Noah Haynes Swayne

“ A verdict was found and judgment rendered for the defendant, Clise. The plaintiffs thereupon sued out this writ of error. It appears by the bill of exceptions found in the record that in two instances upon the trial evidence objected to by the plaintiffs was admitted and exceptions duly taken. The plaintiffs also excepted to the several instructions given by the court to the jury. It is insisted that each of these exceptions involves an error which is fatal to the judgment. ”

“ The plaintiff in error sued Edward Brinkman, as survivor of his late partner, Smid, in the Circuit Court of Grant County, to recover a large sum of money alleged to be due from Brinkman, as such survivor, to the plaintiffs. After the institution of the suit the plaintiffs applied to the county judge of Grant County for a writ of ne exeat against Brinkman. The writ was accordingly issued and placed in the hands of Clise, the defendant in this action, as the sheriff of that county for execution. ”

“ When such a defect exists, whether it be or be not brought to the attention of the court below or of this court by counsel, it is our duty to consider it and to give it effect. [4] This is decisive of the case before us. ”