text:
    Barber v. Taylor.
    Where the plaintiff in a justice’s court exhibits a promissory note endorsed by defendant, and states that he declares against defendant as endorser, without malting any averment or statement as to the presentation of the note for payment, and notice of non-payment to defendant, the declaration is bad in substance and the judgment will be reversed.
    Error to Oakland Circuit Court.

      Stevens, for plaintiff in error.

      M. L. Drake, for defendant in error.
   By the court,

Miles, J.

This case originated in a-justice’s court, where the plaintiff below declared against the defendant "below as endorser of a promissory note, and exhibited the note. The defendant did not appear, the plaintiff had judgment, and the defendant appealed.

The defendant’s default for want of a plea having been entered in the circuit court, the plaintiff assessed his damages and had judgment.

The case seems to have been disposed of in the circuit upon the pleadings in the justice’s court; for, although a plea of the general issue is set forth on the record in the circuit, still, it appears not to have been allowed, as the defendant made an ineffectual effort to set aside the default.

A question is now made upon the insufficiency of the declaration in matter of substance, and the only error assigned, is, that it was defective in this respect.

In determining this question, wo may, perhaps, with propriety, at once resort to the rule so well established in New York and elsewhere, and which it is insisted should govern this court in reviewing the proceedings in a justice’s court, which seems to be substantially this, that every reasonable intendment should be made in favor of the judgment below. Whenever the court can possibly intend from the record that the merits were fairly tried, they will not test by technical rules the formality of the pleadings. 3 Caines’ R. 174. Technical nicety or legal precision is not required. Id. 153. So far as respects regularity and form, the rule is liberal. 1 Id. 594.

The rule might be stated thus: whenever the declaration contains a substantial statement of a cause of action, it shall be held sufficient* Substance is required, not form.

The undertaking of an endorser is conditional, dependent~upon 'nonpayment by the maker upon demand made at a proper day, and notice of such default to the endorser.

In an action upon a promissory note against the maker, the exhibition of the note in a justice’s court, with a statement by the plaintiff that he declares upon the note, may well be held sufficient. The express promise to pay, and the breach, both appear. But the exhibition of a blank endorsement does not show this.

It was well said on the argument, that a man may be an endorser forever without incurring liability. The plaintiff declares against the defendant as endorser, is the language. The endorsement appears: but beyond that there is no averment, either in the verbal statement or in the writing. These averments are necessary to show a cause of action. In this view, then, I think the declaration clearly insufficient in matter of substance; and • the defendant, never having appeared and plead, has waived nothing*

It appears from the record in the circuit court, that judgment was taken by default, and the plaintiff^ damages assessed. Now, we might well inquire, what is admitted by this default ? No more than is stated in the declaration, and if that does not contain a statement of a cause of action, such cause is not admitted by the default; and a mere assessment of the amount of plaintiff’s damages does not entitle him to judgment.

It was said upon the argument, that the defendant neglected to plead in the circuit court: that neglect would entitle the plaintiff to recover for the cause of action stated in his declaration, and that the amount of that recovery was to be shown to the court. The plaintiff should then, see that he has a good cause of action stated in his declaration, and if not, move to amend.

I think, then, upon every principle of law, this judgment ought not to be sustained. The defendant had it all his own way in both courts, and we cannot sustain the judgment without a greater relaxation of the rule applicable to the sufficiency of declarations, than has ever been permitted. Judgment reversed.


source: Caselaw Access Project

author: Mundy, J.

license: Public Domain

text:
    The Board of Supervisors of the County of St. Joseph v. Coffenbury et al.

    Where, in an aetionof debt on a bond, the declaration alleged that the defendants acknowledged themselves to be held and firmly hound unto “ the board of supervisors of the county of St. Joseph,” and by the bond produced on the trial they were hound unto “ the supervisors of the county of St. Joseph,” the court held there was a variance between the bond declared on and the one produced, and that plaintiffs should have averred in their declaration that the hond was made to them by the name mentioned in the bond.

      A bond in. these words, “Know all men by these presents, thatl, A. B., principal, and C. D., E. E., and G. H., sureties, are held,” &c., “for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors and administrators, severally, firmly by these presents,” is a joint as well as several hond.
    A hond given by the-treasurer of a county for the faithful performance of his official duties, to the hoard of supervisors of the same county, is a good and valid hond, although there is no statute requiring such a hond to be given.
    Case reserved from St. Joseph Circuit Court.

      Riley, for the plaintiffs.

      Gurney, for the defendants.
   By the court,

Mundy, J.

This was an action upon a treasurer’s bond, brought in the circuit court of St. Joseph county, in the name of the board of supervisors of the county of St. Joseph. In setting out the bond, the declaration alleged, that “the defendants acknowledged themselves to be held and firmly bound unto the board of supervisors of the county of St. Joseph.”

The bond is, in the obligatory part of it, in these words: “ Know all men by these presents, that I, Jacob W. Coffenbury, principal, and Alonso R. Hunt, A. Woodworth, Calvin Bronson, &c., of the county of St. Joseph and State of Michigan, are held and firmly bound unto the supervisors of the county of St. Joseph, aforesaid, in the penal sum of ten thousand dollars, lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors and administrators, severally, firmly by these presents. Signed with our hands, and sealed with our seals, this 25th day of December A. D. 1844.” The reading of the bond in evidence, was objected to: 1. For variance between the bond and declaration— the declaration being by the board of supervisors of the county of St. Joseph, while the obligation in the bond is to the supervisors of the county of St. Joseph. 2. That the bond is several and not joint. S. That the board of supervisors had no power to receive, or sue a bond from the county treasurer, and that the bond is a nullity.

The plaintiffs submitted to a nonsuit, with leave to move to set it aside, and these questions are reserved for our consideration. There would seem to be a well founded objection on the ground of variance. The bond is alleged to have been given to the plaintiffs in their corporate name, whereas it was given to the supervisors of the county of St. Joseph. This, however, is amendable. The plaintiffs may declare in their corporate name, and aver that the bond was made to them in the name mentioned in it. 13 John. R. 38; 10 Mass. 367.

The bond, upon a true construction of its language, is I think joint as well as several. Coffenbury as principal, and the others as sureties, in the commencement of the bond, declare that they are held and firmly bound unto the supervisors of the county of St. Joseph. This is the acknowledgment of a joint obligation; in the solvendum part of the bond, they bind themselves severally to pay.

This is no more than saying, we are held and firmly bound in a certain sum, and we and each of us bind ourselves to pay. We should not put upon the bond a construction which would make necessary a multiplicity of suits, unless such was the evident intention of the' parties. And we cannot suppose that they intended to make it necessary, in the legal enforcement of 'the bond, that each should be sued separately. “ I promise to pay,” in a note signed by a plurality of persons, whether as principals or as principal and sureties, is treated as a joint and several note. Story on Bills, 51. We jointly or severally,” is construed to mean, we jointly and severally. Id.

But it is said, that the supervisors had no power to require or receive a bond from the treasurer, and that it is a nullity.

Owing to inadvertence in legislation, there is no express direction that the bond should have been given to the supervisors of the county. By the Revised Statutes of 1888, p. 42, sec. 20, the treasurer is required to give a bond; and that section was in force when the bond was given. By the next section, he is directed to give the bond to the county commissioners of the county. By the act of 1842, Sess. L. 1842, p. 22, the office of county commissioner was abolished, and the supervisor system adopted; but the legislature, while they imposed upon the board of supervisors all the powers and duties of the board of county commissioners, omitted to make, in terms, an alteration in the law, so as to require the treasurer to give his official bond to the supervisors.

Inasmuch as the treasurer was required, before entering upon the duties of his office, to give bond, and as the supervisors were by law substituted in the place of the commissioners, clothed with all their powers and duties, I think we may well say, that the bond was properly given to them. But upon this point we are satisfied that, aside from any statutory provision, the bond was properly given, and is valid and binding upon the defendants.

It was a voluntary bond, given to the proper guardians of the interests of the county, to secure the faithful discharge of official duties by the financial officer of the county; and upon principles of public policy, as well as by adjudged cases, it is a valid obligation.

In 2 Lord Raymond, 1459, it was held that, though an executor is not obliged to give bail in error, yet the court may well take it; and if he will voluntarily enter into such a recognizance, it shall bind him.

In the case of the United States v. Tingey, 5 Peters 115, it was held, that a voluntary bond taken by authority of the proper officers of the treasury department, to whom the disbursement of public mo-, neys is entrusted, to secure the fidelity in official duties of a receiver or agent for disbursing of public moneys, is a binding contract between him and his sureties and the United States; although such bond may not be prescribed or required by any positive law. The right to take such a bond is an incident to the duties belonging to such a department ; and the United States being authorized in a political capacity to take it, there is no objection to its validity in a moral or legal sense. In 7 Conn. R. 548, it was held that a bond given by a town collector, for the faithful performance of his duty, without any provision of law requiring it, was a valid bond. The court say: The collector is not required to give a bond, nor are the selectmen authorized to take such bond. There is, indeed, no law directing that a bond shall be taken in such a case. It is not illegal in its nature, nor founded upon any illegal consideration. A collector is an authorized agent to collect moneys due the town. What forbids, then, the giving or taking a bond to secure the town?”

The same doctrine was held in Pennsylvania in regard to a prothonotary’s bond, 6 Binney, 292.

It must be certified to the circuit court for the county of St. Joseph, as the opinion of this court, that the bond is valid; that it was properly given to the supervisors of the county of St. Joseph, and that an action may be brought thereon by the hoard of supervisors of such county.

Certified accordingly.


text:
    The People ex. rel. Brower and Delany, v. The Judge of Wayne Co. Court.
    An order made by a county conl-t, dismissing an appeal, is a judgment that may be reviewed by the circuit court, within the meaning of the 67th section of the act to consolidate the laws in relation to county courts, and for other purposes. Sess. Jj. 1849, p. 288.
    A mandamus will bo allowed to set an inferior court in motion, but not for tho purpose of requiring it to come to any particular conclusion, or of retracing its steps where it has already acted; and this irrespective of the question, whether the party has or has not another remedy.
    ^Motion for a mandamus.

      Bishop, for the relators.

      Goodwin, for the respondent.
   By the court,

Mundy, J.

From the answer of the judge of Wayne county court to the rule to show cause why a mandamus should not issue; it appears that the relators, Brower and Delany, had appealed to the county court from a judgment of a justice of the peace, rendered against them in favor of Elston, for the use of Dalrymple, and that the county court dismissed the appeal for the want of a recognizance.

Upon these facts, this court is asked for a mandamus to compel the judge of the county court to undo what he has done, to reinstate the cause in his court, to permit the relators to file an amended recognizance, and to proceed to the trial of the cause.

It is a well settled rule, already recognized in several cases in this court, that a mandamus does not lie when the party has another and an adequate remedy. By section 67 ofthe act of 1849, to consolidate the laws in relation to county courts, and for other purposes, it is provided that, “ in all cases of judgment rendered by such court, in any civil suit, either party thinking himself aggrieved or injured by such judgment, or by any opinion or direction of the court, may remove the cause by bill of exceptions, certiorari or writ of error, into the circuit eourt for the same county in which such judgment was rendered.” It is said that an order dismissing an appeal is not a judgment within the meaning of this section.

In Massachusetts, an appeal was given by the statute from any judgment of the common pleas to the supreme court. Under this law, it has been repeatedly decided by the supreme court of that state, that any order of the common pleas which determined the cause in that court, was a judgment within the meaning of the law, from which an appeal lay.

In Bemis v. Faxon, 2 Mass. 141, it was decided that a motion granted in arrest of judgment in the common pleas, came within the statute. In Tappen v. Bruen, 5 Mass. 194, the writ had been issued against Matthias Bruen and James Bruen, and the common pleas dismissed the action for want of service of the process upon James. The supreme court said, “ that as an appeal only lay from the final decision.of the common pleas, it has been doubted, as the appeal in terms is given to the party aggrieved at the judgment, whether an appeal lies from an order of that court, finally determining the action there. If this provision is to extend only to judgments technically considered, the party would be without remedy, if he had no day in court given him by an order to arrest the judgment, or to' stay all proceedings in any action, which certainly could not be the intent of the legislature.”

In Wood v. Ross, 11 Mass 271, the court, after referring to the previous adjudications, and aflirming the doctrine that an appeal lay under their statute from any order calculated to terminate the suit, such as an order to stay all proceedings, say: “otherwise the court of common pleas, by refusing to enter a regular judgment, might oust this court of its appellate jurisdiction, given for the security of the citizen.”

The order of dismissal by the county court, put an end to this cause in that court; and unless such order be considered a judgment which may be reviewed upon certiorari in the circuit court, such order would, it appears to me, be final and conclusive upon the parties, and, in the language of the Massachusetts cases, the party aggrieved would be without remedy. The party, then, whose appeal has been dismissed by the county court, being provided with a remedy by the statute, I might stop here with the answer this affords to the present application. But the right of the party to a peremptory mandamus having been placed upon the ground of the inadequacy of the remedy by certiorari, and-the question having been fully argued, I think it well for this court to express its opinion upon what I consider to be the well established rule of this court in the exercise of its authority, by mandamus, over inferior judicial tribunals: and that is, that it will compel them to proceed, to act, but never direct them how to act,jmd this irrespective' of the question whether the party has another remedy or not.

In the case of The United States v. Lawrence, 3 Dallas 42, it was-determined by the supreme court of the United States, clearly and unanimously, after full argument, that, although they might command an inferior judge to proceed to judgment, yet they had no power to compel him to decide according to the dictates of any judgment but his own. In Ex parte Hoyt, 13 Peters 290, the supreme court say: “ It has been repeatedly declared by this court, that it will not by mandamus direct a judge what judgment to enter in a suit, but only require him to proceed to judgment.”

The same principle is laid down in Massachusetts, 10 Pickering 244; 20 Id. 495. The case of The People ex rel. Doughty, v. The Judges of Duchess C. P., 20 Wendell 658, is analagoits to the-one'now before us. The common pleas had dismissed' an .appeal from the judgment of a justice, upon the ground of a want of jurisdiction, the affidavit and appeal bond reciting a judgment as rendered by the justice on the eleventh day of M'arch, whereas the return of the justice showed a judgment rendered on the twelfth day of that month. The alternative writ required the judges of the common pleas to vacate the rule quashing the appeal, and to deny the motion to quash the appeal, or to show cause, &e. Bronson, J., delivering the opinion of the court said:, “ This presents an important question in relation to the appropriate office of the writ of mandamus. The court of common pleas, acting within the scope of its jurisdiction, has heard and decided a matter properly brought before it for adjudication, and the question is, whether we can by mandamus require that court to undo what it has done, on the ground that the decision was erroneous. I am of the opinion, that we possess no such power. I shall not stop to inquire whether the order quashing the appeal was such a final judgment upon the rights of the parties as may be reviewed by writ of error, or whether the relator has any other remedy. Commonwealth v. The Judges of the C. P. 3 Bin. 273. I place my opinion upon the broad ground, that the writ of mandamus cannot be awarded for the correction of judicial errors.” After referring to various authorities, English and American, the judge says: In general, a mandamus will' not be awarded where the party has another legal, remedy; hut the converse of the proposition does not hold true. There are many cases where, although the party has no other remedy, a mandamus will not lie-”

So in Elkins v. Athearn, 2 Denio 191, the supreme court of New York refused to entertain a motion for a mandamus, to compel the judges of the superior court of the city of New York to vacate a rule opening a judgment to enable- a- defendant to plead a bankrupt discharge,, though it was urged that the order interfered with vested rights. The supreme court said: The court acted judicially in making the order, and, whether right, or wrong, it is settled that judicial errors cannot be corrected by mandamus. The writ will be awarded to set an inferior court in motion, but not for the purpose of requiring the court to come to any particular decision, nor to retrace its steps when it has already acted-”

Whether we consider the case before us, then, in reference to the-remedy by certiorari, provided by law, or in reference to- the- true office' of the writ of mandamus,, the motion of the relators must be denied.

Motion denied.


text:
    The People ex rel. Attorney General v. Van Cleve.
    A statement of the number of votes given at an election for the respective candidates, required to be made out and filed in the county clerk’s office, by the board of county canvassers, is prima facie evidence only of the facts stated in it. the county canvass may be corrected by the township -oanvasses, and these by the Ballots themselves-
    The determination of the board of coimty canvassers of the- persons elected, is prima facie evidence only of their'election-

      A party may go behind the canvass to the ballots, if not beyond them, to show .the number of votes cast for him.

    'The duties of the board of canvassers are wholly ministerial.
    All it is necessary to state in a plea of title to an office, to an information in the nature of a quo warranto, is, the authority for .holding the election, the holding of it, and that defendant received the greatest number of votes for the office.
    The attorney general filed an information, in tlie nature of a quo warranto, against tlie defendant for exercising the office of judge of probate for "Washtenaw county. The plea of the defendant, which is too long to be given at length, stated, among other tilings, that notice .of a general election for said county, at which a judge of probate was ;to be elected, was given by the .sheriff as required by law, and that ■such election was held on the day mentioned in the notice, and that at such election defendant was, by tbe greatest number of votes given in ■tbe several townships of the county, elected -and chosen judge of probate for tlie county for the term of four years. It then stated a meeting of the board of county canvassers, and that they made out a'statement of the whole number of votes given for judge of probate for .the county, and that, on examining' the original statements, or certified copies thereof, and ascertaining the number of votes given in the county at such election for county officers, and among them for judge -of probate, they determined, conformably to tlie original statements'certified by the several boards of inspectors of the townships in such county, or certified copies thereof, that the defendant was, by the greatest number of votes given in said county at such election for judge of probate, duly elected to said‘Office: that they caused such determination to be subscribed, certified and attested by tlieir chairman and secretary, and to bo annexed to the statement of votes made out by them, and to be recorded with such statement, by the county clerk, &c., and that defendant had taken the oath of office. The plea did not aver that, by the statement of votes for judge of probate made out by them, it appeared defendant had the greatest number of votes, and that thereupon they determined he was elected. Neither did it aver that any sufficient statements of votes were made out in clue form of law, by the inspectors of the township elections, nor that such statements ever reached the county clerk’s office. The attorney general demurred, and the defendant joined in demurrer.

      Lothrop, attorney general, for the people.

      J. M. Howard and Bar stow, for defendant.

        Vide The People v. Tisdale, 1 Dong. Mich. R..59.

   By the court,

Mundy, J.

The main objection to the pica, is, that it is not averred that, by the statement made out by the county board of canvassers, it appeared that the defendant had the greatest number of votes, and that tkeroupion the board determined that he was elected. The objection involves an inquiry into the materiality of such averment, an inquiry to bo solved by a just view of the effect which this tabular statement of the board has upon the title of the defendant to the office. There is no doubt, that ho must in his plea show a good title: but if we shall come to the conclusion that that title is in no wise affected by any act or omission of the board (the defendant having their certificate of his election, and having taken the oath of office and entered upon its duties), the materiality of such averment cannot bo sustained.

The very ingenious argument of the attorney general seemed to me to be based upon the supposition that the determination of the board was somewhat in the nature of a judgment at law, binding and conclusive, and that it afforded the only evidence of the rights of the contestants for this office; for, from the information, it does appear that Elias M. Skinner claims title thereto; and that such judgment must be based and appear to be based upon this statement as the finding of the board, as a judgment at law is rendered upon the verdict of the jury. But no such conclusive effect is given by the statute to this determination of the board, nor to the statement of the board, upon which it may properly be said to be founded.

The whole scope of the statute goes to show that this statement is but prima facie evidence: that in every contested election you may go behind it: that the county canvass may be corrected by the township canvasses; and that these may be corrected by the ballots themselves. A contested election is not to be decided by what does or does not appear in any of these statements.

This is evident from sec. 8 of ch. 6, R. S., p. 46, which directs that “ the inspectors shall preserve a true copy of all ballots rejected as defective, with the originals attached, and deliver the same to the township clerk, to be filed in his office, and the other ballots they shall seal up and deliver to said clerk, who shall keep the same in his office, until the next general election, subject only to the inspection of the proper authorities in case of a contested election.” The preceding section provides for the filing and preservation, in the respective township clerks’ offices, of the statements of the township canvassers.

If, then, the statement of the county board is not conclusive upon the rights of the contestants, any averment in the plea, that it appeared from such statement that the defendant had the largest number of votes, would be an immaterial averment. The election of the defendant and his title to the office depend upon his having received the largest number of votes given for the office, and this title is properly set out in the plea.

All that is said about the proceedings of the county board is immaterial : it may be struck out as surplusage, and will not vitiate even on a special demurrer. 1 Chitty’s Pl. 229. The precedents in Went-worth, and there is a large collection of them, go to show that all that is necessary for the defendant to state in showing title, is the authority to hold the election, the holding of it, and that the defendant received the largest or the requisite number of votes. All this is properly averred in the plea in this case, with the further averments of the determination of the .county board of canvassers in his favor, their certificate of his election, and his qualification by taking the oath of office.

The other objections to the p>lea, that it does not aver that any sufficient statements were made out in the requisite form by the inspectors of the township elections; or, that they ever reached the county clerk’s office, as well as the one before noticed, arc based upon the supposition that the defendant’s title may depend upon the regularity of the proceedings of the boards of canvassers; and that, to -establish his title, he must set out and show a strict fulfilment of their duty by these several boards.

The answer to this is, it seems to me, to be found in those provisions of the statute before referred to, which show that you may go behind all these proceedings — that you may go to the ballots, if not beyond them, in search of proof of the due election of either the person hold-mg, or the person claiming- the office. And this is as it should be. In a republican government, where the exercise of official j>ower is but a derivative from the people, through the medium of the ballot box, it would be a monstrous doctrine that would subject the public will and the public voice, thus expressed, to .be defeated by either the ignorance or the corruption of any board of canvassers.

The duties of these boards are singly, ministerial: their whole duty-consists in ascertaining- who are elected, and in authenticating- and preserving the evidence of such election. It surely cannot be maintained that their omissions or mistakes are to have a controlling influence up,on the election itself. It is true that their certificate is the authority upon which the pierson who receives it enters upon the office, and it is to him prima facie evidence of his title thereto; but it is onlyyirima facie evidence.

If an issue had been made, as it well might haye been, by a replication denying that the defendant was, by the greatest number ,o.f votes given in the several townships of the county of Washtenaw, elected judge of probate, the very fact which the attorney general supposes he would have been able to show, if the p>lea had contained an averment that it appeared from the statement of the county board .of canvassers that the defendant had the largest number of votes, upon which he could have taken issue, might have been shown by him, if such statement would show it. So that the view which I have taken of this plea, does not deny the people the advantage of any evidence properly within their reach.

The view which I have taken of .the effect of the statement of the county board, is fully sustained by the opinion of the supreme court .of the state of New York, in the cases of the People v. Ferguson, 8 Cowen 102; and the People v. Vail, 20 Wendell 14.

In the case of the People a. Ferguson, it was held, notwithstanding the determination of the canvassers in favor of the defendant, that the court and jury could look even beyond the ballot boxes, and inquire •whether votes given for H. F- Yates were not intended by the voters for Henry F. Yates. In the case of the People v. Vail, Justice Bronson, .delivering the opinion of the court, said: “ The decision of the canvassers was conclusive in every form in which the question could arise, except that of a direct proceeding by quo warranto, to try the right. But to hold it conclusive in this proceeding, would be nothing less than saying-, that the- will of the electors, plainly expressed in the forms prescribed by law, may be utterly defeated by the negligence, mistake, or fraud of those who are appointed to register the results of an election.”

The demurrer must be overruled, with leave for the attorney general to reply.

Demurrer overruled.


author: Mundt, J.

text:
    Buchoz v. Grandjean and Grandjean.
    A partner cannot submit partnership matters to arbitration without a special authority for that purpose from his copartners.
    Error to- Wayne Circuit Court. Henry and Gustave Grandjean, who were partners, sued Buchoz in- the court below, in assumpsit on an award. On the trial of the cause, the plaintiffs below, after having introduced evidence of the submission to arbitration by Buchoz and Henry Grandjean, on behalf of himself and Gustave, who was not present when the submission was entered into, offered the award of the arbitrators in evidence, which was objected to by defendant’s counsel, for the reason, that no authority was shown by Henry* from Gustave to enter into the submission for him, Gustave. The objection was overruled, and the award received in evidence.

      Bishop and HawJcins, for plaintiff in error.

      Goodwin, for defendants in error.
   By the court,

Mundt, J.

The reason for the ruling of the court, as appears from the bill of exceptions, was, “ that if the defendant chose to submit for the consideration of the arbitrators, matters existing and in dispute between him and the two Grandjeans, he could do so: and if he did so, and the account was made out in the name of the two Grandjeans and himself, and submitted without objection on his part, be coulcl not now object that Henry Grandjean Was not authorized to act in behalf of himself and brother, as partners.” Such conduct on the part of Buchoz might amount to an admission that Henry and Gustave were partners. It showed that he had treated them as such, and then considered them, as such: but it would not amount to an admission that Iienry was authorized' by his copartner to submit for him. Buchoz might have supposed, and he undoubtedly acted upon the supposition, that the submission was mutually .binding upon the parties interested in the matters submitted; and, so far as his rights and his liabilities were concerned, he was only interested to know, that the submission was such that under it a valid award might be made; that that which he sought, a final settlement of the matters in difference between himself and the Grandjeans, might be amicably effected.

His conduct, it ajipears to me, is free from all suspicion: the dishonesty, if any there was, was upon the other side; and it would be a strange perversion of justice to determine that an award made under such circumstances, while it could not be enforced against Gustave Grandjean, should be binding- upon Buchoz.

In the case of Eastman v. Burleigh and Burleigh, 2 N. H. Rep. 484, the parties entered into a rule before a magistrate for a reference of the matters in controversey between them, but the agreement to refer was signed by “ Daniel Burleigh, for himself and William Burleigh” and the rule recited that “ Daniel Burleigh, for himself and brother, William Burleigh” on the one part, applied for it. It nowhere appearing in the proceedings that Daniel had any authority from William to enter into the rule, or that William had any thing to do with the proceedings, the supreme court reversed the judgment upon the ground, that the award being, as to William, a mere nullity, it was not final as between the parties to it, and was, therefore, void. Woodbury, X, in delivering the opinion of the court, said: “ It is now too late for William, after the award is in his favor, to ratify the doings of his brother and this was based upon the ground that a suit would lie in his favor upon the claims submitted: and thus the award not only fail to be final as to him, but lose all the mutuality intended by the plaintiff aud the referees. Kyd, in his Treatise on Awards, p. 148, speaking of the rule, that the award must be mutual, says, that the principal requisite to form that mutuality, is nothing more than that the thing awarded to be done» should be a final discharge of all future claim' by the party in whose favor the award is made; against the other for the cause submitted.

That one partner cannot submit to arbitration partnership matters, without the special authority of his copartner-, is laid down in 3 Bingham 101, and 1 Peters 222, and- is, we think, the proper rule.

The judgment of the circuit court must be reversed.

Judgment reversed.


author: Mtjndy, J.

text:
    Cargill v. Power.
    A mortgage containing a power'of sale was given in January, 184?, and tlie mortgaged promises were advertised and sold under tlie power in July, 1848. Between tlie giving of tlie mortgage and tlie sale, the law regulating tlie time of redemption by the' m'orfcgagor whs changed from two years to one year. It wa3 held, that the law in existence at the time the mortgage was executed and delivered, was a part of the contract: that the mortgagor bad two years from«th.0 sale to redeem in, and that the law in force at the time the sale took place, restricting the redemption to one'year, was unconstitutional, so far as it' rospeclod mortgages in existence at the time the law took effect.
    Case reserved from Oakland Circuit Court.

      Van Dyhe and Emmons, for plaintiff.

      Joy, for defendant.
   By the court,

Mtjndy, J.

This was in its inception an action to recover the possession of land under a summary proceeding in the county court of Oakland, authorized by section 3 of chapter 123 of the Revised Statutes, which, as one of the causes for such proceedings, is in this language: “ When any person shall continue in possession of any premises sold by virtue ©f any mortgage or execution, after the expiration of the time limited by law for the redemption of such premises.”

By the proceedings in the case, it appears that the plaintiff the assignee of a mortgage executed in January, 1847, by the defendant to Myron Botsford and P. Dean Warner, purchased the premises at an auction sale, under the power contained in the mortgage, in July, 1848 and received a deed for the same from the sheriff of Oakland county,' with an endorsement thereon that the deed would become operative in one year from that time.

The proceedings, it is stipulated, were regular, and the only question reserved, is, has the mortgagor, under the law, one or two years for redemption? It is insisted, that, as the mortgage was executed after the passage of the Revised Statutes, but before they took effect, that the intention of the parties was, that the proceedings under the power to sell should be regulated, and their rights governed, by the provisions of the Revised Statutes.

No statute has, ex proprio vigore, any force until it becomes the law of the land. All persons are hound to know, and are supposed to know, what the law is: and as it is that which is to govern the actions and conduct of nren, their contracts, it is to be presumed, are made in reference to it, unless the contrary is expressly shown.

It does not appear that the parties knew what were the provisions of the Revised Statutes: what alterations they had made in that which was the subject matter of their contract. They knew that there .was a law in force regulating the time and mode of sale under the usual power contained in a mortgage — regulating, also, the execution of the deed of conveyance, and its operation and effect. With what^propriety, then, can we say, that the legal presumption is, that their contract, in its very terms made in reference-to-the’law, was not made in reference to the law in force, but in reference to one which might never take effect ? This cannot be the legal presumption; and when we consider that at the time when the contract was made, the legislature was in session, and that in these days of multitudinous legislation there is no great stability in the law itself, ,1 think it cannot be said that such is a rational presumption.

The Revised Statutes having given to the purchaser a right of action against the mortgagor continuing in possession of the mortgaged premises after the expiration of the time limited by law for their redemption, and the same statutes having reduced the time of redemption given by the law of 1844 from two years to one, it is necessary to consider the constitutionality of these provisions of the revised statutes, as they bear upon the inhibition in the constitution of the United States against the enactment by a state legislature of any law impairing the obligation of contracts.

The counsel for the plaintiff insisted, in his argument, that the mortgage is but a remedy provided by the parties for the enforcement of their contract, and, like all other remedies, is subject to the reasonable control of the legislature. There is no doubt, that whatever belongs to the remedy ¡may be altered .according to the will of the state: provided, the alteration does not impair the obligation of the contract. This is the settled .doctrine of the supreme court of the United States. 8 Wheaton 1; 1 Howard 316. But the remedy thus spoken of, is that which the law gives for the enforcement of contracts: within the meaning of which a mortgage security does not .come. A mortgage contract is no more a remedy than tire bond which accompanies it — they are both the evidence of and security for the indebtedness, and .the one is as much subject to legislative alteration as the other: they aré both the subject matter and the foundation of suits, and these suits as constituting the means of enforcing the one or the .other contract, is the remedy afforded by the law.

The remedy is subject to legislative modification, the mortgage contract is not. Its terms were agreed upon by the parties, and they afford the rule for the measurement of the rights of mortgagor and mortgagee.

By the power contained in the mortgage, the mortgagee was authorized, upon non-payment of the money mentioned in the accompanying bond, to sell the mortgaged premises at public auction, and on such sale to execute to the purchaser a deed of conveyance in law, pursuant to the statute in such case made and provided. The statute thus referred to, and embodied in the mortgage, became as much a part of the contract as if the terms of its provision had been literally- inserted therein. The statute provided, that the officer or person making the sale should execute the deed and endorse thereon the time when it would become operative in law, and deposit it with the register of deeds; that if the premises were not redeemed within two years, the register should deliver the deed to the purchaser; that the deed from the expiration of the time to redeem, should vest in the purchaser the mortgagor’s interest in the premises, and that in ease of redemption the register should destroy the deed.

It is impossible to read the mortgage in connection with the statute so incorporated in it, without seeing that mutual rights are provided for: that the agreement of the parties is, that if the mortgagee, in the enforcement of his rights, shall proceed under the power, that the mortgagor shall have two years from the time of the sale to redeem the premises: that until that time the deed is not to become .operative, but is to remain as an escrow in the hands of the register of deeds of the county.

There is in this connection this further important consideration: that under this mortgage contract the mortgagor had the legal right; as against the mortgagee and all other persons, to continue in the possession of the mortgaged premises until his title thereto, by his failure to redeem, was absolutely gone. The act .of 1843, continued in force by the Revised Statutes, prohibits the action of ejectment by the mortgagee before his title shall become absolute, upon a foreclosure of the mortgage. The right of the mortgagor, then, .under his contract, is to remain in the quiet possession of the premises for two years after they shall have been sold under the power, within which time he may redeem.

This is not, as was said by counsel, a mere right of action, a remedy to re-obtain the title which he had conveyed away. It is a right of possession accompanied with the right, by an act in pais, to reinstate himself fully in all his original interest in the property. When, then, the legislature intermeddles and takes away from the mortgagor his legal right of possession for a year, they do not act upon any remedy which tho law has provided; they act upon the agreement of the parties, and endeavour to give to a power an .operation and effect different from the intention of ihe parties.

The object of the constitutional provision, it was said in Bronson v. Kinzie, 1 Howard 311, was to maintain the integrity of contracts, and to secure their faithful execution throughout the Union. The tendency and effect of the legislative provisions we have been considering are, to impair the integrity of this mortgage contract, and impose upon it an execution contrary to its meaning and the intention of the parties: and in my opinion we are in duty bound to pronounce them, so far forth, to be unconstitutional, As was said in Bronson v. Kinzie, of the act of the legislature of Illinois, giving to the mortgagor a right to redeem, which he had not by the contract; so we must say of these provisions of our Revised Statutes; they appear to the court not to act merely on the remedy, but directly upon the contract: for as in that case the law engrafted upon the contract new conditions, injurious and unjust to the mortgagee, so in this, the law has altered .the conditions of it, injuriously and unjustly to the mortgagor.

It must be certified to the circuit court of Oakland county, that in the opinion of this court, the mortgagor has two years after the sale to redeem the mortgaged premises.

Certified accordingly.


author: Gueen, J.

text:
    Sorrel v. Brewster.
    Plaintiff, wrote to defendant, 111 have on hand a lot of furs, which. I am anxious to sell.” Defendant replied, “ I have this day written to Mr. Thomas G. Raitte, of Jforwalk, who is my agent, to make you a visit for the purpose of purchasing your furs, and I hope and trust that you and Mr. Raitte will be able to make a bargain for your lot of furs.” Raitte afterwards called on plaintiff and purchased the furs, paying part cash and giving a note for the balance, in the name of defendant. EM, 1st, that defendant was liable to plaintiff for the unpaid ."balance, as for goods sold and delivered; 2d, that evidence offered by defendant to prove an agreement between him and Raitte, by which defendant was to advance money to Raitte to pirrehase furs in his (Raitte’s) name, and to have alien for his advances on the furs purchased, &c., was properly rejeetedby the court on the trial.
    Motion for a new trial, reserved from Wayne Circuit Court. Assumpsit by Sorrel against Brewster. The declaration contain a special count, on a note executed by one Raitte, in the name of defendant, and the common counts for goods sold and delivered. On the trial the following letters were given in evidence, to prove the agency of Raitte:
    “Lithopolis, April 9lh, 1844.
    Mr. Brewster :
    Sir — I hare to say to you that I have on hand a lot of five to eight thousand fur skins, which I am anxious to sell. If you are in the fur market, you will do well to come and buy my furs. They will run two-thuds prime. There are five hundred mink, cat and fox, the rest coon.' .If you come at all, come the first of May. Write me, saying whether you will come or not. M. M. Sorrel.”
    “Defiance, Ohio,April24, 1844.
    Mr. M. M. Sorrel, Lithopolis:
    Sir, — On my return to Fort Wayne yesterday from the south, I found your letter of the 9th inst., advising me that you had from five to eight thousand fur skins, mostly coon, which you wish to sell, and which I should he glad to purchase.
    As my business will detain me one or two weeks yet in this country, I have this day written to Mr. Thomas G. Raitte, of Norwalk, who is my agent, to make you a visit for the purpose of purchasing your furs, and I hope and trust that you and Mr. R. will be able to make a bargain for your lot of furs. Yery respectfully yours,
    William Brewster.”
    “Defiance, April 24, 1844,
    Mr. Thos. G. Raitte, Norwalk.
    Sir, — * * * * * . * Annexed I hand you a copy of a letter which I received yesterday at Wayne from Mr. Sorrel, of Lithopolis, and I wish you to see Mr. S. without delay, and see if you can purchase his lot of furs, but if you cannot make a trade with him for them, I wish you to write me at Fort Wayne (to which place I shall return and remain one or two weeks), and also to Maumee City and Detroit, so that I shall get yohr letter at one of those p’aces, and I will go and see Mr. S. with-'you, and see if I can’t purchase them. If you can’t buy Mr. S.’s furs, I wish you to make an arrangement with him to keep them until I can see him, as it will not do for us to lose so large a lot of furs this season.

      ft ft & * * ft *

    Yery truly yours,
    William Brewster.”
    Raitte went to Lithopolis, on the first of May, 1844, and on the next day made an arrangement with the plaintiff, in the name of defendant, for the purchase of the furs. Four hundred dollars were paid at that time, and, in June following, he called for the furs, and on taking an account of them, they were found to amount to $5,858 87. Raitte said they amounted to more than he supposed they would, when ha bargained for them, and gave it as a reason for not having funds sufficient with him to pay the whole amount at that time, and for giving the defendant’s note for the balance, amounting to $896 87. Defendant proved an agreement between himself and Raitte, by which he was to advance money to Raitte to purchase furs, and to have a lien upon the furs purchased for the money advanced, and showed a settlement had been had between them, in which the furs purchased of plaintiff were included. This testimony was received subject to objection, and was afterwards ruled out of the case by the court. There was also evidence in regard to a custom among dealers in the fur trade to pay cash for furs, which is fully stated in the opinion of the court.

      Van Dylce ank Emmons, for plaintiff.

      Joy, for defendant.
   By the court,

Gueen, J.

The first inquiry which naturally arises in this case, is, what was the nature and extent of Raitte’s agency, in purchasing the furs ip question, as between Brewster, his principal, and the plaintiff? If we are able to arrive at a satisfactory conclusion upon this question, there will be no serious difficulty in determining the rights of the parties involved in this suit.

The only evidence of Raitte’s power to act as the agent of Brewster, is found in the letters of Brewster, dated the 24th of April, 1844, one of which is addressed to the plaintiff, and the other to Raitte.

In his letter to the plaintiff, the defendant says: “ On my return to Fort Wayne yesterday from the south, I found your letter of the 9th inst., advising me that you had from five thousand to eight thousand fur skins, mostly coon, which you wished to sell, and which I should be glad to purchase. As my business will detain me one or two weeks yet in this country, I have this day written to Mr. Thos. G. Raitte, of Norwalk, who is my agent, to make you a visit for the purpose of purchasing your furs, and I hope and trust that you and Mr. R. will be able to make a bargain for your lot of furs.”

In his letter to Raitte of the same date, the defendant says: “ Annexed I hand you a copy of a letter which I received yesterday at ■ Wayne, from Mr. Sorrel of Lithopolis, and I wish you to see Mr. S. without delay, and see if you can purchase his lot of furs; but if you cannot make a trade with, him for them, I wish you to write me at Fort Wayne (to which place I shall return and remain one or two weeks), and also to Maumee City and Detroit, so- that I shall get your letter at one of those places, and I will go and see Mr. S. with you, and see if I can’t purchase them. If you can’t buy Mr. S.’s furs, I wish you to make an agreement with him to keep them until I can see him, as it will not do for us to- lose so large a lot of furs this season.”

There does not appear to he any evidence that the contents of this last letter wore made known to the plaintiff at or before the time of the sale, nor is it at all material whether such was the fact or not, there being nothing in it which does not harmonize perfectly with that written to the plaintiff.

The defendant, then, must he held bound by the acts of Raitte, as his agent, to the extent' to which he1 held him out, in his letter to the plaintiff, as being authorized-to act for him. In that letter he informs the plaintiff that Raitte is his agent, and that he has written to him to make the plaintiff a visit for the purpose of purchasing the lot of furs in question, and hopes they will be able to make a bargain for them. Here is no restriction, or limitation, or condition whatever imposed upon1 the power of the agent in- making the purchase1 indicated by the principal; but the- fact of the agency is announced in the most general terms, accompanied by an invitation on the part of the principal to 'the plaintiff to bargain with the agent as such.

This case is, then, very clearly distinguishable from that class of special agencies, in which the agency is not held out by the principal, by any acts, or declarations, or implications, to he general in regard to the particular act or business. In the latter case it must from necessity be construed according to its real nature and extent; and the other party must act at his own peril, and is bound to inquire into the nature and extent of the authority actually conferred. Story on Agency, sec. 133.

In a note to this section, Judge Story very justly remarks, that “the whole difficulty, ih considering this doctrine, arises from confounding two things with each other, which are essentially distinct, namely, the extent of the authority given to au agent, whether it be limited or unlimited, with the nature of the agency in which he is employed, whether it he general or special. A person may he a general agent, that is, he may be employed in the general business of his principal, and yet lie may be privately limited ia the exercise of his agency, by certain instructions given by his principal, fin- within the general scope of that business. On the other hand, he may be a special agent,- that is, ha may be employed for a particular object only, and yet he may have an unlimited authority to act within the scope of his agency in that particular affair, os he may be limited therein by like instructions.”

In sec. 133, before referred to, Judge Story illustrates the doctrine thus: “ If a merchant should ajopoint a special agent pro hac vice, to buy or sell a cargo of cotton for him in his discretion, and he should, by an ojien letter, state that he had so authorized the agent to buy or sell on his account, and that he would ratify and confirm his acts in the premises ; a person who should deal with the agent upon the faith of that letter, and buy or sell the cargo of cotton accordingly, would be entitled to hold the principal bound by the acts- of the agent, although the latter might have violated his secret instructions as to the price of the cotton purchased or sold.” See, also, note 2 to sec. 127, id.

Let us apjoly this doctrine, thus exjolained and illustrated, to the case before us. The defendant advertises the jfiaintiff that Raitte is his agent, and that as such he has requested him to visit the jilaintiff, to purchase his lot of furs. He makes no allusion whatever to any restriction of his agent’s power. He thus recommends Raitte to the plaintiff’s confidence, as one with whom he may safely bargain for the sale of his furs. What,-then, had any arrangement between the defendant and Raitte, of which the jolaintiff had no knowledge, to do with the rights of the parties? The plaintiff has a right to hold the defendant bound by the acts of his agent, within the scope of that agent’s authority, notwithstanding such agent may have acted in bad faith towards his principal, or violated any instructions, or private understanding or agreement between them. Hence, the testimony which was offered on the part of the defendant-, of an agreement between himself and Raitte, in regard to the advance of moneys and the jourchase of furs, was irrelevant, and the objection made to its introduction was well grounded. Putting this testimony entirely out of the case, the facts appear thus: Raitte, as the agent of the defendant, acting under a general authority for that purpose, bargained with the jolaintiff for his entire lot of furs. Upon ascertaining' the quantity, it appeared that they amounted to more than the parties had antieijoated, and Raitte stated to the plaintiff that be liad, not funds enough with him to pay the entire sum to which they amounted. For the balance, it was then agreed that Raitte should give the plaintiff Brewster’s due bill, which was done, and the furs were all afterwards delivered by Raitte to the defendant.

The special counts in the declaration, it is said in the argument, have been nol prossed, and the plaintiff seeks to recover only upon the indebitatus assumpsit count for goods sold and delivered. Upon this state of facts, is the plaintiff entitled to recover ?

The objection based upon the relation existing between Brewster and Raitte, has already been disposed of. But it is further urged, that by the custom or usage of the fur trade, an agent employed in that business, could not incur a debt against his principal. In order to show such custom in this particular trade, two witnesses were examined on the part of the defendant, Mr. Abbott and Mr. Dudgeon, but he seems to have relied principally upon the testimony of Abbott, who had been engaged in the trade for many years. His testimony upon this point, as reported, is as follows:. “ He has known instances of agents- buying furs, under peculiar circumltances, to a greater amount than they had funds.. The general mode is to buj’ for cash, for furs are always a cash article. Never heard of furs sold for a credit. If I send a man to a place to buy furs, and he unexpectedly finds more than he or I expected, and he has not money enough, he might draw for a balance. "We generally give instructions. Pie would not he authorized to give a note. There is nothing in the course of trade which would prohibit his getting a credit for a small balance, but it is a question of law whether he would he authorized to do so.”

The agent in this case was authorized to purchase the furs. líe appears to have been provided with a large sum, iu money and drafts, but not sufficient to pay in full. As to the mode of completing the purchase under these circumstances, he had no instructions.. What modo ■ might he adoj>t, consistently with the usage of the trade ? He could not, according to the testimony of Mr. Abbott, give a note in the name of his principal, and, if I understand the witness, he could not get a credit for the balance. By credit, however, he evidently does not mean an indebtedness due in presentí, because, while ho says he never heard of furs sold for a credit, he also says he has known of instances of agents buying furs, under peculiar circumstances, to a greater amount than they had funds, and that if an agent had not money enough, he might draw for a balance. If he might draw for a balance, he must of necessity have power to create a debt, and though the draft were made payable at sight, yet, practically, a credit is given, and time is allowed for payment, until the draft can be presented. If the agent, then, has power to create an indebtedness in behalf of his principal, and to make a draft for the amount thereof, I see no reason why he may not create the indebtedness, and omit to draw for it, especially when ho has no instructions to guide him in the particular circumstances.

The true question undoubtedly is, what is the custom of the trade under the particular circumstances of the present case? and that question does not appear to be distinctly answered by the testimony.

The faet that Mr. Brewster treated the furs purchased of the plaintiff as having been bought under the general arrangement between him and Raitte, and that he paid Raitte for them accordingly, can make no difference, so far as the plaintiff’s rights are concerned.

As between these parties, the defendant, by his agent, purchased the furs of the plaintiff, and received and disposed of them for his own benefit, without having fully ¡raid the purchase price agreed upon. la he liable for such balance under the circumstances of this case ? I think he is, and that a new trial ought not to be granted. The general mode of conducting the fur business, to which Judge Abbott refers, would seem to be, to send out agents whenever furs were to bo purchased, with means to pay for them, and with particular instructions. In such cases, the person dealing wiih the agent would have no knowledge of the principal, or of the agency, or the powers of the agent, except such as the agent himself might disclose. The usage of a trade conducted in that manner, would, it seems to me, for very obvious reasons, bo very different from that which would govern a transaction like that between these parties, where the negotiation is commenced by the parties in person, and one of them substitutes another to act in his stead, and solicits the confidence of the other party in such substitute, for the purpose of consummating a bargain.

Certified accordingly.


author: Wins, J.

text:
    Sibley v. Johnson.
    A certificate of the acknowledgment of the execution of a deed by a feme covert, under tlic act, Sess. L. 1840, p. 167, sec. 4, certifying that 11 separately and apart from her husband she acknowledged that she executed the same freely, and without fear or compulsion of nny one,” without stating that it was on a jprivate examination, is void.
    Case reserved from Calhoun Circuit Court. The only question was as to the validity of a certificate of acknowledgment of the execution of a deed by a feme covert, under the act of 1840, Sess. L. 1840, p. 167, sec. 4.
    The certificate was in thes words:
    “ State of Michigan, county of Calhoun, ss. — On this 17th day of December, in the year cf our Lord 1842, before me, a notary public in and for said county, personally came the above Kenyon Johnson and Mary Johnson, known to me to bo the persons w'ho executed the above instrument, .and acknowledged the same to be their free act and deed; and, having questioned the said Mary Johnson separate and apart from her husband, she acknowledged that she executed the same freely, and without fear or compulsion of any one.”
    The following is the 4th section of the act, under which the acknowledgment was taken:
    “ Sec. 4. That the rights of dow'er which any feme covert may have to any lands in the state of Michigan, shall not he passed or conveyed only by deed executed by such feme covert, and acknowledged by such feme covert, on a private examination separate and apart from her husband, that she executed the deed without fear or compulsion from any one; which acknowledgment shall be certified upon such deed, by the officer before whom it may be made.”
   By the court,

Wins, J.

It will be noticed that the statute is singularly worded, and taking it literally, it would seem that by doing all that the section requires to be done, and doing those things “ only,” the right of dower of a feme covert would not be passed, but a reasonable construction must.be part on the aot, .and such as would enable the wife to pass her dower by the performance of these acts, and not otherwise.

The objection made to the certificate is, that it does not show that Mrs. Johnson, “ on a private examination,” acknowledged, <fcc.

It was urged by the counsel for the defendant, in his argument in this court, that the certificate of acknowledgment must show either in express terms, or by implication, a compliance with every substantial requisite of the statute. And the counsel for the plaintiff, not deeming it necessary for his purposes to controvert this position, insisted that the terms, “ separate and apart from her husband,'” and “ on a private examination,” mean the same thing, and that the requirements of tho statute are met by tbe use of either term or phrase, without the other.

Similar questions have often arisen in the circuit courts of the late territory and of the present state, but I am not aware that this court has ever decided this or any similar question.

On looking into the decisions of sister states, I find they do not harmonize as to the matters necessary to be set forth in a certificate of acknowledgment of ¡a feme covert: in other words, they do not agree in their views as to the essential elements of an acknowledgment.

In Indiana, their supreme court hold it to be the duty of the officer taking the acknowledgment of a feme covert, to examine her, separate .and apart from her husband; but that their statute does not require, as they rmderstand it, that the certificate should show anything more on the subject than the declaration or acknowledgment of the wife, that she had voluntarily ex-ecuted the deed. They hold that it will be presumed, the contrary not appearing-, that the officer did his duty as to the separate examination; that it is the acknowledgment only', and not the circumstances under which it is made, that is required to be certified. Stevens v. Doe, 6 Blackf. 475.

It would seem, from Gregory v. Ford, 5 B. Monroe’s R. 471, that the supreme court of Kentucky have held the same doctrine.

The supreme court of Maryland decided, in the case of Flanagan and Wife’s Lessee v. Young, 2 Har. and McHen. 38, that a certificate stating that a husband and wife acknowledged the land and premises in the deed mentioned, to be the right, title and estate of the grantee named in the deed, according to the true intent and meaning of the same deed, and the act of assembly in that case made and provided,. •was sufficient, and in compliance with the provisions of a statute requiring a private examination.

The same doctrine was held by the supreme court of Ohio, in a decision delivered by Wright, justice, in the case of Newcomb’s Lessees v. Smith, Wright’s R. 209.

In Pennsylvania, their courts have held with great uniformity', as to the acknowledgment of deeds by married women,' that the requirements of their act of assembly, by which the mode of conveyance by femes covert is prescribed, must appear to have been substantially complied with, on the face of the certificate made 'by the magistrate by whom the acknowledgment is taken. Watson v. Bailey, 1 Binney 470; 5 id. 296; 6 id. 435; 4 Serg. and Raw. 272: 6 id. 49, 143; 9 id. 263; 14 id. 84. So in New Jersey, 4 Halsted 225.

In Maryland it has been decided that the acknowledgments of deeds of femes covert are defective unless the exact form mentioned in the acts of assembly on the subject is complied with. 1 Har. and John. 580, 751, 293; 2 id. 62. But as I have not access to these reports, I cannot ascertain whether the form referred to, moans a form given by statute or otherwise.

In -Ohio, their statute requires that the wife shall be examined, separate and apart from her husband, and that upon such examination she shall declare that she voluntarily, .and of her-own free will and accord, without any fear or coercion of her husband, did and now doth acknowledge the signing and sealing thereof.

In the case of Brown v. Farren, 3 Ohio R. 152, the court decided, upon a certificate of acknowledgment in which the word “ voluntary ” was included, but all the words following after in the act were omitted, that the word voluntary embraced all that was intended by the other •expressions omitted. The court held further, that the certificate must contain the substance of everything required by the law; that no substantial part of the provision of the statute could be dispensed with; and that it must appear expressly, or by irresistible inference from the language of the certificate, that the wife was acquainted with the nature of the deed; that she was examined apart from her husband; that she acknowledged the deed, and admitted it was her voluntary act, in such terms as to exclude the inference of fear or coercion. The court held the law was, as to the form of the certificate, directory, though, as to its substance, it is imperative; the one might be varied, the other must be adhered to. The court, however, say they place their decision principally upon considerations arising from the policy and practice of the state. The same court adhere to the same principles in 6 Ohio 142, and 13 id. 118.

Iu the case of Barton v. Morris, 15 Ohio R. 423, the court appear to have changed their ground, and very much relaxed this rule; and in Chesnut v. Shane’s lessees, 16 Ohio R. 599, the court entirely change the settled rule of decision in Ohio and adopt that of the supreme court of Indiana, as stated iu (5 Blackford, cited above, and say, the legislature contemplated relying upon the official oath of the officer for his faithful performance of the portion of the statute which is directory to him. In this case, Judge Reed delivers a dissenting opinion, maintaining the doctrine of their earlier decisions. It was admitted by the majority of the court, that it must appear by the certificate that the wife was apart from her husband, that he examined her, and that she acknowledged to him, &c., and he asks, why not apply the rule of presumption to every act of the officer, and permit them all to rest in presumption, and not require any to be certified ? If we limit the requirements of the certificate to embrace merely the acts of the wife, all that it need contain would be that the wife acknowledged that she freely executed the deed. He insists that the term acknowledgment, in the statute, means, that the wife makes such admission under all the attendant facts and circumstances which the statute requires to make it valid and binding upon the woman, and this must appear in the certificate.

At the common law, the wife has no separate existence, she can do no legal act without the consent of her husband. With her person the husband acquires the use and control of all her property — her legal rights are merged in those of her husband. She derives her power to convey her right of dower alone from the statute, and her act has no force independent of that given to it by the statute, which is an innovation upon the common law, and the authority given is in derogation of it; and if the act is not done pursuant to the statute, it cannot prevail; not by the common law, for that does not permit it: not by the statute, because its requisitions have not been complied with.

An examination of the previous legislation of our state upon this subject, will show us, the alterations made by the act in question, and assist us in giving to it a correct construction. By the Revised Statutes of 1838, p. 263, the wife was required to acknowledge before a proper officer, and apart from her husband, that she “ executed such deed without any fear or compu’sion of her husband.” The act of 1840 provides, in addition to these requisites, that her examination shall be private, and that the wife shall acknowledge that she executed the deed “ without fear or compulsion from any one.”

It is a well settled principle, that if an affirmative statute which is introductive of a new law, direct a thing to be done in a certain manner, that thing- shall not, even though there are no negative words, be done in any other manner. 6 Bac. Ab. 377; 6 Mass. 307. In this statute there are negative words: the acknowledgment of the wife can only he made in a certain manner.

By the act of 1838, it is apparent, it was the design of the legislature to exclude the husband, and him only,-from the examination. By the act of 1840, the legislature intended further guards and protections to the rights of the wife than was contained in the former act: they intended that the wife should be free from the control, not only of the husband, but of all others, in doing what she ivas authorized to perform. It may be admitted, that the terms “ on a private examination,” might, perhaps, be held to include the idea of separation from, not only the husband, but all others: but the terms “ separate and apart from her husband,” do not embrace this full idea. Then, are the terms “ on a private examination,” because immediately followed by tbe words, separate and apart from her husband, to be held to mean privacy only as to tbe husband % Does the latter sentence qualify the former, and limit its application only to the husband ? If so, though the husband be absent, bis agent, or some interested person, may be present) and exercise a controlling influence over tbe wife, in such manner as is contemplated by the act, and which it seeks to prevent. The words of the former act effectually excluded the husband: why were the words, on a private examination,” added, if not to express something more than was meant by the former law ? As, by the former law, the wife was to acknowledge that she executed the deed without any fear or compulsion of her husband, it was made a pre-requisite to such acknowledgment that she should be placed beyond the influence of his presence, by being separate and apart from him. When the legislature wish to provide for a more certain assurance of the imcfontr'olled action o'f the wife, and required that she should acknowledge, and that it should be certified that she executed the deed without fear or compulsion from any one, they made a corresponding alteration in the dnties of the officer, and required that her examination should be private; thus excluding any and every one but the officer.- And though this addition of the term private examination, may obviate the necessity or propriety of retaining the former provision, requiring separation from! the husband, yet the introduction of the new term, on a private examination, and disconnecting it by a comma from the term, separate and apart from her husband, in the old law, shows that they are not ^understood!;©- mean the same thing, but the former was intended’to be more comprehensive than the latter,, and to exclude not only the husband, hut any and all others.

Then assuming; as we do, that the certificate should show that all the requirements of the statute were complied with; that the precise words of the statute need not be used, hut that any equivalent words will answer, I find in this1 certificate no words expressive of the fact that the examination of the wife was- private, except as to her husband. The new requirement of the law of 1840 seems to have been 'lost sight of or' disregarded,.’and therefore this deed, so far as it respects the wife, is void.

Let it be so' certified to the' circuit court for the county of Calhoun.

Certified accordingly.


author: Gbeen, J.

text:
    Goodrich v. Commissioners of Highways of the Township of Lima.
    Where commissioners of highways laid out and established a road, and an appeal was taken from their decision to the township board, which affirmed" what tho commissioners had done, a certiorari sued out for the purpose of reviewing tho decision of tho [township board, directed to the commissioners instead of tho township_board, was dismissed for irregularity.

      Motion to dismiss certiorari. Iu September, 1847, the commissioners of highways of the township of Lima, in Washtenaw county, laid out and established a highway across the land of the plaintiff, who subsequently appealed from their decision to the township board In January, 1848, the township board, afterhearing the proofs and allegations of the parties on the appeal, made their decision, confirming what' had been done by the commissioners- To- review this last decision a certiorari was taken out, directed to the commissioners by name; and their successors in office, and requiring them to return what plaints were “ levied before them, and the town hoard of said town, in the matter of difference between Cliauncey S. Goodrich, appellant, and the commissioners of highways of the town of Lima, in said county, as to the actings and doings of said commissioners in laying out and establishing a highway in said town, across the lands of said Goodrich-”
    -- — ■ for the motion'-

      Hawkins, contra.
   By the court,

Gbeen, J.

The only error complained of by ilie plaintiff in his affidavit, is, that the decision- of the township board,- affirming the acts of the commissioners, was- illegal and incorrect, and ought to' be reversed.

In the case of the Commonwealth v. Winthrop, 10 Mass. 177, a tax had been assessed for the purpose of repairing a highway, by the court of common pleas for the county of Somerset. Subsequently the court of sessions for that county was- revived, with- jurisdiction- over assessments for such purposes, and the- records of the court of common- pleas relating to such assessments, were transferred, with such jurisdiction, to the revived court of sessions-

Tho writ of certiorari- was issued to the chief justice of the circuit court of common pleas comprehending Somerset county, commanding him to certify the proceedings of the court relative to- the assessment of said tax. A return was made to- the-writ by the clerk of the court of common pleas, who was also-clerk of the court of sessions, for the county of Somerset, certifying the proceedings according to the command of the writ; but the court quashed the certiorari, as having issued improvideatly, and ordered a new writ to issue to the first justice of the court of sessions for the county of Somerset.-

So in tlie case of Bogart v. The Mayor &c. of New York, 7 Cowen 158, a certiorari was issued to the defendants, to remove the proceedings of the corporation of the city of New York, in widening a street, and the court held that the writ should have been directed to the judges of the supreme court, sitting as commissioners: most of the proceedings sought to he questioned, being before them as commissioners) though it was said that some of them remained with the defendants; and the writ was quashed on the ground that it was both misdirected, and not allowed on cause properly shown.

In the case now before this court, the respondents are only required to certify in relation to the matter in difference between Goodrich, appellant, and the commissioners. This confines them to what appeared before the township board, in the proceedings upon the appeal, for it was only there that the plaintiff appeared in the character of appellant, or where he and the commissioners assumed the attitude of adverse parties. Considering, also, that the only error complained of, is the decision of the township board upon the appeal, it is very apparent that all the plaintiff has sought to bring up by this writ, is the proceedings before the board upon his appeal; and it also seems very clear, that, for this purpose, the writ should not have been issued to the commissioners of highways, but that, if the plaintiff has any remedy by certiorari, to correct any error of the township board in the premises, his writ must be directed to the officers before whom the proceedings sought to be questioned remain.

The writ of certiorari in this caso must be dismissed, with costs to the respondents.

Certiorari dismissed.


author: Miles, J.

text:
    Davidson v. Gunsolly.
    In trover, by one having a lien on goods against the general owner, or against orto who has converted the goods by his direction, the plaintiff can recover only according to his special interest; but against a stranger the full value of .the goods may be recovered, although exceeding the lien, and the plaintiff will be a trustee for the general owner as to the balance. If the goods converted are of less velue than the amount of fije lien, no more can be recovered than their value.
    The same rule prevails in replevin, under R. S. e.124, sec. 29, p. 549, where either of the parties, at the commencement of the suit, has only a lion upon, or special interest in the goods replevied, and is not the general owner.
    Case reserved from Wayne Circuit Court,

      jDavidson, in person.

      Van Dylce and Emmons, for defendant.
   By the court,

Miles, J.

This was an action of .replevin, for the taking and detention of a carding machine, commenced in the circuit court of Wayne county, where the cause was once tried, when the jury failing to agree upon a verdict, the subject matter of the action was submitted to an arbitrator.

For a statement of the subject matter of the suit, the parties to the submission referred to the pleadings; a copy of which were annexed to and formed a part of the submission.

The declaration was for taking and detaining one of Daggett’s patent carding machines. The defendant plead: 1, not guilty; 2, property in one Henry B. Holbrook: 3, property in Holbrook and the defendant: 4, property in the defendant: 5, property in the defendant and the plaintiff. The plaintiff, it appears, claimed title as a purchaser, under a levy and sale upon execution from the circuit court against Holbrook.

By the submission it was provided, that the award of the arbitrator being made and reported within one year to the circuit court, the judgment thereon should be final; and by a stipulation endorsed on the submission, it was further agreed that the award should be entered as 'the judgment of the court in the case then pending; either party to Lave the same right to correct such judgment as if the cause was duly tried in said court.

There is a further stipulation between the parties, requiring the referee to return, with his award, all the evidence, exhibits, and matters in testimony before him, to the circuit court.

It is manifest, from an inspection of the instrument in writing, executed and acknowledged by the parties, for that purpose, that the subject matter of the suit was submitted to arbitration agreeably to the ' provisions of the statute. R. S. 565.

After an award was made, a motion was submitted to the circuit court, by the plaintiff, to set it aside; and a counter motion having been made by the -defendant, for judgment upon it, the questions of 'Jaw arising- upon these motions have been reserved by the circuit court for the opinion of this court.

There are several special provisions in the submission, which require the arbitrator to state: 1, The property of the defendant in the machine according to law: 2, Its actual value at the time it was replevied, if he finds the general property in the defendant: 3, The actual damages sustained by the defendant, if he finds that the defendant had only a lien on, or a special property in the machine. 4, If he shall find that the right of property was in the plaintiff, or that he was entitled to the possession, then that he shall assess adequate damages for the detention.

The arbitrator found that the plaintiff replevied the machine and appurtenances on the 12th day of February, 1845; that it was then worth $450; that the defendant at that time did not own the general-property in the machine; that he had in it a special property, and was entitled to the possession-thereof for four years succeeding the 1st day of April, 1843, by virtue of a lease from Henry K Holbrook to him; that the fi.fa. was levied and the sale made subject to said lease; that the plaintiff had no right to take away the machine from the defendant at the time he replevied the same, but that the defendant was lawfully entitled to the possession of the same up to and until the 1st day of April, 1847. The award is dated in December, 1847.

The arbitrator then proceeds, in his award, to assess the damages of the defendant, and, as required by the submission, to state the principle by which he arrives at the amount of the same. He says: “ I fur-tiler determine, &c., that the actual damages, consisting- of the value of the rent and use of the machine, from the time it was so replevied from said Gunsolly by said Davidson, until the expiration of the said unexpired term, to wit, until the first day of April, 1847, independent of the question of loss of profits and injury to business, by its being- so taken away, was at least two hundred and twenty five dollars. The basis upon which I so make' up and find that amount being as follows, viz: that said Gunsolly could not have rented such a machine for the same space of time for a less sum; and that any one desiring- the use-of such a machine for such a time; would be willing- to pay that price therefor; that that sum would be deemed a fair price; and that twenty five dollars would be a low and reasonable sum for taking- down and putting- up the same, receiving and returning it.”

I have thus stated particularly this part of the submission, and of the award, for the purpose of noticing one of the objections made to it by tbo plaintiff, to wit, that the arbitrator has not thereby determined in whom the general property in the machine was, at the time it was replevied. If this objection is well founded, it is for the reason that the circuit court cannot know from the award what judgment to give.

In trover, by one having- a lien on goods against the general owner, or one who has converted the goods by his direction, the plaintiff can recover only according, to his special interest: but, in a like action against a stranger, the full value of the goods may he recovered, .although exceeding- the lien, and the plaintiff will then be a trustee for the general owner as to the balance — if tbe goods converted are of less value than the amount of the lien, no more can he recovered than their value. 7 Cowen 681, n. a; see, also, 5 Binney 457-60, showing this principle to be of very ancient origin.

The twenty-ninth section of the act relating to replevin, provides that when either of the parties to the action at the time of the commencement of the suit, shall have a lien upon or a special property in the goods, and is not the general owner, that fact may be proved on the 'trial, and the jury are required to find according to such fact by their verdict, and the court shall thereupon render such judgment as shall be just between the parties. R. S. 549.

This section was first enacted in 1841, Sess. L. 1841, p. 54, and is not contained in the statute of New York, from whence ours is derived.

It is said to have been intended to introduce in actions of replevin, the rules governing in actions of trover just stated. Tiffany’s Treatise, p, 53.

If those1 rules are to apply,-and I see no reason why they should not, then it seems to me the defendant might, on this award, be entitled to judgment for the value of the machine, or for a return, with damages for the detention.

But should not the plaintiff’s property in the machine he ascertained to enable the court to say whether the defendant should have judgment for the damages alone, or for the value and damages, or a return and damages. If the plaintiff is the general owner by having' acquired title under the sale on the fi.fa. against Holbrook, then the defendant is only entitled to the value of his special property; whereas, if the plaintiff is without right, the defendant is entitled to judgment for the value, or for a return, at his election. Whether the plaintiff acquired a title, must depend upon the interest of Holbrook, as he could by the purchase acquire no other or greater interest than Holbrook had. Hence, it is necessary to establish Holbrook’s title, to show the property of the plaintiff.

The title of the pJaintiff was put in issue by the pleadings, but is not determined by the award. That seems to be necessary, for the reasons just stated.

I have been somewhat embarrassed in’the examination of this case, by the special provisions in. the submission, and by the consideration that they might be intended to control the effect of the general submission of the subject matter, but, upon reflection, have come to the conclusion that, although they point out the duty of .the arbitrator in certain particulars, they do not specify his whole duty, and that the submission would be equally well without them. I refer to the directions as to the assessment of damages in the event of finding a property in the defendant, or in the plaintiff, either general or special. It is unnecessary to inquire whether the suit was or was not discontinued by the submission: enough appears to show the intention of the parties, that the case should be tried before the arbitrator upon the rule? of law applicable to the action of replevin, which was pending at the time of the submission.

Having determined that the award is defective in the particular alluded to, the- next inquiry is, how is it affected by such imperfection 1 The powers of the court designated in the submission, to control the award, are prescribed in the ninth section of the act concerning arbitrations — 'it may either vacate, or modify and correct. One ground of an application to vacate, is, that the arbitrator so imperfectly executed his powers that a mutual, final and definite award on the subject matter submitted, was not made. If we are correct in the view we have taken of this matter, here was an imperfect execution of the powers of this arbitrator. The whole subject matter of the suit was submitted to him: he was sufficiently instructed, so far as the parties eould do it by special directions and stipulation^ and with every legal intendment in favor of the award, and in the’ exercise of all that liberality which we are bound to exert in its construction, it seems still radically defective.

There are other objections to the award made in the case, but as the one decided disposes of it, and as its many peculiarities have rendered the investigation of the questions involved somewhat difficult and embarrassing, I do not feel called upon to express an opinion on the other points, though all of them have been examined — trusting that the parties may never be under the necessity of again bringing the case into this court in its present shape.

Certified accordingly\