text:
    Blossom vs. Knox.
    1. Pleading. — A traverse is too large when it involves in the issue merely quantity, time, place or other circumstances which, though forming part of the allegation traversed, are yet immaterial to the merits; and, upon an issue found for a defendant upon such a traverse, he is not entitled to judgment.

      2. Covenant — Measure of Damages.— In an action upon a lease, by the lessee against the lessor, ■ to whom the rent has been paid, where there has been a breach of the covenant for quiet enjoyment, the plaintiff’s recovery will be limited to the rent paid and interest thereon.
    (3 Chand., 295.)
    ERROR to the County Court of Milwctulcee County.
    Action of covenant upon a lease made by Blossom to the plaintiff Knox, by which the former leased to the latter certain premises in the city of Milwaukee for the term of five years, at $200 per annum. There were no express covenants in the lease, but the plaintiff declared on it in two counts, as if it contained in form a covenant for quiet enjoyment, the breaches in the two counts being, in substance, that the plaintiff had demanded of the defendant possession of the premises under his lease, and that he neglected for a space of five months, etc., to put him in possession; that the plaintiff had not been permitted nor able peaceably and quietly to enjoy, etc., nor to take the rents and profits of said premises, but that one Geo. Sayer, at the time of making the lease, was in actual possession under a parol lease made by one Sheldon Thompson, he having full power and lawful authority to make it; that Sayer held possession under it during the time aforesaid, as he lawfully might by virtue of such lease; that he, Sayer, attorned to said Blossom, who received the rent from him during the time aforesaid. The defendant pleaded eight pleas. First. That the defendant had not, nor had any other person, hindered the plaintiff from entering, possessing and enjoying said premises, but that he could and might have peaceably and quietly entered and enjoyed the same, without let, hindrance or molestation from Blossom or any person lawfully claiming. The second and third pleas were similar to the first. The fourth was non est factum. The fifth was to the first count only, and to the effect that Sayer did not, at the time of making said lease, to wit: on the 17th day of February, 1849, and from thence for a long space of time, .to wit: for five months then next following, at said county of Milwaukee, have lawful right to the possession of said premises in said first count mentioned, and was not in actual possession of the same with the appurtenances, by virtue of a parol lease thereof made by and between said Sayer of the one part, and one Sheldon Thompson of the other part. The sixth plea is to the whole declaration, and denies that Sayer was in possession of the premises by virtue of a parol lease at any time after the 17th day of February, 1849, and-denies that Sayer ever had any parol lease of said premises from said Thompson. . The seventh plea is in substance that Thompson never made any parol lease to Sayer, and that Sayer was not in possession under such lease. The eighth plea avers that Thompson had no right or interest in the premises, or authority to make a parol lease.
    At the trial, it appeared that Knox had paid Blossom for the rent of the premises during the period of time in question, and that he had sustained other damages by reason of not being able to move certain buildings on to the premises on account of being kept out of possession; that if he could have moved them, the premises would have been worth much more to him than the rent he had paid.
    Upon the subject of the measure of damages, the county judge charged the jury that the measure of damages in this case is the damages which the plaintiff has actually sustained, and said “ I know of no law or reason why the plaintiff is restricted to the amount of rent paid by him before the commencement of this suit, and seven per cent, interest thereon; but on the contrary, I believe it to be in accordance with justice, if you find the plaintiff was kept out of possession, that you should take into consideration the injury he sustained, by not being permitted to move his buildings on to said lot immediately after the execution of the lease; and that you should take into consideration all the circumstances of the case, and give the plaintiff, if you find for him, such a sum as will make him whole."

      The jury found the following verdict: “We find for the plaintiff the first, second, third and fourth issues, and assess his damages at the sum of sixty dollars ; and we find for the defendant the fifth, sixth, seventh and eighth issues.”
    And thereupon the defendant below moved the court to enter judgment in his favor for costs ; but the court overruled the motion, and entered judgment against him for damages and costs.
    To reverse the judgment, he sued out a writ of error.

      Jason Downer, for plaintiff in error,
    argued that the rent actually paid by Knox to Blossom before the commencement of the suit for the demised premises for the time he was kept out of possession, and interest, was all Knox could recover, if any thing; and the receiving of testimony, and the instructions of the court as to other damages was error. Kinny v. Walls, 14 Wend., 36; Kelly v. Dutch Ch. Schenectady, 2 Hill, 105; Rich v. Johnson, 1 Pin., 88; that the allegation of Knox in his declaration that he was kept out of possession by Sayer who was in lawful possession on the 17th day of February, 1849, by virtue of a parol lease made to him by Thompson, who had full right to make such lease, was a material allegation, and necessary to show that he was kept out by a paramount title; and the pleas traversing that allegation are material, and the jury having found on these issues for the defendant, the court erred in not entering judgment in his favor. Grannis v. Ciarle, 8 Cow., 36; Taylor’s Landlord and Tenant, 315, 316;, 2 Hill, 105.

      S. Sea, for defendant in error.
   Howe, J.

The writ in this cause has brought before us the record of a judgment rendered in the county court of Milwaukee county, in an action upon the covenants of a certain lease executed by the plaintiff to the defendant in error.

Upon this record several errors are assigned, only two of which does it become necessary for us to notice.

The breaches assigned by the plaintiff below are traversed by eight pleas, the first four of which are denied, and the last four are affirmed by the verdict of the jury ; and upon this verdict the defendant below moved for judgment non obstante. The motion was overruled and that is the alleged error which we first notice.

We think the motion was properly denied. It is said, indeed, that the last four pleas answered the whole declaration, and being affirmed by the verdict the defendant was entitled to judgment thereon, notwithstanding the finding upon the other issues. But we are very clearly of opinion that those pleas do not answer the whole declaration, and it is to me quite doubtful if they will answer any material part of the declaration. On the contrary, I am inclined to regard the 5th, 6th, 7th and 8th pleas as admirable specimens of that kind of traverse which pleaders have characterized as faulty by reason of being too large.

A traverse is said to be too large when it involves in the issue, quantity, time, place or other circumstance, which, though forming part of the allegation traversed, are immaterial to the merits of the cause. 1 Chit. Pl., 621; Steph. Pl., 286.

These pleas do not put in issue merely the substance of the plaintiff’s averment by denying simply, the right of Sayer to occupy in manner and form, etc., but they deny his right to occupy for the time and under the “parol lease” as stated, neither of which circumstances seem to me material to the plaintiff’s right of recovery, though the first might affect the amount of his recovery.

But however this may be, it is a sufficient answer to this motion, that the acts of the defendant himself are well assigned for a breach of his covenants as set up in the plaintiff’s declaration. This breach is distinctly traversed by the defendant in the first four pleas, with great amplitude of form and expression. And the issue taken upon each of those pleas has been. found for the plaintiff. We cannot think the defendant was entitled to judgment against that finding.

But although we cannot for these reasons pronounce judgment for the defendant, we must reverse that entered for the plaintiff, because the rule given to the jury, by which to estimate the plaintiff’s damages, was erroneious.

The doctrine of the courts of this country, as to the true measure of damages in actions of this nature, is not entirely harmonious. And it is not to be denied, that the rule submitted by the learned judge who tried this cause below is strongly fortified by the principles of abstract justice, and has received besides, the sanction of some judges of the very highest respectability.

But the weight of authority has approved another rule, to wit: that in actions for the breach of the covenants of seizin and warranty, the plaintiff’s recovery will be limited by the consideration paid and the interest thereon ; and to this rule this court has already yielded the sanction of its authority. Rich v. Johnson, 2 Pin., 88 ; see also Staals v. Ten Eyck's Fx’rs, 8 Caines, 111; Pitcher v. Livingston, 4 Johns., 1; Kelly v. Dutch Gh., Schenectady, 2 Hill, 105; Bender v. Fromberger, 4 Dali., 441.

The judgment of the county court is reversed and the cause remanded.


source: Caselaw Access Project

author: WhitoN, J.

license: Public Domain

text:
    Palmer vs Corwith.
    1. Taxation — Nonbesident Owneb. — Under see. 11, ch. 15-, R. S. 1849, all kinds of property used for the purpose of manufacturing or other business in this state are subject to taxation in the town or ward where found and used, although the owner is not a resident of the state. Such property, thus situated and used, may he assessed and taxed to the person having it in possession, and may be levied on and sold to enforce collection of the tax in the same manner as though taxed to the owner.

      2. Same.— Real estate is to be valued as of the first day of June in each year, and mineral raised from the land before that day becomes and may be taxed as personal property.
    (3 Chand., 297.)
    ERROR to tbe Circuit Court for Iowa County.
    This was an action of replevin brought by Henry Oorwith against one Palmer, to recover two horses and harness and two wagons, alleged to have been by Palmer unjustly taken and detained from the plaintiff. The defendant pleaded non cepit, property in one Chester Olds, and also property in N. Corwith & Co., and gave notice that he would prove that the said property was taken by the defendant as treasurer of the town of Highland, by virtue of a tax list and’warrant directed to him and issued by the town clerk, to satisfy the state, county and town taxes for the year 1849, assessed against Chester Olds.
    The assessment roll, tax list and warrant were produced in evidence, and admitted to be genuine and in accordance with law; showing a tax upon an assessment of Chester Olds for real estate $1,250; personal property $8,000; in all $9,250; the amount of the tax being $188.85.
    At the time when the assessment was made and for some years previous, the property upon which the assessment was made and the tax was levied had been in the possession of Olds, as agent of Henry Corwith or of N. Corwith & Co., and the evidence tended to show that it was the property of Henry Cor-with.

    The firm of N. Corwith & Co. consisted of Nathan Corwith, Henry Corwith and one Rogers, neither of whom resided in the state.
    It appeared that the assessment was upon property used in and about the business of smelting lead ore at the furnace, and that the property seized and replevied was a part of the property so assessed.,
    The circuit judge charged the jury that if Henry Corwith was the owner of the property, the defendant as such treasurer could not levy upon it to satisfy taxes that were assessed to Chester Olds, and that sucb levy would be no protection to bim, and refused to charge the jury that if the property was levied on for nonpayment of taxes upon the same premises, and that it comprised a part of the personal property assessed to Chester Olds, then the defendant had a right to levy upon the same for the nonpayment of the taxes, and that such levy under his warrant was a full and complete justification and defense.
    The plaintiff had a verdict and judgment, and the defendant brought error.

      Parley Palón, for plaintiff in error.

      Chas. & F. J. Dunn, for defendant in error.
   WhitoN, J.

This was an action of replevin in the cepit, brought by the defendant in error against the plaintiff in error, for two horses, a double harness and two wagons, in the circuit court for Iowa county. The defendant below pleaded the general issue, also property in Chester Olds, and also in N. Corwith & Co.; each of the special pleas setting up property in third persons, contained a traverse of the plaintiff’s property. The defendant also filed a notice that he would prove on the trial that the property taken by the defendant was taken by levy and distress, by virtue of a tax list and warrant issued by the clerk of the town of Highland, in the county of Iowa, and directed to the defendant, as treasurer of the said town, for collection, being the state, county and town taxes for the year 1849; that on the list of taxes so delivered to the defendant for collection, was a large amount of taxes against one Chester Olds, in whose possession the said goods and .chattels, or a part of them, were at the time of the assessment; that if said Olds . was not the owner of said goods and chattels, he was acting as the agent of the plaintiff, and that the property so assessed was the plaintiff’s, but assessed to Olds, the agent, etc. By the bill of exceptions it appears, that at the trial in the circuit court, after tbe plaintiff had proved the taking of the property by the defendant, the defendant introduced the assessment roll, tax list and warrant, which the plaintiff admitted to be genuine, and also that the warrant was in accordance with the statute. The tax list showed that a large amount of real and personal property was assessed to Chester Olds, and that the gross amount of state, county and town taxes upon the property for the year 1849, was $188.85. Olds, who was a witness for the plaintiff, to prove the taking of the property by the defendant, testified on his cross-examination, that Nathan Corwith and Henry Corwith,, of Galena, and one Rogers, of New York, were partners, doing a general mercantile business, making advances on lead, and giving bills of exchange, etc.; that the name of the firm was N. Corwith & Co., but he thought the furnace, and the property there, were the individual property of Henry Corwith. The witness further testified that the property was in his possession, as the agent of Henry Corwith, as he supposed, at the time the assessment was made; that the assessment of the personal property was made upon the valuation of the mineral and lead about the furnace on that day (1st of June, 1849), as well as all the personal property used- in the smelting business, including the teams, wagons, etc., and that the same identical property replevied was a portion of the property so assessed. The witness further testified that the defendant had asked him .for the taxes two or three times; that at last, he would wait no longer, and went to the barn and took the property for the taxes; that the plaintiff came in a few days, and paid the taxes on the land, and offered to pay the taxes on the property which the defendant had taken, which is the same property replevied. The witness testified to some other facts, but they are not material.

The cause was then submitted to the jury, who were instructed by the court, that if they found from the evidence that Henry Corwith was the owner of the property, the defendant, as treasurer of the town of Highland, could not levy upon it, to satisfy taxes that were assessed to Chester Olds; to which the counsel for the defendant excepted. The counsel for the defendant then requested the judge to charge the jury that, if they should find from the testimony that the property which was levied upon by distress for the nonpayment of taxes, was upon the same premises, and that it was a part or portion of the personal property so assessed to Chester Olds, the defendant had a right to levy upon it for the nonpayment of the taxes. This instruction was refused by the judge, to which the defendant excepted. The jury gave a verdict for the plaintiff, upon which the court rendered a judgment.

We are satisfied that the circuit judge erred in the instructions be gave to the jury, and also in withholding those asked for by the defendant’s counsel. Sec. 11 of ch. 15 of the revised statutes, provides that all goods, wares and merchandise kept for sale in this state, all stock employed in any of the mechanic arts, and all capital and machinery in any branch of manufacture or other business within this state, owned by a corporation out o.f this state, or by any person or persons, whether residing in or out of the state, shall be taxable in the town or ward where the same may be, either to the owner thereof, or to the person who shall have charge of or possession of the same.”

The testimony of the witness Olds tended to show that the property which was assessed to him and levied upon, was employed in the smelting business. If this was so, it clearly falls within the description of property which may be tayed to the person who has the possession of it, though he is not the owner.

By the terms employed in the section of the statute above quoted, it was evidently intended by the legislature to subject to taxation, in the town or ward where they might be found, all kinds of property used for the purpose of carrying on manufacturing or other business; and if the owner is not in possession of the property, to permit it to be taxed to the person who shall have the possession, and to allow it to be levied upon and sold to enforce the collection of the tax in the same manner as though taxed to the owner.

In this case, the witness Olds was in possession, and the jury should have been instructed, that if the property was used in the prosecution of the plaintiff's business, or that of N. Corwith & Co., it was properly taxable to Olds, and might be levied upon and sold in the same manner as if it had been taxed to the real owner. It was insisted, on the part of the defendant in error, that the testimony showed that the property, or a portion. of it, was doubly taxed, once as land and once as mineral or lead, which had been taken from the land and converted into personal property. We do not think that the testimony establishes this fact. The testimony of Olds tended to show that the assessment of personal property was made upon a valuation of the property as it was on the first day of June,, 1849. The statute provides that both real and personál property shall be assessed upon a valuation made as of that day (R. S., cb. 15, sec. 16), and if, at that time, minerals have been removed from the land and converted into personal property, they may be taxed as such. R. S., ch. 15, see. 3.

The view we have taken of the matters submitted, renders it unnecessary to notice the other points made by the plaintiff in error.

Judgment reversed.


author: Howe, J.

text:
    Martin and another vs. Martin.
    JoindeR os’ Parties. — Joint contractors for doing a specific piece of work cannot each, sue for a specific part of the compensation, but in respect to a joint contract, must sue or be sued jointly.
    (3 Chand., 303.)
    ERROR to the County Court of' Walworth County.

      Samuel A. & John H. Martin sued John Martin for work and labor in threshing wheat, claiming $6.25. The defendant pleaded the general issue, and gave notice of setoff to the amount of $7.50. The justice rendered judgment against the plaintiffs for the reason that they did not aver and had not proved that they were partners. They removed the case to the county court by certiorari, where the judgment of the justice was affirmed, and thereupon brought a writ of error. It appeared from the testimony that one Charles Martin was authorized by the defendant to employ whomsoever he pleased to thresh his wheat; that he employed the plaintiffs to do it, and that they did some threshing under that engagement.

      U. D. Meacham, for plaintiffs in error.

      A. I). Smith and B. B. Menzie, for defendant in error.
   Howe, J.

The plaintiffs sued before a justice of the peace in Walworth County, to recover the sum of six dollars and twenty-five cents, as a compensation for threshing one hundred and twenty-five bushels of the defendant’s wheat, in September, 1848. Judgment was rendered for the defendant by the justice, and that judgment was removed by certiorari into the county court of Walworth county, where a similar accident befell the plaintiffs ; the judgment of the justice was there affirmed.

This last judgment is now brought before us upon error alleged therein.

Charles Martin, an uncontradicted witness, testified before the justice, that, being commissioned by the defendant to employ whomsoever he pleased to thresh his wheat, he engaged the plaintiffs. He swears that he knew of the plaintiffs doing, some threshing for the defendant under that engagement. The plaintiffs have sued for the value of that threshing, and in the opinion of this court, the plaintiffs ought to be paid for it.

What engagements these plaintiffs were under to each other, what relations they sustained toward each other— whether they were copartners or a corporation, joint tenants or tenants in common, it is not necessary for us here to inquire. But as the plaintiffs were the parties who contracted and who have performed their contract, we are well satisfied they are the parties who ought to recover.

The defense urged against this claim has no better foundation in rules of law than it has in the principles of justice. There is no ground for the pretense that when two men engage to do the same piece of work, that each is entitled to sue for a specific portion of the compensation. On the contrary, it is an inflexible rule of law, that joint contractors, must sue and be sued jointly.

Upon the argument indeed, it was denied that the case furnished evidence of a joint contract; and it was insisted that although the witness says he “ engaged the plaintiffs to thresh the defendant’s wheat at five cents per bushel,” we are not to understand he engaged them jointly. The answer is evident. There was but a single and entire work to be accomplished — like the building of a wagon or the making of a coat, to-wit: the threshing of a specific lot of wheat; and had the witness testified that he engaged the plaintiffs severally to do that job, we could hardly forbear to pronounce him either a perjured witness, as having sworn falsely, or as a dishonest man, as having made two several contracts for the performance of one and the same task.

But if it will not answer simply to say that this language conveys the idea of a joint if not a several contract to the common understanding of every one — if its adequacy must be mathematically demonstrated — that may be done by the use of the following equations:

The term engage” is used by the witness in the sense of agree with or bind by contract.

That clause then of the testimony, “ I engaged the plaintiffs,” is equivalent to saying, “ the plaintiffs agreed to do the threshing.” The plaintiffs were John H. and Samuel A. Mar tin, and tbis clause, “ tbe plaintiffs agreed to do the threshing,” is equivalent to saying, they agreed to do it. I suppose, then, the contract to be reduced to writing, in which form of evidence the plaintiffs would speak for themselves, using a pronoun of the first person, instead of the third, and we should have the following equivalent formula : “We agree to do the threshing,” etc.; and it will hardly be denied that the expression, we agree to do,” or “ we agree to pay,” is evidence of a joint, and not a several contract.

And I cannot forbear to remark that, had the different courts which have passed upon tbis matter below, been as fearless to-espouse the equities of this case, which, as they are presented on this record, are most apparent to the observation of all, as they were earnest to vindicate principles of law which had no actual existence, the plaintiffs would not have been forced to bring into this court of final resort, a claim so trifling in amount, as that nothing but the sacred rights of labor would justify the prosecution of it; and seemingly, so just as that honesty must need be ingenious to conceive a defense to it

The judgment of the county court is reversed.


author: KNOWLTON, J.

text:
    Caughey and another vs. Vance.
    1. JURISDICTION — Justice’s Return — Waiver.—Where the original return of a justice on appeal states that the judgment appealed from was rendered June 17, 1848, and his amended and further return states that the cause was tried and submitted the 14th of the following August, and judgment rendered on the 17th day of the same month, and the affidavit and recognizance for appeal were perfected the 27th of June previous, and it further appeared that an adjournment of the cause had taken place, which could have lawfully been made to June 14, hut not to August 14: Reid,

    1. That a motion to dismiss the cause in the appellate court on the ground it had been adjourned beyond the jurisdiction of the justice, was properly denied, and upon a reasonable interpretation of tbe entire record, it must be held that tbe justice by clerical error wrote “ August ” for “ June.”
    3. That tbe party making such motion, having at a previous term appeared and obtained a continuance of the cause, had waived the right to make such objection.
    3. Practice. — Where there is no issue joined before the justice, or the pleadings are informal, the appellate court may allow the parties to plead or file new pleadings.
    8. Appeal — Practice. — Where on an appeal from justice’s court the plaintiff is allowed to file a new declaration, the defendant must plead thereto instanter or obtain further time, and if the defendant suffers default, his remedy is by application to set it aside, and to be allowed to defend.
    4. Same— Waiver.— Where the defendant is defaulted for not pleading in season, a motion to arrest the judgment rendered for the plaintiff is a waiver of any irregularity in taking such default.
    (3 Chand., 308.)
    ERROR to tbe Circuit Court for Green County.
    The case is stated in tbe opinion of tbe court.

      Bingham & Knapp, for plaintiffs’in error.

      B. Dunwiddie, for defendant in error.
   KNOWLTON, J.

This was an action of assumpsit upon a promissory note for tbe sum of tbirty-one dollars, and was commenced before a justice of the peace of Green county. Tbe summons was issued on tbe 7th of March, 1848, and made returnable on tbe 16th of the same month. The writ was served on the 8th, the officer making the service signed the return, “M. C. Sutherland, deputy sheriff.” The defendants below, the plaintiffs in error, took depositions before the justice. Judgment was rendered by the justice against the plaintiffs in error, on the 17th of June, 1848, as appears by the transcript of the justice in his return to the appeal. The justice in return to a rule for a further return as to the day on which the case was tried, states that the cause was tried and submitted on the 14th day of August, 1848, and that he rendered judgment on the 17th of August. The record shows that the affidavit and recognizance for the appeal were made and filed with the justice on the 27th day of June, 1848. At the March term, 1S49, of the circuit court, the appellants moved to dismiss the action “because the justice had discontinued the case before the time of rendering the judgment thereon.”

This motion was overruled by the court. The cause was then continued, on the application of the appellants until the next term of the court. On the second day of the September term, 1849, a jury was impaneled to try the cause, and then withdrawn, and a rule entered against the justice for a further return, and leave given to amend the pleadings in the case. On the third day of the term, the justice made his further return, and on the same day, the plaintiff below filed his formal declaration in writing, upon a promissory note signed by the defendants, dated August 2, 1847, payable March 1, 1848, for thirty-one dollars. The defendants interposed no plea, and the note was referred to the clerk for the assessment of damages, who reported the amount due thereon to be $85.52. On the fourth day of the term, the defendants moved to arrest the judgment, and assigned for cause that the circuit court had not jurisdiction of the case. This motion was overruled by the court, and judgment rendered upon the assessment of the clerk. To reverse this judgment, the plaintiffs in error have removed the case to this court.

The first error assigned is, that the circuit court erred in overruling the motion of the plaintiffs in error to dismiss the action, because the justice had discontinued the case before judgment.

Was there any foundation for this motion, in point of fact? It appears that the case was adjourned for just ninety days. By the well-settled rule of computation, this was permissible by the statute. The judgment was on the 17th day of June, 1848, three days after the cause was tried and submitted. The justice, by the statute, had a right, to take three days to render judgment, so that the proceedings appear regular, and no discontinuance had taken place, unless we assume (what was not contended for in the argument) that the cause was tried and submitted on the 14th day of August, 1848, and the judgment rendered on the 17th, as returned by the justice in his response to the rule for a further return as to this fact. But how can we do this, when his first return (the transcript from his docket) shows that the judgment was rendered on the 17th of June previous, and that the plaintiffs in error filed with the justice their appeal papers on the 27th day of June, 1848 ? Blow could it be possible for these men to appeal from a judgment nearly two months before it was rendered? It is obvious that the justice committed a clerical error, and wrote August instead of June. The circuit court, then, was right in overruling the motion. The court was bound to take the whole-record, and give it a reasonable interpretation. But suppose the court erred in overruling the motion, that error was waived by the appellants afterwards appearing, moving for, and obtaining a continuance of the cause.

The next error assigned is, “ that the circuit court erred in allowing the plaintiff to file any declaration in the cause, other than the one returned by the justice.” This assignment appears to be based upon the 7th section of the statutes of 1889, p. 888, which provides that “the issue before the justice shall be tried before the court above, without other or further new declaration or pleading, except in such eases as shall be otherwise directed by the court.” The proposition must be narrowed down to this, that unless an issue was joined before the justice, the court could not order any further pleadings. In short, that unless there was an issue below, the cause could not be tried on appeal. By the act of January 80, 1844, sec. 4, it is provided that “ any person aggrieved by any judgment rendered by a justice of the peace, under the act of which this is amend-atory, when the judgment shall exceed fifteen dollars, may appeal by himself or agent, to the district court of the county where tbe judgment was rendered.” Now an appeal is absolutely given to any person aggrieved, when the judgment exceeds fifteen dollars. These two things concerning the right to appeal, become absolute; nothing more was necessary to give the right. There is no qualification as to the issue. Now what benefit would it be to a party to take an appeal, when he-could not have an opportunity to re-try the cause ? It would be worse than useless. If the appellant could claim a trial on appeal, it is obvious that the appéllee must have the same right. The right must be reciprocal. We must so construe this act of 1844, and the law of 1839, being in pari materia, that both may if possible stand. If this cannot be done to the full extent, we must approximate as closely to it as possible. The meaning of the provision of 1889 will then be, that the cause on appeal must be tried on the same issue as before the justice, when an issue was joined there, unless the court should order further pleadings, and when there was no issue, that it must still be tried, else there could be no use of appealing as before intimated; and as the court became legally possessed of the cause by the appeal, it could make any order as to the pleadings that was necessary, in order properly to adjudicate the matter in controversy between the parties.

We are, therefore, of opinion that the circuit court committed no error in allowing the plaintiff to file a declaration, under the order to amend the pleadings. The defendants might have pleaded to the declaration, under this order, had they chosen to do so, but they appear to have stood by and pertinaciously refused.

The next error assigned is, that the “ circuit court erred in defaulting the plaintiffs in error on the same day on which the defendant in error filed his declaration.” This state of the case no where appears by the record. But suppose it to be true, would there be any error in such order of the court? We think not. There is nothing to show that there was any order of the court as to the time within which the pleadings should be amended, or within which the defendants should plead. They should have pleaded immediately upon the filing of the declaration, or shown cause, and obtained time to plead thereto. There was no hardship in requiring them to do this, as the plaintiff merely reduced his cause of action to form. It was upon a promissory note. They knew that this note, which was on file, was the substance against which they were called to defend. They were not met in this declaration with any new cause of action, whereby they could have been surprised. If it were so, an application for time to plead should have been made, and if a proper case was presented, it is to be presumed that the court would have granted the request. This, as a general rule, appears reasonable, and we are not aware of any statute, or common law rule, or rule of practice in this state, with which it would conflict.

If, however, the defendants had suffered any wrong by this action of the court, whereby they felt aggrieved, it was their duty to present the facts to the consideration of the court, and move to set aside the default and to permit them to come in and defend. Nothing of this kind was done. From all that appears, it is quite evident that the defendants had determined not to plead or defend the action, but to rely on reversing the judgment upon the ground that the circuit court had erred in overruling their motion to dismiss the action for want of jurisdiction, for the reason assigned; that the cause had become discontinued before judgment rendered by the justice. If they chose so to do, they must abide the result of their election. But admitting, for the argument, that this was error in the court; another difficulty presents itself, which is, that the plaintiffs, after the default was entered, appeared and moved the court to arrest the judgment for want of jurisdiction of the case. No complaint is there made about the default, but they ask the decision of the court on a point before decided, excepted to and saved by bill of exceptions.

This act of the defendants, we are of opinion, was a waiver of the previous error complained of, admitting that sucb was error. But we are of opinion that there was no error in the decisions and rulings of the circuit court. We have disposed of the fourth error assigned, as it is based upon the same facts as the first.

We see no reason for reversing the judgment of the court below ; it must therefore be affirmed, with costs.

Judgment affirmed.


author: Khcwlton, J.

text:
    Meacham vs. Batchelder and others.
    PARTNERSHIP — Joint LIABILITY. — In an action against two or more on an acceptance byone of them, an order to establish a joint liability, it must be shown that they were partners and that the acceptance was for the Arm, or that they contracted as joint debtors.
    (3 Chand., 316.)
    EBROR to the County Court of Walworth County.

      Meacham brought an action of assumpsit against Geo. Batch-elder., Amplias Ghamberlain and Henry Bradley, upon an order drawn on them in favor of the plaintiff by one Lewis, which is set out in the opinion of the court. The material facts are contained in the opinion of the court.

      Winsor & Smith, for plaintiff in error.

      L. Coiudery, for defendants in error.
   Khcwlton, J.

This was an action of assumpsit, commenced in a justice’s court, by the plaintiff in error against the defendants in error. The declaration was for money had and received by the defendants for the use of the plaintiff, and also an order in these words:

“Wm. Batchelder & Co. Pay U. D. Meacham in goods out of your store, the principal due on a note Jesse Meacham bolds against me, and charge to my account; said note was given to one Ward, of Troy, a merchant.
“ Ellchorn, May 15, 1845. (Signed) S. S. Lewis.”
This order was indorsed on the back “ S. S. Lewis, order.”
The note referred to reads as follows:
“ $14.69. Tjroy, January 21, 1845.
“ Thirty days after date, for value received, I promise to pay O. H. Ward, or bearer, fourteen dollars and sixty-nine cents, with interest from date. (Signed) S. S. Lewis.”

The defendants admitted the drawing of the order, and that it was received by the defendant, Chamberlain, and that he put the above mentioned indorsement thereon ; that it was received by Chamberlain at or about the time it was drawn. The plaintiff introduced proof on that branch of the declaration relating to money had and received; other proof on the part of the plaintiff and defendants was given, not necessary to advert to in order to dispose of the cause in this court. The cause was submitted to the justice, who rendered judgment in favor of the plaintiff for two dollars and fifty cents damages and costs, the amount of money had and received. The plaintiff then removed the cause into the county court of Walworth county, by writ of certiorari, where he assigned for error that the justice erred in not allowing the plaintiff the amount of the order in his said declaration set forth. The county court at its March term, 1850, affirmed the judgment of the justice. To reverse this judgment this writ of error is prosecuted.

The only point properly presented for the consideration of this court is, whether the plaintiff by his proof was entitled to recover of the defendants the amount of the order in controversy. The solution of this matter depends upon the fact whether there was any joint liability established against the defendants by the evidence, either as copartners or as joint debtors, as to said order. The making such proof was essential in order to enable the plaintiff to recover therefor. No averment appears in the declaration that these defendants were or had been partners. He was therefore bound to prove that the defendants jointly accepted or promised to pay this order, or else prove that the defendants were partners, so that the act of one in accepting the order would have bound the other members of the firm. From the evidence returned in the record, it is obvious chat the plaintiff in no way established a joint liability against the defendants. The county court, therefore, properly affirmed the judgment.

The judgment must therefore be affirmed, with costs.


text:
    Streeter vs. Frank and another.
    OFFICER, — Principal and Agent. — A., being a constable, bad an execution against S.¡ issued on a judgment from which he was perfecting an appeal and stay of proceedings, offered to receive the necessary papers and deliver them to the justice, and receive a certificate of the allowance of the appeal. He received the papers for that purpose, and delivered them to the justice, but refused to receive the certificate of allowance of appeal, and proceeded to collect the execution by seizure of the property of S. In an action against the constable and the judgment creditor for such seizure, held,

    1. That A., though he held such execution as constable, might lawfully become the agent of 8. for the purposes aforesaid; and, having accepted the agency, was bound to execute it in good faith.
    2. That in failing to execute it under such circumstances, he committed a fraud on S., for which he was liable in damages; that the seizure was wrongful, and the execution, if fair on its face, would be no protection to him.
    (4 Chand., 9.)

      ERROR to the County Court of Jefferson County.

      Streeter brought an action of trespass against Frank and Allen for taking and carrying certain of his goods and chattels, and the defendants pleaded the general issue ; Allen giving notice that he took the property in question as a constable by virtue of a writ of execution, in an action of re-plevin between Streeter and Frank, which commanded him to take the same and deliver it to said Frank. Judgment was given in favor of the plaintiff and against Allen for damages and costs, and he appealed to the county court. At the trial in the county court, the jury were instructed that in order to stay the proceedings of the officer on the execution, the certificate of the justice that an appeal had been allowed should be served on the officer; that the certificate of the justice was the evidence of the allowance of the appeal, and if no such certificate was served on the officer, then they should find for the defendant. And the judge refused to instruct the jury that, if Allen knew of the appeal or waived notice of it, and took the property, they should find for the plaintiff. And in the county court verdict and judgment were given for the defendant Allen, and Streeter prosecuted a writ of error.

      T. & J. Prentiss, for plaintiff in error,
    argued that as Allen, by his promise, induced the plaintiff to intrust to him the perfecting of the appeal, and the procurement of a certificate of its allowance, he was estopped from setting up the execution as a defense or the want of service of such certificate; that he could not be allowed to take advantage of his own wrong, and thus perpetrate a fraud on the plaintiff. They cited 8 Wend., 483 ; 1 Greenl. Ev., 207.

      Collins, Smith & Kissam, for defendant in error,
    contended that Allen was protected by the execution and was obliged tc execute it, and cited 9 Cow., 140; 24 Wend., 485 ; 5 Hill, 440; and that the allowance of an appeal after execution issued did not necessarily stop the officer in the discharge of his duty. R S., ch. 88, sec. 232.
   KNOWLTON, J.

It appears in tbis case, that the defendant, William T. Allen, was a constable, and held an execution against the plaintiff, Aaron Streeter, who was perfecting an appeal from the judgment on which execution issued, when Allen demanded payment of the execution, which bore date December 10, 1851, issued upon a judgment rendered the same day in an action of replevin. This was the next day, December 11. The attorney of Streeter informed Allen of the fact. Allen then told the said attorney that he would take the papers for the appeal to the justice who rendered the judgment, and that nothing more should be done on the execution. The attorney replied to Allen, that unless he was perfectly willing to take the papers to the justice and receive from him a certificate of the allowance of the appeal, he would send a man specially for that purpose. Allen replied that he was going directly past the house where the justice lived, and could just as well do the business as not, and would do it; and would take the certificate from the justice, and see that no further proceedings should be had. Allen took the papers and delivered them to the justice, .but refused to take the certificate of the allowance of the appeal. He then proceeded to execute the execution, and returned it satisfied on the 15th of December.

Allen agreed to act as the agent of Streeter. There was no law against Streeter appointing him his agent, and none against Allen accepting the agency. Having accepted it, he was bound to execute it in good faith. In failing to perform his trust, and proceeding to execute the writ, he committed a fraud in fact and in law upon his principal, and must respond in damages. He cannot be permitted to take advantage of his own fraud.

It is true that an officer is protected by process regular and legal on its face, whatever he may have heard going to impeach it. The writ is his protection ; but this rule cannot apply in this case, where fraud is so apparent.

We are of opinion that the court below erred, and that its judgment should be reversed.

Judgment reversed.


author: Hubbell, C. J.

text:
    Atchison and others vs. Rosalip and another.
    1. Judgment Docket — Evidence.—The judgment docket of the district court, being a court of general jurisdiction, is prima facie evidence of the validity of a judgment before a justice of the peace, a transcript whereof has been docketed in such court.
    2. Same. — It is not necessary that such transcript should show the jurisdiction of the justice, but a want of jurisdiction may be shown when any rigjit is claimed under it.
    3. Garnishee Proceedings — Judgment.—A proceeding by garnishee process is the commencement of a separate suit by the creditor against the garnishee, and it should be entered, conducted and judgment rendered therein as in a separate suit. A mere order in the original case that the garnishee stand liable for the amount of the judgment in that suit, is not a valid judgment against the garnishee.
    4. Sheriff’s Deed. — In order to sustain a sheriffs deed as a valid conveyance, the parly claiming under it must show a valid judgment against the former owner, an execution issued thereon and a sale by the sheriff.
    5. Attachment — Judgment. — In a suit by attachment against a debtor not served with process, and who does not appear in the action, the judgment rendered binds only the property attached.
    6. Same. — A transcript of a judgment rendered in a suit by attachment before a justice of the peace, in which the defendant is not served with process or does not appear, does not become a lien on the real estate of the debtor, and a sale of such real estate upon execution issued out of the district court, upon such judgment after being docketed therein, is void and without authority of law.
    7. Justice’s Judgments — Transcripts. — No judgments except such as are rendered upon service of process or actual appearance can be transferred to and docketed in the district or circuit court, so as to become a lien on the real estate of the debtor.
    (4 Chand., 12.)

      ERROR to the Circuit Court for Grant County.
    This was an action of ejectment brought against Rosalip & Thiers for certain lands in Grant County by Caroline V. Atchi-son, John 8. Atchison and Charles B. Atchison, claiming as heirs at law of John Atchison, deceased, in whom it was proved that the legal title was vested March 10, 1848. The defendants claimed title by virtue of a sheriff’s sale upon an execution issued upon an alleged judgment rendered against the plaintiffs ’ ancestor, John Atchison, in justice’s court, in favor of one Baker, a transcript whereof had been filed and docketed in the district court for Grant county.
    The suit in justice’s court was commenced by attachment, and E. B. Washburne was summoned as garnishee of said Atchison, but it appeared that no notice of the action had been given to Atchison, except by publication in a newspaper pursuant to the statute. Neither the defendant nor his garnishee ever appeared, but on the 16th of December, 1843, after two adjournments, judgment was rendered against Atchison by default, for fifty dollars damages and fourteen dollars and ninety-six cents costs, and as to Washburne, the garnishee, the following memorandum was entered in the record of the suit against Atchison, to wit: “It is further considered and adjudged by the court, that the said E. B. Washburne, summoned as garnishee, and not appeared, and due proof being given of his having moneys of the defendants in his hands of over and above this judgment, it is by the court considered and adjudged that the said E. B. Washburne stand liable for the amount of this judgment (the one by default against Atchison), and that the plaintiff may have execution against the said garnishee.” This judgment was docketed in the office of the clerk of the district court, as a judgment against said Atchison, and Washburne as garnishee, as stated in the opinion of the court, and an execution was issued January 24, 1844, against both of them, out of said court, to the coroner of Grant county, and upon which he sold the real estate in question to Baker, the plaintiff in the execution, on account of which a deed was executed to said Baker, December 12, 1846, and February 26, 1848, Baker executed to the defendants a conveyance of the premises in question, and under which they entered and claimed to hold. To the defendants’ title it was objected, among other things, that the justice had no jurisdiction to render the judgment in question, for want of personal service on the defendant, or appearance by him, but the circuit judge charged the jury that the transcript docketed in the district court was conclusive and sufficient, and refused to instruct the jury that the judgment was void for want of jurisdiction; and also refused to instruct the jury that the coroner’s deed and anterior proceedings were void.
    The defendants had a verdict and judgment, and the plaintiffs brought their writ of error.

      Hollister & Lahin, for plaintiffs in error,
    cited TJarl v. Gamp, 16 Wend., 566; Picquet v. Swan, 5 Mass., 43; Shriver's Lessee v. Lynn, 2 How., 43; Green's Heirs v. Breckenridge’s Heirs, 4 Mon., 544; Bloom v. Burdick, 1 Hill, 139; Bigelow v. Stearns, 19 Johns., 40; Hollingsworth v. Barbour, 4 Pet., 470, to show that the judgment relied on to support the sheriff’s sale was void.

      W. B. Bicldlecome, for defendant in error,
    on the same point, to support the judgment, cited Jackson v. Jones, 9 Cow., 182; Jackson v. Tuttle, id., 233; S. 0., 6 Wend., 213; id., 666; 1 Rawle, 223; 2 Cow., 506; 5 Wend., 292; Green v. Sarmiento, 1 Pet. C. 0., 74, 82 ; 7 Cranch, 481; 3 Wheat, 234; McRae v. Mattoon, 13 Pick., 53.
   Hubbell, C. J.

The defendants in error claim title to a large amount of real estate under a sheriff’s deed. To establish that title in the court below, it was necessary to show a valid judgment, an execution issued thereon, and a sale by the sheriff. The principal question discussed before us was whether a valid judgment had been shown in the district court from which the execution issued. The docket of the late district court of Grant county was produced in evidence, and the defendants in error offered to read from it the entry of a judgment by transcript, in the following words:

Enos S. Baker v. John Atchison. E. B. Washburne, garnishee.
“Damages...$50 00
“ Costs. 15 96
$65 96
“ Transcript from Justice Tompkins. Filed Dec. 27, 1848.”

Had the proof rested here, there would be no doubt that, prima facie, a valid judgment was made out. A transcript from the docket of a justice of the peace, in this form, is substantially sufficient to warrant the clerk of the court in entering the judgment required by the statute. R. S., 1839, 830, 841; 9 Cow., 182; 6 Wend., 666.

These are cases directly in point, decided by the highest-courts of the state of New York, from which the statute of the late territory was derived. It is not necessary that the transcript should show the jurisdiction of the justice. All this is presumed in the first instance. But want of jurisdiction is a fact that may be shown, whenever any right is sought to be established under the judgment. 8 Cranch, 9 ; 5 Wend., 148. and cases cited and commented on by Mabcy, J. The full transcript of the docket of the justice, introduced by the defendants in error, shows a fatal irregularity in the proceedings. Suit was commenced, by attachment, against John Atchison and the rights and credits of the defendant, in the hands of E. B. Washburne, were attached and Washburne was summoned as garnisheel A proper judgment was rendered by the justice against the principal debtor. The entry of final judgment against the garnishee appears on the transcript, as a part of the proceedings in the suit against Atchison, and is in these words: “It is by the court considered and adjudged that the said E. B. Washburne stand liable for the amount of this judgment, and that the plaintiff may have execution against the said garnishee.” This is a mere order that he stand liable to pay the judgment against the principal debtor. The statute is as follows: “ All issues between the plaintiff and garnishee shall be tried as ordinary issues between plaintiff and defendant, and costs may be adjudged against either party, as in ordinary cases. And if, upon the trial of any such issues, property or effects shall be found in the hands of the garnishee, the justice or jury shall assess the value thereof, and the judgment shall be for the amount in money.” (Stat. 39, page 338, sec. 15.)

The docket of the justice ought to have disclosed the entry of a separate suit, and separate proceedings against the garnishee; and there should have been a “judgment as in ordinary cases.” None of these provisions of the statute having been complied with, the proceeding was void for irregularity. There was o judgment in the justice’s court, which could be sent by transcript to the district court, and entered therein in pursuance of the statute for that purpose. But again, there is another difficulty in the case, which was not the subject of discussion in the court below, but which this court is required to notice. The suit, by attachment, against John Atchison, was without personal service, and was in the nature of a proceeding in rem. The justice’s judgment, had it been regular, would have bound only the property attached in the hands of the garnishee.

I am not aware that this point has ever been expressly decided, either in this court or in the supreme court of the late territory. But the general principle seems to be clear, and is sustained by authority. 9 Howard, 346.

Title was attempted to be made to a lot of land under a sheriff’s deed, upon a sale made on execution, in pursuance of a decree of the court of chancery, in the state of Ohio. The facts were the same as in this case, except that there, the county court, acting in equity," under the statutory provision, obtained jurisdiction of tbe property of the defendant by advertisement The supreme court of the United States held that there was no jurisdiction acquired in respect to the person or the property generally, of the defendant, and that the decree could only affect the property, which was specifically, the subject of that proceeding, it being in the nature of an action in rent. And the court remarks, that if the land in question could be made subject to such a procedure, then the special jurisdiction, given by the statute is converted by construction into a general proceeding against the property of nonresidents, by a mere publication of notice.

The property of an individual is subject, in a certain sense, to the law of the state where it is situated. It is liable for taxes’and to such special proceedings against it as the law shall authorize. An attachment may be laid upon it, and it may be sold in satisfaction of an established claim, and the legislature may, perhaps, subject other lands to the payment of the judgment on the attachment, after the sale of the lands first attached.”

These are sound principles, and must receive the sanction of every enlightened court. Statutes conferring jurisdiction against the property of absent and nonresident defendants, without personal notice of the proceeding, are not to be extended by construction. The right of parties to appear in court, and defend agaiqst all suits, affecting their pecuniary rights and interest, is of a sacred character, which cannot be denied, except in peculiar cases. Whenever the legislature specifically authorizes such a proceeding, it becomes the court to give effect to its intentions, so far as they are clearly expressed and within constitutional limits. But we are admonished by every consideration for private rights, not to extend the indulgence beyond the rigid limits of each particular case. Assuming the principle to be established, that the proceeding by attachment in the justice’s court, would not have authorized the sale of any property beyond the amount reached by tbe garnishee process and judgment, the ques1%n arises whether the transfer of the judgment by transcript to the district court made it, afterwards, a lien on the real estate of the principal debtor? We think not; especially not in a case like the present. Jurisdiction of the principal debtor was attempted to be obtained by attaching his property, in. the hands of Wash-burne, the garnishee. If there was property there, where is it ? What became of it?

It may have been shown to the clerk of the district court that an execution had been issued by the justice and “ returned unsatisfied.” This the statute required before execution could issue from the higher court. But this throws suspicion on the whole matter, without any further attempt to disclose what became of the property, or whether, in fact, there ever was any.

A judgment entered in the district court for the full amount of the original judgment indicates a wrong somewhere. By such a proceeding, the absent debtor and his heirs are to be divested of a large real estate, without the opportunity of defending against the claim in the first instance, or of appearing at the sale and preventing a sacrifice of the property. It cannot be supposed that the legislature intended any such results from the provision relating to the entry of judgment by transcript. At all events, in the absence of express words reaching and covering the case of judgments obtained before justices, by proceedings in attachment, it must be held that they were intended -to form an exception. A majority of this court are clea.rly of opinion that no judgments, except such as are rendered upon personal service, or actual appearance, can be transferred to the district of circuit cou.rt, and there become a lien on the land of the debtor generally. The judgment was therefore erroneous and void, upon this ground.

Judgment reversed.


author: Per Ouriam.

text:
    Kennedy vs. Baker and another.
    Exemption. —Where a debtor removes his stock in trade, exempt from sale under subdivision 8, sec. 58, ch. 102, R. S., to an auction room, for the purpose of having it sold at auction, he forfeits the exemption given by the statute.
    (4 Chand., 19.)
    ERROR to tbe County Court of Bock County.

      Kennedy brought an action of replevin' against Baker & Haselton for certain of bis goods and chattels, and they justified the seizure and detention for that they were seized and held under process of law to satisfy a debt due from Kennedy to Baker, and that Haselton was an officer having such process to execute and duly authorized to execute it.

      Kennedy claimed that the goods seized were exempt from seizure and sale, as his stock in trade; that they were part of his stock in trade as a grocer. At the trial, it appeared that the plaintiff had removed the goods in question from his place of business to an auction room, to be sold for his benefit, whereupon they were seized by the defendants as before stated. The county court gave judgment for the defendants, and the plaintiff brought error.

      J. B. Bennett, for plaintiffs in error.

      Taylor & Niel, for defendants in error.
   Per Ouriam.

The removal of the goods in question to an auction store to be sold, is evidence that they were no longer to be used as ‘‘stock in trade,” and are not, therefore, protected by the exemption act.

We do not deem it necessary to decide whether goods used, as in this case, are stock in trade within the meaning of that act. The judgment must be affirmed.


author: Whitoh, J.

text:
    Hall vs. Kitson.
    1. Nuisance — Pleading. — In an action on the case for damages sustained by means of obstructing a navigable river, the plaintiff’s declaration should aver and show some special injury or damage which he has sustained, aside from the general injury to the public.
    2. Same. — Where, in an action for damages caused by a public nuisance, the declaration omits to set out a special injury to the plaintiff, but alleges in general terms that he was damnified, the want of an averment of such special injury is cured by verdict.
    (4 Chand., 20.)
    ERROR to tbe Circuit Court for Brown County.

      Kitson brought an action on tbe case against Kail, alleging that he, the plaintiff, before and at the time, etc., was and still is seized of certain premises with the appurtenances, situated on the Menomonee river, a public navigable river; that the defendant had placed and raised a dam across the same, below the plaintiff’s premises, and had for a long time kept and maintained the same, “ whereby the said plaintiff was, and still is, obstructed, hindered and prevented from navigating the said river with his boats and rafts, and from fishing in said river, as he ought to have done, and otherwise might and would have done, to the damage of the plaintiff, etc.” Plea, general issue, with special plea that, by an act of the legislative assembly of Wisconsin territory, approved February 13, 1841, one Farns-worth, his associates, etc., were authorized to build and maintain the dam in question ; that he built the-same under the said authority, and afterwards sold and conveyed the same to the defendant. And issue was taken upon this plea. After verdict for the plaintiff, the defendant moved for a new trial, on the ground that the action was brought to recover damages for the maintenance of a public nuisance, and the plaintiff’s declaration did not state, nor did the proof show, any special damage sustained by the plaintiff. This motion was denied, and the plaintiff had judgment; whereupon the defendant brought his writ of error.

      Martin & Cotton, and E. Q-. Ryan, for plaintiff in error,
    argued that the action was for damages for a public nuisance, and not for special damages to the plaintiff, arising from a public nuisance, and tbat no special or particular injury was set out in the declaration, without which there could be no recovery, and they cited 3 Black. Com., 219; 1 Arch. N. P., 406, 397 ; Lansing v. Smith, 8 Cow., 146.

      J. H. Howe, for defendant in error.
   Whitoh, J.

"We think this declaration good after verdict. The principal reason insisted upon by the plaintiff in error, to show that it does not set out a good cause of action, is the omission to state any special damage to the plaintiff. Special damages being the gist of the action, it is contended that the declaration should have set out some damage peculiar to the. plaintiff, and not that merely, which he sustains in common with others. There is no doubt of the correctness of the position, that it was incumbent on the plaintiff to state in his declaration and prove at the trial that he had sustained special injury by means of the erection of the dam. It would not have been sufficient to state merely that he was deterred from attempting to navigate the river with his boats and rafts by means of the obstruction. In order to enable the plaintiff to recover, it must appear that he was obstructed in fact, when he attempted to pass with his boats and rafts. Lanning v. Smith, 8 Cow., 146, and the cases there referred to. The declaration states that the “ plaintiff was and still is obstructed, hindered and prevented from navigating said river with his boats and rafts,” etc. This, we think, is an imperfect and defective statement that the plaintiff was obstructed in fact, when he attempted to navigate the stream; and a defective statement of a good cause of action is cured by a verdict. 1 Chitty’s Pl., ed. of 1833, 712, 722.

In the case of Pangburn v. Ramsey, 11 Johns., 141, the court lay down the rule as to the effect of a verdict in curing defects in pleadings, as follows : “ Where there is a defect, imperfection or omission which would have been a fatal objection on demurrer, yet, if the issue joined is such as necessarily required, on the trial, proof of the facts defectively or imperfectly stated or omitted, and without which, it is not to be presumed, that either the judge would direct or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict at common law.” We understand this to be the well settled doctrine upon the subject, and, applied to the case before us, it appears conclusive.

The defendant pleaded the general issue and a special plea setting up a right to build the dam, granted to one Farnsworth by an act of the legislature, and a sale and conveyance of it by Farnsworth to him. The plea of not guilty put in issue the facts stated in the declaration, and compelled the plaintiff to prove that he was obstructed in fact, when he attempted to navigate the stream. The failure to state in the declaration when the plaintiff was obstructed, the circumstances attending the obstruction, and the manner in which the damage was caused, which he sustained by being unable to pass, are defects and omissions which the verdict cures. Peckham v. Holman, 11 Pick., 485.

Judgment affirmed.


text:
    Rector vs. Drury.
    1. Evidence — Justice’s Transcript. — Where, in an action for the recovery of a debt, the defense is,' that the defendant has paid the debt sued for pursuant to proceedings against him in justice’s court, as garnishee of the plaintiff, a transcript of the justice’s docket of such proceedings is competent proof to show that the justice had jurisdiction of such garnishee proceedings, so far as it l'eeites the necessary facts to give jurisdiction, without the production of the affidavits on which such proceedings were founded.

      2. Garnishee Suit — Waiveb. — Tile rendition of judgment in an attachment suit, before examining a garnishee summoned upon such suit, is not a discontinuance of the garnishee proceeding; and, although regularly, the garnishee should have been examined before the rendition of such judgment, yet, the objection can be raised only by the garnishee, and if he answers without raising it, it is waived and the defendant in the attachment is bound by it.
    3. Jurisdiction — Waiver.—Whether brothers-in-law are “near of kin,” within the meaning of the statute, ch. 88, sec. 47, so as to exclude a justice of the peace from trying a case to which his brother-in-law is a party, after that fact is made to appe ar, qumre (see, however, Sib-bon’d v. Odell, 16 Wis., 638); but where the objection is not brought forward or made distinctly to appear, he is not deprived of jurisdiction. If the objection exists, it may be waived.
    4. Garnishee — Judgment.—A judgment in garnishee proceedings is a ' protection to the defendant against a suit of his creditor for the same claim, if such proceedings were not void for want of jurisdiction; that they are voidable for error or mere irregularity will not suffice to deprive the garnishee of their protection as a defense.
    (4 Chand., 24.)
    EEEOE to the County Court of Marquette County.
    An action of assumpsit was brought by Rector against Drury in justice’s court, on a note or agreement given by the latter to tbe former for tbe delivery of fifty-one bushels of corn at Drury's barn on demand; tbe corn having been demanded and delivery refused.
    Subsequently, one Clark, in an attachment suit against Hector, recovered judgment against the latter for $21.34; execution was issued on this judgment and levied on fifty bushels of corn in the possession Drury as the property of Rector.

    At the time Clark commenced his attachment suit against Rector, he also commenced garnishee proceedings against Drury, on account of his liability to deliver the corn to Rector as above mentioned. His examination as such garnishee was not had until after judgment had been rendered against Rector in the attachment suit brought against him by Clark, when he disclosed, that at the time of the service of the garnishee processes on him, he had fifty-one bushels of corn belonging to Rector,
      for which Rector held his note due on demand; that the note was given on the same day the garnishee process was issued. Upon this disclosure, j udgment was rendered in the garnishee suit against Drury for the entire amount of the judgment recovered by Clark against Rector in the attachment suit, with costs. The justice rendered judgment for the plaintiff Rector, for the amount claimed by him on the note for the corn, against Drury, and the latter appealed to the county court. Upon the trial in that court, the plaintiff offered to prove that the justice of the peace, before whom the judgment was rendered in the attachment suit against Rector, and in the garnishee proceeding against Drury, founded on it, was a brother-in-law of Clark, the plaintiff therein; the proceedings before such justice having been offered and received in evidence in defense to the present action. Such other facts as are material are stated in the opinion of the court. Judgment was given for the defendant Drury, and Rector brought the case to this court by writ of error.
    Collins, Smith & Kissarn, for plaintiff in error.

      M. W. Seeley, for defendant in error.
   Howe, J.

To an action of assumpsit upon a promissory note, payable in corn, the defendant Drury set up the defense, that the corn had been attached and sold in his hands upon a judgment recovered against him as the garnishee of Rector, in favor of one Clarjc

Upon that defense Drury had judgment in the county court of Marquette county, the record of which is brought here on error.

Numerous exceptions were taken upon the trial below, and several errors are assigned upon the record here, as, 1. The plaintiff objected to the introduction in evidence of transcripts from the justice’s docket, of the judgments recovered by Clark against Rector, and against Drury as his garnishee, until the affidavits should be produced, on which the writ of attachment and tbe garnishee process issued. The court overruled tbe objection, and this is the first error assigned.

We think the learned judge clearly right in overruling that objection. He certainly did not controvert the doctrine contended for by the plaintiff’s counsel here, to wit: that the jurisdiction of inferior courts is not presumed, but must be proved ; he simply held the transcript to be competent proof of that jurisdiction, so far as it recited the facts necessary to give jurisdiction, and in so holding is sustained by the express declaration of our statute. R. S., ch. 98, sec. 87.

2. It was objected that the justice, by rendering judgment against the principal defendant Rector, before he had examined the garnishee Drury, had discontinued the suit as against the latter, and therefore tbe judgment rendered against him by the justice is void. But, however irregular it might have been to examine the garnishee after judgment rendered against the prin.-cipal defendant, we are satisfied that the garnishee alone could object to it. It was no discontinuance. The garnishee might possibly have urged the former judgment as a bar to any examination of him, or to any judgment against him, but by not taking the objection upon the trial, we think the irregularity is waived. It could in no case affect the judgment previously rendered against Rector. The command of the statute is not that judgment should not be rendered against the principal defendant until the garnishee shall have been examined.

The rights and liabilities of Clark and Rector were determined by that first judgment. In the collateral controversy between Clark and Drury, the defendant Rector had no legal interest. He had already been adjudged to pay Clark a certain sum of money, and it was not important to him whether Clark should collect that sum out of property in his own hands or in the hands of Drury. The latter was interested to deny that he had any property in his hands belonging to Rector, but, instead of denying, he admits the fact. He makes the admission without objection, after the irregularity had occurred, and by every rule of practice must be deemed to have waived it. Having waived tbe objection there, he cannot avail himself of it now, a fortiori. The defendant Hector, who was not prejudiced by the irregularity, must be held concluded by the judgment there pronounced.

3. The plaintiff below offered the testimony of a witness to show that the justice who rendered the original judgments against him and his garnishee was brother-in-law to Clark, the plaintiff in those judgments; which testimony was objected to and overruled; which is another of the alleged errors.

It is provided by the 47th section of the 88th chapter of the revised statutes, that if, previous to joining issue in any suit, “it shall appear that the justice is near of kin to either party, then, and'in such case, the said justice shall transmit said suit and all papers appertaining to the same, to some other justice of the same county, who may thereupon proceed to hear, try and determine the same, in the same manner as it would have been lawful for the justice before whom the said suit was commenced to have done.”

It would, perhaps, be difficult to say upon any rule of legal construction that brothers-in-law are near of kin to each other, however their relations may come within the purview of those mischiefs which the legislature intended to guard against. The terms kindred and consanguinity are used by Blackstone synonymously, and are defined as “ the relation of persons descended from the same stock or common ancestor.” 2 Black. Com., 203.

And I believe that all law authors use the term kin or kindred as descriptive of those only who are related by consanguinity. In ordinary speech the word may sometimes be used in a different sense, and as descriptive of those who are related by affinity.

But, whatever may have been the true signification which the legislature intended to give that term, it must be remarked that the command of the statute is not absolute to the justice so related, not to sit in judgment between tbe parties, but it is conditional, “if it (the relationship) shall appear,” be shall transmit tbe cause to another justice; and not then, unless the objection appear before joining issue in the suit. The objection then, clearly, is not fatal to the jurisdiction of the justice, unless it be made to appear. If it exists, it may be waived by joining issue in tbe suit. And if tbe defendant may waive the objection by denying the cause of action, with stronger reason should he be held to have waived it by confessing the cause of action, or by suffering default upon it. After final judgment has been rendered, we think it too late to raise the objection.

Again, it is objected that the judgment of the justice upon the disclosure of the garnishee was for the payment of money, whereas, it should have been for the delivery of the corn admitted to be in his hands, according to the provision of the statute. R. S., ch. 88, sec. 130.

To this objection, it is sufficient to reply that the justice had, as we have seen, jurisdiction of the cause and of the parties, and was thereby clothed with authority to pronounce a right judgment. And I think it was as clearly his prerogative to pronounce an erroneous judgment. If he in fact did so, the judgment might have been avoided, but it cannot be void.

I shall not notice individually the multiplied exceptions taken to the instructions given or refused to be given to the jury by the judge below. "We have discovered no error therein which could have affected the issue of the controversy, and are therefore of opinion that the judgment of the county court must be affirmed.


text:
    Cole and others vs. Clark.
    1. Contract — UNCERTAINTY in.— Where one party contracted with another in writing to put two water wheels, each to drive one run of stone, in the flouring mill of the other, and to “ warrant the same with two hundred inches of water to each wheel, to grind fifteen bushels per hour; ” for $500. Reid, that such contract was too indefinite and uncertain to admit of interpretation as a matter of law, it being impossible to say whether the terms of the contract required one or both wheels to grind 15 bushels an hour, and that the ambiguity, being a patent one, could not be aided by parol proof.
    2. Same.— Where a contract for doing certain work is void for uncertain- . ty, the party rendering service under it may recover as on a quantum, meruit.

    (4 Chand., 29.)
    EEEOE to tbe County Court of Jefferson County.
    The case is stated in tbe opinion of the court.
    Collins, Smith & Kissam, for plaintiffs in error.

      J. J. Enos, for defendant in error.
   Hubbell, C. J.

Clark sued Cole and others in the county court of Jefferson county. The declaration was in assump-sit, containing the common counts only. The only question of import arises on the sealed contract between the parties, offered in evidence by the plaintiff below. It contained, among other clauses, the following:

The said party of the first part, for, etc., covenants and agrees to put in a good workmanlike manner, two water wheels, to drive each a run of stone in the flouring mills (the same that are now in the mill of L. A. Cole & Co., called the Rough and Ready Mills, in said town of Watertown), and warrant the same, with two hundred inches of water to each wheel, to be measured at the bottom of the flume, to grind fifteen bushels per hour, in a style suitable to make good flour; to attach all machinery to said wheels, etc.” “ And the said parties of the second part covenant, etc,, to pay the said Clark five hundred dollars for the completion of said work, in case it' be done, and the mill performs, when completed, according to the above contract.” The county judge charged the jury that they were to be governed by the construction of the contract, and if they found that both run of stone would grind fifteen bushels per hour, the plaintiff had complied with the said contract in that respect.

To this ruling, exceptions were taken by tbe plaintiff in error. It was a case, undoubtedly, where tbe judge was bound, if be could, to construe tbe contract, and his construction was binding on the jury. But this court is unable to concur with the learned county judge in his construction of the instrument. On the contrary, we ai’e all of opinion that it is too indefinite and uncertain to admit of any interpretation as a matter of law. The offer to introduce oral evidence to explain the understanding of the parties was properly rejected. Such evidence is admissible when there is a latent ambiguity, which is made to appear by extraneous facts, and which may be made clear by parol proof. But the ambiguity in this instance is patent; it appears on the face of the instrument; and it arises not from the use of words of art, or technical phrases, nor from the existence of any custom or usage, but from the failure of the parties so to use common and plain words as to express any definite idea. They have not told us themselves what they did mean; whether each run of stone was to grind fifteen bushels per hour, or whether both were to do it, and so their instrument is wholly void. Boardman v. Ford, 6 Peters, 345.

The judgment of the county court must be reversed for this cause, and the case must go back for a new trial. The plaintiff then can recover quantum meruit upon the common counts, and no more.

Judgment reversed, with costs.


author: Larrabee, J.

text:
    Brown vs. Pratt and another.
    Appeal — Affidavit. — Where the statute required that an affidavit for an appeal from justice’s court should state that “ the appeal is made in good faith,” etc., an affidavit stating that “ the arpplieation for an appeal is made in good faith,” etc., is insufficient and fatally defective.
    (4 Chand., 32.)

      ERROR to tbe County Court for Columbia County.
    Action on tbe case before a justice of tbe peace, and tbe plaintiff bad a verdict and judgment for one hundred dollars, and costs. Tbe defendants appealed to the county court for Sauk county, and upon trial a verdict was found for the defendants, which was set aside and a new trial granted. The venue was changed to Columbia county, and a motion was then made to dismiss the appeal for insufficiency of the affidavit for appeal, it stating that the defendants’ “ application in this suit for an appeal is made in good faith and not for the purpose of delay.” The court denied the motion, and the trial proceeded, when after the close of the plaintiff’s testimony, on motion of the defendants, the court nonsuited the plaintiff, and he brought a writ of error.

      W. H. Clark, for plaintiff in error.
    Collins, Smith & Kissam, for defendants in error.
   Larrabee, J.

The affidavit made and filed with the justice was not the one required by the statute. In all cases of appeal from a justice, the affidavit must be that the appeal is made in good faith,” etc., and not that “ the application for an appeal is made,” etc.

The county court should have granted the motion to dismiss, for this reason.

The judgment is therefore reversed, upon this ground. We do not deem it necessary to investigate the cause further.

Judgment reversed.


author: Knowlton, J.

text:
    Keeler vs. Woodward.
    ACTION — Judicial Officer. — A judicial officer acting within the scope of his jurisdiction cannot be held liable in damages for an erroneous act or decision. So held in an action against a justice for refusing to set off one judgment against another rendered before him (see R. S. ■1849,roh. 88, sees. 59, 60), and for issuing execution on the latter judgment op which .the plaintiff’s property was seized and sold.
    (4 Chand., 34.)

      ERROR to the County Court for Walworth County.

      Keeler brought an action on the case against Woodward, a justice of the peace, alleging in substance that the defendant as such justice rendered a judgment against the plaintiff and in favor of one Wilkins ; that on the same day the plaintiff proposed to Wilkins to set off against such judgment one which he had obtained against said Wilkins befor’e another justice, and tendered a transcript thereof; that by the consent and agreement of Wilkins and the plaintiff a time was fixed for the defendant as such justice to hear and determine said application to set off said judgments ; that afterwards, and before the time so appointed, the defendant as such justice proceeded to hear and determine the matter of said setoff in the absence of the parties, and denied it, and issued execution on the judgment rendered before him against said plaintiff, and delivered the same to an officer who, by virtue of the same, took and carried away certain of his personal property and sold the same to satisfy such execution, to his damage, etc. The defendant pleaded the general issue, and on the trial in justice’s court the plaintiff had judgment, from which the defendant appealed to the county court, and on the trial in that court the defendant had a verdict and judgment, and the plaintiff sued out this writ of error.

      Winsor & Smith, for plaintiff in error.

      Menzie & Noggle, for defendant in error.
   Knowlton, J.

One point will dispose of this case. The plaintiff seeks to recover damages from the defendant, for not acting according to law, as he alleges, in issuing an execution upon a judgment before the proper time. The declaration does not set forth a cause of action that can be maintained, and the defect is fatal at any time and in any court to which the-case may be removed.

It is a principle of law, too well settled to need authorities to-support it, that no judicial officer, acting within the scope of bis jurisdiction, can be made liable in an action against him for an erroneous decision. Whatever error he may commit while so acting, he cannot be held personally liable for damages sustained in consequence of his error. This declaration seeks for nothing more. No elaborate opinion is necessary upon this point, for the law is too well settled to need comment.

We are clearly of opinion that the judgment of the county court of Walworth county should be affirmed with costs.

Judgment affirmed.


text:
    Hall vs. Wood.
    1. Statute os'FRAUDS. — Where one, in consideration that another will sell and deliver property to a third party, promises to pay such other person, that he will pay him for the same, and it is delivered on the faith thereof, his promise is an original undertaking, and not within the statute of frauds, as being a promise to answer for the debt of another.
    3. Same. — In such cases the real question is, to -whom the credit was given, whether to the party to whom the property was delivered, or to the party promising to pay for it, and if to the latter, then his promise is an original undertaking and not within the statute.
    (4 Chand., 36)
    ERROR to the County Court for Washington County.
    This was an action for the recovery of the price of a yoke of oxen claimed to have been sold by Wood to Hall, and in reference to which the defendant Hall claimed that they were sold by Wood, the plaintiff, to one Bullard; and that the alleged promise of Hall to pay for them was void under the statute of frauds, as being a promise to answer for the debt of Bullard. The proof was clear that at the time of the sale, Hall told Wood that if he would let Bullard have the oxen, he, Hall, would pay him for them, and that Wood would not let Bullard have them until Hall had agreed to pay him for them. Such other facts ;as are material are stated in the opinion of the court.

      Pierce & Stanford, for plaintiff in error,
    to sbow that the promise of Hall was void and within the statute of frauds, cited Farley v. Cleveland, 4 Oowen, 432 ; Watson v. Randall, 20 Wend., 201; 4 Johns., 422; 12 id., 291; 3 id., 210 ; 5 East, 10; 15 Wend., 182 ; 5 Hill, 483 ; that it was conditional and should have been declared on as such. 1 Ohittj PL, 308, 309; Boiuers v. Winters, 7 Cowen, 263; 6 Wend., 394; 10 Johns., 418; 7 id., 321.

      A. M. Blair, for defendant in error,
    contended that the promise of Hall was an original undertaking, and not within the statute, and cited Cowper, 227; Leonard v. Vredenburg, 8 Johns., 39 ; Skelton v. Brewster, id., 376; 13 Wend., 122 ; 2 Oomst., 533; 10 Johns., 242, 412; 11 id., 221; 17 id., 114; that the question was, to whom the credit was given, and that the testimony clearly showed that it was given to Hall and not to Bullard, and he also cited Barker v. Budclin, 2 Denio, 45; Mathew v. Perry, id., 162.
   KNOWLTON, J.

This was an action of assumpsit commenced before a justice of the peace in Washington county, for the recovery of $80, the price of a yoke of oxen, by the defendant in error against the plaintiff in error. The pleadings before the justice are as follows, to wit: The plaintiff declares for the pay of one pair of oxen the amount of eighty dollars, which amount was now due him from defendant for said oxen. The defendant pleaded for a nonsuit on the ground that he did not owe plaintiff, and under the statute, not liable for that amount. Also pleaded that it was a special promise to answer for a debt of another person, and not in writing. The justice rendered judgment in favor of the defendant in error, the plaintiff below, for the sum of eighty dollars and costs of suit. The plaintiff in error appealed from that judgment to the county court of Washington county. Upon the hearing of the cause in said county court, judgment was rendered for eighty dollars and costs of suit, taxed at $41.60, in favor of the defendant in error against the plaintiff in error. From this judgment of tbe county court, error is brought to this court.

The errors relied on by the plaintiff in error for the reversal of the judgment of the county court are:

1. Because the agreement by Hall, plaintiff in error, was a special promise to answer for the debt of another, and hence void by the statute of frauds.

2. The agreement by Hall, if good to bind him, was a special and conditional one, and therefore should have been declared on specially. And the testimony is insufficient to sustain the common count in assumpsit for goods sold.

3. The testimony of Conrad Bullard should have been rejected, as he was interested to fix the liability of plaintiff in error.

4. The proof is that Hall was not to pay for the cattle until the completion of a bridge, and the bridge was not completed at the time of the trial of this suit in the court below.

5. The testimony shows a variance between the declaration and contract sought to be recovered upon.

Now, the test of the first point is to whom was the original credit given. If it was given to Bullard, then the position was well taken ; but if it was given to Hall, the case does not come, within the statute of frauds. It is clear from all the evidence reported to this court that when Wood sold the oxen, he would not take Bullard for the payment, and would only let them go on condition that Hall would pay for them. There is no conflicting evidence or testimony upon this point in the case. Wood evidently never intended to look to Bullard for payment, but always held Hall as the only one responsible to him. Hall himself acted upon this impression.

We cannot see by what mode of reasoning a conclusion can be arrived at that this conti’act is within the statute of frauds. It was clearly an original contract and valid. This is the main point in the case. We consider the declaration clearly sustained by the evidence in the case. The 2d, 3d, 4th and 5th errors assigned are entirely annihilated — too feeble when applied to the law and evidence of the case, to need any reply in this place. We think they are without foundation in law and in fact.

We see no error in the judgment of the court below, and are are of opinion that the same be affirmed, with costs.

Judgment affirmed.