fendant the possession of the personal property described in the complaint, or $650, in case a delivery of said property cannot be had, and also that he recover $75 damages, together with $8.38 costs. The appeal is from the order denying the motion for a new trial, and from the judgment of the district court.

In the course of the trial below the plaintiff, having been on the witness stand and under cross-examination, was asked the following question: "What is the fair market value of those notes payable to your order, without your indorsement, in the market at Sioux Falls, at the time this suit was commenced?" To this question the plaintiff's counsel objected, and the objection was sustained by the court; to which ruling the defendant's counsel duly excepted, and this is the first assignment of error. Before our statute on the subJect in actions of trover or for the wrongful conversion of notes, the rule was well understood to be that the amount appearing to be unpaid upon the note of principal and interest at the time of the converslon, and the interest upon that aggregate from thence to the trial, was prima facie the measure of damages. See Decker v. Mathews, 12 N. Y. 313; St. John v. O'Connel, 7 Port. (Ala.) 466; Mercer v. Jones, 3 Camp. 477; Evans v. Kymer, 1 Barn. & Adol. 528; Allen v. Suydam, 20 Wend. 321, 335. In 2 Greenleaf on Evidence, § 276, it is said that in trover, "where the subject is a written security, the damages are usually assessed to the amount of the principal and interest due upon it." See, also, section 649. The defendant had the right to show in reduction the fact of payment in whole or in part, the inability of the makers to pay wholly or partially, a release of the makers from their undertaking, the invalidity of the note, or other matter which would legitimately affect or diminish its value. See Kennedy v. Strong, 14 Johns. 128; Cortelyou v. Lansing, 2 Caines, Cas. 199, 215. It is not in accord with common observation that always the value of a note is the amount at which it proclaims itself. Yet it is often so; perhaps more often than otherwise. So, as the rule of damages should be fixed and uniform, the current of the dicta of learned judges from earlier to later times was to allow the amount for which the note reads to be taken as its prima facie value, but to let the defendant be at liberty to show that which affected it and reduced its value. And formerly, in the action of replevin, there were `ontingencies which would force the same Issue,—the value of the note. Ingalls v. Lord, 1 Cow. 240; Tilden v. Brown, 14 Vt. 164; Älsager v. Close, 10 Mees. & W. 576. Accordingly, our Civil Code (section 1875) properly prescribes that, "for the purpose of estimating damages, the value of a thing in action is presumed to be equal to that of the property to which it entitles Its owner." The question in this case was not, therefore, the market value of the notes at Sioux Falls or other place, at the time the suit was commenced. The legal presumption is that they were worth the amount of principal and interest indicated on their face; and it was incumbent on the

defendant to rebut that legal presump tion in some of the modes above recognized and well established. There was consequently no error in the ruling of the court upon this point.

The plaintiff having rested his case, de fendant's counsel moved for a nonsuit" on the ground that the property came peaceably into defendant's possession, and no demand had ever been made for the same, which motion was denied by the court, and defendant duly excepted; and this forms the second assignment of error. Upon every principle the nonsuit was properly refused; but especially upon the ground that a peremptory nonsuit cannot, in this territory, be ordered against the will of the plaintiff. MARSHALL, C. J., in the case of Elmore v. Grymes, 1 Pet. 469, remarked “that the court has had the case under consideration, and is of opinion that the circuit court had no authority to order a peremptory nonsuit against the will of the plaintiff. He had a right by law to a trial by jury, and to have had the case submitted to them. He might agree to a nonsuit, but if he did not so choose the court could not compel him to submit to it" In the case of D'wolf v. Rabaud, also in 1 Pet. 476, Mr. Justice STORY, in delivering the opinion of the court, said that "after the evidence for the plaintiff was closed the defendant moved for a nonsuit, which motion was overruled. This refusal certainly constitutes no ground for reversal in this court. A nonsult may not be ordered by the court upon the application of the defendant, and cannot, as we have had occasion to decide at the present term, be ordered in any case, without the consent and acquiescence of the plaintiff." And in Crane v. Lessee of Morris, 6 Pet. 598, the same doctrine is reiterated, and declared not open for controversy. See Hyde v. Barker, 1 Pin. 305; Baxter v. Payne, Id. 501.

As to the question of damages the Civil Code (section 1832) provides for actual or compensatory damages to every person who suffers detriment from the unlawful act or omission of another, and such damages may be awarded in any judicial proceeding for detriment resulting after the commencement of the action, or certain to result in the future. The damages referred to in an action to recover the possession of personal property in section 228 of the Code of Civil Procedure, are actual damages, to-wit, for the detention. But this latter enactment does not abrogate section 1839 of the Civil Code, (the earlier law,) which declares that "in any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant." There was, then, no error in the course of the trial in the district court. But here in this court we have been confronted by an objection unheard of in any state of the proceedings below, that it is patent the verdict is so insufficient that no judgment could be rendered upon it. In Patterson v. U. S., 2 Wheat. 222, the supreme court laid down

Judgment being unauthorized, where all the material issues are not disposed of, can the error be urged for the first time in the supreme court? Upon principle and authority we are of opinion that it can. This point came up in Garland v. Davis, 4 How. 143, a defect having been discovered in the pleadings and verdict which was not noticed in the court below, nor even suggested by counsel in the supreme court of the United States. That court seems to have had no doubt about their power to consider the defect and to reverse the judgment. In Bennett v. Butterworth, 11 How. 674, TANEY, C. J,, said: This is a suit to try a legal title." The plaintiff "claimed in his petition a legal title to the negroes, which the defendant denies," etc. A jury was sworn, who found in the following words: "We, the jury, find for the plaintiff $1,200, the value of the four negro slaves in suit, with 6% cents damages. "Now," said the chief Justice, "If anything is settled in proceedings at law when a jury is impaneled to try the facts, it is that the verdict must find the matter in issue between the parties, and the judgment of the court must conform to and follow the verdict. But here the matter in issue was the property in these negroes, and the verdict does not find that they are the property of the plaintiff or the defendant. • It ought therefore to have been set aside upon the motion of elther party, as no judgment could lawful ly be entered upon it.

(3) a counter-claim. The plaintiff offered in evidence a copy of the note, which was objected to on the ground that the proof of loss was insufficient. The objection was sustained. The trial was to the court, and it found for the defendant on the counter-claim, but made no finding on the plea of want of consideration. Judgment was entered for the defendant, and the plaintiff appealed.

Wm. Pound and J. R. Gamble, for appellant. G. C. Moody, for appellee.

ment is evidently erroneous, and must be reversed. And as these errors are patent upon the record, they are open to revision here, without any motion in arrest of judgment, or exception taken in the district court." As therefore in this case the verdict is defective, în substance, the judgment of the district court is reversed, and a new trial awarded.

(1 Dak. 227 [218])

DOLE V. BURLEIGH,1

(Supreme Court of Dakota. Dec. Term, 1875.)

APPEAL-HARMLESS ERROR-REVERSAL.

1. In a suit on a lost note, the answer denied the "material allegations" of the complaint "in manner and form as therein set forth." The plaintiff offered in evidence a copy of the note, which was rejected on the ground that the loss had not been proved. Held, that the denial in the answer raised no issue, and that, while the proof of loss was sufficient, the error was imma terial, the execution and contents of the note being admitted by the pleadings.

In a suit on a note, the defendant pleaded want of consideration and a counter-claim. The record showed a trial by the court, and a finding and judgment for the defendant on the counter claim, but it was silent as to the plea of want of consideration. Held, that the omission of a find ing on that issue was error requiring a reversal, though the objection was not made in the trial

court.

Appeal from district court, Clay county. Suit on a lost note. Answer: (1) A denial of the "material allegations" of the complaint in manner and form as therein set forth; (2) want of consideration; and

1This case, filled at December term, 1875, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in the Dakota Reports from volume 1, p. 1.

of the note is admitted, not being denied, then the evidence offered of the loss of the note and its contents was merely cumulative, and it will not seriously be insisted that the rejection of cumulative evidence of a fact admitted upon the record would be error. This suggests the inquiry, does the answer controvert any material allegation of the complaint, except the want of consideration for the note? If not, the plaintiff was entitled to recover without the introduction of any testimony on his part; the want of consideration be ing a matter of defense. The respondent claims that the first paragraph of his answer, in the words following, is a general denial of every material allegation of the plaintiff's complaint: "The above-named defendant, Walter A. Burleigh, for answer to the complaint of the above-named plaintiff herein, says that he denies each and every material allegation thereof in manner and form as therein set forth." This is not a denial of the allegation in the complaint. The words, "in manner and form as therein set forth," qualify the preceding language, so that the denial only refers to the manner and form in which the plaintiff has stated his cause of action, and not to the substance of the ailegations in the plaintiff's complaint. This paragraph of the answer is clearly frivolous, and would have been struck out on motion, and judgment awarded to the plaintiff upon the pleadings, except that other portions of the answer and the reply present other issues. An answer which denies that the defendant made the promise in manner and form as alleged in plaintiff's complaint is but the assertion of a conclusion of law from certain facts.

Hendricks v. Decker, 35 Barb. 298. Tiff. & S. Pr. 37: "A general denial must be certain and positive." Tiffany then gives the following form: "The defendant denies each and every allegation of the plaintiff's complaint. Id. 369. I am aware there is a conflict of authorities as to whether using the word "material" in the denial would make the answer frivolous. There are authorities that hold that a denial in the following form is good: "The defendant denies each and every material allegation of plaintiff's complaint." I am unable to find one decision that will uphold or sustain the form of denial used by the pleader in this case.

Robbins v. Lincoln, 12 Wis. 1: A denial in the language of the complaint is not sufficient. It must be of the substance of the allegations of the complaint.

A

A denial of the indebtedness, without denying the alleged fact out of which the indebtedness arose, is merely a denial of a legal conclusion. Davison v. Powell, 16 How. Pr. 467; Risto v. Harris, 18 Wis. 400; Runals v. Brown, 11 Wis. 186. denial in an answer in the words of the complaint is not good. It is a negative It is a negative pregnant with an admission that the alleged facts may have transpired on some other day or under different circumstances. Schaetzel v. Insurance Co., 22 Wis. 412; Holden v. Kirby, 21 Wis. 149; Edson v. Dillaye, 8 How. Pr. 273. Under the Code a party may set up as many defenses as he chooses, but he cannot, by making repugnant allegations, compel the plaintiff, in order to avoid a denial in one part of the answer, to prove a fact admitted in another. The object of the Code was to compel the defendant to admit every part of the plaintiff's complaint which he could not conscientiously deny. Therefore any fact sustaining the plaintiff's case admitted in one part of the answer is to be taken as true for all purposes in the case, and the plaintiff is not bound to prove it. In this case the answer is a general denial; second, a justification; and it is held not well pleaded. Hartwell v. Page, 14 Wis. 49. Viewed in the light of these authorities, there was no error in rejecting the evidence of the plaintiff of the copy of the note declared on, or its contents.

The second question presented for consideration is this: The second paragraph of defendant's answer alleges that the note described in plaintiff's complaint was wholly without consideration. Thus a material issue is presented for trial. Upon that issue the court below did not find. This is apparent from an inspection of the record. That this was a material issue there is no question. That the court below omitted to find upon this issue was a fatal error will not be denied, if that question is properly here for review. The appellant, in support of his position, relies upon the decision in the case of Holt v. Van Eps, ante, 689, (decided at this term of court.) That was an action for wrongfully detaining personal property alleged to be the property of the plaintiff. The detention and ownership of the property were denied by the defendant. The jury found that the property was wrongfully withheld, or that the plaintiff was

The

entitled to the possession of the property, but did not find that the plaintiff was the owner of it. The omission to find was discoverable only from an inspection of the record. The court were unanimously of the opinion that the objection was well taken, and a new trial was ordered. In like manner the error in this case appears from an inspection of the record, and I do not see how it could be presented in any other way. It was suggested upon the argument by appellant's counsel that the attention of the court below should have been called to the necessity of finding upon this issue. But how could this have been done? The respondent could not have known that the court below had neglected to find upon this issue until judgment was pronounced, and I know of no authority that would justify the court below, after pronouncing judgment, to reopen the case and make an additional finding. That would, in legal effect, be no less than setting aside the judgment and rendering a different one. It should be observed that there is a material difference between an omission to find upon a material issue and an erroneous finding. The error in the case of omission is ascertained from an inspection of the pleadings and the finding; in the other, from an examination of the pleadings, the finding of the court, the evidence taken upon the trial, and the rulings and decisions of the court during the progress of the trial. In the latter case, therefore, the evidence and decisions of the court must be preserved, and brought before the appellate court for review, by a case made or bill of exceptions. I, therefore, come to this conclusion that such errors as are apparent from an inspection of the record must be determined by that inspection; that such as occur upon the trial, and such as are not apparent upon the record, can only be brought before this court by a case agreed upon, or bill of exceptions. The decision of the court in the case of Holt v. Van Eps must control our decision in this case. In the case of Thurber v. Jones, 14 Wis. 16, the court say: "We are of the opinion that the complaint in this case is clearly insufficient to support the judgment. As there is no bill of exceptions, of course we cannot look into what purports to be the testimony taken on the assessment of damages. We can only examine and pass upon the errors apparent upon the record. This we have done, and find that the complaint does not state facts sufficient to support the judgment." In the case of Davidson v. Davidson, 10 Wis. 86, the court say: "We do not find in the return made by the clerk of the circuit court any bill of exceptions or case embracing the testimony used upon the trial; and we, therefore, can only consider such errors as are apparent upon the record." The court say in Hays v. Kendall, 5 Wis. 132: "There being no bill of exceptions in this case, we can only notice such errors as appear upon the record." pear upon the record." The counsel for the plaintiff in error contends that the proof in the court below was defective or insufficient to warrant the finding of the court. If the objections had been properly taken and incorporated in a bill of excep