text:
    United States, ex rel. Boyd, vs. Lockwood.
    1. Quo warranto—Practice. A judge of this court cannot award a writ of quo wa/rramto, in vacation.
    S. Same! Proceedings in quo warfamto may be maintained against a judge of probate.
    3. Same. Proceedings in quo warranto must be at tbe instance of tbe government, acting by tbe proper officer; tbey cannot be maintained at tbe instance of a private person.
    4 Tbe proper course of proceeding is,to lay a proper case before tbe court at tbe instance of tbe proper law officer, verified by affidavit, upon wbicb tbe court will grant a rule to show cause wby an information should not be filed; if tbe cause shown is not such as puts tbe matter beyond dispute, tbe rule will be made absolute for the information, in order that the question concerning the right may be properly determined.
    Quo warranto.— On. the 1st July, 1843, Boyd, the relator, presented to the chief justice, in vacation, a relation and affidavit setting forth, that he, the relator, was duly elected to the office of judge of probate of Crawford county, at the election held on the first Monday in May, 1843, by a majority of the legal votes cast at the said election; that the certificate of election to the said office ought to have been given to the relator, but it was given to James Ii. Loclcwood, who had from that time usurped the said office against the right of the relator, and concluded with a prayer for process, etc. Upon this affidavit, the chief justice made an order that the clerk of the supreme court issue a writ of quo warranto in the case stated. The writ was issued on the 3d July, directed to the sheriff of Crawford county, and was served and returned.
    The proceedings were commenced and prosecuted by Ben O. Eastman, attorney for the relator.
    On the second day of the term, the relator by his counsel, moved the court for a rule against the respondent to plead to the relation, and on the fifth day a rule was ordered requiring the respondent to plead on or before the eighth day of the term. Under this rule the respondent moved the court to dismiss the proceedings, because, 1. The process and proceedings were not authorized by law; 2. The said process and proceedings were not instituted and conducted by any person authorized by law to institute and conduct the same.

      T. P. Bv/rnett, for the respondent, in support of the motion, contended:
    1. The process in this case was not properly awarded. The only authority which the legislature has given upon the subject is contained in the judiciary act. Stat. Wis. 196. The second section says that the supreme court shall have power to issue the writs of mandamus, quo warranto, etc. This power is vested in the court, and not in the judges separately, to be exercised in vacation. The award of the writ in this case, made by one of the judges at chambers, is not within the authority given by the statute. The statute confers a naked authority on the court to issue the writ, and makes no provision for the subsequent proceedings ; and we are left to the original writ of quo warranto, to be carried into effect as at common law. The writ of quo warranto is in the nature of a writ of right for the government to seize an office or franchise into its hands. 2 Wheat. Sel. 322 ; Buffer’s N. P. 210, 211, 212 ; 7Comyn’s Dig., Title “ Quo Warranto, A.” And at common law there is no relator. 2 Wheat. Sel. 323, note 4.
    2. The proceedings are not instituted or conducted upon the proper authority. They were commenced upon the relation of a private individual, and are prosecuted by his attorney, as any civil proceeding. It is an established principle that proceedings in quo warranto must be instituted by the government and prosecuted by the attorney-general. 2 Wheat. Sel. 323, 324; Wallace v. Anderson, 5 Wheat. 291; QlarTc v. Deliesseline, 1 McCord, 35. The practice in New York shows that all proceedings of the kind are instituted by the government and prosecuted by the attorney-general. People ». Richardson, 4 Cowen, 97, and note 100-123. In Wallace v. Anderson, supra, the supreme court of the United States expressly decided, that proceedings in quo warranto to try the right to an office cannot in any case be maintained except at the instance of the government; and if instituted by a private individual without the authority of the government, they cannot be sustained, whatever the rights of the parties may be.

      Ben O. Eastman, for relator, contra:

    1. The authority given in the statute to grant writs of quo warranto, etc., does not apply to the court alone, but embraces, in effect, the judges of the court. The third section of the act that has been referred to, gives the judges in vacation, the power to allow writs of error, certiorari, supersedeas and injunction; and also by the same section, the court is vested with all power and authority necessary for carrying into complete execution all its judgments, decrees, determinations, etc.; and for the exercise of its jurisdiction agreeably to the usages and principles of law. The meaning of the statute is the same in relation to all these necessary powers; and where it is necessary to the ends of justice, to award a writ in vacation to carry into effect any of the powers of the court, a judge may grant it. This construction will harmonize all the powers of the court, and effect the objects that were intended by the legislature.
    2. Formerly, a quo warranto was regarded as a criminal proceeding, in which the usurper was punished by fine, and had to be instituted by the crown. In modern times, it is considered as a mere civil proceeding to try the right to an office. 2 Wheat. Sel. 346 ; 4 T. R. 809 ; 2 id. 484 ; 2 Tidd’s Prac. 838, 839. It being in the nature of a civil suit to try the rights. of the parties, it is not necessary that .it should be prosecuted by the attorney-general. The case of McOlernand ®. Meld, 3 Scam. , is one in point, and shows that in the supreme court of Illinois, the principle is recognized, of trying the right to an office on quo warranto, at the instance of the party, without any action on the part of the law officer of the government.
   Dunn, C. J.

The respondent by his attorney, has submitted a motion in this case to dismiss, in response to a rule to plead. The reasons in support of the motion are, 1st. The process and proceedings herein are not authorized by law. 2d. The said process and proceedings are not instituted and conducted by any person authorized by law to institute and conduct the same.

This is the first proceeding of the kind that has been attempted in this court. There is no law of the Territory defining the form of proceeding on such informations. The second section of the “act concerning the supreme and district courts,” vests in this court the power of issuing writs of mandamus, quo warranto, etc. And the third section vests in it “all power and authority necessary for the exercise of its jurisdiction as the supreme judicial tribunal of the Territory, agreeably to the usages and principles of law.” In the exercise of our jurisdiction over informations in the nature of quo warranto, we must be governed by the “usages and principles of law,” and it is of the utmost importance that they should be correctly understood and defined, step by step, as we proceed.

The rule is now settled, that an information in the nature of quo warranto will lie, to inquire by what authority any one exercises any particular office or jurisdiction, in which the public are concerned. An office is where, for the time being, a portion of the sovereignty, legislative, executive or judicial, attaches, to be exercised for the public benefit. That the office of judge of probate of Crawford county is an office within this definition, there can be no question ; and that the proceeding by information in the nature of quo warranto may be had against the incumbent judge is equally free from doubt.

The case of Wallace v. Anderson, 5 Wheat. 391, settles this principle: “That a writ of quo warranto cannot be maintained, except at the instance of the government, whatever may be the right of the prosecutor, or person claiming to exercise the office in question. “ It does not appear, affirmatively, that the proceeding in this case is at the instance of the government. It is true, that the style of the relation is: “United States on the relation of Thomas A. B. Boyd v. James H. Lockwood." The attorney-general, or other public prosecutor, is not identified with the relation. It might be conceded that the attorney-general could not withhold his name or sanction, it being now recognized as a civil proceeding, to settle the relative claims of individuals to an office. Be this as it may, it should appear in the proceedings, to be at the instance of the government, acting by its proper officer.

The supreme court is vested with the power to issue the writ of quo warranto, etc. One of the judges thereof cannot, in vacation, issue or order the issuing of the writ.

At the instance of the government, by its proper officer, on the relation of Thomas A. B. Boyd, presenting a proper case, verified by affidavit, this court could not hesitate to take the proper action.

The method of proceeding is to lay a proper case before the court verified by affidavit, upon which the court wiR grant a rule to the party, to show cause why an information should not be filed against him; and unless the cause shown by him be such as puts the matter beyond dispute, the court will make the rule absolute for the information, in order that the question concerning the right may be properly determined. Buller’s Nisi Prius, 210, 211, 212.

We have thought it necessary, in disposing of this motion against the relator, to indicate what is considered to be correct practice under the law applicable to proceedings of this nature, in their inception, that he may present his case through the proper channel and with regularity.

The order made by one of the members of this court at chambers, for a writ, was not made with confidence at the time of its propriety. Subsequent full examination has satisfied that member of the court, that the order was irregular.

The motion is sustained and the proceedings dismissed with costs.


source: Caselaw Access Project

author: Miller, J. Irvin, J.,

license: Public Domain

text:
    Bracken vs. Preston et al.

    1. Complaint—forcible entry, etc. Justices of tlie peace are not bound. to examine jurors under oatb as to tbeir qualifications, as tlie authority to do so is not given them by statute.
    2. Justice’s court. In a proceeding for forcible entry and detainer the complainant must set forth his title, and whether his estate is freehold or for a term of years, and a seisin or possession in himself in order to show himself within the statute, and upon the trial he must, in order to recover, prove these allegations.
    3. Pleading—-evidence. In such a proceeding the title of the complain ant may be controverted by the defendant, but he cannot defend or justify the/oree by showing title in himself. If his title or right of possession is paramount, he must resort to some appropriate remedy to secure his rights.
    4. Certiorarl In a case of forcible entry and detainer removed into the district court by certiorari, the district court may decide upon errors in fact, but whether the supreme court can do so on a writ of error is not settled.
    ERROR to the District Court for Iowa County.
    ■ Bracken filed a complaint before William Henry, a justice of the peace in Iowa county, setting forth, that be was the owner in fee of the undivided one-third part of the east half of the north-east quarter of section 5, township 4 of range 3 east, and being in possession thereof, Sylvester B. Preston, William Kendall, William Nichols, and William T. Phillips, forcibly entered upon, and forcibly detained the same.
    Upon the trial of the complaint, Bracken wished to examine some of the jurors under oath, previous to their being sworn, as to whether they had formed or expressed an opinion in relation to the matter to be tried, but the justice refused to allow the qualifications of the jurors to be inquired into.
    After the complainant’s evidence was heard in relation to his title, possession, and the forcible entry and detainer complained of, the defendants proved in justification, that one Andrew Rumfrey and the complainant, previous to the-occupying of the premises by the defendants, had some conversation in which Rumfrey said he wished to dig on the complainant’s ground, and complainant said he might do. so, but that he wanted the mineral, and Bumfrey replied, that if he would give as much for it as any body else he might have it; that after this Bumfrey mined upon the land in dispute, and after working some time, sold his interest in it to the defendants: Written transfers from Bumfrey to each of the defendants, embracing all his interest, were produced and read as evidence. To all of this testimony, the complainant objected, the justice overruling his objections.
    The jury .returned a verdict in favor of the defendants, upon which the justice rendered judgment. Bracken removed the proceedings into the district court, by certiorari, and assigned errors as stated in the opinion of the court.
    The district court affirmed the judgment of the justice.

      Moses M. Strong and T. P. Burnett, for plaintiff in error,
    contended, 1. That the justice erred in refusing to allow the jurors to be examined under oath, as to whether they had formed or expressed an opinion upon the subject which was about to be submitted for their decision, and that trial by jury before a justice is of no benefit, if a party is bound to submit to a jury that are prejudiced against him, and who have pre-judged the case.
    2. The evidence in the case shows that the complainant was iff the peaceable possession of the premises, and that the defendants committed the forcible entry complained of. The justice permitted the defendants to justify by introducing evidence to show a right of possession in themselves. This they did by proving a vague conversation between one Bumfrey and the complainant, about Bumfrey’ s digging on the ground, and then by written transfers from Bumfrey to the defendants. We contend that all this evidence was improper, and should not have been admitted; that on the trial, nothing but the force complained of could legally be inquired into, and that in proceedings of this kind the defendants cannot justify by showing any right or title in themselves. But if such testimony would be legally admissible in this case, the vague conversation between Eumfrey and Bracken did not amount to a contract that could be legally carried into effect. There was nothing in it that was definite, either as to terms, duration, location, or any thing else. Admitting, however, that it was a contract between Bracken and Eumfrey, the utmost construction that could be put upon it, would only make Eumfrey a tenant at will, and that would not vest in him any right or interest in the soil that he could transfer to another. 13 Johns. 106; 2 Caines, 169; 6 Am. Com. Law, 389 ; 2 Yerg. 249; 4 Vt. 291.

      F. J. Bunn, for defendant in error.
   Miller, J.

Charles Bracken commenced proceedings before a justice of the peace of Iowa county against the defendants, under the act to prevent forcible entries and detainers. The complaint charged that the defendants made an unlawful and forcible entry into his lands and tenements and with strong hand detained the same. The jury found for the defendants, and the case was removed by the plaintiff by certiorari, to the district court of Iowa county, where the judgment before the justice was affirmed. The plaintiff thereupon sued out this writ of error.

The first error assigned is, that the justice refused to have the jurors sworn to answer questions respecting their capacity to serve as jurors, and whether they had formed or expressed an opinion of the merits of the cause.

Section 26 of the act concerning grand and petit jurors, gives authority to the district courts to swear jurors, but not to justices of the peace. There is no such authority given by law to justices of the peace. Without authority by law, the court or justice has no right to require jurors to be sworn to answer questions, whether they have declared opinions on the case. It would be the duty of the justice to admonish them, that if they did not feel indifferent, or had prejudged the cause or declared their opinions, they should disclose it. Commonwealth v. Dennie, 4 Yeates, 267. Without an act on the subject, a juror may be sworn, but there is no obligation to do so. McCorcle v. Binns, 5 Binney, 340. In this case there is not even an allegation that any one of the jurors had formed or expressed an opinion, and the justice not being obliged by law to swear a juror on the subject, there was no error in the refusal of the justice to do so. But that there should be a law requiring it in cases before justices of the peace, there is no doubt.

The second error assigned is as follows : The lease to Andrew Rumfrey was only a parol lease which only created a tenancy at will, and might terminate at the option of either party; and Rumfrey had not such an interest as could be transferred.

This relates to testimony given on the part of the defendants, and which should not have been allowed before the jury; and will not be considered here. If the cause had turned on this evidence, the judgment before the justice should be reversed. The defendants are proceeded against for forcible entry and detainer. They have no right to justify the force by showing title in themselves. It is in the nature of a criminal proceeding against them, and they cannot justify the forcible entry and detainer on the strength of their title. In a 'prosecution of this nature, the title to the premises, as between the defendants and relator or complainant, cannot be inquired into, though the latter is bound to set forth his title so far as to show himself within the provisions of the act. That title may be controverted by the defendant, but he cannot set up his own, as a substantive matter of defense, because the question of title cannot be tried in this action. People v. Godfrey, 1 Hill, 240. In a proceeding of this kind, the complainant must set forth a seisin or possession within the purview of the act, or whether his estate be a freehold or a term of years; and on the traverse, the allegations as to Ms estate must be proved by Mm. But the defendant cannot justify the force by showing a title in himself. He may controvert the facts by wMch the complainant attempts to show title in himself. People v. Nelson, 13 Johns. 340. The same doctrine will be found in the cases of People v. Ricket, 8 Cowen, 226; People v. Leonard, 11 Johns. 504. And if the title of the defendant, or his right of possession is paramount, he must resort to an appropriate remedy to maintain his rights.

The third error assigned is as follows: “It having been proven that the plaintiff was in the peaceable possession of the land, he could haVe been ousted only by due course of law.”

By the sixteenth section of the act to prevent forcible entries and detainers, the district court to wMch any certiorari is returned, shall. proceed to hear and determine the same, as the very right of the case shall appear, without regarding technicalities or imperfections in the return. Evidently, from tMs section and other provisions in said statute respecting the removal of causes by certiorari to the district court, that court has the power to decide upon errors of fact as well as of law. This court is a court for the correction of errors in questions of law, and generally should not inquire into the correctness of the decisions of the district courts in questions of fact. As the court is not full, and tMs case does not require it, we will not in this case establish a rule on this subject, although referred in the argument to a case in point. Columbia Turnpike Company v. Hayward, 10 Wend. 422.

In this case the complainant did not make out by proof, a forcible entry and detainer against the defendants.

Judgment affirmed with costs.

Irvin, J.,

being a part owner of the land, though not interested in the subject-matter of this suit, declined sitting in the case.


author: Irvin, J.

text:
    Rolette vs. Rolette and another.
    Husband and wipe—deed eor separate maintenance. A deed entered into between husband and wife of the one part, and a trustee of the other, after a separation of the husband and wife, for the purpose of securing to the wife a separate maintenance, is valid, and will not be set aside by a court of equity, at the suit of the husband, as being against the policy of the law.
    APPEAL from the District Court for Crawford County.
    On the 22d of September, 1834, Joseph Rolette, and Jane F., his wife, haviny been for some time living separately and apart from each other, entered into an indenture with Bernard W. Brisbois, a trustee mutually chosen, by which, among other things, Joseph Rolette covenanted to the trustee to furnish and provide a separate maintenance for his said wife, as specified in said deed. After some time the husband refused to furnish the. support and maintenance for his wife according to the terms of the deed, and Brisbois, the trustee, commenced an action of covenant to recover damages for the refusal. Pending the action, on the 10th of March, 1840, another indenture was entered into between the said Rolette and wife of the one part, and the said Brisbois as a trustee of the other, which recited: “That whereas circumstances have for several years last past prevented the said Joseph Rolette and Jane F. Rolette his wife, from living together in the relation of husband and wife ; and whereas the said Jane still chooses to live separately and apart from her said husband, and the said parties have agreed that she shall do so;” and then provided, that in consideration of the obligation of the said Joseph to support his said wife suitably to her condition in life, and in consideration of five dollars to him paid, he, the said Joseph, granted to the said Brisbois, in trust for the sole and separate use of his wife, an annuity of the yearly sum.'of $800, payable quarterly, for the life of the wife. By subsequent provisions of the deed, the action of covenant was to be dismissed, and all causes of action for which it was commenced were released, and the deed of the 22d September, 1834, was canceled. The payment of the annuity, and the covenants of the latter deed, were secured by a bond to the trustee in the penalty of $30,000, and a mortgage upon real estate at Prairie du Chien.

      Joseph Rolette filed Ms bill in equity, in the Crawford district court, against his wife and the trustee, setting up the latter deed, bond, and mortgage, and also the deed that was canceled; charging that the separation was of her will and not of his; that he was willing to support her at his own house, and that the said deed, bond, and mortgage were without any sufficient consideration, contrary to the whole policy of the law in relation to marriage, and against the interest, order, and happiness of society. The bill prayed that the said deed, bond, and mortgage should be surrendered up and canceled.
    To this bill the defendant filed a general demurrer, and at the October term, 1842, the district court sustained the demurrer and entered a decree dismissing the bill with costs. Prom this decree the complainant" appealed to tMs court.

      Ben O. Eastman, for appellant:
    Contracts for the separation of husband and wife, and for a separate maintenance, founded on such separation, have undergone great scrutiny in the English and American courts of late years. The current of modern decisions is against the validity of all agreements of the Mnd.
    The case of Rogers v. Rogers, 4 Paige, 516, decided in New York in 1834, was where a contract for a separate maintenance had been entered into between the husband and wife with a trustee. In that case the chancellor said: “It is impossible for a feme covert to make any valid agreement with her husband to live separately from him, in violation of the marriage contract and the duties she owes to society, unless it be done under the sanction of a court of chancery, and then only when the conduct of the husband would entitle the wife to a decree for a separation. The law of the land does not sanction a voluntary agreement for a separation between husband and wife.”
    The ecclesiastical courts in England have decided that it is impossible for the parties in marriage, lawfully to relieve each other from their reciprocal duties, which the relation of husband and wife impose upon them. Those courts consider it an illegal contract, exhibiting a dereliction of those mutual offices which the parties are not at liberty to desert; an assumption of a false character, contrary to the real status persona,, which they have contracted to observe and abide by. In Rogers r>. Rogers, the chancellor referred to the case of Westmeath v. Westmeath, 2 Hagg. Eccl. Rep. 238; and also to the case of Mortimer v. Mortimer, id. 543. The case of Westmeath v. Westmeath was an application to the consistorial court for a restoration to conjugal rights. In December, 1817, in consequence of the brutal conduct of Lord Westmeath, a deed of separation was executed to a trustee, providing for a separate maintenance. They, however, continued to live together until 1818. In November, 1818, a new instrument of separation was executed, and £300 per annum settled upon the lady. This deed recites that disputes and difficulties had arisen between the parties, and “ that they were on the point of living separate and apart, but by the mutual intervention of friends, she had consented to live and cohabit with him after the execution of the deeds.” In June, 1819, the parties finally separated, and this bill was filed to enforce conjugal rights; and at the same time, Lord Westmeath filed his bill in the chancery court, to have these deeds delivered up to be canceled. To the bill in the consistorial court, these deeds Were pleaded in bar. That court decided that Lady W. should return to her husband; an appeal was taken, and in Hilary term, 1827, the case was decided by Sir J. Niooll. After the deeds of separation of 1818 were executed, no matrimonial cohabitation took place between the parties, but to conceal their separation from the world, Lord W. continued to occupy a room in the house until June, 1819. The decision of the consistorial court was reversed, but it was on account of the cruel treatment of the husband, and a separation was decreed, which decision was subsequently confirmed by the High court of Delegates. The court here considered the deed of separation no bar to the action, but enforced its terms by way of settlement upon the wife, taking the deed which was agreed upon between the parties as a guide for the amount of the settlement which was proper to be made.
    The case of Lady Mortimer *. Lord Mortimer, was also a bill for a restoration of conjugal rights. A deed of separation was entered into between the parties in 1811. In 1816, the bill was filed. Sir William Soott, in commenting on this deed of separation which was pleaded in bar in this case, says: “This court considers deeds of separation as illegal contracts, and not plead-able, and entirely insignificant. They imply a renunciation of stipulated duties which the parties are not at liberty to desert; from the solemnities of a contract, from which the parties by their own act, cannot relieve themselves.”
    In the case of Carson v. Murray, 3 Paige, 483, the Chancellor says: ‘ ‘ An agreement for a separation cannot be supported unless the separation has already taken place, or is to take place immediately upon the execution of the deed.” He also decided, that such an agreement will be rescinded, if the parties afterward cohabit or live together for ever so short a time. “It may well be doubted (says he), whether public policy does not forbid any agreement for a separation between husband and wife; and whether it does not require that such an agreement should be limited to cases, where by the previous misconduct of one of the parties, the other is entitled to have the marriage contract dissolved by a decree of court.” He refers to the case of St. John v. St. John, 11 Vesey, 526, where Lord Eldon held the same doctrine precisely; and also to the case of Westmeath v. Westmeath, 1 Jac. 126; 4 Eng. Ch. 55.
    In the case of Titley v. Durand, 7 Price’s Exch. 577, the court decided “that a deed between husband and wife and a trustee, covenanting to pay the wife an annuity in case she should live separate and apart from him, was mid, as being a deed made in contemplation of a future separation, and was therefore contrary to the policy of marriage; and that a plea to an action of covenant upon such a deed, that the parties afterward lived together, is a good plea; and that a deed could not be made providing for a future separation of husband and wife.
    In the case of Marshall v. Dutton, 8 T. R. 545, Lord Kenton says: “An agreement to live separate is a contract supposed to be made between two persons who in law are but one, and on that account are not able to contract with each other, which sweeps away the whole foundation of its legality, and consequently, the whole superstructure must fail.. This objection meets the plaintiff in limine. Such a contract cannot be valid, which has for its object, the contravention of the whole policy of the law relating to domestic life.”
    In the case of Warrall v. Jacob, 3 Merivale, 268, the master of the rolls said: “The court will not carry articles of separation into execution, and that such deeds are void.”
    In the chancery suit of Westmeath v. Westmeath, 1 Jac. 126-144, before cited, the Lord Chancellor says: “If the question whether the court could or would not enforce articles of this sort was not prejudged by any decision, I should say, I think no court ought to act on them.”
    The Chancellor, in Rogers r. Rogers, supra, says: “In looking over the cases, which are extremely well collected in Roper, I perceive that it seems to have struck every one as extraordinary, that such deeds should ever have been supported. The law has imposed upon husband and wife duties of the most sacred nature, which no court should allow them to disregard.”
    The current of authorities, supported by the soundest reason, is against the validity of such deeds, and sustains the case of the appellant in the cause under consideration.

      T. P. Burnett, for appellees:
    The distinction does not seem to have been drawn between deeds of separation and deeds to secure a separate maintenance; nor between contracts for a separation that has actually taken place, and contracts providing for a future separation.

    Deeds of separation and for separate maintenance were formerly sustained, almost without limitation or restriction, in the courts, both of law and equity, in England. One of the oldest cases in the books, is that of Gawden r. Draper, 2 Yentr. 217, decided in 1690. That was an action of covenant on an indenture, whereby the defendant covenanted that his wife should live separate and apart from him until both should give notice in writing, attested by two witnesses, to cohabit again, and that during the separation he would pay the plaintiff ¿6300 per annum, in quarterly payments, for his wife’s maintenance. The action was brought to recover £75, for one-quarter of the annuity then in arrear. The defendant pleaded in bar a subsequent indenture between the defendant and wife of one part and the plaintiff of the other, which reciting the first indenture, and that the defendant and his wife did then cohabit, and that it was the true intent and meaning of all parties that so long as they did cohabit, the said annuity should cease; it was therefore covenanted by the plaintiff that so long as the defendant and wife should cohabit, the defendant should be saved harmless from the said annuity, and might retain it, and averred that ever since the last indenture they did cohabit. The plaintiff replied that they did not cohabit modo et forma, etc.; to which the defendant demurred. The court decided that unless the cohabitation was according to the first indenture, it was no bar to the action, and gave judgment for the plaintiff.
    It was ruled by Lord Holt, C. J., in the case of Todd v. Stokes, 1 Salk. 116, that where a husband and wife part by consent, and he secures to her a separate main - tenance, and pays it according to agreement, he. is not answerable for necessaries furnished her. The same doctrine was recognized in the more modern case of JTu/rse v. Qraig, 5 Bos. & Pul. 148. These decisions can only be sustained by acknowledging the validity of the contract for separate maintenance.
    The courts of common law went so far upon this subject, that the King’s Bench, in the celebrated case of Qorbett v. Poelnitz, 1 T. R. 5, decided in the time of Lord Mansfield, that a feme covert, living apart from her husband by deed of separation, and having a large maintenance settled upon her, beyond the control of the husband, might contract, sue and be sued as a feme sole. This decision was in 1785, and was considered, so far as it established the powers of the wife to act as a feme sole, as a dangerous innovation of the ancient law; and its authority was assailed from time to time, until in the case of Marshall v. Hutton, 8 T. R. 545, the court of King’s Bench decided, in 1800, that a feme covert could not contract, and sue and be sued, as a feme sole, though she be living apart from her husband and have a separate maintenance secured to her by deed. That the only way in which a separation can be safe and effectual is, by having recourse to trustees, in whom the property of which it is intended the wife shall have the disposition, may vest, uncontrolled by the husband, and it would fall within the province of a court of equity to enforce such a trust. It will be perceived that the point decided in the latter case, which is the one referred to by the appellant, was not on the validity of any deed for a separation or separate maintenance, but on the effect of such a deed; whether the wife under it could act, sue and be sued, as a feme sole.

    Afterward, the case of Rodney n. Chambers, 2 East, 283, was decided in the Kang’s Bench in' 1802. That was an action of covenant by the trustees, upon a deed, which provided, among other things, that in case of a future separation of the husband and wife, with the consent of the trustees, the husband should pay to the trustees £200 per annum in trust for the wife for life. The declaration averred a separation with the consent of the trustees, and that the annuity of £200 for one year was in arrear and unpaid. The point at issue submitted to the court was, whether such a covenant was valid and effectual ; it being contended there, as it is here, that it was contrary to the policy of the law, and subversive of good morals. But the court, after a full review of the authorities gave judgment for the plaintiffs.
    In Lord Vane’s Case, 13 East, 171, the parties had separated, and afterward agreed to cohabit together, upon which occasion, articles were entered into, by which he covenanted, that if she should afterward desire to live apart from him, he would not molest her. After this, in consequence of ill treatment, they separated a second time, and upon articles of the peace being exhibited against him, the validity of the deed was not questioned by the court.
    In later cases, it has been decided, that in actions on deeds for separate maintenance, brought by trustees against the husband, it is no bar to the action to plead that the wife had committed adultery. 2 Barn. & C. 547 ; 8 Bing. 256; and the case of Field r. Ferrars, 1 N. E. 121.
    Chancellor Kent (2 Com. 513) says, that the rule laid down in Todd v. Btolces, and Nurse r>. Craig, was adopted in all its parts, in Balter v. Barney, 8 Johns. 72.
    In Fenner r>. Lewis, 10 Johns. 38, where the husband and wife had agreed to articles of separation, and a third person became a party to the instrument, as the wife’s trustee, and provision was made for her maintenance and the enjoyment of separate property, it was held, that the declarations and admissions of the wife in relation to the property, were admissible in evidence in favor of the husband, in an action against the trustees upon his covenant in the deed. Now it follows, that the declarations of the wife could not be evidence for the husband, unless the deed of separation was valid, at least so far as the property and maintenance were concerned. See also the case of BJiethar n. Gregory, 2 Wend. 422.
    The early decisions in chancery went as far as those in the courts of law. In Nichols n. Danners, the defendant, having ill-treated his wife, gave her a note that if he should again ill-use her she should have her share of her mother’s estate to her own use ; and upon the happening of subsequent ill-treatment by the husband, the wife and her brother filed a bill against him for that purpose, and the lord keeper decreed the interest to her for life for her maintenance, and afterward to the husband for life, and the principal to the issue, if any; and if none, to the survivor of the husband and wife ; and he remarked, that the words in the note, “ in case he should again ill-use her,” must have meant, “ in case she should be obliged to live separately from him.”
    In some of the early cases, articles of separation were specifically enforced (Grilb. Eq. 152, 153); and in the case of Guth n. Guth, 3 Bro. 64, it was determined, after great consideration, that articles of separation may be specifically enforced at the suit of the wife, although the husband offered by his answer, to receive her again. The validity of a deed of separation, and for separate maintenance, was sustained in the case of Moore n. Moore, 1 Atk. 277, and it may be inferred from the judgment of Lord Haedwiok in that case, that he considered an agreement for separation in prospectine to be good.
    In OooJc n. Wiggins, 10 Yesey, 191, it was said that there was no doubt of the general jurisdiction of a court of equity to decree a specific performance of articles between husband and wife for separation and separate maintenance. 11 Vesey, 537; 19 id. 63.
    In Reade v. Livingston, 3 Johns. Ch. 481, it was held, that a voluntary settlement, after marriage, upon the wife and children, was void as to creditors at the time of the settlement; but if the husband be not indebted at the time, such settlement is not void as against subsequent creditors; and Chancellor Kent says that this was the true doctrine of that case, deduced from the English authorities.
    We know that the old decisions have in many points, been overruled by more modern cases, and that the court of chancery in England, and perhaps in some of the States, has of late years gone to the utmost stretch of power and authority, to Emit and restrict the operations of deeds of separation and for separate maintenance. But no authority, ancient or modern, can be brought to set aside the deed in this case, at the suit of the husband. There is not a case to be found where the principles of this biE have been decreed in chancery, and none of the cases cited by the appeEant go that length.
    In Oar son v. Murray and others, 3 Paige, 483, one of the cases reEed upon, the chancellor sustained the validity of the deed, and the portion of his decision that has been read militates nothing against the deed in this case. He only says, that an agreement for a separation cannot be supported, unless the separation has previously taken place, or is immediately to happen ; and that if the parties afterward cohabit or Eve together, the agreement will be rescinded.
    ' In the case of Worrall v. Jacob, 3 Merivale, 256-268, one of the cases referred to by the appeEant, Sir William GS-rant, master of the roEs, only decided, that chancery would not carry into execution articles of agreement between husband and wife; but he admitted that agreements between the husband and a third person as a trustee, though originating out of and relating to a Reparation, were vaEd, and might be enforced in equity. And Lord Eldon, who always entertained and expressed the greatest repugnance to such deeds, said: that if the question was res integra, untouched by dictum or decision, he would not have permitted such a covenant to be the foundation of a suit in equity. But dicta have followed dicta, and decision has followed decision, to the extent of settling the law on this point too firmly to be now disturbed.
    The decisions of the English ecclesiastical courts are no authority in this country, nor are they binding on the courts of law and equity in England. But if they were, what do the cases of Westmeath v. Westmeath, and Mortimer v. Mortimer amount to % Simply that in proceedings to restore marital rights, to force persons to live together, whatever may be the repugnance of one of the parties, a deed of separation is no bar in such case.
    The deed in Lord Westmeath’s Case provided for a future separation; and he filed his bill in chancery to have the deeds delivered up and canceled, and to enjoin the opposite party from proceeding at law upon them ; yet although Lord Eldon argued against the law throughout his decision, he admitted that it was so firmly settled that he had no authority to rescind the contract or to enjoin the parties from proceeding at law upon it.
    The case of Tttley v. Durand, decided in the Exchequer in 1819, only went thus far: that a contract for a future separation of husband and wife is mid. It did not touch the principles of this case.
    The court will look at the principles that have been decided in the cases, and not take the arguments of the judges and chancellors as authority in deciding this case. Some of those arguments, if admitted as authority, are sufficient to overturn the whole system of the law upon this subject, as it has stood for more than two hundred years.
    The principles to be deduced from all the authorities; principles which perhaps, no court of law or equity would doubt anywhere as law at this day, are these: 1. That a contract between husband and wife, without the intervention of a trustee, is void. 2. That a contract with a trustee, providing for a future separation, is also void. 3. That a contract with a trustee, covenanting for the separate maintenance of the wife, where the separation has previously taken place, is valid both at law and in equity, and may be enforced even though the husband is willing that the wife should return to him again. And 4. That subsequent cohabitation will rescind a valid deed made to a trustee.
    Now, to apply these principles to the case under consideration. The bill and the deed show that it is not a contract for separation, but a contract to secure a separate maintenance; that the separation had existed for years when the deed was executed; that the contract was made with a trustee mutually chosen, and the covenants are made to him. No cohabitation has taken place since the execution of the deeds. The separation is not a part of the contract, and is only referred to by way of recital, and there is no covenant in relation to it; and although it is the reason that led to the contract, it is not stated as the consideration. The consideration expressed is the husband’s liability to provide for the support of his wife. The bill charges that the deeds were without any sufficient consideration, but this is not supported by the facts set up. Beside his legal liability to support his wife in a suitable manner, an action at law was compromised by the deed, and the cause of action released. The compromise of the suit is a good consideration for a promise, although there may have been no just cause of action. The strictest tests may be applied, the strongest authorities may be brought in review, and these deeds will be found not to be in contravention of any decision that has been given.
   Irvin, J.

Joseph Rolette filed his bill in the district court of Crawford county, from which it appears, that the said Joseph Rolette, and Jane Rolette his wife, and Bernard W. Brisbois as trustee, entered into an agreement for the separate maintenance of the said Jane, by which an annuity Was settled upon her during her life, the payment of which was secured her by bond and mortgage. The object of the bill in this case is, to set aside and cancel that deed for a separate maintenance, as well as the bond and mortgage, for the reason that the said deed, bond and mortgage were made without any legal or adequate consideration ; “and with a view to accomplish an illegal object, which the said parties had no right to assume upon themselves to accomplish, and that the same is contrary to the laws of the land, and the salutary customs and usages of society, and ought to be set aside.” To this bill a general demurrer was filed, which upon .argument, was sustained by the district court, and from which decision an appeal was taken to this court.

When this deed which is made a part of the bill, is examined, it is found to be strictly such as is sanctioned and sustained by the authorities.

In support of the bill, the counsel relied on the case of Rogers v. Rogers, 4 Paige, 516, and the authorities therein cited; Westmeath v. Westmeath, 4 Eng. Eccl. Rep. 228; Mortimer v. Mortimer, id. 543; Carson v. Murray, 3 Paige, 482; 11 Vesey, 536; 8 Term Rep. 545; 2 Story’s Eq. 652, 4; 1 Chitty’s Pr. 58.

In resistance of- this bill, and in support of the demurrer, the counsel for the defendants relied on 4 Petersdorff’s Abr. 85; Cook v. Wiggins, 10 Vesey, 191; Rodney v. Chambers, 2 East, 105; Gawden v. Draper, 2 Ventr. 217; Moore v. Moore, 1 Atkins, 272; Lord Vane's Case, 13 East, 171; Fenner v. Lewis, 10 Johns. 38; Baker v. Barney, 8 id. 483; Carson v. Murray, 3 Paige, 483; 2 Kent’s Com. 161; and Shethar v. Gregory, 2 Wend. 422.

The deed herein set forth is not a deed for the separation of the plaintiff and his wife, and which as such, would have been obnoxious to many of the authorities cited by the counsel for the complainant, but is a deed for the separate maintenance of the wife, made and entered into many years after the separation had taken place. Such deeds being allowable, and when entered into sustained by the courts, we can see no objection, from any thing which arises out of the nature of this contract, to the decision of the district court.

If there be any thing in this particular case to be objected to in support of the bill, it must arise out of the deed itself, but which, as we have already said, upon examination, we find to be strictly such as is sanctioned and sustained by the authorities. We therefore think the decision of the district court right, and affirm the same with costs.


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    Rolette vs. The School Commissioners of Crawford County.
    Practice—exceptions. The supreme court will not consider matters assigned as error in the proceedings of the court below, unless they are made a part of the record of the case; and matters dehors the record can be made a part of it, only by bill of exceptions.
    ERROR to the District Court for Crawford County.
    The defendants in error brought an action of trespass against Rolette, and the declaration was filed in the name of “The School Commissioners of Crawford county,” without naming the commissioners by their individual names and style of office. It charged Rolette with divers trespasses in cutting and carrying away Umber from section 16, town. 7, range 6 west, in Crawford county. The defendant pleaded the general issue, and upon the trial, the jury found - for the plaintiff and assessed the damages at $125.
    The defendant moved in arrest of judgment because:
    “1. Because it does not appear from the record and proceedings that the plaintiffs in the suit were authprized by law to institute and maintain the acUon.
    2. Because it does not appear by any part of the record and proceedings- that the plaintiffs were ever legally elected school commissioners of any organized town or county in the Territory of Wisconsin, by the legal voters of such town or county, or that they were in any way authorized to act as school commissioners.
    3. Because by the law of the land, if the said school commissioners were authorized to institute and maintain this suit, they should have brought the same in their own proper names respectively, and not in their names as ‘school commissioners.’ ”
    The district court entered judgment on the verdict against the defendant for the said $125 damages and costs of suit. It was assigned as error, that the court erred in overruling the motion in arrest of judgment, but no bill of exceptions was settled in order to show by the record what the motion was, or the ruling of the court thereon.
    id J. Durm and Ben. 0. Eastman, for plaintiff in error.

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

This cause came up on error to the district court for Crawford county, on a judgment given at its May term, 1842.

In the court below, the plaintiffs declared against the defendant in trespass, for felling, cutting, etc., the timber upon school section 16. To that the defendant pleaded the general issue, whereupon came a jury, who found a verdict in favor of the plaintiffs, upon which a judgment was rendered by the court.

Among the papers of this case is found and brought to the attention of the court, an assignment of errors, which purports to embody and set forth reasons offered in arrest of judgment in the district court; but as they were not made part -of the record by a bill of exceptions, this court cannot take any notice of them, as they could alone be made a part of the record in that way. Lessee of Fisher v. Cockerill, 5 Peters, 248; Gratz v. Gratz, 4 Rawle, 411; Ashley v. Sharp, 1 Littell, 166; Vanlandingham v. Fellows, 1 Scam. 233; and a number of authorities referred to by this court in the case of Haney v. Clark, ante.

There is no reason why this court should disturb the judgment of the court below, for aught that appears in the record; and inasmuch as the matter sought to be complained of does not appear in such a shape as to be noticed by tMs court, the judgment of the district court is affirmed, with costs and damages at the rate of seven per centum per annum from the date of said judgment.


author: Miller, J.

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    The United States ex rel. Boyd vs. Lockwood.
    1. Service or rude. A rule to show cause why an information in the nature of quo wwrrcmto should not be filed, may be served by a private person; and the time and manner of service may be made to appear by affidavit.
    2. Bjetürit. Where a writ is directed to the sheriff, the under-sheriff or a deputy may serve it, but he must make the return in the name of the principal officer to whom the writ is directed.
    At the July term, 1843, upon the application of M. M. Jackson, attorney-general, a rule was entered against Lockwood to show cause at the present term why an information, in quo warranto, should not be filed against Mm, to inquire by what authority he exercised the office of judge of probate of Crawford county.
    A copy of the rule was made out and sealed by the clerk on the 4th day of January, 1844. The service indorsed upon it was as follows : “ TMs writ was served on the 2d day of July, 1844, personally, by reading and delivering to the defendant an attested copy of tMs writ in hand. H. W. Savage, Under Sheriff.”
    At the present term M. M. Jackson, attorney-general, applied to the court for a rule against the respondent to enter his appearance and file Ms response to the rule to show cause; and contended that the rule of last term had been properly served and in time to require the respondent to answer.
   Miller, J.

In tMs case a rule was issued by the clerk on the 4th day of January last, in pursuance of a previous order of tMs court upon the defendant to show cause, on or before tMs term of tMs court, why an information in the nature of a quo warranto should not be filed against Mm, to show by what authority he claims to have and exercise the office of judge of probate of the county of Crawford. The rule is returned with this indorsement :

“ TMs writ was served on the 2d day of July, 1844, personally, by reading and delivering to the defendant an attested copy of this writ in hand.,” Signed: “H. W. Savage, Under Sheriff.” A motion is made by the attorney-general that the defendant appear and answer, wMch cannot be granted by the court.

This is not a writ issued out. of this court to an officer of the court, whose official return thereto could be required. It is a mere rule, wMch can be served by any person competent to do business ; and the time and manner of such service may be made to appear to the satisfaction of the court, by the affidavit of the person who served it. If it were a writ directed to a sheriff, a deputy of the sheriff or an under sheriff could not make a legal return to the same in his own name. An under sheriff or deputy can do business and make and indorse a return to a writ, but he must do so in the name of the principal officer to whom the writ is directed. The motion is refused.


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    Ansley et al. vs. Haney.
    1. Execution. A party who obtains a judgment may bave execution tbereon at any time within two years, but if be suffers tbat period to elapse, be cannot bave sucb process until be revives bis judgment in tbe usual way; and if tbe execution is issued after tbe expiration of two years without a revivor of tbe judgment, it may be quashed, and tbe proceedings under it set aside.
    2. Judgment—execution. Tbe 4th section of “An act to amend an act of tbe Revised Statutes, entitled 'An act concerning-judgments and executions,’ ” approved February 19,1841, neither repeals nor supersedes tbe 25th section of tbe original act; it only limits tbe lien of judgments on real estate to ten years without revivor, and does not authorize tbe issuing of execution at any time witliin ten years, and after tbe expiration of two years from filing tbe record.

      ERROR to the District Court for Iowa County.
    On the 7th of September, 1839, Ansley & Salter recovered judgment against Haney in the district court for Iowa county for $102.61 damages, besides costs. The first exection issued on the judgment was directed to the sheriff of Dane county, and was dated February 27,1843. This was returned, not satisfied. May 30, 1843, an alias fi. fa. was issued, directed to the sheriff of Dane county, to which he returned that he had levied on certain personal property, a part of which he had released as being exempted from sale, and the remainder he had sold for $24, and that he found no property to make the balance of the execution.
    At the April term, 1844, of the Iowa county district court, Haney moved the court to set aside the last mentioned execution, and the levy and sale made under it, on the ground that more than two years had elapsed from the rendition of the judgment prior to the issuing of any execution upon it. The district court decided, “ that the said execution issued erroneously and was voidable, and that the motion of the said defendant to set aside and avoid the same be sustained, and the said execution, levy and sale be and the same are hereby set aside and rendered void as against said defendant Haney, without in anywise affecting any right which a purchaser may have acquired under said sale if any has been acquired in law.

      F. J. Dunn, for plaintiffs in error.
    At common law, if execution had not been issued within a year and a day, the judgment had to be revived by scire facias.

    The act concerning judgments and executions (Stat. Wis. 229, § 25) extends the time to two years; and upon this section the decision of the district court was based, and the court determined that after two years, execution could not issue.
    The act of February 19, 1841, sections 1 and 4, provides that a judgment shall be a lien on real estate for ten years, but not afterward, unless it shall be revived. During the ten years, no scire facias is necessary ; it is in full force as a lien upon the property of the befendant, and of course, it ought to be considered in force for the purpose of execution also, for the same time. The statute only speaks of reviving after the lapse of ten years; of course it is not requisite to revive before that time. The act of 1841 was passed within two years from the docketing of the judgment in this case, and virtually repeals the 25th section of the original act. If this construction be correct, the decision of the district court must be reversed. Bingham on Judgments and Executions, 50, 54 ; 2 Tidd’s Prac. 1076; 6 Bacon’s Abr. 102. There was no appearance for the defendant in error.
   Miller, J.

At a term of the district court of the county of Iowa, held in September, 1839, these plaintiffs, Ansley and Salter, recovered a judgment against the defendant Berry Haney. On the 27th day of February, 1843, a writ of fieri facias was issued on said judgment, which was returned nulla tona. On the 30th of May, of the same year, an abas fieri facias was issued, on which a levy was made by the sheriff on some personal property of the defendant. At a subsequent term, on motion of said defendant, the said district court set aside the last mentioned writ, on the ground that two years from the date of the judgment had expired before the fieri facias had issued.

By section 25 of “An act concerning judgments and executions,” on page 229 of the Revised Statutes, “whenever judgment shall be rendered in any court of record, for any debt, damages, sum of money, or costs, the party in whose favor such judgment was rendered, upon filing the record thereof, and within two years thereafter, may have execution to the sheriff or other proper officer,' to collect the amount of such judgment.”

This section gave the plaintiff in the judgment a right to have and use the process of the court, to enforce the collection of his demand, for the term of two years from the rendition of the judgment and the filing the record thereof. In this respect the practice is regulated by statute. The power of the court to set aside this writ of fieri facias, at the instance of the defendant, cannot be questioned. The plaintiffs having suffered the time to expire, should have first revived their judgment in the way known to the law, before they were entitled to their execution.

The fourth section of “An act to amend an act of the Revised Statutes of Wisconsin Territory, entitled an act concerning judgments and executions,” approved February 19, 1841, neither repeals nor supersedes the twenty-fifth section of the original act. It limits the lien of judgments upon real estate to ten years, unless revived by scire facias, and takes the place of and supersedes the provisions of the original act as contained in sections 5 and 6 thereof, which are repealed. Judgment affirmed.


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    O’Neill vs. Bradford and another.
    Certieicate oe deposit—indorsement. A. transferred by indorsement to B. a certificate of deposit issued to Mm, to tbe effect tbat A. bad deposited in tbe Mineral Point Bank $70, to bis own account, subject to bis order on tbe return of tbe certificate ninety days after its date, in specie. Held, tbat sucb certificate was neither a bill of exchange nor a promissory note, and was not negotiable, and tbat A. was not liable on sucb indorsement, according to tbe law merchant. IAndsey v. MeOlellom, 18 Wis. 481; Lord v. Mitchell, 15 id. 304.
    ERROR to the District Court for Iowa County.
    The case is stated in the opinion of the court.

      F. J. Dunn, for plaintiff in error.

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

This suit was brought in the district court for Iowa county, by the defendants in error as indorsees, against the plaintiff in error as indorser of a certificate of deposit, of which this is a copy :

“Bank of Mineral Point, { June 4, 1841. j
70 dollars.
John P. O ’Neill has deposited in this office $70 to his own account, subject to his order on return of this certificate ninety days after date, in specie.
(Signed) POETEE BEACE, Teller.”

The declaration contains averments of an indorsement at the date of the certificate to the plaintiff, and a demand and notice usual in a declaration in a suit by indorsee against indorser of a bill of exchange. At the trial the court instructed the jury “that this certificate was subject to all the rules of law and evidence governing a bill of exchange, and particularly that a want of assets in the hands of the drawee would excuse a want of notice to the defendant of the non-payment of the certificate.” To-this opinion of the court the defendant excepted, and assigns the same for error. _

The court is satisfied that this paper cannot be treated in any particular as a bill of exchange. A bill of exchange is an assignment and appropriation of so much money in the hands of the drawee to the use of the payee. Conser v. Craig, 1 Wash. C. C. 424. If accepted, the right of the payee is a legal one. This certificate is not an assignment of so much money in the hands of any person, nor is it accepted. It is only an evidence of debt against the bank for the amount of $70. The money was deposited by O’ Weill to his own account, subject to his order on return of the certificate. The money passed to O’Weill’s own account in the bank, and could only be drawn out by him on his order and return of the certificate. The certificate merely raises or contains an implied promise of the bank to pay, on condition that O ’Weill shall d/raw his order on the bank for the money and return it. The relation of debtor and creditor is created; and the money having been deposited by O’Weill to his own account, by the rules of banking, might be applied by the bank to the payment of any demand it might have against the depositor. Albany Commercial Bank v. Hughes, 17 Wend. 94. This paper is not a negotiable instrument, according to the principles of the law merchant. It is not a promissory note according to the statute, for it contains no express promise to pay; nor as we have seen, is it a bill of exchange, nor does it partake of that character. It is supposed from the charge of the court, that the indorsement was considered effectively a bank check, which has most of the properties of a bill of exchange. A check must not only be indorsed to order, but must contain a request addressed to the cashier to pay, on presentment, a specific sum of money. For this purpose, an indorsement of this certificate is not sufficient. None but a commercial instrument is a subject of reference to fix the terms of an indorsement. This certificate probably, for the purposes of transfer, was payable to order, but for purposes of commercial responsibility was not negotiable. The supreme court of Pennsylvania, in Patterson v. Poindexter, in which Chief Justice Gibson delivered the opinion, published in the Law Reporter for April, 1844, decided that a certificate of deposit in these words :

“Mississippi Union Bank, No. 716, Jackson, Mississippi, July 2, 1839: I hereby certify that C. S. Torply has deposited in this bank, payable twelve months from 1st May, 1839, with 5 per cent interest, till due, per annum, $3,691 for the use of R. Patterson & Co., and payable only to their order upon the return of this certificate.” Signed, “C. W. Clifton, assistant cashier.” Indorsed, “Presented 1st May, 1840, Wm. P. Wynn, teller,” was neither a promissory note or bill of exchange, and was not negotiable. This case is an authority directly in point, and conclusive upon the case under consideration. It is considered by the court that the judgment of the district court of Iowa county be reversed.


text:
    Stone vs. Donaldson.
    1. Statute—fences and fence viewers. The act “concerning fences and fence viewers,” and the “act to permit certain animals to run at large” (Statutes of Terr.Wis, 114 and 117), were repealed by chapter 8 of the act of February 18,1841, giving to the electors of each town, at their town meeting, “ power to make such rules and regulations for ascertaining the sufficiency of all fences in such town, and for determining the time and manner in which cattle, horses, etc., shall be permitted to run at large; whether the town has acted on the subject or not.”
    2. Liabilitv of owner of Asmads. Where no regulation has been made on the subj ect under the act of 1841, parties have all their common law rights and remedies; and a party who sues for damages for the breaking and entering his close by the animals of another, may recover although it appears that it was not inclosed by a sufficient fence. Harrison v. Brown, 5 Wis. 27.
    ERROR to the District Court for Milwaukee County.

      Donaldson sued Stone in an action of trespass, for breaking and entering Ms close by Ms cattle, etc., and destroying Ms corn there growing. Stone pleaded not guilty, accompanying the plea with a notice that he would show that the fence around the plaintiff’s close was not a lawful one, and was not four feet and a half Mgh.
    The plaintiff recovered judgment before the justice and the defendant appealed to the district court. The ruling complained of upon the trial in the district court, is stated in the opinion'of this court.

      Jonathan E. Arnold, for plaintiff in error.
    The statutes of Wisconsin, 114, prescribe what shall be a lawful fence, that it. shall be four and a half feet high, and at page 117 it is provided that the owner of animals shall not be liable for trespass unless the premises are inclosed by a lawful fence. The statute has taken away the common law right of recovery in such cases. The town law of Peb. 18, 1841, is but a naked grant of power to the electors of the town, and until they act under it, the old statute controls. Such laws prevail in most of the western States, and have been sustained by the courts.

      H. N. Wells, for defendant in error.
    1. At common law the plaintiff could recover. This is conceded. We deny that the statute has taken away the common law right of recovery. The township act, giving to the several towns the power to regulate the height of fences, and determine what animals shall run at large, and during what seasons of the year, is a virtual repeal of the statute relied on by the plaintiff in error. The statute does not however, authorize individuals to depasture the highway with their cattle, and if such a construction could be put upon it, then it is unconstitutional.
    2. That the public acquire only a right of passage, and that the soil, timber and herbage belong to the owner of adjoining land has been long and well settled. Cowen’s Treat. 380, 387, and cases there cited. The legislature has no right to regulate fences and authorize cattle to run at large, and make them free commoners on the public highway.
   Miller, J.

The defendant in error originally instituted this action of trespass before a justice of the peace of Milwaukee county. The defendant appealed to the district court of said county, where a verdict and judgment were rendered against him. _ The trespass complained of-was the breaking plaintiff’s close, and destroying his corn, by defendant’s cattle. At the trial conflicting evidence was given respecting the height of plaintiff’s fence, the question being whether it was four and one-half feet high.

The court was requested to charge the jury: “ That if they believed that, at the time of the alleged trespass, the fence inclosing the plaintiff’s field was less than four feet and one-half high, then said fence was not a legal fence, and by law the plaintiff could not recover. ’ ’ This instruction was refused by the court, and the defendant assigns this as the only error on which he relies in this court. Two other assignments of error were abandoned by the counsel, and consequently, do not require any consideration.

This instruction was asked for, on the supposition that the “act concerning fences and fence-viewers” and the “act to permit certain animals to run at large,” on pages 114 and 117 of the statutes, were in force in Milwaukee county; but such is not the case. “An act to provide for the government of the several towns in this Territory, and for the revision of county government,” approved Feb. 18, 1841, is in force in said county. The third section of chapter 3 of said act allows to the electors of each town, among other things, at their town meetings, power “to make such rules and regulations for ascertaining the sufficiency of all fences in such town ; for determining the time and manner in which cattle, horses, sheep or swine shall be permitted to run at large,” etc. By this act the legislature conferred the control of this subject upon the people, and thereby, the acts referred to in the Revised Statutes have been annulled. The acts referred to are annulled or virtually repealed, whether the towns should ever act upon the subject or not. They may do it or not, at their pleasure, and where no regulation has been made according to the provisions of the act of February, 1841, the citizens are not restrained of their common law rights or remedies. Bush v. Brainard, 1 Cow. 78.

In this decision of the district court there was no error, and the judgment must be affirmed, with costs.


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    The Territory of Wisconsin vs. Doty and others.
    1. Petit jurors — yenere. Where the whole number of petit jurors provided by law were not summoned, while the court may award a venire for a sufficient number of talesmen to make up the deficiency, yet, the court is not bound to do so at the request of a party to a cause about to be tried, but will be governed in that respect by the nature and amount of business pending.
    3. Drawing jury. Where there is no statute requiring it, it is not error for the court to refuse to permit a jury in a civil cause to be selected by placing the names of all the jurors on separate pieces of paper and drawing them by lot.
    S. Separation oe jury, etc. It is common practice to allow the jury in the trial of a civil case, to separate during the recess of court, and it is not necessary that they should be kept together under the charge of a sworn officer, and although it is proper that the court should caution them against the approaches or intrigues of dishonest or ignorant persons, yet the omission to do so is not error.
    4. Witness-—-privilege. A competent witness cannot be excused from answering a question relevant to the issue, on the ground that his answer to such question may establish or tend to establish that he owes a debt or is subject to a civil suit, and it is error to allow such an excuse to prevail.
    5. Exceptions. The rulings of the district court admitting evidence cannot be reviewed unless the evidence objected to, is incorporated in a bill of exceptions.
    6. Motion eor new trial—costs. Where a verdict is set aside and a new trial is granted, on the ground that the verdict is against the law it should be done unconditionally and without terms.
    7. Judgment against territory, etc. A judgment cannot be rendered against a sovereignty, unless express authority therefor is given by law.
    8. Territory not suable. By the organic act creating Wisconsin Territory, a government was created subject to the control of and immediately connected with the government of the United States, and for all necessary purposes of government, it is as a sovereignty, can maintain actions in the courts within its limits, but cannot be sued in such courts unless a statute expressly authorizes it; nor can judgment be rendered against it in an action which it has instituted, for costs.
    9. Territorial enactments. Laws passed by the legislative assembly of the Territory and approved by the governor, are valid and operative until annulled by the disapproval of congress.

      EEEOE to the District Court for Walworth County.
    The action was commenced in the district court for Iowa county in 1839. The declaration was in case and contained three counts. The first count charged that the act of congress organizing Wisconsin Territory appropriated $20,000 to the Territory to be applied by the governor and legislative assembly in the erection of public buildings, etc.; that the seat of government was located by act of assembly at Madison, which also provided that three commissioners of public buildings should be selected by joint ballot of both houses, whose duty it should be to cause public buildings to be erected, and they were authorized to draw from the treasury of the United States such sums as had been or might be afterward appropriated for that purpose ; and it averred that on the 7th of December, 1836, the defendants Doty, 0 ’ Weil and Bird were duly elected commissioners of public buildings, and that afterward and on the 1st of February, 1837, they drew and received from the treasury of the United States $20,000, to defray the expense of erecting public buildings, knowing the same to be the property of the Territory, and that the defendants neglected and refused to expend said money in defraying the expenses of erecting public buildings at the seat of government, although they received it for that purpose and no other, but converted the same to their own use.
    The second count alleged that congress by act of June 18, 1838, appropriated $20,000 for completing the said public buildings, and that the same or so much thereof as should be necessary for that purpose, should be expended according to the act of the legislative assembly establishing the seat of government, approved December 30,1836; and that on July 1,1838, the defendants drew and received from the treasury of the United States the last mentioned sum of $20,000, well knowing it to be the property of the Territory, and had neglected and refused to expend the same in defraying the expenses of completing said public buildings, although they received the same for that purpose and no other, but converted and disposed of the same to their own use. The third count was for the trover and conversion of $40,000.

      Doty and Bird pleaded in abatement that the plaintiff was a Territory and not a sovereign State, and as snch, was not capable of suing and being sued, etc., to which the plaintiff demurred generally. O ’ Neil demurred generally to the declaration.
    The district court for Iowa county overruled the plea in abatement and the demurrer of 0 ’Neil to the declaration. Doty and Bird then asked leave to file a general demurrer to the declaration, which was refused. The defendants then separately pleaded the general issue, and gave notice of special matter.
    At the September term, 1841,. on application of the defendants, the venue was changed to Walworth county. At the October term, 1841, of the district court of Walworth county, the defendants moved the court to dismiss the cause, because:
    1. The suit was not brought in the proper court, having jurisdiction.

      2. The suit was not brought by any person authorized by law to bring the same.
    3. There was no authority of law for bringing and prosecuting the suit.
    4. The venue ought not to have been changed to a county ont of the district in which the action was commenced. The court overruled the motion. The cause was tried at the April term, 1843, and in the progress of the trial, the plaintiff’s counsel excepted to the following decisions of the court: In refusing to award a special venire, when a full panel of jurors did not appear; in refusing to order a ballot for the jurors to try the cause ; in refusing to compel Morrison, a witness for defendant, to answer a question put by plaintiff’s counsel, and in sustaining an objection of the defendant’s counsel to a question asked Mills, a witness for plaintiff, “What was the character and kind of funds paid out by the commissioners of public buildings in the erection of the capitol?” Stating that they expected to prove that they had paid out a depreciated currency ; and in permitting the defendants to read in evidence to the jury, certain extracts from the journal of the territorial council. The jury found for the defendants, and the plaintiff moved for a new trial. 1. Because the verdict was against the law. 2. Because the verdict was against the evidence. A new trial was granted on condition that the plaintiff should pay the costs. At a subsequent day in the term, it appearing that the costs had not been paid, judgment was rendered against plaintiff for the costs of the action. The facts in relation to the exceptions taken during the trial are stated in the opinion of the court. The record does not show that the reasons assigned for a new trial were made part of the record by bill of exceptions; nor that the terms imposed in granting the motion were excepted to in the court below. The Territory sued out a writ of error, and assigned errors as stated in the opinion of the court.

      J. Gf. Knapp and J. H. Knowlton, for plaintiff in error.
    1. A new venire should have been awarded. Hob. 235. The panel of the jury means, not the twelve who shall try the cause, but the whole thirty-six. The plaintiff was entitled to a full panel of thirty-six, and the court ought either to have issued the venire, or attached the absent jurors. Stat. Wis. 271, § 34; Hex v. Edmonds, 4 Barn. & Aid. 472 ; Bull. N. P. 397 ; United States ». HasJcel, 4 Wash. C. C. 412..
    2. It may be that the practice of balloting has not prevailed, in this country, but if upon principles of law it should, then this court should establish the rule. Bull. N. P. 304; 16 Yin. Abr. 216, title “Trial” d. and c. 2. This was under Stat. 7 and 8 Wm. III. The organic law secures the right of proceedings according to the course of the common law. The rule contended for was established in the case of Robinson v. OcmpbeTl, 3 Wheat. 221; 1 Bald. Cir. C. 557. English statutes which extended to the colonies, or were adopted by practice or by legislation before the revolution, are a part of the common law. Withers v. Keeler, 11 Serg. & R. 273 ; United States v. Mundell, 6 Call. 258; 4 id. 98.
    4. The court erred in refusing to compel Morrison to answer the question put to him. Stat. of Wis. 249, § 7. The principle of this statute prevailed at common law. Ex parte Chamberlain, 19 Ves. 480; Black v. Crouch, 2 Lit. 226; Baird v. Collins, 4 Serg. & R.; Hants n. Van Swearingen, 7 id.
    5. The court erred in admitting extracts from the journal of the council in evidence. The book bore no evidence that it was published by the public printer or by authority of law. Leland v. Wilkinson, 6 Pet. 318.
    6. The court erred in requiring the plaintiff to pay costs as a condition of granting a new trial. Where a new trial is granted because the verdict is contrary to law or evidence, it is without payment of costs, which must abide the event of the suit.
    7. It was error to render judgment against the Territory for costs. The Territory is itself as sovereign and supreme within the limits of its organic law as a State under its constitution. A suit cannot be sustained against the government, and judgment cannot be given it for costs.

      A. L. Collins and T. P. Burnett, for defendant in error.
    1. The record does not show upon what ground the court excused Morrison from answering. Other reasons may be inferred for the decisions. It was contended then, as now, that the question was not relevant to the issue. This was not an action to recover so much money had and received, but to ascertain how much damages the plaintiff had sustained from an alleged misapplication of the plaintiff’s money. The true inquiry was, how much the value of the buildings fell short of the money received, and whether this deficiency was occasioned by the tortious neglect or mismanagement of the defendants. 1 Chitty’s Plead. 145. Special damages were not alleged and conld not be proven. 14 Wend. 159.
    2. The journal of the council is not made a part of the record by bill of exceptions, so that the court can see whether it was properly admitted. Error is not to be presumed, and the presumption is that the court ruled correctly. Doty v. Strong, ante, 313. But if this ruling could be reviewed here, it will be found that it was correct. 1 Stark. 198; 7 Johns. 38; 5 Term E. 436; 1 Cranch, 38.
    3. The practice in this country has been to impose terms, as a condition of granting a new trial. The matter is entirely in the discretion of the court, and cannot be error.
    4. If the Territory is sovereign, and cannot be reached by execution or other process, it cannot be injured by the judgments against it for costs, and the error complained of is an immaterial one. But the Territory has no attribute of sovereignty, it is entirely under the control of and dependent upon congress. If sovereign, it could make its own laws without being questioned by any other power, create and establish its own courts and provide for and create its own officers, executive and judicial, define their duties and limit their term of service. AE enactments of this aEeged sovereign power must be submitted to congress, and are of no effect if disapproved by congress. Organic Act, § 6.
    5. The Territory is not even a corporation, capable of suing in the courts.
   Miller, J.

This case was tried in the district court for Walworth county, where a verdict and judgment were rendered in favor of the defendants. It is brought to this court by a writ of error, issued at the instance of the Territory. The errors assigned wEl be considered in them order.

The first assignment of error is, that the district court erred in refusing to award a venire facias to the sheriff to fill the panel of jurors to the number of thirty-six.

The whole number of the petit jury were not summoned by the sheriff, as appeared by his return. By section 35 of the act concerning grand and petit jurors, if for any cause, the whole number of any grand or petit jury should fail to be summoned, according to the provisions of the act, the judge of the court may direct the clerk to issue a venire to the sheriff, or other officer, directing him forthwith to summon a sufficient number of talesmen for such grand or petit jury. The court or judge is not obliged to issue this special venire, but is to be governed therein by the nature and extent of the business pending. The whole panel very rarely is summoned or in attendance, but the court never awards a special venire on this account unless the state or nature of the business in court should require it.

The second assignment of error is, that the court refused to permit, on the motion of the plaintiff’s counsel, the jury to be balloted for, by placing the names of all the jurors on separate pieces of paper, and drawing them by lot.

Although this would be a correct practice, and is generally pursued, yet it was not then the practice in the second district; and the statute not requiring it, we will not reverse the judgment for this cause.

The third assignment of error is, that the court allowed the jury to separate during the trial of the cause, without being under the charge of a bailiff, sworn to keep them according to law, and that the court made no order which appears of record, that said jury should not converse with the parties or their agents in relation to the suit, while thus separate ; and that it does not appear by the record that the consent of the plaintiff was obtained for such separation.

It is not necessary that such things should take place, or that they should appear on the record. It is common practice for the jury, in civil suits, to separate during the recess of the court, although it may be proper in the court to caution the jury against the approaches or intrigues of dishonest or ignorant persons, yet an omission to do so is not error.

The fourth assignment of error is,- that the court refused to receive testimony in relation to the character and kind of funds paid out by the defendants, as commissioners of public buildings.

This was abandoned by the counsel at the argument.

The fifth assignment of error is, that the court refused to require James Morrison, a witness on the part of defendants, to answer a question put on the part of the plaintiff, on the ground that his answer might tend to establish a civil liability against him and in favor of the Territory.

The record shows that this witness was called by the defendants, and that he testified that he was contractor of the public buildings, and as such contractor received from the treasurer of the commissioners of public buildings, moneys, in the months of June, July and August, 1838. The counsel of the plaintiff then asked the witness ■ ‘ ‘ how much money he had so received, and the times of its reception, which question the witness declined answering, for the reason that the answer might tend to establish a civil liability from him, to the Territory of Wisconsin in a suit that might be brought against him for a breach of his contract, and the court decided that the witness should not be required to answer the question.” By section 70 of the act concerning testimony and depositions, on page 249 of statutes, any competent witness in a cause shall not be excused from answering a question relevant to the matters in issue, on the ground, merely, that the answer to such question may establish or tend to establish that such witness owes a debt, or is otherwise subject to a civil suit. It may be that this question was not relevant to the matter 'in issue; and if it were not, the court was right in the decision made. But it does not so appear on the record. Both sides seemed to consider the testimony of the witness relevant to the matter in issue, and there is no other reason given for his refusal to answer, in the decision of the court, but the one above stated, which is not sufficient in law to excuse him. This court has not the whole evidence in the cause, from which we can judge of the relevancy or irrelevancy of this question. We must dispose of the error assigned from the bill of exceptions alone, which affords no further information upon this point than is stated above. Being then confined in our examination to the bill alone, we have to decide that the reason given by the witness for his refusal to answer the question is not, in law, sufficient to excuse him, and that the court should have required the witness to answer. We do not intend to direct by this decision that on another trial the witness shall answer this question whether relevant or not to the issue, but of that the court is to determine, if necessary.

The sixth assignment of error is, that the court admitted as evidence to the jury, various extracts from a pamphlet entitled “Journal of the Council of the First Legislative Assembly.of Wisconsin, at the Second Session thereof, begun and held at Burlington on the 6th day of November, A. D. 1837. Published for the Territory by F. J. Munger, 1838. R. P. Brooks & Co., printers, No. 1 Baker street, Cincinnati, O.,” which were offered for the purpose of showing the action of the council in relation to the proceedings of the defendants as commissioners of public buildings. The description or title page of the pamphlet is here given, and nothing more. . We have not been favored with it, or a copy of it, or of that part which was read in evidence, by which to decide whether it is legal evidence or not. Error is not to be presumed.

The seventh assignment of error is that the court sustained a motion for a new trial made on the ground that the verdict was contrary to law and evidence, on condition of the payment of all the costs by plaintiff. A motion for a new trial is usually addressed to the discretion of the court, and, unless authorized by statute, is not the subject of a writ of error. Woods v. Young, 4 Cranch, 237; Henderson v. Moore, 5 id. 11; Bar v. Gratz, 4 Wheat. 213. Under onr statute, questions of law wMch may arise upon such motion are legitimate subjects of investigation in this court. Generally a court in the exercise of its discretion, in disposing of motions for new trials, can make such order or grant the motion on such terms as may be just. But, when a verdict is set aside on the ground that it is against law and evidence, it should be done without terms. It is the duty of the jury to take the law from the court. It is the province of the jury to decide the facts, and of the court to decide the law. And if the jury should disregard the charge of the court upon the law of the case, it is the duty of the court to set aside the verdict unconditionally. And if it should appear that the court has misdirected the jury as to the law, the verdict should also be set aside by the court unconditionally. When the jury has disregarded the charge of the court, justice can only be done by setting aside the verdict and allowing a second trial, for an error of the jury cannot be reached by writ of error. When the court errs in the law of the case, the supreme court will reverse the judgment and direct that a venire facias de novo issue without terms, unless it plainly appears by the record that the plaintiff cannot recover under any circumstances. For tins reason, the court that decides a cause, when convinced of error in the law, should order a new trial unconditionally.

The eighth assignment of error is that the court entered judgment against the plaintiff. It is a general rule that a judgment cannot be rendered against a sovereignty, unless authority therefor is given by law. The United States never pay costs, nor can a court enter a direct judgment or decree against the United States for costs and expenses in a suit, to which the United States is a party, either on behalf of any suitor or any officer of the government. United States v. Barker, 2 Wheat. 395; The Antelope, 12 id. 546. The sovereignty of this section of the north-western territory is yet in the United States, and in pursuance of that clause of the Constitution giving to congress the power to dispose of, and make all needful rules and regulations respecting, the territory of the United States, the act establishing the territorial government of Wisconsin was passed. By that act a government was established or created, composed of executive, legislative and judicial branches. The governor is commander-in-chief of the militia, is to approve of laws passed by the legislature, can grant pardons, can •commission officers, and shall take care that the laws be faithfully executed. The legislative power extends to all rightful subjects of legislation. But the laws of the governor and legislative assembly shall be submitted to, and if disapproved by the congress of the States, the same shall be null and of no effect. That is, the laws passed by the legislature are valid until annulled by the disapproval of congress. The judicial power of the Territory is vested in a supreme and other courts, which possess chancery and common law jurisdiction. They are courts of record. And the district courts possess the same jurisdiction in all cases arising under the constitution and laws of the United States, as is vested in the circuit and district courts of the United States. Writs of error and appeals from the final decisions of the supreme court are allowed to the supreme court of the United States in cases exceeding in amount $1,000. Hence it is apparent, that by this law, a municipal corporation, or government, is created, subject to the control of and immediately connected .with the government of the United States. By virtue of its incorporation, and as a necessary means of protecting its rights in all contracts, the Territory can maintain an action in the courts within its limits. By virtue of its incorporation, all the powers and functions of a sovereignty exist — subject only to the supervision and control of the general government. The officers in all branches of the government of the Territory are entitled to similar rights and privileges, and are subject to similar pains and penalties, to those of a sovereign State. And similar provisions are made for the settlement and adjustment of claims against the Territory, and for the disbursement of territorial funds, to those in existence as a sovereign State. For all necessary purposes of government, Wisconsin is as a sovereignty, and should be entitled to the same immunities. It is a Territory of the United States, and is considered thereby a part of the United States or immediately connected therewith. For these reasons we come to the conclusion, that the Territory of Wisconsin cannot be sued in the courts of the Territory in the absence of express authority of law for that purpose. The judgment against the Territory for the costs expended by the defendants in this case must be reversed.