author: Chief Justice Draw:

text:
    JAMES D. DOTY, ALEXANDER J. IRWIN, and DAVID JONES, pl'ffs in error, vs. MOSES M. STRONG, def't in error.

      Error to Dane county.

    Where a defendant is defaulted for want of a plea, and the plaintiff agrees to set aside the default on condition that the defendant will plead to the merits and go to trial, a general demurrer to the declaration is not such a plea as the plaintiff is hound to receive, and if he objects to It, the court should not allow it to be filed.
    There is no rule of court or of law that limits the time of returning a deposition into court, or directs by whom it shall be delivered; and where a deposition was duly taken and certified, and ream ed into court by the plaintiff on whose behalf it was taken on the second day of the term, several months after it was taken, it ought not on that account to be rejected.
    A deposition or a witness should be objected to at the time of offering to read the deposition or swear the witness: If once admitted, the. court cannot take either from the jury by instruction; though the court may instruct the jury to disregard evidence or testimony on the ground of interest developed in the trial.

      Exceptions to testimony taken in the court below, will not be considered, ■unless the evidence is made a part of the record by the-bill of exceptions.
    Common carriers are liable, upon their general undertaking, to the public, lor neglecting or refusing to transport the goods of any person who applies to them with such goods as they.have undertaken to carry, in condition to be transported, at the place designated for receiving them; and no special contract with the particular person so applying, is necessary to charge them.
    In an action against common carriers apon their general undertaking, it is necessary to fix upon them their character its such by testimony; and a notice of their general undertaking, published by them in a public newspaper, when identified with the defendant's by other evidence, is proper testimony in the cause.
    In an action against common carriers for neglecting or refusing to carry goods, it is not necessary to prove ally special undertaking of the defendants.
    Common carriers are liable for refusing to carry when properly requested, as well its for negligently carrying or failure to carry after the freights have been delivered to them.
    A refusal of the court to instruct the juryupon abstract principlcsof law, not presented in the record or by the facts in the case, is not error; and the court mast respond to the facts so far, as to decide whether a principio oí law is raised by the facts or not.
    The fact that no freight boats passed on the line of transportation in which the common carriers were engaged, after the application of the plaintiff, is no defence to the action; if the fact liad been that boats could not possibly pass at the time of the request, from causes out of the control of the defendants, they would then be excused for refusing to carry.
    This was an action of assumpsit, originally commenced by Strong against the plaintiffs in error, in the Iowa District Court, The declaration contained two counts; the first alledging that the defendants made arrangements to transport merchandize from Green Bay to the Wisconsin Portage in durham boats of thirty tons burthen, and that they undertook and promised the public to transport all such merchandize and freight as they should be reasonably requested to do, from Green Bay to the Portage, at one dollar and twenty-five cents per hundred pounds; that on the 1 Oth September, 1839, the plaintiff had al Green Bay a large quantity ■of freight, consisting of merchandize and household furniture; that the defendants were then and there requested by the agents of the plaintiff to transport the same to the Portage, but the defendants, not regarding their said undertaking, refused so to do; that the plaintiff was unable to get his goods transported by water, and was compelled to leave them for a long time at Green Bay by which they became greatly damaged; and that the plaintiff was put to great expense injuring teams to haul the said goods from Green Bay to the Portage, by all of which ho sustained great damage, and averred that the defendants became liable to pay said damages, and that in consideration thereof they undertook and promised to do so. The second count was for money paid, laid out and expended. To this declaration the defendant Doty pleaded the general issue, before the other defendants were served with process. Upon this plea a trial was had in the Iowa District Court, and a verdict and judgment rendered in favor of the plaintiff. Doty sued out a writ of error, and at the August term 1840, of this court, the judgment was reversed, and the cause remanded for further proceedings.
    After this, the plaintiff sued out alias process and had it served upon Jones and Irwin, and also obtained leave to amend his declaration, upon which he filed anew declaration, setting up a special undertaking of the defendents to carry the goods, &c., and averring special damages. To this declaration, the defendant Doty demurred generally, and the Court sustained the demurrer, to which the plaintiff excepted. After these proceedings, the cause was removed, by change of venue, to Dane county.
    At the November term, 1841, of the Dane District Court, the defendants, Jones and Irwin, who had been surved with process, were in default for want of a plea, when the plaintiff agreed to waive the default on condition that they would plead to the merits and go to trial; whereupon they offered to file a general demurrer to the declaration, which was objected to by the plaintiff as not within the stipulation;'and on a subsequent day of the term, the court decided that the demurrer was not within the terms of the agreement allowing them to plead, and that they must plead to the merits or be defaulted, upon which they pleaded the general issue. At the same term the defendant Doty filed his affidavit, staring that ho was not ready for trial by reason of being taken by surprise by the deposition of Thomas J. Ormsbee, taken by the plaintiff and filed during the term, and that he believed he could, if time was allowed, disprove the testimony of said Ormsbee, The record does not show that the court made any disposition of this affidavit. The cause was tried at that term of the court, and in the progress of the trial, the defendants excepted to the following decisions of the court:
    1. In permitting the plaintiff to read in evidence, an advertisement, published in a newspaper purporting to be printed at Green Bay, of the Fox River Navigation Company, and signed by the defendants, in which they offered to transport merchandize as charged in the plaintiff’s declaration, and afile of said newspaper from July to October, 1838, containing said advertisement.

      2. To the admission of a certain written contract between the plaintiff and Calvin Frink.
    3. To the admission of a certain written contract between tKe plaintiff, and William Longdo.
    4. To the admission of the deposition of Ormsbeo.
    And also to the decisions of the Court upon the several instructions to the jury asked for by tins defendant, which are embodied in the opinion of the Court.
    The contracts with Frink and Longdo, were not made a part of the bill of exceptions.
    The commission to take the deposition of Ormsbee, was issued upon interrogatories and cross interrogatories on the 25th May, 1841, to Rutland, Vermont, according to rules of court; was executed on the 27th July, 1841, and was produced in court and filed by the plaintiff on the 9lh November, 1841, the second day of the term,
    Ormsbee testified: That he was present ata conversation between the plaintiff Strong and Jones, one of the defendants, on the 31st May, 1839, in which Jones said that Doty, Irwin and himself,were all jointly interested and engaged in transporting property, &c. up Fox River to Fort Winnebago; that each depended so much upon the others, that little or nothing was accomplished; that as soon as Strong’s goods arrived at Green Bay, he assured Frink and those with him, that they and the goods should be immediately sent up; that Frink and Longdo wove constantly urging to be sent off with the goods, but they were put off and delayed until Strong camo for them in the winter: That soon after the goods of Strong arrived at Creen Bay, he (Jones) earnestly and particularly urged Doty and Irwin to have them sent up immediately; that ho (Jones) went to Detroit, and when he came back he was surprised to find that the goods had not been sent, and learned that the reason was, that Doty and Irwin had detained the boats in hopes of getting a contract to transport government troops to-Fort Winnebago, and then it was too late; that he (Jones) had found much fault with Doty and Irwin for not sending up Strong’s goods, and they would all he obliged to pay Strong bis damages; that Strong then said to Jones, tlmt his original intention had been to send his goods by the Ohio Cana) to Portsmouth, and thence to Galena, but at Buffalo he saw a Green Bay newspaper containing an advertisement signed by Doty, Jones and Irwin, agreeing to transport goods from Green Bay to the Portage for $>1 25 per 100 pounds, and in consequence of that he sent his goods to Green Bay; that Jones upon being asked, said that they had issued such an advertisement, and that they intended to live up to it; that it had made no difference by Strong’s goods being stored in Bruce’s ware house, their ware house was not finished, and Bruce’s was the most convenient place where they could be stored; that the arrangement made by Strong through Merrill at Fort Winnebago to pay the freight, &c. was entirely satisfactory, and that the goods were not delayed a minute on that account, and that there was no other reason for the delay than as above stated; that Strong then presented to Jones a bill of damages amounting to $1700: when Jones said he had no doubt of Strong’s heavy dama-ages; that Doty and Irwin ought to pay it,and if he had been at homo instead of Detroit, he would have paid the bill if the goods had not gone; he had no reason to doubt the correctness of the bill.,
    The jury returned a verdict in favor of the plaintiff for ‡1163 88 damages, upon which the District Court rendered judgment. To reverse this judgment the defendants below have brought the cause into this court by writ of error, and have assigned various errors in the record of the proceedings, which are noticed in the opinion of the Court.
    Jackson, for pll’ffs in error:
    This case brings to the consideration of the Court,the questions as to who are common carriers,and what are their liabilities? As to who arc to be considered common carriers, see Story on Bailment, 322; and as to what are their duties and responsibilities, same authority's . The common carrier is not bound to carry the goods, unless a reasonable compensation is paid or tendered to him. If the goods are not such as he is accustomed to carry; or not in good condition; or if he has no convenience to carry them; or if they arc brought at an unreasonable time, he is not bound to receive them. The boxes of goods and furniture of the plaintiff below, were of so large a size that they could not be carried in durbam boats; they arrived at Green Bay too late in the season to be sent up Fox River, and the defendants made no more trips that season. — ■ A carrier is not bound to receive goods, except when he is about to sot out on his journey.
    The advertisement read from a public newspaper on the trial below for the purpose of proving that the defendants were common carriers, ought not to have been admitted. To make it evidence, it was necessary to prove that it was published by the direction or sanction of the defendants, in order to identify them, with the publication. This was not done. Ormsbee’s deposition only pioves the acknowledgments of Jones, and that cannot bind the other defendants until a partnership or joint liability is. proven.
    The contracts between the plaintiff and Frink, and Longdo,. had no legal connection with the case. It matters not whether the contracts are set out in the bill of exceptions or not. An inspection of the declaration will show, that no possible contract of the kind could have any legitimate application to it.
    The deposition of Ormsbee was taken more than three months, before it was filed, during the greater part of which time, the plaintiff had it in his custody and withheld it from the inspection of the defendants, and brought it himself into the court during the term, and on the eve of the trial. Such a practice is calculated to work great injustice to the opposite party by taking him by surprise at so late a period that he cannot rebut the testimony, and the court ought to have rejected it and discountenanced the practice.
    The declaration alleges no undertaking to the plaintiff to carry,, huta genera] undertaking to the public only. The plaintiff is not entitled to recover upon such a declaration, and the objection may be taken on error.
    The court below ought to have given the second instruction asked for by the defendants. , It sets forth an established principle of law as to the commencement of the liability of common carriers. A delivery and acceptance of the goods to be carried, begins the responsibility. Questions may arise as to whether a delivery was made or not, but in all cases the question is one of fact for the jury, and they must find, a delivery actual or constructive. Story on Bailment, 340; 2 Kent, 468.
    The fifth instruction asked for was proper to be given as applicable to the case. For every undertaking that is binding in law,, there must be a consideration moving from the other party. To. hold the defendants responsible on their general liability as common carriers, and that is the only liability declared upon, the plaintiff ought to show that he had paid or tendered the price of carrying the goods: 2 Kent, 465.

      In the refusal of the court to give the seventh and eighth instructions, the court assumed the facts and did not leave them to the jury to determine; this the court has no right to do. If the principle of law is correct, it ought to have been given in charge, and the jury should have determined the facts.
    The court refused to give the ninth instruction, on the ground that the undertaking of the defendants in the public advertisement, implied a contract. If the plaintiff relied upon the general liability and implied contract of the defendants, then all evidence of a special contract or undertaking ought to have been rejected.
    The declaration is founded upon general liability only, and no evidence of a special undertaking is applicable to the issue, and the court should have given the instruction and rejected the evidence. Cowen’s Treatise, 96, 97; 2 Starkie, 198; Ciarle vs. Smith, 14 Jonh. Rep. 326.
    Dunn, for def ’t in error:
    The declaration is nota common count in its ordinary acceptation, but is on a special undertaking and so declared. It is not an implied promise, and the court will infer that it was supported by proof when the record does not show the contrary. The deposition of Qrmsbec proves the admission of the defendants below, that the advertisement was published by their authority, that they made the contract for transportation, and that the goods were received by them.
    The instructions asked for by the'defendant were properly refused, because they had no cunnectión with the case. However correct the principles of law may be in the abstract, it was no error in the court to refusp to give them to the jury, when there were no facts in the case to which they could be applied.
    The deposition of Orrasbee was taken according to the rules of court in every particular. The defendants say that they were surprised by the deposition, and object to the time of its filing because they have not time to rebut it. If Orrnsbeo had been produced on the stand and examined in court, which might have been the case, they would have had still less time to rebut his evidence; and so in the case of every witness. There is nothing in the objections and they have neither law nor reason for their foundation.
    Whiton, in continuation:

      The advertisement in the newspaper, taken in connection with the deposition of Ormsbeo, was proper evidence for the jury.— The deposition identified the publication with the defendants, who acknowledged it and said they intended to live up to it. Take the testimony altogether, and it is free from doubt.
    There is nothing in the-record to enable this court to judge whether the written contracts between Strong and Frink, and Strong and Longdo, were properly admitted or not. The contracts themselves are not before the court, and in the absence of any thing to show the contrary, the law presumes that the District Court decided right in admitting them.
    The various instructions asked for by the defendants, are all well enough in a proper case, but they do not suit the facts of this case. The defendants are sued as common carriers, and that character is fixed upon them by the testimony. Now it cannot be denied, that where a person holds himself out to the world as a common carrier, or agrees with a person to transport goods from one place to another, and the goods are deposited for him at the wharf or in a warehouse where he is in the habit of receiving his freights or agrees to receive them, and then neglects or refuses to carry them, that he is answerable in damages. The testimony shows that the defendants were satisfied with the arrangements to pay the freight; that the goods were deposited in Bruce’s warehouse at their request or by their agreement, and that the transportation was delayed on no other account than the expectation of getting a government contract. Then there was no applicability in the instructions asked, and upon reference to the testimony it will be seen, that they were based upon a supposed state of case that did not exist; the court therefore decided correctly in ¡refusingthem.
    CoLtxjfs, in reply:
    It is not competent for one partner to bind his co-partners by admissions, after the dissolution of tho partnership; nor can the declaration of one of several defendants bo received as evidence against all until a partnership or joint liability is first proved against all. The acknowledgments of Jones in this case, are not legal evidence against Doty and Invin to prove any thing.
    If the principles embraced in the instructions asked for are principles of law, then they ought to have been given in charge to the jury. The court is bound to give instructions, proper in themselves, if they are applicable to or connected with case. — . The jury are the peculiar judges of the facts, and the court must give the law to the jury. Whore facts are controverted and evidence has boon given to prove them one way or the other, tho court should, if requested, give the instruction hypothetically., predicated upon one or the other state of facts, and it is error for tho court to assume that facts have or have not been proven, and refuse tho instruction.
    Wc do not dispute about the liability of common carriers: But when a special engagement is made with them, they are no longer liable under the general law. To make them liable upon general principles for not receiving and carrying, it is incumbent on the plaintiff to prove, that the goods were such as the carrier usually carried, that they were in condition to ho carried, that they were brought to the place where tho carrier usually received his freights, and that the price was paid or tendered; and that the carrier, without any reasonable excuse, refused to take them. These are principles that cannot be denied; apply them to this case and there has been a total failure of the plaintiff to make out his cause of action; and to supply tho defect he has introduced evidence to prove special engagements and undertakings. It is said that we complain that the plaintiff proved too much: Such is the truth. The only issue in the case is upon a general count against the defendants on their undertaking to the public, upon thoir legal liability for refusing to receive and carry the goods; therefore, evidence of a special contract did not support the declaration; the special contract suspended and superseded the implied contract on the general liability, and whenever it was proven, the plaintiff ought to have been non-suited. The whole of Ormsbee’s deposition, relates to special engagements, and ought to have been rejected, because it docs not apply to the issue. The plaintiff cannot sustain his action upon general liability by proving a special contract when there is but one count in his declaration,
   Opinion of the Court, by

Chief Justice Draw:

Error is prosecuted in this case to reverse the decisions and opinions of the District Court of Dane County, on the various grounds presented in the assignment of errors. The declaration of Strong, plaintiff in the court below, alleges: “Thatthe defendants (who are plaintiffs in error) made arrangements on or about the 2Gth May, 1838, at Green Bay, in the county of Brown, and Territory of Wisconsin, to transport merchandize from said Green Say to a placo called the Wisconsin Portage at or near Fort. Winnebago, in the county of Portage, in said Territory, in durharn boats of thirty tons burthen, and that they then and there undertook, assumed and promised to the public, to transport, for the sum of one dollar and twenty-five cents per hundred pounds, from Green Bay aforesaid, to the Wisconsin Portage aforesaid, all such merchandize or freight, as they should thereafter reasonably be requested to do:” And tho said plaintiff further averred in his said declaration, “that afterwards, on the 10th day of September, 1839, at Green Bay aforesaid, he then and there had a large quantity of freight, consisting of household furniture and merchandise, of tho weight of twelve thousand pounds, and that the defendants were then and there requested by tlie agents of the .plaintiff to transport, the same from Green Bay aforesaid to the Wisconsin Portage aforesaid, but the said defendants, not regarding their said undertaking, refused so to do; to the damage of the plaintiff,” &c. &c., alleging special damage. The general issue was pleaded, and issue being joined, the parties proceeded to trial in the said District Court, at the November term thereof, 1841. During the progress of the trial, many exceptions were taken to the opinions of tho court, which will bo considered in their order.

The last error assigned to an opinion of the court, on a question which had arisen before issue joined, for the sake of older, will be first considered. It is insisted by the plaintiffs in error, that the court erred in refusing to entertain the demurrer filed by the said Jones and Irwin to the declaration of the said plaintiff below at the November term of the said District Court.” To understand this supposed error, it is necessary to consult the record embracing this part of the proceeedings in the case. From the record it appears, that at the said November term, two of the defendants below, Jones and Irwin, wore in an attitude to be defaulted for want of a plea under a rule; that the plaintiff below waived his right to a default, upon the terms that the said defendants should plead to the merits and proceed to trial. The defendants, under this waiver, filed their general demurrer, to which tho plaintiff Strong objected, as against the terms of the waiver. The court continued the objection under advisement to a subsequent day of the term, and thereafter on the seventh day of the term, the court decided that said plaintiff had a right to insist on the terms of his waiver,” whereupon, on leave, said plaintiff withdrew his joinder in demurrer, arid ¡he said defendants Jones and Irwin pleaded the general issue, tho plaintiff joined, and tho trial progressed.

Wo are of opinion that tho terms of waiver are such as tho plaintiff might properly have imposed; that tho demurrer was not a plea to the merits, therefore not a compliance with tho terms; that tho plaintiff interposed his objection timely, and that the court decided correctly in enforcing lito terms. Tho joinder in demurrer after the objection raised; without drawing it, does not vary tho case, or imply a consent of tho plaintiff to join in demurrer and waive his terms, because his objection was pending for the opinion of the court, which, if sustaining it, dispensed at once with the demurrer, and the joinder was only contingent, to bo entertained if tho objection were overruled.

The leave to withdraw the joinder was not necessary, as by the decision of the court the demurrer was rejected as against the terms of the waiver.

In addition to to tho supposed error disposed of, the following are assigned:

1. The court erred in admitting the newspaper containing the advertisement of tho 'Fox River Navigation Company, and also the file of newspapers from July to October, 1838, in evidence.

2. The court cued in admitting in evidence, the contracts entered into between M. M. Strong, plaintiff, and Calvin Frink.

3. The court erred in admitting in evidence, the contract'entered into between M. M. Strong plaintiff and William Longdo.

4. Tho court erred m admitting in evidence the deposition of Thomas J. Ormsbeo.

5. Tho court erred in refusing to instruct on the first point submitted by defendants.

6. The court erred in refusing to instruct on the second point submitted by defendants.

7. The court erred in refusing to instruct on the third point submitted by defendants.

8. The court erred in refusing to instruct on the fourth point submitted by defendants.

9. The court erred in refusing to instruct on the fifth point submitted by defendants,

10. The court erred in refusing to instruct on the sixth point submitted by defondants.

11. The court erred in refusing to instruct on the seventh point submitted by defendants.

12. The court erred in refusing to instruct on the eighth point submitted by defendants. *

13.’The court erred in refusing to-instruct on the ninth point submitted by defendants.

The defendants below wore sued as common carriers; “persons who undertake for hire or reward to transport the goods of such as choose to employ them from place to place.” To make them liable as such, it is certainly incumbent on the plaintiff below, to prove, that they were, at the time of the act complained of, common carriers, within the definition laid down, by such acts on their part, as indisputably fixed that vocation upon them. An advertisement in the public newspapers, notifying the public that they had undertaken the business of common carriers, is legal and. proper evidence. It is necessary that the plaintiff should, by evidence, have identified the defendants with the public notice. — ■ The introduction of such evidence, unsupported at the time by proofs showing that the advertisement was the act of the defendants, might appear to be eroneous, but if, in the progress of the trial, proofs are adduced supplying this deficiency, then the decision of the court, in permitting the advertisement to be read in evidence, is relieved from every appearance of objection. The deposition of Qrmsbec, made a part of the record in this case by the exception to the opinion of the court, permitting it to be read ás evidence on the trial, (which exception was not well taken, as we shall show,) proves conclusively that the advertisement was the act of the defendants. The first error assigned is not well taken..

The second and third errorf aro similar, and may be disposed of together. The plaintiff in error assume, that the District Court erred, in permitting two contracts, one between Strong,'plaintiff below, and Calvin Frink, and the other between the said Strong and William Longdo, to be read as evidence on the trial.- It is sufficient for the court to say, that the contracts referred to are not made a part of the record in this case by the bill of exceptions, and that the record presents nothing that will enable us to decide the points raised. Therefore, they are dismissed without further comment.

The fourth error assigned against the admission of the deposition of Thomas J. Ormsbee, is not apparent to tho court. The rules interrogatories and cross interrogatories, choice of commissioners by the parties, commission, taking of the deposition, certifying, sealing up, and directing the same, arc all unexceptionable. There were two points raised in tho arguments of the error assigned: 1. The deposition was returned some two months after it was taken. 2. It was delivered by the plaintiff in tho action into the District Court, on the second day of tho term at which the causo was tried, only four days before the trial. There is no rule of court orof law, which limits the time of returning a deposition into court, or directs by whom or bow it shall bo conveyed. If a deposition is properly taken, certified, sealed up, directed, and the matter thereof is legal and proper evidence in the case, and it is ready in court before the trial, there certainly can exist no reason in law why it should not be read as evidence. Wo consider these to be the requisites of a legal and adrnissable deposition of a witness residing out of the Territory, under the law and rules of court. 1. Tho entry of a proper rule fora commission. 2. Due notice thereof to (he opposite party, his agent or attorney. 3. The issuing of a commission under the rule in due form by the clerk, under seal,directed to the commissioners named, accompanied by a certified copy of all the interrogatories on file with tho names of the witnesses to be examined, and a copy of the first, fifth, and sixth rules on the subject of depositions. 4. A compliance of the commissioners with the said fifth and sixth rules in taking the deposition and certifying the same. 5. A compliance with tho said 1st rule in scaling up and directing the same; And 6th. That the matter thereof be legal and pertinent evidence on the issue in the case. Ormsboe’s deposition, by applying this test, is free from exception, and tho District Court did not err in permitting it to be read as evidence on the trial.

The fifth error assigned: “That the court erred in refusing to instruct the jury on the first point submitted by defendants.” The first instruction asked is: “ If the jury believe that there is not proof óf a contract between the plaintiff and defendants to carry tho goods in question, other than the general advertisement to the public, then the plaintiff cannot recover.” In deciding this question, wc must consider the nature and extent of the undertaking of the defendants as applicable to the instruction asked. The definition of “ common carriers” given, affords an easy solution of the question. “A common carrier is one who undertakes for hire or revv.ard, to transport the goods of such as choose to employ him, from place to place.” This is a general undertaking and embraces every one in the community,and to make it particular as an undertaking with a single individual, it is only necessary that he should apply with such goods as the common carrier lias undertaken to transport, in condition to be transported, at the place designated, to have the goods carried on the terms proposed in lire undertaking; then the contract becomes identical with the person then applying, and it requires no other special contract between (be parties, to subject the common carrier to all legal liabilities as such to tho person applying; Allen vs. Sewell, 1 Wendell, 237; Bank of Orange vs. Brown, 3 Wendell, 158. The District Court decided correctly in refusing the instruction.

Sixth error assigned: “ The court erred in refusing to instruct on tho second point submitted by defendants.” The second instruction asked is: “If the jury believe that there is notpvoofof any delivery of the goods in question,by the plaintiff or bis agent to the defendents,and an acceptance by the defendants of said goods,, then tho plaintiff cannot recover.”

This instruction seems to have contemplated a different cause-of action than that set up in the plaintiff’s declaration. This would have been a proper instruction in substance, if the plaintiff bad sought to recover, for negligence in carrying, or a failure to complete the carrying and delivery. This action is brought to recover damages for an absolute refusal to receive and carry; for a violation in leinine of tho undertaking of the defendants.— It cannot bo questioned that common carriers are liable for refusing to carry, when properly requested, as well as for negligent carrying, or failure to carry, after the freights have been delivered to them; 2 Show. 328, Jackson vs. Rodgers. Chief Justice Jef-fries held, “ that the action Is maintainable as well, as it is against an inn-keeper for refusing a guest, or a smith on tho road, who refuses to shoe a horse, being tendered satisfaction. The sama opinion is held by Chief Justice Holt in Boson vs. Sandford and others, 1 Show. 104. These opinions are sustained by various decisions referred to in tho cases cited. To-insist that there should be proof, delivery and acceptance, when the gist of the action is an absolute refusal to receive and carry, appears to the court to be entirely against the law and reason. The District Court was correct in refusing the instruction.

Seventh error assigned: “The court erred in refusing to instruct on the third point submitted by defendants.” The third instruction asked is: “If tho jury believe from tho evidence, the goods in question remained in possession of the agent of the plaintiff, and.nover were in the possession of the defendants as carriers, then the plaintiff cannot recover.” It is so apparent that it seems scarcely necessary for the court to remark, that tho reasoning and authority which disposes of the second instruction, apply equally to this. If our opinion is sound on that, we must concur with the District Court in the propriety of refusing this also.

Eighth error assigned: “ The court erred in refusing to instruct on the fourth point submitted by defendants.” The fourth instruction asked is: “If the jury believed from tho evidence, tho goods in question were deposited by the plaintiff or his agent in the ware house of Bruce, a third person, and that Bruce had a lien of charges on said goods, the defendants were not bound to carry them in the absence of a special contract, unless the plaintiff show, that said lien for charges was previously discharged, and cannot recover.’5 This instruction also grows out of a misapprehension of the plaintiff’s true cause of action. Under a different state of case averred by the plaintiff and raised in the testimony, this instruction might have boon proper. Considering tho true cause of action and the facts presented on the record, it would not have been a proper instruction. If no other reason existed, the one assigned by the court was sufficient: “Because the supposition of charges is against the evidence in the case.” The rale is, that a refusal to instruct on abstract principles of law, not presented by the record, nor by the facts in the case, is not error, however correct the principle, applied to a proper case. Without claiming that the court should respond to the facts in a case, it must necessarily, respond so far as to decide, whether a principle' of law is raised by tho facts, that tho case may not be embarrassed by matters entirely foreign. If the charge had been given, would the result have been different, presuming that no other than legal evidence was produced at the trial? Ormsbee’s deposition is the only evidence presented in the record for the inspection of this court; from this evidence, with the instruction, no other finding of the jury could have resulted. The District Court properly refused the instruction.

The ninth error assigned: “ The court refused to instruct on the fifth point submitted by defendants.” The fifth instruction asked is: “If the jury believe, from the evidence, the defendants assumed to carry the goods in question for a certain price, and the plaintiff has not shown a compliance with the terms of such assumed contract, by tendering or paying said price, then the plaintiff cannot recovei.” The court refused to give the instruction, and referred to the evidence in the deposition. This instruction is like the one just disposed of, upon which we have expressed an opinion.

The tenth error assigned: “The court erred in refusing to instruct on the sixth point submitted by the defendants.” The sixth instruction asked for is: “If the jury believe from the evidence, that the defendants did not assume to carry the goods in question, but merely neglected and refused to carry the said goods, the defendants are not liable under a general advertisement to carry for the public, and the plaintiff cannot recover.” We consider this ground of error, disposed of, by our opinion on the first instruction asked for by tbs defendants below, and will add nothing further to what is there laid down.

The eleventh error assigned: “ The court erred in refusing to instruct on the seventh point submitted by the defendants.” The seventh instruction asked is: “If the jury believe from the evidence that no freight boats passed' up Fox River after the plaintiff’s goods were deposited in Bruce’s warehouse and not in the possession of the defendants, then the plaintiff cannot recover.” Admit that the facts were as assumed in the instruction,they would not amount to a defence, oven in a case to which they might apply. That boats could not possibly pass up Fox River at the time of the request made by tire plaintiff, for causes entirely out of the control of the defendants, would excuso them for refusing to carry. The fact that they did not pass up, is a very different thing, and more allied to the plaintiff’s cause of action, than to the defence. The court properly refused the instruction.

The twelfth error assigned: “ The court erred¿n refusing to instruct on the eighth point submitted by defendants.” The eighth instruction asked is: “ If the jury believe from the evidence, that there was no special contract to carry the goods in question, and no delivery of the same to the defendants by thú plaintiff, and that there was, only a qualified promise to carry the same if the defendants were able to do so, then the plaintiff cannot recover on an allcdgcd breach of contract mido to the public."'’ There arc three distinct matters embraced in this instruction: — ■ No special contract-, no delivery; and a qualified promise to carry. The two former have been- disposed of against the error assigned, and the latter branch of the instruction was given as asked, with the remark by the court, that the facts show a different state of case. The language of the court in the instruction, “ if there were only a qualified promise to convey the goods, the plaintiff cannot recover on a general promise,” fixes, the character of the instruction, and show conclusively, that the court intended, the jury should respond to the facts, to which the principle of law was applicable: And the intimation in this instance, does not infringe the rule, in its most rigorous sense, that the court should respond to the law, and the jury to the facts.

Jacksok and Coiliks, for plf’ts in error.

Bsraw and Whitow for def’t in error.

The thirteenth error assigned: “ The court erred in refusing to instruct on the ninth point submitted by defendants.” The ninth instruction asked is: “ The court is requested to instruct the jury, to throw out of their consideration, all evidence proving a special contract of the defendants with the plaintiff, in relation to the carriage of the goods in question, ns the plaintiff has not al-ledged in his declaration, any such contract with him.” The court refused so to instruct,rcmaiking: “as the law,on the undertaking of the defendants as set forth in their advertisement, implies a contract; and as the court supposes, from remarks,made on the deposition of Orrnsbce, objecting to the same, for the reason that it was evidence of a special contract, that the instruction asked for is to rebut or reject that evidence.” The rule is, that a deposition or witness should be objected to at the time' of offering to read the deposition or swear the witness. , If once admitted, the court cannot take either from the jury by instruction. The court may instruct the jury to disregard evidence or testimony, on the ground of interest developed on the trial. The court properly refused the instruction.

It is the opinion of this court, that the judgment of the District Court of Dane county be affirmed with costs.


source: Caselaw Access Project

author: Judge Mimer;

license: Public Domain

text:
    BENJAMIN FOWLER, pl'ff in error, vs. JULIUS COLTON, def't in error,

    I V Error to Hacine counlii. )

    A notice of special matter to be giren in evidence, filed with the plea of 'general issstie, must contain all the substantial matter of a special plea. In actions upon contracts, it is sufficient if it contains such a statement of special matter as will prevent the plaintiff from being taken by surprise at the trial.
    In actions of slander, the notice of special matter in justification, must he as precise and certain as a special plea of justification.
    As there is no form prescribed for a notice, its sufficiency must depend, in some degree, upon the peculiar circumstances of each case.
    As a notice is not technically a part of the record, it is not proper to dispose of it by demurrer; it should contain all the facts necessary to sustain it, if in a plea, against a general demurrer; the correct practice is to exclude the evidence offered, if the notice is insufficient.
    The refusal of the court to allow it notice to ho amended on the trial, is not error; the statute of amendments is not obligatory on the courts, but only gives them the discretion to allow or disallow amendments to he made, and the allowance or disallowance of amendments, resting in the discretion of the court, is not the subject oí error.
    An opinion of the court of a fact in the case, of the weight of testimony, or the character of a witness, is not binding upon the jury^and is not error.
    Where each of the jurors sets down the amount of damages which he is willing to allow the plaintiff, anti the jury divide the aggregate ot the. sums by Ti, and agree upon the quotient ns the amount of their verdict, it is not such misconduct as would entitle the defendant to a new trial, unless it is shown that the jury acted corruptly, or that they previously hound themselves to adhere to the result.
    Questions of law, arising upon motions for now trials, are legitimate subjects of inquiry in the Supremo Court.
    Where the rules of the District Court require all depositions intended to be rend on the consideration of all motions to he taken on notice to the adverse party, the court may reject ex parte affidavits offered in support of a motion for y new trial, and the court is not bound to hear witnesses on the stand in support of the motion.
    This was an action of slander commenced by Colton against Fowler in the Racine District Court. The declaration contained three counts: The first count a.liedged that the defendant had charged the plaintiff with theft in stealing a bee hive and honey belonging to one Lucas, and a hag of flour belonging to the defendant: The second count was for charging (lie plaintiff with theft in stealing a hive of bees and honey of one Daniel Lucas: And the third count was for words charging the plaintiff with theft in stealing grain and flour from See’s mill, and stealing Lucas’ bee hiye. The slanderous words were variously laid in the declaration, to which the defendant pleaded the general issue, and gave notice of special matter in justification. The notice will be found in the opinion of the court.
    Upon the trial, one Isaac Goodpasture was sworn and examined as a witness for the plaintiff to prove the speaking of the slanderous words; he was afterwards called by the defendant, and testified that the plaintiff’s character was bad.
    After the plaintiff had closed his testimony, the defendant offered to justify by proving the truth of the words spoken, which was objected to by the plaintiff on the ground of the insufficiency of the notice. The court sustained the objection, and decided that the notice was not sufficient. The defendant then asked leave to amend the notice, which was refused by the court; to both of which decisions the defendant excepted. . .
    Among the instructions given by the court, to jury, was the following: “In considering character, you will also consider the character of the witnesses, for and against, and give their testimony such weight as they may deserve. Such a man as Good-pasture, when called upon this subject, will not be entitled to much weight.” To which instruction the defendant excepted.
    The jury returned a verdict in favor of the plaintiff for ‡375 in damages; upon which the defendant moved for a new trial, on the grounds, among other things: that the court erred in instructing the jury that the evidence of Goodpasture was not entitled to much weight; that the court erred in rejecting the evidence offered by the defendant in justification; and that the court erred in refusing to allow the defendant to amend his notice of special matter: and also, “ that the jury erred in first marking damages for the plaintiff at sums varying from one dollar to one thousand dollars, and then split the difference, and returned a verdict from computation,' rather than from law, evidence, or their own judgments.”
    To sustain the last ground, the defendant offered to prove by the affidavit of H. N, Wells, that the jury, in ascertaining the amount of damages in the case, marked the sums which they would allow, and then added those sums together, and divided the whole by twelve, and took the quotient as their verdict, and that these sums, so marked, varied from fifty dollars to one thousand dollars; and if the affidavit should not bo admissable, the defendant offered to prove the facts by a witness on the stand. The Court refused to receive the affidavit because it had been taken without notice to the adverse party, and also refused to hear witnesses on the stand in support of the motion.

      On argument, the Court overruled the motion for a new trial, and rendered judgment on the verdict. To reverse this judgment, Fowler sued out a writ of error, and has brought the cause into this court.
    Wells, for pi’ff in error,
    declined opening the argument;
    Marshall M. Strong, for clef't in error:
    The first question in order arises upon the decision of the coutt as to the insufficiency of the notice. A notice generally, should contain all the matter necessary to be stated in a plea, and set it out with the same certainty. There are two leading cases in New Yoik upon this pciint. The first is in 13 John.Rep. 475; these-cond in 20 John. Rep. 740. In the first case it is laid down as the rule to test the sufficiency Of a notice; to consider, whether if it were embodied in the form of a special pica, it would be good on general demurrer; in the second case, the rule is stated to be, that if the notice is so certain that the plaintiff is not taken by surprise, it is sufficient. Chancellor Kent, in the latter case, refers to 8 John. Rep. 457; but on examination of the case referred to, it will be seen that it does sustain the latter rule laid down by the court. The rule established in the case, in 13 John, is affirm* ed in 8 Wendell, 572; and again in 24 Wendell, 357. But apply the test of either of the cases to this notice, and. it cannot be sustained.
    The first objection to the notice is, that it does not confess the facts alledged in the declaration, it is a rule in pleading, that whenever matter in justification or avoidance is pleaded, the facts to be justified or avoided must be confessed. 3 Cotven, 370, Root vs. King, 7 Cotven, 633. This notice docs not confess the speaking of the slanderous words.
    The second objection is, that it professes to answer the whole declaration, and answers only a part of it. Divers thefts are al-ledged in the declaration to have been charged by the defendant against the plaintiff, and the notice only goes to justify a part of them. The justification is therefore insufficient. 3 Chilty, 1003. 2 Wendell, 541. Archbold, 39. 2 Hawk. 324.
    The third objection is, that the notice does not state the price or value of the property stolen. This ought to be stated to each article. Archbold, 43.
    The fourth objection is, that the notice does not answer the whole declaration. The rule is, that the justification in an action of slander, must be as broad as the charges in the declaration; £Jiar-kie on Slander, 839, 342. Tlie objections to the notice are so ob - vious, and so fully sustained by authority, that it would seem that; the correctness of the decision of the District Court cannot be questioned.
    The application for leave to amend the notice, was addressed to the discretion of the court. It was made pending the trial, and after the plaintiff had closed his testimony. Sound discretion could not allow the amendment to be made at that time. It would have been the same thing as to allow a plea of justification to be filed at that stage of the trial, and so far as the plaintiff is concerned, the court might as well allow the defendant to justify without plea or notice. Besides, a refusal to allow an amendment is not error. The statute of amendments leaves the whole matter to the discretion of the court, and a case cannot be found where a refusal was decided to be error.
    The exception to the charge of the court is not well taken. Whatever the judge may state as his opinion of facts, it is not error, if he leaves the facts to the jury to determine. Graham on New Trials, 311,312,317,319.
    The rules of the District Court require all affidavits or depositions in support of a motion to be taken on notice to the adverse party. The affidavit for a new trial was therefore properly rejected. The practice of hearing witnesses on the stand in such a case would be without precedent or authority. But if the defendant had proven all that he offered to prove, it would not have established any legal ground for a new trial. It is not improper for the jury to figure, cast up and divide as much as they choose to do. To make it improper, they must have agreed beforehand to be bound by the result of the calculation. Graham on New Trials, 106, 107, 108, 109.
    There was no legal ground for granting a new trial, but if this court should think that if the application wore here made, the new trial would be granted, still the refusal of the District Court to grant it, is not error. 5 Wendell, 277. 5 Cranch, 11, 4 Wheat-on, 220.
    Wells, in reply:
    The notice in this case is as full and perfect as any form that can be found in the books. The authorities that have been read, showing the certainty required in special pleas and indictments is not applicable here. The object of the legislature in allowing a notice of special matter to be filed with the plea of general issue,was to simplify pleading and defence. If it must be as full and certain as a special plea, the law is of no utility. It is not necessary that it should admit the speaking of the words, and none of the authorities that have been cited require that it should. This notice states that the defendant will prove that the words charged in the declaration are true. This is sufficient; it fully apprizes the plaintiff of the defence intended to be set up on the trial. It is as good as a notice of payment in a suit on a promissory note. The decision in 8- Wendell does not support the position assumed; it only requires that the notice should contain the ’matter that would be necessary in a plea, but does not require the form. The true rule, and one sustained by authority is, that where the notice sufficiently apprizes the plaintiff of the defence intended to be relied on, it is all that is necessary. In 8 John. Rep. 475, is the form of a notice which was sustained by the court, which is not so. full and perfect as the one in this case, and the decision there shows that the certainty that is necessary in an indictment ora special plea is not required. See also, 11 John. Rep. 38. 20 John. Rop. 775.
    If the rule be, that the notice must be as full and certain as a special plea, and its sufficiency is to be tested by comparing it with a special pica, then the plaintiff ought to have demurred to it. This would have brought the question before the court in time, and if it was found to be defective, it might have been amended and the party would not have been shut out from his defence.
    After the decision against the notice, the court ought to have allowed it to be amended. The statute of amendments is peremptory, and not discretionary. The word may means shall, and the only discretion that the court has in the matter is, to determine whether the amendment proposed is for the furtherance of justice. If the refusal of the court below was an abuse of sound discretionary power, then the judgment ought to be reversed.
    We contend, that the District Court ericd in .instructing the jury that the testimony of Goodpasture was entitled to very little weight. Goodpasture was the plaintiff’s witness, and by introducing him he said to the jury that he was a man of character and entitled to belief. He had no right to impeach him, and no attempt was made to do it, except by the court. This witness proved for the plaintiff what was expected of him; he afterwards* when again called, proved the plaintiff’s character to be bad. Again: the court had no right to charge the jury to judge of the testimony by the character of the witnesses, when none of there had been impeached. Character is always held to be good until it is proven to be bad. 5 Wendell, 195. This is a presumption of law that is binding on both courts and juries.
    The court below rejected the affidavit in support of the motion for a new trial because it had been taken without notice. There is no authority that can be found, that requires notice in suclt case. The rules of practice do not require it, and it is error in the court to require it. Graham on New Trials,5,6,7; id, 104,105, 108.
   Opinion of the Court, by

Judge Mimer;

This was an action of slander in the District Court of Racine county, in which Colton was plaintiff and Fowler defendant. The defendant pleaded the general issue, and filed notice of special matter to be given in evidence on the trial in justification, as follows: “The defendant will give in evidence, under the general issue, on the trial of this cause, that the plaintiff, before the speaking and publishing of the said several words by the said defendant, of and concerning the said plaintiff, as in the said several counts in the said declaration mentioned, to wit: on or before the twenty-fifth day of November, eighteen hundred and forty, to wit: at Racine county aforesaid, did feloniously steal, hike, and carry away, certain goods and chattels, to wit: one hive of bees and the honey, of one Daniel Lucas, and also one bag of flour, of him, the said defendant, as spoken by the said defendant, and charged by the said plaintiff in his said declaration, to wit: of the value of fifty dollars, all of which was contrary to the form of the statute in such case made and provided; wherefore the said defendant, if ho spoke the said slanderous words, in the said declaration menliowed, was justified and had a right, afterwards, to wit: on thoSStli day of November, 1840, to wit: at Racine county, aforesaid, to speak and publish the said words of and concerning the said plainlifij for the cause aforesaid.”

After the plaintiff had closed his evidence on the trial, the defendant offered evidence in justification, which was objected to, on the ground of the insufficiency and immateriality of the notice, which objection was sustained by the court, and the testimony rejected. This is the first error assigned.

The notice is allowed to be filed with the general issue in case of tho defendant. He may or ho may not rely upon it, and the plaintiff is bound, notwithstanding4he notice, to prove the facts set forth in the declaration; Vaughan vs. Havens, 8 John, 109. Generally, a notice must contain, in substance, all the substantial matter of a special plea, but is not required to be in the form. In actions upon contract, a notice is sufficient if it contain such a statement of special matter to be given in evidence at the trial as may prevent the plaintiff from being taken by surprise. The statute has prescribed no form, and each case must, in some degree, depend upon its peculiar circumstances, and upon tho application of sound discretion in the court at the trial; Chamberlin vs. Gorham, 20 John. 749. But the general rule undoubtedly is, that the notice should contain all the facts necessary to sustain a plea against a general demurrer, or at least a motion for a judgment non ob-stante veredicto-, Bishop and Medbury vs. Earl, 17 Wendell, 316. Although the notice is not required to be in the strict technical form of a pica, it must contain all the facts necessary to be stated in a special plea; Sheppard vs. Merrill, 14 John. 475. And it must state truly, the facts intended to be given in evidence; Kane vs. Sawyer, 14 John. 89. It must also be so particular as to enable the plaintiff to come prepared to meet the facts stated therein; Chamberlin vs. Gorham, 20 John. 744. In slander, a notice of justification must be as precise and certain as a special plea of justification, Mitchell vs. Borden, 8 Wendell, 570. In a special plea, the felony must be charged with certainty, and tho party must aver the speaking of the words, and expressly and distinctly confess the speaking. The pica or notice of the truth in justification admits the malice, and puts the naked truth in issue; Root vs. King, 7 Cowen, 613; Matson vs. Beech, 5 Cowen, 499, And notice of special matter in slander should bo drawn and proven "with great particularity; Woodbeck vs. Keller, 6 Cowen, 118. For charging the plaintiff with having sworn false, if the. defendant intends to justify under a notice subjoined to his plea, lie must give notice that he will prove, not only that the plaintiff swore false, but that he swore wilfully and corruptly false; Mitchell vs. Borden, 8 Wendell, 570. MKinley vs. Rob, 20 John. 351. From this array of authority, it must be apparent that the notice filed in this case, was not sufficient. It is certain that it could not be sustained against a general demurrer, which is made the test by the So-prorne Court of New York. It is coa fused, uncertain, and; argumentative, Tho plaintiff could not be expected to bo prepared to meet evidence in justification on this notice; and if the defendant’s offer bad not been overruled, tho plaintiff must have been taken by surprise.

As a notice of special matter is not, technically, a part of the record, it is not proper to dispose of it by demurrer, although it should contain all the facts necessary to sustain it, if a plea, against a general demurrer. It is the practice to exclude evidence for insufficiency of the notice. It is the business of counsel to draw it correctly, at the risk of a rejection of the evidence.

After the testimony offered by defendant had been rejected, the defendant moved for leave to amend his notice, which was not granted by the court, and this is the subject of the second error assigned. The notice then on file had been allowed to be amended, according to the rules of the court, before the trial. Even if the refusal of this second amendment were the subject of error, we could not say that the court committed any error in this particular, for every indulgence was extended to the defendant that should reasonably be desired. The act concerning amendments provides, that “ the court in which any action shall be ponding, shall have power to amend any process, pleading, or proceeding.”This is not obligatory upon the court, but merely discretionary for the furtherance of justice. Now it is well settled, that the allowance or disallowance of amendments, when it is a matter of discretion, is not the subject of error. Mandeville vs. Wilson, 5 Cranch, 15. Marine Ins. Co. vs. Hodgson, 6 Cranch, 206. Chirac vs. Reinicker, 11 Wheaton, 280. Sheely vs. Mandeville, 6 Cranch, 253. Walden vs. Craig, 9 Wheaton, 576. Ordroneaux vs. Prady, 6 Sergt. &. Rawle, 510. Clymer vs. Thomas, 7 Sergt. & Rawle, 180.

The Court, iu the charge to the jury, remarked, that in considering tho character of tho plaintiff, you will also consider the character of the witnesses, for and against, and give their testimony such weight as it may deserve. Such a witness as Isaac Goodpasture, when called upon this subject, will not be entitled to much weight.” In this, error is alledged, but there is none apparent. This was an opinion of the court, not in the least binding on tho jury. An opinion of a fact, not given as binding on the jury, is not error; Porter vs. M'Ilroy, 4 Sergt. & Rawle, 436. And it must clearly appear that the jury were excluded from finding for themselves; Riddle vs. Murphy, 7 Sergt. & Rawle, 230. A court may give an opinion to a jury of the weight of evidence; Dunlap vs. Patterson, 5 Cowen, 243. Ex parte Baily, 2 Cowen, 479. And an opinion of the judge concerning facts, is not the subject of error; Burd vs. Donsdale, 2 Binney, 80; Long vs. Ramsay, 1 S. &. R. 72, The court has a right, and it is its duty, to explain to the jury that they are the judges of the facts in a case, and it is their province to give to the testimony of the witnesses its proper and legitimate weight and importance. The court in this case, did not go further than the Supreme Court of Pennsylvania in the case of Burr vs. Sim, 4 Wharton, 156, where it was decided that it was not error in a judge to tell a jury that a witness was a “ very willing witness,” and that “ very little confidence was to be placed in her testimony;” nor to remark upon the strength or absence of evidence, or to suggest presumptions arising out of the relationship or conduct of one of the parties.

The defendant moved for a new trial on the alledged ground of misconduct of the jury in agreeing upon their verdict; and, at the argument of this motion, he offered to prove that the jury, in ascertaining the amount of damages, marked the sums which they would allow, and then added the sums so marked together, and divided the whole by twelve and took the quotient as their verdict, which they returned into court as their verdict; that the sums so marked varied from fifty dollars to one thousand dollars; and the defendant offers the affidavit of H. N. Wells to prove the fact, or if the affidavit is not admissible, a witness is offered to prove them on the stand.” It appears that this offer was presented at the argument of the motion for a new trial, when the Court made this entry: The motion for a new trial being taken up for consideration, this offer is overruled.” The affidavit referred to did not appear to have been taken on notice. It is the practice in the third district to adhere to the rule requiring all depositions offered to be read on the argument and consideration of .all motions, to be taken on notice to the opposite party; and such being the rule, we will not say it was wrong to reject the offer. The court is not bound to hear a witness on the stand at the argument of a motion, particularly as it is not the practice. But even if the testimony had been perfect, and the witness competent to prove the facts contained in the offer, yet the court would have been right in overruling it. If the jury bad made up their verdict in the manner stated, there was no error. There is no allegation of corruptions in (ho jury. There is no averment that the jury previously bound themselves to adhere to the result; hut it is stated, merely,, that they did put down the amount each would allow, and did ascertain the quotient, which they agreed upon as their verdict. After the members of the jury argue the question, and agree to find for the plaintiff’, in torts and other cases where there is no ascertained demand, it. can seldom happen that they can or will agree at once upon a precise sum to he given in damages. There will, necessarily, arise a variety of opinions, and mutual concessions must be expected. A middle sum may in many cases be a good rule; and though it is possible this mode may be sometimes abused by a designing juryman fixing upon an extravagantly high or a very low sum, yet, unless such abuse appears, the fraudulent design will not be presumed. It is immaterial whether they come to thoir result upon paper, or in the course of conversation, so that they agree, after the result is ascertained, to make that result their verdict; Copperthwaite vs. Jones, 2 Dallas, 55. Shobe vs. Bell, 1 Randolph, 39. Grinnell vs. Phelps, 1 Mass. Rep. 541. Dana vs. Tucker, 4 John. 487.

■Wells, for pl’ff in error,

MaRshall M. SritoNG, for def’t in error,

The Supremo Court of the United States will not take cognizance of questions of law which may arise in the circuit or district courts upon motions for a new trial, as it is a motion addressed to their discretion; Woods vs. Young, 4 Cranch, 237. Henderson vs. Moore, 5 Cranch, 11. Barr vs. Gratz, 4 Wheat. 213; but under our statute it is a legitimate subject of inquiry in this court. It will appear that we have not hesitated to express an opinion upon the reason allcdged for a new trial in this case, although it was not presented to the District Court in such a manner that it might have been considered and passed upon there as required by the practice; Houghton vs. Stone, 4 Wendell, 175; yet to settle ihe practice in regard to the conduct of jurors in this particular, we have consented to consider the subject as properly presented.

Judgment affirmed with costs.


author: Judge Mii/ler:

text:
    GIDEON LOW, plaintiff in error, vs. HENRY MERRILL, defendant in error,

    ) > Error to Dane county.

    The date of a promissory note is material, and if altered without the maker’s consent, the note is vitiated, and it makes no difference whether the time of payment is accelerated or extended by the alteration.
    If a promissory note appears upon its face to have been altered, it is for the hold.er to prove, and not for the maker to disprove that it was altered under circumstances that will make it available.
    It is incumbent on the plaintiff to account for a suspicious form or obvious alteration of a note, and unless he adduces evidence to explain the alteration, it is proper for the jury to find for the defendant.
    The identity of the note declared upon, is a question for the jury, and testimony upon that subject, and to explain any alteration or suspicious appearance of the note should be received.
    If a note has been altered in a material part,it is inadmissible in evidence for any purpose, unless to defeat a claim on the ground of fraud, or to establish usury, or to convict a party of a crime; it cannot be received as evidence on the money counts.
    Where the promissory note offered in evidence, appears on its face to have been altered, and the defendant has not denied its execution under oath, still the plaintiff must prove that the alteration was made with the consent of the defendant, before it can be read to the jury.
    Although the defendant does not deny the execution of the note under oath, he does not waive any other legal defence, and by his plea he puts in issue the identity of the note declared upon.
    This was an action of assumpsit, commenced by Merrill against Low in the Dane District Court.
    The declaration contained two counts upon two several promissory notes ; one for §1215 68, dated April 7th, 1842, and the other for $300, dated April 14th, 1838, payable ninety days after date. The defendant pleaded the general issue, but did not deny the execution of either of the notes under oath. At the trial of the cause, the plaintiff offered the following promissory note in support of one 'of the counts of his declaration:
    “§300. For value received, I promise to pay to Henry Merrill, or order, the sum of three hundred dollars with interest, ninety days after date.
    (Signed) “ G. LOW.”
    “ Fon Winnebago,
    [March 24, 1838.]
    “April 14, 1838.”
    It appeared on the face of the note, that the original date, March 24, 1838, had been marked wiíh a pon so as io be partly obliterated, and immediately under it was written, “ April 14, 1838.” The defendant objected to the note as evidence, unless the plaintiff should first prove that the date was altered before it was signed,or afterwards with the consontof the defendant. The court overruled the objection, and permitted the note to be read to the jury. The defendant then offered to prove that the note had been altered by tire plaintiff after it was signed and executed, without the consent of the defendant, but the court refused to permit him to prove these facts; to which decisions of the court, the defendant excepted. The jury returned a verdict in favor of the plaintiff for the amount of both notes and interest, upon which the court rendered judgment. To reverse this judgment. Low has prosecuted this writ of error.
    Abbott, for plt’ff in error:
    One of the notes.upon which the judgment in the court below was rendered, showed upon its face that it had been altered in i(3 date. It therefore became necessary for the plaintiff to prove that the alteration had been made with the consent of the defendant, before he could bo allowed to read it in evidence. Chitty on Bills, 212; Johnson vs. The Dulce of Marlborough,H Starkie’s Rep. 313; 5 Bing. 183.
    The alteration of a noto in a materia] part, without the consent of the maker-, invalidates the note; Chilly on Bills, 204; 1 Chitty on Plead. 213; Masters vs. Miller, 4 Tcnn. Rep. 350; 2 EL Bl. 141; 15 East. 29; 1 Taunt. 20; Bank of the United States, vs. Russels et als.; 3 Yeats’ Rep. 371; 3 Grand), 37.
    When a note has been thus altered in a material part; it is inadmissible in evidence for any purpose whatever in favor of the holder; Jardín vs Payne, 1 Barn. & Add. 617; 7 B. &. C., 416.
    Field, for def’t in error:
    The defendant should have denied the execution of the note under cath, before any proof can be required of the plaintiff. It has been said, that the signature being genuine, he could not do this. The statute does not require him to deny the signature,merely, but to deny that he executed such a note as is declared upon. The issue then would have been similar to the issue on a plea of non est factum, to a speciality. The plea of non est factum, does not deny he signature only, but the execution of the instrument in he form in which it is sued on; and it is a good plea where the sig-
      sature is genuine, if the instrument has been altered: The same principles apply to promissory notos, where there execution is required to be denied under oath. 1 Blackford, 67; 3 do 57.
    Our statute says that the instrument shall bo proof that it was so signed or executed, unless the signature or execution is denied under oath. What does this provision moan? Why, that anote purporting to have been executed by the defendants, shall be taken to have been so executed; that is, executed precisely asitappoars upon its face to have been done, and as it isdeclared upon, unless-the defence is made in the manner pointed out by the statute.
    Whiton, in reply:
    We contend, that the note having been altered in a material-part, is void; and that it is not an instrument that requires a denial under oath. The defendant is riot bound to disprove, by his own oath or other testimony, the validity of such a note. He cannot deny the signatuie under oath, for that is genuine, but still he has a right to the common law defences against it, which cannot be shut out from him by a proper construction of the statute.
   Opinion of the Court, by

Judge Mii/ler:

This was an action of assumpsit in the District Court of Dane-county, on t*o promissory uotes, given by Gideon Low, the defendant in said court, to Henry MoriJI, the plaintiff therein. The defendant pleaded tho general issue, but did not file an affidavit with his plea, denying the signature to or execution of said notes. When one of the notes was offered to be read in evidence to the jury,it appeared to have been altered in the date, thus: “March 14,1838,” had been first written as the date, and tho word “March” and the figures “ 14” were partly obliterated or defaced, and underneath tho first date, “April 14, 1833,” was written. The defendant then objected to the reading of the note so altcied, in evidence, unless the plaintiff showed that the said alteration had been made before the said note was signed and executed by the defendant, or afterwards with his permission; which objection was overruled by the court, and tho note allowed to be read in evidence.

The defendant then offered to prove that tho date of said note had been altered by the plaintiff, after it had been signed and executed, and without his consent or permission, which said offer of defendant was overruled by the court.

Errors are assigned upon the record, on these two orders of the District Court.

The declaration charges the note to have been given on the 14 th day of April, 1838, which the defendant by his plea denied. In every written instrument, the day laid is material and must be proved as laid when the action is brought on the instrument itself; 2 Peake, 19G. If the plaintiff had proven the note to have been given on the 14th of March, it would certainly not be the identical note the defendant had given as laid in the declaration. It is through the note the plaintiff has a right of action; and it is the only medium by which he can recover. The question raised by the issue was, whether or not the defendant promised in the form stated in the declaration; and the substance of the plea is, that according to that form he is not bound or did not promise.

It is conceded that the date of a note is material; and an alteration of the date is an alteration of a material part, which vitiates it, if done without the maker’s consent: Chitty on Bills, 204; Bank of the United States, vs. Russell and Brown, 3 Yeates, 391; Masters vs. Miller, 2 H. Black. 141. And the principle is the same whether the day of payment is thereby accelerated or extended; Stephens vs. Graham, 7 Sergt. & Rawle, 505. To insure the identity, and to prevent the substitution of one instrument for another, is the foundation of the rule, which is necessary to prevent all tampering with written instruments.

In Chitty on Bills, page 212, it is stated, “that with respect to bills and notes, and other negotiable securities, the rule has been laid down, namely, that if the instrument appear on its face to have been altered, it is for the holder to prove, and not for the maker to disprove, that it was altered under circumstances that will make it available.” Jt is incumbent on the plaintiff to account for a suspicious form or obvious alteration of a note, and unless the plaintiff adduces evidence to explain the alteration, it is proper for the jury to find for the defendants; Johnson vs. The Duke of Marlborough, 2 Starkie R. 363. The identity of the note is a question for the jury, and testimony upon that subject, and to explain any alteration or suspicions, should certainly be received; Bunker vs. Bleckwell, 2 J. C. 198; Buller’s N. P. 255; Marshall vs. Grugler, 10 Sergt. & Rawle, 164; Lewis vs. Payne, 8 Cowen, 71; Gibbs & Rich vs. Osborne, 2 Wend. 555; Stephens vs. Gorham, 7 Sergt. & Rawle, 505. And if a note has been altered in a material part, it is inadmissible in evidence for any available purpose whatever in favor of the holder, until the alteration is satisfactorily explained, unless to defeat a claim on the ground of fraud, or to establish usury, or convict a party of a crime. It cannot be received in evidence on the money counts; Chitty on Bills, 213, and the case there cited.

Abbott & Whiton, for plt’ff in error.

Field &. Botkin, for def5t in error.

It is provided in section 18 of the act concerning testimony and depositions, on page 250 of the Statutes, that “every written instrument purporting to have been signed or executed, by any person, shall be proof that it was so signed or executed, until the person by whom it purports to have been signed or executed shall deny the signature or execution of the same by his oath or affidavit: But this section shall not extend to instruments purporting to be signed or executed by any person who shall have died previous to the requirement of such proof.” This section merely dispenses with proof of the signature or execution of the instrument, unless the party shall deny the same under oath. It was intended for the convenience and relief of the plaintiff. The defendant did not deny the signature or execution by his oath or affidavit, but he did not thereby waive any other of his legal rights at the trial, but proof on the part of the plaintiff of the signature or execution. The note was in the hands of the payee when it was altered or supposed to have been altered, and it could not be presumed that, the defendant would be cognizant of a fraudulent or illegel alteration of his note before its presentation at the bar. Before then the plaintiff ought to have known its suspicious appearance and legal defects; and it was his duty to fortify himself on that point. The signature or execution of the note was not the question in this case, but its identity was made by the plea, an important question for the consideration of the jury.

It is the opinion of the Court that the District Court should have required the plaintiff to account for the alteration of the note, before he should have been permitted to read it in evidence, or have been entitled to a verdict upon it: And as defendant offered to prove more than by law he was required to do, there was error in rejecting his offer. I

Judgment reversed with costs.

Judge Irvin dissented from the opinion of the court.


author: Judge Ikvist:

text:
    GEORGE W. JONES, plaintiff in error, vs. DANIEL WEBSTER, defendant in error,

      ~i y Error to Grant county. ).
    An affidavit for an attachment which states the amount of the plaintiff’s demand to be “over and above the sum of fifty dollars,” doesnotsuffioient-Jy state the amount, to authorize the issuing of the writ.
    Jones sued out a writ of attachment against Webster in the Grant District Court. The affidavit was made by F. J. Dunn, attorney for the plaintiff, and stated: “The he, affiant, is the attorney of George W, Jones, and affiant further says, that he verily believes that Daniel Webster is indebted to said George W. Jones in a sum of money over and above the sum of fifty dollars, lawful money, and that said indebtedness arises out of, and is founded upon contraclin writing, styled in said contract,hi memorandum of agreement:’ Affiant further says that the said Daniel Webster is not a resident of Wisconsin Territory.” Satisfaction was indorsed upon the affidavit of the District Judge.
    At the March term, 1843, the defendant by his counsel, moved the court to quash the writ and dismiss the cause on the ground of the insufficiency of the affidavit: The court sustained the motion and dismissed the suit; to reverse which decision, Jones has prosecuted this writ of error.
    Duka’, for pl’ff in error:
    The court below quashed the writ and dismissed the case,because the amount and nature of the plaintiff’s demand were not sufficiently stated in the affidavit.
    The amount of the indebtedness cannot always be stated without compromising the affiint on a question of veracity. Where the damages are unliquidated, and cannot be liquidated except by the verdict of a jury, the plaintiff cannot swear to any precise sum, as the true amount of his just demand. In this case, the sum of fifty dollars and over, is stated to be due, which brings the case within the jurisdiction of the court, and entitles the plaintiff to the writ.
    The nature of the indebtedness is stated more particularly than the statute requires. It is stated to be founded on a written contract, styled % memoiandum of agreement.’ This is all that is necessary to he stated.
    Coluins, for def’t in error:
    One of the principal reasons for quashing the writ is, that the amount of the'plaintiff’s demand is not -sufficiently stated in the affidavit; and it is said, that in sustaining this ground, the District Court erred. The statute is as positive in this requirement as any other, to authorize the writ; and if the statute must be strictly pursued, os this Court has repeatedly said it must, this affidavit cannot be sustained. A reason for requiring the amount to be stated, is that the officer may not take more property by the writ, than will be sufficient to secure the plaintiff’s demand. If the demand is so uncertain or doubtful that it cannot bo stated at all, the plaintiff is not entitled to the writ. The statute was not intended for the recovery in this way, of damages that cannot be liquidated.
    The affidavit as to the nature of the demand, is defective.— True, it states that it arises upon a contract in writing, but what sort of a contract it is, is left to conjecture. It may be a contract void at law, and upon which a recovery cannot be had. The nature of the contract should be so far slated, that (he court can see that it may be the legal foundation of the demand.
    The whole ground stated, except the non-rcsidence of the defendant, is stated as a mere matter of belief. This is not sufficient under lire statute, unless the facts and circumstances upon which the belief is founded, are also stated, and these facts and eircumstances must be such as to warrant the belief
    Burnett,in continuation:
    The statute requires that the facts and circumstances necessary to entitle the party to a writ of attachment must be proven to the satisfaction of the judge or commissioner. It is not one fact or another that must be so proven, but every substantive matter that the law makes necessary to entitle the party to the writ, must he made to appear affirmatively by proof, before the writ issues. — ■ The first fact that must be thus made to appear is, that the defendant is indebted to the plaintiff, then that the indebtedness atises out of, is founded upon, or sounding in contract, or upon a judgment or decree of a court, and then the nature and amount of the plaintiff’s demand. In this case, there is no sum stated as the amount of the plaintiff’s demand, and it is useless (o argue that point; but the fact of any indebtedness at all, is only stated as a.maiter of belief of the affiant, and neither fact nor circumstance is given as the foundation of the belief This is not sufficient. This court said, in the case of Morrison vs, Ream, decided at the last term, that “the facts necessary to entitle a party to the writ of attachment, must be proven to the satisfaction of judge or commissioner. 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 affi-ant, will do.” Again: “The officer must be satisfied, and he must be so satisfied from proof of facts and circumstances, not from the belief of any one.” And in relation to the charge of fraud, the Court in the same case says: “The officer should have at least such strong presumptive proof, as, being uncontradicted and unexplained, would induce him to convict the defendant of the charge if he were on trial before a petit jury.” Apply the principles of that opinion to this case, and the affidavit amounts to nothing. The same principle which the Court applied to the charge of fraud, would require that the proof of the indebtedness, its nature and amount, should be of such a strong and presumptive character, that uncontradicted or unexplained, would be sufficient to induce the officer to find and fix a verdict in favor of the plaintiff, if the case were on trial before a petit jury.
    The statute requires the affidavit to be made by the plaintiff or some credible witness. A witness in the legal sense, is one who sees and knows the things of which he testifies. The witness meant by the statute should have personal knowledge of the facts and circumstances which he states, and it should appear in the affidavit in some way, that he is such a witness. The vague belief of a third person, who knows nothing of the facts and circumstances, is not as good as the belief of the plaintiff who does know, and this court has said that the belief of no one will do.
    The nature of the indebtedness must be stated. It is not sufficient that it is upon a contract in writing. Take the converse, and suppose that it is stated to be upon a contract notin writing, would it be sufficient? Certainly not. There is almost as great a variety of contracts, as to their nature, in writing as by parol.— If the legislature had intended such a statement to be sufficient, the statute would have required the affidavit simply to show whether the contract was in writing or not.

      Draw,in reply;
    Tho slating the demand to be upon contract, and that it was an instrument of writing styled a memorandum of agreement, is sufficient as to (he nature of the demand, and it was not necessary to set out tho terms and conditions of the agreement.' .The statute does not require such' particularity.
    It is important to inquire, what are tho facts and circumstances' necessary to bo stated? There is a marked difference between fact and circumstance; between positive knowledge and mere.belief. Where a matter of fact is positively known and positively staled, there is no belief upon the subject, and neither belief of the reason for it, is necessary to be stated.
   Opinion of the Court, by

Judge Ikvist:

This case came up on error to the District Court of Grant county, and is a proceeding in attachment.

The writ of attachment was sued out ón the affidavit of Francis J. Dunn in these words: “ That he, affiant is the attorney of George W. Jones, and affiant further says,- that he verily believes that Daniel Webster is indebted to said George W. Jones in a sum of money overand above the sum of fifty dollars lawful money, and that said indebtedness arises out of and is founded upon contract in writing, styled in said contract,a memorandum of agreement; affimt further says that the said Daniel Webster is not a resident of Wisconsin Territory.’'’ On this affidavit, the Judge of the district indorsed his satisfaction of the truth of the facts therein stated.

At the March term of said court for 1843, the defendant, by his counsel, moved the court to quash the writ and dismiss the cause for the following reasons, viz: “ 1. Because of insufficiency of the affidavit: 1. In that said affidavit was not made by plaintiff’, av a credible witness, but by the attorney of said plaintiff, who is not a witness in contemplation of law: 2. In that the amount of plaintiff’s demand is not set forth: And 3. In that tho circumstances upon which the belief of the facts set forth is founded, are not stated.

2. Because it appears by the amended return of the sheriff, that in serving tho writ in said cause, he did not enter upon the premises attached, in order to attach and appraise them:” Which motion was sustained by the District Court, and to which decision ■of the court, the plaintiff by his attorney, excepted; and for error, assigns (lio following causes, viz: “ 1. Tho court erred in sustaining the second and third reasons of tho defendant in his motion to quash the writ and dismiss the proceedings herein. 2. Tho court erred in quashing tho writ and dismissing the procoeeings heroin.”

Tho decision of tho court below upon tho motion was goneraly and so far as 'ho record shows, whilst in the assignment of errors, it is noticed as having been given upon tho second and thiid reason assigned for quashing the writ, which include ihis portion of tho affidavit. “And affiant further says that ho verily believes that Daniel Webster is indebted to said George W. Jones in a surA of money over and above tbc sum of fifty dollars, liwful money, and that said indebtedness arises out of and is founded upon contract in writing, styled in the said contract^ a memorandum of agreement.”

The law provides that “ to authorize tho issuing an attachment in any case, the defendant must bo indebted to tito plaintiff in a bnuse of action arising out of, founded upon, or sounding in contract, or upon a judgment or decree of some court of law or chancery;” (2d section of tho act of 1812;) and by the 3d section it further provides, that “ the facts necessary to entitle a parly to a writ of attachment, shall bo proven to tho satisfaction of a District Judge or of a Supremo Court Commissioner of the proper county, by tho affidavit of tho plaintiff or some credible witness-, stating therein the nature and amount, of the plaintiff’s demand, and the circumstances upon which the belief of such facts is founded, and sn'cli officer shall indorse tho fact of his satisfaction on the affidavit, which shall he filed with the clerk of the court before tho wtit shall issue.”

The first question presented in this case, as contained in the motion below* which was sustained in general terms, is regarded untenable. Upon the second and third questions, the inquiry relates to tho nature and amountof the demand, and as this case was submitted toa court-consisting of two of the three members,and as those differ as to the sufficiency of the statement in relation to the nature of the demand, the statute will ho considered as un-construod therein', hut in relation to tho amount, there is no such division of opinion. The law requires that the nature and amount of the demand shall be stated. Is lite amount stated herein? — ■ The language is this, as used by the affiant: “ That he verily be-lleves flint Daniel Webster is indebted to said George W. Jones in a sum of money over and above the sum of fifty dollars.” From an examination of the language used, it will bo readily perceived that no sum is slated at all. It is true, that the affiiot says ho verily believes that the defendant is indebted in a sum of money over and above fifty dollars; but at what point, in the vast rango of numbers, the mind is left wholly to the resources of the imagination. It would be unwise and unsafe, and wholly at war with the practice properly established in the harsh remedy of attachment, <o regard such a statement of the amount of the demand as sufficient. The District Court therefore did right in sustaining the motion to quash, particularly when it is remembered, (hat this uncertain sunt is slated under the mere belief of the affiant.— The statement of non-residence is positive and unequivocal by a credible witness, and not liable to the objection urged against it.

Dusk, for pit1!!' in error.

Collins and Buknett, for def’t in error.

Believing, as this court does, that the statement of the amount was wholly insufficient, we affirm the judgment of the Distriqt Court with costs.