author: Hubbell, J.

text:
    Fisher and another vs. Otis and others.
    1. Mortgage — Assignment. — A mortgage given to secure the payment of a note may be extinguished by the payment of the note, or passed to another by its transfer or indorsement, and if the note be a negotiable one and transferred to a bona fide purchaser, he will take' it and the mortgage interest in the land which attends it, free from all equities existing between the original parlies thereto. See post, Mwrtineau v. McCollum; Crosby v. Roub, 16 Wis., 616; Carpenter ■». Longon, 16 Wall., 271; Kennieott v. The Supervisors, id., 452.
    2. Same. — An assignment which purports to transfer, assign, set over and convey to the assignee, all the mortgagee’s right, title, interest and estate in the mortgaged premises and the debt and note, secured by the mortgage with the rights, etc., accruing therefrom, subject, however, to all the rights of 0., the mortgagor in and to the same will render the note and mortgage in the hands of such assignee, subject to all equities between the original parlies, whether he purchased for value or had notice of them or not.
    3. AnsweR. — Where a bill calls for an answer upon oath, the answer, so far as it is responsive to the matters contained in the bill, will prevail, unless overcome by the testimony of two witnesses, or by one and strong corroborative circumstances.
    4. Penalty — Usury.—Where a note was payable one year after date, without interest, but stipulated for interest after due at a higher rate than that allowed by law: Held, that such rate of interest must be regarded as a penalty for nonpayment, and the note was not thereby rendered usurious.
    5. Evidence — Burden oe Proof.— Where it is shown that a mortgage given for a gross sum was in reality given only as a security for ad-vanees to be thereafter made; in an action to foreclose the mortgage, the burden of proof is on the complainant to show the amount of such advances.
    6. CONTRACT — Interest. — A. note and mortgage drawing twelve per cent interest executed in a state where such rate of interest is allowed by law, is valid in the state where it was executed, although made payable in a state in which such a rate of interest would render it usurious.
    7. Same. — The lax loci contractus controls upon all questions as to the validity of a contract, and a contract valid by the laws of a state or country where it was made, is valid everywhere, unless it be shown that the parties intended to contract with reference to and be governed by the law of some state or country where it is to be performed, and by which the contract would be.invalid.
    APPEAL from the Circuit Court for Racine County.
    The case was that Fisher and Robinson filed their bill in equity against Otis and others to foreclose a mortgage executed by Otis and wife to James S. Wiggin, securing the payment of a promissory note, given by Otis to Wiggin, for $15,000, payable one year after date, with interest after due at the rate of twelve per cent., payable semi-annually 'at the city of Boston, Mass. Wiggin assigned the note and mortgage to the complainants before the note became due, but the assignment of the note and mortgage was made expressly “ subject, however, to all the rights of the said Otis and his wife in and to the same.” It was agreed that Otis had paid on the note and mortgage $11,200, and the complainants claimed a decree for the balance, computing interest as specified in the note.
    The defendant Otis in his answer, which was a sworn one, denied that at the time of the execution of the note he owed Wiggin $15,000, and alleged that the note and mortgage were given to secure a balance of account and future advances, and insisted that the note was usurious by the laws of Massachusetts where it was to be paid, there the highest lawful rate of interest being six per cent.
    The complainants claimed to be bona fide purchasers of the note and mortgage, without notice of any defect in or defense against them, and a question was also made, whether there was sufficient testimony to overcome the allegations of the answer of Otis, stating that the note and mortgage were given mainly for future advances and his account as to the amount due thereon; also whether the burden of proof was on the mortgagor or mortgagee in case of a mortgage for future advances, to show the amount of such advances.
    The court found from the answer of Otis and other proofs, that he was indebted to Wiggin for the difference in the amount of an invoice of goods at Detroit and at Boston, $811.55, that Wiggin advanced to him at Southport, Wisconsin, where the note and mortgage were executed, $9,000, and also subsequently the further sum of $2,162.73 on a letter of credit, and amounting in all to $11,974.28.
    Upon this basis the circuit court made its decree,, allowing interest on the advances at seven per cent, from the time when they were respectively made, which, after deducting the admitted payment, left due the complainants $135.77, for which sum and costs a decree of foreclosure was entered, and the complainants appealed.

      Bond, Lovell & Evans, for appellants:
    1. The complainants having purchased the note before it became due, they are not affected by any equities existing between the original parties. The rule at law on this point is well settled. Chitty on Bills, 90; Baker v. Arnold, 8 Gaines, 279; Raymond v. Hess, 13 Johns., 52; Gone v. Baldwin, 12 Pick., 545; Thurston v. McGoun, 6 Mass., 428. It is also a settled maxim that equity follows the law and enforces the same rules in regard to negotiable paper. Story Eq., §§ 64, 64 c; Philips v. Thompson, 2 Johns. Ch., 418 ; Murray v. Lylburn, 2 id., 443 ; James v. Morey, 2 Cow., 247 ; Bay v. Coddington, 5 Johns. Ch.,54; S. G, 20 Johns., 636; McNiel v. Beard, 6 Munf., 316; Lo-max v. Picot, 2 Rand., 217, 247; Hunt v. Sandford, 6 Yerg., 387; 3 Leigh, 597; Riddle v. Mandeville, 5 Cranch, 322. As a general rule the assignee of a chose in action takes it subject to all equities between the original p arties. But negotiable paper constitutes an exception. Powell on Mort., Rand’s ed., 908, 908 a, and note. Between persons equally innocent he that has the legal estate or interest will hold. 13 Wend., 573; Story’s Eq., § 66 c. A mortgage is a mere incident to the debt, is controlled by the debt, and an assignment of the debt carries with it all the rights of the mortgagee, even though the assignee did not know of the existence of the mortgage. Powell on Mort., 142, 671, 1115; Southern v. Mendun, 5 N. H., 420; Ellison v. Daniels, 11 id., 274, 9 id., 69; Green v. Hart, 1 Johns., 580; Jackson v. Blodgett, 5 Cow., 202; 4 B. Mon., 417. The interest of the mortgagee in the land is a mere chattel security for the debt, and inseparable from it, and cannot be transferred, except in connection with the debt. 6 Johns., 290; 11 id., 534; 15 id., 319; 5 N. JEL, 430; 4 Rawle, 255. The rule in chancery as to setoffs is the same as at law. Rev. Stat., 414, 505; Law of Setoff, 189.
    2. The answer set up by respondent in no wise is sustained by the evidence. The evidence of O’Connor and Willis is inadmissible under the stipulation. But if admitted, it does not support the case set up by respondent Otis. Evidence of negotiations prior to the conclusion of a contract is not proof of the contract or agreement itself. Chitty on Cont., 108; Taylor v. Biggs, 1 Peters, 591. The testimony of Wiggin is conclusive in favor of complainants.
    3. The contract is not usurious. Interest did not accrue until after the note became due. The maker consequently could have avoided usury by paying the note when it became due. Ord. on Usury, 48. The note having been executed in Wisconsin and secured by mortgage on lands in Wisconsin, the parties might legally stipulate for the highest rates of interest allowed by the laws where the contract was made. Chapman v. Robertson, 6 Paige, 627; Depau v. Humphreys, 20 Martin, 1; Story on Conf. Laws, secs. 291 to 307.; 2- Kent, 460 and note, et seq.; Sherman v. Gassett, 11 Law Rep., 304; Van Schaick v.

      Edwards, 2 Johns, cases. It is a general rule that negotiable paper of every kind is construed and governed as to the obligation of the drawer or maker, by the law of the country where it was drawn or made. 2. Kent’s Com., 460 and note, and authorities there cited. The law of Massachusetts does not make the contract void, but only inflicts a penalty, and penal laws are local. Story Conf. Laws, sec. 619 et seq.; and the courts of one state will not enforce the penal laws of another. Gale v. Easton, 7 Met., 14; 11 Law Rep., 318.

      Pettit & Stodda.rd, for appellee :
    1. The note and mortgage are usurious. The place of the performance of this contract, by the express terms of it, is Boston — and its validity, nature, obligation and interpretation, is to be governed by the laws of Massachusetts. The negotiations for the loan to Otis were commenced in Boston, where Wiggin resided, he, knowing that Otis could not raise the money he needed, unless he submitted to the extortion of $1,800, proceeded with Otis to Southport — advanced $9,000 there — took this note of $15,000 payable to Wiggin’s order, with interest after due “ at the rate of twelve per cent, per annum, payable semi-annually, at the city of Boston, Massachusetts.” This obligation must be tested by the laws of the country, where the same is made payable, though actually executed and delivered in Wisconsin. Fanning v. Oonsequa, 17 Johns., 511; McCandlish v. Cruger, 2 Bay (S. C.), 377; Story, Conflict of Laws, 233 and 280; Sherrill v. Hopkins, 1 Cow., 103-8; Andrews v. Herriot, 4 Cow., 510 and note; Andrews v. Pond, 13 Petei’s, 65; 2 Kent., 459 to 461; Gen'l Ins. Go. v. Belt, No. 6 Western Law Journal, 261; Kentucky v. Bassford, 6 Hill, 526; Thompson v. Ketchum, 4 Johns., 285 and note, 288; Smith v. Smith, 2 Johns., 235, 240; 2 Burr, 1078; Van Schaick v. Edwards, 2 Johns, cases, 355; Schofield v. Day, 20 Johns., 102. Interest in Massachusetts is limited to six per cent.; an excess stipulated for, subjects the party enforcing the contract to a forfeiture of threefold the whole amount of interest — which, in this case, amounts to thirty-six per cent. R. S. Mass., ch. 35 ; Sumner v. Williams, 1 Met., 398 ; Parker v. Bigelow, 14 Pick., 436. And this court should make such .deduction from the complainant’s claim. Little v. Pogers, 1 Met., 108. The extent of advances made to Otis on this note was hut $11,200; a forfeiture of thirty-six per cent, on that sum is $4,032, leaving balance $7,168. The complainant, however, has received (as appears from this case) the sum of $14,896. The equities of the case are in favor of the appellee.
    2. Aside from usury, how much had Otis received November 1, 1846, and how much was then due ? The extent of consideration proved, aside from the answer, is. $9,000 advanced at Southport, and to warrant the decree appealed from, the court below must have allowed to complainants, not only the difference between the invoice of the goods at Boston, and the price for which Wiggin sold them to Stimpson ■ at Detroit, which amounted to $1,031.55, but a large amount of other matters. There is no legal or moral obligation that Otis should pay any portion of the $1,031.55. By the terms of the then existing contract between Wiggin & Go. and Otis, the merchandise was to remain under .the control of Wiggin & Co. There was no sale of the goods to Otis. R. S., 338, § 3. Otis had no right of property in the merchandise, and when the promise was extorted from him, he was virtually under duress. Outwater v. Bodge, 7 Cow., 36. The promise to assume that loss was extorted from Otis by taking advantage of his necessities, under the guise of friendship. Administrators of Hough v. Hunt, 2 Ham., 501. And to take advantage of one’s necessities is as bad as to take advantage of one’s weakness. McCouts v. Bee, 1 McCord’s Ch., 390; Wheelan v. Wheelan, 3 Cow., 537; Brice v. Brice, 5 Barb., 533-540. Equity will not enforce a contract grounded in fraud, circumvention or misrepresentation. Seymour v. Delancey, 3 Cow., 445; Osgoocl v. Franklin, 14 Johns., 527; Livingston v. Peru Iron Co., 2 Paige, 393; McAllister v. Barney, 2 Hayw., 290. Therefore there was no legal or moral obligation on the part oí Otis to make up such deficiency — and the giving of the note pro tanto, is void. Geer and Wife v. Archer, 2 Barb., 420; Slade v. Halstead, 7 Cow., 822 ; Schoonmalcer v. Boosa, 17 Johns., 801 — 804; Bank of Troy v. Topping, 9 Wend., 272; Hall v. Farmer, 2 Comst., 558-7; Rev. Stat., 388, § 2, sub. 2. The cause and true consideration oí the note and mortgage can be shown by parol, to be other than as expressed by the instruments. Jackson v. Brown, 7 Cow., 18-18; Jackson v. Stackhouse, 1 id., 127 ; Whittick v. Kane, 1 Paige, 202 ; The People v. Fleming, 12 Wend., 246; Gross v. Huntley, 13 id., 386 ; Payne v. Cutler, 13 id., 605 ; Gil-lett v. Campbell, 1 Denio, 520. Therefore the difference between the invoice at Boston, and sale by Wiggin to Stimpson, at Detroit, being $1,031.55, ought not to be charged to Otis, nor allowed in this suit against him.
    3. The bill required an answer under oath — and it being so made, and responsive to the bill, it is conclusive, unless disproved by two witnesses — or by one, with pregnant circumstances. Stafford v. Bryan, 1 Paige, 242; S. G, 3 Wend., 535; Woodcock v. Bennett, 1 Cow., 742-4 and note; Cla-son v. Morris, 10 Johns., 540-1, 543; Murray v. Blatchford, 1 Wend., 595-6; 1 Edward’s Ch., 442; 2 Johns. Ch., 92; 6 Wheat., 468; 3 id., 527. The bill states that Otis, “by his note, became justly indebted to James S. Wiggin, of Boston, for value received,” in the sum of $15,000, and charges that the “ money mentioned in the note is due and owing and still remains unpaidand prays that the complainants “ may be paid the full amount of said sum.” Otis is bound to answer the charging part of the bill, as well as the stating part. Smith v. Clark, 4 Paige, 368. Otis, answering on oath, denies that he ever became justly indebted to Wiggin, in the note, beyond $10,352.17 or $11,163.72, at most, and he discovers fully the whole transactions out of which the note and mortgage arose. The answer is strictly responsive to the bill. Dunham v. Jack.son, 6 Wend., 22; Hopkins v. McLaren, 4 Cow., 667-677; Jack

      son v. Hart, 11 Wend., 843-852-3. Wiggin is an incompetent witness. His deposition should be suppressed on the ground of his interest. Jaclcson v. Stackhouse,"1 Cow., 126; Fuller v. Tovmsend, 5 Denio, 184. And the defendants are entitled to have the bill dismissed upon the pleadings alone, without looking into the proofs. Jaclcson v. Harp, 11 Wend., 353, citing Smith v. Brush, 1 Johns. Ch., 459; 6 Yesey, 183; 18 Yesey? 12, 336; 2 Atk., 19. Besides, the answer is sustained, in every material statement, in regard to the cause and consideration of the note and mortgage, by the depositions of O’Connor and Willis, witnesses to the transaction. ■ These proofs, aside from the answer, establish the fact that but $9,000 of the $15,000 note and mortgage had been advanced to Otis, at the time they were made and delivered to Wiggin. That $6,000 thereof was to cover advances to he made in futuro, of which but about $2,000 were advanced thereafter. It being established that the note and mortgage was to secure the $9,000 paid, and “ to secure sums to be advanced ” {James v. Morey, 2 Cow., 292), the onus prohandi that such advances were in fact made, is cast upon the complainants; it is not for the defendants to prove the negative, that they were not made. Gillett v. Gamphell, 1 Denio, 522; Costigan v. Gould, 5 Denio, 290-295. The acts and declarations of Wiggin, during the negotiations, and immediately afterwards, being a part of the res gestee, are admissible evidence against the complainants, his assignees; even the declarations of an agent are evidence. McOormiclc v. Bacon, 10 Wend., 104; Thallhimer v. Brinckerhoff, 6 Cow., 90-100; Mott v. Kiti, 10 Johns., 478; Fenner v. Lewis, 10 Johns., 38-44; Jackson v. Myers, 11 Wend., 534-7. The interest of Wiggin is identical with that of the complainants; his declarations, though made long after the making of the note and mortgage, are admissible, and the onus of proving a consideration paid by complainants for the note and mortgage lies on them. Brisbane v. Pratt, 4 Denio, 63, and authorities cited.
    4. A mortgage is a mere security before foreclosure. Astor

      v. Hoyt, 5 Wend., 615-16; Edwards v. Farmers' Fire Ins. Co., 21 id., 467, 491; Jackson v. Myers, 11 id., 587.
    The note and mortgage are construed as one instrument, and as such, the note is not commercial paper. Coddington v. Davis, 1 Comstock., 186; Cornell v. Todd, 2 Denio, 130. A sealed note is not negotiable. Clark v. Farmers’ Man. Co., 15 Wend., 256. The assignment of the note or debt carries the mortgage as an incident. Paitison v. Hull, 9 Cow., 747; Jackson v. •Blodgett, 5 Cow., 202 ; Wilson v. Troup, 2 id., 196 - 281; Run-yan v. Mercereau, 11 Johns., 538 and. note. But the assignment of the mortgage, severed from the debt, passes nothing; it is gone for all purposes, for, “ once a mortgage, always a mortgage.” Clark v. Henry, 2 Cow., 324; Pattison v. Hull, 9 Cow., 747; Jackson v. Blodgett, 5 id., 206; Langdonv. Buel,9 Wend., 84; Jackson ex dem v. Bronson, 19 Johns., 326. The assignment by' Wiggin, of June 19, 1849, to complainants, is of Wiggin’s right and title ” to “ certain premises ” described in “ a certain deed ” (the mortgage in question) “ under the same conditions as are contained in said deed,” “ and all my right,” etc., “ in the debt and note ” (describing it) “ which is secured by said conveyance to me’’and “ subject to all the rights of Otis unto the same as specified therein,” etc. This is not the bona fide purchase of commercial paper, but an assignment of the mortgage and the note, and complainants are now seeking their remedy on the mortgage, and as such are subject to all the incidents, equities and defenses against that remedy. Codding-ton v. Ray, 20 Johns., 637; Root v. French, 13 Wend., 573; Payne v. Cutler, 13 id., 606 ; Pendleton v. Fay, 2 Paige, 205-6; Brisbane v. Pratt, 4 Denio, 64; Jackson v. Myers, 11 Wend., 538. The personal and commercial relations between Wiggin and complainants were such as to lead to the violent presumption, that they were cognizant ■ of the whole consideration of the note and mortgage — at least sufficient to throw the onus on complainants to show that they were bona fide purchasers, had they pursued their legal remedy on the note, instead of foreclosing the mortgage. Besides th'ey purchased with notice of the defense. Whittick v. Kane, 1 Paige, 202-5; Jackson v. Yan Valkenburg, 8 Cow., 260 ; Webster ■v. Wise, 1 Paige, 819; Corning v. Murray, 3 Barb., 654; -Root v. French, 13 Wend., 572. The assignee of a mortgage takes it subject to all the equities subsisting between the mortgagor and mortgagee. James v. Morey, 2 Cow., 246; Murray v. Qroveneur, 1 Johns. Cas., 438 ; Clute v. Robinson, 2 Johns., 595; Bank of Niagara v. Roosevelt, 9 Cow., 409 ; Stafford v. Yan Rensselaer, 9 Cow., 316 ; Chamberlain v. Day, 3 Cow., 353 ; Murray v. Lillbuzn, 2 Johns. Ch., 479 ; Coleville v. Tradesmen's Bank, 1 Paige, 131; Webster v. Wise, id., 319 ; Root v. French, 18 Wénd., 570; Beebe v. Bank N. Y., 1 Johns., 550; 1 Yesey, jr., 249.
   Hubbell, J.

This suit is founded on a note and mortgage,, executed by Roswell C. Otis and wife to James S. Wiggin, payable in Boston. Both instruments were executed and delivered at Southport in Racine county. Wiggin afterwards, and before the maturity of the note, assigned and conveyed to the appellants all his right, title and interest in the note and mor-gage, and in the lands conveyed by the mortgage, for the consideration of $15,000, as expressed in the assignment. The appellants filed their bill of foreclosure, claiming to be bona fide purchasers of the note for a valuable consideration without-notice, and alleging that the whole amount of the principal and interest secured by the note and mortgage remained due and unpaid.

The bona fides of the assignment is denied by the answer of Otis.

The first question for consideration is, whether the appellants, as assignees-and holders of the note, are protected from any defense which may exist between Otis and Wiggin, the original parties to the transaction ?

The rule is well settled that the mortgage is a mere incident to the note, and may be extinguished by its payment, or passed by its transfer. 4 Johns., 43; 5 Cow., 200; 1 J. J. Marsh, 257. And I ana not prepared to deny that a negotiable promissory note, secured by a mortgage, may be passed before maturity, in the course of business, like other negotiable paper; and that the transferee may take and hold it, free from all equities between the maker and payee. The mortgage in such case would pass as an incident to the note, and might be enforced by the holder in spite of any existing equities between the mortgagor and mortagee. This doctrine is sustained by respectable authorities, and by the reason and sound policy which have long ruled in relation to commercial paper. Powell on Morts., 908 and note.

But the respondents contend, and I think, rightly, that the assignment of Wiggin to the appellants reserves to Otis all the rights he had against the assignor. On this point the assignment must speak for itself. It is an aptly drawn instrument under the hand and seal of the mortgagee, and purports to “transfer, assign, set over and-convey,” to the appellants all “ his right, title, interest and estate, in and unto certain premises ” (setting forth the lands described in the mortgage), “ with all (his) right, title, interest and estate therein, and the debt and note which is secured by said conveyance“ with all the privileges, rights and appurtenances and benefits and advantage accruing therefrom, subject, however, to all the rights of the said Boswell G. Otis and his said wife, in and unto the same

It is difficult to understand what the parties intended by the last clause of this instrument, unless it was to preserve to Otis all the equities which existed between him and Wiggin. Courts are bound to give language its ordinary and current meaning, unless words are used in a special and technical sense (which is not the case here), or unless such construction would be in conflict with the evident purport and intention of the instrument. The construction contended for here is not only clearly consistent with the apparent design of the instrument, but is consonant with a sound rule of equity and morality. It would have been unjust and unconscionable in Wig-gin, although it might have been technically legal, to cut off any defense which Otis might have to a part of his demand, by a transfer of the note to bona, fide holders for a valuable consideration, without notice. It is sufficient on his part that he has employed language which precludes any such imputation upon his motives. And as to the appellants, they sit in his seat, and must be content to enforce their note and mortgage, as he might have enforced them. 5 Johns. Ch., 341.

I proceed to enquire whether Otis had any defense to the mortgage.

The appellants allege in their bill that “ the said Roswell C. Otis, by his certain note or obligation in writing under hi3 hand, duly made and executed at Southport, aforesaid, became justly indebted to James S. Wiggin, of Boston, aforesaid, in the sum of fifteen thousand dollars, payable one year after date, with interest after one year, at the rate of twelve per cent.” And they expressly “ charge the fad to be, that nothing has been paid on the said note and mortgage; and that the money mentioned in said promissory note, and secured by said indenture of mortgage, was due on the 4th day of November, 1846, agreeable to the said note or obligation in writing, and that no part of the same has been paid, etc.”

The bill calls for an answer on oath from Otis, and he was bound and might have been compelled to answer all its material allegations. What allegations then were material? .Surely it was material to determine whether a debt of fifteen thousand dollars was in fact justly due and owing. Whether the mortgage was given to secure just that sum; and if not, what sum ? And what sum was actually due and owing ? On these points, Otis properly responded to the bill. And having answered, his statements are conclusive against the appellants, unless contradicted by two witnesses, or by one witness, with strong corroborative circumstances. These are well settled principles in general practice.

There is a mass of confused and irrelevant matter dragged into the answer, which is equally discreditable to counsel and oppressive to the court. But one thing is stated clearly and positively, to wit: That no debt of fifteen thousand dollars was owing by Otis to Wiggin, at the execution of the mortgage ; and, on the contrary, that the note and mortgage were given to secure a balance of account and future advances. On this point the answer is contradicted solely by the evidence of Wiggin, who was a witness on the part of the appellants. And I have been unable to discover any circumstances satisfactorily proved, which sustain his evidence. Strong objections were urged to the competency of Wiggin as a witness.

As the mortgagee and assignor, he was not necessarily objectionable. But the assignment states, and he swears, that the transfer was made on the full payment to him of fifteen thousand dollars, the entire sum purporting to be secured by the note and mortgage. And it is open to question, whether, if the recovery in this case is reduced by proof that ho debt of fifteen thousand dollars ever existed in his favor, he may not be liable to the assignees for the deficiency on the ground of fraud. I prefer, however, to regard him as a competent witness. What, then, is the result ? In the absense of other proof, one witness does not overcome the answer. 5 Peters, 99; 6 Vesey, 183 ; 18 id., 12; 1 Johns. Ch, 459; 11 Wend., 358. But the answer does not stand alone. It is strongly supported by the evidence of O’Connor and Willis, respondent’s witnesses, who were present at the negotiation at Southport, which resulted in the execution of these securities. Taking the answer in connection with this evidence, I am unable to resist the conclusion at which the circuit court arrived; that the mortgage and note were intended as a general security, partly to cover a balance due and partly to cover advances thereafter to be made by "Wiggin. If such were the fact, it is contended by the respondent’s counsel, that the appellants have the burthen of showing how much was in fact advanced, and what sum is actually due. I find no decision precisely meeting this point. The note and mortgage were prima facie evidence of a debt of $15,000. The respondents have met this proof, by showing that no such debt existed, and that the amount secured depended on the acts of the mortgagee. I think, on general principles, the appellants have the onus of showing what advances were made. 1 Hill, 150; 1 Denio, 522; 5 id., 290; Cowen & H., notes, 476; 7 Cranch, 84.

Another objection is made to the appellant’s recovery, which opens a wide range of inquiry.

The respondents contended that the note and mortgage, being made to draw interest at twelve per cent., were usurious under the laws of Massachusets, which allow of only six per cent. A sufficient answer to this objection might be found in the fact that no interest was payable until the money became due. The note was payable at “ one year from date,” and was to draw interest after one year, at the rate of twelve per cent, per annum.” If the money had been paid at the maturity of the note, no interest would have been demandable. The legal obligation was to pay at the end of a year, and the maker might have discharged his obligations without paying any interest. If he neglected to pay, or, in other words, violated his agreement, the interest which follows might properly be regarded as a penalty to recover damages. 4 Peters, 225. At all events, it seems to me to be a solecism in law to hold an instrument usurious which may be legally discharged by the obligor agreeably to its terms without paying any interest at all.

But waiving this consideration, how far is the objection tenable ? The note and mortgage were executed and delivered in Wisconsin, where twelve per cent, interest was lawful; but the money was payable in Boston.

By the statute of Massachusetts, in case the note had been, sued in that'state, the defendant might have set up usury, in a special flea, and by so doing, reduced plaintiff’s recovery, by a sum equal to three times the excess above six per cent. Rev. Stat. Mass., ch. 35.

But this statute expressly declares that no contract whereby usurious interest is secured shall be thereby rendered void. Id., ch. 35, sec. 2. The provision only extends to a reduction of the recovery, upon a plea filed for that express purpose.

In the language of their own courts, it professes only to regulate the remedy upon a usurious contract.” And that remedy must be applied in an action in the courts of Massachusetts. The courts of this state are not bound by tb eir remedial laws. The remedies we enforce are those provided by our own laws.

This is a general principle, so universally acknowledged as scarcely to need the support of authority. But there happens to be a case precisely in point:

In Gale v. Eastman, 7 Met., 14, the supreme court of Massachusetts refused to enforce the usury law of New Hampshire, which is almost identical with her own, upon a note made in New Hampshire, and which clearly would have been held usurious in that state. Had the statute vitiated or affected the contract itself, the rule would have been different.

It is said, however, that this note being, made payable in Boston, is to be governed in its construction and legal effect, by the laws of the state where it is to be performed. The general rule unquestionably is, that “the lex loci contractus controls the nature, construction and validity of the contract." 2 Kent, 454. And a contract, valid where it is made, is valid everywhere. From this rule, however, contracts made in one country, but to he performed in another, have very generally been excepted. And the reason of the exception is, that the parties are supposed to intend to be governed by the laws of the country where their contract is to be performed, or to take effect.

For this'reason, a note made in Canada, but payable in England, wherein the rate of interest was not specified, has been held to draw interest according to the laws of England. And so a bond made in England and payable "in Ireland, in which the rate of interest was not fixed, was held to bear Irish interest. Champart v. Lord Ranelagh, approved by Wilmot, J., in Rolinson v. Bland, 2 Burr., 1084. And the same principle has been asserted in a great variety of cases on both sides of the Atlantic. But I think the doctrine of construing all contracts by the law of the place of performance has sometimes been carried too far; and when applied rigidly, it defeats the very reason on which the rule is founded. This doctrine is derived from a dictum of Huberus, in his celebrated work De Conflidu Legum — a work which had the great merit of bringing order out of the immense confusion prevailing in continental Europe on the subject of the lex loci; and which remains to this day a high authority, both with the civilians and common law judges. 2 Kent’s Com., 454. But it may be well worth our while to go back and examine the language of Huberus himself.

After laying down the general and acknowledged principle, that contracts are to be governed by the law of the place where they are made — the lex loci contractus — the learned author states an exception to the general rule in these words:

“Verum tamen non ita praecisa respiciendus est locus in quo contractus est iniius, ut si paries alium in contrahendo locum re-spixerint, ille non poiius sit considerandus. Nam contraxisse unus quisque in eo loco intellegitur, in quo ut solveret, se oiligavit,”

The first portion of this extract contains the principle and the reason of it; the latter part is a mere dictum, or rule of construction. As I understand the doctrine, it is that the place of making the contract is not to be so exclusively regarded, but that, when the contracting parties themselves had reference to another place, that may be regarded. ' That is, the intention of the parties shall govern when it is made manifest. And hence, the author adds, every person is deemed to have contracted in the place where he binds himself that his contract shall be performed. Now, this is generally, but not universally true. And the1 same reason which requires a contract to be governed by the law of the place of performance, when it is intended so to be, shall require it to be governed by the place where it is made, when such was the design of the parties. When the court’ can see clearly, either from the contract itself or from evidence aliunde, that the parties intended to have it governed by the law of the place of its actual execution; as, when, for instance, the contract would be lawful at that place, and not lawful at the place of performance, then clearly the intention of the parties ought to prevail.

To adopt a different rule of construction would defeat a contract made in good faith, in the usual course of trade and business. Courts are'bound so to construe all contracts, if possible, as to give them effect rather than to defeat them. Lord Hale quaintly says, “ the judges ought to be curious and subtle to invent reasons and means to make acts effectual, according to the just intent of the parties.” 2 Lev., 9. And if the doctrine of HüBERUS required, a different mode of construction (which surely it does not), it would have to give way to the older and better rule of Coke : “ TJt res magis vahat guam pereat.”

In this country, composed of widespread and independent states, differing in governments and laws, where multitudes of contracts daily spring up, diversified in their form and purpose, and having reference to subject matters as remote as the persons contracting, it is of vast importance that a .rule of construction should be adopted which will give efficacy to the intentions of the parties, wherever they may make their engagements or undertake to fulfill them. And if a too rigid rule has prevailed, or if a mistaken application has sometimes been made, of a rule founded in reason, it is well to restore our decisions from the patb of mere authority, to that of common sense and justice.

Though the citizens of almost all the states are connected more or less in business transactions, the laws regulating the interest of money and the remedies under them are exceedingly diversified.

Occasions often arise in which it is desirable to have the rate of interest prevailing in one state secured by a contract which is to be performed in another. Is there any good reason, either in law or public policy, why the intentions of the parties to such a contract should not prevail ? Why such a contract should not be enforced according to its terms, clearly and definitely expressed, whether the suit be brought in the place of its execution, or in the nominal place of its performance?

Laws relating to interest or usury cannot surely at this day be regarded as involving a question of morality. And where there is no pretense of any attempt to evade the law of the place where the contract is to be performed, I see no ground for refusing to enforce it in the state where it was made ; and if there, everywhere.

This principle has already been enforced to this extent, by the learned court of a sister state, if I understand rightly the case of Depeau v. Humphreys, decided in the supreme court, Louisiana. 20 Martin, 1.

I have not been able to examine the reported case; but Chancellor WALWORTH, of New York, himself an authority of high consideration, thus speaks of the decision : “ That court came to the conclusion, in which decision I fully concur, that in a note given at New Orleans, upon a loan of money made there, the creditor might stipulate for the highest legal rate of conventional interest allowed by the laws of Louisiana, although the rate of interest thus agreed to he paid was higher than that which could he taken upon a loan hy the latos of the state where such note was made payable.” In other words, the note was sued in the state where it was made, and the law of the state where it was to be performed was not allowed to prevail.

But that decision goes further than the case now under consideration requires. It is one thing to enforce a contract entirely personal in its character, and which may be. prosecuted wherever the person or property of the obligor is found, and quite a different thing to enforce a security upon land, which must necessarily be prosecuted in the place where the land is situated. The appellants are seeking to recover upon a mortgage executed in Wisconsin, upon lands in Wisconsin, and made in conformity to the laws of Wisconsin.

It may be well supposed that the parties intended to contract under the laws of Wisconsin, and to seek their redress under those laws, although the money secured was made payable in another state. On the continent of Europe the distinction has long prevailed, between what is termed personal and real statutes. “ The laws which regulate the condition, capacity or incapacity of persons are personal statutes; and those which regulate the quality, transmission and disposition of property are real statutes.” 2 Kent’s Com., 456.

This distinction was asserted as a rule of judicial action, by Chancellor Walworth, in the case of Chapman v. Robinson, 6 Paige, 627. That was a loan of money made in England, upon the security of a bond and mortgage executed in New York, upon lands in that state, but delivered in England and payable there,'where the money was in fact placed to the credit of the borrower. The rate of interest was seven per cent, per annum, a rate legal in New York, but usurious in England.

Upon a bill filed to foreclose the mortgage, and the defense of usury set up, the Chancellor held the mortgage valid, and decreed its payment, with seven per cent, interest. In the course of a learned and able discussion of the subject, he remarks :

“It is an established principle, that the construction and validity of contracts, which are purely personal, depend upon the laws of the place where the contract is made, unless it was made in reference to the laws of some other place or country, where such contract, in the contemplation of the parties thereto, was to be carried into effect or performed.” 2 Kent’s Com., 457; Story’s Conf. of Laws, 227, sec. 272.

On the other hand, it appears to be equally well settled by the laws of every state or country, that the transfer of lands or other heritable property, or the creation of any interest in, or lien or incumbrance thereon, must be made according to the lex situs, or the local law of the place where the property is situated.” And after discussing at length the effect of making the money payable in England, and the views of Mr. Justice Story and Chancellor Kent upon kindred cases, he says: “ But neither he nor Chancellor Kent appear to have expressed any opinion upon the precise question presented in the present case, in which the rate of interest reserved is allowed by the law of the place where the mortgaged premises áre situated, and where the bond and mortgage were actually executed, but is more than could be legally reserved by the law of the place where the money was received, and where, by the legal construction of the contract, it must be deemed to be payable. Upon a full examination of all the cases to be found upon the subject, in this country or in England, none of which, however, appear to have decided the precise question which arises in this cause, I have arrived at the conclusion that this mortgage executed here, and upon property in this state, being valid by the lex situs, and which is also the law of the domicil of the mortgagor, it is the duty of this court to give full effect to the security, without reference to the usury laws of England, which neither party intended to evade or violate by the execution of a mortgage here.”

And again, he says : “ And being actually made in reference to our laws, and to the rate of interest allowed here, it must be governed by them, in the construction and effect of the contract, as to its validity. See also 7 Paige, 682. I am aware that these views have received reproof in a high quarter (Story on Conf. of Laws, sec. 293 a and note), but I think, more in deference to authority than reason.

Bat the case of Chapman v. Robinson, both in fact and in reason, runs parallel with that under consideration; and the decision in the one must be held conclusive in the other. It seems to me that the learned court of New York has rescued a sound principle from the conflict of authorities, and made an application of it, which, however novel or unprecedented, must stand the test of time and scrutiny. To have decided differently would have defeated the intention of the parties and rendered nugatory a contract, entered into in good faith and agreeably to the laws of the great and commercial state where it was executed. And upon this ground, if there were no other defense to the mortgage of Otis, this court' would be bound to decree its full payment, with 12 per cent, interest, according to its terms and in conformity to the laws of Wisconsin, without reference to the usury laws of Massachusetts, which there was no intention to evade or violate.

The note and mortgage, however, as I have before stated, were given not for an actual debt of fifteen thousand dollars, but to secure a less sum, partly advanced prior to their execution, and partly to be advanced afterwards. What interest was to be paid, if any, upon the sum actually secured, is a matter of inference or conjecture. Though the members of this court agree in the opinion that interest, at some rate, ought to be allowed, they do not concur in the rule to be applied. As no rate was specified, and as the money was to be paid in Boston, it is urged that six per cent., the legal rate of interest in Massachusetts, should govern. Again, as the action is brought in this state, and this is the situs of the property to be made available as a security; as this is the domicile of the mortgagor, and as the court holds the parties to have had reference to the laws of this state in making their contract, it is urged that seven per cent., the legal rate of interest in Wisconsin, should prevail. So the ,eo.ur.t below determined. Again, it is urged that the parties themselves having agreed upon twelve per cent., as the rate of interest, in case the entire fifteen thousand dollars had been advanced, they must be deemed to have intended that rate of interest to be charged upon any less sum advanced.

It becomes unnecessary, however, for the court to make any decision upon this mooted question. By a stipulation entered into between the parties on the ninth of May, 1849, the respondent has paid the sum of eleven thousand and two hundred dollars; and the decree of the circuit court, from which the present appeal is brought, directs the payment to the appellants of a further sum of $135.77 — making in all $11,335.77.

After a full and careful examination of the pleadings and testimony, we are none of us able to discover that James S. Wiggin, the mortgagee, had paid or advanced to or for the mortgagor, any sum or sums which, with interest at twelve per cent, from the date of payment, would amount to $11,200 on the ninth of May, 1849. And if the case were now open for an original decree on the merits, this court would be compelled to find a less sum due than was found by the court below. It is not necessary, therefore, to decide what rate of interest ought to govern, nor need we enter into a detail of the facts from which we draw our conclusion, as to the actual amount due from Otis to Wiggin.

It is sufficient that it has been already paid or decreed to be paid; and the appellants have no further rights in the premises.

Decree of the court below affirmed, with costs.

       It is due to the counsel who argued the cause to say, that the answer was put in before they were employed.


source: Caselaw Access Project

author: KNOWLTON, J.

license: Public Domain

text:
    Keene vs. The State.
    1. Punishment— Ohange oe Statute. — An indictment for manslaughter • was found under a statute which made the offense punishable by imprisonment in the state prison not more than ten years nor less than one, but which did not recognize the existence of different degrees of manslaughter; before trial the statute was so changed as to prescribe four different degrees of that crime, varying in degree and grade of punishment from a fine of not exceeding one thousand dollars, or imprisonment in the county jail not exceeding one year, to imprisonment in the state prison for not less than two nor- more than ten years, and the new statute provided also that no offense previously committed should be affected by it, except where it mitigated the punishment, and also that all prosecutions should proceed as if there had been no change or repeal, except that the proceedings should be conducted according to such new statute, and be in all respects subject to its provisions. Held, that the accused, under such indictment found under the old statute, might lawfully be convicted and punished for manslaughter in any one of its degrees, as defined and prescribed by the new statute.
    3. Same. — As to offenses already committed, it is competent for the legislature to mitigate the punishment so as to shorten the period of imprisonment, or provide that it shall be in the county jail instead of the state prison, or by fine in lieu of either, and the accused may lawfully be sentenced under such subsequent statute.

    (3 Chand., 109.)
    EBEOE to the Circuit Court for Grant County.
    The plaintiff in error, Keene, was indicted for manslaughter under the statutes of 1839, before the revised statutes of 1849 went into effect, and it was assigned for error that the court refused an instruction asked for by the counsel for the accused to the effect that the jury must find him guilty of manslaughter in the first degree, or not guilty. The court instructed the jury that they might find the accused guilty under either of the four degrees of manslaughter as defined by the revised statutes of 1849, as they should find the facts. He was found guilty of manslaughter in the fourth degree. A motion for a new trial on account of alleged error in such instruction, and in refusal to instruct as asked, was denied ; also a motion in arrest of judgment; and the accused was sentenced to imprisonment in the state prison for one year.
    By the statute of 1889 it was provided “ that every person who shall commit the crime of manslaughter shall be punished by imprisonment in the state. prison, not more than ten years nor less than one year.” This was the only provision for the punishment of manslaughter in whatever degree, as defined by the statutes of 1849, the statute of 1839 not assuming to create or define different degrees of that crime. The revised statutes of 1849 provided for and defined four degrees of manslaughter, and as punishment for the crime of manslaughter provided that persons convicted of manslaughter in the first, second, and third degrees, should be imprisoned in the state prison, as follows: those guilty in the first degree for a term not less than seven years; in the second degree not more than seven nor less than four years; in the third not more than four years nor less than two; in the fourth degree by imprisonment in state prison for two years, or in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars, or by both. It was claimed on behalf of the plaintiff in error, that under the act of 1849 (Rev. Stat., ch. 138, sec. 22), a higher punishment was provided than was prescribed under the act of 1839, which made the punishment not more than ten years nor less than one year's imprisonment, as under the act of 1849, a party convicted of manslaughter in the fourth degree might be imprisoned one entire year and also fined in the sum of not less than one thousand dollars.
    The statutes of 1849 (Rev. Stat., ch. 157, sec. 3) provided “ that no offense committed and no penalty or forfeiture incurred, previous to the time when any statutory provisions shall be repealed, shall be affected by such repeal; except that when any punishment, forfeiture or penalty shall have been mitigated by the provisions of these revised statutes, such provisions shall apply to and control any judgment to be pronounced after the said statutes shall take effect, for any offense committed before that time.” Sec. 4 provided that “no prosecution for any offense, or the recovery of any penaity or forfeiture, pending at the time any statute or provision shall be repealed, shall be affected by such repeal; but the same shall proceed in all respects as if such provision had not been repealed, except that all such proceedings, had after the time when the said revised statutes shall take effect, shall be' conducted according to the provisions of the said statutes, and shall be in all respects subject to the said provisions.”
    While it was obvious that the punishment in a given case under the revised statutes of 1849, for manslaughter in the fourth degree, might exceed the minimum punishment prescribed under the act of 1839, yet the minimum punishment under the revised statutes might be much less than under the act of 1839, and by prescribing degrees of manslaughter the revised statutes of 1849 gave to the jury, as they should find the facts, power to prescribe the degree of punishment within certain limits.

      Jas. H. Knowlion, for plaintiff in error.

      S. Park Goon, Attorney General, for defendant in error.

      But it seems that any law changing the punishment for offenses com. mitted before its passage is ex post facto and void under the constitution, unless the change consists in the remission of some separable part of the punishment before prescribed, or is referable to prison discipline or penal administration as its object. Hartung v. People, 33 N. Y., 95.

   KNOWLTON, J.

It appears from the record in this case, that the plaintiff in error was indicted for manslaughter, and had his trial at the October term, 1849, of the circuit court of Grant county.

On his trial, his counsel asked the court to instruct the jury that “the jury must, in this case, find the defendant guilty of manslaughter in the first degree, or not guilty,” which the court refused, but charged them, “ that they might, upon this indictment, according to the evidence, find a general verdict of not guilty, or find a verdict of guilty of manslaughter of either first, second, third or fourth degrees of manslaughter, as provided in the revised statutes of Wisconsin.”

The jury returned a verdict of “guilty of manslaughter in the fourth degree.” Motions for a new trial and in arrest of judgment were interposed, which were overruled, and the plaintifE sentenced to one year’s imprisonment in the county jail. The plaintifE in error then sued out his writ of error, and brought the cause to this court. It is contended that the court erred in refusing the instruction ashed, and in charging the jury as it did; in not granting a new trial; in not arresting the judgment, and in passing sentence upon the prisoner.

It is argued that as the crime was committed and the indictment found prior to the revised statutes going into operation, that the trial and judgment, if any, must be in accordance with the statutes of 1889, there being no grades or degrees in the crime of manslaughter in existence, at the time of the finding of the indictment, and the revised statutes having created four different grades or degrees of that crime, and also a greater and different punishment from that in force at the time the act was committed and indictment found. This comprises the whole case, so far as error is alleged.

In order that we may more readily s.ee the force of these objections, and the positions assumed, we will refer to the statutes relative to the subject matter, and give them a careful examination. The statutes of 1839, page 348, sec. 8, provide, “that every person who shall commit the crime of manslaughter, shall be punished by imprisonment in the state prison not more than ten years, nor less than one year.” This is all the statute of 1839 contains upon this point.

The revised statutes of 1849, sec. 22, ch. 133, provide as follows : Persons convicted of manslaughter in the first, second and third degrees, shall be punished in the state prison as follows: Persons convicted of manslaughter in the first degree, for a term not less than seven years; if convicted of manslaughter in the second degree, for a term not more than seven nor less than four years ; if convicted of manslaughter in the third degree, not more than four years and not less than two years.” The next section provides that “ every person convicted of manslaughter in the fourth degree shall be punished by imprisonment in tbe state prison for two years, or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment.”

It is contended that as there is no limit specified to the punishment of a person convicted of manslaughter in the first degree under this act, it becomes chargeable with creating a higher grade of punishment than that prescribed by the statute of 1839. But this is answered by reference to sec. 30 of the same chapter, which provides that “ every person who shall commit the crime of manslaughter shall be punished by imprisonment in the state prison not more than ten years nor less than one year.”

This section being verbatim that of the statute of 1839, clearly limits the punishment in all cases to as low a grade as that of 1839, and does not permit a sentence to extend beyond ten years, and answers that objection beyond cavil. This comprises all the statutory provisions concerning the punishment of this crime. There is, however, provision made which applies to the mode of trial and sentence, ch. 157, secs. 3 and 4, of the act repealing the statute of 1839, to wit: No offense committed, and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, shall be affected by such repeal; except that when any punishment, forfeiture or penalty shall have been mitigated by the provisions of these revised statutes, such provision shall apply to and control any judgment to be pronounced after the said statutes shall take effect for any offense committed before that time.”

“ Sec. 4. No prosecution for any offense, or the recovery of any penalty or forfeiture, pending at the time any statutory provision shall be repealed, shall be affected by such repeal ; but the same shall proceed in all respects as if such provision had not been repealed, except that all such proceedings had after the time when the said revised statutes shall take effect shall be conducted according to the provisions of tbe said statutes, and shall be in all respects subject to the said provisions.” Now we need not go to tbe common law, or in search of adjudicated cases, to prove that no greater punishment could be inflicted than the one in force at the time the crime was committed, nor that the accused shall "have the benefit of any mitigation of punishment under a subsequent act of the legislature ; the legislature having settled this point in sec. 8, above cited. It is clear at common law, that no different punishment of a higher grade can be inflicted in such cases, though one of a different and less grade may be. But who is to judge of the degree of punishment? Is it the prisoner or the court ? Unquestionably the court. Suppose á murder has been committed and an indictment found, but before trial the legislature abolish capital punishment, the prisoner is convicted and claims the sentence of death to be pronounced upon him, rather than endure, as he may say, that greater punishment of imprisonment for life, without the hope of pardon or the enjoyment of any of nature’s blessings destined for his race; can he have this sentence passed upon him ? Can the governor issue a warrant to carry into effect such sentence, or the sheriff legally execute it, if issued? Again, if he is sentenced under the then existing law, can he claim his discharge upon a writ of habeas corpus ? If he could not have his choice of punishment in this supposed case (which is as strong a case as we could imagine), why, in another of much less magnitude and moment to him ?

The revised statutes did not create manslaughter a crime ; it existed as such before; nor did it change the mode of punishment except in one state of case, where it reduced the punishment from one year’s imprisonment in the state prison, to a few months’ imprisonment in the county jail, or to a mere flue “not exceeding one thousand dollars.” This is clearly a mitigation of punishment. True, the revised statutes arrange the crime of manslaughter into degrees; but this amounts to nothing more than giving the jury an additional duty, and relieving the court from a duty that before devolved upon it. The grade is to be gathered from the facts of the case canvassed by the jury.

But it is contended that the prisoner had a right to the clemency of the judge, but is now thrown upon the sympathy of a jury. If this reasoning be carried out, we permit the accused to say: “ when I committed the act you complain of, had I been tried, judge A. would have presided over my trial, and I now claim, as a legal right, to be tried by him instead of this judge B.; for certainly, I would receive a more lenient trial by him than by judge B.” Again, when we passed from a territorial to a state government, all persons charged with crime could say : “ when I committed this offense, I was indicted as acting against the peace and dignity of the United States; I then had a right to be tried by a district court, over which a judge presided who was appointed by the President of the United States; now you attempt to try me by a circuit court, over which a judge presides who has been selected by a general vote of the- people of the circuit, and I claim my discharge as my legal right. I do not regard this law you choose to call a constitution, that has been adopted since I committed the act you complain of.” If such are the principles of our laws, every change of criminal law, or of the judges whose duty it is to administer it, would be a day of jubilee to criminals not sentenced.

But we must act as directed by our constitution and statutes. Sec. 4, above cited, required the circuit judge who tried the cause, to do as he did on the trial; the accused could not have been tried under the old statute, there being a difference in impaneling jurors, and many other important matters, the plaintiff in error placed himself in that position, and asked an instruction to the jury strictly, under the revised statutes. Why such an instruction was asked can only be accounted for on the ground that this counsel was aware that the evidence was not sufficient to make out a case of manslaughter in the first degree, when it was clearly a case in the fourth degree; and under that instruction the jury must acquit the accused, although he would have been convicted under the statute of 1889 by a general verdict of guilty.

The views here taken are fully sustained in the opinion' of the court delivered by SAVAGE, C. J., in the case of People v. Phelps, 5 Wend., 10. We therefore see no cause, either from adjudicated eases, in reason or justice, to disturb the judgment of the circuit court.

Conviction affirmed.


author: JACKSON, J.

text:
    Hazelton vs. Putnam and another.
    1. Easement. — An easement is a liberty privilege or advantage in lands, without profit, and existing distinct from the ownership of the soil, and must he founded on a deed or writing or upon prescription. It is a permanent interest in another’s land, with a right to enjoy such interest fully and without obstruction.
    2. License. — A license is a hare authority to do a certain act or series of acts upon another’s land without possessing any estate therein, is not assignable, and is defeated if the owner of the land who gives it transfers his title to another, or if either party dies.
    3. Same. — While a license remains unexecuted it is revocable, but after it has been executed it cannot be so far revoked by the party who gave it as to make the party to whom it was given, and who has acted under it, a wrongdoer. Its effect is to justify all acts done under it while it continues unrevoked which would otherwise be tor-tious.
    4. Pabod License — Intebest in Lands. — An absolute, continuing and irrevocable power or authority to exercise a continuing privilege on the land of another cannot be created or upheld by a mere parol license, though acts in pais have been done in accordance with its terms. French v. Owen, 2 Wis., 250; Olute v. Oarr, 20 id., 531.
    5. Same — Equity. — Where money has been expended or improvements made and buildings erected on the faith of a parol license, which has been to that extent executed, courts of equity have generally interposed so far as to restrain the licensee from appropriating to his own use and benefit the labor expended and improvements made on the faith of such license, without first placing the licensee in the same situation in which he stood before he entered upon its execution.
    6. Same — Agreement.—An agreement for an easement is taken out of • the statute of frauds by part performance, and so is a parol license by being executed, but a court of equity will not grant relief in such cases unless the contract and grounds therefor are established clearly, definitely and in an unequivocal manner. And in this case relief is denied because the evidence is too conflicting and inconclusive, and the alleged parol agreement too indefinite and uncertain.
    (3 Chand., 117.)
    APPEAL from the Circuit Court for Milwaukee County.
    The complainants, Aaron and Amos Putnam, filed their bill against the defendant, Hazelton, alleging that they owned a certain mill and water power used in running it, on certain premises therein described, and that they had expended $2,500 in building said mill and improving said privilege, the full and ■undisturbed enjoyment of which they had had from 1841 to 1844; that the water which propelled said mill was conducted in two races which joined before entering the flume, one of which extended about two hundred and eighty rods to a small pond made by damming the waters of Stickney brook, and by the other of which the water was brought from a pond which collected the waters of a brook and several springs, and another pond which collected the waters of another stream which naturally discharged itself into Fox river through the lands of Aaron Putnam, about half a mile below the mill; that they had procured certain water rights of adjacent land owners, fully set out in the bill, among which the privilege of setting back the water on the lands of Hazelton by means of a dam, so as to raise a pond and head of water to convey the water through one of said races to said mill; that Hazelton, on application therefor, gave them a parol license and privilege to so flow his lands, requiring no other condition or consideration than the building oí said mill, although they proposed to give him a reasonable sum therefor; that he promised to give a deed of such privilege, which was of great importance to them in connection with said mill and water power, and without which the mill could not be operated to advantage; that relying on Hazelton's license and promise they began their mill and prosecuted the work of building it without interruption, and completed said mill and perfected said water power, flowing a portion of the defendant’s lands, upon which they raised the water to a height of thirty inches, thereby flowing about sixteen acres thereof; that on being applied to to execute a deed of such privilege the defendant, Hazelton, tendered a deed conveying the privilege of flowing said land until he should want it, and refused to give any other conveyance or assurance. At this time complainants had expended $700 in and about their said mill and water power, and they proceeded, notwithstanding such action of the defendant, to complete their mill and water power by the sufferance of the defendant, who after-terwards gave them permission to dig a ditch on his premises to aid in conveying the waters thus raised on his land to said mill; that they continued to enjoy all these privileges until March, 1844, when a dispute arose in respect to the rights of the respective parties, and Hazelton forbid the flowage of his lands, and he soon after began and built a mill at said pond and set it so low as to divert the waters by that means, and the means of sundry ditches to his mill and from complainant’s mill; that by means of the premises he has diverted the waters raised upon and about his land from the mill of the complainants to their great damage, etc., and they prayed for an injunction against such alleged wrongful acts, and that Hazelton be compelled to convey the said privilege of flowing his land as he had verbally promised to do in 1840.
    The answer denied the more material allegations of the bill, and the cause was heard upon the proofs, and the circuit court decreed that the defendant convey to the complainant thepriv-ileges claimed, and that be be enjoined from interfering with or obstructing tbe same, and that the defendant pay the costs. The testimony was somewhat voluminous, and as it was regarded by this court too conflicting and inconclusive, and the agreement relied on too indefinite to justify the granting of any relief, it is not thought important to make any further statement in regard to it. The case shows that the circuit court decreed for the complainants upon the ground “ that the weight of evidence seemed to show that in the month of April, 1840, the defendant by parol gave license to the complainants to flow the land of the defendant at the place mentioned in the bill and answer, and that the complainants, in good faith, and re. lying on such, license, expended money and labor in tbe erection of a sawmill and other works necessary to the successful operation of such mill, to which the use of the land and waters at such place were also necessary and essential.”

      Smith & Palmer, for appellant:
    1. The right to flow the land of another is an easement, and being a permanent interest in land, must be founded upon a deed or writing, or upon prescription ; that a license is a pei’-mission to do an act or series of acts upon the land of another without acquiring any estate therein; founded in personal confidence, not assignable, and may exist by parol. The distinction between an easement and a license is illustrated in Webb v. Paternoster, Palm., 71; Le Fever v. LeFever, 4 Serg. & R., 241; Bridges v. Blanchard, 3 Nev. & M., 691; Hepburn v. McDoioell, 17 Serg. & R., 383; Liggins v. Inge, 7 Bing., 682 ; Barnes v. Barnes, 6 Yt., 387 ; 4 Kent, 452 ; Taylor v. Walters, 7 Taunt., 383 ; GooJc v. Stearns, 11 Mass., 533; 1 Johns. Ch., 144 ; Ricker v. Kelley, 1 Green!, 117 ; 1 Gill & I., 382; Hewlins v. Shippan, 5 Barn. & 0., 221, 329, 233.
    2. The right claimed by the complainants is that of a permanent interest in the land which could not pass by parol (9 Johns., 298 ; '4 id., 81; 6 Hill, 61); to take the case out of the statute of frauds on the ground of part performance of an agreement to convey, such agreement must be particularly and specifically proved. If the contract be doubtful or sustained by conflicting evidence, as in this case, it will not be regarded. Rawton v. Raioton, 1 Hen. & Munf., 91; 1 Johns. Ch., 131-146 ; Given v. Gadder, 2 Desau., 171; 8 Greenlf., 320: 3 Paige, 478; 5 Wend., 639.
    3. The parol license was revocable, 2 Hild. Abr., 116; Fen-timan v. Smith, 4 East, 107; 1 Coxe, 460; 1 Rawle, 27 ; 17 Mass., 297 ; 17 Johns., 306.

      J. M Arnold, for appellees :
    1. The grant of the license to flow the lands of appellant was not within the statute of frauds and was valid, or if within the statute and in the nature of an agreement for an easement, was taken out by part performance. In Taylor v. Waters, 7 Taunt., 384, Gibbs, O. J., says: “Alicense to enjoy a beneficial privilege on land does not create an interest in land and is good without writing.” “ In Wood v. Lake, Say R, 3, there was a parol agreement that A. should have liberty to stack coals on the land of B. for seven years, and have the sole use of this part of B.’s close. This was held to create neither an estate nor an interest in or out of land.” In Pennsylvania a parol license to use a watercourse for a mill has been held valid in more than one case. In Le Fever v. Le Fever, 4 Serg. 6 R, 241, and in Gheever v. Pearson, 16 Mass., 443, a parol license was adjudged valid and irrevocable after being executed. And in Rerich v. Kerns, 14 Serg. & R, 267, it was held by Gibson, C. J., not only that damages might be recovered at law for the injury to such license by a deprivation thereof or obstruction of its enjoyment, but that equity would protect it by injunction, specific performance, or otherwise. That case was not more unconscionable on the part of the defendant than the present. Upon the faith of the promise of Hazelton the complainants have expended large sums of money in a mill which will be rendered valueless if the appellant is to be allowed to avoid his solemn promise and license. Such a construction of the statute would promote fraud and not prevent it. The case is analogous to that of part performance by the vendee of lands, where the taking possession and making lasting and valuable improvements is always now held to take the case out of the statute. Gibson, C. J., says, in the case of Le Fever v. Le Fever, above referred to, “it may be safely affirmed, that expending money or labor in consequence of a license to divert a watercourse or use a water power in a particular way, has the effect of turning the license into an agreement that will he executed in equity." Mr. Angelí (on Watercourses, p. 93) says that “ the court in the above case are well sustained by authority as well as reasonIn Mb-Kellip v. Mclllienney, 4 Watts, 817, a parol license was given m evidence to justify the flowage of land by the erection of a dam below. In Crosby v. Wadsworth, 6 East, 602, a deed had been executed conveying a right of watercourse, but parol evidence was admitted to prove a verbal agreement altering the route of the watercourse from that provided in the deed. In Eq. Ca. Abr., 523, A. diverted a watercourse which B. had at great expense erected. B. looked on and connived at the diversion, and afterwards brought his action for nuisance. Upon a bill brought by A., the action was enjoined. In Gay v. Bartlett, 20 Pick., 186, it was held that a license once executed is not revocable. True: were it otherwise, one would be encouraged to take advantage of his own wrong. This the law abhors.
    It will avail appellant nothing that he revoked the license. It was too late. Already, in pursuance of the license and agreement, complainants had expended large sums and made lasting improvements — in the words of the authorities the license was executed; it was no longer revocable. Considered in the light of an agreement for an easement, the contract made in the month of April, 1840, though by parol, and even without any money consideration, must now stand. It is now well settled, so much so that it is deemed unnecessary to quote authorities thereto, that the taking possession of and making lasting and valuable improvements upon land by tbe vendee under a parol contract for the sale thereof, takes tbe case out of the statute of frauds, and such contracts will be enforced in equity. The same may be said with regard to a gift. Doubtless a gift unexecuted is void. But if a donee be put in possession and make improvements upon the land, a conveyance will be decreed. Why ? Because the parties cannot be placed in statu quo. Damages may not compensate, and equity will not put a construction upon a remedial, beneficial statute to work inequity, and encourage fraud and injustice. Yet this was not without consideration. There was the want of milling facilities in that neighborhood, and the respondent could not but be benefited by the erection of a mill immediately adjoining his farm. He himself confesses this as the inducement, and in every view of the case it would be an act of the grossest injustice and wrong to permit him to back out of the contract. See also 17 Serg. & R., 888; 4 East, 107; Angelí on Watercourses, 58 ; 3 Kent Com., 452.
   JACKSON, J.

This is an appeal from the Milwaukee county circuit court. The complainants below, and the appellees in this court, Amos Putnam and Aaron Putnam, allege that in the month of April, 1840, the appellant, Orrin Hazelton, by parol, consented and permitted complainants, Putnams, to build a saw mill and erect a dam upon their land, in'such a manner as to flow water upon the land of appellant; and did also, by parol, consent, and permit and agree, that complainants should cut a race across the lands of the appellant for the purpose, and in such a manner as to divert the waters of “ Stickney run” from its usual channel, and flow the same into the dam or pond of said complainants for the use of said mill, and also promised tQ' confirm this privilege or grant, by deed; that upon and'-'after the giving of such consent, and the making of such promise* and on the faith thereof, complainants proceeded to make improvements and build their saw mill, and prior-to the-thirds day of August, 1840, expended several hundred dollars upon said works; that after that time, the appellant Hazelton, repenting of his license and promise, attempted to revoke, and refused to confirm the same by deed; and subsequently interrupted the complainants in the enjoyment of said privileges, and prevented them from availing themselves of the benefit of the waters of Stickney’s brook, by erecting a mill, and diverting them thereto, to the exclusion of complainants.

The respondent Hazelton, in his answer to complainants’ bill, denies having given the license and permission in the manner and to the extent alleged; and insists that any permission or license that may have been given was revoked before the complainants had expended or invested one dollar in building their mill, or constructing either of their races.

To sustain the allegations in the complainants’ bill on the one hand, and to support the answer of the respondent on the other, a large number of witnesses were sworn and examined, whose testimony was read upon the hearing of the cause below, and is now upon appeal presented to the consideration of this court.

Parol licenses, especially in cases at law, have been most fruitful sources of litigation, and have given rise to decisions so contradictory, both in the English and American courts, as to render somewhat applicable the remark made by Lord Abinger in Rodwell v. Phillips, 9 M. & W., 505, in relation to decisions upon a kindred branch of the law, that “no general rule is laid down in any of them that is not contradicted by some others.”

It is quite probable that much of this discrepancy may have arisen from the different ideas attached to the word license (Mumford v. Whitney, 15 Wend., 392); for, as was said by Baron AldersoN, in his elaborate opinion in Wood v. Leadbitter, 13 M. & W., 837, “that which is called a license is often something more than a license; it often comprises, or is connected ¡with a grant, and then the party who has given it cannot in general revoke it so as to defeat his grant to which it was incident.”

At the present day, the distinction between an easement and a license is well settled and fully recognized, although it becomes difficult, says Chancellor Kent, “ in some of the cases, to discover a substantial difference between them.” An easement, says Mr. ANGELL, in his able treatise on Watercourses, 316, it has appeared, is a liberty, privilege or advantage in laud, without profit, and existing distinct from the ownership of the soil; and it has appeared also, that a claim for an easement must be founded upon a deed or writing, or upon prescription, which supposes one. It is a permanent interest in another’s land, with a right to enjoy it fully and without obstruction. A license, on the other hand, is a bare authority to do a certain act or series of acts upon another’s land, without possessing any estate therein ; and it being founded in personal confidence, it is not assignable, and it is gone if the owner of the land who gives the license transfers his title to another, or if either party die.

This definition of a license, as well as of an easement, is adopted by Chancellor Kent (3 Com., 452), and is expressly recognized by the most approved English and American authorities. Thompson v. Gregory, 4 Johns., 81; Mumford v. Whitney, 15 Wend., 380; Coock v. Stearns, 11 Mass., 533; Miller v. Auburn & Syracuse R. R. Co., 6 Hill, 61; Fitch v. Seymour, 9 Met., 462; Hays v. Richardson, 1 Gill & J., 366; Fentiman v. Smith, 4 East, 109; Hewlins v. Shippam, 5 B. & Cress., 221; Thomas v. Sorrell, Vaugban, 351; Wood v. Leadbitter, 13 M. & W., 843.

Whilst it has been uniformly held that a parol license, while it remains executory, may be revoked at pleasure (Cook v. Stearns, 11 Mass., 533; Mumford v. Whitney, 15 Wend., 380; Fentiman v. Smith, 4 East, 109; Angell on Watercourses, 319, 324); yet, when executed, whether it is revocable, and if so, how far and to what extent, has been a question fraught with much difficulty, and respecting which different courts of th$ highest respectability have held very differently.

The principal English cases that have been relied upon in support of the doctrine that there are some paról licenses which are irrevocable, are those of Webb v. Paternoster, Palmer, 71; Wood v. Lake, 1 Sayer, 3; Taylor v. Waters, 1 Taunt., 374; and Winter v. Brockwell, 8 East, 308.

The cases of Wood v. Lake and Taylor v. Waters appear to have been decided on the ground of the decision in Webb v. Paternoster. The case of Winter v. Brockwell is distinguishable in its main feature from the three other cases. The declaration in that case stated that the plaintiff “ was entitled to an easement' of a passage for light and air to his dwelling house, through an ancient window, over an open space of land of the defendant, and that, by means of such open space, noisome smells from the defendant’s house evaporated without occasioning any nuisance to the occupier of the plaintiff’s house, and that the defendant wrongfully erected a skylight above the plaintiff’s ancient window, and covering the open space above mentioned, by means of which the light and air were prevented entering the plaintiff’s window and into the house, and noisome smells arising from the adjoining house were prevented from evaporating and entered the plaintiff’s dwelling house." The defendant pleaded the general issue. It appeared in evidence that “ the open space which belonged to the defendant’s house had been inclosed and covered by a skylight in the manner stated, with the express consent and approbation of the plaintiff, obtained before the inclosure was made, who also gave leave to have part of the framework nailed against the wall. Sometime after it was finished, the plaintiff objected to it, and gave notice to have it removed; but Lord ElleNBOR-OUGH was of opinion that the license, given by the plaintiff to erect the skylight, having been acted upon by the defendant and the expense incurred, could not be recalled and the defendant made a wrongdoer; at least, not without putting him in the same situation as before, by offering to pay all the expenses which had been incurred in consequence of it. And under this direction the defendant obtained a verdict.”

Mr. ANG-ell (Angell on Watercourses, 854) draws a very clear and obvious distinction between the case of Winter v. Brockwell, and some of the other cases referred to; and says: “in the case of a prescriptive right to light, as in the case of Winter v. Brockwell, it is not in collision with well established authority, but, on the other hand, in accordance with it, that a parol license to do any act on the land of the licensee by the licenser, inconsistent with and in derogation of said right, is irrevocable, because the title to this right of the licenser becomes thus extinguished. An easement is not created, but an existing one voluntarily abandoned and surrendered.” But how can this doctrine of extinguishment be applied to a natural watercourse ? It is important to notice the broad distinction there is, in the eye of the law, between the right to light, and the right to the water of a natural watercourse. The owner and occupier of a house has prima facie no right to light which enters his windows sideways; it must be by grant, or by prescription, which supposes one. Both he and the adjoining land owner only own the light upwards. There was therefore no interest in land conveyed in Winter v. Brockwell, and the licenser’s interest in his land remained as complete as it was originally, and the license was only something collateral to the land. In respect to a natural watercourse, it is directly otherwise ; and the right which a riparian,proprietor upon it has, as to the use of the water, is by force of the maxim above mentioned, a part of the freehold; and to deprive him of it by a diversion would be a deprivation of what is inseparably connected with, and inherent in, the land, of what in fact is parcel of the inheritance, and which passes with it. Hence it is,” he further remarks, “ we find Lord ElleNBORough ruling, in 1807, the license in. Winter v. Brockwell, to be irrevocable, when, in 1808, in Fertiman v. Smith, he held that the title to haye the water flowing in the tunnel over the defendant’s land, could not pass without deed. The leading cases in the United States, which favor the doctrine in Wood v. Lake, are 14 Serg. & R., 272 ; 1 Greenleaf, 107; 5 id., 9-18; 11 N. H., 102; and 15 Ohio, 247.

It is to be remarked, however, that some of these cases were decided in states where there are no courts of chancery, and where the common law courts administer the principles of equity through the medium of legal forms. In Clement v. Dergin, the broad ground was taken, that wherever the acts done on the faith of a license have resulted in the creation of an interest, of whatever description, for the protection of which the continued existence of the license is necessary, the law will not permit it to be defeated by the party from whom it originally proceeded.

The courts of New Hampshire and of Ohio appear to have doubted this doctrine in its fullest extent. 11 N. H., 102; 15 Ohio, 247. But this is much further than the courts of this country have generally gone. 11 Mass., 535; 2 Met., 420; 15 Wend., 380; 6 Hill, 61.

Most of the American courts have been satisfied' with determining that “ a party who has induced the incorporation of the property of another with his own, through the means of a promise not to interfere with its use or enjoyment by the latter, shall not be allowed to commit the fraud of appropriating it to his own purposes, although he may withdraw the right to use it in the manner originally contemplated, and compel the other party to resort for redress to an action.” 2 Am. Lead. Cases, 526, and notes; Prince v. Case, 10 Conn., 375; Cook v. Stearns, 11 Mass., 523. The courts of New York and Massachusetts are directly.opposed to the doctrine that parol licenses are revocable. Cook v. Stearns, 11 Mass. 533; 1 Met., 331; 9 id., 395; 15 Wend., 380; 6 Hill, 61.

It has been sometimes held that a license coupled with an interest is irrevocable; but this doctrine, although unquestionably correct, in a qualified sense, can only be considered according to the better authorities, as applicable to the temporary occupation of land, and confers no right nor interest in the land. 15 Wend., 880; 10 Conn., 375; Angell on Watercourses, 319; 11 Adolph. & Ellis, 34.

In illustration of this doctrine, C. J. Savage says in Mumford v. Whitney: “A agrees with B that B may hunt or fish on his, A’s land ; A thereby gives B a license for that purpose. This gives B no interest in the land; he cannot authorize any other person to go upon the land; it is a personal privilege granted to B alone. If, after A has given his consent, and before B has entered upon his land, A changes his mind, he has a right to do so and forbid B from entering upon his land for the specific purpose. The license is thus far executory and may be revoked at pleasure; if B afterwards enters, he is a trespasser; if, however, B enters before any revocation of license, the license is then executed, and it is not competent for A to revoke it and make B a trespasser.”

A similar illustration of a license coupled with an interest, is furnished by the case of Wood v. Manley 11 Adolph. & Ellis, 84, in which goods which were upon the plaintiff’s land were sold to the defendant; and that by the conditions of the sale, to which the plaintiff was a party, the buyer was to be allowed to enter and take the goods.

“ It was held that after the sale, the plaintiff could not countermand the license; and the defendant having entered to take and the plaintiff having brought trespass, and the defendant having pleaded leave and license, and a peaceable entry to take, to which the plaintiff replied de injuria, it was held that the defendant was entitled to the verdict, though it appeared that the plaintiff had, between the sale and the entry, locked the gates and forbidden the defendant to enter; and the defendant had broken down the gates and entered to take the goods.” The plaintiff, as was said by Williams, J., having assented to the terms óf the contract, put himself into a situation from which he could not withdraw.

The effect of such a license is in general merely to excuse and justify all acts done under and by virtue of it, while it continues unrevoked, which would otherwise be tortious. Angell on Watercourses, 139; 2 Am. Lead. Cases, 515; 8 Met., 34; 2 Denio, 625; 11 Conn., 525; 6 Hill, 64; 13 M. & W.

The cases of Webb v. Paternoster, of Wood v. Lalce and Taylor v. Waters, whose soundness had been repeatedly questioned in the English courts before the case of Wood v. Leadbitter, were, in that case, finally and conclusively overruled. 13 M. & W., 836. Whatever may have been some of the earlier decisions, therefore, there can be no question that at this day the weight of authority in the English common law courts is decidedly against the position, that any indefeasible power or authority to exercise a continuing privilege on the land of another person can be given by a mere parol license, even when carried into execution and upheld by .acts done in pais in accordance with its terms. Note to 2 Am. Lead. Cases, 522; Fentiman v. Smith, 4 East, 107; 4 M. & G., 562; Hewlins v. Shipman, 5 Barn. & C., 221; Wood v. Leadbitter, 3 M. & W., 838.

In cases, however, where money has been expended, or improvements made and buildings erected on the faith of a parol ' license which has been thus executed, courts of equity have generally interposed, at all events, so far as to restrain the licensee- from appropriating to his own use and benefit, the labor expended and improvements made on the faith of such license, without placing the licensee in the same situation in which he stood before he entered upon its execution. 2 Story’s Eq., 70, 75; Angell on Watercourses, 359.

We do not deem it material to determine whether the case at bar is to be regarded in the light of an agreement for an easement, or a parol license executed. An agreement for an easement is in equity taken out of the statute of frauds by a part performance, upon the same principle that a parol license executed is taken out of the statute. Angell, 859; 4 Serg. & R., 241; 2 Eq. Cases, Ab., 525; Welman v. White, 2 Caine’s Cases, 87; Phillips v. Thompson, 1 Johns. Ch., 181; 2 Story Eq., 75.

The ground upon which the court interposes in such cases is not simply that there is proof of the existence of á parol agreement, but that there is fraud in resisting the completion of an agreement partly performed.” Phillips v. Thompson, 1 Johns. Ch., 149.

But it is a well established rule that equity will not enforce the specific performance of a parol agreement in a doubtful case; and where a party sets up part performance to take a parol agreement out of the statute of frauds, it is necessary, in the language of Mr. Justice Story, that “ the contract should be established by competent proofs, to be clear, definite and unequivocal in all its terms.” Phillip v. Thompson, 1 Johns. Ch., 149; 14 Vesey, 386.

In applying this salutary and now well recognized principle of equity jurisprudence to the case before us, we are of opinion that the evidence is too conflicting and inconclusive, and the agreement too indefinite and uncertain to justify this court in granting to the complainants the relief prayed for in their bill. The decree of the circuit court must therefore be reversed without costs.

Decree reversed accordingly.


author: Larrabee, J.

text:
    Strong vs. Catlin.
    1. Summons— Seal.— A summons issued and served without being sealed is not void, but is amendable and the defect is cured by verdict.
    2. Pbactice — Interlooutoby Judgment. — It is error in case of default in an action of assumpsit to assess damages and enter final judgment without interlocutory judgmenthaving been first- entered.
    (3 Chand., 130.)

      EEEOE to the Circuit Court for Dane County.
    Action of assumpsit 'brought by Albert Catlin against Moses M. Strong.

    The summons by which the action was commenced was not sealed with the seal of the court. It was served personally on the defendant. He did not appear, and being in default, the court in term time, without interlocutory judgment having been entered, ordered the clerk to assess the plaintiff’s damages, and he reported that he had assessed them at $293.95, and upon his report judgment was given for the plaintiff and against the defendant for that sum and costs, and the defendant brought this writ of error.

      M. M. Strong in pro. per.

    contended that the summons was void for want of a seal, and that damages could not be assessed without interlocutory judgment being first entered, citing Graham’s Prac., 121 and 123 ; 1 Wend., 16 ; 4 Cow., 550; 5 id., 15 ; 4 id., 504; 15 Wend., 617; 4 Cow., 548; 1 id., 38; 4 Johns., 309 ; 1 Cow., 41; 8 id., 27 ; 12 Johns., 178; 3 id., 257.
    Gatlin, Abbott £ Clark, for defendant in errror,
    cited Graham’s Prac., 121; 4 Cow., 250; 1 Wend., 16; claiming that a writ without seal is only voidable and not void.
   Larrabee, J.

The summons by which this action was commenced had no seal; but this was clearly one of those defects provided for in the statute of amendments, and was cured by verdict.

Where the defendant suffers a default to be entered against him in an action of assumpsit, the judgment in the first instance is only interlocutory; and this must be entered before the plaintiff can proceed to have his damages assessed, or to complete his final judgment in the case.

No interlocutory judgment was entered, but a final one, of which complaint is now made. This must be reversed, and the plaintiff can proceed to enter his interlocutory judgment at the next term of the circuit court.

Judgment reversed.