text:
    HANON v BARBER
    Docket No. 44983.
    Submitted March 10, 1980, at Detroit.
    Decided September 3, 1980.
    Lowell R. Hanon, Sr., brought an action against Ross C. Barber, Jr., for a money judgment on'two promissory notes. Upon the parties’ appearance for trial, plaintiff moved for summary judgment, claiming defendant’s answer failed to state a valid defense to the claim asserted. Defendant moved for leave to amend his answer, which motion was denied, and plaintiff was granted summary judgment, Oakland Circuit Court, James S. Thorburn, J. Defendant appeals, alleging the trial court erred in granting plaintiff’s motion for summary judgment and that the trial court abused its discretion in denying his motion to amend his answer. Held:

    1. The trial court erred in granting plaintiff’s motion for summary judgment, as the possible defenses offered by defendant should have precluded such grant in that, were defendant to prove one or more of his claims at trial, plaintiff would be denied recovery on the debt. Defendant’s pleading gave plaintiff notice such as to permit him to take a responsive position, and, further, defendant’s denial of material facts constituted a valid defense.
    2. The trial court abused its discretion in denying defendant’s motion to amend his answer, since the motion was timely, and no showing that such amendment would result in injustice or would unduly prejudice plaintiff, that allowing the amendment would have been futile, or in bad faith, or . was the result of undue delay or dilatory motive on defendant’s part was made. In addition, the trial court failed to support its denial with specific findings as to why justice would not be served by the amendment, as required by court rule, constituting reversible error.

      References for Points in Headnotes
    [1, 4] 61 Am Jur 2d, Pleading § 232.
    [2] 61 Am Jur 2d, Pleading § 152 et seq.

    [3] 61 Am Jur 2d, Pleading § 169 et seq.

    [5, 6] 61 Am Jur 2d, Pleading §§ 309-311.
    [7] 61 Am Jur 2d, Pleading § 205.

      Summary judgment in favor of plaintiff set aside.
    1. Motions and Orders — Summary Judgment — Failure to State a Valid Defense — Court Rules.
    A motion for summary judgment based on the failure to state a valid defense tests the legal sufficiency of the pleaded defense; the motion is tested by reference to the pleadings alone, with all well-pleaded allegations accepted as true, and by determining whether a defendant’s defenses are so clearly untenable as a matter of law that no factual development could possibly deny plaintiff’s right to recovery (GCR 1963, 117.2[2]).
    2. Pleading — Affirmative Defenses — Purpose — Sufficiency — Court Rules.
    The intent of the general court rule of pleading affirmative defenses is to provide for fact pleading sufficient to give a plaintiff notice of the affirmative defenses alleged to permit him to take a responsive position, and no pleading is insufficient so far as facts are concerned which serves this function (GCR 1963, 111.7).
    3. Pleading — Denial of Material Facts — Valid Defense. .
    The denial of material facts constitutes the pleading of a valid defense.
    4. Motions and Orders — Summary Judgment — Denial of Allegations.
    A motion for summary judgment for failure to state a valid defense can be defeated by denying an allegation.
    5. Trial — Motions and Orders — Amendment of Pleadings — Standard of Review — Court Rules.
    A trial court, in denying a motion by a party for leave to amend his pleadings, must make specific findings that justice would not be served by granting the motion, and the test on appeal is whether the trial court abused its discretion in denying the motion (GCR 1963, 117.3, 118.1).
    6. Trial — Motions and Orders — Amendment of Pleadings — Summary Judgment — Standard of Review.
    A trial court should base its finding in ruling on a motion by a party for leave to amend its pleadings to avoid summary judgment on evidence contained in the affidavits, and the standard of review is whether the trial court abused its discretion.
    7. Motions and Orders — Affirmative Defenses — More Definite Statement — Court Rules.
    A plaintiff, in finding a defendant’s affirmative defenses lacking, should make a timely motion for a more definite statement under the appropriate court rule (GCR 1963, 115.1).

      Nine & Maister (by Bruce A. Rodwan), for plaintiff.

      Myron F. Poe, for defendant.
    Before: Bronson, P.J., and V. J. Brennan and T. M. Burns, JJ.
   Per Curiam.

This is an appeal from the circuit court’s denial of defendant’s motion to amend his pleadings and the grant of plaintiff’s motion for summary judgment based upon GCR 1963, 117.2(2).

On May 25, 1978, plaintiff, Lowell R. Hanon, Sr. filed a complaint against Ross C. Barber, Jr., seeking a money judgment on two promissory notes dated November 5, 1971, and March 19, 1972, between Barber as payor and Hanon as payee.

On June 13, 1978, defendant filed his answer and affirmative defenses of compromise and release, satisfaction, discharge, duress, estoppel, and assignment of the claim. Plaintiff filed a response on June 16, 1978, denying defendant’s affirmative defenses.

Following two adjournments, the parties appeared for trial before Judge Thorburn on December 29, 1978. Plaintiff thereupon made a motion for summary judgment, claiming that defendant’s answer failed to state a valid defense to the claim asserted against him. Defendant immediately moved for leave to amend his answer. The trial judge denied defendant’s motion to amend and granted plaintiffs motion for summary judgment. Judgment in the plaintiffs favor was entered in the amount of $20,286.94. Defendant subsequently filed a motion to rehear the motion for summary judgment and a motion to amend and requested that defendant be granted a new trial. On April 18, 1979, Judge Thorburn issued an order denying the defendant’s motion. The defendant now appeals from the trial court’s order granting summary judgment and denying defendant’s motion to amend the pleadings.

On appeal, defendant raises two issues. First, defendant challenges the trial judge’s grant of summary judgment for failure to state a valid defense.

A motion for summary judgment based on the failure to state a valid defense tests the legal sufficiency of the pleaded defense. Such motion is tested by reference to the pleadings alone, Durant v Stahlin, 375 Mich 628, 644; 135 NW2d 392 (1965), Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974), with all well-pleaded allegations accepted as true, Minor Dietiker v Mary Jane Stores of Michigan, Inc, 2 Mich App 585, 588; 141 NW2d 342 (1966). The proper test for such a motion is whether defendant’s defenses are so clearly untenable as a matter of law that no factual development could possibly deny plaintiffs right to recovery. Crowther v Ross Chemical & Mfg Co, 42 Mich App 426, 431; 202 NW2d 577 (1972), Bob v Holmes, 78 Mich App 205, 211; 259 NW2d 427 (1977), Michigan National Bank of Detroit v Dunbar, 91 Mich App 385, 387; 283 NW2d 747 (1979).

On review of the record, we believe that the possible defenses offered by defendant should have precluded the granting of summary judgment pursuant to subrule 117.2(2). Sufficient basis for denial of the motion was made in defendant’s answer by his allegations regarding compromise, release, payment, discharge, assignment, coercion, and duress. Were defendant to prove one or more of these claims at trial, plaintiff would be denied recovery on the debt. See Bashara, The Elusive Summary Judgment Rule, 1976 Det Col L Rev, 397, 409-410.

The trial court’s ruling appears to be grounded on the basis that, although defendant listed his affirmative defenses, they were defective, since he failed to state those facts upon which he relied.

The general rule of pleading affirmative defenses is governed by GCR 1963, 111.7. In essence, it is the intent of the rule to provide for fact pleading sufficient to give plaintiff notice of the affirmative defenses alleged. Abbey v Hudgens, 4 Mich App 621; 145 NW2d 363 (1966). In Olson v Dahlen, 3 Mich App 63, 71; 141 NW2d 702 (1966), this Court, quoting from 1 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), p 198, stated that:

"The primary function of a pleading is to give notice of the nature of the claim or defense sufficient to permit the opposite party to take a responsive position. No pleading is insufficient, so far as facts are concerned, which serves this function. ”

We find that plaintiff did have such notice.

Assuming, arguendo, however, that defendant’s affirmative defenses were deficient, we further note that defendant categorically denied owing plaintiff on the alleged notes. In August v Poznanski, 383 Mich 151, 155; 174 NW2d 807 (1970), the Supreme Court set aside a summary judgment not because of disputed facts, but because the denial of material facts constitutes the pleading of a valid defense. As Judge Bashara stated in The Elusive Summary Judgment Rule, supra, 410, "Summary judgment for failure to state a valid defense is a rare occurrence. One can generally defeat the motion by denying an allegation.”

While resolution of the foregoing is dispositive and renders discussion of defendant’s remaining allegation of error unnecessary, we believe it should, nevertheless, be addressed. Immediately following plaintiff’s motion for summary judgment, defendant asked the court for leave to amend his pleadings. Defense counsel argued that summary judgment was improper and requested the court to grant him one week in which to file an amended answer in order to cure the alleged deficiency of his pleadings.

On appeal, defendant argues that the trial court abused its discretion in not granting his motion to amend. GCR 1963, 117.3 provides in pertinent part:

"Each party shall be given opportunity to amend his pleadings as provided by Rule 118 unless the evidence then before the court shows amendment would not be justified.”

GCR 1963, 118.1, states that "[l]eave shall be freely given when justice so requires”. This requires the trial court to make a finding that justice would not be served by granting the motion to amend. Burg v B & B Enterprises, Inc, 2 Mich App 496; 140 NW2d 788 (1966).

The test on appeal is whether the trial court abused its discretion in denying the motion to amend. Fred Gibbs, Inc v Old Colony Ins Co, 30 Mich App 352; 186 NW2d 396 (1971). The trial court must make specific findings as to why it is denying the motion for leave to amend. Tri-Part Manufacturing Co v Michigan Consolidated Gas Co, 1 Mich App 684; 137 NW2d 739 (1965), Taylor Board of Education v Taylor Federation of Teachers, 66 Mich App 695; 239 NW2d 713 (1976), NAG Enterprises, Inc v All State Industries, Inc, 85 Mich App 194; 270 NW2d 738 (1978). Although an amendment to avoid summary judgment is subject to a slightly different test than the usual amendment under GCR 1963, 118.1, in that the trial court must make a finding from the evidence contained in the affidavits. Taylor Board of Education, supra, 698, in both situations the standard is one of abuse of discretion.

In Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973), the Supreme Court set forth the purpose of GCR 1963, 118.1 as defined by the Supreme Court’s analysis of FR Civ P 118:

"We have acknowledged the Federal source of Rule 118 and have been guided by the Federal precedents. LaBar v Cooper, 376 Mich 401, 405; 137 NW2d 136 (1965).
"Our rule, as the Federal rule, is 'designed to facilitate the amendment of pleadings except where prejudice to the opposing party would result’. United States v Hougham, 364 US 310, 316; 81 S Ct 13, 18; 5 L Ed 2d 8, 14 (1960). A motion to amend ordinarily should be granted, and denied only for particularized reasons:
" 'In the absence of any apparent or declared reason —such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc, — the leave sought should, as the rules require, be "freely given.” ’
"To safeguard and implement the policy favoring amendment, this Court has directed that upon denial of a motion to amend 'such exercise of discretion should be supported by specific findings as to reasons for the same’. LaBar v Cooper, supra, p 409. (Emphasis supplied.)”

In the instant case, plaintiff did not argue that defendant’s request to amend would result in injustice or would unduly prejudice plaintiff. In fact, defendant prepared and proceeded to trial only to be met with a motion for summary judgment. Faced by this unexpected turn of events, defendant then attempted to cure his answer and preserve his right to a full hearing. Under the circumstances, defendant’s motion was as timely as could be expected.

We note that this is not a case where a party is adding a party or parties which in effect results in the addition of a new cause of action, Central Advertising Co v City of Novi, 91 Mich App 303; 283 NW2d 730 (1979), or a party is attempting to introduce a new theory of liability which will prejudice an opposing party, Messer v Floyd Rice Ford, Inc, 91 Mich App 644; 284 NW2d 139 (1979), or amendment would have been futile, Biff’s Grills, Inc v State Highway Comm, 75 Mich App 154; 254 NW2d 824 (1977). Given the Supreme Court’s liberal amendment rules, GCR 1963, 118.1 and its directive that leave to amend should be "* * * freely given when justice requires”, Fyke, supra, 655, the fact that defendant’s motion to amend was made as soon as he was made aware of the alleged deficiency of his pleadings, and the Court’s reluctance to decide questions raising factual issues by way of summary judgment rather than a full hearing, the trial court abused its discretion in denying defendant’s motion to amend. There was no indication that allowing the amendment would have been futile, or of bad faith, or the result of undue delay or dilatory motive on defendant’s part.

We further note that the trial judge failed to support his motion denial with specific findings as to why justice would not be served by the amendment. Such a failure constitutes reversible error. Goldstein v Kern, 82 Mich App 723, 727; 267 NW2d 165 (1978), Burg, supra, 500, Fyke, supra, 658, and Leahy v Henry Ford Hospital, 84 Mich App 719, 722; 271 NW2d 34 (1978). No such findings were made in this case.

We rule that the trial court should have granted defendant leave to amend, and set aside the summary judgment in favor of the plaintiff entered herein.

Costs to be paid by plaintiff.

       GCR 1963, 117.2(2) provides in pertinent part:
      ".2 Grounds. The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds:
      "(2) the opposing party has failed to state a valid defense to the claim asserted against him, * *

       The case was first scheduled for trial on September 1, 1978, but was adjourned until October 31 because an illness in defense counsel’s family required him to be out of state. And on October 31, 1978, both counsel requested an adjournment until December 29, 1978.

       GCR 1963, 111.7 provides:
      ".7 Affirmative Defenses. A party shall in separate defenses set forth the facts constituting any affirmative defense, such as, contributory negligence, assumption of risk, payment, release, satisfaction, discharge, license, fraud, duress, estoppel, statute of frauds, statute of limitations, illegality, want or failure of consideration in whole or in part, that an instrument or transaction is void or voidable in point of law, or cannot be recovered upon by reason of statute, or by reason of nondelivery, and any defense which by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim set forth in the plaintiff’s complaint in whole or in part, and any ground of defense which, if not raised in the pleading, would be likely to take the adverse party by surprise. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.”

       We note that, although the trial court characterized defendant’s request as one which sought a continuance, it in fact was a motion for leave to amend in response to plaintiffs motion for summary judgment.

       We agree with defendant’s contention that, if plaintiff found defendant’s affirmative defenses lacking, he should have made a timely motion for a more definitive statement under GCR 1963, 115.1.


source: Caselaw Access Project

author: Sutherland, J.

license: Public Domain

text:
    George H. Gale, vs. The Village of Kalamazoo.
    Municipal Corporations act in a two-fold capacity, and exercise two kinds of power; one governmental and the other private. In one capacity it represents a part, and is an instrumentality of the sovereignty of the State, for the local government of the Tillage; in the other, it represents those proprietary Interests that appertain to it in aommon with other corporations. In the latter capacity the corporation owns property, manages it for profit, employs servants and makes contracts; in the other, it makes Jaws to promote the general welfare and exercises u governing power that is entirely distinct from and superior to those privileges which are incident to the ownership of property or corporate franchise.
    A provision in a Tillage charter authorizing the President and Trustees “to construct and regulate markets, the vending of poultry, meats, vegetables, fruit and fisl /’gives authority to act in a governmental and private capacity. Under such a charter, a Tillage may construct or lease a market, and regulate its use at will within the scope of its charter, as to police regulations, &c.
    The power “ to regulate markets, <£c,” extends further than to manage ita corporate property; it enables the Council to make ruleB obligatoiy upon persons not in the employ of the corporation, and who stand in no other than political relations to it.
    The end for which the power to construct markets is given, is the convenience to the public and more easy enforcement of sanitary and other police regulations.
    The governing powers of the Village are conferred in trust, and cannot he delegated, contracted away, nor suspended; and the exercise .of them cannot he restrained by contract.
    The Council cannot establish market regulations so firmly that the same or a subsequent Council could not repeal nor modify them.
    The Corporation is not liable for the exercise of its legislative power.

      Argued, submitted and decided at the November Term, 1869,

      of the Circuit Court for the County of Kalamazoo.

    Authorities cited by plaintiff’s Counsel: Const. U. S., Art. 1, Sec. 10; Cooley's Const. Lim. 126; 4 Wheat. 518; Cooley 127; 6 How. 318; 3 Wal. 52; 3 How. 133; 16 How. 369; 18 How. 331; 1 Black 436; 9 Johns. 507; 7 N. H. 35; 2 Gray 1; 32 Barb. 364; Cooley 198; Angel & Ames on Corp. 332; 25 Ill. 148; 31 Pa. St. 175, 185; 32 N. Y. 270; 25 Mo. 40; 7 Iowa 110; 3 Hill 531; 13 Iowa 210; 12 Mich. 138; 43 N. H. 343.
    Authorities cited by defendant’s Counsel: 2 Cushing 337; 5 Peters 349; 98 Mass. 59; 5 Cowen 538; 7 Cowen 604; 32 N. Y. 271; 27 N. Y 621; 10 Howard 534; 43 Ill. 337; 45 Ill. 90; 46 Ill. 490.
    Stewart & Edwards for Pltff., Severens & Burrows, and B. B. Hughes, of Counsel.
    J. W. Breese, for Beft., Bwigiit May, G. V. N. Lothrop and C. I. Walker, of Counsel.
   By the Court,

Sutherland, J.

The questions in this case are presented by way of a demurrer to the declaration.

The plaintiffhas erected a large building in the village of Kalamazoo on his own grounds, pursuant to an alleged agreement with the corporate authorities of that Village. That agreement was substantially, that the plaintiff should erect and thereafter keep in repair, a building to be denominated the “ Kalamazoo Public Market,” to be used for Vending meat, fish, poultry, game, fruit, vegetables, eggs, and butter; that it should be arranged with convenient stalls, fixtures, and approaches; that it should cost not less than $8,000, including the ground, and be completed by January 1,1868. He was to place it under the control of the President and Trustees of the village for ten years. The stalls were to be rented to such persons, and for such time and price, as should be agreed on by the plaintiff and the village authorities, and the rent was to be paid to the plaintiff. — The President and Trustees are alleged to have agreed on their part, among other things, that during the period covered by the contract, there should be no other public market, provided this market should be large enough; that the sales of all the said articles within the corporate limits of the village, should, during market hours, be confined to said market house, and the ground specified in section 11 of the village by-laws relating to markets.

The declaration alleges, among other breaches of the agreement, on the part of the defendant, that other market houses have been allowed in the village; that the defendant refuses to confine such sales to the said market limits; that it refuses to enforce the ordinance regulating the market house, and the vending of the articles aforesaid, and has repealed sueh ordinance.

The important question raised by the demurrer is,whether the alleged agreement is valid; whether, conceding that the instrument was prepared and executed in such form that it purports to be the corporate agreement of the President and Trustees, it was within their power so as to render the defendant respon* sible as a party for its faithful execution.

The defendant, being a municipal corporation, acts in a two fold capacity; in other words, exercises two kinds of powers, one governmental and public, and the other private. In one capacity it represents a part, and is an instrumentality of the sovereignty of the State, for the local government of the village. In the other capacity it represents those private and proprietary interests that appertain td it in common with other corporations. In this capacity the corporation owns property, manages it for profit, employs servants, makes contracts. In the other, or public capacity, it makes laws to promote the general welfare, exercises a governing power that is entirely distinct from and superior to those privileges which are incident to the ownership of property or corporate franchise.

The charter of the village authorizes the President and! Trustees — “ to construct and regulate markets, the vending of poultry, meats, vegetables, fruit, and fish.” In this provision there is authority to act in both capacities.

It has authority to construct a market, and both sides concede that there is included a right to lease a building for a market. In constructing or leasing a market building, and in the subsequent renting of it, and collecting rents, and in doing any and all such other acts as owners or lessees of buildings usually do to increase the rental value of their tenements, the defendant would act in its private character. In these respects it would have the same privileges as other corporations. It could make any use of the building constructed or leased, and regulate that use according to its will, within the scope of its charter, but subject, like natural persons, and other and exclusively trading corporations, to such police regulations, or taxation, as, under the authority of the charter, the corporation, in its governing character, might prescribe.

The ■power “ to regulate markets and the vending of poultry, meats,’’ &c., extends farther than to manage its corporate property ; it enables the council to make rules obligatory on persons who are not in the employ of the coiqioration and who stand in no other than political relations to it. That power is conferred on it for exercise in its municipal character for purposes of Government. If, under it, restraints are imposed in resjoect to sales at other places than the public market, and their effect is to increase the emoluments ofthe corporation, that advantage is incidental and secondary. Regulations may, also, be made which will operate to the prejudice of the revenue by permitting sales at other places for the general convenience. The end for which the power to construct markets is given is not that the corporation may realize a pecuniary profit, but convenience to the public and more easy enforcement of sanitary and' other police regulations. The power to put in force such regulations is legislative, in the same sense and for the same general -purpose as the authority to order new streets to be opened, or old ones to be improved, to abate nuisances, suppress gambling, and prevent rapid driving. These governing powers are conferred in trust to be exercised for the benefit of the whole village, as occasion may require. They cannot be delegated by the officers or board, in whom they are vested, nor contracted away, nor suspended. The exercise of them cannot be embarrassed or restrained by contract.

The agreement in question assumes to determine for ten years the scope of this legislative authority in respect to markets and the vending of the articles mentioned in the charter, and to direct how particularly it shall be exercised. It is believed that this function of the village council is beyond the reach of the contract making power of the corporation, that it is as clearly above all restraint by contract as the judicial power, if any, conferred on village magistrates.

After a public market has been established, should the council deem that the public convenience would be thereby promoted, it could legally restrain sales of the specified articles at all other places. The council could not, however, establish any such regulations so firmly that the same' or a subsequent council could not repeal nor modify them. An agreement by the corporation for that purpose, would be an agreement for an illegal purpose, and an impossibility.

The corporation is not liable for any exercise of its legislative power, whether negative in refusing to pass particular bylaws or ordinances; or affirmative, in putting in force those that are obnoxious.

If it was possible to sustain a contract under any. circumstances, imposing obligations to regulate the vending of articles in a particular manner, and to hold such regulations irrepealable, this agreement is liable to the fatal objection, that it assumes to bind the corporation to establish and maintain a monopoly for the benefit of the plaintiff.

The contract does not, in substance, provide for constructing a market by or for the defendant; when constructed by the plaintiff pursuant to that arrangement it is neither owned by, nor leased to, the defendant. It provides for constructing a market for the plaintiff. The defendant was not to derive any profit whatever from it. The stalls were to be rented with his express assent, and the rent collected for the plaintiff. The whole connection of the defendant with the market, all its occupation, and the exertion of its authority, stipulated for, were without any promise of pecuniary return, and solely to increase the demand for leases of stalls, and thereby to enhance the plaintiff’s profits.

The corporation is not authorized to establish such a monopoly ; nor can its governmental powers be bound to maintain it.

The demurrer is sustained.


author: Campbell, C. J.

text:
    [The head notea to the following cases, though prepared with some care, may fail to ex. press all the leading questions'determined in such cases, and may, in some instances, fail to state the law precisely as declared by the Court; It is believed, however, that in the main they are correct; but if, in any instance, the law is not correctly stated, the publisher of the Nisi JPrius alone must be held responsible, as we liave had no time to submit the notes, for revision, to the Judges who delivered the opinions. In future numbers more care will be taken in reporting-the opinions of the Supreme Court.]
    Jacob L. Brown vs. Lawrence Kelley.
    An affidavit for a warrant to arrest a person for an alleged breach of trust is defective unlesB it show the facta and circumstances attending such alleged breach of trust, and auch defect is not waived by giving bond and adjourning the cause.
    When affidavit for appeal shows motion to dismiss made in time, and the return mentions the motion but does not state when it was made, it will be presumed to have been made seasonably.
    Error to Kalamazoo Circuit.
   Opinion'by

Campbell, C. J.

Kelley had Brown arrested on a warrant issued by a Justice of the Peace for a debt. The affidavit on which the warrant was obtained was as follows:

State of Michigan, Kalamazoo County, ss :
“Lawrence Kelley, of said county, being duly sworn,'deposes and says that he has a just cause of action, and a demand not exceeding $300, arising out of a contract, against Jacob L. Brown, against whom he applies for process by warrant, for a breach of trust in converting and disposing of the money of this deponent to the amount of $200; aud this deponent further says that heretofore, to wit: on the 17th day of September, 1866, he placed in the hands of Jacob L. Brown the sum of $300 for safe keeping, to be kept by the said Jacob L. Brown until such time as this deponent should call for it; that the said Brown, instead of returning to this deponent the said sum of money, so intrusted to him,' converted $200 of the same to his own use, and now wholly refuses to return the same to this deponent.”

Sworn to.

Brown, on being arrested on the warrant, was brought before the Justice, and gave bond for his appearance at a future day to which the case was adjourned. On’that day he appeared and moved to set aside the proceedings on the ground that the affidavit was fatally defective. The Justice denied the motion. Pleadings were then put in, the parties went to trial, and the plaintiff bad judgment. This judgment the Circuit Court affirmed.

The affidavit is defective in not stating facts establishing such conversion and its wrongfulness instead of conclusions of law, and gives no jurisdiction to issue the warrant.

A bond given on adjournment before pleading by a party arrested on a warrant, as required by § 3740, G. L., is not a waiver of such a defect, and does not prevent a motion to dis-, miss for want of jurisdiction.

When the special affidavit for an appeal shows a motion to dismiss to have been made in time, and the return mentions the motion and does not state when it was made, it will be presumed to. have been made seasonably.


author: Cooley, J.

text:
    Hannahs, et al, vs. Sheldon.
    H, issued a certificate of deposit to F. F. transferí ed the same to S. S. brought suit against H,. on the certificate. At the trial, H. offered to prove that F. was insane at the time of the ti ansfer to S. The proposed evidence was excluded. JSeld, that such exclusion was
    Error to Calhoun Circuit.
   Opinion by

Cooley, J.

Sheldon sued the Hannahs upon a certificate oi deposit issued by them to Mrs. J. Failing, and by which they promised to pay to her order $804 75 in current banknotes. The certificate bore date February 2d, 1859, and Sheldon claimed title thereto as assignee The transfer of the same by Mrs. Failing was proved by her blank indorsement thereon. She was deceased at the time of the trial, and the defendants offered to show that from the date of the eertifficate to the the time of her decease she was insane, and incapable of transacting business. The plaintiff objected to the proposed evidence, and the Court excluded it. No ground was suggested on the argument upon which the ruling could be sustained.

Held, That if Mrs Failing was insane she could have made no valid assignment of the certificate, and the title thereto would have been in her personal representatives after her decease, and not in Mr. Sheldon.

Judgment below reversed with costs, and new trial ordered.


author: Graves, J.

text:
    Pip et al. vs. Reynolds and Hess.
    A. sues B. Declaration alleges tbatB. promised, for a consideration to labor for A., which C had before agreed to do, but does not state to whom B. .made the promise. Held, The declaration doe} not allege a cause of action against B.
   Opinion by

Graves, J.

In this case the Court below instructed the jury that the special counts in the declaration did not allege a cause of action, and there was judgment for defendants.

The declaration sets forth that the defendants promised — for a certain consideration from one Ecklin — to perform a job of painting for plaintiffs, which Ecklin had before agreed to do for them, but it is not stated to whom the defendants made this promise. It is, however, alleged that “ by means of the premises, promises and undertakings, the defendants became liable,” &c.

Held, That the passage in the declaration which alleges the liability of the defendants, has no effect as a statement of a ground of action; that it is only a conclusion of law and not an allegation of fact, and unless the facts should appear to warrant this conclusion, the declaration could receive no aid from it.

Held further, That the declaration sets forth no cause of action against the defendants, since the contract set up appears to have been made between Ecklin and the defendants; and the plaintiffs are not shown to have been connected with the consideration or promise, or to have been privy to the transaction; that the fact that the defendants agreed to perform a job for Ecklin, which the latter had agreed to perform for the plaintiffs, does not invest the plaintiffs with the right to recover of the defendants in special assumpsit, on an agreement to which they were strangers, any damages caused by the failure to perform that agreement.

Judgment below affirmed with costs.


author: Campbell, C. J,

text:
    Robert Franklin vs. Charles G. Foster.
    A husband is not bound to pay a 1 oan made to his wife which he has n ot authorized. A for* tion, he is not liable where it has been agreed to conceal it from him.
    Case made from Ottawa Circuit.
   Opinion by

Campbell, C. J,

Franklin loaned to Foster’s wife $35 on her promise to mention the circumstance to her husband, but she neglected to do so. Afterwards. Franklin had a settlement, of his dealings with Foster in which this loan, at the request of the wife, was not mentioned. Subsequently, and without ever calling upon Foster for'the money, Franklin sued him to recover it. The Circuit Court rendered judgment for the plaintiff. This Court reversed it, as wholly unwarranted by any legal principle.


text:
    Babcock vs. Twist and Wire and Another.
    A bill was filed to compel the execution of a mortgage, in pursuance of an alleged agreement to secure an indebtedness, with interest. Proofs showed that the agreement was for a mortgage to secure interest only. Complainant allowed to amend bill and take decree accordingly.
    A wife cannot set off a claim of her husband against a debt due from herself.
    Appeal from Washtenaw.
   Opinion by

Campbell, C. J.

A father purchased land and paid for it and had a conveyance made to his daughter, to be delivered when she should execute to him a mortgage upon terms agreed upon, which were payment of interest, if demanded,' hut not of principal. Part payment was made,- and afterwards,; upon disagreement and refusal to mortgage, the daughter obtained and recorded a second deed to herself from the original vendor — the first deed not being recorded, but having been taken by the father to obtain a settlement with her.

On bill filed by the father setting up the facts, but claiming the mortgage was to secure principal as well as interest, the Couit, considering his age. and the relationship of the parties, allowed complainant leave for an amendment of the hill according to the facts established by defendants, in his favor, instead of a dismissal without prejudice, and directed the mortgage to be executed and a sale to be had for the interest in arrears.

The daughter claimed to set off by way of reduction of the mortgage an alleged claim belonging to her husband for board of her father. Held, that if the husband .had any such claim it was not a proper set off against’the debt due by the wife.


author: Christiancy, J.

text:
    Edward Williams et al. vs. The Albany Insurance Company; also, The Same vs. The Republic Insurance Company.
    Error from Wayne Circuit.
   Opinion by

Christiancy, J.

The actions were upon policies of insurance upon a vessel It appears that the premiums for the policies were covered by a promissory note payable at a future day, and that the policies contained a stipulation that in case the note was not paid when due the risk should be suspended during the time while the note remained overdue and unpaid. In fact, the note was not paid when due, and the vessel was lost while it remained unpaid. The note was afterwards paid, and the principal questions considered by this Court were, first, whether the stipulation suspending the risk was reasonable and valid; and, second, whether the defendants waived it by receiving payment of the note afterwards.

Held, that the stipulation was reasonable and valid, and was not waived.

Held, further, that the insurance companies did not preclude themselves from relying upon their stipulation by putting their refusal to pay upon another ground when .the loss first occurred.

Judgment for defendants affirmed.


author: Brown, Judge.

text:
    Henry E. Hawkins vs. Mary M. Hawkins.
    Where an Application for temporary alimony wae submitted after a default for non-Appearance set a«ide, and appearance entered ; hcld¡ that the notice of the application though served by defendant’s Solicitor before default set aside, and appearance entered, was a good and sufficient notice.
    Motion for temporary alimony, submitted at the August term, 1869,
    of the Circuit Court for the County of Allegan, in Chancery.
    In this action, a bill of complaint was filed by the complainant against the defendant for a divorce, charging her with desertion. The defendant failed to. cause her appearance to be entered within the time prescribed by the rules of Court, whereupon an order taking the bill as confessed was duly entered. A motion is now made to vacate the order, to set aside the default and for leave to answer ; notice of which, signed by the defendant’s solicitor, was served on the complaintant’s solicitor, July 26th, 1869. Notice was also served at the same time of the intention of the defendant to apply to the Court for an order for temporary alimony, and means to enable her to defend the suit. This latter application is predicated upon a petition, a copy of which was attached to and served with the notice. The petition, duly verified, showed the indigence of the defendant, and an excuse for her default, and set forth that she had prepared an answer, &o., &o.

    The Court-permitted the appearance of the defendant to be entered and her answer filed, August 3d.
    On the . argument of the motion for alimony, August 12th, it was contended among other things, “that, .as at the time of the service of the notice, the defendant’s appearance had not been entered in the action, the notice was a nullity, and though it purported to be signed by her solititor, it should be treated as if served by a stanger.”

      Severens & Burrows, for Complainant.

      T. R. Sherwood, for Defendant.
   By the Court,

Brown, Judge.

In this case, rule 61 would require a four days’ notice. The notice was served July 26th, while the defendant’s appearance was not entered until the 3d of August — the day on which this application was presented to the Court.

The subpoena required the defendant to enter her appearance by a certain day; this she failed to do.

It is a.well established rule of equity practice, that a party cannot apply to the Court for favors waile in contept for a non-compliance with its orders, or when in default for not meeting or complying with the requirements of its writs. This rule, however, never applies where the application is one of strict right. A party has a right to apply to the Court to set aside a default, on proper showing. Such application, and notice thereof, is necessary in order to get into the case. But it is contended that no such necessity exists in relation to any other application, and that as the Court would not grant alimony to the defendant, without her appearance in the case, it would not, for such purpose, recognise the acts of her solicitor, until his appearance had been duly entered; that in fact he was not to be considered her solicitor, so as to bind the opposite party, until the entry of his appeárance, as prescribed by the rules; and that as such appearance was not entered until August third, the notice of this application, served by him July 26th, was a nullity.

The practice in equity proceedings does not-accord with this theory. It is the every day practice to embrace in one notice and in one motion, when a party is in default, several'things; as, to set aside a default, with leave to enter an appearance, and file an answer. A complainant serves his subpoena upon the servant of the defendant. The defendant, believing the service to be irregular, does not enter his appearance, but serves a notice upon the complainant’s solicitor, of a motion to set aside the proceedings for irregularity. The Court, without questioning the sufficiency of the notice at the argument, required the deiendant to enter a conditional appearance, so that the complainant could proceed if the application should be denied. — 2 Lond. Jurist, 464. So where a copy of subpoena to appear and answer, is as to the return day and month, served in blank, it is not a good service, and a motion will be entertained to set aside proceedings under it, without requiring the appearance of the defendant to be entered. Arden vs. Walden, 1 Edw. Ch. R. 631. In the case in 1 Paige, 646, an order had been entered to close the proofs. The defendant was in contempt for not paying costs of a former motion, and an attachment was issued, but the costs had not been paid. The defendant nevertheless applied for a commission.. The Court granted the motion on condition of his purging his contempt by payment of costs, &c.; and this was done, notwithstanding the party was in contempt at the time of serving his notice.

By law, C. L. § 3234, the Court may require the husband to pay any sums necessary to enable the wife to carry on or defend the suit. The statute is silent as to how this application shall be made. The practice has been by petition, notice of which is served on the husband, or his solicitor, if he has retained one.

Suppose the husband file his bill against the wife for divorce, and she, having no means is unable to proceed a single step in her defence: I think, in such a case it would be proper to order the payment of a sum to her immediately, that she might employ a solicitor to defend her. But, in the case before us, there is no question but that the defendant is now in a condition to ask of the Court an order for means to defend her suit; and I do not think it essential that the appearance of her solicitor should have been entered when the notice of this application was served. The motion, however, must be denied, for the reason that the petition served did not set forth sufficient facts to constitute a good defence to the bill.


author: Blackman, J.

text:
    Caleb K. Dodge vs. Mary Dodge.
    A petition for a further allowance, under $ 3234, O. L., should show a proper expenditure of previous allowances, and the purposes and sums for which a further allowance is necessary to be made.
    Where a defendant, in a proceeding instituted to procure a divorce, files her petition stating that she “is pregnant with child begotten by the complainant,” and praying for an order that the complainant testifv orally in Court; held> that such statement is not sufficient to warrant the Court, under Ch. Rule 99, in ordering the eomplainan t to testify orally in open Court as to access to the defendant.
    Motion submitted Dec. 17, 1869,
    in the Circuit Court for the County of Berrien, in Chancery.
    In this case, the defendant made application to the Court, by petition, praying for a further allowance, to enable her to defend the suit, and for an order that the complainant testify orally in Court. The hill in this case, charged the wife with practicing extreme cruelty towards her husband. It was after-wards so amended as to charge adultery. The answer denied both charges, and stated that both parties occupied the same house with seperate bed-rooms, and that the complainant since the filing of his bill was in the habit of having intercourse with her.

      The case had been submitted to the late Judge Bacon, on pleadings and proofs, but had not been decided by him.
    The petition stated that allowances, to the amount of fifty-five dollars, had been paid by complainant; of which sum, the petitioner had been informed, twenty-eight dollars had been expended, but did not state bow that sum or the balance had been used. It further stated, that she was pregnant with child, begotten by the complainant, about June, 1869.
    The defendant, in a counter affidavit, denied this, and all intercourse with her. The fact that they lived in the same house, and professed to occupy seperate bed-rooms, was undisputed; but the complainant claimed he could not get the defendant to leave.

      E. Bacon, for Complainant.

      C. M. Aboard, for Defendant.
   By the Court,

Blackman, J.

The petition upon which the Court is called to act, shows that the defendant has had an allowance of fifty-five dollars. Before an order for additional means could properly be made, the petitioner should show a proper expenditure of the previous allowance, and the purpose and sums for which further allowance is necessary to be made. This, the petition does not show.

The Court cannot, under Ch. Rule 99, upon the facts stated in this petition, order the complainant to testify orally, in open Court, as to his intercourse with the defendant.

The application must be denied.


text:
    Wm. Zimmerman and John Mark vs. The Merchant’s National Bank of Charleston, Va.
    The sheriff’s return, showing regular service of declaration and notice of rule to plead as commencement of suit, cannot be contradicted for the purpose of invalidating tho proceedings founded thereon} but it may be contradicted to- show excuse for default.

      Saginaw Circuit Court,

    1868.

      J. J. Wheeler, for Plaintiff.

      Webber & Smith, for Defendant.
   By the Court,

Sutherland, J.

The motion made in this case is to set aside the proceedings for want of service with the declaration, of a notice of the rule to plead. There is a return of the sheriff, that he served the declaration and notice of the rule in the usual form — but the defendant offers a counter showing, contradictory the return as to the notice.

In certain exceptional cases, as where motions to amend are made, a default to be excused, or where the purpose of the contradiction is not to invalidate a proceeding which appears fair and regular on its face, the return of the officer may be contradicted ; and this may be done in respect to statements of matters of opinion, or of collateral facts; but not of acts returned as done, which are required of him in the performance of his duty in pursuance of the precept returned; or in pursuance of the statute applicable to him, as, in case of a declaration. The jurisdiction of the Court depends on his return, and it is matter of record when it has been filed, against which there can be no averment to destroy its effect in favor of the party, though it is not conclusive in favor of the officer, or against those persons who are technically strangers. If service is made by any other person, and such service is proved by affidavit, there would be reason in favor of allowing the showing to be contradicted. The plaintifij by not employing the ministerial officer of the Court, deprives the defendant of the security provided by law, in case of recovery, for false return.

The case of Wendall vs. Wearridge, 19 N. H., 113, is not opposed to this view. There, a return not sufficient on its face, was sought to be amended by supplying some deficiency ; against this motion, it was allowed to be shown that the service was not sufficient, — and on the ground that the record, as it stood, was not valid to support the jurisdiction. There are several cases cited in the briefs in that case, from New Hampshire reports, which I have consulted, and they support the.positions here taken.

The motion must be denied, but the default may be set aside, on filing an affidavit of merits, and paying the costs of this motion, including an attorney fee of three dollars.


author: Brown, J.

text:
    Edward H. Davis vs. The Township of Kalamazoo.
    In the year 1866, supervisors had no authority to assess National Bank Shares.
    Property cannot be assessed after the review day.
    A supervisor is not,.in the ordinary acceptation of the word, the agent of the Township, and the Township is not liable for errors in judgment.
    If a supervisor, acting without jurisdiction, causes the money of the tax payer to be placed in the treasury of the Township, the Township is liable.
    A supervisor, in assessing property, acta in a judicial character. Therefore, where a tax, or, rather, the object for which the tax is assessed is legal, and where the assessor has jurisdiction over the person and property of the tax-payer, and assesses property exempt, by laxo from taxation, such assessment must be taken as an overvaluation, and mnst be considered valid, until set aside, in a direct proceeding for that purpose.

      Tried by jury, in the Circuit Court, for the County of Kalamazoo,

      September 9th, 10th and 11th 1869. Verdict for Defendant.

    The facts in this ease, appear in the charge of the Court.
    Authorities cited: 3 Wallace 573; C. L. 329; 17 Mass. 461; 4 Pick 361; 12 Pick 7; 4 Met. 189; 5 Met 73; 6 Met. 506; 3 Cush. 572; 7 Cush. 442; 27 Maine 145; 20 E. L. & E. 319; 1 Ohio State 274; 11 Ohio State 536; 10 Howard U. S. 242; 2 Smith’s L. C. 405, 4 Cowen 454; 3 Mich. 562: 8 Mich. 433; Amer. L. Rev. Oct. 1868, 169; 5 Mich. 73.

      Stewart & Edwards, for Ptff.

      Severens & Burrows, for Deft.
   Charge of the Court,

Brown, J.

Gentlemen of the Jury: This is an action, brought by the plaintiff, to recover from the Township of Kalamazoo, the sum of |143,90, being the amount of a tax claimed to have been assessed by the supervisor, acting as an assessor, upon 120 shares of bank stock, of the First National Bank, of Kalamazoo, belonging to the plaintiff.

Some of the facta, alleged by the plaintiff, are admitted by the defendant, and therefore, in relation to them, you will consider them as proved. These admissions I understand to be as follows:

1st. That in the year 1866, the plaintiff was the owner of 120 shares of bank stock, of the First National Bank, of Kalamazoo, of $100 each.

2d. That the supervisor assessed personal property of the plaintiff, valued at $3,750. $3,600 of which was upon said bank sioek ; that the total tax upon personal property was $149,86— $143,90 of which would be the tax upon the 120 shares of bank stock. That the tax was made up as follows :

Prop, of tax on shares.
State tux,.............................. $12 38 $11 89
County tax, ................... 24 95 23 95
Township tax,........................... 48 38 46 48
School tax,............................ 64 15 61 58
Total, $149 86 $143 90

It is admitted that the collector, to secure the payment of this tax, levied upon the property of the plaintiff, and that to prevent the sale of such property, the plaintiff paid tbe tax.

There is no dispute but that the 1st National Bank of Kalamazoo, was organized in pursuance of the National Currency Act, of June 3rd 1864. It is not contended th it there was, at the time, any statute of this State conferring, in terms, the power to tax these shares. On the part of the plaintiff it is claimed that the 41st section of the National Currency Act referred to, does not confer such power, inasmuch as that limits the power of taxation by tbe States, upon these shares, to the same limit that is imposed by the State laws upon tbe shares of Banks created by State authority, and that the law of this State- authorizes only a specific tax of one, and one-half per cent on tbe capital stock of its Banks paid in. The plaintiff claims that the taxation of these shares is not only a violation of the Constitution of.the United States, but of the law of Congress — that this exemption from taxation by the Bank, and consequently the shares of its stock, covers its capital, operations and franchises — that the Bank is an instrument of the General Government, in theext-rcise of its powers, and that as its franchises were not derived from the State, the State cannot put a tax upon it as a royalty ; and as its capital is invested in Government securities, the State has no right to tax it.

The plaintiff further claims that the assessment of this bank stock is, in any event, invalid, for the reason that it was not assessed within the time prescribed by law; that on the review day, so-ealled, the supervisor, acting as assessor, had not yet assessed this property : that after that date he had no authority to make any such, or any other assessment — that he had no such right; but as to whether the allegation on the part of the plaintiff in respect to this assessment, is correct, or not, is a question of fact, for you to determine.

An assessment consists in putting upon the roll a statement of the property, whether real or personal, and determining and affixing thereto a valuation ; but it is not essential to a valid assessment that the valuation should be carried out in ink. The assessment is sufficient if the assessor has actually placed upon the roll the property, and determined its valuation, and that determination is a question of fact, to be determined from all the circumstances.

On the part of the defendant, it is claimed that even if the propositions of the plaintiff as to his non-liability or exemption from tax upon his bank stock be true, the plaintiff has mistaken his remedy in commencing this proceeding against the township ; that the only instances where parties are permitted to bring a suit against a municipality to recover an improper tax is,

First, Where the tax itself, or the object, rather, of the tax is illegal and without authority of law.

Second, When the person taxed is a non-resident of the municipality where the tax is levied. Tn short, that this form of rem edy cannot be resorted to, where the assessor had mrisdietion of the pe rson or property, if the tax itself is legal.

The defendant further claims that if the evidence should disclose the fact that the capital stock in the bank was included and mingled by the supervisor, in the personal property for which the plaintiff was assessed by the supervisor, and the several taxes for the year were spread by him upon the roll, the plaintiff’s tax being apportioned according to the amount of his aggregate valuation, so made, by ixeluding such bank stock, and that the plaintiff paid his tax under duress of his goods, and under protest, still such facts would not entitle the plaintiff to recover.

The defendant also claims that the supervisor in assessing the taxes, acts as a public officer, and not as the agent of the township, and that the township is not responsible for his errors, or unauthorized acts, in making such assessment.

*

The defendant further claims that the township, not ‘ having received the benefit of the tax apportioned for State, County and school purposes, should not be called upon in equity and good conscience to refund the money w hich it had never received, or the benefits of which it had never enjoyed.

* ‡ * * Jfc

The Court advises you, gentlemen—

1st. That the supervisor had no right to assess the bank, shares of the plaintiff, and that such assessment is without authority of law.

2d. Though the statute is not very explicit upon the point it would seem that the supervisor has no right to assess property after the third Monday in May, and that such assessment would be without authority, and I charge you that such is the law.

3d The Supervisor, th ough acting for the township, is not, in the ordinary acceptation of the term its agent — neither himself nor the township being liable for a mere error in judgment., in case where the matter in relation to which he errs is by the law, one about which he had the clear right to exercise his discretion.

4th. Notwithstanding this, if the supervisor acts in a matter, without jurisdiction, and thereby places money in the treasury of the township, an action of assumpsit is the proper form of remedy for the tax-payer whose money had been paid under protest for duress of his property.

5th. The supervisor or assessor derives his powers from the Statute, and assuming that he is only authorized to make assessments up to, aud perhaps including, the third Monday of May, any assessments made by him, after that date, are without authority, and he has no jurisdiction over either the person or property of the tax-payer for the purpose of assessment, and the tax-payer would be entitled to bring and maintain his action in this Court to recover back, money, paid under protest, for such tax.

6th. In such a case the amount recoverable would be such only as was paid over to the township for township purposes, which, in this case, if you should find plaintiff entitled to, recover, would be $46.44, that being the amount of tax for township purposes which it is admitted was assessed upon the bank shares of the plaintifl in 1866.

7th. If you find from the evidence that the bank shares of the plaintiff were assessed on or before the third Monday of May, 1866, — it being admitted that the plaintiff was a resident of the township of Kalamazoo, — the Court charges you that the supervisor, having jurisdiction over his person and property, acted in the assessment of the plaintiff's property in a judicial, or at least quasi judicial character, and the assessment of his bank shares is to be taken as an overvaluation of his property.

8th. ■ In view of the conclusion I have just expressed, you are instructed that the only legal remedy the tax-payer would have in such a case, would be to appeal from the decision and determination of the assessor to some tribunal or authority competent to reverse such determination.

As to what that tribunal should be, it is not necessary for you to enquire. It is enough for us to know, that the Courts state the law to be, that such an assessment is in the nature of a judgment, and that judgment must stand until- it is set aside, or reversed, in a proceeding ,had for that special purpose; and the Court charges you that this is not that kind of a proceeding.

Verdict for defendant.


text:
    Myers vs. Vilburn.
    Default for want of plea entered without entry of defendant’s appearance. Irregularity may be cured by entry of appearance nunc pro tunc, there being no defence.

      Alpena Circuit Court,

      Oct, 1869.
    Motion to set aside default for want of a plea for irregularity, the defendant’s appearance not having been entered. No affidavit of merits made, and no defence claimed.

      Kelley, for Plaintiff.

      Tuttle, for Defendant.
   Sutherland, J.

—The defendant’s appearance may be entered nunc pro tunc, and it is directed to be so entered.

Motion denied. (See § 4109 C. L. Green's Pr. 58.)


author: Sutherland, Judge.

text:
    Humphrey Shaw vs. Thomas Kenny.
    Default will not be set aside to enable a defendant to sofyup an unconscionable defence.

      Saginaw Circuit Court,

      June 28, 1869.
    Motion-to set aside judgment, rendered on default absolute.
    The plaintiff brought this suit on a judgment recovered by him against the defendant in this Court. Execution was issued and returned satisfied by sale of land to the plaintiff. The default was sufficiently excused. But the plaintiff shows that after the execution sale the defendant filed a bill in Chancery to quiet his title to the real estate so sold on execution, and to remove the cloud of that execution sale, claiming the land as a homestead —that this plaintiff answered that bill by disclaimer and release and that no motion to vacate the entry of satisfaction in the former suit has been made.

      Geo. K. Newcomb, for Plaintiff.

      Isaac Marston, for Defendant.
   Sutherland, Judge.

The judgment and default should not be set aside, to enable the defendant to set up as a defence, the satisfaction of the judgment by such a sale.


text:
    Charles E. Gillett vs. Augustus Arnt.
    Time to plead will not run while an irregular default stands against the defendant.

      Saginaw Circuit Court,

      June 1, 1869.
    Motion to set aside default, fornot pleading, for irregularity.
    Suit commenced by declaration — declaration filed and rule to plead entered January 9, 1869 — 'delivered to sheriff for service, March 19, 1869; and defendant’s default for not pleading entered the same day — March 24, declaration and notice of rule served. April 16, second default entered. May 14, affidavit of merits made, and that defendant did not sooner know of second default.

      D. W. G. Gage, for Plaintiff.

      D. W. JGerlcins, for Defendant.
   Sutherland, Judge.

The first default was irregular. It was, however, waived, by service of declaration afterwards ; but the defendant was not obliged to act upon such an implied waiver; he was justified in waiting until the plaintiff should expressly waive it; and the plaintiff could not regularly enter a second default, without giving the defendant twenty days to plead, when no default stood against him.

Default set aside without terms.


text:
    Meyers vs. Vilburn, Principal Defendant, and A. B. Garnishee.

    Dxfauit For want of disclosure may be entered against a garnishee, on his fallare to appear to a citation to answer special interrogations on exception to disclosure.

      Alpena, Circuit Court,

      Oct. 1869
    The garnishee filed disclosure: and exceptions to it having been filed, a citation to answer special interrogations was issued. The garnishee did not appear to the citation, and therefore on an affidavit of such omission, his default, for want of a disclosure, was ■entered.
    Kelley, for Plaintiff.

      O. D. Conger and Tuttle, for Garnishee.
   Sutherland, J.

The Statute authorizes an entry of default for want of a disclosure. L. 1833, p. 898, See. 5.

On exception to disclosure for insufficiency, a notice to answer the exceptions or special interrogations, is the mode prescribed to obtain a full disclosure.

There is no way provided to compel actual appearance and answer to such special interrogations. But an insufficient disclosure, is no disclosure.

On the exceptions being allowed, and the failure of the garnishee to answer them, (Laws 1863, p.'397. Sec. 4. ) his default en ay be entered for want of a disclosure.

Motion denied.


text:
    Armstrong, Appellee, vs. Fry, Appellant.

    Ks? resurtiré mude by a justice, to an appeal, it is conclusive evidence of the payment of the coats -and fees, required to be paid to the justice in order to appeal.

      Saginaw Circuit Court,

      Oct. 8, 1869.
    Judgment was rendered August 20, 1869, by a Justice of the Peace. Affidavit and bond for appeal, filed August 24, 1869. -Justice’s fees paid August 28, 1869, and return made.

      Motion to dismiss appeal because the costs were not paid within five days after judgment.

      Foot & Grout, for Appellee.

      J. Brousseau, for Appellant.
   Sutherland, Judge.

Paragraph 3856, C. L. applies to such a case. The return having been made, it is conclusive evidence that the costs and fees have been paid. The “ costs of the justice” and “ such fees ” mentioned -in that section — “ the fee paid to the justice,” in § 3864, and “ the fees of the justice.” in sub. 6, § 3845, all refer to the moneys for fees and costs required to be paid by $ 3840, in order to appeal.

Motion denied, with usual motion costs.


text:
    McLellan vs. McDonald.
    A whit of attachment contains a summons; if personally served where Bumraone could be served, will give the Court jurisdiction over the person, though the writ void as an attachment.

      Circuit Court for Alpena County,

    Oct., 1869.
    Motion to quash a writ of attachment because the affidavit annexed does not state that the amount therein claimed to be due, is due “ over and above all legal set-off.
    The writ was personally served in Alpena County, and the property bonded.

      S M. Green, for Plaintiff.

      Tuttle & Grier, for Defendant.
   Sutherland, J.

The writ containing a summons, and having been personally served, where a summons from this Court could be served, the Court has acquired jurisdiction of the person; and, the defendant having obtained the property by giving a bond, the motion should be denied. It is- not necessary to decide whether the bond is valid. See § 4759 C. L.


text:
    Worden et al. vs. Erskine.

      Alpena County Circuit Court,

    October, 1869.
    Defective affidavit for replevin — writ quashed — property replevied ordered to be restored, and motion costs awarded.
    Motion to quash writ of replevin. The affidavit annexed to the writ was made by plaintiff, Worden. It states that the property described in the writ has not been taken for aDy tax, <foc., “nor seized under any execution or attachment against the goods and chattels of this deponent,” <fcc., instead of the plaintiff’s.

      S. C. Draper, for Plt’ff.

      J. B. Tuttle, for Dei’t.
   Sutherland, J.

—Held, that the motion be granted, and that the property replevied be returned to the defendant, and that the plaintiff pay the costs of this motion, including an attorney fee of five dollars.


text:
    Cicero and Jones vs. Bates.

      Alpena County Circuit Court,

    October, 1869.
    Kelley, for Plaintiff
    Tuttle, for Defendant.
   Sutherland, J.

Held, copy of affidavit annexed to writ of attachment, not required to he served with the writ. Endorsement of writ by plaintiff’s attorney may he made after motion to quash. A command, in the writ to “ summon defendant, if to be found in tills State," does not vitiate the writ, if served in the proper county.


text:
    J. Meyers vs. Vilburn.
    Amendment of Writ of Attachment by substituting full Christian name of plaintiff for initial letter.

      Alpena County Circuit Court,

      October, 1869.
    Motion to quash writ of attachment because the plaintiff’s name is not stated*in full. An affidavit being read in behalf of the plaintiff showing that his Christian name is Julius, and excusing omission to state it in full in the writ and affidavit.
    Kelley, for Plaintiff.
    Tuttle, for Defendant.
   Sutherland, J.

Held, that the plaintiff have leave to amend the writ and other proceedings, so as to show the full name of the plaintiff.


text:
    Brown & Browning vs. Hollister.
    A party to a buit, who recovers a judgment, is entitled to witness fees, when his attend. anee at Court íb necessary as a witness.

      Circuit Court, Kalamazoo County,

      November Term, 1869
    Isaac A. Brown and William F. Browning brought suit againtt George F. Hollister, in assumpsit. Pendiug the snit, Browning assigned all his interest in ihe subject matter of the suit, to plaintiff Brown. On the first trial the jury disagreed. On the second trial a verdict was rendered for plaintiff,
    ' On taxation of costs, Brown made and presented to the Clerk, his affidavit, in which, he sets up that Browning was a material witness, on both trials, and would not have attended Court except, at Brown’s request to testifiy in the cause. Thereupon the Clerk taxed as a part of the plaintiff’s costs, $32.46 fees and milage for Browning, as a witness.

      J. W. Breese, for Plaintiff.

      May and Buck, for Defendant.
   Brown, J.

This is an appeal from the decission of the Clerk, in taxing as a part of plaintiff’s bill of ^osts, witness fees and milage for the attendance at Court of one of the plaintiffs. From the statement agreed' upon by Counsel for the resptctive parties, the taxation by the Clerk was proper; nor is it material that Browning had no pecuniary interest in the result of the suit. Had he made no assignment to Brown, the rule would be the same, if his attendance was necessary, as a witness, and his presence in Court' was for the sole purpose of testifying.


text:
    The People vs. Robert McGra.
    The words “ adjoining to or occupied with a dwelling house,” as used in # 5756. O. L., hay® a legal signification different from the literal construction, or popular understanding of that language.
    The language referred to, in that connectien, is designed to bring the case within tho-pim* mon law definition of burglary, yiz: out-houses within the curtilage — adjoining to the dwelling and occupied as part thereof.\

      Tried Dec. 2d, 1869,
    In the Circuit Court for the County of Kalamazoo.

    The respondent was charged under § 5756, C.-L., with burglary, in breaking and entering the “ store” of one Bartlett, at 242, Main street, Kalamazoo.
    Immediately west of the building occupied by Bartlett, and separated from it by only a partition wall, is the store building of Johnson & Sheldon. Over Johnson & Sheldon’s store is a room occupied bya Mrs. Paine and family, as a shop and dwelling. To reach this room, is a flight of stairs, from the street, between Bartlett’s and Johnson’s building, at the top of which is a door on the right, entering the second story of Bartlett’s building, and one at the left, entering Mrs. Paine’s room.
    The language of the statute- under which the respondent was informed against, is as follows: “ Every person who shall break and enter, in the night time, any office, shop, railroad depot, or warehouse, not adjoining to or occupied with a dwelling house” &c., “ shall bé punished, &e.’’

      The Court was requested, by respondent’s counsel to charge the Jury that “if they should find that a family lived in, and occupied the second story of the store next to and adjoining the one broken into, as their only dwelling, or sleeping apaitment, it is their duty to acquit the respondent.”
    Many other points were raised on the trial, and the Court was requested, in behalf of the respondent, to charge the Jury cn some fifteen distinct propositions. Some of those weie elementary, and others have been so often passed upon, that it is not thought advisable to insert them here.
    So much, only, of the charge of the Court as bears upon the request above quoted, is given.

      J. C. Burrows, Pros. Att’y., for the People.

      Geo. M. Buck and Arthur Brown, for Respondent.
   By the Court,

Brown, Judge.

—On the part of the respondent, it is claimed that the store, in which the alleged offence was committed, adjoined a dwelling house, and that therefore it would be impossible for him to commit the crime of burglary by breaking and entering said store, with the intent to steal therefrom, or with any other intent.

Every house for the dwelling and habitation of persons, is said to be a dwelling house. At common law, buildings attached to or within the same curtilage, or enclosure, and under the dominion of the same proprietor were said to adjoin each other; or, if the buidings were under the same roof, or if they had an internal communication with the main dwelling.

The question then, is, what is an adjoining house within the meaning of the statute. It has been held, and I think correctly, in a case where a manufactory was carried on in the center building of a great pile, in the wings of which several persons dwelt, but which had no internal communication with these wings, though the roofs of all the buildings were connected, and the entrance to all was out of the same common enclosure; upon the' center building being broken and entered, that it could not be considered as part of any dwelling house, but a place for carrying on a variety of trades, and no parcel of the house adjoining, with none of which it had any internal comnpmication, nor was it to be considered as under the same roof, though the roof had a connection with the roofs of the houses.

The words of the statute, “adjoining to or occupied with a dioelling house,” have a legal signification. They must be taken, read and construed in connection. They mean something more than adjacent or contiguous. They are evidently designed to bring the case within the common law difinition of burglary, viz : out houses within the same enclosure — adjoining to the dwelling and occupied as part thereof.

This construction of the statute will reconcile the several sections on the subject of burglary.

To make the matter even plainer, if possible, the Court advises you that the- dwelling house of Mrs. Payne does not, within-the meaning of'the statute," adjoin the store building occupied by Mr. Bartlett.

The respondent was convicted.


author: •Brown, J.

text:
    Laura A. Emerick, Executrix of the Will of Walter M. Emerick, deceased, vs. Walter O. Pierson and William Crisp.
    Where, in a suit, in Justice’s Court, brought upon a promissory note, the defendaut seeks to avoid liability, on the ground that such note has been changed to a greater sum, after its execution, he must, at the time of joining issue, deny the execution of the note, on oath.

      October Term,

      Allegan County.

    This is an appeal from a Justice of the Peace.
    Suit was brought to recover on a note, of which the following is a copy :
    “ $204. Plainwell, July 18, 1868.
    “Sixty days alter date, I promise to pay to the order of

      “Walter M. Emerick or bearer, two hundred and four dollars, “ value received, at ten per cent."

    “Walter O. Pierson,
    William Crisp.”
    The note was filed with the Justice, as plaintiff’s declaration. Upon its face it showed that the figure “ 4 ” in “ $204,” had been written over a figure “ 2and that the word “ four ” in the body of the note had been written over the word “ two.” Neither the figure “ 2 ’’ nor the word “ two ’’ had been erased. The note was given for money loaned to Pierson, who did not appear to defend the suit. The defendant, Crisp, sought to avoid his liability on the note, by showing, by his own testimo' ny, that the change was made after he signed it, by Pierson.
    Under the plea of the general issue, the defendants had given notice that they would give in evidence proof to establish the alleged alteration; and on the trial sought to introduce such evidence.

      Stafford & Padgam, for Plaintiff; J. W. Hawes and F. J. Little-john,, of Counsel.

      J. V. Rogers, for Defendant; J. W. Stone, of Counsel.
   •Brown, J.

The defendant, Crisp, to avail himself of the defehce which he claims, should have denied the execution of the note, on oath, at the time of joining issue in the Justice’s Court. If the note has been changed from $202, to $204, it is, though on the same paper, to all intents, a different note.

A promissory note is but a premise to pay money, reduced to writing — a note of promise. Take away the promise, and the note is destroyed. A promise to pay $202, is not an agreement to pay $204. It is another and different undertaking.

The indebtedness, in this case, is alleged to be upon a note for $204. Did the defendants sign a note for that amount? If not, They should have denied its execution in the manner provided by C. L. ^ 3714, 3767.

The proof offered is inadmissible, on an other ground — it relates to matters which, if true, were probably equally within the knowledge of Walter M. Emerick, deceased. Sess. L. 1861. p. 169; 16 Mich., 211.

Judgment for plaintiff.


text:
    The People vs. David Crocker.
    Pleading to a complaint, after an arrest on a void warrant, is no such waiver of the objection as will confer jurisdiction,
    'The warrant should be subscribed and sealed.

      Motion heard, October 26, 1869,
    in the Circuit Court for the County of Iosco.

      M. M. Match and D. J. Evans for the People.

      T. C. Grier for the Respondent.
   By the Court,

Sutherland, J.

This is a motion to quash the proceeding, and discharge the respondent on the grounds:

1st, The warrant of arrest is not signed nor sealed by the justice.

2d, The conviction and sentence is void, the justice having sentenced the defendant to pay a fine of $25, and be imprisoned until the fine is paid.

It is contended that by pleading guilty to the complaint, the objection to the warrant was waived; and that by taking the appeal, the objection to the judgment is waived, the judgment being vacated by the appeal.

The proceeding is in invitum, and pleading to the complaint after an arrest on a void warrant, is no such waiver of the objection as will confer jurisdiction. The warrant should be subscribed and sealed.

Motion granted — defendant discharged.


text:
    Charles La Brash vs. Augusta La Brash.
    Notice of a motion to set aside a decree for divorce, aix months after the entry of the same, should be served on the complainant, instead of his solicitor.
    Motion to set aside a decree, submmitted at the August term, 1869,
    of the Circuit Court for the county of Van Buren in Chancery.

      J. B. Upton, for Petitioner.

      Newton Foster, for Complainant.
   By the Court,

Brown, J.

'This is a motion to set aside a decree of divorce, granted at the last February term oí this Court. The motion is predicated upon the petition of the defendant, duly verified, setting up a meritorious defence, and alleging that no notice, either actual or constructive, was ever given her of the pendency of the suit. Notice of the motion and copy of petition was served on Foster, as complainant’s solictor. Foster insists that his relation with his client ceased on the entry of the decree — that the notice should have been served personally upon the complainant.

Six months 'have elapsed since the entry of the decree. For obvious reasons, the relation of solicitor and client should not cease immediately on the entry of a final, decree. Paragraph 3597 C. L., allows forty days in which to appeal from the decree or final order of a Circuit Court in Chancery. By rule • 14, Supreme Court rules, the appellant is required, within twenty days after perfecting his appeal to serve notice of such appeal “ on all the other parties, whether joint or adverse, who have appeared in such cause, by serving a copy of such notice on such parties or their solicitors in the Court below.” Here the relation of solicitor and client is recognized by the Supreme Court, as existing sixty days after the entry of decree. .This relation, however, must cease within a reasonable time ; and I think sixty days a reasonable time, and as more than that has elapsed, the notice should be served on the party himself. The petition may be filed, however, and an order entered requiring the complainantto appear and show cause on the first day of the next term, why the prayer of the petitioner should not be granted. A copy of the order should be personally served on the complainant, at least ten days before the first day of the next term of this court; and in case such service cannot be made, by reason of complainant’s absence from, or concealment in the State, a copy of the order, certified by the Register, may be served by publishing the same in some newspaper in the county of Yan Burén, for three successive weeks preceeding the first day of the next term.


text:
    The People vs. Isabella Stratton.
    Complaint was made, charging C. with rape, and8.,a female, with aiding and abetting in the commission of the sarao, Held, that by virtue ofparagraph 6065 oftheC. L., the distinction between an accessory before the fact, and a principal, and between principals in the first and second degree, in cases of folony, is abrogated. Held further, That as S. could not commit the principal offence, if guilty at all, it must be for the distinct substantive offence of‘‘aiding and abetting” in the commisbion of a rape. Therefore, respondent S. should have been complained of, and examined separate and apart from the respondent C.

      August term, 1869,

      of the Circuit Court for the County of Van Buren.
    Motion to quash information.
    In this action, the respondent, Isabella Stratton, is charged as an accessory to the crime of rape, alleged to have been committed by Milo Crager, in and upon the person of one Phoeba Manchester, on the 29th day of December, A. D. 1868.
    The complaint on which the respondent was arrested, charged Crager with the principal offence, and the respondent with being present, abetting and assisting in the commission thereof. Upo'n this complaint, the respondent was brought before the magistrate, and was held for trial, having had no separate or other examination than that on which the alleged principal offender was held for trial. Upon the examination thus had, an information was filed; to which, the respondent plead, pro forma. “ not guilty.” Her attorneys move to quash the information, on the ground that she has had no examination upon which an information could be predicated.

      Balch, Smiley & Bálch, for Respondent.

      J. B. Upton, Pros. Att’y., for the People.
   By the Court,

Brown, J.

By the Act of 1855, page 145, being § 6065, of the Compiled Laws, the distinction between an accessory before the fact, and a principal, and between principals in the first and second degree, in cases of felony, is abrogated.

The crime of rape is punishable by imprisonment in the State Prison; and by statute, all offences thus punishable, aie felonies.

Paragraph 6065, C L., provides that, all persons concerned in the commission of a felony; whether they directly commit the act constituting the offeuee, or aid and abet in its commission, though not present, may hereafter be indicted, tried and punished as principals, as in the case of misdemeanors.

Sections one and two, Chap., 161, page 686, of the R. S., of 1846, provide that “ every person who shall be aiding in the commission of any felony, or shall be accessory thereto before the fact,” &c , “ shall be punished in the same manner as she principal felon,” and “ every person who shall counsel, hire, or otherwise procure any felony to be committed, maji be indicted and convicted as an accessory before the fact, either with the principal felon, or after the conviction of the principal felon, or he may be indicted and convicted of a substantive felony, whether the principal felon shall, or shall not have been convicted, or shall, or shall not be amenable to justice; and in the lasi^ mentioned case, may be punished in the same manner as if convicted of being accessory before'the fact.”

It was held in the case of Shannon vs. The People, 5 Mich, 84, that § 6065, C. L., has the effect to repeal the sections just-quoted.

In the case at bar, as the respondent is a female, and therefore incapable ot committing the crime of rape, it follows, that if guilty at all, she must be guilty of “ aiding and abettiug” the principal offence; and this “ aiding and abettiug ” must be a distinct substantive offence. A seperate complaint should have been preferred against her, upon which she should have been examined. .This was not done, and I am of the opinion that there is nothing upon which to predicate this information.

The motion is granted.


text:
    Scudder vs. Wilcox and York.
    A writ of attachment is not, in contemplation of law, to be considered as returned, until the “ return day ” thereof, notwithstanding its actual return before that time.
    Though it is the duty of the officer to retain possession of the writ, until the “return day,” yet if he return it, net served, sooner, and the plaintiff, within thirty days after the “return day,” give notice by advertisement, as prescribed by \ *4759, C. In, judgment will not he set aside — all other proceedings being regular — on the ground of such premature return.

      October Term, 1869.

      of the Circuit Court for the County of Allegan,
    In this case a writ of attachment was issued ivlarch 31st, 1869, against,the defendants as absconding debtors — writ returnable May 4th, 1869.
    Certain real estate in Allegan County was attached, and on the 6th day of April, 1869, the sheriff returned the writ to the clerk of said comity, who filed the same iu his office, in the village of Allegan, with his written return thereon endorsed, showing that no personal service was made by him on either of the defendants.
    May 19th, 1869, notice was published of the pendency of said suit, under § 4759, C L., and neither of the defendants appearing in said suit, on the 3d day of August, 1869, the defendant’s default was entered; and on the 4th of August, second default entered, and judgment rendered thereon, on reference'to the Court to assess the plaintiff’s damages.
    At the next Term, October, 1869, the defendant’s counsel moved to vacate the judgment, on the ground that the Court had no jurisdiction to render it, for the reason that the notice was not published in time. That the thirty days within whlcq to'publish notice, commenced to run from the day the Sheriff returned the writ of attachment into the Clerk,s office, and not from the return day mentioned in the writ.

      J. W. Breese, for Plaintiff.

      Williams & Humphrey, for Defendants.
   Brown, J.

The notice having been published within thirty days after the “return day ” mentioned in the writ, the requirements of the statute were complied with.

On the argament, counsel contended that if the “ return day,” instead of the actual return of the writ, was to govern the time of advertising, then the actual return in this case, was premature, and all subsequent proceedings unauthorized.

There is, doubtless, much force in this suggestion; for, personal service should be had if possible, and a substituted service, by advertisement, is only to be resorted to when the person of the debtor cannot be reached by process.

As the writ, in contemplation of law, is not to be considered as returned, until the “ return day ” thereof, if the defendant should come within the officer’s bailiwick, before that-time, it would be the duty of such officer to serve his' writ; and though he may have actually deposited it with the Clerk, I caff see no reason why he might not, in such case, take it again for service. However, the better — if Dot the only correct — practice, is, for the officer to retain the actual possession of the writ until the return day.

Motion denied.


text:
    William Barrie vs. John McDenegle.
    Where a note ia made payable oa demand, at a certain place, it i« not necessary to show, in order to entitle the holder to recover, that demand watt made at such placo before suit was brought.

      Tried without jury, Nov. 29, 1869,

      in the Circuit Court for the county of Saginaw.

      H. H. Hoyt, for Plaintiff.

      Peck & Clark, for Defendants.
   By the Court,

Sutherland, J.

The only question is, whether the Plaintiff is entitled to recover, on a note for $200, payable on demand, at a specified place, without showing a demand before suit, at that place.

This precise question has not been decided in this State; but it was held in the case of Reeve, et. al, vs. Peck, 6 Mich. 240, that a note payable at a particular place, need not, before suit, be presented there for payment.

Whether the same rule will apply to this note will perhaps admit of some doubt, for there are American cases opposed to it. 17 Mass. 389; 3 N. H. 333; 13 Pet. 36; 10 Leigh, 512. I think, however, that to permit suit to be brought without previous can be reconciled with the contract, is more convenient, and better accords with the practice and sense of businessmen. It is also supported by respectable authorities — 3 Wend, 13; 21 Me. 98; 6 Ala. 701; 1 Gill & John, 176.

Judgment for Plaintiff.


text:
    William Kelley, vs. William Final and Fred. W. Carlisle.
    Court was in session from July» 8th to 10th, and then adjourned until July 26th. Default entered July 8th — made absolute, July 14th — Judgment, July 26th — motion to set a&ide default, July ibth. Held, default irregular.

      In Circuit Court for Saginaw County,

      July, 1869.
    The Court was in session from the 8th to the 10th of July, 1869 — the term was then adjourned until July 26th. Default éntered July 8th — made absolute, July 14th — Judgment taken, July 26th — motion by defendant entered to set aside the default as irrregular, July 28th — the objection to the default is, that it was made absolute before four days in term had elapsed, after the default.

      C. W. Wisner, for Plaintiff.

      W. A. Ciarle, for Defendant,
   By the Cauri,

Sutherland, J.

—The default is irregular — the defaulting party is entitled to four days of term when the Court is in session, so as to entertain the motion required by Rule 27, to be made within that time.

Default set aside with costs of the motion.


text:
    Peter Barkhead, vs. Geo. F. Williams, Martin Gilbert and Archibald Vanway.
    A person who writes his name on the back of a negotiable promissory note, without consideration, before the same is delivered to the payee, is not to be hold as a joint maker.

      Tried by the Court and decided July 31, 1869,

      in the Circuit Court for the County of Saginaw.

      IT. H. Weeler and J. Mantón, for Plaintiff.

      Gaylord & Hancheit, for Defendant.
   By the Court,

Sutherland, J.

This suit is brought on a promissory note made in the words and form following :

$500. “Saginaw City,Dee. 19, 1867.
Two months after date, for value received, we jointly and severally promise to pay J. W. Eeatherly or bearer, five hundred dollars. Signed, Martin Gilbert,
A. G. Yanway.”

Defendant Williams wrote his name on the back of the note. He has not been treated by the holder as an endorser; and he is not now sought to be made liable as such, on the usual conditions of demand and notice; but as a joint maker. His name was written on the note before it was delivered to the payee, but he did not participate in the consideration.

There is nothing but Williams’ relation of surety to the other defendants, and the position of his name on the note to indicate the nature of his contract.

It must be persumed that his name was put on the note to give it credit with the payee, and in pursuance of that intention some effect should be given to it, to increase the security for payment. The contract so indicated has received various constructions in different States, but none by the Court of last resort in this State.

It is belived that the decided weight of authority is against his being treated as a joint maker.

The fact that he did not put his name to the note in the same manner as the other defendants, is an indication of the intention of the parties that his liability should not be identical with theirs

His name is put to the note in such form that he could be held as endorser. He was not an endorsee or payee, and his endorsement was not operative to transfer a title; yet he may be an endorser and liable in that character. Dean vs. Hall, 17 Wend, 514; Oakley vs. Boorman, 21 Wend, 588; 1 C. M. & R 439.

Where his endorsement may operate to make him liable as endorser, such liability is presumed to be intended. Seabury vs. Hungerford 2 ill 80-83; ill vs. Newcomb, 7 ill 416.

When, however, the indorsement is upon non-negotiable paper, and therefore cannot be construed and made to operate according to the law merchant, then, to prevent an, entire failure of the contract, it is construed as binding in another form. Hill vs. Newcomb, 3 Hill, 232; 2 Hill. 80; Wetherwax vs. Paine, 2 Mich. 555.

The only question in the case is, whether the defendant Williams is liable as joint promiser. It must be- held that he is not.


author: Suterland, J.

text:
    Bliss & Janes, vs. Alexander Fenlater, et. al.

    Inquest under Buie 99, is baaed on default and an implied want of defence. It may be set aside like a default, on a seasonable application, and showing of merits.

      Saginaw Circuit Court,

      June 15th, 1869,
    Motion to set aside an inquest, taken under Rule 99. Affidavits made June 9th, read, showing merits and an-excusefor not filing affidavit of merits before first day of term, which commenced June 7th.
    Defendant’s attorney, ten days and more before term, sent by-defendant’s clerk, requesting to see defendant at once. The clerk reported the request to come in ten days, and at that time he came, and was too late to make, seasonably, the affidavit of merits.

      D. W. G. Gage, for Plaintiff’s.

      Foote & Grout, for Defendant’s.
   Suterland, J.

Held, That the proceeding, by inquest, is founded on default, and implied absence of a defence. When it is afterwards, within a reasonable time, made to appear that the defendant has a meritorious defence, and the omission to file an affidavit thereof is sufficiently excused, an inquest, like a regular default, may he set aside.

The inquest in this case will he set aside,'on payment of the costs thereof, including the costs of the motion, and an attorney fee of three dollars.