text:
    Johnson vs. Wilson, Administrator, etc.
    1. New trial.—After two trials before a jury, resulting in concurrent verdicts, a new trial will not be granted, except for extraordinary causes.
    2. Foreign administrator—Waiver.—An administrator as such cannot maintain an action in the courts of Wisconsin by virtue of letters of administration granted in any other Territory or State; but this objection will be waived unless taken at the proper time and in the proper manner.
    3. Pleading. — The proper method of objecting to the right of a foreign administrator to sue in our courts is to crave oyer of his letters of administration, and then plead in abatement. After pleading the general issue the objection cannot be taken.
    ERROR to the District Court for Iowa County.
    Action of assumpsit brought by Robert Wilson as administrator of the estate of Thomas Wilson, against Esau Johnson, to recover the amount of a draft or order for the sum of two hundred dollars, drawn by Johnson upon one Lee in favor of the plaintiff’s intestate, which was not paid on presentation by the drawee. The defendant pleaded the general issue with a notice of set-off. At the first trial the plaintiff obtained a verdict, which was set aside by the court and a new trial granted. At the second trial the plaintiff offered in evidence letters of administration granted to him on the estate of Thomas Wilson by the probate justice of Vermilion county, Illinois, on the 7th day of October, 1837, to the reading of which the defendant objected, but the district court overruled the objection. He also offered in evidence the order on which he brought the action, the defendant admitting that his signature thereto was genuine, but it was not read to the jury until the defendant had entered upon his case, when he objected to its being read, as the plaintiff’s testimony had been closed. The instructions given and refused appear in the opinion of the court, but the record does not contain the testimony upon which they appear to have been based.

      Moses M. Strong, for the plaintiff in error,
    contended that the district court erred in permitting the letters of administration, granted in Illinois to the plaintiff, to be read in evidence, and that as an administrator he had no right to maintain an action in Wisconsin by virtue of letters granted to him in any other State or Territory; and. he cited Story on Conflict of Laws, § 513 ; 2 Kent’s Com. 431; 1 Williams on Executors, 287 ; 3 P. Wms. 369 ; 2 Atkins’ Ch. 63; 9 Cranch, 152; 1 id. 92; 5 Peters, 527; 12 Wheat. 175; 11 Mass. 262, 313 ; 3 id. 522; 1 Johns. Ch. 156 ; 1 Pick. 85 ; 6 Johns.’ Ch. 357; 7 Cow. 67; 4 Mason, 32; 1 Dali. 678 ; 1 Binney, 63 ; 9 Serg. &Rawle, 256.

      F. J. Dunn, for the defendant in error,
    insisted that this objection was not taken at the proper time nor in the proper manner; that the defendant below, having pleaded the general issue and gone to trial on the merits, had admitted the plaintiff’s right to sue, and that he should have raised the objection before pleading to the merits.
   Miller, J.

This was an action of assumpsit brought by the defendant in error against the plaintiff in error, to recover the amount of an order, etc. The cause was twice tried on its merits on the general issue, with notice of set-off; and, to reverse the judgment rendered on the second verdict, this writ of error was sued out. •

The first error assigned is, “that the district court should have granted a new trial, because the verdict of the jury was contrary to law and evidence.” This court is not in possession of the facts sufficient to determine whether injustice has been done to the defendant by the decision of the jury on the evidence in the cause; and even if it were, it would require an extraordinary case to induce the court to set aside the verdict of a jury a second time. The reasons in law for a new trial are embraced in the bill of exceptions allowed and signed by the judge, and now included in the errors assigned. So far as can be collected from the record, the court very properly overruled the motion for a new trial, and left the party to his remedy by writ of error on his bill of exceptions.

The second error assigned is, “that the court erred in not arresting the judgment, because the declaration does not show such a case as entitled the plaintiff to recover.” This point was raised in the district court on a motion in arrest of judgment, which was overruled, and is now assigned for error. The declaration alleges a promise to Thomas Wilson in his life-time; that the order was negotiated and in his possession at the time of his death, and contained all the essentials of a cause of action. Although the declaration is not as formal as it might have been drawn, yet, after a trial on the merits and verdict, we consider it sufficient. 17 Serg. & Rawle, 250; 15 id. 61; 1 Pet. 489; 1 id. 9.

The third error assigned is disposed of by our decision on the second.

The fourth error assigned is the one most relied on by the'plaintiff in error. The question attempted to be raised is, whether an administrator appointed by the justice of probate in the State of Illinois can maintain an action in the courts of this Territory. It is abundantly clear that a foreign administrator cannot maintain an action in our courts. The officer granting the letters of administration is one of limited powers and jurisdiction, and can convey or grant no authority beyond the limits of his own State. And even if he could, it would not be proper to allow a foreign administrator to come into our courts and, with their aid, collect the assets of the estate, carry them into another jurisdiction, and thereby require the creditors of the deceased in this Territory to receive payment or distribution of the same according to the laws of a foreign and distant government. This point is weft settled in all the States of the Union, and the privilege can only be extended by positive statute. In this case, there is nothing in the declaration to show that the administration was not granted in this Territory; the legal inference is that it was so granted. The defendant went to trial twice, on the merits under the general issue, without any notice to the plaintiff that he intended to question his right to commence and prosecute this action. If the objection had been reduced to some definite form in time, there would have been no difficulty in determining the cause against the plaintiff. The issue was joined and the parties went to trial on the merits, which rendered it unnecessary for the plaintiff to exhibit his letters of administration on the trial; nor could the defendant have been permitted to offer any evidence on that point, and whether the plaintiff proved, or attempted to prove, that he was the legal administrator, was immaterial under the issue. 11 Mass. 314. And, if I mistake not, the same point is decided in 3 Day. In almost all the cases cited at the bar, on the argument of this case, it appears that the point was raised by plea in abatement, or special plea in bar. This matter should have been brought up in one of these ways. It is, in effect, a plea to the disability of the plaintiff. It does not touch the merits of the action or the validity of the demand, • but merely alleges that the plaintiff is not entitled to maintain the action. 1 Chit. Pl. 445; 1 Saund. 274, note 3; 11 Mass. 315. Mr. Justice Stout, in delivering the opinion of the supreme court of the United States, in the case of Children v. Emery, 8 Wheat. 471, uses the following language: “If the defendant would have objected to the letters testamentary of the plaintiff, he should have craved oyer so as to have brought them before the court.

Unless oyer be craved and granted, they cannot be judicially examined.” Under the laws of this Territory, the proper practice would be to crave oyer of the letters of the administration, and then plead in abatement.

The fifth error assigned, “that the court erred in permitting the plaintiff to read in evidence to the jury the order on which he sought to recover, after his testimony was closed, and while the defendant below was introducing his testimony,” does not seem to have any force in it. The record shows that the order had been introduced before the court and jury at the proper time, and admitted to have been executed by defendant. The reading of it to the jury, having been neglected for the moment, there was no error in the court allowing it to be read before the testimony closed.

The sixth error assigned refers to the following charge of the court, in answer to a point presented: “The same strictness is not required in this case in presenting this order, and in giving notice of the non-payment, as is required in commercial transactions; but the order must be presented in a reasonable time, and notice of nonacceptance or non-payment must be given in a reasonable time, and that the jury must judge from all the circumstances of the case what was a reasonable time; and also, that if there was any agreement between the parties as to the time in which the order should be presented, or notice of non-payment or non-acceptance given, it would take the case out of the ordinary rules in relation to these subjects, and it must conform to the agreement of the parties. ’5 Whether the instrument sued on was a foreign bill of exchange which required to be protested, etc., it is not necessary to decide, as there was evidence before the jury on the subject of the presentment and notice, which must control the action of the parties and their legal rights. Under these circumstances, we cannot admit that there is error in this part of the charge.

The seventh error assigned, to wit, “that the court erred in refusing to instruct the jury that when the drawer of a bill of exchange or order for money resides in a different State from the drawee, the law requires that notice of non-acceptance be given, and protest shall be made before the drawer shall be charged with such order or bill,” is disposed of in the disposition made of the sixth error assigned. The agreement of the parties must regulate their conduct and control their rights in this particular; and even without such agreement, there is nothing on the record to show that there was proof made in the canse ■ that the drawer and drawee lived at the time of the negotiation of this order, in different States, and consequently there was no error in the court refusing to answer as prayed for. It is not error in a court to refuse an answer to a proposition not based upon evidence in the cause.

The eighth error assigned, “that the court erred in the charge to the jury in relation to admissions of the defendants,” merely deserves a passing notice. There is no point better settled than that declarations and admissions, made by one party to another while mutually engaged in effecting a compromise of their difficulties, cannot be given in evidence.

Upon the whole, the court is unanimously of opinion that the judgment of the district court be affirmed.


source: Caselaw Access Project

author: Irvin, J.

license: Public Domain

text:
    Murdock vs. Arndt.
    Indorser and indorsee—Bona eide holder.—An indorsee of a bill or note, taking it under a parol agreement not to charge bis immediate indorser, cannot recover against such indorser, though the indorsement be unqualified; but such agreement would be no defense against a subsequent dona fide indorsee or holder without notice thereof.
    ERROR to the District Court for Brown County.
    Assumpsit brought by Murdoch against Arndt to recover against Mm as indorser of a promissory note for seven hundred dollars, made by Jones, Clark & Co. to Arndt or order on demand, and by him indorsed to S. W. Murdock, who indorsed the same to the plaintiff. The defendant pleaded the general issue.
    At the trial, after the plaintiff had rested his case, the defendant called David Jones as a witness, and offered to prove that Arndt sold the note to B. W. Murdoch on the responsibility of Jones, Clark & Co., the makers. This offer was objected to, but the court overruled the objection, and the witness was permitted to testify that, in June or July, 1839, B. W. Murdoch was at Green Bay; that the note had been put into the hands of witness for the purpose of passing it off for flour ; that he offered to let the said B. W. Murdoch have the note if he was satisfied that Jones, Clark & Co. were good; that said Murdoch said he was satisfied that they were good, and that he would take the note; that Arndt had to indorse it, and it was the understanding between B. W. Murdoch and Arndt that he was to take the note on the responsibility of the makers, and not of the indorser, and that he then told Murdoch that payment of the note had been demanded.
    This evidence was objected to by the plaintiff, and he asked the court to reject it on the ground that parol evidence could not be received to show the intention of the defendant when he indorsed the note, and no such parol agreement could affect the plaintiff, who was an innocent holder of the note by indorsement from B. W. Murdoch ; but the court ruled that the evidence was competent.
    The court instructed the jury that, if the indorsement of the note by Arndt was in pursuance of an agreement that he should not be. responsible, then he was not liable thereon; that B. W. Murdoch, the immediate indorsee of Arndt and all persons claiming under him, were bound by the conditions upon which Arndt parted with the note; that if they believed that the note was indorsed by Arndt after it was due, for the purpose of transferring his interest in it, pursuant to an agreement with the person to whom it was so indorsed, that the makers alone were to be responsible to him, and not the indorser, then the plaintiff could not recover, even though he was the indorsee of such person. The jury found for the defendant, and judgment was rendered accordingly.

      Martin & Eastman, for plaintiff in error.
    1. Arndt is bound by Ms indorsement, notwithstanding any parol agreement. Byles on Bills, 10, 87, 112; 3 Campb. 57; 3 Wils. 275; 1 Taunt, 347 ; 4 id. 856; 5 East. 10; 2 Atk. 383; 4 East. 57; Chitty On Bills, 62 and note; id. 175, and cases there cited. 2. That payment of the note had been demanded is immaterial as to the plaintiff who had no notice of that fact. 3. If the note was dishonored before indorsement, then the signature of Arndt is an absolute guarantee on his part that the note should be paid. 4. Parol evidence of the transaction between Arndt and Murdoch was inadmissible, unless knowledge of the facts was traced to the plaintiff.

      O. Q. P. Arndt, for defendant in error.
   Irvin, J.

On the trial of this cause the court charged the jury that the agreement made between John P. Arndt and his indorsee respecting his liability was obligatory upon his immediate indorsee, and all persons claiming under him. If the plaintiff in this case be a bona fide holder for a valuable consideration from the immediate indorsee of defendant, without notice of that agreement (which was a fact for the jury to determine), then the court erred. This the court by its charge took from the jury, and the judgment should be reversed.

There was no error in permitting David Jones to testify as a witness to prove the alleged agreement of the defendant and Ms immediate indorsee.

It is therefore unanimously considered and adjudged, that the judgment of the district court be reversed, with costs, and that the same be certified to said district court, to be further proceeded in, according to law and justice.


text:
    Mills vs. The United States.
    1. Evidence—husband and wife.—It is a well-settled rule of law that husband and wife cannot be witnesses for or against each other. Exception: a wife may be a witness against her husband in case of personal violence to her, from the necessity of the case.

    2. Proof of marriage. — The testimony of witnesses present at a marriage supper is admissible to show a marriage in fact.

    EEEOE to the District Court for Iowa County.
    The plaintiff in error was indicted and tried for adultery. The prosecution, in order to prove the marriage of the accused, was allowed, against her objection, to prove by several witnesses that, on the occasion of the alleged marriage, there was a wedding supper, at which they were present; and, against the objection of the accused, her husband was allowed to be sworn and testify that they were lawfully married.

      Hoses H. Strong, for plaintiff in error.

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

The counsel for the defendant here urge for error in the proceedings of said district court:

1st. The court erred in overruling the motion for a new trial.

2d. The court erred in overruling the motion in arrest of judgment.

3d. The court erred in allowing Alonzo D. Mills (the husband of the plaintiff in error) to be sworn and examined as a witness against her upon the trial of the cause.

4th. The ■ court erred in allowing the evidence of witnesses, that they were present at the marriage supper, upon the occasion of her alleged marriage, for the purpose of proving a marriage in fact between her and her husband.

In the argument of this case by the counsel for the plaintiff in error, the first and second objections were abandoned, and the third and fourth were mainly insisted upon.

As a general principle of law, nothing is more clearly established than that husband and wife cannot be witnesses for or against each other. 1 Black. Com. 443; also, note 46 to same page; 2 Hawk. P. C. 600, ch. 46, § 478; 2 Kent’s Com. 178, 180; Rex v. Cleoger, 2 Term, 263; 4 id. 679; and many other authorities cited in the ai’gument of this case. To this general principle there are exceptions, and one is that a wife may be a witness against her husband in cases of personal violence to her, and that from necessity.

A great variety of reasons are given by different jurists why husband and wife should not testify for or against each other,- and, perhaps, all good. Tilg-hmaw, Ch. J., in Snyder v. Snyder, 6 Binney, 483, says: “A husband thus circumstanced is an incompetent witness; not because of interest, but because of the policy of the law, which excludes husband and wife from testifying when the rights of either are concerned. Much of the happiness of society depends upon the intimacy of husband and wife. The law considers them as one, and will not suffer this union to be broken, or even put to hazard, by testifying against each other.” Is there any reason why this case should form an exception to a principle so well established % It seems that there is not; and why % Because the fact here sought to be proved by the husband, to wit, the marriage of himself and the accused or plaintiff in error, was so important that without it the prosecution must fail, and his wife, though once accused, would then stand acquitted before the world ; but suffer or compel him to testify, and indelible disgrace may be fixed upon his family, and he be made the subject of the deepest mortification which a sensitive being can endure. In this Territory, as in many other governments, adultery is a cause for divorce; and if. a husband, called upon to prove the marriage of his wife when indicted for that offense, should testify to that fact, his evidence, together with the evidence of her cohabitation with another, would produce a verdict of guilty, which he might immediately use as evidence in a proceeding to obtain a divorce. Is a policy so fraught with mischief to those delicate relations of society to be established? Surely not. We can see no difference upon principle in a husband testifying to the fact of his marriage to his wife, in a case of adultery and bigamy, as in neither case does he testify to her infamy, but he does to the fact which must be proved before she can be convicted of the offense. Upon this point, however, the authorities cited are so full that we are forced to the conclusion that the district court erred in allowing Alonzo D. Mills (the husband of the. plaintiff in error) to be sworn to give evidence before the jury on the trial below.

We do not think that the district court erred in permitting witnesses to be sworn to prove that they were present at the marriage supper of the plaintiff in error, and therefore overrule the fourth objection.

It is therefore considered by the court that the judgment of the district court be and the sanie is hereby reversed, and that this case be and the same is hereby remanded to the said district court, that such further proceedings may be had-therein as to law may appertain.

Dunn, Ch. J., dissented.


author: Irvin, J".

text:
    Arndt vs. Allard.
    1. Plea in abatement. — It is error to reject a plea in abatement because it is inartificially drawn. The plea should be received and the plaintiff left to his demurrer.
    2. Judgment. — It is error to overrule such plea, and thereupon pronounce judgment in the action, as the defendant is entitled to an opportunity to plead over.
    ERROR to the District Court for Brown County.
    The case is stated in the opinion of the court.

      Morgan L. Martin, for plaintiff in error.
   Irvin, J".

This case came up from the district court of Brown county upon error in the judgment of said court, pronounced at the October term of that court for 1837; and the errors assigned are:

“1st. The court erred in this, that the judgment was rendered for the plaintiff below, when it should have been rendered for the defendant below; because there was no declaration; because there was no replication to the plea in abatement; because the plea in abatement ought to have been sustained; because the court had no right to render judgment on motion without requiring the defendant to plead over.” We learn, during the progress of this case here, from the member of this court who presides in the third judicial district, of which the county of Brown is a part, that by a rule of court in force at the date of the rendition of said judgment, as established by the judge who then presided, a statement of the cause of action was substituted for a declaration. Whether that rule was wise or unwise we need not now stop to inquire, but being a rule of practice we must respect it, and thereupon overrule the objection to the want of a declaration.

The next objection is, “ because there was no replication to the plea in abatement;” and another, next in succession, ‘ ‘ because the plea in abatement ought to have been sustained.” In the consideration of these objections we must reverse this order and consider the last first, in the course of which, it becomes necessary to inquire what is meant by the objection when it is said that “the plea in abatement ought to have been sustained.” In examining the transcript of the record of proceedings below, it appears that the defendant, by his counsel, asked leave of the court, and offered to file a plea in abatement, which was refused. Upon what ground the court below refused to receive the plea, whether because it was inartificially drawn, or was considered on its merits and overruled, as upon demurrer, we know not; but if for the first, to refuse to receive it was error, since it should have been received and the plaintiff left to his demurrer; if for the last, it was again error for the court to overrule it and pronounce judgment without giving the defendant an opportunity to plead over.

It is therefore considered that the district court erred for the reasons stated, and that the judgment therein given be reversed with costs, and that this cause be and the same is hereby remanded to the said district court, that such further proceedings may be had therein as to law and justice may appertain.


author: Miller, J.

text:
    Lask vs. The United States.
    1.Elector—detention. —A person who has resided sis months in this Territory, with the hona fide intention of becoming a citizen, although he may have a family residing elsewhere and keeping house, is a legal juror and an elector under the statute requiring sis months’ residence in the Territory with the hona fide intention of becoming a citizen. The intention of a person to become a citizen must be ascertained from all'his acts in connection with his residence.
    2.Title to oeeioe. — The validity of the title of the district attorney to his office cannot be brought in question and determined on a motion to quash an indictment. His right to such office can be determined only by quo warranto.

    3.Grand jury. — If any one of the grand jury, which passed upon an indictment, was not a legal grand juror, the accused has a right to have the indictment quashed.
    ERROR to the District Court for Rock County.

      The case is stated in the opinion of the court.

      H. N. Wells, for plaintiff in error.

      I). Brigham, for defendant in error.
   Miller, J.

This case came before the court on an agreed statement of facts which had been presented to the district court of Rock county, at a term in October, 1839, in behalf of the defendant, to sustain a motion to quash an indictment pending against him in said court. The facts are as follows:

I. David Burnet, one of the grand jurors who found the bill, had been living in the Territory for more than six months .previous to the commencement of this term of the court, but previous to the first day of August last his wife and family were residing and keeping house in the State of Ohio, and on the said first day of August last he moved his family to this county, and has since resided here.

2. That Daniel F. Kimball is now, and was at the time of receiving his appointment as district attorney for the county of Rock, a postmaster, duly commissioned by the postmaster-general of the United States, and acting as such at Janesville, in said county of Rock, and that said Kimball was present, aiding, assisting and advising the grand jury at and during the investigation and finding of said indictment.

There is no doubt but that if the juror in question is not a legal juror of the county of Rock, this indictment should have been quashed. The defendant has a right to have the indictment quashed if any one of the grand jurymen that passed upon it is not a legal juror. When called upon to answer, it is the first opportunity allowed in many instances to examine the qualifications of the grand jurors. It is true that persons charged may, by our statutes, challenge grand jurors before they are sworn, but it frequently occurs that a person is presented by the grand jury, and the first intimation he has of it is a jjrocess in the hands of an officer. In 1 Chitty’s (Trim. Law it is said to be clear that a defendant, before issue joined, may plead the objection to a grand juror in avoidance, but if he take no such exception before his trial, it seems doubtful how far he can take advantage of it. The questions raised in this case are, was David Burnet a legal juror? was Daniel F. Kimball legally authorized to appear before the grand jury as the district attorney ?

The question of the competency of the jucor depends upon the construction given to an act of assembly upon this subject. E. S. 267. The act concerning grand and petit jurors, section 1, provides that all persons who are qualified to vote for delegate to congress shall be liable to be drawn as jurors. The 12th section of the act to provide for and regulate general elections (E. S. 38) provides that no person shall be entitled to vote at any election in this Territory who has not attained the age of twenty-one years, who is not a free white male citizen, or a foreigner duly naturalized according to the act of congress on that subject, and who has not resided within this Territory, with the bona fide intention of becoming a citizen, for at least six months immediately previous to his application to vote. What constitutes a residence within this Territory with the bona fide intention of becoming a citizen ? This law was made in a young Territory to suit the circumstances and situation of the people, and with a view to render the right of suffrage as favorable to the immigrants as possible, and we have to construe the law upon the same principle. The act seems to create a distinction between a resident and a citizen. In Webster and Walker’s Dictionaries the verb ‘ ‘ reside ’ ’ means to live, to dwell, to be present. It is well known that many persons come into the Territory, purchase land and make improvements (which, no doubt, was the case with this juror) before their families arrive. They come in advance of their families to prepare a place for their abode. At the time of the passage of this act and before, it would have been impossible to obtain jurors in many counties if persons situated as this juror was could not have been called. We are disposed to construe this act that the residence of a married man, contemplated by this act, does not depend upon that of his family, and that his intention to become a citizen must be ascertained from all his acts in connection with his residence. In this case there could have been no doubt of the juror’s intention to become a citizen, for he had aptually brought his family into this Territory, and has continued to reside therein. It is certain that a man cannot be a citizen of two States at the same time, but that question is not to operate against the manifest intention of the legislature. That question would properly come up on an objection to the vote of this juror in Ohio. All that we have to inquire into is, was the juror a resident in the Territory for six months, with a bona fide intention of becoming a citizen thereof % If the law is wrong, it rests with the legislature to correct it.

The second question is clear of all difficulty. Under the organic law of the Territory, “ no person holding a commission under the United States, or any of its officers, except as a militia officer, shall be a member of the said council, or hold any office under the government of said Territory.” The question could not be raised in this case which office the said Daniel F. Kim-ball rightfully held. The court could not step aside from the issue in the case and try his right to prosecute. He should be brought up in the way known to the law, or on application for a writ of quo warranto, where he could be heard. His holding the commission of district attorney at the time was sufficient to enable him to appear before the grand jury, and neither they nor the court could stop to inquire how many offices he held. It was sufficient that he held the commission of district attorney from competent authority, and as long as his commission remained without being superseded or vacated, the validity of his acts cannot be questioned. 11 Viner’s Ab. 114; 7 Johns. 549; 5 Wend. 231; 9 Johns. 135; 15 Mass. 170; 1 Penn. 297.

We therefore affirm the decision of the district court in refusing to quash this indictment, and order that the same be certified to the district court.


author: Dunn, C. J.

text:
    Dousman vs. The President and Trustees of the Town of Milwaukee.
    1. Corporation — change in name op. — If the name of a corporation be changed, it must sue or be sued, in respect to its prior rights and liabilities, by its new name.
    2. Consolidation op. —The town of West Milwaukee was incorporated in 1837; in 1839 the towns of East Milwaukee and West Milwaukee were united under the name of the town of Milwaukee: Held, that the town of Milwaukee, thus created, succeeded to all the rights and liabilities of the former town of West Milwaukee.
    EEEOE to the District Court of Milwaukee County:
    The case is stated in the opinion of the court.

      II. W. Wells, for plaintiffs in error.

      J. B. Arnold, for defendant in error.
   Dunn, C. J.

This was an appeal from the judgment of a justice of the peace of Milwaukee county to the district court of said county, where the case came on to be tried anew. The action was on the case for consequential damages claimed by the plaintiff, Dousman, against the said President, etc., defendants, for negligence in navigating the Milwaukee river, by which the scow-boat of the plaintiff was injured. The case was submitted to the district court upon the following statement of facts, to wit:

The town of Milwaukee on the west side of the river was incorporated and became a body corporate and politic in 1837.

In the winter of 1838 and 1839, the two towns of East and West Milwaukee were united, and the old corporation dissolved.

The cause of action on which this suit is brought arose while the town of Milwaukee on the west side of the river existed as a separate corporation, but suit was not commenced until after the dissolution. Service was made upon the trustees of the town aforesaid who were trustees at the time of the dissolution.

Defendants object to the service, and also say that the suit should have been brought against the corporation by its present name.

On this statement of facts, the district court decided that the suit was not well brought, and that the service on the persons who were trustees of the corporation at the time of its dissolution was not good, and to reverse this judgment, this writ of error is prosecuted.

There is really but one point in this case : Was the suit properly brought? Whether the service be good or bad in law, depends upon the decision of this question. The statement of facts submitted to the district court establishes that the town of Milwaukee, on the west side of the river, was incorporated and became a body politic in 1837 ; that, in the winter of 1838' and ’9, the towns of East and West Milwaukee were united, and the old corporation dissolved; that the cause of action arose while the town of Milwaukee on the west side of the river existed as a separate corporation, and that suit was not brought until after the dissolution.

It has been decided that a corporation accepting a new charter, the new corporation is the same as the old. 3 Burr, 1869, 1870, and it has been held by Lord Mansfield, “that when the question has arisen on any remarkable metamorphosis, it has always been determined that it remains the same as to debts and rights.

In Mayor, Aldermen and Burgesses v. Butler, 3 Lev. 238, an action was brought by the old corporation by this their new name, for a debt which had been originally due to the old corporation in the name of Bailiffs. Judgment was given for the plaintiffs, and at the end it was said that' no doubt was made of the debt due to the first corporation remaining due to the new, after the name was changed by letters patent.

If the corporation could sue by the new name for rights of the old, it may legally be sued in the same name for liabilities of the old, because the right to sue in a particular name subjects the same name to suit co-extensively with the right to sue.

It is well settled that a corporation is a mere creature of the act creating it, cannot exist without it, and must, in all its actions, be governed by its provisions. 2 Cranch, 127. The old corporation having been dissolved, and revived only under a new name, or merged in a new corporation, can it sue or be sued by any other than the new name given to it % Certainly, from the authorities referred to and the soundest principles of reason,' it cannot. The 5th section of the act of 11th March, 1839, sustains the idea that the legislature never intended that the old corporation should retain any such power, or be subject to any such liability. It provides that all the books, papers, etc., of the old corporation be delivered over to the clerk and treasurer appointed under the new corporation, after which the power and duties of the former clerk and treasurer ceased. Here, not only' the means of pursuing and recovering their rights, but of properly defending themselves against suits, are taken from them and transferred to officers of the new corporation, plainly indicating that by and in the name of the new corporation they were to prosecute and defend suits when occasion required. Their rights, remedies and liabilities remain with them, to be sued for and recovered or defended by and in the name of the hew corporation.

Under this view, the service specified in the statement of facts was bad. Without giving any opinion or direction as to the proper mode of prosecuting a suit in this case to final judgment and execution (as the point is not before the court), the court consider and adjudge that the judgment of the district court be affirmed with costs, and that the same be certified to said court.


author: Milled, J. Dunn, C. J.,

text:
    Doty vs. Strong.
    1. Privilege from arrest. — The privilege from arrest guaranteed by the constitution to members of congress extends as well to delegates from the Territories as to senators and representatives from the States.
    2. The privilege is not only a privilege from arrest, but also from trial.
    ERROR to the District Court for the County of Iowa. This was an action brought b y-Moses M. Strong, plaintiff below, against James D. Doty, impleaded with David Jones and Alexander Irwin, to recover certain damages alleged to have been sustained by said plaintiff by reason of the non-performance of a certain contract alleged to have been made with the said defendants, Doty, Jones and Irwin, as directors of the Pox River Transportation Company, to convey and transport in Durham boats certain goods and merchandise of the said plaintiff Strong, from Green Bay to the Wisconsin Portage. The defendants, against whom a joint liability was alleged in the plaintiff’s declaration, all resided in the county of Brown. Process was served upon only one of the defendants, to wit, James D. Doty, in the county of Iowa.^ Application was made by defendant Doty to the district court for the county of Iowa, before whom the cause was tried, for a change of venue to the county of Brown, where it was said all of the defendants resided, and the cause of action, if any, arose. This application was overruled. The defendant’s counsel then filed an affidavit for. a continuance of the cause to the next term of the district court, on the grounds that the defendant Doty was at that time, and had been for some months previously, necessarily absent on public business, as delegate in congress for the Territory of Wisconsin; that, in consequence of such absence, his attorneys had been unable to prepare his cause for trial at that term of the court; that the said defendant Doty had, as the affiant verily believed, a good defense upon the merits ; that there was no separate and individual liability on the part of said Doty; that the witnesses to establish such defense resided in the town of Green Bay and county of Brown; but their names, in consequence of said defendant’s absence, the defendant’ s counsel had not been able to ascertain, and, consequently, could not procure their attendance at the trial; and that a trial at that term would be the means of great injustice being done to the said defendant Doty.

    This application for a continuance was likewise overruled.
    The cause was then tried, and a special verdict was rendered against one of the said defendants, to wit, the said James D. Doty, impleaded with David Jones and Alexander Irwin.
    The said Doty, the plaintiff in error, assigns the following errors:
    1st. The court erred in denying the application for a change of venue to the county of Brown, where all the defendants resided, and where the cause of action, if any, arose.

      2d. The court erred in overruling the application for a continuance of the trial to the next term of the court, while the said defendant was necessarily absent on public business as delegate in congress from the Territory of Wisconsin, and therefore was not bound to appear and answer, and when defendant’s counsel had not an opportunity, by reason of the absence of said defendant on such public business, of preparing his cause for trial.
    3d. Where the plaintiff in his declaration alleges a joint liability against several defendants who are impleaded together, it is error to return a special verdict against one of the defendants, as was the case in this instance, but the verdict should be a general one against all the defendants.

      M. M. Jaclcson, for plaintiff in error.

      M. M. Strong and id J. Dunn, for defendant in error.
   Milled, J.

Three errors have been assigned by the plaintiff in error on which he asks this court to reverse the judgment against him in the district court of Iowa county.

1. The court erred in refusing a change of venue.

2. The court erred in overruling the motion to continue the trial of the cause made on behalf of Doty, the defendant, on the ground that he was at the time a delegate in congress from this Territory, and then absent at Washington in his attendance upon Congress, then in session.

3. The court erred in entering judgment against the defendant alone, while two other persons were included in the writ as defendants, but not served, the,, statute requiring judgment to be recorded against all the defendants named in the writ, whether served with process or not.

As the case is to be remanded to the district court, and as there has been lately enacted by our legislature a law authorizing a change of venue in this Territory, it is unnecessary to decide this question. Similar- reasons to those embraced in the application in this case are included in the law lately enacted and now in force, and a new application can be made to the judge if desired. This disposes of the first assignment of error.

On the third error it is considered not necessary to adjudicate at this time, it being probably a subject of correction, if necessary, on the record in the district court.

The cause turns upon the second error assigned. An application for a continuance is generally addressed to the discretion of the court, and is not probably the subject of a writ of error in this Territory. But of this we give no positive opinion. This case is decided exclusively on the question of privilege. When the cause was called in the district court for trial, Doty, by his counsel (he being the only defendant who was served with process and had pleaded to the action), presented an affidavit to the court setting forth in substance the facts contained in the assignment of error. In this he pleaded his privilege, informally, but substantially, which was ■ overruled by the court. The defendant relied upon the” 6th section of the 1st article of the constitution of the United States, which, in speaking of the senators and representatives in congress, contains the foEowing language : They shaE, in aE cases except treason, felony and breach of the peace, be privEeged from arrest during their attendance at the session of their respective houses, and in going to or returning from the same.” The reason of this provision is obvious. The people elect their representatives to congress to protect their rights and advance their interests, which should not be jeoparded by the arrest of their representative for debt or private contract of his own, and it is equaEy necessary that his rights and interests should be protected while absent in the public service.

In order to render this provision available to the extent of its necessity, it wiE not do to construe the words privilege from arrest in a confined or literal sense. A liberal construction, must be given to these words upon ■^principle and reason. It is just as necessary for the protection of the rights of the people that their repre- | sentative should be relieved from absenting himself from his public duties during the session of congress, for the ' purpose of defending his private suits in court, as to be ; exempt from imprisonment on execution. If the people ; elect an indebted person to represent them, this construction of the constitution must also be made to protect his rights and interests, although it may operate to the prejudice of his creditors; but the claims of the people upon his personal attendance are paramount to those of individuals, and they must submit. We have only been able to find one authority on this subject, after a careful search. It is a decision of the supreme court of Pennsylvania, in the case of Geyer's Lessee v. Irwin, 4 Dall. 96. That decision was made upon the same provision in the constitution of that State, and couched in the same language as that under consideration. The court in that case declared that ‘ ‘ a member of the general assembly is, undoubtedly, privileged from arrest, summons, certiorari or other civil process, during his attendance on the public business confided to him, and that, upon principle, his suits cannot be forced to a trial and decision while the session of the legislature continues.”

It was urged in the argument that this provision did mot apply to this case, as the defendant is only a delegate /from a Territory, and not a member from a State. ¥e do not think so. He is entitled to a seat on the floor of the house as the representative of the people of the Territory, elected with all the powers, rights and privileges of a member from a State, except the power to vote. With this exception he is a member of the house of representatives, and entitled to the same constitutional privileges.

It is the opinion of the majority of the court (his honor, Chief Justice Dunn, dissenting), that the judgment in this case be and the same is hereby reversed, with costs, and that the same be certified to the district court of Iowa county, to be further proceeded in as to justice and right may appertain.

Dunn, C. J.,

dissenting. In dissenting from the opinion delivered in this case by their honors, Judge Irvin and Judge Miller, I shall, as a member of this court, briefly state the grounds of dissent, which are the same that influenced the decision of the district court, on the point which has been decided by this court to be error.

It has already been stated that there were three errors assigned in this case. Two of these this court has not deemed it necessary to decide upon. The other is, that the district court erred in overruling the motion to continue the trial of the cause, made on behalf of Doty, the defendant, on the ground that he was at the time a delegate in congress from this Territory, and then absent at Washington, in his attendance as such upon congress, then in session.

In considering this ground of error, I shall notice those points which present themselves on the face of the assignment. First. Can the decision of a court upon a motion for a continuance, addressed to the discretion of the court, to be exercised upon a review of all the circumstances of the case, be error, and reversable in this court ? The weight of authorities certainly answers this question in the negative, and the opinion of this court in this case intimates as much. Is the plaintiff in error entitled to the privilege said to be set up by him in this case ? It is admitted that a delegate is entitled to the same privileges as a member of congress, as to arrest, under the 6th section of the 1st article of the constitution of the United States ; and, further, if the plaintiff in error had set up the privilege at a proper time, and in a proper manner, the district court should have allowed it. It appears, from the records in this case, that the suit was commenced in the district court, declaration filed, summons issued and personal service on Doty made on the 25th day of June, 1839 ; that Doty, the defendant in the suit, appeared by his attorney at the September term of the district court thereafter, and pleaded the general issue. The said Doty was then duly notified and in court from 25th June, 1839, to 22d April, 1840; and between those dates, at the September term, 1839, appeared and pleaded by his attorney.

It does not appear from the same record that any diligence was used, by issuing subpoenas for witnesses, or in any other way, to prepare the case for trial. After plea and issne from the September term to the first Monday of December following (the day of meeting of congress), Doty had free intercourse with his counsel and time to prepare for defense. It is true that he was absent in congress at the April term, 1840, and the statement in the affidavit for continuance, “that on account of such absence at that time his attorneys could not learn the names of his witnesses and have them cited to attend the court at the trial,” does not answer fully the facts in the record. Although it is true that at the time referred to he was absent, and for that reason his attorneys could not then procure from him the names of his witnesses, his negligence in the interviú between notice and the meeting of congress, during which interval he had employed counsel, and they had pleaded for him and made up am issue, is not accounted for, and he cannot set up constructively his privilege at so late a period to excuse such palpable negligence. It would be permitting him to neglect at the proper time that which he was bound by law to do, and postpone his preparation until a period should arrive when he might claim his privilege, and thereby take advantage of his own wrong to the prejudice of the person prosecuting a claim against him.

On the last point, has Doty set up at all in proper manner his privilege % He has not. In the affidavit for continuance one of his attorneys assigns as a reason why they could not learn the names of his witnesses, “that he was at the time of making the affidavit absent in attendance in congress as delegate.” It may be collected from this that he was a delegate and absent, and for that reason his attorneys could not learn the names of his witnesses at that time. Is this setting up and claiming a privilege, as contemplated in the Pennsylvania case referred to, or in any other adjudicated case, in point ? Certainly not. It will not be contended that he could not, if he had a privilege, waive it. The court is not bound to set it up for him. He should have done it at a proper time and in a proper manner, so that the plaintiff might have traversed the fact of his being in a situation to obtain the privilege; and this could be done in two ways, first, by denying that he was delegate, and second, if a delegate, by denying he was then on duty in congress, or employed in going to or returning from congress, and if either point had been found for the plaintiff, the claim of privilege would and properly should have been overruled. These are the reasons which influence me to dissent from the opinion of the court in this case.


author: Irvin, J. Dunn, C. J.,

text:
    Hunter vs. The United States.
    1. Adultery is the sin of incontinence between persons, one or both of whom are married.
    2. If both are married it is double adultery, or adultery on the part of both. If but one of them is married it is single adultery, and the •mwrried party alone is guilty of that offense; criminal intercourse between a married woman and an unmarried man is not adultery on the part of the man, but the woman is thereby guilty of that offense.
    EEEOE to the District Court for Iowa Couuty.
    The case is stated in the opinion of the court.

      T. P. Burnett, for plaintiff in error.

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

In the above entitled cause the grand jury in and for the county of Iowa, at the April term of the district court for said county for 1839, found a bill of indictment against Hunter for adultery. He appeared and filed a general demurrer, which was by the court overruled and the defendant adjudged guilty as charged in the indictment; whereupon, for the purpose of transmitting this cause to this court for a decision upon alleged error therein, it was agreed that final judgment should not then be pronounced.

The court here is given to understand by the parties that the ground of objection argued on demurrer was that the indictment did not charge the defendant to have been a married man, while the contrary is admitted, but did charge that he committed adultery with one Elizabeth Mills, lawful wife of Alonzo D. Mills.

The only point for the consideration of the court is, “could the defendant, Hugh R. Hunter, who is acknowleged to be a single man, commit the offense of adultery ?” The indictment in this case was found under the 9th section of the act for the punishment of crimes (Michigan Laws, 446), by which section the punishment for adultery is prescribed, but the offense not defined, making it necessary to resort to other sources for that information.

Jacobs, in his Law Dictionary, in defining adultery says : “Adultery, adulteriam quasi adulterius .thoram. In 1 Hen. VII and in divers old authors termed admwtry, the sin of incontinence between two married persons, or if but one of the persons be married, it is nevertheless adultery; but in this case it is called single adultery to distinguish it from the other, which is double.”

Here it becomes necessary, in order to fix the meaning of the latter part of his definition, to determine what he meant by single adultery. He places it in contradistinction to double, in which both are married, and it would seem in every just interpretation of the language to mean that the married party to single adultery must be the one guilty of that offense.

By reference to Respublica v. Roberts, 1 Yeates’ (Pa.) 6, and 2 Dall. 124, it will be seen that in the courts in Pennsylvania a case precisely in point was decided, the statute of that State, like the one under which this indictment was found, prescribing the punishment, but not defining the offense, of adultery. This is the first available report of an American decision we have been able to obtain, and is, from its long standing and correctness of decision, considered conclusive.

The language as reported in Dallas is in relation to the adultery: “The court, after consideration, delivered an unanimous opinion that, under the act of assembly and the uniform practice of eighty-five years (a practice which, though it does not make the law, must be strong evidence of what the law is), the indictment for adultery could not be supported.” The court is unanimously of opinion that the court below erred in overruling the demurrer, and that its decision thereon be reversed.

Dunn, C. J.,

in concurring in the opinion, said that he felt it due to himself, as the cause was tried before him in the court below, to make a statement of his opinion, to explain any seeming inconsistency in his own decisions, and stated that the plaintiff in error, Hunter, was indicted for adultery at the September term, 1838, of the Iowa county district court, to which indictment the same objection was taken that is now made in this court, and, upon argument, the district court sustained the objection and quashed the indictment.

At the April term, 1839, a second indictment was preferred against Hunter for the same offense, and, although he had never changed his opinion upon the question of law involved in the case, in order to give the district attorney an opportunity of having it decided by this court, and the principle finally settled, the court below overruled the demurrer and requested that the cause should be brought up on error. In pursuance of this suggestion, and by agreement of counsel, the cause had been presented in its present form before this court. He entirely agreed with the opinion of the court, just delivered by Judge Irvin, and stated that he had never doubted as to the law upon the point that had been submitted for decision.


text:
    Judson vs. Hindman and others.
    Supreme court — certiorari.— The act of the 8th December, 1836, concerning the supreme and district courts, and defining their juris diction and powers, did not confer jurisdiction. upon the supreme court to review proceedings of justices of the peace by certiorwri.

    The case is stated in the opinion of the court.

      M J. Hunger, for plaintiff in error.

      T. P. Burnett, for defendant in error.
   Miller, J.

This certiorari was allowed on the 22d day of February, 1838, and was taken out in pursuance and according to the direction of the act of Michigan, which may be found on pages 202 and 203 of the Michigan statutes, which gave to the supreme court jurisdiction in cases of certiorari. On the 20th April, 1836, an act was passed by congress to organize the Territory of Wisconsin, the 9th section of which provides, “that the judicial power of the said Territory shall be vested in a supreme court, district courts, probate courts and in justices of the peace, and the jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace shall be as limited by law.” The first legislature that convened in and for this Territory, at Belmont, enacted a law on the 8th December, 1836, entitled “An act concerning the supreme and district courts, and defining their jurisdiction and powers.” This act was evidently passed in pursuance of the organic law. The first section provides, “that the supreme "court of the Territory stall have and exercise an appellate jurisdiction only, which shall extend to all matters of appeal, error or complaint from the judgment or decrees of any of the district courts, in all matters of law and equity wherein the rules of law or principles of equity appear from the records or exhibits of such courts to have been erroneously adjudged or determined.” By taking this in connection with the third section of said act, it manifestly appears that the legislature of this Territory did not extend the jurisdiction of this court to the removal of proceedings of j ustices of the peace here by certiorari ; and as no provision has been made by the legislature for the direct removal of causes to this court, from the docket of a justice of the peace, by certiorari or in any other way, this court must forbear passing judgment on the errors assigned, and must dismiss the proceedings. The certiorari is therefore dismissed.


text:
    Mayhew and another vs. Dudley.
    1. Attachment — Under the statute (Wis. Stat. 1839,165), “ if any creditor, his agent or attorney, mates oath, in writing, before any proper officer, that his debtor has absconded as he verily believes,” such creditor is thereupon entitled to a writ of attachment; the affidavit being made according to the statute, there is no discretion left to the officer, but the right of the creditor to the writ is absolute.
    2. Affidavit and indoesement—If the affidavit set forth either of the other causes mentioned in the statute for the writ, the person mating it must satisfy the officer before whom the oath is taken of the truth of the cause stated; and such officer must indorse upon such affidavit his satisfaction of the truth of the facts therein stated, before the writ can be issued.
    3. Same—The affidavit for a writ of attachment, under this statute, is not traversable (Dunn, C. J., dissenting)-, but the legal sufficiency of the steps taken to procure the writ is a matter for adjudication by the court.

      4. Same—Any officer authorized to administer oaths generally, is a proper officer within the meaning of the statute, before whom the affidavit may be made. Miller, J., dissenting.

    ERROR to the District Court for Milwaukee County.
    The case is stated in the opinion of the court.

      Wells, Grocker & Finch, for plaintiff in error.

      John II. Tweedy, for defendant in error.
   Irvin, J.

This case came up on error to the decision of the district court of Milwaukee county, made and pronounced at the June term thereof, A. D. 1840.

The case is as follows: Jonathan Mayhew and Thomas J. Dudley, on the 27th day of May last, sued out of the clerk’s office of said county a writ of attachment against the lands, tenements, goods, etc., of William M. May-hew, upon the affidavit of said Thomas J. Dudley, stating “that one William M. Mayhew is justly indebted to Jonathan Mayhew and Thomas J. Dudley in the sum of $6,800 and upward; and further, that said William M. Mayhew is about fraudulently to dispose of his property and effects, so as to hinder and delay his said creditors, and further saith not,” which affidavit was filed on the same day. At the following term of the district court (as above stated), the defendant appeared and moved the court to quash said writ of attachment, and for the following reasons, viz. : for that the affidavit on which said writ was issued is insufficient in form and substance, that the facts stated therein to be true, are false; and for other irregularities in the issuing and service of said writ.

The first objection is, that the affidavit is not true: And the second is, that it is insufficient. The court overruled the first, and quashed the attachment upon the ground that the clerk of the district court, before whom the affidavit was made, was not the proper officer before whom to make said oath, and that he did not indorse that he was satisfied. Although the court here concur with the court below in that part of the reason for quashing the writ of attachment, it is, nevertheless, done for other and different reasons, in part, and they will best be shown by noticing the objections in their order.

By the law making provision for creditors to proceed against their debtors by attachment (Statutes of Wisconsin, 165), it is enacted that “if any creditor, his agent or attorney, shall make oath in writing, before any proper officer, that his debtor has absconded as he verily believes,” he shall have a writ of attachment. Under this oath there is no discretion left to any officer about the right to said process, the oath made, his right is absolute, but not so with the balance of the statute, which is as follows: “or shall satisfy such officer that such debtor is about to abscond to the injury of his creditors, or that such debtor is not a resident of this Territory, or that he so conceals himself as to avoid the service of process, or that such debtor is about to remove his property or effects out of the Territory, or is about fraudulently to remove, convey, or dispose of the same, so as to hinder or delay his creditors, and shall file the same with the clerk of the district court, such clerk shall issue a writ of attachment,” etc. And, if any clerk shall issue such writ without oath filed as aforesaid, such writ shall be quashed at his cost. The oath made herein is in one of the subsequent alternatives of the statute, that is, that he, the debtor, was about fraudulently to convey his property, etc., but of the truth of which he had to satisfy the officer before whom he made the oath, before he could regularly obtain a writ. Did he so satisfy said officer % And, if he did, where is the evidence of that satisfaction ? We answer nowhere, and, if it nowhere appears, could the clerk properly and legally issue said writ % We again say no, for the satisfaction of the officer before whom the oath is made is an indispensable pre-requisite, and that can regularly appear in no other way, than by his own indorsement of the fact, that he is satisfied of the truth of the statement of the deponent. In this case, the officer has made no snch statement, but has only administered the oath to the deponent, and makes no intimation of his satisfaction of its truth. Por that reason, then, we think the writ should have been quashed.

It is the opinion of a majority of the court (Chief Justice Duinsr dissenting), that the truth or falsity of the affidavit is not traversable in the district court, but at the same time that they so decide they unanimously decide that the legal sufficiency of the steps taken to procure such writ is a matter for the adjudication of the court.

The court here cannot concur with the court below in the opinion that the clerk of the district court is not a proper officer before whom the oath may be made, and must, therefore, overrule that part of his decision, believing, as we do (his honor Judge Milder dissenting), that any officer authorized to administer oaths generally is & proper officer within the meaning of the statute.

It is, therefore, considered and adjudged that the judgment of said district court in quashing said writ of attachment and dismissing all proceedings thereon be and the same is hereby affirmed, with costs, and that the same be certified to said district court to be proceeded thereon according to the law.


text:
    McKnight vs. The President and Trustees of the Town of Mineral Point.
    1. Corporate existence when to be proved.— In a suit by a corporation upon a note executed to itself by its corporate name, it is incumbent on such corporation, under a plea of the general issue, to establish its legal existence as a corporation competent to sue.
    3. Admission oe.— But if the defendant in such suit, in a notice of set-off, state a claim against such corporation in its corporate character, for services rendered said corporation as one of its officers, it is an admission of the existence of such corporation and its competency to sue, and the plaintiff is relieved from mating proof thereof.
    ERROR to the District Court for Iowa County.
    The case is stated in the opinion of the court.

      Moses M. Strong, for plaintiff in error.

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

This suit was brought in the district court of Iowa county, on a note signed and delivered by Thomas Me Knight, the plaintiff in error, to “The President and Trustees of the town of Mineral Point! The defendant in the court below pleaded the general issue, and filed notice of set-off against the plaintiff for services rendered for said corporation as its president and one of its trustees. The question was raised in the court below whether on an instrument of this kind, in which the defendant promised to pay the said corporation (using its corporate name) a sum of money, the plaintiff was bound under the pleadings in the cause to exhibit proof of its legal existence as a corporation. The court charged the jury that it was not so required; and the defendant in the court below sued out this writ of error on the judgment entered against him.

A corporation is a creature of the law, and can only claim the writs and protection of the court by virtue of the powers and privileges granted in its charter. Under the general issue, the plaintiff would have been required to produce testimony to make out its legal existence as a corporation competent to sue, before this note in question could have been read in evidence. Angell and Ames on Corp. 377; 1 Kyd on Corp. 292; 8 Johns. 378; 14 id. 245, 411; 2 Cowen, 778; 8 Wend. 454. But in this case enough was put on the record by the defendant himself to satisfy the court and jury of this fact. The defendant filed of record in the suit, an account against the plaintiff for services rendered for said corporation as one of its officers. The defendant in law declared upon the record that he sued the said corporation in its corporate name for services rendered by him as one of the officers of the very corporation. By this he is estopped from denying the existence of the corporation, or putting its existence in issue. The case of Henriques v. The Dutch West India Company, 2 Ld. Raym. 1535, presents a case something similar. In that case the company obtained a judgment against Henriques, and a scire facias was issued against his bail in the suit upon their recognizance. The counsel pleaded that the defendants were estopped by their recognizance to say there was no such company after a judgment against their principal, and the judgment was affirmed. Taking the charge of the court delivered on the evidence received under the pleadings, we see no error.

Thereupon it is ordered, decreed and adjudged, that the judgment of the district court of Iowa county be and the same is hereby affirmed, with costs and damages, at the rate of seven per centum per annum, and direct that the same be certified to the said court to be carried into execution.


text:
    Ward and others vs. Price.
    1. Arrest oe judgment. — The plaintiffs declaration will be held sufficient after verdict, if it is good in substance.
    2. Former recovery—parol evidence.—Parol evidence is admissible to show that items contained in the defendant’s notice of set-off, are the same contained in a bill of particulars filed by him as plaintiff in a former action between the same parties, and that the same were adjudicated in that action.
    EEEOE to the District Court for Grcmt County.
    The case is stated in the opinion of the court.

      F. J. Duerm, for plaintiffs in error.

      Moses M. Strong, for defendant in error.
   Irvin, J.

This cause came up on error to the judgment of the district court of Grant county, at the September term thereof, for the year 1838. In this case the assignment of error is of the general insufficiency of the declaration; but, upon examination, it is proved, to be substantially correct, which, after verdict, is sufficient. Upon further examination of the case, however, it appears that a bill of exceptions, taken and filed, to the opinion of the court below, present two distinct points of error, and which were relied on in the argument of the counsel for the plaintiffs in error. That part of the bill of exceptions which presents the first point of error is in the following words, viz. : “Be it remembered that on the trial of this case, and after the plaintiff had closed his evidence, he having proved that if there was any indebtedness on the part of the defendants, or either, it was a joint indebtedness on the part of the defendants, as copartners; the defendant, Garret V. Denniston, by his counsel, moved the court to instruct the jury to find for the defendants, as of a nonsuit, on the ground that only one of the defendants, viz., Ga/rret V. Denniston, had been served with process; but the court refused so to instruct, and would not order a nonsuit.”

There is no objection that all of the copartners were not sued, bnt that process, issued against all, has been served on one only. If it were an objection at common law to take judgment against that one, it was none under the statutes of the Territory, which, by the 7th and 8th sections, page 348, of the Laws of Michigan, Revision of 1833, make provision for taking judgment against one or more of several defendants on whom process may have been served. By that law, when the sheriff returned the process as served on some, and not found as to others, the plaintiff, by suggesting such return in his declaration, could proceed to judgment against those on whom service had been made; and the only inquiry here is, did the plaintiff bring himself, by his declaration, within those provisions ? It is true that he did not, in his declaration, make such suggestion ; but that difficulty is removed by the rules of practice in that court, which were, among other things, that the plaintiff might file his declaration with the precipe, if he chose so to do, and thereupon rule the defendants to plead on a day certain; and when the declaration was thus filed, and the sheriff, or other officer, made return of service as to part, and not found as to others of the defendants, the suggestion was considered as sufficiently made to authorize a proceeding to judgment against those thus in court. This is stated by one of the members of the court to have been the rule of practice there, and by others to have been the rule in other districts. The court then did not err in refusing the instructions asked for, and therefore that part of the exceptions is overruled.

The exceptions proceed : “ Whereupon the defendant, having filed a notice of offset, offered to prove the several items contained in their bill of particulars accompanying their notice of set-off; but the counsel for the plaintiff offered to prove, by witnesses in court, that the items contained in the defendants’ bill of particulars were the same items that were contained in a bill of particulars filed by the said John Ward, Arthur Bronson, Isaac Bronson, Liocius Lyon, and Garret V. Denniston, in a suit tried at a previous day of this term in their favor, against the said Glendower M. Brice. The counsel for the defendant objected to such proof, but it was admitted by the court, and the court decided upon that proof so admitted, that the defendant could not offer evidence to the jury under his said bill of particulars,” etc.

If this bill of particulars had, in a previous suit between the same parties, been adjudicated upon, and entered into the consideration of the jury, then it would have been highly improper to have made it a part of a subsequent suit; and, if attempted by the defendant, it would have been competent for the plaintiff to have shown, by witnesses or otherwise, that it so formed a part of a previous suit, and was submitted to the jury, and, upon showing that fact, to have had it rejected ; and we are bound here to infer that because the plaintiffs did offer to prove as it is stated, by witnesses, that the items were the same that formed the bill of particulars in a previous suit of that term of the court, and the counsel for defendant objected to such proof, but the court did admit it, and the court, after it was admitted, decided that the defendant could not offer to the jury that bill of particulars ; we say, that the court are bound to infer that it had formed a part of the previous suit, and was adjudicated upon, and was therefore correctly rejected by the district court. That part of the objection is also overruled. It is therefore considered and adjudged by the court, that the judgment of the said district court be affirmed, with costs, and interest thereon at the rate of seven per centum per annum, and that the same be certified to said district court, that it may carry the same into execution,


text:
    Bushee vs. Wright.
    1. Practice—reading documents, etc.— When, a written, instrument declared on is admitted or satisfactorily proved, it is legally before tbe court and jury, and may be read at any time, or it need not be read audibly at all.
    2. Variance—general verdict.—If tbe instrument declared on does not support a particular count of tbe declaration, it is no ground for reversing tbe judgment or for a new trial, if there be a count wbicb sucb instrument does support; as if tbe verdict be general, tbe court will intend tbe finding to be upon sucb count as tbe evidence supports.
    3. Disclosure oe verdict.— When by consent of parties a jury is sent out witb instructions to make up a sealed verdict and witb permission thereupon to separate, it is no cause for a new trial, or for setting aside tbe verdict, that it was promulgated by tbe jury before it was received in court.

      4. Remitting damages.— An excess of damages may be remitted by tbe party recovering, after a motion for a new trial upon that ground, and even in tbe supreme court after a writ of error is brought.
    ERROR to the District Court for Grant County.
    The case is stated in the opinion of the court.

      Moses M. ■ Strong, for plaintiff in error.

      F. J. Bunn, for defendant in error.
   Dunn, C. J.

This plaintiff, Wright, brought his action of assumpsit on a promissory note against defendant Bushee, one of the makers, in the district court of Grant county, and at the last March term of said court the cause came on to be tried, and was tried by a jury who returned a verdict in favor of plaintiff, and thereupon a judgment was rendered. Bushee, the defendant, brought the cause into this court by writ of error. The errors assigned and embraced in the bill of exceptions in the cause are:

I. The court erred in permitting the note sued on to be read as evidence to the jury after the evidence on the part of the plaintiff and defendant was closed:

1st. Because it did not support the last count in the declaration which describes a note payable on the 25th December, 1837, whereas the note offered is payable on the 25th December, 1838.

2d. Because the plaintiff, Wright, could not legally read it to the jury at that stage of the proceedings.

II. There was no consideration for the note.

III. The court erred in overruling the motion for a new trial:

1st. Because the note did not support the last count and the verdict being general, the court could not render judgment on it.

2d. The jury promulgated their verdict before it was read, and the court refused to receive evidence to prove it.

3d. The amount of damages was excessive.

The court will dispose of the errors assigned in the order in which they stand. “That the district court erred in permitting the note sued on to be read in evidence to the jury, after the evidence on the part of plaintiff and defendant was closed,” is not made apparent to this court by the reasons assigned or any other. After the instrument declared on is admitted or proved satisfactorily, it is before the jury as matter of evidence, and it never has been a question 'even, that any particular point of time before the jury received the whole case was the proper time for counsel to read the instrument. Indeed it is not material that the note be audibly read to the jury at all. The instrument is legally before the court and jury as evidence, and may be used as such at any time before verdict. That the note did not support the last count in the declaration is a demurrable reason. It supported other counts, and so the jury determined. It will scarcely be contended that if a declaration contain several consistent counts, and the evidence adduced support any one of them, the jury may not return a verdict for the plaintiff. And if the verdict be general, the court will intend the finding to have been upon the count or counts sustained by the evidence.

The court scarcely know how to treat the second error assigned, “ That there was no consideration for the note.” On a motion for a new trial this ground may be properly taken to show that the finding of the jury was without sufficient evidence, the consideration having been put in question on the trial. But, as a separate and distinct ground of error in the decision of the court, it cannot be considered. It was an inquiry for the jury on testimony and the court could, in no wise, decide upon it, except on a motion for a new trial, when the evidence is brought in review.

The third assignment of error is, that the court erred in overruling the motion for a new trial.

1st. Because the note did not support the last count in the declaration, and the verdict being general the court could not render judgment upon it.

2d. Because the jury promulgated their verdict before it was read, and the court refused to receive evidence to prove it, and,

3d. Because the amount of damages was excessive.

The first ground of error under this assignment has already been disposed of, in the opinion of the court, on the first error relied on by plaintiff.

The second is new and has no precedent in the books. The instances are very frequent in civil cases,' where courts have directed the jury after finding to seal up their verdict and deliver it to an officer of the court named, after which they were permitted to separate, and meet the court when sitting to hear and affirm the verdict. This is done without any express consent of parties or their counsel; no objection being interposed, the consent is implied. In this case the record shows that express consent of the counsel for the parties was given to this course, and the court so ordered. The record shows further that, after agreeing to and sealing up their verdict, the jury returned into court where their sealed verdict was opened and read to them, and they pronounced it to be their verdict. The objection that the jury promulgated their verdict after they had agreed to, sealed up and delivered the same to the sheriff (under a rule of court, made by consent of parties), but before it was read in court, seems entirely new, and without any reason or rule in law to support it. The fact of the jury having returned into court and assented (unanimously) to the verdict, relieves their conduct from the imputation of such culpable irregularity as would have authorized the court to set aside their verdict, and award a new trial. Juries have been sent out under a rule similar to the one .in this case, and, after agreeing to and sealing up their verdict, upon reading it in court, one of the jury has disagreed. The court in such case has directed the jury to retire again and consult, and, upon their returning into court the same verdict, the court refused to set it aside for irregularity or misconduct. Graham’s New Trials, 80 to 115.

That a jury should retire and consult privately upon matters submitted to them to try, is a rule founded in the best reasons, and these are mainly that they may deliberate calmly without distraction, and freely without the influence of parties or their friends, upon the matters submitted to them to be tried upon the evidence adduced. But after agreement, signing, sealing up, and delivering their verdict to an officer of the court, under a rule of the same court, the reasons for secrecy and privacy cease, and the court know of no rule of law that forbids a juror to speak of the verdict. It is the safer and better practice, however, and one which will prevent captious objections, for juries to refrain from speaking of their verdict until published through the records of the courts.

The other ground assumed in the motion for new trial, “that the damages are excessive,” cannot be sustained, because the plaintiff in the district court remitted the excess, and at once effected the object of the motion for a new trial on that ground. And the objection that it is too late to remit after a motion for a new trial has no point, and is not sustained by any rule governing legal proceedings in such matters. This court would now be authorized to permit the remittitur and affirm the judgment for the balance with costs to plaintiff in error. This is going much beyond the time prescribed in the plaintiff’s objection on this ground. 6 Rob. Pr. 643; 4 Grah. New Trials, 408, 446; Bull. N. P. 327. Before disposing finally of this case, it may be proper here to advert to one of the grounds relied on for a new trial. The failure of consideration. This was a legitimate subject of inquiry by the jury, and the record shows that they did decide it upon the testimony adduced in favor of Wright, the plaintiff below. On the motion for a new trial it became the duty of the district court to review the testimony, and, if it were apparent that the jury upon that point found against evidence, then their verdict should have been set aside and a new trial awarded. This court, to determine whether or not the district court erred in refusing the new trial on this ground, must be governed by the facts proven on trial and contained in the bill of exceptions. These facts fully establish the opinion that the district court exercised a sound legal discretion in overruling the motion for a new trial. It does not appear that the district court erred on any of the grounds objected in the bill of exceptions herein.

The judgment of the district court is, therefore, affirmed, with costs, and interest at the rate of seven per centum per annum, and ordered that the same be certified to said court, to be carried into execution.


author: Dunk, C. J.

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    Dunbar vs. Breese.
    1. Indorser — witness. — An indorser of a promissory note is not a competent witness on a trial between the indorsee and the maker, to prove that the note was void, on account of a failure or illegality of the consideration.
    2. Bills oe exchange, etc. — After having given currency to negotiable paper, a party to it will not be permitted to invalidate or impair it as a security, nor to change the liabilities of the parties respectively, contrary to the tenor and form of the paper and its indorsements, to the prejudice of a subsequent holder.
    ERROR to the District Court for Milwaukee County.

      Breese brought an action of assumpsit in the Milwaukee district court against Dunbar, upon a negotiable promissory note, executed by Dunbar to one James Sanderson, and indorsed by Sanderson to Breese. On the trial, Dunbar offered Sanderson as a witness to prove that the consideration of the note upon which the suit was brought was fraudulent bank notes, which were of no value; that the note was an accommodation note, given in fact to Breese himself, who paid said fraudulent bank notes for it, and that it was void in its inception. The plaintiff objected to the competency of Sanderson as a witness; which objection was sustained, and the witness excluded by the court below. A verdict and judgment were rendered in favor of the plaintiff; to reverse which the defendant below prosecuted a writ of error.

      J. E. Arnold, for plaintiff in error.

      II. N. Wells, for defendant in error.
   Dunk, C. J.

This case is brought into this court by writ of error to the judgment of the district court of Milwaukee county, at the June term, 1841. The suit in the district court was brought by Josiah S. Breese, defendant in error and plaintiff below, against Sylvester W. Dunbar, plaintiff in error and defendant below, on a promissory note, given by Dunbar to one James Sander-son, and by him indorsed to the plaintiff, Breese.

On the trial, the defendant, Dunbar, offered Sanderson, the indorser, as a witness to show the consideration of the note, and that it was void in its inception, who was rejected by the court. Exception is taken to this opinion, and the question in this court is, did the district court err in rejecting Sanderson as an incompetent witness ?

In Walton v. Shelly, 2 Term Rep. (opinion by Lord Mansfield), the court decided, that although, on the ground of direct interest in the result of a suit by the indorsee against the maker, the indorser of a note might be a witness, yet upon the ground of public policy he was incompetent and should not be admitted. And tbi,q was the rule -of decision for many years in England, until in Jordaine v. Lashbrooke, 7 Term Rep. 601, Lord Kenyon delivered the opinion of the court, reversing the doctrine in Walton v. Shelly, for the reason that a higher public policy authorized a different rule. What this paramount policy was, is not satisfactorily stated by the learned judge. The law, as settled in Jordaine v. Lashbrooke, is the rule of decision in England. In this country the decisions are conflicting. In New York, in Winton v. Laidler, 3 Johnson’s Cases, 185, the rule in Walton v. Shelly was adopted. Some years after, the rule was reversed, and the doctrine of Jordaine v. Lashbrooke adopted. But the rule, that a party to a negotiable instrument shall not be permitted to impeach it, is fully adopted in New Hampshire, Massachusetts, Pennsylvania, and, it would seem, in Virginia and South Carolina. See Houghton v. Page, 1 N. H. 60; Warren v. Merry, 3 Mass. 27; Parker v. Lovejoy, id. 365; Churchill v. Suter, 4 id. 156; Barker v. Prentiss, 6 id. 430; Jones v. Coolidge, 7 id. 199; Manning v. Wheatland, 10 id. 506; Hartford Bank v. Barry, 17 id. 94; Packard v. Richardson, id. 122; Knight v. Putnam, 3 Pick. 184; Stills v. Lynch, 2 Dall. 194; Respublica v. Ross, id. 242; Shaw v. Wallis, 2 Yeates, 17; Hepburn v. Cassell, 6 Serg. & Rawle, 113; Bank of Montgomery v. Walker, 9 id. 229; Wilson v. Lennox, 1 Cranch, 194-202, n.

The true, meaning of the rule in Walton v. Shelly is that a party, after having given currency to negotiable paper, shall not be permitted to invalidate it, nor to impair it as a security, nor to change the liabilities of the parties respectively, contrary to the tenor and form of the paper and the indorsements thereon, to the prejudice of the holder. A party to such an instrument is not admitted to testify to facts which may show that the plaintiff is not such a holder as is protected, so as to let in his testimony afterward to invalidate the note. Gest v. Espy, 2 Watts, 265.

The weight of authorities, strengthened by the soundest reasoning, seems to sustain, fully, the true meaning of the rule in Walton v. Shelly; and this court is of opinion that the decision and judgment of the district court of Milwaukee county, rejecting Sanderson, the indorser, as an incompetent witness, be affirmed, with costs, in favor of Breese, the defendant in error and plaintiff below.


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    Kensler vs. Brunett.
    1. The statute prescribing the manner of taking appeals from the judgments of justices of the peace does not require that the appellant shall pay any portion of the costs, except the justice’s fees, before taking his appeal.
    2. Where an appeal from a justice of the peace has been taken, and no recognizance or a defective one entered into, it cannot avail the appellant to offer to file a sufficient recognizance in the district court; the statute must be complied with by actually filing such recognizance and paying costs before the motion to dismiss is disposed of, or the appeal must be dismissed.
    ERROR to the District Court for Brown County.
    This cause was originally, commenced by Brunett against Kensler, before a justice of the peace for Brown county, and was removed by a change of venue before another justice previous to the trial. Brunett obtained a judgment before the justice, from which Kensler appealed to the Brown county district court. The district court dismissed the appeal upon motion (for reasons which appear in the opinion), and the plaintiff in error, who was defendant below, prosecuted a writ of error to reverse the judgment of the district court dismissing his appeal.

      T. W. Sutherland, for plaintiff in error.
   Irvin, J.

This cause came up by writ of error to the decision of the district court of Brown county, pronounced at the May term, 1841, on a bill of exceptions taken thereto and made a part of the record.

The cause originated before a justice of the peace, J. Ú. Knapp, and was afterward, upon a change of venue, tried before Thomas Lee, another justice, when a jury was demanded and had, who gave a verdict in favor of the plaintiff for eight dollars. It appears that the defendant then paid the following fees, to wit:

J. G-. Knapp’s fees,.....87&

Thos. Lee, fees,.....3 00

Sheriff Williams, fees, - - - - 1 25

Jury fees,......3 00

(Not so marked, but we presume the figures stand for dollars and cents.) But the fees of the witnesses were not paid, and after the payment of the fees as above stated, defendant gave notice of and took an appeal to the district court.

At the October term of said court, 1840, Peter Brunett, the plaintiff below, by his attorney, filed a motion to dismiss the appeal for the following reasons, to wit:

“1st. That the fees of the court below, or justice’s fees, were not paid before the appeal was taken.
“2d. That there is no bail bond to be found among the papers returned to this court.”

It appears the said Kensler “ offered to come into court and perfect said bond, which was not done.” The said Kensler also offered to the court the receipt of Thomas Lee, the justice who tried the cause below, for all the fees of the witnesses sworn in the case, dated May 26, 1841, which- was not received by the court. The court then sustained the motion to 'dismiss the appeal, “on the •ground that the costs were not all first paid, and no reeognizance was given as required by law, and exceptions were noted.”

The errors assigned tó said decisions are:

1st. That the court erred in dismissing the appeal of Charles Kensler, on the ground that all the costs of said suit had not been paid.

2d. That the court erred in dismissing the appeal, on the ground that no recognizance or bail bond had been filed, as the party was ready, and so informed the court, to perfect his bond in any manner the court might direct.

By the 9th article, Revised Statutes, 332, upon the subject of appeals from a judgment of a justice of the peace, it is in the 2d section provided that “ no appeal shall be allowed in any case unless the following requisites be complied with:

“1st. The appeal must be made within six days after the judgment is rendered.
“2d. The applicant, or some person for him, together with one' or more sureties, to be approved by the justice, must, within the time prescribed in the first clause of this section, enter into a recognizance before the justice, etc.
“ 3d. The fees of the justice shall be first paid by such applicant.”

By the 12th section it is provided that “no appeal allowed by a justice shall be dismissed on account of there being no recognizance, or that the recognizance given is defective, if the appellant will, before motion to dismiss is determined, enter before the district court, into such recognizance as he ought to have entered into before the allowance of the appeal, and pay all costs that shall be incurred by reason of such default or omission.”

This court is of opinion that nothing more is intended by the provision of the law, that “the fees of the justice shall be first paid by such applicant,” than that the fees of the justice only, and not those of the witnesses or others, shall be paid; for, had the legislature intended to have embraced all the costs before the justice, it would have been proper to have so expressed it. The district court, therefore, erred in dismissing the appeal upon that ground, as it appears that the fees of the justice had been properly paid.

The court is further of opinion that the district court did not err in dismissing the appeal for want of a recognizance, for, although the law allows the appellant to come into court before the motion to dismiss’ for want of, or for a defective, recognizance is determined, and enter into such recognizance as he ought to have entered into before the allowance of the appeal, yet, in case the-, party only offered to come into court and do it, such an offer is not a compliance with the requisitions of the law. There is a great difference between the offer to come into court to do an act, and the actual coming in and doing it. The time allowed by law is before the motion to dismiss is determined, and there is no complaint that the conrt urged the decision with improper haste. The court is, therefore, of opinion that the decision of the district court be affirmed with costs.