author: Wing, J.

text:
    Lull et al v. Davis.
    In an action on tho case f°r flowing land, the declaration alleged plaintiff- was lawfully, seized in fee and possessed of the land flowed. Held, that the whole, avermept was material, and must he proved as stated. Held, also, that proq^ of plaintiff’s possession under a claim of title founded upon a deed, not emanating from the sqwoe of title, or traced hack to a person so claiming, did not raise a legal presumption of seizin in fee in the plaintiff; and further, that iff such possession was evidence of seizin, it was at most hut a hare presumption^ liable to he. overcome hjr other proof, as title in a third person.
    Error to Oakland Circuit Court. Davis brought an action of trespass on the case in the circuit court, against Lull and others, for flowing land. The declaration alleged Davis was lawfully seized in fee and possessed of the premises flowed. Plea, general issue, with notice of a prescriptive right in defendants to flow the land1 in question. From the ■ bill of exceptions accompanying the record, it appeared plaintiff, after giving evidence of the flowing, read in evidence two deeds, one from Gideon 0. Whittemore to plaintiff, dated April 13,1834, and the othei; from Luther Jones to plaintiff, dated January 25, 1839, each deed purporting to grant to plaintiff in fee a part of the premises, and together, covering the whole of the premises described in the declaration. There, was no evidence showing Jones’ or Whittemore’s title, or that they claimed the premises by deed from any one. It appeared, however, plaintiff had been in possession some ten years or more. Defendants,, after giving evidence to prove the prescriptive right claimed by them, offered in evidence a deed of the premises from the United States to Stephen Mack, dated September 19, 1820, and a deed for the same, from Mack to Solomon Sibley, dated September 20, 1822, and then proved the mill-dam, which occasioned the flowing, was built about the. time tlie land was conveyed by Mack to Sibley, and had been occupied and used for milling purposes from that time down to the commencement of the present-suit. The plaintiff then introduced a deed for one third part of the mill property, including the land bowed, from Sibley to Eurotas P. Hastings, dated April 12,1830; a deed for two thirds of the same property from Sibley to Stephen Mack, dated November 12, 1822; a deed from Daniel Le Roy, administrator on the estate of Mack, to Hastings, dated July 3, 1830; and a deed from Hastings to Samuel C. Munson, for the whole property; dated July 13,1831. These deeds were introduced by plaintiff to show a unity of possession in Munson of the mill property and land overflowed. Defendants asked the court, upon the evidence, to charge the jury the allegation in the-plaintiff’s declaration of seizin in foe was not sustained by the p>roof, and that they must find a verdict for defendants. The court stated to the jury, that if they believed the evidence in relation to the title and the possession, the allegation of seizin was- sufficiently proved. Defendánts excepted, and a verdict having been returned for plaintiff, and judgment rendered upon it, they sued out their writ of error.
    <7. Draper, for plaintiffs, in error,

      Stevens, for defendant, in error.
   By the court,

Wing, J.

The objection to plaintiff’s recovery assumes that the allegation contained in his declaration, that he is seized in fee and possessed, is a connected, entire statement, descriptive of a matter which is the foundation of the action; that it is so connected that no part of it can be. stricken out or regarded as impertinent or irrelevant; and therefore, as the entire statement is traversed by the defendant’s, plea; the plaintiff must prove it as made.

Dhe charge of the judge must be regarded as assuming,, either that the averment was divisible, and that the first portion of it was immaterial, or that, for the purposes of this action, proof of possession was evidence of a seizin in fee in the plaintiff.

It is an established rule governing in the production of evidence, that the evidence offered must correspond with and support the averments in the declaration or plea. This rule supposes the averments to be sp.ate:i;ial and; necessary.

In 1 Chitty’s Pleadings, 228, it is stated, that if a party take upon himself to state in pleading a particular estate, when it was only required of him that he should show a general or a less estate, title or interest, the adversary may traverse the allegation, and if it be untrue, the party will fail. Thus a ■ general freehold title, liberum tenementum, may be pleaded either in trespass or in an avowry in replevin, and under it the defendant may prove any estate of freehold either in fee or for life; but if he state, though unnecessarily, a seizin in fee of a particular estate or interest, and the other side traverse the allegation, it must 'be proved as stated. This is an instance of material matter alleged with an unnecessary detail of circumstances or particularity; The subject matter of the averment is material and relevant, and the evil is, that the essential and immaterial parts are so interwoven as to expose the whole allegation to a traverse, and the consequent necessity of proof to the full extent to which it is carried by the pleadings; Mr; Stephens, In treating upon this point, says, that though a less estate than a seizin in fee would have been sufficient to sustain the plaintiff’s case, yet, as ' the plaintiff, who' should best know what estate he had, had pleaded a seizin in fee, his adversary was entitled to traverse the title so laid; Steph; PL 248. See 1 Chit. Pl. 508 to 510, where it is said the general issue is equivalent to a traverse of every traversable fact.

In the case of Savage v. Smith, 2 H. Black, 1101, 1104, which Was an action of debt against a bailiff for extorting illegal fees upon a writ of fieri facias, the declaration stated a judgment and a fieri facias upothe judgment. The £. fa. was given in evidence, but not the judgment. The court held, that though it might be unnecessary to aver the judgment (5 T. R. 498), yet having been averred, it ought to be proved. Ld. Ch; J. De Grey expressly went on the distinction between immaterial and impertinent averments, and said the former must be proved because relative to the point in question. Gould’s PL 162. These terms immaterial or impertinent, though formerly applied to two classes of averments, are now treated as synonymous, per Best, J. 3 D. & R; 209. Immaterial oí impertinent averments are those which need neither be alleged, nor proved if alleged: unnecessary averments consist of matters which need not be alleged, but being alleged must be proved. 1 Greenl. Ev. 73, n. Rurther illustrations of the same rule may be found in 7 John. R. 321; 3 Day 283; 2 Saund. Pl. and Ev. 686.

The rule stated by Mr. Gould, in his work on Pleading, 162, would appear to confine the question to a matter of variance which can only occur in a matter of record, a written instrument or express contract. If the rule, as stated’ by 'Judge Gouldj'ds to bé understood as excluding an unnecessary connectedjaliegation in the statement of title or the foundation of the cause of action, then he would disregard the case of Savage v. Smith, which he cites and approves. But as the statement in the pleading in this case is in a point confessedly material, his rule can hardly be said to exclude this case; for in the same sense in which it was necessary to prove the averment of the judgment in Savage v. Smith, it is necessary to prove the averment of seizin ill fee in this case. In the case of Gwinnet v. Philips, 3 T. R. 645, Lord Kenyon says, There is no doubt, if a plaintiff undertakes to set out his title, he must set it out correctly; and in the ease of Williamson v. Allison, 2 East. 452, Lord Ellenborough says, with respect to What averments are necessary to be proved, I take the rule to be, that if the whole of the averment may be stricken out without destroying the plaintiff’s right of action, it is not necessary to prove it; but otherwise if the whole cannot be stricken out without getting rid of a part essential to the cause of action, for then, though the avermónt may be inoró particular than it need have been, the whole must be proved or the plaintiff cannot recover. This is an expression of the same doctrine that was laid down by Lord Mansfield in the case of Bristow v. Wright, Dough 665; This same doctrine is maintained and illustrated in 1 Greenl. Ev. secs. 51, 56, 57, 60 and 62; Phil. Ev. 206, 207, and the notes thereto, in Cowen and Hill. Many cases are referred to, and some that would seem to vary the rule, but it is manifest the judges do not intend to lay-down a new rule. That there should be some diversity of opinion-, arising mainly from the different views which courts may have taken of its application, is perhaps not singular; but, amongst all the cases, I do not find one in which it is stated that an averment descriptive of and limiting the title set up by tbe plaintiff in his declaration, as the foundation of his right Of recovery, need not be proved as made, or that any part of it may be stricken out. It will be found, by a reference to the sections cited from Greenleaf’s Evidence, that after analyzing the principles of pleading and evidence, and the decided cases upon the doctrine of impertinent and unnecessary averments, he fully and repeatedly affirms the position, that ail averment, such as the one in question, cannot he divided, but must be proved as made.

But it is said, proof of possession is evidence of seizin in fee, and supports the averment in the declaration. If so, the rule which we have, stated has no force. Seizin in fee may include possession. It is. of two kinds, seizin in deed, or, as Lord Coke terms it, a natural seizin, and seizin in law, or a civil seizin. The former is actual possession of a freehold, the latter a legal right to shell possession. Does the proof of possession, under a claim of title founded upon a deed which does not emanate from the source of title in this country, or is not traced down to a person so claiming title, raise a legal presumption of a seizin in fee in the person so in possession? Unless this presumption arises from proof of possession, it is not perceived how ’the fact of defendant’s having a deed from some one who is not shown to have had any title, can add any force to the proof of mere possession. The case of Smith v. Lorillord, 10 John. R. 339, is cited in suppoit of this position taken by defendant. That was an action of ejectment. • The plaintiff showed that he and his ancestors occupied the premisas in question previous to 1768 and down to 1775, and until driven out by the public enemy. Defendant proved his entry into the premises in 1795, some time after the public enemy had left, and his continued possession for fourteen years, and until action brought. Both parties failed in making out a paper title. Kent, J., held that the facts shown by plaintiff were prima facie evidence of right, and it was not necessary that a plaintiff in ejectment should in every case shbw a possession of twenty years, or a paper title, and that a possession for a less number of years would form a presumption of title sufficient to prut the tehant on his defence. He further adds: This presumption may be removed from one side to the other, toties quoties, until one p)arty or the other has shown a title which cannot be overreached, or prats an end to the dbetrine of presumption founded on mere possession, by showing a regular legal title or right of possession. It is said the action of ejectment is in truth an action of trespass. You may try the title, or not, but if a party does not think proper to ¡show a title, he may try nothing hut the right of possession.

lit the cases in 7 Wheaton 59, and 1 Cowen 613, the piresumpition bf séiziii ill fee wras not raised in support of averments in the declaration, but for the purpose of rebutting presumptions arising from the caso, made by defendant, who had attempted to shift the presumptions of law from the plaintiff’s case to his own. The case in Cowen was ejectment, and in many of its features it was similar to that in 10 Johnson. The case cited from ? Wheaton was a case from Connecticut, and was an action of disseizin, but as far as can be gathered from the ease, it would appear that the- averments in the declaration were the same as those in ejectment, and the case shows that the parties relied upon possession, and various presumptions of law arising from the case made. Neither of these cases presents a discrepancy between the averment and proof.

Another class of cases is cited, which arose under a statute in New York, in relation to forcible entries and detainers. In the case in 11 John. R. 504, 510, the indictment averred a seizin in fee in the relator from March 19, 1808, until 1811. The counsel for the people, in opening his case, proposed to show possession only, in relator. The judge held that the title was in question, and the people must give the same proof as in ejectment. Defendant entered under a sale on an execution against the relator. It was objected the people had not proved seizin in fee in relator. The court held, relator’s proof of possession was sufficient if he showed he was forcibly dispossessed, and that defendant could not set up title to defeat it, but must restore the possession wrongfully taken. The judge who finally gave the decision, says it was a mistake in saying the title was in question, and after citing 2 John. R. 98, adds, “the statute was made to prevent persons from doing themselves light by force.” In the case in 9 Wendell 50, the court refer to the statute of the state in which it is expressly provided that, “ in addition to the forcible entry and detainer complained of, the complainant should only be required to show that he was peaceably in the actual possession of the premises at the time of the forcible entry and detainer, or was in the constructive possession of the premises at the time of the forcible holding out.” This statute renders proof of seizin unnecessary, though it was required to be alleged. Nelson, J,, says, without the statute it would only have been necessary to show possession; and he cites the case in 11 Johnson. In a similar case, in 9 Wendell, 223, it was objected that seizin in fee was not proved as alleged; hut the court say, proof of possession is prima facie evidence of a fee. Whether this remark is based upon the case in 11 Johnson or the statute does not appear.

Under the peculiar phraseology of the New York statute, the court appear to regard the required averment of a seizin in fee as merely formal, and not the gist or point of the aetion.- The effort of the court in these cases appears to have been, to limit an indictment to a question of disturbance of possession. No authorities are .cited except cases of ejectment. These cases appear to be law in New York, in eases arising under the statute cited, though I do not find them referred to in any book-or case in connection with the subject of surplusage, or immaterial averments. It is conceded that there is less strictness of proof required in actions of tort than in actions on contract. On contract the plaintiff must prove his case as laid, whereas in tort he need only prove so much as gives him a good cause of action; and under their statutes the courts ef New York have permitted amendments when requested so to do, by striking out that .which would not occasion surprise to defendant 19 Wendell 541, 543. But were it competent to disregard that which might have been amended, the plaintiff’s ease would not be helped by such amendments.

The tract of land claimed by plaintiff formerly composed a part of a larger tract owned by Solomon Sibley in 1822, at which time the dam was built, which occasioned the flowing of which plaintiff complains. It was not divided from the mill tract until1 after 1831, at which period the whole "traet, including mills, dam and mill pond, was vested in Mun-son. Plaintiff got a part of his title in 1834, and the'rest in 1839. In the mean time, and from 1822, the water had flowed the same as at the trial Defendants shojved themselves to be in possession of the mill at the time the suit was commenced. By this proof defendants undertook to make out a prescription, by showing adverse possession upwards of twenty years, continued from Sibley down to them. To rebut this proof, the plaintiff shows title from the U. States down to Munson, 'in 1831, and then rests. He shows no title down to himself, but shows a deed from two persons not claiming through Munson. The land so purchased by plaintiff would appear to have been overflowed when he bought it, for the mill dam and pond were kept up, down, to the commencement of the action, by defendants and others. If so, could the plaintiff, by barely taking and keeping possession of the part not flowed, acquire a right to sue for disturbance to that of which defendants were in the occupation, and of which plaintiff could have no actual possession ? And would not the presumption of seizin in fee be as strongly raised in behalf of defendants as plaintiff? It therefore became necessary for plaintiff to show title, seizin in fee, which would draw- to it the possession, to overcome the defendant’s case. Then what would plaintiff gain by disregarding or striking out his averment of seizin in fee, since it was necessary for him to prove title — seizin in fee, to entitle. him to recover. This he failed to do.

But upon the supposition that proof of- possession was evidence of a, seizin in fee, it could be but a bare presumption, liable to be overcome by proof, as occurred in this case. First, the defendants showed adverse and continued possession of the premises from a period beyond the time when plaintiff took possession; and secondly, plaintiff'himself introduced proof which showed that the fee of tlie.land still rested in Munson, not defeated by plaintiff’s possession for a period which would bar Munson’s claim. It is true plaintiff introduced this proof to rebut defendants’ proof of prescription; but for whatever purpose introduced, we have it, and we cannot restrict its operation to that object, but it becomes a part of the proof iu the case, which plaintiff cannot den})-; and it appears to me, that in the face of his own showing of such outstanding fee simple, fútate in a third person, no presumption could arise of a seizin in fee from the possession of plaintiff; under deeds from persons having no title, even if defendants had shown no occupation or possession.

Judgment reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Farmers’ and Mechanics’ Bank et al. v. Kimmel.
    Usury, under R. S. 1S3S, is a personal defence, to be interposed by a party, to the contract, of which a subsequent purchaser cannot avail kimself._
    Appeal from the Court of Chancery. In June, 1848, Kimmel filed a bill in the court of chancery to foreclose a mortgage executed to him by one Ward, on the 11th February, 1841. The bank held a subsequent mortgage given by Ward, and in its answer set up usury in the mortgage to Kimmel. The usury consisted in the conveyance by Ward to Kimmel, of a village lot, not covered by the mortgage, as a bonus or consideration for the loan, beyond the legal interest. Ward made no defence, and the chancellor having made a decree m favor of Kimmel,, for the amount of the mortgage and interest, the bank appealed. The court, in deciding the ease, say, per Miles, J., who delievred the opinion, “ We will not stop to inquire whether this amount would be reduced by the value of the village lot, in case the mortgagor had set up, the usury as a defence to the foreclosure, because we think that at least under the statute (R. S. 1888), the defence is personal, and however the appellants may be affected incidentally by the contract, they cannot take advantage of the usury. A contrary rule would hold out no relief to the borrower. ' It would only be transferring his money from the pocket of the lender to the pocket of the holder of the equity of redemption. De Wolf v. Johnson, 6 Peters’ Cond. R. 152.”

      Decree affirmed.,

      Pana 4(. Mather, for appellants.
    Bacon, for appellee.


author: Miles, J.

text:
    Shadbolt v. Bronson.
    A judgment against C, in-a, justice’s court,, for $24..22 damages and'SI..92.costs, was stayed by S for six months, instead of three months as the statute required. After the expiration of the six months, the justice issued execution on the judgment against both C and S, on which a mare belonging to S was taken and sold. In an action of trespass for taking and selling the mare, by S against the justice, Held, the justice had no right to,issue the execution against S, for wanb.of jurisdiction, and that, in doing so, he was a trespasser.
    Case reserved from Oakland Circuit Court. Shadbolt sued Bronson, before a justice, in an action of trespass, for- taking and carrying away a mare, the property of Shadbolt, and recovered judgment for the value of .the mare. Bronson appealed to the circuit court, and on the trial of the cause in that court, it appeared that on the 19th July, 1844, one Gibbs recovered judgment against one Carpenter, before Bronson, who was a justice of the peace, for $24-22 damages and $1-92 costs; that on the same day Shadbolt executed an instrument in writing, by which he agreed to become security for the payment of the amount of the judgment in six months; and that, after the expiration of the six months, the judgment not having been paid, Bronson issued execution on the judgment against both Carpenter and Shadbolt, on which the mare was taken and sold. The question whether Shadbolt could recover, on these facts, was reserved by the circuit judge for the opinion of this court.

      M. L. Drake, for plaintiff.

      Stevens, for defendant.
   By the court,

Miles, J.

The statute of 1841, regulating proceedings in justice’s courts, page 102, sec. 11, provides that “ no execution shall issue on any judgment rendered by a justice of the peace, if the judgment debtor shall, within five days after the rendition of the judgment, give security in writing, with one or more sufficient sureties; sat, isfactory to the judgment creditor or the justice, for the staying of the execution and for the payment of the debt or damages, with the interest thergon and costs, in three months, if the debt or damages shall fiot exceed twenty-five dollars,” &c.

The 13d seption provides, that “ In all cases where security is given for stay of execution,” (as thereinafter provided) “if the debt or damages and interest thereon, together with the costs, shall not be p>aid .¡within the time limited by law for such stay, execution shall be issued ¡by the justice, on application of the judgment creditor or his agent or .attorney, against both principal and surety, in the same manner as if judgment had been entered against both principal and surety, on return of process personally served.”

The defendant in the judgment did not furnish such security as the statute requires. The only condition upon which the execution could be stayed, was upon giving security for the payment of the damages, interest and cost within three months, and if the requisition of the statute was not complied with, the plaintiff in the judgment was entitled to have execution issued at the expiration of the five days.

The agreement of the plaintiff in this case, then, not being such as is contemplated by the statute, could not operate as a stay' of the execution, and being insufficient for that purpose, it seems to this court it must be held to be entirely inoperative and void. It cannot be said to be good for the purpose of rendering the person who executed it liable to an execution if the judgment was not paid, and yet ineffectual to stay the issuing of such execution.

The 73d section furnishes all the authority which the defendant can claim for issuing the execution against the plaintiff in this suit; and he never having become such surety or stay as required by the statute, the justice acquired no jurisdiction as to him; and although he had, as he now contends, jurisdiction of the question of issuing an execution, yet it was only as to the defendant in the judgment.

If this position be correct, then the only remaining inquiry is as to the liability of the defendant t£> this action. The rule on this subject is well stated in Adkins v. Brewer, 3 Cowen’s R. 206. In that case the justice had issued an attachment without the requisite proof being first in form presented to him, that the defendant was concealed or had departed; and he was held liable, as the statute not only pointed out what circumstances should justify such a proceeding, but directed the manner in which those circumstances should be made to appear to the court. Ch. Jus. Savage, in delivering the opinion, says, “the rule 'as to the justice’s liability is, “that when he has no jurisdiction whatever and undertakes to act, his acts are coram non judice, and void. If he has jurisdiction, and errs in exercising it, then his acts are not void, but voidable only. In the former case he is personally liable, in the latter not.” See also Calvin v. Luther, 9 Cowen 61; Bigelow v. Stearns, 19 John. R. 39. In Lewis v. Palmer et al., 6 Wendell 367, it was held that a justice of the peace who issued a second execution, after the first had been satisfied, though he did so upon the fraudulent representation of the plaintiff therein, that the first had been lost, was a trespasser. This decision was placed upon the ground of a want of jurisdiction. The first execution should have been returned unsatisfied, in whole or in part, or proof of its loss have been submitted, to authorize the issuing of another.

Rogers v. Mulliner, 6 Wendell 597, and Hoose v. Sherrill, 16 Wendell 33, have been referred to by defendant’s counsel to sustain the doctrino that, “in issuing process at the request of a party, a justice acts ministerially, and is justified in issuing any process within his jurisdiction which is demanded by a party, provided the justice acts in good faith.” In Rogers v. Mülliner, suit was brought against both justice and plaintiff, for issuing a warrant without oath against a party who was a freeholder. The court admit the liability of the plaintiff in the warrant, and as we suppose upon the ground of the want of jurisdiction in the justice; the statute requiring an oath, 'and the same court having previously declared, in Bissell v. Gould, 1 Wendell 210, in a precisely similar case, that “ without oath the justice has no jurisdiction over the person of the defendant, and all piarties 'concerned in such arrest are trespassers.” Oh. Jus. Savage, who delivered the opinion in both cases, says in the last case that this rule, as respects ministerial officers, must bé subject to qualification; and refers to the rule in Percival v. Jones, 2 John. Cas. 49, that ministerial officers are not responsible for executing any process, regular on its face, so long as the court from which it issues has general jurisdiction to a\vard such pirocess.

This rule applies well to ministerial officers in the service and execution of process. The Ch. Jus. says, “ Under our statute the justice has jurisdiction of the proefess 'of warrant without oath, as -well as summons. In 'certain cases an oath must be made before a rvarrant cab fegálly issue : a constable is not to inquire, when he receives a warrant; whethel'á defendant is a freeholder, and if so whether an oath has been made.” Admitting this, how can we apiply it to the justice who issues the warrant without oath, and of consequence proceeds without jurisdiction? This is attempted to he answered by the assertion that the justice is not b'oúnd to know officially the property or circumstances of every person in the community. We think this is a mistakfe. Sec. 19 Rev. Stat. N. Y., vol. 1, p. 161, provides that “in all cases, on application for a warrant, except where the suit shall have been commenced by summons, the person applying shall by affidavit state the facts and circumstances Within his knowledge, showing the^grounds of his application.”

This section is a re-enactment of the 18th sec. of the act of 1824, Under which this case of Rogers v. Mulliner was decided, with the addition of the words in italics. The act of 1824 provided, however, for issuing a warrant ill & case where a summons had been served by copy. See revisor’s botes, 3d vol. 2d ed. Rev. Laws íh Y. p. 681.

If we admit the truth of the proposition, and it is now too well established to be for a moment questioned, that the justice only acquires jurisdiction over the person by a strict compliance with the requirements of the statute, and if “without oath the justice has no jurisdiction over the person of the defendant,” how can we come to the conclusion that the justice is not responsible, even when acting under the direction of the party ?

That was not a case of a ministerial officer bound to execute process fair upon its face, and therefore protected, but a case where the justice had means of knowing whether or not he was acting correctly. He certainly knew that no summons had been returned served by copy, and could ascertain by the oath of the party whether he was otherwise entitled to the process. In Savacool v. Boughton, 5 Wendell 170, where this whole subject was fully considered, the court distinguish between an officer thus acting and the court, which is held responsible for the illegal command which he may give to one bound to execute his will.

But if we give these cases their full weight as authority, can we say in this case that the defendant had no means of knowing that he was acting incorrectly ? The act substitutes the voluntary agreement of the party to pay the judgment within a specified period, in the place of the personal service of process. He is considered as appearing and acknowledging himself to be indebted to the plaintiff in a sum certain to be paid on a day certain. When that period expires, if the money is not paid, execution issues as upon any other judgment.

By the decisions in this court, we have determined that all the forms required by the statute, upon confession of judgment before a justice of the peace, should be complied with, or the justice acquires no jurisdiction. Beach v. Botsford, 1 Doug. Mich. Rep. 199. The principle upon which these and all other cases upon this subject are decided, that of requiring “ courts and officers of special and limited jurisdiction to observe at their peril the boundaries of power,” has ever been held wise and salutary. See Wight v. Warner, 1 Doug. Mich. Rep. 384, where the principle of Adkins v. Brewer is recognized and adopted. Platt, J., in Suydam v. Keys, 13 John. R. 444, says experience has shown that the safety of private rights will not admit of the relaxation of this rule.

We see no reason why it should be relaxed in this case. The justice had the statute before him. If the agreement was not a compliance with it, he was not bound to receive it; or, having received it, he was obligated to inquire, before he issued execution, whether he had acquired the right so to do. A reference to the provisions of the law, which are very plain, would have at once answered the inquiry. He chose to act without any authority, and must be held responsible therefor. We think the plaintiff is entitled to judgment, and direct that it be certified accordingly.

Certified accordingly.


author: Whipple, J.

text:
    The Peolpe v. Girardin et al.
    In an indictment for publishing a bawdy and obscene paper, it is not necessary to set forth the obscene matter on which the people rely for a conviction.
    The defendants wrere indicted in the District Court of the county of Wayne, for publishing an obscene paper. The indictment set forth, among other things, that the defendants “ unlawfully, wickedly and impiously did print and publish, and cause and procure to' be printed and published, a certain wicked, nasty, filthy, bawdy and obscene paper and libel, entitled City Argus; in which said paper and libel are contained, among other things, divers wicked, false, feigned, impious, impure, bawdy and obscene matters, language and descriptions, wherein and whereby are represented the most gross scenes of lewdness and obscenity,” &c. * On the’trial Girardin was convicted, and thereupon his counsel moved in arrest of judgment for the reason that the obscene matter, for publishing which he had been found guilty by the jury, was not set forth in the indictment, and the district court reserved the question for the opinion of this court.

      Taylor, for defendant.

      Buel, district attorney, for the people.
   By iho :ourt,

Whipple, J.

It is a general rule, founded in justice and gc:d srrre, that every indictment should contain a certain description cf the o/hnee, of which the defendant is accused. It is also said that the indiebrent should contain a statement of the facts -by which it is ccnc-tiíiri'jJj so as to identify the accusation. 1 Chit. Or. L. 169. This is generally deemed proper for various reasons, the principal one of which is, that the defendant may be protected from being questioned a second time on the same ground. But the principal facts and circumstances which constitute an offence, need not in all cases be set out in the indictment. Exceptions to the general rule may be instanced in cases of indictments for being a common scold, or barretor; for keeping a disorderly or a common gambling house. So an indictment against a person for endeavoring to incite a soldier to acts of mutiny (1 Bos. and Pul. 179), or a servant to rob his master, has been held good, without stating the particular means adopted. An exception to the rule is also found in indictments for aiding prisoners to escape: it is sufficient to say “aiding and assisting.” And in charging an accessory before the fact, the words “that he did incite, move, procure, aid and abet,” have been held sufficiently descriptive of the offence, without stating in what manner and by what means the person charged did incite, &c.

But there is another rule as ancient as that contended for by the counsel for the prisoner, which forbids the introduction in an indictment of obscene pictures and books. Courts will never allow its records to be polluted by bawdy and obscene matters. To do this, would be to require a court of justice to perpetuate and give notoriety to an indecent publication, before its author could be visited for the great wrong he may have done to the public or to individuals.

And there is no hardship in this rule. To convict the defendant, he must have been shown to have published the libel: if he is the publisher, he must be presumed to have been advised of the contents of the libel, and fully prepared to justify it.

The indictment in this cause corresponds with the precedents to be found in books of the highest merit. If authority was necessary, the case of the Commonwealth v. Holmes, 11 Mass. 336, fully sustains the views we have expressed.

Certified accordingly.


text:
    Stevens v. Osman.
    “ A quantity of com consisting of about 200 bushels, and a quantity of rye consisting of about 100 bushels,” is not a sufficient description of the property to maintain replevin.
    In replevin a defective description of the property must betaken advantage of by special demurrer, as it would be held sufficient after verdict, avowry, or plea of property in defendant.
    Case reserved from Oakland Circuit Court.

      M. L. Drake, for plaintiff.

      Wiener & Hoemer, for defendant.
   By the court,

Whipple, J.

The only question presented in the case is whether the declaration contains a sufficient description of the property replevied. The action, it is to be observed, is for the wrongful detention ■of “ a quantity of com (consisting of about 200 bushels), and a quantity ■of rye (consisting of about 100 bushels).

It is well settled that in actions for a tort, it is not, in general, sufficient to alledge that the defendant injured or took divers goods and chattels of the plaintiff without giving a description of them; and that more particularly is necessary in replevin and detinue, for the reason it is only in these forms of action that the goods themselves can be recovered. 1 Chit. Pl. 311, edi. of 1844, Blackstone says, that in detinue, it is necessary to ascertain the thing detained in such a manner as that it may be specifically known and recovered: therefore, it could not be brought for money or corn unless it be in a sack or bag, for then it may be disiinguishably marked. 3 Black. Com. 152. The same reasoning applies with equal force to the present action. The writ should, on its face, .contain such a description of the goods, as would enable the sheriff, with reasonable certainty, to distinguish them from .other property of a like nature. The corn and rye is alleged to have been wrongfully detained in the township of Waterford in the county of Oakland. With such a description, the sheriff would have had some difficulty in executing his writ. It was the duty of the plaintiff, not only to state the .township in which the property was alleged to have been detained, but the particular place in the township; with such further description as would h^ve.-enabled the sheriff to distinguish the corn and rye for which .¿he action was brought, from other grain of a like kind: as, for instance, by stating that it was in a particular barn, or mill, or granary, or that it was in sacks, or bags, or barrels, situated in a particular place. With such a description, the thing detained is specifically known, and the officer guided in the discharge of his duty. Certainty of description is also necessary to enable the court, if necessary, to award a return of the property, which could ijot be done, if perchance, the sheriff should have taken grain not the subject of controversey between the parties, in consequence of the insufficiency of the description. It is not intended to be understood that the particular place in a township in which property is alleged to be unlawfully detained, should in all cases be stated; but only when the description of the place is necessary to identify and describe the property to be replevied. In the case of DeWitt v. Morris & Platt, 13 Wendell 496, the property was described as follows: “Goods and chattels, to wit: about 400 tons of iron ore, commonly called bog ore.” In that case the court held the writ defective, in not being more specific in the description of the chattels to be taken, and that the sheriff should have refused to -execute it It is admitted that the defect must be taken advantage of by special demurrer, as the description would be held sufficient after verdict. It would also be deemed sufficient if the defendant had avowed or pleaded property in himself, as there would then be no controversey between the , parties as to what the goods were. The sheriff in this case should have refused to execute the writ; having executed it, however, constitutes no reason for the very general description of the property contained in the declalaration.

The demurrer in this case is well taken, and it must be so certified.

Certified accordingly„


author: Whipple, C. J.

text:
    Romeyn et al. v. Hale et al.
    An order made by the chancellor denying a motion to stay a sale under a decree of foreclosure, and vacating’ a temporary order granted staying the sale until such motion could ho heard and disposed of, cannot be appealed from.

      Motion to dismiss an appeal from the court of chancery. Romeyn obtained a decree of foreclosure against Hale, in the court of chancery, and the mortgaged premises were about to be sold under the decree, by a master, when Hale applied to the chancellor on certain affidavits and exhibits, for an order staying the sale. An exparte order was granted, requiring Romeyn to show cause, at a certain time, why the sale should not be stayed, and, in the mean time and until further order, staying a sale by the master. On cause being shown, an order was made denying the motion for a permanent stay of sale, and vacating the previous order. From this last order Hale appealed.

      Stewart <& Goodwin, for the motion.

      Joy & Davidson, contra.
   By the cowrt,

Whipple, C. J.

The only question presented for our consideration is, whether this last order is, within the true intent and meaning of the statute, such a “ decree or final order,” as is the subject of an appeal.

The order made by the chancellor, was for a temporary stay of proceedings under the final decree made in the cause. The order appealed from, vacated the order directing a temporary stay of proceedings, by the chancellor. ' It would certainly be extending the right of appeal to a degree unauthorized by the statute, and the decisions of this court, to consider an order vacating another order directing a temporary stay of proceedings under the decree, as a final order disposing of the merits of the case, within the meaning of the statute. To permit an appeal in such a case, would be extending the provisions of our statute to almost every order made by the chancellor, denying or granting a motion, subsequent to the final decree in a cause. If the complainants proceed to a sale of the mortgaged premises, and it appear by the record that such sale was unauthorized, or that the master did not execute the decree according to its terms, objection may be made upon motion to confirm the master’s report, and a party aggrieved by the order of the chancellor upon such motion can appeal. If, however, the complainants take the initiatory steps for a sale under the decree, when the decree has been satisfied, or when in consequence of matters arising since the decree, he has no right to sell, the court would grant relief, either upon facts to be presented upon a motion to confirm tbe sale, or upon a direct proceeding instituted by tbe defendant to inhibit the sale. In the case before us, the order was founded upon a motion made by Hale to stay, proceedings. The reasons urged in support of the motion, were founded, partly upon what appears in the record, and partly upon matters set up in affidavits. How it is clear that the rights of neither party were concluded until the action of the court upon the report of the master; if the proceedings of the master were not warranted by the decree, the result would be that those proceedings would he set aside, and the court would be authorized to inspect all orders and decrees made in the cause and connected with the question as to whether the order to confirm should he granted or denied, to ascertain whether its mandate had been carried into execution. If, however, the objections to the confirmation do not appear on the record, the aggrieved party in a proper case has an appropriate remedy by which his rights can he protected.

It is said that a order granting a stay of proceedings, would have authorized the complainants to appeal to this court; and that if the complainants had the right of appeal, supposing the motion to have been granted, it would follow that the defendants’ right of appeal cannot he questioned, as the motion was decided against him. It may be that, if the court below had granted a perpetual stay of proceedings, an appeal might have been taken to this court. The order as to the complainants might have concluded them as to the merits of the question presented by the motion; the same, however, cannot be said of the defendant. If he has rights, they may be asserted when presented in a proper way, and at a proper time.

Appeal dismissed.


text:
    Parks v. Barkham.
    "Where there has been misnomer of the defendant, in replevin, under R. S. 18S8, the circuit court may, after service of the writ, but before the execution of the replevin bond, permit the plaintiff to file a new affidavit, and thereupon to amond the writ by inserting the true name of the defendant.

      Cask reserved from Oakland circuit court.. Replevin. The proceedings were instituted against the defendant by the Christian name of James. After the affidavit had been filed and the writ issued and served, but before the execution of the replevin bond, it was discovered that the defendant’s name was Joseph; and the plaintiff thereupon moved the circuit court for leave to amend the affidavit and writ by inserting the latter name.

      Paries, in person, in support of the motion.

      Stevens, contra.
   By the court,

Whipple, C. J.

My impression at the circuit was that the motion should be denied, for the reason that the affidavit^ which was the foundation of the proceedings, could not be amended. My attention, however, was not drawn to the proviso contained in the 2nd sec. of chap. 5, title 4, part 3 of the Revised Statutes of 1838. By the terms of that proviso, a motion to quash a writ of replevin, in case the same issued before the filing of the proper affidavit, is to be denied, provided the plaintiff should, within such time and upon such terms as the court might direct, file with the clerk the affidavit required by law. A liberal interpretation of the statute will authorize the court, not to direct the affidavit already filed to be amended, but to authorize the filing with the clerk of a new affidavit.

In the case before us, the service of the writ was on Joseph Bark-ham, to whom the bond in replevin was executed, and we see no reason why the plaintiff may not, under the broad provisions of • the proviso above cited, file another affidavit, alleging the property to have been wrongfully detained by Joseph instead of James Barkham, previous to the issuing of the writ.

The process, being served on the proper person, though by a wrong name, may be amended; this our statute of amendments allows.

We are of opinion that the motion to amend the writ be allowed, upon the filing by the plaintiff of a new affidavit, under such terms as the circuit court may prescribe.

Certified accordingly.


author: Green, J.

text:
    Delevan v. Bates.
    D. took a maxe belonging to B., which he afterwards sold to T., against whom B. brought replevin and reeovorod'the mare. Afterwards B. sued D. in trespass, to recover the damages he had sustained by reason of the detention of the mare from him, and the expense he had been at in regaining possession of her. Query, whether an action will lie in suoh a ease. The proper action, if one will lie, is trespass and not case.
    In action of tort, everything that may properly he considered by the jury in mitigation of damages, may bo given in evidence under the general issue.
    Error to Hillsdale Circuit Court. Bates sued Delevan before a -justice of tbe peace, in trespass. Tbe declaration alleged that Delevan, on the 28th February, 1839, with force and arms, certain goods and chattels of the plaintiff, to wit: a sorrel mare of the value of $100, seized, took, led and carried away, and to his own use converted and disposed of, and that he kept and detained the same from the plaintiff for the space of three years, next following; and that by reason thereof the plaintiff had been obliged to pay $100, in order to regain possession of his property; and had also been subjected to great expense and trouble, and had been obliged to pay $100 to procure another team, &e. Delevan plead not guilty, and for a further plea, that he took the mare as deputy sheriff of the couhty of Hillsdale, by virtue of an execution against one Oliver Bates, &c.; and gave notice that he would give in evidence under the general issue, that Bates had instituted a suit in replevin, in a justice’s court, before the commencement of the present suit, for the' recovery of the mare against one Town, who purchased her when she was sold by defendant on the execution, and that in that suit judgment was had for the recovery of the mare by Bates. Bates recovered judgment in the justice’s court, and Delevan ajipealed to the circuit court. On the trial in the circuit court it was admitted by the parties that Delevan took the mare, and that Bates had recovered possession of her in the replevin suit, and that in the present suit he did not seek to recover the value of the maxe, but the damages only arising from the taking. The counsel for Delevan thereupon moved for a nonsuit, on the ground the action should have been case instead of trespass; and for the reason that the recovery in the replevin suit was a bar to the present action. The motion was denied; and defendant then offered in evidence the docket of the justice in the replevin suit, which was objected to by plaintiff’s counsel, and the objection sustained by the court, because the notice accompanying the plea did not state a satisfaction of the judgment. Defendant excepted, and afterwards sued out Ms writ of error.
    Murphy, for plaintiff in error.

      Howell, for defendant in error.
   By the cowrt,

Green, J.

The property in question having been unlawfully taken by Delevan, and sold to Town, who unjustly detained it from Bates, he was at liberty to prosecute his remedy against either of the wrong-doers, at his election. He elected to prosecute his writ of replevin against Town, and recovered his property, with the costs of suit. In that action, he was also entitled to recover his damages for the detention, (R. S. 1838, p. 525,) and whether he claimed such damages, or had them assessed or not, is entirely immaterial so far as this case is concerned, a waiver of damages being equivalent to a satisfaction.

The first question presented is, whether the action should have been case or trespass ? There can be no doubt that if an action can be sustained upon the facts contained in the record, the form of action adopted is the proper one. The wrongful taking complained of, was a direct and immediate injury to the plaintiff, and imtil the recent statute authorized an action on the case for such an injury, that form of action could not be used in this class of cases.

But a more formidable question; and one about winch we entertain very serious doubts, is, whether Bates, having elected to prosecute .his action of replevin against Town, a vendee under-Delevan, and having, recovered his property in that action, can still maintain this action against Delevan? See Cowen & Hill’s notes to Phillip’s Evidence, 828, 978, and the cases there cited. This last question, not having been very clearly and distinctly presented by the record, nor fully discussed by the counsel, and the decision of it being of considerable importance as a precedent to govern this court hereafter in like cases, we shall not now undertake to decide; for whether the circuit court was right or not, in refusing to nonsuit the plaintiff, the judgment in this cause must be reversed upon another ground.

The only other question necessary to he considered is, whether ■ the circuit court erred in refusing to admit in -evidence the docket of the justice before whom the replevin suit was tried ? In actions of tort, every thing which may properly he considered by the jury in mitigation of damages, may be given in evidence under the general issue; for such matters cannot he’’ pleaded, and a [notice of them would he of no avail.

Assuming, then, that this action may he maintained, the justice’s docket, showing the recovery of the property, with the costs of the suit, and a waiver or satisfaction of the damages to which the plaintiff therein ■was entitled, should have been admitted, as evidence in mitigation of the damages; and that evidence having been erroneously rejected, the judgment must be reversed, and a new trial awarded — the costs to abide the event.

Judgment reversed and new triad awarded.

       R. S. 1846, p. 484, §30.


text:
    Jameson et al., Appellants from Decree of Probate Court of Chippewa County.
    A will after devising tbe real estate of the testator, contained the following clause, viz: “ It is my will that all my furniture and property be in common to my beloved wife, Elizabeth Holiday, and daughter, Jane J. Holiday, so long as they live and keep house together, and that whenever they separate or break’ up Jiouse keeping, that the furniture be divided between them, at their own discretion, and the stock of cattle to be given up to my beloved wife Elizabeth, for her sole use and behoof.” Held, that a claim which the testator had against the Chippewa Indians, and which was allowed and paid over to the executor under a treaty concluded after the testator’s death, between the Indians and the United States, did not pass under it to the widow and daughter.
    No rule is better established, than that general words in a will may he restrained in their meaning, or rejected entirely, to carry out the intention of the testator. So general words may he construed by the particular words which follow.
    Appeal from the Probate Court of Chippewa county.
    John Holiday, on 29th November, 1841, made his last will and testament as Mows: “ In the name of God, amen, I, John Holiday, of the Sanlt Ste. Marie, Michigan, do make and declare this my last will and testament, in manner and form as follows. First, I resign my sonl into the hands of Almighty God, hoping and believing in a remission of my sins by the merits and mediation of Jesus Christ, and my body I commit to the earth, to be buried at the discretion of my executors hereinafter to be named, and my worldly estate I give and devise as follows:
    “ First, I give and devise and bequeath unto my beloved daughter, Mary Holt, one-third of all my lands, messuages and tenements, situate, lying and being in the state of Illinois, to have and to hold to my said beloved daughter, Mary Holt, her heirs and assigns, forever,
    “Also, I give and devise and bequeath unto my beloved daughter, Jane J, Holiday, one-third of said lands,-messuages and tenements, situate, lying and being in the state of Illinois, to have and to hold to my said beloved daughter, Jane J. Holiday, her heirs and assigns, forever.
    “ Also, I give, devise and bequeath to my beloved grand-children, John H. Jameson and Harriet Elizabeth Jameson, the remaining third of said lands, messuages and tenements, situate, lying and being in the state of Illinois, to have and to hold to the said John H. Jameson and Harriet Elizabeth Jameson, their heirs and assigns, forever. It is my wish and intent that each of said thirds or portions be so allotted, as near as practicable, good and bad lands to be in like proportions and quantities.
    “ Also, I give, devise and bequeath those two lots, messuages, tene* ments and appurtenances situate, lying and being in the village of Sanlt Ste. Marie, Michigan: one of which is known as the Billiard Room lot, the other adjoining it on the rear from the water on the hill, for the use and maintainance of my beloved wife, Elizabeth Holiday, during her lifetime, and at her decease to my beloved daughter, Jane J, Holiday, to her heirs and assigns, forever:
    “ It is my will that all my furniture and property be in common to my beloved wife, Elizabeth Holiday, and daughter, Jane J. Holiday, so long as they live and keep house together, and that whenever they separate or break np house keeping that the furniture be divided between them, at their own discretion, and the stock of cattle to be given np to my beloved wife Elizabeth, for her sole rjse and behoof.. Having, before the making of this my will and testament, given to my beloved daughter, Jane J. Holiday, for her sole use and benefit, a note of hand from L. T. Jameson, for two thousand dollars, payable oil demand, and bearing date 15 June, 1841. Said note is endorsed by me and-witnessed by J. L. Ord, and I hereby wish it to be hereby so taken and understood.
    “ As I have given to my son William, from time to time, what I think was sufficient for him, it is my express will and intent that he have nothing whatever.
    “ It is also my will that what I have herein devised .and bequeathed as above to my beloved wife, Elizabeth Holiday, be to her in lieu of dower. And I do hereby appoint my son-in-law, Henry Holt, and my friend, William H. Brockway, as executors of this my last will and testament. In witness, &c.”
    After his death the will was proved and admitted to probate, and letters testamentary were granted to Brockway, one of the executors, the other declining- to act Holiday in his lifetime had a claim against the Chippewa Indians, and under a treaty made and concluded after his death, at Lapointe of Lake Superior, between Robert Stuart, United States Commissioner, and the Chippewa Indians of the Mississippi and Lake Superior, by their Chief and headmen, on the 4th October, 18^12, this claim was allowed to his estate, and jiaid oyer to the executor, amounting to $3,157 10. Of this sum, after paying the debts against the estate and charges of administration, $804 68 still remained in the hands of the executor, who petitioned the probate court for an order directing him to whom to pay it, The probate court ordered it to be paid under the will to Elizabeth Holiday and Jane J. Holiday, the widow and daughter of the testator, from which order an appeal was taken to this court by John and Harriet Jameson.

      Fraser, for appellants.

      Farnsworth and Goodwin, for respondents.
   By the court,

Whipple, C. J.

The only question presented for the decision of the court, relates to the construction of the 5th .clause in the will of John Holiday. On the part of the appellants, it is contended that this clause does not cover or make any disposition of the money realized by the executor under the treaty between the United States and the Chippewa tribe of Indians, entered into at Lapointe, in 1842. On the part of the appellees, it is insisted that this clause includes and disposes of the money in question — or, in other words, that under this clause every thing not sj)ecifically disposed of by the testator would pass to his wife and daughter Jane.

As a will is the legal declaration of a party’s intentions, which he directs to be performed after his death, it follows, that it is the duty of courts, in the construction of wills, to give full and complete effect to the intention of the testator. In accomplishing this object, rules of construction have been adopted, by which courts are guided in cases of doubt in determining the intention of a testator; these rules are founded in good sense and sound reason, and are admirably adapted to the accomplishment of the great object to be attained in the construction of wills. I shall have occasion to apply some of these rules, in the course of this opinion, to the clause in question.

If the testator intended that the claim he had against the Indians should «pass, by the fifth clause, to his wife and daughter, be certainly was .unfortunate in the selection of words by which such intention is manifested. The word “ property,” it is admitted, is a word of large signification, and might include every species of property, whether in possession or action. It might, certainly, be .so construed as to include the claim referred to, if such construction is justified by a fair interpretation of the clause in question, and especially, if, by such construction, effect is given to the manifest intention of the testator, to he deduced from a survey of the entire instrument. If, after the several devises contained in the will, he had bequeathed all his property to his wife and daughter, we should have experienced hut little difficulty in arriving at the intention of the testator. Such a bequest, taken in connection -with the introductory clause, would have been deemed and held a residuary clause, although not expressed in the words usually employed in framing such a clause. But was the word11 property'” used in its largest sense in the clause in question % It is to be observed that the words of the clause are, “it is my will that all my property und furniture be in common,” &e. The word “ property ” would include thefwnitwe, as well as the cattle mentioned in another part of the clause; and the introduction of those words cannot he rejected as unnecessary, if it may be fairly inferred that their use was intended to explain what was meant by the general word “property,” with which they are connected. No -rule is better e&tablished than that general words in a will may be restricted in their meaning, or rejected entirely, to carry out the intention of the testator. So general words may be controlled by the particular words which follow. Illustrations of these rules are to be found in reported cases. See 6 Pet. Cond. R. 82, 6, 90; 11 Mass. 528; 10 Paige 187; 2 Atk. 104, 228, 230-1-3-4; 3 Rand. R. 191.

The word “ property,” then, may be either rejected, or restricted in its meaning, if, by so doing, we do not subvert, but give effect to the intention of the testator. The language of the first part of the clause is as follows: “ It is my will that all my property and furniture be in common to my beloved wife, Elizabeth Holiday, and daughter, Jane J. Holiday, so long as they live and keep house together, and when they separate and break up house keeping, then the furniture be divided between them at their discretion; and the stock of cattle delivered up to my beloved wife Elizabeth, to her sole use and behoof.” To make this clause sensible, the word “property” should be applied to things capable of being used in common; for it cannot be pretended that it includes real property, that having been disposed of by the previous clauses in the will. To construe the word “property” as including choses in action, would seem a little short of absurdity, as they cannot, from their nature, be used in common. We can readily understand that the wife and unmarried daughter could use in common the furniture, cattle and other personal property» of a like nature, but it is difficult to comprehend how a chose in action could he thus used. It would, indeed, have appeared somewhat remarkable, if money had been thus disposed ef. A person in making a will does not disjrose of money by directing it to be used in common among his family, or particular members of that family. If, instead of the claim for over $3,000 against the Indians, he had actually obtained its payment in money, it is apprehended a different mode of disposing of it would have been found in his will. If intended for his wife and daughter, he would either have directed its investment for theh benefit, or have given it to them in such proportions as he might deem proper; he certainy would not have given them the me of the money, until they separated and ceased to keep house together, and then make no further disposition of it. Admitting, then, that money was included in the word property: all the wife and daughter could claim would be its use until the happening of the event mentioned in the clause. But it seems to me very clear, from a careful examination of the 5th clause, that it includes nothing but the furniture and cattle; or, at most, such other property of a like nature which he may have owned at the time of his death. It was, indeed, said that the words “ it is mj wih that all my property and furniture be in common,” imports an absolute disposition of everything included in the word “property.” But this construction would overthrow the latter part of the same clause, which gives the furniture to the wife and daughter, and the cattle to the wife to the exclusion of the daughter, when they “ separate and break up house keeping.” By giving to the words their natural and ordinary meaning, we make the clause consistent and intelligible; by giving it the forced and unnatural construction contended for, we render nugatory a very important part of the 5th clause.

The will before us was evidently drawn by a person not familiar with the legal import of the words he employed; it bears on its face evidence that it was not prepared by a legal mind. This circumstance will explain the peculiar structure of the 5th clause, embodying, as it does, matters having no connection with each other, and throwing them together in a manner so confused as to render it almost unintelligible. The fact that it was prepared by an unskilful hand, furnishes additional evidence of the intention of the testator. If he intended that the claim against the Indians should pass by the will, he would not have used the word “ property,” as expressive of such intention. The same may be said of the person by whom the will was drawn. The claim itself would have been specifically mentioned, for the reason that an individual unskilled in the use of technical terms would be likely to adopt words with which he is familiar, and by which his intention could not be misunderstood. If, for instance, the testator intended that the chose in action should pass by his will, he would naturally have expressed his wishes in plain and unambiguous terms; he would have characterized it as a claim or demand against the Indians, and not generally, as “ property.” So of money which he might wish to dispose of — he would call it money, and not “property.”

The argument that the preamble or introductory clause shows that the testator intended to dispose of all of his estate, can have no weight, unless the intention thus declared is expressed with reasonable certainty on the face of the will. The introductory clause can only be referred to in cases of doubtful construction. It for instance, it appears from the introductory clause that the testator intended to dispose of his whole estate — and the expressions of the residuary clause may, by a reasonable construction, include the whole — they are to be taken in. their largest sense, so as to make them harmonize with the introductory part. But in the will before us, there is, in fact, no residuary clause, and the rule above stated has no application.

But it is urged that the concluding part of the 5th clause, and the two subsequent clauses, are conclusive to show that the testator intended to dispose of his entire estate. The testator does not, by the 5th clause, give to his daughter the note against Jameson of $2,000; but to guard against misapprehension, says that he had already given to her the note, and he desired that it might be so understood. Had the note been the subject of a gift by the terms of the will, the fact might have influenced our judgment in giving a different construction to the clause in question. But the most that can be said of the Jameson note is, that it simply furnishes evidence that the testator had made to his daughter a gift of the note, but does not, of itself, confer rights upon her which she did not before possess. It is an assertion by the testator that he desired it to be understood that the note was the property of his daughter. This was undoubtedly done to avoid any controversey that might arise after his death, touching the ownership of the note. This part of the 5th clause may be referred to for the purpose of fortifying the conclusion to which we have come respecting its construction. If the testator was so careful as to refer to a demand against Jameson of $2,000, it is a little remarkable that he should have forgotten to refer specifically to a claim exceeding $3,000, which it is said he had against the Indians. This circumstance, however, may be explained by the fact that claims against the Indians are of so doubtful a character as not to be taken into account by a person in making a final disposition of his estate by will. The testator was fully advised of the manner in which such claims are usually paid. He did not know, and perhaps could not anticipate, that after his death a treaty would be made^by the provisions of which his claim would be allowed. And yet, this was the only mode by which he could reasonably expect to realize anything from it. I have not the slighest idea that this claim entered into his mind when dictating his will; if it bad, I am satisfied a specific provision would have been made with respect to its disposition.

It is further urged, that if the decree of the court below is reversed, William Holiday, the son of the testator, would participate in the distribution of the money realized from this Indian claim, and thus defeat the will of the testator. The will recites, that as the- testator had given his son what he thought was sufficient, it was his will that “he have nothing whatever.” If the language of the 5th clause was of doubtful construction, the argument founded on this clause of the will would have great weight. But if the view I have taken of that clause be right, the- construction contended for by the appellees is inadmissible. By it, no disposition whatever is made of the .claim against the Indians; all that can be claimed by that clause is, that the use of the property not previously disposed of by the will should be in common by the wife and daughter until the happening of a certain event; after which, the property particularly specified in the clause is finally disposed, of; so that, if any other property was intended, no disposition was made of it.

But a survey of the whole will furnishes another argument against sustaining the decree of the court below. Beside the property given to his wife by the 5th clause, an estate for life is also given in “ two lots, messuages, tenements and appurtenances, in the village of Sault Ste, Marie.” The last clause declares that what he devised and bequeathed to his wife should be in lieu of dower. To his daughter Jane he gave one-third of his real estate in Illinois, besides what she takes under the 5th clause. He also gave to her, after the decease of his wife, the two lots in the village of Sault Ste Marie, To his daughter Mrs. Holt,, and4the children of his deceased daughter, who are the appellants in this case* he gave each one-third of his real estate in Illinois. Taking into view the Jameson note of $2,000, it will be perceived that his daughter Jane took a large proportion of the estate. Looking, therefore, to the motives by which the testator was probably influenced in the disposition of his estate, I am unablo to see why he should have given to his daughter Jane, besides the real estate and the $2,000 note, so large an interest in the claim against the Indians. That he should have given her more than Mrs. Holt and the children of his deceased daughter, Mrs. Jameson, is not remaikable. As appears by the will, Jane was unmarried; and it was natural enough that such portion of his estate as would be necessary for her support should be given to her. This he has done, and I cannot think that had he supposed the large claim against the Indians would be realized, that he would have excluded his daughter Mrs. Holt and the children of his deceased daughter from a participation of its benefits.

The decjee of the judge of probate must be reyersed.


text:
    Millerd et al. v. Reeves.
    Where on error, a motion to set aside the service of a declaration appeared in the transcript of the record, it was held that it could not be noticed as it was not properly before the court. j
    In an action for flowing land, an unrevoked parol license, given by a third person who had the right to flow, is a good defence.
    R. sued M. for flowing a tract of land, alleging seizin and possession in himself. On the trial the only evidence of title given by R. was possession, for about one year,previous to bringing the action. It further appeared in evidence that previous to, and at the time R. took possession, a part of the tract was flowed by M. JSelA, that by reason of M.’s prior possession, by flowing, of that part of the tract covered with water, at the time R. took possession, that R. could not sustain his action without showing title in himself to the land flowed, or that ho entered and took possession of the tract by color of a paper title.
    Error to "Washtenaw Circuit Court. An action on the case was brought by Reeves in the circuit court, against the plaintiffs, in error, for flowing, by means of a dam kept up by them, the north-west quarter of section thirty, town one south of range five east, and the east half of the north-east fractional quarter of section twenty-five, in the same town, in the county of Washtenaw, of which lands the declaration alleged that Reeves was lawfully seized and possessed. On the trial various exceptions were taken, which, with the evidence given and that proposed to be given and rejected, bearing upon the questions decided are stated ill the opinion of the court. The transcript of the record stated the action was commenced by declaration, and that a coqiy of it, with notice of the rule to plead, was served on defendants by leaving the ■same at their usual place of abode; that defendants appeared and put in a plea; and that they afterwards moved to set aside the service of the declaration, and all subsequent proceedings, for irregularity in the service.

      Baker, Millerd and Tiffany for plaintiffs, in error.

      Hawkins, for defendant in error.
   By the court,

Wing, J.

The motion of the plaintiffs in error, to set aside the defendant’s declaration, or the service of it, and the several motions subsequently made, though copied into the return, are not brought here by the writ of error, they being mere questions of practice. The fact that they appear in the transcript, does not give this court any power to notice them. We can only notice such matters as are properly brought up to this court by the writ of error.

We must regard the plaintiffs in error as having voluntary appeared to the action, and thereby waived all previous errors.

The proof introduced by the defendant in error, tended to show that he had occupied the premises, a year or more, immediately preceding the trial, and that they were flowed by water set back by the dam of the plaintiffs in error.

From the statement of the testimony in the bill of exceptions, it might be inferred the whole premises described in the declaration were flowed; but this doubtless was not the fact, -for the defendant occupied a portion of them.

The defendant commenced his occupation of the land in question in the spring of the year 1843, more than a year before the suit was tried. The proof does not show that defendant entered into possession of the land by color of title, or that he claimed any interest in the freehold. There is no reference in the proof to any deeds under which defendant claimed. He is not shown to have been anything more than a mere occupant. How he acquired possession, or by what authority, is not in proof. Jefferson Brooks, one of defendant’s witnesses, testified that the land came into the possession of the defendant in the spring of 1843; the witness believed defendant bought it of the heirs; he was told so by them; but we are not informed who these heirs are, nor anything about the purchase, nor that defendant ever claimed to have bought the land of heirs, or any other persons. Some of the witnesses speak of the land as defendant’s farm; but this must be regarded as descriptive of the land of which they are speaking, rather than as proof of title. It is proved that a number of persons had occupied the land at different periods, before defendant took possession of it.

The plaintiffs read in evidence a deed from Samuel W. Dexter, to Jesse Millard, one of. the plaintiffs, and others, in fee • simple of certain lands on section 31, embracing a grant of a right to flow Dexter’s land by a dam, to be raised two feet high. This deed bears date the 13th January, A. D. 1836. It is evident from this deed that it was the intention of S. W. Dexter to sell a mill site and privilege on section 31. Plaintiffs also read in evidence a warranty deed from defendant to S. W; Dexter, bearing date the 16th of June, A. D. 1840, by which defendant and his wife grant to Dexter, his beirs and assigns, forever, the right to flow the north-west quarter of section 30, (described in the declaration,) by a dam to be erected by Dexter, his heirs or assigns, on section 31. Plaintiffs then offered to prove by S. W. Dexter, who was sworn for them, that previous to the time they erected the dam, Dexter, for a consideration to be paid by them to him, sold the right to flow the land in question by means of a dam; that this sale was by parol, and that, in pursuance of this license, they went on and built the dam, at an expense of $1,000, and flowed the land in question. Plaintiffs also offered to prove by Dexter, that he had given to them a license by parol to Aqw the land in question, before they built their dam, and that this license was not revoked. This evidence was rejected by the court.

The defendant admitted that the plaintiff, Jesse Millerd, had become the sole owner of the land on section 31 described in the deed from Dexter to him and others, before the dam was erected. I cannot learn from the statements in the bill of exceptions, when the dam was built, nor whether there was any other mill site on section 31, which was then or had been owned by Dexter, or any one else; but I think it may fairly be assumed, from all that is shown, that plaintiffs’ mill privilege was the ¡only one on section 31, since Dexter sells, or attempts to sell by parol, the fight to flow the lands described in the deed from the defendant to him, which would not have occurred, most probably, if the right could be useful as connected with another privilege on section 31. Dexter had already sold the mill privilege on section 31, and it would appear that this right or easement was obtained by Dexter of defendant for the purpose of perfecting that privilege; for plaintiffs offered to prove that they did not build their mill dam until they had purchased a licenseTrom Dexter, co-extensive with his purchase of defendant, as regarded the quantity of land to be flowed. It is not shown that defendant had any title to any of these lands when he conveyed the right to Dexter. Nothing is proved upon this subject. Whatever his interest was, he sold the right to flow, by a warranty deed, and he covenants to warrant and defend the right to Dexter, his heirs and assigns, against all persons claiming under him. If ho purchased those lands afterwards again, or if he took possession of them only, he was precluded by his covenant from asserting any right to them inconsistent with their use by Dexter, or his assigns, in the manner designated in his deed. Dexter could use the right thus acquired, or he could assign it to another. It was not a personal privilege granted to him; it was a beneficial right, with an unlimited power of disposal. Plaintiffs purchased it for the purpose for which it was granted to Dexter, and used it accordingly.

It is objected that this right to flow is an incorporeal hereditament, and that it can only be assigned by deed, devise or record. For this reason the circuit judge rejected the evidence offered by plaintiffs. Plaintiffs insist that the parol sale operated as a license — that Dexter could authorize another to do that in furtherance of the plan of building mills on section 31, which he could do himself. Conceding this position, what was the effect of the parol license ?

As a general proposition, an easement upon the land of another, cannot be created without deed. Hewlins v. Shippman, 5 Barn. & Cress. 221; 11 Serg. & Raw. 207. A temporary right may be granted to divert water or flow land, by a mere verbal license; and it is said that a right so derived, under certain circumstances, will not be revocable at the will of the giver. Angell on Water Courses 61; 14 Serg. & Raw. 267; 4 id. 241; 2 Stark, Ev. 541; 4 Watts’ R. 317. And when executed, or when the party has been led to expend money in faith of such license, it is not revocable. 8 East 508; 14 Serg. & Raw. 267; 7 Taunt. 384; 4 Watts’ R. 317; 2 Stark. Ev. 541; Law of Eaesments 25, In Winter v. Brockwell, 8 East 508, Ld. Ellenborough thought it very unreasonable that, after a party had been led to incur expense in consequence of having obtained a license from another, to do an act, and the license had been acted upon, that other should be permitted to recall his license, and treat the first as a trespasser for having done that very act. Angell on Water Courses 65. In the case of Rerick v. Kern, 14 Serg. & Raw. 267, the doctrine that a parol license, to use the water of a stream for a saw mill, was good,- and obligatory on the person giving the license, if followed by an expenditure of money by the person receiving the license, is fully recognized,, 4 Serg. & Raw. 241; 2 Esp. N. P. (Gould’s edi.) 268, 636; 17 Serg. & Raw. 383. Such license is good, until countermanded, to excuse a'trespass. 4 East 107. Plaintiffs could not be wrong doers until the license was countermanded, in any case. The King v. Harndon, 4 Maule & Sel. 562; 8 East 308; 7 Taunt. 384; 4 Watts’ R. 317; 4 East 107; 14 Mass.. 403; 1 Dev. & Batt. 492. In the case of Clement v. Durgin, 5 Greenl. R. 9, plaintiff had agreed to release, or had released by parol, all damages for flowing his lands,. The issue tried was whether the respondent had the right to' erect the dam and flow the land of conqplainant, without the payment of damages therefor; the state giving the right to raise the dam and flow lands, subject to payment of damages to the owner of land flowed. It was contended the right claimed by respondent was an interest in lands, and Was within the statute of frauds, and could only be proved by writing. The court say, we regard it as rather in the nature of a license to do certain acts upon plaintiff’s lands, of which parol proof has always been deemed admissible, as to cut trees, build a bridge, or pass over the land of another, or build a fence. In these, and in many similar case's, proof of a parol license from the owner would be deemed a good defence to an action of tresspass. Such a license is revocable, unless the party receiving it has been led to incur expense; in which case it is not revocable without tendering an indemity. A parol license is- a defence- to an action of trespass.

The case of Woodbury v. Parshley, 7 N. H. Rep. 237, was an action on the case for flowing plaintiff’s meadow land, occasioned by a dam built by defendant on his own land. The dam was built by the consent of plaintiff. The question was whether parol evidence was admissible to prove a license to flow plaintiff’s land. The court say, this question is now settled on sound and satisfactory principles. It is now held that the statute of frauds does not apply to such a case.

When the court say a grant or license by parol, when the law requires it to be in writing, is void; they mean that it is void to confer the privilege to the extent intended by the parties, but pot that it is void to all intents and purposes. Until the license is countermanded, no action can be maintained, and this countermand must be proved on the trial.

In the case of Miller v. Auburn Railroad Co. 6 Hill 64, the court appear to think many of the English and American cases cited above, are not law to the extent stated in them. Judge Cowen says, if they are law, you have only to throw the grant into the form of a paro1 license, and On its being executed, the statute and common law are evaded. He refers to the case of Hewlins v. Shippman as overruling many English cases; and to 15 Wendell 380; 3 Kent’s Com. 451; 6 Wendell 461, 464, as overruling other cases in New York. But the judge still recognizes the rule for which we contend. He says, suppose the right a defendant claims could not be granted by a parol license executed, still the license may operate according to its own nature; and there is lio book which teaches that before a license is revoked or has expired, though it be not executed, a man is liable to pay damages for availing himself of it. It does not follow, by any means, that because a license is void for the purpose of conveying an interest irrevocable, it may not enure as a personal authority, and, until revoked, protect a defendant against an action for a wrong. It would be most strange if, because it could not operate as something more than what it professed, it should therefore be held void for its avowed object, and that, too, a perfectly legal one.

This review of the cases on this subject, shows that a parol license is sufficient to defeat an action of trespass, or trespass on the case. If, therefore, the defendant had parted with the right (exercised by the plaintiffs) to Dexter, and Dexter gave plaintiffs a license which protects them, as we think it does, the court erred in rejecting the evidence offered by plaintiffs on this point. We do not understand the evidence was rejected because Dexter had no power to grant such a license, but because it was inoperative, not being in writing, and, therefore, as against defendant, no protection,’since his right to occupy the land could not be contested by a stranger, supposing defendant to have the fee in the land. Dexter never revoked Ins license, but appears to have acquiesced in tbe validity of tbe sale to plaintiffs — at all events, be permitted plaintiffs to flow tbe land. Defendant in bis declaration, alleges bis seizin in fee and possession. This is an assertion that tbe fee was in him. 5 Cruise’s Dig. 58, 289. That tbe title of plaintiff must be proved as laid, see Saund. Pl. and Ev. 687; 2 Saund. R. 113 a, n. 1, 206 a, n. 22, and 207 a, n. 24. This, as a general proposition, is true. There are some cases in which a seizin in plaintiff will be presumed, as when be claims title against a trespasser on lands in possession of plaintiff. But in this ease there is no proof that defendant claimed title of any kind. He did- not enter, or bold by color of title, and be seeks damages against persons in possession of that portion of the lands in question, by flowing them, and who bad so possessed them by flowing them for years before tbe defendant took possession. Tbe seizin of defendant* could not be presumed to a greater extent than bis actual possession. If not, there is no injury done to defendant. Tbe action is for damages to that of which the defendant has not, by his own showing, any actual possession, for it is flowed by plaintiffs. Had tbe defendant a paper title, whether good or bad, if be entered by color of it, plaintiffs might be called upon to show then- right beyond a mere possession; but such is not the case here. It is manifest a mere intruder, or occupier cannot claim, as in this case, for an injury to the inheritance, without showing he bad an interest in it to be affected by tbe plaintiffs’ acts. A tenant m possession and tbe reversioner or remainderman may each have bis action for tbe same nuisance at tbe same time; and, therefore it is, that tbe particular interest stated, in respect to which the suit is brought, becomes material.

Color of title, under a deed and occupancy of a part, will be sufficient proof to constitute an adverse possession to a single lot. 1 Cowen 286. This principle applies only to cases where there is no actual occupancy under a different claim.

In Jackson v. Vermylia, 6 Cowen 681, the court say, “if A. takes a conveyance or lease of a whole lot, say 63 acres, and improves part, bis possession is valid for the whole lot — not on tbe ground of having title which draws tbe possession after it until an actual adverse possession commences; but on the ground of a claim of title to the whole, and a possession of a part, which constitutes a good adverse possession. When a valid possession is acquired in the latter mode, it cannot be defeated by a subsequent entry on the same lot, making an improvement of a part and obtaining a title to the whole. The effect of such subsequent entry would be, to give the person so entering possession of the part actually occupied and improved, but no further.” Apply these principles to the present case, and without regard to the license from Dexter, and the fact that the defendant had parted with all his right, whatever it was, to prevent or interfere with the flowing of the land in question: plaintiffs enter and occupy the land by flowing it; defendant enters upon another part of the land without color of title — both being equal in the character and extent of their title — he must be confined to that part actually occupied by him. 10 Wendell 639.

Upon an examintion of the charge of the judge, and applying to it the principles of law which we have gathered or deduced from the cases I have cited, I am of the opinion that the court erred in rejecting the offered evidence of Mr. Dexter. That the court erred in its instructions to the jury that “proof of occupancy and possession of the premises by defendant during the time in question, would be sufficient to sustain the allegation of seizin.” The court erred in refusing to instruct the jury that there was no legal evidence before them that the plaintiff was the owner of the premises mentioned in the pleadings, at the least the part flowed by plaintiffs, as the defendant did not enter into any part of the premises, or hold by color of title, or any claim besides that of a mere occupant. I think the plaintiffs entitled to this instruction in relation to the land flowed at the time defendant entered into possession. The charge of the court assumes that defendant, by entering into the possession of a portion of land and occupying it, had a right to the whole, and that his possession was evidence of his seizin of the whole, and that plaintiffs, failing to show any right to flow the land, were, trespassers. But, as I have said, mere occupancy or possession, without color or claim of title, cannot be evidence of seizin, partiularly as against a prior occupant,; and without showing title, or a possession under a claim of title, defendant’s possession or right by virtue of it, must be restricted to the land he actually occupied.

I am therefore of the opinion that the circuit court erred in its instructions to tho jury, and that the judgment below must be reversed and the cause remanded, with instructions to issue a venire facias da novo.

Judgment reversed and venire de novo.


author: jBy the court.

text:
    Whipple v. Williams.
    An affidavit that is not correctly entitled in a cause, cannot be used therein.
    A writ of error was sued out in the names of W. and R. On motion, W. was allowed to sever in the prosecution of the suit. Affidavits sudsequently drawn Up and entitled in the name of W. and R., were held to be erroneously entitled.
    Mr. Douglass moved .to strike a bill of exceptions from the record. The affidavits he proposed reading in support of his motion, were entitled, “ Gardner D. Williams ads. Charles W. Whipple and Theodore Romeyh.”
    Mr. Davidson^on the part of the plaintiff, objected to the reading of the affidavits, as they were not entitled in the cause. 4 Hill 19.
    It appeared that the writ of error was originally in the names of Whipple and Romeyn, but that on the 3d January, 1844, on motion, Whipple was allowed to sever in the prosecution of the suit, and that the affidavits had been drawn up since that time.
   jBy the court.

Affidavits must be correctly entitled in the cause in which they are to be used; otherwise an indictment for perjury would not lie upon them, if false. 2 Cowen 509. Notices and other papers are sufficient if they do not mislead. Since the severance there is no, such cause in this court as that in which the affidavits are entitled.

Motion denied.


text:
    Savier v. Chipman.
    The statute, Ses. L, 1842, p. 135, S.'4, provides, that no justice of the peace shall hold any court, or hear an examination, in any bar-room, grocery, or other room or place where spirituous or intoxicating liquors shall be sold. Where it appeared from the justice’s return that, on the day of trial, the cause was called jn the bar-room of a tavern and adjourned to an adjoining room in the same house, but that the justice had no knowledge spirituous or intoxicating liquors were sold there, and no proof of the fact was offered on tire trial, the court refused to reverse the judgment.
    The court will not presume spirituous liquors are sold in the bar-.room of a tavern, when by law every license to keep a tavern does not authorize the sale of spirituous liquors.
    Pacts that come to the knowledge of a justice after the tria} of a .caus.e grp properly no part of his return, and must be rejected.
    Prror to St. Joseph Circuit Court,
    • Gurney & Hammond, for plaintiff in error.

      Phipmay, in person,
   By the court,

Green, J.

In 1846, Chipman sued Savier in a justb ,ce’s court in the county of St. Joseph, and recovered a judgment for $40 damages, and $3 91 costs of suit. Savier, conceiving himself ag? grieved by such judgment, jmade a special affidavit, under the provt sions of section 10 of the act of 1845, Ses. L. 1845, p. 101, and ap.pealed therefrom to the circuit court of the county. The cause was tried by a jury in that-court, at its March term in 184'?, and the plaintiff below obtained a verdict and judgment against the defendant below for $42 45 damages, with costs of suit.

Exceptions were taken on the trial, and a bill of exceptions was setpled and signed, and made a part of tbij record; and the defendant thereupon removed the record into this court by writ of error.

It appears from the bill of exceptions, a motion was made by the appellant in the circuit court to reverse the judgment of the justice, on the ground the return showed the court was held in a bar-room or place $yhere spirituous liquors were sold, and that, therefore, the justice had no jurisdiction; and that the circuit court decided the return did not show that the justice held his court in a bar-room or place where spirituous liquors were sold, and that the question arising upon the return was not one of jurisdiction, but one that should have been taken advantage of, if at all, by plea in abatement, if the facts were disputed, or upon motion to dismiss the action, if the facts were undisputed.

The errors assigned are, that the circuit court erred in denying the motion to reverse for the reasons specified in the bill of exceptions, and also that the justice had no jurisdiction of the case.

The only question involved in the case seems to be, whether the justice’s court, before which the suit was tried, was holden in a bar-room where spirituous or intoxicating liquors were sold. Ses. L. 1842, p. 135.

The justice’s return shows, that on the day of the trial of the cause it was called in the bar-room of a tavern, and adjourned from that room to one adjoining in the some house, but that the justice had no know!» edge that spirituous or intoxicating liquors were sold there, nor was any proof of such fact offered upon the trial. Whatever information the jus* tice acquired upon inquiry afterwards, not having been judicially before him in the case, cannot be regarded here, and shordd not have constituted any part of his return. Such information may have been true, or it may have been false. It comes upon the record without any sanction making it evidence. Excluding, therefore, all that relates to information derived from the keeper of the house or others, after the trial, the return only shows that the tcause was called and adjourned in a barroom, but not that any kind of spirituous or intoxicating liquors were sold there.

If, under the statute then in force relating to taverns, every license to a tavern keeper authorized the sale of spirituous liquors, it would then seem to be a fair legal presumption that such liquors were sold in every ■ bar-BOom of a tavern; but by the revised statutes of 1838, p. 206, see. 23, provision was made for granting licenses to tavern keepers which should not authorize the sale of brandy, rum, or other spirituous liquors' or wines. It cannot, therefore, be presumed, from the mere fact that the room in question was the bar-room of a tavern, that it was a barroom or place where spirituous or intoxicating liquors ioere sold.

This cause having been tried before the justice within the general limits of liis territorial, jurisdiction, and lie having acquired jurisdiction of the cause and of the parties by a regular course of proceeding, any special circumstances which would take away that jurisdiction, ought to appear in the record; and no such circumstances appearing, the judgment of the circuit court mnst be affirmed, with costs to the defendant in error.

Judgment affirmed.