author: Chkistiancy J.:

text:
    Augustus P. Tucker and another v. William P. Mowrey.

      ¿Sale on Sunday. — A contract of sale made on Sunday is void; and tb© vendor zuay, (on a subsequent day, tender back tb© purchase price, and recover bis property by replevin if it is not restored on demand.

      Heard April 28th.

      Decided May 17th.
    Error to Branch Circuit.
    The action below was replevin by Mowrey against the plaintiffs in error, for a horse which had been sold by him to one of them on Sunday. The rulings of the Court below sufficiently appear by the opinion.

      T. M. Cooley, for plaintiffs in error,
    cited Adams v. Hamell, 2 Doug. Mich. 73; 15 N. H. 577; 12 Met. 24; 1 Hill, 76; 2 Sandf. 318; 19 Barb. 581.

      W. A. Moore, contra,
    referred to 19 Vt. 358; 6 Bing. 653; 3 B. & C. 232 ; 10 Ala. 556.
   Chkistiancy J.:

Can the vendor of property sold and delivered on Sunday, by tendering to the vendee the consideration received, recover back the property as if no such sale had been made?

The Court below charged the affirmative of this propo' sition; and if correct, the judgment must be affirmed, The statute (R. S. of 1846, Chap. 43, Sec. 1; Comp. L. § 1574) provides that “No person shall keep open his shop, warehouse or workhouse, or shall do any manner of labor, business or work, except work of necessity or char' ity, on the first day of the week; and every person so offending shall be punished by a fine not exceeding ten dollars for each offense.’’

It was held in Adams v. Hamell, 2 Doug. Mich. 73, that this statute rendered void a contract made on Sunday for the exchange of horses, and a note given for the difference.

This decision we fully approve. The statute not only makes it a penal offense, but takes away, the legal capacity of the parties to make a contract on that day. And. whether the supposed contract has been executed or remains executory, we think the rights of the parties are to be determined in the same manner as if no such com tract had ever been made. The contract as such can neither be set up as the basis of an action, nor as a ground •of defense. If it be a contract of sale accompanied by payment and delivery, as supposed in the present case, no property passes, and the vendor, by tendering back what he has received, may reclaim the property, and the vendee, on tendering back the property, may recover the money or property given in payment or exchange, as if no pretence of such contract existed.

Whether the action could be sustained without such tender, is a question which does not arise in this case, and we therefore express no opinion upon it. But being utterly void, the contract is incapable of ratification.

Doubtless the subsequent acts and assent of the parties may be such as to create a new contract, but they can not ratify that which is void. And perhaps the acts and conversations of the parties on Sunday, in reference to a contract, might be shown as explanatory of their subsequent acts and conversation. tending to show a new contract.

As a general rule, courts of law have left the parties to an executed illegal contract in the positions in which they have placed themselves, refusing' to aid either of them, when equally in fault. But this is a question purely of public policy, and consequently there are exceptions to the rule. Courts should give or refuse their aid as the one or the other course will be most likely to discourage such contracts, and to promote the public welfare. The illegality here in question is of a peculiar kind. The contract is not illegal in respect to the consideration, or the thing done or agreed to be done; these are neither immoral nor forbidden by law. The illegality consists wholly in making the contract on a particular day. This suit is not brought to enforce the contract, but in disaffirmance of it. And we think it much more in accord, anee with sound public policy to treat the contract as utterly' void, and to allow the plaintiff, by ■ tendering back what he has received (or doing what is in his power to place the vendee in statu quo), to recover back his property, than to refuse him a remedy, and thereby to affirm the contract as valid. To refuse all remedy in such cases would be to \ open a wide door to fraud. It would operate, not only as a trap to the ignorant and unwary, but as a direct encouragement to swindling. We do not apply this remark to the parties or the transaction in the present case; for the transaction may have been entirely honest: but we can not fail to see that if all remedy were refused in such cases, a shrewd and dishonest man, knowing his victim could obtain no legal redress, might, by fraudulent representations, or by tempting offers which he could well afford to make, obtain money or property to any extent without consideration or liability to pay.

One object of the statute was to prevent the making of contracts on Sunday; but to refuse to sustain an action to recover back property sold on Sunday, would be offering a premium to tbe dishonest to make their contracts on that day.

The rule we have adopted takes away from all parties this temptation. We think, therefore, there was no error in the charge of the Court upon this point: and this disposes of the case. The judgment of the Court below must be affirmed, with costs.

The other Justices concurred:


source: Caselaw Access Project

author: Campbell J.:

license: Public Domain

text:
    Nathaniel P. Jacobs v. Frederick A. Stokes.

      Prohibitory Liquor Law: sti.it to recover money paid for liquors. — The statute — Comp. L. §1662 — authorizing moneys paid for liquors to be recovered back, is aimed at sales in the ordinary sense of the term, where the title passes from one owner to a new and different one; and not to releases on the dissolution of a partnership.
    It was accordingly held, that where one partner purchased of his co-partner the interest of the latter in the partnership stock, he could not, under the statute, recover back the money paid for such interest.
    Although the Prohibitory Liquor Law avoids all contracts the consideration of which, in whole or in part, consists of liquors sold in violation of the statute, yet if a purchase includes other articles besides liquors, and has been paid for, the statute does not authorize a recovery by the purchaser beyond the amount actually paid for the liquors.

      Submitted on briefs May 17th.

      Decided May 24th.

    Error to Wayne Circuit. Tbe facts appear by tbe opinion.

      D. ‘O'. Holbrook, for plaintiff in error,
    contended that the statute authorizing a recovery for money paid for liquors, did not apply to the case of one partner buying out the interest of his co-partner in the joint stock: and that the recovery for other goods besides liquors was not warranted by anything in the statute. Also, that plaintiff should have offered to rescind the contract and restore the goods before bringing suit to recover the consideration paid therefor.

      A, Pussell, for defendant in error:
    A sale or transfer of Iproperty from one partner to. another does not differ from a similar transaction between parties not standing in that relation.: — Story on Part. § 373 ; Col. on Part. § 884.
    It is true, a sale of this kind passes only the interest of the retiring partner; but what more does any sale effect than to transfer the interest of the vendor ? It can make no difference whether this interest embraces the whole title or an undivided portion.
    The plaintiff is entitled to recover the whole of the money paid, without deducting that portion paid for gro«. ceries.
    There was one entire contract for the sale of the whole stock.
    The statute expressly provides that all agreements, the consideration whereof, either in whole or in part, shall have been the sale of prohibited liquors, shall be utterly null and void. And even if the statute had been silent, the maxim “ void in part, void in totoj’ would apply to its fullest extent. If any part of the entire consideration for a promise be illegal, whether by statute or common law, the whole contract is void: ■— 1 Pars. Cont. 380 and cases cited; Wesleyan Seminary v. Fisher, 4 Mich. 526; Story on Notes, § 190; 28 Vt. 308; 9 N. H. 196; 2 Gray, 258.
    Defendant could only avail himself of this defense by showing that a separate price had been affixed to each article, and a distinct consideration paid.
    Every dollar paid generally on this contract, without appropriation by either debtor or creditor to the groceries, has for its consideration liquor in part. The law will not apply any payment to the groceries to shield defendant from the consequences of an illegal act.
    The rule that the Court will aid neither where an illegal contract is executed, does not apply, for our statute treats the buyer as innocent. It is not made an offense to buy: —14 N. Y. 94, 163, and eases cited.

   Campbell J.:

Stokes sued Jacobs for the purpose of recovering back money paid to him on an alleged illegal purchase of-liquors. Evidence was introduced to show that the parties owned the stock of groceries and liquors as partners, and that the purchase was simply the buying out by Stokes of the partnership interest of Jacobs in the entire business.

The Court below was asked to charge, that, if this was the real nature of the transaction, the plaintiff below could not recover. The Court refused this, and charged that if such were the case he could recover.

We think the Court erred in so deciding. The purchase by one partner of the interest of his co-partner creates no transfer of the entire property at all like that where, by the sale, a new' party becomes vested with the title. It creates the same sort of title which would arise upon the death of a partner by survivorship of the other. No new person is introduced into the ownership.

The statute is aimed at sales in the ordinary sense of. the term, where title passes from one owner to a new and different one; and not to releases upon the dissolu. tion of a partnership. None of the mischiefs aimed at by the law can arise from such, transfers.

Plaintiff below was also held entitled to recover, not only the price of liquors, but also the price of other gro. ceries, purchased and paid for at the same time. This question only becomes material in the absence of any partnership.

The statute avoids all contracts 'the consideration for which, in whole or in part, consists of liquors sold in violation of law:— Comp. L. § 1662. But by the same section the right to recover back payments includes only “payments for such liquors hereafter sold in violation of law.’’ No money therefore can be recovered except such as has been paid for liquors illegally sold.

The plaintiff was bound to show how much money he had paid for the liquors.

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

Martin Ch. J. and Christiancy J. concurred.

Manning J. was not present at the decision.


text:
    Pierre Teller v. Henry Willis.

      Statute of Limitation: Writ of error. — The statute limiting the time for bringing writ of error, commences running from the rendition of the judgment, and is not affected by the settlement of exceptions afterwards.

      Settlement of exceptions after error brought. — A party is not obliged to wait until his exceptions are settled before suing out his writ of error. The exceptions, if sealed, and filed after error brought, may be brought up like any other omitted portion of the record.
    The Supreme Court will always give a plaintiff in error the benefit of his exceptions,— unless by his fault or laches he has occasioned the delay himself— by extending the time for return, or for the assignment of errors, or by allow* ing a new assignment, as the case may require.

      Heard May 17th.

      Decided May 24th.
    This cause having heretofore been dismissed as not brought in time [ante p. 268], a motion was now made to reinstate the same, on affidavits stating facts to excuse the delay.

      G. "Woodruff for the motion:
    The main question is, whether the statutory limitation of writ of error to two years from the judgment, or other final determination of the [case, begins to run pending the settlement of a bill of exceptions.
    The affirmative of this question can not fail to strike harshly upon every ear at all sensitive to the discordant utterances of the law. It is a case so hard that it ought to find no countenance short of the imperial mandate of stare decisis. And that we say has not been proclaimed.
    A statute limiting the period during which a writ of error may issue is not more imperative nor entitled to a stricter construction than a statute limiting the period during which an action may be commenced in a court of original jurisdiction. Nay, the accidents to which witnesses and documents are liable in the latter, constitute a distinction. in favor of less strictness in regard to the former.
    Now in regard to the general statutes of limitation, which are essentially in pari materia, it has been settled that if, at the time the right of action accrues, there is no person who can sue, and no one who can be sued, the limitation will not begin to run till there is such a person in esse: — 5 B. & Ald. 204 ; 15 Conn. 149; 1 Johns. Cas. 76. So when the right of action is suspended: ■ — 12 Wheat. 129. And even when it is liable to be suspended: — 4 Mass. 16. See particularly pages 25, 26, 27, 28 and 29.
    Though the particular statute in question here does not in terms provide that the period limited by it shall commence from the time the right to the writ accrues or it can be issued with effect, yet by all analogy of construction that condition is implied.
    The impossibility of issuing the writ of error until the bill of exceptions was settled, without defeating the entire object and end of issuing it at all, is supposed to be sufficiently clear upon the authority of 2 Tidd Pr. 863 and the pase of Dillon v. Parker, 1 Bing. 17.

      IS. G. Hinsdale, contra.
   Campbell J.:

Plaintiff in error moves to reinstate this case, which was dismissed as brought into Court too late. The affidavits show that the bill of exceptions, which was signed under a mandamus from this Court, was delayed, in its final settlement, at the request of the counsel for defendant in error. There was no laches in plaintiff in error, or his counsel, up to the time of signing the bill of exceptions. The Avrit was issued and served Avithin a year from that time, but more than two years after judgment.

We think there can be no doubt that the statute bar commences running from the rendition of judgment: — Fleet v. Youngs, 11 Wend. 522; Lee v. Tillotson, 4 Hill, 27; Manhattan Co. v. Osgood, 1 Cow. 65. The exceptions do not operate upon the judgment in any way, until steps are taken to remove the cause for review. And we do not well see how any saving clause can be introduced into the statute, which is not within the fair meaning of its language.

The question then arises, whether a party is bound to wait for the sealing of a bill of exceptions before he issues his writ of error. It is said by Mr. Tidd (2 Tidd's Pr. 863) that by bringing a writ of error before the bill is signed, it is waived. For this he cites Ditton v. Parker, 1 Bing. 17; S. C. 11 Price, 100. The report in Bingham sustains this view,' but the report in Price is more full, and it there appears that while Wood L. took this view, Parke and Burrough, JJ. placed their decision upon a different ground. The case was an application to the Court of Exchequer Chamber to compel the defendant in error to settle a bill of exceptions, .so that the Judge who tried the cause might seal it, and also for an order directing the transcript to be amended by annexing the bill of exceptions when it should be completed. The majority put their decision upon the ground that the Court of King’s Bench must be applied to, in order to obtain the settlement, after which it might be brought up by an allegation of diminution, thus distinctly intimating that when sealed and filed it might be brought up Llike any other omitted portion of the record. ■ The same question came up in the Common Pleas, in Willans v. Taylor, 6 Bing. 512, where, after the case had been removed by writ of error, an order was obtained requiring the plaintiff below, who had retained the copy of exceptions served on him, to return it for settlement. The case of Dillon v. Parker was referred to, and the Court held that it decided nothing which would prevent a party from being entitled to have his exceptions settled; and plaintiff was compelled to obey the order, the Court refusing to discharge it. They said it would be for the' .court of error to determine whether it would be allowed to be taken up after settlement. It appears by the report of the same case in the Exchequer Chamber, Taylor v. Willans, 2 B. & Ad. 845, that a» order was subsequently made in the court of error, allowing the bill of exceptions to’ be tacked to the record; and the decision of the appellate court is based wholly upon the questions raised on exception.

In Willans v. Taylor, the counsel for the plaintiff in error, in order to show that the Court in Dillon v. Parker could not have held a writ of error to be a waiver of exceptions, referred to the almost uniform practice that has always prevailed, of issuing writs of error before judgment is entered (and therefore before exceptions are ever in fact settled), in order to prevent execution. Mr. Tidd recognizes this as the usual practice: — 2 Tidd’s Pr. 1141; see also Arnold v. Sandford, 14 Johns. 417; Richardson v. Backus, 1 Johns. 493.

It is a very common practice to allow parties in error to supply deficiencies in the record, and to apply to the Court below to have the record corrected. In the case of the Manhattan Bank v. Osgood, 1 Cow. 65, the Court of Errors of New York gave leave to plaintiffs in error to withchaw their assignment of errors, and to apply to the Supreme Court to have the real date of giving judgment made to appear, and also to send up the bill of exceptions, when more than five years had elapsed since the date of which judgment was rendered, and that lapse was set up in bar of the writ. It is manifest that cases might easily arise, of which the one before us is an illustration, where the statutory bar might become complete before exceptions could be obtained from the Judge settling thfem. It would lead to singular results, were there any waiver of exceptions caused by suing out a writ before settlement. In Lord Hale’s notes to Fitzherbert’s Natura Brevium, vol. 1, p. 22, note d., occurs this passage. “ By good opinion, one of the justices may deliver the bill into Court without a scire facias ; yet in that oase (11 H. 4. 65,) a scire facias issued, and the justices name and acknowledged their seals; and it was held, that this acknowledgment of the justices might be made long time after the writ of error brought, and after the scire facias awarded, and that no new facias shall issue; for it is now become parcel of the record ah initio, as in the case of diminution alleged after a scire facias. The defendant shall not allege diminution in the bill of exceptions, but ought to have shown his case when the justices came to set their seals. See 1 H. 4, 92. See also 11 H. 4, 67 and note ; 11 H. 4, 92, per Gascoign and Huls. it was held clearly, that the bill may be sealed after the record removed by writ of error.”

Our statute also plainly contemplates that the proper steps may be had to compel the signing of a bill of exceptions by the Judge who tried the cause, without reference to the issuing of a writ of error:— Comp. L. § 4406. But we conceive the rule very clearly settled by the authorities referred to. _ The Supreme j Court will always give a plaintiff in error the benefit of his exceptions, unless by his fault or laches he has occasioned the delay himself, by extending the time for return, or for the assignment of errors, or by allowing a new assignment, as tbe case may require.

The question involved in this motion came up in Brown v. Bissell, 1 Doug. Mich. 273, where it was held by this Court, under our former statutes, that a bill of exceptions signed after error brought was at most merely irregular; and the English cases in 6 Bingham, and 2 Barn. & Ad. were cited as showing that such a bill was good. We have [thought it our duty to examine into the matter somewhat at length, as the counsel for plaintiff in error has been misled by the doctrine laid down by Mr. Tidd, into a mistake which, as the facts appear to us, we regret exceedingly that we are not able to rectify. As the statutory bar is complete, we are compelled to decline to reinstate tbe case. The equities being very plainly with the plaintiff in error, we deny his motion without costs.

Martin Ch. J. and Christiancy J. concurred.

Manning J. was absent at the decision.


author: Campbell J. :

text:
    The People on the relation of the Attorney General v. The River Raisin & Lake Erie Railroad Company.

      Pleadings on information for usurping corporate powers. — In an information in the nature of a quo warranto^ it is not necessary to set forth the franchises and privileges alleged to be usurped, except in general terms. It is always the right of the government to call upon those who assume corporate powers, to show by what warrant they do so; and when the defendants set forth their claims by plea, the Attorney General may show by replication the special grounds he relies on.

      Corporation confined to the purposes for which it was created. — Where by its charter a corporation is confined lo one kind oí business, it can not lawfully engage in enterprises foreign to tliat business. A railroad company whose purposes are strictly confined to tlie completion and maintaining of a railroad, can not lawfully engage in banking.

      BanloVng powers, what are. — The issue of paper designed to circulate, in the form and similitude of bank bills, is an'act of banking.

      Duplicity in pleading. — A replication wbiob, to show that defendants usurp the franchise of banking, avers that certificates issued by them are in the similitude of bank bills, and also that they are issued with intent Jto be put in circulation as money, is open to objection for duplicity.

      Immaterial issue. — Information, calling upon defendants to show by what right they assume to exercise banking powers. Plea, setting forth a charter of defendants as a railroad corporation, which gave them no authority to issue circulating notes; and stating the issue by defendants of certain certificates which, as described, might or might not be within the statute against unlawful banking, and then denying that defendants have exercised the franchises charged “except as aforesaid.” Held, that as the plea neither confessed nor denied the exercise of banking powers, the issue tendered by it was immaterial. ^

      Heard April 15th and 16th.

      Decided May 24th.

    Information in tbe nature of a quo warranto. The case was brought to a hearing on demurrer to the replication, and the pleadings are sufficiently stated in the opinion.

      Backus & JSarbaugh and T. JRomeyn, for defendants:
    1. The plea is bad as being a departure in pleading.
    The information charges solely the usurpation by the defendants of the franchise of banking, and on that ground alone asks judgment against them. This charge is distinctly traversed and put iu issue by the plea; all the other matters set forth in the plea are mere inducement, and immaterial to the issue made by the traverse of banking, or no banking, charged in the information. This issue by the replication is abandoned, and a new charge set up thereiu; that of an admitted corporation violating a criminal law of the State by issuing bills in the similitude of bank bills.

    2. The replication sets up three distinct and independent facts: 1st. That the evidences of debt granted to J. Q. Adams, are in the similitude of bank bills; 2d. That said J. Q. Adams was, at the time of granting said evidences of debt to him, president of said corporation, and said evidences of indebtedness were signed by him; and, 3d. That said evidences of debt were granted and issued to him with an intent that they should be put in circulation as money. Which of these three distinct propositions is issue to be taken upon? Which, if either, is material to the question of banking, or no banking?' The replication is manifestly bad, not only as tendering an immaterial issue, but as double and uncertain.
    3. The replication is bad in substance, even were the matters therein pleaded sufficient; for want of an averment of an intent, on the part of the defendants, that the evidences of debt should be put in circulation as money.
    4. The only charge in the information, and traversed by the plea, is the usurpation of banking powers.
    Banking powers have been defined to consist of issuing negotiable notes, discounting notes, and receiving deposits: People v. Utica Insurance Co. 15 Johns. 390; People v. Manhattan Co. 9 Wend. 383 ; 2 Cow. 710; Bouv. L. Dic. tit. “ Banks and Banking."

    All this is fully met and denied by the plea, distinctly putting in issue the charge alleged in the information.
    This plea is wholly unanswered by the replication, which charges (insufficiently either for an information or plea) a new and distinct offense, created by section 5, chapter 50 of the R. S. of 1846, as amended by the S. L. of 1853,— that of issuing evidences of debt in the form and having the appearance of bank bills. The law under which this charge is made is in these words: “No person, association, or body corporate, whether public or private, except such bodies corporate as are or shall be expressly authorized by law to do a regular banking business, and to issue bank bills, shall issue any bills, notes, due - bills, drafts or other evidences of debt, in the similitude of bank bills, or to be loaned, or put in circulation as money, etc.” The replication nowhere avers either that the defendants’ corporation is not expressly authorized to do a regular banking business, and issue bank bills, or that the defendants issued the bills, or evidences of debt, to be loaned or put in circulation as money. Such a charge would be bad in an indictment or information, and is equally bad in a plea: — Koster v. The People, 8 Mich. 431.
    In proceedings by information of quo warranto, facts necessary to be alleged to show a neglect of duty, must be set out with all the exactness of' pleading required in an action for a penalty: — 23 Wend. 198; 23 Wend. 223.
    Where an offense is created by statute, and there is an exception in the enacting clause, the indictment must negative the exception: —11 Shep. 232.
    Upon every principle, therefore, the replication is bad.

      A. Williams, Attorney General, and T M. Cooley, for the People.
    1. The plea is bad. The denial that defendants have' used the franchise of a '^banking corporation, is coupled with an admission that, so far as issuing these certificates of indebtedness is concerned, they have done so. Issuing bills to circulate as money is the exercise of banking powers : — 2 Cow. 710. But such powers never having been-, conferred, this corporation does not possess them: — 2 Cow. 709; 11 Ohio, 1; 11 Ohio, 96; 15 Johns. [358. For the-restraining act then in force, see Laws of 1833, p. 530, copied from N. Y. Laws, 1804, p. 615. If the plea does not assert the right of banking, to the extent of issuing these bills, the facts it sets forth are immaterial.
    2. There is enough on the face of the certificates to-show that they were designed to circulate as money. They are in the form of bank bills, signed by a cashier, payable to the hearer'. — 4 Edw. Ch. 138, 170; 9 Paige, 471; 4 Barr, 328.
    3. The replication is not double. It presents the single' point that the notes are issued with intent to be put in circulation as money. All the facts recited bear directly upon that point. The form they bear is only important as characterizing the intent: — 15 Wend. 357; 1 Burr. 317.
    4. The intent of defendants is charged in the same manner in which the intent is always charged in criminal cases. See forms, 2 Arch. Cr. Pr. by Wat. 1, 5, 20, 25, 28, 33, 35, 180.
   Campbell J. :

The Attorney General filed an information, charging defendants with usurping the following liberties, privileges and franchises, viz: “That of becoming proprietors of a bank or fund, for the purpose of issuing notes, and transacting other business which incorporated banks may and do transact, by virtue of their respective acts of incorporation, and also that of actually issuing notes and carrying on banking operations, and other monied transactions, which are usually performed by incorporated banks, and which they alone have a right to do and inquiring by what warrant they claim to use those franchises, &c.

The plea sets up the charter, and avers that under it the corporation was authorized, among other thing's, to “grant such evidences of debt which might be incurred by said company, as may be by the by-laws thereof directed, to such an amount as should be deemed necessary for the transacting of the business of the same” — “Provided such by-laws should not be contrary to the constitution or laws of the United States, nor of the State of Michigan.” The plea proceeds to set forth certain bylaws requiring the president to sign, and the treasurer, as cashier, to countersign, all evidences of debt; which, by the same by-laws, were required to be in the form of a promissory note, payable to bearer on demand, at the office of the company in the city of Monroe: That from time to time large liabilities were adjusted by such evidences of debt, to tbe amount of $200,000: That one James Q. Adams became the owner of a large amount of these, and presented them for adjustment, and they were adjusted by issuing similar evidences for the principal and interest due him: And the plea then denies that the defendants have exercised any of the liberties, privileges or franchises, charged by the information, “except as aforesaid* / and this they claim a right to do.

To this plea the Attorney General replied, that the evidences of debt granted to Adams were granted and issued to him “in the form, and having the appearance, of bank bills, in sums of one dollar, two dollars, and three dollars, [the same being printed from engraved plates of the size in which bank bills are commonly issued, and with vignettes and other devices thereon which are usually ■found upon bank bills;’’ that Adams was president, and signed the certificates of indebtedness as such, “ and that the same were so granted and issued to him, with intent that they should be put in circulation as money;” áse.

To this the defendants demur; 1st, because they say the replication is a departure; the offense set up not being the same set forth in the information: 2nd, for duplicity, as charging, (1) that the evidences of debt were in the similitude of bank bills, ■ and (2) that they were intended to circulate as money: 3rd, that it does not aver an intent in the defendants that they should be put in circulation as money; 4th, that it does not admit, deny or traverse the plea; 5th, that the plea traversed the information, and the replication does not join issue upon it.

It is very well settled that, in an information in the nature of a quo warranto, it is not necessary to set forth the franchises and privileges alleged to be usurped, except in general terms. It is always the right of the Government to call upon those who assume corporate powers, to require them to show by what warrant they do so; and when the defendants set forth their claims by plea, the Attorney General may reply and show the special grounds he relies on: — 2 Kyd on Corp. 399, 403, 440 ; Ang. & A. on Corp. §§ 734, 756, 759, 760; People v. Bank of Niagara, 6 Cow. 196; People v. Bank of Hudson, 6 Cow. 217. The information in the case before us is precisely like that in People v. Bank of Niagara, and People v. Utica Insurance Co. 15 Johns. 358. The first question, therefore, which arises, is whether the matters set forth in the replication depart from the information, or, in other words, whether issuing notes payable to bearer on demand, intended to circulate as money, is business appropriate to incorporated banks, and not within the grants of defendants’ charter.

The charter of the defendants authorized them to “ grant such evidences of debt which may be- incurred by said company, as may be by the by-laws thereof directed, to such an amount as shall be deemed necessary for transacting the business of the same.’ Sec. 11, p. 362, Laws of 1836. Their right to purchase, hold, sell, lease, and convey estate, either real or personal, or mixed, is expressly limited to “so far as the same may be necessary for purposes hereinafter mentioned, and no further.’’ Sec. 3, p. 359. Those purposes are strictly confined to the completion and maintaining of a railroad. Any banking business would be foreign to such a charter; and it is difficult to conceive how evidences of debt “necessary for transacting the business of the corporation ’’ could be made to embrace paper issued for general circulation, and payable on demand. In the absence of restriction, it 'is very possible that a corporation may use the same incidental means, to accomplish a given purpose, that might be used by an individual; but where it is confined to one kind of business, it can not lawfully engage in enterprises foreign to that business.

By the general laws in force at the date of this charter, it was provided that no person unauthorized by law, should “subscribe to, or become a member of any association, institution, or company, or proprietor of any bank or fund, for the purpose of issuing notes, receiving deposits, making discounts, or transacting any other business which incorporated banks may or do transact by virtue of their respective acts of incorporation”: Laws of 1833, p. 530. It was held in Bristol v. Barker, 14 Johns. 204, by somewhat nice verbal criticism, that an individual without partners was not liable to the penalty of this act, for doing a general banking bnsiness, of issue, discount and deposite. But in the case of The People v. The Utica Insurance Co. 15 Johns. 358, it was held that whatever might be the case as to individuals, no corporation or association could exercise these powers, without direct authority. In the case of The Utica Insurance Co. v. Scott, 8 Cow. 709, a note discounted by that company was held valid because the charter gave them express power to loan their funds. But the general doctrine can not, we think, be questioned; nor can a grant of a single power usually exercised by banks imply the right to any further and different banking powers. In re. Ohio Life Insurance & Trust Co. 9 Ohio, 291; Duncan & Maryland Savings Institution, 10 Gill & J. 299.

We do not deem it necessary, for the purpose of testing the sufficiency of the pleadings in substance, to examine into our subsequent penal statutes, concerning unauthorized banking,- as, if the issue of this paper constituted an act of banking, it was not within the charter powers of defendants. We think the issue of paper designed to circulate in the form and similitude of bank notes is an act of banking, and is unlawful for the defendants. But it is objected that the replication is double, because it avers that the paper issued by defendants was not only in the similitude of bank notes, but \yas also issued with the intent that it should be put in circulation as money. Either of these allegations would be suf ficient, under section 5899 of the Compiled Laws, to render the paper illegal, and subject the defendants to a forfeiture of their charter. It was held in People v. Bank of Hudson, 6 Cow. 217, that a replication may state a cause of forfeiture in very general terms, provided that they create but a single material issue. In the present case the facts all relate to a single alleged putting forth of illegal paper. But the only safe .test of duplicity is to see whether a single issue can be made to controvert the pleading, by denying any one material fact. If defendants were to deny the similitude to bank bills, the fact that the notes were intended to circulate as money would not be affected by the denial, and would form a complete cause of action. So if the intent were denied, there would be a good cause of action upon the similitude. No single rejoinder would dispose of the whole replication. We think the replication is open to the objection of duplicity. This renders it necessary for us to examine the plea.

When called upon to show by what warrant they assume to exercise any franchises, the defendants were bound either to deny the exercise of the franchises, or to show what franchises they possess of the kind set forth in the information, and their title to them. In this case the defendants set up all their claim under their charter. This is declared to be a public law, and being so we are bound to take judicial notice of it, and to disregard all allegations in conflict with it. We are bound therefore to take notice that the charter of the defendants gives them no authority to issue any paper within the restraining acts. They have set forth in their plea that they have issued certain paper which they describe. But that paper as described may or may not be . within the restraining acts. They therefore neither confess nor deny the exercise of banking powers, and the issue tendered by the plea is immaterial. Had they denied their exercise, the AttorHey General might have replied by averring the issue of illegal paper in such forms as he deemed proper, filing as many replications as he saw fit to raise separate grounds of complaint. Had they admitted the exercise of banking powers and set uj> their charter as authorizing it, if it had been a private act, issue might have had to be joined upon it, but inasmuch as it is a public act, the plea would have • been bad on demurrer. Having done neither, the plea is¿not issuable, and must be set aside.

An order must be entered setting aside the plea for insufficiency.

Martin Ch. J. and Christianoy J. concurred.

Manning J.^was absent when the case was decided.


author: Christiancy J.:

text:
    Frederick B. Leonard, President of the Bank of Lansingburg v. Charles W. Taylor and another.

      Belting aside sale in chancery: "laches, — A sale under a decree in chancery in a foreclosure case will not be set aside on the ground of surprise and inade* quate consideration, after a long unexcused delay, which has continued until an execution has been issued for a deficiency, and a sale made, under which third persons have acquired vested interests, and complainant has made payments to redeem from former sales.

      Petition to set aside sale: offer to increase bid,. — Petition being filed to set aside a sale under a decree in chancery on the ground of inadequate consideration, and the complainant — who was the purchaser — not having sought to take advantage of petitioner’s embarrassments, and not appearing to have been at any time unwilling to receive the amount due upon the decree and the amount paid to redeem from prior sales, and to transfer to petitioner all rights acquired by the purchase, it was held that, under these circumstances, at least» it was a fatal objection to the petition that it did not offer to pay anything to complainant, or to increase the bid, in case a re-sale was ordered.

      Heard May 19th.

      Decided May 24th.

    Appeal in chancery from Kent Circuit.
    The defendant Taylor petitioned the Court below to set aside a sale which had been made under á decree in chancery in a foreclosure case. The case was heard on the petition, and on affidavits and counter affidavits, the result of which is’ stated in the opinion. The Court below denied the prayer of the petition, and Taylor appealed.

      J. W. Longyear, for appellant.

      Ball db McKee, and T. M. Cooley for defendant.
   Christiancy J.:

We think the Court below properly refused to vacate the mortgage sale under the decree.

Assuming that the petitioner has sufficiently shown that the lands were bid in by complainant much below their real cash value at the time, that petitioner was misled by the assurances of complainant’s solicitor of his intention to bid them in for the full amount of the decree, that he was surprised by this, and neglected the efforts he would otherwise have made to raise the money or to procure bidders at the sale, — none of which facts can be said to be very clearly established — still there is no sufficient excuse shown for the long delay of the petitioner in making this application; especially as it clearly appears that during this delay, and as a consequence of it, the rights of other parties have intervened and become vested, which would be disturbed by granting the remedy now sought.

The sale was made November 15th, 1860. On the 8th day of June, 1861, the execution was issued for the balance due on the decree, and levied on the other real estate of the defendant (petitioner). This real estate had mostly if not all been already sold on executions in behalf of other creditors of the petitioner, but the xime of redemption had not yet expired. Complainant, to make his own execution available, was under the necessity of paying, and did pay, considerable sums to acquire the rights of the prior purchasers. A part of this property was again redeemed from complainant, or his right therein acquired by Boai’dman, another execution creditor of petitioner. The year allowed to the petitioner to redeem, as well as the additional three months allowed to execution creditors to acquire the rights of purchasers, under the execution, were allowed to exjsire, and deeds were executed by the sheriff upon such sales, before this application was made to set aside the original mortgage sale made under the decree.

The alleged assurances of complainant’s solicitor — that complainant was expected soon to be at Grand Rapids, and that an arrangement could be made satisfactory to petitioner — if clearly established, would hardly be sufficient, under such circumstances, to excuse such delay. But even these assurances are denied by the solicitor, and there is no evidence but his and that of the petitioner on the subject.

Nor do we see anything in the propositions made by complainant, or' which petitioner alleges complainant agreed to make and did not, which can excuse this long delay under such circumstances. The petitioner does not appear to have called upon complainant to make a proposition till near the end of June, 1862, more than a year after the levy of the execution.

We can discover nothing in the* case going to show that complainant has, at any time, been unwilling to accept the amount due him on the decree, with the amount paid to acquire the right of other purchasers, nor that he has sought to take advantage of the embarrassment of the petitioner to make a speculation out of his property. And, under such circumstances at least, it is a fatal objection to the petition that it does not offer to pay the complainant any thing whatever, and does not contain an offer to bid any higher sum, if the sale should be set aside, than that bid by complainant on the mortgage sale.

Tbe order of tbe Court below refusing the prayer of tbe petition, is confirmed, with costs.

Martin Ch. J. and Campbell J. concurred.

Manning J. was absent when tbe case was decided.


text:
    James W. Tillman v. The People.

      Way Si classification of.— Ways 'must be either public or private: there is no intermediate species of way for any purpose of passage.

      Ways: acceptance of dedication. — The adoption by tbe Governor and Judges of the plan of the city of Detroit, and the laying down of a street upon the plat made by them, did not, of itself,'constitute it a street or highway: this was but a naked dedication, which could only become effectual when accepted by the proper authorities on behalf of the public. People v. Jones, 6 Mich. 176.
    The acceptance should be manifested by some act of the public authorities, either formally confirming or accepting the dedication, and ordering the opening of the street, or by exercising authority over it in some of the ordinary ways of improvement or regulation.
    Where an alley was laid down on the plan of Detroit adopted by the Governor and Judges in 1806, and there was no act on the part of the public authorities accepting it, but the owners of adjoining lots were allowed to keep a large portion of it closed, and to erect valuable improvements upon and over it, until 1863, it was held, that it was now too late for the city to acquire any public rights in the part thus allowed to be closed, by acceptance alone.

      Ways: cul de sac. — Held further, that as that part of the alley not thus closed was but a cul de sac, furnishing means of access to the rear of the lots upon each side, it could only be considered as an easement appurtenant to those lots, and in no sense a highway. People v. Jackson, 7 Mich. 482.
    The parties interested in the adjacent lots would have a right to close this cul de sac, or to regulate its use as to them should seem proper, so far, at least, as respects its use as a way for passage or travel.
    And it makes no difference, in this respect, that buildings erected along it, but since removed, were for a time used as dwellings. Any right of way depending upon such use of the buildings would cease when the buildings were removed.

      Dedication for other purposes than for ways: acceptance. — If the laying down of alleys, by the Governor and Judges, on the plan of Detroit, is to be treated as a dedication for any public purpose besides that of ways for passage or travel, an accoplance or adoption of that dedication was just as essential to give them a publio character, for any other purpose, as to give them that oharaoter as ways.

      Heard May 4th.

      Decided May 24th.

      Error to the Recorder’s Court of Detroit, where plaintiff in error was convicted on a prosecution for obstructing a public alley. The facts sufficiently appear by the opinion.

      G. V. H. Lothrop, for plaintiff in error:
    1. Is one of the interior openings in a city block, used only as a passage'to the rear of lots, a highway, or only a private way or easement to the lots?
    It must be one or the other: — Ang. on Highways, 1, 3; 6 Pick. 62.
    If it was a highway, then, of course, an obstruction would be an offense under the general laws of the State, and not the subject of municipal legislation as punishment on matters embraced within the general statutes or common law.
    But it is clearly only a private way: — The People v. Jackson, 7 Mich. 445 ; 3 Hill, 606 ; 4 Cush. 339 ; 16 Barb. 251; 5 Seld. 258; 23 Barb. 115.
    2. If this was not a public highway, could the abutting owners, all concurring, extinguish the easement and close it?
    It seems to me plain that they could: — 7 Mich. 451; 4 Cush. 339; 3 Hill, 606; 5 Seld. 258, 260; 37 Penn. 503; 5 B & Ald. 457.
    Indeed, it seems doubtful whether the alley, regarded as a separate easement, does not at once become extinguished when all of the property over which it passes, and to which it. was appurtenant, falls into the hands of one owner. For, generally, a man can not have an easement in his own estate. By merger the less interest is extinguished in the greater: —5 Met. 450; Wash. on Easements, 517.
    Any act done by the owner of an easement, with respect to the dominant estate, which is inconsistent with the continuance of the easement, will operate as an extinguishment of it: — 9 Met. 395 ; Wash. on Easements, 537, and cases cited.

    And, a fortiori, when the titles of all the estates are united, any act of the owner, which shows that he intends that the easement shall no longer continue, must operate to destroy it.

      O. I. Walleer, for defendants in error.
   Christiancy J.:

This was a prosecution against the plaintiff in error, by complaint in the Recorder’s Court of the city of Detroit, for “ obstructing and incumbering a public alley in said city, running westerly from the westerly line of Griswold street, between Jefferson Avenue and Wood-bridge street, by erecting upon and in said alley, a small office or building, contrary to the ordinances of said city.”

The ordinance claimed to have been violated provides that “No person shall obstruct or incumber any public wharf, street, alley or other public space, with any article or thing whatsoever.’’ See Revised Ordinances of 1863, Ch. 29, § 5. This ordinance relates to no other alleys than such as are essentially of a public character, or which have, in some way, become established for the public use as public grounds; and which, therefore, the general public, or at least the people of the city, have a general interest in keeping, and a right to keep, unobstructed. The complaint must be understood (if it be sufficient for any purpose — a question we shall not discuss) — as intended to describe the alley in question as one of this public character. The power of the Common Council to prohibit by ordinance the obstruction of alleys of a private nature, made only by, or for the use of, the owners or occupants of particular lots, and depending only upon the consent or agreement of individual property holders, is not claimed, and could not he supported; though, for purposes connected with public health the Common Council would doubtless possess certain powers over private alleys and other private property.

But neither the ordinance in question, nor the complaint in the case, would seem to have any reference to acts affecting the public health: both speak only of “obstructing and incumbering streets, alleys, &c.” The object of this provision of the ordinance would seem to be mainly, if not entirely, so far as relates to alleys, to secure the use of them for purposes of passage and travel. And the language of the prohibition is appropriate to this end. The public character of the alley, so far as it depends upon its use, or ■ the right of the public to use it, in this manner, can only be maintained on the .ground that it is a public way or highway. Ways must be either public or private : there is no intermediate species of way for any purpose of passage.

Our first inquiry then, is, was this alley a public way or highway at the time of the obstruction or incumbrance complained of?

The alley was laid down upon the plan or plat of the city made by the Governor and Judges in 1806-'?, and, as exhibited upon this plan (upon paper), it extended through the block from Griswold street to Shelby street: but no part of the alley was ever opened by any one, ■or for any purpose, further west than the east line of the Campau lot, 182 feet west from Griswold street; thence through to Shelby street it has always remained closed. Across the west part of this 182 feet of the alley (which was formerly open) a brick building was ■erected within about six feet of the ground, to connect two stores (next the Campau line) on opposite sides of the alley. This building seems to have been erected prior to the obstruction complained of, which is further towards Griswold street. By the same plat of the Governor and Judges there was a spur or offshoot of this alley, extending southwardly from it between lots 48 and 50, to the rear of lot 49, where it stopped without connecting with any other passage. This spur, alley or cul de sac, was never opened, and is now covered by the block of brick buildings erected by Stephens & Field (the latter being the complainant in this prosecution). It does not appear from the evidence that the public or corporate authorities of the town or city of Detroit ever accepted or adopted this alley, or any part of it, or that they ever claimed or exercised any authority over it, by way of improvement, regulation or otherwise. rAnd so far as it has, at any time, been kept open at all, it has been by the acts or sufferance of the owners of the adjacent lots.

We held in People v. Jones, 6 Mich. 176, that the adoption by the Governor and Judges of the plan of the. city of Detroit, and . the laying down of a street upon the plat made by them, did not, of itself, constitute it a street or highway; that the action of the Governor and Judges, acting on behalf of the United States as proprietors, was but a naked dedication of the land for a street, and that, as in the case of other land owners, it was essential, before such dedication could become effectual, that it should be accepted by the proper authorities on behalf of the public: that such acceptance should be manifested by some act of the public authorities either formally confirming or accepting the dedication, and ordering the opening of such street, or by exercising authority over it, in some of the ordinary ways of improvement or regulation. If this be necessary in case of a street laid down upon the plan, in order to constitute it a highway, it must be at least quite as essential in the case of an alley laid down upon the same plat.

But as the proper public authorities have never yet accepted, nor exercised any authority over any part of this alley, as shown by the plan, and the owners of lots have been allowed to keep it closed west of Campau’s east line, and valuable improvements have been erected upon or over that part of the remainder next east of this line, it would now be too late for the city to acquire any public rights in that part not now open by such acceptance alone. The alley must therefore be considered as permanently closed west of Campau’s east line, and so far east thereof as improvements have been erected upon it. The remainder of the alley thence east to Griswold street is therefore but a cul de sac, furnishing a means of access to the rear of the lots upon each side, and can only be considered as an easement appurtenant to those lots, and in no sense a highway. This point was fully considered and decided in People v. Jackson, 7 Mich. 432; and we have seen no reason to change the views there expressed. And we think it clearly competent for all the parties interested in the adjacent lots to close the alley, or to regulate its use as to them shall seem proper; so far, at least, as res]:>ects its use as a way for passage or travel.

But it appeared that in 1832 there were several buildings on the south side of that part of the alley east of Campau’s line, which were used as dwellings, and that this was used as a way to them; and on this ground it is claimed that this alley had become, thus far, a highway by user. If the owners of these lots chose to construct dwellings fronting on this alley, instead of the street, they had a right to do so; but they had an equal right to remove them; and this they seem to have done many years ago. It is quite evident, we think, that the use of the alley as a way to such buildings depended wholly upon the will of the lot owners; so far, at least, that when the buildings were removed, or ceased to be ■ used as dwellings, any right of way depending upon such use of the buildings would also cease.

But it is claimed by the prosecution that there are other "public purposes to be subserved by the alleys of the city besides that of passage or travel, and that, for such other public purposes, the public interest of the city requires that they should be kept open. This may be true in respect to such of the alleys as have been opened, accepted or adopted by the proper corporate authorities. But no question of this kind arises in the present case, and we give no opinion upon it. If the platting of these alleys by the Governor and Judges is to be treated as a dedication for any other public purpose besides that of ways for passage or travel, an' acceptance or adoption of that dedication was just as essential to give them a public character, for any other purpose, as to give them that character as ways.

The charge of the Court below assumed that the mere platting of this alley by the Governor and Judges constituted it a public way; or, at least, public ground, which the Common Council had a right to control as such: that the lot owners had no right, therefore, by mutual consent, to close, obstruct or incumber it, or to regulate its use by agreement; and that such obstruction or incumbrance was an offense within the' prohibition of the ordinance. The charge in these respects was, we think, clearly erroneous. So far as appears by the case as now presented, no public right has been injured by the obstruction complained of. The only injury shown to arise from the obstruction, if any, is but a private injury to one of the lot owners, for which he can only resort to his appropriate private action.

The judgment of the Recorder’s Court must be reversed, with costs, and the conviction set aside.

Martin Ch. J. and Campbell J. concurred.

Manning J. was absent.


author: Christiancy J.: Campkeul J.:

text:
    Hiram Dodge v. William B. Stanton, Executor of, &c. of Nehemiah P. Stanton.

      Transfer of notes as conditional payment: obligations of the holder. — Where one transfers notes to another, {for property purchased, on an agreement that if the notes “are not collected, the said, [purchaser])is to make up to the said [seller] the deficiency,’*— the purchaser only receives the notes as conditional payment; and if they are not paid at maturity, he is under no obligation to bring suit upon them, but may immediately sue the purchaser for the amount. Per Christianoy J.
    The effect of thus reoeiving notes as conditional payment is simply to postpone the payment of the demand on which they are ^received, until the securities, fall due. Per Christian oy J.

      Costs against estates of deceased persons. — Where an executor resisted a claim' against the testator in the Circuit Court, and after decision by that Court allowing it, removed the case to the Supreme Court, and that Court was of lie opinion that there was no reasonable ground for thus resisting the claimr costs of the Supreme Court were awarded to the claimant.

      Heard May 13th.

      Decided May 24th.

    Case made after judgment, from Jackson Circuit.
    The case was brought into the Circuit Court by appeal from au order of the Probate Court disallowing a claim presented by tbe plaintiff against the estate of said Stanton for the amount of three promissory notes transferred by said Stanton to the claimant, and which the latter had failed to collect. To establish his case in the Circuit Court, the plaintiff offered in evidence a written agreement, signed by himself and said Stanton, dated October 16th, 1846, as follows:
    “Whereas the party of the first part is now foreclosing a certain mortgage on the undivided half of certain village lots in Ford’s addition, known as lots 5, 6, 1 and 8, in Block 28; and whereas the said party of the first part has made an agreement with the party of the second part for bidding off the same at the master’s sale. Now therefore, this instrument witnesseth, that in consideration of the said party of the second part complies with his covenant hereinafter specified, the said party of the first part hereby agrees that, on the sale of said premises by said master as aforesaid, the said party of the second part may hid the same off at six hundred dollars; and if the said party of the second part does hid the same off at that price, he is to allow the said party of ■ the first part four hundred dollars for said hid, and not the full amount of six hundred dollars. If the said party of the second party sees fit to run the same up to a higher sum than six hundred dollars, then he is to add to the said amount of four hundred dollars Ms additional hid over six hundred, as aforesaid. If the said party of the second part does 'not hid over six hundred dollars, and he allows others to hid the same off, then this agreement is of no effect. In ease the said party of the second part bids the same off as aforesaid, then he is to have said master’s deed on said foreclosure, on paying the said party of the second part the sum of four huhdred dollars as aforesaid, or more if the same is run up higher than six hundred dollars. The payments as follows: A certain bond and mortgage executed by Morgan Case, bearing date the eighteenth day of June, 1846, for the sum of two hundred and fifty-three dollars and thirty-four cents, with interest on the same to this date. Also, a certain bond and mortgage executed by Benjamin Whitney, bearing date the I'/th day of July, 1846, for the sum of sixty dollars, with interest to this date. Also, three promissory notes executed by James A. Preston, dated September 11th, 1846, for the sum of twenty-five dollars each, with interest to this date. If the said party of the second part bids a higher sum than six hundred dollars, then he is to pay the same to the said party of the second part in one and two years. It is hereby agreed by said Stanton to bid the same off at the sum of six hundred dollars on said sale as aforesaid. If the foregoing securities are not collected, then the said party of the second part is to make up to the said Dodge the deficiency. The said party of the second part is to have only the interest which the said Dodge secures by said foreclosure.’’
    Plaintiff then proved that, on January 18th, 1853, he recovered judgment on said Preston notes before a justice of the peace, upon which execution was issued January 26th, 1853, and returned nulla bona.
    James B. Wood being sworn for the plaintiff testified that, at the date of contract, Dodge and Stanton came to the office of witness, for the purpose of leaving with witness the notes and other papers set forth in the contract. The conditions upon which they were to be left were stated to witness. Witness suggested a written contract It was assented to. Witness drew it up, and it was signed by them and witnessed. This is the contract in question. Witness held the papers for both parties. In «ase- Stanton did not bid off the property, witness was •¡to return papers to Stanton. Witness attended at the master’s sale. Stanton bid the property in for six hun•dred dollars, and received a master’s deed for the premi*es. Witness proceeded to collect said claims as they became due, except the notes. Witness made ’ inquiries of -Quimby and other persons residing in the vicinity of Preston, and was informed by them that nothing could be collected of Preston on the notes. Witness so informed Stanton several times. Witness finally said to Stanton that he must pay the amount of the notes. Stanton then requested witness to sue the notes in witness’s name, and procure a judgment on- four notes. If collected, witness could pay proceeds of one of the notes to Stanton, after deducting expenses of collecting. If notes were not collected of Preston, he (Stanton) would pay them to Dodge. Witness proceeded as Stanton requested. A summons was issued and served. Preston, before return day, called at witness’ offiee. He said the notes were given for a tax title, and It had proved worthless, and he would not pay them, and did not believe that we (Livermore & Wood) were smart enough, to collect them of him. Witness obtained a judgment, and an execution was issued and returned unsatisfied. Dodge and Stanton after that came to witness’s office together. They came, they said, for the purpose of locking their matters over. Dodge requested Stanton to pay the amount of the three notes. Stanton .said he thought he could collect the judgment of Preston, requested Dodg;e to let him- try, before he (Stanton) paid the amount due to Dodge, and if he did not collect it,' he would pay the amount to witness for Dodge. Witness thinks there was some time specified, but, can not' now state particularly. Dodge assented to the delay, as Stanton requested. Witness gave directions to the justice to allow Stanton to control judgment. Stanton never paid it, to witness’s knowledge. The conversation between Dodge and Stanton, in witness’s office, was some two or three years after the rendition of said judgment against Preston. One of the four notes upon which judgment was rendered belonged to Stanton.
    The defendant then called Preston as a witness, who gave evidence tending to show that, during the years 1847-8-9 and-50, he had property subject to execution from which the amount of the judgment might have been collected. ;
    On this evidence the Circuit Court gave judgment for the plaintiff for $145.28, and an appeal was taken on behalf of the estate.

      Livermore & Wood for plaintiff:
    The Preston notes were not received as absolute payment and satisfaction' of the $400, but as conditional payment. To have them apply as absolute payment it must be made clearly add distinctly to appear that the parties ■so intended : it can not be implied. As conditional payment, they ceased to be payment on not being met at maturity. Dodge was under no obligation to take active measures, [by suit or otherwise, for the collection of the notes, and could therefore lose nothing by negligence if he had been guilty _ of any.

      M. McGee for defendant:
    The clause in the contract, that if the securities are not collected, Stanton is to make up to Dodge the deficiency, is a simple guaranty of the collection of demands which Dodge was to receive in payment.
    But if the demands were received as conditional payment only, then Dodge, by accepting them, accepted also the duty of using due diligence in their collection; and he will he responsible for any loss resulting from his neglect. Preston’s testimony clearly shows that, by diligence, the demand might have been collected. The negligence of Dodge had fully discharged Stanton before the conversation testified to by Wood'; and he could not be again made liable for the demand against Preston without a promise in writing.
   Christiancy J.:

The 'three promissoiy notes of fPreston received by Dodge as part of the sum of four hundred dollars which Stanton was to pay for the mortgaged premises, were not received in absolute payment. The written agreement, in pursuance of which they were received, expressly pro. vides that, “if the foregoing securities’’ [of which the notes were a part] “ are not collected, then the said party of the second part” [said Stanton] “is to make up to the said Dodge the deficiency.”

It is very clear, therefore, that the notes] were received as conditional payment only, to apply in payment, if cok lected, or, in other words, if paid. This had the effect to extend the payment of so much of the four hundred dollars to be paid by Stanton till, the notes respectively became due: but, if not paid at maturity, Dodge was under no obligation to bring suit upon them, but might at once resort to Stanton for the amount of each note not paid when due. If Stanton wished to have suit brought upon the notes or either of them, he might at any time have paid to Dodge the amount of the note or notes dishonored, and obtained the same as his own, and then have taken his own course for their collection.

Stanton had not indorsed ¡.the notes, nor was there any indorser or guarantor to be held liable upon them. The only party hable upon the notes was the maker. His liability was fixed and unconditional; and Dodge had therefore no duties to perform by way of demand and notice to hold him to his liability; Had the notes been indorsed or guarantied (in such a manner as to require demand upon the maker and notice of non-payment), it would have become the duty of Dodge to take all the steps necessary to hold the indorser or guarantor liable; and if he had neglected this, he might have made the paper his own, and thereby released Stanton from his liability to pay the amount.

Such, we think, is the legal effect of the agreement upon which the notes were received by Dodge; and the subsequent acts of the parties after default in payment of the notes, show that it was thus understood by both. The notes, with another which had never been turned out to Dodge, were, at .the instance of Stanton, put in suit, and a single judgment obtained upon all of them in the name of Wood. Stanton, after this, when called on for payment, said he thought he could collect the amount of Preston, and wished to be allowed to try before he should pay Dodge: and if he did not succeed, he would pay the amount: witness thinks there was some time fixed for this purpose, but can not state it. Dodge assented to the delay; and directions . were given to the justice to allow Stanton to control the judgment.

We think that the Circuit Court came to the proper conclusion upon tbe evidence, and tbe judgment must be affirmed. As tbe costs are in the discretion of tbe Court (Comp. L. § 2940), and as we can see no reasonable ground for resisting tbe claim by bringing tbe cause to this Court, plaintiff must recover his costs here.

Campkeul J.:

Whether Stanton’s liability depended on non-payment or failure to collect the notes described in the case, it is, established by the facts; and the judgment obtained on the notes remains unsatisfied after execution duly issued on it: — Thomas v. Dodge, 8 Mich. 51. I therefore concur in affirming the judgment.

Martin Ch. J. also concurred in the result-.

Manning J. was absent when the case was decided.


text:
    John Palmer v. George M. Rich.

      Drainage laws of 1857 and 1859; void proceedings — Proceedings feeing taken under the-act of 1857 “ to provide for the draining of swamps, marshes and other low lands,” (Convp . Z. p. 444) as amended in 1859 (Laws 1859, p. 499), a venire was issued fey the chairman of the drain commissioners without any application being made to the commissioners fey resident freeholders. As the amendatory act plainly requires this, the proceedings were held void.

      Drainage law of 1859; saving clause. — In the act of 1859 the saving of “any engage-' ment, contract or undertaking heretofore entered into fey the commissioners,” does not keep alive any x>roeeedings commenced under the old law, in any incip* ient stage, where no vested rights have accrued.

      Drainage law of 1859; deeds on sales for taxes. — Where lands are sold for taxes, which include taxes assessed under the drainage law of 1859, the deeds given fey the Auditor General are prima facie evidence of regular proceedings in the assessment and subsequent steps to a sale.

      Removing cloud upon title: in/juneiion to stay tax sale. — Where an illegal tax is assessed upon lands, and hy statute the deed given on a sale of the land therefor would ho prima facie evidence of regular proceedings in the assessment and subsequent steps to a sale, such sale would operate to create a cloud upon complainant’s title, notwithstanding the illegality must appear on the face of the 5 proceedings: and ,tho owner may therefore maintain a bill in equity to stay the tax sale.

      Jurisdiction in equity: averm&nt as to amount in controversy. — Bill in equity to restrain a sale of lands for taxes. The bill avered the tax to be “ about one hundred and fifty dollars.” Held a sufficient averment that the tax was more than one hundred dollars.

      Sill to restrain sale for tarns: parties. — To a bill filed against a county treasurer to restrain a sale for taxes assessed ■ under the drainage law of 1859, and to annul the tax, the contractors for making the drains are not necessary parties.
    But the Auditor General is a neoessary party: as in all proceedings to collect the taxes after they are returned to his office, or to sell the lands to enforce them, the county treasurer is only the agent of the Auditor General, and does not act as a mere county officer.

      Practice: leave to amend at the hearing. — An objection for the want of a necessary party in chancery was not made until the hearing. The bill made out a case on all other points, and the Court granted decree for complainant as prayed. On appeal, the Supreme Court, in reversing the decree for want of parties, granted leave to amend, and allowed an injunction which had been decreed to stand until the further order of the Court below, to which the case was remitted.

      Heard April 22d.

      Decided May 10th.

    Appeal in chancery from the Wayne Circuit. The facts are stated in the opinion.

      E. G. Hinsdale, for complainant:
    1. The tax was clearly levied without any authority on the part of the drain commissioners.
    Under the act as amended, in order to give the drain commissioners jurisdiction to take any proceedings in reference to the construction of a drain, it was necessary that an application should be made to them in writing, by ten or more resident freeholders. Laws of 1859, p. 500. The bill shows that no such application was made to the commissioners.
    ' The statute also contemplates the drainage of lands when the public health requires it, and taxation to meet the expense of such drainage.
    The bill shows that in all the proceedings of the drain commissioners, nothing appears to show that in their judgLment or in the judgment of a jury the public health was affected by the swamps to be drained.
    The bill also shows that the ditch was not let upon the day advertised, and that it was let without any public notice of the letting thereof.
    For these and other reasons appearing on the face of the bill, we insist that the tax was levied without any authority, and that it is illegal and void.
    2. The complainant’s proper remedy is by injunction: — 3 Ohio, 86; 16 Ohio, 574; 38 Penn. 312; 10 Wis. 242; 24 Mo. 20; 3 How. 441; 9 Wheat. 738; 18 Md. 284.
    This Court has virtually settled the question, that injunction is the proper remedy, by considering cases certainly not more within the province of a court of equity than this: — Woodbridge v. The City of Detroit, 8 Mich. 279; The Sisters of Charity v. The City of Detroit, 9 Mich. 94; Jackson v. The City of Detroit, 10 Mich. 248; Lefevre v. The City of Detroit, 2 Mich. 586 ; Bagg v. The City of Detroit, 5 Mich. 336.
    3. This drainage tax stands upon the same basis as other taxes, and, if valid, becomes a lien at the same time, November 15th. Laws of 1858, p. 183, § 38.
    Though invalid, it is still a cloud upon the title from that date, and if one sold with warranty, he would be bound to take care of the taxes as an incumbrance: — 6 Ohio Cond. 80; 1 Beasley, 227.
    4. The second ground of demurrer, is, that the bill does not show that the amount of tax is sufficient to give jurisdiction.
    This is not a ground of demurrer. In order to be demurrable for want of jurisdiction as to amount, it must affirmatively appear that the amount is too small: — Gamber v. Holben, 5 Mich. 335.
    But as a matter of fact, the bill does show that the amount of the tax is over $150, and that the value of the land is $800.
    5. The contractors are not necessary parties. They are at most but consequentially interested in the result, and are clearly within the rule that such persons need not be parties: — See Milf. Eq. Pl. 171; Story Eq. Pl. § 140.
    In general, those only are necessary parties against whom there can be a decree, yet there can be no decree against the contractors : — 1 Dan. Ch. Pr. 342; Story Eq. Pl. § 231.

      Pacíais & JBJarbaugh, for defendant:
    1. The proceedings set forth in the bill are sufficient to sustain the tax. They were sufficient under the law of 1857; and having originated under that law, they were saved by section 25 of the amendatory act of 1859, and no petition of freeholders for a venire was necessary.
    2. But if the bill showed the proceedings to be manifestly defective, chancery would have no jurisdiction to interfere. The complainant does not make out a case falling under [any acknowledged head of equitable jurisdiction. If the proceedings of the drain commissioners are illegal and void, as alleged in the bill, the illegality appears on the face of the proceedings, and they can not create a lien upon the premises, or a cloud upon the title: and the remedy of complainant is perfect at law when rights are sought to be enforced under the sale: — 9 Paige, 390; 26 Wend. 132; 9 Paige, 24; 14 N. Y. 534; 18 N. Y. 155; 15 Barb. 384; 4 Barb. 10; 25 Conn. 239; 5 R. I. 473; 6 Gill, 391; 2 Cal. 590; 20 Penn. 227; 24 Mo. 20.
    It is submitted that the Auditor General has no power to give a deed on these sales. This power is omitted in the amendatory law of 1859, and in the absence of power by statute, none exists: — Sibley v. Smith, 2 Mich. 487.
    3. The averment in the bill that the tax is “ about one hundred and fifty dollars,” does not sufficiently show jurisdiction. The averments of the bill, and especially those necessary to give jurisdiction, must be clear, certain and explicit: — Mitf. Pl. 45; 1 Ves. 56; 4 Paige, 365 ;
      Welf. Eq. Pl. 10; Story Eq. Pl. §§ 26, 28, 240, 252, 256.
    4. » The contractors are necessary parties to the bill. They have a specific, direct interest in the tax.
    5. The Auditor General is also a necessary party. The proceedings of sale are conducted by him, and the county treasurer is but his mere agent. So clear is this that if the county treasurer does not, on or before a given day, qualify by giving bonds to the approval of the Auditor General, the Auditor employs some other agent. Comp. L. p. 312, § 96.
   Campbell J.:

Complainant filed his bill to prevent' the sale of certain lands in the township of Romulus, for a ditch assessment. The principal objections are that [the venire was issued without proper authority; that it is defective in substance; that the verdict or finding of the jury is defective; and that the proceedings in letting the contracts are defective for want of legal notices.

The proceedings are alleged to have been had under the law of 1859. (Laws 1859, p. 499). That was the first law providing for a jury. The venire was issued by the chairman of the commissioners, February 25th, 1859. No application was made to the commissioners by resident freeholders, as provided by the act. The act of 1859 plainly requires this. The venire was issued under that law, and would not have been valid under the previous statutes. And the law of 1859, repealing several sections of the previous statute, saves only “any engagement, contract or undertalcing, heretofore entered into by the commissioners ”: p. 504. The new statute does not contemplate any action commenced upder the old law as subject to be kept alive in any incipient stage, where no vested rights have accrued. And it is impossible to regard any rights as having become fixed here, when the very purpose of a jury is to determine the necessity' of having any ditch at all. We can not assume that any steps have 'been, or could have been, lawfully taken in the present case, except under the statute of 1859. If, therefore, the allegations of the bill are to be taken as true — and upon demurrer they must be — the bill makes out a good ground of complaint.

It is suggested, however, that, jf this tax is illegal, the illegality must appear upon its face, and - therefore-a sale under it would not operate to create a cloud upon complainant’s title. It is certainly true that all steps in the assessment of a tax must appear of record. No part of the proceedings can rest in parol, and no presumptions-, can be raised of essential facts not appearing in writing. And if the tax deed is not prima facie evidence of regularity, then the objection may have considerable force. It is necessary, therefore, to examine into the state of the-law on this subject.

The deeds made by the Auditor General, upon ordinary sales for taxes, are prima facie evidence of regular proceedings, in the assessment and subsequent steps to a sale. This tax or' assessment, being exceptional and special, must be brought expressly under some similar provision, or the deed will not raise any such presumptions.

Under the Compiled Laws the sale for drainage assessments was kept entirely separate from all others’. The land could not be bid in for the State.

The purchaser was obliged to pay] all taxes for which the land had been] bid in by the State, and was entitled to redeem from all other tax purchasers. Comp. L. § 1406.

By the law of 1859 these provisions were stricken out, and the section was made to read as follows : — All lands upon which a tax shall be levied by virtue of this act, which may be returned to the office of the Auditor General delinquent for such tax, shall he adver Used and sold for such taxes, at the same time and in the same manner, and subject to like redemption, as lands delinquent for other taxesp. 502. The provisions before referred to had made these tax sales exceptional in certain particulars, and the effect of striking them out, and adding the clause which was before omitted, “ subject to like redemptionf must be, we think, to do away with the former •qualifications, which required the sale to be separate, and imposed conditions on the purchaser. The old law provided when and how a deed for drainage tax sales should be made. The new law makes no separate provision for a deed whatever. But if the sale is not separate, then, being had for all delinquent taxes, it must either entitle the purchaser to a deed which will embrace the drainage tax, or else it will require separate certificates and conveyances, although the sale was single. We can discover no meaning in the amendatory act, unless it is designed to put these taxes in the same condition with all others, requiring but a single sale for all, and making that sale subject to uniform conditions. And if this is its effect, there must be,' we think, a similar uniformity in conveying, and the deed issued by the Auditor General, instead of being evidence of regularity in part, raises the presumption of regularity in favor of all the taxes for which the land was sold. Any other meaning must do- violence to the sense of the statute. And while proceedings to divest private property can not be aided by unauthorized presumptions, we are bound to accept a fair and natural interpretation in preference to one that does violence to the language used. We think the deed for such taxes would be prima facie evidence of regularity, and that it would therefore create a cloud against which equity will grant relief.

It is objected, however, that the bill does not show a case within the jurisdiction, because the tax is not alleged to be above one hundred dollars. The bill alleges it to be “about one hundred and fifty dollars.’’ This is not a very accurate allegation, but it means more than one hum dred dollars. Whether this is one of those cases in which the value of the property imperiled is the test of jurisdiction, it is not therefore important to inquire.

It is also objected that the contractors are not made parties, and that they are directly interested in the fund which is their only resort. The statute provides that no money shall be paid on any warrant drawn by the commissioners, out of any other fund than that derived from said taxes: — Laws 1859, p. 502. The former statute in addition to this prohibited the Auditor General from crediting or paying these taxes to the counties, until actually paid: — Comp. Laws, § 1405 ; while other delinquent taxes are credited when returned, and the Auditor is obliged to refund all delinquent town or county taxes received by him in excess of the state tax. Comp. L. § 856. It may be questioned whether, under the amended law of 1859, the county treasurer is not now entitled to retain in his hands the full amount of these assess-, ments, as he is of all others, before he is called upon to pay over any moneys to the Auditor General. The statutes are not by any means as clear as might be desired on this point. But be this as it may, we think the contractors are not so interested as to make them necessary parties. The fund, as such, does not belong to them. Their warrants are payable out of it. But these warrants' are negotiable, and receiveable on sales for those taxes: — Comp. L. § 1415. And until warrants are issued upon audited claims, the contractors have no rights in the fund. Their whole interest depends on the allowance of their claims by the commissioners: — Comp. L. § 1414. There are other accounts and expenses which are payable in the same way. The funds of the separate drains are not all kept separate, but several may go into one drainage fund; and it would be impracticable, to attempt to trace. out tbe rights of warrant holders in the moneys raised from particular parcels of land. Each town collects the drain taxes assessed on lands within it. Warrants for making one drain may have been paid out of moneys assessed for another. Any attempt to trace out the rights of individual .creditors of the fund would lead to endless confusion. The ca'se is one where the public authorities adequately represent all parties, and we do not think it necessary to introduce others. Cases may possibly arise under some of our statutes, where ¡private rights are so directly involved as to make their holders necessary parties to any litigation touching the fund. The interest here is too indirect to require it.

An additional ground of demurrer was taken ore terms, that the Auditor General is a necessary party to a bill filed to cancel a tax.

This ground is well taken. The taxes remain in his office, and in all proceedings to collect them after they are returned, there, or to sell the lands to enforce them, the county treasurer is the mere agent of the Auditor General, and does not act as a mere county officer. The bill prays, as it should, in such cases, not merely that the tortious act of an illegal sale may be restrained, but also that the tax may be annulled. This relief, if granted, operates directly upon the Auditor’s books and entries, and imposes upon him certain duties concerning the taxes themselves, and the adjustment of accounts upon the basis of their rejection. The bill must be amended in this respect, although -good on its face as to the merits. He should be allowed, therefore, to controvert the facts if he sees fit. Although admitted on demurrer, they may be put in issue by the defendants ’upon the introduction of proper parties. As this objection was not taken before the hearing, and as the bill makes out a case upon all other points, we shall, in reversing the decree below, grant leave to amend, and allow the [injunction to stand until the further order of the Court below, to which the case must be remitted for further proceedings. Defendant is entitled to costs of this-Court. Costs below will abide the event of the suit.

Manning and Christiancy JJ. concurred.

Martin Oh., J.: I concur that' the Auditor General should be a party, if the bill can in any event be sustained.


author: Martin Ch. J.:

text:
    Henry W. Sage v. Edward C. Walker and others.

      Renewal note when a payment. — A. note which two parties had indorsed for a third being over due, the holder wrote the indorsers, requesting that a new note bo sent in renewal. They sent one accordingly, made and indorsed by the same parties, payable at six months, and requested the return of the old note. 2ÑTo notice was taken of this request, nor were any steps taken to fix the liability of the indorsers on the now note; but aftor it fell due, suit was brought on the old note, and the new one was tendered to the parties on the trial, who refused to receive it. It was held, that the plaintiff, by retaining the new note, under the circumstances, had made it his own, and it operated as a payment of the old note.

      Heard April 21st.

      Decided July 15th.

    Error to Wayne Circuit.
    June 1st, 1861, George B. Russell made a note for $548.42, payable on the first of September following, to the order of C. I. & E. C. Walker, at the Michigan Insurance Bank, Detroit, with eight per cent interest. This note was indorsed by the Walkers, to plaintiff, who resides in New York city. May 12, 1862, plaintiff, still holding the note, wrote to E. C. Walker a letter in regard to it, saying, among other things, “Add the interest, and give mé a new note at 3, 4, 5 or 6 months.’’ May 24, 1862, E. C. Walker replied to this letter, enclosing $100 in money, and a new note for $463.23, the balance, dated May 1, 1862, given by Russell and indorsed by the Walkers, payable six months after date at plaintiff’s office in New York; and requesting the return of the old note. The old note was not returned by plaintiff, nor the receipt of Walker’s letter acknowledged; nor were the indorsers notified when the new note fell due and remained unpaid. November 12, 1862, plaintiff wrote the Walkers requesting payment of this second note, or a new note “to keep it alive.’’
    The present suit was brought against the maker and indorsers, to recover the amount of the old note; the plaintiff retaining both that and the new note in his hands until the trial, when he tendered the latter to the defendants, who refused to receive it. Certain questions of evidence were raised on the trial, but they become unimportant in the view of the case taken by the Court. The Circuit Court charged the jury, that the reception of the new note by the plaintiff, enclosed in a letter from defendants, and asking for the return of the old note, made it the duty of the plaintiff, either to return the old note as asked, or to refuse to receive the new note; and that the keeping of the new note under the circumstances was an adojDtion of the contract as understood by defendants, and a discharge of their liability on the old note.
    .The jury returned a verdict for defendants.

      P. G. Holbrook, for plaintiff,
    to the point that this charge was erroneous, cited, 2 Pars. on Cont. 196; Jennison v. Parker, 7 Mich. 355; Hotchin v. Secor, 8 Mich. 494; 2 Cr. & Jerv. 405; 5 Beav. 415; 6 T. R. 52; Byles on Bills, 304 and note, 307.

      Walker db Kent, contra,
    cited, 30 Miss. 688; 40 Me. 457.
   Martin Ch. J.:

The charge of the Court was clearly correct, and settles the whole case, rendering a consideration of the questions of evidence unnecessary.

The effect of taking a second note upon the vitality of “the first is sometimes determinable by the law, and sometimes by the contract under which it was given and received. In the present case the correspondence of the parties, which went to make up the contract, shows that the second note was given and received in discharge “of the first. Walker sent forward that note to be retained Only upon condition of a surrender of the first. Sage was bound to return one or the other. By retaining both, he left it with the defendants to say that he had taken the Hew note upon the conditions Walker required, and the first note must be considered as surrendered up. This appears to have been Sage’s view, when he had by carelessness omitted to have the second note presented and protested; for he asked for a third note in renewal of the second.

'The judgment is affirmed, with costs.

The other Justices concurred.


author: Manning J.:

text:
    Michigan Insurance Company v. Gideon O. Whittemore and others.

      appeal in chancery: reversal of decree for irregularity, — A decree in chancery ■will not he reversed for an error in no wise affecting injuriously the interests of the party appealing.

      Motion to set aside decree. — On a motion to set aside a decree for irregularity the affidavits should show that the party is injured by the irregularity.

      iForeclosure: when reference unnecessary as to defendants defaulted. — Where, in a foreclosure case, the hill is taken as confessed by a part of the defendants, the evidence taken on the issue as to the others is evidence as to those who are defaulted; and a reference to take separate proofs as to them, covering the. same ground, is unnecessary.

      Notice in chancery, 'when not necessary. — Where such a reference was had without necessity, it was held that notice of the reference to the defendants who had appeared waa not requisite. Kellogg v. Putnam, IX Mich. 344.

      Heard July 6th.

      Decided July 15th.

    Appeal in chancery from Wayne Circuit.
    The bill was filed to foreclose a mortgage given by Gideon O. Whittemore to complainants. Charles H, Whittemore was made a defendant, among others, as subsequent purchaser. The bill was taken as confessed by all the defendants except said Charles H. Whittemore, who answered, contesting the validity of the mortgage, and the case as to him was heard on pleadings and proofs. In addition to the amount of the mortgage, complainants claimed to recover certain moneys paid for insurance on the mortgaged property, and proof was taken to show the amount. April‘27, 1863, the Circuit Judge, in the absence of defendant’s counsel, announced his decision in the ease in favor of complainants, and complainants’ solicitor thereupon entered a common order, reciting the pro confesso as to all the defendants except Charles H. Whittemore, and referring the cause to a circuit court commissioner to compute' the amount due. The reference was had the same day; the commissioner took proofs of the insurance moneys paid, and included the same as a part of the sum due. On April 29th, 1863, his report was filed and confirmed, and decree entered. No notice of this order of reference and the proceedings under the same, or of the report and its confirmation, or of the decree, was given to the solicitor for defendant Charles H. Whittemore; and on filing affidavit of that fact, and that said solicitor had no knowledge of these proceedings until June 11th following, a motion was made to set aside the decree for irregularity. The Circuit Court denied the motion, and defendant Charles H. Whittemore appealed.

      •O. I. Walker, A. D. Maynard and M. D. Dr alee, for appellant:
    Under .the statute — Comp. L. § 3500 — and rule 19, defendant was entitled to notice of the order of reference, the hearing before the commissioner, the filing of the report, and of the final decree. This is matter of strict right, and even if it was apparent that it could not, by any possibility, be injurious to us, we should still be entitled to have the decree set aside, and the case opened: Jenny v. O'Flynn, 5 Mich. 215 ; Martin v. McReynolds, 6 Mich. 75; Kellogg v. Putnam, 11 Mich. 344.
    The reference was for something more than mere computation. Proof of the amount of insurance was taken, which defendant had a right to controvert. He was also entitled to rely upon the established usage of the court — ■ that no final decree would be rendered until after a ref•erence to the commissioner for a computation of the amount due, and notice thereof to himself; and he was not bound to anticipate or look for such decree until this had been ■done. Relying on such practice, he was In this case ■deprived of all right of appeal from the original decree.

      S. D. Miller, and G. V. K. Lothrop, for complainant:
    The reference was unnecessary: — 2 Scam. 545; 9 Port. 75; 11 Mich. 344. And want of notice of it could ■constitute no ground of complaint on the part of C. H. Whittemore. But the statute in regard to notice is not to be construed literally. Its purpose is, simply, to prevent undue advantage by ex parte proceedings.
    But whether the Court below erred or not, the question presented involved simply the discretionary power of the Court, and will not be re - examined here: —14 How. 1 ; 2 How. 240; 16 Wend. 369 ; 18 Wend. 350.

       See Kellogg v. Putnam, 11 Mich. 344; Martin v. McReynolds, 6 Mich. 70; Warner v. Whittaker, 6 Mich. 133; Griggs v. Detroit & Milwaukee Railway Co. 10 Mich. 167.

   Manning J.:

No reference was necessary in the case. The Court might have computed the amount due and rendered a final decree without it. The bill had been taken as con-fessed against three of defendants, and on the hearings against the other defendant all of the facts necessary to. a final decree were before the Court, in the pleading» and proofs. The order of reference appears to have been entered under a Supposition that it was necessary to render the proceedings regular against the parties who had not appeared. It is a common order, and recites that the. bill of complaint had been taken as confessed against three of defendants, naming them, and orders a reference to a circuit court commissioner to compute the amount due on the bond and mortgage. Evidence was taken by the commissioner of the amount paid for insurance. But this was unnecessary, a3 there was proof of the same fact before the Court on the hearing. The evidence taken in-the cause before the hearing was evidence against all of the defendants — against those who had not appeared as well as against the defendant who had. If we are correct in these views, then the reference was not one requiring notice to the opposite party, and there was no irregularity in the complainants’ proceedings. See Kellogg v. Putnam, 11 Mich. 344.

Admitting irregularity, it is not stated in the affidavits, on which the motion to set aside the decree was made, that defendant has been injured thereby; and we have held that we would not ¡reverse an' o'rder or decree for a mere irregularity in no wise affecting injuriously the interest of the party.

The order appealed from is affirmed, with costs.

Martin Ch. J. and Christianct J. concurred.

Campbell J. did not sit in this case.