author: Whipple, C. J.

text:
    Bowen and McNamee v. Mead and Mead.
    One Cram was indebted to the plaintiffs, wbo instructed their agent to call on him for payment or security. The plaintiffs’ agent called on Cram, and he not having the money to pay the plaintiffs, made a joint and several promissory note for $408, payable forty days after date, to the plaintiffs or bearer, signed his own name thereto, and the copartnership names of W. W. Cram & Co. and Wilaox & Co., of which firms he was a member, and he and the plaintiffs’ agent then went to the defendants, S. P. and W. W. Mead <fc Co., who signed the name of their firm to the note' at the request of Cram, when the note was delivered hy Cram to the plaintiffs’ agent. Neither S. P. and W. W. Mead & Co. nor the plaintiffs’ agent were informed or knew that Cram had signed the names of W. W. Cram & Co. and Wilcox & Co., without authority from his copartners, which was the fact. Held, the defendants were liable to plaintiffs on their ■ promise.
    Case reserved, from Wayne Circuit Court. One Jessee Cram was indebted to plaintiffs, who sent their clerk to Cram’s store to collect or secure the debt. The clerk called at Cram’s place of business, and urged him for payment or security. Cram could not pay, but offered to give his note with sureties for the amount, payable in forty days, which the plaintiffs’ clerk agreed to accept. Cram stepped out and wrote a joint and several note, payable to the plaintiffs or bearer, in forty days, for $408, the amount due to them, signed Ms own name to it and the copartnership names of W. W. Cram & Co. and Wilcox & Go.,
      and with it so signed, he an:l the plaintiffs’ clerk went to the place of business of the defendants, S. P. <& W. W. Mead & Co., who, at the request of Cram, signed the name of their firm, when the note was delivered by Cram to the plaintiffs’ clerk. Cram was a partner of the firms of*W. W. Cram & Co. and Wilcox & Co., and signed their names to the note without authority from his copartners; but of this neither S. P. & W. W. Mead & Co. nor the plaintiffs’ clerk had any notice at the time the note was signed by S. P. & W. W. Mead & Co., and delivered by Cram to the plaintiffs’ agent.

      Loihrop and JDuffield, for the plaintiffs.

      Joy and Porter, for the defendants.
   By the court,

Whipple, C. J.

Before proceeding to consider the objections urged by the defendants against the right of the plaintiffs to recover, it may be well to state the legal relations existing between tlio plaintiffs and defendants, the defendants and Cram, and the defendants and the other parties whose names appear upon the note, at the time the same was delivered to the plaintiffs. In respect to the payees (tho plaintiffs), the law regards the defendants as occupying the relation of joint and several promissors; as between the defendants and Cram, the former stood in the light of sureties of the latter; and the legal relation of .Cram & Co., Wilcox & Co., and Mead & Co. to each other, was that of co-sureties of Cram, for whose individual debt the note was given. ' ■

The plaintiffs, then, might, under the facts in the case, well consider all and each of the parties who signed the note as mere sureties, as bound to them in the same manner and to the same extent as Cram, the principal debtor. Their undertaking upon the face of the note was not collateral, but absolute — it was an unconditional promise to pay the note according to its tenor..

The legal rights of tho parties would not be changed, if, instead of executing one note, the makers had executed four several notes, each binding himself to pay to the plaintiffs the sum specified in the note upon which this suit is brought. The right of the plaintiffs to sue one or all of the parties upon their several liabilities, would not have been more complete than is their right to sue each separately upon the note in question. If several judgments were recovered, the satisfaction of one would operate as a satisfaction of all; and there would spring up new rights, as between the surety who satisfied the judgment and his principal, and between such surety and his co-sureties. The obligation on the part of the principal would be to'indemnify the surety to’the full extent of the loss he may have sustained; and the obligation on the part of the co-sureties would be to contribute their just proportion towards making up such loss.

These general remarks would equally apply, had the sureties of Cram thought proper, when they executed the note, to have severally added to their signatures the word “ surety.” _ While such addition would have indicated on the face of the note that they stood in the relation of sureties to Cram, it would not have changed the legal nature of their. ‘ liability to the jrayees — the law would still consider them each as principals. Having placed themselves in the situation of principals, by expressly declaring upon their contract that they bind themselves as such, they must necessarily be held to the character they have thus voluntrily assumed. That character they have no right to disclaim, and there is no.hardship in holding them to it.

But the principal ground of defense, is, that the plaintiffs are seeking to enforce an obligation the defendants never entered into: that at the time they executed the note, they supposed that the responsibility they were incurring would be shared by others. But the nature and extent of the defendants’ liability must be determined by what appears on tho face of the note, and not by any erroneous opinion they may have formed at the time of its execution. Does the circumstance, then, that Cram & Co. and Wilcox & Co. have successfully resisted the enforcement of the contract as against them, release the defendants from its obligation ? I am unable to perceive how such a conclusion can result from such premises. That the defendants may not be able to enforce contributions as against persons who with them stood in the relation of sureties for Cram, is no reason for annulling the contract into which they entered with the plaintiffs.

The right of the plaintiffs to recover upon their express promise, ■ is not dependent upon the right of the defendants to recover against their co-sureties upon the implied promise, that they would share equally any loss that might accrue in consequence of their joint and several undertaking as sureties of Cram. If the converse of this proposition were true, it would convert a liability, which by the terms of the contract is absolute, into a contingent or conditional liability. That the liability of the defendants was absolute, I have already shown: they promised to pay to the plaintiff’s $408, forty days after the date of the note — not that they would pay that sum in the event that Cram & Co. and Wilcox & Co. were also liable. The written agreement imports no such conditional promise; and the law annexes no such condition under the facts disclosed in this case.

It is further insisted, that the agent of the plaintiffs took the note, chargeable with notice, that a fraud had been practiced upon the defendants. If the facts warranted the presumption that the plaintiffs were seeking to reap the fruits of their own dishonesty, through the aid of this court, the case ivould be a clear one for the defendants. But I am unable to discover any ground upon which such a charge can rest. The agent of the plaintiffs knew that the note was given for the individual debt of Cram; it is also quite probable that he discovered, when the note was delivered to him, that the names of the two firms of Cram and Co. and Wilcox and Co. had been placed there by Jesse Cram.

What passed between Cram and Mead and Co., when the -latter were solicited to execute the note, does not appear. Enough, however, appears on the face of the instrument to have admonished Mead and. Co. that the note was probably given for the individual debt of Jesse Cram. If not, why should his signature appear, binding himself individually, and as a member of both firms ?

If the note had been given for a debt of-either firm, Jesse Cram would have been as effectually bound, by adding the signatures of these firms, as by affixing his own signature. Again: when the note was presented to Mead and Co. for their signature, the names of the other makers were affixed to it; and they had the same opportunity of knowing that each of those signatures were in the hand writing of Jesso Cram, as had the agent of the plaintiffs. The means of information upon both the facts just adverted to, were as accessible to Mead and Co. as to the plaintiffs. The former were as much interested to inquire into the authority of Crm to execute the note in'the name of the firms of which he was a member, as were the plaintiffs. If the authority did not exist, then Mead and Co. could not, as against these firms, enforce contribution; and the plaintiffs, for a like reason, would lose the benefit of the security which they supposed they had obtained.

This circumstance would, in the absence of other proof to the contrary, repel the presumption that any fraud was meditated by the plaintiffs. They are no more responsible to Mead and Co, for any excess of authority on the part of Jesse Cram, than they would he for the solvency of their co-sureties, had there been no excess of authority, and their liability to contribute had been established by a judgment at law.

It was the duty of Mead and Co., before giving credit and character to a note which was to pass into the hands of a third party, ’to ascertain, if they desired so to do, whether Jesse Cram had exceeded his powers as a member of the firms of Cram and Co. and Wilcox and Co. Not having done so, they cannot now, in law or justice, he permitted to shield themselves from a res]3onsibihty voluntarily incurred, by insisting that a fact, of which they had no knowledge, should have been communicated by the plaintiffs, who, for aught that appears, never saw the note until its execution by the defendants. The wrong, whether intentional or not, growing out of the illegal act of Jesse Cram, ought not to be visited upon the plaintiffs, to whom no fraud or other misconduct in the transaction can be fairly imputed.

We have been referred to Leaf et al. v. Gibbs, 19 Eng. C. L. Rep. 475, as an authority to show, that, under the facts in this case, the plaintiffs are not entitled to recover. I have examined that case, and am unable to trace any analogy between it and the one before us. It is there held, that if a person signs a promissory note, on a representation that others are to join, and one afterwards refuses to sign, the payees cannot recover in an action on the note against the person who signed it, unless such person, knowing the facts, and being aware of his rights, had consented to waive his objections.

The distinction between the' two -cases may be gathered from the charge of Ch. Justice Tindal to the jury. He said, that “ from the evidence of the plaintiffs’ witnesses, that the defendant was told that his mother was to join, and therefore the obtaining of her signature was a condition, which, if not carried into execution, would justify the defendant in withdrawing.” Until the signature of the mother was obtained to the note, there was in law no delivery, and the attempt to enforc* its payment was a fraud upon the defendant, who was told that his responsibility was to be shared by another.

In the ease of Duncan v. The United States, 1 Peters 435, the fact was, that a bond was drawn in the names of Abner L. Duncan, John Carson, and Thomas Duncan, as sureties for William Carson, but Thomas Duncan never signed it.

In behalf of the plaintiff in error it was contended, that the body of the bond proved that Thomas Duncan was, by the contract, to share its responsibility with Abner Duncan, and without the signature of Thomas Duncan it was never delivered, but remained an escrow.^-To support this proposition, reference was had to the following cases: Wells v. Dill, 1 Martin’s R. 592, and to Leaf v. Gibbs, 19 Eng. C. L. Rep. 475.

The Supreme Court of the U. S. sustain the opinion of the Supreme Court of Louisiana in the case of Wells v. Dill, in which it is said that as -the bond upon which suit was . brought, was drawn in the name of one Blanchard as principal, and the defendant, Dill, and one Walter Turnbull, as sureties, and the signatures of Blanchard and Dill only are affixed, that Dill’s signature to the obligation did not bind him.

But it is to be remarked, that this ruling was in conformity to the civil law, which declares the contract incomplete until all the parties contemplated to join in its execution, affix their names to the bond.

" The law (say the Supreme Court of Louisiana) presumes that the party signing did so upon the condition that the obligors named in the instrument should sign it.” Mi-. Justice McLean adds, in reference to this decision, that u There can be no doubt, that under the civil' law, the principle is correctly stated by the court”

The doctrine of the common law is said by the same judge to be too well settled to be controverted: that where an instrument is delivered as an escrow, or where .one surety has signed it on condition that it shall be signed by another before its delivery, no obligation is incurred . until the condition shall happen. The acknowledgment (continues Justice McLean) of the bond by Abner L. Duncan,, and afterwards by John Careon, unconditionally, and its delivery to the government, would seem to rebut the inference drawn by the plaintiffs against its validity, from the simple fact of its not having been signed by Thomas Duncan. This case, then, instead of supporting the views of the defendants, is an authority against them.

In support of the views we have expressed, reference may be had to the case of Stewart v. Bochm, adm. of Jacob Swan, 2 Watts’ R. 356. The action was upon a joint and several note, under seal, signed by Ringle and Dasher, who were principals, and Jacob Swan, who was a surety. As a defence, it was insisted by the administrators of Swan, that as Dasher signed and sealed the note in the name of the firm of Ringle and Dasher, without authority, that Ringle ivas not bound as it was the intention of the parties he should be, and that, therefore, a recovery could not be had against the surety. In answer to this defence, the court say, “ where the obligee has acted with good faith, what has ho to do with the mistakes or misconceptions of the obligor ?” In the case of Cutter v. Whittemore, 10 Mass. 450, it was held that a bond written as if to be executed by three, as joint and several obligors, although executed by two, is nevertheless a valid bond. See, also, Adams v. Bean, 12 Mass. 140.

Upon the whole, I am of the opinion, that upon the facts of this case the plaintiffs are entitled to judgment, and it must be so certified.

Certified accordingly.


source: Caselaw Access Project

author: Wing, J.

license: Public Domain

text:
    Agent of State Prison v. Lathrop.
    The statute, Sees. L. 1842, p. 180, requires tlie agent of the state prison to give notice, in a newspaper, for sealed proposals for letting the convicts. The agent of the prison, without giving such notice, hired convicts to defendant for a term of years. The contract was held to be void — the mode of letting prescribed by the statute being a limitation on the power itself, and not merely directory to the agent of the prison.
    Under the general issue in covenant, the defendant may show the deed is not hi» by proving a lack of power in the agent who executed it on his behalf.
    Error to Jackson Circuit Court. Henry B. Lathrop brought an action of covenant, in the circuit court, against the agent of the state prison, for a breach of articles of agreement; by which the agent of tho the prison had let to him the, services of a number of convicts for a term of year*, and recovered a judgment for $5,7-35 (53. The convicts were let by the agent of the prison, under an act entitled “ An act authorizing the agent of the state prison to lease, for a term of years, the labor of convicts in the state prison.” Sess. L. 1842, p. 130. The first two sections of the act are as follows:
    “ Sec. 1. That it shall be the duty of the agent of the state prison, and he is hereby authorized to employ the convicts confined in said prison at mechanics’ labor, or so many of them as, in the opinion of the agent, will best promote the interest of the state, for a term of years, not exceeding five years.
    “ Sec. 2. That it shall be the duty of the agent to give at least twenty days’ notice, in some newspaper printed in the village of Jackson, or city of Detroit, for sealed proposals for letting the convicts for said labor of all or any of those branches now carried on or may hereafter be carried on in said prison: that the notice shall specify the branch or branches, and the length of time for which each branch will be let.”
    On the trial, a number of exceptions were taken by defendant to the ruling of the court, and among others the following: The execution of the agreement having been admitted by defendant, theplaintiff offered it in evidence. Defendant objected to its reception as evidence, until the plaintiff should show the agent of the prison had given notice of the letting of the convicts, as required by the second section of the aforesaid act. The objection was overruled by.the court, and defendant excepted. After plaintiff had closed his testimony, defendant called the clerk of the prison, who was sworn, and testified that he had been clerk of the prison for seven years last past. Defendant then offered to prove hy the witness, that no notice of the letting of the con-' victs had' been given by the agent of the prison, previous to the making of the contract with the plaintiff, and that no sealed proposals were made by plaintiff. This evidence was objected to by plaintiff and the objection sustained by the court, and defendant excepted. Other exceptions were taken in the course of the trial, but it is unnecessary to state them.

      Zothrop, attorney general, for the plaintiff in error.

      J. M. Howard, for the defendant, in error.
   By the court,

Wing, J.

The counsel for the defendant in error insists that the second section of the act was simply directory, and whether the agent did or did not comply with its provisions, the rights of the defendant were in no wise affected thereby.

The first section of the act does not in terms authorize the agent of the prison to let the services of the prisoners. No one, in reading this section, would be likely to maintain that anything was intended by it, further than the employment of the prisoners by the agent, in the prison. It is only by reading the second section that we are informed that the convicts are to be let Whatever may have been the general powers of the agent conferred by other laws, in reference to the objects indicated by this law, his duties are defined. It is manifest, from an inspection of the different sections, that the legislature supposed it would be more beneficial to the state to let the services of the prisoners, than to. supply materials, from the manufacture of which a profit might be made, that would contribute to defray the expenses of the prison.'

With a view to insure competition, and to give to every one an opportunity of bidding for the labor, the power to let the services of the Convicts is coupled with a requirement that the agent should give notice to the public, in a specified mode, and for a specified time, for sealed proposals. The object of this is clearly manifest. It was intended, if possible, to prevent collusion between the agent and contractors, and to secure to the state the highest price that could be obtained for the labor of the convicts.

It was foreseen that it was possible, and even probable, that the agent, in common with many public agents, might from corrupt motives sacrifice the interest of the state to secure to himself or his friend the benefits which it was desirable the state should derive from the services of the convicts. The legislature, therefore, wisely prescribed the mode in which the agency was to be executed: and if it was not intended this mode should be pursued, why was it prescribed in the law and connected with the acts authorized to be done ? There are no general terms used in the law which denote an intention to clothe the agent with discretionary powers as to the mode of letting contracts. He is simply authorized to do certain things in a certain way, and all this is set forth in a public law, which all may read and which all are bound to notice, and particularly all who may attempt to execute any power under, or derive any benefit from, its provisions. Jt distinctly points out the extent of the power given, and the mode of its exercise, and says to agent and contractor, this is the way, walk ye in it. I therefore think that that part of the second section which is claimed to be directory, enters into and gives effect to the power itself, and is a limitation apon it, and that any attempt to bind the state without observing all the prescribed proceedings, must be abortive.'

This view of the subject would seem to render it unnecessary to examine the authorities cited by the counsel of defendant. But I shall refer to them with a view to show that they cannot apply to this case, even upon the grounds assumed by him.

In the case of The People v. Allen, 6 Wendell 486, a court martial was ordered on a day after the time prescribed by the law, fines were imposed, collected and paid over to the sheriff, and an action was brought to recover the money. It was objected, that the court martial was not legally convened. The court, in deciding the case, say, that ££ when a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be regarded as directory merely, unless the nature of the act to be performed or the language used show that the designation of time was considered as a limitation of the power of the officer;” and the judge proceeds, “ there is nothing in the nature of the power given, or in the manner of giving it, that justifies the inference that time was mentioned as a limitation.”

In the case of Jackson v. Young, 5 Cowen 269, it was held, that the sheriff’s omission to file a certificate of sale according to the statute, would not prejudice the purchaser — the act was not a condition precedent, hut merely directory.

In the case of Jackson v. Bartlett, 8 John. R. 361, it was held, in an action of ejectment against a purchaser of land at a sheriff’s sale, that the regularity of the execution could not' be questioned. The court say, if an execution is issued after a year and a day, without revival of the judgment by a scire facias, it is only voidable at the instance of the party against whom it issued. A purchaser cannot he affected by any matter subsequent to the sale, arising between the parties to a judgment to whichhe is a stranger.

And in the case of Jackson v. Rosevelt, 13 John. R. 97, it was held, that a sale under execution to a bona fide purchaser, could not be defeated for irregularity in the judgment or execution, on the ground that no levy was made, until after the return day.

It will be seen, I think, that these cases can have no application to the case before us. The first two refer to mere questions of time, in which the rights of individuals could not be affected by the observance or non-observance of the directions contained in the law. And the last two cases proceed upon the ground that the bona fide purchaser is not supposed to know, and is not required to ascertain, whether proceedings in a court were strictly regular, or whether the officer selling had done his whole duty, if the court had jurisdiction, and the officer had an execution authorizing his making the sale.

There is, however, a class of cases which exhibit the correct application of principles bearing upon this case, and which I will now proceed to notice and state.

In the case of Denning v. Smith, 3 John. Ch. R. 332, it appeared that under a law of New York, commission ers in the county of Green were authorized to- loan money upon mortgages, and on failure of the mortgagor to pay according to the terms of the mortgage, the mortgaged promises vested in the state, but the commissioners were bound to advertise a sale of the mortgaged premises in three public places, and out of the proceeds of the sale the state was to be paid, and if any balance remained the mortgagor was to have it. In this case the mortgage was not paid, and the commissioners did not comply with the law in advertising. The sale was secret and clandestine. The chancellor, in deciding the case, said: “ The act required the notices to bo put up in three of the most public places in the county. The object, doubtless, was, to diffuse as widely as possible the knowledge of the sale, and of the cause, and the subject of it. This step was absolutely requisite in order to do justice to the parties concerned in the laud, and in the moneys to arise from it.” “ Sales of real estate by public officers, of one description or another, have become so frequent, and have excited such cupidity, &c., that there is very great danger of injustice, unless we support strictly the checks and guards provided by law against abuse.” Apply this reasoning to this case, and it is equalty applicable and forcible. The chancellor proceeds, “ The commissioners were bound to use diligence and judgment in selecting the public places best calculated to bring notice of the sale home to the mortgagee, and to all who were most likely to enter into competition for the purchase.” The chancellor, referring to a class of cases similar to those cited by the defendant in this case, remarks, “ It was not a sale under a judgment or a decree, where the purchaser has them'ght to presume every thing to have been legally done. Here was a special trust to be executed by the commissioners of loans, for the benefit of the state, and of the party entitled to the surplus, and all their authority to sell was under the statute, prescribing the mode. If the sale by the commissioner would he valid upon, a short or defective notice, it would be valid without any "notice, and this, surely, cannot bo maintained. A special authority must be strictly pursued, and every purchaser is to he presumed to know that special authority in this case, for it is contained in the act, and if he purchases in a ease in which that special authority was not pursued, he purchases at his peril.” The sale was adjudged void. See Nixon v. Hyserott, 5 John. R. 57.

These same principles are sustained in the case of Sandford v. Handy, 23 Wendell 260. In this case, Judge Nelson says, in commenting upon the ease in 5 Johnson, “There the power was necessarily in wriíiijg, .and subject to the inspection of the party: this he is presumed to have known, and no good reason exists for binding the principal beyond the scope of it. If the party neglects to call for the power and judge for himself, it is his own fault.” On page 268, he remarks: “ The whole current of authority shows that unless the manner of doing the particular act is prescribed, even a special agent will be deemed ■clothed with the necessary and ordinary means of accomplishing- it.”

Judge Cowen says, in the case of the North River Bank v. Aymar, 3 Hill 270, Whenever the very act of the agent is authorized by tho very terms of the power; that is, whenever, by comparing the act done by the agent with the words of the power-, the act is itself warranted by the terms used, such act is binding on tire .constituent as to all persons dealing in good faith with the agent — such persons are not bound to inquire into facts aliunde.”

In the case of The Newburgh Turnpike Company v. Miller, 5 John. Ch. R. 101, the chancellor, in commenting upon the distinction between words in a law which are imperative, and those which are directoj-y, says, .at page 113, “ The principle to be deduced from the cases, is, that whenever the act to be done under a statute is to be done by a ' public officer, and concerns the public interest, or the rights of third persons, which require the performance of the act, then it becomes the duty of the officer to do it.” See, also, the case of Malcom v. Rogers, 5 Cowen 193, in which the court recognize the rule laid down by Chancellor Kent in the case last cited. Also, State of Illinois v. Delafield, 8 Paige 529, where the Chancellor maintains the rule stated above, that the contractor with an agent appointed by or under a law, must see to it that the agent strictly pursues his powers, and that all ava bound to notice the law.

The statute was intended for the benefit of the state as well as those who may contract with it, through the agent; and it must be so construed as to guard the rights of the state equally with those of the contractor. Indeed, it appears to me hardly to admit of interpretation. Its language and the intent are so plain, and the duties- of agent and contractor are so obvious, and a compliance with the duties set forth so necessary to carry into effect the object of the law, that I do not feel warranted in citing more cases.

There can be no ground for the presunqfiion insisted upon by the defendant. I regard the plaintiff as the special agent of the state: the statute makes him so for a particular purpose only, and he is limited, to the performance1 of his duty in a partieular way. The limitation is known to the person with whom he deals: it is embraced in the law conferring the power, and if the instructions were disregarded, the principal was not bound by his act. It would have been otherwise if the limitation had been private. In that case the agent might have accomplished the object in violation of his instructions,

But there is another objection to the ground taken by the defendant’s counsel, which grows out of the duties which were incumbent on him at the time he entered into the contract. He was to be an actor, and was required to perform an act necessary to the validity of his contract. He was bound to hand in to the agent sealed proposals. It is not shown that he did so, and the offer was to prove that he never did submit any sealed proposals to the agent. He cannot ask that the presumption of which he asks the benefit can apply to his own duties.

The action is, in effect, against the state. The agent has not, or is not presumed to have, any personal interest in it, and his acts- can only bind the state if done pursuant to the law. His power only arises from the performance of the acts required to be done. If he has failed in his duty to the state, the plaintiff is 'not bound.

We have thus far been endeavouring to show that the validity of the contract depended Upon a strict compliance on the part of the agent and the contractor with the requirements of the statute; and I have stated my opinion that, to entitle the defendant to recover, he ■ must show the power of the agent to bind the state, and this must be done by proving his strict performance of his duty. This was incumbent upon him at the trial; and even if he had shown a prima facie case, it was competent to the plaintiff to have shown negatively by proof that the agent and contractor neglected their duty, with a view to meet such prima facie case.

Rut the question is made, whether this proof was necessary on the part of the plaintiff below, or permissible to the defendant below, under the issue formed. I think it was. The issue is non est factum, as in the cáse in 28 Wendell cited above, under which it may be contested •whether the deed is the plaintiff’s deed; and that it is not, may be Shown by proving a lack of power in the agent thus to bind the state or himself as agent, and thus show it is not the plaintiff’s deed.

It is but an act of justice to the judge who tried this cause at circuit to say, that the point upon which this decision is based, was raised after the tdal had progressed many days, and after it had become apparent i¿he tease would be carried to this court; and therefore the decision made by the judge upon this point was so made with a view to have all the poiuts j® the .case, which could be raised, decided in this cpurt..

.Judgment reversed.


author: Miles, J.

text:
    Williams v. Hubbard et al.
    The return of an execution on the return day is a good return for the purposes of ¡a judgment creditor’s bill under the statute.
    Where the officer returned, to an execution against two defendants, that they had no goods or chattels, lands or tenements, without in terms negativing the fact that either of them had, the return was held sufficient.
    On a judgment creditor’s bill, the regularity of the judgment and execution cannot be inquiredlato»
    Where the test day of an execution, and the day a levy was made, are stated in the bill, but not the return day of the execution, the court will take judicial notice of the terms of the court out of which the execution issued, for the purpose of ascertaining whether the levy was made in the life-time of the execution.
    Wber.o one of several judgment debtors is wholly irresponsible and destitute of property, he need not be made apartyto a judgment creditor’s bill.
    What is a auffieient allegation that E. P. H. was the assignee in bankruptcy of W.
    Appeal from the Court of Chancery. A bill was filed by Williams against Hubbard, Barton and Mooney, for the purpose of reaching equitable assets belonging to Hubbard, the judgment debtor, and to set aside a conveyance of real estate, made by Hubbard to Mooney, to defraud creditors. The hill stated the obtaining-of a judgment by Williams against Hubbard and one Cooper, who was not a party to the bill, in the Oakland Circuit Court, on the 30th March, 1841; the issuing of an alias fi. fa. on 21st December, 1844 (a fi. fa. having been previously issued), returnable the second Tuesday of 'June thereafter, and that the sheriff, on the tenth of June, returned he had made diligent search within his bailiwick for goods and chattels, lands and tenements of Hubbard and Cooper, and could find none whereon to levy the execution, and therefore returned it unsatisfied: that on the 18th February, 1846, a pluries fi. fa. was issued, and that on the 20th day of the same month, for want of goods and chattels, the sheriff levied on certain real estate as Hubbard’s, which the bill charged had been conveyed by Hubbard to Mooney, and subsequently, at Hubbard’s request, by Mooney to Barton, in fraud of Hubbard’s creditors: that Cooper, the co-judgment debtor, was wholly irresponsible and destitute of property, real or personal: that on 21st March, 1843, Williams was declared at bankrupt, by the district court of the United States for the district of Michigan, and that, by virtue thereof, -all the property, effects, and rights of property of Williams became divested out of him and vested in Euvotas P. Hastings, the official or general assignee in bankruptcy, appointed and designated, under the act of congress, by the said district court; and that Hastings, on the 12th June, 1843, for a valuable consideration, assigned and transferred unto Williams the aforesaid judgment. The bill also contained all the usual allegations of a credit- or’s bill under the statute. Hubbard and Barton demurred, and, the court below having overruled the demurrer and entered a decree in favor of Williams, they appealed to this court.

      Bichardson and Stelle, for the aj>pellee.

      Goodrich, for the appellants.
   By the court,

Miles, J.

The cause of demurrer, which I shall first notice, is that the alias fi. fa. was returned on the return day, which, 'it is insisted, is a day too soon, as a levy might be made on that day.

By the terms of the writ, the sheriff is required to return it upon the return day; and although he may keep it in his hands until the last moment of that day, for the purpose of making search'for property upon which to levy, yet he is required to return it upon that day; and if we give the officer full credit for a faithful performance of his duty under the law, we may well presume the writ to have been returned on the last moment of .that day.

I have been unable to find any case holding the doctrine that, for the purpose of a creditor’s bill, the execution-was not well returned upon the return day.

2. It is also objected, that the return upon the alias execution is insufficient, being in general terms that the defendants (Hubbard and Cooper) have no goods or chattels, lands or tenements, &o., without in terms negativing the fact that either of them had any separate property.

The return is as broad as the command in the writ, and when there is more than one defendant, the form of execution now in use has ever been held sufficient to include not only the joint property of all, but the several property of each, unless some one of them has not been served with process, in which case an endorsement upon the back of the execution to that effect is requisite: the legal meaning of the return, is, that neither the defendants jointly or separately have any property of which the sheriff could levy the debt. 7 Paige 56.

3. It is also urged, that it does not appear upon the face of the hill that the first execution was regularly issued and returned, and that unless this is shown to have been done, the issuing of the second execution was unauthorized and void.

It seems to me, that a rule requiring an exhibition of the regularity of all the proceedings upon the judgment in the law court, would lead to needless prolixity in creditors’ bills, and be productive of no good results. All that is required in this respect to give the court jurisdiction, is, that the complainant should show that he has had execution upon his judgment in the hands of the proper officer, and that he has been unable to find any property liable to execution upon which he could levy.

The court of chancery is not authorized to decide up>on the regularity of the judgment and execution in the court of law. 8 Paige 373. This is stated to be an alias execution — that pre-supposes a first execution, and the bill states that one was issued, and that is enough.

4. It is also objected, that it does not appear that the levy was made in the life-time of the pluries execution — that the return day is not stated.

The test of this writ is alleged to have been on the 18 th day of February, 1846, and that the levy was made on the 20th day of the same month. The court will take judicial notice of the terms of the circuit court, and as the ..writ was, by the statute then existing, to be made returnable at the next term after it was issued, the levy is thereby shown to have been while the fi.fa. was in life.

5. The next ground of demurrer is, that the judgment debtor, Cooper, is a necessary party.

This point was much pressed on the argument. I have examined all the cases bearing upon it, and propose to consider it fully, but as the subject requires in its discussion a close obedience to authority, no more must be expected than a careful consideration of the cases referred to, in the hope to get a correct view of] the principles which govern this portion of what is termed by Judge Story, “-that most intricate and important branch of equity pleadings, the subject of the necessary and proper parties to bills.” Preface to Story’s Eq. PI., p. 7.

The general rule undoubtedly is, as stated by Lord Hardwick, in Madox v. Jackson, that where a debt is joint and several, the plaintiff must bring each of the debtors before the court, becarise they are entitled to the assistance of each other in taking the account, and aro entitled to contribution where one pays more' than his share of the debt. 3 Atk. 406. Angerstein v. Clark, was decided upon the same principle. 2 Dickins 738.

In the case of Cockburn v. Thompson, 16 Ves. 327, the strict rule is-stated to be, that all persons materially interested in the subject of the' suit ought to be made parties, that there may be a complete decree between all parties having material interests; but that this is a general rule, established for the convenient administration of justice, and must not be adhered to in all cases,-, atad that there are several well known cases of exception.

Among the various cases admitting the general principle, hut forming an exception upon circumstances, is that of Madox v. Jackson, befove'referred to, decided in 1746. There there were three obligors in a bond; the obligee brought the principal and the representatives of one of the sureties before the court, and stated that the third was dead and his estate insolvent. It was held, that under the circumstances of the case he was not a necessary party: that this was an exception out of the case requiring a contribution, as' there were no- personal assets, therefore the representative of the deceased obligor was an unnecessary party.

Angerstein v. Clark, was decided in 1790.’ The chancellor recognized the case of Madox v. Jackson, and held, that to a bill against an obligor in a joint and several bond, an insolvent co-obligor need not bo made a party.

In Bland v. Winter, 1 Sim. & Stu. 247, the general rule was recognized, that to a bill filed by an obligee of a joint and several bond for the payment of his debt, all the obligors must be made parties. In that case no reason was shown for making it an exception.

It should he observed, that in deciding the case of Angerstein v. Clark, Lord Thurlow bad occasion to consider not only the case of Maddox v. Jackson, but also another case, Collins v. Griffith, 2 P. Wms. 314, decided by Lord King in 1725, upon reasoning which, says JacJge Story, it seems difficult to answer. Story’s Eq. PI. 159, note. The ground upon which the decision in the latter case seems to have been placed, is, that the obligee, may in equity, as at law, sue the bond severally : that the creditor lends his money -upon the terms of having security which he might thus sue if he thoughtfit; and if it were otherwise, what was intended to strengthen the security would tend to weaken it, as he might not be able to find all the debtors, and if some were dead their heirs as well as executors are to be made parties, and the suit would be subject to continual abatements. He held (as a natural result from this doctrine), that if any obligor had paid all or a part, he who is sued must bring a bill and have it allowed, and that it must lie with him to enforce contribution to the payment of the debt. The same was held in Stanley v. Stock, by the same chancellor, in 1730. Moseley’s R. 383. This doctrine, however, has been overruled in the cases to which I have referred, and the general rule is established in England as I have before stated it.

In the case of Van Cleef v. Sickles, in New York, Chancellor Walworth ruled, that it is not necessary to make all the joint debtors against whom judgment was obtained parties defendants to a creditors’ bill, provided it distinctly appears in the bill that those who are not joined in the suit are wholly insolvent and destitute of property. 5 Paige 505.

The chancellor sustains the general rule, as before stated, but makes this an exception upon the circumstances.

Upon the argument, much reliance was placed upon the cases referred to, showing the necessity for the assistance of the other party in taking the account. It is true, the bill prays that an account may be taken of the amount due upon the judgment, but equally true that the bill contains an express, positive allegation, that the whole amount of the judgment is still due and unpaid, over and above all set-offs. This is admitted by the demurrer, and being so admitted, there is no ground for making the other defendant in the judgment a party, either because he may have paid any part of the judgment, or for any assistance in taking the account. 3 Atk. 406.

It seems to me, then, as this bill contains an averment that Cooper is insolvent and entirely destitute of property, the necessity of making bim a party is dispensed with.

The last objection necessary to bo noticed is, that there is no sufficient averment that Eurotas P. Hastings was appointed assignee in bankruptcy of the complainant — -that is, assignee in this particular case.

The statute is, that the property and rights of property of the bankrupt shall, by mere operation of law, from the fact of his being declared a bankrupt by a decree of the court, from the time of such decree bo divested out of him; and the same shall bo vested, by force of the same decree, in such assignees as from time to time shall be appointed by the court for that purpose.

The bill follows the language of the statute in saying that the complainant was divested of the property by the decree, and that, by it, it was vested in Mr. Hastings, assignee appointed by the court. If the words “ for that purpose,” had been added, there could not have been any doubt of the sufficiency of the allegation. They are not added, 'but it appears to me it must be understood tliat the assignee was appointed for that, and for no other purpose; and that, under the more liberal rule applicable to pleadings in equity, than that applied to law pleadings, where greater strictness is required, this statement must be bold to be sufficient. Story’s"Eq. PI. sec. 240.


author: Greer, J.

text:
    The People v. John Doe.
    A challenge to the array must bo In writing.
    The defendant, on being arraigned in the comity court on an indictment for murder, requested to be tried before the circuit judge, under the provisions of see. 7 of the act to regulate and define the jurisdiction of the circuit and county courts. Sess. L. 1848, p. 237. On the day appointed for the commencement of the next regular term of the circuit court, the circuit judge did not appear, and his absence was noted on the journal by the clerk, and the court adjourned to the next day, when the circuit judge appeared and assigned a day for the trial of the canse. Tt war. held, that the statute requiring the assignment to be made on the first day of term was, as to time, directory only, and that the assignment made on the second day of term was good within the statute.
    An order made under the act, Scss. U. 1848, p. 237, by the county judge for summoning a jury to try a causo before the circuit judge, more than three days before the day assigned for the trial, is in compliance with the letter and spirit of the net.
    Tire most usual mode of trying the impartiality of a juror, challenged for favor, is by triers appointed for that purpose, on the demand ofthe challenging party, but it is not the only legal mode.
    Where a juror is challenged for favor, .and the challenging party, when asked by the court how he will have the challenge tried, refuses to indicate the mode of trial, it may he tried by the court by administering an oath to the juror, and propounding questions to him.
    I f a party or his counsel interpose a challenge for favor, or raise any other preliminary question involving an inquiry, and then neglects or refuses to move the trial or examination thereof, he thereby waives such challenge or question.
    The degree of force, or the means to he employed, in protecting one's person or personal liberty, must depend on circumstances. To justify a person in taking the life of another, it must appear hi3 safety required him to do so.
    On an indictment for murder generally, as at common law, the prisoner may be found guilty of murder in the second degree, under R, S. oh, 153, p, 85if
    Error to St. Joseph Circuit Court. Tndietment for murder,

      Lothrop, attorney general, for the people,
    Chipman, for the .defendant.
   By ihe court,

Greer, J.

The defendant was indicted in the St. Joseph county court, in December, 1848, for the crime of murder in the first degree. Being- a stranger, and his name being unknown to the jurors, he was indicted by the fictitious name of “ John Doe,” and also by a description of his person. On being arraigned, he pleaded not guilty, and requested to be tried before the circuit judge, pursuant to the provisions of section 7 of An act to regulate and define the jurisdiction of the circuit and county courts,” Sess. L. 1848, pp. 237, 238. This request was duly noted by the clerk of the circuit court upon his docket. On the day appointed for the commencement of the next regular term of the circuit court for St. Joseph county, the circuit judge did not appear in said court, and his absence was duly noted upon tlie journal by the clerk, and the court adjourned to tlie next day, when the circuit judge appeared and assigned the 2'Tth day of December, 1848, for the trial of the cause, and notified tlie county judge and prosecuting attorney thereof. More than three days before that assigned for the trial, the county judge-made an order for the summoning of a petit jury for the trial of the cause. On the clay assigned for the trial, and when the petit jury were about to be called for that purpose, the counsel for the prisoner challenged the array, and assigned the following causes, viz:

“ 1. That the order naming a day for the trial of said indictment, was not made by the circuit judge until the second day of the term, as appears by the journal.

“ 2. The county judge did not make the order for the jury to try the cause, three days -previous to the day named for trial.”

Another cause was assigned, which W’as abandoned upon the argument.

It is a sufficient answer to this challenge, that it was not made in writing, but orally, and was'not reduced to waiting in any form until after it -was overruled by the court, when the alleged causes of challenge were allowed to be entered upon the journal, at the request of prisoner’s counsel. 1 Chitty’s Cr. L. 546.

But I am of opinion, that the objections assigned could not prevail in any form. The statute requiring the circuit judge to assign a day for the trial, is clearly directory so far as time is concerned, and in case of his refusal to assign a day1', the supreme court, upon a proper application, would undoubtedly compel him to assign a day, even after the first regular term subsequent to the request of the defendant had gone by.

The order for summoning a petit jury having been made more than three days before that assigned for the trial, the statute was in that- respect fully complied with, according to its letter and spirit.

The next question arising upon the bill of exceptions grows out of the following proceedings:

Lewis Miller having been called^ as a juror by the clerk, the counsel for the prisoner rose and remarked that he challenged the juror for favor. The court desired the clerk to administer the usual oath to the juror, wliereupon the counsel for the prisoner objected. The court then requested the counsel for the prisoner to indicate what course he desired to be pursued to test the validity of the challenge. The counsel for the prisoner said he had no suggestion to make, that he left the court to adopt its own course — insisting upon his objection. The court having caused the usual oath to be administered to the juror, stated to the counsel for the prisoner that he could propound such questions to the juror as ho might deem proper. The counsel for tho prisoner declined assigning any cause of challenge, except as aforesaid. The counsel for the prisoner was asked if he desired triers, but lie declined saying whether he would or. would not.” The counsel for the prisoner excepted to the ruling of the court.

“A challenge to the favor was understood and admitted to be made as to the remaining jurors — same disposition of question.”

The counsel for the prisoner insists, that upon his challenging the jurors for favor, it became the duty of the .court, on its own motion, to appoint triers, and that the court had no power to proceed upon tho challenges in any other manner. In this the counsel is mistaken. The most usual mode of trying the impartiality of a juror challenged for favor, is by triers appointed for that purpose, on the demand of tho challenging party; but this is not the only legal mode.

In the case of The People v. Rathbun, 21 Wendell 510, the jurors, on being challenged for favor, were sworn and examined, and their competency determined by the court; and this having been done without objection, the court subsequently refused triers when demanded, and it was held not to be error. See, also, 4 Wendell 229, The People v. Mather.

In this case, the court requested the counsel for tho prisoner to indicate what course he desired to be pursued to test the validity of the challenge, and he replied that he had no suggestion to make, but that he left the court to adopt its own course — still insisting upon his objection. It does not appear, except by inference, to what the objection was made, but it seems to have been to the administering of tho usual oath to the juror by the clerk.

The counsel for tho prisoner appears, in this instance, to have entirely misconceived his own duty, as well as the power and duty of the court, and I think tho court would have been entirely justifiable, under tho circumstances of this case, in disregarding the challenge, if it were pot its'imperative duly to do so. Of what does'the party complain? Did the court deny any application, or motion of the prisoner’s counsel ? No; but the counsel for the prisoner assumes that the court, by omitting- to appoint triers, deprived the prisoner of a right. The answer is, that by not' claiming- the right, he waived it; and that it was expressly waived by leaving the court to adopt its own course. If a party or his counsel interpose a challenge for favor, or raise any other preliminary question involving- an inquiry, and then fold his arms and neglect or refuse thereupon to move the trial or examination thereof, he thereby waives such challenge or question, and it is very clear that the court may propqrly disregard it.

On the trial, one E. II. Pride, a witness sworn on the part of the prosecution, testified that he was an acting- justice of the peace of the township of Fawn River; that two.men called at Toll’s store in said township where witness was, one of whom was Hathaway, who resides there, and the other called himself a constable from Indiana. The counsel for the prisoner objected to the witness testifying to what he called 'himself, which objection was overruled, and the testimony admitted. The witness was then asked what they wanted him to do, and he was proceeding to say that they asked him to aid in arresting- a man who had stolen a span of horses in Indiana, when the counsel for prisoner objected to the evidence: the court overruled the objection, and the evidence was received. To these rulings of the court the counsel for the prisoner excepted.

It appeai-s further, from the bill of exceptions, that upon these objections being made, tbe court decided, that if the testimony was merely introductory, and necessary to explain other facts material to the issue, the testimony might he competent; and that the prosecutor thereupon stated to the court that such was its character, whereupon the objections were overruled.

The object of this testimony, in connection with other evidence given upon the trial, appears to have been, to show tbe character of the transaction which resulted in the death of Fanning. John C. Richmond, a witness subsequently introduced, testifies to a conversation which he had with the prisoner on the same day, and after his arrest, in which the prisoner confessed having stolen a span of horses, and stated, as a reason why he ran, that when the constable came, he knew him, and knew what ho was after.- The testimony, taken together, showed that both the prisoner and those who were pursuing him, including Fanning, understood that they were only endeavoring to arrest the prisoner on account of a supposed theft committed by him, and that they were not pursuing him for the purpose of doing any violence to his person,

In this view of it, the testimony seems to have been properly received, though it did not appear -that those making the attempt had any legal right to arrest the prisoner.-

The prisoner was charged with murder in the first degree, and the testimony in question was very proper, as tending to show the scienter. See The People v. Rathburn, 21 Wendell 510; and The People v. Bodine, 1 Denio 283.

The charge of the court upon the specific instructions which the prisoner’s counsel requested might he given by the court, was as favorable to the prisoner as he had a right to require. The court instructed the jury that “ a person was authorized to defend his person or personal liberty to the extent claimed by the counsel for the prisoner; hut that the degree of force, or the means to be employed in protecting his person or personal liberty, must depend upon circumstances: that to justify a person in taking the life of another, it must appear that his safety required him to do so: that in the case before the court, there was no evidence that the person or personal liberty of the prisoner had been assailed by the deceased when the wounds were inflicted upon him by the prisoner, which it is admitted by the prisoner proved fatal.”

In the case of the Commonwealth v. Selfridge (Selfridge’s Trial, p. 160), the principles of law relative to destroying life in self defence are very clearly and perspicuously laid down by Mr. Justice Parker. He says:

First: That a man who, in the lawful pursuit of his business, is attacked by another under circumstances which denote an intention to take away his life, or do him some enormous bodily harm, may lawfully kill .the assailant, provided he use all the means in his power, otherwise, to save his own life or prevent the intended harm; such as retreating, as far as he can, or disabling his adversary without killing him, if it he in his power.

Secondly: When the attack upon him is so sudden, fierce and violent, that a retreat would not diminish, but increase his danger, he may instantly kill his adversary without retreating at all.

Thirdly: When from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life, or commit any felony upon his.person, the killing of the assailant will be excusable homicide, although it should afterwards appear that no felony was intended. • , *

By comparing this language, which expresses the well established and recognized doctrine on this subject, with that used by tho Chief Justice in the case under consideration, it is very apparent that the-prisoner had nothing to complain of in that respect.

But it is insisted that the last clause of the charge contains a statement not warranted by the evidence. Upon a careful examination of all that appears in the bill of exceptions, I cannot discover that it is-not warranted.

As to the question of identity between the prisoner and the person who inflicted the. mortal wounds upon Fanning, it is only necessary to-remark, that so far as appears, all the witnesses who testified in relation-to the infliction of the wounds, and the confession of the murder after-wards, identified the prisoner at the bar, and that no question of identity appears to have been made on the trial.

Finally, it was insisted on the argument, that inasmuch as the indictment was for murder generally, as at common law, and the jury found the prisoner guilty of murder in the second degree only, no judgment could be given upon the verdict.

That is precisely the form of indictment contemplated by our statute.- R. S. ch. 153, p. 658. The statute does not undertake' to defino the crime of murder, but only to distinguish it into two degrees, for the purpose of graduating the punishment. This ajrpears very evident from section three of the chapter referred to, which is as follows:

“ The jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder ’ of the first or second degree; but if such person shall be convicted by confession, the court shall proceed by examination of witnesses to determine the degree of the crime, and shall render judgment accordingly.”

If it were necessary to frame the indictment so as to charge murder of a particular degree, the section here quoted would be entirely nugatory.

Upon the whole, there does not apjiear to be any good gr'óund fot reversing the judgment upon the record, or granting a new trial upon the bill of exceptions.

Judgment affirmed.


text:
    The People v. The Detroit and Pontiac Rail Road.
    A roil road company incorporated before the late revision of the statutes, whose charter is silent as to taxation, is liable to pay the specifio tax imposed by R. S. ch. 21, sec. 5, p. 121.
    Case reserved from Wayne County Court.
    The only question in the case, was, whether the rail road company, which was incorporated in 1834, and whose charter is silent as to taxation, was liable to pay the specific tax imposed on rail road, canal and turnpike companies, by R. S. ch, 21, sec. 5.

      Lothrop, attorney general, for the plaintiff.,

      Douglass, for defendant.
   By the court,

Miles, J.

The question submitted to the court in this case, is, whether the defendant is liable to pay the specific state tax imposed by ch. 21, R. S., p. 121. The power to tax the property of corporations as well as that of individuals, seems to be well established. This, however, was not accomplished without a struggle on the part of those whose interests have been thus seriously affected. The charter of the Providence Bank in the state of Rhode Island, was granted in If 91, and previous to the passage of an act of the legislature in 1822, imposing a tax upon bodies corporate within the state. The collection of this tax was resisted, upon the ground that the act was repugnant to the constitution of the United States, inasmuch as it impaired the obligation of the contract 'created by the charter of incorporation. Before the case was argued, the doctrine had been settled, in the Dartmouth College case, that a contract entered into between a state and an individual, was as fully protected by the 10 th section of the 1st article of the constitution, as a contract between two individuals: and it was not denied that a charter incorporating a bank was a contract, and the question was, whether that contract was impaired by taxing the bank. The discussion of this question necessarily involved the inquiry whether the power of taxation was inconsistent with the charter: and it was strongly insisted that it wag? mainly fqr the reason that this power-might be so exercised as to destroy the object for which the charter was given.

Chief Justice Marshall, in the opinion delivered by him deciding the case, uses this language: “ The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the bodj politic.” “This is an original principle, which has its foundation in society itself — it is granted by all for the benefit, of all — it resides in government as a part of itself, and need not be-reserved when property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies.”

In reply to the proposition of counsel, that a power which is in itself capable of being exerted to the total destruction of a grant, is inconsistent with the grant, and is, therefore, impliedly relinquished by the-grantor, though the language of the grant contains no allusion to the subject, he says: “ If this be an abstract truth, it may be supposed universal — but it is not universal, and, therefore, its truth cannot he admitted in these broad terms in any case.” He alludes to- a grant for land made by the government, the object of which is, that the profits issuing- from it shall enure to the benefit of the grantee, and yet the power of taxation may be earned so far as to absorb those profits, and then says: “We must look for the exemption in the language of the instrument, and if we dq-not find it there, it would be going very far to insert it by way of construction.”

•This case was decided at the January term, 1830, 4 Peters 514. Fifteen years before that time, the case of the Portland Bank, in Massachusetts, was decided by Chief Justice Parker. In the course of the .opinion delivered, he makes this pertinent'inquiry: Did the legislature,. when it incorporated the plaintiffs, relinquish the right of laying an excise or duty upon the business which they should transact during the continuance of the corporation ? The answer which he gives, is, “ There is no express waiver or relinquishment, nor is there any strong implica» tion of one.” The object of their charter is to enable them in a body to conduct their business as an individual, to make contracts, and to enforce them as such, avoiding thejnconveniences of a partnership. This is all that is asked for by the company, and all that is given by the charter. It is a privilege to manage their business, and not an exemption from duty.”

The right to impose a specific tax or excise, was made a point in judgment in that case, and was clearly and fully sustained under the provisions of the constitution of that state authorizing the legislature to impose and lay reasonable duties and excises upon any produce, goods, wares, merchandizes and commodities whatsoever. 12. Mass. 252.

In the case of Ontario Bank v. Bunnell, it was determined that the real and personal estate of a banking corporation was subject to taxation in a village where it was located, authorized by law to raise money by tax for certain purposes: that it was an inhabitant within the meaning of the act directing the tax to be assessed upon the freeholders and inhabitants of such village. 10 Wendell 186.

The power of exempting property from taxation seems to be equally well settled. The power of the state in making the grant in this case, or in any case, to impose upon the party accepting it such conditions, or to extend to it such privileges as may best comport with sound policy, within constitutional limits, seems to be conceded in the argument in the opinion in 4 Peters. In arguing whether the contract was impaired by taxing the bank, the court say, this question is to be answered by the charter itself, and that it contains no stipulation promising exemption from taxation.

The question, then, put to us, must be answered in the affirmative.

Certified, accordingly.


author: Greek, J.

text:
    Bacon v. The County of Wayne.
    The county is not liable to an attorney for defending a prisoner at the request of tho court, where the prisoner is poor and unable to employ counsel.
    Cash reserved from Wayne Circuit Court.

      J. M. Howard, for Bacon.

      Stewart,prosecuting attorney, for the county.
   By the court,

Greek, J.

A poor person was brought before a magistrate in the city of Detroit, charged with the crime of murder. The magistrate, having satisfied himself that the prisoner was unable to employ counsel to defend him, requested Mr. Bacon, an attorney and counsellor of this court, to undertake the prisoner’s defence, which he did. The prisoner was indicted and fried for the offence in the circuit court for the county of Wayne, and Mr. Bacon acted as his counsel on the tidal. For these services Mr. Bacon charged the county of Wayne fifty dollars, and presented his account therefor to the board of county auditors, who rejected the claim. From the decision of the board of auditors the claimant appealed to the circuit court for the county of Wayne, where the question was reserved for the opinion of this court. On the argument of the case here, it was conceded by the counsel for the appellant that this was not a strictly legal claim against the county, but' it was insisted that it was so manifestly just and meritorious in its character, that the board of auditors ought to have allowed it: that the prisoner, being charged with one of the highest crimes known to the law, involving, if found guilty, the utmost punishment inflicted for any crime except treason, and being wholly unable to employ counsel to assist in his defence, must have been entirely undefended, and perhaps unjustly convicted and punished, had not counsel been provided for him, unless some one should have volunteered in his defence as a matter of chaiity, which it is claimed ought not to be expected of counsel: that under these circumstances, it is due to the administration of justice, and required by the plainest principles of humanity, that counsel be provided to defend the accused, and. paid by the county as a part of its just expenses in the administration of the criminal laws.

The board of auditors for the county of Wayne, and the boards of supervisors of the other counties, are authorized, and it is made their duty, to examine, settle and allow all accounts chargeable against their respective counties. R. S„ eh. 14, secs. 3 and 29. And when any claim of any person against a county is disallowed, in whole or in part, such person is authorized to appeal from the decision of the board disallowing it, to the circuit court for the same county. .Id., secs. 24 and 32. Appeals from these boards are to be heard and determined in a summary manner by the courts to which they are taken. Id., sec. 26.

Whether it is proper for the board of auditors, under any circumstances, to allow a claim in favor of an individual, which could not be enforced by an action at law or a suit in equity, because they shall think it morally-right and just that it be paid by the county, we do not feel called upon now to decide. It is very certain, however, that if the board should allow such a claim, no appeal can be taken in behalf of the county from their determination.

Supposing them to possess, the large discretion claimed for them by the appellant in this case, does it follow that the circuit court, in reviewing their decision on appeal, can control the exercise of such a discretion ? I apprehend not. The court acts judicially in determining the appeal, and unless expressly authorized to be governed by its own sense of what is right and just in the premises, it acts only as the exponent of established principles of legal or equitable right, and pronounces in each case, according to the circumstances attending it, the judgment of the law, and not its own sense of what the law ought to be.

The only question for the circuit court to determine in this case, is, whether the claim disallowed by the auditors is a legal charge against the county: and, it being conceded that it is not strictly so, the decision of the board of auditors appealed from ought to be affirmed, and judgment rendered in favor of the county against the appellant for costs.

Certified accordingly.


text:
    Vanderhoof v. Dean.
    D brought a suit in attachment in the county court against V, who appeared and moved to quash tho attachment for an alleged defect in the affidavit on which the attachtaont was issued, which motion was denied. Issue was then joined, and tho subject matter of the suit was afterwards submitted by the parties urnder the statuto (E. S., ch. 129), to arbitrators, who made an award in favor of D, on which a judgment was rendered by the court. V brought error, and insisted on the supposed defect in the affidavit as a ground for reversing the judgment. It was Held,

    1. That the submission of the subject matter of the attachment suit to arbitrators Was a discontinuance of tho suit.
    2. That as the court had power under tho statute to rondar judgment on the award of the arbitrators, that part of tho record anterior to tho submission might bo rejected by the court.
    8. That the submission was a waiver of all orr'ors tip to tho tinie of making it;
    Error to Wayne Circuit Court. A suit in attachment was brought by Dean against Vanderhoof, in Wayne counly court, in Debembel, 1847, and on the return of the writ of attachment a motion was made to quash it, by Vanderhoof, for an alleged defect in the affidavit oil which it issued, which motion was denied. Issue was thereupon joined between the parties, and the cause continued, from time to time, until the 21st April, when an agreement was entered into submitting all matters involved in the suit to the award of arbitrators selected by the parties, and a submission was drawn up and acknowledged by them before an officer authorized to take the same. On the 2d May the arbitrators made their award, which was on the same day filed in court, awarding to Dean the sum of $89 52; and on the 18th July, on motion of Dean’s attorney, a judgment was rendered in her favor on the award. Vanderhoof carried the case by certiorari to the circuit court, which affirmed the decision of the county court, and to reverse these judgments the present writ of error was brought by him.

      jBishop, for the plaintiff in error.

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

Whipple, C. J.

The error assigned in the circuit court was founded on the decision of the county court, denying the motion of the plaintiff in error to quash the writ of attachment. The error assigned ill this court presents the same question.

From the view I have taken of this case, it becomes unnecessary to determine whether the decision of the county court, and the affirmance of that decision by the circuit court, upon the motion to quash the twit of attachment, was right or wrong: that question, in my opinion is not properly before us for adjudication.

Issue having been joined, the parties thought proper to refer the subject matter of the suit to arbitrators. A written stipulation to that effect was entered into between them, and was duly acknowledged before a. proper officer.

What was the legal effect of this act of the parties ? It was clearly to withdraw the suit from a tribunal constituted by law, and refer the matter in controversy to the determination of a domestic tribunal of their own creation. Our statute has authorized parties to submit any controversy which might be the subject of an action at law or suit in equity (with few exceptions), to the decision of arbitrators; and when thus submitted under the regulations provivedby the statute, judgment may be summarily entered on awards. If a controversy exists between persons, either is at liberty to appeal to the tribunals established by law for its determination, or, both consenting, its adjustment may be referred to judges of their own selection.

In the case before us, the defendant in error, Mrs. Dean, resorted to the county court for the recovery of a sum of money which she claimed was honestly due her from the plaintiff in error, who controverted this claim. The issue having been made lip, the parties thought proper to avail themselves of the provisions of our statute, and agreed to submit the controvesy between them to the determination of three arbitrators. By this act the forum in which the cause was to be heard and determined, was changed: thenceforth, by the implied assent of the parties, it was no longer pending in the county court. Ho proceeding on the part of the court was asked for, or required to give validity to the act of the parties. The agreement to submit a cause pending in court to arbitrators, operates as a discontinuance of the cause in court, as effectually as if a rule to that effect had been entered under the sanction of the court; and this results from an Implied understanding that, having made choice of another tribunal provided by law in which to litigate tlie matters in controversy between them, they will no longer prosecute the suit in the public tribunal in which it may be pending. And this implication seems reasonable and just; otherwise two or more suits-may be pending in different courts at the same time, involving the same subject matter: this the law will not tolerate;

In the ease of Wells v. Lain, 15 Wendell 99, Chancellor Walworth admits, that “ a general agreement to. submit to arbitration operates as a discontinuance, from the implied understanding of the par-ties tha the suit is to be no further prosecuted.” He was of opinion, however, that “ a valid submission might be made, leaving the suit in full life provided it appears from the agreement itself that such was the intention of the parties.” No case is cited, and none, it is believed, can be found in support of this pfopositiotr. It was repudiated by the court of errors, as will be seen by reference to the opinion of other members of the court-in the same cause. Senator Tracy, in delivering his opinion, uses this language: Here was an agreement between the parties to arbitrate the subject matter of the suit.” “It is not doubted that a parol submission in ordinary cases is valid, nor that a valid submission discontinues the suit.” Again: “ A- reference under the statute is strictly a proceeding in the suit;” “ but a submission to arbitration is not merely an agreement to discontinue, but is, eo acto, a discontinuance which requires no subsequent interposition of the court to give it effect.” The language of Senator Maison is equally clear: “ These parties, then, having- a right to submit this matter to arbitration, and having agreed to do so, the suit is discontinued.” The same doctrine is maintained by Senator Edwards.

The case of Larkin v. Robbins, 2 Wendell 505, is also in point Mr. Justice Marey, in that case, held, that the submission of a cause to arbitration, the arbitrators never taking or consenting to take upon themselves the burden of the' submission, operates as a discontinuance of a suit pending in court.” See, also, opinion of Parker, Ch. J., 17 Mass. 603; 1 Wendell 314, 516; 6 Cowen 399.

Applying the principle I have been endeavoring to establish to the case before us, I think enough appears on the record to support the judgment of the circuit and county court. The statute in relation to arbitrations appears to have been literally complied with: 1, there was a written submission; 2, that submission was duly acknowledged by the parties before comjretent authority; 3, an award in writing was made by the arbitrators; 4, judgment was entered for the amount specified in the award. It is said that the county court and the parties treated the agreement to submit as a proceeding in the cause. Such, I have no doubt was the fact; but this circumstance cannot affect the legality of the judgment, provided enough appears on the face of the record to support it. The county judge undoubtedly erred in treating the report of the arbitrators as an award made in a cause then pending in court, instead' of an award made under the statute, and upon which he was authorized td render a judgment.- But this court, in cOnsider"ing the case, may reject so much of the record before' them' as embodies the proceedings of that tribunal anterior to the report of the arbitrators. The error of the county court can in no resjject affect the validity of the judgment on the award.

It was argued, that, as by the agreement of the parties to refer the cause to arbitration, the award to be made' was to have “ the' effect of a verdict, and' that judgment might be rendered on said áwar-d ás upon a verdict,” the obvious intention of the parties was to retain the cause in court, and that the ¡rlaintiff in error is therefore, permitted tó assign errors upon any part of the record. Admitting that the views of Chancellor Walworth are right, ás expressed in the case of Wells v. Lain, I am clearly of the opinion that this part of the agreement would, of itself, operate as a waiver of all errors up to the date óf the submission. It would seem inconsistent with good faith, that the defendant bel'ow should be permitted to allege irregularities in the proceedings in the cause, after he had consented to refer the cause to arbitratióh, and authorized the court to render judgment in case the award should be against him. I think such an act would operate as a waiver of all' errors, and that the defendant is estopped from alleging any that may have crept into the proceedings previous to the date of the submission.

It was also intimated, that the agreement to' arbitrate was not within the statute, inasmuch as the award was t‘o be considered in the light of a verdict. We have had occasion to determine, at the present term, that unless a submission is within the- statute, the summary mode of enforcing an award by a judgment would be unauthorized. I cannot, however, regard this part of the stipulation as impairing the authority of the county court to enter judgment on the award. -Under our statute; the award of the arbitrators may be • likened to the verdict of a jury. In the one case, we have the judgment of three persons selected by the parties; in the other, the judgment of twelve persons selected in the manner provided by law. The judgment in the one ease is called an award — in the other a verdict: in both cases, however, the county court have the authority, unless upon good cause shown, to rende? its judgment. The intention of the parties in introducing this clause in the agreement, is perfectly obvious: it was, in the language of the stipulation, “ that judgment might be rendered on said award in said cause as upon a verdict.” This was unnecessary; the statute gives express authority to “ render judgment in favor of the party to whom any sum of money or damages shall have been awarded, that he recover the same.” The court are, therefore, authorized to reject, as immaterial, this part of the agreement.

It follows, that the judgment of the circuit court must be affirmed.

Judgment affirmed,.


text:
    People v. Hart.
    The penalty given by R. S. cli. 41, seo. 1, for selling wine, brandy, rum or other spirituous liquor, without a license as tavern keeper or common victualler, may be recovered by indictment.
    Case reserved from Macomb County Court. Hart was indicted and convicted in the county court for selling liquor, contrary to the provisions of sec. 1, ch. 41, R. S., p. 184. He moved an arrest of judgment, on the ground the penalty given by the act could not be recovered by indictment, and the question was reserved by the county judge for the opinion of this court.
   By the court,

Miles, J.

To determine the .question reserved, it is only necessary1 to look at the different provisions of the statutes relating to the subject,

The first section of chapter 41J R.'S., p. 184, forbids any person be7 ing a common seller of spirituous liquors, “ on pain of forfeiting one hundred dollars.” The thirty-first section provides for the recovery of all penalties and forfeitures prescribed in the chapter in an action of debt.

By section 3, R. S., p. 560, jurisdiction is conferred upon justices of the peace of all actions for the recovery of penalties or forfeitures when the amount of the penalty or forfeiture shall not exceed one hundred dollars. Section 10 of the same chapter, declares, that in all cases where the penalty or forfeiture shall be one hundred dollars or more, it mgy be recovered by indictment in the proper court of the county.

The county court has jurisdiction' of all matters at law, civil and criminal, except in probate cases, actions of ejectment, and cases civil and criminal, which are by law made cognizable before justices of the peace.

Here, although a justice has jurisdiction in an action brought to recover the forfeiture, yet he cannot have jurisdiction of a proceeding by ■jyay of indictment to accomplish the same- object.

The law makes no proyision for summoning an inquest or grand jury in a justice’s court, and without such jury an indictment cannot be found. Hence guch proceeding must necessarily be commenced and prosecuted in the county court, where alone a grand jury can be sumpnoned,

That part of the statute conferring power upon a justice of the peace to entertain the civil suit, contains no words of exclusion against any other tribunal. The statute confers the same power upon any other proper court, to be exercised in a different form of proceeding. The county court is the proper court to proceed in the mode indicated by the statute.

We think, then, it should be certified to the county court of Macomb county, that the motion in arrest of judgment should be overruled.

Certified accordingly. .