author: Laerabee, J.

text:
    Luning v. The State.
    1. Evidence — experts.—The opinions of witnesses, which do not relate to matters of science, art or skill in some particular matter or department of business, are not admissible in evidence.
    1. Same. — An expert, who had heard all the evidence given in a cause, cannot be allowed to give an opinion as to the effect of such evidence, that question involving matters of credibility, etc., which would be usurping the prerogative of the jury; but he may be allowed to state his opinion on an hypothetical case-
    3. Argument — reading oe books as to matters oe science. — Medical or scientific works may be read by counsel to the jury, within the discretion of the court. The reading of them may be prohibited by the court, and they cannot be regarded as having any weight or authority, except as the opinions of learned and scientific men.
    4. Mill-dam law — nuisance.—The right given by the general mill-dam law, to erect a mill-dam and flow the lands of others, is no defense to an indictment, if the dam created a ¡public nuisance.
    (1 Chand. 178.)
    ERROR to the Circuit Court for Dodge County.
    The plaintiff in error was indicted in the Washington county circuit court for erecting and keeping up a mill-dam at or near the village of Ceclarburg, on a stream passing through that village, by means whereof the health of the citizens of that, village and vicinity was injured, and from which arose unpleasant and unwholesome vapors, and on account of which the inhabitants of that vicinity were made sick and diseased. A change of venue was afterwards had to Dodge county.
    On the trial, the counsel for the plaintiff in error took exceptions to the ruling of the judge, touching the admission and exclusion of testimony on either side, and the reading of standard medical books, and also as to the instructions of the judge to the jury; the material points of which exceptions are as follows:
    Various witnesses, sworn on the part of the state, and in support of the indictment, were asked by the prosecutor the following question: “ What effect has the overflowing of that land had upon the public health in that vicinity ? ”

      This question was objected to by the counsel of the plaintiff in error, upon the ground that the witnesses were not, and did not claim to be, scientific men, or possessed of any ¡seculiar skill to divine the effect produced upon the health of the inhabitants of the vicinity by the raising of the water and the flowing the land beyond the natural boundary of the stream ; or, in other words, were not, and did not claim to be, experts.

    The judge overruled the objections, and allowed the witnesses to give their opinions, upon the principle that they were residents in the vicinity, and had previously testified as to the health of the resident inhabitants, both before and after the erection of the dam, and had stated that an offensive effluvia was produced by the spreading of,the water over a much larger tract of land than was covered by the stream in its natural state.
    On the defense, the plaintiff in error introduced Dr. Whitney, a practicing physician, as a witness, who had heard all the evidence on the part of the state, touching the siclmess that was claimed to bo the result of the raising the dam. The following question was propounded to him by the counsel for the plaintiff in error: “ You state you have heard all the evidence given on this trial; now, from that evidence, did tuning’s mill pond, in your opinion, cause the sickness spoken of by the witnesses ? ”
    This question was objected to by the counsel for the state, on the ground that if the witness answered the question, it could only amount to Ms own construction of the facts testified to by others, and winch would devolve upon Mm the necessity of reconciling the conflicting evidence given by others, or of placing upon it a construction suited to his own views and conception of such evidence. The judge sustained the objection, and the counsel for the plaintiff in error excepted.
    The counsel of the plaintiff m error, on the trial, offered to ■read to the juiy standard medical works as evidence, or by way of instruction to the jury, as to the engendering, presence and effect of malaria upon the health of those who live in the vicinity.
    The counsel for the state objected to the reading of such books, and the judge sustained the objection.
    The counsel for the plaintiff in error requested the judge to charge the jury, that the mill-dam in question, having been erected under and in virtue of the provisions of the statute of the state, providing for and regulating the construction of such works, no indictment could be sustained in the name of the state, for a nuisance which might be created thereby, until the court should have pronounced such law unconstitutional. The judge refused so to charge the jury, and the counsel took an exception thereto.
    A motion in arrest of judgment was made by the counsel for the plaintiff in error, on the argument before this court, which was based upon the face of the indictment brought up by the writ of error. The indictment did not, it was claimed, purport to be in the name of the state of Wisconsin. That question will be found to have been disposed of by the court in the case of the State v. Delue, ante.

    The jury found the plaintiff in error guilty.

      Holliday, for plaintiff in error,
    insisted and argued that a witness, not an expert, may testify to facts within bis knowledge, but cannot give an opinion where art and science, which he does not profess to possess, are required (4 Cow. 855 ; 17 Wend. 136); that a professional or scientific witness may give an opinion upon the facts testified to by other witnesses, who are not professional or scientific in the matters to which such facts relate (Roscoe’s Crim. Ev. 180 ; 1 Greenl. Ev., § 440 ; 5 1-Till, 603); that the right to erect a mill-dam, acquired under the statute of this state while such law is in force, will protect the party raising such dam, against an indictment on the ground that it is a nuisance; that it is the right of counsel to read medical or scientific books to the jury, on the trial of causes in which skill and science are involved (Beck’s Medical Jurisprudence, 659 ; Grey’s id. 11); that the counsel, in summing up his case, has the right to read from'any book he pleases, and adopt what he reads as a part of his argument.

      J. S. Brown, Attorney-General, and A. D. Smith, on the part of the state, contended,
    that when a witness, not an expert, gives evidence by stating facts, he may also give his opinion upon such facts (Roscoe’s Ev. 179 ; 1 Cowen & Hill’s Notes, 759, note 529; Phillip’s Ev., by Cowen & Hill, 290); that there is a distinction between the testimony of an expert, who gives his opinion upon facts stated by a witness not an expert, and that of an expert who assumes to testify upon a case hypothetically stated to him (1 Greenl. Ev., § 440 ; 1 Vt. 497 ; 3 Dana, 382); that the evidence given by the witness of the nauseous scum, collected upon the surface of the water in the mill-pond — the pungent stench arising therefrom — the former-good health of the inhabitants — and, since the erection, the universal bad health of all who live in the vicinity, enables a witness to give his opinion, upon the facts he has stated, as to the effect produced upon health; that the reading of scientific books in evidence, which rest merely upon the reputation of the author, are not admissible, bécause they have no sanction hr law to make them competent. The author of any or all of such books, might, as an expert, give oral evidence; and other witnesses, experts also, might do the same, adopting as their own, the reasoning and opinions of authors, though not present; that counsel might argue to the jury in accordance with what had been written by others, and the jury might adopt the opinions of the counsel, which were the mere reflections of the thoughts of the author, but the book cannot be read to the jury as matter of evidence.
   Laerabee, J.

This case is brought to this court by a writ of error to the Dodge county circuit court. The plaintiff in error was indicted tor erecting and maintaining a mill-dam, which caused the water to overflow a large tract of heavily timbered land, in the immediate vicinity of the village of Cedarburg, in "Washington county, and which was alleged created unpleasant and unwholesome vapors and sickness to the inhabitants of that village. Many witnesses residing in the village were called by the counsel for the state to prove the situation of the mill-pond, the effect of the stagnant water upon standing and fallen timber, and the prevalence of intermittent fevers to an extraordinary extent subsequent to the ere'ction of the dam.

After stating the facts, the question was asked, and the reply of the witnesses permitted to go to the jury: “What effect has the overflowing of that land had upon the public health hr that vicinity ? ” This is tire first assignment of error, and on the ground that the opinions of these witnesses, not being experts, was incompetent as testimony. The general rule that the opinions of witnesses are confined to men of science, ait or skill in some particular branch of business, is well settled, and was admitted by the counsel for both parties.

But it was contended by the counsel seeking to introduce this as testimony, that the witnesses, having detailed the facts, were propex’ly allowed to state their opinion in connection with them; that they were, from their position and means of information, experts for that particular pxupose. They wore inhabitants of the village; had lived there before the erection of the dam, and afterwards; had observed the general good health before, and the universal sickness after- — there being not enough in health to minister to the necessities of the sick; that the stench from the dam was intolerable, compelling the closing of the doors and windows, and-the resort to other expedients to remove its influence. It was upon this groirnd that I considered this an exception to the general rale, and. permitted the evidence to go to the jury. But I am satisfied, upon further examination, and concur in opinion with the other members of the court, that the evidence introduced was not within the general rule; and though, perhaps, hi this case operating unreasonably, yet tbe rule should have been strictly applied. For this error a new trial must be had.

Auother ground of error assigned is, that the witness Whitney, being a medical man, was not allowed to answer the following question: “You state you heard all the evidence given on this trial; now, from that evidence, did laming’s mill-pond, in your opinion, cause the sickness spoken of by the witnesses ? In tins the ruling was correct. The answer to this question would have been an opinion as to the general merits of the cause, the weighing of conflicting testimony, and swearing to a legal conclusion ; in fact, usurping the province of the juiy. The facts, as given in evidence, might have been stated to the witness, and then his opinion upon them would have been competent; or he might have given his opinion upon a similar case, hypothetically stated.

The next ground of error to be noticed is the refusal to permit the counsel for the defendant below to read from medical books. This is a matter generally withiu the discretion of the court, and therefore not the subject of a wait of error. In many cases, no doubt, it would be proper to allow books of science to be read, though generally such a practice would lead to evil results. But certainly counsel have no right to read indiscriminately what books they may choose, as is contended by the counsel for the plaintiff in error. The latitude to be given to counsel in argument is always under the control and in the discretion of tire court.

The other assignments of error to be noticed are in the charge to the jury, and upon the motion in arrest of judgment. The counsel for the defendant below asked the judge to charge that, as the dam in question was erected under the act of the territorial assembly authorizing the construction of mill-da,ms across streams not navigable, no indictment could be sustained by the state for a public nuisance created by such dam. Though that act has been decided by this court, in the case of Newcomb v. Smith, ante, to be valid, yet it cannot be con-ceivecl that by erecting a dam in accordance with its provisions, license is thereby given to create and continue a nuisance. Such a construction of the power given in that act, to owners of mill property, would be utterly inconsistent with the right of every citizen to call in the authority of the state' for protection against the unlawful encroachments of others.

How far soever the privileges given to null owners may be held to extend, most certainly no such immunity as is here claimed exists. The right is given to any person to build a dam, and flow the water upon the lands of others; but if he thereby creates a public nuisance, he is as liable to an indictment in that regard as if no such statute were in existence. 1 Marsh. (Ky.) 535; Taylor v. Major, id. 552.

This is the only point hi the charge given to the jury that it is necessaiy to examine, and this, as well as the rest of the charge' was correct. One of the grounds on which the motion in arrest was founded, is, that it does not appear that the indictment was found in the name and by the authority of the state. This point is settled by this court in the case of the State v. Delue, ante.

Judgment reversed.


source: Caselaw Access Project

author: Jackson, J.

license: Public Domain

text:
    Roach v. Moulton.
    1. Process. — A writ of error is fatally defective, under the territorial statute, which does not run in the name of the United States. But see lllsley v. Harris, 10 Wis. 85.
    2. Replevin- — -affidavit.—The better opinion is, that in an action of replevin before a justice of the peace, the value of the property -should be stated in the affidavit for the writ, iii order to show that the case is within the jurisdiction of a justice of the peace.
    (1 Ohand. 187.)

      ERROR to the District Court for loiva Comity.
    This was an action of replevin brought by the defendant hi error before a justice of Iowa county, who rendered a judgment in favor of the plaintiff below, the defendant in error. A certiorari was brought to the district court of Iowa county, and that court affirmed the judgment of the justice.
    Various errors were assigned by the plaintiff in error in this court, some of which were taken jn the court below, one of which was, that the process issued by the justice did not run in the name of the United States; and that unless it did no jurisdiction was obtained over the subject-matter of the suit; another of which was, that n'o jurisdiction was acquired by the justice, because the affidavit on which the original process issued did not state the value of the property for which the action was brought.

      O. W. LaMn, for the plaintiff’ in error,
    insisted that the justice had acquired no jurisdiction to issue the first process: 1. Because there was no value stated in the affidavit of the property sought to be - replevied. 2. That the process was. not served as directed by statute.

      J. H. Knowlton, for the defendant in error,
    argued as to the first objection to the jurisdiction of the justice, that by the provisions of the act in regard to the issue of process, under the article regulating the action of replevin, it did not require that the process should issue in the name of the United States. Rev. Stat. § 334.
    To the second objection he referred to the statute (page 334,) and claimed that there was no requirement that the value of the property sought to be replevied should be specified in the affidavit upon which the writ issued; and he also insisted that where, as in this case, intermediate questions had arisen before the justice, in the joining of the issue, and which were decided and overruled by the justice, and the parties joined an issue and went to trial on the merits, a certiorari would not lie to correct the errors in decisions on the questions arising intermediately; and to this point he cited 6 Hill, 621; 1 Denio, 222.
   Jackson, J.

This was an action of replevin brought by the defendant in error against the plaintiff in error, before Thomas James, Esq., a justice of the peace of Iowa county, to recover possession of a horse. The action was tried before the justice, and a judgment rendered by Mm in favor of the defendant in error; whereupon the said plaintiff in error sued out Ms writ of certiorari to the Iowa county district court, where the judgment of the said justice James was affirmed. To reverse the judgment of the district court, the plaintiff in error has prosecuted a writ of error to this court. There are several grounds of error assigned; but as we are entirely satisfied that the second ground of error assigned is well taken, and should cause a reversal of the judgment, we do not deem it necessary to advert particularly to the other grounds of objection taken to the proceedings. The second error alleged is, that “ the writ of replevin is clearly defective in this, that it does not rim m the name of the Umted States, wMch is an absolute requisition of the statute.”

The provision of the statute here referred to, is that contained m the 7th section of the 3d article of the “ Act concerning justices of the peace,” on page 323, wMch is in the following words : “Allprocess issued by justices of the peace shall ran in the name of the Umted States, be dated on the day it is issued, and shall be signed by the justice granting the same, and be directed to the sheriff or any constable of the proper county.”

This is an imperative provision of the statute, designed to have universal application to “ all process,” issued by justices of the peace; and the statutory form of a writ of replevin, given in a subsequent portion of the “ Act concerning justices of the peace,” in the article “ regulating the action of replevin,” on page 334 of the Revised Statutes, cannot reasonably be construed so as to render inoperative the express provision referred to. The form of the writ, therefore, must be controlled by and conform to this provision.

As to the question of jurisdiction raised, without undertaking to decide it in this case, we are clearly of opinion that in an action of replevin, it is much the safer practice to allege the value of the property in the affidavit, which is the foundation of the proceedings, and thus affirmatively show in the first instance, that the justice has jurisdiction.

The judgment of the court below is reversed.


author: Stow, C. J.

text:
    Sanderson v. Olmsted.
    1. PRESUMPTION OB PAYMENT — STATUTE OB' LIMITATIONS. — The statute, providing for the limitation of the time for bringing actions, does not repeal or abrogate the common-law presumption of payment from lapse of time. The statute was passed merely in aid of defenses to stale demands.
    2. Same — residence within the jurisdiction. — It is not necessary that a defendant should haye had a residence within the state for twenty years, in order to avail himself of the common-law presumption of payment, as a defense or bar to claims.made against him.
    (1 Chcmd. 190.)
    ERROR to the Circuit Court for Milwaukee County.
    This was an action of assumpsit upon a promissory note. Plea — general issue.
    The cause was tried and a verdict found for the defendant in error for the amount of the note in question.
    The defense set up on the trial of the cause was, that the note in question was a stale demand, and that by the presumption of the common law it had been paid. To this was interposed the statutes of Wisconsin as to the limitation of actions, which, it was assumed, required a residence of the defendant below, of twenty years in the state before suit in order to constitute a defense. No evidence was shown that the note was or was not paid, and the presumption of law was relied upon, that by lapse of time it was presumed to have been paid. The judge charged the juiy in effect, that the note in this case being a witnessed note, would not be barred if sued in this state, unless the defendant had resided here for twenty years, the note having been executed out of the state, and not having resided here for that period of time; that the statute of this state overruled this common-law presumption of payment; and that in the absence of proof of payment it was the duty of the juiy, in law, to find a verdict for the plaintiff below.

      A. D. Smith, for the plaintiff in error,
    insisted that, after the lapse of twenty years, a note js presumed to have been paid; that although the statute of Wisconsin did not bar the suit, yet the common-law presumption of payment, arising from the staleness. of the demand, was available as a defense, and should in this case prevail; and to this point reference was made to the Rev. Stat. 261; 2 Starkie on Ev. 682, 683 ; 1 Greenl. onEv. 431; 5 Esp. 52 ; 7 Term, 270 ; 4 Wend. 91; that, by the current authorities, lapse of time raised a presumption of payment, which, if not repelled by proof, the jury should find the note paid, and render a verdict accordingly. 8 Pick. 187 ; 1 Dali. 85 ; 2 Cowen & Hill’s Notes, 323-327.

      J. Downer, on the part of the defendant in error,
    argued that no presumption of payment arose where there was a statute of limitations, and under which statute the demand was not barred (1 Dowl. & Ryl. 16 ; Cowper, 214) ; and that, so far had this doctrine been carried, when a period of time is excepted from the statute of limitations, thereby enlarging the time for barring the demand, it had been held that so much time as was thus excepted, must elapse in addition to the period of twenty years before payment would in law be presumed to have been made. 2 Cranch, 184 ; 10 Johns. 414 j 16 id. 214 ; Cowen & Hill’s Notes, 218, 219, and authorities there cited.
   Stow, C. J.

This was an action of assumpsit, brought in the late district court of Milwaukee county by the defendant in error, on a promissory note. The cause was tiled at the last term of the Milwaukee county circuit court. The facts in the case as presented in the bill of exceptions, and on which the decision depends are, that the note in question was made and became due in the state of New York, in 1817 ; that it was attested by a subscribing witness, and that the maker has resided within our jurisdiction since 1835.

It was conceded on the argument that the defendant below, having resided here less than twenty years, and this being an attested note, which is not barred- by the statute in less than that time, the statute of limitations could not be pleaded to it. But it is contended by the defendant that, though the note is not barred by the statute, it is by the common law presumed to be paid, and that he is entitled to the benefit of this presumption under the general issue. On the other hand, it is insisted by the plaintiff, the defendant in error, that oui- statute of limitations, having adopted the common-law period of presumed payment as the term beyond which an action on a bond, attested note, etc., shall not be prosecuted, has in effect done away the common-law rule on the subject. This argument I understand to mean that, under the provisions of our statute, no lapse of time can avail the party as a defense, unless he pleads the statute in bar. I do not so construe the statute. It was undoubtedly passed to aid defenses to stale demands, and was not designed, as I conceive, otherwise to affect the rule of the common law than as famishing the party an additional method of availing himself of it. It then becomes necessary to inquire whether, to entitle a party to the protection of the common-law' presumption of payment after twenty years, he must have resided for all that period within our jurisdiction. This is a question of great importance, and not free from difficulty. It bas been decided differently by different tribunals, and differently by the same tribunal at different times. The weight of precedent (for binding authority there is none) would seem to require the entire joeriod to have been passed within the jurisdiction in which the action is brought. But here the question is an open one, and one which we are at liberty to settle as we deem most expedient for the purposes of justice; and we think that public policy and private security alike will be best promoted by applying the salutary oblivion of the common law to all ancient demands, no matter where contracted, or where the parties have resided. No good reason is perceived why, while time’s scythe is destroying in all regions alike the proofs of business transactions, his hour-glass should not in an equal extent record the period when those proofs become unnecessary. A different rule would be likely to be attended with great individual injustice and much public inconvenience. Once let it be known that the stale and outlawed demands of other states and countries wero,'prima fade enforceable against our citizens until after a residence here of twenty years, all would be exposed to vexatious and harassing suits, and many to min; while our combs would soon be flooded with prosecutions of musiy claims which none of the tribunals of our sister states or of Europe would entertain. On the other hand, the rale we now establish can work no practical inconvenience or injustice. It does not bar an action, and at the outside only admits a presumption of payment, which presumption, in almost all cases where actual payment has not been made, can be easily repelled. Entertaining these views, I think the circuit court erred in not leaving the question of presumed payment to the jury, and that the judgment of the court below should be reversed.

Judgment reversed.


author: Larrabee, J.

text:
    Defrance et. al. v. Hazen.
    1. Evidence — jtrial—practice.—It knot necessary for a party defendant, in offering- Ms proof, to disclose or state Ms whole defense. • It k enough that the proof offered tends to establish a defense.
    2. Same. — It is only where the proof offered has no seeming relevancy to the issue, that a party k bound to dkclose particularly the ground of its materiality.
    (1 Ghana. 195.)
    ERROR to the Circuit Court for Orawford County.
    This was an action originally instituted before a justice of Crawford county, on a promissory note, as follows:
    “ $20.00. Range Two, west, Town Fourteen, )

    NORTH, December 21, 1846. j
    On or before the sixteenth day of May, 1847, we, or either of us, promise to pay J. 8. T. Hazen, or bearer, the sum of •twenty dollars for standing pine, at the forks of the creek, and up the creek of Kickapoo, at Louise’s skaniy.
    James M. Deerance,
    Hugh H. Moore.”
    To a declaration upon the foregoing note the defendants pleaded the general issue, and that the same was given without consideration, On a trial had upon this issue, the justice rendered a judgment for the plaintiff for twenty dollars and the costs.
    From this judgment the defendants, in the suit before the justice, appealed to the circuit court for Crawford county.
    On the trial of the appeal the defendant in error (the plaintiff below) introduced and proved the execution of the note, and rested.
    The counsel for the plaintiffs in error then introduced a witness to prove that the land on which the pine trees, constituting the consideration for which the said note was given, was, at the time of the sale thereof, and of the giving the said note, the property of the United States,- and unsurveycd; and that the said plaintiff never bad any title to tbe land on which the trees were growing, and which he assumed to sell.
    The admission of this evidence was objected to by the plaintiff below, on the ground that, by the note and the terms thereof, the defendants below were precluded from showing title out of their vendor, the plaintiff below.
    The circuit court sustained the objection and rejected the evidence offered, and a judgment was ordered to be entered in favor of the plaintiff below, against the defendant below, for the sum of twenty dollars and costs.
    At the same term, the defendants below made a motion for a new trial on the ground,
    1. That the judge had erred in excluding the evidence offered by the defendants below, showing that the plaintiff had no title to the land on which the pine timber was growing; and,
    2. That, inasmuch as notice had been given by the defendants below, to the plaintiff below, to produce on the trial the evidence of title in himself, and he having failed to do so, it was competent for the defendants below to show title out of him.
    3. That, under the state of the proceedings, it was incumbent on the plaintiff to show title to the land in himself, in order to maintain his action.
    4. That the said judgment was erroneous, inasmuch as it affirmed the judgment of a justice who had no jurisdiction over a case involving the title to real estate.
    The circuit court overruled the motion for a new trial.

      J. T. Mills, for the plaintiffs in error,
    after reading the exceptions taken by the defendant in error, and making a statement of the case, was stopped by the court upon an intimation that he need not proceed further.

      Knawlton & Dunn, for the defendant in error,
    contended that the evidence offered on the trial at the circuit, to impeach the consideration of the note, was incompetent to authorize its admission ; and that the exception taken was not founded upon any sufficient specific fact proved, or offered to be proved, of sufficiently substantial matter upon which to found such objection. To this point they cited Sugden on Vendors ; 21 Wend. 131 ; 24 id. 102.
    They also asserted and argued, that the purchaser of personal or real property could not defend against an action for the recovery of the purchase money, unless he should show a recovery against himself by the real owner ; and to this pomt cited 4 Ohio, 39 ; 1 Wend. 185 ; 19 Johns. 77 ; Graham on New Trials, 257.
   Larrabee, J.

The witness offered by the defendants should have been allowed to testify, as the facts proposed to be shown would have tended to prove a want of consideration. It is not necessary for a party to disclose his whole defense, in order to entitle him to the admission of evidence having a tendency to prove it.

It is only in cases where the proposed evidence has no apparent relevancy, that it is necessary tosíate the whole ground upon which it is based.

Judgment reversed.


author: Hubbell, J.

text:
    Marsh v. Edgerton.
    1. Equity — PRocbhdiugs at iaw. — Courts of equity interfere with great reluctance to restrain proceedings at law,' partieulary after judgment.
    2. Samb. — Where the matters complained of were known to the party, and were admissible as a defense at law, equity will not interfere.
    3. Where it is not made to appear that the complainant’s defense was inadmissible at law, nor that he failed to present it on account of mistake, ignorance of its existence, fraud or surprise, nor that the evidence now relied on was newly dicovered, equity will not afford relief.

      4. Same. — Where no attempt has been made to obtain proof in defense of a suit at law, and reasonable diligence has not been exercised, equity-will not interfere, unless the proof relied on was inadmissible at law. Judgments at law, when fairly obtained, should not be disturbed but for stringent reasons and in pursuance of well-settled rules.
    (1 Ghancl. 198.)
    APPEAL from the decree of the District Court for Dane County.
    The complainant in this suit obtained a judgment against Marsh, in the district court for Dane county, on two promissory notes. Execution was issued on the judgment, and before it was executed Marsh filed his bill, alleging fraud in the matter for which the notes, on which the judgment was obtained, were given. He also alleged partial failure of the consideration for which the notes were obtained. The bill prayed for an injunction, perpetually staying the execution issued on the judgment at law. A general demurrer was put,' and on the hearing the demurrer was sustained and the bill dismissed. Erom such dismissal, AfarsA appealed to this court.

      Sami Crawford, for appellant.

      A. L. Collins, for appellees.
   Hubbell, J.

This case came here by appeal from the district court of Dane county. Ddgertm obtained a judgment in that court against Marsh, on two promissory notes given in 1836. After execution issued, Marsh filed a bill on the equity side of the court, alleging fraud in the original sale, and a part failure of the consideration of .the notes, and praying a perpetual injimction against the judgment. The bill was dismissed on general demurrer.

Of late years, courts of equity have interfered, with great reluctance to exercise the power rightly vested in them, of restraining proceedings at law, particularly after judgment. Formerly, such interference was was more frequent. 2 Story’s Eq., § 887.

Applications of this sort, after verdict, are in the nature of motions for new trials; and the equitable indulgence, now granted by courts of law, in all cases where injustice would be likely to be done by the judgment, takes away the necessity for bills in chancery. Jeremy’s Eq. 65 ; 6 Johns. Ch. 477.

For this reason, unless it appears that the court of law has ruled out a defense, or that the case is one in which such court could grant no adequate remedy, relief in equity is denied.

I see no reason why the complainant could not have shown the fraud alleged in his bill, on the trial below; nor why the alleged partial failure of the consideration of his notes might not have been recouped, and the plaintiff’s damages reduced to that extent, since the sale of the lands and the giving of the notes for part of the purchase money was all one transaction. Van Epps v. Harrison, 5 Hill, 63. The prayer for discovery rests on the same ground with that for relief.

It was the defendant’s right to have the plaintiff sworn as a witness on the trial, and if he refused, then to be sworn himself.

He had thus a full and very simple means of presenting in evidence the very facts now set up in his bill. Stat. of Wisconsin, 247. Or, if he feared to bring his adversary forward as a witness at that time, when he might not be prepared to meet and rebut any misstatement he might make, the defendant could have filed his bill, praying for a discovery in aid of his defense at law, and could have had all the proceedings stayed until he had thus searched the plaintiff’s conscience, as fully °as it can be done by the present proceeding. Drury on Injunctions, 65 (34 Law Lib. 61).

It is not alleged that the complainant’s defense was offered and overruled in the court below, nor that he failed to present it, by reason of mistake, ignorance, fraud, or surprise; nor that the evidence relied on is newly discovered. His failure to make out a defense at law, if he had one, must be imputed solely to his want of diligence, or to his negligence, and equity affords no relief to such parties, especially after trial and judgment. The celebrated case of Bateman v. Willoe, 1 Sch. & Lef. 201, which has long been a leading authority, both in England and America, went no further. In that case the plaintiff filed his bill to restrain a solicitor, whom he had employed, from proceeding on a verdict for the amount of a bill of costs. It presented strong claims for relief, inasmuch as it was the case of a client, who may have been presumed ignorant of his legal rights, praying for the consideration in equity of a defense which he might have offered, but which he failed to present on the trial at law.

Lord Redesdale refused the injunction, saying: “ The inattention of parties in a court of law can scarcely be made a subject for the interference of a court of equity.” This must be regarded as the settled and sound doctrine on the subject, and applying it to the present case, we must say to the complainant : “ Admitting your bill to be true; allowing your defense to the notes such as you have represented, still you have slept on your rights, and your relief is barred. There must be a time when litigation ceases, and rights of property are at rest. Judgments at law, when legally and fairly obtained, should not be disturbed, unless for stringent reasons, and in pursuance of settled rules.”

This much I have said, on the assumption that the complainant’s bill makes out a good case. But, looking at all the facts set forth in it, I am constrained to think it fails to show a good defense, either in law or equity. He was undoubtedly imposed upon, as thousands of others were, by the glowing prospect of growing rich with the rapid growth of the country. He believed cities and villages would spring up in reality, as they had done on plates and maps, lithographed by speculators to foreshadow their advantages. But very probably the plaintiff below may have been as credulous as the defendant, because delusion was a disease of the times. It infected sellers as well as buyers, and pervaded every class of the community, and almost every section of the country. The towns of “ Brooklyn ” and “ Albion ” were not the only cities in embryo, wherein honest but misguided speculators buried in a day the substantial earnings of years. But they vanished with a change of times, which nobody could prevent or foresee, and with them passed the visions and delusions of their owners. It is too late now to inquire who was the deceived and who the deceiver; who, rising above-the mania of the times, was the cold and calculating swindler, and who, forgetting the wholesome adage, caveat enyptor, became the willing victim.

I think the court below was right in dismissing the bill on every ground.

The decree is affirmed, with costs and - per cent.

Whiton, J., having been of counsel in the suit at law, did not sit in this case.


author: WhitoN, J.

text:
    Nichols et al. v. Webster.
    1. Chattel mortgage. — The mortgagee of chattels, after the mortgage falls due, is invested with the entire right in the chattels, and may reduce the same to possession; and he is not bound to make a sale in order to perfect his title at law.
    2. Same — trespass.—Where, after default, the mortgagor brings an action against the moi'tgagee, for reducing the property to possession, it can not be maintained, all the right remaining in the mortgagor being a mere equity of redemption.

    3. Pleading — evidence.—In an action against a mortgagee, for entering upon the mortgagor’s premises and taking and carrying away the mortgaged chattels, the defendant, under the plea of the general issue, give the mortgage in evidence, and show that default of payment had been made at the time of the taking, which will be a complete defense to the action.
    (1 Ghand. 203.)
    ERROR to tbe Circuit Court for Racine County.
    This was an action of trespass, brought by the defendant in error against the plaintiffs in error, for taking certain goods and chattels which had been mortgaged by the defendant in error to the plaintiffs in error. At the expiration of the time fixed for the payment of the sum seemed by the mortgage, the plaintiffs in error, without the consent of the defendant in error, took the goods and chattels mortgaged into then- possession, and upon this state of the case . the action was brought against the plaintiffs in error, who pleaded to the declaration the general issue.
    On the trial of the cause at the circuit, the plaintiffs in error offered in evidence the mortgage held by them upon the goods and chattels in question, to which an objection was raised by the defendant in error. The presiding judge sustained the objection, and the evidence was rejected upon the ground that, by a stipulation of the mortgage, the mortgagee should pay over to the mortgagor, the plaintiff below, the proceeds arising from the sale of the mortgaged properly, after paying the mortgage debt and the costs of sale.
    It was also objected by the plaintiff below, on the trial, that the defendants below could not, under the plea of the general issue, introduce evidence of their claim of title to the property; but this ruling had in view the fact before stated, that the plaintiff below had a residuary interest in the mortgaged property, notwithstanding the forfeiture by the expiration of the time of payment of the mortgage.
    The plaintiffs in error excepted to the determination and ruling of the judge, in both the particulars before mentioned, and the cause yame to this court principally upon those exceptions. The jury, under the instruction of the judge, found a verdict for the plaintiff below, upon which judgment was rendered.

      F. 8. Lovell, for plaintiffs in error,
    insisted, that the interest of the mortgagees, the plaintiffs in error, became absolute in the mortgaged property, and forfeited to them on the mortgage falling due, and to this point cited 8 Johns. 96 ; 7 Cow. 290; 9 Wend. 80; 6 Shep. 356 ; 12 Wend. 61; 1 Hill, 473 ; 2 Denio, 170 ; 3 id. 33 ; 9 Wend. 258 ; 2 Wheel. Ch. Dig. 238.

      It was also insisted, on the same side, that the plea of the general issue was an appropriate plea where the projoerty of the thing in dispute was in the defendant, and to that point cited 1 Chitty’s Plead. 491, 292, 293 ; 2 Saund. Plead. & Ev. 856 ; 2 GreenL § 625 ; and that the party could show property in himself under that plea, he cited 2 Phill. Ev. 192.

      Ohatfidd & A. D. Smith, on the part of the defendant in error,
    claimed that, admitting the property mortgaged to have become absolute in the mortgagee, yet the absolute claim of the mortgagee could not be shown under the plea of general issue; that a party having the possession of personal property is prima facie the owner, and that the assertion of a claim upon such property by a mortgagee to whom the property has become forfeited, cannot be shown under the general issue, and to this point cited 3 Chitty’s Prac. 728; Arch. Nisi Prius, 363 ; 2 Car. & P. 232; 25 Eng. C. L. 372 ; 2 Camp. 378, 500 ; Saund. Plead. & Ev. 856 ; Graham’s Prac. 236; 1 Caines, 253; 11 Johns. 32; 7 Cow. 35; 10 Wend. 110; that the first count of the declaration was in trespass, for breaking and entering the plaintiff’s door, and the second, quare clausum fregit, with an allegation of taking and carrying away the goods in question, etc; that in order to justify an entry into the store of the plaintiff below, it was necessary to plead specially a; justification, and that such justification could not be given in evidence under the general issue, and to this point cited 6 Johns. 5.

       A mortgagee of personal property, who sells the same alter default, under a power of sale contained in the mortgage, is accountable to the mortgagor for the surplus, after the debt, costs and expenses are paid. Flanders v. Thomas, 12 Wis. 410.

   WhitoN, J.

The question in this case arises upon my decision in ruling out the chattel mortgage of the goods alleged to have been taken by the plaintiffs in error, and for the taking of which the suit is brought. The plea- was the general issue, and when the mortgage was offered in evidence by the plaintiffs in error, the defendants below, I was of opinion that the plaintiff below, the mortgagor, had a legal interest remaining in the goods mortgaged, after a breach of the condition, according to the stipulation contained in tbe mortgage; tbat Nichols, the mortgagee, should pay over to Webster, the mortgagor, the proceeds arising from the sale of the mortgaged goods, after paying the mortgage debt, expenses of sale, etc., and consequently rejected the evidence. But I am now of the opinion that the mortgagee was not obliged to foreclose the mortgage by a sale of the goods, and that his right to them was not at all affected by the clause of the moitgage in question. It follows, then, that when the condition of the mortgage was broken, by the neglect of Webster to pay the money at the time stipulated, the goods became the property of Nichols, the mortgagee, Webster, the mortgagor, having no interest in them, except an equity of redemption. The cases cited by the counsel for the plaintiffs in error clearly maintain this position, of the correctness of which there was indeed no doubt, if the mortgage was not affected by the clause above alluded to. It is clear, that in actions of trespass the defendant may show, under the plea of the general issue, that he is the owner of the property. 2 Green! Ev. 625. It follows, then, that the mortgage in question (showing, as it did, that the condition had been broken when the goods were taken, and consequently that the mortgagee, the defendant below, was the absolute owner in law of the property) should have been received and read in evidence to the jury.

It was rejected, and for that reason the judgment which was rendered against the defendants must be reversed.

Judgment of the circuit court reversed, with costs.


text:
    Swartzer v. Gillett.
    Equity — asbebmeht.—The fixed and -well-established rule of courts of equity is, that they will n ot lend their aid to enforce the execution of an - agreement made in defiance or contravention of law, nor will they interfere to rescind or annul it, if already executed. In such cases a court of equity leaves offending parties where it finds them, either party having a light to resist and avoid such agreement, if not executed.
    (1 Ghana. 207.)
    APPEAL from the Circuit Court for Fond du Lac County.
    This bill was filed in the circuit court for the county of Fond du Lae by the appellant, to procure to be annulled a conveyance of real estate by him to the appellee, upon the ground that the conveyance was made to compound a felony committed by the appellant, and alleging that the appellee was a party to such illegal act. The facts are' sufficiently detailed in the opinion of the court for an understanding of the case.
    The court below dismissed the bill, and the cause came here on an appeal by the complainant.

      A. L. Williams, for appellant.

      J. M. Gillett, for appellee.
   Larrabee, J.

The question upon which this cause must be decided is, was the conveyance of the lands, described in the bill, made with a view to the compounding of felony? Was-such the intention and end of the parties ? If it was, there is an end of this cause ; for it is manifestly repugnant to the duty of every court of justice, to lend its aid to enforce or annul such a contract. The authorities upon this point are too numerous, and the doctrine too plain and well settled, to be even referred to.

In May, 1847, an indictment was found against Swartm', the complainant, in the district court of Eond du Lac county, for forging the name of John Slaven upon a draft for the sum of $159.68, and passing it to tbe defendant, Gillett. In October following, the complainant was arrested in Easton, in Pennsylvania, by tbe sheriff of said county, and brought to Eond du Lac. The defendant accompanied them on their journey, and, as far as the present inquiry is concerned, it is immaterial in what capacity he acted. He had repeatedly declared, both before and after the arrest, that he should endeavor to procure the complainant's lands as security or payment for the money obtained on the' draft, together with his costs and charges; and, according to the testimony of the sheriff and Simmons, was willing, in the event of success, to let the complainant go clear. The obtaining the land as payment, seemed to be the main object of the defendant, and he seemed entirely to disregard the means used; nor was the complainant apparently less anxious to compound his felony in this way. He had admitted the forgery and the receipt of the money from the defendant, and that he had wronged and injured him. Nowhere, either in the bill itself or in the proofs, is this denied. The bill alleges that defendant promised, if complainant conveyed his land, he would not appear against him upon his trial; that it would be a settlement of the whole matter, and complainant might return to Easton in the fall. The testimony of Clock, sustained by corroborating circumstances, is conclusive as to this. Frequent conversations of this character were had between the parties on their journey. Within two days after their arrival in Fond du Lac, the conveyance was made; and although there is no proof that conversations of a like character were, had at the time the deed was executed, still, from the whole testimony in the cause, there can be but little doubt but such inducements were held out by defendant as part consideration of the conveyance. Should this court annul a contract — cancel a deed — made under such circumstances ? Would a court of equity enforce a similar contract, if executory ? Most certainly not. It will not, then, annul a contract already executed, especially where the parties are in pari delido, unless in cases where public policy would be thereby promoted.

“The suppression of illegal contracts is far more likely, in general, to be accomplished, by leaving the parties without remedy against each other, and by thus introducing a preventive check, naturally connected with a want of confidence and a sole reliance upon personal honor.” “The law leaves the parties to such a contract just as it found them. If either has sustained a loss by the bad faith of a particeps criminis, it is but a just infliction for a premediatated and deeply practiced fraud. He must not expect that a judicial tribunal will degrade itself by an exertion of its powers to shift the loss from one to the other, or to equalize the benefits or burthens which may have resulted from the violation of every principle of morals and of law.” Battle v. Coleman, 4 Pet. 184.

“The rule, as now clearly settled, is, that where the contract grows immediately out of, or is connected with an illegal or immoral act, a court of justice will not lend its aid to enforce it; and if the contract be in part only connected with the illegal transaction, and growing immediately out of it, though it in part be a new contract, it is equally tainted by it.” 4 Wash. C. C. 297.

The conveyance in question, if made solely as a discharge of complainant’s civil liability, would be valid if made in good faith, and with equal means of knowledge; but it is strongly to be inferred, from all the facts in the cause, that this was not the whole consideration; and although the inadequacy of price is not so great as to raise a presumption of fraud, still, as connected with other facts, I think no candid mind could fail to perceive that the conveyance was in part, at' least, connected with a design to compound a felony.

At the time the deed was executed, although the complainant was in custody, yet the evidence is clear that he acted freely and voluntarily. He was allowed to work in an open field, and go to and from the town, unattended. Under such circumstances it "would be difficult to imply that be acted under any unlawful constraint, and I cannot see that tbe contract can in any way be avoided by duress. It was argued by tbe counsel for tbe complamant that tbe fact, that tbe defendant was deputy sheriff at tbe time of tbe arrest and until tbe arrival at Fond du Lac, should have much weight in raismg a suspicion of fraud in obtaining tbe conveyance. It is undoubtedly true, that tbe law bolds ministerial officers to a strict responsibility and prompt discharge of their duties; and a court of equity will set aside a contract, where official power is made tbe instrument of extortion. But in this case there was an acknowledged felony committed, and tbe complainant was in tbe immediate custody of tbe sheriff from tbe time of tbe arrest up to tbe time of arrival at Fond du Lac. There is no evidence that tbe defendant acted as deputy after tbe arrival; and, moreover, it is not to be presumed that tbe fact of bis so acting bad any influence beyond that of tbe fear of bis appearing as a witness on tbe trial. This was apparently tbe motive which operated upon tbe complainant.

Under this view of the cause it does not become material to notice tbe other points raised in tbe argument. Tbe whole cause presents unmistakable evidences of a settled design to violate the law. Tbe pretended ignorance of Swartzer in indorsing tbe draft by bis mark, and. afterwards writing bis name legibly both in German and English ; the declarations of Gillett to tbe sheriff, and bis repeated conversations with .Swartzer, all show this design; and now tbe complainant, coming into a court of justice with all these evidences of moral turpitude, and asking its aid to relieve him from tbe consequences of bis guilt, presents a cause which needs only to be stated to be decided.

Tbe decree is affirmed, with costs.


text:
    Ford et al. v. Baird, Assignee of D. Jones & Co.
    1. Ekkok. — where judgment has been entered on default, though the special count in the plaintiff’s declaration may be objectionable, yet the common counts being good, the judgment will be sustained.
    (1 Chand. 212.)
    ERROR to the late District Court for Brown County.
    An action of assumpsit was brought against the defendant Ford, as the receiver of the Green Bay lumbering company, and against the other defendants, as members of said lumbering company. The declaration counted upon a note given by Ford, as receiver, to D. Jones & Co., and there were also the common money counts.
    A part of the defendants suffered a default for want of a plea, and others of them pleaded the general issue, and one, a special plea. None of the defendants appeared to defend when the suit was called on for trial, and the default of all was taken, and the damages were assessed as against all, for the amount of principal and interest. A motion was made in behalf of the defendants below for a new trial, but which was refused by the district judge, and the cause was brought to this court upon the errors alleged.

      D. II. Chandler, for the plaintiffs in error,
    insisted that the count upon the note given by the receiver of the lumber company, could not be enforced as against the members of the company, because they were not parties to it, nor as against the receiver, because it was executed by him in his official name; and that there was no allegation in the count that he had funds in his hands as such receiver, or that he promised other than as receiver.
    That no recovery on the common money counts could be had, because there was no privity of contract between all the defendants and Jones & Co.; that there had been no amendment of the declaration as to parties or matter, and that the statute did not presume an amendment to have been made unless it had been done in fact: and there being no amendment in fact, the judgment could not be sustained.

      A. L. Oollins, for the defendant in error,
    claimed that the declaration was sufficient to sustain the judgment, and that, after default and judgment, the court would not disturb it on writ of error.
   Stow, C. J.

This was a judgment by default in the court below, and we do not discover any such error in the record as will warrant its reversal, Though the special count may perhaps be bad, the common counts are unobjectionable, and are sufficient to support the judgment; and, after verdict or default, this is enough.

Judgment affirmed.


text:
    Knowlton et al. v. Culver et al.
    1. Time — divisions oe the day. — In judicial proceedings, the law implies that acts done on the same day take place in the order necessary to give them validity and effect; hut, whenever it becomes necessary to inquire into the priority of acts for the furtherance of justice and the protection of parties, the presumption must yield to the facts.
    2. Same. — In an action of replevin, where the property claimed was not severed from the freehold of the plaintiff at the time of the issuing of the writ, the precise time of the issuing of the writ — though on the same day of the severance of the property from the freehold — becomes material, and may be proved at the trial.
    3. Bills oe exception. — Where there is no dispute about the facts, the bill should state that such and such facts were proved; but where there is a controversy as to the weight or admissibility of evidence, the evidence given or offered must be set forth at length, and where the objection is as to the weight or effect of it, the bill should state that it was all the evidence offered at the trial or on the point in question. Edmister v. Crarrison, 18 Wis. 594.
    (1 Ohand. 214.)

      ERROR to the late District Court for La Fayette County.
    This was an action of replevin, brought by the defendants in error against the plaintiffs in error, for taking 5,000 pounds of lead ore.
    On the trial, it appeared in evidence that the action was commenced before the mineral in question was dug out of or severed from the earth, where it was embedded, by the defendants below, and that upon that question the presiding judge charged the jury that they could not divide the parts of a day so as to defeat the action ; that if the jury should find that the suit was commenced on the day in which the act was done, for which the suit was brought, they could not regard the evidence which was offered to show that the suit was commenced before the severance of the mineral from the freehold ; and that, so far as that point in the case was concerned, they must find for the plaintiffs; that the day laid in the declaration must be the guide, ete.
    To this charge, the defendants below (the plaintiffs in error) excepted.
    Various other exceptions to the ruling of the judge were taken, which it is unneccessary to notice, inasmuch as the opinion of the court does not draw them in question in its decision.
    The jury found for the plaintiffs below, in accordance with the instructions.

      J. H. Knowlton, for plaintiffs in error.
    Quiver, for defendants in error.
   Hubbell, J.

This is an action of replevin for 5,000 pounds of lead ore. There are several allegations of error, of which the third is as follows :

“ The court erred in charging the jury that the day could not be divided ; and that, although this suit was commenced a few hours before the mineral, taken on the writ of replevin, was dug loose or severed from the earth, yet, if the jury were satisfied tbat the said mineral was dug loose during any hour of the said 8th day of February, so as to become personal property, so far as this point was concerned, they (the jury) must find for the plaintiffs, as this was the day laid in the plaintiffs’ declaration, which must be the guide ; and no fraction of a day could be inquired into for the purpose of showing that the suit was commenced before the mineral was dug loose, upon the same day; that this was not a case in which such an inquiry could be made.”

The bill of exceptions contains the following among other matters : “ And upon the trial of that issue, said defendants, to maintain the issue on their part, and to defeat the said •plaintiffs, gave in evidence and proved that the mineral, taken on the writ of replevin in this suit, was dug loose from the earth after three o’clock in the afternoon of the 8th day of February last, and raised to the surface and placed in a pile by eight o’clock in the forenoon of the 9th of the same month ; from which place it was replevied about noon of the said 9th. And the said defendants further proved that the said suit was commenced in the forenoon of the said 8th day of February last.”

Clearly, no cause of action existed until the mineral was converted from real into personal property, by being severed from the earth. And this was not done until three o’clock in the afternoon of the 8th day of February. If, therefore, the suit was commenced in the forenoon of the 8th, as the bill of exceptions shows, the suit was brought, in point of time, before the cause of action arose. This, on general principles, would be a fatal error, and would be good cause for demurrer, special or general, and for reversing the judgment on writ of error. 1 Caines, 69; 4 Mass., 263, 11.

It is alleged, however, that the law recognizes no fractions of a day ; and the learned judge, in the court below, expressly charged the jury...that this was not a case in which fractions of a day could be inquired into. In this, I think, he erred. In general, it is true that, in computing time in respect to the service of papers, the issuing of process, the calculation of interest, the running of statutes, and many other like matters, the fractions of a day will not he considered. And in reference to the commencement of suits, in particular, it may be admitted that the precise hour or moment of issuing the process or handing it to the sheriif will not, in ordinary cases, be inquired into. Prima fade, the presumption of law is that the several acts or steps in the course of a legal proceeding take place in the order necessary to give them legal effect. But, whenever an inquiry into the priority of acts, on the same day, becomes necessary in order to protect the rights of parties, the ordinary presumption must give way to the facts of the case. 4 Wash. C. C. 232; 8 Greenl. 207.

This is not properly dividing a day, or taking notice of ’ parts of a day ; it is simply taking notice of time, and giving effect to particular acts according to their actual occurrence. The books abound hi examples of this sort. The precise times of entering judgments, recording deeds, serving attachments, levying under executions, and issuing policies of insurance, are always deemed proper subjects of inquiry when the rights of parties are affected by the priority of the acts.

My attention has been called to the case of Badger v. Phinney, 15 Mass. 346, as an authority showing that courts will presume acts to have occurred at such hour of the day as may be necessary to give validity to the proceeding or to effectuate purposes intended. Eor the prevention of wrong, in extreme cases, such presumptions have been indulged. A similar ruling prevailed in Clute v. Clute, 3 Denio, 263. But these cases must be regarded as exceptions to the general rule, ex debito justitm ; and while they sufficiently establish the fact that fractions of a day, or, rather, points of time, may be the subject of judicial notice, they show that, had justice required it, the ruling would have been/ different. In the present case, the writ of replevin must have been procured by an affidavit of the plaintiffs, setting forth their right to the mineral afterwards replevied. But, hi point of fact, the mineral was not severed from the freehold at the time the writ issued. Aside from the practical absurdity involved in the assumption that the affidavit can have been properly made, there is nothing in the whole case pi'esented to the court which should induce a straining of the rule of law to give validity to the writ.

3 have looked into the two other questions raised in the assignment of errors, to wit: whether the mineral taken was the proper subject of replevin, and whether the interest of McCluskin was fatal to the plaintiffs’ action; and I find in them no strong ground of justice which varies my views of the point already decided, and as this point is fatal to the plaintiffs’ suit, I need not enter upon a discussion of those questions. It was urged in argument that the bill of exceptions was defective in not stating that it contained all the evidence on the points in controversy, or in not setting forth, in fact, all the testimony given on the trial. The general rule in regard to bills of exceptions is this: Where there is no dispute about the facts proved, the bill should state that such facts were proved on the trial; and that is the form of the present bill. In that respect, it is correct in form and sufficient in substance, saving the court much trouble and time in examining the details to arrive at the admitted conclusion. Where, however, there is a controversy as to the weight, effect or admissibility of evidence, the bill should set forth the evidence given or offered at length, and should aver that it was all the evidence given or offered at the trial, or on the point in question.

On the whole, I am satisfied that there was error in the instructions of the court below, and the judgment must be reversed, with costs.

Judgment reversed.


author: Wheeoht, J.

text:
    Winne v. Elderkin.
    1. Arbitration and ¿.ward. — Notwithstanding the provisions of the statute on the subject of arbitration and award, a parol submission and award is binding on the parties to it, as at common law.
    2. Pleading — evidence.—"When it becomes necessary to establish a submission and award as a defense to an action for the causes or matters so submitted, the same may be given in evidence under the general issue.
    (1 Ghand. 219.)
    ERROR to the District Court for Walworth County.
    This .was an action of assumpsit, brought by the defendant in error against the plaintiff in error, for injury in carelessly and unskillfully using a home of the defendant in error, lured to the plaintiff in error, whereby and by occasion of which neglect and ill-usage, the horse died. The declaration also-contained the common counts in assumpsit.
    To this declaration the plaintiff in error pleaded non-assumpsit.
    The cause was tried in the May term of the court for Walworth county, and the jury found a verdict for the defendant in error, for $58.33.
    At the same term, the plaintiff in error gave notice of, and filed a motion for, a new trial, upon several grounds.
    1. That the court rejected evidence offered on the trial, proving that there had been a verbal submission of the subject-matter of the suit to arbitrators, by the parties; and that on such submission the arbitrators had found for the plaintiff in error, and awarded accordingly.
    2. That the defendant in error did not prove on the trial before the court, that the horse in question was loaned to the plaintiff in error without a reward for its use.
    3. That the verdict of the jury was against law and the evidence in the case.

      At the same term, the motion for a new trial was argued, and the judge denied the motion, and ordered judgment in favor of the defendant in error according to the finding of the jury. To this ruling and decision of the judge, the plaintiff in error excepted, as folloivs : That on the trial of this cause, the plaintiff proved, or offered to prove, that before the commencement of the said suit the plaintiff and defendant entered into a.mutual stipulation and agreement with each other, to submit to arbitration all pending matters of difference between them, including the cause of action here set up, and for that purpose two persons were selected and agreed upon to act as such arbitrators; and in case of disagreement between them, they should select a third person, or umpire, who with them should make an oral reward in the premises; that, in ac-. cordance with such submission aforesaid, the said two arbitrar tors met together to hear and decide such pending matters aforesaid, and were attended by the parties, who heard the testimony of their respective witnesses touching the subject-matter of this suit, and such arbitrators being unable to agree upon an award, did call to their aid a third arbitrator, or umpire, in accordance with such submission aforesaid; and that the three, after having examined the testimony given, and having deliberated upon the matter, made an oral award in favor of the plaintiff in error (the defendant below), of which the • defendant in error had notice; which matter, so proved or offered to be proved, the judge on the trial rejected or overruled, and to which rejection and overruling of said testimony the plaintiff in error, at the time of such rejection or overruling of said testimony, excepted.

      Geo. Gale, for plaintiff in error.

      M. M. Strong, for defendant in error.
   Wheeoht, J.

This cause was tried hi the late district court of Walworth county, and the error alleged to have been committed on the trial is, that the district judge refused to allow the plaintiff in error to introduce evidence of a parol submission of the matter in controversy between the parties to arbitrators, and an award of the arbitrators upon the submission.

The declaration was in assumpsit, and the suit was commenced by the defendant in ei’ror. To the declaration of the plaintiff below, the defendant below pleaded the general issue, and, to defeat the action, offered to prove on the trial that all matters of difference in the suit had been, previous to its commencement, submitted to arbitrators, who had met the parties, aud had, in pursuance of the submission, after having examined the testimony, made an award in favor of the said defendant, of which the said plaintiff had notice, etc.

Two questions were raised in the argument; one was, that the award offered in evidence was void, and the other, that admitting it to be valid, it was inadmissible under the plea.

Upon general principles, and without regard to our statute upon the subject of arbitrations, there can be little doubt that the award was a valid one between the parties. • Authority need not be shown to prove that an award upon a parol submission is binding upon the parties at common law. If this is the correct doctrine upon the subject, the award in question was valid, uuless .our statute in relation to the subject of arbi-trations so changes the rights of parties as to deprive them of the power to settle their differences by arbitration, unless the statute is complied with. In order to have a submission under the statute, the parties must make an agreement in writing, and must acknowledge it before a justice of the peace ; and it is contended that the statute takes away the right of parties to submit matters in controversy between them, to arbitrators in any other mode. s

But we are of opinion that this is not the correct view of the subject; the statute contains nothing which shows that the legislature intended to prevent parties from adjusting their differences by the convenient mode of common law arbitration. Similar statutes in other states have not received tbe construction contended for. Wells v. Lain, 15 Wend. 99; 8 Mass 1; 6 id. 46.

If the award in question was valid, it remains to be seen whether it was admissible in evidence under the plea of the general issue, and we have no doubt on the subject; au award in respect to the pleadings is treated in the same manner as a judgment (Cowen & Hill’s Notes, 1035); and authority is abundant to show that in actions of assumpsit a judgment can be given in evidence under the general issue. Young v. Black, 7 Cranch, 505; Cowen & Hill’s Notes, 1026, 810.

hi rejecting the evidence the judge erred, and the .judgment of the district court must be reversed.

Judgment reversed.


author: Stow, C. «J.,

text:
    Lamb v. Anderson.
    1. Equity — judgment al law. — A court of equity, upon a proper showing’, or where at law the defense insisted on was inadmissible, may entertain a bill to set aside and annul a judgment obtained at law.
    2. Practice — testimony.—A party, attending the examination of witnesses in an equity suit, is bound to make and take his objections before the officer taking the testimony, and to present them at the hearing of the cause ; they cannot be taken for the first time on appeal.
    (1 Chand. 224.)
    APPEAL from the-late District Court for loiva County.
    The bill in this cause was filed by Lamb. It, in brief, alleged that one Carrington made a draft on the appellee, B. Lamb, J. Woods and J. E. Coyle, in favor of Anderson, for the sum of $100, on demand; which was accepted by the appellee. That at the time the draft was made, the appellee, Woods and Coyle were trustees of a school district, known as “ Big Spring school district,” in Iowa county, and that, at the time, the drawer was the employed teacher of the school. That, at the time of the making of the draft, Car-rington was the debtor of Anderson, and Lamb accepted, upon the supposition and expectation that the other trustees would .also have accepted the same, as it was understood and agreed they should do, and as a condition upon which it was drawn, they would ; and that the draft should stand as security for the indebtedness of Carrington to Anderson, and that the money thereon would be paid when the trustees should obtain the school money from the county treasurer thei’eafter, and that the draft was accepted by Lamb upon this agreement and understanding, and that Woods and Coyle would also accept the same with him. That in the year following, Lamb was a school commissioner, but not a trustee, and drew from the county treasurer the school money belonging to the school district, in bills upon the Mineral Point Bank, which at that time were current at par; and on the same day he and Anderson met, when he, Lamb, informed him of the fact, and stated that he was ready to pay the draft out of those moneys, and informed him what kind of money it was, but that he had it not then with him ; that Anderson seemed to be and expressed himself satisfied ; that Lamb then paid him five dollars out of his own private funds at his request, but not upon the draft; that shortly afterwards Anderson paid to ■James Woods, named in the bill, and who at the time was one of the trustees of the same school district aforesaid, the money drawn as aforesaid, and a portion thereof was called for by Anderson, who was told by Woods that it would be paid to him when he presented the said draft.
    That afterwards Anderson commenced a suit at law against Lamb, upon the draft accepted by him, and recovered a judgment against him fra' the amount thereof, owing to the fact that, by the strict rules of the common law, the court could not receive his evidence of an equitable defense; that an execution had been issued upon such judgment, which was sought to he enforced.
    There was a prayer for an injunction to stay all farther proceedings upon the execution, and that at the hearing of the cause it might be decreed to he stayed perpetually and for general relief. An injunction was granted to stay further proceedings upon the execution.
    ' The answer of Anderson set up the indebtedness of Car-rington to him of about $100, and securities taken from him to pay the debt, and also the draft drawn by Lamb as having been accepted by him for the use of Carrington. That upon the delivery of the draft, he gave up to Carrington the securities which he held for the debt due him, and agreed to release Carrington from the payment of his debt; alleges that at the time of accepting the.draft, it was agreed between Anderson and Carrington that it should be paid in “ lawful money of the states.” That on presenting the draft to Lamb for acceptance, he wrote on it, “ we accept the within order,” and subscribed his name thereto ; denies that Coyle was, at the time of the date of draft, a trustee, etc., and not a resident of the district; and that Lamb was the principal acting trustee, and did the principal part of the official business; denies that it was understood, at the time the draft was drawn by Carrington, he was indebted to And&son as charged in the bill; and also denies that at the time it was drawn it was understood that it was not to be paid until the school money should be drawn; that when he received the draft, he understood from the wording of it, that it was to be drawn on demand ; denies that he understood the undertaking of Lamb was as trustee of said district; admits that on the 1st of April, 1841, he had a conversation with him as stated in the bill, and received from him five dollars, but denies that he (Anderson) then informed him that he, as school commissioner, had drawn the money to be paid to the trastees as school money; denies that Lamb offered to loan the five dollar's paid
      Mm, when he so paid it, and that he has never since demanded re-payment of the same ; denies that he ever called on Woods for the payment of the draft, but admits that he was at the .house of Woods, and was informed by Mm that he had money left in his hands to pay it. Anderson inquired what sort of money it was, and Woods replied that it was upon the Bank of Mineral Point, and he replied that he would not take it, and that Woods neither then nor afterwards tendered him the money, but simply said he had it for him ; admits the commencement of the suit at law and the recovery of the judgment.
    Proofs were taken, and on the hearing the district court sustained the bill and decreed a perpetual stay of execution on the judgment at law.
    From this decree the defendant, Anderson, appealed to tMs court.

      Samuel Orawford, for the appellant,
    objected that in taking the testimony in the case, the justice before whom it was taken did not certify that the witnesses were legally sworn, and that, therefore, such testimony ought to have been rejected.
    That a party, filing a bill of discovery, to relieve himself from a judgment upon the ground of an equitable defense, which could not be interposed in the suit at law, and therein alleging matters, the nature of which was to confer jurisdiction in equity to review and annul the judgment, was bound and concluded by the answer of the defendant, and was not authorized in such a case to disprove the answer. 2 Story, 499.

      M. M. Qothren, on the part of the appellee,
    insisted that a court of equity would and did possess jurisdiction to relieve a party against a judgment at law, where he had an equitable defense which could not be available at law '; that though the party filing Ms bill, defended the suit at law, he was not barred from a resort to this court, in such a case; that a party defendant, though he had no adequate defense at law, was bound to defend tbe suit, in order to confer jurisdiction upon a court of equity to entertain bis bill; and tbe better to enable tbe court of equity to see that be offered evidence in tbe suit at law, wbicb could not there be admitted, but wbicb was admissible in equity, and to this point cited 2 Story, 217.
   Stow, C. «J.,

made a memorandum of tbe opinion of the court, to tbe effect, that upon tbe matters alleged in tbe bill, a court of equity bad jurisdiction over the subject-matter of the suit at law, and in this case bad very properly exercised it; that tbe bill contained the statement of a case, conferring upon a court of equity jurisdiction to act, and showing that the complainant was entitled to be relieved from tbe judgment obtained at law against him ; that tbe answer of the defendant was evasive, and did not meet and refute tbe allegations of tbe bill; that where parties appeared on tbe examination of witnesses (as was tbe case in this cause in tbe court below) before tbe officer taking their depositions, tbe parties were bound there to take exceptions to any informality which may have occurred on such examination; and if that was not done, tbe party, whose duty it was to have made objection, was concluded in this court, and could not, on appeal, make such objection, for tbe first time, to defeat the ends of justice.

Tbe decree of tbe comb below was affirmed.


text:
    Saunderson v. Lace, Adm’r of Peck.
    1. Replevin — practice.—Where, in an action of replevin, the plaintiff discontinued his suit, and a writ of inquiry is awarded to ascertain the value of the property and the damages for detention, and the jury only assessed the damages at six cents, it is very questionable whether any judgment can be rendered upon such finding.
    2. Judgment — conclusive fffeot of. — While it is competent for the parties to an action to settle a suit, yet, if a judgment is afterwards rendered in the action, although interlocutory, it is conclusive between the parties until set aside or reversed, and cannot be collaterally impeached ; nor can a party to it rely upon transactions which took place between him and his adversary previous to its rendition, to avoid it or affect the liability which it created.
    3. Replevin — return oe property. — By the territorial statute, the defendant in replevin, under the plea of non detinet, in case he succeeds, is entitled to a return of the property replevied, and damages.
    (1 Ohand. 231.)
    ERROR to the late District Court for Milwaukee County.
    The action was replevin in tbe detinet, for the detention of a schooner, the property of Thomas H. Peck, and her tackle, apparel, etc. The suit was commenced in April, 1843, and the property replevied and appraised. At the June term of that year the plaintiff declared in accordance with his writ. At the same term the defendant pleaded non detinet. As of the same term the plaintiff filed a nolle prosequi in the cause. On the same day the defendant waived a return of the property, and elected to take judgment for the value and damages for the detention; and a jury was empaneled, and found the value of the properly to be $800, and assessed the damages for the detention at $64.87. And on the same day the plaintiff filed a motion to set aside the inquest upon the ground, first, that the judge should have allowed the plaintiff to prove that the suit had been settled between the parties, and second, that the cause was settled and the discontinuance entered in pursuance of an agreement between the parties that it should be no further prosecuted. At the November term of the court, the motion for setting aside the inquest was argued, and the motion granted, and an alias writ of inquiry awarded. At the same term the writ was executed, and the jury returned a verdict of six cents damages in favor of the defendant, and judgment was entered thereon.
    On the execution of the writ of inquiry of damages, there was considerable proof given to establish and to repel the fact that there was an agreement between the parties for the discontinuance of the suit. Upon such testimony thus given, the judge charged the jury, “ that it was competent for the parties to settle the suit, and that such settlement, if made, was binding ; and if made with the design to fix the bail, it would operate to their discharge; that, if the jury believed the testimony of the witnesses, it amounted to a release of Tech; that the finding of the jury fixes the extent of the liability of the bail; a release of Pech releases the bail; and that, if the court had observed the state of the pleadings in this case, a writ of inquiry of the value of the property would not have been awarded, as the pleadiugs in the case do not entitle the defendant to a return of the property or its value ; that tbe finding of a nominal sum would carry tbe costs, wbicb tbe plaintiff should pay before satisfaction could be entered.’'' After tbe jury bad retired to debberate, they returned into court and asked of tbe judge further instructions, and tbe judge instructed them that tbe testimony amounted to a release of tbe plaintiff and bis bail, of tbe claim by tbe defendant to tbe property and damages, and that a nominal sum to tbe defendant would carry tbe costs.
    Tbe plaintiff hi error assigned for error, in tbe court below, various matters, as follows:
    1. That tbe court below erred in setting aside tbe inquisition first taken of tbe damages to tbe defendant below, and in awarding a new writ of inquiry.
    2. That tbe court erred in admitting tbe deposition of Saunderson to be read to tbe jury, and also of other witnesses.
    3. That tbe district judge erred in bis instructions to tbe jury, as originally given, and as afterwards repeated.

      A. D. Smith and J. JE. Arnold, for plaintiff in error,
    insisted that, at tbe time tbe defendant in error entered a discontinuance of tbe action, tbe .defendant below, under tbe state of tbe pleadings, was entitled to tbe verdict for damages wbicb was then found by tbe jury, and to tbe judgment wbicb was then rendered thereon. And in support of this, cited Stat. Wis. 274, § 19 ; id. 275, §§ 30, 31, 32; Story’s Plead. 449,450 ; 3 Mass. 199 ; Gilb. onRepl. 169 ; Graham’s Pr. 603 ; 8 Petered. Ab. 387, 393 ; 2 Yeates, 531.
    2. That after tbe judgment, by discontinuance, tbe bail not objecting thereto, tbe court below should not have received evidence of a previous settlement between tbe parties to defeat tbe defendant below from recovering the value of tbe property replevied and bis damages for detention, that evidence being only admissible upon tbe trial on tbe issue joined, or upon a plea of puis darrein continuance. 1 Saund. Plead, and Ev. 23 ; Graham’s Pr, 296,

      3. That the matter of a settlement between the parties, and the release of the bail thereby, being a question of fact for the jury to decide, and there being conflicting and indecisive evidence given upon that subject, it should have been left to the free decision of the jury to have considered the force and effect of such evidence; and that the instructions of the judge, as to the force or effect of such evidence, or the instruction that the evidence given amounted to a settlement, and consequently a release of the plaintiff below, or that it operated to release the plaintiff below and his bail, was erroneous and unauthorized by law.

      J. Holliday, for defendant in error,
    insisted that under the plea in the court below, of non detinet, the defendant below was not entitled to a return of the property replevied, or to damages for the detention thereof, and cited 6 Hill, 613, that the settlement of the parties was competent to be shown in mitigation of damages. 1H. Black. 24; 3 Mass. 199 ; 13 Wend. 496 ; 21 id. 300 ; Graham’s Pr. 901.
   WhitoN, J.

This, was an action of replevin, brought by Peak, the plaintiff below, in the late district court for Milwaukee county, for the schooner “ Liberty,” with her anchor, chains, small boat, and all other apparel and furniture to said schooner belonging, together with the enrollment and license for said schooner “ Liberty.” The action was in the detinet, and the plea non detinet, simply. The writ was served, as appears by the sheriff’s return, by replevying the schooner, together with her furniture, tackle and apparel, and delivering the same to the plaintiff, who gave bond as the law directs.

Subsequently to the filing of the plea, and without a trial, the plaintiff filed with the clerk of the court, in vacation, a written stipulation that a judgment of discontinuance should be entered in the cause ; but the,district judge, as appears from the bill of exceptions, would not permit a judgment of discontinuance to be rendered upon tbe stipulation thus filed. Afterwards, however, the plaintiff, as the record shows, at a term of the court held on the second Monday of June, 1844, discontinued the suit, whereupon the defendant waived a judgment for the return of the property replevied, and elected to take his judgment for its value under the statute. This judgment was accordingly rendered, and the value of the property was thereupon assessed by a jury at the sum of $800 ; the juiy also assessed the damages for the detention of the property, and fixed the sum at $64.87. This assessment of the value of the properly, and of the damages for its detention, was set aside by the court, on motion of the plaintiff’s attorney, and a new writ of inquiry awarded. The jury, empaneled by virtue of this writ, at a subsequent term of the court assessed the damages to the defendant at six cents; upon which assessment the court rendered a judgment in favor of the defendant for the said damages and for his costs. It is very questionable whether the court was warranted in rendering any judgment upon this assessment of the jury. A judgment had been previously rendered by the court in favor of the defendant, for the value of the property replevied, and the object of the writ of inquiry was to ascertain the value of the property, as well as the damages which the defendant had sustained by reason of its detention; and yet the jury assessed the damages merely, and did not find at all in relation to the value of the property. This it was clearly their duty to do. See statute, p. 274, §§ 30, 32. They manifestly discharged them duty very imperfectly, and it is very doubtful whether the court could properly enter a judgment upon their assessment. But this is not assigned as error and has had no influence upon the court in disposing of the case.

Various exceptions were taken.by the defendant to the ruling of the judge, in relation to the admissibility and effect of the testimony introduced by the plaintiff to the jury empaneled to make the assessment. The testimony offered by the plaintiff and objected to by the defendant, which was admitted by the judge, tended to prove a settlement of the suit and of the controversy in regard to the schooner by the parties, and consequently a discharge of the liability of the plaintiff. The defendant contends that this was improper, as the jury had nothing to do but to assess the value of the property, and damages for its detention.

Undoubtedly, a judgment maybe discharged by the parties to it, like any other obligation, and when the discharge is proved in a proper manner, the obligation created by the judgment ceases ; but it is to be observed that the testimony in question related to a settlement of the suit previous to the time when the judgment was rendered in favor of the defendant for the value of property. This judgment entitled him to recover the value of the property, as well as damages for its detention from the plaintiff; it was in full force and not reversed, and although in its nature interlocutory, until reversed, was conclusive between the parties ; the plaintiff could not impeach it collaterally, nor rely upon transactions which took place between himself and the defendant previous to its rendition, to affect the liability created by it. It is clear, then, that this testimony, which tended to prove a settlement of the suit by the parties in the winter of 1843-4, or in the spring of the latter year, when the judgement was not rendered until June succeeding, was inadmissible. But it is said that this testimony was admissible in mitigation of damages, and was admitted on that ground by the judge. I cannot see how this affects the question. The plaintiff might have shown in mitigation of damages, that the property, after being delivered to him by the sheriff, had been re-delivered to the defendant, or that he had retaken it Dewitt v. Morris, 13 Wen. 496; Russell v. Butterfield, 21 id. 300. But this testimony (if it proved anything) directly impeached the judgment which the court had previously rendered, and could not be regarded as tending to prove any fact which could properly be regarded as mitigating tbe damages. Another exception to the ruling of the judge was in relation to his charge to the jury upon the effect of the testimony. He charged the jury that if they believed the testimony of the witnesses, it amounted to a release of Pede, and a satisfaction, and that the finding of the jury fixed the extent of the liability of the bail, etc. I am of the opinion that the testimony, taken together, will not bear tins construction. If it had been properly admitted — if the plaintiff could have shown in this way that the judgment which the defendant had recovered against him had been wrongfully obtained it still falls short of establishing the fact of a release of the plaintiff. The testimony introduced by the defendant shows that the plaintiff discontinued his suit with a full knowledge that the effect of the discontinuance would be a judgment against him for a return of the property, or for its value, as the defendant should elect. It is hardly credible that he should have acted in this way if there had been previously a settlement of the suit between the parties ; at least the jury should have been permitted to put such a construction upon the testimony as they should think proper.

It was said in the argument by the counsel for the defendant in error, that the defendant below was not entitled to a judgment for a return under the plea which had been put in, and he cited the case of Pierce v. Van Dyke, 6 Hill, 613, to maintain this position. 1 do not think this position well taken. By our statute concerning the action of replevin, section 19, it is provided, that “such plea shall put in issue, not only the detention of such goods and chattels, but also the properly of the plaintiff therein.” I do not understand the case relied upon to be an authority to the extent claimed. On the contrary, the judge who delivered the opinion of the court, thought that under the statute of New York (which, in this respect, is the same as ours) the jury might so find as to entitle the defendant to a judgment for the return of the properly, when the action was in detinet and the plea non detinet, merely. In this case there was no jury called to try the issue, but the plaintiff voluntarily gave the defendant a judgment by discontinuance, and thereby confessed all that the defendant could have proved under his plea.

Upon the whole, we are of the opinion that the judgment of the district court must be reversed. We give no opinion as tci the effect of the judgment against defendant in error, upon the sureties in the replevip. bond.

Judgment reversed.