#### WILLIAM B. SLAUGHTER, *pl'ff in error. vs.*JOHN BEVANS, *def’t in error.*

*)*

The return of a writ is presumed to have been made on the return day, unless the date of the velum specially and. positively appears by indorsement on the wviti'self or an entry of record, showing a different time when the return mis actually made.

In proceedings by attachment, the first default is so much a matter of form, tint fo emer it without previous publication or before proof of publication is filed, is not error. '

An affidavit for a writ of attachment cannot be amended under any circumstances.

The iud wsernont of satisfaction on an affidavit for a writ of attachment, is an indispensable pre-requisite to the issuing of the writ, and where a writ has been issued without such indorsement., the officer cannot be permitted to come into court, pending the suit, and indorse his satisfaction.

*196The law does not confine tho plaintiff in an attachment, in suing out hw writ, to the county where the defendant resides or where he is found; tho affidavit that the defendant has properly in the county where the writ issues, is a sufficient authority for commencing in such county, if the point were doubtful.

Where the plaintiff had obtained a decree in chancery for the balance due him upon the coming in of the master’s report on foreclosing t> mortgage, such decree may be pleaded in bar as a former recovery, *in nn*action at law between the same parties for the recovery of the same demands.

Bevans sued out a writ of attachment against Slaughter in Ilia Iowa District Court, oil tho 10th September, 1339. On the some day, tin different affidavits, other writs were issued to the counties of Brown, Dane,Grant, Milwaukee, and Racine. There was no indorsement of satisfaction on tho affidavit for the writ, by the officer before whom it was made. The sheriff of Iowa county returned the writ directed to him *nulla bona,*and served personally, but how or when the personal service was made, does not appear by the return.’ The writs to Grant and Racine appear not to have been returned at all, and levies were made upon property in Brown, Dane, and Milwaukee. At the April term, 1840, the first default of the defendant was entered; and at the September term, 1840, the plaintiff asked leave of the court for the officer before whom the affidavit was made to come in and indorse his satisfaction, which was objected to by the defendant, but the court overruled the objection, and granted the leave, and thereupon the officer indorsed upon the affidavit that he was satisfied, at the time whenjt was made, of tho truth of the facts therein stated, to which the defendant excepted. At the same term, and previous to the indorsement of satisfaction, tho second default of the defendant was entered, and the plaintiff afterwards filed his declaration in assumpsit on the 21st September, and on his motion the defendant was ruled Jo plead to the said declaration by the next morning, and on tho same day proof of the publication of notice of tho writs to Grant, Brown, Milwaukee, and Dane, was filed for the first time, but no publication appears to have been made of the writs issued to Iowa and Racine; afterwards, at the sime term, the defendant, in response to the rulo to plead, triado a motion to dismiss tho proceedings, on the ground that at the commencement of the suit lie resided, and still continued to reside, in the county of Dane,'which fact was made to appear to the satisfaction ot the court.

At the April term, 1840, the motion to dismiss was overruled *197*by*the court, to which tho defendant excepted; whereupon, the defendant filed a plea in abatement, traversing tho truth of the affidavit, upon which an issuo .was made and a jury emparinellod, who returned a verdict sustaining the affidavit; and afterwards, at tho same term, tho plaintiff filed a second declaration in assnmp-sit, and afterwards, on the 20th day of April, tho defendant filed his plea of general issue, and also the following special plea in bar:

“And for further plea in this behalf, the said defendant, by leave of the court hero had, says: that heretofore, to-wit: in the September term, in the year 1840, in the said District Court in the said county of Iowa, and after the commencement of this suit, the said plaintiff, by the consideration, judgment and decree of tho said Court, recovered, in a certain suit in chancery then and there decided in tho said District Court, in which the said John Bovans was complainant, and said William B. Slaughter was defendant, against the said defendant, the sum of five thousand three hundred and eighty-seven dollars and -cents, on occasion of the not performing of the same identical promises and undertakings in the said declaration mentioned, together with his costs by him about his suit in that behalf expended, whereof the said defendant was .convicted, as by the record of the proceedings thereof, still remaining in the said District Court, at the county aforesaid, more fully and at large appears, which said judgment and decree still remains in full force, and not reversed, satisfied or made void, and this he is ready to verify, wherefore he prays judgment,” &c.

The plaintiff filed a joinder in issue to the plea, of general issue, and a general demurrer to the special plea.

At the September term, 1841, the plaintiff'entered a *nolle pro-sequi*upon bis second declaration, and the record does not show to which declaration the pleas were pleaded, but they wore both for the same cause of action,- and at the same term the court sustained tho general demurrer to the defendant’s special plea in bar.

Previous to this, Bevans had filed a bill in chancery against Slaughter in the Iowa District Court''to foreclose a mortgage that had been given to secure the payment of the same promissory notes that wore declared upon in this case. Upon the corning in of the master’s report of the sale of tho mortgaged premises, the court decreed against Slaughter the payment of the balance due of the mortgage debt, according to the provisions of the statute-*198Pending Ibis suit, (he complainant made a motion in the chancery cause for leave to proceed in his action at law, which was granted by the court.

This cause was tried at tho September term, 1841, and upon tho trial, the jury returned a verdict in favor of the pliintiif for §3308 49, upon which tho court rendored judgment. Slioghter sued out a writ of error, and assigned the following errors in tho record of the proceedings of the court below.

1. Tho court erred in entering the first default of the defendant before proof of publication tiled.

2. The court erred in permitting the affidavit to bo amended.

3. The court erred in rendering final judgment before two defaults of the defendant liad been entered.

4. The court erred in overruling the motion to dismiss.

5. The court erred in sustaining the demurrer to the second plea of the defendant.

G. The court erred in rendering final judgment in the case.

Moses M. Sthoxg, for pl’if in error:

The errors assigned in the proceedings, prior to the filing of the plea, may be considered as technical. But the proceeding being by attachment, the plaintiff must he held to tho strictest compliance with tho law, in every particular. The default taken at the Aprii term, 18.0, was erroneous, because then no pioof of publication had been filed. The only question is, tvhother filing tho proof at the September term cures this defect? We say it did not, because a man cannot, regularly, be defaulted until bn lias been legally notified, and proof of that fact is made to the court. Again, the proof that was filed did not relate to tlm original writ, and of course it was not sufficient to support tire proceedings on tho original writ, if the default was illegally entered, it was error in the court to rulo the defendant to plead.

At (lie lime of the first default, satisfaction was not indorsed on tho affidavit, and the proceedings were at that time irregular, if not void. To cure this defect, the court permitted tho officer to come in at the September term, and indorse bis satisfaction. We contend that the court liad no right to allow tho indorsement to be made at that lime; but if it bad, the previous proceedings were irregular, and on that account alone, the judgment ought to be reversed.

The next point is of more importance. The court below ough t *199to have sustained the motion to dismiss made at the September term, 1840. The writ to Iowa county was returned *nulla bona,*and of its issuing there has never been any notice published. The defendant resided in the county of Dane. Tho general law in relation to civil proceedings does not apply to cases of this kind. This is a proceeding in. *ram,*and cannot ho had in a county whore the deft ndant does not reside, and where ho has no property.

The defendant’s plea of former recovery, if true, was certainly a bar to tho action. It is not denied that fotmer recovery is a good plea in bar. This plea is in technical form, and no-objection was taken to it on that account. Then, by all rules of pleading, tho plaintiff should have replied and made an issue of fact upon it; but he chose to demur, and make an issue of law, and the court, upon this issue, decided against the defendant. The court cannot (raved out of the record and consider *facts,*in disposing of a demurrer, and unless this plea is defeated by facts, I cannot imagine upon what other ground it can be disposed of against tho defendant.

Jacksox, for defendant in error:

The first objections taken, arc against the regularity of the defaults. Tire statute does not require that proof of the publication of notice should he filed before taking a default. It is immaterial, so that publication is duly made, at what time the proof of it is filed. The record shows, that although tho proof was not filed at ihe lime, that the publication was made, and that is all that is required. But if the default was irregulaily taken, tho defendant should have come into court and moved to set it aside. Tho defect, if any such existed, was cured by the plea; 1 Cowcn’s Treatise, 4915, 524; and the defendant is estopped by his plea from al-ledging any tiring against the rcgnlaiily of tito previous proceedings. The defects are also cured by verdict. Slat, Wis. 258.

The indorsement of satisfaction was made, *nunc pro tunc,*and does not appear to be objectionable. It was certainly allowable under the statute of amendments.

The plaintiff below certainly had the right to bring his suit in Iowa county if lie chose lo do so. The statute authorizes suits by attachment to Ire commenced in any county, and writs to bo issued to any other county in the Territory where there is property. The plaintiff’s affidavit stated that the defendant had property in Iowa county, and although the sheriff did not find it, *200tho defendant himself was found, and personally served, and (he cotut decided correctly in overriding the motion to dismiss.

The last point is on die decision of tho court on the demurrer to tho special plea. This suit, and the chancery suit, were used concurrently to collect a debt secured by mortgage, and for which the mortgaged premises) were wholly inadequate. The statute authorizes the plaintiff to pursue concurrent remedies in such case; Slat. Wis. 293. In the chancery cause, the complainant, hud obtained leave of the chancellor to proceed in this action at law, both cases being in the same court, and pending at the samo time. The court is always hound to notice its own records, and to know what has been done in tho court. The plea was against the leave obtained in chancery, and might have boon rejected on motion, Tho decision on tho demurrer was proper in the case.

Du.vsr, in continuation:

If there were any irregularities in the proceedings, they were cured by tho plea and verdict; the defendant not having taken advantage of them at the proper time. Questions as to the publication of notice, arc questions of fact, and where they are disputed, they rmist he tried by a jury; they are not questions of law for the decision of the court.

There is no question of the propriety of tho decision in allowing the officer to indorse his satisfaction upon the affidavit; that is, that he was satisfied at the time when it was made. It did not alter the fact, but furnished the court with the evidence of the fact. The officer had enough before him to satisfy him. Tho record shows the best evidence that the facts existed to entitle the plaintiff to tho writ. The defendant traversed the affidavit by a plea in abatement, and (he jury found the affidavit to be true. The statute of amendments fully authorized the discretion which the District Court exercised in allowing tho amendment *to bo*made.

The decision of tho court on the demurrer, is the only doubtful point in tho case; and when the record is examined, there will bo enough found to sustain that decision. The plea itself is had, because it sets up a judgment of former recovery in a suit in chancery. A judgment cannot bo entered in a chancery cause, and such a plea cannot be sustained as a good plea of former recovery. Beside, the plea was against a former order of the same court, in a suit in chancery between the same parties. The re-*201feords of the court are matters of law, and the court ip bound to Cake notice of them, and may do so on demurrer.

Buenett, in reply:

There are four principal points for the plaintiff in error, that will embrace the whole case.

First: The objections to the defaults taken, the service of process, and the publication of notice.

Second: The permission of the court to enter the indorsement of satisfaction on the affidavit.

Third: The overruling of the motion to dismiss.

Fourth: The decision on the demurrer to the special plea in bar.

First: This is a proceeding under the attachment, law, as it stood in 1839. Under that law, the only way of bringing the defendant into court, was by the levy of the writ and publication of notice. The writ operated on the property alone, and there was no such thingas personal service. Publication of notice was made to take the place of a summons. If this has not been duly made, the writ shall be quashed; there is no alternative, for so says the law. ■ Publication, then, is an affirmative matter which the plaintiff must make appear, and if he fails to do so, the court must act upon the case. If the defendants is sued by summons, the court can take no action in the case until the sheriff returns the process served; and in attachment, publication of notice standing in the place of the service of a summons, the court cannot regularly default the defendant until it is proven to have been duly made. In this case, there never has been such a publication as the law requires; there has been none of the original writ, the basis of all the subsequent proceedings. The proceedings being irregular in this particular, the judgment ought to be reversed. But it is said that we have waived all these defects by pleading to the declaration; and the court has been referred to the law as laid down in Coweffs Treatise. Counsel seem to mistake the law and its application. In the same authority it is stated, immediately following what has been read to the court, that where the defendant appears and makes a motion in the cause, which is overruled, and afterwards pleads, the plea does not admit the regularity of the proceedings. This is our case. We made a motion to dismiss, which was overruled, and had to plead in answer to a rule of the court, and the plea admits nothing.

*202Second: The court below ought not, as we contend, to have allowed the officer to indorses his satisfaction on the writ, pending the proceedings. This court had decided at the August termj 1840, in the case of *Mayhem Dudley vs.*Mayhem, that the satisfaction of the officer is an indispensable pre-requisite to the issuing of the writ, and this can regularly appear in no other way than by his own indorsement of the fact. This, then, wo take to be the established law; and that the clerk had no authority to issue the wiit until the proper affidavit, with the requisite indorse-menf, was filed with him; and that a writ issued without this authority was void in its inception. If the writ was issued without authority of law, it was not in the power of the court to correct it. The court cannot, by permitting officers to come in, pending the suit, and perform acts which the law says are pre-requisite to the issuing of the writ, give those acts a relation back to the commencement to sustain' a writ irregularly issued. The plaintiff must make his cane perfect in the beginning, and keep it so in all its stages; and if it is wrong in the commencement, no subsequent. act of the officers or of the court, can make it right.

Third: The court below ought to have sustained the motion to dismiss. In all other proceedings at law, the statute requires that the suit shall be brought in the county where the defendant resides, or where he may be found. Reason and analogy would say, that a suit by attachment should be commenced either in the county where the defendant resides, or where his property may be found. We admit that a person may be sued by attachment in any county where he has property, because it is through his property that he is compelled to appear; but we deny that it may done in a county where he does not reside, and where the sheriff can find no property to attach. If such be the law, it may be used for purposes of the greatest injustice and oppression. But if this ground was not sufficient, and the record presents other grounds which ought to have sustained the motion, they are proper subjects for the consideration of this court. This court said, in the caso of *Domen vs. Taylor,*decided at the last terra, that although a motion docs not point out particular irregularities, yet the court may notice defects apparent on the record; and that a judgment may be arrested for an objection on the face of the record, although not assigned at the time of making the motion; and the court in that case, arrested the judgment for apparent defects, although *203tlic particular reasons assigned by the defendant below, were of matters in abatement. This I understand to be the law, and that a motion to dismiss a suit, embraces every thing that ought to dismiss it, and that appears of record. The court will consider in this case, whether at the time of making the motion, there wore any grounds presented in the record, which would require that the suit should bo dismissed, and if so, the judgment must be reversed.

Fourth: The decision of the court below on the demurrer, seems to me to be conclusive of the case in this court. It is not denied that a former recovery is a good plea in bar as a general principle. No objections to the form of the plea have been taken. Two grounds have been assumed here in support of the demurrer; one is, that a court of chancery cannot render a judgment, and that a recovery in chancery cannot be pleaded in bar in an action at law; the other is, that the statute authorizes proceedings in chancery and at law for the recovery of debts secured by mortgage, as concurrent remedies, and that in the chancery suit for foreclosure, the plaintiff below had obtained leave to proceed at law in this suit. On the first ground, it is sufficient to remark, that by the law, Stat. Wis. SCO, soc. 66; 292, sec. 82, a decree in chancery has the same force and effect as a judgment at law; and upon the coming in of the master’s report on the foreclosure of a mortgage, the court may decree the balance of the money due,, against the defendant, and issue execution thereon, as in other cases. The recovery, in such case, is full and complete, and execution thereon is the end of the law.

As to the second ground: it is said that the statute authorizes concurrent proceedings at law and in chancery, to recover the came debt. This is a mistaken idea of the law. The statute was evidently intended to, and actually docs, restrict the powers and. limit the proceedings of mortgagees. At common law, the mortgagee had the right to pursue his remedies at law and in chancery concurrently, and no leave of the chancellor was necessary; our statute provides, that after a bill is filed to foreclose, no proceedings shall be had at law to recover the mortgage debt, unless authorized by the court of chancery; Stat. Wis. *293!,*sec. 83. We contend that the authority is necessary to be obtained to authorize the very commencement of the proceedings at law. If the complainant wishes so to proceed, after filing his bill to forclose, *204lie should file his petition, or supplemental bill, setting up the ne« cessity and propriety of so proceeding, and obtain the authority before he commences at law, It cannot be the sound construction of the statute, that a party may file his bill to foreclose, afterwards commence a suit at law to recover the same debt in violation of the provisions of the statute, prosecute both to near their termination, and then obtain an *ex parte*order in the chancery suit authorizing him to proceed at law, and that this order will relate back to the commencement of the action, and legalize the whole proceeding. But all this is not very material to the question. The decree rendered at the coming in of the master’s report, for the balance, of the money due on the mortgage, has all the properties, force, and effect of a judgment at law, tobe carried into effect by execution, as in other cases, and of course must be a bar to any subsequent proceedings to recover the same debt. If this plea in bar can be obviated by the previous order of the chancellor, how is the plaintiff to avail himself of it? By demurrer? Certainly not; for on demurrer, the court cannot notice any thing out of the record of the particular case in applying the law to it. Counsel say that the court is bound to notice its own records. This is true in all cases where they can be legally brought to notice, but the court cannot look into the records of other cases for fads to sustain a demurrer; for this would be making an issue of fact instead of law, and upon such an anamolous issue, the court would have to try the fact. The law is, and was so decided here in the case of *Haney vs. Ciarle,*a few days since, that this court cannot notice any thing that is not legitimately a part of the record of the particular case under consideration; and this court cannot here take any notice of the scrap from the record of the chancery suit which the clerk has certified and sent up. If the plea in bar is to be avoided by the leave obtained in chancery, the matter should have been replied, setting up the authority, which would have brought the sufficiency of the order in issue. The plaintiff below, having failed to do this, and relied upon his demurrer, and that having been sustained by the court, the judgment must for this cause, if for no other, be reversed.

Opinion of the Court, by

Judge Miixer:

This suit was commenced by attachment in the District Court of Iowa county, by John Bevans against William B. -Slaughter. It was predicated on an affidavit of plaintiff, charging the defend*205ant with fraudulently disposing of his property, so as to hinder and delay his creditor. The affidavit was made before a justice of the peace, the 10th day of September, 1839, (before the act in the Revised Statutes was amended,) and the justice had neglected to indorse his satisfaction thereon previous to the issuing of the writ. At the September term of said District Court for the year 1840, the court allowed the said justice to appear in court and make the necessary indorsement of satisfaction on said affidavit, *nunc pro tunc,*the defendant opposing the same. In pursuance of the tenth section of said act, additional writs to the writ issued to the sheriff of Iowa county were issued on the same day to the sheriffs of Brown, Grant, Milwaukee, Dane, and Racine counties, and on which property was attached in said counties. It appeared by the motion filed to dismiss the writ and proceedings, that the defendant before and at the time of the commencement of the suit resided in Dane county. The court overruled the motion to dismiss the writ and proceedings, and the cause proceeded to final judgment.

The first error assigned for our consideration is as follows:

The court erred in recording the first default of the defendant before proof of publication filed.

The third section of the act concerning attachments, directs the clerk who issued the writ, upon the return of the writ, to make out an advertisement, which is to be published within thirty days. When these writs were returned, does not appear. The return of a writ is presumed to have been on the return day mentioned therein, unless the date of the return specially and positively appears, by indorsement on the writ itself, or entry of record. By the seventh section, the first default of the defendant is to be entered at the first or return term, which could not be done if the writ had not been returned in time for the publication, which may not have been issued in time, or if so, may be retained in the sheriff’s hands until the return day. The first default is so much a matter of form, that the entry thereof without previous publication, or proof of the same, is not error.

The second error assigned is, that the court erred in permitting the affidavit to be amended. There was no amendment made of the affidavit, nor could there be any, for an affidavit of this kind is not amendable under any circumstances. The error assigned, from the argument, we are to infer, has a reference to the permis*206sion to the justice to indorse his satisfaction. This court decided at the term of 1840, in the case of *Mayhew*& *Dudley vs. Mayhem,*that the satisfaction of the officer is an indispensable pre-re-quisite; and that can regularly appear in no other way than his own indorsement of the fact; and that the clerfc could not properly and legally issue the writ without such evidence of satisfaction. The same principle was reiterated at the term of 1841, in the case of *Morrison vs. Fake.*And the legislature was so well satisfied of the propriety of this rule, that in the act to amend the act concerning the writ of attachment, approved February 16th, 1842, it was incorporated therein. From this it will appear that the indorsement of the justice should not have been allowed, and that the District Court erred therein.

The third error assigned is, that the court erred in rendering final judgment before two defaults of the defendant had been entered.

At the September term, 1840, which was the second term, the defendant appeared and filed a motion to dismiss, which, at the April term, 1841, was overruled. At this term, the defendant filed his pica in abatement, which was disposed of against him, when the defendant filed his plea of general issue, and a plea of former recovery. At the September term following, the cause, being at issue, was tried by a jury. This statement is an answer to the error assigned. The defendant’s second default could not have been legally entered in the face of his plea.

The fourth error assigned: That the court erred in overruling the motion to dismiss the attachment. The motion was made at the September term, 1840, on the ground that the defendant was, at the time of the commencement of the suit, and continued to be, a resident of Dane county, and not of the county of Iowa. The process of attachment is, in the case of a non-resident, a means of compelling a party to appear through his property. It is not regulated by the general law respecting proceedings in courts, but it is regulated exclusively by the act upon the subject of attachments. That act does not confine the plaintiff, in his suit, to the county where the defendant resides or is found. The original affidavit filed by the plaintiff set forth that the defendant had property in the county of Iowa, which was enough to authorize the writ in that county, if the point were doubtful. In this the court did not err.

*207Moses M. Sritone and Bukkett, for pl’ff in error.

Jackson and Dunn, for def’t in error.

The *fifth*error assigned is: “That the court erred in sustaining the phinthT’s demurrer to the second plea of the defendant.” The said second plea was a plea of former recovery, good on its face, to which the plaintilF demurred generally. This court is unanimously of opinion that there was error in this decision; and as error is so apparent, it is not necessary to refer to authority upon the subject.

Those embrace all the errors material on the record. It is therefore considered and adjudged, that the judgment of the District Court of Iowa county be reversed, with directions to said court to set aside the writ, of attachment and all subsequent proceedings.