text:
    John Rayner v. Frederick J. Lee.

      Deed: Certificate of acknowledgment: Becord. A deed duly executed and acknowledged by the husband is admissible to record, notwithstanding the certificate of the acknowledgment by the wife, is defective. — Hall v. Bedson, 10 Mich., 21.

      Dower. A widow’s dower, before assignment, is a mere right in action and nothing more.

      Evidence: Continuous possession. The effect of evidence of continuous possession, as the basis of a claim of title, is not diminished by proof of occasional interruptions in the actual occupancy of the premises; nor by the fact, that at times, they were occupied by persons not distinctly shown to be in under any of the parties in the claimant’s chain of titlethere being no proof of any adverse occupancy, nor of any intention of the claimant or his grantors to abandon the possession. It is a just presumption that a tenant merely, is in under the party claiming title.

      Evidence: Adverse possession. Proof that a person entered into possession under a contract with a party under whom the claimant holds, it appearing that he never received a deed, and that he had ceased to occupy the premises, is not evidence of possessión adverse to the claimant.

      Evidence: Occupanoi/. A tenancy by a party who holds under a written lease may be proved by parol.

      Evidence: Title to Iwnds. In a bill to quiet title, it is sufficient, grima facie, if the complainant makes out a title, apparently good, as against the defendant.— Hall v Kellogg, 16 Mich., 135.

      Tax title: Double assessment: Once paid. A sale for taxes, for a year in which v it is shown the land was twice assessed and the tax once paid, is invalid.

      Assessment roll: Besident and non-resident property. A provision of law which requires that resident and non-resident real estate should be separately assessed must be observed, or the assessment will*) be invalid ; and a sale for unpaid taxes, not thus assessed, will convey no title.

      Heard May 5.

      Decided May 10.

    Appeal in Chancery from Livingston Circuit.
    The hill in this cause was filed by John Rayner, in the Circuit Court for the County of Livingston, in Chancery, against Frederick J. Lee, to quiet the complainant’s title to Lot 54, on Crane & Brooks’ plat of the village of Howell, and to compel a release of the defendant’s pretended title.
    The defendant answered denying the validity of the complainant’s title; claiming title in himself; First, under a deed made to him by the Auditor General of the State, based on a sale of the premises for taxes assessed thereon, and returned as delinquent for the year 1861; Second, under a deed from .Flavius ’J. B. Crane and wife to him, bearing date the 15th day of April, A. D. 1865 ; and Third, under a deed from the Marshal of the village of Howell to him, based on a sale of the premises for the non-payment of municipal taxes assessed thereon for the year 1863.
    A replication was filed and proofs taken; and on the hearing the Court dismissed the bill. The complainant appeals to this Court.

      H. 3. Harmon, for complainant.

      A. Russell, for defendant.
   Cooley, J.

The bill in this case was filed to quiet the complainant’s title to a certain village lot in Howell, which he had purchased in 1861, at Sheriff’s sale, on an execution against Samuel S. Hunt. Hunt’s title, it appears, was derived through John G. Peterson, who, on March 22, 1842, gave a deed of the lot to Wellington A. Glover. Glover immediately took possession under his deed, claiming title, and died in the occupancy of the lot the next year, and it was sold at probate sale by his administrator to Hezekiah Gates. From Gates to complainant there were a number of intermediate conveyances, and it appears that the grantee in each of them was in possession, either in person or by tenants. This showing would appear, therefore, to make out a good prima facie title in complainant, by possession, without attempting to trace the title back of Peterson, which he made no effort to do. The defendant, however, claims that the title is defective.

1. Because to several of the deeds the certificate of acknowledgment, so far as the wife of the grantor is concerned, is not in conformity to the statute, and consequently the deed was not entitled to record, and could not be proved by the record, as was done in the present case.

We have looked into these records, and find that in every case except one, the acknowledgment is sufficient as to the grantor.. If defective as to the wife, the deed nevertheless passes the title subject to the contingent right of dower, and was properly recorded as the deed of the husband. — Hall v. Redson, 10 Mich., 21. — The exceptional case is a deed given by the widow of Glover after a second marriage, by way of release of her dower right. It is immaterial to the present case whether that deed is valid or not; the complainant’s title will not be affected by its invaldity, except to the extent of the right which it assumed the grantor to possess; and that, — the dower not appearing to have been assigned, — was a mere right in action and nothing more. — Cox v. Jagger, 2 Cow., 651; Shield v. Batts, 5 J. J. Marsh, 12; Stewart v. Chadwick, 8 Iowa, 463.

2. The second objection made to complainant’s title is, that, although he shows an unbroken chain of conveyances extending back more than twenty years, he does not show continuous possession under them, and consequently cannot claim title by adverse possession.

This objection is based upon the facts, that on two or three occasions there were brief periods when the premises were not occupied at all, and that, at other times, there were persons in possession who are not distinctly shown to have occupied under any of the parties in complainant’s chain of title.

We attach no importance to the breaks- in the possession. The evidence -would, indicate that they were only brief intervals between the departure of one tenant and the entrance of another; not at all indicating an intention on the part of the claimant to abandon his right. At no time were the premises vacant for any considerable period, and the evidence shows that in every year since 1842, some one under whom the complainant claims has' assumed to be the owner, and has exercised public and notorious acts of ownership. We ‘cannot, therefore, find that the possession once acquired was ever abandoned, since the evidence all tends to the opposite conclusion. And on this point, the evidence given by the complainant that the land was continuously assessed on the township roll as resident lands, and the taxes paid by some one in complainant’s chain of title, was not only admissible but very significant.

The objection that it does not distinctly appear, in the case of some of the occupants, that they derived possession from parties under whom complainant claims, has more plausibility, but is nevertheless untenable. In every instance it appears that the occupant was in as tenant merely, and it is but a just presumption that he was in under the party claiming title. The evidence satisfies us that such was the fact.

3. A third objection to complainant’s claim is, that for a time the land was occupied by one Sliter, who actually claimed adversely to those in complainant’s chain of title.

This objection is based on Sliter’s testimony, who swears that- he bought the land by contract, of one Yanderhoof, who is one of the parties through whom complainant claims, and that he paid for it, but never received a deed, though he occupied it for a year or so. This evidence is not very clear or very satisfactory, and no reason is given why, if it was true, the witness did not demand and obtain, a conveyance. But assuming it to be true, it is obvious that Sliter, while in possession under his contract of purchase was not claiming adversely to, but under Yanderhoof, and in recognition of his title, Sliter while he remained in possession, insisting upon his purchase, might have made good his equities, if he had any, against a purchaser from Vanderhoof, not because his possession was adverse, but because it was notice that he made claim to some right, and the purchaser would have been bound to ascertain the extent of that claim; but when he surrendered the possession he had held under Vanderhoof, it not only ceased to be constructive notice of equities in himself, but the proof of it would tend to support the Peterson title, under which he had claimed such right as he had.

Some objections were made by defendant to the proof given to establish some of the tenancies. The tenants held under written leases, but the leases were not produced, and the complainant was allowed to prove the tenancies by parol. There is no legal objection whatever to such evidence. No inquiry was made as to the contents of the leases, and it was not necessary to produce them in order to establish either the fact of occupancy, or the parties to the letting.

We are of opinion, therefore, that the complainant made out a prima facie title. It was not essential that he should show a title which would be perfect against all the world; if apparently good against the defendant, that would be sufficient. — Hall v. Kellogg, 16 Mich., 135.

The defendant, however, did not rely exclusively on the supposed defects in the title of the complainant, but set up title in himself, derived from three distinct sources.

1. A deed from Flavius J. B. Crane, who appears to have owned the lot in 1835.

%. A deed from the Auditor General of the State, given on a sale of the lot for delinquent State, County and Township taxes of 1861.

3. A deed from the village marshal, given on a sale of the lot for village taxes of 1863.

The first deed is a quit claim given for a nominal consideration in 1865, and is ineffectual, because Crane’s title was apparently barred at that time by the statute of limitations.

The second is also ineffectual, inasmuch as it is shown that for the year 1861 the lot in question was twice assessed and the taxes once paid.

The third, we think, is also ineffectual. The charter of Howell makes a deed given on a sale made for village taxes prima facie evidence of the regularity of the previous proceedings, but it gives very imperfect directions as to what those proceedings shall be. To supply its deficiencies the village Common Council have adopted ordinances, one of which provides that the village assessment roll “ shall be made out and contain the same requisites, as near as may be, as the township assessment rolls.” Now one of the requisites in the case of thé township assessment rolls is that resident and non-resident real estate shall be separately assessed; and there are substantial reasons for this requirement, inasmuch as the taxes upon the first may be collected by levy and distress of goods and chattels, or by personal action, and it is the duty of the collector to make an effort at such collection before he can lawfully make return. The law has therefore provided the means by which the resident owner will be notified of the taxes claimed from him, and it would operate as a fraud upon him if a parcel of real estate in his possession, could be lawfully omitted from the list of property assessed to him, and taxed on another part of the roll where, if the law is obeyed, he knows it cannot be placed, and where consequently he would not be likely to look for it. It has several times been held in other States, that where the statute required resident and non-resident property to be listed separately, the assessment of either in the wrong list was void.— Young v. Martin, 2 Yeates, 312 ; Burd v. Ramsay, 9 S. & R. 109 ; Rising v. Granger, 1 Mass., 48; Lunt v. Wormell, 19 Me., 100; Barker v. Hesseltine, 27 Me., 354 ; Messinger v. Germain, 1 Gil., 631.

Upon the whole record we think the complainant established his right to the decree prayed for, and that the decree of the Court below dismissing the bill should be reversed, and a decree entered in this Court in conformity to these views.

The other Justices concurred.


source: Caselaw Access Project

author: Christiancy, J.

license: Public Domain

text:
    Samuel M. Turner v. The City of Grand Rapids.

      Evidence: Irrelevant: Admission cured by subsequent rejection. Where an action on a contract is tried, by the Court -without a jury, the judgment will not be reversed for an error in admitting an item not within the contract, when it expressly appears that such item was rejected in making up the judgment.

      Evidence: Quantum Meruit. In a claim for extra work under a contract for building a culvert, evidence of the state of the weather and the lateness of the season, in connection with explicit directions to proceed with the work, is admissible to show its increased cost.

      Examination of witnesses; Objecting to evidence. When a preliminary question is put and objected to, and the question to which it is preliminary is Btated, and the evidence is rejected, it will be inferred that the ground of the rejection was the supposed inadmissibility of the main question.

      Cross-examination. A party examined as a witness to prove extra work in building a culvert of stone, instead of brick, as called for by the contract under which it was done, and whose testimony on his direct examination tended to show that the latter material was the most expensive, may be asked on his cross-examination whether he had not said, — the occasion being specified, — that the culvert was put in under his contract in lieu of brick, and at a much less expense. —Campan v. Dewey, 9 Mich., 881; Chandler v. Allison, 10 Mich., U60 : Dannv. Cudney,\18 Mich., 289: Thompson v. Richards, lh Mich., 172; Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich., 99, recognised and approved.

      Case made; Exceptions to rulings to be noted. In order to secure a review in this Court of a ruling In the Court below, alleged to be erroneous, an exception to the ruling is as necessary when the question comes up upon a case made, as when the record with a bill of exception attached, is brought into this Court by writ of error, and when the case furnishes no satisfactory presumption than an exception was taken, or intended, at the time, to be taken, a judgment will not be reversed for such ruling.

      Heard May 6.

      Decided May 10.

      Case made from the Recorder’s Court of Grand Rapids.
    This was an action of assumpsit brought in the Recorder’s Court for the city of Grand Rapids, by Samuel M. Turner, against the city of Grand Rapids. The plaintiff declared specially: “ For that whereas heretofore to wit, on the 16th day of January, A. D. 1869, at the city of Grand Rapids aforesaid, in consideration that said plaintiff at the special instance and request of the said defendants had before that time constructed a certain culvert under a certain highway called, and.known as Fifth street, in the city of Grand Rapids aforesaid, and furnished the materials therefor for the said defendants, they, the said defendants, undertook and then and there faithfully promised the said plaintiff to pay him so much money as he therefor reasonably deserved to have of the said defendants. And the said plaintiff avers that he therefore reasonably deserved to have of the said defendants the sum of six hundred dollars lawful money of the United States, to wit, at the city of Grand Rapids aforesaid, whereof the said defendants afterwards, to wit on the day and year last aforesaid then had notice.” The declaration also contained the common counts in assumpsit.

    The defendant pleaded the general issue and gave notice that on, “ the fourth day of May, A. D. 1868, said plaintiif entered into a contract with the defendant in which the said plaintiff, for and in consideration of certain covenants and agreements hereinafter to be mentioned, to be performed by this defendant, covenanted and agreed to and with this defendant to grade Fifth street in the said city of Grand Rapids, from Front street to Stocking street, furnish all the materials for the same, and construct therein all sluices, bridges, culverts, cross walks and sink holes, that were required by the plans and specifications and profiles of said work made by the City Surveyor, adopted by the Common Council,” &c., and that the cause of action set forth in the plaintiff’s declaration “was performed under said contract as modified by the parties in this respect, that a stone culvert was to be put in in lieu of the brick culvert,” and that the plaintiff did not perform his agreement.
    The case was tried before the Recorder without a jury; and he rendered a judgment for the plaintiff. It now comes before this Court upon a case made to review the ruling of the Court below upon the admission of evidence.

      H. IS. Thompson, for plaintiff.

      Q. H. White, for defendant.
   Christiancy, J.

This was an action of assumpsit upon a quantum meruit for constructing a certain stone culvert at the request of the defendant. The plaintiff had previously taken a written contract to build it of brick. But the defendant, by resolution of the Council, subsequently directed it to be constructed of stone; and the plaintiff’s claim was really for extra work and expenses, beyond what it would have cost if built of brick under the contract.

The case was tried in the Recorder’s Court, before the Recorder, without a jury, and the plaintiff obtained judgment for $226.90. It is brought here upon a case made, setting forth the record, the evidence, the rulings of the Court 'and a full narration of the proceedings, for our decision upon the questions of law involved.

The main object for which the case was made and brought here, as stated by the counsel for the city, was to obtain our decision upon the question, whether, under the charter (Laws of 1857, p. 298 §§ 1 and 2, p. 808, §§ 15 and 16, p. 292, §§ 8 and 11, and laws of 1859, p. 211, §§ 8 and 11), a claimant can sustain such an action against the city, before presenting to the Common Council his account, setting forth the items of his demand in detail, verified by affidavit.

But as it appears beyond dispute by this record, that the plaintiff did, before bringing his suit, present such an account, verified by affidavit, to the proper committee of the Council, and that the Council did act upon the whole subject, covered by this claim, adopting the estimate of their own committee appointed to settle with the plaintiff, it is quite clear, as we intimated upon the argument, that this question is not involved.

We proceed, therefore, to notice such -other errors assigned upon the rulings of the Recorder, as the counsel for the defendant relied upon, on the argument and as are properly involved in the case.

1. If there was any error in admitting the evidence of the plaintiff to show that he had built the culvert eighty-two feet long at the request of the committee on streets, when by his contract, he was to follow the direction of the City Surveyor, who only required it to be eighty feet, that error was subsequently cured, as the Court expressly rejected his claim for the two feet in excess, and allowed him for the eighty feet only.

2. There was no error in allowing the plaintiff to show that the cost of building the culvert was greater, owing to the state of the weather and the lateness of the season, in connection with the substitution of stone for brick, and that the reason he proceeded at that time instead of waiting for better weather, was that the City Surveyor directed him to proceed at once.

But a more serious question arises upon the rejection by the Court, of a question put by the defendant to the plaintiff on his cross-examination.

The plaintiff having testified, on his direct examination upon the whole subject of the contract to construct the culvert of brick, the change made by the Council requiring it to be of stone, the relative cost of the two modes, and the actual cost of constructing it of stone; and his testimony clearly tending to show that it had cost him more to build it of the latter material than it would of the former, was, upon the cross-examination, asked if he had had a conversation with Alderman Ives in reference to this contract; and he having answered in the affirmative, and that that conversation was “right away after the culvert was built, probably about the first December 1868,” the record proceeds to state “counsel for the defendant, on cross-examination, asked said witness as follows: ‘Previous to the conversation referred to with Ives, had you not asked the Common Council to appoint a committee to settle with you for putting in this culvert and grading the street?’ Defendant’s counsel stated that the question is preliminary to the question that he shall ask the witness, which is, if he did not, in that conversation, say to Alderman Ives that the culvert was put in under his contract with the city, in lieu of the brick culvert and at a much less expense. To which question plaintiff’s counsel objected that it was not proper cross examination, which ■ objection said Court sustained.”

From this it is fair to infer that the preliminary question actually put and rejected, was rejected on the ground of the supposed inadmissibility of the main question to which it was stated to be preliminary, viz: whether in that conversation, the plaintiff did not say the culvert was put in under his contract in lieu of the brick culvert, and at much less expense?

The rejection of this question was so clearly erroneous as to require little comment. The cost of the construction and that it exceeded the cost of a brick culvert called for by the contract, constituted the very essence of the plaintiff’s case. His own testimony in chief had tended to show that it cost more than if built of brick. II he did state to Alderman Ives that the expense of constructing it of stone was less, this statement would have tended to disprove what his direct testimony tended to prove; and the question was therefore clearly admissible on cross-examination, under the repeated decisions of this Court. See Chandler v. Allison, 10 Mich., 460 ; Dann v. Cudney, 13 id. 239 ; Thompson v. Richards, 14 id. 172 ; Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 id. 99; and see Campau v. Dewey, 9 id. 381, where the rule of cross-examination, as applied in People v. Horton, 1 Mich. 67, was first brought in question in this Court and which has since been overruled by all the other cases above cited.

The misapprehension which seems to have existed in some portions of the state in reference to the authority of the rule of cross-examination, as applied in People v. Horton, seems to have arisen from the fact, that one member of this Court, while expressing his concurrence in the opinion of my brother Campbell in Chandler v. Allison, repudiating the rule as applied in People v. Horton, cited, among others, that very case, as if in support of the opinion in which he was concurring, when it was, in fact, directly in conflict with it. See 10 Mich 178.

But it does not necessarily follow that the judgment should be reversed for this error.

The case made does not show that any exception was taken to this ruling. And though I was at first inclined to think, that the question of law arising upon such a ruling, might be reviewed upon a case made, though no exception had in fact been taken, I am satisfied, upon reflection, that an exception is just as necessary to have been taken at the trial, when the question is to be reviewed in this form, as it would be if brought up upon bill of exceptions and writ of error.

The reason for requiring exceptions to be taken to rulings upon the trial, are, for the most part substantially the same in both cases. Parties frequently offer evidence or make objections on the trial, upon grounds, upon the correctness of which they are in doubt, and with the intention of acquiescing in the decision of the Judge. And when no exception is taken it is but natural for the Court and the opposite party to conclude, that the party against whom the ruling is made intends to acquiesce. The attention of the Judge is not, therefore, so strongly turned to the question, and he is less likely, to reconsider it or hear further argument upon it, than he would be if an exception was taken. And the adverse party, if an exception be taken, has the option of waiving his offer or his objection, rather than to hazard the delay and expense of having the case reviewed in an appellate court. — See 2 Cow. & Hill’s notes Phil. Ev. note 545 and cases cited; Ligget v. Bank of Penn., 7 S. & R., 218; Lanuse v. Barker, 10 Johns, 312 ; Givens v. Bradley, 3 Bibb. 192; Marquand v. Webb, 16 Johns., 89; Thomas v. Tanner, 6 T. B. Monroe 52; Woods v. Kennedy, 5 ib. 177-8.

In the case of a bill of exceptions regularly signed, though it does not appear expressly by the bill that an exception was taken, the Court will sometimes properly presume that it was regularly taken, or the Judge would not have signed the bill. — Graham’s Pr., 876; McBride v. Cicotte, 4 Mich., 478. — This, however, is upon the theory that the exception was in fact taken, which is always held to be necessary.

But the office of a bill of exceptions is only to present certain specific points raised only by exceptions, and properly drawn, sets forth only so much of the evidence as bears upon the particular points. It is not a narration of all the evidence and proceedings' on the trial. But the case, in the present instance, is apparently a complete narrative of all the evidence and all the proceedings which took place on the trial, material and immaterial; and no inference can therefore properly be drawn from the, signing of the case by the Judge, that any exception is taken which is not stated; especially, as this is not the only ruling of the Court against the defendants, to which he does not appear to have excepted, while he does appear to have excepted to several other rulings. The defendant may, for good reasons of his own, have deliberately determined to acquiesce, either because doubtful of the answer the witness would have given, or knowing that he could prove by Alderman Ives (who was subsequently examined for both parties) what the conversation really was, (and the same facts thus elicited from him would operate as an admission by the plaintiff), or because the defendant had admitted, as was subsequently shown in the cause by the records of the Council, that the cost of the stone culvert was more than it would have been if constructed of brick, or for some other reason, which, to the counsel, was at the time satisfactory, for omitting to except. And, judging from the special notice of recoupment set up by the defendant, and the general course of the examination on the trial, there is much reason to infer that the trial proceeded on the idea entertained by both sides, that evidence as to the comparative cost of the two modes of construction of the culvert, in some way pertained rather to the matter of defense set up by way of recoupment, than to the case which the plaintiff was bound to establish.

At all events, we think the case, as presented, furnishes no satisfactory presumption that any exception was taken, or intended at the time to be taken, to the ruling in question ; and that we cannot, therefore, reverse the judgment for this erroneous ruling.

A case might perhaps be so made as to furnish the same presumption of an exception taken, as may arise from the signing of a bill of exceptions; or a bill exceptions may be so drawn as to afford no such presumption.

We do not, of course, intend to deny that it is competent to have an understanding on the trial between the counsel of the respective parties and the Court, that for the purpose of review, all rulings in the progress of the trial shall be considered as excepted to, though no exceptions be, in fact, made at the time.

The judgment should be affirmed with costs.

The other Justices concurred.


author: Cooley, J.

text:
    Ralph C. Smith v. William Humphrey, Auditor General et al.

      Statutes; Operate prospectively : Title; Tax Law of 1869. A law will be construed to have a prospective operation only, unless tlie intent of the Legislature to the contrary plainly appears. In cases of doubt the title of the act may be resorted to in aid of its interpretation.
    The rate of interest — thirty per cent — chargeable upon taxes remaining unpaid on the first day of June next after assessment, as provided by act No. 369 of the laws of 1869, does not apply to taxes levied upon lands assessed before the passage of that act. Clark v. Ball, 19 Mich., 856.

      Equity: Party seeking, must do; Decree. An absolute decree perpetually enjoining a sale for unpaid taxes, because of a demand of interest by the proper authorities at a rate not allowed by law the legal rate having been tendered and refused, — is not sustainable. The payment of interest, at the lawful rate, may be required upon the principle that a party seeking equity must do equity; and only on such payment, computed to the day of the tender, ought the sale to be perpetually enjoined. Conway v Waverly, 15 Mich., 851, Palmer v Napoleon, 16 Mich., 176.

      Heard May 7.

      Decided May 10.

    Appeal in Chancery from Wayne Circuit.
    The bill in this cause was filed in the Circuit Court for the county of Wayne in Chancery, by Ralph 0. Smith, against William Humphrey, Auditor General, and Paul Gies, Treasurer of Wayne County, and states that he is the owner of a parcel of land, situated in said county, on which in the year 1868 there was assessed as a tax upon said premises, the sum of $21,04, for school, township, county and state taxes; that said taxes not being paid, the premises were returned as delinquent therefor to the treasurer of said county, and by him to the Auditor General of said State; that said taxes remaining unpaid, the treasurer of said county, under the direction of said Auditor General, had advertised and given notice that said premises would be sold at the annual tax sales to be held at Detroit, in said County on the first Monday of October, 1869; that by virtue'of the laws of this State at the time of the assessment of said tax and return of said premises as aforesaid, complainant was entitled to .pay said tax by paying the amount thereof, with interest calculated thereon from the first day of February, 1869, at the rate of fifteen per cent, per annum, and office charges, to the treasurer of said county, or to the State Treasurer, upon the certificate of the Auditor General, at any time prior to the first day of September, 1869.
    The complainant further states that on the 16th day of August, 1869, he called upon the treasurer of said county at his office in Detroit, to pay said tax upon said land, and then and there offered to pay, and tendered to said County Treasurer, in lawful money of the United States, the sum of twenty-five dollars, being the full amount of said tax upon said lands, with interest thereon at the rate of fifteen per cent, per annum from the first day of February, 1869, to the day of such tender, and the legal office charges connected with said tax and premises, which amount he is still ready and willing, and offers to pay for the purpose of discharging said tax. But said County Treasurer refused to accept such amount so tendered in payment of said tax and said Auditor General and County Treasurer now demand and seek to collect the amount of said tax and interest at the rate of thirty per cent, per annum from the first day of February, 1869, together with the office charges and expenses of sale aforesaid, which amount said Auditor General and County Treasurer claim and insist is a lien upon said land, for the payment of which, said land is subject to sale under the tax laws of this State. And for the purpose of enforcing the payment of such demand, said Auditor General has advertised said land for sale by said County Treasurer, on the first Monday of October, 1869.
    The bill provided for an injunction from selling said lands for or on account of said tax, and that said tax, together with the amount charged against said lands by said defendants for interest, office charges, and expenses of sale be declared to be set aside and cancelled, and said lands to be free from all lien on account thereof. .
    The defendants demurred to the bill, and the cause was heard in the Court below upon the demurrer.
    The Court overruled the demurrer and decreed that the tax be void upon the lands described and set forth in the bill, and that an injunction issue restraining the said defendants from selling or offering the lands for sale.
    From this decree the defendants appeal to this Court.

      F. H. Canfield, for Complainant.
    I. — The law of 1869 was intended to act prospectively, and not retrospectively; and therefore has no application to taxes assessed and returned previous to its enactment.
    The act in question does not amend any previous law, but is an entirely new statute, which, both in its title and context indicates an intention on the part of the Legislature, to establish a rule for “the assessment, collection and return of taxes for the future,” is entitled, “ An act to provide for the uniform assessment ,of property, and for the collection and return of taxes thereon.” These words are entirely unambiguous, and they preclude the idea that the law was intended to have any retroactive effect whatever. The object of the law, as required by the Constitution, is expressed in the title, and all its sections must be construed so as to carry out that object and none other. The act, as the title indicates, provides for the assessment of taxes for the future; it also provides the means of enforcing the collection of taxes so assessed, and none other. These observations apply to the provisions of the act generally, but particularly to .section 70, now under consideration. Sections 67, 68 and 69 set forth the manner in which delinquent lands shall be returned to the Auditor General, and evidently relate to future returns, because at the time' the law took effect there were no delinquent lands in the state which had not already been returned. There was, therefore no subject upon which these sections could operate, until the assessment and return for the year 1869 should be made. And section 70 in express terms relates only to lands returned under those sections. — Laws of 1869, p. 860. Clark v. Hall, 19

      Mich., 356, decided at the last October term of this Court. This decision though involving more especially §164, is also applicable to §70, now under consideration. The language of the Court in regard to the retrospective operations of the act, applies to the entire act, and pointedly sustains the position which we here assume. — Price v. Mott, 52 Pa., 315 ; Harrison v. Metz; 17 Mich., 377. Cooley’s Const. Lim., 362-370 ; 18 Johns., 139 ; 49 Barb. 196 ; 15 Wis. 548 ; 18 Mo; 599; Sedgwick’s Const. L., 599 ; Blackwell on Tax Titles 480 ; Brown v. Veasie, 25 Maine 359; 5 La. 380.

    II. — A construction different from the one for which we contend, would render the law unconstitutional.
    1. If the law relates to the collection of taxes assessed prior to its passage, then it embraces more than one object, and one which is not expressed in its title, and therefore contravenes Sec. 20 of Art. 4 of the Constitution. The construction of the title of the act has already been dwelt upon, and the opinion of this Court relating thereto cited. And we submit that the providing for a penalty upon delinquent taxes assessed in the past, can have no relation to, but is a matter wholly distinct in its nature from regulating “the assessment, collections, and return of taxes for the future.”
    2. By the express terms of the statute under which the taxes on the land in question were assessed and returned, the complainant had the right to pay the tax, by paying the amount thereof with interest at the rate of 15 per cent., and the office charges specified in that statute, at any time before September 1st, 1869. We insist that this right of the tax-payer cannot be abrogated or interfered with by any subsequent act of the Legislature. The following cases upon the right of the Legislature to interfere with the right of redemption from tax sales, are applicable to this point:— Dikeman v. Dikeman, 11 Paige, 484; Bronson v. Howe, 13 Wis., 341; Adams v. Beale, 19 Iowa, 61.

      3. The construction of the act contended for by defendants, contravenes the constitutional provision in respect to uniformity of taxation. — Scammon v. Chicago, 44 Ill., 269; re-affirmed in Clayton v. Chicago, 44 Ill., 280.

    III. — The rights of the State and tax-payer as they existed under the law of 1853, are not affected by the repealing section of the act of 1869. Such rights are expressly re-reserved by the proviso of said section. See § 167, Laws of 1869, p. 880.

    This section repeals the law of 1853, with its amendments and all other general tax laws of the State, previously existing: “Provided, that the repeal of acts mentioned in this act shall not effect any act done, sale made, or right acquired or established previous to the time such repeal shall talce effect.” It has already been argued that under the law of ’53 the complainant had acquired the right to discharge the lien of tax upon his lands in the manner and by the means provided by that law. Equally clear is it that under that law the State had acquired the right to enforce its lien for the tax by legal proceedings against the land. These rights are recognized and excepted from the effect of the repeal of the law of ’53, by the proviso quoted. Not only does it appear from this proviso, affirmatively, that these rights and the mode of enforcing them are still to be regulated by the law under which they were acquired, but the import of the entire section negates the idea that the act ’69 was intended to supersede previous laws in that respect. — Bartruff v. Reiney, 15 Iowa, 257; Adams v. Beale, 19 Iowa, 61; Penn v. Clemans, 19 Iowa, 372; Meyers v. Copeland, 20 Iowa, 22,— where the same statute was again under consideration and the decision in Adams v. Beale affirmed.

      Bwight May, Attorney General, and Geo. V. N. Lothrop, for defendants.
    I. What was the effect of the tax act of April 6th, 1869, upon the collection of taxes then delinquent ?

      The complainant contends that it did not apply to them at all. On the other hand, we claim that it took up existing taxes where it found them, and furnished the machinery for all subsequent proceedings for collection and sale. This is the issue.
    In Clark v. Hall, the Court held that the act was prospective and not retrospective. The question arose on an Auditor-General’s tax deed, made on a tax sale of 1859, to which it was claimed the provisions of sec. 164 applied. The Court held that this section did not apply to such a deed at all. But we do not understand it at all as sustaining the complainant’s position. On the most satisfactory grounds, it holds the operation of the act to be prospective; or, that it does not “relate back” to antecedent acts and change their character.
    Of course retrospective acts are not, for that reason necessarily invalid; yet, retrospective effect will not be given to a law, except on the clearest expression of such intention. Now, no retrospective effect is claimed for this law. No such view is necessary to make it apply, for some purposes, to taxes previously assessed, but not yet collected. And in this respect the legislative intention is neither doubtful or obscure.
    What we claim is this: That this law was designed to take up and bring within its operation the tax system of the State, just where that was found, at the date of its taking effect as law. It did not reach backwards, and operate on what had been done, but it took up the tax business and applied its own machinery to all operations from that moment. As to taxes already assessed, it took them up and furnished the machinery for their collection, sale and redemption. As to future taxes, it furnished all the machinery, from assessment forward. All this is clearly prospective. By the previous law delinquent taxes could be paid till sale by paying 15 per cent, interest from the first day of February next after they were assessed.— Comp. L. § 851. — The act of 1869 shortened the term of this privilege to the first of June, and if not paid till after fhat date^ imposed interest at the rate of 30 per cent, from said first first day of February. — Laws 1869, p. 850, § 70.

    Now, that the Legislature intend this to apply to delinquent taxes already returned, as well as those thereafter assessed, is, we think, incontrovertible. In some cases the reference is in express terms to taxes assessed before the law went into operation: in others, the application is clear. See among others, sec. 75; the provisions for sale of taxes, commencing with sec. 77; sec. 101, sec. 105, sec. 117.
    Besides this, by sec. 167 the whole previously existing tax system is repealed. There remained therefore, nothing of the old machinery for the collection of existing taxes, and unless the act of 1869 supplied new machinery, none existed in the State. Not a dollar of the delinquent taxes; could be collected, not a foot of land sold, not a tax deed made. That the Legislature intended this, is out of the question; that it is a casus omissus is not to be assumed; and necessarily follows that the intent of the Legislature was that the needful machinery should be supplied by the act of 1869.
   Cooley, J.

The purpose of the bill in this cause was to restrain the sale of certain lands belonging to complainant for the state, county and township taxes assessed thereon for the year 1868. The controversy relates to the interest which was lawfully demandable upon these taxes.

The complainant insists that he is bound to pay at the rate of 15 per cent, only; that being the rate fixed by the law which was in force at the time the taxes were assessed and returned. The Auditor General, on the other hand, is of the opinion that the case comes within the provisions of the new tax law of 1869, which increased to 30 per cent, the rate of interest on delinquent taxes not paid before the first day of June next after their assessment, and which took effect before any offer was made to pay the taxes in question. The complainant, after the first day of June 1869, tendered payment of the amount of the taxes, with fifteen per cent, interest from the time fixed by law for their return, and this tender being refused, he filed this bill to perpetually enjoin a sale of the lauds, and obtained a decree to that effect in the Court below. An appeal is now taken from that decree.

We do not understand it to be questioned that it was competent for the Legislature to make the general provisions of the act of 1869 apply to the taxes previously assessed and returned, so far as the subsequent proceedings to be taken by the State were concerned, if they had seen fit to do so. The question is whether they have expressed an intention to that effect. Unless that intention distinctly appears, the familiar rule of construction which presumes that legislation is designed to have prospective operation only, will require the Court to hold that the legislative purpose was that this act should apply only to the taxes subsequently assessed. For although to apply it to taxes previously levied would not, so far as the course of official proceeding for the enforcement thereof is concerned, be strictly retrospective in the proper sense of that term, yet so far as it increased penalties, or in any manner affected the tax payer’s rights or interest as they depended upon previous acts or delinquencies, it would be plainly so, and the purpose of the legislation to give it that operation is' not to be presumed, where the words are ambiguous or reasonably susceptible of a different construction.

In Clark v. Hall, 19 Mich., 356, we had occasion to say of the act in question, that we discovered it in no evidence that the intention of the Legislature was to give it a retrospective effect; that on the contrary its design was to regulate the assessment, collection' and return of taxes for the future, and the title as well as the body of the act aptly indicated that purpose. We have examined the act further with the aid of the learned counsel who argued the present case, and discovered no reason for changing the opinion previously expressed. The title is “An act to provide for a uniform assessment of property and for the collection and return of taxes thereon.” As the Constitution requires the object of every act to be expressed in the title, it is reasonable to presume that the title has been chosen with some care, with the purpose to express with sufficient comprehension and accuracy the precise object had in view in the enactment. And although we do not think the title adopted ought to be criticised very closely, or applied narrowly when the general purpose of the act is fairly indicated, yet when the design of the Legislature in any of its provisions, is at all in doubt, the title will often prove not only the most satisfactory source of information on that subject, but may sometimes supply us with a solution which will be altogether conclusive.

If we examine this title, it will be very apparent that the only “assessment of property” it can refer to, is that which is to be made after it tallies effect. It proposes to “provide for a uniform assessment of property; ” and that means, to point out the steps that shall be taken, and the officers who shall take them, in order to make such an assessment. It looks to the future only; and it is obvious that it could do nothing else; for it could not provide for the making of an assessment which was already completed. But it also proposes to provide for “the collection and return of taxes thereon.” Now the word “thereon” as here employed clearly refers for its antecedent to the “ assessment of property ” which the act is to provide for; and the apparent purpose of the Legislature seems to be, so far as we can infer it from this title, to provide a system under which assessments can be uniformly made thereafter, and taxes levied and collected upon such assessments.

Looking into the act itself we find that it proceeds to specify what property shall be subjected to taxation, and what exempt; at what time and how the assessment shall be made; the manner of equalizing and-correcting the roll; the apportionment of the taxes and the spreading of the same upon the tax roll; the delivery of the roll to the collector ; the proceedings to be taken by him in the collection, and what shall be done in case of his failure; how the time for collection may be extended, and how the taxes which remain uncollected shall be returned. These are successive steps in one proceeding, of which the assessment is the first and the foundation of all the rest; and before we reach the seventieth section we discover nothing from which any inference can fairly be drawn that it was designed the statute should have any retrospective effect, or should apply^ even as to subsequent proceedings, to taxes levied before it went into operation. Indeed very few of its provisions could possibly have application to previous levies.

The seventieth section is as follows: Any person may pay the taxes, or any one of the several taxes on any parcel of land returned as aforesaid, or on any undivided share thereof, with interest calculated thereon from the first day of February next after the same were assessed, at the rate of fifteen per cent, per annum, and the office charges, and four per cent, as a collection fee, to the treasurer of the of the county in which the lands are situated, at any time before they are sold for taxes, or to the State Treasurer on the certificate of the Auditor General, at any time before the twentieth day of September next preceding the time appointed for such sale: Provided, that on all taxes remaining unpaid on the first day of June next after the same were assessed, interest shall be computed at the rate of thirty per cent, per annum from the said first day of February.”

Now the lands here referred to upon which the taxes may be increased by the addition of thirty per cent, interest are those “returned as aforesaid;” and we have already seen that those to be so returned are the lands upon which assessments have been made under this act. There is consequently no room for a construction which would make the thirty per cent, demandable upon taxes levied under previous laws, unless we pass by the plain and obvious meaning of the words here employed, and put upon them an interpretation which is not only forced and unnatural, but which finds no support in the title of the act.

We do not find ourselves called upon to look further into this act in order to determine whether other provisions may not have a retrospective operation. It is quite possible that as to some of them the purpose that they shall so operate may be very apparent. We did not intimate in the case of Clark v. Hall, nor do we say now, that none of the provisions of this act can be construed to apply to taxes previously assessed and returned, or that there would be any legal objection to so applying them. No such question is before us, and w'e confine our decision to the precise point here involved. We are of the opinion that the complainant had the right to discharge his taxes on payment of the amount thereof with fifteen per cent, interest; but we have nothing to say as to what would be the rights of the State in case of his neglect to make payment, or under what law any subsequent proceeding should be had.

It was urged on behalf of the defendants that if the view we have expressed be correct, the taxes assessed before the act of 1869 and then remaining uncollected, could not have been enforced, inasmuch as the last section of the act repealed all the previous tax laws. We think, however, that there is no such difficulty in the case as seems to be supposed. The repealing clause expressly provided that the repeal of the previous acts should not affect "any act done, sale made, or right acquired or established” previous to the time when the act took effect. Now there had been “acts done” under which the State had unquestionably “acquired” a right to taxes then remaining unpaid, and to the interest or penalty payable thereon; and we see no reason to doubt that such right yyas protected and preserved by this saving clause. We are no more at liberty to suppose the State intended to surrender its own rights by the repeal of the previous laws, than that the purpose was to deprive individuals of rights previously vested. The taxes previously levied remained a lien upon the lands, and a sale might lawfully be made for their enforcement.

But although we think the Circuit Judge was right in his construction of the act of 1869, we do not understand the principle on which he enjoined the sale of the lands, without making it a condition that the complainant should pay the sum which was lawfully demandable, and which had been previously tendered. He who comes into equity for relief must be willing to do equity; and there can be no ground upon which, in enjoining an excessive claim, the complainant can be discharged from that which is justly due. — Story Kq. Juris. § e, § 707; 1 Spence Kq. Juris. J22. — This is the rule even as between individuals; and there is at least equal reason for applying it in behalf of the State when it is seeking to collect its revenues. We have had occasion to apply it heretofore in suits to enjoin taxes.— Conway v. Waverley, 15 Mich., 257; Palmer v. Napoleon, 16 Mich., 176. See also Hersey v. Supervisors of Milwaukee, 16 Wis., 185 ; Bond v. Kenosha, 17 Wis., 288.

The decree of the Court below must be so modified as to perpetually enjoin a sale on the payment to the Auditor General within thirty days of the taxes assessed, including interest at the rate of fifteen per cent, per annum from the first day of February, 1869, to the time when the tender was made, together with the office charges. The complainant will be entitled to costs of the Court below, but neither party will recover costs in this Court.

The other Justices concurred.


author: Campbell, Ch. J.

text:
    Cecil D. Grimes and Francis Coleman v. Charles D. Van Vechten and Morgan L. Fitch.

      JSviden.ee: Sale of chattels: Delivery: Acceptance ly carrier. Where the delivery to a carrier is merely in pursuance of the same verbal contract, under which the goods were purchased; and the carrier has no independent and separate authority to act for the purchaser, his reception of the goods can only be valid because the contract itself is valid; and therefore, such au acceptance is not evidence of an original valid contract.

      Heard, May 7.

      Decided May 10.

    Error to Kalamazoo Circuit.
    This was au action brought in the Circuit Court for the County of Kalamazoo, by Charles D. Van Vechten and Morgan L. Fitch, against Cecil D. Grimes and Francis Coleman, in which the plaintiffs declared on the common counts in assumpsit.

    The defendants pleaded the general issue and gave notice in defense “that on or about the fourth day of April, A. D. 1867, the said defendants at Mattawan, purchased of the said plaintiffs, a car load of 2d clear lumber at $35 per thousand, to be delivered by way of the Michigan Central Railroad to the defendants at Kalamazoo. That the said purchase was made at the same time and place with the purchase of the lumber mentioned in the plaintiff’s bill of particulars in this cause, and constituted with it one and the same transaction. That the said plaintiffs, in pretended compliance with the first named purchase, sent and delivered to the said defendants, a car load of lumber which the said defendants received and paid for at the price above specified for 2d clear lumber, the same, at the time of such reception and payment, being not yet unloaded from the car and not open to the inspection of the defendants. That such reception and payment were made upon the representations of the said plaintiffs that the same was 2d clear lumber, and the agreement of the said plaintiffs that if the same was not 2d clear lumber, the difference in value should be allowed to the defendants to be applied upon the price of the lumber, for which the plaintiffs claim to recover in this suit. Whereas in fact, the said car load of lumber was not 2d clear lumber, but was on the contrary as to a large part of it, common lumber, of much less value than 2d clear lumber, and was as to another large part of it worthless; whereby the defendants .sustained damages to wit: to the amount of two hundred dollars, which they will recoup against the plaintiffs in this action.”
    The cause was tried by a jury, who found for the plaintiffs; and the cause comes into this Court by writ of error for review of the charge of the Circuit Judge.

      Severens & Burrows, for plaintiffs in. error.

      Stuart <2 Edwards and G. V. N. Lothrop, for defendants in error.
   Campbell, Ch. J.

Defendants in error sued plaintiffs in error for the price of a car load of lumber. The defense was in substance that two car loads were included in the same original bargain, which was verbal. That when the first load arrived at Kalamazoo from Mattawan, where it was shipped, the purchasers refused to accept it, as not conforming in quality to the contract. That thereupon one of the vendors came to Kalamazoo, and on his assurance and promise that any deficiency should be made good in settling for the second car load, (which is the one in suit), the first car load was accepted and paid for.

There was considerable conflict in the testimony upon some material points. In charging the jury, the Court, among other things, charged them “that if the contract was that the first car load of lumber was purchased to be delivered on the car at Mattawan, and no time of payment was agreed upon otherwise, the pay for that car load was due and payable when the car was loaded, and it was the legal duty of the defendants to pay for the same then and there, and that the lumber became their property when so delivered.”

The effect of this charge was to rule out a substantial part of the defense, as founded upon no consideration. The verbal contract unquestionably contemplated the shipment from Mattawan, and, if the shipment passed the title and bound the parties, then so much of the agreement as was claimed to have been made in Kalamazoo in connection with the acceptance and payment, would become nugatory.

Plaintiffs in error claim that the first contract was void under the statute of frauds, being for more than fifty dollars worth of lumber, without earnest or delivery, and that therefore there was no binding agreement until the acceptance of the first car load. Defendants in error insist that a delivery to the carriers was as effectual as if made to the parties, and that the sale became complete, therefore, when the lumber was shipped.

Where a carrier has been employed by a vendee as his agent to receive goods for him, there is reason for holding his acts valid to bind his principal; and there will, perhaps, be no great difficulty in holding his acceptance effectual in cases where there is no reserved right of personal inspection or decision. But where the delivery to the carrier is merely in pursuance of the same verbal contract under which the goods were purchased, and the carrier has no independent and separate authority to act for the purchaser, his reception of the goods could only be valid because the contract itself was valid. And if the delivery and acceptance was the first transaction which gave force to the contract in the case before us, it is clear that it must have been a delivery to the party and to no one else.

It involves a sophism to hold that a void contract can furnish authority to a third person to ratify it. If it was good to create the agency, the agency was entirely unnecessary. The same principle was involved in Holland v. Hoyt, 14. Mich., 238, where it was held that a person who had not sufficient authority to bind his principal under the statute of frauds, by a contract for the sale of land, could not accomplish the same result by way of estoppel. The same power necessary for the one was necessary for the other.

And in Chamberlin v. Dow, 10 Mich. R., 319, it was held that a verbal contract by two persons jointly, to purchase articles within the statute, could not be made effectual against both by the subsequent ratification by one of them, having no authority independent of the verbal contract. The contract is wholly and not partially void.

The ruling was erroneous, and the judgment must be reversed. The remaining errors assigned are not very material, and we do not consider it necessary to discuss them, as the same points are not likely to arise on a new trial.

Judgment must be reversed, and a new trial granted.

The other Justices concurred.


author: Per Curiam.

text:
    The People v. Green Freeman.

      Becognizance: Statement of condition. It is not necessary that the condition of a . recognizance, taken by a Justice of the Peace for the appearance at any future day for further examination, of a person charged with an offense, should state that probable cause appears for holding to bail.

      Heard and decided May 12.

      Error to Oakland'Circuit.
    This was an action of debt brought in the Circuit Court for the County of Oakland, upon a recognizance taken by a Justice of the Peace, for the appearance at a future day for further examination of one John Tompkins, charged with larceny.
    On the trial the recognizance was offered in evidence, the condition of which was in the following words:
    “ The condition of this recognizance is such, that whereas the said John Tompkins has been and now is under arrest by warrant from my office, charged upon the complaint and oath of William Nott, with having, on the 6th day of August, A. D. 1869, at the township of Pontiac, in said county, feloniously stolen, taken and carried away, fifty-six bushels of white winter wheat, of the value of seventy-five dollars. Now, if the said John Tompkins shall personally be and appear before the said Justice, at my office, in the city of Pontiac, on the 11th day of September, A. D. 1869, at 9 o’clock in the forenoon of said day, for such further examination touching said complaint, and shall do and receive that which shall be then and there enjoined upon him by me, the said Justice, and shall not depart without leave, then this recognizance shall become void, otherwise of full force and virtue.”
    To the admission of which recognizance in evidence, counsel for defendant objected, for the reason: First — That it does not appear by said recognizance that the Justice determined that a criminal offense not cognizable by him had been committed. Second — That said recognizance does not show that the Court continued the examination from September 1st to September 11th. Third — That said recognizance is void on its face. The Circuit Judge sustained the objection and refused to admit the same to be read in evidence; to which the plaintiffs excepted. The jury found a verdict for the defendant, and judgment being entered on the yerdiet, the cause comes into this Court by writ of error.

      O. F. Wisner, for plaintiff in error.
    I. The recital in the recognizance that John Tompkins was under arrest, by warrant issued upon a complaint, under oath, and setting forth the offense for which he was complained of, sufficiently shows that the Justice determined that a criminal offense not cognizable by him had been committed. — Bailey v. State, 35 Mo., 168; State v. Williams, 17 Ark., 371; Adams v. Governor of Georgia, 22 Geo., 417 ; Champlain v. The People, 2 Comst., 82; Commonwealth v. Gordon, 15 Pick., 193 ; People v. Dennis, 4 Mich., 616; Mc-Farlan v. The People, 13 Ill., 9.

    II. The-second objection is untenable. It is not necessary that the recognizance should show that the Justice continued the examination. In taking the recognizance, conditioned for the appearance of the accused at some future day, the Justice is presumed to have continued the examination until that day.
    III. In considering the third objection, that the recognizance is yoid upon its face, we think it will be found upon examining the authorities that this objection is entirely without merit. The Justice had the power to take the recognizance.— Comp. Laws, § 5989. — The condition was to do an act, for the doing of which a recognizance might properly be taken, and the Justice had authority by law to act in cases of that general description. This is all that is necessary. — People v. Dennis, 4 Mich., 609; Daniels v. The People, 6 Mich., 381; People v. Kane, 4 Denio, 530; Champlain v. The People, 2 Comst., 83; Archer v. Com. 10 Grattan, 638; Com. v. Bail of Gordon, 15 Pick., 193; Com. v. Merriam, 7 Allen, 356 ; Adams v. The State, 22 Geo., 417; State v. Williams, 17 Ark., 371; Bailey v. State, 35 Mo., 168.

    It sufficiently appears from the tenor of the recognizance in this case at what court the party was bound to appear; and that the Magistrate before whom it was taken, was authorized to taken such recognizance. — Oomp. Laws, § 6008.

      W. B. Jaclcson, for defendant in error.
    The objections are based upon the proposition, that every recognizance is substantially defective, “unless it sufficiently appear from the tenor thereof, that the officer before whom it was taken, was authorized by law to require and take the same.” — Oomp. L. Oh. 191*, § 82.

    It therefore follows that the condition of every instrument of this kind must recite sufficient jurisdictional facts to show that the officer taking the recognizance was authorized by law to require and take the same. The facts necessary to give him jurisdiction must appear affirmatively, and cannot be presumed. — Wight v. Warner, 1 Doug., 384. It must ffirmatively appear, upon the face of the instrument, that there has been a prior adjudication by the proper magistrate that such an offense has been committed, and that there is probable cause to believe the prisoner guilty thereof.— Washburn v. The People, 10 Mich., 384. — Tested by this rule, the recognizance in this case is void upon its face.
    Again, it does not affirmatively appear, from the tenor of this instrument, that the Justice adjourned the examination in this cause, from September first to September the eleventh. This fact cannot be presumed. He was therefore not authorized by law to remand the prisoner unless bail be given. And if he was not authorized to remand the prisoner, he was not “authorized by law” to require and take the recognizance in this case. This is clearly “a case where a person is held to bail by the examining magistrate and forced to enter into a recognizance or stand copimitted.” — Daniels v. People, 6 Mich., 386.

    The rulé of construction which we have sought to apply to the recognizance in this case, is that furnished by Comp. L. Ch. 194, § 82. — This is a transcript of the statute of Mass. JR. 8. Mass. c. 185, § 80, and should be construed to require the cause of taking the recognizance to be set forth in it, as is required in that state. The condition of the recognizance itself, should recite so much of the cause of taking it, that it may appear that the magistrate had jurisdiction to take it.” — Bridge v. Ford, 4 Mass., 641; Com. v. Downey, 9 Mass., 520; Com. v. Daggett, 16 Mass., 447; Harrington v. Brown, 7 Pick., 232 ; State v. Smith, 2 Greenl., 62.

    There have been several cases in the state of New York, but in none of them was the recognizance taken before an officer of inferior, special and limited jurisdiction, except the case of The People v. Koeber, 7 Hill p. 39. — In this case the Court applied the same rule of construction to the proceedings of an officer of inferior, special • and limited jurisdiction, as that applied by our own Court in the case of Wight v. Warner, 1 Doug., 384; Clark v. Holmes, 1 Doug., 390 ; Chandler v. Nash., 5 Mich., 409. — But we do not deem the New York cases apposite to the one at bar, because the statutes of that state contain no provisions similar to §§ 10 and 82 of Ch. 194 of Comp. Laws. — The states of Maine, Wisconsin, Virginia and Michigan, give to the magistrate before whom the accused is brought, the power to require and take a recognizance for his appearance for further examination. — Rev. St’s of Maine, ch. 171,. § 9; same in Wis. ch. I45, § 8; Va., code of Va. ch. 204, § 8 ; Mich., Comp. L., ch. 194, § 10.

    There have been several cases in our own Courts, but in none of them was the recognizance taken by an officer of inferior, special and limited jurisdiction. — The People v. Rutan, 3 Mich. 42; The People v. Dennis, 4 Mich., 609; Daniels v. The People, 6 Mich., 381.

    In each of these cases “the jurisdiction of the Commissioner was invoked by the prisoner himself and not against him,” and it was therefore his voluntary act. In the case at bar, the prisoner was compelled to recognize or stand committed; and his recognizance was therefore a compulsory act.
   Per Curiam.

We think there was no force in the objections to the recognizance. Enough appears on it to show that a case was presented before the Justice in' which he had a right to hold a preliminary examination, and which he could adjourn; and as the condition was to appear at the adjourned day, it must be presumed the adjournment was regular. The objection that it does not appear there was probable cause for holding to bail, — if valid under any circumstances, —is inapplicable, for that could only be ascertained when the magistrate had concluded the examination.

Judgment should be reversed and a new trial granted.


text:
    Solomon Meyerfield and Henry Wolf v. Maurice R. Stettheimer et al.

      Practice in the Supreme Court: Damages for vexatious appeals. A case brought into this Court merely for delay is a proper subject for damages hy way of penalty.

      Heard and decided May 12.

    Error to Monroe Circuit.
    This was an action of asmmpsit brought in the Circuit 'Court for the County of Monroe, by Maurice R. Stettheimer and others against Solomon Meverñeld and Henry Wolf, in which the plaintiffs below recovered a judgment.
    The assignments of error were of a general character; or, so far as they were specific, they were not sustained by the facts appearing on the record.
    The plaintiffs in error did not appear.

      NevSborry Pond, & Brown appeared for the defendants in error,
    and insisted that the errors assigned were all frivolous; and, as it was evident that the writ of error was sued out for delay, asked damages.
   Per Curiam.

The plaintiff in error making default, and the case having been evidently taken up merely for delay, the Court in affirming the judgment allowed an additional sum, amounting to the rate of 3 per cent, per annum, for the period between the verdict and affirmance, by way of penalty for the vexatious appeal.


author: Graves, J.

text:
    The Great Western Railway of Canada v. W. Ward Wheeler.

      Notice * Shipping marks to indicate consignee. ■ The knowledge of the arbitrary mark of a consignee of goods by railroad, possessed by a former officer or agent of the railroad company, — such knowledge not having been acquired by any usage, custom or course of business of the company, — is not the knowledge of the company. And, it seems, that notice to an agent, on one or more occasions, that certain arbitrary marks indicate a certain ownership, will not affect the company with notice of such ownership, in any subsequent transaction, unless the agent actually remembers the previous notices, and has reason to believe that the marks still indicate the same ownership.

      Heard May 10.

      Decided May 13.

    Error to Wayne Circuit.
    This was an action on the case brought by W. Ward Wheeler, in the Circuit Court for the County of Wayne, against the Great Western Railway of Canada, for neglecting to deliver two casks of zinc, received by the railway company at Suspension Bridge to be conveyed to the plaintiff at Detroit. The plea was the general issue. The evidence on the trial showed that the goods were delivered to the company at Suspension Bridge, on the 12th of April, 1866, in two casks marked “ W. W. W., Detroit, Mich.”; that they arrived in Detroit on the 14th of April, and remained in the warehouse of the company until the 26th of April, when the warehouse was destroyed by fire, and the goods so much damaged as to be useless. It appeared, also, that the rate charged upon the goods for freight, included the cartage necessary to deliver them to the consignee in Detroit. The company claimed that they did not know who was intended by the initials “W. W. W.,” until after the fire, when the bill of lading was presented at their office by the consignee. The question, — whether the company knew or had the means of knowing who was intended by the mark on the goods, — was the principal issue of fact contested before the jury. On the request of the plaintiff the Circuit Judge charged the jury:
    1. That even if the defendants did not know that the marks “ W. W. W.” represented the plaintiff, unless the jury find that the goods were destroyed at the fire of the defendant’s depot, then the defendants have shown nothing to excuse their liability. 2. If the jury find that the defendants had frequency received, transported and delivered to plaintiff, before the shipment of the goods sued for, goods of the same nature and description, and marked in the same manner, it is evidence tending to show that the company’s agents knew that “ W. W. W.” was the shipping mark of plaintiff. To each of which the defendants excepted.
    The counsel for the said defendants then asked the Court to instruct the jury:
    “1. The defendants are not liable unless they knew that the goods were intended for the plaintiff. 2. The marks or letters on the packages are not sufficient evidence of themselves to charge them with such knowledge. 3. It is for the plaintiff to show that the defendants had this knowledge. 4. There is no evidence in the case sufficient to charge the defendants with this knowledge. 5. The books of the company are the most reliable evidence of the course of business of tbe company, and of the receipt' of goods, and the jury should so regard them in this case. 6. The plaintiff is bound to show that some of the officers or agents of the company, who were such when these goods arrived here, were chargeable with notice that they were intended for the plaintiff. It is ■ not enough to show that former officers or agents were chargeable with such notice. 7. That if the plaintiff had reason to believe that his goods had arrived at the depot of the company in Detroit, it was his duty to have called for them, or to enquire for them at the expiration of the usual time for delivery; and if he unreasonably neglected to do so, he was himself in fault, and cannot recover, or he must be deemed to have consented to let them remain as warehoused.”
    The Court instructed the jury as prayed for in the first, second and third points; but refused to charge as requested in the. fourth point, to which the defendants excepted.
    As to the fifth, sixth and seventh points, the Court charged as follows:
    “(5.) Upon that, gentlemen, I think it is for you to determine what weight you will give to the books, or any testimony in the case, and I cannot interfere with your right in that regard; therefore that is refused.

      “ (6.) That, gentlemen of the jury, means to say if the company formerly had notice that W. W. W. meant Wm. Ward Wheeler, and the agent, for any reason left the employment of the company, and they had another agent in their employ that did not know that, it is claimed the company would not be liable; that the knowledge of the company ceased with the discharge of the agent by the company who possessed that knowledge. As a question of law, gentlemen, I am not entirely clear upon that point; but inasmuch as there has been no evidence upon that question, I shall charge you that that is not law. I wish to say to you, though I am not entirely clear upon that point, yet if I do charge you, you must be entirely clear upon that

      point; if I say to you it is law, that is all there is of it, it is law. It was not necessary that this agent who had this knowledge was in the employ; if the company knew it before, by any of its agents, that would be sufficient; so that that is refused.
    “ (7.) For the purposes of this case, gentlemen, I shall refuse that.”
    The counsel for the defendants excepted severally to each of the rulings of the Court on these points. The Jury found a verdict for the plaintiff; and the judgment entered thereon, the defendant below brings into this Court by writ of error.

      Titeo. Romeyn, W. B. Moran and H. L. Baleer, for plaintiff in error.

      D. B. <£ H. M. Duffield, for defendant in error.
   Graves, J.

The defendant in error sued the company to recover the value of two casks of zinc brought over the railway and deposited in the depot of the company on the 14th day of April, 1866, and destroyed by the fire which consumed the depot on the night of the 26th of the same month. The goods were marked “ W. W. W.” and had nothing else upon them to indicate to whom they were consigned. In consequence of this the company claimed that they had no information as to the consignee, and could do nothing more than to warehouse the goods on their arrival, until the consignee should appear, or in some way be pointed out to them. The defendant in error urged that the company were chargeable with notice, that goods marked as these were, were meant for him, and in order to prove this, he testified that, occasionally from September, 1863, to November, 1865, the company had brought zinc for him, marked like that in question, and that in more than one instance it had been delivered to him by the company without his interference. He further testified that on two or three earlier occasions, he called for zinc, which he then expected, and saw the agent on the subject, who, he says, knew his mark perfectly well. He did not recollect who this agent was, but thought it was McDonnell. The witness was unable to fix the date of any of these interviews or deliveries. The company gave evidence with a view to show that none of their agents, in April, 1866, had any knowledge that the mark upon the zinc in question, signified the defendant in error, and further gave evidence to prove that it was the business of the delivery clerk to attend to the delivery of goods to consignees, and that such clerk had been several, times changed within a year or two before the fire, and that the clerk employed in the month of April, 1866, had been in the company’s service for some time before.

In view of the testimony given on this subject, the Court at the instance of the defendant in error, instructed the jury as follows: “ If the jury find that the defendants had frequently received, transported and delivered to plaintiff before the shipment of the goods sued for, goods of the same nature and description, and marked in the same manner, it is evidence tending to show that the company’s agents knew that “W. W. W.” was the shipping mark of plaintiff. ” The plaintiffs in error then requested the Court to charge that “the plaintiff is bound to show that some of the officers or agents of the company, who were such when these goods arrived here, were chargeable with notice that they were intended for the plaintiff. It is not enough to show that former officers or agents were chargeable with such notice.” But the Circuit Judge being in doubt, as he stated to the jury, about the law involved in this request, refused to give the direction prayed for, and advised the jury — “that it was not necessary that this agent who had this knowledge was in the employ; if the company knew it before by any of its agents that would be sufficient.”

We think in this charge and refusal the Court erred. The case presented was not one in which the jury could rightly infer a continuance of knowledge in the company in consequence of notice to a former agent.

The fact, if admitted, that the mark upon the goods had been understood by former agents as the mark of the plaintiff below, was an isolated and transient one, and capable of affecting the company only, because the latter as principal, was identified with the agents possessing the knowledge so far as to make such knowledge in the agent, the knowledge of the company. Any change of agency which would remove that knowledge from the company’s service would sever all connection between the company and the means of knowledge, and so effectually exclude all idea of notice through the medium of former agents. The subject of notice in this case had no relation to any usage, system, course of business, or persistently impressive circumstance, upon which a presumption could be raised, that knowledge of it once brought home to an agent must permanently attach to the corporation. From the nature of the thing the notice could only attach to the principal, so long as the knowledge should remain present in the agency. A corporation has no memory except through its agents and its records, and while the letters “ W. W. W.” might appear in the company’s books, the meaning ascribed to them by defendant in error would not. The circumstance that these letters personated this or that individual would still be an extrinsic fact known or unknown to the agent, and if unknown to the agent, then unknown to the company.

, We feel called on to observe farther, that when carriers are receiving daily a multitude of differing packages for distribution, delivering among a very large number of persons of whom a considerable portion at least, must be strangers to the agents, a notice to an agent on one or more occasions, that certain arbitrary marks indicate ownership in a particular person, ought not to affect the prnicipal with notice of the same fact in any future transaction, unless it is affirmatively shown that the agent at the time of the latter transaction actually remembers the previous notice, and in view of the circumstances has reason to suppose that the same marks still denote the same ownership. And where one, instead of having his goods marked with his name, chooses to adopt some arbitrary or equivocal mark or device, which any other person has an equal right to employ, he should be considered as thereby taking upon himself any risk of failure of the goods to reach him, in consequence of such imperfect marking, and should at his peril see that the carrier in each instance understands the complete significance of his mark or device.

The record presents some other questions, but as they will probably not arise on another trial, we do not consider them.

The judgment below must be reversed with costs and a new trial ordered.

The other Justices concurred.


author: Campbell, Oh. J.

text:
    Orrin A. Wait v. Norman G. Pomeroy.

      Promissory note: Alteration, A memorandum written under a promissory note and qualifying its obligation is a part of the contract; and its destruction vitiates the note, even in the hands of an .innocent bona Jlde holder.

      Heard May 11.

      Decided May 13.

    Error to Washtenaw Circuit.
    This was an action of trover brought by Pomeroy in the Circuit Court for the County Washtenaw for the value of a pair of horses delivered by him to Wait, in exchange for a promissory note, of which the following is a copy: $200.00. Township op Sharon, Oct. 12, 1868.
    One year after date, I promise to pay W. D. Munn or bearer, two hundred dollars, for value received, with ten per cent, interest.
    No. 113. CONBAD HISELSOHWEBDT.
    The plaintiff offered evidence to show, that at the .time of the trade, the defendant stated to the said plaintiff that the maker of the note “lived or had lived on the Bo we farm, and that said note was good and the Dutchman all right,” and that if at any time he was dissatisfied with said note, he might return the same, and defendant would trade back; and that the trade was made on those terms. The maker of the note was produced and sworn as a witness on the part of the plaintiff, and admitted that he signed the note, but that when the note was given, there was a clause below stating that if the machine was not delivered the note was not to be paid; the words were — “If the machine should not be delivered this note not to be paid.” The witness stated further, “ The machine was never delivered. I would not sign the note without those words. I never lived on the Bowe farm. I was not good last April, — I had no property then liable to execution.”
    The Court charged the jury as follows: If you should find that the defendant represented the note as all right, and if you should find that the note was originally given with a memorandum or writing at the bottom of the note, limiting or fixing the payment of the note upon condition that the machine or implement for which the note was given should be delivered before the note should become payable, and if this memorandum has been removed, and if the machine has not been delivered, then the note, even in the hands of a Iona fide purchaser, would not be collectible as against the maker. And further, the cutting off a memorandum or writing at the bottom of a note, which, in some material point, affects the terms of the note, would render the note invalid in the hands of an innocent or
      dona -fide holder of the note. To which the defendant excepted. The jury found for the plaintiff, and the judgment entered on the verdict, the defendant below brings into this Court by writ of error.

      Joslin & Blodget, for plaintiff in error.

      El. J. Beakes and B. E. Frazer, for defendant in error.
   Campbell, Oh. J.

The only question raised in this case is whether the destruction of a memorandum, written under a promissory note, and qualifying it, vitiates the note in the hands of a dona fide holder, having no knowledge of the alteration.

We think it quite clear upon the authorities that the note and memorandum constituted but one contract, and were in law a single instrument. There are some decisions which have held particular memoranda immaterial. But no case has been cited, and we have found none which holds that, if material, it may be disregarded. The cases are fully collected in 2 Pars. Bills and Notes, 589 and seq. And while a memorandum on a separate paper is said by Mr. Parsons not to affect parties taking without notice, it is otherwise where all is in one instrument. To use the language of the Court of Queen’s Bench, in Warrington v. Early, 2 Ellis and Bl., 763; “This forms part of the contract. It would' clearly have been so if it had been written in the body of the note, and we think a memorandum of this kind written in the corner of the note is equally part of the contract, because the contract must be collected from the four corners of the document, and no part of what appears there is to be excluded.” Accordingly a memorandum fixing the rate of interest was held a material alteration of the note, which destroyed its validity.

If it formed a part of the original contract, it was a material alteration to detach the memorandum, and leave the note as if it had been absolute. And it is a principle well settled that such an alteration avoids the entire obligation. In Wheelock v. Freeman, 13 Pick. R., 165, the precise point was decided on such a memorandum separated from a note, and a similar question had arisen in Coolidge v. Inglee, 13 Mass., 26, and a similar ruling was made there. The same decision was made in Johnson v. Heagan 23 Maine R., 389. In Burchfield v. Moore, 25 L. and Fq., 123, the addition of a place of payment was regarded as a material alteration, so as to avoid a bill, although by act of Parliament the acceptance was made a general one when such words were used originally; for the Court held that the acceptor might be prejudiced by the change. And although the bill was in the hands of a Iona fide holder, it was decided that he could not sue upon the bill, but must look to the party from whom he took it for a return of the consideration. It was held that a similar remedy might be resorted to by the successive holders until they reached the party through whose fraud or laches the alteration was made. And the Court remarked, “The negotiability of bills of exchange is to be favored; but with this view it is material that their purity should be preserved.” And if the alteration is material, it makes no difference whether apparently favorable or prejudicial. Gardner v. Walsh, 32 L. and Fq., 162. That may in some cases have a material bearing, where the fact of consent is in issue.

There seems at first a plausibility in the argument, that a party by signing a note with a separate memorandum beneath, puts it in the power of the holder to gain easier credit for the note, than it would be likely to gain if altered in the body. But as it was well suggested on the argument, no one is bound to guard against every possibility of felony. And practically, it is a matter of every day occurrence, to feloniously alter negotiable paper as successfully by changes on the face as in any other way. The public are not very much more likely to be defrauded in one way than in another. There can never be absolute safety except by looking to the character and responsibility of the persons from whom such paper is received, and who are always bound to respond for the consideration if it is forged. Little v. Derby, 7 Mich., 325. If a party makes a contract in such a manner as is authorized by law, he has a right to object to being bound to any other. A bona fide holder before maturity is allowed to receive the genuine contract, discharged from any equities attaching to the contract itself, as between the original parties, but he cannot get a contract where none was made.

The judgment was correct, and should be affirmed.

The other Justices concurred.


text:
    Wilson C. Edsell et al. v. Emory O. Briggs et al.

      Contribution. A note was executed by six persons and entrusted to an agent, with special instructions not to deliver it until it had been signed by as many others, who were equally interested in the object for which the note was made. The parties who were to sign it, instead of obligating-themselves as makers, endorsed on it a guaranty of collection, and put it in circulation: Held, — that in equity the guarantors may be compelled to pay their share of the note.

      Equity pleading: Allegata et probata. The proof of allegations in a bill which are not material to the complainant’s equities, and which might have been omitted without affecting the case, is not essential to establish the case for relief within the prayer of the bill.

      Jurisdiction in equity : Remedy at law. A remedy at law must be complete and ample, not doubtful and uncertain, in order to deprive a party of his remedy in equity.

      Heard May 11.

      Decided May 13.

    Appeal in Chancery from Allegan Circuit.
    The bill in this cause was filed in the Circuit Court for the County of Allegan in Chancery, by Wilson C. Ed-sell, Daniel M. Hall, Lenora Foster, Franklin Chadsey, Willard Higgins, and James Monteith, against Emory 0. Briggs, Isaac W. Willard, Thomas L. Stevens, J. P. Threslier, Edmund Smith, and Alonzo Sherman, to restrain the defendant Briggs from proceeding in an action at law then pending for the collection of the amount due upon a promissory note, made by complainants for four thousand and five hundred dollars, a guarantee for the collection of which had been endorsed on the note by the remaining defendants; or if it should appear that the defendant Briggs was a dona fide holder of the note, without notice of the equities set up in the bill, that the other defendants might be decreed to pay the same proportion of the note as they would be liable for, if they had been joint makers with the complainants.
    The cause was heard upon pleadings and proofs. The Circuit Judge granted the prayer of the bill for an injunction, and decreed that within sixty days the complainants should pay one half of the amount due upon the note; and that the defendants, (except Briggs), should pay the other half to the defendant Briggs. And, further “that in case the said defendants last named neglect to pay the sum aforesaid to the said defendant Briggs, within the time above limited, that then, and in that case, the said complainants shall pay to the said Briggs the amount above decreed to be paid by the said defendants, Wilfard, Baker, Stevens, Thresher, Sherman and Smith, within thirty days after the time limited for the said defendants to pay the same, and that said complainants, on showing said neglect and such payment by them, have leave to apply to the Court for execution thereof, against said defendants last above named, for the amount above decreed to be paid by them to said complainants.”
    The defendants appeal to this Court.

      J. L. Hawes, for complainants.

      Thos. H. Stephenson and H. F. Severens, for defendants.
   Cooley, J.

The important facts in this case may be stated as follows: The complainants are subscribers to the stock of the Chicago & Michigan Grand Trunk Railway Company, and have paid a part only of the amount subscribed. They reside at Otsego in the County of Allegan, and two of their number are directors in the company. The defendants, except Briggs and Thresher,f are subscribers to the stock of the same company, residing at Paw Paw, in VanBuren County, who have also paid a part of their subscription only, and three of their number are directors. Thresher, at the time this controversy arose, was Secretary of the company. In July, 1866, there being a debt of $4,500 against the company which required to be provided for, Thresher was sent by the President to Paw Paw, to see the parties in interest for that purpose. He there saw the three local directors, aiid after consultation, a note for $4,100 was drawn and delivered to him to be taken to Otsego, in order to be signed by the parties in interest there, as the proportion they ought to pay upon this demand, in view of the former payments which had been made at Paw Paw and Otsego respectively. Thresher took the note to Otsego and stated his errand to the complainants, but they after considerable consultation refused to sign it, alleging that it was more than their fair proportion. Finally, however, they prepared and signed a note of $4,500, payable at the First National Bank of Paw Paw, with interest, to the order of Thresher, at ninety days, enclosed the same in an envelope addressed to the Paw Paw directors, and delivered the same to Thresher, with written directions that the same was not to be made use of until signed by an equal number of parties in interest at Paw Paw, in order that when payment came to be due, the Otsego parties might be under obligation to pay only one half of it. Thresher took the note and directions to Paw Paw and duly delivered them; but the parties there, instead of following the directions, endorsed on the note a guaranty of collection, which they signed, and then procured it to be discounted at the First National Bank at that place. After the note fell due, the signers were called upon for payment, and some small sums were paid. The balance not being paid, the Bank, in the name of Briggs, the cashier, brought suit against the makers. This suit was then commenced in equity, the general purpose being to compel the parties at Paw Paw, who guaranteed the collection of the note, to pay one half the amount thereof, as they would have been obliged to had the directions sent to them by the hands of Thresher been carried out. The Circuit Court in Chancery made a decree to that effect.

We are of opinion that this decree accomplishes substantial justice between the parties, and ought to be affirmed, unless there are difficulties of a formal character which will preclude it. The defendants make several objections to the decree.

1. They say that the complainants have not established the case made by their bill, in some important particulars. We think, however, that such allegations of the bill as are not proved are not material to the complainant’s equities, and might have been omitted without affecting the case.

2. They claim that the delivery of the note by the complainants to Thresher, the payee, made it unconditional, inasmuch as the payee could not hold the note as an escrow. But we do not find that the note was delivered to Thresher as an escrow. It was delivered to him as messenger only, to be carried to Paw Paw and handed to the local directors there. In his hands, until so delivered, it had no validity, either immediate or conditional.

3. It is said that complainants had a remedy against the note in the suit at law. We are not satisfied, however, that they had any such remedy. They certainly did not have an equitable defense against the suit at law; and the equities alleged in this bill not being equities against the bank, but against the other parties. If they had any defense there, it was on the ground that the note, having been made use of contrary to their directions, never became a binding instrument. A remedy at law, in order to preclude a suit in equity, must be complete and ample, and not doubtful and uncertain, — as we think the defense suggested for these complainants in the suit at law, against them, would have been. — Barrows v. Doty, Har. Ch., 2.

4. It is insisted that complainants are estopped from alleging that the note was negotiated without their authority by the payments they made upon it afterwards. But there is no ground for an estoppel here. Nobody has acted upon the faith of these payments, and consequently nobody can claim, that to allow the equitable circumstances set up in the bill to be now relied upon, would work any hardship to him. Upon the question, whether the note had any legal validity or not, the fact of payment would have been important evidence on behalf of the bank, in the suit at law; but upon the question whether as between the Otsego and Paw.Paw parties, the latter ought to pay one half the note, it has no force or bearing whatsoever.

These are the principal objections urged to the decree, by the defendants, and as we find in none of them, or in any others which were suggested, a sufficient reason for disturbing the decree, it will be affirmed, with costs.

The other Justices concurred.