REPORTS.

Cases decided by the Supreme Court of Wisconsin at the July Term, A. D. 1841.

[REPORTED BY T. P. BURNETT, REPORTER FOR THE TERRITORY.]

SYLVESTER W. DUNBAR, Error to the District Court for Milwau

VS.

JOSIAH S. BREESE

kee county.

An indorser of a promissory note is not a competent witness on a trial between the indorsee and the maker, to prove that the note was void, on account of a failure of consideration, or for the illegality of the consideration.

Breese brought an action of assumpsit in the Milwaukee district court against Dunbar, upon a negotiable promissory note, executed by Dunbar to one James Sanderson, and endorsed by Sanderson to Breese. On the trial, Dunbar offered Sanderson as a wit ness to prove that the consideration of the note upon which the suit was brought was fraudulent bank notes, which were of no value; that the note was an accommodation note, given in fact to Breese himself, who paid said fraudulent bank notes for it, and that it was void in its inception. The plaintiff objected to the competency of Sanderson as a witness; which objection was sustained, and the witness excluded by the court below. A verdict and judgment were rendered in favor of the plaintiff; to reverse which the defendant below has prosecuted this writ of error. Chief Justice Dunn delivered the following opinion of the

court:

This case is brought into this court by writ of error to the judgment of the district court of Milwaukee county, at June term, 1841. The suit in the district court was brought by Josiah S. Breese, defendant in error and plaintiff below, against Sylvester W. Dunbar, plaintiff in error and defendant below, on a promissory note, given by Dunbar to one James Sanderson, and by him indorsed to the plaintiff, Breese.

On the trial, the defendant, Dunbar, offered Sanderson, the indorser, as a witness, to shew the consideration of the note, and that it was void in its inception, who was rejected by the court. Exception is taken to this opinion, and the question in this court is, did the district court err in rejecting Sanderson as an incompetent witness?

In Walton vs. Shelly, 2 Term Rep. (opinion by Lord Mansfield) the court decided, that although, on the ground of direct interest in the result of a suit by the indorsee against the maker, the indorser of a note might be a witness, yet upon the ground of public policy he was incompetent and should not be admitted. And this was the rule of decision for many years in England, until in Jordaine vs. Lashbrooke, 7 Term kép. 601, Lord Kenyon delivered the opinion of the court, reversing the doctrine in Walton vs. Shelly, for the reason, that a higher public policy authorized a different rule. What this paramount policy was, is not satisfactorily stated by the learned judge. The law, as settled in Jordaine vs. Lashbrooke, is the rule of decision in England. In this country, the decisions are conflicting. In New York, in Winton vs. Laidler, 3 Johnson's Cases, 185, the rule in Walton vs. Shelly was adopted. Some years after, the rule was reversed, and the doctrine of Jordaine vs. Lashbrooke, adopted. But the rule, that a party to a negotiable instrument shall not be permitted to impeach it, is fully adopted in New Hampshire, Massachusetts, Pennsylvania, and it would seem, in Virginia and South Carolina: vide Houghton vs. Page, 1 N. Hamp. Rep. 60; Warren vs. Merry, 3 Mass. Rep. 27; Parker vs. Lovejoy, 3 Id. 365; Churchill vs. Suter, 4 Id. 156; Barker vs. Prentiss, 6 Id. 430; Jones vs. Coolidge, 7 Id. 199; Manning vs. Wheatland, 10 Id. 506; Hartford Bank vs. Barry, 17 Id. 94; Packard vs. Richardson, et al., 17 Id. 122; Knight vs. Putnam, 3 Pick. Rep. 184; Stills vs. Lynch, 2 Dallas 194; Republica vs. Ross, 2 Id. 242; Shaw vs. Wallis, 2 Yeats 17; Hepburn vs. Cassell, 6 Serg. & Rawle 113; Bank of Montgomery vs. Walker, 9 Id. 229; Wilson vs. Lennox, 1st Cranch 194—202 n. The true meaning of the rule in Walton vs. Shelly is, that a party, after having given currency to negotiable paper, shall not

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be permitted to invalidate it, nor to impair it as a security, nor to change the liabilities of the parties respectively, contrary to the tenor and form of the paper and the indorsements thereon, to the prejudice of the holder. A party to such an instrument is not admitted to testify to facts which may show that the plaintiff is not such a holder as is protected, so as to let in his testimony afterwards to invalidate the note. Gest vs. Espy, 2 Watts 265. £ The weight of authorities, strengthened by the soundest reasoning, seems to sustain, fully, the true meaning of the rule in Walton vs. Shelly; and this court is of opinion that the decision and judgment of the district court of Milwaukee county, rejecting Sanderson, the indorser, as an incompetent witness, be affirmed with costs, in favor of Breese, the defendant in error and plaintiff below.

J. E. ARNOLD, for pltff. in error.

H. N. WELLS, for deft. in error.

CHARLES KENSLER,

vs.

PETER BRUNETT.

Error to the District Court for Brown County

The statute, in prescribing the manner of taking appeals from the decisions of justices of the peace, does not require that the appellant shall pay any portion of the costs, except the justice's fees, before taking his appeal.

Where an appeal from a justice of the peace, has been taken, and no recognizance, or a defective one entered into, it cannot avail the appellant to offer to file a sufficient recognizance in the district court; the statute must be complied with by actually filing such recognizance and paying costs before the motion to dismiss is disposed of, or the appeal must be dismisssed.

This cause was originally commenced by Brunett against Kensler, before a justice of the peace for Brown county, and was removed by a change of venue before another justice, previous to the trial. Brunett obtained a judgment before the justice, from which Kensler appealed to the Brown district court. The district court dismissed the appeal upon motion, (for reasons which appear in the opinion,) and the plaintiff in error, who was defendant below, has prosecuted this writ of error to reverse the judgment of the district court dismissing his appeal.

Judge Irvin delivered the following opinion of the court:

This cause came up upon errror to the decision of the district court of Brown county, pronounced at the May term for 1841, on a bill of exceptions taken thereto and made a part of the record.

The cause originated before a justice of the peace, J. G. Knapp, and was afterwards, upon a change of venue, tried before Thomas Lee, another justice, when a jury was demanded and had, who gave a verdict in favor of the plaintiff for eight dollars. It appears that the defendant then paid the following fees, to wit;

(Not so marked, but we presume the figures stand for dollars and cents,) but the fees of the witnesses were not paid, and after the payment of the fees as above stated, defendant gave notice of, and took an appeal to, the district court.

At the October term of said court for 1840, Peter Brunett, the plaintiff below, by his attorney, filed a motion to dismiss the appeal, for the following reasons to wit:

"1st. That the fees of the court below, or justices fees, were not paid first before the appeal was taken.

"2d. That there is no bail bond to be found among the papers returned to this court."

When it appears the said Kensler "offered to come into court and perfect said bond; which was not done." The said Kensle also offered to the court, the receipt of Thomas Lee, the justice who tried the cause below, for all the fees of the witnesses sworn in the case, dated May 26th, 1841, which was not received by the court. The court then sustained the motion to dismiss the appeal, "on the ground that the costs were not all first paid, and no recognizance as required by law, and exceptions noted;" to which decisions of the court, the said Kensler, by his attorney, excepted.

The errors assigned to said decision are:

1st. That the court erred in dismissing the appeal of Charles

Kensler, on the ground that all the costs of said suit had not been paid.

2d. That the court erred in dismissing the appeal on the ground that no recognizance or bail bond had been filed, as the party was. ready and so informed the court, to perfect his bond in any manner the court might direct.

3d. The said judgment of the court was contrary to justice and the laws of the land.

f

By the ninth article, (page 332 of Revised Statutes, W. T.) upon the subject of appeals from a judgment of a justice of the peace, it is, in the second section, provided that "no appeal shall be allowed, in any case, unless the following requisites be complied with:

1st. The appeal must be made within six days after the judgment is rendered.

2d. The applicant, or some person for him, together with one or more sureties, to be approved by the justice, must, within the time prescribed in the first clause of this section, enter into a recognizance before the justice, &c.

3d. The fees of the justice shall be first paid by such applicant." By the 12th section, it is provided, that "no appeal allowed by a justice shall be dismissed, on account of there being no recognizance, or that the recognizance given is defective, if the appellant will, before motion to dismiss is determined, enter, before the district court, into such recognizance as he ought to have entered into before the allowance of the appeal, and pay all costs that shall be incurred by reason of such default or omission."

The court is of opinion, that nothing more is intended by the provision of the law, that "the fees of the justice shall be first paid by such applicant," than that the fees of the justice only, and not those of the witnesses, or others shall be paid; for had the legislature intended to have embraced all the costs before the justice, it would have been proper to have so expressed it. The district court, therefore, erred in dismissing the appeal upon that ground, as it appears that the fees of the justice had been properly paid.

The court is further of opinion that the district court did not err