text:
    Messenger vs. Broom.
    1 Reference—when an arbitration. In. actions of tort not referable by statute, if tbe parties refer tbe cause by stipulation or rule, or both and merely provide that tbe referees shall report, such reference amounts to an arbitration, and operates as a discontinuance; but if tbe parties provide that judgment shall be entered on tbe report or award, and judgment is entered accordingly, tbe parties are concluded by their agreement, and will not be beard to allege that tbe reference and judgment were not warranted by law.
    3. Reference. Where an action of assumpsit, which did not require tbe examination of long accounts, and not strictly referable under tbe statute, is referred by consent, it does not work a discontinuance. And such consent concludes tbe parties from making any objection on tbe ground that it was not referable, and amounts to an admission that tbe case was within tbe statute; and if for any cause tbe report is set aside, tbe cause remains in court for further proceedings.
    3. Presumption — practice. Where parties and counsel acting under a rule of court return their proceedings under tbe rule, it will be presumed that they are regular and in conformity to law, and a general, vague objection thereto will not be regarded, but the particular grounds of objection must be distinctly stated.
    4. Practice. An action of assumpsit was referred by consent of the parties, and tlie referees made report which did not show that they were first sworn, and which was not proved by a subscribing witness, and the party against whom the report was made making only a general objection to the rendition of judgment thereon, judgment was entered according to the report, after which his counsel presented a bill of exceptions for signature, stating the aforesaid objections, which the judge refused to sign, and at once vacated the judgment and referred the report back to the referees for correction. Held, that the judge properly refused the bill, and that the judgment was properly vacated, and the report referred back for correction.
    5. Keeusab to sign bibb. The refusal of a judge to sign a bill of exceptions cannot be reached by a writ of error.
    6. Continuance. When a cause is continued generally without stating to what term, it operates as a continuance to the next term of court actually held.
    7. Speciab and adjourned terms. It was competent for the legislature to provide by law that the judge of the district court might hold special or adjourned terms, when he deemed it necessary, for the transaction of business, and such an act is not in violation of the ninth section of the organic act.
    8. Practice. A party must bring forward all his objections to a proceeding at the same time, and will not be allowed to present them piecemeal.
    ERROR to the District Court for Milwaukee County.
    Assumpsit brought by Broom against Messenger on two promissory notes. Plea of non-assumpsit and set-off. By consent an order was entered referring the case to three referees, who filed their report June 27, 1845, in favor of the plaintiff for $255.12. July 2, 1845, the report was confirmed and judgment for the amount reported was rendered in favor of the plaintiff; the defendant objecting thereto, in general terms, without assigning particular reasons. The report was not authenticated and proved by a subscribing witness, etc., as required by the statute, and it did not show that the referees had first been duly sworn, etc.
    The defendant tendered a bill of exceptions stating these objections, which the district judge refused to sign, and he excepted to such refusal, and these matters were all embraced in a bill of exceptions signed by the judge in which it is stated that: ‘c The defendant gave no reason for objecting to said report of referees and did not call the attention of the court to the nature of his objections thereto until the judgment was rendered, when immediately thereupon said counsel presented to the court the above for the signature of the judge, which the judge refused to sign, as the court had not until then been apprized of the nature of the objections to said report. Immediately after reading the above, and within five minutes after the entry of the judgment, the court ordered the said, judgment or entry thereof to be vacated and re-referred said report to the referees to add in their report that they were first duly sworn and to have the execution of said report attested by a witness,” etc.
    The judgment was vacated and the report was referred back to the referees, and on the following day they returned their report properly proved and showing that they were first duly sworn, etc., and that day the cause was continued generally. >
    At a special term held in September, 1845, the defendant moved the court to set aside the report on other grounds, but the court overruled the motion and confirmed it and rendered a judgment thereon in favor of the plaintiff.

      I. P. Walker, for plaintiff in error.
    1. At common law references were unknown as a part of the proceedings of courts. The statute has provided a method by which upon special submission and report judgment may be entered, but if the statute is not strictly pursued no judgment can be entered. Where a .cause is pending which is not referable by statute, or is referred in any other way such reference works a discontinuance and the court would have no power to render judgment on the award. It would amount to a mere- arbitration. 13 Wend. 293.
    2. A reference can be ordered only where a long account is tobe examined. 6 Wend. 503; 10 id. 577. The record shows that there are two notes and does not show any bill of particulars or items of an account. 5 Cow. 588. But if it was referable then it was error to render judgment against the defendant’s affidavit showing injustice in the report, which was not contradicted. 8 Cow. 136 ; 4 Wend. 178.
    3. The judgment was rendered at a special term. The time for holding it was not fixed by statute, and the power to fix the times and places of holding courts is given by the organic act to the legislative assembly. The legislative assembly was bound to exercise this power and could not delegate it to the district judge.
    No appearance for the defendant in error.
   Dunn, C. J.

The defendant in error, Broom, brought his action of assumpsit against Messenger, the plaintiff in error, in the district court of Milwaukee county, at the June term, 1844. At the same term the defendant in the action filed his plea of non-assumpsit with notice of set-off; issue was taken thereon and the cause continued to November term, 1844, and then continued to June term, 1845. At said term the case was, by consent of parties, referred to referees, and the referees reported to the court thereon at the same time. The report was accepted, and judgment entered in favor of Broom for the amount of $255.12, as awarded by the referees. On same day the judgment was set aside, and the report re-referred to the referees, that they might in addition report whether or not they were duly sworn, before entering on their duties as referees, and to have the execution of their report authenticated. Afterward at same term, the referees made their second or amended report accompanied by proof, that they had been duly sworn before entering on their duties, and proof of the due execution of their report or award. On the same day, plaintiff in error, Messenger, filed his bill of exceptions which was signed by the court, and the cause was continued. Afterward at a special or adjourned term of the said court, on the 19th day of September, in the same year, the plaintiff in error, Messenger, filed his motion and affidavits to set aside the report, for the reasons set ont in the affidavit. On a day subsequent, the 29th September of same term, the court overruled the motion and rendered judgment in favor of defendant in error, Broom, for $255.12, the sum awarded and costs. The court will dispose of the errors assigned by commencing with the sixth error, being from the nature of the objections raised necessarily first to be considered.

The position assumed to maintain this assignment of error is, that the case at bar is not referable under the statute, therefore if referred under a rule of court by consent without an agreement that the referees should report to court, and that the court should enter judgment thereon, it is an arbitration, and operates as a discontinuance. If this position be correct, the objection should have been, that the court erred in taking further cognizance of the case, it being out of court by operation of law, or the acts of the parties, instead of “that the court erred in rendering final judgment for the defendant in error, Broom, on the report, and in not rendering judgment of discontinuance.” The court will not be particular, however, on this point, but will proceed to examine the substantive merits of this objection.

The principle insisted on is maintained in 18 Johns. 22; 13 Wend. 293; 17 Johns. 129; id. 461. In all the cases cited the action was in tort, and not on contract. In the case of Green v. Patchen, 13 Wend., above referred to, Chief Justice Savage states the result of the decisions on this point thus : “That in all actions not referable by statute, if the parties refer the cause to referees, by stipulation or rule, - or both, and merely provide that the referees report, such reference is an arbitration, and operates as a discontinuance. But if the stipulation of the parties provides that a judgment shall be entered upon the report or award, and judgment is entered accordingly, the parties are concluded by their agreement, and cannot be heard to allege that the reference and judgment were not warranted by law.”

In the case of Harris v. Bradshaw, 18 Johns. 26, decided after the case above referred to of Camp v. Root, a distinction is drawn between actions in tort and in assumpsit as to their reference. In Harris v. Bradshaw, Spencer, C. J., delivered the opinion of the court. The case reported was an action of assumpsit on the report of referees under a rule by consent, but without a stipulation or direction in the rule that the referees should report to the court, and that judgment was to be rendered thereon. The declaration stated a special contract as the foundation of the first action, and that the case did not require the examination of a long account, nor was it referable under the statute ; that judgment had been rendered on the report which was afterward set aside, or vacated, for reasons not appearing in the case. Two principles are settled by the opinion, which apply in the case at bar. The chief justice says in the opinion : “I

am satisfied that, had the court of common pleas given judgment for the plaintiff on the report, that said judgment would have been above all exceptions, for although, strictly speaking, the case might not have required the examination of long accounts, the consent of the parties to a reference would have concluded them from making the objection, because, it being an action of assumpsit, there might have been long accounts. The reference was an admission that the case was within the act, and the court of common pleas would never have listened to an objection to the contrary. Had the action been in tort, then the objection to the jurisdiction of the court to refer the cause would have been open to either party on a writ of error. I do not think the plaintiff can treat the report as an award, and sue upon it. The differences between the parties were not referred, but the cause pending in court was referred; and so the parties considered it, for the plaintiff entered a judgment. This judgment was vacated, upon what grounds we are not informed, but, we must intend, for good and valid reasons ; and it appears to me that the vacating the rule for judgment annulled the report. The court of common pleas had jurisdiction, and their rule, unless itself vacated, put an end to the effect of the report. This left the plaintiff where he was before, at liberty to go to trial in the original cause,” and he concluded by deciding that the action on the report could not be sustained. In this case it is settled that, in an action of assumpsit, referred by consent, though strictly speaking, the case might not have required the examination of long accounts, the consent of the parties would conclude them from making any objections, because it being an action of assumpsit, there might have been long accounts. The reference being an admission that the case was within the act, a court would never listen to an objection to the contrary. And it is further settled that such a reference in such a cause, the cause itself being referred, as in the case at bar, does not operate as a discontinuance ; but that the cause remains in court for further proceedings, if the report be annulled or set aside. We find no conflict of authority on these points in actions of assumpsit, and are of opinion that the district court decided correctly in respect to the reference, and in refusing to consider it as a discontinuance of the cause.

The next error assigned which we will consider is, “that the court erred in accepting the report of the referees, and entering judgment thereon, without any proof of the execution of said report, or that the referees had been sworn.” Before disposing of the merits of this position, we will premise that, when parties and counsel, acting under a rule of court, upon consent, return their proceedings into court, it will be presumed that they are conformable to the rule and the law in such cases, the counsel being officers of court charged with the due and proper execution of the rule according to law, in which they are presumed to be skilled. A general, vague objecijon will not be regarded by the court. The grounds of objection should be stated by the counsel making it, so that the attention of the court may be drawn to the particular question, to be settled. From the record in this case, it was not required of the court to consider the general, vague objection made to the report. If, after judgment, a bill of exceptions is presented, in which, for the first time, the grounds of objections to the report are specified, the court may consistently refuse the bill, but admit the force of the objections thus particularly noted, set aside the judgment, and re-refer the cause to the same referees for full report.

All this was done within five minutes, as noted on the record, and before the minutes of the court could have been possibly extended on the record. No tribunal of justice has ever indulged exceptions on questions never really presented for consideration, and which were never really decided by the court. We admit that under the statute (Rev. Laws, page 210), the court could not accept the report until the execution thereof had been proved by aflidavit or otherwise, according to the practice of courts in like cases.

The practice of courts is that this proof be made and accompany the report. And as we have before said it will be presumed that this practice had been observed, until the defect be specifically objected. If the court acting within its powers over the subject, on the instant made such orders and rules as cured the defect complained of, there certainly can be no error maintained for such proceeding.

The defect being supplied and the action of the court being legal and proper, the record in this respect stands upon a sound basis. In Lee v. Curtiss, 17 Johns. 86, the court decided that the record ought to be amended according to the truth of the case so as to do justice between the parties, and ordered that the record be amended by striking out the verdict and judgment and entering in their stead a judgment of nonsuit. In Croswell v. Byrnes, 9 Johns. 133, it is clearly laid down that a court has competent power at a subsequent term to set aside a judgment of the former term for irregularity ; but that it must be done by a formal judgment extended on the record, a mere entry on the minutes, setting aside a judgment of record, would not effect the object. The maxim in this as well as in other cases is, that nihil tarn naturale quam quidlibet dissolvo eo modo quo ligatur. And it has been frequently held that the courts cannot regard any proceeding as a matter of record until it is enrolled, by which we understand as applicable to practice in our courts extended on the record. 1 Salk. 329 ; 1 Ld. Raym. 243 ; Jenk. Cent. 25. If a court has power over its solemn judgments formally extended on the record even at a subsequent term, then a fortiori it has power over its minutes and short entries at the same term and within five minutes.

For the purpose of correcting an award or report, where mistake or omission has occurred the courts will without consent of parties re-commit the report. Eller v. Edwards, 2 Binney, 43; 4 Watts, 65; 3 Serg. & Rawle, 133.

All mistakes were amendable at common law during the same term. 1 Tidd. 696; 8 Co. 157; Grill. C. P. 168.

It is also insisted that the court erred in refusing to sign the bill of exceptions first presented in this cause. We have before adverted to this refusal, and will only add that if the refusal had not been warranted, a writ of error is not the proper remedy. 2 Tidd. 864. There numerous authorities are cited to the point, which also show what kind of writ shall be used to compel the judges to put their seals to the bill. We will consider the fourth error assigned : “ That the court erred in continuing the cause indefinitely on the 3d day of July which was of the June term, 1845.” On the 3d day of July of the June term, 1845, the record in the case shows the filing in court of the amended or second report of the referees, the exceptions by defendant to the order of the court, accepting the first report and entering judgment thereon, and the further order setting aside the judgment and re-committing the report for correction. And an order in these words “ same day this canse was continued,” such continuances are made definite bylaw, and operate as continuances from the term then being holden, to the next term. In the statute of 1844, page 24, section 7 of “an act relating to the district court in the second and third judicial districts and for other purposes,” it is enacted that “it shall and may be lawful for the judge of the district courts for either of the aforesaid counties to hold special or adjourned terms at any time he shall deem it necessary, for the purpose of hearing and disposing of all motions or questions of law, and all judgments, orders or decrees that may be made or entered at said special terms shall be as valid and effectual to all intents and purposes as any judgments, orders or decrees made or entered in term time.” The argument for plaintiff in error on this point, is more speculative and ingenious than substantial and practicable.

We believe that the organic law authorizes the legislature to make just such regulations or provisions concerning the terms of our courts, as it has done in the sections of the law quoted. The times and places of holding our district courts may be prescribed by law—ninth section, Organic Act; under this power the legislature have passed a general law fixing or prescribing the times and places of holding the district courts, making therein a special provision, that the judges of the districts referred to may, ex necessitate, hold special of adjourned terms. The emergencies requiring such terms, could not of course be anticipated by the legislature, and they were left to the respective judges to decide, and the determination of the judge on the emergency, “prescribed by law” as to the time and place of holding the court. Any other construction would cripple legislative action on this subject under the organic law, and cases of emergency calling for prompt judicial action, would be unprovided for, because they could not be anticipated so as to designate time and place of affording remedy. This view appears to us to be founded in reason, and to be the aim and object of the organic act in respect to the terms of courts. The term being prescribed by law there can be no objection to the judgment, for being rendered at such term.

The remaining error assigned is, that the court erred in rendering judgment on the report of the referees, while the motion and affidavit filed by the defendant below, to set aside the report were uncontradicted by the plaintiff below.” Admitting the principles settled in 4 Wend. 198; 8 Cow. 136; 7 id. 477, the plaintiff in error does not show his claim to the benefit of those principles, on the record in this case. Because he first made a general, vague objection to the report, without specifying any thing, the two specific objections were stated in a bill of exceptions, to wit: That it did not appear in the report, that the referees were sworn, and that there was no proof of the execution of the report.” The court refused to sign the bill, because these questions had not been decided but admitted their force, and recommitted the report, for correction ih these particulars. The report was corrected and reported back to the court, with the correction. Thereupon he made other and different objections to the whole matter of the report, and accompanied the same by affidavits. The last objections were untimely and entirely inadmissible upon any and every principle of correct practice, and the court was. right in overruling then;.

He should have stated all his objections then supposed to exist at a proper time and in a proper manner; where exceptions have been filed in due time to the report of the referees, the court will, upon good cause shown, permit additional exceptions to be filed. 1 Wash. C. C. 319. We are of opinion that the judgment of the district court be affirmed with interest, at the rate of seven per cent per annum, on the principal from the rendition of judgment, and also ten per cent damages thereon to be included in the same execution.

Ordered that it be so certified to said district court to be carried into execution.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    Baker vs. The United States.
    1. Criminal law — adultery—evidence. Definite, positive proof of the offense of adultery is not required to convict the defendant, but . the guilt of the accused may be inferred from facts and circumstances sufficient to satisfy a rational and just man, beyond a reasonable doubt.
    2. Same. Where upon the trial of an indictment for adultery, which contained but one count, the prosecution proved that the accused and the , female with whom he was charged with having committed the offense, on a certain occasion slept in the same bed. Held, that it was competent for the prosecution to give evidence of other acts of the parties, tending to show an adulterous intercourse between them down to the time of finding the. indictment.
    ERROR to the District Court for Rode County.
    The case is stated in the opinion of the court.

      Edward V. Whiton, for plaintiff in error.

      A. Hyatt Smith, Attorney-General, for United States.
   Miller, J.

In the district court for the county of Rock, the plaintiff in error was indicted and convicted of adultery.

The bill of exceptions presents the following facts: There was but one count in the indictment, charging but one act of carnal knowledge, on the 19th day of March, 1846. After proving that the defendant and one Lucinda Hollenbolt slept in the same bed together, in the month of September, 1844, the district attorney asked the witness whether he had seen the said defendant and the said Lucinda sleeping together during the winter following. To this question the defendant, by his counsel, objected, which objection was overruled, and the question was allowed by the court to be put and an'swered. And the court permitted the prosecution to give evidence of acts tending to prove the charge laid in the indictment, which took place from. September, 1844, down to within two weeks of the ‘time of finding the indictment. The indictment was found and tried in June, 1846.

In almost every case of adultery, the fact is inferred from circumstances that lead to it by fair inferences as a necessary conclusion. Positive proof of the fact is not required, and from the nature of the offense, not easily made. Circumstances that lead a rational and just man to a conclusion of guilt beyond a reasonable doubt, are sufficient to authorize a conviction. “A married man going into a known brothel raises a suspicion of adultery, to be rebutted only by the very best evidence. His going there, and remaining alone for some time in a room with a common prostitute, is sufficient proof of the crime. The circumstance of a woman going to such a place with a man furnishes proof of adultery.” 2 Greenl. on Ev., § 44, p. 34. The same author, in section 41, page 32, states that the rule has been elsewhere more briefly stated, to require that there be such proximate circumstances proven, as by former decisions, or in their own nature and tendency, satisfy the legal judgment of the court that the criminal act has been committed; and, therefore, it has been held that general cohabitation excluded the necessity of proof of particular facts. Ordinarily, it is not necessary to prove the act to have been committed at any particular or certain time or place. It will be sufficient if the circumstances are such as to lead the court, proceeding with every necessary caution, to this conclusion, which it has often drawn between persons living in the same house, though not seen in the same bed, or in any equivocal situation. “The adulterous disposition of the parties being once established, the crime may be inferred from their afterward being discovered together in a bedchamber, under circumstances authorizing such inference.” The proof made in this case was not positive proof of the fact, but only of such facts as from which the guilt may be inferred. Being in bed together but once raises a presumption of guilt, but the guilt might possibly be disproved by a proper explanation of the circumstances; but being in bed together at various and different times cannot be satisfactorily-explained consistently with innocence, and tends to satisfy the mind of the guilt of the accused beyond a reasonable doubt. From the nature of the charge, and the evidence reasonably to be expected to sustain it, lath tude in the investigation must be allowed. The judgment of the district court must be affirmed.


text:
    Husbrook vs. Wilder.
    1. Promissory note — date and time oe payment not essential. A promissory note, which does not specify any time for its payment, is an acknowledgment of an existing indebtedness payable immediately, and bears interest from its date.
    2. Same. A promissory note is perfect without date or time of payment.
    ERROR to the District Court for Rode County.

      Wilder brought an action of assumpsit in the' Rock county district court on a promissory note of which the following is a copy:
    “ June 24,1831.
    “For value received, I promise to pay Cook Husbrook, or bearer, $100, as witness my hand.
    “MAHLON HUSBROOK.”
    “Indorsed.
    “ August 28, 1832, received on th® within $35.”
    The declaration contained a count on the note, and the common counts and a copy of note.
    The defendant pleaded the general issue and filed an account in set-off amounting to $155.
    The cause was tried at the April term, 1845, and a verdict and judgment were rendered in favor of the plaintiff, for $138.02.

      The question presented by the bill of exceptions and argued in this court was, whether the note in suit drew interest from its date, or only from time of demand of payment.

      David Doggie, for plaintiff in error.

      A. Hyatt Smith, for defendant in error.
   Miller, J.

The defendant in error sued the plaintiff in error in assumpsit, and declared specially upon the note in suit, with the common counts, and a copy of said note attached. The note was payable for value received, without the mention of any time. The only question raised at the trial was, whether the plaintiff was entitled to interest from the date of the note. The court decided in favor of the plaintiff.

A promissory note is perfect without date or time of payment. Mitchell v. Culver, 7 Cow. 336. This note is an acknowledgment of an existing debt, payable immediately, and bears interest from its date. Francis v. Castleman, 4 Bibb, 282; Collier v. Gray, 1 Overt. 110; Russell v. Whipple, 2 Cow. 536; 15 Wend. 308. The judgment of the district court must be affirmed.


author: Irvin, J.

text:
    Webster vs. McKinster.
    1. Right to poll jury — dissent. When a jury returns a verdict either party has a right to have the jury polled, and if one or more of them dissent, no judgment can be rendered thereon, but such dissent must be decided and unequivocal and not coupled with conditions involving considerations which the jury had no righi^to consider.
    2. Same. Where a jury returned into court with a verdict for the plaintiff assessing his damages at $15, and upon being polled two or more of them answered that it was not their verdict if costs followed thereon. B.eld, that as the question of costs was not within the province of the jury, that the verdict was properly received and a judgment rendered thereon was affirmed,

      ERROR to the District Court for Racine County.
    The case is stated in the opinion of the court.

      E. W. Evans and J. B. Jilsun, for plaintiff in error.

      Levi Hubbell, for defendant in error.
   Irvin, J.

This case was commenced by the defendant in error before a justice of the peace, before whom judgment was obtained for the sum of $31.50, from which the plaintiff in error appealed to the district court of Racine county, in which for the first time, he made defense, by pleading the general issue with notice. For the trial of the issue thus made, a jury came, who found and returned into court, a verdict in favor of the plaintiff below and defendant in error, for $15, when it appears the jury was polled, and two of them answered that it was not their verdict if costs followed thereon. The defendant below, and plaintiff in error, then filed his motion to set'aside the verdict for the following reasons: “1st. That'when the jury were polled in said case, as to the verdict of said jury being $15 damages in favor of the plaintiff, three of said jurors answered that the same was not their verdict if costs were to follow the damages. 2d. And that one of the jury answered, that was not his verdict if defendant was to pay any costs which motion was overruled and judgment given, and to which ruling the plaintiff in error excepted, and prosecuted a writ of error to this court.

No principle of practice is better established than the one, that either party has the right to have the jury polled when they return a verdict into court, and if any one or more of the jurors dissent, no judgment can be rendered thereon ; but that dissent must be decided and unequivocal, and not coupled with conditions involving considerations with which the jury had nothing to do. In this case the jury had nothing to do with the subject of costs, and were alone to inquire of damages, that inquiry they made and found the damages which the plaintiff had sustained to be $15 ; which fact they had no power to control or alter by any view which they might take of the subject of costs, that, in this case, being wholly foreign to their duty. Had any of the jurors positively dissented from the verdict, it would have been set aside, but having found the fact of damages, and having no power to control the force of that fact by any such considerations as were suggested in this case, the court was right in disregarding such suggestions and entering judgment for the plaintiff below, with costs of suit. It is therefore the unanimous opinion of the court that the judgment of the district court be affirmed, with interest and ten .per cent damages.


author: Dunn, C. J.

text:
    Rich and another vs. Warner.
    1. Confession of Demurrer. It is the well-established practice to allow a party to confess a demurrer to his pleadings, in which case his opponent can only insist upon the costs of the demurrer, which if not specially insisted on, will be considered as waived. Piling an amended pleading in the place of the one demurred to, amounts to a confession of the demurrer.
    3, Action on bond — pleading — practice. In an action upon abond with a condition where the jury find a breach of the condition, the plaintiff is entitled to judgment for the penal sum, and under the statute judgment will be rendered and execution awarded for such sum as is equitably due to the plaintiff at the time of rendering the judgment; if the condition of the bond be such that future damages may accrue for subsequent breaches, judgment is to be rendered for the penalty and execution awarded forthe damages already accrued; and the judgment will stand as security for such future damages, which may be recovered by seire facias.

    3. Assessment of damages. Where the plaintiff in declaring on a bond conditioned for the payment of several sums at different times, and assigned but one breach, the non-payment of one installment, though several others were then due. Held, that he might, in case he recovered, have an award of execution for the amount of all the installments which had matured at the time of rendering the judgment.
    ERROR to tke District Court for Hacine County.
    Action of debt upon a bond in tke penal sum of $700, conditioned for tke payment of $350, in several installments, some of which were due at the commencement of the action, and others became due before trial and judgment. The declaration assigned but one breach, for the non-payment of the first installment. The award of execution was for other installments, and such as became due before the commencement of the action. The instruction to the jury and all other material facts are stated in the opinion of the court.

      E. W. Evans, for plaintiff in error.
    The instruction to the jury to find for the amount of the installments due at the commencement of the action, when the declaration only alleged one installment to be 'due. The plaintiff can in no case recover a greater sum than he claims to be due. 1 Chitty’s Plead. 173 ; 13 Serg. & Rawle, 189 ; 9 Johns. 290; 5 id. 168 ; 1 id. 133 ; 5 East, 449.

      J. B. Jilsun, for defendant in error.
   Dunn, C. J.

Almira Warner, defendant in error and plaintiff below, brought her action of debt on a penal bond, in the district court of Racine county, at the October term, 1845, at which term the plaintiffs in error and defendants below filed their special demurrer to the plaintiff’s declaration, assigning as special causes of demurrer: “1st. That the declaration alleges several distinct breaches of the conditions of the bond. 2d. That the declaration is argumentative.” And thereafter, at the same term, the plaintiff filed an amended declaration, and the court overruled the demurrer, and entered a rule to plead in sixty days. In answer to the rule, the defendants filed their plea of non est factum. At the April term, 1846, the cause being at issue, was tried, and upon the finding of the jury the court rendered a judgment in favor of the plaintiff for $700, the penalty of the bond, and a further judgment awarding execution for the sum of $134.95 damages, and the costs.

The plaintiffs in error present for the consideration of this court two assignments of error in the court below, viz.: 1st. “The court below erred in overruling the demurrer to the plaintiff’s declaration.” 2d. “The court below erred in instructing the jury to find for the amount of the penalty of the bond, and to assess the damages for the number of installments on the bond due at the commencement of the suit, when in the plaintiff’s declaration there was but one installment, of $25, alleged to be due on said bond.”

On the first error assigned, it is only necessary to recur to the long established practice in pleading, permitting the plaintiff to confess the demurrer, and take leave to amend his declaration. This was virtually, though not formally done, in the case at bar. The demurrer being confessed, by filing an amended declaration avoiding the special causes assigned in the demurrer, the defendants could only insist upon the terms of costs, which seem, from the record, to have been waived, or not to have been asked of the court. If the defendants insisted upon the demurrer as applicable to the amended declaration, it was proper to overrule it; if to the original declaration, it had been virtually confessed. The former must have been the view taken by the defendants’ counsel and the court. The only matter the defendants could complain of is, that costs were not imposed on confessing the demurrer and amending, and this could have been obtained upon request. The practice of the court is to observe the rules of the law of pleading in such cases, and impose terms, when insisted on. If not, the costs abide the event of the suit. Although the ruling of the court is not technically formal, we are of opinion that it is substantially correct, and that the first error assigned is not sustainable.

The material question to be considered in this case is embraced in the second assignment of error, and relates to the instruction of the court to the jury on the assessment of damages. We consider the instruction of the court to the jury “to find for the amount of the penalty of the bond,” as a direction to inquire whether the condition thereof had been broken. If so, the legal consequence is that the plaintiff is entitled to judgment for the penalty, and if the jury did find by their verdict a breach, and the legal consequence of a breach of the bond, it does not affect the charge of the court, or the verdict.

The remainder of the instruction to the jury, “to assess damages for the number of installments on the bond due at the commencement-of the suit,” is mainly objected to for the reason that the plaintiff has assigned but one breach in his declaration, insisting that the assessment should have been on that breach only. The statute of the Territory on this subject, commencing on page 208 of Revised Statutes, sections 69, 70, 71, 72, 73, is a literal copy of the statute of Massachusetts on the same subject. The proceedings in New Hampshire and Massachusetts (and formerly in Maine) in debt on bond with a penalty, are according to the course of the common law, by which the plaintiff can assign only a single breach. Sevey v. Blacklin, 2 Mass. 542; Bailey v. Rogers, 1 Greenl. 193; Mooney v. Demerit, 1 N. H. 187.

When it appears to the court that the penalty of the bond is forfeited, judgment is to be entered (by statute provisions) for such sum as is equitably due to the plaintiff at the time of rendering the judgment. And if the condition of the bond be such that future damages may arise for future breaches, judgment is to be rendered for the penalty, and execution awarded for the damages already accrued, and the judgment stands as security for future damages, to be recovered by scire facias. 2 Mass. 542; Waldo v. Forbes, 1 Mass. 10.

We conceive that the practice in Massachusetts, under a statute of which ours is a copy, is a sound practice, and not in conflict with any rule of pleading according to the course of the common law ; and certainly there is nothing peculiar in our laws or condition which would warrant a departure horn this practice, strengthened and confirmed since 1798.

By virtue of the statute, the defendants may have relief against the penalty of the bond, by availing themselves of the equitable powers of the court, which, can render judgment only for the damages really sustained by the plaintiff by the breaches of the condition.

The plaintiff might complain that the instruction of the court was not sufficiently favorable to her rights. The authorities referred to, maintain the position, that it is right in such cases, to assess damages for breaches up to the rendition of the judgment. Of this however, the defendants below, who are plaintiffs in error, cannot complain, as the omission is to their advantage.

The judgment of the district court of Racine county is affirmed with interest at the rate of seven per centum per annum on the amount of damages assessed from the rendition of the judgment, and also ten per cent damages thereon.


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    Carrington and another vs. Eastman.
    1. Attachment — garnishee. In a proceeding in an attachment suit against a garnishee, after appearance and plea to a scire facias, it is too late for the garnishee to question the validity of the proceedings against the defendant in the attachment.
    2. Subscribing witness. Where a written instrument is offered in evidence, which is attested by a subscribing witness, his testimony must be produced in proof of its execution, or a sufficient excuse for not doing it must be shown before it can be received in evidence, unless there is some statute which dispenses with such proof.
    3. Same. On the trial of an issue in a garnishee proceeding, an assignment attested by a subscribing witness, from the principal debtor to a third person of a sealed note, was offered in evidence without producing the testimony of such witness or any excuse for its omission. Held, that the assignment was properly rejected, and that the statute which makes a written instrument evidence in certain cases that it was signed by the person by whom it purports to have been signed, until its execution is denied under oath, was not applicable to such a case.
    4. Seabed note—assignment of. A sealed note is a mere chose in action which may be assigned by parol as well as by deed, and it is not • necessary that it be delivered with the assignment, as both law and equity will take notice of the assignment and protect the rights of the assignee.

      5. Gabnishment — equitable assignment. A chose in action which has been equitably assigned is not subject to subsequent attachment as the property of the assignor.
    ERROR to the District Court for Qrant County.
    The case is fully stated in the opinion of the court.

      T. P. Burnett and Moses M. Strong, for plaintiffs in error.
    1. The court erred in rejecting the assignment of the note to William Yineyard. 3 Binn. 394-400.
    2. The statute which makes an instrument evidence that it was signed by the party by whom it purports to have been signed, until its execution is denied under oath, rendered the receipt competent evidence without the testimony of the subscribing witness.
    id J. Dunn, for defendant in error.
    1. The assignment of the note, to be available must have been of equal dignity with that instrument, and should have been under seal {Parkinson v. McKim, ante), and should have been on the note itself, Effect is given to equitable assignments to prevent fraud, but an attaching creditor, not chargeable with fraud, may attach the legal demand. 3 G-reenl. 347 ; 6 id. 212; 6 Yt. 600; 15 Mass. 485.
    2. It was incumbent on the garnishees to show payment by proof, but if the assignment was available, notice was necessary to the attaching creditor: 12 Johns. 343; 19 id. 95; 4 id. 403 ; 3 id. 425; 11 Mass. 491; 4 id. 450; 10 Cow. 444.
    3. The statute, to obviate the necessity of proof of the execution of written instruments, applies only to such as are brought forward or put in issue by pleading them, and does not extend to such as are produced as mere matters of evidence, and the production of which might not have been reasonably expected.
   Irvin, J.

This case was brought up on error to the district court of G-rant county, where Ben. C. Eastman, the defendant in error, commenced a snit by attachment, returnable to the September term of said county for 1844, against A. P. Field, to recover the amount of certain territorial scrip and certificate, which the said Field received of the said Eastman, and as appears from his receipts, agreed to take to the treasury of the United States, and there collect the amount for said Eastman, or return to him the scrip and certificate. It is averred that he neither paid the amount nor returned the scrip and certificate. In addition to the oath to procure an attachment, the said Eastman made the following : “ Wisconsin Territory, Grant county, ss. Personally appeared, Ben. O. Eastman, who, being duly sworn, doth depose and say, that he has good reason to believe, and verily does believe, that Timothy Barrington, administrator, and Mary J3. Vineyard, administratrix of the estate of Miles M. Vineyard, late of Grant county, deceased, in the capacity of administrator and administratrix, and Frederick Hollman, were indebted to and owing Alexander P. Field, and have credits in their hands in favor of the said Field as aforesaid, to wit, one note dated March 14, 1842, payable to said Alexander P. Field, one day after date, for $1,500, with interest, signed M. M. Vineyard and Frederick Hollman, and that there is a large amount due on said note, to wit, $500, as this affiant believes, and further saith not,” which oath was taken be fore the judge of that district.

Upon the filing of these affidavits, the usual process was sued out against the defendant, A. P. Field, and the persons mentioned in the last affidavit as garnishees, and upon which the following return was made by the sheriff: “Grant county, ss, May 25, 1844. Served this writ this day by reading the same to Frederick Hollman, and also by leaving a true and attested copy thereof with him, with a written notice that he appear and answer as garnishee in this case as- the law directs, by direction of the plaintiff in this cause; and also, by direction of said plaintiff, I summoned, as garnishee,. Mary S. Vineyard, as administratrix of Miles M. Vineyard, deceased, and Timothy Qarrington, by leaving true and attested copies of this writ, with written notices, as the law directs, at their last and usual places of abode, with persons of suitable age and discretion to understand the same, and to whom I explained the contents thereof, neither of them being at home at the time; and I do also return that the said Alexander P. Field was not found in said county, or summoned.”

Upon the return of this process, two of the garnishees appeared and made disclosures, and said administratrix, denying all indebtedness whatever to the said Field, among other disclosures disclosed as follows : “ That the said promissory note referred to in the affidavit in each of the above entitled causes, was, as she is informed and believes, on or about the 8th day of May, 1844, assigned and transferred by the said Alexander P. Field to William Vineyard, a copy of which assignment and transfer, as has been shown to her, is as follows :

“ St. Louis, May 8,1844.
“For value received I do hereby assign ard transfer to William Vineyard, of Platteville, a note given to me by Miles M. Vineyard, and Frederick Mollman, for the sum of $1,500, upon which said note various payments have been made to me by James R. Vineyard, for which he has vouchers and receipts ; the said note was and is now in the hands of Benj. Eastman, Esq., of Platteville, who is hereby authorized and directed to account to said William Vineyard for the proceeds of said note, or deliver to him said note as he may elect.
(Signed) “A. P. FIELD.”
“And the said William Vineyard is, and was, at the time of the service of notice in the said causes as aforesaid as she is informed and believes, the legal owner of the said note and whatever sum yet remains unpaid thereon.”

Frederick Mollman, one of the other garnishees, appeared and disclosed as follows :

Q. 1. Are you acquainted with Ben. Q. Eastman and Alexander P. Field, the parties to this suit %
A. I. am.
■ Q. 2. Have you at any time been indebted to Alex ander P. Field, and of what nature was the liability ?
A. I signed a note to Field, in conjunction with Miles M. Yineyard, for $1,500.
Q. 3. At what time was the note executed, and was it or not under seal %
A. I cannot recollect the time, but presume three years or longer; I don’t recollect whether or not it was under seal.
Q. 4. Is that the instrument under seal (the annexed instrument being shown to witness) % .
A. It is.
Q. 5. Have there been any payments made by you on this note ?
A. None by me.
Q. 6. Has this note ever been presented to you since its execution for payment %
A. It has not.
Q. 7. What amount, if any, on this note remains due ?
A. I do not know.
Q. 8. Do you know of any transfer by A. P. Field, of this note %
A. An article of writing was presented to me, setting forth that a certain note given by M. M. Yineyard and F. HoTlman, on which there had several payments been made, and which was in the hands of Ben. O. Eastman, Esq., was transferred to William Yineyard, dated 8th of May, 1844, and signed by A. P. Field.
Q. 9. At what time did you become aware .of the transfer, and when did you first see the transfer ?
A. It was some time in 'the summer, in June or July, perhaps August, I cannot be sure, I saw the transfer in one of these months.
Q. 10. By whom was the transfer shown to you ?
A. By James E. Yineyard.
Q. 11. Was the transfer under seal?
A. I don’t think it was.
Q. 12. Had you been summoned as garnishee in this . case previous to the transfer being shown to you ?
A. I had, a short time before.

There were other and further disclosures not necessary now to be stated.

Upon the process served, as hereinbefore stated, judgment by default was taken against A. P. Field, and a scire facias sued out against the garnishees, on the return of which they interposed a plea, in which they deny any and all indebtedness to the said Field, and deny that they had, either then, or at the day of the service of the process of attachment on them, any property, credits, goods or chattels whatever of said Field; upon which issue was joined, and the parties went to trial before a jury, and a verdict was given for the plaintiff.

During the progress of the trial, it appears, from exceptions taken, that the defendants offered in support of their plea, the transfer from Field to William Yineyard, which was objected to for the reason, that the assignment and transfer was not under seal, and could not, therefore, pass the interest in the note referred to, which was under seal. The court sustained the objection and excluded the evidence. The note referred to was in these words and figures, to wit:

“$1,500. Mineral Point, March 14, 1842.
One day after date, for value received I promise to pay A. P. Field, or order, $1,500 with interest.
(Signed) M. M.' YINEYAED, . [l. s.]
(Signed) FEEDEEICK HOLLMAN. [l.s.]
(Witness) Moses M. Strong.”

The defendants further offered the following receipt, to wit:

“Eeceived of Miles M. Yineyard by the hands of James Yineyard, the sum of $47.50, to be credited on a note I hold on Miles Yineyard and Frederick Hollman, dated in March, 1842, which note has been lost or mislaid.
(Signed) A. P. FIELD.
Signed in presence of Alonzo Platt.
October 14, 1843.”

To the reading of this receipt, objection was made, on the ground that the receipt was witnessed by a subscribing witness, who lived in the Territory, and that it was necessary to produce his testimony in proof of said receipt, which objection was sustained by the court. After the parties had rested, the court instructed the jury: “ That the garnishees in this case must satisfy the jury by proof apart from their disclosures, that the debt to Field had been paid before the service of notice on them as such garnishees, or they are responsible to the plaintiff in tills proceeding.

“The transfer of the note of Miles M. Yineyard and Frederick IIoTlman to William Yineyard, not being under seal, is not sufficient to defeat the plaintiff in this proceeding. The note to Field being under seal, the legal right remained in him, and any written transfer of said note made by him, not under seal, did not divest him of his legal right, or prevent the writ of attachment from holding the money due on the note in the hands of the garnishees ; and the court will not say that a transfer or assignment under seal would be sufficient in law for that purpose.”

After a trial and verdict under these various rulings and instructions, the defendants moved for a new trial on these grounds, and the further one, that the court erred in rejecting the testimony of James R. Yineyard ; and as this court is not informed for what purpose he was offered as a witness, nor for what reason rejected, we shall have to disregard that point altogether.

In the assignment of errors, many other errors are complained of, such as defects in the affidavit upon which the writ was allowed ; total want of legal service, etc., to all of which the ready reply is, that if ever it were competent for the garnishees to take advantage of such defects, it is too late for them to do so after their appearance to the scire facias, and plea to the merits.

The only points then necessary to be noticed in the decisions and instructions of the court are : 1st. The rejection of the assignment and transfer of the note from Field to William Yineyard, and the receipt which was offered in evidence. We shall notice the second of these points first, and say that there is no principle of law better settled than the one, that whenever an instrument of writing is offered in evidence, which is attested by a subscribing witness, the testimony of that witness, in proof of the instrument, must be produced, or an excuse given for not doing it, unless the statute shall otherwise provide ; and not regarding our statute as having done so, and no excuse having been given for the non-production of such testimony, the district court committed no error in rejecting the receipt as testimony in the cause.

In relation to the first; it is Well settled, that the instrument assigned and transferred in this case is a chose in action (1 Bac. Abr. 329, 330, title, Assignment, and Notes; 2 Black. Com. 442); and that a chose in action may be assigned is equally well settled. 1 Bac. Abr. 329, 330; title, Assignment, and Notes; 5 Bac. Abr. 880; title, Obligation A., and notes; 2 Black. Com. 442; 4 Pet. Abr. 630, 631, 632; 5 id. 404. The assignment may be by parol as well as by deed, and therefore need not be by deed. 4 T. R. 690; 4 Taunt. 326. Nor does the fact that the deed ■ or chose in action was not absolutely delivered with the assignment make any difference, as both law and equity will take notice of such an assignment and protect it. 1 Bac. Abr. 329. All the right and interest which Field had in the note, as it is called, passed from the date of the assignment and became vested in William Yineyard, and' that assignment being made at a date anterior to the service of the attachment, the interest therein could not be reached or affected by it; nor is a chose in action, which has been equitably assigned, subject to attachment as the property .of the assignor. 3 Binney, 394.

It is the opinion of a majority of this court, that the district court erred in excluding the evidence of the assignment and transfer of the note from Field to William Tineyard, and the instructions thereon given to the jury, and therefore reverse the decision with costs, and direct that this decision be certified to that court that a new trial may be had in the cause.

Dunn, C. J., dissenting.


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    Bowen and another, Admrs., vs. Burnett.
    1. Claim and improvements on public lands not assets. A squatter’s claim on the public lands, and improvements made by him thereon, are not assets in the hands of his executor or administrator.
    3. Inventory and appraisal may be corrected. If a judge of probate errs in directing a claim to be inventoried and appraised, which is not assets, he has the right and it is his duty, to correct the error when discovered.
    3. Administrator. The acts of an administrator under the mistaken direction of the judge of probate are not culpable, bat are entitled to indulgence.
    4. Recovery in case op a devastavit. Where an administrator has committed a devastavit of an insolvent estate, the most that a creditor can recover against him is his pro rata share of the assets.
    ERROR to the District Court for Crawford County.
    Action brought by John Burnett against Elias S. Bowen and Jared Warner, administrators of the estate of Christopher Bowen, deceased. The case is stated in the opinion of the court.

      J. T. Mills, for plaintiffs in error.
    1. The judgment which was the foundation of this action, having been obtained before the lapse of one year from the time of granting administration on the estate of the defendant’s intestate, was a nullity.
    2. The administrators were justifiable in making the payments in question, because they then supposed the estate was solvent. Suffering a judgment by default is not an admission of assets. Wis. Stat. 213 ; 12 Mass. 571.
    3. They are responsible only for the sum actually wasted (2 Wms. Exrs. 1108; 4 Call. 380), and a mistake of administrators as to the property inventoried, and its liability, will not bind them. 9 Grill & J. 174. Payment before the insolvency of an estate is known, or through mistake, is not a devastavit. 4 Call. 303; 7 Pick. 46.
    4. If they are liable at all, it is only for the plaintiff’s pro rata, in proportion to the whole amount of assets and debts. 17 Mass. 380.

      T. P. Burnett, for defendant in error.
   Irvin, J.

This case is so fully set out in the bill of exceptions allowed by the judge who tried the cause, that it is deemed unnecessary to make any other statement of it. That bill is in the words and figures following : “Be it remembered that on the 11th day of May, 1846, before the Hon. Charles Dunn, judge of the first judicial district, came as well the said plaintiff by T. P. Burnett his attorney, as the said defendant by Brunson and Mills their attorneys, the right of trial by jury being waived and the matters of fact and law submitted to the court. The following facts were proven before the court by the witnesses respectively offered by the parties, and the points and matters of law hereinafter recited were insisted on by the defendants. It was shown by the record and evidence of J. H. Lockwood, the judge of probate of said county, that Christopher Bowen died intestate in the month of September, 1840, that said defendants became his administrators by letters taken out in October thereafter —that appraises were appointed, and at December term, 1840, of said probate court, an inventory of the estate of said intestate was returned by said Elias 8. Bowen and sworn to by Mm.

It appears from said inventory that exclusive of the property set apart to the widow, there was stock and personal property to the amount of $442.45, and in addition thereto an improved unentered claim on public land in said county valued at $1,600, which said judge ordered to be appraised and charged to said administrators, that said judge of probate, on the 12th of June, 1841, learning that an unentered claim was not legal assets, did decide that said claim should be rejected from the inventory and advised the said defendants in consequence thereof to report said estate insolvent, which the administrators then acordingly did; and the said administrators realized nothing from said claim. It also appeared from the final settlement of the estate, which was made in March, 1842, that, besides said claim, the defendants were allowed $60.50 for unavoidable losses, that the unpaid debt of said Christopher Bowen, deceased, as proven before the insolvent commissioners who made report in January, 1842, were $1,361.26.

It further appeared that at the May term, 1841, Marsh, Pelton, and said plaintiff severally obtained judgments against said administrators. Marsh in the sum of $86.25; Pelton in the sum of $91.87; and said plaintiff in the sum of $287.25, on wMch judgment the present action was brought,

That, on the 26th of May, 1841, said Pelton levied on the property of said estate and sold assets.to the amount of $114.52 (his judgment and costs) ; that on the 5th of June, 1841, Elias Bowen, one of administrators, voluntarily paid Marsh $93.46 (his judgment and costs), and on the 10th of June, thereafter, this plaintiff, the said Bwrnetb, ordered execution out on his said judgment, and sold property to the amount of $9.78 ; that said Elias 8. Bowen voluntarily paid a debt to one Savage out of the assets of the estate of $44 in the winter of 1840-41; and the evidence being closed on the hearing of said cause, it was then and there insisted upon by the attorneys of the defendants that the plaintiffs ought not to recover, because:

1. The judgment of said plaintiff, on which his said action is brought, is a nullity, having been obtained within a year from the administrators taking upon themselves that trust.

2. That said administrators were legally justifiable in paying Pelton, Marsh, and Savage, while they retained as appeared from this inventory, a claim on public lands and other property, more than sufficient to discharge the debts of said estate.

3. That if said administrators had actually committed a devastavit in paying Pelton, Marsh and Savage, they were only responsible to the plaintiff, a creditor, for the sum actually wasted, and no further.

4. That, inasmuch as the estate became insolvent on the 12th of June, 1841, and as the amount of unpaid debts is considerable, that said plaintiff could obtain but his_pv0 rata of property wasted, if any such there was.

And the counsel for the plaintiff did then and there insist, that said judgment obtained by said Burnett was not a nullity, that said administrators were not legally justifiable in discharging the judgments of Marsh and Pelton, and paying the debt due to Savage at the time they paid the same ; that if said administrators did pay and misapply the assets in the discharge of said demands, they were responsible to the said plaintiff for the whole amount of his judgment on which he now sues, and that although the estate did become insolvent on the 12th of June, 1841, and although there are now large demands against said estate wholly unpaid; yet that the said plaintiff was not only entitled to his pro rata of the sums misapplied, but to the whole amount of his said judgment, and the court being then and there sufficiently advised, did decide that the judgment on which said plaintiff brought his action was a good and valid judgment; that said administrators were not legally justifiable in paying Marsh and- Savage, and allowing Pelton to collect his debt by execution, though at that time said land claim was regarded by them as assets applicable to the payment of creditors and on their inventory ; that if said administrators committed a devastavit by paying Marsh, Pelton or Savage, they were responsible to said plaintiff for the whole amount of his debt or claim, and that said plaintiff was "entitled to his entire judgment against these administrators though their intestate’s estate became insolvent on the 12th of June, 1841, and although there is a large amount of debts still remaining unpaid;’ ’ to which decisions, etc., exceptions were taken.

An improved unentered claim is not assets in the hands of an executor or administrator, and when the judge of probate, upon being informed that the intestate had died in the possession of an improved claim upon public land, directed the administrators to have it appraised as assets, he committed an error, and having jurisdiction of tbe subject, when he became satisfied that he had fallen into error, it was his duty to correct that error at the earliest moment when he properly could do- so. With this claim as assets, the estate was clearly solvent, without it, it was as clearly insolvent. Being satisfied that the direction to appraise it was wrong, he advised that the estate be returned as insolvent, which was done accordingly. The payment of debts made during the existence of this judicial mistake, it is fair to infer, was made under its influence, and if so, they were innocently made, and with none of that culpability which naturally attaches to the idea of a devastavit; under which circumstances the administrators would be entitled to the fullest indulgence of the law. By the laws of this Territory (Rev. Stat. 303), provision is made for the settlement of estates by which debts of dignity are first to be paid, and the rest, when the estate is not insolvent, are to be paid pro rata. The most then that could have been had by the plaintiff in this case, had all the proceedings by the administrators been regular, would have been a pro rata payment, bnt as irregularities in the course pursued by the administrators, have intervened, subjecting them to a devastavit, all that under the circumstances, the plaintiff below could rightfully recover as on a devastavit, would be his pro rata share of the assets of the estate. To this conclusion we are drawn from examination of the authorities with reference to the facts and circumstances in this case. See 4 Call. 308; 8 Mass. 282; 17 id. 380; 3 Pick. 261; 7 id. 46.

The district court therefore erred in giving judgment for the full amount of the plaintiff’s demand, and the judgment must be reversed with costs.

Dunn, C. J., dissenting.


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    Chouteau, Jr., and others, vs. Hooe et ux, Exrs.
    1. Judgment—executors, etc. In an action against executors or administrators for a debt of their testator or intestate, in which they suffer judgment by default, it is error to render a judgment in the alternative, that if it is not levied out of assets, etc., then that it be levied out of their own proper goods, etc.; suffering judgment by default not being an admission of assets.
    2. Becords of court. There is no law requiring the records of the district court to be made out at length and signed by the judges before the close of the term.
    3. Power of court to correct errors. The district court has power to correct an erroneous award or entry of judgment at any time within one year after its rendition, irrespective of the number of terms which may have elapsed.
    4. Motions used in place of writ of error coram: nobis. Motions in many respects have become, in practice, substitutes for writs of error coram nobis, and the court can on motion, correct the mistakes of the clerk.
    5. Execution. Where an execution has been returned and become functus officio,■ there is no necessity for moving to quash it, and a motion for that purpose will be denied.
    ERROR to the District Court for Gr'awford County.
    There were cross writs of error brought to reverse certain decisions of the district court for Crawford county.

      Pierre Chouteau, Jr., 'John B. Sarpy, John P. A. Sanford, Pierre Menard, Felix Talle and Joseph A. Sire, partners, under the name of Chouteau & Co., brought an action against Joseph Rolette, the testator, in his life-time, and which was pending at the time of his death. After Mrs. Hooe, his executrix, had qualified, a citation was issued requiring her and her husband to take upon themselves the defense of the suit, and in obedience to the rule, they appeared in the action, and a rule was entered requiring them to plead to the action by a given time, and their default for want of a plea was entered, and a writ of inquiry was awarded, but it was set aside by agreement, and the damages were by consent, assessed by the court, amounting to $5,474.50, for which sum final judgment was rendered near the close of the term, but it was not written out and extended on the record book and signed by the judge. The clerk in extending and recording the judgment, entered it as a judgment, to be levied of the assets of the testator, Rolette, in the hands of the defendants, to be administered if any were found, and if not, then to be levied on the proper goods and chattels, lands, etc., of the defendants.
    October 23, 1844, an execution was issued against the assets of the testator in the hands of the defendants, on which the sheriff returned nulla bona and a devastavit. July 21, 1845, an execution against the proper goods and chattels, etc., of the defendants was issued. At the October term, 1845, the defendants moved the court to amend the record of the judgment, and to quash the executions issued thereon, upon which motion the court ordered that part of the judgment containing the alternative judgment de bonis propriis to be expunged, and quashed the second execution, but refused to quash the first. Subsequently, and at the same term, the defendants moved the court for a rule upon the sheriff to amend his return upon the first execution, according to the facts attending the levy and return of said execution, and the court ordered that the sheriff have leave to amend his return. The plaintiffs excepted'to the ruling of the court amending the judgment and quashing the second execution. The defendants excepted to the refusal of the court to quash the first execution.

      T. P. Burnett, for OTiouteau & Qo.

      F. J. Dunn, for Hooe and wife.

   Miller, J.

The plaintiffs sued the defendants in assumpsit in the district court for Crawford county. At the October term of said court for the year 1844, judgment was ordered for the plaintiffs by default of defendants, after an assessment of damages, but the clerk did not extend the order of such judgment in full on the record book of said court until after the adjournment of the term. When the clerk made up the record of said judgment, he recorded at length a judgment de bonis testatoris et si non de bonis propriis. Afterward a writ of fieri facias de bonis testatoris was issued, and returned nulla bona and devastavit. Then afi. fa. de bonis propriis was issued, returnable to the October term of said court for the year 1845. At this term a motion was made to the court to vacate the alternative clause of the judgment, and to quash the two writs of fieri facias. The court did vacate said alternative part of said judgment, thereby leaving it a judgment de bonis testatoris, and did quash the last mentioned writ of fieri facias, and overruled the motion as to the first. On motion of the defendants, the sheriff at the same time had leave to amend his return to the first writ of fieri facias so as to strike out that part relating to the devastavit.

The plaintiffs assign for error the orders of the court amending the record of the judgment, and quashing the said second writ of fieri facias.

The alternative part of the entry of the judgment is not according to correct practice under our statute. Sections 106 and 107 of our statute, on page 212 of the Revised Statutes, are copied from the Revised Statutes of New York, where it is decided that a judgment by default against executors or administrators is not an admission of assets. Butler v. Hempstead's Admrs., 18 Wend. 666.

We have no law requiring the judge of the district court to have the records made out at length, and to attach his signature thereto, before the final adjournment of the term. If the extent of the business is such as to admit of it, there would be a propriety in it, but the records and proceedings of the court are just as valid without it. But if such were the rule, either by statute or the rules of court, it wofild be deemed merely directory, not in the least affecting the rights of parties. Astor and others v. Grignon and others, ante, and affirmed by the supreme court of the United States, is a case in point.

The court had the power to correct this error, even at the third term or one year after the rendition of the judgment. In the case of Matheson's Administrators v. Grant's Administrators, 2 How. 263, the following proceedings of the circuit court were affirmed. A general verdict was given, and the judgment arrested on account of the misjoinder of counts. Afterward, and before a writ of error was brought, a motion was made by the plaintiff to set aside the order arresting the judgment, and for leave to enter a nolle proseguí upon the second count. An affidavit was filed by the plaintiff’s counsel, stating that the only evidence offered on the trial was on the part of the plaintiff, and that the defendant offered no evidence whatever. The nature of the evidence was also stated, and the facts stated in the affidavit were not contradicted. The circuit court set aside the order arresting the judgment a year after it was made, and allowed the verdict to be amended by entering the same nunc pro tune on the first count only. In England, if the judgment be entered de bonis propriis instead of de bonis testatoris si, etc., it is considered as a mere clerical mistake, which the court below will amend on motion, even after the record has been removed by writ of error, and argument in the court of errors. Short v. Coffin's Executor, 5 Burr. 2730; 1 Saund. 335, note 10. Motions are substitutes' for writs of error coram, nobis in many respects! The court can correct mistakes of tke clerk upon motion.

It was tke duty of tke court to quask tke writ of fieri facias de bonis propriis, after amending tke judgment, and tke amendment of tke return to tke first writ oí fieri facias by tke sheriff being allowed. Tkese two orders of tke court were just suck as tkis court would kave directed to be done upon writ of error, and as tkat court kad tke power to act therein, tkis court cannot be expected to do otkerwise tkan to affirm tke orders kere complained of.

Tke defendants kave assigned for error tke refusal of tke court to quask tke writ offieri facias de bonis testatoris. Altkougk we do not concede tkat tkis is tke subject of a writ of error for not being a final judgment in tke cause, and resting in discretion- as a matter of practice ; yet we kave taken tke point into consideration, and determine tkat tkere was no error tkerein. Tke skeriff kaving returned tke writ, tkere was no necessity for a motion to quask ; tke writ kaving become functus officio, and remaining on file in court.

Let tke judgment of tke district court be affirmed.


text:
    The Janesville Bridge Co. vs. Stoughton and others.
    1. Perry franchise. Where a party obtained a grant of a ferry franchise, and in consequence of the increase of travel, concluded to abandon his right, provided a charter should be granted to himself and others creating a corporation for the purpose of constructing and maintaining a bridge at the same place, and such charter was granted and the bridge was erected, whereby his ferry franchise became of no value, and he subsequently became the owner of all the stock in such corporation. Held, that he could not claim any benefits or powers beyond those conferred by the charter of the bridge company, by virtue of his former ownership of the ferry franchise.
    3. Power of corporations. A corporation is a mere creature of the act to which it owes its existence and derives all its powers from it, and has only such powers, rights and privileges as the act of incorporation confers.
    3. Corporate powers strictly construed. Grants of corporate powers or privileges are strictly construed, and nothing will be held to pass by implication.
    4. Bridge charter—whether it conferred an exclusive right— INJUNCTION. An act was passed incorporating a bridge company, with permission to construct and maintain a bridge at a certain point across a river, with the right to exact, and receive tolls of such persons as might pass over it. Held, that the act did not grant an exclusive right to construct and maintain a bridge across such river at that place, but that another company might be legally incorporated, with power to build and maintain another bridge, which would not obstruct or embarrass the passage over the first bridge, though the construction and maintenance of such new bridge might diminish the tolls and profits of the original bridge company; and that it could not on that ground maintain a bill to prevent the erection and maintenance of the new bridge. Irvin, J., dissenting.

    5. Injunction—when granted. To entitle a party to an injunction, there must be such an injury threatened or apprehended as from its nature, is not susceptible of being adequately compensated by damages at law, and it must be a case of strong equity and imperious necessity.
    6. Injunction. For a mere or uncertain diminution of the value of complainant’s property, a court of chancery will not grant an injunction or abate a nuisance.
    APPEAL from the District Court for Rock County.

      The Janesville Bridge Company filed its bill against Luke Stoughton, Guy Stoughton, Asa Blood, James M. Burgess, George Brown, and I. N. Wagoner, setting forth that in 1838, one Henry F. Janes obtained from the legislative assembly of the Territory a grant of a franchise to keep a ferry across Rock river, at Janesville, and in pursuance thereof, kept said ferry in operation, taking tolls for the same; that in the fall of 1838, Charles Stevens, of Janesville, purchased of said Janes the said ferry right and boat, etc., for $150, and kept said ferry, and purchased expensive apparatus therefor; that owing to the great increase of business at Janesville, said right became valuable; that in the year 1841, said Stevens offered to relinquish said franchise, provided he could obtain from the legislative assembly a charter to build a bridge and take tolls, etc.; that said Stevens and others applied to and obtained from the legislature an act to incorporate the Janesville Bridge Company, the complainant, which act had not been amended or repealed; that the county of Rock had not purchased its bridge, and that all the persons or corporators named in the first section of the act, eight in number, except said Stevens and W. H. H. Bailey, declined to take stock in the company ; that Stevens and Bailey and one Lappin opened books for subscription, according to the act, and subscribed in all twenty-five shares, and that no other person subscribed thereto ; that the subscribers became thereby empowered to erect and maintain a bridge at Janesville, across Rock river, until the year 1865, subject to the right of Rock county to purchase the same; that in 1842, complainants commenced said bridge, within one year from the passage of said act, and completed it within the time and in the manner required by the act, whereby they became entitled to take tolls, etc.; that some time in 1843, Stevens purchased of Bailey and Lappin all their stock in said company, and became sole owner; and by the construction of the bridge, said ferry franchise became of no value. The bill charges that the defendants, without permission of the legislature, or any authority whatever, have been collecting materials to erect a bridge across Rock river, and have commenced to build the same at Janesville, within sixty rods of complainant’s bridge; that they are employing workmen and collecting materials, etc., with the intention of permitting persons, etc., to cross the same, to the great injury of complainant and its rights, and to the destruction of its franchise; that Rock river has been meandered and returned as navigable by the United States surveyors ; and that complainant’s bridge is ample and sufficient to accommodate the public, etc.
    The bill prayed an injunction, which was ordered. To ibis bill the defendants interposed a general demurrer, and after argument, the district court overruled it, and decreed a perpetual injunction against the defendants, restraining them from building their projected bridge, and from this decree they appealed.

      A. Hyatt Smith, for appellants.

      Edward V. Whiton, for appellee.
   Miller, J.

The Janesville Bridge Company filed its bill on the chancery side of the district court for the county of Rock, in which, it complains, that Charles Stevens purchased a ferry, right across Rock river at Janesville ; and in consequence of the increase of travel, he concluded to abandon his right, provided a charter incorporating a company for the construction of a bridge across the river at the same place could be obtained from the legislature. That an act was passed by the legislature, incorporating the said. Charles Stevens and seven other persons by name, and such others as might associate with them; by the name and style of The Janesville Bridge Company. A copy of said act is inserted in the bill; and it authorizes the company to construct the bridge across the river ; to create and receive subscriptions for stock, and to take certain tolls therein mentioned. It is also set forth, that all the said persons refused to accept the charter, or-take stock, but the said Charles Stevens and another, who with another person, subscribed for all the stock and constructed the bridge. That the said river had been meandered by the United States surveyor; and that the said defendants, without obtaining permission from the legislature of the Territory, and without any authority whatever, have been collecting materials to. be used in constructing a bridge across said river ; a.nd have actually commenced the construction of' the said bridge at Janesville, and within sixty rods of the bridge of complainants. And that the said. defendants are constructing said bridge with the intention of permitting persons with their horses and teams to cross on the same, when it shall be completed, to the great injury of the rights and property of complainants, and to the entire destruction of their franchise. And that the bridge of complainants is sufficient to pass all the traveling public across said river at Janesville. And an injunction was prayed.

To this bill the defendants filed their demurrer, which after argument, was overruled by the court, and for want of an answer, a perpetual injunction was decreed against the defendants. From this decree the defendants appealed to this court.

It not being necessary to determine whether this Janesville Bridge Company, from its own showing in the bill, was legally constituted and now exists as a legal corporation, or not, the court will not investigate or decide the question. Nor need we at this time determine the propriety or constitutionality of the act declaring rivers navigable for certain purposes, approved February 9, 1841, by which aE rivers and streams of water in the Territory, in aE places where the sgme have been meandered and returned navigable by the surveyors employed by the United States government, are declared navigable to such an extent, that no dam, bridge, or other obstruction may be made in or over the same without permission of the legislature.

It is not the province of a court of chancery to punish the defendants for the alleged attempted violation of the foregoing statute. At all events, this biE and this suit cannot reach them for an attempted infraction of this law.

Chailes Stevens, one of the alleged corporators, cannot claim any privEeges, benefits or powers beyond the charter or act of incorporation, by virtue of his former ownership of the ferry right. He voluntarily surrendered it, upon the enactment and acceptance of the charter, and the construction of the bridge. There is no rule of legal construction which could authorize the court to connect these rights, or that should induce the court to construe the act of incorporation, or determine this suit more favorably to Stevens, on ■ account of his former interest in, and surrender of his ferry right. His surrender of that right was his own voluntary act for a supposed benefit.

In its corporate capacity, a corporation is a mere creature of the act to which it owes its existence. It may correctly be said to be precisely what the incorporating act has made it; to derive all its powers from that act; and to be capable of exerting its faculties only in the manner the act authorizes. Decisions of the supreme court of the United States adhere to the principle, that public grants, such as corporation charters, are to be construed strictly, and are in this respect perfectly consistent. .Nothing passes by implication in grants by the public. Amery v. The Providence Ins. Co., 2 Cranch, 127; The Providence Bank v. Billings and Pittman, 4 Pet. 514; Jackson v. Lamphire, 3 id. 289; Beaty v. The Lessee of Knowles, 4 id. 165; Fleckner v. The Bank of U. S., 8 Wheat. 338; Charles River Bridge v. Warren Bridge, 11 Pet. 420.

The act incorporating the Janesville Bridge Company, granted to the company permission to construct a bridge, and the right to exact and receive tolls of such persons as might pass thereon. It did not grant an exclusive right to construct a bridge across that river, even at Janesville. The provisions above mentioned embrace the whole grant. The company is not vested with any exclusive privileges over the waters of Rock river above or below the bridge ; nor does the charter secure to the company the whole travel at that point. The company is only authorized to exact tolls of such persons as may choose to use the bridge. The legislature did not even pretend to raise an inference or presumption, that this should be the only bridge in that vicinity. Another company may be legally incorporated for the purpose of constructing a bridge; or these defendants may hereafter be authorized by law to construct a bridge at the place where it is alleged they were at work. Charles River Bridge v. Warren Bridge, 11 Pet. 420, is a case conclusive upon this point.

The bridge about to be constructed will not, from its distance and location, affect the use of complainant’s bridge by obstructing the way to it, or interrupting the passage over it; nor is the franchise of the complainant in any way affected by the construction intended or complained of. The right of the company to take tolls remains the same, whether a second bridge is erected or not. The reduction of the receipt of tolls is the only ground, of complaint. As there is no stipulation on this point in the grant, nor none to be inferred from its terms, it is to be considered whether this is a sufficient consideration to call for the exercise of chancery jurisdiction in behalf of this company. To entitle a party to an injunction or to the exercise of chancery powers, it is well settled, that there must be such an injury, as from its nature is not susceptible of being adequately compensated by damages at law. 2 Story’s Eq., § 204. It must be a case of strong equity and imperious necessity. There must be something peculiar in the case, so as to bring the injury under the head of quieting possession, or to make out a case of irreparable mischief. The complainant must have a vested right, either legal or equitable, which may be greatly, if not irreparably, affected by the act sought to be restrained. 6 Johns. Ch. 46. For a mere or uncertain diminution of the value of the property of complainant, a court of chancery will not award an injunction, or abate a nuisance. 2 Story’s Eq., § 204 ; 16 Vesey, 342; 1 Dickens, 164. Now, having shown conclusively, that this company was not possessed of an exclusive right to all the travel, or to all the tolls of all persons who may cross that river at that point in any manner, they cannot claim to be possessed of such a vested right, in law or equity, to all such tolls, as to entitle them to relief in this court for an alleged reduction of the tolls or income. It is a mere diminution of the value of property, for which this court will neither award an injunction or abate a nuisance. Suppose we'had a law prohibiting all private banking ; that the legislature should incorporate a banking company, which had commenced business, and had all the business and custom of the country, there is nothing to prevent another incorporation of a similar character, nor would the court allow an injunction against the second bank at the instance of the first company, on the allegation that it was drawing, and likely to draw off, its custom and business. And suppose that a company should commence business without a charter and in direct violation of the prohibitory statute, and should draw from the incorporated company its customers, and greatly reduce its business and profits, these certainly would not present such cases of irreparable mischief, or deprivation of vested rights, as to entitle the first company to relief in a court of chancery; they would be cases of mere diminution of the value of property; mere reduction of income, for which a court of chancery will not grant relief. For the violation of the public prohibitory statute, the persons injured would be required to resort to their legal remedies.

For these reasons it is the opinion of the court that the decree of the district court should be reversed, and that the said district court be directed to dismiss the complainant’s bill and dissolve the injunction.

Ordered accordingly.

Irvin, J., dissenting.

       Ferrall v. Woodward, 20 Wis. 458.