Townsend and another vs. Peasley. perform, namely, drain the water from the ground upon which the defendant was mining. It is true, the plaintiffs call this one-sixth of the mineral which they were to receive, "rent," but this is evidently an inaccurate use of that word. It was more properly the measure of compensation which they were to receive for draining the defendant's mines. It was not otherwise than an agreement to pay so much money for the ser vices which the plaintiffs were to perform. So we should feel constrained to overrule the objection that the promise of the defendant was within the statute, if this were the only difficulty in the way of a recovery; but it is not so. On the same day that this parol agreement was made, the parties made a contract by which the defendant leased to the plaintiffs a certain portion of his lands, defined by metes and bounds, for mining purposes. This lease was reduced to writing and executed by the parties on the next day after the alleged contract sued on is said by the plaintiffs to have been made. As a consideration for the lease, the plaintiffs covenanted and agreed to work the tracts of land demised, in a good and miner-like manner, "and to use such machinery as may [might] be necessary to unwater and work said tracts or mines; and to pay as rent to said first party" one-sixth part of the mineral raised by them. Now it seems to us the effort is to prove a parol agreement which really relates to the subjectmatter of the written lease, and in effect adds an additional consideration for the covenants of the plaintiffs as there contained. The parol contract is essentially a part and parcel of the agreement which was reduced to writing, and which, upon well settled principles, we must assume contains the final stipulations of the parties. It is not claimed that anything was omitted from the written lease through fraud or mistake. It seems that the lease was drawn by Addison A. Townsend (a son of one of the plaintiffs), the next day after the terms of the lease were agreed upon, and after the making of the alleged parol contract to pay the one-sixth part of the mineral which Townsend and another vs. Peasley. should be raised by the defendant from his ground drained by the plaintiffs' pump; and he says that he asked the parties at the time if the written contract "had all in it," and that they were satisfied with it. The written lease provided that the plaintiffs should use such machinery as might be necessary to unwater "and work said tracts;" and it is not claimed that they have done any more than drain the water from their own mines by the pump which they have used. If the plaintiffs stipulated for compensation for a benefit which would result incidentally to the defendant from their doing what the lease contemplated they should do, this condition should have been incorporated in the written instrument. For it was a part of the consideration for the covenants there entered into, if ever such a stipulation was made. The counsel for the plaintiffs contends that the parol contract was not merged in the written lease, but was an entirely distinct and independent agreement. But it seems to us that it related to the same subject matter, and can not be separated from it. We can not see how the case would be different if the defendant were to insist upon his right to prove by parol that the agreement was that he was to have a one-fourth part of the mineral raised by the plaintiffs, instead of the onesixth stipulated for in the lease. With equal reason it might be claimed that the defendant could show another and separate contract in regard to the amount of rent to be paid by the plaintiffs, as that the plaintiffs may show that the consideration for the performance of the covenants on their part was something different from that mentioned in the lease. The evidence in both cases is to be excluded, under the rule recognized and enforced by all the authorities on the subject, that "parol contemporaneous evidence is inadmissible to contradict or vary the terms of a written instrument." Of course the intelligent counsel for the plaintiffs does not question the entire correctness of this rule of evidence, but he contends that it is not applicable to the case before us. He in Townsend and another vs. Peasley. sists that the subject matter of the two contracts is distinct and different, and that the previous parol contract by which the defendant agreed to pay the value of one-sixth of all the mineral which he should raise from ground drained by the plaint iffs' pump, was not merged in the written lease subsequently executed. But it seems to us this view is untenable, and that we must assume that the written lease contains the whole engagement of the parties in regard to draining and working the ground. The plaintiffs would have the court infer that they were to be paid an additional compensation to that mentioned in the lease, for "using such machinery as may be necessary to unwater and work said tracts or mines;" in other words, that a parol contemporaneous contract was made, by which they were to be paid another and additional consideration from that mentioned in the written instrument, for an advantage which might result to the defendant from a performance of the covenants they had undertaken to perform. This is really substi tuting a new and different contract for the one the parties entered into; and we think all the evidence relating to this parol contract should have been excluded from the consideration of the jury. The fact that no such agreement was inserted in the lease, affords a conclusive presumption that it was not in accordance with the final understanding and engagement of the parties. On the trial, the court held that this parol contract might be shown, and in various ways ruled contrary to these views. We therefore think the judgment must be reversed, and a new trial ordered. By the Court. So ordered. Townsend and another vs. Peasley. (Second case.) TOWNSEND and another vs. PEASLEY. (Second case.) Record on Appeal. On appeal from a justice's judgment for less than $15 damages, the cause being heard in the circuit court on the original papers and return of the justice, which must contain all the material evidence and the rulings of the justice, such return becomes a part of the record; and, on appeal to this court, it is included in the judgment roll, and no bill of exceptions is necessary to enable this court to review questions arising upon the evidence. APPEAL from the Circuit Court for La Fayette County. Cothren & Lanyon, for defendant, who was also appellant. Orton & Osborn, for plaintiffs, who were also respondents. COLE, J. This action was founded upon the same contract relied on in the former suit. It was tried before a justice, and resulted in a verdict in favor of the plaintiffs for less than $15. The defendant took an appeal to the circuit court, where the cause was tried on the return of the justice, made in conformity with section 217, ch. 120, R. S. The question as to the right of the plaintiffs to prove the parol contract is disposed of in the previous case. But it is objected that there is no bill of exceptions, and therefore this court can not review the case upon the merits. We suppose no bill of exceptions was necessary in order to enable us to consider the questions arising upon the evidence. The appeal in the circuit court had to be heard on the original papers and return of the justice, which the statute says must contain all the material evidence and rulings of the justice. Sec. 217. This return is annexed to and becomes a part of the judgment roll. Sec. 218. It is thus made part of the record, and, as a matter of course, did not require to be incorporated in a bill of exceptions. The case of Davidson v. Davidson, 10 Wis., 86, was one originating and tried in the circuit court. But see Pfeil v. Harboldt, 11 Wis., 9, where a case more in point will be found. State ex rel. Kickbush vs. Haflinger. By the Court.-The judgment of the circuit court is reversed, and the cause remanded to that court with directions to reverse the judgment of the justice. STATE ex rel. KICKBUSH VS. HEFLINGER. RECORD OF NATURALIZATION. (1) Is a judgment. (2) May be made by deputy clerk. QUO WARRANTO. (3) Complaint: averment of relator's eligibility to office. (4, 5) Defective record of judgment; circuit court takes judicial notice of its own records. JURISDICTION: STATE AND FEDERAL COURTS. (6) Writ of error to take cause to supreme court of U. S., disallowed. 1. Under the naturalization laws of the United States, the record of the admission of an alien to citizenship in any court authorized to perform the act is a record of a judgment of such court, which imports absolute verity, and cannot be questioned in any collateral proceeding. 2. Where such judgment is rendered in a circuit court of this state, the fact that the record is made up by a deputy clerk, and not by the clerk in person, does not affect its validity. 3. In an action to try title to a county office, an averment that the relator, at the time of the election under which he claims, was a legal and qualified elector of the county, and eligible to the office, is sufficient without a further allegation that he was a citizen of the United States. 4. In such an action in a circuit court of this state, the relator, to show that he was a citizen of the United States, produced the original record of his naturalization in the same court. Held, that the court would take judicial notice of its own records, and it is immaterial whether the word "circuit" appeared in the description of the court in such record, or not. 5. The omission of the word "circuit" before the word "court," in the copy of said record found in the bill of exceptions in such action, as filed in this court, is therefore immaterial; and on that ground appellant's motion for leave to withdraw the bill of exceptions for amendment in that particular, is denied. |