text:
    Barker vs. Baxter.
    1. Justice’s court—jurisdiction—balance due. Under the statute (Wis. Stat. 322, § 10) which limits the jurisdiction of justices of the peace to cases wherein the debt or halanae due, or damages claimed shall not exceed $50, inclusive of interest, the words “ balance due ” mean the sum found due by the creditor and debtor, after an actual statement and settlement of their accounts.
    2. Same. A justice of. the peace has no jurisdiction of an action founded upon an account exceeding $50, although there are credits which reduce it to less than that sum; the amount of the account sued, and not the balance claimed, being the test of jurisdiction.
    3. Same. Where an action was brought before a justice of the peace on an account exceeding $50, and the recovery also exceeds that sum, the plaintiff cannot bring his case within the jurisdiction of the justice by remitting the excess.
    4. Appead. Where a justice of the peace had no jurisdiction of the subject-matter of an action brought before him, the district court will not have jurisdiction, on appeal from his judgment.
    ERROR to the District Court for Dane County.

      Barker sued Baxter before a justice of the peace, and filed his bill of particulars claiming $99.04, and gave credits to .the defendant to the amount of $64.53, and claimed judgment for the balance. The case was tried before a jury and the plaintiff recovered $57.07. He remitted the excess over $50. The defendant appealed to the district court, and in that court moved to dismiss the cause, because the justice of the peace had not jurisdiction to try and determine an action where the amount claimed exceeded $50, and the district court sustained the motion.

      A. Botkin and A. L. Collins, for plaintiff in error,
    contended that it was the balance claimed which was the test of jurisdiction, and not the aggregate of the entire amount of the plaintiff’s account or demand, and cited Stat. of Wis. 322, § 11; 1 Cowen’s Treat. 29, 30.

      J. H. Knowlton and J. G. Knapp, for defendant in error:
    1. The district court properly dismissed the case for want of jurisdiction, as if the justice had no jurisdiction, the district court could not acquire it by an appeal being taken to that court. Wait v. Moore, 1 Bin. 219; Wright v. Guy, 10 Serg. & R. 227. In an action on an account the plaintiff’s claim extends to every item, and each item forms a part of the matter in controversy and must be investigated.
    2. The defendant may show that items of credit are stated too low by the plaintiff. All the authorities show that where the statute limits the jurisdiction of a justice to a certain sum claimed on an account, and the debit side exceeds such sum, the justice has no jurisdiction although the account is subject to a reduction by credits, so that the balance due may be less than the sum which is the limit of jurisdiction. Breneman v. Greenwalt, 12 Serg. & R. 29 ; Holden v. Higgins, 8 Penn. 469 ; Harrow v. Summers, 3 Litt. 460; Jeters, admr., v. Durham, 6 J. J. Marsh, 228; Clark v. Cornelius, Breese, 21; Bates v. Downer, 4 Yt. 178 ; Stevens v. Howe, 6 id. 572 ; Mattison v. Bloomfield, 10 Wend. 555.
   Irvin, J.

This case came up on error to the district court of Dane county, on a judgment given in favor of the defendant for costs on dismissal of the suit.

This action was commenced by a summons before a justice of the peace, to recover what was claimed as a balance due on an account which the plaintiff had against the defendant, which consisted of various items, and amounted to the sum of $99.04. To this there were credits given to an amount that left a balance of $34.51.

Before the justice (as a part of the history of this case) the plaintiff obtained a verdict of a jury for $57.07, and entered a remittitur of $7.07, and took judgment for $50, from which an appeal was taken to the district court. When the cause came on for trial there, the defendant filed the following motion: “And now comes the said defendant and moves the court to dismiss this suit, because the amount of items for which the plaintiff has declared (exclusive of credits) exceeds the amount for which a justice has jurisdiction ; ” which motion was sustained, and the suit dismissed at plaintiff’s cost, to which decision exception was taken, and to reverse which the cause is brought here on error.

The motion presents the only point to be considered.

By the ninth section of the organic law of the Territory it is provided, “that the judicial power of the Territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace.” It is further provided in said section, that “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. Provided, however, that justices of the peace shall not have jurisdiction of any controversy where the title or the boundary of land may be in dispute, or where the debt or sum claimed exceeds $50.” Such are the provisions of the organic law, which is a constitution to us.

By the tenth section of the law, page 322 of the statutes of Wisconsin, it is provided, that “every justice of the peace shall have jurisdiction co-extensive with the county for which he is appointed, of all actions of debt, covenant and assumpsit, and all other actions founded on contract, of trespass and trespass on the case, for injury to persons, or to real or personal property, wherein the debt or balance due, or damages claimed, shall not exceed $50, inclusive of interest.”

In this case the plaintiff claimed a balance as due, after allowing the credits as stated in his account, and, if the common parlance signification of the words balance due is to be the guide in the interpretation of the law regulating justices’ jurisdiction, then the plaintiff would have been entitled to have and maintain this action; but if such is not to be the interpretation, but instead thereof, the technical definition is to be given to the language used, that is, what is found due by the creditor and debtor after' a settlement of their accounts stated and acknowledged to be such, then he might not have and maintain this action, and the latter we take to be the true interpretation, for the correctness of which we refer to Clark v. Cornelius, Breese, 21; Bates v. Downer, 4 Vt. 178; Stevens v. Howe, id. 572; 3 Litt. 460; 8 Wend. 492; 16 Johns. 121; 1 Bin. 219; 1 Serg. & Rawle, 29; 3 Penn. 469; 6 Vt. 572; 10 Wend. 555.

Yery many of these cases are unnecessary to the decision of this case in any other way than showing the true boundary to the action of tribunals of inferior and limited jurisdiction. If this were not the true interpretation, then a tribunal, intended to be very limited (and very properly so too), might inquire into, and settle and adjudicate matters in business that involved the consideration of accounts to any amount, and that under the pretense of a balance due. We hold that if the account to be examined, in order to ascertain what is due, reaches beyond the sum of $50, the justice cannot entertain jurisdiction of it, although there are credits enough to reduce what remains properly to be paid, below the sum of $50. The debit and not the credit side of his account forms and gives jurisdiction.

Had the question been made when the case first reached the district court, even the finding of the jury before the justice would have been conclusive of the case, as it was for a greater sum than the justice had jurisdiction of; nor was it competent to the plaintiff, by remitting the excess, to bring his case within the justice’s jurisdiction ; and if the justice had not jurisdiction, the district court, sitting as an appellate court, could take none. We consider the case exceedingly plain, and must affirm the judgment of the district court, with costs.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    Merrill and another vs. Rollin.
    Wbit of Ebbob. A writ of error will not lie to an order overruling a motion for a continuance.
    The case is stated in the opinion of the court.

      J. U. Knowlton, for plaintiffs in error.

      John OatUn, for defendant in error.
   Miller, J.

At the first term a demurrer was filed by defendants. At the second term the plaintiff obtained leave to amend his declaration, when the defendant pleaded issuably and filed an affidavit and motion for a continuance. The affidavit is in the form prescribed by the rules of court for the continuance of a cause at the first term.

It is well settled that a writ of error does not lie upon an order overruling a motion for a continuance. The order of the court in this instance, was strictly correct. There is no error on the record, and the judgment must be affirmed, with costs.


text:
    Jones vs. Webb and others.
    1. Evidence — admissions. When an admission of a party is given in evidence against him, the whole of the admission, that which charges as well as that which explains or discharges, must he taken together.
    2. Same. Where it is proved that an account was presented to a party for payment, when he admitted that it was correct, hut said, at the same time, that he supposed that it had heen paid long.since hy another party for him, held sufficient proof of the account to authorize a recovery, and that there was nothing in the statement coupled with the admission to justify the inference that the account had heen paid.
    ERROR to the District Court for Dane County.
    The case is stated in the opinion of the court.

      A. L. Oollins, for plaintiff in error.

      John Gatlin, for defendants in error.
   Miller, J.

The defendants in error brought this action of assumpsit, on book account, for goods sold and delivered, against the plaintiff in error, in the district court for Dane county. At the trial, a witness was called by the plaintiffs, who testified “that some time in 1842 (before suit brought), he presented at the request of plaintiffs to the said defendant, a bill for merchandise, being the same, or a similar bill, and for about the same amount, and for similar articles exhibited' to witness, which bill so presented, the defendant then admitted to be correct, and at the same time said, “he supposed the bill was paid long since, as he had directed William Johnson of Mackinac, to forward to Webb, Douglass & Go. (the plaintiffs) a lot of fish in payment.”

The defendant’s counsel asked the court to charge that' “if it is proved to the jury, that the defendant admitted the account of the plaintiffs’, and at the same time said, he supposed the account had been paid long since, that the confession unsupported by other evidence is insufficient to maintain the plaintiffs’ action, as the entire acknowledgment must be taken as made. ’ ’ This instruction was refused by the court, for which error is assigned.

It is settled beyond dispute or doubt, that the whole admission of a party must be taken together—but this rule is not violated by the refusal of the court to charge as requested. It is not error in a court to decline to dissect or reason upon a point presented. The court may with propriety, answer the whole point affirmatively or negatively, without even giving a reason for such answer.

Admitting the correctness of an account, and at the same time positively saying that it was paid, is not sufficient proof of an admission, or assumption. Smith v. Jones, 15 Johns. 229. The same testimony that proved the assumption or claim proved its payment. But in this case, the defendant merely supposed the account had been paid, in the manner mentioned, which in the absence of proof of payment in that manner, may be properly considered as an excuse for the delay of payment. There was no error in refusing the instruction asked for and the judgment will be affirmed.


author: Irvin, J.

text:
    Vliet vs. Rowe.
    2. Evidence.. In.an action for slander for charging that the plaintiff had sworn falsely on the trial of a certain action, the plaintiff cannot recover without alleging and .proving that the alleged false testimony given by the plaintiff on such trial, was material to the issue therein; and the question of the materiality of such testimony is one of law to he determined by the court.
    1. Slander. To charge one with having committed perjury upon a certain trial is actionable, per se; hut to charge one with having sworn falsely is not, hut the attending circumstances may he such as to render such charge actionable.
    3. Pleading—notice—damages. Where in an action for slander the defendant pleaded the general issue, with a notice that he would prove the truth of the slanderous words, held, that the notice was not an admission of the matter charged in the declaration, hut if relied on it would preclude the defendant from giving all such evidence in mitigation of damages as would go to repel the inference of malice, or as related to the manner and occasion of speaking, and would operate as an admission of malice and might he considered in aggravation of damages.

      ERROR to the District Court for Milwaukee County.

      Yliet brought an action against Rowe for slander, in charging that Yliet had sworn falsely as a witness on the trial of a cause before a justice of the peace. The case is fully stated in the opinion of the court.

      A. W. Stow, for plaintiff in error.
    1. Where the charge of perjury is general with an allusion to judicial proceedings, the words are slanderous, and it is not necessary for the plaintiff to prove the materiality of the testimony which it was charged was false. Evidence, necessarily implies materiality ; testimony, may or may not be material. Jacobs v. Tyler, 3 Hill, 572; Thompson v. Lusk, 2 Watts, 17; Fowler v. Roberts, 12 Pick. 498; Coo. & Hughes’ Dig, 1283. The charge was general, in relation to the whole testimony and necessarily imputed perjury. It will not be presumed that a court would listen to the testimony of a witness when there was no part of it material.
    2. The court erred in ruling that the notice of justification could not be used to show malice.

      J. E. Arnold and John H. Tweedy, for defendant in error.
    1. In order that words should be actionable per se, they must charge a crime involving moral turpitude, and for which a party would be liable to legal punishment. Story’s Plead., title, “ Slander.” Young v. Miller, 3 Hill, 21. Charging that the plaintiff swore a lie or swore falsely, is not actionable per se. It was necessary to show on the trial the materiality of the alleged false statement to the issue on trial, when the party testified. 8 Johns. 109; 13 id. 78. The distinction in most of the cases is, that the court will intend after verdict that there was sufficient evidence before the jury to satisfy them of the materiality of the testimony. 1 Caines, 348 ; 1 Wend. 575 ; Power v. Price, 12 id. 500; 9 Cow. 30; 20 Johns. 344; 16 Wend. 450. If the evidence was immaterial, although it is charged to be false, the action cannot be maintained, because if immaterial he could not be punished. In this case there was nothing to show what the testimony was in relation to which it was charged that the plaintiff swore falsely, and the question of materiality of the evidence is a question of law for the court. 16 Wend. 450.
    2. Notice of special matter not relied on by the defendant, admits nothing, and cannot be used for any purpose by the plaintiff. Story’s Plead. 498 : 8 Johns. 109 ; Stat. of Wis. 209.
   Irvin, J.

This case came up on error to the district court for Milwaukee county, on a judgment given on a trial at the June term of this year.

The slander complained of by the plaintiff and charged against the defendant (although stated in all the modes and changes in which such matters may be set out in a declaration), was substantially that the defendant had charged the plaintiff with false swearing as a witness in the trial of a cause before a justice of the peace. The proof was, that “in October, 1852, the said defendant (referring to a trial before had before one Messenger, a justice of the peace, in which said Rowe was plaintiff, and the said Yliet defendant, in regard to some mill-irons and an account), the said defendant, in the presence and hearing of the witness and others, said to the said plaintiff: “ You swore to a lie in the suit before Messenger, and I can prove it by Esquire Prentiss; you swore false, and I can prove it.” It was further proved “ that on 14th of August, 1840, a cause was tried before Johu A. Messenger, a justice of the peace, in an action of assumpsit, in which the said Rowe was plaintiff, and the said Yliet was defendant, upon which trial the said Yliet was called upon by the said Rowe to testify, and was thereupon sworn as a witness in the cause, and did give evidence, and that something was said on that trial about an account and mill-irons.” Accompanying the general issue, was a notice to the plaintiff by the defendant, “that he would on the trial, give in evidence and insist that the said plaintiff, in giving his testimony on said trial before Messenger, had committed willful and corrupt perjury.” Under this notice the defendant gave no evidence, and the cause here resting, the court charged the jury as follows : “ That by the aid of the colloquium and averments in the declaration, the words “you have sworn to a lie, and I can prove it,” or “you have sworn false, and I can prove it,” became actionable. These words are not per se actionable; hence it becomes necessary to make out the case by necessary proof. It must appear on the trial, that a trial was had as set forth in the declaration, and that the plaintiff there testified or gave evidence material to that issue. In this case there is no evidence of the materiality of the evidence given by the plaintiff on that trial. The materiality of the testimony given by the plaintiff on the former trial is a matter of law for the court to determine. A notice of special matter is in ease of the defendant, and he can use it or not as he pleases. He may or may not rely upon it. It is not an admission of the matter charged in the declaration. The plaintiff is bound to prove the facts set forth in his declaration, or the facts necessary to make out his case, notwithstanding the notice filed. It is not a special plea that confesses and avoids. A notice when relied upon precludes all such evidence in mere mitigation as goes to repel the inference of malice, or relates to the manner and occasion of the speaking. A plea or’ notice relied upon, admits the malice and is properly to be used in aggravation.” The jury found a verdict for the defendant, and the plaintiff excepted to the charge of the court, the correctness or incorrectness of which is now the matter of inquiry, and more particularly that portion of it which declares it in this case incumbent on the plaintiff to prove the materiality of the evidence given by himself on the trial, at which the false swearing is alleged to have been done.

The charge of perjury is per se actionable, because it directly imports a crime for which a man may be punished. This proposition is so well established as to make a reference to authorities in its support wholly unnecessary.

The charge of false swearing (although in. common acceptation tantamount to a charge of perjury) is not actionable per se, but only becomes so by force of attendant circumstances. Perjury can only be committed by swearing falsely before a competent tribunal, and to matter material to the issue as that would imply the malice necessary to constitute the crime, but to swear falsely to matter not material (although highly reprehensible in a moral point of view), would be held to be an idle and foolish act, but wholly destitute of that ingredient (malice) so necessary to constitute the crime of perjury. And inasmuch as it is a principle of law, weE established, that a plaintiff must make out his whole cause of action, and regarding this as a necessary part of the plaintiff’s action in this case, it was incumbent on him to prove that the swearing alleged to have been false, was material to the trial in which it was done, and of the materiality of which the court was to determine. Vaughan v. Havens, 8 Johns. 109; Thompson v. Lusk, 2 Watts, 17; Chapman v. Smith, 13 Johns. 78; Power v. Price, 12 Wend. 500; Hopkins v. Beedle, 1 Caines, 347; McKinley v. Rob, 20 Johns. 357; Ross v. Rouse, 1 Wend. 475.

When we examine the evidence adduced in the district court by the plaintiff, in support of the charge of false swearing, we fuEy concur with that court, that there was no evidence of the materiaEty bf the testimony given on the trial before the justice of the peace. We also concur in the correctness of the balance of the charge, and affirm the judgment with costs.


author: Dunn, C. J.

text:
    Rogers vs. Bradford.
    1. Territorial courts — practice. The supreme court of this Territory is a court created by legislative authority, and in adjudicating cases arising- under the laws of the Territory must conform in its practice and course of decision to the laws of the Territory, and it is not bound by or subject to the restriction contained in the seventh article of amendments to the constitution of the United States.
    2. New trial — review op pacts. A review in this court of a decision of the district court refusing a new trial, is not a review of any matter once tried and determined by a jury, but an examination to determine whether the district court, in deciding upon the motion, exercised a sound legal discretion in the premises.
    3. Same. A decision of the district court, upon a motion for a new trial, is subject to review, upon writ of error, when a sound legal discretion has not been exercised according to the rules of law applicable to such motions.
    4. Waiver —- exceptions. It seems that a party by making a motion for a new trial, does not waive the benefit of a bill of exceptions already settled, unless the motion and the bill both embraced the same matters; and there is no objection to there being two or more bills of exceptions in a cause, and a motion for a new trial afterward, if they do not embrace the same matter.
    5. Conversion op trust punds. Where one receives money from another for a particular purpose and converts’ it to his own use, or uses it for a different purpose from that intended, or neglects or refuses to apply it to the purpose designated, it may be recovered back in an action for money had and received.
    6. Construction op written instrument. It is a question of law for the court to determine what facts are established by a written instrument given in evidence, and what obligations are imposed by. it.
    7. Principal and agent. An agent is bound to keep his principal informed of all material occurrences in regard to the subject of his agency, and if he fails to do so, he will be liable to his principal for such violation and neglect of duty.
    8. R. received of B. $1,000, "to invest for him in town lots or land, according to the best of his judgment, and when invested, to inform B. of it.” R. invested the money, with $1,000 of his, in land, taking the deed in Ms own name, and informed B. of the investment, but falsely stated that the deed had been taken in the name of both. It was claimed by R. that he afterward informed B. how the title had been . taken, and that B. assented to the transaction, and agreed that he should hold the title for B.’s benefit; but R. afterward mortgaged the land to secure his own debt. In an action brought by B. against R., to recover back the $1,000 and interest, held:

      1. That the act of R. in purchasing the land and taking the entire title in his own name, was not a proper execution of the trust, nor a legitimate use of the fund intrusted to him.
    3.That if B., with a full knowledge or the means of knowledge of the transaction, agreed that the purchase should stand, and that R. should hold the title for their joint benefit, he would be bound by the appropriation made of the fund.
    3. The misrepresentation by R. to B., his principal, of an important and material fact in relation to the transaction, was a fraud for which B. might have rescinded the agreement between them and recovered back his money in an action for money had and received.
    4. If B. confirmed the purchase, with a full knowledge of the facts, agreeing that R. should hold the title to the land for their joint benefit, and R. afterward mortgaged or conveyed the land to his own use, without the knowledge or consent of B., such act the law would regard as a fraud and a misapplication of the funds from the beginning, and the entire transaction, be regarded as an entire breach of faith. B. would be permitted to recover his money in an action for money had and received.
    5. If at the trial, evidence had been given to show that R. had mortgaged the land for his own debt, all evidence offered by him to show a confirmation of his acts by B., prior to the giving of the mortgage, should have been excluded; and a motion for a new trial, made by R., on the ground of newly discovered evidence, to prove that B. confirmed his acts in the premises prior to the date of such mortgage was properly denied.
    ERROR to the District Court for Milwaukee County.
    This was an action of assumpsit brought by Bradford against Rogers, and the declaration contained the common counts, to which the defendant pleaded the general issue. At the trial the plaintiff gave in evidence the following receipt :
    “Received, Milwaukee, 15th August, 1836, of Worling Bradford, one thousand dollars cash, to invest for him in town lots or lands, according to the best of my judgment, and when invested I am to inform him of the same.
    $1,000.
    (Signed) JAMES H. ROGERS.”
    It was proven for the plaintiff that defendant, the winter before trial, asked H. Williams if he knew a man who was at the Milwaukee House when he kept it, one Bradford; said he had $1,000 from him to invest in land, and that Bradford could have part of 70 or 80 acres up the river.
    That defendant said to B. H. Edgerton that he had received the money from Bradford to invest, and was ready to convey the land, and always had been.
    That the receipt was presented to defendant by A. Pinch, in whose and Mr. Wells’ hands it had been left for collection, and payment demanded in the spring of 1842, about six months before suit brought, when defendant said he could not pay it; that the money was received to invest in real estate; that he had invested it for Bradf ord ; that he did not take the deed in the name of Bradford; that he bought the land, putting in $1,000 of his own money with Bradford's, and took the deed in his own name; 80 acres up the Milwaukee river, near the mill.
    On the part of the defendant it was proven that plaintiff came to Milwaukee in the summer of 1836, and in the fall of that year, after his return to Perrysburg, Ohio, where he lived, he said that he had seen defendant at Milwaukee, and left $1,000 with him to invest in town lots or lands, and wanted to send some one out to look to the investment; witness (John Weston) was then about starting, and plaintiff’s brother Ira talked of coming. Plaintiff stated that he had received a letter from defendant stating that he had bought lands for him, and plaintiff requested Weston and his brother to look up the lands when they came out; wanted Weston to write to him about it, and said Weston might go on the land and live on it; Weston and Ira B. came out in fall of 1836, and Weston saw defendant upon his arrival, who told him where he had laid out plaintiff’s money ; Weston was much at defendant’s mill on Milwaukee river and worked for him; when at the mill, in 1836, defendant pointed across the river and said, “there lies Bradford's money,” and said that B. and himself had 80 acres there; told Weston to keep an account of the logs cut upon the tract, that he might settle with plaintiff; IraB., after he came out, cut logs on the land; Weston told Ira, in winters of 1836 and 1837, to write to plaintiff that defendant was cutting too many logs on the land; Weston kept an account of logs cut; plaintiff came out to the Territory in summer of 1838, and was at Weston’s house two miles up the river and stayed nine days; plaintiff wanted to see the land; Weston told him all defendant had done about it; showed him the land; they walked over it and spent some time looking at it; plaintiff appeared satisfied and said so, and was only dissatisfied with defendant for cutting so many logs; Weston told plaintiff he had kept an account of the logs; nothing was said about the title; Weston and defendant had cut about four hundred logs; Ira B. took an account of the logs when he returned east in 1837; the land was cheap enough at $2,000 in 1836.
    Defendant produced a deed duly executed, dated 1st September, 1836, from James Wood and wife, to defendant, for 83^. acres of land, being the undivided half of lot 5, N. W. i, sec. 9, T. 7, R. 22, and recorded the same day, proved that the land was entered by Wood, and lay opposite to defendant’s saw-mill.
    H. Crocker testified that about 5th August, 1841, he, th® attorney for defendant, tendered to A. Finch, attorney for plaintiff, defendant’s deed to plaintiff for one-half the land. Finch did not receive the deed, but said, “I presume it is all right; I will write to Bradford.”
    Plaintiff produced two letters from defendant, one dated 22d September, 1836, in which he said, “I have laid out your money in the purchase of eighty-four acres of land near town, for which I gave $2,000 in cash, and have a good deed for the same in my name and yours. The land I have been offered $35 per acre for, but I think I shall hold on to it for the present, as I am confident it will fetch $50 in the spring. I shall not sell until I hear from you, or you come on in the spring.”
    The other was dated 6th November, 1836, in which defendant said, “I wrote you on the receipt of your letter, informing you that I had invested your money in eighty-seven acres of land, with $1,000 of my own, which has advanced considerable. I can sell it for $35 per acre.”
    The plaintiff gave in evidence a mortgage dated Sept. 25, 1839, from defendant to one Tomlinson, including this land with other tracts to secure the payment of $2,000.
    The court charged the jury:
    “By the receipt in evidence the defendant promised to invest the $1,000 in lots or lands for the plaintiff. By the receipt, Rogers should have purchased the land in the name of Bradford, and taken a deed in the name of Bradford ; taking a deed in his own name alone is not a proper execution of the promise, and is not an application of the fund.
    But it was competent to Bradford to confirm the act of Rogers, and to agree that the purchase they made would stand in Rogers’ name for his use; if the plaintiff did so with a full knowledge of the transaction and of his own rights, then the promise was executed, and the plaintiff will be bound by it.
    To bind the plaintiff on the score of acquiescence, it must appear satisfactorily to the jury, that the plaintiff had a fall knowledge of, or the means of knowing his rights. If the application of the funds has been thus acquiesced in by Bradford, or confirmed by him, then the fund has been disposed of, and has been invested. The giving of a mortgage afterward by Rogers upon this land to a third person, will not entitle the plaintiff to recover in this action for money had and received.
    The defendant excepted to that portion of the charge by which the jury were instructed, that the taking the title to the land purchased in the name of the defendant alone, was not a proper execution of the power, and was not an application of the funds received from the plaintiff. Yerdict for the plaintiff for $1,482. A bill of exceptions was signed stating the foregoing facts. The defendant afterward moved for a new trial, on the ground that the verdict was contrary to law and the evidence; that the charge of the court was erroneous in point of law, and of surprise at the contents of his letter of September 26, 1836, and of newly discovered evidence. In support of this motion the affidavit of the defendant was read, stating in substance, that at the time of the trial he was confined to his house by sickness and unable to attend court; that he had used due diligence to prepare for trial and to obtain evidence to show the acquiescence of the plaintiff in his acts as his agent, and in taking the title to the land in his own name, which he averred to be true, and stated in detail the nature and kind of diligence used; that he relied mainly upon the two letters read in evidence at the trial which the plaintiff’s counsel had stipulated to produce, but he had seen only one of them sinc'e they were written; that he was entirely surprised at learning that one of said letters stated that he had taken a good deed in his name and the plaintiff’s for the land, and stated that these words were written through inadvertence or great haste, and that if the plaintiff received a false impression from this letter he was soon undeceived, and had defendant been aware of the language in said letter he would have filed a bill of discovery to establish his defense ; that after the trial he discovered that his brother Jacob M. Rogers, who lived at almost fifty-five miles from Milwaukee, had had frequent conversations with the plaintiff on the subject of said investment and the land in question, and that he would be able to prove by him the several matters stated in the affidavit of said Jacob M. Rogers on file in the case, and that he was ignorant of the fact that his brother Jacob M. had had any conversations with the plaintiff in regard to the transaction in question, until after the trial. The affidavit of Jacob M. Rogers states in substance, that in August, 1836, the plaintiff staid one night at his house and told him he had left $1,000 with James H. Rogers to lay out for him in lana ; that in July, 1838, the plaintiff came to Milwaukee and staid one or two weeks ; that he came to deponent’s house, and he had a talk with bim about the investment in question, and the plaintiff said he was going to see the land; that he returned, stopped at deponent’s house and conversed with him fully and freely about it; that just before plaintiff left Milwaukee he passed a night at deponent’s house, and they had much conversation about the matter, that plaintiff expressed himself as satisfied with the investment, and thought it was a good one, and he said James H. Rogers, the defendant, had the deed in his own name and had offered to give him, Bradford, a deed of it, but he thought he would not take it then, but preferred that Rogers should have it in his own name, and dispose of it to the best advantage, as he Rogers thought best; and that much more was said to the same effect, and that Bradford talked over the matter several .times with deponent, and that deponent never told James H. Rogers of these conversations, nor had any conversation with him on the subject of the suit with Bradford, and that he did not know or think that James H. Rogers knew any thing about these declarations until after the trial of the cause, when he informed him of these facts.
    The district court overruled the motion for a new trial and rendered judgment on the verdict in favor of the plaintiff. The defendant excepted to the ruling and procured another bill of exceptions to be settled and signed, embracing these facts.

      Peter Tates and John II. Tweedy, for plaintiff in error:
    1. The district court erred in charging the jury that there was any evidence to support the common counts, because an action for money had and received, could not be maintained, and the action should have been on the special agreement, which was still subsisting, open and not rescinded. 1 Car. and P. 18 ; Doug. 23 ; 1 Term, 136 ; 7 id. 177; 5 East, 449 ; 7 Johns. 132; 12 id. 274; 13 id. 94; 14 id. 326 ; 18 id. 456 ; 19 id. 205 ; 5 Mass. 391; 1 Tyler, 182; 2 Munf. 344; 1 Bibb, 395 ; 5 Ohio, 380.
    2. Bradford had possession of the land by his brother and received accounts of the logs cut upon it. He did not attempt to rescind until six years after the investment, and availed himself of the chance of the rise in value of the land, and all the time treated the contract as still subsisting. A party having the right to rescind, must rescind wholly and in a reasonable time, and he affirms the contract by receiving any advantage under it, and where there has been a partial execution of the contract and a benefit derived under it, the contract cannot be rescinded so as to bring this action. Chitty on Cont. 311, 622, 633, 741 and notes; Strange, 406.
    3. The court erred in charging the jury that the land should have been purchased in Bradford s name and that his name should have been included in the deed, and that taking a deed in the name of Rogers alone was not a proper execution of the promise or a proper application of the fund.
    The whole matter of the investment and the manner of making it were left to the discretion of Rogers. Bradford made him trustee of the fund, with full power and the widest latitude of discretion, and if Rogers used the money in the purchase of lands for the benefit of Bradford, in good faith and with ordinary discretion, the trust was so far executed and there was no misapplication of the fund, and it made no difference in what manner, or in whose name the title was taken, provided Rogers was ready and able to pass it on demand. Rogers held the naked title as his trustee until he called for it, as he would for his title papers. He was ready to deed it at all times ; he could have been compelled to make one, and if he had died or became insolvent, the land remained Bradford) s, as against the creditors or heirs of Rogers, and if he had sold it he could follow the proceeds or sue for the conversion of the proceeds and damages. 2 Sugden on Vendors, 173-178; 2 Story’s E(p 443-445, 506 etseq.; 7 Mass. 36. It was competent for Rogers to completely fulfill his trust by conveying the title to Bradford. He tendered a deed one year before suit and no objection was ever made to it.
    4. The purchase as made, was acquiesced in and confirmed by Bradford. If a principal with knowledge of the facts, adopts or acquiesces in the acts of his agent, however unauthorized, he cannot afterward impeach them, though they were contrary to his instructions, and when he is informed of what has been done, he must dis: sent and give notice of it within a reasonable time, otherwise his assent will be presumed. 2 Kent’s Com. 616; 12 Johns. 300 ; 1 Caines, 526 ; Story on Agency, 246, et seq.

      Bradford did not dissent until six years after the investment and five years after examining the land, nor until one year after a deed is tendered to his attorney.
    5. The court erred in refusing to grant a new trial. The testimony was discovered after the first trial; it was not known and could not have been obtained on the former ' trial; it was material to the issue, and went to the merits of the action, and was not cumulative. Graham on New Trials, 465-469, 491-493 ; 6 Pick. 114, 417 ; 4 Wend. 579 ; 6 Greenlf. 479 ; 10 Wend. 285 ; 24 Pick. 246 ; Doug, 797.

      W. P. Lynde and Levi Llubbell, for defendant in error.
    1.The decision of the court below upon the facts cannot be reviewed by the method adopted in this case. A fact once tried by a jury cannot be inquired into or reviewed except according to the course of the common law. Const. U. S., art. 7, Amend. ; 2 Sum. C. C. 19 ; 3 Peters, 433 ; 2 Binney, 89. Wisconsin Territory is a part of the federal government and is subject to its laws. The remedy in such case is by mandamus. 10 Wend. 225.
    2. There are two bills of exceptions, and the defendant cannot prosecute his remedy against the verdict without abandoning his first bill of exceptions. 2 Tidd’s Prac. 683, 913; 5 Mason, 173. And in case of a motion for a new trial the court cannot look into previous exceptions, but is confined to the questions arising on the motion.
    3. The evidence fully sustains the verdict and shows fraud and misapplication of the plaintiff’s money. The defendant wrote to the plaintiff a false account as to the way the title was taken ; he cut the timber off the land and never accounted for it, and mortgaged it for his own debt, and he made no explanation of these matters.
    4. The action is properly brought. If A pays money in advance on a special, contract to B, it becomes B.’s money, and A must seek his remedy on the contract; but if A deposits money with his agent to be appropriated and used in a particular manner and it is used for an entirely different purpose, A can maintain an action for money had and received, and in every case where there is a trust or agency, and it is not fulfilled or the money is not applied to the purpose of the trust, the law raises an implied promise to repay it, and it may be recovered in this form of action. 4 Cowen, 610 ; 8 Bing. 14. And while the plaintiff might have resorted to a bill in equity for a conveyance of the land, yet he was not bound tó do so, but could recover for money had and received. Ham. on Prin. and Agent, 375, and cases there cited; 1 Harrington, 446.
   Dunn, C. J.

Error is prosecuted in this case to the judgment of the district court of Milwaukee county, at the last November term.

There are certain preliminary questions to be settled in this case, before we consider the grounds of error, presented by the exceptions taken at the trial. It is contended by defendant in error that this is a constitutional court, and by the provisions of the seventh article of the amendments to the constitution of the United States, can review matters once tried by a jury only according to the course of common law.

The supreme court of the Territory of Wisconsin, while adjudicating in cases arising under the laws of the Territory, is a legislative court, must conform its decisions to the laws of the Territory, and is not subject to the restriction referred to in the said seventh article of the amendments to the constitution, as would be the case, were it deciding causes arising under the constitution and laws of the United States. 1 Peters, 546.

We understand however, that the examination in this court of an error alleged against the opinion of the district court in refusing to grant a new trial, is not a review of any matter once tried by a jury, but of the opinion of the court in the exercise of a sound legal discretion; a subject which had not in any wise been considered by the jury.

It is now well settled that this discretion must be a sound legal discretion, and is therefore the subject of error when exercised against the rules of law applicable to new trials. The statutes of the Territory require this court to review errors on motions for new trial. Revised Statutes, 196.

There are two bills of exception in this case, and it is insisted that the plaintiff in error cannot be permitted to rely upon the bill taken before the motion for a new trial was submitted; that the motion waived the exceptions, because plaintiff in error could not rely upon both remedies at the same time. There might be some reason for this position, if the motion embraced the same points excepted to in the bill; without this, there is certainly nothing to sustain it. In legal reason and practice, there can be no objection to two, three or more bills of exceptions, or a bill of exceptions and motion for new trial after, if they do not embrace the same matter. The only case cited against entertaining a motion for a new trial, until a bill of exceptions is waived, is in 5 Mason, 173. Judge Story there stated it to be the practice of the .circuit court of the United States for the first circuit, “not to entertain a motion for a new trial, unless the bill of exceptions is waived.” The reasons for this practice there assigned, plainly demonstrate, that it applied only in cases where the motion and bill of exceptions embrace the same matters. Nothing is relied on to support the rule but the authority of practice.

A very different practice obtains in the courts of many of the States of this Union, and being of opinion that a party should have the advantage of his exceptions and, motion for new trial also, if they possess merit, we incline to the practice of allowing the exceptions and motion. However, conceding to the practice stated by Judge Story all the merit which can be claimed for it, the point in the case at bar is not sustained by this practice. In this case the bill of exceptions was not waived, still the court considered the motion and overruled it upon other grounds, for aught that appears of record. The correctness of this practice, will not be here questioned, but we will take up the case as it is presented by the record.

It is assumed by plaintiff in error, that if it appear from the record, that the defendant in error (plaintiff below) has not presented to the district court such a case as would entitle him in law to recover, in the form of action chosen by him, then this court would reverse the judgment, although the objection was not taken by demurrer or otherwise in the district court. To this principle we assent, and will examine the objections to the plaintiff’s right of recovery, in the form of action which he has adopted in this case. It is contended, that the receipt introduced on the trial of this cause by plaintiff (below) as evidence, in these words-: “Rec. Milwaukie, 15th Aug., 1836, of Worling Bradford, one thousand dollars cash, to invest for him in town lots or lands, according to the best of my judgment, and when invested I am to inform him of the same. (Signed) James H. Rogers.” —proves a special contract between the parties in relation to the $1,000 ; and that the plaintiff (below) cannot recover the same in assumpsit on the common counts.

The court does not understand the position as being within the principle assented to. This receipt’ is only matter of evidence and not the foundation of the action, it might have been introduced either by plaintiff or defendant to show the receipt of the money, and for what received, and is not a part of the record of the plaintiff’s • case as contemplated within the principle. The production of such a special agreement, as evidence on the trial by either plaintiff or defendant (below) does not compel plaintiff to resort to his action on the special agreement, as the doctrine is well settled, that a misapplication of the fund under the agreement rescinds it, and entitles the plaintiff to recover in an action for money had and received ; and where plaintiff relies upon a misapplication of the fund to recover for money had and received, no other form of action could be adopted. Where one receives money for a particular purpose, and applies it to his own use, or to a different purpose, or refuses or neglects to apply it to the purpose designated, it may be recovered back in an action for money had and received. Wales v. Witmore, 3 Dal. 252; M’Neally v. Richardson, 4 Cow. 607; Dunman v. Carpenter, 8 Johns. 183; Guthrie v. Hyatt, 1 Har. 446.

Having disposed of these questions, we now come to the prominent grounds of error assigned in this case. The last branch of the. first instruction of the district court to the jury is excepted to. The instruction is in these words : “By the receipt in evidence the defendant promised to invest the $1,000 in lots or lands for the plaintiff. By the receipt, Rogers should have purchased the land in the name of Bradford, and taken a deed including the name of Bradford. Taking a deed in his own name alone, is not a proper execution of the promise, and is not an application of the fund.” It is a question of law for the court to decide, as to what facts are established by a written instrument permitted to be read as evidence on the trial of a cause, and what legal obligations are imposed on the party or parties thereto. They are not facts in pais, to be inquired of and settled by a jury, but legal results from a state of facts presented in a deed or instrument in writing, proven and established by the instrument, and no longer a subject of doubt or inquiry. The court may err in the legal deduction drawn, but not by instructing on the subject-matter. The inquiry arises, did the court err in the last branch of this charge to the jury ? It is clear that the branch of the instruction which asserts the legal conclusion, “that the taking of a deed in his (defendant’s) own name alone, is. not a proper execution of the promise, and is notan application of the fund” was correctly given. The principles settled by the authorities last cited, and in Story’s Law of Agency, 137 and 140, establish the correctness of this charge. And the defendant so considered it, because he introduced evidence, as appears from the record, tending to prove that plaintiff confirmed the application of the fund in this manner.

The district court properly instructed the jury that the plaintiff could confirm the act of defendant, and agree that the purchase made by him should stand in his, dedefendant’s, name for the plaintiff’s use. And if the plaintiff did so with a full knowledge of, or the means of knowing the transaction and his own rights in connection therewith, then the promise is executed, and the plaintiff bound by it.

The second exception is to the opinion and decision of the district court overruling the motion for a new trial, and error is assigned thereon. The reasons insisted on are:

1st. The verdict was contrary to law and the evidence in the case, and should have been for the defendant instead of the plaintiff.

2d. That the charge of the court to the jury on the law, as applied to the facts of the case, was erroneous, and influenced the jury to find a verdict for the plaintiff when it should have been for defendant.

3d. That the court erred in charging the jury, that the taking the deed by Rogers, the defendant, in his own name, was not a proper execution of the promise, and was not an application of the fund.

4th. Surprise of defendant.

5th. Newly discovered evidence.

In the consideration of the error assigned on the overruling of this motion, is involved the merits, as well of the plaintiff’s case made out at the trial as of the defense set up, and sought to be strengthened by the newly discovered evidence presented in the motion.

It is a well settled rule, that an agent is bound to keep his principal informed of all material occurrences in the agency; if he faff to do so, it is negligence, and a palpable violation of duty for which the factor is clearly liable. This general principle required the defendant to inform the plaintiff how he had invested his money. His receipt also obligated him to do it. Therein he promised to invest the money for defendant in lands or town lots, and when invested, to inform plaintiff. Instead of taking the deed in the name of the plaintiff, which he ought to have done, and which was necessary in making the investment for plaintiff, he took it in his own name, and advised or informed the plaintiff that he had taken the deed in his and plaintiff’s name, which, by his own showing on the trial, was not true. There was not only a violation of duty and breach of faith, but a willful misrepresentation of a most material and important fact. The defendant in this case promised to transact a single piece of business, without discretion, except as to the value of the property purchased in reference to a good bargain, and he was bound to fulfill the promise to the letter. Harvey v. Turner, 4 Rawle, 223, 229; Toland v. Murray, 18 Johns. 24; Hubbard v. Elmer, 7 Wend. 446; Hampton v. Specknagle, 9 Serg. and Rawle, 212; Courceier v. Ritter, 4 Wash. C. C. 549; Kingston v. Wilson, id. 310; Jackson v. Baker, id. 394; White v. Skinner, 13 Johns. 301; Randal v. Van Vechten, 19 id. 59; Taft v. Brewster, 9 id. 334; Tippits v. Walker, 4 Mass. 595; French v. Reed, 6 Binney, 308; Walker v. Smith, 4 Dal. 389.

It would have been difficult in this case to have made the defendant responsible to the plaintiff, if he had purchased for plaintiff, lands or lots not worth the purchase money given, or in other words, had made a bad bargain, because this was referred to the best judgmeat of the defendant; and to make him liable it should appear that he exercised a perverse and willful judgment against reason, to the prejudice of his principal. He had no discretion as to the kind of property to be purchased, or as to the person for whom purchased; in these respects he was positively limited, and a departure from his obligation in either, made him immediately liable to plaintiff. The misrepresentation by defendant, of an important and material fact, to his principal, unexplained, was a fraud upon him, and at his election would rescind in tato the agreement between them, and entitle the principal to recover for money had and received. These principles are obvious, and were evidently admitted by defendant on the trial, for Ms testimony and evidence on the trial go to obviate their legal effect on Mm, by an attempt to prove that plaintiff, with a full knowledge of his rights, or the means of knowing, confirmed the acts of his agent, the defendant. The legal questions arising in this case seem to be conceded up to the evidence tending to prove confirmation by plaintiff, of the acts of the defendant. It is indisputable that plaintiff might have confirmed the acts of his agent, and agreed to derive benefit under these acts. This implies that plaintiff had knowledge of his rights or the means of knowing, and that the defendant assented, that the land conveyed to him by deed should be held by him for plaintiff’s benefit, otherwise there would be no consideration for the confirmation, and the law will not presume that plaintiff confirmed these improper acts of his agent, without securing to himself the benefit originally intended both by plaintiff and defendant.

Now the court will assume this position, as sustained by reason, justice and law. If full proof were made of confirmation by plaintiff, with a knowledge of his rights, or the means of knowing of the acts of his agent, the defendant, agreeing that defendant should hold the land in Ms name for plaintiff’s use, the defendant assenting, because the confirmation would be complete and perfect only on such, or equivalent terms, and the defendant afterward conveyed the land for his own use and benefit, the law would declare this latter act of defendant a direct fraud against the agreement of confirmation, and additional evidence, most forcible in its character, of fraud on the' plaintiff, and misapplication of the fund ah initio ; the assent to the confirmation by defendant a mere pretext ; and the subsequent conveyance by him a consummation of his improper and illegal conduct in the investment throughout. The law, with this state of facts, would rescind ■ the agreement in toto, considering the whole transaction .as one act or breach of faith and misapplication of the fund, and permit the plaintiff to recover for money had and received.

The charge of the district court in answer to an abstract proposition, that the giving of the mortgage (if the plaintiff had previously consented to and confirmed the purchase) would not, of itself, enable the plaintiff to recover in this action for money had and received, was asked for by defendant (plaintiff in error), is not excepted to, and of course, not subject to revision here as error. This court is of opinion, however (and so the district court must have considered on the motion for a new trial), that a mortgage is not only a lien for a debt, but is a transfer of the property itself as a security for the debt. This must be admitted to be true in law, and it is equally true in equity, for in this respect equity follows the law. The estate is considered as a trust, and according to the intention of the parties, as a qualified estate and security. When the debt is discharged there is a resulting trust for the mortgagor. It is therefore, only in a loose and general sense that it is sometimes called a lien, and then only by way of contrast to an estate absolute and indefeasible. Conrad v. The Atlantic Insurance Company, 1 Pet. 441; Bronson v. Kinzie, 1 How. 311.

If the mortgage by defendant to Tomlinson of this land (said to have been purchased partly for plaintiff’s use), executed and delivered in 1839, after the supposed confirmation, had been, introduced as evidence, before the defendant introduced any testimony tending to prove confirmation previously by plaintiff, we are of opinion that the district court should have excluded all testimony on that point, the after mortgage by defendant, being to our minds, conclusive against him. The plaintiff could not pursue the land in Tomlinson with his equity, unless he could show that Tomlinson had a full knowledge of Ms right before the delivery of the mortgage to him. So, at most, he had but a hypothetical equity.

In this view of the case, the surprise and newly discovered evidence, as set out in the affidavits accompanying the defendant’s motion for a new trial, could avail nothing, and of course, afford no sufficient legal reason for granting a new trial. It is not necessary to consider here whether the newly discovered evidence or testimony is cumulative or not; or the objection to such testimony, that it is the testimony of a relative, proving the private acknowledgments of the plaintiff, and the various legal rules which influence a court to set aside a verdict and award a new trial, as tMs court is of opinion that there is neither error in the charge of the district court excepted to, nor in its decision and judgment overruling the motion for a new trial.

The judgment of the court below is affirmed, with interest thereon at the rate of seven per cent, per annum from the date of the judgment.


text:
    Merrill vs. Guthrie.
    Indorsément— Pwrtn&rsMp.

    Where copartners are the payees of a promissory note, they may indorse the same to one of them, so as to enable that one to maintain an action thereon as such indorsee against the maker.
    ERROR to the District Court for Milwaukee County.
    The case is stated in the opinion of the court.

      Peter Tates, for plaintiff in error.

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

This case came up on error to the district court of Milwaukee county, on a judgment given at its June term, 1843, in favor of the plaintiff for the sum of $607.29, with $18.46 costs.

The declaration is in the usual form, and has the usual number of counts in this form of action, and is brought on a note of which the following is a copy:

“$585: Messina, March 10, 1835.
Ninety days from date, we jointly and severally promise to pay, to the order of Kinney and Guthrie, $585 at the Ogdensburgh Bank, value received.
CALEB P. HAILEY,
DAYID MERRILL.
Indorsed: £ £ Kinney and Guthrie,
SaelceWs Harbor.
Pay D. C JUDSON, Esq., or order.
W. H. ANGELL,
Cashier.

This suit is brought against one of the makers of the note, and the plaintiff is admitted to be the same person named in the note as one of the firm. It is admitted, as well as proven, that the intermediate indorsers had no interest in the note (it having been with them merely for collection), which narrows this case down to the point in question (and which alone was relied on in the argument), whether a firm can, by indorsement to one of its partners, pass a right to him to have and maintain an action against the maker, in his own name.

The court below was asked to charge the jury) “that inasmuch as the plaintiff could not, at law, sue and recover against his indorser, the indorsement being absolute and without exception, the indorsement by the firm, though actual, passed no title to the plaintiff, and he could not recover as indorsee against the maker,” which charge was refused; but the court did charge, among other things, that “two partners, payees of anote, could indorse the same to one of them, so as to enable that one to maintain an action in his own name, as indorsee against the maker,” which charge is excepted to, and is the foundation of the present inquiry.

The defendant in the court below, in his motion for instructions to the jury, appears to set out with a proposition in law as settled, to wit: that, where one of a firm becomes the indorsee of that firm, he cannot sue and recover against his indorsers, and seems to conclude therefrom that he has no right to recover of the maker. With the correctness or incorrectness of this proposition, the court deems it unnecessary to the case at bar to have any thing to do, but not so with the conclusion. It is true, that there are many consequences flowing from the act of assignment in other and ordinary oases, which do not arise in this case, which are not necessary to be otherwise noticed; and, although the act of such an assignment as this might, from the very nature of the circumstances attendant upon it, raise many and great objections to the establishment of such a doctrine in the first instance, yet as this is not the first instance, and as the doctrine, whether wisely or unwisely, is settled, we must take it as we find it, and apply it to this case as we understand it to be.

In 16 Mass. 314, in the case of Russell’s Exrs. v. Swan, this question is decided, and Pabkeb, C. J., in his opinion, says : “It is certainly competent for partners, or other joint payees of a negotiable note, to assign it to one of the firm, or one of the joint payees, with the same effect that an assignment to any other person would have.” The learned judge, in the opinion just cited, gives neither reason nor authority, but speaks with that confidence which could alone be entertained in the absence of all doubt. Perhaps if he had been asked for the reason, he would have replied, “ it is by the lex mer catoria, the evidence of- which is long, constant, and continued usage.”

The same doctrine is held in 5 Cow. 688. It is also held in 1 Bos. & Pul. 546, 547. In 1 Caines, 505, it is held that “one partner may by indorsement made by himself in the name of the partnership, entitle himself to sue as indorsee upon a negotiable note given to the partnership.” “ A firm may negotiate its own paper to one partner, and the latter will thereby become the owner thereof.” Baring v. Lyman, 1 Story’s C. C. 396. This court cannot hesitate to say, that the charge of the district court was correct, and that the judgment must be affirmed with costs-


text:
    Stout vs. Shew.
    1. Supplemental answer—laches. Where a defendant applied for leave to file a supplemental answer eleven months after filing his answer, and in the mean time a reference had heen ordered to take proofs and the cause had been continued at his instance to procure the testimony of an absent witness and a motion to amend his answer had been made and denied, and several terms of court had intervened, it was held,, that the application came too late and was1 properly denied on account of laches of the defendant.
    2. Parties bound to speed the cause. A complainant must speed his cause by all proper and permissible rules and orders to bring it to a final hearing at the earliest period allowed by the practice, and it is incumbent on the defendant to answer fully and promptly all rules against him and when the cause is at issue to take his testimony preparatory to a speedy and final hearing.
    3. Penal defense. A defendant will not be- allowed, under color of correcting an error, by supplemental answer to set up a new defense inconsistent with his former answer, nor will the court permit a supplemental answer to be filed setting up as a defense a penal law, by which the complainant’s right is to be affected.
    4. Supplemental answer. A supplemental answer must contain a meritorious defense and be consistent with and in explanation of the original answer.
    5. Supplemental answers are allowed as to small and immaterial matters or where a mistake has crept into the engrossment, or where new matter has been discovered since the original answer was put in, in case of surprise and of a mistake of names.

      APPEAL from the District Court for Milwaukee County.
    This was a bill to foreclose a mortgage.
    The defendant filed a sworn petition for leave to file a supplemental answer to the bill of complaint, and tendered a sworn answer embracing the facts sought to be set up, the substance of which is stated in the opinion of the court together with a history of the steps which, up to that time, had been taken in the cause. The petition alleged that since filing the original answer, and since the last continuance of the cause, the defendant had discovered that certain facts, which he was advised and believed constituted a good defense and which are contained in the supplemental answer - offered, ought to have been set forth in his original answer, but that they were not so set forth for the reason that his solicitor who drew the original answer entirely misapprehended his defense, although he had placed his exhibits in his hands and desired that they should be used in the way most proper for his defense: that the merits of his defense could not be reached upon the bill and original answer; that when the original answer was filed he was under the impression that the facts ought to have been stated therein as they are in the supplement, and was desirous to have sworn to his original answer in the sense in which he wishes to swear to the supplement, but did not do so on account of the misapprehension of his solicitor; that it is inequitable and unjust that he should be decreed to pay the mortgage money, or that the mortgage should be foreclosed, which he can make manifest if allowed to file his supplemental answer, and that the application for leave is not made for delay.
    The district court denied the application, and rendered a decree for foreclosure in favor of the complainant, from which the defendant appealed.

      I. P. Walker, for appellant.
    The district court should have allowed the application to file the proposed supple mental answer. 4 Johns. Ch. 375 ; 8 Yes. 79 ; 10 id. 285, 401. The defense set out shows that the contract which formed the consideration for the mortgage sought to be foreclosed, was in contravention of the act of congress, March 31,1830 ; 4 Story’s Laws U. S. 2188, 2189.

      Lem Hubbell and W. P. Lynde, for appellee,
    cited 4 Sim. 54; 1 Yes. and Beav. 148; 2 id. 255; 1 Tur. and Yen. Ch. 554; Mitford’s E<p Plead. 324 ; 2 Mad. 375 ; 1 Barb. Ch. Pr. 161.
   Dunn, C. J.

This is an appeal from a decree of foreclosure of mortgage, in favor of the appellee against the appellant, made by the district court of Milwaukee county, sitting as a court of chancery at the last March term thereof.

That the opinion which the court is called upon to give in this cause may be properly understood it is necessary to premise that, on the 2d day of February, 1842, the appellee, as complainant, filed his bill in the said district court against the appellant, as defendant, to foreclose a mortgage theretofore executed and delivered by defendant to one Marsh, and by said Marsh assigned to complainant. On the same day the defendant was personally served with subpoena. On the 2d June, upon application, a rule was entered by the judge of said court, at chambers, against the defendant, to plead, answer or demur to complainant’s bill on or before the 22d of that month. The defendant in due time responded to this rule by filing his demurrer to complainant’s bill, and at the December term of said court the demurrer was overruled and the defendant ruled to answer in ten days. Within the rule the defendant filed his answer, to which the complainant filed his replication, on the 7th February, 1843. At the June term thereafter, on motion of defendant, the court, by order referred the cause to a master, to take testimony therein on the part of defendant. On the 21st August defendant filed his affidavit and moved the court to continue the cause. The motion was sustained and the cause continued. Afterward, on the 23d September, the defendant moved the court for leave to amend his answer herein, and the motion was overruled by the court.

At the November term of said court the defendant presented his petition, praying leave of the court to file a supplement to his answer heretofore filed herein, and thereupon submitted a motion for leave to file a supplemental answer, pursuant to the prayer of the said petition. The petition was sworn to and accompanied by an affidavit of one of defendant’s counsel. The motion based upon the petition was overruled by the court. At the said March term the cause came on to be heard, and, after reference to a master and coming in of his report, a decree of foreclosure and sale of the mortgaged premises to satisfy the debt of the complainant, was entered, from which decree an appeal is prosecuted to this court by the defendant Shew.

It is insisted by the counsel for the appellant, in the review of this cause., that injustice has been done to appellant by the opinion and order of the district court, made at the November term, refusing him leave to file his supplemental answer, on the petition and motion referred to. In reviewing this opinion of the district court it will be necessary to consider the time of the application for leave, and the nature, as well of the answer as of the supplement sought to be introduced. In the history of the progress of this cause, from its commencement to the time of the opinion and order complained of, it must be apparent to every one who will examine carefully the rules governing chancery practice and the reasons of their adoption, that the application was ill-timed. In June, 1842, in answer to a rule, the defendant had demurred; in December the demurrer was overruled ; in ten days thereafter his answer was filed ; on the 7th of February, 1843, the complainant replied ; at the June term thereafter, the defendant obtained a reference to a master to take testimony on his behalf; on the 21st of August the defendant, on his motion and affidavit filed, obtained a continuance of the cause to procure the attendance of a witness before the master. On the 23d of September he moved for leave to amend his answer, and the motion was overruled; and so late as the November term, 1843, about eleven months after the filing of his answer, he moves the court for leave to file the supplement. Thus he permits the cause to be put at issue upon his answer, asks and obtains a reference to take his testimony, asks and obtains a continuance to procure the attendance of a witness lbefore the master, and after all this, and the intervention of many special and regular terms of the court, with the privilege of applying to the judge at chambers for any interlocutory order', at this late day, he applies for leave to file a supplemental answer. We understand that in chancery practice, the duties of complainant and defendant are reciprocal. The complainant must speed his cause by all proper and permissible rules and orders, to bring it to a final hearing at the earliest period allowed by the practice in such cases, and it is equally incumbent on the defendant to answer fully and promptly all rules against him, and when the cause is at issue, to take his testimony preparatory to a speedy and final hearing. It would be certainly a palpable violation of these wholesome rules, laid down and enforced by reasoning in every approved work on chancery practice, to permit the defendant in a cause, to occupy the attention of the court and of the complainant with an answer solemnly filed under oath, for some eleven months, during which time many special and regular terms intervene, and important steps are taken by complainant and defendant to place their cause at issue, and take testimony for final hearing, and then for the first time, to come in and file a supplemental answer, which would necessarily compel the parties to retrace their steps in all which had been done after the filing of the original answer. The time of the application would alone justify the district court for refusing the leave asked; but a more forcible reason for the court’s opinion may be found in the inconsistency apparent in the original and supplemental answers. The court will not suffer itself to be taken by surprise, and under color of correcting an error, allow a defendant by supplemental answer, to make a new defense inconsistent with his former answer. 1 Turner & Yenable’s Ch. 556 ; 2 Yes. & Bea. 167. And it is further settled in law and equity practice, that a default in law will only be set aside to admit a plea to the merits and the plea of limitation, usury, etc., cannot be interposed. So in equity, the courts will not permit a supplemental answer setting up as a defense, a penal law by which the complainant’s right is to be affected. The supplement must contain a meritorious defense, and be consistent with, and in explanation of the answer.

Defendants are permitted to amend by supplement according to chancery practice, as now well settled, in the following particulars: First, in small and immaterial matters. Bunbury, 248. Secondly, where a mistake had crept into the engrossment. 2 P. Wms. 426. Thirdly, where new matter has been discovered since the original answer put in. 10 Ves. 491. Fourth, in case of surprise. 1 Eq. Cases Abr. 29. Fifth, in mistakes of names. 11 Yes. 63. But where the defendant mistook, first, the law. Pearce v. Grove, 3 Atk. 522; Amb. 65, S. C. ; secondly, where the defendant had unintentionally perjured himself, and an indictment was suspended over him ; and, thirdly, where from the circumstance, that at the time of the answer put in, the defendant had not set forth his defense from an inability to state it with precision (2 Anstr. 363) the court has refused him the indulgence of amending.

Let us apply these principles to the defendant’s original answer filed, and the supplement offered. The original answer admits the execution of the notes and mortgage, as alleged in complainant’s bill. It avers, that on the 1st of February, 1838, the defendant and wife, and William Shew and wife, made and executed to Lemuel W. Weeks a mortgage upon the same premises mentioned in complainant’s bill, to secure the payment of the sum of $900 by installments, according to the obligation of three promissory notes in the mortgage mentioned; that the premises then were the property of the United States and the defendant in occupation as settler or squatter ; that the mortgagors covenanted and agreed to obtain the title thereto, by pre-emption, public sale, private entry or otherwise; that, if default was made in the payment of the money mentioned in the said mortgage, at the times stipulated, or any part thereof, the mortgagee had right to sell the mortgaged premises at public auction, to keep and retain the principal and interest due him, rendering the surplus, if any, to the mortgagors. That said mortgage was duly acknowledged and recorded in the office of register of deeds of Milwaukee county. The' answer further avers, that afterward the said Weeks transferred said notes and mortgage to Joseph W. Marsh, the same person mentioned in complainant’s bill, as defendant believes ; that in the month of June, 1839, the defendant purchased the said premises from the Territory of Wisconsin, at public sale, for the sum of $400, paying and securing to be paid to the Territory the said purchase money; that the said premises were part and parcel of the land granted by the United States to the Territory, to aid in the construction of the Michigan and Rock river canal, and by the terms of the act of congress making the grant, it is provided, that all the land not otherwise appropriated or disposed of in those sections and fractional sections which are numbered with odd numbers on. the plats of the'public surveys, within the breadth of five full sections taken in north and south or east and west tiers, on each side of the main route of said canal, from one end thereof to the other, are granted to the Territory, and reserving the even numbered sections and fractional sections, taken as above, to the United States. These lands are subject to the disposal of the legislature of the Territory, for canal purposes. And, further answering, the defendant avers, that he is informed and believes that the main route of the canal has been so changed from its location that the said mortgaged premises are more than the breadth of five full sections from the main route of said canal, and that the sale of said premises to him by the Territory of Wisconsin is void. The defendant, in conclusion of his answer, avers, that after the sale of said premises to him by the Territory, and after the transfer of said notes and mortgage by Weeks to Marsh, at the request and instance of Marsh or his agent or attorney, the defendant executed the notes and mortgage mentioned in the complainant’s bill, for the same cause of indebtedness, and in lieu of the said notes and mortgage to Weeks, and that upon such execution and delivery as aforesaid, it was expressly understood and agreed that the said Weeks or his assigns should cause the said mortgage to Weeks to be canceled and discharged, in a reasonable time, upon the records in the register’s office for the county of Milwaukee, and that such execution and delivery was upon that express condition, which defendant avers has not been complied with, but that said mortgage now stands upon said records, uncanceled and undischarged, as by their inspection is apparent. These are the entire averments in the defendant’s answer, with the usual conclusion.

The supplemental answer offered by the defendant, on his motion for leave to file a supplement, sets up, substantially, that William Shew was, in 1836, and before the 4th day of July, the occupant of the land and premises mentioned in said complainant’s bill, and that the same belonged to the United States at the time; that on or about the said 4th he entered into an agreement, under seal, with one Jonathan W. Balch, by which he agreed and bound himself, his heirs, etc., to convey to said Balch, his heirs and assigns, by good and sufficient deed with warranty, one-third part of the said tract of land, wheh the title should be obtained by the said "William Shew, at the land sales then expected to take place for the Milwaukee land district, by which agreement the said Balch was to, and did, pay to said William- $200, in the first place, for his claim; and was to furnish, at said land sales, one-third of the money required to purchase said land from the United States, which last sum the said Balch never furnished. The said defendant also became the purchaser of one-third of said tract of land, previous to said 4th of July, of the said William Shew, for the like consideration of $200; that William Shew, Balch and himself, about the same time, entered into an agreement to erect a saw mill, on a mill privilege, on said land, at their joint expense. At the same time, defendant and William Shew agreed with Balch to build a mill dam at the said-mill seat, across the river Kinnikinick; the dam to be built after the description contained in the agreement, the said Balch paying to said William and defendant, at the rate of $2 per foot for one-third of the dam and bulkhead; that the dam and bulkhead were completed according to agreement, and the construction of the mill proceeded until some $1,400 were expended, when a settlement took place between defendant, Balch, and William Shew; Balch was in arrears some $240, and defendant and William Shew demanded of him to make good and pay such sum, which he refused and neglected to do. The defendant avers the respective amounts advanced and expended by him self, William Shew and Balch, up to the settlement; it then proceeds and avers that about the 21st day of November, 1886, Balch assigned the contract with William Shew, and the agreement with William Shew and himself, to Lemuel W. Weeks; denies that any consideration passed from Weeks to Balch, or if any thing, a very small amount; that William Shew and defendant remained ignorant of the transfer or assignment to Weeks, until about the 2d December, 1836, when Weeks informed said William of the fact, who afterward informed the defendant. At the time Weeks gave this information, he paid said William $175, in part payment of the balance due from said Balch, for expenses on said mill, leaving Balch in arrears some $65.62-J. The receipt given for the money acknowledged Weeks as assignee of Balch. Defendant avers that no part of said payment ever came to his nse ; that William Shew and defendant completed the mill dam, etc., about the 1st January, 1837, at the further expense of $133.90, without any further contribution by said Weeks. From the said last-mentioned day, until about the 21st February, 1838, the defendant and William Shew occupied the said tract of land, the said Weeks, during all that time, failing to make any further advances. At the day last mentioned, the defendant and William Shew purchased all the right, title and interest, either in law or equity, of said Weeks, assignee of said Balch, in the land and premises aforesaid, the same still being the property of the United States, and executed to said Weeks, a mortgage on said premises to secure the payment of the balance of the purchase money. The only claim of said Weeks, against the defendant and William Shew, at the time of the purchase, grew out of the assignment from Balch before referred to. A receipt given by Weeks at the time, is referred- to as evidence of the true consideration of the notes and mortgage then given to Weeks. The defendant, about the 1st April, 1838, purchased out the interest of William Shew, in the said premises, for the sum of $1,100. On or about the 18th June, 1838, the said tract of land, or premises vested in the Territory of Wisconsin, by virtue of the grant referred to in defendant’s original answer. Afterward, about the day of June, 1839, the defendant became the purchaser of said tract of land from the Territory, as averred in the original answer. The defendant further avers, that about the 17th April, 1840, the said Weeks, from circumstances of embarrassment, procured the said Marsh, named in complainant’s bill, to become his secret trustee, to hold his property, effects and credits, in his, the said trustee’s name. The said Marsh, being in this fraudulent relation to Weeks, about the day last mentioned, by urgent solicitations, induced the defendant to execute to him a new mortgage and notes in lieu of the mortgage and notes to Weeks, as averred in the original answer. The defendant avers that this transaction was with design, on part of Weeks and Marsh, to defraud Weeks’ creditors. The defendant denies that the execution of the notes and mortgage to Marsh, was to secure the payment of any sum due by him to Marsh, as he did not then, and never did, owe Marsh any thing. Upon the execution of the mortgage and notes to Marsh, the said Weeks delivered up to defendant the mortgage and notes given by defendant and William Shew to him, Weeks, which are lost and cannot be produced in court; and, in conclusion of the supplement, the defendant avers that the giving of the said mortgage and notes to the said Marsh, as alleged in complainant’s bill, was without any good consideration, and void, of which the said Marsh had notice at the time of their execution, of all which the said complainant, by his agent or attorney, had due notice at the time of the assignment to him. The defendant avers generally, that inasmuch as the various transactions recited in the answer and supplement, were done and performed while the said land and premises belonged to the United States, of which all the parties named had full notice, the said agreement, assignment, notes and mortgages, founded thereon, were contrary to public policy and the laws of the United States, and void and without any legal consideration.

Thus we have presented in contrast the substantial parts of the defendant’s answer and supplemental answer offered, and it is too obvious to require elucidation or comment, that the supplement is not in aid or explanation of the answer, but assumes entirely new and distinct grounds of defense, and one too resting upon a penal statute of the congress of the United States, bringing the supplement in direct conflict with long settled principles in England and America, in regard to this kind of answer, which, in practice, has entirely superseded an amended answer.

It is true that the defendant as a salvo to this supplement, and to force it within the rules laid down, has in his petition for leave to file it, sworn that he intended to swear to the original answer, in the sense in which he wished to be permitted to swear to his supplement. This oath embraces the rule as laid down in the authorities, but it is at war with the facts stated, and grounds of defense assumed in the supplemental answer ; they being in their material parts, totally distinct and different from, and inconsistent with the original answer. The court might go further, and question, whether the defense set up in the supplemental answer, is permissible at all, under the circumstances in this case, to defeat the complainant’s right to foreclose his mortgage, but is unnecessary to settle this question here. In support of the view taken by the court of the latter branch of this subject, we refer to 4 Johns. Ch. 375; 8 Ves. 79; 4 Simmons, 54-61; 1 Ves. & Beames, 149; 2 id. 255; Mit. Plead. 324; 2 Mad. Ch. 375; 1 Barb. Ch. 361.

We are of opinion that the district court decided correctly in overruling the motion for leave to defendant to file a supplemental answer herein, and therefore affirm the decree of the district court, with damages at the rate of seven per centum per annum on the amount of money decreed to complainant from the date of said decree, with costs, and order that it be so certified to said court.


text:
    Smith & another vs. Odell.
    1. Judicial rower or territory. By the organic law of the Territory the judicial power is vested in a supreme court, district courts, prohate courts and justices of the peace, and it is not competent for the legislative assembly to create any other judicial officers or tribunals.
    2. Ors-artc law. The organic act is to the Territory what a constitution is to a State, and the legislative assembly cannot pass an act in opposition to or in violation of it.

      3. Constitutional law. Before a court will declare an act of the legislature unconstitutional, a case must be presented in which there is no rational doubt of its invalidity.
    4. Supreme court commissioners. The allowance of a writ of omhtorcm (Wis. Stat. 340) is a ministerial and not a judicial act, and the legislative assembly has power under the organic law to create supreme court commissioners and confer on them power to allow writs of certiova/ri to justices of the peace.
    ERROR to the District Court for Iowa County.
    The case is stated in the opinion of the court.

      F. J. Dunn, for plaintiffs in error.

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

The defendant in error, Damd J. Odell, brought this suit before a justice of the peace of Iowa county, against these plaintiffs in error, Michael Oassin and Eleaser Smith; who, feeling themselves aggrieved by the judgment of the justice, applied to a supreme court commissioner of said county for the allowance of a writ of certiorari to said justice, to remove the judgment and all the proceedings in the case, to the district court of said county for revision and correction. The commissioner allowed the certiorari, which was issued in common form. On the return of said writ to the district court, the said Damd J. Odell, the defendant in error, moved the court to dismiss the same and all proceedings thereon, for the reason, “that it was allowed, and the bond approved, by a supreme court commissioner, who is an officer possessing no authority by the law organizing the Territory, to exercise such judicial functions.’ ’ Which said motion was sustained by the court, and the writ of certiorari dismissed ; which is the error assigned in this court.

The question presented is, has the legislative assembly of this Territory power, under the organic law of the Territory, to create such an officer as supreme court commissioner ; and to confer upon him the power to allow a writ of certiorari to a justice of the peace %

By the ninth section of the “act establishing the territorial government of Wisconsin,” the judicial power of the Territory is vested in a supreme court, district courts, probate courts, and in justices of the peace. These are the courts for the disposition of all the judicial business of the Territory — and it is not competent for the legislative assembly to create any more. The creation of any additional judicial tribunal, is in the congress of the United States. The legislative assembly is authorized to limit, by law, the jurisdiction of the several courts above mentioned, both appellate and original—but no further.

By the sixth section of the organic law, the legislative power of the Territory is extended to all rightful subjects of legislation. This extends to the legislative assembly, the power to direct the manner in which all writs may be obtained. It has the power to prescribe all rules,requirements, forms and ceremonies in obtaining, issuing and serving writs, and it can, by law, declare what officers shall or may administer oaths.

In the seventh section of the organic law, it is. provided, “that the governor shall nominate, and by and with the advice and consent of the legislative council, shall appoint all judicial officers, justices of the peace, sheriffs, and all militia officers except those of the staff, and all civil officers not therein provided for.” By this last clause it would seem, that some other officers might be created in addition to those enumerated in that law. In the exercise of the power granted to the legislative assembly, acts have been passed, and are now in force, authorizing, the appointment of supreme court commissioners and conferring upon them extensive powers. Whether a supreme court commissioner is such a civil officer as must necessarily be appointed by the governor, with the advice and consent of the council, it is not necessary now to determine. Nor need we determine, whether he is a judicial officer clothed with judicial powers. There is no doubt, but that the legislative assembly can by law, create such a commissioner, and confer upon him the power to perform such ministerial duties, as may be deemed necessary in the administration of the laws. He may be nominally classed among the judicial officers, but at the same time possess but mere ministerial powers. He may be clothed with judicial authority, which he cannot legally exercise, but this should not prevent him from discharging such duties as are ministerial.

The statutes of Wisconsin relating to the powers and duties of this commissioner, are copied from those of the State of New York; but the constitution of that State does not so specifically and positively define and limit the judicial power, as does the organic law of this Territory. Probably this is one cause of the scarcity of judicial decisions in that State, upon the powers and duties of the supreme court commissioner. The statute of that State confers upon the commissioner power to allow a writ of certiorari to a justice of the peace; but the allowance of a common law certiorari is not thus conferred, but is confined to the court which issues the writ. Caledonia Company v. The Trustees of Hoosic Falls, 7 Wend. 508-665; Bredner v. The Superintendent of the Poor of the county of Orange, 9 id. 433. But an adjudicated case cannot be found in the books of reports of that State, after diligent search, where the power of a commissioner to allow a writ of certiorari to a justice of the peace has been questioned.

Cause must be shown for a writ of certiorari in all cases, where it is to review the proceeding of an inferior tribunal. Munro v. Baker, 6 Cowen, 396; Bogart v. The Mayor, etc., of New York, 7 id. 158. Such is the requisite of our statute. In the second section of the act, on page 340 of the Revised Statutes, it is provided, that the party applying for such certiorari, his agent or attorney, shall present to a judge of the supreme court, or supreme court commissioner an affidavit, stating that in his belief, there is reasonable cause for granting such certiorari for error in such judgment (setting forth the ground of error alleged), and that the application is made in good faith and not for the purpose of delay, and if such judge or commissioner shall be satisfied that any error affecting the merits of the controversy has been committed by the justice, or jury, in the proceedings, verdict, or judgment, he shall allow a writ of certiorari, by indorsing on the affidavit his allowance thereof.” It is contended, that as the commissioner is to examine the affidavit and satisfy himself therefrom that error affecting the merits of the controversy has been committed, it is a.judicial investigation by a 'tribunal not authorized or contemplated by the organic law, and therefore void. In every act the commissioner is called upon to perform, some examination or investigation is necessary. He can make an order for security for costs (Moore v. Merritt, 9 Wend. 482; Stat. of Wis. 403), which requires an examination of the affidavit or facts required by the statutes. He can tax a bill of costs, which a party is adjudged to pay by a court of competent jurisdiction, which requires both an investigation of facts and the administering of oaths. The allowance of a writ of habeas corpus requires a previous examination of the petition , and all accompanying documents required by the statute, but that is a mere ministerial duty, when performed by a judge in vacation. In speaking of the penalty to be imposed upon judges for not allowing a writ of habeas corpus, Chief Justice Kent, in the case of Yates v. Lansing, 5 Johns. 296, draws this distinction between judicial and ministerial acts. “ The penalty to which the chancellor and judges are liable is mentioned in the fourth section of the act, and that is given against them by name, and only for their refusal, in vacation time, to allow a writ of habeas corpus when duly applied for. The chancellor and judges may refuse such a writ at their discretion, if applied for in term time, and the penalty will not attach. It is only when they refuse in a mere ministerial capacity to allow a writ that they are made responsible. The allowance of a writ in vacation is not a judicial act. It is merely analogous to the case stated in Green v. The Hundred of B.,1 Leon, 323, where it was held that an action on the case lay against a justice of the peace for refusing to take the oath of the party robbed, because in such case he did not act as a judge, but as a particular minister appointed by the statute of Elizabeth to take examinations. The habeas corpus act does not then, in any of its provisions, violate or even touch the principle that no suit lies for a judicial act. Though the judge is bound under a penalty to allow the writ, yet when the prisoner is brought before him, he is to discharge, bail or rémand him, as he shall be advised, and no action or penalty is given for what he shall then do or refuse to do.” He then acts judicially.

The laws directing the manner in which writs of certiorari or attachment may be obtained require the officer to be satisfied from an examination, or inspection, of the affidavit presented; but the allowance of the writ upon such examination or inspection is not an adjudication; it is merely the exercise of a judicial discretion. The officer does nothing thereby to conclude the rights of the parties. He merely inquires whether there is sufficient contained in the affidavit to entitle the party to his writ; which when served and returned, becomes the subject of judicial examination by the court, and must be quashed or abated, if allowed improvidently or issued illegally. It is a common practice for the court to quash writs that have been allowed by the judges in vacation—which is a judicial correction of a ministerial act. The court does not dispose of a case brought by certiorari or attachment upon the affidavit on which the writ was allowed, but upon the return of the justice in the one case and the merits of the cause in the other. The allowance of writs partakes more of an inquiry into the forms and ceremonies of the law than an investigation of any thing connected with the rights or interests of the parties, or the justice of the cause.

The act of congress organizing this Territory is in the nature of a constitution of a State. -It is supreme, and the legislative assembly cannot pass an act in opposition to, or in violation of it. The courts cannot be required to enforce such an act. It should be treated as a nullity. But before the courts would be justified in such a course, -it should clearly appear that such repugnance, violation or opposition did exist. Upon the same principle, it is well settled in the courts of the United States and of the different States of this Union, that the constitution is paramount to the power of a legislature, and every act of a legislature repugnant to it is void. The judiciary is a co-ordinate branch of the government, and has a right to declare an act of the legislature void, when repugnant to the constitution, but it must be a very clear and unequivocal case to induce a court to pronounce an act of the legislature unconstitutional. When a judge is convinced that an act is unconstitutional, it is his duty to set it aside, but he must examine it with every legal intendment and presumption in favor of its validity. He is not to resort to a forced, rigid or doubtful construction of an act for the purpose of determining its unconstitutionality. Before the court will declare an act of the legislature unconstitutional, a case should be presented in which there is no rational doubt. Vanhorn's Lessee v. Dorrance, 2 Dallas, 304; Cooper v. Telfair, 4 id. 14; Osburn v. The Bank of the U S., 9 Wheat. 738; Trustees of Dartmouth College v. Woodward, 4 id. 518; Ex parte McCollom, 1 Cowen, 550; Stoddard v. Smith, 5 Binney, 355; Eaken v. Raub, 12 Serg. and Rawle, 330. After a full and fair examination, according to these principles, of the statutes relating to supreme court commissioners, and conferring upon them the powers to dis- • charge the ministerial duties above referred to, we cannot pronounce them to be repugnant to the organic law and void. We should not feel ourselves justified in deciding that !be legislative assembly possessed no power to provide for the appointment of supreme court commissioners and confer upon them the authority to allow a writ of certiorari to a justice of the peace.

Por these reasons, the judgment of the district court of Iowa county, quashing the certiorari in this case, must he reversed, with an order to said court to restore the cause to the docket of said court.