source: Caselaw Access Project

author: Campbell J.:

license: Public Domain

text:
    Henry Woodrow v. Daniel Michael.

      Tenancy at will — notice'to quit. — Where premises were let at a fixed' monthly rent, with the understanding that the tenant was to give up the possession whenever the landlord might require them for his own use; — Held, That such letting created a tenancy at will, which was only terminable by a full month’s notice to quit a the expiration of one of the monthly periods for payment of rent.

      Heard April, 6.

      Decided April 11.
    Error to Wayne Circuit.
    Michael commenced proceedings before a Circuit Court Commissioner to recover possession of certain premises.
    The case was brought to the Circuit ■ Court by appeal, where the evidence tended to establish the following facts: “ That the premises in dispute were leased to the defendant under the agreement that he should make certain specific repairs upon the house, and‘occupy them by himself, or a tenant, at a rent of twelve dollars per month, payable monthly, until the repairs were paid for by the rent; and that he might occupy them afterwards, till the plaintiff should want them for his own use, (no rate of rent being specified,) when he was to move out, and give them up to the plaintiff. That the defendant made the repairs, and occupied the premises from January, 1862, till the repairs were paid for, and afterwards till April, 1864, paying twelve dollars per month rent therefor. That in April, 1864, the plaintiff by his agent, notified defendant that if he kept the premises any longer, he must pay fifteen dollars per month for them; that the defendant said he would not pay that sum, but that he did keep the preipises and' ’ pay the increased rent, and that nothing further was agreed upon as to changing the terms of the letting in any other respect, and that no other change was made in the terms of holding the premises. That in August, 1864, the plaintiff wished- to move into the premises in dispute, and on the 26th day of August, notified the defendant, by the same agent who had had previous charge of the premises, that he wished to occupy the premises himself, and desired the defend-' ant to give up the possession of the same to him. That the defendant said the agreement was that the plaintiff' was to have the house when he wanted 'it, and that he, the defendant, would move out if' he could find another house. That, subsequently, the plaintiff’s agent again saw the defendant, and repeated the previous request, and the defendant then said that he could not find another house, and would not give up possession of the premises.”
    The- defendant requested the Circuit Judge to instruct the jury that, if they found the agreement between the parties tó have been that the defendant should occupy the house in question, at a fixed monthly rental, until the plaintiff should want it for his own use, the defendant’s tenancy could not be determined except by a month’s notice to quit, in writing.
    The Circuit Judge refused to so instruct the jury, but did instruct them that, if the agreement between the parties was that the defendant should give up the possession of the premises whenever the plaintiff should! want them for his own use, and the contingency had happened on which the defendant was to give them up, the term was ended without a month’s notice to quit under the statute.

      Exceptions were taken by the counsel for the defendant, and the jiu-y having returned a verdict .for the plaintiff, • defendant brought writ of error.

      F. H. Canfield and A. Pond, for plaintiff in error:
    The term was entirely indefinite as to the period of its duration, and in this it possesses the chief characteristic of tenancies at will, as given by the authorities.— 1 Greenleaf’s Cruise, 264; 4 Kent Com., 111; Taylor's Landl. and Ten., 59; 1 Washburn on Peal Prop., 370.
    Although, by the terms of the agreement, the tenancy might be terminated at the. will of the lessor only, it was legally determinable at the will of either party. — 1 Washburn on Real Prop., 371; 1 Greenleaf's Cruise, 266; Cheever v. Pearson, 16 Pick., 272.
    There is a clear distinction between the agreement proved in this case, and that of a lease determinable upon the happening of a particular -event, where no notice to quit is necessary.
    The following cases are closely analogous to the one now before the Court for consideration: Cudlip v. Rundall, 4 Modern R., 9; Harrison v. Middleton, 11 Grattan, 527; Humphries v. Humphries, 3 Iredell, 362; Cheever v. Pearson, et al., 16 Pick., 266; 1 Washburn on Real Prop., 371, note and cases there cited.

    The tenancy being at will, could only be determined .by the notice required by the statute. — 2 Comp. laws, §2807.
    The following are cases of tenancies from month to month, in which it was held that a month’s notice is necessary to terminate the relation of lessor and lessee between the parties: Prescott v. Elm, 7 Cush., 346; Prickett v. Ritter, 16 Ill., 96; Seems v. McLees, 24 Ill., 192; Anderson v. Prindle, 23 Wend., 616; Coffin v. Lunt, 2 Pick., 70.

      Ward & Palmer, for defendant in error:
    That the event on which the lease was to be terminated was uncertain, is no reason why it should not have that effect if it did occur. — Creech v. Crocket, 5 Cush., 133; Hollis v. Pool, 3 Met., 350; Ashley v. Warner, 11 Gray, 43; Howard v. Merriam, 5 Cush., 563.
   Campbell J.:

Defendant in error brought proceedings to evict plaintiff in error, as a tenant holding over after the expiration of his term. He showed, in the Court below, a tenancy from month to month, on the understanding that the tenant should give up possession whenever the landlord should want the premises for his own use. The tenant failed, on demand, to yield possession — no notice having been given to terminate the tenancy, which he claimed to be an ordinary tenancy at will. The Court below charged that it was an estate which terminated on the happening of a contingency, without notice, and that the tenant held over wrongfully after such contingency occurred.

Without stopping to inquire whether an estate for an indefinite period, but terminable upon a contingency, can be created under our statute, by parol, we think that, where the alleged contingency consists merely in 'the expression of the landlord’s desire ■ to resume the estate to his own enjoyment, the case is the simplest illustration of a mere tenancy at will, and comes strictly within its definition. It can only be determined by notice, which, in this case, should have been a full month’s notice to quit, at the expiration of one of the monthly periods fixed for the payment of rent. The case is within the principle of Huyser v. Chase, decided at the last term.

Judgment must be reversed, with costs, and a new trial must be granted.

Christiancy and Cooley JJ. concurred.


author: 'Campbell J.:

text:
    The Phœnix Insurance Company v. George Gray Administrator, etc.

      Sight draft — presentment of — reasonable time for. — A draft, payable at sight, should be presented for payment within a reasonable time; and no delay is reasonable beyond that which may be fairly required in the ordinary course of business without special inconvenience to the holder, or by the special- ' circumstances of the case. —11 Mich., 501.

      Delay of presentment — excuse for.— "Where a debtor turned out to his creditors a draft payable in “Chicago exchange,” to be collected and applied on his debt, and the creditors received in payment of it, a sight draft on Chicago, payable in “ current funds,” which they neglected to present for payment for twenty-one days, when it might have been presented-within a few hours; — Meld, that said ’delay was unreasonable, and was not excused by the fact that the creditor retained the draft for the purpose of procuring instructions from his debtor as to the funds he should receive in payment.

      Heard April 8.

      Decided April 28,
    Error to Wayne Circuit.
    The facts sufficiently appear in the opinion of the Court.

      Douglass & Andrews, for plaintiff in error:
    As to the degree of diligence required of the holder of a draft in presenting it for payment, see — Merritt v. Todd, 23 N. Y., 28; Smith v. Janes, 20 Wend. 192; Allen v. Suydam, 19 Wend., 368; 20 do., 321; Mohawk Bank v. Broderick, 13 Wend., 133; Straker v. Graham, 4 M. & W., 721; Dumont v. Pope, 7 Black, 367; Brady v. L. M. R. R. Co., 34 Barb., 249; Vantrot v. McCulloch, 2 Hilt., 272; Linville v. Welch, 29 Miss, 204; 2 Archbold's Nisi Prius, 116, 66.

      Charles I. Walker, for defendant in error:
    Were there any facts in this case tending to show that the holder acted with reasonable -diligence so that the question could properly go to the jury?
    The Court held on the former hearing that no such facts then appeared, and that the question had really. been submitted to the jury as one of law, and law books read to them to aid them in their conclusion. — 11 Mich., 512.
    The peculiar character of the draft, payable in “current funds,1might well raise a question as to the kinds of funds in which it was payable, and make them hesitate as to its disposition. — 1 Parsons on Notes, 46 note.

    They sought the instruction of Allen as they might well do.
    Whether the delay of eleven days before writing Mm a second time was unreasonable, is exactly the question, depending upon judgment and discretion, upon which the jury ought to pass.
    Even when the Courts have undertaken to determine fcMs as a matter of law, they have acted upon facts slighter than those proved in this case. — Muilman v. D'Eguino, 2 H. Pl., 565; Goupy v. Harden, 7 Taunt. 158; Mellish v. Rawdon, 9 Bing., 416; Godfrey v. Coulman, 13 Moore, P. C. C., 11, cited in 24 Law Rep., 683; Robinson v. Ames, 20 John, 150; Gowan v. Jackson, 20 John., 175; Aymar v. Beers, 7 Cowen. 705; Wallace v. Agry, 4 Mason, 336; 5 Mason, 118; Bolton v. Harrod, 4 Martin La., 555.
   'Campbell J.:

This case was before us and decided upon points resembling those now under consideration in Phoenix Insurance Company v. Allen, 11 Mich. R., 501. It was there held that retaining a draft on Chicago which had been received upon a claim for twenty-one .days without taking any steps to collect or realize it, was, unless excused, an unreasonable delay whereby the holder must be deemed 'to have made it his own, and barred his remedy upon the claim itself.

The case now comes up on a state of facts introduced in evidence to account for the delay, and which as presentecl by the plaintiff below, is as follows: Allen, who resided at Grand Rapids, having a disputed claim against the Phoenix Insurance Company upon a fire, policy, agreed to take in settlement a draft on the Company’s agent at Cincinnati, payable in “ Chicago exchange,” for $1106-^;-. This draft, dated April 20, 1861, he endorsed to the firm of Stephens & Beatty, of • Detroit, who agreed to collect it and apply the proceeds as far as necessary to the payment of a debt of between $400 and $500, due them by Allen, and account to fiim for the rest.

Stephens & Beatty, sent the draft to their agents at Cincinnati, who received for it a bill on Chicago drawn by G.' H. Bussing & Co., payable “ in current funds ” to the order of R. H. & H. M. Magill, General Agents -of the Phoenix Insurance Company, and endorsed by them. This last bill on Chicago was received by Stephens & Beatty on the 3d or 4th of May, and transmitted by them to their agents in Chicago on the 25th of May. On the 27th it was presented and dishonored, and due notice was given to the -endorsers. During all this time there were daily mails from Detroit to Grand Rapids and Chicago, the usual time being to the former place about seven horns, and to the latter about twelve or .thirteen hours.

To explain the delay in the transmission of the bill for presentment, evidence was introduced to show that Stephens & Beatty, on the 4th day of May, wrote to Allen asking him what to do with the bill. Receiving no reply they wrote again on the 15th or 16th, and again on the 20th. To the letter of the 15th or 16th Allen replied that he would write in a day or two. In reply to the last letter he wrote desiring the holders to demand payment in such currency as the Merchants’ Loan and Trust Company of Chicago would receive on deposit, and to deposit there and take a certificate; and if not paid in such funds to have it protested. TJpon receiving this letter . Stephens & Beatty forwarded the bill for presentment as before mentioned. The Court, •under exceptions, left the case on these facts to the jury, as a question of fact to be decided by them, and refused to charge as requested that the presentment was not made within a reasonable time if these facts were as claimed.

We held, upon the former hearing of this case, that no delay was reasonable beyond that which might be fairly required in the ordinary course of business, without special inconvenience to the holder, or by the special circumstances of the case. It devolved upon the plaintiff in error to show that -the delay was required by special circumstances which rendered it impossible to act, earlier, without damage or inconvenience beyond such as would be incident to the ordinary course of business. We think the evidence offered had no tendency to establish any such excuse. The ■ original draft called for “ Chicago exchange,” and Stephens & Beatty were to collect and apply the proceeds. If the fact that the. term “current funds” was used, rendered it less available— a point upon which there is no distinct proof— that might have been a reason for not taking it at all, but could be no reason for delaying presentment after it was taken, and in this respect we must consider the duty of the parties as unaffected by the peculiarity. Being the lawful holders, and having the paper'1 on purpose for collection, we can see no reason whatever why time should be taken for corresponding with Allen, when neither party could change the character of the bill, which was collectable, according to its terms, and should have been presented promptly. There is no evidence of any change in the course of business, or sickness, or accident, or other disturbing circumstance. Whatever may have been the meaning of the phrase “current funds,” it meant the same when the bill was drawn as when it was presented, and the holders, by receiving it, undertook to deal with it as it appeared on its face. There is no circumstance in the case which would have excused a delay in presenting any other kind of draft, and none' which rendered it any more proper in regard to this. When the Insurance Company gave to Stephens & Beatty su.ch paper as they were willing to accept, they could not afterwards claim any delay as necessary,'merely because the bill differed in its terms from some other classes of negotiable paper. It was as easy to forward and collect the one as the other.

The Court erred in refusing the request prayed for by the plaintiff in error. Judgment must be reversed with costs, and a new trial granted.

The other Justices concurred. .


author: Martin Ch. J.: Christiangt J.,

text:
    James Fraser and Others v. William L. P. Little and Others.

      Replevin bond — amount recoverable in suit on. — In an action against the sureties in a replevin bond, no judgment can be recovered for an amount exceeding tbe penalty of tbe bond and costs of suit.

      Heard April 8 and 11.

      Decided April 26.

    Error to Saginaw Circuit.-
    The case was an action of debt on a replevin bond; was tried by the Circuit Judge; without a jury, and judgment rendered for the plaintiffs, (defendants in error.)

      JBaekits <& Harbaugh, for plaintiffs in error:
    The Court erred in rendering judgment in favor of the defendants in error for a sum greater than the penalty of the bond set forth in the declaration.
    , Sec. 5014, Comp. L., prescribes the duty of sheriffs in actions of replevin, the amount of penalty, and condition of bond.
    Secs. 5043 and 5044 direct when suit on bond may' be brought, and the proceedings therein. — Williams v. Vail, 9 Mich., 162.
    The rule seems to be well settled, that against a 'surety in debt on bond nothing can be recovered beyond the penalty. — Sedgwick on Damages, 451 and note, 452, 453.
    The sureties in a replevin bond are, together, liable •only to the amount of the penalty in the bond, and the costs of suit on bond. — 1 Taunt., 218.
    . On a penal bond, a judgment cannot be recovered beyond the penalty. — 2 McLean's R., 581, 587.
    The same principle was recognized in the following cases: McClure v. Dunkin, 1 East., 436; Wilde v. Clarkson, 6 Term R., 303; Hefford v. Alger, 1 Taunt., 218; 2 Wash. R., 143; 3 Cow., 151; 5 Cow., 424; 2 Wash., C. C. R., 323 ; 5 Peters' R., 385.
    In the case 5 Peters, the Comt lays down in express .terms that the judgment against the surety cannot exceed the penalty. And this equally excludes damages beyond the penalty, for interest, or ola any other ground.

      Wn. L. Webber, for defendants in error:
    The only error assigned is, that the Court erred in giving judgment for a sum greater than the penalty of the bond. In this there is no error.
    •The true rule in such a case is ¿the one adopted by the Court. ^
    When tbe judgment was rendered in the replevin suit, • July 5th, 1860, the liability of the plaintiffs in ■error was fixed, and they could then have discharged themselves. If they neglected to pay the money when due, the party entitled to the ■ money surely may have, as damages, interest on the penalty from the time it became due.
    In support of'the judgment,'and the ruling of the Court below, we cite — Brainard v. Jones, 18 N. Y., 35; Carter v. Thorn, 18 B. Mon., 613; Hughes v. Wickliffe, 11 B. Mon., 205; Walcott v. Harris, 1 R. I., 404; Harris v. Clap, 1 Mass., 308; Judge of Probate v. Heydock, 8 N. H, 493; Smedes v. Hooghtaling, 3 Caines R., 48; Mower v. Kip, 6 Paige, 91; United States v. Arnold, 1 Gallison, 348.
    The American authorities are nearly uniform on this, subject. The English cases are conflicting. — Lonsdale v. Ghurch, 2 T. R., 388; Francis v. Wilson, Ry. and M., 105; Wilde v. Clarkson, 6 T. R., 303; Branscombe v. Scarbrough, 6 Q. B., 13.
   Martin Ch. J.:

This action is for the recovery of the penalty of a bond executed by Fraser and Raymond, in the penalty of $800, conditioned that one Robertson should prosecute-to effect an action of replevin then commenced by him against the defendants in error — Little, Hess and BoutelL It appears that Robertson was defeated in his action, and judgment rendered against him for the value of the prop-, erty replevied by him — viz., for $1,753 T^. I do not learn from the bill of exceptions that any execution was. issued upon such judgment, and returned as unsatisfied wholly or in part, nor that any effort was made to collect from Robertsoü the amount of such verdict. In this action, the Court rendered judgment against Fraser and Raymond for the penal sum of the bond, - with interest, (called damages for the ‘detention of the sum of $800,) from the rendition of the judgment in the action of replevin, amounting in all to the sum of1 §1,010 -fflo. The error assigned is, that the Court rendered judgment for an amount exceeding the penal sum mentioned in the bond. ' I think this error is well assigned. The obligation of the plaintiffs in error arose upon no consideration received by them, or benefit which could accrue to them. It was purely' voluntary, to satisfy the statute, and enable Robertson to prosecute his action of replevin. The statute requires such bond to be in a sum at least double the appraised value of the property replevied. This statute, I think, fixes the limit of the sureties’ liability, so that, in executing a bond as surety, we must understand that he intends, and only undertakes to become liable to the extent, of the penal sum mentioned, and no further, and that the statute requires nothing more from him. Although there are conflicting authorities upon this question, yet it seems to me that upon no principle of equity or justice can a surety upon such a bond, given under such circumstances and statutory requirements. as the ■ bond in this case was executed, and without any consideration received for it, or resulting benefit to -spring from it, be held beyond the sum “ nominated,” and cast in damages, for no default of his own. The remedy of Little and others, for any excess of damages oxer the $800 is ■exclusively against the plaintiff in the action against them. Fraser and Raymond risked §800, and no more, ■and there could be no default upon their part by reason of the failure of the plaintiff in the replevin suit, or otherwise, which could increase the penal sum of the bond, or impose upon them a greater liability than the one assumed. The statute, as above remarked, having required the bond to be at least in double the appraiséd value of the property replevied, they had a right to suppose, and it would be a reasonable and natural presumption that the penal sum fixed in the bond would, and should, cover all exigencies, so far as affected their liability.

■ I think the judgment should have been for the sum ■of $800 only, and that the judgment of the Circuit Court should be reversed, and a new trial ordered.

Campbell J.:

The only question in this cage is, .whether judgment can ' be given on. a replevin bond for more than the penalty and costs. The action was an action of debt ■on a bond in the penalty of $800, and judgment was rendered for an additional sum of $210 by way of ■damages for its detention, in addition to costs of suit.

I think there is no foundation for any such judgment. "Wliere a bond, or specialty, is given in the amount actually due,- and not in a penalty, there is no reason and no rule which will prevent a recovery of interest on the .actual debt, for which the bond is only an evidence under seal. But where an undertaking or condition is ’secured by a penal bond, which is not supposed to represent the actual debt by its penalty, such penalty never became the actual debt, except by way of forfeiture, and upon such a forfeiture interest was never ■allowed to run by the common law, or by statute. And the cases cited, on the argument, from Massachusetts and Kentucky, which assume that interest runs merely from the fact that the penalty became the debt upon forfeiture, are entirely unsupported, and would prob-ably never have been made, had not the actual debt in these cases equalled or exceeded the penal sum. As authorities, they are based upon a false assumption, and ■cannot be maintained on any such principle. In England, the rule of liability upon bonds in a penalty, has been almost entirely uniform, and the only cases extending it beyond the penalty and costs have" been overruled and disregarded. The cases are collected in Hurlestone on Bonds, 107, 108, and the rule is there laid down in conformity with the prevailing authorities. The decisions supposed to favor another doctrine, as applicable to suits brought directly upon bonds, are Francis v. Wilson, Ry. and Moo., 105, and Lonsdale v. Church, 2 T. R., 388. In the former case, the bond was not, in any proper-sense, a penal bond, as the- penalty was in the exact amount of the debt mentioned in the condition, which was made expressly to carry interest. It was apparent that the sum mentioned could not be legally treated as. a. penalty, and the Court properly enforced it as a simple money bond or specialty. Lonsdale v. Church is inore directly in point, as the Court refused to allow a defendant, on paying into Court the penalty and costs* to obtain a" discharge, and Buller J. denied that the penalty of a bond limited the recovery. But this Judge seems to stand alone in maintaining the doctrine. Very shortly before, in White v. Sealy, 1 Doug., 49, he had on the hearing of a similar application, expressed a similar opinion, but he finally concurred with his brethren in holding that he had been mistaken.' In Knight v. McLean, 3 Brown’s Ch., 496, sitting in an equity cause, he allowed interest beyond the penalty of a bond* but was overruled by Lord Thurlow, who held that there could be no such allowance, and that the rule was the same in equity as at law. In Wilde v. Clarkson, 6 T. R., 303, the doctrine of Lonsdale v. Church. was expressly repudiated and overruled. In Hefford v. Alger, 1 Taunt., 218, the former cases were referred to, and Lord Thurlow’s opinion approved; and in Branscombe v. Scarbrough, 6 Q. B., 13, where an action was-brought on a replevin bond, which was very much to small to secure the judgment, the Com-t said that granting a rule to show cause why an allowance should not be made - beyond the penalty and costs, would be creating a doubt where no doubt existed. It cannot be said that, under the English common law decisions, there is any room for controversy on the subject. It is only where a suit is brought on some judgment already rendered on a bond, as in Blackmore v. Flemyng, 7 T. R., 442, and McClure v. Dunkin, 1 E., 436, or where an action is brought upon some distinct covenant in a bond, or other obligation, that tbe penalty becomes unimportant; but even in such cases, the penalty is not made the debt on which interest runs. The right to a decree in equity, beyond the penalty of a bond, is denied as clearly and consistently as at law. Where a debt is secured as such by other securities besides a bond, the fact that a bond has been taken will not usually affect the remedy on the other obligations. But there is no authority for allowing any recovery or account beyond the penalty, when the bond becomes material. The only cases where a different result has been reached are where the bond debtor has resorted to equity to obtain relief from legal proceedings ; and then it has been held that, as he who seeks equity must do equity, he might be compelled, after submitting his case to the jurisdiction of equity, to do what was just under the circumstances, and not to reap advantage from a delay which he has compelled his adversary to undergo. These rales, and this class of exceptions, will be found well settled by the decisions: Mackworth v. Thomas, 5 Ves., 329; Teu v. Winterton, 3 Brown Ch.. 489; Knight v. McLean, 3 Brown Ch., 496; Hughes v. Wynne, 1 M. & K., 20; Clarke v. Seton, 6 Ves., 411; Clarke v. Lord Abingdon, 17 Ves., 106; Pulteney v. Warren, 6 Ves., 92; Grant v. Grant, 3 Russ., 598; S. C., 3 Sim., 341; Jeudwine v. Agate, 3 Sim., 129; Walters v. Meredith, 3 Y. & Coll., 264. See, also, Cooper's Cases in Chancery, (Practice,) p. 200 and seg.

In Mower v. Kip, 6 Paige R., 91, the case was the same as in Clarke v. Lord Abingdon, and the decree was manifestly correct, because the mortgage was conditioned to secure the debt, and not the penalty. If designed to go further, the ease is not sustained by the authorities. But it should be understood with reference to the facts presented. In Farrar v. U. S., 5 Pet. R., 372, which was an action on a revenue bond, it was held that no judgment could be given beyond the penalty, and judgment below was reversed on that ground. In U. S. v. Arnold, 1 Gal., 348, although interest was awarded on a penalty, yet the question of such allowance was not discussed, and is not mentioned on the appeal, which was upon an entirely different question — Arnold v. U. S., 9 Cr., 104.

In New York, in Clark v. Bush, 3 Cow., 151, and Fairlie v. Lawson, 5 Cow. R., 424, it was held, after an elaborate comparison of the eases, that a surety on a bond could not be held beyond the penalty, whether the principal could be or not. Where the bond is joint, no distinction could be taken between principal and surety, and the cases generally make no discrimination between them where they are sued in debt on bond, although some cases, denying the universal effect of the penalty, admit it as to sureties. In Brainard v. Jones, 18 N. Y., 35, it was held that, in a case like the present, interest might be recovered on the penalty. .The reasons for the decision are not new, nor such as any mind of ordinary capacity could overlook. It is in direct conflict with the mass of decisions, and in conflict with the principle which underlies them all, that a penalty is not to be enlarged under any circumstances, and will not be enforced beyond its letter. With great respect for the author of the decision, I prefer to rest upon the known and settled rules of the law, which, in all such cases as the present, must be more in accordance with the understanding of the parties than any other. When the statute requires a bond in double the value of property, as fixed by sworn and disinterested appraisers, it must be presumed that neither the law nor the sureties could anticipate the necessity of any larger margin, to meet the possible views of another body of appraisers in the jury box. I think the settled rule is the just one, and should be adhered to.

I therefore concur in the views of the Chief Justice.

Christiangt J.,

dissenting:

I am unable to concur in the opinion expressed by my brethren, that the plaintiffs below were not entitled to recover beyond the penalty of the bond in this case.

I admit the general rule that. the- amount of recovery upon a bond penal in form is limited to the amount of the penalty; but I think the principle upon which the rule rests allows interest to be recovered beyond the penalty, from the time of the breach of the condition. I do not base my opinion upon the ground that the penalty, after the breach of the condition, becomes the debt, (though the results might be the same where the ■sum due by the condition, at the time of the breach, is-the same with, or greater than, the penalty); but since Courts have ceased to enforce the penalty, without refer•ence to the amount due by the condition, Hhe penalty has never, in legal effect, or in any substantial sense, constituted the debt or sum to be recovered. It is so in form only, in consequence of still adhering to the forms in use when Courts actually enforced the payment -of the penalty, though it exceeded the sum due by the condition.

But since the sum to be collected has been confined to the amount due by the condition, this is the sum which, in fact, and in legal effect, so far as - the rights of the parties are concerned, constitutes the debt, or amount to be recovered, except when that sum would ■exceed the penalty mentioned in the bond; and then that sum is limited to the extent of the penalty. The penalty, therefore, has long since ceased to have any ■other effect upon the rights of the parties than as a limitation upon the amount which might otherwise be recovered upon the condition. It has no longer any of the legal characteristics of a penalty, as no forfeiture, in any substantial or legal sense, takes place upon a breach of the condition. The old names, it is true, are retained,, ■with the old forms of pleading; but the penalty has become a mere limitation, and the forfeiture but an ordinary breach of contract.

The legal effect of the bond in the present case, so far as relates to the sum to be recovered, is simply that of a contract under seal, without a penalty by which the obligors become responsible for, and agree to pay any amount not exceeding $800, of “ all such sums of money as may be recovered by such defendants against them in the said actions.”

And when the judgment in the replevin suit had fixed, the amount to be recovered of the defendants in that suit at a sum exceeding the $800 — the penalty of the bond— their liability became fixed at that amount; and from the moment it became the duty of the obligors to pay this amount, their liability was, to all substantial purpioses, the same as upion a direct and unconditional contract to p>ay the $800 at that time. And they stand in the same position as other debtors upon ordinary contracts, whose obligation is to pay the sum when due; and if they fail to do so, I can discover no substantial or just principle upon which interest can be refused, more than in any other case where money has not been paid when the creditor has become entitled to it. This interest the law gives in no case as a part of the money due by the terms of the contract, but by way of damages for its breach — for the delay in piayment; because, if paid when due, it would have earned interest.

I am well aware of the conflict in the aiithorities upon this question, having carefully examined every case cited by my brethren, and in the briefs of counsel, with many others. Most of the cases which have denied the right to recover beyond the penalty, are cases which did not involve this question of interest. I think the weight of American authority is in favor of the allowance. But, however this may be, the rule which allows such interest beyond the penalty, after breach, is the only one to be •deduced from all the authorities, English and American, which rest upon any sound and intelligible principle, and not upon mere forms without substance, or words whxch have lost their essential meaning.

I am unable to appreciate the suggestion of the Chief -Justice, that there is, in the Case of a replevin bond, any want or deficiency of a valuable consideration for the undertaking of the sureties, and that, for this .reason, their liability ought to be looked upon as more restricted than in cases where a pecuniary consideration has been received by the obligors. If any difference could be recognized, the case would, I think, be stronger for giving liberal ■damages in the case of a bond, like the present. The obligees did. not take this bond of their own volition. They had no voice in determining the amount of the •penalty. Their property was taken from them before a trial of their right; and the law gave them this security only in the place of it. The property could not have been thus taken but for the sureties. The penalty •turns out to be much less than their actual damages, as .judicially ascertained. The law has made a bad bargain for the obligees, and ought not to deny them interest <upon an amount equal to the penalty, from the time they became entitled to it.


text:
    The People, on the relation of Augustus W. Hensler, v. The Circuit Judge for the County of Wayne.

      Declaration — amendments.— Tlie Circuit Court lias no power to allow a declaration filed in a case to lie so amended as to change the form of action from trover to assumpsit.

      Heard April 26.

      Decided April 26.
    Motion for mandamus to the Circuit Judge for the County of Wayne.
    Judgment was rendered against the relator, as defendant, before a Justice of the Peace, in an action of trover. The plea was the general issue. The relator appealed to the Circuit Court, and at the next following term,' on motion of the plaintiff, and due notice to defendant, (who- did not appear, however,) an order was granted by the Court, allowing the plaintiff to file an amended declaration in assumpsit. To the amended declaration the relator did not plead.
    Two terms of Court subsequently elapsed, at both of which the case was noticed for trial. At the third term, the defendant moved to have said amended declaration stricken from the files, which was denied, and afterwards, during the same term, his default, .for want of plea to said declaration, was entered and made absolute; but, before judgment, he procured an order of the Court staying further proceedings.
    The relator made application for mandamus, to compel the Circuit Judge to strike from the files and records of said cause said amended declaration.

      IT. M. Oheever, for the relator,
    argued that the Court had no power to allow the filing of the amended declaration.

      Ward & Palmer, for respondent, conPra.

    The Court held that the Circuit Judge had no power to allow an amendment of the declaration, so as to change the form of action from trover to assumpsit, and that the relator was entitled to a writ of mandamus to compel the Circuit Judge to strike the amended declaration in the cause from the files.
    The case of The People v. The Judge of the Circuit Court for the County of Washtenaw, 2 Doug., (Mich.), 434, approved.
   Mandamus granted,


author: Cooley J.: Campbell J.:

text:
    Michael B. Kean v. David Mitchell.

      Declaration on simple contract — statement of consideration. — In declaring upon ar simple contract, except those which import a consideration, the whole con- • sideration should he set forth, so as to show distinctly in what it consists, in order that the Court may judge of its sufficiency to sustain the promise alleged.

      Defective statement of consideration in a declaration — issue of fact joined. — A statement of consideration in a declaration that is sufficient to sustain a judgment, though so defective as to he fatal to the declaration on demurrer, cannot he taken advantage of upon a trial of an issue of fact.

      When defective allegation of consideration will sustain a judgment. — An allegation „ of consideration in a declaration, though defective, will he sufficient to sustain a judgment, when, from the issue as actually made, it can fairly he presumed that the evidence necessary to establish a case was given under it.
    Therefore, where a declaration alleged a sale, and an agreement hy the defendant to deliver goods “for a good and valuable consideration, paid hy the plaintiff to the defendant,” and, upon an issue of fact and trial, judgment was rendered for the plaintiff; — Held, That said allegation of consideration, although it could not have been sustained on demurrer, was sufficient to support the judgment.

      Heard April 5.

      Decided April 26.
    Error to Oakland Circuit.

      Charles P. Crosby and Theodore Pomeyn, for plaintiff in error:
    The special counts are substantially defective, and are had on error, for the reason that they contain no legal statements of a sufficient consideration.

      1st. No consideration is inferable from tbe nature of tbe contract, nor from the special facts set forth in the counts.
    The contract is not one where the law infers or implies a consideration. Hence , there is a necessity for stating one. — 1 Chitty's Pleadings, 293, etc.

    2d. The statement in the declaration of a “ good and sufficient consideration,” without any .further specification, is a statement of a legal conclusion, and not of a traversable fact, and is erroneous in form and substance.— 1 Chitty’s Pleadings, 214, 293; 1 Greenleaf on Evidence, §66, and Notes.

    3d. There being, in fact, no statement of any legal consideration, the declaration is bad on writ of error.
    The objection is not cured by the judgment.
    1st. There has been no application to amend, either in the Court below or in this Court, and there is nothing in the record by which this Court can amend.
    2d. The objection here is, not that there was an informal statement of a consideration, which, by reasonable construction, would have supported the promise, but that there was no statement of any consideration. This 'defect did not require a special demurrer. It is not within the statute of amendments. — 2 Compiled Laws, p. 1201; Hoard v. Little, 7 Mich., 470.

      M. PI. Grofoot, for defendant in error:
    If the defendant desired to take any advantage of the insufficiency of this averment, he should have done so by demurrer.

    The .averment is that “the defendant, for a good and a valuable consideration.”
    Is this averment admitted as stated — a sufficient state, ment of a good and valid contract?
    We think it is; one of the elements of a contract is & consideration to support a promise, although, in the old authorities, this was omitted as an essential of the definition.— Parsons on Cont., vol. 1, 7; Ibid, vol. 2, 295, 297.

      A good consideration is one. founded on motives of generosity, prudence and natural duty. — 2 Pile. Com., 297-, 1 Parsons on Cont., 358.
    ' A valuable consideration is, in some way, pecuniary, or convertible into money. — 1 Parsons on Coni., 358.
    When no consideration is stated in the declaration, etc., the defendant may demur, move in arrest, or support error. — 1 Chit. Pleadings, 300, 301; 7 T. R., 348; 4 Barn. and Cress:, 345; 6 D. and R., 438, S. C..

    But when the words in which the consideration is stated are defective, informal or uncertain, the declaration will only be bad on special demurrer, and after verdict a defective statement of the consideration will be aided, provided that, by a reasonable construction of the whole declaration, it sufficiently appears that there was a consideration capable of supporting the promise.— 1 Chit. Pleadings, 301; Shaw v. Redmond, 11 Serg. & Rawle, 27, 30; 4 East., 455, 464, 465; 13 East., 102; Ward v. Harris, 2 B. & P., 265; 1 B. & P., (New R.,) 172; 4 East., 464; 2 Bing., 464; McClel. & Y., 205.
   Cooley J.:

Mitchell brought suit against Kean in assumpsit, and declared specially that defendant, on a day and at a place named, “ for a good and valuable consideration, then and there paid by. said plaintiff to said defendant,” bargained and sold to plaintiff certain goods and chattels, and then and there, “for the consideration aforesaid,” promised and .agreed to deliver said goods and chattels to said plaintiff, when thereunto afterwards requested. Breach: a neglect and refusal to deliver. The declaration also contained the common counts. The defendant pleaded the general issue. J

On the trial, the defendant objected to the introduction of any evidence under the special counts, for the reason that no consideration was set forth therein for the defendant’s promise; but the Court overruled the objection, and admitted the evidence offered, and plaintiff had a verdict. The sole question before us is, whether the Court was correct in this ruling.

In declaring upon simple contracts, except in those cases where the contracts themselves import a consider-' ation, the rules of pleading require the consideration to be set forth. When that which is stated is clearly insufficient or illegal, the defendant may either demur, or move in arrest of judgment, or support a writ of error. But when the mode in which the consideration is stated is defective, informal or uncertain, the declaration will be bad upon special demurrer; but after verdict, a defective statement of the consideration will be aided, provided, by a reasonable construction of the whole declaration, it sufficiently appears that there was a consideration capable of supporting the promise. — 1 Chit. Pl., 300.,

The consideration is required to be set forth “that the Court may see that it is of that kind and nature to sustain the promise.” — Lansing v. McKillip, 3 Caines, 287. It “ should be distinctly set out, that the Court may judge of it.” — Whitall v. Morse, 5 S. & R., 361. And the declaration should “ state the whole consideration expressly and formally, correspondent with the facts in the case, and co-extensive with the contract.” Hendrick v. Seeley, 6 Conn., 179; Treadway v. Nicks, 3 McCord, 122.

It is obvious that, if the plaintiff may allege, in general terms, that there was a consideration, without specifying in what it consists, it will’ be impossible for the Court to say, from the declaration, whether that which the plaintiff considers a valid consideration is, in fact, one which “will support an assumpsit. And it has been held that to allege that the defendant, being indebted to the plaintiff in a sum specified, in consideration thereof, promised to pay, etc., was not sufficient to support a judgment by default, because the cause or consideration upon which the debt was founded was not set forth. — Beauchamp v. Bosworth, 3 Bibb, 115. See, also, Maury v. Olive, 2 Stew., 472, where a similar declaration was held bad on general demurrer. In Parker v. Crane, 6 Wend., 648, a declaration for that the defendant, in consideration that the plaintiff had, before that time, sold and conveyed to the defendant a certain farm, undertook and promised, etp., was held bad on demurrer to a plea, because - the consideration being past, it was not alleged to have been done at the request of the party promising. And in Goldsby v. Robertson, 1 Blackf., 247, a special verdict, which set forth the consideration in the same form, was held insufficient to authorize a judgment.

In the present case, the declaration simply avers that the promise was made for a good and valuable consideration. It does not undertake to state in what that consideration consists, and is, therefore, more clearly defective than those in the cases cited. If it is sufficient for the party to state generally that the' defendant promised, for a valuable consideration, I see no reason why he should not be allowed to state, in terms but a little more general, and without mentioning a consideration, that the defendant made a valid contract, since a valid contract necessarily includes a sufficient consideration; and this form of declaration would give the Court quite as much information on the subject as the other. Whether there was a consideration sufficient to1 support the promise, is a conclusion of law to be drawn from the facts; but the - pleader has omitted the facts entirely, and averred only the conclusion of law.

It is true that, in declaring upon a contract in writing, which, upon its face, purports to be for value received, . the instrument has been allowed to be set forth according to its terms, and the recital held a' 'sufficient allegation of consideration. — Jerome v. Whitney, 7 Johns., 323; Saxton v. Johnson, 10 Johns., 418; Walrad v. Petrie, 4 Wend., 575. But the principle of those cases does not apply to the present, which must fall within and be governed by the general rule.

It is clear, therefore, that this declaration, if demurred 'to, could not have been sustained. It remains to be seen whether the defect therein can be aided by the verdict which has been rendered.

It is objected by the plaintiff in error, that the verdict cannot aid, because the evidence upon which the verdict was rendered was objected to, and the verdict, it is argued, cannot reach back and obviate an objection which was good ;when made. If a declaration is so defective that judgment rendered upon it would be arrested —in other words, if it shows no cause of action — the ’Court might, perhaps, entertain and sustain the objection in any stage of the cause. But if the declaration is sufficient to sustain a judgment, I am of the opinion 'that any objection to it, either in form or in substance, is not to be taken on the trial of an issue of fact. In Haynes v. Brown, 36 N. H, 566, it was held that a declaration which would be bad on demurrer, but the defects in which would be cured ‘by verdict, could not be objected to on motion for a non-suit. In Clark v. Dales, 20 Barb., 42, a motion for non-suit was made on the ground that the declaration did not contain sufficient facts to constitute a cause of action. But, as the omission in the declaration was of a fact which was to be inferred from the facts stated, so that the verdict would cure the defect, the Court held the defendant too late with his objection. And in Kelly v. Kelly, 3 Barb., 420, the Court says: If the declaration was defective, its sufficiency ought to have been tested by demurrer, :and not on a motion for a non-suit. The Court below committed no error' in refusing to non-snit the plaintiff on account of any defects alleged to be in the declaration.” See, to the same effect, Brown v. Harmon, 21 Barb., 508, and Hall v. McKechnie, 22 Barb., 244.

We. are now to see whether the defects in this declaration are so serious that it cannot be supported by the verdict rendered. In 2 Saund. Rep., 228, Note 1, the rule by which to distinguish such defects in a declaration as are, and such as are not, cured by a general verdict for the plaintiff, is stated as follows: “ When there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the Judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission is cured by the verdict at the common law.” The rule is stated in similar terms in. 1 Chit. Pl., 673, and in Gould's Pl., Ch. 10, §13, and it is incorporated in our statutes — Comp. L., §4419, subdiv. 8.

In Hitchcock v. Page, 1 Root, 293, it was held that, where no consideration was alleged in a declaration in assumpsit, the defect was not cured by verdict. I take this to be on the ground that, as the declaration only alleged a naked promise, and as the issue joined upon that would not necessarily require, upon the trial, proof of any consideration, the Court would not be at liberty, to presume that any such proof had been presented to the jury. To the same effect is Whitall v. Morse, 5 S. & R., 358.

But, although the allegation of consideration in this, declaration would be insufficient on demurrer, or to sustain a judgment by default, I am of the opinion that if may be1 held sufficient after verdict. At that stage of the cause, the Court looks at the issue actually made, to see if it can be fairly presumed that the evidence necessary to establish a case has been given under it, and if so, the Court is to make that presumption, and sustain the verdict. The declaration in this case does aver a consideration. The defendant, who had a right to insist that that consideration should be specifically set out, contents himself with pleading the general issue. I think it doing him no injustice to hold that he thereby waived his right to a more specific allegation, and consented that the plaintiff might introduce his evidence of consideration under the declaration as it stood. Had the pleadings put in issue a mere nudum pactum, the Court could not infer that a legal contract had been proved. But to infer proof of a sufficient contract here, is not .going beyond the issue which has been framed, however defective that issue may be; and I, therefore, consider it our duty to sustain the judgment.

The judgment of the Court below should be affirmed, with costs.

Christiancy J. concurred.

Campbell J.:

I concur with my 'brother, Cooley, in' his views upon the case. I reserve my opinion upon the question whether an absence of any allegation of consideration would be fatal after verdict, without previous objection.

Martin Ch. J. was absent.


author: Cooley J.:

text:
    Amasa B. Gibson, Administrator of Emma E. Howells, v. Daniel B. Hibbard.

      'The Stamp Act.— A person being tbe bolder of a draft drawn in August, 1868, made a gift of it, causa mortis, to ber mother, and, after ber death, her administrator, treating the draft as void for want of requisite stamp, brought suit against the drawer for the original consideration. The drawer, defending in the interest of the donee, produced the draft on the trial and placed the requisite stamp upon it in pursuance of the act of Congress of June 30, 1864; — Held, That the 'draft was thereby rondered valid from its date, thus making said gift effective, and that plaintiff could not recover.

      Right to avoid one’s contract, not property — Stamp Act. — The right to avoid one’s contract because of his own non - compliance with a statutory requirement, cannot be considered as property, and hence said act of Congress permitting a stamp to be affixed to an instrument subsequent to its execution, thereby rendering it valid, is not void as being in conflict with the provision of the constitution which forbids that any person shall be deprived of property, etc. except by due process of law.

      Heard April 13.

      Decided April 26.
    Error to Jackson Circuit.
    The facts will be found sufficiently stated in the opinion of the Court.

      Johnson & Higby, for plaintiff in error:
    By the laws of Congress the check in question required a three cent stamp, and not being- so stamped, it was void.
    And the first question is whether the giving of the paper by the deceased was a good gift — causco mortis.

    One of the requisitions of a gift ccmsa mortis is, that the subject of the gift should be delivered. And a draft, note or bond is upheld ^as a gift, because they operate as an assignment of the money secured, and furnish the means of obtaining it; but the check in question being void at the time of the gift, for want of a proper stamp, it neither operated as an assignment of the debt, nor. did it furnish the means of obtaining the money.— Harris v. Ciark, 3 N. Y., 93; Parish v. Stone, 14 Pick., 198; Craig v. Craig, 3 Barb., Ch. R., 76; Fink v. Cox, 18 J. R., 145; Ward v. Turner, 2 Vesey Sen., 431; Miller v. Miller, 3 P. Wms., 356; Duffield v. Elwes, 1 Sim. and Stew., 243; Noble v. Smith, et al., 2 J. R., 52.
    The next and only other question in this cause, is, what was the effect of affixing a stamp on said check at the trial of the cause?

      The one hundred and sixty -third section of the act of Congress approved June 30th, 1864, provides, in substance, that no writing which had been theretofore signed or issued without a stamp, or with an insufficient stamp, should be used as evidence until a legal stamp shall have been affixed, and the person desiring to use such writing in evidence is authorized to affix the stamp Required.
    It is conceded, that the check in question comes within the provisions of this law, and could be made a valid instrument by affixing a proper stamp. But we submit that it would not. have the effect to change the title. If it belonged to Mrs. Tyson after the stamp was affixed, it was hers before. And if it was hers before, it became so by virtue of the gift, or by virtue of the foregoing enactment.
    We have attempted to show that nothing passed by the gift. The ninety-fifth section of the law of July, 1862, makes all instruments without a proper stamp invalid, and without effect, and is distinguishable from the English revenue laws in that respect. — See Edwards on the Stamp Act, p. 10.
    This check then had no inherent properties at the time of the gift. It had none at the commencement of this suit. Our right of action was then perfect. If we lose our right of action by the act of 1864, it is because that act is to have a retrospective effect, so as to take from us our vested right. If such is the intention of the law, or such its legal effects, it would be clearly unconstitutional. — See Dash v. Van Vleeck, 7 J. R., 477.

      Bennett & Bancker, for defendant in error:
    The act of Congress approved June 30, 1864, section one hundred and sixty-three, “Authorizing a proper stamp to be placed on said check,” and the law in that respect having been complied with, renders the check valid from its inception.
    This act not only provides that instruments unstamped, or with deficient stamps, shall not be used in evidence until properly stamped, but also provides that no instrument, document or paper, made, signed, or issued prior to the passage of this .act, without • being duly stamped shall for that cause, if the stamp 'required be subsequently affixed, be deemed invalid and of no effect.
    It is a general rule that penal and revenue acts are to be construed strictly — a liberal interpretation being given to words of exception. — Edwards Stamp Act, p. 12.
    The interpretation ought to be dependent upon and have regard to the obvious meaning and intention of the Legislature. — Ib. p. 13, and cases cited.

    With such construction, and by fair intendment, we deem the conclusion of the above proposition fully warranted, and the . decision that, “ If an instrument is properly stamped after proceedings have begun it will be good, ab initio,” contained in Brown v. Savage, 5 Jurist, N. S., 10, 20 ed. Stamp Act, 237, applies.
    By an examination into the occasion of the passage .of the act of Congress of June 30, 1864, two conclusions appear: 1. That the statute was intended to remedy the injmious operation of the previous rule declaring unstamped paper invalid; 2. That to give the statute a different construction than that claimed in ■ our second proposition, would be necessarily productive of practical inconvenience to the community, and therefore to be rejected.
    The act is remedial and should be construed favorably. '
   Cooley J.:

Emma E. Howells being the holder of a draft drawn by defendant on a banking firm in Jackson for $600 at thirty days, dated August 10, 1863, made a gift of it causa mortis to .her mother, Mrs. Tyson, the validity of which is disputed on the ground that the draft was void at the time of its inception and of the attempted gift.

At the time it was drawn the draft had placed upon it only a two cent revenue stamp, while the law then in force —12 U. S. Stat. at Large, p. 720, §6 — required one of three cents, and another provision — Ibid., 475, §95 — made the instrument invalid and of no effect if a sufficient stamp was wanting.

Treating this gift as invalid for the reason stated, and the draft as void,- the plaintiff, as administrator ' of Emma E. Howells, brought this action against Hibbard to recover on the consideration for which the paper was given. Hibbard defended in the interest of Mrs. Tyson, claiming that the debt had been transferred by the gift; and on the trial the draft was produced, a proper stamp placed upon it, and cancelled by defendant’s counsel, whereupon the Court rendered' judgment for defendant.

The act of Congress of June 30, 1864, — Laws of 1863-4, p. 305, §163--provides that “no instrument, document or paper, made, signed, or issued prior to the passage of this act, without being duly stamped, or having thereon an adhesive stamp, or stamps, to denote the duty imposed thereon, shall, for that cause, if the stamp, of stamps required shall be subsequently affixed, be deemed invalid and of no effect.”

It is contended on behalf of the plaintiff that as the draft under the act of Congress was void at the time the gift was made, the gift itself was necessarily void, and could neither operate as an assignment of the debt, nor furnish the means of' obtaining the money. This being so, it is urged that the statute subsequently passed cannot constitutionally have a retrospective effect and make the paper good from its inception.

Before we are at liberty to declare an act of Congress invalid when it relates to a subject falling within the province of the National Government, we must find something in the National constitution with which the act comes' in conflict. As the constitution does not prohibit the passing of retrospective laws, except when they are of the class technically known as ex post facto, Congress may unquestionably pass them even though private rights are affected thereby, unless they are invalid for some other reason than their retrospective character. Here, however, it is insisted that the act takes away a vested right; and although we are not pointed to the clause in the constitution which would be thereby violated, we must find it, if anywhere, in the provision which forbids any person being deprived of property except by due process of law.

The question of the validity of this draft would arise primarily between the drawer and the holder. The drawer might have insisted upon its invalidity if he saw fit to do so. But I do not understand that any person has such a vested right to have his contract declared void for want of compliance with some statutory requisite as will preclude the Legislature from dispensing with the requisite and affirming the contract which he has attempted to make. A right to avoid one’s contract because the party himself has neglected to perform the duty, he owed to the Government in respect to it is not “property,” and the contractor is not in a position to complain, when, for the furtherance of justice, the Government allows the other party to perform the duty •and hold him to his contract. Retrospective laws of a similar character are by no means uncommon, and where they only give effect to the intentions of the parties they are not often unjust. — See Satterlee v. Matthewson, 2 Pet., 380; Wilkinson v. Leland, Ibid. 627.

And it would be difficult to imagine a law of the kind, less - objectionable than this. The purpose of the original act was to enforce, by a penalty, the payment of national dues. In many cases the law operated harshly upon persons not yet accustomed to the new mode of ..doing business. The subsequent act, instead of operating unjustly upon any one, simply relieved the holder, of the paper from the penal consequences on the proper stamp being affixed. Instead of being an attempt t© interfere with private rights, it was in the nature of a waiver by Govérnment j. of a penalty which had been affixed for reasons of State policy.

If Congress could lawfully make the draft valid from its inception, the legal consequences must follow as if the proper stamp had then been affixed. The administrator of Emma E. Howells has no more a vested right to insist upon the invalidity of her gift, than Hibbard has .to make the same claim in respect to his draft. The act of 1864 is, in its terms, clearly retrospective, and I think it covers the whole case, and renders the decisions, cited to the point that pa gift of an invalid paper cannot operate as a transfer of a debt, entirely inapplicable.

I think the judgment of the Circuit Court was correct, and that it should be affirmed with costs.

The other Justices concurred.


text:
    Frederick J. Lee v. William Lake.

      Case made showing evidence not all embraced. — 'Where, in a case made after judgment, it is apparent on its face that some evidence was given on the trial below, which is not embraced in the record, the Court will not hear the case on such record, but will remand it for correction.

      Heard, and decided May 2.


text:
    Joseph E. Beebe v. Absalom Young, and others.

      Appeal in Chancery — return ¿o.— The statute — Laws of 1858, p. 5 — requiring the return to an appeal in Chancery to be made to the nearest Clerk’s Office, is merely directory; and an appeal will not bo dismissed because the statute • in this respect is not complied with.

      Chancery appeal bond — power of Court to permit the filing of new one. — A Cham eery appeal bond should have at least two sureties; but if it is filed with only one, or is defective for any other reason, the Court has power under the statute — Compiled Laws, §4542 - 3 — to permit a new hond to he filed, or an amendment of the one already giveD.

      Heard April 12.

      Decided May 2.
    Motion to dismiss an appeal in Chancery.

      G. T. Gridley, for appellee.

      -Johnson & Higby, for appellant.
   Cooley J.:

A motion is made to dismiss an appeal in Chancery in this case,- on the ground: 1st. That the return to the appeal was made by direction of the solicitors for the appellants to the office in Detroit, instead of the nearer one at Lansing, as required by the 'statute; and 2d. That the appeal hond is executed by one surety -only.

The first ground we do not think sufficient. The statutory provision requiring the return to be transmitted to the nearest Clerk’s oflice is not designed for the protection of the rights of parties, hut only for the orderly transaction of the business of the Comt; and it is, therefore, to be regarded as directory only. The cases of Garlock v. Ontario Bank, 1 Wend. 288, and Cutler v. Rathbone, 1 Hill, 204, are directly in point, and this Court in Garratt v. Litchfield, 10 Mich., 451, refused to dismiss an appeal in Chancery where a return had not been procured within the time limited by the statute. The reason of that decision is applicable here.

The objection to the bond we think well taken. The statute requires a bond with sufficient sureties; and a single surety does not answer its demands. — Van Wezel v. Van Wezel, 3 Paige, 38; North American Coal Company v. Dyett, 4 Paige, 273. — And as the statute provides that unless “ such ” bond shall be filed within the time lim: ited no appeal shall be allowed, wo must dismiss the appeal unless we are authorized to permit an amendment or to suffer a new bond to be substituted— Cuddelback v. Parks, 2 Green, Iowa. 148; Ex parte Chryslin, 4 Cow., 80.

By §4542 of the Compiled Laws, it is provided that: “ "Whenever a bond is or shall be required by law. to be given' by any person in order to entitle him to any right or privilege conferred by law, or to commence any proceeding, it shall not be necessary for such bond to conform in all respects to the form thereof jn-escribed by any statute, but the same shall be deemed sufficient if it conform thereto substantially, and do not vary in any matter to the prejudice of the rights of the party to whom or for whose benefit such bond shall have been given.”

The next section provides that “Whenever such bond shall be defective in any respect, the Court, officer, ox-body who would be authorized to receive the same, ox-to exxtertain any proceedings in consequeixce of such bond if the same had been perfect may, on the application of all the obligors therein, amend the same in any respect, ox- may, on the application of the person x-equired to give such bond allow a xxew one to be substituted in the place thereof, bearing date at the time when such bond was required to be given, and such bond shall, thereupon, be deemed valid froxn the time of the execution of such defective bond.”

The terms of these sections are broad enough to include the case before the Court, and to allow either an amendment of the bond already given by the-addition of another surety, or the substitution of a new bond. The sections are copied from the Revised Statutes of New York, except that the second has been enlarged so as to allow a new bond to be substituted, where' the New York Statute only authorized a bond already given to be amended. — 2 R. S. of N. Y., p. 556, §33, §34.— In Potter v. Baker, 4 Paige, 290, an appeal bond in Chancery was held amendable under these sections, and in Van Slyke v. Schmeck, 10 Paige, 301, they were also recognized as applicable to a bond given on an appeal from a SmTogate’s Court to the Court of Chancery. Both these decisions were made before the provisions in question were incorporated into our .statutes, and we have no reason to suppose that the Legislature in adopting these sections intended them to have a less comprehensive effect than they had in the statutes of New York. We think them applicable to this case, and that the' appellants are entitled to the benefit of them if they desire it. By the express provisions of the second of these-sections a new bond given under it will relate to and have effect from the time when the defective bond was executed.

The motion to dismiss the appeal will, therefore, be granted, unless the appellants shall, within forty, days from this day, execute a bond to the appellee* with sufficient sureties, to be approved by the Circuit Judge, or Circuit Court Commissioner, in the form reqtiired by the statute, and shall place the same on the files of the Court, to stand as a substitute for the defective bond already filed. And if such bond shall be so executed, approved and filed, the motion will be denied.

But as the appellee has been regular in his motion the appellants must pay costs.

Christiancy and Campbell JJ. concurred.

Martin Oh. J. was absent.


text:
    William Holt v. The People.

      <Challenge of jurors — statute in relation to — when error in decision open to review.— The distinction between challenges of jurors for cause and for favor is practically abolished by the statute, (Comp. L., §4400,) all challenges being now for cause, and to be tried in the same manner; and when there is no dispute about the facts upon which a challenge is based, the ^ decision of the question is purely one of law, and open to review on exceptions.

      Challenge in criminal cases — doubts of impartiality. — In a criminal case, upon the challenge of a juror, if the examination leaves a reasonable doubt of his impartiality, the defendant should have the benefit of the doubt, and the juror bo excluded.

      Jurors presumed qualified. — A person callod as a juror is.presumed to be qualified and impartial, and the party challenging assumes the burden of proving the contrary, and does not relieve himself of that burden until .he has made out a prima facie case, or, in criminal cases, such a case as leaves the juror’s impartiality in reasonable doubt.

      •Opinion as cause of challenge. — The law does not require a juror to be entirely unimpressed with any opinion as to the guilt or innocence of the person on trial, but simply that he shall not have an opinion of such fixed and definite character as to leave a bias on his mind that will preclude his giving duo weight)to the presumption of innocence.
    Whore, in a criminal case, a juror, being examined as to his competency, said, “I have formed a partial opinion as to the guilt or innocence of the prisoner, from rumors heard in the streets, but not a positive opinion;” — Held, That .such statement did not establish the juror’s incompetency.

      Heard April 28.

      Decided May 2.
    Error to the Recorder’s .Court of Detroit.

      J. Logan Chipman, for plaintiff in error,
    cited: 16
    N. Y., 501; 1 Arch. Cr. P. & P., (Waterman’s Notes,) 551; People v. Bodine, 1 Denio, 307; Ex parte Vermilyea, 6 Cow., 562; People v. Vermilyea, 7 Cow., 121; Com. v. Knapp, 9 Pick., 499; People v. Mather, 4 Wend., 241; Trimble v. State, 2 Greene, 404.

      G. V. M. Lothrop, for the People,
    cited: 1 Burr’s

      Trial, 415; Durell v. Mosher, 8 Johnson, 445; People v. Vermilyea, 6 Cow., 562; S. C., 7 Cow., 121; People v. Mather, 4 Wend., 233; People v. Bodine, 1 Denio, 308; People v. Honeyman, 3 Denio, 123; Freeman v. People,
      4 Denio, 34; Smith v. Eames, 3 Scam., 77; Gardner v. People, 3 Scam,, 88; McGregg v. State, 4 Blackf., 104; Bradford v. State, 15 Ind., 347; Thomson v. People, 24 Ill., 60; Commonwealth v. Webster, 5 Cush., 297; Moses v. State, 10 Humph., 458; S. C., 11 Humph., 232; State v. Spencer, 21 N. J., 198; Sam v. State, 13 Sm. & M., 194; State v. Potter, 18 Conn., 171; Osiander's Case, 3 Leigh, 785; State v. Williams, 3 Stew., 465; State v. Benton, 2 Dev. & Bat., 213; State v. Davis, 29 Mis., 397; Rex v. Edmunds, 4 B. & Ald., 471.
   Cooley J.:

The defendant having been convicted, in the Recorder’s Court of Detroit, on an information for murder, removes the case to this Court for review upon exceptions. The only question which the record presents is, whether the Circuit Judge holding- the Court was correct in overruling a challenge to a juror. It appears, from the bill of exceptions, that “ one Frederick II. Eberts was called, who was examined, upon his oath, relative to his- .competency to sit on the panel as a juror, and, upon his oath, did say: ‘I have formed a partial opinion as to the guilt or -innocence of the defendant, from rumors heard in the street, but not a positive opinion;’ whereupon said respondent, by his counsel, did then and there challenge said Eberts for cause; and thereupon the said Circuit Judge ruled that the said Frederick II. Eberts was competent to sit as a juror on the panel for the trial of the said issue.”

It is argued by the counsel for the People, that the challenge to Eberts must be regarded as a principal challenge, and not a challenge for favor; that a chak lenge for favor, though triable under our statute by the Court, presents for decision a question of fact, and that the conclusion arrived at caimot be reviewed, except so far as some question of law may be involved, which was distinctly presented to and passed upon by the Court below, and which is now to be found in the record And as it does not appear by this record that any ruling upon points of law was required of the Court below, the defendant, if he insists that his challenge is for favor, has no standing in this Court. And, as a cause for principal challenge, the statement' of the juror, it is said, is insufficient, because it does not, in itself, show such a state of mind — such absolute bias or favor — as disqualifies him.

Section 4400 of the Compiled Laws provides, that “ in all cases of challenge for cause, such cause shall be immediately assigned, and the truth thereof shall be determined by the Court.” This provision is in harmony with many others in the statutes, which have referred to the Court the trial of contested questions of fact, either absolutely, or at the option of the Court or of the parties. Unlike other provisions, however, the one in question does not point out any mode by which the decision of the Court, on any question of fact, can be reviewed by an appellate tribunal, nor does it require the Court, on the demand of the party, to find the facts in writing, with the conclusions of -law therefrom, that it may be seen whether those conclusions are legitimate, or whether the error, if there be one, is one of fact or of law.

It is plain, we think, that, by this statute, the distinction between challenges for principal cause and to the favor is practically abolished. All are classed under the .same general head of challenges for cause, and all are tried in the same 'manner. It is true that some of them will be of a character to present a naked question of law, while others will require the Court to enter upon the examination of disputed questions of fact; but the Court, in its. decision, only declares that a sufficient cause for challenge does or does not exist, and is not required .to classify it according to any previous distinctions. The sufficiency of the cause will still be determined by common law rules; but neither the party, in making his challenge, nor the Court, in passing upon it, has any regard to the 'former classification.

If, as suggested by the counsel for the People, there may be difficulties in the way of 'a review of decisions, on questions of fact, we do not think those difficulties, are to be met with in a case like the present. Here the juror was himself placed upon the stand, and' a single question put to him. It is upon his reply to that question that the Judge’s decision was based. The facts were undisputed, and the question of their sufficiency, as a cause for challenge, was purely a question of law. The decision of the Judge upon that question is as fairly presented for review by the exception thereto.as if the Judge had proceeded to find the facts in the words of the juror, and had then spread upon the record his conclusion that the state of mind in the juror thus found was not, as matter of law, a ground of disqualification.

This brings us to the- main question in the case: whether the cause shown was sufficient. And, for the investigation of this, some principles were laid down by the counsel for the defendant on the argument, in the light of which it is urged that the examination should be made.

It is first said that the presumption of the innocence of the defendant is to avail him in all these preliminary inquiries, in so far that he is entitled to the benefit of all doubts. We concede that, on the question of guilt or innocence, the inquiry is to be conducted with this presumption prevailing; and that the Muden of proof is upon the prosecution to overcome it, as respects all the facts necessary to constitute the offence. And we also think that, in criminal cases, whenever, after a full ex-animation, the evidence given upon a challenge leaves a reasonable doubt of the impartiality of the juror, the •defendant should be given the benefit of the doubt.

But it must be borne in mind that a person called as a juror is presumed to be qualified and impartial, •until the contrary is shown. The challenging party takes upon himself the burden of proving the disqualification, and he does not relieve himself of that burden until he has made out a prima facie case, or, tin criminal. cases, such a case, at the least, as leaves the juror’s impartiality in reasonable doubt. It is not sufficient for him to prove facts, from which vague inferences of bias or favor can be drawn, and then demand that his adversary shall be concluded unless he rebuts those inferences by countervailing testimony.

It is secondly said that, in order to be qualified, a .juror must come to the case with a mind entirely unimpressed with any opinion in respect to the guilt or Innocence of the accused; and we are asked whether the existence of an opinion, to any degree, is consistent with the fairness and impartiality which the law demands in a juror. •

We find nothing in the authorities, nor are we able •to discover any reason, favoring the rule thus indicated. To require that jurors shall come to the investigation of criminal charges with minds entirely unimpressed by what they may have heard in regard to them, or entirely with-out information concerning them, would be, in many cases, to exclude • every man from the panel who was fit to sit there. With the present, means of information, the facts ■or rumors concerning an atrocious crime are, in a very few horns, or days at the farthest, spread before every man of reading and intelligence within the district from which jurors are to be drawn — and over the whole country, if the atrocity be especially great. And there are some; crimes so great and striking, that even the most ignorant will have information and impressions in regard to' them; and the rule, as stated, applied to such cases; would render the impaneling of a jury for their trial impossible, and make their very enormity a complete protection from punishment.

Without attempting or désiring to lay down rules for all cases, it is sufficient for us to say that the showing, in the present case falls far short of establishing cause for challenge. The juror is shown to have formed a partial opinion, but not a positive opinion. This opinion was not based upon anything he had himself' witnessed, or from information derived from those who claimed to know the facts, but upon street rumors. Now, when a person says he has formed, from street rumors, a partial, but not a positive opinion, we think he is to be understood as- speaking only of those impressions which every one receives insensibly when a charge of crime is made, but which, so far from amounting to settled conviction, do not in the least preclude an impartial examination of the facts, when afterwards presented in the form of legal testimony. We understand him to speak of -that class of impressions which were held by Chief Justice Marshall to be no ground for excluding a juror: “ Those light impressions, which may be fairly supposed to yield to the testimony that may be offered,” and “which may leave the mind open to a fair consideration of the testimony” — not of “those strong and deep impressions, which will close the" mind against the testimony that may be offered in opposition to them — which will combat that testimony, and resist its force.” —1 Burr's Trial, 416. See, also, Osiander's Case, 3 Leigh, 785; Smith v. Eames, 3 Scam., 78; Bradford v. State, 15 Ind., 851; State v. Potter, 18 Conn., 174-5.

But it is not necessary to enter upon a careful examination and analysis of this statement of the juror, in order to ascertain the precise meaning he intended to, convey, since it is' clear the defendant has failed to show that the opinion formed was of that fixed and definite character which would leave such a bias upon his mind ;hs to preclude his giving due weight to the presumption of innocence with which the law surrounds the accused. “ The mere statement of a juror, that he has formed an opinion, is . not sufficient to disqualify him.” — Moses v. State, 10 Humph., 458. Further inquiries might possibly have shown that it was of a nature to constitute disqualification; but the defendant did not see fit to make them, and the prosecution was not called upon to enter upon the investigation if the defendant left it imperfect, and before he had made out a prima facie cause for exclusion. Where the answer of the juror is fairly susceptible of a construction 'consistent with his impartiality, the challenging party, if he claims that a different construction should be put upon it, should follow up his inquiries, so as to elicit the real facts; and he cannot reasonably require that the juror should be excluded on thq ground that the examination, which he has chosen to leave imperfect, does _ not exclude all inference of bias.

We think the exception not well taken, and that .judgment should be given on the verdict.

Cheistiancy and Campbeir JJ. concurred.

Martin, Ch. J. was absent.


text:
    The People, on relation of Francis Darrow, v. Zephaniah B. Knight.

      !Information —• motion to dismiss by relator. — The fact that an information was filed by the Attorney General, on relation of the claimant to an office, without his knowledge or authority, will not entitle the relator to have such information dismissed.

      Where, in such case, the want of authority for joining the relator was established, permission of the Court was granted him to withdraw from the proceeding.

      Heard April 26 and 27;

      Decided May 2.
    Motion by tbe relator in an information in tbe nature of a quo warranto, to dismiss the same. The facts upon which the motipn was based are stated in the opinion of the Court.

      M. JE!. Orofoot and A. J3. Maynard, for the motion.

      Albert Williams, Attorney General, and <?. V. JUT. JOothrop, contra.

   Campbell J.:

The relator moves to have the information in this cause dismissed, on the ground that it was filed without his knowledge or authority. It appears that it was filed upon the supposition of his comisel that he was authorized to act on his behalf; but, upon the whole facts, there is no room to doubt that a mistake occurred on this head. The good faith of the parties acting is entirely beyond dispute. The Attorney General, however, declines to withdraw the suit, claiming a right to prosecute it officially, without the consent of the relator.

The statute does not require leave of this Court to entitle such an information to be filed. It provides that the Attorney General may inform on his own relation, or on the relation of any private party.- — -2 C. L., §5291. In either case, he may, if he sees fit, sot forth the name, of the person entitled to the office. — 2 C. L., §5298. In such case, the Court, if judgment be against the defendant, may give judgment on the right of the party alleged to be entitled, or not, as justice may require. — 2 C. L., §5294. If several persons claim title, to the same office, he may make them all defendants if he pleases, in order to try their respective rights. — 2 C. L., §5809; People v. Phillips, 1 Denio, 388.

While the law recognizes the existence of private rights in .the emoluments of office, which will be protected as far as possible, yet. this proceeding is not, in its nature, chiefly designed for any such purpose. That purpose is only incidentally connected with the proceedings. It is the theory of the law that offices are designed for the public good, and not for private emolument, and that the tenure of them by the persons legally elected or appointed is a matter mainly of public concern. It never contemplated that the public interest should be controlled by private action. The Attorney General does not act in these matters as a mere private agent. He may always interfere on his' own volition. Whether he can be compelled to do so against his will, or whether, in case of his refusal, a private person can proceed by other means than' those provided by the statute, we need not now consider. In tins case, he has seen fit to commence proceedings, and if the person named as relator desires to have any voice in the matter, or any share in conducting the controversy with the defendant, it must be done in the present suit, if this suit is to be. retained in Court. He cannot interfere with the Attorney General in his official duty, but the Court would allow him to co-operate in such manner as not to embarrass th course of justice.

If he does not desire to remain in the position of relator, but chooses to withdraw from the suit, we shall, under the peculiar circumstances of the case, permit him to do so, and we, therefore, abstain from expressing any opinion as to whether he would be individually responsible for costs should he remain in that position. But as the law allows the Attorney General to act alone, and. he can proceed to the trial and judgment as sole informant, and by that judgment the title of the defendant will be definitely settled against all persons, it is clear that the person named as relator cannot have any claim to do more than withdraw himself. He cannot oust the Attorney General’s proceedings, when the Court itself has no power to prevent that officer from commencing them.

We must deny the motion to dismiss. The relator may, within form days, elect to withdraw from the case, and enter such election on the common rule hook, or in open Court. Should he do so, the information will he amended by striking out his name as such in the introduction. The averment of his .title to the office will remain, unless the Attorney General shall, in that event, desire to strike it out.

Christiancy and Cooley JJ. concurred.

Mastín Oh. J. was absent.


text:
    The People, on relation of A. H. Schmittdiel, v. The Board of Auditors of Wayne County.

      Services rendered for counties within meaning of the constitution. — The provision of the constitution (Art. 10, Sec. 10,) that “the Board of Supervisors, or, in the County of Wayne, tho Board of County Auditors, shall have tho exclusivo power to prescribe and fix the compensation for all services rendered for, and to adjust all claims against, their respective counties, and the sum so fixed or defined shall be subject to no appeal,” does not embrace those cases where charges have been laid on counties simply as a fair way of apportioning the public debt, Jand^ where no benefit accrues to them in their corporate capacity.
    Where the law has, in such cases, pointed out any other mode of adjustment or regulation of salaries or compensation, than that by the County Boards, tho latter have no right to review, but must allow and pay them as thus adjusted.

      Clerk of Police Court of Detroit — his services not rendered for the county. — Tho services of the clerk of the Police Court of the City of Detroit are not . “ services rendered for Wayne County” within tho meaning oX Section 10, Article 10 of the constitution, and, therefore, the provision of the statute, (Laws of 1863, p. 332,) empowering the Common Council to prescribe the salary of such clerk, is not in conflict with said section of the constitution, and is* valid.

      Heard April 27.

      Decided May 2.

      Motion, for a mandamus.
    The facts appear in the opinion of the Court.

      J. Logan Ghipman, for the motion.

      Q. V. Lf. Lothrop, contra.

   Campbell J.:

By the Laws of 1863, p. 332,. the Common Council of Detroit were empowered to appoint a clerk to the Police Court, and to prescribe his salary, which was made payable out of the County Treasury, in the same manner with that of the Police Justice — that is, to be allowed, raised and paid by the Board of Auditors as other county charges. The County Auditors refuse to pay the relator’s salary, (fixed by the Council at $1,000,) on the ground that no one Can fix its amount, under the constitution, but themselves. The clause of the constitution relied on for this interpretation is Article 10, Section 10, which declares that “the Board of Supervisors, or, in the County of Wayne, the Board of County Auditors, shall have the exclusive power to prescribe and fix the compensation for all services rendered for, and to adjust all claims against, their respective counties, and the sum so fixed or defined shall be subject to no appeal.”

The question presented is, whether the services rendered by this clerk are “ services rendered for Wayne County,” within the meaning of this clause.

The office of the Police Court is to perform, within the City of Detroit, the duties performed by Justices of the Peace in townships, in the examination and trial of offenders against the criminal laws of the State, the Police Justice and the clerk sharing between them the duties elsewhere performed by Justices alone. They are in no sense county officers; they are rather city officials, so far as place is concerned. Their duties relate entirely to the enforcement of criminal law, against offenders 'charged with violating the peace and dignity of the State, whose offences are committed in Detroit. ' The only circumstances which connect these officers with the. county, are the facts that offences are tried in counties, and that the officers are paid by the counties. But otherwise, the counties are no more ' directly affected than the State at large. They have no control over the appointment or conduct of justices, nor over the prosecutions themselves, .which are all conducted in obedience to State laws, and in which the county, as a public body, has no voice whatever.

Upon an examination of our State polity, before and since the adoption of the new constitution, it will be found that many charges have been laid on counties, as ■such, where no benefit accrued to them in their corporate capacity, but where it was, doubtless, deemed a fair way of apportioning the public expenses. It would be ■difficult to perceive what advantage a county derives from the civil proceedings between parties in the Courts •of Justice, or why, if there be any advantage, the services of the Judge, as well as of jurors and witnesses, ’ should not be deemed services rendered for the counties where they respectively sit. It is an advantage to have justice accessible to all, and to have evil-doers punished, but acts which do not affect the interests and security of the public at large have not usually been classed as ■crimes, (although the distinctions are somewhat arbitrary,) and the advantages in all these cases result to the community generally. We feel very sensibly the difficulty of ■classifying the services rendered to counties, as contra-distinguished from those which, although charged on them, are not rendered for their peculiar benefit; but the practical construction has, from the beginning, made .judicial proceedings an exception, or, rather, regarded them as not coming' within the former class. The fees of County Clerks, of Sheriffs, of jurors, and of witnesses, have been fixed by law from time to time. The services of the Recorder of Detroit, whose criminal jurisdiction covers the same cases examinable originally by the Police Court, are paid out of the State Treasury. Judges of Probate have a limit placed upon their salaries, which are payable out of the County Treasury, but not under the uncontrolled discretion of the county authorities. Justices of the Peace, in civil and [criminal cases, are paid by fees, and these are not only fixed by law, but in criminal cases are payable by the county. Most of the county officers perform services officially, for which they receive fees from private parties. The Register of Deeds, Clerks and Sheriffs derive their chief income from these sources, although the two latter officers have little to do except in connection with the administration of justice. And, as before suggested, if the county is interested in criminal proceedings, it is no less so in civil. In like manner County Treasurers, whose duties are more directly connected with the interests of the counties, are entitled to a per centage on moneys received by them independent of the county boards, as compensation for services regarded as rendered really to the State; while for services to the county their compensation must be prescribed by those bodies. These legal provisions are so numerous and so familiar that we do not deem it necessary to make citations on the subject.

There aré, on the other hand, many services rendered by county officers, and perhaps by some others, which have a direct bearing on county interests. Those services rendered by Clerks and others in keeping records, and attending meetings, and drawing and certifying papers relating to county business, are of this character. Such are also many, and perhaps most, services of the County Treasurer, Other cases will readily suggest themselves. The practical construction which has fixed or limited compensation in so many instances, as well where chargeable on the county' as in other cases, is based upon tangible reasons and good sense. It would be anomalous, to say the least, if the county authorities could •control the policy of the State within their limits by regulating or practically withholding the means of -employing the needful agencies. We cannot regard the -construction which has prevailed, as in the least degree •conflicting with the fair meaning or plain terms of the •constitution. Where the law has in these cases pointed •out any other mode of adjustment, or regulation of .salaries, or compensation, than that by the County Boards, the latter have no right to review them, and must allow and pay them as they have been already legally ascertained and liquidated. The case of The People v. Supervisors of Macomb County, 3 Mich. R., 475, lays down the correct rule on this subject.

Where the subject is not within the exclusive control •of the county officers, there is no constitutional provision which prevents the Legislature from placing the matter under the supervision of municipal bodies, as they have done in the present instance.

We think this a proper case for a mandamus. No costs, however, will be allowed, as the defence is in good faith, and the question a new and important one.

Cooley and Christiancy JJ. concurred.

Martin Ch. J. was absent.


author: Christiancy J.:

text:
    The People, on relation of James Whiting, v. William M. Connor.

      Quo warranto — default of defendant — final judgment. — Upon the default of defendant in an information in the nature of a quo warranto upon relation of the-claimant to an office, the Court can give a judgment of ouster, "but cannot ' determine the right of the relator to the office.

      Meard April 28.

      Decided May 2.
    Information in the nature of a quo warranto.

    This case was one of several in which, the defendant’s default having been entered, and more than four days thereafter having expired, the counsel for the relators moved for judgment in favor, of their right to the respective offices.

      G. TO J5T. JOothrop, for the relators.
   Christiancy J.:

In these several eases, over four days having elapsed since the default of the respective defendants was entered, the counsel for the relator claims final judgment as well in favor of the relator’s right to the respective offices as for the ouster of the defendant, the informations having set forth as well the right of the former, as the usurpation by the latter.

The statute — Rev. Stat., Chap 136, Sec. 4; Comp. L., Sec. 5294 — provides that “judgment shall be rendered upon the right of the defendant, and also upon the right of the party so entitled; or only upon the right of the defendant, as justice shall require.”

After careful consideration we have come to the conclusion that we cannot safely go, further upon default of the defendant than to give judgment of ouster against him. His default admits his own usurpation of, of intrusion into the office, but we do not see how his admission can be allowed to determine the right of the relator to tbe office. This is a question between the relator and the people, which cannot be safely left to' the admission of the defendant. From the fact that the defendant has no right to the office, it does not necessarily follow that the relator hag. The statute has furnished no means of trying the relator’s right upon default; and we have not been able to discover one fairly within the power of the Court, by which the question can be safely tried ex forte. Practically in these cases the judgment of ouster will probably accomplish the • object of the relators. The offices being vacated by the ouster, the relators will doubtless find no difficulty in taking possession. But if there be any defect in any relator’s title, the people will still be at liberty to test the question by the proper proceeding against, him.

Cooley and Campbell JJ. concurred.

Martin Ch. J. was absent.