author: Cooley Oh. J. Graves J.

text:
      The County of Wayne v. The City of Detroit.

      Constitutional law: Penal laws: Library Fund: City ordinance: -Counties. The Constitution requires that the “legislature shall provide for the establishment of a library in each township, and all the lines collected in the several countie? and townships for any breach of the penal laws, shall be exclusively applied to the support of such libraries.” — Const. Art. 18, § 12.

      I-Ield, that a city ordinance, which punishes, by fine and imprisonment, the commission of acts which are breaches of law, wherever committed, is a penal law in the sense of the constitution.

      Held further, that the term counties and townships, as therein used, 'were meant to include all the municipal divisions of the state.

      Heard October 14th.

      Decided October 20th.

    Error to Way ire Circuit.
    This was an action of assumpsit, brought by the County of Wayne to recover certain fmes collected in the Central Police Station Court of the City of Detroit.
    The cause was tried by the court without a jury on tbe following stipulation:
    “It is hereby stipulated and agreed by and between tbe plaintiff and defendant in tbe above entitled suit, by their respective attorneys, that on the trial of said cause, the following facts will be admitted without further proof, and stand in all respects as if regularly and conclusively proven thereon, to wit:

      First: That the plaintiff is a public corporation, under the corporate name of “The County of Wayne,” and entitled to sue by its said corporate name.

      Second: That the defendant is a municipal corporation, capable of being sued by its corporate name, which is “The City of Detroit.”

      Third: That the Central Police Station Court, so called, of said City of Detroit, is established and held under the provisions of an act entitled, “An act to revise the charter of the City of Detroit, approved February 5, 1857,” approved March 12, 1861, and also under an ordinance of the City of Detroit, passed March 6, 1866, to which said ordinance reference is made for certainty.

      Fourth: That the said Central Police Station Court, so called, held its first session, and first went into operation .on the 2d day of April. A. D. 1866.

      Fifth,: That up to the commencement of this suit, said defendant, “The City of Detroit,” has received from the said Central Police Station Court, so called, since the establishment thereof, and still retains the sum of $14,992y,<$r, and that all of said money, so received and retained by said defendant, was received in payment of fines imposed by said court for offenses tried and determined therein.

      Sixth: That the said plaintiff has duly and legally demanded of said defendant the moneys so received by said defendant for said fines of said Central Police Station Court as aforesaid, as due the County of Wayne for the use of the several township libraries thereof, but that said defendant has refused to comply with said demand, and to pay over said moneys, or any part thereof to said plaintiff, and still does refuse so to do.

      Seventh: That the fines hereinbefore referred to were imposed upon parties complained of, and convicted of some violation of a city ordinance. In all cases the complaints made against the parties in said court, charged the offense to be contrary to the ordinances of the city, and mentioned the particular or ordinance violated.”
    Judgment was rendered in favor of the defendant.

      G. V. N. Lothrop, Geo. Ilebclen, Prosecuting Attorney, and D. B. & H. M. Duffield, for plaintiff in error.
    1. The plaintiff claims these fines under article 13, section 12 of the constitution of this state.
    That this includes cities as well as towns, has been virtually decided in the case of The People, etc. v. Treasurer of Wayne Co. 8 Mich. 292.

      ■ The only question in this case is, whether the term “penal laws,”'as used in the constitution, includes all those municipal ordinances which are passed for the protection of society and the punishment of offenses against society.
    What, then, do the words “penal laws” mean as here used in the constitution ?
    It is not confined to any restricted class, but includes all.
    This being a constitutional, not a statutory provision, these words are to be given their natural and fullest meaning.— Sedgw. on Const, and Stat. Law, p. 488.

    Plaintiff contends that any law deriving its authority from the supreme power of the state, either indirectly or directly, mediately or immediately, if it imposes a duty due to the public, and provides a punishment for the non-observance of that duty, is a penal law.
    By whom that law is enacted, whether by the state directly or by a city through the authority delegated to it by the state, does not change its character or nature.
    Whether it has primarily the supreme authority of the state to protect it, and whether it aims at the protection of the public, is the true and only test.
    Any other is productive of a confusion of terms.
    Compare tire state law prohibiting an indecent exposure of the person with the ordinance on the same subject.
    No distinction can be drawn between them. Each prohibits the act, and each provides a punishment for a disobedience of it.
    Each is a rule of action, with a penalty if that rule is broken.
    It is true that one is general and the other is local; but although local, it 'is not confined to any particular class of persons. All who come within the boundaries of cities, no matter from what place, state or country, are amenable to it, and must obey it, or suffer the punishment for disobedience.
    The language of the constitution is, “all fines assessed and collected in the several counties and townships.”

      Why are the words “and townships” used if it only includes legislative enactments?
    Would not a fine for a breach of the state law, though it was collected in a township, be collected in the county in which that township was? and could it be collected in any county unless it was collected in some township in that comity ?
    Suppose the provision read, “all fines assessed and collected in the city of Detroit and county of Wayne” for any breach of the penal laws. Would it not mean all laws that were strictly penal, whether they were in force only in the city of Detroit or throughout the entire country?
    It is claimed that plaintiff’s construction is unjust to the city; but it is not. The city has four-fifths of all the fines for breaches of state laws that are collected in the entire county. The rest of the county are entitled to and should receive one-fifth of all fines for breaches collected in the city as well as the rest of the county.
    But if, by prosecution under the city ordinances, they are taken from this library fund, the rest of the county can be deprived of all right to any share in the fines collected thereunder.

      2. But plaintiff claims these fines for another reason.
    No statute can take or direct any fund from the purpose to which the constitution has especially appropriated it. — 6 Ind. 88.

    The statute authorizing these fines to be paid into the city treasury does this.
    The only offenses that can be tried in this Central Station Court, are those against the ordinances prohibiting vagrancy, drunkenness, and disorderly conduct. — Gity Ordinance, March 6, 1866.

    Bach of these offenses is a breach of the state law, and punishable as such. — Sess. L. 1865, p. Ufl.

      A conviction and sentence under the city ordinance would bar a prosecution under the state law.— 3 Mo. 414; 1 Bishop on Or. L. § 666; 29 Mo. 330.

    If a conviction of an offense in this Central Station Court for a violation of a city ordinance is a bar to a prosecution under the state laws for the same offense or act, clearly the fines assessed in that court must go to the School Library fund. Otherwise, the legislature, by changing the mode of collection, have diverted the fines from the object to which they are appropriated by the constitution.

      Gray & Moran, and T. Bomeyn, for defendant in error.
    The Constihition, Art. b> § 38, gives full power to the legislature to confer upon townships, and cities, and villages legislative and administrative powers..
    For the exercise of this power, see Revised Charter of Detroit, p. 168, § 298.

    The money thus collected, and in the city treasury, is now claimed by the county for library purposes, under § 12 Art. IS, Constitution.

    There -are several questions connected with this inquiry, which are embraced in the following propositions:
    1. The provisions of the Constitution, Art. 13 § 12, relative to fines collected in counties and townships, were not intended to embrace the City of Detroit.
    The word “township,” as used in the Constitution, sometimes includes cities, and sometimes is used to denominate townships proper, to the exclusion of cities —11 Mich. 65.

    In this case the City of Detroit is not to be held to be within the constitutional provision, and the statutes founded on it, because —

      a. Complete provisions for her school system had been founded and were in operation when the Constitution was adopted. — Laws of 18f2, p. 112.

      b. The former Constitution did not specify townships. It referred only to finés assessed in counties for breaches of general penal laws. — Art. 10, §^. This did not give to the township libraries the penalties for violation of township orders and by-laws. — Rev. Stat. of 1838, p. 57; Laws of 1837, p. 121. See, also, Rev. Siat. of 1838, p. 10L

      c. The present constitution specifies “all fines collected in the several counties and townships.” This addition of the term “townships” to counties can not, by fair interpretation, be held to include the City of Detroit, for,

      First: That city had its own systerp, and ivas provided with schools. There was no occasion to give a strained meaning to the term “township” to admit her to the benefit of the school system.

      Second: There were special provisions for township libraries— O. L. %2356— and there was a distinct provision for a library in the city. — Laws of 181$, pp. 113, 111/., 115.

      . Third: The townships may annex penalties to orders and by - laws — Comp. L. § 1¡97. These may be sued for by the townships; and we may concede, for the purpose of this argument, that they should go to the library fund under the present constitution. These are distinct from the county fines as specified in 2 Comp. L. p. 1351.

    By fair construction the old constitution embraced only the county fines, unless the legislature had seen fit to appropriate others.
    The present constitution adds township fines, but does not specify city fines, which are to go to the city treasurer. Rev. Charter, p. 169, § 298.

      Fourth: There is good reason for this distinction, growing out of the greater expenditure for police purposes and for government in large cities.

      Fifth: The legislature has given this construction to the Constitution, for these city fines are to be paid to the city treasurer. Other fines are to go to the county treasury; and it is only from the latter fund that payment is directed to be made for library purposes. This legislative construction of the constitution will not be lightly overruled.

      Our conclusions on this proposition are that the system contemplated a distinct library in each township; that the first constitution required county fines to be appropriated to the support of these libraries; that the legislature in 1837 carried out this provision, and perhaps enlarged it; that the legislature of 1842, in regard to the City of Detroit, made special provision for that city, and provided in a special manner for one general library, and authorized the raising of money for that purpose by tax; and that the new constitution was not intended to embrace this special system in the City of Detroit.
    2. If the provision in question — Const. Art. IS, §12, embraces the City of Detroit, then, we insist, that the fund in question did not arise from fines assessed and collected for a breach of the penal laws, within the meaning of the constitution.

      a. The Constitution specifies penal laws.
    This means a general law of the state, enacted directly by the legislature, and with a fixed penalty. — Espinasse on Penal Stat. pp. 5 to 8.

      t. The offenses from which these fines arose, were not, and are not punished with- fines under the general law. They are simply violations of city ordinances. — Comp. L. p. 493; Laws of 1865, p. 147.

    These fines were imposed for the violation of the city ordinance, and not for the violation of the general law of the State.
    It is unnecessary to maintain — what we deem to be the law — that the same act may be an offense against the general statute, and also against a local ordinance, and may be punished in both aspects.— 3 E. D. Smith (W. Y. Com. Pl.) 156; 1 Wend. 380; 5 How. 432; 9 Id. 569; 14 Id. 19; 14 Ala. 400; 6 Ind. 352.

    These decisions recognize the doctrine that, even if these offenses were violations of the general penal laws of the state, and finable as such, still the city could, on its own account, collect and appropriate the fines for the violation of its authorized local ordinances.
    3. If we go, beyond the limitation of general penal laws, it must be on grounds that will include all penalties authorized to be imposed by corporations, or municipalities, or special bodies, under the laws of the state.
    4. The constitution gives the right to this fund, if any right exists. It requires that all fines, assessed and collected in the counties and townships, for any breach of the penal laws, shall be exclusively applied to the support of such libraries.
    These provisions apply to all fines for violation of penal laws.
    No deduction can be made for expenses of collection, nor for shares to informers.
    It is plain these provisions were not intended to apply to penalties for violation of local ordinances.
    The Detroit ordinances are in principle analogous to those for violation of by-laws of private and municipal corporations^ Noscitur a Sociis.” — 8 Mich. 393.

      5. Except as regulated by the constitution, the disposition of these funds is under the control of the legislature, and the legislature, clearly, has not given these to the county treasurer for the use of school libraries. — See Comp. L. § 2858; Rev. Charter, p. 169, § 298; 8 Mich. 398.

    The legislative construction of this and other similar acts will control this case, unless the repugnancy between them and the constitution be plain and clear. — Cooley’s Digest, § 605, and folloiving.

   Cooley Oh. J.

As I understand this case, all the fine moneys which the County seeks to recover from the City, in this suit, were imposed and collected under the authority of section 11 of chapter 13 of the Charter of Detroit, as amended in 1861. That section is as follows: “It shall be the duty of the Police Justice to attend at the police station house at such times as shall be prescribed by the Common Council; he shall summarily examine into the case of every person confined in said station house, and if he adjudge any person guilty of vagrancy, disorderly conduct, or any violation of the city ordinances relative to breaches of the peace, he may convict such person or persons thereof, and commit him or her to the Wayne County jail or House of Correction, for not more than six months, and impose a fine not exceeding $50; and in default of the immediate payment thereof, to commit such person or persons to the Wayne County jail, or to the House of Correction, for a term not exceeding six months, or until such fines be paid. All fines imposed shall be paid into the city treasury.” And then follow other provisions not bearing on the present case.

In 1866, the Common Council of Detroit adopted an ordinance making it the duty of the Police Justice to attend at the City Hall, or any other police station house where the lock-up shall be, on every day of the week, Sundays excepted, at the hour of 7 o’clock A. ar., to examine into, try and determine the case of every person confined in said station house, for vagrancy, disorderly conduct, or drunkenness, when the nature and circumstances of the case and complaint are such that the same may, and in the opinion of such justice should, be summarily disposed of without a jury, and, upon a conviction, to impose a punishment of not exceeding six months imprisonment, or $50 fine, besides the costs.

It will be perceived that this ordinance is not so broad in its scope as the section of the city charter above cited, and that instead of requiring the Police Justice to try and determine, at the time and place specified, the complaints for violations of the city ordinances relative to breaches of the peace, it limits his action to the eases of disorderly conduct— in which drunkenness is included — and vagrancy and that these are the cases which the charter, without the aid of any ordinance, makes punishable under specific penalties.

The learned Circuit Judge, who decided this case in the court below, has assumed that “the persons convicted and lined had violated no general law of the state, but they had violated a city ordinance, and for the breach of this ordinance, and only for this, were the fines in question imposed and collected.” In this, I think, he has been led into an error of fact, probably by the somewhat blind phraseology of the stipulation of counsel, which constituted the sole evidence before him. The ordinance, fn providing for the punishment of vagrancy and disorderly conduct, except so far as it designated a place and an hoar for hearing, was a mere re-enactment of the substance of the statute, and almost in the same words. No argument can be needed to demonstrate that the penal provisions of a law of the state are not superseded by an unnecessary municipal ordinance to the same effect, or that the penalty, when recovered in such a case, is to be regarded as recovered under the state law instead of under the ordinance.

Conceding this to be so, however, it is still insisted that the County is not entitled to the moneys, because the law under which the fines were imposed was in the nature of a mere regulation of municipal police, confined in its operation to the City of Detroit, and, therefore, not one of the penal laws which the constitution refers to, and which, it is argued, are those only which are of general and uniform operation throughout the state.

The constitution sets apart for a library fund all the fines collected in the several counties and townships, “for any breach of the penal laws.” That the law in question is a penal law is very certain. It is therefore clearly within the words of the constitution. To exclude it from the operation of those words we must import terms into the constitution in no manner indicated by the context, but which, we must assume were within the intent of the people, in adopting that instrument. We must assume that the people, when they said “any breach of the penal laws” meant only “any breach of such penal laws as are of general and uniform application.” It seems to me sufficient to say of this position, that it requires of us to add to the constitution, qualifying words of our own, suggested only by outside considerations, which may or may not have been of weight Avith the convention in framing, or the people in adopting, that instrument, and that there is no accepted canon of construction Avhich can justify this course.

If those actions, which, in the City of Detroit, are made punishable by fine and imprisonment under the statute in question, Avere not taken notice of by the Iuav as offenses when committed elseAvhere, other considerations Avould present themselves Avhich are not noAV in this case. There would be room then for saying that the act undertook, within that city, to make one of those regulations Avhich are usually made by municipal corporations for themselves for their oavii protection in regard to a matter Avhich elseAvhere Avould be one of indifference, but which disturbs the good order of the City by reason of local circumstances. It might be claimed, Avith much force, that that is not properly a penal law of the state, from whatever source emanating, which prohibits, in a particular locality, for local reasons, and as a mere police regulation, something which the general Iuav treats as.not criminal at all. But vagrants and disorderly persons are treated as offenders under laAvs which are applicable through the state at large, and which provide means to restrain their misconduct, and for their confinement in case they shall fail to give sureties for good behavdor. This case, therefore, only requires us to determine whether that is a penal law in the sense of the constitution, which punishes by fine and imprisonment, in the City of Detroit, actions which are breaches of .the laAV Avheiwer committed, but which elseAvhere are differently provided for and guarded against; and upon this point we have no doubt.

The only remaining question is, whether the fines collected in the City of Detroit can be said to fall among those which are “collected in the several counties and townships.” We think the Circuit Judge was correct in holding that they can. It is not necessary to declare that the word “townships” is used in a.generic sense, including cities, since it is plain that the fines are cpllected within a county, and by these two terms, “counties” and “townships,” the people, we think, meant to include, and have included, all the municipal divisions of the state. If this construction of the constitution works a hardship to the City of Detroit, in imposing upon that city the,expense of collecting fines which must be shared with the country towns, so, on the other hand, the contrary construction would work injustice to the country towns by giving to the City of Detroit the fines collected in the Recorder’s Court for breaches of the general laws of the state, while fines imposed in the country towns for breaches of the same laws must be shared with the city. The consideration of hardship can, therefore, have no weight in the case. The case, we think, is within the words as well as the intention of the constitution, and the plaintiff should have judgment.

Campbell and Christiancy JJ. concurred.

Graves J.

I agree with the Chief Justice in holding that the plaintiff is entitled to judgment, and I assent generally to the reasoning by which he has been conducted to the result.

I desire, however, to avoid all possible misapprehension to rest my concurrence expressly upon the circumstances which attend.the case.

I think the fines in question were, in substance and effect, imposed and collected under the eleventh section of the thirteenth chapter of the charter of the City of Detroit, which specified the offenses and affixed the penalties; and not under the ordinance, which, however necessary for the purpose of requiring the magistrate to attend at the designated place and officiate thereat, could not, 1~y repeating the whole or a portion, of the statute, transform the latter into an ordinanc~, or by its own inherent force supplement the statute or suspend its operation.

As the constitational provision can only have practical operation while "penal laws" are operative, it will remain to be determined hereafter whether the legislature may not, in given instances, suspend their operation, and whether such suspension will not be implied in particular cases from express acts, authorizing the enactment of specific ordinances.

It wifl also remain to be determined, when the questions arise, whether the same act may not be the subject of proseoution, under both ordinance and statute, in certain oases; and in other oases whether it may not be the subject of prosecution under either, though not under both.


source: Caselaw Access Project

author: "Graves J.

license: Public Domain

text:
    Charles W. Stange v. Milo Clemens et al.
    Declaration, when euf&cierst: Unuse of action, Evidence: Presumption. When a declaration contains in substance a cause of action, and to which the general issue is pleaded, the court will, after judgment, presume that all inaccuracies and defects in the plaintiff's statement of his cause of action were Supplied by proof upon the trial.
    Declaration: Contract: Smpiusaqe. Where a declaration set forth that a party agreed to deliver to another 15,000 cubic feet of stone, more or less, for 55 cents per cubic foot (at the rate of 0,000 cubic feet every month) for all atone delivered pursuant to the coutraet, and that the two 5cst loads should be paid for upon delivery, and that the amount thereafter delivered in any month should be paid for at the end of the same month; aiid also that defendant shonld pay for the same in the manner that he should get payment nuder another contract for the City Hall," but without setting forth or describing said contract: held, that the declaration sufficiently set forth an agreement for at least 0,000 feet, and that it will be presumed after judgment that the delivery of that quantity ~vr~C ,~rm'e,, on the trial.
    Held feert1~er, That the mode of payment was sufficiently explicit, and thai the reference to the time of payment on the City Hell contract was mere surplusage.
    Heard October 16th and 17th.
    Decided October 20th

      Error to Wayne Circuit.
    This was an action of assumpsit brought to recover damages for the breach of a contract.
    The declaration is as follows:
    “For that heretofore, to wit: At the City of Detroit, in said county and state, on the 22d day of May, A. D, 1867, the said plaintiffs entered into a contract, or agreement in writing, to and with the said defendant, to deliver fiiiu-n thousand cubic feet of block limestone, more or less, at the dock situated at the foot of Rivard street, Detroit, in said State of Michigan, at the rate of not less than six thousand cubic feet each and every month, from and after the date of the delivery of the bill, bills, or specifications as below, until the whole amount was delivered, at fifty-five cents per cubic' foot, to be delivered, measured, and marked with paint, and according to the bill or bills and specifications to be furnished by the defendant to the plaintiffs. And that, in consideration of the above, the defendant agreed, to and with the plaintiffs, to receive and unload the stone above described, at the place, in the manner, and in amount more or less, as above set forth; and agreed to pay the sum of fifty-five cents for each and every cubic foot thereof, when delivered in manner and form specified, and payable as follows, viz: The amount in full and in cash, at the rate aforesaid, for the first two loads of stone, when so delivered, and the balance each and every month, at the end thereof, of so much stone that may have been delivered during the same; in the same manner as said Charles Stange, defendant herein, could get payments from the City of Detroit, under a. certain contract for work, labor and materials provided for the new City Hall of said city (so called). The freight, however, upon the said stone, to be paid by the defendant, on each and every arrival of stone. That in pursuance of the said contract and agreement, the plaintiff did proceed to deliver fifteen thousand cubic feet of block limestone, more or less, to the defendant, at the dock situated at the foot of Bivard street, Detroit City, in said county and state, and at the rate of not less than six thousand cubic feet each and every month, from and after receiving the said bill, bills or specifications, as aforesaid, from the defendant, and the 'said stone being delivered, measured, and marked Avith paint, according to bill or bills or specifications furnished as aforesaid. But that the said defendant then refused, and has at all times refused, and still does refuse, etc. By means Avhercof the defendant has become liable to pay the plaintiff, etc.”
    To Avhich the common counts were added. The defendant pleaded the general issue.
    Judgment was rendered in favor of plaintiff.
    The folloAving errors were assigned:
    “ First: The first count of said amended declaration is uncertain and insufficient, by reason of the use of the words “more or less” therein.

      Second: Said first count of said amended declaration is defective, uncertain and insufficient, in not setting out how the said Stange Avas to “get payment from the City of Detroit, under a certain contract for work, labor and materials furnished for the neAV City Hall, of said city of Detroit,” upon which the liability of said Stange was to depend.

      Third: Said first count of said amended declaration is uncertain, and insufficient, in not sotting out the terms or the legal effect of said alleged contract for work, labor, and materials for said new City Hall.

      Fourth: Said first count of said amended declaration is uncertain and insufficient, in not setting out what Avere the “bill, bills, or specifications,” stated and referred to therein.

      Fifth: Said first count of said amended declaration does not set forth a state of facts Avhich renders the plaintiff in error liable in la\Ar, and is otherwise informal and insufficient.

      Sixth: Said first count does not contain the. allegation of a promise or undertaking by the defendant sufficient to sustain the action thereon.

      Seventh: The judgment in said cause being general
    upon the whole declaration and for other reasons is bad, and is not sufficient in form or substance.”

      Levi Bishop, for plaintiff in error.
    1. The first count of the declaration is bad. To agree to deliver a quantity, more or less, of stone does not constitute a binding obligation. It is void for uncertainty. While one party might claim that the quantity should be more, the other might claim that it should be much less, and between such adverse claims the alleged written agreement would not fix with certainty the legal rights of the parties. The measure which the parties have named is an uncertain one, and there is no averment in the declaration, which, being sustained by proof, could supply the defect.
    2. The defendant, it seems from the averments, was to pay the plaintiffs in the same manner that he should get his pay “under a certain contract,” which he had for work to be done on the new City Hall in Detroit. How was that? What was the assumpsit? What was the undertaking of the defendant? Here the very gist of the action is left a complete blank. We are charged with having broken an agreement, but we are not told what the promise or agreement was. Of course, it will not be forgotten that the plaintiff must set forth a cause of action in his declaration.
    Not only have the plaintiffs not set out how the defendant should or was to get his pay from the city, but they have not even stated how he in fact got it, or whether he ever got it at all; so that the declaration is bad in the two most material averments upon which a liability on the part of the defendant could arise.

      3. The contract of the defendant with the city for building the new City Hall, referred to in the declaration, was'as much a part of the alleged agreement between the plaintiffs and defendant, as was the latter agreement itself; and it could, in pleading, be no more passed over, as is done in this declaration, than could a material part of the latter agreement. The court can not see whether it is a binding obligation or not, or whether it gives the plaintiffs a right to recover. The plaintiff must always, in his pleading, show a good cause of action, or he must fail.
    6. The common counts are added to the count complained of, but the judgment being general on the whole declaration, and the special count being bad, the judgment must be reversed under the familiar rule in such cases.
    Where there are several counts in a declaration, and a general verdict is rendered on them all, the judgment must also be entire, in which case, if one of the counts be insufficient, judgment will be arrested, or a writ of error be sustainable, and the judgment will be arrested in toto, and no venire de novo will be awarded. — 1 Chitty’s Pl. 411.

      H. M. & W. K Oheever, and S. Lamed, for defendant in in error.
    1. The first assignment of Error is based upon the use of the words “more or less,” in the first count of the declaration; and it is insisted that the use of these words renders that count “uncertain, and insufficient.”
    These words occur three times, each time in connection with the quantity of limestone to be delivered. While under certain circumstances the words may be material, when from the. context they are necessary to fix and accurately determine a quantity — .as where A sold B all the goods in a certain store, being one thousand pounds of sugar, more or less, — eve submit in the connection in which they are used in this declaration, they are surplusage.

      2. . The second assignment is, that the failure to allege “how Stange was to get payment from the City of Detroit” upon his contract, etc., renders the count “uncertain and insufficient.” A simple reference to the language of the declaration will refute this. The count alleges fully and definitely the time and manner of payment by plaintiff in error to defendants in error, and then adds an immaterial averment that such payments are similar to those received by plaintiff in error, of the City of Detroit, on another contract. ■ Such reference was entirely unnecessary to explain the contract sued on. Its terms were complete and perfect in themselves, and fully set forth in the declaration.
    It is sufficient in pleading, to allege what will constitute a good cause of action or defense. All beyond this is surplusage.- — -2 Doug. 359.

    3. The third assignment is based upon a failure to set out the “terms or legal effect of said contract between Stange and the City of Detroit.” Our reasoning in reply to the second assignment of error applies equally to this.
    All surplusage and ambiguity is cured by verdict. — 5 Blackf. 443; 1 Harr. 133; 13 Vt. 68; Walker, Ch. 349.

    4. The seventh and last assignment of error is, that the “judgment being general upon the whole declaration (and for other reasons) is bad, and is not sufficient in form or substance.”
    Rejecting the allegation which we have placed in a parenthesis, as too general to be noticed by the court under rule 12, we insist the balance of this assignment is too general, in not specially alleging which of the several counts is bad, so as to vitiate the judgment.- — See Bule 12.

    But if the assignment was special so as to come within the rule, we submit that if, from the issue joined it appears that evidence was necessary to establish the facts alleged in the declaration, though defectively alleged, it will be presumed after verdict that such evidence was given. — 7 B. Monroe, 326; 6 Id. 379; 10 Shep. 384; 2 Sneed, 165; 10 Vt.

      565; 16 Conn. 579; 7 Mis. 314; 85 N. H. 357; 2 Gilman, 307; 7 Mich. 468; 6 Whart. 547; 7 Barr. 271.

    So also, if the declaration, though not strictly formal, set forth a substantial cause of action, and the defect is one which might have been remedied by-amendment, in the court below, it is sufficient after verdict.— 4 Allen, 141; 10 Ohio (N. S.) 488; 34 Penn. St. 324.

    So if enough appear upon the face of the declaration to show plaintiff had a good cause of action, all defects will be regarded as cured by verdict. — 14 Ark. 208; 2 Strobh. 32; 7 Barr. 293.

    It is entirely unnecessary, however, to refer to these authorities, or to inquire whether the count, if demurred to, could have been sustained. Under our statute and the decision of this court, it will be held sufficient after verdict. “The court will look at the issue actually made, and see if it can be fairly presumed that evidence necessary to establish a case has been given under it, and, if so, the court is to make that presumption and sustain the verdict.” — 13 Mich. 214; C. L. $ 4119.

   "Graves J.

The defendants in error brought assumpsit in the court below against Stange, and, in their declaration, joined with the common counts a special count upon an alleged contract in writing between the parties for the sale and delivery of a quantity of stone to the plaintiff in error.

The case was tried on the general issue before the court without a jury, and the defendants in error obtained a general judgment for §1,923.61

Stange now biings error, and alleges that the special count in the declaration was fatally defective for want of certainty, and that the facts actually set forth in it were not such as to constitute a cause of action. Upon inspection, the count complained of, appears to have been quite inartificially drawn, but we think the objections brought against it can not be maintained. That a special demurrer in the court below might have been interposed with success, is altogether probable, but the points submitted in the present posture of the case present very different questions.

If the declaration had been demurred to, the plaintiffs might have amended and in that way have cured the deficiencies and imperfections in the pleading.

However, the plaintiff in error did not think proper to raise the objections in the court below, but he joined an issue of fact upon the declaration as it stood, and went to trial upon it, and was defeated.

In such cases it is the policy of the law to sustain the judgment against all formal errors and defects in the record, and to presume that all inaccuracies and defects in the plaintiff’s statement of his cause of action were supplied by proof upon the trial, if in substance a cause of action was really stated.

It is claimed, on the part of the plaintiff in error, that by the agreement, as stated in the special count, the defendants in error were to deliver, and the plaintiff in error to-accept and pay for, fifteen thousand cubic feet of stone, “more or less,”.and that such an engagement would be void for uncertainty.

Without pausing to consider whether this would be so or not, if the agreement as set forth was open to the construction put upon it, we are satisfied that the contract, as it stands in the count, required the defendants in error to deliver, and the plaintiff in error to accept and pay for, at least six thousand cubic feet, and while it does not appear that more were delivered, it is evident that the court below must have found that quantity at least to have been delivered.

Upon no other supposition could the finding be supported unléss it should be claimed that the judgment was based upon the common counts. But that ground could not be taken, as it would admit that no recovery was had on the only count alleged to bes-'¿nvalid; and such admission would remove the only reason for the rule which makes a general verdict bad if a single count in the declaration is fatally erroneous.

By the contract, as set forth, the defendants in'error agreed to deliver fifteen thousand cubic feet, more or less, for fifty-five cents per cubic foot, at the rate of six thousand cubic feet each and every month until the whole amount should be delivered, and the plaintiff in error agreed to accept accordingly. This constituted a certain agreement for at least six thousand feet, and it is necessarily to be presumed as already .intimated that the delivery of that quantity according to the agreement was proved upon the trial.

It is further urged by the plaintiff in error that it appears from the special count that he was to pay in the same manner as he could get payments under a certain contract for work to be done on the new City Hall, in Detroit, and that the omission to set that contract forth in terms, or according to its legal effect was a fatal defect.

On referring to the count it is seen that the contract between the parties as therein stated, expressly provided that the plaintiff in error should pay at the rate of fifty-five cents per cubic foot, for all the stone delivered pursuant to the contract; that the two first loads should be fully paid for upon delivery, and that the amount thereafter delivered in any month should be paid for at the end of the same month.

We think the manner of payment as thus set forth, was sufficiently explicit, and that the passage added by the pleader, and commented on by the counsel for the plaintiff in error, was in no wise essential to substantiate the pleading, and was irrelevant, and immaterial.

It was mere surplusage, and might have been rejected. It can therefore furnish no foundation for an allegation of error.

The remaining objections to the record, which were pressed upon our attention, stand upon the same ground, and must be similarly answered. — Harris v. Phillips, 4 E. L. and Eq. 344.

We have thus noticed somewhat at length the objections made to the record in this case, and have found them untenable when tested by the principles of the common law; but we think they are likewise untenable if encountered by the provisions of the statute.— Comp- L. §§ 44-19,

The judgment must he affirmed, with costs.

The other Justices concurred.


author: Campbell J.

text:
    Casimir P. Boinay v. Wm. Coats.

      Injunction: Supwior equity. In order to authorise an injunction against the enforcement of a legal right, a case must be made out showing a clear equity, superior to that of the legal owner, and such as in a court of equity would control it.

      Injunction: Tarty. The rules and statutes imposing conditions on the issuing of injunctions to stay proceedings at law, are not confined to cases where the bill is filed by one of the parties to the legal proceedings, but embrace all attempts to restrain parties at the complaint of any one, from enforcing their rights by legal-process.

      Injunction: Circuit Court Commissioner: Jurisdiction. An injunction to stay proceedings at la-sv can in no case be granted by a Circuit Court Commissioner, without notice — Rule 112 — and an injunction allowed without notice is absolutely void, for want of jurisdiction in the commissioner.
    A Circuit Court Commissioner can not set aside the action of a Circuit Judge or Court.

      Order: Appeal. An order merely dissolving a temporary injunction, is not appealable.

      Heard October 15th.

      Decided October 20th.

    Appeal in Chancery from Wayne Circuit.
    The bill in this cause was filed to enjoin defendant from disturbing complainant’s possession of certain premises by virtue of certain proceedings at law which defendant had instituted.
    An ex parte injunction was granted by a Circuit Court Commissioner on the affidavit of complainant.
    The defendant entered a motion in the Circuit Court to dissolve the same. The complainant also notified the defendant that, at the hearing of the same, he would ask the court that an injunction be granted by the court upon the bill, and that certain proceedings at law in said court be stayed.
    The court dissolved the injunction, and refused complainant’s motion; whereupon complainant appealed.

      Levi Bishop, for complainant.
    1. -This case may be determined upon familiar principles of elementary law.
    The injunction prayed was the sole object sought by the bill.
    The injunction was allowed by a commissioner, and the defendant, without making any defense whatever to the suit, moved'to dissolve the injunction, and resisted the motion made by the complainant for another, if .the one already issued should be dissolved.
    3. In such a. proceeding the bill is taken as admitted to be true by the defendant. It is in fact equivalent to a demurrer ore tenus.

    And not only is the bill in such case admitted to be true, but every intendment and deduction, which can be fairly drawn from its language, taken in its plain and ordinary sense, is to prevail against him who makes the admission. — Hilliard on Injunctions, Chap. 8, §§ 12, 20, 28, 26; WalJcer Oh. 9.

    3. Whatever might be the legal rights of Mr. Coats and Mr. Campau inter sese, of which the complainant had no notice, and 'with which he had nothing to do, he sets forth strong grounds for relief by injunction, for the reasons, amongst others, sot forth by this court in the case of Cam-pan against Coats, that “new rights had accrued” in his favor, and an “innocent party had obtained rights,” which ought to be protected. — 17 Mich. %35.

    4. This was not a bill to stay proceedings at law, which takes place only between parties to the suit at law, or by or on behalf of some party or parties thereto.
    It is a bill to prevent irreparable injury from threatened proceedings under color of law, and under color of official authority.
    It is therefore in its principal features a bill qtiia timet brought because we fear the threatened injury.
    In this view the objection, that the injunction ivas allowed without notice under rule 112, had no force.
    Or, if it had force, still our motion for an injunction, to be allowed by the court at the hearing, ought to have been allowed.
    o. An appeal lies from both parts of this order, viz. that part dissolving the injunction, and that part by which another Avas refused.
    That order involved the whole merits of the case, as did the discussion of the motions by which it Avas elicited.
    Injunctions and receivers stand upon the same footing. As a general thing, both are but ancillary to the more general relief sought by the suit. The one takes property into the hands of the court by its officer; the other holds the property where it is in the hands of the party.
    "When such are their object and character, their alknvance or disalloAvance is a matter which rests in the sound discretion of the court, and no appeal lies in such case from its action.
    But when the injunction or receiver is the principal object of the bill, especially AArhen such is its only object, and Avlien that object involves the merits of the controvery, then the order allowing or disallowing the one or the other becomes a final order, from which an appeal lies to this court. Hilliard on Injunctions, Chap. 8, %15; 14 Mich. 458; 15 Id. 415.

    We ask that the order dissolving the injunction may be reversed; that such injunction may be declared in force; that we may have an injunction as prayed in our bill, and that we may have such other order and directions in the case as may restore us to our rights, and protect us in them.

      •8. T. Douglass, and O. J. O’Flynn, for defendant.
    1. The order appealed from is not a final order or decree. — O. L. § 8,596; 10 Mich. 898.

    2. There is no equity in the bill.
    1. Assuming the sufficiency of its averments to show that complainant was a bona fide purchaser, then the equities of the parties are equal, and a court of equity will assist neither of them. It never interferes in behalf of a ■bona fide purchaser who is not within the purview of the recording acts, to prevent the true owner from asserting his rights at law. — 18 Johns. 544, 62, 66; Lead. Gas. in Eg. 2 pl. pp. 88, 89, 94.

    'Unless, perhaps where the circumstances are such as to affect the conscience of the defendant, which is not this case. — Id. 88.

    And the complainant is clearly not within the protection of the recording acts.— O. L. § 2748.

    2. The averments of the bill are insufficient to show that complainant was a bona fide purchaser.

      a. The bill does not show that the Oampau executors had or pretended to have any title. — Lead. Cas. in Eq. 2 pl. pp. 77, 93, 95, 102; 4 Russ. 514.

      b. Or deny notice, except vaguely and evasively. Or aver that anything was paid or expended on account of the lease, before the judgment in favor of the executor was set aside, and complainant knew of it. — Id. 77, 78, 98, 94•

      c. The leasehold interest acquired by complainant was a chattel interest — personal property.— Williams on Beal Pr. 8, 9; B Kents Com. .81$, 81¡3; 1 Washb. on Beal Pr. 815.

    Any equity never interferes to protect, much less to assist even an honest purchaser of personal property against the true owner. — 20 Wend. 268, 275; 2 Kent's Com. 323,-4-5; Williams on Per. Pr. 311, 312.

    3. The order appealed from might properly have been made upon the sole ground that the injunction was to stay proceedings at law, and was granted by the commissioner, without security, in violation of the statute — C. L. § 8550 — and' without notice, in violation of rule.
   Campbell J.

Complainant filed a bill stating in substance that one William Coats, a former tenant, having been turned out of possession under a writ of restitution, complainant was put in upon a year’s lease by the landlords, or one of them, on the same day, and has since remained in possession, and raised crops still growing. That he had no knowledge of the rights of Coats, who subsequently got the proceedings reversed and obtained an order of restitution, which this bill is filed to enjoin.

There is no pretence set up in the bill that Coats is not legally entitled to the possession, and the facts alleged conclusively show the contrary. Complainant shows no title whatever beyond what any interloper might set up who had ventured to incur expenses of farming, on land to which he had no title. And even if he had shown.equities which the law could recognize, those of Coats are prior in point of time, and are also attendant upon a legal right; both of which grounds would be conclusive against the bill. The court below was correct in its decision, and its order should be affirmed.

But upon another ground, which we feel bound to notice, the decision must have been sustained, even if the bill had been meritorious. The injunction granted was a preliminary injunction to stay proceedings at law. It was urged that the rule and statutes imposing conditions on such injunctions only apply where the injunction is obtained by one party to a suit at law against the other. But we can see no force in this claim. A pai'ty who has a judgment has a right to enforce it, and it is just as serious an injury to him to have it stayed by one person as by another. In most eases, no one but a party would have any occasion for equitable relief, but, where there is such occasion, the effect of the stay is not changed by the character of the person suing it out; and there is no reason for allowing a third person to obstruct process on any easier terms than a party.

The rule of court concerning Injunction Masters— Rule 11% — absolutely prohibits them from granting injunctions to stay proceedings at law, without notice previously given to the adverse party. Having no jurisdiction to act without notice, the writ was actually void. It is also deserving of consideration whether the order for injunction was not broad enough to operate as a rescission of an order made by the Circuit Court. The rule does not permit the unseemly spectacle of a subordinate officer overruling the action of a Circuit Judge or Court.

It is also a general rule that no appeal will lie from an order dissolving a temporary injunction, which must always rest in the sound discretion of the Circuit Court. We do not feel called upon to inquire whether there can be any exception to this rule, as we have deemed it proper to express our views upon the other points, and our conclusion renders it unnecessary.

The order below is affirmed, with costs.

The other Justices concurred.


author: Cooley Ch. J.

text:
    Daniel Aylesworth v. Delia Herrington, et al.

      Partition Fences: When duty to keep up: Damages: Cattle. The purpose of the act regulating partition fences — L. 1861, p. 29U— was to compel every person to discharge his duty in regard to the same, at the peril of such losses as he might suffer from his neglect, "by the beasts of those persons to whom the duty was owing. This duty is created only for’ the protection of adjoining proprietors, and before the duty can become fixed, so as to require him to keep in repair any particular portion of such partition fence, it must appear, First, that the adjoining proprietor improves his land; and second, that either by consent or by the action of the fence viewers, a portion of the partition fence between them has been assigned to him to keep in repair. Adjoining proprietors may dispense, if they see fit, with partition fences, altogether, and if such fences are erected, no particular portion thereof belongs to either party to be kept in repair by him, until in some legal mode the partition is made. Until that is done, it will be presumed that the parlies choose to rely upon their common law liability for damages by their beasts.

      Fences: Adjoining owners. It appears that the cattle of defendants’ went on to plaintiff’s land from the adjoining premises 01 another. The court charged the jury that to maintain the action, the partition fences, if any, between plaintiff’s premises, and those adjoining must be of lawful height, or if the fence be divided, then the part belonging to the injured party should he of lawful height.

      Held, that admitting the cattle to have been rightfully on the adjoining premises, and to have got over the defective fence, the charge would still be erroneous, since it assumes that in case the partition fence between the plaintiff’s and the adjoining premises was not apportioned between them, the mere fact that such fence was insufficient will preclude a recovery; whereas, under that state of facts it would be evident that the plaintiff was under no greater obligation to repair than the adjoining owner himself, and the defendants could claim no protection, inasmuch as such adjoining owner could have claimed none himself, had the damage been done by his own beasts.

      Charge of Court: Successive trespasses. In an action of trespass for damages for several alleged trespasses by cattle of defendant, the jury rendered a verdict for the plaintiff; but fora less sum than he claimed. On exceptions by the plaintiff, to the charge of the court below, the defendant urged that as the jury found for the plaintiff, they must have found the fence through which the cattle entered sufficient, and that plaintiff had suffered nothing for which he could bring error. Held, that as several successive trespasses were complained of the court could not say that the jury did not find the fence sufficient at one time and insufficient at another.

      Heard October 16th.

      Decided October 20th.

    Error to Washtenaw Circuit.
    This was an action of trespass brought to recover damages alleged to have been committed by the cattle of defendant upon plaintiff’s premises.
    Judgment was rendered in favor of plaintiff.
    The tacts are stated in the opinion.

      S. E. Engle, for plaintiff in error.
    At common law no person is bound to fence against the beast of another. The owners of beasts are liable for any damage done by them .on the lands of another, and can have no defense to an action for such damages, unless by virtue of some statute, or by prescription or agreement. In this case the only defense claimed is the Act 179, Laws of 1861, repealing the act of 1847.
    But that act can not be so broadly construed as to support the charge in this case, applying it to a stranger, not adjoining the lands trespassed upon; for the language is very clear and explicit in stating what fence must be of lawful height before an action can be sustained, and it is first, a “partition” fence; second, “belonging to such person” (the plaintiff) “or by him to be kept in repair.”
    Now, as there is no such fence at common law, and no prescription or agreement is claimed, we have only to look into the statute to see what fences a person is' bound to keep in repair, and under what circumstances; and the 14-th Chap. Comp. L. contains all there is on the subject.
    The mere fact that the partition fence enclosing the plaintiff’s land, in whole or in part, is defective, is not enough to bar his action; the defendant who seeks to defend himself under the statute, must also show that such fence “-belonged to” the plaintiff, or was “by him to be kept in repair;” but that was not done in this case. It should have been done by showing Knickerbocker's lands improved, enclosed and occupied, and a division of the fence, and that the defective'portion “belonged to” Ayleswortk “to repair.”
    The spirit and intent of this whole fence law is simply this: Chap. 14, Comp. L. enables one of two adjoining occupants to impose on the other-, in a certain manner, the obligation of maintaining a certain portion of the fence between them; and when he has taken the proper steps for this purpose then the act of 1861 enables him (not a third person) to defend himself in an action by the other party who has failed to maintain his portion of the fence. It does not apply to a stranger defendant not occupying adjoining lands, for there can be no partition fence between him and the plaintiff; nor has he the right to compel plaintiff to build any fence whatever.
    But will it be claimed that when the provisions of Chap. H have been complied with, and the circumstances are such that an adjoining occupant might set up this defense, then a third party may also set up the same defense to an action against himself.
    If so, then the defendant’s liability would depend upon the uncertain arrangements of two persons, made without reference to himself, for their own convenience, subject to constant change, and in which he has no legal interest, and over which he has no control. Such a construction would be absurd. The above reasoning is sustained by all the authorities where the statutes were similar to ours. John' son v. Wing, S Mich. 163, is sound law. The Act of 1847 did not apply to partition fences. Said Chap. 11/. was in force as now, and also Comp. L. § 501/.9, which, however, did not defeat the action, because there was no. fence nor division of the line, and assignment to each a portion. — 6 Mass. 70; 4 Met. 589; 4 N. H. 36; 7 Id. 518.

      Palmer é Kinne, for defendants in error.
    The common law of England, touching the obligations and liabilities of the owners of enclosed lands, so far as the question of fences is concerned, has been entirely supplanted in this state by the positive provisions of our statute. — 3 Kent, 583.

    Prior to the act of 1847 (Sess., L. p. 181), no action for injuries upon enclosed lands' could be maintained, unless the divisional fences answered the requirements of the statute. If a party failed to enclose Ms field, he waived his right of action. The statutes of Connecticut and Vermont are identical with our statutes of 1846, and they were so construed in the cases of Studwell v. Rich, 14 Conn. 292, and Mooney v. Maynard, 1 Vert. 470, wherein the law, as laid down in the case of Rust v. Low, 6 Mass. 99, was denied. The law of 1847 we regard as simply a declaratory statute, and 'intended to abolish all supposed distinction between exterior and divisional fences. It is true that this court, in the case of Johnson v. Wing, 3 Mich. 163, construed that statute as applying only to exterior fences, but that decision, if not erroneous, is certainly anomalous.
    The Act 179, Sess. L. of 1861, seems to remove the obligation to maintain exterior fences, but renders the existence of the statutory partition fence an absolute condition precedent to an action at law.
    Under this broad and unqualified statutory enactment, the owner of enclosed lands can maintain no action against any tenant, whether adjoining or otherwise, unless, in the first instance, his partition fences are such as the law demands. He must satisfy the requirements' of the statute before he can invoke the aid of the courts. Hence there is no error in the charge or refusal of the Circuit Judge.
    The onus probandi is upon the plaintiff to show that his partition fence is of lawful height and description.
    In the absence of evidence, this court will presume that the cattle of defendants, if in the field of Mr. Knickerbocker, were in there rightfully.
    2. The bill of exceptions is fatally defective in that, not sufficient evidence is set forth, to enable this court to determine the propriety of the instructions given to the jury, or the materiality of the refusals to 'charge as requested; nor in what manner, if any, they could affect the result of this case. There is even no evidence to show where the cattle broke the enclosure of the plaintiff.

      On exceptions, every part of the charge or refusal of the court must be presumed to be correct and to be warranted by the evidence, so far as the bill does not show to the contrary. —10 Mich. 54.

    3. By giving a general verdict in favor of plaintiff, the jury found the partition fences to be of lawful height and in good repair, and the plaintiff therefore has not been injured by the charge of the court, if such charge were erroneous.
    The charge went to the whole cause of action and could in nowise affect the damages, except by defeating the action.
    This court will not correct errors which work no injury to the party suing out the writ. — 3 Mich. 55; 12 Id. 427; 13 Id. 70.

   Cooley Ch. J.

Aylesworth sued the defendants in trespass, and, on the trial, gave evidence tending to show that, on several occasions in the years 1866 and 1867, the cattle of the said defendants broke and entered the close of the plaintiff, and injured and destroyed, among other things, a quantity of standing corn, and a quantity of corn fodder. The plaintiff also gave evidence tending to show that the close or premises of the said defendants, by them occupied, did not, on any side, lie adjacent to or join the close of the plaintiff, on which the said trespassed were committed. Thereupon the defendants put in evidence, tending to show that the partition fence, between the plaintiff’s close and the adjoining close of one Mr. Knickerbocker, was not four and a half feet high, nor in good repair, and that it formed a part of the enclosure of one of the corn fields in which said trespasses were committed.

Upon this evidence the Circuit Judge charged the jury that, in order to maintain this action, the partition fences, if any, inclosing the field in whole or in part, must be of lawful height; or, if the feDce be divided, then the part belonging to the plaintiff must be of lawful height; and he refused to charge that, if the close of the plaintiff did not adjoin the close of the defendants, the plaintiff was not bound to keep up the partition fences between him and the adjoining occupants, in order to entitle him to maintain an action for the trespasses in question.

"Under this charge, the jury rendered a verdict for the plaintiff for less than he conceives he is entitled to, and he has therefore brought error. The question in the case is one of statutory construction, and arises upon Aci 179, of 1861, which provides that “No person shall be entitled to recover any sum of money, in any action at law, for damages done upon lands by any beast or beasts, unless the partition fences, by which such lands are wholly or in part enclosed, and belonging to such person, or by him to be kept in repair, shall be of the same height and description as is required by the provisions of Comp. L. § 605 ”; that is to say, a fence four feet and a half high and in good repair, or something, which the proper fence viewers shall determine to be equivalent "thereto. The view of the Circuit Judge appears to be that under this statute every owner of land is bound, at his peril, to see to it that all the partition fences between himself and all the adjoining proprietors are kept of the lawful height and in the proper condition;- or, in case such fences have been apportioned between himself and such proprietors, for the purposes of repair, then that his own portion is thus kept up, and that failing in this duty, he can have no remedy for damages against any one whose beasts shall commit injury upon his land, whether it be an adjoining proprietor or any other person.

"We are all of opinion that the Circuit Judge has erred in his construction of this statute. The purpose of its provisions was to compel every person to discharge his duty in regard to partition fences at the peril of such losses as he might suffer from the depredations committed in consequence of his neglect by the beasts of those persons to whom the duty was owing.. What that duty is will appear from other statutory provisions.

Comp. L. § 606, provides that the respective occupants of lands inclosed with fences shall keep up and maintain partition fences between their own and the next adjoining inclosures, so long as both parties continue to improve the same.

The next section provides that in case any party shall neglect to repair or rebuild any partition fence, which of right he ought to maintain, the aggrieved party may complain to the fence viewers, who, after due notice to each party, shall proceed to examine the same; and if they shall determine that the fence is insufficient, they shall signify the same in writing to the delinquent occupant of the land, and direct him to. repair or rebuild the same within such time as they shall judge reasonable, and if such fence shall not be repaired or rebuilt accordingly, it shall’ be lawful for the complainant to repair or rebuild the same; and by §‘608 he is given a remedy to recover double the costs of such rebuilding or repair.

Section 609 provides that when any controversy shall arise about the right of the respective occupants in partition fences, or their obligation to maintain the same, either party may apply to the fence viewers, who are authorized to apportion to each his share thereof, and to direct the time within which each party shall erect or repair his share of the fence; which assignment, being recorded in the township clerk’s office, shall be binding upon the parties and all succeeding occupants of the lands, and they shall be obliged always thereafter to maintain their respective portions of said fence. *

Section 610 provides that in case any party shall neglect or refuse to erect and maintain the part of any fence assigned to him by the fence viewers, the same may be erected and maintained by the aggrieved party, who shall be entitled to recover double the value thereof.

It is very evident, under these statutory provisions that the duty of any person to keep up a partition fence, is one created by the statute in favor and for the protection of the adjoining proprietor, and that before that duty can become fixed so as to require him to keep in repair any particular portion of such partition fence, it must appear: First, that the adjoining proprietor improves his land, and, second, that either by consent or by the action of the fence viewers, a portion of the partition fence between them has been assigned to him to keep in repair. Adjoining proprietors are at liberty, if they see fit, to dispense with partition fences altogether, and if such fences are erected, no particular portion thereof belongs to either to be kept in repair by him, until in some legal mode the partition is made. Until one or the other has taken the necessary steps to effectuate such division, it is to be presumed he is satisfied to trust his property to such securities as the rules of the common law can give him, and to respond in damages under those rules if his beasts commit injury on the lands of other persons.

In the present case the plaintiff does not appear to have been under any obligation to the defendants to keep up any fence whatever. Their lands did not adjoin, and consequently there could be no partition fence between them. The 'plaintiff was prima facie entitled to recover, and the defendants, to excuse themselves under the statute, must bring the case within it. But if there could be no partition fence between them, it is plain the statute could not apply. It is suggested that the cattle of defendants went upon the plaintiff’s land from the adjoining premises oi ' Knickerbocker, and that they must be presumed to have been rightfully upon such adjoining premises; but the answer to this is: First, That the case is not put to the jury on any such basis; and Second, That admitting them to have (beeu rightfully there, and to have got over the defective fence* the charge would still be erroneous, inasmuch as it assumes that in case the partition fence between the plaintiff and Knickerbocker was not apportioned between them, the mere fact that such fence was insufficient will preclude a recovery; whereas, under that state of facts, it would be evident that the plaintiff was under no greater obligation to repair than Knickerbocker himself, and that the defendants could claim no protection under the law, inasmuch as Knickerbocker, in whose rights they would stand, could have claimed none himself had the damage been done by his own beasts.

It is said, however, that admitting the charge to be erroneous, the judgment should still be affirmed, inasmuch as the jury returned a verdict for the plaintiff, and must therefore have found the fence sufficient. Had the injury complained of been a single trespass only, there would be force to this position. But successive trespasses were complained of, and we cannot say that the jury did not find the fence sufficient at some of the times, and insufficient at others, and consequently render a verdict for less than the plaintiff was justly entitled to. The judgment should be reversed, with costs, and a new trial ordered.

The other Justices concurred.


author: Campbell J.' Christianoy J.

text:
    Tefft v. Windsor.

      Bill of Mvceptions, when signed by Judge after resignation: New Trial. Where a bill of exceptions appeared on its face to have been signed while the judge who tried the cause was still in office, and it was in fact signed by stipulation afterwards upon condition, the court refused to allow effect to evidence to contradict the record and show this fact, and that the conditions had not been complied with, inasmuch as, under the circumstances, it was inequitable.
    A party will not be allowed to lose a right by the resignation of a judge, if there is any way to presume it.

      Heard and Bedded October 22d.

      Error to Wayne Circuit.
    This was a motion to dismiss the writ in this case, for the reason that the bill of exceptions was signed by the Circuit Judge after he had resigned his office.
    Mr. Duffield moved to dismiss the writ of error on the ground that the bill of exceptions was allowed to be signed by the Circuit Judge after he resigned his office, and to be dated back within his term, on the stipulation that the • writ should issue in time to have the case placed on the docket, and heard at the present term, which had not been done.
    Mr. Ilolbroolc, contra,

    showed that the delay in having the bill signed, and which was such as to prevent a Avrit issuing in time, was not caused by neglect, but by the engagements of the judge, and other circumstances for Avhich he was not responsible, and that on the first day of term, he, and the counsel for defendant had both applied' to the court to have the case put on the docket, but the application had been rejected, because the rules would not permit it.
   Campbell J.'

The writ of error and bill of exceptions are both in due form, and upon their face are entirely legal, and there is no denial that the bill is settled according to the facts. This being so, I think when a party is sought to be deprived of his legal right, on grounds outside of the record, he is entitled to have the benefit of any equities in his favor. In this case there Avould have been no difficulty in having the bill settled, but for the resignation of the judge. ' Where a party loses his exceptions on any such ground, it is always customary to grant a new trial if there is any showing of a probable ground of complaint on the rulings. In Scribner v. Gay, 5 Mich. 511, we held that a "bill signed by a judge -Avho had gone out of office, ought not to be stricken out, although there might have been irregularity in its settlement, as the party would be remediless without his own fault. In this case there has been entire good faith, and I think the case ought not to be dismissed.

Cooley Oh. J. and Graves J. concurred.

Christianoy J.

thought the party could not be relieved against his stipulation, although there was no want of good faith, as ho was bound by his agreement.


text:
    The People ex rel O. S. Wood v. Board of Registration of Fourth Ward, City of Detroit.

      Board of Registration, power of. Where a person appears before the Ward Board of Registration and claims to be registered, the Board are bound to examine him under oath and hear testimony offered by him. They have no right to pass upon the question of his legal right by mere personal inspection.

      Board of Registration: Mandamus: Issue. In an application for a mandamus to compel the Board to meet for the purpose of acting on the case of the relator, it was hold that no issue for trial could be ordered, as the duty to meet and consider the testimony was an imperative one.
    It is the duty of the Ward Board on such a case to pass upon the question one way or the other. They have no right to reserve questions for the consideration of the City Board of Review.

      Heard and decided October 23d.

      Manclcmms to the Board of Registration of the Fourth Ward of the City of Detroit.
    This was a petition for a mandamus to compel the respondents to meet as a Board of Registration and examine relator under oath, as required by the Registry Act, to hear any testimony that relator might offer as to his right to registration as an elector of said ward, and to register him, if, upon such examination, he was found qualified and entitled to registration.
    The petition set forth that relator applied to respondents while sitting as a Board of Registration, atad offered his own oath and other testimony to show that he had less than one fourth negro blood in his veins; that his father was a half breed Indian and his mother a mulatto; but that respondents refused to examine the relator, or to receive his testimony, but declined — simply upon a personal inspection — to register him: holding that he had more than one fourth negro blood, and was not a white man within the meaning of the constitutional provision relative to electors. The answer of respondents admitted the allegations of the petition, and claimed the right to reject applicants for registration, whenever, upon personal inspection, it appeared to the board that they were not entitled to such registration.
    The board, however, made a memorandum of the application, and agreed to submit it to the General Board of Registration for the city, which was to meet at the City Hall the Saturday before the next election.
    The motion being called up,

      Otto Kirclvner, for respondents,
    aslced that an issue be formed and sent down to be tried by a jury.

      Henry M. Oheever, for relator objected,
    and urged that as the petition was not for a writ of mandamus to compel the registration of the relator, but that the respondents meet and receive testimony and examine relator under oath as to his right to registration, no issue could be formed — the statute being imperative upon respondents to perform their duty, whatever might be their determination as to the relator’s right to registration after hearing the testimony.
    The Court held that the board was bound to examine the relator under oath, and to hear any testimony offered by him relative to his right to be registered as a lugal elector, and it was also their duty to draw a fair and reasonable conclusion from the evidence as to relator’s right to registration. That they had no right to pass upon the question of relator’s right to registration by a personal inspection merely. .
   The Court also held that no issue could be formed for trial, as the petition was for a writ of mandamus to compel the respondents to meet as a Board of Registration, and perform a duty which was imperative by the statute, i. e. to receive the evidence, and not to register the relator, which was a duty devolving upon them only in the event of his being shown entitled thereto under the evidence.

It was the duty of the members of tbe Ward Board to make an absolute decision one way or tbe other. They had no right to reserve the question for the consideration of the City Board. That Board has no porver to act except in cases coming within the special provisions of the charter. It acts merely as a Board of Review in specified cases, and can not entertain cases cognizable in tbe first place by the Ward Board.— City Charter, p. 290, §550. 3

Mandamus ordered.


text:
    William Brown v. The People.

      Felonious Homicide: Evidence of surrounding circumstances. Where a person is accused of a felonious homicide, it is both the right and the duty of the prosecution to give evidence of all the circumstances surrounding the discovery of the body of deceased which have any bearing upon the manner of the death, and any tendency to show whether it was natural, accidental, or felonious.
    Such evidence is a necessary preliminary to any -which shall be offered to connect any particular person with the homicide.

      Witness: Corroborative testimony: Hearsay. Where a witness had testified as to a certain fact existing on a certain day, another witness, for the purpose of fixing the date, was permitted to testify that he had been told by said witness of facts corroborating tbe statement: Held, that this evidence was inadmissible. Though offered for the purpose of fixing a date, its sole eflect was to strengthen the statement of a witness in court by proving that he had made the same statement out of court; it was therefore objectionable, for all the reasons which exclude hearsay evidence generally.

      Alibi: Evidence: Eebutting testimony:: Order of testimony. The defendant gave evidence tending to show an alibi. To meet this the prosecution gave evidence tending to contradict it. To rebut this the defendant offered to prove that the witnesses for the prosecution were mistaken as to the time when an occurrence sworn to by them, and supposed to be inconsistent with the alibi, took place. This evidence was rejected by the court on the ground that the defendant should have given it as a part of his evidence in chief-to.'establish the alibi.

      Held, That the court errecl in this ruling. This latter evidence formed no part of the alibi, and did not become material or relevant until after the prosecution had put in their evidence to contradict it. It then became the legal right of the defendant to rebut.
    A defendant has always a right to suppose that evidence will be offered and received in its logical order, and he is not bound to meet it before it becomes relevant to the case.
    It is not a matter of discretion with a court to reject evidence because it was not offered before the proper time for its admission.

      Heard October 22d.

      Decided October 23d.

    Error to Ionia Circuit.
    The plaintiff in error was convicted of the murder of one John Morse.
    Several exceptions were taken to the rulings of the court, respecting the admission of certain evidence, all of which are stated in the opinion.

      S. B. Soule, and T. Romeyn, for plaintiff in error.
    1. It is error to admit immaterial evidence before a jury, and without regard to whether they are instructed afterwards to disregard it or not.— 13 Johns. 350; 15 Id. 240; 2 Cow. 436; 19 Wend. 232; 9 Barb. 618; 10 B. Mon. 16; 35 Miss. 165; 2 Texas, 257; 10 B. Mon. 316; 21 Pick. 142; 22 Id. 427, 457, 397; 33 N. H. 171; 38 Id. 318; 2 Fost. 457; 2 Aik. 276; 3 Smeed, 86; 1 Munf. 288; 32 N. Y. 141, 509; 19 Id, 299; 31 Ala. 53; 33 Miss. 118.

    8. It is the duty of the court to see to it that no mischief is done by the admission of incompetent evidence, and that the illegal evidence be wholly withdrawn, and Avithdrawn for every purpose.— 5 S. & R. 352; 1 Penn. 389; 31 Id. 196; 8 W. & S. 391; 24 Pick. 12; 9 Gray 408; 14 Mich. 260.

    In criminal causes the defendant in such causes can not by silence Avaive any of his rights. —18 N. Y. 128; 16 Mich. 351.

    3. Evidence Avas introduced to sustain a Avitness previously sworn, by shoAving that he had stated the substance of his testimony to other persons.

      This was not competent evidence; it was hearsay, and is not within any of the exceptions to that kind of testimony. I Greenlf. Ev. §§05, 99, 7 Cranch, 290, 295; 1 Wheat. 6, 8; 3 T. R. 707.

    4. The defendant sought to sustain his alibi by offering proof in reply to the rebutting evidence of the People. The court rejected it. This was error.— 5 Allen (Mass.) 314; 32 Vt. {3 Shaw) 591; 28 Ga. 237; 8 Humph. 663.

      G. V. N. Lothrov, and A. B. Morse, for defendants in error.
    1. The first error alleged was the proof admitted as to a peculiar smell observed at the stable at the time of the discovery of the body. There was evidence tending to show that the odor was that of chloroform.
    This evidence was proper.
    All the surrounding circumstances noticed, at the time of the discovery of the body were proper evidence. Indeed, it would be censurable to withhold any one of any peculiarity. These circumstances furnish the foundation on which all subsequent investigation must proceed. Whether any given circumstance shall finally bear one way or the other, is of no consequence.
    2. It is competent to sustain a witness by showing that he had stated to other parties at a given time the same thing sworn to by him. The question is not as to the truth of what was stated, but only the fact of its having been said, and when said. — 1 Dutch. 566; 1 Greenlf. Ev. §§ 109, 123; 34 Vt. 604.

    3. It is well settled that a party entering on a matter should offer all his evidence relating to it. He can not rest, and, after the other side have replied, then resume and give further proof. — 1 Greenlf. Ev. 8 74; 2 Stark. 31; 11 Pick. 125.

    4. A new trial will not be granted because of evidence with reference to a future state of the case. And if evidence is admitted which can only become competent by the introduction of other evidence, no exception lies unless it clearly appears that such further evidence was not introduced.— 30 Vt. 252; 27 Geo. 125; 4 Allen (Mass.) 22; Hilliard N. T. 324.

   Cooley Ch. J.

The plaintiff in error was convicted of the murder of one John Morse. The circumstances of the case were very peculiar. Morse, it appears, was found, on the morning of August 1, 1867, suspended by a strap around his neck, lifeless but still warm. The appearance's indicated a suicide, but the theory of the prosecution was that he was first made insensible by other persons and then suspended, and the surroundings arranged to give these appearances. The first error alleged in the record, relates to the evidence of Henry J. Hall, who having found the body of the deceased, testified to -its condition and surroundings, and thereupon, to quote from the record, “ the counsel for the people claiming that John Morse was first made insensible by chloroform, and ,then hanged and killed, offered to prove by the witness that on the morning he found John Morse hanging in the stable, he .smelled a peculiar smell about the stable and barn; to the admission of which evidence the counsel for the defendant did then and there object, on the ground that simply proposing to prove a peculiar smell was too vague and indefinite, and the counsel for the people then said they intended to show that the said smell was the odor of the chloroform; and the counsel for the defendant insisted upon the objection that the proposition was too vague and indefinite, and therefore irrrelevant; and the said Circuit Judge overruled the objection, and the defendant’s counsel then and there excepted. And the said Henry J. Hall testified that he smelled a peculiar smell, and did not know What it was like.” Other similar evidence was allowed to be given by other witnesses, none of whom could tell at the time what the odor was, but one of them testified that having smelled a bottle of what she was told was chloroform, some five months afterwards, she found that the odor was the same as that about the barn, on the morning in question. No further evidence was given on the subject, and it was not claimed that there was any testimony to indicate that the death was preceded by the administration of chloroform, beyond that above stated.

When the cause was given to the jury by the Circuit Judge, he did not instruct them to disregard the above evidence, nor was he requested to do so. The plaintiff in error claims that his objection was a valid one when taken, and that its force could not be avoided, except by evidence, subsequently in some way connecting him with the chloroform. The prosecution, on the other hand, claim that they had a right to give the evidence as a part of the circumstances surrounding the discovery of the body, whether it had any tendency to connect the plaintiff in error with the death or not; and they also claim that if it had been offered as one link in the chain of evidence connecting the plaintiff in error with the alleged homicide, it would nevertheless, at the time, have been admissible, and if they failed to follow it up by other evidence, the plaintiff in error should have requested the judge to instruct the jury to disregard it, and excepted to his ruling if he failed to do so; and that, not having done so, the record discloses no error of which he has put himself in position to complain.

When a person is accused of a felonious homicide, it is both the right and the duty of the prosecution to give evidence of all those surrounding facts and circumstances which have any bearing upon the manner of the death, and any tendency to show whether it was natural, accidental, or felonious, and if the latter, whether the deceased was felo ele se, or died by the hand of another. It is both a right and a duty to give to the jury, by evidence, as complete a picture as possible of all the surroundings; and this irrespective entirely of any question of subsequently connecting the defendant with the transaction by other proofs. Such evidence is a necessary preliminary to any which shall be offered to connect any particular person with the homicide, and the more full and complete the prosecution make it, the better do they discharge their duty to the public, and, if he is innocent, to the defendant also.’

We have no doubt the evidence given in this case was admissible as a part of this preliminary showing: From the record, however, it does not appear to have been offered with this view, but as a part of a chain of evidence to establish the theory that the defendant had employed chloroform to stupify Morse, and then hung him. When offered for this purpose, but not in any manner followed up by evidence to establish other links in the chain, we are not, by any means, satisfied that the objection of the defendant to its vague and inconclusive character, or rather to its irrelevancy as an isolated fact bearing upon the question of . his guilt, did not hold good, without any subsequent request to have it stricken out or disregarded. • As we have found it necessary, on another ground, to order a new trial, and it is not likely that this question will arise again in the same form, we do not feel called upon to express a definite opinion upon it; but, at the same time, we can not avoid feeling that evidence thus introduced as bearing upon the guilt of the accused, and accompanied with a declaration which embodies the theory of the prosecution concerning the case, is exceedingly liable to impress the jury to the defendant’s prejudice, especially if, in the subsequent proceedings in the case, it is treated as proper evidence to be considered by the jury as tending to show the guilt of the accused.

The same remarks will apply to the testimony of witnesses concerning tracks discovered near the barn on the morning in question, though possibly in respect to that testimony there may be more room to claim that there was subsequent evidence from which the jury might connect the tracks with the defendant.

The next error alleged in the record relates to the testimony of Abner Wright. George Wright, a son of Abner, had testified that he saw Delos Eace, who seems to have been supposed particeps criminis, with another person, at a certain point, where, if .certain evidence introduced by defendant to establish an alibi was true, neither Eace nor himself could have been, on the 1st of August in the evening. The date here became of the last importance, and, as the record says, for the purpose of fixing the date, Abner Wright was allowed'to testify that George Wright told him, on the morning of August 2, that he saw Delos Eace and another person the night before.

We are not satisfied that this evidence was admissible. It was not evidence which proved the date of an event to which the former witness had testified, but its only force was to corroborate the statement that the first witness had seen, at a certain time, the persons he now testified about, by showing that, on another occasion, he had said he saw them. This was the effect, whatever may have been its ostensible object. It was bolstering up his statement in court by proof of a like statement out of court; and it was therefore open to all the objections to which hearsay evidence is usually subject.— Deshon v. Merchants Ins. Co. 11 Metc. 199; 1 Greenlf. Ev. § 469; Starkie Ev. p. 187; Rex v. Parker, 3 Doug. 242; Berkeley-Peerage Case, 2 Phill. Ev. 4th Ed. ( Cowen & Hill’s notes) p. 974, note 2; Robb. v. Hackley, 23 Wend. 50; 2 Russ. Cr. 938-9, 763; 5 Cow. 314. We had occasion to consider a kindred' point in Detroit and Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 99, and we think the evidence in this case was inadmissible, for reasons similar to those we then assigned.

The prosecution, also to disprove the alibi, introduced evidence to show that Delos Race was at the house of one Rose on the afternoon of August 1; that he came there with John Hall between two and four o’clock, and went away a little before four. -

To rebut this the defendant offered to prove by Hall and others, that he, Hall, was not at Rose’s on the afternoon stated, but that he and Race were there a day or two previous.

This evidence was rejected on the ground that it ought to have been given by the defendant as a part of his affirmative proof to establish the alibi.

The court, we think, was in error in this ruling. Until Rose was put upon the stand, there was nothing in the case to make this evidence either proper or relevant. It was no part of the proof of the alibi, because it related to a time prior to the offense, and was not inconsistent with the presence of defendant at the time and place of the death. It ^as insisted on the argument that inasmuch as this case had once before been tried, so that the defendant was apprised what evidence would be offered, it was his duty to anticipate it, and he could not possibly have been taken by surprise. This, however, is not a question of surprise, but of the proper order of proof.' The defendant had a right to suppose that evidence should be offered, and would be received in its logical order and sequence. He was not bound to offer evidence before it had become relevant to the case, nor could he rightfully conclude that, when its admissibility depended upon evidence to be given by the prosecution, the court would receive it before it had been made relevant by such other evidence being put in. It was also suggested that this being merely a question of the order of proof, the power of the judge presiding at the trial over it was discretionary. But it can never be a matter of discretion with a court to reject evidence because it was not offered before the proper time for its admission. When this evidence was offered, the defendant was entitled to it as a matter of right, and not of mere favor; and the rejection was clearly an error.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.