THE facts in this case are stated in the opinion of the court. It was submitted on printed arguments by Mr. May, for the plaintiff in error, and Mr. Carlisle, for the defendants in error.
Mr. May's argument was as follows:
This case comes here by writ of error to the Supreme Court of Wisconsin Territory.
In the District Court of Iowa County, on the 3d of November, 1845, the plaintiff in error sued out his writ of attachment, in an action of debt against the defendants in error, founded on his affidavit (according to the law and practice of that territory).
The sheriff seized certain goods and chattels of one of the defendants, to wit, Legate, which, on motion, were ordered by the court to be sold.
The defendants, at the next term of said court, on the 4th of March, 1846, appeared by their counsel, and moved for a rule on plaintiff to file his declaration within three days, which was denied.
At the next term of the court, the plaintiff, by leave of the court, filed his declaration, containing three counts. The first upon a judgment against the defendants, recovered in the state of Illinois. The second on a bill of exchange, drawn by one of the defendants and accepted by the others. The third upon an account for goods, wares, and merchandise.
The defendants moved the court to strike out all the said counts except the first, on account of a variance, because the action was founded on the affidavit, which stated the judgment alone as the cause of action, which motion was granted; whereupon the defendants pleaded, and after several pleas, replications, and demurrers, issue was joined by agreement of the parties, and the cause tried by the court.
The plaintiff read a record of a judgment of the Circuit Court of Illinois.
The defendants then offered to read the record of the same case in the Supreme Court of Illinois (which showed a reversal of the judgment of the Circuit Court). The plaintiff objected to the offering of this record, because it was not properly authenticated, but the court overruled his objection, and he excepted.
Judgment was rendered for the defendants, by the District Judge.
Plaintiff moved for a new trial, and filed his reasons, which was denied.
The case was carried by writ of error to the Supreme Court of Wisconsin territory, where the judgment of the District Court was affirmed.
The plaintiff in error will contend here, that the judgment of the said Supreme Court ought to be reversed, because,--
First, the District Court erred in striking out the counts of the declaration as aforesaid, after defendants had appeared to the action. Statutes of Wisconsin concerning Attachments, § 7. Rowen v. Taylor, Wisconsin Reports, July term, 1842. He ought to have pleaded in abatement. McKenna v. Fisk, 1 How., 241; 11 Wheat., 280.
Second, the record of the said Supreme Court of Illinois was not duly authenticated, so as to be used as evidence in said suit, and ought not to have been received.
The certificate of Samuel H. Treat does not certify that the attestation of the clerk 'is in due form,' and styles him clerk of 'the State of Illinois.'
It appears also, on the face to the certificate, that the judge was 'an associate justice,' while the same record discloses that there was a 'chief justice' of said court. 1 Stat. at L., 122 (Act of May 26, 1790). 2 Stat. at L., 298.
Mr. Carlisle's argument was as follows.
The defendants in error were also defendants below. The action was commenced by attachment, in the District Court of Iowa County, Territory of Wisconsin. The affidavit of the plaintiff, dated 3d November, 1845, sets forth a debt 'arising out of, and based and founded upon, a judgment at law,' obtained three days before (31st October, 1845), in a county court of the state of Illinois. Pending the attachment, and before the plaintiff had declared, to wit, at the December term, 1845, of the Supreme Court of Illinois, the judgment upon which the attachment was founded was reversed. And this reversal having been pleaded and given in evidence on the trial of the attachment, in Wisconsin, the judgment was for the defendants.
The plaintiff carried the case, by writ of error, to the Supreme Court of the Territory of Wisconsin, where the judgment below was affirmed; and thence the case is brought to this court by writ of error.
The defendants in error will contend that there is no error in either of the points assigned.
1. As to the order to strike out the second and third counts in the plaintiff's declaration, it was addressed to the discretion of the court, and is not subject to be assigned for error. 1 Tidd, 559.
It was not excepted to in the court below.