The following opinion was filed October 12, 1886:
LyoN, J".1. The canse was regularly called and taken up for trial in its order. Counsel for the plaintiffs was opening the case and reading the pleadings to the court, and the court had denied two applications of counsel for the appellant, the distilling company, for postponement or delay, before the affidavit of prejudice was filed and a change of the place of trial demanded. The trial having been entered upon, as it certainly was, before the demand was made, such demand came too late, and the court properly disregarded it. The rule of Grobman v. Hahn, 59 Wis. 93, is applicable here, and decisive of the question.
2. A continuance was rightly denied, no sufficient cause therefor having been shown.
3. The two lien suits were properly consolidated, and the rights of all the lien claimants were properly determined in the findings and judgment herein. Such is the requirement of the statute in that behalf. R. S. sec. 3324.
4. This brings us to the merits. The defense to all the claims wras payment. The facts are that, after the demands accrued, one Leopold Wirth, who was then the president of the distilling company, gave his individual promissory notes to the claimants, respectively, and each account against the company was receipted by the creditor as paid by note, or by note of Leopold Wirth. There is no other satisfactory proof of any agreement or understanding that the notes of Wirth were taken and received by these claimants in payment and discharge of the original indebtedness of the distilling company. Indeed, the positive proof and all reasonable probabilities are that they were not so taken. Such notes w'ere brought into court by the payees therein named, and surrendered for cancellation. - The settled law *22of this state is that the acceptance, by a creditor, of the promissory note of his debtor for the amount of the debt, although accompanied by a receipt in full for the original demand, or the surrender of the note or other evidence of it, is not a discharge of such original debt, unless the creditor expressly agreed to receive such substituted note as a payment and discharge thereof; and it is immaterial whether the note be given for a precedent liability or one incurred at the time. This rule, as applied to lien cases, is embodied in sec. 3335, R. S., which is as follows: “ The taking of a promissory note, or other evidence of debt, for any such supplies or materials furnished, or labor or services done, shall not discharge the lien therefor hereby given, unless expressly received in payment therefor, and so specified therein.” The burden of proof is upon the debtor to show, b}'' direct and positive proof, that the creditor so agreed. A surrender by the creditor of the old note, or the receipting of the original account as paid in full by the new note, raises no presumption that the original debt has been paid.
The rule is the same if, as in this case, the note of a third person is thus received by the creditor for an antecedent indebtedness. The cases in this court which affirm the above rules (irrespective of the statute) are very numerous. It is sufficient to cite Ford v. Mitchell, 15 Wis. 304; Paine v. Voorhees, 26 Wis. 522; Aultman v. Jett, 42 Wis. 488; First Nat. Bank v. Case, 63 Wis. 504. Should any one be desirous of accumulating authorities to the same effect, both in this state and elsewhere, he will find scores of them cited in the opinions in the above cases, in the opinion by Mr. Justice Taylob in Hœflinger v. Wells, 47 Wis. 628, and in the several briefs of counsel herein.
5. An attempt was made on the trial to raise an equity in favor of the appellant by showing that, after Wirth had given his individual notes for the demands of the lien *23claimants, the appellant, acting upon the belief that an effectual novation had been accomplished and that "Wirth had become its creditor in place of the lien claimants, issued to Wirth certain of its capital stock in payment of such substituted indebtedness. This fact (if it be a fact) is of no importance. It is the fault of the appellant if it so issued its stock without obtaining an effectual release of its original indebtedness to the lien claimants. If loss has thereby ensued, the appellant must bear it.
No other errors are assigned of sufficient importance to require special notice. We find no valid reason for disturbing the judgment.
By the Court.— Judgment affirmed.
Upon a motion for a retasation of the costs in this court, the following opinion was filed November 23, 1886:
By the Cottkt. Motion by the defendants Weisel & Vilter for a retaxation of costs. The clerk taxed the disbursements of the moving parties against the appellant but refused to tax an additional attorney’s fee of $25 in their favor, which they claim under E. S. sec. 2949. The real respondents in the appeal to this court are the seven lien claimants, of -whom the moving parties are one. These all occupy the relation of plaintiffs in the action, although some of them, for some cause or other, are named as defendants. That they are so named is of no importance on the question of costs. These should be taxed as though all the claimants stood upon the record as plaintiffs. We think, however, that all the lien claimants together constitute “ the prevailing party ” in the sense in which that term is employed in sec. 2949, and hence that only $25 attorney’s fees should be taxed in the action. Such would be the result had six of the claimants assigned their claims to the seventh, and had the action been brought by him, as might *24have been done under sec. 3316. It is not perceived why more attorney’s fees should be allowed because the seven claimants elected to come into court individually (but regularly in one action) to prosecute their respective claims, instead of prosecuting them by a single representative.
Where several parties having separate claims are joined in one action, pursuant to a statute, as in this case, we think the same rule should prevail as to costs as would prevail were all the claimants jointly interested. In the latter case but one attorney’s fee could properly be taxed. It is immaterial here that the moving parties brought a separate action. They might have preserved their action by making all the lien claimants parties thereto before the same thing was done in this action.
It was proper to allow the taxable disbursements of each of the lien claimants, and probably each has an interest in the attorney’s fees taxed. However, that is a matter for adjustment between themselves.
The motion is denied, without costs, except clerk’s fees, and the taxation by the clerk is affirmed.