#### King and others vs. Ritchie and others, impleaded &c.

If a review of the evidence apon an issue of fact found by the court is desired, exceptions to the finding must be filed as required by sec. 13, chap. 26i, Laws of 1860.

Where there is no exception to the finding of facts, the judgment may be reversed either upon the ground of material error in respect to the admission of evidence or upon the ground that the facts found do not sustain the conclusions of law upon which the judgment is based.

Where a note intended to be used in payment for goods to be purchased of the payee, is indorsed in blank by a third party before delivery, for the purpose of giving credit to the maker, and the payee parts with his goods upon the credit of such indorsement, upon demand at maturity and protest for non-payment, with due notice thereof, the indorser is liable.

*555Since the publication of ch. 39, Laws of 1861, the notice of the taking of a deposition must he given to the opposite party by the party who proposes to take such deposition, and not by a justice of the peace.

In an action pending in the circuit court for Iowa county, A. & B., of Beloit, gave notice of retainer and appearance for the defendant, and subscribed and served their answer, upon the first trial of the cause, a judgment for the defendants was entered upon motion of C. (of the firm of H. *&*C. of Mineral Point) as their counsel. The bill of fees of defendants’ attorneys under that judgment, was stipulated on the part of the defendants by C. as their attorney. An order granting a new trial was made upon hearing C. on the part of the defendants; and the names of A. & B. appeared in none of these proceedings. Service of notices for the defendants were also made by the plaintiffs upon ,C. without objection. Afterwards a notice of the taking of certain depositions was served upon H. & C. as attorneys for the defendants; who did not return the same or object to receiving it. *SelH,*that the court did not err in receiving the depositions, although neither C. 'nor H. & C. had been formally substituted as attorneys of record.

APPEAL from tbe Circuit Court for *Iowa*County.

This was an action against *Brittan,*as maker, and *Ritchie, Newcomb*and *Doolittle*as indorsers, of a note payable to tbe order of *Doan, Xing & Go.*Tbe indorsement was in blank. Tbe complaint alleges, among other things, that tbe defendants *Ritchie and others*“indorsed tbe note when said *Brittan*delivered tbe same to tbe plaintiffs that “said note was made by tbe defendant *Brittan*and indorsed by tbe defendants *Ritchie, Newcomb*and *Doolittle,*for tbe purpose of paying for goods sold and delivered by tbe plaintiffs to *Brittan*on tbe credit of such indorsement; and that tbe defendants *Ritchie, Newcomb*and *Doolittle*so indorsed tbe note for tbe purpose of procuring for tbe maker a credit with tbe plaintiffs, knowing that it would be so applied.” Tbe complaint also alleges presentment for payment at maturity, protest for non-payment, and notice thereof given to all tbe defendants. *Brittan*made default. Tbe answer of the defendants *Ritchie, Newcomb*and *Doolittle,*by Todd & Converse of Beloit as their attorneys, denies due presentment of tbe note for payment, and alleges that tbe plaintiffs extended tbe time of payment for .a valuable consideration, without .their consent or knowledge.

*556On tbe first trial, judgment was rendered for tbe defendants. This judgment was set aside and a new trial granted. On tbe second trial, tbe plaintiff offered tbe note and indorsement in evidence; but tbe defendants objected to tbe indorsement as evidence of tbe liability of tbe defendants sued as indorsers, on tbe ground that it appeared that they were not the payees of tbe note or in any way parties to it, and that tbe indorsement was void by the statute of frauds. Objection overruled, and evidence received. Tbe plaintiff then offered in evidence tbe deposition of one Winslow, the notary by whom presentment, protest and notice thereof were claimed to have been made and given. Tbe defendants objected to tbe admission of said deposition in evidence, on tbe ground that tbe notice to their attorneys of tbe taking of tbe same was signed by the' justice of tbe peace before whom it was taken, and not by tbe plaintiffs or their attorney; but tbe objection was overruled and tbe deposition admitted. Tbe plaintiffs then offered tbe depositions of said Winslow and two other persons, taken subsequently to tbe former. Tbe notice of the taking of these depositions was signed by the attorney for tbe plaintiffs, and was addressed to and served upon “ Wm. T. Henry and J. H. Clary, attorneys for tbe defendants;” and tbe defendants objected to their admission, on tbe ground that Todd & Converse, of Beloit, were tbe attorneys of record for them, and that said notice should have been served upon them instead of Henry & Clary, who bad been retained only for tbe trial of the case. Tbe court overruled tbe objection, on tbe ground “ that it was evident from tbe papers in tbe case signed by Henry & Clary as attorneys, and their entire management of the action in court, that tbe said Henry & Clary were at all events tbe agents of tbe defendants, so as to make tbe service of said notice good against said defendants;” and tbe depositions were read in evidence. — Some further evidence was introduced, including the notary’s certificate' of protest. Tbe court found as facts tbe making of tbe note by *Brittan*and its indorsement by Ritchie, *557*Newcomb*and *Doolittle*at tbe time, in tbe manner and under tbe circumstances alleged in tbe complaint; its subsequent delivery to tbe plaintiffs for tbe purpose alleged; due demand of payment at maturity, due protest for non-payment, and notice thereof duly given to the indorsers; that the note was still wholly unpaid, the plaintiffs the legal owners and holders, and the sum of $322.33 due thereon. As a conclusion of law, the court held that the defends *Ritchie and others*were liable as indorsers, and the plaintiffs entitled to judgment against them for the amount due on the note, with fees of protest &c. — Judgment accordingly; from which the defendants Ritchie, *Newcomb*and *Doolittle*appealed.

*Todd &*Converse, for appellants,

argued, 1. That there had never been a due presentment of the note to the maker for payment. 2. ‘That the court erred in admitting the deposition of Winslow first taken, because the notice was given by a justice of the peace, and not by the party, as required by ch. 39, Laws of 1860. 3. That the court erred in admitting the depositions of Winslow and others subsequently taken, because the notice of such taking was not served upon the attorneys of record. *Waterhouse v. Freeman,l13*Wis., 340. 4 That the indorsement upon the note furnished no evidence of the liability of the appellants as indorsers, because it appeared that they were not the payees of the note,' nor in any way parties to it, and that said indorsement was void by the statute of frauds.

*A.*Wilson, for respondents.

*By the Court,*

DixoN, C. J.

If a review of the evidence upon an issue of fact tried by the court is desired, exceptions to the facts found by the judge must be filed as prescribed by the statute. Laws of 1860, ch. 264, sec. 13. In this case there are no such exceptions, and hence we cannot examine the evidence. We can only look into the facts found, and, if they sustain the conclusions of law,' the finding will not be disturb*558ed. As there is no question about the sufficiency of the facts as found by the judge, the case turns upon the exceptions to the admission of evidence.

The first exception is to the admission of the note, on the ground that *Ritchie, Newcomb & Co.,*the indorsers, were not the payees to whose order the note was drawn, and the same had not been indorsed to them. The facts stated in the complaint and not denied by the answer, mate a case fully within the decisions in *Cady v. Shepard,*12 Wis., 639, and *Davis v. Barron,*13 Wis., 227; and the objection was clearly untenable.

The first deposition of the witness Winslow, taken before justice Havens, was irregular and ought not to have been admitted. The notice of the taking was issued by the justice, instead of being given by the plaintiffs or their attorney, and there was no appearance or other waiver of the strict requirements of the statute on the part of the defendants. The act, Laws of 1861, ch. 39, repeals section 9, chapter 137, of the Revised Statutes, and notice by the party is the only one which can now regularly be given. Upon the point of the repeal see State *v. Ingersoll,*17 Wis., 631. But as Winslow was subsequently examined, and his deposition regularly taken before another justice, as we shall proceed to show, and as his testimony is substantially in each, and both depositions were read upon the trial, the error was cured, and the judgment will not be reversed on account of it.

The objection to the last deposition of the same witness, and the depositions of other witnesses taken at the same time, is that the notice for taking them was not properly served. The service was upon Messrs. Henry & Clary, attorneys at Mineral Point. Messrs. Todd and Converse, of Beloit, were the attorneys of the defendants Ritchie, *Newcomb & Co.,*who gave notice of retainer and appearance for them, and subscribed and served their answer. The objection is, that the notice should have been served upon them. The court below overruled the *559objection, upon the ground *“*that it was evident from the papers in the case signed by Henry & Clary as attorneys, and their entire management of the action, in court, that the said Henry & Clary were at all events the agents of the defendants, so as to make the service of said notice good upon said defendants.” Upon inspection of the record sent up in return to the appeal, it appears that there had been a previous trial, and judgment for the defendants, and a new trial granted on motion of the plaintiffs. The judgment that was then entered, was upon motion of Mr. Clary as counsel for the defendants. The bill of fees of the attorneys of the defendants under that judgment was stipulated by Mr. Clary as “ att’y for *Ritchie, N.*& *Co.”*and Mr. Wilson as attorney for the plaintiffs. The order granting the new trial was made upon hearing Mr. Wilson for the plaintiffs and Mr. Clary for the defendants. The names of Todd & Converse appear in none of these proceedings. It furthermore appears that service of notices had previously been made upon Mr. Clary without objection. Under these circumstances, we think the court below was right in not rejecting the depositions, although neither Mr. Clary nor Clary & Henry had been formally substituted as attorneys of record. They had so far identified themselves with the record as the attorneys in fact of the defendants, with, it must be presumed, the knowledge and approval of the defendants and of Todd & Converse, that the least they could have done, if they desired to disclaim such relation and compel service upon Todd & Converse, was to return the notice with their reasons, so that the plaintiffs could have proceeded by a notice not liable to such objection. Not having done this, we think, whether Clary & Henry are in strictness to be regarded as attorneys of record or not, the defendants were estopped, as it were, from taking the objection to the depositions when offered at the trial.

Judgment affirmed.