text:
    Stokes vs. Brown.
    1. Infancy — Confirmation.— Anote given by one during bis minority is voidable, but may be confirmed by bim on arriving at full age, so that be will thereafter be liable thereon as if be bad been suijivris when be gave it.
    2. Same. — Any act or declaration which recognizes the existence of the promise as binding is a ratification of it. So where after arriving at full age, the defendant promised to deliver corn on account of the note, fixing the price but not the quantity: Held, a ratification of the note.

      (4 Chand., 39.)
    ERROR to the Circuit Court for Jefferson County.
    Action of debt by StoJces against Brown on a sealed note given March 16, 1837, by the latter to the former. The defendant pleaded nil debit and infancy at the time of giving the note, and to the latter plea the plaintiff replied ratification and confirmation of the contract after the defendant became of age, which was June 3, 1837.
    The evidence to support the alleged confirmation is stated in the opinion of the court. The circuit court gave judgment for-the defendant, and the plaintiff sued out a writ of error.

      Sleeper & Da?iiells, for plaintiff in error,
    argued that the evidence of confirmation of the contract by Brown after arriving at full age, was sufficient to entitle the plaintiff to recover, and cited Cheshire v. Barrett, 4 McCord, 241; Whitney v. Dutch, 14 Mass., 457 ; Martin v. Mayor, 10 id., 137; Barnaby v. Barnaby, 1 Pick., 221; 2 G-reenl. Ev., 345. He could not plead ignorance of his right to disaffirm it. Billy v. Burnley, 2 East, 467 ; Bundle v. Bolertson, 7 id., 231; Stevens v. Jjynch, 12 id., 38. A hond given by an infant, upon his arriving at full age may be repudiated, but if ratified by an oral agreement to pay, he is bound. 13 Mass., 239 ; 2 Greenl. Ev., 345, note 6 ; 14 Mass., 457.

      D. Moggie, for defendant in error,
    argued that a bare acknowledgment or recognition of the existence of a prior contract after arriving at full age was not sufficient ratification, nor was part payment; that nothing less than an express promise to pay the debt in full would suffice; and cited 3 Steph. N. P., 20, 60 ; Ohitty on Cont., 152 ; 14 Mass., 460 ; 4 Pick., 48 ; 10 N. H., •561; 10 Johns., 33 ; and that the plaintiff should have declared on the new promise. 1 Scam., 486.
   Howe, J.

To a suit upon a sealed promise to pay twelve hundred and fifty-three dollars, the defendant interposed a plea of infancy. The plaintiff replied a ratification of the promise after the defendant became of age, upon which there was an issue tried and determined by the circuit court for Jefferson county, a jury having been waived.

To maintain the issue on his part, the plaintiff gave in evidence an indorsement upon the note in these words :

“ Received, July 17, 1837, of Joseph Addison Brown, thirty-five dollars, interest on this note.
“$35 (Signed) Stogdell Stokes.”

Also the deposition of one William Eastburn who testified, “I heard Joseph A. Brown, the defendant, promise Stogdell Stolces the payment of the note he owed him, the said plaintiff.” He then fixes the time of the promise in December, 1842, and describes the note in suit.

Upon cross examination he testified as follows : “ The words that Brown used in making the promise mentioned in my ex-animation in chief were as follows : “ Stogdell StoJces presented the note he held against Brown to him for ’payment. Brown stated he had a good crop of corn, and asked StoJces if he would take corn on the note. StoJces said he would deliver it at StoJces’ mill, as soon as he could get it threshed.” The defendant became of age on the 3d of June, 1837. The suit was-commenced in 1847. The circuit court held that the promise proved by Eastburn was not such a new promise, nor such a ratification of the promise contained in the note, as entitled the plaintiff to recover, and accordingly gave judgment for the defendant. The plaintiff excepted, and our writ of error has brought the record here. ,

The error complained of is not that the judge held the evidence insufficient to prove a ratification of the contract. That is a question of fact, and an error in that behalf could not be corrected here. But the judge held that the promise proved did not amount to a ratification, and that was a question of law purely. Upon this question no position can be assumed which has not been controverted by the courts. Some courts have held such a contract to be absolutely void, while others have held it to be voidable.

Admitting the promise to be voidable, courts have differed upon the question whether it was necessary for the promissor to affirm or disaffirm the contract after arriving at full age. Some held it necessary that the promise should be expressly affirmed, while others have thought an affirmance might be implied from a neglect to disaffirm within a reasonable time; but admitting a direct affirmance to be necessary, every possible variety of opinion may be found in the reported cases upon the question as to what acts or what words will amount to such an affirmation or ratification.

It has been held in Pennsylvania, that a confirmation by an infant who was merely security for another must be made with the intent of confirming, and with the knowledge that the act would be void unless he confirmed it, and there should be evidence of a distinct act of confirmation. 11 Serg. & R., 305; 3 Bar., 428.

In South Carolina, on the contrary, where an infant made a note, and after arriving at age, upon payment being demanded, said, “ I will pay it as soon as I can make it, but I cannot do it this year. I understand that the holder is about to sue it, but she had better not.” It was held an affirmation of the contract, and that an action lay presently. 2 Bailey, 114. It would be difficult, perhaps, to extract a rule from the cases reported, which would be capable of universal application. It is, however, safe to assert as a principle now well settled, that the contract declared upon in this suit, is voidable merely and not void, though made during infancy, as are all contracts (not otherwise objectionable) which may be beneficial to the infant. 1 Met., 559 ; 10 N. H., 561; 8 Green, 405 ; 11 Wend., 86 ; 4 McCord, 221; 3 Yt., 353. And being merely voidable, if it will not do to say they continued valid until they are avoided, it is at least safe to affirm that they will become valid when ratified by the party after he shall have attained full age.

I think it also fair to assume that courts, when conceding to a party the right to ratify his voidable contract, have intended to assert something more than the power to make a new contract. In other words, I think it reasonable to hold that the right to avoid a voidable contract may be waived by something short of a new and express promise to perform it. In England it is indeed necessary that the ratification should be in wniting, but that is only by force of a very recent enactment, to wit: 9 Geo. IV, ch. 14, sec. 5.

Apart from that act, it has been said that “ any act or declaration which recognizes the existence of the promise as binding is a ratification of it, just as in the case of agency, anything which recognizes as binding an act done by an agent, or by a party who has acted as agent, is an adoption of it. Harris v. Wall, 1 Exch., 122.

If this rule be the correct one (and I see no good reason for disturbing it), there cannot be a doubt of the sufficiency of the ratification proved. Upon the argument much importance was attached to the fact that the defendant did not specify the quantity of corn he would deliver, and this case was supposed to be analogous to the case of a part payment, which has been held neither to ratify the contract of an infant or to revive a promise barred by the statute of limitations. But there clearly is no just analogy between the two cases. Eor it is difficult to understand how the mere act of paying money can be held to recognize or create a liability which it does not extinguish at the same time. In Hartley v. Wharton, 11 Ad. & E., 934, the evidence relied upon to show a ratification, was a letter from the defendant in these words: “ Sir — I am sory to give you so much trouble in calling, but I am not prepared for you, but will, without neglect, remit you in a short time.” And upon full argument upon this omission to name the sum, the court unanimously agreed that it was a sufficient ratification.

But the evidence in this case seems to me to be even less equivocal. The defendant was called upon for payment of the note. His answer to this demand was a promise to deliver corn, taking no care to name the number of bushels, but taking good care to fix the price. If this could be understood as a promise to deliver his crop of corn more or less, or a specified quantity of the same, the price was immaterial to both parties, for in either case the delivery would extinguish all the liability created by the promise, whether the corn was valued at one shilling or one dollar per bushel. I am unable to understand this evidence as showing anything less than a complete recognition of his liability to pay the whole note, which was demanded of him, and an express promise to discharge that liability with corn at an agreed price.

Accordingly the judgment of the circuit court must be reversed, and the cause remanded.


source: Caselaw Access Project

author: Hubbei/l, 0. J.

license: Public Domain

text:
    Kneeland and others vs. Cowles and another.
    1. Garnishee Proceedings.— In serving garnishee process under the attachment act, it is not necessary that the officer formally attach the rights or credits of the principal debtor in the hands of the garnishee. It is enough to serve the attachment and required notice on the garnishee for him to appear and answer.
    2. Attachment — Jurisdiction. — Where in an attachment suit, the court acquired jurisdiction solely through the garnishee process founded on it, it is not necessary that the garnishee should answer before Anal judgment can be rendered in the attachment suit; the service of the attachment, affidavit and notice having fixed the liability of the garnishee.
    3. Assignment — Preferences. — Sec. 13, p. 173 of the territorial statutes of 1839, applied only to debtors seeking a discharge from their debts in insolvency proceedings, and did not preclude a debtor from making an assignment with preference, when no discharge from his debts was sought.
    4. Same — Fraud. — An assignment made by a debtor to one of his creditors, giving him a preference over others, with a proviso that the balance of the stock, if any, should be paid to such debtor or to his other creditors, as the said preferred creditor might see fit, is not void as a matter of law.
    5. Same. — Such an assignment is not void under the statute declaring that all deeds, transfers, etc., made in trust for the use of the person making the same, shall be void as against the creditors existing or subsequent of such person, unless the party making the same is insolvent or in failing circumstances, or actual fraud is shown.
    (4 Chand., 46.)
    ERROR to the Circuit Court for Mihuaukee County.
    A suit was commenced, by Cowles and Bass against James Holden and De Witt Holden, by attachment, and process of garnishment was issued against James Kneeland, William Brown and Milton K Lyman-, composing the firm of James Kneeland & Co., and served with a copy of the attachment, requiring them to appear in court on the return day of the attachment, the first Monday in February, 1850, and answer, etc.
    The plaintiffs obtained judgment against the defendants in the attachment suit, on the return day of the writ, by default, for $1,045.80 damages and costs. Afterwards, at the next term of court, May 16, 1850, it was ordered, by consent of the plaintiffs and garnishees, that the court commissioner be directed to cause the garnishees to be examined before him, on a notice of one day to either party; and, on the 22d of the same month, pursuant to such order, they were so examined, disclosing that, on the 29th of November, 1848, the Holdens were carrying on a mercantile business at Mackford, and on that day they executed to the garnishees, James Kneeland & Go., an assignment, reciting that they were indebted to them in the sum of $1,527.75, and to secure the same, “sold, transferred and delivered to said James Kneeland & Co. all their stock in trade, consisting of merchandise, books, accounts, notes, horses, wagons, etc.; ” that it was “ understood that, after paying James Kneeland & Go. the said amount due them, and any amount they might see fit to put in said stock for the purpose of keeping it in a salable condition, and any expenses incurred in selling it, * * said James Kneeland & Go. are to pay Thomas S. Gordon, $329.54; A. H. Atkins, $217.95; Sexton, Wing k Co., $354.00, to be paid after paying the above specified amounts ; the balance of the stock, if any there be, to be paid over to the said J. &.D. W. Holden pro rata, or to their creditors, as the said James Kneeland & Go. may see fit; the amount of stock to be decided as follows: All goods taken at marked cost, then deduct twenty per cent, as per invoice; ” that they received from the Holdens, under the assignment, at its date, a quantity of goods invoiced at $2,465.29, twenty per cent, being deducted; that they advanced goods to keep the stock in question in a salable condition, so that the advances and expenses of selling, with their debt, amounted to $2,708 ; that the goods had been disposed of, and the amount realized was $3,606.90, and that there were notes and accounts outstanding, due for sales made by them, to the amount of $1,140, and that the notes and accounts received by them, under the assignment, in the hands of one Welch for collection, amounted to $617.00; that when they took the assignment, they understood that there were other debts due from the Holdens not mentioned in the assignment; that they could not say whether the Holdens were insolvent. Upon this disclosure, on motion of the plaintiffs, after argument of counsel for the parties, judgment was rendered against the garnishees for the amount recovered by the plaintiffs for their damages and costs in the attachment suit. The garnishees, Kneeland, Brown and Lyman, sued out a writ of error.

      Charles James and H S. Orton, for plaintiffs in error.
    1. The original judgment in the attachment suit is erroneous as there was no property attached under the writ. Martin v. Dryden, 1 Gilman, 187, 212 ; 4 id., 511, 520; Peirce v. Jaclcson, 6 Mass., 242, 244; Bedlam v. Tucker, 1 Pick., 389 ; Bagley v. White, 4 id., 895; .11 id., 341, 519, 525. 2. When the judgment was rendered, there was no evidence that the garnishees were indebted to the defendants in attachment as they had not a.nswered, and so the court had no jurisdiction. Holey v. Pepper, 5 Robinson, 119. And that such judgment was no evidence of indebtedness and did not authorize judgment against the garnishees. 4 Gilm., 511. 3. The statute in relation to garnishee proceedings is unconstitutional and void, it not providing for a tidal by jury and in effect denying it. Parsons v. Bedford, 3 Peters, 433; 3 Story Com., 632, et seq. 4. The proceedings against the garnishees involved a question of intent to defraud which was a question for a jury and the answers of the garnishees did not warrant the judgment rendered against them.

      K G. Ryan, for defendants in error :
    1. The assignment from the Holdens to Kneeland & Co., was void as against their creditors for the preference given. R. S., 1839, 173, § 13 ; Perry v. Holden, 22 Pick., 269 ; Woodward v. Marshall, id., 468 ; Fairbanks v. Haynes, 23 Pick., 323 ; Henshaw v. Sumner, id., 446; Hopkins v. Ray, 1 Met., 79,
      Brown v. Foster, 2 id., 152 ; Biggs v. Murray, 2 Johns. Ch., 565; Burlingkam v. Bell, 16 Mass., 324; Harris v. Sumner, 2 Pick., 129; Machie v. Cairns, 5 Cow., 584; Grover v. Wake-man, 11 Wend., 187; Goodrich v. Downs, 6 Hill., 438.
    2. Garnishee process is the proper remedy for creditors of the assignors. Hastings v. Baldwin, 17 .Mass., 552 and cases cited supra. 3. The question of fraud arising on the face of the written instrument was a question of law for the court and not of fact for the jury. Harris v. Sumner, 2 Pick., 129; Goodrich v. Downs, 6 Hill, 438. There was no issue of fact for a jury ; the garnishees having admitted enough to charge them. 4. The garnishees cannot question the judgment against their assignors and it was not necessary that they should answer before judgment could be given in the attachment suit. The statute contemplates a recovery first against the defendants in the attachment suit. The garnishees can only question the correctness of the judgment against them. On the one against the defendants in the attachment, they cannot be plaintiffs in error.
   Hubbei/l, 0. J.

Several points were decided in this case, which I shall consider in their order.

1. The service of the garnishee process was regular and valid. It is not necessary, under the present statute, to attach the rights or credits of the principal debtor, in the hands of a garnishee. It is enough, if the officer cannot attach property and get possession thereof, that he shall “serve the writ and affidavit upon such person, by giving him a copy thereof, with a written notice that he appear in court at the return of such writ.” R. S., ch. 112, sec. 32. Nor was it necessary that the garnishee should answer before judgment against the defendants in the principal suit. It is true, the court acquired jurisdiction in the principal case solely through the garnishee proceeding. But when the garnishees had been served with the writ, affidavit and notice, their liability had been fixed; and although the evidence of property in their hands may not have been given until after judgment against the principals, the fact existed, and that was sufficient. This is the application of an ordinary principle. The return of an officer to a writ of summons, personally served, may not be'filed in court until after judgment; but if service has in fact been made, the court acquired jurisdiction, and the return may be made afterwards.

2. The assignment to the plaintiffs in error was not within the act relating to insolvent debtors. Sec. 13, p. 173, Stat. 1839. That statute applied only to debtors seeking a discharge from their debts under the assignment, and did not preclude assignments giving preferences, when no discharge was sought. It does not appear, from the authorities cited, that the courts of Massachusetts held otherwise. The case of Perry v. Holden, 22 Pick., 269, was an attempted assignment under the statute. The court held that a mortgage previously executed by the assign- or, by which he had given a preference to creditors, was a part of the same transaction with the assignment, and that both were void. Fairbanks et al. v. Haynes et al., 23 Pick., 323, was a similar case. But there, the' mortgage being a separate transaction, and no collusion being shown with the assignees, the assignment was sustained, though it was intimated that “ the debtors would lose the privilege of obtaining their discharge.” Henshaw et al. v. Sumner, id., 446, decides simply, that certain instruments, executed by an insolvent debtor, were not assignments in trust, and hence were valid. The other cases to which this court is referred came no nearer to deciding the point claimed by the counsel of the defendants in error, to-wit: that during the existence of the statute of 1839, no assignment could be made by any debtor, securing preferences among his creditors. I leave this branch of the case by citing one clause from the opinion of Chief Justice Shaw, in Perry v. Holden, supra, showing his opinion of the design of the statute in question. In setting forth what the avowed purpose of the statute was, and after commenting upon the first principal provision, he adds : “ The other provision, founded on the same principle of equity and policy, is, that the debtor shall have no benefit of his discharge, ií he has in contemplation of an assignment, made any payment, or made any conveyance of his property, with a view to give any creditor a preference.”

3. The assignment was not on its face void, as to creditors. The provision that “ the balance of the stock, if any there be, be paid over to the said J. & D. W. Holden pro rata, or to their creditors, as the said James Kneeland & Co. may see fit’,” presented a question of intent for a jury. It was not necessarily a provision for the use of the assignors. The clause might conceal a fraud, and it might not; but the court was bound to presume an honest purpose and to give the instrument such a construction as would sustain it, rather than defeat it, unless the fraudulent intent was made to appear, as a matter of fact. There is nothing in Goodrich v. Downs, 6 Hill, 438, which conflicts with this view of the case. There, an absolute and unconditional provision was made, for the use of the assignor. The assignment declared “ that if any surplus remained after paying the debts specified, it should be paid over to the assignor, his heirs and assigns.” By the terms of the instrument, the purpose was clear and express ; and there was no question of intent for the jury. In all such cases, notwithstanding the statute (sec. 4, ch. 77) making “the question of fraudulent intent a question of fact,” and not of law, the question becomes one of construction only, and this court would hold, as did the court of New York, that it must be passed upon as a question of law. But a majority of the members of this court take a still further view of this branch of the case. The conditional provision for the benefit of the Holdens, in the assignment, is claimed to vitiate the instrument under sec. 1, p. 163 of the Stat. of 1839, which is copied from the statutes of New York, and is as follows : “All deeds of gift, all conveyances, and all transfers or assignments, verbal or written, of any goods, chattels or things in action, made in trust, for the use of the person making the same, shall be void, as against the creditors, existing or subsequent, of such person.” If the general terms here employed are to be construed literally, they embrace solvent as well as insolvent persons; and no man would be safe, however large his means or limited his liabilities, in transferring any portion of his personal property, in trust for his own use. Every such transfer would be fraudulent and void by express statute, whatever might be the motive or the purpose to be accomplished. The plaintiffs below seemed to suppose this the proper construction of the statute, and furnished no evidence of the insolvency of the Holdens at the time of making their assignment, if such fact existed.

A majority of the court are of the opinion that the restriction must be confined to persons in fact insolvent, or in failing circumstances, unless in cases where actual fraud is shown. And it may be remarked that all the authorities adduced upon this point, present instances of assignment by failing debtors. The courts of New York have been sharp hunters of fraud ; but in no discovered instance have they ventured to declare all assignments of property fraudulent and void, simply because made in trust for the use of the person making the same. And, this court holds that unless some taint of fraud lurks in the transaction; in other words, unless it appears as a matter of fact, that the transfer is made to hinder and delay creditors, or that, in some other respect, it is at variance with entire honesty and fair dealing, it may stand under the statute. Whenever the fact of insolvency on the part of the debtor appears in evidence, an assignment by him, with reservation for his own use, must be held void by the court, as necessarily calculated to injure creditors, by giving to the debtor an unreasonable control 'over and use of his property.

4. It is'deemed unnecessary, in view of the other points decided, to express an opinion upon the general question raised by the plaintiffs in error, of the constitutionality of the statute relating to garnishee. Whether or not the garnishee himself may be entitled in all cases to a trial by jury, it is clear that the defendants in error, who were plaintiffs below, were secured that right in this case, by R. S., ch. 112, sec. 86. And if they had designed to raise a question of fraudulent intent, and not to rely on the fraud as a question of -law, they should have caused an issue to be made up, and taken a trial in the circuit court.

Such being the views of this court, the judgment of the circuit court, proceeding upon the ground of illegality of the assignment to James Kneeland & Co., is erroneous. There is nothing before us to shake the validity of that assignment. But the plaintiffs below, by their garnishee proceedings, have fixed in the hands of the assignees whatever surplus may remain after paying the specified debts. For this they are entitled to judgment in that court.

The judgment of the circuit court must be reversed with costs, and the case sent back for further proceedings.


author: Whiton, J.

text:
    Ela vs. Sprague.
    Evidence — Execution op Note. — A denial by a defendant on the trial of an action on a promissory note, purporting to have been executed by him, that he ever signed it as it reads above his name, is equivocal and not such a denial of the signature or execution of the note, as under R. S., ch. 98, sec. 85, will put the plaintiff to proof of its execution.
    (4 Chand., 52.)
    EEEOE to the Circuit Court for Rock County.
    The case is stated in the opinion of the court.

      Smith, Parker & TaUman, for plaintiff in error.

      Noggle & Prichard, for defendant in error.
   Whiton, J.

By the bill of exceptions in this cause, it appears that at the trial in the circuit court for Eock county, the plaintiff in error (who was plaintiff below) read in evidence to the jury, without objection, a promissory note for the sum of twenty-one dollars, purporting to be signed by the defendant, and payable to the plaintiff or bearer.

It further appears that at the previous trial before a justice of the peace, the defendant was sworn under the statute to make true answers to such questions as should be put to him touching the signature or execution of the instrument upon which the suit was brought, and that the following question was put to him by the attorneys, after he had been thus sworn: “Did you sign that instrument as it reads above your name? ” To which question the defendant responded, after he had examined the note, as follows : “ No, I never did.”

It further appears by the bill of exceptions, that after the note had been read in evidence at the trial in the circuit court, the defendant moved for a nonsuit, for the reason that the plaintiff had offered no.evidence to prove the signature or execution of the note, and that the judge sustained the motion. The plaintiff in error now insists that the judge erred in sustaining the motion for a nonsuit, for the following reasons : 1st. There was no sufficient oath administered to the defendant by the justice. 2d. If there was a sufficient oath administered to the defendant by the justice, the denial of the signature, or execution of the note by the defendant before the justice, could have no effect in the circuit court; and 3. That the signature or execution of the note was not denied within the time, intent and meaning of the statute, so as to compel the plaintiff to prove the execution. The statute referred to (E. S., ch. 98, sec. 85) is as follows: “ Every written instrument, purporting to have been signed or executed by any person, shall be proof that it was so signed or executed, until the person by whom it purports to have been signed or executed shall deny the signature or execution of the same by his oath or affidavit.”

Without noticing the first two points made by the plaintiff in error, we are satisfied that the third one is well taken. Before the party offering the written instrument can be compelled to prove the signature or execution of it, the party by whom it purports to be signed or executed shall, by his oath or affidavit, deny the signature or execution. Low v. Merrill, 1 Pin., 340.

In this case the denial of the defendant was equivocal, and would apply as well to an instrument altered in such a manner as not to affect its legal force or effect, or to an alteration made with his consent, as to a case where the signature was forged. Whether the statute would apply to a case where the instrument was fraudulently written over a genuine signature, we do not decide, but in this case, the denial of the signature of the note by the defendant was insufficient to put the plaintiff to proof of its execution, and the circuit judge erred in directing .a nonsuit for the want of such proof.

Judgment reversed.


author: KwaWLTOír, J.

text:
    Supervisors of Crawford County vs. Le Clerc.
    Courts — Interpreter.—The county courts have no power to employ interpreters of foreign languages, at the expense of the county, to interpret testimony in such courts; but the circuit courts of the state, being charged with the execution of the criminal law, may employ interpreters in criminal cases, and their action in employing or appointing such interpreters is conclusive on the county.
    (4 Chand., 56.)
    ERROR to the County Court of Crawford County.
    This was an action of assumpsit against The Board of Supervisors of Crawford County for services rendered by Le Clerc, the plaintiff, as an interpreter for parties litigant in that court and in the circuit court for that county, claiming in all the sum of $230. At the trial it appeared that Le Olere had been appointed interpreter by the circuit and county courts for that county, at various terms of the court, and his proofs consisted of various certificates of the clerks and judges, that he had attended as an interpreter. The court charged the jury that the circuit and county courts had authority to employ an interpreter, if they deemed it necessary, at the expense of the county ; that if they found that the plaintiff had served in the capacity of an interpreter, under the direction or appointment of such courts, he was entitled to a reasonable compensation therefor, from the county treasury, and that the jury were bound therefore to find for the plaintiff. These instructions were excepted to, and the jury found a verdict for the plaintiff for $116, upon which he had judgment, and the defendant sued out this writ of error.

      W B. Biddlecome, for plaintiff in error.

      3. Crawford, for defendant in error.
   KwaWLTOír, J.

This was an action of assumpsit brought by Le Clerc against The Board of Supervisors of Crawford County, for services rendered as interpreter in the circuit and county courts of that county, claiming $230 therefor. The defendant in error recovered $116, the amount found by the jury.

The principal question, and the only one necessary to be decided in this case, arises upon the first and second instructions asked by the plaintiff below (defendant here), and given by the court to the jury, to wit: “1st. That the circuit and county courts have authority to employ an interpreter, if they deem it necessary, at the expense of the county.

“ 2d. If the jury find that the plaintiff has served in the capacity of an interpreter under the direction of said courts, he is entitled to a reasonable compensation therefor from the county treasury; and that the jury were bound, therefore, to find for the plaintiff.”

The charge thus given is clearly erroneous. The judge seems not to have considered the distinction between the powers of courts of limited jurisdiction and courts of general jurisdiction. Courts of limited jurisdiction, like our county courts, being mere creatures of the statute, have no powers except such as are derived from the statute, and it must appear upon the face of their proceedings that they acted within the powers granted.. If this does not appear, all they do is co-ram non judice, and void. See Kemp v. Kennedy, 1 Peters, 30, 36; McCormick v. Sullivant, 10 Wheat., 192. The authorities are all clear upon this point. Our county courts are not vested with any criminal jurisdiction, except perhaps, on appeals from the courts of justices of the peace; and the law will presume that the only cases requiring an interpreter were civil cases, and then the parties litigant will pay for such service. If it be in a criminal case, it must so appear upon the face of the proceedings, or at least be proven that the services were rendered in such cases. There can be no doubt but that courts of both limited and general jurisdiction have the power to appoint an interpreter, if it becomes necessary to carry into effect the powers with which they are vested.

Whenever jurisdiction of the court vests as to the principal matter, the incidental points are included. Smart v. Wolf, 3 Term, 342. And certain implied powers must necessarily result to our courts of justice from the nature of their institution. United States v. Hudson & Goodwin, 7 Cranch, 82. These principles are well settled in the different states.

A court of general jurisdiction, like our circuit courts, having charge of the grand jury and unlimited criminal jurisdiction (the costs of which are chiefly to be paid by the respective counties), deeming it necessary to expedite business, thereby assuming the costs of the court to the county, may appoint an interpreter, or as many as it deems necessary, at the expense of the county, and this is a matter of discretion and is addressed to the mind of the court, and such appointment is conclusive upon the county. The county of Crawford was peculiarly situated in this respect, and from the first organization of the district court under our territorial form of government until we became a state, the district court found it necessary to have one or more interpreters, and government found no fault in paying them $5 per day. The heads of the departments took this view of it and justly paid the demand. The discretion of the court had been exercised and became conclusive.

Our circuit courts have the same power that the district courts had under the territorial government, to apppoint necessary agents to enforce the duties required of them by law, where the legislature had failed to provide those agents. And their decisions are equally conclusive against the counties, inasmuch as the constitution and statutes of our state have imposed these expenses upon the counties, and made no other provision for their payment. The treasury, out of which the grand jury and cost of criminal prosecutions are to be paid, is also the one out of which an interpreter is to be paid. But suppose it be contended that this is not a matter of mere discretion addressed to the mind of the court, and the act is not conclusive and can be reviewed. Then I reply, it is in the nature of a judgment or decree, and can only be reviewed in a court of error. For it is a principle too well settled to need any authorities cited to sustain it, that judgments of courts of general jurisdiction are never considered void until set aside by a superior court. No inferior court can inquire into the validity of such judgments; they are conclusive on the subject matter. In this case there was no appeal taken to a superior court, and the charge of the judge in this respect would have been correct so far as the services in the circuit court were concerned. That courts of general jurisdiction have the power is clear. Such courts of general jurisdiction cannot be ousted except by express words of an act of parliament or necessary implication. Shipman v. Herbert, 4 Term, 107; Carter v. Knight, 3 id., 442. This doctrine has always been held good in the supreme courts of the several states of this union. Burninghoven v. Martin, 3 Yeates, 479; S. P. Overseer, etc., v. Smith, 2 Serg. & R., 363; Murfrey v. Leeper, 1 Term, 1.

We are of opinion that the charge of the county court, to the jury, was erroneous, and that the case be remanded back to said county court, to be proceeded in according to law.

Judgment reversed.


author: Howe, J.

text:
    Story vs. Menzies.
    Payment.— A verbal agreement between the vendor and purchaser of real estate, that the latter shall pay the balance due the former therefor by paying the same to a creditor of tha vendor, and the money is paid accordingly, with the assent of the parties, it is a valid payment to the use of the vendor of the balance due on the contract.
    (4 Chand., 61.)
    APPEAL from the Circuit Court for Rock County.
    The case is stated in the opinion of the court.

      Smith, Parker & Tollman, for appellant.

      David Noggle, for appellee.
   Howe, J.

The appellant filed his bill of complaint in the circuit court for Rock county, praying for the specific performance of an agreement to convey certain lands, which agreement was made as stated by the bill, in consideration of the sum of fifty-two dollars paid upon the delivery of the agreement, and of a covenant to pay the further sum of fifty dollars in two years from its date, with annual interest at the rate of twelve per cent..

The bill avers the payment of the first year’s interest in due season, and states the following facts in reference to the payment of the balance, viz.: “ That on or about the 25th day of December, A. D. 1848,” (the agreement having been made January 1, 1847,) “ the said John Menzies being indebted to one James W. Page, in a sum of money exceeding fifty-six dollars, it was agreed between them, the said Menzies, Page and the said plaintiff, that the said Page should allow and credit to the said Menzies, on account of the money so due from said Menzies to said Page, the sum of fifty-six dollars, being the balance unpaid by said plaintiff and about to become due to the said 'John Menzies, according to the terms and conditions of said agreement in writing,; and said plaintiff thereupon made his promissory note for said sum, payable to the aforesaid James W. Page, and delivered the same to him, which note the said plaintiff has since paid to the said Page; whereupon the said Menzies acknowledged full satisfaction of the sum secured to be paid by said agreement,” etc. To this bill the defendant demurred, assigning for cause that the agreement between Story, Page and Menzies was void under the statute of frauds. The circuit court sustained the demurrer, and the plaintiff appealed to this court.

It is the judgment of a majority of this court that the decree of the court below was erroneous, and must be reversed.

I do not readily find terms by which to vindicate the sufficiency of the complainant’s bill, for I am not gifted in the use of those syllogisms by which a certain class of logicians were accustomed triumphantly to demonstrate that a horse was a quadruped. But if we admit that Page’s agreement to credit Menzies with fifty-six dollars was a promise to answer for the debt of another, was by parol, and was void as an executory agreement, yet we find that the three were parties to that agreement ; that in consequence of it Story paid to Page the fifty-six dollars, and so created a credit with Page in favor of Menzies.

It seems to me that the receipt of the money by Page, in pursuance of that agreement, was crediting Menzies as much as if he had entered it upon all his journals and indorsed it upon" all his promissory notes. Moreover, it is stated that in consequence of that payment to Page, Menzies acknowledged satisfaction of the debt due from Story. Now when Menzies had obtained his credit with Page, and had receipted the debt due from Story in consequence of it, and when Story had paid the money which was the consideration both for the credit and for the receipt,'it seems to me the triple agreement was executed. No single thing remained to be done in pursuance of that agreement. The most formal recitation of its terms would have been but the recitation of what had been already done.

When the bill was filed, that agreement no longer existed in promise, but was reduced to history. Page’s liability to Menzies no longer resulted from his promise to pay Storys debt, but it resulted from his having received Menzies’ money at his request from Story. Storys debt was extinguished, and Page’s was in the same position, as if at Menzies’ instance and request he had taken so much money from any other debtor of Menzies to transmit to him.

The decree of the circuit court is reversed, and the cause is remanded to Rock county.


author: WhitoN, J.

text:
    Williams vs. McDonal.
    1. CONSTRUCTION ov Statutb. —It is a well settled rule for construing statutes that particular words ought not to he .permitted to control the evident meaning of the context.
    2. Replevin —Jurisdiction.—In actions of replevin in justice’s court under the territorial statute, which required the officer to ascertain the value of the property by the oath of one or more credible disinterested witnesses whom the officer was to swear to truly assess the value thereof, and which also provided that if on the return of any writ of replevin it should appear that the value of the goods and chattels replevied had been assessed by. the jury to be of a greater value than the amount over which a justice has jurisdiction, then the justice should certify the case to the district court; the value which is to determine whether the justice has jurisdiction to try the case is that certified and returned by the officer, and not the value found by a jury on a trial before the justice.
    (4 Chand., 65.)
    ERROR to the Circuit Court for Walworth County.
    Action of replevin before a justice of the peace. The writ was executed and the persons called, by the officer executing it, to ascertain its value, certified the value of the property to be sixty dollars, exceeding the jurisdiction of the justice, and so the officer returned; whereupon the justice certified the case to the late district court.
    The counsel for defendant moved, in the district court, to dismiss the case for the reason that the justice bad no jurisdiction, the property being of the value of more than fifty dollars. The district court dismissed the case on the ground that it had been prematurely certified to the district court, holding that the value to be the test of the jurisdiction of the justice was the value as assessed and found at the trial before the justice, and not the value assessed upon the execution of the writ. The plaintiff sued out this writ of error.

      Smith, Parker & Jordan, for plaintiff in error.

      H. S. Winsor, for defendant in error.
   WhitoN, J.

By the record in this case it appears that the action was replevin, and was commenced before a justice of the peace for the possession of a horse. It also appears that the officer who served the writ caused the property to be appraised before he delivered it to the plaintiff, in conformity to the law then in force (Ter. Stat., p. 335, sec. 5), and that the yalue of the horse as thus ascertained was sixty dollars.

It further appears that the justice who issued the writ, upon its return to him by the officer, immediately certified the case to the late district court of the territory for the county of Wal-worth, pursuant to the statutes of the territory. Ter. Stat., p. 836, sec. 10. It further appears that the judge of the district court dismissed the case on motion of the defendant, for the reason that the justice should have retained the case till the value of the property should have been ascertained by a jury at the trial to exceed the sum of fifty dollars. To this decision of the judge the plaintiff in error excepted.

The case turns upon the construction to be given to the two sections of the statute above referred to. Section five provides that the value of the property “ shall be ascertained by the oath of one or more credible disinterested persons, whom the officer shall swear truly to assess the value thereof.” Section ten provides that if on the return of any writ of replevin, it shall appear that the value of the goods and chattels replevied shall have been assessed by the jury, to be of greater value than the amount over which a justice has jurisdiction, then the justice shall within ten days thereafter file the affidavit, bond and writ, and all other papers relating to the case, in the office of the clerk of the district court,” etc.

It is manifest that the construction to be given to the word “jury,” as used in the section, will determine the question. The judge gave it the ordinary signification, and held that it meant the jury impaneled to try the cause. But we think that the whole section taken together requires that a different signification should be given to it. The section provides that “if on the return of the writ it shall appear,” etc. The construction of the section given by the judge would require a trial and a finding by the jury tipon the merits, before the case could be transmitted to the higher court, although the legislature evidently intended that when the property exceeded in value the sum to which the jurisdiction of the justice extended, there should be no trial before him. We have therefore felt compelled to construe section ten to mean, that in all cases where the property shall have been assessed by the persons mentioned in section five to be of a greater value than the sum over which the justice has jurisdiction, it is the duty of tbe justice to send tbe cause to the district court. It is a well settled rule for construing statutes that particular words ought not to be permitted to control tbe evident meaning of the context. 1 Kent’s Com., 462; Holbrook v. Holbrook, 1 Pick., 248.

Judgment reversed.