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    David Cooper v. John Bigly, Thomas B. Bigly, Francis E. Eldred, Frank Vincent, DeWitt C. Holbrook, and Levi Bishop.

      Marshalling securities — sale should be made in inverse order of alienation. — Upon tho foreclosure of a mortgage upon premises which have "been conveyed or incumbered in parcels subsequently, to the mortgage, the promises should be sold in the inverse order of such conveyances or incumbrances, unless the mortgagee will be prejudiced by having tho property so sold. And this rule . does not dopond upon the existence or non-existence of covenants of warranty.

      Conveyances subsequent to mortgage —record of not notice to mortgagee. — A mortgagee cannot be affected by a subsequent conveyance or incumbrance of tbo mortgaged premises, of which he has no notice, and the record of such conveyance or incumbrance is not constructive notice to him.

      jRelease, by mortgagee, of part of his securities. — Where, therefore, A had a mortgage upon lots one, two and three, and B had a subsequent mortgage upon lot three, and they having no'knowledge of conveyances which had been made of lots one and two subsequently to their mortgages, conjointly released a part of lot three, it was held that B’s equitable right to have lots one and two first sold was not thereby affected.

      Purchase by mortgagee of the equity of redemption —when will not merge the mortgage. — The purchase, by a mortgagee, of the equity of redemption will not merge the mortgage, where there are intermediate rights, or the interest of the mortgagee requires that the titles should be kept separate.

      Change of title pending suit — supplemental bill — The purchaser of a parcel of . land at a foreclosure sale may file a bill to compel the foreclosure of a prior mortgage upon that and other property, and to have tho other property first sold; and where, pending a suit in such case, tho prior mortgagee purchases the interest of the complainant, he may file an original bill, in tho nature of a supplemental bill setting up the change of title, and is entitled to the same relief that could have been had under the original hill.

      Mis-description of property in a mortgage —the effect as to record notice. —Whero property was described in a mortgage as “lot number one, in section twenty-eight, on tho Forsyth or Porter Farm, in tho city of Detroit — being on the south-west corner of Fort and Sixth streets,” which description was correct, except as to- the section, which should have been eighteen, and it did not appear that there was a section twenty-eight on the farm named, it was' held that the record of such mortgage was notice to subsequent purchasers of the property.
    Whether, whore a description is so. framed that it may bo intended for ono lot as well as another, the record of tho instrument is not sufficient to put a purchaser of either upon inquiry. Qicere.

      Covenant in a deed — exception in, when not void for uncertainty. — Where tho covenant against incumbrances in a deed contained an exception of a “ certain mortgage,” without giving the date or amount of the mortgage, or the uarno of tho mortgagee, but ‘the proof disclosed only one mortgage upon the property, it was held that such exception was not void for uncertainly, but would be understood as referring to the only mortgage proven in the case.

      Held, also, that such exception could not affect tho grantee’s equitable rights in reference to tho order of sale of tho property covered by said mortgage.

      Marshalling securities — consideration of conveyances subsequent to mortgage, who may not question. — One who purchases a parcel of land, subject to a mortgage upon that and other property, and with full record notice of a conveyance of the other property, gets no greater rights by virtue of such purchase than his grantor had ; and in a suit for tho foreclosure of the prior mortgage, and to marshal tho securities, he is not in a position to attack such deed for want •of consideration.

      Heard July 10.

      Decided October 17.
    Appeal in Chancery from Wayne Circuit.
    The facts arc sufficiently stated in the opinion.

      F. H. Canfield and A. Pond, for complainant :
    1. The several parcels of land should be sold in tbe inverse order of their subsequent alienation.
    The general rule of marshalling assets and securities by Courts of Equity, in the inverse order of alienation, is too well settled in this country to require argument in this cause to sustain it.. We refer, however, to the following, which are but a few of tho many authorities which sustain our general proposition. — 1 Story's Eq. Jurisprudence, §633; Mason v. Payne, Waller's Ch. R., 459; Howard Ins. Co. v. Halsey, 4 Sandf., 565; 8 N. Y., 271; Chapman v. West, 17 N. Y., 125; La Forge Ins. Co. v. Bell, 22 Barb., 271; Commercial Bank v. Reserve Bank, 11 Ohio, 444; Guoin v. Knapp, 6 Paige,
      35; Grovesneur v. Lynch, 2 Paige, 300; Sluyvesant v. Hale, 2 Barb. Ch. R., 151; Ayers v. Husted, 15 Conn., 504; Hastings Case, 10 Watts, 303; Shannon v. Marsellis, 1 N. J. Ch., 413; Wickoff v. Davis, 3 Green. Ch., 224.
    By his purchase from the bank, Cooper acquired all the legal and equitable rights of his grantor in the premises. Whatever equities were capable of being enforced by the bank against the present defendants, can now be enforced by Cooper. — Griffith v. Griffith, 9 Paige, 315; 1 John's Ch. R., 213; Noyes v. Burton, 29 Barb., 631.
    2. There has been no merger of complainant’s mortgage by reason of the warranty deed which he received from John Bigly, of . the Fort street and Woodward avenue lots.
    The doctrine is well established that’ a deed of the equity of redemption will not operate as a merger of a prior mortgage, where there are intervening incumbrances. — Snyder v. Snyder, 6 Mich., 470; 1 Washburn on Real Properly, 564.
    3. The release-of a portion of the Woodward avenue lot, by Cooper, does not affect his lien as against Yincent.
    In the marshalling of the securities no account will be taken of the fact that a portion of the premises have been released, unless it be shown that the prior mortgagee had notice of the subsequent conveyance or lien. — Wheelwright v. Depyester, 4 Edwards' Ch., 232; Howard v. Halsey, 8 N. Y., 271—4 Sand., 565; Talmage v. Wilgers 4 Edwards' Ch. R., 239, note; Stuyvesant v. Hale, 2 Barb. Ch. R., 151; James v. Brown, 11 Mich., 25. •
    ’ 4. The record of Cooper’s mortgage was constructive notice of his lien on the Fort street lot.
    Although a portion of the description of this lot contained in the mortgage is erroneous, still it is sufficient to identify the premises intended to be conveyed; and so much as is erroneous will be viewed as mere surplusage, and rejected on this ground. The mortgage correctly describes this lot as lot one, on the south-west corner of Fort and Sixth streets, in the city of Detroit, and this, we submit, was sufficient to put tbe parties upon inquiry, and the record, therefore, was constructive notice to them. — Worthington v. Hyler; 4 Mass., 196; Jackson v. Clark, 1 Johns., 218; Jackson v. Loomis, 18 Johns., 81; 19 Johns., 449; 7 Maine, 109; 6 Cow., 706; 29 N. H., 499; 10 Cush., 241; 6 Ind., 62; 6 Hill, 453; 12 Wheat., 520; 15 N. Y., 534; 7 Mich., 69.
    5. That the record of Thomas B. Bigly’s deed was constructive notice of his rights under it, to Vincent, Eldred, Holbrook and Bishop. — Chapman v. West, 17 N. Y., 125; 2 C. L., 2734, 2748; Parks v. Jackson, 11 Wend., 442; Chase v. Woodbury, 6 Cush., 143; 2 Lead. Cases in Equity, 245, 248; Ins. Co. v. Bell, 22 Barb., 65.
    6. The exception contained in the clause of warranty in Thomas B. Bigly’s deed of the river property will make no change in the order of marshalling.
    The excepting clause is void- for uncertainty. The ambiguity is patent on its face, and wo insist upon the familiar rule that parol testimony is inadmissible to explain a patent ambiguity. — 2 Parsons on Contracts, 75; Baylis et al. v. the Attorney General, 2 Atk. Ch., 239; Hunt v. Hort, 3 Brown's C. C., 311; Miller v. Travers, 8 Bing., 244; 5 Bing. N. C., 425; 3 Atk., 257.
    A mere quit claim, or a deed without any covenant whatever, would be sufficient to raise the equities for which we contend in the marshalling of these securities. If, then, such a deed would enable Thomas B. Bigly to insist that the Fort street lot should be sold first, how can a mere exception in the covenant affect or change the order of sale? — Ellison v. Ellison, 1 Lead. Cases in Equity, p. 297, note and cases cited.

    7. The pleadings and proofs do not present a case in which the validity. of Thomas B. Bigly’s deed can be-litigated.
    1st. A cross-bill should have been filed if the parties, desired to raise that question.
    Bigly was bound only to meet the case made by the bill. He is not supposed to know, neither is he under-obligation to reply to the affirmative allegations of fraud made by his co - defendants, until he is properly brought into Court for that purpose. — Story Eq. Plead,., §392,. Lube, 39-103; 3 Daniel Plead,, and Prac., 1742; 10 N. J. Ch., 107; 5 How., 143; 9 Cowen, 147; 4 J. J. Marsh, 37; 4 Ala., 461; 1 Hill on Mort., 303; 18 Vt., 231.
    2d. There is no equity in the case made by Eldred and Vincent, which entitles them to question the validity of this deed.
    The deed, even if fraudulent and void as to creditors, was binding between the parties, and all claiming under or through them. Eldred claiming, as purchaser of the Fort street lot from John-Bigly, obtained by his purchase no right or equity - which his grantor did not possess, and cannot claim to set up a fraud or want of' consideration which his grantor would be estopped from asserting. — Randall v. Phillips et al., 3 Mason, 378; Killinger v. Reidenhaner, 6 S. & R., 531; Hubbs v. Brockwell, 3 Sneed, 574; Chapin v. Pease, 10 Conn., 69; Fox v. Willis, 1 Mich., 321; 1 Amer. Lead. Cases, 45, note and cases there cited; McKibben v. Barton, 1 Mich., 213; Greenwood v. Brodhead, 8 Barb., 593; Crippen v. Hudson, 3 Kernan, 161; 2 Story Jurisprudence, §1216, b.

    8. The facts set forth in the original bill present a case for the relief therein prayed. The Insurance Bank, as the owner of the Woodward avenue lot, had a right either to file a bill to redeem or compel Cooper to foreclose his mortgage, which had become due, and upon, which the interest was rapidly accumulating. — 5 Wis., 151; 4 Ala., 452; 4 Ala., 477.

      And the bank, by its conveyance of the Woodward avenue lot to Cooper, parted with ’’all its interests in the subject matter of this suit,' and could no longer prosecute the same. Cooper, as the assignee or vendee of the bank, acquired the right to 'revive the cause in his own name, and to 'prosecute it to a decree for the foreclosure of his mortgage. — Story's Eq. Plead,., §329, §330, §349 ; 3 Daniel Ch. Plead, and Prac., 1663, 1667, 1672; Cooper Eq. Plead., 76; 2 Barb. Ch. Prac., 63, 65; Webster v. Hitchcock, 11 Mich., 56; Sedgwick v. Cleaveland, 7 Paige, 287; Simons & Stewart, Ch. R., 491.
    The fact that Cooper was a nominal defendant to the orginal bill is no objection- to his right to revive the cause in his own name, as complainant, by means of the supplemental bill.—17 Eng. Law and Eq., 265; 19 Eng. Law and Eq., 244.

      Jerome •& Swift, for defendant Vincent:
    1. The rule of sale in the inverse order of alienation, upon a decree of foreclosure, depends upon whether or not the deed is one of warranty. — Donohue v. Woodbury, 6 Cush., 143; Bradley v. George, 2 Allen, 392; George v. Kent, 7 Allen, 16; Welch v. Beers, 8 Allen, 151; Kilbourne v. Robbins, 8 Allen, 466; Bigelow v. Bush, 6 Paige, 343; 1 Washburne’s Real Property, 818.
    In two cases decided in this country, which are oftener •cited than any others, as establishing the rule above mentioned, the deed to the first purchaser contained a covenant again incumbrances. — Gill v. Lyon, 1 Johns. Ch., 447; Cloweds v. Dickinson, 5 Johns. Ch., 235. See, also, Guion v. Knapp, 6 Paige, 35; Skeel v. Spraker, 8 Paige, 182.
    In many other cases in which this rule is recognized or established, it will be found that the fact of the first sale being with warranty Is mentioned as- important, even if it is not relied on as the ground of the decision. We find it decided .that where a person merely buys the equity of redemption, the land remains the primary fund for the payment of the mortgage; and that the mortgagor, if compelled to pay it, will be entitled to be subrogated to the rights of the mortgagee.
    As where a man buys land subject to the mortgage,, though he does not assume the payment of it. — Jumel v. Jumel, 7 Paige, 591; Stebbins v. Hall, 29 Barb., 524.
    So where a person buys the equity of redemption on a sale on execution. — Tice v. Anin, 2 Johns. Ch., 125; Heyer v. Pruyn, 7 Paige, 465; Russell v. Allen, 10 Paige, 249; Morton v. White, 2 Carter, 663; Weaver v. Toogood, 1 Barb., 238.
    So upon sale upon a foreclosure of a second mortgage. — Cox v. Wheeler, 7 Paige, 248; McKinstry, v. Curtis, 10 Paige, 503; Matthews v. Aiken, 1 Comst., 595; Roll v. Smalley, 2 Halst. Ch., 461; Bailey v. Gould, Walker's Ch., 478.
    2. The conveyance to Thomas Bigly was both voluntary and fraudulent.
    A conveyance with a fraudulent intent is void even as to subsequent creditors. — 1 Am. Lead. Cases, 71.
    The Court must, at least, find that there was some secret reservation for the benefit of John Bigly. This is often referred to as a badge of fraud. So also was the possession by John Bigly. — Bank of U. S. v. Houseman, 6 Paige, 526; Smith v. McDonald, 25 Geo., 377; Callan v. Statham, 23 Howard, 477.
    In Agricultural Bank v. Pallen, 8 S. & M., 357, in speaking of the rule of sale in the inverse order of alienation, the Court say: “The interposition of equity,, of course, pre-supposes that the alienation was made in-good faith and for a valuable consideration.” Can that be said of the conveyance to Thomas Bigly?
    A subsequent sale to a bona fide purchaser makes, a prior voluntary conveyance prima facie fraudulent. — -
      Cathcart v. Robinson, 5 Peters, 265, 281; Enders v. Williams, 1 Metc., (Ky.,) 346; Wells v. Treadwell, 28 Miss., 717; Brown v. Burke, 22 Geo., 574.
    The principle to'be deduced from these cases is, that a mere volunteer stands in the place of his grantee, and will be postponed in equity to purchasers and mortgagees. — Duvall v. Wilson, 9 Barb., 487.
    But we shall be told that the defendants on the bill and answers filed in this cause are not entitled to go into the inquiry, whether the deed to Thomas Bigly was fraudulent.,
    On this point we cite the following authorities: Union Insurance Co. v. Van Rensselaer, 4 Paige, 85; Tower v. White, 10 Paige, 395; Hopkins Ch. Rep., 277; 1 Barb. Ch. Rep., 353; Caruthers v. Hall, 10 Mich., 40; Benedict v. Gaylord, 11 Conn., 332; Tyler v. Hammond, 17 Mass., 198, 211; Davis v. Rainsford, 11 Pick., 211; Lincoln v. Wilder, 29 Paine, 182; Hunt v. Rector, 13 Missouri, 497.

      S. D. Miller, for defendant Eldred:
    1. The supplemental bill was demurrable. The original bill was, in fact and effect, a bill to redeem, and. nothing more. Whatever else was prayed was merely incidental and ancillary.
    This position only becomes important, and is only urged because, although it might, perhaps, be impracticable under a bill to foreclose to indicate the relative rights of the several defendants with requisite certainty, it would be entirely proper under a bill to redeem to make such showing as would fully adjust all rights. Bills to redeem have wider scope, and to be effectual must enable defendants to urge their rights as between and against each other.
    However, if the comparative equities of the several -defendants can be determined in the present cause, upon the proofs as taken, this objection would hot be relied upon. That they may be, is, perhaps, established by the decision in Carruthers v. Hall, 10 Mich., 40.
    2. What is Cooper’s present position in respect to the amount due him, and • the property securing this amount ?
    By his mortgage there was due to him three thous- and six hundred and fifty-five dollars, and interest at ten per cent. That mortgage did not operate to convey lot one, block eighteen, as against subsequent purchasers and incumbrancers. The mortgage described the lot as in block twenty-eight. It is true that it subsequently .says, “being on the south-west corner of Fort and Sixth streets.” But of two inconsistent clauses in description, that which refers to the legal survey and plat shall prevail, and the parol testimony of John Bigly, introduced on the hearing, can have no effect upon the rights of parties previously acquired. The description of the lot by number and block was a full description, and the words occurring afterwards were general and merely descriptive. — 2 Greenleaf's Cruise, 334, and note; Jackson v. Moore, 6 Cowen, 706; Melvin v. Proprietors, etc., 5 Met., 15; Drew v. Drew, 8 Foster, 489; Parker v. Kane, 22 How., 1.
    We claim, therefore, that Cooper’s mortgage does not cover lot one, in block eighteen. '
    3. Conceding, however, for the argument that this position is not tenable, and that the three parcels are included, we insist that the value of the twenty-three feet of the parcel in section seven, which was released by him on May 31st, 1860, after Eldred and Yincent’s rights had accrued, should be deducted from the amount of his mortgage.
    The release by Cooper seems, by the original bill and answer, to have been contemporaneous with that by ,the subsequent mortgagee, the insurance company; Cooper, therefore, knew of the existence of that mortgage. — James v. Brown, 11 Mich., 26.
    The record shows such a complication of rights, through the action of Cooper, that if loss is to be sustained by either creditor, he should bear the burden. — Bailey v. Gould, Walk. Ch., 478.
    4. Courts of equity direct the marshalling of securities, to the end that equal justice shall, as far as practicable, be done to all parties. They have in view the protection of the debtor and the creditor, and they will not' so. order the sale of the property, as injuriously to affect the interests of the debtor. — Willard’s Eq. Juris., 337, etc.

    What purpose had John Bigly in view in expressly excepting the Cooper mortgage from the covenants in his deeds ? What else could it have been than to make that property subject to and specially chargeable with the mortgage ? ‘
    Although we do not claim that Thomas B. Bigly was personally liable to pay the Cooper mortgage, we insist that it is necessarily implied that the property conveyed to him should be chargeable with it. — 1 Lead. Cases in Eq., 454; Jamel v. Jamel, 7 Paige, 591; Ferris v. Crawford, 2 Denio, 595; Cumberland v. Codrington, 3 Johns. Ch., 261; Mason v. Payne, Walker’s Ch., 463.
    But Thomas B. Bigly has not even' asked the Court, by any pleading, for any discrimination in his favor. Even if he had, he must show himself a bona fide purchaser. The property must have been fairly and honestly aliened by the debtor to bring the case within the rule as to sales in inverse order. The rule is not based upon the mere fact of a prior conveyance, or the maxim, Prior est in tempore, potior est in jure. It rests upon superior equity, and if the party seeking its application holds a title affected by fraud, or if it is surrounded by circumstances which withdraw it from equitable protection, the rule does not apply. — Peck v. Ellis, 2 Johns Ch., 136; Guien v. Knapp, 6 Paige, 35; 2 Lead. Cases in Eq., 202, 209,
   Campbell J.:

This is a suit brought to obtain a marshalling of securities, and to enforce the application of certain mortgaged lots before recourse is had to a parcel of property covered by the same mortgage, but claimed to have been disposed of before the other premises, and, therefore, not liable until the other property has been exhausted.

John Bigly, July 12, 1853, mortgaged to David Cooper three parcels of land in Detroit — one on Woodward avenue, one on Fort street, and one on Detroit river. A question arises concerning the description of the Fort street lot, which will be referred ,to in its place. On the 29th day of April, 1856, he mortgaged the Woodward avenue lot to the Michigan Insurance Company. On the 10th day of September, 1857, he conveyed the river lot to Thomas B. Bigly in fee. On the 5th day of April, 1859, he mortgaged the Fort street and Wood-wood avenue lots to Francis E. Eldred. On the 20th of October, 1859, an execution was levied on the Fort street lot, in favor of one William H. Pattison, and January 11th, 1860, the lot was bid off at sheriff’s sale by Frank Vincent, who received a deed May 20, 1861.

May 31, 1860, Cooper and the Michigan Insurance Company released, a portion. of the Woodward avenue lot. August 8, 1860, the Insurance Company filed a bill to foreclose their mortgage, and the property was bid off by an agent, and conveyed back to the Michigan Insurance Bank, (a new corporation, succeeding to the rights of the old one,) December 1, 1862. December 10, J860, Cooper received a deed from John Bigly of the Woodward avenue and Fort street lots. The Insuranee Bank filed a bill, October 13, 1862, to compel Cooper to foreclose Ms mortgage, and sell the property in the inverse order of alienation. Cooper subsequently purchased the title of the Insurance Bank, and .filed a supplemental bill to foreclose Ms mortgage, claiming a sale in the same order of priority. The Court below granted the prayer so far as Cooper’s rights were concerned, but as between Thomas B. Bigly and Eldred and Vincent, required the river lot to be sold before the Fort street lot.

The first question which presents itself is, whether the Insurance Company, by its mortgage, obtained any priority over the other parties claiming by subsequent conveyance or incumbrance.

It has always been understood to be the settled law of this State that, where mortgaged premises are conveyed or incumbered in parcels, they are, upon a foreclosure, to be sold in the inverse order of such conveyances or incumbrances, unless the mortgagee will be prejudiced by having the property sold in parcels —a thing- which can never happen where the property, when mortgaged to him, was treated as separate. This doctrine was recognized in Mason v. Payne, Walker’s Ch. R., 459, and Caruthers v. Hall, 10 Mich. R., 40, in both of which cases the principal exception to the rule was referred to and enforced. The same principle was recognized and explained in James v. Brown, 11 Mich. R., 25. It rests cMefiy, perhaps, upon the grounds that where one who is bound to pay a mortgage, confers upon others rights in any portion of the property, retaining- other portions himself, it is unjust that they should be deprived of their rights, so long as he has property covered by the mortgage, out of which the debt can be made. In other words, his debts should be paid out of his own estate, instead of being charged on the estates of his grantees. Any other rule would be, in effect, to enable him' to enjoy for his own benefit that which he has once vested in- another, and, in a measure, to recall Ms own grant. The rule cannot, therefore, depend upon the existence or non-existence of covenants of warranty. It depends simply on the fact whether he has or has not seen fit, in making a 'disposition of a part. of his incumbered premises, to charge it primarily with the payment of the incumbrance. 'Whenever he so charges any part, the purchaser takes it subject to the burden, and the relative date of his purchase is immaterial. — See cases cited above; Welch v. Beers, 8 Allen's R., 151; Kilbourne v. Robbins, 8 Allen's R., 466. It has, indeed, in several cases cited at the bar, been held that the covenant of warranty was very important, in determining the intent of the mortgagor not to charge the mortgage on the property sold. But there is no satisfactory authority holding that, in the absence of such a warranty, no such intent could be presumed. On the contrary, wherever the doctrine of priority is respected at all, it has been enforced unless an opposite intent was made out. And such appears to us ¡the commonsense inference; for a man owing a debt, for which Ms own property remains liable, must naturally be supposed to expect to have it paid out of Ms own means, unless he has bargained to the contrary. And this equity, having arisen in favor of the first purchaser, must remain in Ms favor against any subsequent equities of other parties derived from his grantor.

There are some States in which all parcels of mortgaged land are hold liable ratably. — See cases collected in notes to Story's Eq. Jur. §§638, 635, 1233, a. — And it has been suggested by Judge Story, and was claimed on the argument, that a purchaser of one lot cannot be expected to search the record for the title of other lots, and, therefore, should not be subjected to equities attaching to them. But this reasoning entirely passes over .the well-settled rule, that where a person is obliged to take notice of a deed, he is hound by notice of all that it contains which can affect him. Having notice of a mortgage covering other lots besides his own, he is bound to ascertain whether those lots have been sold previously, in such a way as to throw any peculiar burden on the one he is purchasing, just as much as whether-that lot has been directly,' instead of indirectly, conveyed or charged prior to 'his purchase, by his grantor, or his predecessors, in the title. The registry laws furnish the means for one investigation as easily as for the other. And the construction put upon these laws is in accordance with this view. — Chapman v. West, 17 N. Y., 125; Chase v. Woodbury, 6 Cush., 143; Brown v. Simmons,, 44 N. H., 475. This latter case is a well considered! case, and collects the authorities quite fully upon the-whole subject, so that it will not be desirable to multiply the citations.

In the present case, the Michigan Insurance Company became mortgagees before any other rights intervened. They thus obtained a priority; and, having foreclosed their mortgage, and no surplus having arisen from the sale, there is nothing to embarrass their claim to have: all the other mortgaged premises sold first, unless the release made by them conjointly with Cooper of a. portion of the lot can have this effect. But inasmuch as they are not affected by subsequent conveyances of which they had no notice, and as the record is not constructive notice of such subsequent conveyances, neither they nor Cooper can be damnified by this release. It comes entirely within the rule of James v. Brown, above cited.

It is claimed, however, that the Fort street lot is not described in, and therefore is not covered by the Cooper-mortgage at all,, or, if at all, that the description is imperfect for purposes of registry; and it is therefore-insisted, by Eldi’ed and Vincent, that their titles are unaffected by that mortgage, no .actual notice having been brought home to them. The description in the mortgage is, “lot number one (1), in section twenty-eigM (28), on the Forsyth or Porter farm in said city, being on the southwest corner of Fort and Sixth streets.” The lot should have been described as in section eighteen (18), the other parts of the description being correct.

Inasmuch as in this description there are certain elements 'which are correct, and one which is incorrect, there could, under no circumstances, be any reason for doubting what property was really meant, unless there were two lots, to each of which a,part of the description might apply. If there were any section twenty-eight on the Forsyth farm, then the question would arise whether the description by block and lot, or by streets, was the «correct guide. But there is no inflexible rule of, law which will, in a case of this kind, prevent the parties from showing by other means which of the two is the erroneous demonstration.; and while we do not propose to decide a question not really before us, we shall at least require argument before we shall feel authorized to declare that, when a deed is on record, which may be intended for one lot as well as«for another, a party is not by such a' description put upon inquiry, to ascertain whether it is the one or the other that was conveyed In the present case, as it does not appear that there is any section twenty-eight on the farm, there could be no •ambiguity, and that element must be discarded; and the remainder of the description is sufficient, without any further help, to fully identify the premises. • It also appears affirmatively that John Bigly owned no other lot in that part of Detroit, and did own this. We perceive no difficulty in determining the lot intended by the mortgage. The case is plainer, if possible, than that of Anderson v. Baughman, 7 Mich. R., 69, where the same question was raised upon a similar error. We think, therefore, that the Insurance Bank title must be preferred to that of Eldred and Yincent. .

There is no doubt of the right of the Insurance Bank to- file a bill to protect their title. Although they would have a right to redeem, and then enforce the security in their own favor, yet inasmuch as the equity which they set up is that they should not be compelled to contribute at all, until the other lands are exhausted, and inasmuch as a sale .is the only usual means of enforcing a mortgage, the course resorted to is the most aiopropriate where the mortgage has actually become due, as in this case. In this State, at all events, there can be no question about it, as it has been settled that a bill to redeem may pray a sale of the premises, • and that no decree barring redemption without a sale shoujd be made, unless under special circumstances, if at all. — Baker v. Pierson, 6 Mich, R., 522; Graydon v. Church, 7 Mich. R., 36; Emerson v. Atwater, 12 Mich. R., 314.

Nor do we perceive any legal obstacle in the way of the present complainant. The doctrine is too familiar to need authorities, that a mortgage is not merged by a purchase of a partial or entire interest in. the equity of redemption, where Jihere are intermediate rights, or where the interests of the mortgagee require the titles to be kept separate. He could have filed an original bill to foreclose his mortgage, and to protect his rights of priority obtained from the Bank in the Woodward Avenue lot. The fact of his being a mortgagee does not deprive him of the right to purchase and enforce such priorities.— Chase v. Woodbury, 6 Cush., 143; Snyder v. Snyder, 6 Mich., 470; Kilbourne v. Robbins, 8 Allen, 466.

Having sold their entire interest, the Insurance Bank could not properly continue their proceedings, which became defective until their assignee should come in. But the suit did not entirely abate, so as to prevent its renewal and continuance by the assignee. He could file an original bill in the nature of a supplemental bill, to set up tbe change of title, and; to obtain the same relief which could have been had under the original bill.— Webster v. Hitchcock, 11 Mich. R., 56. This is what Mr. Cooper has done; and the relief he asks is the precise relief which would have been granted under the original bill, namely, a foreclosure by sale of the River and Fort street lots, in exoneration of the Woodward Avenue lots, and prior to those. We think the present suit is properly framed.

So far, then, as Cooper ‘is concerned, he was entitled to a decree requiring the mortgaged premises to be sold in such order that the Woodward avenue lot should be sold last. The priorities between the River and Fort street lots concern only the defendants. And the question next arises, whether the conveyance to Thomas B. Bigiy is to be preferred before' the rights of Eldred and Vincent..

That his deed is prima facie prior in equity to their-claims, is plain from the considerations already referred, to. But it is claimed that this deed contains a provision, which postpones it. The deed contains the usual clauses-of warranty; but the warranty and the covenant against, incumbrance, except “ a certain mortgage,” the date and amount whereof,. and the mortgagee’s name, are left ini blank. It was insisted • on the argument that this exception is void for uncertainty. In the absence of proof of any mortgage but Cooper’s, we are not disposed to regard it so. That is certain which can be made certain; and, until two mortgages appear, there is no ambiguity. The question, then, arises, whether, by this phraseology, the Cooper mortgage is chargeable primarily on this lot. .We do not think the language leads to this conclusion. It only protects the grantor from any liability over, in case this land should become necessary and be disposed of .to pay the mortgage. But it does not provide that this. lot shall he charged in preference to the Fort street property, still retained by him; and wé think it would be a strained construction to consider this deed as depriving the grantee of any advantage the priority of conveyance would afford him. If the Fort street lot should be insufficient, the warranty without the exception could not have saved this lot, but without the exception John Bigly would have been responsible on his covenants, had it been sold on the mortgage. By inserting this exception, he conveys the property subject to the risk that the remaining property yet unsold and unincumbered will not suffice to pay the debt, and no more. In other words, the deed is, so far as the Cooper mortgage goes, .a mere conveyance without warranty; but it is not a •conveyance upon condition, or subject to any specific duty or burden. It it quite as effectual as any deed without covenants, and in some respects more so, and the absence of covenants does not vitiate or change a title, or deprive it of priority.

It is claimed, however, that, as against Vincent and Eldred, this deed is void for want of consideration, and as designed to defraud creditors. We do not deem it necessary to examine into the proof of consideration. ‘There is nothing before us' which would show that John Bigly was not entitled to deal with the ¿R'operty as he pleased. It does not appear that, at that time, he owed unsecured debts, or was in embarrassed circumstances. But had he been so, it could not concern these parties. They - stand on the record simply as subsequent purchasers of other property, having full record notice of this deed, and at liberty to purchase or not, as they saw fit. They have no greater rights than John Bigly would have had if he had not conveyed to Eldred, or if his equity of redemption had not been purchased by Vincent. He could not have revoked his own deed, had it been without any consideration whatever. No one can assail snob a conveyance, except some creditor who bas taken the requisite steps to entitle him to resort to the land in payment of a debt, as against which it can be made out to bave been fraudulent. — Fox v. Willis, 1 Mich. R., 321. Eldred and Vincent, so far as the present case goes, stand in John Bigly’s shoes, and not in opposition to bis rights, as they remained after the' deed to Thomas.

"We think tbe Fort street lot should be sold before any resort is bad to tbe River lot.

Tbe decree below must be so modified as to subject -the Fort street lot to sale first, and tbe River lot second. In all other respects it is to be affirmed. Tbe costs of ■this Court to be paid by Yincent to tbe complainant.

Cooley and Christiancy JJ. concurred.

Martin Cb. J. did not concur.


source: Caselaw Access Project

author: Coolest J.

license: Public Domain

text:
    The People on relation of Theodore A. Drake v. Daniel Mahaney.

      .Judicial notice. — Courts are bound, judicially, to take notice of what the law is, and to enable them to determine whether all tho constitutional requisites to the validity of a statute have been complied with, it is their right, as well as duty, to take notice of tho journals of tho Legislature.
    ijBut, although the Courts are bound to take judicial notice of legislative action, so far as it affects tho validity of statutes, they have no such power as respects the facts attending the election of the several members of tho Legislature, even after such facts have been spread upon tho legislative journals.

      *Constitutional law — each house exclusive judge of election qf its own members,— The constitution (Sec. 9, Art. 4,) providing that “each house shall judge of the qualifications, elections and returns of its members,” confers upon each house powers of a judicial nature, in the exercise of which its decision is conclusive, and not subject to review by-the Courts.
    ■“Therefore an act of tho Legislature cannot be declared void because a portion of the members voting for it, and whose votes were necessary to its passage, were not legally elected, and wero retained in their seats by a decision opposed to the constitution.'

      Constitutional lato — Legislative acts, their title. — Tho provision of tlio constitution 1 (Sec. 20, Art. 4,) that “no law shall embrace more than one object, which, shall bo expressed in its title,” was designed to prevent, 1st, the joining in the same bill subjects diverse in their natures, and having no necessary connection; and, 2d, the insertion of clauses in a bill of which the title-gives no intimation,

      Detroit Police Act — The Police Act for the City of Detroit (Laws 1865, p. 99> has for its object tho singlo purpose 'of establishing a police government for that city, and this object is fairly indicated by its title. It is, therefore, not in conflict with the provision of the constitution above quoted.

      Constitutional law — Legislative acts amending''prior acts by implication. — A law which does not assumo, in terms, to revise, altor, or amend any prior act, or section of an act, but by various transfers of duties has an amendatory effect by implication, although it expressly repeals all inconsistent acts, does not conflict with Sec. 25 of Art 4, of the constitution.
    It is not the meaning of this provision of the -constitution that upon tho passage of each new law, all prior laws which it may modify by implication shall be re-enacted, and published at length as modified.

      Constitutional law — Limitation upon taxation in cities and, villages, — The provisions , of sections 22 and 82 of said Police Act, which make it the duty of the Board of Police to proparo and submit to the City Controllor, on or before tho first of Kay in each year, an estimato, in detail, of the cost and expense of maintaining tho police department, and require the Common Council of the city to raise the same by tax, are restrictive of the power of taxation within the meaning of Sec. 13, Art. 15, of the constitution.
    The constitution has not prescribed the character of the restriction which shall be imposed in such cases, and an act which limits the power of taxation as in this act, is as much a restriction as if it confined the power to a certain per centage upon taxable property, or proportioned to the number of inhabitants in the city.
    Nor are sections 22 and'32 of said act subject to the objection of not distinctly stating the tax and the object to which it is to be applied, within tho meaning of Sec. 14 of Art. 14, of tho constitution.

      Constitutional law — violation of fundamental principles in legislation — Legislation, ' in violation of sound political principles, but which does not infringe tho constitution, cannot be declared void on that ground.
    Said Police Act having abolished the office of City Marshal, tho Legislature after-wards, at the same session, passed another act amending the charter of the city of Detroit, in respect to the number of jurors to bo summoned for the purpose of opening, closing and altering streets, using tho language : “ to bo summoned by the 'Marshal.” Held, that said act did not have the effect to \continue said office.

      Heard October 12 and 13.

      Decided October 28.
    The facts are stated in the opinion.

      J. W. Loclmood for the relator.
    1. Section 9 of Article IV. of .the State constitution provides that “each house shall choose its own officers, determine the rules of its proceedings,' and judge of the qualifications, elections and returns of its members.” The pleas show, upon their face, that the House of Representatives did so judge of the qualifications and election of the members referred to.
    This action was judicial, 'and' cannot be called in question — 1 Kent Com., 235.
    2. To authorize a Court to declare a statute unconstitutional, it should be 'able to point out the part of the constitution violated, and the infraction should - be clear and free from reasonable doubt. — Tyler v. People, 8 Mich., 320; Trustees of Dart. Coll. v. Woodward, 4, Wheat. 518; Fletcher v. Peck., 6 Cranch., 87.
    The Legislature of Michigan possessed entire legislative power within the State subject only to the limitations of the constitution.
    The constitution of the United States is a grant of power. That of the State is a limitation of power. — Pratt v. Allen, 13 Com., 119.
    It cannot be successfully denied that the city of Detroit is a public corporation, and that, as such, its charter is subject to legislative control. — 2 Kent, 275; Mayor of Baltimore v. The State, 15 Md. Rep., 376; Regents of University of Maryland v. Williams, 9 Gill &b Johnson, 365; State of Maryland v. Baltimore and Ohio Railroad, 3 How., 535; People v. Morris, 13 Wend., 325; Terrett v. Taylor, 9 Cranch., 42.
    The power to govern belongs to the people of the State, and they will not be presumed to have parted with it except for the common good.
    The police power is a sovereign State power, which may be delegated and resumed at pleasure. —15 Md. Rep., 390; Stewart v. M. & F. Ins. Co., 11 La., 53.
    Similar statutes of broader scope have been declared valid by the appellate Courts of last resort in New York and in Maryland. — People ex rel Wood v. Draper, 15 N. Y. Rep., 522; 15 Md., 390.
    The Police Act of 1865 shows, upon its face, that it' was duly ordered to take immediate effect, and it will be' presumed to have been so ordered by a constitutional vote, and so the journal will show.
    3. It is claimed on the part of the respondent that section 36 of the act “ to establish a police government for the city of Detroit,” approved February 28, 1865, is in conflict with section 25, of ‘ article IV". of the State constitution, which is in these words: “No law shall be revised, altered or amended by reference to its title only, but the act revised, or section or 'sections of the act altered or amended, shall be re-enacted and published at length;” for the reason that section 2 of chapter 2 of the revised city charter names a Marshal among the city officers who shall be appointed by the Common Council. — Laws of Mich., 1861, p. 181. And section 36 of the Police Act of 1865 abolishes the office of Marshal.
    We think this objection is at best merely colorable. 'The Police Act does not refer to the act revising the •charter by its title, or undertake to amend it. But it is •an independent act, as its title indicates, “to establish a police government for the city of Detroit.” The City Marshal was a police officer, and it was important that the functions of his office and that of the new police should' not clash, and that as the new police could as well perform the Marshal’s duties for their regular pay, it was desirable to the taxpayers that the city should be saved the salary of the Marshal and his assistant.
    Hence section 36 directly abolishes the office of City Marshal, and devolves its duties on the Superintendent of' Police.
    It is a sound and well settled rule of construction of ■constitutions as well as statutes, that the reason and ■object of the provision or enactment must be looked at in ascertaining its meaning. ^No authority is needed for this.
    Before this constitution was adopted, the universal practice in the Legislature was to amend statutes in. important particulars, by referring to the title of the act. and section to be amended by its number, and then declare certain words struck out in the middle, or end of' the section, and certain others inserted — giving the reader no clue, without turning to the statutes, to the object intended, and this was not only an 'inconvenience in practice, but used as a fraud in legislation — many "members of the Legislature being often deceived as to the object of the act they were voting for.
    Now, section 36 of this act is liable to' no such objection. It simply abolishes the office of Marshal. It is not in the form of an amendment to any former act,, and does not refer to any. It deceives no one, and creates, no misunderstanding. Those who voted for it saw, in plain terms, what they were doing. — Davis v. The State,, 7 Md., 151-159.
    4. This clause of the constitution has received a legislative construction for a series of years, and which has. been long acquiesced in. — Laws of 1857, p. 209; 1855, p. 31; 1857, p. 200; 1855; p. 3; 1859, p. 483.

      Devi Dishop for defendant.
    1. The Police Act of 1865 was not ordered to take immediate effect by a two-thirds vote of the- members ' elect to the House of Representatives, as required by section 20 of Art. IY. of the constitution; and consequently the Police Board was organized, according to the information filed in the case, long before the act, under which they derive' their power, took effect as law.
    The question arises upon the soldiers’ vote cast, out of the State, in 1864, and the composition of the House of Representatives as produced by it; nine members of 'the House not having been elected except by that vote, who were nevertheless admitted to seats and to active membership, against the members really elected by-the home vote so called.
    The act No. 21, approved February 5, 1864, by which Soldiers were authorized to vote out of the State, has been declared by this Court to be unconstitutional, null and void. — People v. Blodget, 13 Mich.

    As a consequence, the two hundred votes cast out of the State, for each of the nine admitted members, were illegal and void, and these men were therefore not elected to the house by virtue of any law, or any legal authority. They were not members of the house; they had no right to seats therein, and the act by which they were admitted- was an act which had no authority of law, and which was in itself null, - and of no effect.
    Consequently this Police Act was not ordered to take immediate effect by sixty-seven votes, being the con'stitutional two-third of the house, but by only fifty-eight votes out of one hundred of which the house was composed.
    If this act, therefore, took effect at all as law, it was not till June 20, 1865, that being ninety days after the close of the session at which it was passed, which was after, this Board of Commissioners qualified and organized, or attempted to organize, under the act.
    All this seems very clear, unless the clause of Sec, 9, Art. IY., authorizing each house of the Legislature to “judge of the qualifications, elections and returns of its members,” vests in the house the power to determine absolutely and finally, all questions in regard to its own. membership.
    It is submitted that this clause of the constitution vests in each house the right and duty simply to determine ; first, whether the returns or certificates of election are in form and substance, in conformity with law; second, whether a man who presents himself for membership has the requisite qualifications, according to sections 5 and 6, article IV.; third, whether, at a proper election, he has received a majority of legal votes cast by legal voters, under the law.

    In this they do not act judicially upon statute or constitutional law, for the judicial power by Sec. 1, Art. VI., is vested in the Courts or judicial tribunals.
    And the whole judicial power is thus vested in the courts by this clause of the constitution.— Chandler v. Nash, 5 Mich., 409.
    The members of the house are to act in subordination to the law, and not adjudge, as a Court of last resort, what that law is. When it is ascertained what the law is, they must obey it.
    2. This Court has authority to adjudicate upon acts of the legislative body, and to pronounce them of no effect. The whole includes every part. The legislative body includes every integral part of such body. Each house is an integral part of that body. Therefore the power to adjudicate upon the acts of the whole body, includes the power to adjudicate upon the separate acts of each integral part. — 1 Kents Com., 504; Supervisors v. Henan, 2 Minn., 330; Wartman v. Philadelphia, 33 Pa. St., 202.
    And this Court should exercise the power in any case and in any form in which the question may be presented. Otherwise there will be no way of enforcing the law of .the land, and compelling its observance on the subject. .This is the only remedy of the people in those instances of violation of law.
    It is w’ell settled that in order to determine the question whether an act has been passed with all the forms required by the constitution, the Court will g'o behind the act, and look into the engrossed bills, - the journals and the votes of the legislative body. — State v.

      McBride, 4 Miss., 303; LeBow v. People, 1 Denio, 9; Bank of Buffalo v. Spencer, 2 Denio, 97; Purdy v. People, 4 Hill, 384; Spangler v. Jacoby, 14 Illinois, 297; People v. Supervisors, 4 Selden, 317; Caboon v. Dodd, 14 Ind., 347; Burr v. Ross, 19 Ark., 250; Graves v. Green, 1 Boug., (Mich.,) 351.
    So, also, when it becomes necessary to determine whether an act has received a necessary two-thirds vote, in accordance with the constitution. — Same authorities.

    These constitutional provisions are obligatory. They are not merely directory. — Supervisors v. Henan, 2 Minn., 330; 7 Indiana, 683; 9 Indiana, 383.
    We submit, therefore, that this Police Act was not ordered to take immediate effect by a two-thirds vote of the members elected to each house, and that it did not take effect as law, if at all, till June 20, 1865.
    3. By Sec. 5 and 6, of Act No. 325, which was passed March 21, 1865, (page 680,) nearly.a month after this Police Act was passed, the office of the City Marshal is virtually and by necessary implication continued.
    Section 36 abolishes, absolutely, the office of City Marshal, and then the sections 5 and 6 of Act No. 325, refer to that officer, and require him to perform certain duties therein expressed. When two acts of the Legislature are thus found in conflict, the rule of construction is to give effect to that which is last in order of time. — Federalist (Hamilton) Ho. 78.
    4. The meaning of Sec. 20 Art. IV. of the constitution, which prescribes that “no law shall embrace more than one object, which shall be expressed in its title,” is well settled; and this Police Act is so multifarious in its provisions and objects, that we can have no doubt of its being within the prohibition. — 1 Kent, 519; Railway v. Potts, 7 Ind., 681; State v. Wilson, 7 Ind., 516; Igoe v. State, 14 Ind., 239; Supervisors v. Heenan, 2 Minn., 330; Bassier v. Steele, 13 La. An., 433; Menherter v.

      Price, 11 Ind., 199; Fraley, v. State, 9 Ind., 363; Gillespie v. State, 9 Ind., 380.
    5. This act violates section 25 of article TV. of the constitution. It' amends, alters and repeals many provisions of law, which are designated as “ acts and parts of acts inconsistent with the provisions of this act,” without re-enacting at length the sections thus amended and altered.
    All the mischiefs of confused legislation, which_ this section 25 was intended to prevent, -are upon us again, if _ this act is allowed to stand. — Landon v. Applegate, 5 Ind., 327; Rogers v. State, 6 Ind., 31; Walker v. Miller, 9 Ind., 100.
    6. Again, Section 13 of Art. XV. of the constitution requires the Legislature to restrict the powers of taxation in cities. This act, sections 22 and 32, authorizes the Board of Police, by way of estimates, to demand whatever amount of money they please; which estimates and demand being laid before the Common Council, the latter are required to raise it by taxation whether they will or no.
    That this power, to demand money is unlimited, is shown by the fact that great -powers are given generally to this Board, among which (Sec. 25) is the power “to quell riots, suppress insurrections, protect the public property, and preserve the public tranquillity.” There may be no limits to their exactions under various pretences.
    7. This act also violates the words, “ shall distinctly state the tax,” in Sec. 14, Art. XIV., of the constitution. Two things are provided for in this section, that is to .say, the tax, and the object of the tax. One clause specifies the object. By the other the tax is to be stated. How stated ? Stated as we would state anything. Fix the amount. Fix the quantity. As we would state an account. They are words of limitation. The unlimited power of taxation, therefore, given by sections 22 and 32 of this act, is a violation of this clause of the constitution.
    It results from this argument that the title of this act is not in compliance with Sect. 20, Art. iN. of the constitution. The object of the act is not expressed in the title.
    8. This act violates one of the first principles and maxims]|of free government: no taxation without representation. A Board, entirely independent of us — the people of Detroit — in whose appointment we have no voice, over whose conduct we have no control, who receive their appointment at Lansing, may demand of us, in the form of taxation, whatever money their pleasure shall dictate, and we must p>ay their demands, even] to the last farthing we possess. Such a power ought not to exist.
   Coolest J.

By section 36' of “An Act to establish a Police Government for the City of Detroit,” approved February 28th, 1865, (Laws of 1865, p. 99,) it is provided that “ the offices of City Marshal and Assistant Marshal of the city of Detroit are hereby abolished, and the duties of said offices shall hereafter be performed by the Superintendent of Police, or by the captains and sergeants of police, under his direction, in accordance with the provisions of this act.” Butj this section was not to become operative until the Superintendent of Police, or Captain of Police, authorized by said act to be appointed, had been sworn into office, nor until certain notices should be given, as provided by section 38 of the same act.

The Commissioners of Police named in the act, having organized and appointed a Superintendent, and he having-been sworn into office, the President of the Board of Police caused the notices provided for by section 38 to be given] on the sixteenth day] of May last, including a notice to the respondent, who then held the office of Marshal of the city of Detroit under an appointment made by the Common Council, January 18th, 1864, for the term of two years. The respondent disregarded this notice, and treating the act in question as invalid, has assumed to be still in office as City Marshal, and to be rightfully performing the duties of that office to the present time.

To an information in the nature of a quo warranto, charging him with unlawfully assuming to discharge the duties of Marshal, the respondent has interposed several pleas which raise the questions: First, whether the act in question is constitutional, and, second, if so, whether it was ever legally ordered to take immediate effect, so that it came into operation prior to the time when the Board of Police organized and gave the notices which have been referred to.

The constitution (Art. IV., Sec. 20,) provides that “no public act shall take effect or be in force until the expiration of ninety days from the end of the session at which the same is passed, unless the Legislature shall otherwise direct by a two-thirds vote of the members elected to each house.” The session at which this a'ct was passed terminated on the twenty-third day of March, and laws not ordered to take immediate effect would, - therefore, not come into operation until the twenty-first day of June. The legislative records show that this act was ordered to take immediate effect; but the pleas set forth certain facts which, it is claimed, show that in the House of Representatives the two-thirds vote of sixty -seven members included several who had not been elected by a majority of legal votes, but who, it is also claimed by the pleas, Avere notwithstanding- retained in their seats by an adjudication of the House in their favor. And it is insisted that this Court is not bound by the action thus taken, but may go behind the law as approved to ascertain whether, in fact, the constitutional vote necessary to give it effect before the expiration of the ninety days, was cast by members legally chosen.

As the Court are bound judicially to take notice of what the law is, we have no doubt it is our right as well as our duty to take notice not only of the printed statute books, but also of the journals of the two houses, to enable us to determine whether all the constitutional requisites to the validity of a statute have been complied with. The printed statute is not even prima facie valid when other records, of which the Court must equally take notice, show that some constitutional formality is wanting. No plea is necessary to bring to the notice of the Court facts which the Judges must judicially know, and in respect to which no proof could be given. — 1 Chit. Pl., 215; Coburn v. Dodd, 14 Ind., 348; Board of Supervisors v. Heenan, 2 Minn., 336; People v. Purdy, 2 Hill, 33; De Bow v. People, 1 Denio 11; Commercial Bank of Buffalo v. Sparrow, 2 Denio 101; People v. River Raisin and Lake Erie Railroad Co., 12 Mich., 397.

But although the Courts must take judicial notice legislative action, so far as it affects the validity of statutes, they have no such power as respects the facts attending the election of the several members, and it remains to be seen whether we can notice those facts even after they have been spread upon the legislative journals, and make them the basis of judgments, the retrospective effect of which would be to unseat members of a body long since adjourned, and to annul its action by declaring the votes of such members illegal and invalid.

It is insisted by respondent’s counsel that, although section' nine of article four of the constitution authorizes each house to “judge of the qualifications, elections and returns of its members,” yet it does not do more than to empower them to determine, First, whether the returns or certificates of election are in form and substance in conformity with the law; Second, whether a man who presents himself for membership possesses the requisite qualifications; and, Third, whether, at a proper election, he has received a majority of legal votes cast under the law. And in passing iipon these questions, it is said they do not act in a judicial capacity to determine what the law is, since the judicial power by section one of article six .is vested in certain Courts and officers; but they sit under the law to apply it, as judicially expounded, to the facts before them.

It is a sufficient answer to this argument, that while the constitution has conferred the general judicial power of the State iipon the Courts and officers specified, there are certain powers of a judicial nature which, by the same instrument, are expressly conferred upon other bodies or officers: and among them is the power to judge of the qualifications, elections and returns of members of the Legislature. The terms employed clearly shoiv that each house, in deciding, acts in a judicial capacity, and there is no clause in the constitution which empowers this, or any other Court, to review their action. The “general superintending control” which the Supreme Court possesses under section three of article six of the constitution, “over all inferior courts,” does not extend to the judicial action of the legislative houses in the cases where it has been deemed necessary to confer judicial powers upon them with a Ariew to enable them to perfect their organization and perform their legislative duties. The houses are not “inferior Courts,” in the sense of the constitution, but, as legislative organizations, are Arested -with certain powers of final decision, for reasons Arhich are clearly imperative.

It may happen, as suggested in the argument, that with each house, not only deciding- for itself questions of fact, but also construing for itself the law, we may sometimes witness th'e extraordinary spectacle of the two bodies construing and enforcing the law differently, while a third construction is enforced by the Courts upon the public at large. But with this possibility in view, the evils of allowing the Courts a supervisory power over the decisions of the houses upon the admission of members, are so great and so obvious that it is not surprising that the framers of the constitution refrained from conferring the power. The supervision could not ordinarily be exercised during the session of the legislative body, and to correct the decisions afterwards by amending- the laws passed, would only be to substitute a great public evil for that which might have been a wrong to an individual member and to the district which elected him, but which could seldom affect the State at large.

It can make no difference that in this case, according to the pleas, the question passed upon by the house was purely a questionr of law. The question of the legal election of a member is usually a question compounded of law and fact, and the house must necessarily pass upon both. If we have the power to review the decision in one t case, we • have in all. If we can correct their erroneous construction of a law, we have the same power to correct any erroneous decision upon returns, qualifications or majorities. It is sufficient for us to say that the constitution has not conferred upon us this jurisdiction, and whether the decision made is right or wrong, we shall leave it where it has been left by the fundamental law of the State.

But it is insisted that the whole law is unconstitutional -and void, because in violation of section twenty of article four of the constitution, which provides that “no law shall embrace more than one object, which shall be expressed in its title.” The history and purpose of this constitutional provision are too well understood to require n y elucidation at our hands. The practice of bringing together into one bill subjects diverse in their 'nature, and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure jbe passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the State. It was scarcely more so, however, than another practice, also intended to be remedied by this provision, by which,. through dextrous management, clauses were inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies whose members were not generally aware of their intention and effect. There was no. design by this clause to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus multiplying their number;but the framers of the constitution meant to put an end to legislation of the vicious character referred to, which was little less than • a fraud upon the public, and to require that in every case the proposed measure-should stand upon its own merits, and that the Legislature should be fairly satisfied of its design when required to pass upon it. — See Board of Supervisors v. Heenan, 2 Minn., 336.

But this purpose is fully accomplished when the law 'has but one general object, which is fairly indicated by its title. To require that every end and means necessary to the accomplishment of this general object should be-provided for by a separate act relating to that alone,, would not only be senseless, but would actually render-legislation impossible. The police government of a city coxdd not be organized without a distinct act for each specific duty to be devolved upon it, and these could not be passed until a multitude of other statutes had taken the same duties from other officers before performing them. And these several statutes, fragmentary as they must necessarily be, would often fail of the intended effect, from the inherent difficulty of expressing the legislative will when restricted to such narrow bounds.

The general purpose of this act is “ to establish a police government for the city of Detroit.” It would be difficult to express it better or more concisely than it is expressed by the title. To accomplish this general object, officers are airthorized to be appointed, who shall take upon themselves certain duties before performed by other officers, as well as certain new duties now created, and who are authorized to appoint and govern a force. The act, with great particularity, prescribes how this police government shall be rendered effectual; but this particularity cannot possibly bo objectionable so long as it introduces nothing foreign and. incongruous, but is confined to the means supposed to be important to the end indicated.

The Courts of some other States have been called upon, from time to time, to pass upon questions similar to this under their own constitutions, and their decisions are not entirety harmonious. None of them, however, have laid down a rule, tested by which, the main provisions of this act could be held unconstitutional, and we have, therefore, no occasion to enter upon a critical examination of them in this opinion.'

It is next objected that the law is invalid because in conflict with section twenty-five of article four of the constitution, Avhich provides that “no law shall be revised, altered or amended by reference to its title only; but the act revised, and the section or sections of the act altered or amended, shall be re-enacted and published at length.”

The act before us does not assume in terms, to revise, alter or amend any prior act, or section of an act, but, by various transfers of duties it has an amendatory effect by implication, and by its last section it repeals all inconsistent acts. We are unable to see how this conflicts with the provision referred to. If, whenever, a new statute is passed, it is necessary that all prior statutes, modified by it by implication should be re-enacted and published at length as modified, then a large portion of the whole code of laws of the State would require to be re-published at every session, and parts of it several times over, until, from mere immensity of material, it would be impossible to tell what the law -was. If, because an act establishing a police government modifies the powers and duties of sheriffs, constables, water and sewer commissioners, marshals, mayors and justices, and imposes new duties upon the executive and the citizen, it has thereby become necessary to re-enact and re-publish the various laws relating to them all as now modified, we shall find, before the act is completed, that it not only embraces a large portion of the general laws of the State, but also that it has become obnoxious to the other provisions referred to, because embracing a large number of objects, only one of which can be .covered by its title.

This constitutional provision must receive a reasonable construction, with a view to give it effect. The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not re-published, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form' for that express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain 'intent.

A third objection is made to the validity of this act tinder section thirteen of article fifteen of the constitution, which is as follows: “The Legislature shall provide for the incorporation and organization of cities and villages, and shall restrict their power of taxation, borrowing-money, contracting debts, and loaning their credit.” Sections twenty-two and thirty-two of the act make it the duty of the Board of Police to prepare and submit to the City Controller, on or before the first day of May in each year, an estimate, in detail, of the cost and expense of maintaining the police department, and the Common Council is required to raise the same by general tax. These sections, it is claimed, are in conflict with the provision referred to, since no limit is fixed by them to the estimates that may be made.

Whether this provision of the constitution can be regarded as mandatory, in a sense that would make all charters of municipal corporations and acts relating thereto which are wanting in this limitation invalid, we do not feel called upon to decide in in this case, since it is clear that a limitation upon taxation is fixed by the act before us. The constitution has not prescribed the character of the restriction which shall be imposed, and from the nature of the case it was impossible to do more than to make it the duty of the Legislature to set some bounds to a power so liable to abuse. A provision which, like the one complained of, limits the power of taxation to the actual expenses as estimated by the governing board, after first limiting the power of the board to incur expense within narrow limits, is as much a restriction as if it confined the power to a certain per centage upon taxable property, or to a sum proportioned to the number of inhabitants in the city. Whether the restriction fixed upon would as 'effectually guard the citizen against abuse as any other which might have been established, was a question for the legislative department of the government, and does not concern us on this inquiry.

It is also urged that sections twenty-two and thirty-two, of the act conflict with section fourteen of article fourteen of the constitution, which requires that “ every law which imposes, continues oi; revives a tax, shall distinctly state the tax and the object to> which it is to. be applied, and. it shall not be sufficient to refer to any other law to fix such tax or object.” It is sufficient for us to say that these sections, if to be regarded as imposing a tax within the meaning of this provision, do state the tax and the object to which it is to be applied, with precision. It was impossible that the amount should be fixed in advance; and there is nothing in the language employed in this section of the constitution which would warrant us in holding that every law providing for a tax is invalid, unless it limits in amount the sum to be levied.

It is further objected that the act is unconstitutional because it confers upon the Police Board certain judicial powers. This objection raises a question which is not before us upon thiá record, and -which,. therefore, we do not intend to decide.' The only question which the record presents is, whether, by the organization of the Board under the act, and the giving of the notices provided for by- section thirty - eight, the office of the respondent was terminated. Whether any specific power which the act undertakes to confer upon the Board -is constitutional or not, can only be tested when the Board assume to exercise it, and the other portions of the act could not be defeated by its invalidity, unless the nature of such unconstitutional power was such as to render it of vital importance to the whole. — See Smith v. Village of Adrian, 1 Mich., 495; Ames v Port Huron Log Driving and Booming Co., 6 Mich., 266; and Parsons v. Russell, 11 Mich., 113.

Besides the specific objections made to the act as opposed to the provisions of the constitution, the counsel for respondent attacks it on ' “ general principles,” and, especially, because violating fundamental principles of our system, that governments exist by the consent o,f the governed, and that taxation and representation go together. The taxation under the act, it is said., is really in the hands of a Police Board, a body in the choice of which the people of Detroit have no voice. This argument is one which might be pressed upon the legislative department with great force, if it were true in point of fact. But' as the people of Detroit are really represented throughout, the difficulty suggested can hardly be regarded •as fundamental. They were represented in the Legislature which passed the act, and had the same proportionate voice there with the other municipalities in the State, all of which receive from that body their powers of local government, and such only as its wisdom shall prescribe within the constitutional limit. They were represented in that body when the present Police Board were appointed by it, and the Governor, who is hereafter to fill vacancies, will be chosen by the State at large, including their city. There is nothing in the maxim that taxation and representation go together, which requires that the body paying the tax shall alone be consulted in its assessment, and if there were, we should find it violated at every turn in our system. The State Legislature. not only has a control in this respect over inferior municipalities, which it exercises by general laws, but it sometimes finds it necessary to interpose its power in special cases to prevent unjust or burdensome taxation, as well as to compel the performance of a clear duty. The constitution itself, by one of the clauses referred to, requires the Legislature to exercise its control over the taxation of municipal corporations, by restricting it to what that body may regard as proper bounds. And municipal bodies are frequently compelled most unwillingly to levy taxes for the payment of claims, by the judgments or mandates of Courts, in which their representation is quite as remote as that of the people of Detroit in this Police Board.

It cannot, therefore, be said that the maxims referred to have been entirely disregarded by the Legislature in the passage of this act. But as counsel does not claim that, in so far as they have been departed from, the-constitution has been violated, we cannot, with propriety,, be asked to declare the act void on any such general objection. An unbroken series of decisions in this State has settled the rule of law, that before we can declare an act of the Legislature invalid, its provisions must be found to conflict with the constitution. — Scott v. Smart's Executors, 1 Mich., 295; People v. Gallagher, 4 Mich., 244; Sears v. Cottrell, 5 Mich., 251; Tyler v. People, 8 Mich., 320; People v. Blodgett, 13 Mich.

We have only one other objection to notice, and that .does not go to the validity of the act, but only to its effect upon the office of City Marshal. On the twenty-first of March, 1865, twenty-one days after the passage of the one in question, another act was passed and ordered to take immediate effect, amending the sections in the charter of Detroit in regard to opening, altering and closing streets. — Paws of 1865, p. 680. The only change made by this law was a reduction of the number of jurors, to be summoned by the Marshal, in the proceedings for opening streets and so forth, from twenty-four to twelve; but as the law was passed and took effect after the police law, it is claimed that it necessarily had the effect to modify the other to the extent of continriing the office of Marshal. When the second act was passed,' the Police Board had not been organized, and the Marshal was not only an existing officer, but it was wholly uncertain when Ms office would be terminated. No intention appears in this. act to change the police law, or to do anything beyond reducing the number of jurors to be summoned, and, but for the provision in the constitution requiring an amended section to be re-published as amended, the change might have been accomplished by a simple substitution of the word twelve for twenty-fowr. The effect of the amendment is no different now from what it would have been if made in that form. The duty to summon the jurors remained as before, and so continued until by the subsequent organization of the Police Board, and by the taking of the «other preliminary steps, the office of City Marshal ceased to exist, and this duty, with others, was transferred to an officer under the police law.

For the reasons given, we are satified that the act in controversy is constitutional; that it was constitutionally ordered to take immediate effect, and that the respondent ceased to be City Marshal on the 16th day of May last. Judgment must be entered accordingly.

The other Justices concurred.


author: Cooley J.-. Martin Ch. J.,

text:
    Richard E. Cox v. Warren S. Crippen.

      Stay of execution,— attestation of by the Justice. — The undertaking of one who became surety for a stay of execution in pursuance of the statute, is in the nature of a confession of judgment, and to render the same obligatory upon tho surety, it must bo executed in the presence of the Justice, and bo witnessed by him.
    ¡The subscription by the Justice to an undertaking by a surety, in due form, to stay an execution, approving such surety as stay, is not a sufficient attestation within the meaning of §3804= of the Comp. Laws, and an undertaking so attested is void.

      Heard October 4.

      Decided October 17.
    Case made after judgment from Kalamazoo Circuit.
    The facts are sufficiently stated in the opinion.

      Thomas R. Sherwood, for plaintiff:
    1. A substantial compliance with the form given is all the-law requires. — 2 C. L., §3804.
    Exact language, or that which is mere formal, is not essential. — Howard v. People, 3 Mich., 208; Kinyon v. Fowler, 10 Mich., 18; 1 Doug., 384; 1 J. Cases, 20; 1 Cain's R., 593.
    2. The statute form is substantially complied Avith in this case. The approval of Stay by the Justice, signed in his official capacity, though informal, is a sufficient attestation.
    The date to the stay is only formal. The substantial requirements are, the promise to pay, the sum to be paid, the time of payment, signature of surety, and that of Justice. These are all ascertained without reference to date of stay. — 2 C. L., §3804; Shadbolt v. Bronson, 1 Mich., 85.
    The Justice permitted the stay to be entered upon his docket. The laiv Avill presume it' done within the proper time. — 1 Phil. Ev., 195; 1 Cow. and Hill's Notes, 485; 2 Cow. T., 403; Clark v. Crane, 5 Mich., 151; 14 John, 182; 21 Wend., 184.
    In any event, the time of putting in stay may be proved by the Justice. — 2 C. L., §3894; Hickey v. Hinsdale, 8 Mich., 267; 2 Wend., 446; 14 Wend. 568.
    3. If date of entering stay should appear to comply with the statute, the date of judgment'in this case must be taken as that of stay. The docket itself sufficiently shows that fact. — Rush v. Whitney, 4 Mich., 495.

      Stuart, Edwards & Severns, for defendant:
    1. The entry of stay of execution alloived by Comp. Laivs, §3804, is a special proceeding not after the course of the common Law. The A'alidity of such an entry is, therefore, to be determined by the strict rules governing 'that class of proceedings.

      'It is a general rule governing tlic proceedings of tribunals exercising a special jurisdiction, that they are. confined strictly to the authority given them by the Statute under which they act. This rule has been steadily and constantly applied in the reported decisions of this Court. — Beach v. Botsford, 1 Doug., 199; Wight v. Warner, 1 Doug., 384; Greenvault v. F. and M. Bank, 2 Doug., 498; Spear v. Carter, 1 Mich., 19; Shadbolt v. Bronson, 1 Mich., 85; Buckley v. Lowrey, 2 Mich., 418; Wilson v. Arnold, 5 Mich., 98; Chandler v. Nash, 5 Mich., 409; Osborn v. Robbins, 10 Mich., 277; Nelson v. Hyde, 10 Mich., 521; Platt v. Stewart, 10 Mich., 260; See, also, Howard v. People, 3 Mich., 207.
    The jurisdiction' in such cases must be affirmatively shown upon the face .of the record. — Wight v. Warner, supra; Greenvault v. F. and M. Bank, at p. 511, supra; Chandler v. Nash, p. 416, supra; Gilbert v. Columbia Turnpike Co., 3 Johns. Cas., 107; Bates v. Branch Bank of Mobile, 2 Ala., 689; Brown v. Wheeler, 3 Ala., 287; Zurcher v. Magee, 2 Ala., 253; Devall v. Taylor, 1 Cheves, 5; Snediker v. Quick, 1 Green, 306; N. J. Railroad v. Suydam, 2 Harr., 25; See, also, 3 Blackf., 230; 6 Shep., 340; 16 Vt. 246; 2 Dev., 431; 4 Dev. 305; R. M Charlt, 302; 3 Green., 57.
    Nothing in their favor can be raised by implication, nor can evidence aliunde the record be invoked to help out the averments of the record.
    .See the cases last cited, and also, Boomer v. Laine, 10 Wend., 525; Sayles v. Briggs, 4 Met., 421; Kendall v. Powers, 4. Met., 553; Wells v. Stevens, 2 Gray, 115; Dunning v. Corwin, 11 Wend., 647.
    Probably it may be stated as • a general proposition, that everything which it is the duty of the officer to enter upon his record, or docket, and which is an essential element in giving legal value to the proceeding, can never be proven by parol.

      The statute, by a clear implication, requires the entry of the stay to be witnessed. The want of an attestation where the statute require's it in a special proceeding, makes the whole void. — Beach v. Botsford, 1 Doug. 199.
    Jurisdiction in such cases is not conferred by consent— Beach v. Botsford, supra; Spear v. Carter, supra; Nelson v. Hyde, 10 Mich., 521; Dudley v. Mayhew, 3 Coms., 9; Beach v. Norton, 5 Seld., 35; McNair v. Gilbert, 3 Wend., 344.

    One is not bound if he signs as security a void contract, though he believes it to be valid. — Evans v. Huey, 1 Bay, 13.
    The rule of suretyship is strictissimi juris.

    3. Where the statute gives a new remedy, and prescribes a form by which it shall be pursued, the form must be substantially followed, or the proceedings are void. — Davidson v. Gill, 1 East., 64; Goss v. Jackson, 3 Esp., 198; Dwarris, 611; Fitch v. Commissioners of Highways, 22 Wend., 132; Commissioners v. Gains, 3 Brevard, 396.
    4. A new right or remedy created entirely by statute must be pursued strictly in accordance with the statuatory provisions. —Ham v. Steamboat Hamburg, 2 Clarke, Ia., 460; Laverty v. Chamberlain, 7 Blackf, 556; O'Brian v. The State, 12 Ind., 369; Bailey v. Bryan, 3 Jones' Law, 357.
    We conclude, therefore, that because the stay in question . is not in compliance with the statute, it is void; and secondly, that the defects cannot be supplied by parol testimony.
   Cooley J.-.

A judgment having been recovered against one Richardson, before a Justice of the Peace, in a suit commenced May 13, 1858, Crippen, the defendant in this suit, appears by the docket of the Justice, to have signed the following entry therein, immediately under the entry of the judgment:

“I acknowledge myself surety for the payment to the plaintiff, by the defendant, to pay the above judgment, with interest and cost thereon, on. or before the expiration of ten months from the 31st day of May, A. D. 1858, agreeably to law.
“Warren S. Crippen.”

Below this was the following subscription: “I approve of Warren S. Crippen as stay. B. Bennett, J. P.”

The judgment not being paid within the time limited, Cox, the owner thereof, brings this action to recover the amount from the surety. The Circuit Judge .held the undertaking of the surety to be not in accordance with the statute, and therefore void. This ruling presents the only question for our consideration.

The statute authorizing security for stay of execution, to be taken on the docket of the Justice, is the following : “ In all cases where stay of execution is allowed by law, the party entitled thereto shall have stay of execution, by his surety or sureties becoming such security on the docket of the Justice, in substantially the following form: £ I, A. B., hereby acknowledge myself surety for the payment to the plaintiff, by the defendant, of the above judgment, with interest and costs thereon, at or before the expiration of months from the commencement of said suit. Dated this day of , 18 . A. B. Witness, E. W., Justice.’” And such entry shall have the effect of a judgment; and execution may issue thereon in the manner prescribed in this chapter, and an action of assumpsit may be brought thereon.”— Comp. Laws, §3804. A previous section prescribes the period for which the stay shall continue, and requires that the sureties shall be satisfactory either to the judgment creditor or to the Justice.

'As the section above quoted, does not require that the security entered into shall follow precisely the form given, it must be held sufficient if it is in substance the same, and omits nothing which the statute makes a requisite. The form is given. as a guide simply, for the convenience of the Justice and the parties, to indicate what will be sufficient; and the statute is complied with by any undertaking which embodies the same substancej though the words employed may be different. The form given is exceedingly simple, and embraces only a writing setting forth that the person acknowledges himself surety for the payment of the judgment within the time limited by law, which is dated, signed by the surety, and witnessed by the Justice.

The question which this case presents is, whether the statute is substantially complied with where the Justice has failed to attest the security; and if not, then whether the approval of the security which appears in this case can be regarded as an attestation.

As the form given in the statute includes an attestation, there can be no doubt that, had the terms ’ employed positively required this form to be followed, a security could not be held sufficient which lacked this requisite. But as the statute only requires the adoption of the form in substance, we have only to see whether an attestation answers any substantial purpose; and if it does, we cannot hold that the statute is complied with when this is omitted, any more than if the signature of the surety, or any other substantial requisite, were wanting.

It will be seen, on examination of the statute, that when this undertaking is entered upon the docket in due form, it is somewhat in the nature of a confession, of judgment, and has the force and effect of a judgment without any other form or ceremony whatever. There is nothing in the statute whicli requires any intervention on the part of the Justice in taking the stay, or which demands that it be in his presence, or be brought to his knowledge, unless the section quoted makes it necessary for him to attest the signature. lie is not required1 to approve or accept it, if it is satisfactory to the judgment creditor; and as the docket of a Justice is a public record, at all times open for proper entries, the parties to the judgment might i enter the security in the absence, and without the knowledge, of the Justice, as properly as in his presence, if his intervention is not required. No proof that the Justice was actually present when this security was entered into can have any bearing, since, if ho was required by law to attest it, his presence could not be regarded as a legal equivalent for attestation, and if not required to do so, it was wholly immaterial whether he was present or not.

The consequences of a conclusion that the - security need not be witnessed are so serious that we cannot avoid believing the Legislature regarded that act as something more than an idle ceremony. As the entry of the security has the force and effect of a judgment, a Justice might be called upon to issue execution upon an instrument, of the genuineness of which he knew nothing, but where he would be required at his peril to take notice of the real facts, when they might be within the knowledge of a single person only, and that person unknown to him. Not only would the Justice be thus placed in peril, but a false and forged instrument Avould at once, from the simple fact of being placed upon the docket, take up'on itself the semblance of a judgment upon whicli officers would be required to act, so that a party might find his property seized in execution before he was aivare of a claim.

A statute under which such consequences could follow, or Avhich should permit judgment to be taken without the .intervention of any judicial officer, would be an anomaly. Judgments have never been allowed to be taken against parties upon their own confessions, or in any manner, except in pursuance of forms designed to afford complete protection against frauds or mistakes. Where no suit has been commenced by process, judgment can only be taken in Justice’s Court upon confession signed in the presence of the Justice. — Comp. Lems, §3655. And it has been held that the requirement - that it shall be signed in his presence includes also an attestation by him. — Beach v. Botsford, 1 Doug., (Mich.,) 199. Confessions in the higher Courts are equally well guarded; and in the case somewhat analogous to the present, where judgment on -an appeal from a Justice’s Court is aitthorized tó be entered on motion against -the surety in the appeal, (Comp. Lems, §3866,) such judgment is rendered upon a bond or recognizance properly entered into by the surety before a judicial officer. — Comp-. Latos, §3837. To hold, therefore, that the attestation is unnecessary here, and that the Legislature regarded it as an immaterial part of the form given, we must first • conclude that they have designed to make this case an exception from the general rule of protection, or else that they have imperatively required a witnessing by the Justice, without necessity in other cases where the reasons were the same which exist here, and none other. We cannot come to this conclusion. The reasons for the .requirement are •strong and obvious; and in making the witnessing a part of the form, we are satisfied the Legislature designed to 'throw about the surety the ordinary-safeguards established for similar cases. .

It remains to be seen whether the approval of the ■security by the Justice, in this case, can be considered, a sufficient attestation within the statute. We do not, •consider any particular form of attestation as essential; -.and if it clearly appeared from the docket, over the* signature of the Justice, that the security was signed in his presence, we should regard it as sufficient. But nothing of the kind appeal’s. The Justice simply approves “ of Warren S. Crippen as stay.” When he made this entry, does not appear from the docket. It may have been at the time the security was signed, or it may have been days or weeks afterwards, when the fact that security was entered on his docket first came to his knowledge. There is no implication, from the entry, that the Justice was present when the stay was signed, or had any • personal knowledge concerning it. And by the statute the approval of the security is clearly a distinct act from the attestation.- — -See Comp, laws, §3802.

We are, therefore, of the opinion that the security in this case was not in substantial compliance with the statute, and was void. The judgment of the Circuit Court must be affirmed, with costs.

Campbell and Christiancy JJ. concurred.

Martin Ch. J.,

dissenting:

I do1 not 'concur with my brethren in this case. I cannot understand that a form prescribed to be substantially followed requires the performance of an act not demanded by express language. I do not think that any substantial requisition of a witness to make surety-ship valid can be created in this manner.