text:
    Drum vs. Holton.
    1. False return—pleading. A declaration against a sheriff for a false return, must aver with certainty and particularity wherein the falsity consists, and a declaration which avers that the defendant “ falsely and deceitfully returned that, etc.,” without stating in what respect the return was false,* is too vague and general, and is had on demurrer.
    2. Forcible entry, etc.—writ on restitution. A writ of restitution in proceedings for forcible entry and detainer, will not authorize the sheriff to dispossess one who was not privy to the defendant’s forcible entry and detainer, and who is a stranger to the parties and the record. It only authorizes him to dispossess the defendant and his privies, and it cannot have the force and effect of a writ of possession, in an action of ejectment.
    ERROR to the District Court for Milwaukee County.

      Drum sued Holton, in an action on the case for a false return charged to have been made by him as sheriff of Milwaukee county. The case is fully stated in the opinion of the court.

      Peter Yates, for plaintiff in error:
    Where a demurrer is to the whole declaration, and any one count is good, the demurrer must be overruled. The first and second counts are good; whether the sheriff’s return that he had given Drum peaceable restitution was false, was a matter of proof and not of pleading. It was sufficient to allege in general terms that it was false. 2 Chitty’s Plead. 748 ; 5 Wend. 309 ; 9 Cow. 22; 1 Chitty’s Plead. 212-214, and 223. It was the duty of the sheriff under the writ to give Drum peaceable possession, without which he could not give restitution. The writ was like the writ of habere facias possessionem. If it was otherwise, it would always be, in the power of the defendant to substitute a stranger in possession and defeat the ends of the law. The third count is not liable to the objections taken to the first and second, and the allegations as to third persons in that count may be rejected as surplusage.

      Lem Hubbell, for defendant in error.
    1. The matter alleged in the first count is immaterial. The writ did not command the sheriff to give the plaintiff peaceable possession, but peaceable restitution. Restitution is the act of returning or restoring to a person some thing or right of which he has been unjustly deprived. When Butler was removed, then Drum) s thing or right of which he had been unjustly deprived by the forcible entry and detainer was returned, restored or restituted to him.
    2. The two first counts are bad for want of certainty. Whatever is necessary to be proved must be stated. Gould’s Plead. 172, § 7. Some circumstances or fact showing how or wherein the return was false and deceitful should have been alleged. 1 Tidd’s Prac. 457; Góuld’s Plead. 174, § 11. Pacts only are to be stated, not inferences of law. 1 Saund. Plead. 415, 417 ; 4 East, 422 ; 5 Term R. 623 ; 1 Chitty’s Plead. 214.
    3. That part of the third count which states that the defendant did not nor would cause the plaintiff to have peaceable restitution of the premises, etc., is bad for generality and want of certainty. A declaration in slander might as well charge the defendant with having slandered the plaintiff without giving the words. Gould’s Plead. 172, § 7 ; 183, § 29 ; 174, § 11.
    4. That part of the third count relating to the possession of J. Butler and Pentheny is bad for immateriality.- The possession of these parties was not the subject of complaint in the original snit, and when the rights of which the plaintiff had been unjustly deprived by the forcible entry and detainer of Cornelius Butler were restored to him, the writ was executed and he had peaceable restitution. The writ could not go further than the original complaint and the judgment founded on it, and if the plaintiff wished to reach other persons by the writ, he should have included them in the suit.
    5. A writ of restitution in forcible entry and detainer is very different from a writ of possession in ejectment. The proceeding in forcible entry and detainer is against the wrong-doer; in ejectment the proceeding is against the land. In the one case a right is restored; in the other, the land itself.
   Dunn, C. J.

Error is prosecuted in this case to reverse the decision of the district court of Milwaukee county, sustaining the demurrer of defendant to plaintiff’s declaration, and entering judgment in favor of defendant.

The plaintiff in this action declared in case against the defendant Holton, setting out his cause of action in three counts: The first reciting substantially a certain proceeding in an action of forcible entry and detainer, theretofore had in favor of plaintiff against one Cornelius Butler, before Clinton Walworth, Esq., a justice of the peace, wherein the plaintiff recovered judgment of restitution of the N. W. i of section fifteen, in Town 8, in Range 21, in the county of Milwaukee, against said Butler, on which judgment a writ of restitution issued ill favor of plaintiff against Butler, directed to the sheriff or any constable of said county, commanding, among other things, “that, taking with him the force of the county if necessary, he cause the said Butler to be immediately removed from the aforesaid premises, and the said Hugh Drum to have peaceable restitution of the same, and thereof with the said writ make due return within thirty days that said writ was delivered to the defendant, who then was and continued until the return day of said writ sheriff of said county; and that he, the defendant, so being sheriff, afterward, on the return day of said writ, falsely and deceitfully returned upon the writ to the court of the said justice, “that he had removed the said Cornelius Butler from the premises mentioned, and had given the said Hugh Drum possession of the same,” whereby the said plaintiff is injured, etc. The second count recites the same proceedings, and avers “that said defendant, as such sheriff, falsely and deceitfully returned on the said writ that he, as such sheriff, had removed the said Butler from the premises mentioned in said writ, and had given the said Hugh Brum peaceable restitution of the same,” whereby said plaintiff hath been injured, etc. The third count contains a recitation of the same proceedings, and delivery of the writ to defendant, as sheriff, and avers “that Thomas Pentheny, Patrick Pentheny and John Butler, at the time of the delivery of the writ to the defendant, as sheriff, and from thence until the return “day of the writ, were upon the said premises, occupying houses thereon situate and being, and holding the same and the possession of the said premises without the consent and against the will of plaintiff;. and the said defendant, at any time during that period, might have removed the said Thomas, Patrick and John from the same, by virtue of said writ, if he would so have done, whereof the said defendant so being sheriff, had due notice, yet the said defendant, as such sheriff,’ intending' to injure plaintiff, did not, nor would, at any time before the said return of the said writ (although often requested so to do), remove, or cause to be removed, the said Thomas, Patrick and John, or either of them, or cause peaceable restitution of the said premises, as he was commanded, but wholly failed and made default therein; and the said Thomas, Patrick and John did not remove, nor did either of them remove from said premises, but continued to hold the same without the consent and against the will of said plaintiff, whereby he hath sustained injury,” etc.

There can be no question but that the two first counts are clearly defective, and do not entitle the plaintiff to recover upon the case presented in either count. The rule of law is imperative, that where you seek to make a sheriff liable for a false return of a writ, you must mer with certainty and particularity wherein the falsity consists, for the reasons: 1. That you are required to apprize the defendant of what he has to defend against. 2. That the jury may correctly understand the true issue between the parties. And 3. That the court may be enabled to pronounce a correct judgment upon the case presented. 1 Chitty’s Plead. 214.

The allegation offalsity in the return is too vague and general; it is not set forth with that certainty and precision which is requisite to apprize the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it, or to inform the court whose duty it is to declare the law arising upon the facts. 1 Chitty’s Plead. 255; 3 Black. Com. 395.

These principles are fully recognized in Pangburn v. Ramsey, 11 Johns. 141.

The third count is not obnoxious to the objection of want of certainty and precision in setting out the facts which show the falsity of the return as relied on by plaintiff' to entitle him to recover. The question to be examined is, do the facts relied on in the third count, as establishing the falsity of the return, admitting their truth, as the demurrer ‘ does in law, amount to a false return and entitle the plaintiff to recover in this action %

We are of opinion that they do not. In considering this question, we must look to the proceeding in forcible entry and detainer. It partakes of the nature of a criminal proceeding, for upon conviction of the defendant, the justice may impose a fine for the force used, as limited by our statute. The complaint is direct and special (not general) against the defendant or defendants named ; the issue is between the plaintiff who makes complaint and the person or persons complained of; the finding of the jury is and must be according to the issue ; and the judgment of the justice in consonance with the finding of the jury. After judgment a writ of restitution issues, following the proceedings and judgment, commanding the sheriff or other officer, that, taking with him the aid of the county, if necessary, he oust or dispossess the defendant by name (in the case at bar, Cornelius Butler) of the premises described in the complaint, and restore the plaintiff to peaceable possession thereof. We understand from the very nature of this proceeding, that as in its inception, it is based upon a complaint against a particular party named (and the plaintiff in his complaint may include as many as are guilty); as the issue is between the party complained of and the plaintiff, as the finding of the jury is upon that issue, as the judgment of the justice is upon that finding, and as the writ of restitution is upon that judgment, the sheriff is not required by law to travel out of the writ and dispossess any others than those named in the complaint, judgment and writ. Great - stress is laid on that part of the command of the writ which is in these words, following the ouster of defendant: “and cause the said plaintiff to have peaceable restitution of the same,” and it is insisted that the command of the writ is not obeyed until all who may be in possession of any part of the premises, whether privy to defendant’s forcible entry and detainer or not, or whether strangers to the record or parties thereto, are ousted. This appears to the court to assume for plaintiff, by means of his writ and the aid of the sheriff, an over-strained and unreasonable power over the rights of parties who are not complained of, and are in no wise precluded by any judgment of the law in a proceeding to which they were parties, or might by any rule of law have made themselves parties. Certainly the whole command of the writ (and we must take the whole together), only required the sheriff to oust the defendant, Cornelius Butler (and privies), who alone was complained against, and make to the plaintiff peaceable restitution of the premises, so far as he had been dispossessed by that identical defendant and those assisting him. This case cannot be assimilated in this respect to the proceeding on a writ of habere facias possessionem, in ejectment. In forcible entry and detainer, the mere possession at the time of the entry complained of is brought in question. If the plaintiff were in possession, and the defendant forcibly entered, although he may have been the owner in fee, this action will lie; it merely inquires into the plaintiff’s possession and defendant’s forcible entry; and the sole object is to oust the defendant and restore possession to the plaintiff of that of which the defendant alone has forcibly ousted him. In this action, no one but the plaintiff who complains, and the defendant or defendants complained of, can be admitted as parties, by any rule of law. In ejectment, the title is in question ; the plaintiff must recover upon the strength of his own title against the world, and not on the weakness of his adversaries’ title.

Any one having adverse title may come in and defend. The writ commands the sheriff to cause the plaintiff to have peaceable possession of the premises (to which, be it remembered, he has proven title as against every one, any one having adverse title being authorized to come in and defend), and the plaintiff may point out the premises to the sheriff and direct who are to be dispossessed; in such case, the sheriff is not a trespasser if he oust a person improperly, but the plaintiff is. And if under this writ the sheriff oust any one who is rightfully on the premises, he may be restored, according to English law and practice, in a summary way, by motion to the court, being a court of superior jurisdiction. It cannot be insisted, that any such practice, sanctioned by law, could obtain before justices of the peace in our Territory, who have jurisdiction by statute in actions of forcible entry and detainer. If the full extent of power, which a plaintiff and sheriff may exercise under the writ of possession in ejectment, is claimed for the plaintiff and sheriff under the writ of restitution in forcible entry and detainer, then the same prompt relief should be at hand for those who may be affected by an abuse of this power.

If there be no obvious reason why the law and practice under the writ of possession in ejectment should apply to proceedings on a writ of restitution in forcible entry and detainer, but very good reasons against it, the courts should refuse its application. The plaintiff in this case has his remedy, if, as he alleges in his declaration there are other persons occupying houses on the premises, and he can show that they, or either of them, forcibly entered and dispossessed him, the action of forcible entry and detainer is open, and he may bring as many actions as he thinks he can sustain by proof. Courts should not encourage any party to do by indirect means that which may be done by pursuing the plain provisions of law.

We affirm the judgment of the district court with costs.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    Hill vs. Bloomer.
    1. Replevin—judgment fob return. If a writ of replevin be abated or quashed on the plea or motion of the defendant, he cannot at common law have judgment for a return of the property unless he makes an avowry, conusance, plea or suggestion showing him entitled to it, and in the absence of any such suggestion he is entitled to a judgment for costs only.
    3. Judgment in abatement. A judgment in abatement in an action of replevin, or an order quashing the writ and dismissing the proceedings, is not a judgment of discontinuance or nonsuit within the meaning of the statute (Terr. Stat. 375, § 30), so as to entitle the defendant to a return of the property replevied and damages, or a judgment for the value thereof and damages, in case a return is waived.
    3. Assessment of damages—writ of inquiry. Damages inordinary eases may be assessed in term time in open court by a jury calledfrom the regular panel, without a writ of inquiry being issued, but under the statute in actions of replevin, a writ of inquiry must be actually issued.
    4. Challenges to jurors. It is not error, upon an assessment of damages in open court, to allow to either party three peremptory challenges to jurors.
    ERROR to the District Court for Dane County.
    Action of replevin commenced in the district court for Brown county, by Sill against Bloomer, October 12,1840, for 33Ó, 000 feet of pine lumber and.900 bushels of potatoes. At the May term, 1841, under the law attaching Portage county to Dane county for. judicial purposes, the cause was removed to the district court for Dane county. At the October term, 1841, of the Dane county district court, the defendant moved the court to quash the writ and dismiss proceedings for several reasons, which motion was sustained and interlocutory judgment rendered that the defendant recover the value of the property replevied, and damages for the taking and detention thereof, with costs (the defendant having waived a judgment that the property be returned), and that a writ of inquiry issue, etc. The property replevied, as appeared from the return of the officer, was 320,000 feet of pine lumber and 650 bushels of potatoes. The value of the property, and damages for the detention thereof, were ascertained in the manner stated in the opinion ’of the court, the total sum found for the defendant being $6,231.14. The plaintiff moved to set the finding aside, but the motion was denied, and judgment was rendered in favor of the defendant and against the plaintiff for the amount of the verdict and costs.

      John Gatlin and J. E. Arnold, for plaintiff in error.
    1. The court erred in rendering judgment for the defendant for the value of his property and damages and the awarding a writ of inquiry, because there had been no judgment of nonsuit or discontinuance within the meaning of the statute. Stat. Wis. 275, § 30. At common law, no judgment for a return, etc., could be rendered except upon some claim of property, and the defendant succeeding on the plea of non cepit could not have a judgment of return, etc. 12 Wend. 30, 286; 4 id. 217; 3 Mass. 199 ; 2 Wheat. Sel. 367. And if after declaration there be judgment of nonsuit, there can be' no return, unless there is a claim of property in defendant. Gilb. on Replevin, 169. As to whether the judgment was one of discontinuance or nonsuit, they cited Graham’s Pr. 901. 2. No writ of inquiry was» served upon the jury finding the inquest, but they were called from the regular panel attending the term. Graham’s Pr. 795; 1 Wheat. 216; 1 Dali. 353; 3 Johns. 154; 2 id. 70; 13 Wend. 658. Under the statute, a writ should have been issued. Stat. Wis., Replevin Act, §§ 25, 30, 32 and 36. 3. The court ought not to have allowed the defendant three peremptory challenges of jurors called. Graham’s Pr. 795 ; 2 Johns. 70 ; 3 Salk. 81; 15 Johns. 178.
    id J. Dunn and Edmard V. WMton, for defendant in error.
    1. The plaintiff, in order to recover his property, instituted the action and could only recover by conformity to the law. This he did not do, and he has not shown himself entitled to judgment. While the defendant did not, in a technical sense, put in a plea of property in himself, still the motion which he filed was as a plea for that purpose, and by the law he was entitled to judgment for a return of the property, and under the thirty-first section Wisconsin Statutes, 275, the judgment in this respect is correct. 12 Wend. 132; 18 id. 918 ; Bull. N. P. 57 ; Gilbert on Eeplev. 169,170. 2. There was a writ of inquiry originally issued, but it was unnecessary. Under our law and practice, the writ can be executed only in open court. 4 Camp. 26; 13 Wend. 658 ; 3 Johns. 154 ; 1 Wheat. 215; 3 Dali. 355. 3. The defendant was entitled and properly allowed to challenge three jurors peremptorily. He had a right to an impartial jury, and neither party could be prejudiced by allowing the challenges. 3 Salk. 81; 2 Johns. 194 ; 19 id. 115; Bull. N. P. 304.
   Miller, J.

This was an action of replevin commenced by Hill against Bloomer, in the district court of Brown-county, and, in pursuance o'f an act of assembly attaching Portage county to the county of Dane for judicial purposes, it was certified to Dane county. In the district court of Dane county the defendant appeared, by his counsel, and moved the court to quash and dismiss the writ and proceedings for various irregularities in the same, which said motion was sustained by the court. On motion of defendant, by his counsel, the court then entered a.judgment against the plaintiff for the value of the property replevied, with damages for the detention thereof; and awarded a writ of inquiry, returnable to the next term of said court, for the purpose of ascertaining the same. The writ was issued accordingly, and was executed in open court; and on motion of the plaintiff, the assessment was set aside and a new trial awarded. At a subsequent term the case was called, the parties appeared by their counsel, and a trial was had before the court, and a jury called from the regular panel. A new writ of inquiry had not been actually issued to the sheriff, but the parties went into the investigation without this formality, and the jury made an assessment of the value of the property replevied, together with the damages for the detention thereof, on which judgment was rendered against the plaintiff by the court. To reverse the judgment this writ of error was sued out.

The errors assigned by the plaintiff in error that, under the view taken by the court of this case, are considered material or necessary to be noticed are the following :

1. The court erred in entering judgment for the value of the property, etc.

2. No writ of inquiry was served upon the jury, but they were called from the regular panel for the term.

3. The court erred in allowing the defendant three peremptory challenges of the jurors called.

It is well settled that, if a writ of replevin be abated or quashed on the plea or motion of defendant, without any suggestion entitling him to the possession of the goods, he shall have judgment for his costs, but not for a return. The writ in this case was quashed or abated, and all proceedings dismissed, on an informal motion of the defendant alone, which is considered equivalent to a plea in abatement. In such a proceeding, if positively within authority of law, it is necessary for the defendant to avow, make conusance, or make a plea or suggestion on record, to entitle him to the possession of the property, before the court could enter judgment for a return or for the value of- the property, with damages. Story’s Pl. 449, 450; Gould v. Barnard, 3 Mass. 199; Gilbert on Repl. 169. But it is contended that this judgment is authorized by the thirtieth section of an act concerning replevin, on page 275 of the statutes, which is : £c If the property specified in the writ has been delivered to the plaintiff, and the defendant recover judgment by discontinuance or nonsuit, such judgment shall be, that the defendant shall have return of the goods and chattels replevied, unless he shall elect to waive such return, pursuant to any of the provisions hereinafter contained; and, also, that he recover the damages sustained by Mm by reason of the detention of ,such goods and chattels, which damages shall be assessed by a writ of inquiry.” The first proposition to be considered is, whether this judgment in abatement, or order of dismissal, is a judgment of discontinuance or nonsuit within the spirit and meaning of this section of the statute.

A discontinuance is either voluntary or involuntary: voluntary where the plaintiff withdraws his suit; involuntary, where in consequence of some technical omission, mispleading or the like, the suit is regarded as out of court; or the plaintiff omits to enter proper continuances, or the like. Graham’s Pr. 603; 8 Peters Abr. 387-393. Nonsuit is either voluntary or compulsory, when a judgment, or order of a court is entered for a discontinuance of a cause, or the nonsuit of the party, it is made when the cause is supposed tobe legally and properly brought, and the parties legally and properly in court. But in case of an abatement of a void or voidable writ, for illegality or irregularity, the judgment of the court is, that the writ is not sufficient to bring the defendant into court, or to entitle the plaintiff to prosecute Ms suit. Where a writ is adjudged to be void or voidable, the parties are not considered to have been legally in court. The court refuses to take cogmzance of the cause, or to recognize the parties, as being legally upon the record. The court in such case, cannot make any other order, than to dismiss the suit at the cost of the plaintiff. No writ of inquiry can issue, or adjudication be had thereon, upon such an order or judgment, unless authorized by statute. In this case the court decided, that the parties were not legally in court, and consequently, that the property was not legally replevied. Prom this, it must be apparent, that the order or judgment of the district court, dismissing the writ and proceedings, is not such a judgment by discontinuance or nonsuit, as is contemplated by the aforesaid section of the statute, and will not entitle the defendant to a judgment of return. The district court, followed, in this instance, the erroneous practice, that has inadvertently prevailed throughout the ‘Territory, to consider an order of dismissal or judgment in abatement of a writ of replevin, equivalent to a judgment by discontinuance or nonsuit, which practice it is our duty now to correct.

The case under consideration does not present the question whether the defendant is entitled, by the thirtieth section of the aforesaid act, to a return, upon a. judgment by discontinuance or nonsuit, without having first pleaded such plea as would in law entitle him to a return, and of this we give no opinion.

Although this case is now disposed of, yet the two remaining assignments of error will be considered.

The second assignment of error refers to the practice relating to the execution of a writ of inquiry of damages. The practice on this subject is various in different States, and is principally regulated by statute. In this Territory there is no statute upon the subject. Por this reason a different practice has been pursued in the different districts. Damages, in ordinary cases can be assessed in term time, by a jury called from the regular panel, without a writ. The act concerning replevin requires a writ to be issued. Under this act the writ may be issued returnable in term or to the next term, and it will be proper for the sheriff to take the jury from the regular panel. There can be no reasonable objection to this, and the jurors being paid by the public, this much of the expense is thereby saved to the party. It is proper to execute this writ in open court, under the direction of the presiding judge. This is in every respect, the better course, as the many legal points frequently raised during such examinations, can be at the time, legally disposed of; whereby the case may be submitted to the consideration of the jury, with greater certainty of the correctness of their decision. Under this practice, the parties are to be considered in court, without any previous express notice of the execution of the writ.

The court has examined the statutes in force upon the subject of drawing, empanneling and challenging of jurors, and, although the taking an inquest is not technically the trial of a cause, yet for the purpose of having a disinterested and intelligent jury, and of obtaining a just and proper decision of the, facts submitted, it is considered that it is not error to allow to either party three peremptory challenges, as provided in the act upon the subject, approved January 9, 1841; and, also, the jurors may be examined under the direction of the court, according to section 26 of the act concerning grand and petit jurors. Wis. Stat. 267.

The judgment of the district court of Dane county, for the value of the property replevied, with the damages for the detention of the same, is reversed with costs.


text:
    Dewey vs. Hyde.
    Jurisdiction—arrest of jud&ment. When a want of jurisdiction appears at any stage of a cause, it is the duty of the court to dismiss the action; and where it appears to this court that the court below had no jurisdiction of the subject-matter of the action, its judgment thereon will be reversed, and the court below directed to arrest further proceedings.
    ERROR to the District Court for Milwaukee County.
    Assumpsit brought by Hyde against Dewey, before a justice of the peace, in which, February 10, 1843, he declared against Dewey on an account, for $44 and interest. Plea of general issue and judgment for the plaintiff for $44, and costs, from which Dewey appealed to the district court, where the cause was tried at the June term, 1844, when the plaintiff had a verdict for $56 damages, and for costs. A motion for a new trial was made and overruled. The bill of exceptions shows that the account was for the price of a stove — $44 — sold and delivered in March, 1840, and, although when the action was commenced before the justice, the demand with accrued interest, amounted to over $50, the record does not show that any question as to jurisdiction was raised either before the justice or in the district court.

      Peter Yates, for plaintiff in error.
    No appearance for defendant in error.
   Miller, J.

This suit was brought by Oliver M. Hyde against Qharles O. Dewey before a justice of the peace of Milwaukee county in assumpsit. The plaintiff declared informally before the justice, on an account for $44 and interest, the price of a stove sold in March, 1840. The justice rendered judgment against the defendant for $44 and costs — from which the defendant appealed to the district court of said county, where the cause was tried, at the last June term of said court, and a verdict and judgment were rendered according to the claim of the plaintiff, for $56. The question of jurisdiction was not raised in the district court, or the judgment would there have been arrested. It was raised for the first time, by the assignment of error and in the argument of the cause, in this court. Upon the principle, that whenever want of jurisdiction is made to appear at any stage of the cause, it is the duty of the court to dismiss the case from its consideration, we have examined the point and find it to be thus: The plaintiff claimed $44 and interest, the price of a stove sold and delivered in March, 1840, at the special instance and request of the defendant. The proof returned with the record, sustains this claim. The summons was issued by the justice in February, 1843, when, including the interest, the amount claimed was about $53. There is no question but that the legal interest on a demand composes part of the amount claimed, and is properly to be taken into the computation, upon the consideration of this question of jurisdiction. That the justice rendered judgment for the principal only, is no answer to the objection. The jury allowed interest according to the claim filed and declared upon, and according to the proof. The plaintiff showed himself out of the jurisdiction of the justice, as clearly as in the case of Barker v. Baxter, ante. The court will therefore direct that the judgment of the district court of Milwaukee county be reversed, with a mandate to said court to arrest any further judgment or proceeding in said cause.

Judgment reversed accordingly.


author: Irwin, J.

text:
    Garrison vs. Owens.
    1. Limitation—pleading. Where in an action upon a promissory note, the defendant pleaded non-assumpsit within six yea/rs, and the plaintiff failed to pnt in a sufficient replication to the plea, a judgment for the plaintiff will be erroneous.
    2. Same. Where to an action brought upon a promissory note, which became due more than six years before suit, the defendant pleads nonassumpsit within six yem’s, and the plaintiff seeks to avoid the statute bar by showing the note was subscribed by an attesting witness, he must set out such fact specially in his replication to the plea.
    3. Signature—parol evidence. It seems that where the name of a party appears upon an instrument in the usual and proper place for the signature of a party who is the maker or is to be bound thereby, and the name of another person appears upon it in the usual and proper place for the name of a subscribing witness, but without any attestation clause to show in what capacity he signed it, parol evidence is admissible to show that he signed it as a subscribing witness.
    ERROR to the District Court for Iowa County.
    The case is fully stated in the opinion of the court.

      F. J. Bunn, for plaintiff in error.

      Parley Eaton, for defendant in error.
   Irwin, J.

This case came up on error to the district court of Iowa county, on a judgment given at its September term for 1843, in favor of the plaintiff for the sum of $145.80.

The declaration was on an instrument in writing, of which the following was given as a copy:

“For value received, I promise to pay Simeon Owens five thousand three hundred and seventy-five lbs. of lead by the 1st day of August next, as witness my hand this 21st day of August, 1829. WM. GARRISON.”
“ George Brown.”

And contains the usual counts, and to which the defendant interposed two pleas ; the first, the general issue, and the second, a plea of the statute of limitations of six years. Upon the first the plaintiff took issue, and to the second replied inartificially and insufficiently. Upon this state of the pleadings a jury was dispensed with, and the case submitted to the court upon the production of the instrument and the testimony of two witnesses, who proved the value of the lead at the time the instrument became due.

The period of limitation, as fixed by the statute in actions of this kind, is six years; but to this there is an exception, as will be seen on page 261 of the statutes, section 19, and in these words: “None of the foregoing provisions shall apply to any action brought upon a promissory note which is signed in the presence of an attesting witness, provided the action be brought by the original payee or by his executor or administrator.” In this case the suit is brought by the original payee.

By the eighty-first section (page 250 of the statutes of this Territory) of “an act concerning depositions and testimony,” it is provided, that “ every written instrument purporting to have been signed or executed by any person, shall be proof that it was so signed or executed, until the person by whom it purports to have been signed or executed shall deny the signature or execution of the same by his oath or affidavit.” In this case no such denial was made, and for this reason the instrument must be regarded as having been executed by the defendant ; nor does the fact that a note is attested by an attesting witness at all alter the provisions of the law just recited, or make it incumbent on the plaintiff to prove the attestation of the witness, as that relates to the execution of the instrument.

The instrument declared on in this case has the name of one George Brown on its face, in the place where an attestation is usually made; but there is nothing beside the place to indicate for what purpose the name is there placed. The usual and proper mode of attestation is to give evidence of the intention of the parties to the instrument, to have it attested by writing the sign of that intention in some of the various forms or modes of doing that act, suchas “in presence of ;” “witness,” etc., etc. Upon the face of the instrument in question there is no such evidence—nothing written to tell in what capacity George Brown’s name appears. In such a case as that it must necessarily be left to the jury or the court (as it may be decided by the one or the other, according to the agreement of the parties), to determine whether it was there as an attesting witness or not, and the plaintiff may risk the conclusions of the mind as produced from the position of the name, or he may relieve the instrument from that doubt by introducing proof that it was there in attestation; and whether the name is- there in attestation or not is very important, for if it be there in attestation, then six years do not bar recovery; if it be not there in that character, then the statute, in the absence of counteracting facts, would bar it.

Whether the parties to this suit regarded the name of George Brown as that of an attesting witness or not, this court cannot' say. So far as the pleadings go, it is regarded as a nullity; but we presume that so important a fact was not intended thus to be regarded, but has failed to be taken advantage of on the part of the plaintiff by a proper replication to the plea of limitation, which would have been to have replied, that the note was attested by an attesting witness.

In Massachusetts, the statute of limitations is like ours, and a decision under that statute of a case exactly in point is reported in 16 Mass. 290; another affecting this case on page 314, as well as one in 8 Pick. 146 ; 16 Mass. 290. In the case under consideration, the defendant’s plea of the statute of limitations is not sufficiently replied to, and would not have been, even had there been no such exception as is made by the statute, and, being undenied, it would have been improper for the court to have given a judgment in favor of the plaintiff; but if the plaintiff, seeing that more than six years had elapsed from the making of the note (and the note, execution of which had not been denied, was the evidence of that), intended to have availed himself of the provisions of .the law in favor of notes with an attesting witness, he should have replied that specially, as already intimated; but he did not do so, and if he received, in the consideration of the court, any benefit from the law, he was not entitled to it, and it would have been error.

Under this state of the pleadings and the facts of the trial, as made known to us by the bill of exceptions, we are satisfied that the plaintiff could not properly recover, and that the court below erred in rendering for him a judgment, which is accordingly reversed. And believing that the special or second plea was not sufficiently replied to, it is ordered that this reversal be certified to the district court, that it may proceed, under the correction thus suggested, to the further trial of this cause.


author: Dunn, C. J.

text:
    Hurd vs. Jarvis.
    1. Attachment—facts to be shown foe. Under a statute which provides that a writ of attachment may issue, upon showing that the defendant is about fraudulently to remove, convey or dispose of his property, to hinder and delay his creditors, the facts must show that the defendant is so acting with his property, out of its ordinary and necessary use, as to produce a reasonable conviction that a fraudulent disposition thereof is intended.
    2. Affidavit for writ. An affidavit showing that the defendant is using his property in the only way in which it could be of any value and is strictly conforming to the usages and customs of business, furnishes no ground for the writ, and hence, an affidavit showing that'the defendant was on his way down the Wisconsin river to the southern market with a raft of lumber which he was removing out of the Territory, and which was all the property he owned, did not show any cause for ah attachment.
    3. Attorney — court commissioner. It is not competent for an attorney who is also a court commissioner to allow a writ, by which an action is to be commenced by him, as attorney for a client.
    ERROR to the District Court for Dane County.

      Hurd sued out a writ of attachment against Jarvis, upon the following affidavit and indorsement of allowances thereof:
    “ Elliot Hurd, the above-named plaintiff, being duly sworn, doth depose and say, that Harris Jarvis is justly indebted to Mm, arising out of a contract under seal, in the sum of $700, and that the said Jarvis is about fraudulently to remove, convey or dispose of his property, so as to hinder him, the said affiant, the creditor of said Jarvis, from collecting Ms said debt.
    “The reasons and circumstances upon wMch the belief of the above facts are founded are as follows: that the above defendant is now on his way down the Wisconsin river with a large raft of pine lumber, bound for the southern market, and is now removing the same out of tMs Territory; that the said lumber is all the property that said Jarvis owns in said Territory or elsewhere to the knowledge of this affiant.”

      Upon which was the following indorsement:
    “I, Alexander Botkin, a supreme court commissioner in and for the county of Dane, do certify that I am satisfied of the truth of the within affidavit, and that a writ of attachment herein be allowed, and that the clerk of the said district court do issue said writ,- in accordance with the law in such cases.
    “A. BOTKIN,

      “Supreme Court Commissioner.”

    The defendant moved the court to dismiss the proceedings, because the facts set out in the affidavit did not show any thing fraudulent or dishonest against the defendant and for other irregularities. The district court sustained the motion and dismissed the suit.

      J. Ct. Knapp, for plaintiff in error,
    to show that the affidavit was sufficient, and that the case ought not to be dismissed in a summary way, but the defendant should be put to a traverse of the charge upon which evidence could be produced by both sides, cited Cow. Tr. 476 ; 2 N. Y. R. S. 162, § 26 ; 1 id. 764 ; 2 Yeates, 277 ; 2 Wend. 298; 1 id. 43; 3 Caines, 557. The indorsement of the supreme court commissioner was a judicial act and cannot be questioned.

      Abbott & Qatlin, for defendant in error.
   Dunn, C. J.

A writ of error is prosecuted in this case to reverse the judgment of the district court rendered herein, on a motion by the defendant to dismiss the proceedings in the cause for reasons assigned, at the November term of said court in 1843.

The ground taken in the motion by defendant to dismiss, was, “that the facts set up in the affidavit of the plaintiff were not sufficient in the law to authorize the issuing of the writ of attachment.”

The plaintiff asserts in his affidavit “ That the defendant Jarvis is justly indebted to him, in the sum of $700 arising out of a contract under seal; that he (defendant) is about fraudulently to remove, convey, or dispose of Ms property, so as to hinder Mm, the said affiant, the creditor of said Jarvis, from collecting Ms said debt.” “The reasons and circumstances upon wMch the belief of the above facts is founded are, that the above-named defendant is now on his way down the Wisconsin river with a large raft of pine lumber, bound for the southern market, and is now removing the same out of this Territory. That said lumber is all the property said farms owns in. said Territory or elsewhere to the knowledge of affiant.”

We need not look any further than the affidavit in tMs cáse, no authority can sustain it. The patent defects, glaring upon its face condemn it, and no support in reason and law can be found for it. When the fact, “that a defendant is about fraudulently to remove, convey or dispose of his property to hinder or delay Ms creditors,” is a ground for proceeding in attachment; the facts stated to sustain the position, should show that the defendant is so acting with his property, out of its ordinary and necessary use, as to produce the reasonable conviction that a fraudulent disposition thereof is intended. To state in the affidavit, circumstances showing that defendant is using Ms property in the only way in wMch it could be of any value whatever, and strictly conforming to the usages and customs observed in that line of business by persons so engaged, furnishes no ground whatever to authorize the writ of attachment. As well might you say that the same position can be maintained against a merchant by stating the fact that he is daily making large sales of his merchandise in the customary way, by sending it to the best markets, and has no other property to the knowledge of the affiant. Such a construction would put a stop to some of our most useful and necessary branches of business, and deprive debtors of the means of meeting their contracts, by the exercise of enterprise and industry, the only capital which a poor man possesses.

From an inspection of the record in this case, we find that one of the plaintiff’s attorneys allowed the writ of attachment, as supreme court commissioner. Upon this we make the intimation, that if the affidavit had been otherwise good and the district court had sustained a motion to dismiss, upon an objection to the officer who allowed the writ, he being one of the plaintiff’s attorneys, this court would be much inclined to sustain the decision. The streams of justice should be preserved not only pure and unsullied, but free from even suspicion. The judgment of the district court of Dane county is affirmed, with costs.


text:
    Warren v. Aller et al.

    1. Tenants in common—actions between. One tenant in common of a chattel may maintain trespass against his co-tenant for a destruction of the property held in common.
    2. Same. One tenant in common of a chattel may maintain trover or trespass against his co-tenant where such co-tenant sells the entire chattel without his consent. The legal effect of such sale upon the rights of the injured party, is the same as in case of a destruction of the property.
    ERROR to the District Court for Bock County.
    Action of trespass commenced by Warren against John Aller and Jesse Aller and eleven others, for breaking and entering his close and taking and carrying away his wheat and other crops. The defendant pleaded not guilty and gave notice of special matter in justification.
    The facts proved at the trial are substantially stated in the opinion of the court. The district court charged the jury:
    1. “ It has been attempted to be proved, and if it was proved that Jesse Aller had rented one half of the field on which, the wheat grew and John Aller the other half, Warren to furnish seed, plough, etc., and to have one half of the grain raised; and it was further proved that Jesse Aller and John Aller worked together all over the field ; and if it was further ’ proved that Warren and Jesse Aller agreed that Jesse Aller, instead of taking his share, to wit, one-half of the grain raised on one-half of the field rented by Jesse Aller, should take a fourth all over the field, this would make Jesse a tenant in common with Warren all over the field. It was attempted to be proved that the same agreement extended to John / if the same agreement was made with him, John, and he worked all over the field, it would make bim a tenant in common all over the field.”

      2. “It has been contended by the counsel for the plaintiff that, as by the terms of the contract, the wheat was to be put into shocks, and then each party to take every other shock, that neither party would have a right to take the whole. The law is, that the possession of one tenant in common is the possession of all, and that as such either could haul and stack the whole, and not thereby be made liable to the others in trespass.”
    3. “It has been contended by the counsel for the plaintiff that a sale of the whole chattel owned by tenants in common works such a destruction as would entitle the other to maintain against his co-tenant an action of trespass or trover, that is the decision of a judge in the State of New York; the express contrary doctrine is contained in Saunders, taken from Chitty and others ; the distinction is a nice one, and I will' not undertake to say which is correct. But one thing is certain, that in point of fact, a mere sale is not a destruction.”
    Yerdict for the defendants, and a motion made by the plaintiff for a new trial, on the ground of error in the instructions of the court, and that the verdict was contrary to law and evidence, was overruled and judgment rendered against the plaintiff for costs.

      J. H. Knowlton, for plaintiff in error.
    In all cases where trover will lie for a tortious taking, trespass can be maintained (7 Cowen, 139-735; 15 Wend. 79; 8 id. 610; 9 Johns. 108; 1 Chitty’s Plead. 122), and one tenant in common may maintain trespass against his co-tenant where the chattel, which is the subject of the tenancy in common, has been destroyed by him; and the law is the same in the case of a wrongful sale of the property by one tenant in common. 3 Johns. 174; 2 Kent’s Com. 350, note 13; 3 Starkie on Ev. 1495; 1 Chip. 241; 7 Wend. 354.

      David Noggle and Edward V. WMton, for defendant in error.
    A mere sale by one tenant in common is not a destruction of the property of his co-tenant, and trespass cannot be maintained by him. All the cases which establish a liability in such a case have been actions of trover. The charge of the court on this point is sustained by 2 Wm. Saund. 47, n. g. ; 4 East, 110; 1 Chitty’s Plead. 172 ; 2 Johns. 468.
   Dunn, C. J.

The plaintiff in error Warren, who was plaintiff below, brought his action of trespass against the defendants, in the district court of Eock county, and at the September term, 1844, the case was tried on the issue taken on the plea of not guilty, with notice of justification. It was proven on the trial, that about the 1st July, 1842, the plaintiff had' let his field (the close where the trespass is charged to have been committed) to the defendants John Aller and Jesse Aller, in separate contracts ; the south half to John Aller, and the north half to Jesse Aller, to work on the same conditions that one Charles Wardle had previously agreed to work the said north half of the field. The terms,of the letting thus agreed on, by reference to the contract with Wardle, are among other things, “that the defendants were each to put in not less than 40, nor more than 50 acres of winter wheat; the ground to be well ploughed and harrowed, and the seeding completed on or before the 10th day of September; the remainder of the ground to be well ploughed and put into spring crops of corn, oats, potatoes, peas, beans and barley,, the quantity varying according to the condition of the ground, and all the spring crops to be planted and sowed in proper season ; all crops to be cut, gathered and secured in good season, and in a proper and cleanly man’ner; all, including ploughing, harrowing, seeding and harvesting, to be done in a husband-like manner; the defendants to give the plaintiff one-half of all the crops, to be divided in the following manner : Wheat and oats to be cut and bound in bundles, and put in shocks of one dozen each, with caps, each party then to take every other shock,” etc. Other facts, immaterial to the question upon which this case must turn, were proven on the trial; and then it was proven that defendants, without division, according to the terms of letting, took and carried away from said field a large quantity of wheat in bundle, taking every shock as they came to it, forbidding the plaintiff from taking any of the wheat, and compelling him, at one time, to quit the field; that defendants carried the wheat from the field, to a Mr. Winston’s farm, about a half a mile distant, and stacked the same. A witness testified that some short time after he heard a contract of sale between one of the defendants, John Aller, and one Osborn, of some wheat, five or six stacks, at Winston’s farm, but did know what wheat it was. The jury returned a verdict for the defendants, under the instructions of the court, upon the points raised.

There are several errors assigned on the instructions, and one on the ruling of the court, permitting the defendants to introduce and read as evidence on the trial the record of said court, of the proceedings on a reference and award between the plaintiff and one of the defendants {John Aller), to rebut the testimony of witness John Warren, introduced by plaintiff, in which testimony the witness testified, that “it was referred to the arbitrators to determine how much the plaintiff was bound to pay defendant John Alter, for his services in putting in the fall crop of wheat on said south half of the field.” We do not consider this ruling of the court material to the dispositions of the case in this court. We may assume that the court might properly have ruled out this portion of the witnesses’ testimony, for the reason that the reference and award were the best evidence on this point, but it being received for the plaintiff’s advantage, he cannot object to the introduction by defendants, of the reference and award, to rebut witnesses’ testimony. And the objections, that they were not pleaded, and were not between the same parties, do not apply. The error assigned on the instruction of the court, “that a mere sale is no destruction of the property, for which an action of trespass will lie,” is, necessarily, from the evidence, the material question to be decided.

The fact of sale was of course, an inquiry for the jury, and was the main ground of recovery in the plaintiff’s case in the form of action adopted. The principle is well settled, that one tenant in common of a chattel, may maintain trespass against another for a destruction of the property held in common. 1 Chitty, 79, 173; Co. Lit. 200, (a). And the reason assigned is, because his interest therein is thereby determined.

It was a question, whether a sale of the whole chattel would entitle one tenant in common to an action of trover- or trespass against another, but it seems to be now well settled by the modern decisions, that in such cases the action of trover or trespass lies in favor of the injured party. Litt. § 323; Co. Litt. 200 (a); Wilson v. Reed, 3 Johns. 175; Femnings v. Greenville, 1 Taunt. 241; Barton v. Williams, 5 Barn. & Ald. 395; Farr v. Smith, 9 Wend. 338; Mersereau v. Norton, 15 Johns. 179; Chipman’s Rep. 242; 7 Wend. 357.

The distinction attempted to be drawn, that for such injury, trover lies and not trespass, is not established or recognized in the decisions. Either action may be maintained. 2 Kent’s Com. 250, note (a).

The effect and tenor of the ruling of the court in the instruction is, that for a sale by defendants of the chattel, held in common with plaintiff, the plaintiff could not recover in the action of trespass ; though not given in these precise terms. It is said in the decisions, that a distinction has been attempted between the sale of a chattel and a tortious destruction, but that is a distinction not maintainable. There is unquestionably a difference in the meaning of the terms when defined, but their legal effect upon tenants in common is the same, and trover or trespass will lie for either, in favor of the party injured.

The other instructions of the district court, were mainly upon such facts as constituted the plaintiff and defendants (Alters) tenants in common, and are not important to be here considered.

We are of opinion that the court erred in the instruction given, and should have instructed that a sale of the whole of a chattel by one tenant in common, is an injury for which the other may maintain trover or trespass. The court also erred in overruling the motion for a new trial.

Ordered that the judgment of the district court be and the same is hereby reversed, with costs, and this cause remanded to said court for further proceedings.


text:
    Petitt vs. Pritchard and another.
    Certiorari. Section 1 of article 12 (Stat. of Wis. 340), respecting tlie writ of certiorari, in cases in wliicli tlie recovery does not exceed $15, remained in force, and was not repealed by tlie act of January 30,1844, “ concerning justices of tbe peace and for other purposes,” and the writ, if sued out more than twenty days after tbe rendition of judgment, will be dismissed.
    EBBOB to the District Court for Dane County.
    The case is stated in the opinion of the court.

      A. L. Oollins, for plaintiff in error.

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

The plaintiff brought this suit into the district court by a certiorari to a justice of the peace. In the district court a motion was made, by defendants, to dismiss the case for the reason that the writ of certiorari was not allowed and issued according to law, and it appearing that it was not sued out within twenty days from the day of the rendition of the judgment by the justice, the said case was dismissed by the court.

The only question raised in this court is, whether the first section of article 12, on page 340 of the statutes, is in force. We have decided, during this term, that the whole of this article is in force. The legislature evidently intended to continue the practice respecting the writ of certiorari, in cases in which the recovery does not exceed $15. The whole of the article 12 seems to the court to be necessary to enable the party to remove his case properly and the court to have it fully and justly disposed of. If the court could dispense with any part of it, which seems to be a system of itself, we would have to/legislate in every case presented, and thereby run the practice into confusion. The practice is to be considered the same, in cases wherein the writ of certiorari is now allowed, as if the act of January 30, 1844, entitled “an act to amend an act concerning justices of the peace and for other purposes,” had not been passed, excepting that it shall be the duty of the justice to return all the testimony and proceeding had before him.

It is ordered that the judgment of the district court be affirmed.'


text:
    Lessey vs. The President and Trustees of Green Bay.
    1. Municipal corporation—estoppel. In an action upon a note given to the president and trustees of Green Bay for a balance of the sum required of the maker for a grocery license, under the act incorporating the town of Green Bay, the defendant is presumed to have had full knowledge of the powers conferred upon the president and trustees, and having contracted with them for a license under the act, and enjoyed its benefits, is estopped from raising any question as to their authority to grant the license, or whether they had passed and published any ordinance on the subject of granting licenses.
    2. Charter oe Green Bat. The provisions of the act incorporating the
    town of Green Bay (Laws 1839, 22), relating to granting licenses, were not repealed by the territorial statutes of 1839.
    ERROR to tlie District Court for Brown County.
    The case is stated in the opinion of the court.

      Morgan L. Martin, for plaintiff in error.
    After the defendant had proved that the consideration for which his note was given was the granting of a grocery license, it then became the duty of the plaintiffs to prove that they had done all that the law required on their part to perform the contract. 1 Cow. & Hill’s notes, Phil. Ev. 475. They should have shown that they had passed and published an ordinance on the subject, and had authority to grant a license. The authority relied on was given by the act of March, 1839, incorporating the town of Green Bay (Local Laws 1839, 22); but this act was virtually repealed by Wisconsin statutes of 1839, which took effect July 4,1839, vesting the power of granting licenses in the county commissioners.

      D. Agry and John Oatlin, for defendants in error.
   Dunn, C. J.

This was an action of assumpsit brought by the defendants in error as plaintiffs below against the plaintiff in error, who was defendant, in the district court of Brown county, to recover the amount due on a promissory note given by the defendant to the plaintiffs, for $82.27. The case was tried at the October term, 1842. The note was read as evidence to the jury, and the plaintiffs closed. The defendant then proved that the note was given to the plaintiffs for the balance of $100 which defendant had agreed to pay plaintiffs for a grocery license. The defendant offered the clerk of. the board composed of the plaintiffs, to prove, that “no ordinance had ever been published in conformity with the terms of the charter, relative to the licensing and regulating groceries in said town,” which was objected to and rejected by the court.

The defendant then offered to prove by the same clerk, that “there was no ordinance or by-law of the president and trustees, which had been passed and published according to the charter of the town authorizing the treasurer to grant license or make any contract respecting a license, or receive a note in payment for a license, to keep a grocery within said town;” which was also objected to and rejected by the court.

The case was then submitted to the jury upon this charge : ‘ ‘ That the note presents a legal claim ; to prevent the recovery, the defendant proves that it was given for the'balance of payment fora grocery license. The opinion of the court is, that the plaintiffs can in law, recover on a note given for this consideration.” The jury found for the plaintiffs.

The grounds assumed in error, are: 1st. “ That the only consideration for the note declared on was á pretended license to keep a grocery.” 2d. “Thatthe keeping a grocery without license, being a criminal offense by statute, it was necessary that the power to grant license, and the granting a legal license, sufficient to protect the defendant from the penalty imposed for that offense, should be shown by the plaintiffs, or the note ivas without consideration and void.”

The true consideration of the note being proven, the foundation of all legal objections to the consideration of the note is laid.

The only question to be examined here is, whether the plaintiffs below, under the facts of the case, were required to go behind the note, and prove that they had, by complying with the terms of their charter, in every respect, acquired the power of granting a legal license. The defendant below contracted with the plaintiffs as a corporation legally in existence with the power to grant grocery license. Their charter was a public act, though operating in a particular locality, for the ease and convenience of the inhabitants of the village of Green Bay; and the ordinances were equally public, when made. The defendant had every means of knowing the power and authority of the plaintiffs in the premises, and having contracted for a license, and derived a benefit under the contract, the law will presume that he had full knowledge of the power of the plaintiffs, properly acquired, to confer the benefit for the price agreed on, and hold him estopped from raising any question on the consideration of the note, either growing out of their existence as a corporation, or the passing and publishing ordinances in relation to the license granted.

This principle has been decided by this court, in McKnight v. The President and Trustees of the town of Mineral Point, ante, and an analogous case is there referred to. Henriques v. Dutch West India Company, 2 Lord Raymond, 1535. Strict preliminary proof is not required in such cases, the party defendant below, having concluded himself on these points. 1 Peters, 450; 7 Cowen, 462; Davis v. Insurance Company, 1 Johns. 486; 1 Blackf. 333; 5 Wend. 547.

It is unnecessary to consider where the onus próbandi lay, as the facts insisted on in defense were not admissible in this case.

We are decided, that the local law incorporating the president and trustees of the town of Green Bay was in force at the date of the transaction, and not in any way disturbed or set aside by the general law regulating the granting of grocery license, if it were necessary to consider that question here at this point.

The judgment of the district court is affirmed, with costs and damages thereon, at the rate of seven per centum on the amount recovered below.


author: Irvin, J.

text:
    Corwith v. Morrison.
    1. Note past due—indorsement. Where a promissory note is indorsed after it is past due, in order to charge such indorser, a demand of payment must be made of the maker within a reasonable time thereafter, and notice of non-payment be given to such indorser.
    ERROR to the District Court for Iowa County.
    Assumpsit brought by Morrison against Oorwith as indorser of the note mentioned in the opinion of the court. It appeared that Corwith transferred the note after maturity. Upon the trial no proof was given to show demand of payment of the maker or notice of non-payment to Oorwith.

    The district court instructed the jury that, “as a general rule, the plaintiff would be required to prove on the trial that a demand of the maker had been made when due, and that he refused to pay, of which the defendant had notice; but that, if it appeared in proof that the defendant himself transferred the note after it was due, the plaintiff was not required to make proof of demand, refusal and notice. Verdict and judgment for the plaintiff.

      Moses M. Strong, for plaintiff in error.

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

In this case the defendant in error brought suit against the plaintiff in error, as indorser of a promissory note, of which the following is set out as a copy:

“ Graleña, October 31,1837.
Ninety days after date, I promise to pay to Henry Corwith, or order, two hundred and forty-five dollars^ value received, payable at the branch of State bank of Illinois, at Galena.
thomas Mcknight.”

On the back of which was the following indorsement:

‘ ‘ Pay Lewis P. Morrison, or order, February 4th, 1838.
HENRY CORWITH.”

The declaration is in the usual form, and makes the proper averments of demand, failure to pay and notice thereof.

It appears from the proceedings had on the trial, that this note was transferred by or passed from the defendant in the action, after it became due. It also appears that the plaintiff in the action gave no evidence of demand, refusal and notice, and it also appears that the court, among other instructions, gave the following: “If it appears in proof in this case, that defendant himself transferred the note to another, after it was due, then plaintiff is not required to make the demand, refusal and notice; ” after which a verdict was found for the plaintiff.

This court, in 1841, in the case of Catlin et al. v. Jones, ante, in which case the indorsement was made in blank by Milton before the note was due, said: “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 indorser 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, 157; 4 Wash. C. C. 1. In. the numerous authorities above referred to, will be found decisions upon indorsements after due as well as before. In the case of Colt v. Barnard, 18 Pick, 260, it is decided, that “when a note on time is indorsed after it is over due, a demand on the maker must be made within a reasonable time in order to charge the indorser.”. “In the case of all notes, whether over due or not, to render the indorser liable, there must be demand and notice, unless a contract of a different nature from that of indorsement, is to be implied from special circumstances, and the undertaking of the parties at the time of the transaction.” McKinney v. Crawford, 8 Serg. & Rawle, 357.

The failure of the plaintiff below to prove demand and notice would have been conclusive against him, and the court erred in that respect in its charge to the jury. Deeming this to be the law, we consider it unnecessary to notice any other objections. The judgment is therefore reversed, with costs.

Dunn, C. J., dissenting.


text:
    Graves vs. McWilliams.
    1. Local act — not therefore private. The fact that the charter of Green Bay is a local law does not, in contemplation of law, render it a private act, so as to take from its officers their public character, and those immunities which such officers have by law.
    2. Agency—contract. If an agent on behalf of government, makes a contract, and describes himself as such, he is not personally bound, even though the terms of the contract be such as might, in a case of a private nature, involve him in a personal obligation.
    3. Same. An agent bn behalf of the public may bind himself by an express engagement, and in all cases where it is sought to hold such an agent personally liable, the inquiry is, to whom was the credit intended to be given.
    4. Village orders. Where a village officer as such drew an order for a sum of money upon another officer of the village, in favor of a third person, held,, that the officer drawing such order could not be held personally liable thereon.

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

      Morgan L. Martin, for plaintiff in error:
    The clerk had no authority to draw the order; and it does not bind the town, but is binding on the drawer individually. 13 Johns. 310 ; 1 Cowen, 536.

      John Catlin, for defendant in error:

      Me Williams 'merely attested the order in his official capacity as clerk, as it was his duty to do. In such case the officer is not liable personally, unless he expressly binds himself. 1 Cranch, 345; 2 Kent’s Com. 632. It is obvious that he did not intend to bind himself, and that the credit was not given to him, but to the corporation, and he is therefore not liable. 11 Mass. 96; 2 Creenlf. 14.
   Irvin, J.

In 1839, the legislative assembly of the Territory passed an act of incorporation for the town of Creen Bay. Afterward, as we suppose (for the instrument has no date), George Me Williams, as clerk, drew the following order:

“No. 125. President and Trustees' OMee,)
Creen Bat, W. T. • j
Sib : Pay J. H. Smalley, or bearer, one dollars out of any money in the treasury unappropriated. North Ward.
Attest, C. Mo WILLIAMS, Cleric."

On the 13th day of August, 1842, the present plaintiff (as bearer we suppose) commenced suit before a justice, against the defendant, to recover the amount of the order, and afterward obtained judgment, from which an appeal was taken to the district court, where the naked question of the defendant’s liability on the order seems to have been submitted, and on which the court decided in favor of the defendant, from which decision the case is brought here on writ of error.

The principal ground relied on by the plaintiff is, that the defendant, having no authority under the charter to draw such an order, by the act of drawing became personally liable, regarding it as a promise on his part to pay. The obvious reply to this is, that he acted as a public agent, and was dealt with in that capacity.

The fact that the charter of Green Bay was local does not make it, in the just contemplation of law private, to the extent of taking from its officers their public character and those immunities given to them as such. Chancellor Kent, in the 2d volume of his commentaries, asserts that “there is a distinction in the books between public and private agents, on the point of personal responsibility. If an agent, on behalf of government, makes a contract, and describes himself as such, he is not personally bound, even though the terms of the contract be such as might, in a case of a private nature, involve him in a personal obligation.” Macbeath v. Haldimand, 1 Term R. 172; Unwin v. Wolsely, id. 674; Brown v. Austin, 1 Mass. 208; Daws v. Jackson, 9 Mass. 490; Hodgson v. Dexter, 1 Cranch, 345; Walker v. Swartwout, 12 Johns. 444; Rathbone v. Budlong, id. 15; Adams v. Whittlesey, 3 Conn. 560; Stinchfield v. Little, 1 Greenlf. 231.

“The reason,” says the learned commentator, “of the the distinction is, that it is not to be presumed that a public agent meant to bind himself individually for the-government; and the party who deals with him in that character is justly supposed to rely upon the good faith and undoubted ability of the government. But the agent in behalf of the public may still bind himself by an express engagement, and the distinction terminates in a question of evidence. The inquiry in all the cases is, to whom was the credit, in the contemplation of the parties, intended to be given.”

There was before the court below, as now before this court, nothing but the order itself, upon the face of which there certainly is nothing that looks like an intention, on the part of the defendant, to make himself personally liable ; nor is there even a promise to pay. The instrument is merely an order from one of the public agents of the limited government of that corporation on another, to pay to the bearer thereof the sum specified. Nor was it possible, by any just construction of the instrument, for the bearer, or any one else, to suppose that the defendant ever intended to be personally responsible for it. But if an action could be supposed to be maintainable in such a case, it surely would not be such as is resorted to in this case.

The district court did not err in its judgment, and it must be affirmed with costs.


text:
    Jones vs. Parish.
    1. Bailee •without reward. A bailee without reward, is liable only for gross negligence.
    • 2. Negligence. The question of gross negligence is one of fact for the jury, and not of law for the court, it being the duty of the court to explain to the jury what is gross negligence as understood in the law, and the province of the jury to find and apply the facts.
    3. Bailee, duty oe. If a bailee undertakes to carry an article from one place to another gratuitously, he is responsible only for gross negligence or a breach of good faith; but if he undertakes to perform gratuitously some service or duty in respect to it, and actually enters upon the execution of the business, he is bound to use a degree of care and attention adequate to its performance; and if, from the want of such care and attention, damage ensues to the other party, he will be liable to the extent of the injury.
    4. Degree oe care required. The plaintiff handed a sum of money to the defendant, requesting him to take it to a certain bank and pay it to the cashier, and have it credited upon his note in the bank, and the defendant took the money agreeing to do so; but he handed the money to the bank teller on the street, and it was not paid in at the bank or credited on the note, but was lost to the plaintiff. In an action to recover it, it was held, that whether the defendant was liable for the loss did not depend upon whether he was guilty of gross negligence, but whether he used such a degree of care and attention as was fairly adequate to the performance of his undertaking.
    5. Instructions. Where all the evidence given in the court below is embraced in the bill of exceptions, from which it appears that a jury would not, under proper instructions, be warranted in finding a different verdict, a new trial will not be granted, though the instructions which were given to the jury were erroneous.
    6. Error. An error which is not prejudicial to the party who complains of it, is no ground for reversal of a judgment.
    7. Hew trial — surprise. A new trial will not be granted to a party on the ground of surprise, merely because a witness called by his adversary, testifies to more facts that he believed or supposed he would.
    ERROR to the District Court for Iowa County.
    The case is fully stated in the opinion of the court, and was argued at the July term, 1844, when the chief justice was absent, and the court being unable to agree upon a decision, a re-argument was ordered, and the cause was again argued in 1845, all the judges being present.

      Parley Eaton and M. M. Jackson, for plaintiff in error:
    1. The defendant Jones was a gratuitous bailee, without reward, and was liable only for gross neglect equivalent to fraud. 1 Bac. Abr. 559 ; 1 Davis Abr. 704-712 ; 2 Kent, 559 ; 2 Black. Com. 453; 7 Cowen, 278; 11 Wend. 25; Foster r>. Essex Bank, 17 Mass. 479 ; Dormer v. Jenkins, 29 Eng. Com. L. 80; Jones on Bailment, 10-12: 5 Carr. & P. 242.
    2. The question whether Jones was guilty of gross negligence was a question of fact for the jury, and not of law for the court, and the instructions of the district court on this branch of the case are clearly erroneous. 3 Wend. 418, and cases cited under the'first point.
    3. The plaintiff could not recover without showing a demand and refusal. 9 Johns. 361.
    4. The court should have granted a new trial on the ground of surprise, as shown by the affidavit of Eaton.

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

The defendant in error commenced his action by attachment, against the plaintiff in error, in the district court of Iowa county. The declaration is in assumpsit for money had and received, and the parties went to trial on the general issue.

It was proven on the trial, that the plaintiff said to the defendant and others, that he had just been at the Bank of Mineral Point, and found it locked up or closed; that he had some money he wished to pay Into bank, but desired to leave Mineral Point that afternoon; that he then took from his pocket a roll of bank bills, and counted out $600, which, after being counted by the defendant, and others, the plaintiff handed to the defendant and said to him: “Jones, I want you to take this money (six hundred dollars) to the bank, and pay it or hand it to Knapp (who was then the cashier thereof), and have it indorsed on my note.” Jones, the defendant then took the money, and said he would do so. It was also proven, that the plaintiff called on the receivers of the bank, after its affairs had gone into their hands, and wanted to know whether they would allow him a credit of $600, on his note, then in their hands, which amount he alleged had been given to the defendant to pay into the bank; and that the receivers refused to allow such credit. Afterward the plaintiff paid the note in full. Porter Brace, a witness for defendant, proves that sometime in the summer of the year 1841, but what particular time in said summer he did not remember, being on his way to the banking-house, and near the same, the defendant handed him a package or roll of bank notes, remarking at the same time, “here is $600 from Parish.” The witness, then received the roll or package, as teller of said bank. He also states, that in the ordinary course of business, the amount of said roll or package, would have been credited to the plaintiff, or remained in the bank as a special deposit, subject to the plaintiff’s order. How it was disposed of witness does not remember, and cannot state, but has no doubt, that plaintiff had the full benefit of said roll or package in his settlement with Knapp, the cashier. To rebut the testimony-of said Brace, it was proven, that in September, 1841, and after the affairs of the bank had gone into the hands of the receivers, the plaintiff asked Brace, if Jones had paid any money for Mm, to be credited on Ms note in the bank, to which he replied that plaintiff had paid $10; to wMch the witness remarked to Brace, that he, Brace, was mistaken, that the $10 were paid by himself (the witness), and were credited on the note in his (witness’) presence; Brace then said, that the witness was right, that he paid the $10, and the defendant never paid Mm any money to be credited on plaintiff’s note in bank. Another witness testified, that after the affairs of the bank had gone into the hands of the receivers, Brace was asked by plaintiff, if the defendant had paid to him, on account of the indebtedness of the plaintiff to the bank, the sum of $600 ; to which said Brace answered, that he had not; but that if it had been paid it had been credited to plaintiff, as he in such matters never trusted any tMng to memory, but always put it down on paper.

It did not appear that there was any credit to the plaintiff on the books of the bank, or on the note of the plaintiff in the bank, of the sum of $600. The note was for the sum of $2,203.68.

The court charged the jury, as returned in the bill of exceptions, “that what amounts to gross negligence is a question of law for the court to decide;.that is, it is a question of law as to what particular facts amount to or constitute gross negligence; that it was only for the jury to inquire, whether from the testimony in the cause such facts exist. And if the jury believe from the testimony that it was the undertaking of the defendant to deliver the money deposited with Mm, by plaintiff, to one of the officers of the bank, in the bank, 'and to have it indorsed on the plaintiff’s note ; and if, instead of taking the money to the bank and having it so indorsed on said note, he (the defendant) handed it to Brace, the teller, on Ms way to the banking house, and there was no proof of its having reached the bank, and of its being credited on said note, then the defendant was guilty of gross negligence.”

The jury returned a verdict for the plaintiff, when the defendant moved the conrt for a new trial, which being overruled, judgment was rendered against the defendant.

The law is well settled, that a mere naked or gratuitous bailee, without reward, is only liable for gross negligence. And it is as well understood that the facts proven should be submitted to the jury, whose province it is to determine whether they amount to a case of gross negligence or not. It is the duty of the court to explain to the jury, what is gross negligence, as understood inlaw ; and the province of the jury to find and apply the facts.

It is understood to have been conceded at the argument, that the entire testimony given in the cause, is embraced in the bill of exceptions ; such being the case, this court is enabled to examine it, in connection with that part of the charge returned, and to decide satisfactorily upon its. applicability to the testimony, and whether injustice has been done the defendant.

The plaintiff” handed the money to the defendant, with a request to take it to the bank, and pay it or hand it to Knapp the cashier thereof, and have it indorsed on his (the plaintiff’s) note, which the defendant promised to do.

This is termed in law, a mandate, which is, where one undertakes, without compensation, to do some act for another in respect to the thing bailed. The labor and service are the principal objects of the parties, and the thing bailed is merely accessorial. If the mandatory merely undertakes to carry the article from one place to another, he is responsible only for gross neglect, or a breach of good faith. But if he undertakes to perform, gratuitously, some work or service relating to it, and actually enters upon the execution of the business, then he is bound to use a degree of diligence and attention suitable to the undertaking, and adequate to the performance of it. If he does it amiss, through the want of due care, by which damage ensues to the other party, an action will he for this misfeasance, and the party thus injured can recover to the extent of the injury. The defendant received this money for the special purpose of taking it to the bank, paying it to the cashier, and having it indorsed upon the note, which he did not do. It is conceded that he was competent to perform this service or duty, and worthy of being intrusted with the money and the business. Through his inattention to his duty, according to his promise and undertaking, the money was lost to the plaintiff. It now appears evident that this is not a case of a mere gratuitous bailment, without fee or reward, wherein the defendant would only be liable for gross negligence; but it is a bailment, coupled with the performance of a duty or service in connection with the thing bailed, which when entered upon, required him to use a degree of diligence and attention adequate to the performance of his undertaking. The law was mistaken in this particular by the court, in favor of the defendant. The question of gross negligence was not raised by the evidence. The subjects of inquiry were, whether the defendant received the money for the specific purpose stated, and then, whether he used a degree of diligence and attention adequate to the performance of his undertaking. If these points were found against the defendant, and that the money was lost to the plaintiff, then the defendant was liable. 2 Kent’s Com. 570; Story on Bailment, 104, 179, 180, 181; Fabens v. Mercantile Bank, 23 Pick. 330.

It is contended, that from the testimony of Brace it may be inferred that the money was not lost to the plaintiff, and that therefore, the cause should be submittted to another jury. It is certain that the money has never been credited to the plaintiff, on the books of the bank or on the note. If it was handed to Brace in the street, he has not accounted for it satisfactorily. It is the duty of the defendant to account for the money. The roll of notes is traced to him, and probably to his witness Brace, and there it rests. It is not to be pretended that the consideration of Brace’s testimony was withdrawn from the jury; or that the whole charge is returned. Prom the vague and uncertain testimony of Brace, coupled with his contradictory statements as proven by other witnesses, we cannot say that it is entitled to snch consideration as to induce this court to order a new trial, or to doubt the propriety of the verdict.

It is not every error in the ruling of a court that should require the reversal of a judgment. This court never reverses a judgment for errors clearly unattended with actual prejudice. Campbell v. Colhoun, 1 Penna. 140; Johnston v. Brackbill, id. 370. A new trial will be granted for the misdirection of the court, although the evidence may have warranted the verdict found, when the chances are equal that the verdict resulted from the misdirection. Wardell et al. v. Hughes & Moore, 3 Wend. 418. But this is not such a case. The jury would not be warranted in finding a verdict for the defendant, upon the evidence in this case.

These remarks dispose of the whole case, except the last reason for a new trial, which is as follows:

“Because the said defendant was taken by surprise, by the testimony of Abner Nichols, in this, that the defendant supposed all that would be proven by said Nichols was, that the defendant was to hand the money to one of the officers of the bank, and no more; and also by the introduction of witnesses to discredit and impeach the testimony of Brace, which, had the defendant have known, he would have been prepared with witnesses to rebut.” There is certainly nothing in this. A party must use due diligence in the preparation of his case. He may, if he chooses, ascertain what a witness is to prove, and should procure testimony in opposition. It frequently occurs that a witness states more facts than was expected, but it would not do to set aside a verdict for that reason. If such a rule were to prevail, few verdicts would stand. Proof to discredit might have been anticipated, and the defendant should have been prepared to meet it. He does not even give the court to understand the nature or extent of the evidence he could have introduced upon the subject, nor is it alleged that it was unknown to Mm at the trial, or that it is newly-discovered.

It is ordered that the judgment of the district court be affirmed.

Irvin, J., dissenting.


text:
    Baxter vs. Payne.
    1. Pleading—special contract. Where the plaintiff declares in assumpsit in the common counts, and it appears upon the trial that there is an open, still subsisting contract, in relation to the matter in question which the plaintiff has not performed, such contract must control, and he cannot recover on the common counts, but must declare specially on the contract.
    2. Same. No promise can be implied in relation to the subject-matter in controversy, where an express contract exists between the parties.
    3. Peremptory nonsuit. The district courts of the Territory have no power upon the trial of a cause to order a peremptory nonsuit.
    4. Depositions. The authority to take and use depositions being in derogation of the rules of the common law, it must appear that all the requisites of the statute have been complied with before a deposition can be used.
    5. Same. Where the law required that the deponent should be sworn “ to testify the truth, the whole truth, and nothing but the truth,” and the deposition stated in its commencement that the witness was “duly sworn,” and the certificate of the justice was that he was “ first sworn in the usual manner of taking depositions,” held, that the deposition and certificate did not show that the witness was properly sworn as required by the statute, and was not admissible.
    6. New trial—costs. Where a new trial is granted, because the verdict of the jury is contrary to evidence, it is proper to require the payment of costs as a condition of granting it, but not where it is granted, because the verdict is contrary to lam.

    ERROR to tke District Court for Oreen County.
    The facts in this case are sufficiently stated in the opimon of the court.

      J. H. Knowlton and A. Hyatt Smith, for plaintiff in error.
    1. The court erred in admitting the deposition of Pyncheon because the certificate of the justice did not show that he was sworn according to law, and the method of securing testimony by depositions being unknown to the common law, the statute must be strictly complied with, and if not complied with in every particular, the deposition must be rejected. 5 Mass. 219 ; 1 Peters, 351; Wright (Ohio), 632, 380 ; 5 Ohio, 329.
    2. The district court should have nonsuited the plaintiff, because in no event upon a sound construction of the evidence would the jury have been warranted in finding for the plaintiff. A special contract was proved which had not been performed by the plaintiff, and he could not, therefore, recover on the common counts. 1 Chitty’s Plead. 389 ; 6 Carr. & P. 15,'257; 5 Bos. & Pul. 61; 4 Wash. C. C. 97.
    3. The district court had no right to impose terms as a condition of granting a new trial. Territory v. Doty, ante. 22 Wend. 155 ; 8 id. 109-115; 12 Serg. and R. 275. Under the law as established by all the cases, the contract was special, and was not fully performed by the plaintiff, and the defendant sustained damages in consequence of non-performance, and the plaintiff ought not to recover.

      Edward V. WMton, for defendant in error:
    1. The certificate of the justice to Pyncheon’s deposition is sufficiently explicit. It shóws that the witness was sworn in the usual manner and that the defendant was present and made no objection.
    2. The motion for a nonsuit was rightly overruled ; whether there was a still-subsisting special contract which had not been performed by the plaintiff was a question of fact for the jury. Hyde r. Barker, ante.

    3. There is nothing to show that the new trial was granted because the verdict was contrary to law, but inasmuch as terms were imposed it will be presumed that it was granted in a case and for a cause where the court had a right to impose terms.
   Miller, J.

This is an action of assumpsit, brought by the defendant in error, against the plaintiff in error, and tried in the district court of Green county. The declaration consists of the common counts, for goods sold and delivered, to-wit: 40,881 feet of lumber.

It was proven that about 30,000 feet of lumber was delivered by plaintiff to defendant, at sundry times, through the spring and summer of 1841. In the course of the trial it was proven, that the plaintiff Payne, in the spring of 1841, in the presence of witness, and at sundry times, stated, that he had agreed to deliver to the defendant, by the month of July following, according to a bill of lumber which had been furnished by defendant, and which he exhibited to the witnesses, 40,000 feet of lumber at the sum or price of $25 per thousand, to be paid partly in territorial bonds, partly in provisions and partly in money. One witness said it was about 40,000 feet of lumber and to be paid $25 per thousand, in territorial bonds and other things.

After the close of the testimony, the counsel of defendant moved the court to enter a nonsuit, which was opposed by plaintiff’s counsel. The court overruled the the motion and submitted the cause to the jury, who returned a verdict for the plaftitiff. On motion of defendant, the court granted a new trial, upon condition of payment of the costs by the defendant, which condition not being complied with, the court rendered judgment for the plaintiff upon the verdict.

This is a special contract which the plaintiff was bound to perform, and to declare upon specially. A special count would be necessary to the assessment, by the jury of the damages, according to the terms and nature of the consideration or payment, set forth in the contract. It is apparent that the plaintiff cannot recover when there is a subsisting special contract between the parties in relation to the thing done, or the time or manner of payment; the law is well settled that the contract must control, and that the remedy is, in general, upon that and not upon the common counts in assumpsit. The parties are bound by their agreement, and there is no ground for implying a promise where there is an express contract.

Although the district court may have been folly satisfied that the plaintiff was not entitled to a verdict, yet a peremptory nonsuit could not be ordered against the will of the plaintiff. In the case of Hyde v. Barker, ante, this court decided that such a nonsuit could not be ordered. Marshall, C. J.,in the case of Elmore v. Grymes, 1 Peters, 469, remarks: That the court has had the case under consideration, and is of opinion that the circuit court had no authority to order a peremptory nonsuit, against the will of the plaintiff. He had a right by law, to a trial by jury, and to have had the case submitted to them. He might agree to a nonsuit; but if he did not so choose, the court could not compel him to submit to it.” In the case of Dewolf v. Rabaud, 1 Peters, 476, Mr. Justice Story, in delivering the opinion of the court says: That, “after the evidence for the plaintiff was closed, the defendant moved for a nonsuit, which motion was overruled. , This refusal, certainly, constitutes no ground for reversal in this court. A nonsuit may not be ordered by the court upon the application of the defendant; and cannot, as we have had occasion to decide at the present term (Elmore v. Grymes, 1 Pet. 469), be ordered, in any ease, without the consent and acquiescence of the plaintiff.” In Crane v. The Lessee of Morris, 6 Peters, 598, the same doctrine is reiterated, and declared not open for controversy.

The deposition of William Pyncheon was offered to be used in evidence, which was objected to by the defendant, for the reason that the justice does not certify how the oath was administered to the witness. The authority to take testimony in this manner, being in derogation of the rules of the common law, has always been construed strictly; and therefore it is necessary to establish that all the requisites of the law have been complied with before such testimony is admissible. Before a deposition should be allowed to be read in evidence, every requisite of the statute must have been substantially and fully complied with. This deposition was taken at the instance of the plaintiff, for the reason that the witness resided more than thirty miles from the place of trial, in pursuance of a written agreement between the parties, and in their presence. In the commencement and body of the deposition, it is stated that the witness “being duly sworn doth depose and say as followsThe certificate of the justice sets forth that the witness “was first sworn in the Usual manner of taking depositions.” The statute requires that the deponent shall be sworn to testify the truth, the whole truth, and nothing but the truth. There was error in overruling the objection to the reading of this deposition.

One of the reasons filed in support of the motion for a new trial is, that the verdict was contrary to the law and evidence in the cause. This is a common reason in all such motions, but in this case, it seems to have merits, and to have been relied upon. To require the payment of costs, in granting a new trial, for the reason that the verdict is contrary to evidence, is not improper. But when the verdict is contrary to law, the court cannot require the payment of the costs in granting a new trial. This point was decided by this court at its last term, in the case of The Territory v. Doty et at., ante, and is not now open for controversy. It is not necessary to examine this record further, as the case cannot be sustained.

For the reasons here given, the judgment of the district court must be reversed with costs.