author: By the Court, Wing, J.

text:
    The People vs. Taylor.
    A barn standing eighty feet from a dwelling house, in a yard or lane with which there was a communication from the house by a pair of bars, was held to be within the curtilage.
    Error to Oakland Circuit.

      Dralce, for the People.

      Stevens, for defendant.
   By the Court, Wing, J.

The indictment in this case is founded upon section three of chapter 154, and section one of chapter 161, title SO of the revised statutes. The first named section provides that “ every person who shall wilfully and maliciously bum in the night time, any bam, stable, shop, or office, of another, within the curtilage of any dwelling house,” &c.

There are but two questions of any importance presented by the record for the judgment of the Court.* The first is whether the Circuit Court gave to the jury the correct definition of the term “ curtilage the second is whether the Court stated to the jury the true rule of law by which they should be governed, in deciding whether the defendant hired Grey to bum the barn. If the Court was correct in its views as expressed on these points, it will not be necessary to spend apy time upon the other.

The proof shows the relative position of the house, bam, and enclosures on the farm of Mr. Johns. The bam is alleged in the indictment to have been within the curtilage of the house. Does the proof support this allegation ? This will depend upon the trae meaning of the word curtilage. It is perhaps unfortunate that this tern, which is found in the English statutes, and which is descriptive of the common arrangement of dwellings, and the yards surrounding them, in England, should have been perpetuated in our statutes. It is not strictly applicable to the common disposition of enclosures and buildings constituting the homestead of the inhabitants of this country, and particularly of farmers. In England, the dwellings and out-houses of all kinds, are usually surrounded by a fence or stone wall, enclosing a small piece of' land embracing the yards and out-buildings near the house, constituting-what is called the court. This wall is so constructed as to add greatly to the security of the property- within it; but as such precautionary arrangements have not been considered necessary in this country, they have not been adopted. Hence, the difficulty in this case of giving a correct interpretation to the statute, and of judging whether the bam as'described by the witness, was within what was understood by the Legislature as the curtilage of the house.

Jacobs in his Law Dictionary says: “ Curtilage is a court-yard, back ' side, or piece of ground lying near and belonging to a dwelling-house^ - and though it is said to be a yard or garden belonging to a house, it seems to differ from a garden, for we find cum guando gardino et curtilagio.” The definition given in Shepherd’s Touchstone, (page 84,) Cunningham’s Law Dictionary, and Webster’s, Johnson’s and Walker’s Dictionaries, is substantially the same. Mr. Bouviere in his Law Dictionary, defines it to he “ a space of ground within a common enclosure, belonging to a dwelling-house.” Mr. Chitty in his General Practice, 175, speaks of its having been defined as is stated by Jacobs. In the ease of Regina vs. Gilbert, (1 Covington & Kirwan, 84,) the barn was situated in an enclosure which was surrounded by a general fence, but the yard in which the barn stood was separated from the yard immediately about the house by a stone wall; it was held the barn was within the curtilage. Mr. Chitty, in remarking upon the various definitions that have been given to this word says: In its most comprehensive and proper legal signification it includes all that space of ground and buildings thereon, which is usually enclosed within the general fence, immediately surrounding a principal messuage, out-buildings and yard, closely adjoining to a dwelling-house, but it .may be large enough for cattle to be levant and couchant therein.” The definitions of Bouviere and Chitty do not strictly agree with the other authors named, yet it may be gathered from them all, that a curtilage is not necessarily one enclosure, but that it may include more than one yard near the dwelling-house. The definitions of neither of the authors cited indicate that it is necessarily a yard which embraces the out-buildings, and yet it may be so; and in England it commonly is so, and the space about the house is spoken of as a court. In this case the barn stood eighty feet from the dwelling-house and nearly in range with it, east and west; it stood in a yard or lane with which there was a communication from the houso by a pair of bars. The space of ground occupied by both buildings, and the buildings were such as are usually included in one enclosure in England. It is quite manifest from the statute that it was the intention of the Legislature to protect dwelling-houses from the hazards of fire which might be set to a barn, office, stable or shop, standing near to the house, as well as to protect these other buildings; we thinu it is our duty to apply the words of the statute in such enlarged sense as will insure that protection to dwelling-houses' as well as barns, &c,, which it appears to us, was the manifest intention of the Legislature to provide.

But the question after ah, is, did the Court mislead the jury by giving an inaccurate definition of the word curtilage ? We think it did not* The definition read by the Court from Webster, Johnson, and Walker’ accords with that given by the legal writers we have cited. It was the province of the juiy to apply the law to the facts. The Court was not bound to instruct the jury that there was. no proof that the bam which waa burned had stood within .the curtilage of any dwelling house, nor that the barn was not within the curtilage of a dwelling house — there was proof before the jury upon that point, and it was their duty to consider it in connection with the law, and ascertain whether the barn had stood within the curtilage, as intended by the statute and defined by the Court.

As to the other point, it appears by the bill of exceptions, that on the evening the bam was burned, defendant offered Grey a cow, timber sufficient to make ten thousand staves, and also a rifle, if he would bum Johns barn, and remarked “that that would be a good night to do it.” The witness replied, “if Lewis Benjamin consented, he would do it.” Upon this evidence the Court was requested to charge the jury, that to constitute a hiring, the parties, Taylor and Grey, must have positively agreed — the offer of defendant must have been accepted. The Court charged the jury, that in order to constitute a hiring, both parties must have agreed; but if they should find there was an open proposition made by Taylor to Grey, accepted by Grey on condition that Lewis Benjamin consented, upon the performance of the condition the agreement would be perfect; defendants counsel excepted.

A contract implies the assent of two minds. The parties must understand that one party has made an offer, and the other has accepted it. But if A. promise B. to pay him a certain sum of money if he will call for it at a particular time, and B. calls accordingly, the promise is binding, the calling for the money being a sufficient consideration. It is not necessary that the consideration should exist at the time of making the promise, for if the person to whom the promise is made, should incur any loss, expense or liability, in consequence of the promise, and relying upon it, the promise thereupon becomes obligatory. Thus, if A. promise B. to pay him a sum of mnney if he will do a particular act, and B. does tie act, the promise thereupon becomes binding, although B. at the time of the promise does not engage to do the act. In the intermediate time, the obligation of the contract or promise is suspended; for until the performance of the condition of the promise, there is no consideration, and the promise is nudum pactum; but on the performance of the condition by the promisee, it is clothed with a valid consideration, which relates back to the promise, and it then becomes obligatory as an express promise. (See Chitt. on Con., 3d Am. Ed., 7, and notes and cases there cited; 2 Kents Com., 3d Ed., 465; Knobb vs. Lindsay, 5 Ohio R., 471; Theobald on Principal and Surety, 6, 7;) so if a reward be offered for the apprehension of a culprit, or for the doing of any other lawful act, the promise, when made, is nudum pactum; but when any one relying upon the promised reward performs the condition, this is a good consideration for the previous promise, and it therefore becomes binding upon the promisor. It is an implied part of the offer, that time shall be afforded to any one who chooses to accept it; and if before the offer is withdrawn, a person does that which, from the terms of the offer, will entitle him to the reward, his waiting upon the offer constitutes a compliance of it, and the party making the offer is bound to fulfil his promise. When the parties are free to act, to constitute a contract, the one must offer, and the other must accept, unless it is a part of the agreement that time shall be given to the person to whom the offer was made, to determine whether he will accept or not; in which ease, the time given makes a part of the offer. (See 1 Cushing's R., 91,-'2.) In this case there was a conditional acceptance. The condition that Benjamin should consent, was introduced into the contract for the benefit of Grey. The prisoner did not desire that Benjamin should participate in the matter. He did not withdraw his offer, but seems to have given Grey time to obtain Benjamin’s consent. It was not necessary to the validity of the contract', that Grey should have informed the prisoner of Benjamin’s assent, previous to his doing the act. Gray might have waived the assent of Benjamin. If he did so, or he obtained his assent and did the act, the contract and its performance would be complete, and the prisoner would be bound by his promise — it would constitute a hiring by the prisoner, within the meaning of the statute. We infer from the statements in the bill of exceptions, that after the bam was burned the prisoner paid Grey, as he had proposed. *

But there is another branch of the charge upon the same point, to whieh exception is taken. The Court charged the jury that “if they should find from the evidence that Taylor had offered Grey certain property if he would burn the barn, and after the bam was burned • Taylor delivered the same property in consideration of his having burned the barn, it was competent for the jury to consider such delivery after the burning, as evidence of a contract made before.” But in immediate connection with this sentence, the Court charged the jury that “the delivery of money or property after the performance does not constitute a hiring.” We see no probability that the jury could have been misled; all that could be inferred from these statements to the jury was that the evidence of the subsequent payment by the prisoner to Grey was not to be rejected, but might be considered by the jury in connection with the previous promise.

There are many exceptions, stated in the record, to the ruling of the Court as to the admission of evidence, but as the answers of witnesses are not stated we cannot notice them, for the answers of the witnesses may not have had the slightest bearing upon the case. In the other cases noticed, where the answers are given, we think there is no error.

Let it be certified to the Circuit Court for the county of Oakland as the opinion of this Court, that there is no error in the rulings, nor in the charge of the Court to the jury as set forth in the record in this case, and that a new trial be denied.


source: Caselaw Access Project

author: By the Court, Pratt, J.

license: Public Domain

text:
    Candee & Scribner vs. Clark & Brown.
    Plaintiffs having recovered a valid judgment in. a Court of Record in Ohio, against one of the defendants on a promissory note, signed by the defendants in their partnership name, brought their action on the same note against the defendants in this State. The defendants set up in defense the rendition of the judgment in Ohio.

      Held, That the judgment in Ohio, although against one of the defendants only, was a merger of the note, and extinguishment of the joint liability of the defendants, and that either defendant might avail himself of such extinguishment in bar of a recovery in a suit subsequently brought on tho note against both.
    Case reserved from Wayne County Court.

      An action of assumpsit was brought by the plaintiffs in this case, in the County Court, on a promissory note, signed by the defendants, in their partnership name of “Clark & Co.”
    Both of the defendants appeared, and pleaded severally the general issue, and also severally gave notice, &e., of the rendition of a judgment in the Court of Common Pleas, of Cuyahoga County, Ohio, against defendant Brown, on the same note, &c.
    By a written stipulation, filed in the cause, the execution of the note, the partnership of the plaintiffs, the partnership of the defendants, and the legal authentication of the record of judgment against Brown, on the note in Ohio, were admitted. It was also admitted, that at the time of the commencement of the suit in Ohio, defendant Clark was a citizen of Michigan; and that this suit is brought upon the same note upon which judgment was rendered in Ohio.
    The cause being submitted, the Judge of the County Court reserved the same for the opinion of the Supreme Court on the following points:

      First, Under the facts disclosed by the pleadings, stipulation and record of judgment, can the plaintiffs recover against the defendants.

      Second, Can the plaintiffs enter a nol. pros, against defendant Brown and proceed in the cause against defendant Clark.

      Howard é Mandell, for plaintiffs.

      Wells <& OooJc, for defendants.
   By the Court, Pratt, J.

The note upon which this suit is brought, having been executed by the defendants in their partnership name, is a joint, and not a. joint and several contract. The plaintiffs therefore, in order to maintain the action, must show a valid and subsisting contract against both of the defendants. Is the note such a contract ? Certainly not, if the judgment rendered upon it in Ohio is valid. The validity of that judgment is not controverted; hence, while it remains unreversed and in full force, it is by every principle a legal merger of the note. (2 John. R., 210; 18 Ib., 477; 13 Mass. R., 148; 1 McLean, 450; 2 Ib., 168; 1 Mason R., 315; 17 Conn. R., 429; 1 Peters R., 306; 3 Story 646.

If the plaintiffs have lost their right of action in this canse on the note against Brown by reason of the rendition of the judgment in Ohio, it is clear that the original joint liability of the defendants is at an end; the note being no longer a valid subsisting contract against both. It is no matter whether the original joint liability of the defendants on the note has been extinguished by operation of law, or by the voluntary election of the plaintiffs in proceeding, under the provision of the statute of Ohio, to judgment against one of the defendants only: the legal ■ effect is the same. In either case, the defendants, or either of them, may lawfully avail themselves of such extinguishment in bar of a recovery in a suit subsequently brought against both on the same demand.

When the plaintiffs, elected under the provision of the statute of Ohio, to proceed to judgment on the note, against Brown alone, they voluntarily and legally released their security on the note, as against Clark; hence, the judgment is a merger of the plaintiffs entire claim. Such must necessarily be the legal effect of their proceedings in that Court, under the statute of that State. The judgment in that Court is not a nullity, nor can it be judicially so regarded. It woidd indeed, be most extraordinary if the plaintiff's, after having recovered a judgment on the note, in one Court of competent jurisdiction, could at will repudiate it; and treat it as a nullity, for the purpose of prosecuting the same demand to judgment, a second time.

The plaintiffs cannot in this cause enter a nol pros., as to defendant Brown, and proceed to judgment against defendant Clark. , They have no several demand against Clark on the original note, if it had not been merged in the judgment.

Certified accordingly.

CASE ARGUED AND DETERMINED IN TEE SUPREME COURT OF THE STATE OF MICHIGAN. JULY TERM, 1851. PRESENT: HON. O. W. WHIPPLE, Chief Justice. HON. WARNER WING, ) HON. SANFORD M. GREEN, > Justices. HON. ABNER PRATT, >


text:
    Williams vs. Michigan Central Railroad Company.
    The Michigan Central Railroad Company is the legal owner of its road, by purchase and grant from the State; and has by the express terms of its act of incorporation, (Session Laws of 1846, p. 37,) the entire and exclusive right of its possession and control.
    The company is not bound by its charter or the principles of common law, to fence in its road for the projection of other persons’ domestic animals or for any other purpose.
    'The act of running cars over their road, being a.lawful act, the company cannot bo held . liable for accidental injuries occasioned thereby; unless the running was without proper care or in an unreasonable manner.
    The vote of a township, making cattle, ha., fret commoners, cannot confer upon individuals the right to graze horses, cattle, &c., on the company's road in said township, the road being in law, neither a public common or a public highway.
    The provisions of R. S., p. 84, § 4, eonfer upon the inhabitants of townships, the right merely of determining the time and manner in which cattle, &c., shall he restrained from going at large in the public highways. These provisions do not include railroads as highways, nor do they authorize individuals, through the powers thus rested in townships, to trespass on vested private right».
    The act of 1847, (Sess. Laws, 1847, p. 181,) providing that “no person shall recover for damages done upon lands by beasts unless incase* where, by the by-law's of the township, such beasts are prohibited from running at large, except -where such ^Sands are enclosed by a fence,” &c., does not confer any such authority or change the common law. It does not require individuals to fence their lands, but precludes recovery for damages done by beasts thereon, unless fenced.
    The act last referred to is only applicable to such lands as are usually fenced, which cannot be entirely done in the case of a railroad track.
    It is a wcU settled principle of law, that where an injury of which a plaintiff complains is the result of his own negligence or fault, or of the negligence or fault of both parties, without intentional wrong on the part of the defendant, no action can be maintained.
    This is an action brought hy the plaintiff against the defendants, in the Wayne County Court, to recover the value of certain horses killed by a locomotive and train of cars on the Railroad.
    The cause was submitted to the Court below, on a written statement of the facts, hy which it is admitted that the plaintiff resides about six miles south of the village of Wayne; that the horses in question, were his property, 'and that they strayed from his premises and were returning to Hamtramck, the place from which they had been previously taken; that they were on. the track of the Railroad near Dearbornville,. just before night, on the 23d day of June, 1849, and were killed about one o’clock the next morning, on the track of the road, between Dearbornville and the River Rouge.
    It is further admitted that one of the horses was ldiled about ninety rods east of Dearbornville; others at the first cattle guard, where a public highway crosses the Railroad, and about sixty rods west of the Rouge Bridge; and others about sixteen rods east of said highway, they having jumped over the cattle guard. That the Railroad was fenced on each side from Dearbornville to the crossing of said highway, and that the horses came upon the track from the common at the village of Dear-bomville, where there was no cattle guard, and when on, were confined within a narrow lane, in which they were killed. That said lane was the property of the defendants, and constituted the track of the Railroad, over which their passenger and freight cars were accustomed to pass several times daily. That their passenger trains run with great speed twice each way every day, between Detroit and New Buffalo; that the horses - were killed by the passenger train at the usual time of its passage over the Road; and that the morning was dark and rainy.
    It is also conceded by the case-that no by-laws restraining cattle from-going at large had been passed by the township of Dearborn, and that they were free eomnioners.

      The ease thus submitted was reserved by the County Judge for the opinion of this Court.

      Backus d Harbaugh, for plaintiff.

      James F. Joy, for defendants.
   By the Court, Pratt, J.

The main question to be determined in this cause, is, whether upon the facts admitted by the case, the defendants are liable for the value of the horses tilled. By no principle of law can they bo rendered liable on such a state of facts.

The defendants are the legal owners of the railroad, having acquired it by purchase, and grant from the State. Whether their charter contains powers and privileges which weréumprovidently granted by the Legislature, is not a question to be considered here in deciding the case; but whether under their chartered rights, and in view of the facts sub-netted, they are liable to the plaintiff for the loss he has sustained, resulting from their act, in running their locomotive and cars over their own railroad. Legally the defendants can be required to do no more in rendering the running of their cars safe to persons and property, than is required by the provisions of their charter, and the principles of the common law. By neither are they required to fence in then road for the protection of other person’s domestic animals, or for any other purpose whatever.

By the charter, the defendants are required, under heavy penalties, “to keep the road open and in repair for use, from Detroit to Lake Michigan, and always have and keep in use thereon, a sufficient supply of motive power and cars, both for persons and property, for the expeditious and convenient transaction of business, and the transportation of all persons and property offering for transportation.” (Sess. Laws 1846, p. 56, § 21.) Under these penal requirements, the defendants were engaged in running a passenger train of cars, at the time the injury complained of by the plaintiff occurred. The running of that train was a lawful act, and within their chartered rights; it was upon their own railroad, of which they had, by the express terms of their act of incorporation, the entire and exclusive right of possession and control. Ho third person had any right to interfere, or to arrest the passage of the train, or, hy any means impede its progress. The act, then, of running the cars being lawful, tho defendants cannot be held liable for any accidental injury, which may have occurred, unless the lawful right of running the train was exercised without a proper degree of care and precaution, or in an unreasonable or unlawful manner. This is a principle of law well settled, neither new or anomalous. It is as old as-any other principle of the common law, and alike applicable to every other kind of lawful business.

From the facts admitted by the case, it appears that the cars were running at a usual time, and that it was a dark rainy night; hut it does not appear that the train was running at any greater speed than usual, or that the engineer conducting the train did not in fact exercise reasonable care and skill; nor can such an inference he legally drawn from the facts in the case. But it is insisted, on the part of the plaintiff, that in the township of Dearborn, horses were free commoners, and therefore righfully on the railroad. This position cannot be sustained. In legal contemplation, the railroad is neither a public common nor a public highway. The voters of the township of Dearborn could not, by any power vested in them by the Legislature, confer upon the plaintiff' the right of grazing his cattle and horses on the lands granted to the defendants, exclusively for the construction and use of their railroad. The provision of tho statute relied on, confers upon the inhabitants of townships merely tho right of determining the time and manner in which cattle, horses, and other animals shall he restrained from going at largo in tho public highways. (R. S., p. 84, § 4.) By no possible construction can this provision of the statute include railroads; nor can it he supposed that the Legislature intended to have them included as highways, or to authorize individuals, through the power thus vested in the townships, to trespass on vested private rights. Hor does tho act of 184V, which is also referred to and relied on, confer any such authority, or change the common law rule applicable to the case under consideration. This act provides merely, “that no person shall recover for damages done upon lands hy beasts, unless in cases where by the bylaws of the townships, such beasts are prohibited from running at large, except where such lands are enclosed by a fence,” &c. (Sess. Laws of 1847, p. 181.) Thus far this act goes, but no farther, and itcannot be enlarged by implication or intendment. This suit is not brought under this act by the plaintiff to recover damage done on his lands by the defendants’ beasts; hence the act can have no legal bearing whatever on the case under consideration. This act does not require men to fence their lands, but merely precludes a recovery for damages done by beasts thereon, unless they are fenced. Nor does it grant any right to one individual to trespass on the private property of another, or to depasture at will railroads any more than other lands owned and possessed by individual citizens; nor can the Legislature, under the Constitution, confer any such right. But there is another view to be taken of this point made in the case, and which must be regarded as concluclusive. In the ease of the Tonawanda Railroad Company, vs. Munger, (5 Denio R., 255,) the Supreme Court in giving a construction to the provision of their statute, of which our act of 1847 is a substantial copy, say, “ that it is in its terms and spirit applicable to such lands only as are usually fenced, which cannot be done with the track of a railroad, and that no one ever supposed that such a strip of land, should be surrounded in its whole extent by a-fence, or that a fence could be maintained across the track at every intersection of a highway; that it would be entirely defeating the groat object fcr which railroads are allowed to be constructed.” This is undoubtedly a correct view of the subject; and the construction given to tlWr statute, is the only construction which can be given to our act of 1847, and protect the defendants in the enjoyment of their legal rights, and enable them to prosecute their business under their charter, without daily incurring the heavy penalties imposed upon thorn by the grant.

-If the plaintiff, under the acts referred to, had no affirmative right to graze his horses on the track of the railroad, it follows that they were there wrongfully; inasmuch as the common law gave him no such right. By way of illustration, suppose that the plaintiff’s horses had gone into another man’s wheat field, through a gate whieh had been left open by the owner, and killed themselves eating wheat: could the plaintiff have recovered of the. owner of the wheat, the value of the horses under the provisions -of the act of 1847 ? Clearly he could not; the horses would have been in the field without right; hence wrongfully there. Nor could the owner of the wheat, having left his gate open, recover under that act the damage done by the horses. Wheat fields are usually enclosed by fence, and in such a case the act would apply, and legally bar a recovery. Brainard vs. Bush, (1 Cow. R., 78,) is a case in point. Bush made maple sugar in a piece of unenclosed woodland, and left some syrup in his sugar works in an unenclosed shed, to which Brainard’s cow came in the night and drank, which caused her death. Chief Justice Savage in delivering the opinion of the Court, says, “ although the defendant was guilty of negligence in leaving his syrup where cattle running at large might have access to it, yet the plaintiff having no right to permit his cattle to go there, has no right of action.” This decision goes no further than to carry out an elementary principle of the common law. Horses in the township of Dearborn being free commoners under some township rule or regulation, does not change the effect of this principle of common law, or the vested private rights of the defendants or other individual citizens. The idea that because horses and cattle are free commoners they have therefore the lajvful right of trespassing on jrrivate property is absurd — preposterous in the extreme. What are free commoners? Where may they run? In Holladay vs. Marsh, (3 Wend. R., 147,) the Supreme Court say: “ Suppose a case whero a town has no common land, and they i«ss a by-law permitting cattle and horses to run at large, where are they to run ? Surely not on individual property. Where then ? — in the highway ? The public have singly a right of passage over the highway The owner of the land through which the highway passes, is the owner of the soil and the timber, except what is necessary to make bridges, or otherwise aid in making the highway passable; and if the owner of the soil owns the timber, why not the'grass?” The doctrine established by this decision is in accordance with a fundamental principle of the common law, which has been recognized by elementary writers, and judicial decisions, in England and this country for a great length of time. “ Though every highway is said to be the King’s, yet the King has nothing except the right of passage for himself and his people; the freehold and all the profits, as trees, &c,, belonging to the lord or owner of the soil, who may have .an action of trespass for digging up the ground of the highway.” (Cunningham’s Law Dictionary; also 3 Tomlin’s Law Dictionary, 788; 1 Burr, 143; 3 Bacon, 394.) Such has ever been the legal doctrine held in most, if not all of the States in the Union. (3 Kent's Com., 433; 3 John., 363; 8 Wend., 107; 12 Ib., 98; 20 Ib., 97; 6 Pet., 513; 10 Ib., 25; 6 Pick., 57; 6 Mass., 454; 16 Ib., 33; 5 Denio, 255; 4 Barbour S. C. R., 56.) The only decision found conflicting with this principle of law, which has been so long recognized and adhered to, is in Griffin vs. Martin (7 Barbour’s S. C. R., 297,) a case recently decided by the Supreme Court of the State of New York, at a term held in Saratoga, by Justices Paige, Willard and Hand; Justice Willard delivering the opinion, Justice Paige concurring- and Justice Hand dissenting; so that it was not the unanimous opinion of the Court, and it is to be hoped that it may bo overruled by the Court of Appeals, it being- neither sound in law, or just in principle.

But there is still another view to bo taken, and which is equally decisive of the case. It is a well settled principle of law, that where an injury, of which a plaintiff complains, has resulted from the fault or negligence of himself, or where it has resulted from the fault or negligence of both parties, without any intentional wrong on the part of the defendant, an action cannot be maintained. (8 John., 421; 1 Cow., 78; 19 Wend., 399, and the cases there cited; 21 Ib., 615; 5 Hill, 282, and the cases there died in note (a;) 6 Ib., 592; 5 Denio, 255; 4 Met., 49; 7 Ib., 274.) The plaintiff resided in the- vicinity of the railroad, and is not only presumed to have known the legal rights of the defendants touching their exclusive use of it, but the danger attending domestic animals that are permitted by their owner to be thereon; hence he was guilty of at least some degree of negligence, as well as a want of care and attention to the safety of his own property, in suffering his horses to stray away into a situation of extreme danger. But he was guilty of a culpable degree of negligence in permitting them, without care or pursuit, to stray away from his possession and be strolling wrongfully along on the track of the railroad, where trains of cars were almost .constantly running with great speed, day and night; and where they , might have been the cause of destroying not only the property, but the lives of others, who were lawfully pursuing their legitimate business. The injury to individuals and the destruction of human life, which has from time to time occurred in this country, in consequence of domestic animals being wrongfully on the track of railroads, is appalling, and justly exciting much alarm in the public mind.

The defendants in running the cars, were pursuing merely their lawful and legitimate business, and were clearly within the powers and privileges granted by the express terms of their charter. If the injury complained of had occurred in consequence of any negligence or fault on the part of the defendants, or the engineer conducting the train,, without any negligence or fault on the part of the plaintiff; the defendants most unquestionably would have been liable for all the damages, sustained by the plaintiff; but such is not the case presented. This, suit is an action on the case, sounding in tort. The wrongful injury alleged, constitutes the foundation of the plaintiff’s right of action; and' yet the facts submitted for the purpose of sustaining it, show not the-least degree of negligence, or want of care or skill on the part of the-defendants, or the engineer conducting-the train; and the ground upon-which the action was brought, or upon which it was expected that it could be maintained, cannot be perceived, for the case submitted neither shows a malfeasance, a misfeasance, or « nonfeasance.

It often happens that no precaution, care or skill can prevent a locomotive at tho head of a train of cars, running with their accustomed speed, from coming in collision with some domestic animal wrongfully on the road, and which tho owner has negligently suffered to go at large unrestrained; the engineer conducting tho train not being able in consequence of some curve in the road, the darkness of the night, or some other unavoidable cause, to discover the animal in time to stop the locomotive, and thus prevent tho collision. Under such circumstances, the defendants could not be held liable by any known principle of law; and if they could be, it would be unreasonable and manifestly unjust. They are required under heavy penalties, to run the cars, and expeditiously transport persons and property, &c.; and shall they, by construction based,upon nothing better than mere hypothesis, be compelled to assume the guardianship of all the stray cattle, horses, and swine, usually found strolling along on the track of their railroad ? Most certainly not. The owners are the only persons to look after them; and if they do not, it is but just'that they alone should suffer the consequences of their own negligence and wrongful act — of tieir own want of care, in the protection and preservation of .their own property.

The opinion of this Court is, that the plaintiff is not entitled to recover on the case submitted.

GASES' ARGUED AND DETERMINED IN THE SUPREME COURT OF THE STATE OF MICHIGAN. OCTOBER TERM, 1851. PRESENT I HON. O. W. WHIPPLE, Chief Justice. HON. WARNER WING, ') HON. SANFORD M. GREEN, [ Justices. HON. ABNER PRATT, )


author: By the Court, Green, J.

text:
    Cook et al., vs. Biddle et al.

    By the 9th Art. of the treaty concluded at Washington, on the 28ch March, 1836, between the United States and the Ottawa and Chippewa nations of Indians, after reciting that the Indians felt a strong consideration for aid rendered by certain of their half-breeds, and that wishing to testify their gratitude, had assigned such individuals certain locations of land, and that they had united in a strong appeal for the allowance of the same in the treaty, and that no such reservations could be permitted in carrying out the instructions of the President; itwas agreed that, in addition to the general fund set apart for half-breeds in the sixth article of the treaty, the sum of $48,148 should be paid for the relinquishment of this class of claims, to be divided in the following manner, and among others: “ To John A. Drew, for a tract of one section and three quarters, to his Indian family, at Cheboygan Rapids, at the rate of four dollars” an aero: Held, That the money was given to him absolutely, and not in trust, for his Indian family.
    Appeal fi’om Wayne Circuit Court in, Chancery.

      J. M. Howard, for complainants.

      Goodwin, for defendants.
   By the Court, Green, J.

The only question of any difficulty presented by the demurrer to complainant’s bill, depends upon the construction to be given to the IXth article of the treaty concluded at Washington on the 28th of March, 1886, between the United States and the Ottawa and Chippewa nations of Indians.

Was the money by that article stipulated to be paid to John A. Drew by the United States, for a tract of land assigned to his Indian family by the Ottawas and Chippewas, paid to him in trust for such family, or was it for his own benefit?

The article of the treaty referred to, reads as follows :

“ Whereas, the Ottawas and Chippewas, feeling a strong consideration for aid rendered by certain of their half-breeds on Grand River, and other parts of the country ceded, and wishing to testify then' gratitude on the present occasion, have assigned such individuals certain locations of land, and united in a strong appeal for the allowance of. the same in this treaty; and whereas, no such reservations can be permitted in carrying out the special instructions of the President on this subject, it is agreed that in addition to the general fund set apart for half-breed claims, in the sixth article, the sum of forty-eight thousand one hundred and forty-eight dollars shall be paid for the relinquishment of this class of claims, to be divided in the following manner: To Rix Robinson, in lieu of a section of land granted to his Indian family, on the Grand River rapids, (estimated by good judges to be worth half a million,) at the rate of thirty-six dollars an acre; to Leonard Slater, in trust for Cheminonoquat, for a section of land above said rapids, at the rate of ten dollars an acre; to John A. Drew, for a tract of- one section alid three-quarters, to his Indian family, at Oheboigan rapids, at the rate of four dollars; to Edward Biddle, for one section to his Indian family, at the fishing grounds, at the rate of three dollars; to John Holiday for five sections of land to five persons of his Indian family, at the rate of one dollar and twenty-five cents; to Eliza Cook, Sophia Biddle and Mary Holiday, one section of land each, at two dollars and fifty cents; to Augustin Hamelin June, being of Indian descent, two sections, at one dollar and twenty-five cents; to William Lasley, Joseph Daily, Joseph Trotier, Henry A. Lenake, for two sections each, for their- Indian families, at one dollar and twenty-five cents; to Luther Rice, Joseph Laframbois, Charles Butterfield, being of Indian descent, and to George Moran, Louis Moran, G. D. "Williams for halfbreed children under their care, and to Daniel Marsac, for his Indian child, one section each, at one dollar and twenty-five cents.”

By a supplemental article, it is further stipulated that none of the half-breeds or blood relatives of the said tribes, commuted with under the provisions of the ninth article, shall have any further claim on the general commutation fund set apart to satisfy reservation claims in the 'sixth article.

The inducement set forth in the ninth article, for assignment of certain locations of land by these nations, was the strong consideration they felt for aid rendered by certain of their half-breeds, and their wish to testify their gratitude on the occasion of making the treaty; and they profess to have made such assignment to the individuals who had rendered such aid. A very slight examination of the subsequent provisions of this article, however, will show that such assignments were not only not limited to those who might have rendered them aid, but that they were not limited to half-breeds. Thus, a'section of land is assumed to have been granted to the Indian family of Rix Robinson. That family consisted of his Indian wife and half-breed children; and so grants of land am assumed to have been made to six other Indian families. It can hardly be supposed each member of all these families had rendered such aid to their Indian relatives, as thus to call forth the gratitude of the nations to whom they were allied. So, also, grants are assumed to have been made to six individuals, who are described as being of Indian descent, and are evidently not half-breeds. This further appears from the language of the supplemental article before referred to, in which half-breeds and blood relatives are mentioned as having been commuted with under the provisions of the ninth article, and are alike excluded from any further claim on the general commutation fund. Again, grants are assumed to have been made to, half-breed children under the care of these several individuals, and to the Indian child of another. Had these children rendered such aid to the Ottawa and Chippewa nations of Indians, as to entitle them to claim this gratitude ? The idea is wholly inadmissible.

From this brief examination of some of the provisions of the ninth article of the treaty, it is perfectly clear, 'to my apprehension, that although gratitude for aid rendered by certain of their half-breeds was the inducement for the Indians to make the assignments of land, and to stipulate for the payment of money by the United States, instead of sanctioning their grants; yet, that.the assignments were not made, nor was the money to be paid to, or for the use of, the individual half-breeds who had rendered such aid. If I am correct in this proposition, it follows as a necessary sequence, that no presumption or implication of an intended trust arises from any supposed claim on the part of the assumed assignees, or obligation on the part of the assignors.

The Indians had no power to dispose of the fee of their lands, except to the United States, without the concurrence of the Government in such disposition. The President had instructed the commissioner who was empowered to conclude the treaty, not to assent to any assignment or grant of lands by the Indians. The Indians, either voluntarily, or through the influence of others, propose to set apart and reserve ■ certain tracts of land for certain families and individuals, and unite in a strong appeal for the allowance thereof in -the treaty. This is forbidden; but it is agreed that a portion of the moneys to be paid as the consideration of the cession made to the United States by the treaty, shall bo paid for the extinguishment of this class of claims. The division of the money is then agreed upon, and the particular distribution to be made of it is stipulated for in the treaty. Does it follow 'that this money should be distributed to the particular families or individuals for whom the lands were designed ? Hot, it seems to me, necessarily so. Land is a permanent thing, and not so likely to be wasted as money, by the improvidence of the Indian or his descendant. It is recited in the sixth article, that the Indians held in higher consideration some of their half-breeds than others, and that there is much difference in their capacity to use and take care of property, and provision is therein made for dividing them into three classes, one of which was to consist of such as should be judged incapable of making a proper use of the money allowed them. The assignments of land proposed to be made by the two nations, was a free gift, prompted by gratitude alone. The proposed recipients of their bounty were not all of them at least the individuals whose acts had inspired this emotion in the unsophisticated hearts of the Indians. But they could testify their gratitude by bestowing a benefit upon such as had rendered them aid, also upon such as might, from the circumstances in which they were placed, and the education they were likely to receive in the arts of civilization, be capable of- rendering them aid in the future. When money was to be substituted in the place of lands, it still remained for the Indians to determine upon the distribution of it. In doing so, they may be supposed to have considered what application or distribution of it would best accomplish the'objects they had in view; but the conclusion at which they arrived must be determined by the language of the treaty, in which it is expressed. For this purpose, it is unquestionably proper to look to the. whole treaty, and to make available all the aid it can afford in throwing light upon the question under examination. Considerable stress has been laid by the counsel for the complainants, upon the language of the supplementary article of the treaty, which was added “to guard against misconstruction of some of the foregoing provisions, and to secure,'by further limitations, the just rights of the Indians.” The language relied upon, as tending to establish the trust, is the following: “Nor shall any of the half-breeds, or blood relatives of the said tribes, commuted with under the provisions of the ninth article, have any further claim on the. general commutation fund set apart to satisfy reservation claims, in the said sixth article.” It is claimed that the word «commutation,” in this connexion, means the giving of one thing for another, as between the U. S. and those for whom the land was designed. This cannot be. The assumed assignors or grantors are no parties to the treaty. The lands are ceded to the government by the two nar tions at large through their representatives. The assumption, then, that these persons have been commuted with, throws no light upon the true construction of the ninth article. It is perhaps, not improper here to remark, that much of the language of this treaty is so loose that to give it a strictly legal and grammatical construction, would involve the most palpable contradictions and absurdities. Several examples of this character have already been adverted to, and many more might easily be pointed out. But suppose the word “commutation,” to have been appropriately used according to its ordinary signification, yet that signification is satisfied, whether the thing given for another is given to the . one from whom that other is received, or to a‘third person.

But why, it is asked, should the money paid in lieu of a tract of land granted to an Indian family, be given to the head of such family? and how does such a gift testify the gratitude of the Indians for aid rendered by then half-breeds? If it were necessary these questions might be readily answered. If they felt a strong consideration for aid rendered by certain of then half-breeds, they well might, and undoubtedly did '■also feel a strong consideration for the white traders who resided amongst ■them, and had identified themselves with their interests by marrying ■Indian wives, and rearing and educating families of half-breed children amongst them, who would probably be capable of rendering them important services thereafter. By proposing to grant to such families certain tracts of land, it does not seem to me improbable that they intended to embrace the heads of the families within that term, and that such grants were intended by them for the direct benefit of the father as well as the children. Assuming that the language does not import a trust, I can see nothing at all inconsistent with the expressed motives of the Indians, in giving the money to the father, as the most certain ■ and prudent means of benefitting the children. He was responsible for their education and support, and it is not at all singular that they should be willing to rely upon the natural instinct of paternity to impel the father to do justice to his children.

, Of the sum set apart by the ninth article, there was to be divided “To John A. Drew, for a tract of one section and three quarters, to his Indian family, at Cheboygan rapids, at the rate of four dollars.” This language does not express a trust, nor does it seem to me to import-any intention to create a trust. The-word “for,” in this clause, means “in lieu of,” or “in the place of;” and “assigned,” is understood, and must be supplied in the reading, before the words “to his Indian family.” If a trust had been intended, it might easily have been expressed thus: “To John A. Drew, in trust for his Indian family, for a tract, &e., assigned to^them.” It cannot be supposed that language expressive of a bust, was omitted through inattention or inadvertence, for in the same article several trusts are expressed. The money to be divided to Slater, is declared to be “in trust for Cheminonoquat,” and that to be divided to Lasley, Daily, Trotier, and Lenake, is declared to be “for their Indian families.” That divided to George Moran, Louis Moran, and G. D. Williams, was “for half-breed children under their care,” and that divided to Marsac, was “for his Indian child.” The conclusion deduced from comparing these several clauses seems to be almost irresistible, that the omission of any such words in the case of Drew, Robinson, Biddle, and Holliday, was intentional, and that they were carefully excluded. This view is further strengthened by another fact appearing upon the face of the same article. There was to be' paid “to Eliza Cook, Sophia Biddle, and Mary Holliday, one section of land each, at two dollars and fifty cents.” Whether Sophia Biddle and Mary Holliday, were members of the Indian families of Edward Biddle and John Holliday, respectively, we have no means of knowing, and probably no right to infer; but that Eliza Cook is a half-breed daughter of John A. Drew, appears from the bill of complaint in this cause, and is admitted by the demurrer. But it is said it does not appear that the Eliza Cook named in the treaty, and Eliza Cook, one of the complainants in this suit, are the same person. If they were different persons, and both embraced in the provisions of the ninth article of the treaty, as the complainants contend, it is highly probable that they would have been distinguished from each other. If the Indians intended to confer a benefit upon each of them, both must have been known to the Indians, and the necessity for distinguishing them would be apparent. Nothing being alleged to the contrary, the inference is that they are the same person.

The decree of the Circuit Court for the County of Wayne in Chancery, must be affirmed, with costs to the appellees.

Decree affirmed.

Whipple, C. J., dissented.


text:
    Wales vs. Lyon.
    The statute abolishing special pleadings, does not make special pleading void, when the parties hare voluntarily adopted it, joined issue, and proceeded to trial and judgment.
    Where a demurrer is oyer-ruled and the party pleads over, the right of objection is thereby waived, and he cannot afterwards on error, object that it was erroneously over-ruled.
    On demurrer, judgment will be given against the party committing thehrst error in substance, nnd not in matter of form merely.
    The judgment of a Court of competent jurisdiction, directly upon the point in issue, is asa plea, a tar, and as evidence, conclusive between the same parties and their privies.
    W., who had unsuccessfully opposed the discharge of L., as a bankrupt, is thereby estopped, in a suit afterwards brought hy him against L., to recover his debt, to which L. pleads his discharge, from showing the discharge was fraudulently obtained.
    Error to Wayne Circuit Court.
    Wales in March, 1849, sued Lyon in the County Court iu debt. The declaration is on a chattel mortgage executed hy the defendant on the 29th day of February, 1840, to secure the payment of $10,000 and interest hy instalments, as follows: $1,000 and interest on the 1st day of September, 1840; $1,000 and interest on the 1st day of March, 1841; $2,000 and interest on the 1st day of March, 1842; $2,000 and • interest on the 1st days of March, 1843, 1844 and 1845.
    The declaration is in the common form with the usual averment that defendant covenanted to pay, &c.; that the property mortgaged was sold to satisfy the instalment of $2,000 and interest, which became due on the 1st day of March, 1842; and that the subsequent instalments and interest, (less $1,558 73,) were still in arrear, &c.
    The defendant pleaded in bar: 1st, That the sum demanded had been satisfied hy a seizure and sale of all the property specified in the mortgage together with certain other property contained in another mortgage, &c. 2d, That on the 9th day of March, 1842, the defend-
    ant at &c., presented his petition in bankruptcy to the District Court of the United States for the District of Michigan, praying to he declared a bankrupt, &c., and that such proceedings were thereupon had, that afterwards to wit: on &o., at &&, the said defendant was hy said Court discharged of and from all his debts, and received a certificate thereof, and hy which he was fully discharged of and from all his debts owing ait the time of the presentation of his petition, and which were provable against his estate, &c.; and that the said debt and causes of action, set forth, &c., were and each and every of them was provable, &c.; and that said causes of action are barred by said discharge, &c.; concluding with a verification, &c.
    To the first plea the plaintiff replied, that said debt &c., had not been «satisfied, &e. Concluding to the country, &c.
    To the second plea the plaintiff replied in substance, and to the effect that said defendant, previous to, and a few days before making his application, &c., and for the purpose of giving a preference and priority to one Lawrence Myers, over his general creditors, confessed and caused to be entered in said Court, a judgment &e., which he fraudulently, corruptly, and in contemplation of bankruptcy, confessed, &c.; and also fraudulently and corruptly advised, procured and caused an execution to be issued thereon and levied upon his property, and the same sold &c., to give preference &c. And that said defendant with the like intent, assigned and transferred all of his accounts, notes, &c.; and also paid said Myers $1,200 in cash, and also wilfully concealed his property, and refused to surrender bona fide &c., to the benefit of his creditors, &c., concluding with a verification, &c.
    To such replication the defendant filed a rejoinder, in substance, and to the effect that the plaintiff ought not, by reason of anything in said replication, to have and maintain his aforesaid action, <fcc.; and ought not to be permitted to reply the said matters, &c., because he says that while the said petition' and proceedings in bankruptcy were pending, and before the granting and allowing said discharge and certificate, &c., the said plaintiff appeared in said Court, and resisted and opposed the granting and allowing of such discharge and certificate, and did then and there assign and allege, and insist for reasons, why the defendant should not be discharged, &c.; that on the 3d day of February, 1842, and a short time prior to filing his petition, he made an assignment or transfer of his most valuable assets, &c., and gave priority, &c., in violation of the provisions of the bankrupt act; and that he was also guilty of a fraudulent concealment of his property, <fce., and refused to comply with the orders of said Court, &c., and that such proceedings were thereupon had in said Court, that said causes and reasons so assigned and alleged against the granting and allowing <fec., were, by said Court, heard and determined &e., and said discharge and certificate allowed and granted, &c.; and that the said causes and reasons assigned and alleged, &c., embraced and included all and singular, the matters and things set forth and alleged in said replication to said second plea, &c., concluding with a verification, &c.
    And for a further rejoinder, <&c., the defendant says, that he did not unlawfully, fraudulently, and corruptly, in contemplation of bankruptcy, &c., and for the purpose of giving preference and priority, &c., confess a judgment, and advise or cause execution tobe issued thereon, and property seized and sold, &c., nor make a payment or assignment, nor unlawfully or fraudulently give preference, nor refuse to surrender his property, &c., concluding to the country, &c.
    To such rejoinder the plaintiff demurred, and assigned for cause, that the rejoinder did not aver the adjudication to have been upon the same debt. The defendant joined, and the demurrer was over-ruled by the County Court. The plaintiff thereupon filed a sur-rejoinder, in substance and to the effect, that he ought not to be barred, &c., because the indebtment mentioned in the declaration is not the same upon which the adjudication was had, &c.

    To this sur-rejoinder the defendant demurred, and assigned for cause, that so much of the plaintiff’s sur-rejoinder as related to a supposed claim, or indebtedness, was irrelevant and impertinent and in no wise an answer in law, &c., and that so much as alleges that said supposed claim or indebtedness was not provable, &c.; was no answer, &e., but a departure from the replication, &c., and assumes to deny what he had before admitted, &e.
    The plaintiff joined'in demurrer, and judgment was rendered thereon in the County Court for the defendant.
    The plaintiff sued out a writ of certiorari, and removed the cause into the Circuit Court for the County of Wayne, where the judgment of the County Court was affirmed. Thereupon the plaintiff sued out a writ of error, and again removed the cause into this Court.

      Fraser & Davidson, for plaintiff

      Goodwin é Emmons, for defendant.
   By the Court, Pratt, J.

- This cause, by a course of special pleading, is narrowed down to a single legal point, which is neither novel or difficult to determine when the proper and well settled rules of law are applied, although on the argument several points were made, and a range wholly unwarranted by the case was taken by the counsel on both sides. The main point to .be considered and determined is whether the defendant’s demurrer to the plaintiff’s sm-rejoinder was well taken. If it was, then the judgment below is correct and must be affirmed by this Court.

The ground assumed on the part of the plaintiff in error, that special pleadings have been abolished by statute, and that therefore the pleadings in this cause must be judicially regarded as notices merely, is not tenable. The provision of the statute does not go so far as to render special pleadings ipso jure void, where the parties have voluntarily adopted that system of pleading to join an issue in a cause and have without objection proceeded to trial and judgment.

This suit was instituted in the County .Court, and the plea to the declaration was filed before the act of 1849 became operative. The parties having commenced their pleadings in accordance with the common law practice before the act took effect, were by every principle of justice legally entitled to consummate an issue under that system of practice. But suppose the pleadings in the cause had not been commenced until after the act of 1849 became the law of the State, what would the legal effect have then been? Could either party have taken the advantage of it here, under a writ of error, not having made any objection in the Court below? Certainly not. The parties having of their own volition, adopted the common law form of pleading and having proceeded without objection to an issue and trial thereon are forever precluded, and their pleadings must be governed by the legal rules applicable to that system.

Another ground assumed on the part of the plaintiff in error, is that the County Court should have sustained the plaintiff’s demurrer to the defendant’s first rejoinder. This ground is equally untenable as the other. There is no doubt of that demurrer having been correctly overruled. The cause of demurrer assigned was that the rejoinder did not aver the alleged adjudication to have been upon the same debt set out in the declaration. Such an averment could not have been properly made. The nature of the case would not admit of it. Legally there was no adjudication in the District Court of the United States upon any particular debt, although the plaintiff proved some debt against the defendant pursuant to the provision of the act of Congress, yet that was not the question adjudicated. The subject matter in controversy in that Court was whether the defendant had been guilty of the fraudulent acts alleged against him by the plaintiff) if so, then he was not entitled to his discharge in bankruptcy. The defendant by his rejoinder legally and by every principle of pleading, followed up the plaintiff’s replication, hence the demurrer to the rejoinder was not well taken. But there is another view which must regarded as decisive of this question. The plaintiff did not rely on the sufficiency of this demurrer, but, on its being overruled by the Court, pleaded over by his sur-rejoinder. It is a well settled principle in pleading, that where a demurrer is overruled and the party pleads over, the right of objection is thereby waived, and he cannot afterwards object that it was erroneously overruled, (1 Hardin, 168; 1 Morris, 401; 3 Sew., 288.) This is in accordance with another well settled principle that must be familiar to every legal practitioner, viz: that where a demurrer is overruled and the party pleads over, no further notice is ever taken of the demurrer; and in making up a judgment record in such a case, the new pleadings only are incorporated, the same as if no other had ever been interposed.

It is true as a universal rule, that Courts, in giving judgments on demurrers, will, notwithstanding the defect of the pleading demurred to, give judgment against the party whose pleading was first defective in matters of substance, but not merely in matters of form. The declaration in the case under consideration is exjolicit, clearly setting out the cause of action in legal form, with all the certainty, as to every material matter, required by the rides of pleading at common law. The plea, in which the defendant sets up his discharge in bankruptcy, is also in legal form, and equally clear and explicit as to every substantive matter necessary to constitute it a valid plea. The replication to this plea, in which the plaintiff alleges the several fraudulent acts of the defendant, in view of bankruptcy, is full and certain as to every material matter, and otherwise sufficient, both in form and substance. The rejoinder to this replication, and by which the defendant avers a former adjudication, &c., of the several fraudulent acts charged, is also, as a pleading, sufficient in form as well as in matters of substance, to constitute it a valid pleading at common law. Thus far in the pleadings there are no defects in the matters of substance. It therefore becomes necessary to examine the plaintiff’s sur-rejonder, which is the next pleading in order, and to which the defendant demurred. By this surrejoinder the plaintiff says that he ought not to be barred, &c., because the indebtment mentioned in his declaration is not the same upon which the adjudication was had, &c. This neither takes issue upon the fact of a former adjudication, or introduces new matter, which can legally have the effect to avoid it. If this view is correct, the sur-rejoinder is a departure from the matters alleged in the replication; hence, irrelevant and impertinent; the defendant’s demurrer, therefore, assigning these causes, was well taken to this sur-rejoinder.

But it is assumed, on the part of the plaintiff in error, that the adjudication before the District Court,, on the matters set up in the replication, is not a bar, and that the principle of res-adjudicata, under the provisions of the bankrupt act, does not apply. If this is a sound legal position, then clearly the matter set up by the plaintiff’s sur-rejoinder is immaterial and impertinent, and instead of taking this step in pleading, he should have demurred to the defendant’s rejoinder, on the ground ■ that the doctrine of res-adjudicata did not legally apply to the case. But the position cannot be sustained.

It is a well settled general principle, that the judgment of a Court of competent jurisdiction directly upon the point, is, as a plea, a bar, or as evidence conclusive, between the same parties, or their privies, upon the same matter directly in question in another Court, and that no matter once litigated and determined, by proper authority, shall a second • time be brought in controversy between the same parties or their privies. (1 Phil. Ev., 321,-33; 1 Starkie, 216,-19; 1 East, 355; 3 East, 345; 5 Am. C. L., 132, 189, 191, 193; 6 Am. C. L., 272, 276, 278; 2 C. and H. notes, 824 to 832; 5 Conn. R., 550; 6 Ib., 508; 8 Ib., 268; 3 Cow., 120; 3 Am. C. L., 580, 581; 3 Peters, 193; 6 Ib., 470; 9 Ib., 8.) Such has ever been the rule, and although the object and the subject matter of the two suits or proceedings be different, yet the judgment of a court of competent jurisdiction upon a particular matter, fact or point, once litigated and determined, is conclusive between the parties or their privies. This principle has been repeatedly settled, and by a great number of judicial decisions. (7 Howard, 216, and the eases there cited; 8 John. R, 453; 2 Camp., 63; 9 John. R., 244; 2 Smith's L. C., 488 to 507, also 545 to 565; 8 Conn. R, 268; 16 Ib., 12.) Many other cases might be referred to on this point, but the principle is so universal and so well settled, that it must be unnecessary. It is the only safe principle that can be adopted as a general ride of practice, on the subject.

The question now arises whether the case under consideration is subject to these common law rales, or whether by some provision contained in the act of Congress to establish a uniform system of bankruptcy it is taken out of the common law rale. Certain it is that it cannot be taken out and made an exception to the general rule by implication or construction merely, as the rule of law has long been well understood that statutes are to be construed in reference to the common law, and it is never to be presumed that the Legislature intended to make any innovation upon the common law any further than the case absolutely required in order to carry the act into effect. (1 Kent Com., 464;, Plowden, 365; 4 Mass. R., 742; 15 Ib., 205.) And if the apparent meaning of a statute is opposed to well settled general principles it should be restrained or enlarged so as to conform to such general principles. (7 Mass. R., 523, ’4 and ’5.) This is the only safe rale to adopt in the construction of statutes. In view of so much hasty legislation, and so many crude ambiguous legislative acts, it is in fact the only rule that can be adopted with any safety to the public and individual rights and without often rendering statutes entirely inoperative. These rules are to be applied as well, when necessary, to the acts of Congress as to the acts of State Legislatures. But can it be necessary to apply these principles to any of the provisions contained in the bank-rapt act in order to settle the question under consideration? It is certain that the act in terms does not grant any such right as that contended for, and/if by vague construction, this class of cases is to be taken out. of and made exceptions to the well established doctrine of res-adjudicata, where is to be the limit — how many times may a creditor try the same question of fraud? The act is silent on the subject^ and if by mere construction a creditor, notwithstanding the common law rule, may try the same question twice, why not fifty times ? Such is not and cannot be a legitimate construction of the act. Nor does the case of Beekman vs. Wilson, (9 Met. R., 434,) give any such construction to it, or establish the absurd doctrine that a creditor in this class of cases, may litigate the same question as many times as he has notes or-demands, and if it did, it ought not to be regarded as law by any Court out of the State where the decision was made. It is true that there is one sentence in the opinion of the Court when viewed abstractly, which may be regarded as somewhat ambiguous, and as establishing perhaps, such a doctrine; but this ambiguity is entirely cured by a reference to the case stated, and the subsequent portion of the opinion. From the case stated, it clearly appeal's that on the trial of the cause the defendant gave in evidence his certificate of discharge under the bankrupt act, that thereupon the plaintiff' offered, by way of impeaching the discharge, evidence of a prior wilful concealment of property, &c., by the defendant. The admission of this evidence was objected to by the defendant on the ground that a hearing had been had before the District Court, upon objections made, not by the plaintiff, but by certain other creditors, involving the same questions, and which were tried by a jury who returned a verdict for the defendant^ the defendant producing the record of the proceedings in the District Court, <fee., whereupon it was admitted that neither the plaintiff nor any holder of the note then in suit, ever proved any debt against the defendant in bankruptcy, or had any notice of the issue and trial between the defendant and those other creditors, and that the action upon the note was pending at the time of the hearing before the Dictrict Court. The Judge overruled the objection and admitted the evidence. The Court in giving the opinion say: “ The statute fully warrants the plaintiff in taking these objections in avoidance of the discharge, notwithstanding other creditors may have relied upon the same acts as a ground of opposition to the granting of the discharge originally.” This corresponds with the real state of the ease. The plaintiff had never litigated the question of fraud in any Court, and the point in controversy and decided by the Court was whether the plaintiff was to be cut off and estopped from litigating this question merely because other creditors of the defendant had done so in the District Court. This point, beyond all question, was correctly decided. But the principle of res-adjudicata is not involved in the case, nor is it in fact, decided by the Court.

That creditors have the right, under the 4th section of the bankrupt act, to impeach a discharge on the ground of fraud, or wilful concealment of property, &o., if they have not litigated the question upon the proceedings in bankruptcy, no doubt can be entertained. Such is the legal effect of the decision in the case of Haxton vs. Corse, ( 2 Barb. Ch. R., 506;) and also in the case of Brereton vs. Hull, (1 Denio R., 75.)

Every creditor of a bankrupt, under the provisions of the act, had an election to litigate and try the question of fraud, in one of two ways:

1st. By appearing before the District Court, in which the proceedings in bankruptcy were pending, and interposing objections to the granting of the discharge and the issuing of the certificate; or

2d. By impeaching the discharge after it was granted, and when interposed by the bankrupt, in bar of a recovery in a suit, brought by the creditor, on his claim against the bankrupt in that or any other Court. But creditor cannot resort to both modes of litigating the question. Certainly he cannot by any provision contained in the act; and at common law no legal question has ever been more clearly settled than that where a party has an election to try a matter in different modes, or in different Courts, and makes such election, and tries it in one mode, he cannot again try it with the same party in any other mode — the one adjudication being legally conclusive.. (6 John. R., 168; 8 John. R., 383 and 453; 3 C. and H. notes, 842; 11 Mass., 445; 2 Blackford, 178; 6 Conn. R., 508; 8 Ib., 268.)

The bankrupt act, as well as every statute, which may contain some ambiguous provision, or which may be silent as to the mode of proceeding in some particular matter, must be construed with reference to fundamental principles of the common law — they cannot be interj>reted in any other way. This mode of construing statutes has always been adopted by our federal as well as our State tribunals, as a great variety' of judicial decisions in this country fully prove, and wbicb might be referred to, if deemed necessary.

'But there is still another view of the subject to be taken. It is an established principle in the exposition of a statute, that every part is to be considered, and the intention of the Legislature to be drawn from the whole act. “And it is also true,” says Chief Justice Marshall, in the ease of the United States vs. Fisher et al., (2 Cranch, 358,) "that where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the Legislature is plain, in which case it must be obeyed. But where rights are infringed, where fundamental principles are overthrown, where the general system of the law is departed from, the legislative intention must be expressed with irresistible clearness, to induce a Court to suppose a design to effect such object.” The doctrine of res-adjudicata is an integral, important, and very salutary principle of the common law, which has been legally adopted in this State; hence, has become the law of the State, and as such, is fully recognized by every legal tribunal instituted therein. And if the construction of the bankrupt law contended for is to obtain, it must inevitably have the effect to overthrow this fundamental principle of res-adjudicata incorporated into our State jurisprudence, and which is constantly arising in legal controversies between our own citizens, and in our own State Courts, Is *uch an innovation, and which is to render the operation of a legal principle unequal, to be tolerated by vague construction, and where too, it is not even contended that “the legislative intention” is expressed in the act with anything like “irresistible clearness

When the bankrupt act is fairly construed, in reference to the principles of the common law, the different provisions contained in it are rendered sufficiently clear and harmonious, and the act does not become repugnant to, or otherwise in effect, abrogate a fundamental principle of State jurisprudence, which Congress has no power over, so long as that system violates no principle of the federal constitution and is legitimately within the resorved powers of the State. In view of these principles and the construction of the act, there can be no doubt that the principle of res-adjudicata legally applies to the ease under consideration.

The demand upon -which this suit was brought in the County Court; as appears by the record, is a specialty, payable to the plaintiff by instalments, and bearing date some time prior to the time when the defendant made his application to he discharged from his debts under the bankrupt act. The legal presumption, therefore, is, until the contrary appears, that this demand has been outstanding in the hands of the plaintiff; since the execution and delivery thereof. That this demand, although the instalments were not all due, was provable under the fifth section of the act, as a debt in presentí, does not admit of a doubt. The fraudulent acts charged by the plaintiff against the defendant, were the matters heard and determined in the District Court; and it was a matter of not the least legal moment, what demand in particular the plaintiff there proved," and upon which as a creditor, he appeared and opposed the defendant’s discharge. The questions there litigated and decided were the allegations of fraud, including those specified, both in the second and fowrth sections of the act. The defendant by his rejoinder, avers that the charges of fraud there adjudicated, were the same alleged by the plaintiff in his replication. To this what does the plaintiff by his sm-rejoinder answer? He admits that the adjudication in the District Court was upon those particular allegations of fraudulent acts, and thereby legally admits the defense of res-adjuiicafa set up in the defendants rejoinder, without any other legal answer, as the other matter alleged in his sur-rejoinder was not only a departme from the matters set up in his replication, and to which the defendant’s rejoinder was a legal answer, but was entirely immaterial and impertinent; hence? bad on demurrer, under the rule at common law, and which must apply to the pleadings in this case.

The judgment of this Court therefore, is, that the judgment of the Circuit Court, affirming the judgment of the County Court must be affirmed.


text:
    Southworth vs. Palmyra & Jackson Railroad Company et al.

    The word “house” in section 2, article 12 of the Constitution of 1835, means the member* present doing business, there being a quorum, and not a majority of all the members •elected; and an act of incorporation passed by two-thirds of the members present, there being a quorum, is constitutional.
    Case reserved from Lenawee Circuit Court, in Chancery.-
    The question presented by the case was whether the act incorporating The Palmyra & Jacksonburg Railroad Company was constitutional, there being, on its final passage in the House of Representatives, but thirty-three members present, thirty of whom voted for the bill and three against it, — the whole number of members elected to the house being fifty, and the constitution providing, “ The Legislature shall pass no act of incorporation, unless with the assent of at least two-thirds of each house.”

      O. A. Stacy, for complainant.

      A. B. Tiffany, for defendant.
   By the Court, Green, J.

The question reserved depends entirely upon the construction of the term “house,” as used in the second section of article twelve of the constitution, which is in the following words:

“The Legislature shall pass no act of incorporation, unless with the assent of at least two-thirds of each House.”

A well established and most salutary rule in determining upon the constitutionality of a law, approved and adopted by this Court, is, that to authorize the judiciary to pronounce a law unconstitutional, the conflict between the constitution and the law must be apparent and palpable; an infraction of the provisions of the former must be established beyond all reasonable doubt, otherwise the law must be sustained. Green vs. Graves, (1 Doug. Mich. R., 352.) The construction contended for by the defendant Mason, is apparent from his plea. He insiste that the term “house,” in the section above cited, embraces all the members elected thereto. The complainant claims that a majority of such members, being present, and constituting a quorum to do business, compose the- “house,” according to the true construction of the term as used in that section.

In section 10, article 4, this word occurs twice. In the first clause, which provides that “a majority of each house shall constitute a quorum to do business,” it very clearly means all the members belonging to such house. In the last clause, providing that “each house shall choose its own officers,” it seems as clearly to mean a majority of all tjie members belonging to each house,- being present, and constituting a quorum for the transaction of business. In the latter sense it is evidently used in the 11th, 12 th, 13th, 14th and 15th sections of the same article.

From a careful examination of every provision of the Constitution relating to the organization, powers and duties of the legislative department of the Government, it appears to me evident that in all cases where a power is conferred, or a duty or restriction imposed upon either branch of the Legislature by the general designation “ house,” without any qualification expressed or necessarily implied from the language employed, that term means the legislative body or quorum to do business, comprising a majority of the members elected to and qualified to act as members of such body. Such I believe, has been the uniform construction of the word “ house ” in the section under consideration, by eveiy Legislature convened under the Constitution, with one or two exceptions; and such has always been the construction of the executive department, and this should have great weight with us in determining the true meaning of the framers of the fundamental law. There is not, then, any apparent and palpable conflict between the Constitution and the law. An infraction of the provisions of the Constitution has not been established beyond all reasonable doubt, and the act must therefore be sustained.

Certified accordingly.


text:
    Hatch vs. Hart.
    Replevin.
    On the trial the plaintiff under objection, was permitted to give evidence of the value of the services of his attorney and counsel in attending to the suit, as a part of the damages he had a right to recover under the provision of the statute, by reason of the unlawful detention of the property.

      II L. Stevens, for complainant,..

      M. Wisner, for defendant. _
   By the Court, Pratt, J.

The value of the services of an attorney and counsel for the plaintiff in replevin, or any fees actually paid by the plaintiff to his attorney and counsel in the prosecution of a replevin suit, constitutes no part of the damages contemplated by the statute, and cannot be legally taken into consideration in the assessment of such damages.