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    John Patten v. The People.

      Homicide: Biotous Assembly: Duty of pi'osecution in offei'ing proof: Declarations: Bight of dejence: Cross-examination. On a trial for a homicide where it appeared that the riotous assembly, (of which the deceased was one) gathered at the time, grew out of and was connected with one which had assembled there the night before, and with the same obiect — it was held that all the proceedings and objects of both gatherings, together with the .provocation to the defendant and his acts, constituted together one entire transaction.

      Held, further, that as the homicide resulted directly from said assemblages, and their riotous conduct, it was the^right and duty of the prosecution to show the transaction as a whole, its nature, and its objects, whether tending to show the guilt or innocence of the defendant. —Maher v. People, 10 Mich. 212; Brown v. People, 17 Mich. b%9.

      Held, further, that whether the prosecution failed to do so or not, it was the right of the defendant, either by cross-examination or by his own witnesses, to go fully into all matters thus constituting the res gestas, and to show any act or declaration of any one of either assemblage, in furtherance of the common object, or in reference to it, from its inception to its close — the combination once being shown.

      Cross-examination: Bes Cestos. A witness for the prosecution (one of the rioters,) having testified fully in reference to the proceedings of the first night, and that defendant had confessed to having struck deceased on the second night, denied on cross-examination, that he had stated to different persons soon after, that he was present as a horner, but was only a mere looker on, and took no part in the matter whatever.
    The court refused to permit the defendant to contradict said testimony.

      Held, that said statements related to the res gestos, and their contradiction was competent.

      Justifiable Homicide. There is no positive rule for the definition of justifiable homicide. It must depend upon the circumstances and surroundings of each case. — Pond v. People, 8 Mich. 150.

      Justifiable Homicide: Defense of one's family. If from the defendant’s knowledge of his mother’s peculiar physical condition, he had reason to believe that her life was endangered by the riotous proceedings, and if the rioters were informed of her condition, or if all reasonable or practicable efforts had been made to notify them of the fact, it was sufficient to excuse his conduct toward them to the same extent as though the danger to her life had resulted from an actual attack upon her person, or as though in the like danger from an attack upon himself; and he was justifiable in using the same means of protection in the one case as the other.

      Held, further, that if the noise and tumult of the rioters prevented defendant giving them notice of the danger to his mother, he was excused from doing so.

      Homicide. Eights of defendant. The defendant was justifiable in acting for his defense according to the circumstances as they appeared to him; and if from those circumstances, he believed there was imminent danger of death, or great bodily harm to himself, or any member of his family, and he had tried all reasonable means which would, under the circumstances, naturallv occur to a humane man to repel the attack, he might resort to such forcible means, even with a dangerous weapon, as he believed to be necessary for protection, and if such means resulted in the death of any of the supposed assailants, the homicide would be excusable.

      Criminal Cases: Mode of review: Writ of Error. In criminal cases where the proceedings before judgment are sought to be reviewed by the Supreme Court, they are to be certified to this Court by the clerk without the agency of a writ of error, and no assignment of errors is necessary.

      Heard 7th and 8th.

      Decided April 27th.

    Error to Oakland Circuit.
    The defendant was tried and convicted for the homicide of one Elias Cowles.
    Upon the trial the people offered proof, tending to show that a few days prior to the 17th day of December, 1867, the defendant, John Patten, who was then residing in Highland, in said county, got married to a Miss Sarah Grow; that on the night of the 17th, Luther Mills, George Mills, James Lockwood and others, to the number of from eight to fifteen, got together and went to said respondent’s to “horn” him. That they went there in' the night time, between nine and ten o’clock; that one of the party had a gun; others tin horns, cow-bells, &c.; that -¡¡hey went in upon the premises of said Patten, who was then living upon a farm with his father and mother; and commenced their “horning” by shooting the guns, blowing the horns, ringing bells and yelling, and soon after defendant came ont and ordered them off, and they all ran off. It further appeared that defendant heard that the horners purposed to visit his house the next night.
    The people further offered proof tending to show that Elias Oowles, the deceased, on the following day, made preparations to go the next night to “horn” the prisoner; that he met with some fifteen or twenty others, and on the night of the 18th, was elected captain; that they had guns, tin pans, horns, a horse-fiddle and other instruments to make, noises with; that they had seven or eight guns, army muskets, so-called, and shot guns; that one of the party had a shot gun loaded with powder and shot, which had been loaded a few days before to shoot rabbits with and that the boy who had this gun fired it off in the air after they got to Patten’s; that they went into the yard of the premises of the defendant, and there fired their guns into the air, and blew their horns, rang their bells, and made as much noise as they could upon these instruments; that they passed from the road into the yard through a large gate; that they walked along still, without making any noise, until the word was given, and then all the guns were to be fired at once, and then the other noises to commence; that Elias Oowles requested William Lee, one of the party, and a witness, to give the word as they, the Pattens, would not be so likely to know his voice; that he, William Lee^ did give the word, and all the guns were fired; that the said Oowles had a gun; that he (Lee,) had a joint of a flute, and blowed on it; that there was considerable yelling; that after the noise had been going on a few minutes, John Patten came to the door, near where they were, but said nothing; he went back into the house, and soon came out and went towards Elias Oowles, who was standing facing him, with the butt of his gun on the ground; that John Patten ■ ran up to him; that said Lee heard a blow; that he looked and saw Elias Cowles partly down on his hands and knees; • that Patten struck a second blow; that he then saw he had an axe, and this blow struck Cowles on the head and knocked him clear down; that the witness hallooed “for God’s sake don’t let him kill this man,”’ and stepped towards the prisoner, and he ran back into the house; that Cowles got up, picked up his hat and his gun — some one asked him if he was hurt, and he said he guessed not much, but he must go and get a drink of water; that he died next day from wounds received that night.
    The prosecution asked Lee under objection:
    “Did you go to Patten’s for any other purpose than to £horn’ Patten?”
    The Court overruled the objection and admitted the evidence, and defendant excepted.
    The counsel for the defendant asked the peoples’ witness, on his cross-examination, if Cowles did not tell him, that the boys running away "the night before was a cowardly act, and that night they were going to get a company together and go there and stand their ground.
    The prosecution objected, and the Court sustained the objection.
    On the part of the defendant, it appeared that he resided with his father and mother who were aged and infirm people; that the old lady was quite feeble, and had for many years suffered from palpitation of the heart, and also from spells of dizziness; that any unusual excitement brought on the palpitation of the heart, and any over doing or prostration was' likely to be followed by attacks of dizziness.
    That defendant on being aroused by the noise out of doors, went down stairs; that his mother was in great terror, lest violence should be done.
    That she begged him to drive them off; that he then stepped to the door and ordered them off; they paid no attention to it; the noise kept on; he stepped -to the door again, and took the axe and stepped out, and several voices cried, “ shoot him; damn him, shoot him;” that. as he stepped out owards them, the crowd sallied on to him, and he was struck with a gun or other weapon; that he struck deceased, and then went into the house, and that several gun wads were fired through the open door.
    The counsel for the prisoner submitted several requests in writing, and asked the said Court to charge thereon, among which were the following:

      First — “That private persons may forcibly interfere to suppress a riot or resist rioters; and although a riotous attack be not a felonious one, yet if the riot be directed against the property or the house of the person who resists it, in making such resistance, he has a right to the use of such means as will make the resistance effectual; and if in making such resistance effectual, one of the rioters be necessarily killed, the killing will be excusable homicide.”
    The Court refused, but did instruct the jury, “ that if the rioters were there upon the premises of the prisoner, and did no injury to the property, and did nothing but make their noises, it would be but a mere trespass, and the owner could not eject them or expel them by force, to the extent of taking life, unless to prevent some felony about to be committed or attempted, by the rioters, or to save life or limb.”
    The following requests to charge were all refused and excepted to.

      Second — “ That persons have a right to the peaceable possession of their premises and property, and if, while in the peaceable possession of such property, a riotous assemblage takes possession of such property in the night time, and undertake to maintain such possession by force, the owner may repel such riotous assemblage by force, and if in making such resistance effectual, one of the rioters be necessarily killed, the killing will be excusable homicide.”

      Third — “ That the law of self-defence is a law of nature. It extends not only to the person himself, but to those who bear the relation to him of parent and wife, and it also extends to his house, called in the law his “castle,” and a person may make effectual this defence from all attack; and if in making this defence, it becomes necessary to take the life of the aggressor, it will not be felonious, but will be excusable homicide.”

      Fourth — “That, if from all the evidence and circumstances proved, the jury find that the prisoner had reasonable grounds to believe that there was, before he struck the blow, a design to commit any felony upon his house or upon any members of his family, and that the deceased was either principal in such design or present as accessory, the killing of the deceased will be excusable homicide, although it afterwards appear that no felony was intended.”.
    The Court refused, except with the following qualification and amendment, to wit: after the words “members of his family” insert these words, “and the danger imminent,” and at the end of said request, add the words “provided he first used all other means in his power to prevent the accomplishment of the supposed intended felony.”

      Fifth — -“That the prisoner had a right to judge, and upon the facts and circumstances which surrounded him, as they appeared to him at the time of the homicide; 'and, if from all the evidence the jury -find, that the homicide was committed in repelling an unlawful and malicious assault upon his dwelling house, and he used only reasonable and necessary means to prevent it, the act of the killing will be excusable homicide.”
    The court refused, except with the following qualification and amendment, to-wit: after the words, “appeared to him at the time of the homicide,” insert the following words: “but at his own peril- — and it is the province of the jury to determine, from all the facts and circumstances, whether the accused had reasonable cause to apprehend imminent danger to life or limb, or that a felony was about to be committed.”

      Sixth — “ That if the jury shall find that the prisoner was laboring under a reasonable apprehension that his mother was so affected, by the riotous assemblage, that she was likely to die, or to receive grievous bodily harm, and he could not remove the rioters from his premises without force, and by resort to force, the deceased was killed, the killing will be excusable homicide, provided no more force Avas used than was necessary, under the circumstances, as they appeared to the prisoner at the time, in repelling the riotous assemblage.”
    After the judge had concluded his general charge to the jury, he further charged that a riot was not a felony, but only a misdemeanor.
    The defendant was convicted of manslaughter.

      M. B. Orofoot, for plaintiff in error.
    1. Only the acts of the rioters, could be given in evidence on behalf of the people. Their undisclosed intents and purposes were immaterial.
    2. Affirmative evidence having been offered by the people, and admitted by the court, to show the purposes and the intent with .which the rioters went to Patten’s, viz: for no other purpose than to horn him, it was certainly competent for the respondent to meet that evidence by showing that they went for other and different purposes, ■namely: that they Avent there with an intent to remain, and conduct their riot with force and violence, and to engage in actual conflict, if need be, in order to remain.
    Under the same point we claim that the court erred, in not permitting the counsel for the respondent to show, on the cross-examination of Delos Alger, a witness called by tbe people, all of tbe conversation that was had between the witness and Cowles, at the time Cowles spoke to him about going; the witness, on his direct examination, having been examined on that point.
    3. The defendant was justifiable in defending himself from the attack of the rioters even to the taking of life.,
    "While it is not denied but that the instructions prayed for, should have been given in case of committing or attempting felonies with force, yet as it was claimed as applicable to all misdemeanors, or attempted misdemeanors, it would be improper; it is important to consider:

      a. What crimes were denominated felonies at the common law?

      b. Why, in felonies, a different rule should be adopted from that of misdemeanors attempted or committed with violence and force, creating a breach of the peace, and therefore tending to the most serious consequences.
    The general term felony, “comprises every species of crime, whieh occasioned at common law forfeiture of lands and goods;” but so' general had become the impression that the life of the felon became forfeit, that all capital offenses obtained the general signification of felonies. — 1 Bl. Com. 94 to 98; 1 Russ, on Grimes, 51h Am. Ed. 11/., 15; 1 Bish. Or. Law, §§ 44-8, 44-9.

    Crimes and misdemeanors, are “synonymous terms — though in common usage the word ‘ crimes’ is made to denote such offenses as are of a deeper and more atroeious dye.” —4 Bl. Gom. 5.

    “A misdemeanor is any crime less than a felony.” — 1 Bish. Gr. Law, 458; 1 Russ, on Gr. If.

    If one sees a felony being committed, and he does nothing to prevent it, he is himself guilty of crime— misprision of felony; that, therefore, in discharging this duty, if. he necessarily kill, he is within the principle of perfect defense. — 2 Bish. Gr. L. § 551.

      Mr. Bishop even refers the law of self-defense in justifying homicide from a murderous attack, to this principle, rather than the preservation of the life of the assailed party. — Id. § 549, last paragraph.
    When there is a duty to resist the aggressor, then this right of perfect defense exists.
    And although this author seeks to make this duty the controlling point in the right of perfect defense, yet he recognizes the correctness of the authorities which put this right upon the ground of' resisting crimes committed with force; which force creates the necessity; from Avhich it follows that the duty alone does not create the right, but rather the necessity.

    And this question has been directly adjudicated.— Gray v. Combs, 7 J. J. Marshall, 478; Cited in §555, 2d Bish. Or. L.

    And Blackstone refers this right of defense rather to the prevention of forcible crimes, and also by night, than to the extent of the punishment. — 4 Bl. Com. 180.

    And he also refers the law of self-defense to the right to defend from forcible attach. — 8 Bl. Com. 8 and 4,

    Riots, by the authorities, are classed among the most dangerous of crimes; and for their prevention and suppression, the most powerful and urgent means are demanded; and the right of private persons to resist and suppress them by means not allowed as to other misdemeanors, we find stated in the oldest common law authorities. — 1 Hawh. P. C. Oh. 28, § 14; Id. Oh. 65, § 21; Text in 1 Arch. Cr. Pr. and PI. p. 789 [228]; 1 Hale P. C. 58, 49!/., 495; Post. 272; Poph. 121, cited Id. p. 788, note; 1 Buss. Or. 285; Mead’s Oase, I Lew. c. c. 184; Id-1 Buss. 668.

    And it is as well the duty, as the right of all per sons — officers and private persons — to suppress riots and prevent affrays. The preservation of the peace, is a duty
      charged upon all who see it broken. — 1 Bish. Grim. Pro-' ceed. §623, 626, 628 ; 2 Bish. Gr. Law, §573.

    And so important has it ever been considered to prevent and suppress these crimes, that statutes highly penal; and containing especially efficient provisions, have at most all times been enacted.- — Bl. Com. Ufi to lift.

    This court in the case of The People v. Pond, established the' rule that a homicide may be justifiable in repelling a riotous attack, although the riot itself be not necessarily felonious. — 8 Mich. 150-1, 173, 178.

    Under the law, then, as laid down by these authorities, we claim that the respondent had the right to the instructions prayed.

      First. “Private' persons may forcibly interfere to suppress a riot or'resist rioters; and although a riotous attack be not a felonious one, yet if the riot be directed against the property or the house' of the person who resists it? in making such resistance he has a right to the use of such means as will make the resistance effectual; and if, in making such resistance effectual, one of the rioters be necessarily killed, the killing will be excusable homicide.”

      Second. “That persons have a right to the peaceable possession of their premises and property, and if, while in the peaceable possession of such property, a riotous assemblage takes possession of such' property in the night time, and' undertakes to maintain such possession by force, the owner may repel such riotous assemblage by force, and if in making such resistance effectual, one of the rioters be necessarily killed, the killing will be excusable homicide.”

      Third. “ The law of self-defense is a law of nature. It extends not only to the person himself, but to those who bear the relation to him of parent and wife, and it also extends to his house, called in the law his “castle,” and a person may make effectual this defense from all attacks,
      [of a felonious nature /] and if in making this defense it becomes necessary to take the life of the aggressor, it will not be felonious, but will be excusable homicide.”— £ Bish. Or. L. § 569.

      Fourth. “That if, from, all the evidence and circumstances proved, the jury find that the prisoner had reasonable grounds to believe that there was, before he struck the blow, a design to commit any felony upon his house or upon any members of his family, and that the deceased was either principal in such design or present as accessory, the killing of the deceased will be excusable homicide, although it afterward appear that no felony was intended.

      Fifth. “That the prisoner had a right to judge, and act upon the facts and circumstances which surrounded him, as they appeared to him at the time of the homicide; and if, from all the evidence, the jury find that the homicide was committed in repelling an unlawful and malicious assault upon his dwelling house, and he used only reasonable and necessary means to prevent it, the act of the killing will be excusable homicide.”

      Sixth. “That if the jury shall find that the prisoner was laboring under a reasonable apprehension that his mother was so affected by the riotous assemblage, that she was likely to die, or to receive grievous bodily harm, and he could not remove the rioters from his premises without force, and by resort to force, the deceased was killed, the killing will be excusable homicide, provided no more force was used than was necessary, under the circumstances, as they appeared to the prisoner at the time, in repelling the riotous assemblage.”
    The apprehended danger to life, spoken of in the books need, and does, not necessarily contemplate immediate death; but an injury that would shorten life is within the rule.— 2 Bish. Or. L. $562.

    And the bodily harm apprehended is not necessarily such as endangers life. — Young v. State, 11 Hump. 200; 2 Bish. Or. Law, $561.

    The charge then, taken together, and the requests asked by the prosecutor and singly given, and the requests refused, had an evident tendency to mislead the jury as to the law of the case : and if the respondent, under all the circumstances of the case, had a right to use force to suppress the riot — to repel the assault — to resist the apprehended attack — to protect his household and defend his dwelling — whether the degree of force used was either excusable or justifiable — was a question for the jury to pass upon, under proper instructions from the court as to the law of the case. — State v. Clement, 82 Me. 279; Sefridge’s trial, cited in Wharton on Homicide, 456, 457; Maher v. People, 10 Mich. 212, 221 to 224■

      Diuight May, Attorney General, for the People.
    '1. The court below erred in permitting the witness, William Lee, to answer the question as to whether they (the horners) went to Patten’s for any other purpose than to horn Patten.

      a. Lee being of the party who went to Patten’s, it was competent to show by him with what intent he was there, and if he knew, with what intent the others were there.
    Where a person does an act, he may, being a witness, testify to the motive or intent with which it is done — ■ Wheeldon v. Wilson, 44 Maine, 1; Seymour v. Wilson, 14 N. Y. 567; Foster v. Walker, 25 Id. 480, 9; McKoon v. Hunter 80 Id. 625; Bedell v. Qhase, 84 Id. 888.

      b. If the defendant could show the intent with which the “horners” went to Patten’s, why may not the people?

      c. The testimony being admissible, its weight or ' effect was a question for the jury. — Hilliard on New Trials, 2Jfl, and cases cited.

    What occurred the night before the homicide was a distinct transaction, and not necessarily connected with it. If the “homers” were guilty of a crime the second night, the fact that some or all of them had been to Patten’s before, and on a similar mission, would not add to or diminish the offense. It was not a continuous offense.— Whart. Grim. Law, bb® ; Whart. on Horn. 182; State v. McCants, 1 Spear., (S. G.) 38b; Gom. v. Green, 1 Ashmead, 289.

    Nor would this proof show a felonious intent on the part of Cowles, and those with him. It- would show the reverse, for it is quite clear from the whole record that they went to Patten’s to “horn” him, and for no other purpose.
    2. The court refused to charge that private persons may forcibly interfere to suppress a riot or resist rioters, &c.

      a. Chapter 184, Oomp. Laws does not authorize private persons to suppress a riot.

      b. A riot is only a misdemeanor. — Chap. 18b, Comp. Laws.

      c. And it. is not a felony at Common Law. — 2 Bish. Grim. Law, 963.

      d. A private person may act only to prevent the commission of treason or of a felony. — 1 Bishop Grim. Pro. 622, 623.

    The charge on this point as given, was' correct.— Wharton on Homicide, 212, 213; People v. Doe, 1 Mich. b56; People v. Horton, b Id- 57; Pond v. The People, 8 Id. 150.

    3. It is not excusable homicide, when life is taken in defending one’s premises against an attack, not of a felonious nature.
    4. A person is not permitted to measure his own wrongs, and to judge of the necessity of taking life. It would permit killing for the slightest trespass. — Pond v. The People, 8 Mich. 164, 175, 177; Shorter v. The People, 2 Gomst. 198; U. S. v. Wiltburger, 8 Wash. 515; People v. Lamb, 2 Keyes, 860.

    5. Before the taking of life will be excusable or justifiable, the accused must use all other means in his power to prevent the accomplishment of the supposed intended felony. — Pond v. The People, 8 Mich. 150; Shorter v. The People, 2 Gomst. 198; Stewart v. State, 1 Ohio, St. 66; 11 Allen, 205, 206.

   Christiancy J.

The evidence on the part of the prosecution, as well as that on the defense, showed very clearly that the riotous assembly, which gathered about the house of the defendant, on the night of the homicide, grew out of, and was directly connected with, that which had assembled there the night before, and had the same object in view; that Cowles, the deceased, on the day intervening, went around to several boys and young men, to induce them to go the next (second) night; that he was active in getting up this second riotous assemblage, and was elected their captain. All the proceedings and objects therefore of both assemblages, the provocation thereby to the defendant, and his action in opposition to them, constituted together one entire transaction, or the res gestee. And as it was also clear that the homicide, whatever its legal character, resulted from these assemblages, and their riotous conduct, and would not otherwise have occurred, it was not only the right, but the duty of the prosecution to show generally the transaction as a whole, its nature and its objects, whether its tendency should be to show the guilt or innocence of the defendant. — Maher v. The People, 10 Mich. 429, and Brown v. The People, 17 Mich. 212. This was not only necessary in fairness to the prisoner, but- to enable the jury, from a view of the whole, to estimate and apply each particular item of evidence which might be adduced in any stage of the case.

But whether the prosecution did this or not, it was the clear right of the defendant, either by cross-examination, or by witnesses introduced in his defense, to go fully into all matters thus constituting the res gestee. He could not be bound by the showing on the part of the prosecution, but was at liberty to show that the transaction as a whole, or in any .of its parts or purposes, was different from that shown by the prosecution. And for this purpose it was competent for him to show any act or declaration' of any individual of either assemblage in furtherance of- the common object, or in reference to it, from the inception to the close of the transaction; their combination or concert having already sufficiently been shown.

The defendant undertook to do this by the cross-examination of the prosecutor’s witnesses, and the proposed cross-examination was strictly legitimate under any rule ever applied to cross-examination, as it related directly to matters called out on the direct examination. The prosecutor’s witnesses, some of the rioters themselves, had already given evidence, tending to show that the only object of the rioters was to go upon the defendant’s premises for the purpose, as they expressed it, of “horning the defendant,” who had lately been married, and that they contemplated no violence or injury to person or property. The defendant offered to show, on cross-examination, that at the time the rioters made the arrangement to assemble the second night on the defendant’s premises, their running away the night before was talked of by them, and was called a cowardly act; that they were going to get a company together that (second) night, who were not afraid, and would stand fire, and stay on the premises, and horn the defendant, whether he liked it or not; and that they would not go off the premises or be driven off.

This cross-examination the court erroneously refused to permit; and the error would not have been less, had the defendant offered to show the same facts by witnesses of his own.

The court equally erred in refusing the defendant the right to show that Cowles, the decreased, had said substantially the same thing to one of the witnesses on the part of the prosecution.

Henry Butler, who was one of the rioters on the first night (though not upon the second), and who had testified fully on the part of the people in reference to the proceedings of that night, and had also testified that defendant had confessed having struck the deceased three times on the last night, was asked on cross-examination whether he .did not, at the house of Mrs. Barret, a few nights after, state to her, that he was not there the first night as one of the company of the homers, but that he happened there as a mere looker on, and took no part or lot in it whatever ; to which he answered in the negative. Similar ques-. • tions were asked him as to similar statements to other persons — all which he denied. • These questions were avowedly asked for the purpose of laying a foundation for impeaching him by showing that he had made statements out of court in reference to the matter, different from those now made under oath.

The court holding that such statements if made, related to matters wholly collateral, and not to the res gestee, refused to allow the defendant to contradict him, by showing that he had made the statements which he denied having made. This also was erroneous. The statements related to the res gestee, and the proposed contradiction, if shown, would have tended seriously to weaken his credibility.

Various questions were raised upon the charge to the jury, and several special requests were made by defendant to charge upon specific points, some of which were refused or charged in a modified form; and some were based upon hypotheses not warranted by any evidence in the cause.

We think it better to indicate what should have been the principles of the charge as a whole upon the points in dispute, than to consider the detached parts presented by the several requests to charge, which would tend rather to confuse, than elucidate the real questions involved.

No fault seems to have been found’ with the charge as it related to the distinction between murder in the first and second degree, or between murder and manslaughter.

The' object of all the defendant’s special requests was to obtain from the court a charge which should authorize or require the jury, upon certain supposed states of facts, to and the killing excusable homicide.

A correct idea of excusable homicide is not perhaps easily expressed by a brief abstract definition, without special reference to the facts of particular cases. We accordingly find the latter ■ mode adopted in all the books. It has been thought safer to illustrate by particular instances, than to. undertake to define, in advance, all the particular elements or combinations of facts which may render homicide excusable.

Of course, the enumeration of particular cases, does not exclude any others falling within the like principles.

But the principles which underlie and result from all the cases in which the homicide has been held excusable in self-defense, or in defense of one’s family or persons standing in particular relation to him or of his property, are so fully and accurately stated in the opinion of my brother Campbell in Pond v. The People, 8 Mich. 150, that an attempt to enumerate them here, would be a mere repetition. The principles there laid down, apply equally to the present case upon certain states of fact which it was competent for the jury to find from the evidence.

That case, however, differed from the present in certain important particulars. There an actual attack upon the defendant’s dwelling was going on, and the rioters were in the act of demolishing it, and a servant of the defendant, then in the house, was being violently and, to all appearances, dangerously assailed when the fatal shot was fired.

In the present case, no actual attack had been made upon the defendant’s house, no forcible attempt to enter; and unless the defendant, when he stepped out of the house with the axe, was, as in his statement he claimed to be, actually struck by some one or more of the rioters, there was no actual attack made upon the defendant, or any one of his family. There was, however, evidence tending to show that, when the door was standing open, and the defendant and his father and mother were ordering the rioters off, the wads from some of the guns were fired into the house. The evidence also tended to show that the defendant knew or understood that the general and original object of the rioters in assembling there, was to annoy him and his family by the blowing of horns, ringing of bells, firing of guns loaded only with powder and wads, and by other noises, rather than personal injury to himself or any of his family. But there was also evidence that before the defendant stepped out, there were threatening cries among the rioters to “bring him (or fetch him) out” or “ to bring or fetch them out” which must have referred to the defendant, and perhaps to his wife, and possibly to his father and mother.

Considering the case first, with reference only to the facts existing prior to the time when the defendant went out with the axe, and without reference to the peculiar effects produced by the conduct of the rioters upon his mother, there was nothing, I think, in the evidence fairly tending to show a state of facts which would justify or excuse the defendant in rushing out and attacking any of the rioters with an axe, or other dangerous weapon, for the purpose of compelling them to desist or leave, though he might have been excused for attempting to drive them off by force, and even, by blows with any instrument not calculated to endanger life or limb. But though, from the sudden, violent and capricious impulses to which an excited mob is always subject, danger may always be naturally apprehended, especially about a man’s dwelling at night, whatever the original object o'f the assemblage may have, been — and no one can estimate the nature or extent of the danger — yet, until some actual violence had been done or attempted in this case against either the house, or its inmates, the necessity which alone could excuse taking the life of any of the assailants, had not yet occurred, and might never occur. And though the defendant had the rignt to act under the circumstances as they appeared to him; yet up to this point (without reference to the defendant’s mother,) there was nothing in the circumstances which fairly tended to show that 'he could 'have believed the dire necessity to have arisen.

5¡d. We will next inquire how far the case may be affected by the peculiar effects, produced upon the defendant’s mother by the conduct of the rioters.

There was evidence from which the jury might have found that, owing to the feeble health of the mother and her peculiar infirmities, the fear and excitement caused by the conduct and threats of the rioters produced upon her alarming effects, from which the defendant might well have apprehended her speedy death if such conduct were allowed to continue. But to render this available to the defendant as an excuse for the homicide, the jury should also find that the rioters were informed of this condition of the mother, and the effects produced by their conduct; or that every reasonable and practicable effort had been made to notify them of. the facts — as such are not the ordinary effects of such causes upon people generally, and therefore, would not naturally be anticipated by the rioters. But if they had such notice, or the defendant was prevented from giving it, by the noise and tumult oí the rioters; then I can see no sound reason why the danger to the mother from their conduct, should not have excused the conduct of the defendant towards them, to the same extent as if the danger to her life had resulted irom an actual attack upon her person, or the like danger to the defendant from an attack upon him. And the defendant would, I think, have the right to resort to the same means of protection in the one case as in the other. What these means are, in what contingency they may be used, and how they are to be judged of by the defendant, will be considered under the next head.

3d. There was evidence — and the statement of the prisoner made on the trial must for this purpose be treated as such — from which the jury might have found (as supposed in part of the charge given by the court below) that the defendant took the axe from the house for the purpose of self-defense, and stepped out of the door for the purpose of inducing the rioters to leave, or .of dispersing them; and that, as he stepped out, the crowd cried out “ kill him, damn him, kill him,” and that rushing towards him, some one or more of them hit him with a gun or club or other weapon.' If this hypothesis should be found to be true, instead of the charge given by the court, the jury should I think, have been told substantially that the defendant was excusable for acting according to the surrounding circumstances as they appeared to him: and if, from those circumstances, he believed there was imminent danger of death or great bodily harm to himself dr any member of his family, then, if he had already tried every other reasonable means,, which would, under' the circumstances, naturally occur to an honest and humane man, to ward off the danger or repel the attack, he might resort to such forcible means, even with a dangerous weapon, as he believed to be necessary for protection; ’and if such means resulted in the death of any of the supposed assailants, the homicide would be excusable.

“It is not to be forgotten that the rioters assembled there for an illegal object; for the purpose, by their own confession, of a wanton and unprovoked insult and defiance to the defendant and his family; that the unpleasant, and as it turned out, the terrible crisis, was forced upon the defendant against his will, by their criminal conduct. And while provocation, as such, cannot render the homicide excusable; yet in estimating the nature and imminence of the danger, in the choice of means to avoid it, or the amount of force, or kind of weapon to be used in repelling it, the excitement and confusion which would naturally result from the surrounding circumstances, for which the rioters alone were responsible, should not be overlooked. To require of the defendant, while under a high degree of mental excitement, induced by their wrongful and criminal conduct, and without his fault, the same circumspection and cool, deliberate judgment, in estimating the danger or the choice of means for repelling it, as we, who are unaffected by the excitement or the danger, may now exercise in contemplating it, would be to ignore the laws of our being, and to require a degree of perfection to which human nature has not yet attained. Of the weight a jury should give to'these considerations no safer standard can be found than their own individual consciousness, and the consideration of what they, with the honest purpose of avoiding the danger, without unnecessarily taking life, might, under , the circumstances in which the defendant was placed, be- likely to do.

' As no fault was found with the charge in reference to the distinction between murder in the first and second degree, or between murder and manslaughter, it is unnecessary to consider the phases of the case which might call for jija charge upon those questions.

A new trial must be granted.

It is proper to notice the erroneous practice which has been resorted to m this case of bringing up the case upon a writ of error before judgment. There is in such a case no judgment to reverse, and no appropriate function to be performed by a writ of error. By reference to chapter 197, Compiled Laws, it will be seen that the record and proceedings, including the exceptions, should have been certified to this court by- the clerk, without a writ of error. But as the certificate of the clerk by way of the return to this writ, substantially complies' with this requisition, this court is equally possessed of the case. See Shannon v. The People, 5 Mich. 36. No writ of error' should have issued in the present case, and no assignment of errors was necessary.

The other Justices concurred.


source: Caselaw Access Project

author: Graves J. Campbell J.

license: Public Domain

text:
    John Dawson v. Margaret Dawson.

      Divorce: Void marriage: Fraud: Satisfactory evidence: Declaration, To maintain a bill for divorce there must he satisfactory evidence sustaining the charge, irrespective of the declarations, confessions or admissions of the parties.

      Heard April 24.

      Decided April 27.

    Appeal in Chancery, from Barry Circuit.
    The bill in this cause was filed to obtain a'decree annulling a marriage on the ground of fraud.
    The cause was heard on pleadings, and proofs, and a decree granted as prayed for.
    The facts are stated in the opinion.

      H. M. é W. P. Cheever, for appellant.

      James A. Sweeney, Qeo. H. Prentiss, and T. Romeyn, for defendant and appellant.
   Graves J.

This suit was brought by the husband against the wife to obtain a decree annulling the marriage between them, on the.alleged ground that complainant’s assent to the marriage was obtained by the fraud of the defendant. The fraud imputed to the defendant was her concealment of the fact that she was pregnant; and to support the charge, it was incumbent on conxplainant to establish by satisfactory evidence that he was actually deceived, and to that end to negative any legal inference, that he knew, or, as a man- of ordinary intelligence, had reasonable ground to believe, what the defendant’s condition was. This, we think, he has failed to do, even if all the testimony before us and bearing upon the question, is deemed satisfactory testimony in a cause of this description. But there is another view of the cause which appears to us to be fatal. The statute declares that “No decree of divorce, or of the nullity of a marriage, shall be made solely on the declarations, confessions, or admissions of the parties; but the court shall in all cases require other satisfactory evidence of the facts alleged in the bill for that purpose.” Comp. L. § 3261. If the “declarations, confessions and admissions ” of the parties to this case Were stricken from the record, nothing would remain to sustain .the charge of fraudulent deception but the oath of the complainant and such deductions from the conduct of the parties as, in respect to such persons and such a transaction, could be properly drawn; and if this test should be applied, it would, we think, be quite manifest that the other satisfactory evidence required by the statute of the facts alleged in the bill would be wanting.

It is, however, by no means certain that the most material part of the complainant’s deposition, aside from the portion which narrates statements and admissions of defendant, would not in strictness be considered as within the mischief the statute was meant to remedy.

These considerations are sufficient to show that if we give to the declarations, confessions, and admissions of the parties all the weight which can be claimed for them in this case, there will still be lacking the other satisfactory evidence that complainant was deceived as alleged.

The decree of the court below must be reversed, and one entered in this court, dismissing the bill, with the costs of this court.

Cooley and Ohristianoy, JJ. concurred.,

Campbell J.

I think the complainant’s case was sufficiently made out, and that the decree of nullity should be affirmed.

The facts are such that it is not desirable to enlarge upon them. I shall, therefore, content myself with merely expressing an opinion on the result.


text:
    Matilda Chapaton et. al. v. Milton H. Butler, et. al.

      Costs when one suit is to abide the result of another. Where, by stipulation, It was agreed that one of two suits in Chancery, pending in this court, should abide the decision of the other:

      Held, that the prevailing party was entitled to the same solicitor’s fee in .both cases, and in both courts, as well as actual disbursements, except the cost of taking the testimony and printing the record: that being allowed but in one case.

      Heard and decided April 28.

    Appeal in Chancery from Wayne Circuit.
   • This case was submitted at a former term of this court, with the case of Cam/pau v. Godfrey, and it was stipulated that both ■ should abide the decision of the latter. The testimony was taken, and the record printed only in the last case.

The bill in that cause having been dismissed with costs, the same décree was entered in this one.

The complainants objecting to full costs, the court held that the defendant was entitled to the same solicitor’s fee, in both cases and in both courts, as well as actual disbursements; except for taking testimony and printing record, that being allowed but in one case.


text:
    The People ex. rel. William Cuthbert v. The Common Council of Detroit.

      Mandamus: Public office: Common Council. A writ of mandamus is not the proper proceeding to try the right to a public office.

      Heard and decided April 28.

    Motion for a mandamus.

    The relator claimed to have been elected by the Common Council of Detroit to the office of assessor; but that the Council wrongfully deprived him of the office by refusing to count the vote of one of the members in his favor. He therefore applied for a mandamus to compel them to count such vote, and to declare him elected.

      D. O. HoTbroolc, for the motion.
   The Court held that mandamus was not a proper proceeding to try the right to a public office, and declined to make an order to show cause.


author: Campbell J.

text:
    Jehiel H. Montgomery v. Jane A. Merrill.

      Bank charter: Forfeiture: Repeal: Collateral proceedings. Plaintiff obtained a sheriff’s deed on sale of certain real estate, under a judgment against the Calhoun County Bank in 1859, and which became operative in 1860.
    A Beceiver was appointed for the Bank, under the act “to provide for proceedings in’Chancery against corporations,” in June, 1844, ex parte and before hearing. After qualifying, no proceedings were taken by'him, and no assignment was made to him, and he died in 1851; and no further steps were taken in the suit in which he acted by any one, and no claims were presented against the bank.

      In 1842 a law had been passed to repeal the charter of said bank, with others, providing, however, for an exemption in case of compliance with certain provisions. The charter of the bank expired in 1857, and all rights of action in reference to it under the statute — Comp. L, § 701 — became barred, more than three months before the plaintiff’s deed became operative.

      Held, That the said law of 1842 did not repeal the charter so that a forfeiture could be ascertained without judicial sentence, and that therefore the title to land could not be absolutely divested from the bank before a hearing of the proceeding to determine the fact of forfeiture.
    Much less could the fact be determined in a collateral proceeding.

      Ejectment: Receivership; Execution-title. In an action of ejectment to recover said premises under the execution title: Hdd} that while a decree of forfeiture if granted, might have related -back to the beginning of the receivership, yet without such adjudication, the receiver’s title, to the bank’s assets remained? conditional and inchoate, and amounted to but a possessory right for the purposes of the suit. The legal title therefore to said land never vested in the receiver, and it was subject to levy and sale.
    Whatever may be the effect of a temporary receivership in creating priorities, or as regards possession, the statute authorizing lands to be sold on execution, is inconsistent with the idea that as against the debtor himself such a levy would not be good when he has made no assignment to the receiver. When the right of a receiver terminates, and he has made no sale or other legal disposition of the land, the execution-title will stand as if there had been no receivership.

      Enforcement of legal rights: Reasonable time: Laches. Under a statute designed
    to produce a speedy determination of all matters involved, the law will not allow a creditor to wait indefinitely without applying to the court within some reasonable time to compel a suit to proceed. And when the rights of creditors have become barred, such a receivership ceases to be operative for any purpose.
    Every trust in land ceases as soon as the purposes cease for which it is created. — 2 C. L. § 2653.

      Heard April 28.

      Decided May 4.

    Error to Calhoun Circuit.
    This was an action of ejectment, brought to recover the possession of certain premises situated in the city of Marshall.
    The -plaintiff claimed, by virtue of a sheriff’s deed, based upon a judgment recovered against the Calhoun County Bank.
    The defendant relied upon an alleged outstanding title of the receiver of the bank.
    Judgment was rendered in favor of defendant.
    The facts are stated in the opinion.

      S. T. Douglass, and George Woodruff, for plaintiff in error.

      The plaintiff claims under a sheriff’s deed.' The de-' fendant shows no title in himselij but relies for a defense in the outstanding title of the receiver.
    1. An outstanding title in a third person to be a good defense in ejectment, must be a valid and subsisting title — one upon which a recovery might be had in ejectment, — Macdonald v. Scheider, 27 Mis. Ifi5; Moreau v. Dechemendy, 18 Id. 522; Didoinson v. Collins, 1 Swan. 516; Hunter v. Cochran, 8 Barr. 105; Jaclcson v. Hudson, 8 Johns. 888; Salter v. Williams, 10 Geo. 186.

      2. It is doubtful whether any title to the premises was ever vested in the receiver. No assignment was executed to him; and although the act of 1837 declared that the receiver, when .appointed, should be vested, as trustee, with all real and personal estate of the bank (L. 1837, p. 307, § 5), yet a subsequent statute, which was in force when the receiver was appointed, required that all trusts, excepting such as might arise or result by implication of law, should be created by instrument in writing. (E. S. 1838, p. 261, § 37.)
    3.. But the title, if any, which was vested in the receiver, was that of a mere trustee for the purpose of converting the property into money, and paying the debts of the bank and dividing the surplus, if any, among its shareholders, in case it should be proved that the bank was insolvent or had violated any of the provisions of its charter, and was therefore decreed dissolved. And the suit against the bank must be held to have become dormant by failure to prosecute it with reasonable diligence, and the trust in the receiver to have come to an end. All claims against the bank, except the plaintiff’s, even judgments not revived, had become barred by the statute of limitation before our levy was made.
    4. The receiver’s title, if any he had, had been extinguished at the time of the trial of this cause, in 1863, by the adverse possession of the lessor of the defendants for more than twenty-years. Hence it was not, at that time, a valid and subsisting title. — Jackson v. Hudson, 8 Johns. 886.

    5. There was nothing in the pendency of the suit of the Attorney General against the bank to prevent the plaintiff from prosecuting his suit against the bank. — Willard Eq. Jur. 790.

      Wm. H. Brown, for defendant in error.
    The title, if the bank had any, vested in the receiver duly appointed by the Chancellor. — Laws of 1837, p. 806, § 5.

    Such receiver shall thereupon be vested as trustee, with all the real aud personal estate.— Walk. Ch. 90; 28 Maine, 818; 18 Ohio, 298.

    A defunct corporation cannot 'be sued. There is no party to come before the court. The trustee or receiver is the only person who can be brought' before the court. —13 Ohio, 298-9; Act of 1886, L. of ’86, p. 22J¡., § 15, p. 226, §23, 21¡.; 1 Oomp. L. p. 701.

    The receiver’s title had not expired. The suit by Ketchum, the receiver, v. James M. Parsons, commenced in May, 1845, adjourned from time to time until April, 1848> last adjournment. It had not abated. — R. 8- 1888, p. Jfl5, § 82; Id. p. 527, § 1; Burr. Pr. 282; 10 Wend. 5Jfl; 1 Denio, 58; 2 Comp. Laws, 1807, § 1¡908, J909.

    The suit was not abated by death or removal.
    The receiver takes under the law, and not under the corporation.— Edwards v. Receiver, 166; 1 Seld. 820.

   Campbell J.

Plaintiff having obtained a judgment in 1840, against the Calhoun County Bank, sued it over and obtained a second judgment thereon, in November, 1858, upon which he took out execution, on which the premises in controversy in this suit were sold March 19, 1859. The redempfcion having run out, plaintiff’s deed became operative in due course of law in June, 1860. On this he brought ejectment, and defondant, not having shown a valid title of her own, set up in defense an outstanding title under a receivership, the history of which shows that on the 14th day of February, 1844, the Attorney General filed a bill against the bank, under the act of June 21, 1837, to “provide for proceedings in chancery against corporations, and for other purposes.” On this bill an injunction issued at its date, _ and on the 5th of March, an order for appointing' a receiver was made, and on June 4th, upon the coming in of the master’s report, George Ketchum was appointed receiver and qualified. No further steps were ever taken in the case, and the receiver died in 1851. During his life time he had commenced an action of ejectment for this laud against defendant’s lessor, which never came to trial.

In order to understand the points presented, it will be necessary to refer briefly to some statutes bearing upon the legal rights of the several parties.

The Calhoun County'Bank was chartered in 1836, and was to continue in existence until March 1, 1857, but subject to repeal by a two-thirds vote of the legislature. On February 16, 1842, an act was passed to repeal the charters of several banks therein named, including the Calhoun .County Bank, but providing by a subsequent section, that this and three other banks named should be exempt from its provisions, if they should comply with the act to repeal the suspension act, and should continue to do a legitimate banking business. The same statute authorized any creditor to apply to the chancellor for a receiver, and provided that the receivers should proceed in like manner, and have the same powers with receivers appointed under another statute relating to certain other banks, and passed the day before. L. 1842, 56, 61, 62. Those powers were substantially the same conferred by the general acts, which gave receivers the same authority with trustees of insolvents, and vested in them the estate real and personal. — L. 1839, p. 96.

It is claimed by the defense that this corporation became defunct, and that the title to all the realty vested absolutely and in fee in the receiver.

It cannot be seriously contended that the act of 1842 repealed the charter so that a forfeiture could be ascertained without a judicial sentence. The bill filed in 1844, on behalf of the state, assumes the bank to be still existing, and prays forfeiture for cause. Apart from such a recognition, it would be contrary to legal principles to leave such a question open to be determined collaterally.

The receiver, being appointed ex parte, and before a decree of forfeiture, can only be regarded as holding provisionally. It would not be competent for legislative authority to divest a title absolutely before a hearing, for until that time it could not be known whether there was any forfeiture, and, therefore, nothing could be established justifying complaint against the bank. A decree of forfeiture might very well justify the relating back of the title to the beginning <3f the receivership; but, on the other hand, this title, until adjudication, must be conditional and inchoate, and amount to no more than a possessory right for the purposes of the suit.

It must follow, upon’ similar principles, that the receiver’s right, being purely for the purposes of the suit, could not outlast the suit, nor be used for any purposes not justified thereby. It is a statutory, as well as elementary principle, that every trust in land ceases as soon as the purposes cease for which it is created. — 2 C. L. § 2653.

The purposes for which receivers were appointed were, first, to pay creditors; and second, to pay any balance not needed for that object, to the stockholders. L. 1839. 98, 99. But if the corporation was not dissolved, then of course, neither of these purposes could be carried out.

The law directed receivers, immediately upon their appointment, to give notice requiring creditors to appear within forty days after the first publication of notice. L. 1839, p. 97; R. S. of 1838, p. 608. It contemplated that a first dividend would be made within a year, and a second, if there should be assets, within eighteen months, and that whenever, at the time of making a dividend, there should not have been debts enough proved to absorb the assets, the surplus should be given-to the stockholders. L. 1839, p. 99; L. 1841, p. 42-3. By the general laws of the state it was then, and has since been provided, that suits must be commenced within three years after a corporation expires, if not previously outlawed.— R. S. 1838, 229; 1 C. L. 701

It can hardly be supposed that, under a statute designed to produce a speedy determination of all matters involved, a creditor could be allowed to wait indefinitely without applying to the court within some reasonable time to compel the suit to proceed. But it is unnecessary for us to determine how much diligence would be required; for certainly no one could apply when his cause of action was absolutely barred. Godfrey’s Estate, 4 Mich. R. 308. As the charter of the bank expired March 1, 1857, the right of action in every case became barred March 1, 1860, which was more than three months before plaintiff’s deed became operative. As the legal estate had never vested in the receiver, the land was subject to levy and sale. 'Whatever may be the effect, of a temporary receivership in creating priorities, or in regard to possession, we think the statute authorizing lands to be sold on execution, is inconsistent with the idea that, as against the debtor himself, such a levy would not be good when he has made no assignment to the receiver. And when the right of the receiver terminates, and he has made no sale, or other legal disposition of the land, the execution title will stand as if there had never been a receivership.

When the title of plaintiff became complete, the purposes of the receivership had ceased for some months, if not for many years: The chancery suit had ceased to be capable of revival, and must be regarded as abated by the incapacity of any one to further complain of the extinct corporation — the expiration of the charter alone not necessarily leading to this result, but there being no one who could claim to interpose to enforce prosecution.

We think the plaintiff was entitled to have his deed sustained as unaffected by the receivership, and that the ruling which held it invalid, was erroneous.

The remaining question becomes immaterial. The judgment must be reversed, with costs, and a new trial granted.

The other Justices concurred.


author: Graves J.

text:
    Charles C. Waldo v. James B. Simonson.

      Statute of frauds: Promise to pay the debt of another. Where one claimed an interest in certain goods, and agreed not to attach them, in consideration that another claimant who proposed to attach, had agreed verbally to pay him the amount due from the person for whom the goods were bought:

      Held, that this was an agreement to pay the debt of another, and therefore within the statute of frauds.
    The supposed debt subsisted equally after the alleged promise as before. The promise was a mere additional assurance.

      Heard April 29.

      Decided May 4.

    Error to Oakland Circuit.
    This was an action brought to recover a certain sum of money alleged t9 have' been promised to plaintiff by defendant. The plaintiff declared specially, and on the common counts.
    On the trial, plaintiff testified “that in 1866, he and defendant were engaged in buying wool in Holly; that in July of that year a man calling himself Walker, came to Holly for the purpose of buying wool, and made arrangements with the defendants to purchase wool for him. While he was there he had a draft for $5,000, purporting to have been drawn by E. Wendell, on the First National Bank of Detroit, to the order of Thomas McGraw & Co., which draft was indorsed by Thomas McGraw & Co.; that said Walker wished plaintiff to go to the bank in Holly, and help him get the money. Plaintiff went to the bank with said Walker, but they would not let Walker have money except on plaintiff’s indorsement. Plaintiff then, at said Walker’s request, indorsed said draft, in the bank, and they drew $900 on' it.
    That after this, and on the same day, witness aided Walker in buying wool with said money, and they bought about seven hundred pounds, at a cost of about fifty-eight cents per pound; and they paid for other lots, purchased by defendant, and the same was placed with the wool defendants had purchased for said Walker in their warehouse. On the day following it was discovered that the person calling himself Walker had run away, and Charles C. Waldo and the plaintiff went over to the bank and had a talk with the banker, Latourette, about it, and it was agreed, as between themselves, that they should have no law about it. Plaintiff and C. C. Waldo agreed with said Latourette that said draft need not be protested; they would pay it as soon as the wool was sold. Waldo then agreed to pay the plaintiff the amount of money that had been put into the wool, that came from the money got on the draft. Plaintiff had expected to attach the wool on his own account, but upon Waldo’s making that agreement to pay him, he agreed not to do so, and they agreed between themselves that both their claims should be put together, and there should be but one attachment suit about it.
    That the money referred to, was the amount of plaintiff’s money that had gone into that wool: Money on account of the draft, $550.00. He assented to this, and rested easy until towards night. While at the bank Latourette, the banker, said the draft was a base forgery. Waldo said to him, “you hold ou to the draft a few days, till after the wool is sold, aud we will come iu and pay the draft.” The draft was then in Latourette’s hands. He said to his clerk, “lay it away. You need not protest it. These gentlemen will come in and pay it without expense.”
    After that, witness had a conversation with defendant, A. P. Waldo, and agreed that they would come to Pontiac to see about it and secure themselves. We agreed that we would have but one suit about it, if necessary to commence a suit. I went away for a short time, and when I returned I saw the Waldos, and they said they had attached the wool for both our claims.
    Witness further testified: “ Since that, I have had several conversations with them. A. P. Waldo told me he had sold the wool, and C. C. Waldo bought it at forty-eight cents. A. P. Waldo said it was right; I should have my pay; that his father had the wool, and ought to pay for it. He said he and his father were in partnership, and intended to divide tbe profits. Witness said he paid the $900 on the draft to Latourette, eleven days after he had indorsed it. Witness understood that, including this wool that his money paid for, there was purchased, in all, by the Waldos, on account of Walker, about 3,300 pounds; and that Walker had not furnished any of the money for the purchase. Witness said after the wool was sold, he had a conversation with C. C. Waldo, and made a proposition to him to settle up, and C. C. Waldo said he wanted to see A. P. Waldo, as he was equally interested, and he made an appointment to meet witness. Walker was subsequently arrested and his name proved to be Wolcott. ■ No writing passed between the parties relative to this matter.
    The plaintiff also testified “that after the attachment, and before the sale, defendant, C. C. Waldo, come to plaintiff and told him he could get forty-eight cents per pound for the wool, and asked him if he was willing to take that for his share, or interest, in the wool, and the plaintiff told him he was.”
    The defendants introduced testimony tending to contradict said agreement to pay plaintiff any part of the money receiyed on sale of said wool.
    On plaintiff’s request, the court charged the jury:
    1. That the agreement not to prosecute a claim when due, is a sufficient consideration for a promise.
    2. If the defendants, in consideration that the plaintiff would omit to take legal proceedings on his own behalf, to secure the amount paid on the forged draft, or would omit to disturb them in the possession of the wool, if this was of benefit to said defendants, it is an original promise of the defendants, and hot within the statute of frauds.
    3. That a transfer of the claim of Simonson to defendants, of the amount of his claim against Walker, of Wolcott, equal to the money put in the wool by him, or from the draft, would be a good consideration for a promise, and a promise to pay that amount, based' upon such considerations, would constitute an original undertaking, and is not a collateral promise.
    After declining to charge certain requests of the defendant, the Circuit Judge further said that, if the jury should find, from the- evidence, that the defendants promised to pay the said plaintiff the amount of money due from said Wolcott, which went into the wool, from that obtained at Latourette’s bank, upon the promise made by said plaintiff to withhold legal proceedings .for the enforcement of his claim against Wolcott, or not to attach the wool, then in defendant’s possession, and that such withholding legal proceedings' would be of benefit to said defendants; then the promise would not be within the statute, and need not be in writing; but if the jury should find that the -promise was a mere promise to pay' the debt of Wolcott, without any consideration moving between the parties to this suit, of benefit or advantage to said defendants, then the contract would be within the statute, and void, unless in writing; and that the parol agreement not to attach said wool was a sufficient consideration for a promise.
    The jury found a verdict for plaintiff.

      Baldtoin & Loolc, for plaintiff in error.
    1. The assumed contract in this case, if any, was one to pay the debt of another. Simonson testified “that Waldo agreed to pay him the amount of money that had been put into the wool, that came from the money got on the draft.”
    This, in connection with all that was said, does not answer any of the requirements of the statute of frauds. — 2 Comp. Laws, 944-

    The testimony about his not commencing an attachment suit on account of it, amounted to nothing, as Waldo received no consideration from Simonson, and Simon-son parted with nothing. He retained the draft in his own hands. He was the person liable, and there was no liability in any manner attaching to Waldo; and, at the time this conversation was had, Wolcott was not indebted to Simonson, and he (Simonson) had paid nothing on account of the draft. — Brown v. Hazen, 11 Mich. 219.

    This case comes clearly within the statute of frauds. It was a parol promise to pay the debt of Wolcott. The statute was intended for some beneficial purpose, and if it can be varied and held for naught in this case, it would require but very little ingenuity to entirely nullify its provisions.— 2 Comp. Laws, 944; Mallory v. Gillett, 21 N. Y. 411-1 Brown v. Haven, 11 Mich. 219; Jachson v. Ray-nor, 12 Johns. S91; Simpson v. Fatten, 4 Id. 422; Rogers

      v. Rogers, 6 Jones, JR. G. 800; Westheimer v. Peacock, .2 Green, Iowa, 528; Hull v. Soule, 11 Mich. 494; Larson v. Wyman, 14 Wend. 246; Payne v. Baldwin, 14 Barb. 570; Eddy v. Roberts, 17 111. 505; Gurtis v. Brown, 5 Gush. 491; Watson v. Randall, 20 Wend. 201; Nelson v. Boynton, 8 Met- 896; Stone v. Drinker, 2 E. D. Smith, 401; Bresler v. Pendel, 12 Mich. 224; 11 Id. 494•

    The rule is well settled by the whole current of authorities, “that while the old debt remains, the new contract cannot be substituted, but is only a collateral one.” And “ if the liability of the original debtor continue, the promise of another to pay his debt, should be in writing.” — Shoemaker v. King, 40 Penn. St. 107; Rogers v. Brooks, 6 Jones, N. G. Law, 808; Westheimer v. Peacock, 2 Greene, Iowa, 521; Gurtis v. Brown, 5 Gush. 492; Kingsley v. Baleóme, 5 Barb. 189; Brady v. Saclcrider, 4 Sandf. Law, 515; State B’nlc. v. Mettle, 2 Bosw. 896; Farley v. Oleveland, 4 Oow. J82; Barker v. Bucklin, 2 Denio, 57.

    Each of the foregoing cases recognize the doctrine of the extinguishment of the original debt. Such is the rule, and Simonson, in this case, after the 'pretended promise, attached property of Wolcott’s, and took judgment for his whole claim.
    2. The court erred in charging the jury as requested by the attorney for Simonson, “that the agreement not to prosecute a claim when due is sufficient consideration for a promise.” This was an abstract proposition of law not warranted by the case, and tended to mislead the jury.
    The court also erred in charging the jury, “ that if they shall find from the evidence that the defendants promised to pay the plaintiffs the amount of money due from said Wolcott, which went into the wool from that obtained from Latourette’s bank, upon the promises made by said plaintiff to withhold legal proceedings for the enforcement of his claim against Wolcott, or not to attach the wool then in defendant’s possession, and that such withholding legal proeeedings would be a benefit to said defendant, the promises need not be in writing.” In the foregoing proposition it is nothing but an undertaking for the debt of another, for the debt still subsists.
    The court also erred in charging the jury, “that the parol agreement not to attach was a sufficient consideration for a promise.

      M. E. Crofoot and M. S. Brewer, for defendant in error.
    The case at bar is an original contract between the parties, and not collateral; and it is based on a '’sufficient consideration passing between the parties in this case, which was that said plaintiffs in error would pay to said defendant, Simonson, the above sum of five hundred and fifty dollars and fifty cents (the amount of money procured from Latourette, which went into the wool) in case Simonson would not attach or disturb the possession of the wool, but would let it remain and be sold together by said plaintiffs in error, which agreement was fully-performed by said Simonson, on his part. — 2 Pars, on Cont. 805; Farley v. Cleveland, 4 Cow. 182; Myers v. Morse, 16 Johns. Ifi4¡ Meecli v. Smith, 7 Wend. 815; Brown v. Comstock and note, 2 Corns. 225; Nelson v. Boyington, 8 Met. 896; 8, Mich. 51; 12 Id. 10; 16 Id. 478; 21 N. Y. 412; 6 Yerg. 508.

    2. The agreement on the part of said plaintiffs in error was not made for the purpose of benefitting, in any manner, Wolcott (¿or Walker), but solely for their own interest.
    3. Plaintiffs in error proceeded to perform the conditions of the agreement on their part, and went so far as to attach the whole amount of their part, and, in such attachment suit, added to their own claim against Wolcott (or Walker) the sum of five hundred and fifty dollars and fifty cents of the claim which Simonson held against Wolcott, and took judgment for the whole amount.
    4. There was proof tending to show that only one suit was to be commenced against Wolcott, to secure the claim of the plaintiffs in error, and five hundred and fifty dollars and fifty cents of the claim of defendant in error; that, in accordance with said agreement, said Aaron P. Waldo commenced said suit against Wolcott, and recovered judgment for the whole amount of their own claim, and the amount above mentioned of Simonson’s claim, Avith the consent of Simonson — Simonson thereby virtually assigning to said Waldos that amount of his claim against Wolcott, for Avhich they (Waldos) were to pay Simonson, when the wool was sold, $550.50; and they would be equitably bound at least to account to him in proportion to the amount which they succeeded in collecting on their judgment, and this seems to have been the view taken by the jury in the court below.
    2. It is insisted by the plaintiffs in error, that Simonson cannot recover, for the reason that the full amount of his original claim against Wolcott (or Walker) still existed. This, perhaps, might be so had the original indebtedness of Wolcott to Simonson been the inducement or consideration for said plaintiffs’ promise; but where the promise of the newly contracting parties is based or founded on a new consideration, which moves to the promiser, defendant in error is entitled to recover, although the original debt remains. — Mallory v. GilleU, 21 N. Y. 1$2, IfSlfj Farley v. Cleveland, If Cow. lfS2.

    3. The proof shows that, as soon as the defendant in error learned that the draft was a forgery, he immediately went to the bank and requested Latourette not to have the draft protested; that he would pay the money in a few days; to which Latourette assented, and, relying on said promise, he did not protest the draft, and Simonson paid the money to him, according to his agreement. If this be so, then Latourette, by entering into such verbal contract with Simonson, released Wolcott, and relied wholly upon Simonson’s promise, and Simonson had an immediate claim against Wolcott — as much so, as if he had paid Latourette the nine hundred dollars at the time he made the promise.
    4. An agreement with defendants to forbear suit against Wolcott, was a good consideration for the promise of the plaintiffs in error to pay the five hundred and fifty dollars and fifty cents. — Rood v. Jones, 1 Douglas, Mich. 188; Ghitty Gont. 85; 1 Pars, on Gont. 867.

   Graves J.

Assuming that the defendant in error was damnified by forbearing to attach the wool, and that the promise to pay him, imputed to plaintiff in error, was, ujoon sufficient consideration — a view which is essential to the theory of the former — still that promise was, on such theory, one to pay Wolcott’s debt, and within the statute.

According to the construction put upon the transaction by the defendant in error, Wolcott was indebted to him in so much of the proceeds of the endorsement of the forged draft as went into the wool, and it was this debt which the plaintiff in error undertook to pay. Admitting that it is shown by the circumstances that such debt was created, and the defendant in error was legally entitled, before the promise, to seize the wool by attachment against Wolcott for the debt, nevertheless the supposed debt subsisted in as ample a manner after the alleged promise as before. It was neither paid, discharged, nor extinguished. The liability of Wolcott was unaltered, and the defendant in error obtained only the additional assurance of plaintiff in error. ,

By the charge, the jury were left to find for the defendant in error, upon the promise founded on forbearance to attach, in case they should find that such forbearance was beneficial to the plaintiff in error, and this, I think, was, incorrect.

There seems to have been no investigation by the court or jury of the right of defendant in error, on the facts, to recover, under the count for money had and received, any portion of the proceeds of the wool sold on the execution, in favor of plaintiffs in error; and we forbear discussing that subject.

I think the judgment of the Circuit Court should be reversed, with costs, and a new trial ordered.

The other Justices concurred.