text:
    Anderson vs. Rountree.
    1. Pleading.—After a special demurrer has been sustained to a plea in abatement, it is not error to allow the defendant to plead over.
    2. Same.—After leave is given to the defendant to plead over, it is not error to allow him to plead in proper form, the same matter in abatement embraced in the plea which had been held bad, on special demurrer, for informality.
    3. Privilege erom arrest. — The privilege from arrest secured to members of the legislative assembly, not only exempts their persons from actual arrest, but also exempts them from suit or any civil process, which may interfere with their public duties, during the continuance of their privilege. It is the privilege of the people as well as of the individual members, and of the house.
    ERROR to the District Court for Dane County.
    This was an action of assumpsit, commenced by summons, and brought by Anderson against Rountree, in the Dane county district court. Rountree was a member of the legislative council, and process was served upon him on the next day after the adjournment of the legislative assembly. At the return term the defendant pleaded his privilege in abatement of the suit, to which plea the plaintiff demurred specially, and, the demurrer being sustained on the ground of the informality of the plea, leave was given to the defendant to plead over. The defendant then pleaded, formally, his privilege in abatement, by way of an amended plea, which plea the plaintiff moved the court to reject as a nullity; but the court overruled the motion. The plaintiff then filed a general demurrer to the amended plea, which demurrer the court overruled, and gave judgment for the defendant. To reverse this judgment, the plaintiff prosecuted a writ of error.

      David Brigham, for plaintiff in error.
    1. The plea of privilege could not avail the defendant, as the process was a summons; the word “ arrest ” has a technical meaning, and could be used in no other sense, and referred to the Statutes of Wisconsin, 35, 157. If a privileged person should be arrested he would be discharged, but the suit would continue. Bacon’s Abr., title Privilege; Const. U. S. art. I,- § 6; 3 Chitty’s Gi-en. Prac. 357, 358, 359 ; Tidd’s Prac. 219-221; 1 Johns. Cases, 415; Doty v. Strong, ante.
    2. That whether the matter pleaded be sufficient or not, it was not pleaded at the proper time or in due form; that the defendant could not file a second or amended plea in abatement after judgment of respondeat ouster. On this point he referred to 1 Chitty’s Plead. 457; Bacon’s Abr., title Abatement, letter O; 1 Tidd’s Prac. 563, 565, 640, 641, 638 ; 6 East, 583 ; 1 Yesey, 202, 203 ; 6 Maulé & Selw. 88; 5 Mass. 362; Stat. of Wis. 257, §§ 1 and 38; Grould’s Plead., ch. 5, §§ 3, 12; ch. 9, § 12, and cases there cited.

      John Gatlin, for defendant,
    insisted that there was but one point in the case that required the consideration of the court, and that was the question of privilege under the third error assigned % The other points in the assignment of errors are not well taken, and are not sustained by the record. The statute of amendments clearly gives the court the power to amend the plea and affidavit (Wis. Stat. 257), and the second plea ought not to be treated as a nullity, because it was only an amendment of the first plea.
    The privilege of members of the legislative assembly must be construed to exempt them from the service of a summons, as well as from an arrest under a capias. The technical construction of the word ‘ ‘arrest,” which has been contended for, does not apply to the word as used in the statute, giving the privilege. The meaning of the statute was not only to exempt members of the legislature from actual arrest under a capias, but to exempt them during their privilege from suit, or the service of any civil process that would in any way interfere with the discharge of their public duties. Gey el s Lessee v. Irvin, 4 Dallas, 107; King v. Qoit, 4 Day’s Cases, 129; 2 Yeates, 222; 1 Dallas, 325; 9 Johns. 216, and the case of Doty v. Strong, ante.

   Miller, J.

The defendant was a member of the legislative council of the Territory, from Grant county, and was in Madison attending the same as such member. The council adjourned on the 19th day of February, 1841, and on the next day a summons was served on said defendant at Madison, in said county of Dane, before he left for his home. Said writ was returnable to the next term of the district court for said county, to be holden on the second Monday of May in said year. At the return of the writ, the defendant filed a plea, claiming to be discharged from said suit, on the ground of his privilege as such member, to which the plaintiff filed a demurrer, which was agreed by the parties to be considered a special demurrer, .which the court entertained, and believing the plea filed to be informal, the court made this entry: ‘£ that the demurrer be sustained and the defendant have leave to plead over.” The defendant then filed another plea, averring his said privilege, which the plaintiff moved the court to strike off as a nullity; and the court overruling said motion, the plaintiff filed a general demurrer to said plea, and issue being joined on the same, the court sustained the said plea, and dismissed the defendant from the suit. The questions raised upon the record for disposition by this court are:

1. Did the court err in permitting the second plea to be filed, or in not sustaining the motion to strike it off as a nullity ?

2. Did the court err in sustaining the defendant’s plea of privilege ?

If the defendant had pursued the usual practice of the present day, in filing a motion to be discharged from the suit, with his reasons therefor, under oath, the difficulties of the first point would not have occurred, and counsel would have saved themselves and the court some trouble. But we do not see that there was error in the court allowing the second plea to be filed for the furtherance of justice, when the first one was voidable for informality. The second one was the only one on which an issue could be joined, or the rights of the parties could be tried. Nor was there any delay or injury to either party by the proceeding. There was no formal judgment against the defendant on the first plea. The court will not reverse the judgment on this point.

The second point is the important question in the cause.

Privilege is an exemption from some burden or attendance, with which certain persons are indulged, from a supposition of law, that the stations they fill, or the offices they are engaged in, are such as require all their time and care, and that, therefore, without this indulgence, it would, be impracticable to execute such offices to that advantage which the public good requires. 5 Bacon’s Abr., title “ Privilege.” Privileges are said to be very ancient, and are, doubtless, of common-law origin. The privilege from arrest of an attorney, a witness, or a suitor in court, is a privilege of the court for the due administration of justice,' and is to be determined by the court. The privilege from arrest of members of legislative bodies during the session, and for a reasonable time to go to and return from the same, is a privilege of the people, as well as of the representative, and of the body of which he is a member, and is properly to be judged and determined by the house to which the member belongs, unless in cases of suits in courts against members, when it becomes a proper and necessary subject for the consideration of the courts.

In 5 Bacon’s Abr. 618, title Privilege, it is stated that this privilege extends to arrests on judicial as well as on mesne process, and to the service of a summons as well as to an arrest. The rule is laid down as general in Tidd’s Prac. 257, that where the defendant is clearly entitled to privilege, as the arrest is irregular and unlawful, the court will discharge him upon motion, and not put him to the necessity of suing out a writ of privilege or of filing common bail. 1 Dunlap’s Prac. 92, says: that this immunity, privilege from arrest, whether it be perpetual, temporary, or local, generally amounts during its continuance to a total privilege from suit. Such has been the English practice on this subject, and these were the books of reference in our courts at the time of the formation of this government, and are worthy of respect at this day.

Members of the British parliament were exempted from arrest and the service of any process out of the courts of law during the session, and for such a time thereafter, that it amounted to a total exemption from suit. The statutes of 12 and 13 Wm. III and 6 Geo. III allowed them to be sued by summons, or distress infinite, to compel a common appearance; but, even then, they were entitled to a reasonable time, redeundo. The case of Holiday v. Pitt, 2 Strange, 990, determined the privilege of members of parliament, after the passage of the first-mentioned act. He was arrested before his time of privilege had expired, after an adjournment. The judges discharged him entirely, although, at first, they thought he should only be discharged on common bail. Prom tbis it appears that members of the British parliament were, by common law, privileged from suit during the session, and for a time afterward.

The constitution of the United States exempts members of congress from arrest upon civil process during the session of congress, and for a reasonable time in going to and returning from the same. This constitution was adopted in September, 1787, with a full knowledge of the legal understanding of the privilege from arrest. There has not yet occurred one instance where congress has put its own construction on this matter of privilege ; hut, from the American authorities hereafter referred to, there is little doubt but it includes an exemption from the service of a summons. In Story’s Commentaries on the Constitution, § 859 et seq., it is stated that this privilege from arrest “is conceded bylaw to the humblest suitor and witness in a court of justice, and it would be strange indeed if it were denied to the highest functionaries of the State, in the discharge of their public duties. It belongs to congress in common with all other legislative bodies which exist, or have existed, in America since its first settlement, under every variety of government, and it has immemorially constituted a privilege of both houses of the British parliament. It seems absolutely indispensable for the just exercise of the legislative power, in every nation purporting to possess a free constitution of government, and it cannot be surrendered without endangering the public liberties as well as the private independence of the members. This privilege from arrest privileges them, of course, against all process the disobedience to which is punishable by attachment of the person, such as a subpoena ad respondendum, ad testificandum, or a summons to serve on a jury, and with reason, because a member has superior duties to perform in another place. When a representative is withdrawn from his seat by a summons, the people whom he represents lose their voice in debate and vote, as they do in his voluntary absence. When a senator is withdrawn by summons, his State loses half its voice in debate and vote, as it does in his voluntary absence. The enormous disparity of the evil admits of no comparison. The privilege, indeed, is deemed not merely the privilege of the member, or his constituents, but the privilege of the house, also; and every man must, at his peril, take notice who are the members of the house returned of record.”

Judge Stoby refers to Jefferson’ s Manual, and to the case of Bolton v. Martin, 1 Dall. 296. Prom this book, it appears that Martin was sued by summons, while attending, as a member from Bedford county, a convention held at Philadelphia, in 1788, for the purpose of accepting the federal constitution; and that he was discharged from the suit, although the summons was not returnable for some time afterward, and probably subsequent to the adjournment of the convention, on the ground that the importance and dignity of his office entitled him to the common-law privilege from arrest or suit. This suit would have required him to neglect his public duties, while he was employing counsel, probably as much as to give bail on an arrest, and, if founded on a just claim, would have entitled the plaintiff to an execution, not only against his goods but his body. In 1790, the supreme court of Pennsylvania, in the case of Gey els Lessee v. Irvin, 4 Dall. 107, decided that a member of the general assembly is undoubtedly privileged from arrest, summons, citation, or other civil process, during his attendance on the public business confided to him; and, upon principle, his suits could not be forced to a trial and decision while the session of the legislature continued. The constitution of that State contains a similar clause to that in the constitution of the United States, on which Judge Story commented as above.

The members of the legislative assembly of this Territory being elected by the people, and empowered by the organic law, to legislate on all rightful subjects of legislation, while assembled for the purpose of legislation, and for a reasonable time to go to, and return home from, the seat of government, ought to be considered in reason, and, from the nature and dignity of their office, as invested with equal immunities with the members of any other representative body. As Judge Story says, this privilege belonged to every legislative body that existed in America since its settlement; it belonged to the assemblies of the colonies before the revolution; then why not belong to' the legislative assembly of Wisconsin \ It is the legislative branch of the government of this Territory, and its members are legally and inherently possessed of all such privileges as are necessary to enable them, with freedom and safety, to execute the trust reposed in them by the people who elected them. This is a parliamentary trust which entitles them to this immunity, that they may not be diverted from the public business by law suits brought against them during the session, which, though not attended with the arrest of their persons, might oblige them to attend to these law suits, and to bring witnesses from a distant county to a place whither they came, perhaps, solely, on account of that public business.

There is a statute in the State of New York, that every member of the legislature shall be privileged from arrest on civil process during his attendance at the session of the house to which he shall belong, except on process issued on any suit brought against him for any forfeiture, misdemeanor, breach of trust, etc., and for fourteen days previous to any such session, and, also, while going to and returning from such session, provided the time of such going to or returning does not exceed the fourteen days. There are no reported cases in New York giving a construction to this statute, or defining this privilege by the courts ; but the legislature, in the enactment of the statute of limitations, gives us to understand that they construed 'the privilege from arrest to extend to a privilege from suit. In that statute it is provided, that whenever the commencement of any suit shall be prevented, by reason of any privilege of any member of either house of the legislature of this State, or of any member of either house of the congress of the United States, the time during which the same have been prevented shall not be deemed any portion of the time limited for the commencement of any suit, etc.

All the statute law we have on the subject of this privilege is an act of the Territorial legislature, on page 157 of the Statutes of Wisconsin. It is there provided that “no member of the legislative assembly shall be liable to arrest on a service of any civil process issued by any of the courts of this Territory during any such session of the legislative assembly, or for ten days previous to the commencement or subsequent to the termination of any session; and any member in arrest during the period of such exemption shall be entitled to an immediate discharge on any application to any judge, supreme court commissioner or justice, in any county in -which such an arrest may have been made.” The first clause of this statute is the same in substance as the articles in the constitutions above referred to, and to the statute of the State of New York, and must be construed in the same manner. Whether the privilege is of the common law or created by this statute is immaterial, as we have seen satisfactorily that it extends to an exemption from suit. If of the common law, -there is nothing in this statute that restricts its legal meaning and operation. There is no doubt but that the legislature may, in its discretion, abridge or take away a privilege of its own members, and whenever the legislative will is to be ascertained with perfect certainty, either from the express words or manifest intent of the statute, the court will so consider it. It is a principle of the common law that privileges are not to be taken away by the general comprehensive words of a statute. In re Bliss, 9 Johns. 347. There is no expression in this statute having a greater tendency to confine the privilege of the members to arrest merely, than is contained in the constitution and statute of New York referred to, consequently we cannot do by construction what is not clearly authorized by the legislature. The second clause in the statute merely provides for the immediate discharge of a member actually in arrest. This suit having been brought against the defendant the next day after the adjournment of the assembly, and within the ten days allowed for returning home, the district court was right in sustaining his plea of privilege. It is therefore ordered and adjudged that the judgment of the district court of Dane county be and the same is hereby affirmed with costs.


source: Caselaw Access Project

author: Irvin, J.

license: Public Domain

text:
    Mau-zau-mau-ne-kah vs. The United States.
    1. Indictment—certainty as to time.—An indictment must state a day certain when the offense was committed, and it is not sufficient to charge that it was committed “ on or about ” a certain day.
    2. Name or court. — There are no circuit courts in the Territory, and a prosecution instituted in a district court should not be styled as being had in the cvrcuit court.
    3. Designation oe grand juey.—An indictment must show that the jurors of the grand jury were impaneled for the proper county and not merely “ for the Territory.”
    A Arrest- oe judgment.—-Any matter that would be good on a general demurrer to an indictment is equally available in arrest of judgment.
    EEEOE to the District Court for Brown County.
    The plaintiff in error, an Indian of the Winnebago tribe, was indicted, tried and convicted in the district court for Brown county, at the May term, 1837, of the murder of Pierre Paquette.  In the caption of the indictment it is stated that it was found in “the district court sitting as a circuit court of the Territory of Wisconsin, begun and holden at Depere within and for the county of Brown,” and states “ that the jurors for said Territory (and in behalf of the United States, upon their oath), present, that Mau-zau-mau-ne-Tcah, of the tribe of Winnebago Indians, on the eastern bank of the Wisconsin river, in the vicinity of Port Winnebago (being on lands owned by the tribe of the Menomonee nation of Indians, and under the sole and exclusive jurisdiction of the United States aforesaid), in the Territory aforesaid, Indian, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on or about the eighteenth day of October, in the year of our Lord one thousand eight hundred and thirty-six, with force and arms, at and on the eastern bank of the Wisconsin river, in the vicinity of Fort Winnebago and Territory aforesaid, in and upon the body of one Pierre Paquette, in the peace of the said United States then and there being, feloniously, willfully and of his malice aforethought, did make an assault; and that the said Mauzau-mau-ne-Tcah, with a certain rifle of the value of four dollars, then and there charged with gunpowder and one leaden bullet, which said rifle he, the said Mau-zau-maune-Tcah, in b oth his hands then and there had and held, then and there feloniously, willfully and of his malice aforethought, did discharge, and shoot off to, against and upon the said Pierre Paquette; and that the said Mauzau-mau-ne-Tcah, with the leaden bullet aforesaid, out of the rifle aforesaid, then and there, by force of his gunpowder aforesaid, by the said Mau-zau-mau-ne-Tcah discharged and shot off as aforesaid, then and there feloniously, willfully and of his malice aforethought did strike, penetrate and wound the said Pierre Paquette, in and upon the right side of the breast of him, the said Pierre Paquette, giving to him, the said Pierre Paquette, then and there with the leaden bullet aforesaid, so as aforesaid discharged and shot out of his rifle aforesaid by the said Mau-zau-mau-ne-Tcah, in and upon the right side of the breast of him, the said Pierre Paquette, one mortal wound of the depth of five inches and of the breadth of half an inch, of which he, the said Pierre Paquette, then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Mau-zau-mau-ne-Tcah, him, the said Pierre Paquette, in the manner and by the means aforesaid, feloniously, willfully and of his malice aforethought did kill and murder, against the peace and dignity of the said United States, and contrary to the statute in such case made and provided.”
    The prisoner pleaded not guilty, and, after a verdict of guilty was rendered against him, he moved in arrest of judgment for reasons stated in the opinion of the court. The district court overruled the motion as to all the points made, except the first, and, after argument and further consideration, overruled that also, the district judge, Hon. William C. Pbazbb, delivering the following opinion thereon: “The court, after hearing an argument in support of the first reason assigned by the prisoner’s counsel, in arrest of judgment upon the verdict against him, have, after the most mature consideration, overruled the same.
    The time, under the English law, of giving the mortal wound or stroke is considered necessary to show when the forfeiture of goods and lands attaches ; and, also, in case a person should, after a wound or stroke, survive more than a year and a day, so as to have a definite period to count from, in order to acquit or convict, as the case might turn out upon the evidence. If the person died within the year and the day, the indictment would stand ; and, upon the other hand, it would fall to the ground. Now, by the British decisions, proof of the time of the stroke or wound being given, either before or after the time laid in the indictment, and before indictment found, is held sufficient to authorize a conviction ; and, also, by the same decisions, forfeiture attaches, not from the day laid in the indictment, but from the time of the actual commission of an offense, which might lead to immediate or consequent death, although a different day from that laid in the indictment. And, also, by the same decisions, the year and a day within which a person must die, from a stroke or wound given, to authorize the presumption of death from such cause, must run, not from the time laid in the indictment, but from the actual time of the commission of the offense; so that if an offense were laid to have been committed upon the 18th day of October, 1836, and it should turn out upon trial that the offense was committed upon the 1st day of October, 1836, and the person died upon the 3d of October, 1837, the whole proceeding would fall, the court computing the time, not from that laid in the indictment, but from that actually established by the evidence.
    Thus, it seems that what at first were the reasons for the rule have been departed from by the English judges themselves—Qessante ratione, cessat ipsa lex.

      We have no occasion for a strict adherence to the rule in the United States, as we have no felonious forfeitures; and the rule of the year and a day, as to the reckoning of, time, is the same with us as in England. That which was once with the English judges, in favor era vitoe, matter of substance, has become matter of form, inasmuch as nothing is allowed to appear on the trial but the real truth of the transaction, although it may vary from the time of the commission of the offense laid in the indictment.
    Enough appears upon the face of this indictment to show when the offense was committed, and the testimony corresponds therewith-—the allegata and probata, satisfied the jury, and that is enough for this court.
    Non-essential technicalities ought, when trifling in themselves, never to defeat the great ends and purposes of criminal justice. Our code is a humane one, and the prisoner has had a most fair and impartial trial, by a most intelligent jury, who, in the absence of the prisoner’s counsel, upon the rendition of their verdict, were ordered by the court to be polled, and they sanctioned the same by their several and solemn assents.
    If our constitutional provision as to a man being twice put in jeopardy were out of the question, and this motion to prevail, and judgment be entered for the defendant, and he be discharged, could he ever be convicted for this offense again; I say no. Upon the plea of autrefois acquit, enough would appear from the time as laid in the indictment, descriptive of the wound, et cetera, to bar and save Mm. from ■ such, second prosecution, or any other, in all time ,to come. The English judges regret these now technical absurdities. Where time, the exact time as land, is necessary to be .proven, in. order to convict, I say adhere to it, and depart not from it. It is then matter of substance, to be proved as laid. Not so in this case, and others like it, when it is mere form, no longer necessary to be proven as laid, for the reasons before mentioned.
    This record shall be sent to the President of the United States, himself a profound and great jurist; and who also has, as his legal adviser, one of the brightest ornaments of the American bar, who will inspect all that has been done, and if this court has erred, it will be happy, yea, truly happy, to have it announced by a pardon granted to the prisoner.”
    The prisoner was sentenced to be executed on the first day of .September, 1837, and the case came before this court by writ of error. .-

      J. S. Horner, for plaintiff in error.
    ’ Moses M. Strong, United States attorney, for defendant in error.

       Pierre Paquette was well known at an early day in Wisconsin as the interpreter of the Winnebago tribe of Indians, and acted for them as such in making treaties.

   Irvin, J.

At the May term, 1837, of the district court for Brown county, Mau-zau-mau-ne-hah (an Indian of the Winnebago, tribe) was indicted for .the murder of Pierre Paquette, and, at [the same term was tried and convicted and judgm.ent'.pronounced ; .to stay and reverse which a writ of errqr was, sued, out,.and the cause brought up to this court.;,

After verdict and before judgment, the prisoner made a motion in arrest of judgment upon the following grounds :

1. Because the time laid- in said indictment when said offense was committed is not laid, with sufficient and legal certainty.

2. Because said indictment alleges said offense charged in said indictment to have been committed on lands owned by the tribe of the Menomonee nation of Indians, and under the sole and exclusive jurisdiction of the United States.

3. Because said indictment alleges “the jurors” to be “for said Territory,” and does not allege them to be jurors of either Brown county, or of the counties composing the third judicial district.

4. Because said indictment does not truly state the name and style of this court.

5. The said indictment does not allege said offense to have been committed against a statute or act of congress; which were all overruled by the court.

In the order of the indictment it is best to notice the fourth objection first. By the organic law the proper style of the court would be the district court, while in the indictment it is styled “a circuit court of the said Territory of Wisconsin.” Now, as there is no such court as a circuit court of the .Territory of Wisconsin, it occurs to this court that the objection is a good one, as it is a principle of law that such a degree of certainty should be observed as to leave no difficulty in the way of the accused in the event of an acquittal and subsequent prosecution, in showing a former acquittal.

By the third objection it is further urged against the indictment that it “ alleges the jurors to be for said Territory;” and this objection is not without its weight, as the jurors must be of the county, and not from any or all parts of the Territory.

The first objection, “because the time laid in said indictment when said offense was committed is not laid with sufficient and legal certainty,” is well taken. The indictment charges the offense to have been committed ‘‘ on or about the 18th day of October.” etc., while it is held that the time and place must be added to every material fact in the indictment (Rex v. Holland, 5 Term R. 607; Rex v. Aylett, 1 id. 69; Stand. 95 a; Rex v. Haynes, 4 M. & S. 24); that is, every material fact stated in an indictment must be alleged to have been done on a particular day and at a particular place.

“A day certain must be stated.” 2 Hawk. 25, § 77-. “Any want of sufficient certainty in the indictment respecting the time, place or offense, which is material to support the charge, as the circumstance of no offense being charged will cause the judgment to be arrested.” 1 Chit. Or. Law, 539. “Any objection which would have been fatal on demurrer will be equally so on arrest of judgment, and it is therefore usually reserved till this time in order to obtain the chance of an acquittal.” 1 id. 540.

The court is of opinion that the district court erred in overruling these objections, but did not err in overruling the second and fifth objections. The decision of 'the district court is therefore reversed and the judgment arrested, and the cause remanded to the said district court, that it may .take such other and further steps therein as the law may require.


author: Milleb, J.

text:
    Catlin and another vs. Jones.
    1. Discontinuance.— A plaintiff may discontinue his suit as to some of several defendants after the jury is impanneled, and proceed to trial against the others.
    2. Filling blank indorsement.— Where the payee of a negotiable promissory note indorses it in blank before it falls due, the indorsee takes the note subject to all the rules of the law merchant, and he has not the right to fill up the blank with an obligation that would bind the indorser beyond that law, after he has failed to demand payment and give notice to the indorser.
    3. Liability of indorser.— The indorser is only liable to the indorsee upon presentation of the note at maturity, non-payment by the maker and notice to the indorser.
    4. Pleading and proof.— To charge the indorser, the plaintiff must aver in his declaration that the note was presented at maturity, and payment demanded and refused, of which the indorser had notice, and these facts must be proven on the trial.
    ERROR to the District Court for Iowa County.

      Jones brought an action of assumpsit in the Iowa county district court, against John Catlin, John Milton, J. Chamberlin, Robert Bloomer, Edward Bloomer and Thomas Park, upon a negotiable promissory note, made by Catlin, and payable, to Milton, indorsed by Milton before due to Chamberlain and the Bloomers, as J. Chamberlin and Co., by them to Park, and by Park to the plaintiff. The declaration contained two counts ; in one of which presentation, non-payment and notice were averred; and the money counts. The defendants, except Park, who was not served with process, demurred generally, and their demurrer was overruled. They then pleaded the general issue. After the jury was impanneled, the plaintiff, by leave of the court, discontinued his suit as to all the defendants, except Gatlin and Milton, and proceeded in the trial against them, to which they excepted. It appeared upon the trial that the indorsement of Milton was originally made in blank, and had been filled up by the plaintiff ’s attorney after the commencement of the suit, as follows: “I promise to pay, jointly with the maker, the within note to David W. Jones.” There was no evidence upon the trial to prove presentation and non-payment of the note, or notice to Milton, the indorser. The jury, under the instructions of the court, returned a verdict against the defendants for $339.50. The defendants moved for a new trial and in arrest of judgment, both of which motions were overruled, and judgment rendered upon the verdict. The defendants excepted to these decisions of the court in the progress of the cause, and prosecuted a writ of error to reverse the judgment.

      Morgan L. Martin and Moses M. Strong for plaintiffs in error.

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

This is a writ of error sued out by John Milton and John Catlin to reverse a judgment in the district court of Iowa county, on a negotiable promissory note, made by said Catlin to said Milton, and by him indorsed in blank before due. These defendants were sued with other persons who had also indorsed said note, and at the trial the plaintiff asked and obtained leave to discontinue as to them; which was allowed by the court. This is the first error assigned. Whether a joint action against all the defendants was legal or not, is not now to be determined, as that point was not raised. The plaintiff, by Ms suit, considered it a j oint contract. Under the 68th section of the act concerning proceedings in courts of record, page 207, Territorial Statutes, the plaintiff may be allowed to discontinue as to part of the defendants, amend his declaration, and proceed to judgment against the rest on the conditions therein set forth.

The note was indorsed in blank by John Milton before due, and so it was averred in the declaration. After suit brought, the attorney of the plaintiff filled up the blank indorsement of said Milton with these words : “Ipromise to pay, jointly with the malcer, the within note to David W. Jones.” This is assigned for error.

The liability created by the indorsement is founded in the law merchant, and must be governed by its principles. The undertaking of the indorser is only to pay in case the maker does not pay. The indorsee is therefore bound to apply to the maker of the note, and he takes it upon this condition. Hence it is, that in an action by an indorsee against an indorser of a note, the declaration must aver, that the note on becoming due, was duly presented to the maker and that he refused to pay, of which the defendant had notice. This is an essential part of the plaintiff’s case, and he is bound to aver and prove it. 13 Mass. 131; 9 Johns. 121; 8 Serg. & Rawle, 351; 4 Cranch, 141; 9 Wheat. 584; Chitty on Bills, 809; 3 Wash. C. C. 206; 5 Binney, 502; 1 Serg. & Rawle, 334; 9 id. 201; 16 id. 157; 4 Wash. C. C. 1. And the plaintiff or his attorney could not bind Milton beyond this, by making this addition over his indorsement; particularly after suit brought and the usual declaration filed, setting out a blank indorsement, demand and notice, and as at tke trial no notice was proved: Chitty on Bills, 798; 17 Johns. 325; 2 Saund. 739.

It is therefore ordered and adjudged that the judgment be reversed with costs.

Dunn, Ch. J., dissented.


author: Miller, J.

text:
    Morrison vs. Fake.
    1. Attachment. — Tke statute autkoriziug tke issuing of a writ of attackmentmust ke strictly pursued in using that process; no presumption will supply tke defect wken it is departed from.

      2. Same.—Tke officer before wkom an affidavit is taken, for tke purpose of suing.out a writ of attackment, must certify kis satisfaction of tks trutk of tke facts stated, in all cases, except for tke first cause specified in tke statute for issuing suck writ.
    3. Aeeidavtt.—In stating tke cause for an attackment under tke sixtk subdivision of tke statute, it is proper to use tke word “remove,” “convey” or “dispose,” in tke disjunctive, and also tke word “property ” or “ effects; ” but two or more of tke six cases for an attackment specified in tke statute must not be stated in tke disjunctive form. *
    ERROR to the District Court for Dane County.

      Morrison commenced an action, by attachment, against Fake, in the Dane county district court. Upon the return of the writ, Fake, by his attorney, moved the court to quash the writ and dismiss the proceedings, upon the ground of the insufficiency of the affidavit upon which the writ was issued. The district court sustained the motion, and gave judgment for the defendant; to reverse which the plaintiff prosecuted a writ of error.
    The case is stated in the opinion of the court.

      David Brigham, for plaintiff in error.

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

The plaintiff in error, James Morrison, sued out of the district court of Dane county a writ of attachment, which was founded on the following affidavit and proceedings:

James Morrison, being duly sworn, doth depose and say, that Henry Fake is justly indebted to him in the sum of $112, lawful money, over and above all legal offsets or discounts, and that he has good reason to believe, and does believe, that the said Fake is about fraudulently to remove, convey or dispose of, his property so as to hinder or delay his creditor.”

Sworn and subscribed to before Wm. N. Seymour, a supreme court commissioner, on the 8th day of February, 1840.

On said affidavit is this indorsement:

“The clerk of Dane county will please issue a writ of attachment in the above-entitled cause, and indorse thereon, David Brigham, plaintiff’s attorney: Dated February 8, 1840,” and signed by said William N. Seymour.

The defendant appeared in court and moved to have the writ quashed and proceedings dismissed, for these reasons:

1. The affidavit does not prove, nor is there any evidence, that the officer before whom it was sworn to was satisfied of the truth of the allegations contained therein.

2. There is no certificate of the officer, before whom the affidavit was taken, that he was satisfied that the allegations in the affidavit were true.

3. The affidavit is informal and insufficient.

The district court quashed the writ and proceedings, and, to reverse said judgment, this writ of error was sued out.

The causes of attachment prescribed by the act concerning the writ of attachment, page 165 of the Territorial statutes, are,

First. That the- debtor has absconded, to which the party applying for the writ shall make oath, in writing, before any proper officer, as he verily believes. This oath alone entitles the party to the writ.

Second. That said debtor is about to abscond, to the injury of his creditors.

Third. That such debtor is not a. resident of this Territory.

Fourth. That such debtor so conceals himself as to avoid the service of process.

Fifth. That such debtor is about to remove his property or effects out of the Territory.

Sixth. That such debtor is about fraudulently to remove, convey or dispose of, his property or effects, so as to hinder or delay his creditor.

In the five last cases, the party must satisfy the officer of the truth of the fact alleged. Why the legislature made the distinction in the cases, no good reason appears ; but the distinction is made, and it must be observed. In the first case, the party, his agent or attorney, must file his affidavit in writing, that his debtor has absconded, as he verily believes, and this entitles him to the writ. What evidence is necessary to satisfy the officer, and in what form it must be made, is not set forth in the statute, other than the party must file the same with the clerk of the district court, when he shall issue the writ.

An affidavit of the party, his agent or attorney, or some disinterested person, containing one of the above causes, is certainly necessary; and the officer must indorse thereon his satisfaction of the truth of the facts alleged. The satisfaction of the officer must affirmatively appear on the record, before the writ can be properly issued by the clerk, and cannot be inferred or presumed from circumstances. In the case of Mayhew v. Mayhew, ante, decided'at the last term of this court, it appeared that the affidavit was made before the clerk, who filed the same and issued the writ; from which as strong a presumption of his satisfaction arose as can in this case, from the order of Seymour to the clerk; but the court there unanimously decided, “ that the satisfaction of the officer is an indispensable prerequisite, and that can regularly appear in no other way than by his own indorsement, of the fact.” In all cases of this kind, courts uniformly confine plaintiffs to strict practice, and require them strictly to comply with the requisites of the statute. There is nothing to be left to inference; all the facts made necessary and requisite by the legislature must appear affirmatively. Nothing more is required by this rule than appears to be the universal practice of courts upon similar proceedings. In some of the cases, fraud is alleged against a party who has no way of traversing it; which renders it necessary that a creditor, who is anxious to secure his debt, should satisfy the officer of the fact, and that the officer should so certify. It is an ex parte proceeding that ought to be carefully guarded, or a door is opened to oppression and perjury. A responsibility is properly thrown on the officer, as well as the party, which is not to be evaded.

Although no error in the affidavit is specified in the exception, yet we have examined it and find that it sets forth, literally, one of the cases of attachment contained in the statute. We find it to be practiced in the Territory, to set out this cause in the disjunctive as set out here, and we are not disposed to change it. We are not disposed to confine the party to the use of one of the words, 1 ‘ remove, ” “ convey ” or “ dispose, ’ ’ but he may use one, or all, at his pleasure; also the words “property,” or “effects.” In a case of fraud, it may be difficult to obtain satisfactory information, whether a man is removing or disposing of his property. Clearly, a party cannot set out two of the causes for attachment in the disjunctive. Both these points seem to be settled in 3 Watts, 144.

It is therefore ordered and adjudged that the judgment of the district court of Dane county be affirmed with costs.

       See Klenke v. Schwalen, 19 Wis. 111; Lathrop v. Snyder, 16 id. 293.