NELSON MILLETT, Plaintiff in Error, vs. ARVIDA HAYFORD, Defendant in Error, 1 Wis. 401

By the Com% Cbawfobd, J. This case comes before us by writ of error, to the County Court of Racine county. In that court, the defendant in error commenced an action of assumpsit against the plaintiff in error, to recover the amount due upon a promissory note, and a due bill, the former having been endorsed to the plaintiff in the action after it became due, and the latter being payable to bearer. The defendant filed a plea of non assumpsit, accompanied with a notice of set-off‘ as well against the plaintiff as against Samuel S.

Stevens, the payee and endorser of the promissory note, and the payee named in the due bill; and that the defendant would insist and prove on the trial, that the note and due bill were endorsed and passed to the plaintiff after maturity. An issue was joined on the plea, and upon this issue a trial was had by a jury, which resulted in a verdict and judgment for the plaintiff, for the sum of seventy-seven dollars and eighty-one cents, with costs.

The defendant afterwards filed an affidavit and motion to vacate the judgment for costs, and to render judgment for costs against the plaintiff, which motion was overruled, and thereupon a bill of exceptions was sealed and filed. The first error assigned is, that ths case was tried by a jury of six persons, and that

section sixteen, of

chapter eighty-six of the Revised Statutes, in so far as it limits the jury in the County Court to six persons, is unconstitutional. It is not incumbent upon us, in the present case, to examine and decide this question, because the plaintiff in error is not in an attitude to avail himself of it. By the seventeenth

section of the statute, the selection of the jurors is given to both parties, in the mode prescribed, and if either party refuse or neglect to take partin choosing the jurors, the court or the clerk may act for such party. "We are not informed by the record that the plaintiff in error made any objections to the jury, and we are to presume that he took

part in their selection, for if he did not demand the jury, and did not participate in selecting the jurors, it lies with him to show such a state of facts, and in the absence of any objection or refusal, we must presume that the plaintiff in error consented to submit his case to a jury, as allowed by the statute. Indeed, ifc does not appear by the record that the plaintiff in error himself did not demand the jury, as provided by the statute. Error is not to be presumed, but he who alleges it, must show it affirmatively. See Powell et al. vs. Sonnett et al., 3 Bingh. 381.

The second error assigned, relates to the admission in evidence of the docket of William S. Rice, a justice of the peace, to show “ a suit between Paine & Millett, plaintiffs, and Samuel S. Stevens, defendant.” The plaintiff in error objected to this evidence until it was shown that some of the items in that suit were comprehended in the defendant’s set off, which it appears was not the case. The court overruled the objection, and the defendant took an exception. Whether the docket was read in evidence, or what facts were shown thereby, we are entirely uninformed by the bill of exceptions.

The proceedings in the suit between Paine & Millett and Stevens may or may not have been pertinent to the issue; but before a party can avail himself of an objection to the ruling of the court in admitting or rejecting evidence, he must, by his bill of exceptions, set forth what the evidence admitted or rejected, was, in order to enable us to decide whether the court erred in its ruling. This has not been done in this case, and we cannot infer that the court erred in its decision on this -subject, in the absence of anything in the bill of exceptions to sustain the objection. (Warner vs.

Schreck, 2 Chand., 46.) The third error insisted upon, is that the court charged the jury erroneously, that the agreement of Stevens, the payee of the notes, to let the funds remain in Millett’s hands until Millett and Armour were released from a certain replevin bond which they had signed for him, could only be taken advantage of by plea in abatement or motion for nonsuit; or, when there were two notes, as in this case, to one of which the objection did not apply, by motion to strike out from the record the note to which it did apply.

It appeared in evidence, that the plaintiff in error (Millett) and one Armour had, before that time, signed a replevin bond, as sureties for Stevens, and that, as indemnity to them, Stevens had agreed to let the money which Millett owed to him, remain in his (Mil-lett’

s) hands. This indebtedness from Millett to Stevens was shown, by the testimony of James Kenzie, to be the same for which the promissory note, sued .upon, was given. It also appeared on the trial, that in the replevin suit of Stevens against Watkins and Carswell, a judgment for costs was rendered against Stevens, and that an execution for these costs had been paid and satisfied. We are inclined to think the court was correct in this instruction. Mr.

Chitty, in his work on Pleadings, ('yol. 1, page 453,) in defining pleas in abatement to'the action of the writ, holds that when the action is prematurely brought, it may be so pleaded, but that it is unusual to do so, as it would be ground of non-suit on the trial, or of demurrer, if it appeared in the declaration. The agreement relied upon was, in effect, an extension of time for payment; so that, if the action were brought before the release of Millett as one of the sureties in the replevin bond, it could be claimed to be¡premakvrély brought, at most.

But we hold, that even if this agreement be construed as one not to sue on the note within a given time, or before the happening of a particular event, (as the releasing of the sureties in the replevin bond,) yet it cannot constitute a bar to an action on the note. A covenant never to sue upon an existing demand operates as a release; but a covenant or agreement not to sue within a limited time, is neither a release, nor can it be pleaded in bar of an action. It is a distinct agreement, for the violation of which (if it be founded upon a consideration) an action may be maintained. (Dow vs.

Tuttle, 4 Mass. 414; Perkins et al. vs. Tilmam, 8 Pick. 229; Chandler vs. Herrick, 19 John. 129; Greeley vs. Dow, 2 Met., 176.) In connection with this subject, we may dispose of the fourth ei’ror insisted upon, by saying that the execution in the replevin suit, which issued against Stevens for costs, having been returned satisfied, and the judgment in that case in the Circuit Court having been for costs only, the condition of the bond was complied with, and the obligors therein would be relieved from liability.

We see no error which could affect the plaintiff in error, in that part of the charge of the County Court relating to the services of Mr. Millett, on the hearing of the habeas corpus proceeding. The presence of Stevens while Mr.

Millett was engaged in rendering professional services on the part of the State in a criminal matter, would not give rise to any presumption that Stevens agreed to pay for such services, even if he (Stevens) was the prosecutor ; nor would the ¡presence of the district attorney, whose duty it is to conduct such proceedings on the part of the State, raise any presumption of liability against him ; but if it was sought to render Stevens liable to the plaintiff in error for such services, it was necessary to prove a retainer by him.

So that the charge of the court in this respect could have worked no injury to the plaintiff in error. See Bac. Ab. Error K. 4. The remaining question is whether the plaintiff below was entitled to recover costs.

Section three of

chapter one hundred and thirty of the Revised Stair utes, provides that a plaintiff who recovers judgment in any action not cognizable before a justice of the peace, shall recover his costs. It is evident that this action was not cognizable in a justice’s court, because the promissory note sued upon was given for the sum of one hundred and sixteen dollars and fifty-two cents, and was not reduced in amount by “ credits or payments indorsed thereon, to an amount not exceeding one hundred dollars.” (See R. S. ch. 88, § 6.) The plaintiff below was therefore entitled to costs. We have been unable to find any error in this case, and consequently the judgment of the County Court must be affirmed.