text:
    North American Fire Ins. Co. vs. Throop.
    la an action on a policy of insurance against loss to„lumber ancl other property contained in a • building, it is not competent to show by parol that a part of tho lumber was in the yaTd adjoining and was included in the understanding of tho parties.
    Where defendant in such action puts in evidence an application Tpurporting to he signed by tho plaintiff, wherein it is stated that there is an incumbrance of only two thousand dollars on tho property, and attempts to show that it was incumbered to a greater amount, and the plaintiff denies that he signed such statement but admits that he signed a different one, it is competent for the plaintiff to show that ho frequently had told defendant's agent that a greater incumbrance was upon tho property.
    Whore a greater incumbrance exists than is stated in such •’application, and tho defendant’s agent filled it up and tho plaintiff bad previously correctly informed him of the facts, tho estoppel is the same as though an individual insurer were himself present and acting.
    Where on cross-examination a witness is shown a writing and asked if the signature there is his, he is entitled to look over the whole paper.
    Effect of defendant’s not disclosing in his application tho fact that an attempt had^previ* ously been made to fire tho building insured, discussed*
    Error to Lenawee Circuit.
   Opinion bp

Cooley, J.

Action upon insurance policy not produced on tbe trial, having been destroyed by fire. Parol evidence of its loss’and contents. Plaintiff testified that the policy insured him against loss or damage by fire to the amount of $3,000; $500 on building, and $2,500 on lumber, felloes, poles, bows and shafts, manufactured' and in process of. manufacture, contained in said building..

After stating the value of the goods manufactured and in process of manufacture in the building at the time of the fire, he proceeded to say that he had 100,000 feet of lumber, which cost about $24 per M., and was worth $30 per M. About one-third of it was in the building, and the rest was in the yard.— The plaintiff, claimed that the lumber in the yard was covered by the policy and testfied to conversations with the agent of the company, wherein he told the latter that he wanted the whole property insured, outside of the buildidg as well as inside. This testimony was objected to as incompetent, and the Court overruled the objection.

Held, that this was an error. It is conceded that it was not competent to extend or enlarge by parol the terms of the written contract. But it was argued that it came within that class cases, of which Facey vs. Otis, 11 Mich., 213, affords an example in which parol evidence has been received to show the circumstances under which a contract has been made for the purpose of explaining its contents where ambiguous; or of another class, in which it has been held that where parties come to an agreement concerning the meaning.of equivalent words employed in their contracts, the courts will construe them aceordto the understanding arrived at. After an elaborate review of the contract and testimony the Court concluded that the contract covered only the stock of lumber in the building.

The second error relates only to the admission of evidence touching the incumbrances upon the property covered by the insurance. The defendant put in evidence an application, purporting to be signed by the plaintiff and which their witness testified was the application on which the risk in question was taken. This application contained the following questions and anáwers: Is there an incumbrance on the property ?” “ Yes.” “ If mortgaged, state the amount and to whom ?” “ Two thousand' dollars, to Topliff & Day.” Appended to this application was the following understandiug: “ And the said applicant hereby covenants and agrees to and with the said company that the foregoing is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation and value of the property to he insured, so far as the same are known to the applicant, and material to the risk, and the same is hereby made a condition of the insurance and warranty on the part of the insured.”

Plaintiff denied signing this application, but testified that he signed a different one, to which an agreement was appended, which set forth that the “ foregoing is a just, true and full exposition of all the facts, etc,, so far as the same appertain to the risk.” Pláintiff was allo-wed under objection, to testify that he had repeatedly told defendant’s agent in regard to the incumbrance, as they boarded together, and the fact of the mortgages to Hunt, and Topliff & Pay, and to W. H. Stone, together with their seveoal amounts, was well understood between them. The objection to the evidence was that it bad a tendency to vary the written contract, in which plaintiff eov* enanted that there was only one njortgage of $2,000 on the premises, and would, in fact, exempt from the covenant other mortgages.

Meld,that at the time this evidence was offered it was competent. Pefendants had put in a paper which they claimed was the application which plaintiff had signed. Plaintiff denied having signed it, hut admitted having subscribed a different one, whieh was not produced. The question what were the contents of the application actually made and what oevenants it contained was therefore a matter of dispute, and as bearing upon this the conversation between the parties concerned in putting it in writing was, or might be. of material consequence. There was therefore no error in admitting the testimony. But the Circuit Judge went further and instructed the jury that even though the application produced by the defendants was the ODe signed by the plaintiff,'yet if defendant’s agent filled out this application, and the plaintiff had previously given him full and correct information-concerning the incumbrances, then the failure to specify the. other mortgages in the application would not vitiate the policy or preclude a recovery. The Court say that the question raised by this charge has been the subject of much legal controversy, and after an elaborate discussion of the whole matter it was held that the estoppel is precisely the same where the agent of the insuree drafts the papers as it" would be in the ease of an individual insurer who was.himself personally present and acting.

The plaintiff, while upon the stand as a witness, having denied the signature to the application produced by the defendant as the one upon which the policy issued, was cross-examined with a view to test the truthfulness of the alleged signatures. In the course of the examination counsel for the defense presented to the witness a paper folded so as to show only the name of the plaintiff in -writing, and asked him if the signature there pointed out was his. The Gourt allowed the witness to look over the'whole paper.'

Held, That this was corree^. The witness was entitled to all the forms of recognition which the circumstances and surroundihgs afforded.

In the application presented in evidence by. the defendants were the following questions and answers : Incendiarism — Have you any reason to believe your property is in- danger from- It ?” No.” In the blank fohn produced by the plaintiff, and which, was filled up and signed, the corresponding question is as follows : “ Has a building on the site of this been burned? Have you any reason to believe your property is in danger from incendiaries ? If so; how did the fire origihate, and in what office were you insured ?” Plaintiff gave evidence respecting a former supposed attempt to fire the building, and upon this evidence defendants requested the Court to charge that if the jury believe from the evidence that at the time of procuring the policy, plaintiff knew that an attempt had been recently made to burn the premises insure^-and failed to disclose that fact to defendant’s agent, who issued the policy, defendant is entitled to recover, if the jury believe from the evidence that a written application was - made by plaintiff to defendant, upon which the policy was issued, in which application plaintiff stated that he had no reason to fear that his property was in danger from incendiarism, and they find as a matter of fact that he had such reason, then.their verdict must be for defendant. These requests the Court' refused, but charged that if the jury believe from the evidence that'at the time of making the application plaintiff had ceased to' fear incendiarism, and did not think he had any reason to believe that his • property was in danger from it, then the fact that it was dnee fired will riot, vitiate the policy, and was not a breach of warranty; if the jury believe from the evidence that an attempt had been made to búrn .the building covered by the policy sued upon, shortly prior to the application made by plaintiff, and that plaintiff then knew of such attempt and did not disclose it to the agent, and if the jury believe that a knowledge of such attempt, was material to the risk, then their verdict must he for defendant, if the agent of defendant had not sufficient knowledge to put him upon inquiry as to said prior attempt to burn the building.

Held, That the Court erred in , the refusal and in the charge given, first in, assuming that an attempt to fire the building insured might be a circumstance not material to the risk, and second in treating the information which was sufficient to put the agent upon inquiry as sufficient to justify plaintiff in his failure to communicate the facts within his knowledge, notwithstanding his attention was particularly called to the subject at the time the application was prepared and signed.

Held, Also, that the Court erred in charging as requested by plaintiff, that if the jury believe from the evidence that the application" produced by defendant is not the legitimate application signed by plaintiff, and upon which the policy issued, then there is no proof in the case upon which the jury are authorized to find what the contents of this application were., or that there was any warranty in it to affect plaintiff’s right of recovery. The evidence of plaintiff sufficiently shows that he was inquired of concerning attempts at incendiarism, and that he gave a negative answer. It also shows that ho warranted the correctness of his answers so far as pertaining to the risk.

The judgment was reversed, with costs, and a new trial ordered


source: Caselaw Access Project

author: Sutherland, J.

license: Public Domain

text:
    Melissa Hover vs. John W. Hover and Lodowick Hover.
    "When the wife files her bill for divorce, temporary alimony will be allowed, notwithstanding the equities of the bill are denied in the answer. And where the answer on oath charges the complainant with ill conduct, she will be allowed alimony, if such conduct be denied by affidavit.
    An injunction may be granted to prevent the husband from disposing of his property, where it appears necessary in order to secure alimony to the wife. And third parties may be re* strained from disposing of property claimed by them where the bill alleges such property to belong to the husband, and charges collusion between such third party and the husband

      Bay Circuit, in Chancery,

    Motion to dissolve injunction on bill and answer.

      The hill is filed for divorce on the ground of extreme cruelty, and asks for alimony.
    It charges collusion between defendants, to defeat complainant’s application for alimony, by suppressing an unrecorded deed made heretofore by Lodowick 'to the other defendant, who is complainant’s husband, of land worth $1,600, and by holding out and pretending that Lodowick is the owner of certain specified personal property, which is alleged to belong to John "W. Hover. The bill alleges that John was the owner of a certain grey mare, which complainant took into her possession after her husband had ill treated and abandoned her, and which she stills retains. The injunction restrains the defendants from destroying said deed, from selling or disposing, of the land or the personal property, and from re-taking said mare.
    The motion to dissolve is made on three greunds.
    1. That the answer denies all the equity of the bill.
    2. That an injunction can not be made auxiliary to any relief that can be granted in divorce cases.
    3. That this injunction suspends the right of Lodowick Hover to dispose of his separate property.
    The Court will grant alimony only as incidental to other relief. llar. Gh. R., 19.
    Hence if the answer denies the equity of the bill, it negatives the title to that relief to which alimony is incidental — the right to a decree for-divorce.
   By the Court,

Sutherland, J.

It was contended on the argument that the answer denied the form but not the substance of the allegation in the bill. Some of the denials appeared to me at the time to be liable to that charge, but a closer reading has satisfied me that such portions of the answer had that appearance by inadvertence of the pleader; that there was no attempt to. gain the advantage of a denial by a negative pregnant. The denials fully cover the averments on which a divorce is asked.

It was principally objected to the answer that the jurat did -not show that defendants swore positively to the denials of the facts on which the claim of a divorce rests.

As I construe the jurat, they separtely made oath that the anawer wafe true of their own knowledge, except as to (suoli matters as were separtely stated by both on information or belief.

In that view, the equity of the bill has been fully denied in the answer. It was full. It contains such a statement of complainant’s ■conduct towards her husband, as is not only in marked contrast with her statements in the bill, but such as tend strongly to show that he is the injured and outraged party.

The injunction has been obtained to render. effectual a decree for alimony, both temporary and permanent, the former during the pendency of the suit, and the latter afterwards. One is a provision for the time being, to enable the complainant to prosecute the suit, either after a showing of merits, or in spite of a showing to the contrary. The other, as the relief to which she is entitled as an incidental consequence of the deeree for divorce.

If the equity of the bill is fully denied, probably an injunction would not be continued with any view to permanent alimony, but other considerations prevail on'the subject of the allowances during the pendency of the suit. By our statute such allowance may bo granted in the discretion of the Court. 2 Comp. L., § 3234.

A similar statute was in force in New York before our statute ■was enacted. The construction given to it in New York maybe considered as adopted here with the law.

In eases for separation the discretion is sparingly exercised.— There must appear a njoritorious cause of complaint. Worden vs. Worden, 3 Edw., 387; Hollerman vs. Hollerman, 1 Barb S. C. R., 64; Snyder vs. Snyder, 3 Id., 621; Bissell vs. Bissell, 1 Id., 430.

In a recent case in that State, the wife being plaintiff, applied for alimony after answer by the husband, not only denying the acts of misconduct and abandonment set up by the complainant, but excusing his own conduct and sotting up the ill conduct of t,he plaintiff. These allegations were neither denied nor explained on. the motion for alimony, and it was denied. 2 Van Santo. Ch. Pr., 374, citing Carpenter vs. Carpenter, 19 How., 59.

But in cases for divorce, temporary alimony and money to carry on the suit are granted almost of course. Story vs. Story, Walk. Ch R., 421; Wright vs. Wright, 3 Edw., 62; Graves vs. Graves, 2 Paige, 61; Hammond vs. Hammond, 1 Clarke, 151; Bissell vs. Bissell, 1 Barb. S. C. R., 430; Goldsmith vs. Goldsmith, 4 Mich., 285; 3 Barb. Ch. R., 628.

It will generally' be granted to her if she as complainant or defendant denies on oath the misconduct imputed to her in the answer or bill of her husband. The courts will not try her -guilt or innocence on conflicting affidavits. Smith vs. Smith, 1 Edw., 255; Stanford vs. Stanford, Id., 317; Wood vs. Wood, 2 Paige, 109; Osgood vs. Osgood, 2 Paige, 621.

A charge of former or past misconduct or proof of it, does not deprive her of the means of supporting herself during the litigation, and of the means to sustain the suit. 2 Van Santo Ch. Pr., 276.

It would be otherwise, it seems, in case of a present, continuing and notorious misconduct, as living in open adultery while the suit is in progress. Id., citing Fowler vs. Fowler, 4 Abbott, 412; Griffin vs. Griffin, 21 How., 364; 6 Mich., 285.

These considerations are appropriate to a hearing for alimony, and illustrates the propriety of continuing the injunction if it can be regarded as auxiliary to that relief if seasonably applied for.

2. A few remarks Will suffice on the subject of using an injunction to aid in making the relief effectual.

The statute authorizes the Court to act directly on the property of- the husband to secure the allowance which may be ordered. 2 Comp. L., § § 3234, 3248.

If any ground is stated which in ordinary cases would justify injunction to prevent a threatened wrong, it will, on generl principles, justify resort to this precautionary measure in this class of cases.

3. The supposed separate property which the third ground of the motion alleges that defendant, Lodowick Hover, is prevented from disposing of, is the property which the ' bill claims to belong to the husband. The injunction operates no further.

The injunction will be continued until the next term of the Court, and until an opportunity is afforded to ■ make an application for alimony, and no longer than till the decision of such an application, if then made, unless continued by order of the Court.


author: Cooley, J.

text:
    Freeman McClintock vs. Alva C. Lang et. al.

    "Where the complainant’s equityis based’ upon a refusal .to perform a parol agreement to giro a mortgage upon .lands, the Court will not enforce it when such understanding or agreement was indefinite, and no steps wore taken toward repaving such mortgage, and agree- • ing upon its terms.
    "Where notice of taking testimony does not proceed from any party having the right to give it the Court will suppress such testimony as irregularly taken.
    Where a decree is taken for too largo an amount it will he reversed and cause remanded.
    Appeal from Shiawassee Circuit in Chancery.-
   Opinion by

Cooley, J.

The bill in this casp appears to have been filed to enforce an equitable lien on eight acres of land, and also to foreclose a mortgage on ten acres of the same land. In Feb - ruary, 1857, defendant, Alva C. Lang, who is; or was,, the husband of the defendant,. HarrietC., was owner of the ten acres.gf land mentioned, and being then in debt to the complainant, and being also desirous of obtaining from him advances to enable this defendant to build a house and make other improvements on said land, conveyed the. land to complainant by a deed, absolute in form, his wife joining therein, which deed, however, was intended as a mere security for such indebtedness and advances. "While complainant so held said land" as security, said Alva C. Lang proposed to him thát it be re-conveyed, and-said Alva would file the necessary document in the office of the Register of Reeds, setting the same apart as a homestead ; and could then give complainant a mortgage signed by himself and wife to secure the amount due to complainant. And complainant, relying upon this promise, did reconvey the land to said Alva'by deed, dated May, 1859, and the said document was then filed; as promised. The bill alleges that defendant, Harriet C., knew of the indebtedness and advances, and that the same accrued and were made to said Alva in the purchase of said land and in the improvement thereof; and she was also cognizant of the agreement to secure the same by mortgage. The bill was filed May, 1867, and amended August, 1867, at which time the sum of $577 was claimed to- be due and secured by this equitable lien.

While the complainant has been sleeping for eight years upon his rights, the position of the other parties^ has changed- in important particulars. Harriet C. has become the owner of the land, and Alva O. claims to have obtained a divorce from her, and now appears as a witness in this case to make out the necessary facts to establish the lien. The present, suit was not instituted until the debtor defendant had parted with the property to be charged, and he comes forward with his own testimony to establish a lien upon his own debt upon lands owned by his co-defendant, with whom, in the meantinie, he has had difficulties sufficient in his own opinion to warrant a divorce.

But the Court refused to put a decision of the case upon the laches of the defendant, and held that the bill so far as this equitable lien is concerned, is in the nature of a bill for the specific perform-sneer of a contract. The complainant’s equity is based upo» tbe refusal to perform a parol agreement to give a mortgage upon land's. Or» a review of this branch of the case the Court held that the alleged understanding was very indefinite at best, and that no steps were ever taken toward preparing a mortgage or agreeing upon its terms.— The claim was therefore denied.

Upon the other branch of the case a question of practice becomes important. Mr. Lang interposed a defense to the mortgage,' and took evidence in support of such defense. This evidence, how-ever was suppressed by the Court as irregularly taken, because, the notice of taking the same did not proceed from, any party having the right to give it.

Held, That the Circuit Judge properly suppressed it. • The notice did not come regularly from the solicitor.

The evidence of the defense being properly suppressed the Court below had-no discretion but tQ give decree for the amount of the inortgage. But the decree actually made having been too great, it .must be reversed and the cause remanded, with direction to enter a décree in accordance with these views. A reference is ordered for the purpose of accounting.


text:
    John D. Millis vs. M. Lamont Bagg, Administrator of F. C. Myrick, Deceased, and others, (his widow and heirs-at-law.)
    Tlie personal representative of a deceased mortgagor is not a necosdary part)' to a foreclosure bill.
    Whore the Register of the Court is appointed guardian ad litem, on motion of the complainant over the infant heirs of a deceased mortgagor, ponding proceedings for tho foreclosure of a mortgage, his acceptance of the trust should, be implied from, the tact of appointment -, ami in case of his failure to answsr, tho presumption is that there was no valid defence to the lnll.
    Whore the Register of the Court is appointed, on motion of tho complainant, guardian ad lilem of infant heirs of a deceased mortgagor, in a proceeding to foreclose the mortgage; and neglects to answer the bill, and a sale is made in pursuance of ft decree of foreclosure, the proceedings will not be set aside unless some wrong has bo^n done, but the i regularity may be cured by filing the answer nunc pro tunc.
    Tho reference to take proofs under Clu rulo 92, may he to any commissioner in tho State ; and it is not necessary that such commissioner shall reside in the county or circuit in which the Oourt making the order sat.

      Bay County, in Chancery.

    Petition to set aside decree and sale in a foreclosure suit.
   By the Court,

Sutherland, J.

The bill was filed in this case May 17, 1801, to foreclose a mortgage made by Myriek, deceased, in his life-time to complainant. After personal service of subpoena on all of the defendants, the infants omitted to procuro the appointment of a guardian, ad litem, and the eomplinant obtained an order, nisi, July 12, 1801, for the appointment of tho Register of the Court.— This order, after due service, was made absolute July 12th of the same year. January 7,1862, M. Lamont Bagg resigned his trust as administrator, and was discharged by tho Probate Court. September 23, 1803, an order pro confesso, as to all the defendants was entered, and for the usual reference to take proofs and compute the amount due, to a commissioner of Oakland County. A decree was made May 3,1864, founded on the proofs so taken.

The Register did not expressly consent to act as guardian, and -never filed any answer; nor does the record show any act done by him in that character.

On the 6th July, 1864, a salé was made' for more than sufficient to satisfy the decree. A surplus of $323 87 was reported.

At the next term, James Y. Worden filed his petition to set aside the decree and subsequent proceedings, for irregularity, showing therein that he had been appointed administrator de bonis non, of said Myriek, deceased, and guardian of said infant defendants, by th® .Probate Court of Oakland County, and stating further that “ to the bill in said cause and the case made thereby, as this affiant is informed and verily believes thero is a good and substantial defence on/ the merits to a large part if not to the whole of the claim therein named-.”

The following irregularities are insisted upon

3. The decree was taken after said Bagg ceased to be administrator.

2. No guardian, ad litem, was appointed for the infant defendants, the Register not having acted or consented to act.

3. The reference to take proofs, &e., was made by a common order to a commissioner of Oakland County.

The complainant insists that the personal representative of the deceased mortgagor was an unnecessary party, and that the petitioner has no right to make this application in behalf of the infants, in virtue of being their guardian by appointment in the Probate Court.

1. As the bill was not framed to subject the personal estate to the payment of any deficiency, and no deficiency in fact exists, the sale having produced a surplus, the personal representative was not a necessary party. Abbott vs. Godfroy's heirs, 1 Mich., 178. And the decree as taken does not purport to affect him, and as executor it can not. The suit was not defective for want of .proper parties, as the heirs-at-law of the mortgagor were before the Court. Hence if the decree against the administrator were set aside a re-hearing would not for that reason alone be ordered.

2. The Court would consider the petition in behalf of the infants if they have no guardian ad litem, and if they had, it would, if misconduct were alleged against him, for otherwise the infants might be remediless.

If the formal consent of the Register of the Court to act as guardian, in the absence of any subsequent act implying acceptance was requisite to make the appointment complete and to attach to him the responsibilities that appertain to the office of guardian, he was not appointed, and the second objection must be held well taken, for it is well settled that no decree can he taken against an infant defendant, unless a guardian has been assigned him. Jones vs. Crist, 3 A. R. Marsh., 143; Shields' heirs vs. Bryaat, 3 Bibb, 525; Roberts vs. Stanton, 2 Murf., 129; St. Clair vs. Smith, 3 Ham., 363; Daniels vs. Hannegan, 5 J. J. Marsh, 49; Cravens vs. Dyer, 1 Litt., 153.

Whether the appointment is made on the petition of the infant or that of the complainant, the duty and responsibility of the guaran are the same. When procured in the former mode the statute expressly requires the consent. Sec. 4829 Comp. L.; See precedents, 2 Barb., Ch. Pr.; Hoff. App. No. 66.

When the appointment is made, however, on the application of the complainant, the statute is silent, and the precedents in New York, where the statute was similar, do not show consent, and it is said to be unnecessary when an officer of Court is appointed, which is usually the case, because it is made his duty to. act by the rules of Court. 1 Van Santo Ch. Pr., 154; 1 Barb. Ch. Pr., 85; Chan. Rule 143; Sup. Co. Rule 61.

We have no such rule, but the authority of the Court over its officers is as full in an individual case to. require the performance of such a trust as to make a general rule applicable to all eases. See Sec. 3475, Comp. L. This power is not abridged by the statute authorizing the Supreme Court to make rules governing the practice, except on subjects covered by rules so made. Hence the acceptance of such a trust should be implied from the fact of appointment.— The performance of it is exacted as a duty, and there is no option to decline.

After the appointment it was the duty of the guardian to examine into the circumstances of the case so far as to enable him to make the proper defence when necessary for the protection of the rights of the infant. 1 Barb. Ch. Pr., 85. And he is liable for damages resulting from his neglect to do so. 2 Paige, 304. If it appear on such examination that there is a clear case against the infant, he may decline to bring proceedings in the cause. Levy vs. Levy, 3 Mad., 131, 245. In the absence of any showing to the contrary, it should be presumed that the guardian refrains for sufficient reasons.

It is usual even where there is no defence to file a general answer for the infants, submitting his right to the judgment of the Court. But since the filing of such an answer where there is no defence dis. penses with no proof to establish the facts stated in the bill, (Wright vs. Miller, 1 Sandf. Ch., R., 103, 118; Baker vs. Woods Id., 129, 134;) it is merely formal and though it may be irregular for the complainant to proceed without, (3 Edew, 414,) yet unless some wrong is done, the Court will not vacate the proceedings after a decree and sale, (See Kellogg vs. Putnam, 11 Mich., 344,) but will permit the answer to be filed nunc pro tunc. Scott vs. Clarkson, 1 Bibb, 277.

There is no proper showing of merits. Walk. Ch, R., 385.— There is no reason given why the guardian ad litem, did not prepare an answer showing the defence if any there is, arid present the petition accompanied with that answer. It can not be presumed that he declined or disclaimed the office.

3. The reference to the commissioner of Oakland County is not irregular.

Commissioners act as Masters in Chancery in executing such an order. That office, in this State, was local only as to the territorial limits within which the Master was required to act. R. S. 1846, p. 426, Sec. 55.

The new Constitution- having abolished the office, the Legislature in 1851 enacted that the several Circuit Court Commissioners within their reapective counties, should be competent to discharge all such duties as had heretofore been performed by Masters in Chancery in this State, according to the practice in chancery proceedings, and all such other powers as shoqld be conferred upon them by the several, Circuit Courts within the. jurisdiction, and under the orders of which they might act. 2 Comp. L., Sec. 3981.

Rule 92 provides for entering an order of course, referring it to a commissioner to take proofs and compute the amount due preparatory to hearing the cause. Unless, therefore, there is a limitation of j urisdiction implied from the history of the office, or the foregoing statutory provisions, so that no commissioner can be named in or execute such an order, except when made by the Court sitting in his own county or as substitute, this rule is sufficiently general in its terms to allow, any commissioner in the State to act.

In England, whence we derive the office, it existed as early as we have -any memorial of the Court. The twelve Masters, ineluding the Master of the Foils, were assistants of the Lord Chancellor, and no more confined in respect to territory than the Court itself. See Intro. to Mas. in Chan., by Hoff., p. 18, 1 Smith. Ch, Pr., 9, 16.

In New York, while the ehancery system was in vogue, Masters were appointed, and required to reside in the county for which they were appointed. 1 N. Y. R. S., 101, Sec. 9; 1 Hoff. Ch. Pr., 21, The statute defining their powers- was like ours, except that it did not contain the clause “ within their respective counties,” which is immaterial to our present inquiry. Rule 99, of the N. Y. Chancery, directed that an order when entered of course should be exeuctod by a Master residing in the same" county with the solicit.» who obtained the order, unless another should be agreed upon.

If the reference was by a special order' or decree, it might be made to any particular Master by name, or to any Master in a particular .county of place, in the discretion of the Court, thus recognizing no restriction to the county or Circuit where the Court sat.

Petition denied.


author: Graves, J.

text:
    George H. Russell vs. James A. Sweezey.

      A granito© of panels having notice of a prior unrecorded deed of such lands fa not a dona Jtde purchaser as against such deed and title.
    A deed is not void for uncertainty of description because it does not expressly specify that the land is in this Stato, where the circumstances cfcariy indicate the situation and location of such land.
    Error to Barry Circuit.
   Opinion bp

Graves, J.

Plaintiff in error brought^action of ejectment against Sweezey for a certain tract of land in Barry County. The case was tried by a jury, who returned a verdict- for the defendant, upon which judgment was • entered; It appeared on the trial that one Hosea B. Huston obtained a patent from the United States in May, 1839. Plaintiff proved that th<? patentee, died' *t Kalamazoo ia 1849, leaving Mary A. Huston, his widow, and three children sole heirs at law. He also gave in evidence, the record of a deed for the lands described in the patent, bearing daté January, 1867, and executed by the aforesaid widow and heirs of Huston to plaintiff. Defendant offered in evidence the record of a deed bearing date September, 1847, ira n the patentee and his wife to Nathaniel M. Brown, purporting to convey the above described traet. This deed appears to have been acknowledged before a Justice of the Peace, and to have been executed in the presence of the acknowledging officer, who signed it 'as a subscribing witness. It was placed on record July 10, 1869. The admission of this record as evidence in the case was objected to by the plaintiff on twogrounds First, that the deed was not recorded until after the commencement of this suit, and second, that being unrecorded at the time of the purchase by the plaintiff, dt was void as against the prior recorded title of the latter. The evidence was admitted and the plaintiff excepted.

After a full review and discussion of the facts in the case, the Court concluded that it appeared on tho trial beyond doubt, as it appears on the record; that when Bussell purchased, and when he got his deed, he had notice of the prior unrecorded deed of Brown, and of Sweezey’s title, and hence he was not a bowa fide purchaser as against such deed 'and title.

Upon the argument, plaintiff’s counsel contended that this deed to Brown "was void for uncertainty of description, because it did not expressly specify that the land was in this State.

Meld, That there is no force in the objection. The grantor ia that deed was the patentee of this land, and he is described in the deed as a resident of the county of Kalamazoo, which adjoins that in which'this land is situated. ■ The grant was executed and acknowledged in the county of Kalamazoo,-and before an officer, of the county. The grantor is not shown to hav¿ been in any other State or to have owned any other land... The patent specified the land as being in the district of lands subject to sale at Kalamazoo, Mich, and the description in the deed in respect to the section, and the subdivision of it, and also in respect to the township and range, agrees with the patent.

The -case made on the trial was so clear and complete against the plaintiff that it would not have been error if the Court had directed the jury to find for the defendant.

The judgment must be affirmed with costs.


text:
    Honoria Brown vs. John Brown.
    In a toil filed for divorce trader Sec, 3228 Cvmrp. Lain, for refusal to support, it is not necessaiy to aver any cruel treatment except what is involved in the gross, wanton and cruel neglect and refusal of the defendant to support his wile, he b eing of sufficient ability.
    Either party during the period allowed for taking proofs, may introduce any relevant testimony at any time before the proofs are closed.
    Appeal from Ionia Circuit.
   Opinion by

Cooley, J.

The hill in this base was filed to obtain a limited divorce and for alimony. The parties were .married November 10,1845, and the hill aVers, as the causefor divorce, inhuman and cruel treatment for the last three,or four years, and neglect t(^ support for the last year. The hill contains further allegations, showing the pecuniary ability of the defendant to support his wife well, and that she has always been faithful and devoted in her marital relations.. It was hot claimed by the' complainant that this bill would warrant a divorce for extreme cruelty, nor was the evidence in the case taken on any such theory." Oh the contrary, all the evidence is directed to the question of a gross, wanton and cruel neglect and refusal to support. A question is made in this Court of the sufficiency of the bill to warrant any decree fbr complainant, and the testimony taken appears to'have been objected-to on the ground that no case was made by 'the bill,- because the cruelty charged was hot set out with more particularity.

Meld, However, that a hill for divorce on the ground of refusal to support is sufficient. In suing for divorce on that ground it Was not necessary to aver any cruel treatment,’except what was involve 1 in the gross, wanton and cruel neglect and refusal of the defendant to support his wife, he being of sufficient ..ability. It appears, however, from the evidence, that the complainant is living ¿apart from the defendant and that while he reiuses to furnish her the means of support away from Lis home, he nevertheless expresses a willingness to receive <md support her there. The bill was sufficient, the pleadings were correct, and the evidence was admissible under them..

The Court took the occasion to remark upon a matter of practice. It seems that the Circuit Court Commissioner regarded it as his duty to hold the parties to the same order of proof to which they would be held in h, trial at law, and he accordingly refused to take cortain evidence, because, though relevant to the party’s case or defense, it was not brought forward by the party .until the time for rebutting testimony', and was not rebutting in character.

Held, That the Commissioner lias mistaken the practice. Either party, during the period allowed by the rules for taking proofs, hi s a right to take his testimony in any order he may choose, and the complainant is not precluded from offering proof in support of his original case by the fact that the defendant has gone into or gone over his defense. The same is true of the defendant. He may put iu any relevant testimony at any time before the proofs are closed.


text:
    Alexander MacRoberts and William Nesbit vs. Alvin Eastman.
    Whore the defendant pleadR in abatement tho mis-joinder of the plaintiffs, the plaintiffs hold the affirmative and must begin.
    An agent may bind an undisclosed principal, and may so negotiate for him os to make him a party to a contract without naming him.
    Where issue is joined upon a plea in abatement, and the decision is adverad to tho plea— wlidther interlocutory judgment should be entered and plaintiffs damages be subsequently assessed, quire.

      Saginaw Circuit, in Chancery.
    [This case was decided prior to the adoption, by the Supreme Gourt, of the recent rule as to pleas in abatement.] — Rep.

      Grout & Handhett, for Plaintiffs.

      Sweet & Foote, for Defendant.
   By the Court,

Sutherland, J.

This is an action of assumpsit, and the defendant pleads in abatement the misjoinder of the plaintiffs.

On this issue the plaintiffs hold the affirmative and must begin, Davis vs. Evans, 6 Car. & P., 619. The direction on the trial was different, but neither party suffered any prejudice.

The contract sued upon was a verbal contract, negotiated by an agent, (Grout,) or by MacRoberts, one of the plaintiffs. The time and circumstances satisfy me it was conclued with Grout. He written instructions which clearly import that both plaintiffs were in fact to be interested in the transactions. Grout testifies very confidently that in the negotiation with the defendant, he disclosed to defendant that MacRoberts was not the only person coneerned, but did not disclose who else was represented by him. This is denied by the defendant. The fact whether there was such a disclosure or not is immaterial. An agent may bind an undisclosed principal, and may so negotiate for him as to make him a party to a contract without naming him. Taintor vs. Pendergrast, 3 Hill. 72; Hogan vs. Sherb, 24 Wend., 458; Grogan vs. Wade, 2 Starkie, 443.

It therefore being shown that the plaintiffs were , partners, and the contract in question made for them, they were entitled to sue on it jointly, and the defendant’s plea is untrue.

Judgment final must therefore be rendered in favor of the plaintiffs for their damages to be assessed. Green’s Pr., 161; 3 Wend., 258; 6 Id., 649; 19 Id., 527; 2 Wils., 367.

The question has arisen in my consideration of the ease, whether interlocutory judgment may be rendered for the plaintiffs and damages be subsequently assessed, and then final judgment rendered.

In Eechern vs. Le Maitre, 2 Wils., 367, this course was not permitted, but for a reasonfwhich has now ceased to have any force, namely, the loss of the remedy by attaint for a false or erroneous verdict. In Haight vs. Holley, 3 Wend., 258, after the jury had determined the fact in issue on the plea in favor of the plaintiff, he proceeded before the same jury to assess damages. In Clement vs. Lewis, 7 Eng. C. L. R., 740, judgment final or an inquisition of damages was reversed, because the jury that tried the issue on the pleadings had not assessed the damages. This occurred in 1822, though it was suggested that the writ of attaint had been obsolete for nearly two centuries.

The practice of setting aside verdicts Upon motion bad superseded the harsh remedy against the jury, and Blackstone had seen but few instances of attaint in the books later than the 16th century.— 3 Black. Com., 405. But it was not abolished until the reign of Geo. IV. New Am. Cyclo., title Attaint.

"Where the question of the amount of damages arises with the question of the right to damages, they should undoubtedly be decided together in one verdict or decision, but if the inquiry in respect to the amount follows the decision of the right, or may follow it as the subject of a second finding, especially if conducted before the Court without a jury, there is great propriety in allowing it at a different time to suit the convenience of parties. To do so there should be an interlocutory judgment to proceed upon. The plaintiffs, at their option, may adopt that course in this case.


author: Campbell, Ch. J.

text:
    Edward S. Geary vs. The People.
    Exceptions toa charge must point out specifically the errors complained of.
    Thq law of 1809, requiting charges to b| written does not operate to make the charge a part of ' the record so us to be reviewuble as an oniry.
    The interest or bios of, a witness may be shown, us bearing upon the credit of the witness.
    Error to Eaton Circuit.
   Opinion by

Campbell, Ch. J.

Plaintiff in error was charged with an assault with intent to commit' rape, and was convicted of an assault. There was one general exception to the entire charge of the Court, pointing out no particular matters complained of in it.

Held, That exceptions to a charge should be specific enough to show what parts of it are regarded as error, or bow it injuriously affects the rights of the party excepting.

It is claimed under the law of 1869, requiring charges to be written, 'that the charge becomes a part of the record and is reviewable as an entry.

IMd, That there is no change ¿brought about by that law in the nature or functions of a charge, It merely substitutes a written charge for an oral one. But the charge can.only be brought up as it would, have been formerly by exceptions, or case made, and the exceptions must be taken in the same way as before,

The only errors properly assigned relate to the exclusion o.f certain testimony designed to impeach the credit of the complaining witness. She had denied having conversations'with various persons concerning her expectations of receiving some profit out of the trial! When the defendant sought to show that she had made statements to that effect the Court refused to permit the proof to be made.

Held, That the proof should have been admitted. The interest .01* bias of a witness has never been regarded as irrelevant. It goes directly to his credit, and must determine with the jury how far facts depending on his evidence are to be regarded as proven.

The judgment must be reversed and a new trial granted.


author: Campbell, Ch, J,

text:
    Ellen Donahue vs. Jacob Klassner.
    An estoppel by land contract arises from tho fact that possession which wouI$l not have been acquired without it, cannot be honestly bo ptaiaed in defiance of it,
    A deed was made and acknowledge in N, Y., in 1843, without witnesses. Clerk’s certificate na to acknowledgment, was made in 183li, but does not purport to have been made by a Clerk of a Court of record. 12eW,*tImtthe deed was invalid.
    Tho fact that restitution of promises is obtained from a judgment in an action of ejectment, does not change the burden of proof on a subsequent trial of the same cause.
    Error to Berrien Circuit,
   Ojomiori bí/

Campbell, Ch, J,

This is an action of ejectment, and the prinoipal inquries in it relate to the validity and 'construction of a conveyance and, the effect of a contract by way of estoppel' Plaintiff below, in order to prove his title, showed a patent from the United States to D. & J. Petrie, a deed from the Petries to one Barns, and from Barns to O. F. Howe. He introduced evidence further to show that Howe had made a contract to sell the land to Philip Donahue, under vrhom defendants below claimed as heirs-at-law, and that Donahue, failing to'pay what was due, Howe assigned the contract and quit-claimed the land to plaintiff.

Plaintiff below testified that Philip Donahue was in possession claiming ownership before he took the contract by conveyance from one Jones, who had purchased of David Qonant, and that Conanthad improved it, and had entered under a tax title. The first question arising was whether Philip Donahue was es-topped by-the land contract from disputing plaintiff's title.

. Held, That he was not. lie got no possession from Howe, but simply'retained a possession he already claimed under color of right. A person in-possession is not debarred from fortifying his title by getting in any outstanding titles which he can purchase. The most satisfactory■■ doctrine in regard to the loundation of estoppels by land contract, where there is no independent or special covenant standing as a sufficient foundation, is that the estoppel arises from the fact that the possession which would not have been obtained without itkiannot honestly be.retained in defiance of it. But if not so obtained, the only thing that could be derived from the contract would he the title, and, of course there would be no justice in compelling a man in possession to give up to one who has no right, and who could not therefore fulfil his own contract. In a suit on the contractjtself, the vendor would not recover without ability to perform on his part. Plaintiff’s title, therefore, becomes of primary importance.

Held, That the deed from Petrie to Barns, was invalid. It was made in New York -without witnesses, and acknowledged in 1813. The clerk’s certificate, verifying the acknowledgment was made in 1856, and does not purport to have been made by the clerk of a court of record. -This disposes of the case, but some rules were laid down to guide in a new trial.

Held, That there is no foundation for the claim, that the fact that restitution of the premises was obtained by .plaintiff below on a former judgment changes the burden of proof oh a new trial and compels the defendant to prove his own case. ■ Upon the new trial- the case must be tried justas if it had never been tried before. The deed of Barns is also objected to.as not appearing to cover the land' contained in the descriptive, part, of the declaration.

Held, that it is evident that but a small portion, if any of the land described in the declaration is covered by this deed.— And as there is no evidence in the case tending to identify the boundaries at all the deed was not available as a source of title upon the facts as returned.

Judgment must be reversed, and a new trial ordered.


text:
    Emma Leora Griffis and Theron Griffis, Infants, by their next friend, and Austin Griffis, vs. Samuel Stoddard, Major F. Lockwood, Daniel D. Barney, Mariette Barney. Smith M. Brown, John Bennett, Andrew S. Taggett, John Pike and Alanson Griffis.
    Hill of complaint multifarious.
    It is a general rule that equity has concurrent jurisdiction with the courts of law in cases cf fraud; but not to impeach a will for fraud or * incompotcney of the testator, though the court of equity may retain a bill involving súchel question, to obtain the decision of the proper court, and then to decree accordingly.
    Where there is concurrent jurisdiction, the right to maintain jurisdiction attaches to the tribunal that first exercises it.
    I’robate Courts have jurisdiction to try all questions touching the validity of wills of personal as well as real estate.
    The judgment of every court on matters within its jurisdiction, is conclusive on every other

      Saginaw Circuit, in Chancery.

    General demurrer to hill by defendants, Stoddard, Lockwood and Barney.
   By the Court,

It appears by the bill that Julia W. Griffis, died on the 14th day of May, 1863, possessed off certain real estate situate in the county of Saginaw. That on the 1.4th day of February, 1863, she made a will disposing of said real estate, and on the 6th of April following, a codicil. That since the death of the testatrix the will and codicil have been proved and allowed by the Probate Court of said county, and letters testamentary issued to defendant, Stoddard, the executor therein named.

The infant complainants claim as heirs-at-law, and Austin Griffs under a conveyance from defendant Griffis, of his alleged estate by the curtesy as the husband of the said Julia W. Griffis. As to' defendants Stoddard, Brown, Bennett, Taggett and Pite, the complainants seek to have their respective claims as heirs, and by the curtesy, established, and to avoid the will, on the ground of fraud and incompetency of the testatrix, and the codicil on the ground that the testatrix did not execute it, and that it was not seasonably tiled in the Probate Court to render effectual certain eleemosynary bequests. Comp. L., § 2032.

The other defendants are not alleged to claim under the will, but under a lease executed in her life-time by Mrs. Griffis and her husband, and which complainants ask to have set aside for uncertainty, and because of her alleged lunacy when it was executed.

Austin Griffis states no case for relief in his owjb behalf against the defendants claiming under the will, and has a perfect remedy at law, if any where, on the case stated against the other defendants.

II has no interest in the question relating to validity of the will •and codicil. They only affect the claim of the other complainants.

The bill is manifestly multifarious. Story’s Eq. Pl., Sec. 271; 1 Dan. Ch. Pr., pp. 395, 396, 397; Swift vs. Eckford, 6 Paige, 22, 28.

It is a general rule that equity has concurrent jurisdiction with the courts' of law in cases of fraud. But it does not exist to impeach a will for fraud or incompetency of the testator. 1 Story’s Equity, Sec. 184 and note; Adams’ Equity, pp. 175, 248; 15 Ohio, 345; Bennett vs. Vade, 2 Atk., 324; Gingoll vs. Horne,, 9 Sim., 539; Jones vs. Frost, 3 Madd., 1; Jones vs. Jones, 3 Meriv. 171; or at all events not unless it appears that there is not a perfect remedy at law. Brady vs. McCosker, 1 Comsk., 214.

It seems the Court may retain a bill involving such a cree accordingly. Colton vs. Ross, 2 Paige, 396; Van Alst, vs. Hunter, 5 John. Ch. R., 148; Gaines vs. Chew, 2 How., (U. S.,) 619, 645; Muir vs. Trustees, 3 Barb. Ch. R., 477.

If the ease of wills did not form an exception to the concurrent jurisdiction of equity, this Court would have no ground of jurisdiction to interfere after another court having a like jurisdiction had cither taken cognizance of the case or decided it. Where there is a concurrent jurisdiction, the right to-maintain jurisdiction attaches to that tribunal that first exercises it. Stocton vs. Williams, 1 Doug., 565.

The Probate Court has a dear acknowledged jurisdiction to trv and decide all questions touching the validity of wills of personal, its well as of real estate. Chap. 92, Comp. Laws.

The judgment of every court on matters within its general or limited jurisdiction, whichever it may be, is conclusive and binding on every other court. 1 Greenl'f Ev., Secs 522, 525, 550.

The determination of the Probate Court allowing the will and codicil in question is of this conclusive character. This effect not only follows from the general ptinciple just stated, but'is directly declared by the statute. § 2844, Comp. L.

The demurrer allowed.


text:
    Dwight G. Holland and Jane E. Derby vs. Oliver Stewart.

      II. Joslin, for Plaintiffs.

      Wm. A. Lewis, for Defendant.
   By the Court,

Sutherland, J.

The defendant purchased lime of the plaintiffs, assuming to be the agent of one Tlios. K. Mosher. The plaintiffs on his representation charged the lime to Mosher, but on his denying the agency of the defendant, plaintiffs communicated the lact to defendant, and he promised to pay for the lime. Defendant was not authorized to purchase the lime on the credit of Mosher.

The defendant is himself liable. Not having authority to bind the person in whose name he assumed to act, he is liable himself as principal. 19 John, 63, 558; 33 Id., 58, 307; 1 Cow., 536; 7 Cow., 454.

Judgment for plaintiffs.


author: CumsTiANcr. J.

text:
    Simeon Hovey vs. James Smith.
    la a deed of land? belonging to tbe hnshand, though the wif* join in the dried, with covenant» yet the covenants will be held to be th*w« of the htuband alune. Declaration — Desorij»tion of lands in, &c. — Allegation as to covenants.
    Error to ,St.‘ Clair Circuit.
   Opinion Ip

CumsTiANcr. J.

This was a question of cove nant brought upon the' covenant of seizin and good title contained in a deed of conveyance of land. The questions involved were upon exceptions taken to the admission of evidence.

Ildd, That there was no error in admitting the deed claimed to. contain the covenant declared upon. The objection was that it was inadmissible under the declaration, and the objection was sought to be sustained on two gronnds .

1. That the deed appears to have been executed by different parties, or by another party beside the one described in the declaration.

2. That the description of the land which the deed purports to convey is different from that described; in the declaration, as eonveyed by it.

The deed offered was executed by the defendant and his wife to the plaintiff. But it appears from the evidence that the land was not the individual property of jthe wife. The only use'in the wife’s joining in the deed was to release her contingent right of dower. Her covenant would be void, and any covenant made by the two would be the sole covenant of her husband. The deed was the conveyance of the husband, the covenant was his, and there was therefore no material variance in the declaration.

The declaration purports to describe a part of the land described'in the deed, and the covenant was alleged to be broken only as to a part, of the land. The declaration alleges the conveyance to have been of “certain piece.» or parcels of land situate in the Township of China, ¡it. Clair County, among which Were the following pieces or parcels of land.” and then follows the description ot eighteen acres by metes and bounds, a description, however, Which does not, at least in words, correspond with any particular piece of land as described in t he deed. And this is the variance in the description to which objection is taken. .

Helds That whether the lands , described ih the declaration Were included in the lands described in the deed was properly a matter of proof. It was not required to describe in the declaration iii the words of .the deed, unless the pleader undertook to give the description of the title m hare verba, but was always matter of evidence outside of the deed to bring the land described in the declaration within the description contained in the deed.

Another ground of objection was considered by the Court,, which was as follows: The covenant was in form plural, applying to the Wife as well as to the husband! and yet it was in law the covenant of the husband alone. It was also, in form that ■they were well seized of.the premises, etc. Though the declaration sets this out as the covenant of the defendant, yet it states the seizin covenanted for,asinthe deed,that they were Well seized etc. As the declaration thus leaves it entirely uncertain who Were seized, not mentioning the wife at all in this connection it woiild clearly have been bad upon demurrer. But after trial and verdict, the Court held the declaration good, as there was no verbal variance between-the covenant set out in the declaration and that contained in the deed, it appearing from tne record who the parties were,entering into the covenant, an 1 it being dcemed.by the Court that the word “ they” was simply a «lenca! error for the Word “ his ” It probably arose from tho «se of the printed blank, in which the plural is employed It was therefore held that there was'ho error in tho admission of the deed.


author: Woodruff, J.

text:
    Egbert E. Keeler vs. Hugh Delano.
    Ja flBsnmpsit on a promissory note secured by a chattel mortgage, the -áefénce-being want of consideration for note and fraud in obtaining mortgage, whoa the mortgagee had sold tt *• mortgaged property upon due public notice, and the verdict indicated that tho jury hud given the defendant the v.alue of the property mortgaged, Held, that thg verdict was-against law, aud there being no objection t® tho charge of the Court, a new trial wa* granted on payment'of costs.

      Ingham Circuit,

      October, 1870.

      Geo. M. Huntington, for Plaintiff.

      31. J). Chatterton, for Defendant..
    Motion for new trial.
   By the Court,

Woodruff, J.

-This was an action brought on a promissory note given by defendant, J. D. Wheeler Co., October 12,1867, for $125, payable September 12, 1868, with interest at ten per cent, and secured by a chattel mortgage executed by defendant and wife on various articles of personal property, some if not all off which -were by law exempt from execution.

With bis plea of the general issue, the defendant gave notice of set off, want of consideration and recoupement.

The actual defence sought to be made on the trial was want of consideration, the taking of other property than was admitted tr> have been taken on the chattel mortgage, the amount so admitted to having be received upon the' security being $22.

The verdict of the jury was for the defendant for the sum of $40. There was some proof going to show that other property of the defendant had disappeared, hut no proof that it was taken or came to the hands of the mortgagees or the plaintiff, and that the property sold on the mortgage was of more value than what was realized by the sale, hut there was no showing and no claim that the sale itself was not conducted fairly.

It is manifest from this statement of the case as made on the trial, that the jury in arriving at their verdict must have charged the defendant with the property taken on the chattel mortgage with out regard to the sale, since this is the only reasonable theory of their verdict.

If they did so, then the verdict is against law. The most thcy eould do, even on their.supposition that they found the mortgage fraudulent, was to give the proceeds of the sale of the property as money had and received to the defendant’s use.

The defendant, had he brought an action of assumpsit for the taking of the cow, waiving the tort, as perhaps he might, could only have recovered the amount realized by the sale, on the part of the mortgagee. He would not have recovered the value of the animal in that form of action. He eertaiilly could do no more by the other form of waiver to which he has had recourse as a defence or set-off in assumpsit. Hunter vs. Prinsch, 10 East., 391.

The verdict must therefore be set aside and a new trial awarded, on payment of costs, which is the established condition of a new trial where the verdict is against law, and the charge was not incorrect. See Gr. & Wat. on N. T., 1, 601; Bank of Utica vs. Ives, 17 Wend., 51; Marvin vs. Fay, 1 E. D. Smith, 107.


author: Pratt, J.

text:
    Isaac Altman vs. James K. Johnson and Abraham Wheeler.
    Whore a suit is taken from the Circuit to the Supreme Comí: and the judgment rendered below is affirmed, execution upon the judgment originally obtained in the Circuit Court will issue from that Court, unless there is something in the ordor or judgment of the Supreme Court that plainly includes the judgment in the Circuit Court.

      Lenawee Circuit,
    January, 1871.
    Judgment upon report of referee in favor of the defendant for costs, removed to the Supreme Court by the plaintiff upon writ of error and judgment below affirmed.
    Defendants filed certified copy of the order of the Supreme Court affirming the judgment below, and took an execution from this Court to satisfy the judgment obtained therein.
    Plaintiff moves to set aside the execution because, as he claims,
    1. The execution should have isssued from the Supreme Court.
    2. The record has not been returned from the Supreme Court. No remittitur filed in Circuit Court.

      A. L. Millard,, for Plaintiff,
    cites Tidd’s Practice, Am. notes, 994, 995; 2 Wendell, 239; 2 Revised Statutes, N. Y.,§ 26,Ed. of ’29;
      2 Bouvier's Law Dictionary, 445; 3 Hill, 632, 633; 1 Wendell, 25; 2 Burrill’s Practice, 162; 3 Id., Sec.227; 2 Tidd’s Practice, 911, 1176; 2 Compiled Laws, Sec. 5336; 3 Bacon's Abridgement, 361, 362; 3 Johnson, 443.

      G. A. Stacey,• for Defendant, cites Supreme Court Rule 11 ; 2 Compiled Laws, Sees. 4442, 5333.
   By the Court,

Pratt, J.

Supreme Court Rule 49, provides that final process shall be issued upon a judgment or decree of that Court. It cannot issue upon a judgment or decree of a Circuit Court. Unless the judgment below was specially included in the judgment of the Supreme Court, execution could not issue for the recovery of the same from the latter Court. The case of Lester vs. Sutton, 7 Mich., 329, which 'was a ease of reversal, decides that judgment “ for costs to be taxed,” included only the costs of the Supreme Court. It is true the case is not exactly parallel, but in any case I think judgment in the Supreme Court “ for costs to be taxed,” would only include the costs of that Court.

When a case is taken up to the Supreme Court on writ of error, the original record, under our practice, is not sent up — only a transcript. Supreme Court Rule 11.

The writ of error does not stay an execution' from the Circuit Court unless a bond is given to defendant in error, showing that the Circuit Court still has control, of the judgment in that Court.

Compiled Laws, Secs. 5333 and 5335, further provides that in case the bond is filed and due notice given, no' execution shall issue thereon during the pendency of the writ of error, leaving the inference that an execution mayissue as soon as the pendency of the writ of error *is determined.

Section 5336 of the Compiled Laws, further provides that the proceedings upon writs of error shall-be according to the course of the common law, as modified by the practice and usage.in this State, and such general rules as shall be made by the Supreme Court.

The practice at common law is very clearly pointed out in Tidd’s Practice, 994 and 995. Where a case is taken from one court of record to another the execution issues out of the court where the record is. When a case was taken from the Common Pleas to the King’s Bench, the original record was sent up and in that case execution issued from the King’s Bench. But when a case was taken from the King’s Bench to the Exchequer Chamber or House of Lords, a transcript only of the record was taken up from the King’s Bench, and the execution issued from the King’s Bench, where the original record was. • A case that was affirmed in the Exchequer Chamber, is reported in Palmer’s Reports, that was issued in the time of James the First and Charles the First, long before our Revolution. A like case is reported from the House of Lords, in Cowper’s Reports, in the time of George the Third, shortly after our Revolution. I am not aware of the existence of any practical usage pr Supreme Court rule in this State changing the common law practice. On the contrary, so far as I have had any experience, it has been the universal practice in this State, for the execution, in cases of this kind, to issue from the Circuit Court. The practice in New York, as fixed by Rule 28, 6 Hill, 633, is the common law práctico slightly enlarged upon, in that it provides for the recovery of costs in both the Court of Appeals and the Supreme Court, in the latter-Court. The practice in Virginia is fixed by statute, and follows the common law practice substantially. 1 Robinson’s Practice, 673.

In the State of New York, by Rule 27, found in 6 Hill, 632, it is true, the remittitur of record is made to consist of the writ of error and the transcript of the record, all of which must be returned to the Supreme Court, but in the absence of any such rule in this State, the order of the Supreme Court as made in this ease is sufficient for this Court to act upon. There can be no mistake as to this suit and the identity of the parties to the suit any more than if the writ of error and the transcript wore all returned. The original record is in this Court arid has remained here all the time. The Court knows full well what to act upon. The practice in our State will differ from that of the State of New York in this. There, an execution for costs in both the Court of Appeals and the Supreme. Court issued from the Supreme Court. Here an execution must issue from each court upon the judgment made therein. There is nothing in this ease indicating that the judgment below is to be included in the judgment of the Supreme Court.

The motion is denied.


author: Graves J.

text:
    Colin Campbell et. al vs. Mary White.
    A. married woman ’iving with her husband, is liable for goods belonging to ih« «hws of fami'f neoessarie', used by her husband’s í¡unity, whorosuth gdoils wero purchased by her, on her Individ uní ert-dit.
    Absence fifoni th* Stato. to prevent the operation of the utatuto 4uust to Actual,*nnt morely conv sti'uctive; returns of tin* debtor, toBottho.stutute running nguin, must besulQciently open * to enable the creditor, with reasonable diligence, to Korvo process upon him, and it must not boa «oeretoKe, derigued to ctaecitra and mislead the credit n*. Opea visits,which might well be known to ali prisons, aro to be t edited to the debtor, while on tho other liaud uuecesaive absences m\j bi* jwjcumui.itwJ aga nit mm.
    Error to Wayiio Giruuit,
   Opinion by

Graves J.

Three questions were involved in this case, two of which were as follows:

1. Whether a married woman, residing with her husband and owning a separate estate, canche held liable for merchandise purchased by herself on her indivdual credit and sole .agreement to pay for it in case the items belong to the class of family necessaries, and are actually used by the husband’s fern ily and in his household.

2 . The legal bearing and effect of thevisits of Mrs. White to Detroit, under the circumstances stated in the record, she being a resident of Canada.

II'.JaQ That the first question should be answered in the affirmative, upon the grounds stated by Cooley, J., in Tillman, vs. Shackleton, 15 Mich., 447. The liability of the tote was consequent upon her obtainment of the goods on her sole credit and individual promise to pay for them, and was not conditional upon the kind of use to which the goods should be subseqently put. Of course the principles which apply here can bear no restioa to ths doctrine of those cases where goods are furnished to the wife or family at the instance of the wife, and are considered as-furnished to the husband, or at his expense.

Defendant’s residence in Windsor, Canada, was not controverted, though the evidence tended to show that she.was frequently in Detroit. A- question was raised whether those visits affected the application of the statute of limitations. The.pror vision of the statute is, that “ if after apy cause of action shall have accrued, the person against whom it shall have accrued, shall be absent from and reside out of the State, the time of his absence shall Dot' be taken as any part of the term limited for the commencement of the action.” The condition upon which the suspension of the statute depends,requires the concurrence .of two facts : residence out of the State and absence Iron» it; and without the conjunction of these two elements the condition will be incomplete.

Absence from the State, to prevent the operatiopof the statute, must be actual, not merely constructive; returns of the debtor, to set the statute running again, innst be sufficiently open to enable the creditor, with reasonable diligence,to serve process upon him, and it m ist not be a secret one, designed to deceive and mislead the creditor. Open visits, which; might well be known to all persons, are to be credited to the debtor, while on the other hand successive absences niay be accumulated against him.


text:
    John Foley, Frderick Fleming and Dennis Corkery vs. The People.
    Error to the Recorder’s Court of Detroit.
   Opinion by

Graves, J.

Plaintiffs in error were tried in the Recorder’s Court of Detroit for robbery, and having been convicted and sentenced, brought error to this Court. The question is raised on the exclusion of a questiou put to Foley on his examination by the prisoner’s counsel. That question was whether he was a deserter from the English army. Held, That the question was notrelative to the issue, and whether he had or had not escaped from the military service of a foreign government cannot affect his veracity as a witness in our courts. If the inquiry was intended to draw from the witness an account of his antecedent life it was subject to the sound discretion of the Court, and the witness was fully questioned on that point.


author: ¿^Graves, J.

text:
    Addison Osborne vs. John O. Forshee.
    Where the alleged slanderous words are set ont in a declaration in an action for slander, it is error to permit counsel to read to the witness for plaintiff the words in the declaration and then to ask him in relation thereto. '
    Where defendant in an action for slander, had, while a witness in another cause, admitted in answer to a specific question the use of the slanderous words imputed to him,to the plaintiff, Hi:ld, That such admission should not he given in evidence against him.
    Error to Washtenaw Circuit.
   Opinion by

¿^Graves, J.

Forshee having sued Osborne for ver* bal slander and recovered judgment, the latter complains of several rulings made upon the trial. The ground of action, as stated in the declaration, was that Osborne; “ in heafing of divers persons, falsely and maliciously uttered of and to the plaiufiff the 'following false words : You are an old thief and swore to á lie, and lean prove it by Sunborg; I can prove it by Bunce’s docket.” When plaintiff was on the stand as a witness his counsel read to him the statement in the declaration relative to Bunce’s docket and then asked him if there was anything said about Bunce’s docket.- This was ’ objected to as incompetent, but the objection was overruled.»

Held, That the Court erred in admitting the testimony in that shape. By allowing the paragraph in the declaration to be read as an introduction to tUe question put to the p irty, the Court, in sub* stance permitted the plaintiff s counsel, under the guise of an exam inatiou of the plaintiff himself, to make known to the latter the very facts which the form, of the declaration required to be shown and which his counsel wished to find asserted in and by the answer to be given.

■ Plaintiff was further permitted to show, under objection, that on a trial before one Justice Palmer, the defendant, while being examined as a witness, testified in answer to a specific question, that he ‘ had told Forshee that he had sworn to a lie and that he, ("Forshee) could prove it from Bunee’s docket.

Hdd, That the evidence was improperly admitted: Defendant’s evidence elicited in the case before Palmer Was' so far privileged as 'to preclude plaintiff below in this case'from using it as au admission of the slander imputed.

Held, also, That /the objection to evidence of the • defamatory words on the asserted ground that the declaration does nut allege that they were spoken'of and concerning the plaintiff, cannot prevail! The averment is hot what the objection assumes it to be.

The judgment below must be reversed with costs and a new trial ordered. '


author: Biiown, J.

text:
    Carlton Wheeler vs. S. Gridley Toof.
    A dufendant who fails to deny the execution of a promissory note, at the time of pleading, will not be permitted to question it at the trial, even though there may appear, on the face of the instrument, some indications that it may have been altered.
    At the time of dedicating a church, A promised verbally, to pay $50 towards liquidating the indebtednesss of the Society and to enable it to complete its church. B,'a Trustee of the Society, had advanced moneys for the Church, and A, in lieu of his promise to contribute money to the Society, gave his note for $50 payable to B or bearer. In a suit on the note •, Held, that the consideration was sufficient, and that B might recover in his own name.

      Van Buren Circuit,

    1871.
    This action was commenced before a Justice of the Peace, the plaintiff declaring upon a certain, promissory note executed by the defendant, payable to the plaintiff or bearer, and dated December .2, 1868j'for the sum of $50, with 10 per cent, interest, due October 1st., then next following.
    Judgment was rendered in the Court below against the defendant, for ihe face of the note with interest.
    The defendant appeals from that judgment. At the trial in this Court, the plaintiff produced the note and offered the samé in evidence. The defendant’s counsel objected to the introduction of the note, on the ground that it had been changed since its execution, by the addition of the words “ with ten per cent, interest”— that from the face of the note this addition was apparent.
    No affidavit denying the execution of the note had been filed, the objection was overruled, and the note was read in evidence.— The plaintiff then introduced a witness who testified to the amount of interest accrued upon the note, and thereupon rested his case.
    The defendant then testified in relation to the circumstances of giving the note — that' at the time of the dedication of the First Presbyterian' Church of Decatur, the society desired to raise funds to liquidate the indebtedness which had accrued in the building of the Church. In referring to this matter the defendant said:
    “ There was a statement made that the Society was about’$1,500 in debt, and they wished to raise funds to liquidate the debt. On the evening of that day I told them they might count on me for $50. 1 told the Society so.-

      “ I was in the gallery. I told Mr. Wheeler I could not pay that' Honey then; he sfeid that was all right.; he said I should come down t) his office sometime and put it in shape of a due bill — something óf that kind. I went there some time afterward, and he put it in writing, and I signed it.”
    The plaintiff, it appears, was one of the Trustees of the Society, who, by way of rebutting, testified that at the time of the dedication “ we called for volunteer subscriptions to liquidate the debt; various parties stated what they would give; they also took up a contribution in money, and part ies who were not prepared to pay money wrote the amount with their name upon a slip of paper and dropped that instead of money. The defendant was there and proposed to give $50. After services he came forward and said he was not pre* pared to pay it then; he would like to pay it some time in the Fall I says to him, “ you had. better come down and see me, and we’ll fix it up; give me your note for it.” He said he would do so. I after, wards saw him and put it in writing, and he signed it.”
    Wm. H. Nearpass testified : “ The statement at the time of the dedication, was, as I understood it, to pay the indebtedness and tp finish up the house. I could not say positive whether the word finish was Used.”
    Witnéss Bray,testified that at the time of dedication, Elder Toof said there was some work -yet to be done. It was said in this way : “ When the church was completed” or “ would be completed” (it was not quite done) “there would be an indebtedness of about $1,500, and this subscription w'as taken to pay that indebtedness and to finish up the church.”

      Upton & Tusker, for Plaintiff.

      Foster & Field and Ar. A. Batch, for Defendant.
   By the Court,

Biiown, J.

From the testimony in the case, the Court finds the following facts :

1. That the note in question lias not been altered since its execution.

2. That the note in question was given as a promise to pay $50, to assist the First Presbyterian Church of Decatur to pay its iudebtedness incurred and to be incurred in tbe construction of their church.

3. That the plaintiff at the time of taking the note, had advanced funds of his own to pay for labor and materials in the construction of the church, and that on taking such note he credited the church with the sum of $50.

While it is true that the words in the note relative to interest appear to be written in ink a shade darker than the body of the note, it does not appear different from that of the signature.

The plaintiff has not denied the execution of the note, as'required by the rule, to entitle himtoquestion its validity.

It is claimed on the part of the defendant that there was no consideration for the note — that if it was the understanding and agreement of the defendant that he was to pay money for a past indebtedness, and no additional obligation was incurred by reason of such promise or on the faith thereof, the promise would be but a ffidrewiidum pactum ; and in support.of this position the following authorities were cited: 1 Gr. on Ev., § 564; et. seq.; Sheldon vs. Hawes, 15 Mich., 517; Wilde vs. Armsby, 6 Cush., 314; 2 Par. on Con. (5th Ed.) 721, 722, note y; 1 Par. on Con., 453; Limerick Academy vs. Davis, 11 Mass., 112; 1 Comst., 581; 9 Mass., 252; 2 Pick., 578; Edw. on Notes and Dills, 324.

It was contended at the argument that the promise of the defendant made at the church was without consideration, and that therefore his subsequent promise embodied in the note to the-plaintiff, being made in lieu of the first promise, cannot be enforced; and the case in 5 Pick., 390, is relied upon in,support of the proposition.

The counsel for the defendant further insisted that at most the obligation incurred by the defendant was but a moral one, and that such obligations were not sufficient to support an express promise in writing, and the case of Mills vs. Wyman, 3 Pick., 207, is cited as authority.

A consideration and examination of the authorities upon the questions thus raised is full of interest. These authorities, are far from being uniform, and the grounds upon which the eases have been decided are so varied as to lead to some confusion, and unless critically examined many of them would tend to lead us far from correct principles. Some of the eases hold that a promise of one subscriber to pay money is a sufficient consideration for a similar promise by another, while others deny the force of subscriptions as mutual considerations. Concerning this latter class of cases our own Supreme Court in Underwood vs. Waldron, 12 Mich., 89, say: “The cases which have denied the force of subscriptions as mutual considerations, are usually cases where no payee is named or designated, or where the one-designated is either incapable of acting, or does not assume and is not bound to act.;” and the cases in 9, 11 and 14 Mass., are cited as cases of this character. Arid whore this difficulty has not existed it has been recognized repeatedly that it is a sufficient consideration that others were led to subscribe by the very subscription of the defendant. 5 Pick., 506; 9 Cush., 537; 4 N. H. 533; 6 N. H., 164; 24 Vt., 189; 6 Pick., 427.

In the case referred to in 12 Mich., Judge Campbell says, that “ objections for the want of parties are frequently classed with objections to the consideration; and parties have been discharged upon grounds by no moans clear or intelligible. Any extended criticism of the cases would be more curious than profitable, as the whole subject must be determined bytherules governing ordinary agreements.” If we are to apply in this class of cases the same tests that we do in aii ordinary agreement, I can see no difficulty. If in the. examination of the various authorities upon this question we bear in mind the distinction between the contract and the consideration,.and draw clearly the line between the different forms of promises, wo shall be able to avoid the confusion into which we shotdd otherwise be drawn by a contemplation of the eases referred to. •

Is a church valuable in a legal sense ? Is the citizen benefited, by these promoters of civilization ? by the institutions that tend to make him secure in his person and his property ? In the-case of Underwood vs. Waldron, the learned Judge says : “ We cannot hesitate to hold that a school or church, or other similar institution, which we are anxious to have built, and promise to pay for is valuable” to them in a legal sense. In most cases there is a pecuniary value in the enhanced prices of neighboring property. But, apart from this^ any worthy purpose for which men generally are willing to expend money, must be regarded by courts as worth money, when it is promised. We know of no safer tost to apply to human transactions.”

To the same effect,see 6 Mass.,42; 14 Id, 172; 15 Mihc.,237; 6 Pick.,431; 12 Pick,129; 7 N. Y., 349. Most of these cases hold that a moral obligation is a sufficient consideration' to support an express promiso.

It was urged at the «argument that the1 note was, if it had-any validity, the property of the Church, and that therefore Wheeler' could not recover upon it. It would be a sufficient answer to this objection that one who holds paper payable to bearer, for another, may sue in his own name and his want of interest is no objection. 7. Cowen, 174; 11 Johnson, 52; 5 Wend., 257; 3 Johnson's Cases, 264; and it has even been held that the fact that the holder • and owner of a negotiable note prosecutes it in the. name of a stranger, without his knowledge or consent,.is no bar to a recovery. 15 Wend. 640; 25 Id., 411.

Upon this question of consideration the distinction between inducement and consideration must not be overlooked. I It is not necessary that the consideration should go to the promisor. | A consideration to a third party may be an inducement to a person to give,his note; and in such case the promise is just as binding as though the promisor had received the benefit. A is indebted to B; C to discharge B,s indebtedness gives A'his own pote, and A thereupon discharges-B. Here the consideration was for the benefit of B, and was an inducement for C's promise.

In the case before us, the Church Society had incurred an indebtedness and subsequently made further' expenditures. To assist the Society in the payment of its obligations and to enable it to complete its church, the defendant promised to. pay $50. The Society was indebted to the plaintiff for moneys’ advanced to him. The defendant gave his note to the plaintiff, and the plaintiff credited the Chur'ch Society with $50. The Society received the consideration. With this view of the case it Will be seen that it is of but little consequence Whether, as a matter of fact, the defendanthas ever availed himself of the benefits he might receive from the civilizing and enlightening influences of the Church.

Let judgment be entered for the plaintiff for the sum -of '$60 • 90, that being the amount of the note with interest


author: Ghristiancy, J-

text:
    The People vs. Michael Nolan, Wm. Rogers and Peter Nicaise.
    Burglary. — Entry through gratiDg over an excavation adjoining a-cellar window;
    Error to the Recorder’s Court of Detroit.
   Opinion by

Ghristiancy, J-

Defendants were tried in the Re-' corder’s Court of Detroit upon an information charging them with bavin" broken and entered the . store, or shop of one Murray, in the umht time with intent, etc. • The evidence tended to prove the larceny in the store, and that the defendant entered in the night time through an area outside of tho cellar which would seem to have been excavated adjoining the cellar window, and which was covered- with an iron grating as is usual in such cases, the defendants' raising the grating for that purpose, then passing . through the window which was not shown to'have been shut at the time, in to the. cellar and thence up a stairway through a trap door, which was shut, into the store. It was Objected in the Court below, and this is the principal objection urged here, that this did not constitute á breaking within the meaning of Sec. 575b, P- L-; but that itho jmly breaking shown was an interior breaking of the trap door, after getting "into the cellar, and that such interior breaking does not come within the provisions of. this section, as it would in the case of a dwelling house at common law.

" Hd l That • the area or excavation in front of the window covered and’protected by the iron grating should properly be considered as part of the cellar, and the grating as part of the window. Therefore the takin" up of the grating constitutes an exterior breaking as clearly as the opening of the window itself, or of an outer door


author: Campbell, C. J,

text:
    Hyacinthe Riopelle vs. Francis Gilman.
    Construction of statutes with reference to tlié time of bringing actions for the recovery of lauds.
    Error to "Wayne Circuit
   Opinion by

Campbell, C. J,

This was an action of ejectnent in which the defendant below moved judgment against the plaintiff, who complains in this Court of certain rulings, which 'are only important in case the suit was not barred by lapse of time. - That question, therefore, was first considered. There "was no dispute in regard to aáverse possession by the defendant for something over twenty two years. There, was it contest as • to a period'before that which extended back to 184G, about tweiity-six years. The dispute, therefore, in the outset, was as to the effect of the statute. The case is governed by sections one and six of the R vis:d Statutes oí 1888, the former providing that “So person shall commence an action for the recovery elf any lands or make any entry thereupon unless within twenty years after the right to make such entry or bring such action,” first accrued or wilhin twenty-five years after he, or those from whom he claims, shall have been seized or possessed of the premise^, except as hereinafter provided.”-

Section six declares that t!,no person shall he deemed to have been in possession of any lands, within the meaning of this chapter, merely by reason of having made an entry thereon, unless he shall have continued in open and peaceable possession of the premises for the space of one year alter such entry, un-, less ati action shall be commenced upon such entry and seizure within one year after he shall be ousted or dispossessed of the premises.’’

The two limitations cannot propely be blended together — The statutes require that every action shall' be brought withirt twenty years from the time it accrued ; also, that a party must bring his action within twenty-five years after disseizin, whethe; the persons in possession during the interim claim from each other or not,-saving only the case where, within one year from, the disseizin an action has been brought against the disseisor. — ' The object is to compel every party disseised to use some diligence. and to bar his entry after twenty-five years’ practical abandonment of his title to strangers. As this cause of action accrued twenty years before.suit was brought, it is barrel at all events, and the other questions become immaterial.

Judgment affirmed with costs.


author: Cheistiancy, J.

text:
    Holmes vs. Tramper.
    T. gave his note which was partly written and partly printed. ^ The printed portion conclude with the words, “ with interest at.” After the note'was delivered to the payee, 1he words and figures" 10 per cent” were added after the printed word “at,” without the knowledge ^ or consent of the maker. The plaintiff was a bona fide holder before maturity.» Held, that tlio alteration should bo treaied as a forgery, anil that the case was not such as would bring it within the rule which would hold the maker liable on the ground of negligence.
    Error to Washtenaw Circuit.
   Opinion by

Cheistiancy, J.

This was an action brought by Holmes against Trampcr on a promissory note signed by the latter which was partly printed and partly in writing,a printed blank having been used. The following is a copy of the note

$400.

One year after date I promise to pay to Lyman Terry or bearer,' four hundred dollars at the first National Bank of Ann Arbor, value, received, -with interest at 10 per cent.

JACOB TEAM PEll.

There was evidence tending to show that the note had been altercd. after it was delivered to the payee, by adding after the printed word “at,” the “10 per cent,” and that this alteration was made without the knowledge or Consent of the maker. The plaintiff was conceded to be a bona fide holder before maturity, and the only question in the case was whether the wrongful alteration of the note rendered it void in the hands of the plaintiff, and constituted a defence as against him in favor of the maker.

Unless the note, as signed, can be treated as a note given in blank, so far as relates to the rate of interest, giving the payee or holder the right to fill the blank by inserting the rate, the alteration must be treated as a forgery, since it is one which, if valid, would enlarge theJiability of the maker. And the Court was satisfied that the note was a complete and valid instrument when it stopped at the word “ at.” The .word may have been disregarded, being in print, or may have been overlooked, and the Court considered that there was no such blank as would warrant the payee in inserting the interest clause.

Counsel for plaintiff in error, however, contended that, though there may be forgery in this note, the peculiar facts of the case bring it within a principle that the maker was guilty' of negligence in leaving a blank apparently intended for the insertion of the rate per cent, unfilled, and instead of. drawing a line through the blank, or erasing the word “ at,” to indicate that it was not tobe filled, and that he .thereby invited and facilitated the forgery in a manner calculated, to impose upon innocent parties and that he must therefore, as between him and such innocent parties, be held to pay the note in itered form in the same manner as if it had been originally drawn.'

Reid, That upon principle, and according to the weight of authority, the liability of the maker upon the note, as altered, cannot be maintained; ■ Where the party is made to sustain the loss,the person causing it has usually been his agent, or the party by his acts or negligence has-authorized the person sustaining the loss to consider him as such. And where one has been held liable for negligence, he has been held liable only for the shape of the instrument as it went from his hands, and not as criminally altered by some third party. Such a crime could create no contract.


author: Christiancy, J.

text:
    Shotwell vs. Harrison.
    It is incumbent on a party claiming: title by priority of record of deed, to show, affirmatively the payment of a valuable consideration, and this by other evidence than the mere recitation in the deed»
    Error to Van Burén Circuit.
   Opinion by

Christiancy, J.

This was an action of ejectment The premises in question were patented to Thomas B. Millard, May 1st, 1889. Both parties claimed under title derived from Millard. Millard, in August, 1837, executed a warranty deed of the premises to Monroe; Monroe conveyed to Crittenden, in March, 1837, and Crittenden’s heirs to Harrison, plaintiff in the Court below.— In 1865, Millard executed a second deed (quit claim) for the premises, and Shotwell, by mesne conveyances, claims under this quit claim deed, and by priority of record.

It was objected that the deed from Millard to Monroe was not admissible purporting to be executed long before the issuing of the patent to Millard, and that the Court erred in charging the jury hat this made no difference in the case.

Held, That this objection was not well taken. The deed contained a warranty, and operated as an estoppel against him and all who might claim under him.

2. It was objected that the deed from the Crittendens was not admissible, because it was executed and acknwledged in the State of Massachusetts, and the Clerk’s certificate to the official capacity of the Justice who took the acknowledgment did not show that the Clerk so certifying was the Clerk of a court of record, as required by the statute.

Held, That it appeared that the Clerk was the Clerk of the Supreme Judicial Court of Massachusetts, for the county of Franklin, and this Conrt will take judicial notice that it is a court of record.

The defendant set up the following chain of titles :

1. A quit claim deed from Millard to Thomas Silliman, of January 4,1865, and recorded in Van Burén county, the next day, three years before the deed from Millard to Monroe was recorded.

2. A quitclaim deed .from Thomas Silliman to Mary Conway, dated January 4, 1865, which was recorded October 30, 1867.

3. A deed from Mary Conway to David Bacon, dated October 29,1867, and recorded October 30,1867.

4. A quit claim deed from Bacon to the defendent, dated January 6, 1868, and recorded inVan Burén county, January 14,1868, more than a mouth prior to the recording of Millard’s deed to Monroe.

The Court below charged the jury that to enable the defendant to avail himself of the priority of record of the deeds through which he claimed, either the defendant or some of his grantors, after Millard, must be found to have purchased in good faith and for a valuable consideration, and that the burden of proof was upon the defendant to show affirmatively such consideration, and that by some other evidence than the mere recital of it in the deed.

The old deed from Millard to Monroe was recorded in Barry County, and a certified copy recorded in Yan Burén County. Meld That the record of this copy could not be received as evidence.

[The original deed, however, was introduced in evidence. — Rep.]

Meld,, That the Court'below, erred in refusing to charge that the whole chain of deeds given in evidence by the defendant had priority of record against the plaintiff.

[For citation of authorities, see brief of counsel in this case, as reported in 1 Mich. Nisi Prius, 54.—Rep.]