author: Blackman, J.

text:
    Boyce vs. Geyer.

      Mala Fides. — Where a person purchasing within a few days after its execution, from the payee, a note payable to bearer, and knows the maker to be a responsible farmer of foreign birth and limited knowledge of English — the character of the payee’s business, that he is a transient, unknown and irresponsible vender of patents, and buys such note without asking any questions, and at a large discount, he is not a tona fide purchaser.

      A purchaser who is told the maker claims his note was given without consideration and will not paj’ it, is not a bona fide purchaser.

      Berrien Circuit,
    1871.
   By the Court,

Blackman, J.

Boyce bought of Fulton, who bought of Lyon, one of the payees, the note of the defendant, of which this is a copy :

‘‘§400 00. Niles, March 9lh, 1869.
One year after date, the subscriber, of Niles Township, the county of Barion and State of Michigan, promises to pay Lyon & Burleigh or bearer, four hundred dollars, value received, with ten per cent interest.
JOHN M. GEYEll.”

When Boyce purchased the note he was told that Geyer was an honest, responsible, thick-headed Dutch farmer, who claimed he had no consideration for the note, and would have to be sued before he would pay it.

Boyce purchased before maturity, and paid full value.

Fulton bought of Lyon, besides Geyer’s note, the notes of three other responsible farmers, amounting in all to $1,200 00, for which he paid $1,000 00, as follows: $150 00 in cash, and a stallion, said to be worth by a disinterested witness, between $400 00 and $500 00. lie made the purchase in a very few days after the date of the note. He had purchased some notes of Lyon the year before. At this first purchase he asked of Lyon his business, residence, and the consideration, and then before paying for them saw the makers. On the rights these makers then bought, Fulton knew nothing was ever obtained. From the information then received from Lyon, Fulton knew him to'be one of thos.e' transient, traveling and unknown patent right dealers, who infest the State. Fulton knew Lyon was anxious to sell for what he could get. Geyer was resident but some 3 miles from his office. He knew Geyer was as responsible as the best men in the country, that he was a farmer, of foreign birth, and little acquainted with English writing. The makers of the. other notes were equally good. Fulton traded for the notes, asking no questions for conscience’ sake.

After his purchase he had two conversations with Geyer, in which Geyer stated his case.

tAt the sale to plaintiff he told him the note was one of the best he. had, was worth its face, that the maker was a thick-headed Dutch man, who would have to be sued, but that the plaintiff Would have no difficulty in collecting it, though knowing it was obtained by fraud.

The note was obtained#from Geyer by these practices :

Lyon, in company with a lad who signs his name Billy Burleigh, called on defendant in his field, and proposed to make him an agent to sell Fisk’s Fanning' Mill. Defendant objected, but-after listening to some honied words from Lyon the parties went to defendant’s house. Then defendant, agreed to take the agency. A contrae!? made out in blank and inter partes was read to Geyer, and executed in duplicate.

No consideration for the agency was asked, and no money to be paid for it talked of, yet in a part of the contract, not read to Geyer, was a statement that he had paid $400 00 in note for it (the appointment.) By this contract Geyer was only to pay $15 00 apiece f>r the mills, sell- them for $50 00, and pay over 25 per cent, of the profits to Lyon & Burleigh.

Then Lyon questioned him as to his property, and minuted his replies on the back of a slip of paper, and then asked Geyer to sign, it, which he did. Lyon then told him he did not want him to sign there, but on the other side. . On turning it over Geyer saw a printed blank not filled out. This blank is the note in question, without the letters in italics, or the figures. Geyer asked why he should sign that, and was told by Lyon that at the end of the year he should go to the maker’s shop in South Bend, find how many mills he, Geyer, had bought, and then he would fill up the blank with their share of the profits, so that in case of Geyer’s death he should have some evidence of his liability. On this representation Geyer signed the blanks. The note was afterwards filled out and stamped.

Upon these facts it is clear that this noto was without consideration, was obtained by fraud, and fraudulently put in circulation, and therefore void in the hands of the payees and every mala jides holder.

Were Fulton and Boyce, or either of them, purchasers in good faith?

In answering this question, I shall assume the law to be cor rectly stated in Goodman vs. Simonds, 20 How. U. S. R., 366; and require proof to defeat the holder’s right, that he had knowledge of the facts and circumstances, or that the transaction is attended by bad faith.

But knowledge of the facts in detail is not necessary. General notice that there is some fraud, though he may not know the precise nature, is as sufficient as if he were told there was something wrong about it. Byles, 119; 2 Pars. on Bills, 279.

Applying this rule to Boyce, we see that he had notice the note would be contested for want of consideration, and took it on the strong recommendation that it could be collected by Jaw.

For five years or more, the southern part of this State has been swindled of large sums by unknown dealers in patent or patented articles. This fact is quite notorious. The schemes have been successful through the aid of note dealers, and those men have relied on the Courts adhering to the law merchant, as understood by them. They should understand the law adapts itself to whatsoever men do as they do it — that wilful- abstinence from inquiry where the circumstances of the particular transaction are such as show that the purchaser abstains from the inquiry lest it should' disclose a vice in the bill, is evidence of bad faith — -that buying a perfectly good note at half price is evidence of bad faith — that shaving with these traveling and transient venders of patent articles in the plunder of one’s neighbors, can no more be honestly done through silence than buying at half price articles from a thief you know could not have come honestly by them.

The vender and the buyer both know that the note must be transferrable by delivery and must be held.by a Iona fide holder for value. The vender sees to it that he gets such a note, and the buyer sees to it that he is innocently ignorant of every fact which will weaken his title. There is simply a strife to see which shall get the greatest share of the plunder. Then the vender disappears never more to be séen or heard of.

Fulton says he knew Lyon was a travelling dealer in patents, but di-1 not inquire how he came by the note because he thought it was given for a patent pump.

He had a general knowledge of the swindling going on in patent rights. It seems to me he intentionally and for a purpose abstained from inquiring, because inquiry would have deprived him of $200 00 on this note. See ori this point, Chitty on Bills, 11 Ed., p. 258; Byles on Bills, side-page, 119.

That he was not bound'-to inquire where there were no reasons for it, I admit, but in this ease he knew too mudi to be silent and’blind together.

I must hold therefore that in purchasing the note he was knowingly participating with Lyon in the profits of the Iraud and that he is not a bona, fide holder.


source: Caselaw Access Project

author: Cooley, J.

license: Public Domain

text:
    O’Connor vs. Parker et. al.

    -Error to Wayne Circuit;
    Section 25, of the Bankruptcy Act, makes certain payments void, when made to prefer a cred* itors, Ac. A being insolvent, gave his note endorsed by B to a creditor. In a suit against the endorser, Aid,'that the note was valid, and was not tobe treated as a payment within the meaning of the act.
   Opinion by

Cooley, J.

This was a writ of error brought on a judgment rendered against O’Connor in the Court below as endorser .of a note made by McKinney & Co. The sole defense was that the note was made by McKinney & Co., and accepted by the Parkers in payment of a precedent debt, with the knowledge on the part of all the parties that McKinney & Co. were insolvent; that the giving of the note was with a view to prefer the Parkers as creditors; that McKinney Ss Co. were soon after proceeded against and declared bankrupts, and that by reason of these facts the note and endorsement were altogether void. The Circuit Court held these facts to constitute no defense, and the Supreme Court affirm that decision.

The argument of plaintiff in error was that section 25 of the Bankrupt act makes certain payments void when made to prefer a creditor or to defeat the pc bey of the act, and the giving of this note it was said was such a payment. The Court, however, held otherWise, considering that the payments mentioned in the act were those which reduced the means of the debtor and diminished his capability of paying his creditors ratably; not the more changing tho form of an obligation from an account to a note.

Judgment affirmed.


author: Campbell, C. J.

text:
    Druse vs. Wheeler et. al.

    Error to Washtenaw Circuit.
    A entered into a written agreement to exchange lumia with tho trustees of a Church, tho proper conveyance» to bo made as aeon tut tho trustees could got logal authority to act. On tho same day ho gavo verbal permission to tho trustees to outer upon the land he woe to convey, and to build hIioiIb. Tho fence was Hot back and sheds built. Some fifteeumonth» afterward», A moved hack hi» fence ho oh to ineludo the sheds, and the trustees, a few days laterroniovod tho fence ami took off the sheds, See. Held, That thore was no right of possession secured under this contract for the oxchangn of lands. Tho whole matter was con" tingent upon the society having tho right to act. Thore was no connection betwoon the formal license ami the written contract. The rights of tho trustees must have rested on the parol license, whatever they may lmvo been, and a parol license is revocable at any timo,
    to actions of trespass to lands it is proper to givo in evidence acts almwingjtho disposition with which the[trcspuHH is committed.
   Opinion by

Campbell, C. J.

Plaintiff;' brought trespass against defendants for breaking his close and committing various grievances, including the removal of certain fences and sheds, and an imprisonment of his person. Defendants under the general issue gave notice of defense, and also of title in a Baptist Church of which they were trustees, and as such did the acts 'u question. It appeared that the plaintiff owned a farm adjoining the church lot, and November 29,1867, entered into a contract purporting to be with the trustees, whereby, as soon as the latter could get legal authority to aot, plaintiff was to deed, by warranty deed, to the churoh the lot they occupied, and a part of his adjacent premises, and the ohurch was to quit-claim to him the half quarter section, including the farm and church premises, and agreed to oocupy the land deeded by him for churoh purposes, parsonages, sheds, &c., to build their erections at certain places, and not to sell the premises for any other purposes except for farming.

On the same day plaintiff gave verbal permission to build horse sheds on that part of his land which was ultimately to be conveyed to the church, and the parties set back the fence and began to prepare the land and had got the sills laid upon the ground when further work was suspended by reason of the cold. In April it was about to bo resumed, when, according to plaintiff’s proofs, he revoked his'permission and relused to allow anything more to be done. The parties, however, went on and built their sheds. Some fifteen months thereafter, plaintiff moved back his fence so as to inolude the sheds, and a few days after the defendants took down- the fences, removed the sheds, and committed the trespasses complained of. There were 17 sheds and they were for the individual use of such as paid for them.

The principal error assigned related firsl, to the rulings of the Court, touching the respective rights of the parties concerning the premises in question ; second, to the elements which might enter into the case as causes of damage.

The Court below held that if the sheds were built by plaintiffs permission for the uses contemplated, they and the land in front of them necessary for access wore in the possession of the church, and plaintiff could get no lawful possession again except by voluntary surrender or upon legal process, and that any other taking of possession would make him a wrong doer. That the trustees might lawfully remove the fence, and take off thesheds without becoming trespassers. .Tt was further held that if the trustees entered the land and erected the sheds under or upon the conditions of the contract to exchange lands, whidh was afterwards reduced to writing, then by the terms of that contract it was the duty of the plaintiff to tender to the trustees a deed of conveyance of the premises, so as to offer to perform on his part before taking steps to revoke the liconse or gain possession of the lands where the sheds were.

Held, That there was no right of possession secured under this contract for the exchange of lands. The whole matter was contingent upon the society having the right to act. There was no connection between the formal license and the written contract. The rights of the trustees must have rested on the parol license, whatever they may have been, and a parol license is revocable at any time. The verdict, finding the defendants trespassers must rest on the absence or revocation 6f the license; and, if revoked, it was before the sheds were built, and the lapse of time between the revocation and the trespass exceeded any possible term required by season or necessity to remove them, and whether they were liable for their value or not they were no less trespassers. The Court was not called upon, therefore, to pass upon these proprietary questions.— The case was thought not to be distinguishable from that of a license to go upon Fair grounds or other places of lawful resort on occasions when they are in use for specific purposes. It was deemed evident that the rulings of the Court were all made upon the assumption that the permission was lawfully connected with the written contract. - The entire theory was based on insufficient grounds, and the rulings were erroneous.

* It was alleged as error that parol proof was admitted that certain of the defendants were acting trustees of the church. But the rule was considered settled that except for some pecular purposes, such evidence is sufficient. The Court could not try titles to office in any such litigation as the present.

It was charged as error that testimony was excluded as showing the disposition and spirit with which the trespass was committed and the malicious arrest of the plaintiff, to get him out of the way, while the trespass was to be consummated.

On the argument it was admitted that these circumstcnces should have been shown, except as to the arrest of the plaintiff, which it was claimed, would have been a ground of action by itself and therefore should not have been considered.

Meld, however, that the authorities clearly recognize the right to recover for such an injury done in connection with the wrongful intrusion as an act of aggravation, in actions for trespass to lands.— The decision of the Court was erroneous in this respect.

There was error also regarding the question of costs. The statute gives costs to the plaintiff, who recovers any sum in trespass, however small, where the title to lands or tenements, or a right of' way, or a right by prescription or otherwise to any easement in any land, or to overflow the same, or to do any other injury thereto, shall have been put in issue by the pleadings, or shall have come in question on the trial of the cause. Both title and license were set p, and each is within the clear intent of the statute.

Judgment reversed and a new trial ordered.


author: Patchin, J.

text:
    James Littell vs. Alfred B. Hinman et. al.

    An order entered after verdict and before judgment, extending time for settling bill of exceptions isas valid and binding as if made after judgment.

      Wayne Circuit,

      March, 1871.

      Dickerson & Dickerson, for Plaintiff.

      G. A. Kent, for Defendants.
   By the Court,

Patchin, J.

This case was tried in the November term, 1870, and a verdict rendered against defendants on the 15th day of December, 1870. On the 13th of January, 1871, an order was entered extending the time in which to settle a bill of exceptions until the further order of the Court.— January 19,1871, a motion for a new trial was argued and sub mitted. January 28, 1871, the motion for a new trial was denied and judgment was at the same time entered on the verdict, the 24th day ot January, 1871, being the first day of the next succeeding term. No further order extending the time has been made since, and now, (March 20,1871, being the next term after the cause was tried) the defendant presents a hill of exceptions for settlement.

The plaintiff objects, on the ground that the term at which the cause was tried having passed, the Court cannot now extend the time so as to settle a bill of exceptions. The statute provides that a bill of exceptions shall be settled as provided by the rules of Court. (0. L., § 3489.) Rule 85 provides that a bill of exceptions shall be settled during the term at which the trial was had, unless the' Coürt or Circuit Judge shall otherwise order.

The Supreme Court, in construing this rule, say that a bill of exceptions must be settled at'the term in which judgment was entered, or an order entered at that term, extending the time. 14 Mich., 334.

It is conceded in this case that the order extending the time was Altered at the same term of the judgment. But it is claimed that, being entered before the judgment, it was not binding, and therefore cannot be now considered.

If the order was premature and the bill of exceptions could not be settled until after judgment, there would be some force to the objection. But if, on the other hand, a bill could be settled at the time the order was taken, it was already within the power of the Court to extend the time for that purpose. A bill of exceptions has been defined to be the statement in writing of the objections made by aparty in a cause to the decision of the Court on a point of law. The object of the bill of exceptions is to put the question of law on record for the information of the Court of error having jurisdiction of the cause.

The theory of the law is that the bill of exceptions must bo tendered at the time the decision complained of is made; or if the exception be to the charge of the Court,it must be made before the jury have given their verdict.

In practice, however, the.point is merely noted at the time and the bill settled afterward, being, however, nothing more than a mere amplification of -the notes already taken, and containing only those points to which exceptions have been made.

The statute only limits the time for completingthebill,leaving the exceptions to be made as above indicated. It will be seen then, that the bill of exceptions in a cause is really made (although not put in form), even before the verdict; and inasmuch as it is only intended to contain suph matters as do not appear upon the record proper, and only such as are completed before the judgment, it follows, in the absence of any statute prohibiting it, that a bill of exceptions may be Settled before judgment.

In the ease at bar, then, a bill of exceptions could have bee n settled at the time the order extending the time was entered.

It follows, therefore, that the order was valid and the time properly'extended. The objection to settling a bill of exceptions must theiefore be overruled.


author: Graves, J.

text:
    Grovier vs. Hall.
    An administrator who fails to inventory property, knowing the same to belong to the estate of the decedent, but treats the same os the property of decedents widow, the Probate Judge approving and allowing alleged equitable claims in her favor, equal in amount to the value of such property, and allowing the final account of the administrator and ordering and discharging him. from liability on his bond, Held, That the administrator could not tie heard to say against heirs and next of kin ou final accounting, that a decision of this sort was unimpeachable. If he had possession of funds which he knew belonged to the estate* or which he had reason to believe so belonged, his omission to place, them on the inventory will not excuse him from accounting for them,
    agreement of Jury — Decision by Court on the evidence produced before Jury, irregular .
    Error to Macomb Circuit.
   Opinion by

Graves, J.

This was an appeal by the plaintiff in error, as one of the next of kin and heirs at law of decedent, from an order of the Judge of Probate, of June 9,1865, allow ing the final account of Hall as administrator, and discharging him from liability upon bis bond to the estate. The parties agreed upon issues which confined the accounting to certain bank stock which stood in the name of decedent, to moneys received by Hall from the w'idow of decedent and to a claim of interest.

These items were not put upon the inventory, and it was claimed by plaintiff in error that these moneys and the proceeds of the bank stock,1 together with some interest, were assets of the estate, and were chargeable against Hall in his account. The respondent claimed that these effects were all treated as the property of the widow; that the Judge of Probate had allowed $24,000 of claims against the estate, which were in equity the property of the widow ; and that the supposed assets in question were regarded as her own under the circumstances. No commissioners were appointed to pass upon claim*, so far as can he gathered from the record, and the Judge of Probate performed the duties of commissioners, and. made the allowance now said to be in favor of the widow.

On the trial, evidence was given to show that the widow and administrator were brother and sister; that after her husband’s death the widow delivered to her brother some $1,400, of which $1,000 was taken from the private trunk of decedent; $200 received from a debtor, and the residue was derived from a sale of bank stock. Also, that the administrator knew whence these [securities came, and that, on their receipt, he gave to the widow securities running to her individually, and which are still unpaid.

Respondent gave evidence tending to show that in June, 1851, the Probate Judge allowed claims against the estate in favor of several parties, for the benefit of the widow to the amount of about $200; that the widow had treated the moneys as her .own, and had lent them to respondent on securities running to herself; that plaintiff in error knew of such dealing, and of the source from which the funds were derived, and as agent of the widow, had collected interest on the securities given to her. To rebut this, plaintiff in error offered to prove that he had not collected anything on said securities since coming of age, and that the claims allowed against the estate were purchased with the proceeds of the estate by the administrator, and assigned to the widow without his knowledge or consent.

This evidence was excluded on objection by defendant in error, that the award of the Probate Judge could not be im. peached. Held, That the administrator could not be heard to say against heirs and next of kin on final accounting, that a decision of this sort was unimpeachable. If he had possession of funds which he knew belonged to the estate, or which he had reason to believe so belonged, his omission to place them on the inventory will not excuse him from accounting for them and he cannot defend himself on the ground that he had regarded them or treated them as lent.

The jury were sent out below to find a verdict. While they were gone defendant in error moved the Court to decide the case without a jury, on the ground that the issues were by law properly triable by the Court alone. The jury disagreed and the Court refused the motion. Afterwards, and upon the evidence before the jury, the Court affirmed the order of the Judge of Probate. The parties consented that the evidence need not be retaken. Held, That the Court should have empanneled a new jury, the case involving issues of fact, as well as of law.

The order of the Circuit Court affirming that of the Probate Judge, was reversed with costs and a new trial ordered.


author: Patcihn, J.

text:
    Robert Hosie vs. E. Harrington et. al.

      S. L. 1869,101, provide that when suit is commenced against two or morejotnf defendants, one or more of whom shall reside or be found in the county wiieie the suit shall be brought,and ono or more of the defendants shall be served with process or declaration in tho county whore suit is commenced, the plaintiff in such action may sue out one or more writs of summons, or other w i it whereby such suit was commenced, directed to t£e county where such defend* ant not„Bo served may bo found. Held, that the statute applies only-to defendants jointly liable.

      Wayne Circuit

    1871.

      D. Dickinson, for Plaintiff

      D. C. Holbrook, for Defendant.
   By the Court,

Patcihn, J.

This ease was commenced by declaration, and one of the defendants, who resided in this county, was served, and another defendant, who is not jointly liable, and who lives out of the county, was also served with declaration.

The law of 1869, page 101, provides that when suit is commenced against two or more joint defendants, one or more of whom shall not reside of be found in the county where the suit shall be brought, and one or more of the defendants shall be served with process or declaration in the county where suit is commenced, the plaintiff in such actions may sue out one or move writs of summons, or other writ whereby such' suit waB commenced, directed to the county where such defendant not so served may be found.

The only question for consideration is, whether the law above referred to applies to all cases of defendants, whether jointly liable or not. or whether by joint defendants is meant only those jointly liable.

T have been unable to find any cases in the books on this snb • ject to aid in giving'»construction to the law. In cases where the defendants are jointly liable', the appearance and defense of the resident defendant would in some degree at least protect the interests of the non-resident defendants; but in cases where there is no joint liability, the resident defendant might be quite as much interested as the plaintiff to establish ' the liability of the non-resident defendant.

It is easy to believe that the law was not intended to apply to defendants generally, and hence the use of the qualifying term making it applicable only to joint defendants, or defendants jointly liable. I am of opinion, therefore, the service on the nou-residondent in this case was ndt warranted and must be set aside.


author: Christiancy, J.

text:
    The People vs. Johr.
    The Court will take judicial notice as to who is Deputy Auditor Generat; and his endorsement on a County Treasurer’s bond of the words, “ Official bond of H. Johr, County Treasurer of St. Clair County, to the Auditor General, 1865 and 1866. $20,000. Recorded and filed May 30,1865. S. D. Bingham, Deputy Auditor General,” will be heldas an acceptance and approval by the Auditor General.
    A County Treasurer neglected to have his bond approved by certain officers indicated by statute. On a suit on the bond in behalf of the People, to recover the proceeds of sales for delinquent taxes, Held, That the Treasurer, who on the faith of the bond was allowed to make the sales and secure the money, and his sureties, could not afterwards be heard to make the objection that the bond executed by them and accepted by the Auditor General, was not approved by the officers required by statute. The additional precautions provided were intended solely for the benefit of the State, not at all for the benefit of the defendant or his sureties.
    Error to St. Clair Circuit.
   Opinion by

Christiancy, J.

This was an action of debt brought in the name of the people against Johr and his sureties, on a bond given by Johr, as County Treasurer of St. Clair County, to the Auditor General, conditioned for accounting for all moneys paid to him for sales of lands for taxes at the annual tax sales in said county. The declaration alleges the non-payment of $7,490 88 received for the sales of 1866. It was admitted that he had that amount in his possession November 2, 1866.

The bond appears to have been approved by one Circuit Court Commissioner of said county, and this approval only was alleged in the declaration. There was no approval by the Prosecuting Attorney or other commissioner, nor was there any express approval by the Auditor General upon the bond, but it contained the following endorsement: “ Official bond of H. Johr, Treasurer of St. Clair County, to the Auditor General, 1865 and 1866. $20,000. Recorded and filed May 30, 1865.— S. D. Bingam, Deupty Auditor General."

On the trial the bond was first admitted, subject to objection. Defendant then offered to show that Johr had been robbed of thejjmoney, which offer was rejected by the Court — The bond was then; excluded on the ground that it was not executed and and approved according to the statute. It was therefore held that the action could not be maintained, and this is the main question on the appeal.

It was, however, first held that, so far as the purposes of this suit went, it must be considered that the bond had been delivered. It would be fair to presume that, as the statute requires it before the County Treasurer sells lands, and this Treasurer did undoubtedly sell. Besides, defendant did not file any affidavit denying the execution of the bond, according to Rule 79 of the Circuit Court. Further, it was held that the Court would take judicial notice that S. D. Bingham was Deputy Auditor General and that his endorsement had the same validity as if signed by the Auditor General himself. It also shows an approval and acceptance by the Auditor General himself.
It was admitted by the Court for. the purposes of the case that, unless the bond could be treated as a statute bond, it should have been declared on in the name of the obligee, not in that of the People. It was further considered that the Auditor General might have refused the bond without the approval of the officers above mentioned, and have ordered some person other than the County Treasurer, to make the sales; as between the County Treasurer and the People, it was probably his duty so to do.
It was, however,’held that the Treasurer, who on the faith of the bond was allowed to make the sales and secure the money, and his sureties, could not afterwards be heard to make the objection that the bond executed by them and accepted by the Auditor General, was not approved by the officers required by statute. The additional precautions provided were intended solely for the benefit of the State, not at all for the benefit of the defendant or his sureties.
Judge Christiancy examined-the authorities upon the question and found that all sustained this view of the case, except an ill considered case in 6 Georgia. The bond was therefore ordered to be treated as a statute bond, the judgment of the Court below was reversed and a new trial ordered.


author: Patciiin, J.

text:
    Elisha Clark vs. Harry Spencer.
    Suit commenced in"Wayne Circuit by declaration in assumpsit. Neither party resided in Wayne County. Defendant plead in abatement the' want of jurisdiction in the Courttlieo statute providing that actions of this kind shall he tried in the county where one of the parties shall reside at the time of commencement of suit. Held, on demurrer t-plea in abatement that tho law referred to does not pvavent the commencement of the 6uit in a county where neither party resides, but only the frialof the cause, and that tho only effect of the law in such case is to remove the cause for trial into a county in which one of the parties resided at the time of the commencement of the suit.

      Wayne Circuit,

    March, 1871.

      J. W. A. ¡S. Cullen, for Plaintiff.

      L. T. Griffin, for Defendant.
    Demurrer to plea in abatement.
   By the Court,

Patciiin, J.

The plaintiff in this case resides in Windsor, Canada, and the defendant in Oakland County, in this State.

The suit was commenced by declartion in assumpsit, which was served upon the defendant in this county. The defendant put in a plea of abatement, to which.the plaintiff demurred.— The only question raised by the demurrer is, whether both parties being non-resident, this Court has jurisdiction of the cause. It is conceded that, so far as the pleadings show, before the plea in abatement, jurisdiction was complete, but it is claimed that as soon as it appears that both parties are non-residents that jurisdiction ceases.

The statute provides that actions of this kind shall be fried in the county where one of the ¡parties shall reside at the time of commencing such action, unless the Court shall deem it necessary for the convenience of parlies and their witnesses, or the purposes of a fair and impartial trial; to order any such issue to be tried in some other county, in which case the same shall be tried in the county so designated. Laws of 1809, page 9. My attention has not been called to any other statute affecting the case in any particular. It will be noticed that the place of trial is only mentioned here, and not the commencement of suit. It is quite clear that the effect of the law would be to remove the cause for trial in the county where one of thepart'ei resided at the commencement of the suit, unless otherwise ordered by the Court for some of the reasons mentioned in the law, for if the cause is tried in such county the law is fully complied with.

It cannot be claimed that the cause must be tried in the county where it is commenced, for the reason that there is no such provision in the law, it only providing that regardless of the commencement,the cause must be tried in a certain locality. The case at bar undoubtedly, unless coming within the exceptions, cannot be tried in-this county.

The demurrer, therefore, must be sustained.


text:
    Tenent vs. The Muskegon Booming Company.
    Bill in equity dismissed* it appealing that complainant has an adequate remedy at law.
    Appeal from Muskegon Circuit.
   Opinion by

Christiancy, J.

^Tho bill was dismissed below upon demurrer, and the question was whether it stated a case which entitled the complainant to equitable relief. June 1, 1869, Thoden Newell owned, some land purchased of the United States, on the Muskegon River. He had platted the lauds elear of the water and leased the water privileges to the defendant company. The lease was to expire March 1, 1870, and defendants were in possession transacting their busines, J une 1, the aforesaid Newell sold to complaiuaut for §26,000, twenty-three lots fronting on the said river and extending to the center of the stream, subject to the public right of navigation. It was also subject to the lease, and complainant was entitled to the rents. Complainant in due season notified defendant that he should want.possession of the leased premises as soou as the lease expired, as he required this part of the property for his own use, he having a steam saw mill in the immediate vicinity.— But complainant has been unable to get possession of the premises, as defendants persist in holding over; so he has 100,000,000 feet of logs which ho wishes to raft to his mill, but is unable to do so because of the course of the defendants. Irreparable injury is charged and the complainant prays that the defendants may be do-creed to remove forever, and release to complainant all claim and pretence of claim to said lands; that complainant’s title may be decreed free from the cloud created by such claims, that -defendants may bo enjoined from using the lands, etc.

Held, That supposing the averments of the title to be true, no case requiring the interposition of a court of equity was made out. The complainanant has a clear and perfect remedy at law. It is the common case of a tenant holding over after the expiration of his lease, and no reason is shown why the tenant cannot avail himself of the summary action given by the statute, and oust the defendants, or why he cannot resort to an action of ejectment. If complainant had proceeded at law, ho might have obtained the auxiliary writ of injunction from the Court of Chancery to restrain the defendants from injuring his property, but there is no .ground for exercising- original jurisdiction. The Court considered that no case was "made which warranted relief upon the ground of a cloud existing upon complainant’s title, nor did it consider the danger of irreparable injury by any'means as strong as charged in the bill.

The decree of the Court below, dismissing- the bill, was affirmed, with ccsts.


text:
    James Hartness vs. The Great Western Railway Company of Canada.
    Tl&lntiff shipped certain góocls by & W* Railway ft'ofe Detroit to KoW York-* City, the price for the whole Service bring ftgfeod Upon by plaintiff •Ahdcomp'iny, And at the same time, plaintiff signed an agreement with the company that the latter would not be liable fair loss.óf market or other claims, ai isihg from delay or doténtioh, on the journey, under any circumstances. The goods were detained at Suspension Bridge, tho N. Y. Central Company refit sing to"rcCeivo them f whereupon suit was brought’by plaintiff to recover damages.

      Held, That tho responsibility of the common carrier to convoy the property, as agreed, to its destination, having undertaken to do so. and fixed tho price for the service, may bo waived by the consignor, and tho common liability may bo waived by a clear and distinct agree * merit. And when a person making a contract actually rigns a paper referring in.plain terms to a condition on the back of tile paper itself, and a like one is at the same t* mo delivered to him, the law presumes that he understands and assents to oach and every condition contuined theroin.
    This is an action against the railway company for damages occasioned by the delay of freight in'transit from Detroit to New York.
    The ease \Vas trie 3 by a jury, and a special verdict rendered.
    The special verdict sets forth that in December, 186J, and January 1885, the plaintiff delivered to the defendants at Detroit,certain goods to be sent over their road to New York City; that the charge agree'd upon was seventy-five cents per hundred ior the entire distance; that at each shipment of goods the defendants gave to plaintiff a receipt or shipping note containing the following: “Received from James Hartness, the undermentioned property, to bo sent by the Great Western Railway Company, subject to their tariff, and under the conditions slated on the other side,” arid signed by the agent of the company. At the same time the plaintiff executed and delivered to the defendants a paper or order, signed by him, containing the following: “ The Great Western Railway Company will please receive the undermentioned property directed to Colgate & Co., New York, to ho sent subject to their tariff’, and under the conditions stated on the other side." The conditions above referred to were not as a matter of fact actually read by the plaintiff. It appears further that the delay was occasioned by the refusal of tho New York Central Railroad Company to receive the goods at Suspension Bridge, after they had passed over the defendant’s rqad, and forward them to their destination, the defendants having no business relations with said road.
    It is conceded that, if the conditions on the back of the papers above referred to are binding, then the defendants are not liable in this action for the delay at Suspension Bridge, one of the conditions being that they will not'under any circumstance be liable for loss of market or other claims arising from delay or detention of any train, whether, in starting or at any of the stations or in the course of the journey.

      D. O. Holbrook, Attorney for Plaintiff.

      T. Romeyn, Attorney far Defendants.
   By the Court,

Patchin, J.

Thq relation of common carriers to the public is one of the mostimportant as well as interesting subjects with which thfe judiciary have to do. v

The question is very fully discussed by the Supreme Court of this State in 16 Mich., 79. The question there discussed whether the nature of the business done, or the person doing itj gives character to warehousing, does not, however, arise in this case.

Common carriers, when they become such, assume certain relations to the public that they cannot dispense with except by the consent of the parties interested; and, indeed, by the laws of 1867, page 165, only when .consent is given in a certain manner.

In the case above referred to, 16 Mich., 111, it is said that “ subject to reasonable regulations, every man has a right to insist that his property, if of such description as the carrier assumes to convey, shall be transported subject to the common liability.”

Whether it is the policy of the law to protect a man against his own acts, by prohibiting his entering into a contracp, although fully and fairly understood by him, not because he may thereby injure his fellow men, but only for the reason that in the opinion Of the law maker it would not be for his interest to make such a contract, may well be questioned.

It has generally been supposed that the great object of gov* ernments and law is to protect the citizens in such undertaking as to his own judgment may seem best, subject only to such restriction as will fully prevent his neighbor’s interest from being in the least affected.

The presumption of law is, that every one understands its provisions, and ignorance in that regard cannot be pleaded in law. It would seem that a degree of intelligence that would enable a person to understand intricate questions of law would be quite sufficient to protect him against the evil consequences of his own contracts, especially when it is remembered that those who have to do with common carriers are in almost every instance men of large experience, who would hardly admit that they require the protection of the law against their own acts. How successful the law makers will be in this respect- remains to be seen.

It is claimed, on the part of the plaintiffs, that in fixing the price to be paid for the entire distance, the defendant thereby became responsible; but it can hardly be said that that responsibility cannot be waited by a clear and distinct agreement. I cannot avoid the conclusion that where (as in the case at bar) a person making a contract actually signs a paper referring in plain terms to a condition on the back of the paper itself, and another one containing the same conditions is delivered to him at the same time, and this continuing through several transactions with precisely the same papers in each, then the law presumes that he understands and assents to each and every condition contained therein.

It follows, therefore, that the contract made by the plaintiff is binding, and he cannot recover in this action for any damages sustained which were expressly waived by his Contract. The judgment on the special verdict must be for the defendant.


text:
    Wager vs. Peck.

      If a paper supposed to constitute a part of the bill of exceptions is not incorporated in the body of the bill as signed by the Judge, it must appear by meaos of identiiication contained in tho bill that it was made a part of it by tho Judge who settled the bill of exceptions.
    Under tho act of 1869, to regulate tho practice in charging'juries, the requests complied wtih or refused do not constitute an integral part of tho record to be returned on writof error independently of any bill of exceptions. The statute does not change the form or ofllce of a bill of exceptions or tho mode of reviewing instructions.
    Error to St. Joseph Circuit.
   Opinion h;j

Graves, J.

On inspecting the record it is clear that the assignments of error are all based upon supposed exceptions to refusals to charge as requested- and to the charges given, while the return to the writ of error affords no ground for the objection. The supposed bill of exceptions neither shows the requests supposed to have been made or the charge which the Court gave, or sets forth any exceptions, or states that either party prayed instructions. Nor does it suggest that any other was made a part of it. It is true that there are two papers in the return, which seem to have been made as .requests on each side, and the word “refused” is written against those for the plaintiff, and the word “ given” on one for the defendant. But those papers and marks have no other authorization than such as they derive from the circumstance that they are hound up in the returns to the writ. If a paper supposed to constitute a part of the bill of exceptions is not incorporated in the body of the bill as signed by the Judge, it must appear by means of identification contained in the bill that it was made a part of it by the Judge who settled the bill of exceptions. The papers in question cannot be considered as forming part of the bill of exceptions.

Held, That under the act of 1869, to regulate the practice in charging juries, the requests complied with or refused do not constitute an integral part of the record to be returned on writ of error independently of any bill of exceptions. The statute does not change the form or office of a bill of exceptions or the mode of reviewing instructions. Its purpose is to keep separate the functions of Judge and jury, to induce a reasonable measure of distinctness in charging, to perpetuate in permanent .form the rulings of the Judge and to render more easy and certain the settlement of bills of exceptions.

Held, That under the circumstances of the ease, it not being clear that any good would be done, the Court will not allow the record to be' withdrawn, for the purpose of amendment, and the judgment is affirmed with costs.


text:
    Perry vs. Spencer.
    [This case involves the question of the application of certain payments, and the following is aa brief a statement as can well be made, and hence the omission of the usual head-note.— Rep.]
    Error to Saginaw Circuit.
   Opinion hi/

Graves, J.

rln this case the Court previously held that voluntary payments to the amount of the penalty of the bond would discharge it. The case now comes up from a second trial on an objection to the finding of the Court. Spencer, and George K. Newcomb were owners in common of a planing mill, and carried it on under the name of Spencer & Newcomb. Spencer sold out his interest to Perry, who gave his bond to Spencer in the sum of $6,000, by the conditions oí which he was to pay or cause to be paid the debts, liabilities and claims against the former firm ot Spencer & Newcomb, and indemnify Spencer against them. Perry & Newcomb continued the business for a short time, when Perry bought out New-comb on the same terms on which he had bought out Spencer. Perry at different times paid a large amount of the debts of Spencer aud Newcomb, and a considerable portion of the amount was paid during the continuance of the firm of Perry <fc Newcomb, some of which was in cash, but the principal part was in notes of Perry & Newcomb. Before the notes matured, the sale from Newcomb to Perry took place, and by the arrangement between them, Perry assumed the payment of these notes and subsequently paid them. The debts of Spencer & Newcomb, paid by Perry in cash up to the time when he purchased Newcomb’s interest, were charged by him to the firm of Perry <& Newcomb. The right to recover was made to turn, in the court below,upon the effect to be given to the payments by Perry which were charged in the books to Perry & Newcomb. If the whole sum of these payments was reckoned against the bond, then it was admitted that the bond was satisfied. But defendant in error contended that, as the sums so paid were charged in the firm books of Perry & Newcomb, they were in effect payments by that firm, and-'that, as against his bond, Perry could only claim the half of such payments and the Circuit Judge so ruled.

Held, That this was error.

Perry’s agreement was to take up or cause to be táken up the debts of the old firm to the amount of $6,000, and it was not material to Spencer from what source he obtained the means so to do. The arrangemen ts between Perry and New-comb were matters for their consideration.

Judgment reversed and a new trial ordered.


author: Mitohell, J.

text:
    James Cummin vs. Chauncey Abbott, Henry Wilcox, Homer C. Wilcox, Andrew Wilcox and Marcus Wilcox.
    In order to maintain a suit to quiet title, the complainant must establish a clear legal or equitable title in himself.
    The grantor of complainant having made an assignment under the laws of Pennsylvania, ibj, the benefit of creditors, and having subsequently assented to a conveyance from his grantos to defendant (the one to him beinglostand not of record) had no title to convey to the complainant, and his assent to the conveyance to defendant must be taken as conveying titlr to defendant, where no record title from defendant’s grantor intervened.

      Shiawasse Circuit,

    May, 1870.
    Bill to quiet title, submitted ou pleadings and proofs.
   By the. Gowrl.

Mitohell, J.

Bill filed March 5, 1869, setting forth that complainant is owner and in actual possession of N. pt. of N. E. frl. 4, Sec. 3, T. 6, N. R. 3 E.—worth $1500 — that title is derived from United States “ by and through those under whom he claims,” and that' his title is perfect at law and in equity (without any more fully setting it forth) — that no other person has any title or interest in the land, but that Chauncey Abbott claims to he the owner, and to have derived title from the United States — that Henry Wilcox claims to he owner under Abbott. Alleges as facts, the contrary,, and states Abbott’s deed was obtained by fraud and false pretences. That, in 1840, Walker conveyed the land to Wm. N. Smith — Walker had title by patent from United States, and six years after date of patent conveyed to Smith. Smith sent deed by Abbott, his brother-in law, to record, ánd Abbott for fraudulent purposes did not have it recorded, and pretended it was lost; that Ahbott applied to Walker and told him the deed was lost and that he was agent of Smith; that Smith was embarassed, &c., and therefore wanted deed in his, Abbott’s name. Walker disclaiming ownership, but believing statements, gave, a quit-claim- deed to Abbott; that the deed to Smith was not lost, but suppressed or concealed, &c., for the purpose of injuring Smith, and to procure a deed to himself, (Abbott.) and deed to him was procured by gross fraud.

Henry Wilcox has no actual interest, and bought, conditionally.

Complainant’s title is perfect-, but Abbott’s claim constitutes a cloud, &e.

The answer shows that defendant, Abbott, claims to be the owner by a patent from the United States to H. C. Walker, June 17th, 1836, and by quit-claim from Walker to him,' April 12th, 1858; that in ‘1838 Walker conveyed to Smith and delivered deed Aug 4, 1840, Smith being insolvent, assigned all property,in eluding this. Applied to Court of Common Pleas of Erie Co., Pennsylvania, for benefit of .bankrupt law of Pennsylvania, and defendant and one Hoyt were assignees and accepted the trust.

October 6th, 1840, Smith was discharged of his debts by that Court;, thatWm. N. Smith made the assignment and delivered deed from Walker to him to defendant to record and keep title straight) and defendant deposited deed with Register of Shiawassee Co. to record, and paid fees, but deed .was lost and he has been unable to find same.

After assigning, Smith gave to defendant the following:

“ This is to certiy that I assign to Chauncey'Abbott my right, title and interest to the Michigan farm deeded to mo, and situated in Shiawassee Co., and containing one hundred and twenty-three and ft half acres.
Hamburg, June 21, 1853. WM. N. SMITH.”

In 1853 Abbott lqarnpd his deed had not been recorded and could not be found.

Applied to Walker to quit-claim, which he refused, and again, in April, ho and Smith applied and Walker refused, but upon its being urged that dofendtnt was owner, that Hoyt, the other assignee, and Seth Abbott were dead, Walker gave defendant a deed, the one first Set forth in answer.

Denies suppressing deed from Walker to Smith — "bad no interest so to do, and was the legal owner of the land. Has exercised acts of ownership since August 4th, 1840, on land as his own, and it has been so regarded and treated by Smith. Has paid all taxes, to amount of several hundred dollars, apd insists that If decreed not to be the owner he is entitled to repiyment with interest on amount paid for taxes, and asks for an account.

General denial of confederacy, General replication.

By the proofs it appears that the land in question was conveyed by patent from the XJnitqd States, in August, 1837, to Henry O. Walker, That in 1838 Walker conveyed the land to Wm, N. Smith, and deed was delivered to defendant (after below assignment under laws of Pennsylvania) for record, and was in some way lost.

That in 1840, under the laws of the State of Pennsylvania, Wm, N, Smith made a general assignment, including these lapds, to defendant and one Hoyt or Curtis.

This assignment was not executed in accordance with the laws of the State of Michigan, but on its face purported to put into the hands of the assignees all the property of the assignor, and though it was not .entitled to record it was an equitable transfer of the title to the property in question,.

As I find the facts, the recorded title was ip Henry O. Walker. He by deed conveyed the same land to William N, Smith, which was not recorded.

William N. Smith assigned under the laws of Pennsylvania, the title to these lands to the defendant and one Hoyt, for the benefit of creditors and in trust for them,

There is no evidence of what was done undor this assignment or whether the assignor’s indebtedness was ever satisfied or not, nor of what was done with the property.

Some timo after the assignment, and after Wm N. Smith had evidently been discharged by the laws of Pennsylvania, Smith gave, to Abbott a release or quit claim which was never recorded and not entitled to record, as follows, to wit: l< This is to certiy that I assign to Chauncoy Abbott and Seth Abbott, all my right title and interest to the Michigan farm, deeded to me, and situated in Shiawassee Co., and containing one hundred and twenty-three and one half acres,

Hamburg, June 21,1853. (Signed) WM. N, SMITH.”

That before this paper was signed, and pending the proceedings in bankruptcy under the laws of Pennsylvania, the deed from Walker to Smith was given to Abbott to be recorded in Shiawassee Co., and that he gave the same to the Register for record and that either by neglect of Register or some cause unknown, the same was not recorded but was lost.

That August 12th, 1858, Abbott with Wm. N. Smith, went to Walker, and after he, Walker, became satisfied that the deed from him to Smith was lost, and that the title of record was still in him, and that it was for Smith’s benefit, other of assignees being dead, he executed and delivered to Abbott a quit-claim deed of the lands, which was duly recorded, and that in the mean time, after the assignment, Abbott had either paid the taxes or bought in tax titles of the land to the amount of several hundred dollars, he being the only one who seems to have been in charge of or caring for the land. j,

There is no evidence of the fraudulent obtaining of this deed except it may possibly be inferred from the fact that Abbott was a party to the loss of the original deed, knew all the facts and so obtained a deed to himself.

January 15th, 1867, Wm. N. Smith • .assuming still to be the own'er of the lands, in consideration of $200, gave to Marvin Miller a quit-claim deed of the lands. By this he conveyed only his then present interest and placed Miller in his position.

January 18th, 1867, three days after the quit-claim deed from Wm. JST. Smith, Marvin Miller, in consideration of $500,gave a warranty deed of the lands to the complainant, so placing him in the same position as Wm. N. Smith.

In view of all the facts proved and stated in this ease, I am of the opinion that the complainant has no such legal'or equitable title as authorizes him to maintain hiá suit as sought in this case.

The bill must be dismissed with costs but without prejudice as to any other legal or equitable remedy.


text:
    McGraw vs. Schwab.
    A writ of certiorari brings up for review questions of law only.
    Error to Wayne Circuit.
   Opinion by

Christiancy, J.

Defendants in error brought suit iu a Justice’s Court against plaintiff in error for certain liquors alleged to have been sold to him at Chicago.- Defendant below pleaded the general issue and gave notice that he would prove that the liquors were sold in Michigan and that the sale was void under the statute. The jury found a verdict for the defendant, and the cause was removed to the Wayne Circuit by writ of certiorari.

The only question complained of in the affidavit for the writ is that “ the judgment is erroneous, for the reason that the testimony given on the trial demanded that a verdict for damages should have been given in favor of the plaintiffs and against the defendants.”— There was no question of law raised; questions of fact were only presented upon the weight of the evidence, which had already been passed upon by the jury,and upon the writ of certiorari only questions of law could be tried.

The Circuit Court had therefore no jurisdiction to review the eause either upon the facts or the law, and, therefore, no power to alter the judgment, and the judgment should have been affirmed or the case dismissed with costs. But in fact the judgment was reversed and a judgment rendered for the plaintiffs. for the amount which, in the opinion of the Court, they ought to have recovered, and this in direct opposition to the finding of the jury.

This was clearly erroneous. The judgment of the Circuit Court must be reversed, that of the Justice must be affirmed, and the plaintiff in error must recover his costs in both courts.


text:
    Wetherbee vs. Green et al.

    Where a person actÍDg in good faith cuts timber from lands, .supposing' he has a right bo to* do, and by his labor and tho expenditure of money manufactures it into articles of much greater value than the timber, he acquires such a property in the timber thus* converted, it cannot be reclaimed by the trees. The remedy of the owner is by an action of trespass.
    A mere license to enter upon land and cut timber does not confer a legal right to do bo ; but it nevertheless protects the licensee so far as he has acted under it before revocation, and the protection does not depend upon tlie form, but upon what has been done, having proceeded by consent.
    Error to' Bay Circuit.
   Opinion by

Cooley, J.

The defendants in error replevied of Wetherbee a quantity of hoops which he made from timber cut upon their land. Wetherbee defended the replevin suit' upon these gi’ounds : First, he claimed to have cut the timber under a license from one Sumner, who was formerly tenant in common of the land with Green, and had been authorized by Green to give such license. Before tho license was given, however, Sumner had sold his interest to Camp and Brooks, the co-plaintiffs with Green, and had conveyed the same by warranty deed; but Wet-heibee claimed and offered to show by parol evidence that the sole purpose of this conveyance was to secure a pre-existing debt from Sumner? to Camp and Brooks, and that consequently it amounted to a mortgage, leaving in Sumner under our statute the usual right of a mortgagor to occupy and control the laud until foreclosure. He also claimed that the authority given to Green by Sumner had never been revoked, and that the license given would be good against Green and constitute an effectual bar against the suit in replevin, which would fail if any one of the plaintiffs was precluded from maintaining it.

But if the Court should he against him on this branch of the case, Wetherbee claimed further that replevin should not be maintained for the hoops, because he had cut the timber in good faith, relying upon a promise which lie had supposed proceeded from the parties having the lawful right to give it, and had by the expenditure of his labor and money converted the trees into chattels inismensely more valuable than they were as they stood in the forest, and thereby he had tpade such chattels his own. And he offered to show that the timber was worth $25, while the hoops were worth some $700. He also claimed to have known nothing of the Sumner assignment. The evidence offered to show these facts was rejected by the Court and plaintiffs obtained judgment.

The principal question involved in the case was : Has a party who has taken the property of another in good faith, and in reliance upon a supposed right, without any intention to commit wrong, has by the expenditure of his money or labor, worked upon it so great a transformation as that which this timber underwent in being transformed from trees to hoops, acquired such a property therein that it oanuotbe followed into his hands and reclaimed by the owner of the trees in its improved condition.

The authorities were examined at length, and the Court concluded that the Judge below had erred in rejecting the testimony offered. That the defendant had a right to show that he had manufactured the hoops in good faith and in the belief that he had the proper authority to do so; and, if he should succeed in making that showing, he was entitled to have the jury iustrueted that the title to the timber was changed by a substantial change of identity, and that the remedy of the plaintiff was an action to recover damages tor the unintentional trespass.

On the other points the Court did not entirely agree with the plaintiff in error. It was not deemed important that the deed from Sumner was intended as a mere security. Sumner would have a right of redemption, but it does not follow that he would have been entitled to possession and to all the other rights of mortgagor in courts of law. Whore the deed is absolute in form the purpose generally is to vest in the grantor a larger power of control and disposition than he would have by statute under an ordinary mortgage. Perhaps the statute, which forbids ejectment by mortgage before .foreclosure, .was not intended to reach a case of this description.— The Court thought that the mere circumstance of the sale of Sumner’s interest did not operate in law as a reservation of the authority previously given to Sumner to sell the timber. Nor was it necessary that the license given to Sumner by Wetherbee should be in any particular form. A mere license to enter' upon land and cut timber docs not confer a legal right to do so; but it nevertheless protects the licensee so far as he has acted under it before revocation, and the protection does not depend upon the form, but upon what has been done, having proceeded by consent. However informal the consent may have been, the land owner cannot be allowed, by after-wards recalling it, to make the licensee a trespasser for what ho has done in reliance upon it.

Judgment reversed and a new trial ordered.


text:
    Stockwell vs. The Township Board of White Lake.
    Interest of Township Cleric In a matter upon which the Township Board aro to take action, disqualifies such Clerk from sitting as a member of the Hoard, while such action to being takes.

      Certiorari to Oakland Circuí
   Opinion by

Graves, J.

The writ brought up the proceedings of the township Board of White Lake for the removal of the plaintiff in error from the office of moderator of school district No. 4 in that township. Some proceedings had been held there looking towards the erection of a new school house, and it was claimed by some and denied by others that a rated resolution had been passed to that effect. "William B. Stockwell and a Mr. Worden were appointed a building committee, and made a contract with Charles Porter to build the house, and with Mr. Barwell to lay the foundation wall. Wm. B. Stockwell afterwards drew two orders in favor of these gentlemen upon the person having the school funds and the plaintiff in error, as moderator, was requested to countersign them. He refused to do so, alleging that the payees had no right to the money. August 8, Wm. P. Stockwell filed a complaint to the township Board against the plaintiff in error, for" persistently refusing to discharge the duties of his office. Porter was Township Clerk, and notified the plaintiff in error that the Board would meet at his office, August 10, to hear and determine the complaint. They met, hut had hut three sitting members, of whom Porter was one. Plaintiff fu prror objected to him, but the Board proceeded aud determined that he should be removed.

Meld, That Mr. Porter was interested in the questions to be determined, and was therefore not a competent person to sit upon the Board. Its proceedings were quashed, aud the plaintiff in error was given his costs.


author: Brown, J,

text:
    Anson Jones vs. Stowell Dimmock.
    Whore suit Is brought on an instrument whereby a party,promised to pay a certain sum, in specific articles, in monthly installments at a price named, the production of such instrument is not prima Jacie evidence of an existing indebtedness, but the plaintiff, in order to entitle him to recover, must show, affirmatively, that the defendant has not fulfilled his contract.
    The plaintiff on resting his case had not made such a shoving as to entitle him to recover, but his evidence offered to rebut the evidence of the defendant, showed him entitled to recover. Held, That whether any given testimony is elicited on the direct examination, cross-examination, re-examination or by way of rebutting, the Court will apply it to the issue a* presented by the pleadings.
    JLn agreement to pay a certain sum in specific articles at a price named, may be discharged hy the payment of that sum of money. Hence, in an action on such a contract, the measure of damages is not the value of the goods at the time of the breach, but the amount of money specified in the contract, with interest after due.’

      Van Buren Circuit,

      April*, 1871.
    Action of assumpsit, upon an instrument oí which the following is a copy :
    Pine Grove, Feb 4, ’69.
    For value received, I promise to pay A. Jones or bearer, six hundred dollars, in eight equal installments, monthly, to be paid in lumber and shingles. “ A” shingles, $3 50 per M.; fencing, $13 per M.; stock lumber, $12 per M. at the mill. “Rev. Stamp. 80 cts. *
    S. DIMMOCK.”
    On the trial, the execution of the above instrument was proved, and the same was offered in evidence, whereupon the plaintiff rested
    The defendant then testified to the receipt by the plain tiff of lum her, shingles and lath, upon the above eontract.amounting, it wa3 admitted hy plaintiff’s attorney, to $147 04. He further testified that he was always ready to pay the plaintiff’s claim in ■ lumber or in shingles; but admitted that there had been times since the year 1869, that he had not the precise article demanded by the plaintiff but testified that he hand at all times either lumber or shingles.— Several witnesses testified that the defendant had on hand, all the time, stock lumber, fencing lumber or shingles.
    The plaintiff replied, offering to show that on several occasions he went or sent to the defendant’s mill and being unable to procuro what he desired, loaded with something else. William R. Surrine, Sheriff, testified that sometime between June and August, 1869, Dim* moot told him there was a chattel mortgage on the lumber in his mill yard. The plaintiff and his son testified that some time after this, plaintiff had a conversation with Dimmock, who admitted that he had pot complied with the contract, and told him, the plaintiff, ho need not qome for any more lumber but he would pay the balance due the plaintiff in money.
    The defendant was then called and denied making any promise to pay the plaintiff money,

      Stephenson & Bar mm, Attorneys for Plaintiff,
    (7, L. Pitch, Attorney for Defendant,
   By the Court,

Brown, J,

'The written instrument offered in evidence in this oase is not prima facie evidence of an existing indebtedness, and the plaintiff in order to entitle him to recover, must show affirmatively that the defendant has not fulfilled his contract.

The plaintiff rested his case without showing any breach of the contract. To show s^ch breach he should show a demand and a noncomplianco by the defendant, or a refusal by the defendant- to comply with the contract.

After the, defendant had rested his case, the plaintiff and his son testified that Dimmock acknowledged that he had not been able to comply with the conditions of his contract and would pay the balance in money, This, Dimmock denies; but I think the'concurrence of Jopes and liig son should bo credited rather than the statement of Dimmock. While this promise is not to be considered as binding as a new contract, I think it may be taken as an admission of a breach of the contract by the dofcndant.or as sufficient itself to Constitute a breach-

That this proof was made while introducing the rebutting testimony makes no difference. ' The order of proof is always in the discretion of thg Court; and whether any given testimony is elicited on the direct examination, on the cross-examination, re-examination or by way pf rebntting, the Court will apply it to any branch of the case rir to any alleged facts or thory introduced therein, It therefore follows that the plaintiff is entitled to recover.

I cannot recognize the rule of damages as claimed by the defendant’s counsel, thát it should be the value of the goods at the time of the breach. It is true that this doctrine is held by many authorities. See Tyler vs. Tyler, 6 Harr. & J. 273; Davenport vs. Wells, 1 Iowa, 598, Edgar vs. Bois, 11 Serg. & R.. 445; McDonald vs. Hodge, 5 Haywood T. R., 85; Price ads. Instrobe, Harper, 111; Wilson vs. George, 10 N H., 445; Norman vs. Islay, 17 Wis, 314; Doak vs. Ex’rs of Snapp, 1 Coldwell (Term.) 180; Williams vs. Jones, 12 Ind., 561; Price vs. Spades, 13 Id., 458; Parks vs. Marshall, 10 Id, 20; Williams vs. Sims, 22 Ala., 512; Morris, Ad’m’r vs. Pruther, 3 Met., (Ky.,) 196.

It was the rale of the civil law, as announced by Pothier, (Path, on Ob., No. 497.) That “ all agreements to pay in specific articles are presumed to be raa le in favor of the dibtor, and he may in all cases pay the amount of tin d bt, in money, in lieu of the articles which, by the terms of the contract, the creditor had agreed to receive, instead ot money.” In the case of Trowbridge vs. Holcomb et al. 4 Ohio St. R., 38, the Court, referring to this proposition of Pothier, say : “With perhaps some qualifications of the generality of tl is language, this is also the rule at common law;” and they held that an agreement to pay $1.590 in wool, at 20 cents per pound, might be discharged by the payment of that sutn of money,-and that sum would be the measure of damages if the wool be not delivered.

To the same effect are the cases of Perry vs. Smith, 22 Verm., 301; Smith vs. Smith, 2 J. R., 235; Pinney vs. Gleason, 5 Wend., 393; Brooks vs. Hubbard, 3 Con. R. 58; Baber vs. Muir, 12 Mass. 121; Mettler vs. Moore, 1 Black., 342.

To my mind, the rcasonirg of the cases last above cited, is more satisfactory than of the cases taking a different view ot the law.

But in view of the testimony in this case it would seem immaterial whether the rule of damages is as contended for by de fendant’s counsel or not. There is no testimony in the case tending to show the value of the lumber and shingles to be dif ferent from that agreed upon by the parties, and in the absence ot any proof upon that point the price specified in the contract would, of course, govern as the rule of damages.

Let judgement be entered for the plaintiff for the balance due him, with interest from January 1st, 1870, to be computed by the Clerk.


author: Campbell, C.. J.

text:
    Josselyn vs. McAllister.
    Error to Hillsdale Circuit.
    Kvidcncft of conduct and declarations as bearing on question of motive in an action for false imprisonment.
    The Judge, while charging the jury, read from a textbook, with a statement that he would afterwards incorporate it in his written charge* lithl, not to be a ground for the reversal of judgment*-
    In cases where arrests are made in civil actions, it is net necessary that the action for false imprisomeut should be postponed until the termination of the other action; that rule holds good in regard to criminal arrest.
    The question of malice discussed — malice defined*
   Opinion by

Campbell, C.. J.

The action below was for false imprisonment and malicious prosecution, the injuries complained of being two successive arrests on what was claimed to be an insufficient showing in law. The case went to the jury on the counts for false imprisonment, and judgment was rendered for the plaintiff below, and was removed to the Supreme Court. The plaintiff below was allowed to show the temper and demeanor of Josselyu when arrested in the present action, and gave proof of angry conduct and expressions on that occasion and subsequently. This evidence was introduced to show motive in Josselyn at the time he made the affidavits for McAllister’s arrest some months before, held, That such evidence was uot proper for such purpose. His declarations and admissions concerning the former tranaaction would be evidence against him and seem to have been received without objection. But the mere fact that he was vindictive and sullen when arrested has no bearing on his state of mind when he was causing some one else to he arrested.

There was evidence that some negotiations had been had through the medium of Mr. Cheever, one of .the attorneys oí of Josselyn, in regard to a settlement of the matters out of which the arrests complained of originated. The Court below' refused to admit proof of what Cheever told Josselyn concerning that arrangement. Held, That if such evidence showed facts of such a nature as to indicate that the party believing them may have acted upon them without improper motives and in good faith, it might bear somewhat upon the question of malice, and should have gone to throw light on the spirit of the prosecutions. There was, however, no error in rejecting Cheever’s account of the facts themselves, as the question of malice does not depend upon those fads.

Held, That testimony as to Josselyn’s information from his attorney as to the cause of McAllister’s discharge was receivable as bearing upon the spirit of the other arrest. The Court could not see any legitimate bearing which the instructions received by Josselyn from the company that employed him could liave on any of the issues in this case. Nor could it justify this arrest that Josselyn had been in the habit of procuring the arrest of others under similar circumstances.

A question was raised below whether the charge was not- entirely vitiated by the Judge’s reading from a text book with a statement that he would afterwards insert it in his written charge. No specific objection was taken to this course, and the Court held it not ground on which a judgment would be reversed.

The Court having charged the jury that an action for malicious prosocution would not lie until that suit was terminated, directed the jury not to consider any of the counts except for false imprisonment, but refused to charge that no action would lie for false imprisonment before the termination of the suit on which the arrest was had. Held, That in cases where arrests are made in civil actions, it is not necessary that the action for false imprisonment should be postponed until the termination of the other action ; that rule holds good in regard to criminal arrest.

As the requests to charge were made in writing and not read to the jury unless granted, it is manifest that they cannot in any case have been misled by any refusal into mistaking the .ground of the refusal. If the plaintiff in error has hot been deprived by such refusal of any instruction he was entitled to, he has not been damnified. If his requests were wrong or given as clearly in the language of the Court as in his own, he has not been’ damnified. The Court charged that there could be no recovery if the defendant below when he made his affidavits had reasonable or probable cause to believe their statements were. made in good faith, and that there could be no recovery unless -he was actuated by feelings of malice and explained probable cause as a reasonable ground of suspicion, supported by circumstances sufficiently strong to warrant a cautious man in the belief that the party arrested is guilty of the offences with which ho is charged. And malice was defined as an act done wrongfully and without reasonable excuse, but the court charged that if defendant before proceeding, laid all the facts before his counsel and acted in good faith on the opinion of counsel, he was not liable. But if he misrepresented the case or did not act in good faith, or did not believe there was good cause to make the affidavit, he was liable; and it was for the jury to determine whether he acted in good faith and honestly believed the statements in his affidavits to be true.

Held, That plaintiff in error had no causo to complain of any of these charges. The Court was also right in holding that not mere nominal damages could be recovered, where there’was an allegation and proof of spefcial damage. The jury may give general damages in such a case, to be determined by the circumstances.

Judgment reversed with costs, and a new trial ordered.


author: Coodky. J.

text:
    Parsons vs. Dickinson.
    Objections taken to testimony before an officer taking' a deposition, must be reneewed in 'the court in which such, deposition is used, if the party would avail himself of the benefit of his objections.
    An indorser of a note though not legally notified of the dishonor of the same, will be deemed to have waived the want of notice, where it appears that he subsequently stated that he 'expected and intended to pay tho note.
    Error to Wayne Circuit.
   Opinion by

Coodky. J.

This cause was commenced in a Justice’s Court. The cause of- action was an endorsement by Dickinson of a note made by one Kibbee, payable at the First National Bank of Detroit. The defence was that defendant was never legally notified of the dishonor of the note. The Justice gave judgment for the plaiintiff, which was reversed by the Circuit Court, and the latter judgment comes up for’review.

Two alleged errors were considered: First, that the Justice erred in receiving evidence of the custom of the bank as to making inquiries for the residence of the indorsers when they were unknown to the officers to whom the paper was committed for protest. Second, that the Justice erred in rendering judgment in favor of the plaintiff when there was no evidence in the case tending to show that proper steps had been taken to fix the liability of the defendant as endorser.

When the note fell due the defendant was a resident of Ma-comb county, and the only notice received by- him was one deposited in the post-office directed to him at Detroit. On the trial the officer who protested the note was allowed to testify through his deposition, as to inquiries which he made concerning the defendant’s residence, and also as to the diligence"generally émployed by the bank in these matters. It does not appear, however, that objection was made to this testimony. Defendant seems to have supposed that it was sufficient for him to make his objections before the officer taking the deposition; but this was an error. Objections taken before him are only for the purpose of reserving them for decision by the tribunal which is competent to pass upon them. No other rule would be fair either to the party offering the evidence or to the1 Justice.

The Court did not enter into the discussion of the question of diligence, as they deemed another point decisive of the case. Defendant was not bound to insist upon his defence on the ground of the want of notice, but might waive it if he so chose-It was proved on the trial that defendant, after the dishonor of the note, had an interview with the officers of the bank, and though he remarked that he had not received notice of its dishonor, he said he expected to pay it and wished the plaintiff to get it from Kibbee. The defendant was sworn in his own behalf and did not deny this statement. With full knowledge of the facts the defendant recognized his liability.

The judgment of the Circuit Court is reversed and that of the Justice affirmed, the plaintiff to recover costs in both courts.


author: Brown, J.

text:
    Joseph Sager. Appellant, vs. Michael Harrison, Appellee.
    A Justice has no jurisdiction to enter judgment after four days from the day the cause is submit ted to him.
    A Tustice’s return showed that the causo was tried before him October 12,1870, and that he took four days in which to render iiis judgment — that he rendered judgment October 17, 1D70. Held, That although the return showed that the cause was decided five days after • the trial, nothing appearing in the return to the contrary, i he legal presumption is that the cause was not submitted to the Justice for final decision, until after the 12th of October —that the docket entries required by the statute, having been made, and the law not requiring the docket to show when the cause is submitted for final decision, the ordinary presumption in favor of the correctness of official action must support the proceedings.

      Kalamazoo Circuity

    May, 1871.
    Motion to dismiss appeal.
    The return of the Justice shows that issue was joined between the parties,and adds, “ The said cause was then adjourned until the 12th day of October, 1870, at one o’clock in the afternoon, at which time the parties again appeared'’before me, and the cause was tried before me without a jury. After hearing the proofs and allegations in the cause I took four days to delib’ erate. upon the matter. After due deliberation 1 decided no cause of action, and that on the 17th day of October, 1870,1 rendered judgment against the plaintiff in the sum of ten dollars and costs of suit.’’

      O. T. Tuihill. for the motion.

      Edwards <(■; Sherwood, Contra.

   By the Court.,

Brown, J.

The grounds relied upon in support of this motion, are

. 1. The judgment was rendered by the Justice on the 17th of October, while the trial was held on the 12th, or more than five days before the entry of judgment.

2. That the declaration does not state a cause of action.

I do not think the Court upon this motion, can properly be called upon to pass upon the declaration. There is that in the case which purports to be a declaration, and upon which the parties went to trial before the magistrate.

In relation to the first point, the statute requires the Justice to render judgment and enter the same in his docket within four days after the cause shall have been submitted to him for his final decision. C. L., § 3784.

I have no doubt that a judgment rendered by a Justice after the expiration of four days from the day of submitting the cause to him for his final decision, would be a nullity. 19 Wend., 371; 6 Hill, 38; 3 Denio, 72; 5 Hill, 60; 7 Hill, 503.

Inasmuch as a Justice’s Court is one of limited jurisdiction with such powers only as are conferred by statute, it is necessary that everything pertaining to the exercise of jurisdiction accord with the requirements of the statute, and whatever the statute requires must affirmatively appear, and no mere presumption will be allowed to supply the want of such showing.

The statute requires that certain entries be made in the Justice’s docket, and if those entries do not appear, the presumption is that the occasion for such entry never occurred — that the act or acts of which the law requires a record, never transpired: But when the docket entries comply with the statute, the ordinary presumption in favor of the correctness of official action must support the proceedings. Peck vs. Covell, 16 Mich., 9; Push vs. Whitney, 4 Mich., 495. The statute, C. L., § 3890, specifies the things which shall appear on the Justice’s docket.— Amongst other things, he is to enter the time when the trial was had, the judgment rendered by him, and the time of rendering the same. In making his return to an appeal, he is required to show, amongst other things, the judgment rendered, and the time of rendering the same, but it does not require him to state when the cause was submitted to him. It is often the ease that a trial of a cause may be commenced on one day, and not be submitted for final decision until a day or two later. To Bustain this motion would be to find that the cause was submitted to the Justice for his final decision on the 12th of October. I do not think such a conclusion is necessarily to be drawfi from the language of the return. This being go, the ordinary presumption in favor of the correctness of official- action, must lead us to the conclusion that the cause Was not Submitted to the Justice for his final decision until the 18th of October.

The motion must be denied.


text:
    Macumber vs. Beam.
    In an application for a dissolution of an attachment, under the act of 1851, the application it* sufficient so fur os allowing title to the property in the applicant, if from its terms it would reasonably be inferred that the property still continued to belong to the applicant. In an application to dissolve an attachment, under the act of 1851, the burden of proof is upon the plaintiff to show the existence of facts justifying the iesuingof the writ.

      Certiorari to Commissioner of Kalamazoo Circuit.
   Opinion by

Christiancy, J.

This was an application made by Beam, the defendant in error, under the act of 1851, to a Circuit Court Commissioner of Kalamazoo County, for the dissolution of an attachment issued from the Circuit Court of that county against Beam at the suit of Macumber. The first objection was that the application presented to the Commissioner does not show by sufficient and certain allegations the right of the petitioner to the property attached. The allegation is certainly necessary that the property of the applicant has beSn attached, but it has not been held that the application must contain an express averment that the property still belongs to the applicant. The farthest the Court has gone has been to hold that whenever it affirmatively appears that the property at the time of the application did not belong to the 'applicant, he was not entitled to have the attachment dissolved in this proceeding.

The case of Osborne vs. Robbin, 10 Mich, 277, contains a dictum from which the other allegation might be deemed necessary, but the facts did not call for any such decision. And the Court thought the application sufficient, if from its terms it would reason-.a’bly be inferred that the property still continued to belong to the applieant. In this case the attachment is clearly.stated. The prayer is that the attachment may be dissolved and the property restored to the applicant. This implies a continued ownership.

The other question raised by the case was whether, upon the hearing before the Commissioner, the plaintiff in the attachment is to begin by showing good cause for its issuing, or whether the defendant is to begin by showing the non-existence of such cause, and upon whom rests the burden of proof. Held, That the plaintiff is to begin, and that the burden of proof is upon him to show'the existence of such facts as justified the issuing of the writ,

There was no error in the proceedings, and the judgment was affirmed with costs.


author: Brown, J-

text:
    George Dodge, Volney P. Kimball, Benjamin M. Austin and William G. Austin, ads. James H. Bostwick, Administrator of the Estate of Jeremiah Syke, Deceased.
    On a first application for a continuance, on account of absence of wltneas, the following facts should be shown: Materiality of the the testimony, necessity therefor, absence of witness, endeavors mado to procure his testimony or attendance at Court, the time when he is expected to return or when the party expects to procure his deposition, and that the application is not mado for delay, but that justice may bo done,

      Kalamazoo Circuit,

      May, 1871.
    Motion for continuance.
    The affidavit of one of the defendants shows that one George Baker is a material witness — that he left Kalamazoo in the Summer of 1870, and went to Fort Madison, in the State of Iowa to reside, and has not since returned. The affidavit then says: “ And this deponent further says that itjhas not been possible for said defendants to procure the attendance or the deposition of said witness for the trial of said cause, at the present term of this Court, since the same was noticed for trial. And this deponent further says that it is very important that said witness should be present on the trial of said cause, and that his testimony will be of such a nature that the same cannot well be taken by commission, and that said defendants will use every endeavor to procure the personal attendance of said witness on the trial of said cause;” that defendants expect to procure the attendance of said witness at the next term of Court, and that the application is not made for delay, &c.

      Dwight May, for the motion.

      O. T. Tuthill, contra.

   By the Court,

Brown, J-

On a first application for a continuance, made on account of the absence of a witness, such appli cation should be supported by the affidavit of the party desiring such continuance or by his attorney, and when made by the attorney,'should show the reasons why the same is not made by the party. Such affidavit must show,

1. ■ The materiality of the testimony of the absent witness, and that the party cannot, as he is advised, safely proceed to the trial of the cause, without the testimony of such witness. The materiality of the testimony may be shown by swearing to the advice of counsel, (when the affidavit is made by the party,) to whom, it must appear, the affiant has fully and fairly stated the case and what he expects to prove by the witness.

2. The absence of the witness.

3. The endeavors which have been made to find him, or if his residence or stopping place is known, the efforts which have been made to secure his attendance at Court or to take his deposition ; the time when he is expected to return or be present, or the time when the party expects to be able to procure his deposition, concluding with the statement, substantially,that the application isnot made for delay merely, but that justice may be done.

The affidavit in support of this application is, I think, a substantial compliance with all the requirements indicated, except that it fails to show, unless by inference, that any endeavors have been made to procure the testimony of the witness. It is true that the affiant says “ it has not been possible for the defendants to procure the attendance or the deposition of the witness.” If this statement be true, a continuanes Bhould be granted, but as the affiant does not state the reason for his conclusion, the Court is unable to determine whether that conclusion is warranted. Whenever the law imposes a duty upon a person, such person will not be excused from its performance by simply saying, “It is impossible for me to do it,” but he must go further and show that he has made an honest effort and failed.

The affidavit is insufficient, but as the practice in this respect has heretofore been somewhat irregular, the defendants will be permitted to renew their application at any time during this day, without coBfe)


text:
    Miller vs. Sweitzer.
    A and B assaulted and beat C. A was arrested and tried — B not airested. On the trial the prosecution offered evidence as to a certain wound inflicted upon C by B. Objection was made that as A was prosecuted alone and as it did not appear that there was any concert of action between Aand B in makingthe assault, the evidence was inadmissible.— Held, That the proposed evidence should go to the jury.
    Error to Wayne Circuit.
   Opinion by

Graves, J.

This was an action on the case by Sweitzer against Miller to recover damages alleged to have been occasioned by an assault and battery. Loss of business- and the expenditure of money for medical purposes were charged. Plaintiff offered evidence tending to show that he called at the grocery of Miller on business, when an altercation occurred between himself and Miller’s wife respecting payment for some beer which she claimed he had purchased on a previous occasion. Sweitzer on the stand testified that on his refusal to pay Mrs. Miller she took his bat and threatened to take his watch. That he sought to regain his hat, whereupon Mrs. Miller thrpw him down, held him, and called to her husband to come and kill him if he did not give up his. watch or pay for the beer. The defendant then seized him about the neck and stvuck him several blows, while Mrs. Miller struck him several times,in the head with a hatchet. The last evidence was objected to as having nothing to do with Sweitzer. Dr. Granger was asked if he could tell how the wounds on the head were caused, bat an objection was taken on the ground that there was no evidence going to show that Sweitzer struck the blows on the head. The objection was overruled, and the witness stated that the wound must have been made with a blunt instrument something harder than the fist. The questions in the ease arose on the refusals of the Court to sustain the objections to the admission of testimony.

Plaintiff in error took the ground that as he whs prosecuted alone, and it did not appear that there was any concert of action between himself and his wife, or that his acts naturally and ordinarily produced the blows given by his wife, the evidence respecting her assaults were inadmissible. The Court, however, held that the husband and wife were clearly, according to the testimony, engaged in the assault together, and that the whole evidence should go the jury, who were the judges of the facts.

The judgment of the Circuit Court is affirmed with costs.


text:
    The Security Insurance Company of New York vs. Fay.
    A policy of insurance had endorsed upon it as one of the clauses of forfeiture, the words, “If without written cousent hereon, there is any prior or subsequent insurance, this policy shall be void.” Subsequently, and withput giving notice to the company, an insurance was effected in another company. A few weeks after the second insurance an agent of the company first insuring, residing at another place, endorsed on the policy, the words :t-“Other insurance to the amount of $4,000 is hereby permitted, December 7,1887 ” In a suit ontho policy, Held, That upon sound rules of‘construction the consent should have been signed by the general agent at Chicago, witho it whose signature the policy was not tobe valid. The unsigned consent cannot bo sustained in the absence of the general agent’s signature, without distinct proof that it was made by some ope who was in fact, or by their conduct might he fairly supposed to be authorized to hind the company ip that-way, or was recognized and acted upon afterwards so as to bind them by some sort of estoppel. The policy became void if there was subsequent insurance without consent. And the actual consent given was not a consent to a past Insurance, but rather to one in the future.
    Error to St, Joseph Circuit.
   Opinion by

Campbell, C. J.

Judgment was rendered against, plaintiff in error on a policy of insurance. The defence rested on a forfeiture of the policy by failure to have certain^ additional insurance consented to, by endorsement on the policy and on. a failure to furnish the proofs required by the terms of the policy.

' Inasmuch as measures were taken immediately after the fire, by the holder of the' policy and the agent to ascertain the facts and extent of the loss, and no formal proof of loss seems to have been required by the agent, the matter was properly left to the jury to find whether the former proofs had not been waived.

The insurance was for $8,000. The policy contained, among other clauses of forfeiture, one which declared that, “if without written consent hereon, there is any prior or subsequent insurance, this policy shall be void.” The policy was dated. September 17, 1866, and renewed September 17, 1867. Up to the latter date there had been no additional insurance. The policy did not say who should sign the contract.

October 22, 18,67, Fay obtained a policy for $2,000 from the agent of a Detroit company. No consent was obtained in advance, nor was,any notice given of it until December 7, 1867, when A. G. Martin, an agent of the company, residing in another place, wrote upon the policy the words, “ Otherinsurance to the amount of $4,000 is herebypermitted, December 7,1867.” The memorandum was not signed by any one; but Martin swore that he omitted the signature by mistake. The evidence as to whether Betts, the regular agent, was informed of this before the fire or not is conflicting.

Held, That upon sound rules of construction the consent should have been signed by the general agent at Chicago, without whose signature the policy was not t.o be valid. The unsigned consent cannot be sustained in the absence of the general agent’s signature, without distinct proof that it was made by some one who was in fact, or by their conduct might be fairly supposed to be authorized to bind the company in that way, or was recognized and acted upon afterwards so as to bind them by some sort of estoppel.

The condition in the policy contemplates, too, that the consent to future insurance should be given in advance. The policy became void if there was subsequent insurance without consent. And the actual consent given was not a consent to a past insurance, but rather to one in the future It was further held that there was no evidence of the waiving of the written consent by the agent, Betts. Also that the company had the right to the instruction asked, that if there was any attempt to defraud the company by not complying with the conditions of the policy, the plaintiff could not recover.

Judgment below reversed, and a new trial ordered.