author: Hübbell, J.

text:
    Lane v. Romer, for the use of Cunningham.
    1. Sale — warranty or title — breach or same. — A sale of chattels for a sound price carries with it an implied warranty of title in the vendor, and the vendee may pay any sum he deems necessary to clear the vendor’s title, and obtain possession; and he may show such payment • as a set-off to a suit against him for the purchase money, or maintain a- suit against the vendor for the amount as for money paid to his use.

      % Same. — R. sold his stock in trade to L., taking a non-negotiable note for hhe price in the name of his wife. At the time of the sale, the property had been mortgaged by R. to secure his debts, and the mortgages were on file. L. paid off the mortgages to save the property, it having been subsequently seized by the mortgagees. Held, in an action by Mrs. R. on the note, that the sum so paid by L. in discharge of the mortgages, being actually due thereon, was a valid set-off against the note.
    (2 Cliand. 61.)
    ERROR to the Circuit Court for Milwaukee County.
    This was an action brought by Homer, the plaintiff below, for the use of Ounrdngham, against Lane, the defendant below, upon a promissory note made by him, payable to Mrs. Homer, dated September 1, 1846, for $100, and not negotiable. The defendant pleaded the general issue, and gave a general notice of set-off.
    At the trial the note was read in evidence, and in defense the defendant, Lane, proved that on the day of the date of the note he purchased of Romer the cabinet furniture in his shop in the city of Milwaukee, and gave him therefor $100 and the note ; that he afterwards paid on the note $35, and that the furniture did not exceed in value $200, and in the opinion of witness was not worth that.
    The defendant then offered to prove that at and previous to the sale, there were three chattel mortgages duly recorded or filed in the office of the clerk of the common council of the city of Milwaukee, where Homer resided at the time of their execution, which were executed by Homer to one Lyman P. Swift, upon the identical furniture sold by Homer to Lane ; that Swift, a few days after the sale, by virtue of the mort- • gages, took possession of the furniture, and that then Lane paid Swift $100 in satisfaction of the mortgages, and that the said sum of $100 was then due and unpaid on said mortgages, and the notes in their conditions mentioned. The court refused to permit the testimony to be given, and Lane excepted. The question here is: did the court err in refusing such testimony ?

      J. Downer, for plaintiff in error,
    argued, 1. The testimony, if admitted, would have proved a payment of the note sued on. It is a general principle of law tbat wben one person owes a debt which is a lien on another’s property, and the latter, either to retain or obtain possession of his property, pays such debt, that such payment (being for the benefit of the person who is personally liable) is, by operation of law, a payment pro tanto to him of any demand winch he might have against the party so paying, that originated in, or is connected with, the property sold on which such lien existed.
    The case of Partridge v. D. College, 5 N. H. 288, and the authorities there cited, sustain the principle above stated. That was an action for the purchase money of lumber, on which one Olcott had a lien for sawing, and he refused to deliver the lumber to the vendee until the amount of Ms lien, $261, was paid. The vendee paid Olcott the $261, and when sued by the vendor for the purchase money, paid into the court all but the $261, and claimed the payment of that amount to Olcott as a payment to the vendor. The court say:
    “ The payment wMch the defendants made to Olcott cannot be considered a voluntary payment, but was a payment they were compelled to make in order to obtain the boards; and we are of opinion that it must be considered as a part payment to the plaintiff of the price of the boards (Carter v. Carter, 5 Bing. 406 ; Taylor v. Zamira, 6 Taunt. 524 ■ Stubbs v. Parsons, 3 Barn. & Aid. 516; Andrew v. Hancoclc, 1 Barn. & B. 37 ; Sapsford v. Fletcher, 4 Durn. & E. 511”), and gave judgment for the defendants.
    In the present case, the note sued on being given for part-of the purchase money of the identical property mortgaged, and the money being paid by Pane to Swift to dischax-ge the mortgage lien, such payment was, according to the above authorities, payment pro tanto to Rooner.

    2. The amount paid to discharge the mortgages might have been proved as a set-off, being specially set out in the notice, and the testimony offered and ruled out was competent for that purpose. Indebitatus assumpsit would lie by
      Lane against Lamer for the money paid to remove the incumbrance of the mortgages. Wells v. Porter, 7 Wend. 120 ; and when indebitatus assumpsit will lie on .a demand, it may be pleaded as a set-off. U. S. Dig'., Set-off, 197 ; Sup. U. S. Dig., Set-off, 40.
    In the case of Sheldon v. Simoncls, Wright, 724 (U. S. Dig., Set-off, 43), it was decided that where one buys land and gives his note, and an incumbrance is afterwards discovered, he may pay off the incumbrance, and set it off on the note. We see no reason why the same principle would not apply to a sale of chattels, especially as there is an implied, warranty of title in all sales of chattels. Defreeze v. Trumper, 1 Johns. 274 ; Story on Cont., § 585.
    The fact that Lane paid the full value of the furniture rebuts any presumption that he had any knowledge of the mortgages at the time he purchased the furniture, or that he took it subject to them.
    3. The consideration of the note entirely failed, for if Lane purchased the goods of Romer for $200, and paid him one-half, and gave the note for the other, and afterwards the consideration failed to the extent of $100, that to that part of the consideration which has not failed the money paid must apply ; and, if so, the consideration of the note entirely failed, and evidence thereof might have been given under the general issue, and the court erred in rejecting such evidence. U. S-Dig., 1847, Promissory Note, 142, 143.

      A. Hyatt Smith, for defendant in error,
    argued,. 1. That, for aught that appears in the case, the plaintiff in error, at the time of the purchase of the property in question, knew of the existence of the mortgages executed by the defendant to Swift, and that they were liens upon it; that the presumption arising from the evidence given in the case fairly was, that he had such knowledge; but if not, still the mortgages were recorded or on file with the proper officer, and that, in law, made evidence of the fact, of which he was bound to take notice. Frost v. Beeleman, 1 Johns. Ck. 288 ; ParJchurst v. Alexander, id.
    2. The law being, that all incumbrances of record, upon property sold, were notice to the purchaser, and of which he was bound to take notice; and it not appearing that any representations were made by the vendor that the property was not incumbered, there was no fraud in law, and the plaintiff in error took no precedence by the purchase over the lhort-gage incumbrancer.
    3. That there being an incumbrance upon the property, within the knowledge of the purchaser, he took it subject to all such liens as respects which he was charged in the law with knowledge, and that the implication would necessarily arise that he made the purchase subject to such liens. 6 Paige, 189.
   Hübbell, J.

A sale of chattels for a sound price carries with it an implied warranty of title in the vendor. This is old law. Chandelor v. Lopus, 2 Croke, 2; Seixas v. Woods, 2 Caines, 48. And to this extent the rule of caveat emptor does not apply in sales of personal property. The rule is different in respect to real property, where a warranty must be expressed or the courts hold that none was intended. Subject to this rule, Romer sold his stock in trade in the cabinet shop to Lane; and the first question is, whether the vendee is protected from the chattel mortgages upon the property, executed by the vendor prior to sale, and recorded in conformity to the statute. Clearly, Romer had not a perfect title at the time he sold, and inasmuch as the record notice only affected third persons, and did not apply between the parties, Rmner was bound, as between himself and Lane, to make good the title. This suit is brought upon anote, not negotiable, given for a part of the purchase money, and the same right of defense exists as if Rmner owned the note.

Had the defense arisen upon a notice of special matter, accompanying the plea of general issue, I should have had little doubt of the defendant’s right to recoup to the amount of the chattel mortgages; nor do I doubt that an action would lie on the implied warranty; but there is no notice whatever of the facts which make out this defense. The defendant pleaded the general issue, with the common notice of set-off, and, on the trial, offered proof of payment of the mortgages as a set-off to the plaintiff’s demand on the note. This proof I then deemed inadmissible and ruled it out.

The defendant also offered to show payment of the note by proving payment of the mortgages, which was also ruled out.

The principle set up is, that the vendee of a chattel, under his implied warranty from the vendor, may pay any sum he deems necessary to clear the vendor’s title, and afterwards not only show such payment as a set-off in a suit for the purchase money, but bring assumpsit against the vendor for money paid and advanced for his use; for assumpsit will lie, e converso, where a set-off is maintainable. On a careful examination of the authorities, a majority of my brethren are disposed to hold the ruling in the court below erroneous on both points. Carter v. Carter, 5 Bing. 406, is a case similar in principle. It was a payment, by the tenant, of ground rent due by the landlord, after demand upon the latter and his neglect to pay. The tenant paid, to avoid a distress upon his property on the premises, and was allowed to set it up as a payment of rent to the landlord. The peculiar condition and liability of tenants at common law may, however, have induced this and like decisions. Partridge v. Dartmouth College, 5 N. H. 288, is a case more in point. The defendants were vendees of a quantity of lumber, in possession of one Olcott, who had a lien on it for sawing. Being unable to obtain possession of the lumber without satisfying the lien, they paid the amount due to Olcott, and afterwards, in a suit by the vendor, were allowed to show it as a payment of the purchase money. The court say: 1 ‘ The payment which the defendants made to Olcott cannot be considered a voluntary payment, but was a payment they were compelled to make in order to obtain the boards; and we are of opinion that it must be considered as a part payment to the plaintiff of the price of the boai’ds.” And they cite Carter v. Carter, 5 Bing. 406; Taylor v. Zamira, 6 Taunt. 524; Stubbs v. Parsons, 3 B. & A. 516; Andrews v. Handcock, 1 B. & B. 37; Sapsford v. Fletcher, 4 D. & E. 511; all cases between landlords and tenants.

After all, the learned court of New Hampshire is the only one which has sustained a case anywhere nearly like the present, and the fact that the possession could not be obtained without satisfying the lien gives it a shade of difference. Wells v. Porter, 7 Wend. 119, cited by the defendant’s counsel, does not sustain the jirinciple.

The payment by one partner, or by one tenant in common, of a sum necessary to protect the property in which they have a joint interest, is quite different from paying on an assumed or implied warranty; but authority must govern, and I cheerfully yield my own views to those of my brethren.

Judgment reversed, with costs.


source: Caselaw Access Project

author: Hubbell, J.

license: Public Domain

text:
    Hale v. Thayer.
    1. Justice’s return — appeal.—The return of a justice, on an appeal from his judgment, must be in conformity with the statute and show the proceedings had before him, in order to confer jurisdiction upon the appellate court to render a judgment of affirmance under the statute, for want of prosecution.
    2. Same. — A judgment of affirmance rendered by the appellate court, without such return being first made, is erroneous and will be revereed. . Cedi v. Barber, 3 Wis. 297.
    (2 Chand. 68.)
    ENRON to the Circuit Court for MilwauJcee County.
    In this case it appears from the record that Thayer recovered judgment against Hale, before a justice of the peace, in March, 1846, from which Hale took an appeal. Soon after the parties entered into an agreement, under their hands and seals, to submit certain matters, and among them the judgment, to three arbitrators, and therein released all causes of action and demands except those submitted, and agreed to discontinue all suits then pending. The arbitrators met, heard the parties and made their award, on which judgment was entered in the district court for Milwaukee county, at the June term, 1846. At the next October term, Thayer procured what the court considered a transcript of the justice’s judgment, though it is not certified as such, to be filed in the district court, and judgment of affirmance, with damages, to be entered thereon, without the knowledge of Hale, who considered the judgment before the justice merged in the award.
    At the next June term, Hale filed his motion to satisfy the judgment and set aside the proceedings, accompanied with affidavits of himself and others, stating the submission, award and final settlement thereby of the judgment before the justice.
    On the 25th day of November, 1847, the court, having heard the motion, made the following order: “It is considered and ordered by the court, that said judgment be and the same hereby is satisfied, and all proceedings herein be set aside, and that said plaintiff pay the costs.”
    On the 6th of December thereafter, Thayer filed affidavits stating a parol withdrawal of the judgment before the justice from the consideration of the arbitrators at the hearing, and thereupon, on motion of Thayer, the court set aside or vacated the order satisfying the judgment, and in March, 1849, the court overruled the motion to satisfy the judgment, and subsequently denied an application by petition for a writ of audita querela, with costs.

      Jason Doumer, for plaintiff in error,
    contended that the judgment before the justice had been satisfied by the award. Barker v. Judges of Ulster, 4 Johns. 191; 20 id. 294.

      Tbe satisfaction being regularly entered, was there good cause for vacating it ? The only reason was the parol withdrawal of the justice’s judgment from the consideration of the arbitrators at the hearing before them, and even that is contradicted by the affidavits of the arbitrators. But if such parol withdrawal is admitted, it amounts to nothing in law. It was expressly decided in the case of Howard v. Cooper, 1 Hill, 44, that where a submission to arbitrators is under seal, the parties cannot, by parol agreement at the hearing, withdraw any item or claim embraced in such submission, and that notwithstanding such parol withdrawal, the award will be final, and embrace and bar the claim so attempted to be withdrawn. To the same effect is the case of Van Antwerp v. Stewart, 8 Johns. 125.
    There being then no good reason for the decision vacating the satisfaction of the judgment, is such decision one from which a writ of error will lie ? After the satisfaction of the judgment, and before the decision vacating it, there was no valid and subsisting judgment against Hale, but one in his favor for costs. But the decision vacating the satisfaction not only sets aside a judgment in favor of Hale for’ costs, but is, in effect, if not in form, a re-renditim of the judgment against him. Viewed in this light, it was as much a final judgment as any ever rendered. We apprehend that such a decision is clearly within our statute, which provides that “the supreme court shall have and exercise appellate jurisdiction only, which shall extend to all matters of appeal, error or complaint from the decisions, judgments or decrees of the district courts in all matters of law or equity.” Stat. Wis. 196. It has been repeatedly held that a writ of error lies from similar decisions. Sup. U. S. Dig., Error, 18, 20, 41.
    The first error assigned is, that the court erred in vacating the satisfaction of the judgment and setting aside the judgment for costs in favor of Hale.

    There can be no doubt that the satisfaction was regularly entered, for the affidavits of Hale and the three arbitrators were at that time before tbe court, and proved satisfaction.
    The second error assigned is, that the court erred in overruling thev motion of Hale to enter satisfaction of the judgment. The authorities above cited to show that the satisfaction, when entered, ought not to have been vacated, show that the court erred in overruling the motion. The question, however, again comes up, will a writ of error lie from such a decision ?
    Under statutes similar, and certainly not more comprehensive than ours, the courts of Illinois, Alabama, Missouri and New Jersey, have decided that a writ of error would lie to reverse a decision overrating a motion to set aside or satisfy a judgment, or even to quash an execution. Page v. Ooleman, 9 Port. 275 ; Sloe v. State Bank, 1 Scam. 428 : Sup. U. S. Dig., Error, 18, 20, 34, 41, 49, 50; U. S. Dig., Error, 53.
    The third error assigned is the refusal of the writ of audita querela.

    All the authorities are uniform that we are entitled to this writ as a matter of right, upon the presentation of a petition setting forth such a state of facts as the petition contains in this case. 3 Black. Com. 406 ; Com. Dig., Audita Querela, A.; Johnson v. Harvey, 4 Mass. 485 ; Bddy i). Oochran, 1 Aik. 359 ; Lovejoyv. Webber, 10 Mass. 101; Brooks v. Hunt, 17 Johns. 484 ; U. S. Dig., Audita Querela, 8, 11, 13, 15, 18. The case of Eddy v. Cochran, 1 Aik. 359, is precisely such a case as was presented by the petition of Hale to the court below. It was decided in that case that the appellant against whom the affirmance of the judgment had been obtained by the appellee without notice, and in violation of an agreement to arbitrate the matter, would be relieved on audita querela.

    There can be no doubt, then, but the court erred in refusing the writ. And we think as tittle doubt that a writ of error will tie from such decision refusing the application with costs. Eor the writ can be only granted by order of the court made

      in open court, and in granting or refusing it, the court acts judicially. Com. Dig., Audita Querela, E.
    If so, then we are without remedy, unless a writ of error lies, for it is certain we could not have a writ of mandamus, that being never granted where an inferior court has acted judicially, but only to compel it to act, without directing it how to act. People ex rel. Doughty v. Dutchess O. P.; 20 Wend. 658; 21 id.- 22.
    The fourth error assigned is, that the court erred in entering the judgment in the district court, because there was no transcript of the justice on which to enter judgment. There is no certificate to that which was doubtless considered by the court below as a transcript, and for that reason the court could not know whether it was a transcript or not, and was not authorized to enter judgment on it.
   Hubbell, J.

In this case the return of the justice, filed by the • defendant in the district court of Milwaukee county, was insufficient to warrant that court in entering judgment on the motion of the appellee. There is no certificate that the return 'contained a transcript of the justice’s docket, nor did it state the substance or any part of the plaintiff’s declaration. These are material and essential parts of a correct return, and their omission is fatal. The error assigned by the plaintiff on this point renders a reversal of the judgment necessary.

The judgment of the district court of Milwaukee county, entered on the 30th day of November, A. D. 1846, is reversed, with costs.


text:
    Taylor v. Noble and another.
    1. Agbbbmbnt — equity.—T. and R. were squatters on certain public lands, and had improved them. T. applied to N. for a loan of money to enter the land, which was made and accepted upon condition that N. was to enter the land in his own name to secure repayment, and he was to have the right to convey one-half thereof to R. within one year if he should see fit to do so. Subsequently, and within the time prescribed, N. conveyed one-half of the premises to R. upon his making payment of one-half of the money advanced, with interest, and T. subsequently filed a bill against N. and R. for a conveyance of the entire premises. Held, that whether there was a technical borrowing of money by T. or not, so that he became liable for the whole, still IN', had a right to dictate the terms upon which he would advance it, and T., by accepting it, became bound by the terms, and was not entitled to a conveyance of the entire premises.
    (2 Chwnd. 73.)
    APPEAL from the decree of the Circuit Court for Dodge County.
    The appellant filed bis bill, claiming and alleging thereby that in the year 1846 he applied to the defendant, Noble, for the loan of $200 for one year, at an interest of twelve per cent, per annum, in order to enter for the complainant (the appellant) certain lands belonging to the government, within the Green Bay district, and proposed to give as security for such loan the land to be located, and upon which the complainant then lived, and that the complainant would, within one year, or within a reasonable time afterwards, pay the defendant Noble such loan, at the rate per cent, aforesaid, and, upon such repayment, Noble should convey the land to complainant (the agreement being that the land should be entered in the name of Noble) by a good title; that upon the proposed conditions the defendant loaned the before mentioned sum of money, and upon repayment of the money and interest, defendant was to reconvey the premises to complainant; that upon the receipt of the money, complainant entered the land in question in the name of defendant, Noble, and took for bim the proper certificate, and delivered the same to him ; complainant remained in possession of the land, as had been previously agreed upon between him and Noble; that in May, 1847, complainant offered to repay the loan aforesaid to Noble, and then demanded of him a conveyance of the premises ; but Noble refused to receive the money or convey the premises, but agreed to extend the time of the payment of the loan until the first of July then next ensuing ; that before the expiration of the time granted, complainant caused to be tendered to Noble the amount of the loan, with interest, and demanded a conveyance of the premises; but Noble refused to receive the money or give the conveyance ; that at about the first of July, 1847, Noble, with his wife, conveyed the west half of the quarter section by deed to Rogers, one of the defendants, and put him into possession.
    The bill prayed a conveyance of the whole of the land from Noble and Rogers, and their respective wives, on payment of the loan and interest, and offered” the payment of the same. The bill was subsequently amended by alleging that Rogers had executed a mortgage upon the premises to Woodworth, and making him by said amendment a party defendant.
    The defendant, Noble, in his answer denied that he entered into the alleged agreement, or loaned the complainant the money alleged in the bill, or agreed at any time to convey the complainant the land, as alleged in the bill. He sets up that in June, 1846, the complainant and one Rich came to him and stated that complainant had a pre-emption claim on the N. W. quarter of section 23, which had expired, and that he, complainant, wanted to secure the land. Defendant replied that he thought it could be secured, that he might help complainant, and would see him again; that shortly afterwards Rich stated to defendant that there was a difficulty between complainant and defendant Rogers, the brother-in-law of complainant, in regard to the land, and advised him to do nothing about it. Defendant stated that if there was iikely to be any difficulty, he would have nothing to do with the land ; that shortly after this, the complainant came to the defendant and desired him to enter the land or to loan him, the complainant, the money with which he could do it; that defendant declined doing either on account of the pending difficulty with Rogers; that soon after the last mentioned interview, complainant called upon defendant again, at which time, at complainant’s solicitation, it was agreed upon by and between complainant and defendant, no one else being present, that defendant would enter the land in his own name, and that at the end of a year he would convey eighty acres thereof to complainant upon his paying $100 and interest at twelve per cent., and that defendant would convey to the defendant Rogers the other eighty acres upon like payment by him; but if defendant should not wish so to convey to said Rogers, he would convey the whole to complainant; that under this arrangement defendant entered the land, and upon no other, and paid to Martin Rich $200 to enter the lands in defendant’s name, and that Rich did enter it, and returned to defendant a duplicate certificate; that a short time before, the defendant Rogers stated to the defendant Noble that he, Rogers, had a pre-emption claim on the same land, and was working it, and desired to hire the money to enter it, but defendant declined to help him ; that defendant is informed and believes that after the land was entered as before stated, all differences between complainant and defendant Rogers in respect of the land were settled by then submitting them to arbitration, and that, by the decision of the arbitrators, the west half of the land was awarded to Rogers, and by said award Rogers was to pay complainant forty-nine dollars and sixty-nine cents, and should also pay to defendant Noble the government price of that part of the land, with interest from the time it was entered, at the rate of twelve per cent., and that Rogers complied with such award, and paid the complainant and defendant Noble in the manner directed by the said award; that defendant conveyed the land awarded to Rogers on the day alleged in the hill; that on the same day of the conveyance to Rogers, defendant tendered a deed to complainant of the residue of the land; complainant stated to defendant that if he could not have the whole of the land, he did not want any of it, and refused the deed; that the complainant’s solicitor, before the time of the conveyance by defendant to Rogers, came to him and tendered the necessary money to pay the sum advanced by defendant to enter the land, with the stipulated interest thereon, and demanded, in behalf of complainant, a deed to be given to him of the whole of the land, but defendant did not make the conveyance or receive the money; denies that he ever agreed to convey the whole of the land to Taylor, or that he received a duplicate certificate from Rich as security for any purpose, but alleges that the certificate belonged to him, defendant; sets up, from information and belief, that defendant Rogers went upon the land before it was entered, made improvements thereon, under the promise by complainant that he should have one-half the land, and that complainant had recognized the right of Rogers to the west half of the land ; that the defendant made the conveyance to Rogers in accordance with his stipulation made with complainant before the land was entered.
    The defendant, Rogers, set up in his answer, that he received a deed of conveyance of one-half the land in question from the defendant, Noble, in pursuance of an agreement made ■between them; that in the winter of 1846, complainant requested defendant to come to him, the complainant, stating that if defendant would come and live with him, defendant might have one-half the land in question ; that defendant did go ; complainant then told him he might have the west half of the land, and complainant went with defendant and ran the line ; complainant was then living on the east half of the land ; defendant then commenced working the land and built a house thereon in July, 1846, and has since resided there ; that in June, 1847, defendant told complainant he thought complainant’s pre-emption claim was not good, and complainant replied that if defendant thought so' he might claim the said land, and defendant did, on the 10th day of June of that year, file his pre-emption claim to the whole ; that differences and disputes arose between defendant and complainant in regard to the land, which were submitted mutually to the arbitrament of Rice, McConnell and Perkins, who met and heard complainant and defendant, and awarded that defendant should have all the right and interest of complainant in the west half of the land, and that defendant should pay complainant forty-nine dollars and sixty-nine cents, and defendant paid the sum awarded to the complainant and supposed complainant satisfied.
    ■Proofs were taken on the part of complainant and defendants in regard to the arrangement and agreement between the complainant and the defendant, Noble, in regard to the entering the land in question; considerable of which were vague and uncertain, tending, on the one hand, to show that it was an agreement between complainant and Noble alone, in which the defendant Rogers had no right or interest, and on the other hand, that the defendant Noble reserved the right of conveying to the defendant Rogers one-half- of the land, if in his own opinion, at the expiration of a year, he should think proper to do so.
    Much vague and uncertain testimony was also produced on the part of the defendants, whereby it was claimed to have been shown that an arbitration had been had between the complainant and the defendant Rogers, as to the right of the latter to the one-half of the land, and an award to that effect ■made in his favor. But it did not appear that any other than an oral award was made, and that quite uncertain as to the terms and the subject-matters embraced in it. Proof also was taken, which, it was claimed by the defendants, established the fact that the complainant had induced the defendant
      Rogers to move upon the land and improve it, under the promise from the complainant that he should have the one-half of it by paying the government price; but this proof was presumptive, rather than direct and positive.
    The circuit court decreed a conveyance by the defendants, Noble and Rogers, to the complainant, of the whole of the quarter section, upon the payment to Noble., by the complainant, of two hundred dollars, and interest thereon, at the rate of twelve per cent, per annum.
    From this decree the defendants appealed to this court.

      Oollins & Billinghurst, counsel for appellants, argued:
    1.That the complainant’s evidence did not establish the agreement set out in the bill. That if a contract be vague and uncertain, or the evidence to establish it be insufficient, equity will not enforce it. • 2 Wheat. 336; 1 Young, 346; 3 Yer-ger, 18 ; 5 Wend. 638 ; 6 Johns. Ch. 222 ; 1 Des. 250.
    2. That the answer set up a different agreement from that alleged by the bill. That in such a case a complainant could not have a decree unless he prove the contract he has set up aliunde, and that in this case the complainant had failed to do so. 1 Peters C. C. 380 ; 3 Mad. 33.
    3. That the answer of a defendant is to be held controlling evidence until disproved by two witnesses or what is equivalent. ■ Story’s Eq. PL, § 875; 1 Stoiy, 172. That the oath of the defendant to the answer put in by him, cannot be waived by the bill except by the consent of the parties or the order of the court. 1 Hoff. Ch. Pr. 234; 2 Paige, 307 ; 1 Barb. Ch. Pr. 85, 107, 143.
    4. That if the agreement set out in the bill had been proved as stated, it was afterwards varied by parol upon a considerar tion paid therefor*. Hence equity will not decree a perform-, anee. 2 Story’s Eq. Jur. 92, \ 770, note 1, p. 95. That the consideration consisted of the relinquishment by Rogers of his pre-emption of the land.
    5. That the acquiescence of Taylor and Rogers, in the award made between them, embraced and settled the conflicting claims for the land. 5 Littell, 71.
    6. That the submission to arbitrate the disputes between Taylor and Rogers being voluntary, and they acquiescing in the award made, and Rogers having paid, and Taylor received the sum awarded, though not such an arbitration as the statute contemplates, yet the parties to it were bound and concluded by it so far as chancery is available to give relief. 4 Pick. 507 ; 2 Story’s Eq. Jur. 926, § 1458.
    7. That complainant never, in fact, offered to return to Rogers the amount awarded by the arbitration.
    8. That the answers were fully sustained by the proofs.

      Oonnit (& Gillet, for appellees, argued :
    1. That the equitable title of the land in question was in complainant, and that the defendants, Noble and Rogers, were his trustees. 1 Johns. Ch. 582 ; id. 566 ; Story’s Eq. Jur., § 1260.
    2. That no valid contract had been shown under which Rogers could claim any part of the land.
    8. That the assumed arbitration between complainant and Rogers, had no validity or force to affect the title of the land in the complainant.
    4. That if there were any validity or force in the arbitrament and award, it could only be enforced by a bill in chancery. It could not be enforced in this suit unless such a case had been proved as would have entitled Rogers to a decree for a specific performance, had he filed a bill for that object.
    5. Whether the award was valid or not, Noble acquired no right or power to convey to Rogers as based upon such award, and in hostility to the claim of Taylor.

    6. The award was not in conformity with the statute. Rev. Stat. Ter. 279.
    7. The decree should be modified so as to give Noble interest on the money advanced by him up to the time it was tendered to him by complainant, and as to all else it should be affirmed.

   Hubbell, J.

Taylor, tbe complainant, and Rogers, one of tbe defendants, wbo are brothers-in-law, in June, 1846, resided on tbe lands wbicb are tbe subject of tbe present controversy. Both bad made substantial improvements, but neither bad a pre-emption right, nor tbe means of purchasing tbe land from tbe government. In this state of things, Taylor applied to Noble for a loan of two hundred dollars to enter tbe land, and an .arrangement was finally made by wbicb tbe money was advanced. Noble, however, declined wholly to interfere in tbe matter, unless be could have tbe right to convey one-half of tbe land to Rogers, in case be should think it proper to do so, ■within one year. Subject to this express condition, tbe money was put into tbe bands of Taylor, and tbe title of tbe land was taken in Noble’s name, to secure the repayment of tbe money, with twelve per cent, interest, at tbe end of one year. Pursuant to the alleged stipulation, Noble conveyed eighty acres of tbe land do Rogers, on tbe payment to him of one-half of tbe money advanced and interest.

Taylor files bis bill to compel a conveyance to him, by tbe defendants, of the whole one hundred and sixty acres.

This is tbe whole case as I understand tbe testimony. It is not material to inquire whether there was a technical borrowing of the money by Taylor, or whether he became bable to repay tbe whole principal and interest. Noble advanced tbe money voluntarily, and bad a perfect right to dictate tbe terms of the arrangement, and Taylor, by accepting it, became, bound by those terms.

As tbe money was advanced with tbe alleged condition annexed, tbe conveyance to Rogers was perfectly legal and proper, unless there was some fraud or oppression in tbe proceeding, and I can discover nothing of tbe kind. On tbe contrary, tbe motives and conduct of Noble seem to have been equitable and commendable, securing to both of tbe parties an equal share of the government land on wbicb they bad settled with tbe just expectation of obtaining a title. Whether tbe division lines were struck precisely where the respective interest of the occupants, if nicely balanced, would require, this court cannot determine, because the testimony does not show that any specific bound was fixed, in the arrangement between Taylor and Noble. It is enough that substantial justice was done.

Much testimony was produced to show that all the differences between the parties had been settled by a friendly arbitration before the filing of the bill. The binding force of a common iaw arbitration, when properly conducted, is not to be denied. But, in the present instance, the proceedings are quite too loose and uncertain to admit of their being adopted and enforced by this court, and this decision would not be materially varied if they were.

The decree of the circuit court is erroneous, for the reasons before stated, and it must be reversed, with costs.


author: Labkabee, J.

text:
    Ecker and another v. Moore and others.
    1. Evidence — replevin.—In an action of replevin, evidence as to the intent of the defendant in taking and appropriating the property, is immaterial and inadmissible, as his liability does not depend upon the quo ammo which characterized the taking or conversion.
    2. Evidence. — Where an interrogatory is put .to a witness which has no apparent relevancy to the case, and is objected to, it is the duty of counsel propounding it to disclose the matter proposed to be proved, and its relevancy; and failing to do so, it is proper for the court to sustain the objection.
    3. Evidence — statute.—Where, upon notice from the plaintiffs to the defendants to appear and testify on the trial, two of them appear and testify, but the third does not, the plaintiffs have no right, under the statute, by reason thereof, to be sworn and testify in their own behalf. (See statute cited in opinion.)
    (2 Ohand. 85.)

      ERROR to tbe Circuit Court for La Fayette County.
    This was an action of replevin commenced originally before a justice of the peace by the plaintiffs, to reclaim a quantity of lead mineral alleged to have been taken from their possession by the defendants. An appeal was taken in the cause to the circuit court, and on the trial there the defendants obtained a judgment. On the trial at the circuit, the counsel for the plaintiffs took several exceptions to the ruling of the court as respects the admission and rejection of evidence offered by the plaintiffs. These exceptions sufficiently appear in the opinion of the court.

      A. F. Oulver, for plaintiff in error,
    in order to sustain the exceptions taken on the trial, cited 2 Stark. Ev. 739; Burnett R. 57 ; 2 Stark. Ev. 453; 5 Am. Law Cases, 35, 45.

      J. H. Ifnowlton, for defendants in error,
    to show that replevin would not lie in a case like this, cited 8 Cow. 220.
   Labkabee, J.

This was an action of replevin brought by the plaintiffs in error' against the defendants in error, to recover the possession of a quantity of lead ore. The cause was commenced before a justice of the peace, and came to the circuit court of Lá Fayette county by appeal. A trial was had in that court, and a judgment recovered by the defendants. Numerous exceptions were taken to the ruling of the judge before whom the cause was tried, all of which appear in the assignment of errors.

The first error assigned is as follows: The court erred in not permitting one of the defendants, John 8. Moore (who was sworn as a witness under the statute), to answer the following question: “ What reason they had for working and carrying away the mineral on Sunday ? ” This- question was asked and objected to, and by the court deemed improper, it is presumed, on the ground of irrelevancy. In order to decide whether the question was relevant to the issue, it is necessary to consider what the plaintiffs were required to prove in order to maintain tbeir action. The action was replevin, and the wrongful act complained of was the taking and carrying away of the mineral spoken of.

The testimony, as stated in the bill of exceptions, showed that the defendants dug-the mineral, and that they carried it, or a part of it, away from the place where they had dug it, on Sunday. In order to recover, the plaintiffs were obliged to show their right to the immediate possession of the mineral, and the wrongful taking of it by the defendants. I cannot see how any answer which the witness could give to the question asked could have had any effect upon the question before the jury. It is said that the witness might have disclosed the fact that the defendants knew they were taking property which did not belong to them, and that the plaintiffs might prove that fact. The authority cited by the plaintiffs’ counsel in the argument to this point (2 Stark. Ev. 739) does not support the proposition. In all cases where it is necessary to prove intention, it may of course be proved by any legitimate testimony,- but this is not one of the cases. The intention with which the defendants took the mineral had nothing to do with the question before the jury. The plaintiffs might have recovered, although the defendants acted with the utmost good faith, and supposed that they owned the mineral. The question was one óf fact, and not of intention, and I cannot think that the decision of the court was improper in ruling that the question put to the witness was irrelevant.

■ The second error assigned is as follows : The court erred in not permitting the witness, Thomas M. Oranlcshaw, to answer the following question, to wit: “ Is there, to your knowledge, any established rule or custom of the mines in the vicinity, in relation to the' rights' acquired by a person making a lead-ore discovery upon the land of another ? If so, what is that rule ? ”

There cleárly was no error in ruling the question put to the witness to be improper. He was asked if there was a rule, and if there was one, what it was. The court could not see that tbe question propounded to tbe witness bad any relation to tbe one before tbe jury. Tbe question put to tbe witness should have had some apparent connection with tbe case on trial, or have been accompanied by a statement of counsel showing its connection. If tbe plaintiffs intended to rely upon a custom to show their right to tbe mineral in dispute, they should have shown what the custom was which they intended to prove, in order to enable the court to judge of the propriety of admitting proof to establish it.

The third error assigned is as follows: The court erred in refusing to allow the said witness, Thomas M. Cranlcshaw, to answer the following question, to wit: “ Has Mr. McCoskey, to your knowledge, any rule in relation to such rights upon this particular lot?” It is manifest that tins question is obnoxious to the same objections which apply to the preceding one. It relates to the rule, if any, which McCoskey had in relation to the rights of those who dug mineral upon his land. The rule which the owner of the land had in relation to those who dug mineral upon his premises, might or might not have affected the relative rights of those who dug the mineral. The question was general, and had no apparent connection with the case. The court could not see that it had any relation to the question before the juiy.

The fourth error assigned is as follows, to wit: The court erred in not permitting the following question to be put to the witness : “ Do you or do you not know any rule of the mines or custom of the country making a north and south range a dividing line between contending claimants to the same range ? Speak of your own knowledge.” This question differs from the others, by which the plaintiffs sought to obtain proof of a custom, in this, that it is specific. The court could tell what the custom was which was sought to be proved, and thus judge of the propriety of admitting evidence to establish it. But I cannot see that the ruling of the court, by which it was excluded, was improper. There is nothing in the case which makes tbe testimony relevant. It could not bave benefited the plaintifis to prove such a custom, because they could not found any right upon it. The statement of the evidence, contained in the bill of exceptions, shows that the plaintifis were at work upon an east and west range of mineral on land belonging to one McCoskey. To show their right to recover, the plaintifis introduced evidence tending to prove that the defendants dug the mineral in dispute on the same range. It further appears, from the bill of exceptions, that between the places where the parties were thus digging there was a north and south range crossing the east and west range. The testimony shows further, that the plaintifis were digging west of this north and south range and the defendants east of it, and that the mineral in question was dug by the defendants at the place where they were thus digging, east of the range. Now, it could not have availed the plaintifis to prove that there was a custom making a north and south range the dividing line between contending claimants thus situated, because the defendants obtained the mineral in dispute east* of the range, while the plaintifis were at work to the west of it. Nor could the plaintifis be permitted to prove that there was no such custom, because the defendants did not rely upon it and had introduced no testimony tending to establish it. The bill of exceptions shows that testimony had been introduced tending to prove that the parties had agreed to make the north and south range the dividing fine between their respective claims, but it does not appear that any testimony whatever had been introduced upon the subject of the custom. The testimony was therefore properly rejected.

The fifth error assigned is as follows, to wit: The court erred in not permitting the plaintifis to be sworn as witnesses.

The bill of exceptions shows that the plaintifis served a notice on one of the defendants (Moore) that they wished to have all the defendants sworn as witnesses on the trial. The notice was filed with the clerk, among the papers of the case, on the 17th of April, 1848. It was not served personally on either of the defendants, except Moore, nor on their attorney. At the trial, Moore and Oranhshaw appeared and testified, being called by the plaintiffs’ counsel, but Joslin was not present. His failure to appear and testify, or to produce his deposition, taken in pursuance of the statute, the plaintiffs contend, gave them the right to testify. The statute gives either party the right to notify the adverse party that he wishes to have him sworn as a witness, and unless the party notified appears and testifies at the trial, or produces his deposition (which under certain circumstances he is allowed to do), the party giving the notice can himself be sworn as a witness. Stat. 1-841, p. 26. I do not think that the service of the notice was sufficient. There was no service on the attorney of the defendants, nor on either of the defendants personally, except Moot'S. He appeared and testified, and Oranhshaw also, who was not served with notice. It does not appear where Joslin, the other defendant, was ; all that the court can know is, that he was not present at the trial. But, whether the notice was sufficient or not, it is clearly wrong for the plaintiffs to avail themselves of the testimony of two of the defendants, and then, because the remaining one did not appeal-, to have the right to testify themselves. The statute contemplates that the party giving the notice shall have the right to testify, only when the party notified fails to appear; that only one party should testify. If the defendant Joslin had been present and had refused to be sworn, or if he had absented himself after having appeared at the trial, the plaintiffs might perhaps have moved to strike out the testimony of Moore and Oranhshaw, the defendants who had testified, and then have offered themselves as witnesses ; or they might have called upon all the defendants to be sworn in the first instance, and if they did not all appear, they could have insisted on their lights under the statute. But in this case the plaintiffs called upon Moore and Oranh-shaw, who appeared and testified, and after their testimony had been received, Josliirwas called. I think that the decision of the circuit court was correct.

The sixth error assigned is as follows, to wit: The court erred in instructing the jury that there was no such thing as two persons being in possession of the same premises, holding adversely, the one rightfully, the other tortiously.

There can, I think, be no doubt of the correctness of the ruling of the circuit court upon this question. The nature of adverse possession was settled by this court in the case of Whitney v. Powell, ante, 52; but whether the ruling was right or wrong, the question involved does not appear to have had any connection with the case.

The seventh error assigned is as follows, to wit: The court erred in instructing the jury that a person, having the right of working out a range of mineral, could not maintain replevin for lead ore dug and taken therefrom by another party holding adversely ; that if the jury believed, from the evidence, that the plaintifis had merely the exclusive right to dig the lead ore contained in said range, they could not find for the plaintiffs.

This assignment of error brings before the court a very important question, and that is, whether a person going upon the land of another, with his consent, to dig lead ore, and agreeing to give a certain portion of the ore which he may find as rent to the owner of the land, and commences working upon a lead or range of mineral, can maintain this action for ore wrongfully dug at another place on the same land and in the same range of mineral. This point was not fully argued, and it being understood to be a very important question in the western part of the state, where contracts for mining are very often made, the court have concluded to give no opinion upon it, as no decision of it is necessary for the purpose of disposing of this case; for we are ah of opinion-that the evidence, as stated in the bill of exceptions, shows that the plaintiffs gave the defendants permission to dig the mineral in question. This obviates the necessity of deciding whether the instructions given to the jury upon this point were correct or not.

The eighth assignment of error is as follows, to wit: The court erred in instructing the jury that it had heard no evidence that the plaintiffs had alease of the premises from which the lead ore in dispute was raised.

This instruction clearly was not erroneous. There was no testimony in the case tending to show a lease of the land to the plaintiffs, except occupancy. If occupancy of the land by the plaintiffs, for the purpose of digging the ore upon it, tends to prove a lease from the owner, McCoskey, it could not extend to land not so occupied; and the testimony shows that the mineral in dispute was dug by the defendants on land occupied by them. Upon the whole, we are of opinion that the judgment should be affirmed.

Judgment affirmed.


author: Larrabee, J. JacKSON, J., Hubbell, J.,

text:
    Clark v. Miles and another.
    1. Appeal. — Where in taking an appeal from the judgment of a justice of the peace, the party does not fully comply with the statute, it will he dismissed, notwithstanding the statutory security has keen given.
    2. Same — recognizance.—Where an appeal is dismissed, the party who brought it, with his sureties in the recognizance, will be immediately liable thereon for the amount of the judgment rendered by the justice. Jackson & Hubbell, JJ., dissenting. Love v. Rockwell, 1 Wis. 382.
    (2 Ghand. 94.)
    ERROR to the Circuit Court for La Fayette County.
    The • case was this : Miles, one of the defendants in error, undertook to take an appeal from a judgment rendered against him, but in that proceeding neglected to file before the justice the affidavit required by the statute. The justice, nevertheless, allowed the appeal, but the late district court dismissed it when brought before that tribunal. An action was then brought by the plaintiff in the judgment, against Miles and his surety on the bond given on taking the appeal, and that court rendered judgment against the plaintiff in error, upon the ground that the dismissal of the appeal carried with it and invalidated the appeal bond, and that an action in that case could not be maintained upon it. The writ of error in this case is to procure a reversal of such judgment.

      John ATi Williams, for plaintiff in error.

      J. II. Ilnowllon, for defendants in error.
   Larrabee, J.

It appears from the record in this cause that the defendant Miles took every step to entitle him to an appeal, with the single exception of filing an affidavit with the justice, as is required by the statute. An appeal was allowed by the justice, and subsequently dismissed by the district court. Thereupon the plaintiff brought his suit in the circuit court, upon the recognizance filed by the defendant, with Barretto as surety, and that court rendered judgment against him.

The appeal was properly dismissed in the first instance, as the affidavit was absolutely required by the statute; but the question now presented, is, whether that dismissal rendered the recognizance void. We think not. One of the conditions of the recognizance (of which a form is given in the statute) is, that the appellant shall pay the amount of the judgment rendered against him before the justice, including costs of appeal, with interest, in case his appeal shall be dismissed or discontinued.

It was not the fault of the appellee that no affidavit was filed, nor can he be made to suffer for either the negligence of the appellant or of the justice. It was not for Mm to inquire into the reason for the dismissal of the appeal; he was satisfied that it was dismissed. He had been subjected to delay and expense because of the voluntary action of his antagonist, and it would be harsh indeed to drive Mm back to bis execution upon the justice’s judgment, and thus deprive Mm of all indemnity for tbe delay and costs of the appeal.

We regard his right to sue upon the recognizance as perfect from the time of the judgment of the district court. It was a voluntary.security for the payment of the judgment, and once given, could not, be withdrawn by the party, nor invalidated by the judgment of the supreme court.

We think, therefore, that the judgment of the circuit court was wrong, and must be reversed.

Judgment reversed.

JacKSON, J.,

dissenting. I am constrained to dissent hi this case from the opinion of a majority of the court.

The simple question arising upon the facts presented is, whether a recovery can be had upon an appeal bond, taken without any authority of law, and under wMch the party giv-mg it can acquire no legal rights ?

I think the weight of authority, as well as every sound principle of reasoning, is clearly against the right of recovery in such a case.

The following is the provision of the statute in relation to appeals from justices’ courts :

No appeal shall he allowed in any case, unless the following requisites are complied with within ten days after judgment rendered, viz.: “ 1. An affidavit shall be filed with the justice before whom the cause was tried, stating that the appeal was made in good faith, and not for the purpose of delay. 2. A recognizance entered into by the party appealing, his agent or attorney, to the adverse party, in a sum sufficient to secure such judgment and costs of appeal, must be entered into, with one or more sureties, to be approved by the justice.”

It is manifest, from this provision of the statute, that, no matter how erroneous the judgment, how perfect the form of the recognizance, or how ample the sureties; unless the affidavit is made and filed, as required by law, the party aggrieved by the judgment can have no appeal.

The record in this case shows that no affidavit was filed with the justice. It also appears from the record that, notwithstanding no affidavit was filed, the justice, in violation of the statute, received the recognizance of the appellant, and allowed an appeal. ,

When the case was brought before the circuit court, it was dismissed for want of jurisdiction, thb court- deciding that the appeal, having been allowed by the justice in'violation of law, was improperly in the circuit court, and that that court had not acquired, and could not entertain jurisdiction of the appeal. I think that the cause was not properly in the circuit court for any purpose. But it is insisted that although the appeal was illegally allowed, yet that the recognizance was valid. It has been repeatedly held, both in civil and in criminal cases, that recognizances taken without authority of law, and not in compliance with the statutory provisions under which alone they were authorized, are void. People v. Koeber, 7 Hill, 39; Bridge v. Ford, 4 Mass. 641; Vose v. Deane, 7 Mass. 280; Harrington v. Brown, 7 Pick. 232; Green v. Haskell, 11 Shep. 180; People v. Brown, 23 Wend. 47; Seymour v. Judd, 2 Comst. 466.

I doubt whether an adjudicated case can be found where a recognizance taken in violation of law, and under which the party who gave it received no benefits and acquired no legal rights, has been enforced.

If, in this case, no motion had been made in the circuit court by the appellee to dismiss for want of jurisdiction; if the case had there proceeded to final hearing upon the merits, without objection, and the appellant had had the benefit of his appeal, he might then, perhaps, have been estopped from interposing as a defense to the recognizance that,it was taken by the justice without authority. Van Deuzen v. Hayward, 17 Wend. 69. According to the decision, however, in the ( case of Latham v. Edgertan, 9 Cow. 227, the appellant would not even then have been estopped from denying the validity of the recognizance.

It is contended that the recognizance ought to be held valid, because the appellee, by reason of its having been received and accepted by the justice, was hindered and delayed in the col-, lection of Iris judgment. If this be true, whose fault was it ? Was it that of the appellant who executed the recognizance, or that of the justice who improperly received it ? If the fault of the latter, then, surely the appellant ought not tosuifer.

But I think it did not necessarily follow that the appellee was either hindered or delayed in the collection of his judgment. According to the decisions, both in New York and in Massachusetts, in analogous cases, the judgment rendered by the justice remained in full force, and was neither vacated nor suspended by the improper allowance of the appeal. The appeal was a mere nullity. Ex parte Chrysler, 4 Cow. 80; Latham v. Edgerton, 9 id. 227; Seymour v. Judd, 2 Comst. 466; Campbell v. Howard, 5 Mass. 377; Ladow v. Groom, 1 Denio, 429. It appears to be well settled that jurisdiction of the cause does not, of itself, give the justice jurisdiction of the appeal, hi a case where a justice of the peace has jurisdiction over the parties and of the subject matter, and is, therefore, authorized to render judgment, yet, unless the provisions of the statute providing for an appeal be complied with, the justice has no jurisdiction of the appeal.

The case of ex parte Chrysler, 4 Cow. 82, was one of this character. In that case the court say: “It seems to be the intention of the legislature that the party shall not be heard on appeal unless he comply strictly with the terms of the act. The court below acquired no jurisdiction of the appeal. There is no cause concerning which he can interfere.” The court also, in the opinion given, further declare that the appeal “had no force or effect whatever.”

These positions are strengthened by numerous decisions in the courts of the different states, in cases in some respects of a similar character.

In a late case in'Pennsylvania (The Commonwealth of Pennsylvania for the use of Erie County v. Buel Phillips) it was held that, as a justice of the peace in Pennsylvania had no power to admit to bail one charged with the crime of arson, a recognizance taken by him for the appearance of the defendant to answer such charge is comm non judice and wholly null and void.

Upon the same ground, in the case of the People v. Koeber, 7 Hill, 39, the recognizance was held invalid, the justice having no authority by law to take a recognizance in such a case. So in Olds v. The State, 6 Blackf. 91, a bond taken by a justice of the peace from a constable, whom he appointed without any legal authority, was adjudged void.

The People v. Brown, 23 Wend. 47, was an action of debt upon a recognizance for good behavior entered into by a defendant, as a disorderly person, pursuant to the revised statutes of New York. The defendant having been convicted of the offense and committed, could only obtain his discharge, under the statute, by appearing before two justices and giving the required sureties. No exception appears to have be$n taken to the form of the recognizance. It was held invalid upon the sole ground that, as the statute required the intervention of two magistrates, the justice had no power singly to take the recognizance.”

CowEsr, J., in deciding the cause, declares the recognizance “utterly void on common-law principles of construction, but especially within the strong and broad language of the 2 R. S. 214, § 60, 2d ed., as not being taken by the officer in a case or in the manner provided by law.”

Iu a case recently deckled in tbe supreme court of New York (Cadwell v. Colgate et al.), where an attachment was issued against a non-resident debtor on affidavits which were insufficient to confer jurisdiction upon the officer issuing it, and after a levy made by the sheriff on the property of the debtor, the latter procured its release by executing and delivering a bond with sureties, reciting the issuing of the attachment, and conditioned, as required by statute, for the payment of the debt, with interest, costs, etc., the bond was adjudged to be void.

In view of the facts in the case at bar, of the provisions of our statute in relation to appeals from- justices of the peace, and of the authorities which I have cited, I am of the opinion that the plaintiff below ought not to recover, and that the judgment of the circuit court, instead of being reversed, should be affirmed by this court.

Hubbell, J.,

dissenting. I concur in the dissenting opinion of my brother JacksoN. Without an affidavit the justice acquired no jurisdiction of the appeal. Until the affidavit was filed, the recognizance was mere waste paper in his hands. He must be possessed of both to give him authority to allow the appeal, and his assuming to allow the appeal gave no legal effect or vitality to the recognizance. The whole proceeding towards perfecting the appeal was coram non judice ; as much so as if the justice had allowed an appeal without a judgment.

The circuit court, by assuming to “ dismiss the appeal,” neither gained any jurisdiction over it, nor gave legal effect to the proceedings of the justice or to the recognizance taken as one step towards perfecting an appeal.

There was no appeal before the circuit court to be dismissed. There was a case on its docket not properly there, which should have been struck off. The judgment before the justice remained perfect, and the parties should have been left to then-remedies in that court.

       That a bond not good as a statutory one, is nevertheless binding as a voluntary obligation upon which an action at common law may be maintained, and is not void unless the statute so declares it, is a position well established. See Lewis, governor, etc. v. Stout, 22 Wis., where the principal authorities are collated in the opinion of DixoN, C. J. But in the case of Love v. Rockwell, 1 Wis. 386, the liability of the defendant in a like case, is placed upon the ground o estoppel. The statute required the security on an appeal to be by recognizance and in a form prescribed by it, which recites among other things that an appeal has been taken, etc. B. S. 1849, ch. 88, $ 229. And in that case the court held that the defendant was estopped from contradicting such recital, and from alleging that an appeal had not been taken.


author: WhitoN, J.

text:
    Robbins and another v. Gillett, Administrator of Gillett, deceased.
    1. Pleading — trespass.—Where in a declaration for . trespass, it is charged that the defendants broke and entered the close of the plaintiff, “administrator as aforesaid,” and throughout alleges the injury to have been done to the plaintiff’s close, held,, that these words were mere desprvptio pisonee, and that the count was in his personal and not in a representative capacity.
    2. Pleading — joikder op Causes op action. — An executor or administrator may join a cause of action which accrued to the testator or intestate, with one which has accrued to him in his representative capacity, if the money, when recovered, would be assets.
    3. Same — executor—administrator.—Where an executor or administrator sues in his representative capacity, he cannot join causes of action which have accrued to him in his personal capacity with those which have accrued to him as executor or administrator.
    (2 Ghand. 96.)
    ERROR to the County Court for La Fayette County.
    This was an action of trespass guare clausum fregit brought by the defendant in error as administrator, etc. There were two counts in the declaration. The first set out a cause of action in his own right; the second a cause of action accruing to him as administrator.
    To this declaration the defendants demurred specially; assigning several causes, as follows : 1. That the .declaration contained two causes of action; one in right of the plaintiff below, and another in right of himself as administrator. 2. That the declaration was double, and set out two distinct causes of action. ■ 3. That the declaration does not, in the second count, aver that the decedent Benoni R. Gillett was seized, at the time of his death, of the premises upon which the alleged trespass was committed. 4. That the second count alleges that the defendants below committed waste, spoil and destruction of the freehold of the decedent. 5. That the declaration did not allege that the defendants frelow committed the trespass subsequently to the death of Benom R. Gillett. 6. That both counts of the declaration virtually-set up a right, solely in the plaintiff below, to maintain the action on his own account. 7. That the declaration did not allege the injury to have been done to the plaintiff’s damage, etc. The court overruled the demurrer, and gave judgment for the plaintiff for the amount claimed in the declaration, and the cause came into this court by a writ of error.

      A. F. Culver, for plaintiffs in error,
    cited in support of the several points made by the demurrer, 1 Chitty Plead. 234, 260 ; Tollers Ex’rs. 176 ; Rev. Stat. 367 ; 5 Wend. 36.

      M. M. Colhren, for defendant in error.
   WhitoN, J.

This was an action of trespass guare clausum fregit, brought in the county court of La Fayette county, by the plaintiff, as the administrator of the goods, etc., of Benoni R1. Gillett, deceased.

By chapter 69, section 7 of the Revised- Statutes, it is provided that the executor or administrator, shall have a right to the possession of all the real, as well as the personal estate of the deceased, and may receive the rents, issues and profits, etc.

Under this section, the plaintiff claims the right to maintain this action.

The declaration contains two counts, to which a .demurer was' interposed; the demurrer was overruled by the court, and a judgment rendered for the plaintiff.

’’VVe are satisfied that the judgment is erroneous. The first count charges that the defendants broke and entered the close of the plaintiff, “ administrator as aforesaid,” and throughout, alleges the injury to have been done to the plaintiff’s close. The addition of the words “ administrator as aforesaid,” does not alter the nature of the allegation, as these words are a mere descriptio personae. Myers v. Cole, 12 Johns. 349.

The second count, on the contrary, sets forth an injury to the land belonging to the estate of the deceased, and contains an averment that the plaintiff was duly appointed administrator, etc. It is clear that damages recovered for the injury complained of in this count, would be assets in the hands of the administrator, while those recovered in the first count would not be. Formerly it was held that an executor or administrator could not join a cause of action accruing to the testator or intestate with one accruing to himself in his representative capacity; but now the better opinion seems to be that whenever the money, when recovered, would be assets, the executor or administrator may declare for it in his, representative character. Williams on Ex’rs, 1329 ; 8 Wend. 530. But when he sues in this character, he cannot join counts on causes of action accruing to him individually with those'which have accrued to him as executor or administrator. 1 Chitty’s PI. 234. The declaration in this case is therefore bad for charging the defendants with a trespass to the land of the plaintiff, and also one tb the land belonging to the estate of the deceased, the action being brought by the plaintiff in his representative character.

Judgment reversed.


author: ^row, O. J.

text:
    Ercanbrack v. Rich and another.
    1. Pleading' — eobeolosube.—It is sufficient, in a bill by an assignee of a mortgage to foreclose it, to state generally that the bond and mortgage have been assigned to him for a valuable consideration, and the assignment need not be set out more fully or specifically.
    2. Same. — A. bill to foreclose a mortgage 'which states that no proceedings have been had to collect the debt, will not be held bad on demurrer for failing to state what part of the debt has been collected, an allegation in that behalf being necessary only where proceedings have been had at law.
    (2 Oliand. 100.)
    APPEAL from the Circuit Court for Dodge County.
    The bill filed in this cause was for the foreclosure of a mortgage executed with a bond as collateral security for the payment of the sum by the appellants, Roper and Rich, wherein it was alleged that the securities were executed, to one William Cady for securing the payment of the purchase money of the land therein described. The bill alleged that the bond and mortgage had been duly assigned to the appellee for a valuable consideration, and alleged that $644.22, with interest at the rate of twelve per cent, from the date of the securities, remained unpaid, and that no proceedings had been had at law to recover the debt secured by the instrument. The bill prayed a foreclosure of the mortgage and a sale of the mortgaged premises.
    The defendants, the appellants here, demurred to the bill, and assigned the following causes :
    1. That it did not appear by the bill by whom the mortgage was assigned; nor what consideration was paid; nor that the assignment was in writing, under seal; nor that such assignment was acknowledged or recorded. •
    2. That it did not appear by the bill whether the debt secured by the bond and mortgage, or any part thereof had been collected.
    The court overruled the demurrer, and the cause came into this court, on the appeal from that decision.

      O. Billinghurst, for the appellants,
    argued that the want of form in chancery pleadings is as fatal as in pleadings at law. Story’s Eq. PL § 454. That the office of a demurrer in-equity pleading is to reach objections apparent on the face of the bill, upon matter stated, or which should have been stated in it. Id. § 448, 443. That the causes of demurrer assigned showed the bill to be defective in the particulars stated by the demurrer ; that in pursuance of the provisions of the Revised Statutes, the bill, in addition to the statement that no proceedings had been had at law for the recovery of the mortgage debt, must show that no part thereof had been collected; that where special jurisdiction is given by statute, the record must show a case within the statute, otherwise the jurisdiction will not bo presumed. 2 Dana, 270.

      Oollins & Smith, for the appellee,
    argued that the bill set forth the matter with that degree of certainty which is required at common law. 1 Barb. Ch. Prac. 38. That the statement in the bill of the assignment of the mortgage was sufficient; that the statement in the bill that no proceedings at law had been had for the recovery of the mortgage debt was sufficient. Patterson v. Powers, 4 Paige, 549.
   ^row, O. J.

This is a bill for the foreclosure of a mortgage, the complainant being the assignee of the original mortgagee. The defendants demur, and assign as causes: 1. That the assignment to the complainant is not set forth; and, 2. That the bill does not state whether the debt, or any part of it, has been collected. I think there is nothing in this demurrer. The bill states that the mortgage and collateral bond, had been, for a valuable consideration, assigned to the complainant, and were held and owned by him. This was enough to entitle him to sue. He was not bound to set forth the evidence of his right. The objection that it does not appear that no part of the debt has been collected is not applicable, as the bill states that no proceedings had been had at law ; and it is only when such proceedings have been had, that it is necessaiy to show what has been collected.

Decree affirmed.


text:
    Byron v. May.
    1. Equity — forbciosure.-—Where a mortgage contains a power of fore-closm'e, by advertisement under the statute, the mortgagee is not precluded thereby from maintaining a bill in equity for the foreclosure of it, the remedy provided by statute being cumulative merely.
    2. Same. — Courts of equity have inherent original jm-isdietion of mort- - gage cases, which is recognized and regulated by the statute.
    (2 Ohand. 103.)

      APPEAL from the Circuit Court for Hock County.
    The bill filed in this cause is for the foreclosure of a mortgage.
    The defendant filed his plea, setting up that in the mortgage mentioned in the bill, among other' things, it was covenanted and agreed that, in case of the non-payment of the sum of money mentioned in the mortgage, or any part thereof, at the time or times therein limited for the payment thereof, or in case of the non-payment of the taxes that might be assessed on the mortgaged premises, then and in either case the whole of the sum mentioned in the mortgage would be deemed payable, and that it should or might be lawful for the complainant, his heirs, executors, administrators or assigns, and the defendant did thereby covenant and agree, and by said mortgage did empower and authorize the complainant, his heirs, executors, administrators and assigns, to grant, bargain, sell, release and convey the premises in the mortgage and the bill described, with the appurtenances, at public auction or ven-due, and on such sale to malee and execute to the purchaser or purchasers, his heirs or their heirs and assigns forever, good, ample and sufficient deeds of conveyance in the law, pursuant to the statute in such case made and provided; and, that therefore this court has not jurisdiction of the matters alleged in' the bill, because the complainant has a plain, adequate and complete remedy at law, under and by force of the statute in such case made and provided; therefore the defendant pleads the matter aforesaid, and prays the judgment of the court, etc.
    The cause afterwards came on to be heard, and the plea of the defendant was overruled; the complainant’s bill was taken as confessed by the defendant and the usual decree was made and entered, and the defendant appealed to this court.

      A. Hyatt Smith, for appellant.
    The circuit court derives its power to act as a court of chancery solely from the statute, and has no jurisdiction of any case in which a plain, adequate and complete remedy can be had at law; while courts of chancery, according to general equity principles, have jurisdiction to enforce remedies which cannot be enforced in courts of common law. Rev. Stat. ch. 84, § 1; 1 Story Eq. 27.
    The statute furnishes a plain, adequate and complete remedy in the case of a mortgage containing a power of sale. Rev. St'at. ch. 121.

      'J. A. Sleeper, for appellee.
    1. Courts of equity in this state are not ousted' of their jurisdiction in cases of mortgage foreclosure, by the statute, which authorizes proceedings to foreclose by advertisement. Rev. Stat. ch. 84, §§ 1, 76-91; Scuilly v. Mmare, 2 Paige, 497 ; Charter v. Stevens, 8 Denio, 33.
    2. The statute authorizing foreclosure by advertisement is cumulative, and does not in terms repeal the common law; at all events, the statute authorizes the foreclosure of a mortgage, by bill filed in the circuit court. Rev. Stat. ch. 84, §§ 76-91.
    3. The fact that a power of sale is contained in the mortgage, does not compel the mortgagee thus to proceed. He may still pursue his remedy in a court of equity. Sailly v. Mimare; Charter v. Stevens, supra. Burdick v. McVanner,

    2 Demo, 170 ; Gordon v. Hobart, 2 Sumn. C. C. 401; Baker v. Biddle, 1 Bald. C. C. 405 ; 3 Pet. 210, 215.
   Hubbell, J.

There is but one question in this case— whether a court of chancery can properly entertain proceedings for the foreclosure of' a mortgage containing the usual power of sale ?

The appellant contends that the statute, providing for a forclosure by advertisement, furnishes “ a plain, adequate and complete remedy; ” and hence, chancery is excluded from jurisdiction.

This position cannot be admitted. Equity affords, in most cases, the best remedy, and in some, the only adequate relief, as in cases of strict foreclosure. The power to decree and compel delivery of the mortgaged premises, and to decree and direct payment, by the mortgagor, of any balance of the mortgage debt which may remain unsatisfied is possessed alone by the courts of chancery, and is oftentimes essential to the rights of the mortgagee.

“ It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient, to the ends of justice and its prompt administration, as the remedy in equity.” Boyce's Ex’rs v. Grundy, 3 Pet. 215. This is undoubtedly the sound rule, and applying it to tins case, there can be no question but that the remedy at law is not so perfect as to preclude the jurisdiction of chancery. It is a mistake, however, to suppose that the power of the court in foreclosure suits is conferred, or restricted, by the first section of chapter 84 of the statutes (p. 413), which provides, that “ the circuit courts of the state shall have jurisdiction in cases properly cognizable by a court of chancery, in which a plain, adequate and complete remedy cannot be had at law.” Such power is especially conferred by the subsequent sections (76 to 91 inclusive), which prescribe the proceedings “for the foreclosure or satisfaction of a mortgage,” and authorize the court “ to decree a sale of the mortgaged premises.”

This grant of power is clear and specific, and is wholly indépendent of the question, whether there is a plain, adequate and complete remedy at law. It is equally independent of the statutory provision, authorizing a sale by advertisement, in pursuance of the power contained in the mortgage. That remedy is merely cumulative, and not in conflict with the jurisdiction of equity, also conferred by the statute.

But I wish to place this decision upon higher ground. The jurisdiction in question is not derived from the statute. Courts of equity have inherent original jurisdiction of mortgage cases, springing up from the enlightened principles of natural justice. It must be remembered that at common law, a mortgage of real estate was an absolute conveyance of the land in fee simple, subject to be defeated only by the payment of the mortgage debt at the time and place specified ; and, in ease of failure to pay, the land was lost or dead to the mortgagor. Co. Lit. 205a; 2 Black. Com. 157; 4 Kent, 131. And such is the law at this day with respect to mortgages of personal property, notwithstanding the usual power of sale therein. Burdick v. McVanner, 2 Demo, 170. To mitigate the extreme severity of this rule in relation to land, courts of chancery early interposed. They proceeded upon the principle' of preventing oppression and injustice. And with tins object, not only insisted upon the right of redemption, but treated with great jealousy all contracts made -with the mortgagor to lessen, embarrass, or restrain it. The untrammeled minds of England’s chancellors first broke through the mists of the common law upon this important branch of jurisprudence. And although Sir Matthew Hale “ complained severely” of the growth of equities of redemption, the enlightened doctrines of Nottingham and HaRBwick, triumphed over technicalities, and finally extended themselves even to the courts of law. Chancellor Kent, upon this subject, speaks with more than his usual zeal and eloquence. “ In ascending,” says he, “ to the view of a mortgage in the contemplation of a court of equity, we leave all these technical scruples and difficulties behind.”

Not only the original severity of the common law, treating the mortgagor’s interest as resting upon the exact performance of a condition, and holding the forfeiture or the breach of a condition to be absolute, by non-payment or tender at the day, is entirely relaxed; but the narrow and precarious character of the mortgagor’s rights at law is changed under the more enlarged and liberal jurisdiction of the courts of equity.

Their influence has reached the courts of law, and the case of mortgages is one of the most splendid instances in the history of our jurisprudence of tbe triumph of equitable principles over technical rules, and of the homage which those principles have received, by their adoption in the courts of law. Without any prophetic anticipation, we may now well say, that “ returning justice lifts aloft her scale.” 4 Kent’s Com. 151.

Impressed with these grateful recollections, we should hesitate before adopting a principle which would expel courts of equity from a field in which they have accomplished so much good and won so much glory. But the proposition of the appellant goes even further, and in effect excludes also courts of law ; tying up proceedings on foreclosure to a naked statutory provision, which in the end must be found as rigid and technical as the mortgage itself, in the eye of the ancient law. •This is the first attempt, I think, by any mortgagor, to sever his connection with a court, which gave birth to all Ins rights, and which can alone certainly and effectually protect them. And if it should prove successful, we might expect to see the scale of “ returning justice,” speedily and fatally descending.

The power of sale inserted in the mortgage, authorizing its foreclosure by advertisement and public sale, although designed, perhaps, to lessen the expense and simplify the proceedings, is nevertheless a power wielded by the mortgagee. It is one of the numberless contrivances by which the holders of securities have sought to evade or overthrow the right of redemption. Properly viewed' — as a mere cumulative remedy — it may be found convenient in practice, and it neither excludes the jurisdiction, nor obviates the utility of a court of chancery. The interposition of that court is still indispensable, on the part of the mortgagor, to protect the equity of redemption, to extend the time for sales, to open sales improperly made, and to decree a re-conveyance when the mortgage debt is paid ; and on the part of the mortgagee, to restrain waste, and to appoint a receiver of rents and profits, in case the property is not likely to pay tbe debt and costs.

Had there been in this state no special act conferring tbe jurisdiction in question, it must have sprung incidentally from tbe general powers conferred upon tbe circuit court by tbe constitution, tbe power to enforce tbe performance of contracts, to direct tbe execution of trusts, and to grant relief in cases of fraud and oppression. These powers are generic and inherent in courts of equity. They are inseparable from their existence, and are conferred by tbe constitution by tbe very act of then creation.

This court would be abke derebct to itself and to tbe people whose interests it has in charge, not to assert and vindicate this rightful portion of its jurisdiction.

Li every view of this case tbe decree must be affirmed, with costs.


author: Stow, C. J.

text:
    Benaway v. Bond.
    1. Justice's court — judgment.—A cause having- heen tried before a justice, he announced his decision, and made a memorandum of the judgment concluded upon, and gave it to a third party to enter it in form on his docket, but the judgment was not so entered, and the memorandum was afterwards lost. Held,, that no valid judgment had been given in the action.
    2. Same. — A judgment in justice’s court need not be in precise legal form in order to be valid, yet it must, in fact, be entered in his docket, or record in some form, in order to constitute a valid judgment.
    (2 Ghand. 110.)
    ERROR to tbe Circuit Court for Rock County.
    This was an action of assumpsit, brought before a justice by the plaintiff in error against the defendant in error, wherein tbe plamtiff declared upon a promissory note. Tbe defendant pleaded tbe general issue and a former recovery of judgment. Tbe plamtiff replied that there was no such record. On tbe trial of tbe cause tbe plaintiff offered in evidence tbe note declared upon. Justice Tompkins was sworn and examined as to a judgment before Mm, not reduced to writing, wMck evidence was objected to by tbe plaintiff, but tbe evidence was received, subject to be considered by tbe justice. This evidence was rejected, upon consideration, and a judgment rendered for tbe plaintiff for tbe amount of tbe note and tbe costs of suit.
    An appeal was taken from this judgment to tbe circuit court,*and a trial thereon was bad. On such trial tbe plaintiff below gave tbe note in question in evidence, and rested. The defendant below introduced justice Tompkins as a witness, who testified that be was a justice of Rock county for tbe year preceding tbe first of April, 1848 ; that as such justice be kept a docket in which be made entries of judgments rendered by him ; that such docket was lost; that he bad searched for but could not find it; that in December preceding that time, there was a trial before him, in which tMs plaintiff was plaintiff, and this defendant was defendant; that tbe plaintiff declared on promises, and tbe defendant pleaded tbe general issue, and gave notice of set-off; that' in tbe bill of particulars of tbe defendant, Bond, tbe note in question, declared bn by tbe plaintiff, was set off; that, on tbe trial before Mm, it was given in evidence in set-off against tbe plaintiff’s claim, and that there “ was such an adjudication therein, that judgment was rendered and declared in court for tbe defendant for about tbe sum of $14 ; ” that be never made any entry of tbe judgment on bis docket, but at tbe time of tbe rendition of the judgment, made a minute of tbe judgment on a piece of paper, and as be supposed, delivered it, together with the other papers, to one Moses S. Prichard (being himself then unwell), to make tbe record upon tbe docket; that since that time he has not seen tbe said minute, though be bad made thorough and diligent search for tbe same.
    To all of the- evidence of said Tompkins, tbe defendant below objected, claiming that nothing less than tbe record of the judgment could support the issue on the part of the defend ant, but the court admitted the evidence. The defendant then produced the said Moses S. Prichard, who testified that when the papers were delivered to him by the justice, Tompkins, no minute of the judgment in the cause was among the papers, and that, therefore, he did not make up the record as directed by Tompkins; that he had examined his papers, and had made diligent and thorough search for said minute but could not find it; that the trial of said cause was held in the witness’ office.
    The defendant also proved, by Charles H. Parker, that he was counsel for the plaintiff on the trial before justice Tompkins, and that said Tompkins ascertained the amount for which judgment was to be rendered by a calculation made by him on a piece of paper, but could not say whether there was any writing on it or not; that the judgment was, however, declared at the time by the justice.
    The counsel for the defendant requested the court to charge the jury, that if they found that a trial had previously been had between the same parties before justice Tompkins, in which the note in question had been properly made a set-off, though no record or entry of a judgment had been made- in the docket of the justice, yet if they should find that the justice, at the time of the rendering the judgment, made a minute of it in wilting, which minute had been lost by the justice, they must find for the plaintiff.
    The court charged the jury that if they should find, from the evidence, that no actual entry of judgment was made in the docket of the justice, there was no legal and valid judgment proved, and consequently they must return a verdict for the amount of the note. The jury found a verdict for the plaintiff for the amount of the note declared upon, and judgment was entered thereon.

      A. Hyatt Smith, for plaintiff in error,
    urged that a former suit and recovery for the same causq of action may be given in evidence under the general issue in assumpsit (Cow. & Hill’s Notes on PM. Ev. 804-810; id. 971 ; 2 Hill, 478 j 5 id. 60 ; 6 id. 114 ; 3 Barb. 59 ; 2 Johns. 181) ; that after a cause is submitted, if a justice render judgment in the time limited by law, it is a valid judgment; that the entry of it is mere evidence of its rendition, as it was at common law valid, though made at any time, and open to correction according to the truth (Hall v. Tuttle, 6 Hill, 38) ; that the neglect of the justice to enter the judgment ought not to deprive the party of the benefit of it. Parol proof may be given of the rendition of a judgment. Cow. & Hill’s Notes, 1106 ; 3 Bam. 6 C. 444.

      J. A. Sleeper, for defendant in error,
    urged that a judgment was of effect, only so far as the entry of it appeared ; that the existence of it could not be established by mere recollection (3 Denio, 72 ; 11 Johns. 166 ; Greenl. Ev. 623) ; that at common law no proceeding had before a justice could be proved by parol (13 Johns. 184 ; 5 id. 131, 351; 3 id. 229 ; 10 Wend. 526 ; 3 Johns. 429 ; 3 Wend. 267 ■ 10 id. 828) ; that the statute expressly provided for the mode of proving judgments, and that, therefore, they could only be proved as prescribed by it.
   Stow, C. J.

This was a suit upon a promissory note admitted to have been made by Benaway, the defendant below. The defense was a former recoveiy. In support of his plea, the defendant called as a witness William F. Tompkins, who testified that previous to the commencement of this suit a cause was tried before him, as a justice of the peace, between these parties, in which Bend “ put the note hi evidence as an offset, and such an adjudication was therein had, that judgment was rendered and declared in court for the defendant, for about the sum of fourteen dollars ; that he, the justice, never made any entry of the judgment in his docket, but at the time of the rendition of the judgment made a minute of the amount on a piece of paper, and, being himself unwell, delivered, as he supposed, the minute to one Prichard to make the record on the docket; that since that time he had not seen the minute, though he had searched for it.” This testimony was objected to, and finally ruled out by the circuit judge, on the ground that the judgment could be proved only by the docket, or a transcript of it.

Though the amount in controversy is veiy small, the principle involved in this case is of considerable moment, and it is important that it should be settled; and hence we have given the subject the most careful attention, and examined critically all the numerous authorities to which we have been referred, and the result of our investigation is, that the circuit judge decided correctly, and that the judgment should be affirmed.

The books — that is, the American state reports — are full of cases growing out of justices’ judgments, and the questions which they have occasioned — What is a justice’s judgment ? when and how is it rendered, and how can it be proved ?— are almost innumerable; while the responses of the courts have become, in a measure, oracular, from their never-ending contradictions. And yet it is singular that amid all this confusion and looseness no one case has been found where effect has been given to a justice’s judgment never actually entered. Judgments recorded long after the expiration of the time provided by the statute, even years after the justice had gone out of office, and those written on loose sheets of paper have been held valid; but some record, the docket or other written evidence, has in all instances, as far as I can discover, been held indispensable to their authentication. We think it would be unsafe and unwarranted in us to dispense with this proof, certainly not in the case before us. The justice no doubt made a decision, but by his negligence in not entering it in his docket, and by the negligence of the party who desires to avail himself of it in not procuring it to be so entered, there is no legal evidence of its existence as a judgment; nor does any such state of things appear as to dispense with this proof. The accident that the magistrate happened at the time to be unwell, and gave his memorandum to his clerk, is no excuse for not having the judgment docketed afterwards.

Judgment affirmed.