SANFORD WILLIAMS, Plaintiff in Error, vs. HARVEY HOLMES, GEORGE WILBER, and CYRUS J. MITCHELL, Defendants in Error, 2 Wis. 129

By the Court, Smith, J. The instructions of the court below, in regard to the necessity for a petition to be signed by six freeholders, in order to give the supervisors jurisdiction to lay out a highway, leaves but a single point necessary to be examined here. But for the purpose of settling a rule of evidence which is often called in question on the trial of cases similar to the one at bar, we have thought it our duty to consider and determine the question raised upon the competency of the petition for the laying out of the road, as evidence.

On the trial, the defendants offered in evidence, a paper purporting to be a petition for the laying out of the road in question, which was signed by six per-. sons. The body of the petition represented the “undersigned ” to be “ freeholders and inhabitants of the town'of Harmony.” To the introduction of this paper in evidence, the plaintiff objected, on the ground that there was no proof that the persons whose names were signed to the paper, were freeholders of the town of Harmony7.

C01ir^ below overruled tlie obj ection, and admitted the paper in evidence, but afterwards permitted †-jjQ p}aintiif to show by proof that any or all of the persons wp0 signed the petitipn were not freeholders ; and finally charged the jury that if it appeared that any one of the six petitioners were not freeholders, the plaintiff would be 'entitled to recover on that branch of the case. The question here raised is, whether if is necessary that it should be affirmatively shown, that the petitioners were freeholders, before the petition would be admissible in evidence.

We think the petition of six freeholders of the town is necessary to give the supervisors jurisdiction of the matter of laying out and opening highways. As this is essential to their jurisdiction, and as it is necessary that the matters which give jurisdiction to inferior tribunals should affirmatively appear, and as such jurisdiction is not to be presumed, it is necessary that a strict compliance with the statute shall appear. Therefore, before the paper could serve the purpose of conferring jurisdiction upon the supervisors, it should be shown that the same is signed by six freeholders of the town.

A petition signed by others than freeholders, would be utterly nugatory. The property qualification of the signers is that which gives efficacy to the instrument. We think, therefore, that before such a paper can become legal evidence, it must be first shown that it is signed by the requisite number of freeholders of the town, and that it was error to admit it without such preliminary proof. It is incumbent upon the party offering evidence, to make his offer competent in the order in which, and at the time when, it is tendered.

In this case, the omis probandi vas on the side' of the party offering the petition, and the preliminary proof required as to the character of the signers was requisite, before he had a right to introduce the- paper in evidence.

On the trial below, the court permitted the defendants to prove that two of -the defendants were each the owner in fee of a separate and distinct parcel of land in the town of Harmony, and that the other was in possession of another parcel in the same town, and instructed the jury, “ that the defendants were entitled to a verdict, if they had proved that they were, at the time the trespass was committed, owners in fee, or otherwise possessed of any land in the town of Harmony, either jointly, or each in different parcels.” The court also on the trial rejected evidence offered by the plaintiff, showing title-and possession in himself, of the locus in quo of the trespass.

The declaration was a general court for trespass quare daumm, laying the locus in quo in the town of Harmony. The defendants pleaded the general issue, and gave notice among other special matters, “ that the locus 'in quo was the close soil and freehold of the defendants.” If the defendants had pleaded liberum lenementum, they would have driven the plaintiff to newly assign, or the proof of ownership in them jointly of any land in that town, would have entitled them to a verdict. But the effect of a notice is not the-same as that of a special plea in all respects. It requires no answer, as doés a plea.

It only prepares the way for the introduction of evidence which would have been inadmissible without a special plea or notice. But the plaintiff is entitled to meet the evidence introduced under the notice, by any testimony of matter which he might "iiave se^ up "by replication, liad tlie defendant pleaded special matter. By giving notice, the defendant waived all advantage of information which he might ^ave ¿ieiqye(j from the replication of the plaintiff!

Therefore, when the defendant; instead of pleading liberum tenementum to a- count in trespass, gives notice, and under the notice, proves his freehold, the plaintiff may newly assign by testimony proving the loma in quo, and his own title or possession. In case of a notice merely, the plaintiff cannot newly assign, and to deprive him of the light to prove his own soil and freehold, would be to compel him to set out the locus by metes and bounds in the first instance.

This, we think, would be giving an effect to a simple notice under the general issue, which the legislature never intended, and which the statute by no means warrants. On the other branch of the question under consideration, it is proper that we should also express our opinion. We think the Circuit Court erred in permitting the defendants to prove a several freehold or possession under their notice, and in instructing the jury that proof of such several freehold or possession entitled the defendants to a verdict.

The defendant • is held to his notice in the introduction of his evidence, as strictly as he is to a special plea, and it seems to be clear, that an allegation of a joint freehold will not allow proof of a several, nor proof of a several support a plea of a joint freehold. 2 Wm. Blackstone, 1089; 1 Dyer, 23; 1 D. & E 479-259. The defendants might have given their freehold, if such they had, in evidence under the general issue, in a court of record, (8 Term R. 403,) and before the justice, suck a plea could only have tke effect to move tke case to tke appellate court.

In tke appellate court, suck plea could only kave been interposed to compel tke plaintiff to new assign, and if tke defendant seeks to foil kis adversary by a resort to tke armory of special pleading, ke skould select a weapon witk a kilt as well as a blade. 11 East. 51-72; 1 Saund. 299; B. & C. 489.

If tkere be several defendants, each may plead separately liberum teúementum in kimself, or all may plead it in one, tke otker justifying under it as servants, or otkerwise a3 tenants, ¿fee. ■ But tke ckaracter of tke plea determines tke nature of tke evidence wkick is admissible to support it, and tke doctrine of variance applies kere in all its force, and as strictly in regard to a notice under tke general issue as to a special plea in bar. 1 Saunders on Pl. & Ev., 635-6-7; id. Tit. Variance.

We tkink, therefore, tkat tke Circuit Court erred upon tkis point, botk in its ruling as to tke admission of evidence, and in tke instructions -to tke jury. As to tke otker errors assigned, it seems tkat tke instructions of tke court to tke jury were correct, and it is unnecessary to consider them, further. Tke judgment of tke Circuit Court is reversed witk costs, and tke cause remanded for a new trial.