author: Judge Miixer:

text:
    WILLIAM B. SLAUGHTER, pl'ff in error. vs. JOHN BEVANS, def’t in error.

      )

    The return of a writ is presumed to have been made on the return day, unless the date of the velum specially and. positively appears by indorsement on the wviti'self or an entry of record, showing a different time when the return mis actually made.
    In proceedings by attachment, the first default is so much a matter of form, tint fo emer it without previous publication or before proof of publication is filed, is not error. '
    An affidavit for a writ of attachment cannot be amended under any circumstances.
    The iud wsernont of satisfaction on an affidavit for a writ of attachment, is an indispensable pre-requisite to the issuing of the writ, and where a writ has been issued without such indorsement., the officer cannot be permitted to come into court, pending the suit, and indorse his satisfaction.

      The law does not confine tho plaintiff in an attachment, in suing out hw writ, to the county where the defendant resides or where he is found; tho affidavit that the defendant has properly in the county where the writ issues, is a sufficient authority for commencing in such county, if the point were doubtful.
    Where the plaintiff had obtained a decree in chancery for the balance due him upon the coming in of the master’s report on foreclosing t> mortgage, such decree may be pleaded in bar as a former recovery, in nn action at law between the same parties for the recovery of the same demands.
    Bevans sued out a writ of attachment against Slaughter in Ilia Iowa District Court, oil tho 10th September, 1339. On the some day, tin different affidavits, other writs were issued to the counties of Brown, Dane,Grant, Milwaukee, and Racine. There was no indorsement of satisfaction on tho affidavit for the writ, by the officer before whom it was made. The sheriff of Iowa county returned the writ directed to him nulla bona, and served personally, but how or when the personal service was made, does not appear by the return.’ The writs to Grant and Racine appear not to have been returned at all, and levies were made upon property in Brown, Dane, and Milwaukee. At the April term, 1840, the first default of the defendant was entered; and at the September term, 1840, the plaintiff asked leave of the court for the officer before whom the affidavit was made to come in and indorse his satisfaction, which was objected to by the defendant, but the court overruled the objection, and granted the leave, and thereupon the officer indorsed upon the affidavit that he was satisfied, at the time whenjt was made, of tho truth of the facts therein stated, to which the defendant excepted. At the same term, and previous to the indorsement of satisfaction, tho second default of the defendant was entered, and the plaintiff afterwards filed his declaration in assumpsit on the 21st September, and on his motion the defendant was ruled Jo plead to the said declaration by the next morning, and on tho same day proof of the publication of notice of tho writs to Grant, Brown, Milwaukee, and Dane, was filed for the first time, but no publication appears to have been made of the writs issued to Iowa and Racine; afterwards, at the sime term, the defendant, in response to the rulo to plead, triado a motion to dismiss tho proceedings, on the ground that at the commencement of the suit lie resided, and still continued to reside, in the county of Dane,'which fact was made to appear to the satisfaction ot the court.
    At the April term, 1840, the motion to dismiss was overruled
      by the court, to which tho defendant excepted; whereupon, the defendant filed a plea in abatement, traversing tho truth of the affidavit, upon which an issuo .was made and a jury emparinellod, who returned a verdict sustaining the affidavit; and afterwards, at tho same term, tho plaintiff filed a second declaration in assnmp-sit, and afterwards, on the 20th day of April, tho defendant filed his plea of general issue, and also the following special plea in bar:
    “And for further plea in this behalf, the said defendant, by leave of the court hero had, says: that heretofore, to-wit: in the September term, in the year 1840, in the said District Court in the said county of Iowa, and after the commencement of this suit, the said plaintiff, by the consideration, judgment and decree of tho said Court, recovered, in a certain suit in chancery then and there decided in tho said District Court, in which the said John Bovans was complainant, and said William B. Slaughter was defendant, against the said defendant, the sum of five thousand three hundred and eighty-seven dollars and -cents, on occasion of the not performing of the same identical promises and undertakings in the said declaration mentioned, together with his costs by him about his suit in that behalf expended, whereof the said defendant was .convicted, as by the record of the proceedings thereof, still remaining in the said District Court, at the county aforesaid, more fully and at large appears, which said judgment and decree still remains in full force, and not reversed, satisfied or made void, and this he is ready to verify, wherefore he prays judgment,” &c.
    The plaintiff filed a joinder in issue to the plea, of general issue, and a general demurrer to the special plea.
    At the September term, 1841, the plaintiff'entered a nolle pro-sequi upon bis second declaration, and the record does not show to which declaration the pleas were pleaded, but they wore both for the same cause of action,- and at the same term the court sustained tho general demurrer to the defendant’s special plea in bar.
    Previous to this, Bevans had filed a bill in chancery against Slaughter in the Iowa District Court''to foreclose a mortgage that had been given to secure the payment of the same promissory notes that wore declared upon in this case. Upon the corning in of the master’s report of the sale of tho mortgaged premises, the court decreed against Slaughter the payment of the balance due of the mortgage debt, according to the provisions of the statute-Pending Ibis suit, (he complainant made a motion in the chancery cause for leave to proceed in his action at law, which was granted by the court.
    This cause was tried at tho September term, 1841, and upon tho trial, the jury returned a verdict in favor of the pliintiif for §3308 49, upon which tho court rendored judgment. Slioghter sued out a writ of error, and assigned the following errors in tho record of the proceedings of the court below.
    1. Tho court erred in entering the first default of the defendant before proof of publication tiled.
    2. The court erred in permitting the affidavit to bo amended.
    3. The court erred in rendering final judgment before two defaults of the defendant liad been entered.
    4. The court erred in overruling the motion to dismiss.
    5. The court erred in sustaining the demurrer to the second plea of the defendant.
    G. The court erred in rendering final judgment in the case.
    Moses M. Sthoxg, for pl’if in error:
    The errors assigned in the proceedings, prior to the filing of the plea, may be considered as technical. But the proceeding being by attachment, the plaintiff must he held to tho strictest compliance with tho law, in every particular. The default taken at the Aprii term, 18.0, was erroneous, because then no pioof of publication had been filed. The only question is, tvhother filing tho proof at the September term cures this defect? We say it did not, because a man cannot, regularly, be defaulted until bn lias been legally notified, and proof of that fact is made to the court. Again, the proof that was filed did not relate to tlm original writ, and of course it was not sufficient to support tire proceedings on tho original writ, if the default was illegally entered, it was error in the court to rulo the defendant to plead.
    At (lie lime of the first default, satisfaction was not indorsed on tho affidavit, and the proceedings were at that time irregular, if not void. To cure this defect, the court permitted tho officer to come in at the September term, and indorse bis satisfaction. We contend that the court liad no right to allow tho indorsement to be made at that lime; but if it bad, the previous proceedings were irregular, and on that account alone, the judgment ought to be reversed.
    The next point is of more importance. The court below ough t to have sustained the motion to dismiss made at the September term, 1840. The writ to Iowa county was returned nulla bona, and of its issuing there has never been any notice published. The defendant resided in the county of Dane. Tho general law in relation to civil proceedings does not apply to cases of this kind. This is a proceeding in. ram, and cannot ho had in a county whore the deft ndant does not reside, and where ho has no property.
    The defendant’s plea of former recovery, if true, was certainly a bar to tho action. It is not denied that fotmer recovery is a good plea in bar. This plea is in technical form, and no-objection was taken to it on that account. Then, by all rules of pleading, tho plaintiff should have replied and made an issue of fact upon it; but he chose to demur, and make an issue of law, and the court, upon this issue, decided against the defendant. The court cannot (raved out of the record and consider facts, in disposing of a demurrer, and unless this plea is defeated by facts, I cannot imagine upon what other ground it can be disposed of against tho defendant.
    Jacksox, for defendant in error:
    The first objections taken, arc against the regularity of the defaults. Tire statute does not require that proof of the publication of notice should he filed before taking a default. It is immaterial, so that publication is duly made, at what time the proof of it is filed. The record shows, that although tho proof was not filed at ihe lime, that the publication was made, and that is all that is required. But if the default was irregulaily taken, tho defendant should have come into court and moved to set it aside. Tho defect, if any such existed, was cured by the plea; 1 Cowcn’s Treatise, 4915, 524; and the defendant is estopped by his plea from al-ledging any tiring against the rcgnlaiily of tito previous proceedings. The defects are also cured by verdict. Slat, Wis. 258.
    The indorsement of satisfaction was made, nunc pro tunc, and does not appear to be objectionable. It was certainly allowable under the statute of amendments.
    The plaintiff below certainly had the right to bring his suit in Iowa county if lie chose lo do so. The statute authorizes suits by attachment to Ire commenced in any county, and writs to bo issued to any other county in the Territory where there is property. The plaintiff’s affidavit stated that the defendant had property in Iowa county, and although the sheriff did not find it, tho defendant himself was found, and personally served, and (he cotut decided correctly in overriding the motion to dismiss.
    The last point is on die decision of tho court on the demurrer to tho special plea. This suit, and the chancery suit, were used concurrently to collect a debt secured by mortgage, and for which the mortgaged premises) were wholly inadequate. The statute authorizes the plaintiff to pursue concurrent remedies in such case; Slat. Wis. 293. In the chancery cause, the complainant, hud obtained leave of the chancellor to proceed in this action at law, both cases being in the same court, and pending at the samo time. The court is always hound to notice its own records, and to know what has been done in tho court. The plea was against the leave obtained in chancery, and might have boon rejected on motion, Tho decision on tho demurrer was proper in the case.
    Du.vsr, in continuation:
    If there were any irregularities in the proceedings, they were cured by tho plea and verdict; the defendant not having taken advantage of them at the proper time. Questions as to the publication of notice, arc questions of fact, and where they are disputed, they rmist he tried by a jury; they are not questions of law for the decision of the court.
    There is no question of the propriety of tho decision in allowing the officer to indorse his satisfaction upon the affidavit; that is, that he was satisfied at the time when it was made. It did not alter the fact, but furnished the court with the evidence of the fact. The officer had enough before him to satisfy him. Tho record shows the best evidence that the facts existed to entitle the plaintiff to tho writ. The defendant traversed the affidavit by a plea in abatement, and (he jury found the affidavit to be true. The statute of amendments fully authorized the discretion which the District Court exercised in allowing tho amendment to bo made.
    The decision of tho court on the demurrer, is the only doubtful point in tho case; and when the record is examined, there will bo enough found to sustain that decision. The plea itself is had, because it sets up a judgment of former recovery in a suit in chancery. A judgment cannot bo entered in a chancery cause, and such a plea cannot be sustained as a good plea of former recovery. Beside, the plea was against a former order of the same court, in a suit in chancery between the same parties. The re-feords of the court are matters of law, and the court ip bound to Cake notice of them, and may do so on demurrer.
    Buenett, in reply:
    There are four principal points for the plaintiff in error, that will embrace the whole case.
    First: The objections to the defaults taken, the service of process, and the publication of notice.
    Second: The permission of the court to enter the indorsement of satisfaction on the affidavit.
    Third: The overruling of the motion to dismiss.
    Fourth: The decision on the demurrer to the special plea in bar.
    First: This is a proceeding under the attachment, law, as it stood in 1839. Under that law, the only way of bringing the defendant into court, was by the levy of the writ and publication of notice. The writ operated on the property alone, and there was no such thingas personal service. Publication of notice was made to take the place of a summons. If this has not been duly made, the writ shall be quashed; there is no alternative, for so says the law. ■ Publication, then, is an affirmative matter which the plaintiff must make appear, and if he fails to do so, the court must act upon the case. If the defendants is sued by summons, the court can take no action in the case until the sheriff returns the process served; and in attachment, publication of notice standing in the place of the service of a summons, the court cannot regularly default the defendant until it is proven to have been duly made. In this case, there never has been such a publication as the law requires; there has been none of the original writ, the basis of all the subsequent proceedings. The proceedings being irregular in this particular, the judgment ought to be reversed. But it is said that we have waived all these defects by pleading to the declaration; and the court has been referred to the law as laid down in Coweffs Treatise. Counsel seem to mistake the law and its application. In the same authority it is stated, immediately following what has been read to the court, that where the defendant appears and makes a motion in the cause, which is overruled, and afterwards pleads, the plea does not admit the regularity of the proceedings. This is our case. We made a motion to dismiss, which was overruled, and had to plead in answer to a rule of the court, and the plea admits nothing.

      Second: The court below ought not, as we contend, to have allowed the officer to indorses his satisfaction on the writ, pending the proceedings. This court had decided at the August termj 1840, in the case of Mayhem Dudley vs. Mayhem, that the satisfaction of the officer is an indispensable pre-requisite to the issuing of the writ, and this can regularly appear in no other way than by his own indorsement of the fact. This, then, wo take to be the established law; and that the clerk had no authority to issue the wiit until the proper affidavit, with the requisite indorse-menf, was filed with him; and that a writ issued without this authority was void in its inception. If the writ was issued without authority of law, it was not in the power of the court to correct it. The court cannot, by permitting officers to come in, pending the suit, and perform acts which the law says are pre-requisite to the issuing of the writ, give those acts a relation back to the commencement to sustain' a writ irregularly issued. The plaintiff must make his cane perfect in the beginning, and keep it so in all its stages; and if it is wrong in the commencement, no subsequent. act of the officers or of the court, can make it right.
    Third: The court below ought to have sustained the motion to dismiss. In all other proceedings at law, the statute requires that the suit shall be brought in the county where the defendant resides, or where he may be found. Reason and analogy would say, that a suit by attachment should be commenced either in the county where the defendant resides, or where his property may be found. We admit that a person may be sued by attachment in any county where he has property, because it is through his property that he is compelled to appear; but we deny that it may done in a county where he does not reside, and where the sheriff can find no property to attach. If such be the law, it may be used for purposes of the greatest injustice and oppression. But if this ground was not sufficient, and the record presents other grounds which ought to have sustained the motion, they are proper subjects for the consideration of this court. This court said, in the caso of Domen vs. Taylor, decided at the last terra, that although a motion docs not point out particular irregularities, yet the court may notice defects apparent on the record; and that a judgment may be arrested for an objection on the face of the record, although not assigned at the time of making the motion; and the court in that case, arrested the judgment for apparent defects, although tlic particular reasons assigned by the defendant below, were of matters in abatement. This I understand to be the law, and that a motion to dismiss a suit, embraces every thing that ought to dismiss it, and that appears of record. The court will consider in this case, whether at the time of making the motion, there wore any grounds presented in the record, which would require that the suit should bo dismissed, and if so, the judgment must be reversed.
    Fourth: The decision of the court below on the demurrer, seems to me to be conclusive of the case in this court. It is not denied that a former recovery is a good plea in bar as a general principle. No objections to the form of the plea have been taken. Two grounds have been assumed here in support of the demurrer; one is, that a court of chancery cannot render a judgment, and that a recovery in chancery cannot be pleaded in bar in an action at law; the other is, that the statute authorizes proceedings in chancery and at law for the recovery of debts secured by mortgage, as concurrent remedies, and that in the chancery suit for foreclosure, the plaintiff below had obtained leave to proceed at law in this suit. On the first ground, it is sufficient to remark, that by the law, Stat. Wis. SCO, soc. 66; 292, sec. 82, a decree in chancery has the same force and effect as a judgment at law; and upon the coming in of the master’s report on the foreclosure of a mortgage, the court may decree the balance of the money due,, against the defendant, and issue execution thereon, as in other cases. The recovery, in such case, is full and complete, and execution thereon is the end of the law.
    As to the second ground: it is said that the statute authorizes concurrent proceedings at law and in chancery, to recover the came debt. This is a mistaken idea of the law. The statute was evidently intended to, and actually docs, restrict the powers and. limit the proceedings of mortgagees. At common law, the mortgagee had the right to pursue his remedies at law and in chancery concurrently, and no leave of the chancellor was necessary; our statute provides, that after a bill is filed to foreclose, no proceedings shall be had at law to recover the mortgage debt, unless authorized by the court of chancery; Stat. Wis. 293!, sec. 83. We contend that the authority is necessary to be obtained to authorize the very commencement of the proceedings at law. If the complainant wishes so to proceed, after filing his bill to forclose, lie should file his petition, or supplemental bill, setting up the ne« cessity and propriety of so proceeding, and obtain the authority before he commences at law, It cannot be the sound construction of the statute, that a party may file his bill to foreclose, afterwards commence a suit at law to recover the same debt in violation of the provisions of the statute, prosecute both to near their termination, and then obtain an ex parte order in the chancery suit authorizing him to proceed at law, and that this order will relate back to the commencement of the action, and legalize the whole proceeding. But all this is not very material to the question. The decree rendered at the coming in of the master’s report, for the balance, of the money due on the mortgage, has all the properties, force, and effect of a judgment at law, tobe carried into effect by execution, as in other cases, and of course must be a bar to any subsequent proceedings to recover the same debt. If this plea in bar can be obviated by the previous order of the chancellor, how is the plaintiff to avail himself of it? By demurrer? Certainly not; for on demurrer, the court cannot notice any thing out of the record of the particular case in applying the law to it. Counsel say that the court is bound to notice its own records. This is true in all cases where they can be legally brought to notice, but the court cannot look into the records of other cases for fads to sustain a demurrer; for this would be making an issue of fact instead of law, and upon such an anamolous issue, the court would have to try the fact. The law is, and was so decided here in the case of Haney vs. Ciarle, a few days since, that this court cannot notice any thing that is not legitimately a part of the record of the particular case under consideration; and this court cannot here take any notice of the scrap from the record of the chancery suit which the clerk has certified and sent up. If the plea in bar is to be avoided by the leave obtained in chancery, the matter should have been replied, setting up the authority, which would have brought the sufficiency of the order in issue. The plaintiff below, having failed to do this, and relied upon his demurrer, and that having been sustained by the court, the judgment must for this cause, if for no other, be reversed.
   Opinion of the Court, by

Judge Miixer:

This suit was commenced by attachment in the District Court of Iowa county, by John Bevans against William B. -Slaughter. It was predicated on an affidavit of plaintiff, charging the defendant with fraudulently disposing of his property, so as to hinder and delay his creditor. The affidavit was made before a justice of the peace, the 10th day of September, 1839, (before the act in the Revised Statutes was amended,) and the justice had neglected to indorse his satisfaction thereon previous to the issuing of the writ. At the September term of said District Court for the year 1840, the court allowed the said justice to appear in court and make the necessary indorsement of satisfaction on said affidavit, nunc pro tunc, the defendant opposing the same. In pursuance of the tenth section of said act, additional writs to the writ issued to the sheriff of Iowa county were issued on the same day to the sheriffs of Brown, Grant, Milwaukee, Dane, and Racine counties, and on which property was attached in said counties. It appeared by the motion filed to dismiss the writ and proceedings, that the defendant before and at the time of the commencement of the suit resided in Dane county. The court overruled the motion to dismiss the writ and proceedings, and the cause proceeded to final judgment.

The first error assigned for our consideration is as follows:

The court erred in recording the first default of the defendant before proof of publication filed.

The third section of the act concerning attachments, directs the clerk who issued the writ, upon the return of the writ, to make out an advertisement, which is to be published within thirty days. When these writs were returned, does not appear. The return of a writ is presumed to have been on the return day mentioned therein, unless the date of the return specially and positively appears, by indorsement on the writ itself, or entry of record. By the seventh section, the first default of the defendant is to be entered at the first or return term, which could not be done if the writ had not been returned in time for the publication, which may not have been issued in time, or if so, may be retained in the sheriff’s hands until the return day. The first default is so much a matter of form, that the entry thereof without previous publication, or proof of the same, is not error.

The second error assigned is, that the court erred in permitting the affidavit to be amended. There was no amendment made of the affidavit, nor could there be any, for an affidavit of this kind is not amendable under any circumstances. The error assigned, from the argument, we are to infer, has a reference to the permission to the justice to indorse his satisfaction. This court decided at the term of 1840, in the case of Mayhew & Dudley vs. Mayhem, that the satisfaction of the officer is an indispensable pre-re-quisite; and that can regularly appear in no other way than his own indorsement of the fact; and that the clerfc could not properly and legally issue the writ without such evidence of satisfaction. The same principle was reiterated at the term of 1841, in the case of Morrison vs. Fake. And the legislature was so well satisfied of the propriety of this rule, that in the act to amend the act concerning the writ of attachment, approved February 16th, 1842, it was incorporated therein. From this it will appear that the indorsement of the justice should not have been allowed, and that the District Court erred therein.

The third error assigned is, that the court erred in rendering final judgment before two defaults of the defendant had been entered.

At the September term, 1840, which was the second term, the defendant appeared and filed a motion to dismiss, which, at the April term, 1841, was overruled. At this term, the defendant filed his pica in abatement, which was disposed of against him, when the defendant filed his plea of general issue, and a plea of former recovery. At the September term following, the cause, being at issue, was tried by a jury. This statement is an answer to the error assigned. The defendant’s second default could not have been legally entered in the face of his plea.

The fourth error assigned: That the court erred in overruling the motion to dismiss the attachment. The motion was made at the September term, 1840, on the ground that the defendant was, at the time of the commencement of the suit, and continued to be, a resident of Dane county, and not of the county of Iowa. The process of attachment is, in the case of a non-resident, a means of compelling a party to appear through his property. It is not regulated by the general law respecting proceedings in courts, but it is regulated exclusively by the act upon the subject of attachments. That act does not confine the plaintiff, in his suit, to the county where the defendant resides or is found. The original affidavit filed by the plaintiff set forth that the defendant had property in the county of Iowa, which was enough to authorize the writ in that county, if the point were doubtful. In this the court did not err.

Moses M. Sritone and Bukkett, for pl’ff in error.

Jackson and Dunn, for def’t in error.

The fifth error assigned is: “That the court erred in sustaining the phinthT’s demurrer to the second plea of the defendant.” The said second plea was a plea of former recovery, good on its face, to which the plaintilF demurred generally. This court is unanimously of opinion that there was error in this decision; and as error is so apparent, it is not necessary to refer to authority upon the subject.

Those embrace all the errors material on the record. It is therefore considered and adjudged, that the judgment of the District Court of Iowa county be reversed, with directions to said court to set aside the writ, of attachment and all subsequent proceedings.


source: Caselaw Access Project

author: Judge Mikler:

license: Public Domain

text:
    SATTERLEE CLARK and HENRY JONES, pl'ffs in error, vs. FRANCIS GILBERT, def't in error,

    | Error to Dane county•

      As affidavit for an attachment under the law of 1839, charging fraud, as the affumt verily believes, with an indorsement of the ofBoer thereon that tie is satisfied that the matters therein set forth are true, is sufficient.
    If the affidavit is in proper form under the statuto, the certificate of the officer that he is satisfied, is all that is required.
    A plea in abatement of a misnosmer of the defendant for want of the addition of “junior” to his name, may be regarded as a sham plea and treated as a nullity.
    Gilbert sued out a writ of attachment against Clark & Jones in the Dane District Court, on the 17th January, 1842, upon an affidavit and indorsement of satisfaction thereon, which are embodied in the opinion of the court.
    Atthe October term, A, D. 1842, the plaintiff filed a declaration in assumpsit, on a promissory noto and an account; and the defendants moved the court to quash the writ and dismiss the proceedings for the following reasons:

      “ l, The affidavit is insufficient in this, that it only states ihd belief of the defendant, and shows no fact in proof of a fraudulent intention in the defendants, to dispose of their property.
    2. The certificate of the clerk is insufficient in this, to wit: that it does not certify that he the said clerk, is satisfied of the existence of either of the causes mentioned in the statute for granting a writ of attachment.
    3. The affidavit is insufficient, in that it does not sufficiently set forth the nature of the indebtedness.
    4. The notice of the attachment was not published for six weelcs successively, as required by the statute.
    5. The return of the sheriff is insufficient, in that it does not appear that he attached the property in the presence of two freeholders of the county, or that said property was appraised by two freeholders of the county.”
    Publication of notice of the attachment, was proven by the editor of the paper, to have been made for “six successive weeks.”
    The District Court overruled the motion to quash, and the defendant, Clark, filed a plea in abatement of a misnosmer of himself, alledging that he had always been known and called by the name of “Satterlee Clark, junior,” and not by the name of “Satter-lee Clark.” The plea was overruled by the court,without any issue oflaworfact upon it; and at the same term judgment by default was rendered against the defendants for want of a plea. The plaintiff, by leave of the court withdrew his account, and the clerk ass.essed the damages upon the promissory note at $296 08, for which sum the court rendered judgment: to reverse which judgment, Clark and Jones have prosecuted this writ of error.
    WhitoN, for plaintiff's in error:
    We contend that the affidavit is not sufficient, and that the court below ought to have sustained the motion to quash the writ. The affidavit states neither facts nor circumstances, but mere belief. The decisions in New York say, that proof of facts and circumstances must be made, and that belief is not sufficient. Vos - burg vs. Welch, li John Rep. 175; Taiman vs. Bigelow, 10 Wendell, 412. Our statute requires the officer to be satisfied of facts, and the court should examine the affidavit, and see whether it contains matter sufficient legally to satisfy him that the facts existed, and if it does not, the writ should be quashed; seo the case of Morrison vs. Ream decided at the last term of this court. Bat the indorsement of the officer does not show that he was satisfied of the existence of any fact that would authorize the writ to issue; it only shows that he was satisfied that the affiant believed the facts. Belief itself is not sufficient, and satisfaction of belief amounts to nothing. The affidavit is also defective, in not stating the nature and amount of the indebtedness.
    The proof of the publication of notice, is not full and regulan The statute requires the proof to be made by the printer, or his foreman or principal clerk, Stat. Wis. 247, see. 58. The affidavit of the editor or publisher, is not the proof required.— Again, the attachment law requires the notice to be published for six weeks successively, and this proof establishes the publication for six successive weeks. This is not a compliance with the Statute. Soe Anon. 1 Wendell, CO. The first publication may have been on Saturday and the last on Monday, and there may have been six successive weeks of the publication, and still it may not havo continued for the period of six weeks.
    Field, for defendant in error:
    This court cannot examine any thing that is not properly a part of the record. The affidavit is no part of the record, unless made so by a bill of exceptions, and this court cannot notice it. 1 Hen. & Mun. 375. A bond, unless set out on oyer, and affidavit for continuance, or to hold to bail, or for any other purpose, or proof of the publication of notice, forms no pan of the record, unless embraced in a bill of exceptions; 3 Peters’ Dig. 440, 441; 1 Scammqn,233; 5 Peters, 248; 4 Hen. & Mun. 158.
    But however this point, may be considered, the affidavit will be found, upon examination, to comply fully with the requisitions of the statute of 1839, under which the writ was issued. According to the decision of this court, in the case of Morrison vs. Fake, in 1841, a substantial compliance with the statute, was sufficient.
    Moses M. Strong, in reply:
    The counsel for the defendant in error contends, that because the affidavit is not made part of the record by a bill of exceptions, its sufficiency cannot be inquired into here. To establish this principle, will be to overrule the whole current of the decisions of this court upon similar questions. In the case of Doty vs. Strong, decided in 1839, an affidavit for a continuance was filed in the court below, and the motion to continue was overruled.— Ho bill of exceptions was taken, but this court reversed the judg-xnont for error in refusing to continue the cause. The court also decided upon matters not made part of the record by bills of exceptions, in the case of Morrison vs. Fake, in 1841; and in the cases of Rotven vs. Taylor, and Morrison vs. Ream, in 1842. — ■ But the affidavit for an attachment is legitimately a part of the record, and does not require a bill of exceptions to make it so. It is the very foundation of the whole proceeding. If an attachment case were brought into this court, and the record did not show that any affidavit had been filed to authorize the issuing of the writ, would the court not reverse any judgment that had been recovered in the case? If so, the same decision must be given upon a defective affidavit.
    Both the affidavit and the satisfaction indorsed, are, as we contend, defective. The affidavit is only of the belief of the affiant, and the satisfaction is only of the belief, and not of any fact.— Neither is a compliance with the law; and in this view I think we are sustained by the decisions in the cases of Mayhem Dudley vs. Mayhem- Merrill vs. Low; and Morrison vs. Ream. Test the affidavit by considering, whether Bruce, the affiant, could be indicted and convicted of perjury if it is false? It appears to me that no such indictment could be sustained. An affidavit that could not, in any possible state of facts, support a prosecution for perjury, cannot be sufficient for any legal purposes. The very fact of there being a difference of opinion upon the affidavit,is sufficient to set it aside; for, as this court said in Merrill vs. Low, the affidavit should be so certain as to leave no doubt or difference of opinion.
    The court below ought to have required an issue, either by demurrer or replication, on the plea in abatement. If the plea was bad,the defendants should have had leave to plead over; and it was error in the court to dispose of the plea in a summary way, and give judgment in chief against the defendants. See the case of Arndt vs. Allard, decided at the August term, 1840.
   Opinion of the Court, by

Judge Mikler:

The plaintiffs in error were defendants in an action of assump-sit commenced by the defendant in error in the District Court of Dane county, by attachment. The affidavit for the attachment was made before the clerk of the said court, before the attachment law was amended, and is as follows: “ William II. Bruce, agent of Francis Gilbert, being duly sworn, doth depose and say, that Satterlee Ciark and Henry Jones, by the name of Clark &. Jones, are justly indebted to the said Gilbert, in the sum of three hundred and five dollars and fifty cents, on a note of hand and balance of account, and that he verily believes, that said Clark & Jones are about fraudulently to dispose of their property, so as to hinder their creditor, the said Gilbert:” On which the clerk make this indorsement: The above affidavit, being subscribed and sworn to, is to me satisfactory evidence that the matters therein set forth are true.”

Wuiton, Moses M. Strong, and Abbott, for plaintiffs in error.

Pieid & Botkin, for defendant in error.

A motion was made in the District Court on the part of the defendants, to quash the writ for insufficiency of the affidavit, and also of the indorsement of satisfaction by the clerk. The motion was overruled, and this forms the assignment of errors in this court.

An inspection of the paper, is sufficient to satisfy the court that the District Court did not err. The affidavit is complete, according to the form, under the statute before the amendment. The certificate of the officer is all that is required. We understand by it that the officer was satisfied that the defendants were about fraudulently to dispose of their property, so as to hinder their creditor, the plaintiff.

On the 26th day of July, which was the ninth day of this term, the plaintiff in error filed, as an additional error, that the court erred in overruling the plea in abatement, no issue of law or of fact having been made upon it. This plea in abatement, is on the alledged ground that Satterlee Clark is known as Sattcrlee Clark, junior, and is not so styled in the record, &c. The rules of court require tke assignment of errors tobo filed on the first day of the term, and the court are under no obligations to notice any filed af-terwards. The court will notice an error apparent on the record when necessary, for the sake of justice; but this appears too trivial to require this attention from us. And after a motion was filed by defendants to dismiss,for reasons filed, the court, no doubt, considered this plea as scarcely deserving more than a mere passing notice, and no doubt treated it as a sham pica.

Judgment affirmed with costs.


author: Chief Justice Dükbt:

text:
    HAMILTON STEVENS, pl'ff in error, vs. C. J. COON, def't in error,
    1 >■ Error to Jejj'erson county. )
    A coNTtt.ioT in v/ritinc;, ns follows: “In consideration of A. B. entering the west half of the north-oast quarter of section 35, in town 13, range 13, I bind myself that the said eighty acres of land shall sell on or before the 1st October next for two hundred dollars or more, and the said A. 11. agrees to give mo one-half of the amount over two hundred dollars said land may sell for, in consideration of my warranty. C. D.” “I agree to the above contract, A. B;” is void, because it binds the warrantor to the performance of a legal impossibility.
    If the contract had been that the land would bo worth two hundred dollars by a given day, a recovery might be had upon it, if the land did not rise in value to that sum.
    Coon brought an action of assumpsit against Stevens in the Jefferson District Court upon a written contract, by which Stevens bound himself that a certain half quarter section of land which Coon was about to enter, should sell by a given day for 0200, or more, and Coon agreed to give Stevens one-half of all the land should soli for over $200.
    On the trial in the court below, Coon, the plaintiff, proved the entry of tlic land, and introduced evidence to prove that the land, at the time specified in the contract, was worth about $1 25 per acre.
    Upon this testimony, the defendant moved the Court to instruct the jury as in case of a non-suit, for the following reasons:
    ftl. Because the said supposed contract was a nudum pactum. by which the defendant received no benefit, and the plaintiff no injury.
    2. Because the supposed contract assumes to bind the defendant to perform an impossibility.
    8. Because said writing discloses a gambling contract, if any.”
    The Court overruled the motion and refused the instruction asked for, and the jury returned a verdict in favor of the plaintiff for $116 50; upon which the Court rendered judgment. To reverse this, Stevens has prosecuted this writ of error.
    Beighasi, for pl’ffin error,
    declined opening the argument.
    Whitok, for dof’t in error:
    The contract upon which this suit is brought, is said to bo a
      wudum pactum. Such cannot he the construction given to tho writing; it is a fair agreement that might result in benefit to one pr the other of the parties.
    It is also alledgsd that the performance of the contract is impossible. This is a mistake. It is not only possible but probable. '
    Again, it is said that it is a gambling contract, and as such, cannot be recovered upon at law. This is obviously not the case.— Stevens knew the country and was acquainted with the land, but had not money to enter it: Coon had money, but knew nothing of the land, and upon Stevens’ representations, agreed to enter it and give him one-half of all it would sell for over $200, in a given time, and Stevens bound himself that it should sell for that sum or more by the time specified. This was a perfectly fair arrangement, and neither gambling nor against public policy; and was one that might have resulted to the mutual benefit of both the parties.
    Bbighah, in reply:
    The motion for a non-suit in this case, was in effect, a demurrer to the evidence, and submitted the question of law to the Court, whether, upon the testimony, the plaintiff could recover. If the Court decided improperly in overruling the motion, it was error. 4 Call, 17.
    The contract itself is a gambling contract, ana against the policy of the law, and as such, a recovery cannot be had upon it, 2 Mass. Rep. 8. 3 Pick. 449.
    The contract is void,because it bound Stevens to the performance of anirnpossibility. When Coon entered the land,no one but himself had any control over the sale of it. It is immaterial how high the land might have risen in valuefif Coon did not choose to sell,Stevens had no power to compel him to do so for $200, or any sum over. A legal impossibility of this kind is not binding on a party, even if he has entered into a contract for the performance. Coke on Lit. 208. Podrieron Obligations, 71. 2 Saund. Rep. 137,d.— 6 Petersdorff’s Ab. 218.
   Opinion of the Court, by

Chief Justice Dükbt:

Error is brought in this case to reverse a judgment of the District Court of Jefferson county.

Coon, plaintiff below, brought his action of assumpsit against Stevens, defendant below, to recover damages on a liability growing out of a contract, which is in the words, &c., following, viz:

‘‘Astor,.March 23d, 1839. In consideration of C. J. Coon entering the west half of tho north west quarter of section 35, in town 13, rango 13,1 bind myself that tho said eighty acres of land shall sell, on or before the 1st October next, for two hundred dollars or more, and the said Coon agrees to give me one half of tho amount over two hundred dollars said land may sell for in consideration of my warranty. HAMILTON STEVENS.”
“I agree to the above contract, C. J. COON.”
“JOHN S. HORNER.”

At the August term of the said Jefferson District Court, in tho year 1840, tho said defendant Stevens pleaded the general issue which was joined by tho said plaintiff Coon, and after several continuances, the case was tried at the October term, 1842. On the trial, the above contract, and the Receiver’s receipt to said plaintiff Coon, for the purchase money for said tract of land described, in said contract, were read in evidence to the jury; and Abraham Vanderpool, a witness testified; “ that he had visited that part of the country whore the land lies specified in said writing, and was upon the samo, as he has no doubt, and estimated the present value of the same at one dollar and fifty cents per acre, and that in October, 1839, it might be worth one dollar and twenty-five cents an acre.” Upon this evidence and testimony the plaintiff rested his case.

In view of the construction put on the contract read in evidence, the jury found for the plaintiff $118 50 in damages, and judgment was entered thereon. There is manifest error in this decision of the court. From an inspection of tho contract, it is obvious that it is not such an one as is obligatory on either party.— There is no reciprocity of benefit, and it binds the defendant below to the performance of a legal impossibility, so palpable to tho contracting parties, that it could not have boon seriously intended by the parties as obligatory on either. Tho undertaking of the defendant below is, that plaintiff’s tract of land shall sell for a certain sum by a given day.” Is it not legally impossible fol-ium to perform this undertaking? Certainly. No man can, in legal contemplation, force the sale of another’s property by a given day, or by any day, as of his own act, The plaintiff was well apprized of the deficiency of his contract on the trial, as the testimony of his witness was entirely apart from the contract sued on, and set up a new contract and such an one 03 the law would have recognized. If the contract had been that the tract of land would be worth two hundred dollars by a given day, then it could have been recovered on, if it did not rise to that value in the time. 1 Comyn on Contracts, 14, 18,18; 1 Comyn’s Dig. Title, Agreement; 1 Pothier on Obligations, 71; 6 Petersdorf’s Abridg. 218; 2 Sand. 137 (d.) The District Court could not have entered judgment on the finding of the jury in this case. The construction of the contract by the District Court, was erroneous.

Bkigbum, for plaintiff in error.

Wjiiton, for defendant in error.

Judgment reversed with costs.


author: Chief Justice Dunn:

text:
    THE UNITED STATES, ex relationi. THOMAS A. B. BOYD, vs. JAMES H. LOCKWOOD,
    1 > In quo warranto.

    A Judge of the Court cannot award a writ of quo warranto, in vacation.
    Proceedings in quo warranto, may be maintained ágainst a Judge of Probate.
    Proceedings in quo warranto must be at the instance of the Government, acting by the proper officer; they cannot be maintained at the instance of a private person.
    The proper course of proceeding in the commencement, is to lay a proper case before the Court at the instance of the proper Jaw officer, verified by affidavit, upon which the Court will grant a rule to show cause why an information should not be filed; if the cause shown is not such as puts the matter beyond dispute, the rule will be made absolute for the information, in order that the question concerning the right may be properly determined.
    On the 1st July, 1843, Boyd, the relator, presented to the Chief Justice, in vacation, a relation and affidavit setting forth, that he, the relator, was duly elected to the office of Judge of Probate of Crawford county, at the election held on the first Monday in May, 1843, by a majority of the legal votes cast at the said election; that the certificate of election to the said office ought to have been given to the relator, but that it was given to James PI. Lockwood, who had from that time since usurped the said office against the right of the relator, and concluded with a prayer of process, &c. Upon the affidavit, tho Chief Justice made an oi-dor on tho 1st July, to the clerk of tho Supreme Court to issue a writ of quo warranto in the case related. The writ was issued on the 3d July, directed to the sheriff of Crawford county, and wac served, and returned to this court.
    The proceedings were commenced and prosecuted by Best C. Eastman, attorney for the relator.
    On the second day of the term, the relator by his counsel moved tho Court for a rulo against the respondent to plead to tho relation, and on the fifth day a rule was ordered requiring the respondent to plead on or before tne eighth day of tho term. Under this rule the respondent moved the Court to dismiss the proceedings, because — 1. The process and proceedings are not authorized by law; 2. The said process and proceedings are not instituted and conducted by any person authorized by law to institute and conduct tho same.
    Burnett,, for respondent, and in support of the motion:

      The process in this case was not properly awarded, and is without authority of law. The only authority which tho legislature has given upon the subject, is contained in the judiciary act; Slat. Wis. 196. The second section says that the Supreme Court shall have power to issue writs of mandarnus, quo warranto, &c. This power is vested in the court, and not in the judges separately, to be exercised in vacation. The award of tho writ in this case, made by one of the judges at chambers, is not within tho authority given by the statute. The statute confers a naked authority on tho court to issue the writ, and makes no provision for the subsequent proceedings; and we are left to the original writ of quo warranto, to bo carried into effect as at common law. The writ of quo warranto, is in the nature of a writ of right for the government, to seize the office or franchise into tho hands of tho government; 2 Wheaton’s Selwyn, 322; Buller’sN. P. 210, 211, 212; 7 Comyn’s Dig. Title Quo Warranto, A, And at common law there is no relator; 2 Wheal. Sel. 323, note 4. This writ, then, having been awarded by a judge in vacation, and not by the court, and being upon the relation of Thomas ,A. 13. Boyd, has been commenced without authority of law, and should be dismissed.
    The proceedings are not instituted or conducted upon the proper authority. They were commenced upon the relation of a private individual;, and are prosecuted by his attorney, as any civil proceeding. It is an established principle that proceedings in quo warranto must be instituted by the government and prosecuted by the Attorney General. 2 Wheat. Sel. 323, 4; Wallace vs. Anderson, 5 Wheat. 291; Cleary vs. Deliesseline, 1 McCord, 35. The practice in New York shows that all proceedings of the kind are instituted by the government and prosecutedby the Attorney General; The People vs. Richardson, 4 Cowen, 97, and note 100 —'123. In Wallace vs. Anderson, the Supreme Court of the United States expressly decided, that proceedings in quo warran-to to try the right to an office, cannot in any case be maintained except at the instance of the government; and if instituted by a private individual without the authority of the government, they cannot be sustained, whatever the rights of the parties may bo.
    Eastman, for relator;
    The authority given in the statute to grant writs of quo war-ranto, &c., does not apply to the court alone, but embraces, in effect, the judges of the court. The third section of the act that has been referred to, gives the judges in vacation, the power to allow writs of error, certiorari, supersedeas and injunction; and also by the same section, the court is vested with all power and authority necessary for carring into complete execution all its judgments,- decrees, determinations, &c.; and for the exercise of its jurisdiction agreeably to the usages and principles of law. — ■ The meaning of the statute is the same in relation to all those necessary powers; and where it is necessary to the ends of justice, to award a writ in vacation to carry into effect any of the powers of the court, the judge may grant it. This construction will harmonize all the powers of the court, and effect the objects that were intended by the legislature.
    Formerly, a quo warranto was regarded as a criminal proceeding, in which the usurper was punished by fine, and had to be instituted by the crown. In modern times, it is considered as a mere civil proceeding to try the right to an office. 2 Wheat. Sel. 340; 4 T.R. 809; 2 T. R. 484; 2Tidd’sPrac. 838, 9.— It being in the nature of a civil suit to try the rights of the parties it is not necessary that it should be prosecuted by the Attorney General. The case of McClernand vs. Field, in 3 ScammOn, is one in point, and shows that in the Supreme Court of Illinois, tho principle is recognized of trying the right to an office on quo war-
      Tanto, at the instance of the party, without any connection with tbs' law-officer of the government.
    Burnett, in reply:
    The very distinctions that have been pointed out in the statute,show a different intention in the legislaluie than the one contended for. Where a general power is given to the court for a variety of different objects, and in- some of the cases, the power is given-to the judge to act in vacation, it excludes the idea that he can do so in the others.
    The English authorities that have been read, are founded upon the different acts of parliament, and are not based upon the common law. The British statutes never were in force in this Territory, and the decisions upon them, can have no authority m this case.
    The case of- McClernand vs. Field, was an agreed case, in which every matter of form was waived, and the right to the office, only; submitted to the court. The report of the caso shows nothing of the forms pursued, and it cannot be relied upon as governing the case before the court.
   Opinion of the Court, by

Chief Justice Dunn:

The respondent, by his attorney has submitted a motion in this-case to dismiss, in response to a rule to plead. Tire reasons in support of the motion,are: 1st. The process and proceedings herein are not authorized by law. 2nd. The said process and proceedings are not instituted and conducted by any person authorized by law to institute and conduct the same.

This is the first proceeding of the kind that has been attempted in this court. There is no law of the Territory defining the form of proceeding in such informations. The second section of the “ act concerning the Supreme aad District Courts,” vesls in this court the power of issuing writs of mandamus, quo warranto,-&.C. And the third section vests in if, “ all power and authority necessary for the exercise of its jurisdiction as the supreme judicial tribunal of the Territory, agreeably to the usages and principles of law.” In the exercise of our jurisdiction over informa-.tions in the nature of quo warranto, we must bo governed by the usages and principles of law,” and it is of the utmost importance that they should be correctly understood and defined, step by step, as we proceed.

The rule is now settled, that an information in the nature of quo warranto, will lie, to inquire by what authority any one exorcises any particular office or jurisdiction, in which the public are concerned. An office is where, for the time being, a portion of the sovereignty, legislative, executive, or judicial attaches, to be exercised for. the public benefit. That the Court of Probate of Crawford county, is an office within this definition, there can be no question; and that the proceeding by information in the nature of quo warranto may be had against the incumbent judge, is equally free from doubt.

The case of Wallace vs. Anderson, 5 Wheaton, 291, settles this principle: “ that a writ of quo warranto cannot bo maintained, except at the instance of the government, whatever might be the sight of the prosecutor, or person claiming to exercise the office in question; It does not appear, affirmatively, that the proceeding in this ease, is at the instance of the government. It is true, that the style of the relation is; “The United States on the relation of Thomas A. B. Boyd vs. James H. Lockwood." The Attorney General, or other public prosecutor, is not identified with the relation. It might be conceded that the Attorney General could not withhold his name or sanction,it being now recognized as a civil proceeding, to settle the relative claims of individuals to an office. Be this as it may, it should appear in the proceedings, to be at the instance of the government, acting by its proper officer.

The Supreme Court is vested with the power to issue the writ of quo warranto, &c. One of the judges thereof cannot, in vacation, issue or order the issuing of the writ.

At the instance of the government, by its proper officer, on the relation of Thomas A. B. Boyd, presenting a proper case verified by affidavit, this court could not hesitate to take the proper action.

The method of proceeding is to lay a proper case before the court, verified by affidavit, upon which the court will grant a rule to tbo party, to show cause why an information should not be filed against him; and unless the cause shown by him, be such as puts the matter beyond dispute, the court will make the rule absolute for the information, in order that ihe question concerning tbo right may be properly determined. Bullor’s Nisi Prius, 210, 11, 12.

We have thought it necessary in disposing of this motion against the relator, lo indicate what is viewed to be correct practice under the law applicable to proceedings of this nature, in their inception, that ho may present his case through the proper channel and with regularity.

Eastman, for relator.

Bubnett, forrespondent.

The order made by one of the members of this court at chambers, for a writ, was not made with confidence at the time, of its propriety: Subsequent full examination has satisfied that member of the court, that the order was irregular.

The motion to dismiss is sustained and the proceedings dismissed with costs.


author: Judge Miller:

text:
    CHARLES BRACKEN, plaintiff in error, vs. SYLVESTER B. PRESTON, et al. def'ts in error,

      ) > Error to Iowa county. \
    Justices of the Peace are not bound to examino jurors under oath as to their qualifications, as the authority to do so is not given them by statute.
    In proceedings in forcible entry and detainer, the complainant must set forth his title so far as to show himself within the provisions of the statute, and that title may be controverted by the defendant, but the defendant cannot sot up title in himself in defence; the title to the premises, as, between the complainant and defendant, cannot be inquired into: The complainant must sot forth a seizin or possession in himself within the provisions of the act, and whether his estate is frco-hold or a term of years, and upon the traverse, he must «rovo the allegations as to his estate, but the defendant cannot justify the force by showing title in himself.
    In caso of forcible entry and detainer removed into the District Court by certiorari, the District Court may decide upon errors in fact, but whether the Supreme Court can do so on writ of error is not settled.
    Bracken filed a complaint before William Henry, a justice of the peace in Iowa county, setting forth that he was the owner in. fee of the undivided one-third part of the east half of the northeast quarter of section 5, township 4, of range 3, east, and being in possession thereof, Sylvester B. Preston, William Kendall, William Nichols, and William T. Philips, forcibly entered upon, and forcibly detained the samo.

      Upon the trial of the complaint, Bracken wished to examine some of the jurors under oath, previous to their being sworn in chief, as to whether thoy had formed or expressed an opinion in relation to the matter to bo tried, but the justice refused to allow the qualifications of the jurors to bo inquired into, and they were sworn in chief.
    After the complainant’s evidence was heard in relation to his title, possession, and the forcible entry and detainer complained of, the defendants proved in justification, that one Andrew Rum-frey and the complainant, previous to the occupying of the premises by the defendants, had some conversation in which Rumfrey said he wished to dig on the complainant’s ground, and complainant said he might do so, but that he wanted the mineral, and Rum-frey replied, that if he would give as much for it as any body else he might have it; that after this Rumfroy mined upon the land in dispute, and after working some time, sold his interest in it to the defendants: Written transfers from Rumfrey to each of the defendants, embracing together all his interest, wore produced and read as evidence. To all of this testimony, the complainant objected, the justice overruling his objections.
    The jury returned averdict in favor ofthe defendants,upon which the justice rendered judgment. Bracken removed the proceedings into the District Court, by certiorari, and assigned the following errors to reverse the judgment of the justice.
    1. The justice error in refusing the complainant the privilege of asking the jurors under oath whether they had formed or expressed an opinion.
    2. After a peaceable entry had beer, proved by the complainant, the justice erred in suffering any testimony whatever to show that the defendants had any right of possession, for if they had any such right, they could only obtain it by due course of law, and could not justify the force.
    3. The justice erred in permitting the written transfers from Rumfrey to Philips and the other defendants, to be read as evidence for the defendants, as there was no proof that Rumfrey had any interest that he could transfer.
    4. If the defendants could justify the force under the transfers from Rumfrey, they could only do so, by showing that they and Rumfrey had complied with the terms of the contract with Bracken.

      5. The verdict was contrary to law and evidence.
    Upon the consideration of these errors, the District Court affirm,-od the judgment of the justice; to reverse which decision, Bracken has prosecuted this writ of error.
    Judge ÍKVIN, being a part owner of the land, though not interested in the subject matter of this suit, declined sitting in the. case.
    Moses M. Steohg, for pPff in error:
    On the trial before the justice, the complainant asked to have some of the jurors examined under oath, as to whether they had formed or expressed an opinion upon the subject about to be submitted, which was refused by the justice. This is the first error in the proceedings. The statute makes the inquiry a proper one in the District Courts, and it is a common law right in all cases of iriai by jury. The trial by jury before a justice is of no benefit, if a party is bound to submit to a jury that are prejudiced against him and who have pre-judged the case.
    The evidence in the case shows that the complainant was in peaceable possession of the premises, and that the defendants committed the forcible entry complained of. The justice permitted the defendants to justify by introducing evidence to show a right of possession in themselves. This they did by proving a vague conversation between one Rurnfrey and the complainant about Rumfroy’s digging on the ground, and then by written transfers from Rurnfrey to the defendants. We contend that all this evidence was improper, and should not have been admitted: That on the trial, nothing but the force complained of, could legally bo inquired into, and that in proceedings of this kind, the defendants cannot justify by showing any rightor title in themselves. But if such testimony had been legally admissible in this case, the vagne conversation between Rurnfrey and Bracken did not'amount to a contract that could be legally carried into effect. There was nothing in it that was definite, either as to terms, duration, location, or any thing else. Admitting, however, that it was a contract between Bracken and Rurnfrey, the utmost construction that could be put upon it, would only make a Rurnfrey a tenant at will, and that would not vest in him any right or interest in the soil that he could transfer to another. 13 John. Rep. 106; 2 Caine’s Rep. 169; 6 Amor. Com. Law, 389; 2 Verger’s Tenn. Rep, 249; 4 Ver. Rep. 291.

      Dunk, for def’ts in error:
    The statute of forcible entry and detainer is perfect in itself and does not refer to any other act of the legislatura to carry out any of its provisions: It must, therefore, bo construed by itself alone, without considering it in connection with any other. This statute does not provide for the challenge of jurors for the causo assigned, and the justice could not have allowed it; if he had done so, he had no power to fill the jury.
    But if the justice erred in this decision, still, if tho verdict of the jury was warranted by the evidence, the Court will not set it aside. If the Court examines tho evidence in the caso, it will be found that no other correct verdict could have been given upon it than tho one found by the jury. There was no pro'of of right in the complainant or of force by tho defendants.
    But we contend, that on certiorari, the Court cannot inquire into the facts of the caso. Errors of law alone can be examined by the Court; 10 Wendall, 422.
    Burnett, in reply:
    If we consider the very object of a trial by jury, the complainant certainly had a right to test the qualifications of the jurors called to try his complaint. Every party has a right to a fair and impartial jury who have not pro-judged his case. The statute requires that the jurors shall bo qualified to try a cause in the District Court. This cannot he applied to one qualification or another, but they must be so qualified in every respect. If then it would be error in the District Court to refuse to examine into their qualifications and force upon a party a prejudiced juror, it must be error in tho justice. But it is said, that if the evidence sustains the verdict, the court cannot set it aside, on account of any legal defects in the juvy. I do not understand this to be the law. It is immaterial what the court may think of the testimony, if there was error in the cmpannelling of the jury, and the party was deprived of a legal right in the selecting and trying the jurors, the court is bound to sot aside the verdict.
    Again it is said that the court cannot look into ihe facts on cer-tiorari, and a case in 10 Wendell has been referred to to establish the principle. By an examination of the eleventh and sixteenth sections of tho statute, it will be found that the principle cannot be applied here. The eleventh section provides that the party aggrieved by the decision or judgment of the justice, or verdict of the jury, may remove the proceedings into the District Court by certiorari, and the sixteenth section directs that in such case, the court shall give judgment according to the very right of the case. Here then the party may have the writ and remove the proceedings, although the verdict of the jury may be the only thing in the case that aggrieves him, and to say .that the court, after the cause is removed, cannot look into the facts, is to make this portion of the statute a dead letter.
   Opinion of the court, by

Judge Miller:

Charles Bracken commenced proceedings before a justice of the peace of Iowa county against the defendants, under the act to prevent forcible entries and detainers. The complainat charged that the defendants made an unlawful and forcible entry into his lands and tenements and with strong hand detained the same. The jury found for the defendants, and the case was removed by the plaintiff by certiorari, to the District Court of Iowa county, where the judgment before the justice was affirmed. The plaintiff thereupon sued out this writ of error.

The first errorassigned is; that the justice refused to have the jurors sworn to answer questions respecting their capacity to serve as jurors, and whether they had formed or expressed an opinion of the merits of the cause.

Section 26 of the act concerning grand and petit jurors, gives authority to the Distiict Courts to swear the jurors, but not to justices of the peace. There is no such authority given by law to justices of the peace. Without authority by law the court or justice has no right to require jurors to be sworn to answer questions, whether they have declared opinions on the case. It would be the duty of the justice to admonish them, that if they did not feel indiffeient, or had pre-judged tho cause or declared their opinions, they should disclose it. The Commonwealth vs. Dennie, 4 Yeats, 267. Without an act on the subject a juror may be sworn, but there is no obligation to do so.; McCorcle vs. Binns, 5 Binney, 340. In this case there is not even an allegation that any one of the jurors had formed or expressed an opinion, and the justice not being obliged by law to swear a juror on the subject, there is no error in the refusal of the justice to do so. But that there should be a law requiring it in cases before justices of the peace, there is no doubt.

The second error assigned, is as follows: The lease to Andrew Rumfrey was only a parol lease which only created a ten-antcy at will, and might terminate at the option of either partyj and Rumfrey had not such an interest as could be transferred.

This relates to testimony given on the part of the defendants, and should not have been allowed before the jury; and will not be considered here. If the cause had turned on this evidence, the judgment before the justice should be reversed. The defendants are proceeded against for forcible entry and detainer.— They have no right to justify the force by showing title in themselves. It is in the nature of a criminal proceeding against them, and they cannot justify the forcible entry and detainer on the strength of their title. In a proscution of this nature, the title to the premises, as between the defendants and relator or complainant, cannot be inquired into, though the latter is bound to set forth his title so far as to show himself within the provisions of the act. That title may be controverted by the defendant, but he cannot set up his own as a substantive matter of defence, because the question of title cannot be tried in this action; The People vs. Godfrey, 1 Hill, 240. In a proceeding of this kind, the complainant must set forth a seisin or possession within the perview of the act, or whether his estate be a freehold or term of years; and on the traverse, the allegations as to his estate must be proved by him: But the defendant cannot justify the force by showing a title in himself: He may controvert the facts by which the complainant attempts to show title in himself; The People vs. Nelson, 13 John. 340. The same doctrine will bo found in the cases of The People vs. Ricket, 8 Cowen, 226; The People vs. Leonard, 11 John. 504. And if the title of the defendant, or his right of possession is paramount, he must resort to an appropriate remedy to maintain his rights.

The third error assigned is as follows: “ It having been proven that the plaintiff was in the peaceable possession of the land, he could not have been ousted only by due course of law.”

By th£ sixteenth section of the act to prevent forcible entries and detainers, the District Court to which any certiorari is returned, shall proceed to hear and determine the same, as the very right of the case shall appear, without regarding technicalities or imperfections in the return. Evidently, from this section and other provisions in said statute respecting the removal of eauses by certiorari to the District Court, that court has the power to de» cide upon errors of fact as well as of law. This court is a court for the correction of errors in questions of law, and generally, should not inquire into the correctness of the decisions of tho District Courts in questions of fact. As the court is not full, and this case does not require it, we will not in this case, establish a rule on this subject, although referred in the argument to a case in point; Columbia Turnpike Company vs. Hayward, 10 Wendell, 422.

Moses M. Strong and Burnett, for plaintiff in error.

Dunn, for defendants in error.

In this case the complainant did not make out by proof) a forcible entry and detainer against the defendants.

Judgment affirmed with costs.