author: Jackson, J.

text:
    Zeig vs. Ort and another.
    1. Siandek Plbadiug.— Slanderous words should be set out in the language in which they were uttered, with an English translation of their import, otherwise the variance will he fatal and a nonsuit will he granted.
    2. Same. — In an action for slander the declaration should set out the words that are material to support the action and the proof must substan tially conform to the allegations, or there will be a fatal variance; but it is not necessary to allege or prove all the words used, if the words alleged and proved are actionable.-
    ERROR to the Circuit Court for Grant County. ■
    This was an action of slander brought ■ by the defendants in error against the plaintiff in error, for slanderous words spoken, and published of and to the plaintiff’s wife.
    On the trial below it appeared in evidence that the words charged in the declaration were spoken in the German language. The declaration set forth the words in English. It was proved that the words spoken by the defendant were understood by the persons who were present at the time they were uttered.
    After the plaintiffs had closed the evidence in the case, the defendant moved for a nonsuit, on the ground of variance between the declaration and the evidence, in this, that the words, though spoken in the German language, should have been set forth in that language, and accompanied with an English translation ; and that there should have been an averment in the declaration that those who heard the words understood their import. This motion was overruled, and the plaintiff’s counsel excepted. No evidence was offered by the defendant; and the jury returned a verdict for five hundred dollars damages.
    After verdict, the defendant’s counsel moved the court upon the points before raised for a new trial, and also in arrest of judgment, which motions were overruled.

      Cole & Biddlecome, for plaintiff in error:
    1. The words spoken in the German language should have been set out in the declaration in that language, accompanied with an English translation, and it should have been averred that the hearers understood their import. Starkie on Slander, 267, 268; Cooke on Defamation, 87, 88; 6 Term, 162 ; 3 Maulé & Sel., 110 ; 3 Wend., 394; 3 Watts, 28 ; 6 Cowen, 76 ; 5 id., 513 ; 8 Mass., 122 ; 1 Binn., 393; Cro. Eliz., 496, 865 ; Starkie on Slander, 265.

      Ben. C. Eastman, for defendant in error,
    argued that the testimony on which the action was founded, was admitted without objection, and that no exception could now be maintained.-
   Jackson, J.

Two questions arise in this cause.

1st Was there a material variance between the plaintiff’s declaration and his proofs ?

2d. Was the declaration itself substantially defective ?

Both of these points must be settled by the weight of authority; first, as to the question of variance. On this point there can be no question, that since the leading case of Zendbio v. Axtel, 6 Term, 162, the uniform current of authority has been that where the slanderous words were spoken in a foreign language, they should be set out in the declaration in the original language, with an English translation, showing their application to the plaintiff. 1 Starkie on Slander, 324; 2 Phillips’ Ev., 236; Wormouth v. Oramer, 3 Wend., 394.

The case of the Queen v. Dr. Drake, in which a contrary doctrine was impliedly held by Holt, C. J., has been overruled. 1 Starkie on Slander, 323.

In the case at bar, the slanderous words alleged to have been spoken were set forth ’ in the declaration in the English language. It was proven by all the witnesses on the trial, at the circuit, that the words were spoken in the. Hermán language. Here, according to the authorities which we have cited, was a fatal variance between- the declaration and the proofs. The case of Wormouth v. Cramer, 3 Wend., 394, is an authority directly in point. In that case the words were set forth in the declaration in' the English, and they were proved to have been spoken in the German language. A nonsuit was granted by the judge who tried the cause, on motion of the defendant’s counsel, on the ground of variance. This ruling was affirmed by the supreme court of New York, and is in conformity both with the English and American decisions.

2d. Is the declaration defective in not averring that those who heard the slanderous words understood them? We have no doubt that such an averment is necessary where the words are spoken in a foreign language. Mr. Starkie, in his treatise on the law of slander, (vol. 1, p. 322), upon the subject, holds this language: “If the words be spoken in a foreign language, an averment is necessary to show that the hearers understood them ; and even where Welsh words were averred to have been spoken in Monmouthshire, which was once part of Wales, judgment was arrested after verdict for the plaintiff, because it was not averred that they were spoken before Welshmen, or those who understood the Welsh tongue.”

The rule as laid down by Mr. Starkie is now well settled. Wormouth v. Cramer, 3 Wend., 394; 2 Greenl. Ev., 397.

Another point has been raised in Ihis cause of great importance, involving, in cases of oral slander, both the manner of pleading and the mode of proof. It is, first, whether the declaration should set out the precise words themselves, or whether it will be sufficient to set out the substance of them ; and second, if the words themselves -be set out, whether it will be sufficient upon the trial to prove the substance of them only? Both of these questions have given rise to conflicting-decisions. It was held by Lord Hakdwicke in the case of Nelson v. Dinie, which is cited with approbation by Parker, Justice, in Nye v. Otis, 8 Mass., 126, that “in an action for words, you may either lay the particular words spoken, or set out the substance of them; and if the substance, as that the defendant charged the plaintiff with such or such a crime, it is sufficient to prove the substance of the words; but whére the 'very words are laid, they must be proved as laid.”

In the case of Fox v. Vanderdeck, 5 Cowen, 513, it is held, in accordance with the doctrine laid down in Cooke v. Cox, 3 M. and S., 110, that the words in which the slander was conveyed must be stated in the' .declaration and substantially proved. In Cooke v. Cox, the court, in referring to the language attributed to Lord Hardwicke in Nelson v. Dinie, observe, that what was supposed to have been said by Lord Hard-wicke, was founded in a mistake.

In Miller v. Miller, 8 Johns., 59, the court recognize the doctrine laid down in Butler’s Nisi Prius, that it is sufficient to prove the substance of the words and the sense, as well as manner of speaking them. This doctrine must, however, be received with some qualification, if not regarded as virtually overruled. 2 Phillips’ Ev., 236, note 4. Mr. Starkie (Starkie on Slander, vol. 2, p. 327,) says, “ in case of words spoken as well as written, it has been held to be necessary to set out the words themselves.” And that, in oral slander, although all the words need not be, yet the material words must be proved as laid. It is not sufficient to prove equivalent words of slander. The same rule is recognized by Mr. Phillips (Phillips’ Ev., 236); where, however, all the words, as laid, constitute but one charge, the whole must be proved. 2 Starkie on Slander, 234; 2 Phillips’ Ev., 236; 2 Greenl. Ev., 393.

The true rule then, in cases of oral as well as of written slander, both upon the weight of authority and upon sound principles of reasoning, we hold to be this: That the declaration should set out the words themselves in which the slander was conveyed, and that the material words must be proved as laid. Cooke v. Cox, 3 M. & S., 110; Fox v. Vanderdeck, 5 Cow., 513; Nestle v. Van Slyck, 2 Hill, 287; 12 Serg. & R., 427; 2 Phillips’ Ev., 236, note 4.

Judgment reversed.


source: Caselaw Access Project

author: Larrabee, J.

license: Public Domain

text:
    Reynolds vs. Carpenter.
    Statute oe Frauds.— A promise to pay the debt of another is void unless in writing, expressing the consideration upon which the promise is founded. There must be some new consideration to support a promise made by a third person to pay the preexisting debt of another in order to take it out of the statute of frauds.

      ERROR to the Circuit Court for Columbia County.
    This was an action of assumpsit, originally commenced in a justice’s court in Columbia county, by the defendant in error. The declaration was founded upon the naked promise of the plaintiff in error, to the defendant in error, for certain board bills of various persons, to various amounts, due to him, but for which the plaintiff in error was not indebted, and including several bills against some of those persons, for horse keeping, etc., in the whole amounting to $27.03. The justice rendered a judgment in favor of the plaintiff in error. From this judgment he appealed to the circuit court for Columbia county, and the cause was tried in that court. On the trial, the plaintiff introduced evidence and offered to prove a verbal agreement on the part of the defendant below, with the plaintiff below, to assume and pay to the plaintiff, the amount of certain board bills due the plaintiff from several persons, to whom defendant was not indebted, and who were seeking employment from the defendant, on the canal across the Portage at Fort Winnebago, in consideration that these men, the debtors of the plaintiff, would go to work for him, the defendant. To this proof the plaintiff in error objected on the ground that the undertaking was within the statute of frauds and void. The court overruled the objection and the plaintiff excepted to such ruling, and the evidence was given. After the evidence was closed, the counsel for the plaintiff in error requested the judge to instruct the jury, that to entitle the defendant in error to recover any amount assumed and promised to be paid by the plaintiff in error, for other persons, such promise must have been shown to have been in writing, expressing the consideration therefor and signed by the plaintiff in error. The court declined so to charge the jury, and the jury found in favor of the defendant in error, upon which he had judgment.

      A. L. Collins and Chauncey Abbott, for plaintiff in error insisted,
    that his verbal promise to pay the demand of the defendant in error, not having been in writing, only in parol, without any consideration passing between the parties, was void under the statute of frauds. Statutes of Wisconsin, 388; Smith v. Ives, 15 Wend., 182 ; Packer v. Wilson, 15 id., 343 ; 20 id., 201; Larson v. Wyman, 14 id., 246 ; Simpson v. Patton, 4 Johns., 422; Jaclcson v. Bayner, 12 id., 291; 2 Term, 18; Barker v. Bucklin, 2 Denio, 54.
    2. That an original promise to pay the debt of another is ineffectual, unless some consideration passes between the parties thereto; and to that point cited 8 Johns., 29; 4 Cow., 432; Chitty on Cont., 509, 510; 13 Wend., 114.

      Botkin & Knapp, for the defendant in error,
    claimed that the exceptions taken did not set out with sufficient distinctness the evidence in the case, so that this court could determine whether the instructions of the judge, or his refusal to instruct the jury, were such as to 'authorize an interference with the finding of the jury, and to this point cited the cases of Gale v. Pierson, 6 Miss., 253; Hamilton v. Moore, 4 Watts & Serg., 570; Hato-thorn v. Muldrow, 8 Miss., 617 ; Ingram v. The State, 7 id., 253 ; Gamble v. Hamilton, 7 id., 496.
   Larrabee, J.

It is clear from the authorities introduced by the counsel for the plaintiff in error, that the ruling of the court below, admitting the proffered evidence of the defendant in error, under the objection taken' thereto, was erroneous. There can be no doubt but that the case at bar was within the statute of frauds, and that the action could not be' maintained under the proof made.

.Judgment reversed.


author: Howe, J.

text:
    Rogers vs. Cross.
    1. Equity — Injunction.—An injunction will not be granted to restrain a party from proceeding in an action at law unless it is made to appear that by reason of some mistake, fraud or accident, it is against conscience for him to prosecute it, and that against it a defense cannot •well be made according to the rules which govern courts of law. It will not be granted in a case where it is manifest from the bill that the complainant has a complete defense at law.
    2. Evidence. — The loss or destruction of a deed can be proven as well in a court of law as of equity.
    3. Estoppel. — Where S. toofe from N. a conveyance of premises by way ot mortgage, which he assigned to a third party in good faith, who foreclosed it: Held, that S., his representatives and privies, are estopped both in equity and at law from setting up a prior and conflicting title in S. to defeat the mortgage so negotiated and foreclosed.
    (3 Chand., 34.)
    APPEAL from the Circuit Court for Milwaukee, County.
    Rogers, the appellant, filed his bill in the court below against Cross, respondent, and others, to whom he had sold the premises in question, and to whom he had executed deeds of warranty and seizin ; and setting forth that his grantor was well seized of the premises in question; that appellant derived title to the lands in question by conveyances made to him ; but that a deed of a portion of the premises given to a former grantee had not been recorded; that the grantor in such deed was dead, and that such deed could not be found; but that the title was in the grantor or his assigns of whom he purchased and from whom the conveyance to him was made; that Spence, said deceased grantor, conveyed such portion of said premises to one Norton; that Norton executed to Spence a mortgage for the purchase money, and he assigned the same to one Ogden, who foreclosed it and purchased the premises at the sale, and Ogden’s title so acquired had been conveyed to complainant.
    That through the loss of this deed of conveyance to an intermediate grantee, a defect existed in the complainant’s title to a fourth part of the premises. That complainant had given deeds with covenants of warranty of parts of said premises; and that the defendant Cross, to whom complainant has given a deed for a portion of said premises, with a covenant of seizin, had brought a suit against complainant in the Milwaukee county court, on account of the apparent defect in complainant’s title, which suit is subjecting complainant to trouble and expense; that on the execution of the deed by complainant to Gross, the latter executed to complainant a mortgage on the premises for the purchase money ; and that subsequently complainant foreclosed in chancery such mortgage, and complainant was the purchaser on the sale thereof, and now holds the same in fee ; that the complainant is exposed to a multiplicity of suits on account of such apparent defect in his title, and the expense arising thereon.
    The bill prayed that the heirs at law of Spence, the complainant’s grantor, might be perpetually enjoined from setting up any title to the premises, and that Gross, the respondent, be decreed to have no cause of action against appellant by reason of the supposed defect of title; and that he be perpetually enjoined against prosecuting his suit at law; and for further relief, and for an injunction restraining him accordingly. An injunction was allowed, and the respondent moved to dissolve the injunction, for various reasons, and the court below dissolved it, and from the order dissolving it the complainant appealed.

      Jas. S. Broion, for appellant,
    contended that a court of equity had jurisdiction of the subject matter of the bill. 1. By reason of the loss of the deed which constituted a necessary link in appellant’s defense .to the suit at law. 1 Fonb. Eq., 18; 3 Brown Ch., 218; 1 Story Eq., §§ 101-103. 2. Because a large number of persons are interested in the subject of the deed, and equity will interfere to prevent a multiplicity of suits. 6 Paige, 83; Í Johns. Ch., 166, 524; 2 id., 282. 3. Spence, having assigned the mortgage which was foreclosed in equity, is estopped from questioning ■ the title of the appellant derived through the foreclosure sale. 6 Johns. Ch., 194; 2 Vesey, sen., 326 ; 11 Eng. C. L. Rep., 187 ; 9 B. & 0., 577 ; 8 Wend., 483 ; 6 Pet., 438; and in all cases of equitable estoppel, courts of equity will take jurisdiction, particularly when a defense at law is doubtful or attended with difficulties. Eyre v. Everett, 2 Russ., 382 ; 7 Paige, 560; 6 id., 90,102; 2 id., 284; 10 Johns., 587 ; 17 id., 386.

      JET. S. Orton, for appellee,
    argued that the complainant’s bill was bad on demurrer for want of equity, and therefore no injunction should have been allowed. Bose v. Bose, 11 Paige, 196. That the appellant had a perfect defense at law to the suit sought to be enjoined, as was shown by the bill. N. Y. Dry Dock Go. v. Am. Life Ins. & Trust Co., 11 Paige, 884. That a court of equity would not grant an injunction to protect a party against a multiplicity of suits until his title had been established in a suit at law in some one of the suits. West v. Mayor, 10 Paige, 589. That the appellant, if remediless at law, had become so by his own negligence. Penny v. Martin, 4 Johns. Ch., 566. That the bill did not show distinctly and explicitly the interest of the appellant in the premises.
   Howe, J.

This cause comes before us upon appeal, not from a final decree, but from an interlocutory order made in the court below, simply dissolving a provisional injunction; and, although upon the argument here, the whole case made by complainant’s bill was opened and discussed as if the issue was whether the court below had jurisdiction thereof, yet we have considered and determined the case solely upon the propriety of the dissolution of that injunction.

It was contended, however, that., if from the recitals in the bill it appeared to be necessary to appeal to the equitable jurisdiction of the circuit court at all- and for any purpose, that court should take jurisdiction of the whole subject matter, cite in all persons in any manner related thereto, and furnish such relief against each as his particular connection with the case might seem to authorize.

Accordingly the bill makes three classes of defendants, each occupying a different attitude in reference to the claims of the complainant, and against each of whom a different species of relief is prayed for, as follows:

1st. The heirs of one James Spence, through whom the complainant claims title to the premises described in the bill, are made defendants, and it is prayed that they may be perpetually enjoined from setting up any title, to those premises.

2d. Sundry persons to whom complainant has granted distinct and separate portions of the premises, some of whom, it is alleged, have threatened to commence suits upon the covenants in his deeds, are made defendants, but against them no specific relief seems to be demanded.

3d. The appellee, Cross, who is at once a grantee of the complainant of a portion of the same premises, and the plaintiff in a suit at law commenced against the appellant, upon the covenants in his deed, is a party, and as against him the prayer of the bill is, that he “ be decreed to have no cause of action,” and be perpetually enjoined from prosecuting his said suit at law.

To restrain the prosecution of that suit until the bearing of this, that special injunction issued against which the order was directed, from which this appeal is taken.

In effect, though not in precise terms, this court is asked to decree a nonsuit in a suit at law, and such a decree I think no court of chancery has ever pronounced. Courts of equity, when called upon to restrain proceedings at law, do not assume superiority over the court in which those proceedings are had, nor deny nor usurp its jurisdiction. But when it is made apparent to this court, not that the plaintiff in a suit at law “ has no cause of action,” but that he has a cause of action, a cause nevertheless, which by reason of some mistake, some accident or fraud, it is against conscience for him to prosecute, but against which a defense cannot well be made according to the rules of the common law which govern -those courts, then this court will interfere, and laying its injunction not upon the judgment of that other court, but directly upon the conscience of the party prosecuting, will inhibit him from wresting the process of a court of law to purposes of injustice and oppression. 2 Story’s Eq., § 875; Eden on Inj., ch. 2, p. 14; Mit. Eq. Pl., 128.

But the cause which is sought to be enjoined by the bill before us is of a very different character. The plaintiff in that suit has practised no fraud which he therein claims the advantage of; the defendant has made no mistake which has jeopard-ed his rights or endangered his defense, and the only accident complained of is the loss of the deed from Spence to Norton. Still it is no where asserted that the loss of that deed endangers the complainant’s defense to the suit at law. For aught that appears to us, its loss might very well be supplied upon the trial by parol proof of its contents, under rules of evidence of every day’s application in courts of law as well as in courts of equity.

I do not therefore discover any right of action in this respondent, which it is so inequitable and so manifestly against conscience for him to prosecute, as to warrant the exercise by a court of chancery of its most delicate and extraordinary prerogative, the writ of injunction.

To the argument of the complainant’s counsel, that the loss of that deed destroyed a link in the chain of his title, the respondent might well reply that that loss did not happen through his default, that he was injured equally with complainant thereby, that if, bj^ reason thereof, the complainant was unable to defend his covenant of seizin, he was equally unable to defend his own-possession, or to convey with safety, and that if complainant would invoke the aid of chancery to supply that lost link, he should do so without cost or prejudice to this respondent. .

But, waiving all consideration of the questions whether the circuit court could entertain the complainant’s bill for any purpose, and whether, if so, this defendant might not be a proper party, I am still unable to perceive how the complainant was aggrieved by the particular order appealed from. If the statements of his bill are true, the dissolution of that injunction removed the only protection which the respondent had against a nonsuit in the case enjoined. Eor whether the complainant could prove the execution of a deed from Spence to Norton or not, or whether in fact such a deed ever was executed or. not, the fact did remain nevertheless, and could be readily proved upon the trial, that Spence had taken a conveyance from Norton by way of-'mortgage which in good faith he had assigned, and we are all of opinion that he and his representatives or privies are thereby as clearly estopped at law as in equity, from setting up a prior and conflicting title in himself to defeat the mortgage which he has negotiated, and which has been foreclosed. 10 Barn. & Or., 181; 11 Paige, 384; 17 Johns., 161; 4 Peters, 83.

Order affirmed.


author: Whitoít, J.

text:
    Hooe and others vs. Lockwood.
    1. Hew Tbial. — A motion for a new trial on tlie ground of absence of counsel, is addressed to tlie discretion of tlie court, and unless tliere is a gross abuse in its exercise, this court will not disturb its determination.
    2. Executor — Pleading.—A declaration by a creditor against an executor and bis sureties, must aver that he is such creditor, or that such proceedings have been had as fixed the liability of the executor, and established his right to have the sum claimed out of the estate.
    3. Probate Court. — Under the territorial statutes, a judge of probate had no right to decide that the estate of a deceased person owed a certain person a certain sum, if that fact was disputed. He could only direct the payment to a creditor of his pro rata share-of the assets in the hands of the executor, upon a claim which had been previously ascertained to be legal and valid, or which the executor was bylaw obliged to pay.
    (3 Chand., 41.)
    ERROR to tbe late District Court for Orawford County.
    This was an action of debt, brought in the name of James II. Lockwood, late judge of probate for that county, who sued for the use of “the American Fur Company,” in his official capacity. The action was in debt, founded on a bond executed by Hmilie Hooe, one of the plaintiffs in error, and her sureties in a bond, given in her behalf as executrix of the estate of Joseph Rolette, the testator. By the bond, the plaintiffs in error “acknowledged themselves, jointly and severally, for the whole and in the whole, to be holden and firmly bound and obliged to the said James H. Lockwood, judge of probate, and granting administration in the said county of Crawford, in the full sum of ten thousand dollars and was conditioned for the faithful administration of the estate of Joseph Rolette, as provided by statute. The declaration further alleged that at a court of probate, held on the 29th day of September, 1845, before the said Lockwood, it was ordered that the said Hmilie Hooe, executrix, should pay to the American Eur Company, $279.55 ; and, that although a demand of that money had been made, yet that it had not been paid, and that thereby an action had accrued, etc.
    The plaintiffs in error pleaded nil debit in the first instance — to which the defendant in err.or demurred. The demurrer was sustained and leave given to plead over. The plaintiffs in error then pleaded non esl factum and plene adminisiravit. To the first of which the defendant in error also demurred, and the demurrer was sustained. Then the plea of plene adminisiravit was withdrawn.
    The court below, at a stated term, ordered judgment in favor of the defendant in error, and the court heard proofs on the part of the defendant in error to establish the amount claimed by him from the plaintiffs in error, and then ordered judgment for the sum of $279.55.
    The plaintiffs in error then moved for a new trial, which was refused. After the organization of the state, a like motion was again made before the presiding circuit judge, which was refused, and exceptions were taken to his ruling. The cause came into this court by writ of error. Various points were made by the plaintiffs in error, upon the whole case —which are unnecessary to be stated, — one of which, however, was that the declaration was insufficient.

      Moses M. Strong and Jas. H. Knowlton, for plaintiffs in error.

      Ben. G. Eastman, for defendant in error.
   Whitoít, J.

This case comes here from the late district court for Crawford county.

It appears by the record, that Emilie Hooe and her sureties were sued in that court,on a bond entered into by them, conditioned as follows: That, whereas, the said Emilie Hooe had taken out letters testamentary on the estate of Joseph Rolette, of the county aforesaid, deceased; then, therefore, if the above bounden Emilie Hooe would make, or cause to be made, a true and perfect inventory of all and singular, the goods, chattels, rights and credits of the said deceased, which had, or should come to her hands, knowledge or possession, or into the hands or possession of any other person or persons, for her, and the same so made, should exhibit, or cause to be exhibited in the office of the judge of probate for said county of Crawford, at or before three calendar months from the date thereof, and the same goods and chattels, rights and credits of the said deceased, at the time of his death, which shall at any time after come to the hands or possession of the executrix, or into the hands or possession of any other person or persons, for her, would well and truly administer, according to law, and would further make or cause to be made, a just and true account of her administration, upon oath, at or before the fifteenth day of May, which would be in the year of our Lord, one thousand eight hundred and fortyffour; and the rest and residue of said goods and chattels, rights and credits, which should be found remaining upon account of the said executrix, the same being first examined and allowed by the judge or judges, for the time being, of probate of wills, and granting administration within the county of Crawford, aforesaid, and should deliver and pay to each person or persons, respectively, as the judge or judges, by his or their decree or sentence, pursuant to law, should appoint and limit, that then the said above written obligation was to be void and of no effect, or else to abide and remain in full force and virtue.”

The declaration then sets out that at a court of probate, held before the said James H. Lockwood, then being the judge of probate for Crawford county, in a certain matter pending in said court, upon and concerning the administration of the said estate of the said Joseph Rolette, deceased, it was sentenced and decreed, that the said Emilie Hooe, executrix as aforesaid, should pay to the said American Eur Company, the sum of two hundred and seventy-nine dollars and fifty-five cents, which was then and there adjudged by said court, to the said American Eur Company, as their pro rata dividend of certain moneys received by the said Emilie Hooe, executrix, of and from the estate of the said Joseph Rolette, deceased, and avers a refusal to pay money upon request.

To this declaration the defendant pleaded nil debit, which was held bad on demurrer; they then pleaded non est factum and plene administravit. The plea of plene administravit was held insufficient on demurrer, and the defendants having withdrawn their plea of non est factum, the penalty of the bond was adjudged to be forfeited.

The court then assessed the sum equitably due the plaintiffs at two hundred and seventy-nine dollars and fifty-five cents, and rendered judgment against the defendants for the amount.

The defendants moved for a new trial, founded on the affidavits of Emilie Hooe and Edward W. Pelton, setting forth the absence of the counsel of the defendants from the court at the time when the case was disposed of. This motion was overruled by the court.

Erom the above statement it is apparent that this cause must be determined upon the declaration alone.

The motion for a new trial was addressed to the discretion of the judge, and unless there was a gross abuse of that discretion, this court will not reverse the judgment for a supposed error in its exercise; and we see no such abuse as would warrant us in reversing it. Was then the declaration sufficient to justify the court in rendering the judgment? We have arrived at the conclusion that it was not.'

It sets out the bond which the defendants entered into, with the condition, and the decree or order made by the judge of probate of Crawford county, by which he directed the payment of the sum demanded in this suit, to be paid to the American Eur Company.

This decree the judge of probate had no authority to make ; he had no right to decide that the estate of Rolette owed the money to the American Eur Company, if that fact was disputed, but could only direct the payment to them of their pro raía share of the assets belonging to the estate, in the hands of the administrator, upon a claim against the estate, which had been previously ascertained to be legal and valid, or which the administrator was, by law, obliged to pay. 1 Munford, 1.

The declaration is fatally deficient in not averring that the American Eur Company was. the creditor of the estate, or that such proceedings had been had as fixed the liability of the administrator and established the right of the company to this amount out of the estate.

The other points relied upon by the plaintiffs in error, it is unnecessary to notice.

Judgment reversed.


author: KírowLTON, J.

text:
    Brower and others vs. Merrill.
    1. Error. — Error will not be presumed, but the party alleging it must establish. it by the record.
    2. Same. — A party cannot be heard to complain of an error which does not operate to his prejudice.

      3. Mill Dam Law Damages. — In an action tinder the mill dam law of 1840, the use a man may have of a mill not his, hy having grain ground or lumber sawed at it, or the enhanced value of his lands in consequence of a town growing up around the mill are not such benefits as can be set off against the actual damages for flowing- his lands.
    4. Same. — The benefits which may be set off against the damages caused by the flowing must consist of benefits resulting from the same cause, as by causing useful, watering places where there were none before, and by irrigating and fertilizing arid and barren lands, etc. See post, Mil. & Miss. R. R. Oo. v. Bble.

    5. CHARGE to Jury. If the court does not in its charge cover points upon which the jury should be instructed, the remedy of the party is by requesting proper instructions on such points, and if refused, by exceptions to such refusal.
    (3 Chand., 46.)
    ERROR to the Circuit Court for Dodge County.
    The plaintiff, Merrill, complained against the defendants, Geo. W. and John L. Brower, under the mill dam act of 1840, alleging that he was the owner of certain lands described in his complaint, valuable for agricultural purposes ; that the defendants erected and maintained a dam on the outlet of Eox Lake adjacent thereto, whereby the water in said lake was raised and made to overflow a portion of said lands and whereby they became submerged and rendered useless, etc. Plea not guilty.
    At the trial, the court among other things charged the jury that in estimating the benefits occasioned by said dam to the plaintiff in relation to his lands, the jury were only to consider the actual pecuniary advantage to the farm or lands of the plaintiff derived or which would probably be derived directly frpm the use of the mill, and not the remote and indirect benefit which the plaintiff might draw from the supposed appreciation or enhanced value of his land, in common with other lands similarly situated, by reason of a mill being there erected by the defendants, and a town growing up about it.
    The jury found for the plaintiff; assessed the damages up to the time of finding the verdict at $119, and found that the annual damages thereafter would be $35, and that the damages for maintaining the dam for all time thereafter would he $850. A motion for a new trial founded upon alleged error in the charge of the court to the jury having been denied, the plaintiff had judgment and the defendants brought this writ of error.
    Collins, Smith & Tappan, for plaintiffs in error.

      C. Billinghurst and Jas. H. Knoxolton for defendant in error.
   KírowLTON, J.

We might with propriety dispose of the points relied on by the plaintiff in error by saying that error is never presumed, but that the party alleging it must show it in some legitimate way.

In this case, no part of the evidence is before us. No bill of exceptions, signed by the judge, accompanies or forms a part of. the record. It is therefore impossible to know whether the court below gave an instruction adapted to the facts given in evidence or not. This court is bound to presume the charge applicable to the evidence and the case made out, and that the judge did not go beyond those limits. We cannot countenance the idea that opposing counsel may by consent agree that certain instructions were given by a court, and thereby make records, without giving the judge, who is the proper functionary to declare the record, any opportunity to inspect it. By such a course of practice a court might be made to say and do things (by designing men) which would be ridiculous in the extreme. We do not Wish to insinuate that any thing of this kind has occurred or that any attempt of the kind is suspected. We merely speak of the principle.

Before us is what is termed a bill of exceptions, which after the formal part, contains the following language : The court, among other things, charged the jury that in estimating the benefits occasioned by said dam to the complainant in relation to his said lands, the jury were only to consider the actual pecuniary advantage to the farm or lands of the plaintiff, derived or which would probably be derived directly from the use of the mill, and not the remote and indirect benefit which, the plaintiff might draw from the supposed appreciation or enhanced value of his land in common with oth'er lands similarly situated by reason of there being a mill erected by the defendants, and a town growing up about it.”

“ Consented to.” <! C. Billinghuest.”

We examine this (so called) bill of exceptions, as though the judge had signed it, and it contains all the error assigned. It is contended on behalf of the plaintiffs (defendants below) that that portion of the instruction is incorrect where it is said that the jury were only to consider the actual pecuniary advantage to the farm or lands of the plaintiff derived, or which would probably be derived directly from the use of the mill.” Because if they could only consider suck benefits, that then a benefit derived for instance by erecting watering places in pastures before perfectly dry, or by irrigating and fertilizing an arid parcel, and thereby making good meadow land out of that which was almost worthless before, would be excluded from the consideration of the jury, although a legitimate benefit for the purpose of mitigating the damages. We do not think this a fair construction of the language used. The judge continues the sentence, saying, “ and not the remote and indirect benefit which the plaintiff might draw from the supposed appreciation or enhanced value of his land in common with- other lands similarly situated by reason of there being a mill erected by ¡the defendants, and a town growing up about it.”

Now what is the material inference to be drawn from the whole language used ? Clearly that the defendants were contending that they were entitled to reduce the damages proved by the plaintiff by deducting therefrom the benefit accruing to the lands of the plaintiff not overflowed, the value of which may have been greatly enhanced by the building up of a town near these lands, the town having grown up in consequence of the erection of the dam and mills. And also the benefit resulting to the plaintiff from his close proximity to the mills, whereby he might save much that he would lose in being obliged to go a great distance should he need any of the products of such a mill. Now in this part of the charge, the court essentially told the jury that they might consider, in mitigation of the plaintiff’s damages, the actual pecuniary advantage to the farm or lands of the plaintiffs derived, or which would probably be derived directly from the use of the mill. If this was incorrect, it was in favor of the plaintiffs in error, and it does not lie with them to allege error on that matter. That can come from the opposite party only. It is very questionable, to say the least, whether the use a man may have of a mill not his, by having his grain ground or his lumber sawed, is such a benefit as can be set off against or deducted from the actual damage occasioned by flowing such person’s land. Suppose in this case that the plaintiff had taken logs to the defendant’s mill to be sawed into lumber, and the plaintiff had paid them in full for such sawing, what legal or equitable right had they to claim as a set off against the damages, this privilege exercised by the plaintiff in common with his neighbors who had sustained no injury whatever, though equally benefited by the dam and mills? Was this plaintiff to sustain all the actual damage consequent upon the erection of this dam, while the defendants and their neighbors had and enjoyed the same privileges? Is it just or legal to compel the person who had his lands taken without his consent, to pay just twice as much as any one else for the use and benefit of the mills ? If so, it certainly is not presented in a very imposing attitude.

The statute under which these proceedings were commenced is copied from that of Massachusetts, and the courts of that state hold that the damage and benefit must result directly .from ,th.e .same cause., and that cause is the mere matter of flowing. In the case of Eames v. New England Worsted Co., 11 Met., the court say: “ In addition to the direct damage done to the complainant’s land by the action of water, either by flowing over it and preventing or destroying grass and other products, or by being absorbed into it, or percolating through it under the surface so as to render it less productive, the complainant offered evidence before the sheriff’s jury to prove that the flowed lands, when the water was drawn off, emitted noxious and offensive smells, and thus occasioned damage to lands of the complainant other than those flowed or rendered unproductive, but contiguous thereto; by reason whereof the value of such" other lands for building lots were diminished. This evidence, though objected to, was admitted by the sheriff.

“ The manifest object of this statute is to secure to a land owner, whose lands have been flowed or damaged directly b,y water raised by a dam for mill purposes by another on his own land, a fair and adequate compensation for that damage arising directly from that cause. The law does not justify an allowance for remote, possible or speculative damages,, or damages to any other subject but land, or by any other means than by raising water by a dam for mill purposes. Taking this to be the settled rule in assessing damages, the court are of opinion that the damages sought to be recovered in this case, and sanctioned by the sheriff in his admission of the evidence, was too remote and contingent. The rule admits all direct damage by raising water upon a complainant’s land, as preventing all valuable growth, or by saturating it so as to render it unfit to produce good grass; by separating one part of the complainant’s land from another, so as to render bridges or causeways necessary, or other direct damage. But this complaint seeks further to recover for damages done to other lands, uplands not reached or affected by the water raised by the dam, but in consequence of noxious smells proceeding from the land flowed when not covered by water, by means of which such uplands are rendered less eligible and valuable for building lots. It is too remote, and not within the scope of the mill dam act.”

Again, in the case in 17 Pick., 58, the court say: “But by far the most material question in the present case, arises from the offer of the respondents to prove by way of setoff to the damage done by them to the complainant by flowing his lands, the increased value of his land and that of the vicinity, by the erection of manufactories, and the consequences which may be presumed to result from them in the increase of population, the establishment of schools, towns, stores, banks and all the usual incidents to the establishment of a manufacturing village, in a district which was before exclusively or essentially agricultural.

“ It was ruled at the hearing, that such evidence was not competent. The rule actually adopted was that evidence might be admitted to prove any benefit to the tract of land belonging to the complainant, of which the land flowed was a part, by reason of the erection of the dam, but not in relation to the consequential benefits of the manufactory and mills, by reason of increased population and improvements in the vicinity, nor the consequential benefits arising from increase of markets, schools, stores, mechanics’ shops, or the increased value of more eligible situations of the complainant’s other land.

“ We are of opinion that this rule is correct and carefully guarded and limited. The supposed benefits arising from the increased general prosperity, to the settlement or tract of country are too remote and contingent and indirect to be brought into consideration in the question of damages to a.particular parcel of land arising from a particular cause. They are benefits which the proprietor whose lands are flowed enjoys, if he has them, in common with all those having lands so mear as to be influenced by this general prosperity. Besides, these are benefits not arising directly and immediately from -the building of a dam, and raising of a head of water, but from the application of capital, enterprise and industry, both of the proprietor of the mills and others who are attracted thither by their establishment. All the same consequences would ensue from the establishment of steam manufactories without any head of water.” The judge continues:

“ Besides, the damages are given only for the injury done to the land by flowing, and any reduction or ‘setoff to that damage must consist from benefits arising from the same cause, that is, from flowing the land.” Again he says: “ But the benefits to be set off must obviously be of the like kind with opposite injuries for which damages are sought”

The rule, therefore, which seems to be derived from the statutes of Massachusetts seems to be, to estimate the pecuniary loss arising to the proprietor from the direct injury done to his estate, taken as a whole, by flowing; deducting therefrom any benefit which may be done to the same estate by the same cause, namely, by flowing.

We think these decisions and the rule of sound law in point, and the doctrines contained in them, correct, and that the charge of the circuit judge was clearly within them, so far at least as the plaintiffs in error have a right to complain. If the court did not .cover ground that they desired on instructions to the jury, they should have directed attention to that particular matter, and requested an instruction given thereon, and then, if refused, they could and should have saved the point by bill of exceptions, and then brought error to this court.

We see no reason for disturbing the judgment. It must therefore be affirmed.

Judgment affirmed.


author: Whiton, J.

text:
    Blood vs. Whitman and others
    New Teiai,. — Where a party shows by his own affidavit and that of the witness he proposes to examine that the note sued on was void for want of consideration, and that the evidence to establish such defense is newly discovered, a new trial should be granted, and to refuse it. under such circumstances is error.
    (3 Chand., 54.)
    ERROR to the Circuit Court for Racine County.
    Action of assumpsit on a promissory note a copy of which will be found in the opinion of the court. Trial by the court and judgment for the plaintiff for the amount of the note. Af-terwards the defendant moved for a new trial on the ground of newly discovered evidence, showing that the note was without consideration, which motion was founded on the affidavit of the defendant and of one Thomas as to the facts he would testify to, but the motion was overruled, and judgment having been perfected, the defendant sued out a writ of error.

      Butterfield & Chase, for plaintiff in error.

      Strong & Fuller, for defendants in error.
   Whiton, J.

This case was commenced in the circuit court for Racine county, by the defendants in error. The declaration set out a note signed by the defendant, of which the following is a copy:

“ $410.14. For value received, I promise to pay to Asenath Jordan, or her trustee, four hundred and ten dollars, and fourteen cents, two years from date, with annual interest at seven per cent., conditioned that if I shall, within that time, pay and discharge all legal demands against me without disposing of the real estate which I now own, then the above obligation shall be void, otherwise of force.
Rochester, June 24th, 1844.”

At the trial, tbe above note was read in evidence by the counsel for the plaintiffs, who also introduced testimony tending to show that the defendant did not pay all legal demands against him within the time specified in the condition of the note.

The marriage of the plaintiffs before the commencement of the suit was admitted by the counsel for the defendant, and the plaintiffs then rested their case. The defendant offered no testimony, and the judge by whom the case was tried, a jury having been waived by the parties, being of opinion that the note and parol testimony established a right in the plaintiffs to recover the amount specified in the note, with the interest, rendered a judgment against the defendant for that sum.

It was contended, in behalf of the plaintiffs in error, on the argument, that the note was frivolous, or at best, a wagering contract which the law would not enforce; that even admitting it to be valid, the sum mentioned in it was to be considered in the nature of a penalty, and that the plaintiffs could in no event recover more than compensation for the damages they had sustained by the nonperformance of the condition.

On the other'hand, it was urged that the note was a valid contract, and on its face purported to have been given for a valuable consideration ; that the sum mentioned in it was not to be regarded ás a penalty; but that the defendant admitted in the note itself, he had received that sum from the plaintiffs and agreed to repay it, on a contingency which depended upon his own act; and that the proof showed. the contingency had happened.

The principal question involved in this case is one of difficulty, and the cases bearing upon it, in this country and in England, are so contradictory that they cannot be reconciled. Many of them are cited in Sedgwick on the Measure of Damages, page 451, note.

We give no opinion upon it, as we are satisfied that the judgment must be reversed and a new trial granted for an error of the circuit judge, in refusing a new trial upon the ground of newly discovered evidence.

The bill of exceptions shows that the plaintiff in error made a motion for a new trial, founded on his own affidavit aDd that of one John Thomas. The affidavit of the plaintiff in error sets forth the fact, that after the trial, he discovered material testimony going to the merits, and that the said Thomas is the witness by whom the facts are to be proved.

The affidavit of Thomas sets forth the facts which he is willing to depose, and upon looking into it, we are satisfied that the facts set forth are material, and such as to require a new trial to be had.

The judgment must therefore be reversed and a new trial ordered.


author: KNOWLTON, J. Larrabee, J.

text:
    Oshoga vs. The State.
    1. Cbimiwal Law— Extra Jury Term. — A grand jury may lawfully be summoned at an extra jury term of the circuit court, appointed as provided by cb. 83, sec. 6, it. S. 1849, and indictments found by it are valid. The decision of the circuit judge as to the necessity for holding such term is not subject to be questioned or reviewed. Larra-bee & Whiton, J. J., dissenting.

      •i. Same. —A criminal cause may lawfully be tried at an extra jury term.
    (3 Chand., 57.)
    ERROR to the Circuit Court for St. Oroix County.
    The plaintiff in error, Oshoga, an Indian of the Chippewa nation, was indicted and tried for the murder of Alexander Livingston, and was convicted and sentenced by the court. It appeared from the record that on the 14th day of August, 1850, the circuit judge at chambers made an order for the holding an extra term of the circuit court for St. Croix count}’’, on the day before mentioned, in which order it was expressed to be an extra jury term, deemed necessary to complete the jury trials during the year; in which order the clgrk was requested to make out lists, draw and issue a venire for a petit and grand jury, for such" court.
    At the time appointed the court was organized, and the sheriff returned the venire for a grand jury, with the names of twenty persons summoned as grand jurors; after which, the judge ordered a venire to be issued for summoning two additional. jurors, he discovering that the panel was incomplete, to supply the deficiency.
    The jury thus summoned was sworn. The venire for a petit jury was also returned by the sheriff, with a panel of thirty-two names indorsed thereon, as having been summoned; and the judge regarding that number as insufficient, another venire was ordered for summoning ten jurors in addition, which was done. The grand jury found this indictment for murder at the same term. The prisoner, by his counsel, filed a demurrer to the indictment, which was overruled by the court, and by leave of the court, he pleaded not guilty. At the same term a trial was had by a jury taken from the jurors summoned, as aforesaid, and the plaintiff in error was found guilty of the murder charged ; and sentence was pronounced.
    In this court, the counsel for the plaintiff in error assigned and argued the following matters, alleged as errors in the proceedings :
    1st. It was error in the court to order a venire to be issued for summoning a grand jury at a special term of the court.
    2d. It was error in the court to have impaneled and sworn such jury.
    3d. The court erred in receiving the bill of indictment found by the grand jury against the plaintiff in error, and trying him thereon.
    4th. The court erred in impaneling the petit jury to try the accused.
    5th. The judgment and sentence of the court, upon the record and proceedings before mentioned, were erroneous.

      „ The judges of this court being equally divided in opinion as to the legality of the conviction, it was therefore affirmed.
    The following opinion of the court is by the j'udge before whom the trial and conviction were had :

      Cole & Biddlecome, for plaintiff in error.

      S. Park Coon, Attorney General, and Jas. H. Knowlton, for the state.
   KNOWLTON, J.

The record in this case shows that no term of the circuit court, as fixed by statute, was, or could be hold-en in the county of St. Oroix, in the year 1850. That I made an order at chambers for, and appointed an extra j'ury term, to be holden on the 29th day of August last, and among other things, the clerk of the court was ordered to issue a venire for a grand j'ury, which was done accordingly. This grand j'ury found and returned into court an indictment for murder against the plaintiff in error, upon which, at the same term he was tried, convicted and sentenced to be bung, whereupon the plaintiff sued out a writ of error. The only question in the case for decision is — can a grand j'ury be legally impaneled at an extra jury term ?

This is a question of great importance, and should be minutely examined, cautiously traced, and decided upon principles too firm to be shaken by any thing of ephemeral character. The question goes to the jurisdiction and requires an examination of the constitution, the statutes, and the common law of the land.

1st. Can the jurisdiction be maintained by the constitution and statutes ?

2d. If not, will the jurisdiction attach at common law ?

These propositions will be examined in the order indicated.

In art. 7, sec. 8 of the constitution, it is declared, “ The circuit courts shall have original jurisdiction in all matters, civil and criminal, within this state, not excepted in this constitution, and not hereafter prohibited by law, and appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same. They shall also have the power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certio-rari, and all other writs necessary to carry into effect their orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions.”

Tire revised statutes, page 412, sec. 6, provide, among other things, that the judges of the circuit court, “in vacation, shall have power to award, throughout this state, returnable in the proper county, writs of injunction, ne exeat, and all other writs and process which may be necessary to the due execution of the powers with which they are vested, and the said courts shall respectively have power and authority to hear and determine all cases of crimes and misdemeanors, of whatever kind, not exclusively cognizable by a justice of the peace, which may be committed in any county or place within their respective circuits.”

It is obvious that the constitution has conferred upon the circuit courts a general jurisdiction over criminal matters, subject only to the restriction of that instrument and constitutional legislative prohibition; no such restriction or prohibition exists as to the crime of murder. Having power then, to try a person charged with such crime, at a given time, the use of all the machinery of the court to the proper exercise of that power, is ex necessitate part and parcel of, incident to, and goes with it. This proposition is deeply imbedded in the elements of reason for its foundation; were it otherwise, our system of government might be impotent of judicial power at an important crisis, and our government crumble, totter and fall; an idea too ridiculous and intolerable to receive attention. This principle is sustained by the following cases: United States v. Hudson & Goodrich, 7 Cranch., 32; Gardiner v. United States, 3 Scam., 83; 1 Brock., 156.

Tn reference to the ease in 3 Scam., 83, it is contended it is based upon a statute of Illinois, and so entirely different from ours as to have no application to the case at bar. It is to be regretted that we have not the whole case as reported, but from the digest, it appears that the accused was indicted at a term of the court appointed by the judge, and that the statute of that state requires the court, at such appointed term, to try all persons then in jail, on a charge of crime. The supreme court of that state held that as the statute required the court to try such prisoners at the term so appointed, it was lawful to impanel a grand jury, to the end that those prisoners might have their trial. Now, it will be readily perceived that the power to impanel a grand jury in that case was an incident merely to try the prisoner. The court had the power to try the prisoner from the statute requiring the court to do it, or it possessed the power independent of that statute. It is presumed the court had the power by some other statute or paramount law, and that this statute was merely directory in requiring the court so to do, to the end that the accused should have a speedy public trial, and not that he should be tried, whether prepared or not; or, in other words, the statute did not impose an injunction stripped of any alternative, and not subject to construction like other statutes, in order to carry out the intent of the law making power, consistent with sound reason. It amounts to no more than a declaration that the court may try all persons confined at the time so appointed. But, admitting that this view of the matter is correct, and that the court had no power to try a person save that conferred by the statute requiring it to do so, yet the court had the power to try, and it was by virtue of this power that it could do so, and from this resulted the incidental right to the grand jury, as a part of the machinery of the court, without which the court could not exercise the power given, unless, perchance, all the prisoners had been indicted previously. It would seem, therefore, upon principle, that a grand jury may be impaneled at any term of the court when the cause may be tried, provided the indictment must (or may) be found in the same court Whatever a court may do, it is lawful to do. This brings me to an examination of the power of the circuit courts of this state to try a person accused of the crime of murder at an extra jury term appointed by the judge, as required by the statute (Rev. Stat., 412, sec. 4), which provides that “ it shall be lawful for the judge of any circuit in this state to appoint not exceeding one extra term of court to be holden in any county in said circuit, in case he shall deem such term necessary to complete the jury trials of such county during any year, and to cause lists of petit jurors to be drawn, and writs of venire to issue as in other cases.” Now can a trial be had at a term appointed as contemplated by this section, when such trial requires the intervention of a petit jury? It was conceded on the argument that such trial might be had in causes when an issue of fact had been joined, at the time the order was made for such term, and that the power was limited to such cases. The rule thus limited would bar a trial in a criminal cause when such issue was not made, notwithstanding the indictment might have been found at some previous term of the court, as the plea in such cases is seldom put in until the trial is about to commence. By what rule of construction, or upon what principle of legal deduction is this position to be maintained ? I confess that my powers of discrimination have entirely failed to make the discovery. There is not one word in this section about issues either of law or fact. Let us test the soundness of this doctrine by a single case:

Suppose that after the term is appointed, A. discovers that he has time to commence an action by declaration, and does so, and gets an issuable plea ten days before the first day of such term, and that he immediately files the note of issue, and gives notice of trial at the term. The clerk docket's, the cause, and, during the term, the case is called, for trial, and the defendant should then object that the court had no power to try it; would the court listen one moment to such objection, or if it did not, would this court for that objection reverse the judgment ? I apprehend not. Does this section authorize in terms, tbe court to impanel a jury, try a cause, receive a verdict, render a judgment, or do any single act that a court may do? Certainly not. How, then, and why can the court at such term perform the functions of a court ? For the obvious and sole reason that it is a court, the jurisdiction and authority of which stand in bold relief on the pages of the statute and constitution. There is to be found its helmet and shield. The manner of, or themodus operandi by which that jurisdiction or authority is set in motion or exercised, may or may not be defined by statute; when it is', it should be observed and followed; when not, the course of the common law, if any, directs ; and when there is neither, reason is the polar star. But however this may be, the power may be exercised, and when it has been, and the manner of doing it pursued, I see no reason for complaint.

Before entering upon a minute examination of the power exercised in this case, and the manner of exercising it, let us examine this section and its proper construction a little further. Before doing so, however, I will remark that all the power conferred by this section is given to the judge at chambers, and not to the court. This distinction is material and should be borne in mind, as error may be avoided by so doing. For certain it is, that the powers delegated to a judge, as such merely, can have nothing to do with, and form no criterion as to his powers when sitting as a court. With this I resume the investigation of the powers exercised in this case, which leads us to a particular examination as to what' is the proper construction of the section on which its exercise is based previous to the coming of the court. By virtue of this provision of the statute, the judge is authorized to do three distinct things, and no more. .First: To appoint not exceeding one extra jury term of court, during any year, in any county in his circuit. Second: To cause lists of petit jurors to be drawn. Third: To cause writs of venire to issue as in other cases. We will examine each in order. The language “ in case he shall deem such term necessary to complete the jury trials of such county during any year,” is merely directory to bim, and is tbe guide as to the state of case or facts upon which his mind must operate, in order to exercise the power first conferred. And when his mind is so satisfied, he may appoint the term ; and when he does so, this portion of the statute is fulfilled, has no more demands, and nothing more to do with the matter. This decision made and carried into operation is final and conclusive, and cannot be drawn in question in any way known in law for the review of decisions made by subordinate tribunals. That this should be so will appear obvious, when we consider that a contrary doctrine might unsettle everything done by the court at such term. The intermeddling with the exercise of such discretion would be fraught with dangerous consequences. 1't would be annihilating a rule, with few exceptions, of universal application, which is, that a decision resting in discretion merely, is the law as to the matter adjudicated. Now, no particular number of jury cases are required to exist before the judge may exercise this discretion, and appoint the term. He judges of the necessity, whatever the number may be, and acts accordingly in the premises. But it is said that the language, “ jury trials,” is descriptive of the cases the court may try, and that a criminal case, when the accused has not been previously indictéd, is not a jury case. This proposition assumes that whether a criminal case is a jury case or not must depend upon the time when the indictment is found, and not upon the the fact that a crime has been committed. I cannot yield my assent to this proposition, but on the contrary hold, that whenever an individual has committed an act declared or punished as criminal, and legal proceedings are taken against him, that from that moment it is a jury case in every legal point of view, and that most emphatically so, inasmuch as the accused has, by the constitution, secured to himself the right of a speedy public trial by jury; so that if it be admitted that this language is descriptive of the cases that the court may try at such term, and that all others would be excluded, the case at bar, charg: ing upon the defendant the crime of murder, is a jury case; now, it is true that an issue of fact should be joined in a criminal case before a petit jury is called to decide whether the facts charged upon the prisoner are true or not. This principle, however, has application to what must be done in the case before it is ready for the action of the traverse jury, and has nothing to do with the question whether it is or is not a jury case; that depends upon the law, and by our statute it is made the duty of the court to enter the plea of “ not guilty ” when the accused refuses to plead.

Again : It is said that the language, “and to cause lists of petit jurors to be drawn,” confining the court to petit jurors, excludes the right to a grand jury. It would be a sufficient answer to this proposition to reiterate what has been before suggested — that the power here given is to the judge at chambers, and has nothing to do with the rights or powers of the court. The powers of a judge at chambers may be circumscribed within very narrow limits, and yet a court be vested with most plenary powers. But yielding this ground, upon what principle of law can such a doctrine be sustained by a court ? I have yet to learn that when a statute confers some new right or power, that it thereby takes away, excludes, or works a forfeiture of all or any other right or power, although so totally different as not to be placed in juxtaposition therewith. Let us exemplify this doctrine. Suppose that the legislature, at their session, should pass a law that the circuit courts of this state, at the stated terms, should have power to hear and determine all misdemeanors in the proper counties of their several circuits, and to cause lists of petit jurors to be drawn, and writs of ven-ire to issue. Such statute would be more specific than the one under consideration. The one supposed, would give absolute power to the court to hear and determine all misdemeanors, whereas the other gives no authority to the court to hear or determine any case; but the power to do so must be sought somewhere else, and when found, it is ample, general and not limited in its exercise, to any given time. Who will contend that the supposed statute would take away the power of the court to hear and determine civil causes and felonies, as conferred by the constitution ? Such doctrine is, to my mind, legal heresy, and I venture the assertion that no well adjudicated case can be be found to support it in the books. Why, even a statute providing a new remedy does not take away a remedy previously existing at common law, unless negatived thereby ; and when not negatived, either remedy may be pursued. This principle is so familiar as to require no authorities to be cited in its support. I apprehend that when it is said that what is expressed excludes what is not expressed, means nothing more than this; that the language is to be so construed as not to include subjects riot within the words of the enactment, or plain intent of the law-making power; but that it has nothing to do with other rights or powers conferred by some other statute or paramount law.

In England, where'parliament has supreme legislative power, the courts hold that the powers of a court of general jurisdiction can only be taken away by express words or necessary implication.

How then can such power be taken away from a court by giving power to the judge at chambers, and that too. when this general power or right is conferred by a written constitution, so elevated as to be above legislative reach?

It will require more than ordinary logical skill to establish the fact, that when you give one thing without qualification, that of necessity, it takes away some other thing. The last power given to the circuit judge at chambers by this 4th section, is “to cause writs of venire to issue as in other cases.” Here it is said, that although the language, “ writs of venire,” is general, and in the plural, that is to be taken in a restricted sense, controlled by the preceding language, and only means a venire for a petit jury in the first instance; and in case it becomes necessary to have talesmen, then another venire for that purpose, and so on, and thereby you get your writs. Now, can the judge at chambers cause more than one writ of venire to issue for a petit jury? But, suppose this be admitted, will the right to issue a venire for a grand jury be taken away by giving a right to issue a venire for a petit jury ? If so, then, if the statute read and cause writs of venire to issue for a grand jury as in other cases,” the right to have a petit jury, by the same rule of construction, would be taken away, which would have the effect to take away from the clerk what he is by another provision of statute, required to do, as we shall presently see. But I forbear pursuing this mode of construing statutes further. Now, how is a jury obtained? What officers officiate in that matter, and how do writs of venire issue in other cases ? The statute answers: “ The board of county supervisors, at their annual meeting in November, shall select from the poll list of the different towns, in their respective counties, and the counties attached thereto, for judicial purposes, last returned to the clerk of their board, and shall make out a list of seventy-five persons, properly qualified, to serve as grand jurors, and another list of one hundred and forty persons, properly qualified, to serve as petit jurors; which lists, certified and signed b}r the chairman of the board making such lists, shall be forthwith delivered to the clerk of the circuit court, etc. Rev. Stat., 511, sec. 3.

Sec. 5 provides, that “ if for any cause such lists should not be made and delivered as aforesaid, by the board of county supervisors at their annual meeting in November, it shall be their duty to make out and deliver the same as aforesaid, at any regular meeting of said board.” The sixth section provides what kind of persons shall be thus selected.

It is then provided by sec. 7, “ on receiving such lists, the clerk of the circuit court shall write the names of the persons contained therein, on separate pieces of paper, each in the same manner, as near as may be, so that the name written thereon shall not be visible, and shall deposite such pieces of paper, those containing the names of the grand jurors in one box, and those containing the names of the petit jurors in another box, from which they shall be drawn as hereinafter provided.”

“ Sec. 8. At least fifteen days before the sitting of any court, the clerk of the court, in the presence of the sheriff or under sheriff and a justice of the peace, shall proceed to draw the names of twenty-three persons from the box containing the names of the grand jurors, to serve as grand jurors at such court, and the names thirty-six persons from the box containing the' names of petit jurors, to serve as petit jurors at such court,"

The next section provides that the clerk shall issue and deliver to the sheriff or under sheriff of the county two venires, one for the grand jury and one for the petit jury,' under the seal of the court, commanding him to summon the persons so drawn as grand jurors, to appear before the said court, at or before the hour of eleven o’clock A. M., on the first day of the term thereof, to serve as grand jurors; and persons so drawn as petit jurors, to appear before the said court, at or before the hour of eleven o’clock A. M. on the second day of the term thereof, to serve as petit jurors.”

The next section provides that the sheriff shall summon the persons named in each venire at least four days before the sitting of such court.,

The 12th section provides that there shall not be more than twenty-three persons, nor less than sixteen persons, sworn on the grand jury. There is no complaint that these provisions have not been complied with. The statute of 1839 provides for fifty grand and seventy-five petit jurors; two full panels of each jury. There were but two jury terms provided for under that statute. Now, why did the legislature at the same time it made provision for an extra jury .term, require that the board of supervisors should make out lists of persons qualified to serve as grand and petit jurors, sufficient (with a few additional to meet cases of death, etc.) for three full panels of each, corresponding exactly with the number of terms that the court might have a jury, unless the court might have a grand jury at the extra jury term, should there be one appointed ? Why require the clerk to issue a venire for a grand jury at the same time and for the same terms that he is required to issue a venire for a petit jury, unless the intention was that the court should have a grand jury at the same time that it had a petit jury ?

If a greater number than is intended for use be put upon the lists, why not give the county of Milwaukee, for instance, with the three regular terms, an extra number of persons for the juries instead of exhausting both lists ? Is not the duty of the clerk plain, and couched in positive mandatory language, applicable alike to grand and petit juries ? Can the clerk comply with the statute by issuing one venire when it is declared that he shall issue two? Does the statute authorizing the judge “ to cause lists of petit jurors to be drawn and writs of venire to issue as in other cases,” relieve the clerk from the performance of a duty enjoined upon him by the positive commands of a statute ? • But it is said that the clerk can only issue a venire for a grand jury at the regular term, and the language, “ any court,” used in this statute, properly construed, means any regular term; as otherwise, the clerk would have to issue a venire for both juries at the special terms .authorized by sec. 5, p. 412 of the revised statutes, which is in these words : “ It shall and may be lawful for the judges of the circuit court of this state to hold special or adjourned terms at any time they shall deem it necessary, for the purpose of hearing and disposing of all motions or questions of law; and all judgments, orders or decrees that may be made or entered at said special terms shall be as valid and effectual, to all intents and purposes as any judgments, orders or decrees, made or entered in term time.” Suppose the language will warrant such a construction, it proves nothing against the right of a grand jury at the extra jury term. But the language, on the contrary, goes to establish that right. All difficulty on this score will vanish whenever we reflect that courts do the business for which they are held, and not business which they are not holden to do. For what purpose, then, may these special terms be held ? The statute declares “ for the purpose of hearing and disposing of all motions or questions of law.” Now for this purpose no jury is needed. I submit, that if the legislature had intended that the court should have juries at more than three terms, they would have provided lists of sufficient numbers to carry into effect that intention. I might here notice that it is provided by this section, that all judgments, etc., made or entered at said special terms shall be as valid and effectual as any judgments, orders, etc., made or entered in term time. The legislature has endeavored to make as clear a distinction between special terms and general or jury terms (which is what they mean when they say term time), as a farmer would in saying wheat and buckwheat.

But it may be said that there is equally as much difference between the' language extra jury term, and that used as descriptive of the terms previously provided for in this chapter and fixed, usually called regular terms. These terms are established by sec. 2, Rev. Stat., 411, in these words:

“ The circuit courts of this state shall be holden at the times and places following,” etc. The time fixed for holding the courts by the statute is what determined the term thereof. The circuit judge decides the time and necessity of the other or extra term. There is no such language used in the statute as regular terms, general terms, or jury terms, except in the fourth section before cited, where it occurs with this prefix, “extra,” and this presents a very cogent reason for saying that the legislature evidently intended that this extra jury term should be in all respects like those fixed in a different manner in section 2, above cited. If this is not their intention, it will be exceedingly difficult to divine what they did mean. If this be the intent and meaning, then the words extra jury term, as there used, are synonymous with the terms thus fixed. Why call or name these terms jury terms? Obviously, that the court might have juries, and it explains the reason why the clerk-is to issue at the same time two venires “ before the sitting of any court,” one for the grand and the other for the petit jury, without leaving him any discretion to issue one and not the other, as he might think proper. The very word “extra,” used as in this case, as a pirefix, implies that it should be a term alike in all respects, to some other terms of the same court. Again, if there is only a petit jury allowed at an extra jury term, why not provide for the petit jury to be summoned to appear on the first day of the term, instead of the second day, as provided by the statute? Simply because writs of venire are to issue, as in other cases, for both grand and petit juries, and it is an extra general jury term in all respects whatever.

Some doubts are entertained whether the clerk is not the person who must draw the lists of petit jurors. The statute settles this matter. The board of county supervisors are to make out the lists for both juries and deliver them to the clerk, and the clerk merely draws the names out of the boxes for the venires for the grand and petit juries. The statute nowhere requires the clerk to draw lists of petit jurors; his duty is all to be performed after he receives the lists, and he is not such an officer as to take this power by implication. His powers and duties are limited. The power of the court, however, for aught that appears, is as ample at an extra jury term as at any other term, and it would seem that public policy requires it should be so. The grand jurors, as well as the court or petit jurors, have as much honesty and integrity as well as knowledge, at one time as at another, and when the statute is followed in preparing the juries for the court, there is no chance to practice fraud or imposition, any more than at another time, although it might have been done by corrupt officers at common law ; public justice cannot be retarded by such course, but may be promoted. If tbe accused is guilty, justice does not require any procrastination. If he is not, he may be the sooner restored to his family and friends, and enjoy the blessings of society, peace and healthy air, agreeably to the spirit of the constitution, giving “a speedy public trial by an impartial jury of the country or district wherein the offense shall have been committed.” A provision so wholesome to both the accused and the public, no doubt had great force, and may have been the-primary moving power upon the minds of the legislature, in making this wholesome provision for an extra jury term, when the circuit judge became satisfied of its necessity to complete the jury trials within any year.

At common law, a grand jury was a part of the machinery of a court, like our circuit courts, of general jail delivery. This jury was also an incident to the sheriff’s office and duty. There is no statute taking away the common law right to a grand jury. The circuit courts, then, may have this jury by right of the common law. I shall not go into an examination of the common law, but content myself by saying, that the bearing upon this branch of criminal jurisprudence may be found in Hale’s Pleas of the Crown, Hawkins’ Pleas of the Crown, and 5 Bacon’s Abridgement, title “juries,” and 2 id., title “court.” If this power exists either at common law or by statute, it is the imperative duty of the judge to exercise it when he shall deem it necessary.

I have considered this case somewhat at length, for the reason that this is the first and only time that a grand jury has been impaneled at an extra jury term.' It would seem proper, therefore, that some of the reasons which guided me in so doing should be placed upon record. I think the judgment should be affirmed.

Judgment affirmed by an equal division of the court.

Larrabee, J.

The plaintiff in error was convicted of murder and sentenced at a special term of the circuit court. He was also indicted at the same term bj a grand jury, summoned for that term. There is no question but he could be legally tried at a special term, but the difficulty is in the order of the judge, directing a grand jury to be drawn.

The terms of the circuit court are fixed by law, and directions given to the clerk to draw a certain number of jurors, grand and petit. This is by the general law regulating the general terms of court. The juries are summoned under the provisions of the statute, and not by the order of the judge. But power is given the judge to appoint an “ extra jury term ” for the trial of issues formed at the previous circuits, and which were undisposed of for want of time, and to summon a jury for that purpose. It is not claimed, I believe, that this is one of the common law powers of the circuit judge or of the circuit court. But the power is derived directly from the statute. And certainly no power exists outside the statute for holding extra terms, even for the trial of issues previously formed. Does the statute then give the power to order a grand jury to be summoned at an extra jury term ? I think not. If this had been intended, it would have been expressed. It was intended to give the power to summon petit jurors, and this is distinctly expressed.

I am entirely clear, therefore, that the grand jury in this cause was summoned without authority of law, and that the judgment should be reversed.

WhitoN, J., concurred in this opinion.


text:
    Bridge and others vs. Bracken.
    1. Tax Deed — Evidence. — A tax deed executed by a collector of taxes under sec. 23, page 49, Terr. Stat., is prima facie evidence only of the regularity of the sale or auction, but not of the regularity or validity of the previous proceedings, and in order to show that the tax deed passed title, it is necessary to show by evidence aliunde, the validity and regularity of the proceedings upon which the right to sell the lands for taxes depended.
    Same. —Tribunals and officers of limited jurisdiction must confine themselves to the powers conferred on them, and they can take nothing by intendment. Any person claiming by virtue of their acts must show affirmatively the regularity of their proceedings. Nothing that is essential to the validity of their proceedings can be presumed.
    (3 Chand., 75.)
    ERROR to the late District Court for Rock County.

      Bracken brought ejectment against Jeremiah Bridge, George, Bridge and Donald Johnson, to recover certain real estate in G-reen county, and the place of trial was changed to Rock county.
    At the trial the plaintiff produced in evidence a patent from the United States to William Madden for the premises in question, and a conveyance from said Madden and his wife to himself of the same lands.
    The defendants gave in evidence a deed describing the lands in question, from the clerk of the board of county commissioners of Green county to Jeremiah Bridge, one of the defendants, and one Harcourt, dated December 23, 1843, which recited, among other things, that the said premises had been sold by the collector of Green county for taxes due the county for the year 1841; also a deed of the same lands from Harcourt and wife to said Jeremiah Bridge, and another deed thereof from said Bridge and wife to the defendant Donald Johnson. No other evidence was produced.
    The circuit judge charged the jury, that it was incumbent upon the defendants, inasmuch as they claimed title under a tax deed, to show that all the proceedings connected with the levy of the tax and the sale, and execution of the deed, were in. strict compliance with the statute, in all things that were material ; and that the defendants having failed to offer any testimony to that effect, did not show any title in themselves, sufficient to bar the plaintiff from recovering under his deed.
    The jury found a verdict for the plaintiff, and the plaintiff had judgment.

      Jas. II. Knowlton, for plaintiff in error,
    argued that the circuit judge erred in the charge to the jury, 1. Because the statute made the deed prima facie evidence that the sale was regular. 2. The statute gives the like force and effect to a tax deed as is given by law to other conveyances.

      M. M. Cothren and D. II. Chandler, for defendants in error.
    Where lands are sold for taxes and a deed is executed therefor to the purchaser, it is not 'prima fade evidence, of itself, that the proceedings required by the statute have been complied with, they must be shown affirmatively and clearly, aliunde the deed. 3 Peters’ Dig., 463 ; 9 Cranoh, 64; 3 Cond. Eep., 271; 6 Wheaton, 119; 5 Cond. Eep., 28; 6 Peters’328; 6 Missouri, 64; 3 Ohio, 232 ; 4 Cranch, 412 ; 4 Peters’ Eep., 349 ; Thatcher v. Powell, 4 Wheat., 77 ; 5 Ohio, 370 ; 18 Johns., 442 ; 2 Denio, 322; 8 id., 603; 2 Comst., 69 ; 19 Yerg., 49 ; id., 470.
    2. That the patent shown in evidence by the plaintiff, and which bears a prior date to any of the deeds to the defendants, was the source and origin of all title, and paramount to any title shown by the defendants, and must prevail; and that by the statute, nothing was declared to he prima fade evidence but the deed executed by the proper officer, which it was contended could have no relation to the incipient and intermediate acts necessary to be performed, prior to the giving the deed ; that those incipient and intermediate acts were to be performed by other functionaries, than the officer who made the deed; and the deed itself, making no mention of the primary or interme-díate acts, could not be made prima facie evidence of anything other than what was contained in it.
   Larrabee, J.

The instructions of the judge to the jury in the court below were correct. The plaintiff below showed title derived directly front the government, which was undisputed, and a deed from the patentee to himself.

The defendants below, to substantiate their title, produced a succession of deeds, having for source of title a sale made by a collector for taxes levied upon the lands in question.

The deed from the collector showed the sale by a recital merely; and no proof was offered or given, showing the levying of the tax, or any intermediate proceedings, up to the time of sale and the execution of the deed.

The statute provides for various acts to be done by the county commissioners and other officers under them, which are requisite in order to legalize a sale and conveyance for taxes, and without which no title can be passed as against the person who holds the original title, or a title deduced from it.

By the territorial revised statutes of 1839, p. 44, the assessors are to be elected and qualified in the manner prescribed by the thii’d section. By the fifth section, the assessors are required to deliver their assessment roll to the board of county commissioners by a time certain ; the land assessed is to be described by the number of acres and the value, and to be designated by the description as found on the map of original surveys; and the right of appeal to the board of commissioners by the owner of the land is provided for.

By the seventh section it is provided that the assessors shall give two weeks’ notice in some newspapér printed in the county, or by posting notices, that they will meet on a certain day for the purpose of correcting errors in the assessment roll. Then, after various provisions requiring further steps to be taken, section 22 provides, that after complying with the foregoing provisions, the collector may sell to the highest bidder, and deliver to the purchaser a certificate of sale.

Section 28, then, among other things, provides that after the period of redemption has expired, the collector shall execute a deed to the purchaser or his assigns, which shall vest in the person to whom it is given, an absolute estate in fee simple; “ and such conveyance shall be prima facie evidence that the sale was regular, according to the provisions of this act; and every such conveyance, executed and acknowledged, may be recorded, and have like force and effect as other conveyances when acknowledged and recorded.”

None of the acts required by the statute, except the sale and the execution of the deed, appear to have been shown on the trial. The essential’steps before referred to are mostly, if not all, required to be made matters of record in the archives of the county; and make up essential ingredients in rendering legal the assessment and all proceedings up to the sale.

It is an almost universal principle that in sales of property made by an officer by virtue of process issuing from a tribunal of limited jurisdiction, he should be invested with the needful legal right for that purpose, and a purchaser upon a sale made by the officer in ordinary, and perhaps in all cases where the right to sell is contested, is bound to show the regularity of the principal proceedings incipient to the sale.

The process may be regular on its face, and may contain recitals of regular proceedings to j’ustify its issue and execution ; but a want of jurisdiction to issue it would be fatal to the validity of the sale.

Tribunals of limited jurisdiction must literally confine themselves within .the powers prescribed by them; and in justification of their proceedings they can take nothing by intendment No power is presumed; and the requisite authority must be shown.

The recitals in a deed given by an executive officer of the proceedings had by an inferior tribunal, from which he derives the power to sell, I apprehend, are very far from conclusive ; and an action against such officer might well be maintained, unless upon the trial he shows legal authority in the tribunal from which his process issued, for the justification of his acts.

The machinery provided by the statute for the assessment and levying of taxes is cumbersome ; and it is committed to various hands for operation, and hence there is great opportunity for the intervention of errors.

In this cause, the plaintiff in the court below showed clear evidence of title in himself to the land in question. The defendants could not defeat the plaintiff’s recovery unless they produced a better title, or one paramount to it, as derived from a higher source, or by a legal record, showing title out of the plaintiff and vesting it in them, the defendants. It is true, they showed a sale of the premises and a deed to themselves, based upon such sale. But the proceedings constituting the legal right for making such sale were not shown. The recitals in the deed gave no jurisdiction to the officers who created the machinery by which the sale was effected. The acts of those officers should have been shown, and have been found to be in accordance with the provisions of the statute under which they assumed to act. The record of their proceedings was vitally essential to the defendants, without which, we hold they could not sustain their defense.

But it was claimed by the counsel for the plaintiffs in error, that the concluding part of the 23d section of the act before referred to legalized the deed, and vested a title in the defendants below. The words of the statute are: “ and such conveyance shall be prima facie evidence that the sale was regular according to the provision of this'act.”

I apprehend that, after the plaintiff has produced his patent and the deed derived under it, and which was not disputed, that _pnma facie evidence or any other evidence which did not fully and clearly annul the patent and deed, could have but little force. Prima facie evidence is not potent enough to disturb a clearly established record; and this evidence was not even prima facie, except by being made so by arbitrary enactment.

But the provision of the statute did not make the deed evidence of anything except the regularity of the sale, the mere auction; nor did the deed import anything beyond the sale itself by the officer who made it.

The judgment of the court below is affirmed.