author: Whiton, J.

text:
    Conklin v. Parsons.
    1. Fixtures — set-oef.—Where parties exchange farms with each other, and at the time of the exchange, rails had been placed along the boundary line of one of the parties, by him, in contemplation of erecting a fence with them, and after the exchange, the party into whose possession they fall, thereby converts them to his own use, and sues for a balance due him on the exchange of the lands, held, that the value of. the rails could not be set off against the claim, though there had been an unlawful conversion of them, the statute of set-off’ relating only to goods sold. If, the appropriation of the rails was a tort, it could not, under the statute, be the subject of set-off.
    2. Error — set-oef.—While it is error for the court to admit evidence of the unlawful conversion of property as a set-off, in an action of assump-sit, yet if it instructs the jury to reject the set-off, and they find accordingly, the error is thereby cured.
    3. Fixtures. — Where rails are promiscously placed along the line of a contemplated fence, and before its erection the land is conveyed, the better opinion is, that they pass by the conveyance as a part of his realty.
    (1 Chand. 240.)
    EEEOE to tbe Circuit Court for Fond du Lac County.
    Tbis was an action of assumpsit to recover tbe difference in value of certain lands, wbicb bad been exchanged between tbe parties, and wbicb tbe plaintiff in error, tbe defendant below, bad agreed to pay to Parsons, tbe defendant in error and plaintiff below. Against that claim tbe defendant, on tbe trial, under a notice subjoined to bis plea of tbe general issue, offered proof of a set-off of tbe value of certain rails, wbicb, previous to tbe time of tbe exchange of lands, bad been placed there by bim for constructing a fence, and wbicb bad been appropriated by tbe plaintiff below, to bis own use, subsequently to tbe exchange of the lands, and tbe taking possession thereof by tbe respective parties.
    Tbe plaintiff objected to tbe allowance of tbe evidence of the conversion of tbe rails to bis use, as a set-off against bis claim for the agreed difference in tbe exchange of lands. Tbe court admitted tbe evidence ; and to 'this decision tbe plaintiff below excepted.
    It was then admitted by tbe counsel of tbe respective parties, that tbe only matter of dispute between tbe parties in tbe suit was tbe right of property in the , rails, and that tbe rails were of tbe value of fifty dollars.
    Tbe court charged tbe juiy that tbe rails in question passed to and became the property of tbe plaintiff on tbe exchange of tbe lands, being at tbe time of tbe exchange upon tbe lands, wbicb, by tbe exchange, came into tbe possession of tbe plamtiff; and that being designed for tbe construction of a fence upon tbe premises where they then were, and there being no special reservation of them by tbe defendant, they passed by tbe exchange of tbe real estate to tbe plaintiff, and became his properly. The court farther instructed the jury that tbe plaintiff bad established a right to tbe recovery of tbe sum agreed to be paid by tbe defendant, as tbe difference in tbe exchange of lands; and tbe sum so proved to have been agreed upon, being fifty dollars, the jury found a verdict m accordance with it, under tbe instructions of tbe court. To this charge and mstructions of tbe judge, tbe counsel of tire defendant excepted, claiming and insisting that tbe rails in question were not a part of'the freehold, and did not pass with tbe exchange, and that tbe defendant bad a right to waive tbe tort of the plaintiff, in the appropriation of the rails to his use, and set off their value against any claim he established in the exchange of the lands. •

      J. M. Gillet, for plaintiff in error,
    argued that nothing passed by the sale of land, except such as were fixtures, and such only as were distinctively such. To this point the counsel cited the case of Walker v. Sherman, 20 Wend. 636 ; that a fixture consisted of that which had a permanent annexation (42 Law Lib. 160) ; that the rails in question, not being laid into a fence were mere chattels, and could not pass by a sale or exchange of the land on which they were, as part of the realty.

      A. L. Williams, for defendant in error,
    insisted that the rails in question, being strewn along the boundary line dividing the lands of the parties, and designed for a fence in that place, and not having been reserved by the defendant in the exchange of lands, and being situated upon lands which passed to the plaintiff below, in the exchange, were not chattels, but partook of the realty.
   Whiton, J.

The judgment rendered in this case by the circuit court of Fond du Lac county, must be affirmed, although we should be of the opinion that the court before whom the cause was tried erred in the instructions which it gave the jury.

The bill of exceptions shows that the suit was brought by jParsons against Gonklin to recover the difference in value of certain lands which Gonklin had agreed to pay to Parsons. On the trial Gonklin offered to set off the value of certain rails, which he had placed along the boundary line of the land which he had conveyed to Parsons previously to the conveyance, and which were not laid up into a fence, but which had been placed on the line for the purpose of building the fence. The evidence to prove the set-off was objected to by the attorney of Parsons, but the objection was overruled by the court and the evidence admitted. This decision we think erroneous. There was no evidence of a sale of the rails to Parsons, unless they passed by the conveyance of the land, and the right of Oonlclin to prove the set-off was claimed solely on the ground that there had been a conversón of them by Parsons.

Without deciding the question whether a plaintiff, under the circumstances, could waive the tort and sue in assumpsit for the value of the rails, we think that our statute regulating set-ofis will not permit a defendant to set off a demand of this nature. Eev. Stat. 278.

The statute allows a defendant to set off a demand for goods sold ; and we think the better construction of it to be, that he may set off such a demand where there has been an actual sale, and not, as in this case, a mere conversion of the property.

The bill of exceptions further shows that the court instructed the jury that the rails passed by the conveyance from Oonlclin to Parsons as a part of the freehold, and directed the jury to find for the plaintiff Parsons, and a verdict was rendered according to the instructions. It is clear that the instructions given to the jury corrected the error committed, in admitting the evidence to prove the set-off; and it is equally clear that the judgment must be affirmed, although the instructions given to the jury were erroneous, for the reason that the only defense which Oonlclin interposed to prevent Parsons from recovering was the set-off, which, as we have seen, could not avail him.

But we are by no means satisfied that the instructions were wrong. We have been referred to no case which is exactly parallel to this, and can find none ; but the better opinion, we think, is, that where rails have been placed along- the line of an intended fence, for the purpose of being laid into the fence, though not actually applied to that use, they pass by a deed of the land, there having been a manifest appropriation to the use of the land.

Judgment affirmed.


source: Caselaw Access Project

author: JacesoN, J. Stow, O. J.

license: Public Domain

text:
    Woodward et al. v. McReynolds.
    1. Nonsuit. — It is competent for a circuit judge, on the trial of a canse, to nonsuit the plaintiff, where no material evidence has been given for the consideration of the jury; and so, too, where all the facts are admitted, and if his decision is erroneous, it may be corrected on a writ of error.
    2. Adverse possession' — jury.—Adverse possession, in order to be effective, must consist of an occupancy of the lands in good faith, and under the belief that the claimant has a good title; and an adverse possession, which is not characterized with good faith and honesty, is a mere sham, and cannot avail as against the true owner or his grantee. The quo ani/mo, with which possession is commenced or continued, is the test to decide whether the possession is adverse.
    3. Same — pre-emption.—The possession of government lands, under the pre-emption laws, cannot be esteemed as adverse, either as against the government or its grantee.
    (1 Chanel. 244.)
    ERROR to the Circuit Court for Grant County.
    This was an action of ejectment for the recovery of the northeast quarter of section twenty-four, in township six north, of range three west of the principal meridian in the county of Grant. On the trial, the plaintiffs took several exceptions to the ruling of the court, which are fully considered and sufficiently stated in the opinion of this court, to be understood without recapitulating them in the statement of the case.
   JacesoN, J.

This was an action of ejectment brought by the plaintiffs in error, for the northeast quarter of section twenty-four, town six north, range number three west of the fourth principal meridian in Grant county. The plaintiffs filed their declaration, claiming the premises jointly in fee, and issue having been joined upon the pleadings filed, the cause came on for trial before a jury at the last March term of the Grant county circuit court.

The plaintiffs in error, to maintain the affirmative of said issue, introduced the following testimony :

1. A receipt signed by P. Bequette, receiver of tbe land office at Mineral Point, dated February 6, 1846, by which, it appeared that James E. Horn and John Adams Taylor entered at said office, and paid for the northeast quarter of the northeast quarter of section twenty-four, town six north, range three west, also the west half of the northeast quarter of said section.

2.-A like receipt, by which it appeared that said John Adams Taylor, on the 10th day of February, 1846, entered and paid for at the said land office, the southeast quarter of the northeast quarter of said section twenty-four.

3. A deed dated 17th June, 1846, by which said Horn conveyed to said Taylor, his undivided interest and share in the northeast quarter of section twenty-four, town six north, range three west, before described in said certificates.

4. A deed dated 5th October, 1846, by which said John A. Taylor conveyed to Daniel Banfill, the northeast quarter of section twenty-four, town six, north of range three west, the quarter section above described.

5. A deed from Daniel Banfill and wife, dated 5th October, 1846, in which said grantor conveyed said northeast quarter section to Michael and Joshua Woodward, plaintiffs in this suit.

The plaintiffs further introduced one Meeker, who proved the possession of said quarter section of land by said defendant, since the year 1845, the summer of that year ; that he had from that time occupied and cultivated said land ; that the same was situated in Grant county, and, on cross-examination, said witness stated that said McReynolds did not claim as tenant of the plaintiffs, but (in the language of witness) said defendant claimed said land as his own tenant. Other testimony of plaintiffs was introduced to the same purport, and that neither Taylor, Horn, Banfill, plaintiffs, nor any other person, except the defendant, had ever been in possession of said land since the summer of 1845, and that defendant had since that time cultivated and improved the same.

Plaintiffs Raving rested their case, counsel for defendant moved the court to order a peremptory nonsuit, on the ground that said plaintiffs having purchased said land, while defendant held and claimed adversely, the grantors of said premises to said plaintiffs not being in possession at the time of the conveyance to said plaintiffs, that the latter acquired by said conveyance no such legal interest in the land as entitled them to maintain this action against said defendant.

The motion for a nonsuit was sustained by the court. The cause comes up to this court upon a bill of exceptions to the order of the circuit court directing said nonsuit; and, for the purpose of procuring a reversal of the judgment of non-suit, this writ of error is prosecuted.

On the trial at the circuit court, as appears from the bill of exceptions, the counsel for the plaintiff, in resisting the motion for a nonsuit, insisted upon the following points:

1. That the court could not legally order a'peremptory nonsuit, but should allow the evidence to go to the jury. 2. That the fact of the grantors of the plaintiffs being out of possession at the time of conveyance to them, and the adverse' possession of defendant short of twenty years, did not invalidate their (plaintiffs’) title; 3. That if the counsel for plaintiffs were in error in the second position assumed, that, nevertheless, the adverse possession and claim proven to be in defendant was not such as the law recognized and permitted to defeat a deed made pending such adverse possession and claim.

Although it is not necessary to the disposition of this cause that all these points should be considered, yet, as they may frequently arise hereafter in similar cases, it is deemed important to pass upon them here.

As to the first point, denying the legal power of the court to order a peremptory nonsuit, it is certainly not well taken. It is a power, it is true, which courts should cautiously exercise ; but in a case where it clearly appears, from the plaintiff’s own showing, that be bas not made out bis cause of action, to deny this power, or to refuse to exercise it, would ratber binder than facilitate tbe ends of justice.

While it is well settled that tbe question of adverse possession is a question for tbe jury, under tbe instructions of tbe court as to wbat constitutes adverse possession (5 Pet. 438 ; 9 Cow. 576), yet, when all tbe facts in a given case are admitted, and tbe court is called upon, on a motion for a non-suit, to pass upon tbe sufficiency of those facts to sustain tbe plaintiff’s action, it is clearly competent for tbe court to do so. If, however, tbe circuit court, upon such application, decides erroneously in sustaining a motion for a nonsuit, when a nonsuit ought.not to be granted, that decision is subject to be reviewed in this court.

That tbe second point is not well taken, we are also equally well satisfied. Tbe adjudications in many of tbe states, where statutory provisions exist similar to ours, in relation to tbe action of ejectment, and especially in New York, have fully settled tbe question that it is not tbe period of time which the adverse possession bas existed that invahdates or renders inoperative, for tbe purpose of an action of ejectment, a conveyance made while such adverse possession exists, but it is tbe nature and character of that adverse possession.

In tbe case of Livingston v. Peru Iron Co., 9 Wend. 516, Savage, C. J., upon tbe subject of adverse possession, bolds tbe following language: “I consider tbe principle too well settled to admit, at this day, of an argument that a deed, executed by tbe true owner while there is a person in possession of tbe premises, bolding adversely, is void as against such possessor, although it is good as against tbe grantor and bis hens.” This is but an affirmance of the doctrine held in tbe case of Jackson v. Demont, in 9 Johns. 55.

It is further laid down, in tbe case from which we have already quoted (9 Wend. 516), that, “ to prevent a recovery by tbe true owner, there must be a possession in tbe defendant, adverse in its character, and it must have continued for twenty-years. To render a conveyance by the true owner void as to the person claiming by possession, there must also be & possession, and that possession must be adverse in its character, and it must exist at the time of the execution of such conveyance ; but no particular length of possession is necessary to make it effectual for tins purpose.” In the case of Whitney v. Powell, ante, 115, decided at the last term of this court, this doctrine was expressly recognized.

The only remaining inquiry, therefore, in this case, is as to the third point taken by the plaintiffs below, and which we will consider in connection with the other errors assigned, as coming appropriately under the general head, and as involving solely this question, namely: Was the possession which was proven to be in McReynolds, at the time of the conveyance made to the plaintiffs, an adverse possession in contemplation of law ?

Although this is a question not entirely free from embarrassment, yet, as the evidence adduced upon the trial clearly shows that, at the time McReynolds entered upon the land wliich is the subject of this suit, the fee was in the United States, the main obstacle to a satisfactory solution of the question is removed.

We think it is well settled by analogous cases, both in England and in this country, that the United States cannot be disseized by an individual. If so, the possession of McReynolds, while the United States was the owner of the fee, must be presumed to have been a possession in subordination to the title of the real owner ; and consequently was not, in contemplation of law, according to the preponderance of authority, an adverse possession.

If, then, the possession of McReynolds was not adverse against the 'United States, is there anything in the testimony upon the trial to show satisfactorily an adverse possession against the grantees of the United States? Upon careful examination of the authorities applicable to the question, we think there is not.

In all cases where the question arises as to whether a possession is adverse or not, “the tact of possession and the quo animo it was commenced or continued, are the only tests.” Livingston v. Peru Iron Co., 9 Wend. 518; La Frombois v. Jackson, 8 Cow. 596; Smith v. Burtis, 9 Johns. 180; Bradstreet v. Huntington, 5 Pet. 448. To constitute an adverse possession, there must be something more than a mere possession or occupancy; there must be a possession under color of title, or accompanied with a claim of title, “ although it has never been considered as necessary, to constitute an adverse possession, that there should be a rightful title. 9 John. 180 ; 18 id. 44, 355. But the inteut with which an entry is made, by a defendant claiming adversely, must (in the language of Savage, C. J., 9 Wend. 518) be bona fide an entry, believing in good faith that the land is his, and that he has a title.”

This must be regarded as the well-established doctrine at the present time, in most of the states of the Union, upon the subject of adverse possession; and this doctrine, if not further extended in this state, will be found here, as elsewhere, to subserve the ends of substantial justice. The tendency of modern legislation and of modern judicial decisions, especially in this country, is obviously towards a relaxation of the ancient strictness in relation to the alienation of real estate.

The maxims and principles of law, as applied to real property, originating in the policy of the feudal ages, are, in many instances, entirely inapplicable in a country like ours, and particularly in the new states and territories, where there is such a vast public domain, where the spirit of emigration is so rife, and where the genius of our institutions, as well as an enlightened public policy, favors the removal of all unnecessary restraints upon the alienation of land.

In applying the doctrine hero laid down to the case before us, we think it does not sufficiently appear from the evidence, as presented in the bill of exceptions, that the possession of McReynolds was of that adverse character which, according to the later decisions, would avoid the deed made to the plaintiffs in this action.

The case, at most, only shows that McReynolds was on the land, claiming to occupy as his own tenant. But the proof shows that he entered while the title was in the United States, and made his improvements on government land. There is no evidence that he held any title or claim, or color of title in good faith, from the United States, when his possession commenced. His possession 'was merely continued for that time, without interruption, until the commencement of the suit; and we are not aware that a mere continuance of a naked possession, without color of title, can, at least within four or five years, ripen into an adverse possession, in the legal signification of those terms. And without such adverse possession, a conveyance by the real owner must be good and valid in law. There must, therefore, in this case, be a new trial. This decision having been made exclusively upon the proofs presented by the plaintiffs, and the law as applicable to them, it cannot be conjectured what the defense might have been, nor is it intended to indicate any opinion as to the rights of the parties when the defendant shall have had an opportunity to present his defense.

It was assumed, however, upon the argument of this case, that, as the pre-emption laws of the United States, of which the courts will judicially take notice, invite settlers to occupy the public domain, it is a necessary legal presumption, of which the defendant in error is entitled to the benefit, that, when he claimed as his own tenant, he claimed under and by virtue of these laws, which gave him a right to locate upon the public lands; that, in entering, therefore, upon the tract in question, it should be presumed that he entered in good faith, and not as a trespasser.

Regarding, sis we do, the pre-emption laws of the United States with great favor, and disposed to construe them most benignly in furtherance of the purposes for which they were enacted, we allow the defendant the full benefit of this argument. But can it avail him in this case ?

A right of pre-emption is only a right within one year after occupancy under it to purchase the land pre-empted. This is not a claim of title in any sense, but a naked right to effect a purchase and acquire a title. This statement is sufficient to show that the defendant, if holding under a pre-emption, could not have held under a bona fide claim of title. But again: a right of pre-emption upon the public lands must be manifested, Avithin thirty days after entry, by a declaration under oath, which is to be filed in the public land office.

The law, therefore, having made record evidence of preemption necessary, in the absence of such evidence it cannot be presumed.

Judgment reversed.

Stow, O. J.

At the last term we decided, in the case of Whitney v. Powell, ante, 115, that a deed of land by one out of possession was void as against a person holding at the time adversely ; in other words, that a party disseized could not convey by deed so as to give his grantee a right of action against the disseizor. That decision was made after elaborate argument and a careful examination of all the authorities, and on full consideration of all the questions of public policy involved in it. It was the decision of the whole court, all the members concurring; and, until the legislature otherwise provide, it is to be regarded as the law of this state. We decided, at the same time, that, to constitute an adverse possession, the party must have acted in good faith and believed that his title was valid. I am at a loss to discover, in this case, any one feature, except the mere fact of occupancy, by which to recognize an adverse possession. The defendant seems to Rave been a mere squatter on tbe public land ; and, after its sale by the government, to -have continued there without the slightest claim of title or pretense of good faith. If, however, it be true, as claimed for him (but of which there is no evidence), that he originally entered as a pre-emptor, under the license of the act of 1841, his position is still less defensible ; for, in that case, his possession could by no possibility be adverse to the title.

The nonsuit was improperly granted, and the judgment should be reversed.


author: JacksoN, J.

text:
    McCormick v. Robinson.
    1. Justice’s court — jurisdiction.—A justice of the peace has no jurisdic. tion of a suit upon a claim exceeding- fifty dollars; but where the note or claim is indorsed down or credited, so as to leave less than fifty dollars due on it, the justice has jurisdiction, notwithstanding the indorsement was made or credit given without any actual payment thereof.
    2. Sams. — It is the sum claimed that controls the question of jurisdiction , and if the plaintiff indorses on the note, or remits from the account, enough to bring his claim within the jurisdiction of the justice, judgment may be rendered for the balance claimed by him, and he cannot recover thereafter the sum so indorsed or remitted.
    (1 Ohand. 254.)
    ERROR to the late District Court for La Fayette County.
    • This was an action of assumpsit, on a promissory note of fifty dollars, brought before a justice of the peace, for the recovery of the amount due thereon. There was indorsed on the note four dollars and seventy-five cents, which reduced the sum due or claimed thereon below fifty dollars.
    On the trial, the plaintiff proved the execution of the note. The defendant produced no witnesses or evidence, and the justice rendered judgment against the defendant for $45.25 damages.

      The defendant, who is the plaintiff in error in this court, appealed from the judgment rendered by the justice, to the district court of La Fayette county, and the suit was there tried before the late C. J. DuNN, and -by agreement, without a jury. The defendant in error proved the execution of the note by the plaintiff in error, and rested. The plaintiff in error then called a witness to prove that there had never been any arrangement for a credit upon the note declared upon, and churned and assumed that the indorsement made upon the note was fraudulently made by the defendant in error, to .confer jurisdiction upon the justice to entertain the suit which otherwise he could not have had. The court overruled and rejected the proffered evidence, as incompetent to defeat a recovery, and affirmed the judgment rendered by the justice. To the rejection of this evidence the plaintiff took an exception, and upon that the suit was brought into this court.

      J. U. linowlton, for plaintiff in error.

      Robinson & Culver, for defendant in error.
   JacksoN, J.

This was an action of assumpsit, originally instituted by the defendant in error, before a justice of the peace, to recover upon a negotiable promissory note, in these words :

White Oak SrriNGS, March 15, 1847.
“ On or before the first day of June next, 3 promise to pay James E. Davis, or bearer, the sum of fifty dollars.
“ Math’w McCormick.”

Upon the back of which note was the following indorsment:

Received on the within, by turn with Delatour, and agreement with McCormick, four 75-100 dollars.
(Endorsed) “ James L. Davis.
“ May 27, 1847.”

The only question in this cause is, whether a-plaintiff can, by indorsement, reduce a promissory note to a sum less than fifty dollars, and thus give a justice of the peace jurisdiction.

The 9th section (5f the organic law of the territory of Wisconsin (page 25, Rev. Stat.), declares that justices of the peace shall not have j nrisdiction of any matter of controversy, where the title or boundaries to land may be in dispute, or where the debt or sum claimed exceeds fifty dollars.

Under a fair construction of the latter provision of this section, did the “ debt or sum claimed” by the defendant in error, exceed the jurisdiction of the justice ?

The note sued upon, without the indorsement, would have beyond the justice’s jurisdiction ; but the indorsement upon the back of the note, acknowledging the payment upon it of $4.75, reduced the “ debt or sum claimed ” by the defendant in error below fifty dollars.

Had the plaintiff in error a right to inquire into the purpose of that indorsement, in order to ascertain whether the amount indorsed had actually been paid to the defendant in error, or whether it was a mere voluntary relinquishment by him of a part of his debt or claim ?

hr either case, whether the amount of $4.75 had actually been paid upon the note, or whether that sum was voluntarily relinquished by the holder of it, there was no “ debt or sum claimed ” exceeding fifty dollars, requiring to be investigated. If not, there can be no doubt that the justice had jurisdiction.

This is not the case of an open and unsettled account for an amount exceeding fifty dollars, where, although credits are given, which, if allowed, would reduce the sum claimed below fifty dollars, yet no balance having been agreed upon between the parties, the trial would involve an investigation of the whole account.

A party might, in such a case, by leaving out a part of the items of his account, bring his demand within the requisite limit; but he must then lose the portion omitted, as he cannot make it the subject of a separate suit.

Judgment below .affirmed.


author: WhitON, J.

text:
    The State ex rel. The Attorney-General v. Merrill.
    1. Receiver or caeal lauds — territory—state.—The office of receiver of the proceeds of the sale of the canal lands, granted by the United States to "Wisconsin territory, having "been created by the territorial government, he became the trustee of the fund for the benefit of the territory; and upon the organization of the state it succeeded to the rights of the territory in the premises, so that -whatever obligation or duty he had owed to the territory in the premises, he thereafter owed to the state as its successor.
    2. Trustee. — A trustee will not be allowed to contest the rights or claims of the party who created him such trustee, by setting up that there are other claimants to the trust fund, so as to make it necessary for such contesting claimants, as against him, to interplead each other for the establishment of them claims.
    (1 Chand. 258.)
    MOTION for a mandamus.

    This was an application for a mandamus against the defendant under and by virtue of a legislative act of the state, passed March 2, 1849, entitled “An act to prescribe certain duties of the attorney-general, of the state, and the district attorney of Milwaukee county.” See Session Laws of 1849, page 39.

      Merrill was elected by "the joint action of the territorial legislature, receiver of the lands donated by an act of congress to the territory of Wisconsin, to aid in the construction of the contemplated Milwaukee and Rock river canal. The state of Wisconsin on becoming admitted as such, claimed (as would appear by the passage of the act in question) the proceeds of the lands in the hands of Merrill, the receiver. In accordance with the provisions of the act before referred to, the attorney-general procured the affidavit of Beriah Brown, the then acting clerk in the office of the secretary of state, that he had made an examination and search of the records and papers of that office, for the bonds, mortgages and other papers pertaining to the canal lands, and could find none deposited there. He also procured the affidavit of the deputy-treasurer of state, showing that Merrill had not deposited with the treasurer any proceeds of the sale of the canal lands. He also procured the affidavit of the governor of the state, setting forth that Merrill had not rendered to him a final account of the moneys received by him, Merrill, as receiver’.
    Afterwards the attorney-general made his certificate that he had called upon Merrill, and had exhibited to him a certified copy of the act of the legislature before referred to, and demanded that he should forthwith pay over to the treasurer of the state the amount received by him, Merrill, as receiver of the Milwaukee and Rock River canal lands ; and that he also deliver to the treasurer of the state, the books, papers and vouchers belonging to the office of receiver; that Merrill, at the time of such demand, promised to call upon the attorney-general, at a sjoecified day, and give him his final answer as to the demand made by him; but that he .did not call in accordance with such promise, and had done nothing in the premises.
    Upon these papers, Mr. Brown, the attorney-general, made a motion for a peremptory mandamus, to be directed to Merrill, requiring him to deliver to the treasurer of the state all books, vouchers, bonds, mortgages, and other papers received by him in his character of receiver, in accordance with the provisions of the statute before referred to, and also requiring Merrill to render a true account of all the sales made, or moneys received by Mm as such receiver, for wMch he had not already accounted, and to pay over to the treasurer of the state the balance not already accounted for.

      J.. 8. Brown, attorney-general for the Stale.

    The reporter had not the opportunity of hearing the argument of the attorney-general, or of inspecting Ms brief. But he was understood to have assumed and argued, that the donation made by congress, of the lands m question to the territory of Wisconsin, to aid in the construction of the Milwaukee and Eock river canal, and the territory, having become merged in the state by an act of congress admitting it as such, it succeeded to all the rights which the territorial government had, or could have, in the donation made by congress for the benefit of the territory; that, if the government of the United States claimed any interest in the donated lands, it had not asserted any such claim, or taken any steps to reclaim from the receiver, Merrill, either the moneys or securities in his hands for the lands sold, and for which he held the moneys or securities; that the state had, at all events, become the trustee of the government of the United States, as to all claims which it had, and was invested with authority to call the receiver to an account for his stewardship; that the receiver, under this state of the case, could not defend himself from the claim of the state, made upon him by this procedure, by denying its authority or repudiating its interest in the fund claimed to be in his hands; and that the state, as the successor of the territory, had the right, at least, to bring the receiver to an account; and if that were done, the state would be liable to the government for the amount it should recover, provided the funds should be established to belong to the United States.

      A. D. Smith and J. Ü7. Arnold, for respondent,
    aigued that the territory was not bound to become the owner of the canal, though it would have had an interest in it to the extent of the donation made by congress; that, by the resolutions and acts of the territorial legislature, there was a strong attempt to pervert and abuse the trust, and to divert the finid to the use of the territory, regardless of the trust which had been assumed; that in the transit of the territory into a state, the state did not acquire the right conferred by congress upon the territory, unless upon the condition that it (the state) should assume all the duties, liabilities and obligations imposed upon the territory by the act of congress, which it had not done; that if the state could acquire any interest in the lands which remained undisposed of, at the formation of the state, it could do no act to annul or counteract any thing done by the territory, nor control or 131-event the exercise of any functions of any officer appointed by the territorial legislature, in regard to his official acts in office; that Merrill had no appointment under the state government, but held his office of receiver, free-and distinct from any dependence upon, or subserviency to state authority.
   WhitON, J.

The application by the attorney-general, for a mandamus in this case, is founded on an act of the legislature, passed March 2d, 1849, which provides, among other things, that the attorney-general shall demand of Merrill that the amount received by him, as receiver of the Milwaukee and Rock river canal lands, be forthwith paid over to the state treasurer, and that the books, papers and vouchers belonging to the said office of receiver, and relative to the said canal lands, be forthwith delivered over to the state treasurer. That act further provides, that if Merrill shall fail or neglect to comply with such demand for the space of five days, then the attorney-general shall cause a mandamus to issue from the supreme court, etc. There are a number of other provisions contained in the act, to which it is not necessary to refer. We are satisfied that without the act, we have full power over the subject-matter of this application, as well as jurisdiction of the case.

It appears, by the certificate of the attorney-general, that he made the demand upon the respondent about the thirty-first day of March, A. D. 1849 ; and it further appears by the affidavits of the proper state officers, that the demand has not been complied with.

The counsel for the respondent contended, in the argument, that the funds, as well as the other property mentioned in the act of the legislature, are not the property of the state, and that the state officers have no right to the custody or control of them. The foundation for this argument is the alleged fact, that the proceeds of the lands donated by congress, to aid in the construction of the Milwaukee and Eock river canal, belong to the United States ; the property which, by the act above referred to, the respondent was commanded to deliver to the state treasurer, being a portion of those proceeds. This, if I correctly apprehended the position taken by the counsel for the respondent, is the only reason why the command of the legislature is resisted. 'Without examining this position, for the purpose of ascertaining its correctness, it may be well to inquire whether, if well taken, it can avail the respondent in this proceeding. He was elected receiver of the canal lands, by the two houses of the legislature of the territory of Wisconsin; that legislature created the office and prescribed the duties; and he obtained possession of the property in question by virtue of his office. As between him and the territory of Wisconsin; there can be no question in regard both to the legal and moral obligation resting upon him ; authority need not be citecTto show that, by accepting the office and undertaking to perform its duties, he became answerable to the territory of Wisconsin for the manner in which those duties were discharged. This office created a trust which he undertook to fulfil, and to its performance he must be held. He became the agent of those whose officer he was, and having possession of the property, by virtue of his agency, he cannot compel his principal and a third party to implead, to determine their lights to it, while he retains possession; if the territory was in existence, he would have a plain duty to discharge, which could be fulfilled only by delivering to his principal the property in question.

But the territory having ceased to exist, his counsel contended that he can only be compelled to deliver the property to its rightful owner, whom he alleges to be the United States ; that whatever might have been his obligation to the territory. in respect to this property, be owes none to the state of Wisconsin.

This position will not bear scrutiny. The state is the successor of the territory, and if the respondent contracted any obligation to the territory, by accepting the office, he is bound by the same obligation now to the state. If he had executed a bond to the territory, for the payment of money, I suppose it would be admitted- that the state would be entitled to collect the money due upon it; and yet, this proposition is no clearer or manifest than that the duties and obligations of the respondent, created by his official relations to the territory, are due now to the state, as its successor. Const. Wis. art. 14-, §§ 4, 5.

A peremptory mandamus must issue.’


author: Stow, C. J.

text:
    Luning, impleaded with another v. The State.
    1. Evidence — experts.—A witness may be asked questions involving scientific opinions in a matter in which, he is skilled, if they be isolated and not coupled with propositions except those which are purely scientific, and his answers will be proper and competent evidence.
    2. Same — reading oe scientific books. — It is within the discretion of the court to hear or refuse to permit the reading of scientific books on the trial of a cause, but this discretion might be so far abused as to require correction upon a review of the case.
    (1 Chand. 264.)
    ERROR to the Circuit Court for Dodge County.
    The indictment against the plaintiff in error here, was before this court, at the January term, 1849, upon exceptions taken on the trial at the circuit, and the judgment had on such trial was reversed. Ante 215. In accordance with the reversal of this judgment, the same indictment came on for trial in the circuit court for Dodge County.

      The plaintiff in error took several exceptions to the ruling of the court, touching the rejection of the evidence offered by him, in defense, and as to the admission of testimony on the part of the State ; but the following exception seems to be the only one noticed or decided upon by this court. The counsel for the plaintiff put the following interrogatory to James P. Whitney, a practicing physician of the city of Milwaukee, to wit: “Is it not a well ascertained fact in medical science, that the malaria spoken of -will not cross a stream ? to be followed up with proof of the fact from the scientific knowledge of the witness that ditches have been expressly made for the purpose of shutting out a malarious region of country from a salubrious one; and with proof from the same knowledge, that such has been the effect of such ditches; and that such ditches have prevented the crossing of malaria into salubrious regions, where it had previously crossed from such as were malarious.” To the putting this question, or to the answer to be given thereto, the prosecuting attorney for the state objected, because the witness could not testify to anything but facts within his own knowledge. Upon this objection the court gave its opinion that it was well taken, and ruled that the question should not be put. To this ruling and decision the counsel for the state excepted.
    Various evidence was offered on the part of the State, tending to show, in the opinion of the witnesses, that the erection of the dam and the raising of the waters of Cedar creek, at Cedarburgk, had, by means thereof, created disease and an unwholesome atmosphere; and this was sought to be repelled by. the plaintiff in error, by the reading of scientific books upon the subject of malaria, coupled with oral evidence. Touching which proofs, various exceptions were taken, which, inasmuch as the court has not specially noticed them, it is not deemed necessary to enlarge the statement of the case, by enumerating them.

      J. Holliday, for plaintiff in error contended,
    in addition to the exceptions above noted, that the statutes making provision for the erection of mill-clams, and securing such like rights to persons who, under their provisions shall erect them, aré clothed with a protection against a criminal prosecution for the effects or consequences which may follow or ensue the erection, touching the influence it may have upon health, or the annoyance which may result to individuals therefrom; that so far as the jurisdiction of the state is concerned in the exercise of inflicting punishment, for the erection of a mill-dam, its power is functus ojjicio touching all cases where the statutes have been complied with in obtaining the right of building and maintaining it; that the remaining and only right of redress to individuals whose health was affected in consequence of the erection, was a prosecution civilly, for such injury ; that they could not usurp the power or name of the state, to prostrate that, which by the state had been authorized to be constructed, though individual injury should ensue ; and to this point was cited 12 Pick. 478.

      J. 8. Brown and A. T>. Smith, on the part of the State,

    insisted that the statutes giving authority for the erection of mill-dams, did not deprive the state of the exercise of its powers to prosecute criminally, to procure the abatement of a nuisance which was unendurable, or which injuriously affected the health of the neighborhood; that the grant of the right was in subserviency to the injury it might inflict, and if injury to the public ensued, the state should exert its power to relieve the suffering; individuals from harm, especially where health was concerned. To this general doctrine, reference was made to Ros. Ev. 659. And to the point of admitting the evidence of Doctor Whitney, upon which the exception was taken, and in affirmance of the rejection of that evidence by the court, the counsel cited 1 Greenl. 440; 5 Car. & P. 219.
   Stow, C. J.

This is the second appearance of this cause in this court, a new trial having been had since the January term. The only ground on which the former judgment was reversed, was that the opinions of unlearned persons, not physicians, as to the influence the mill-dam in question had in producing the disease complained of, were allowed to go to the jury.

Of the various questions now raised, it is not necessary, nor is it proper, to consider but one — all the others having been distinctly passed upon in the previous decision- — for we wish it to be understood that where a question, properly before this court, has, after argument, been solemnly decided here, it is not open for discussion. The legislature, and not the court, must correct the error, if there be any.

The court below refused to allow the following question to be put to the medical witness, Whitney: “Is it not a well-ascertained tact in medical science, that the malaria spoken of will not cross a stream ? ” to be followed up with the proof of the fact, from the scientific knowledge of the witness, that ditches have been made for the express purpose of shutting out a malarious region of country from a salubrious one, and with proof, from the same Imoioleclge, that such ditches have prevented the crossing of malaria into salubrious regions, where it had previously crossed from malarious ones. This question-was objected to by the counsel for the State, on the ground that the witness could not testify to anything but facts within his own knowledge. For a proper understanding of the question and proposition, it is necessary to examine the previous testimony of the witness.

The question itself, stripped of the accompanying proposition, is a very proper one, and probably would not have been objected to. Similar scientific principles were given in evidence by the witness, and well-settled results were allowed to be shown by medical boobs. For instance: Whitney says, “ if a malarious region was covered with water, so long as it was kept submerged it would prevent the extrication of malaria.” “ Stagnant water in a malarious reeion will not tend to create disease.” “If water becomes stagnant in a district not malarious, there would be no danger from tbe water.” “ The scum spoken of absorbs the very poison that the water might otherwise evolve.” “ It is generally conceded by the medical faculty, that still water will retain malaria.” Now, these are all scientific principles, or ascertained results, and do not vary in character from the question proper, proposed to be put. How far, then, does the accompanying propro-sition modify it ? Was it intended that the witness should testify from his “ scientific knowledge,” derived from medical and philosophical works, as to facts, or rather examples and particular experiments therein related? or was he to speak from his “scientific knowledge,” derived from his personal examination of certain ditches ? If from the latter, the question was in no wise different from many others which were permitted to be answered. If from the former, the testimony would have been mere hearsay. It would have been receiving as evidence of facts, mere recitals from books, not only unaccompanied with the sanction of an oath, but at second hand. The witness appears, by the bill of exceptions, to have been allowed repeatedly to testify to scientific facts, derived from Iris personal experience and observation; as, “from my own observation, I know that the west and northwest are malarious countries.” “ Water, in passing over a dam, or water-wheel, will evolve any volatile particles it contains.” “ During the latter part of the summer, for the past two years, nearly every family at the commencement of the rapids, four miles above Milwaukee, have had fever and ague and remittents.” From this examination alone, aside from the objetion of the district-attorney, “that the witness could not testify to facts not within his own knowledge,” it is manifest that the purpose of the question and proposition was to extract from the witness evidence of fads derived from his “ scientific,” not his personal knowledge; or, in other words, that ho was to swear to facts, the existence of which he only knew from his reading ; and this, upon no principle of evidence, could be admitted. Aside from this, taking this witness Whitney’s testimony as a guide, it is apparent that the question was no way material, as he had already testified that the decomposition, of neither vegetable, aqueous, or animal matter, nor all or either combined, would produce malaria ; thus showing, as far as his testimony was to be relied on, that the disease did not proceed from the mill-pond. The testimony was, therefore, immaterial, and properly rejected. This is the only ground of error that can properly be considered. But as we permitted an argument in regard to the use of what are called scientific books, on a trial, we repeat what we before said on this subject: it is a matter wholly within the discretion of the judge, and is not the subject of a writ of error. An extreme case may be supposed, in which the discretion of the judge, both in the admission and exclusion of bools might be so abused as to require correcting; but this is very far from such a case. A liberal use of medical books seems to have been allowed.

Judgment of the circuil court affirmed.


author: Hubbell J.

text:
    Hardell v. McClure and Williams.
    1. Sale — statute of frauds. — All contracts for the sale of goods, etc., to the value of $50 and upwards, notwithstanding the goods may he intended to he delivered at some future time, or may not, at the tíme of such contract, he actually made, procured or provided, or fit or ready for delivery, or some act may he requisite for the making or completing thereof, or rendering the same fit for delivery, are within the statute of frauds, and void. Accordingly a verbal contract for the sale and delivery of wheat, which was to he reduced to writing on the following day, hut was not, and the wheat being (in part at least) unthreshed, held, within the statute, and void, no part of the purchase price having been paid, and the buyer not having received any part of the wheat.
    (1 Ohand. 271.)

      ERROR to tbe Circuit Court for Milwaukee County.
    This was an action of assumpsit to recover damages for the non-performance of a verbal contract for the sale and delivery of a quantity of wheat, by the defendant, to the plaintiffs. The defendant was, by the agreement, to deliver to the plaintiffs the wheat in question at the Prairieville mills. At the time of malting the contract, it was also agreed that the parties should meet the next day and reduce the contract to writing; but the plaintiffs did not appear at the time appointed, and it was never reduced to writing, and no part of the purchase money was at any time paid, nor any part of the wheat delivered.
    On the trial in the court below, the plaintiffs proved that at the time of making the contract, a part of the wheat agreed to be sold was not threshed, and on the part of the defendant it was proved that all the wheat he had at the-time of making the contract was threshed.
    On committing the cause to the jury, the counsel for the matter defendant requested the court to charge the jury as' a of law:
    1.. That the wheat existing in solido at the time the contract was made, and not having to be raised or manufactured, and though unthreshed, it was a contract within the statute of frauds, and the plaintiffs could not recover.
    2. That if, in the agreement, it was understood that the contract should be reduced to writing the next day, and if the plaintiffs did not attend, as agreed, to reduce it to writing, and the same was never so done, that then the contemplated contract was never concluded or completed, so as to give it effect, and could not be enforced in law.
    Which instructions the court refused to give, but did not instruct the jury that in case, by the negotiation, the contract was not to be complete until it should have been reduced to writing, then, and in that case, there was uo contract at all until reduced to writing. But that a contract may have been made and completed, although at the time there was an agreement to reduce it to writing ; that a failure to reduce it to writing, would not avoid the verbal agreement already made, and that it was for the jury to say, whether the agreement was completed or not, without being reduced to writing.
    To this charge and instruction the counsel of the defendant excepted.
    The jury found a verdict for damages against the defendant, and the cause comes here, on error upon the exceptions taken to the instructions of the court to the jury.

      D. A. J. Upham, for plaintiff in error,
    insisted that, inasmuch as the wheat in question at the time the assumed contract was made existed in solido and was not yet to be produced or created, and though then unthreshed, that unless some consideration was paid, or other act done by way of consideration, it fell within the statute of frauds, and the suit could not be maintained. To this point the counsel citted Qarbut v. Watson, 5 Bar. & Aid. 612 / Atldnson v. Bell, 8 Bar. & Cress. 27 7 ; Watts v. Friend, 10 id. 442 ; Smith v. Surnam, 9 id. 549 ; Powers v. Boss, 23 Wend., 271.
    It was also claimed and insisted that the contract, until reduced to writing, had no existence so that an action could be maintained thereon for recovery of damages, and that the charge of the court was erroneous.

      J. Holliday, for the defendant in error,
    insisted that the staute requiring a memorandum in writing to be made of goods sold above $25 in value, meant goods in solido, and that it extended to both contracts executed and executory for the sale of property thus situated. And to this point was cited 8 Cow. 215 ; 4 Bur. 2101; 6 Strange, 506 ; 8 Johns. 58.
    It was also contended that where, by the terms of a contract, the thing sold, or agreed to be sold, required to be manufactured, or labor bestowed upon it in order to be fitted for delivery, it did not fall within the statute of frauds, or require to be made in writing. 21 Pick. 205 ; 7 Term, 14; 1 Strange, 506; 10 Johns. 864.
   Hubbell J.

This case turns upon the construction which this court gives to the statute of frauds. The act of 29 Charles H, though passed nearly two centuries ago, and long since adopted in most of the states of this Union, unfortunately remains yet a subject of litigation and of doubt, at least in the United States.

The 17th section of the English act is as follows : “ And be it enacted, 'that after the said four. and twentieth day of June (1677) no contract for the sale of any goods, wares or merchandise, for the price of ¿610 or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or something in earnest to bind the bargain, or in ]3art payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged with such contract, or their agents thereunto lawfully authorized.”

The 3d section of the statute of frauds of this state is in substance the same. “Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void unless :

' ,1. A note or memorandum of such contract be made in writing and subscribed by the parties to be charged therewith : or

2. Unless the buyer shall, accept and receive part of such goods, or the evidences, or some of them, of such things in action: or

3. Unless the buyer shall, at the time, pay some part of the purchase money. Stat. Wis. 163.

These acts have never received a judicial construction in the supreme court of Wisconsin. The question therefore remains to some extent open, and by its importance invites a careful scrutiny and a libei-al and sound determination.

The case below was decided upon the weight and authority of the cases which had been ruled in the courts of England, from Towers v. Osborne, in 1724, to Garbutt v. Watson, in 1822; and in tlfe American courts, from Eichenberger v. McCauley, decided in Maryland, inAttü, to Downs v. Ross, decided in New York in 1840. For that long period, embracing the palmy days of the courts of both countries, there seemed to be, if not an established construction, at least a concurrence in the principles upon which the decisions rested, whatever might be the diversity in cases arising in practice. The courts seemed disposed, for reasons perhaps more nice than wise, to give the' statute a strict construction, and not to hold any case within it, unless the property which was the subject of sale was in a shape or condition for delivery at the time of the making of the contract. Hence all contracts for a sale of property which had to be changed in form, or upon which work and labor had to be bestowed by the vendor to prepare it for the acceptance of the vendee, were treated as contracts for work and labor, and held not within the statute.

Towers v. Osborne, 1 Strange 506, was the first and leading case in England on this subject. This was a contract for a chariot, which was to be made and delivered at a future day, and Peatt, C. J., ruled it not within the statute.

The next case was Clayton v. Andrews, 4 Burr, 2101, which was a contract for wheat then unthreshed. Lord MaNSíteld here approved the principle decided in Towers v. Osborne, and held the contract for the sale of such wheat not within the statute upon the same principle, but assigned as a reason, that it was a contract to be performed in futuro.

In Rondeau v. Wyatt, 2 H. Black, decided in 1792, the court disapproved of the reason assigned by Lord MaNS-field, and held that a contract to deliver goods at a future day was within the statute, and that the mere fact that a contract was executory did not save it from the statute. In this case, however, though the reason assigned by Lord MaNSKIElu, in Clayton v. Andrews, was held erroneous, bis Lordship’s decision was review and sustained, upon the principle that the contract embraced work and labor.

Graves v. Buck, 3 Maule and Sel. 178, followed in 1814, wherein the court of King’s Bench re-affirmed the former decisions, and held that a contract to deliver oak pins, which were then in the slab, and had to be cut out before delivery, was not within the statute.

In the state of Maryland, as early as T7“66, in Eichenberger v. McCauley, 5 Har. & John. 213, Mr. Justice Yates held that a contract to deliver wheat, then unthreshed, was not within the statute ; herein anticipating by one year the ruling of Lord MaNSEield on a precisely similar contract in England.

The same doctrine was adopted by the courts of New York. In Cruikshank v. Burrell, 18 Johns. 58, SpeNCER, C. J., reviews the English cases, and upon their authority holds a contract for a wagon, not yet made, not within the statute. The same court, in Sewall v. Fitch, 8 Cow. 215, held a contract for nails, which had to be cut out of the iron before delivery, without the statute; and in Bennett v. Hull, 10 Johns. 364, and Jackson v. Covert, 5 Wend. 139, the principle of Clayton v. Andrews 4 Burr, 2101, was considered and approved, though in these cases the contracts being for the mere delivery of articles at a future day, and no labor to be performed to prepare them for delivery, the contracts were held not within the statute. The same principle was asserted by the learned court of Massachusetts, in Mixer v. Haworth, in 21 Pick., where the purchase of a buggy-wagon, which was at the time nearly completed, but required lining and some trifling additions, was held not within the statute, on the strength of English cases.

So far had the law on this important subject been settled, during a-period of a century and a half, when the court of King’s Bench, in Garbut v. Watson, 5 Barn. & Ald. 613, asserted the doctrine that all contracts were within tbe scope and intent of the statute, where the result of the bargain was a sale and transfer of the chattels. That was a contract for Hour, which had to be manufactured or ground from the grain before delivery. The principle of the past cases was fully discussed and considered, and the decisions of Abbott, C. J., Lord MaNSíteld, and Lord Ellenbokough were, by a full bench, overruled. Atkinson v. Bell, 8 Barn. & Cress. 277, followed in 1828, and Smith v. Surnam, 9 B. & C., in 1829, both adopting the new construction, and in similar cases.

In the state of New York, Downs v. Ross, 23 Wend. 271, was decided in 1840, which was a contract for the delivery of wheat, unthreshed at the time; and a majority of the court, in a poAverful argument by Justice BeoNsoN, sustained the new English doctrine, while Mr. Justice CoweN, with his usual learning and ability, dissented, holding that the weight of authority should govern. No other courts of the United-States are known to have departed from the original ground. In England the conflict between the older and more recent decisions was settled in-1830, by the statute of 9th Geo. IV, which enacts (chap. 14, § 71), that “ the provisions of the statute of frauds shall extend to all contracts for the sale of goods to the value of ¿610 or upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, 'procured or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fitfor delivery.'"

Thus, this vexed question is set at rest in England. In this country, without further statutory provisions, it is impossible to foresee how the majority of courts will incline. Looking to the intent of the law, which was declared in the preamble to be “ for the prevention of frauds and perjuries,” and construing its provisions by the well-known meaning of the language employed, it must be admitted that the earlier decisions confine it to a narrow and technical scope. If the policy of the act was not wholly misconceived, the courts were bound to give it a fair and liberal construction ; and for this reason, it seems to us that the rule of Garbut v. Watson should have been adopted in the first instance ; and although in England it has been deemed necessary to untrammel the bench from the binding force of precedents of long standing and high authority, by a solemn act of parliament, yet, in this young state, where the question is presented somewhat as a case of first impressions, this court is at liberty to adopt the rule which seems most in accordance with reason and sound public policy. We are all inclined to the opinion that the decision of the court below in the present case had the better authority, but not the better reason on its side, and we all believe we shall establish a more intelligible rule, better consult public policy, and more correctly expound and apply the law itself, by reversing that decision and adopting the rule of the English statute, than by attempting to enforce the earlier decisions. We regard the act of 9th Geo. IV, as laying down no new principle, covering no new ground, but as containing, in remarkably clear, simple and explicit language, the true construction of the original act. We desire to adopt that language as the construction which this court will give to the 3d section of the statute of frauds of this state. We deem it far more important that a general statute of pervading application to business transactions should be clearly defined and well understood, than that any series of decisions, however ancient or respectable, should be arbitrarily pursued.

The judgment of the court below is reversed, with costs.


author: Larrabee, J.

text:
    Barber v. Barber.
    1. Divorce a mensa et thoro. — A divorce a mensa et thoro does not destroy the relation of marriage, but merely suspends some of the obligations arising out of it. It ■will not enable the wife to sue her husband; nor can the objection be deemed obviated by the consideration that she sues by her yyroehem ami.

    2. Same — decree eor alimony in another state. — A decree for alimony on a divorce, in another state, is not a judgment, so that an action can be maintained on it; it being in its nature temporary, and liable to be modified or annulled by the court which granted it, it has not the force and effect of a judgment at law.
    3. Alimony. — The court making a decree for alimony can alone enforce its performance.

    (1 Chand. 280.)

    ERROR to the late District Court for Milwaukee County.
    This was an action by the plaintiff in error by her nerd; friend. The declaration set forth that the plaintiff had been divorced a mensa et thoro of the defendant, her husband, by an order or decree made by the vice-chancellor of the fourth circuit of the state of New York, on the complaint of the plaintiff in error, and that by the said order or decree, the defendant was ordered and adjudged to pay to the plaintiff, for her support and maintenance, $3 60 a year, in quarter-yearly payments, as and for her permanent alimony from and after the first day of July, 1844, during her fife, and that the sum of $960 of such alimony be forthwith paid, and that the plaintiff have execution thereof. The plaintiff in error claimed under the said order or decree the sum of $960.
    To this declaration the defendant in error demurred, and assigned for causes : 1. That the declaration shows that the plaintiff is a feme covert, the wife of the defendant. 2. That the judgment or decree is not such an one as can be prosecuted in this form of action. 8. That it does not appear from the said declaration that the said court of chancery had jurisdiction of the person of this defendant, or that he was served with process, or bad notice of tbe said suit, without wbicb the suit cannot be maintained.
    The district court sustained the demurrer, and rendered judgment against the plaintiff in error. To reverse this judgment the writ of error in this cause was brought.

      Holliday & Brown, for plaintiff in error,
    argued that the action below could be maintained to recover alimony by the wife as against the husband where she had been divorced a mensa et thoro, where such alimony had been ordered and decreed by a court of another state having jurisdiction of the matter, and that such action might be based upon the order or decree, and to this point was cited 3 Caines, 22 ; 9 Cow, 494 ; 13 Wend. 467 ; 9 Serg. & R. 252 ; U. S. Digest, 514.

      M G. Ryan, for the defendant in error,
    argued that a divorce was a matter of special jurisdiction, and that to mam-tain a suit for alimony against the husband by the wife, the jurisdiction of the court, granting such divorce, it having been done in another state, should have been averred in the declaration, and to this point cited authorities, to wit: 8 Wheat. 697 ; 3 Barn. & C. 52 ; 5 Eng. Com. Law, 225 ; that debt does not He on a decree in chancery on a decree for alimony was cited 9 Greenl. 140 ; that the wife divorced simply a mensa et thoi'o could not maintain an action against her husband for alimony or other cause ; that such a divorce did not so sever the matrimonial tie as to give to the wife a right of action against her husband, either in her own name or by jprochien ami. To this point was cited 10 Eng. Com. Law, 84.

       Subsequently a suit in equity was brought in the district court of the United States for the district of 'Wisconsin, to recover alimony adjudged due by the decree upon, which the foregoing action was founded, and the complainant had a decree, the suit having been instituted in her name by her next friend. Axl appeal was taken to the supreme court of the United States, and the decision of that court will be found in 21 Bow. (U. S.) 582. That court disclaiming altogether any jurisdiction upon the subject of divorce, or the allowance of alimony, either as an original proceeding in chancery, or as an incident to a divorce a vinculo or a mensa et thoj'o, still held that where a court of competent jurisdiction in another state decreed a divorce a mensa et thoro, allowing alimony to the wife, and the husband removed to Wisconsin for the purpose of placing himself beyond the jurisdiction of the court which could enforce it, without having paid any part of it, or leaving any estate out of which it could be realized, the wife could sue by her next friend in a court of the United States having equity jurisdiction, to recover the amount of money decreed by the state court.
      In that case it was further held, that a wife under judicial sentence of separation from bed and board was entitled to take a domicil for herself, different from that of her husband, and that she might, by her next friend, sue her husband for alimony which he had been decreed to pay as an incident to such divorce, or when it had been given after such decree upon a supplemental bill. Taney, C. J., and Daniel and Campbell, Justices, dissentmg.

   Larrabee, J.

The. demurrer is well taken. After many decisions, which overthrew the doctrine of the common law, it was at last held, after a full argument before the twelve judges, that a feme covert could not sue or be sued as a feme sole, even though she was living apart from her husband, with Ms consent, and upon a separate maintenance secured by deed. Marshall v. Button, 8 Term, 545.

It is also a settled doctrine that a divorce a mensa et thoro does not destroy the relation of marriage, but merely suspends for a time some of the obligations arising out of that relation. Lewis v. Lee, 8 Barn. & C. 291.

This is the doctrine of the English courts, though in this country it does not appear to be well settled. It is true that in the case of Dean v. Richmond, 5 Pick. 461, it was held that a wife divorced a mensa might sue and be sued in an action at law as a feme sole, for property acquired or debts contracted subsequently to the divorce; and Chancellor Kent, in his Commentaries (2 Kent, 158), regards this as the more reasonable doctrine. But this decision is based upon the fact that at the time there was no court of chancery in Massachusetts, and hence an adherence to the strict rule would operate as a complete denial of justice. The decision in this view was no doubt a very proper one, but here there is no necessity for such a departure, and we are disposed to maintain the doctrine of the common law. The action in this case being in the name of a p-ochien ami, does not obviate the difficulty.

Another ground of demurrer is, that an action of debt does not he to enforce a decree in chancery.

Without going into an examination of the general doctrine, it is sufficient for the present purpose to inquire into the force and effect of a decree for alimony in the state of New York, where this decree was made. Has it the same force as a judgment at law? We think clearly not, as the statute provides (2 N. Y. Rev. Stat. 148), that the husband shall be required to give reasonable security for the performance of the decree, and, in case of his neglect or refusal, authorises the court to sequester his personal estate, and the rents and profits of his real estate.

There is no provision which declares in so many words as does our own, that decrees shall have the same force and-effect as a judgment; but the general provision in relation to decrees for the payment of any debt, damages, etc., makes them a oharge upon lands, tenements, real estate and chattels real, the force of a decree for alimony thus being an exception to the general provision.

The decree for alimony is a specific one for the support of the wife, and in its nature distinct and temporary. It may be increased as the necessities of the wife may require, and the abifify of the husband permit, or it may be diminished or dissolved. Hence it cannot be regarded as a decree absolute for the payment of a sum certain, nor has it the force and effect of a judgment at law. It belongs to that numerous class of decrees which, from their very nature, cannot be enforced in any other than a court of chancery, where one exists. Elliot v. Ray, 2 Blackf. 31.

We are therefore of opinion that the action does not lie in this case.

. The judgment is affirmed.


text:
    May and Daniels v. Keep.
    1. Certiorari — supreme court. — The supreme court has authority to grant a common law e&i'tiorari returnable before it, to the judgment of a justice of the peace, and will allow the writ where an execution has issued on the judgment returnable before the next term of the circuit court in that county, security being first filed with the clerk.
    2. Same. — Upon application for such writ, cause must be shown why the application is made here, and not to the circuit court.
    (1 Chcmd. 285.)
    THIS was a motion made before the supreme court at the Juue term, 1849, for the allowance of a common law certio-rari, to remove the proceedings and judgment of the justice before whom the same was tiled, to this court. This motion was founded upon a petition showing a judgment rendered against the applicants by the justice, and also the errors in the proceedings and judgment before Mm, and showing also an an excuse on the part of the defendants, for not having availed themselves of the benefit of an appeal from the judgment, to the circuit court. The petition prayed the allowance of the common law certiorari, by this court, because the circuit court within the jurisdiction of wMch the matter arose, would not be in session before the execution already issued on the judgment would be returnable.

      J, A. Sleeper, in support of the motion,
    cited the following authorities : Sess. Laws of 1844, \ 4, p. 17 ; §§ 3 and 8 of art. 7, of the Const.; 5 Wend. 98; 7 id. 667, 508; 7 Cow. 587 ; 9 Wend. 433.
   The court determined that it had the power to authorize the issuing of the writ; but in ordinary cases would not feel itself bound to allow it indiscriminately, where there was an opportamity of making application to a circuit court at a term of such a court, and in accordance with this view of the case ordered that the writ issue in case a bond should be executed and filed with the clerk by the parties making this motion.