#### BRATON *BUSHEE, plaintiff in error, vs.*JOHN WRIGHT, *defendant in error,*

> *Error to Grant county.*y

In actions against several defendants, where a declaration is used as the first process, a'copv *of*the declaration must *be personally*served on *all*of the defendants before a default can bn entered agauist any; and it is error to take a default against one before all are personally served.

Wright brought an action of assumpsit against Cyrus Harperaticl Braton Bushee in the Grant District Court, founded on the following writing:

“Van Bureic, December 6,1837.

“County of Grant, Territory of Wisconsin:

Articles of agreement made and entered into between John Wright, of the county aforesaid, of the first part, and Cyrus Harper and Braton Bushee, party of the second part. The said John Wright has this day sold to Cyrus Harper and Braton Bushee, onc-third of a certain mineral lot known by the name of the Wright & Hudson lot; and all his mineral that is on the ground, for the consideration of eight hundred dollars in hand and two hundred more, provided it comes out, as soon as the mineral is raised.

(Signed) JOHN WRIGHT,

CYRUS HARPER,

BRATON BUSHEE.”

The suit was brought to recover the §200, claimed to be duo by proviso. The declaration contained two counts; in one of which it was averred that the $200 was to he paid when §1000 worth of mineral should be raised on the ground, and averring that that quantity had been raised; the other averring that it was to be paid when $200 worth should be raised, and averring that amount to have been raised.

The suit was commenced by declaration as *the*first process, which was duly served on Bushee, and returned, not found, as to Harper. Bushee was defaulted in the clerk’s office for want of a plea, and no discontinuance as to Harper was entered at any time. At the September term, 1840, being the first term after the commencement of the suit, Bushee, by his counsel, conceiving the *113default to be irregular, made a motion to have it set aside, but did Hot pay the costs. The cause was not reached on the calender for trial at that teruq and the motion was not disposed of until after the petit jury was discharged, when it was overruled by the court. Bushee theii offered to file an affidavit of merits, pay the costs, and plead the general issue, and moved on those grounds to set aside the default, which motion was .also overruled; and, on motion of Wright, the default was made absolute and a writofin-quiry awarded, when the cause was continued until the next term. At the March term, 1841, Bushee filed an affidavit of merits and of reasons in excuse for not pleading before the default was entered, and again moved to set aside the default, which motion was also overruled. At the same term, the venue was changed, upon his application, to Iowa county. At the September term,' 1841, of the Iowa District Court, the writ of inquiry was executed, upon the execution of which, the plaintiff below offered to read aS evidence the depositions of three witnesses, each of which testified that the meaning of the agreement sued on, as understood among miners, was tó pay the $200 as soon as the first $200 worth of mineral came out of the ground. The defendant objected to these depositions, but the court overruled the objection and permitted the depositions to be read. The defendant below offered in evidence two depositions, taken in the presence of the adverse party, who cross-examined the witnesses, proving that Wright had not the interest in the ground that was specified in the agreement, and one of them testified that Wright had admitted that he was not to be paid the $200, until $1000 worth of mineral should come out of the ground. The plaintiff objected to these depositions on the ground that the facts proven wont to defeat the plaintiff’s right of action, and on the ground of informal-ities in taking and certifying them, and the court sustained the objection and rejected the depositions, upon which the court decided — “ That by the default the defendant had confessed the plaintiff’s right of action as declared and averred in his declaration, and that the jury were not permitted to inquire into any matters that would tend to defeat the plaintiff’s right of action.” After the verdict, Bushee moved for a new trial and in arrest of judgment, both of which motions were overruled by the court and final judgment rendered against him. Exceptions were taken to the various decisions of the court in the progress of the cause, *114and this writ or error is prosecuted to reverse the judgment of the court below.

The plaintiff in error assigned the following errors in the proceedings of the District Court:

1. The default taken and entered in the clerk’s office in vacation, was erroneous.

2. The court erred in overruling the motions to set aside the ■default made at the September term, 1840, of the Grant District Court.

3. The court erred in ordering tho default of the defendant to be entered, and in awarding a writ of inquiry of damages at the September term, 1840, of the Grant District Court.

4. The court erred in overruling the motion to set aside the default made at the March term, 1840, of tho Grant District Court.

5. The District Court of Iowa county erred in permitting the evidence offered on the part of the plaintiff below, to be read in evidence to tho jury.

6. The court erred in rejecting the evidence offered by the defendant below, and in deciding that by the default the defendant had confessed tho plaintiff’s right of action as declared and averred in his declaration, and that the jury wore not permitted to inquire into any matters that would tend to defeat the plaintiff’s right of .action.

7. 8. 9. Tho court erred in overruling tho motion for a new trial, in arrest of judgment, and in entering judgment against the defendant below.

Burkett, for pl’tffin error:

Tho default taken in this caso in the clerk’s office was irregular. At common law, a plaintiff cannot proceed against one of several joint contracting parties, until all are brought before the court in some way. By the statute of the Territory, before ho can so proceed, lie must discontinue as to the defendants not found, and amend his declaration. Revised Slat. 207, 208, sec. 67, 68. Where the declaration is the first process, *all*the defendants must he personally served. Revised Sut.201,soc. 16. This default, then, was irregularly taken, and ought to bavo been sot aside upon bare motion. 1 Peino & Duer’s Practice, 625.

If the default was regular, still it ought to have boon set aside upon an affidavit of merits, pleading issuably, and payment of costs, *115where a trial has not been lost, 1 Tidd’s Prac. (11 Ed.) 567; 1 Paine & Duer, 621, 622; *Davenport vs. Ferris,*6 John. Rep. 131; *Talmaiige vs. Stockholm, and another,*14 John. Rep. 321; 2 Strange, 975; 4 Burr. 1996. The provision of our statute (page 209) gives the defendant the right to set aside the default within a limited time, even when regularly taken, upon payment of costs, without any affidavit of merits. It was decided below, that this took from the court all discretion upon the subject. This is not warranted by fair construction. At common law, the court was bound to exercise a sound discretion upon the circumstances, and if the defendant made a proper case in due time, the court was bound to sot aside the default, otherwise it might refuse.— The statute is cumulative, and not in derogation of the common law. By it, a right is secured to the defendant which he had not before, of sotting aside a default without an affidavit of merits, or any exercise of the discretion of the court.

The court below erred, as we think, in permitting witnesses who were not present at the making' of the contract, to testify as to the meaning of the agreement. A written instrument must explain itself unless it becomes ambiguous in its application, by extrinsic facts; and in such case, it can only be explained by the testimony of persons acquainted with the original contract between the parties, and who can testify as to their intention tpd meaning in making the contract. 2 Starkie, 544, ’5, ’6, ’7, ’8, ’9.

It is also conceived that the District Court erred in its decision upon rejecting the evidence offered by the defendant below. Although it is admitted to bo law, that where a default is regular, the defendant cannot defeat the recovery entirely, yet he has a right to show by competent testimony before the jury of inquest, any matter that will reduce the plaintiff’s damages, even to a nominal sum. 1 Paine & Duer, 634, 635, and the authorities, there cited.

Durr, for def’t in error:

At common law, a default may be taken against one of several defendants; so it may by our statute; trad joint defendants may plead separately. The service of the declaration was sufficient to bring Bushee into court, the same as any other process. It was. duly served on him, and the default was regularly taken against him for his own neglect to plead, and it could only be set aside in She manner and in the time pointed out in the statute. The mo-*116lion that was made to set it aside upon an affidaritof merits would have been sufficient at common law, but under the statute, it could not be sustained after the jury was discharged. The statute controls the court and leaves it no discretion upon the subject.

As a general principle, oral testimony cannot be received to explain written instruments; yet in particular cases such testimony is admissible. To explain words which are used in relation to particular customs, arts, professions, or business, and which, to those unacquainted with their application would be unintelligible, parol testimony may be received. Roscoe on Ev. 10, 11.

The depositions of the defendant were properly rejected by the court below. There was no notice given, nor were they certified according to law; and although the plaintiff attended and cross-examined the witnesses, that does not dispense with the positive requisitions of the statute, which require that notice shall be given or waived in writing. Besides, the matter of the depositions was inadmissible in the case as it stood under default, as it went to defeat the plaintiff’s right of action.

Opinion of the Court, by

Judge Irvin:

This case was commenced by declaration in the District Court of Grant county, by John Wright, the defendant in error, against Braton Bushee, the plaintiff in error, and Cyrus Harper, and after-wards, on a change of venue, it was taken to the county of Iowa. Process seems to have been served on but one of the defendants, and as to the other, returned not found. By “ an act concerning proceedings in courts of record,” a declaration may be the first process, and if a copy of it, together with the rule that the defendant plead within twenty days after service of the same, be served personally on said defendant, and he should fail to plead, a default is to be entered against him. In this case, Bushee, the only one of the defendants served with process, did not so plead, and a default was entered against him, to take off which, he appeared and made a motion at the next District Court, which motion was overruled. The principal question, and certainly the first in the cause is, did the court err in so deciding? By the sixteenth section of said act it is provided, that “upon due proof of the service of a declaration personally on *all the*defendants in. the cause, their appearance shall be entered by the clerk of the court, and their *default*may be entered for not pleading, and the same proceedings may be had against them in all respects as if *117they had appeared.” From the reading of the law, *all*must be personally served with process. In the State of Now York, there was a statute with similar provisions,' and the court (see 7 Wendell, 517, and 9 Wendell, 433,) held, “ that in a suit commenced by declaration against several defendants, the plaintiff could not proceed until all the defendants were served with the declaration.” The court is of opinion, that when declaration'is the first process, and there be more than one defendant, process must be served personally on all, and that it is error to take a default when only a part of the defendants are served with process. The default taken in this case, being taken without authority of law, should have been set aside, and the District Court erred in overruling the motion made to that effect.

Burnett and Moses M. Strong, for pl’tff iri error.

Dunn, for def’t in error.

From the uncertainty in the assignment of the error, (the only one remaining undisposed of by the point already noticed,) the court does not deem it necessary to decide any thing in relation to it, particularly as it relates to matters about which the authorities are numerous. It is the opinion of the court, that for the error noticed, the judgment of the District Court be reversed with costs, and that the same be so certified, that such other and further proceedings may be had therein asjto lawhnay?appertain.