Law Lib 
 
 KFW 
 
 2445 
 
 .A19 
 
 1842 
 
 copy 2
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 FOREWORD 
 
 This volume is an exact photo-reproduction of an original copy of 
 
 BURNETT 
 
 REPORT 
 
 of the 
 SUPREME COURT 
 
 of the 
 TERRITORY OF WISCONSIN 
 
 for 
 1842 and 1843 
 
 In the law library of the University of California at Los Angeles, 
 special acknowledgment is made to Mr. Louis Piacenza, Librarian 
 for the kind permission to use the original volume in this repro- 
 duction. 
 
 As a copy of the original is practically unobtainable, the reprint of 
 this volume is offered to enable law libraries to complete their 
 collection of Wisconsin Reports. 
 
 The edition has a limited printing. 
 
 Buffalo, N. Y. DENNIS & CO., INC. 
 
 November, 1953
 
 REPORTS 
 
 OF THE 
 
 SUPREME COURT 
 
 OF THE 
 
 TERRITORY OF WISCONSIN; 
 
 FOR 
 
 and 1843, 
 
 [Reported by T. P, Burnett, Reporter for the Territory,] 
 
 PUBLISHED BY AUTHORITY. 
 
 MADISON: 
 PRINTED BY GEORGE HYER. 
 
 1844,
 
 \
 
 REPORTS. 
 
 Cases argued and decided in the Supreme Court 
 of the Territory of Wisconsin at the July Term, 
 A. D. 1842. 
 
 [Reported by T, F, Burnett, Reporter for the Territory.] 
 
 JAMES D. DOTY, impleaded with ~\ 
 
 DAVID JONES and 
 
 ALEXANDER J.IR WIN, FPffin Error. J. Error to Dane County. 
 
 vs. | 
 
 MOSES M. STRONG, Def-t in Error. J 
 
 A writ of error may be quashed, when it does not agree with the record 
 of the case. 
 
 All the persons against whom a judgment is given, must be named as 
 plaintifis in a writ of error to reverse the judgment. 
 
 Although the proceeding of summons and severance is not familiar in 
 American practice, the more easy and equally legitimate course, is to en- 
 ter a rule against those who are named in the writ as plaintifis and who 
 have not appeared, either to appear and assign error, or suffei to be severed. 
 
 AT the November Term, 1841, of the Dane District Court, 
 Strong obtained judgment, in an action of assumpsit, against 
 Doty, Jones, and Irvvin. To reverse the judgment, Doty alone, 
 prosecuted this writ of error, and entered into a bond for a super- 
 sedeas in his own name, without joining his co-defendants in the 
 original action. 
 
 The defendant in error moved the court to quash the writ and 
 dismiss the cuuse, because, 
 
 " 1st. The writ of error is prosecuted in the name of Doty alone, 
 although the judgment which it is brought to reverse, is against 
 the said Doty, Jones, and Irwin: and 2d. The bond for the super- 
 sedeas is informal and insufficient." 
 
 In support of this motion, BURNETT and DUNN for the defen- 
 dant in error, contended: 
 
 That where a judgment is given against several, one only, can- 
 not prosecu te a writ of error to reverse it. If the writ is sued out, 
 it must be in the names of all the defendants against whom the 
 judgment was given. If each one was allowed his separate writ, 
 
 v>"
 
 4 REPORTS, 
 
 they could bring up the case successively, although the judgment 
 should be affirmed once or more; and as a writ for one would be 
 u supersedeas for all, the practice would tend to vexation and de- 
 lay. See 2 B;ic. Abr. Title Error, B. pnge 461, and the authori- 
 ties there cited. 2 Tidd's Prac. 1053, 1054. 3 Burr. 17S9. 
 Graham's Practice, 770, 771, 772. In such case, if the writ be 
 brought by one or more of the defendants only, and not in the 
 names of all, the court will quash it; 2 Tidd 1054. 2 T. R. 788. 
 3 Burr. 1789. 1 Wils. 88. 
 
 The bond in this case is defective. It does not conform to the 
 statute, nor does it conespond with the record of the cause, and 
 a recovery could not be had upon it in case the judgment should 
 be affirmed, 
 
 JACKSON, for plaintiff in error: 
 
 The writ is properly brought in the name of one only of the de- 
 fendants below. He is the one who complains of the error, and 
 for aught that appears, the others may be satisfied to let the judg- 
 ment rest. He has no power to compel them to join in the writ 
 or to sign the bond, and if they neglect or refuse to do so, the 
 defendant, Doly, cannot be deprived of his remedy. He is enti- 
 tled to the writ in his own name as a matter of right- 
 
 Chief Justice DUNN delivered the following opinion of the Court 
 upon the motion. 
 
 The defendant in error moved the court to dismiss the writ of 
 error herein for two reasons: "1st. The writ of error is prosecu- 
 ted in the name of Doty alone, although the judgment which it is 
 brought to reverse was against the said Doty, Jones, and Irwin. 
 2d. The bond for supersedeas is informal and insufficient." 
 
 The record in this case from the District Court of Dane county, 
 shows, that at the November term of 1841 of said court, a judg- 
 oient was rendered in favor of the said defendant, Strong, against 
 ihe said plaintiff, James D. Doty, Alexander J. Irwin, and David 
 Jones. To reverse this judgment, Doty, plaintiff in error, and one 
 the defendants against whom the said judgment was rendered, has 
 prosecuted this writ of error separately from the other defendants 
 in the judgment. The case, as it is now presented on the motion 
 submitted, being thus correctly stated, the court will proceed to 
 examine live merits of the motion to dismiss upon the grounds 
 set forth. 
 
 It ia not only a rule that no person, not a party, can sue out
 
 REPORTS. 5 
 
 a writ of error, but it is also a settled rule that it must be brought 
 in the names of all ihe parties against whom the judgment is giv- 
 en: And notwithstanding the death of any of the parties, though 
 the survivors must bring the writ, he must still be named and his 
 death must be alledged. And this is the rule, both that the writ 
 of error may ngree with the record, nqd to prevent vexation; far 
 if each party may' bring a writ, they might do it successively, to 
 the groat prejudice and delay of the plaintiff, who, in the opinion 
 of the ablest jurists, cannot sue out execution against anyone 
 where a writ of error is awarded, even on the application of the 
 others. A writ of error which in this respect is erroneous, may 
 be quashed. Garth. 8. Ld. Ray. 71. Saun. 101. f. 
 
 When one of several defendants brings a writ of error in which 
 the others are unwilling to join, he must do it in the name of all, 
 and those who refuse to appear and assign errors, must be sum- 
 moned and severed, and then the wiit of error must be proceeded 
 in by the rest only; and ihe defendant who prosecutes the writ, 
 will not be compelled lo proceed, until they have been summon- 
 ed and severed. Saund. ubi sup. Thus the writ of error cor- 
 responds with the record; and moreover the other parties would 
 be forever after barred of the writ; see Bac. Summons, H. So 
 that both purposes are subserved by this course of proceeding. 
 
 To this genera! rule there is this obvious exception, that if one 
 of the defendants in an action of tort is ncquitted, he need not be 
 joined, because he cannot say that the judgment is to his damage; 
 and moreover, for the reason (hat he can never vex the plaintiff 
 with another writ of error. The suit, however, should be descri- 
 bed in the writ according to the record, and thus both objects of 
 ihe law herein will be obtained. Saund. ubi sup. 
 
 In 6 Serg. &, Rawie, in the case of Folterall vs. Floyd, this doc- 
 trine is fully recognized on full argument and reference to author- 
 ities. Hacket vs. Home, Garth. 7. Walter vs. Stokoe, 1 Ld. 
 Ray. 71. Brewer vs. Turner, 1 Str. 233. Cooper vs. Ginger, re- 
 portod in 1 Str. GOO, and Ld. Ray. 1403. And the principle de- 
 cided in Hucket vs. Home is mentioned and acknowledged io the 
 case of Knox vs. Costello, 3 Burr. 1789. 
 
 The practice of summons and severance is not familiar to the 
 American courts of error. The more easy and equally legitimate 
 practice, would be to enter a rule against those persons named in 
 the writ of error as plaintiffs and not appearing, either to appear
 
 REPORTS. 
 
 and assign error or submit to be severed. In any practice, howev- 
 er, all the defendants in judgment must first join in suing out the 
 writ of error. We are of opinion, therefore, that the writ of error 
 in this case be quashed for the first reason assigned in the motion 
 of the defendant, without considering the second reason which 
 goes to the form and sufficiency of the bond, which it is not ne- 
 cessary to consider at this time. 
 
 At a subsequent day of the term, the plaintiff moved the court 
 for a rehearing: 
 
 SMITH for plaintiff in error: 
 
 The praecipe for the writ in this case, was made out and filed 
 with the clerk in the names of all the defendants in the court be- 
 low, and if the writ was not issued according to the praecipe, it is 
 clear that it may be amended. But whether the writ might be 
 amended or not, is not material. A party has a right to the writ 
 separately. The old doctrine of summons and severance is ob- 
 solete, and has not been adopted in practice in this country. By 
 the decision of the Supreme Court of the United States in the 
 case of Cox and Dicks rs. the United States, 6 Peters 172, one 
 defendant may bring a \vrit of error alone, without joining the oth- 
 ers; and :he practice recognized in that case does not come with- 
 in the reasoning of the court in the opinion already delivered in 
 this case. One party cannot compel the others to join in the writ 
 and sign the bond. Some may be absent, or refuse, and the rea- 
 son of the English doctrine does not exist here. There the writ 
 and bail in error, supersede the whole judgment; here it is only a 
 supesedeas as to the party who sues out the writ and gives the 
 bond, and the plaintiff below may pursue his judgment as against 
 the others who do not join. 
 
 BURNETT, contra. 
 
 The first ground assumed in support of the motion now before 
 the court is, that thu praecipe was made out in the names of all 
 the defendants below, and that the writ may be amended to cor- 
 respond wilh the pjaccipe. The suggestion comes too laic. The 
 court will not set aside the decision given, to afford an opportuni- 
 ty to amend the papers or process, when no motion to amend was 
 ever made. Besides, it is proven to the court that the praecipe 
 was altered by the plaintiff in error himself, and that the writ was 
 issued in its present form by his direction. 
 
 The case of Cox and Dicks vs. the United States, cited from 6
 
 REPORTS. 7 
 
 Peters by the plaintiff's counsel, is not analagoua to this case, nor 
 does it support the position assumed. There the parties had sep- 
 arate defences in the court below, and although they prosecuted 
 separate writs of error, they were all before the court. 
 
 Chief Justice DUNN delivered the opinion of the court upon thb 
 motion. 
 
 The court could not, unless for extraordinary reasons, entertain 
 this motion. The reason for entertaining the motion urged by coun- 
 sel for the plaintiff, is, " that a decision of the Supreme Court of 
 the United States, in Cox and Dicks vs. the United States, rever- 
 ses the principles decided by this court on the motion to dismiss 
 herein." From a minute and careful inspection of that decision, 
 this court is unanimously in the opinion, that it is a case by no 
 means in point. The motion was decided on different grounds 
 entirely; and the jeasons which influenced the court in that case, 
 as far as they can be inferred from the arguments of counsel, (for 
 they are not assigned in the decision,) are such as conduce to sat- 
 isfy this court still more clearly, if any thing were wanting, that 
 their opinion on the motion in the case at bar, was correct. 
 
 We understand these to have been the reasons why the motion 
 to dismiss was overruled. All the parties were before the court. 
 They had separate grounds of defence, and the court below allowed 
 them to sever in their answers. Judgment was awarded against 
 all in in solido, and separately for the whole amount against two 
 of the defendants. They had both sued out a w.rit of error, and 
 the motion should have been to consolidate. The parties had 
 distinct grounds of error, and claimed distinct remedies. It was 
 insisted in argument, that the case of Williams vs. Bank, in 11 
 Cranch, was not applicable, because Williams alone took up the 
 cause; but in that case the court was understood to recognize the 
 principle in practice of summons and severance* 
 
 If the Supreme Court of the United States had decided that 
 the practice of summons and severance was obsolete in reference 
 to error in that court, (which, however, they did not,) still, if this 
 court had entertained the practice, it never having been reversed 
 by any judicial decision upon principle, it certainly would not have 
 been treated as error by the Supreme Court. 
 
 Motion overruled. 
 
 WM. R. SMITH and M. M. JACKSON, for plaintiff in error. 
 
 T. P. BURNETT and F. J. DUNN, for defendant in error.
 
 8 REPORTS. 
 
 EDMUND DAWS, pft/ in error, ) 
 
 vs. > Error to Jefferson county. 
 
 HORACE GLASGOW, deft in error.} 
 
 THE Supreme Court will not, under any circumstances, consider matters 
 assigned as error, which are dchnrs the record. 
 
 Although there is an ohvious impropriety in nn attorney in a cause, ta- 
 king, as a judicial olTicer, the affidavit of his client, which is to be the 
 foundation of the action, yet, as tlu-re is no provision of law or rule of 
 court to prohibit his di'injj so, tlis court cannot say, that from the fact of 
 his being attorney, he is not a proper oiTieer before whom the client fnay 
 make the necessary affidavit and that the proceedings should be therefore 
 dismissed. 
 
 Where the writ of replevin is for the caption and unjust detention of 
 property, the declaration should correspond and alledcje the caption and 
 detention ; a different form would be required under our statute if the de- 
 tention only was complained of. 
 
 Where a motion for a new trial is made on the ground that the verdict 
 is contrary to the evidence and the instructions of the court, and overruled, 
 and the record does not show what the evidence or instructions were, this 
 court is bound to presume, that the discretion of the District Court was 
 soundly exercised in overruling the motion. 
 
 Glasgow brought nn action of replevin against Daws in the Jeffer- 
 son District Court, for the cnpiion and detention of a horse. The 
 writ was issued in the usual form prescribed by the staiute for the 
 caption and detention, and the declaration filed corresponded with 
 the writ. It appeared that the affidavit upon which the writ issu- 
 ed, was made before the plaintiff's attorney as a Supreme Court 
 Commissioner. At the May term 1842 of the Jefferson District 
 Court, Daws, the defendant below, moved to dismiss the suit for 
 want of a sufficient affidavit and bond, which motion was overrul- 
 ed by the court. Tne defendant then filed a general demurrer 
 lo the declaration, which was also overruled; upon which he filed 
 the pica of now detinrt, or that he did not unjustly detain, &c., up- 
 on which issue was joined and a verdict rendered in favor of the 
 plaintiff. The defendant moved for a now trial on the ground that 
 the verdict was contrary to evidence and contrary to the instruc- 
 tions of court, which motion was overruled and judgment render- 
 ed upon the verdict. The defendant below has prosecuted this 
 writ of error to reverse the judgment, and has made the following 
 assignment of errors in the proceedings of the court below: 
 
 " 1st. The court erred in overruling the motion to dismiss for 
 want of a sufficient affidavit and bond:
 
 REPORTS. 9 
 
 2d. In overruling the defendant's demurrer to the plaintiff 1 3 
 declaration : 
 
 3d. In overruling the defendant's motion for a new trial* 
 
 4th. The court erred in ordering the issue to be made up on 
 the unjust detention only, as the taking was complained of.'' 
 
 There was no bill of exceptions taken to spread the testimony 
 or the instructions of the court upon the record, and the record 
 does not show any such order as is mentioned in the fourth error 
 assigned. 
 
 NOGGLE for plaintiff in error: 
 
 The affidavit, which is the foundation of this action, is not suf- 
 ficient, and the court below ought to have dismissed the case 
 upon motion. The affidavit was made before Markley, a Su- 
 preme Court Commissioner, who was the attorney for the plain- 
 tiff and who brought the suit. He was not a proper officer with- 
 in the meaning of the statute. See Stats. Wis. pa. 272, sec. 7. 
 
 The demurrer to the declaration ought to have been sustained. 
 The declaration is erroneous because it does not comply with the 
 requisitions of the statute. See Stat. Wis. pa. 273, sec. 16; Rev. 
 Stat. N. Y. 435; Yates Plead. 547. 
 
 The court below ened in requiring the defendant to plead as to 
 the unjust detention only. It is not such a plea as the statute re- 
 quires to a declaration in this form. See Stats. Wis. pa. 274, sec. 
 19. The issue thus made up precluded the defendant below from 
 justifying on the trial his caption of the property in dispute. 
 
 The motion for a new trial ought to have prevailed, because 
 the verdict was contrary to law and evidence. Admitting the 
 whole declaration to be proven, it does not establish a case in 
 which the plaintiff can recover. See 10 Wendell 629. Our 
 statute in relation to the action of replevin is the same as that of 
 New York, and the decisions under it ought to be the same as 
 given in that state. 2 N. Y. Stat. 435, sec. 36. 
 
 The verdict of the jury was contrary to the instructions of the 
 court, and in such case a new trial should have been granted. 
 Graham on new trials, 361 to 372. 
 
 BOTKIN, in reply: 
 
 The affidavit ought not to be considered insufficient on account 
 of the professional relation of the officer who administered the 
 oath. He was an officer authorized by law tc administer such 
 an oath, and there is no objection to the form of the affidavit. 
 
 2
 
 10 REPORTS. 
 
 There Ss no law prohibiting an attorney in a cause from adminis- 
 tering oaths if he is n qualified officer. He cannot change the ef- 
 fect oif a written affidavit by swearing ;lie party to ils contents 
 and signing the jurat. It may be conceded, that if the attorney 
 was to make any order or give any decision in a cause, as a civil 
 officer, that might, even by possibility, prejudice the rights of the 
 adverse client, he would nol in such cate be a proper officer. But 
 this is not such a case, and neither the law nor reason prohibits 
 the act that has been done. 
 
 The counsel for the plaintiff in error hrts assumed matters as 
 error that do not appear on the record, and which of course can- 
 not be settled here. The record does not show that the court be- 
 low in any way controlled the plaintiff in error as to the form or 
 substance of his plea; nor does it show any thing that will enable 
 this court to determine that the verdict of the jury was either 
 against evidence or the instructions of the court. 
 
 The declaration substantially complies with the statute,, and 
 with the soundest principles of practice, in every particular; and af- 
 ter verdict, every thing necessary to sustain it, is to be presumed 
 where the contrary does not appear. 
 
 NOGGLE, in conclusion: 
 
 Although the statute does not expressly prohibit an attorney 
 from acting as a civil officer in a cause in which he is employed, 
 still reason and sound policy require that the administration of 
 oaths and every other official act necessary to be done in the pro- 
 gress of the case, should be performed by sotne indifferent person. 
 
 The plea in this case only denies the unjust detention. If the 
 plaintiffbelow accepted the plea and took issue upon it, he aban- 
 doned the caption charged in the writ and declaration, and of 
 course the whole action, as the detention is only laid as a conse- 
 quence of the cap! ion. 
 
 Chiei Justice DUNN delivered the opinion of the court: 
 
 This case was tried in the District Court of Jefferson county 
 at the May term thereof, 1842; verdict and judgment thereon 
 rendered in fivor of defendant D;iws as plaintiff below, to reverse 
 which judgtn 'n', writ of error is prosecuted in this court. The 
 errors assigned by the plaintiff* are: 
 
 1st. The court erred in overruling the motion to dismiss for 
 want of sufficient affidavit and bond: 
 
 2d. In overruling demurrer to plaintiff's declaration:
 
 REPORTS. 1 1 
 
 3d. In overruling defendant's motion for a new trial: 
 
 4th. The court erred in ordering the issue to be made up on 
 the unjust detention only, as the taking was complained of. 
 
 Before proceeding to examine the errors which are based upon 
 the record, ihe court will premise, that they cannot consent, un- 
 der any circumstances, to consider or entertain matters dekors, as 
 the fourtli error assigned evidently is, from an inspection of the 
 record. 
 
 First then; did the District Court err in overruling the motion 
 to dismiss for want of a sufficient affidavit and bond? In discussing 
 this error, the counsel for the plaintiff took no exception to the 
 bond, indeed it does not appear to be obnoxious to any, but con- 
 fined his objections entirely to the affidavit; and assumed the 
 ground, "that the attorney for the plaintiff, although a Supreme 
 Court Commissioner of the county of Jefferson, is not a proper 
 officer in the meaning of the law, before whom the affidavit in re- 
 plevin may be made.' 1 Although there is an obvious impropriety 
 in the practice, and this court is much disposed to discountenance 
 it, yet theie is no rule of lusv, or of court under authority of law, 
 against the exercise of such a power by the attorney in the case, 
 by virtue of his office of Supreme Court Commissioner of Jeffer- 
 son county. The possibility of the ubu?e of a power delegated 
 by law, when exercised in a particular relation, is not a sufficient 
 argument against the exercise of the power in such relation, un- 
 less so specially provided in the law granting the general power: 
 And we aie of opinion that the District Court decided correctly in 
 overruling the motion to dismiss. 
 
 The decision of the District Court in overruling the demurrer 
 to the plaintiff's declaration, is also, in the opinion of this court, 
 free from error. The declaration is good, according to the most 
 approved practice, as a declaration in replevin, for taking and un- 
 justly detaining property. If it had been a declaration on a writ 
 of replevin, for the unjust detention onl), then, according to the 
 provisions of the 16th section of our "act concerning replevin," 
 the form of declaring should have been varied to meet the require- 
 ments of that Faction. The authority in 10th Wendell, Lloyd 
 Nichols vs. Charles Nichols, G29, is recognized by this court, it be- 
 ing a decision by the Supreme Court of New York on a statute of 
 that state pari materia with our own "act concerning replevin." 
 But the principle there decided is not brought in question in this
 
 12 REPORTS. 
 
 case, where the declaration contains all the material allegations 
 to support the writ of replevin, and entitle the plaintiff to recover 
 for the taking and unjust detention of his property, if sustained by 
 proof. Upon the record the decision of the District Court on the 
 demurrer was correct. 
 
 It is insisted in the 3d error assigned, that the District Court 
 erred in overruling the defendant's motion for a new trial. The 
 motion, with the reasons upon which it is based, are matters of re- 
 cord. The reasons in the motion are 1st. That the verdict was 
 contrary to the evidence given in said case: 2d. That said verdict 
 was contrary to the instructions of the court. 
 
 It no where appears in the record, what this evidence and in- 
 structions of the court were . There is nothing to inform this court 
 whether or not the District Court exercised a sound legal discre- 
 tion in overruling the motion for a new trial; but we are bound to 
 presume that the discretion was properly and soundly exercised, 
 in the absence of matter, apparent on the record to the contrary. 
 
 We are therefore of opinion, that all the errors assigned are un- 
 tenable, and that the judgment of tne District Court of Jefferson 
 county be affirmed with costs. 
 
 DAVID NOGGLE for plt'ff in error. 
 
 FIELD and BOTKIN for deft in error.
 
 REPORTS. 13 
 
 DANIEL M. PARKISON, PPffin Error, ) 
 
 vs. > Error to Iowa County. 
 
 CHARLES BRACKEN, DcJ't in Error, > 
 
 IN an action at law, the patent of the United States is conclusive evi- 
 dence that the title to the land is in the patentee, and evidence will not be 
 admitted to establish an adverse equitable title. 
 
 If there should be two patents for the same tract of land, the elder patenl 
 must prevail at law. 
 
 If the defendant has an equitahlc title to the land, superior to that of the 
 patentee, he must resort to a court of equity to assert it. 
 
 The Receivers receipt for the same tract of land embraced in the patent, 
 showing that it was entered by the defendant at the land oftice, anterior to 
 the date of the patent, is not evidence for the defendant to defeat a recove- 
 ry in an action of ejectment brought by thn patentee, and should not be 
 read to the jury on the trial; and the District Court properly excluded all 
 testimony of facts which would only go to show an equitable title in the 
 defendant adverse to the patent. 
 
 A continuance, asked for by the defendant, to enable him to procure tes- 
 timony which would only go to establish an equitable title in himself ad- 
 verse to the patent, for the purpose of defeating a recovery at law by the 
 patentee, ought not to be granted. 
 
 A patent which appears on its face to have been regularly issued, will 
 be presumed to have been signed and executed according to law, until the 
 contrnry shall be made to appear, and the court cannot undertake to say, 
 frooi the mere inspection of the hand writing, that the name of the Presi- 
 dent was not signed by the proper person. 
 
 The law presumes that public officers do their duty, and that in their of- 
 ficial acts they conform to the requirements of the law, until the contrary 
 shall be made to appear. 
 
 The act of Congress to confirm land patents, approved March 3, 1841, 
 is valid and effectual, and cures all defects provided for in patents that had 
 been previously issued : it relates back to the date of the patent confirmed, 
 and it makes no difference that a suit was pending on the patent at the pas- 
 sage of the act. 
 
 This was an action of ejectment, brought by Bracken against 
 Parkison, in the Iowa District Court, to recover a tract of eighty 
 acres of land. At the September term, 1841, when the cause 
 was called for trial, Parkison moved the court for a continuance 
 of the cause, for the purpose of enabling him to procure testimony 
 from the General Land Office at Washington, to prove various 
 matters tending to show that he had a superior equitable right to 
 enter the land in controversy; in order that by connecting such 
 testimony with the receiver's receipt which he held for the same 
 tract, of anterior date, he might defeat the patent which had been 
 issued to Bracken. The District Court refused to grant the con- 
 tinuance, and decided that the facts which he expected to prove
 
 14 REPORTS. 
 
 would not be competent testimony in the defence. Upon the 
 trial, the plaintiff below offered in evidence a patent from the 
 United States to him for the land in dispute, dated 27th April, 
 1840. The patent was signed " Martin Van Buren, by M. Van 
 Buren, jr. sec'y." From the appearance alone of the writing, it 
 would seem that both names were not written by the same hand. 
 The defendant's counsel objected to the reading of the patent in 
 evidence, alledging that it was evident from its face, that the Pre- 
 sidents name was not written by the secretary authorized to sign 
 patents, and that no other person could lawfully sign the name of 
 the President to a patent. There was no evidence offered to 
 sustain the objection, which objection the court overruled, and 
 permitted the patent to be read to the jury. After the plaintiff's 
 testimony was closed, the defendant offered to read in evidence 
 to the jury, the receipt of the Receiver of public money at Mineral 
 Point, dated 15th March, 1830, by which it appeared that on that 
 day he entered, at the Land Office at Mineral Point, the tract of 
 land in controversy, and to accompany it by other testimony, sim- 
 ilar to that, to procure which he asked a continuance; to all which 
 testimony the plaintiff's counsel objected, which objection the 
 court sustained, and rejected the testimony. Exceptions were 
 taken to these various decisions, and a verdictand judgment were 
 rendered in favor of the plaintiff. To reverse this judgment, Par- 
 kison has prosecuted this writ of error, arid has assigned the fol- 
 lowing errors in the record of the proceedings in the court 
 below : 
 
 I. The court below erred in overruling the first motion of the 
 defendant below for a continuance. 
 
 II. The court below erred in overruling the second motion of 
 the defendant below for a continuance. 
 
 III. The court below erred in admitting in evidence the patent 
 offered by the plaintiff below. 
 
 IV. The court below erred in excluding the Receiver's receipt 
 offered by the defendant below as evidence. 
 
 V. The court below erred in excluding the evidence offered 
 by the defendant below. 
 
 VI. The court below erred in refusing to instruct the jury as 
 requested by the defendant below. 
 
 By order of the District Court, the patent was produced for the 
 inspection of this court, and the Receiver's receipt was also pro-
 
 KEPORTS. 15 
 
 -duced and examined. Upon argument, the sixth error assigned 
 Was abandoned by the plaintiff in error. 
 
 MOSES M. STRONG for plaintiff in error: 
 
 The two first errors assigned are in tho decisions of tho court in 
 overruling the motions of the defendant below fora continuance. 
 As 'he evidence sought to lie procured by the continuance was 
 substantially the same as that offered on the trial and rejected by 
 the court, they will be considered in connection with the error in 
 excluding the evidence offered by the defendant; for it will be 
 admitted, that if tho court decided correctly in rejecting the evi- 
 dence that w.<s offered, then the motion fora continuance for the 
 purpose of procuring other evidence of the same character, was 
 properly overruled. 
 
 We will first inquire whether the objection to the patent read in 
 evidence by the defendant in error on the trial below, and which 
 is embraced in the third assignment of error, was weil taken. I 
 will assume the position that title to land can orily pass from the 
 United States in pursuance of law, and that in all cases where the 
 laws of Congress prescribe one mode in which the title shall be 
 passed, no other mode can be substituted by the officers of the 
 government. By the former laws of Congress, all patents for land 
 had to be signed by the President himself. By the present law, 
 which was passed prior to the date of the patent in this cnse, a se- 
 cretary appointed for that purpose may sign for the President. 
 See acts of Congress of March 2, 1833, and July 4, 1836. We 
 contend that, under the present law, no person but the secretary 
 is authorized to sign the name of the President to the patent. The 
 patent produced by the defendant in error as evidence of his title, 
 shows on its face that the names of the President and secretary 
 were not written by the same hand. No testimony could make 
 the matter more plain. Bui the defendant in error insists that 
 this defect is cured by the act of Congress to confirm land patents, 
 approved March 3, 1841. Although it cannot be questioned that 
 Congress may pass laws to vest the title to land in any person, in 
 the first instance, without limitation or restriction, yet it cannot, 
 by a general law, make a patent valid that was invalid before. 
 The rights of other persons than the patentee, cannot be preju- 
 diced by the retrospective character of the act. Again: the act 
 of confirmation was passed after the commencement of this suit. 
 When the suit was commenced, the patent was bad, and the plain-
 
 16 REPORTS. 
 
 tiff below could not then have recovered upon it; the act cannot 
 relate back so as to affect or entirely change the rights of the par- 
 ties in the course of litigation at the time of its passage. 
 
 The record shows that the Receiver's receipt to Parkison for 
 the land in dispute bears date the 15th March, 1830, and the pa- 
 tent by which the defendant in error recovered below, is dated 
 7th April, 1840, and the question now arises: did the District 
 Court err in rejecting it and other evidence offered on the trial? 
 The receipt, connected with the other evidence offered, would 
 have shown an inchoate title in the plaintiff in error prior to the 
 date of the patent. It was a link in his testimony, and the couit 
 could not know but it would be followed by a patent according to 
 the entry. According to all authorities upon the subject, 
 Parkisou had an equitable title to the land. The testimony which 
 he offered, would have shown that his title was acquired before 
 the patent issued to Bracken, and the court ought to hare permit- 
 ted him to establish it by proof. Although, technically speaking, 
 his title was but an equitable one, if it was better than Bracken's 
 it ought to have been sufficient for his defence. Conflicting deci- 
 sions are to be found upon this principle, but the weight of autho- 
 rity and of reason, is in favor of the position assumed, in support of 
 which I will refer the court to the following authorities: Brush, 
 et al. vs. Ware, et al. appellees, 15 Peter's 93. Polkas lessee vs. 
 Wendell, 9 Cranch, 87. S. C. 5 Wheat. 293. Reader, et al. vs. 
 Barr,etal. 4 Ohio Rep. 446. Miller, et al. vs. Kerr,et al.7 
 Wheat. 1. Hoofnagle vs. Anderson, 7 Wheat. 212. Ross vs. 
 Doe, 1 Peters, 055. In the last case, the party was allowed to go- 
 behind the patent in a trial at law to defeat its legal effect. 
 
 DUNN for defendant in error: 
 
 This case principally depends upon the correctness of the deci- 
 sion of the District Court, in rejecting the testimony offered by the 
 defendant below. The plaintiff in error insists that the District 
 Court erred in not permitting him to prove an equitable title in 
 himself, anterior to the date of the patent to the defendant in er- 
 ror. A patent from the United States is conclusive as to the title 
 to lands, and in an action at law, a party cannot set up any adverse 
 title to the patentee or his assigns or legal representatives. If he 
 has an equitable title, a court of law cannot decide upon it; he 
 must apply to chancery for relief. If there are two patents for 
 the same tract, the rule applies in favor of the elder patent, and in
 
 REPORTS. 17 
 
 such case, the junior patent, if it amounts to any thing, is only 
 evidence of an equitable title. See Wilcox vs. Jackson, 13 Pe- 
 ters, 498. Ross vs. Doe, 1 Peters, G56. U. S. vs. Arredondo, 
 & Peters, 725. Bagncll et al. vs. Brodcrick, 13 Peters, 436, 450. 
 1 1 Whecat. 580. 5 Wheat, 293 . 7 Wheat. 15 1. 
 
 The plaintiff in error insists that the patent read in evidence by 
 the defendant in error upon the trial was not signed as the law re- 
 quires, and that it is therefore void. There was no evidence of- 
 fered to impeach the patent, and there is no principle of law that 
 will authorize the court to say, from inspection only, that an official 
 paper has not been signed as it purports on its face to have been 
 done. Admitting that the error existed in the signing of the pa- 
 tent, as is alledged, the United States only could take advantage 
 of the defect, and they had full power to correct it, and the cor- 
 rection has been made. The act of Congress of March 3, 1841, 
 was passed to confirm titles that had been defectively granted to 
 the purchasers of the public lands, and cures the alledged defects 
 in this patent, if they existed at all. 
 
 BURNETT in continuation. 
 
 The correctness of the decision of the District Court, in ad- 
 mitting the patent as evidence, it seems to me cannot be ques- 
 tioned. A patent is a record, and proves itself. When required 
 as a matter of evidence, nothing further is necessary than its pro- 
 duction, and if it is regular on its face, it must be admitted. This 
 patent appears to be regular on its face, and although the error 
 may exist in signing, as is contended, it was not void; at most, it 
 was only voidable, and independently of the act of Congress pas- 
 sed in confirmation, the plaintiff in error could not impeach it in 
 this suit. Where a patent, regular on its face, is voidable, it can 
 only be avoided by a proceeding in chancery for that purpose; 
 Jackson vs. Lnu-ton, 10 Johns. Rep. 23. If a patent is issued by 
 fraud or mistake, unless the fraud or mistake appears upon its 
 face, it can only be avoided by a suit in chancery for that purpose ; 
 id. Jackson exdcm. Houseman vs. Hart, 12 Johns. Rep. 77. Fur- 
 ther: the court is bound to presume, until it shall be made to ap- 
 pear otherwise, that where the law requires public officers to per- 
 form certain acts in a particular manner, they have done their 
 duty in the manner which the law prescribes. This is a presump- 
 tion of law: See 3 East. 200. Hartwell vs. Root, 19 Johns.
 
 18 REPORTS. 
 
 Rep. 347. PoWs lessee vs. Wendell, 9 Cranch, 98. S. C. 5 
 Wheat. 304. Patterson vs. Jenks, 2 Peters, 237. 
 
 But if the patent could be impeached in this suit, (which is not 
 admitted,) how was it to be done? Surely by him who alledged 
 the irregularity proving that it existed. This has not been attempt- 
 ed, and the court is asked to decide in his fnvor, upon bare in- 
 spection. The court is required to know, judicially, the hands 
 writing of the officers of the government, and to decide from that 
 knowledge whether signatures be genuine or not. There can 
 be no authority found to sustain the position, and it cannot be 
 necessary to refer to any to lefule it. 
 
 A patent, then, being a record, and proving itself, requiring no 
 other evidence to support its authenticity or establish its validity, 
 and this being regular on its face, and purporting to have been 
 issued in the manner prescribed by law, and standing unimpeach- 
 ed by any testimony against it, the court is bound to acknowledge 
 it for what it professes to be, and give it full weight as evidence 
 of title in the patentee. 
 
 This point being disposed of, as I trust satisfactorily, the fourth 
 and fifth errors assigned may be considered together, and they will 
 dispose of the whole case. It is not necessary agam to go over 
 the arguments that have been offered to the court, and the autho- 
 rities that have been read to show, that in an action at law, the 
 patent is conclusive evidence of title in the patentee or those 
 claiming under him, and that an adverse equitable title cannot be 
 set up to defeat it; and that if there be an adverse equitable title, 
 a court of chancery is the only tribunal that can give relief. This 
 is the established doctrine in every state in the Union, (I believe,) 
 where equity courts exist, and the settled rule of the Supreme 
 Court of the United States. The authorities that have been read 
 by the plaintiff in error for the purpose of controverting the princi- 
 ple laid down, do not sustain his position. The most of his cases 
 were appeals in chancery, where bills had been filed to establish 
 equKable titles, and whenever the inquiry has been gone into at 
 law, it has been under some peculiar and extraordinary circum- 
 stances, not at all analagous to this case. The case of Ross vs. 
 Doe, cited from 1 Peters, is relied upon as authority here. When 
 the court examines the law under which that case was decided, it 
 will be found to have no applicability to this. The conflict of titles 
 in that case, arose under the act of Congress of 3d March, 1803,
 
 REPORTS. 19 
 
 regulating the grants of land and providing for the disposal of the 
 lands of the United States south of the state of Tennessee, 2 
 Story's Laws U. S. 893. And the principles decided by the Su- 
 preme Court, and the reasons upon which they were based, do not 
 at all conflict with the general rule that the patent is conclusive 
 in a trial at law. 
 
 But it is said that the court ought not to have rejected the evi- 
 dence that was offered, because it was a link in the chain of title, 
 and the court could not know but it might have been followed by 
 a patent to the plaintiff in error. This argument is more specious 
 than forcible. If lie had a patent of elder date, the production of 
 it would have settled every question. The superior patent is the 
 highest evidence of title, and is not connected with equity by 
 links or chains to make it prevail over all others in a trial at law. 
 
 Judge JMILLUR delivered the opinion of the court: 
 
 This was an ejectment, brought by the defendant in error against 
 the plaintiff in error, in the District Court of Iowa county. 
 
 The court admitted in evidence, on the part of the plaintiff, a 
 patent purporting to have been signed in the name of the Presi- 
 dent of the United States by his secretary for that purpose. The 
 patent appears on its face to have been regularly executed, sealed, 
 and recorded, according to law; but, because the filling up of the 
 patent, and the name of the President, appear to be in the same 
 hand writing, and the signature of the secretary in another, it was 
 thereby inferred that the President had not signed it, or that the 
 secretary had not signed the President's name according to the 
 requisites of the statute. The objection was merely made on the 
 ground of this supposition, without offering to produce witnesses 
 to prove that it was not executed according to law. The patent 
 appearing on iis face to have been legally executed, sealed, and 
 recorded, it is presumed to have been done by the proper officers 
 until the contrary appears; 3 Starkie's Evidence, 1248, 1249, 
 1250. 10 East. 216. 3 East. 200. Hartwell vs. Root, 19 
 Johns. Rep. 347. PoWg lessee vs. Wendell, 9 Cranch, 98. 5 
 Wheat. 304. 2 Peters, 237. 15 Peters, 490. 
 
 But if this objection to this deed were sustained by legal proof, 
 the act of Congress entitled an act to confirm land patents, ap- 
 proved March 3d, 1841, cured this alledged defect. It is alledged, 
 however, that it only became a legal patent, and vested the legal 
 title to the land in the patentee, on the date of its confirmation,
 
 20 REPORTS. 
 
 and not before. Congress has the sole power to dispose of the 
 public domain, and to declare the dignity and effect of titles ema- 
 natingfrom the United States, and as it is not restrained by the con- 
 stitution from passing such a law, its propriety and constitutional- 
 ity cannot be questioned. Even in the states where legislatures 
 are restricted and restrained from passing laws impairing the obli- 
 gation of contracts, such statutes of confirmation or correction are 
 common. The Supreme Court of Pennsylvania, in the case of 
 Underwood vs. Lilly, (10 Sergt. & Rawle, 97,) decided that the 
 act of assembly of that state confirming certain judgments in York 
 county, was not unconstitutional, although retro-active. A simi- 
 lar decision was made on the constitutionality of the act curing 
 defects in previous acknowledgments of deeds by femrnes covert. 
 Barnet vs. Barnet, 15 Scrgt. & Rawle, 72. Tale vs. Stooltz- 
 foos, 15 Sergt. & Rawle, 35. -Mercer vs. Watson, 1 Watts' 
 Rep. 356. A similar decision was made by the same court, res- 
 pecting an act providing for the closing of the concerns of bank- 
 ing institutions, although that act operated upon suits pending at 
 the time of its passage, so as to render them valid: Blackncy vs. 
 The Bank of Green castle, 17 Scrgt. & Rawle, G4. Similar de- 
 cisions have been made, to a very great number, on similar laws, 
 some of which will be found in 1 Rawle, 181. 2 Watts, 433. 2 
 Rawle, 374. 7 Sergt. & Rawle, 200. 11 Sergt. & Rawle, 191. 
 The fourth and fifth errors assigned, are upon the rejection of 
 a duplicate receipt from the Receiver of public moneys for the 
 Mineral Point Land District, to defendant, for the land in dispute, 
 and other evidence connected with the possession and entry of 
 this land previous to the patent. This receipt is dated on the 
 loth March, 1830, and the patent of plaintiff is dated on the 27th 
 April, 1840, but it does not appear when the patentee paid for the 
 land and obtained his receipt. In a court of law, the patent is 
 conclusive. Even in the case of conflicting patents, the first pa- 
 tent is conclusive, and relief can only be had in a court of chan- 
 cery. 10 John. Rep. 23. 12 John. Rep. 70. 9 Crancb, 98. 15 
 Peters, 105. 7 Wheaton, 1. 15 Peters, 490. It is true that 
 there is no objection in going into facts behind the patent in sup- 
 port of the title, particularly in states where there is no court of 
 chancery, it may be necessary; but in this Territory we have a 
 court of chancery of sufficient power to inquire into the equitable 
 interests of the parties. There might have been no impropriety
 
 REPORTS. 21 
 
 in receiving the evidence offered, but it could not prevail against 
 the patent of the plaintiff, under the charge of the court; but as 
 there was no offer to accompany the evidence offered with a pa- 
 tent, the court was right in rejecting it. An equitable title can- 
 not prevail in an ejectment against a legal title. In an ejectment, 
 the parties are confined to their legal rights. If there is equity 
 in the case, it must be disposed of in the court of chancery. 
 
 The first and second errors assigned relate to the refusal of the 
 court to put off the trial on affidavits filed. As these affidavits 
 contain a statement of facts not then in the possession of the party, 
 as the ground of the application, and as it abundantly appears that 
 the same or similar matters were properly rejected by the court, 
 and that these would also have .been rejected if offered, the court 
 will not reverse the judgment. 
 
 The sixth error assigned was withdrawn in the argument. 
 
 Judgment of the District Court affirmed with costs. 
 
 MOSES M. STHONG, for pl'ff in error. 
 
 T. P. BURNETT and F. J. DUNN, for deft in error.
 
 2*2 REPORTS, 
 
 THE UNITED STATES, ex relalioni \ 
 
 THOMAS J. NOYES, ( ,., .. , ,. , 
 
 > Motion for a Mandamus. 
 
 ALLEN W. HATCH, ) 
 
 THE act of Congress donating land to the Territory to aid in the con- 
 struction of the Milwaukee anil Rock River Canal, authorizes the Legis- 
 lature to elect or appoint the persons to manage and dispose of the land. 
 
 The Register and other officers appointed for the disposal of said lands 
 are not civil nffii-ers within the meaning of the constitution or the organic 
 law, and the legislature has the right to appoint them directly by naming 
 them in the law, or to elect them under an existing law providing for that 
 mode of filling those offices ; and the exercise of this power does not conflict 
 with the right of the Executive to appoint all civil officers. 
 
 The term civil officers, according to the meaning of the organic law and 
 the constitution, embraces only those officers in whom a portion of the sov- 
 ereignty or municipal regulations, or the general interests of society are 
 vested, and does not mean such oiBcers as canal commissioners. 
 
 This was a motion for a mandamus. Both the relator and the 
 respondent claim to be Register of the Board of Commissioners 
 of the Milwaukee and Rock River Canal Company, and the case 
 was brought before this Court to test the right to the office. The 
 affidavit of the relator states, that on the 22d day of February, 
 1842, he was appointed by the Governor, Register of the Board 
 of Commissioners of the Milwaukee and Rock River Canal Com- 
 pany, and commissioned until the end of the next session of the 
 legislature : That on the 13th of March he took the oath and gave 
 the bond required by law, which bond was accepted and approved 
 by the Governor, and immediately entered upon the duties of his 
 office, which he has continued to discharge ever since: And that 
 the respondent has in his possession, the books, documents, charts 
 and papers pertaining to the said office, and refuses to deliver them 
 to the relator, although demanded of him, and evidence of the 
 appointment and qualification of the relator had been exhibited 
 to him. 
 
 By agreement of the parties, a rule to show cause was consid- 
 ered as having been entered, and the case was submitted upon an 
 application for a peremptory mandamus. 
 
 The respondent showed for cause, that on the 18th day of Feb- 
 ruary, 1842, he was duly elected to the said office, on joint ballot 
 of both houses of the legislative assembly; that he has duly taken
 
 REPORTS. 23 
 
 and subscribed the oath of office required by law, and executed 
 the requisite bond, which was approved by the District Attorney 
 for the county, and presented the same to the Governor fur his 
 acceptance and approval, who refused to approve and accept said 
 bond, on the ground, as allcdged, that the respondent was not law- 
 fully in office. The respondent insists; that having been duly 
 elected to said office according to the provisions of the existing 
 law, and having done all in his power to qualify himself legally, 
 he has a right to retain the possession of said books, documents, 
 charts and papers; that the relator has not been appointed to said 
 office according to law, and that the application before the court 
 should be denied. 
 
 STOW for relator: 
 
 The office of Register of the Board of Commissioners of the 
 Canal Company, being created by law, can only be filled by ap- 
 pointment of the Governor, according to the provisions of the law 
 organizing the Territory. The act of the legislature of 26th Feb- 
 ruary, 1839, creating the office, was in accordance with this prin- 
 ciple, and provided that the office should be filled by executive ap- 
 pointment. The act. of llth January, 1840, providing for the 
 election of the canal officers by joint ballot of both houses of the 
 legislature, conflicts with the organic law and must be regarded 
 as nugatory. These are civil officers, or they are not officers at 
 all. Blackstone defines an officer to be a person clothed with au- 
 thority to exercise a public employment and receive the fees and 
 emoluments therefor. These canal commissioners exercise a 
 public employment to which emoluments are attached by law, 
 which the incumbents have a right to receive; they are therefore 
 strictly within the definition of the term, and as their duties are 
 purely of a civil nature, they must be civil officers, who, the or- 
 ganic law says, shall be appointed by the Governor. 
 
 The validity of the act of 1840, under which the respondent 
 claims the office, involves a question of much greater importance 
 than the mere contest between individuals. The power of legis- 
 lation is limited to rightful subjects. No subject is a rightful 
 subject of legislation, which conflicts with the Constitution of the 
 United States, the laws of Congress, or the ordinance of 1787. 
 It is conceived that the act of the Legislative Assembly of 1840, 
 conflicts with the provisions of the organic law in prescribing the 
 mode of filling these offices, and that therefore the subject is not
 
 24 REPORTS. 
 
 a rightful subject of legislation: If so, the act will be declared 
 void. The office, however, exists under the former law, and will 
 remain. The relator has been appointed to this office in the man- 
 ner pointed out in the act of Congress, and is lawfully entitled to 
 the books and papers belonging to it. 
 
 WHITON for respondent: 
 
 We contend that the canal commissioners are not officers with- 
 in the meaning of the organic law. We will examine the ques- 
 tion. 
 
 1st. Are they such officers? Certainly they are officers of some 
 kind, but not such officers as were contemplated by the law. 
 That law did not intend to include every peson exercising any 
 kind of public employment, such as road commissioners, bank or 
 canal commissioners. Persons required by law to do some spe- 
 cific acts, are not officers within the meaning of the act of Con- 
 gress. 
 
 2d. Admitting these persons to be officers %vithin the meaning 
 of the organic law, the right of the executive to appoint them is 
 superseded by the act of Congress donating the canal lands: (See 
 acts of Congress of 1838, page 70, sec 1, 2.) Here is a donation 
 of lands for a specific purpose, and their entire control is vested in 
 the legislature of the Territory, or such person as the legislature 
 may appoint. The canal commissioners are merely the agents of 
 the Territory to effect the acts of Congress and of the legislature 
 in relation to these lands. If the Governor has the right to ap- 
 point them, he has the power to remove them, and thus he might 
 take from the legislature the control of the canal lands which was 
 given to it by Congress. 
 
 3d. The power of the legislature, when exercised upon a right- 
 ful subject, can only be questioned by Congress, and that body 
 must disapprove the act before its validity can be called in ques- 
 tion. 
 
 ARNOLD, in continuation: 
 
 This is a case of first impressions. There is no precedent or 
 authority to control the court in its decision. The question will 
 therefore be decided upon a sound construction of the law and the 
 reason of the law. To arrive at a correct conclusion, it is not ne- 
 cessary to show that the respondent was lawfully in office. The 
 relator must show, affirmatively, that he is the lawful incumbent, 
 and if he fails to do this he must fail in his application.
 
 REPORTS. 25 
 
 By the act of Congress donating the canal lands, the Territory 
 is made a trustee for the purposes of the act, and the ~anal officers 
 are only the agents of the Territory to fulfil that trust. 
 
 Admitting that the canal officers are civil officers within the 
 meaning of the organic law, still, by a subsequent act of Congress 
 of equal validity, the appointment of these officers is given, accor- 
 ding to the fairest construction, to the legislature. It will be seen 
 upon examination, that there is a material difference in the word- 
 ing of the organic law and the act donating the canal lands. By 
 the organic law the Governor is made a constituent pait of the 
 legislative assembly. The word " legislature" does not occur in 
 that act, but the words, " legislative assembly," which means the 
 Governor, Council, and House of Representatives, is alone used. 
 In the latter act, the word " legislature" is only used; and the con- 
 trol of the canal lands is given to the legislature, to be disposed 
 of by that body or by such persons as it shall appoint for that pur- 
 pose. It seems clear that the Governor has nothing to do with 
 filling these offices, unless the legislature gives him the authority. 
 
 WELLS, in conclusion: 
 
 There is in reality but one question involved in the case. Are 
 the canal commissioners civil officers? If they are, the motion, 
 must be sustained. If we consider the nature of their employ- 
 ment, their duties and emoluments, and compare them with all le- 
 gal definitions of the term " officer," the question must be deci- 
 ded affirmatively. The law organizing the Territory clearly vests 
 the power of appointment in the Governor, and as the law standw 
 he can only be divested of the power by implication. 
 
 Judge MILLER delivered the opinion of the court: 
 
 This is an application for a mandamus, to compel the respon- 
 dent to deliver over to the relator, the books, records and papers, 
 in, and pertaining to, the office of Register of the Board of Canal 
 Commissioners of the Milwaukee and Rock River Canal. It is in 
 reality a contest between the Governor and Legislature of the 
 Territory respecting the power of appointing the said commission- 
 ers; and it has received from the court the deliberation and re- 
 search demanded by the dignity of the parties and the great im- 
 portance of the question. 
 
 By an act of Congress, approved June 18th, 1838, entitled "an 
 act to grant a quantity of land to the Territory of Wisconsin, for 
 the purpose of aiding in opening a canal to connect the waters of 
 
 4
 
 26 REPORTS. 
 
 Lake Michigan with those of Rock River," there was granted to 
 the Territory for the said purpose, the odd sections along the 
 course of the canal, and to be subject to the disposal of the legis- 
 lature of the said Territory for the purpose aforesaid, and no oth- 
 er. The said act further provides, that the Commissioner of the 
 General Lsnd Office shall ascertain, under the direction of the 
 President of the United States, the particular lands granted to the 
 Territory, and shall cause duplicate lists of the same to be prepar- 
 ed from the plats on file in his office, one of which he shall trans- 
 mit to the Governor of said Territory, who, or such other person or 
 persons as shall be appointed for the purpose under the authority 
 of the legislature of the Territory, or of the State which may be 
 erected out of the same, after the admission of such State, shall 
 have power to sell or convey, the whole, or any part of said lands, 
 at a price not less than two dollars and fifty cents per acre, and 
 to give a title in fee simple therefor to whomsoever shall pur- 
 chase the whole or any part thereof. 
 
 In pursuance of this act of Congress, the legislative assembly 
 of the Territory, on the twenty-sixth day of February. 1839, pas- 
 sed an act to provide for aiding in the construction of the Milwau- 
 kee and Rock River Canal ; the second section of which provided for 
 tire appointment, by the Governor, by and with the advice and con- 
 sent of the Council, of three Commissioners, tc be stylsd the 
 Board of Canal Commissioners, one of whom to be designated as 
 the Acting Commissioner, one as Register, and one as Receiver, 
 and to hold their offices for the term of one year, subject, howev- 
 er, to be removed at the pleasure of the Governor. They were 
 also to give bond with security, for the faithful discharge of the 
 duties of their office. They were also authorized to administer 
 oaths and examine witnesses, touching any applications for the re- 
 gistry of lands under the provisions of said act. They were also 
 empowered in said act, to make sale of the said lands, so as afore- 
 said granted to the Territory. 
 
 By an act of the legislative assembly, approved on the eleventh 
 day of January, 1840, it is provided, that the canal commission- 
 ers shall be elected annually, on joint ballot of the Council and 
 House of Representatives of the Territory, and shall hold their 
 oflices for the term of one year, and until others are elected in 
 their places. This act, in this particular, superseded the act of 
 the twenty-sixth day of February, 183'J.
 
 REPORTS. 27 
 
 It is provided in an act of Congress, entitled " an act establish- 
 ing the Territorial Government of Wisconsin," approved 20th 
 April, 1836, that the legislative power of the Territory shall be 
 vested in a Governor and a Legislative Assembly ; and further, that 
 the Governor shall nominate, and by.and with the advice and con- 
 sent of the legislative Council, appoint, all judicial officers, jus- 
 tices of the peace, sherilTs, all militia officers,, except those of the 
 staff, and all civil officers not otherwise provided for. 
 
 Under this provision of the organic law, the relator was appoin- 
 ted by the Governor, Register of said board on the 22d day of 
 February, 1842, during the recess of the Council. The respon- 
 dent was elected by the Legislative Assembly, on joint ballot, on 
 the 18th day of the same month, to the same office, in pursuance 
 of the act of January, 1840. They both claim to exercise and 
 hold the same office under their respective appointments, and the 
 question for the determination of the court is, which appointment 
 is legal. 
 
 The above mentioned act of Congress, making the said grant 
 of land, was passed more than two years after the date of the or- 
 ganic law of the Territory ; and they are both of equal power, 
 force and effect, in relation to their respective objects, and are on 
 aa equality as laws enacted by Congress. The organic law is 
 binding upon the legislation of the Territory, as the Constitution of 
 a State is upon the action of its legislature; but it is a mere act 
 of Congress, subject to its amendment, modification or repeal. 
 Under the Constitution, it was competent for Congress to legis- 
 late directly for the Territory; but as this would be inconvenient, 
 and probably not consistent with the immediate or local wants or 
 interests of the people, the Territorial Government was created 
 by the organic law, wherein the Governor and Legislative Assem- 
 bly are authorized to discharge their respective duties therein re- 
 ferred to, for the interest and protection of the people. Congress 
 passed the act of June, 1838, with a full knowledge of the organ- 
 ic law, and of the power grven therein to the Governor to make 
 appointments. This is a law of a peculiar character for a specific 
 purpose a mere grant for a certain purpose not Connected with 
 the government of the Territory, or with the respective functions 
 of the Governor and Legislature, as directed and authorized in 
 the organic law. The lands granted by this act, were made sub- 
 ject to the disposal of the legislature, for the purpose mentioned
 
 28 REPORTS. 
 
 in the grant; and by authority of the legislature, the Governor 
 himself, or some other person or persons, are to be appointed to 
 make sales of these lands. In order to carry into full effect the 
 object and intentions of this grant, it was competent and proper 
 for the legislature, or legislative assembly, to pass an act, author- 
 izing and appointing the Governor to act as the commissioner, or 
 to authorize the Governor to appoint the commissioner, or to ap- 
 point the commissioner with the advice and consent of the Coun- 
 cil, as was done in 1839, or for the election of a commissioner or 
 commissioners on joint ballot and such law, whatever it may be, 
 is the proper rule of action until repealed. 
 
 This is an application to the court, to declare void the act of 
 January 1840, under which the respondent was appointed, on the 
 ground that it conflicts with the organic law. It would be the 
 right and duty of the court to do so in a clear and manifest case; 
 12 Sergt. & Rawle, 330; 3 Sergt. & Rawle, 169; 4 Wheaton's 
 Reports. But this, in the opinion of the court, is very far from 
 being such a case. The propriety of the act of January, 1840, 
 in this particular, and of the election or appointment of the respon- 
 dent in pursuance of it, is beyond all question or doubt. 
 
 The power of the Governor to appoint the relator, remains to 
 be considered. This power is claimed for the Governor by vir- 
 tue of the seventh section of the organic law; in which he is au- 
 thorized to nominate, and by and with the advice and consent of 
 the Council, to appoint all civil officers, not therein provided for. 
 Laying aside the position that this office of canal commissioner 
 was not contemplated by Congress at the enactment of the organ- 
 ic law, it may be inferred that tho term, civil officers, was intend- 
 ed to embrace such officers as in whom part of the sovereignty or 
 municipal regulations, or general interests of society are vested; 
 and that such has been the general understanding in the states, un- 
 der their constitutions, is known to citizens of experience and ob- 
 servation. But this question is not without authority of a very 
 respectable character. On page '244, of 17 Sergt. &. Rawle, will 
 be found, quoted from 3 Greenleaf's Reports, 482, which is not in 
 the library, as follows: In 1822, the supreme judicial court of 
 the State of Maine, consisting of Mellen, chief justice, and Pre- 
 ble and Weston, justices, in an opinion given to the Governor of 
 that State, say that the terms office and officers, arc used in the 
 Constitution of Maine, where it prescribes an oath of office to all
 
 KEPOKTS. 
 
 legislative, executive, and judicia officers, imply a delegation of 
 a portion of the sovereign power to, and possession of it, by the 
 person filling the office, and that a person clothed with a resolve 
 of the legislature, with no other powers than those of superintend- 
 ing the public lauds, and performing cenain acts relating to them, 
 under the discretionary regulation of the Governor, was not an of- 
 ficer, and therefore was not required to take the oath. 
 
 By section 8 of article 2, of the Constitution of Pennsylvania, 
 adopted in 1790, the Governor is authorized to appoint all officers 
 whose offices are established by the Constitution, or shall be es- 
 tablished by law, and whose appointments are n'ot therein other- 
 wise provided for. 
 
 In the case of the Commonwealth ex rdafloni Dr. George F. 
 Lehman vf. Dr. Joel B. Sutherland, 5 Sergt. &. Rawle, 145 ; 
 which was a rule to show cause why leave should not be granted, 
 to file an information in nature of a quo warranto, against Joel B. 
 Sutherland, to inquire by what authority ho exercised the office 
 of Lazaretto physician; Chief Justice Tilghman uses the follow- 
 ing language: The word, office, is of very vogue and indefinite 
 import. Every thing concerning the administration of justice, or 
 the general interests of society, may be supposed to be within the 
 meaning of the Constitution, especially if fees and emoluments 
 are annexed to the office. But there are matters of temporary 
 and local concern, which, although comprehended in the term of- 
 fice, have not been thought to be embraced by the Constitution. 
 And when offices of that kind have been created, the legislature 
 have sometimes made the appointment in the law which created 
 them; sometimes given the appointment to others than the Gov- 
 ernor; and sometimes given the power of removal to others, al- 
 though the appointment was left with the Governor. The offi- 
 cers of whom I am speaking, (says the Chief Justice,) are of- 
 ten described in acts of Assembly by the name of commis- 
 sioners. Such, for instance, as one employed in the laying out 
 of roads and canals and other works of a public nature. Yet all 
 these perform a duty, or in other words, exercise an office. So, 
 likewise, officers within the limits of a corporation are, generally, 
 appointed by the corporation, unless they concern the administra 
 tion of justice. And in order to discover in what light this office 
 of physician to the board of health has been viewed, the chief jus- 
 tice traced the health laws from their origin, and satisfied himself
 
 30 REPORTS. 
 
 that it has been considered, and justly considered, as an office un- 
 der the control of the legislature, and subject to their modifications 
 as to appointment, duration, and removal. Judge Duncan, in his 
 opinion in the same case, on page 154, says: that the power of 
 appointment to a new office, without commission from the Gov- 
 ernor, in the law creating the office, has freqently been exercised; 
 as the commissioners appointed by the act of April, 1794, to set- 
 tle the compensation of Pennsylvania claimants for lands within 
 the seventeen townships of Luzerne county. The commissioners 
 are named and appointed by the act, without any intervention of 
 the Governor, except in his legislative capacity of approving the 
 act. These commissioners were in the nature of judicial officers, 
 exercising important and discretionary powers and judicial func- 
 tions; and although the constitutionality of many portions of that 
 act has been called in question > yet this has never formed an ob- 
 jection. Tliu enumeration of such appointments would be use- 
 less. It would be too much now, to pronounce that all this was 
 usurpation on the constitutional rights of the Governor, forbidden 
 by the Constitution, and void. In most cases of local appoint- 
 ments, thoy are made by the people, or by certain bodies of men 
 authorized by the law creating the office. This act and appoint- 
 ment bear date but four yeara after the adoption of the Constitu- 
 tion of the State. In the case of the Commonwealth vs. Doug- 
 lass, 1 Binney, 77, as early as the year 1803, it appears that Doug- 
 lass had been appointed an inspector of the prison of Philadelphia 
 in pursuance of law. The propriety or legality of the election 
 was disputed, but not the constitutionality of the law under which 
 it was made. Chief Justice Tilghman, in the case of The Common- 
 wealth ex rclalioni Reynolds vs. Bnssier, 3 Sergt. &L Rawle, 457, 
 says: it is understood, that in what I have said, I do not mean to 
 include certain officers, (so called, when that word is taken in its 
 largest sense,) of a local, limited, or corporate nature, which have 
 not been supposed to be comprehended in the Governor's power 
 of appointment. By the Constitution of Pennsylvania, art. 5, see. 
 2, it is declared, that the judges of the supreme court, and the 
 presidents of the several courts of common pleas, shall not hold 
 any other office of profit under the Commonwealth. Thomas 
 Cooper, while acting as a cornmissionei to settle the compensa- 
 tion to claimants to lands in Luzerne county, above referred to, 
 was appointed a president judge; and his acts as such commis-
 
 REPORTS. 31 
 
 sioner, after he qualified as such judge, were objected to in the 
 case of Shepherd vs. The Commonwealth, J Sergt. &, Rawle, 1 . It 
 was there decided, that the office of commissioner, which Judge 
 Duncan, in the case above referred to, said was in the nature of 
 a judicial office, exercising important and discretionary powers 
 and judicial functions, was not an office within the meaning of the 
 Constitution. 
 
 By the same Constitution, art. 1, sec. 18, no person holding 
 any office under the United States, or that Commonwealth, shall 
 be a member of either house of the Legislature during his contin- 
 uance in office. Charles Biddle, a member of the Senate of Penn- 
 sylvania, was appointed by the President of the United States, to 
 act as a commissioner to sign bills or notes, called treasury notes, 
 issued under the authority of the act of Congress, for which he re- 
 ceived a compensation. The question was brought before the 
 Senate, who decided that his seat was not thereby vacated; 1 
 Sergt. & Rawle, 10. The same Constitution declares the hold- 
 ing of offices or appointments under the Slate, incompatible with 
 holding or exercising offices or appointments under the United 
 States. Under this provision, together with the laws passed in 
 addition thereto, the Supreme Court of that State decided by a 
 majority, in the case of The Commonwealth vs. John Binns, 17 
 Sergt. & Rawle, 219, that the selection of an editor of a newspa- 
 paper to print the laws of the United States, by the Secretary of 
 State of the United States, in not conferring an office or appoint- 
 ment under the United States, incompatible with the office of Al- 
 derman of the City of Philadelphia. 
 
 The different acts of the Legislature of Pennsylvania respect- 
 ing the internal improvement system of that State, from 1825 to 
 1829, authorized the Governor to appoint the Canal Commis- 
 sioners; but by the act passed in 1829, the power of the Govern- 
 or to appoint them was revoked, and they were appointed, in pur- 
 suance of law, by the legislature. Although the board of com- 
 missioners was clothed with immense powers in the disbursement 
 of money, and extensive patronage, it is not, after a diligent re- 
 search, to be found in the books of reports, that the Governor's 
 rights or prerogative, under the Constitution, which authorized 
 him to appoint all officers, which officers are established by that 
 Constitution, or shall be established by law, were questioned, or 
 thai the constitutionality of the law under which the legislature
 
 32 REPORTS. 
 
 made the appointment, was brought to the attention of the courts. 
 It is true, that this power was afterwards restored to the Governor 
 by subsequent acts of the legislature, but the precedent remains. 
 
 It would be too tedious to refer particularly to all the cases that 
 have been decided in that State, by the people, the legislature, and 
 the courts, giving a construction to the term office, as understood in 
 the Constitution. Many cases, cited by the judges in their opin- 
 ions, in the causes above stated, and not mentioned here, are re- 
 ferred to. 
 
 The Legislative Assembly of this Territory seems to have put 
 the same construction on the term, office, in the organic law, at its 
 first session after the organization of the Territory. By an act ap- 
 proved on the 3d December, 1836, three commissioners were to 
 be elected by joint ballot of the Council and House of Represen- 
 tatives, whose duty was to cause the necessary public buildings 
 to be erected at Madison, for the accommodation of the Assem- 
 bly and other officers of the territorial government. The 
 treasurer of said board, to be elected under said law, was also to 
 give bond with security for the faithful discharge of his office. Un- 
 der this law commissioners were elected and qualified, as appears 
 by the public records. This is called an office, so is the commis- 
 sioner under consideration; so are those generally in the cases re- 
 ferred to; but it appears that they are not such officers as are con- 
 templated by the Constitutions referred to, or our organic law. 
 
 Motion for mandamus overruled. 
 
 STOW &, WELLS, for relator. 
 
 N &. ARNOLD, for respondent.
 
 REPORTS. 
 
 33 
 
 JOSEPH ROOKER, pPffin error, "| 
 
 NELSON^. NORTON, deptin error, \ 
 
 AND } Error to Racine county. 
 
 NELSON R. NORTON, pPJfin error, 
 
 vs. 
 JOSEPH ROOKER, deft in error, J 
 
 THE Court will not decide an act of the Legislature to be unconstitu- 
 tional, unless (he case is clear and manifest. 
 
 The statute of Wisconsin, authoring the district courts to refer certain 
 cases to referees, is not unconstitutional; and the district court may refer 
 such a case against the wili of either partj, and such a reference does not 
 violate the right of trial hy jury secured by the constitution. 
 
 The object of the constitution was to secure to every one a trial by his 
 peers, and this right is as well secured in the hands of sworn referees as a 
 common law jury. 
 
 A report of referees which reports a sum certain found to be due and the 
 testimony upon which the decision is based, is sufficiently certain, although, 
 it does not state the/acfo which they find, or show what particular claims 
 have been allowed or disallowed. 
 
 Partial failure of the consideration of a note, may be given in evidence 
 on the trial, where notice has been given of the defence intended to be set 
 up, but it cannot be given in evidence under the general issue without no- 
 tice. 
 
 A notice of special matter to be given in evidence under the genera) is- 
 sue, need not be as formal as a special plea: if it contains matter, which, 
 if embodied in a formal plea, would be decided on general demurrer to be 
 abar to the action, and is set out so certain that the plaintiff is apprised of 
 the fact and not taken by surprise, it is sufficient. 
 
 Although unliquidated damages cannot be set off against a certain de- 
 mand, yet where the damages arise from a breach of the plaintiff's con- 
 tract which formed a part of the consideration of the note sued on, they 
 may be given in evidence under a notice, for the purpose of reducing the 
 plaintiff's damages. 
 
 Where referees report a sum certain to be due to the plaintiff, and also 
 make a conditional report, stating that they find a sum certain to be due 
 from the plaintiff to the defendant which in their opinion cannot, according 
 to law, be allowed in the same action, but that if their opinion of the law 
 is erroneous, then the sum found to be due to the defendant is to be deducted 
 from the amount found in favor of the plaintiff, the Court may, if the mat- 
 ters found in favor of the defendant can be legally taken into considera- 
 tion, confirm both reports and enter judgment for the balance in favor of 
 the plaintiff. 
 
 A promise by the defendant to pay a promissory note, not negotiable, to 
 an assignee, although made unconditional, does not preclude the defend- 
 ant from setting up a failure of consideration in a suit subsequently brought 
 by the payee when there is nothing to show that the suit is for the benefit 
 of a third person. 
 
 These were cross writs of error brought to reverse a judgment 
 of the Racine District Court. 
 
 Norton brought an action of assumpsit against Rooker in the 
 
 5
 
 34 REPORTS. 
 
 court below, upon a promissory note for $464, dated at Chicago^ 
 21st July, 1838, payable one year after date, in boots and shoes 
 to be .delivered at Foxville, in Racine county. The declaration 
 also contained the common money counts accompanied with a 
 copy of the note and a bill of particulars. Rooker pleaded the 
 general issue, and gave notice of special matter to be given in 
 evidence, to wit: that the note sued on was given without consid- 
 eration, and was obtained by fraud, and deceitful misrepresenta- 
 tions of the plaintiff; set off with a bill of particulars, in which he 
 claimed 81000: for Norton's failing to fulfil a verbal contract to 
 finish certain buildings on Rooker's farm, and dig and wall a cel- 
 lar under his house. 
 
 The District Court ordered the case to be referred to three 
 referees, to which order of reference Rooker objected. 
 
 The referees reported to the court, that there was due from 
 Rooker to Norton the sum of $300, besides costs. They also re- 
 ported, by way of supplement, that there was due from Norton to 
 Rooker 
 For damages for not digging and completing cellar according to 
 
 contract, $200 00 
 
 For not finishing wood-shed and granery, 41 00 
 
 For not finishing barn, and damage, 10 50 
 
 Amounting in all to the sum of $257 50: that the allowance 
 of these sums was objected to by Norton, on the ground that they 
 were not proper subjects of set-off, which objection was sustained 
 by the referees; but they say, that if they erred in that decision, 
 then the sum of $257 50 is to be deducted from the sum found 
 in favor of Norton, who is to recover the balance. The referees 
 also reported the evidence taken before them, 
 
 Rooker excepted to the report of the referees; the substance 
 of which exceptions is embodied in his assignment of errors. 
 
 The District Court confirmed the report and supplement, and 
 gave judgment in favor of Norton for the balance, after deducting 
 the claim of Rooker for damages as found in the supplement of 
 the referees. Both parties were dissatisfied with the decision of 
 the court: Norton contending that he was entitled to his whole 
 claim as found by the referees without any deduction, and Rooker, 
 that the whole judgment should be reversed, and each party has 
 brought the case into this court to correct the errors of the court 
 below.
 
 REPORTS, 35 
 
 Hooker assigned the following errors in the proceedings of the 
 District Court. 
 
 1. The court erred in referring this cause to referees against 
 the consent of the plaintiff in error, (defendant below,) the action 
 being a common law action. 
 
 2. The court erred in ruling that it was not necessary for the re- 
 ferees to report the facts as found by them in the trial of the cause. 
 
 3. The court erred in ruling that it was not necessary for the 
 referees to make report of what they had allowed of plaintiff's 
 claim, or disallowed, or what they had allowed or disallowed of 
 the claim of set off of the defendant below. 
 
 4. The court erred in ruling that the referees decided proper- 
 ly in finding tint misrepresentations, as proved, did not avoid the 
 note in suit. 
 
 5. The court erred in accepting the report of the referees, and 
 entering judgment thereon. 
 
 And Norton made the following assignment of errors en his 
 part: 
 
 The damages which the defendant sustained, as icported by the 
 referees, ought not to have been deducted from the plaintiff's de- 
 mand for the following reasons; 
 
 1. By the agreement of the parties, the payment of the note 
 was a condition precedent to the doing the work for the not doing 
 of which the defendant complains that he has sustained damages. 
 
 2. The defendant having once promised to pay the note in the 
 hands of an assignee, was ever after barred from setting up a want 
 or failure of consideration. 
 
 3. Partial failure of consideration cannot be set up in defence 
 of a note. 
 
 4. Unliquidated damages cannot be set off. 
 
 5. There were fatal variances between the contract proven 
 and the one pleaded. 
 
 The causes were argued separately. In the case of Rooker vs. 
 Norton, TOWSLEE for plaintiff in error contended: 
 
 1. The order of the court below, referring the cause to re- 
 ferees, against the will of Rooker, was erroneous. This is a com- 
 mon law action, and the value in controversy exceeds twenty dol- 
 lars. The defendant below insisted upon a trial by jury. The 
 right to this is secured to him by the constitution of the United 
 States, and it is not competent for the legislature and the courts
 
 36 REPORTS. 
 
 to substitute another mode of trial. See Art 7, of the amend- 
 ments to the constitution, 1 Aiken, 148. 
 
 2. The report of the referees ought to have been set aside by 
 the court below. The report ought to have stated the facts, and 
 not the testimony at length. The report should be like a special 
 verdict of a jury, to enable the court to apply the law to the facts, 
 and not a mere report of evidence without any statement of facts 
 established by it. 1 Aiken's Rep. 148; id. 359. 1 Vermont 
 Rep. 250; 3 do. 359; id. 359. Law Reporter, Vol. 1, No. 2. 5 
 American Digest, 52, 53. 
 
 3. The report should have stated the accounts between the 
 parties, and shown what had been allowed or disallowed of each. 
 A report showing a gross sum to be due to either, without stating 
 the facts upon which the decision is based, is erroneous. The 
 referees should not report a gross sum in the nature of a general 
 verdict, for they are not the jury; they are only auditors or mere 
 officers of the court, and cannot decide the cause, but only pie- 
 pare the case for the judgment of the court. 1 Aiken's Rep. 359. 
 
 3 Vermont Rep. 389; id. 597. Law Reporter, Vol. 1. No. 2. 
 
 4 Cranch, 307. 6 Cranch, 9 to 29. 
 
 4. Fraudulent representations, or the concealment of defects 
 in the property sold, will avoid all contracts, and the defence may 
 be made under the general issue. If it was proven befere the re- 
 ferees that ihe note sued on was obtained by false and fraudulent 
 representations, or that Norton concealed material defects in the 
 property sold to Rooker, for which the note was given, or misrep- 
 resented its quality and value, the referees ought to have disal- 
 lowed the whole of Norton's claim. Com. on Contracts, 35, 66, 
 207, 209. 12 East. 637. 2 Saund. Plead. & Ev. 907. 3 John. 
 280. Cowen &, Hill's Notes to Phil. Ev, part 2, page 1475. 
 Sugden's Vendors and Purchasers, 5. 
 
 The proof in this case shows that Rooker wished to purchase a 
 farm of a particular description, and possessing particular advanta- 
 ges; that Norton represented that he had one to sell of just such 
 description, which he thereupon sold to Rooker, for which the 
 note in suit was given in part, and that these representations were 
 false; Norton is therefore not entitled to recover. 
 
 MARSHALL M. STRONG, for deft in error: 
 
 The statute of the Territory authorizing the courts to refer ca- 
 ses, is perfectly constitutional. The meaning of the article in
 
 REPORTS. 37 
 
 the constitutution that has been referred to is, that a man shall be 
 tried by his peers, and not by persons permanently connected 
 with the court, and the number is not material. Our statute is 
 copied from the statute of New York, (see 2 Revised Statutes N. 
 Y. 384,) which has been in force in that state since 1812, and its 
 constitutionality has never been questioned there. Again, by the 
 laws of New York, in cases before a justice of the peace, where 
 the judgment is under $25, no appeal can be taken. A justice's 
 jury consists of six persons. Thus cases where the amount of 
 the judgment is between $20 and $25, although they come 
 under the constitutional provision relied upon here, are tried by 
 ajury of six, a number unknown to the common law as composing 
 a jury. This law has also the sanction of long standing without 
 its validity being questioned. Referees, under the statute, are 
 sometimes called a legislative jury; they answer every purpose, 
 and secure every right that could be effected by a common law 
 jury. 
 
 The report of the referees is not liable to the objection em- 
 braced in the second and third errors assigned. The form of the 
 report is adopted precisely from Yates' Pleading, p. 799. The 
 practice that has been pursued in this case in relation to the re- 
 ference, prevails in New York under a similar law. Yates' Plead- 
 ing, 339. Graham's Practice, 576. 4 Wendell, 199. The ca- 
 ses that have been referred to by the plaintiff's counsel, from 
 Cranch, are where auditors were appointed in equity causes, and 
 do not apply to this case; and those in the Vermont Reports arose 
 under the peculiar provisions of the statute of that state, which is 
 not analogous to ours. 
 
 The fourth point assumed is not sustained by the evidence. 
 The proof shows that Rooker spent several days at Norton's house 
 on the farm, and examined it for himself before he purchased; 
 and in such case the rule of caveat cmptor applies. But if the 
 contract is void, it is void in toto. Rooker cannot keep the farm 
 and enjoy it for years and avoid paying for it. 
 
 MOSES M. STRONG, in conclusion: 
 
 One of the most important points in the case, is the one first 
 suggested by (he plaintiff in error. To decide upon the constitu- 
 tionality of a law, is always a grave matter in the consideration of 
 the court; but when an act of the legislature is shown plainly to 
 conflict with the constitution, the court will not hesitate so tode-
 
 38 REPORTS. 
 
 cide. The right of (rial by jury, has always been considered one 
 of the most valuable rights secured to American citizens. This 
 right was not created or granted by the constitution; it existed 
 before the constitution, as the birth-right of every American, and 
 the constitution only confirms and secures the right. If we give 
 a common sense construction to the 7th article of the amend- 
 ments, we must como to the conclusion that the act of the legis- 
 lature authorizing the courts to substitute referees instead of a 
 jury agninstthe wiil of a party, violates its provisions. The re- 
 ferees have been called a legislative jury. It matters not by what 
 name they are called, they are not the jury that the party had a 
 right to, to try his cause, when the constitution was adopted; they 
 do not possess any of the attributes of a jury; the party has not 
 the benefit of a trial before the court and jury together, and the 
 instructions of the court to the jury upon the law of the case. 
 
 The objections to the report itself are based upon the supposi- 
 tion that tho order of reference is legal. Admitting the order to 
 have been legally made, slill the report is bad, and ought not to 
 have been confirmed by the court. The referees have reported 
 testimony when they should have reported facts; they have left 
 the court to ascertain the facts from the testimony, and the court 
 became the judge of tiic facts as well as the law. If they come in 
 place of a jury, arid are to ba considered as a jury for all legal pur- 
 poses, they ought to have decided what facts were proven by the, 
 testimony. 
 
 The case of Norton vs. Hooker coming up for argument, MAE- 
 SHALL M. STRONG, for plaintiff in error, said: 
 
 By the agreement of the parties, the payment of the note was 
 a condition precedent to the performance of Norton's contract. 
 Until the note was p~iid, Hooker could not require performance 
 from Norton. Chitty on Bills, 87. American Liw Library, 33. 
 At most, the agreements were independent of each other, and were 
 the subjects of separate actions, and not of set-off against each 
 other. 
 
 Partial failure of consideration cannot be set up in defence in 
 an action upon a promisory note. This is the universal rule of 
 law in England, and wherever it has been departed from- in the 
 United States, it has been under particular statutory provisions: 
 Reed vs. McAllister, 8 Wendell, 109. Bailey on Bills, 534 to 
 544. Chitty on Bills, 8. 5 Cowen's Rep. 494. 1 Littell's Rep.
 
 REPORTS. 39 
 
 233. 5 do. 249. Harrison's Digest, 524. Chitty on Bills, 
 88, 89. 
 
 The express promise of Rooker to pay the note in the hands of 
 Sn assignee, precluded him from afterwards setting in defence 
 any want or failure of consideration. This promise amounted to 
 a legal admission of the sufficiency of the consideration, and estop- 
 ed him from the defence that has been made in the case. 2 Cow- 
 en's Treatise, 740. Bigelow's Digest, 705. 
 
 In the court below, the defence set up under Norton's contract, 
 Was not in mitigation of damages, but was under a noiice of set- 
 off, claiming unliquidated damages. The principle that unliqui- 
 dated damages cannot be set off, is too well settled to need argu- 
 ment. 8 Wendell, 109. Stat. of Wisconsin, 278. Again, the 
 notice of special matter is bad. The rule in New York to test 
 the sufficiency of a notice of this kind, is to see if it would be good 
 on general demurrer if it were embodied in the form of a special 
 plea. 10 John. Rep. 140. If the notice in this case is tested by 
 this rule, it cannot be sustained. 
 
 The contract proven before the referees, was materially differ- 
 ent from that slated in the notice. The defendant below ought 
 to have been confined in his proof to the matters stated in his no- 
 tice. 10 John. Rep. 140. Cowen's Treatise, 557, 553. 1 Cow- 
 en's Philips, 207, 209. 2 do. 509. 
 
 TOWSLEE, for deft in error: 
 
 The decision of ihe court upon the questions now under con- 
 sideration, was altogether proper under the circumstances of the 
 case. The facts have not been correctly stated in argument. The 
 proof shows that instead of the payment of the note being a condi- 
 tion precedent to Norton's performance, Norton was to perform 
 his contract six months before the note became due, and that his 
 performance was a condition precedent to the payment. 
 
 Although as a general principle, unliquidated damages cannot 
 be set-off, yet where the damages arise from the non-performance 
 of a condition precedent in a contract that entered into the con- 
 sideration of the defendant's promise, they may be brought in and 
 allowed. 
 
 Under the revised statutes of New York, which the counsel for 
 the plaintiff in error admits, in this respect, to be in affirmance of 
 the common law, partial failure of consideration rnay be given in' 
 evidence upon the trial to reduce the plaintiff's recovery. 1 Cow-
 
 40 REPORTS. 
 
 en's Treatise, 174. The defence in this case was not insisted 
 upon on the trial as a set-off, but as a partial failure of considera- 
 tion, and as such was properly allowed. 1 Cowen's Treatise 174, 
 176. Cowen & Hill's notes to Phil. Ev. 1475. 
 
 The notice of special matter need not be as particular as a spe- 
 cial plea. The notice in this case was understood by the plain- 
 tiff, and accepted as sufficient; no objection was made to it at the 
 trial, and it is too late now to except to its sufficiency. 
 
 MOSES M. STRONG, in continuation: 
 
 All the objections taken by the plaintiff in error are based upon 
 the supposition of a certain state of facts. The record only shows 
 that the referees state that particular witnesses testified to certain 
 facts. This is not showing to the court that the facts existed, nor 
 did it authorize the district court to decide that they did exist. 
 
 WELLS, in conclusion: 
 
 The case resolves itself into two points : 1st. can the defendant 
 set up a partial failure of consideration in defence? and 2d. can 
 he avail himself of it by way of set-off? In this case the claim of 
 the defendant was for unliquidated damages, which cannot be set- 
 off. The authority read from Cowen, is only the dictum of the 
 compiler, and that does not support the position assumed. The 
 question is, did the District Court err? or did the referees eir? 
 The referees reported a sum certain in favor of the plaintiff,- but 
 if the law should allow the unliquidated damages to be set-off, 
 then, according to their supplemental report, a certain sum should 
 be deducted from the plaintiff's demand. The court allowed the 
 set-off, and we think it erred in doing so. It ought to have ren- 
 dered judgment on the absolute report, and rejected the supple- 
 ment and set-off. Lawrence vs. Niles, 10 John. Rep. 141. 
 
 Judge IUVIN delivered the following opinion of the court in 
 both cases: 
 
 JOSEPH ROOKER vs. NELSON R. NORTON. 
 
 This cause came up on error to the judgment of the Dislrict 
 Court of Racine county given at the November term of said court 
 for 1841. 
 
 The action was assumpsit instituted by Nelson R. Norton, the 
 defendant in error, against Joseph Rooker, the plaintiff in error, 
 upon a promissory note, to be discharged by a payment in shoes 
 *and boots, and an account, and declared on with the usual 
 counts in that form of action; to which the defendant inter-
 
 REPORTS. 41 
 
 posed a plea of the general issue, with a notice of set-off and spe- 
 cial matter to be given in evidence. 
 
 In the progress of this cause, it appears that the court referred it 
 to referees, in pursuance of the authority contained in the 84th 
 section of " an act concerning proceedings in courts of record," 
 (Statutes of Wisconsin, page 209,) by which it is provided that 
 " whenever it shall appear probable in any cause depending in any 
 District Court, that the trial of the same may require the exami- 
 nation of a long account on either side, the said court, at any time 
 after issue joined, in such case, may refer such case, by rule of 
 court, to referees, who shall be three such persons as the parties 
 rnay agree upon, and if they shall not agree the said court shall 
 nominate them, which referees shall hear and examine the mat- 
 ters in controversy, and report thereon," &c., and upon which re- 
 ference report was afterwards made and accepted by the court, 
 and judgment given thereon. 
 
 It further appears, that the plaintiff in error objected to the re- 
 ference of the cause, on the ground that he had aright to trial by 
 jury, but which objection was overruled; and it further appears 
 that the defendant objected to the acceptance of the report of the 
 referees for reasons stated in his bill of exceptions, the substance 
 of which is embodied in his assignment of errors in this court, 
 which is as follows: 
 
 " 1. The court erred in referring this cause to referees, against 
 the consent of the plaintiff in error, the action being a common 
 law action. 
 
 2. The courl erred in ruling that it was not necessary for the 
 referees in this cause to report the facts as found by them in the 
 trial of the cause. 
 
 3. The court erred in ruling that it was not necessary for the 
 referees to make a repoit of what they had allowed of the plain- 
 tiff's claim or disallowed, or what the referees had allowed or dis- 
 allowed of the claim of off-set of the defendant below. 
 
 4. For that the court erred in ruling that the referees had de- 
 cided properly in finding that false representations, as proved, did 
 not avoid the note in suit. 
 
 5. The court erred in ruling that the report of the referees 
 be accepted, and entering judgment thereon." 
 
 The first error assigned is upon the construction of the 7th ar- 
 ticle of the amendments to the constitution of the United States, 
 
 6
 
 42 REPORTS. 
 
 which is, that " in suits at common law, where the value in contro* 
 versy shall exceed twenty dollars, the right of trial by jury shall 
 be preserved," &c., it being contended by the counsel for the 
 plaintiff in error, that the law of the Territory before referred to, 
 is in violation ofHhis portion of the constitution. 
 
 To justify a court in declaring a law of the legislature unconsti- 
 tutional, the case mugt be clear and manifest. 12 Sergt. & 
 Ra\vle,330. 3 Sergt. &. Rawle, 109. Is this such a case? If 
 we be permitted to take the uncontradicted action of the different 
 states on this subject indulged in, in some instances, foi a quar- 
 ter of a century, as an answer to this question, we should say that 
 it is not; for, in some shape or other, has the practice of referring 
 suits to referees existed in some of the states, perhaps, ever since 
 the adoption of the federal constitution, and in states, too, where 
 similar provisions are found in the state constitution. 
 
 In the state of New York, where the provisions of the law, in 
 this respect, are similar to those of our statute, the practice has 
 existed for upwards of thirty years. In Pennsylvania it has exist- 
 ed, in even a stranger form, for many years, under a clause in the 
 state constitution, similar to that of the United States constitution 
 in relation to trial by jury; and so free from constitutional objec- 
 tion is the subject there considered, that the court refused to con- 
 sume time in hearing the question argued. 6 Sergt. & Rawle, 
 240. 1 Binney, 416. 
 
 That a reference of a cause to referees to hear and examine 
 and report thereon, is not a trial by jury in the usual acceptation of 
 the term jury, may not, perhaps, be doubted; nor is it a violation 
 of the constitution of United States to have a jury differing from 
 that known at the common law, which was composed of the num- 
 ber of twelve, as, perhaps for different purposes, as the legislature 
 might think best, they have, (and unquestioned as to constitution- 
 ality,) been composed of numbers varying from six to twelve. 
 
 The principal object of the institution of trial by jury, seems to 
 have been to give to persons whose rights are to be inquired into, 
 the right to be tried by their peers . If that be true, then are those 
 rights less secure when tried by peers, not, it is true, called jurors, 
 but referees, who are as solemnly sworn as jurors? We cannot 
 imagine that they are. But however differently the mind may 
 speculate upon this subject, we cannot see that this is such a clear 
 case of unconstitutionality as to justify a reversal of the decision
 
 REPORTS. 40 
 
 of the District Court on that point,, and declare the law void ; par- 
 ticularly, too, when we know that all the errors committed by 
 those referees may be as fully corrected by the court as though 
 the trial had been by jury before that court. 
 
 Under the second error assigned, it was contended, that as the 
 referees.had reported to the court all the evidence in the case, as 
 well as their conclusions from it, they exceeded their powers, 
 (deeming them to be to report the facts and not the testimony,) and 
 for that reason the defendant below objected to the acceptance of 
 their report. How far this objection is good, we shall presently 
 see. It is true, that had the referees made "report of what they 
 allowed of plaintiff's claim, or disallowed; or what they allowed 
 or disallowed of the claim of off-set of the defendant below," as 
 assigned in the third assignment of error, and here noticed in con- 
 nection with the second, it might have been a source of further 
 satisfaction to the parties; but had they stopped with such a re- 
 port, they would have left undone a much more important thing, 
 that is, left the court without the fullest means of ascertaining 
 whether error and injustice had found their way into the proceed- 
 ings; and, as there is nothing in the law which requires a report 
 of the facts alone, we do not see that there was error in the report 
 which reported to the court the testimony as well as the sum as- 
 certained by them to be due from the defendant to the plaintiff; 
 and that they were bound to find the sum due, is evident from the 
 law itself, which is, " and if the report of the referees or a major- 
 ity of them, shall be confirmed by the court, and any sum be 
 thereby found for (he plaintiff, judgment shall be entered for the 
 same with costs," &,c. We cannot therefore see that there was 
 error in the decision of the court in these particulars. 
 
 The fourth error assigned, and which, upon an examination of 
 the evidence, we cannot sustain, very conclusively shows that 
 there was no impropriety in that part of the report of the referees 
 which puts the court in possession of all the testimony. 
 
 Finding no objection thus far to the decision of the court be- 
 low, and seeing nothing in the fifth assignment of error beyond 
 mailers already noticed, we affirm the judgment of the District 
 Court, with the costs of this case; but as it appears that both plain- 
 tiff and defendant were dissatisfied with the judgment of the Dis- 
 trict Court, as both are here or. separate writs of error, and both 
 now before the court, we will now consider the errors as assigned.
 
 44 REPORTS. 
 
 NELSON R. NORTON, v. JOSEPH ROOKER. 
 
 It appears, as has been already stated, that the suit was brought 
 on a note payable in boots and shoes, and in part consideration of 
 an improvement on public lands which was sold by plaintiff to de 
 fendant, and as a part of the contract, plaintiff was to dig and com- 
 plete a cellar, to finish a woodshed, granery and barn, previous 
 to the lime of payment of the note. The time fordoing the work 
 and making payment of the note was afterwards, by agreement of 
 the parties, extended. With defendant's plea of general issue, 
 he gave notice that he would offer in evidence that the note was 
 given without any consideration; that he claimed as a set-off a 
 large sum of money, to wit: the sum of one thousand dollars, for 
 plaintiff's failing to fulfil a verbal contract to finish certain build- 
 ings situate on defendant's farm, in Burlington, and for failing to 
 build a cellar under the house situate on defendant's farm. In 
 the account filed by defendant in set-off, is contained the items: 
 Damages for not finishing barn according to contract, 8100; dam- 
 ages for not finishing wood-house according to contract, $100; 
 for failing to stone up my cellar, and finish the same, to my dam- 
 age $250. Although the notice is very inartificially drawn, we 
 cannot say, that it is so imperfect as to have justified the referees 
 in excluding the evidence. 
 
 When it is remembered that this very matter is part of the con- 
 sideration of the note, and for which it was brought into existence, 
 we think that it was sufficient to notify the plaintiff of the defence 
 intended to be setup by defendant. This notice, though not re- 
 quired to be, in the strict technical form, a plea, (8 John. Rep. 
 455,) must, nevertheless, contain all the facts necessary to be 
 stated in a special plea; 13 John. Rep. 475; 10 John. Rep. 142; 
 and 8 Wendell, 590. It must also state truly the facts intended 
 to be given in evidence, 14 John. Rep. 89. Where notice was 
 in general terms, that the defendant would prove that there were 
 divers judgments, at the time of the sale of the land, outstanding 
 against the plaintiff, which were a lien on the land, and which the 
 defendant was obliged to pay, and did pay, in order to prevent a 
 sale of the premises, without specifying any particular judgment, 
 Chancellor Kent, in 20 John. Rep. 746, says, it would be unrea* 
 sonable and unjust, that the plaintiff at the trial should shut out 
 the defence under the pretence dial the defendant did not tell 
 him in the notice all the particulars of these judgments, when they
 
 REPORTS. 45 
 
 must have been matters of record, and the defendant stood ready 
 to prove the judgments by the record, and to produce the execu- 
 tion thereon, and prove the payment of them. On the same prin- 
 ciple, in this case, the note in question, and the matters in de- 
 fence, relate to the same transaction between the parties, and the 
 plaintiff must have known it sufficiently without its being formally 
 stated \i} the notice. 
 
 The referees made a report in favor of the plaintiff, but reduced, 
 by special report, under conditions of law, the plaintiff's claim, on 
 proof of facts referred to in the notice, and on which the court 
 rendered judgment, after objection on part of the plaintiff, that 
 partial failure of consideration could not be given in evidence and 
 entertained, which is the question now to be considered. On this 
 point, there are conflicting opinions, but under the more recent 
 and present practice of the courts, with a view to prevent circuity 
 of action, it is generally allowed. In the Supreme Court of the 
 United States, it is decided in some cases not to be a defence, 
 which are collected in a note in 2 Peter's Cond. Rep. 218; but 
 on examination, these decisions were, probably, mostly made on 
 the general issue. In 2 Wheaton's Rep. 13, it is decided by the 
 court not to be a defence under the general issue. So this court 
 decides. To give evidence of a partial failure of consideration, a 
 notice must accompany the plea of general issue. 6 Binney, 198. 
 
 1 Sergt. & Rawle, 477. 8 Sergt. & Rawle, 178. 8 Cowen, 31. 
 
 2 Wendell, 431. 12 Wendell, 246. 3 Wendell, 236. 4 Wen- 
 dell,483. Graham's Practice, 23 1,232. 7 Cowen, 322. 3 M'- 
 Cord, 169. 1 Cowen's Treatise, 174. Bailey on Bills, Boston 
 Ed. of 1826, p. 340, in notes. 3 Kent's Com. 78, 79, 80. 
 
 It is true, that unliquidated damages cannot he off-set, but this 
 is evidence of matters in diminution of the plaintiff's demand, 
 arising out of the same transaction, and not technically an off-set, 
 although defendant called it so in his notice: yet this is mere 
 matter of form, and not of substance, and does not vitiate the no- 
 tice, and particularly does it not vitiate in this form of action, 
 which is in its nature equitable. 
 
 The third error assigned, that the defendant having once pro- 
 mised to pay the note in die hands of an assignee, was ever after 
 barred from setting up a want or failure of consideration, does not 
 appear to have much in it. This nete was not negotiable, and 
 it does not appear that the suit was for the use of a third person,
 
 46 REPORTS, 
 
 but on the contrary, all off-sets and accounts between the parties 
 seem to have been gone into. There is nothing appearing on the 
 record but that the plaintiff was the actual and legal owner of the 
 note at the time of the suit. The evidence affords sufficient ex- 
 planation of (he circumstances to settle ihe ownership of the note 
 in the plaintiff. We are therefore, in this branch of the case, con- 
 strained to;iffirrn the judgment of the District Court, with costs. 
 
 II. B. TOWSLEE and MOSES M. STROXG, for Rooker. 
 
 MARSHALL M. STRONG and H. N. WELLS, for Norton. 
 
 EX JAMES G. KLNG. \ Error < Roek 
 
 Is proceedings under the statute for partition of veal estate, the petiHon- 
 er may brine: a writ of error to reverse the judgment ; and if the proceed- 
 ings arc erroneous, the judgment will be reversed, that the errors may be 
 corrected, 
 
 James G. King filed his petition in the Rock District Court, 
 praying for the partition of certain lands lying in Rock county. 
 The commissioners appointed by the court, made partition of 
 lands which did not correspond with the petition, and some of 
 which was not embraced in it; and the division was not made ac- 
 cording to law or the respective interests of the parties. The 
 mistake was not discovered, either by the court or counsel, during 
 the term, and the report of the commissioners was confirmed and 
 judgment entered accordingly. King, the petitioner, brought this 
 writ of error to reverse the judgment, in order to have the pro- 
 ceedings perfected in the court below. 
 
 WIIITOX, for King, briefly stated the case, and showed that the 
 errors had arisen purely through mistake; that there was no oppo- 
 sition lo the petition, and that it was for the benefit of all persons 
 interested to reverse Hie judgment, that the District Court may be 
 enabled to make partition of the premises described in the peti- 
 tion, according to law.
 
 REPORTS. 47 
 
 Chief Justice DUNN delivered the following opinion of the court : 
 
 In this case the petitioner, James G. King, filed his petition for 
 the partition of certain real estate situate in the county of Rock, 
 in the District Court of Rock county, at October term of said 
 court, A. D. 1841. At said term commissioners were appointed 
 to make partition of the land described in said petition. At the 
 April term of said court, 1842, the said commissioners made their 
 report to the said court, in which they gave the same quartet sec- 
 tion of land to two persons entire, and not by moiety, and one 
 quarter section to the petitioner which was not described in his 
 petition. The District Court rendered judgment, that partition 
 be made of the premises according to said report. 
 
 It is unnecessary to perplex this question with reasons, as it is 
 obvious that the report was defective and erroneous, and conse- 
 quently the judgment of the court thoreonj which must have aris- 
 en from the usual hurry of business at the close of a protracted 
 term of court, when the same strict and minute examination of 
 lengthy reports is not made, as when there is more time and less 
 press of business. 
 
 The judgment of the District Court is therefore reversed, and 
 the case remanded to the said District Court, for such furtl'er pro- 
 ceedings therein as may be legal and proper. 
 
 WHITON, for King.
 
 48 REPORTS. 
 
 JOHN GARDNER & ~\ 
 
 ISAAC Z. WHITAKER, plP/t in error, \ 
 
 vt. } Error ly Grant county , 
 
 The BOARD OB' COMMISSIONERS of the coun- | 
 ty of GRANT, de/Hs in error. J 
 
 As a general principle, after a court has adjourned for the term, it has 
 no power to amend or correct the record of the term. If the record is er- 
 roneous, it can only be corrected by writ of error. 
 
 The statute of amendments does not extend to the correction of errors 
 in thejudgment after the adjournment of the term p.t which the judgment 
 was rendered. 
 
 At the March term, 1840, of the Grant District Court, Gardner, 
 one of the plaintiffs in error, was convicted of an assault with in- 
 tent to kill, and was sentenced by the court to pay a line and the 
 costs of prosecution. By an arrangement with the District At- 
 torney, he, together with Whitaker, the other plaintiff in error, 
 came into court and confessed judgment in favor of the county 
 commissioners, in an action of assurnpsit, for the amount of the 
 fine and costs, upon which judgment execution was stayed for a 
 specified time by agreement of the parties. At. the September 
 term, 1841, of said District Court, the plaintiffs in error made a 
 motion to amend the record of the judgment by confession, by in- 
 serting therein the consideration and reasons for the confession. 
 The District Court overruled the motion, to which decision ex- 
 ceptions were taken, and the facts sought to be placed upon the 
 record by the amendment asked for, were made a part of the bill 
 of exceptions. This writ of error is biought to reverse the judg- 
 ment by confession. 
 
 The following assignment of errors was made in the record 
 from the court below. 
 
 " 1. The court erred in overruling the motion to amend the re- 
 cord: 
 
 2. The District Court erred in rendering the judgment which 
 this writ of error is brought to reverse: 
 
 First. Because the only consideration of the judgment was the 
 compounding of a felony, for which there had been a conviction 
 and sentence. 
 
 Second. The judgment is not authorized by law.
 
 REPORTS. 49 
 
 Third. The judgment is against good policy. 
 
 Fourth. The judgment is without consideration and void." 
 
 MOSES M. STRONG, for plaintiffs in error: 'This case is not like 
 any to be found in the books. It must depend upon the applica- 
 tion which the court will make of the general principles of law to 
 the facts. We contend that the District Court erred in permit- 
 ting the record of the judgment of confession to b made. If we 
 are correct in this position, it will hardly be necessary to notice 
 the other errors assigned. It is a well established principle of 
 law, that all contracts and agreements entered into for the pur- 
 pose of compounding a penal act, are against public policy, and 
 void; 4 Black. Com. 133, 136; The People vs. Bishop, 5 Wen- 
 dell, 111. Gardner had been convicted of a felony, and had been 
 sentenced by the court. The judgment by confession, although 
 not compounding the felony, was similar in its principles and 
 worse in its consequences; it was compounding the sentence of 
 the court. The pardoning power is vested by law in. the Govern- 
 or alone. After sentence, he only can relieve the convict. Nei- 
 ther the District Attorney, nor the County Commissioners, have 
 any thing to do with the matter, and their attempting to relieve 
 him from punishment by taking a security for the penalty, has no 
 authority of law to sanction it. If a bond be given which is against 
 the policy of the law, it may be avoided. A judgment confessed, 
 as in this case, that is not only without any lawful consideration, 
 but against policy, ought for the same reason to be set aside. 
 
 It will probably be insisted, that this court cannot look beyond 
 the record of the judgment, or inquire into the facts upon which it 
 was rendered. If such should be the opinion of the court, there 
 is an end of the case. But the facts are made a part of the re- 
 cord by the bill of exceptions, and I put the question to this court; 
 if the case were now here as an original proceeding upon the 
 same slate of facts, would such a judgmeat be allowed to be en- 
 tered? If the court is not prepared to answer affirmatively, then 
 the judgment must be r.eversed. 
 
 DUNN, for def 'ts in error: 
 
 The judgment by confession estops the plaintiffs from alledging 
 ought against it, or reversing it on error. The only remedy 
 against such a judgment is by bill in chancery, showing fraud or 
 mistake in procuring it; a-nd these are the only grounds upon 
 which even equity can afford relief. When a judgment is confes- 
 
 7
 
 50 REPORTS. 
 
 sed, there is an end of the matter so far as the courts of law are 
 concerned. 
 
 BURNETT, for same parties: 
 
 If this court can go back behind the judgment, and inquire into 
 the legality of the consideration, (a principle that is not admitted,) 
 the record does not sustain the position that has been assumed. 
 It does not appear that Gardner was committed until the fine and 
 costs should be paid, as a part of his punishment. The District 
 Attorney may have chosen to take a capias pro fine against him, 
 and the court may have very properly awarded it. In many cases 
 this would be the better course for the public and the public offi- 
 cers, where a pecuniary fine is all fhe penalty inflicted", as in this 
 case. Suppose him in custody under a capias for the sum impo- 
 sed; any person may become his security for it upon time, if ac- 
 ceptable to the authorities entitled to receive it. By such an ar- 
 rangement the fine itself becomes discharged, and that is a suffi- 
 cient consideration for any undertaking by him and his securities 
 to pay the money at a future day; and this is no compounding of 
 felony. But the court cannot go into an examination of these 
 matters. As has been correctly stated, by confessing judgment, 
 the plaintiffs are estopped from alledging errors in the judgment; 
 the confession amounts in law to a release of errors; and it would 
 be without precedent or reason, to reverse a judgment because 
 the consideration upon which it was rendered is not spread upon 
 the record. 
 
 We contend further; that the District Court had no power to 
 amend the record at the time when the motion was made, and 
 that to have done so would have been error. Tiie motion was 
 made at the third term after the confession of judgment. The 
 record was then out of the power and control of the court, so far 
 as the form and effects of previous judgments are concerned. 
 During the term, the record of all the proceedings of the term is 
 entirely under the control of the court for amendments and cor- 
 rections. For such purposes, the law considers the whole term 
 as but of one day. But after the final adjournment, this power is 
 at an end, and the court can never go back to previous terms and 
 amend and alter the record of its judgments. There would be no 
 stability in records if this were the case. The statute of amend- 
 ments, broad as it is, does not authorize the amendment sought 
 by the motion.
 
 REPORTS. 51 
 
 Opinion of the Court, by Judge IRVIN. 
 
 This cause came into this court on a bill of exceptions taken to 
 the decision of ihe District Court of Grant county at the Septem- 
 ber term for 1841 . 
 
 Upon an examination of the transcript of the record, it appears 
 that at the March term of said court for 1840, the said Gardner 
 and Whiiaker appeared in court, and entered a judgment by 
 confession, in an action of assumpsit, in favor of said Board of 
 Commissioners, for two hundred and thirty-two dollars and the 
 costs of suit; and at the said September term of said court, they 
 filed a motion, for reasons therein stated, to amend the record of 
 said judgment by inserting.therein the true consideration of the 
 judgment, which motion was overruled, and exceptions thereto 
 taken. 
 
 The only point that presents itself for consideration in this court 
 is, did the court err in overruling the motion? It is a principle, 
 too well established now to be questioned, that generally, after the 
 adjournment of the court for the term, its record can never after- 
 wards be touched by that court; and if error has found its way in- 
 to the proceedings, it must be corrected by another and a higher 
 court. To this general principle there are some few exceptions, 
 and they are mostly of statutory provisions. One of the exceptions 
 is, the proceeding by writ of error coram nobis. This is a pro- 
 ceeding which lies in the same court where the cause is tried; 
 whereas the writ to correct errors in the judgment of that court, 
 cannot be brought before the same court, but its object is to re- 
 move the cause to a higher court. For it would be absurd to ap- 
 peal to tho same court from an error of its own judgment. But as 
 the writ of error coram nobis does not question the judgment of 
 the court, but only alledges some defect in the execution of the 
 process, or some clerical misprison or mistake, or some error in 
 the proceedings arising from a fact not appearing on the face of 
 them, (as when a judgment is rendered against a party after his 
 death,) there is no absurdity in permitting it to be brought before 
 the same court that tried the cause. Thus, if the court enters up 
 a judgment as confirmed against the appearance bail, whereas in 
 truth and in fact he had filed a recognizance of special bail, and 
 had set the oflice judgment aside, which, however, the clerk omit- 
 ted to enter in the record, this writ of error coram nobis, (some- 
 times called a writ of error in fact,) lies to correct the proceedure,
 
 5!s REPORTS. 
 
 and upon the fact appearing, the court proceeds to reverse the 
 judrnent against the appearance bail up to the point where the er- 
 ror was committed, and placing the cause in the state in which it 
 would have been, had the fact been properly entered on the record, 
 sends it back for further proceedings. 2 Wash. 130 ; 2 Rand. 174. 
 The provisions of our statute of amendments do not extend to such 
 a case as is made by the motion under consideration. Believing 
 that the District Court had no authority to interfere with the judg- 
 ment of a previous term, in the manner asked for by the motion, 
 we affirm, with costs, the decision overruling the motion. 
 
 MOSES M. STRONG, for pl'tfT in error. 
 
 DUNN and BURNETT, for def'ts in error. 
 
 THOMAS AGAN & 1 
 
 OWEN M'LAUGQLIN,^'^s in error, 
 
 rs. J- Error to Grant county. 
 
 The BOARD OF COMMISSIONERS of the | 
 county of GRANT, defts in error. J 
 
 This case embraced the same questions of law, and depended 
 upon the same state of facts as the above case, in every particular, 
 except the names of the plaintiffs. It was submitted upon the ar- 
 gument in the foregoing case. The decision of the court below 
 was affirmed according to the above opinion, without any separate 
 opinion being delivered in it.
 
 REPORTS. 53 
 
 DANIEL I\l. PARKISON.ptyT in error,) 
 
 vs. > Error to Iowa county. 
 
 RICHARD McKIM, deft in error, \ 
 
 WHEN a party to a suit has been notified under the statute, to appear and 
 be examined as a witness on the trial and appears according to the notice, 
 and is willing to be sworn and examined, he may be examined as a witness 
 in the cause, whether the party who gave the notice wishes it or not, and 
 although he may object to his being examined at the trial. 
 
 In an action by the indorsee against the indorser, where the plaintiff de- 
 clares upon a negotiable promissory note in the common form, with the 
 usual averments of presentation, non-payment and notice, a. note nnder 
 seal, indorsed by the payee to the plaintiff, does not support the declara- 
 tion, and cannot be read in evidence to The jury. 
 
 A note under seal, although it may be made payable to order, is not ne- 
 gotiable, nnd the indorsee of such a note cannot maintain an action upon 
 it in his own name, against eiiher the maker or indorser. 
 
 The indorsement of a note under seal is not a legal transfer of the in- 
 strument, nor does it make the indorser liable to the holder, or authorize 
 him to insert any guarantee of payment over the indorser's name; it is 
 nothing move than an order or authority to the holder to -receive the money 
 from the maker. 
 
 In actions between indorsee and indorser of negotiable promissory notes, 
 the questions as to tbe sufficiency of the notice and what shall constitute 
 due diligence, where the facts are ascertained, are questions of law, and 
 cannot be submitted to the jury. 
 
 McKim brought an action of assumpsit against Parkison in the 
 Iowa District Court. The declaration contained the usual com- 
 mon counts, count on an account stated and a special count upon 
 the following promissory uote under seal, and the indorsement 
 thereon: 
 
 "On or before the first day of June next, I promise to pay D. 
 M. Parkison or order, the sum of two hundred dollars, for value 
 received. Witness my hand and seal this 17th day of February, 
 1840. (Signed) JOSEPH CALDWELL, [Seal]" 
 
 "Pay the within to Richard McKim, 
 
 (Signed) D. M. PARKISON." 
 
 Upon the trial of the cause, the plaintiff below offered the note 
 and indorsement in evidence to the jury, which was objected to 
 by the defendant, but the court overruled the objection, and the 
 note was read. It was proven that the note was presented to the 
 maker at maturity and payment demanded, and that notice of non- 
 payment was given to Parkison the indorser, but the precise time 
 of giving the notice could not be fixed ; it was not, however, stated
 
 54 REPORTS. 
 
 by any of the evidence, to have been given within less than four 
 days after demand and refusal of payment. It also appeared in 
 the evidence that Parkison lived within eight miles of Mineral 
 Point where payment was demanded of the maker. 
 
 Previous to the trial, Parkison had given notice under the stat- 
 ute, that he wished to have McKim sworn and examined as a 
 witness. McKim attended under the notice and was willing to 
 be sworn, but at the trial the counsel for Parkison declined calling 
 upon him. He then gave notice to Parkison's counsel to have 
 him (Parkison) sworn as a witness, and upon Parkison being called 
 and not appearing, lie insisted upon being sworn and examined 
 himself, which the court allowed to be done, and to which the de- 
 fendant's counsel excepted. 
 
 After the evidence, the defendant's counsel requested the 
 Court to instruct the jury: "That if the jury find that the maker 
 of the note lived at Mineral Point at the time when the note be- 
 came due, and that the indorser lived within eight miles of there, 
 that a notice of non-payment given to the indorser four days or 
 more after the non-payment would not be reasonable notice." 
 The Court declined giving the instruction in the form in which 
 it was asked, but instructed the jury: "That in case of non-pay- 
 ment by the maker on the day of payment, the plaintiff could not 
 recover unless he proved that he gave notice of the non-payment 
 to the indorser as soon as, considering the situation of the par- 
 ties, lie reasonably could; but that the jury must be the judges 
 from the circuinstances-of the case as proved, whether or not the 
 notice was reasonable." 
 
 The jury returned a verdictin favor of the plaintiff for the amount 
 of the note and interest, upon which the court rendered judg- 
 ment. 
 
 Parkison sued out a writ of error to reverse the judgment of the 
 District Court, and assigned the following errors in the proceed- 
 ings below: 
 
 "1st. The court below erred in permitting the plaintiff below 
 to be sworn as a witness. 
 
 2d. The court erred in permitting the note to be read in sup- 
 port of the declaration. 
 
 3d. The court erred in refusing to instruct the jury as request- 
 ed by the counsel for the defendant below, and in giving the in- 
 structions which it did.''
 
 REPORTS. 55 
 
 MOSES M. STRONG for pl'ff in error: 
 
 The first error depends upon the sufficiency of the notice given 
 to the defendant below to be sworn as a witness. The I;uv only 
 authorizes the parly giving the notice to be sworn himself, in case 
 the piirty notified fails to attend or refuses to be examined, and 
 when, the notice has been reasonable. In ihis case, the defend- 
 ant was not present at the trial, and the notice was given to his 
 counsel during its progress. It will not be insisted by any one, 
 that, as a general principle, this notice was sufficient. The no- 
 tice previously given to the plaintiff', certainly did not authorize 
 him to force himself as a witness in the cause against the will of 
 the defendant. 
 
 The second error brings us to Ihe consideration of the note up- 
 on which the action is brought. It is an instrument under seal, 
 and as such is not negotiable. The ordinary indorsement does 
 not authorize the indorsee to maintain an action upon it in his 
 Own name, either against the maker or indorser. The actioo of 
 assumpsi.t can only be maintained on simple contracts, and a seal- 
 ed instrument cannot be introduced to support any declaration in 
 that form of action. 
 
 Upon the third assignment of errors, we contend, that if the 
 court it asked to give a principle of law, applicable to the case, 
 in charge to the jury, and refuses to do so, it is error. The court 
 was asked to instruct the jury, that if a certain state of facts ex- 
 isted, the notice was not reasonable. This instruction the court 
 refused to give; but on the contrary, charged the jury that they 
 must judge whether the notice was reasonable or not from the 
 circumstances of the case. In both the refusal and the charge 
 given, the court erred. Tiie authorities upon the su'oject fully 
 establish the principle, that when the facts are ascertained, whe- 
 ther the notice is reasonable or not, is a question of law for the 
 court, and not one of fact for the jury. They also establish the 
 point, that upon the facts in this case, the notice was not reason- 
 able. Chitty on Bills, 509, 510, (notes and authorities there re- 
 ferred to.) Byles on Bills, 151). Law Library, no. 42. Tindell 
 and others,vs. Brown, 1 T. R. 168. Darbyshire vs. Parker, 6 
 East. 3, note. Lenox vs. Roberts, 4 Peters' Con. Rep. 1G4, and 
 note. Bank of Columbia vs. Lawrence, 1 Peters, 581. Bush 
 vs. Swan,9 Peters, 45. Dickens vs. Bull, 10 Peters, 581 . 
 
 DUNN for deft in error:
 
 56 REPORTS. 
 
 As to the sufficiency of the notice to the indorser, and whether 
 the question is one of law or of fact, the authorities are conflicting. 
 The best guide which this court can have on that point, is its own 
 decision in the case of Johnson vs. Wilson^s udmr., made at the 
 July term, 1840. The more reasonable rule is, to judge of the 
 sufficiency of the notice by the circumstances of each case. 
 Chitty on bills, 51 1 ; id. 518, note o. ; Taylor vs. Brcdcn, 8 John. 
 Rep. 172. 
 
 The objection which has been raised to the note sued on is not 
 well founded. The note has no legal seal to it, and the indorse- 
 ment has nothing purporting to be a seal. There are common 
 counts in the declaration, and the finding of the jury may have 
 been under some of them, as there was evidence in support of 
 them, and a positive promise to pay was proven. 
 
 STRONG, in conclusion: 
 
 The case of Johnson vs. Wilson^s admr. is not of binding autho- 
 rity in this case, because there, there was evidence of in relation to 
 agreement between the parties, which the court said must govern 
 the case. The note read from Chitty on bills, 518, does not support 
 the principle that has been contended for. The case of Taylor 
 vs. Breden, in 8 John, Rep. cited by the counsel for the defendant, 
 was brought on a judgment rendered in the State of Maryland, 
 and the question of notice in that case was not decided by the 
 court in New York. 
 
 The legislature of this Territory has made any device used by 
 way of a seal, a sufficient seal, (Stat. Wis. 158.) This effectual- 
 ly establishes the character of the instrument sued on. It is no 
 answer to the argument to say, ihat there were common counts 
 in the declaration, and that there was other evidence than the 
 note before the jury. The note itself does not support any of 
 the counts, and if the court below committed material error in 
 its decision, the judgment must be reversed, and it matters not 
 how many legal decisions were made, or how much legitimate 
 testimony was given in the progress of the cause. 
 
 Opinion of the Court, by Judge MILLER. 
 
 This was an action of assumpsit brought in the District Court for 
 the county of Iowa, by defendant in error against plaintiff in error. 
 
 In the tenth section of the act entitled ' an act supplemental to 
 the act concerning testimony and depositions, approved Februa- 
 ry 19lh, 1811, it is provided, that in all actions, or proceedings at
 
 REPORTS. 57 
 
 law in civil cases, either party may give notice to the adverse par- 
 ty, that he wishes to have said party sworn as a witness in such 
 case; and if said adverse party shall not appear at the time of trial, 
 or shall refuse to be sworn or to testify, or shall fail tu take and 
 produce his deposition as therein after provided, then the party 
 giving such notice, if the notice shall be deemed by the court 
 sufficient, may himself be sworn as a witness in such cause. The 
 defendant gave the plaintiff notice to appear in court at the trial 
 of the cause, and testify. The plaintiff did so appear, and was 
 willing to give evidence as a witness in the cause, when the coun- 
 sel of defendant declined having him sworn. The plaintiff then 
 gave notice to defendant's counsel at the bar, and during the pro- 
 gress of the trial, that he desired to have him, the defendant, tes- 
 tify in the cause, when the defendant was called, and making no 
 answer, the court admitted the plaintiff to be sworn and testify as 
 a witness. This is the first error assigned. 
 
 This is a peculiar and novel statute, but the court must give to 
 it its proper effect. The party is notified to appear to be sworn as 
 a witness, and he must either be present and consent to be sworn 
 and testify as a witness, or produce his deposition; and in default 
 thereof, the party giving the notice will be admitted as a witness. 
 We are disposed to consider the notified party in the same light 
 as any other witness subpenaed in the cause. If a witness is 
 subpenaed by one party and not called, the other party can call 
 him. When a deposition is taken and filed, it becomes the prop- 
 erty of both parties, and can be used by either party, on comply- 
 ing with the rules of the court. 8 Sergt. & Rawle, 580. If the 
 party shall produce his deposition, taken and executed according 
 to the provisions of the statute and the rules of court, it can bo 
 read on either side in evidence. If the party notified shall ap- 
 pear in court at the trial, in pursuance of notice, and is willing to 
 give evidence as a witness, he may be sworn, whether the party 
 who notified him calls him to the stand or not. It is not necessa- 
 ry for him even to call upon the opposite party, as was done in this 
 case. In this there was no error. 
 
 The plaintiff, as indorsee of a promissory negotiable note, de- 
 clared against defendant as indorser. The declaration set forth a 
 promissory note and the indorsement thereof to the plaintiff by 
 defendant, before due, with the usual averments of demand of 
 payment and notice of non-payment. The paper offered in evi- 
 
 8
 
 58 REPORTS. 
 
 dence, was a note under seal; to the reading of which the defen- 
 dant's counsel objected, which objection was overruled and the 
 testimony admitted. In this the District Court committed an er- 
 ror. It was not proper evidence in support of the declaration. 
 The variance between the note set forth in the declaration and 
 the note offered in evidence, is very apparent. 
 
 The court charged the jury, thatincr.se of non-payment by 
 the maker on the day of payment, the plaintiff could not recover, 
 unless he proved that he gave notice of the nOn-payrnent to the 
 indorser, as soon as, considering the situation of the parties, he 
 reasonably could, but that the jury must be judges, from the cir- 
 cumstances of the case, as proved, whether the notice was reason- 
 able. In this charge, it is considered that the District Court 
 erred. 
 
 This note, being a note under seal, was not nf?gotiab!e; 2 Bin- 
 ney,154; 1 Dallas, 208. The seal stripped it of its negotiability, 
 according to the principles of the law merchant; and consequently 
 the indorsement by the defendant, did not vest irk the plaintiff a 
 legal right to sue in his own name. If, then, the plaintiff iias no 
 legal right by virtue of the indorsement, to sue the maker in his 
 own name, by what right can he sue the indorser? The indorse- 
 ment by defendant was not a legal transfer of ihe note; it was no 
 assignment, but merely an order or authority to the plaintiff to re- 
 ceive the amount of it from the maker. It never can be consistent 
 with the intent of the parties, or with the law, that every man 
 who puts his name on a bond is to be considered as a new drawer 
 of the bond; and if we stop short of that conclusion, the plaintiff 
 cannot recover. The law is decided to be, that the mere indor- 
 ser of a bond or a sealed instrument, is not liable in law to the in- 
 dorsee ; 1 Bay's South Carolina Reports, 400; Folwell vs. Beavcn, 
 13 Sergt. & Rawle. 311. Nor does such indorsement authorize 
 the holder to insert any guarantee of payment over the indorser's 
 name. Nor will the indorser be liable on an allegation of a pro- 
 mise, unless it be clear and explicit, and clearly established by tes- 
 timony. 
 
 In cases arising upon the indorsement of negotiable paper, the 
 questions as to the sufficiency of the notice, and what shall con- 
 stitute due diligence, when the facts are ascertained and determi- 
 ned, are of raw, and cannot be submitted to the jury. On this 
 point there is a conflict in the decisions, but the weight of author-
 
 REPORTS. 50 
 
 ity is in favor of the principle here stated. In England the rule 
 is settled in this way. It is so settled by the Supreme Court of 
 the United Stntes, which is the rule of decision for this court. 
 Chittyon bills, 509, 510, 514, 515, 516; 1T.R. 168; GEast.3; 
 Bank of Columbia vs. Lawrence, 1 Peters, 581 ; Lenox vs. Rob- 
 erts, 4 Peters' Cond. Rep. 164; Bush vs. Swan, 9 Peters, 45; 
 Dickens vs. Bull, 10 Peters, 581. 
 
 The case of Johnson vs. Wilson, decided at the term of 1840, 
 of this court, was ruled, exclusively, on the agreement of the par- 
 ties, on the subject of demand and notice. 
 
 Judgment reversed. 
 
 MOSES M. STRONG, for pl'tffin error. 
 
 F. J. DUNN, for deft in error. 
 
 HENRY MERRILL, pP/in error,) 
 
 vs. > Error to Dane county. 
 
 GIDEON LOW, deft in error, } 
 
 WHERE an affidavit stated the cause for issuing a writ of attachment to 
 be, that the plaintiff had good reason to believe, and did believe, that the de- 
 fendant was about fraudulently to remove his properly, convey or dispose of the 
 same so as to hinder and delay, &c., it is not sufficient to authorize the writ 
 of attachment ; and where a writ has issued, founded upon such an affida- 
 Tit, it should be quashed on motion. The word fraudulently, qualifies the 
 word remove only ; and (he words hinder and delay, refer to the words con- 
 veyor 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 allega- 
 tions 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 propertj 
 "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," &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 with- 
 in the meaning and intention of the law. 
 
 Merrill sued out of the Dane District Court, a writ of attach-
 
 60 REPORTS. 
 
 merit against Low, dated 30th July, 1841, founded upon the fol- 
 lowing affidavit: 
 
 "Henry Merrill being duly sworn doth depose and say, that 
 Gideon Low, of Fort Winnebago, is justly indebted to this depon- 
 ent 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, nnd does believe, that said Low is about fraudulently to 
 remove his properly, convey or dispose of the same, so as to hin- 
 der and delay this deponent, and further saith not." 
 
 Upon which affidavit was the following indorsement of satisfao 
 tion by the officer before whom it was made: 
 
 'I hereby certify, that I am fully satisfied that the facts and al- 
 legations set forlh in the above affidavit, are true, and that the 
 said affiant is justly entitled to his writ of attachment}" and signed 
 by the Supreme Court Commissioner. 
 
 The writ of attachment which issued, after the attaching part, 
 went en to command the sheriff", that the property "so attached 
 in your hands to secure, or so to provide, thai 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 Mer- 
 rill, 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 terra, 
 the defendant moved the court to quash the writ upon the follow- 
 ing grounds: 
 
 "1. Because the affidavit of the said plaintiff filed with the 
 clerk of said court in the above entitled cause, is insufficient, for 
 the reason, that the said affiant does not swear to the existence 
 of any particular fact which authorizes the issuing of a writ of at- 
 tachment. 
 
 2. Because the said affidavit is uncertain. 
 
 3. Because the certificate of Wm. N. Seymour, as supremo 
 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."
 
 REPORTS. 61 
 
 Upon this motion, the District Court quashed the wfit and dis- 
 missed 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 eit in sustaining the motion, of 
 the defendant? 
 
 BOTKIN for pl'fl' 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 affidavil is not in the disjunc- 
 tive, as was insisted in the court below, according to the decision 
 of this court in the case of Morrison vs. Fake. One of the caus- 
 es for issuing the writ, is stated in the veiy words of the law, and 
 the portion of the affidavit that is objected to, may be rejected as 
 surplusage. 
 
 CLARK for deft in error: 
 
 The principal argument to reverse thejudgment 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 sta- 
 tute, no one would contend that it would be sufficient. If any one 
 of the facts exists, it is enough, and the affidavit must state dis- 
 tinctly wliAt the fact is. Nothing should be left in doubt as to its 
 true meaning. 
 
 WHITOJX, 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 dis 
 pose of the same so as to hinder and delay the plaintiff, but the 
 fraudulent intent is not coupled wilh this allegation. The act 
 about to be 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 satis-
 
 62 REPORTS. 
 
 fied that the plaintiff believes as he has staled 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 oth- 
 erwise direct. (Stat. VVis. 200.) This writ is not made return- 
 able 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 issu- 
 ing 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 de- 
 cision 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 as- 
 signed? 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 ihe affidavit. In Mor- 
 rison against Fake, this court classed the cases in which attach- 
 ment is authorized to issue, by the act concerning the writ of at-
 
 REPORTS. 63 
 
 tachment, 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 mny 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 re- 
 conciled 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 uncertainly are 
 imposing on the face of the affidavit, in respect to the rule refer- 
 red to. The affidavit is in these words: " Has good reason to be- 
 lieve and does believe, that the said Low is about fraudulently to 
 remove his properly, convey or dispose of the same, so as to hin- 
 der or delay this deponent." It is uncertain and therefore insuffi- 
 cient in this, that according to the acknowledged rules of gram- 
 matical construction, the adverb, fraudulently, qualifies the word 
 remote only, and not the words convey or dispose; and the words 
 " so as to hinder or delay this deponent," refer to the words " con- 
 vey or dispose," as their antecedent, and not to the words "frau- 
 dulently remove;' 1 '' 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, " frau- 
 dulently," prefixed, would be a sufficient ground for the same 
 purpose. The affidavit in this respect should be so direct, positive, 
 a nd certain, that upon a public prosecution on the same charge,
 
 64 REPORTS. 
 
 supported by proof, the defendant could be convicted. There 
 may be, and doubtless are different opinions, about the construc- 
 tion 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. 
 
 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 X. Seymour, 
 Supreme Court Commissioner, indorsing satisfaction on the affi- 
 davit j and that the writ of attachment is not made returnable ac- 
 cording to law. 
 
 The court is not called on to consider the merits of these ob- 
 jections. 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 suffi- 
 ciency of the affidavit. We are also of opinion that the writ, al- 
 though not in the usual form, is made returnable within the mean- 
 ing and intention of the law. 
 
 Judgment affirmed with costs. 
 
 BOTKIX, for pl'tff in error. 
 
 WHITON and CLARK, for deft in error.
 
 REPORTS. 65 
 
 WILLIAM S. BROWN, pVffin error, } 
 
 vs. > Error to Rock county. 
 
 GEORGE W. BICKNELL, deft in error,} 
 
 A PLEA of the statute of limitations, is a pica to the remedy ; it is a mere 
 municipal regulation, formed upon local policy; and a foreign statute can- 
 not he pleaded in our courts. 
 
 Where the debtor is out of the Territory at the time when the cause of 
 action accrues, the suit may, according to the 21th section of the statute 
 of limitations, be commenced here within the time limited, at any time af- 
 ter he comes into the Territory. 
 
 Where the maker of a promissory rote resided out of the Territory atthe 
 time when it became due, and afterwards removed into the Territory, al- 
 though the note has been due more than six yours, it is not barred by the 
 statute of limitations unless six years have elapsed since the maker came in- 
 to the Territory before the commencement of the c ction ; 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 Bickncll in the 
 Rock District Court, upon the following promissory notes and 
 drafts drawn in Providence, Rhode Island, viz: 
 
 One note dated 15th February, 1833, due at six months; 
 
 One do. dated 21st March, 1833, due at four months; 
 
 One do. dated 18th May, 1833, due at four 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 de- 
 fendant came into the Territory for the first time in July, 1837, 
 about four years before the commencement of the suit. On the 
 tri;i 1, the court below instructed the jury, at the request of the de- 
 fendant, that the 24th section of the act in relation to the time of 
 commencing actions, was not applicable to the case, and to disre- 
 
 9
 
 60 REPORTS 
 
 gard it. Under the instructions of the court, the jury returned z 
 verdict in favor of the defendant. A motion was made for a new 
 trial and overruled, and judgment rendered on the verdict. 
 Brown sued out 1 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 Terri- 
 tory. He came into the Territory for the first time in July, 1837, 
 about four years before the suit was comrnenced. In such case, 
 the action is not barred until six years after the debtor comes into 
 the Territory. Slat. Wis. 261, 262, sec. 24. Our statute issim- 
 i!ai to those of New York and Massachusetts upon the same sub- 
 ject. The decisions of the courts of those States show conclu- 
 sively, that under the facts of this case the statute of limitations is 
 no bar to the action. 2 Rev. Stat., N. Y., 225. Rev. Slat. Mass. 
 700, sec. 9. Rugglcs vs. Keelcr, 3 John. Rep. 203. Byrne rs. 
 Crowninshcld, 1 Pick. 203. Duight vs. Clark, 7 Mass. Rep. 
 515. White vs. Bailey, 3 do. 217. See also Story's Conflict of 
 Laws, 482 to 488. Bell and others rs. Morrison, 1 Peter?, 351. 
 
 WHITON for deft in error: 
 
 The Court is called upon, to give a sound construction 'o our 
 statute of limitations. But for the exception in the 24th section 
 of the act, the action would be clearly barred, and there would be 
 no controversy in the case. The principle sought to be establish- 
 ed 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 re- 
 ference 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 rs. Morrison, 1 Peters, 300. 
 Rt/frglfs ?-.<?. Kcckr, 3 John. Rq>. 205. 
 
 Our statute is not precisely the same as those of New York and
 
 REPORTS. 67 
 
 Massachusetts, and this Court is not bound by the decisions in 
 those states. The statute of limitation is a local municipal regu- 
 lation, founded upon the policy 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 contra- 
 ry to its palpable import and meaning. The Court has no such 
 extensive 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 MLILEE: 
 
 The plaintiff in error brought suit against the defendant in er- 
 ror 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 there- 
 after; 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 men- 
 tioned 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 tiio 
 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; G Wendell, 475; 4 Cowen, 528, 530; 1 Gallis, 
 371; 2 Mason, 351; 14 Peters, 141. A statute of limitation is a 
 mere municipal regulation, founded upon local policy; and a for- 
 eign 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 ac- 
 crues; that is, when the right of action accrues, the debtor must 
 be out of the Territory: 5 Cowcn, 74; 14 John. 338; 9 Cowen, 
 296; 5 Cowen, 231; 4 Cowcn, 508; 2 Cowen, 626; 17 John. 
 511. Under similar provisions in the statutes of limitation in 
 force in the states of New York and Massachuse'ts, the courts of
 
 68 REPORTS. 
 
 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, 4S2 to 488; 1 Pick. Rep. 203; 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 trie 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 ac- 
 tion upon the debt, brought within six years after the parties 
 came into that slate. 
 
 The judgment of the District Court of Rock county, which was 
 in favor of the defendant, must be reversed. 
 
 WELLS, for pl'ffin error. 
 
 WHITON, for deft in error. 
 
 ,i 
 
 PHILIP J. TOLLE, p ft/ in error, 
 
 i~i. J- Error to Grant county. 
 
 PENDLETON P. STONE,*/'* in error. 
 
 UPON an appeal from the judgment of a Justice of the Peace, the Dis- 
 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 qualifi- 
 cations 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 Dis- 
 trict Court. In the District Court, Stone, by his counsel, moved 
 the court to dismiss the suit, because 1. Cyrus K. Lord, the jus-
 
 REPORTS. 69 
 
 tice 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 12th 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 depo- 
 sited 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 jus- 
 tice of the peace, and could not lawfully entertain jurisdiction in 
 any cause; and the court decided, that not having complied wilh 
 the requisitions of the statute as to his qualifications, he" was not 
 a legal justice of the peace, and dismissed the suit upon the mo- 
 tion 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. 
 
 WIHAM KNOWLTON, for pl'tfTin error: 
 
 The decision of the District Court was erroneous for these rea- 
 sons: 
 
 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 Bank of 
 Maryland vs. Ridglcy, \ Har. &/ Gill, 324 ; Andrews vs. Beall et 
 al.9 Cowen,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 etals. 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 collater- 
 ally; the officer himself must be made a party to the pioceeding.
 
 70 REPORTS. 
 
 7 Amer. Com. Law, 477, 478; The People vs. Adams, 9 Wen- 
 dell, 404; 3 Tomlin's Law Dictionary, 280 to 287. 
 
 5. General reputation of officers is sufficient in all cases except 
 in quo icarranio. Potter vs. Luther, 3 John. Rep. 431; 2 Star- 
 kie,21S, 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. Gilbrcath vs. Brown 
 ct al. 15 Mass. Rep. 107; 7 Arner. Corn. Law, 144; Mar burn vs. 
 Madison, 1 and 2 Cranch, 49. 
 
 7. If Lord was not an officer dcjnrc, he was an officer de facto, 
 and his acts are valid so far as the public and third persons are 
 concerned. 7 Amer. Corn. Law, 142; McKinstry vs. Tanner, 
 
 9 John. Rep. 135; The People vs. Collins, 7 John. Rep. 549; 5 
 Wendell, 231 ; 1 Hill, 074; Me Kim fy Armstrong vs. Homers, 1 
 Penrose &. Watts' Pcnn. Rep, 297; The United States vs. Lask. 
 decided in this court at the July term, 1S40. 
 
 BEVASS, for deft 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 offi- 
 cer, 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. Corn. Law, 
 
 10 Wendall, and other references, proof of his qualifications can-... 
 not 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 attempts to exercise judicial 
 authority in a subordinate station, and his acts arc appealed from 
 to the court that has the immediate supervising jurisdiction. In 
 the superior court it is insisted that the inferior officer had no au- 
 thority to try the case; that the proceedings are coram nonjudi- 
 cc, and the District Court is asked to send the case out because 
 
 it did not come there from any lawful authority, lias it no power
 
 REPORTS. 71 
 
 lo inquire into the authority of those who pretend to fill judicial 
 stations? If it has not, a maa 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 author- 
 ity. His liability to the public cannot in any way affect the pri- 
 vate rights upon which he has adjudicated, and the tedious pro- 
 ceeding of 'quo warranlo is the only remedy. 
 
 The statute makes the taking and subscribing the oath of office, 
 executing the bond, and filing and recording both, conditions pre- 
 cedent, 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 
 either de jure or de facto. 
 
 Opinion of the Court by Judge Iiivix; Chief Justice Durof dis- 
 senting: 
 
 Upon examination of this case it appears that the plaintiff com- 
 menced, on the 2d day of September, 1841, a suit before a jus- 
 tice of the peace (Bennet Atwood) in and for the county of Grant, 
 againsi 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 de- 
 fendant to a horse of plaintiff's, and for which a jury found a ver- 
 dict 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 " 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 Distiict Court of Grant county, as requir- 
 ed by law;" which motion was sustained, and the cause dismissed at 
 plaintiff's costs, and to which decisioii exception was taken by 
 plaintiff, and the cause brought here to correct the error as com- 
 plained of in that decision and judgment of the District Court. 
 
 The only question presenting itself here for the consideration
 
 72 REPORTS. 
 
 of the court is; did the District Court err in permitting the quali- 
 fications of C. K. Lord (the justice before whom the cause was 
 tried) to be inquired into and acted upon collaterally? It is con- 
 tended that the court did err, and, in support of the position, re. 
 fere:ice is made to a decision of this court at a former session, 
 Lask vs. U. S. July Term, 1840; 9 Wendell, 464; vol. 7 Ameri- 
 can Com. Law, pages 477, to 478; and numerous other authori- 
 ties. In 1 Penn. Reports, 297, in the case of iVIc Kim and Arm- 
 strong against Somers, in error, the question arose on an objec- 
 tion 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 major- 
 ity 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 deposi- 
 tion 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 ques- 
 tion. At present we think it even improper to intimate an opin- 
 ion. 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 con- 
 clusions 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 hold his commission to be called in question, 
 in a cause in which lie is no parly and cannot be heard. The 
 counsel for the defendant objected to thu court goir.g into the 
 question whether he was a justice de jure at all, and in this we 
 conceive they were in the strict line of their duty. They con- 
 tended, 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 oflicial act, he was acting in the district for which he was ap- 
 pointed; that this constituted him a justice de facto, with at least 
 colorable authority; and that as long as the commission remain-
 
 REPORTS. 73 
 
 ed, 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 in- 
 justice of impeaching, or even impairing the right to an office, 
 without giving an opportunity of hearing the party principally af- 
 fected by the decision, ihe 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 in- 
 troduction 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, jn 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 under- 
 stand the counsel, they admitted the law, in its full force, as re- 
 spects ministerial officers, but denied it as respects judicial offi- 
 cers. I should bave 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 of the whole court, that 
 Binns' right to the office he held, could not be questioned on the 
 indictment, and we accoidingly 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. 
 
 10
 
 74 REPORTS. 
 
 We are therefore compelled to reverse the decision of the Dis- 
 trict Court, with costs. 
 
 KXOWZTOXJ for pl'tfFin error. 
 BEVANS, for deft in error. 
 
 WALLACE UOWEN, pi' tiff in error, } 
 
 rs. > Error to Dane county. 
 
 JONATHAN TAYLOR, deft in error.) 
 
 WANT of notice in proccecings by attachment, is matter in abatement, 
 and not in arrest of jiulziiiunt. 
 
 Defects apparent on the record may be noticed by the court, although 
 not pointed out in the exceptions: and a judgment maj be arrested for an 
 objection on the fact' of the record, though it was not assigned at the time 
 of making the motion. 
 
 Where a plain'.iff 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 differ- 
 ent declarations, should be set aside and the judgment arrested. 
 
 Row en sued out a writ of attachment in the Dane District Court, 
 against Taylor, for $100. or upwards. The writ was issued on 
 the 13th May, 18-41, and returnable to the November term, 1841. 
 At the return term the first default was taken; and at the May 
 term, 18-12, the plaintiff filed two declarations; one in debt for 
 $1330 67, and one in case, claiming ,92000 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 been sworn, the 
 defendant made his first appearance in the cause, and moved the 
 court to dismiss the proceedings, because no notice had been pub- 
 lished as required by the statute, but immediately withdrew his 
 motion, and the inquest proceeded. The jury returned a verdict 
 for 08V) \<) debt, uid .^feO 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 attach- 
 ment. 
 
 2. The proceedings arc irregular, defective and uncertain.
 
 REPORTS. 75 
 
 3. The verdict of the jury is contrary to evidence and the in- 
 structions of the court." 
 
 Upon this motion the District Court arrested the judgment and 
 dismissed the proceedings; and Rowen has sued out a writ of er- 
 ror from this court to reverse that judgment, which he alledges was 
 erroneously given. 
 
 WIIITON and STRONG, for pl'tff in error: 
 
 The judgment of the court below ought not to have been ar- 
 rested and the suit dismissed, for the reasons stated in the mo- 
 tion. It \v;is the duty of the court at the second term, to default 
 the defendant, and the right of the plaintiQ'to file as many declar- 
 ations as he had causes of action. Rev'd. Stat. Wis. 100, 167, 
 sec. 7. The matters alleclged in the defendant's motion are mat- 
 ters in abalement, 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 deft in error: 
 
 The statute of amendments does not reach this case. A ver- 
 dict 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 sum- 
 mons, 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 be 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 plaintiiT against the defendant, on an affi- 
 davit alledging fraud. At the second term, in pursuance of the 
 statute, the plaintiff filed tsvo declarations against the defendant,
 
 76 REPORTS. 
 
 and took a second default. A jury was then called and sworn tq 
 assess the damages, and afterwaras the defendant's counsel filed 
 a motion in arrest of judgment on the following grounds: 
 
 1. Thai the attachment affidavit and levy are defective. 
 
 2. There was no publication of the pendency of the attach- 
 ment. 
 
 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 dis- 
 closed what were in his hands, which were choses in action. This 
 proceeding, in this particular, should be considered correct, partic- 
 ularly at the time the objection was made. 
 
 As it regards the second objection ; it appears, that after the ju- 
 ry was sworn, and part of the testimony received, the defendant 
 by his attorney moved the court to abate the proceedings for want 
 of the publication of the pendency of the attachment, and imme- 
 diately withdrew it, and let the investigation proceed. It also ap- 
 pears, that although this was a judgment by default, yet the de- 
 fendant, 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 du- 
 ty of the court to abate the proceedings, for the law is imperative. 
 But he withdrew his motion, and let the investigation proceed, un- 
 til 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 tiling. But even without this objection to the proceed- 
 ings 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 wani 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
 
 REPORTS. 77 
 
 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; Grosser r.?. 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 gener- 
 ally, who reported a verdict in debt and damages, without any spe- 
 cial reference to these declarations. Under the seventh section 
 of the attachment law, the plaintiff', and every other creditor of 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 oth- 
 er 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. 
 
 Judgment affirmed, with costs. 
 
 WIIITON and MOSES M. STRONG, for pl'tff in error. 
 
 FIEJLD &. BOTKIN, for deft in error.
 
 78 REPORTS. 
 
 A DARK COLORED NE'VLY 
 
 DECKED SCOW BOAT^'/i/m error. R fo Milwaukee county, 
 rs. J 
 
 JOHN LYNN, dcf't in error. 
 
 A SCOW-BOAT, belonging to a particular port, and used as a lighter ana 
 wood boat in the river and harbor, is n.it liable to be proceeded against by 
 attachment under the act to provide for the collection of demands against 
 boats and vessels. 
 
 That act was intended to apply to steam-boats aril sail, or other vessels 
 of the larger class, engaged in carrying and transporting; persons and pro- 
 perty froni 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, tuok 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 ngainst 
 boats and vessels, for the purpose of collecting a demand for work 
 and labor done on the boat in building it. The boat was owned 
 by Dousman & Brown, of Milwaukee. On the trial, the justice 
 gave judgment for the plaintiff for $27 87, from which Dousman 
 &, Brown appealed to the Milwaukee District Court. On the tri- 
 al of the appeal, it appeared in the evidence for the plaintiff, that 
 the plaintiff had done work and labor on the boat in building it; 
 thr.t 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 ( vas not used in navigating from port to 
 port. The counsel for Dousrnan & Brown moved the court to in- 
 struct the jury as in case of a nonsuit, on the ground that the scow- 
 boat was not a boat or vessel within the meaning of the act, and 
 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 per- 
 formed the work and labor charged in the declaration. 
 
 The jury returned a verdict in favor of the plaintiff, upon which 
 the court rendered judgment; to reverse which judgment the own- 
 ers 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.
 
 REPORTS. 79 
 
 The case was argued, ex pctrtc, by WELLS 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 not. 
 The words, boat or vessel, are to be governed by the words, nav- 
 igate and navigation, which mean, to sail as in ships; passing 
 from port to pott for the purpose of carrying persons or property. 
 A scow-boat or ferry-boat is not engaged in navigation, in the pro- 
 per 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 in- 
 tended 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 descrip- 
 tion. This is a material matter for consideration. A craft that 
 was too insignificant to have a name was too unimportant to en- 
 gage the attention of the legislature. 
 
 The statute of the Territory is similar (o 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 dif- 
 ference 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 of proceeding, 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 <$f Sneden, 5 
 Wendell, 504 ; Burkbeck vs. Hoboken Ferry Boat, 17 John Rep. 
 54; 5 Cowen, 564. 
 
 Chief Justice DUNN 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, defen- 
 dant 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 pro- 
 ceeding 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 re-
 
 80 REPORTS. 
 
 turn 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 render- 
 ed 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 the cause in the District Court, it appeared in ev- 
 idence, that the said scow was used as a lighter in the Milwaukee 
 river and bay, in transporting from and to the boats and other ves- 
 sels 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 navi- 
 gating 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 the 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 exccpted. The case is thus brought into this court 
 upon error to the decision of the District Court in refusing the 
 charge asked, and giving the charge which was given to the jury. 
 
 The only question to be 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. I, it is provided: 
 " That every boat or vessel used in navigating the waters of this 
 Territory, shall be liable," &.o. 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 en- 
 able us to apply the rreaning intended by the legislature. "Nav- 
 igating," in the act before us, in its most extended meaning, might
 
 REPORTS. 81 
 
 embrace all and every description of boat, vessel, or water craft, 
 employed in floating persons or properly upon, or over our waters. 
 But we 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 pre- 
 vented, and the remedy to be secured, arrive at such rational con- 
 clusion 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 the mas- 
 ter, owner, agent, or consignee, on account of supplies furnished 
 for the use of such boat or vessel; on account of work done or ser- 
 vices rendered on board of such vessel or boat; or on account of 
 labor done or materials furnished by mechanics, tradesmen, or oth- 
 ers, in and for building, repairing, fitting out, furnishing, or equip- 
 ping 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 pro- 
 visions of a single statute, or one embracing but one subject mat- 
 ter of legislation, should be, and usually are consistent, havingdi- 
 rect and pertinent relation, the one with the other. In the speci- 
 cation of claims which may be recovered against a boat or vessel 
 under this act, what reference or application can the words," mas- 
 ter," " consignee," " fitting out," " furnishing or equipping," " an- 
 chorage," &.c. have to a scow, used as a lighter and wood boat to 
 vessels or stc am-boats in the river and bay of Milwaukee ? Again, 
 it is provided that such claims as have been enumerated maybe 
 proceeded for, against the vessel or boat navigating the waters 
 of this Territory, by name. Immemorial usage has given to com- 
 mercial 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 affor- 
 
 11
 
 82 REPORTS. 
 
 ded to meritorious claimants under this act, is obvious. To aid 
 commerce and trade, inducements are held out in the law, to buil- 
 ders, 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 naviga- 
 ting 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 enga- 
 ged, 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 where 
 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 il- 
 lustrate or draw the line of distinction, as must have been inten- 
 ded 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 <$f Sneden, 5 Wendell, 564 ; 
 the court were of opinion, that the New York acts were not ap- 
 plicable to a boat whose ordinary business was confined to a par- 
 ticular port or place, and out of sight of which it never went, ex- 
 cept temporarily and for a special purpose. In the case of the 
 owners oT the Sloop Rochester vs. Walker <Sf Me Farlan, 1 Wen- 
 dell, 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 Burkbcck vs. Hoboken 
 horse ferry-boat, 17 John. Rep. 54; and Johnson vs. S. B. San- 
 dusky, 5 Wendell, 510; where the same opinion is recognized. 
 
 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 pro- 
 ceedings as may be proper and legal. 
 
 WELLS, for pl'lffm error.
 
 REPORTS. 83 
 
 JAMES MORRISON, ppff in error,) 
 
 \s. > Error to Dane county. 
 
 ROBERT L. REAM, def tin-error, ) 
 
 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 be 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 ns 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 tho de- 
 fendant of tht; 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 circumstances are not sufficiently proven to 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 su- 
 preme court commissioner before whom the affidavit was made in- 
 dorsed 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 
 25th day of March, 1842. 
 
 [Signed] ALBERT W. PARRIS, 
 
 Supreme Court Conrr, 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 tho 
 writ, because of the insufficiency of the affidavit, and of the in- 
 dorsement of satisfaction. 
 
 The District Court sustained the motion, and dismissed the
 
 84 REPORTS. 
 
 suit; and Morrison sued out this writ of error to reverse the judg- 
 ment. 
 
 Two questions were presented for the consideration of this 
 court: Whether the District Court erred in quashing the attach- 
 ment; 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 fa- 
 vor, 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 culinary 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 he 
 certifies that the proof before him was sufficient to satisfy his 
 mind that the necessary facts exist, the court is bound to be- 
 lieve 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 de- 
 fendant has been improperly brought into court. 
 
 WHITOX, in continuation: 
 
 The court is not concluded by the officer's indorsement of sa- 
 tisfaction. The practice of other courts upon similar statutes is 
 to look behind the certificate, and see whether the officer ought 
 to have been satisfied; to examine the affidavit, and test its suffi-
 
 REPORTS. 85 
 
 cieucy by the statute. 1 Cowen's Treatise 479, 480. 10 Wen- 
 dell, 420. 10 John, Rep. 169. Vosburg vs. Welsh, 11 John. 
 Rep. 175. Smith vs. Leivis, 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 requi- 
 site. As to the indebtedness, it does not show that Ream owed 
 him any thing. It may be true in every particular, and yet Mor- 
 rison may be indebted to Ream on a balance of the accounts be- 
 tween them. The facts stated are not sufficient to justify either 
 Morrison or the officer in believing that tlie 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 evi- 
 dence, that the court may see that he was satisfied upon sufficient 
 testimony. 2 N. Y. Rev. Stat. 102. 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 aggre- 
 gate 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 of 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 bo 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 ordi- 
 nary summons, and he ought to be held to answer the action. 
 
 Judge MILLEB delivered the opinion of the court:
 
 86 REPORTS. 
 
 This cause was commenced by attachment in the District Court 
 of Dane 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 indebt- 
 ed 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 execu- 
 tion can be levied or satisfied." Which affidavit \vas endorsed, 
 satisfied, by a supreme court commissioner. 
 
 On motion, on (he 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 uncer- 
 tain; 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 depo- 
 sition. 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
 
 REPORTS. 87 
 
 along train of decisions, have settled the practice, that the insuf- 
 ficiency 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 ur.contradicted 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 lor 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 are not true or 
 well founded, then, by the direction of the statute, the suit be- 
 comes nothing more than if it had been commenced on summons. 
 But it would lead 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 proper- 
 ty attached shall be released. The act no where says that if the 
 attachment is abated or quashed, that the suit shall be and re- 
 main as in cases of a summons. By the seventh section, in case 
 ot 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, an-d 
 no notice shall be required to be published, as required by the
 
 88 REPORra 
 
 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 attach- 
 ment, without having strictly complied with the pre-requisites of 
 the statute. 
 
 The judgment is therefore affirmed with costs. 
 
 BRIGHAM and FIELD, for pPff in error. 
 
 CLARK and WHITON, for def 't in error. 
 
 HEZEKIAH H. GEAR, jPJfn error,) 
 
 n. > Error to Iowa county. 
 
 CHARLES BRACKEN, deft in error,) 
 
 IN an ac'iDn 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 ond regulations of the Chamber of Commerce, the award must show 
 that the arbitrators proceeded according to such by-laws, rules, and regu- 
 lations, or it is void. 
 
 Where matters in dispute are submitted to arbitrators, they have no pow- 
 er to award that each party shall execute to the oiher 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 enter- 
 ed into a written agreement, under seal, to submit the matters in 
 difference between them to the arbitration and award of the com- 
 mittee of awards of the Galena Chamber of Commerce for that 
 month, (naming the committee in the agreement,) " 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
 
 REPORTS. 89 
 
 committee took up the matter for arbitration on the 29th of Sep- 
 tember, 1839, and made an award in writing undw 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 parly 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 pro- 
 ceeded according to the by-laws, rules, and regulations of the Ga- 
 lena Chamber of Commerce. 
 
 Bracken refused to abide by and perform the award, and Gear 
 brought an action of debl on the arbitration bond in the Iowa Dis- 
 trict 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 commit- 
 tee of awards proceeded in the arbitration according to the by- 
 laws, rules, and regulations of the Galena Chamber of Commerce. 
 Bracken set out the bond, agreement and award, on oyer, and de- 
 murred generally to the declaration. The District Court sus- 
 tained 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 ef- 
 fect. This is all that is required. If the declaration had have 
 ave\red 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 it necessary that it should. The parties mutually select- 
 ed a commercial tribunal, not, it is true, established by law, but 
 of very general use, and which it would seem had rules and re- 
 gulations, to settle their disputes. The award that has been made, 
 is formal and complete, and the presumption is, that the arbitra- 
 tors 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 defend- 
 
 12
 
 90 
 
 ant should have pleaded it, and made an issue of facts to be tried 
 by a jury. Tire ground taken is not good on demurrer. 
 
 DUNN and BUKNETT for defendant in error: 
 
 The parties agreed to submit their matters of difference to arbi- 
 tration, 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 stop short of it. To make 
 the award good, every material matter must appear affimatively on 
 its face, and must be averred in the declaration. The award and 
 declaration are 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. No- 
 thing was submitted to the aroitrators 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, afier oyer 
 craved, and setting out the agreement to submit to arbitration, 
 bond, and award; which demurrer was sustained by the Court, and 
 judgment entered fur the defendant. To the decision of llie Dis- 
 trict Court sustaining the demurrer, the plaintiff excepts, and pro- 
 secutes this writ of error to reverse the decision. 
 
 From an inspection of the record, it is apparent that the plain- 
 tiff's declaration is juslly 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 of Commerce. The award is liable 
 to these objections : it does not show upon its face, that the arbitra- 
 tion was conducted and the award made agreeably to said rules and
 
 REPORTS. 91 
 
 regulations. It exceeds the powers given by the submission, in 
 awarding that upon the payment by Bracken to Gear of the sum 
 awarded, (hat 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 cosls against Bracken; and in awarding that 
 payment should be made by Bracken to Gear of the sum award- 
 ed wiiliin fifteen days after the date of the award. 
 
 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 aciion, with sufficient legal certain- 
 ty. In this case, the committee of awards of the Galena Cham- 
 ber of Commerce, derive their sole power to arbitrate in the pre- 
 mises 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 
 lhat the said committee did arbitrate and award on the matters 
 submitted, according to the rules and regulations of the said cham- 
 ber of commerce, as prescribed in their by-laws, this being a sub- 
 stantive part of the agreement of submission The objections to 
 the award are well founded; it must show that the said commit- 
 tee 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 maUers 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 the powers conferred in 
 awarding costs against Bracken, and payment by him of the sum 
 awarded to Gear, in fifteen days from the date 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. 
 
 MOSES M. STRONG, for pl'fT in error. 
 
 DUNN and BURNETT for deft in error.
 
 92 REPORTS. 
 
 JOHN^GALE, JR., appellant, j Appeal Jroma decree of the Milwaukee 
 ALONZO R. CUTLER, appellee, 
 
 District Court. 
 e i 5 
 
 EVERY bill in equity must contain in itself sufficient matter of fact, to 
 maintain the cause of the complainant, so that the same may he put in is- 
 sue by the answer, and established by proof. 
 
 The prools must correspond with the n'lc. r ations of he parties, and if 
 they go to matters not within the allegations, the court cannot act judi- 
 cially upon them as the ground for its decision. 
 
 Whether a bill contains ground 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 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 ii out defectively, it is pood cause for a general demurrer. 
 
 Where a complainant seeks relief ajrainst a contract, under the act of 
 Congress of the 3 Is; March, 1830. for the relief of the purch asers of the pub- 
 lic lands, and for the suppression of fraudulent practices nt 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 com- 
 plainant has no legal evidence of the contract, to entitle him to relief in 
 equity. 
 
 If a mortsrnjee is about to foreclose a mortgage by advertising and sel- 
 ling the premises, rx court of chancery will not enjoin him or interfere^ un- 
 til 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 posses- 
 sion of the X. E. fract'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 83000, or secure the same by mortgage on the 
 premises after the conveyance; which agreement is charged tu be 
 in the possession of Cutler. 
 
 On the execution of the agreement, Gale paid to Cutler $375; 
 and by two bonds, bound himself to pay to Cutler $5025, in difc 
 fercnt 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 ^ales, Gnlc was ready and desirous to purchase the
 
 REPORTS. 93 
 
 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, 
 Culler executed to Gale a deed for the premises, and at the same 
 time G:ile executed to Cutler his note for $0000, and a mortgage 
 on the premises to secure the payment according to the aforesaid 
 bonds and the first contract, which deed, note, aud mortgage were 
 placed in the hands of one Cushrnan, to be delivered respectively 
 to the parties, when CutJer should enter the premises according 
 to the first agreement. 
 
 On the 17th October, 1839, Cutler bought the land at public 
 sale for 81 25 per acre, and on the same day Cutler executed to 
 Gale a deed for the land for (he consideration of $5013 60, reser- 
 ving for himself one village lot, and Gale gave his note for that 
 sum, pnyable in one year with interest, and a mortgage on the 
 premises to secure the payment, the papers placed in the h'ands 
 of Cusliman having been cancelled. 
 
 The bill charges that Cutler has advertized the land for sale by 
 virtue of a power contained in the mortgage for that purpose, and 
 that he refuses to deliver up said mortgage and note to be cancel- 
 led, as he ought in equity lo do. 
 
 The bill prayed for an injunction against Cutler to restrain him 
 from foreclosing the mortgage, and a decree that the mortgage 
 and note should be-cancellcd and delivered up, and that Cutler 
 should pay to 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 appeal- 
 ed 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 toto, and decreeing the land lo 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 unlaw- 
 ful part of the contract according to the provisions of the act. Un- 
 der the law the contract is good for $1 25 per acre; it is the ex- 
 cess that is made void. Equity decisions and chancery practice
 
 94 REPORTS. 
 
 have nothing to do with the case. 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 se- 
 cures to the party the relief prayed for, and the couitis bound to 
 carry the law into effect. 
 
 FIELD, for appellee: 
 
 The bill docs 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 sa'e. Be- 
 sides, there was no contract fur 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 ofjasiice and equity to grant him relief. 
 
 Courts of equity will not relieve one party to a fraudulent con- 
 tract 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 re- 
 stored 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 evi- 
 dence to establish tne 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 evi- 
 dence 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 Chy. 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 Kq. 6, 10. 
 
 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 jus- 
 tice and equity, and if the appellant is without equity, his case 
 ought to be dismissed from the court. 
 
 WHITOX, ir. continuation: 
 
 The bill sets out u contiact fairly made without any allegation
 
 REPORTS. 95 
 
 of fraud, and asks the court to rescind it, only so far as the recis- 
 ion will be for the benefit of ihe appellant. This could not be de- 
 creed, 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 com- 
 mon law; it is a statute of pains and penalties, and must receive 
 a strict construction; and the court will not annul a contract un- 
 der it, unless it comes within its provisions in every particular. 
 The contract set up in the bill is not within it. There is no agree- 
 ment that Gale should pay any excess over what the land should 
 cost Cutler. By the first agreement Culler was bound to purchase 
 the land at the land sale, and he might have had to pay a greater 
 sum than he was to receive from Gale. His getting it at the min- 
 imum 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 obscuriiy, and it may be that the latter was, in 
 some degree, founded upon it, but the bill shows that they were 
 essentially different from each other. 
 
 ARNOLD, 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 with- 
 in its provisions the court is bound to give him the benefit of 
 them. 
 
 The design of the fourth section of the act is (o prevent fraudu- 
 lent 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 per- 
 son who may be oppressed by such practices. See the case of 
 Piatt vs. Oliver and others, 1 McLean's Rep. 301. 
 
 It is contended by the appellee, that if the court grar.ts 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
 
 96 REPORTS. 
 
 not govern it. If it comes within the 1 law, a part of the contract 
 may be rescinded and the rest remain valid. The 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 buck. 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 the act the law is made to har- 
 monize, 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 the purchase of the land by Culler. 
 The bill shows that they were made in pursuance of, and founded 
 upon the previous contract between the parties, made before the 
 land sale. 
 
 Opinion of the Court, by Judge MILLER: 
 
 The bill of complaint of John Gale, jr. filed in this case, sets 
 forth, that on or about the tenth day of March, 1833, Aionzo R. 
 Cutler, this defendant, was in possi.-ssion of the south-east frao 
 tional quarter of section three, township six, of range nineteen, in 
 Milwaukee county, the same then being the property of the Uni- 
 ted States. In the expectation and belief that the same would 
 shortly thereafter be sold by the United States, the said defendant 
 entered into an agreement, in writing, with complainant, to con- 
 vey 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 the sum of six thousand dollars, 
 or secure the payment thereof by a mortgage of the premises, af- 
 ter the same should have been conveyed to complainant by defend- 
 ant. 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 de- 
 fendant possession of the premises, which he continued to occupy 
 and hold until the day of the sale thereof by the government and 
 ever since, and for hir.iself and others, expended twenty thousand 
 dollars in improving said premises. At the time of (he sale of 
 the j-iid premises by the government, complainant was ready, wil- 
 ling and desirous to purchase the land in his own name, but said 
 defendant absolutely n fused 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.
 
 REPORTS. 97 
 
 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, 183S, and that, at the same time, complain- 
 ant executed to defendant his promissory note and mortgage of 
 said premises, to secure the payment of the balance of said pur- 
 chase money according to the condition of the bond referred to, 
 and agreeably to, and in pursuance of the said agreement; which 
 said note 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 prem- 
 ises 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 acre therefor, and received from said Receiver a duplicate re- 
 ceipt 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 ex- 
 pressed, 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 in- 
 terest, and to secure the payment thereof, executed and delivered 
 to defendant a mortgage of said premises, and the pa p/srs 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 prajed 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 com- 
 plainant, 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 
 
 13
 
 98 REPORTS. 
 
 joined, and after argument, the court dismissed the bill; from 
 which decree the complainant nppealcd. 
 
 Every bill must contain in itself sufficient matter of fact, per se, 
 to maintain the case of the complainant, so that the Fame may be 
 put in issue by the answer, and established by proofs. The proofs 
 must be accor ing to the allegations of the partie?, and if the 
 proofs go to matters not within the allegations, the court cannot 
 judicially act upon ihem 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 com- 
 plainant averred any matter, which if true, entitles him to th re- 
 lief prayed for, or any relief; or set it forth in the manner requir- 
 ed by the rules of equity? If the bill contains no equity, or sets it 
 out defectively, it is a good cause for demurrer generally. The 
 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 thir- 
 ty, entitled " an act for the relief of the purchasers of the public 
 lands and for the suppression of fraudulent practices at the public 
 sales of the lands of the United Slates." Whether this is a con- 
 tract 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 chancery 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, com- 
 pel 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. 30S; ibid. 439; 2 Dossans, 341; 3 Har. 
 &. John. 185; 2 Dallas, 92; 12 Scrgl. & Rawle, 46. Hence, pos- 
 sibly, the cruise of this provision in the statute. 
 
 Upon gencia] principles of equity, if a parly is proceeding in 
 law or equity to colled his notes and mortgage through the instru-
 
 REPORTS. 90 
 
 mentality 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 proceeding to fore- 
 close a mortgage by advertisement, a court of chancery will not 
 enjoin him, or interfere, until the grantor first does equity on his 
 part. 
 
 The judgment of the District Court is affirmed, with costs. 
 
 WELLS and ARNOLD, for appellant. 
 
 FIELD and WHITON, for appellee. 
 
 HEZEK1AH H. GEAR, appellant^ ^tal from a decree of the kva D- 
 THOMAS J.' PARISH, appellee, \ tnct Court ' 
 
 AN answer in chancery, directly denyingthe matters charged in the bill, 
 as within the knowledge of the defendant, will prevail against the bill, un- 
 less the answer is contradicted by two witnesses, or by one witness and 
 corroborating circumstances. 
 
 If the defendant sets up new matter in his answer, not in response to any 
 of the charges in the bill, it must be supported by .testimony ali unde, or it 
 cannot avail him in his defence. 
 
 If the defendant discredits his own answer by contradictory, unreasona- 
 ble, or irreconcilcable statements, or by statements contradicted by writ- 
 ten instruments on the same point, or by positive denials of charges of 
 which he could have no personal knowledge, then the testimony of one 
 disinterested witness will sustain the bill against the answer. 
 
 Parish filed a bill in chancery against Gear in the Iowa District 
 Court, nlledging 
 
 That in April, 1836, Gear called on him fora settlement of his 
 account, and produced his books, which showed an indebtedness 
 on the part of Parish of $3,700 00, and it was agreed that Parish 
 should secure this sum by a mortgage on sundry tracts of land in 
 Iowa county, payable in four months. After this was agreed up- 
 on, Gear staled that there were some other demands for brick and 
 freights that were not taken into the account, which amounted to
 
 100 REPORTS. 
 
 about $300 00, making in the whole about $4,000 00, which would 
 be the full sum of Parish's indebtedness. By agreement of the 
 parties, a bond and mortgnge were executed by Parish to secure 
 the sum of 4,200 00, which Gear admitted would cover all con- 
 tingencies, payable in four months. When the mortgage became 
 due, William S. Hamilton paid for Parish the amount thereof, 
 and $84 00 for interest, making in all $4,284 00, and took Gear's 
 receipt; and that since that period no dealings whaleverhave been 
 had between the parties. 
 
 After this, in October, 1837, Gear sent to Parish an additional 
 demand of $1562 38, as a balance of accounts, for which he de- 
 manded payment, and on which he brought suit in the Iowa Dis- 
 trict Court, still holding said bond and mortgage and refusing 
 either to deliver them up or release the property, although they 
 had been fully paid and discharged. Parish always denied the 
 justness of the additional claim or balance demanded of him, but 
 having sold a part of the land included in the mortgage io which 
 he was anxious to make a good title, (having received part of the 
 purchase money,) which he could not do while Gear held an out- 
 standing mortgage that he would not release, and being pressed, 
 he finally consented to confess judgment for the amount of the claim 
 in suit, which he did, with the express agreement with Gear's at- 
 torney that the bond and mortgage should be given up, and all 
 mistakes in the account corrected, and a stay of execution on the 
 judgment was agreed upon and entered. 
 
 After the stay had expired, Gear pressed Parish with an execu- 
 tion and was about to sell his property, and still held the bond and 
 mortgnge as a security for the judgment and refused to deliver 
 them up. 
 
 The bill charged that the judgment was fraudulently obtained; 
 that it was unjust; that the sum was included in the mortgage 
 which had been paid; and prayed for a perpetual injunction against 
 the judgment, and a decree that the bond and mortgage should 
 be delivered up and cancelled. 
 
 The answer of Gear, admits the execution of the mortgage, the 
 payment of the money by Hamilton and his receipt, but denies a 
 setilcment of accounts or that the mortgnge was for the whole 
 debt due him at the time, and states that Parish then owed him 
 about $5,700 00. He states that the mortgage was given to se- 
 cure the sum of $4,200 00, and such other sums as Parish owed
 
 REPORTS. 101 
 
 himj that the mortgage was not acknowledged or recorded, and 
 that the mortgage and bond were mislaid and could not be found: 
 admits that Ihe money ($4,200 00) was paid lo him by Hamilton, 
 1st August, 1836, but denies that said sum was paid or received 
 as payment of the mortgage, and states that, on the contrary, there 
 was still due from Parish over $1500 00: denies that he refused 
 to deliver up the rnorignge; admits that J. P. Hoge, his attorney, 
 called on Parish for the balance due of $1562 38, and that Parish 
 confessed judgment for that sum, but denies that the judgment 
 was obtained by any fraud of either Hoge or himself: is informed 
 and believes that Hoge agreed with Parish that the mortgage 
 should be delivered up and cancelled, and he has been ready and 
 willing that it should be done, but told Hoge that he thought the 
 mortgage ought not to be given up until the money was paid : de- 
 nies that the agreement with Hoge was the consideration that in- 
 duced Parish to confess tho judgment, but says that the only in- 
 ducement was because the debt was just. 
 
 He slates that on or about the 1st of February, 1839, he agreed 
 to execute a deed of release for the mortgaged premises to Parish, 
 and thereupon Parish's attorney drew a deed which he executed, 
 and about the same time Parish paid him $25000: denies all 
 fraud, &c., generally. 
 
 The mortgage mentioned in the bill and answer, and the bond, 
 were produced by Gear on the trial in the District Court: the 
 bond was for $5000, conditioned for the payment of $4200. 
 which was the amount of the mortgage. The mortgage was to 
 secure that sum alone, and nothing further, and was acknowledg- 
 ed before and certified by a notary public, but not recorded. 
 
 The only depositions taker, in the cause, and read upon the 
 trial, were those of William S. Hamilton and John Turney. The 
 deposition of Hamilton proved: That in the spring of the year 
 1836, he was present at the closing up of the business of com- 
 plainant and defendant, which was done at his suggestion, at 
 which time Gear presented to Parish his book, showing Parish's 
 indebtedness to be about $3,700, but Gear alledged that there 
 were other charges for freight on furnace irons, brick, and perhaps 
 some other small matters, and the parties agreed that the witness 
 should draw a mortgage to secure the debt, Gear stating that the 
 addition of $300 would cover all claims against Parish not men- 
 tioned in the books. The mortgage was drawn and executed by
 
 102 REPORTS. 
 
 Parish to Gear for the sum of $4,200, which was considered by 
 all parties as sufficient to cover all claims from Parish by Gear. 
 On the 1st August, 1836, witness paid to Gear, for Parish, $4,284 
 and asked Gear for the mortgage, which he declined giving up, 
 stating that the sum paid did not cover the account of Parish. At 
 the time when the mortgage was given, it was supposed that it 
 would cover the whole amount due from Parish to Gear, but it 
 was agreed that the balance that might be found to be due from 
 either party should be adjusted. 
 
 The deposition of Turney proved: That after Gear had sued 
 Parish, he, Parish, consulted the witness upon the expediency of 
 confessing judgment, and expressed great anxiuty to get his pro- 
 perty unencumbered for the purpose of making good conveyances: 
 That he, the witness, had a conversation with J. P. Hoge, attor- 
 ney for Gear, in which said Hoge pledged himself that the mort- 
 gage should be given up, and cancelled, and any error in the ac- 
 counts between the parties should be corrected. That the sole 
 object of Parish in confessing judgment was to get the mortgage 
 returned, and upon the promises of Hoge he advised Parish to con- 
 fess judgment. 
 
 The District Court decreed a perpetual injunction of the judg- 
 ment at law, from which decree Gear appealed to this court. 
 
 MOSES M. STRONG, for appellant: 
 
 From the facts in this case, the District Court ought not to 
 have gone further than to cancel the mortgage,- and the injunc- 
 tion against the judgment at law ought to have been dissolved. 
 The answer of the defendant denies all the equity of the bill. 
 According to all rules of chancery practice, the answer cannot be 
 defeated unless it is contradicted by two witnesses, or by one wit- 
 ness and strong corroborating circumstances. There is no part 
 of the bill to which more than one witness testifies, and there are 
 no corroborating circumstances to make the testimony preponder- 
 ate over the answer. The statements in the answer as to the set- 
 tlement of the accounts and execution of the mortgage are not 
 even contradicted by one witness, and the answer on this point 
 must prevail. 
 
 The defendant is called upon by the complainant to answer un- 
 der oath. The complainant makes him his witness in the cause; 
 and although he may, as in other cases, prove by other witnesses, 
 that the fcicts are different from what the defendant has stated them
 
 REPORTS. 103 
 
 to be, yet he cannot discredit his testimony, because he is his wit- 
 ness. 
 
 The withholding the mortgage by Gear, (and that is sufficiently 
 explained in the answer,) could he no sufficient cause for enjoin- 
 ing the judgment. It had never been recorded, and was no lien 
 upon the land, nnd could not produce any of the difficulties which 
 Parish seemed to fear. 
 
 The complainant has not shown himself entitled to any relief 
 as to the judgment; but if the court can, upon the facts of the 
 case, inteifere with that judgment, the most that it can do will be 
 to vacate it, and permit the parties again to litigate iheir rights in 
 a court of law, and this will be stretching the matter to the utmost 
 verge of authority. 
 
 BURNETT, for appellee : 
 
 Too much consequence seems to be given to the answer of a 
 defendant in chancery. Although, as a general principle, the 
 rule is admitted as it has been stated, yet it is not without excep- 
 tions. If the defendant states in his answer any matters that are 
 not in response to the bill, it cannot avail him, but must be sup- 
 ported by testimony ali unde. If the defendant makes contradict- 
 ory or unreasonable statements; or answers positively in relation 
 to facts not within his own knowledge, and of which he could not 
 possibly know with certainty; or if his statements are contradicted 
 by written documents that cannot be doubted; the court will con- 
 sider these circumstances as detracting from the weight of the an- 
 swer; and the court may, if the facts warrant it, consider the an- 
 swer as discredited entirely in the case. This principle is fully 
 established in the following cases: Hart vs. Teneyck and others, 
 2 John. Chy. Rep. 62, and the authorities collected in note (a) at 
 page 90. Mitchell vs. Maussin, 3 Monroe, 185. Whitington vs. 
 Roberts, 4 do. 173. Young vs. Hopkins and others, 6 do. 18; 
 Paynes vs. Colts and others, 1 Mun ford, 373. In applying the" 
 principle to this case, it will be found that the appellant has in 
 his answer denied positively- the circumstances and reasons, and 
 the conditions for confessing the judgment, as charged in the 
 bill, when he could not possibly know any thing about it except 
 from information He states that the mortgage was never ac- 
 knowledged or recorded, and yet the document itself, which had 
 always been in his possession, shows that it was acknowledged 
 and certified at the time when it was executed. That part of the
 
 104 REPORTS. 
 
 answer in relation to the execution of the mortgage is so unrea- 
 sonable in itself, and so contrary to the course of business with all 
 merchants of any discretion or prudence, that it is out of the pale 
 of belief. He does not deny any of the material allegations of 
 the bill upon that subject, except those in relation to the purposes 
 for which the mortgage svas given and the amount of the account, 
 which he says was at that time about $5,700. and that the mort- 
 gage was given to secure the sum of $4,200, and such other 
 sums as Parish owed him. The mortgage and bond both show 
 for themselves that $4,200 is all that could be collected upon 
 them, and that they were given for nothing else. The facts in the 
 transaction that cannot be doubted show, that, at the time, Parish 
 was willing to give a mortgage for the whole sum which he justly 
 owed, and that in this spirit the mortgage was raised from $3,700 
 to $4,200. What discreet business man is there, who, under 
 such circumstances, seeking security for his debts, when he had 
 an opportunity of getting it, would leave out so large an amount 
 as fifteen hundred dollars and upwards? There is none, and the 
 statement is too unreasonable to obtain belief. I think then that 
 the court will disregard the answer entirely, and consider the case 
 upon the bill and evidence alone; and under such circumstances^ 
 the fact of the bill being sworn to is entitled to some weight. 
 
 It is said that the mortgage, not being recorded, was no lien 
 on the land, and that the failure or refusal to cancel it, was no 
 disadvantage to Parish. Although not recorded, it was acknow- 
 ledged and certified, and could be placed upon record any min- 
 ute, as much to the prejudice of Parish as if it had been recorded 
 in the first instance. 
 
 The materialallegations of the bill are sufficiently supported by 
 the depositions and documentary evidence; and an important cir- 
 cumstance in the case, which the court will not overlook is, in all 
 this contest, Gear has never produced his books, or attempted to 
 show, in any way whatever, how or why, this enormous excess was 
 not taken into the account when the mortgage was given, nor stated 
 his account to show that the whole sum claimed was justly due,* 
 
 Opinion of the Court by Chief Justice DUNN: 
 
 Mr. Dcxv presented a written argument in the case, which was handed 
 to the court. Not having seen it since, and taking DO notes of it at the 
 time, it cannot be giveu here. [Rep.
 
 REPORTS. 105 
 
 This is an appeal trom a decree of the District Coort of Iowa 
 County, sitting as a court of chancery. 
 
 A bill of complaint was exhibited in said comtby the appellee, 
 Parish, against the appellant, Gear, setting up that the said Gear, 
 by his attorney, had fraudulently obtained, on the law side of said 
 court, a confession of judgment against him on false promises and 
 representations, for the sum of $1,562 58, on an account, or the 
 balance of an account, which had been settled with, and Secured 
 to, said Gear, by a bond and mortgage executed to him by Parish in 
 April, 1836, more than a year before the confession, and thai he 
 has had no dealings wilh Gear since, and calls on him to answer if 
 he has; which mortgage was discharged and paid off by Parish to 
 Gear about four months after date, being the time the money se- 
 cured by said morigage became due, when said Gear, on demand, 
 refused to give up said mortgage, as he should have done. 
 
 That in October, 1837, to obtain said confession, Joseph P. 
 Hoge, said attorney for Gear, promised said Parish, if he would 
 confess judgment for the said $1,562 58, the balance of the ac- 
 count claimed, that Gear would immediately surrender the mort- 
 gage to be cancelled; and that owing to the peculiar situation of 
 him, the said Parish, at the time, in relaiion to some of the mort- 
 gaged lands, he having sold the same, received a part of the pur- 
 chase money, and being bound to make conveyance, did consent 
 to confess judgment as aforesaid, not admitting that any balance 
 was due Gear, but influenced solely by the great desire he had ta 
 secure that to which in law and equity he was justly entitled, the 
 surrender to him of the mortgage, that he might convey, as he was 
 bound to do, by good and sufficient deeds or conveyances. That 
 said Gear falsely, fraudulently, and improperly refused to deliver 
 up said mortgage in pursuance of said promise so by his attorney 
 made, and insisted on by Parish in good faith; and said bill con* 
 eludes with a prayer for an injunction against said judgment at 
 law, and that, upon the final hearing, the said court of chancery 
 may decree a perpetual injunction against said judgment at law, 
 or decree to said Gear so much as upon proper proof may be just- 
 ly due to him, or such other relief as to equity may appertain. On 
 this bill injunction was awarded by the Chancellor. 
 
 The defendant, Gear, in his answer, denies that their full ac- 
 counts were settled in 1836, and a mortgage given to secure 
 $4,200 only, as the entire amount due him at the time, and al- 
 
 14
 
 106 REPORTS. 
 
 ledges that it was not only given to secure said four thousand two 
 hundred dollars, but such oilier sum as might be due from Parish 
 to him, and tint he has found since said mortgage was given, that 
 said Parish owed him $5,700. That the mortgage was given, but 
 never acknowledged and recorded; that the $4,203 were paid to 
 him by Parish's agent, which he applied to the credit of Parish's 
 account. He denies that said $4,200 was received in full satis- 
 faction of said mortgage or of the debt due by Parish to him, but 
 that there wasa balance then due of more than $1,500. He ad- 
 mits that his attorney, Jos. P. Hoge Esq. called on Parish in Ocio- 
 ber, 1837, for a balance of $1,502 58, and that Parish confessed 
 judgment for that sum at the lime set forth; but denies that it 
 was in any wise obtained by fraud, either on his part or on the part 
 of his attorney, Jos. P. Hoge, Esq. but was the free and voluntary 
 act of Parish. He admits that he is informed and believes that 
 his attorney consented that said mortgage should be surrendered 
 up to be cancelled, and avers that he has ever been ready and 
 willing, although he told his said attorney that he did not think 
 the mortgage should be surrendered until the debt was paid, and 
 that he has never since been able to find said mortgage. He de- 
 nies that the agreement with his said attorney, Hoge, was the con- 
 sideration that induced Parish to confess judgment, but insists that 
 it was because he believed the debt to be an honest debt, and that 
 a stay of execution for six months was agreed. 
 
 The defendant then set up new matter, riot responsive to any 
 of the charges in the bill. 
 
 Upon this bill and answer and replication, the mortgage and 
 bond of Parish to pay the $4200, receipt of payment by Parish, 
 and the depositions of Turney and Hamilton, taken on the part of 
 complainant, Parish, this cause came on to be heard in the Dis- 
 trict Court of Iowa, sitting as a court of chancery, and upon hear- 
 ing, the court decreed a perpetual injunction against the judgment 
 at law in favor of said Gear against said Parish. 
 
 It becomes the duty of this court to review the cause, and af- 
 firm or reverse the decree of the District Court. 
 
 The principle so long recognized in equity proceedings, that 
 fraud in the procurement will taint, cancel, and destroy, the obli- 
 gatory effect of all parol contracts, deeds, and even judgments, is 
 too well established to admit of discussion upon the soundness of 
 the doctrine at this day. The primary object of thecomplainant's
 
 REPORTS, 107 
 
 bill in this cause is, to avoid the effect of the judgment at law 
 against him, by showing fraud in its procurement. A court of 
 equity is the only place where he can be relieved. There is not, 
 apparent on the record of the confession of (he judgment at law, 
 any error in law; if there were, confession takes a way error. The 
 door of the courts of law is barred against him, on account of the 
 rigid and unrelaxing rules which govern in cases at law. The 
 charge of fraud in this case gives jurisdiction to the court of equity, 
 and when parties are properly in this court, it may decree finally 
 on all the matters connected with the subject matter of the fraud 
 charged. This, then, presents the relief prayed for secondly, the 
 surrender and cancellation of the. mortgage, and Gear's right tore- 
 cover for a balance on an account settled and closed by the bond 
 and mortgage. We must test the truth of the allegations of com- 
 plainant's bill by the evidence in the case, and this consists of the 
 defendant's answer to the matters charged in the bill, as of his 
 own knowledge, the written instruments filed in the cause, and 
 the depositions taken and read below. The defendant's direct 
 answer, as of his own knowledge, is properevidence, and must be 
 weighed and considered, unless contradicted by two witnesses, or 
 one with corroborating circumstances. If a defendant sets up 
 new matter, not in answer to any of the charges in the bill, it must 
 be supported by testimony all wide, or it cannot avail him in his 
 defence, but may prejudice, from the appearance it bears, of an at- 
 tempt to equivocate, by leading ofT from the gist of the matters ho 
 should answer. If it appears from the answer of a defendant, that 
 he discredits his answer by contradictory, unreasonable, irrecon- 
 cileable statements, or by statements contradicted by written in- 
 struments on the same point, or by positive denials of charges of 
 which he could have no personal knowledge, then the testimony 
 of one disinterested witness would preponderate over the weight 
 of testimony contained in his answer, and against the answer. 
 These principles are recognized in Mitchell vs. Maussin, 3 Mon- 
 roe, 185. Whitington vs. Roberts, 4 Monroe, 173. Young vs. 
 Hopkins and others, Monroe, 18. Pjynesvs. Coles and others, 
 1 Munford, 373. Hart vs. Tencyck and others, 1 John. Chy. 
 Rep. 62, and authorities referred to in note (a) page 90. Under 
 these rules, a majority of this court have considered the defend- 
 ant's answer herein, which is all the evidence in his favor in this 
 cause, and have opposed thereto the depositions of Turney and
 
 108 REPORTS. 
 
 Hamilton, disinterested witnesses, and the mortgage and bond re- 
 ferred to, placed on the files with the papers in this cause by de- 
 fendant on the hearing, and receipt of payment, and are of opinion 
 that the charges of the complainant, in his bill, are sustained by 
 proofs preponderating over the answer of (he defendant, which 
 does appoar to us to be discredited upon ifs face in part, and by 
 written instruments in other respects, leaving the complainant's 
 charges unimpaired, undenied, and supported by testimony. The 
 defendant, as the whole matter was before the court of equity, had 
 ample time and opportunity to introduce proofs to sustain the just- 
 ness of his account, and show that the items claimed were omitted 
 by mistake or otherwise, on the settlement of 1836, when the bond 
 and mortgage were given to secure the payment of the matters of 
 account then claimed and stated to be due to defendant by complain- 
 ant; but he slept and introduced no testimony whatever. Therefore, 
 on a review of the whole cause, we are of opinion that the decree 
 of the District Court of Iowa, sitting as a court of chancery, herein 
 be affirmed with costs. 
 
 Judge iMiLLER, dissenting from the opinion of the court, deliv- 
 ered the following separate opinion: 
 
 When 1 cannot agree with my brethren, I feel it incumbent upon 
 me, particularly in cases so important as this, to give my reasons 
 for my dissent. 
 
 Itseerns from the evidence that there had been running accounts 
 between these parties, for some time, and that Parish became in^ 
 debtcd to Gear for various matters, including liabilities to a large 
 amount. In May, 1838, the parties, according to the deposition 
 of William S. Hamilton, met to close up their business, and a 
 mortgage was given by Parish to Gear for four thousand two hun- 
 dred dollars, the amount then supposed to be claimed and due. 
 The witness states that at the time the mortgage was given, it 
 was supposed that the amount specified in the mortgage would 
 cover the debt, but that the balance, whatever it might be, whe- 
 ther in Parish or Gear's favor, was to be settled as just and cor- 
 rect. From the tenor of the deposition, I understand the mort- 
 gage to have been given as a security foi whatever might be due. 
 The witness says that Gear's books were there, but from the facts 
 respecting the manner in which the sum was stated, and the un- 
 derstanding respecting whatever balance there might be, it re- 
 quires no stretch of imagination to perceive that there may have
 
 REPORTS, 109 
 
 been liabilities on other transactions not recollected at the time, 
 The mortgage nyas payable in four months, and was paid when due, 
 and Parish received, and produced on the trial, his receipt for the 
 four thousand two hundred dollars. The mortgage was never re- 
 corded, but was kept by Gear, who resides in Illinois. It does 
 not appear that the paper was ever in Wisconsin, until it was pro- 
 duced at the trial, by Gear, for cancellation; and ho avers that he 
 \vould have given it over to Parish, but that he could not find it. 
 In October, 1837, the claim of Gear against Parish was put into 
 the hands of Mr. Hoge, a lawyer of Galena, for collection. This 
 claim, deducting the credit of the mortgage, and the amount of 
 four thousand two hundred dollars paid thereon, left a balance of 
 upwards of fifteen hundred dollars due to Gear, to which he 
 swears in his bill; for the recovery of which suit was instituted in 
 the District Court of Iowa county, against Parish, and after con- 
 sulting counsel, he voluntarily confessed judgment thereon for 
 the balance claimed. The defendant rested satisfied with this 
 judgment against him until September following, when he filed his 
 bill for an injunction of it, alledging fraud. He alledges that he 
 gave the judgment for the purpose of procuring, from Gear, the 
 mortgage, and that Mr. Hoge promised to have the mortgage sur- 
 rendered to him. The only proof of this is proof of the declara- 
 tions or acknowledgments of Mr. Hoge that he did say so, and this 
 is proved by the counsel of Parish, whom he had consulted before 
 he confessed the judgment. If there was any thing in this, it was 
 competent to have Mr. Hoge testify; he was a competent wit- 
 ness, and his declarations were not the best evidence. But there 
 is nothing in it to found a decree upon to enjoin this judgment. 
 For before the judgment was confessed, the whole account was 
 presented to Parish, on which he consulted counsel; he then 
 came into court, and acknowledged it to be correct by his confes- 
 sion of judgment. Why should Parish confess a judgment for up- 
 wards of fifteen hundred dollars, and thereby create a lien on his 
 lands, for the purpose of getting into his possession a mortgage 
 that was never recorded, and merely in the possession of a man in 
 Illinois, and for which he held a full and entire release and dis- 
 charge? It is too preposterous to admit of serious consideration. 
 And if there is any fraud proven in obtaining this judgment, on the 
 part of Gear or Hoge, I cannot see it. 
 
 All the pointed allegations in the bill are fully and positively
 
 110 REPORTS. 
 
 denied by the defendant, Gear, and all the testimony in the case 
 was the deposition of Hamilton relating to the settlement, and 
 the deposition of Turney, who was the attorney of Parish, and 
 consulted by him before he confessed the judgment, who proves 
 what Parish said to him, and the above acknowledgment of Hoge. 
 This was not evidence under any circumstances, and should not 
 be considered. Jf such testimony were allowed, a client and hia 
 attorney can make as much evidence as may be necessary to gain 
 any cause. In addition to this, what look place between client 
 and counsel respecting a cause, as in this case, should not be re- 
 ceived as evidence; Graham's Practice, 39. Mr. Hoge could 
 have been examined, and consequently, his acknowledgment was 
 not, in the first place, the best evidence. But it was as to the 
 surrender of the mortgage only, not as to the legality or honesty 
 of the consideration of the judgment. But there is nothing in 
 this, as at the trial the mortgage was in court to be cancelled, and 
 the defendant had a receipt in full for its amount. 
 
 Even if Hamilton's testimony was conclusive, and )eft no doubt 
 or uncertainty as to the real balance between the parties, there is 
 but the testimony of one witness to the transaction, which is not 
 sufficient, unless accompanied with strong corroborating circum- 
 stances; 9 Cranch, 153. The corroborating circumstances relied 
 upon are the bond and mortgage, and these cannot be used as a 
 substitute for another witness, when the balance, by agreement, 
 was to be afterwards settled, and for that balance a judgment was 
 confessed upon consultation and professional advice. In the case 
 of the Marine Insurance "Company vs. Hodgson, 7 Cranch, 322, 
 which was a bill to enjoin a judgment on the ground of a misrepre- 
 sentation of the age and tonnage of the vessel, whereby the under- 
 writers were induced to agree to a high valuation, and thereby de- 
 frauded, Marshall C. J. says, without attempting to draw any pre- 
 cise line to which courts of equity will advance, and which they 
 cannot pass, in restraining, parties from availing themselves of judg- 
 ments obtained at. law, it rnay safely be said, that any fact which 
 clearly proves it to be against conscience to execute a judgment, 
 and of which the injured party could not have availed himself in 
 a court of law, or of which he might have availed himself at law, 
 but was prevented by fraud or accident, unmixed with any fault 
 or negligence of himself or agent, will justify an appeal to a court 
 of chancery. A defence cannot be set up in equity, which has
 
 REPORTS. Ill 
 
 been fully and fairly tried at law, although it may be the opinion 
 of that court that the defence ought to have been sustained at 
 law. The equity of the applicant must be free from doubt. And 
 the court there decided, that as the parly was not prevented frorn 
 making his defence at law, by any act of the plaintiff, or by any 
 positive rule which disabled him from doing so, a clear case was 
 not made out for the interposition of a court of chancery, nnd the 
 injunction was denied. Such should have been the decision in 
 this case, for that was stronger than this. Here the mortgage was 
 given under an understanding that whatever balance should ap- 
 pear on either side should be afterwards settled; the setllement, 
 too, whatever it was, was only proven by one witness, the mort- 
 gage was paid and receipted, and never recorded, the balance af- 
 terwards presented and demanded, and sued for, when it was pro- 
 bably filed with the declaration, and after consultation with coun- 
 sel, ajudgment was confessed for it, which remained nearly one 
 year before any application was made to disturb it, and then on a 
 pretence of the non-surrender of the paid mortgage, which was in 
 court at the trial for cancellation. The party could have had all 
 these matters investigated at law, he was not prevented in any 
 way. and then the accounts between the parties could have been 
 fully settled. This, in my opinion, does not present any such 
 case as requires the extraordinary decree of a perpetual injunc- 
 tion. 
 
 If the court was fully satisfied that the accounts should be exa- 
 mined, possibly the judgment might have been opened, or an is- 
 sue directed, to try and investigate the same. Such a practice has 
 been pursued; 2 W. C. C. R. 433. 14 Sergt. &, Raw)e, 137. 
 Relief might be obtained in a proper case on a writ of error coram 
 nobis; 1 Rawle, 323. This is the most the party could ask, and 
 it is very doubtful whether, under all circumstances, the couit 
 should even go thus far, but certainly no farther. 
 
 MOSES M. STRONG, for appellant. 
 
 BUKNETT and DUNN, for appellee.
 
 112 REPORTS. 
 
 BRATON BUSHEE, plaintiff in error,} 
 
 v*. > Error to Grant county. 
 
 JOHN WRIGHT, defend ant in error, ) 
 
 IN actions njninst sevprnl defendants, whereadeclarntion is used as the 
 first process, a copv of the declaration must be personally served on all of 
 the defendants before a default can be entere:! aga ; nst any ; and it is error 
 to take a default against one before all are personally served. 
 
 Wright brought an action of assumpsit against Cyrus Harperand 
 Braton Bushee in the Grant District Court, founded on ihe fol- 
 lowing wriling: 
 
 "VAN BUREN, December 6, 1837. 
 "County of Grant, Territory of Wisconsin: 
 
 Articles of agreement made and entered into between John 
 Wright, of the county aforesaid, of the first part, and Cyrus Har- 
 per and Braton Bushee, party of the second part. The said John 
 Wright has this day sold to Cyrus Harper and Braton Bushee 
 one-third of a certain mineral lot known by the name of the Wright 
 &. Hudson lot, and all his mineral that is on the ground, for the 
 consideration of eight hundred dollars in hand and two hundred 
 more, provided it comes out, as soon as the mineral is raised. 
 (Signed) JOHN WRIGHT, 
 
 CYRUS HARPER, 
 BRATON BUSHEE." 
 
 The suit was brought to recover the $200, claimed to be due 
 by proviso. The declaration contained two counts; in one of 
 which it was averred that the $200 was to be paid when 81000 
 worth of mineral should be raised on the ground, and averring 
 that that quantity had been raised; the oilier averring that it was 
 to be paid when $200 worth should be raised, and averring that 
 amount to have been raised. 
 
 The suit was commenced by declaration as the first process, 
 which was duly served on Bushee, and returned, not found, as to 
 Harper. Bushee was defaulted in the clerk's office for want ofa 
 plea, and no discontinuance as to Harper was entered at any time. 
 At the September term, 1840, being the first term after the com- 
 mencement of the suit, Bushee, by his counsel, conceiving tho
 
 REPORTS. 113 
 
 default to be irregular, made a motion to have it set aside, but did 
 not pay the costs. The cause was not reached on the calender 
 for trial at that term, and the motion was not disposed of until af- 
 ter the petit jury was discharged, when it was overruled by the 
 court. Bushee then offered to file an affidavit of merits, pay the 
 costs, and plead the general issue, and moved on those grounds to 
 set aside the default, which motion was also overruled; and, on 
 motion of Wright, the default was made absolute and a writof in- 
 quiry awarded, when the cause was continued until the next term. 
 At the March term, 1841, Bushee filed an affidavit of merits and 
 of reasons in excuse for not pleading before the default was en- 
 tered, and again moved to set aside the default, which motion 
 was also overruled. At the same term, the venue was changed, 
 upon his application, to Iowa county. At the September term, 
 1841, of the Iowa District Court, the writ of inquiry was executed, 
 upon the execution of which, the plaintiff below offered to read as 
 evidence the depositions of three witnesses, each of which testi- 
 fied that the meaning of the agreement sued on, as understood 
 among miners, was to pay the 200 as soon as the first $200 
 worth of mineral came out of the ground. The defendant object- 
 ed to these depositions, but the court overruled the objection and 
 permitted the depositions to be read. The defendant below of- 
 fered in evidence two depositions, taken in the presence of the 
 adverse party, who cross-examined the witnesses, proving that 
 Wright had not the interest in the ground that was specified in 
 the agreement, and one of them testified that Wright had admit- 
 ted that he was not to be paid the $200, until 1000 worth of min- 
 eral should come out of the ground. The plaintiff objected to 
 these depositions on the ground that the facts proven went to de- 
 feat the plaintiff's right of action, and on the ground of informal- 
 ities in taking and certifying them, and the court sustained the 
 objection and rejected the depositions, upon which the court de- 
 cided " That by the default the defendant had confessed the 
 plaintiff's right of action as declared and averred in his declara- 
 tion, and that the jury were not permitted to inquire into any mat- 
 ters that would tend to defeat the plaintiff's right of action." Af- 
 ter the verdict, Bushee moved for a new trial and in arrest of 
 judgment, both of which motions were overruled by the court and 
 final judgment rendered against him. Exceptions were taken to 
 the various decisions of the court in the progress of the cause, 
 
 15
 
 114 REPORTS. 
 
 and -this writ or error is prosecuted to reverse the judgment of tbo 
 court below. 
 
 The plaintiff in error assigned the following errors in the pro- 
 ceedings of the District Court: 
 
 1. The default taken and entered in the clerk's office in vaca- 
 tion, was erroneous. 
 
 2. The court erred in overruling the motions to set aside the 
 default made at the September term, 1840, of the Grant District 
 Court. 
 
 3. The court erred in ordering the default of the defendant to 
 be entered, and in awarding a writ of inquiry of damages at the 
 September term, 1840, of the Grant District Court. 
 
 4. The court erred in overruling the motion to set aside the 
 default made at the March term, 1840, of the Grant District 
 Court. 
 
 5. The District Court of Iowa county erred in permitting the 
 evidence offered on the part of the plaintiff below, to be read in 
 evidence to the jury. 
 
 6. The court erred in rejecting the evidence offered by the de- 
 fendant below, and in deciding tint by the default the defendant 
 had confessed the plaintiff's right of action as declared and aver- 
 red in his declaration, and that the jury were not permitted to in- 
 quire into any matters that would tend to defeat the plaintiff's 
 right of v action. 
 
 7. 8. 9. The court erred in ovenulir.g the motion for a new 
 trial, in arrest of judgment, and in entering judgment against the 
 defendant below. 
 
 BUKNETT, for pl'tff in error: 
 
 The default taken in this case in the clerk's office was irregular. 
 At common law, a plaintiff cannot proceed against one of sever- 
 al joint contracting parties, until all arc brought before the court 
 in some way; By the statute of the Territory, before he can so 
 proceed, he must discontinue as to the defendants not found, and 
 amend his declaration. Revised Slat. 207, 208, sec. G7, 68. 
 Where the declaration is the first process, Z/the defendants mr.st 
 be personally served. Revised Stat. 1201, sec. 10. This default, 
 then, was irregularly taken, and ought to have been set aside up- 
 on bare motion. 1 Paine &, DUCT'S Practice, (i^5. 
 
 If the default was regular, still it ought to have been set aside 
 upon an affidavit of merits, pleading isstiubl y, and payment of costs,
 
 REPORTS. 115 
 
 where a trial has not been lost. 1 Tidd's Prac. (11 Ed.) 567; 1 
 Paine & Duer, 621, 622; Davenport vs. Ferris, 6 John. Rep. 
 131 ; Talmatlge vs. Stockholm and another, 14 John. Rep. 321 ; 
 2 Strange, 975; 4 Burr. 1996. The provision of our statute 
 (page 209) gives the defendant the right to set aside the default 
 within a limited time, even when regularly taken, upon payment 
 of costs, without any affidavit of merits. It was decided below, 
 that this took from the court all discretion upon the subject. This 
 is not warranted by fair construction. At common law, the court 
 was bound to exercise a sound discretion upon the circumstances, 
 and if the defendant made a proper case in due time, the court 
 was bound to set aside the default, otherwise it might refuse. 
 The statute is cumulativej and not in derogation of the common 
 law. By it, a right is secured to the defendant which he had not 
 before, of setting aside a default without an affidavit of merits, or 
 any exercise of the discretion of the court. 
 
 The court below erred, as we think, in permitting witnesses who 
 were not present at the making of the contract, to testify as to 
 the meaning of the agreement. A written instrument must ex- 
 plain itself unless it becomes ambiguous in its application, by ex- 
 trinsic facts; and in such case, it can only be explained by the tes- 
 timony of persons acquainted with the original contract between, 
 the parties, and who can testifv as to their intention and meaning 
 in making the contract. 2 Starkie, 544, '5, '6, '7, '8, '9. 
 
 It is also conceived that the District Court erred in its decision 
 upon rejecting the evidence offered by the defendant below. Al- 
 though it is admitted to be law, that where a default is regular, 
 the defendant cannot defeat the recovery entirely, yet he has a 
 right to show by competent testimony before the jury of inquest, 
 any matter that will reduce the plaintiff's damages, even to a 
 nominal sum. 1 Paine & Duer, 634, 635, and the authorities 
 there cited. 
 
 DUNN, for deft in error: 
 
 At common law, a default may be taken against one of several 
 defendants; so it may by our statute; and joint defendants may 
 plead separately. The service of the declaration was sufficient to 
 bring Bushec into court, the same as any other process. It was 
 duly served on him, and the default was regularly taken against 
 him for his own neglect to plead, and it could only be set aside in 
 the manner and. in the time pointed out in the statute. The mo-
 
 116 REPORTS. 
 
 lion that was made to set it aside upon an affidaritof merits would 
 have been sufficient at common law, but under the statute, it could 
 not be sustained after the jury was discharged. The statute con- 
 trols the court and loaves it no discretion upon ihc subject. 
 
 As a general principle, oral testimony cannot be received to ex- 
 plain written instruments; yet in particular cases such testimony 
 is admissible. To explain words which are used in relation to 
 particular customs, arts, professions, or business, and which, to 
 those unacquainted with their application would be unintelligible, 
 parol testimony may be received. Roscoe on Ev. 10, 11. 
 
 The depositions of the defendant were properly rejected by the 
 court below. There was no notice given, nor were they certified 
 according to law; and although the plaintiff attended and cross- 
 examined the witnesses, that does not dispense with the positive 
 requisitions of the statute, which require that notice shall be giv- 
 en or waived in writing. Besides, the matter of the depositions 
 was inadmissible in the case as it stood under default, as it went 
 to defeat the plaintiff's right of action. 
 
 Opinion of the Court, by Judge IKVIX: 
 
 This case was commenced by declaration in the District Court 
 of Grant county, by John Wright, the defendant in error, against 
 Braton Bushee, the plaintiff in error, and Cyrus Harper, and after- 
 wards, on a change of venue, it was taken to the county of Iowa. 
 Process seems to have been served on but one of the defendants, 
 and as to the other, returned not found. By " an act concerning 
 proceedings in courts of record," a declaration may be the first 
 process, and if a copy of it, together with the rule that the defen- 
 dant plead within twenty days after service of the same, be ser- 
 ved personally on said defendant, and he should fail to plead, a de- 
 fault is to be enteied against him. In this case, Bushee, the on- 
 ly one of the defendants served with process, did not so plead, 
 and a default was entered against him, to take off which, he ap- 
 peared and made a motion at the next District Court, which mo- 
 lion was overruled. The principal question, and certainly the 
 first in the cause is, did the court err in so deciding? By the six- 
 teenth section of said act it is provided, that "upon due proof of 
 the service of a declaration personally on all the defendants in 
 the cause, their appearance shall be entered by the clerk of the 
 court, and their default may be entered for not pleading, and the 
 same proceedings may be had against them in all respects as if
 
 REPORTS. 117 
 
 they had appeared." From the reading of the law, all must be 
 personally served with process. In the State of New York, there 
 was a statute with similar provisions, and the court (see 7 Wen- 
 dell; 517, and 9 Wendell, 433,) held, " that in a suit commenced 
 by declaration against several defendants, the plaintiff could noi 
 proceed until all the defendants were served with the declara- 
 tion." The court is of opinion, that when declaration is the first 
 process, and there be more than one defendant, process must be 
 served personally on all, and that it is erroi to take a default when 
 only a part of the defendants are served with process. The de- 
 fault taken in this case, being taken without authority of law, 
 should have been set aside, and the District Court erred in over- 
 ruling the motion made to that effect. 
 
 From the uncertainty in the assignment of the error, (the only 
 one remaining undisposed of by the point already noticed,) the 
 court does not deem it necessary to decide any thing in relation 
 to it, particularly as it relates to matters about which the authori- 
 ties are numerous. It is the opinion of the court, that for the error 
 noticed, the judgment of the District Court be reversed with costs, 
 and that the same be so certified, that such other and further pro- 
 ceedings may be had therein as to lasv may appertain. 
 
 BURNETT and MOSES M. STRONG, for pl'tff in error. 
 
 DUNN, for deft in error.
 
 118 REPORTS. 
 
 IN BANKRUPTCY, AUGUST 29xn, 1842: 
 Before Judges IRVIN and MILLER. 
 
 In the matter of 
 JOHN A. McKISSON 
 
 ? 
 ,* A 
 
 IT seems objections were made to the bankrupt's discharge on 
 the ground, that he had not scheduled and given up to the assignee, 
 for the benefit of his creditors, certain improvements on the pub- 
 lic lands of the United States. Upon this question, the Court 
 said: 
 
 The Court does not conceive the improvements on the public 
 lands, as mentioned in the assignee's report herein, to be such an 
 interest as can be passed to, or vested in, the assignee for the ben- 
 efit of the creditors of the bankrupt. 
 
 NOTE. From the above decision, it would seem to follow, that mere pos- 
 session and improvements on the public lands, are not subject to sale under 
 execution ; that a judgment at law is no lien upon them; and that a mort- 
 gage upon them would not vest any right of foreclosure in the mortgagee. 
 [REP.
 
 REPORTS. 119 
 
 Cases argued and decided at the July Term, 1843. 
 
 UNITED STATES, ) 
 
 rs. > Error to Iowa county. 
 
 BENJAMIN SALTER. ) 
 
 WHERE a defendant has been tried upon an indictment or information, 
 and a verdict of acquittal has been rendered, no writ of error lies at the in- 
 stance of the prosecution, to reverse the judgment. 
 
 If a court quashes an indictment or arrests a judgment illegally, a writ 
 of error may be prosecuted in such case, at the instance of the prosecution, 
 to reverse the decision. 
 
 Salter was indicted by the grand jury of Iowa county for forge- 
 ry, and upon the trial the District Attorney offered certain evi- 
 dence in support of the prosecution which was rejected by 
 the court, to which decision exceptions were taken. A verdict 
 of acquittal was rendered by the juiy, and the District Attorney 
 sued out this writ to correct the errors of the court below, in re- 
 jecting the evidence offered by the prosecution on the trial of tho 
 case. 
 
 The cause came up for argument at the July term, 1842; when 
 tta question was suggested by the court, whether a writ of error 
 could be sustained at the instance of the prosecution after a ver- 
 dict of acquittal had been rendered? The matter was submitted 
 to the court, who took the same under advisement until the pres- 
 ent term, when Judge MILLER delivered the following opinion of 
 the Court, dismissing the writ. 
 
 The defendant was indicted in the District Court of Iowa coun- 
 ty for forgery. At the trial the District Attorney offered to give 
 certain facts in evidence, for the purpose of making out the case, 
 which were rejected by the court. The defendant was acquitted 
 and discharged. A writ of error was sued out by the District At- 
 torney, and this decision of the court assigned for error. 
 
 The first question to be settled is, should this court take cogni- 
 zance of this case? 
 
 The practice of revising cases by appeal and writs of error, on 
 the part of the prosecution, upon various decisions of the inferior
 
 120 REPORTS. 
 
 court, upon matters of law, is quite common, but not after a verdict 
 of not guilty. In the case of The Commonwealth vs. McKisson 
 and others, 8 Sergt. &. Rawle, 420, the defendants were indicted 
 for a conspiracy lo cheat. On motion of the defendants, the in- 
 dictment was quashed, upon which the Commonwealth sued out 
 a writ of error, and the supreme court reversed the decision, and 
 directed that the record be remitted to the court below with or- 
 ders to proceed in the indictment. In the case of The Common- 
 wealth vs. Taylor, 5 Binney, 277, it appears that the defendant 
 had been convicted, and the court arrested the judgment on the 
 ground that the offence charged was not indictable; and the re- 
 cord was brought to the supreme court by writ of error, where the 
 judgment was reversed, and the record was remitted to the quar- 
 ter sessions, that they might proceed to give judgment against the 
 defendant. The same practice is pursued in New Yoik, but in a 
 more formal and technical manner. In the case of The People 
 rs. Stone, 9 Wend. 182, the indictment, on the motion of the de- 
 fendant, hud been quashed, and at a subsequent session of the 
 court, the District Attorney, for the purpose of enabling him to 
 remove the case to the su preme court by writ of error, was permit- 
 ted to make a record, stating judgment to have been rendered for 
 the defendant as on demurrer to the indictment. The supreme 
 court allowed this proceeding, as no writ of error can be brought 
 in that State on an order quashing an indictment. In the case of 
 The People vs. the Onond,aga C. P. 2 Wend. 631, it was held to 
 be a proper course to be pursued in a criminal case, where the 
 court below had arrested the judgment. The powers and juris- 
 diction of the court are not determined, either by an order arrest- 
 ing the judgment or quashing the indictment. A writ of error, 
 sued out on the part of the prosecution, upon the judgments and 
 decisions of the court upon questions of practice, can be sustain- 
 ed; except where the defendant has been acquitted by a verdict, 
 or convicted, and no motion in arrest of judgment made and sus- 
 tained. It is right that it should be so, for a court might illegallj 
 quash an indictment or arrest a judgment when the public would 
 otherwise have no redress. The usual course is, after the indict- 
 ment against the defendant has been quashed, to prefer a new and 
 more rc-gular one; 1 Chit. Grim. Law, 250, 260; Bacon's Abrg't, 
 Jr.diclment, K.; Comyn's Digest, Indictment, H. And if the 
 judgment is ultimately arrested, all the proceedings will be set
 
 REPORTS. 121 
 
 aside; but it will be no bar to a subsequent indictment, which the 
 prosecutor may immediately prefer; 1 Chitty's Crim. Law, 542; 
 Com. Dig. Indictment, N.; 4 Black. Com. 375. For the defers 
 dant's life or liberty has never been in actual jeopardy, and the 
 ends of public justice have not been satisfied, either in his con- 
 viction or acquittal. 
 
 In 4 Black. Com. 381, we find it laid down, that there hath yet 
 been no instance of granting a new trial, where the prisoner was 
 acquitted upon the first. If the jury, therefore, find the prisoner 
 not guilty, he is then forever quit and discharged; except he be 
 appealed of felony within the time limited by law. And upon 
 such acquittal or discharge for want of prosecution, he shall be 
 immediately set at large. Also, in 2 Hawkins 1 P. C. 442. In 
 1 Chitty's Crim. Law, 535, it is stated, that a new trial cannot, 
 in general, be granted on the part of the prosecu lion, after the de- 
 fendant has been acquitted, even though the verdict appears to be 
 against evidence. No new trial can be granted where the defen- 
 dant has been acquitted, although the acquittal was founded up- 
 on the misdirection of the judge; 6 East. 315; 4 Maule & Sel- 
 wyn, 337; 1 Chit. Rep. 352; 2 Tidd'sPrac. 942; 1 Starkie's N. 
 P. 516; 1 Wilson, 298; 12 Mod. 9. The same doctrine is sta- 
 ted in 6 Bacon's Abrg't, title, Trial, 9, page 675, 676. If the de- 
 fendant, in an indictment or information, have been acquitted, the 
 court will not grant a new trial, notwithstanding the verdict were 
 contrary to evidence. But it seems to be the better opinion, that 
 when the verdict was obtained by fraud of the defendant, or in 
 consequence of irregularities of his proceedings, as by keeping 
 back the prosecutor's witnesses, or neglecting to give due notice 
 of trial, a new trial will be granted; 1 Chit. Crim. Law, 536. The 
 same doctrine seems to have been quoted favorably by the su- 
 preme court of Massachusetts, in the case of The Commonwealth 
 vs. Green, 17 Mass. Rep. 526. In the case of The People vs. 
 Mather, 4 Wendell, 262, the supreme court of New "York says; 
 that " in criminal cases, where the defendant has once been ac- 
 quitted, the reluctance to grant new trials has ever been very great. 
 It is a conceded rule of law, not to grant a new trial in such cases 
 because the verdict has been against evidence. Whether a new 
 trial can be granted where there has been acquittal, without in- 
 fringing the rights of the defendant, even where the court has 
 misdirected the jury, is now an unsettled question." But in the 
 
 16
 
 122 REPORTS. 
 
 case of The People vs. Comsiock, 8 Wendell, 549 ; where the 
 defendant had been acquitted, a new trial was moved for on the 
 ground of the misdirection of the jury by the presiding judge, the 
 English doctrine was approved, and the motion denied. 
 
 It is a maxim of the law, that no one shall be tried twice for the 
 same offence; or his life or person brought again into jeopardy, 
 where there has once been an acquittal. And the same rule holds 
 throughout, in all cases upon penal statutes, and upon all indict- 
 ments and informations for misdemeanors, as well as felonies. 
 The State vs. Wright, 2 South Car. Rep. 517; The State vs. De 
 Hart, 2 Halst. N. J. Rep. 172; Overseers of the Poor vs. Lunt, 
 15 Wendell, 565. The prohibition in the Constitution of the U. 
 States, " nor shall any person be subject for the same offence to 
 be twice put in jeopardy of life or limb," is an old maxim of the 
 common law, which means, that no person shall be tried a second 
 time for the same offence, after a trial by a regular and competent 
 jury, upon a good indictment, whether there be a verdict of ac- 
 quittal or conviction; United Slates vs. Gilbert, 2 Sumner's C. C. 
 Rep. 19. But this rule is now settled throughout the United 
 States, that the courts can grant a new trial, at the instance of 
 the defendant, in capital as well as in other cases. 
 
 It seems, that in a case where a new trial could be of no bene- 
 fit to the party, it will not be granted; Duncan vs. Dubois, 3 J. 
 C. 135. The same rule is applicable where a reversal of the judg- 
 ment is sought upon a writ of error. Now apply this principle to 
 this case. If the prosecution should prevail in this writ, and re- 
 verse this cause for the alledgcd error, it would end there; for the 
 court could not award a venirie facias de novo. We could not, 
 on reversal, order our judgment to be certified to the District 
 Court, with directions to have the defendant apprehended and put 
 a second time on his trial. This would be a violation of every 
 principle of criminal justice. If this practice were tolerated, the 
 court would be required to sign a bill of exceptions, at the in- 
 stance of a prosecutor, who might be urged to it for purposes of 
 revenge, when the court, in order to afford him the full benefit of 
 his exceptions, would have to retain ihe defendant, cither in cus- 
 tody or under bail, notwithstanding he had been acquitted by the 
 verdict of a jury. 
 
 A writ of error is not a continuation of the suit below, because 
 it may be sued out by a new attorney, without obtaining a rule
 
 REPORTS. 123 
 
 for a change of attorney; 7 T. R. 337; 2 John. Rep. 287; 19 
 Wendell, 152; and in many respects it is considered as a ne\y 
 action; 2 Tidd'sPrac. 1196; which we have shown is not allowa- 
 ble in criminal cases. On page 376 of the Statutes, is an act to 
 provide for appeals, new trials, and exceptions in criminal casesj 
 but it is exclusively for the benefit of the defendant upon convic- 
 tion. And by the seventh section of the act, notwithstanding the 
 judge who tried the cause has allowed and signed a bill of excep- 
 tions at the instance of the defendant, yet, if it should clearly ap- 
 pear to him that such exceptions are frivolous, immaterial, or on- 
 ly intended for delay, he may enter judgment and award sentence, 
 in such manner as he imy deem reasonable. Should, then, this 
 court, after reflecting npon the objects and policy of this statute, 
 and the principles and practice above stated, allow or sustain a 
 writ of error, in the absence of all statutory provisions, at the in- 
 stance of the prosecution, after a verdict of not guilty had been 
 finally pronounced and the defendant discharged? Certainly not. 
 The writ must be quashed. 
 
 WILLIAM R. SMITH, District Attorney. 
 
 F. J. DUNN, for deft in error. 
 
 DAVID B. H.lLL,pl>ffin error, 
 
 Error to Dane county. 
 EDWARD BLOOMER, deft m error, ' 
 
 ,i 
 
 A -WRIT of error will not lie to reverse an interlocutory judgment. The 
 judgment must be final, leaving nothing to be done in the cause, before it 
 can be brought into the supreme court for reversal. 
 
 Hill brought an action of replevin against Bloomer, in the Dane 
 District Court. On the motion of Bloomer, the Court quashed 
 the writ, and rendered a judgment for damages in favor of the de- 
 fendant, and awarded a writ of inquiry which has not been yet ex- 
 ecuted. Hill sued out a writ of error to reverse the judgment of 
 the District Court; and at the present terra, Bloomer, by his coun-
 
 124 REPORTS. 
 
 sel, moved the court to dismiss the writ because no final judg- 
 ment had been rendered in the case. 
 
 DUNN, for deft in error, and in support of the motion: 
 
 The record in this case shows thai no final judgment has been 
 given. A judgment for damages was given upon quashing the 
 writ, and a writ of inquiry awarded which has not been executed. 
 The judgment is only interlocutory, and a writ of error will not 
 lie in such cases. This is the rule of law in all cases, and the 
 Organic Act only authorizes the writ of error where the judgment 
 is final. 
 
 AR:SOLD, contra: 
 
 This is not an ordinary interlocutory judgment given in the pro- 
 gress of the cause, but one that afiectually concludes the rights 
 of the parties as to the subject matter of the suit, and for this pur- 
 pose it is final; see Stat. Wis. 275, sec. 30, upon which the judg- 
 ment was rendered. The judgment is final as to the rights of the 
 parties in respect of the property replevied, and the damages are 
 only accessory to the judgment. In such a case a writ of error 
 will lie to reverse the judgment before the writ of inquiry is exe- 
 cuted; 9 Viner's Abridgt. 505; Graham's Prac. 933. 
 
 MOSES M. STRONG, in reply: 
 
 The judgment to which a writ of error will lie, must be a judg- 
 ment, that not only concludes the rights of the parties, but one 
 that is so perfect in itself that it can be carried into effect without 
 any further action of the court. The authorities that have been 
 read, go no farther than this. They relate principally to the ac- 
 tion of ejectment. Under our own statute in relation to that ac- 
 tion, the principle would apply. The judgment in rjectment 
 would be complete as to the recovery of the land; the damages 
 would have to be gained by a continuation of the proceedings and 
 filing a new declaration. 
 
 By an act of the Legislature passed at the last session, this 
 court is authorized in case of affirmance of judgment, to enter up 
 the proper judgment here and award execution. In this case, if 
 the judgment should be affirmed, there is nothing on which the 
 court could award execution, for the sum to be recovered is not 
 ascertained. 
 
 Judge MILLER delivered the opinion of the Courf, quashing the 
 writ : 
 
 In the District Court, David Hill was plaintiff and Edward
 
 REPORTS. 125 
 
 Bloomer defendant, in an action of replevin. On motion of the 
 defendant, the writ was quashed, and the court ordered, that the 
 plaintiff take nothing by his writ, and that the defendant recover 
 of the plaintiff his costs, and further, on motion of defendant, the 
 court awarded a writ of inquiry, to assess the value of the proper- 
 ty replevied and the damages for the detention thereof. A writ 
 of inquiry was issued but is not yet executed. To reverse these 
 orders of the District Court, a writ of error was sued out, which 
 the defendant has moved this court to quash, for the reason that 
 there is no final judgment or decision of the said District Court. 
 By the organic law of the Territory, writs of error, bills of ex- 
 ceptions, and appeals in chancery causes, shall be allowed in all 
 cases, from the final decisions of the District Courts to the Su- 
 preme Court, under such regulations as may be prescribed by law. 
 The only question to be determined is, whether there is a final 
 decision, or judgment in this cause in the District Court? By 
 section thirty oPtho act concerning replevin, pnge 275 of the stat- 
 utes, if the property specified in the writ has been delivered to 
 the plaintiff, and the defendant recover judgment by discontinu- 
 ance, or non-suit, such judgment shall be, that the defendant have 
 return of the goods and chattels replevied, unless he shall elect to 
 waive such return pursuant to any of the provisions contained in 
 said statute. Now, by considering the order quashing the writ, 
 equivalent to a judgment by discontinuance or non-suit, with a 
 judgment that the defendant have return of the goods and chattels 
 replevied, the cause would be finally decided between the parties 
 in the District Court; the rights of the parties would be conclud- 
 ed, and the plaintiff would be entitled to his writ of error. But 
 by the thirty-second section of the same act, the defendant, wheu- 
 ever he shall be entitled to a return of the property replevied, in- 
 stead of taking judgment for such return as above provided, may 
 take judgment for the value of the property replevied, in which 
 case, such value shall be ascertained by the jury on the trial, or 
 by a writ of inquiry, as the case may require. The defendant 
 elected to take judgment for the value of the property replevied, 
 and there not having been a jury empannellotl in the cause, a writ 
 of inquiry was awarded to assess the same. The plaintiff having 
 received the property into his possession from the sheriff on the 
 writ, the mere order of the coutt quashing the writ, or awarding 
 a writ of inquiry, does not disturb the possession, or subject the
 
 126 REPORTS. 
 
 plaintiff to the payment of damages and costs. The writ of in- 
 quiry must be executed and confirmed, and judgment entered on 
 the same for the amount found by the jury, before the plaintiffcan 
 be affected. This may ndver be done; and until it is done, the 
 plaintiff's possession of the property is as perfect as if the writ had 
 not been quashed. It is apparent, that this court cannot take cogn- 
 izance of cases, in judgment, or proceedings merely interlocuto- 
 ry; but the decision of the District Court must be final, and of 
 which a record can be made, and which shall decide the right of 
 property; Yates vs. The People, 6 John. Rep. 4Q1. The En- 
 glish practice referred to in the argument, is not applicable here. 
 There a man may have a writ of error before all parts of the cause 
 are decided, as on demurrer, or before a writ of inquiry of dama- 
 ges is executed; 1 Roll's Ab. 751. A writ of error will there lie 
 on a fine and recovery, though the word judgment, or any thing 
 in the form of the judgment, is not to be found in the proceedings; 
 1 Roll's Ab. 747. In New York, a writ of error will not lie until 
 a final determination of all the issues joined on the court below, 
 unless from the record it is apparent itself, that the judgment ren- 
 dered in the court below, disposes of the whole matter; Pete vs. 
 McCreiv,2l Wendell, G67. In Pennsylvania, a writ of error lies 
 in all cases, in which a court of record has given a final judgment; 
 Commonwealth vs. The Judges, 3 Binney, 273. Hence, a writ 
 of error does not lie upon an interlocutory judgment given for the 
 plaintiff upon a demurrer in an action sounding in damages; Lo- 
 gan vs. Jennings, 4 Watts, 355. Nor does it lie upon a judgment 
 quod compulel'm accountrender; Butlcrvs. Zeigler, 1 Penn. Rep, 
 135. In the case of The Life and Fire Insurance Company of 
 New York vs. Adams, 9 Peters, 602, Chief Justice Marshall re- 
 marks: "That the Supreme Court, in the exercise of its ordinary 
 appellate jurisdiction, can take cognizance of no case, until a final 
 judgment or decree shall have been made in the inferior court. 
 Though the merits of the case may have been substantially de- 
 cided, while any thing, though merely formal, remains to be done, 
 this court cannot pass upon the subject. If, from any intermedi- 
 ate stage in the proceedings, an appeal might be taken to the Su- 
 preme Court, the appeal might be repeated to the great oppression 
 of the parties.' 1 From the tenor of these decisions in the Supreme 
 Courts of the United States and in the states of New York and 
 Pennsylvania, we cannot consider the judgment entered by the
 
 REPORTS. 127 
 
 District Court of Dane county, a final judgment in the cause. 
 The value of the property is to be ascertained by a jury, which is 
 a matter of substance, and much more essential than mure matter 
 of form, as required by the Supreme Court of the United States. 
 And the execution of the writ of inquiry, is quite as essential to 
 the final disposition of the cause, as the report of auditors on the 
 judgment of quod computcl in Pennsylvania. If the District Court 
 has erred, or shall hereafter err in any of the subsequent proceed- 
 ings yet to be had in the cause, this court will correct the errors, 
 upon a writ of error sued out at the proper time. 
 
 This writ of error must be quashed. 
 
 ARNOLD and CATLIN, for pl'fFin error. 
 
 DUNN and MOSES M. STKONG, for deft in error. 
 
 CHARLES C. WELDEN & Bothers, pPtffs in error,) 
 
 vs. > Error to Iowa county, 
 
 THOMAS C. LEGATE, dcJH in error. } 
 
 A WRIT of error will not lie to reverse the decisions of the District Courts 
 in chancery causes; the only remedy for the party aggrieved, is by appeal. 
 
 A bill in chancery was filed by Legate against Walden and oth- 
 ers in the Iowa District Court. The' defendants were non-resi- 
 dents, and upon taking the ordinary rules, and publishing notice, 
 the bill was taken pro confcsso for want of an answer, and a final 
 decree rendered in favor of Legate. The defendants below sued 
 out a writ of error to reverse the decisions of the District Court j 
 and at this term the defendant in error, by his counsel, moved the 
 court to quash the writ, because no writ of error lies in chancery 
 proceedings. 
 
 DUNN, for deft in error, and in support of the motion: 
 Errors in chancery proceedings can only be corrected on ap- 
 peal. The organic law provides for writs of error to judgments at 
 law, and appeals in chancery causes. The statute of the Territo- 
 ry (see Stat. VVis. 275) allows an appeal, and regulates the man-
 
 128 REPORTS. 
 
 nerof taking it. Where the statute provides a particular remedy, 
 and points out the mode of pursuing it, by necessary implication 
 it prohibits any other, and where an appeal is provided for, the writ 
 of error is prohibited. 
 
 EASTMAN, contra: 
 
 Decrees in chancery, when the whole case is spread upon the 
 record, are as much the subject of a writ of error as a judgment at 
 law. The statute of the Territory is cumulative, and provides for 
 superseding the decree, but it does nol exclude the writ of error, 
 which is a common law remedy to correct the errors on the re- 
 cord. The object of the appeal is to remove the testimony in the 
 cause into the Supreme Court, in order that the merits of the case 
 may be reviewed, and if the court below erred, either upon the 
 facts or the law, that such error may be corrected. In some of 
 the States, under similar statutes, the practice is to review chan- 
 cery causes either on appeal or writ of error; 3 Binney, 27t>. At 
 common law a writ of error would not lie upon a subpena in chan- 
 cery, because the court of chancery is not a court of record; but 
 wherever the proceedings are of record, as in the petty bag office, 
 or in partition, error will lie; 9 Viner's Ab. 474; Harrison's Di- 
 gest, 1006. Our courts of chancery are courts of record, and 
 therefore a writ of error will lie to review their proceedings. 
 
 The acts of Congress allow of appeals in chancery causes, to 
 the Supreme Court of the United States, and yet we find that court 
 frequently reviewing cases brought up by writ of error. The 
 same practice prevails, under similar laws, in Kentucky and Ohio, 
 
 Thus it appears, that where the proceedings in chancery are 
 spread upon the record, as with us, writs of error and appeals are 
 concurrent remedies. 
 
 Du.\x, in reply: 
 
 In all the cases referred to, where chancery causes have been 
 brought up by writ of error, it has been by statutory authority. 
 The acts of Congress sanctioned the practice of the Supreme 
 Court, and the laws of Ohio and Kentucky authorize the concur- 
 rent remedies to be used. 
 
 It is a well settled principle, that wherever a statute gives the 
 right of appeal, a writ of error will not lie unless expressly au- 
 thorized by the statute. Jarris vs. Blanchard, 6 Mass. Rep. 4; 
 fiavage vs. Gulliver, 4 do. 174. 
 
 Judge IRVIN delivered the opinion of the Court, quashing the 
 writ:
 
 REPORTS. 129 
 
 This case came up on error to the District Court of Iowa coun- 
 ty, sitting as a court of chancery, and is here met by a motion on 
 the part of the defendant in error, " to quash the writ of error here- 
 in and dismiss the proceedings from this court for the following 
 reasons; 1. No writ of error lies in a chancery cause from the 
 District Courts to the Supreme Court of Wisconsin Territory, but 
 an appeal nlone lies." 
 
 In support and resistance of this motion, many authorities have 
 been referred to. Is it true, that a writ oferror does not lie from 
 this court to the District Courts in chancery causes? For, if that 
 be true in law, then the writ was improvidently awarded, and 
 would have to he quashed. 
 
 By the 9th sec. of the act establishing the Territorial govern- 
 ment of Wisconsin, the judicial power of the Territory is " vested 
 in a supreme court, district courts, probate courts, and injustices 
 of the peace." " And the said supreme and district courts, re- 
 spectively, shall possess chancery as well as common law jurisdic- 
 tion." "And writs of error, bills of exceptions, and appeals in 
 chancery causes, shall be allowed in all causes, from the final de- 
 cisions of the said district coiuts to the supreme court, under such 
 regulations as may be prescribed by law, but in no case removed 
 to the supreme court, shall a trial by jury be allowed in said court." 
 So far, therefore, as this act of Congress, commonly called the or- 
 ganic law (and which is to us as a constitution,) is concerned, it 
 is very plain, that the mode provided for taking cases in chancery 
 from the District Courts to the Supreme Court, is by appeal, and 
 in no other way. 
 
 The Legislature of the Territory, as will be seen on page 295 
 of the Statutes of Wisconsin, sec. 101, has prescribed the regula- 
 tions, as they were required by the organic law to do, in which it 
 is provided, that " when any person, being complainant or defen- 
 dant, shall think himself aggrieved by the decree or final order of 
 a district court sitting as a court of chancery, such person may en- 
 ter an appeal within thirty days to the supreme court, from such 
 decree or final order, on giving bond with good security, in such 
 sutr, as the judge of the district court shall order,conditioned to pay, 
 satisfy and p'erform the decree or final order of the supreme Court, 
 and all costs, in case the decree or final order of the district court 
 shall be affirmed, and if the decree or final order of the district 
 court shall be confirmed, the supreme court may award such dam- 
 
 17
 
 130 REPORTS. 
 
 ages against the appellant as they may think proper, not exceed- 
 ing twenty-five per cent, on the amount of the money, or other 
 subject matter of such decree." Thus it will be perceived, that 
 the legislature, in prescribing the regulations for an appeal, have 
 made thsm peculiar, differing altogether from the regulations pre- 
 scribed for taking up by writ of error, its appropriate and un- 
 disputed subjects. Parsons, C. J. in 4 Mass. Rep. page 178, in 
 disposing of a similar question, says, in speaking of an appeal, " it 
 is less expensive and more convenient than a writ of error, and 
 further relief may be granted on an appeal than can be on a writ 
 of error. On an appeal, the cause of error maybe removed by 
 amendment; mistakes in fact on the merits, may be corrected; 
 neither of which can be done on error; and at the same time, an 
 erroneous judgment below may be amended by the court having 
 appellate jurisdiction. The statute in giving an appeal, has, in our 
 opinion, taken away, by reasonable implication, the remedy by er- 
 ror, unless in cases where the aggrieved party, without any laches 
 on his part could not avail himself of an appeal. But if it appears 
 on the record that the plaintiff in error might have appealed, the 
 court will, ex officio, quash the writ; or the court will quash it on 
 a plea of abatement, disclosing the plaintiff's remedy by appeal. 
 In this case, it appears on the record, that the plaintiff in error 
 might have sought his remedy by an appeal to the common pleas. 
 He cannot come to this court per saltum, but he ought to have ap- 
 pealed, and if dissatisfied with the judgment of the common pleas, 
 he might then have sued out his writ of error." 
 
 In the examination of the case at bar, it not only appears that 
 the plaintiffs in error might have appealed by the provisions of the 
 statute, but that they did pray an appeal from the District Court, 
 which was granted to them, and why they abandoned that clear 
 and undisputed remedy, for one so questionable, this court cannot 
 even conjecture. 
 
 Parsons, C. J. in G Mass. Rep. page 5, reiterates the same opin- 
 ion. Sec also, 2 Wheat. Rep. 132. 
 
 It would be difficult to conceive upon \vhatground, under the 
 peculiar statutory provisions as contained in the organic law and 
 the act of the legislature of the Territory, the idea of bringing the 
 cause here on writ of error rested, unless it was supposed, that 
 there was something in the very nature of a writ of error which 
 bid defiance to, and rode down all legislative provisions; but in-
 
 REPORTS. 131 
 
 asmuch as we cannot recognize in it any such quality, but on the 
 contrary, declare it as fully a subject of legislation as appeal is, 
 we must hold it equally liable to legislation. The statutes, as we 
 have already seen, provide an appeal, and an appeal only, as 
 the proper remedy for the party aggrieved, and to which we must 
 hold the plaintiffs in error as the only proper remedy. It is there- 
 fore considered, that the writ of error was improvidently sued out, 
 and that the same be quashed. 
 
 EASTMAN, for plaintiffs in error. 
 
 DUNN, for defendant in error. 
 
 AUGUSTUS A. BIRD, pFjf in error, \ 
 
 HENRY FAKE and ( Error io Milwaukee county. 
 
 LESTER H. COTTON, <fr/>fcm error,) 
 
 THE sixth and seventh sections of the statute of Michigan to regulate ta- 
 verns, approved 23d April, 1833, which prohibited the trusting of any per- 
 son except travellers or ledgers, for drink or other tavern expenses over 
 $1 25, and niado void any note or other security for the same, affected the 
 remedy only, and being repealed, such prohibited charges made while it 
 was in force, may now be sued for and recovered. 
 
 The prohibitions of that act did not vest any right in the party trusted, 
 within the saving clause of the repealing statute. 
 
 A dormant partner need not be joined with his co-partners in an action 
 to recover the partnership demands; and the fact that the defendant knew 
 him to be a partner does not alter the case; to make it necessary that he 
 should be joined, the defendant must have known the dormant partner as 
 such in the transaction which is the subject matter of the suit. 
 
 One parrner cannot bind another in the transfer of accounts, and the set- 
 tlement of the business of the firm, as between the partners, without his con- 
 sent ; to make such transfer or settlement binding as between the partners, 
 they must all consent to it. 
 
 A writ of attachment was sued out in the Milwaukee District 
 Court, in the name of Henry Fake, against Bird, in December, 
 1810. There appear to have been no steps taken in this pro- 
 ceeding, as between the original parties, after the levy and return 
 of the writ. 
 
 In October, 1841, Fake & Cotton filed their declaration in 
 assumpsit against Bird, under Fake's attachment. Accompany-
 
 132 REPORTS. 
 
 ing the declaration was a hill of particulars of charges by the plain/? 
 tiffs as keepers of the American Hotel at Madison, against the de-- 
 fendant, a large portion of which was for liquors and tavern ex- 
 penses, the last item of which account was dated 30th August, 
 1839. Bird pleaded the general issue to this declaration, and 
 gave notice of set-off, and that the amount of the plaintiffs' de- 
 mand had been paid and applied by the defendant) at their re- 
 quest, upon the discharge of a debt owing by the plaintiffs for rent 
 of the American Hotel. An objection was raised on the trial to 
 the non-joinder of James Morrison as a co-plaintiff. 
 
 The deposition of Morrison had been taken in the cause, and 
 was read upon the trial in the court below; which, after proving a 
 written agreement between him, as the owner of the American 
 Hotel, and Fake &. Cotton, which is embodied in the opinion of 
 the court, proved further: that Fake presented to him an account 
 due from Bird to the American Hotel while it was kept by Fake 
 &, Cotton, under said agreement, amounting to $255 15, being 
 the balance due from Bird as stated by Fake, which amount depo- 
 nent assumed as part payment of his share of the profits of the 
 house, and credited Fake &. Cotton with their proportion of said 
 account at their request, and charged the same to Bird. It was 
 the understanding that by tin's arrangement Bird was released from 
 all claims of Fake & Cotton. This arrangement was made on 
 30th or 31st August, 1839. Bird's account was charged in depo- 
 nent's book and posted in his ledger. Fake &- Cotton were in 
 no other business than keeping the hotel, while the account ac- 
 crued, to his knowledge. At the time of the arrangement, depo- 
 nent told Fake that if Bird acknowledged the account to be cor- 
 rect, he would receive it in payment of his proportion in part of 
 the profits of said house. He afterwards saw Bird, who said it 
 was correct, and deponent agreed to receive it as payment from 
 Fake, as above stated. The account is charged against him in 
 Fake &, Cotton's books. Bird and deponent have an unsettled 
 account, and Bird has put property in his hands to secure that and 
 all other debts. The above transfer was agreed upon between. 
 Fake and deponent, but they did not effect a full settlement of 
 other matters in relation to the American Hotel. There has never 
 been any difficulty between deponent and Fake & Cotton in re- 
 lation to the transfer of Bird's account. 
 
 It was also proven on the trial, that the plaintiffs below kept
 
 REPORTS. 133 
 
 the American Hotel under the name and firm of Fake &. Cotton; 
 that they so advertised, made and paid their bills. &c. That Mor- 
 rison lived thirty miles from Madison, and did not take any active 
 part in the business of the hotel; and that the account against 
 Bird was correct for the balance of $255 15. 
 
 After the evidence was closed, the court charged the jury: 
 
 "The objection to the writ in this case cacnot defeat the action 
 at this stage. The declaration was filed by both plaintiffs confor- 
 mably to the affidavit for tire writ, to which the defendant pleaded 
 the general issue. The cause is regularly at issue between the 
 plaintiffs, Fake &. Cotton, and the defendant." 
 
 "The statute of Michigan, forbidding the collection of tavern 
 bills, is a statute affecting the remedy, and being repealed, does 
 not now operate against the plaintiff's recovery." 
 
 " It probably would not have been improper to include the name 
 of James Morrison, but it was not necessary, and the action is 
 well brought without it. A defendant is not obliged to plead in 
 abatement the non-joinder of a partner who ought to have been 
 made a co-plaintiff, but may take advantage of it on the plea of 
 general issue. But it must appear affirmatively that such partner 
 was an acting partner, for if he was merely a dormant partner, he 
 need not be joined. An actual, without an apparent interest in 
 the profits of a concern, constitutes a dormant partner." 
 
 "The several members of a firm cannot transfer to one of them 
 Iheir apparent interest in a joint debt-so as to enable him to sue 
 and recover it in his own name. The original relation of debtor 
 and creditor cannot be changed without the consent of the debtor. 
 If this were a transfer of this account by the plaintiffs to Morri- 
 son, without the consent of the defendant, Morrison would have 
 to sue in the name of the partners, which a judgment in this case 
 in favor of Bird would defeat. It might be competent for Morri- 
 son to collect and receive this debt, but it does not appear that it 
 has been actually paid by Bird. Then, as it has not been paid by 
 Bird, and there is no allegation that Lester H. Cotton, one of the 
 plaintiffs, ever consented to, or engaged in the alledged arrange- 
 ment between Fake and Morrison, the plaintiffs' recovery in this 
 action, cannot thereby be defeated." 
 
 The defendant asked the court to instruct the jury: " That Les- 
 ter H. Cotton is bound in this matter by the act of Fake, they be- 
 ing co-partners." To which the Judge replied, and charged the
 
 134 REPORTS, 
 
 jury: " Cotton in this matter, is not bound by the act of Fake, 
 without his consent." 
 
 The defendant also asked the court to instruct the jury: " That 
 if the debt to Fake & Cotton has been paid at their request, and 
 has been credited by Morrison to them, then the plaintiffs cannot 
 recover." To which the Judge replied, and charged thajury: 
 " This is a debt to the whole firm, and if paid in any way by de- 
 fendant, the plaintiffs cannot recover." 
 
 The jury returned a verdict in favor of the plaintiffs, upon which 
 the court rendered judgment. 
 
 Exceptions were taken to the various decisions of the court in 
 the progress of the trial, and Bird has prosecuted this writ of error 
 to reverse the judgment of the court below. 
 
 ARNOLD, for plaintiff in error: 
 
 The charge of the Judge to the jury, in relation to the tavern 
 expenses charged in the plaintiffs' bill of particulars, is not con^ 
 sistent with sound principles of law. The fair construction of 
 the statute of Michigan, in force at the time, will make such sales 
 and charges void, ab initio. The sixth section of the act, (Laws 
 of Michigan 120.) prohibits the trusting for such charges, and de> 
 clares that the tavern keeper shall lose the debt, and be incapable 
 of suing for if. The seventh section makes void any note or 
 other security taken for such charges, and affixes a penalt;' for 
 taking it. The policy of the law, and the manner in which it is 
 framed, show that it was the intention of the legislature to malie 
 all such contracts absolutely void; and a contract that is void at 
 the time, under a prohibitory penal statute, cannot be made valid 
 by a subsequent repeal of the statute, and no promise afterwards 
 made to pay it is binding. 
 
 The court erred in instructing the jury that the action was well 
 brought without joining Morrison as a co-plaintiff. We admit, 
 that a dormant partner, not known at the time or dealt with as such, 
 need not be joined. 3 Co wen 84. 4 Cowen, 717. But if the 
 dealing was with a dormant partner, known to be one of the firm, 
 he should be joined;" 2 Whart. Dig. 320. This account was due 
 to the American Hotel company which was composed of Morrison, 
 Cotton and Fake. Bird knew them to be partners, for he signed 
 the agreement, and he dealt with them as such. From his know- 
 ledge, and dealings, Morrison was not, as to him, a dormant part- 
 ner. See 4 Watts. 4y5, 45G. Whether Morrison was an active
 
 REPORTS. 135 
 
 or a dormant partner, was a question of fact for the jury alone to 
 decide. The court below decided the fact, and took the question 
 from the jury by the instructions given. 
 
 Again, the court assumed a matter of fact, in charging the jury 
 (hat it did not appear that the debt had been paid by Bird. It is 
 error, for the court to assume a matter of fact to be true, that can 
 only be ascertained by the verdict of a jury. 
 
 The instructions of the court that Cotton should have consent- 
 ed to any arrangement to settle the account in order to bind him, 
 and that he was not bound by the act of Fake, were not according 
 to the principles of law. One partner has power to bind the firm 
 in matters relating to the partnership property and the settlement 
 of partnership debts. 3 Kent's Com, 20, 21, 22, 24, 25. 4 Bin- 
 ney, 375. And a release from one partner of a debt due the 
 firm will bind all the co-partners. 3 Kent, 24. 14 John. Rep. 
 387. 3 John. Rep. 68. 17 John. Rep. 58. In this case, Cot- 
 ton & Fake, as one party, contracted with Morrison, and were 
 jointly bound to him. They were, themselves, co-partners, as to 
 Morrison, and Fake was acting for himself and Cotton in settling 
 the business with Morrison. The arrangement was for Cotton's 
 benefit, and independently of the power to bind him, his consent 
 ought to have been presumed; at least the question ought to have 
 been left to the jury for them to decide. 
 
 TWEEDY, for defendant in error: 
 
 This cause is more deceptive in understanding the facts, than 
 in their application. The business was done in the name of Fake 
 &, Cotton; the account was made out in their names, and the ba- 
 lance was admitted by the defendant to be due. The account 
 was duly proven on the trial, and the first ground of defence ta- 
 ken is, that a large part of the account is for liquors and tavern ex- 
 penses, prohibited by law when the charges were made; This 
 law does not say that the tavern keeper shall not sell, but that if 
 he does sell on credit, he shall not recover. The statute simply 
 withholds the remedy in such case, and now that it is repealed, 
 the remedy is restored. The articles furnished were sufficient to 
 impose a moral obligation to pay for them, and this is a good con- 
 sideration for a promise; and Bird has acknowledged the balance 
 of the account sued for to be jusf, long since the repeal. 
 
 The principal question to be determined is, whether the suit is 
 properly brought without joining Morrison as a co-plaintiff. We
 
 136 REPORTS. 
 
 consider the law to be settled, that in case of a dormant partner^ 
 the active partners may or may not join him, at their own option. 
 Coliyer on Part. 394. The law is thus laid down, that if the dor- 
 mant partner is a party to the particular contract, then he must be 
 joined, because in such case he is an actual party, as well as a 
 party in interest. It is admitted lhat Bird knew Morrison to be a 
 partner, but that does not alter the case, fur the contract was not 
 made with him, but with the active partners, and Morrison being 
 dormant, it was not necessary to join him. 2 Whart. Dig. 323. 
 4 Watts, 305. 4 Cowen,717. 3Cowen,84. 4 Wendell, 408. 
 1 Chilly's Plead. 13. 2 Vermont Rep. G5. 3 Greenleaf, 394. 
 3 Law Library, 39. 
 
 The plaintiffs having proven their demand, it became incum- 
 bent on the defendant to prove that it was paid. No arrange- 
 ment between Morrison and Fake in relation to the debt would 
 amount to payment; nothing but actual payment would extinguish 
 the demand. If Bird and Cotton had been both present, and as- 
 sented to the transfer, and Bird had have made a new promise, it 
 might have been sufficient. But such an arrangement as was 
 made could not extinguish the debt. Cotton was no party to it, 
 and although one partner can collect a debt due the firm, yet he 
 cannot release or remit it, especially if he be a dormant partner. 
 It is said that one partner can bind another. This is true as a ge- 
 neral principle, but it does not apply to the arrangement of the bu- 
 siness of the firm between the partners. In this case, the arrange- 
 ment was made by Fake in Cotton's absence, and Cotton cannot 
 be bound by it; 9 Cowen,690. The partners were settling busi- 
 ness between themselves, and not doing business with the world. 
 The arrangement itself did not amount to payment, and the charge 
 of the court was right according to the law. 
 
 WELLS in reply: 
 
 The portion of the account that is for tavern expenses, was void, 
 and not merely voidable, by the law when it was created. If void, 
 the bare repeal of the law since cannot make it valid. It was not 
 intended tint the repealing act should have any such eflfect in this 
 or any other case, for it saves the rights of all persons as they ex- 
 isted under the laws repealed. Slat. Wis. 470. 
 
 It is said that Morrison was a dormant partner, and that he need 
 not to have bet-n joined in the action. They were all known to 
 Bird as partners, and he dealt with them as such throughout the
 
 REPORTS, 137 
 
 partnership. But whether he was a dormant partner or not, and 
 if so, whether the facts in the transaction were such as to make it 
 necessary to join him in the action, and whether Bird had paid 
 the debt, were all questions of fact for the jury to ascertain. But 
 the court, in its charges, decided these facts for the jury, and left 
 them nothing to do but return a verdict for the plaintiffs in obedi- 
 ence to the instructions. 
 
 Judge IRVIN delivered the opinion of the Court: 
 
 This cause which was. tried and decided in the District Court 
 of Milwaukee, came up on error, as set forth and complained of, 
 in exceptions taken to the several decisions and directions of the 
 court to the jury, both in its general charge and special instructions 
 asked for. When instructions to the jury are asked for upon a 
 particular point of law, as connected with the case generally, or 
 upon the law, connected with a particular point in vhe evidence, 
 and exceptions to the instructions given are taken, the inquiry of 
 the appellate or court of error, is generally confined to the partic- 
 ular and more circumscribed matter thus presented; but when the 
 exception \s taken to matter of the general charge of the court to 
 the jury, as well as particular instructions asked for, the inquiry 
 in the appellate court necessarily becomes more extended, and 
 sometimes apparently diffuse, as the general charge rests upon the 
 views taken of the whole case, as presented. 
 
 The first exception taken in the court below, is in this court 
 abandoned, so far as the writ is concerned, and will not, therefore, 
 be considered in that particular. 
 
 By a provision of the statute of the Territory, when a creditor 
 sues out a process of attachment against his debtor, any other cre- 
 ditor of said defendant may, at or before the second term of the 
 court after the return of said process served, file his declaration, 
 and proceed therein to judgment as in other cases. This appears 
 to be a case of that kind* and in which the defendants in error 
 seek to recover of the plaintiff in error the amount of a bill of 
 particulars through the medium of a declaration in assumpsit, to 
 which the defendant pleaded the general issue. 
 
 In the progress of the trial, it appears that Fake &. Cotton were 
 the keepers of a hotel at iMadison, called the American Hotel, 
 and as such keepers sold and furnished to Augustus A. Bird, the 
 items mentioned in said bill of particulars, among which were 
 charges for spirituous liquors, which account of items commenced 
 
 18
 
 138 REPORTS. 
 
 on the 30th of November, 1838, and terminated on the 30th of 
 August, 1839. Up to the 4th of July, 1839, the laws of Michi- 
 gan were in force in this Territory, when they ceased by repeal. 
 In this case , Bird, the plaintiff in error, relied for a part of his de- 
 fence on the sixth and seventh sections of " an act to regulate ta- 
 verns." See Laws of Michigan, page 126, revision of 1838. As 
 further defence in the court below, Bird, the plaintiff in error, in- 
 troduced an agreement purporting to be made and entered into by 
 James Morrison, of the first part, and L. H. Cotton and Henry 
 Fake, of the second part, which was signed and sealed by L. H. 
 Cotton and Henry Fake, and James Morrison by A. A. Bird, by 
 which the American Hotel was leased to Cotton and Fake, and 
 which regulated and disposed of the profits arising from said ho- 
 tel, between the said Morrison, the lessor, and the said Cotton 
 &. Fake, the lessees. This was introduced for the purpose, 1st, 
 of showing that Morrison was a partner in the keeping of said ho- 
 tel, and should have been joined in the action; and 2d, that his 
 acts as such partner, bound the firm keeping the American Hotel. 
 
 The sixth section of the law of Michigan above referred to, is 
 as follows: "If any tavern keeper shall trust any person other 
 than travellers, above the sum of one dollar and twenty-five cents, 
 for any sort of strong or spirituous liquors, or tavern expenses, he 
 shall lose every such debt, and be incapable of suing for the same, 
 or any part thereof, and if any such tavern keeper shall sue therefor, 
 the person may plead this act in bar, or give it in evidence under 
 the general issue, and if the plaintiff shall become non-suited, or 
 a judgment shall be given for the defendant, every such plaintiff 
 shall pay double costs." 
 
 The seventh section makes void all securities taken upon such 
 trusting, and among other things makes an exception in favor of 
 the tavern keeper in the case of lodgers and travellers. 
 
 The agreement referred to is as follows: "An agreement made 
 and entered into at Madison, this 21st day of November, A. D. 
 1838, between James Morrison of the county of Iowa and Terri- 
 tory of Wisconsin, party of the first part, and L. II. Cotton and 
 Henry Fake, of the town of Madison, county of Dane, and Terri- 
 tory aforesaid, party of the second part, witncsscth: That the 
 said Morrison, party of the first part, for himself, his heirs 
 and assigns, doth hereby agree to furnish the house now 
 known as the American Hotel, in Madison, in a suitable manner
 
 REPORTS; 
 
 for the accommodation of guests, and will also furnish one labor- 
 ing man to cut firewood for said house, and doth hereby lease the 
 same to the above named party of the second part, they comply- 
 ing with the following conditions, to wit: the said party of the 
 second part, for themselves, their heirs and assigns, agree to take 
 the above mentioned house on a lease of one year from the date 
 of this article, nfter having been furnished as above described, and 
 willfurnishallnecessaryhelp and keep the same in as good a 
 manner as possible, and at the expiration of each three months 
 during the term of said lease, will divide the nett profits that may 
 accrue equally with the said party of the first part, and return the 
 furniture in as good order as when taken, excepting the natural 
 wear and tear theVeof ; and the said party of the second part fur- 
 thermore agrees to pay one-half of whatever the cost may be of 
 insuring the furniture against loss and damage by fire, the same 
 to be insured as soon as possible. And it is further understood, 
 that each party is to be at half the expense of furnishing provi- 
 sions, liquors, and all necessary eatables for said house." And 
 which is signed and sealed, as before noticed, and witnessed by 
 two witnesses. 
 
 It further appears from the testimony returned with the excep- 
 tions taken in the cause, that some time in the summer of 1839, 
 Fake and Morrison attempted a settlement of the matters arising 
 out of the keeping of the said hotel, when Fake proposed that Mor- 
 rison should take the account charged against Bird, which was 
 then declined; nor does it appear that the parties, Fake and Mor- 
 rison, ever had another interview about it. Morrison, in his de- 
 position herein taken, says: "I afterwards saw Mr. Bird, who 
 said, (in allusion to the account against him,) it was correct, and 
 I agreed to receive it as a payment from Mr. Fake, as above 
 stated;" but with whom he agreed does not appear. Thus stand 
 the prominent matters in this case, to the understanding of which 
 a statement is made necessary from the dusultory and unsatisfac- 
 tory manner in which the exceptions were taken below, excep- 
 tions in most part taken to the general charge of the court to the 
 jury, which we are bound to presume was given from a full view 
 of the whole case. 
 
 The errors are assigned merely by reference to the exceptions 
 in their numerical order. 
 
 The second exception is to this charge of the court: "The
 
 140 REPORTS. 
 
 statute of Michigan forbidding the collection of tavern bills, is a 
 statute affecting the remedy, and being repealed, does not operate 
 against the plaintiff's recovery." In the examination of that stat- 
 ute, which has already been recited, the prohibitions therein con- 
 tained are not directed against the actof selling, butof collecting. 
 The right to sell, to any extent, the articles therein mentioned, 
 cannot be questioned, so that it be done for cash, and not trusted, 
 for it says, " if any tavern keeper shall trust any person," &c. The 
 right 10 sell, therefore, cannot be doubted, and the only prohibi- 
 tion being upon the collection, it becomes clearly a matter that 
 relates to the remedy, and the statute being since repealed, and 
 before the commencement of this suit, the inhibition upon the 
 remedy was removed with the repeal. At the time of the repeal 
 spoken of, it was done under a regular revision of the laws, and 
 \vasaccompanied by this general provision which is found in the 
 fourth section of the act, page 407 of the Statutes of Wisconsin, 
 and is in these words: "The repeal of any statutory provision by 
 this act. shall not affect any act done or right accrued or establish- 
 ed, orany proceeding, suit, orprosecution had or commenced previ- 
 ous to the time when such repeal shall take effect," &c. The 
 prohibition upon the remedy was not such a right accrued or es- 
 tablished as was contemplated by the act, nor was it a vested right. 
 The court did not, therefore, err in the instruction given. 
 
 The third instruction excepted to, is this: "It probably would 
 not have beer, improper to include the name of James Morrison, 
 but it was not necessary, and the action was well brought without 
 it. A defendant is not obliged to plead in abatement the non- 
 joinder of a partner who ought to have been a co-plaintiff, but 
 may take advantage of it on the general issue; but it must ap- 
 pear affirmatively that such partner was an acting partner, for if he 
 was merely a dormant partner, he need not be joined. An actual, 
 without an apparent, interest in, the profits of a concern, consti- 
 tutes a dormant partnership." 
 
 It is a principle of law well settled, that a dormant partner, (and 
 the court are satisfied from the evidence that Morrison is nothing 
 more.) need not be joined with the active partners in a suit. 8 
 S. &, II. 55; Morse rs. Chase, 4 Watts, 450. And the fact, that 
 Bird personally knew Morrison to be a partner (the fact of part- 
 nership being conceded) nothing militates against the principle 
 that a dormant partner need not be joined; for the true distinction
 
 REPORTS. 141 
 
 we take to be this: that the defendant must know the dormant 
 partner in the transaction which is matter of litigation; that is 
 the knowledge which the law requires in order to make an excep- 
 tion to ihe general rule; 3 Cowan's Rep.. 34. 1 ChittjTs Plead. 
 7,8. 2 Esp. Rep. 468; and 2 Taunt. 324, 320. In this the 
 court did not err. 
 
 The fourth exceplioh is to this charge of the court: "The se- 
 veral members of a firm cannot transfer to one of them their se- 
 parate interests in a joint debt, so as to enable him to sue and re- 
 cover it in his own name. The original relation of debtor and 
 creditor cannot be changed without the consent of the debtor. If 
 this were a transfer of this account by the plaintiff to Morrison, 
 without the consent of the defendant, Morrison would have to sue 
 in the name of the partners, which a judgment in this case in fa- 
 vor of Bird would defeat. It might be competent for Morrison to 
 collect and receive this debt, but it does not appear that it has 
 been actually paid by Bird. Then,as it has not been paid by Bird, 
 and as there is no allegation that Lester H. Cotton, one of the 
 plaintiffsj ever consented to, or engaged in the alledged arrange- 
 ment between Fake and Morrison, the plaintiff's recovery in this 
 action cannot thereby be defeated." 
 
 The correctness of the instruction here given, is recognized in 
 the case of Horback vs. Huey, 4 Watts 1 Rep. 455; in Bun vs. 
 Morris, 1 Caine's Rep. 54; and indeed it is so clearly recognized 
 in all the authorities, that we do not think it admits of a doubt. 
 In the instruction there is no error. 
 
 Thus far, the exceptions were taken to the general charge of 
 the court to the jury. The fifth chaige excepted to was upon in- 
 structions asked for by the defendant in these words: " That 
 Lester II. Cotton is bound in this matter by the act of Fake, 
 being co-partners;" to which the court replied and charged the 
 jury: "Cotton, ia this matter, is not bound by the act of Fake, 
 without his consent." That one partner may bind his co-partner 
 in transactions relating to the business of co-partnership, with 
 third persons, is a principle coeval will) partnership itself ; and it 
 is equally clear that no arrangement about the partnership business 
 as between themselves, by some of the members of a firm, can 
 bind those who do not concur therein. Were it otherwise, it 
 would, at any time, be in the power of one partner of a firm to 
 ruin the balance.
 
 142 REPORTS. 
 
 The suth, and remaining instruction asked for by the defendant, 
 and excepted to as given, is this: "That if the debt to Fake & 
 Cotton lias been paid at their request,' and has been credited by 
 Morrison to them, then the plaintiff cannot recover." To which 
 the Judge- replied: "This is a debt to the whole firm, and if paid 
 in any way by defendant, the plaintiffs cannot recover." 
 
 This we consider a self-evident proposition, and no error. 
 
 We cannot see, under a careful examination of the whole case, 
 that the District Court committed any error in any of the charges 
 or instructions or opinions given. The judgment of the District 
 Court is therefore affirmed with costs. 
 
 ARNOLD and WELLS, for plaintiff in error. 
 
 TWEEDY, for defendants in error. 
 
 BERRY HANEY, ptomfrj in error, 
 
 vs. 
 
 SATTERLEE CLARK and 
 HENRY JONES, defendants in error, 
 
 Error to Dane county. 
 
 Tin: Supreme Court will not notice any errors in the proceedings of the 
 court below, unless they arc properly presented in the record of the case. 
 
 The court will not consider any paper as a part of the record which is- 
 not made so by the pleadings, or some opinion of the court referring to it, 
 or by a bill of exceptions taken in the cause; and it makes no difference 
 that the paper is certified up by the clerk. 
 
 A motion made in the progress of a cause in the court below, and the 
 reasons and affidavits upon which it is founded, are no part of the record, 
 unless made so by ;> bill of exceptions. 
 
 Clark and Jones brought suit against Henry before a justice of 
 the peace of Dane county. Haney failed to appear and was de- 
 faulted, aud the justice, upon proofs, rendered a judgment in fa- 
 vor of the plaintiffs. Haney, within six days after, appealed to the 
 D;ine District Court, and there moved the court for leave to file 
 his set-off against the plaintiff's demand, which was refused by the 
 court; and upon the trial judgment was rendered in favor of the 
 plaintiffs.
 
 REPORTS. 143 
 
 Haney sued out a writ of error to reverse the judgment of the 
 District Court, and has assigned for error, the refusal of the court 
 to allow him to file his set-offon the motion made for that purpose. 
 
 CLARK, for plaintiff in error: 
 
 The District Court ought to have allowed the defence to be 
 made under the circumstances of the case. The statute on the 
 subject of appeals from justices of the peace, directs that the issue 
 in the District Court shall be the same as before the justice, un- 
 less the court shall otherwise direct. It is in the discretion of the 
 court to allow a different issue, but this is a sound legal discretion 
 to be properly exercised. The same statute gives a defendant 
 who is defaulted before a justice the right of appeal. The whole 
 spirit of the law, contemplates a trial on the merits; but if the par- 
 ty defaulted, cannot make an issue in the District Court, the right 
 of appeal is a naked right without any possible benefit, and the 
 provisions of the law are wholly illusory. 
 
 We contend that the court was bound to allow the amendment 
 to be made. The principle was so decided in Illinois under a 
 similar statute; 1 Scammon, 137; and so also in Pennsylvania, 1 
 Rawle,370. 
 
 FIELD, for defendants in error: 
 
 There is no error in the record of this case. The motion and 
 affidavit in support of it, are no part of the record, unless made so 
 "by a bill of exceptions, and this Court cannot notice them in any 
 way. This is the established doctrine and practice of the courts. 
 Vanlandingham vs. Fellows and others, 1 Scammon, 333; Hin- 
 ton vs. Brown, 1 Blackford, 429; Henderson vs. Reed, id* 347; 
 Cole vs. Driskell,id. 10; Goldsborough vs. May, 1 Littell, 254; 4 
 Randolph, 189. In this case there was no bill of exceptions ta- 
 ken, and the court cannot pass upon the matters assigned as error. 
 The sending up or certifying of papers by the clerk, or incorpora- 
 ting them in the transcript, can make no difference, for the clerk 
 has no power to make records for the court. 
 
 Opinion of the Court, by Judge MILLER: 
 
 This suit was commenced by Satterlee Clark and Henry Jones 
 against Berry Haney, before a justice of the peace, where, in the 
 absence of the defendant, on the return day of the writ, judgment 
 Was rendered for the plaintiffs; from which the defendant appeal- 
 ed to the District Court of Dane county; where he moved the 
 court for leave to file his set-off to the plaintiff's demand, which 
 was overruled by the court, and this is the error assigned.
 
 144 REPORTS. 
 
 The counsel for the defendant below, and plaintiffin error, ne* 
 glected to have his motion with his proposed set-offernbodiedin a 
 bill of exceptions; and contented himself with coming here with 
 a mere certified transcript of the records of the District Court. 
 The counsel of the defendants in error refused to argue or consi- 
 der ihe error assigned, for the reason that the cause is not properly 
 in this court, as the motion of the party is not a part of the record, 
 but can only be made so by a bill of exceptions, stating the mo- 
 tion, and the nature of the off-set proposed. 
 
 The question is thus presented: is this motion a part of the 
 record which this court will examine as such? In cases at com- 
 mon law, the course of the Supreme Court of the United States 
 is not to consider any paper part of the record which is not made 
 so by the pleadings, or by some opinion of the court referring to 
 it. This rule is common to all the courts exercising appellate ju- 
 risdictioji according to the course of the common law. The pre- 
 liminary question is, whether the matter exists on the record? 
 Lessee of Fisher vs. Cock will, 5 Peters, 248. The appellate 
 court cannot know what evidence was given to the jury, unless it 
 is spread on the record in proper legal manner; Gratz vs. Grate, 
 4 Rawle, 411. The unauthorized certificate of the clerk, that 
 any document was read, or any evidence given to the jury, cannot 
 make that document, or that evidence, a part of the record, so as 
 to bring it to the cognizance of the appellate court. Upon the 
 same principle, the court of appeals of Kentucky decided, in the 
 case of Ashley vs. Sharp, 1 Littel), 1GG, that where the grounds 
 assigned in the record, are the exclusion of evidence, or of 
 title, papers on (lie former trial, the bill of exceptions ought to ex- 
 hibit the evidence or title papers excluded. Upon the same 
 principle, it was decided by the Supreme Court of Illinois, Van- 
 landingham vs. Fellows, 1 Scam. 233, that the rea'sons filed by a 
 party as the foundation for a motion in the Circuit Court, do not 
 thereby become a part of the record. To make them a part of 
 the record, they must be embodied in a bill of exceptions. And 
 because they were not so made a part of the record, the court re- 
 fused to take any notice of them. In Indiana, evidence, wheth- 
 er written or parol, can only be made part of record, by oyer, bill 
 of exceptions, demurrer to evidence, especial verdict, or consent 
 of parties; Cole vs. Driskcll, 1 Black, 10. The same court de- 
 cided in the case of Shields and Wife vs, Cunningham, 1 Black,
 
 REPORTS. 145 
 
 36, that a capias ad respondendum is not part of the record, un- 
 less made in some legitimate method; and the circumstance of 
 its being certified up by the clerk, can add nothing to its validity. 
 In the case under consideration, a copy of the off-set offered to be 
 filed in the District Court, is not even certified up by the clerk. 
 There is no error apparent on the record, and the judgment of 
 the District Court must therefore be affirmed. The error com- 
 plained of is not properly presented, and for this reason the court 
 will not notice it. The People vs. Dalton, 15 Wendell, 581. 
 
 CLARK, for pl'iff in error. 
 
 FIELD, fordef 'is in error. 
 
 ROBERT BRY ANT, pf/in error, i 
 
 vs. > Error io Milwaukee county. 
 
 GEORGE BARBER, deft in error,} 
 
 WHEN a party appeals from the judgment of a. justice of the peace, 
 he must have an entry of his appeal made in the District Court on or 
 before the second day of the next term after the appeal is taken; and if 
 the justice fails to send up the papers as required by law, he must with- 
 in that time take a rule against him to make return: If the appellant neg- 
 lects to take the necessary steps to get his appeal before the court until af- 
 ter the becond day of the term, he cannot have it entered on a subsequent 
 day, and the right accrues to the appellee to have the cause entered and 
 judgment rendered in his favor upon the judgment of the justice. 
 
 Barber obtained a judgment against Bryant before a justice of 
 the peace of Milwaukee county, from which Bryant appealed on 
 the 12th February, 1842. The next term of the District Court 
 commenced on the 13th of June, 1842, and on the 18th June, 
 before the time of trying appeals, according to the arrangement of 
 business in court, the justice who tried the case, handed the pa- 
 pers to the clerk, when the appellant's counsel requested the 
 clerk to enter the cause on the docket. The clerk declined mak- 
 ing the entry, and upon referring the matter to the Court, the 
 Judge directed him to file the papers but not to enter the cause. 
 On the 1st July, on motion of the appellee, the cause was entered 
 and judgment rendered in his favor for the amount recovered be- 
 
 19
 
 146 REPORTSi 
 
 fore the justice, with interest, damages and costs, according to 
 the statute, the appellant, by his counsel, being in court at the 
 time and objecting thereto and offering to go to trial. 
 
 To reverse this judgment, Bryant sued out a writ of error and 
 has brought the cause into this court. 
 LYNDE, for pl'tff in error: 
 
 The sixth and. eighth sections of the act, upon the subject of 
 appeals, Stal. Wis. 333, are directory and not imperative. It is 
 made the duty of the justfce to file the papers on or before the 
 first day of the term, and until he does so; the appellant cannot 
 have the cause entered, for there is nothing before the court to 
 be entered. If the justice neglects his duty and delays the mat- 
 ter, the appellant ought not to suffer for it. The statute gives 
 the court the power to order appeals to be entered otherwise than 
 is therein directed. This was intended to embrace cases like the 
 present, where the justice brings in the papers after the second 
 day, and the appellant asks, before any motion is made by the ap- 
 pellee, to have the appeal entered. The rigid practice that has 
 been enforced in this case, ought only to be adopted in cases 
 where the appellant does not appear, or take any steps to bring 
 his appeal forward, and should not be applied when he has been 
 guilty of no laches and the delay has been occasioned by the ne- 
 glect of the justice. In New York, it has been decided, that 
 though the justice does not file his return until after the first day 
 of the term next after the appeal, they ought not to quash it, but 
 proceed thereon when the return comes in. Exparte Kellogg, 3 
 Co wen's Rep. 372. 
 
 Opinion of the Court, by Judge IRVIN: 
 
 This cause came up on error to the District Court of Milwau- 
 kee county. 
 
 The suit was brought before a justice of the peace to recover 
 Compensation for the use of horses. Before the justice, defend- 
 ant made no defence, but after judgment given for plaintiff, took 
 an appeal to the District Court. The justice gave judgment on 
 the 12th of February, 1842. The District Court commenced on 
 the 13th of June, 1812, and to which court the justice made his 
 return the 18th of June, when the counsel for the appellant moved 
 the court to have the same entered, which was not so ordered, 
 the clerk merely marking it filed. On the first day of July of 
 the same term, the appellee, by his counsel, moved the court to
 
 REPORTS. 147 
 
 have the appeal entered, which was done, and judgment in his fa- 
 vor given, for the sum in which the justice had given judgment, 
 together with interest, and twelve per centum damages; to all 
 which the appellant objected. 
 
 By the Gth section of the 9th article, page 333 of the Statutes 
 of Wisconsin, the justice is required to file, on or before the first 
 day of the term of the District Court next after the appeal, in 
 the office of the clerk of said court, a transcript of his docket, to- 
 gether with all the papers in the case in which the appeal is ta- 
 ken. By the 8th sec. the appellant shall cause an entry to be 
 made of the appeal on or before the second day of said term, un- 
 less otherwise ordered by said court; "provided, that if the appel- 
 lant shall fail or neglect to enter the appeal as aforesaid, the ap- 
 pellee may have the same entered, at any time during that or some 
 succeeding term, and the judgment of the court below shall be 
 entered against the appellant for the same, with interest, and 
 twelve per centum damages and the costs of both courts." 
 When the justice failed to make return, as the law required, the 
 appellant might, on or before the second day of the term, have 
 taken a rule against him to make return, upon the coming in of 
 which, he could then have proceeded in the suit; but failing as he 
 did, until the time at \vhich_the justice made return, the right had 
 accrued to the appellee, to have and take the judgment which he 
 obtained at that term of the court. The District Court commit- 
 ted no error, and the judgment therein given must be affirmed 
 with costs. 
 
 and WELLS, for pl'tff in error.
 
 148 REPORTS- 
 
 JOEL HYDE,^Jfm error, t 
 
 vs. > Error to Rock county. 
 
 JOB BARKER, dt/'t in error,} 
 
 AFTER evidence has been given on the part of the plaintiff, pertinent to 
 the issue, the court has no power to order a peremptory non-suit against 
 the will of the plaintiff; and a justice of the peace cannot, in such case, 
 non-suit the plaintiff although he is trying the cause without a jury. 
 
 Hyde brought suit against Barker before a justice of tbe peace 
 in Rock county, on an account for work and labor. The plaintiff 
 filed a written declaration in assutnpsit, containing three counts. 
 The first count was on a special contract made in August, 1841, 
 to build ii corn b:un for the defendant for $24 the work to be 
 done by ihc 20lh October, 1841 ; the second count was on a sim- 
 ilar contract, the work lo be done in a reasonable time; and the 
 third was for work and labor generally. The defendant pleaded 
 the general issue. The case wns tried by a justice without a 
 jury, and on the trial the plainliff proved that he had done a prin- 
 cipal portion of the work on the contract, but did not. prove that 
 it was completed as set out in the first count in the declaration, 
 and attempted to prove what the work was worth, which was ob- 
 jected to by the defendant, and the objection sustained by the 
 justice. The defendant moved for a nonsuit on the ground that 
 a special contract had been set up, and the plaintiff had failed to 
 prove performance on his part. The plaintiff, pending the motion, 
 asked leave to withdraw the first count in the declaration and let 
 the evidence apply on the other counts, which the justice refused, 
 and gave judgment of nonsuit against the plaintiff. 
 
 The case was taken into the District Court by certiorari, where 
 the judgment of the justice was affirmed, and Hyde has prosecu- 
 ted this writ of error to reverse the judgment of the District 
 Court. 
 
 J. II. KNOWLTON, for pPtff in error: 
 
 The justice ought to have received evidence of the value of 
 the work done, under the common count, although the proof may 
 have failed to establish a special contract, or to show performance 
 by the plaintiff. Although there be a special contract, and the 
 plaintiff has fuilcd to perform it in full, or perform it so negligent-
 
 REPORTS. 149 
 
 }y (hat a recovery cannot be had upon it; yet if the defendant has 
 received any benefit from it, he must pay what the work is reason- 
 ably wor'.h. 2 Phil. Ev. by Cowen & IMI, 109, note 311, page 
 103; 2 Starkie, 945; 20 English Com. Law Rep. 120; 7 do. 
 401; 23 do. 105; 1 Comyn on Contracts, 5, 0; Ilayward vs. 
 Leonard.! Pick. LSI ; Smith vs. The First Congregational Meet- 
 ing House in Lowell, 8 Pick 178. 
 
 NOGULK, for deft in error: 
 
 There are cases where a plaintiff may recover for the partial 
 performance of a specified contract: But where the contract is 
 to do a piece of work, in a particular manner and by a given time, 
 the plaintiff cannot recover fur a partial performance, unless the 
 defendant lias waived a complete performance; 14 Mass. Rep. 
 2G8; 2 Starkie, 942 and notes. 
 
 Whatever may be the opinion of (he Court as to the errors,of 
 the justice, a judgment of non-suit ought not to be reversed. 
 The plaintiff was not barred from proceeding de novo, and the 
 case in this court, is a mere question of costs. 
 
 WHITO.V, in reply : 
 
 If the judgment of the justice was erroneous, then the judg- 
 ment of the District Court ought to be reversed. The evidence 
 shows an acceptance of the work, and if it was not done according 
 to the contract, the plaintiff is entitled to recover as much as it is 
 worth. This must be the decision if the principles laid down in 
 the case read from 7 Pickering are applied. 
 
 Although the case is a small one, the principles involved are 
 of great importance, and entitled to a deliberate consideration. 
 
 Opinion of the Court, by Judge MILLER: 
 
 This case came before the District Court of Rock county, by 
 cerliorari to a justice of the peace. The error complained of was 
 that the justice, after hearing the testimony on part of the plain- 
 tiff in support of the claim and pertinent to the issue, on motion 
 of the defendant, for reasons therein stated, entered a non-suit 
 against the plaintiff 's consent. This judgment was affirmed by 
 the court; following in this particular, the practice in the Slate of 
 New York. That practice, we do not recognize in the District 
 Court, and consequently, the same, if not belter reasons, should 
 prevent it before a justice. If it were tolerated, serious injus- 
 tice may, in some instances be done. The Supreme Court of the 
 United States have repeated the rule so frequently, that after per-
 
 150 REPORTS. 
 
 tinent evidence is received on part of plaintiff, the court has no 
 authority to order a peremptory nop-suit, against the will of the 
 plaintiff, on the triaj of the cause before the jury, that the point 
 is not now to be questioned. The plaintiff may agree to a non- 
 suit, but if he do not choose, the Court cannot compel him to sub- 
 mit to it. Elmcre vs. Grymes, 1 Peters, 471 ; Dcwolfvs. Raband 
 and others, 1 Peters, 497; Crane vs. The Lesee of Morris and 
 others, 6 Peters, 598. 
 
 This case was disposed of by the justice. He was bound to 
 the same rule, as if there had been a jury cmpannelled. As the 
 evidence comes up imperfectly, it might be unsafe to risk an 
 opinion, on the points of law attempted to be raised upon the re- 
 cord, and the Court, for this reason, will not attempt their consi- 
 deration. 
 
 The judgment must be reversed, and so certified to the District 
 Court of Rock county, with orders to the said district court to re- 
 verse the judgment of the justice. 
 
 J. H. KNOWLTON and WIIITON, forpl'tff in error. 
 
 NOGGLE, for deft in error. 
 
 GEORGE II. COX, plaintijfin error, } 
 
 vs. > Error to Grant county. 
 
 3 AMES G ROSIIONG, et al. drfendanti in error. \ 
 
 TIIF. slntutn to prevent forcible entries and detainers provides for two 
 classes of cases; an unlawful and forcible entry and a forcible detainer, 
 and a lawful and peaceable entry and unlawful detainer; and in proceed- 
 ing under the statute, the complaint must state a case of one or the other of 
 these cl.-isses. A complaint for a forcible detainer, without alledging a for- 
 cible entry, is bad. 
 
 The complaint must describe the premises with reasonable certainty ; and 
 
 where the comj 
 piece of land o 
 owned by cert; 
 tainty of descr 
 Where the cc 
 
 aint describes the land as a range of lead ore and a strip or 
 each side running easterly and westerly across the land 
 in persons in a particular section, it is bad for the uncer- 
 ption. 
 nplaint is defective, the defendant does not waive the ob- 
 
 jection by going to trial, but he may make it at any stnge of the proceed- 
 ings.
 
 REPORTS. 151 
 
 In proceedings in forcible entry and detainer, the provisions of the sta- 
 tute must be strictly pursued. 
 
 Justices' courts are not couris of record, and do not proceed according 
 to the course of the common law, and so far as their powers arc concerned, 
 they are confined strictly to the authority given them by statute. They 
 can take nothing hy implication, but must show that the power which they 
 exercise is expressly given to them in every instance. 
 
 Where a cause has been removed from one justice to another, and the 
 parties proceed to trial wiihout objecting to the justice to whom the case 
 was sent, it is too late after the trial to object because he was not the 
 nearest justice to the one before whom the cause originated. 
 
 In April, 1842, Cox commenced a proceeding in forcible detainer 
 against James Groshong and others, before Samuel Tompkins, a 
 justice of the peace in Grant county. The complaint stated that 
 Cox was " the owner of, and justly entitled to the possession of, 
 the undivided one-fourth part of a certain range of lead ore and a 
 strip or piece of land on each side, running easterly and westerly 
 across the land hereinafter described, and the right of searching 
 and digging for lead ore thereon, situate on the lands now owned 
 by James Groshong, Jonathan Craig, and said Cox, in section se- 
 venteen, township No. four north, of range No. three west, in said 
 county of Grant." "That one James Groshong, Jefferson Gro- 
 shong, and one Stone, did, on or about the first day of February, 
 1842, wrongfully, and without lawful authority, enter into and upon 
 the said undivided one-fourth part of the said range of lead ore, 
 and the said strip of land and the right of searching fur lead ore 
 thereon, and took possesion of the same, against the right of the 
 complainant, and have, from thence hitherto, wrongfully, unlaw- 
 fully, with force and arms, with a strong hand and multitude of 
 people, detained the possession thereof from the said complain- 
 ant." 
 
 Process was issued upon the complaint, and returned to the 25th 
 April, on which day, on the application of James Groshong, one of 
 the defendants, the case was adjourned to the 30th April. It ap- 
 pears that upon this application the justice first adjourned the cause 
 to the Glh May, but immediately afterwards his attention was di- 
 rected to the statute upon the subject, from which he considered 
 that he had not the power to adjourn the cause for so long a time, 
 when he recalled the parties and witnesses, and notified them lhat 
 the adjournment was to the 30th April, and that not more than fif- 
 teen minutes had elapsed fiom the time of first fixing the adjourn- 
 ment. 
 
 On the 30th April, Jefferson Grosliong, one of the defendants,
 
 152 REPORTS. 
 
 applied for and obtained a change of venue from before Justice 
 Tomkins, who immediately transmitted the cause to Jeremiah 
 Spencer, as the nearest justice qualified to act. Spencer was at 
 that time, accidentally in Lancaster, where Tnmpkins was holding 
 his court, but his residence was not so near as that of some other 
 justices in ihe county. Spencer immediately proceeded with the 
 trial of the cause, and empannelled ihe same jury tint had been 
 summoned before Tompkins. Before the trial commenced, the 
 defendants filed before Justice Spencer an affidavit for a continu- 
 ance, setting out, as the grounds, the absence of a material wit- 
 ness, who resided in Illinois: that due diligence had been used 
 to procure him; that Jarnes Groshong was then gone for him; and 
 that the defendants believed if an adjournment was granted for 
 seven days the witness could be procured. The motion was over- 
 ruled by the Justice, and the trial proceeded. The jury returned 
 a verdict against the defendants, upon which the Justice rendered 
 a judgment, and awarded a writ of restitution. 
 
 The defendants took the case into the District Court by writ of 
 certiorari, and assigned the following errors in the proceedings 
 before the Justices: 
 
 1. For want of a legal, full, and sufficient complaint in the 
 law; a legal, full, and sufficient summons thereon. 
 
 2. For that the said Justice Tompkins erred, when after he 
 had, on the application of the defendants, adjourned the said ac- 
 tion over to the Gth of May, and dismissed the jury, witnesses, and 
 parties, in setting aside that continuance, and compelling the de. 
 fendants to answer on the 30th of April. 
 
 3. For that the said Justice Tompkins erred, when he changed 
 the venue from before himself to Spencer, not the nearest justice 
 to the place of holding the court of said Tompkins, or his place of 
 residence, and when there were other justices residipg six rnilea 
 nearer the said Tompkins. 
 
 4. For that the said Justice Spencer erred, when he took cog- 
 nizance of the case at the place he did, without his docket, and 
 tried it by the same persons whom the said Tompkins had sum- 
 moned to sit as jurors in the case, without issuing a new process 
 for a jury. 
 
 5. For that the said Justice showed himself to be a partial jus- 4 
 tice, from the mnnncr in which he procured the case to be brought 
 before himself on the change of venue from before said Tompkins.
 
 REPORTS. 153 
 
 6. For that the said Justice Spencer erred, in not giving the 
 defendants a continuance on their application on affidavit filed, the 
 said Justice admitting that the causes entitled them to a contin- 
 uance. 
 
 7. For that the said Justice Spencer erred, in not having hig 
 docket present, and reducing his proceedings and decisions to wri- 
 ting. 
 
 8. For that the jury erred in giving a verdict in favor of the 
 plaintiff, the testimony not having supported his complaint; and 
 the justice erred in rendering judgment on the verdict. 
 
 9- For that the whole proceedings were illegal and void. 
 
 It appears from the return of Justice Spencer, that this was the 
 first case which he ever tried; that he had no docket al the time, 
 and did not then reduce the proceedings and decisions to writing; 
 but when he went home he took down the material parts, and 
 made up his docket as soon as possible. 
 
 At the March term, 1843, tlie District Court reversed the judg- 
 ment of the justice; and the cause is brought into this court by 
 the complainant, Cox, on writ of error to reverse the judgment of 
 the District Court. 
 
 EASTMAN, for plaintiff in error: 
 
 The objections that were taken to the complaint and summons 
 are not tenable. They are formally drawn, and the complaint sets 
 out the plaintiff's case with legal certainty. 
 
 The change of time in the continuance by Justice Tompkins 
 was right and proper. The statute gives him no power to con- 
 tinue a cause for so long a period as was first fixed upon, and on 
 discovering his error, within fifteen minutes, he changed it to a 
 time within his authority, and notified the parties and witnesses of 
 the alteration, and 1,0 injury resulted to any one. It was the duty 
 of the Justice to correct the error before the parties had sepa- 
 rated. 
 
 When the venue was changed, Spencer was the nearest justice 
 in fact to Tompkins. He was in Lancaster accidentally on busi- 
 ness, and was qualified to try the cause. A justice is not confined 
 to any particular district, but his authority is co-extensive with the 
 county, and he can hold his court at any place within the county. 
 In this respect, the statu'e was fully complied with. 
 
 Tompkins was bound by law to transmit all the papers in the 
 case to Spencer, and, of course, the venirie facias and return. 
 
 20
 
 154 REPORTS. 
 
 Spencer was bound to proceed with the cause as though it had 
 been commenced before him; he therefore had to take up the 
 case precisely where Turnpkins left off, with the jury that had 
 been summoned. He had no right to discharge the jury. 
 
 The minutes taken down by Justice Spencer to enable him to 
 make up his docket, were sufficient. The record was properly 
 made up as soon as it could be done, and h is not vitiated be- 
 cause he had not previously procured a docket and wrote the pro- 
 ceedings in it at length as they occurred. 
 
 The refusal of Spencer to continue the cause cannot be re- 
 garded as error. The question was one for his discretion, and if 
 he thought the grounds not sufficient, the court cannot se"t aside 
 the proceedings for that cause; especially when it is borne in mind 
 that this was the second application^) continue the cause by the 
 game parties, and the record does not show any steps taken to pro- 
 cure the teslimony of the absent witness. 
 
 The court will find, upon examining the record, that evidence 
 fully supports the verdict and judgment. Upon this point, the 
 courts require a stronger case to reverse a judgment than they 
 would to grant a new trial; and in this case, according to authori- 
 ty, the court could not grant a nesv trial, on the ground that the 
 verdict was against evidence. 2 Salk. 050; id. 654; id. 640,647. 
 Cook vs. Berry, I Wilson, 93. Graham on New Trials, 10, 15, 
 16, 35, 168, 1U4, 210, 281. 3 Blackford, 305. Sieplicn on 
 Plead. 147. 1 Scammon 538, 539. 2 Scarnmon, 120, 130. 
 
 DUAN, for defendants in error: 
 
 The complaint in this case is bad, because it does not suffi- 
 ciently describe the premises. The description should be so cer- 
 tain that the officer in making restitution can know what to restore. 
 It is also bad for not alledging force in the entry. The statute 
 does not authorize proceedings fur a forcible detainer where the 
 entry has been peaceable. 
 
 After Justice Tompkir.s had adjourned the cause to the 6th of 
 May, he had no right to fix an earlier day for the trial, without the 
 consent of the defendants. When the continuance was once made, 
 he had no more power over the case, until the time of trial ar- 
 rived. The statute docs not prohibit a justice from continuing a 
 case, for cause shown, for a longer period than six d;iys; it only 
 limits him to that time when he continues it of his own volition. 
 
 The meaning and intention of the law in changing the venue of
 
 REPORTS. 155 
 
 causes before justices of the peace is, lhat the case shall be sent 
 to tho nearest resident justice, (acts of 1840,23,) and not thnta 
 remote justice who may be accidentally present shall lake up the 
 case and dispose of it. 
 
 It was error in Justice Spencer to empannel the same jury that 
 had been summoned before Justice Tornpkins. Although the law 
 requires the pnpcrs to be transferred, so as to place the cause 
 properly before the new justice, it does not authorize the transfer 
 of the jury. Ho should hive appointed a time and place for the 
 trial, and issued a new veniric facias accordingly. 
 
 The defendants were entitled to the continuance asked for be- 
 fore Justice Spencer. They did not expect a trial on that day, and 
 were not bound to be prepared for it. They appeared for the pur- 
 pose of changing the venue, which they knew they hud a right to 
 do under the law, and they had a right to expect that a time and 
 place would be fixed for the trial, of which the parties would ba 
 notified. But the affidavit shows sufficient grounds. It was not 
 necessary to have a subpena issued for a witness who resided out 
 of the Territory, for it could not reach him. One of the defend- 
 ants was gone for the witness, and they believed that he could be 
 produced; and this was all the diligence required by the law. 1 
 Leigh, 1. 4 Hen. & Mun. 157. 
 
 It will be found that the verdict was clearly contrary to the evi- 
 dence. The complainant failed to prove his claim as he set it 
 out; and there was not a particle of evidence showing the use of 
 any force by the defendants. Force, actual and not constructive, 
 must be proven to sustain the complaint. 3 Bacon's Ab. 716. 
 
 Opinion of the Court, by Judge MILLEK: 
 
 This case was commenced under the act to prevent forcible en- 
 tries and detainers by George H. Cox, against James Groshong, 
 
 Jefferson Groshong, and Stone, before a justice of the 
 
 peace of Grant county. A verdict and judgment were rendered 
 against the said defendants before the Justice, which they removed 
 to the District Court of said county, by certiorari, where the said 
 judgment was reversed; upon which decision of the said District 
 Court the said Cox sued out a writ of error. 
 
 The examination of the record will require us to consider such 
 of the: exceptions filed in the District Court, to the proceedings be- 
 Fore the Justice as may be material. 
 
 The first exception filed was to the complaint.
 
 156 REPORTS. 
 
 The complaint represents, that " James Groshong, JefFersoa 
 Groshong, and one Stone, whose Christian. name is unknown to 
 the complainant, did, on or about the first day of February, 1842, 
 wrongfully and without lawful authority, enter into and upon the 
 said range of lead ore and the said strip of Innd, and the right of 
 searching and digging for lead ore thereon, and t;ike possession of 
 the same, against the right of the said complainant, and have, from 
 thence hitherto, wrongfully, unlawfully, forcibly, with force and 
 arms, with strong hand and multitude of people, detained the pos- 
 session thereof from ihe said complainant, and still do, wrongfully, 
 unlawfully, forcibly, and with strong hand and force and arms, and 
 multitude of people, keep out and detain from said complainant, the 
 possession thereof, contrary to the statute and the laws of the said 
 Territory, after demand of possession thereof by complainant;" 
 and prayed that summons might issue fora forcible detainer. 
 
 By the act upon which this proceeding was founded, any jus- 
 tice shall have authority to inquire by a jury, as well against those 
 who make unlawful and forcible entry into lands, tenements, and 
 Other possessions, and with a strong hand detain the same; as 
 against those who, having lawful and peaceable entry into lands, 
 tenements, and other possessions, unlawfully detain the same. 
 By this statute, there are two classes of cases made cognizable be. 
 fore the justice: first, an unlawful and forcible entry and detain- 
 er; second, a lawful and peaceable entry and an unlawful deiain- 
 er. The complaint does not come within either class. It charges 
 that the defendants unlawfully, and without authority, entered the 
 premises, while, if it was desired to proceed for the entry, it 
 should have charged that they unlawfully and forcibly entered. 
 But was claimed by complainant a summons for an unlawful de- 
 tainer merely, which comes under the second class when the en- 
 try is lawful and peaceful. From this it will appear, that this 
 complaint did not conform to the statute, and for this alone, the 
 District Court did right in reversing the proceedings before the 
 Justice. 
 
 This is a proceeding authorized and regulated by statute, and 
 committed to a tribunal whose jurisdiction and authority are crea- 
 ted by the statute alone; for these reasons, the provisions and di- 
 rections of the statute must be strictly pursued. Justices' courts 
 are not courts of record, and do not proceed according to the 
 course of the common law, and so far as the powers are concern-
 
 REPORTS. 157 
 
 ed, they are confined strictly to the authority given them by the 
 Statute. They can take nothing by implication, but must show 
 the power which they exercise expressly given them in every in- 
 stance. Thomas vs. Robinson, 3 Wend. 267. Mills vs. Martin, 
 19 John. 33. M'Carty vs. Shannon, 3 John. 429. Bordcn vs. 
 Fitch, 15 John. 140. Andrews vs. Montgomery, 19 Joh.i. 162. 
 
 The complaint sets forth: "that the said George H. Cox was, 
 on the first day of January last, has been, and still is, the owner of 
 and justly entitled to the possession of a certain range of lead ore, 
 and a strip of land or piece on each side thereof, twenty-five 
 yards wide on each side, running easterly and westerly 
 across the land hereafter described, and the right of search- 
 ing and digging for lead ore thereon, in section 17, township No. 
 4 north, of range No. 3. west, in said Grant county." This would 
 also appear to be too vague and uncertain. It does not describe 
 the land by any marks, description, or boundaries, nor does it even 
 refer to its location in the section. It is true, that a cour'. would 
 have a superintending power, which would always be promptly ex- 
 ercised, in case a plaintiff would take on a writ of restitution what 
 he had not recovered; but it is doubtful whether a justice could 
 exercise it. We are aware that it is impossible always to describe 
 a tract of land with so much accuracy as to enable the sheriff to de- 
 liver it, without some person to show him, on the ground, the 
 boundaries alluded to in the writ; but, nevertheless, the premises 
 must be described with reasonable certainty. See, on this subject 
 Burdick vs. Norris.2 Watts, 28. Martinvs. Martin, 17 Sergt. &. 
 Rawle, 431. The Borough of Harrisburgh vs. Crongle, 3 W. &, 
 S. 460. Smith vs.Jcnks, 10 Sergt. & Rawle, 153. Fisher r*. 
 Lorick, 7 Sergt. & Rawle, 99. 
 
 The remaining exceptions will be disposed of together. The 
 justice is allowed to adjourn, at his discretion, any trial under the 
 act, not exceeding six days. This is a very summary proceeding, 
 which requires the parties to make every effort to procure their tes- 
 timony and be prepared for the trial. By the act of 1810, section 
 8, authorizing ihe removal of causes from one justice to another, 
 after the oath is made by the defendant, the justice shall imme- 
 diately transmit all the papers in the case, to the nearest justice 
 qualified by law to try a cause between the parties in vhe suit, who 
 shall proceed to hear and determine said cause in such manner as 
 if it originated before him. In this case, the parties made no ob-
 
 158 REPORTS. 
 
 jection to Justice Spencer. The papers were immediately trans- 
 mitted to him by Justice Tompkins, and the parties, without ob- 
 jecting to his jurisdiction, went to trial on the same day of the re- 
 moval of the cause. After this, it was too late to make the objec- 
 tion that lie was not the nearest justice to Justice Tompkins qual- 
 ified to act, if it co;ild be made at any time. 
 
 The tri:il before Justice Spencer did not waive the errors in the 
 complaint. As we have seen that the jurisdiction of a justice 
 must he made affirmatively to appear, there are no presumptions 
 in its f.ivor. It was competent to the defendant, to raise the ob- 
 jections at any stage of the proceedings. 
 
 As the complaint is defective, and for this reason, the judgment 
 of the Justice was correctly reversed by the District Court, it is 
 unnecessary to examine the questions raised upon the evidence. 
 
 Judgment affirmed with costs. 
 
 EASTMAN, for plaintiff in error. 
 
 DUMV, for defendant in error. 
 
 JAMES D. DOTY, "| 
 
 ALKXANDI-'.lt J. IRWIN, and 
 
 DAVID JONES, pl'ffiin error, J- Error to Dane county. 
 
 | 
 MOSCS M. STRONG, depLin error.) 
 
 WHERE a defendant is defaulted for want of a pk-a, and the plaintiff 
 agrees to set aside ilic default on condition that the defendant will plead to 
 the merits and u'o to trial, a general demurrer to the declaration is not such 
 a plea ns the plaintiff is bound to receive, and if he objects to it, the court 
 should not allow it to be filed. 
 
 Then; is no rule of court or of law that limits the time of returnine a de- 
 position into court, or directs by whom it shall he delivered ; and w here a 
 deposition <vas duly taken nml certified, and reum ed into court by the 
 plaintiff on w'msc !> hain't was taken on the second day of the term, sev- 
 eral month* ;i f>cj- it u -:is taken, it outfit nt on that account to he rejected. 
 
 A (!(;, oslii,, n or a witness should lie objected to a: the lime of offering to 
 read the deposition >~ s\var the wilni ?s : If once rid mil ted. the court can- 
 not take either Irom the jury by instruction; though the court may instruct 
 the jury to disregard evidence or testimony on the ground of interest devel- 
 oped in the trial.
 
 REPORTS. 159 
 
 Exceptions to testimony taken in the court below, will not be considered, 
 Unless the evidence is made a ]>:irt ofilio record by the hill of exceptions. 
 
 Common curriers "'- liable, upon their irencral iindci'taUinx, to '.he pub- 
 lic, lor ni:','lec!ingur rrfii-iii.; to tr.mspori ilie goods ol any person v. ho ap- 
 plies to iliem with st.'eli goods as tlu-y have iiiidertaken in carry, in condi- 
 tion to b(! transported, at die place designated for rcci-ivin,' thc;n; and no 
 special coiiiract \viili die particular person so applying, is ntcc^ury to 
 charge them. 
 
 In an action rr^ainst common carriers upon their general undertaking, it 
 is necessary to lix upon them llicir character as such by testimony ; and a 
 notice of ilieir general undertaking, published by them in a public news- 
 paper, when identified with the defendants by other evidence, is proper 
 testimony in the c-ausc. 
 
 In an action against common carriers for neglecting or refusing to carry 
 goods, it is not necessary to prove any special undertaking ol' the defend- 
 ants. 
 
 Common carriers are liable for refusing to carry when properly request- 
 ed, as well as I'or negligently carrying or failure to carry after the freights 
 have been delivered to them. 
 
 A refusal of the court to instruct the jury upon abstract principles of law, 
 not presented in the record or by the facts in tke case, is not error: arid 
 the court must respond to the facts so hir, as to decide whether a principle 
 of lnwis 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 plain- 
 tiff, is no de'.'cnce to the action; if the fact had been that boats could not 
 possibly paes at the time of the request, from causes out of die control of 
 the defendants, they would then be excused for refusing to carry. 
 
 This was an action of nssumpsif, originally commenced by 
 Strong against the plaintiffs in enor, in '.lie 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 rea- 
 sonably requested to do, from Green Bay to the Portage, at one 
 dollar and Uven'y-five cents per hundred pounds; that on the lOlh 
 September, 1S39, the plaintiff" had a! 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 de- 
 fendants, not regarding their said undertaking, refused so to do; 
 that the plaintiff" was unable to get his goods transported by wa- 
 ter, and was compelled to leave them for a long time at Green 
 Bay by which they became greatly damaged; and that the plain- 
 tiff was put to great expense in hiring teams lo haul the said goods 
 from Green Bay to the Portage, by all of which he sustained 
 great damage, and averred that the defendants became liable to 
 pay said damages, and that in consideration thereof they under-
 
 160 REPORTS. 
 
 took 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 de- 
 claration, upon which he filed anew declaration, setting up a spe- 
 cial 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 mer- 
 its and go to trial; whereupon they oft't-red to file a general de- 
 murrer 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, stating that he was not ready for trial by reason of be- 
 ing taken by surprise by the deposition of Thomas J. Ormsbee, 
 taken by the plaintiff and filed during the term, and that he be- 
 lieved he could, if lime was allowed, disprove the testimony of 
 said Ormsbec. The record does not show that the court made 
 any disposition of this affidavit. The cause was tried at that terra 
 of the court, and in the progress of the trial, the defendants ex- 
 cepted to the following decisions of the court: 
 
 1. In permitting the plaintiff to read in evidence, an advertise* 
 ment, 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 a file of said newspaper 
 from July to October, 1838, containing said advertisement.
 
 REPORTS. 161 
 
 2. To the admission of a certain written contract between the 
 plaintiff and Calvin Frink. 
 
 3. To the admission of ascertain written contract between the 
 plaintiff, and William Longdo. 
 
 4. TD the admission of ihe deposition of Ormsbee. 
 
 And also to the decisions of the Court upon the several instruc- 
 tions to the jury asked for by the 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 25lh May, 
 184 1, to Rutland, Vermont, according to rules of court; was ex- 
 ecuted on the 27th July, 1811, 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 at a conversation be- 
 tween the plaintiff Strong and Jones, one of the defendants, on 
 the 31st May, 1839, in which Jones said that Doty, Irwin and him- 
 self, were ;ill jointly interested and engaged in transport ing property, 
 &.C. up Fox River to Fort VVmnebago; lint each depended so much 
 upon the others, that little or nothing was accomplished; that 33 
 soon as Strong's goods arrived at Green Bay, he assured Frink 
 and those with him, that they and the goods should be immediate- 
 ly sent up; that Frink and Longdo were constantly urging to be 
 sent off with the goods, but they were put off and delayed until 
 Strong came for them in the winter: That soon after the goods 
 of Strong arrived at Green Biy, he (Jones) earnestly and particu- 
 larly tvrgod Doty and Irwin to have them sent up immediately; 
 that he (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 Do'.y and Irwin had detained the boats 
 in hopes of getting a contract to transport government troops to 
 Fort Winnebago, and then it was too Lite; that he (Jones) had 
 found much fault with Doty and Irwin for not sending up Strong's 
 goods, and they would all be obliged to pay Strong his damages; 
 that Strong then said to Jones, that his original intention had been 
 to send his goods by the Ohio Canal to Portsmouth, and thence 
 to Galena, but at Buffalo he saw a Green Bay newspaper contain- 
 ing an advertisement signed by Doly, JoJies and Irwin, agreeing 
 
 21
 
 162 REPORTS. 
 
 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 B.iy; that Jones upon being asked, said that they had is- 
 sued 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 nut 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 da ma- 
 nges; that Doty and Irsvin ought to pay it. and if he had been at home 
 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 va- 
 rious errors in the record of the proceedings, which are noticed 
 in the opinion of the Court. 
 
 JACKSON, for plt'fls 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 are to be considered common carriers, see Story on Bailment, 
 322; and as to what arc their duties and responsibilities, same au- 
 thority,328. 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 con- 
 dition; or if he has no convenience to carry them; or if they are 
 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 durham boats; 
 they arrived at Green Biy 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 set out on his journey. 
 
 The advertisement read from a public newspaper on the trial 
 below fur the purpose of proving that the defendants were coin-
 
 REPORTS. 163 
 
 mon carriers, ought not to have been admitted. To make it evi- 
 dence, it was necessary to prove that it was published by the di- 
 rection or sanction of the defendants, in order to identify them 
 with the publication. This was not done. Onnsbeo's deposi- 
 tion only piovcs (he 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 thu declaration will show, that no possible contract 
 of the kind could have any legitimate application to it. 
 
 The deposition of Ormsbce 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 calcula- 
 ted 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 prac- 
 tice. 
 
 The declaration alleges no undertaking to the plaintiff to carry, 
 but a general undertaking lo 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 car- 
 riers. A delivery and acceptance of the goods to be carried, be- 
 gins the responsibility. Questions may arise as to whether a deli- 
 very 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; 2Kent,4G8. 
 
 The fifth instruction asked for was proper to be given as appli- 
 cable 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 com- 
 mon carriers, and that is ihc only liability declared upon, the plain- 
 tiff ought to show that he had paid or tendered the price oi' carry- 
 ing the goods: 2 Kent, 405.
 
 164 REPORTS. 
 
 In the refusal of the court to give the seventh and eighth in* 
 structions, .the court assumed the facts and did not leave (hem 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 fuels. 
 
 The court refused to give the ninth instruction, on the ground 
 that the undertaking of the defendants in the public advertise- 
 ment, implied a contract. If the plaintiff relied upon the gene- 
 ral liability and implied contract of the defendants, then all evi- 
 dence 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 evi- 
 dence. Cowen's Treatise, 96, 97; 2 Starkie, 198; Clark vs. 
 Smith, 14 Jonh. Rep. 326. 
 
 DUSN, for def 't in error: 
 
 The declaration is not a common count in its ordinary accepta- 
 tion, 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 de- 
 position of Ormsbee proves the admission of the defendants be- 
 low, 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 refu- 
 sed, because they had no connection with the case. However 
 correct the principles of law may be in the abstract, it was no er- 
 ror in the court to refuse to giva them to the jury, when there 
 were no fuels in the c>ise to which they could be applied. 
 
 The deposition of Ormsbee 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 n'jut it. If Ormsbee 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 ev- 
 idence; and so in the case of every witness. There is nothing 
 in the objections and they have neither law nor reason for their 
 foundation. 
 
 WUJTON, in continuation:
 
 REPORTS. 1 65 
 
 Tho advertisement in the newspaper, taken in connection with 
 the deposition of Ormsbce, was proper evidence for 'tiio jury. 
 The deposition identified the publication with the defendants, who 
 acknowledged it and said lh< y intended to live up to it. Take the 
 testimony altogether, and it is (You from doubt. 
 
 There is nothing in the record to enable this court to judge 
 whether the written contracts between Strong and Prink, and 
 Strong and Longdo, were properly admitted or not. The con- 
 tracts themselves arc not before the court, and in the absence of 
 any thing to show the contrary, the hw presumes thai 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, tint 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 lie 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 ware- 
 house at their request or by their agreement, and th.it the trans- 
 portation was delayed on no other account than the expectation 
 of getting.a government contract. Then there was no applica- 
 bility in the instructions asked, and upon reference to the testimo- 
 ny it will be seen, lint they were based upon a supposed state of 
 case that did not exist; tho court therefore decided correctly in 
 refusing them. 
 COLLINS, in reply: 
 
 It is not competent for one partner to bind his co-partners by 
 admissions, after the dissolution of the partnership; nor can the 
 declaration of one of several defendants be received as evidence 
 against all until a partnership or joint liability is first proved 
 against all. The acknowledgments of Jones in this case, arc not 
 legal evidence against Doty and Irwin 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
 
 166 REPORTS. 
 
 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. Where facts are controverted and evi- 
 dence lias been given to prove them one way or the other, the 
 court should, if requested, give the instruction hypothctically, 
 predicated upon one or tiie oilier state of fuels, and it is error for 
 the court to assume that facts have or have not been proven, and 
 refuse the instruction. 
 
 We 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 
 piinciples 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 be carried, that they were 
 brought to the phce where the carrier usually received his freights, 
 and that the price was paid or tendered ; and that the carrier, with- 
 out 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 (o make out his cause of 
 action; and to supply the 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 de- 
 fendants on their undertaking to the public, upon their legal lia- 
 bility for refusing to receive and carry the goods; therefore, evi- 
 dence 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 depo- 
 sition, relates to special engagements, and ought to have been re- 
 jected, because it does not apply to the issue. The plaintiff can- 
 not 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 DUNN: 
 Error is prosecuted in this case to reverse the decisions and 
 opinions of the District Court of Dane County, on the various 
 grounds [(resented in the assignment of errors. The declaration 
 of Strong, plaintiff in the court below, alleges: "That the defend- 
 ants (who arc plaintiffs in error) made arrangements on or about 
 the 2Gih May, 1S3S, at Green Bay, in the county of Brown, and
 
 REPORTS. 167 
 
 Territory of Wisconsin, to transport merchandize from said Green 
 Bay to a place called the Wisconsin Portage at or near Fort. Win- 
 nebago, in the county of Portage, in said Territory, in durham 
 boats of thirty tons burthen, and that they then and there under- 
 took, assumed and promised to the public, to transport, for the 
 sum of one dollar and twenty-five cents per hundred pounds, 
 from Green B;iy aforesaid, to the Wisconsin Portage aforesaid, all 
 sucli merchandize or freight, as they should thereafter reasonably 
 be requested to do:" And the said plaintiff further averred in 
 his s:iid declaration, "that afterwards, on the 10th day of Septem- 
 ber, 1839, at Green Bay aforesaid, he then and there had a largo 
 ]uantity of freight, consisting of household furniture and mer- 
 chandise, of the weight of twelve thousand pound?, and that the 
 defendants were then and there requested by the agents of the 
 plaintiff to transport the same from Green Biy aforesaid to the 
 Wisconsin Portage aforesaid, but the said defendants, not regard- 
 ing 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 the court, which will be 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 oider, 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 un- 
 derstand 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 de- 
 fendants below, Jones and Irwin, were in an attitude to be de- 
 faulted for want of a plea under a rule; that the plaintiff below 
 waived his right to a default, upon the terms that the said defend- 
 ants should plead to the merits and proceed to trial. The de- 
 fendants, under this waiver, filed their general demurrer, to which 
 the plaintiff Strong objected, as against the terms of the waiver. 
 The court continued the objection under advisement to a subse- 
 quent day of the term, and thereafter on the seventh day of the
 
 168 REPORTS. 
 
 term, the court decided " that said plaintiff had a right to insist 
 on (he terms of his waiver," whereupon, on leave, said plaintiff 
 withdrew his joinder in demurrer, and the said defendants Jones 
 and Irwin pleaded the general issue, the plaintiff joined, and the 
 trial progressed. 
 
 We arc of opinion that tho terms of waiver are such as the 
 plaintiff mijihl properly have imposed; lint the demurrer was not 
 a plea (o the mulls, therefore not a compliance with the terms y 
 that tho plaintiff interposed hid objection timely, and tint the 
 court decided correctly in enforcing the terms. The joinder in 
 demurrer after the objection raised, without drawing it, does not 
 vary the case, or imply a consent of the pl.iintiff to join in demur- 
 rer 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 be en- 
 tertained if the 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 the supposed error disposed of, the following 
 are assigned: 
 
 1. The court erred in admitting (he newspaper containing the 
 advertisement of the Fox River Navigation Company, and also 
 the file of newspapers from July to October, 1638, in evidence. 
 
 2. The court ened in admitting in evidence, the contracts en~ 
 tered into between M. M. Strong, plaintiff, and Calvin Frink. 
 
 3. The court erred in admitting in evidence, the contract en- 
 tered ialo between M. M. Strong plaintiff and William Lrmgdo. 
 
 4. The court erred in admitting in evidence the deposition of 
 Thomas J. Ormabec. 
 
 5. The court erred in refusing to instruct on the first point sub- 
 mitted 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 pointsub- 
 milled by defendants.
 
 REPORTS. 169 
 
 10. The court erred in refusing to instruct on the sixth point 
 submitted by defendants. 
 
 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 were sued as common carriers; " per- 
 sons 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 be- 
 low, to prove, that they svere, 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 evi- 
 dence, 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 defend- 
 ants, might appear to be ercncous, but if, in the progress of the 
 trial, proofs are adduced supplying this deficiency, then the decis- 
 ion of the court, in permitting the advertisement to be read in ev- 
 idence, is relieved from every appearance of objection. The de- 
 position of Orrnsbee, made a part of tho record in this case by 
 the exception to the opinion of the court, permitting it to be read 
 as 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 errors are similar, and may be disposed of 
 together. The plaintiff ia error assume, that the District Court 
 erred, in permitting two contracts, one between Strong, pi .intiff 
 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 mnde a part of the record in this case by the bill of excep- 
 tions, and that the record presents nothing that will enable us to 
 decide the points raised. Therefore, they are dismissed without 
 further comment.
 
 170 REPORTS. 
 
 The fourth error assigned against the admission of the deposi- 
 tion of Thomas J. Ormsbee, is not apparent to tlio coun. The 
 rules interrogatories and cross interrogatories, choice of commis- 
 sioners by the parties, commission, taking of the deposition, cer- 
 tifying, sealing tip, and directing the same, nre all unexceptiona- 
 ble. There were two points raised in the arguments of the error 
 assigned: 1. The deposition wus returned some two months af- 
 ter it was taken. 2. It was delivered by the plaintiff' in the ac- 
 tion into the District Court, on the second day of the term at 
 which the cause 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 how it shall be con- 
 veyed. If a deposition is properly taken, certified, sealed up, di- 
 rected, 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 admissab'.e de- 
 position of a witness residing out of the Territory, under the law 
 and rules of court. 1. The entry of a proper rule fora commis- 
 sion. 2. Due notice thereof to ihe opposite parly, his agent or 
 attorney. 3. The issuing of a commission under ihe 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 the names of the witnesses to be examined, and n copy of 
 the first, fifth, and sixth rules on the subject of depositions. 4. 
 A compliance of the commissioners w'nh the said fifth and sixth 
 rules in taking the deposition and certifying the same. 5. A com- 
 pliance with the said 1st rule in sealing up and directing the same; 
 And Gih. That the matter thereof be legal and pertinent evidence 
 on the issue in the case. Oimsbee 1 ^ deposition, by applying this 
 test, is free from exception, and the Disirict 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 of a contract between the plaintiff and defendants to 
 carry the goods in question, other than the general advertisement 
 to the public, then the plaintiff cannot recover/' In deciding 
 this question, we must consider the nature and extent of the un- 
 dertaking of the defendants as applicable to the instruction asked.
 
 REPORTS. 171 
 
 The definition of "common carriers" given, affords an easy solu- 
 tion of the question. "A common carrier is one who undertakes 
 for hire or rewaid, to transport the goods of such as choose to em- 
 ploy him, from place to place." This is a general undertaking 
 and embraces every one in the community, and to make it partic- 
 ular as an undertaking with a single individual, it is only neces- 
 sary that he should apply with such goods as the common carrier 
 has undertaken to transport, in condition to be transported, at the 
 place designated, to have the good? carried on the terms proposed 
 in the undcitaking; then the contract becomes identical with the 
 person then applying, and it requires no other special contract be- 
 tween the parties, to subject the common carrier to all legal lia- 
 bilities as such to tho person applying; Allen vs. Sewcll, 1 Wen- 
 dell, 237; Bank of Orange vs. Brown, 3 Wendell, 15S. The 
 District Court decided correclly in refusing the inslruction. 
 
 Sixth error assigned: " The court erred in refusing to instruct 
 on the second point submitted by defendants.' 1 The second in- 
 struction asked is: "If the jury believe that there is not proof of 
 any delivery of the goods in question, by the plaintiff or his agent to 
 the deferidenls, and an acceptance by the defendants of said goods, 
 then the 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 
 had 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 Icinine of the undertaking of the defendants. 
 It cannot be questioned that common carriers are liable for refusing 
 to carry, when properly requested, as well as for negligent carry- 
 ing, or failure to carry, after the freights hive been delivered to 
 them; 2 Show. 328, Jackson vs. hodgcrs. Chief Justice Jef- 
 fries held, " that the action is maintainable as well as it is against 
 an inn-keeper for refusing a guesl, or a smith on the road who re- 
 fuses to shoe a horse, being tendered satisfaction. The same 
 opinion is held by Chief Justice Halt in Boson vs. Sandford and 
 others, 1 Show. 104. These opinions are sustained by various 
 decisions referred to in the cases cited. To insist that there 
 should be proof, delivery and acceptance, when the gist of the ac- 
 tion is an absolute refusal to receive and carry, appears to the
 
 172 REPORTS. 
 
 court to be entirely agamst the law and reason. The District 
 Court was correct in refusing the instruction. 
 
 Seventh error assigned: " The court erred in refusing to in- 
 struct on the third point submitted by defendants." The third 
 instruction asked is: " If the jury believe from the evidence, 
 the goods in question remained in possession of the agent of the 
 plaintiff, and never were in the possession of the defendants as 
 carriers, then the plaintiff cannot recover." It is so apparent that 
 it seems scarcely necessary ."or the court to remark, that the rea- 
 soning and authority which disposes of the second instruction, ap- 
 ply 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 in- 
 struct on the fourth point submitted by defendants." The fourth 
 instruction asked is: "If the jury believed from the evidence, 
 the 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 plain- 
 tiff show, that said lien for charges was previously discharged, and 
 cannot recover." This instruction also grows out of a misappre- 
 hension 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 been proper. Considering the 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 sup- 
 position of charges is against the evidence in the case." The 
 rule 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 the facts, that the 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
 
 REPORTS. 173 
 
 of the jury could have resulted. The District Court properly re- 
 fused 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 defend- 
 ants assumed to carry the goods in question fora 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 rccovei." The court refused to give the in- 
 struction, and referred to the evidence in the deposition. Tin's 
 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 ev- 
 idence, 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 con- 
 sider this ground of error disposed of, by our opinion on the first 
 instruction asked for by the defendants below, and will add noth- 
 ing further to what is there laid down. 
 
 The eleventh error assigned: " The court erred in refusing (o 
 instruct on the seventh point submitted by the defendants." The 
 sevenjh instruction asked is: " If the- jury believe from the evi- 
 dence that no freight boats passed up Fox River afier the plain- 
 tiff's goods were deposited in Biuce's warehouse and not in the 
 possession of the defendants, then the plaintiff cannot recovei." 
 Admit that the facts were as assumed in the instruction, they would 
 not amount to a defence, even in a case to which they might ap- 
 ply. That boats could not possibly pass up Fox River at the 
 time of the request made by the plaintiff, for causes entirely out 
 of the control of the defendants, would excuse them for refusing 
 to carry. The fact that they did not pass up, is a very different 
 thing, and more allied to the plaintiff'? cause of action, than to 
 the defence. The court properly refused the instruction. 
 
 The twelfth error assigned: " The court erred in refusing to 
 instruct on the eighth point submitted by defendants." The 
 eighth instruction asked is: " If the jury believe from the evi- 
 dence, that there was no special contract to carry the goods in
 
 174 REPORTS. 
 
 question, and no delivery oi the same to the defendants by the 
 plr.intiff, and that there was only a qualified promisa to carry the 
 same if (he d fendants were able to do so, thru the plaintiff can- 
 not recover on an alledged breach of contract imde to (he public." 
 There arc three distinct matters embraced in this instruction: 
 No special contract- nodclitery; and a qualified promise to car- 
 ry. The two former have been disposed of against the error as- 
 signed, 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 (he 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 in- 
 fringe the rule, in its most rigorous sense, that the court should 
 respond to the law, and die jury to the facts. 
 
 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, as the plaintiff has not al- 
 ledged in his declaration, any such contract with him." The 
 court refused so to instruct, rcmniking: "as the law,on the uno^erta- 
 king of the defendants as set forth in their advertisement, implies 
 a contract; and as the court supposes, from remarks made on the 
 deposition of Oansbcc, 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 depo- 
 sition 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 citinrfrorn the jury by instruction. The court 
 niay instruct the jury to disregard evidence or testimony, on the 
 ground of interest developed on the trial. The court properly re- 
 fused the instruction. 
 
 It is the rpmion of this court, that the judgment of the Dis- 
 trict Court of Dane county be affirmed with costs. 
 
 JACKSON and COLLINS, for plf'is in error. 
 
 DUNN and WHITON for deft in error.
 
 REPORTS. 175 
 
 BEN J A MIN FO W LER, p!J in f rror, ] 
 
 rs. > Error to Racine county. 
 
 JULIUS COLTON, dcpi in error, 
 
 1- 
 
 A NOTICE of special mnttcr tn be given in evidence, filed with the plea of 
 general is.sstie, must contain all the substantial matter of a special plea. In 
 actions upon contracts, il 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 
 be as precise and certain as a special plea of justification. 
 
 As (here is no form prescribed for a notice, its sufficiency must depend, 
 in some degree, upon the peculiar circumstances of each case. 
 
 Asa notice is not technically a part of the record, it is not proper to dis- 
 pose 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 ex- 
 clude the evidence offered, if the notice is insufficient. 
 
 The refusal of the court to allow a notice to be amended on the trial, is 
 not error; the statute of amendments is not obligatory on the courts, but 
 only gives ihcm the discretion to allow or disallow amendments to be made, 
 and the allowance or disallowance; of amendments, resiing in the discre- 
 tion of the court, is not the subject ol error. 
 
 An opinion of the court of a fact in ;he case, of the weight of tesiimony, 
 or the character of a witness, is not binding upon the jury, arid is not error. 
 
 Where each of the jurors sets down the amount of damages which he is 
 willing to allow the plaintiff, ami the jury divide the aggregate ot the sums 
 by 1:2, and agree upon the quotient as the amount of their verdict, it is not 
 such misconduct ?is wotdd cntiilo the defendant to a new trial, unless it is 
 shown that the jury acted corruptly, or that :hey previously bound them- 
 selves to adhere to the result. 
 
 Questions of law, arising upon motions for new trials, are legitimate sub- 
 jects of inquiry in the Supreme Court. 
 
 Where the rules of the District Court require all depositions intended to 
 bo read on the consideration of all motions to be taken on notice to the ad- 
 verse party, the court may reject ex pirte affidavits offered in support of a 
 motion for a 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 ngainst 
 Fowler in ihe Racine District Court. The declaration coniained 
 three counts: The first count alledged lhat the defendant had 
 charged the plaintiff with theft in stealing a bee hive and honey 
 belonging to one Lucas, and a bag of flour belonging to the de- 
 fendant: The second count was for charging the plaintiff with 
 theft in steuli-ng a hive of bees and honey of one D.micl 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 1 
 bee hive. The slanderous words were variously laid in the decla- 
 ration, to which the defendant pleaded the general issue, and gave
 
 176 REPORTS, 
 
 notice of special matter in justification. The notice will be found 
 in the opinion of the court. 
 
 Upon the trial, one Isaac Goodpaslure was sworn and examined 
 as a witness fur the plaintiff to prove the speaking of the slander- 
 ous words; he was afterwards called by the defendant, and testi- 
 fied that the plaintiff's character was bad. 
 
 After the plaintiff had closed his testimony, the defendant of- 
 fered 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 courtj to 
 both of which decisions the defendant excepled, 
 
 Among the instructions given by the court to jury, was the fol- 
 lowing: "In considering character, you will also consider the 
 character of the witnesses, for and against, and give tlieir testi- 
 mony 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 mutter: and 
 also, " that the jury erred in first marking damages for the plain- 
 tiff at surns 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 al- 
 low, and then added these 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 be 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 ihe motion.
 
 REPORTS. 177 
 
 On argument, the Court overruled the motion for a new trialj 
 and rendered judgment on the verdict. To reverse this judgment, 
 Fmvler sued out a writ of error, and has brought the cause into 
 this court. 
 
 WELLS, for pl'ffin error, declined opening the argument. 
 
 MAIISHALL M. STRONG, for deft in error: 
 
 The first question in order arises upon the decision of ihe court 
 as to the insufficiency of the nolice. 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 
 York upon this point. The first is in 13 John. Rep. 475; the se- 
 cond in 21) John. Rep. 740. In the first case it is laid down as> 
 the rule to lest the sufficiency of a notice, to consider, whether if 
 it were embodied in tho form of a special pica, it would be good 
 on general demurrer; in the second case, the rule is staled to be, 
 that if the nolice is so certain that the plaintiff is not taken by 
 surprise, it is sufficient. Chancellor Kent, in the latter case, re- 
 fers to 8 John. Rep. 457; but on examination of the case referred 
 to, it will be seen lhat it does sustain ihe latlcr 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 ap- 
 ply the test of either of the cases lo this notice, and it cannot be 
 sustained. 
 
 The first objection to the notice is, that it does not confess the 
 facts alledgcd 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 Cowen, 370. 
 Root vs. Kinz, 7 Cowen, 033. This notice docs not confess the 
 speaking of the slanderous words. 
 
 The second objection is, lhat it professes to answer the whole 
 declaration, and answers only a part of it. Divers thefts are al- 
 ledged in thu 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 Chitty, 1003. 
 2 Wendell, 541. Arehbol.l, 39. 2 Hawk. 324. 
 
 The third objection is, that the notice does not state the price or 
 vajue of tha property stolen. This ought to be stated to each ar- 
 ticle. 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 
 
 23
 
 178 REPORTS. 
 
 slander, must be as broad as the charges in the declaration; Star 1 
 kie on Slander, 339, 342. The 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 ihe 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 fur as the plaintiff is concern- 
 ed, 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 1o 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 deposi- 
 tions in support of a motion to be taken on notice to the adverse 
 party. The affidavit for a new trial was therefore properly reject- 
 ed. The practice of hearing witnesses on the stand in such a 
 case would be without precedent or authority. But if the de- 
 fendant 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 were 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
 
 REPORTS. 179 
 
 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 neces- 
 sary 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 pica, 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 or a 
 special plea is not required. See also, 11 John. Rep. 38. 20 
 John. Rep. 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 plea, 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 per- 
 emptory, 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 discretion- 
 ary power, then the judgment ought to be reversed. 
 
 We contend, that the District Court erred in instructing the 
 jury that the testimony of Goodpasture was entitled to very little 
 weight. Goodpasture was the plaintiff's witness, and by intro- 
 ducing 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 at- 
 tempt was made to do it, except by the court. This witness
 
 180 REPORTS. 
 
 proved for the plaintiff what was expected of him; he afterward*, 
 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 tho witnesses, when none of them 
 had been impeached. Chancier is always held to be good until it 
 is proven to bo bad. 5 Wendell, 195. This is a presumption of 
 law that is binding on both courts ;md juries. 
 
 The court below rejected the affidavit in support of the motion 
 fora new trial because it had been taken without notice. There 
 is no authority lhat can be found, that requires notice in such 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, 10G. 
 
 Opinion of the Court, by Judge MILLER: 
 
 This was an action of slander in the Disirict 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 fol- 
 lows: "The defendant will give in evidence, under the general 
 issue, on the trial of this cause, that the plaintiff, before the speak- 
 ing and publishing of the said several words by the said defendant, 
 of and concerning the snid plaintiff, as in the said several counts 
 in the said declaration mentioned, to wit: on or before the twen- 
 ty-fifth day of November, eighteen hundred and forty, to wit: at 
 Racine county aforesaid, did feloniously steal, take, and carry 
 away, certain goods and chattels, to wit: one hive of bees and the 
 honey, of one Daniel Lucas, and also one bug of flour, of him, the 
 said defendant, as spoken by ihe said defendant, and charged by 
 the said pliinliff in his said declaration, to wit: of the value of fifty 
 dollars, all of which was conlrary to the form of the statute in 
 such case made anc provided; wherefore the said defendant, if he 
 spoke the said slanderous words, in the said declaration mentioned, 
 was jusiified and had a right, afterwards, to wit: on the 25th day of 
 November, 1840,to wit: at Racine county, aforesaid, to speak and 
 publish the snid words of and concerning the said plaintiff, for the 
 cause aforesaid.' 1 
 
 After ihe plaintiff had closed his evidence on the trial, the de- 
 fendant 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 re- 
 jected. This is the first error assigned.
 
 REPORTS. 181 
 
 The notice is allowed to be filed with the general issue in case 
 of the defendant. He may or he may not rely upon it, and the 
 plaintiff is bound, notwithstanding the notice, to prove the facts sot 
 forth in the declaration; Vavghan rs. Hatens, 8 John, 109. Gen- 
 erally, a notice must contain, in substance, all the substantial mat- 
 ter of a special pica, but is not required to be in the form. In ac- 
 tions upon contract, a notice is sufficient if it contain such a state- 
 ment of special matter to be given in evidence at th<; trial ns miy 
 prevent the plaintiff from being taken by surprise. The statute 
 lias prescribed no form, and each case must, in some degree, de- 
 pend upon its peculiar circumstances, and upon the application of 
 sound discretion in the court at the trial; Chambc.rlin rs. Gorham, 
 20 John. 749. But the general rule undoubtedly is, that she no- 
 tice should contain all the facts necessary to sustain a plea against 
 a general demurrer, oral least a motion for a judgment nnn ob- 
 slante vcredicto; Bishop and Med bury vs. Earl, 17 Wendell, 310. 
 Although the notice is not required to be in the strict technical 
 form of a plea, it must comain all the facts necessary to be slated 
 in a special plea; S/ieppard 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 ena- 
 ble the plaintiff !o 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 the party must 
 aver the speaking of the words, and expressly and distinctly con- 
 fess the speaking. The plea or notice of the truth in justification 
 admits the malice, and puts the naked truth in issue; Root vs. 
 King,7Co\\en, 613; Matson vs. Beech, 5 Cowen, 499. And 
 notice of special matter in slander should be drawn and proven 
 with great particularity; Woodbeck vs. Keller, 6 Cowen, 1 18. For 
 charging the plaintiff with having sworn false, if the defendant in- 
 tends to justify under a notice subjoined to his plea, he must give 
 notice that he will prove, not only that the plaintiff swore false, but 
 that he swore wilfully and corruptly false; Mitchell vs. Bortlcn, 
 8 Wendell, 570. WKinlcy vs. Rob,2Q 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 sustain- 
 ed against a general demurrer, which is made the test by the Su-
 
 182 REPORTS. 
 
 preme Court of New York. It is confused, uncertain, and argu- 
 mentative. The plaintiff could not be expected to be prepared to 
 meet evidence in justification on this notice; and if the defend- 
 ant's offer had not been overruled, the 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 amend- 
 ed, 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 parti- 
 cular, 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 pending, 
 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 al- 
 lowance 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. Sheclyvs. Mandeville, 
 
 6 Cranch. 253. Walden vs. Craig, 9 Wheaton, 576. Ordro- 
 nealix vs. Prady, 6 Sergt. &. Rawle, 510. Clymer vs. Thomas, 
 
 7 Sergt. &, Rawle, 180. 
 
 The Court, in the charge to the jury, remarked, " that in con- 
 sidering the character of the 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 
 Isanc Goodpasture, when called upon this subject, will not be en- 
 titled 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 the jury. An opinion of a face, not given as binding 
 on the jury, is not error; Porter vs. Wllroy, 4 Sergt. & Rawle,
 
 REPORTS. 183 
 
 436. A nd 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 evi- 
 dence ; Dunlap vs. Patterson, 5 Cowen, 243. Ex parte Buily, 2 
 Cowcn, 479. And an opinion of the judge concerning facts, is 
 not the subject of error; Burdvs. Donsdale, 2 Bmney. 80; Long 
 vs. Ramsay, 1 S. &.. R. 72, The court has a right, and it is its 
 duty, to explain to the jury th&t they are the judges of the facts in 
 a case, and it is their province to give to the testimony of the wit- 
 nesses 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 confi- 
 dence 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 as- 
 certaining the amount of damages, marked the sums which they 
 would allow, and then added the sums so marked together, and di- 
 vided 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 faci,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 ar- 
 gument of the motion for a new trial, when the Court made this 
 entry: " The motion for a new trial being taken up for considera- 
 tion, this offer is overruled." The affidavit referred to did not ap- 
 pear 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 role, 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, parti- 
 cularly as it is not the practice. But even if the testimony had 
 been perfect, and the witness competent to prove the facts con- 
 tained in the offer, yet the court would have been right in over
 
 184 REPORTS. 
 
 ruling it. If the jury had made up their verdict in the manner 
 stated, there was no error. There is no allegation of corruption 
 in the jury. There is no averment that the jury previously bound 
 themselves to adhere to the resuli; but it is stuirrd, merely, that 
 they did put down the amount each would allow, and did ascer- 
 tain the quotient, which they agreed upon as their verdict. After 
 the members of the jury argue the question, and agree to find for 
 the phinlilf, 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 be given in damages. There will, necessa- 
 rily, arise a variety of opinions, and mutual concessions m7:st be 
 expected. A middle sum may in many cases be a ood rule; and 
 hough it is possible this mode may be sometimes abused by a de- 
 signing juryman fixing upon an extravagantly high or a very low 
 sum, yet, unless sucli abuse appears, the fraudulent design will 
 not be presumed. It is immaterial whether they come to their re- 
 sult upon paper, or in the course of conversation, so that they 
 agree, after the result is ascertained, to make that result their 
 verdict; Copper thicaite rs. Jones, 2 Dallas, 55. S/iobe vs. Btll, 
 1 Randolph, 30. Grinncll vs. Phclps, 1 Mass. Rep. 541. Dana 
 vs. Tucker. 4 John. 437. 
 
 The Supreme Court of the United States will not take cogni- 
 zance of questions of law which may arise in the circuit or dis- 
 trict courts upon motions fora new trial, as it is a motion addressed 
 10 their discretion; Woods vs. Young, 4 Cranch, 237. Hender- 
 son vs. Moore, 5 Cranch, 11. Bcirr rs. 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 alledged for a new trial in this case, al- 
 tho:h it was not presented to the District Court in such a man- 
 ner that ii might have been considered and passed upon there as 
 rccuired :>y the practice; Iloughton rs. 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. 
 
 WELLS, for pl'ff in error. 
 
 MAKSHALL M. SI-KONG, for deft in error.
 
 REPORTS. 185 
 
 GIDEON LOW, plaintiff in error, ) 
 
 vs. > Error to Dane county. 
 
 HENRY MERRILL, defendant in error, \ 
 
 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 holder 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 fora suspicious form or ob- 
 vious 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, un'iess to defeat a claim on the ground of fraud, or to es- 
 tablish usury, or to convict a party of a crime ; it cannot be received as ev- 
 idence 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 bo read to the jury. 
 
 Although the defendant docs 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 prom- 
 issory notes ; one for $1215 G8, 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 sup- 
 port of one of the counts of his declaration: 
 
 "$300. For value received, I promise to pay to Henry Mer- 
 rill, or order, the sum of three hundred dollars with interest, ninety 
 days after date. 
 
 (Signed) "G. LOW." 
 
 " Fort Winnebago, 
 
 [March 24, 1838.] 
 
 "April 14, 1838." 
 
 It appeared on the face of the note, that the original date, 
 
 24
 
 186 REPORTS. 
 
 March 24, 1838, had been marked with a pen so as lo be partly 
 obliterated, and immediately under it was written, " April 14, 
 1838. " Tlie defendant objected to the note as evidence, unless 
 the plaintiflf should first prove that the date was altered before it 
 was signed, or aftcrw.irds with the consent of 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 the 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 lias 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 its 
 date. It therefore became necessary for the plaintiff to prove 
 that the alteration had been made with the consent of the de- 
 fendant, before he could be allowed to read it in evidence. Chilly 
 on Bills, 212; Johnsonvs. TheDuke of Marlborough,3 Starkie T s 
 Rep. 313; 5 Bing. 183. 
 
 The alteration of a note in a material part, without the consent 
 of the maker, invalidates the note; Chilly on Bills, 204; 1 Chit- 
 ty on Plead. 213; Masters vs. Miller, 4 Tenn. Rt- p. 350; 2 H. 
 Bl. 141; 15 East. 29; 1 Taunt. 20; Bank of the United States, 
 vs. Russeh ct als.; 3 Yeats' Rep . 371 ; 3 Cranch, 37. 
 
 When a note has been thus altered in a material part, it is in- 
 admissible in evidence for any purpose whatever in favor of the 
 holder; Jardin ts Payne, 1 Barn. & Add. 017; 7 B. <Sc C., 416. 
 
 FIELD, for deft in error: 
 
 The defendant should have denied the execution of the note 
 under call), 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 lo deny the signalure, mere- 
 ly, 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 cstfac/urn to a speciality. The plea of non estfactum, does 
 not deny he signature only, but the execution of the instrument in 
 he form in which it ig sued on; and it is a good plea where the sig-
 
 REPORTS* 187 
 
 nature is genuine, if the instrument has been altered. The same 
 principles apply to promissory notes, where there execution is re- 
 quired to be denied under oath. 1 Blackford, 67; 3 do 57. 
 
 Our statute says that the instrument shall be proof that it was 
 so signed or executed, unless the signature or execution is denied 
 under oath. What does this provision mean? Why, that a note 
 purporting to have been executed by the defendants, shall be taken 
 to have been so executed; that is, executed precisely as it appears 
 upon its face to have been done, and as it is declared upon, unless 
 the defence is made in the mariner 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 deni- 
 al under oath. The defendant is not bound to disprove, by his 
 own oath ot 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 can- 
 not be shut out from him by a proper construction of the statute. 
 
 Opinion of the Court, by Judge MILLER: 
 
 This Ws an action of assumpsit in the District Court of Dane 
 county, on two promissory uotes, given by Gideon Low, the de- 
 fendant in said court, to Henry Merill, the plaintiff therein. The 
 defendant pleaded the 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 the word "March" 
 and the figures " 14" were partly obliterated or defaced, and un- 
 derneath the first date, "April 14, 1838," was written. The de- 
 fendant then objected to the reading of the note so altered, in ev- 
 idence, unless the plaintiff showed that the said alteration had 
 been made before tiie said note was signed and executed by the 
 defendant, or afterwards with his permission; which objection 
 was overruled by the court, and the nole allowed to be read in ev- 
 idence. 
 
 The defendant then offered to prove that the date of said note 
 had been altered by the plaintiff, after it had been signed and ex- 
 ecuted, 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.
 
 188 REPORTS. 
 
 The declaration charges the note to have been given on the 14th 
 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, 196. If the plaintiff had proven the note to have been 
 given on the 14th of March, it would certainly not be the identi- 
 cal 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 al- 
 teration of the date is an alteration of a material part, which vi- 
 tiates 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 II, 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 in- 
 sure the identity, and to prevent the substitution of one instru- 
 ment for another, is the foundation of the rule, which is neces- 
 sary to prevent all tampering with written instruments. 
 
 In Chitty on Bills, page 212, it is stated, " that with respeet 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." It 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 pro- 
 per 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. Blcckwcll,2 J. C. 198; Buller's N. P. 255; Marshall 
 vs. Gruglcr, 10 Scrgt. &. Rawle, 164; Lewis vs. Payne, 8 Cow- 
 en, 71; GibbsiSfKichvs. Osborne, 2 Wend. 555; Stephens vs. 
 Gorham, 7 Sergt. & Rawle, 505. And if a note has been alter- 
 ed in a material part, it is inadmissible in evidence for any avail- 
 able purpose whatever in favor of the holder, until the alteration
 
 REPORTS. 189 
 
 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. 
 
 It is provided in section 18 of the act concerning testimony and 
 depositions, on page 250 of the Statutes, that "every written in- 
 strument 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 affida- 
 vit: But this section shall not extend to instruments purporting 
 to be signed or executed by any person who shall have died pre- 
 vious to the requirement of such proof." This section merely 
 dispenses with proof of the signature or execution of the instru- 
 ment, unless the party shall deny the same under oath. It was 
 intended for fhe convenience and relief of the plaintiff. The de- 
 fendant did not deny the signature or execution by his oath or af- 
 fidavit, 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 ap- 
 pearance 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, be- 
 fore 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 rnnuired to do, there was error in 
 rejecting his offer. 
 
 Judgment reversed with costs. 
 
 Judge IRVIN dissented from the opinion of the court. 
 
 ABBOTT & WHITON, for plt'ff in error. 
 
 FIELD & BOTKIN, for def ? t in error.
 
 190 REPORTS, 
 
 GEORGE W. JONES, plaintljf in error, 1 
 
 rs. > Error to Grant county, 
 
 DANIEL WEBSTER, defendant in error, \ 
 
 AN affidavit for an attachment which states the nmonnt of the plaintiffs 
 demand to be "over nnd above the sum of fifty dollars," does not sufficient- 
 ly state the amount, to authorize the issuing of the writ. 
 
 Jones sued out a writ of attachment against Webster in the 
 Grant Dislrict Court. The affidavit was made by F. J. Dunn, 
 attorney for the plaintiff, and stated: "The he, affiant, is the at- 
 torney of George W.Jones, and affiant further says, that he verily 
 believes that Daniel Webster is indebted tosaid 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 contract in writing, s'yled in said contract, 'a memorandum 
 of agreement :' Affiant further says that ihe said Daniel Webster 
 is not a resident of Wisconsin Territory." Satisfaction was in- 
 dorsed 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 mo- 
 tion and dismissed the suit; to reverse which decision, Jones has 
 prosecuted this writ of error. 
 
 Dux.\, for pl'fT in error: 
 
 The court below quashed the writ and dismissed the case, be- 
 cause tlu; amount and nature of the plaintiff's demand were not 
 sufficiently stated in the affidavit. 
 
 The amount of the indebtedness cannot always be stated with- 
 out compromising the affunt on a question of veracity. Where 
 the damages are unliquidated, and cannot be liquidated except by 
 the verdictof a jury, the plaintiff cannot swear to any precise sum, 
 as the true amount of his just demand. In this case, the sum of 
 fifiy 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 con-
 
 REPORTS. 191 
 
 tract, styled f a memoiandum of agreement.' This is all that is 
 necessary to be stated. 
 
 COLLINS, for deft in error: 
 
 One of the principal reasons for quashing the writ is, that the 
 urnount of (he plaintiff's demand is not sufficiently stated in the 
 affidavit; and it is said, lhat 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 strict- 
 ly pursued, as this Court has repeatedly said it must, this aflTida* 
 vit cannot be sustained. A reason for requiring the amount to be 
 stated, is that the officer may not take more properly by the writ, 
 than will be sufficient to secure the plaintiff's demand. If the de- 
 mand is so uncertain or doubtful that it cannot be stated at all. the 
 plaintiff is not entitled to the writ. The statute was not intend- 
 ed for the recovery in this way, of damages that cc-iinol be liqui- 
 dated. 
 
 The affidavit as to the nature of the demand, is defective. 
 True, it slates that it arises upon a contract in wiitins, 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 na- 
 ture of the contract should be so far stated, that the court can see 
 that it may be the legal foundation of the demand. 
 
 The whole ground stated, except the non-residence of the de- 
 fendant, is stated as a mere matter of belief. This is not suffi- 
 cient under the statute, unless the facts and chcmnsiances upon 
 which the belief is founded, are also stated, and these facts and 
 circumstances must be such as to warrant the belief. 
 
 BURNETT, in continuation: 
 
 The statute requires that the facts and circumstances necessa- 
 ry 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 
 be made to appear affirmatively by proof, before the writ issues. 
 The first fact that must be thus made to appear is, that the de- 
 fendant is indebted to the plaintiff, then that the indebtedness 
 aiises 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 to argue
 
 1 92 REPORTS. 
 
 that point; but the fact of any indebtedness at all, is only stated 
 as a matter of belief of the affiant, and neither fact nor circum- 
 stance is given as the foundation of the belief. This is not suffi- 
 cient. This court said, in the case of Morrison vs. Ream, decid- 
 ed at the last terra, 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: "Tho 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 presump- 
 tive character, that uncontradicted or unexplained, would be suffi- 
 cient 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 be- 
 lief of a third person, who knows nothing of the facts and cir- 
 cumstances, 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 suffi- 
 cient that it is upon a contract in writing. Take the converse, 
 and suppose that it is stated to be upon a contract not in 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 wheth- 
 er the contract was in writing or not.
 
 REPORTS* 193 
 
 DUNN, in reply: 
 
 Thfi slating the demand lo be upon contract, and that it was an 
 instrument of writing styled a memorandum of agreement, is suf- 
 ficient as to [lie nature of the demand, and it was not necessary 
 to sot out tlie terms and conditions of the agreement. The stat- 
 ute does not require such particularity. 
 
 It is important to inquire, what are the facts and circumstances 
 necessary to be stated? There is a marked difference between 
 fact and circumstance; between positive knowledge and mere be- 
 lief, Whore a matter of fuel is positively known and positively 
 stated, there is no belief upon the subject, and neither belief or 
 the reason for it, is necessary to be stated. 
 
 Opinion of the Court, by Judge IKVIN: 
 
 This case came up on error to the District Court of Grant coun- 
 ty, and is a proceeding in attachment. 
 
 The writ of attachment was sued out on the affidavit of Fran- 
 cis J.Dunn in these words: " That he, affiant is the attorney of 
 George VV. Jones, and affiant further says, that he verily believes 
 that Daniel Webster is indebted to said George W.Jones in a sura 
 of money over and above the sum of fifty dollars lawful money, and 
 thafsaid indebtedness arises out of and is founded upon contract 
 in writing, styled in said contract, a memorandum of agreement; 
 affi.iht further says that the said Daniel Webster is not a resident 
 of Wisconsin Territory." On this affidavit, the Jtidge of thedis- 
 trict indorsed his satisfaction of the truth of the facts therein sla- 
 ted. 
 
 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 reason?, viz: " 1. Because of insuffi- 
 ciency of the affidavit: 1. In that said affidavit was not made by 
 plaintiff, or a credible uitness, 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 
 the 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 the 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, 
 
 25
 
 194 REPORTS. 
 
 assigns the following causes, viz: " 1. The court erred insustdiny 
 ing the second and third reasons of (he defendant in his moiion 
 to quash the writ and dismiss ilie proceedings licretn. 2. Thd 
 court erred in quashing the writ and dismissing the procceeings 
 herein." 
 
 The decision of llie court below upon the motion was generaf, 
 nhd so farns 'he record show?, whilst in llie assignment of errors, 
 it is noticed as having been given upon llio second and lliiid rea* 
 son assigned for quashing the Wril, which include this portion of 
 the Affidavit. "And affiint further says that ho verily believes 
 thai Daniel Webster is indebted to said George W. Jones in a sum 
 of money over and above the sum of fifty dollar?, hwful money, 
 and lint said indebtedness arises out of and is founded upon con- 
 tract in writing, styled in the said contract) a memorandum of 
 agreement." 
 
 The law provides that " to authorize the issuing nn attachment 
 in any cnsc, ihe defendant must be indebted to the plaintiff in & 
 cause of action arising out of, founded upon, or sounding in con- 
 trnc 1 , or upon a judgment or decree of some court of law or chan- 
 cery; 11 (2d section of the act of 1812;) and by the 3d section Ft 
 further provides, that " Uie facts necessary to entitle a party to a 
 \vtit of attachment, shall be proven to the satisfaction of a Dis- 
 trict Judge or of a Supreme Court Commissioner of the proper 
 county, by the rffidavil of the plaintiff or some credible witness, 
 Slating therein the nature and amount of ihe plainlitPs demand, 
 and the c'rcimistr.nccs upon \\hicli the belief of such facts is 
 founded, and such officer shall indorse the far. I of his satisfaction 
 on the affidavit, which shall be filed with the clerk of the courl 
 before the wiit 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 re- 
 lates to ihe nature and amount of the demand, and as ibis case was 
 ubmi(ted to a court consisting of two of the three members, and 
 ns those differ as lo the sufficiency of the statement in relation lo 
 the nature of the demand, the statute will be considered as un- 
 conslrued iherein. but in relation to the amount, I here is no such 
 division of opinion. The law requires that the nature and amount 
 of the demand shall be stated. Is the amount stated herein? 
 The koguago ia this, as used by the affiint: " That nu verily be-
 
 REPORTS, 195 
 
 lieveg thot Daniel Webster is indebted (o said George W. Jones 
 5n a sum of money over and above the sum of fifty dollars/' From 
 an examination of the language used, it will be readily perceived 
 that no sum is slated at nil. It is (HIP, that the .'ilTnnt says ho 
 verily believes that I!:R d<;f<-ndant is indebted in a sum of money 
 over and above fifty doll ir?; but at what point, in the vast range 
 of numbers, the mind is left wholly to t!ie resources of the imag- 
 ination. Ii would he unwise and unsafe, and wholly at war with 
 the practice properly established in the harsh remedy of attach- 
 ment, to regard such a statement of the amount of the demand. 
 ns sufficient. The District Court therefore did right iu sustaining 
 the motion to quash, particularly when it is remembered, that this 
 uncertain sum is slated under the mere belief of the ufiiant.- 
 The statement of non-residence is positive and unequivocal by a 
 credible witness, and not liable to the objection urged against it. 
 
 Believing, as lliis court does, thai the statement of vhe amount 
 was wholly insufficient, we affirm the judgment of the D,3trict 
 Court with costs. 
 
 DUNN, for pit 'IT in error. 
 
 COLLINS and BUUXETT, for deft in error. 
 
 WILLIAM B. SLAUGHTER.prjfm error,) 
 
 rs. V Error to Iwa county. 
 
 JOHN BEVANS, def>l in error. } 
 
 THE return of n writ is presumed to hnrc been mndoon. the return flay, 
 unless the date nf the return specially and pnsiiivrly appear* by indorse- 
 ment, nn the writ i'sclf or an entry ofrecord, showing a different lime when 
 the return \\ MS -ion 'illv riniln. 
 
 V iiHiidiint'nr, the first default is so much a matter of 
 t without p",evi"ii3 piihliciitiuii or befuri.' j roof of j.ubii- 
 i i r.Mi 1 . 
 writ of iitlaclimcnt cannot hoaniendei] under aay cir- 
 
 In p'/ocecdiiiEs 
 form, ilvir to circr 
 cation is filed, is n 
 
 An iilliihvii fur ; 
 cninstaur'-s. 
 
 '1'he ii d )rsernrnl of s-itisfnr'iorr on nn affidavit for n w-rit ofatf ifhTirvrkt, 
 IB nil indispens iblr nre-rcrjiii^itc to ilie issuing of the wvir, and where a 
 writ has been issued wiihont such indorsement. tli nfficcr cnniKii he per 
 nutted to come into court, pending the suit, and iudorv hu KXtiaTaetioa.
 
 196 JtBPORTS. 
 
 The law does not confine the plaintiff in an attachment, in suing out his 
 writ, to the county where the defendant resides or where he is found ; the 
 affidavit that the defendant lias property in the county where the writ is- 
 sues, is a sufficient authority for commencing in such county, if ihe point 
 were doubtful. 
 
 Wlipre ihc plaintiff had obtained a decree in chancery for the balance 
 due him upon the corning in of 'he master's report on fortclosins; a mort- 
 gage, such dccrer may he pleaded in bar as a fovmer recovery, in an action 
 ai law between the same parties for the recovery of the same demands. 
 
 Bevans sued out a writ of attachment against Slaughter in the 
 Iowa District CoUrt,ort the 10th September, 1839. On the same 
 d-iy, on different affidavits, other writs were issued to ihc counties 
 of Brown, Dane, Grant, Milwaukee, and Racine. There was no 
 indorsement of satisfaction on the affidavit for llio writ, by the of- 
 ficer before whom it was mnde. The sheriff of Iowa county re- 
 turned the writ direcicd to him nnllabona, and served personally, 
 but how or when the personal service was mnde, does not appear 
 by the return. The writs to Grant and Racine appear not to have 
 been returned at all, and levies were made upon properly in 
 Brown, Dane, and Milwaukee. At the April term, 1840, the 
 first dei'jHilt of the defendant was entered; and at (lie September 
 term, 1840, the plaintiff asked leave of the court for the officer be- 
 fore whom the ufiiJavit was made to come in and indorse his sat- 
 isfaction, which was objected to by the defendant, but the court 
 overruled the objection, and grat.ted the leave, and thereupon the 
 officer indorsed upon the affidavit that he was satisfied, at the 
 time when it was made, of the truth of the facts therein stated, to 
 which the defendant excepted. At the same term, and previous 
 to the indorsement of satisfaction, the second default of the de- 
 fendant was entered, and the plaintiff afterwards filed his declara- 
 tion in nss-urnpsit on the 21st September, and on his motion the de- 
 fendant was ruled to plead to the said declaration by the next 
 morning, and on the same day proof of the publication of notice 
 of the writs to Grant, Brown, Milwaukee, and D.me, was filed for 
 the first time, but no publication appears to have been made of 
 the writs issued to Iowa and Racine; afterwards, at thesime term, 
 the defendant, in response to the rule to plead, made a motion to 
 dismiss the proceedings, on the ground that at the commencement 
 of the suit he resided, and still continued to reside, in the county 
 of Dane, which fact was made to appear to the satisfaction of the 
 court. 
 
 At the April term, 1840, the motion to dismiss was overruled
 
 REPORTS. 197 
 
 by the court, to which the defendant excepted; whereupon, the 
 defendant filed a plea in abatement, traversing the truth of ihe af- 
 fidavit, upon which an issue was made nnd a jury empinnelled, 
 who returned a verdict sustaining the affidavit; and afterwards, at 
 the same term, the plaintiff filed a second di.-chralion in assump- 
 sit, nnd afterwards, on the 2i)i|j day of Apiil, the defendant filed 
 his plea ofgor.cral issue, and algn the following special plea in bar: 
 
 "And for further plea in this behalf, the said defendant, by leave 
 of the court here had, s.iys: that heretofore, to wit : in the Septem- 
 ber term, in the year 1840, in the said District Court in the said 
 county of Iowa, and after the commencement of this suit, the said 
 plaintiff, by the consideration, judgment and decree of the said 
 Court, recovered, in a certain suit in chancery ihcn and there de- 
 cided in the said D:strict Court, in which the said John Bevans 
 was complainant, and said William B. Slaughter was defendant, 
 against the said defendant, the sum of five thousand three hundred 
 
 aud eigh'y-seven dollars and cents, on occasion of the not 
 
 performing of the same identical promises and undertakings in the 
 said declaration mentioned, together with his costs by him about 
 his suit in that behalf expended, whereof the said defendant was 
 convicted, as by the record of the proceedings thereof, still remain- 
 ing in the said District Court, at the county aforesaid, more fully 
 and at large appears, which said judgment and decree still remains 
 in full force, nnd not reversed, satisfied or made void, and this he is 
 ready to verify, wherefore he prays juJgtnent," &/c. 
 
 The plaintiff filed a joinder in issue to the plea of general is- 
 sue, and a general demurrer to the special plea. 
 
 Al the September term, 1841, the plainiiQ" entered a nolle pro- 
 sequi upon his second declaration, and the record does not show 
 to which declaration the pleas were pleaded, but they were both 
 for Die same cause of action; and at the same term the court sus- 
 tained the general demurrer to the defendant's special plea in 
 bar. 
 
 Previous (o this, Bevans had filed a bill in chancery against 
 Slaughter in the Iowa District Court to foreclose a mortgage that 
 had been given to secure the payment of the same promissory 
 notes thit \vnre declared upon ia this case. Upon the corning in 
 of the master's report of the sale of the mortgaged premises, the 
 court decreed against Slaughter the payment of the balance due 
 of the mortgage debt, according to the provisions of the statute-
 
 1 93 REPORTS. 
 
 Pending this suit, Iho complainant made a motion in the chancery 
 cause for leave to proceed in his action at law, which was granted 
 by the court. 
 
 This c i use was tried at tho September term, 1841, and upon 
 the trial, the j iry returned a verdict in favor of tho pliiiitiff fur 
 j30S 41). upon wbicli tho court rendered judgment. Slmghter 
 sued out a writ of error, and assigned iho following errors in iho 
 record of iho proceedings of the court below. 
 
 1. Tho court erred in entering the. first default of tbo defend- 
 ant before proof of publication filed. 
 
 2. The court erred in permitting tbo afildivit to be amended. 
 
 3. The court erred in rendering final judgment before two de- 
 faults of ihe defendant had been entered. 
 
 4. The court erred in overruling the motion to dismiss. 
 
 5. The court erred in sustaining tho demurrer to the second 
 plea of (lie defendant. 
 
 G. The court erred in rendering final judgment in the case. 
 
 MOSES M STRONG, for pl'rT in error: 
 
 The errors assigned in the proceedings, prior to the filing of tho 
 plea, may be considered as technical. But the proceeding being 
 by attachment, the pluintiiF must be held to the strictest comply 
 ance with the law, in every particular. The defiult taken at tho 
 April term, 18.0, was erroneous, because then no proof of publi- 
 cation had been filed. The only question is, whether filing tho 
 proof at the September term cures this defect? We say it did not, 
 because a man cannot, regularly, be defaulted until IK; has been 
 legally notified, and proof of that fact is made to the court. Again, 
 the proof that was filed did not relate to the original writ, and of 
 course it was not sufficient to support the proceedings on the ori- 
 ginal writ. If the default was illegally entered, it was error in the 
 court to rule tho defendant to plead. 
 
 At the lime of thn first default, satisfaction was not indorsed on 
 the affid ivil, and the proceedings were at tint time irregular, if 
 not void. To cure this defect, the court permitted th-o ollicer to 
 come in at the September term, and indorse- his satisfaction. Wo 
 contend that the court had no ri^ht to allow I he indorsement to bo 
 made at that time; but if it had, Ihe previous proceedings wero 
 irregular, and on that account alone, the judgment ought to bo 
 reversed. 
 
 Tho next point is of more importance. The court below ought
 
 REPORTS. 199 
 
 to have sustained the motion to dismiss mncic nt the September 
 term, 1840. Tlic writ to Iowa county was returned nvlla bona t 
 and of ils issuing (hero has never lireri any notice published. Tlio 
 doferidiint resided in i!ie county of Dane. The general hw in re- 
 lation lo civil proceedings docs not apply to cases of this kind. 
 This is n proceeding in rcm^ and cannot be had in a county where 
 the (!(('( ndani does ni.t reside, and wlierc lie h ;s no properly. 
 
 The defendant's plea of former recovery, if true, was certainly a 
 bar to the action. It is not denied that former recovery is a good 
 plea in har. This plea is in technical form, and no objection was 
 taken to it on th.it account. Then, hy all rules of pleading, iho 
 plaintiff should have replied and rnr.dc an issue of fact upon it; 
 but he chose to demur, arid make an issue of law, and the court, 
 upon this issue, decided against the defendant. The court can- 
 noi travel out of ihc* record r.nd consider facts, in disposing of a 
 demurrer, and unless this plea is defeated by facts, I cannot ima- 
 gine upon what oilier ground it can be disposed of against tho 
 defendant. 
 
 JACKSOX, for defendant in error: 
 
 Tire first objections taken, are ng-iinst the regularity of the de- 
 faults. The statute does not require that proof of the publication 
 of notice should he filed before taking a default. It is immate- 
 rial, so that publication is duly made, at what time tl.e proof of it 
 is filed. The record shows, that although the proof was not filed 
 at the time, that the publication was made, and tint is all tint is 
 required. But if the def.iult was irregiilaily taken, the defendant 
 should have come into court and moved lo set it aside. Tho de- 
 fect, if. any such existed, was cured by the plea; 1 Cowcn's Trea- 
 tise, 490,524; arid the defendant is estopped by his plea from al- 
 ledging any thing against the regnhiity of the previous proceed- 
 incp. The defects are also cured by verdict. Slat. Wis. 259. 
 
 o J 
 
 The indorsement of satisfaction was made, nunc pro func, nnd 
 does not appear lo be objectionable. It was certainly allowable 
 under the statute of amendments. 
 
 The plaintiff" below certainly had the right to bring his suit in 
 Iowa county if he chose to do so. The statute authorizes suits 
 by attachment to be commenced in any county, and writs to bo 
 issued to any other county in the Terriloiy where there is prop- 
 erty. The plaintiffs affidavit stated that the defendant had 
 property in Iowa county, and although the sheriff did not find it,
 
 200 REPORTS. 
 
 the defendant himself was found, and personally ser?ed, and tho 
 court decided correctly in overruling the motion to dismiss. 
 
 The last point is on the decision <if the court on the demurrer 
 to the special plen. This suit, and he ch;mcery suit, were used 
 concurrently lo collect a debt secured by mortgage, and for which 
 tho mortgaged premises were wholly inadequate. The statute 
 authorizes the plaintiff to pursue concurrent remedies in such case; 
 Stal. Wis. 293. In the chancery c.iuse, the complainant had ob- 
 tained leave of the chancellor to proceed in this action at law, both 
 cases being in the same court, and pending at the sime time. 
 The court isalw;i)s bound to notice its own record?, and to know 
 what has been done in the court. The plea was against the leave 
 obtained in chancery, and might, have been rejected on motion. 
 The decision on the demurrer was proper in the case. 
 
 DUNN, in continuation: 
 
 If there were any irregularities in the proceedings, they were 
 cared by the plea and verdict; the defendant not having taken ad- 
 vantage of them at the proper time. Questions as to the publi- 
 cation of notice, are questions of fact, and where they are dis- 
 puted, (hoy must be tried by a jury; they are not questions of 
 law fur the decision of the court. 
 
 There is no question of the propriety of the decision in allow- 
 ing ihe officer to indorse his satisfaction upon the affidavit; that 
 is, that he was satisfied at the lime when it was mude. It did not 
 alter the fact, hut furnished ihe court with the evidence of the 
 fact. TJie officer had enough before him to satisfy him. Tho 
 record shows the best evidence that the facts existed lo entitle 
 the plaintiff to the writ. Tim defendant traversed ihe affidavit by 
 a p!ea in abatement, and the jury found the affidavit to be true. 
 The statute of amendments fully authorized the discretion which 
 the District Court exercised in allowing the amendment to be 
 made. 
 
 The decision of the court on the demurrer, is the only doubtful 
 point in the case; and when the record is examined, there will be 
 enough found to sustain that decision. The plea itself is bad, 
 because it sets up a judgment of former recovery in a suit in 
 chancery. A judgment cannot be entered in a chancery cause, 
 and such a plea cannot be sustained as a good plea of former re- 
 covery. Beside, the plea was against a former order of the same 
 court, in a suit in chancery between the same parties. The re*
 
 201 
 
 cords of the court are matters of law, arid the court is bound to 
 take notice of them, and may do so on demurrer. 
 
 BURNETT, in reply: 
 
 There are four principal points for the plaintiff in error, that 
 will embrace the whole case. 
 
 First: The objections to the defaults taken, the service of pro- 
 cess, and the publication of notice. 
 
 Second: The permission of the court to enter the indorsement 
 of satisfaction on the affidavit. 
 
 Third: The overruling of the motion to dismiss. 
 
 Fourth: The decision on the demurrer to the special plea in 
 bar. 
 
 First: This is a proceeding under the attachment law, as it 
 stood in 1839. Under that law, the only way of bringing the de- 
 fendant into court, was by the levy of the writ and publication of 
 notice. The writ operated on the property alone, and there was 
 no such thing as personal service. Publication of notice was made 
 to take the place of a summons. If this has not been duly made, 
 the writ shall be quashed j there is no alternative, for so says the 
 law. Publication, then, is an affirmative matter which the plain- 
 tiff must make appear, and if he fails to do so, the court must act 
 upon the case. If the defendants is sued by summons, the court 
 can take no action in the case until the sheriff retuins the process 
 served; and in attachment, publication of notice standing in the 
 place of the service of a summons, the court cannot regu- 
 larly default the defendant until it is proven to have been duly 
 made. In this case, there never has been such a publication as 
 the law requires; there has been none of the original writ, the 
 basis of all the subsequent proceedings. The proceedings being 
 irregular in this particular, the judgment ought to be reversed. 
 But it is said that we have waived all these defects by pleading to 
 the declaration,' and the court has been referred to the law as 
 laid down in Cowen's Treatise. Counsel seem to mistake the 
 law and ils application. . In the same authority it is stated, imme- 
 diately following what has been read to the court, that where the 
 defendant appears and makes a motion in the cause, which is 
 overruled, and afterwards pleads, the plea does not admit the re- 
 gularity of the proceedings. This is our case. We made a mo- 
 lion to dismiss, which was overruled, and had to plead in answer 
 to a rule of the court, and the plea admits nothing. 
 
 26
 
 202 REPORTS. 
 
 Second : The court below ought not, as we contend, to have 
 allowed the officer to indorse his satisfaction on the writ, pending 
 the proceedings. This court had decided at the August term, 
 1.840, in the case of Mayhew <$ Dudley vs. Mayhew, that the sat- 
 isfaction of the officer is an indispensable pre-requisite to the is- 
 suing of the writ, and this can regularly appear in no other way 
 than by his own indorsement of the fact. This, then, we take to 
 be the established law; and that the clerk had no authority to is- 
 sue the writ until the proper affidavit, with the requisite indorse- 
 ment, was filed with him; and that a writ issued without this au- 
 thority was void in its inception. If the writ was issued without 
 authority of law, it was not in the power of the court to correct it. 
 The court cannot, by permitting officers to come in, pending the 
 suit, and perform acls which the law says are pre-requisite to the 
 issuing of the writ, give those acts a relation back to the com- 
 mencement to sustain a writ irregularly issued. The plaintiff 
 must make his case perfect in the beginning, and keep it so in 
 all its stages; and if it is wrong in the commencement, no subse- 
 quent act of the officers or of the court, can make it right. 
 
 Third: The court below ought to have sustained the motion 
 to dismiss. In all other proceedings at law, the statute requires 
 that the suit shall be brought in the county where the defendant 
 resides, or where he may be found. Reason and analogy would 
 say, that a suit by attachment should be commenced either in the 
 county where the defendant resides, or where his property may 
 be found. We admit that a person may be sued by attachment 
 in any county where he has property, because it is through his 
 property that he is compelled to appear; but we deny that it may 
 done in a county where he does not reside, and where the sheriff 
 can find no property to attach. If such be the law, it may be used 
 for purposes of the greatest injustice and oppression. But if this 
 ground was not sufficient, and the record presents other grounds 
 which ought to have sustained the motion, they are proper subjects 
 for the consideration of this court. This court said, in the case 
 of Rowenvs. Taylor, decided at the last term, that although a 
 motion docs not point out particular irregularities, yet the court 
 may notice defects apparent on the record; and that a judgment 
 may be arrested for an objection on the face of the record, although 
 not assigned at the time of making the motion; and the court in 
 that case, arrested the judgment for apparent defects, although
 
 REPORTS. 203 
 
 (he particular reasons assigned by the defendant below, were of 
 matters in abatement. This I understand to be the law, and that 
 a motion to dismiss a suit, embraces every thing that ought to 
 dismiss it, and that appears of record. The court will consider 
 in this case, whether at the time of making the motion, there 
 were any grounds presented in the record, which would require 
 that the suit should be dismissed, and if so, the judgment must 
 be reversed. 
 
 Fourlh: The decision of the court below on the demurrer, 
 seems to me to be conclusive of the case in this court. It is not 
 denied that a former recovery is a good plea in bar as a general 
 principle. No objections to the form of the plea have been taken. 
 Two grounds have been assumed here in support of the demurrer; 
 one is, that a court of chancery cannot render a judgment, and 
 that a recovery in chancery cannot be pleaded in bar in an action 
 at law; the other is, that the statute authorizes proceedings in 
 chancery and at law for the recovery of debts secured by mortgage, 
 as concurrent remedies, and that in the chancery suit for fore- 
 closure, the plaintiff below had obtained leave to proceed at law 
 in this suit. On the first ground, it is sufficient to remark, that 
 by the law, Stat. VVis. 290, sec. 66; 2D2, sec. 82, a decree in 
 chancery has the same force and effect as a judgment at law; and 
 upon the coming in of the master's report on the foreclosure of a 
 mortgage, the court may decree the balance of the money due, 
 against the defendant, and issue execution thereon, as in other 
 cases. The recovery, in such case, is full and complete, and exe- 
 cution thereon is the end of the law. 
 
 As to the second ground: it is said that the statute authorizes 
 concurrent proceedings at law and in chancery, to recover the 
 same debt. This is a mistaken idea of the law. The statute was 
 evidently intended to, and actually does, restrict the powers and 
 limit the proceedings of mortgagees. At common law, the mort- 
 gagee had the right to pursue his remedies at law and in chancery 
 concurrently, and no leave of the chancellor was necessary; our 
 statute provides, that after a bill is filed to foreclose, no proceed' 
 ings shall be had at law to recover the mortgage debt, unless au- 
 thorized by the court of chancery; Stat. VVis. 203, sec. 3. We 
 contend that the authority is necessary to be obtained to autho- 
 rize the very commencement of the proceedings at law. If the 
 complainant wishes so to proceed, after filing his bill to forclose,
 
 204 REPORTS. 
 
 he should file his petition, or supplemental bill, setting up the ne-. 
 cessity and propriety of so proceeding, and obtain the authority be- 
 fore he commences at law. It cannot be the sound construction of 
 the statute, that a party mny file his bill to foreclose, afterwards com- 
 mence a suit at law to recover die same debt in violation of the 
 provisions of the statute, prosecute both to near their termination, 
 and then obtain an cxpartc order in the chancery suit authorizing 
 him to proceed at law, and that this order will relate back to the 
 commencement of the action, and legalize the whole proceeding. 
 But all this is not very material to the question. The decree ren^ 
 dered at the coming in of the masters report, for the balance of 
 the money due on the mortgage, has all the properties, force, and 
 effect of a judgment at law, to be carried into effect by execution, 
 as in other cases, and of course must be a bar to any subsequent 
 proceedings to recover the same debt. If this plea in bar can be 
 obviated by the previous order of the chancellor, how is the plain- 
 tiff to avail himself of it? By demurrer? Certainly not; for on 
 demurrer, the court cannot notice any thing out of the record of 
 the particular case in applying the law to it. Counsel say that 
 the court is bound to notice its own records. This is true in all 
 cases where they can be legally brought to notice, but the court 
 cannot look into the records of other cases for fads to sustain a 
 demurrer; for this would be making an issue of fact instead of 
 law, and upon such an anamolous issue, the court would have to 
 try the fact. The law is, and was so decided here in the case of 
 Hancy vs. Clark, a few days since, that this court cannot notice 
 any thing that is not legitimately a part of (he record of the par- 
 ticular case under consideration; and this court cannot here take 
 any notice of the scrap from the record of the chancery suit which 
 the clerk has certified and sent up. If the plea in bar is to be 
 avoided by the leave obtained in chancery, the matter should 
 have been replied, setting up the authority, which would have 
 brought the sufficiency of the order in issue. The plaintiff be- 
 low, having failed to do this, and relied upon his demurrer, and 
 that having been sustained by the court, the judgment must for 
 this cause, if for no other, be reversed. 
 
 Opinion of the Court, by Judge MILLER: 
 
 This suit was commenced by attachment in the District Court 
 of Iowa county, by John Bevans against William B. Slaughter. 
 It was predicated on an affidavit of plaintiff, charging the defend-
 
 REPORTS. 205 
 
 ant with fraudulently disposing of his property, so as to hinder and 
 delay his creditor. The affidavit was made before a justice of the 
 peace, die 10th day of September, 1839, (before the act in the 
 Kevised Statutes was amended,) and the justice had neglected 
 to indorse his satisfaction thereon previous to the issuing of tho 
 writ. At the September term of said District Court for the year 
 1810, the court allowed ihe said justice to appear in court and 
 make the necessary indorsement of satisfaction on said affidavit, 
 nunc pro tune, the defendant opposing the same. In pursuance 
 of the tenth section of said act, additional writs to the writ issued 
 to the sheriff of Iowa county were issued on the same day to the 
 sheriffs of Brown, Grant, Milwaukee, Dane, and Racine counties, 
 and on which property was attached in said counties. It appeared 
 by the motion filed to dismiss the writ and proceedings, that the 
 defendant before and at the time of the commencement of tho 
 suit resided in Dane county. The court overruled trie motion to 
 dismiss the writ and proceedings, and the cause proceeded to 
 final judgment. 
 
 The first error assigned for our consideration is as follows: 
 
 The court erred in recording the first default of the defendant 
 before proof of publication filed. 
 
 The third section of the act concerning attachments, directs 
 the clerk who issued the writ, upon the return of the writ, to 
 make out an advertisement, which is to be published within thirty 
 days. When these writs were returned, does not appear. The 
 return of a writ is presumed to have been on the return day men- 
 tioned therein, unless the date of the return specially and posi- 
 tively appears, by indorsement on the writ itself, or entry of re- 
 cord. By the seventh section, the first default of the defendant is 
 to be entered at the first or return term, which could not be done 
 if the writ had not been returned in time for the publication, which 
 may not have been issued in time, or if so, may be retained in the 
 sheriff's hands until the return day. The first default is so much 
 a matter of form, that the entry tiiercof without previous publica- 
 tion, or proof of the same, is not error. 
 
 The second error assigned is, that the court erred in permitting 
 the affidavit to be amended. There was no amendment made of 
 the affidavit, nor could there be any, for an affidavit of this kind is 
 not amendable under any circumstances. The error assigned, 
 from the argument, we are to infer, has a rcfeiencc to the pernws-
 
 206 REPORTS. 
 
 sion to the justice to indorse his satisfaction. This court decided 
 at the term of 1840, in the case of Mayhew <$f Dudley vs. May- 
 hew, that the satisfaction of the officer is an indispensable pre-re- 
 quisite; and that can regularly appear in no other way than his 
 own indorsement of the fact; and that the clerk could not prop- 
 erly and legally issue the writ without such evidence of satisfac- 
 tion. The same principle was reiterated at the term of 1841, in 
 the case of Morrison vs. Fake. And the legislature was so well 
 satisfied of the propriety of this rule, that in the act to amend the 
 act concerning the writ of attachment, approved February ICth, 
 1842, it was incorporated therein. From this it will appear that 
 the indorsement of the justice should not have been allowed, and 
 that the District Court erred therein. 
 
 The third error assigned is, that the court erred in rendering 
 final judgment before two defaults of the defendant had been 
 entered. 
 
 At the September term, 1840, which was the second term, the 
 defendant appeared and filed a motion to dismiss, which, at the 
 April term, 1841, was overruled. At this term, the defendant 
 filed his plea in abatement, which was disposed of against him, 
 when the defendant filed his plea of general issue, and a plea of 
 former recovery. At the September term following, the cause, 
 being at issue, was tried by a jury. This statement is an answer 
 to the error assigned. The defendant's second default could not 
 have been legally entered in the face of his plea. 
 
 The fourth error assigned: That the court erred in overruling 
 the motion to dismiss the attachment. The motion was made at 
 the September term, 1840, on the ground that the defendant wns, 
 at the time of the commencement of the suit, and continued to be, 
 a resident of Dane county, and not of the county of Jowa. The 
 process of attachment is, in the case of a non-resident, a means of 
 compelling a party to appear through his property. It is not regu- 
 lated by the ger.erallaw respecting proceedings in courts, but it 
 is regulated exclusively by the act upon the subject of attach- 
 ments. That act does not confine the plaintiff, in his suit, to the 
 county where the defendant resides or is found. The original affi- 
 davit filed by the plaintiff set forth that the defendant had property 
 in the county of Iowa, which was enough to authorize the writ 
 in that county, if the point were doubtful. In this the court did 
 not err.
 
 REPORTS. 207 
 
 The fifth error assigned is: "That the court erred in sustaining 
 the plaintiff's demurrer to the second plea of the defendant." 
 The said second plea was a plea of former recovery, good on its 
 face, to which the plainlifl' demurred generally. This court is 
 unanimously of opinion that there was error in this decision; and 
 as error is so apparent, it is not necessary to refer to authority 
 upon (he subject. 
 
 These embrace all the errors material on the record. It is 
 therefore considered and adjudged, that the judgment of the Dis- 
 trict Court of Iowa county be reversed, with directions to said 
 court to set aside the writ of attachment and all subsequent pro- 
 ceedings. 
 
 MOSES M. STKONG and BURNETT, for pl'ff in error. 
 
 JACKSON and DUNN, for deft in error. 
 
 SATTERLEE CLARK and ) 
 
 HENRY JONES, pt-ffi in error, t ^ 
 
 vs. I 
 
 FRANCIS GILBERT, deft in error,) 
 
 AN affidavit for an attachment under the law of 1839, charging fraud, 
 a* the affiant verily believes, with an indorsement of the officer thereon that 
 he is satisfied that the matters therein set forth, are true, is sufficient. 
 
 If the affidavit is in proper form under the statute, the certificate of the 
 officer that he is satisfied, is all that is required. 
 
 A. plea in abatement of a misnosmer of the defendant for want of the ad- 
 dition of "junior" to his name, may be regarded as a sham plea and treat- 
 ed as a nullity. 
 
 Gilbert sued out a writ of attachment against Clark & Jones 
 in the Dane District Court, on the 17th January, 1842, upon an 
 affidavit and indorsement of satisfaction thereon, which are em- 
 bodied in the opinion of ihe court. 
 
 At the October term, A. D. 1842, the plaintiff filed a declara- 
 tion in assumpsil,on a promissory note and an account; and the 
 defendants moved the court to quash the writ and dismiss the 
 proceedings for the following reasons:
 
 208 REPORTS. 
 
 " 1. The affidavit is insufficient in this, that it only states (he 
 belief of the defendant, and shows no fact inproof of a fraudulent 
 intention in the defendants, to dispose of their property. 
 
 2. The certificate of the clerk is insufficient in this, to wit? 
 that it does not certify that he the said clerk, is satisfied of the ex- 1 
 istence of either of the causes mentioned in the statute for grant- 
 ing a writ of attachment. 
 
 3. The affidavit is insufficient, in that it does not sufficiently 
 Bet forth the nature of the indebtedness. 
 
 4. The notice of the attachment was not published for six 
 weeks successively, as required by the statute. 
 
 5. The return of the sheriff is insufficient, in that it does not 
 appear that he attached the property in the presence of two free- 
 holders of the county, or that said property was appraised by two 
 freeholders of the county." 
 
 Publication of notice of the attachment, was proven by the ed- 
 itor of the paper, to have been made for " six successive weeks." 
 The District Court overruled the motion to quash, and the de- 
 fendant, Clark, filed a plea in abatement of a misnosmer of him- 
 self, alledging that he had always been known and called by the 
 name of "Satterlee Clark, junior," and not by the name of "Satter- 
 lee Clark." The plea was overruled by the court,without any issue 
 of law or fact upon it; and at the same term judgment by default was 
 rendered against the defendants for want of a plea. The plaintilf, 
 by leave of the court withdrew his account, and the clerk assessed 
 the damages upon the promissory note at $296 08, for which sum 
 the court rendered judgment: to reverse which judgment, Clark 
 and Jones have prosecuted this writ of error. 
 WIIITO:NJ for plaintiff's in error: 
 
 We contend that the affidavit is not sufficient, and that the 
 court below ought to have sustained the motion to quash the writ. 
 The affidavit states neither facts nor circumstances, but mere be- 
 lief. The decisions in New York say, that proof of facts and cir- 
 cumstances must be made, and that belief is not sufficient. Vos- 
 Jjurg vs. Welch, 1 1 John Rep. 175; Talman vs. Bigclow, 10 
 Wendell, 4T-2. Our statute requires the officer to be satisfied of 
 facts, and the court should examine the affidavit, and see whether 
 it contains matter sufficient legally to satisfy him that the facts 
 existed, and if it docs not, the writ should be quashed; see the 
 case of Morrison vs. Ream decided at the last term of this court.
 
 REPORTS. 209 
 
 But the indorsement of the officer does not show that he was sat- 
 isfied of the existence of any fact that would authorize the writ 
 to issue; it only shows that he was satisfied that the affiant believ- 
 ed the facts. Belief itself is not sufficient, and satisfaction of be- 
 lief amounts to nothing. The affidavit is also defective, in not 
 stating the nature and amount of the indebtedness. 
 
 The proof of the publication of notice, is not full and regular. 
 The statute requires the proof to be made by the printer, or 
 his foreman or principal clerk. Stat. Wis. 247, sec. 58. The 
 affidavit of the editor or publisher, is not the proof required. 
 Again, the attachment law requires the notice to be published for 
 six weeks successively, and this proof establishes the publication 
 for six successive weeks. This is not a compliance with the Statute. 
 Sec Anon. 1 Wendell, 90. The first publication may have been 
 on Saturday and the last on Monday, and there may have been 
 six successive weeks of the publication, and still it may not have 
 continued for the period of six weeks. 
 
 FIELD, for defendant in error: 
 
 This court cannot examine any thing that is not properly a part 
 of the record. The affidavit is no part of the record, unless made 
 so by a bill of exceptions, and this court cannot notice it. 1 Hen. 
 & Mun. 375. A bond, unless set out on oycr, and affidavit for 
 continuance, or to hold to bail, or fur any other purpose, or proof 
 of the publication of notice, forms no part of the record, unless 
 embraced in a bill of exceptions; 3 Peters 1 Dig. 4-10, 411; 1 
 Scammon,233; 5 Peters, 218; 4 Hen. fc Mun. 159. 
 
 But however this point may be considered, the affidavit will be 
 found, upon examination, to comply fully with the requisitions of 
 the statute of 1839, under which the writ was issued. According 
 to the decision of this court, in the case of Morrison vs. Fake, in 
 1841, a substantial compliance with the statute, was sufficient. 
 
 MOSES M. STHONG, in reply: 
 
 The counsel for the defendant in error contend.-;, that because 
 the affidavit is not made part of the record by a bill of exceptions, 
 its sufficiency cannot be inquired into here. To establish this 
 principle, will be to overrule the whole current of the decisions 
 of this court upon similar questions. In the case of Doty vs. 
 Strong, decided in 1S39, an affidavit for a continuance was filed 
 in the court below, and the motion to continue was overruled. 
 No bill of exceptions was taken, but this court reversed the judg- 
 
 27
 
 210 KEPOKTS. 
 
 ment for error in refusing to continue the cause. The court also" 
 decided upon matters not made part of the record hy bills of ex- 
 ceptions, in the case of Morrison vs. Fate, in 184] ; and in the 
 cases of Rou-en vs. Taylor, and Morrison vs. Ream, in 1S42. 
 But the affidavit for an attachment is legitimately a part of the 
 record, and docs not require a bill of exceptions to make it so. It 
 is the very foundation of the whole proceeding. If an attachment 
 case were brought into this court, and the record did not show 
 that any affidavit had been filed to authorize the issuing of the 
 writ, would the court not reverse any judgment that had been're- 
 covered in the case? If so. the same decision must be given up- 
 on a defective affidavit. 
 
 Both the affidavit and the satisfaction indorsed, are, as we con- 
 lend, defective. The affidavit is only of the belief of the affiant, 
 and the satisfaction is only of the belief, and not of any fact. 
 Neither is a compliance with the law; and in this view I think we 
 are sustained by the decisions in the cases of Mayhew f Dudley 
 vs. Mayhew ; Merrill cs. Low, and Morrison vs. Ream. Test 
 the affidavit by considering, whether Bruce, the affiant, could be 
 indicted and convicted of perjury if it is false? It appears to me 
 that no such indictment could be sustained. An affidavit that 
 could not, in any possible state of facts, support a prosecution for 
 perjury, cannot be sufficient for any legal purposes. The very 
 fact of there being a difference of opinion upon the affidavit, is suffi- 
 cient to set it aside; for, as this court said in Merrill vs. Low, the 
 affidavit should be so certain as to leave no doubt or difference of 
 opinion. 
 
 The court below ought to have required an issue, either by de- 
 murrer or replication, on the plea in abatement. If the plea was 
 bad, the defendants should have had leave to plead over; and it was 
 error in the court to dispose of the plea in a summary way. and give 
 judgment in chief against the defendants. See the case of Arndt 
 rs.Allard, decided at the August term, 1840. 
 Opinion of the Court, by Judge MILLER: 
 The plaintiffs in error were defendants in an action of assump- 
 sit commenced by the defendant in error in the District Court of 
 Dane county, by attachment. The affidavit for the attachment 
 was made before the clerk of the said court, before the attach- 
 ment law was amended, and is as follows: " William II. Bruce, 
 agent of Francis Gilbert, being duly sworn, doth depose and say,
 
 REPORTS. 21 1 
 
 that Sattcrlee Clark and Henry Jones, by the name of Clark &- 
 Jones, are justly indebted to the said Gilbert, in the sum of three 
 hundred and five dollars and fifty cents, on a note of hand and 
 balance of account, and that he verily believes, that saici Clark 
 &. Jones are about fraudulently to dispose of their property, so 
 as to hinder their creditor, the said Gilbert:"" On which the clerk 
 make Ibis indorsement: " The above affidavit, being subscribed 
 and sworn to, is to me satisfactory evidence that the matters there- 
 in set forth are true." 
 
 A motion was made in the District Court on the part of the 
 defendants, to quash the writ for insufficiency of the affidavit, and 
 also of the indorsement of satisfaction by the clerk. The mo- 
 tion was overruled, and this forms the assignment of errors in this 
 court. 
 
 An inspection of the paper, is sufficient to satisfy the court that 
 the District Court did not err. The affidavit is complete, accord- 
 ing to the form, under tho statute before the amendment. The 
 certificate of the officer is all that is required. We understand 
 by it that the officer was satisfied that the defendants were about 
 fraudulently to dispose of their property, so as to hinder their cre- 
 ditor, the plaintiff. 
 
 On the 26th day of July, which was the ninth day of this term, 
 the plaintiff in error filed, as an additional error, that the court 
 erred in overruling the plea in abatement, no issue of law or of 
 fact having been made upon it. This plea in abatement, is on the 
 alledged ground that Satterlee Clark is known as Satterlce Clark, 
 junior, and is not so styled in the record, &c. The rules of court 
 require the assignment of errors to be filed on the first day of the 
 term, and the court are under no obligations to notice any filed af- 
 terwards. The court will notice an error apparent on the record 
 when necessary, for the sake of justice; but this appears too tri- 
 vial to require this attention from us. And afier a motion was 
 filed by defendants to dismiss for reasons filed, the court, no doubt, 
 considered this plea as scarcely deserving more than a mere pass- 
 ing notice, and no doubt treated it as a sham pica. 
 
 Judgment affirmed with costs. 
 
 WHITOX, MOSES M. STRONG, and ABBOTT, for plaintiffs in error. 
 
 FIELD &- BOTKIN, for defendant in error.
 
 212 REPORTS. 
 
 HA MILTON STEVENS, ppff in error, ) 
 
 rs. > Error to Jefferson county. 
 
 C. J. COON, deft in error, ] 
 
 A CONTRACT in writing, as follows: "In consideration of A. B. entering 
 the west half of the north-east quarter of section 35, in town 13, ran<;e 13, 
 I bind myself that the said eighty acres of land shall sell on or before the 
 3st October next for two hundred dollars or more, and the said A. B. agrees 
 to give me one-half of the amount over two hundred dollars said land may 
 sell for, in consideration of rny warranty. C. D." "I a^rec'to the abovo 
 contract, A. B;" is void, because it binds the warrantor to the perform- 
 ance of a legal impossibility. 
 
 If the contract had been that the land would be worth two hundred dol 
 lars by a given day, a recovery might be had upon it, if the land did not 
 rise in value to that sum. 
 
 Coon brought an action of assuinpsit against Stevens in the 
 Jefferson District Court upon a written contract, by which Stevens 
 bound himself that a certain half quarter section of land which 
 Coon was about to enter, should sell by a given day for S'200, or 
 more, and Coon agreed to give Stevens one-half of all the land 
 should sell for over $'200. 
 
 On the trial in the court below, Coon, the plaintiff, proved the 
 entry of the land, and introduced evidence to prove that the land, 
 at the time specified in the contract, was worth about 1 25 per 
 acre. 
 
 Upon this testimony, the defendant moved the Court to instruct 
 the jury as in case of a non-suit, for the following reasons: 
 
 "1. Because the said supposed contract was a nudum pactum, 
 by which the defendant received no benefit, and the plaintiff no 
 injury. 
 
 2. Because the supposed contract assumes to bind the defend- 
 ant to perform an impossibility. 
 
 3. Because said writing discloses a gambling contract, if any."' 
 The Court overruled the motion and refused the instruction 
 
 asked for, and the jury returned a vrrdict in favor of the plaintiff 
 for 110 50; upon which the Court rendered judgment. To re- 
 verse tliis, Stevens lias prosecuted this writ of error. 
 
 BRIGHAM, for pl'll'm error, declined opening the argument. 
 
 WJIITON, for deft in error: 
 
 The contract upon which this suit is brought, is said to be a
 
 REPORTS 213 
 
 nudum pactum. Such cannot be the construction given to the 
 writing; it is a fair agreement that might result in benefit to one 
 or the other of the parties. 
 
 It is also alledged that the performance of the contract is im- 
 possible. This is a mistake. It is not only possible but proba- 
 ble. 
 
 Again, it is said that it is a gambling contract, and as such, can- 
 not be recovered upon at law. This is obviously not the case. 
 Stevens knew the country and was acquainted with the land, but 
 had not money to enter it: Coon had money, but knew nothing of 
 the land, and upon Stevens' representations, agreed to enter it 
 and give him one-half of all it would sell forever $200, in a given 
 time, and Stevens bound himself that it should sell for that sum or 
 more by the time specified. This was a perfectly fair arrange- 
 ment, and neither gambling nor against public policy; and was one 
 that might have resulted to the mutual benefit of both the parties. 
 
 BRIGHAM, in reply: 
 
 The motion for a non-suit in this case, was in effect, a demurrer 
 to the evidence, and submitted the question of law to the Court, 
 whether, upon the testimony, the plaintiff could recover. If the 
 Court decided improperly in overruling the motion, it was error. 
 4 Call, 17. 
 
 The contract itself is a gambling contract, and against the poli- 
 cy of the law, and as such, a recovery cannot be had upon it. 2 
 Mass. Rep. 6. 3 Pick. 419. 
 
 The contract is void,because it bound Stevens to the performance 
 ofanimpossibility. When Coon entered the land, no one but himself 
 had any control over the sale of it. It is immaterial how high the 
 land might have risen in value, if Coon did not choose to sell, Stevens 
 had no power to compel him to do so for $200, or any sum over. 
 A legal impossibility of this kind is not binding on a party, even 
 if he has entered into a contract for the performance. Coke on 
 Lit. 200. Pothieron Obligations, 71. 2 Saund. Ilcp. 137, d. 
 6 Petersdorff's Ab. 218. 
 
 Opinion of the Court, by Chief Justice Duxx: 
 
 Error is brought in this case to reverse a judgment of the Dis- 
 trict Court of Jeflerson county. 
 
 Coon, plaintiff below, brought his action of assumpsit against 
 Stevens, defendant below, to recover damages on a liability grow- 
 ing out of a contract, which is in the words, tfcc., following, viz:
 
 214 REPORTS. 
 
 'Astor, March 23d, 1839. In consideration of C. J. Coon en- 
 tering the west half of the north west quarter of section 35, in 
 town 13, range 13, 1 bind myself that the said eighty acres of land 
 shall sell, on or before the 1st October next, for two hundred dol- 
 lars or more, and the said Coon agrees to give me one half of the 
 amount over two hundred dollars said land may sell for in consi- 
 deration of my warranty. HAMILTON STEVENS." 
 
 "I agree to the above contract, C. J. COON." 
 
 "JOHN S. HORNER." 
 
 At the August term of the said Jefferson District Court, in the 
 year 1840, the said defendant Stevens pleaded the general issue 
 which was joined by the srid plaintiff Coon, and after several con- 
 tinuances, the case was tried at the October term. 1842. On the 
 trial, the above contract, and the Receiver's receipt to said plain- 
 tiff Coon, for the purchase money for said tract of land described, 
 in said contract, were read in evidence to the jury; and Abraham 
 Vanderpool, a witness testified; " that he had visited that parlor 
 the country where the land lies specified in said writing, and was 
 upon the same, as he has no doubt, and estimated the present 
 value of the same at one dollar and fifty cen's per acre, and that 
 in October, 1839, it might be worth one dollar and twenty-five 
 cents an acre." Upon this evidence and testimony the plaintiff 
 rested his case. 
 
 In view of the conslruction put on the contract read in evi- 
 dence, the jury found for the plaintiff $110 50 in damages, and 
 judgment was entered thereon. There is manifest error in this de- 
 cision of the court. From an inspection of the contract, it is ob- 
 vious that it is not such an one as is obligatory on either party. 
 There is no reciprocity of benefit, and it binds the defendant be- 
 low to the performance of a legal impossibility, so palpable to the 
 contracting parties, that it could not have boen seriously intend- 
 ed by the parties as obligatory on either. The undertaking of 
 the defendant below is, " that plaintiff's tract of land shall sell 
 for a certain sum by a given day." Is it not legally impossible for 
 him to perform this undertaking? Certainly. No man can, in 
 legal contemplation, force the sale of another's property by a giv- 
 en day, or by any day, as of his own act. The plaintiff was well 
 apprized of the deficiency of his contract on the trial, as the tes- 
 timony of his witness was entirely apart from the contract sued 
 on, and set up a new contract and such an one as the law would
 
 REPORTS. 215 
 
 have recognized. If the contract had been that the tract of land 
 \vould be worth two hundred dollars by a given day, then it could 
 have been recovered on, if it did not rise to that value in the lime. 
 
 1 Cumyn on Contracts, 14, Jt>, 18; 1 Comyn's Dig. Title, Agree- 
 ment; 1 Potliier on Obligations, 71 ; G Petersdorf 's Abridg. 218; 
 
 2 S;uid. 137 (d.) The District Court could not have entered 
 judgment on the finding of the jury in this case. The construc- 
 tion of the contract [>y the District Court, was erroneous. 
 
 Judgment reversed with costs. 
 BUIGHAM, for plaintiff in error. 
 WHIT ON, for defendant in error. 
 
 THE UNITED STATES, ex relation. 
 THOMAS A. 13. 13OYD, j 
 
 vs. > In quo ivarranlo. 
 
 JAMES H. LOCKWOOD,\ 
 
 A JUDGE of the Court cannot award a writ of quo warranlo, in vacation. 
 
 Pr 'cecclings in quo warranto^ may be maintained against a Judge of 
 Probate. 
 
 Proceedings in quo warranlo must be at the instance of the Government, 
 acting by the proper officer; they cannot be maintained at the instance of 
 a private person. 
 
 The proper course of proceeding in the commencement, is to lay a pro- 
 per ca?e before the Court at the instance of the proper law officer, verified 
 by affidavit, upon which the Court will grant a rule to show cause why an 
 information should not be filed ; if the cause shown is not such as pu:s the 
 matter beyond dispute, the rule will be made absolute for the information, 
 in order that the question concerning the right may be properly determined. 
 
 On the 1st July, 1843, Boyd, the relator, presented to the 
 Chief Justice, in vacation, a relation and affidavit setting forth, 
 that he, the rdator, was duly elected to the office of Judge of 
 Probate of Crawford county, at the election held on (he first Mon- 
 day in May, 1843, by a majority of ihe legal votes cast at the said 
 election; that the certificate of election to the s:iid office ought to 
 have been given to the relator, but that it was given to James H. 
 Lockwood, who had from that time since usurped the said office 
 against the right of the relator, and concluded with a prayer of
 
 "210 UEPOIITH. 
 
 process, &c. Upon the affidavit, the Chief Justice made an or- 
 der on the 1st July, to the clerk of the Supreme Court to issue a 
 \viit of quo u'ftrranto in the case related. The writ was issued 
 on the 3d July, directed to the shcrilFof Crawford county, and was 
 served, and returned to this court. 
 
 The proceedings were commenced and prosecuted by BEN C. 
 EAST MAX, attorney for the rclator. 
 
 On the second day of the term, the rclatovby his counsel moved 
 the Court for a rule against the respondent to plead to the rela- 
 tion, and on the fifth day a rule was ordered requiring the respon- 
 dent to plead on or before the eighth day of the term. Under 
 this rule the respondent moved the Court to c!ijmij3 tho proceed- 
 ings, because 1. The process and proceedings are not authorized 
 by law; 2. The said process and proceedings arc not instituted 
 and conducted by any person authorized by lav/ 10 institute and 
 conduct the same, 
 
 BURNKTT, for respondent, and in support of the motion: 
 
 The process in this case was not properly awarded, and is with- 
 out authority of law. The only authority which the legislature 
 has given upon the subject, is contained in tho judiciary act; 
 Stat. Wis. 190. The second section says that the Supreme Court 
 shall have power to issue writs of mandamus, quo icarranto, Lc. 
 This power is vested in the court, and not in the judges separate- 
 ly, to be exercised in vacation. The award of the writ in this 
 case, made by one of the judges at chambers, is not within the 
 authority given by the statute. The statute confers a naked au- 
 thority on the court to issue the writ, and makes no provision for 
 the subsequent proceedings; and we are left to the original writ 
 of quo u-arranto, to be carried into effect as at common law. The 
 writ of quo warrunto, is in the nature of a writ of right for the 
 government, to sei/.e the oflicc or franchise into the hands of the 
 
 o J 
 
 government; 2 Wheaton's Sclwyn, 3:22; Buller's i\. P. 210, 211, 
 212; 7 Cornyn's Dig. Title Quo Warranto, A. And at common 
 law there is no rclator; 2 Wheat. Sel. 3;^{, note -1. This writ, 
 then, having been awarded by a judge in vacation, and not by the 
 court, and being upon the relation of Thomas A. ]J. Boyd, has 
 Lcen commenced without authority of law, and should be dis- 
 missed. 
 
 The proceedings are not instituted or conducted upon the proper 
 authority. They wurc commenced upon the relation of a private
 
 UKPOUTS. 21? 
 
 individual, nnd arc prosecuted by liis attorney, as any civil pro- 
 ceeding. It is aii established principle that proceedings in quo 
 warranto must be instituted by the government and prosecuted 
 by the Attorney General. 2 Wheat. 8 !. ;>~.J, i: W~<t!l;icc ?.?. 
 Anderson, 5 Wheat. -2'M; C/'cari/ vs. 1), //<'v.vr;V,-;r, 1 McCurd, :, : .~>. 
 The practice in JN'ew York shows that all proceedings of iii:: ki,id 
 are instituted by the government and prosecuted!) 1 / 'h Attorney 
 General,- The People vs. Rlchanhnn, 4 Cowcn, 'j/. and note 100 
 123. In Wallace vs. Anderson, the Supreme Court of the 
 United States expressly decided, that proceedings in f/o u-arrun- 
 lo to try the right to an office, cannot in any case be maintained 
 except at the instance of the government; and if instituted by a 
 private individual without the authority of the government, they 
 cannot be sustained, whatever the rights of the parlies may be. 
 
 EASTMAN, forrelator: 
 
 The authority given in tiic statute to grant writs of quo u-ar- 
 ranto, &-c., does not apply to the coti'.l a!oi!o. but e,m!)raccs, in 
 cfiect, the judges of the court. Th? third sec! ion of the act 
 that has been referred to, gives the judges in vacation, the pow- 
 er toallow writs of error, certiorari, su nurse do as and inj'.mciion; 
 and also by tiie same section, the court is vested with all power 
 and authority necessary forcarrhig into completf cxi cation all its 
 judgments, decrees, determinations, &,c.: and for liie exercise of 
 its jurisdiction agreeably to the usages and principles of lav/. 
 The meaning of the statute is the same in relation to all th::.su ne- 
 cessary powers; and where it is necessary to the ends of justice, 
 to award a writ in vacation to carry into ( ii'oct any of the powers 
 of the court, the judge imy grant it. This construction will har- 
 monize all the powers of the court, and eilect the objects tint 
 were intended by the legislature. 
 
 Formerly, a quo warrants was regarded as a criminal pro- 
 ceeding, in which the usurper was punished by line, and had to 
 be instituted by the crown. In modem times, it is considered as 
 a mere civil proceeding to try the right to an oilier, ;i Wheat. 
 Sel. 346; 4 T.R. SO'J; 2 T. R. i?l; ~2 Tula's IVac. .s:}?, '.). 
 It being in the nature of a civil suit to try tii;; rights of the parties 
 it is not necessary that it should be prosecuted by tiic Attorney 
 General. The case of 3[cCIcrnand r.s\ Field, in 3 Scammon, is 
 one in point, and shows th ;t in tiie Si:prr,Ti -' ( 'o'.irt of llhiio.s, the 
 principle is recognized of trying the rigiit to r.n ofiicc on quoir.'ir-
 
 218 REPORTS. 
 
 ranto, at the instance of the party, without any connection with the 
 law-officer of the government. 
 
 BURNETT, in reply: 
 
 The very distinctions that have been pointed out in the statute, 
 show a different intention in the legisfaluie than the one contend- 
 ed for. Where a general power is given to the court for a variety 
 of different objects, and in some of the cases, the power is given 
 to the judge to act in vacation, it excludes the idea that he can 
 do so in the others. 
 
 The English authorities that have been read, are founded upon 
 the different acts of parliament, and are not based upon the com- 
 mon law. The British statutes never were in force in this Ter- 
 ritory, and the decisions upon them, can have no authority in this 
 case. 
 
 The case of JtcClernand vs. Field, was an agreed case, in 
 which every matter of form was waived, and the right to the office, 
 only, submitted to the court. The report of the case shows noth- 
 ing of the forms pursued, and it cannot be relied upon as govern- 
 ing the case before the court. 
 
 Opinion of the Court, by Chief Justice DUNN: 
 
 The respondent, by his attorney has submitted a motion in this 
 case to dismiss, in response to a rule to plead. The reasons in 
 support of the motion, are: 1st. The process nnd proceedings herein 
 are not authorized by law. 2nd. The said process and proceed- 
 ings are not instituted and conducted by any person authorized by 
 law to institute and conduct the same. 
 
 This is the first proceeding of the kind that has been attempt- 
 ed in this court. There is no law of the Territory defining the 
 form of proceeding in such informations. The second section of 
 the " act concerning the Supreme aad District Courts," vesis in 
 this court the power of issuing writs of mandamus, quo warranto, 
 &c. And the third section vests in it, " all power and authority 
 necessary for the exercise of its jurisdiction as the supreme judi- 
 cial tribunal of the Territory, agreeably to the usages and princi- 
 ples of law." In the exercise of our jurisdiction over informa- 
 tions in the nature of quo warranto, we must be L'ovomed by the 
 "usages and principles of law," and it is of the utmost importance 
 that they should be correctly understood and defined, step by step, 
 as we proceed. 
 
 The rule is now settled, that an information in the nature of
 
 REPORTS. 219 
 
 quo warranto, will lie, to inquire by what authority any one exer- 
 cises any particular office or jurisdiction, in which the public are 
 concerned. An office is where, for the time being, a portion of 
 the sovereignty, legislative, executive, or judicial attaches, to be 
 exercised for the public benefit. That the Court of Probate of 
 Crawford county, is an office within this definition, there can be 
 no question; and that the proceeding by information in the nature 
 of quo warranto may be had against the incumoent judge, is equal- 
 ly free from doubt. 
 
 The case of Wallace vs. Anderson, 5 Wheaton, 291, settles 
 this principle : " that a writ of quo warranto cannot be maintained, 
 except at the instance of the government, whatever might be the 
 right of the prosecutor, or person claiming to exercise the office 
 in question: " Ii does not appear, affirmatively, that the proceed- 
 ing in this case, is at the instance of the government. It is true, 
 that the style of the relation is; " The United States on the rela- 
 tion of Thomas A. B. Boyd vs. James H. LockwooJ." The At- 
 torney General, or other public prosecutor, is not identified with 
 the relation. It might be conceded that the Attorney General 
 could not withhold his name or sanction, it being now recognized as 
 a civil proceeding, to settle the relative claims of individuals to an 
 office. Be this as it may, it should appear in ilie proceedings, to 
 be at the instance of the government, acting by its proper of- 
 ficer. 
 
 The Supreme Court is vested with the power to issue the writ 
 of quo wnrranto, &c. One of the judges thereof cannot, in va- 
 cation, issue or order the issuing of the writ. 
 
 At the instance of the government, by its proper officer, on the 
 relation of Thomas A. B. Boyd, presenting a proper case verified 
 by affidavit, this court could not hesitate to take the proper ac- 
 tion. 
 
 The method of proceeding is to lay a proper case before the 
 court, verified by affidavit, upon which the court will grant arule 
 to the party, to show cause why an information should not be filed 
 against him; and unless the cause shown by him, bo such as 
 puts the matter beyond dispute, the court will make the rule ab- 
 solute for the information, in order that the question concerning 
 the right may be properly determined. Bullcr's Nisi Prius, 210, 
 11, 12. 
 
 We have thought it necessary in disposing of this motion against
 
 220 REPORTS. 
 
 the relator, to indicate what is viewed to be correct practice under 
 the law applicable to proceedings of this nature, in their inception, 
 that he may present his oOse through the proper channel and with 
 regularity. 
 
 The order made by one of the members of this court at cham- 
 bers, for a writ, was not made with confidence at the time, of its 
 propriety: Subsequent full examination has satisfied that member 
 of the court, that the order was irregular. 
 
 The motion to dismiss is sustained and the proceedings dis- 
 missed with costs. 
 
 EASTMAN, for relator. 
 
 BURNETT, for respondent. 
 
 CHARLES BRACKEN , plaintiff in error, ) 
 
 is. > Error to Toua counti/. 
 
 SYLVESTER B. PRESTON, et al. defHs in error, \ 
 
 JUSTICES of the Peace are not bound to examine jurors under oath as to 
 their qualifications, as the authority to do so is not given them by statute. 
 
 In proceedings iu forcible entry and detainer, the complainant must set 
 forth his title so far as to show himself within the provisions of the statute, 
 and that title may be controverted by the defendant, but the defendant 
 cannot set up title in himself in defence; the title to the premises, as be- 
 tween tlie complainant and defendant, cannot be inquired into : The com- 
 plainant must set forth a seizin or possession in himself within the provisr 
 ions of the act, and whether his estate is free-hold or a term of years, and 
 upon the traverse, he must prove the allegations as to his estate, but the 
 defendant cannot lustily the force by showing title in himself. 
 
 In case of forcible entry and detainer removed into the District Court 
 by certiorari, the District Court may decide upon errors in fact, but whe- 
 ther the Supreme Court can do so on writ of error is uot settled. 
 
 Bracken filed a complaint before William Henry, a justice of 
 the peace in Iowa county, setting forth that he was the owner in 
 fee of the undivided one-third part of the east half of the north- 
 east quarter of section 5, township 4, of range 3, cast, and being 
 in possession thereof', Sylvester B. Preston, William Kendall, Wil- 
 liam Nichols, and William T. Philips, forcibly entered upon, and 
 forcibly detained the same.
 
 REPORTS. 221 
 
 Upon the trial of the complaint, Bracken wished to examine 
 some of the jurors under oath, previous to their being sworn in 
 chief, as to whether they had formed or expressed an opinion in 
 relation to the matter to he tried, hut the justice refused to allow 
 the qualifications of the jurors to bo inquired into, and they were 
 sworn in chief. 
 
 After the complainant's evidence was heard in relation to his 
 title, possession, and the forcible entry and detainer complained 
 of, the defendants proved in justification, that one Andrew Rum- 
 frey and the complainant, previous to the occupying of the prem- 
 ises by the defendants, had some conversation in which Rumfrey 
 said he wished to dig on the complainant's ground, and complain- 
 ant said he might do so, but that he wanted the mineral, and Rum- 
 frey replied, that if he would give as much for it as any body else 
 he might have it; that after this Rumfrey mined upon the land in 
 dispute, and after working some time, sold his interest in it to the 
 defendants: Written transfers from Rumfrey to each of the de- 
 fendants, embracing together all his interest, were produced and 
 read as evidence. To all of this testimony, the complainant ob- 
 jected, the justice overruling his objections. 
 
 The jury returned a verdict in favor of the defendants,upon which 
 the justice rendered judgment. Bracken removed the proceed- 
 ings into the District Court, by certiorari, and assigned the fol- 
 lowing errors to reverse the judgment of the justice. 
 
 1. The justice error in refusing the complainant the privilege 
 of asking the jurors under oath whether they had formed or ex- 
 pressed an opinion. 
 
 2. After a peaceable entry had beer, proved by the complain- 
 ant, the justice erred in suffering any testimony whatever to show 
 that die defendants had any right of possession, for if they had any 
 such right, they could only obtain it by due course of law, and 
 could not justify the force. 
 
 3. The justice erred in permitting the written transfers from 
 Rumfrey to Philips and the other defendants, to bo read as evi- 
 dence for the defendants, as there was no proof that Rumfrey had 
 any interest that he could transfer. 
 
 4. If the defendants could justify the force under the transfers 
 from Rumfrey, they could only do so, by showing that they and 
 Rumfrey had complied with the terms of the contract with 
 Bracken.
 
 222 REPORTS. 
 
 5. The verdict was coetrary to law and evidence. 
 
 Upon the consideration of these errors, the District Court affirm- 
 ed the judgment of the justice; to reverse which decision, Brack- 
 en has prosecuted this writ of error. 
 
 Judge IEVIN, being a part owner of the land, though not inter- 
 ested in the subject matter of this suit, declined sitting in the 
 case. 
 
 MOSES M. STRONG, for pl'ff in error: 
 
 On the trial before the justice, the complainant asked to have 
 some of the jurors examined under oath, as to whether they had 
 formed or expressed an opinion upon the subject about to be sub- 
 mitted, which was refused by the justice. This is tUe first error 
 in the proceedings. The statute makes the inquiry a proper one 
 in the District Courts, and it is a common law tight in all cases of 
 trial by jury. The trial by jury before a justice is of no benefit, if 
 a party is bound to submit to a jury that are prejudiced against 
 him and who have pre-judged the case. 
 
 The evidence in the case shows that the complainant was in 
 peaceable possession of the premises, and that the defendants 
 committed the forcible entry complained of. The justice per- 
 mitted the defendants to justify by introducing evidence to show a 
 right of possession in themselves. This they 'did by proving a 
 vague conversation between one Rurnfrey and the complainant 
 about Rumfrey 's digging on the ground, and then by written 
 transfers from Ruorifrey to the defendants. We contend that all 
 this evidence wus improper, and should not have beun admitted: 
 That on the trial, nothing but the force complained of, could le- 
 gally be inquired into, and that in proceedings of this kind, the de- 
 fendants cannot justify by showing any right or title in themselves. 
 But if such testimony had been legally admissible in this case, the 
 vague conversation between Rumfrey and Bracken did not amount 
 to a contract that could be legally carried into effect. There was 
 nothing in it that was definite, either as to terms, duration, loca- 
 tion, or any thing else. Admitting, however, that it was a con- 
 tract between Bracken and Rumfrey, the utmost construction 
 thai could be put upon it, would only make a Rumfrey a tenant 
 at will, and that would not vest in him any right or interest in the 
 soil that he could transfer to another. 13 John. Rep. 106; 2 
 Caine's Rep. 1G9; 6 Amer. Com. Law, 389; 2 Yerger's Tenn. 
 Rep. 249; 4 Ver. Rep. 291.
 
 REPORTS. 223 
 
 DUNN, for def 'ts in error: 
 
 The statute of forcible entry and detainer is perfect in itself, 
 and does not refer to any other act of the legislature to carry out 
 any of its provisions: It must, therefore, be construed by itself 
 alone, without considering it in connection with any other. This 
 Statute does not provide for the challenge of jurors for the cause 
 assigned, and the justice could not have allowed it; if he had done 
 so, he had no power to fill the jury. 
 
 But if the justice erred in this decision, still, if the verdict of 
 the jury was warranted by the evidence, the Court will not set it 
 aside. If the Court examines the evidence in the case, it will be 
 found that no othercorrect verdict could have been given upon it 
 than the one found by the jury. There was no proof of right in 
 the complainant or offeree by the defendants. 
 
 But we contend, that on certiorari, the Court cannot inquire 
 into the facts of the case. Errors of law alone can be examined 
 by the Court; 10 Wendall,422. 
 
 BURNETT, in reply: 
 
 If we consider the very object of a trial by jury, the complainant 
 certainly had aright to test the qualifications of the jurors called 
 to try his complaint. Every party has a right to a fair and impar- 
 tial jury who have not pre-judged his case. The statute requires 
 that the jurors shall be qualified to try a cause in the District 
 Court. This cannot be applied to one qualification or anolher, 
 but they must be so qualified in every respect. If ihen it would 
 be error in the District Court to refuse to examine into their qual- 
 ifications and force upon a parly a prejudiced juror, it must be er- 
 ror in the justice. But it is said, that if the evidence sustains the 
 verdict, the court cannot set it aside, on account of any legal de- 
 fects in the jury. I do not understand this to be the law. It is 
 immaterial what the court may think of the testimony, if there was 
 error in ihe empannelling of the jury, and the party was deprived 
 of a legal right in the selecting and Irving the jurors, the court is 
 bound to set aside the verdict. 
 
 Again it is said that the court cannot look into the facts on cer- 
 tiorari, and a case in 10 Wondell has been referred to to establish 
 the principle. By an examination of the eleventh and sixteenth 
 sections of the statute, it will be found that the principle cannot be 
 applied here. The eleventh section provides that the party ag- 
 grieved by the decision or judgment of the justice, or verdict of
 
 224 REPORTS. 
 
 the jury, may remove the proceedings into the District Court by 
 certiorari, and the sixteenth section directs that in such case, the 
 court shall give judgment according to the very right of the case. 
 Here then tiie party may have the writ and remove the proceed- 
 ings, although the verdict of the jury may be the only thing in the 
 case that aggrieves him, and to say that the court, after the cause 
 is removed, cannot look into (he facts, is to make this portion of 
 the statute a dead letter. 
 
 Opinion of the court, by Judge MILLER: 
 
 Charles Bracken commenced proceedings before a justice of 
 the peace of Iowa county against the defendants, under the act to 
 prevent forcible entries and detainers. The complainat charged that 
 the defendants made an unlawful and forcible entry into his lands 
 and tenements and with strong hand detained the same. The 
 jury found for the defendants, and the case was removed by the 
 plaintiff by certiorari, to the District Court of Iowa county, where 
 the judgment before the justice was affirmed. The plaintiff there- 
 upon sued out this writ of error. 
 
 The first error assigned is; that the justice refused to have the 
 jurors sworn to answer questions respecting their capacity to serve 
 as jurors, and whether they had formed or expressed an opinion 
 of the merits of the cause. 
 
 Section 26 of the act concerning grand and petit jurors, gives 
 authority to the Distiict Courts to swear the jurors, but not to 
 justices of the peace. There is no such authority given by law 
 to justices of the peace. Without authority by law the court or 
 justice has no right to require jurors to be sworn to answer ques- 
 tions, whether they have declared opinions on (he case . It would 
 be the duty of the justice to admonish them, that if they did not 
 feel indiffeicnt, or had pre-judged the cause or declared their opin- 
 ions, they should disclose it. The Commonwealth vs. Dcnnie, 4 
 Yeats, 267. Without an act on the subject a juror may be sworn, 
 but there is no obligation to do so; McCorclc vs. Binns, 5 Binney, 
 340. In this case there is not even an allegation (hat any one of 
 the jurors had formed or expressed an opinion, and the justice 
 not being obliged by law to swear a juror on the subject, there is 
 no error in the refusal of the justice to do so. But that there 
 should be a law requiring it in cases before justices of the peace, 
 there is no doubt. 
 
 The second error assigned, is as follows: The lease to An-
 
 REPORTS. 225 
 
 drew Rumfrey was only a parol lease which only created a ten- 
 antcy at will, and might terminate at the option of either party; 
 and Rumfrey had not such an interest as could be transferred. 
 
 This relates to testimony given on the part of the defendants, 
 and should not have been allowed before the jury; and will not 
 be considered here. If the cause had turned on this evidence, 
 the judgment before the justice should be reversed. The de- 
 fendants are proceeded ngainst for forcible entry and detainer. 
 They have no right to justify the force by showing title in them- 
 selves. It i& in the nature of a criminal proceeding against them, 
 and they cannot justify the forcible entry and detainer on the 
 strength of their title. In a proscution of this nature, the title to 
 the premises, as between the defendants and relator or complain- 
 ant, cannot be inquired into, though the latter is bound to set 
 forth his title so far as to show himself within the provisions of 
 the act. That title may be controverted by the defendant, but 
 he cannot set up his own as a substantive matter of defence, be- 
 cause the question of title cannot be tried in this action; The 
 People vs. Godfrey, 1 Hill, 240. In a proceeding of this kind, 
 the complainant must set forth a seisin or possession within the 
 perview of the act, or whether his estate be a freehold or term 
 of years; and on the traverse, the allegations as to his estate 
 must be proved by him: But the defendant cannot justify the 
 force by showing a title in himself: He may controvert the facts 
 by which the complainant attempts to show title in himself; The 
 People vs. Nelson, 13 John. 340. The same doctrine will be found 
 in the cases of The Peoplers. Ricket, 8 Cowen, 220; The People 
 vs. LfConard, 11 John. 504. And if the title of the defendant, or 
 his right of possession is paramount, he must resort to an appro- 
 priate remedy to maintain his rights. 
 
 The third error assigned is as follows: " It having been proven 
 that the plaintiff was in the peaceable possession of the land, he 
 could not have been ousted only by due course of law." 
 
 By the sixteenth section of the act to prevent forcible entries 
 and detainers, the District Court to which any certiorari is return- 
 ed, shall proceed to hear and determine the same, as the very 
 right of the case shall appear, without regarding technicalities or 
 imperfections in the return. Evidently, from this section and 
 other provisions in said statute respecting the removal of causes 
 by certiorari to the District Court, that court has the power to de- 
 
 29
 
 226 REPORTS. 
 
 cido upon errors of fact as well as of law. This court is a court 
 for the correction of errors in questions of law, and generally, 
 should not inquire into the correctness of the decisions of the 
 District Courts in questions of fact. As the court is not full, and 
 this case does not require it, we will not in this case, establish a 
 rule on this subject, although referred in the argument to a case 
 in point; Columbia Turnpike Company vs. Hayward, 10 Wen- 
 dell, 422. 
 
 In this case the complainant did not make out by proof, a forci- 
 ble entry and detainer against the defendants. 
 
 Judgment affirmed with costs. 
 
 MOSES M. STRONG and BURNETT, for plaintiff in error. 
 
 DUNN, for dafendants in error. 
 
 JOSEPH ROLETTE, appellant, \ 
 
 JANE F. ROLETTE and ( Appeal from Crawford county. 
 
 BERNARD W. BRISBOIS,a^9eZ/ee,) 
 
 A DEED entered into between husband and wife of one part and a trus- 
 tee of the other, executed after a separation between the husband and wife 
 for the purpose of securing to the wife a separate maintenance, is a valid 
 contract, and cannot be rescinded in chancery at the suit of the husband 
 on the ground of its being against the policy of the law. 
 
 On the 22d September, 1834, Joseph Rolette, and Jane F. his 
 wife, having been for some time living separately and apart from 
 each other, entered into an indenture with Bernard W. Brisbois, a 
 trustee mutually chosen, by which, among other things, Joseph 
 Rolette covenanted to the trustee to furnish and provide a sepa- 
 rate maintenance for his wife, as specified in said deed. After 
 some time the husband refused to furnish the support and main- 
 tenance for his wife according to the terms of the deed, and Bris- 
 bois, the trustee, cammenccd an action of covenant to recover da- 
 mages for the refusal. Pending the action, on the 10th March, 
 1840, another indenture was entered into between the said Ro-
 
 REPORTS. 227 
 
 lette and wife of the one part and the said Brisbois as a trustee of 
 the other, which recited: "that whereas circumstances have, for 
 several years last past, prevented the said Joseph Rolette and 
 Jane F. Rolette his wife from living together in the relations of 
 husband and wife; and whereas the said Jane still chooses to live 
 separately and apart from her said husband, and the said parties 
 have agreed that she shall do so;" and then provided, that in con- 
 sideration of the obligation of the said Joseph to support his said 
 wife suitably to her condition in life, and in consideration of five 
 dollars to him paid, he, the said Joseph, granted to the said Bris- 
 bois in trust for the sole and separate use of the wife, an annuity 
 of the yearly sum of eight hundred dollars payable quarterly for the 
 life of the wife. By subsequent provisions of the deed, the action 
 of covenant was to be dismissed, and all causes of action for 
 which it was commenced were released, and the deed of the 22d 
 September, 1834, was cancelled. The payment of the annuity, 
 and the covenant of the latter deed, were secured by a bond to the 
 trustee in the penalty of thirty thousand dollars, and a moitgage 
 upon real estate at Prairie du Chien. 
 
 Joseph Rolette filed a bill in chancery in the Crawford District 
 Court, against his wife and the trustee, setting up the latter deed, 
 bond, and mortgage, and also the deed that was cancelled; 
 charging that the separation was of her will and not of his; that 
 he was willing to support her at his own house, and that the said 
 deed, bond, and mortgage were without any sufficient considera- 
 tion, contrary to the whole policy of the law in relation to mar- 
 riage, and against the interest, order, and happiness of society. 
 The bill prayed that the said deed, bond, and mortgage should be 
 surrendered up and cancelled. 
 
 To this bill the defendant filed a general demurrer, and at tho 
 October term, 1842, the District Court decreed that the bill be 
 dismissed with costs. From this decree the complainant appealed 
 to this Court. 
 
 EASTMAN, for appellant: 
 
 Contracts for the separation of husband and wife, and for sepa- 
 rate maintenance, founded on such separation, have undergone 
 great scrutiny in the English and American courts of late years. 
 The current of modern decisions is against the validity of all 
 agreements of the kind. 
 
 The case of Rogers vs. Rogers, 4 Paige's Chy. Rep, 510, dc-
 
 228 REPORTS. 
 
 cided in New York in 1834, was where a contract for a separate 
 maintenance bad been entered into between the husband and wife 
 with a trustee. In that case the Chancellor said: " It is impossi- 
 ble for a feme covert to make any valid agreement with her hus- 
 band to live separately from him, in violation of the marriage con- 
 tract, and the duties she owes to society, unless it be done under 
 the sanction of a court of chancery, and then only when the con- 
 duct of the husband would entitle the wife to a decree for a sepa- 
 ration. The law of the land does not sanction a voluntary agree- 
 ment fora separation between husband and wife." 
 
 The ecclesiastical courts in England have decided, that it is im- 
 possible for the parties in marriage lawfully to relieve each other 
 from their reciprocal duties, which the relation of husband and 
 wife impose upon them. Those courts consider it an illegal con- 
 tract, exhibiting a dereliction of those mutual offices which the 
 panics are not at liberty to desert; an assumption of a false cha- 
 racter, contrary to the real status persona which they have con- 
 tracted to observe and abide by. In Rogers vs. Rogers, the 
 Chancellor referred to the case of Westmeath vs. Westmeath, 2 
 Haggard's Eccl. Rep. 238; and also to the case of Mortimer vs. 
 Mortimer, id. 543. The case of Westmeath vs. Westmeath, was 
 an application to the consistoral court for a restoration of conju- 
 gal rights. In December, 1817, in consequence of the brutal 
 conduct of Lord Westmeath, a deed of separation was executed 
 to a trustee, providing for a separate maintenance. They, how- 
 ever, continued to live together until 1818. In November, 1818, 
 a new instrument of separation was executed, and 300 per an- 
 num settled upon the lady. This deed recites that disputes and 
 difficulties had arisen between the parties, and " that they were on 
 the point of living separate and apart, but by the mutual interven- 
 tion of friends, she had consented to live and cohabit with him 
 after the execution of the deeds." In June, 1819, the parties 
 finally separated, and this bill wis filed to enforce conjugal rights; 
 and at the same time, Lord Westmeath filed his bill in the chan- 
 cery court, to have these deeds delivered up to be cancelled. To 
 the bill in the consistoral court, these deeds were pleaded in bar. 
 That court decided that Lady W. should return to her husband; 
 an appeal was taken, and in Hilaray term, 1827, the case was de- 
 cided by Sir J. Nicoll. After the deeds of separation of 1818 
 were executed, no matrimonial cohabitation took place between
 
 REPORTS. 229 
 
 the parties, but to conceal their separation from the world. Lord 
 W. continued to occupy a room in the house until June, 1819. 
 The decision of the consistoral court was reversed, but it was oil 
 account of the cruel treatment of the husband, and a separation 
 was decreed, which decision was subsequently confirmed by the 
 high court of delegates. The court here considered the deed of 
 separation no bar to the action, but enforced its terms by way of 
 settlement upon the wife, taking the deed which was agreed upon 
 between the parties as a guide for the amount of the settlement 
 which was proper to be made. 
 
 The case of Lady Mortimer vs. Lord M ortimer > was also a bill 
 for the restoration of conjugal rights. A deed of separation was 
 entered into between the parties in 1811. In 181G, the bill was 
 filed. Sir William Soott, in commenting on this deed of separa- 
 tion which was pleaded in bar in this case, says: " This court con- 
 siders deeds of separation as illegal contracts, and not plcadable, 
 and entirely insignificant. They imply a renunciation of stipula- 
 ted duties which the parties are not at liberty to desert; from the 
 solemnities of a contract, from which the parties, by their own 
 act, cannot relieve themselves." 
 
 In the case of Carson vs. Murray, el als. 3 Paige's Chy. Rep. 
 483, decided in 1822, the Chancellor says: "An agreement for a 
 separation cannot be supported unless fhe separation has already 
 taken place, or is to take place immediately upon the execution 
 of the deed." He also decided, that such an agreement will be 
 rescinded, if the parties afterwards cohabit or live together for 
 ever so short a time. "It may well be doubted, (says he,) whe- 
 ther public policy does not forbid any agreement for a separation 
 between husband and wife; and whether it does not require that 
 such an agreement should be limited to cases, where, by the pre- 
 vious misconduct of one of the parlies, the other is entitled to 
 have the marriage contract dissolved by a decree of court. 1 ' He 
 refers to the case of St. John vs. St. John, 11 Vescy, 526, where 
 Lord Eldonheld the same doctrine precisely; and also to the case 
 of Westmeath vs. Westmeath, 1 Jacob's Rep. 126; 4 English 
 Chan. R. 55. 
 
 In the case of Titleyvs.Durand, 7 Price's Excheq. Rep. 577; 
 the court decided: "that a deed between husband and wife and 
 a trustee, covenanting to pay the wife an annuity in case she 
 should live separate and apart from him, is void, as being a deed
 
 230 REPORTS. 
 
 made in contemplation of a future separation, and is therefore con- 
 trary to the policy of marriage; and that a plea, to an action of 
 covenant upon such a deed, lhat the parties afterwards lived 
 together, is a good plea; and that a deed could not be made pro- 
 viding for a future separation of husband and wife. 
 
 In the case of Marshall vs. Rutlon,8 T. R. 545, Lord Kenyon 
 says: "An agreement to live separate, is u contract supposed to be 
 made between two persons who in law are but one, and on that ac- 
 count are not able to contract with each other, which sweeps away 
 the whole foundation of their legality, and consequently, the whole 
 superstructure must fail. This objection meets the plaintiff in 
 limini. Suet a contract cannot be valid, which has for its object 
 the contravention of the whole policy of the law relating to domes- 
 tic life." 
 
 In the case of Warrall vs. Jacob, 3 Merivale, 268, the Master 
 of the Rolls said : " The court will not carry articles of separation 
 into execution; and that such deeds are void." 
 
 In the chancery suit of Westmeatk vs. Westmeath, 1 Jacob, 
 126-4 i, before cited, the Lord Chancellor says: "If the question- 
 whether the court would or would not enforce articles of this sort 
 were not pre-judged by any decision, I should say, I think no court 
 ought to act on them." 
 
 The Chancellor, in Rogers vs. Rogers, before cited, says: "In 
 looking over the cases, which are extremely well collected in Ro- 
 per, I perceive that it seems to have struck every one as extraor- 
 dinary, that such deeds should ever have been supported. The 
 law has imposed upon husband and wife duties of the most sacred 
 nature, that no court should allow them to disregard." 
 
 The same doctrine is held in many other cases, not deemed ne- 
 cessary now to refer to. The current of authorities, supported by 
 the soundest reason, is against the validity of such deeds, and sus- 
 tains the case of the appellant in the cause under consideration. 
 
 BURNETT, for appellees: 
 
 The distinction does not seem to have been drawn between 
 deeds of separation and deeds to secure a separate maintenance- 
 nor between contracts for a separation that has actually taken 
 place, and contracts providing for a future separation. 
 
 Deeds of separation and for separate maintenance, were for- 
 merly sustained, almost without limitation or restriction, in the 
 courts, both of law and equity, in England. One of the oldest
 
 REPORTS. 231 
 
 cases in the books, is that of Gawden vs. Draper, 2 Ventr. 217, 
 decided in 1690. Thai was an action of covenant on an inden- 
 ture, whereby the defendant covenanted that his wife should live 
 separately and apart from him until both should give notice in 
 writing, attested by two witnesses, to cohabit again, and that dur- 
 ing the separation he would pay the plaintiff 300 per annum, in 
 quarterly payments, for his wife's maintenance. The action was 
 brought to recover 75 for one quarter of the annuity then in 
 arrear. The defendant pleaded m bar a subsequent indenture 
 between the defendant and wife of one part and the plaintiff of 
 the other, which, reciting the first indenture, and that the defend- 
 ant and his wife did then cohabit, and that it was the true intent 
 and meaning of ail parties that so long as they did cohabit the said 
 annuity should cease; it was therefore covenanted by the plaintiff 
 that so long as the defendant and wife should cohabit, the defend- 
 ant should be saved harmless from the said annuity, and might re- 
 tain it, and averred that ever since the last indenture they did co- 
 habit. The plaintiff replied that they did not cohabit modo et 
 forme, &c. ; to which the defendant demurred. The court deci- 
 ded that unless the cohabitation was according to the first inden- 
 ture, it was no bar to the action, and gave judgment for the 
 plaintiff. 
 
 It was ruled by Lord Holt, C.J. in the case of To dd vs. Stokes, 
 1 Salk. 116, that where a husband and wife part by consent, and 
 he secures to her a separate maintenance, and pays it according 
 to agreement, he is not answerable for necessaries furnished her. 
 The same doctrine was recognized in the more modern case of 
 Nurse vs. Craig, 5 Bos. & Pull. 148. These decisions can only 
 be sustained by acknowledging the validity of the contract for se- 
 parate maintenance. 
 
 The courts of common law went so far upon this subject, that 
 the King's Bench, in the celebrated case of Corbctt vs. Poclnitz, 
 1 T. R. 5, decided, in the time of Lord Mansfield, that a/cmc co- 
 vert, living apart from her husband by deed of separation, and 
 having a large maintenance settled upon her, beyond the control 
 of the husband, might contract, sue and be sued as a feme sole. 
 This decision was in 17S5, and was considered, so far as it estab- 
 lished the powers of the wife to act as zfcmc sole, as a dangerous 
 innovation of the ancient law; and its authurity was assailed from 
 time to time, until, in the case of Marshall vs Rutton, 8 T. R.
 
 232 REPORTS. 
 
 545, the Court of King's Bench decided, in 1800, that a feme co. 
 vert could not contract, and sue and be sued, as a. feme sole, 
 
 though she be living apart from her husband and have a separate 
 maintenance secured to her by deed. Tint the only way in which a 
 separation can be safe and effectual is, by having recourse to trus- 
 tees, in whom the property of which it is intended the wife shall 
 have the disposition, may vest, uncontrolled by the husband, and 
 it would fall within the province of a court of equity to enforce 
 such a trust. It will be perceived that the point decided in the 
 latter case, which is one referred to by the appellant, was not on 
 the validity of any deed for a separation or separate maintenance, 
 but on the effect of such a deed; whether the wife, under it } 
 could act, sue and be sued, as a feme sole. 
 
 Afterwards, the case of Rodney vs. Chambers, 2 East. 283, was 
 decided in the King's Bench in 1802. That was an action of co- 
 venant by the trustees, upon a deed, which provided, among other 
 things, that in case of a future separation of the husband and wife, 
 with the consent of the trustees, the husband should pay to the 
 trustees 200 per annum in trust for the wife for life. The de- 
 claration averred separation with the consent of the trustees, and 
 that the annuity of '200 for one year was in arrear and unpaid. 
 The point at issue submitted to the court, was, whether such a co- 
 venant was valid and effectual; it being contended there, as it is 
 here, that it was contrary to the policy of the law, and subversive 
 of good morals. But the court, after a full review of the authori- 
 ties, gave judgment for the plaintiffs. 
 
 In Lord Vane's case, 13 Ejst. 171, the parties had separated, 
 and afterwards agreed to cohabit together, upon which occasion, 
 articles were entered into, by which he covenanted, that if she 
 should afterwards desire to live apart from him, he would not mo- 
 lest her. After this, in consequence of ill treatment, they sepa- 
 rated a second time, and upon articles of the peace being exhib- 
 ited against him, the validity of the deed was not questioned by 
 the court. 
 
 In later cases, it has been decided, that in actions on deeds for 
 separate maintenance, brought by trustees against the husband, it 
 is no bar to the action to plc.-id that the wife hud committed adul- 
 tery. 2 Bint. &, C. 517; S Bing. 250; and also the case of Field 
 vs. Scrrars, M. T. 1801, 1 2V II. 121. 
 
 Chancellor Kent, (2 Com. 135,) says, that the rule laid down in
 
 REPORTS. 233 
 
 Todd vs. Stokes, and Nurse vs. Craig, (before referred to,) was 
 adopted in all its parts by the Supreme Court of New York, in 
 Baker vs. Barney, 8 John. Rep. 72. 
 
 ]n Fcnner vs. Lewis, 10 John. Hop. 38; where the husband and 
 wife had agreed to articles of separation, and a third person be- 
 came a party to the instrument, as the wife's trustee, and provi- 
 sion was made for her maintenance and the enjoyment of separate 
 property, it was held, that the declarations and admissions of the 
 wife in relation to the property, were adrnissable evidence in fuvor 
 of the husband, in an action against the trustee upon his covenant 
 in the deed. Now, it follows, that the declarations of the wife 
 could not be evidence for the husband, unless the deed of separa- 
 tion was valid, at least so far as the property and maintenance 
 were concerned. See also, the case of Shelthar vs. Gregory, 2 
 Wendell, 422. 
 
 The early decisions in chancery went as far as those in the 
 courts of law. In Nichols vs. Darners, 671, the defendant^ 
 having ill-treated his wife, gave her a note that if lie should again 
 ill-use her she should have her share of her mother's estate to her 
 own use; and upon the happening of subsequent ill-tieatment by 
 the husband, the wife and her brother filed a bill against him for 
 that purpose, and the Lord Keeper decreed the interest to her for 
 life for her maintenance, and afterwards to the husband for life, 
 and the principal to the issue, if any; and if none, to the survivor 
 of the husband and wife; and he remarked, that the words in the 
 note, " in case he should again ill-use her,' 1 must have meant, " ia 
 case she should be obliged to live separately from him." 
 
 In some of the early cases, articles uf separation were specifi- 
 cally enforced; Gilb. Eq. Rep. 15~, 3, and in the case of fruthvs. 
 Gulh, 3 Bro. 04, it was determined, after great consideration, that 
 articles of separation may be specifically inforced at the suit of 
 the wife, although the husband offered, by his answer, to receive 
 her again. The validity of a deed of separation, and for separate 
 maintenance, was sustained in th? case of Moore vs. Moore, 1 
 Atk. 277, and it may be inferred from the judgment of Lord Hard- 
 wick, in that case, that he considered an agreement for a separa- 
 tion in prospective to be good. 
 
 In Cook vs. Wiggins, 10 Vesoy, 191, it was said that there was 
 no doubt of the general jurisdiction of a court of equity to decree 
 a specific performance of articles be I ween husband and wife for 
 
 no
 
 234 REPORTS. 
 
 separation and separate maintenance. See also, 11 Ves. 537. 
 10 Ves. 63. 
 
 In Reade vs. Livingston, 3 John. C. R. 481, it was held, that 
 a voluntary settlement, after marriage, upon the wife and children, 
 was void as to creditors at the time of the settlement; but if the 
 husband be not indebted at the time, such settlement is valid 
 against subsequent creditors; and Chancellor Kent says that this 
 was ihe true doctrine of that case, deduced from the English 
 authorities. 
 
 We know that the old decisions have, in many points, been 
 overruled by more modern cases, and that the court of chancery in 
 England, and perhaps in some of the States, has of late years gone 
 to the utmost stretch of power and authority to limit and restrict 
 the operations of deeds of separation and for separate mainten- 
 ance. But no authority, ancient or modern, can be brought to set 
 aside the deed in this case, at the suit of the husband. There is 
 not a case to be found where the principles of this bill have been 
 decreed in chancery, and none of the cases cited by the appellant 
 go that length. 
 
 In Carson rs. Murray and others, 3 Paige's Ch. Rep. 483, one 
 of the cases relied upon, the Chancellor sustained the validity of 
 the deed, and the portion of his decision that has been read mili- 
 tates nothing against the deed in this case. He only says, that 
 an agreement fora separation cannot be supported, unless ihe se- 
 paration has previously taken place, or is immediately to happen; 
 and that if the parties afterwards cohabit or live together, the 
 agreement will be rescinded. 
 
 In the case of Warrall vs. Jacob, 3 Merivale, 25G-G8, one of 
 the cases referred to by the appellant, Sir William Grant, Master 
 of the Rolls, only decided, that chancery would not carry into ex- 
 ecution articles of agreement between husband and wife; but he 
 admitted that agreements between the husband and a third per- 
 son as a trustee, though originating out of, and relating to a sepa- 
 ration, were valid, and might be enforced in equity. And Lord 
 Eldon, who always entertained and expressed the greatest repug- 
 nance to such deeds, said: that, if the question was res Integra, 
 untouched by dictum or decision, he would not have permitted 
 such a covenant to be the foundation of a suit in equity. But 
 dicta have followed dicta, and decision has followed decision, to 
 the extent of settling the law on this point too firmly to be now 
 disturbed in chancery.
 
 REPORTS. 235 
 
 The decisions of the English ecclesiastical courts have no au- 
 thority in this country, nor are they binding on the courts of law 
 and equity in England. But if they were, what do the case of 
 Westmeath vs. Westmeath, and Mortimer vs. Mortimer, from Hag- 
 gard, amount to? Simply, that in their proceedings to restore mar- 
 ital rights, to force persons to live together, whatever may be the 
 repugnance of one of the parties, a deed of separation is no bar in 
 such case. 
 
 The deed in Lord Westmeath's case provided for a future sepa- 
 ration; and he filed his bill in chancery to have the deeds deliv- 
 ered up and cancelled, and to enjoin the opposite party from pro- 
 ceeding at law upon them: yet, although Lord Eldon argued 
 against the law' throughout his decision, he admitted that it was 
 so firmly settled that he had no authority to rescind the contract 
 or to enjoin the parties from proceeding at law upon it. 
 
 The case of Titley vs. Durand, decided in the exchequer by 
 Abbott and Dallas in 1819, only went thus far: that a contract 
 for a future separation of husband and wife is void. It did not 
 touch the principles of this case. 
 
 The court will look at the principles that have been decided in 
 the cases, and not take the arguments of the Judges and Chan- 
 cellors, as authority in deciding this case. Some of those argu- 
 ments, if admitted as authority, are sufficient to overturn the 
 whole system of the law upon this subject as it has stood for more 
 than two hundred years. 
 
 The principles to be deduced from all the authorities; principles 
 which, perhaps, no court of law or equity would doubt any where 
 as law at this day, are these: First: That a contract between a 
 husband and wife, without the intervention of a trustee, is void. 
 Second: That a contract with a trustee, providing for a future sep- 
 aration, is also void. Third: That a contract with a trustee, cov- 
 enanting for the separate maintenance of the wife, where the sep- 
 aration has previously taken place, is valid both at law and in 
 equity, and may be enforced even though the husband is willing 
 that the wife should return to him again. And fourth: That sub- 
 sequent cohabitation will rescind a valid deed made to a trustee. 
 
 Now, to apply these principles to the case under consideration. 
 The bill and the deed show, that it is not a contract for separation, 
 but a contract to secure a separate maintenance; that the separa- 
 tion had existed for years when the deed was executed; that the
 
 236 REPORTS. 
 
 confract was made with a trustee mutually chosen, and the cove- 
 nants are made to him. No cohabitation has taken place since 
 the exectuion of the deeds. The separation is not a part of the 
 contract, and is only referred to by way of recitation, and there is 
 no covenant in relation to it; and although it is the reason that 
 led to the contract, it is not stated as the consideration. The con- 
 sideration expressed is the husband's liability to provide for the 
 support of his wife. The bill charges that the deeds were with- 
 out any sufficient consideration, but this is not supported by the 
 facts set up. Beside his legal liability to support his wife in & 
 suitable manner, an action at law was compromised by the deed, 
 and the cause of action released. The compromise of a suit is a 
 good consideration, for a promise, although there may have been 
 no just cause of action. The strictest tests may be applied, the 
 strongest authorities may be brought in review and these deeds 
 will be found not to be in contravention of any decision that has 
 been given. 
 
 Opinion of the Court, by Judge IKVIN: 
 
 This is an appeal from Crawford county. 
 
 Joseph Rolette, (the complainant,) filed his bill in the District 
 Court of Crawford county, at its May term for 1841, from which 
 it appears, that the said Joseph Rolette, and Jane Rolette, his 
 wife, nnd Bernard VV. Brisbois, as trustee, (the parties herein 
 named,) entered inlo an agreement for the separate maintenance 
 of the said Jane, by which an annuity was settled upon her during 
 her life, the payment of which was secured her by bond and mort- 
 gage. The object of the bill in this case is. to set aside and can- 
 cel that deed for separate maintenance, as well as 4he bond and 
 mortgage, for the reason that the said deed, bond and mortgage 
 were made without any legal or adequate consideration; "and 
 with a view to accomplish an illegal object, which the said par- 
 ties had no right to assume upon themselves to accomplish, and 
 the same is contrary to the laws of the land, and the salutary cus- 
 toms and usages of society, and ought to be set aside. 1 ' To this 
 bill, a general demurrer was filed, which, upon argument, was 
 sustained by the District Court, and from which decision aa ap- 
 peal was taken to this Court. 
 
 When this deed, which is made a part of the bill, is examined, 
 it is found to be stricdy such as is sanctioned and sustained by 
 the authorities.
 
 REPORTS. 237 
 
 In support of the bill, the counsel relied G.I the case of Rogers 
 vs. Rogers, 4 Paige's N. Y. Chancery Rep. 516. au<] the authori- 
 ties therein cited; Wcstmcalh vs. \Veslmeath, 4 English Eccl. 
 Rep. 238 ; Mortimer vs. Mortimer, sa me, 543 ; Carson vs. Murray, 
 3Paige,4S2; 11 Vesey, 530; 8 Term Rep. 2 Story's Equity, 
 652,3,4; 1 Chilly's Practice, 58, &c. 
 
 In resistance of this bill, and in support of the demurrer, the 
 counsel for the defendants relied on 4 Pelersdorff's Abridgment, 
 85; Cook vs. Wiggins, 10 Vescy, 191; Rodney vs. Chambers, 
 2 E;ist. 105; Gawden.vs. Draper, 2 Venlr. 217; Moore vs. Moore, 
 1 Atkins, 272; Lord Vane's case, 13 East. 171; Fenncr vs. 
 Lewis, 10 John. Rep. 38; Baker v&. Barney, S John. Rep. 483; 
 Carson vs. Murray and others, 3 Paige's Chancery Rep. 483; 2 
 Kent's Com. 161 ; and Shelthar vs. Gregory, 2 Wendell, 422. 
 
 The deed herein set forth is not a deed for the separation of tho 
 plaintiff and his wife, and which, as such, would have been there- 
 upon obnoxious to many of the authorities cited by the counsel 
 for the complainant, but is a deed for the separate maintenance of 
 the wife, made and entered into many years after the separation 
 had taken place. Such deeds being allowable, and when entered 
 into sustained by the courts, we can see no objection, from any 
 thing which arises out of the nature of this contract, to the 'deci- 
 sion of the District Court. 
 
 If there be anything in this particular case to be objected to in 
 support of the bill, it must arise out of the deed itself, but which, 
 as we have already said, upon examination, we find to be strictly 
 such as is sanctioned and sustained by the authorities. We there- 
 fore think the decision of the District Court right, and affirm the 
 same with costs. 
 
 EASTMAN, for appellant. 
 
 BURNETT, for appellees.
 
 TABLE OF CASES. 
 
 Agan and McLaughlin vs. Commissioners of Grant County, - 52 
 
 Barker vs. Bryant, ........ 145 to 147 
 
 Barber ads. Hyde, 148 to 150 
 
 Bevans nds. Slaughter, 195 to 207 
 
 Bicknell ads. Brown, - - 65 to 68 
 
 Bird vs. Fake & Cotton,, 131 to 142 
 
 Bloou.er ads. Hill, 123 to 127 
 
 Bracken ads. Parkison, - - - - - - - 13 to 21 
 
 Bracken vs. Preston, -- 220 to 226 
 
 Bracken ads. Gear, ........ 88 to 91 
 
 Brisbois & Rolette vs. Rolette, ..---. 226 to 237 
 
 Brown vs. Bicknell, 65 to 68 
 
 Bushee rs. Wright, - 112 to 117 
 
 Bryant ads. Barber, - 145 to 147 
 
 Bankruptcy, McKisson in------- 118 
 
 Coon vs. Stevens, 212 to 215 
 
 Clark &. Jones vs. Gilbert, - - >. - - - .. 207 to 211 
 
 Clark & Jones ads. Haney, ...... 142 to 145 
 
 Cotton & Fake ads. Bird 131 to 142 
 
 Commissioners of Grant county ads. Agan & McLaughlin, 52 
 
 " " " Gardner & Whitaker, 48 to 52 
 
 Colton ads. Fowler, 175 to 184 
 
 Cox vs. Gi-oshong, -- 150 to 158 
 
 Cutler adi. Gale, 92 to 99 
 
 Daws vs. Glasgow, -------- 8 to 12 
 
 Doty, Jones &. Irwin ads. Strong, 3 to 7 
 
 " ' " vs. " 158 to 174 
 
 Fake & Cotton ads. Bird, .... - 131 to 142 
 
 Fowler vs Colton, 175 to 184 
 
 Gale M. Cutler, - 92 to 99 
 
 Gardner & Whitaker vs. Commissioners of Grant county, 48 to 52 
 
 Gear vs. Parish, - 99 to 111 
 
 Gear vs. Bracken, - - - * - - - - 88 to 91 
 
 Gilbert ad*. Clark & Jones, - - 207 to 211 
 
 Glasgow ads. Daws, -...---- 8 to 12 
 
 Haney vs. Clark & Jones, - - 143 to 14!i 
 
 Hrvtch ads. United States, 22 to 32 
 
 Hill rs. Bloomer, - - - 123 to 127 
 
 Hyde vs. Barker, ------ 148 10 150
 
 PACKS. 
 
 Irwin, Jones & Doty ad*. Strong, 3 to 7 
 
 <.<. M . - - - - - - 158 to 174 
 
 Jones rs. Webster, 199 to 195 
 
 Jones & Clark ads. Haney, ] 42 to 145 
 
 vi. Gilbert, 207 to 211 
 
 King:, ex parte 46 to 47 
 
 Legate fldr. Welden, 127 to 131 
 
 Low ads. Merrill, 59 to 64 
 
 Low vs. Merrill, 185 to 189 
 
 Lockwood ads. United States, 215 to 220 
 
 Lynn ads. Scow-Boat, 78 to 82 
 
 Merrill vs. Low, 59 to 64 
 
 Merrill ads. Low, 185 to 189 
 
 Morrison vs. Renm, * - 83 to 88 
 
 Me Kim ads. Pavkison, - - 53 to 59 
 
 McKisson, in bankruptcy, 
 
 Me Laughliii & Agan vs. Commissioners of Grant county, - 52 
 
 Noycs vs. Hatch, 22 to 32 
 
 Norton ads. Rookcr, 33 to 46 
 
 Parkison vs. McKim, 53 to 59 
 
 Fariiisonrj. Bracken, - - .13 to 21 
 
 Parish ads. Gear, 09 to 111 
 
 Preston ads. Bracken, - 220 to 22S 
 
 Ream ads. Morrison, 83 to 88 
 
 Rowen rs. Taylor, - - - - - - - - 74 to 77 
 
 Rolette vs Rolette &, Brisbois, ------ 226 to 237 
 
 Hooker vs. Norton,, 33 to 46 
 
 Sal tor ads. United States, 119 to 123 
 
 Stevens vs. Coon, 212 to 215 
 
 Slaughter vs. Buvans, 195 to 207 
 
 Stone rs. Tolle, - - - - - - - - - 68 to 74 
 
 Strong rs. Doty, Jones & Irwin, ----- 3 to 7 
 
 ads. " " 158 to 174 
 
 Scow-Boat vs. Lynn, - 78 to 82 
 
 Taylor ads. Rowen, - - 74 to 77 
 
 Tolle vs. Stone, G to 74 
 
 United States r. Salter, - - 119 to 123 
 
 rs. Hatch, ------- 22 to 32 
 
 I-.T. Lockwood, 215 to 220 
 
 Webster ads. Jones, 190 to 195 
 
 Wi-lden rs. Lrgate, 127 to 131 
 
 Wright ads. Huslicc. - - - - - - - - 112 to 117 
 
 Whiiakur &- Gardner vs. Commissioners of Grant county, - 48 to 52
 
 001 164 359