author: Sutherland, J.

text:
    Lorenzo M. Mason et. al., vs. Amisi Slawson.
    Circuit Court Commissioners have no jurisdiction to act os Injunction Masters incases nof pending in the county in which they reside.

      Alpena Circuit.
    Motion to dissolve injunction.
   By the Court,

Sutherland, J.

The bill seeks performance of an alleged agreement.

It states that a mutual agreement was made, and then that a synopsis was reduced to writing, which is set forth. ' This purports to be a proposition for an exchange of lands, on certain contingencies mentioned, to be determined at a time subsequent to that of filing the bill. There is no statement that there was anything afterwards done to render the proposition absolute, nor is it alleged that it was aeeepfced. If accepted and a valid bargain, certain in all its provisions had thereby been made, the bill was prematurely filed, unless the Court could give effect to a contemporaneous,verbal agreement alleged to have been made, modifying and explaining the terlns of the written proposition. Such a variation of a written contract concerning lands cannot be relied on. Being contemporaneous with the writing, it is incapable of proof, by a well settled rule of evidence, and being an agreement concerning land, and no past performance alleged, it is void by the Statute of Frauds. The Bill shows no equity.

The -injunction was allowed by an Injunction Master of Bay County! It is insisted by the defendant that his allowance of the writ is void.

The office of Injunction Master was created by the statute of 1846. R. S., 427, Sec. 59.. The following sections show the territorial jurisdiction of such officers, aud the scope of their powers:

Sec. 59. The Supreme Court shall designate one of the Masters in Chancery.to he an Injunction Master, who shall have power to grant injunctions within his Circuit, in the eases provided by law.
“ See. 60. Such designation shall be in writing, and shall be filed in the office of the Clerk of the Supreme Court of the Circuí t for which such Injunction Master shall be designated.
“Sec. 61. The Supreme Court may by general rules authorize and empower the Injunction Masters, or any of them in their respective Circuits, to hear and determine all such motions, and to make all such orders in suits and proceedings pending as it shall deem proper, and subject to such regulations as it shall prescribe.”

The Legislature changed the office, somewhat, in 1847. Session Laws, 1847, p. 171. But they continued to be authorized to grant injunctions within their judicial Circuits.

The Constitution, by abolishing the office of Masters in Chan-.eery, abrogated these statutes. ' Circuit. Court Commissioners, since the adoption of the new Constitution, have been empowered to perform the duties formerly performed by Masters in Chancery, and by the act of 1851, entitled “ An Act to provide for the discharge of the duties heretofore performed by Injunction Masters,” (S. L. 1851, p. 277,) it was enacted that a Circuit Court Commissioner in each county should be designated, and being so designated, should be authorized and empowered to do and perform all the duties heretofore performed by Injunction Masters, under such restrictions and regulations as the Supreme Court should prescribe.

It is manifest from these provisions that Injunction Masters under the present statute, are to have the sspne powers in their counties respectively as such Masters originally had within their Circuits.1— He can not, act as such in cases not pending in his county.

The injunction must be dissolved.'


source: Caselaw Access Project

author: Blackman, J.

license: Public Domain

text:
    Anonymous.

      Held, An affidavit to entitle a person to an attachment under § 3670, Com. Laws, in Insuffioien to authorize the issue of the writ, in which deponent swore, u he believed the defendant was about to abscond,” &c.
    A bond for an attachment in a Justice’s Court, which has but one surety is irregular, merely and may be amended.
    A motion to quash proceedings, should state tersely and definitely the grounds of error relied

      Berrien Circuit,

    1871.
    Attachment suit commenced before a Justice.
   By the Court,

Blackman, J.

This case comes here on special appeal from Justice’s Court.

Proceedings were commenced by attachment. The affidavit stated, “Deponent believes defendant is about to abscond,” &c.

By C. L., § 3670, the deponent must swear that he “ knows, or has good reason to believe,” &e. Thisrequires. deponent to depose-as to facts and belief. . Where deponent may-swear to good reasons,he must also depose that he believes them. See Stevenson vs. Robbins, 5 Mis., 18; Drake on Attachment, § 106.

For these reasons the affidavit is a nullity, and the Justice acquired no jurisdiction. The bond had but one surety. This bond is irregular, but the defect- is not jurisdictional and may be amended. The justice held otherwise, which is error.

The writ must be quashed with costs.

I can -not let this occasion pass without noticing a defect which is bad'practice The motion in this case does not specifically point out the errors, and if the objections had not been fundamental I might perhaps.have felt it my duty to hold the motion insufficient, because indefinite. The reasons- why an affidavit is void should be stated tersely and definitely, so that no oral additions are necessary to know what the mover finds fault with. It seems the errors were pointed out to the Justice, who disregarded them.


author: Cooley, J.

text:
    The Mansfield, Coldwater and Lake Michigan Railroad Company vs. Clark.
    1. In condemning lauds for railroad purposes, questions of title are not to be considered by the jury.
    2. The report of the jury or commissioners must distinctly set forth the necessity of the taking, and they cannot properly make one which will warrant the taking of the land unless satisfied not only that the particular land is needed for the construction of the work, but also that the work itself is one of public importance.

      o. The proper course when ajury íb required of persons of a particular qualification is for the order to direct the summoning of such persons.
    Appeal from Branch Circuit.
   Opinion \>;j

Cooley, J.

This was an appeal from the finding of ajury in the matter of condemning land for railroad purposes.— The petition does not clearly show that Clark owned the premises in question. The jury appear not to have fully understood the matter, but inasmuch as Clark “ claimed” to own this piece of land they assessed the damages they thought him entitled to; hut whether they gave him the value of the land, or only the value of some doubtful claim, does not appear. It is not claims” which are to be appropriated under the statute, but lands. A party might be seriously wronged if his freehold might be taken on an award of the jury of a mere nominal compensation because of .their want of faith in the validity of his title. Questions of title are not to be determined by this jury, but may come up in a proceeding to settle the right of the money awarded.

Held, Also, that the verdict of the jury is defective in that it does not find the necessity for the taking of this property for the public use. What they say is that “ it is necesssary that said real estate and property should be taken for the purposes of sai$K company.” This is not the finding required by the. constitution either in form or substance. Tl^e report of the jury or commissioners must distinctly set forth the necessity of the taking, and they cannot properly make one which will warrant the taking of the land •unless satisfied not only that the particular land is needed for the construction of. the work, but also that the work itself is one of public importance.

Held farther, That the objection that the jurors are not affirmatively sworn to be freeholders is not well taken. No challenge was interposed, nor was there any showing that any of the jurors were disqualified. On the contrary the claimant expressed himself satisfied with the jury when they were impaneled. Had there been no appearance of the claimant, or no facts operating as a waiver, the case would have been different. The proper course when a jury is required of persons of a particular qualification is for the order to direct- the summoning of such persons. This is only an ordinary application of the general and very first rule, that in proceedings to take the property of the citizen against his will, all the conditions to the taking which have been prescribed by the law must affirmatively appear to have existed.

The proceedings in this case being void they are set aside with costs.


author: Sutherland. J.

text:
    William N. Gray vs. Moses Koch.
    Whether, upon a motion to dissolve an injunction, after answer, the complaiuant may mid affidavits to contradict the answer, — quere.
    Injunctions mandatory in substance, though in form merely prohibitory, may bo grauted.— Buttojustify this extraordin iry process,a case of great urgency, to prevent irreparable injury, and clear of all doubt as to complainant’s title, must be presented.
    No property can be acquiredin words or marks which do not denote the goods or property, or particular place of business of a person. ECeld, accordingly, that no person, by prior use, can acquire an exclusive right to the use of the words “Mammoth Wardrobe,” as a sign or designation of aplace where a large amount-of clothing is kept.
    Without a suggestion of falsehood or a suppression of truth, there can be no fraud.

      Saginaw Circuit.

   By the Court,

Sutherland. J.

The parties to this suit arc? severally engaged in selling ready-made clothing in the city of East Saginaw. They occupy adjoining rooms-in the same block, fronting on Genesee Street.

In March last, the complainant caused to be put up on the wall of the building, over the-entrance to his store, the words “ Mammoth Wardrobe ” Below ,it, immediately above the door, is the complainant's name in large gilt letters. On the top of the building, in large letters, the complainant has kept, for a longer time a sign in these words ; “ W. JN. Gray’s Great Wholesale and Retail Clothing Emporium/’ and on the windows on either side of the entrance, other words indicative of the complainant’s business, including his name He has also advertised his said place of business and his trade therein, in the local newspapers and the Directory, as the “ Mammoth Wardrobe,” uniformly connecting with it his name and the number of his room.

Subsequently to complainant’s adoption of the words “ Mammoth Wardrobe,” in his sign and advertisements, the defendant has painted the same words on an awning erected over the entrance to his store; and below them his name, and the number of his room.

The defendant’s name, in large gilt letters, is also placed over his door; but above the awning, and on the building, below the awning and near the entrance, is a.card displaying “The Mammoth Wardrobe,” and defendant’s name.

The defendant has advertised in the same newspapers and Directory as complainant, but without mentioning the place of business as the “ Mammoth Wardrobe.”

.The complainant’s bill charges that the defendant erected the sign in question for the fraudulent purpose of obtaining, through deception, by means of the identity of name, a part of the custom and patronage attracted to complainant’s store by his extensive advertising; which is denied by the defendant’s answer, and-the complainant insists that his prior adoption and use of that name, “ Mammoth Wardrobe,” gave him a special property in it, and an exclusive right to usé it.

On the filing of the answer, the complainant moves for a preliminary injunction according to a prayer in his bill, pending his motion on the bill and answer, and affidavits made after the answer.— The complainant, by way of relief, asks for a perpetual injunction restraining the defendant from using or vending his goods under the name and style of the- Mammoth Wardrobe,” and from using any •other trade mark or sign on, his store substantially the same in meaning, and that the sign used by the defendant may be removed, or de atroyed, or delivered to the complainant, far the costs he has been put to.

There is also a prayer for a preliminary injunction of the same restraining effect,and that the defendant may be required to remove immediately,from his awuing.the sign in question.

The defendant objects to the reading of the affidavits. Smyth v. Smythe, 1 Swanst., 252, was read in support of the objection, in which it was held that if the plaintiff moves,after answer, for an injunction to stay waste or analogous injuries,-he will not be allowed to read,on any point, affidavits filed after the answer in opposition.

But it was held in Brydges vs. Stephens, 6 Mod., 279. that in such cases,if injunction has been obtained,the plaintiff, on amotion to dissolve it, is not precluded from reading affidavits as to acts of waste,against the answer,although filed -after it. Gibbs vs. Cole, 3 P. Wms., 255; 16 Ves., 49; 1 Price, 303; 1 Ves, 543, 1 John. Ch. R. 444; 1 Smith Pr., 596, 600, are to the same effect. In Sheriff vs. Barnard, 8 Sim., 161, the same principle is recognized, but it is held that if the facts of waste indirectly bear on the question of title,the affidavits will be rejected. The exclusion of affidavits to support the complainant’s title rests also upon other authorities. 19 Ves., 146, 153.

It is said by Mason, J., in Florence vs. Bates, 2 Code R. 160, that the same principle governs,whether the motion is by complainant after answer for an injunction or by defendant to dissolve it.

In Poor vs. Carlton, 3 Sum., 80, a doubt is intimated whether affidavits after answer,contradicting it, will be excluded even on the question of title. 3 Dan. Ch. Pr., 1827, note. Judge Story remarks in that case that, “ The practice in America, has, I believe become more liberal than it is in England, and if it were necessary I should not hesitate to admit-affidavits to contradict' the answer for the purpose of continuing or even granting an injunction, where 1 perceived that without it irreparable mischief would arise.” He further remarked that though there were circumstances in the case he was considering which might make it unnecessary to assert so broad a doctrine,yet he preferred “ to dispose of the case upon the general ground that the granting and dissolving injunctions in cases of irreparable mischief, rest in the sound discretion of the Court, whether applied for before or after answer, and that affidavits may, after an swer,be read by the plaintiff to support the injunction as well as by the defendant to repel it, although the answer contradicts the substantial facts of the bill, and the affidavits of the plaintiff are in contradiction of the answer.”

The question is embarassed by too many conflicting adjudications to adlnit of any satisfactory answer without more time than I have non; at my command. It is of great practical importance, but not necessary to be settled in this case as will be seen from the view taken of other points.

The defendant resists the motion on two grounds :

1. That the complainant asks' for a writ requiring acts to be done — not a mere prohibition.

2. The complainant shows no right infringed by the defendant’s use of the sign in question.

As to the first point, it is to be observed that the gravamen of the complainant’s charge is,, that the defendant has erected and continues a sign over the entrance to his store which had been sp adopted by the complainant that it indicated the complainant’s place of business, and the defendant’s use of it drew away the complainant’s customers. The complainant asks that the defendant’s use of this sign may be interdicted until the hearing of the cause upon the merits. An injunction in the prohibitory form is asked, and also that it contain a mandate to do the act necessary to comply with the prohibition.

An injunction is a preventive remedy, and it has' been said that if the injury haS been already done, the writ can have no operation, for it can notbe applied eorrelatively so as to remove it. Atty Gen. vs. N. I. R. R. & Tr. Co., 2 Green, 136. The case of the People vs. Simonson, 10 Mich., 335, is. an instance and a fair illustration of that principle. And in that case the Court say : “ No court can by a preliminary ex parte order or process turn even a wrong doer out of possession.” In Murdock’s case, 2 Bland, 461, the Court held that the object of an injunction before answer, is to preserve all things in their then condition, not to determine any right by anticipation, or to undo or restore anything when the essential-purpose of the writ is restrained. Precedents are not wanting for framing the writ so as to require active measures to obey it. In North Eng. Junc. Railway vs. Clarence Railway Co., 1 Coll. R., 521, the jurisdiction was boldly asserted. The Chancellor in deciding that case said: “That injunctions mandatory in substance, though inform merely prohibitory, have been and may be granted, is clear. This branch of its jurisdiction may be one not fit to be exercised without particular caution, but certainly it is one fit and necessary to be exercised under certain circumstances. Under what circumstances it should be exercised must be matter for judicial discretion in each several case.” Spencer vs. London & Birmingham Railway Co., 8 Sim., 193; Robinson vs. Lord Byron, 1 Brons. C. C., 588; Lane vs. Newdigate, 10 Ves., 192; Rankin vs. Haskissen, 4 Sim., 13; Whittaker vs. Home, 3 Beav., 383; Earl of Maxborough vs. Bowen, 7 Beav., 127; Milligan vs. Mitchell, 1 Myl. & Keen, 445.

Put the opinion of the Lord Chancellor in Blakemore vs. Glamorganshire Canal Nav. Co., 1 Myl. R., 154, shows with what reluctance the Court will exercise the power.

To justify this extraordinary process, a case of great urgency,to prevent irreparable injury, apd clear of all doubt as to complainant’s title, must be presented. This brings .me to the second point made by .the defendant. Is this such a case ?

A court of equity will relieve against acts of fraud, and in so doing makes frequent use of its writ of injunction. It has exercised this jurisdiction in cases of a frudulent use of a trade mark, by which the goods of oné person are by imposition sold as those of another, or patronage of some sort lost by those who would receive it but for the wrongs by which the patrons are unwittingly deviated.

The complainant has no right to appropriate a sign or. symbol which from the nature of the fact it is mjant to signify, others may emyloy with equal truth for the same purpose. 2 Sandf. R., 599. Nameshaving a definite and established meaning in the language, and tfhich do not indicate ownership or origin, or something .equivalent, can. not be appropriated by one so as to exclude a similar use by others. 7 Bos., 231.

No property can be acquired in words or marks which do not denote the goods or property,- or particular place of business of a person. 17 Barb., 608.

•These aTe general principles that are supported hy ample authority, and according to them no person hy prior use can acquire an exclusive right to “ Mammoth Wardrobe,'’ as a sigD or designate n of a place uhere a large amount of clothing is kept. As usi.d by the defendant.the term truthfully characterizes his place of business — The words have a definite and establif-hcd meaning in the language, and do not indicate any pemn as cuntr, and it used alone on the defendant's awning would not imply an intention on his part to represent his establishment as identical with that advertised by the complainant.

Without the suggestion of falsehood or a euppressbn rf truth in words or acts, there can be no fraud. But it ihe words were such that might be approjriated as a trade mark, by having first been arbitral ily,applied by complainant, they not being an appropriate term according to general usage to describe such a place, still great doubtmight be entertained whether the defendant has not by the addition of bis name, number and other marks, so distinguished the designation Of his establishment from that of the complainant, that though each is called the “Mammoth Wardrobe’’ they are not identical or so neatly so as to require close inspection to detect the difference. Partridge vs. Menck, Sandf. Ch. R., 622. I do not see how any person could fail to recognize two establishments ; in other words it is difficult to believe that any customer attracted bv the complainant’s advertisements, and guided by the hints which they contain, and seeing his and defendant's stores, could make any .nistake,.ori8eeing only the defendant’s would be. deceived by it.

The motion must be denied with costs


author: Campbell, O. J.

text:
    New York Central Insurance Company vs. Watson.
    A clause in ft policy of insurance provided that the fame should be void in case any other insurance should be made upon the property without the-written consent of tho company, 1Tddt That subsequent insurauce without such written • consent rendered tho first policy void.
    Error to Wayne Circuit.
   Opinion by

Campbell, O. J.

Two policies of insurance were issued by plaintiffs in error to Martin & Longhead, by whom, after a loss, they were assigned to defendnt in error, who sued and recoycrcd judgment upon them in the court below.

They contained, among other things, a clause rendering them void in case any other insurance, had been made or should be made upon the property and not consented to in writing by the company. After they had been executed and become operative, another insurance was effected with the Republic Insurance Company, and never consented to in writing On the trial the Circuit Judge, under exception, left it to the jury to determine whether or not there had been any waiver of this condition or of the forfeiture under it.

Held, That there, was nothing in the case to authorize this matter to be submitted to a jury. As already held in Western Insurance Company vs. Riker, 10 Mich., 279, and Security Insurance Company, vs. Fay, in our reporfs, the policies became absolutely void at once upon the obtaining of the last insurance without consent. Nothing could waive the defect except a new contract upon a valid consideration, or such conduct as by -misleading the insured to their prejudice, would operate as an estoppel. The case shows no features of this kind.

The objection that the subsequent insurance was not proved ¡has nothing to rest upon. The fact that more property was included in the Republic policy is immaterial. The deliberate statement of this policy in the proofs of loss dispensed with any other proof of it, and the rule that the proofs are no evidence in favor of the insured does not preclude them from operating as admissions.

Judgment reversed with costs, E(nd a new trial granted.


author: Graves, J.

text:
    Ramsay vs. Kittredge.
    tpiie statute provides that, “ If upon the trial of any cause the plaintiff's claim shall be reduced by set-off, or any other fact shall appear which will entitle either party to costs or to double costs, the Judge holding the court shall, upon the application of either party, either before or after verdict rendered, cause an entry to be made in the minutes of the court specifying that Buch fact appeared; and no evidence shall be received by any taxing officer of such matter other than a certified copy of Such minutes or the certificate of .tlio Judge who tried the cause.” Bdd, That the nature of this provision very clearly imported that in the order of proceedings the application for the entry, if not the entry itself, should he made before judgment and notafterit in order to apply to the judgment.
    Error to St. Clair Circuit.
   Opinion by

Graves, J.

Ramsay sued Kittredge in general assumpsit and, the ease was tried without a jury. The trial commenced at the May term of 1867, and was concluded at the January term of 1869., No special finding was made, but at the April term of 1869 judgment for the plaintiff was entered for damages, $96 35 and costs.' At the ensuing September term the record was amended by an entry in the case iu these terms : It appearing to the Court that there is an error in the entry of the judgment in this cause on the 23d of April, 1869, in so far as the said record purports to give costs to said plaintiff, it is hereby ordered that said entry be corrected so that the said defendant shall recover his costs and charges by him about his suit in that behalf expended, to be taxed. That the damages to said plaintiff shall be deducted from the amount of costs to be taxed by said defendant as aforesaid, and that said defendant do recover the residue of his costs and charge's, and that he have execution therefor."

The record having been so amended, the plaintiff, subsequently, and in January last, sued out this writ of error, and the error he alleges, is that costs were awarded to the defendant. But as the judgment upon its face is regular, and does not appear to be subject to the objection taken, the plaintiff in error relies upon another paper found in the return to support his assignment of error and impeach the judgment. That paper is omitted in the cause, and seems to have been made some time after the judgment. It is without date, and was evidently framed under section 5636 Compiled Laws. It. reads as follows : “ On the application of Messrs. Conger & Harris, plaintiff’s attorneys in the above entitled cause, I, James S. Dewey, Circuit Judge, who held the term of said court at which the above entitled cause was tried, and who rendered judgment in the same, hereby certify that upon the trial of said cause, the claim of the plaintiff as established exceeded the sum- of $200; and the same was reduced by set-off to the sum for which judgment was rendered, and I hereby direct, that, an entry that such fact appeared be made in the minutes of said court, of said trial.’’ The section supposed to authorize this paper is a part of the statute regulating the taxation of costs, and is as follows :

“ If upon the trial of any cause the plaintiff’s claim shall be reduced by set off, or any other fact shall appear which will entitle either party to costs or to double' costs, the Judge holding the court shall, upon the application of either party, either before Or after verdict rendered, cause an entry to be made in the minutes of the court specifying that such fact appeared; and no evidence shall be received by any taxing officer of such matter other than a certified copy of such minutes or the certificate of the Judge who tried the cause.” •

Held, That the nature of this provision very clearly imported that in the order of proceedings the application for the entry, if no t the entry itself, should be made before, judgment and not after it in order to apply to the judgment. It is'' the judgment which determines which party is to recover costs, and not the certificate, of the Judge; and the taxing officer, with or without the certificate, has no power to tax contrary to the judgment-. In- cases where the statute applies; the entry is needed to show which party is to recover costs, or double costs, in order that the judgment upon the facts contained in such entry may be put in proper form; and hence the entry which is to furnish the information for constructing the judgment ought to. precede and not follow it. The judgment being one regularly made, and entry or certificate framed on this- statute could have no influence on it

The terms of the statute also indicate that the application and entry consequent upon it should be made before judgment. The application is to be made before or after verdict to the Judge holding the Court, but' not after judgment. It was intended to allow the application to be made at any time between the close of the evidence, when the Judge would be possessed of the facts, and the time for-entering judgment, when the facts would be needed to fix the character of the judgment. As the application in this instance and the certificate founded upon it, were made after the judgment, the certificate is not legally adequate to impeach or affect the judgment or writ of error.

JSTo opinion was given on the power or duty of the Circuit Court to amend, either with or without an entry or certificate, when the costs have been wrongly awarded.

Judgment affirmed with costs.


author: Campbell, C. J

text:
    The People ex rel. the Detroit Fire and Marine Insurance Company vs. The Circuit Judge for the County of Saginaw.
    In construing the statute which provides that suits may be brought agaiust corporations in the same manner as agaiust individuals, and that process may be served on the presiding officer, the cashier, the secretary or the treasurer thereof; or if there be no such officer, or none can be found, such service’maj he made on such other officer or member of such corporation, or in such other manner as the court in which the suit is brought may direct, Held, That substituted service can only bo made 'in that county where the corporation is lequired or expected tohavethose persons present who have the immediate supervision ot its general office business, and where some ope may fairly be supposable to be ready at all times to respond for it.
    Mandamus.
   Opinion by

Campbell, C. J

—The Circuit Judge, upon affidavit of W. S. Tenant, attorney for John Dietrich, that the relator had no presiding officer, cashier, secretary or treasurer within the limits of th it county, directed service of process to be m ide upon one Edw.ird P. Allen, an agent of the company in that county.— Application's made for a mandamus to compel the ordei to be vacated. The relator is a Michigan- company, having its business in Detroit, where the officers reside.

The powér in controversy is claimed to result-from section 4835 of the Compiled Laws, which provides that suits may be brought against corporations in the same manner. as against individual®, and that process may be served' on the presiding officer, the cashier, the secretary or the treasurer thereof; or, if there be no such officer, or none can be found, such service may be made on sjieh other officer or member of such corporation or in such other manner as the court in which the suit is brought may direct.

The point to be decided was, whether a corporation could be sued in any county whatever, and substituted service be bad against it if its officers were not found there; or,' whether such substituted service is only lawful where the officers are not to be found in the eouaty where the corporatism is in law located. Whether service may lawfully be made elsewhere on one of the officers, is a question not before the Court.

Held, That the substituted service can only be made in that county whore the corporation is required or expected to have those persons present who have the immediate supervision of its general office business, and where some one may fairly be supposable to be ready at all times to respond for it. The principle is well settled that the residence of the corporation is where its chief business office is, and our statutes regarding the commencement of suit recognize the practice of serving process in the county in which at least one of the parties resides. Legitimate service could doubtless have been obtained in the county of Wayne, and the litigation could have been disposed of there.

Mandamus granted vacating the order of the Circuit Judge with costs against the plaintiff.


author: IIioby, J.

text:
    Thomas H. Redmond vs. James E. Stansbury.
    The holder, without indorsement, of a promissory note payable to .the order of the payee, may maintain an action thereon in his own name, but without prejudice to the owner’s right of set-off or equities existing before the notice of the transfer.

      Cueing upon a promtssoiy note. fUing it \\ ith tho Justice of the Peace at tho time of joining!®* sue, and producing it at the trial, is prima facie evidence of the plaintifTsownership of th®
    Error will not be presumed; to be considered it must affirmatively appear.

      Jackson Circuit,

      March, 1871

      C rtiorari lo Justice’s Court.
    Suit vras brought before J. A. Dyer, Esq., a Justice of the Pence, by the defendant in error, against the plaintiff in error, upon a promissory note,-date! November loth, 1871, signed by the Plaintiff in error, payable thirty days after date, to the order of the Ptansbury Oyster Co., at the First National Bank, Jackson, Michigan The declaration was the usual common counts, and tho note itself produced and filed with the Justice in the cause at the time of declaring. Defence, general issue and notice of set-off.
    The allegations of' error assigned in the case, are as follows:
    1. The Justice improperly received the hearsay evidence of John Sharp.
    2. The Justice improperly refused to non-suit the plaintiff upon the points taken by t'he defendant’s attorney. '
    3. The Justice improperly admitted the note as evidence of the indorsement, without proof of the hand writing of the endorser, and the agency of Goldsmith for the Stansbury Oyster Co., on the ownership of the note by the plaintiff.
    4. Thp Justice improperly allowed John Sharp to appear as the plaintiff’s attorney without further proof of his authority
    5. There was no proof to authorize a judgment for plaintiff, and the judgment so rendered by said Justice is contrary to law and the evidence given on the trial of the cause, and is otherwise defective, irregular and illegal.
    (7. C. Burt, for Plaintiff in Error.

      J. D. Coneiy, for Defendant in Error.
   By the Court,

IIioby, J.

The fourth assignment of error ii not well taken, as Mr. Sharp’s authority is sufficiently proved, and the defendant appeared and made noobjection of that kind before the Justice.

The second assignment of error is not based upon any action before the Justice so far as shown by the return, and besides, the practice of compulsory non-suit does not exist in this State.

The third assignment so far as it refers to the admission of the note as evidence of the hand-writing of the payee by L. Goldsmith, is not based on or supported by the return of the Justice. There is no statement that it was so received or that the handwriting or authority of Goldsmith were in any manner proven, or considered as proven by the Justice.

The case must be considered therefore in that respect as wholly wanting in proof of the endorsement of the note by payee therein.

The fifth assignment of error is in substance that the case made out before the Justice, was not such as authorized hitn to render ajudgment for the plaintiff. That the 'evidence is not sufficient to support the judgment.

Before considering this I will refer to the subject matter of the first assignment of error, to wit: That the Justice improperly received the hearsay evidence of John C. Sharp. The' statement of Mr. Sharp, upon mere information which he received in the case from the plaintiff, is certainly not legaL evidence in the case. The only portion of Mr. Sharp’s statement that can be considered as evidence,is the statement that he presented the note to the defendant, and his admission of its genuineness— that he was authorized to appear for the plaintiff — the amount of the note, and that he received the note from the plaintiff. This, with the production of the note itself and filing it under the statute must be considered as the only legal evidence in the case. Unless the judgment caí) be sustained upon this evidence, and without reference to‘the hearsay testimony, it must be reversed. It it can be, then the plaintiff was not injured by the hearsay testimony, and the judgment should be affirmed. G. L., Sec. 8881, page 1088.

How then does the case stand upon the merits ?

The note being filed with the Justice at the time of joining issue, as a part of the plaintiff’s declaration, and not denied by the defendant on oath, it was unnecessary for the plaintiff to prove its execution. It was substantially admitted

There was no evidence of its endorsement by the paye.e.— The plaintiff cannot therefore be regarded as an endorsee under the Idw merchant. He held the note, if at all, as an assignee of a chose in action, and the only evidence of the assignment to him of the note is his possession of it, and its production by him in pleading and at the trial.

It is claimed by counsel for defendant in error that an assignment of the note need not be in writing; that delivering for a proper consideration is'suflicient, and that possession of the note by the plaintiff and his production of it on the trial, is prima facie, evidence of such delivery, and that under the law of 1863, suit may be maintained in the name of the assignee.

That the assignment may be by delivery for a valuable consideration and without writing, is abundantly sustained by authority. 1 Parsons on Contracts, 197; Id. 192; 12 J. R., 346; 17 Id., 284; 19 Id., 95 and 342; Jones vs. Winter, 13 Mass., 305; Franklin B’k, vs. Raymond, 3 Wend., 69.

The decisions in the two last cases were both where prom: issory notes payable to the payee or order, were transferred by delivery merely, without endorsement. It was held that such delivery was a sufficient assignment to transfer the title'of the note to the holder, but that he acquired none of the peculiar rights of an endorser under the mercantile law. That he held the note subject to all equities of the maker against the payee and could not maintain a suit in his own name. In short, he held it with the same rights which would attach to the assignee of any other non negotioable chose in action, and no more.

Mr. Justice Parsons, delivering the opinion of the Court in 13 Mass., says : The tacts of the assignment may as well be .proved by witrieses as by the name of the payee on the back of the paper,when the person claiming to be assignee holds the paper and proves it was delivered to him in consideration of money or other valuable thing paid for it.”

In the 3d of Wendell, referred to, the decision was upon a promissory note payable to I^ailey or order. Bailey procured the Hoboken Bank to discount it and delivered it to the bank, but through accident it was neglected to be endorsed by him, and he died before its maturity. Marcy, J., in delivering the opinion of tbe Court, says, that lie,, (Bailey,) had thi refere parted with his imeiest. m )he note, and the bank had acquired what interest he possesses in >i. The holders stood inthe relation ot assignees of a chose in action, and net endorsees, and held the note subject to the equities existing between the original parties.”

The act of 1863 referred to, allows the assignee of a chose in action to maintain suit iu his own name, but still subject to all eqities existing between the original parties. 'Ihe only effect therefore of this statute is that the suit may be brought directly in the name ot the assignee and not necessarily in the name of the payee, for his use,'he right ot the maker as to any offset or other defence he may have againbt the payee bping unimpaired.

It is not correct therefoie as argued by counsel for plaintiff in error, that by the proceeding -•in this ease, the defendant (plaintiff in error) was prevented from making any defence he in ly h ive had against the original payee. No evidence ot such defence was offered, and consequently no ruhng was made by the Justice on that point It such evidence had been offered,it would have been the duty ot the Justice to receive it. The case cited in 18 Iowa Reports, page 143, Yonkers vs. Martin, where there is a similar statute allowing the assignee of a chose iu action to sue in his-own name, very fully sustains the position above taken.

The only remaining question is whether there should have been proof ot the actual transfer and delivery of the note to the plaintiff, for a valuable consideration paid, or whether the possession of the note by him and its production bn the trial, was sufficient pnma fade evidence of such assignment and transfer in the absence of any circumstance to cast suspicion upon his being a bona fide holder.

It will be found, I think, that those cases which place the rights of the assignee upon the fact of delivery for a proper consideration, do so with reference to the right of the maker to assert arid.maintain his equitable or legal defence against the assignor. lie will nót be debarred from making such defence simply on- the fact of the assignment, although he may be notified of it. His rights as against tbe payee will not be affected unless the transfer was tor a valuable consideration, so as actually to transfer to the assignee all the rights legal and equitable of the assignor. If. he has no defence as against the payee or is protected in his right to set up such defence, what interest has the maker in the question as to who shall hold the claim or be his creditor ?

His interests are in no manner affected. It is indifferent to him whether he pays or accounts to one or the other.- The cut y question nn.teru.l to him,'therefore, is irht tier in fa< t the note In s he n ¡r-nfeneil by thejayee. Itis wholly immaterial to him whether such transfer was for a consideration or without consideration, because if actually transferred by delivery or otherwise, he will be protected in paying it to the transferee or assignee, whatever the transaction may have been between the payee and the assignee.

The general rule is well established that possession of chattels is prima fuete evidence, of ownership..- Why should not the same rule apply to dioses in action ? Upon w hat principle can it be contended that possession of a lrorse or watch is evidence of ownership, that will not equally apply to a promissory note or other chose in action? It seems to me the reason of the rule is as strong in favor of the latter species of property as the former, and Chief Justice Parsons, in 13 Mass, lelerred to, says there is no reason why a contract may not be assigned by delivery and without writing as well as a personal chattel. If so, possession ot the one must be equally evidence of such delivery as the posseis'on of the other.

The case of King vs. Gottschalk et. al, 21 Iowa, 513, fully sustains this view. In that ease the plaintiff showed no right to the note, (it being payable to the order of another and not endorsed,) except simply possession and production on the trial, as in this yase, and the Court, Judge Dillon pronouncing the decision says: “Being in possession of the note, sueing upon and producing it upon the trial, this was prima facie evidence ot the plaintiffs ownership of the note,'and sufficient evidence if nothing further was shown, to justify a recovery upon it.”

This disposes of the objections iaised to the proceedings before the Justice in tiiis case. It shows that independently of the hearsay testimony of the witness, J. C. Sharp, and entirely excluding it from consideration, the judgment was not erroneous, and therefore the plaintiff in error was not and could not be injured by that evidence. If this were not so, it is difficult to see how advantage could be taken ot the improper evidence as the return of the Justice stands. It appears that after the hearsay evidence was taken, the defendant’s attorney objected, but there is no statement whether that objection was sustained or overruled, or whether that evidence was considered in deciding the case or not. It does not appear affirmatively, therefore, that any erroneous ruling was made upon that objection by the Justice. Error cannot be presumed; it must affirmatively appéar, to be considered as error.

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

[See Zeller vs. Harris, 1 Mich. Nisi Prius, 75.]


author: Campbell, Ch. J.

text:
    Worthington vs. Hanna.

      A has a chattel mortgage eeecated by B. The Sheriff levies upon the same to satisfy a judgment In favor of G against B and sells the same. In an action brought by A agaius t the Sheriff for the conversion. Held, That the righte of mortgagees can only be divested by payment or tender of payment of their whole debt. Every security holder has a right to seek his money out of his security without proceeding against his debtor s personal responsibility; and the legal value of every security is the means it will furuHh of obtaining satisfaction out of the property.
    "While the Court will not assume judicially to know what any foreign law is, there is no principle which will justify them in holding anything void under foreign law which is lawful here until the varianco is shown. To that extent it may be presumed that a conformity exists between our laws and foreign laws. The Court will make no presumption that a transaction valid under our laws is not valid elsewhere.
    "Where an appraisement is'made in pursuance of a statute under oath, in tho course of the proceedings under which the party himself has acted, it would be going too far to say that such a valuation would be entirely worthless as evidence against him.
    Error to St. Joseph Circuit.
   Opinion bp

Campbell, Ch. J.

Mrs. Hanna sued Worthington for having, as Sheriff, seized and sold eertaia chattels on process against Andrew Hanna, which had been mortgaged to her, and which were in the possession of the firm of MeDougall, Nicholas & Abbott, under a security of tho same date, which provided that they should take possession and sell goods to pay their own claim, and then turn over any surplus of goods or prooeeds to her as second mortgagee. The Sheriff seized the property iqjo his own possession under a writ of attachment, and sold it in parcels to different persons without making any provision for either of the mortgagees. The first questions arise upon the pleadings. The first count of the declaration was in trover ; but the parties seem to have supposed that trover would not lie in suoh a ease, and no evidence was offered under it. The question, therefore, is not befene the Court. The second count set out the rights of Mrs, Hanna under tho second mortgage, which was recited at length, stated the mortgage of MoDougall and others aeoordiug to its effeet and their possession un, der it, and then averred a seizure and conversion by sale to divers persona, whereby she was injured iu her estate and doprived of her sjeurity ou the goods, to her damage, $3,000, etQ, This declaration was not demurred to, but it was insisted that the declaration should have shown the insolvency of the mortgagors and averred that the mortgagees had no other claim.

Held, That the oause of grievance, if actionable at all, oould not have been set forth more clearly or specifically, and the objection is not well founded. This objection is based upon an idea that there is the same substantial difference between the damage done to a mortgagee in possession aud to a .mortgagee out of possession by the soizure and confiscation of the goods. Possession or present right of possession can make no difference in regard to the quantum pf damages within the extent of the security. The dootrine alleged would be equivalent to holding that uo person could have a legal right to complftiu of being deprived of a security unloss he could show the insolvency of his debtor; or, in other words, that any wrong-doer could, at his pleasure, compel the holder of a security against a solvent parly to look only to the-personal remedy and give up the security. This is too unreasonable a doctrine to be enter* tamed. In a ease like this our own statutes furnish a positive rule. Tho rights of mortgagees can only be divested by payment or tondor of payment of their whole debt. Every security ■ holder has a right to seek his money out of his security without proceeding, against his debtor’s personal responsibility; and the legal value of every security is the means it will furnish of obtaining satisfaction out of the property, The count was sufficient; and all testimony relating to the solvency or insolvency of the mortgagor was surplus-age.

It was also claimed that the mortgagee could not sue the Sheriff for the conversion, but should seek out the purchasers and recover the goods from them.

Held, That the statute does net. permit the Sheriff or the purchaser to take mortgaged property away from a mortgagee in possession and sell it in parcels.- It only allows the sale to he made “ subject to the lien of the mortgage or pledge existing thereon .lid it is only, upon payment or tender of payment, or performance, that the purchaser obtains aDy rights whatever as against the mortgagee. The right lawfully sold is merely the right of redemption, and this is not a'pportionable. When the Sheriff departed from his statutory duty and sold in parcels, he became a trespasser, and the sale was an unlawful conversion. The mortgagees were - not bound to follow the property unless'they chose.

It is also claimed that, inasmuch as this mortgage was given by a husband to secure a debt due to his wife, which she purchased in New York from another holdér, paying therefor o.ut of her personal estate derived from her own father, it cannot be assumed that the common law rale giving a husband all his wife’s personality has - been abolished in that-State, and that it must he assumed that the common law rnle still prevails there, and that the mortgage is therefore void.

Held, That while this Court cannot assume judicially to know what any foreign law is, there is no principle which will justify them in holding anything void under foreign law which is lawful here.until the variance is shown To that extent it may be presumed that a conformity' exists between our laws and foreign laws. This Count will make no presumption that a transaction valid under our laws is not valid elsewhere.

It is also alleged as error that the Oouvt refused to instruct the jury to disregard the appraisement made under the attachment'proceedings in estimating the value of the goods. Plaintiff in error was allowed to introduce testimony on this subject, and the appraisal was left to the jury for what it was worth, and not as in any way conclusive.

Held, That there was no objection to this. Where an appraisal is made in pursuance of a statute,’ under oath, in the course of the proceedings under which the party .has himself acted, and he himself selected the appraisers, it would be going too far to say that, such a valuation is entirely, worthless as evidence against him.— There is nothing in the record which affects the correctness of the judgment, which is affirmed with costs.


text:
    Strang et al. vs. The People.
    Error to Hillsdale Circuit.
   Opinion by

Cooley, J.

Defendant and George II. Williamson were jointly informed against for the rape of Louisa Towers;— Prom the testimony it seems that the girl had resided in the family of defendant. Shp testified to this fact on the trial, and also to the fact that he was her uncle by marriage. The admission of this 1 evidence was among the errors charged, which were exceedingly numerous, but the Court .held that it was properly received.

She stated that Williamson came to her mother’s house June 5, 1870, and got her to accompany him in a buggy to meeting, as he said. About half a mile from the house they met defendant, who took Williamson’s place in the buggy, against the girl’s remonstrances, and drove it to a piece of woods. There‘he made her get out, .and by.threats succeeded in violating her person. It was held that what he said to her immediately after the outrage was material testimony, and it divulged that he compelled her to submit to the embraces of Williamson also, who-soon came up.

Defendant, in threatening witness', told her that, if she did not submit he would take her where she would not get back home again. The witness also testified that she was afraid of the defendant, because it ran in the family to kill folks, and she had seen him abuse his wife Held, That this evidence -was properly received. The girl it appears was only 16 years of age.

A witness for the defence testified that'at a previous time to that of the alleged rape, he had had sexual intercourse with the girl, but after testifying to that fact he was not allowed to go into' other- particulars tending to throw suspicion on her chastity: Iletd, That this was correct, the material fact- having been proved.

The charges of the Court were held correct-, and the iudictment, charging defendant and Williamson jointly with the commission of rape, was considered good, as both the parties were principals.

Conviction affirmed.


text:
    Miller et al. vs. Morse et al.

    CompxHxnantswerosucclin a court of law and judgment was rendered against them; a new trial was denied, and execution issued. Bill filed to restrain the sale of property on the execution and judgment set aside. Held, That the case was probably one in which all the claims of complainants have been urged in a court of law, and as no showing was mado hero that any stronger case could be made again, no ground for the interference of a court of equity existed.
    Appeal from Kent, Circuit.
   Opinion by

Cooley, J.

Complainants set out a contract between themselves and the defendants, Morse and another, for the delivery by the latter to the former of a quantity of stone; aver that delay occurred on the part of Morse and Brooks to perform, and that on April 10, 1868, they requested complainants to consent to an abandonment of the contract, which consent was given, and the same was cancelled and abandoned' practically, though the paper writings were not destroyed — That notwithstanding such arrangement, Morse and Brooks, combining and confederating with one Sholes, in June, 1868 brought action on the contract against complainants, in the Circuit Court for the county of Kent, for pretended damages resulting from a pretended breach of it. That the case came to trial, and the defendants wickedly and falsely swore that the contract had never been abandoned. That the plaintiffs recovered judgment for $7.57 69 and costs, upon which an execution was issued and handed to the Sheriff, who has levied upon complainant’s property. That a new trial has been applied for and refused, so that the complainants have now no relief except in a court of equity. They prayed for an injunction to- restrain the selling of their property under the execution that the judgment might be set aside, and for the usual other relief. Defendants put in a general demurrer and the bill was dismissed.

Held, That the bill was properly dismissed!* It did not appear from the record that .complainants were present when defendant testified that the contract was still in force, or that they have taken any .measures to show that it was cancelled, though they must have been apprised of the claim that it was of validity. The case was probably one in which all the claims of complainants have been urged in a court of law, and as no showing was made here that any stronger case could be made again, no ground for the interference of a court of equity' existed.

Decree affirmed.


author: Campbell, C. J.

text:
    Near vs. Mitchell.
    A sued B. B pleaded the “general issue” and gave notice that garnishee proceedings were pending against him by C as debtor of plaintiff. C, however failed in his suit against A, whereupon A demanded judgment against B.' The Circuit Judge held that the suit was prematurely brought and could not be maintained when it was shown that a garnishee proceeding had been commenced against the defendant as plaintifl’s debtor already. Held, That in this decision the Circuit Judge erred. The proper course in this case was for defendant to plead in abatement and not in bar, if he would take advantage of the pendency of the other
    Error to Ingham Circuit.
   Opinion by

Campbell, C. J.

This was an action of assumpsit. Defendant pleaded the general issue and gave notice that he would show^hat at the time the suit was commenced, garnishee proceedings were pending against him as debtor oí the plaintiff, in a suit brought by one Hubert. The case was. sent to a referee, who reported that defendant was indebted to the plaintiff in the sum of $255 75 and that when the suit was commenced, garnishee proceedings were pending as set lorth in the notice, but thht they had since been determined by the rendition of judgVnent'against Hubert in the principal case. On the coming in of the report defendant moved for judgment upon it.

The Circuit Judge held that the suit was prematurely brought and could not be maintained when it was shown that a garnishee proceeding had been commenced against the defendant as plaintiff’s debtor already. Held, That in this decision the Circuit Judge erred. The proper course in the case was for defendant to' plead in abatement, not in bar, if he would take advantage of the pendency of the other suit. The statute does not change this, but simply suspends the creditor’s right to recover' until the garnishee proceeding shall be determined.

The judgment, together with all proceedings subsequent to the report of the referee, was reversed and the cause was remanded for further proceedings, with the costs of the Supreme Court.


text:
    The People ex rel. Crawford vs. Molitor.
    Tilt? statute provides that “ The persons having received the greatest number of votes given for any office at such election, shall be deemed and declai ed duly elected.’* It does not under any circumstances allow a minority candidate to be deemed elected, whether the person for whom the majority seem to have voted can or cannot bo installed.

      Quo Warranto

   Opinion by

Campbell, C. J

This was a proceeding by quo vmrranto to enquire into the respondent’s tille to the office of Supervisor of the township of Rogers in Alpena .County!_ The respondent’s plea sets up that 150 votes were cast at the election, of which relator ljad 2, respondent 69, and 72 ballots were cast for “ L C. Crawford,” whereby he declared himself elected.

A statement of facts was agreed upon and used at the hearing, hut it appears that it did not have the signature of the Attorney General. It wag held in People vs. Pratt, 15 Mich., 184, that the Attorney General was the only person whose stipulation could be acted upon so as to affect the People.

The Court, however, can consider any admissions in the plea as binding on the respondent, and the plea was deemed an admission that respondent had no title, because it shows affirmatively that he did not receive the greatest number of votes cast. The statute provides that “ The persons having received the greatest number of votes given for any office at such election, shall be deemed and declared duly elected.” It does not under any circumstances allow a minority candidate to be deemed elected, whether the person for whom the majority seem to hav.e voted can or cannot be installed. Whether in this case there is any stteh person as L. C. Crawford does not change the state of the canvass, or make 69 a larger number thau 72.

Judgment of ouster must go against .the defendant with costs to the People. Defendant cannot, however, by his statements or admissions, establish any rights in others. His default or his admissions may preclude himself, but can go no further. The title of a relator can only be adjudicated when upon the facts lawfully established in the cause his right necessarily appears from the finding. It was not part of the principal issue in this cause, and disproving respondent’s' right does not establish his. As the plea raised no issue it was thought questionable whether proofs could be taken under it at all in regard to the rights of the relator, when'there is nothing which respondent could try. But, without deciding this, the Court could not act upon the agreed case, and could not give judgment except upon respondent’s title.


author: Grier. J.

text:
    Patrick Duhig vs. Nelson Lipscomb.
    To give the Circuit Court jurisdiction in case of appeal from a Justice of Ihtf Peace, theru must have bctsn a final judgment rendered by such Justice of the Penco. '
    An order by the Justice “that plaintiff retain the property by paying the charges on them, and that defendant pay the costs of suit,” is not a Jinal judgment

      Jusco Circuit,

      June, 1871.

      \V. T. Cummings and Taylor <0 Wheeler, for A ppelloe.

      John Hurst, for Appellant.
    -Motion by appellee to dismiss appeal.
   By the Court,

Grier. J.

This cause was appealed by defendant from a Justice of the Peace. The action was replevin for a stove and other personal property. The plea, so far as can be ascertained, from the return, set up a lien upon the property claimed, for the amount of freight earned in carrying the property, and for the warehouse charges.

The only judgment rendered by tlic J usticc, was as follows :

" After hearing the evidence in the above cause, it is ordered by the Justice, that .the plaintiff retain the stove and stove pipe by paying the charges on them, and defendant pays the cost of the suit taxed at three dollars and ten cents.”

We may infer that the Justice intended to find that the. defendant had a lien upon the goods, but he has not found the amount of the lien.

No order or adjudication of a Court can be said to be a final judgment if it leaves anything necessary to the execution, of the judgment unascertained.

The order in this case is conditional.

The plaintiff may retain the property by paying the charges on it. But how much are the charges on it 1 The amount of the charges the judgment does not fix in terms, nor give any standard by which they can be ascertained. A disputed point remains unsettled.

A" Justice’s Court has no power,or process to enforce or execute such a judgment.

Again, if the defendant had a lien for bis charges, he does not unlawfully detain the property, and the judgment could not lawfully be-for the plaintiff, neither could the defendant be required to pay the costs.

The judgment should have been in form for the defendant for the amount of his lien and costs. But instead of this the Justice makes a decree entiiely inconsistent with itself, that the plaintiff retain the property by paying the charges on them, and the defendant pay the costs, whether bis charges be paid or not.

In other words, be finds in substance that the writ was wrongfully sued out, that defendant was lawfully justified in retaining possession of the property, but that he should be mulcted in costs for setting up a legal defence.

This is not a mere erroneous judgment, but it is no judgment.— It is only where final judgment has been rendered that a cause can be appealed, and without such judgment the Circuit Court does not obtain jurisdiction.

The appeal must be dismissed with costs.


author: Brown, J.

text:
    Horace Flanders vs. Henry Chamberlain.
    Éburta of equity will not entertain a bill to compel offsets of unconnected, independent debts. Relief, by way of compelling set-offs, will only bo granted where it appears that tbe accounts or claims of the parties are mutual and dependent.

      Cass Circuit;

    June, 1871.

      The bill in this cause was filed December 2d, 1868. The complainant alleges, that on the 29th day of February, 1868, he was employed to farm the lands of the defendant; that to enable bim to carry on the farm, the defendant sold him certain personal property, and became surety for him by signing notes given to other persons for personal property bought of them; that the amount of both liabilities so created was about'$850 00; that to secure the defendant-the complainant executed to the defendant a chattel mortgage upon certain personal property. The complainant further alleges that the notes signed by the defendant as surety, have been paid by him ; that the debts due the defendant, were as follows : One promissory note of date December, 1866, for $110-, due October 1st, 1868, with interest at ten per cent — the consideration thereupon being a certain sorrel horse, mentioned in the mortgage’ referred to. • One noto for $220 50, due, without interest, December 1st, 1868. and one note for $107 00, dated February, 1868, and due, without interest, January 1st, 1869, the consideration for whieh, was the wagon described in said mortgage. The complainant further alleges that on the 11th of November, 1868, there was due on the notes to the defendant, about the sum of $446 66; that on the same day the defendant was indebted to him upon an award, dated November 5th, ■ 1868, $365 22, payable on the said 10th day of November j that to satisfy the chattel mortgage by the payment of said three notes, he, on the said 10th day of November, tendered the defendant the sum of $365 22, by offering to offset the same to that amount on complainant’s indebtedness to him, and the further sum of $81 44, the balance then due him on said mortgage, by offering to him the sum of $90 00 in legal tender notes, requesting him to take balance due him out of said sum, which, he alleges, the dnfendant refused to accept, and that he thereupon sold to one Conden, the wagon mentioned in the mortgage. Nevertheless, the complainant claims that the defendant conspired with one Huntley, and one Burdick, and that they, on the 20th of November, 1868, took and carried away the wagou from the possession of said Conden, and one gray horse, one sorrel horse and one sot of harness, some of the property described in said chattel mortgage, and secreted the same; that on the 28th of November, 1868, Huntley gave the complainant notice of the sale of the property, a copy of whieh is annexed to the bill.— The bill further sets forth that on the 30th of November, 1808, the defendant took possession of forty fat hogs, (parcel of fifty hogs mentioned and included in said mortgage,) by virtue of said mortgage, and that he held them with the intent of selling or otherwise disposing of them : that the value of the property taken by defendant was $815 00. The complainant alleges that the horses, harness, wagon, and his undivided interest in the forty fdt hogs, were then free and clear from the lien of the chattel mortgage, and that the taking them from the town of Jefferson, whore they then were, to-the township of Howard, and therp offering them for sale, was contrary to the terms of' the mortgage, and was done for the purpose of oppressing and defrauding the complainant. The complainant prays that the Court decree that the lien of the mortgage upon the property so taken be declared satisfied and discharged, and that the defendant be’ordered to return the property, and that he be enjoined from selling or disposing of the horses’, harness, wagon, and the complainant’s undivided half interest in the forty fat hogs. An injunction was thereupon granted, but on the coming in of the answer was dissolved.
    The answer states the indebtedness of the complainant, admits the taking of the property by virtue of the mortgage, but denies that he was-indebted to the complainant on an award to the amount of $365 22, on the 10th day of November, 1868. The answer further states that the defendant is worth at least ten.thousand dollars.

      Daniel Blackman and Edward Bacon; for' complainant,
    in'support of the position that this is a proper case for the exercise .of equity jurisdiction, say:
    “There is no doubt that relief exclusively equitable is prayed for by the bill, to wit: the extinguishment or cancellation of the mortgage, Cancelling writings, is that from ¡which Chancery derived its name.
    “ The tender was after default in the mortgage, when by the cases cited on the defence, the only relief was in equity. See cases cited by defendant’s counsel, Tannahill vs. Tattle, 3 Gibbs, p. 110; Van Brunt vs. Wakelec, 11 Mich. Rep., 177; Story's Eq. Pr., Sec. 1031.
    “ The whole' nature of the case is such as shows oppression equal to fraud, from which relief is sought.
    “ There is no demurrer or claim of advantage equal to demurrer, and although it should be admitted that the remedy at law is adequate and plain, the defendant is rightly subject to the decree of this Court. This is plainly asserted by the case cited by the defendant’s counsel—Bennet vs. Nichols, 12 Mich., p. 22. See also Underhill vs. Van Cortlandt, 2 John. Ch. R., 339; Le Roy vs. Platt, 4 Paige, 81; Livingston vs. Livingston, 4 John. Ch. R., p. 290.
    “ It is competent for this Court where it has acquired jurisdiction for the purpose of granting an injunction, to retain the suit for the purpose of giving damages to the complainant. Brown vs. Gardner, Harrington Ch. R., p. 291. ( The Court acquiring jurisdiction for one object, may, even though the principal relief be refused, retain jurisdiction to give damages under the general prayer; , This is expressly decided in Carrol vs. Reed, Walk. Ch. Rep., (Mich.) p. 381.
    “ The Court having obtained jurisdiction for one purpose may retain it to give full relief and might decree a return of the property mentioned iu the chattel mortgage to the complainant’s posses: sion. Expressly decided in Whipple vs. Ferroo et. al., 3 Gibbs, 437, and if possession could be decreed or damages, as aforesaid, of course, the property being- long ago marketed, the defendant can he decreed to' account, no prayer for special relief being- necessary in any ease. 1 Barb. Ch. Practice, p. 37.
    “ The tender was sufficient in equity, if under all theeircumstanof the case the defendant ought to have accepted of it, or failed to base his alleged refusal of acceptance on any valid reason. Bellinger vs. Kitts, 6 Barb. Sup. C. Rep., 273; Stephenson vs. Maxwell, 2 Coms., 415.”
    “In 12 Mich., 45, we have a case where complainant acquired his rights after a foreclosure decree, and filed his bill to set off pay ments against. If we substitute forfeiture for decree,our and this ease is strikingly similar. It was the legal duty of Griggs to have paid the inoumbrauces. He did not do it; complainant did. See p. 51, at bottom.
    “ The grounds for jurisdiction were two : (p. 52.)
    “ Insolvency, which alone is inadequate. Hale vs. Holmes, 8 Mich., 37.
    “ 2. Inadequacy of the legal remedy. We have no legal remedy.

      “In Lockwood vs. Beckwith, 6 Mich, 168, and Brackett vs. Sears, 15 Mich., 244, we have the principles of equitable set-off.— From these cases it appears :
    “ 1. That when the Court has jurisdiction of the case it will enforce a mere legal set-off as a foreclosure case. See 10 Mich, 117. The incumbrances were not set off, because not paid. In 12 Mich., 45, they had been paid, thus showing, they would have been a good set-oh if paid in the first case.
    •‘No equitable grounds are required where the Court for other reasons have acquired jurisdiction.
    “ 2 Where the equity attaches to the demand, and not to the person. 6 Mich., 175; where there is mutual credit, as whc_ Flanders owed Chamberlain and worked for him without asking payment, and without an offer by C. of payment. F. swears he supposed he was paying off the- debt by his work. C. does not deny there was acknowledge of this credit being the means of discharging the debt on the notes. He swears there was no confract to set off.
    “In 15 Mich., it is said from the nature of the dealings, and the course of their accounts, it was evidently considered by the parties the accounts were dependent.

    “ It may be said these are cases of defenses. The case in 12 Mich., was of a bill_filed. That which is a good equitable defense is good ground for a bill generally.
    The reason why a bill for a mere legal set off is not sustainable, is.that there is an adequate and full remedy in a suit at law. Plaintiff can sue or wait till he is sued. But against a sale or chattel mortgage there is no such remedy.”
    Franklin Muzzy and H. II. Coolidge & Son, for the defendant, insist:
    “ 1. This is not a bill to redeem. The essentials ofi such a bill are wholly wanting. Beek vs. Frost, 18 John. R., pages 544, 559, 570.
    “It does not pretend to be a bill to redeem, nor of any such nature. It avers that by the tender, Chamberlain’s lien under the mortgage was destroyed. He asks the Court to so say and to order the return of the property.

      “ 2. The bill makes out no case of equitable jurisdiction.
    “ The bill shows there had been a forfeiture in the payment of the $110 note. This note was due October 1st, 1868. The tender was made November 10th,. 1868, and Chamberlain had good right to reduce the property to possession.
    “ The complainant shows by his hill that he had a perfect legal remedy. If by the tender the lien was destroyed, the property became Flanders’. There was a perfect remedy by replevin or trover.
    “ The statutes of set-off were made to give defendants the privilege of setting off their claims against the plaintiff’s claims. But here the complainant seeks to compel the defendant to set off, and this he does without showing the danger of any loss, any irreparable mischief or injury. He does not aver that the defendant is insolvent.

      “ Chamberlain’s claim is disputed. The liability of Chamberlain on the award is uncertain. A court of law shQuld settle that question. If the award is valid, then Flanders’ remedy is complete and adequate at law.
    “ In a suit at law,Chamberlain would be under no obligations to set off his claims against it. How can this Court compel him to doit?
    “ Courts of equity do not take jurisdiction to compel offsets of unconnected debts, generally. There must be some special grounds for relief, such as mutual credits on the faith of the debts. Dale vs. Irwin’s Ex’s, 2 How. U. S., 146.
    “ No such mutual Credits are alleged in the bill. There is no such pretence there set out. There is nothing peculiar about it.— It is a naked claim on the one part and on the other.
    “Where there aré mutual demands, a court of equity will sometimes interpose to set off one demand against the other; but if the demand sought to be set off is not of a nature to give a court of equity jurisdiction, there must be some connection between the demands to justify the jurisdiction. Pierson vs. Mieux, 3 A. K. Marsh, 933.
    “ Neither of the demands in this case are of such a nature as to give the Court jurisdiction. One is of simple promissory notes— the other is an award.
    “ Before the alleged tender,Chamberlain had become the absolute owner of the mortgaged property. Patchen vs. Price, 12 Wend., 61; Brown vs. Bennett, 8 John., 96; 40 Barbour, 179; Thurber vs. Jewett, 3 Gibbs, 298.

      "Van Brunt vs. Baker, 11 Mich. 177. does not change the doctrine.”
   By the. Court,

Brown, J.

The Churl in delivering its opinion ón.the motion to dissolve the injunction, of,signed as reasons why the motion should be granted :

1. That the complainant covenanted in the mortgage to pay the debt mentioned therein.. The law implies that it is to be paid in money, and this was the plain intention of the parties.

2. That though in suits which arc actually pending in a court of equity the defendant may offset a claim or demand, yet where persons have mutual demands or claims against each other, and one refuse to accept a tender of offset, equity will not interfere to enforce such tender and demand of offset.

If these views of the case are correct, it is clear that the bill should be dismissed, for there is nothing in the proofs to' take the case out of and beyond the operation of tlic rules of equity indicated by the Court.

I shall therefore consider, first, the views of the Court as announced in the decision upon the demurrer.

By the provisions of § 3480, G. L., it is provided that in suits in equity “ for the payment or recovery of money, set-offs shall be allowed in the same manner and with the like effect as in actions at law.”

The complainant insists that the object of the bill is “ to substitute for the legal contract, the mortgage, or true state of affairs between the partieswhile the defendant insists that the bill seeks to “ set off one legal debt against another legal debt,” and that a court of equity cannot be properly called upon for this purpose.

The case of D. & M. R. R. Co. vs. Gregg, 12 Mich., 45, is claimed by the • defendant to be so&ewhat analogous to the case at bar. In that-case the complainant had purchased real estate and gave back a mortgage to secure the purchase money. The deed contained covenants against incumbrances. At the time of the conveyance there were two mortgages upon the premises. Proceedings were instituted to foreclose the mortgage given by the railroad company. The company, in view of the covenants in their deed, sought to have the amounts of the former mortgages deducted from their indebtedness. This claim was disallowed, and a decree entered against the company. After the entry ot this decree the company paid off the prior mortgages, and then filed a bill to have the sums so paid, set off and deducted from the amount of the decree. The Court entertained the bill and granted the relief prayed for. It is true that it appeared in this case that the grantor was insolvent, which, under the circumstances, would be ground for the interference of equity; but an examination of the case shows that the Court did not put it upon that ground, but only referred to the fact of insolvency as.an additional reason for the exorcise of equity jurisdiction. The ground for the decision was, simply, that 'the railroad company might indemnify itself out of the purchase money it was still owing, through the intervention of equity, instead cf bringing a suit at law against the grantor on his covenant against incumbrances. The mortgages were a lien upon the land, and if not paid would, by foreclosure, operate to divest the railroad company of title, and take from it a title which the grantor had covenanted to defend. The agreement of the parties was, that the grantee should have an unincumbered title. To aid in carrying out this agreemeut, a court of equity might properly exercise jurisdiction. If no conveyance had been made, but simply a-contract to convey, equity would compel a specific performance of the contract. As equity will interpose' to enforce agreements, so it will give relief where a party, to protect his own rights, does that which another in good conscience was bound to do for him.

Where a party executes an ordinary warranty deed of lands and takes a mortgage back, to secure some portion of the purchase money, the covenants in the deed are, in one sense, the consideration for the money paid, and for the mortgage and accompanying obligations. .Hence if it turns out that there is a prior incumbrance on the land, and the purchaser pays the same, the consideration as between grantor and grantee is affected to the extent of such incumbrance. To illustrate : The value of the premises, free from all incumbrance is one thousand dollars. Upon the representations of the grantor that the premises were unincumbered, the grantee undertakes to pay therefor one thousand dollars. It subsequently appears that there was an incumbrance of five hundred dollars upon the premises. It is the business of the grantor to procure a discharge of this incumbrance. If he does not, there is, to that extent, a failure of consideration as between him and hie grantee, and if the grantee is put to expense on that account, it is quite clear that when the grantor seeks to recover upon his mortgage, a court of equity would say, “ You procured this mortgage upon certain representations. Those representations were not true. It has cost the mortgagor five hundred dollars to procure such an interest as you covenanted to convey to him. You -shall now make him good by endorsing upon your decree that sum.”

The reason why, in the case in 12 Michigan, the complainant was allowed to file its bill to procure a set-off against the decree, was, that it was not, until then, in a condition to insist upon sueh set-off, not having paid off the prior mortgages until after the entry of the decree referred to. It was, as I infer from the language of the second paragraph, at page 46, of that case, upon a showing of these facts by petition, that an order was entered permitting the co.mplainaut.who had, upon the proceeding to foreclose its mortgage.endeavored to have the prior mortgage set off and deducted from its mortgage, to file its bill.

In the case at bar, I am unable to discover any relation, connection or dependence between the accounts and claims of the parties. In the absence of such relation or dependence, I am at a loss to'perceive how a court ot equity can be called upon to interfere. u Courts of equity do not take jurisdiction to compel offsets of unconnected debts ” The bill does not allege that the debts and credits were mutual and dependent, nor does the proof show sueh to be the case. With this view, it is unnecessary to consider the othe^ questions involved.

Let an order be entered dismissing the bill.


author: Campbell, C J.

text:
    Sanford vs. The Chicago & Lake Shore Railroad Company.
    Where ajtiry is called to determine the necessity for taking lands for arailroadrand fcofiíx and determino the^compensation therefor the verdict must be unanimous in favor'of thr petition, or no rights in such lands can be acquired thereunder. '
    Requisites of petition for condemation oi lands for railroads, considered.
    Where the lands sought to bo appropriated consist of a atrip running through several distinct parcels, the ñuding of thejury should indicate the damages tb each separate and distinct parcel.
    Appeal from Berrien Circuit.
   Opinion by

Campbell, C J.

The proceedings appealed from were taken undev the General Railroad Law to coDdenm certain lands for a right of way. The appellant demanded a jury, and the verdict was rendered and signed by eight out of twelve. The clause in the constitution under which the jury was demanded declares that • when, except to- be made by the State, the compensation to be made when property is taken, shall be ascertained by a jury of twelve freeholders residing in the vicinity of said property, or by not less than three commissioners a] pointed by a court of record as shall be prescribed by law.- The section of the law referring to the powers of commissioners seems to contemplate that a majority of them may detérmine the compensation. It also declares that the jury shall proceed to determine the necessity of takingand the compensation in the same manner and with like effect as is provided in this section in the case of commissioners, but they shall all be present and act together during the proceedings. It is claimed that it the jury are all present and acting, the analogy to the functions of commissioners renders the verdict of a jury valid.

Held, That no change had been made in the requisite of an unanimous verdict. Juries of inquest, were well known to the common law, and unlike petit juries they might consist of 12 men, or sometimes of more, but their verdicts were always required to be unanimous. It is doubtful whether it was ever supposed that a verdict of jurymen in any proceeding would be valid if not unanimous, Under, our whole System of railroad charters, previous to our present Constitution, the juries selected to fix damages have been styled juries of inquest. They were- neither- called nor treated as mere appraisers. Our Constitution now requires 12 freeholdérs, and its provisions are more stringent than in New York. It will not permit the jury, so specifically provided for, to be changed 'into a mere board of appraisers or to be treated as anything but a jury of inquest. The verdict in this case was therefore a nullity..

The petition was objected to as insufficient, because instead of declaring it to be the intention of the company in good faith to construct and' finish a railroad from and to-the place named in its articles of association, it avers such an intention only between certain points which are named, including thereby' Division 2 of f.he projected road. The section under which the petition was filed expressly requires the former averment. But under an amendatory statute of 18Ü7 companies Were, under certain circumstance*, authoraed to designate a division of not less than 15 consecutive miles or construction, with full power and authority to construct, operate and maintain a railroad upon the division thus designated. The Court hold that when the company has complied with the statute and designated such a division, under circumstances authorizing it an intention confined by terms to that part of the road would be sufficient, and the provisions of the section prescribing the contents of the petition may be modified according to the amendatory a ct, inasmuch as under the latter no forfeiture arises from a failure to build other parts of the road. But the petition must thus be one thing or the other, and if it does not contain a compliance with the original section, it should aver such facts as to bring it within the amendment. It does not appear that there was any authority for setting apart Division No. 2, nor that it is a division of not less than 15 consecutive miles, all of which should be made to appear 'in some way.

It was also objected that the lands proposed to be taken were not specifically described as they should be, but are set forth as two continuous sections, not showing in which portions the various per. sons described as the owners are interested. This objection was considered with another that grew out of it; that the damages arc uot apportioned, but the value of the entire land taken is given in one sum of $2,000. It was held that the description should have gone more into detail than it jias in this case. Here it contains little more than a general description of the central line of the road and of the location of the way by reference to it, giving no information as to how smaller parcels may be affected although streets are evidently crossed and a village is-entered. By the statute, the fact of inability to acquire title amicably is made a, jurisdictional fact and might be controverted.

A verdict giving a round sum as damages for a continuous strip of land crossing several parcels, does not accomplish anything whatever concerning the rights of the several owners. The land may be different in quality and value; parts may be improved aud parts unimproved ) smairiots may be ruined and larger ones may be damaged but a trifle. Each party interested is entitled to have a fiud ing upon his own damages and the compensation to be made for it.

It is evidently expected under the statute, that when any person demands a jury, they will be able from the petition itself to understand what property is to be the subject of their investigation and what necessity is claimed to exist- for taking it. The necessity is not'thc same in all cases. The petition in this case undertook to follow the language of the statute so literally as to prevent the several interests from appearing with any degree of certainty. And the result was that the verdict following the same ambiguous course, has made no finding-at all on the rights of the party appealing.

The whole.proceedings, so far as- they concern the appellant, are quashed, and,if the company desire to obtain a condemnation of his lands they must commence new ones. He is entitled to all the costs.


author: Brown J.

text:
    Jasper N. Dodge vs. Edwin Corbin.
    No Issue roll is required in certiorari,and hence no fee can be taxed for making one.
    The plaintiif In error, in certiorari cases, is ontitled to an attorney fee of $15, in case the judgment is reversed.
    Bub. 6, of. Sec. 1, Act 28, 8. ¿.1869, has no application to certiorari cases.

      Kalamazoo Circuit,

      May, 1871.

      R. F. Mill, for Appellant.

      H. C. Briggs, for Appellee.
   By the Court.,

Brown J.

This is an appeal from the determination of the Clerk, in the taxation of costs.

The appellant is plaintiff in error, and brought the original cause into this Court, upon certiorari, from Justice’s Court.

The judgment of the Court below was reversed, whereupon plaintiff in error presented to the Clerk, for allowance and taxation, the following

Bill op Costs.
Attorney Fee: For proceedings before trial..........$10 00
After notice and before trial............ 5 00
Trial of issue of law (certiorari,) — judgment reversed....................... . 15 00
County Fee..... — ............................... 2 00
Clerk’s fee............................................... 5 31
Commissioner’s fee on allowing certiorari............. .. 2 00
Issue Roll, 75 folios,at 10 cents.per folio........... 7 50
Witness fees on trial in Court belo.w: Jame's De Abram, 2 days and 22 miles travel 2 32
Samuel C. Cavenaugh 4 days and 40 ‘‘ “ 4 40
Justices fees, as taxed in Court below.................. 3 90
Constable’s fees in Court below...................... 35
Affidavit to Fee Bill................................. 25
Taxation of costs....................................... 25
Total, $58 28

The appellee (defendant in error) objected to the item charged for issue roll, to the costs in Justice’s Court in excess of $7 34, and to the taxation of an attorney’s fee exceeding $15.

Rule 97 provides that11 the party having the affirmative of the issue, and bringing the case to trial or hearing, shall prepare an issue roll containing copy of the pleadings and any notice of set off or of special matter of defence which may have been given under the general issue, and such roll shall be used on the trial or hearing instead of the original files in the cause, and such original files shall not be removed from the Clerk’s office to be used on such trial or hearing without the special order oí the Court.”

Rule 98 provides that if the party required to'prepare such roll shall recover costs in the suit, he shall be entitled to tax as a part thereof, 10 cents for' each folio of 100 words contained therein.

The issue roll referred to, is to contain “ a copy of the pleadings, and any notice of set oft' or of special matter of defence which may have been given under the general issue.” The plaintiff in error claims that the issue roll in this case consists of his affidavit with assignments of error and the Justice’s return. The simple statement of the claim in connection with the language of the rule, would seem sufficient to justify the conclusion arrived at by the Clerk, that the claim should be rejected. The plaintifF in error was compelled to make his affidavit in order to procure his writ. The Justice made his ret,urn and the hearing was had upon the original papers.

Paragraph 8880, O. L., referring to the Justice’s return in such cases,- provides “that where such return shall be so filed with the Clerk, the cause may be brought on to argument, at any term of the Court thereafter, without any assignment and joinder in error, unless there be an allegation of error in fact,- and without furnishing any other copy or copies of.the affidavit, certiorari and return to the Court, or the opposite party than those filed with the Clerk.”

The costs in the Court below, $10 99, are admitted to be excessive, and the Clerk taxed the same at $7 34v

Subdivision 5, of section 1, of act number 28, Session Xaws of 1869, provides that the prevailing party shall recover his costs for prciceedings before notice of trial, in “ all other civil actions at law,” (i. e. those not otherwise provided for,) $10, and for all subsequent proceedings before trial, $5, and it is under this provision that the plaintiff in error claims the right to have taxed the first two items in his bill.

We understand an action at law to be the legal demand of one’s rights, or the form given by law for the recovery of that which is due. The proceeding by certiorari is designed to corcect errors in the adjudication or deterimnation of the matters' in controversy between the parties, and is unlike ordinary actions at law, in that by it questions of fact are not determined, but the law is applied to the facts exhibited by the record. It would thus seem that the 5th subdivision of section 1, could not have been intended to apply to eases of certiorari That it was not intended is evi'dent by reference to,the 10th subdivision of the same section, which provides that m alL eases of certiorari to a Circuit Court, the plaintiff in error on reversal of the judgment shall recover ?15 00. This must be deemed conclusive, and the first two items in appellant’s bill should be stricken out.

The Clerk commited no error, and his decision should be affirmed.


author: Higby, J.

text:
    The Detroit, Hillsdale & Indiana R. R. Co. vs. Henry Younghans.
    fjVrvice of garnishee1 summons issued by a Justice of the Peace against a corporation, must be served on a general agent or principal officer of the compuny, and service on a loculageut, nioroly, will not give the Court jurisdiction.

      Washtenaw Circuit,

      February, 1871.
    The defendant in error commenced suit before a Justice of the Peace against A, in an action upon contract, and took out garnishee summons in. due form against the plaintiff in error, who, it was claimed was a debtor of the said A, which was served on a local or station agent of the plaintiff in error at Manchester, and not otherwise ; and after judgment against the principal defendant, the Justice rendered judgment in favor of the plaintiff in that suit, (the defendant in error,) against the plaintiff in error, for the full amount of such indebtedness, the defendant in error not appearing before the Justice except to object to the sufficiency of service.
    The plaintiff in error brings the case into this Court by certiorari, and assigns for error amongst other things, that the Justice erred in rendering such judgment, as he acquired no jurisdiction over the plaintiff in error by service of process in the manner stated.

      Edwin F. Uhl, for plaintiff in error, reterreó to the Laws of 1861, page 242, Sec. 25.

      G. It. Palmer, for defendant in error.
   By the Court,

Higby, J.

The statute referred to by counsel for plaintiff in error, provides that corporations, other than mu* nicipal, may be proceeded against as garnishees, and that “ the summons against the garnishee in such case may be served on the President, Cashier, Secretary, Treasurer, General Agent, Superintendent, or other principal officer of such corporation.’’

It appears the plaintiff in error, a railroad corporation, owned and was operating a railroad running from Ypsilanti, in the county of Washtenaw, to Hillsdale in the county of Hills-dale, in this State, passing through the village of Manchester, in Washtenaw County, having there a station for the reception and delivery of passengers, and that the person on whom the garnishee summous was served, was a local or station agent of said plaintiff in error at that point, having no authority except the care and oversight of its local business there.

Held, That the service was not such as to give the Justice jurisdiction — that process could only be served on one of the officers expressly named, or other principal officer of the corporation, and that a station agent whose authority was confined to the business of the company at a single station on the road, was not a principal officer within the meaning of said act.

Judgment reversed with costs.


text:
    Miller F. Beebe vs. Allen Beebe
    Motion for now trial. Citation of authorities, where the ground for tho motion is newly disoov erpd evidence.

      Kalamazoo Circuit,

      May, 1871,

      O. T. TuthiU, for the motion.

      ScverenstSs Burrows, Contra.

      Motion for new trial, by defendant.
   By the Court,

Brown, J.

The motion in this case is denied, the showing being deemed insufficient.

One of the grounds relied upon for a new trial was newly discovered evidence, and in support of this ground the following authorities were cited: Hilliard on New Trials, 362, 382, 384; 1 Johns. Cases, 402; 20 Conn., 305; 14 Vt., 414; 7 Dana, 329; 28 Maine, 379; 7 Met. 478; 6 Pick, 114; 18 Vt., 460; 20 Conn., 305; 3 Gra., and Waterman on N. T., 1019.

Contra: It must be made to appear affirmatively that the evi. denee could not have been discovered by due,ordinary or reasonable diligence. Hilliard on New Trials, 378; Robinson vs. Doe, 6 Blackf., 85; Gardner vs. Gardner, 2 Gray, 434; People vs. Mack, 2 Parker, 673; Simpkins vs. Wilson, 11 Ind., 541; Laflin vs. Herrington, 17 Ill., 399; Williams vs. Baldwin, 18 John., 489; Stearns vs. Allen, 18 Vt., 119.

Newly discovered evidence, merely cumulative, is no ground for a new trial. Hilliard on N. T., 180, § 13; Stimpson vs. Wilson, 6 Ind., 474; Ferrin vs. Protection Ins. Co., 11 Ohio, 147; Schlencker vs. Risley, 3 Scam., 483; Smith vs. Schultz, 1 Scam., 499; Jennings vs. Loring, 5 Ind., 250; Gardner vs. Gardner, 2 Gray, 434; Manix vs. Malony, 7 Clark, 81; Gardner vs. Mitchell, 6 Pick., 116; Sawyer vs. Merrill, 10 Pick., 16; Whitbeck vs. Whitbeck, 9 Cow., 266; People vs. S. C. of N. Y., 5 Wend., 114; 10 Id., 85.

Newly discovered evidence, which goes only to impeach the credit or character of a witness, is not suffle ient ground for a new trial. Hilliard on N. T., 385; 6 Blackf., 496; 11 Barb., 215; 2 Denio, 109; 11 Ind., 234; 5 John., 248.


text:
    McWilliams vs Davis.
    Exceptions to referee’s report.
   By the Court,

Blackman, J.

The referee in his report has set out a summary of the evidence and the conclusion of law thereon. From this summary it appears that the plaintiff was indebted to defendant on note and mortgage, áDd while abse»t irons N iles sent defendant so-me money by express. On his return be asked to bave it indorsed on his note. This, defendant refused to do unless the express receipt was produced, which was mislaid. Plaintiff finally in small sums paid and took up liis note. There were no indorsements on it. Some time after he found the receipt and presenting it to defendant demanded payment. Then defendant claimed the raoneywas allowed in the payment of the note at the time the parties looked over their, matters and defendant gave ap the note.

The referee held:

1. The burden of proof was on the defendant to show ■ that he applied the money as requested.

2, That as there was proof that no such indorsement was made, the defendant was then hound to show by a preponderance of proof that it was in fact allowed in settlement, and that it was not done.

To this finding asto the burden of proof defendant excepted.

JTehl, The first finding is erroneous, but immaterial to the actual issue, which is that the money was not applied in payment of the note, and that it was not indorsed. 9 Mich. 500.

The second finding is correct as the plaintiff had made out a 2>rima. facie case.

Where, upon the facts found by the referee,the plaintiff is entitled t.o recover, an erroneous finding of law which did not affect the decision on its merits will be disregarded.

The exceptions are disallowed.