. Stone.
    Acts of de facto officers valid. —Upon an appeal from tie judgment of a justice of tie peace, tie district court cannot inquire into tie qualifications of tie justice •wio tried tie cause, and decide wietier ie is legally in office or not. Tie qualifications of a puilic officer, or iis rigit to tie office, cannot ie examined and decided collaterally. Tie acts of an officer cte facto are valid so far as tie puilic and tiird pergons are concerned.
    ERROR to the District Court for Grant County.

      Tolle commenced an action against Stone, before a justice of the peace, in Grant county. The cause , was removed, under the statute, to Cyrus K. Lord, another justice, who proceeded to try the case, and who rendered a judgment in favor of Tolle for $42.50. From this judgment Stone appealed to the district court. In the district court Stone moved the court to dismiss the suit, because—1st, Cyrus K. Lord, the justice who tried the cause, never executed a bond to the treasurer of the county, as required by law; and 2d, because at and before the trial there was no bond or oath of office of the said justice on record in the office of the clerk of the district court for Grant county, as required by law.
    It appeared that Lord was duly commissioned a justice of the peace on the 12th day of January, 1840; he took and subscribed an oath of office on the 10th of February, 1840, and executed a bond according to the form of the statute, signed by two sureties, but not by the principal, which was approved by the treasurer of the county, and which bond and oath of office were deposited with the clerk of the district court, and marked, “.filed 12thFeb-ruary, 1840,” but were never recorded in any book.
    Upon this state of facts it was insisted that Lord was not a justice of the peace, and could not lawfully entertain jurisdiction of any cause, and the court below decided, that not having complied with the requisitions of the statute as to his qualifications, he was not a legal justice of the peace, and dismissed the suit.

      Wiram, Knowlton, for plaintiff in error:
    1. It was too late to take the objection after issue joined and a continuance had been had before the justice. Stat. Wis. 333, § 7; 1 Brown (Pa.), 95.

    2. The bond, though not signed by the principal, was sufficient to bind the sureties, and was therefore good. Union Bank of Maryland, v. Bidgley, 1 Har. & Gill. 324; Andrews «. Beall, 9 Cow. 693.
    3. Though the bond and oath of office were not recorded, they were filed with the clerk, whose duty it was to record them, and that was sufficient. Young «. Commonwealth, 6 Binney, 88; Althorp n. North 14 Mass. 167.
    4. The title of an officer de facto to his office, cannot be inquired into collaterally or in a proceeding to which he is not a party. It is enough in all cases, except in quo warranto, that he was an officer de facto. People v. Adams, 9 Wend. 464 ; 3 Tomlinson’s Law Die. 280-287; Potter v. Luther, 3 Johns. 431.

      5. Lord, although he never gave bond according to law, if he accepted the office and took the necessary oath, he was an officer de jure, and he was only liable to a penalty. G-aZbreath v. Brown et al., 15 Mass. 107; 7 Am. Com. La.w, 144; Marburyn. Madison, 1 and 2 Cranch, 49.
    6. If Lord was not an officer de jure, he was an officer de facto, and his acts are valid so far as the public and third persons are concerned. 7 Am. Com. Law, 142; McKinstry v. Tanner, 9 Johns. 135; People v. Collins, 7 id. 549 ; 5 Wend. 231; 1 Hill, 674; MeKim v. Somers, 1 Penrose & Watts, 297.

      Mr. Beamans, for defendant in error.
   Irvin, J.

Upon examination of this case it appears that the plaintiff commenced, on the 2d day of September, 1841, a suit before a justice of the peace, in and for the county of Grant, against the defendant, by process returnable on the 9th of said month, when the parties appeared, and under the provisions of the statute, removed it before another justice of the peace, Cyrus K. Lord. The suit was to recover damages for injury done by defendant to a horse of plaintiff’s, and for which a jury found a verdict in favor of plaintiff for $42.50, on which the justice gave judgment, and from which the defendant appealed to the district court for Grant county, in which when the cause came on for further trial, the “defendant, by his attorney, moved the court to dismiss this cause, because —

“1st. The said C. K. Lord, before whom the cause was tried, has never executed a bond to the treasurer of Grant county, as required by the law to be executed by all justices of the peace, before entering upon the duties of his office.
“2d. Because, at and before the trial of the said cause before the said C. K. Lord, there was no bond or oath of office on record in the office of the clerk of the district court of Grant county, as required by law;” which motion was sustained, and the cause dismissed at plaintiff’ s costs, and to which decision exception was taken by plaintiff, and the cause brought here to correct the error complained of in that decision and judgment of the distript court.

The only question presenting itself here for the consideration of the court is, did the district court err in permitting the qualifications of O. K. Lord (the justice before whom the cause was tried) to be inquired into and acted upon collaterally % It is contended that the court did err, and in support of the position, reference is made to a decision of this court at a former session. Lask v. The United States, ante, 9 Wend. 464; 7 Am. Com. Law, 477, 478; and numerous other authorities. In 1 Penn; 297, in the case of McKim v. Somers, the question arose on an objection to a deposition alleged to have been taken before a justice of the peace, whose commission had been vacated by force of law. The decision of the court was against the objection, and inasmuch as the judge who delivered the opinion has gone fully into the consideration of the subject, we could not, perhaps, do better than to give his views as he has given them himself, believing as a majority of this court does, that it is a case in point. Judge Rogers says:

“The plaintiff also objected to a deposition in evidence on the ground that Joel C. Bailey, the person before whom the deposition was taken, was not a justice of the peace. Whether the facts alleged in the bill of exceptions would vacate the commission of the justice, we are not called upon to determine. Whenever an information is filed, it will be time enough to determine the question. At present we think it even improper to intimate an opinion. And this is not accorded to Mr. Bailey as a favor, but is nothing more than common, even-handed justice, that he should have an opportunity of being heard, and be permitted, if occasion should require it, either to traverse the facts, or contradict the conclusions of the law attempted to be drawn from them. It would be the height of injustice if we were now to determine, or even suffer his right to hold his commission to be called in question, in a cause in which he is not party and cannot be heard. The counsel for the defendant objected to the court going into the question whether he was a justice de jure at all, and in this we conceive they were in the strict line of their duty. They contended, and with a force that has not been weakened by the reply, that it was sufficient for their purpose that he held a commission from competent authority, and that in taking the deposition, which is an official act, he was acting in the district for which he was appointed; that tins constituted him a justice de facto, with at least colorable authority ; and that as long as the commission remained without being superseded by the Governor, or vacated by the supreme court, the validity of his acts could not be questioned. One would have supposed that these reasonable objections would have been entitled to respect; for, setting aside the extreme injustice of impeaching, or even impairing the right to an office, without giving an opportunity of hearing the party principally affected by the decision, the inconvenience, and I may add in some cases indelicacy, of the inquiry, would be intolerable.

If the plaintiff had been heard in this preliminary matter, the opposite party would have been permitted to controvert the facts by the introduction of testimony on their part, and this would open a scene which I should be sorry to see exhibited in a court of justice. An examination would ensue before the court, which in some cases would last a week, whether a deposition should be received, in a case of the most trifling nature and amount, as the court would be both judge and jury. The inconvenience of this novel doctrine would cause them to pause before they acceded to it. If I understand the counsel, they admitted the law, in its full force, as respects ministerial officers, but denied it as respects judicial officers. I should have been pleased to have seen some authority in which the distinction is taken; the reason for such a distinction is not very apparent. If this be law as regards ministerial officers, which may be shown by a host of authorities, I say. a fortiori, it should be so held in the case of judicial officers. ■ The law is formed on policy and convenience, reasons which apply with ten fold force to officers of the latter description.” And afterward, the same judge, in speaking of the case of The Commonwealth v. Richard Bache, says: “Richard Bache was indicted for an assault and battery on Aider-man Binns. The indictment contained two counts ; one for an assault and battery ; the other for an assault and battery upon Alderman Binns, while in the execution of the duties of his office. It was the opinion of the whole court, that Binns’ right to the office he held, could not be questioned on the indictment, and we accordingly suspended giving judgment, and put Bache to an information in the nature of a writ of quo warranto.”

A majority of this court considers this the true doctrine upon this subject, and as recognized by the authorities already referred to. 11 Viner’s Abr. 114; 7 Johns. 549; 5 Wend. 231; 9 Johns. 135; 15 Mass. 170.

We are therefore compelled to reverse the decision of the district court, with costs.

Dunn, C. J., dissented.

Note.—See Knowlton ex rel. v. Williams, 5 Wis. 308; In re Bridget Boyle, 9 id. 261; Dean v. Gleason, 16 id. 1.


source: Caselaw Access Project

author: Milleb, J.

license: Public Domain

text:
    Rowen vs. Taylor.
    1. Abatement.—Want of publication of notice in proceedings by attachment, is matter in abatement, and not in arrest of judgment.
    2. Arrest oe judgment.—Defects apparent on the record may be noticed by the court, although not pointed out in the exceptions; and a judgment may be arrested for an objection on the face of the record, though it was not assigned at the time of making the motion.
    3. Attachment—pleadings and judgments. — Where a plaintiff in attachment flies different declarations in different forms of action, there must be a separate verdict and judgment on each declaration; and where in such case there is a general verdict, without any special reference to the different declarations, judgment will be arrested.
    ERROR to the District Court for Dane County.

      Rowen sued out a writ of attachment against Taylor, for $100, or upwards. At the return term the first default was taken; and at the May term, 1842, the plaintiff filed two declarations; one in debt for $1,336.67, and one in case, claiming $2,000 damages, for a breach of simple contract; and at that term the second default was taken and a writ of inquiry awarded. Pending the execution of the writ of inquiry, and at the same term, and after the jury had been sworn, the defendant made his first appearance in the cause, and moved the court to dismiss the proceedings, because no notice had been published as required by the statute, but immediately withdrew his motion, and the inquest proceeded. The jury returned a verdict for $989.15 debt, and $80.50 damages. Taylor then moved the court to set aside the verdict and arrest the judgment, for reasons stated in the opinion of the court.
    The district court arrested the judgment and dismissed the proceedings.

      Edward V. Whitoh, and Moses M. Strong, for plaintiff in error :
    The judgment of the court below ought not to have been arrested and the suit dismissed. It was the duty of the court at the second term, to default the defendant, and the right of the plaintiff to file as many declarations as he had causes of action. Terr. Stat. Wis. 166, 167, §7. The matters alleged in the defendant’s motion are matters in abatement, or at most, grounds for a new trial only, and are not good in arrest of judgment.
    The defect in the proceedings, if any exists, is cured by the statute of amendments, especially after verdict, as in this case, and the judgment cannot be arrested on the grounds alleged. Terr. Stat. Wis. 257, 258.

      Field & BotMn, for defendant in error :
    1. The statute of amendments does not reach this case. A verdict which cures defects is a verdict upon an issue of fact in the cause, and not the verdict of a jury of inquest after a judgment by default.
    2. Attachment is a rigorous remedy and must be strictly pursued, and every provision of the law is to be rigidly construed against the plaintiff. Publication of notice comes in the place of a summons, and only amounts'to constructive notice. It is intended to inform, not only the defendant but all his other creditors, of the pendency of the proceedings, and the statute is peremptory, that where notice has not been published the writ shall be quashed; and the court is bound to notice the matter at any stage of the case before appearance and full defense made.
    3. The verdict is so uncertain that it cannot be applied to the declarations, and no judgment could be rendered upon it.
   Milleb, J.

This suit was commenced by attachment in the district court of Dane county, by the plaintiff against the defendant, on an affidavit alleging fraud. At the second term, in pursuance of the statute, the plaintiff filed two declarations against the defendant, and took a second default. A jury was then called and sworn to assess the damages, and afterward the defendant’s counsel filed a motion in arrest of judgment, on the following grounds.

1. That the attachment, affidavit and levy are defective.

2. There was no publication of the pendency of the attachment.

3. The proceedings are irregular, defective and uncertain.

Upon this motion the district court ordered that the judgment be arrested and that this cause be dismissed at the costs of the plaintiff. To reverse this judgment the plaintiff sued out this writ of error.

The attachment is informal but not defective. The affidavit is correct, according to the statute. The return does not state what property or effects of defendant were found in the possession of the garnishee, but he appeared in pursuance of notice and disclosed what were in his hands, which were choses in action. The proceeding, in this particular, should be considered correct, particularly at the time the objection was made.

As it regards the second objection, it appears that after the jury was sworn and part of the testimony received, the defendant by his attorney, moved the court to abate the proceedings for want of the publication of notice of the pendency of attachment, and immediately withdrew it, and let the investigation proceed. It also appears that although this was a judgment by default, yet the defendant, by his attorney, appeared when the jury was sworn. If the counsel had persisted in his motion to abate, there would have been no difficulty in the case. It was at the second term, and the first appearance of the defendant, and it would have been the duty of the court to abate the proceedings, for the law is imperative. But he withdrew his motion, and let the investigation proceed, until a finding to a large amount was returned against him. The practice of the law is a regular system, and in it there is a time for every thing. But even without this objection to the proceedings of the defendant’s counsel, the motion filed after the verdict does not meet his case. The motion is in arrest of judgment, for want of publication. The want of notice is matter in abatement, not in arrest. 4 Yates, 375.

On the third exception the record was examined thoroughly, and although the exception does not point out the irregularities or defects, yet the court may notice defects apparent on the record. A judgment may be arrested for an objection on the face of the record, though it was not assigned at the time of filing the motion or entering the appeal. Grasser v. Eckhart, 1 Binney, 575. In this case the plaintiff filed two declarations ; one in debt on a judgment recovered and other matters; the other in case for damages for a breach of contract. The jury were sworn generally, who reported a verdict in debt and damages, without any special reference to these declarations. Under the seventh section of the attachment law, the plaintiff, and every other creditor of the defendant, may file their declarations. This allows the plaintiff to file his declaration on the claim on which the attachment was issued, and also additional declarations, as other creditors, on other and different causes of action ; but there must be a separate judgment on each declaration filed. These two declarations are so dissimilar and inconsistent that they cannot support a general verdict. The same reason for arresting the judgment in this case exists, that would have existed if they were embraced in separate counts of the same declaration. Por this reason the district, court was correct in arresting the judgment.

Judgment affirmed, with costs


author: Dunn, C. J.

text:
    A Dark Colored Newly Decked Scow-Boat vs. Lynn.
    1. Attachment against boats and vessels.—A scow-boat, belonging to a particular port, and used as a lighter and wood boat in tlie river and harbor, is not liable to be proceeded against by attachment under the act for the collection of demands against boats and vessels.
    3. Act construed.—That act was intended to apply to steam-boats and sail, or other vessels of the larger class, engaged in carrying and transporting persons and property from port to port, and does not embrace scow-boats, ferry-boats and other smaller craft, confined in their use to particular ports or places.
    ERROR to the District court for Milwaukee county.
    Lynn, the defendant in error, took out an attachment from a justice of the peace in Milwaukee county, against a scow-boat, under the act to provide for the collection of demands against boats and vessels, for the purpose of collecting a demand for work and labor done on the boat in building it. The boat was owned by JDousman & Brown, of Milwaukee. On the trial, the justice gave judgment for the plaintiff for $27.87, from which Bousman & Brown appealed to the Milwaukee district court. On the trial of the appeal, it appeared in the evidence for the plaintiff, that the plaintiff had done work and labor on the boat in building it; that the boat was designed and used as a lighter in the river and harbor of Milwaukee, and in carrying out wood to the steam-boats in Milwaukee bay, and was not used in navigation from port to port. The counsel for Bousman & Brown moved the court to instruct the jury as in case of a nonsuit, on the ground that the scow-boat was not a boat or vessel within the meaning of the act, and consequently, was not liable to the proceeding; which instruction the court refused to give, and instructed the jury that the scow-boat was a boat or vessel within the meaning of the act, and that the plaintiff should recover if the jury should find that he had performed the work and labor charged in the declaration.

      The jury returned a verdict in favor of the plaintiff, upon which the court rendered judgment.

      II. FT. Wells, for plaintiff in error :
    The words, “boat” or “vessel,” in the statute are to be governed by the words, “navigate” and “navigation,” which mean, to sail as in ships; passing from port to port for the purpose of carrying persons or property. A scow-boat or ferry-boat is not engaged in navigation, in the proper sense of the word, and is not within the meaning of the statute.
    Where the proceeding is by attachment under the act, it must be against the boat by name ; this shows that the legislature intended to apply it to a larger and different class of vessels, which in all the civilized world have distinctive proper names. This scow-boat has no name, it is not sued by name, but by description. This is a material matter for consideration. A craft that was too insignificant to have a name, was too unimportant to engage the attention of the legislature.
    The statute of the Territory is similar to the statute of New York upon the same subject; the only material difference is, that in that State the word “ships” is used instead of the word ££ boats, ” as in the act of our legislature. 1 Rev. Stat. N. Y. 130. The difference in the words can make no difference in ascertaining the meaning of the law. In that State, the courts have decided in numerous cases, that boats of a much more important class than this scow-boat, were not liable to this mode of proceeding, as not being within the meaning of the law. Walker v. Sloop Rochester, 1 Wend. 557; Johnson v. S. B. Sandusky, 5 id. 510; Farmers' Delight v. Lawrence, id. 564; Burkbeck v. Hoboken Ferry Boat, 17 Johns. 54; 5 Cow. 564.
    There was no appearance for defendant in error.
   Dunn, C. J.

The only question to be decided by this court is, whether the scow in question is or not a boat or vessel, within the meaning of the act of the legislature, to which reference has been made. In considering this question we must examine that part of the act which is applicable, and upon which the proceeding in this case is based. In Eevised Statutes, page 168, section 1, it is provided: “That every boat or vessel used in navigating the waters of this Territory, shall be liable,” etc. Where a law is couched in words of a definite and limited sense, entirely free from ambiguity, and such as cannot be expanded or dilated in their signification, then there is no room for construction or inference from any thing out of the plain import and meaning of the words used. But it does frequently occur that words are used in our statute books which have so very comprehensive a meaning, and may be applied in so many ways, that we are compelled to resort to various aids to enable us to ascertain the meaning intended by the legislature. ‘‘Navigating,” in the act before us, in its most extended meaning, might embrace all and every description of boat, vessel or water craft employed in floating persons or property upon or over our waters. But we must look to the various provisions of this act, and from the whole taken together, giving to each provision an effective and useful construction, in reference to the evil intended to be prevented, and the remedy to be secured, arrive at such rational conclusion as is warranted by the soundest principles of construction. Thereby we will elicit the intent and meaning of the legislature, and this should always govern in expounding laws which are at all doubtful or ambiguous.

What are the claims which may be proceeded for under the provisions of this act ? “1st. For all debts contracted by the master, owner, agent or consignee, on account of supplies furnished for the use of such boat or vessel; on account of work done or services rendered on board of such vessel or boat; or on account of labor done or materials furnished by mechanics, tradesmen or others, in and for building, repairing, fitting out, furnishing or equipping such boat or vessel. 2d. For all sums due for wharf-age or anchorage of such boat or vessel within this Territory. 3d. For all demands or damages accruing from the non-performance or mal-performance of any contract of affreightment, or any contract touching the transportation of persons or property, entered into by the master, owner, agent or consignee of the boat or vessel on which such contract is to be performed. And 4th. For all injuries done to persons or property, by such boat or vessel.” The provisions of a single statute, or one embracing but one subject-matter of legislation, should be, and usually are, consistent, having direct and pertinent relation, the one with the other. In the specification of claims which may be recovered against a boat or vessel, under this act, what reference or application can the words £ £ master, ” £ £ consignee, ” £ ‘ fitting out, ” £ £ furnishing or equipping,” “anchorage,” etc., have to a scow, used as lighter and wood boat to vessels or steamboats in the river and bay of Milwaukee ? Again, it is provided that such claims as have been enumerated may be proceeded for, against the vessel or boat navigating the waters of this Territory, by name. Immemorial usage has given to commercial or navigating boats or vessels a distinctive proper name, and to such this provision applies, and not to scows, ferry boats, yawls, arks, flats, canoes, etc., which have technical descriptive names and not proper names.

The remedy intended to be afforded to meritorious claimants under this act is obvious. To aid commerce and trade, inducements are held out in the law, to builders, repairers, owners of boat stores, merchants and dealers who wish to contract for carrying freights, to engage and contract with owners, masters, agents or consignees of boats or vessels navigating our waters, and engaged in the carrying and transporting and transportation from port to port, of persons and property, through the prompt remedy given them against the boat or vessel so engaged, by name, without compelling them to resort to a suit against the master, owner, agent or consignee, who may not be at the time within the jurisdiction of the courts of the Territory where the credit is given-. Such a provision would not be necessary in relation to scows, etc., which are not sent from abroad to navigate our waters, but are confined to particular ports or wharves, rarely go out of sight of the port, where they have a special and limited use and are always owned. It is scarcely required further to illustrate or draw the line of distinction, as must have been intended by the legislature. We may be aided, however, by decisions of the highest courts in the States on similar statutes. In the case of The Farmers’ Delight v. Lawrence & Sneeden, 5 Wend. 564, the court were of opinion, that the New York acts were not applicable to a boat whose ordinary business was confined to a particular port or place, and out of sight of which it never went, except temporarily and for a special purpose. In the case of the owners of the Sloop Rochester v. Walker & McFarlan, 1 Wend. 577, the court said : “It never could have been the intention of the legislature to embrace within these acts, the innumerable row boats, sail boats, scows, and other small craft which crowd our harbors ; they are not within the reason of the law, nor within its terms as they are ordinarily used. They are not designated as ships or vessels in common parlance. These terms are usually applied to vessels of a larger class.” See Burkbeck v. Hoboken Horse Ferry-Boat, 17 Johns. 54; and Johnson v. S. B. Sandusky, 5 Wend. 510; where the same opinion is recognized.

We are therefore, unanimously of opinion, that the district court erred in refusing the instructions asked, and in giving the instructions which it did, and that the decision be reversed, and the cause remanded to the said district court, for such other proceedings as may be proper and legal.


author: Miller, J.

text:
    Morrison vs. Ream.
    1. Attachment—practice.—Where a writ of attachment is quashed upon motion for the insufficiency of the affidavit, although it has been personally served on the defendant, the suit must be dismissed, with costs, and it cannot proceed as in an ordinary case of a summons.
    2. Affidavit.—An affidavit which only states the aggregate of the plaintiff s claim, and shows that the defendant has counterclaims as a set-off, but does not state that there is any balance due to the plaintiff, or show the amount that is due, is not sufficient to authorize the issuing of a writ of attachment.
    3. Same.—The facts necessary to entitle a party to the writ must be proven to the satisfaction of a judge or supreme court commissioner, by legal evidence of the party or a witness; mere belief is not sufficient; nothing but facts and circumstances will do.
    4. Practice.—Where fraud is charged as the ground for issuing the writ, the judge or commissioner must be satisfied that the fraud exists by proof of facts and circumstances sufficient to raise such strong presumptions of guilt as would, without contradiction or explanation, induce the officer to convict the defendant of the charge if he was on trial before a petit jury; the mere belief of any person is not sufficient.
    5. Same.— If the officer indorses his satisfaction on the affidavit, the court may go behind the indorsement, and examine the affidavit itself; and if the facts and circumstances are not sufficiently proven to authorize the issuing of the writ, it may be quashed upon motion.
    ERROR to the District Court for Dane County.

      Morrison sued out a writ of attachment against Ream, founded upon an affidavit, which is embodied in the opinion of the court. The supreme court commissioner before whom the affidavit was made, indorsed upon it the following certificate of his satisfaction:
    “Agreeably to the requirements of the act approved February 15, 1842, I hereby certify that I am satisfied of the truth of the facts set forth in the above affidavit, and that the plaintiff is entitled to a writ of attachment. Given under my hand, at Madison, this 25th day of March, 1842.”
    The writ of attachment concluded with a summons, and was personally served on the defendant.

      At the return term the defendant moved the court to quash the writ, because of the insufficiency of the affidavit, and of the indorsement of satisfaction.
    The district court sustained the motion, and dismissed the suit.
    Two questions were presented for the consideration of this court: Whether the district court erred in quashing the attachment; and whether, where the attachment is quashed, and there has been personal service of the summons, it is error to dismiss the suit.

      David Brigham and A. P. Fields for plaintiff in error:
    The court below ought not to have quashed the writ upon the motion. The statute affords the defendant a different remedy, by traversing the affidavit; and if the decision shall be in his favor, his property is released, and the suit progresses; the writ is not quashed. The writ is two-fold: to attach and to summon; and, if the attachment is bad, the summons should not be quashed, for by it the defendant is brought into court, as in ordinary cases. The court below ought not to have considered the motion, but left the party to his remedy pointed out in the act. The law has made the officer before whom the proof is made, the judge whether the attachment ought to issue; and if he is satisfied of the facts, and so certifies, the court cannot look beyond his certificate. If he certifies that the proof before him was sufficient to satisfy his mind that the necessary facts existed, the court is bound to believe that they were proven to his satisfaction. But if the court can look into the affidavit, and judge of its sufficiency, it will be found that the officer had enough before him to satisfy him that the facts did exist.

      Julius T. Ciarle and Edward V. Whiton, for defendant in error.
    1. The right of the defendant to traverse the affidavit, and if it appears to be false, to have his property released, does not deprive him of the right to have the writ quashed if it has issued upon an insufficient affidavit. The law makes the affidavit the foundation of the writ itself, and all the proceedings under it. If the affidavit is bad, the writ has improperly issued, and the defendant has been improperly brought into court.
    2. The court is not concluded by the officer’s indorsement of satisfaction. The practice of other courts upon similar statutes is to look behind the certificate, and see whether the officer ought to have been satisfied; to examine the affidavit and test its sufficiency by the statute. 1 Cowen’s Treat. 479, 480; 10 Wend. 420; 10 Johns. 169; Vosburg ». Welsh, 11 id. 175; Smith v. Lewis, 14 Wend. 237.
    3. The affidavit in this case will be found to be defective in every material requisite. As to the indebtedness, it does not show that Ream owed him any thing. It may be true- in every particular, and yet Morrison may be indebted to Ream on a balance of the accounts between them. The facts stated are not sufficient to justify either Morrison or the officer in believing that the charge of fraud was true. The belief of the party is neither a fact nor a circumstance, from which the officer can be satisfied of the existence of a cause for issuing the writ.
   Miller, J.

This cause was commenced by attachment in the district court of Dane county, by the plaintiff in error against the defendant in error, on the following affidavit: “ James Morrison, being duly sworn, doth depose and say that Robert L. Ream is justly indebted to him for goods, wares and merchandise sold and delivered, money lent, paid, laid out and expended for the use of said Ream, in the sum of $282.66, not deducting certain counter demands and set-off claims against the above claim in favor of said defendant, the exact amount of which counter demands this affiant is not knowing: And this affiant swears that his whole claim arises from, and is founded in contract: This affiant further deposes and says, that said Ream is about fraudulently to dispose of his property, so as to hinder or delay him the said James Morrison, in the collection of his said demands against him, as this affiant verily believes ; because this affiant has frequently requested said Beam to settle and pay him, his said demands, or to meet him for the purpose of adjusting the same, and he has refused so to do, assigning no reasonable cause for neglecting to meet this affiant, and settling his said demand; and further, said Beam very recently sold off his goods and effects, or the principal part of them, as-this affiant verily believes, and is about to remove with his family, out of this county, and to leave no property to the knowledge of this affiant, on which an execution can be levied or satisfied.” Which affidavit was indorsed, “satisfied,” by a supreme court commissioner.

On motion on the part of the defendant, the district court dismissed the proceedings. In this there was no error.

The affidavit leaves the amount claimed too vague and uncertain, and the alleged fraud is very far from making such a case as to warrant this writ. It cannot be pretended that this affidavit shows that the defendant was about fraudulently to dispose of his property to defeat or delay his creditor.

The facts necessary to entitle a party to a writ of attachment, must be proven to the satisfaction of the judge or commissioner, and the circumstances upon which the belief of the affiant is founded; and by the act of February 15, 1842, should be embodied in the deposition. Proof, that is legal evidence, from the party or a witness is required. Mere belief is not sufficient. Nothing short of facts and circumstances within the knowledge of the affiant will do. 11 Johns. 175. The supreme court of New York, through a long train of decisions, have settled the practice that the insufficiency of the proof may be taken advantage of by a motion to quash. 1 Cowen’s Treat. 480. Belief, report, information or suspicion are not sufficient. 10 Wend. 420. The officer must be satisfied, and he must be so satisfied from proof of facts and circumstances, not from the belief of any one. Such facts must be proven, as will leave no reasonable doubt on the mind of the officer, that the defendant is about to commit the fraudulent acts mentioned in the statute. For instance, if the party proves positively that the defendant declared his intention to remove or sell his property to avoid the payment of his debts, the officer could draw his own conclusions. 14 Wend. 237; 3 Cow. 206; 14 Johns. 175, 257; 6 Wend. 438; 6 Cow. 234. The requirements of the act should be strictly complied with. 3 Cow. 206. As this is an allegation of fraud, and in its nature a criminal proceeding, the officer should have at least, such strong presumptive proof, as being uncontradicted or unexplained, would induce him to convict the defendant of the charge if he were on trial before the petit jury. 10 Wend. 608.

In this case there is nothing to traverse; the fact set forth in the affidavit not being sufficient to lay the foundation for the writ. When a writ has been served on the defendant, the publication of notice is dispensed with, so is also the entering of the defaults, but the defendant must appear and plead as in other cases. It is contended that when the writ is obtained upon proof, and upon a traverse of the facts it is made to appear that they are not true or well founded, then by the direction of the statute, the suit becomes nothing more than if it had been commenced by summons. But it would lead to oppression if we were to put such a liberal construction upon the act as to save the suit and the costs to the plaintiff in such a case, or a case like the present. The fourth section of the act authorizes a traverse of the facts set forth in the affidavit, and, if their falsity shall be made to appear, the property attached shall be released. The act no where says, that if the attachment is abated or quashed, the suit shall be and remain as in cases of a summons. By the seventh section, in case of personal service of the writ upon the defendant, it shaE not be necessary to call the defendant and have his default entered, but the suit shall proceed as in ordinary cases of summons, and no notice shall be required to be published, as required by the third section of the act to which this is amendatory. Prom the reading of this section it is apparent that the only object of the legislature in providing for the annexation of a summons to the writ of attachment was as herein stated, and cannot be construed to extend to the relief of a party who has obtained a writ of attachment, without having strictly complied with the prerequisites of the statute.

The judgment is therefore affirmed, with costs.


text:
    Gear vs. Bracken.
    1. Award—pleading.—In an action of debt on an arbitration bond founded on an agreement of submission and an award, tbe declaration must aver, and tbe award must sbow, tbat tbe arbitrators conformed, in every material respect, to tbe agreement of submission.
    2. Submission and award.—Where tbe parties agreed to submit tbe matters in dispute between tbem to tbe arbitration and award of tbe committee of awards of tbe Galena Chamber of Commerce, to arbitrate and award according to tbe by-laws, rules and regulations of tbe Chamber of Commerce, tbe award must show tbat tbe arbitrators proceeded according to such by-laws, rules and regulations, or it is void.
    3. Same.—Where matters in dispute are submitted to arbitrators, they have no power to award tbat each party shall execute to tbe other a full release of all demands to tbe date of tbe award.
    4. Same.—Arbitrators have no power to award costs against either party; nor tbat tbe sum awarded shall be paid within a specified time.
    ERROR to the District Court for Iowa County.
    On the 6th day of September, 1839, Gear and Bracken entered into a written agreement, under seal, to submit the matters in difference between them, to the arbitration and award of the committee of awards of the Galena Chamber of Commerce for that njpnth (naming the committee in the agreement), “according to the rules and regulations of the aforesaid chamber of commerce, as provided by the rules, by-laws, and regulations thereof and they executed each to the other a penal bond in the sum of $300 conditioned for the performance of the award when made. The committee took up the matter for arbitration on the 29th of September, 1839, and made an award in writing under the seals of the arbitrators, by which they awarded that Bracken should pay to Gear the sum of $188.42, and $13.50 for costs, which should be paid in Galena in fifteen days with interest, and that upon the payment being made, each party should execute to the other, in writing, a release of all manner of demands whatever to the date of the award. The award did not show that the committee proceeded according to the by-laws, rules and regulations of the Galena Chamber of Commerce.

      Bracken refused to abide by and perform the award, and Gear brought an action of debt on the arbitration bond. The declaration set out the substance of the bond, the agreement to submit and the award, and averred as a breach its non-payment; but there was no averment that the committee of awards proceeded in the arbitration according to the by-laws, rules and regulations of the Galena Chamber of Commerce. Bracken set out the bond, agreement and award, on oyer, and demurred generally to the declaration. The district court sustained the demurrer, and gave judgment for the defendant.

      Moses M. Strong, for plaintiff in error :
    The substance of the bond, the agreement of submission and the award, is set out in the declaration according to their legal effect. This is all that is required. The award is formal and complete, and the presumption is, that the arbitrators conformed to the rules and regulations that were to govern them, until it shall be made to appear to the contrary. If there was any departure of the arbitrators from' the authority conferred upon them by the parties,that would vitiate the award, the defendant sh,ould have pleaded it, and made an issue of fact to be tried by a jury.
    id J. Dunn and T. P. Burnett, for defendant in error.
    The arbitrators had no- authority except what was given them by the agreement of the parties. To make the award good, every material matter must appear affirmatively on its face, and must be averred in the declaration. The award and declaration are bad in this respect.
    The award is also void, because the arbitrators exceeded their authority. They had no power to award costs against Braelcen. They had no power to award that Braelcen should pay the money to Gear in Galena within fifteen days with interest. They had no power to award that each party should execute.to the other a release of all manner of demands to the date of the award. Nothing was submitted to the arbitrators but the matters in dispute. There may have been demands on one side or the other, not at all in dispute, and which were not laid before the arbitrators, yet they say they shall all be released. . Such excess of authority cannot be sustained. Kidd on Awards, 140, 279 ; 1 Bacon’s Abr., title, “Arbitrament and Award,” letter E. 282.
   Dunn, C. J.

This is an action of debt upon an arbitration bond, brought by the plaintiff, Gear, against the defendant, Braelcen, in the district court of Iowa county. At the April term, 1842, the defendant filed his general demurrer to plaintiff’s declaration, after oyer craved, and setting out the agreement to submit to arbitration, bond and award ; which demurrer was sustained by the court and judgment entered for the defendant. To the decision of the district court sustaining the demurrer, the plaintiff excepts, and prosecutes this writ of error to reverse the decision.

From an inspection of the record, it is apparent that the plaintiff’s declaration is justly obnoxious to this objection. A material averment is wanting, that the arbitration was had and the award made according to the rules and regulations established by the by-laws of the Galena Chamber of Commerce. The award is liable to these objections: It does not show upon its face that the arbitration was conducted and the award made agreeably to said rules and regulations. It exceeds the powers given by the submission, in awarding that upon the payment by Bracken to Gear of the sum awarded, each should execute to the other a general release, in writing, of all manner of demands whatever, to the date of the award, in awarding costs against Bracken, and in awarding that payment should be made by Bracken to Gear, of the sum awarded within fifteen days after the date of the award.

There is no principle of pleading better settled than that a plaintiff is required to set out in his declaration every matter material to show his right of action, with sufficient legal certainty. In this case, the committee of awards of the Galena Chamber of Commerce derived their sole right to arbitrate in the premises from the agreement between Gear and Bracken, to submit the matters in dispute to their award and decision. They were bound to conform, in every respect, to the agreement, and could not exceed the powers conferred, or award less or stop short of the matters submitted. Then it is material that the declaration should aver that the committee did arbitrate and award on the matters submitted, according to the rules and regulations of the said chamber of commerce, as prescribed in their bylaws, this being a substantive part of the agreement of submission. The objections to the award are well founded. It must show that the said committee of awards arbitrated and awarded agreeably to the rules and regulations of the said chamber, as prescribed in their by-laws. To aver generally that the arbitration and award was “in proper manner and form,” is not sufficient. The award exceeds the authority and power conferred by the agreement to submit, in awarding that the said Gear and Bracken, upon payment by Bracken, to Gear, of the sum awarded, should each execute to the other a general release of all demands whatever to the date of the award. The matters submitted were the matters in dispute. This part of the award is so comprehensive as to embrace all matters of demand, even those not in dispute. It goes beyond the powers conferred in awarding costs against Bracken, and requiring payment by him of the sum awarded to Gear, in fifteen days from the date of the award. The authorities on these points are full in 1 Chitty’s Pleading, and Kidd on Awards, 140, 279.

We are, therefore, of opinion that the judgment of the district court be affirmed, with costs.

Note.—See subsequent decisions on points involved in this case. Dolph v. Clemens, 4 Wis. 181; Pettibone v Perkins, 6 id. 616; Darling v. Darling, 16 id. 644; Dundon v, Starin, 19 id. 261; Bancroft v. Grover, 23 id. 463.


text:
    Gale, Jr. vs. Cutler.
    1. Bill in equity.— Every bill in equity must contain in itself sufficient matter of fact, to maintain the cause of tlie complainant, so tbat tlie same may be put in issue by the answer, and established by proof.
    2. Pbooes must cobbespond with bill.— The proofs must correspond with the allegations of the parties, and, if they go to matters not within the allegations, the court cannot act judicially upon them as ground for a decree.
    3. Pleading in equity.— Whether a bill contains ground for relief or any equity is a question of merits; the inquiry is, has the complainant averred any matter which, if true, entitles him to the relief prayed for, or any relief; or set it forth in the manner required by the rules of equity ? If the bill contains no equity, or sets it out defectively, it is good cause for a general demurrer.
    4. Eescission OE contbact.— Where a complainant seeks relief against a contract, under the act of Congress of the 31st March, 1830, for the relief of purchasers of the public lands, and for the suppression of fraudulent practices at the public sales of the lands of the United States ; the bill must allege and show, that the contract sought to be rescinded is within the statute, and that the complainant has no legal evidence of the contract in order to entitle him to relief in equity.

      5. Injtototioh.— If a mortgagee is about to foreclose a mortgage by advertising and selling the premises, a court of equity -will not enjoin him or interfere, until the mortgagor first does equity on his part.
    APPEAL from a decree in equity of the District' Court for Milwaukee County.

      Gale filed a bill in equity against Cutler, in the Milwaukee county district court, setting forth:
    That on or about the 10th March, 1838, Cutler was in possession of the N. E. fractional quarter of sec. 3, T. 6, R. 19, in Milwaukee county, then the property of the United States, and in expectation that it would be shortly sold at public sale, agreed in writing with Gale.to convey to him by deed the said land whenever it could be purchased, upon the express understanding and condition that Gale should pay to him $6,000, or secure the same by mortgage on the premises after the conveyance ; which agreement is charged to be in the possession of Cutler.

    Upon the execution of the agreement, Gale paid to Cutler $375 ; and by two bonds, bound himself to pay to Cutler $5,625, in different installments.

      Gale immediately entered into possession of the premises, and expended in improvements thereon, before the public land sales, $20,000.
    At the land sales, Gale was ready and desirous to purchase the land in his own name, but Cutler refused to permit him to do so, and threatened to bid the full value of the land himself.
    On the 16th October, 1839, the day previous to the land sale, Cutler executed to Gale a deed for the premises, and at the same time Gale executed to Cutler his note for $6,000, and a mortgage on the premises to secure its payment according to the aforesaid bonds and the first contract, which deed, note and mortgage were placed in the hands of one Cushman, to be delivered respectively to the parties when Cutler should enter the premises according to the first agreement.
    On the 17th October, 1839, Cutler bought the land at public sale for $1.25 per acre, and on the same day Cutler
      executed to Galea, deed for the land,for the consideration of $6,013.66, reserving for himself one village lot, and Gale gave his note for that sum, payable in one year with interest, and a mortgage on the premises to secure the payment, the papers placed in the hands of Cushman having been canceled.
    The bill charged that Cutler had advertised the land for sale by virtue of a power contained in the mortgage for that purpose, and that he refused to deliver up said mortgage and note to be canceled, as he ought in equity to do.
    The bill prayed for an injunction against Cutler to restrain him from foreclosing the mortgage, and a decree that the mortgage.and note should be canceled and delivered up, and that Cutler should pay to Gale the excess already paid for the land over the sum of $1.25 per acre.
    To this bill Cutler filed a general demurrer, which the district court sustained, and dismissed the bill with costs. Gale appealed from this decision to the supreme court.

      II. If. Wells and J. E. Arnold, for appellant:
    The district court erred in dismissing the bill, because it shows a case strictly within the act of Congress of 31st March, 1830. 4 Story, 2188, § 3. It is said that the court cannot give relief without rescinding the contract in toto, and decreeing the land to Cutler, on the principle that he who asks equity must do equity. But this bill is founded upon a positive act of Congress, and he only' asks for a rescission of the unlawful part of the contract according to the provisions of the act. Under the law the contract is good for $1.25 per acre; it is the excess that is made void. Equity decisions and chancery practice have nothing to do with the case. The bill is not based upon principles of equity, but on a positive act of Congress that has no equity in it. The law stands a positive act of legislation, and secures to the party the relief prayed for, and the court is bound to carry the law into effect.
    The design of the 4th section of the act is to prevent fraudulent combinations to suppress biddings at the public land sales. The fifth section is to make void any contract entered into for that purpose, and not that only, but to give a remedy to any person who may be oppressed by such practices. Piatt v. Oliver, 1 McLean, 301.
    It is contended by the appellee that, if the court grants relief in the case, the whole contract must be rescinded and the parties placed in statu quo. If this were an ordinary case, the principles of equity would so apply; but it is a peculiar case, brought under a particular statute, and the common rules of equity practice do not govern it. If it comes within the law, a part of the contract may be rescinded and the rest remain valid. The statute only makes void all contracts to pay an excess over what the land costs the purchaser at the sale; and if such excess has been paid, gives the party a right to recover it back. If it was designed to rescind the deed, it would have given him f£h.e right to recover the whole sum paid. ¡By this construction of the act the law is made to harmonize, and its beneficial provisions will be carried into effect.
    The deed and mortgage for the land were not a new contract, made after the purchase of the land by Cutler. The bill shows that they were made in pursuance of, and founded upon the previous contract between the parties, made before the land sale.

      A. P. Field and Edward V. Whiton, for appellee.
    The bill does not present a case within the act of Congress. The parties made and modified their contract several times, and the one sought to be avoided was made after the land sale. Besides, there was no contract for Gfale to pay any excess over the sum which Cutler should have to pay for the land; he was to pay a sum certain, without reference to what the land should cost Cutler. The case is not one provided for by the statute. The act relied upon is a rigid law, and the party must bring himself clearly within its provisions before the court will disregard the principles of justice and equity to grant him relief.
    Courts of equity will not relieve a party to a fraudulent contract and give him the benefit of the fraud. The deed to Grale for the land is a part of the same contract; and if any part is void the whole is void; and if relief is granted, the parties must be restored to their original rights.
    ' To authorize a court of equity to interfere under the statute, the complainant must show in Ms bill that he has no legal evidence to establish the contract. The bill before the court does not show this; it only leaves the court to infer it, which the court cannot do. But from the bill itself it appears that there is evidence of the contract. Then it is a case for a court of law, and not of equity jurisdiction. If the complainant has evidence to prove his contract, he must sue at law, and cannot be relieved in equity. 3 Paige, 154.
    If the complainant is to be relieved by rescinding the contract, the court must place the parties in statu quo. Eonbl. Eq. 54; 2 Story’s Eq. 6, 16.
    The bill sets out a contract fairly made, without any allegation of fraud, and asks the court to rescind it only so far as the rescission will be for the benefit of the appellant. This could not be decreed, even if the case was brought within the act of Congress. That act says that every agreement or writing, founded on such a contract, shall be void.
    The act of Congress relied upon is in derogation of the common law. It is a statute of pains and penalties, and must receive a strict construction, and the court will not annul a contract under it, unless it comes within its provisions in every particular. The contract set ■ up in the bill is not within it. There is no agreement that Gale should pay any excess over what the land should cost Gutter. By the first agreement, Gutter was bound to purchase the land at the land sale, and he might have had to pay a greater sum than he was to receive from
      Gale. His getting it at the minim am price was an accidental circumstance.
    But the contract set up in the bill, and sought to be rescinded, was made after Cutler purchased the land, and the act of Congress does not mention any such case. It íb true'that the first contract is stated with some obscurity, and it may be that the latter was, in some degree, founded upon it, but the bill shows that they were essentially different from each other.
   Miller, J.

The bill of complaint of John Gale, Jr., filed in this case, sets forth, that on or about the 10th day of March, 1838, Alonzo It. Cutler, the defendant, was in possession of the south-east fractional quarter of sec. 3, T. 6, of R. 19, in Milwaukee county, the same then being the property of the United States. In the expectation and belief that the same would shortly thereafter be sold by the United States, the said defendant entered into an agreement, in writing, with complainant, to convey to him by warrantee deed the said premises, when the same should be purchased of the United States; upon the condition that complainant should pay to him the sum of $6,000, or secure the payment thereof by a mortgage of the premises, after the same should have been conveyed to complainant by defendant. That on the execution of said agreement, complainant paid to defendant $375, and gave his bond to defendant for the amount of $5,625, and immediately received from said defendant possession of the premises, which he continued to occupy and hold until the day of the sale thereof by the government and ever since, and for himself and others expended $20,000 in improving said premises. At the time of the sale of the said premises by the government, complainant was ready, willing and desirous to purchase the land in his own name, but said defendant absolutely refused to allow him to do so, and insisted on buying it himself, and threatened to bid against complainant at the sale to the full value of the property.

On the 16th day of October, 1839, being the day previous to the sale of said premises by the government at the Milwaukee land office, said defendant executed to complainant a warrantee deed for'the same, which was lodged in the hands of Peter N. Cushman, to be delivered to complainant, after defendant should have obtained a title to said premises, according to the agreement of the 10th of March, 1838, and that at the same time, complainant executed to defendant his promissory note and mortgage of said premises, to secure the payment of the balance of said purchase-money according to the condition of the bond referred to, and agreeably to, and in pursuance of the said agreement; which said note and mortgage were placed in the hands of said Cushman, to be delivered to the said defendant whenever complainant should receive from said Cushman the said deed. The said premises were sold by the government on the 17th day of October, 1839, by public auction at the Milwaukee land office, and were purchased by defendant, who paid to the receiver at said office, therefor, the minimum price of $1.25 per acre therefor, and received from said receiver a duplicate receipt for such payment. On the said 17th day of October, 1839, the defendant executed and delivered to complainant, for the consideration of $6,013 therein expressed, a warrantee deed for said premises, and thereupon the complainant executed and delivered to defendant his promissory note for said consideration, payable in one year thereafter with interest, and to secure the payment thereof, executed and delivered to defendant a mortgage of said premises, and the papers placed in the hands of Cushman were canceled. The defendant had advertised in a newspaper printed in Milwaukee county, the said premises for sale on the 28th day of January, 1841, by public auction, by virtue of the power of sale contained in said last mentioned mortgage, the said sum of money secured thereby not having been paid. The bill prayed an injunction to restrain said sale, and also prayed for a decree, that the overplus paid by complainant over and above the price of the land at the rate of $1.25 per acre, be returned to the complainant, and that said last mentioned note and mortgage be canceled.

The defendant demurred to the bill, and, after argument, the court dismissed the bill, from which decree the complainant appealed.

Every bill must contain in itself sufficient matter of fact to maintain the case of the complainant, so that the same may be put in issue by the answer, and established by proofs. The proofs must be according to the allegations of the parties, and if the proofs go to matters not within the allegations, the court cannot judicially act upon them as the ground for its decision. 9 Pet. 483. Whether a bill in equity contains any grounds for relief, or any equity, is a question of merits. The inquiry is, has the complainant averred any matter which, if true, entitles him to the relief prayed for, or any relief; or set it forth in the manner required by the rules of equity ? If the bill contains no equity or sets it out defectively, it is a good cause for demurrer. The averments in this bill do not disclose any thing of themselves to entitle the complainant to the interposition of a court of chancery. But it is contended that this is a proper case, as set forth, for the action of the court, under the fifth section of an act of Congress, approved March 31, 1830, entitled, “ An act 'for the relief of the purchasers of the public lands and for the suppression of fraudulent practices at the public sales of the lands of the United States.” Whether this is- a contract or not, in violation of this statute, cannot be decided on this bill, for the complainant does not so charge it, nor does he even refer to it. He leaves the court to infer from his bill that it is so, which cannot be done, for a court of chancery does not act upon inferences or uncertainties, but upon allegations and facts. By that statute, the contracts therein referred to are void, and the party aggrieved may sue in any court having jurisdiction ; and if he has no legal evidence of the contract, he may, by bill in equity, compel a discovery thereof; and if in suck case, the complainant stall ask relief, the court in wMck the bill is pending may proceed to final decree between tbe parties to tbe same. Tbe want of legal evidence of tbe contract is not averred in tbis bill. It is beld that equity will not enforce a discovery that is to lead to a forfeiture. 1 Johns. Ch. 368; id. 439; 2 Dessaus. 341; 3 Har. & Johns. 185; 2 Dallas, 92; 12 Serg. & Rawle, 46. Hence, possibly, tbe cause of tbis provision in tbe statute.

Upon general principles of equity, if a party is proceeding at law or in equity to collect bis notes and mortgage through tbe instrumentality of tbe court, then, on tbe proper representation and proof of tbe facts, tbe court will give him relief without bis going further on bis part. 5 Johns. Ch. 136; 3 Bibb, 207; 4 Serg. & Rawle, 151. But it will abundantly appear in 5 Johns. Ch. 49, 136; 1 id. 368, 439; that if a party is proceeding to foreclose a mortgage by advertisement, a court of chancery will not enjoin him, or interfere, until tbe mortgagor first does equity on bis part.

Tbe decree of tbe district court is affirmed, with costs.


author: Dunn, C. J. Milleb, J.

text:
    Parish vs. Gear.
    1. Effect of answer in equity.—An answer in chancery, directly denying the matters charged in the hill, as within the knowledge of the defendant, will prevail against the hill, unless the answer is contradicted hy two witnesses, or hy one witness and corroborating circumstances.
    2. Same.—If the defendant sets up new matter in his answer, not responsive to any of the charges in the hill, it must he supported hy testimony aliunde, or it cannot avail him in his defense.
    3. Same.—-If the defendant discredits his own -answer hy contradictory, unreasonable or irreconcilable statements, or hy statements contradicted hy written instruments on the same point, or hy positive denials of charges of which he could have no personal knowledge, then the testimony of one disinterested witness will sustain the hill against the answer.
    APPEAL from tbe District Court for Iowa County.

      Parish filed a bill in equity against Q-ear in the Iowa district court, alleging:

      That in April, 1886, Gear called on him for a settlement of his account,* and produced his books, which showed an indebtedness on the part of Parish of $3,700, and it was agreed that Parish should secure this sum by a mortgage on sundry tracts of land in Iowa county, payable in four months. After this was agreed upon, Gear stated that there were some other demands for brick and freights that were not taken into the account, which amounted to about $300, making in the whole about $4,000, which would be the full sum of Parish's indebtedness. By agreement of the parties, a bond and mortgage were executed by Parish to secure the sum of $4,200, which Gear admitted would cover all contingencies; payable in four months. When the mortgage became due, William S. Hamilton paid for Parish the amount thereof, and $84 for interest, making in all $4,284, and took Gear's receipt; and that since that period no dealings whatever have been had between the parties.
    After this, in October, 1837, Gear sent to Parish an additional demand of $1,562.38, as a balance of accounts, for which he demanded payment, and on which he brought suit in' the Iowa county district court, still holding said bond and mortgage, and refusing either to deliver them up or release the property, although they had been fully paid and discharged. Parish always denied the justice of the additional claim or balance demanded of him, but having sold a part of the land included in the mortgage to which he was anxious to make a good title, which he could not do while Gear held an outstanding mortgage which he would not release, and being pressed, he finally consented to confess judgment for the amount of the claim in suit, which he did, with the express agreement with Gear's attorney that the bond and mortgage should be given up, and all mistakes in the account corrected, and a stay of execution on the judgment was agreed upon and entered.

      • After the stay had expired, Gear pressed Parish with an execution and was about to sell his property, and still held the bond and mortgage as a security for the judgment and refused to deliver them up.
    The bill charged that the judgment was fraudulently obtained and that it was unjust; that the debt was included in the mortgage which had been paid, and prayed for a perpetual injunction against the judgment, and a decree that the bond and mortgage should be delivered up and canceled.
    The answer of Gear admits the execution of the mortgage, the payment of the money by Hamilton and the receipt, but denies a settlement of accounts or that the mortgage was for the whole debt due him at the time, and states that Parish then owed him about $5,700. He states that the mortgage was given to secure the sum of $4,200, and such other sums as Parish owed him; that the mortgage was not acknowledged or recorded, and that the mortgage and bond were mislaid and could not be found; admits that the money ($4,200) was paid to him by Hamilton, August 1, 1836, but denies that said sum was paid or received as payment of the mortgage, and states that on the contrary, there was still due from Parish over $1,500 ; denies that he refused to deliver up the mortgage ; admits that J. P. Hoge, his attorney, called on Parish for the balance due of $1,562.38, and that Parish confessed judgment for that sum, but denies that the judgment was obtained by any fraud of either Hoge or himself; is informed and believes that Hoge agreed with Parish that the mortgage should be delivered up and canceled, arid he has been ready and willing that it should be done, but told Hoge that he thought the mortgage ought not to be given up until the money was paid; denies that the agreement with Hoge was the consideration that induced Parish to confess the judgment, but says that the only inducement was because the debt was just,

      He states that on or about the 1st of February, 1839, he agreed to execute a deed of release for the mortgaged premises to Parish, and thereupon Parish’s attorney drew a deed which he executed, and about the same time Parish paid him $250; denies all fraud, etc.
    The mortgage mentioned in the bill and answer, and the bond, were produced by Gear on the trial in the district court; the bond was for $5,000, conditioned for the payment of $4,200, which was the amount of the mortgage. The mortgage was to secure that sum alone, and nothing further, and was acknowledged before and certified by a notary public, but' not recorded.
    The only depositions taken in the cause, and read upon the trial, were those of William S. Hamilton and John Turney. The deposition of Hamilton proved: That in the spring of the year 1836, he was present at the closing up of the business of complainant and defendant, which was done at his suggestion, at which time Gear presented to Parish his book, showing Parish’s indebtedness to be about $3,700, but Gear alleged that there were other charges for freight on furnace irons, brick, and perhaps some other small matters, and the parties agreed that the witness should draw a mortgage to secure the debt, Gear stating that the addition of $300 would cover all claims against Parish not mentioned in the books. The mortgage was drawn and executed by Parish to Gear for the sum of $4,200, which was considered by all parties as sufficient to cover all claims from Parish by Gear. On the 1st August, 1836, witness paid to Gear, for Parish, $4,284 and asked Gear for the mortgage, which he declined giving up, stating that the sum paid did not cover the account of Parish. At the time when the mortgage was given, it was supposed that it would cover the whole amount due from Parish to Gear, but it was agreed that the balance that might be found to be due from either party should be adjusted.
    The deposition of Turney proved : That after Gear had sued Parish, he, Parish, consulted the witness upon the expediency of confessing judgment, and expressed great anxiety to get Ms property unincumbered for the purpose of maMng good conveyances : that he, the witness, had a conversation with J. P. Hoge, attorney for Gear, in which said Hoge pledged himself that the mortgage should be given up and canceled, and any error in the accounts between the parties should be corrected. That the sole object of Parish in confessing judgment was to get the mortgage returned, and upon the promises of Hoge he advised Parish to confess judgment.
    The district court decreed a perpetual injunction of the judgment at law, from which decree Gear appealed.

      Moses M. Strong, for appellant:
    Prom the facts in this case, the district court ought not to have gone farther than to cancel the mortgage, and the injunction against the judgment at law ought to have been dissolved. The answer of the defendant denies all the equity of the bill. According to all rules of chancery practice, the answer cannot be defeated unless it is contradicted by two witnesses, or by one witness and strong corroborating circumstances. There is no part of the bill to wMch more than one witness testifies, and there are no corroborating circumstances to make the testimony preponderate over the answer. The statements in the answer as to the settlement of the accounts and execution of the mortgage are not even contradicted by one witness, and the answer on this point must prevail.
    The defendant is called upon by the complainant to answer under oath. The complainant makes him his witness in the cause; and although he may, as in other cases, prove by other witnesses that the facts are different from what the defendant has stated them to be, yet he cannot discredit his testimony, because he is his witness.
    The withholding the mortgage by Gear (and that is sufficiently explained in the answer), could be no sufficient cause for enjoining the judgment. It had never been recorded, and was no lien upon the land, and could not produce any of the difficulties which Parish seemed to fear.
    The complainant has not shown himself entitled to any relief as to the judgment; but if the court can, upon the facts of the case, interfere with the judgment, the most that it can do will be to vacate it, and permit the parties again to litigate their rights in a court of law, and this will be stretching the matter to the utmost verge of authority.

      T. P. Burnett and F. J. Dunn, for appellee:
    Too much consequence seems to be given to the answer of a defendant in chancery. Although, as a general principle, the rule is admitted as it has been stated, yet it is not without exceptions. If the defendant states in his answer any matters that are not in response to the bill, it cannot avail him, but must be supported by testimony aliunde. If the defendant makes contradictory or unreasonable statements, or answers positively in relation to facts not within his own knowledge, and which he could not possibly know with certainty, or if his statements are contradicted by written documents which cannot be doubted, the court will consider these circumstances as detracting from the weight of the answer, and the court may, if the facts warrant it, consider the answer as entirely discredited. This principle is fully established in the following cases: Hart v. Teneyelc, 2 Johns. Ch. 62, and the authorities collected in note (a) at page 90; Mitchell v. Maussin, 3 Monr. 185; Whitington t>. Roberts, 4 id. 173; Young n. HopTcins, 6 id. 18; Paynes v. Coles, 1 Munf. 373. In applying these principles to this case, it will be found that the appellant has in his answer denied positively the circumstances and reasons and the conditions for confessing the judgment, as charged in the bill, when he could not possibly know any thing about it except from information. He states that the mortgage was never acknowledged or recorded, and yet the document itself, which had always been in his possession, shows that it was acknowledged and certified at the time when it was executed. That part of the answer in relation to the execution of the mortgage is so unreasonable in itself, and so contrary to the course of business with all merchants of any discretion or prudence, that it is out of the pale of belief. He does not deny any of the material allegations of the bill upon that subject, except those in relation to the purposes for which the mortgage was given. and the amount of the account, which he says was at that time about $5,700, and that the mortgage was given to secure the sum of $4,200, and such other sums as Parish owed him. The mortgage and bond both show for themselves that $4,200 is all that could be collected upon them, and that they were given for nothing else. The facts in the transaction which cannot be doubted show that at the time, Parish was willing to give a mortgage for the whole sum which he justly owed, and that in this spirit the mortgage was raised from $3,700 to $4,200. What discreet business man is there who, under such circumstances, seeking security for his debts, when he had an opportunity of getting it, would leave out so large an amount as $1,500 and upward? There is none ; and the statement is too unreasonable to obtain belief.
    It is said that the mortgage, not being recorded was no lien on the land, and that the failure or refusal to cancel it was no disadvantage to Parish. Although not recorded, it was acknowledged and certified, and could be placed upon record any minute, as much to the prejudice of Parish as if it had been recorded in the first instance.
    The material allegations of the bill are sufficiently supported by the depositions and documentary evidence ; and an important circumstance in the case which the court will not overlook is, in all this contest Gear has never produced his books or attempted to show, in any way whatever, how or why this enormous excess was not taken into the account when the mortgage was given, nor stated Ms account to show that the whole sum claimed was justly due.
   Dunn, C. J.

This is an appeal from a decree of the district court of Iowa county, sitting as a court of chancery.

A bill of complaint was exhibited in said court by the appellee, Parish, against the appellant, Gear, setting up that the said Gear, by his attorney, had fraudulently obtained on the law side of said court, a confession of judgment against him, by false promises and representations,for the sum of $1,562.58, on an account, or the balance of an account, which had been settled with, and secured to said Gear by a bond and mortgage executed to him by Parish in April, 1836, more than a year before the confession, and that he has had no dealings with Gear since, and he calls on him to answer if he has; which mortgage was discharged and paid off by Parish to Gear about four months after date, being the time the money secured by said mortgage became due, when said Gear, on demand, refused to give up said mortgage as he should have done.

That in October, 1837, to obtain said confession, Joseph P. Hoge, attorney for Gear, promised said Parish, if he would confess judgment for the said $1,562.58, the balance of the account claimed, that Gear would immediately surrender the mortgage to be canceled; and that owing to the peculiar situation of him, the said Parish, at the time, in relation to some of the mortgaged lands, he having sold the same and received a part of the purchase money, and being bound to make conveyance, did consent to confess judgment as aforesaid, not admitting that any balance was due Gear, but influenced solely by the great desire he had to secure that to which in law and equity he was justly entitled, the surrender to him of the mortgage, that he might convey, as he was bound to do, by good and sufficient deeds or conveyances. That said Gear falsely, fraudulently and improperly refused to deliver up said mortgage in pursuance of said promise so made by Ms attorney, and insisted on by Parish in good faith; and the bill concludes with a prayer for an injunction against said judgment at law, and that upon the final hearing, the said court of chancery may decree a perpetual injunction against said judgment at law, or decree to said Gear so much as upon proper proof may be justly due to him, or such .other relief as to equity may appertain.

The defendant Gear in his answer denies that their fall accounts were settled in 1836, and a mortgage given to secure $4,200 only, as the entire amount due Mm at the time, and alleges that it was not only given to secure said $4,200, but such other sum as might be due from Parish to him, and that he has found since said mortgage was given, that said Parish owed Mm $5,700. That the mortgage was given but never acknowledged and recorded; that the $4,200 were paid to him bj Parish’s agent, which he applied to the credit of Parish’s account. He denies that said $4,200 was received in full satisfaction of said mortgage or of the debt due by Parish to Mm, but that there was a balance then due of more than $1,500. He admits that his attorney, Joseph P. Hoge, Esq., called on Parish in October, 1837, for a balance of $1,562.58, and that Parish confessed judgment for that sum at the time set forth; but denies that it was in any wise obtained by fraud, either on his part or on the part of his attorney,. Joseph P. Hoge, Esq., but was the free and voluntary act of Parish. He admits that he is informed and believes that his attorney consented that said mortgage should be surrendered up to be canceled, and avers that he has ever been ready and willing, although he told his said attorney that he did not tMnk the mortgage should be surrendered until the debt was paid, and that he has never since been able to find said mortgage. He denies that the agreement with his said attorney, Hoge, was the consideration that induced Parish to confess judgment, but insists that it was because he believed the debt to be an honest debt, and that a stay of execution for six months was agreed on.

The defendant then set up new matter, not responsive to any of the charges in the bill.

Upon this bill and answer and replication, the mortgage and bond of Parish to pay the $4,200, receipt of payment by Parish, and the depositions of Turney and Hamilton, taken on the part of complainant Parish, this cause came on to be heard, and upon hearing, the court decreed a perpetual injunction against the judgment at law in favor of said Gear against said Parish.

It becomes the duty of this court to review the cause, and affirm or reverse the decree of the district court.

The principle so long recognized in equity proceedings, that fraud in their procurement will taint and destroy the obligatory effect of all parol contracts, deeds and even judgments, is too well established to admit of discussion upon the soundness of the doctrine at this day. The primary object of the complainant’s bill in this cause, is to avoid the effect of the judgment at law against him, by showing fraud in its procurement. A court of equity is the only place where he can be relieved. There is not, apparent on the record of the confession of the judgment at law, any error in law; if there were, confession takes away error. The doors of the courts of law are barred against him, on account of the rigid and inflexible rules which govern in cases at law. The charge of fraud in this case gives jurisdiction to the court of equity, and when parties are properly in this court, it may decree finally on all the matters connected with the subject-matter of the fraud' charged. This, then, presents a case for the relief prayed for, secondly for the surrender and cancellation of the mortgage, and Gear’s right to recover for a balance on an account settled and closed by the bond and mortgage. We must test the truth of the allegations of complainant’s bill by the evidence in the case, and this consists of the defendant’s answer to the matters charged in the bill, as of his own knowledge, the written instruments filed in the cause, and the depositions taken and read below.

The defendant’s direct answer, as of bis own knowledge, is proper evidence, and must be weighed and considered and will prevail, unless contradicted by two witnesses, or one with corroborating circumstances. If a defendant sets up new matter, not in answer to any of the charges in the bill, it must be supported by testimony aliunde, or it cannot avail him in his defense, but may prejudice, from the appearance it bears, of an attempt to equivocate, by leading off from the gist of the matters he should answer. If it appears from the answer of a defendant, that he discredits his answer by contradictory, unreasonable, irreconcilable statements, or by statements contradicted by written instruments on the same point, or by positive denials of charges of which he could have no personal knowledge, then the testimony of one disinterested witness will preponderate over the weight of the testimony contained in his answer, and against the answer. These principles are recognized in Mitchell v. Maussin, 3 Monr. 185; Whitington v. Roberts, 4 id. 173; Young v. Hopkins, 6 id. 18; Paynes v. Cole, 1 Munf. 373; Hart v. Teneyck and others, 1 Johns. Ch. 62, and authorities referred to in note (a) page 90. Under these rules a maj ority of this court have considered the defendant’s answer herein which is all the evidence in his favor in the cause, and have opposed thereto the depositions of Turney and Hamilton, disinterested witnesses, and the mortgage and bond referred to, produced by the defendant at the hearing, and the receipt of payment, and are of opinion that the charges of the complainant in his bill, are sustained by proofs preponderating over the answer of the defendant, which does appear to us to be discredied upon its face in part, and by written instruments in other respects, leaving the complainant’s charges unimpaired, undenied and supported by the testimony. The defendant, as the whole matter was before the court of equity, had ample time and opportunity to introduce proofs to sustain the justice of his account, and show that the items claimed were omitted by mistake or otherwise, at the settlement of 1836, when the bond and mortgage were given to secure the payment of the matters of account then claimed and stated to be due to defendant by complainant; but he slept and introduced no testimony whatever. Therefore, on a review of the whole cause, we are of opinion that the decree of the district court herein be affirmed with costs.

Milleb, J.

(dissenting.) When I cannot agree with my brethren, I feel it incumbent upon me, particularly in cases so important as tMs, to give the reasons for my dissent.

It seems from the evidence that there had been running accounts between these parties for some time, and that Parish became indebted to Gear for various matters, including liabilities to a large amount. In May, 1836, the parties, according the deposition of William S. Hamilton, met to close up their business, and a mortgage was given by Parish to Gear for $4,200, the amount then supposed to be claimed and due. The witness states that at the time the mortgage was given, it was supposed that the amount specified in the mortgage would cover the debt, but that the balance, whatever it might be, whether in Parish or Gear's favor, was to be settled as just and correct. Prom the tenor of the deposition, I understand the mortgage to have been given as a security for whatever might be due. The witness says that Gear's books were there, but from the facts respecting the manner in which the sum was stated, and the understanding respecting whatever balance there might be, it requires no stretch of imagination to perceive that there may have been liabilities on other transactions not recollected at the time. The mortgage was payable in four months, and was paid when due, and Parish received, and produced on the trial his receipt for the $4,200. The mortgage was never recorded but was kept by Gear, who resides in Ulinois. It does not appear that the paper was ever in Wisconsin, until it was produced at the trial by Gear for cancellation; and he avers that he would have given it over to Parish, but that he could not find it. In October, 1837, the claim of Gear against Parish was put into the hands of Mr. Hoge, a lawyer of Galena, for collection. This claim, deducting the credit of the mortgage, and the amount of $4,200 paid thereon, left a balance of upward of $1,500 due to Gear, to which he swears in his bill; for the recovery of which suit was instituted in the district court of Iowa county against Parish, and after consulting counsel he voluntarily confessed judgment thereon for the balance claimed. The defendant rested satisfied with this judgment against him until September following, when he filed his bill for an injunction against it, alleging fraud. He alleges that he gave the judgment for the purpose of procuring from Gear, the mortgage, and that Mr. Hoge promised to have the mortgage surrendered to him. The only proof of this is by the declarations or acknowledgments of Mr. Hoge that he did say so, and this is proved by the counsel of Parish, whom he had consulted before he confessed the judgment. If there was any thing in this it was competent to have Mr. Hoge testify; he was a competent witness, and his declarations were not the best evidence. But there is nothing in it to found a decree upon enjoining this judgment. For before the judgment was confessed, the whole account was presented to Parish, on which he consulted counsel; he then came into court and acknowledged it to be correct by his confession of judgment. Why should Parish confess a judgment for upwards of $1,500, and thereby create a lien on his lands, for the purpose of getting into his possession a mortgage that was never recorded, and merely in the possession of a man in Illinois, and for which he held a full and entire release and discharge % It is too preposterous to admit of serious consideration. And if there is any fraud proved in obtaining this judgment on the part of Gear or Hoge, I cannot see it.

All the pointed allegations in the bill are fully and positively denied.by the defendant Gear, and all the testimony in the case was, the deposition of Hamilton relating to the settlement, and the deposition of Turney, who was the attorney of Parish, and consulted by him before he confessed the judgment, who proves what Parish said to him, and the above acknowledgment of Hoge. This was not evidence under any circumstances, and should not be considered. If such testimony were allowed, a client and his attorney can make as much evidence as may be necessary to gain any cause. In addition to this, what took place between client and counsel respecting a cause, as in this case, should not be received as evidence. Graham’s Practice, 39. Mr. Hoge could have been examined, and consequently his acknowledgment was not, in the first place, the best evidence. But it was as to the surrender of the mortgage only, not as to the legality or honesty of the consideration of the judgment. But there is nothing in this, as at the trial the mortgage was in court to be canceled, and the defendant had a receipt in full for its amount.

Even if Hamilton’s testimony was conclusive, and left no doubt or uncertainty as to the real balance between the parties, there is but the testimony of one witness to the transaction, which is not sufficient, unless accompanied with strong corroborating circumstances. 9 Cranch, 153. The corroborating circumstances relied upon are the bond and mortgage, and these cannot be used as a substitute for another witness, when the balance, by agreement, was to be afterward settled, and for that balance a judgment was confessed upon consultation and professional advice. In the case of The Marine Insurance Company v. Hodgson, 7 Cranch, 322, which was a bill to enjoin a judgment on the ground of a misrepresentation of the age and tonnage of the vessel, whereby the underwriters were induced, to agree to a high valuation, and were thereby defrauded, Marshall, C. J., says, without attempting to draw any precise line to which courts of equity will advance, and which, they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said, that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence of himself or agent, will justify an appeal to a court of chancery.

A defense cannot be set up in equity, which has been fully and fairly tried at law, although it may be the opinion of that court that the defense ought to have been sustained at law. The equity of the applicant must be free from doubt. And the court there decided, that as the party was not prevented from making his defense at law, by any act of the plaintiff, or by any positive rule which disabled him from doing so, a clear case was not made out for the interposition of a court of chancery, and the injunction was denied. Such should have been the decision in this case, for that was stronger than this. Here the mortgage was given upon an understanding that whatever balance should appear on either side should be afterward settled; the settlement, too, whatever it was, was only proven by one witness, the mortgage was paid and receipted, and never recorded; the balance afterward presented and demanded, and sued for, when it was probably filed with the declaration, and after consultation with counsel, a judgment was confessed for it, which remained nearly one year before any application was made to disturb it, and then on a pretense of the non-surrender of the paid mortgage, which was in court at the trial for cancellation. The party could have had all these matters investigated at law, he was not prevented in any way, and then the accounts between the parties could have been fully settled. This, in my opinion, does not present any such case as requires the extraordinary decree of a perpetual injunction.

If the court was fully satisfied that the accounts should be examined, possibly the judgment might have been opened, or an issue directed,» to try and investigate the same. Such a practice has been pursued. 2 Wash. C. C. 433; 14 Serg. & R. 137, Relief might be obtained in a proper case on a writ of error coram nobis. 1 Rawle, 323. This is the most the party could ask, and it is very doubtful whether, under all circumstances, the court should even go thus far, but certainly no farther.

Note.—The appellant, Gear, appealed from the foregoing decision to the supreme court of the United States, whereupon the decree of the supreme and district courts of Wisconsin was reversed, and the bill was ordered to be dismissed. Gear v. Parish, 5 How. 168.


author: Irvin, J.

text:
    Bushee vs. Wright.
    Practice — service — default. In an action against several defendants where a declaration is used as the first process, it must be personally served on all the defendants, before a default can be entered against either of them, and a default taken against one before all are personally served is irregular, and should be set aside on motion, and it is error to deny a motion made to set aside a default thus entered.
    . ERROR to the district court for Grant County.
    The case is stated in the opinion of the court.

      T. P. Burnett and Moses M. Strong, for plaintiff in error.

      F. J. Bunn, for defendant in error.
   Irvin, J.

This case was commenced by declaration in the district court for Grant county, by John Wright, the defendant in error, against Braton Bushee, the plaintiff in error, and Cyrus Harper, and afterward, on a change of venue, it was taken to the county of Iowa. Process seems to have been served on but one of the defendants, and as to the other, returned not found. By “An act concerning proceedings in courts of record,” a declaration may be the first process, and if a copy of it, together with the rule that the defendant plead within twenty days after service of the same, be served personally on said defendant, and he should fail to plead, a default is to be entered against him. In this case, Bushee, the only one of the defendants served with process, did not so plead, and a default was entered against him, to take off which he appeared and made a motion at the next district court, which motion was overruled. The principal question, and certainly the first in the cause is, did the court err in so deciding ? By the sixteenth section of said act it is provided, that “upon due proof of the service of a declaration personally on all the defendants in the cause, their appearance shall be entered by the clerk of the court, and their default may be entered for not pleading, and the same proceedings may be had against them in all respects as if they had appeared.” From the reading of thejlaw, all must be personally served with process. In the State of New York, there was a statute with similar projisions, and the court (7 Wend. 517, and 9 id. 433) held, ‘‘ that in a suit commenced by declaration against several defendants, the plaintiff could not proceed until all the defendants were served with the declaration.” The court is of opinion, that when declaration is the first process, and there be more than one defendant, process must be served personally on all, and that it is error to take a default when only a part of the defendants are served with process. The default taken in this case, being taken without authority of law, should have been set aside, and the district court erred in overruling the motion made to that effect.

It is the opinion of the court that, for the error noticed, the judgment of the district court be reversed with costs, and that the same be so certified, that such other and further proceedings may be had therein as to law may appertain.