author: Larrabee, J.

text:
    Lorrain v. Higgins, Administrator, etc.
    1. Attachment — aeeidavit.—In a proceeding by attachment under the late territorial statute, a party must, in his affidavit, swear to his belief of the existence of a statutory cause for the allowance of the writ, and set forth facts and circumstances sufficient to show that the alleged cause for issuing the writ exists.
    2. Same. — An affidavit alleged that the defendant was making secret preparations to leave for Ireland, without any ostensible business to take him there, but did not disclose the nature or character of such preparations, or show that he was making them with intent to abscond. Held, insufficient to warrant the allowance of the writ.
    3. Same — costs.—-Where an attachment is quashed for want of a sufficient affidavit, judgment may be rendered against the plaintiff for full costs.
    (2 Ohand. 116.)
    ERROR to the Circuit Court of La Fayette County.
    This was a proceeding by attachment, under the statute, founded on a promissory note. The affidavit made by the plaintiff," upon which the attachment issued, was as follows : Wisconsin Territory, )

      La Fayette County, j

      John Lorrain, of lawful age, being first duly sworn, deposes and says, that William Mead, of the county of La Payette aforesaid, is justly indebted to him (this deponent) in the sum of one hundred and thirty-one dollars and thirty cents, after allowing all just offsets and credits, upon a demand founded upon or sounding in contract, to wit, upon a promissory note, which said note is in the words and figures following, to wit:
      “ $131.80. One day after date I promise to pay to John Lor-rain, or bis order, one hundred and thirty-one dollars and thirty cents, for value receivedthis deponent says that he has good reason to believe and does believe that the said William Mead is about to depart from the territory of Wisconsin, with intent to abscond; and that the circumstances upon which the belief of such facts is founded are, that the said Mead is making secret preparations to leave this country for Ireland, a portion of the British dominions, without any ostensible business to take him there; and as a further circumstance, this deponent says that the said William Mead, some time in the month of July last past, on or about the eighth day thereof, took out a license, from the board of county commissioners of La Eayette county aforesaid, to keep a grocery and to sell strong and spirituous liquors and wines in his grocery house in the village of Shullsburg, in the county of La Fayette aforesaid, and that he has procured one John Higgins to take his said grocery and sell liquors and wines as aforesaid and under the aforesaid license; and this deponent further says, that he has understood from various individuals that the said Mead has been making arrangements to leave for the aforesaid place; and this deponent further says, that he verily believes that unless a writ of attachment is issued, he is in danger of losing his said demand ; and further this deponent says UOt. JOHN LORRAIN.
    After the attachment was executed by the sheriff and the appraisal made, and the proceedings returned into court, the defendant made a motion to quash the attachment, and assigned the following causes for that purpose, to wit:
    1. That there is no sufficient affidavit to authorize the issuing thereof.
    2. That there are no facts set up in the affidavit, on which the attachment issued, on which an issue can be taken.
    3. That the facts set up in the affidavit are not sufficient to warrant the belief that William Mead was about to abscond, or to justify tbe order for tbe issuing tbe attachment. Tbe defendant, Mead, died, and tbe suit was revived and continued against Higgins as bis administrator.
    Tbe court granted the motion and quashed tbe attachment.
    Tbe counsel for tbe plaintiff in error excepted to tbe ruling, and tbe cause came here upon a writ of error.

      J. H. Enowlton, for plaintiff in error.

      Robinson & Culver, for'defendant in error.
   Larrabee, J.

This is one of a numerous class of cases under tbe attachment law of tbe late territory, but now repealed by tbe revised statutes of tbe state.

Tbe first question is upon tbe sufficiency of the affidavit upon which tbe writ of attachment issued. It states that tbe defendant “ is making secret preparations to leave this country for Ireland,” and that be has procured a third person to manage bis grocery business. Tbe statute required tbe plaintiff’ to swear to bis own belief of tbe intent to abscond, and to set forth tbe facts and circumstances upon which that belief is founded. Now, tbe mere statement that tbe defendant was, in tbe opinion of tbe plaintiff, making secret preparations to leave for Ireland is not such a fact as would authorize tbe court to conclude that be was m reality making preparations to abscond. It is apparent that no fact has been stated; for we ask, at once, what were those preparations ? What has tbe defendant done to warrant tbe conclusion that be intends to abscond ?

Tbe plaintiff might have been entirely in error as to tbe character of these preparations, and still tbe court could not conclude that such preparations bad in fact been made. Preparations might have been made for a different object, tbe farthest removed from an intent to abscond; in fact, with an intent to fix bis residence more permanently in tbe state; and tbe plaintiff, clamorous for bis debt, and open to view with jealous eye every movement of bis debtor, might be ready to swear at once that these preparations were evidence, to bis mind, of an intent to abscond. The plaintiff should have stated what the facts were, constituting what he calls “prepar rations,” that the corat might know whether there was sufficient legal evidence upon which his belief was founded.

Another point presented, and the only one remaining that is necessary to decide, is, whether, upon the dismissal of the suit for the insufficiency of the affidavit, the court could render judgment against the plaintiff for costs. As a general rule, it is well settled that where there is no jurisdiction the court can give only the costs of the motion, and not the general costs of the suit. But it was the uniform practice of the late territorial district courts to give costs in similar proceedings, and we are not disposed, at this late day, to overrule this doctrine, and especially as we are not, in view of the repeal of this law, called upon to lay down a rule for the future. The affidavit in this case was colorable, at least, and sufficient to give the court jurisdiction to render judgment for full costs.

Judgment affirmed.


source: Caselaw Access Project

author: Hubbell, J.

license: Public Domain

text:
    Carson v. Allen.
    1. Gabnishee — negotiable note. — Where C. had given, a negotiable promissory note to his creditor W., who was afterwards proceeded against by attachment by A., who summoned 0. before the maturity of the note, as garnishee of W. ; upon an answer disclosing that such note had been given, and it not appearing that W. still held it: Held, that C. could not be held liable as garnishee of W.
    (2 Ghand. 123.)
    ERROR to the District Court for Crawford County.
    This suit grew out of an attachment sued out by the defendant in error, against one George C. Wales, who was alleged to have departed the territory. The plaintiff in error, who was a partner in business with one Eaton, was summoned as garnishee, and judgment by default was obtained against the defendant Wales. After the plaintiff in error had been summoned, he made a motion to dismiss the proceedings agaiust him and his partner, for several reasons, which was ovei’ruled, after which, the plaintiff in error, on interrogatories being put to him, disclosed that he and his partner Eaton, in the fall of 1845, and before being summoned as garnishee, had executed to Wales, in the name of their firm, a negotiable promissory note for about $1,100.00, to fall due in August or September, 1846, and which had not become due at the time he was summoned as garnishee; that at the giving the'note, Wales desired it should be made negotiable, because he designed to turn it out to his creditors; that he had not been notified of its transfer’, and that it had not been paid. After this, a scire facias was issued against the plaintiff in error and his partner Eaton, as partners, winch was personally served upon Eaton, and upon Oarson, by copy left with Eaton, his partner, without saying that it was left “ at his last and usual place of abode.”
    At the return term the said Oarson and Eaton moved to quash the scire facias for the reasons, that the said scire facias did not recite the record and proceedings ppon which the same purported to be founded, and was in other respects insufficient and informal, and was not such as was contemplated by law, and the rules of the court, and for other imperfections and insufficiencies on the face of the papers.
    This motion was overruled.
    The plaintiff in error then craved oyer of the whole proceedings, and showed cause in the nature of a demurrer thereto. The court overruled the demurrer, and the plaintiff in error refusing further to plead, judgment was rendered against him for the amount of the judgment against Wales, and also for costs. To reverse the proceedings thus had in the cause, this writ of error was brought.

      J3. O. Eastman, for plaintiff in error :

      That the giving the negotiable note by the plaintiff in error for himself and partner, extinguished the debt due from them to Wales. Tudor v. Whiting, 12 Mass. 212; Strong v. Hart, 6B. & C. 160 (13 E. C. L. E. 131); Sheehy v. Mandeville et al., 6 Cranch, 264; Ohapmcin v. Durant et cil., 10 Mass. 47, and notes ; Chitty on Bills, 195 ; Jones v. Savage, 6 Wend. 658. That he was not liable as garnishee, as it did not appear- that Wales at the date of the service of garnishee process, or at any time thereafter was in possession of the note, and as the note was negotiable, and was given and received with the declared intention of being negotiated, the presumption was that it had been negotiated, and had passed from Wales. Meacham v. McQorbett, 2 Met. 352 ; Willard v. Sheafe, 4 Mass. 235 ; Dwight v. Bank of Michigan, 10 Met. 58 ; Outts v. Perkins, 11 Mass. 206. That an indebtedness upon a negotiable, promissory note, payable in futuro, and not shown to be in the hands of the defendant, in attachment, is not “property, moneys and credits” in the garnishee’s hands, 11 or due from him to the defendant,” within the meaning of the statute. Stat. of Wis. 166, ^ 5 ; 1 Iowa, 48. That no action could be brought and maintained upon this note by Wales, the payee, without proving its loss, and that it has not been transferred, and giving indemnity; and his creditors could not do indirectly that which Wales could not do directly. Chitty on Bills, 291, et seg. That the judgment would be no bar to a suit which might be brought against the plaintiff in error and his partner, by an indorsee, as the note is a joint one from Octrson and Baton.

      J. H. Knowlton, for defendant hi error.
   Hubbell, J.

The plaintiff in error was summoned as a garnishee, and appeared and answered that he and his partner, Baton, had given a negotiable promissory note to Wales, the defendant in the attachment suit, which was not then due; that the note had been made negotiable to enable Wales to turn it out to Ms creditors, and that no demand of payment had been made of the'makers.

No evidence was given showing that the note, at the time of serving the garnishee process, was owned by Wales, or was in his possession.

To render the garnishee liable, it must appear that he had in his possession “ property, credits or effects ” belonging to Wales, the defeudaut in the attachment suit, or was “indebted ” to him. There was no evidence of property, credits or indebtedness other than the'note made by Carson <& Eaton ; and waiving the question whether that note could form the subject of attachment in a suit against Canon alone, it is clear that it was evidence of indebtedness only to the indorsee or bearer, whoever he might be. The note being negotiable, was liable to be transferred from hand to hand, until due, and each subsequent holder would gain a perfect right of action against the makers.

Holding the makers liable under the garnishee process, before the maturity of the note, would subject them to pay it twice over, or would defeat the action of the real owner. We must not so construe the statute relating to attachments as to defeat the long-established rules of the law merchant. That law, wMch gives currency and character to negotiable paper, has been incorporated hato the statutes of Wisconsin, and is deemed of salutary effect in the general business of the community.

Because, therefore, the answer of the plaintiff in error did not disclose any indebtedness to the defendant, Wales, nor disclose airy properly, credits or effects belonging to him, in the possession of the garnishee, the judgment of the circuit court was erroneous. Whether a negotiable promissory note, past due, may not be the subject of attachment as credit or indebtedness ha the hands of the maker, it is not necessary now to decide. Nor is it necessary to pass upon sevea’al other points in the case presented by the plaintiff ha error’..

Judgment reversed with costs.


author: Lakrabee, J.

text:
    Simpson v. Oldham.
    1. Attachment — execution oe weit. — Where, under the provisions of the Revised Statutes, ch. 112, 1, 2, an attachment was issued upon a proper affidavit, hut which was not annexed to the writ before it was executed. Held, that the writ was regular, and that it was error to quash it, and dismiss the suit with costs; hut the service or execution of the writ should have heen set aside, and the party permitted to procure the proper affidavit to he annexed, and the writ to he regularly executed.
    (2 Chand. 129.)
    ERROR to the County Court for Grant County.
    This suit was commenced in the county court of Grant comity on a promissory note held by the plaintiff against .the defendant below, by attachment under the statute. A proper affidavit, and in accordance with the statute, was made and filed, and thereupon a writ of attachment was issued, which was served, property attached, and a return made. On the return day of the writ the plaintiff filed a declaration. On the day following the defendant filed a motion to quash the writ for the reason that an affidavit was not attached to the writ when served, as required by the statute, and upon the inspection of the papers, the- county court sustained the motion, and quashed the writ.
    On the fourth day of the term the plaintiff moved the court for a default against the defendant for the want of a plea, and asked that the plaintiff's damages might be assessed. The court overruled the motion, and decided that the suit was already quashed, and that the plaintiff was not in court, and could take no further proceeding in the cause. The defendant then made a motion for judgment for costs as against the plaintiff, which was granted. The plaintiff then made a motion for a rule that the defendant plead in the cause. The court overruled the motion, and the plaintiff excepted. Upon this state of the case a writ of error was sued out, returnable in this court.

      J. II Knowlton, for plaintiff in error,
    insisted that service of the attachment without the affidavit of the party, at whose suit the same was sued out, being .annexed thereto, was not necessarily bad; that the return of the officer who had served the process, implies that he had served it in the manner required by law; that it was a settled principle of law that the return of the officer could not be impeached. The court must be governed by the return, and if the officer has returned falsely, the remedy for the party aggrieved is against him; that the inspection of the writ at a time when the affidavit was not annexed could not furnish such evidence that it was not attached at the time of the service, as that the court could act upon his own ocular inspection, in the settlement of this important fact.

      Kastman <& Mills, for defendant in error,
    insisted that the attachment was a nullity and had no legal operative effect, unless at the service of it the affidavit prescribed by the statute was annexed; that both were necessary to constitute an operative process and that the absense of either one nullified the proceedure ; that it was the duty of the plaintiff to cause the affidavit to be annexed, and not the duty of the officer who made the service; that if both papers were necessary to make up such a process as the law required, clearly the writ could not be executed, in a legal sense, without being accompanied by the affidavit.
   Lakrabee, J.

It appears that the writ of attachment, in this cause, was properly issued ; but the affidavit upon which it was issued was not annexed 'to-it prior to its .being executed. For this reason the writ was quashed, and judgment rendered against the plaintiff for costs.

We think this a valid objection to the service of the writ, but not a sufficient ground upon which the judgment of the court can be sustained. The service should have been set aside, and the party left to procure a proper one; but he should not have been dismissed from court. Every step required by the statute was taken by him, except the mere annexing the affidavit to the writ, and this could have been done at any time before it was executed.

With this view, it is not necessary to notice the other errors assigned.

Judgment reversed.


author: ITubbell, J.

text:
    Rogan v. Walker et al.
    1. Deed — equitable mortgage — eoreeiture.—R., who was a settler upon certain pulblic lands, applied to W. to loan him the money to purchase the same. W. agreed to and did purchase the lands for him, taking the title in his own name. R. executed to W. a "bond for double the minimum price of said lands, payable at a future day with interest at three and a-half per cent, per annum, and conditioned for the payment of all taxes, etc., and W., at the same time, executed to R. a deed of conveyance of the lands purporting to be in consideration of the said bond and $1, containing the usual covenants, followed by a condition in substance, that if R. should fail to comply with the conditions of the bond, or any of them, then the said conveyance and the estate created thereby should cease, determine and be of no effect, and that W. might re-enter and take possession and sell and convey the premises to any person or persons and retain the moneys paid thereon without recourse either to law or equity. R. failed to make payment as required by the bond, and his grantee brought suit to redeem the premises upon paying the sum due. Held, that by the deed the entire estate passed to R., subject to the lien of W. for the amount due on the bond, and that after breach of the condition contained in it, he or his grantee had an equity of redemption, which would be upheld and enforced upon payment of the amount due on the bond. The nature and effect of the transaction is more fully considered at a subsequent stage of the same case. 1 Wis. 527.
    (2 ahand. X33.)
    APPEAL from the Circuit Court of Iowa County.
    The substance of tire bill is as follows :
    That James Rogan, went into possession, some time in the year 1836 or 1837, of two tracts of wild land about half a mile apart, then belonging to the United States, which tracts are severally described as the northeast fractional quarter of section number five in township number eight of' range fifteen east, in the county of Jefferson, and the northeast quarter of section number thirty-two of township number nine of range fifteen, in the county of Dodge, and that he remained in peaceful possession thereof as a settler until the time of the land sale ; that at or soon before the land sales at Milwaukee, in November, in the year 1838, Martin 0. Wallcer appeared in the town of Milwaukee and gave out, and caused to be given out, among the settlers on the public lands, then about to be sold, that he had large sums of money, jointly belonging to himself and Ellis Baker, which he, Walker, proposed to advance and lend on behalf of himself and said Baker to purchasers of said lands on the security of said lands on the following terms and conditions : he, the said Walker, would purchase in his own name from the United States at the said land sale, at the minimum price of one dollar and a quarter per acre, the tract or tracts of land which the borrower of money from him, the said Martin 0. Walker, desired to purchase, and take as a security for the loan the bond of such borrower to himself and the said Ellis Baker, in a penalty conditioned for the payment to the obligees therein, their executors, administrators or assigns, of double the said minimum price so to be paid to the United States, payable at a future day to be agreed upon, with interest thereon at the rate of one-half per centum per annum, and would thereupon convey such tract or tracts of land to such borrower by deed of conveyance, with covenants of war-rantee against the acts of him, the said Martin 0. Walker, only, with a condition or proviso annexed and forming a part of the deed, that if the grantee named in such deed should fail to comply with the conditions of such bond, then that such conveyance and the estate thereby created should cease, determine and be of no effect, and the said Martin 0. Walker, or his legal representatives should have the right to enter and take possession of the premises thereby conveyed, and to sell and convey the same to any other person or persons, and keep and retain all moneys paid thereon, without recourse in law or equity; that Walker, when he came to Milwaukee as aforesaid, brought with him printed forms, printed long previously to the land sale, for the use of Walker and Baker, and having their names printed therein, being bonds and deeds as before described, for the purpose of being used by Walker in any transactions which he might be able to effect with persons proposing to purchase lands at the land sale; that James Bogan went to said land sale to purchase the two tracts before mentioned, and that he, finding hiruself short of the necessary funds to purchase them, and learning the proposals of Walker before mentioned, applied to Walker for a loan of money sufficient to enable him, the said Bogan, to purchase the said two tracts ; that Walker consented to loan it, upon the terms of his proposals, and to give Bogan credit thereon for the terms of four years, to all which said Bogan consented, and an agreement was accordingly made between them, on the terms of the proposals and givings out of Walker, before the sale of the two tracts or either of them; that in pursuance of the agreement between Walker and Bogan, the said Bogan did, on the 18th day of February, A. D. 1839, execute to' Walker the bond of said Bogan, bearing date on that day, in the penalty of $1,659.14, to be paid to said Walker and Bilis Baker, their executors or assigns, and conditioned for the payment by Bogan to Walker and Baker of the sum of $829.58, on the 18th day of February, A. D. 1843, and annually, on the 18th day of February, the sum of $29.04 as interest, and for the payment of all taxes, etc., that might be imposed upon the premises that day conveyed by said Walker to said Bogan, and in all things to save him and them harmless; and that thereupon, and in pursuance of the agreement between Walker and Bogan, Walker did,on the said 18th day of February , make and execute, in due ' form of law, his deed of conveyance, bearing date on that day, purporting that the said Walker, in consideration of the condition of a certain bond therein named and of one dollar in hand paid by the said James Hogan, did thereby grant, bargain, sell and confirm unto the said James Hogan and to his heirs and assigns, by apt and proper description, the said two tracts of •land, hereinbefore described as containing and which did contain three hundred and thirty-one acres and eighty-three hundredths of an acre, together with the appurtenances, to have and to hold the said premises, with the appurtenances, unto the said James Hogan and to his heirs and assigns forever; and that the said Walker, for himself, his heirs, executors and administrators, did covenant to and with the said James Hogan and Ms heirs and assigns, the thereby bargained premises in the ■quiet and peaceable possession of the said James Hogan, his heirs or assigns, against all and every person or persons lawfully claiming or to claim the whole or any part thereof, by, through or under the said Walker, he would warrant and defend; conditioned and provided always, anything herein contained to" the contrary notwithstanding, that if the said James Hogan should fail to comply with the conditions or any part thereof of a certain -bond, bearing even date therewith and therein-after contained and described, then that conveyance and the estate thereby created should cease, determine and be of no effect, and the said Martin 0. Walker or his legal representatives should have the right to re-enter and take possession of the said premises, and sell and convey the same to any person or persons, and keep and retain all moneys paid thereon, without recourse either at law or equity, and purporting therein to contain and recite a copy of the said bond or obligation of the said James Hogan to the said Marlin 0. Walker and Mlis Baker, above mentioned and set forth.
    The bill further charges, that on the 23d day of February, in the year last above mentioned, the said Walker, in pursuance of the agreement between him and Hogan abovemen-tionecl, purchased of the United States the two tracts of land hereinbefore mentioned; that Walker purchased the said tracts for the said James Hogan, and that the payment of the money by Walker to the United States for the said lands was made by him on account of Hogan, and was the trae and only consideration of the bond of Hogan to Walker and Haker, and that on the 27th day of February, in the year last mentioned, Walker duly acknowledged and delivered to Hogan his said deed of conveyance; and the bill charges that thereby the said James Hogan became seized in fee simple of the two several tracts of land in his own right, subject to the right of Walker and Baker, as incumbrancers thereon, for all sums due or to become due, on said bond of Hogan to them; that the whole of the transaction, of the executing and delivering of the bond to Hogan, and the conveyance of Walker and the purchase of the two tracts of land by Walker, were all part and parcel of the agreement between Walker and Hogan, previously had between them, and that the true intent and object of that agreement and those transactions was the loan of money from Walker and Baker to Bogan, and the securing thereof; and that Bogan’s bond, and the condition or proviso of Walker’s deed, were intended, by the parties thereto, to secure the payment of the loan and interest; and that Walker purchased the land for the sole piupose of securing the repayment of the loan made by him to Hogan, and without any intention of acquiring and holding the same or any part thereof for himself or for himself and Baker ; and that the condition or proviso in Walker’s deed operates in law as a mortgage on the premises conveyed, and that it was inserted in and made a part of Walker's deed for the sole purpose of defeating the rights of redemption of the two tracts of land by Hogan, in case he should fail to pay the sums mentioned in his bond, when the same should become respectively payable ; that James Hogan re* mained iu the quiet possession of the two tracts of land, from the time that he went into possession thereof until and at the time of Ms said transactions with Rogan and WalJcer, and has ever since continually remained in such possession of the north east quarter of section number 32, town 9, range 13, and ever remained continually in such possession of the northeast fractional quarter of section number 5, town 8, range 15, until the conveyance thereof unto the complainant in this suit, when the complainant went into the possession, and has ever since remained in possession; that from the time that James Rogan went into possession thereof until the present time, the possession of the two tracts by James Rogan and by the complainant has been continued, uninterrupted and adverse to all the world ; that Walker and Baker, nor either of thém, have ever had posseession of the said tracts or any part thereof; that at the time of the transactions between Walker and James Rogan, the two tracts of land were almost wholly unimproved, and of equal value; and that the tract still owned and held by James Rogan is an abundant security for one-half of the principal and interest mentioned in the bond, and now remaining unpaid ; that James Rogan has not paid any part of the principal, but has paid some part of the interest on his said bond; that on the 20th day of January, 1842, James Rogan and his wife conveyed the northeast fractional quarter of section number 5, town 9, range 15, to John Mas-terton, by warranty deed, and that on the 30th day of July, 1844, Masterton and Ms wife conveyed the said tract by warranty deed to the complainant; and that the deeds herein before mentioned, were all recorded in the counties wherein the said tracts of land were situated, soon after the dates thereof; that sometime in the fall of the year 1847, Walker instituted an action of ejectment against the complainant, for the recovery of the possession of the tract last described, in the district court of the county of Jefferson, which has been removed to this court, and is now pending therein, in which action Walker claims title to the said tract of land by reason gf t]ie failqre to pay the sum secured by his bond at the mar turity thereof, and by no other claim of title; that by the said several conveyances, he is seized and possessed in fee simple absolute of the tract last described, subject only to the right of Walker and Baker, as mortgagees thereof, to secure the payment of all sums due them on foot of James Bogan’s bond, equitably chargeable against the last described tract.
    This bill prays that an account may be taken of the amount due on the bond of Bogan, and that he be decreed to pay the same, and in default of his paying it, that the complainant may be allowed to pay it or such part of it as to the court may seem sufficient to entitle complainant to redeem his tract, and that when complainant or James Bogan shall have paid such sum as may be decreed to Walker and Baker, that they may be decreed to satisfy and release the proviso or condition in the conveyance of Walker, and that the same may be decreed forever satisfied and discharged, and that Walker and Baker may be decreed to execute such other and further assurance and acquittance as to the court shall seem just.
    To the complainant’s bill the defendant Walker demurred generally, and it was overruled, and from the order overruling it he appealed.

      A. Hyatt Smith, for the appellant,
    argued that this was a bill filed to redeem, charging that a conditional deed is a mortgage. The first question is, what is the instrument set forth in the bill of complaint, is it a mortgage, or a conditional deed ? Estates upon condition are divided into estates upon condition implied in law, and estates upon condition expressed in deed. 4 Kent, 120. Conditions in deed are expressly mentioned in the contract between the parties, and the object of them is either to avoid or defeat an estate ; as if a man (to use the case put by Littleton), enfeoffs another in fee, reserving to himself and his heirs a yearly rent, with an express condition annexed, that if the rent be unpaid, the feoffor and his heirs may enter and hold the lands free of tifie feoffment. So, if a grant be to A. in fee, with a proviso that if he did not pay twenty pounds by such a day, the estate should be void. It is usual in the grant to reserve in express terms, to the grantor and his heirs, a right of entry for the breach of the condition, but the grantor may enter and take advantage of the breach by ejectment though there be no clause of entry. 4 Kent, 122 ; Co. Lit. 4 ; Lit. § 325.
    If A. enieoffs B.’ of certain land to have and to hold to the said B. and his hens, upon condition that the said B. and his heirs do pay or cause to be paid to the aforesaid A. and his heirs yearly, such a rent, etc., in this case, without any more saying, the feoffor hath an estate upon condition. Coke says : “ Here in this and the next two sections Littleton doth put few examples of words that make conditions in deed, and first the above condition. This is the most express and proper condition in deed. Co. Lit. 203 ; Lit. § 320 ; 2 Bacon Tit. Con. 200.
    If A. grant land to B. to have and to hold to him and his heirs, provided that, or so as, or under this condition, that B. do pay to A. ¿£10 at Easter next; this is a good condition, and the estate is conditional without any more words. Shep. Touch. 235 ; Marg. 121; 3 Cow. 220. And this (a condition) is sometimes contained in a testament or will, and sometimes in a deed. And where it is in a deed it hath no proper place assigned, but it may be in any part of the deed ; howbeit for the most part it is placed next after the haben-dum, if any. Shep. Touch. 228 ; Marg. 117. And so, also, if the time of doing the thing be past as if any one make a feoffment to me on condition that if he pay me ¿£10 such a day the feoffment shall be void, and if he doth not pay me at the day, but both die, and after by agreement between his heirs and me, he doth pay me the ¿£10, and I receive and accept it, and thereupon I suffer him to enter and hold the land ; in this case the condition is not performed, but I may enter upon and oust him notwithstanding. Therefore, in cases of this sort, either a new conveyance, a release or a confirmation should, be taken, according to the circumstances. Shep. Touch. 269, marg. 143. The first position, the conditional character of the deed being established, the question arises, are facts enough charged in the bill to change this character and turn it into a mortgage. It will be borne in mind that the bill contains no allegation of title to the lands described in the complainant or his grantor, but naked occupancy of two quarter sections of land belonging to the United States, which gave to the grantor of complainant no right, he being a mere trespasser on the public domain, and further, that the bill does not show such improvement as would entitle him to prove a pre-emption right to either of said quarter sections. See pre-emption act, approved May 29, 1830, and the act approved June 22, 1838.
    Could the grantor of the complainant, then, by any agreement, create a mortgage on said lands ?
    This question can only be answered by an inquiry into the necessary ingredients which enter into and constitute a mortgage. A mortgage is the conveyance of an estate by way of pledge for the security of debt and to become void on payment of it. The legal ownership is vested in the creditor, but in equity the mortgagor remains the actual owner until he is debarred by his own default or by judicial decree. Kent, 134. Now it is called here a mortgage or mortuum vadium, both for the reasons here expressed by Littleton, as also to distinguish from that which is called vivum vadium. As if a man borrow a ¿£100 of another and maketh an estate of lands unto him, until he hath received the said sum of the issues and the profits of the land, so as in this case neither money nor land clieth. A pawn of land or tenement or any thing immovable, laid or bound for money borrowed, to be the creditors for ever if the money be not paid at the day agreed on. Tomlins’ Dio. Tit. Mortgage and authorities there cited. As soon as the agreement for an absolute sale is executed and the consideration paid, the vendor is in equity a stranger to tbe estate, and any subsequent transactions between him and tbe purchaser cannot, it would seem, bave tbe effect of divesting tbe ownership from tbe purchaser and remvesting it in tbe original vendor. There is no greater privity of estate subsisting between them than between two indifferent persons, and no act has been done to shift tbe ownership back again. Then if tbe purchaser contract on tbe repayment of tbe purchase-money, with interest, to reconvey tbe estate, this can be of no more avail in equity, than if A. should contract to sell tbe estate to B. on payment of a sum of money with interest; if tbe purchase-money is not paid, A. may rescind bis contract. Coote on Mort. 38; /Sabine v. Barrel, 1 Yin. 268 ; C/otrell v. Purchase., Talbot, 60 ; Bndsworth v. Griffith, 15 Yin. Ab. 468. If not a mortgage as between grantor and grantee as above, clearly not as between James Rogan or bis grantee and defendant, because prior to tbe execution of tbe deed, Rogan was a stranger to tbe estate, tbe title being in tbe government, and defendant a purchaser of tbe government title. In tbe language of tbe above cases there was no privity of estate. If it shall be contended that tbe facts set up in tbe bill show that Walker bought tbe land in question in trust for James Rogan, and that Rogan could mortgage bis equitable title, tbe obvious answer is, that tbe trust was fully executed when Walker conveyed tbe land to Rogan in pursuance of, and according to tbe terms of tbe agreement between them, and that all tbe. agreements which created tbe trust were merged in tbe conditional deed.

      Finch <& Lynde, for tbe appellees.
    1. Every person having any interest in tbe mortgaged land, by grant or operation of law, can bring a bill to redeem. 2 Story’s Eq. 290, 291; Story’s Eq. PI. 170, 171; Bay v. Dunham, 2 John Cb. 181. And tbe bill of complainant has all tbe proper parties. Story’s Eq. PL 170, 171; 2 Greenlf. Cruise, 27, § 6 ; 2 ib. 139, note 1; 2 Story’s Eq. 1023; 4 Kent’s Com. 162-164. 2. The bill avers offer to pay ; this is sufficient, tender is unnecessary. 3 Hoff. Ch. Prac. 266 ; Hovosielski v. Wakefield, 17 Ves. 417 ; Perrine v. Dunn, 4 John Ch. 140. 3. A deed made for lands, to be absolute on the payment of certain notes, but in default of payment to be void, is to be considered as a mortgage. 2 Greenlf. Cruise, 79 ; Carr v. Holbrook, 1 Miss. 240. 4. The reverse of the lust proposition is also true ; a conveyance given as a mortgage, but to become a deed after a failure without equity of redemption, will be always held subject to the equity of redemption. And the reasons of both propositions are the same. Johnson v. Gray, 16 Serg. & R. 361; Stover v. Stover, 9 id. 434. 5. An absolute deed of lands accompanied by a stipulation, either in or out of the deed, that the estate shall be reconveyed on payment of money, is a mortgage. Frs-kine v. Townsend, 2 Mass. 493 ; Taylor v. Weld, 5 id. 109 ; Gray v. Ransom, 8 id. 159; Harman v. Phillips, 12 id. 456 ; Scott v. McFarland, 13 id. 309 ; Faton v. Whiting, 3 Pick. 181; Hughes v. Fmmons, 9 Wheat. 489; 5 Cond. 648. And this even when there is no written defeasance. Lane v. Shear/, 1 Wend. 433 ; Watson v. County, 14 ib. 63 ; Smith v. Sackett, 5 Gill. 534. If the transaction be a security, whatever be the form, equity will hold it a mortgage. Flagg v. Mann, 2 Sum. 487 ; Parks v. Hale, 2 Pick. 211.
    And so even if unaccompanied by any personal collateral engagement for the money. Rice v. Rice, 4 Pick. 349. If it is doubtful whether the parties intended a conditional sale or a mortgage, courts of equity will regard it as a mortgage, such construction being the more just and equitable, tending to prevent oppression. Poindexter v. McOannon, Dev. Eq. 575 ; Manner v. Miller, 5 Lit. 84 ; 2 J. J. Marsh, 471; Fdgerton v. Harper, 3 id. 354 ; Crane v. Bonnell, 1 Green CL 354. And in order to ascertain the intention of the parties, courts will look not only to the deeds and writings, but to all the circumstances of the contract, and for this purpose will receive parol evidence. Robertson v. Campbell, 2 Call, 421; Kingv. JSTew-man, 2 Munf. 40 ; Thompson v. Davenpoí’t, 1 Wash. 125. Once a mortgage, always a mortgage. 1 Powell on Mort. 127«, 116, 117, note 7. No agreement between the parties can take away the right of redemption in equity. Powell on Mort. 116, 117, note; 2 Story’s Eq. 287; 4 Kent. 142-144.
   ITubbell, J.

The circuit court for Iowa county overruled a general demurrer, filed by the defendant, WaUcer, to the complainant’s bill. From this decision WalJcer appealed. The allegations in the bill are admitted. It sets forth that at, or soon before the land sale in Milwaukee, in 1838, Martin 0. WalJcer appeared in the town of Milwaukee, and gave out, and caused to be given out, among the settlers on the public lands, that he had large sums of money, belonging to himself and Ellis Balcer, which he, Walker, proposed to advance and lend, on behalf of himself and Balcer, to purchasers of said lands on the security of the lands, on the following terms and conditions : He, the said W, would purchase at the land sale, in his own name, at the minimum price of one dollar and a quarter per acre, the tract or tracts of land which the borrower of the money from him desired to purchase, and take as security for the loan, the bond of such borrower, to himself and Balcer, in a penalty, conditioned for the payment of double the said minimum price, payable at a future day to be agreed upon, with interest thereon at three and one-half per cent, per annum ; and would, thereupon, convey such tracts of land to the borrower, by warranty deed, with a condition or proviso annexed, and forming part of the deed, that if the grantee should fail to comply with the condition of such bond, then such conveyance and the estate thereby created should cease, determine, and be of no effect; and the said Walker, or his legal representatives, should have the right to enter and take possession of the premises and sell the same, and keep and retain the moneys paid therefor, without recourse in law or equity.

The hill further states, that in 1836-37, James Hogan went into possession of two parcels of land described as N. E. fractional quarter of section No. 5, in township No. 8, of range 15 east, in the county of Jeiferson, and the N. E. quarter of section No. 32, of township No. 9, in range No. 15, in the county of Dodge, in Wisconsin, being wild lands of the United States, and remained in peaceable possession thereof until the land sale ; that he went to the land sale to purchase said tracts, but finding himself short of the necessary funds, and hearing of the proposals of Walleer, he applied to Walleer for a loan of* money for that purpose, and Walleer agreed to make the loan om the terms before set forth; that, in piusuance of this agreement, Hogan did, on the 18th of February, 1839, execute and deliver to said Walleer his bond bearing date on that day, in the penalty of $1,659.14, to be paid to said Walleer and Mlis Baleer, their executors or assigns, and conditioned for the payment to them of the sum of $829.58 on the 18th of February, 1843, and annually the sum of $29.04 as interest, and for the payment of all taxes, etc.

The bill further states, that in pursuance of said agreement, Walleer, on the 23d of February, 1839, purchased of the United States the aforesaid tracts for the said Hogan, and that the payment of the purchase money to the United States was made by the said Walleer, on account of said Hogan, and was the true and only consideration for the bond of said Hogan to Walleer and Baleer, and that on the 27th of February, 1839, Walleer delivered to Bogan a deed of the said lands, of the tenor and purport aforesaid, and duly acknowledged.

And the bill charges that James Hogan thereby became seized in fee simple absolute of the said tracts, subject to the right of Walleer and Baleer, as incumbrancers thei’eon, to the payment of all sums due or to become due on said bond. It further states that James Bogan had paid a. part of the interest, but none of the principal of said bond, and that be continued in possession of the N. E. fractional quarter of section 5, town 8, range 15, until the 20th of January, 1842, when he and his wife conveyed all their title and interest therein to one John Masterson by warranty deed, and that on the 30th of July, 1844, said Masterson and wife, by a like deed, conveyed the same to the complainant. And the bill prays that an account may be taken of the amount due on the bond, and that the complainant may be allowed to pay the whole or such part thereof as to the court shall seem proper, and redeem the premises.

In view of the facts set out in the bill, there can be no question as to the equitable relation between the parties. Wallcer, for himself and Baker, agreed to loan James Bogan a sum of money, and to enter the land for him, and took his bond for the sum loaned, and such interest or commission, as was agreed on between them, and then entered the land, on account of Bogan, hi pursuance of the agreement, taking the title in himself. The qualified deed afterwards given to Bogan must be regarded as a part of the same transaction, in fulfilment of the agreement, and the whole together constitutes Walker & Baker, at most, but incumbrancers upon the estate for the amount secured by the bond. They have an undoubted equitable interest or hen, either for the whole sum or for the amount actually advanced, with lawful interest. And James Bogan and his grantees have the whole estate and are the real owners subject to the extinguishment of this hen. It is immaterial whether the deed is forfeited or not, since its forfeiture would only throw back the title into the hands of Walker for the purposes originally intended. As the facts are now presented, it is impossible to separate the parts of the transaction. This is not the case of a naked conditional deed, and none of the authorities cited by the learned counsel for the respondents are at ah apphcable.

The circuit court was right in overruling the demurrer to the complainant’s bill. But as the case may again be presented to this court upon the pleadings and prooís, and under a different showing of facts, I forbear to enter into a discussion of the principles here announced, or to cite the authorities sus-taming them.

Order affirmed, with costs.


author: WhitoN, J.

text:
    Davis v. Ruggles.
    1. Mew trial — surprise.—Surprise, such as arises from a want of preparation of evidence properly held essential to establish the execution of a deed,' is not a sufficient ground for a new trial.
    2. Sam. — A party is bound to know what evidence is necessary to be produced to prove the execution of a deed or other instrument material to his action or defense, and ignorance that such proof is requisite, or negligence in procuring it to be introduced, are not grounds for a new trial.
    3. Deed — acknowledgement.—The act of March 11,1848, which provides that deeds which had been -executed without the territory, of land lying in it, and had been acknowledged and recorded, should be taken to be executed and acknowledged according to the laws of t'.e territory or state where the acknowledgment was taken, and making the acknowledgment prima fade evidence that the person before whom it was taken was authorized to take it, is applicable only to those deeds, etc., which had been theretofore acknowledged and recorded.
    (2 Chand. 152.)
    ERROR to the Circuit Court for Fond du Lac County.
    The case is stated in the opinion of the court.
    The jury found for the plaintiff damages to the amount of $816. - '
    The plaintiff made a motion for a new trial upon an affidar vit, set out in the opinion of the court.

      Oraham & Davis, for plaintiff in error.
    1. The court erred in rejecting the deed from Joseph Gage to Stephen Gage, dated 13th of November, 1848, when offered in evidence by the defendant in mitigation of damages.
    2.The com! erred in refusing to set aside the verdict of the jury and to grant a new trial, on the motion of the defendant, upon the ground of surprise.

      M. Q. Baton, for defendant in error.
    1. The deed from Joseph Gage to Stephen Gage, as well as the record thereof, was properly rejected when offered in evidence, as there was no proof that it had been executed and acknowledged according to the laws of the state of Ohio. Eev. Stat. 1839, 179, 180.
    2. Surprise in matters of-law is not ground for granting a new trial. 4 Wend. 277.
    3. The court will not relieve a party from the consequences of mere ignorance, inadvertence or neglect, by granting a new trial. Graham on New Trials, 187, etseq.; id. 196, etseq., and cases cited. And if the application for a new trial be on the ground of surprise, the surprise must be such that care and prudence could not provide against it. Gra. on New Trials, 174, et seq., and cases cited.
    4. The affidavit for a new trial is clearly msuffici'ent, in that it does not show how the deed from Joseph Gage to Stephen Gage perfects the title to the land in controversy in the defendant, and does not show that, upon a new trial, the defendant could make out a defense to the action.
   WhitoN, J.

This was an action of covenant, and the breach assigned in the plaintiff’s declaration Was on the covenant of seizin contained in a deed, purporting to convey to the defendant in error, the plaintiff below, a' quantity of land. The plea was non est factum, accompanied with a notice- that the defendant would prove on the trial that, subsequent to the making and delivery of the deed containing the covenant alleged to have been broken, one Joseph Gage made, executed and delivered to the defendant a certain deed, conveying to the defendant the fee simple to the premises whereof the plaintiff alleges the defendant was not lawfully seized, at the time of making the covenant in his declaration set forth, etc.

Upou these pleadings the parties went to trial, and after the plaintiff had made out his case, the defendant offered in evidence, in mitigation of damages, a deed from Joseph Gage to Stephen Gage, dated the 13th day of November, 1848, of eighty acres of land, and proposed to introduce, in connection therewith, a deed from the said Stephen Gage to himself, executed before the deed to the plaintiff. The deed from Joseph Gage to Stephen Gage purported to have been executed in the state of Ohio, and acknowledged before a justice of the peace of that state. To the admission of this deed in evidence the plaintiff objected, on the ground that it did not appear to have been acknowledged before a competent officer. There being no proof before the court that justices of the peace in Ohio had authority to take the acknowledgment of deeds, the court sustained the objection and rejected the evidence. The defendant then offered the record of the deed in evidence, which was also rejected by the court. After the introduction of evidence on the part of the defendant, the cause was submitted to the jury, who found a verdict for the plaintiff, and assessed his damages at the sum of $816. After the verdict was rendered, the defendant moved for a new trial, and, in support of the motion, submitted the following affidavit:

“ Personally came FredericJe F. Davis, the above named defendant, who, after being sworn, doth depose and say, that he verily believes that he has a just and legal defense to the plaintiff’s action in this case, and that, by the verdict of the jury, great injustice has been done to him; that he intended and expected to give in evidence a certain deed from Joseph Gage to Stephen Gage, bearing date the 13th day of November, 1848, and recorded in the register’s office in and for said county of Fond du Lac, the 28th day of November, 1848, vol. G, p. 473, for the west hah' of the southeast quarter of section thirty-five, containing eighty acres of land, and being the same for which recovery is sought in damages in this suit, in mitigation of damages; which deed perfected the title to said eighty acres of land in deponent, and is the same offered in evidence in the trial of the case, and which, if given in evidence, would, in the opinion and belief of the deponent, have limited the verdict of the jury to nominal damages only; that the rejection of said deed by the court, when offered in evidence, took the deponent by surprise, and he was surprised, as, up till that moment, he confidently believed that said deed was, of itself, competent testimony, and he had no intimation, up till that time, from any source, but that said deed would be competent testimony for the purpose aforesaid; deponent further saith, that he was necessarily and unexpectedly absent and out of the state, previous to the sitting of this court, three weeks or thereabouts, and only returned on the Monday morning on which this court commenced its sitting; from that time, up till the case was called on for trial, owing to his official duties, he had neither time to prepare his case orto consult with his counsel.” The court overruled the motion, and rendered judgment upon the verdict. To reverse this judgment, this writ of error was sued out.

There' can be no doubt that the ruling of the court in rejecting the deed offered in evidence, was correct. The statute in force at the time when the case was tried is conclusive. Stat. Wis. Ter. 179, 180. The defendant should have been prepared to prove that the deed he offered in evidence had been acknowledged or proved, as the statute above referred to prescribes ; and in order to do this, he should have shown that, by the law of Ohio, the officer before whom the deed purported to be acknowledged was authorized to take the acknowledgment. The second section of an act of the legislature of the late territory of Wisconsin, passed March 11, 1848, and cited in the argument for the plaintiff in error, which provides that deeds which had been executed without the territory, of land lying within it, and bad been acknowledged and recorded, should be taken to be executed and acknowledged according to the laws of the territory or state where the acknowledgment was taken, and making the acknowledgment prima facie evidence that the person before whom it was taken was duly authorized to take the acknowledgment, does not apply to this casé, as it relates only to those instruments which had been previously acknowledged and recorded.

The next question, and the principal one in the case, is, whether the court erred in not granting a new trial. Where no error has been committed in the trial, this question depends in some degree upon the discretion of the court before whom the motion is made ; but the court may so err in the exercise of its discretion as to make a reversal of the judgment proper. Is this such a case ? The affidavit of the plaintiff in error alleges surprise as the principal ground upon which he bases his application, and the surprise consists in the ruling of the court rejecting the deed which he offered in evidence. This is not surprise. The plaintiff in error went to trial without being prepared to show what the statute required him to prove in order to make the deed which he offered in evidence proper testimony to go to the jury. This is no cause for granting a new trial. Jackson ex dem. Horton v. Roe, 9 Johns. 77. The other matters stated in the affidavit as reasons for granting a new trial are clearly insufficient. The plaintiff in error does not appear to have made any’effort to obtain the testimony necessary to make the deed evidence, nor does it appear but that, with reasonable diligence, it might have been procured.

Judgment affirmed.


author: Lare abbe, J.

text:
    Donaldson v. Johnson et al.
    1. Chattel mortgage. — Under the statute providing for filing chattel mortgages, the filing of a chattel mortgage in the town clerk’s office is made equivalent in law to an actual change of possession of the mortgaged property from the mortgagor to the mortgagee, so far as .the preservation of the rights of the mortgagee against third parties is concerned. Cotton v. Marsh, 3 Wis. 221.
    2. Evidence — declarations oe mortgagor. — The declarations of armort-gagor made while in actual possession of mortgaged chattels, but after the'filing of the mortgage, though on the day it was executed, are not admissible to impeach the title of the mortgagee, although they were at the time selling the goods, and applying the proceeds to their own use.

    3. Replevin — verdict.—In an action of replevin in the debinet, a general verdict for the defendants, but not finding specifically upon the title to the property, or the question of its detention, is not sufficient to sustain a judgment; and after the entry of judgement it is too late to correct these defects.
    (2 Chand. 160.)
    ERROR to the Circuit Court of Washington County.
    This was an action of replevin, brought by the plaintiff against the defendants. The-declaration charged the receiving and detention of a quantity of merchandise, which they refused to deliver to the plaintiffs below.
    The defendant denied the taking, and gave a special notice of justification as respects the taking and detention of the goods, to wit: that the defendant Johnson took the goods under and by virtue of an attachment, he being sheriff' of the county of Washington, and justified such taking and detention upon the basis that the title in such goods was not in the plaintiff below.
    On the trial, various exceptions were taken by the plaintiffs in error to the proofs offered and given by the parties, plaintiff and defendant, none of which need be stated here, except such as were considered by the court as being material, and are noticed in the opinion. ■ It was proved that William II. Lord, Daniel Baylis and William Daggett, constituted a mercantile firm at Port "Washington, and which firm was, or claimed to be, indebted. to the plaintiff in a large sum of money; that to secure the sum so claimed, Donaldson, the plaintiff, by his agent, who was acting in securing his debt, took from the said firm a chattel mortgage, for securing such demand; the defendants other than Johnson having taken the goods in store and keeping for Johnson.

    The defendants gave in evidence four writs of attachment, which were levied upon the goods in question, and detained, and which formed the basis of the defense. The giving in evidence these attachments was objected to by the plaintiff, but the court admitted the evidence. The defendants also offered in evidence several other chattel mortgages, executed on the same day of the mortgage to the plaintiff by the firm of Lord & Co., to secure other debts against said firm.
    The declarations of one or more of the firm of Lord & Co., were offered in evidence, whereby it was proved that Bayliss, one of said firm, had at various times made declarations in regard to the execution of the mortgage to the plaintiff, tending to show fraud in its execution, which evidence was objected to, but overruled by the court, and the evidence was given. These declarations appeared to have been made subsequent to the execution of the mortgage, and after the same was deposited with the proper officer to be recorded, and in the absence of the mortgagee. Various other evidence was given on the trial of the part of the defendants, which it was claimed showed fraud on the part of Lord & Co., in the execution of the mortgage to the plaintiff. Such evidence was objected to, but admitted by the court.
    The jury found for the defendants, and assessed the damages for the detention of the property at six cents, and found the value of the property replevied to be $1,918.49, and upon this verdict the court ordered a general verdict to be entered in favor of the defendants. Judgment was given for defendants.

      O. James & II. /S'. Orton, for tbe plaintiff in error.
    1. Tbe notice of defendants was insufficient to admit in evidence tbe said attachments against Lord, Bayliss and Dag-gett, in justification of tbe officer, or tbe said Solon Johnson, one of said defendants, or for any other purpose whatever. 3 Stephens’ N. P. 2647 ; Gould on Plead, cb. 3, §§ 1, 166-9 ; 6 Wend. 438 ; 12 id. 473 ; 8 id. 570 ; 6 Hill, 277; 1 Dana, 578 ; 1 Mass. 153; 4 J. J. Marshall, 254; 11 Johns. 132 ; ■ 13 id. 475 ; 17 id. 320.
    2. Other mortgages of the same date, and to secure the same debt as the one in question, and upon other property than that described in the writ, ought not to have been introduced in evidence for the reason that it was immaterial and irrelevant, and did not show, or tend to show fraud in the conveyance in question. 1 Conn. 393 ; 10 id. 280.
    3. The statements of Lord, Bayliss and Daggett, or either of them, after the execution of the mortgage to the plaintiff in error, ought not to have been received in evidence to prove, or as tending to prove fraud in the execution of the mortgage, or to prejudice in any manner the right of the mortgagee Donaldson. 1 Mass. 165 ; 12 Pick. 98 ; 14 Mass. 245 ; 10 Conn. 60 ; 6 Yt. 325 ; 2 Cow. & Hill’s Notes, 654 ; 5 Johns. 412; 12 Wend. 161; 5 Term. 412 ; 1 Greenl. Ev. 212 ; 1 Stark. 60 ; 4 Mass. 709.
    4. The statements of Daggett, one of the mortgagors, in relation to the value of the property mortgaged to Donaldson, ought not to have been admitted in evidence, for the reason that Daggett was a competent witness in the case. 15 Johns. 493 ; 12 Pick. 89.
    5. The court ought not to have charged the jury as matter of law, that the secrecy of the transaction might properly be taken into consideration by the jury with other circumstances, to show the character of the transaction, for the reason it had nothing to do with the character of the transaction. 16 Pick. 556, 462..

      . 6. Tbe refusal of the court to instruct the juiy, “ that if the jury found that the mortgage was upon a good consideration, and was not taken by Donaldson with intent to defraud, hinder, or delay the creditors of Wm. H. Lord & Co., that the plaintiff ought to recover, and that unless they found Donaldson guilty of taking the mortgage with intent to defraud, hinder or delay the creditors of Wm. H. Lord & Co., that then the plaintiff was entitled to recover.” 14 Mass. 245 ; 3 Met. 99 ; 17 Pick. 453 ; 9 Com. 135.
    7. The judgment of the court upon the verdict of the jury was error. 12 Wend. 161; 12 id. 31; 13 id. 425; 6 Hill. 277, 613; 5 Denio, 21; 7 Hammond (2d part), 232.

      Smith & Palmer, for the defendants in error,
    contended that a mortgage on personal property, unaccompanied by possession, is presumed to be fraudulent and void. 17 Wend. 54-56 ; id. 181. It is not sufficient that the retention of possession was for the mortgagor’s accommodation, for the purpose of carrying on his vocation. Gardiner v. Adams, 12 Wend. 297 ; Doane v. Eddy, 16 id. 223 ; or the better to enable the mortgagor to pay his mortgage debt, BeeJcman v. Bond, 19 id. 444. Where a mortgage is taken upon a stock of goods, which are suffered to remain in the possession of the mortgagor, to be sold at retail or wholesale, as other merchandize ; such mortgage is fraudulent and void as against creditors. Wood v. Lowrey, 17 Wend. 492. A mortgage of hay and grain and produce to secure a debt, the mortgagor to remain in possession and use and consume them, is fraudulent. Bobins v. Par Jeer, 3 Met. 117. If a mortgage containing articles consumable in their use, stipulate or it permits the mortgagor to remain in possession and use them, the conveyance is fraudulent as to creditors. Charlton v. Lay, 5 Humph. 496 ; Smith’s Lead. Cas. 34-74, and the authorities there cited ; see PecJe v. Carmichael, 9 Yerg. 325.
    The declarations of Bayliss, or either of the firm of Lord & Co., made at or about the time of the mortgage, are admissible against them and those claiming under them. 1 Cow. & Hill’s notes, 650, 651, 652; 1 GreenL 133, 134, 135 ; id. 244-601-603. And are admissible to show fraud in the vendor even after sale. Cow. & Hill, 1 part 653, and authorities there cited; Wills v. Farley, 3 Carr & Payne, 395 ; Cow. & Hill, 178, and authorities there cited. Testimony in regard to other conveyances of property, at or about the same time, was admissible. 1 Cow. & Hill’s notes 452-465. They are part of the res gestae, and their admission rests hi the sound discretion of the court. 1 Greenl. on Evidence, 133 ; Rawsonv. Haight, 2 Bing. 104; 9 id. 349-352 ; 4Pick. 379 ; 11. id. 309.

       See Grant v. Lewis, 14 Wis. 487, where similar questions were before the court and considered. If the mortgagors remaining in possession had an agreement or understanding, cither verbal or written, with the mortgagee, authorizing them to apply the proceeds of sales to their own use and benefit, it is presumed the ruling in the case would have been in favor of the admission of the declaration. Such an agreement, whether incorporated in the mortgage or existing by parol, would, it seems, render the mortgage fraudulent as against the creditors of the mortgagor. Ford v. Williams, 13 N. Y. 577; Conkling v. Shelley, 28 id. 360. But an agreement that the mortgagor shall remain in possession and sell the property for cash only, and for the exclusive use of the mortgagee is not necessarily fraudulent. Miller v. Lockwood, 32 id. 293.
      In the case of Donaldson v. Johnson, supra, there was nothing to show but that the acts of the mortgagors, in selling and using the proceeds, were wrongful as against the mortgagees. There was no evidence in the record to show his consent to the sale and appropriation mentioned. See, also, Place v. Langworthy, 13 Wis. 629.

   Lare abbe, J.

This cause was tried before me at the last term of the Washington county circuit court. The principal ground of error is the permitting the declarations of one of the mortgagors, Bayliss, to be given in evidence to the jury, to show fraud in the execution of the chattel mortgage to Donaldson: I decided that these declarations should be received, because they were shown to have been made while the mortgagors remained in possession of the property, and upon the same day that the mortgage was executed. But I am now satisfied that my decision was wrong, and concur with my brethern that the judgment should be reversed. It appears pretty plainly that Bayliss made these declarations subsequent to the delivery of the mortgages (for there were several of them) to the town clerk to be filed ; and this filing our statute makes equivalent to an actual change of possession. If, then, there had been a change of the possession, would the statements of any one or all the mortgagors have been received to show fraud in the transaction? Certainly not. The authorities are nearly all the other way, and it is now too well settled to be questioned. The declarations of a former owner cannot be received to affect the title of a succeeding owner, where such declarations are made after the former owner has parted with his interest. Hurd v. West, 7 Cow. 752; Sprague v. Kneeland, 12 Wend. 161; 14 Mass. 245.

It was contended, however, by the counsel for the defendants in error, as the mortgagors remained in possession of the property, using and selling the same, and applying the proceeds to their own use, that their declarations, made under such circumstances, were properly admitted to show the character of the original transaction. Were this a case of first impressions, this position would, in my mind, admit of no question; but the authorities are now the other way. But this question aside, there is another difficulty apparent on the record, which is insuperable. The verdict does not warrant the judgment. By the pleadings, two issues were made. 1. The detention of the property, and 2, the title to it. There was a general verdict for the defendants, not in form a finding upon these issues, and though it was probably enough to have warranted the court in putting the verdict in proper form, yet as no application was made by the defendants for this purpose, but they chose to enter up their judgment on the verdict such as it was, it is now too late to correct it. Sprague v. Kneeland, 12 Wend. 161; Rogers v. Arnold, id. 30.

For these reasons the judgment of the circuit court must be reversed, and the cause remanded for a new trial.

Judgment reversed.


author: Htjbbell, J.

text:
    Greene v. Holley.
    1. Evidence oe party — practice.—The right to compel a party to give evidence on the trial, or in default of his submitting to testify, allowing the party so calling on him to testify, is a statutory right, and the party seelring the benefit of it must strictly comply with the provisions of the statute.
    2. Same. — A party whose proceedings to require his adversary to be sworn on the trial are defective, will not, on the failure of his adversary to appear and be sworn, be entitled to himself give evidence in the cause.
    3. Same — appeal—notice.—A notice given under the statute, relating to the swearing of parties as witnesses for a trial in justice’s court, will not suffice in case an appeal is taken, for the purposes of a trial in the appellate court. A new notice must be given.
    (2 Ghand. 168.)
    ERROR to the Circuit Court for Rock County.
    This -was au action of assumpsit before a justice upon a promissory note made by the defendant below, the plaintiff in error here. The defendant in that court set up several matters of defense, and issue was joined.
    Anterior to the trial before the justice, a notice had been given by the plaintiff below to the defendant, that the plaintiff would require Mm to be sworn on the trial of the cause before the justice; and by the record he appears to have been sworn. Judgment passed for the plaintiff in that court.
    The defendant, Greene, appealed to the circuit court, where the appeal was tried, and on that trial the defendant below produced the former notice served on Min to give testimony before the justice, and claimed to be sworn as a witness on the trial then depending. This was objected to by the counsel for the plaintiff below, and the court decided that Greene, the defendant, was an incompetent witness, and could not be sworn under such notice. A verdict was found for the plaintiff against the defendant for $46 damages, and the cause came into this court on a writ of error.

      A. Hyatt Smith, for the plaintiff in error,
    claimed that where a party had given a notice to the adverse party to give evidence on the trial of a cause in the court where it was depending, and that, though the cause should be carried before another tribunal by appeal, and be there retried without any additional notice to the party to give evidence, the notice so given in the court below would be operative, and entitle the party to the testimony of his adversary, but admitting at the same time that there -were no direct decided cases upon the subject; yet he claimed that the following cases were analogous to this : 6 Johns. 19 ; 19 id. 837 ; 4 Wend. 626 ; 3 Cow. & Hill’s Notes, 1184 ; and that where a party makes his antagonist a -witness, and claims the benefit of his evidence on the trial, and the cause is transferred to another tribunal, and there tried again, it was competent for the party who had been once sworn in the cause, under a notification for that purpose, to be again sworn, though objected to by the party who had once used him as a witness; that the right to be sworn was fixed by the previous use of the party as a witness.

      D. Haggle, for the defendant in error.
   Htjbbell, J.

The plaintiff in error, who was notified to appear and testify on the trial of the cause before the justice, on appeal to the circuit court, offered himself as a witness, no new or further notice having been served on him, and the defendant in error having omitted to notify or call him as a witness in that court.

The practice has prevailed, and I think correctly, of allowing a party notified to appear and testify in a cause to offer himself as witness, in case the opposite party does not call him. Under this practice, and not under any positive provision of the statute, I suppose, the offer of Greene's testimony was made. The difficulty in the case is, that there was no notice requiring him to appear and testify in the circuit court, and I think his testimony was properly rejected.

The right to compel a party to give evidence in the cause is a strict statutory privilege. The party claiming the privilege must show full compliance with the statute, or he loses his right. In this case, Holley had not taken the requisite steps to compel Greene to testify, and the right of Gi'eene could not be broader than that of his opponent. It was contended, however, that the notice served on the trial in the justice’s court was sufficient to require the attendance of Greene as a witness in the circuit court. This would be giving the statutory right an unwarrantable latitude.

It is true, the issue and pleadings on appeal are to be the same as in the court belorv, but it does not follow that the witnesses or proofs are to be the same. On the contrary, the very object of an appeal may be to procure further evidence, or to dispense with the evidence of the party called as a witness before the justice. This is clearly the right of each of the parties. Besides, there is no sound reason why a party whose testimony is wanted in the appellate court should not have a proper notice to appear and testify, as well as the other witnesses in the cause. It would not be contended for a moment that service of a subpoena to testify before the justice would be sufficient to require the attendance of witnesses in the circuit or county court.

Judgment affirmed with costs.


author: Whitox, J. Stow, C. J.,

text:
    The State v. Cameron.
    1. Criminal law — evidence—dyins declarations. — On a trial for murder it is competent to' give in evidence the dying declarations of the deceased, made while in extremis, and fully conscious that he could not survive to show the cause of death, hut are not evidence of any other fact.
    2. Same. — Such declarations are admissible only in cases of homicide, when the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. Whether the declarations shall go to the jury is for the court to determine, but what weight they shall have is for the jury to determine, in view of the mental condition of the declarant at the time, and all the circumstances under which they were made.
    3. Ybnue — jurisdiction.—Under the constitution, article 9, § 1, the state has concurrent jm’isdiction on all rivers and lakes bordering on it, so far as they form a common boundary; and an indictment for a crime committed on such rivers or lakes, where they form a common boundary, may be found and tried in the county within the state bordering upon and opposite the place where it was committed.
    4. Jury — peremptory challenge. — Where, after the panel of the jury is complete, and they are accepted by the state and the accused, though not sworn, it is then too late for the accused to challenge one of the number, though his peremptory challenges are not exhausted. Stow, C. J., dissenting.

    5. Grand jurors — challenge.—It is not competent for a party who anticipates that a presentment or charge will be made against him for a crime, to question or object to grand jurors for any matter of disqualification, except such as is recognized or enumerated by statute.
    6. Same — challenge to the array. — It is not a good cause of challenge to the array of grand jurors that the sheriff, by order of the court, summoned fifteen additional jurors by a venire for that purpose, to complete the jury, without the list of jurors summoned being first called; the deficiency in the panel having been ascertained by the court by inquiry of the sheriff; nor that the sheriff who summoned them is the son of the prosecuting attorney.
    7. Petit jury — challenge to the array. — The fact that the sheriff who summoned the petit jury is the son of the prosecuting attorney is no ground of challenge to the array; and a challenge to the array on the ground that the officer who summoned them was not indifferent will not be allowed, unless the accused produces proof to sustain it.
    8. Indictment — principals.—Where an indictment for murder in one count chai’ges A. with giving the mortal wound, and B. with being present, aiding and abetting, and in the other charges B. with giving the mortal wound, and A. with being present, aiding and abetting, it is not inconsistent nor incongruous, as both are charged in each count as being principals.
    (2 Ohand. 172.)
    CERTIFIED case from tbe Circuit Court for Orawfard County.
    This case came before tbe court on tbe report of tbe judge bolding tbe circuit court for Crawford county, before whom Cameron was tried for murder, and convicted of manslaughter. The judge having doubts as to some of the questions raised on the trial, and decided by him adversely to the accused, desired to be instructed and advised in regard thereto, by this court; and had in the meantime suspended judgment.

      F. J. Dunn, for the defendant Cameron.

    1. The organization of the grand jury was erroneous, in this, that the court ordered a new venire to be issued upon the supposition merely, that there were not in attendance upon the court a sufficient number to constitute a legal jury; that no act was done by the court to ascertain such fact; and all the evidence which it could have had was the report by the sheriff that eight jurors only were in attendance, which the counsel insisted did not invest the court with authority to order a new venire to complete the panel; that the court should have ascertained the deficiency, if any there was, by directing a call to be made of such jurors as were present, and thus have ascertained, in the only way he could, judicially, have been informed of the fact; that the report of the sheriff upon the number of jurors present, was not within the scope of his ministerial duty or authority, and could not make evidence of a fact upon which the court could exert its judicial functions ; that until a deficiency of jurors had been ascertained by other means, the ordering the issue of a new venire was erroneous, and impeached the judicial integrity of the indictment found by the jury thus organized. He referred to the following authorities in support of his position. Old Rev. Stat. 510, 511; 2 Black. 477 ; 3 Wend. 314; 9 Mass. 100, 107: 1 Black, 317.
    2. That the court should have allowed a peremptory challenge of a juror notwithstanding the juror had been questioned (but not under oath), as to being indifferent, provided, as the fact was, that the right of peremptory challenge had not been exhausted. 5 Leigh, 714, 715; 10 Pick. 478 ; 1 Denio, 304. He also claimed that the dying .declarations of the deceased, under the circumstances disclosed, ought to have been rejected, and cited 14 Com.'Law, 495 ; 19 id. 518. That it was not sufficiently averred in the indictment where the mortal wound was given to give jurisdiction to the court. The very place should have been stated so as to have given jurisdiction. 2 Va. Cas. 205.

      Q. James and B. O. Basfman, in behalf of the state,
    and acting' for the attorney-general, in his absence, argued that where a juror, in a capital case is called and examined, and found upon such examination, to be indifferent, he could not be peremptorily challenged at a subsequent time, and after the whole panel had been completed ; that the right of challenge should be exercised seriatim as the jurors were called, until the right of challenge should have been exhausted. 4 Mason, 158 ; 7 Met. 500 ; 18 Conn. 166. That the right of peremptory challenge must be exercised before the juror is examined in regard to his prejudice against the accused, and to that point cited, 2 McLean, 611.
   Whitox, J.

This case comes here on the report of the circuit judge, before whom it was tried. The defendant was indicted for murder, and by the jury found guilty of manslaughter. The judge having doubts as to the correctness of his ruling, upon some of the questions which arose at the trial, reported the case to this court, according to the statute.

The first point to be decided, is in regard to the correctness of the ruling, in admitting proof of the dying declarations of the deceased.

It appears from the report, that a witness was introduced by the prosecution, and interrogated as to these declarations. The questions were objected to by the defendant’s counsel, on the ground that no foundation had been laid for the introduction of the testimony, by showing that the deceased was conscious, when he made the declaration, that he could not survive.

The witness was then questioned upon that subject, and answered that the deceased was conscious at the time that he could not survive. The court then decided that the declarations might be proved. Before the witness testified farther in regard to them, it appeared that they were reduced to writing at the time they were made ; the counsel for the defendant then objected to thd evidence concerning them unless the writing was produced. The writing was then produced, and went to the jury as evidence.

We think the ruling of the court upon this subject was correct. The general doctrine in regard to the admissibility of dying declarations in evidence is well settled. When made under a sense of impending death, they are proper testimony to go to the jury to show the cause of death, but are not evidence of any other fact.

It appears further from the-report, that after the evidence upon this subject had gone to the jury, other testimony was introduced in regard to the condition of the deceased when the declarations were made, and the circumstances under which he made them. Upon this subject the court charged the jury in substance, that if the deceased, at the time he made the declarations, was conscious that he could not survive, they were evidence for the juxy to consider; but if he was not conscious of impending death — if he had then a hope of recovery, they must be excluded from the consideration of the jury. The court also charged the jury, that they were to consider whether the deceased, at the time when the declarations were made, had such possession of his reasoning faculties, as entitled his declarations to credit.

We think the charge of the court upon this subject was correct. The question as to whether the declarations shall go to the jury, is one for the court to determine. Rex v. Hux, 1 Stark. 521; and in order to make them admissible, the case on trial must be one of homicide, “ when the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations.” Rex v. Mead, 2 Barn. & C. 605.

In this case a witness testified, before proof of the declarations was received, that they were made when the deceased was conscious that he could not survive. This was sufficient to lay the foundation for proof of them, and afterwards, when farther testimony upon this subject had been received, the court properly left it to the jury to determine what weight should be given to the declarations, in view of all the circumstances under which they were made. Greenl. Ev. 160.

The court further reports that he was asked to charge the juiy as follows: ‘ ‘ That if there is a doubt whether he died in this county or in the county of Wabashaw and territory of Minnesota, that this doubt should be resolved in favor of the prisoner; that, so far as the above point is concerned, it is immaterial whether the courts of this state have jurisdiction over the entire Mi^issippi or not; that the allegation that the death took place in this county must be proved by the prosecution, or the defendant will be entitled to an acquittal.” This the court refused to do, but, upon this subject, charged the jury as follows:

“As to the venue, I think, although it is, so far as I am aware, a new question in our courts, it would be sufficient if it be proven that the mortal wound was given in this county, if the deceased died anywhere upon the Mississippi, within the jurisdiction of this state, and neither above nor below the county line bordering upon the river.”

We think the charge of the judge correct. The constitution of the state, Art. 9, § 1, provides that this state shall have concurrent jurisdiction on all rivers and lakes bordering on this state, so far as such rivers or lakes shall form a common boundary to this state and any other state or territory.

The judge further reports, that before the jury had been sworn, but after they had been accepted by the counsel for the prosecution and by the defendant, the defendant asked leave to challenge peremptorily a juror, he not having challenged the number allowed by the statute. This the court refused to permit him to do.

A majority of this court think that this ruling was correct. The cases cited by the counsel for the prosecution show that in two of the states the practice is hot to allow a defendant in a criminal prosecution to challenge a juror peremptorily, after he had been accepted, while in Massachusetts it appears that the privilege must be exercised before the juror is examined. Commonwealth v. Rogers, 7 Met. 500. An examination of the authorities shows that the practice is different in different states, and has not been uniform in the same courts.

The judge further reports, that he refused to permit the defendant to put certain questions to the grand jurors, for the purpose of establishing a cause of challenge for favor, and restricted him to the causes of challenge enumerated in the statute. The statute referred to, Laws of Wis. Ter. 269, § 14, provides that a person held to answer to any criminal charge, may object to the competency of a grand juror, before he is sworn, on the ground that he is a prosecutor or a witness on the part of the prosecution.

The question which the defendant proposed to put to the jurors did not relate to either of the causes of challenge mentioned in the statute, and the court decided correctly in refusing to allow them to be put to the jurors. Tucker's Case, 8 Mass. 286.

The judge further reports, that he refused to allow the defendant to challenge the array of grand jurors, for the reasons set forth in his motion, which are, that fifteen jurors were summoned by the sheriff, by order of the court, to supply a deficiency in the regular panel; that the court did not order the list of grand jurors called, for the purpose of ascertaining how many were in attendance, but ascertained from the report of the sheriff that only eight were present; that the jurors thus summoned were taken from the county at large, and that the sheriff was the son of the prosecuting attorney.

We think that the decision of the court was right. It is not claimed that, in point of fact, there was not the deficiency of jurors to be supplied, which the court ordered the sheriff to supply, but it is said that he did not ascertain the deficiency in a proper manner. The statute provides that, in case of a deficiency of grand jurors in any court, writs of venire facias may be issued, etc. If the deficiency in fact existed, and the court was satisfied of its existence, it was its duty to award a venire facias, as was done in this case. The statute is silent as to the mode of proceeding to ascertain the deficiency. It is no objection that the jurors, who were summoned by the sheriff, were not drawn, but were taken from the county at large. The statute was complied with, if the persons summoned were such as were qualified by law to serve; nor do we think that the fact that the sheriff who summoned them was the son of the prosecuting attorney constitutes an irregularity which would justify the challenge.

The judge further reports, that he refused to permit the defendant to challenge the array of petit jurors for the reason that the sheriff who summoned the jurors was the son of the prosecuting attorney, and, as was alleged by the defendant, not indifferent between him and the prosecution.

The fact that the sheriff was the son of the prosecuting attorney is, of itself, no cause of challenge, and we are not informed that any proof was offered to the court to show that the sheriff was not indifferent. A challenge to the array of petit jurors, for the reason of the partiality of the sheriff who summoned them, unaccompaxfied by any offer to prove the partiality alleged, it was clearly the duty of the court not to allow.

There is another matter reported by the judge, and that arises upon the indictment.

It appears that objection was taken to the indictment, because it charges the defendant Garrieron with giving the mortal wound, in two counts, and one David Lefly with being present, aiding and abetting; while, in another count, Lefly is charged with giving the mortal wound and Garrieron being present, aiding and abetting. It will be seen that they are both charged as principals, and there is no incongruity in charging the offense in this way. 1 Chit. Crim. Law, 256. We see no reason for arresting the judgment.

Stow, C. J.,

dissenting. While I approve in the main of the rulings of the circuit court in this case, I cannot sanction the refusing of the prisoner his peremptory challenge of the petit juror.

I have always supposed, and such has been my whole observation and experience, that the right on the part of the prisoner, of peremptory challenge in capital cases, within the prescribed number, existed until the actual swearing of the juror. I have seen this right often exercised, even after the oath had been partly administered, and I have never known it disputed. The very swearing, in such cases, of jurors separately, and the last solemn admonition, juror, look upon the prisoner! prisoner, look upon the. juror! I suppose are intended to .call the prisoner’s attention, at the last moment, to the person of his trier, and to give him an opportunity, to the last, of excluding an objectionable one. The court of appeals of Virginia, a tribunal second to none in our country for ability, have with entire unanimity decided the question, in a case precisely similar to the one at bar, and have allowed the challenge. Commonwealth v. Hendricks, 5 Leigh, 709. We have been referred, however, to the syllabus of a Connecticut case, the report not being here, which indicates a different ruling. I never like to receive a reporter’s memorandum for the decision of a court, and I very much doubt whether the supreme court of Connecticut ever made the decision represented. If, however, it has, I prefer that of Virginia as being the more correct exposition of tbe old practice. And that practice, I take it, is to control. The trial by jury, as it existed of old, is the trial by jury secured by our national and state constitutions. It is not granted by these instruments ; it is more — it is secured. It is no American invention. Our fathers brought it with them to this country more than two centuries ago, and, by making it a part of the constitution, they intended to perpetuate it for their posterity, and neither legislatures nor courts have any power to infringe even the least of its privileges. And I think it becomes us to be particularly cautious on this subject, in capital cases, at a time when a sensitive, but in my opinion a mistaken, humanity, has succeeded in abolishing the death penalty in several states, and is constantly assailing our own legislature for the same purpose.

In my opinion the refusing to allow the prisoner his peremptory challenge was erroneous, and for this reason I am in favor of granting a new trial.

Conviction affirmed.