ance of which the same was to take effect, and

ation.

The judgment of the circuit court is affirmed.

ANDERSON and another vs. MORRIS.

Where, in an action against a vessel for seaman's wages, before a justice of the peace, the complaint, which was in writing and signed by the plaintiff, was verified only by the following jurat added thereto : "Subscribed and sworn before me, this, &c.," signed by the justice before whom said suit was brought, and the master of the vessel appeared and admitted a certain sum to be due the plaintiff, for which judgment was accordingly rendered: Held, that if there was a defect in the verification of the complaint, which would otherwise have been fatal, it was cured by the master's appearing and going to trial, without objection to the complaint.

ERROR to the Circuit Court for Racine County.

Anderson and Edwards sued Morris for negligence in allowing the schooner Amelia to be removed from his county, after he had lawfully taken possession of it, as sheriff, under certain legal proceedings, instituted by them against one Carswell, to recover possession of said vessel. On the trial, the plaintiffs, for the purpose of showing their title to the vessel, offered in evidence the following entry in the docket of a justice of the peace: "Henry Taylor vs. Schooner Amelia. Before J. H. Hinds, Justice, 1857, September 18. An affidavit of plaintiff taken and filed, and warrant issued against the schooner Amelia; warrant returned same day by deputy marshal Roberts; schooner Amelia attached and in his custody; Robert Tapling, the mas ter of said schooner, appeared for the vessel. The plaintiff offered the order of the master in evidence. The master admits that there is due the plaintiff for wages $29 35. Judgment is, therefore, rendered against the schooner Amelia for $29 35, with costs, &c. J. H. HINDS, Justice of the Peace." The defendant objected to the evidence, unless it was shown that the justice had jurisdiction. Objection overVOL XII-44

ANDERSON et al.

V.

MORRIS.

V.

June Term, ruled, the defendant excepting, and the entry read. The 1860. plaintiffs then offered in evidence the complaint in said acANDERSON et al. tion, which was signed by said Taylor, and to which was apMORRIS, pended the following: "Subscribed and sworn before me, this 18th of September, A. D. 1857. J. H. HINDS, Justice Peace;" to which the defendant objected, because it was not verified as required by the statute; and the court sustained the objection, the plaintiffs excepting. Said jus tice, as a witness for the plaintiffs, testified that Robert Tapling acted as master and captain of the schooner Amelia, and that on the trial of the case of Taylor vs. Schooner Amelia, he appeared on behalf of the vessel, and admitted that the amount for which judgment was rendered was due to the plaintiff; and that he also appeared in behalf of said vessel in four other cases in which suit was brought before him against her, and made a like admission in each case. The plaintiffs offered in evidence entries upon said docket, of the proceedings and judgments in said four cases, which were of the 9th and 10th of November, 1857. The same objections were made to the complaints in said cases, as to the complaint in the case of Taylor vs. Schooner Amelia, and the same ruling made and exception taken. Another witness also testified that said Tapling was master of the schooner Amelia in September, October and November, 1857.

The plaintiffs offered to prove that said vessel was sold under orders of sale, issued upon said judgments; and that they had bought the vessel from the purchaser at such sale, and also offered in evidence the record of their suit against Carswell, but the court excluded the evidence as immaterial, on the ground that the justice had no jurisdiction to render said judgments. The jury, under direction of the court, found a verdict for the defendant. Judgment on the verdict.

Paine & Millet, for plaintiffs in error, contended that the alleged irregularity in the verification of the complaint, did not affect the jurisdiction of the justice (R. S., 1849, chap. 116; 16 Wend., 36; Hilliard vs. Austin, 17 Barb., 141; Foster vs. Hazen, 12 id., 547; Rector vs. Drury, 4 Chand., 24); and that the defects were waived by the master's appearing and answering to the merits. Sec. 7, chap. 116, R. S., 1849;

2 Hill, 517, 657; 5 id., 120; 6 id., 44; 2 Pick., 591; 15 June Term, 1860. Ohio, 433.

V.

MORRIS.

Strong & Fuller, for defendant in error, contended that the ANDERSON et al. complaint was not verified by affidavit, as required by statute (R. S., chap. 150, sec. 4; chap. 125, sec. 19); that the verification should be essentially in the language of the statute (12 How. Pr. R., 64; 11 id., 374); that this being a special proceeding in rem, and giving the justice summary jurisdiction to a far larger amount than he has in other cases, and being intended to convey title, the jurisdictional defects could not be cured, and the rights of mortgagees, or others interested in the vessel, barred, by the master's appearing in the case, unless the statute was strictly complied with; and that the justice had no jurisdiction over the vessel. 5 Wis., 91.

By the Court, COLE, J. The principal objection taken to November 19. the complaint in the case of Taylor vs. Schooner Amelia, is, that the same was not properly verified. Sec. 4, chap. 116, R. S., 1849, declares that the complaint shall set forth the plaintiff's demand in all its particulars, and on whose account the same accrued. It shall be verified by the affidavit of the plaintiff, or some credible person or persons for him, and shall stand in lieu of a declaration. In the present case the complaint was signed "Henry Taylor," and a jurat was added in this form: "Subscribed and sworn before me, this 18th day of September, A. D., 1857. J. H. HINDS, Justice Peace." Now assuming that the complaint was not "verified by affidavit" in the manner required by the statute, still we think this irregularity was cured by the master's appearing in the action and going to trial on the merits. Sec. 7 provides that the master, owner, agent or consignee of the boat or vessel, may appear on behalf of such boat or vessel and plead to the action. The master, then, was fully authorized to appear for the boat, and if the complaint was not properly verified, he should have taken an objection to it on that ground, instead of proceeding to trial. Having proceeded to trial, the defect in the complaint-if there was one-must be deemed to have been waived. Ilsley vs. Harris, 10 Wis., 95; Bromley vs.

June Term, Smith, 2 Hill, 517; Malone vs. Clark, id., 658; Swartwout vs. 1860. Roddis, 5 Hill, 118; Koon vs. Mazuzan, 6 id., 44; Lamoure RICHARDS et al. vs. Caryl, 4 Denio, 370.

V.

GLOBE BANK.

The circuit court, therefore, improperly excluded the complaint offered in evidence. The irregularity in the complaint did not render it void. It contained all the necessary allegations to give the justice jurisdiction, and was sworn to, but not verified by a technical affidavit. It undoubtedly came within the spirit of the statute, if not within the letter, and the defect was cured by the master's appearing and going to trial.

The judgment of the circuit court is reversed, and a new trial ordered.

RICHARDS and others vs. THE GLOBE BANK.

A judgment was entered upon a note, under a warrant of attorney, which was s separate instrument, but upon the same sheet of paper as the note, and described the note correctly, except that it referred to the same as bearing even date with the warrant, while the warrant itself (which was filled up from a printed blank), was without a date: Held, that the judgment ought not to be vacated on the ground that the warrant did not sufficiently identify said note as the one on which judgment was authorized to be entered, it appearing that said note was the one intended to be described in the warrant.

A note made in this state, payable in New York, with interest at a rate allowed by the laws of this state, but not by those of New York, is not usurious, when the contract is made in good faith and not for the purpose of avoiding the usury laws.

Where a note made in this state by residents thereof, payable in New York, with interest at 10 per cent., was negotiated for money to be used in this state, and was purchased by a bank in this state, and sold by it in New York, and A, one of the makers of said note, when it was about maturing, made an arrangement in New York, with the president of said bank, (both being tem porarily in that city), in pursuance of which the other makers of said note executed in this state, to said bank, a new note for the same amount, with interest at the same rate, payable also in New York, and the bank thereupon forwarded said new note to New York to be signed by A, (who accordingly signed it in that city), and also forwarded its draft on New York to take up the old note, charging the makers of said note the current rate of exchange on said draft: Held, that the new note thus given was governed by the law of this state, and was not usurious because it provided for the payment of a higher rate of interest than was allowed by the law of New York.

Held, also, that inasmuch as said bank had ceased to be the owner of the first note, its charge of exchange upon the draft which was used to take up the same, did not render the transaction usurious.

June Term, 1860.

V.

APPEAL from the Circuit Court for Milwaukee County. This was an action by Richards, Smith, Garret Vliet, and Jasper Vliet, to vacate a judgment entered against them in RICHARDS et al. the circuit court for Milwaukee county, on the 10th of Octo- GLOBE Bank. ber, 1857, in favor of the Globe Bank. The following is the statement of the facts, as found by the judge of the cir cuit court: "First. The judgment complained of was for $5,000 and costs, and was entered upon a warrant of attorney to confess judgment. The note for the amount of which it was entered, is dated on the 7th of August, 1857, at Milwaukee, Wis., where it was actually executed by Richards and the two Vliets. It was delivered to the defendant at Milwaukee, Wis., by one Mason, the agent of the plaintiffs, executed as aforesaid, and then forwarded to New York (where it was made payable at the office of Wm. J. Bell & Co.) for the signature of Smith. The warrant of attorney which accompanied said note, was executed and delivered in precisely the same manner, and contains a correct description of said note-referring, however, to it as being of even date therewith, when its date is left blank, the same never having been filled up. They are both on the same piece of paper, but in different instruments, and are mostly printed blanks, the note for which judgment was confessed being the one intended to be described in the said warrant of attorney.

The

Second. The pleadings and testimony, I think, establish the following facts as to the origin of this note: The plaintiffs were the directors of the Milwaukee & Horicon Railroad Company, a Wisconsin corporation, operating a railroad extending from Milwaukee into the interior of the state. plaintiff' Smith was the president. The defendant is a banking institution, organized under the banking law of this state, and having its place of business in this city. On the 10th day of June, 1857, the plaintiffs made their promissory note for the same amount as the one in question, payable at the same place, to the order of said Smith, in sixty days. They negotiated it to one Clark, who sold it to one Asahel Finch, and from him the defendant purchased it. The bank sold it to W. J. Bell & Co., of New York, and at the time it was