Griffiths v. Kellogg. this truth. No modest woman could read without pain and self abase ment, no woman could so overcome the instincts of sex as publicly to discuss, the case which we had occasion to cite supra, King v. Wiseman. And when counsel was arguing for this lady that the word "person," in, § 32, ch. 119, necessarily includes females, her presence made it impossible to suggest to him as reductio ad absurdum of his position, that the same construction of the same word in § 1, ch. 37, would subject woman to prosecution for the paternity of a bastard, and in §§ 39, 40 ch. 164, to prosecution for rape. Discussions are habitually necessary in courts of justice, which are unfit for female ears. The habitual presence of women at these would tend to relax the public sense of decency and propriety. If, as counsel threatened, these things are to come, we will take no voluntary part in bringing them about. By the Court. The motion is denied. GRIFFITHS V. KELLOGG. (39 Wis. 290.) Negotiable instrument—signature obtained by fraud. A person was induced without his negligence to sign a negotiable note by fraudulent representations that it was a different note, and for a less sum. Held, that he was not liable thereon to a bona fide holder for value.* ACTION on a promissory note for $76, alleged to have been made by the defendant Kellogg to the order of Gillespie Brothers, and by them indorsed to the plaintiff for value before maturity. The answer admitted the making of a note for $47, but denied having executed any note for $76. On the trial, defendant testified that the note was given for a lightning rod; that she had agreed with one Johnson, the agent, to give him a note for $47 (the price of the rod), payable in six months or one year from the following fall; that he drew up a note for $47, payable in six months, which she refused to sign; that he then drew another note and read it to her as for the same amount payable as agreed, which she signed; that she was unable to read without her glasses, which were at the house of a neighbor; that two of her children were at the time present who could read, but she did not ask them to *See Abbott v. Rose, 16 Am. Rep. 427; Chapman v. Rose, 15 id. 401; Cline v Guthrie, 13 id. 357; Briggs v. Ewart, 11 id. 445. and cases cited in note. REP. Griffiths v. Kellogg. read the note; that she never intended to execute a note for $76, nor for any sum except $47. Plaintiff's evidence showed that he purchased the note for value before maturity and without knowledge of the circumstances stated by defend ant. The jury rendered a verdict for the defendant, and from a judgment thereon, plaintiff appealed. E. F. Carpenter, for appellant. Bennett & Sale, for respondent. RYAN, C. J. We shall not attempt to examine the very many exceptions in this case, but will content ourselves with passing upon the questions arising on the record. The question was very fully and fairly submitted to the jury, whether the respondent voluntarily made the note in suit, or whether her signature was procured to it by a fraud practiced upon her under pretense of getting her to sign a different note for a less sum which she really owed to the lightning-rod man. The jury found that the fraud was practiced upon her, and that she did not voluntarily make the note in suit. We entirely concur in the verdict. It is impossible to read the evidence without coming to regard the transaction as a fraudulent imposition upon the respondent. The note in suit was as little hers as if the transaction between her and the lightning-rod man had not taken place, and he had forged the note. If not forgery, it was akin to forgery. And the note so obtained is not the contract of the respondent. This is not an open But it has been See the cases cited Ebert, approved in question in this court. Walker v. Ebert, 29 Wis. 194; 9 Am. Rep. 548; Kellogg v. Stainer, 29 Wis. 626; Butler v. Carns, 37 id. 61; Chipman v. Tucker, 38 id. 43; Roberts v. Mc Grath, id. 52; Roberts v. Wood, id. 60. It was, indeed, contended that this doctrine is not applicable to negotiable paper, when the maker is not deceived as to the nature of the paper, but only as to the amount or other details of it. frequently applied to negotiable paper in this court. supra. The language of DIXON, C. H., in Walker v. Chipman v. Tucker, explains the rule and the reason of the rule, and is conclusive of its application. "The inquiry in such cases goes back of all questions of negotiability or of the transfer of the supposed paper to a purchaser for value, before maturity and without notice. It challenges the origin or existence of the paper itself; and the proposition is to show that it is not in law or in fact what it purports VOL. XX.-7 Van Slyke v. Trempealeau County Farmers' Mutual Fire Insurance Co. to be, namely, the promissory note of the supposed maker. For the purpose of setting on foot or pursuing this inquiry, it is immaterial that the supposed instrument is negotiable in form, or that it may have passed to the hands of a bona fide purchaser for value. Negotiability in such cases presupposes the existence of the instrument as having been made by the party whose name is subscribed; for, until it has been so made, and has such actual legal existence, it is absurd to talk about a negotiation, or transfer, or bona fide holder of it, within the meaning of the law merchant." The protection of the law merchant to a bona fide holder of negotiable paper is not absolute. He runs the risk of the validity of the paper which he purchases, for which he relies not on the maker, but on his immediate indorser. And question might be made whether one who purchases commercial paper, at a great discount, from a stranger, whose name he does not well know, without indorsement, without inquiry within his power, as the appellant did, can always be held to be a bona fide purchaser. Whether the respondent, being unable to read the paper which she signed, was guilty of negligence to estop her from setting up this defense against a bona fide purchaser, was fairly submitted to the jury, and answered by their verdict for her. The jury who gave the verdict, and the learned judge of the court below who refused a new trial, saw and heard the respondent and her children testify, and were better able to judge than we are whether her not appealing to her children for assistance was negligence under the circumstances. And even if we were disposed to think differently, we should not feel at liberty to disturb the verdict or the order denying a new trial, on that ground. By the Court. The judgment of the court below is affirmed. VAN SLYKE V. TREMPEALEAU COUNTY FARMERS' MUTUAL FIRE INSURANCE Co. (39 Wis. 390.) Constitutional law — statute authorizing counselor to act as judge— mistria!. A statute authorized actions in which the judge was interested or prejudiced to be tried by consent of the parties, before a counselor of the court. Held, that the statute was unconstitutional, that a person assuming to act under it was not even a judge de facto, and that his judgment was absolutely void. Van Slyke v. Trempealeau County Farmers' Mutual Fire Insurance Co. ACTION for a loss by fire, under an alleged agreement for insur ance. Plaintiff presented to the court a petition representing that the judge, by reason of relationship to the parties, was insensibly prejudiced in the case; whereupon the parties stipulated for a trial before John J. Cole, Esq., a member of the bar of the Supreme Court.* The bill of exceptions states that the action" came on for trial before John J. Cole, Esq., a counselor of the Supreme Court of this State, who sat as judge to try the case by stipulation of the parties, and a jury, at the April term of the court," etc.; and it is signed "JOHN J. COLE, Counselor, acting as Judge." The plaintiff had a verdict and judgment; and the defendant appealed. A. W. Newman, for appellant. G. Y. Freeman, for respondent. RYAN, C. J. Mere imputation of prejudice to the circuit judge, made in proper time by either party to a civil action, entitles the party mak ing it to a change of the venue. Ch. 123, § 8, R. S., ch. 206 of 1862. With a view, doubtless, of mitigating such inconvenience, ch. 69 of 1870 authorizes the parties to avoid change of the venue on that ground, y stipulating that a member of the bar of this court shall act as judge in the cause, with all the powers and duties of the circuit judge. Such a statute might work well. But we cannot consider it competent under the Constitution. That instrument vests all judicial jurisdiction in courts and justices of the peace, and provides for the election of judges of all courts; and the legislature can confer none on other officers or persons, excepting power not exceeding that of a circuit judge at chambers, on certain officers now called court commissioners. Att'y- Gen. v. McDonald, 3 Wis. 805; Gough v. Dorsey, 27 id. 119; Conroe v. Bull, 7 id. 408. So manifest is this intent to distribute and restrict the exercise of judicial authority by express grant, that the framers of the Constitution deemed it necessary to give express authority to the judge of one cir * Ch. 69, Laws of 1870, amended the statute directing a change of venue upon peti. tion of a party showing prejudice of the judge, by adding thereto the following: "Unless the parties to said action, by themselves or their attorneys, shall make and file with the clerk of the court in which said cause is pending, a written stipulation agreeing that some member of the bar of the Supreme Court of Wisconsin act as judge in said cause; and in that case the place of trial of such action shall not be changed, but the party so agreed upon may act as judge in said cause, and shall have all the powers and perform all the duties of the judge of said court in said cause."' Van Slyke v. Trempealeau County Farmers' Mutual Fire Insurance Co. cuit to hold court in another. The statute in question was well intended but obviously overlooked the constitutional restriction. It seems too manifest for discussion that, under the Constitution, no one can hold a Circuit Court but a circuit judge. Certainly not a court commissioner, who can only act as circuit judge at chambers. A fortiori, not one holding no judicial office: a gentleman of the bar assuming no judicial office, but merely chosen by the parties to an action to act as a sort of judicial arbitrator in it. If the statute before us could be upheld, we do not see why one could not which should assume to give to the parties, in all actions, in all courts, power to stipulate the judges off the bench, and pri vate persons into their seats. Judicial power is one of the attributes of sovereignty necessarily delegated in its exercise. The Constitution does not leave the delegation loose at the discretion of the legislature. It delegates the judicial power to constitutional courts, to be held by constitutional judges. And these constitutional judges take no power from the Constitution, can take none from the legislature, to subdelegate their judicial functions. See the instructive case on this subject of Cohen v. Hoff, 3 Brevard, 500. The respondent petitioned the court below, representing the judge to be related to the parties and necessarily and insensibly prejudiced in the case, but not praying change of the venue. We give no opinion whether the petition properly raised the question of prejudice. The learned judge himself evidently thought that it did. The parties thereupon filed a stipulation that Mr. Cole, a member of the bar of this court, should act as judge on the trial of the cause; and the court below made an order, reciting the petition for prejudice, and ordering the cause to be tried before Mr. Cole as judge of the court, in accordance with the statute. The trial appears to have taken place before Mr. Cole and a jury, who found for the respondent. There is in the record what purports to be a bill of exceptions and an order refusing a new trial, signed by Mr. Cole. The judgment is signed by the clerk, with a statement at its head that Mr. Cole sat as judge on the trial. We cannot look into the bill of exceptions or consider the order deny. ing a new trial, because both are unofficial and devoid of judicial authority. They are as any other irrelevant papers finding their way by acci dent or mistake into the record of a cause. And the only question for us is, whether we should hold the judgment supported by a presumption that it rests upon a proper trial of the issue, or should consider it as rendered by Mr. Cole, and therefore not properly the judgment of the court below |