text:
    Elderkin v. Winne et al.
    1. PARTNERSHIP. — Where, by an article of agreement between two persons for carrying on a trade or business of a particular nature, and in the same instrument a third party joins with one of the other parties to carry on another trade or business for their separate account, the relation of partners is not created between the three, so as to enable a person dealing with either branch of the concern to maintain an action against the whole.
    2. Same. — The mere joining in the same instrument of two separate co-partnerships, where all are hot interested in both, cannot create any greater liability, on constitute-any other relation, than would result if the instruments creating the two co-partnerships had been separate and distinct, the one from the other.
    (1 Ghand. 27.)
    ERROR to tbe District Court for Walioorth County.
    This action was commenced before a justice of Walworth county, and the plaintiffs, Winne <& Brown, there declared as partners. The defendant pleaded in abatement the non-joinder of a third person, one Margrat, as plaintiff. Upon that issue the justice non-suited the plaintiffs.

      The case was carried to the late district court by certiorari, and the district court reversed the judgment. Upon such reversal a writ of error was brought to this court.
    The parties submitted the case without argument.
   Larrabee, J.

This cause was submitted without argument. The defendants declared before the justice as partners ; and this being put in issue, was decided against them, and judgment of nonsuit rendered. This was reversed upon certiorari by the district court.

The proof consisted of a written agreement to carry on the blacksmith business ; one furnishing capital and the other labor ; the profits and expenses to be divided equally.

In the same article was an agreement between Winne and one Margrat, to carry on the business of painting; and it was contended that this constituted a partnership between them all; and upon this ground judgment was rendered against the plaintiff below. In tiffs the justice was clearly wrong ; as it is difficult to imagine upon what principle of law, or by what process of reasoning, Brown and Margrat were considered bound by the agreement as partners. The contract of Winne with each, was a separate and independent one for the carrying on of separate and independent branches of trade. The ratio of division of profits was different in each, and in no manner was Brown and Margrat to participate in the profits of each other’s labor, or furnish each other with capital.

The district court very properly reversed the judgment, and the judgment of that court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Stow, C. J.

license: Public Domain

text:
    Quarles, impleaded with Spring v. Robinson.
    1. Attachment — affidavit.—It is irregular to entitle an affidavit in an attachment suit under the territorial statutes, as the affidavit is antecedent to, and the foundation of the suit, and there is no suit depending until the attachment issues.
    2. Same. — An affidavit for an attachment must distinctly and plainly show a debt due, and it is not sufficient that it shows it inferentially.
    3. Same. — Though the affidavit may, in its preliminary part, state a debt., to exist, yet if in a subsequent part it states the debt to be “pursuant to a judgment,” etc., the preliminary statement is thus qualified and rendered uncertain and insufficient.
    (1 Olumd. 29.)
    ERROR to the late District Court for Hacine County.
    This was a suit commenced by attachment by the defendant in error against the plaintiff in error, under the territorial statute.
    The affidavit did not positively state the indebtedness of the defendant below, under the provision the of statute, although, in the preliminary part of the affidavit, it assumed positively that the indebtedness existed ; but in the subsequent part of it, and as descriptive of the manner in which the debt accrued, it alleged it to have accrued “ pursuant to a judgment of the supreme court of Louisiana,” instead of stating the very consideration on account of which the indebtedness accrued.
    The court below held the affidavit sufficient to maintain the attachment, and received the record of judgment in the court of Louisiana, as evidence against the defendant below, and judgment was given in accordance therewith. The defendant sued out a writ of error.

      M W. Evans, for plaintiff in error, contended :
    1. That the court below should have quashed the attachment for the insufficiency of the affidavit on which it issued, because it was entitled in the suit; and to that point he cited Graham’s Prac. 160; 2 Johns. 372; 2 Cow. 500. That the affidavit for procuring the attachment was entitled in the cause, and it was irregular, because there was no canse depending in the court until the attachment was issued. Until then, there was no suit depending to be entitled. The affidavit was merely preliminary and antecedent to the commencement 'of the suit, and until the process issued there was no suit.
    2. That there was no positive oath of the specific indebtedness of the defendant below to the plaintiff below, to authorize the issuing the attachment. 2 Durn. & East, 55 ; 1 McLean, 471.
    8. That no positive or definite amount of indebtedness was shown, within the purview of the statute. Burnett, 290.
    4. That the writ was issued under the authority of the judge of probate, who was not authorized by law to allow the writ.

      Lovell & Bond, for defendant in error.
   Stow, C. J.

We should be glad to affirm this judgment, for we are satisfied that substantial justice has been done, and that there is no irregularity subsequent to the incipient proceedings. But the original affidavit, on which the attachment issued, is too defective to give jurisdiction. Though the entitling, irregular as it is, might, perhaps under the practice of the late district courts be permitted; the describing it of October term, 1847, when in fact, it was of the preceding April term, being sworn to in June, is too palpably erroneous to be overlooked.

Again, we are of opinion that the affidavit is defective in not swearing positively to the indebtedness. This being a statutory proceeding of a somewhat harsh character, and wholly different from that of the common law, the provisions of the act must be strictly observed, and nothing can be presumed or taken by inference. In the first instance, the affiant swears directly and clearly to the indebtedness ; and had he stopped here, only adding the character of the debt, the affidavit would have amdoubtedly been sufficient. But instead of simply describing the nature of the debt, he says that it is pursuant to a judgment of the supreme court of Louisiana. This -will not do. The word pursuant has several meanings, some of which, in the connection the word is here used, would qualify the positive declaration before made into a mere assertion that, according to the judgment, so much was due. This was not enough. 1 McLean, 471; 1 Durn. & East, 406. According to — as appears from — by the terms of — pursuant to — or other equivalent terms referring to the judgment, may be all true, and yet, in point of fact, nothing be due upon it. For these defects in the affidavit the judgment is reversed.

Note. — The chief justice, in addition remarked, that the test of the sufficiency of an affidavit was, whether the party making it could be indicted for perjury if the matters stated were false > and that an affidavit entitled in a suit, when no suit was pending in the court, in which the title purported it was made, and which affidavit was made for the purpose of obtaining process, by which a suitshould be commenced, was not such an affidavit as that a prosecution for perjury could be sustained upon it, though false in fact.

In support of this opinion, see 2 Cow. 500; 7 Term, 455; 1 Bos. & Pul. 36,227 ; 2 Johns. 372; 12 id. 461.


author: Hubbell, J.

text:
    Moore v. Kendall.
    1. Just — chabge of judge. — It is the duty of the jury to reconcile the discrepancies or contradictions in the testimony of -witnesses, where they exist, if possible; and it is error to instruct the jury that they ought not to attempt it.
    2. Sale on Sunday. — Where the sale and delivery of property has been made on Sunday, though prohibited by law, neither the vendor nor vendee can rescind the sale and recover back the property or the purchase money on that account; and a third party, failing to show a claim to the property superior to that of the vendor anterior to such sale and delivery, is barred by a sale thus made Rom questioning the title of the vendee. The vendee, in such case, may claim the protection of the well settled principle of law, “in pari delicto potior est condAtio def&ndentis.”

    (X Chand. 33.)

      ERROR to the late District Court for Grant County.
    This was an action of replevin, for the taking and detention of a quantity of goods and chattels. The goods, etc., were replevied by the coroner of Grant county, the sheriff of said county being the defendant in the suit, having levied upon the same by virtue of one or more executions.
    The plaintiff claimed the property in the goods by virtue of a sale thereof to him, by James Moore, his brother. It became a material point on the trial whether the sale and transfer of the goods in question was made hcma fide ; and also whether such sale and transfer was made prior to the levy made by the defendant or not, and whether the sale was made on Sunday. On the trial, James Moore and John Stone were witnesses on the part of the plaintiff, and gave testimony in relation to the sale of the goods, and as to the levy made thereon by the defendant. There was an obvious discrepancy in the testimony given by them, but which is unnecessary to be here stated, as the opinion of the court does not involve necessarily the real matter of such discrepancy. The jury, under the charge of the presiding judge, gave a verdict in favor of the defendant for the value of the property, and assessed his damages.
    A motion was made for a new trial on behalf of the plaintiff, on the ground of the charge of the judge ; which motion was overruled; and the plaintiff sued out his writ of error, bringing the cause into this court upon the exceptions taken.
    The judge, on the trial, charged the jury, “that it would be reasonable and proper in the jury to reconcile slight discrepancies in the plaintiff’s witnesses ; but if there were contradictions on material points, or facts equally within their knowledge, that is to say, James Moore and John Stone, the plaintiff’s witnesses, it certainly was not the duty of the jury to attempt to reconcile such contradictions. It was the plaintiff’s misfortune to have brought on the stand witnesses, contradicting ea'ch other thus, on material facts equally within the knowledge of each; and the weight of their testimony would be greatly weakened, if not almost entirely destroyed.”
    He also charged, “ that if the sale, by James Moore to the plaintiff, of the goods in question, was made on Sunday, then said sale and transfer made on that day were absolutely void ; and the purchaser (the plaintiff) acquired no right or title to the property in dispute.”

      Mills <& LaJcin, for the plaintiff in error,
    argued that the charge of the judge, as respects the duty of the jury in considering the discrepancy in the testimony given by Moore and Stone, was erroneous, citing 2 Cowen’s Treatise (3d ed.), 449. As to the duty of the jury in reconciling contradictory evidence, they cited 7 Wheat. 338; 4 Binney, 201; 12 S. & R. 283 ; StarMe on Ev. 480, 488. That though the sale was made on Sunday, and the contract of sale was fully executed and the property passed, yet the court would not interfere to restore the parties to their original condition; being in pari ■delicto, neither party could be released ; and. to support this doctrine cited Story’s Eq., \ 295; 11 Mass. 369; 13 Eng. C. L. 341, 353.

      Ben O. Bastman, for defendant in error,
    cited Starkie on Ev. 479, 481, 483 ; 7 Serg. & R. 301; 1 id. 173. That the contract of sale being void by law, being made on Sunday, no rights could be acquired under it. That no valid consideration having been given on the pretended sale, it was for that cause void ; and that the creditors of the plaintiff might levy upon and hold the property assumed to have been thussold.
   Hubbell, J.

If this case were to be decided on the weight of evidence as shown by the bill of exceptions, the judgment of the district court might be affirmed. But this court does not sit in the capacity of a jury. The only error assigned related to the charge of the judge.

The action was brought to recover a quantity of merchandise, which had been levied upon by the defendant in error as sheriff of Grant county, under executions in his hands, against the property of Janies Moore. The plaintiff in error claimed as a purchaser from James Moore. On the trial, James Moore and John Stone were called as witnesses by the plaintiff, to prove a sale and transfer of the property from James Moore to Jonathan B. Moore., the plaintiff in error. Both the fact and the time of the sale became material questions. There was some contradiction or discrepancy between the two witnesses, Stone and Moore, on these points. The sale, if made at all, appears to have been made either on the first day of November, 1847, which was Sunday, or between the first and seventh of November.

The executions were put into the sheriff’s hands on the second, and an actual levy was effected on the tenth ; but an effort was made to effect a levy on the sixth, which was resisted, but which must be regarded as having fixed the sheriff’s lien on the goods. The court instructed the jury as follows: 1st. “That it would be reasonable and proper in the jury to reconcile slight discrepancies in the testimony of the plaintiff’s witnesses, but if there were contradictions on material points or facts, equally within their knowledge, that is to say, James Moore and John Stone, the plaintiff’s witnesses, it certainly was not the duty of the jury to reconcile such contradictions ; it was the plaintiff’s misfortune to have brought on the stand, witnesses contradicting each other thus, on material facts equally within the knowledge of each ; and the weight of their testimony would be materially weakened, if not almost entirely déstroyed.”

The errors assigned on the second branch of the charge were abandoned ; and the third was as follows : “That if the said sale, by the plaintiff to his brother, James Moore, was made on Sunday, then said sale and transfer, made on that day, was absolutely void, and the purchaser, Jonathan B. Moore, acquired no right or title to the property in dispute.”

To these instructions exceptions were properly taken, and the question for this court is, whether such instructions were correct.

In regard to the matter of discrepancy, I think the court erred. There was clearly a question of fact for the jury (12 Serg. & R. 283 ; 5 Wend. 301) ; and the effect of the charge was to cut off inquiry on the subject; Whether the discrepancies were material or slight, could make no difference that I can understand ; and hr either case, it should have been loft to the jury to try and reconcile them. If, upon a full and fair attempt, they failed, still it would not follow as an inference of law that the testimony of the one was to neutralize that of the other. Conflicting witnesses are not necessarily to be regarded as opposing powers of equal momentum, which are to be measured by mechanical rules. The court should have told the jury that, failing to reconcile their statement, “ on material points, equally within the knowledge of each ” it became their duty to inquire whether each of the witnesses was equally credible; whether the statements were equally consistent; whether, from their character, appearance, and relations to the parties, or from any other circumstances connected with their testimony, more reliance ought to be placed upon the one than the other. Yery possibly one of them was unworthy of credit; at any rate, it has been urged on the argument by counsel for the defendant in error, that one of them was absolutely perjured — and if so, certainly bis statements ought not to have been sufficient to defeat those of the other. Looking at the bill of exceptions, I am inclined to think the charge of perjury is not sustained; but that most of the discrepancy arose, not from statements of fact, but from one of them having sworn to a conclusion of law. And in this view of the case I think their statements might have been reconciled. At all events, it could not happen until the jury should find, in view of all the circumstances I have mentioned, that the weight of evidence was equally balanced, that the court could properly say to them as a matter of. law, “ that it was the plaintiff’s misfortune to have brought to the stand witnesses contradicting each other,” and that “ the weight of their testimony was greatly weakened, if not almost entirely destroyed.”^

With respect to the other branch of the instructions, it seems to me the court below was equally in error. Admitting the sale of the goods to have been made on Sunday, it by no means follows that it was void for all purposes. There was an actual transfer of property from James Moore to his brother, the plaintiff in error ; and it was not possible thereafter for James Moore or his assigns to recover it back. Between the parties, it was an executed contract; and, unless' the defendant in error could show some claim superior to that of James Moore, the vendor, he could not disturb the possession of the vendee. On this point the authorities are conclusive. 11 Mass. 369; 13 Eng. Com. L. 351; 9 id. 193.

This case must not be confounded with others. The defendants in error do not claim against James Moore as an insolvent debtor, with respect to the transfer in question. They do not raise the question of a fraudulent sale. They stand upon the naked right arising from a void sale ; a sale void, simply because it was made on Sunday. For the purposes of this question James Moore may be assumed to be a man of ample means and of honest purposes. The point before us is simply this : whether any man, under any circumstances, can make a valid transfer of property on Sunday. If he cannot, the instructions were right; if he can, they were wrong.

I thirds it would be carrying the rule of law further than the policy of the statue requires, and further than the current of decisions on this subject warrants, to deny that such a transfer, when actually completed, without fraud, should stand between the parties. After such a transfer, notwithstanding the supposed or real violation of the statute, the vendee may claim the protection of that well-settled principle of law, “ In pari delicto potior est conditio defendentis.”

It is not without regret that I am drawn to these conclusions with respect to the instructions of the learned and able judge of the court below. With my impressions of the merits of the case, as presented in the testimony, I could wish the jury had been left free to pass upon the main questions, which seem to me to be, whether there was an actual side of the goods before the levy ; and if there was, whether such sale was fraudulent as to the creditors ? I do not mean by these remarks to prejudice the case ; but inasmuch as the jury may have been improperly controlled by the charge of the judge, there must be a new trial.

Judgment reversed, with costs.


author: JacksoN, J. Stow, C. J.,

text:
    Bond v. Seymour.
    1. Beato — juey.—In the case of a hill of sale or chattel mortgage to secure a deht, where fraud is alleged against it as an extrinsic fact, the question of fraud must he submitted to and passed upon hy the W
    2. Exemption — ebato.—A transfer or conveyance of property exempt from levy and sale on execution, cannot he considered fraudulent as against creditors, though, hut for such exemption, it might have heen so considered. Drmitzer v. Bell, 11 W-is. 114.
    (1 Ohand. 40.)
    ERROR to the late District Court for Hacine County.
    This was an action of replevin, brought by the plaintiff in error against the defendant in error for the detention of a quantity of household property, a part of which was exempt from levy and sale on execution. The defendant in error pleaded that he did not detain the goods and chattels in question.

      Tbe case was tried at tbe April term of the late territorial district court for tbe county of Racine, before Miller, J., and under bis charge tbe jury gave a verdict for tbe defendant in error.
    ■ On tbe trial it was proved or admitted, that one Eble bad obtained a judgment against one Sanford, on which was due tbe sum of sixty-six dollars ; that an execution issued upon this judgment was levied upon tbe property in question as tbe property, goods and chattels of Sanford, by tbe defendant in error, who was a constable; that tbe property so levied upon was in tbe possession of tbe defendant in error subsequently to tbe time of' tbe levy, and was demanded by tbe plaintiff in error of tbe defendant in error, and that be refused to deliver it up.
    Tbe plaintiff also produced on tbe trial tbe paper or mortgage mentioned in tbe opinion of tbe court, and proved that tbe same was executed by tbe said Sanford and placed on file in tbe proper office before tbe levy made by tbe defendant in error, and was so on file at tbe time of tbe levy.
    It was also proved or admitted that tbe bill of sale, also described in tbe opinion of tbe court, was executed by Sanford, and tbe property therein mentioned turned out to tbe plaintiff in error, was not taken into permanent possession, but was afterwards retained in possession of said Sanford, and it also appeared that some part of tbe property embraced in tbe respective papers was exempt from levy and sale on execution.
    Tbe charge of tbe judge to tbe jury sufficiently appears from the opinion of the court, as does also tbe exceptions taken thereto by tbe defendant’s counsel.

      W. Bond, for tbe plaintiff in error.

      B. W JEvans, for tbe defendant in error.
   JacksoN, J.

This was an action of replevin, commenced at tbe October term of tbe district court for Racine county, by Thomas D. Bond, the plaintiff in error, against Bpaphro Seymour, defendant in error, a constable of said county, for wrongfully detaining tbe property mentioned in tbe writ of replevin, by virtue of an execution issued from a justice of tbe peace in favor of Nicholas Eble against William G. Sanford. On tbe trial of tbe cause, at tbe April term, 1848, of tbe district court, it was proven that tbe property replevied was in tbe possession of tbe'defendant in error after being taken on execution, and tbat possession of tbe same was demanded by tbe plaintiff and refused by tbe defendant before tbe writ of replevin issued. It is admitted tbat tbe plaintiff offered in evidence on tbe trial a paper writing, containing a list of personal property, to which was append tbe following defeasance :

“ Tbe above is given for tbe security of two notes Thomrn D. Bond bolds against me, dated April 26, 1847. He to take possession at any time be may think bis security requires it.”

This writing, it is also admitted, was executed by Sanford and placed on file in tbe town clerk’s office of Southport before tbe levy made by defendant, and continued on file at the time of tbe levy; tbat a bill of sale was executed by Sanford to tbe plaintiff, purporting to convey tbe same property described in the other instrument, and tbat tbe property mentioned in tbe writ of replevin was turned out to tbe plaintiff under said bill of sale, in tbe presence of witnesses, to secure payment of about $60 ; that tbe property replevied remained in tbe bouse of Sanford after it was so turned out to tbe plaintiff; and tbat it consisted of tbe household furniture of Sanford, and tbat be was in embarrassed circumstances ; tbat some four days after tbe sale to tbe plaintiff, and previous to tbe levy, tbe plaintiff entered tbe bouse of Sanford and took possession of tbe property described in tbe writ and delivered tbe same into tbe possession of Mrs. Sanford, tbe mother of said Sanford, then an occupant of bis house, and requested Mrs. Sanford to take charge of the same for this plaintiff; Mrs. Sanford living at the time with her son, in whose house the property remained; that the levy under said execution was made some two or three days after the conversation between the plaintiff and Mrs. Sanford, and that at the time the said property was delivered to Mrs. Sanford, in the manner mentioned, William G. Sanford was absent from the town of Southport; that part of the property mentioned in said bill of sale consisted of the portraits of Sandtbrd and wife, and that said portraits were levied upon under Ehle’s execution, and that he became the purchaser.

Upon this evidence the court charged the jury as follows : 1. That as there was no covenant of consideration mentioned in said mortgage, it was void, and no property passed to the plaintiff.

2. That without delivery of the property, or change of possession, by said bill of sale no property passed to the plaintiff.

8. That the delivery of the property to plaintiff by Sanford, on the 8th day of May, under said bill of sale, was inoperative and void, the property remaining in the house then occupied by said Sanford.

4. That all the proceedings in the house of said Sanford in reference to the property were fraudulent and void, unless there was an actual removal of the property from the premises, or an actual change of possession.

5. That, under the circumstances, Sanford alone could take advantage of the levy upon exempted property, and that the vendee of Sanford, under said bill of sale and mortgage, could not recover possession of said exempted property from the judgment creditors of Sanford.

To these several instructions of the court the counsel for the plaintiff excepted, and also asked the court to give the jury the following instructions, which were refused :

1. That if the said chattel mortgage was properly executed and placed on file in the town clerk's office, the plaintiff held by paramount title, and could not be molested by the judgment creditors of Sanford.

2. That if the property was delivered to the plaintiff under said bill of sale, and said property was accepted by the plaintiff and by him delivered to one Mrs. Sanford, as plaintiff’s agent, possession by Mrs. Sanford was the possession of the plaintiff, and under the circumstances the plaintiff was excused from absolutely removing the property.

3. That if any portion of the property was exempt by law from execution, that the creditors of Sandford had no right to levy upon the same, and if the remainder did not exceed $50 in value, that was all exempt from execution, and consequently the levy of defendant was illegal.

The jury, under the instructions given by the court, returned a verdict for the defendant for $66.65, the value of the property, and $3.89 damages, with costs of suit, and judgment was rendered accordingly; to reverse which, a writ of error is brought to this court.

Although several important legal questions arise in this cause, yet the disposition to be made of it must mainly depend upon the construction to be given to our statute of frauds. In most of the states of the Union a similar statute exists, under which there have been conflicting adjudications. Not unfrequently a capricious rule of construction has prevailed, which has deprived parties litigant of its intended remedial and protective provisions. The later decisions, however, under the statute, have been more in conformity both with its letter and its spirit. Whether tins statute is founded upon a wise or an unwise policy, it is not the province of courts either to inquire or to decide; but, like all other statutes, it should receive a fair and reasonable construction.

We cannot but regard it as an unwarrantable assumption in courts to attempt, by judicial construction, to impair the force or modify the provisions of an act of the legislature. la reference to the instrument in writing submitted to the jury upon the trial, two questions arise : Is it a bill of sale, or is it a chattel mortgage ¶ If it be a bill of sale, then, under our statute, unless such sale “ be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sold, it shall be presumed to be fraudulent and void as against the creditors of the vendor, or subsequent purchasers, in good faith, and shall be conclusive evidence of fraud, unless it shall be made to appear, on the part of persons claiming under such sale, that the same was made in good faith, and without any intent to defraud such creditors or purchasers. Bev. Stat. 163, § 5.

Under this provision of the statute, it is obvious that while the retaining possession by the vendor of the property sold, raises a presumption of fraud, yet that is a presumption which is susceptible of being rebutted, on the part of the persons claiming under such sale, by evidence that it was made in good faith, and without any fraudulent intent; and that it is the duty of the court to submit the question of fraud to the jury, who are to determine, under all the circumstances of the case, as they shall be disclosed by evidence, whether or not such presumption has been sufficiently rebutted to give a bona fide character to the transaction. 23 Wend. 653; 1 Hill, 438; 26 Wend. 511; 1 Hill, 467.

If the instrument referred to be a chattel mortgage, then, “ unless possession of the mortgaged property be delivered to and retained by the mortgagee, or unless the mortgage be recorded in the office of the register of deeds where the mortgagor resides,” or “ in the office of the town clerk where the mortgagor executing the same resides ; or, in case he is a non-resident of the territory, in the town where the property mortgaged may be at the time of executing the same,” it will be absolutely void as against creditors. Bev. Stat. 164, § 9 ; Laws of 1843, 42, § 25.

If, however, the possession of such mortgaged property be delivered to, or retained by the mortgagee, or if it be recorded or filed in the manner prescribed by our statutes, in case the mortgagor retains possession, then, in either case, such mortgage is prima facie valid ; and it devolves upon the party who seeks to impeach it, on the ground of fraud, to show such fraud affirmatively.

And here, the mortgage having been placed on file, the question of fraud, as in the case of a bill of sale, is one for the jury. Eev. Stat. 164. In either point of view, therefore, whether we regard the instrument offered in evidence upon the trial as a bill of sale, or .as a chattel mortgage, the court clearly erred in not, submitting the question of fraud to the jury.

We are inclined to the opinion, however, that the instrument referred to should be treated as a chattel mortgage.

Again, a part of the property was exempt by law from execution ; and as it was not the subject of levy, it could not be conveyed in fraud of creditors. The charge of the judge, therefore, on this branch of the case, was erroneous, and may have misled the jury. We deem it unnecessary to examine the other grounds of error assigned, as those we have already considered are sufficient to require a reversal of the judgment.

The judgment of the Gourt below is therefore reversed with costs.

Stow, C. J.,

concurred in the reversal of the judgment, on the ground that a part of the property being exempt from execution, was not the subject of' a. fraudulent sale as against judgment creditors; but dissented from the views and principles of the opinion of the court, especially from that part of the opinion which relates to the principle governing and controlling the effect of simple bills of sale; and holding that a bill of sale of chattels without a change of possession, in order to vest an interest therein in the vendee, was determined by the statute to be fraudulent as against creditors, unless evidence was given by the vendee of the bonajides of the transaction, and that he had been unable to discover any evidence given in the case made up, which tended to that result.


text:
    Scrinegrour v. The State. Libby v. The State.
    1. Penalty under dieebrent statutes. — Where an act for the punishment of larceny provided that in cases of simple larceny, not exceeding $100 (without any minimum limitation), the punishment should he imprisonment in the county jail not more than two years, nor less than three months, or a fine not exceeding $800; and by another section, jurisdiction in cases of simple larceny is given to justicés of the peace; where the alleged value of the property stolen does not exceed $20; in all which cases the punishment prescribed was by fine not exceeding $50, or by imprisonment in the county jail for the term of three months: Held, that in cases falling within the latter section, no greater punishment could be inflicted than was prescribed in such section, in whatever court the prosecution might take place.
    2. Same. — Where there are two statutes providing a punishment or penalty for the same act or offense, the one a greater and the other a lesser one, the section of the statute prescribing the major one is to be regarded as abrogated by the one prescribing the minor punishment or penalty.
    (1 Ghand. 48.)
    ERROR to the Circuit Court for Sheboygan County.
    An indictment was found- against each of the plaintiffs in error, in the suits above entitled, for larceny under the fifteenth section of the act of the territorial statutes of Wisconsin, to provide for the punishment of offenses against private property. Ter. Stat. 350. Both defendants were convicted, and by the presiding judge (the chief justice) sen-fenced, iScrmegrour to one, and Libby to two years imprisonment in the county jail of Sheboygan county.
    Each of the defendants brought their writ of error to this court upon the ground, that the sentence or punishment was in derogation of the statute above referred to.
    ' The presiding judge holding that in trials for these offenses, he was invested with judicial powers under the provisions of the fifteenth section of the act referred to, to inflict such punishment as was authorized by that section, when the indictment was found, and tried in his court; and regarding that he was not to be governed by or restricted to the punishment which was prescribed by the sixteenth section of the same act, when the offense w3s prosecuted before a justice of the peace, whose power of punishment was limited to a far less infliction than that provided by the fifteenth section.
    ■ Jas. Holliday, for the defendants,
    argued that the, two sections of the statute were inconsistent with each other; that in a trial had hr the circuit court, the presiding judge had no power to sentence the accused to any greater punishment than was provided by the sixteenth section; and that it was an anomaly in legislation that a statute, conferring upon two distinct tribunals jurisdiction to try an offender for the same crime, the one tribunal having power to punish by a greater, and the other being restricted to a much less infliction ; that in favor of liberty, and the humanity with which penal statutes were to be construed, the lesser punishment provided by the statute was the only one which either court could inflict.

      J. 8. Brown, Attorney-General, argued,
    that notwithstanding the two sections of the statute provided different punishments for the same offense, under the distinct tribunals, in which jurisdiction was vested, yet that the two provisions were not in conflict with each other, but that each court had the power to inflict such punishment as by the statute was vested in fhem respectively; and that by the statute, each tribimal was invested with iurisdiction to punish, commensurate with the extreme jurisdiction conferred. That it might not be wise or judicious, that the jurisdiction of the same matter in one court should be subject to a different rule of action from that prescribed for another court having a coordinate jurisdiction, though not the same rant in judicial importance. But, nevertheless, each tribunal was invested with judicial power to punish to the maximum of the statute, without regard to the functions with which another court was invested, should the trial happen before it.
   Stow, C. J.

These cases involving precisely the same question, and having been argued together, but one decision is necessaiy for both. The plaintiffs in error were severally convicted before me at the September Sheboygan circuit, on separate indictments, of simple larceny, in stealing property of less value than twenty dollars ; and were severally sentenced, Scrinegrour to one, and lobby to two years imprisonment in the county jail. They were, as appeared very clearly by the evidence, both cases of great aggravation ; and I felt it my duty to make a severe example, and accordingly imposed on one the highest punishment allowed by the fifteenth section of the act under which they were convicted, and on the other, who was already a states prison convict, one year’s imprisonment. On a careful examination of the different provisions of the statute, the court is of opinion that these judgments are erroneous ; and in this opinion I concur. By the fifteenth section of the “ Act for the punishment of offenses against private property ” (Revised Statutes, 350), it is provided, that in cases of simple larceny, not exceeding one hundred dollars (without any minimum limitation), the punishment shall be imprisonment in the county jail not more than two years, nor less than three months; or a fine not exceeding three hundred dollars : thus leaving a very wide range for the discretion of the court, to be exercised according to the circumstances of the particular case — the age, character, etc., of the offender: Were this all the provision on the subject, a doubt could not be raised. But by the following sixteenth section of the same act, concurrent jurisdiction with the circuit court is given to justices of the peace in cases of simple larceny, when the alleged value of the property stolen does not exceed twenty dollars, “in"all which cases, the punishment shall be by fine not exceeding fifty dollars, or by imprisonment in the county jail for the term of three months.” While it can hardly be supposed that the legislature, in giving a certain limited concurrent authority to a justice, intended thereby to take away the before expressly granted authority of a superior court of record, yet the statute may be so construed, and in favor of personal liberty, we so hold. We think there is nothing in the argument, that by a different construction, a criminal might be subjected to different degrees of punishment for the same offense, as he might happen to be tried in different courts ; such cases are not uncommon.

The judgments are reversed, and the prisoners having been confined already more than three months, are to be discharged.


author: Wi-nTON, J.

text:
    Whitney v. Powell.
    1. Adverse possession. — The question of adverse possession is one of fact to be submitted to and found by the jury, under proper instructions from the court.
    2. Deed' — adverse possession. — A deed of conveyance of lands, adversley held at the time of its execution, is void at common law.
    (1 Ghana. 52.)
    ERROR to the Chcuit Court for Sheboygan County.
    This was an action of ejectment, brought by the plaintiff in error against the defendant in error, for the recovery of the possesion of lot number one hundred and eleven, in Ellis’ addition to tbe village of Sheboygan, and was tried at the September term of the Sheboygan circuit court, in 1848.
    The plaintiff in error, to maintain the issue on Ms part, showed title in Mmself, under a grant from the United States, by a deed executed to Mm by one Ellis, bearing date on the 8th day of June, in the year 1846, and wMch was recorded on the 10th day of December, m the same year, and thereupon rested.
    The defendant in error, m his defense, proved that he took possession of the lot m question on the 1st day of December, in the year 1844, and had continued in actual and peaceable possession of said lot from that time, claiming title to the same up to the time of the commencement of tMs suit; and that his claim of title consisted of, and was asserted under, a quit-claim deed of the premises from one Henry Conklmg, bearing date the 1st day of December, 1844, and recorded the same day. The defendant in error here rested.
    The circuit judge charged the jury that the defendant in error, being in possession of the lot, was constructive notice to the plaintiff m error without actual notice, and that the deed from Ellis to the plamtiff in error was void, because the defendant in error was m possession of the premises.
    Verdict and judgment for the defendant, and the plaintiff brought a writ of error.

      F. Randall, for the plaintiff m error,
    made the followmg points, and cited, under them, the authorities noted.
    1. The possession of the defendant in error is, by law, deemed to be under, and in subordination to, the title of the plaintiff in error. Rev. Stat. 259, § 6.
    2. Adverse possession is never to be presumed, but must be made out by strict proof. 8 Johns. 220 ; 9 id. 166 ; 12 id. 368 ; 2 Aiken, 112 ; 2 U. S. Dig. 134, § 378 ; 3 Johns. Cas. 124 ; 4 Hill, 279-80.
    3. Whether the possession of the defendant in error was adverse or not, was a matter of fact for the jury, under the instruction of the court, as to what constitutes an adverse possession. 2 Johns. 102 ; 9 Cow. 576 ; 13 Johns. 495.
    4. To constitute an adverse possession, the possession must be under a bona fide claim of title, and by color of title. 8 Cow. 598, 613 ; 5 id. 346 ; 9 Wend. 516 ; 5 id. 532.
    5. The facts in this case do not show color of title in the defendant in error, nor a bona fide claim of title. 5 Cow. 598 ; id. 346 ; 5 Wend. 532 ; 1 Cow. 613 ; 14 Johns. 193 ; Jac. Law Die., title, Release, 1; 7 Mass. 381; 8 Pick. 143 ; 5 Paige, 599 ; 11 Mass. 222 ; 4 id. 18 ; 3 Johns. 363 ; 7 Hill, 487.
    6. The decisions in New York and other states, that a conveyance of land held adversely is void, are not applicable here. We have no statute making them void, nor has the common law been adopted here.
    The common law of England is not to be taken in all respects to be that of America. 2 Peters, 144, 658. The policy in which the rule of the common law is founded is inapplicable. 4 Kent, 447 ; 20 Wend. 221; 3 Cow. 644; 4 Wend. 306 ; 3 Coke, 425, 426.

      Jas. Holliday, in the absence of the attorney of the defendant in error,
    submitted to the court a brief in his behalf, but did not assume to make a formal argument.
   Wi-nTON, J.

The only question arising in this case is, whether the instructions given by the judge to the jury were correct.

The action was ejectment, and the bill of exceptions shows that the plaintiff, to establish his title to the land, showed a patent from the United States to Albert G. Ellis, and a deed from Ellis to him; the deed was executed on the 8th day of June, 1846, and recorded on the 10th day of December, in the same year.

The defendant showed that he took possession of the land, claiming title, on the 1st day of December, 1844, and that he continued in possession, actual and peaceable, from that time, claiming title to the time of the commencement of the suit; and that his claim of title was made under a quit-claim deed from Henry Colliding, bearing date the 1st day of December, 1844, and recorded on the same day. The judge, thereupon, charged the jury that the defendant being in possession of the lot, it was constructive notice to the plaintiff, without actual notice; and that the deed from Ellis to Whitney was void, because the defendant was in possession of the premises. The jury found a verdict for the defendant, upon which the court rendered a judgment.

The errors assigned are, that the judge erred in charging the jury that the conveyance from Ellis to the plaintiff was void; also in not leaving the question of adverse possession to the jury as a question of fact; and also that the court rendered a wrong judgment.

The first error assigned brings before the court a very important question, and one which cannot be solved without some difficulty. In many of the states no such difficulty exists, as conveyances of this description are expressly forbidden by statutes which seem to re-enact, in a modified form, the statute of 32 Hen. VID, ch. 9, against purchasing or selling pretended titles. By that statute, the seller of land forfeited the whole value of the land attempted to be sold ; and the purchaser also, if he purchased knowingly, unless the former had possession of the land at the time of the convey-anee. 4 Kent’s Com. 447.

But it is contended by the plaintiff in error, that in this state, where there is no statute in existence against such conveyances, they may be executed, and will have the effect to .convejr to the purchaser the title which the seller has to the land at the time the conveyance is executed. If conveyances of this description were forbidden by statute alone, this argument would be conclusive ; but the statute of 32 Hen. VIII, above alluded to, was passed in affirmance of the common law, and made no alteration in it except that of adding a new penalty. Co. Litt. 369. Indeed, it seems that the whole policy of the common law forbade conveyances of land unless the grantor had in him, at the time, a right of possession. 4 Kent’s Com. 447.

In Massachusetts and Indiana, where such conveyances are not forbidden by statute, they are held to be void by common law. Brimley v. Whiting, 5 Pick. 348; Fite v. Doe, 1 Blackf. 127. And I see no reason why such should not be the rule here.

The bill of exceptions shows that, at the time the plaintiff obtained his deed from Ellis, the defendant was in possession, claiming title under his deed from Conlding, and it must follow that his possession was adverse and operated as a dis-seizin of Ellis, and rendered his deed to the plaintiff void, if the defendant acted in good faith and believed his title was valid. Livingston v. Peru Iron Co. 9 Wend. 511.

It was contended, in the argument for the plaintiff in error, that the statute of this state (Ter. Stat. 259, § 6), would have the effect to entitle the plaintiff to recover, for the reason that the possession of the defendant had not continued for twenty years.

It is manifest that this section cannot have the effect contended for, if the deed from Ellis to plaintiff is void, as it only enables the party, who establishes a legal title to the premises, to recover against the person in possession, unless his possession has continued for twenty years.

But we are satisfied that, in one respect, the charge of the judge was incorrect, and that, for this reason, the judgment must be reversed. The jury were instructed that the deed from Ellis to the plaintiff was void ; this was probably the case, but if so, it must have been for the reason that the possession of the defendant, at the time it was executed, was adverse ; and in order to constitute an adverse possession, the defendant must have acted in good faith; he must have believed that the title he acquired by his deed from Colliding' was valid. La Frombois v. Jackson, 8 Cow. 595. And this should have been left to the juiy. The judgment of the circuit court of Sheboygan county is reversed with costs.

Judgment reversed.


author: LaRRABee, J.

text:
    Phillips v. Geesland. Same v. Same.
    1. Cjsktiokaki. — Upon eertiomri to a jiistice of the peace, under the territorial statute, the district court had no right to render judgment “ as the very right of the matter appeared ” before the justice by the evidence returned, but could only reverse or affirm the judgment. But see Bracken v. Preston, 1 Pinney, 369, as to cases of forcible entry and unlawful detainer.
    (1 Ghana. 57.)
    ERROR to the late District Court for La Fayette County.
    Pi each of these cases, the plaintiff in his suit before the justice obtained judgment for nominal damages, and on cer-tiorari, brought to the district court, the court reversed the judgments at one term, and at another and subsequent one, assessed the damages of the plaintiff at a sum far exceeding the sum awarded by. the justice, and upon the evidence contained in' the return made by the justice ; upon the principle that he had the authority to give judgment “ as the very right of the matter appeared” from the return of the justice.
    Both causes were submitted to this court on the same argument.

      J. H. Knvwlton, for plaintiff in error.

      Oulver, for defendant in error.
   LaRRABee, J.

Phillips recovered judgment for nominal damages and costs before the justice, in replevin, for a quantity of lead ore. The cause was afterwards brought to tbe La Fayette district court, where, at the September term, 1847, this judgment was reversed. Whereupon, the then plaintiffs in error moved that judgment be rendered as the “ very right of the matter appeared.” This motion was continued for argument at the next term, when judgment was rendered for the plaintiff for $37.00, the value of the ore as proved before the justice, and costs of suit.

The record .shows two judgments in the district court; one of reversal at the first term, and one for damages at the second. This is clearly wrong ; the court undoubtedly had power to set aside the first judgment upon motion, but no power to render a new judgment while the first remained. The motion was for a new judgment and a different one, and the record shows the palpaple inconsistency of two different and distinct final judgments in the same cause.

The courts of New York, under a statute identical with ours, have uniformly confined their power to a simple reversal or affirmance of the judgment below; or in some cases, reversed in part only; but there, the jurisdiction of the justice does not extend to the action of replevin, and it is contended that in this action, under our statute, power must 'of necessity be given to the district court to render judgment as the “ very right of the matter appears.” That this would be a salutary power there can be no doubt; but, upon a careful consideration of the statute, we are convinced that no such power exists. The judgment must be either an affirmance or reversal, or a reversal in part. The want of this power undoubtedly operates in many cases as a denial of justice, and in this case the judgment of the district court was, no doubt, in accordance with the right of the matter.

The judgment of the district court for damages must be reversed, with the costs in this court, and the judgment of the court reversing the judgment of the justice must be affirmed.


author: Jackson, J.

text:
    Stow v. Parks.
    1. Pleading-. — bankrupt’s discharge. — In pleading a discharge under the bankrupt law, it is necessary to set out all the facts necessary to confer jurisdiction to grant it, and these allegations being sustained, the discharge will be held valid, unless impeached for fraud.
    2. Same. — A plea of discharge under the bankrupt law is good without alleging that the debt in question was not contracted in a fiduciary capacity; that matter being in avoidance of the plea and proper matter for replication.
    3. Bankrupt law. — The bankrupt act of 1841 was operative and had equal effect in the territories as in the States, notwithstanding the provision of the ordinance of 1787, which provides, that no law ought ever to be made or have force in the said territory that shall in any manner whatever interfere with or affect private contracts or engagements, bona fide made, and without fraud, previously formed.
    (1 Ghand. 60.)
    ERROR to the late District Court for Milwaukee County. This was an action of assumpsit. The defendant pleaded in bar a discharge under the bankrupt act of congress, passed in 1841. To this plea there was a demurrer. There was also pleaded, by the defendant, the statute of limitations, which was withdrawn, and the cause was heard before the district court, on the demurrer, which was sustained, and judgment was given for the defendant, and the plaintiff brought his writ of error. .
    . The case is fully stated in the opinion of the court.

      Jenkins & Orawforcl, for plaintiff in error.

      A. Finch, for defendant in error.
   Jackson, J.

This was an action of assumpsit, brought by Alexander W. Stow, plaintiff in error, against Rufus Paries, defendant in error, at the June term, 1846, of the district court for Milwaukee county, to recover of the said defendant the sum of $1,500.

The declaration of the plaintiff contained the usual money counts, to which the defendant pleaded the general issue, together with two special pleas in bar : one alleging ancl setting forth the. discharge of the said defendant under the act of congress, entitled “ An act to establish a uniform system of bankruptcy throughout the United States,” passed August 19, 1841; and the other, the plea of the statute of limitations. To the first of these special pleas, a demurrer was filed, in which several special causes of demurrer were alleged, and to the second a replication. The cause was continued until the November term of said court, when the said defendant withdrew his plea of the statute of limitations, and the case was argued upon the demurrer of the plaintiif to the defendant’s special plea of discharge in bankruptcy ; which demurrer was overruled by the court, and judgment entered for the defendant upon the same, with costs. A writ of error was brought to reverse this judgment.

The grounds of error alleged are of a two-fold character : first, those of form ; and, secondly, those of substance. The former relate to the manner in which the plea of discharge is drawn, and the latter to the sufficiency of the discharge itself to bar the plaintiff’s action.

We propose to consider these different grounds of error assigned in the order in which they are presented.

1. Is the defendant’s plea so defectively framed as to be bad upon special demurrer ?

The first and most important inquiry upon this branch of the cause is, has the defendant, in his plea of discharge, set forth such facts as gave to the court, from which he obtained his discharge, jurisdiction ? 6 Hill, 607. If the jurisdiction clearly appears, then all such facts as were necessary to be proved in order to obtain his discharge, will be presumed to have been proved, and it was unnecessary for the defendant to have averred them specifically in his plea. Price v. Bray, 1 Pa. L. J. 465.

It is laid down by the supreme court of New Jersey, in the case of Price v. Bray, above cited, and in which the case of Sacket v. Andros, 5 Hill, 128; and of Stephens v. Ely, 6 id. 609, are referred to, “ that as a question of pleading, the facts which give the jurisdiction must he averred. In the case of plea of bankruptcy, it is the filing of a petition by a bankrupt, a resident of the district, to be declared a bankrupt. The rule stands upon sound reason. It is not every bankrupt that the district court is authorized to discharge from his debts, but such debtor as has first applied to be declared a bankrupt. The plea should, therefore, aver that such a petition, to be declared a bankrupt, was filed ; that thereupon such proceedings were had, that the debtor was declared a bankrupt, etc., and that, by the order of the court, he had been discharged, etc.; and the jurisdiction thus appearing, all such facts will be presumed as were necessary to authorize the decree. Such discharge thus pleaded, will be a complete bar to all debts provable under the act, unless impeached for fraud.”

Tested by this standard, the plea of the defendant is undoubtedly good, and would not be liable to either of the objections taken by the plaintiff in error upon special demurrer.

It is further insisted, however, that the plea is defective in not averring that the “ plaintiff’s demand did not arise in consequence of the defalcation of the defendant in a fiduciary character.” Now, the authorities are in conflict as to the necessity of such an averment. It is conceeded that, by the late bankrupt act, the courts of the United States, taking cognizance of cases in bankruptcy, had no- jurisdiction over fiduciary debts. In the case of Chapman v. Forsyth et al. 2 How. 208, Mr. Justice McLean, in delivering the opinion of the supreme court of the United States, remarks: “If fiduciary debts are not within the act, a discharge can in no respect affect the interest of the fiduciary creditor.' Without his consent, it is clear that the bankrupt court can take no jurisdiction of his debt. And although the bankrupt may include the debt in his schedule, and the discharge may be general, yet as the law gave the court no jurisdiction over the debt, it is not discharged.” It is exceedingly doubtfut, therefore, whether, under a fair construction of the bankrupt act of 1841, any such averment as is insisted on by the plaintiff in error is requisite in a plea of discharge.

The more correct practice would seem to be, if the plaintiff sought to impeach the discharge upon the ground of the fiduciary character of the debt sued upon, to allege that fact in his replication to the defendant’s plea, and by an issue thus joined, test the validity of his discharge. The plea hr question, however, is not, in reality, hable to this objection. It does, argumentatively, at least, contain such an averment; and although, if such an averment were necessary, this plea would be bad for argumentativeness if specially demurred to, yet, as no such special ground of demurrer is alleged, the plaintiff cannot now avail himself of such an objection. 5 Hill, 319. Having thus disposed of those grounds of error alleged, which relate to the pleadings simply, the next and most important error assigned remains to be considered. It is, that “ the discharge having been obtained by the defendant upon his own application, and without the assent of the plaintiff, and granted within the territory of Wisconsin, is void, being in violation of the ordinance of July, 1787.”

Were the question of the constitutionality of the act of congress of 1841, entitled “An act to estabh'sh a uniform system of bankruptcy throughout the United States,” now for the first time raised, it might, perhaps, involve considerar ations of such magnitude as to demand an elaborate investigation by this court.

The highest judicial tribunal in the nation has, however, pronounced the act to be constitutional. 1 How. 277; 2 id. 227. And no principle is better established, than that the exposition of the constitution, given by. the supreme court of the United States, is conclusive on the state courts. 8 Pick. 196; 3 Marsh, 423; 6 Conn. 493; 6 Binn, 272; 3 id. 84, 85.

That the act of congress, of 1841, was designed to have effect equally as well in all the territories of the United States as in the several states, cannot be questioned. In the first section of the act it is expressly declared that “ all persons whatsoever, residing in any state, district or territory of the United States, owing debts, which shall not have been created in consequence of a defalcation as a public officer ; or as an executor, administrator, guardian or trustee, or while acting in any other fiduciary capacity, who shall, by petition, sotting forth to the best of his knowledge and belief, a list of Ins or their creditors, their respective places of residence and the amount due to each, together with an accurate inventory of his or their property, rights and credits of every name, land and description, and the location and situation of each and every parcel and portion thereof, verified by oath, or if conscientiously scrupulous of taking an oath, by solemn affirmation, apply to the proper comt, as hereinafter mentioned, for the benefit of this act, and therein declare themselves to be unable to meet them debts and engagements, shall be deemed bankrupts within the purview of this act, and may be so declared accordingly by a decree of such court.”

Nothing, therefore, can be more direct and explicit than the extension of the benefits of the provisions of the law to the people alike of all the territories, as well as the states, and embracing “ all persons whatsoever,” under the limitations and restrictions only as to debts of a fiduciary character.

It is contended, however, in argument, that the law of 1841 is in violation of the ordinance of 1787 ; and, although it may be valid and operative where the provisions of the ordinance do not extend, yet it could not have had effect in the territory of Wisconsin, because to give it such effect would be a violation of the ordinance.

Now this assumes two points : first, that the act of congress is in violation of the ordinance; and, secondly, that the ordinance is paramount to the authority of the constitution of tbe United States, and that in one portion of the Federal Union the constitution is the supreme law, and in another that its authority is suspended, and must yield to the higher authority of the ordinance. * 1

Such a construction, if it were to prevail, would present the extraordinary anomaly of conferring upon the citizens of Pennsylvania or Massachusetts, for instance, under a law of congress designed to be uniform in its operation throughout the United States, privileges which, under the same law, would be withheld from the citizens of Wisconsin; and, although for a debt contracted in Massachusetts, a citizen of Pennsylvania might, in that state, obtain a discharge in the United States court, under a law of congress, yet, if he were to remove to Wisconsin, he would be prohibited from obtaining, under the same law, in the same court, a discharge from the same debt.

Such a construed on, while it does not appear to be sustained by reason, would lead to results obviously subversive of every principle of justice.

And if it were sanctioned, !t then,” indeed, in the language of Mr. Justice Stoey, “ there would be, at no time, in the United States, the same constitution in operation over the whole people.” Surely, such a state of things was never contemplated by the framers either of the ordinance or of the constitution ; and we do not find that it has ever been sanctioned by any authoritative adjudications, from the judicial tribunals of the land. We think, however, that no clause oi provision of the ordinance will warrant such a construction.

The provision of the ordinance relied on to sustain the demurrer, is that contained 'in the last clause of the second article, which is in the following words: “ And in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made or have force, in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide made, and without fraud previously formed.” Can it be supposed that this clause in the ordinance, an instrument adopted almost contemporaneous with the constitution, will admit of such a construction as to defeat or render inoperative that plain and express provision of the constitution which authorizes congress “ to establish uniform laws on the subject of bankruptcy throughout the United States ? ” '

It would clearly seem to be the more rational construction of this clause, to restrict its application to the local legislation of ■ the states and territories,, embraced within the old northwestern territory, for which the ordinance was framed, and not to extend it to the general legislation of congress, within the conceded powers conferred by the constitution. This view of it appears to be in harmony with the action both of the legislative and the judicial departments of the general government.

As to the second point impliedly, at least, assumed in the argument, that the authority of the constitution must yield to the higher authority of the ordinance, we think it is unsus-tained either by the course of national legislation, or by the adjudications of our national tribunals. On the contrary, in the very year of the adoption of the federal constitution, the congress of the United States, acting under it, passed “An act to provide for the territory northwest of the river Ohio,” in the preamble to which it is declared, “in order that the ordinance of the United States for the government of the territory northwest of the river Ohio, may continue to have full effect, it is requisite that certain provisions should be made so as to adapt the same to- the present constitution of the United States.” *

From this act of congress, passed at that early period when the intention of the framers of the constitution could scarcely have been mistaken, it is obvious that the ordinance was not at that time regarded as superseding the authority of the constitution ; but that it was deemed necessary, in order that it might “ continue to have full effect, that certain provisions should be made so as to adapt the same to the present constitution of the United States.” This view of the question appears to us to be in accordance with a fair construction of the ordinance, and with reason and sound policy. At all events, in a case at best admitting of such strong doubt as to the application of the inhibitory clause in the ordinance, we must be governed by the established rule of construction in similar cases, and resolve that doubt in favor of the constitutionality of the law (1 Cow. 550; 7 Pick. 415-474; 12 Serg. & R. 380; 2 Pet. 552; 12 Wheat. 270; 3 Dall. 386), and give it effect within this state ; where, indeed, for several years its validity and binding force have been expressly recognized and sanctioned by our territorial supreme court, in entertaining jurisdiction in oases of bankruptcy, in granting discharges, and in holding repeated terms for the sole purpose of carrying out the provisions of the act of congress.

Upon a careful examination, therefore, of the grounds of error assigned in this cause, it is the opinion of this court that the judgment of the court below should be affirmed.

It is accordingly affirmed, with costs.


author: JacksoN, J.

text:
    Elderkin v. Spurbeck.
    1. Jurisdiction — justice’s court — costs.—A justice of the peace has no jurisdiction where the plaintiff claims a sum beyond the authority of the justice to render judgment; and where, in such case, for want of jurisdiction, he dismisses the cause, it is error for him to award costs against the plaintiff. 1 Wis. 511; 4 id. 188, 285. But as to appeals, see Paine v. Chase, 14 Wis. 653.
    (1 Chand. 69.)
    ERROR to the late District Court for 'Walworth County.
    This action was commenced by the plaintiff in error against the defendant in error, before a justice of Walworth county; and the plaintiff below having declared for, and claimed of the defendant below, a sum superior to the amount for which the justice had jurisdiction to render judgment, on a motion for the dismissal of the cause, the justice granted it.
    On certiorari brought to the late district court the judgment of the justice was reversed, and upon such reversal a writ of error was brought.
    The cause was submitted without argument.

      E. Elderlcin, for plaintiff in error.

      Kelsey & Gale, for defendant in error.
   JacksoN, J.

There are but two questions that properly arise in this cause. First, had the justice before whom the cause was commenced any jurisdiction ? Secondly, conceding the justice had no jurisdiction, were costs properly awarded against the plaintiff?

The first question can readily be answered by reference to the declaration; from which it is manifest that the plaintiff seeks a recovery for the price of a horse valued at seventy-three dollars, and for the expenses incurred in his keeping, etc., amounting to the further sum of twenty-five dollars. It is clear, therefore, that the justice had no jurisdiction, the “ debt or the sum claimed” by the defendant exceeding fifty dollars.

The second question, we think, is equally free from doubt. It is a well-settled principle, that where an action is dismissed for want of jurisdiction in the court, whether it be a court of limited or superior jurisdiction, no costs can properly be awarded. 2 Mass. 207.

And although the justice before whom this cause was brought, very properly dismissed it for want of jurisdiction, yet, as the want of jurisdiction deprived him of the power to award judgment for costs against the plaintiff, the district court, to which this cause was brought up by certiorari, should for this reason have reversed and not affirmed the judgment of the justice.

The judgment of the district court is therefore reversed, •with costs.