author: Dunn, C. J.

text:
    Doty and others vs. Strong.
    1. Practice. Where a defendant is defaulted for want of a plea, and the plaintiff agrees to set aside the default on condition that the defendant will plead to the merits and go to trial, a general demurrer to the declaration is not such a plea as the plaintiff is hound to receive, and if he objects to it, the court should not entertain it.
    2. Deposition; There is no rule of court or of law that limits the time of * returning a deposition into court, or directs by whom it shall be delivered ; and where a deposition was duly taken and certified, and returned into court by the plaintiff on whose behalf it was taken on the second day of the term, several months after it was taken, it ought not on that account to be rejected.
    3. Practice. A deposition or awitness should be objected to at the time of offering to read the deposition or swear the witness; if once admitted, the court cannot take either from the jury by instruction, though the court may instruct the jury to disregard evidence or testimony on the ground of interest developed during the trial.

      4. Exceptions. Exceptions taken in the court below to testimony will not be considered, unless the evidence is made a part of the record by bill of exceptions.
    5. Common carriers. Common carriers are liable upon their general undertaking to the public, for neglecting or refusing to transport the goods of any person who applies to them with such goods as they have undertaken to carry, in condition to be transported, at the place designated for receiving them; and no special contract with the particular person so applying is necessary to charge them.
    6. Same. In an action against common carriers upon their general undertaking, it is necessary to fix upon them their character as such by testimony; and a notice of their general undertaking, published by them in a public newspaper, when connected with the defendants by other evidence, is proper testimony in the cause.
    7. Same. In an action against common carriers for neglecting or refusing to carry goods, it is not necessary to prove any special undertaking of the defendants. Common carriers are liable for refusing to carry when properly requested, as well as for negligently carrying or failing to carry after freights have been delivered to them.
    8. A refusal of the court to instruct the jury upon abstract principles of law, not involved by the record or the facts, is not error, and the court must pass upon the facts so far as to decide what legal principles are applicable to the case.
    9. The fact that no freight boats passed on the line of transportation in which the common carriers were engaged, after the application of the plaintiff, is no defense to the action; if the fact had been that boats could not possibly pass at the time of the request, from causes beyond the control of the defendants, they would then be excused for refusing to carry.
    EEEOE to the District Court for Dane County.
    This was an action of assumpsit, commenced by Strong against the plaintiffs in error, in the Iowa county district court. The declaration contained two counts; the first alleging that the defendants made arrangements to transport merchandise from Creen Bay to the Wisconsin Portage in Durham boats of thirty tons burden, and that they undertook and promised the public to transport all such merchandise and freight as they should be reasonably requested to do, from Green Bay to the Portage, at one dollar and twenty-fine cents per one Tmnd/red pounds; that on the 10th September, 1839, the plaintiff had at Green Bay a large quantity of freight, consisting of merchandise and household furniture ; that the defendants were then and there requested by the agents of the plaintiff to transport the same to the Portage, but the defendants not regarding their said undertaking, refused so to do; that the plaintiff was unable to get his goods transported by water, and was compelled to leave them for a long time at Green Bay, whereby they became greatly damaged; and that the plaintiff was put to great expense in hiring teams to haul the said goods from Green Bay to the Portage, by all of which he sustained great damage, and averred that the defendants became liable to pay said damages, and that in consideration thereof they undertook and promised to do so. The second count was for money paid, laid out and expended. To this declaration the defendant Doty pleaded the general issue, before the other defendants were served with process. Upon this plea a trial was had in the Iowa county district court, and a verdict and judgment rendered in favor of the plaintiff. Doty sued out a writ of error, and at the August term, 1840, of this court, ante, the judgment was reversed, and the cause remanded for further proceedings.
    After this, the plaintiff sued out an alias process and had it served upon Jones and Irwin, and also obtained leave to amend his declaration, upon which he filed a new declaration, setting up a special undertaking of the defendants to carry the goods, etc., and averring special damages. To this declaration, the defendant Doty demurred generally, and the court sustained the demurrer, to which the plaintiff excepted. After these proceedings the cause was removed, by change of venue, to Dane county, the plaintiff’s declaration having been amended.
    At the November term, 1841, of the Dane county district court, the defendants Jones and Irwin, who had been served with process, were in default for want of a plea, when the plaintiff agreed to waive the default on condition that they would plead to the merits and go to trial; whereupon they offered to file a general demurrer to the declaration, which was objected to by the plaintiff as not within the stipulation ; and on a subsequent day of the term, the court decided that the demurrer was not within the terms of the agreement allowing them to plead, and that they must plead to the merits or be defaulted, upon which they pleaded the general issue. The cause was tried at that term of the court, and in the progress of the trial the defendants excepted to the following decisions of the court:
    1. In permitting the plaintiff to read in evidence an advertisement of the Pox River Navigation Company, published in a newspaper purporting to be printed at Green Bay, and signed by the defendants, in which they offered to transport merchandise as charged in the plaintiff’s declaration, and a file of said newspaper from July to October, 1838, containing said advertisement.

      2. To the admission of a certain written contract between the plaintiff and Calvin Prink.
    3. To the admission of a certain written contract between the plaintiff and William Longdo.

      4. To the admission of the deposition of one Ormsbee. And also to the decisions of the court upon the several instructions to the jury asked for by the defendant, which are embodied in the opinion of the court.
    The contracts with Prink and Longdo were not made a part of the bill of exceptions.
    The commission to take the deposition of Ormsbee was issued upon interrogatories and cross interrogatories on the 25th of May, 1841, to Rutland, Yermont, according to the rules of court; was executed on the 21th of July, 1841, and was produced in court and filed by the plaintiff on the 9th of November, 1841, the second day of the term.

      Ormsbee testified: That be was present at a conversation between tbe plaintiff Strong and Jones one of tbe defendants, on tbe 31st of May, 1839, in which Jones said tbat Doty, Irwin and Mmself, were all jointly interested and engaged in transporting property, etc., np Pox river to Port Winnebago ; tbat each depended so much upon tbe others, tbat little or nothing was accomplished; tbat as soon as Strong's goods arrived at Green Bay, be assured Prink and those with him, tbat they and tbe goods should be immediately sent up; tbat Prink and Longdo were constantly urging to be sent off with tbe goods, but they were put off and delayed until Strong came for them in tbe winter; tbat soon after tbe goods of Strong arrived at Green Bay, be, Jones, earnestly and particularly urged Doty and Irwin to have them sent up immediately; tbat be, Jones, went to Detroit, and when be came back be was surprised to find tbat tbe goods bad not been sent, and learned tbat tbe reason was, tbat Doty and Irwin bad detained tbe boats in hopes of getting a contract to transport government troops to Port Winnebago, and then it was too late ; tbat be, Jones, bad found much fault with Doty and Irwin for not sending up Strong's goods, and they would all be obliged to pay Strong bis damages ; tbat Strong then said to Jones, that bis original intention bad been to send bis goods by tbe Ohio canal to Portsmouth, and thence to Galena, but at Buffalo be saw a Green Bay newspaper containing an advertisement signed by Doty, Jones and Irwin, agreeing to transport goods from Green Bay to tbe Portage for $1.25 per 100 pounds, and in consequence of tbat be sent bis goods to Green Bay ; tbat Jones, upon being asked, said tbat they bad issued such an advertisement, and tbat they intended to live up to it; tbat it had made no difference tbat Strong' s goods were stored in Bruce’s warehouse, their warehouse was not finished, and Bruce’s was tbe most convenient place where they could be stored; tbat tbe arrangement made by Strong through Merrill at Port Winnebago to pay tbe freight, etc., was entirely satisfactory, and tbat the goods were not delayed a minute on that account, and that there was no other reason for the delay than as above stated; that Strong then presented to Jones a bill of damages amounting to $1,700; when Jones said he had no doubt of Strong’s heavy damages ; that Doty and Irwin ought to pay it, and if he had been at home instead of Detroit, he would have paid the bill if the goods had not gone; he had no reason to doubt the correctness of the bffl.
    The jury returned a verdict in favor of the plaintiff for $1,163.88 damages, upon which the district court rendered judgment. To reverse this judgment the defendants below brought the cause into this court by writ of error, and assigned various errors in the record of the proceedings, which are noticed in the opinion of the court.

      M. M. Jaclcson and A. L. Collins, for plaintiffs in error,
    argued 1that a common carrier is not bound to carry goods, unless a reasonable compensation is paid or tendered to him. If the goods are not such as he is accustomed to carry, or not in good condition, or if he has no convenience to carry them, or if they are brought at an unreasonable time, he is not bound to receive them. The boxes of goods and furniture of the plaintiff below were of so large a size that they could not be carried in Durham boats ; they arrived at Grreen Bay too late in the season to be sent up Fox river, and the defendants made no more trips that season. A carrier is not bound to receive goods, except when he is about to set out on his journey.
    2The advertisement read from a public newspaper on the trial below, for the purpose of proving that the defendants were common carriers, ought not to have been admitted. To make it evidence, it was necessary to prove that it was published by the direction or sanction of the defendants, in order to identify them with the publication. This was not done. Ormsbee’s deposition only proves the acknowledgments of Jones, and that cannot bind the other defendants until a partnership or joint liability is proven.

      3The contracts between the plaintiff and Frink, and Longdo, had no legal connection with the case. It matters not whether the contracts are set ont in the bill of exceptions or not. An inspection of the declaration will show that no possible contract of the kind conld have any legitimate application to it.
    4The deposition of Ormsbee was taken more than three months before it was filed, during the greater part of which time the plaintiff had it in his custody and withheld it from the inspection of the defendants, and brought it himself, into the court during the term, and on the eve of the trial. Such a practice is calculated to work great injustice to the opposite party by taking him by surprise, at so late a period that he cannot rebut the testimony, and the court ought to have rejected it and discountenanced the practice.
    5The declaration alleges no undertaking to the plaintiff to carry, but a general undertaking to the public only. The plaintiff is not entitled to recover upon such a declaration, and the objection may be taken on error.
    6The court below ought to have given the second instruction asked for by the defendants. It sets forth an established principle of law as to the commencement of the liability of common carriers. A delivery and acceptance of the goods to be carried begins the responsibility. Questions may arise as to whether a delivery was made or not, but in all cases the question is one of fact for the jury, and they must find a delivery actual or constructive. Story on Bailm. 340 ; 2 Kent, 468.
    7The fifth instruction asked for was proper to be given as applicable to the case. For every undertaking that is binding in law, there must be a consideration moving from, the other party. To hold the defendants responsible on their general liability as common carriers, and that is the only liability declared upon, the plaintiff ought to show that he had paid or tendered the price of carrying the goods. 2 Kent, 465.
    8In the refusal of the court to give the seventh and eighth, instructions, the court assumed the facts and did not leave them to the jury to determine ; this the court has no right to do. If the principles of law are correct, they ought to have been given in charge, and the jury should have determined the facts.
    9The court refused to give the ninth instruction, on the ground that the undertaking of the defendants in the public advertisement, implied a contract. If the plaintiff relied upon the general liability and implied contract of the defendants, then all evidence of a special contract or undertaking ought to have been rejected.
    The declaration is founded upon a general liability only, and no evidence of a special undertaking is applicable to the issue, and the court should have given the instruction and rejected the evidence. Cowen’s Treat. 96, 97'; 2 Starkie, 198; OlarJc v. Smith, 14 Johns. 326.
    id J. Dunn and Edward V. Whiton, for defendant in error.
    1The declaration is on a special undertaking. It is not an implied promise, and the court will infer that it was supported by proof when the record does not show the contrary. The deposition of Ormsbee proves the admission of the defendants below, that the advertisement was published by their authority, that they made the contract for transportation, and that the goods were received by them.
    2The instructions asked for by the defendant were properly refused, because they had no connection with the case. However correct the principles of law may be in the abstract, it was no error in the court to refuse to give them to the jury, when there were no facts in the case to which they could be applied.
    3The deposition of Ormsbee was taken according to the rules of court in every particular. The defendants say that they were surprised by the deposition, and object to the time of its filing because they had no time to rebut it. If Ormsbee had been produced on the stand and examined in court, which might have been the case, they ■would have had still less time to rebut his evidence ; and so in the case of every witness.
    4There is nothing in the record to enable this court to judge whether the written contracts between Strong and Frink, and Strong and Longdo, were properly admitted or not. The contracts themselves are not before the court, and in the absence of any thing to show the contrary, the law presumes that the district court decided right in admitting them.
    5The defendants were sued as common carriers, and that character is fixed upon them by the testimony. Now it cannot be denied, that where a person holds himself out to the world as a common carrier, or agrees with a person to transport goods from one place to another, and the goods are deposited for him at the wharf or in a warehouse where he is in the habit of receiving his ‘heights, or agrees to receive them, and he then neglects or refuses to carry them, that he is answerable in damages. The testimony shows that the defendants were satisfied with the arrangements to pay the freight; that the goods were deposited in Bruce’s warehouse at their request, or by their agreement, and that the transportation was delayed on no other account than the expectation of getting a government contract.
   Dunn, C. J.

Error is prosecuted in this case to reverse the decisions and opinions of the district court of Dane county, on the various grounds presented in the assignment of errors. The declaration of Strong, plaintiff in the court below, alleges: “That the defendants (who are plaintiffs in error) made arrangements on or about the 26th of May, 1838, at Grreen Bay, in the county of Brown, and Territory of Wisconsin, to transport merchandise from said Grreen Bay to a place called the Wisconsin Portage, at or near Fort Winnebago, in the county of Portage, in said Territory, in Durham boats of thirty tons burden, and that they then and there undertook, assumed and promised to the public, to transport, for the sum of one dollar and twenty-five cents per hundred pounds, from Green Bay aforesaid, to the Wisconsin Portage aforesaid, all such merchandise or freight as they should thereafter reasonably be requested to do.” And the said plaintiff further averred in his said declaration, “that afterward, on the 10th day of September, 1839, at Green Bay aforesaid, he then and there had a large quantity of freight, consisting of household furniture and merchandise, of the weight of twelve thousand pounds, and that the defendants were then and there requested by the agents of the plaintiff to transport the same from Green Bay aforesaid to the Wisconsin Portage aforesaid, but the said defendants, not regarding their said undertaking, refused so to do, to the damage of the plaintiff,” etc., etc., alleging special damage. The general issue was pleaded, and issue being joined, the parties proceeded to trial. During the progress of the trial many exceptions were taken to the opinions of the court, which will be considered in their order.

The last error assigned to an opinion of the court, on a question which had arisen before issue joined, for the sake of order, will be first considered. It is insisted by the plaintiffs in error, that “the court erred in refusing to entertain the demurrer filed by the said Jones and Irwin to the declaration of the said plaintiff below at the November term of the court.” To understand this supposed error, it is necessary to consult the record embracing this part of the proceedings in the case. Prom the record it appears, that at the said November term, two of the defendants below, Jones and Irwin, were in an attitude to be defaulted for want of a plea under a rule; that the plaintiff below waived his right to a default, upon the terms that the said defendants should plead to the merits and proceed to trial. The defendants, under this waiver, filed their general demurrer, to which the plaintiff Strong objected, as against the terms of the waiver. The court continued the objection under advisement to a subsequent day of the term, and thereafter, on the seventh day of the term, the court decided “that the said plaintiff had a right to insist on the terms of his waiver,” whereupon, on leave, said plaintiff withdrew his joinder in demurrer, and the said defendants Jones and Irwin pleaded the general issue, the plaintiff joined, and the trial progressed.

We are of opinion that the terms of waiver are suchas the plaintiff might properly have imposed ; that the demurrer was not a plea to the merits, therefore not a compliance with the terms ; that the plaintiff interposed his objection timely, and that the court decided correctly in enforcing the terms. The joinder in demurrer, after the objection raised, without withdrawing it, does not vary the case, or imply a consent of the plaintiff to join in demurrer and waive his term, because his objection was pending for the opinion of the court, which if sustained, dispensed at once with the demurrer, and the joinder was only contingent, to be entertained if the objections were overruled.

The leave to withdraw the joinder was not necessary, as by the decision of the court, the demurrer was rejected as against the terms of the waiver.

In addition to the supposed error disposed of, the following are assigned:

1. The court erred in admitting the newspaper containing the advertisement of the Fox River Navigation Company, and also the file of newspapers from July to October, 1838, in evidence.

2. The court erred in admitting in evidence the contract entered into between the plaintiff and Calvin Prink.

3. The court erred in admitting in evidence the contract entered into between the plaintiff and William Longdo.

4. The court erred in admitting in evidence the deposition of Thomas J. Ormsbee.

5. The court erred in refusing to instruct on the first point submitted by defendants.

6. The court erred in refusing to instruct on the second point submitted by defendants.

7. The court erred in refusing to instruct on the third point submitted by defendants.

8. The court erred in refusing to instruct on the fourth point submitted by defendants.

9. The court erred in refusing to instruct on the fifth point submitted by defendants.

10. The court erred in refusing to instruct on the sixth point submitted by defendants.

11. The court erred in refusing to instruct on the seventh point submitted by defendants.

12. The court erred in refusing to instruct on the eighth point submitted by defendants.

13. The court erred in refusing to instruct on the ninth point submitted by defendants.

The defendants below were sued as common carriers ; “persons who undertake for hire or reward to transport the goods of such as choose to employ them from place to place.” To make them liable as such, it is certainly incumbent on the plaintiff below to prove that they were, at the time of the act complained of, common carriers within the definition laid down, by such acts on their part, as indisputably fixed that vocation upon them. An advertisement in the public newspapers, notifying the public that they had undertaken the business of common carriers, is legal and proper evidence. It is necessary that the plaintiff should by evidence,, have identified the defendants with the public notice. The introduction of such evidence, unsupported at the time by proofs showing that the advertisement was the act of the defendants, might appear to be erroneous, but if in the progress of the trial, proofs are adduced supplying this deficiency, then the decision of the court in permitting the advertisement to be read in evidence, is relieved from every appearance of objection. The deposition of Ormsbee, made a part of the record in this case by the exception to the opinion of the court, permitting it to be read as evidence on the trial (which exception was not well taken, as we shall show), proves conclusively that the advertisement was the act of the defendants. The first error assigned is not well taken.

The second and third errors are similar, and may be disposed of together. The plaintiffs in error assume, that the district court erred in permitting two contracts, one between Strong, plaintiff below, and Calvin Frink, and the other between the said Strong and William Longdo, to be read as evidence on the trial. It is sufficient for the court to say, that the contracts referred to are not made a part of the record in this case by the bill of exceptions, and that the record presents nothing that will enable us to decide the points raised. Therefore, they are dismissed, without further comment.

The fourth error assigned, against the admission of the deposition of Ormsbee, is not apparent to the court. The rules, interrogatories and cross interrogatories, choice of commissioners by the parties, commission, taking of the deposition, certifying, sealing up and directing the same, are all unexceptionable. There were two points raised in the arguments of the error assigned: 1. The deposition was returned some two months after it was taken. 2. It was delivered by the plaintiff in the action into the district court, on the second day of the term at which the cause was tried, only four days before the trial. There is no rule of court or of law which limits the time of returning a deposition into court, or directs by whom or how it shall be conveyed. If a deposition is properly taken, certified, sealed up, directed, and the matter thereof is legal and proper evidence in the case, and it is ready in court before the trial, there certainly can exist no reason in law why it should not be read as evidence. We consider these to be the requisites of a legal and admissible deposition of a witness residing out of the Territory, under the law and rules of court. 1. The entry of a proper rule for a commission. 2. Due notice thereof to the opposite party, his agent or attorney. 3. The issuing of a commission under the rule in due form by the clerk, under seal, directed to the commissioner named, accompanied by a certified copy of all the interrogatories on file, with the names of the witnesses to be examined, and a copy of the first, fifth and sixth rules on the subject of depositions. 4. A compliance of the commissioners with the said fifth and sixth rules in taking the deposition and certifying the same. 5. A compliance with the said first rule in sealing up and directing the same ; and 6. That the matter thereof be legal and pertinent evidence in the case. Ormsbee5 s deposition, by applying this test, is free from exception, and the district court did not err in permitting it to be read as evidence on the trial.

The fifth error assigned is that the court erred in refusing to instruct the jury on the first point submitted by defendants.” The first instruction asked is: “If the jury believe that there is no proof of a contract between the plaintiff and defendants to carry the goods in question, other than the general advertisement to the public, then the plaintiff cannot recover.” In deciding this' question, we must consider the nature and extent of the undertaking of the defendants as applicable to the instruction asked. The definition of “ common carriers ” given, affords an easy solution of the question. “ A common carrier is one who undertakes for hire or reward, to transport the goods of such as choose to employ him, from place to place.” This is a general undertaking, and embraces every one in the community, and to make it particular, as an undertaking with a single individual, it is only necessary that he should apply with such goods as the common carrier has undertaken to transport, in condition to be transported, at the place designated, to have the goods carried on the terms proposed in the undertaking ; then the contract becomes identical with the person then applying, and it requires no other special contract between the parties, to subject the common carrier to all legal liabilities as such, to the person applying. Allen v. Sewell, 1 Wend. 237; Bank of Orange v. Brown, 3 Wend. 158. The district court decided correctly in refusing the instruction.

The sixth error assigned is, “that the court erred in refusing to instruct on the second point submitted by defendants.” The second instruction asked is: “If the jury believe that there is no proof of delivery of the goods in question, by the plaintiff or his agent to the defendants, and an acceptance by the defendants of said goods, then the plaintiff cannot recover.”

This instruction seems to have contemplated a different cause of action than that set up in the plaintiff ’ s declaration. This would have been a proper instruction in substance, if the plaintiff had sought to recover for negligence in carrying, or a failure to complete the carrying and delivery. This action is brought to recover damages for an absolute refusal to receive and carry; for a violation in limine of the undertaking of the defendants. It cannot be questioned that common carriers are liable for refusing to carry, when properly requested, as well as for negligently carrying or failing to carry after the freights have been delivered to them. Jackson v. Rodgers, 2 Show. 328. Chief Justice Jeffries held, “that the action was maintainable as wed against an innkeeper for refusing a guest, or a smith on the road who refuses to shoe a horse, being tendered satisfaction. The same opinion is held by Chief Justice Holt in Boson v. Sandford, 1 Show. 104. These opinions are sustained by various decisions referred to in the cases cited. To insist that there should be proof of delivery and acceptance, when the gist of the action is an absolute refusal to receive and carry, appears to the court to be entirely against law and reason. The district court was correct in refusing the instruction.

The seventh error assigned is, “ that the court erred in refusing to instruct on the third point submitted by defendants.” The third instruction asked is: “If the jury believe from the evidence, the goods in question remained in possession of the agent of the plaintiff, and never were in the possession of the defendants as carriers, then the plaintiff cannot recover.” It is so apparent, that it seems scarcely necessary for-the court to remark, that the reasoning and authority which disposes of the second instruction apply equally to this. If our opinion is sound on that, we must concur with the district court in the propriety of refusing this also.

The eighth error assigned is, ‘ ‘ that the court erred in refusing to instruct on the fourth point submitted by defendants.” The fourth instruction asked is : “ If the jury believe from the evidence, the goods in question were deposited by the plaintiff or his agent in the warehouse of Bruce, a third person, and that Bruce had a lien for charges on said goods, the defendants were, not bound to carry them in the absence of a special contract, unless the plaintiff shows, that said lien for charges was previously discharged, and he cannot recover.” This instruction also grows out of a misapprehension of the plaintiff’s true cause of action. Under a different state of case averred by the plaintiff and raised in the testimony, this instruction might have been proper. Considering the true cause of action and the facts presented on the record, it would not have been a proper instruction. If no other reason existed, the one assigned by the court was sufficient: “Because the supposition of charges is against the evidence in the case.” The rule is, that a refusal to instruct on abstract principles of law, not presented by the record, nor by the facts in the case, is not error, however correct the principle, when applied to a proper case. Without claiming that the court should respond to the facts iiq a case, it must necessarily respondió far as to decide whether -a principle of law is raised by the facts, that the case may not be embarrassed by matters entirely foreign. If the charge had been given, would the result have been different, presuming that no other than legal evidence was produced at the trial? Ormsbee’s deposition is the only evidence presented in the record for the inspection of this court; from this evidence, with the instruction, no other finding of the jury could have resulted. The district court properly refused the instruction.

The ninth error assigned is, “that the court refused to instruct on the fifth point submitted by defendants.” The fifth instruction asked is : “If the jury believe from the evidence, the defendants assumed to carry the goods in question for a certain price, and the plaintiff has not shown a compliance with the terms of such assumed contract, by tendering or paying said price, then the plaintiff cannot recover.” The court refused to give the instruction, and referred to the evidence in the deposition. This instruction is like the one just disposed of, upon which we have expressed an opinion.

The tenth error assigned is, “that the court erred in refusing to instruct on the sixth point submitted by the defendants.” The sixth instruction asked for is: “If the jury believe from the evidence, that the defendants did not assume to carry the goods in question, but merely neglected and refused to carry the said goods, the defendants are not liable under a general advertisement to carry for the public, and the plaintiff cannot recover.” We consider this ground of error disposed of, by our opinion on the first instruction asked for by the defendants below, and will add nothing further to what is there laid down.

The eleventh error assigned is, “that the court erred in refusing to instruct on the seventh point submitted by the defendants. ” The seventh instruction asked is: “If the jury believe from the evidence, that no freight boats passed up Pox river, after the plaintiff’s goods were deposited in Bruce’s warehouse and not in the possession of the defendants, then the plaintiff cannot recover.” Admit that the facts were as assumed in the instruction, they would not amount to a defense, even in a case to which they might apply. That boats could not possibly pass up Fox river at the time of the request made by the plaintiff, for causes entirely out of the control of the defendants, would excuse them for refusing to carry. The fact that they did not pass up is a very different thing, and more allied to the plaintiff s cause of action than to the defense. The court properly refused the instruction.

The twelfth error assigned is, “that the court erred in refusing to instruct on the eighth point submitted by defendants.” The eighth instruction asked is: “If the jury believe from the evidence, that there was no special contract to carry the goods in question, and no delivery of the same to 'the defendants by the plaintiff, and that there was only a qualified promise to carry the same if the defendants were able to do so, then the plaintiff cannot recover on an alleged breach of contract made to the public.” There are three distinct matters embraced in this instruction: No special contract; no delivery; and a qualified promise to carry, The two former have been disposed of against the error assigned, and the latter branch of the instruction was given as asked, with the remark by the court, that the facts show a different state of case. The language of the court in the instruction, “if there were only a qualified promise to convey the goods, the plaintiff cannot recover on a general promise,” fixes the character of the instruction, and shows conclusively, that the court intended the jury should respond to the facts, to which the principle of law was applicable. And the intimation in this instance does not infringe the rule, in its most rigorous sense, that the court should respond to the law, and the jury to the facts.

The thirteenth error assigned is, “that the court erred in refusing to instruct on the ninth point submitted by defendants.” The ninth instruction asked is: “The court is requested to instruct the jury, to throw out of consideration all evidence proving a special contract of the defendants with the plaintiff, in relation to the carriage of the goods in question, as the plaintiff has not alleged in his declaration any such contract with him.” The court refused so to instruct, remarking: “as the law, on the undertaking of the defendants as set forth in their advertisement, implies a contract; and as the court supposes from remarks made on the deposition of Ormsbee, objecting to the samé, for the reason that it was evidence of a special contract, that the instruction asked for is to rebut or reject that evidence.” The rule is, that a deposition or witness should be objected to at the time of offering to read the deposition or swear the witness. If once admitted, the court cannot take either from the jury by instruction. The court may instruct the jury to disregard evidence or testimony, on the ground of interest developed on the trial. The court properly refused the instruction.

It is the opinion of this court that the judgment of the district court of Dane county be affirmed, with costs.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    Fowler vs. Colton.
    1. Notice oe special matter. A notice of special matter to be given in evidence, filed with, tlie plea of general issue, must contain all tbe substantial matter of a special plea. In actions upon contracts it is sufcient if it contains such, a statement of special matter as will prevent tbe plaintiff from being taken by surprise at tbe trial; but in actions of slander, tbe notice of special matter in justification must be as precise and certain as a special plea.
    2 Slander—pleading. As there is no form prescribed for a notice, its sufficiency must depend, in some degree, upon tbe peculiar circumstances of eacb case.
    3. Notice. As a notice is not technically a part of tbe record, it is not proper to dispose, of it by demurrer, and tbe correct practice is to exclude tbe evidence offered, if tbe notice is insufficient.
    4. Amendment. Tbe, refusal of the court to allow a notice to be amended at tbe trial is not error; tbe statute of amendments is not obligatory on tbe courts, but gives them tbe discretion to allow or disallow amendments, and tbe allowance or disallowance of amendments, resting in tbe discretion of tbe court, is not tbe subject of error.
    5. Practice. Tbe expression of an opinion by tbe court as to tbe facts in a case, tbe weight of testimony, or tbe character of a witness, is not error, if tbe question upon which it is expressed is left for tbe determination of tbe jury.

      6. Jury—verdict. Wiere each of the jurors sets down the amount of damages which he is willing to allow the plaintiff, and the jury-divide the aggregate of the sums hy 12, and agree upon the quotient as the amount of their verdict, it is not such misconduct as would entitle the defendant to a new trial, unless it is shown that the jury acted corruptly, or that they previously hound, themselves to adhere to the result.
    7. Depositions. Where the rules of the district court require all depositions intended to he read on the consideration of all motions to he taken on notice to the adverse party, the court may reject ex parte affidavits offered in support of a motion for a new trial.
    8. Testimony on motions. The court is not hound to take the testimony of witnesses on the stand in support of a motion, nor is it the usual practice to do so.
    ERROR to tlie District Court for JElacine County.
    This was an action for slander commenced by Colton against Fowler in the Racine county district court. The declaration contained three counts: The first count alleged that the defendant had charged the plaintiff with larceny in stealing a bee-hive and honey belonging to one Lucas, and a bag of flour belonging to the defendant; the second count was for charging the plaintiff with larceny in stealing a hive of bees and honey of one Daniel Lucas ; and the third count was for words charging the plaintiff with larceny in stealing grain and flour from See’s mill, and stealing Lucas’ bee-hive. The slanderous words were variously laid in the declaration, to which the defendant pleaded the general issue, and gave notice of special matter in justification, which is stated in the opinion of the court.
    Upon the trial, one Isaac Goodpasture was sworn and examined as a witness for the plaintiff, to prove the speaking of the slanderous words; he was afterward called by the defendant, and testified that the plaintiff’s character was bad.
    After the plaintiff had closed his testimony, the de fendant offered to justify by proving the truth of the words spoken, which was objected to by the plaintiff on the ground of the insufficiency of the notice. The court sustained the objection, and decided that the notice was not sufficient. The defendant then asked leave to amend the notice, which was refused.
    Among the instructions given by the court to the jury was the following: “In considering character, you will also consider the character of the witnesses, for and against, and give their testimony such weight as they may deserve. Such a man as Goodpasture, when called upon this subject, will not be entitled to much weight.” To which instruction the defendant excepted.
    The jury returned a verdict in favor of the plaintiff for $375 damages; upon which the defendant moved for a new trial, on the grounds, among other things, that the court erred in instructing the jury that the evidence of Goodpasture was not entitled to much weight; that the court erred in rejecting the evidence offered by the defendant in justification, and that the court erred in refusing to allow the defendant to amend his notice of special matter; and also “that the jury erred in first marking damages for the plaintiff at sums varying from $1.00 to $1,000, and then dividing the difference, returning a verdict from computation, rather than from law, evidence, or their own judgments.”
    To sustain the last ground, the defendant offered to prove by the affidavit of H. N. Wells, that the jury, in ascertaining the amount of damages in the case, marked the sums which they would allow, and then added these sums together, and divided the whole by twelve and took the quotient as their verdict,and that these sums so marked, varied from $50 to $1,000; and if the affidavit should be held inadmissible, the defendant offered to prove the facts by a witness on the stand; The court refused to receive the affidavit because it had been taken without notice to the adverse party, and also refused to hear witnesses on the stand in support of the motion.
    The motion was overruled and judgment rendered upon the verdict.

      H. W. Wells, for plaintiff in error,
    contended, 1. That the notice was sufficient, and that it need not be as full and certain as a special plea or indictment. It is sufficient if it fully informs the plaintiff of the defense intended to be set up at the trial. 8 Johns. 475 ; 11 id. 38; 20 id. 775. 2. The- court erred in refusing to permit the notice to be amended, and if the refusal was an abuse of discretion, then the judgment ought to be reversed. 3. The court erred in instructing the jury that the testimony of Goodpasture was entitled to very little weight. 4. The court erred in rejecting the affidavit offered in support of the motion for a new trial.

      Marshall M. Strong, for defendant in error,
    Argued 1. that a notice should contain all the matter necessary to be stated in a plea, and set it out with the same certainty. 13 Johns 475; 20 id. 370; 8 Wend. 572 ; 24 id. 357, and the notice was defective. It does not admit the speaking of the slanderous words. 3 Cow. 370; Root v. King, 8 Cow. 633. It answers only a part of the declaration, while it professes to answer the whole of it. 3 Chitty’s Plead 1,003; 2 Wend. 541. 2. The amendment was sought to be made during the trial, and the application was addressed to the discretion of the court. The refusal to allow an amendment is not error. 3. Whatever the judge may state as to his opinion of the facts it is not error, if he leaves the facts to the determination of the jury. 4. The affidavit ex parte, in support of the motion for a new trial was properly rejected, the rules of practice requiring all affidavits or depositions in support of a motion to be taken on notice to the adverse party. 5. To make the method in which the jury arrived at their verdict illegal and improper, they must have agreed beforehand to be bound by the result. Graham on New Trials, 106,109.
   Miller, J.

This was an action for slander in the district court for Bacine county, in which Colton was plaintiff and Fowler defendant. The defendant pleaded the general issue, and notice of special matter to be given in evidence on the trial in justification, as follows: “The defendant will give in evidence, under the general issue, on the trial of this cause, that the plaintiff, before the speaking and publishing of the said several words by the said defendant, of and concerning the said plaintiff, as in the said several counts in the said declaration mentioned, to wit: on or before the 25th day of November, 1840, to wit: at Racine county aforesaid, did feloniously steal, take, and carry away, certain goods and chattels, to wit: one hive of bees and the honey, of one Daniel Lucas, and also one bag of flour, of him, the said defendant, as spoken by the said defendant, and charged by the said plaintiff in his said declaration, to wit: of the value of $50, all of which was contrary to the form of the statute in such case made and provided; wherefore the said defendant, if he spoke the said slanderous words, in the said declaration mentioned, was justified and had a right, afterward, to wit: on the 25th day of November, 1840, to wit: at Racine county, aforesaid, to speak and publish the said words of and concerning the said plaintiff, for the cause aforesaid.”

After the plaintiff had closed his evidence on the trial, the defendant offered evidence in justification, which was objected to, on the ground of the insufficiency and immateriality of the notice, which objection was sustained by the court, and the testimony rejected. This is the first error assigned.

The notice is allowed to be filed with the general issue. He may or he may not rely upon it, and the plaintiff is bound, notwithstanding the notice, to prove the facts set forth in the declaration. Vaughan v. Havens, 8 Johns 109. Generally, a notice must contain in substance, all the substantial matter of a special plea, but is not required to be in form. In actions upon contract, a notice is sufficient if it contain such a statement of special matter to be given in evidence at the trial as may prevent the plaintiff from b eing taken by surprise. The statute has prescribed no form, and each case must in some degree, depend upon its peculiar circumstances, and upon the application of a sound discretion in the court at the trial. Cham berlin v. Gorham, 20 Johns. 749. But the general rule undoubtedly is, that the notice should contain all the facts necessary to sustain a plea against a general demurrer, .or at least a motion for a judgment non obstante ver edicto. Bishop v. Earl, 17 Wend. 316. Although the notice is not required to be in the strict technical form of a plea, it must contain all the facts necessary to be stated in a special plea. Sheppard v. Merrill, 14 Johns. 475. And it must state truly, the facts intended to be given in evidence. Kane v. Sawyer, 14 Johns. 89. It must also be so particular as to enable the plaintiff to come prepared to meet the facts stated therein. Chamberlin v. Gorham, 20 Johns. 744. In slander, a notice of justification must be as precise and certain as a special plea of justification. Mitchell v. Borden, 8 Wend. 570. In a special plea, the felony must be charged with certainty, and the party must aver the speaking of the words, and expressly and distinctly confess the speaking. The plea or notice of the truth in justification, admits the malice, and puts the naked truth in issue. Root v. King, 7 Cow. 613; Matson v. Beech, 5 id. 499. And notice of special matter in slander should be drawn and proven with great particularity. Woodbeck v. Keller, 6 Cow. 118. Por charging the plaintiff with having sworn false, if the defendant intends to justify under a notice subjoined to his plea, he must give notice that he will prove, not only that the plaintiff swore false, but that he swore willfully and corruptly false. Mitchell v. Borden, 8 Wend. 570; M'Kinley v. Rob, 20 Johns. 351. Prom this array of authority, it must be apparent that the notice filed in this case was not sufficient. It is certain that it could not be sustained against a general demurrer, which is made the test by the supreme court of New York. It is confused, uncertain, and argumentative. The plaintiff could not be expected to be prepared to meet evidence in justification on this notice ; and if the defendant’s offer had not been overruled, the plaintiff must have been taken by surprise.

As a notice of special matter is not technically, a part of the record, it is not proper to dispose of it by demurrer, although it should contain all the facts necessary to sustain it if a plea, against a general demurrer. It is the practice to exclude evidence for insufficiency of the notice. It is the business of counsel to draw it correctly, at the risk of a rejection of the evidence.

After the testimony offered by defendant had been rejected, the defendant moved for leave to amend his notice, which was not granted by the court, and this is the subject of the second error assigned. The notice then on file had been allowed to be amended, according to the rules of the court, before the trial. Even if the refusal of this second amendment were the subject of error, we could not say that the court committed any error in this particular, for every indulgence was extended to the defendant that could reasonably be desired. The act concerning amendments provides, that “the court in which any action shall be pending shall have power to amend any process, pleading or proceeding.” This is not obligatory upon the court, but merely discretionary for the furtherance of justice. Now it is well settled, that the allowance or disallowance of amendments, when it is a matter of discretion, is not the subject of error. Mandeville v. Wilson, 5 Cranch, 15; Marine Ins Co. v. Hodgson, 6 id. 206; Chirac v. Reinicker, 11 Wheat. 280; Sheely v. Mandeville, 6 Cranch, 253; Walden v. Craig, 9 Wheat. 576; Ordroneaux v. Prady, 6 Serg. & R. 510; Clymer v. Thomas, 7 id. 180.

The court, in the charge to the jury, remarked, “that in considering the character of the plaintiff, you will also consider the character of the witnesses for and against, and give their testimony such weight as it may deserve. Such a witness as Isaac Goodpasture, when called upon this subject, will not be entitled to much weight.” In this, error is alleged, but there is none apparent. This was an opinion of the court, not in the least binding on the jury. An opinion of a fact, not given as binding on the jury, is not error. Porter v. M'Ilroy, 4 Serg. & R. 488. And it must clearly appear that the jury were excluded from finding for themselves. Riddle v. Murphy, 7 Serg. & R. 230. A court may give an opinion to a jury of the weight of evidence. Dunlap v. Patterson, 5 Cow. 243; Ex parte Bailey, 2 id. 479. And an opinion of the judge concerning facts is not the subject of error. Burd v. Donsdale, 2 Binney, 80; Long v. Ramsay, 1 Serg. & R. 72. The court has a right, and it is its duty, to explain to the jury that they are the judges of the facts in a case, and it is their province to give to the testimony of the witnesses its proper and legitimate weight and importance. The court in this case did not go further than the supreme court of Pennsylvania in the case of Burr v. Sim, 4 Whart. 156, where it was decided that it was not error in a judge to tell a jury that a witness was a “very willing witness,” and that “very little confidence was to be placed in her testimony ; ” nor to remark upon the strength or absence of evidence, or to suggest presumptions arising out of the relationship or conduct of one of the parties.

The defendant moved for a new trial on the alleged ground of misconduct of the jury in agreeing upon their verdict; and at the argument of this motion, he offered to prove “that the jury in ascertaining the amount of damages, marked the sums which they would allow, and then added the sums so marked together, and divided the whole by twelve and took the quotient as their verdict, which they returned into court; that the sums so marked varied from $50 to $1,000; and the defendant offered the affidavit of H. N. Wells to prove the fact, or, if the affidavit was not admissible, a witness was offered to prove them on the stand.” It appears that this offer was presented at the argument of the motion for a new trial, when the court made this entry: “The motion for a new trial being taken up for consideration, this offer is overruled.” The affidavit referred to did not appear to have been taken on notice. It is the practice in the third district to adhere to the rule requiring all depositions offered to be read on the argument and consideration of all motions, to be taken on notice to the opposite party ; and such being the rule, we will not say it was wrong to reject the offer. The court is not bound to hear a witness on the stand at the argument of a motion, particularly as it is not the practice. But even if the testimony had been perfect, and the witness competent to prove the facts contained in the offer, yet the court would have been right in overruling it. If the jury had made up their verdict in the manner stated, there was no error. There is no allegation of corruption on the part of the jury. There is no averment that the jury previously bound themselves to adhere to the result; but it is stated merely, that they did put down the amount each would allow, and did ascertain the quotient, which they agreed upon as their verdict. After the members of the jury argue the question, and agree to find for the plaintiff, in torts and other cases where there is no ascertained demand, it can seldom happen that they can or will agree at once upon a precise sum to be given in damages. There will necessarily arise a variety of opinions, and mutual concessions must be expected. A middle sum may in many cases be a good rule; and though it is impossible but this mode may be sometimes abused by a designing juryman fixing upon an extravagantly high or a very low sum, yet unless such abuse appears, the fraudulent design will not be presumed. It is immaterial whether they come to the result upon paper, or in the course of conversation, so that they agree, after the result is ascertained, to make that result their verdict. Cowperthwaite v. Jones, 2 Dallas, 55; Shobe v. Bell, 1 Randolph, 39; Grinnell v. Phelps, 1 Mass. 541; Dana v. Tucker, 4 Johns. 487.

The supreme court of the United States will not take cognizance of questions of law, which may arise in the circuit or district courts upon motions for a new trial, as it is a motion addressed to their discretion (Wood v. Young, 4 Cranch, 237; Henderson v. Moore, 5 id. 11; Barr v. Gratz, 4 Wheat. 213); but under our statute it is a legitimate subject of inquiry in this court. It will appear that we have not hesitated to express an opinion upon the reasons alleged for a new trial in this case, although they were not presented to the district court in such a manner that they might have been considered and passed upon there, as required by the practice (Houghton v. Stone, 4 Wend. 175); yet, to settle the practice in regard to the conduct of jurors in this particular, we have consented to consider the subject as properly presented.

Judgment affirmed, with costs.


text:
    Low vs. Merrill.
    1. Alteration of note. The date of a promissory note is material, and if altered without the maker’s consent, the note is vitiated, and it makes no difference whether the time of payment is accelerated or extended by the alteration.
    2. Burden of proof. If a promissory note appears upon its face to have been altered, it is for the holder to prove, and not for the maker to disprove, that it was altered under circumstances that will make it available, and unless he adduces evidence to explain the alteration, it is proper for the jury to find for the defendant.
    3. Evidence. The identity of the note declared upon is a question for the jury, and testimony upon that subject, and to explain any alteration or suspicious appearance of the note should be received.
    4. Same. If a note has been altered in a material part, it is inadmissible in evidence for any purpose, unless to defeat a claim on the ground of fraud, or to establish usury, or to convict a party of a crime.
    5. Same. Where the promissory note offered in evidence appears on its face to have been altered, and the defendant has not denied its execution under oath, still the plaintiff must prove that the alteration was made with the consent of the defendant, before it can be read to the jury.
    6. Pleading—denial of execution. Although the defendant does not deny the execution of the note under oath, he does not waive any other legal defense, and his plea puts in issue the identity of the note declared upon.

      ERROR to tlie District court for Dane County.
    This was an action of assumpsit, commenced by Merrill against Low, in the Dane county district court.
    The declaration contained two counts upon two several promissory notes; one for $1,215.68, dated April 7, 1842, and the other for $300, dated April 14,1838, payable ninety days after date. The defendant pleaded the general issue, but did not deny the execution of either of the notes under oath. At the trial of the cause, the plaintiff offered the following promissory note in support of one of the counts of his declaration:
    “ $300. For value received, I promise to pay to Henry Merrill, or order, the sum of three hundred dollars with interest, ninety days after date.
    (Signed) “ G. LOW.”

    ‘ ‘ Fort Winnebago,
    [March 24, 1838.]
    “April 14,1838.”
    It appeared on the face of the note, that the original date, March 24, 1838, had been marked with a pen so as to be partly obliterated, and immediately under it was written, “April 14, 1838.” The defendant objected to the note as evidence, unless the plaintiff should first prove that the date was altered before it was signed, or afterward, with the consent of the defendant. The court overruled the objection, and permitted the note to be read to the jury. The defendant then offered to prove that the note had been altered by the plaintiff after it was executed without the consent of the defendant, but the court refused to permit him to prove these facts. The jury returned a verdict in favor of the plaintiff for the amount of both notes and interest, upon which the court rendered judgment.

      Ohauncey Abbott and Edward V. Whiton, for plaintiff in error.
    1One of the notes upon which the verdict was founded showed upon its face that it had been altered in its date, and it became necessary for the plaintiff to prove that the alteration had been made with the consent of the defendant, before he conld be allowed to read it in evidence. Chitty on Bills, 212; Johnson v. The Buhe of Marlborough., 3 Starkie, 313 ; 5 Bing. 183.
    2The alteration of a note in a material part, without the consent of the maker, invalidates the note. Chitty on Bills, 204; 1 Chitty’s Plead. 213; Masters v. Miller, 4 Term, 350 ; 2 H. Bl. 141; 15 East, 29 ; 1 Taunt. 20; Banh of the United States v. Mussel et at., 3 Yeates,- 371; 3 Cranch, 37.
    When a note has been thus altered in a material part, it is inadmissible in evidence for any purpose whatever, in favor of the holder. Jardin v. Payne, 1 Barn, and Ad. 617 ; 7 B. & C. 416.

      Field & Botlcin, for defendant in error,
    contended that the defendant should have denied the execution of the note under oath, according to the statute, before any proof could be required of the plaintiff in respect to the alleged alteration, and that he could not have the benefit of the defense insisted upon without such denial.
   Miller, J.

This was an action of assumpsit in the district court for Bane county, on two promissory notes, given by Gideon Low, the defendant in this cause, to Henry Merrill., the' plaintiff therein. The defendant pleaded the general issue, but did not file ah affidavit with his plea, denying the signature to, or execution of •said notes. When one of the notes was offered to be read in evidence to the jury, it appeared to have been altered in the date, thus: ‘ ‘ March 14,1838, ’ ’ had been first written as the date, and the word “March ” and the figures “ 14 ” were partly obliterated or defaced, and underneath the first date, “April 14, 1838,” was written. The defendant then objected to the reading of the note so altered, in evidence, unless the plaintiff showed that the said alteration had been made before the said note was signed and executed by the defendant, or afterward with Ms permission; which, objection was overruled by the court, and the note allowed to be read in evidence.

The defendant then offered to prove that the date of said note had been altered by the plaintiff, after it had been signed and executed, and without his consent or permission, which said offer of defendant was overruled by the court.

The declaration charges the note to have been given on the 14th day of April, 1838, which the defendant by his plea denied. In every written instrument, the day laid is material and must be proved as laid, when the action is brought on the instrument itself. 2 Peake, 196. If the plaintiff had proven the note to have been given on the 14th of March, it would certainly not be the identical note the defendant had given, as laid in the declaration. It is tMough the note the plaintiff has a right of action; and it is the only medium by which he can recover. The question raised by the issue was, whether or not the defendant promised in the form stated in the declaration; and the substance of the plea is, that according to that form he is not bound or did not promise.

It is conceded that the date of a note is material;' and an alteration of the date is an alteration, of a material part, which vitiates it, if done without the maker’s consent. Chitty on Bills, 204; Bank of the United States v. Russell, 3 Yeates, 391; Masters v. Miller, 2 H. Black. 141. And. the principle is the same whether the day of payment 'is thereby accelerated or extended. Stephens v. Graham, 7 Serg. & R. 505. To insure the identity, and to prevent the substitution of one instrument for another, is the foundation of the rule, which is necessary to prevent tampering with written instruments.

In Chitty on Bills, 212, it is stated, £C that with respect to bills and notes, and other negotiable securities, the rule has been laid down, namely, that if the instrument appear on its face to have been altered, it is for the holder to prove, and not for the maker to disprove, that it was altered under circumstances which will make it available.” It is incumbent on the plaintiff to account for a suspicious form or obvious alteration of a note, and unless the plaintiff adduces evidence to explain the alteration, it is proper for the jury to find for the defendants. Johnson v. The Duke of Marlborough, 2 Starkie, 263. The identity of the note is a question for the jury, and testimony upon that subject,, and to explain any alteration or suspicions, should certainly be received. Bunker v. Bleckwell, 2 Johns. Cases, 198; Buller’s N. P. 255; Marshall v. Grugler, 10 Serg. & R. 164; Lewis v. Payne, 8 Cow. 71; Gibbs v. Osborne, 2 Wend. 555; Stephens v. Gorham, 7 Serg. & R. 505. And if a note has been altered in a material part, it is inadmissible in evidence for any available purpose whatever, in favor of the holder, until the alteration is satisfactorily explained, unless to defeat a claim on the ground of fraud, or to establish usury, or convict a party of a crime. It cannot be received in evidence under the money counts. Chitty on Bills, 213, and the cases there cited.

It is provided in section 18 of the act concerning testimony and depositions, on page 250 of the statutes, that “ every written instrument, purporting to have been signed or executed, by any person, shall be proof that it was so signed or executed, until the person by whom it purports to have been signed or executed shall deny the signature or execution of the same by his oath or affidavit ; but this section shall not extend to instruments purporting to be signed or executed by any person who shall have died previous to the requirement of such proof.” This section merely dispenses with proof of the signature or execution of the instrument, unless the party shall deny the same under oath. It was intended for the convenience and relief of the plaintiff. The defendant did not deny the signature or execution by his oath or affidavit, but he did not thereby waive any of his legal rights at the trial, except proof on the part of the plaintiff of the signature or execution. The note was in the hands of the payee when it was altered or supposed to have been altered, and it could not be presumed that the defendant would be cognizant of a fraudulent or illegal alteration of his note, before its presentation at the bar. Before then the plaintiff ought to have known its suspicious appearance and legal defects, and it was his duty to fortify himself on that point. The signature or execution of the note was not the question in this case, but its identity was made by the plea, an important question for the consideration of the jury.

It is the opinion of the court that the district court should have required the plaintiff to account for the alteration of the note, before he should have been permitted to read it in evidence, or to have recovered a verdict upon it. And, as the defendant offered to prove more than by law he was required to do, there was error in rejecting his offer.

Judgment reversed with costs.

Irvin, J., dissented.


author: Irvin, J.

text:
    Jones vs. Webster.
    Attachment—aeeidavit. An affidavit for an attachment which states the amount of the plaintiff's demand to be “ over and above the sum of $50,” does not state the amount of his demand with sufficient certainty to authorize the issuing of the writ. Latlvrop v. Snyder, 16 Wis. 293.
    ERROR to the District Court for Grant County.
    The case is stated in the opinion of the court.

      F. J. Dunn, for plaintiff in error.

      A. L. Collins and T. P. Burnett, for defendant in error.
   Irvin, J.

This case came up on error to the district court of Grant county, and in a proceeding in attachment.

The writ of attachment was sued out on the affidavit of Francis J. Dunn in these words : “ That he, affiant, is the attorney of George W. Jones, and affiant further says, that he verily believes that Daniel Webster is indebted to said George W. Jones in a sum of money over and above the sum of $50 lawful money, and the said indebtedness arises out of and is founded upon contract in writing, styled in said contract, a memorandum of agreement; affiant further says, that the said Daniel Webster is not a resident of Wisconsin Territory.” On this affidavit, the judge of the district indorsed his satisfaction of the truth of the facts therein stated.

At the March term, 1843, the defendant, by his counsel, moved the court to quash the writ arid dismiss the cause, for the following reasons, viz.: “1. Because of insufficiency of the affidavit: (1) In that said affidavit was not made by plaintiff, or a credible witness, but by the attorney of said plaintiff, who is not a witness in contemplation of law: (2) In that the amount of plaintiff ’ s demand is not set forth : And (3) In that the circumstances upon which the belief of the facts set forth is founded, are not stated.

2. Because it appears by the amended return of the sheriff, that, in serving the writ in said cause, he did not enter upon the premises attached, in order to attach and appraise them.” This motion was sustained by the district court, and to this decision of the court the plaintiff, by his attorney, excepted; and for error, assigns the following causes, viz.: “(1) The court erred in sustaining the second and third reasons of the defendant in his motion to quash the writ and dismiss the proceedings herein. (2) The court erred in quashing the writ and dismissing the proceedings herein.”

The decision of the court below upon the motion was general, so far as the record shows, while in the assignment of errors, it is noticed as having been given upon the second and third reasons assigned for quashing the writ, which include this portion of the affidavit. “And affiant further says that he verily believes that Daniel Webster is indebted to said George W Jones in a sum of money over and above the sum of $50, lawful money, and that said indebtedness arises ont of and is founded upon contract in writing, styled in the said contract, a memorandum of agreement.”

The law provides that “to authorize the issuing an attachment in any case, the defendant must be indebted to the plaintiff in a cause of action arising out of, founded upon, or sounding in contract, or upon a judgment or decree of some court of law or chancery” (2d section of . the act of 1842); and by the 3d section it further provides, that “the facts necessary to entitle a party to a writ of attachment shall be proven to the satisfaction of a district judge or of a supreme court commissioner of the proper county, by the affidavit of the -plaintiff or some credible witness, stating therein the nature and amount of the plaintiff’s demand, and the circumstances upon which the belief of such facts is founded, and such officer shall indorse the fact of his satisfaction on the affidavit, which shall be filed with the clerk of the court before the writ shall issue.”

The first question presented in this case, as contained in the motion below, which was sustained in general terms, is regarded untenable. Upon the second and third questions, the inquiry relates to the nature and amount of the demand, and as this case was submitted to a court consisting of two of the three members, and as those differ as to the sufficiency of the statement in relation to the nature of the demand, the statute will be considered as unconstrued therein, but in relation to the amount, there is no such division of opinion. The law requires that the nature and amount of the demand shall be stated. Is the amount stated herein ? The language is this, as used by the affiant: “That he verily believes that Daniel Webster is indebted to said George W. Jones in a sum of money over and above the sum of $50.” From an examination of the language used, it will be readily perceived that no sum is stated at all. It is true, that the affiant says he verily believes that the defendant is indebted, in a sum of money over and above $50 ; but at what point, in the vast range of numbers, the mind is left wholly to the resources of the imagination. It would be unwise and unsafe, and wholly at war with the practice, properly established in the harsh remedy by attachment, to regard such a statement of the amount of the demand as sufficient. The district court therefore did right in sustaining the motion to quash, particularly when it is remembered, that this uncertain sum is stated upon the mere belief of the affiant. The statement of non-residence is positive and unequivocal, by a credible witness, and not liable to the objection urged against it.

Believing, as this court does, that the statement of the amount was wholly insufficient, we affirm the judgment of the district court with costs.


text:
    Slaughter vs. Bevans.
    1. Return—presumption. The return of a writ is presumed to have been made on the return day, unless the date of the return on the writ, or an entry of record, shows specially and positively, that it was made at a different time.
    2. Attachment—default. In proceedings by attachment, the first default is so much a matter of form, that to enter it without previous publication of notice, or before proof of publication is filed, is not error.
    3. Amendment. An affidavit for a writ of attachment cannot be amended.
    4. Indorsement on affidavit. The indorsement of satisfaction on an affidavit for a writ of attachment, is an indispensable pre-requisite to the issuing of the writ, and where a writ has been issued without such indorsement, the officer cannot be permitted to come into court, pending the suit, and indorse his satisfaction, nunc pro tunc.

      5. Attachment. The law does not confine the plaintiff in attachment, in suing out his writ, to the county where the defendant resides or where he is found; the affidavit that the defendant has property in the county where .the. writ issues, is a sufficient authority for commencing in such county.
    6. Former recovery. Where the plaintiff had obtained a decree in chancery for the balance due him upon the coming in of the master’s report on foreclosing a mortgage, such decree may be pleaded in bar as a former recovery, in an action at law between the same parties for the recovery of the original demand,

      ERROR to the District Court for Iowa County.

      Bevans sued out a writ of attachment against Slaughter in the Iowa county district court, on the 10th September, 1839. On the same day, on different affidavits, other writs were issued to the counties of Brown, Dane, Grant, Milwaukee, and Racine. There was no indorsement of satisfaction on the affidavit for the writ, by the officer before whom it was made. The sheriff of Iowa county returned the writ directed to him, nulla bona, and served personally, but how or when the personal service was made, does not appear by the return. The writs to Grant and Racine counties do not appear to have been returned at all, and levies were made upon property in Brown, Dane and Milwaukee counties. At the April term, 1840, the first default of the defendant was entered ; and at the September term, 1840, the plaintiff asked leave of the court for the officer before whom the affidavit was made to come in and indorse his satisfaction thereon, which was objected to by the defendant, but the court overruled the objection, and granted leave, and thereupon the officer indorsed upon the affidavit that he was satisfied, at the time when it was made, of the truth of the facts therein stated, to which the defendant excepted. At the same term, and previous to the indorsement of satisfaction, the second default of the defendant was entered, and the plaintiff afterward filed his declaration in assumpsit on the 21st September, and on his motion the defendant was ruled to plead by the next morning, and on the' same day proof of the publication of notice of the writs to Grant, Brown, Milwaukee and Dane counties, was filed for the first time, but no publication appears to have been made of the writs issued to Iowa and Racine counties; afterward, at the same term, the defendant, in response to the rule to plead, made a motion to dismiss the proceedings, on the ground that at the commencement of the suit he resided, and still continued to reside, in the county of Dane, which fact was made to appear to the satisfaction of the court.

      The motion, to dismiss was overruled, to which the defendant excepted; whereupon, the defendant filed a plea in abatement, traversing the truth of the affidavit, upon which an issue was made and a jury impaneled, who returned a verdict sustaining the affidavit; and afterward, at the same term, the plaintiff filed a second declaration in assumpsit, and afterward, on the 29th day of April, the defendant filed his plea of the general issue and also the following special plea in bar:
    “And for further plea in this behalf, the said defendant, by leave of the court here had, says: that heretofore, to wit: in the September term, in the year 1840, in the said district court in the said county of Iowa, and after the commencement of this suit, the said plaintiff, by the consideration, judgment and decree of the said court, recovered, in a certain suit in chancery then and there decided in the said district court, in which the said John Bevans was complainant, and said William B. Slaughter was defendant, against the said defendant, the sum of $5,387, on occasion of the not performing of the same identical promises and undertakings in the said declaration mentioned, together with his costs by him about his suit in that behalf expended, whereof the said defendant was convicted, as by the record of the proceedings thereof, still remaining in the said district court, in the county aforesaid, more fully and at large appears, which said judgment and decree still remains in full force, and not reversed, satisfied or made void, and this he is ready to verify, wherefore he prays judgment,” etc.
    To this plea the plaintiff put in a general demurrer. Afterward the plaintiff withdrew his second declaration, and the record does not show to which declaration the pleas were pleaded, but both the declarations were for the same cause of action. The court sustained the demurrer to the defendant’s special plea.

      Bevans had filed a bill in chancery against Slaughter in the Iowa county district court, to foreclose a mortgage that had been given to secure the payment of the same promissory notes that were declared upon in this case. Upon the coming in of the master’s report of the sale of the mortgaged premises, the court decreed against Slaughter the payment of the balance due of the mortgage debt, according to the provisions of the statute. Pending this suit, the complainant made a motion in the chancery cause for leave to proceed in his action at law, which was granted by the court.
    The cause was tried at the September term, 1841, and upon the trial, the jury returned a verdict in favor of the plaintiff for $5,608.49, upon which the court rendered judgment.

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

      M. M. Jackson and F. J. Dunn, for defendant in error.
   Miller, J.

This suit was commenced by attachment in the district court for Iowa county, by John Bevans against William B. Slaughter. It was predicated on an affidavit of plaintiff, charging the defendant with fraudulently disposing of his property, so as to hinder and delay his creditors. The affidavit was made before a justice of the peace, the 10th day of September, 1839 (before the act in the Revised Statutes was amended), and the justice had neglected to indorse his satisfaction thereon, previous to the issuing of the writ. At the September term of said district court for the year 1840, the court allowed the said justice to appear in court and make the necessary indorsement of satisfaction on said affidavit, nunc pro tunc, the defendant objecting to the same. In pursuance of the tenth section of said act, additional writs to the writ issued to the sheriff of Iowa county, were issued on the same day to the sheriffs of Brown, Grant, Milwaukee, Dane, and Racine counties, and on which property was attached in said counties. It appeared by the motion filed to dismiss the writ and proceedings, that the defendant before and at the time of the commencement of the suit resided iu Dane county. The court overruled the motion to dismiss the writ and proceedings, and the cause proceeded to final judgment.

The first error assigned for our consideration is as follows :

The court erred in recording the first default of the defendant before proof of publication filed.

The third section of the act concerning attachments, directs the clerk who issued the writ, upon the return of the writ, to make out an advertisement, which is to be published within thirty days. When these writs were returned, does not appear. The return of a writ is presumed to have been on the return day mentioned therein, unless the date of the return specially and positively appears, by indorsement on the writ itself; or entry of record. By the seventh section, the first default of the defendant is to be entered at the first or return term, which could not be done if the writ had not been returned in time for the publication, which may not have been issued in time, or if so, may be retained in the sheriff’s hands until the return day. The first default is so much a matter of form, that the entry thereof without previous publication, or proof of the same, is not error.

The second error assigned is, that the court erred in permitting the affidavit to be amended. There was no amendment made of the affidavit, nor could there be any, for an affidavit of this kind is not amendable under any circumstances. The error assigned, we aré to infer from the argument, has reference to the permission to the justice to indorse his satisfaction. This court decided in the case of Mayhew v. Dudley, ante, 95, that the satisfaction of the officer is an indispensable pre-requisite, and that it can regularly appear in no other way than by his own indorsement of the fact; and that the clerk could not properly and legally issue the writ without such evidence of satisfaction. The same principle was reiterated in the case of Morrison v. Fake, ante, 133. And the legislature was so well satisfied of the propriety of this rule, that in the act to amend the act concerning the writ of attachment, approved February 16, 1842, it was incorporated therein. From this it will appear that the indorsement of the justice should not have been allowed, and that the district court erred therein.

The third error assigned is, that the court erred in rendering final judgment before two defaults of defendant had been entered.

At the second term, the defendant appeared and filed a motion to dismiss, which at the April term, 1841, was overruled. At this term, the defendant filed his plea in abatement, which was decided against him, when the defendant filed his plea of the general issue, and a plea of a former recovery. At the September term following, the cause being at issue, it was tried by a jury. This state - ment is an answer to the error assigned. The defendant’s second default could not have been legally entered in the face of his plea.

The fourth error assigned is: That the court erred in overruling the motion to dismiss the attachment. The motion was made at the September term, 1840, on the ground that the defendant was, at the time of the commencement of the suit, and continued to be, a resident of Dane county, and not of the county of Iowa. The process of attachment is, in the case of a non-resident, a means of compelling a party to appear through his property. It is not regulated by the general law respecting proceedings in courts, but it is regulated exclusively by the act upon the subject of attachments. That act does not confine the plaintiff in his suit, to the county where the defendant resides or is found. The original affidavit filed by the plaintiff sets forth that the defendant had property in the county of Iowa, which was enough to authorize the writ in that county, if the point were doubtful. In this the court did not err.

The fifth error assigned is : “That the court erred in sustaining the plaintiff’s demurrer to the second plea of the defendant.” The said second plea was a plea of former recovery, good on. its face, to which the plaintiff demurred generally. This court is unanimously of opinion that there was error in this decision; and as error is so apparent, it is not necessary to refer to authority upon the subject.

This embraces all the errors material on the record. It is therefore considered and adjudged, that the judgment of the district court of Iowa county be reversed, with directions to said court to set aside the writ of attachment and all subsequent proceedings.


text:
    Clark and another vs. Gilbert.
    1. Attachment—affidavit. An. affidavit for an attachment under tke law of 1839, charging fraud, as the affiant verily believes, with an in- ■ dorsement of tke officer tkereon, tkat ke is satisfied that the matters thm'ein set forth we true, is sufficient.
    3. Same. If tke affidavit is in proper form under tke statute, tke certificate of tke officer tkat ke is satisfied, is all tkat is required.
    3. Sham pdea. A plea in abatement of a misnomer of a defendant for want of tke addition of “junior” to kis name, may be regarded as a Bham plea and treated as a nullity.
    ERROR to the District Court for Bane County.
    The case is stated in the opinion of the court.

      JEIdward V. Whiton and Moses M. Strong, for plaintiffs in error,
    contended that the affidavit upon which the attachment issued was not sufficient, that it stated neither facts nor circumstances, but mere belief. The decisions in New York say, that proof of facts and circumstances must be made, and that belief is not- sufficient Vosburgh r. Welch, 11 Johns. 175 ; Taiman v. Bigelow, 10 Wend. 412. Our statute requires the officer to be satisfied of facts, and the court should examine the affidavit, and see whether it contains matter sufficient, legally to satisfy him that the facts existed, and if it does not the writ should be quashed. See the case of Morrison v. Beam,

      ante, 244. The indorsement of the officers does not show that he was satisfied of the existence of any fact that would authorize the writ to issue ; it only shows that he was satisfied that the affiant believed the facts. Belief itself is not sufficient, and satisfaction of belief amounts to nothing. The affidavit is also defective, in hot stating the nature and amount of the indebtedness.

      Field é Botlcin, for defendants in error.
   Miller, J.

The plaintiffs in error were defendants in an action of assumpsit commenced by the defendant in error in the district court for Dane county, by attachment. The affidavit for the attachment was made before the clerk of the said court, before the attachment law was amended, and is as follows: “William H. Bruce, agent of Francis (Gilbert, being duly sworn, doth depose and say, that Satterlee Ciarle and Henry Jones, by the name of Ciarle & Jones, are justly indebted to the said Gilbert, in the sum of $305.50, on a note of hand and balance of account, and that he verily believes that said Ciarle efe Jones are about fraudulently to dispose of their property, so as to hinder their creditor, the said Gilbert: ” On which the clerk make this indorsement: “The above affidavit, being subscribed and sworn to, is to me satisfactory evidence that the matters therein set forth are true.

A motion was made in the district court on the part of the defendants, to quash the writ for insufficiency of the affidavit, and also of the indorsement of satisfaction by the clerk. The motion was overruled, and this forms the assignment of error in this court.

An inspection of the paper is sufficient to satisfy the court that the district court did not err. The affidavit is complete, according to the form, under the statute before the amendment. The certificate of the officer is all that is required. We understand by it that the officer was satisfied that the defendants were about fraudulently to dispose of their property, so as to hinder their creditor, the plaintiff.

On. the 26th day of July, which was the ninth day of the term, the plaintiff in error filed, as an additional error, that the court erred in overruling the plea in abatement, no issue of law or of fact having being made upon it. This plea in abatement is on the alleged ground, that Satterlee Clark is known as’ Satterlee Clark, Junior, and is not so styled in the record, etc. The rules of court require the assignment of errors to be filed on the first-day of the term, and the court are under no obligations to notice any filed afterward. The court will notice an error apparent on the record when necessary, for the sake of justice; but this appears too trivial to require any attention from us. And after a motion was filed by defendants to dismiss for reasons filed, the court, no doubt, considered this plea as scarcely deserving more than a mere passing notice, and no doubt treated it as a sham plea.

Judgment affirmed with costs.


text:
    Stevens vs. Coon.
    1. Contract — legal impossibility. A contract in writing was made as follows: “In consideration of A. B. entering tlie west half of the north-east quarter of section 35, in town. 13, range 18,1 bind myself that the said eighty acres of land shall sell on or before the 1st October next for $200 or more, and the said A. B. agrees to give me one-half of the amount over $200 said land may sell for, in consideration of my warranty. C. D.” “ I agree to the above contract. A. B.” Held, that the contract was void, as binding C. D. to the performance of a legal impossibility, inasmuch as he had no power to compel the sale of the land on the day named.
    2. Same. It seems that if the contract had been that the land would be worth $200 by a given day, a recovery might be had upon it, if the land was not of that value on the day specified.
    ERROR to the District Court for Jefferson County.

      Coon brought an action of assumpsit against Stevens in the Jefferson county district court upon a written con tract, by which Stevens bound himself that a certain eighth of a section of land which Coon was about to enter, should sell by a given day for $200, or more, and Ooon agreed to give Stevens one-half of all the land should sell for, over $200.
    On the trial in the court below, Coon, the plaintiff, proved the entry of the land, and introduced evidence to prove that the land, at the time specified in the contract, was worth about $1.25 per acre.
    Upon this testimony, the defendant, moved the court to instruct the jury as in case of a nonsuit, for the following reasons:
    “ 1. Because the said supposed contract was a nudum pactum, by which the defendant received no benefit, and the plaintiff no injury.
    2. Because the supposed contract assumes to bind the defendant to perform an impossibility.
    3. Because said writing discloses a gambling contract, if any.”
    The court overruled the motion and refused the instruction asked for, and the jury returned a verdict in favor of the plaintiff for $116.50; upon which the court rendered judgment.

      David Brigham, for plaintiff in error:
    1. The contract itself is a gambling contract, and against the policy of the law, and as such, a recovery cannot be had upon it. 2 Mass. 6; 3 Pick. 449.
    2. The contract is void, because it bound Stevens to the performance of an impossibility. When Coon entered the land, no one but himself had any control over the sale of it. It is immaterial how high the land might have risen in value, if Coon did not choose to sell, Stevens had no power to compel him to do so for $200, or any greater sum. A legal impossibility is not binding on a party, even if he has entered into a contract for its performance. Coke on Lit. 206; Pothier on Obligations, 71; 2 Saund. 173, d.; 6 Petersdorff’s Ab. 218.

      Edward V. Whiton, for defendant in error.
   Dunn, C. J.

Error is brought in this case to reverse a judgment of the district court of Jefferson county.

Coon, plaintiff below, brought his action of assumpsit against Stevens, defendant below, to recover damages on a liability growing out of a contract, which is in the words, etc., following, viz.:

“Astor, March 23, 1839. In consideration of C. J. Coon entering the west half of the north-west quarter of section 35, in town. 13, range 13, I bind myself that the said eighty acres of land shall sell, on or before the 1st October next, for two hundred dollars or more, and the said Coon agrees to give me one-half of the amount over two hundred dollars said land may sell for in consideration of my warranty. HAMILTON STEVENS.”
“I agree to the above contract, C. J. COON.”

At the August term of the said Jefferson county district court, in the year 1840, the said defendant Stevens pleaded the general issue which was joined by the said plaintiff Coon, and after several continuances, the case was tried at the October term, 1842. On the trial, the above contract, and the receiver’s receipt to said plaintiff Coon, for the purchase-money for said tract of land described in said contract, were read in evidence to the jury; and Abraham Vanderpool, a witness, testified “that he had visited that part of the country where the land lies, specified in said writing, and was upon the same, as he has no doubt, and estimated the present value of the same at $1.50 per acre, and that in October. 1839, it might be worth $1.25 an acre.” Upon this evidence and testimony the plaintiff rested his case.

Under the construction put on the contract read in evidence, the jury found for the plaintiff $116.50 in damages, and judgment was entered thereon. There is manifest error in this decision of the court. Prom an inspection of the contract, it is obvious that it is not such an one as is obligatory on either party. There is no reciprocity of benefit, and it binds the defendant below to the performance of a legal impossibility, so palpable to tbe contracting parties, that it could not have been seriously intended by the parties as obligatory on either. The undertaking of the defendant below is, “that plaintiff’s tract of land shall sell for a certain sum by a given day.” Is it not legally impossible for him to perform this undertaking ? Certainly, no man can in legal contemplation, force the sale of another’s property by a given day, or by any day, as of his own act. The plaintiff was well apprised of the deficiency of his contract on the trial, as the testimony of his witness was entirely apart from the contract sued on, and was directed in part to a different contract, and such an one as the law would have recognized. If the contract had been that the tract of land would be worth $200 by a given day, then it could have been recovered on, if it did not rise to that value in the time. 1 Comyn on Contracts, 14, 16, 18; Comyn’s Dig., Title “Agreement;” 1 Pothier on Obligations, 71; 6 Petersdorf’s Abridg. 218; 2 Sand. 137 (d.) The district court should not have entered judgment on the finding of the jury in this case. The construction of the contract by the district court was erroneous.

Judgment reversed with costs.