author: Irvin, J. Miller, J.,

text:
    Oakley and another vs. Hibbard.
    Assignment for benefit of creditors—when mat be revoked. Where a party who was not in failing circumstances, or unable to pay bis debts, made an assignment of certain property to a trustee, to sell tbe same and pay off certain of bis debts in a particular order, and tbe trustee entered upon tbe execution of tbe trust, and after paying off part of tbe debts, SM, that tbe assignor might lawfully revoke tbe assignment, and sell tbe remainder of tbe property to tbe assignee, as against any of tbe creditors who bad not been paid, and who bad no notice of such assignment. Miller, J., dissenting. Otherwise, if such creditors bad done any thing by which they signified their acceptance of its provisions.

      APPEAL from the District Court for Milwaukee County.

      Jesse Oakley and Hezeldah B. Loomis filed their bill in equity against William B. Hibbard, which he answered, and the complainants put in a general replication. The cause was heard upon bill, answer and replication and exhibits, no proofs being produced. The district court decreed that the defendant pay to the complainants $706.15, with interest from February 16, 1846, with costs of suit, from which decree he'appealed. The substance of the bill, answer and exhibits is stated in the opinion of the court, but more fully in the dissenting opinion of Judge Milleb.

      Randall & Ogden, for appellees.

      Levi Hubbell, for appellant.
   Irvin, J.

This cause comes up from the county of Milwaukee, on an appeal from the final decree of the district court, made in favor of the complainants in February last, when it was heard upon bill and answer.

By the bill of the complainants, it appears that “ one Bostwick O’Connor, then doing business as a merchant at Troy, in the county of Walworth, executed and delivered to Hugh L. Smith and J. Clark Smith his certain promissory note, bearing date on that day, and thereby promised to pay $600, with interest from the date of said note, to them, the said Hugh and J. Clark Smith, by the name of Smith and Brother, or to their order, at the office of the Wisconsin Fire and Marine Insurance Company, at Milwaukee, eighteen months after the date of said note,” “and the said Smith and Brother afterward, and before the said note became due, indorsed and delivered the same to the complainants; that the said O’ Connor, on the 1st of March, 1844, made an assignment of his merchandise, notes, etc., to William B. Hibbard, the defendant, for the purpose of paying off the debts therein mentioned and in the order directed, and that the said Hibbard took upon himself the execution of the trust, and, after paying off a part of the debts of the said O’ Connor, he became the purchaser of the balance of the trust fund, from said O’Connor, leaving the debt due to the complainants unpaid. The defendant, by his answer, which is considered responsive to the bill, admits the creation of the trust, and that he entered upon the execution of it, took into his possession the effects mentioned therein, and that after paying a part of the debts (those of preference), the said O’Connor revoked the assignment and sold to him the remainder of the property, notes, etc., that were so assigned. The answer also states that the complainants never had notice of the assignment; nor does it appear (whether they had notice or not) that they ever took any steps to signify their acceptance of the trust and the provisions therein contained. It is nowhere alleged that O’Connor was then in failing circumstances, or was then,, or at any time since, unable to pay all of his debts. The assignment appears to have been entirely voluntary on the part of O’Connor, and without consideration on the part of Hibbard, and must be construed, under such circumstances, to be a mode or convenience adopted by O’Connor for the settlement and winding up of his business. It is a principle well enough established, that if the creditors of O’ Connor who were included in the assignment had done any thing by which they Signified their acceptance of the provisions of the assignment, Hibbard would .have been liable to them ; but, as it is asserted by Hibbard, that no notice of the assignment was ever given to them (and it not otherwise apj>earing to the court), the only question for the court to decide is, whether O’Connor could revoke the assignment, and thereby discharge Hibbard from it; for, if he could, then, when it was revoked, Hibbard could as well purchase from him as any other person could. That he could revoke the assignment abundantly appears from the following authorities: Story’s Eq., § 1036, p. 358; § 972, last clause; § 1045, p. 379; Williams v. Everett, 14 East, 582; Tiernan v. Jackson, 5 Pet. 580; and, when we take into consideration the fact that, by the terms of the assignment, Hibbard was to account to O’Connor for the trust fund, the case remains without a doubt. A majority of the court are therefore of the opinion that the complainant is not entitled to the relief sought, and that his bill must be dismissed with costs.

Miller, J.,

dissenting. By the bill in this case it appears that in August, 1843, Bostwick O’Connor, then a merchant, executed and delivered to Hugh L. Smith and J. Clark Smith, his promissory note of same date for $600, with interest, and before said note became due they indorsed it to the complainants, the present holders thereof. That in March, 1844, the said O’Connor, then doing business as a merchant, and being in possession of a large quantity of goods and a large amount of choses inaction, in all exceeding in amount $3,000, by a deed of assignment assigned and set over to defendant, all the said goods and choses in action, particularly set forth in an inventory thereto attached. That said assignment was made by said O’Connor in trust, for thepupose of securing the payment of certain debts due from said O’Connor and therein particularly set forth and described. That said Hibbard did not, at the time, pay or contract to pay to said O’Connor, any consideration for said goods and accounts, except promising to account with him for the balance that might remain after the payment of the said debts. That the aforesaid note was mentioned and described in said assignment, and the payment thereof was thereby provided for, after the other debts therein mentioned, amounting to $732, should have been paid. That said Hibbard immediately entered upon the execution of said trust and executed and delivered to said O’ Connor his bond in the penalty of $3,000, conditioned well and truly to obey or cause to be obeyed the instructions contained in said assignment; and took the said goods, etc., into his possession and commenced selling said goods and collecting the said debts. And the bill further charges that the defendant has collected the greater portion of the debts so assigned and has sold and received pay for the whole or a large portion of the same goods, etc., and has received more than enough to pay both the debts mentioned in said deed before complainants, amounting to $733, and this note.

The bill further charges that defendant refuses to pay said note, and as an excuse for such refusal, pretends that he has settled with said O’ Connor and taken up his said bond, and paid him in full for the said goods, etc., which complainants contend he had no right to do.

The bill then calls upon the defendant to answer all and singular the allegations in said bill of complaint and particularly to set out the said assignment with the invoice and inventory delivered to him, and to give a copy of his said bond, etc., and that on the final hearing said defendant may be decreed to render a full and true account of all moneys received from him, etc., and to pay said complainants what, upon said account, may remain after the payment of the said debts of $733, until the debt of complainants be fully paid, and if sufficient is not sold and collected, to decree that he shall proceed to sell and collect the same and apply the proceeds to said debt, etc., and such further relief as shall be agreeable to equity, etc. The bill is not sworn to.

The defendant by his answer under oath, admits that the note was executed and delivered by said O’Connor to Smiths and he has been informed that said note was indorsed to complainants. He also admits that about the 1st of March, 1844, O’Connor was doing business as a merchant, and that he then, by a certain instrument under his hand and seal, assigned and set over to defendant all his right, title and interest of, in and to all sums of money then due, or to become due in a certain schedule therein mentioned (which is lost or mislaid), and also of a certain store of goods, fixtures and furniture; but denies that they were particularly set down in an invoice or that any such was made out. And the said defendant admits, that at the time of the said assignment the goods, etc., together with the accounts, etc., were considered to be of the value of $2,700. And the defendant says that the said assignment was made in trust for the purpose of securing the payment of certain debts then due and to become due and owing by said O’Connor and particularly mentioned and described in said deed, and that no other consideration passed for the promise on the part of defendant to account to said O’ Connor for the avails of said goods, etc., when sold at their invoice prices, unless they should not all be sold before the maturity of the said last named note described in said instrument; in which case the goods so remaining on hand should be held in trust subject to the order of the creditors of said O’Connor.

The answer admits that the said note mentioned and described in the bill was one of the debts for which payment thereof was duly provided after the other debts, amounting to $732, due to various individuals, all of which were duly scheduled in the said deed, etc., and admits the making and delivering said assignment. Defendant executed and delivered to O’Connor a bond in the penalty of $3,000, conditioned for the true and faithful performance of all the instructions mentioned and contained in said deed and immediately thereafter entered upon the execution of his said trust, in the manner and form set forth in the bill. The defendant denies that he has collected the whole or a great portion of said notes, etc., or has sold and received pay for the whole or a greater portion of said goods so assigned to him or more than enough to pay the said debts of $732 preceding the note of complainants.

And the said defendant answering states that the stock of goods so assigned was a poor and refuse lot, and a large portion of said notes, etc., were worthless, and that in order to make sale of said goods he was under the necessity of purchasing a large quantity of other goods more salable, for the purpose of making a market for said goods, etc.'

And the defendant saith, that immediately after he had commenced selling said goods and collecting said notes, etc., and long before he had been able to realize enough to pay off the amount of debts preceding this debt, he proceeded to pay off such preferred debts and has since paid the whole amount thereof.

And the defendant says that at the time of the said assignment, the said debts of $732 were the only debts due; and that said assignment was made voluntarily, and in good faith for the purpose mentioned therein. That he believes and so charges the truth to be that none of said creditors were parties or privies to said assignment, or had notice thereof, at the time or since, until after said assignment had been revoked and canceled, but were entirely ignorant of the same, save the creditors for the said $732.

And the said defendant says: that about the 1st of October, 1844, said O’Connor proposed to him to revoke said assignment and sell to him the entire stock of said goods, notes, etc., before assigned, and accordingly a bargain was made and defendant purchased the same for the sum of $2,000, which was the full value thereof; and that he paid to said O’Connor the sum of $1,200, in cash and goods, and $800 in debts owing by said O’Connor, including the said $732. That at said sale no inventory was taken, nor has he kept a separate and distinct account of the quantity of goods sold nor the amount of money received therefor, nor is he able to state what amount of debts was collected, nor what quantity of cash remains on hand ; hence he has no data by which to render a true account, etc.

And the defendant submits and insists that he is not liable to complainants in the capacity of trustee, etc., and that by said deed he was only liable to account to said O’ Connor—that said assignment was voluntary and revocable at the pleasure of the assignor, and has been revoked, and lie is no longer a trustee but a purchaser for a valuable consideration, and no way liable to complainants.

Copies of the deed of assignment and bond are annexed to the answer, and the name of J. Clark Smith appears as a witness to the said deed.

The plaintiff filed a general replication.

The parties went to trial upon the bill, answer and replication.

The questions presented are:

1. Whether this assignment does not vest a legal title in the assignee—and whether the trustee could purchase from the debtor and hold the fund adversely to the creditors ?

2. Whether the part of the answer alleging the purchase is not new matter in avoidance, which should be proven ?

3. Whether the other creditors andBostwick O’Connor should not be parties %

It is not necessary to the validity of a deed of assignment for the benefit of creditors that the creditors should be consulted.

The creditors need not be parties to the assignment. It is enough if the assignment be assented to by the assignee, unless the creditors repudiate it. If the creditors have notice of the trust in their favor, and they assent to it, it will be sufficient to pass the estate to the assignee for their use; and being for their benefit, their assent is presumed until the contrary is shown. Such assignments as this take effect from their execution, and when creditors are not parties to the instrument, they may take the benefit of the trust by notice to the trustee within a reasonable time, and before a distribution is made of the property. Brashear v. West. 7 Pet. 608; Marbury v. Brooks, 7 Wheat. 556; id. 11; id. 78; Nicholl & Vandewater v. Mumford, 4 Johns. Ch. 529; Sheperd v. McEvers et al., id. 136; Nicholl & Vandewater v. Mumford, id. 522; 2 id. 307; Wheeler v. Sumner, 4 Mason, 183; Halsey v. Fairbank & Whitney, id. 2106; 8 Leigh, 272.

The debts were a sufficient consideration for the assignment. 7 Wheat. 58; 11 id. 78; Halsey v. Fairbank & Whitney, 4 Mason, 206.

It is not necessary to determine whether this assignment was revocable before notice to the creditors or at any time, as it appears to me that the answer of the defendant puts this question out of the case. He acknowledges that he accepted the trust, by taking possession of the assigned property, to the amount of about $2,700; that he gave his bond, according to the terms of the deed, for the faithful execution of the trust; that he paid all the debts preceding the debt in suit, and he then bought from the assignee the remainder of the assigned property, after he had mixed the goods, etc., with new goods purchased by himself, and never had an inventory of the assigned goods. And it appears that the name of one of the payees and indorsers of this note is subscribed to the deed and bond as a witness—who would be particularly interested in the transaction; and if he then held the note, had direct notice, and if he had then indorsed it, he had notice as such indorser, who, no doubt, would give information of the transaction to the present plaintiffs. In addition to the legal presumption of notice to these plaintiffs, this circumstance tends to strengthen that presumption. When creditors are not parties to the instrument, they may take the benefit of the trust by notice to the trustee within a reasonable time, and before a distribution is made of the property. The trustee, after he accepted the trust, was bound to give notice to all the eestuis que trust of any matter touching the trust property, and should have kept the trust property distinct from his own. The defendant was bound by the deed and his bond to execute the trust honestly and faithfully. It will not do to permit a trustee to take possession of the trust fund, with or without inventory or schedule, upon giving his bond; and after making sale of a portion of the estate, paying part of the debts, and then return to the debtor or assignor the residue of the estate, without the consent of the unpaid creditors. Nor can he purchase the trust estate himself, at his own sale, or from the assignee, without the consent of the creditors. He can do no act to prejudice the cestuis que trust, or acquire an interest in the trust estate adverse to theirs, but especially in equity, must he make good the trust. The trustee after entering’ upon the duty and discharging part of the debts out of the trust estate, cannot throw it up, but is as much bound to execute it as an executor. And wheré a trustee has accepted the trust, creditors for whose benefit an assignment is made by a debtor, are entitled to claim under it without becoming parties to it, or signifying their assent to it, when the deed of assignment, as in this case, does not require such assent, and they cannot be deprived of their rights under such assignment without a refusal or waiver of their claim under it. New England Bank v. Lewis, 8 Pick. 113, and cases there cited; Story’s Eq. Pl., § 209, page 188; Pritchard v. Hicks, 1 Paige’s Ch. 270; Maule v. Dickey, 1 Johns. Ch. 153; 3 id. 671; 1 Edw. Ch. 396; 11 Wheat. 78; 6 Vesey, 661; 11 Wend. 247; 20 Johns. 338; 1 Johns. Ch. 339; id. 129; 3 id. 261; 4 id. 136; 18 Pick. 46; 9 id. 84; 4 id. 518; 17 Mass. 552; 1 Paige, 402; 1 Hopk. 524; Fonb. Eq. 458; Prevost v. Goetz, Peters’ C. C. 364; 3 Peters’ Dig. 678.

The defendant cannot state positively and satisfactorily, that the complainants had no notice of this trust,- as there are so many channels through which information may have been communicated to them. His deed and bond and possession, the payment of all previous creditors, the witness to the papers, the interest of the assignee to give the information, together with their application for payment, and suit immediately after this debt became due, raise an irresistible presumption that they had timely notice. But even if they had not received notice before the defendant purchased the property, it is immaterial, as having accepted the trust and executed it in part, he could not purchase and hold the trust property adversely to the interests and claims of the cestuis que trust.

The first two propositions are now disposed of. Hence it is the same in the consideration of the case, whether the matter in the answer, which is alleged to be new matter, had been proven or not; although I am inclined to think that the matter referred to, being in answer to the charging part of the bill, need not be proven. Smith v. Clark & Smith, 4 Paige, 368; id. 89; 1 id. 391; 1 Barb. Ch. Pr. 35, 36.

It is not necessary that the other creditors should be made parties to this bill. By the deed of assignment, after providing for the payment of certain claims, amounting to about $400, it is directed that the rest of the creditors should be paid as preferred claims, each in its order as set forth therein; and, by the answer, it appears that all the creditors previous to the complainants have been paid; and, therefore, a decree in favor of these complainants, for the amount of the note in suit, will not prejudice the claims of the creditors remaining on the list. There is no common interest between these plaintiffs and the subsequent creditors which is necessary to require them to be joined. Story’s Eq. Pl., §§ 204, 205, 206, 207; Pritchard v. Hicks, 1 Paige, 273; Jones v. Jones, 3 Atk. 111; Brown v. Ricketts, 3 Johns. Ch. 556; West v. Randall, 2 Mason, 181.

This is not a suit about trust property, or the title thereto, but is a suit to enforce payment out of a trust fund in the hands of the defendant. The defendant acknowledges to the receipt of property, more in amount than to satisfy this debt and all previous thereto, and acknowledges that he did not keep such accounts as to enable him to return how much thereof he has sold or collected. There is no account, therefore, to be taken. Nor are these plaintiffs in the light of residuary creditors, where, possibly, the assignor should be a party, particularly if there were not sufficient assets to pay the last or residuary claim. It would not have been improper to include tlie assignor as a party in this suit, but he could not be considered as a necessary party; nor do I believe that it is necessary either to aver or prove the insolvency of the assignor. In my view of the case, the fund can be followed by these creditors, in the hands of the defendant, without regard to the' present circumstances of the assignor, O’Connor, or the alleged purchase by the defendant, which I consider to be void. For these reasons I dissent from the opinion of the majority of the court.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    Bracken vs. Parkinson and others.
    1. Decisions of land officers—when conclusive. The decision of the register and receiver of a land office, upon a contested right of preemption, is conclusive, and will not be reversed or disregarded by the courts, unless in case of fraud, or clear and conclusive mistake, or where the land officers have exceeded their jurisdiction. In such cases they act in a quasi judicial capacity, and when acting within the sphere of their jurisdiction, every legal intendment is to be made in favor of their decisions, and no relief can be granted by the courts against their decisions, unless the party complaining makes out a clear case of fraud or mistake.
    2. Same. Where B. and P. severally claimed a right of pre-emption to a quarter section of land, and there had been repeated investigations of their claims before the register and receiver, who decided that each was entitled to a pre-emption of the one-half thereof on which his improvements had been made; and this decision was affirmed, on appeal, by the commissioner of the general land office, and afterward by the secretary of the treasury. Held, in the absence of proof of fraud or mistake, that such decision was conclusive upon the rights of the parties.
    APPEAL from the District Court for Dane County.
    The complainant, Charles Bracken, filed his bill of complaint against Daniel M. Parkinson, Lewis D. Vanmatre, John Vanmatre, and the unknown heirs of Andrew P. Vanmatre, deceased, and Aaron Colley, setting forth that in August, 1828, he surveyed for Lawrence, Bailey, Moore and Reed a tract of 320 acres, which they had leased of the agent of the lead mines for smelting purposes ; that in July, 1829, an addition to said survey was made for said Bailey by Samuel Cole, adjoining the former survey, and the two surveys included nearly all of what afterward proved to be the west half of section 27, in township 4, range 3 east; that on the 6th of April, 1829, the complainant entered into partnership with Andrew P. Vanmatre and in the month of October following he for the firm purchased of one Howe, then the owner of all the smelting privileges on said survey, all the rights and privileges thereto, and the lease from the superintendent of the lead mines to Lawrence and Bailey was assigned to Howe and by him to the complainant and Vanmatre, and said assignment included a field and crop of turnips then growing on the north-west quarter of said section; that the complainant gathered said crop of turnips and continue to occupy, possess and cultivate said field up to the 29th of May, 1830, when the pre-emption act was passed by Congress, and that under said act he and his said partner were entitled to a pre-emption right on said.quarter section; that on the 1st of January, 1830, the complainant for himself and partner obtained a smelter’s lease and license, and under it they cultivated a field on said quarter section and continued to occupy and cultivate it until June, 1834, in which month his partner, Andrew P. Vanmatre, died; that on the 19th day of June, 1834, complainant purchased of his legal representatives all the right and title which he had to said premises and their other partnership property, and complainant continued to occupy and cultivate the same and entered the same by pre-emption and that he had good right to enter said quarter section by pre-emption; that in August, September or October of 1834, a land office was opened at Mineral Point in which land district said premises were situated, and in October or November of that year complainant tendered to the clerk of the register and receiver of said land office a relinquishment of all pre-emption claim to the land, where he then resided, for the reason that he wished to obtain a pre-emption to said quarter section on section 27, which relinquishment was refused by said clerk as he considered it a mere formality ; that in May or June of 1835, the lands east of the fourth principal meridian came into market, and immediately thereafter he claimed of John P. Sheldon, register of the land office, the pre-emption right of said quarter section of land, in his own right and as assignee of said Andrew P. Yanmatre, under the act of Congress of the 19th of June, 1834, and of the 29th of May, 1830, and offered, to prove his said right; that in the year 1833 the defendant, Parlcinson, without law or color of equity and adversely to complainant and his said partner, entered upon a part of said quarter section of land and held the same until the complainant made said application to enter it by preemption, and at and before which time said Parlcinson applied to enter a part of said • quarter section by preemption, claiming to hold under one Eawson, who never had any right thereto; that Parlcinson endeavored to claim and prove a right thereto under and from one John Moore who never had any right thereto and entered by pre-emption elsewhere; that when complainant applied to enter said quarter section, the register of the land office refused to permit him to enter the whole or any part thereof, and then for the first time he learned that the defendant, Parlcinson, had applied for a part of the tract; that afterward and when said register knew he was absent and without giving him notice, he took up and considered the question ex parte and awarded one-half of said quarter section to the defendant Parlcinson, and the other half thereof to complainant, in the absence of complainant and of the receiver of said land office, after which said quarter section was divided by an east and west line and the north half was allotted to the defendant, Parlcinson, and the south half to the complainant ; that complainant appealed from this decision to the general land office, and after vexatious delays he succeeded in getting the register to forward the papers ; that he furnished him with abundant proof of his right, which were mislaid or suppressed by said register and that they never reached the general land office, the consequence of which was that the case was referred back to the Mineral Point land office with instructions, that if it should appear that complainant and his partner, Yanmatre, cultivated said quarter section in 1833 and had possession in 1834, their right to the pre-emption was clear, as they were the two first occupants ; that all this proof had been furnished to said register, whose duty it was to forward it when the case first went up; that in June or July, 1838, the register and receiver of the land office at Mineral Point sent to the general land office the case, without altering the former decision of the register or receiving any new proof from the defendant, ParMnson ; that in 1836, the said register permitted said ParMnson to enter the south half of said quarter section that had been previously awarded to complainant, but complainant afterward • and in 1840 got a patent for that tract; that all the proof that the commissioner of the general land office required was furnished, yet he decided adversely to the complainant, from which he appealed to the secretary of the treasury and the decision of the commissioner was affirmed, and complainant believes and charges that the commissioner kept the important facts, designedly from the secretary of the treasury ; that in 1840 ParMnson received a patent for the north half of said quarter section, but that complainant had previously taken all legal steps to procure it, etc. The bill prayed for an injunction against the defendant, ParMnson, to restrain him from conveying the legal title, and that the legal title might be adjudged to be in the complainant on the ground of his superior equity by pre-emption right to the said north half of said quarter section.
    The defendant, ParMnson, answered, and alleged that he had no knowledge of the survey made by the complainant in 1828, or of the alleged lease for said lands, and that he did not admit the same; that he had no knowledge of the additional survey for Bailey in July, 1829; that the first survey contained a part of the quarter section mentioned in the bill; that he knew nothing of the partnership of complainant and Yanmatre, and had no knowledge of the purchase from Howe, but denied that Howe had. any right in the premises, or that the assignment was made with the consent of the superintendent of the lead mines ; that he knew nothing of the terms of the alleged lease from said superintendent; that he admits that in the fall of 1829 the complainant gathered the crop of turnips, but beyond this he denied that the complainant, or others for him, occupied or cultivated said grounds before 1830, and denied that complainant or Yanmatre had a pre-emption right under the act of 1830; that he had no knowledge of complainant’s lease from the superintendent of the lead mines of January 1, 1830, and denies that complainant and Yanmatre possessed or cultivated said quarter section previous to 1830 ; admits their occupation and cultivation from about the 1st of June, 1830, to the 5th of June, 1834, when Yanmatre died; that he had no knowledge of the sale, from the representatives of Yanmatre to complainant, of June 19,1834, but believes that the sale was subsequent to that day, that the bill of sale was "fraudulent, and made to prevent defendant from obtaining a pre-emption of said land; admits that this tract of land was not reserved from sale, and denies, upon his belief, that complainant tendered to Ochiltree, clerk of the land office, a relinquishment of complainant’s right to a pre-emption on the lands where he lived ; admits the reservation of section 28 from sale, and charges that it was done at the instigation of the complainant, and that the complainant had a good pre-emption claim to the south-east quarter of that section, and might have entered it; admits that complainant made a pre-emption claim to the quarter section on section 27 in his own right, and as assignee of Yanmatre, under the act of May, 1830, and denies that he had any claim under the act of June, 1834; admits that he (defendant) entered a part of said quarter section May 3, 1833, by virtue of a conveyance from one Ransom, who derived title from one Moore, in 1832, and insisted that Moore was the first settler on the quarter section, and settled there in 1828, before the alleged surveys ; that defendant occupied and cultivated said premises from May 3, 1833, to the 19th of June, 1834, and was, under the act of June, 1834, entitled to enter the quarter section in question jointly, said Yanmatre having died before June 19,1834; admits that he applied for a pre-emption right to a part of the quarter section, which was allowed to him as to the north half thereof, which he entered,' and in 1840 received a patent therefor; denies that he was unable to prove any right under Moore, and insists that Moore sold to Ransom in 1832, and Ransom to defendant in 1833; that he had no knowledge of the allegations as to proceedings in the land office on application of complainant, and denies that the said decision was fraudulently obtained, or was against the rights of complainant; knows nothing of the appeal to the commissioner of the general land office, or whether any proofs or papers were mislaid or suppressed, and does not admit that such was the case; does not admit that such instructions as are alleged were given by the commissioner of the general land office to the register and receiver at the Mineral Point land office, and denies that complainant ever furnished sufficient proofs of his claim, or that he could do so; denies that, at the second hearing, no proofs were furnished by him (defendant) to prove his claim; admits that, in 1836, he was permitted to enter the south half of said quarter section, but denies that the entry was made pending an appeal to the general land office; denies all knowledge of the second commitment of the case to the commissioner of the general land office, or of his decision, or of an appeal therefrom to the secretary of the treasury, or of his decision thereon, and denies that the commissioner or secretary of the treasury, or any other power, had authority to review the decision of the register and receiver of the Mineral Point land, office, and insists that their decision was and is final and conclusive; sets up that he has been at great expense in making improvements on the premises, and that he should be compensated therefor in case of a decree against him.
    The complainant filed a general replication.
    It appeared, from the evidence and the records of the general land office in relation to the tract in question, that, on the 1st of August, 1828, the complainant surveyed, for Isaac Reed & Co., the three hundred and twenty acres mentioned in the bill; that Lawrence & Bailey sold to Alden R. Howe, March 3,1829, and on the 21st of October, 1829, Howe assigned to the complainant ; that, on the 1st of October, 1829, the superintendent of the lead mines leased the premises to complainant ; that, in the survey, Moore was included, under an understanding that a partnership was to be perfected (which was not carried out) to keep a tavern. Moore sold by quitclaim deed to Ransom all of the premises on the east side of the old Dodgeville road, and nothing on the west side except the rails, and Ransom said he would make his farm on the east side of the road, and would not interfere with any claim on the west side of the road; that the complainant and Yanmatre purchased of Howe, who bought of Lawrence & Bailey in 1829, and took possession the same year, and gathered the crop of turnips that year; that complainant and Yanmatre broke six or seven acres of the land in 1830, and continued in possession, cultivating, until 1834, when Yanmatre died June 5, 1834, and on the nineteenth of the same month, his administrators sold his interest to the complainant; that the first improvement was made by Moore and Reed & Co.; that Moore never broke on the survey more than three acres, and when he sold to Ransom he was in possession of eight acres broke by Lawrence & Bailey, which he surrendered to the complainant; that Moore sold nothing on the survey to Ransom but the rails, his sale to Ransom having been made in the spring of 1832, and Ransom said he would make his farm off the - survey entirely. Ransom sold to Parkinson May 3,1833, and Parkinson occupied and cultivated part of the quarter section from that time on. One of the letters from the register and receiver of the land office at Mineral Point to the commissioner of the general land office, dated January 14, 1836, contains an inquiry whether they might be permitted to.allow Parkinson to enter the south half of the quarter section on which were complainant’s improvements, to retaliate upon him for entering a piece elsewhere, upon which Parkinson had improvements. On the 21st of January, 1836, the register and receiver of the land office at Mineral Point sent a communication to the general land office, with the papers in the case. On the 28th of April, 1837, the commissioner of the general land office wrote the register and receiver at Mineral Point, returning the case for further proofs, saying, that if Bracken and Yanmatre cultivated the premises in 1833, and occupied them June 19, 1834, they were entitled to the land, and that the settlement by Moore could not avail Parkinson. The commissioner directed new proofs to be taken, upon notice to the parties. It appeared that the register refused to give complainant a copy of these instructions. On the 6th of January, 1838, the commissioner of the general land office wrote to the register and receiver at Mineral Point to send up a report of their proceedings, and expressed surprise, that, pending the decision on the subject, they should have allowed Parkinson to enter the south-half of the quarter section. July 31, 1838, the register and receiver sent to the general land office the papers and their decision, giving the north half to Parkinson, as formerly, confirming their original decision, dated July 28, 1835, and it was drawn up and signed by John P. Sheldon, Register, to which is appended the following: ‘ ‘ From the testimony adduced by both parties in the above case, I concur in the decision as above rendered.’ ’ (Signed)c‘Joseph Encix, Receiver.” This concurrence is not dated, and from the deposition of Parris, afterward register, it appears that the original, on file in the land office at Mineral Point, had no signature but that of the register.
    The venue of the cause was changed to Dane county, and at the hearing, the district court for Dane county decreed that the bill be dismissed, with costs, from which decree the complainant appealed.

      T. P. Burnett and Ed/ward V. WTiiton, for appellant.
    1. The complainant claims under the acts of 1830,1832, and 1834, by virtue of the first settlement and cultivation, the cultivation in 1829 being by himself and Yanmatre, and by himself up to 1835. There can be no doubt but they were the first two actual settlers. It is proved that Yanmatre’s interest was assigned to the complainant and he bought the possession and succeeded to his rights. The claim of Parlcinson on the ground of occupation and cultivation in 1833, is derived by purchase from Ransom who bought of Moore, and he could acquire no right for the reason that he entered by pre-emption elsewhere.
    2. The allegation that the matter was decided by the register in the absence of the receiver is not answered, and the proof shows that such was the fact. The instructions from the general land office were not complied with, but were entirely disregarded. The register was not competent to decide the case for it was not submitted to Ms decision. The case was not proceeded with according to law. The law contemplates a joint hearing and a joint decision by the register and receiver, and a decision made by the register and a subsequent assent by the receiver is not such an adjudication as is contemplated by law and will not conclude the parties.

      Moses M. Strong, for appellee.
    1. The whole controversy has already been decided by the government officers and is res adjudieata. The case wentup by appeal to the highest authorities in the department and has been decided in favor of the defendant. 13 Pet. 511. Opinions of the Attorney General, April 21, 1836, and April 30,1836. Decision of Secretary Wood-bury April 14,1836. This court cannot review the matter as an appellate tribunal.
    2. But upon the proofs, the defendant’s rights were as good as the complainants. In 1829 the land was not the subject of pre-emption because the Indian title had not been extinguished. By Vanmatre’s death his rights were extinguished so far as a pre-emption was concerned. Bracken and Parkinson were in reality the two first settlers, and were entitled to divide the quarter section between them, and this was the result of the decision of the department and they are now bound by it.
   Miller, J.

(Maries Bracken filed his bill on the chancery side of the district court against the defendant, Daniel M. Parkinson, for the purpose of obtaining a decree to vacate a patent issued by the United States to said defendant. It appears in said bill, the answer of the defendant, as well as in a great mass of testimony, that the parties severally claimed a pre-emption for a quarter section of land; that, after repeated investigations and trials before the land officers at Mineral Point, during a period of about six years, the said land officers reported the testimony taken before them, with their opinion, recommending a division of the quarter section between them, assigning to each the portion which he claimed to have improved. After an additional investigation, a similar report and opinion of the said officers were adopted by the commissioner of the land office, and approved by the secretary of the treasury after a thorough examination of the evidence. In pursuance thereof, patents were issued to the respective parties. To vacate the patent to the defendant, this suit is brought.

By the act of congress’, prior to any entries being made under the privileges given, proof of settlement or improvement shall be made to the satisfaction of the register and receiver of the land district in which the lands now lie, agreeably to the rules to be prescribed by the commissioner of the general land office for that purpose. It being necessary that some tribunal or authority should be created to take the proofs, and pass upon them as presented by the claimant, for the benefit of the law, the .land officers were very properly, and according to the policy of the government in disposing of the public domain, authorized to perform this duty. The policy of the government is, to dispose of the public lands in such a plain and simple manner that every person, however illiterate, can transact his own business at the land office, without expense or unnecessary trouble, or the risk of litigation. It is also the policy to consider the acts and reports of the land officers, in the discharge of their duties, to be subject to the supervisory powers and control of the government at Washington, as the party from whom the title is to pass.

In the case of Wilcox v. Jackson, 13 Pet. 511, the supreme court of the United States, in answer to the argument that the decisions of the land officers in cases of pre-emption are conclusive, remarks, “that the acts of congress have given to the registers and receivers of the land offices the power of deciding upon claims to the right of pre-emption; that upon these questions they act judicially; that no appeal having been given from their decision, it follows as a consequence that it is conclusive and irreversible. This proposition is true in relation to every tribunal acting judicially, while acting within the sphere of their jurisdiction, where no appellate tribunal is created; and even when there is such an appellate power, the judgment is conclusive when it comes collateraEy in question, so long as it is unreversed.” From these remarks it is inferred that this decision sustained the proposition that there is no supervisory power over the opinions or acts of the land officers. We do not believe that the court so decided, or intended so to decide. The satisfaction of the officers upon the evidence is to be considered conclusive generally, and for all purposes required to insure to the claimant his title. It cannot be inferred or presumed that congress intended their finding in a case of pre-emption to be so conclusive as to require the government to issue the patent, or to deprive the courts of the power to administer justice between the parties. The inherent power of the courts is not to be destroyed by implication.

Congress has the sole power to declare the dignity and effect of titles emanating from the United States, and the whole legislation of the government in reference to the public lands, declares the patent to® be the superior and conclusive evidence of legal title. At law, the patent is conclusive. But if those who claim to hold the land against the patent can show that it issued by mistake, then the equity side of the court is the proper forum, and a bill the proper remedy to investigate the equities of the parties. Bagnell v. Broderick, 13 Pet. 436.

The' case of a pre-emption is different from that of a mere private entry. In the latter, a mistake would, probably, be merely clerical, and easily corrected. In the former, an investigation of proofs is required; the mind has to deliberate and pass upon the facts proven, and form a conclusion. In this the land officers act quasi judicially, and for this reason their decisions should not, after the title has passed, be disturbed, unless where they act beyond their jurisdiction or power, or in cases of fraud, or conclusive mistakes. When they act within their sphere or jurisdiction, every legal intendment is to be made in favor of their decision, and it is the duty of the court to require of the party complainant to make out a clear case of fraud or mistake. We cannot go into a detailed statement of the facts in this case, but we have examined the pleadings and evidence with diligence and care, and are fully satisfied that this is not such a case, either of fraud or mistake, as to authorize this court in disturbing the patent of the defendant. It is, therefore, considered by the court that the decree of the district court, dismissing the complainant’s bill, be affirmed.


text:
    Oakley and another vs. Hibbard.
    1. Power to grant a rehearing. Where an appellate court of last resort has rendered and entered of record its final judgment or decree, the rights of the parties are concluded, and it has no power to rehear the cause.
    2. Appeal to united states supreme court. By the organic law of the Territory the sum or amount in controversy, as settled by the decree made, fixes the character or condition of the cause, as to whether an appeal can be taken to the supreme court of the United States.
    After the decision in this case, 1 Pinney 674, a petition for a rehearing was filed by the complainants and appel-lees.

      Randall & Ogden, for petitioners.

      Lem Hubl/ell, contra.

   Miller, J.

There are two questions which are to be considered on this application. The power of this court to review its own judgments and decrees, and the propriety of so doing in reference to the correctness of the decree proposed to be reviewed.

Although the court would at all times be willing to review its judgments and decrees, when they may do so with the sanction of authority, on the complaint of a party that the iperits qf the cause were not decided, yet, if. it is clear that they have not the power to do so in this or like canses, a rehearing must be refused. The supreme court of the United States have settled that “appellate power Is exercised over the proceedings of inferior courts, not on those of the appellate courts. The supreme court has no power to review its decisions whether at law or in equity. A final decree in chancery is as conclusive as a judgment at law. 1 Wheat. 355 ; 6 id. 113.116 ; 12 Pet. 492; 3 How. 426. Both are conclusive of the rights of the parties thereby adjudicated.” This courtis the dernier resort, in causes like the one presented, and we have no greater power in this cause than the supreme court of the United States can exercise in causes there presented. It is contended in argument that this cause is not within the rule laid down by the supreme court of the United States, for the reason that no mandate has issued from the supreme court of the Territory to the district court, therefore the cause is completely within the control of the appellate court, and may be reheard. This view is not entertained in the decisions cited. The principle settled is, that where an appellate court of last resort has made and entered of record its final judgment or- decree the rights of the parties are concluded, and the court has no power to rehear the cause. It is also insisted that this court is not the court of dernier resort in this cause; that other claims against the appellant, than the one really in dispute in the cause resting upon the same basis, are alluded to in the complainants’ bill. The real amount claimed by the complainant and for which a decree is asked in this cause, is much less than $1,000, and we are clearly of opinion that an appeal does not lie to the supreme court of the United States. By the organic law the sum or amount in controversy and which may be settled by the decree made, fixes the character of the cause as to whether an appeal lies or not to the supreme court of the United States. Claims incidentally alluded to in the bill and not brought in controversy to be decreed on, do not influence the question in the least. The case of Green v. Biddle, 8 Wheat. 377, where a rehearing' was granted is not in point. That canse was taken to the supreme court, on a decision of opinion or the judges of the circuit court of the United States in the State of Kentucky on' two questions. The defendant did not appear by counsel and no argument was heard in the supreme court on that side of the question. Before the opinion was certified to the court below, on the second or third day after the argument, a motion was submitted by Mr. Clay (as amicus curia) for the reason stated and the further reason that the rights and interests of a great number of possessors and improvers of land in Kentucky would be irrevocably determined by the decision in the cause ; to withhold the certificate of opinion from the circuit court and permit the cause to be fully argued, which was granted. The circuit court applied to the supreme court for advice and its opinion upon the questions submitted and certified, in-order that a proper judgment might be entered upon the merits in the circuit court. This advice or opinion has no force or influence until sent forth to the circuit court, and indeed does not exist until certified in form to that court. The questions are therefore always before the supreme court for argument until they have finally settled upon and certified their opinion. If s.o, the supreme court might withhold the certificate for further argument and full opinion. Wé do not think this like a cause wherein the supreme court is required to pronounce a full and final decree or judgment. In such causes the supreme court has never granted a rehearing. With this view of the application for a rehearing, it is unnecessary to say any thing on the merits of the final order or decree made in this cause at the last term of this court.

The motion for rehearing upon the petition presented is overruled.


author: Irvin, J.

text:
    Martin and another vs. Ryan and another.
    1. MARRIAGE. The validity of a marriage actually consummated cannot be questioned by tbe busband in an action brought against him and bis wife.
    2. Same. Where tbe marriage ceremony is solemnized by a person who bad no authority in law for that purpose, and is followed by cohabitation of tbe parties, and acknowledgment of each other before tbe world as busband and wife, tbe marriage is valid.
    ERROR to the District Conrt for Racine County.
    The case is stated in the opinion of the conrt.

      Levi Hubbell and Lyman Cowdry, for plaintiffs in error.
    1. The justice erred in admitting parol proof of the marriage of the defendants, or proof that C. P. Le Fever was a minister.
    2. There was no proof of any legal marriage between John and Dorcas Martin. 1 Kent’s Com. 447; Clancey on Hnsb. and wife, 22; 3 Campb. 438 •; 1 Blackf. 192 ; 7 Mass. 53-57; Stat. of Wis. 139, §§ 1, 2 and .3.

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

This case was commenced before a justice of the peace in and for the county of Racine, upon a promissory note given by one of the defendants, Dorcas B. Martin, to the plaintiff while she was sole, and by the name of D. B. Simmons. Afterward, and previously to the commencement of this suit, she intermarried with the other defendant, John Martin, and the suit was accordingly brought against both. Recovery by the plaintiffs was resisted by John Martin, who answered to the summons, on the ground that he and the said Dorcas had not been married according to the requirements of the statute: in this, that the person who officiated in the ceremony of marriage as a minister of the gospel had not, before performing the ceremony, filed his credentials of ordination with the clerk of the district court of that county, as the law required, and, therefore, did not appear to be a minister under the law. The second section of the act (Wis. Stat. 139) reads thus: “Ministers of the gospel, ordained and in regular communication as aforesaid, before they shall be deemed authorized as aforesaid, shall file a copy of their credentials of ordination with the clerk of the district court of the county in which the marriage by them may be solemnized, and such clerk shall enter the same of record, and give a certificate of the same.” The sixth section imposes a penalty on all persons who shall knowingly solemnize marriage contrary to the true intent and meaning of the act. The marriage in question was solemnized under a license from a proper officer, in the presence of witnesses, who depose in the case to that fact, and was afterward certified, as the law directs. These facts are mentioned, not because they are material to the question under consideration, but because they are in the case, and are, by the parties, thought to be important. The defense set up is untenable, first, because the facts involved cannot be inquired into in this collateral way, and, second, if they could be, they form no defense; first, because if the person officiating had failed to comply with the law in the particular mentioned, the only consequence would be his exposure to the penalty of the law ; and, second, because the said defendants had, after said ceremony, lived together as man and wife, and the said John had recognized the said Dorcas as his wife before the world. Upon these points the doctrine is so well settled that it is not deemed necessary to refer to any case in support of it. Judgment was given for the plaintiffs, and the case was taken by certi-orari into the district court of Racine county, and there the judgment of the justice was affirmed, and, we think, correctly. We therefore affirm the judgment of the district court.


text:
    Reed vs. Beach.
    Attachment. A claim for the recovery of three times the amount of unlawful or usurious interest received, is not an indebtedness arising . out of, founded upon or sounding in contract, and cannot be proceeded upon by attachment.
    ERROR to tlie District Court for Rock County.
    The case is stated in the opinion of the court.

      David Doggie, for plaintiff in error.

      J. M. Keep, for defendant in error.
   Miller, J.

The plaintiff in error brought suit against the defendant in error by attachment. The claim of the plaintiff is for excessive interest,- according to and in pursuance of the statute against usury. The defendant appeared by counsel; and upon motion the attachment was quashed and suit dismissed, on the ground that the claim was not a debt founded upon contract, in contemplation of the attachment law. Usury is punishable differently in different States. In some an indictment is authorized; in others an action of debt for the amount of the forfeiture is allowed ; in others an action of assumpsit is the means of enforcing the statute remedy. In some States the debt is forfeited, in others the amount of the debt is recoverable as a penalty; in others three times the excess of interest is the forfeiture. In some States the action is qui tam ; in others the party aggrieved sues for and recovers the whole forfeiture.

By the second section of the statute of Wisconsin relating to interest, the person taking or receiving usurious interest shall forfeit three times the amount of the excess, to be recovered by an action of assumpsit. This is made a penalty of forfeiture for the commission of an illegal act, made so by statute, as well as the means of enforcing and collecting it. The legislature might just as well have authorized a qui tam action in debt or an indictment, as an action of assumpsit. In principle there is no essential difference, and in practice the same technicality in the pleadings, and the same certainty in the evidence, are required in an action of debt or assumpsit as in a proceeding by indictment.

To authorize an attachment in any case, the defendant must be indebted to the plaintiff in a cause of action arising out of, founded upon or sounding in contract. The cause of action in this case is clearly not a debt or claim arising out of a contract made and entered into between the parties according to law, and upon the principles of fair dealing between man and man ; but it arises out of a contract made and entered into in violation of law and contrary to a statute, and is the penalty of forfeiture created by the statute itself for such violation or infraction of it. When the contract of loan was made the defendant did not directly or indirectly promise to pay to the plaintiff three times the excess of interest. The nature and amount of the plaintiff’s demand must be set forth in the affidavit, required by the statute to be presented to the judge, for the allowance of an attachment. And to authorize him to allow the writ, there must be set forth such a debt in the affidavit as is contemplated by the statute and no other. If the debt is not of that character, the writ is issued erroneously and it becomes the duty of the court to quash it upon motion.

We are therefore of opinion that the debt or claim, in the affidavit filed in this case, is not such as is contemplated or required by the statute, and that the court decided correctly in quashing the writ and dismissing the suit upon motion. Let the judgment of the district court be affirmed.


author: Irviu, J.

text:
    Woodward vs. Garner.
    1. Justice’s court — jurisdiction. Under the Organic Act limiting tlie jurisdiction oí justices of the peace, a justice of the peace has no jurisdiction of an action founded upon an account for a greater sum than $50 though the amount of the account may have been reduced to less than $50 by payments or credits.
    2. Jurisdiction— practice. A want of jurisdiction maybe taken advantage of at any stage of the proceedings, prior to final judgment.
    ERROR to the “District Court for Ch'ant County.
    The case is stated in the opinion of the court.

      Barker & Dewey, for plaintiff in error.
    No appearance for defendant in error.
   Irviu, J.

This case originated before a justice of the peace in Grant county, who rendered a judgment therein for the defendant, for the sum of twenty-seven cents and the costs of suit, upon which the plaintiff obtained a writ of certiorari, and removed the cause into the district court for that county, where the judgment was reversed, and one given for the plaintiff for the sum of $3.79 and the costs of suit, to which judgment the plaintiff in error took exception, and sued out a writ of error, upon which the case has been brought to this court.

The only point now raised and brought to the consideration of the court in this case is one of jurisdiction. Upon examination of the account of the plaintiff below, upon which suit was brought, it is found to amount to the sum of $57.47, upon which there are credits amounting to $30.48. The defendant filed an account in set-off amounting to $49.95. The question of jurisdiction was not raised, in the district court, and is here made for the first time. By the organic law, the jurisdiction of justices of the peace is limited to the sum of $50, and the account of the plaintiff amounting to a greater sum, the justice was necessarily ousted of jurisdiction, notwithstanding the credit which the plaintiff had given upon the account, as the total amount of the account formed the subject of inquiry and adjudication. This principle was declared in the case of Barker v. Baxter, ante, in which all the authorities relied on are cited. It is never too late to take advantage of a want of jurisdiction, at any stage of the proceedings, previous to a final judgment. See the decision of this court in the case of Dewey v. Hyde, ante. We therefore recognize the exception as taken in due time, and accordingly reverse the judgment of the district court, and direct that the case be dismissed by that court for want of jurisdiction, and that it be so certified to that court, to be carried into execution.


text:
    Clark vs. Wood.
    CERTIORARI. Under the statute authorizing the district court on certi-orari to give judgment in the case as the right of the matter might appear, -without regard to technical omissions, imperfections or defects in the proceedings before the j ustice not affecting the merits, and to affirm , or reverse the judgment in whole or in part, where in assumpsit before the justice, the defendant pleaded the general issue and notice of set-off only, and at the trial the plaintiff established the demand sued for, but judgment was given for the defendant upon his being allowed to show before the justice the non-joinder of a defendant liable with him, held, that the justice erred, and that, on certiorari to his judgment, the district court rightfully reversed it, and properly rendered judgment for the plaintiff for his demand.
    ERROR to the District Court for Dane County.
    The case is stated in the opinion of the court.

      J. T. Clark, for plaintiff in error.

      John Qatlin, tor defendant in error.
   Miller, J.

The plaintiff in error was sued by the defendant in error before a justice of the peace in assumpsit. The defendant pleaded the general issue, with notice of set-off. Upon the trial, the plaintiff proved his right to recover to the amount of $25. The defendant did not submit any evidence upon the merits, but called one witness, and proved by him that he and the said witness were partners, and jointly liable to the plaintiff. The justice, upon the motion of defendant, then entered a a nonsuit against the plaintiff. A certiorari was thereupon sued out by the plaintiff, and the cause thereby removed to the district court, when the judgment of the justice was reversed, and judgment rendered in favor of the plaintiff for the sum of $25 and costs.

Section4 of an act to amend an act entitled “An act concerning justices of the peace,” approved January 30, 1844, authorized a certiorari in all cases where an appeal is not allowed, and requires the justice to return all the testimony and proceedings had before him. Article 12 of the original act, on page 340 of the statutes, is continued and decided to be in force. By the ninth section of this article, the district court shall proceed to give judgment in the case as the right of the matter may appear, without regarding technical omissions, imperfections or defects in the proceedings before the justice which did not affect the merits, and may affirm or reverse the judgment in whole or in part. As an appeal is not allowed unless the judgment of the justice shall exceed $15, it was made the duty of the justice to return all the testimony in the cause, so that the court shall be enabled to proceed and give judgment in such cases as may be removed therein by certiorari, as the right of the matter may appear. Without this requirement of the law, the party injured or aggrieved by the judgment of the justice, where the amount thereof is not sufficient for an appeal, would in many instances be without redress. Where the case is clear upon the merits, and an essential error was committed by the justice as in this case, there can be no doubt of the propriety of a judgment of the district court reversing that of the justice, and also concluding the rights of the parties upon the merits.

It was contended that the judgment of the court is erro-' neons, inasmuch as that of the justice was a mere judgment of nonsuit; but it must be remarked, that the defendant pleaded the general issue, with notice of set-off, but at the trial he did not dispute or deny the right of the plaintiff to recover upon the merits or facts proven. If he had any defense, he should have shown it; and, in the absence of such, it is fair to presume that he had none. It is, therefore, the opinion of the court that the judgment of the district court be affirmed.


author: Dusnsr, C. J.

text:
    Pyncheon vs. Baxter.
    1. Costs. It is the general rule that a party recovering a verdict also recovers his costs.
    2. Statute — pkactice. Under the act of January 27,1844, providing • that in all actions commenced in the district court, if the demand of the plaintiff as found on the trial, shall exceed $50 and be reduced by set-off to a less sum than $50; in a case where the plaintiff claimed more than $50 and the defendant pleaded the general issue and notice of set-bff, and there was a verdict for the plaintiff for $1.25 and nothing to show to what extent the plaintiff proved his demand. Held, 1. That costs were properly awarded to the defendant. 2. That it is competent for the jury to find' in such case to what amount the plaintiff proved his demand, and in default of such finding, the court for the purpose of awarding costs may determine it.
    ERROR to the District Court for Dane County.
    The case is stated in the opinion of the court.

      A. L. Collins, for plaintiff in error.

      John Gatlin and Samuel Crawford, for defendant in error.
   Dusnsr, C. J.

Error is prosecuted in this case to reverse the judgment of the district court of Dane county rendered at the last December term thereof in favor of Baxter, defendant here and in the court below, for costs. There is but one question presented for the consideration of tills court. It is assigned for error that “the district court erred in sustaining the motion of defendant for a judgment against plaintiff for costs, whereas on the verdict of the jury, judgment should have been rendered for the plaintiff, not only for his damages assessed, but for costs of suit.”

The plaintiff, Pynclieon, declared in assumpsit for $400, for work and labor done and material found, for money lent and advanced, laid out and expended, and for money due and owing on an account stated, and filed Ms bill of particulars containing the items which constituted the aggregate of his demand of $400. The defendant, Baxter, pleaded non-assumpsit and gave notice of set-off, and filed his bill of particulars amounting to some $200. Issue being joined on the case as presented, the jury found that the defendant had assumed and promised as the plaintiff had declared and assessed his dama - ges at $1.25. Upon this finding the defendant moved the court for judgment for costs, the motion was sustained and a j u'dgment i’endered in favor of said defendant for his costs. The general rule would give the party for' whom the verdict was found a judgment for costs'; if this-case is an exception, it must be so under the first section of an act of our legislature entitled “An act to amend an act entitled an act concerning costs and fees,” approved January 27, 1844, which section is in these words: “That in all actions commenced in the district court if the demand of the plaintiff as found on the trial shall exceed the sum of $50, and shall by the set-off of the defendant be reduced to a sum less than $50, the plaintiff shall have judgment for Ms damages and costs.” The whole question turns upon the meaning of the words in the section “asfound at the trial.” We hold that it must be found on the trial either by the jury or court that the plaintiff’s real, substantial demand, exceeded $50, and that it was reduced by the set-off of the defendant, then the plaintiff is entitled to judgment for Ms damages and costs.- If this is not found by the jury or court, and the verdict is less than $50 for the plaintiff, the defendant must have judgment for his costs. We are of opinion that the court as well as the jury may find these facts on the testimony and proofs submitted, for the purpose of determining how the costs shall be adj udged. The court may as well examine the testimony on a question of this kind as it may on a motion for a new trial in any case. We find in the English cases, where the amount of damages recovered determines the plaintiff’s right to costs, that the courts look into the facts and certify the real amount of damages. In the case at bar neither the court or jury find in terms, that the real amount of plaintiff’s demand, proven on the trial, exceeded $50, and was reduced by set-off. Nor does it appear in the record that any set-off was proven or allowed. Indeed we must presume from the judgment of the court awarding costs to the defendant that such facts did not appear on the trial.

The judgment of the District Court is afiirmed, with costs. Ordered that it be so certified.


text:
    Lybrand vs. Carson.
    1. Justice’s court — title to laud. The legislative assembly bad authority, under the organic act, to regulate and limit the jurisdiction of justices’ courts within the restrictions it contains, and to provide, where, in an action for the recovery of less than $50, for trespass upon lands, if the defendant justified by a plea of title, that the case, and all proceedings therein, should be certified and returned to the district court.
    2. Same. Upon filing the papers and proceedings in such case in the office of the clerk of the district court, it is the duty of such court to entertain jurisdiction of the case, and proceed therein to final judgment.
    3 Same. Where, upon the plaintiff’s own showing, the title to lands is in question in a case injustice’s court, it is the duty of the justice to dismiss the case for want of jurisdiction.
    ERROR to the District Court for Oreen County.
    The case is stated in the opinion of the court.

      J. A. Bingham and J. O. Knapp, for plaintiff in error.

      8, P Oandee, for defendant in error.
   Miller, J.

It appears that the plaintiff in error com-’ menced this snit, before a justice of the peace, against the ■defendant in error, for entering his close and cutting timber thereon. The defendant appeared to the suit, and pleaded title in himself to the premises described in the plaintiff’s declaration, and thereupon the justice, in pursuance of the statute, ceased all further proceedings in the case, and certified it to the district court. The defendant, by his attorneys, appeared in the district court and moved the court to dismiss the suit and proceedings, upon the ground of want of jurisdiction in the justice. The said motion was allowed by the court, and the suit was dismissed, which is here assigned for error.

In section 9 of the act establishing the territorial government of Wisconsin, is a provision that justices of the peace “ shall not have jurisdiction of any matter where the title or boundaries of land may be in dispute, or where the debt or sum claimed exceeds $50.” In pursuance of this act of congress, the legislative assembly enacted the law concerning justices of the peace, in which (Rev. Stat. 322) jurisdiction is conferred upon justices of the peace in actions of trespass to injuries to real and personal property, and (p. 325 of the same statutes) it is provided that if, in a suit for a trespass upon lands or tenements, the defendant shall justify by a plea of title, the justice shall immediately make an entry of it in his docket, shall cease all further proceedings in the case, and certify and return to the district court of the county a transcript of all the entries made in his docket relating to the case, together with all the processes and other proceedings relating to the suit; and, upon the filing of the proceedings and the papers in the office of the clerk, the court shall become possessed of the cause, and proceed therein to final judgment. From these statutes it satisfactorily appears that the justice had legal authority to issue the process, to record the return to the same, to enter the pleadings of the parties, and had full and complete jurisdiction of the suit and the parties, until the defendant ousted him therefrom by his plea of title. -

The plaintiff came into the justice’s court legally, and was entitled to be heard therein. He was not presumed to know that the defendant had or claimed title to the land, and, even if he did, he was not presumed to know that the title would be pleaded. In addition to this, as his claim did not exceed $50, he could not commence his suit in the district court without liability for costs, unless the defendant there should plead his title, which he would not be bound to do. As the defendant, by his plea, ousted the justice of the jurisdiction that had previously thereto existed in him, it cannot be pretended that this ouster shall operate so as to render the writ extra-judicial and void. It became highly proper and necessary for the legislative assembly, under the prohibition in the organic law, to provide for the removal of suits to the district court after the plea of title should be interposed. Without such a law, any defendant in trespass could oust the justice of jurisdiction without a shadow of right or claim to the land. Justice could not be administered to plaintiffs in small cases without such a law. It cannot be doubted for one moment that the legislative assembly had the power to pass the act providing for this proceeding. It has the power to limit the jurisdiction of the courts, except where the limitation is fixed by the organic law, and has power to prescribe the manner in which writs may be purchased, and to regulate the proceedings thereon. All writs may, by law, be authorized to be issued by justices of the peace, and made returnable to the district court, although, it would be an anomalous practice. As a justice has not jurisdiction of a suit wherein the title to land comes in question, the legislature could not adopt a more simple or proper mode of preserving the rights of a plaintiff when the defendant chose to raise the issue. The plaintiff having a claim known to the law, and being in the legal and constitutional court for the disposition of his suit, he was entitled to be placed in a court where his cause could be disposed of, after the defendant had onsted him from the proper tribunal. Reverse the case, and make the defendant the plaintiff in the justice’s court, in a suit to try the title to the land, and it wonld be clear of all doubt that the proceeding would be extra-judicial and void. But it will not do to permit the defendant in the suit under consideration, by his plea, to oust the justice of jurisdiction legally attached, and then follow the plaintiff into the district court, and there say to him that “ because I have, by my plea, deprived you of a trial in a tribunal legal and proper for the disposition of your case in the first instance, you shall not be heard in this court either. It must also be borne in mind that, in suits under $50, the district court and justices of the peace have concurrent jurisdiction, the only difference being as to the costs, which cannot be allowed the plaintiff if he comes into court in the first instance, with a-case cognizable before a justice.

It is an error to liken this case to an appeal from the judgment of a justice to the district court, in respect to jurisdiction. In an appeal whenever it appears that the plaintiff had originally gone into a court limited in jurisdiction below the amount of his claim or demand, it becomes the duty of the court to dismiss his suit for want of jurisdiction, for the appellate court cannot exercise greater jurisdiction of thé subject-matter, than the original court.

The appeal does not enlarge the jurisdiction as to the amount claimed: Incases of appeal the suit is dismissed because the plaintiff has gone into the wrong court, but in this case the plaintiff was in the right court for his demand, and the justice was compelled to cease all further proceedings here, by the act of the defendant. This suit appeared in the district court the same, as if it bad been originally brought there; an original action, without any previous adjudication of the merits. Such a proceeding as this is provided for by statute in almost every State in tbe Union, and it does not appear that the question of jurisdiction has ever been raised before. In New Hampshire the justice’s jurisdiction is limited by the constitution, in terms similar to those used in the organic law of this Territory. The legislature made provision for a proceeding in cases wherein the plea of title interposed before justices of the peace, similar to that embraced in our statute and above quoted, which is. sustained and enforced by the courts of that State. Foster v. Levitt, 8 N. H. 353. The certificate of the justice is a mere ministerial or clerical act.

The court directs that the judgment of the district court be reversed, with' a mandate to the said court to reinstate the suit upon the docket and proceed therein according to law.


text:
    Le Clerc vs. Wood and others.
    1. Attachment. The affidavit which is set forth at length in the opinion of the court, held, sufficient.
    2. Abatement. A suit commenced by attachment, while another action between the same parties for the same cause of action is pending, will be abated upon these facts being pleaded and proved, although the former action was discontinued after the plea in abatement but before replication thereto. It is not necessary that both actions should have been pending at the time of pleading in abatement; it being sufficient to defeat the second, that the first one was pending when the second was commenced.
    3. Same — practice. If the defendant pleads in abatement and it be found against him, final or peremptory judgment shall be given against him, unless the issue was tried by certificate, by inspection or by the récord, or in any other way than by jury. If not tried by a jury the proper judgment is, that the defendant answer over, and final or peremptory judgment on such trial would be erroneous.
    ERROR to tbe District Court for Crawford County.
    Tbe case is fully stated in tbe opinion of tbe court.

      Learned & Barber, for plaintiff in error.

      O. Q. Pratt, for defendants in error.
   Irvin, J.

This case was commenced in the county of Crawford, by attachment returnable to the May term of the district court for 1844. The affidavit on which the writ of attachment was procured, was as follows, to wit: O. C. Pratt, being duly sworn, deposes and says, that Leander LeGlerc is indebted to James Wood, William T. Christy and James C. Christy, in the sum of $976, or thereabouts, as appears by a certain promissory note now due, which said note is under the control of deponent, and was admitted to said deponent, by said Le Olere, as a just demand against him ; and this deponent further says, that he verily believes that the said Leander Le Olere ’is about fraudulently to convey away and dispose of his property with the intent to hinder and delay his creditors in the collection of their claims against him. And this deponent further says, that the facts and circumstances inducing the belief of such fraudulent intent are as follows : After coming in possession of the aforesaid note for collection, deponent was credibly informed that the said Le Olere had made an assignment of certain goods, in a store in Prairie Du Chien, to one Donald A. McKenzie. Deponent immediately visited that place to ascertain the fact, and found the said Le Olere in possession and exercising control over the store of goods reported to have been assigned as aforesaid, and also found, on examination at the office of the proper officer for recording mortgages, assignments, etc., that no assignment was on record, or on file in said office at Prairie Du Chien, made by said Le Olere to any person whomsoever; and further says, that after said Le Olere had been advised (as deponent had reason to believe) that steps were about to be taken against said goods to secure the debt herein described, he, the said Le Olere, put on file, in the register’s office aforesaid, an instrument purporting to be an assignment of his property to said McKenzie, made some twelve or more days before. And he further says, that the property so pretended to have been assigned is large in amount and worth, as near as deponent can ascertain, several thousand dollars more than the sum of debts professed therein to be secured, and that said assignment contains a provision for his own benefit, in fraud, as deponent is advised, of the other creditors of said Le Clero. And deponent further says, that he is informed, and believes the same to be true, that the said Le Clerc, with the intention of converting his property into money, to hinder his creditors in the collection of their demand, has lately sent certain of his goods to different parts of the country, and disposed of the .same at forced auction sales, and at a sacrifice; and he further says, that the said Le C lero, in a conversation with deponent on the sixteenth instant, said that he had made the conveyance heretofore mentioned to D. EL McKenzie to prevent certain of his creditors from disturbing his business, as well as to secure the debts therein described; and further this deponent says notwhich was subscribed by said Pratt, and on which an allowance of a writ of attachment was made by the judge of the district. At the said May term the defendant made, by his counsel, a motion to quash the writ for various reasons, among which was one for want of a sufficient affidavit. In this court this is the only one insisted upon, and it upon examination, is not regarded by the court as sufficient to quash the writ. At the same term the defendant pleaded the pendency of a prior suit between the same parties, and for the same cause of action, in the same court, in abatement of this suit, to which the plaintiff replied nul tiel record, and upon which the parties went to trial; in relation to which the following statement of facts is presented to this court, by a bill of exceptions filed in and made a part of the record of this case, to wit: “ Be it remembered that, at the present term of this court, came the parties aforesaid, by their attorneys, and upon the trial of the truth of the defendant’ s plea in abatement filed herein by the court, it was proven by the records of this court that the former action, referred to in the said plea was for the identical cause of action embraced in this suit, and between the same iden-tioal parties; and also, that tie said former suit mentioned in the said plea in abatement liad been disoon-tinned by the said plaintiffs after filing of the said plea in abatement, and before replication filed to the said plea; and npon the trial of the truth of the said plea by said court, the court decided the said issue in favor of the said plaintiffs, to which decision of the court the said defendant excepted; and thereupon the said plaintiffs moved the court to render final judgment against the said defendant, which motion was opposed by said defendant, who moved the court for leave to plead to the action, but the court refused to allow the said defendant to plead to the said action, and rendered final judgment in favor of said plaintiffs, and directed the clerk to assess the damages of said plaintiffs, to which decision of the court the defendant also excepted,” etc.

Inasmuch as the transcript of the record is thought to be deficient in some particulars, but the defect covering only so much as might affect the order of the court directing the clerk to assess the damages, we deem it inexpedient to give any opinion upon that part of the case, and pass on to the remaining points, to wit, the plea in abatement and the judgment of the court upon that plea. The fact conclusively appears, from the bill of exceptions, that the two suits were between the same parties and for the same cause of action. In relation to such a state of facts, the law, as advanced in 1 Bacon’s Abr., letter M, page 22, is thus expressed: “The law abhors multiplicity of actions, and, therefore, whenever it appears on record that the plaintiff has sued out two writs against the same defendant, for the same thing, the second suit shall abate; for if it were allowed that a man should be twice arrested or twice attached by his goods for the same thing, by the same reason he might suffer in infi-nitum; and it is not necessary that both should be pending at the time of the defendant’s pleading in abatement, for if there were a writ in being at the time of suing out the second, it is plain the second was vexatious and ill ab initio.'1' Again, it is said in Story’s Pleading, 26, npon tlie authority of 8 Burr. 1434: “If two suits are pending for the same cause of action, and it does not appear which writ issued first, both must abate.” Also, a person cannot, by discontinuing a suit after a plea in abatement of the pendency of another suit for the same cause, obviate the effect of such suit, because it is not necessary to the validity of the plea that such action should be pending at the time of the plea pleaded, but only at the time of the commencement of the second suit, and, therefore, a replication of a discontinuance or nonsuit in such prior action, whether commenced by the plaintiff himself or (as in case of qui tam actions) by a stranger, will be bad. Upon this branch of the case particular reference is made to the opinion of Pabsows, C. J., in Commonwealth v. Churchill, 5 Mass. 175, where the subject is treated with great ability, and the authorities are extensively referred to.'

It appears from the investigation of the case at bar, that plaintiffs supposed that, although the plea of the defendant in abatement was true at the time when it was pleaded, yet they could, nevertheless, obviate its force and effect by discontinuing the former suit, before replication thus pleaded in abatement of the latter, and then try the truth of the plea by the facts, not as they stood when the plea was pleaded, but as they stood after the discontinuance ; a state of facts brought about by themselves in order to defeat the effect of the plea. Upon this state of facts the truth of the plea was tried and found against the defendant and for the plaintiff. In this, we think, the court erred, and we think so upon the strength of the authorities hereinbefore referred to as well as a great many not directly noted in this opinion. The finding we think. should have been for the defendant. It is true that there are some decisions adverse to those npon which we rely, but, upon examination we think the weight of authority is clearly with the view which we "take of the case.

In this case the truth of the plea was tried by the record, and the court finding, that after plea and before replication the former suit bad been discontinued, gave final judgment for the plaintiffs and refused to allow the defendant to plead over, and ordered the clerk to assess the plaintiff’s damages, which was accordingly done.

If the defendant pleads in abatement and the plaintiff joins issue upon it, if the issue is found for defendant the suit abates. But if it be found against the defendant; final or peremptory judgment shall be given against him.’ 2 Wils. 367; Ld. Raym, 338, 594; 1 Vent. 22; 2 Salk. 211, A., in notes. “ But it seems if the issue is tried by certificate, or by inspection, or by- the record, or in any other way than by a jury, the judgment, if for the plaintiff, will be that the defendant answer over.” 1 Lev. 163; id. 178; Ld. Raym. 550; Story’s Plead. 31; 1 Chitty’s Plead. (8th Am. ed.)464, notel; Com. Dig. “Abatement,” 1, 14; Steph. Plead. 104, 105. Upon these authorities, had the finding of the court been correct upon the facts, the judgment was wrong, since it should have been that the defendant answer over.

We therefore reverse the judgment of the district court and direct that it be so certified to said court for further proceedings according to law.