author: Chief Justice Dunn:

text:
    HENRY MERRILL, pl'ff in error, vs. GIDEON LOW, def't in error,

    1 v Error to Dane county. j
    Where an affidavit staled the cause for issuing a writ of attachment to he, that the plaintiff had good reason to believe, and did believe, that the defendant was about fraudulently to remove his property, convey or dispose of the same so as to hinder and delay, &c., it is not sufficient to authorize the writ oí attachment; and where a writ has issued, founded upon such an affidavit, it should be quashed on motion. The word fraudulently, qualifies the word rerr\ove only; and the words hinder and delay, refer to tho words conveyor dispose; and an affidavit thus worded, does not present any sufficient cause for issuing a writ of attachment.
    The affidavit should be so direct, positive and certain as to be free from question or doubt.
    _ Where the officer certifies that he is satisfied that the facts and allegations set forth in the affidavit are true, and that the affiant is entitled to a writ of attachment, it is a sufficient indorsement of satisfaction.
    A writ of attachment which commands the sheriff, that the property “so attached in your hands to secure, or so to provide, that the same may he liable to further proceedings thereupon at a term of that District Court, to be holden,” &c., “so as to compel the defendant to appear and answer the complaint of the plaintiff, when and where you shall make known to the said court how you have executed this writ;” is made returnable within the meaning and intention of tho law.
    Merrill sued out of the Dane District Court, a writ of attach-mcnt against Low, dated 30th July, 1841, founded upon the following affidavit:
    “Henry Merrill being duly sworn doth depose and say, that Gideon Low, of Fort Winnebago, is justly indebted to this deponent, in about the sum of sixteen hundred dollars lawful money, over and above all legal, off-sets, and that he has good reason to believe, and does believe, that said Low is about fraudulently to remove his property, convoy or dispose of the same, so as to hinder and delay this deponent, and further saith not.”
    Upon which affidavit was the following indorsement of satisfaction by the officer before whom it was made:
    “I hereby certify, that I am fully satisfied that the facts and allegations set forth in the above affidavit, are true, and that the said affiant is justly entitled to hid writ of attachment;” and signed by the Supreme Court Commissioner.
    The writ of attachment which issued, after the attaching part, wont cn to command the sheriff, that the property “so attached in your hands to secure, or so to provide, that the same may be liable to further proceedings thereupon at a term of that District Court to be holden at Madison on the second Monday after the fourth Monday in October next, so as to compel the said Gideon Low to appear and answer the complaint of the said Henry Merrill, when and where you shall make known to the said court how you have executed this writ.”
    Notice of the attachment was published, and at the return term, the'defendant moved the court to quash the writ upon the following grounds:
    “1. Because the affidavit of the said plaintiff filed with the clerk of said court in the above entitled cause, is insufficient, for tbo reason, that the said affiant does not swear to the existence of any particular fact which authorizes the issuing of a writ of attachment.

      2. Because the said affidavit is uncertain.
    3. Because the certificate of Wrn. N. Seymour, as supreme court commissioner, upon the said affidavit, is insufficient, for the reason, that it does not appear that the said Wm. N. Seymour was satisfied of the existence of any particular fact which authorizes the issue of a writ of attachment.
    4. Because the said writ of attachment is not made returnable according to law.”

      Upon this motion, the District Court quashed the writ and dismissed the suit.
    To reverse this judgment, Merrill has prosecuted this writ of error; and the question presented for the determination of this Court, is: did the District Court err in sustaining the motion of the defendant?
    Botkin for pl’ff in error:
    There is but one error relied upon in this case, and that is, that the District Court erred in quashing the .writ upon the alledged insufficiency of the affidavit. The affidavit is not in the disjunctive, as was insisted in the court below, according to the decision of this court in the case of Morrison vs. Fake. One of the causes for issuing the writ, is slated in the vety words of the law, and the portion of the affidavit that is objected to, may be rejected as surplusage.
    Ciu4.uK for def’t in error:
    The principal argument to reverse the judgment of the District Court is, that the affidavit follows the very language of the statute. This is not true in point of fact; but if it was, it does not follow of course that it is legally certain. If an affidavit should embrace all the grounds for the writ, couched in the very words of the statute, no one would contend that it would be sufficient. If any one of the facts exists, it is enough, and the affidavit must state distinctly what the fact is. Nothing should be left in doubt as to its . true meaning. . .
    Wiiiton, in continuation:
    The affidavit does not state any distinct ground for the writ. It is confused and uncertain. It charges that the defendant is about fraudulently to remove his property, but it does not state for what purpose or to what effect: Also, that he is about to convey or dispose of the same so as to hinder and delay the plaintiff, but the fraudulent intent is not coupled with this allegation. The act about to bo done, and the fraudulent intention of the defendant in doing it, should be so distinctly stated and so coupled together,' that there could be no doubt in ascertaining the specific fact charged.
    The Supreme Court Commissioner does not certify that he is satisfied that any particular fact exists, but only that the affidavit is true. The affidavit only states the belief of the party, and the certificate amounts to nothing more than that the officer is satisfied that the plaintiff believes as he has stated in his affidavit.— The officer ought to be satisfied of facts, and not of mere belief, and his certificate that he is satisfied of the truth, of the affidavit, in general terms, is not sufficient.
    The statute requires all writs to be made returnable on the first day of the next succeeding term, unless the court shall otherwise direct. (Stat. Wis. 200.) This writ is not made returnable at all. The Sheriff is not commanded to return the writ. At most, it is returnable to the term generally, and not on the first day of the term, as the statute requires. For this cause alone it is bad and should be quashed.
   Opinion of the Court, by

Chief Justice Dunn:

This suit was originally commenced in the District Court of Dane County, by attachment issued on an affidavit of facts as cause for issuing the writ, with an indorsement of satisfaction thereon by a proper officer. In the court below, the defendant moved to quash the writ and dismiss the proceedings for these reasons, viz:

“ 1. Because the affidavit of said plaintiff, filed with the clerk of said court in this cause, is insufficient in this, that it does not state the existence of any particular fact which authorizes the is-, suing of a writ of attachment.
2. Because the affidavit is uncertain.
3. Because the certificate of William N. Seymour, as Supreme Court Commissioner, upon the affidavit, is insufficient, for the reason that it does not appear that the said Seymour was satisfied of the existence of any particular fact which authorizes the issuing of a writ of attachment.
4. Because the said writ of attachment is not made returnable according to law:”

Which motion was sustained by the court below, and the writ was quashed and the proceedings dismissed. To reverse this decision a writ of error is prosecuted in this court.

The inquiry arises here, was there error in the decision of the court below, in sustaining (he motion to quash for the reasons assigned? This brings us to the consideration of the reasons in the order in which they are presented. The first and second reasons urge the insufficiency and uncertainty of the affidavit. In Morrison against Fake, this court classed the cases in which attachment is authorized to issue, by the act concerning the writ of at-iachment, page 165, Revised Statutes, into six classes. The 6th is, “that such debtor is about fraudulently to remove, convey, or dispose of his property or effects, so as to hinder and delay his creditor:” And the court said: “ We find it to be practiced in the Territory, to set out this cause in the disjunctive, as set out here, and we are not disposed to change it, We are not disposed to confine the party to the use of one of the words, remove, convey, or dispose, but he may use one or all at his pleasure; also, the words properly, or effects. In a case of fraud it may de difficult to obtain satisfactory information whether a man is removing or disposing of his property. Clearly, the party cannot set out two causes of attachment in the disjunctive. Both these points seem to be settled in 3 Watts’ Reports, 144.”

The proceeeding by attachment being a departure from the common law, and a violent remedy, the court in that case went as far in favor of the proceeding by attachment, as could be reconciled to any adjudications on the subject in former cases, and they cannot go beyond the rule there laid down. If the affidavit in this case conformed to that rule, it would be sustained by the court; but upon examination, insufficiency and uncertainty are imposing on the face of the affidavit, in respect to the rule referred to. The affidavit is in these words: “ Has good reason to believe and does believe, that the said Low is about fraudulently to remove his property, convey or dispose of the same, so as to hinder or delay this deponent.” It is uncertain and therefore insufficient in this, that according to the acknowledged rules of grammatical construction, the adverb, fraudulently, qualifies the word remove only, and not the words convey or dispose; and the words “ so as to hinder or delay this deponent,” refer to the words “ convey or dispose,” as their antecedent, and not to the words “fraudulently remove;" thus presenting no sufficient and certain cause for issuing the attachment. For it will not be insisted on that the words “ about fraudulently to remove his property,” without the qualifying words, so as to hinder or delay this deponent,” would be a sufficient ground upon which to award the writ of attachment. Nor that the words convey or dispose of his property so as to hinder or delay this deponent,” without the qualifying word, “ fraudulently,” prefixed, would be a sufficient ground for the same purpose. The affidavit in this respect should be so direct, positive, and certain, that upon a public prosecution on the same charge, supported by proof, the defendant could be convicted. There may be, and doubtless are different opinions, about tho construction of the meaning of that part of the affidavit quoted; but this is an argument against its certainty and sufficiency. It should be entirely free from any question or doubt,

Botkin, for pl’lff in error.

Whiton and Clakic, for def’t in error.

We are decidedly of opinion that the District Court did not err in entertaining the motion, quashing the writ and dismissing the proceedings on these grounds.

The third and fourth reasons in support of the motion to quash, object to the sufficiency of the certificate of William N. Seymour, Supreme Court Commissioner, indorsing satisfaction on the affidavit; and that the writ of attachment is not made returnable according to law.

The court is not called on to consider the merits of these objections. As the motion must have been decided by the District Court mainly on the first and second grounds assumed in support of the motion. We have, however, examined the objections, and are of opinion, that the indorsement of satisfaction of itself, is sufficient. The satisfaction is of fact, and not of the legal sufficiency of the affidavit. We are also of opinion that the writ, although not in the usual form, is made returnable within the meaning and intention of the law.

Judgment affirmed with costs.


source: Caselaw Access Project

author: Judge Miller:

license: Public Domain

text:
    WILLIAM S. BROWN, pl'ff in error, vs. GEORGE W. BICKNELL, def't in error,

      ■ Error to Rock county.

    A plea of tho statute of limitations, is a plea to the remedy; it is a mere municipal regulation, formed upon local policy; and a foreign statute cannot be pleaded in our courts.
    Whore the debtor is out of the Territory at the limé when the cause of action accrues, the suit may, according to the 24th section of the statute of limitations, bo commenced here within the time limited, at any time after he comes into the Territory.
    Where the maker of a promissory note resided out of the Territory at the time when it became due, and afterwards removed into the Territory, although the note has been due more than six years, it is not barred by the statute of limitations unless six years have elapsed since the maker came into the Territory before the commencement of the action; but to prevent the statute from running in such case, the debtor must have been out of the Territory when the cause of action accrued,
    Brown brought an action of assumpsit against Bicknell in the Rock District Court, upon the following promissory notes and drafts drawn in Providence, Rhode Island, viz:
    One note dated 15tli February, 1838, due at six months;
    One do. dated 21st March, 1833, due atfour months;
    One do. dated 18th May, 1833, due atfour months;
    One do. dated 21st May, 1833, due at sixty days;
    One do. dated 22d June, 1833, due at sixty days;
    A draft accepted by defendant, dated 22d April, 1833, payable sixty days after date;
    A draft drawn by defendant, dated 7th June, 1833, payable on presentation.
    The action was commenced in 1841. The defendant pleaded the general issue, and gave notice that the action was barred by the statute of limitations. From the bill of exceptions it appears that the notes and drafts sued on, were executed at Providence, in the State of Rhode island, and that when they became due, the defendant was out of the Territory. It also appears that the defendant came into the Territory for the first time in July, 1837, about four years before the commencement of the suit. On the trial, the court below instructed the jury, at the request of the defendant, that the 24lh section of the act in relation to the time of commencing actions, was not applicable to the case, and to disregard it. Under the instructions of the court, the jury returned a verdict in favor of the defendant. A motion was made for a new trial and overruled, and judgment rendered on tho verdict.— Brown sued out a writ of error to reverse this judgment, and the only error assigned is in the decision of the court in applying the statute of limitations to the case.
    Wells for pl’ffin error:
    The demands upon which this suit was brought, had been due more than six years at the commencement of the action, but when the cause of action accrued, the defendant was out of the Territory. He came into the Territory for the first time in July, 1837, about four years before the suit was commenced. In such case, tho action is not barred until six years after the debtor comes into the Territory. Stat. Wis. 261,262, sec. 24. Our statute is similar to those of New York and Massachusetts upon the same subject. Tho decisions of the courts of those States show conclusively, that under the facts of this case the statute of limitations is no bar to tho action. 2 Rev. Stat, N. Y., 225. Rev. Stat. Mass. 700, sec. 9. Buggies vs. Keeler, 3 John. Rep. 263. Byrne vs. Crowninsheld, 1 Pick. 263. Dwight vs. Ciarle, 7 Mass. Rep. 515. White vs. Bailey, 3 do. 217. See also Story’s Conflict of Laws, 482 to 488. Bell and others vs. Morrison, 1 Peters, 351.
    Wiiiton for def’t in error:
    The Court is called upon to give a sound construction to our statute of limitations. But for the exception in the 24th section of the act, tho action would be clearly barred, and there would be no controversy in the case. The principle sought to be established by the plaintiff will go thus far: a debt may be contracted abroad and become forever barred by the limitation of a foreign State, but if the debtor'comes into the Territory at any remote period, the demand may be revived against him and recovered.— We contend that the 24th section was intended to apply to con* tracts made in the Territory, or the contracts made abroad in reference to the laws of the Territory to be here executed; and that this construction should be adopted by the court. The courts in modern times, view statutes of limitations much more liberally than formerly, and they often regret the constructions given by the old decisions, See Bell and others vs. Morrison, 1 Peters, 360. Buggies vs. Keeler, 3 John. Rep. 265.
    Our statute is not precisely the samo as those of Now York and Massachusetts, and this Court is not bound by the decisions in those states. The statute of limitation is a local municipal regn" lation, founded upon the polity of the state, and the decisions upon it violate no principle of justice, however they may be given.
    Wells, in reply.
    The Court is asked to give a construction to the statute contrary to its palpable import and meaning. The Court has no such extensivo power, but is bound to give it a sound construction, and carry into effect its obvious meaning and intent. In doing this; the Court will be aided by the decisions in other States upon the same question under similar statutes.
   Opinion of the Court by

Judge Miller:

The plaintiff in error brought suit against the defendant in error on a promissory note, in the District Court for the county of Rock. The note was dated at Providence, Rhode Island, on the 15th day of February, 1833, and became due in six months thereafter; and it was made to appear by the pleadings and sustained by the evidence, that the defendant came into the Territory about four years before the time when the suit was brought. It was claimed on the part of the plaintiff, that under the twenty-fourth section of the act concerning the time of commencing actions,, which provides, that if at the time when any cause of action mentioned in the act shall accrue against any person, he shall be out of the Territory, the action may be commenced within the time therein limited therefor, after such person shall come into the Territory, he was not barred of his recovery. It is very clear, that if it were not for this provision in the statute, this claim would have been barred in six years.

The plea of the statute of limitations, is a plea to the remedy; 13 Peters, 329; 6 Wendell, 475; 4 Cowen, 528, 530; 1 Gallis, 371; 2 Mason, 351; 14 Peters, 141. Astatuteoflimitationisa mere municipal regulation, founded upon local policy; and a foreign statute cannot be pleaded in our courts: 3 John. 263; 13 Peters, 312. The disability which entitles a party to the benefit of the above provision, must exist when the right of action accrues; that is, when the right of action accrues, the debtor must be out of the Territory: 5 Cowen, 74; 14 John. 338; 9 Cowen, 296; 5 Cowen, 231; 4 Cowen, 508; 2 Cowen, 626; 17 John. 511. Under similar provisions in the statutes of limitation in force in the states of New York and Massachusetts, the courts of those states have decided, that in cases of debts accrued against persons out of those states, who afterwards came into those states, the statute of limitations cannot be pleaded in bar until the said debtors are in the said states for the term of six years: Dwight vs. Clark, 7 Mass. Rep. 515; White vs. Bailey, 3 Mass. Rep. 271; Byrne vs. Crowninshield, 18 Mass. Rep. 263; 3 John. Rep. 263; Story’s Conflict of Laws, 482 to 488; 1 Pick. Rep. 263; also in the case of Bulger vs. Bache, 11 Pick. Rep. 36, where a debt was contracted in a foreign country, between subjects thereof, who remained there until the debt became barred by the statute of limitations of such country, it was decided, that the statute of limitations of Massachusetts could not be pleaded in bar to an action upon the debt, brought within six years after the parties came into that state.

Weils, for pl’if in error.

Whiton, for def’t in error.

The judgment of the District Court of Rock county, which was in favor of the defendant, must be reversed.


author: Judge limit;

text:
    PHILIP J. TOLLE, pl’tff in error, vs. PENDLETON P. STONE, def't in error.

      ) > Error to Grant county.

    UroN an appeal from the judgment of a Justice of the Peace, the Dig. trict Court cannot inquire into the qualifications of the justice who tried the cause, and decide whether he is legally in office or not. The qualifications of a public officer, or his right to the office, cannot be examined and decided collaterally.
    Tolle commenced an action against Stone before a justice of the peace in Grant county. The cause was removed, under the statute, to Cyrus K. Lord, another justice, who proceeded to try the case, and who rendered a judgment in favor of Tolle for $42 50. From this judgment Stone appealed to the Grant District Court. In the District Court, Stone, by his counsel, moved the court to dismiss the suit, because — 1. Cyrus K. Lord, the justice who tried the cause, never executed a bond to the treasurer of the county, as required by law; and 2d. because, at and before the trial, there was no bond or oath of office of the said justice on record in the office of the Clerk of the District Court of Grant county, as required by law.
    It appeared that Lord was duly commissioned a justice of the peace on the 12lh day of January, 1840; he took and subscribed an oath of office on the 10th of February, 1810, and executed a bond according to the form of the statute, which was signed by two sureties, but not by the principal, which was approved by the treasurer of the county; which bond and oath of office were deposited with the clerk of the District Court, and marked “ filed 12 February, 1840,” but were never recorded in any book.
    Upon this state of facts it was insisted that Lord was not a justice of the peace, and could not lawfully entertain jurisdiction in any cause; and the court decided, that not having complied with the requisitions of the statute as to his qualifications, he was not a legal justice of the peace, and dismissed the suit upon the motion submitted; to reverse which judgment Tolle has prosecuted this writ of error.
    The question presented for the consideration of this court is; did the District Court err in dismissing the suit upon the motion of the defendant.
    WinAM KNowmw, for pl’tffin error:
    The decision of the District Court was erroneous for these reasons:
    1. It was too late to take objections after issue joined and a continuance had been had before the justice, Stat. Wis. 333, sec. 7; 1 Brown’s Penn. Rep. 95.
    2. The bond, though not signed by the principal, was sufficient to bind the sureties, and was therefore good. Union Barilc of Maryland vs. Bidgley, 1 Har. & Gill, 324; Andrews vs. Beall et al. 9 Co wen, 693.
    3. Though the bond and oath of office were not recorded, they were filed with the clerk, whose duty it was to record them, and that was sufficient. Young et ads. vs. The Commonwealth, 6 Bin-ney,88; Althorp vs. North et als. 14 Mass. Rep. 167.
    4. The authority of an officer cannot be inquired into collaterally; the officer himself must be made a party to the proceeding. 7 Amer. Com. Law, 477,478; The People vs. Adams, 9 Wendell, 464 ; 3 Tomlin’s Law Dictionary, 280 to 287.
    5. General reputation of officers is sufficient in all cases except in quo warranto. Potter vs. Luther, 3 John. Rep. 431; 2 Star-tie, 218, 732.
    6. Lord, although he never gave bond according to law, if he accepted the office and took the necessary oath, he was an officer, de jure, and he was only liable to a penalty. Gilbreath vs. Brown, et al. 15 Mass. Rep. 107; 7 Amer. Com. Law, 144;, Marbury vs. Madison, 1 and 2 Cranch, 49.
    7. If Lord was not an officer dejure, he was an officer defacto,. and his acts are valid so far as the public and third persons are concerned. 7 Amer. Com. Law, 142; McKinstry vs. Tanner, 9 John. Rep. 135; The People vs. Collins, 7 John.Rep. 549; 5 ■ Wendell, 231; 1 Hill, 674; Me Kim 3? Armstrong vs. Somers, 1 Penrose & Watts’ Penn. Rep. 297; The United States vs. hash,. decided in this court at the July term, 1840. '
    Bevans, for def’t in error:
    The general principle, that the qualifications of public officers cannot be inquired into collaterally, is admitted. But this is not like any of the cases that have been cited before the court. Most of those cases are where the acts of ministerial officers have been called in question; many of them were suits in which the rights of parties in some way depended upon the official acts of an officer, and in such case the law will not allow the qualifications of the officer to be questioned. If a sheriff, constable, or coroner sells property, and a contest arises in consequence, as in the cases cited from 15 Mass. Rep. and 2 Aiken’s Rep.; or if the officer is himself sued for the official acts of himself or deputy, as in the cases cited from 3 John. Rep., 3 Ohio Rep., 3 Amer. Com. Law, 10 Wendall, and other references, proof of his qualifications cannot be required; or in other words, his official character can be established by proof of his acting in the capacity claimed. But this is a different case. Here a man attemptsLto exercise judicial-authority in a subordinate station, and his acts are appealed from to the court that has the immediate supervising jurisdiction. In the superior court it is insisted that the inferior officer had no authority to try the case; that the proceedings are coram non judi-ce, and the District Court is asked to send the case out because it did not come there from any lawful authority. Has it no power to inquire into the authority of those who pretend to fill judicial stations? If it has not, a man without even a commission, may usurp the office of justice of the peace, and the parties who may be brought before him have no means of getting rid of his authority. His liability to the public cannot in any way affect the private rights upon which he has adjudicated, and the tedious proceeding of quo warranto is the only remedy.
    The statute makes the taking and subscribing the oath of office, executing the bond, and filing and recording both, conditions precedent, which must be complied with before any one enters upon the discharge of the duties of the office of justice of the peace. Until these pre-requisites are complied with, he is not an officer cither de jure or de facto.

   Opinion of the Court by

Judge limit;

Chief Justice Dümn dissenting:

Upon examination of this case it appears that the plaintiff commenced, on the 2d day of September, 1841,. a suit before a justice of the peace (Bennot Atwood) in and for the county of Grant, against the defendant, by process returnable on the ninth of said month, when the parties appeared, and under the provisions of the statute, removed it before another justice of the peace, Cyrus K. Lord. The suit was to recover damages for injury done by defendant to a horse of plaintiff’s,and for which a jury found a verdict in favor of plaintiff for forty-two dollars and fifty cents, on which the justice gave judgment, and from which the defendant appealed to the District Court of Grant county, in which, when the cause came on for further trial, the K defendant by his attor-torney, moved the court to dismiss this cause, because,

1st. The said C. K. Lord, before whom the cause was tried, has never executed a bond to the Treasurer of Grant county as required by the law to be executed by all justices of the peace, before entering upon the duties of his office.

2d. Because, at and before the trial of the said cause before the said C. K. Lord, the was no bond or oath of office on record in the office of the clerk of the District Court of Grant county, as required by law;” which motion was sustained, and the cause dismissed at plaintiff’s costs, and to which decision exception was taken by plaintiff, and the cause brought here to correct the error as complained of in that decision and judgment of the District Court.

The only question presenting itself here for the consideration of the court is; did the District Court err in permitting the qualifications of C. K. Lord (the justice before whom the cause was tried) to be inquired into and acted upon collaterally? It is contended that the court did err, and, in support of the position, re. ference is made to a decision of this court at a former session, Lask vs. U. S. July Term, 1840; 9 Wendell, 464; vol. 7 American Com. Law, pages 477, to 478; and numerous other authorities. In 1 Penn. Reports, 297, in the case of Me Kim and Armstrong against Somers, in error, the question arose on an objection to a deposition alledged to have been taken before a justice of the peace whose commission had been vacated by force of law. The decision of the court was against the objection, and inasmuch as the judge who delivered the opinion, has gone fully into the consideration of the subject, we could not, perhaps, do better than to give his views as he has given them himself, believing, as a majority of this court does, that it is a case in point. Judge Rogers says:

“ The plaintiff also objected to a deposition in evidence, on the ground that Joel C. Bailey, the person before whom the deposition was taken, was not a justice of the peace. Whether the facts alledged in the bill of exceptions would vacate the commission of the justice, we are not called upon to determine. Whenever an information is filed, it will be time enough to determine the question. At present we think it even improper to intimate an opinion. And this is not accorded to Mr. Bailey as a favor, but is nothing more than common even-handed justice, that he should have an opportunity of being heard, and be permitted, if occasion should require it, either to traverse the facts, or contradict the conclusions of the law attempted to be drawn from them. It would be the height of injustice if we were now to determine, or even suffer his right to bold his commission to be called in question, in a cause in which he is no party and cannot be heard. The counsel' for the defendant objected to the court going into the question whether he was a justice de jure at all, and in this wo conceive they were in the strict line of their duty. They contended, and with a force that has not been weakened by the reply, that it was sufficient for their purpose that he held a commission from competent authority, and that in taking the deposition, which is an official act, he was acting in the district for which he was appointed; that this constituted him a justice defacto, with at least colorable authority; and that as long as the commission remained, without being superseded by the Governor, or vacated by the Supreme Court,, the validity of his acts could not be- questioned. One would have supposed that these reasonable objections would have been entitled to respect; for, setting aside the extreme injustice of impeaching, or even impairing the right to an office, without giving an opportunity of hearing the party principally affected by the decision, the inconvenience, and I may add, in some cases, indelicacy of the inquiry, would be intolerable. If the plaintiff had been heard in this preliminary matter, the opposite party would have been permitted to controvert the facts by the introduction of testimony on their part, and this would open a scene which I should be sorry to see exhibited in a court of justice, An examination would ensue before the court, which in some cases would last a week, whether a deposition should be received, in a case of the most trifling nature and amount, as the court would be both judge and jury. The inconvenience of this novel doctrine would cause them to pause before they acceded to it. If I understand the counsel, they admitted the law, in its full force, as respects ministerial officers, but denied it as respects judicial officers. I should have been pleased to have seen some authority in which the distinction is taken; the reason for such a distinction is not very apparent. If this be law as regards ministerial officers,' which may be shown by a host of authorities, I say, a fortiori, it should be so held in the case of judicial officers. The law is formed on policy and convenience, reasons which' apply with ten fold force to officers of the latter description.’’ And afterwards, the same judge, in speaking of the case of the Commonwealth vs. Richard Bache, says: Richard Bache was indicted for an assault and battery on Alderman Binns. The indictment contained two counts; one for an assault and battery; the other for an'assault and battery upon Alderman Binns, while in the execution of the duties of his office. It was the opinion cf the whole court, that Binns’ right to the office he held, could not be questioned on the indictment, and we accordingly suspended giving judgment, and put Bache to an information in the nature of a writ of quo war-ranto.”

A majority of this court considers this the true doctrine upon this subject, and as recognized by the authorities already referred to, as well as 11 Viner’s Abr. 114; 7 John. 549; 5 Wendell, 231; 9 John. 135; 15 Mass. 170.

Knowlton, for pl’tff in error.

Bevams, for def’t in error.

We are therefore compelled to reverse the decision of the District Court, with costs.


text:
    WALLACE ROWEN, pl'tiff in error, vs. JONATHAN TAYLOR, def't in error.

    ) > Error to Dane county.

    Want of notice in pvocceeings by attachment, is matter in abatement, and not in arrest of judgment.
    Defects apparent on the record may be noticed by the court, although not pointed outin the exceptions; , and a judgment may be arrested for an objection on the face of the record, though it was not assigned at the time of making the motion.
    Where a plaintiff in attachment files different declarations in different forms of action, there must be a separate verdict and judgment on each declaration; a,general verdict without any special reference to the different declarations, should be sot aside and the judgment arrested.
    Rowen sued out a writ of attachment in the Dane District Court, against Taylor, for $100, or upwards. The writ was issued on the 13(h May, 1841, and returnable to the November term, 1841. At the return term the first default was taken; and at the May term, 1842, the plaintiff filed two declarations; one in debt for $1336 67, and one in case, claiming $2000 damages, for a breach of simple contract; and at that term the second default was taken and a writ of inquiry awarded. Pending the execution of the writ of inquiry at the same term, and after the jury had boon sworn, the defendant made his first appearance in the cause, and moved the court to dismiss the proceedings, because no notice had been published as required by the statute, but immediately withdrew his motion, and the inquest proceeded. The jury returned a verdict for $989 15 debt, and $80 50 damages. Taylor then moved the court to set aside the verdict and arrest the judgment, because,

      “ 1. There was no publication of the pendency of the attachment.
    2. The proceedings are irregular, defective and uncertain.

      3. The verdict of the jury is contrary to evidence and the instructions of the court.”
    Upon this motion the District Court arrested the judgment and dismissed the proceedings; and Rowen has sued out a writ of error from this court to reverse that judgment, which he alledges was erroneously given.
    WriiTON and Strong, for pl’tff in error:
    The judgment of the court below ought not to have been arrested and the suit dismissed, for the reasons stated in the motion. It was the duty of the court at the second term, to default the defendant, and the right of the plaintiff to file as many declarations as he had causes of action, Rev’d. Stat. Wis. 166, 167, sec. 7. The matters aliedged in the defendant’s motion are matters in abatement, or at most, grounds for a new trial only, and are not good in arrest of judgment.
    Further, the defect in the proceedings, if any exists, is cured by the statute of amendments, especially after verdict, as in this case, and the judgment cannot be arrested on the grounds alled-ged. Rev’d. Stat. Wis. 257, 258.
    Field and Botkin, for def’t in error:
    The statute of amendments does not reach this case. A verdict which cures defects is a verdict upon an issue of fact in the cause, and not the verdict of a jury of inquest after a judgment by default.
    Attachment is a rigorous remedy and must be strictly pursued, and every provision of the law is to be rigidly construed against the plaintiff. Publication of notice comes in the place of a summons, and only amounts to constructive notice. It is intended to inform, not only the defendant but all his other creditors, of the pendency of the proceedings, and the statute is peremptory, that where notice has not been published the writ shall be quashed; and the court is bound to notice the matter at any stage of the case before appearance and full defence made.
    Again; the verdict is so uncertain that it cannot he applied to the declarations, and no judgment could be rendered upon it.
   Opinion of the Court, by

Judge Miller:

This suit was commenced by attachment in the District Court of Dane county, by the plaintiff against the defendant, on an affidavit alledging fraud. At the second term, in pursuance of the statute, the plaintiff riled two declarations against the defendant, and took a second default. A jury was then called and sworn tq assess the damages, and afterwards the defendant’s counsel filed a motion in arrest of judgment on the following grounds:

1. That the attachment affidavit and levy are defective.

2. There was no publication of the pendency of the attachment. ■

3. The proceedings are irregular, defective, and uncertain.

Upon this motion the District Court ordered, that the judgment be arrested, and that this cause be dismissed at the costs of the plaintiff! To reverse this judgment, the plaintiff sued out this writ of error.

The attachment is informal, but not defective. The affidavit is correct, according to the statute. The return does not state what property or effects of defendant were found in the possession of the garnishee, but he appeared in pursuance of notice and disclosed what were in his hands, which were choses in action. This proceeding, in this particular, should be considered correct, particularly at the time the objection was made.

As it regards the second objection; it appears, that after the jury was sworn, and part of the testimony received, the defendant by his attorney moved the court to abate the proceedings for want pf the publication of the pendency of the attachment, and immediately withdrew it, and let the investigation proceed. It also appears, that although this was a judgment by default, yet the defendant, by his attorney, appeared when the jury was sworn. If the counsel had persisted in his motion to abate, there would have been no difficulty in the case. It was at the second term, at the first appearance of the defendant, and it would have been the duty of the court to abate the proceedings, for the law is imperative. But he withdrew his motion, and lot the investigation proceed, until a finding to a large amount was returned against him. The practice of the law is a regular system, and in it there is a time for every thing. But even without this objection to the proceedings of the defendant’s counsel, the motion filed.after the verdict, does not meet his case. The motion is in arrest of judgment, for want of publication. The want of notice is matter in abatement, not in arrest. 4 Yeats, 375.

On the third exception the record was examined thoroughly, and although the exception does not point out the irregularities or defects, yet the court, on it, may notice defects apparent on the record. A Judgment may be arrested for an objection on the face of the record, though it was not assigned at the time of filing the motion or entering the appeal; Grasser vs. Eckhart, 1 Binney, 575. In this case, the plaintiff filed two declarations; one in debt, on a judgment recovered and other matters; the other in case, for damages for breach of a contract. The jury was sworn generally, who reported a verdict in debt and damages, without any special reference to these declarations. Under the seventh section of the attachment law, the plaintiff, and every other creditor o'f the defendant, may file their declarations. This allows the plaintiff to file his declaration on the claim on which the attachment was issued, and also additional declarations, as other creditors, on other and different causes of action; but there must be a separate judgment on each declaration filed. These two declarations are so dissimilar and inconsistent, that they cannot support a general verdict. The same reason for arresting the judgment in this case, exists, that would have existed if they were embraced in separate counts of the same declaration. For this reason the District Court was correct in arresting the judgment.

Wiiiton and Moses M. Steong, for pl’tff in error.

Field & Botkin, for dePt in error.

Judgment affirmed, with costs.


author: Chief Justice Duwn

text:
    A DARK COLORED NEWLY DECKED SCOW BOAT, pl'tiff in error. vs. JOHN LYNN, def't in error.

    ) Emr t, Milmukee comi¡/. ( )

    A scow-boat, belonging to a particular port, and used as a lighter and wood boa t in the river and harbor, is not liable to bo proceeded against by attachment under the not to provide for the collection of demands against boats and vessels.
    That act was intended to apply to steam-boats and sail, or other vessels of tho larger'class, engaged in carrying and transporting persons and property from port to port, and does not embrace scow-boats, ferry-boats, and other smaller craft, confined in their use to particular ports or places.
    Lynn, the defendant in error, took out an attachment from a justice of the peace in Milwaukee county, against the Scow-Boat, under the act to provide for the collection of demands against boats and vessels, for tho purpose of collecting a demand for work and labor done on tho boat in building it. Tho boat was owned by Dousman & Brown, of Milwaukee. On tho trial, the justice gave judgment for the plaintiff for $27 87, from which Dousman & Brown appealed to tho Milwaukee District Court. On the trial of the appeal, it appeared in the evidence for the plaintiff, that tho plaintiff had done work and labor on the boat in building it; that the boat was designed and used as a lighter in the river and harbor of Milwaukee, and in carrying out wood to the steam-boats in Milwaukee Bay, and was not used in navigating from port to port. Tho counsol for Dousman & Brown moved the court to instruct the jury as in case of a nonsuit, on the ground that the scow-boat was not a boat or vessel within the moaning of the act, ana consequently, was not liable to the proceeding; which instruction the court refused to give, and instructed the jury that the scow-boat was a boat or vessel within the meaning of the act, and that the plaintiff should recover if the jury should find that he had performed the work and labor charged in the declaration.
    Tho jury returned a verdict in favor of the plaintiff, upon which tho court rendered judgment; to reverse which judgment the owners of the scow-boat have prosecuted this writ of error; and the only question in the case arises upon the instructions refused, and those given by the court to the jury.

      The case was argued, ex parte, by Welis for the plaintiff in ■error.
    The only question for the court to determine is; whether the scow-boat is a boat or vessel within the meaning of the law or nor. The words, boat or vessel, are to be governed by the words, navigate and.navigation, which mean, to sail as in ships; passing from port to port for the purpose of carrying persons or property. A scow-boat or ferry-boat is not engaged in navigation, in the proper sense of the word, and is not within the meaning of the statute.
    Where the proceeding is by attachment under the act, it must be against the boat by name; this shows that the legislature intended to apply it to a larger and different class of vessels, which in all the civilized world have distinctive proper names. This scow-boat has no name, it is not sued by name, but by description. '‘This is a material matter for consideration. A craft that was too insignificant to have a name was too unimportant to engage the attention of the legislature.
    ■ The statute of the Territory is similar to the statute of New York upon the same subject; the only material difference is, that in that State the word ships is used instead of the word boats, as in the act of our legislature. 1 Rev’d Stat. N. Y. 130. The difference in the words can make no difference in construing the meaning of the law. In that State, the courts have decided in numerous cases, that boats of a much more important class than this scow-boat, were not liable to this mode ofproceeding, as not being within the meaning of the law. Walker and others vs. Sloop Rochester, 1 Wendell, 557; Johnson vs. S. B. Sandusky, 5 Wendell, 510; Farmer’s Delight vs. Lawrence & Sneden, 5 Wendell, 584; Burkbeck vs. Hoboken Ferry Boat, 17 John Rep. 54; 5 Cowen, 564.
   Chief Justice Duwn

delivered the following opinion of the court:

The proceedings in this case were originally instituted before a justice of the peace of Milwaukee county, by John Lynn, defendant in error, against the Scow-Boat, plaintiff in error, under the statute of this Territory providing for the collection of demands against boats or vessels used in navigating our waters. The proceeding was commenced in the usual form, by filing a complaint, which was for work and labor performed upon said scow-boat, supposed to be the property of Dousman & Brown. On the return of the writ, Brown appeared, as one of the owners of the scow, and defended against the claim or demand of said Lynn, defendant in error and plaintiff below, and upon trial judgment was rendered for Lynn against the scow for the sum of ‡42 50 damages, from which decision the said owner of the scow took an appeal to the District Court of Milwaukee.

On the trial of tho cause in the District Court, it appeared in evidence, that the said scow was used as a lighter in tho Milwaukee river and bay, in transporting from and to the boats and other vessels in the bay, and in carrying out to the boats and vessels, wood, &c. ,• and that it was not a sail-vessel, and was not used in navigating or sailing from port to port, but merely as a lighter.

The cause was submitted to the jury, and the counsel for the defendant moved the court to instruct the jury, that the scow was not a boat or vessel within the meaning of tho statute; that the same was not liable under the “ act to provide for the collection of demands against boats and vessels navigating the waters of this Territory;” which instruction was refused, and the court charged the jury expressly, that the scow in question was a boat or vessel within the meaning of the said act: to which refusal and charge the defendant excepted. The case is thus brought into this court upon error to tho decision of the 'District Court in refusing tho charge asked, and giving the charge which was given to the jury.

The only question to he decided by this court is, whether the scow in question is or not a boat or vessel within the meaning of the act of the legislature to which reference has been made. In considering this question, we must examine that part of the act which is applicable, and upon which the proceeding in this case is based. In Revised Statutes, page 168, sec. 1, it is provided: That every boat or vessel used in navigating the waters of this Territory, shall be liable,” &e. Where a law is couched in words in definite and limited sense, entirely free from ambiguity, and such as cannot be expanded or dilated in their signification, then there is no room for construction or inference from any thing out of the plain import and meaning of the words used. But it does-frequently occur that words are used in our statute books, which have so very comprehensive a meaning, and may be applied in so many ways, that we are compelled to resort to various aids to enable us to apply tho meaning intended by the legislature. “ Navigating,” in the act before us, in its most extended meaning, might embrace all and every description of boat, vessel, or water craft, employed in floating persons or property upon, or over our waters. But wo must look to the various provisions of this act, and from the whole, taken together, giving to each provision an effective and useful construction, in reference to the evil intended to be prevented, and the remedy to be secured, arrive at such rational conclusion as is warranted by the soundest principles of construction. Thereby we will elicit the intent and meaning of the legislature, and this should always govern in expounding laws which are at all doubtful or ambiguous.

What are the claims which may be proceeded for under the provisions of this act? “ 1st. For all debts contracted by tho master, owner, agent, or consignee, on account of supplies furnished for the use of such boat or vessel; on account of work done or services rendered on board of such vessel or boat; or on account of labor done or materials furnished by mechanics, tradesmen, or others, in and for building, repairing, fitting out, furnishing, or equipping such boat, or vessel. 2d. For all sums due for wharfage or anchorage of such boat or vessel, within this Territory. 3d. For all demands or damages accruing from the non-performance or malperformance of any contract of affreightment, or any contract touching the transportation of persons or property, entered into by the master, owner, agent, or consignee of the boat or vessel on which such contract is to be performed: and 4th. For all injuries done to persons or property by such boat or vessel.” The provisions of a single statute, or one embracing but one subject matter of legislation, should be, and usually are consistent, having direct and pertinent relation, the one with the other. In the speci-catioti of claims which may be recovered against a boat or vessel under this act, what reference or application can the words,“master,” “ consignee,” “ fitting out,” “ furnishing or equipping,” “ anchorage,” &c. have to a scow, used as a lighter and wood boat to vessels or steam-boats in the river and bay of Milwaukee? Again, it is provided that such claims as have been enumerated may be proceeded for, against the vessel or hoot navigating the waters of this Territory, by name. Immemorial usage has given to commercial or navigating boats or vessels, a distinctive proper name, and to such this provision applies, and not to scows, ferry-boats, yawls, arks, flats, canoes, &c., which have technical descriptive names and not proper names, The remedy intended to be afforded to meritorious claimants under this act, is obvious. To aid commerce and trade, inducements are held out in the law, to builders, repairers, owners of boat stores, merchants and dealers who wish to contract for carrying freights, to engage and contract with owners, masters, agents or consignees of'boats or vessels navigating our waters, and engaged in the carrying and transporting and transportation from port to port, of persons and property, through the prompt remedy given them against the boat or vessel so engaged, by name, without compelling them to resort to a suit against the master, owner, agent, or consignee, who may not be at the time within the jurisdiction of the courts in the Territory whore the credit is given. Such a provision would not be necessary in relation to scows, &c., which are not sent from abroad to navigate our waters, but are confined to particular ports or wharves, rarely go out of sight of the port where they have a special and limited use, and are always owned. It is scarcely required further to illustrate or draw the line of distinction, as must have been intended by the legislature. We may be aided, however, by decisions of the highest courts in the States on similar statutes. In the case of the Farmers' Delight vs. Lawrence & Sneden, 5 Wendell, 564; the court were of opinion, that the New York acts were not applicable to a boat whose ordinary business was confined to a particular port or place, and out of sight of which it never went, except temporarily and for a special purpose. In the case of the owners of the Sloop Rochester vs. Walker & McFarlan, 1 Wendell, 577, the court said; “ it never could have been the intention of the legislature to embrace within these acts, the innumerable row boats, sail boats, scows, and other small craft which crowd our harbors; they are not within the reason of the law, nor within its terms as they are ordinarily used. They are not designated as ships or vessels in common parlance. These terms are usually applied to vessels of a larger class.” See Burkbeck vs. Hoboken horse ferry-boat, 17 John. Rep. 54; and Johnson vs. S. B. Sandusky, 5 Wendell, 510; where the same opinion is recognized.

Weu,s, for pl’tff in error.

We are, therefore, unanimously of opinion, that the District Court erred in refusing the instructions asked, and in giving the instructions which it did, and that the decision be reversed, and the cause remanded to the said District Court, for such other proceedings as may be proper and legal.


author: Judge Miller

text:
    JAMES MORRISON, pl'ff in error, vs. ROBERT L. REAM, def't in error,

    >• Error to Dane county. )

    Where a writ of attachment is quashed upon motion for the insufficiency of the affidavit, although it has been personally served on the defendant, the suit must be dismissed, with costs, and it cannot proceed as in ordinary cases of summons.
    An affidavit which only states the aggregate of the plaintiff’s claim, and shows that the defendant has counter claims as a set-off, but does not state that there is any balance due to the plaintiff, or show the amount that is due, is not sufficient to authorize the issuing of a writ of attachment.
    The facts necessary to entitle a party to the writ, must bo proven to the satisfaction of a judge or supreme court commissioner, by legal evidence of the party or a witness; mere belief is not sufficient; nothing but facts and circumstances will do.
    Where fraud is charged as the ground for issuing the writ, the judge or commissioner must be satisfied that the fraud exists by proof ot facts and circumstances sufficient to raise such strong presumptions of guilt as would, without contradiction or explanation, induce the officer to convict the defendant of the charge if he was on trial before a petit jury; the mere belief of any person is not sufficient.
    If the officer indorses his satisfaction on the affidavit, the court may go behind the indorsement, and examine the affidavit itself; and if the facts and circumstanchs are not sufficiently provento authorize the issuing of the writ, it may be quashed upon motion.
    Morrison sued out a writ of attachment against Ream in the Dane District Court, on the 25th March, 1842, founded upon an affidavit, which is embodied in the opinion of the court. The supreme court commissioner before whom the affidavit was made indorsed upon it the following certificate of his satisfaction:
    “Agreeably to the requirements of the act approved February 15th, 1842,1 hereby certify, that I am satisfied of the truth of the facts set forth in the above affidavit, and that the plaintiff is entitled to a writ of attachment. Given under my hand, at Madison, this 25 th day of March, 1842.
    [Signed] ALBERT W. PARRIS,
    Supreme Court Com’r, Dane County.”
    The writ of attachment concluded with a summons, and was personally served on the defendant.
    At the return term the defendant moved the court to quash the writ, because of the insufficiency of the affidavit, and of the in-dorsement of satisfaction.
    The District Court sustained the motion, and dismissed the suit; and Morrison sued out this writ of error to reverse the judgment.
    Two questions were presented for the consideration of this court: Whether the District Court erred in quashing the attachment; and whether, where the attachment is quashed, and there has been personal service of the summons, it is error to dismiss the suit.
    Brigham, for plaintiff in error:
    The court below ought not to have quashed the writ upon the motion. The statute affords the defendant a different remedy, by traversing the affidavit; and if the decision shall be in his favor, his’ property is released, and the suit progresses; the writ is not quashed. The writ is two-fold: to attach, and to summon; and if the attachment is bad, the summons should not be quashed, for by it the defendant is brought into court, as in ordinary cases. The court below ought not to have considered the motion, but left the party to his remedy pointed out in the act. The law has made the officer before whom the proof is made the judge whether the attachment ought to issue; and if he is satisfied of the facts, and so certifies, the court cannot look beyond his certificate. If ho certifies that the proof before him was sufficient to satisfy his mind that the necessary facts exist, the court is bound to believe that they were proven to his satisfaction. But if the court can look into the affidavit,- and judge of its sufficiency, it will be found that the officer had enough before him to satisfy him that the facts existed.
    Clark, for defendant in error:
    The court is asked to give a strained construction to the act of 1842. The right of the defendant to traverse the affidavit, and if it appears to be false, to have his property released, does not deprive him of the right to have the writ quashed if it has issued upon an insufficient affidavit. The law makes the affidavit the foundation of the writ itself, and all the proceedings under it. If the affidavit is bad, the writ has improperly issued, and the defendant has been improperly brought into court.
    Whiton, in continuation:
    The court is not concluded' by the officer’s indorsement of satisfaction. The practice of other courts upon similar statutes iss to look behind the certificate, and see whether the officer ought to have been satisfied; to examine the affidavit, and test its suffi-eiency by the statute. 1 Co wen’s Treatise 479, 480. 10 Wendell, 420. 10 John. Rep. 169. Vosburg vs. Welsh, 11 John. Rep. 175. Smith vs. Lewis, 14 Wendell, 237.
    The court, then, will examine the affidavit in this case, and in doing so, it will be found to be defective in every material requisite. As to the indebtedness, it does not show that Ream owed him any thing. It may be true in every particular, and yet Morrison may be indebted to Ream on a balance of the accounts between them. The facts stated are not sufficient to justify either Morrison or the officer in believing that the charge of fraud was true. The decisions in New York say, that the belief of the party is neither a fact nor a circumstance from which the officer can be satisfied of the existence of a cause for issuing the writ.
    Field, in leply:
    The New York attachment law is different from ours. There the officer before whom the proof is made must preserve the evidence, that the court may see that he was satisfied upon sufficient testimony. 2 N. Y. Rev. Stat. 162. Therefore, the decisions that have been made in that state, are not conclusive upon the question before this court.
    The two statutes are different in another respect. There the party must state a sum certain to be due after allowing all credits and off-sets. Under our statute it is sufficient to state the aggregate of the plaintiff’s, without noticing or showing any set-off of the defendant, leaving that matter for adjudication in the case. The affidavit is sufficient in this particular. It shows the amount of Ream’s indebtedness, that it arises out of contract, and for what consideration.
    The District Court certainly erred in quashing the writ, and dismissing the suit. The most that would be proper in the case, under the provisions of the statute, considering them all together, would be to quash the attaching part cf the writ, and release the property, without dismissing the suit. The attachment is only in aid of the summons. The summons brings the party into court to answer the action; the attachment holds the property subject to the judgment that may be obtained, to guard against the fraud of the defendant. In this case, the defendant was as properly brought into court by this writ as he would have been by an ordinary summons, and he ought to be held to answer the action.
   Judge Miller

delivered the opinion of the court:

This cause was commenced by attachment in the District Court of Dano county, by the plaintiff in error against the defendant in error, on the following affidavit: “James Morrison, being duly sworn, doth depose and say, that Robert L. Ream is justly indebted to him, for goods, wares and merchandise sold and delivered, money lent, paid, laid out and expended for the use of said Ream, in the sum of two hundred, eighty-two dollars and sixty-six cents, not deducting certain counter demands and set-off claims against the above claim in favor of said defendant, the exact amount of which counter demands this affiant is not knowing: And this af-fiant swears that his whole claim arises from, and is founded in, contract: This affiant further deposes and says, that said Ream is about fraudulently to dispose of his property, so as to hinder or delay him, the said James Morrison in the collection of his said demands against him, as this affiant verily believes; because this affiant has frequently requested said Ream to settle and pay him his said demands, or to meet him for the purpose of adjusting the same, and he has refused so to do, assigning no reasonable cause for neglecting to meet this affiant, and settling his said demand; and further, said Ream very recently sold off his goods and effects, or the principal part of them, as this affiant verily believes, and is about to remove, with his family, out of this county, and to leave no property, to the knowledge of this affiant, on which an execution can be levied or satisfied.” Which affidavit was endorsed, satisfied, by a supreme court commissioner.

On motion, on the part of the defendant, the District Court dismissed the proceedings. In this there was no error.

The affidavit leaves the amount claimed too vague and uncertain; and the alledged fraud, is very far from being such a case as to warrant this writ. It cannot be pretended that this affidavit shows that the defendant was about fraudulently to dispose of his property to defeat or delay his creditor.

The facts necessary to entitle a party to a writ of attachment, must be proven to the satisfaction of judge or commissioner, and the circumstances upon which the belief of the affiant is founded; and by the act of Feb. 15,1842, should be embodied in the deposition. Proof, that is, legal evidence, from the party or a witness, is required. Mere belief is not sufficient. Nothing short of facts and circumstances within the knowledge of the affiant will do; 11 John, 175. The Supreme Court of New York, through a long train of decisions, have settled the practice, that the insufficiency of the proof, may be taken advantage of by a motion to quash; 1 Cowen’s Treatise, 480. Belief, report, information, or suspicion, are not sufficient; 10 Wendell, 420. The officer must be satisfied, and he must be so satisfied from proof of facts and circumstances, not from the belief of any one. Such facts must be proven, as will leave no reasonable doubt on the mind of the officer, that the defendant is about to commit the fraudulent acts mentioned in the statute. For instance, if the party proves positively, that the defendant declared his intention to remove or sell his property to avoid the payment of his debts, the officer could draw his own conclusions; 14 Wendell, 237. 3 Cowen, 206. 14 John. 175, 257. 6 Wendell, 438. 6 Cowen, 234. The requirements of the act should be strictly fulfilled; 3 Cow-en, 206. As this is an allegation of fraud, and in its nature a criminal proceeding, the officer should have, at least, such strong presumptive proof, as, being uncontradicted or unexplained, would induce him to convict the defendant of the charge, if he were on trial before the petit jury; 10 Wendell, 608.

In this case there is nothing to traverse; the fact set forth in the affidavit not being sufficient to lay the foundation for the writ. When a writ has been served on the defendant, the publication of notice is dispensed with, so is also the entering of the defaults, but the defendant must appear and plead, as in other cases. It is contended that when the writ was obtained upon proof, and -upon a traverse of the facts it is-made to appear that they arc not true or well founded, then, by the direction of the statute, the suit becomes nothing more than if it had been commenced on summons. But it would load to oppression, if we were to put such a liberal construction upon the act as to save the suit and the costs to the plaintiff in such a case, or a case like the present. The fourth section of the act authorizes a traverse of the facts set forth in the affidavit, and if their falsity should be made to appear, the property attached shall be released. The act no where says that if the attachment is abated or quashed, that the suit shall be and remain as in cases of a summons. By the seventh section, in case of personal service of the writ upon the defendant, it shall not be necessary to call the defendant and have his default entered, but the suit shall proceed as in ordinary cases of summons, and no notice shall be required to bo published, as required by the third section of the act to which this is amendatory. From the reading of this section, it is apparent that the only object of the legislature in providing for the annexation of a summons to the writ of attachment was as herein stated, and cannot be construed to extend- to the relief of a party who has obtained a writ of attachment, without having strictiy complied with the pre-requisites of the statute.

Brigham and Field, for pl’if in error.

Clark and Whiton, for def’t in error.

The judgment is therefore affirmed with costs.


text:
    HEZEKIAH H. GEAR, pl'ff in error, vs. CHARLES BRACKEN, def't in error,

    | Error to Iowa county.

    In an action of debt on an arbitration bond founded on an agreement of submission and an award, the declaration must aver, and the award must show, that- the arbitrators conformed, in every material respect, to the agreement of submission.
    Where the parties agreed to submit the matters in dispute between them to the. arbitration and award of the committee of awards of the Galena Chamber of Commerce, to arbitrate and award according to the by-laws, rules end regulations of the Chamber of Commerce, the award must show that the arbitrators proceeded according to such by-laws, rules, and regulations, or it is void.
    Where matters in dispute are submitted to arbitrators, they have no power to award that each party shall execute to the other a full release of all demands to the date of the award.
    Arbitrators have no power to award costs against either party; nor that the sum awarded shall be paid within a specified time.
    On the sixth day of September, 1839, Gear and Bracken entered into a written agreement, under seal, to submit the matters in difference between them to the arbitration and award of the committee of awards of the Galena Chamber of Commerce for that month, (naming the committee in the agieement,) “according to the rules and regulations of the aforesaid chamber of commerce, as provided by the rules, by-laws, and regulations thereof;” and they executed each to the other a penal bond in the sum' of $¡300 conditioned for the performance of the award when made. The committee took up the matter for arbitration on the 29th of September, 1839, and made an award in writing under the seals of the arbitrators, by which they awarded that Bracken should pay to Gear the sum of ‡188 42, and $13 50 for costs, which should be paid in Galena in fifteen days with interest, and that upon the payment being made, each party should execute to the other, in writing, a release of all manner of demands whatever to the date of the award. The award did not show that the committee proceeded according to the by-laws, rules, and regulations of the Galena Chamber of Commerce.
    Bracken refused to abide by and perform the award,’and Gear brought an action of debt on the arbitration bond in the Iowa District Court. The declaration set out the substance of the bond, the agreement to submit, and the award, and averred the breach in the non-payment; but there was no averment that the committee of awards proceeded in the arbitration according to the bylaws, rules, and regulations of the Galena Chamber of Commerce. Bracken set out the bond, agreement and award, on oyer, and demurred generally to the declaration. The District Court sustained the demurrer, and gave judgment for the defendant. To reverse this judgment, Gear sued out a writ of error, and has brought the cause into this court.
    The assignment of error questions the decision of the District Court in sustaining the demurrer to the plaintiff’s declaration.
    Moses M. Stkong,for plaintiff in error:
    The substance of the bond, the agreement of submission, and the award, is set out in the declaration according to their legal effect. This is all that is required. If the declaration had have avetred that the award was made according to the by-laws, rules, and regulations of the Galena Chamber of Commerce, it perhaps could not have been proven. The award itself does not show it, nor was itnecessary thatit should. The parties mutually selected a commercial tribunal, not, it is true, established by law, but of very general use, and which it would seem had rules and regulations, to settle their disputes. The award that has been made, is formal and complete, and the presumption is, that the arbitrators conformed to the rules and regulations that were to govern them, until it shall be made to appear to the contrary. If there was any departure of the arbitrators from the authority conferred upon them by the parties, that would violate the award, the defendant should have pleaded it, and made an issue of facts to be tried by a jury. The ground taken is not good on demurrer.
    Dukn and Buknett for defendant in error:
    The parties agreed to submit their matters of difference to arbitration, but provided that the arbitrators should proceed according to certain by-laws, rules and regulations. The arbitrators have no authority except what is given them by the agreement of the parties. This they must fulfil, and not slop short of it. To make the award good, every materia] matter must appear affimatively on its face, and must be averred in the declaration. The award and declaration aro bad in this respect for deficiency.
    The award is also void, because the arbitrators exceeded their authority. They had no power to award costs against Bracken. They had no power to award that Bracken should pay the money to Gear in Galena within fifteen days with interest. They had no power to award that each party should execute to the other a release of all manner of demands to the date of the award. Nothing was submitted to the arbitrators but the matters in dispute. There may have been demands on one side or the other, not at all in dispute, and which were not laid before the arbitrators, yet they say they shall all be released. Such excess of authority cannot bo sustained. See Kidd on Awards, 140, 279. 1 Bacon’s Abr„ Title, Arbitrament, and Award, letter E. 282.
   Opinion of the court by

Chief Justice Dunn:

This is an action of debt upon an arbitration bond, brought by the plaintiff. Gear, against the defendant, Bracken, in the District Court of Iowa county. At the April term, 1842, the defendant filed his general demurrer to plaintiff’s declaration, after oyer craved, and setting out the agreement to submit to arbitration, bond, and award; which demurrer was sustained by the Court, and judgment entered for the defendant. To the decision of (lie District Court sustaining tho demurrer, the plaintiff excepts, and prosecutes this writ of error to reverso the decision.

From an inspection of the record, it is apparent that the plaintiff’s declaration is justly obnoxious to this objection: a material averment is wanting, that the arbitration was had, and the award made, according to the rules and regulations established by the by-laws of the Galena Chamber ofComrnorce. The award is liable to those objections: it does not show upon its face, that the arbitration was conducted and the award made agreeably to said rules and regulations. It exceeds the powers given by the submission, in awarding that upon the payment by Bracken to Gear of the sum awarded, that each should execute to the other a general release in writing of all manner of demands whatever to the date of the award; in awarding costs against Bracken; and in awarding that payment should be made by Bracken to Gear of the sum awarded within fifteen days after the date of the award.

Moses M. Strong, for pl’ff in error.

Dunn and Burnett for def’t in error.

There is no principle of pleading better settled than that a plaintiff is required to set out in his declaration every matter material to show his right of action, with sufficient legal certainty. In this case, the committee of awards of the Galena Chamber of Commerce, derive their sole power to arbitrate in the premises from the agreement between Gear and Bracken to submit the matters in dispute to their award and decision. They must conform in every respect to the agreement, and cannot exceed the powers conferred, or award less, or stop short of the matters submitted. Then it is material that the declaration should aver that the said committee did arbitrate and award on the matters submitted, according to the rules and regulations of the said chamber of commerce, as prescribed in their by-laws, this being a substantive part of the agreement of submission. The objections to the award are well founded; it must show that the said committee of awards arbitrated and awarded agreeably to the rules and regulations of-the said chamber, as prescribed in their by-laws. To award generally that the arbitration and award was in proper manner and form,” is not sufficient. It exceeds the authority and power conferred by the agreement to submit, in awarding'that the said Gear and Bracken, upon payment by Bracken to Gear of the sum awarded, should each execute to the other a general release of all demands whatever to the date of the award. The matters submitted were the matters in dispute; this part of the award is so comprehensive as to embrace all matters of demand,, even those not in dispute. It goes beyond the1 powevs conferred in awarding costs against Bracken, and payment by him of the sum awarded to Gear, in fifteen days from the dale of the award. The authorities on these points are full in 1 Chitt’y Plead, and Kidd on Awards.

We are therefore unanimously of opinion that the judgment of the District Court of Iowa be affirmed, with costs.


author: Judge Mili.es:

text:
    JOHN GALE, Jr., appellant, vs. ALONZO R. CUTLER, appellee,
    ) Appealjromadecree of the Milwaukee ) Disirict GourL

    Every bill in equity must contain in itself sufficient matter of fact, to maintain the cause of the complainant, so that the same may be put in issue by the answer, and established by proof.
    The proo/s must correspond with the allocations of the parties, and if they go to matters not within the allegations, the court cannot act judicially upon them as the ground for its decision.
    Whether a bill contains ground for relief, or any equity, is a question of pterits; the inquiry is, has the complainant averred any matter which, if true, entitles him to the relief prayed for, or any relief; or set it forth in the manner required by the rules of equity ? If the bill contains no equity, or sets it out defectively, it is good cause for a general demurrer.
    Where a complainant seeks relief against a contract, under the act of Congress of the 31st March, 1830, for the relief oftho purchasers of the public lands, and for the suppression of fraudulent practices at the public sales of the lands of the United States; the bill must alledge and show, that the contract sought to be rescinded is within the statute, and that the complainant has no legal evidence of the contract, to entitle him to relief in equity.
    If a mortgagee is about to foreclose a mortgage by advertising and selling the premises, a court of chancery will not enjoin him or interfere, until the mortgagor first does equity on his part.
    Gale filed a bill in chancery against Cutler, In the Milwaukee District Court, setting forth—
    That on or about the 10th March, 1838, Cutler was in possession of the N. E. fracl’l qr. of sec. 3, T. 6, R. 19, in Milwaukee county, then the property of the U. S., and in expectation that it would be shortly sold at public sble, agreed in writing with Gale to convey to him by deed, the said land, whenever it could be pur? chased, upon the express_;,understanding and condition that Gale should pay to him $0000, or secure the same by mortgage on the premises after the conveyance; which agreement is charged to be in the possession of Cutler.
    Oh the execution of the agreement, Gale paid to Cutler $375; and by two bonds, bound himself to pay to Culler $5625, in different instalments.
    Gale immediately entered into possession of the premises, and expended for himself and others in improvements thereon, before the public land sales, $20,000.
    At the land sales, Gale was ready and desirous to purchase the land in his own name, but Cutler refused to permit him to do so, and threatened to bid the full value of the land himself. .
    On the 16th October, 1839, the day previous to the land sale, Cutler executed to Gale a deed for the premises, and at the same time Gale executed to Cutler his note for $6000, and a mortgage on the premises to secure the payment according to the aforesaid bonds and the' first contract, which deed, note, and mortgage were placed in the hands of one Cushman, to bo delivered respectively to the parties, when Cutler should enter the premises according to the first agreement.
    On the 17til October, 1839, Cutler bought the land at public sale for §1 25 per acre, and on the same day Cutler executed to Gale a deed for the land for the consideration of $8013 66, reserving for himself one village lot, and Gale gave his note for that sum, payable in one year with interest, and a mortgage on the premises to secure the payment, the papers placed in the hands of Cushman having been.cancelled.
    Tile bill charges that Cutler has advertized the land for sale by virtue of a power contained in the mortgage for that purpose, and lhat he refuses to deliver up said mortgage and note to he cancel-led, as he ought in equity to do.
    The hill prayed for an injunction against Cutler to restrain him from foreclosing the mortgage, and a decree that the mortgage and note should be cancelled and delivered up, and that Cutler should pay fo Gale the excess already paid for the land over the sum of $1 25 per acre.
    To this bill Cutler filed a general demurrer, which the District Court sustained, and dismissed the bill with costs. Gale appealed from this decision to the Supreme Court.
    Wells, for appellant:
    The District Court erred in dismissing the bill,because it shows, a case strictly within the act of Congress providing for such cases. See act of 31st March, 1830, 4 Story, 2188, sec. 3. It is said that the court cannot give relief without rescinding the contract in tolo, and decreeing the land to Cutler, on the principle that he who asks equity must do equity.. But this bill is founded upon a positive act of Congress, and only ask for a recision of the unlawful part of the contract according to the provisions of the act. Under the law the contract is good for ‡1 25 per acre; it is the excess that is made void. Equity decisions and chancery practice have nothing to do with the ease. The' bill is not based upon principles of equity, but on a positive act of Congress that has no equity in it. The law stands a positive act of legislation, and secures to the party the relief prayed for, and the coui t is bound to carry the law into effect.
    Field, for appellee:
    The bill does not present a case within the act of Congress. The parties made and modified their contract several times, and the one sought to be avoided was made after the land sale. Besides, there was no contract for Gale to pay any excess over the sum which Cutler should have to pay for the land; he was to pay a sum certain, without reference to what the land should cost Cutler. The case is not one provided for by the statute. The act relied upon is a rigid law, and the party must bring himself clearly within its provisions before the court will disregard the, principles of justice and equity to grant him relief.
    Courts of equity will not relieve one party to a fraudulent contract and give him the benefit of the fraud. The deed to Gale for the land is a part of the same contract; and if any part is void the whole is void; and if relief is granted, the parties must be restored to their original rights.
    To authorize a court of equity to interfere under the statute, the complainant must show in his bill that he has no legal evidence to establish the contract. The bill before the court does not show this; it only leaves the court to infer it, which the court cannot do. But from the bill itself it appears, that there is evidence of the contract. Then it is a case for a court of law, and not of equity jurisdiction. If the complainant has evidence to prove his contract, he must sue at law, and cannot be relieved in equity; 3 Paige’s Cby. Rep. 154.
    If the complainant is to be relieved by rescinding the contract, the court must place the parties in statu quo, Fonbl. Eq. 54; 2 Story’s Eq. 6, 16.
    It is admitted that there is no equity in the bill or justice in the case, but rests, it is said, upon positive law. Congress and other legislative bodies enact laws in reference to the principles of justice and equity, and if the appellant is without equity, his case ought to be dismissed from the court.
    Whiton, in continuation:
    The bill sets out a contract fairly made without any allegation of fraud, and asks the court to rescind it, only so far as the rccis-ion will be for the benefit of the appellant. This could not bo decreed, even if the case was brought within the act of Congress. That act says that every agreement or writing, founded on such a contract, shall be void. The deed to Gale for the land is a part of the same contract, and if the note and mortgage are void, the deed is void also.
    The act of Congress relied upon, is in derogation of the common law; it is a statute of pains and penalties, and must receive a strict construction; and the court will not annul a contract under it, unless it comes within its provisions in every particular. The contract set up iu the bill is not within it. There is no agreement that Gale should pay any excess over what the land should cost Cutler. By the first agreement Cutler was bound to purchase the land at the land sale, and he might have liad to pay a greater sum than he was to receive from Gale. His getting it at the minimum price was an accidental circumstance.
    But the contract set up in the bill and sought to be rescinded, was made, after Cutler purchased the land, and the act of Congress does not mention any such case. It is true, that the first contract is stated with some obscurity, and it may bo that the latter was, in some degree, founded upon it, but the bill shows that they were essentially different from each other.
    Akkold, in conclusion:
    The court must determine this case upon a sound construction of the act of Congress, and whatever of odium may be attached to the appellant for seeking relief under it, if he brings himself within its provisions the court is bound to give him the benefit of them.
    The design of the fourth section of the act is to prevent fraudulent combinations to suppress biddings at the public land sales. The fifth section is to make void any contract entered into for that purpose, and not that only, but to give a remedy to any person who may bo oppressed by such practices, gee the case of Piatt vs. Oliver and others, 1 McLean’s Hep. 301.
    It is contended by the appellee, that if the court grants relief in the case, the whole contract must be rescinded and the parties placed in statu quo. If this were an ordinary case, the principles of equity would so apply; but it is a peculiar case, brought under a particular statute, and the common rules of equity practice do not govern it. If it comes within tho law, a part of the contract may be rescinded and the rest remain valid. Tho statute only makes void all contracts to pay an excess over what the land costs the purchaser at the sale; and if such excess has been paid, gives the party a right to recover it back. If it was designed to rescind the deed, it would have given him the right to recover tho whole sum paid. By this construction of tho act the law is made to harmonize, and its beneficial provisions will be carried into effect.
    The deed and mortgage for the land were not, as has been said, a new contract, made after tho, purchase of tho land by Cutler. The bill shows that they were made in pursuance of, and founded upon tho previous contract between the parties, made before the-land sale.
   Opinion of the Court, by

Judge Mili.es:

Tho bill of complaint of John Galo, jr. filed in this case, sets forth, that on or about the tenth day of March, 1833, Alonzo R. Cutlor, this defendant, was in possession of tho south-east fractional quarter of section three, township six, of range nineteen, in Milwaukee county, the same then being the property of the United States. In the expectation and belief that tho same would shortly thereafter he sold by tho United States, the said defendant entered into an agreement, in writing, with complainant, to convoy to him by warrantee deed, the said premises, when the same should be purchased of the United States; upon the condition that complainant should pay to him tho sum of six thousand dollars, or secure tho payment thereof by a mortgage of the premises, after thesame should have been conveyed to complainant by defendant. That on the execution of said agreement, complainant paid to defendant three hundred and seventy-five dollars, and gave his bond to defendant for the amount of five thousand six hundred and twenty-five dollars, and immediately received from said defendant. possession of the premises, which he continued-to occupy and hold until tho day of the sale thereof by the government and ever since, and for himself and others, expended twenty thousand dollars in improving said premises. At the time of the sale of the said premises by the government, complainant was ready, willing and desirous to purchase tho land in his own name, but said defendant absolutely refused to allow him to do so, and insisted on buying it himself, and threatened to bid against complainant at the sale to the full value of the property.

On the sixteenth day of October, 1839, being the day previous to the sale of said premises by the government, at the Milwaukee land office, said defendant executed to complainant a warrantee deed for the same, which was lodged in the hands of Peter N. Cushman, to be delivered to complainant, after defendant should have obtained a title to said premises, according to the agreement of the tenth of March, 1838, and that, at the same time, complainant executed to defendant his promissory note and mortgage of said premises, to' secure the payment of the balance of said purchase money according to the condition of the bond referred to, and agreeably to, and in pursuance of the said agreement,- which said noto and mortgage were placed in the hands of said Cush-man, to be delivered to said defendant whenever complainant should receive from said Cushman the said deed. The said premises were sold by the government, on the seventeenth day of Oct. 1839, by public auction at the Milwaukee land office, and were purchased by defendant, who paid to the Receiver at said office,' therefor, the minimum price of one dollar and twenty-five cents' per acie therefor, and received from said Receiver a duplicate receipt for such payment. On the said seventeenth day of October,' 1839, the defendant executed and delivered to complainant, for the consideration of six thousand and thirteen dollars therein expressed, a warrantee deed for said premises, and thereupon the complainant executed and delivered to defendant his promissory note for said consideration, payable in one year thereafter with interest, and to secure the payment thereof, executed and delivered to defendant a mortgage of said premises, and the papers placed in the hands of Cushman were cancelled. The defendant had advertized in a newspaper printed in Milwaukee county the said premises for sale on the twenty-eighth day of January, 1841, by public auction, by virtue of the power of sale contained in said last mentioned mortgage, the said sum of money secured thereby not having been paid. The bill’ prayed an injunction to restrain said sale, and also prayed for a decree, that the overplus paid by complainant over and above the price of the land at the rate of one dollar and twenty-five cents per acre, be returned to the complainant, and that said last mentioned note and mortgage be can-celled.

At a term of the District Court for Milwaukee county, in June, 1841, the defendant demurred to the said bill, on which issue was joined, and after argument, the court dismissed the hill; from which decree the complainant appealed.

Every'bill must contain in itself sufficient matter of fact, per se, to maintain the case of the complainant, so that the same may be put in issue by the answer, and established by proofs. The proofs must be accor ing to 'the allegations of the parlies, ; nd if the proofs go to matters not within the allegations,1 the court cannot judicially act upon them as the ground for its decision; 9 Peters? 483. Whether a bill in equity contains any grounds for relief, or any equity, is a question of merits. The inquiry is, has the complainant averred any matter, which if true, entitles him to th 1 relief prayed for, or any relief; or set it forth in tho manner required by the rules of equity? If the bill contains no equity, or sets it out defectively, it is a good cause for demurrer generally, Tho averments in this bill do not disclose any things of themselves, to entitle the complainant to the interposition of a court of chancery. But it is contended, that this is a proper case, as set forth, for the action of the court, under the fifth section of an act of Congress, approved March thirty-first, one thousand eight hundred and thirty, entitled an act for the relief of the purchasers o f the public lands and for the suppression of fraudulent practices at the public sales of the lands of the United States.” Whether this is a contract or not, in violation of this statute, cannot be decided on this bill, for the complainant does not so charge it, nor does he even refer to it. He leaves the court to infer from his bill that it is so, which cannot be done, for a court of chanqery does not act upon inferences or uncertainties, but upon allegations and facts. By that statute, the contracts therein referred to, are void, and the party aggrieved may sue in any court having jurisdiction; and, if he has no legal evidence of the contract, he may, by bill in equity, compel a discovery thereof; and if, in such case, the complainant shall ask relief, the court, in which the bill is pending, may proceed to final decree between the parties to the same. The want-of legal evidence of the contract, is not even averred in this bill. It is held that equity will not enforce a discovery that is to lead to a forfeiture; 1 J. C. Rep. 368; ibid. 439; 2 Dessans, 341; 3 Har. & John. 185; 2 Dallas, 92; 12 Sergt. & Rawle, 46. Hence, possibly, the cause of this provision in the statute.

Upon geneial principles of equity, if a party is proceeding in law or equity to collect his notes and mortgage through the instrumentality of the court, that then, on the proper representation and proof of the facts, the court will give him relief without his going further on his part; 5 John. C. R. 136; 3 Bibb, 207; 4 Sergt. & Rawle, 151. But it will abundantly appear in 5 John. C. R. 49, 136; 1 John. C. R. 368, 439; that if a party is pvocoeding to foreclose a mortgage by advertisement, a court of chancery will not enjoin him, or interfere, until the grantor first does equity on his part.

Wells and Aenold, for appellant.

Field and Whit orí, for appellee.

The judgment of the District Court is affirmed, with costs.