author: Cooley J. Campbell J. Christiancy J.

text:
    Aaron Lang and others v. The People.

      Constitutional Law. Criminal recognizance. Whether the statute of 1861, p. 136, permitting the entering up of judgment summarily, and without suit or notice, upon a criminal recognizance, two days after forfeiture is entered of record, unless cause to the contrary he shown, is constitutional, guere? the Court being equally divided.

      Heard November 7th, 1865.

      Decided July 11th.

    Error to St. Clair Circuit.
    The facts are stated in the opinion.

      Maynard & Meddaugh, and J. S. Crettin, for plaintiff in error.
    1. The statute under and by virtue of which judgment was rendered, clearly contemplates the service of notice of some kind upon the persons entering into and executing such recognizance, that the default has been entered, &c., so that they may have an opportunity to appear and show cause why judgment should not be entered against them; and that it was the duty of the Prosecuting Attorney to have given defendants below notice of the proceedings before judgment was rendered. — Sess. L. 1861, p. 136.
    No notice or process of any kind was served on defendants in this case. — Scire Facias, 4 Bouv. 84, L. 1863.
    2. If such statute does not contemplate or provide for the service of some such notice, or of process of some kind, before the rendering of judgment, so as to give the defendants a day in court, it is unconstitutional and void, because it deprives a man of his property without due process of law.— 5 Mich. 251; 11 Id. 113.

      A. Williams, Attorney General, for the People.
    1. The plaintiff in error was not entitled to the service of any process or notice informing him of the time and place when and where the people would move for such judgment, or that they had any intention of ever, any where, doing so. —Sess. L. 1861, 136.
    2. The act does not contemplate the service of anyqirocess or notice; for if it had, it is reasonable to say, that it would have prescribed in substance, by whom it should be issued or signed, and the time and manner of the service of the same.
    3. Giving the above mentioned act the construction contended for by us, vests it with no extraordinary character. We have other statutes, some of which have been held to be constitutional, and others not questioned, which confer powers equally large. See the following, to wit :—Comp. L. § 822; 5 Mich. 251; Comp. L. §§ 4502-5; 4 Mich. 316; Comp. L. § 3866.
    4. The said default having been rendered by the court, the true practice was to move that it be set aside or vacated, upon an application made to the court, based upon a proper and sufficient showing. The force and effect given to it by said act, No. 106, while it remained an order or judgment of the court, could be avoided in no other way. — 10 Mich. 113.
    5. Nor is said act, No. 106, in conflict with that part of Art. 5, of the amendment to the Constitution of the United States, which provides that “ no person shall * * * be deprived of life, liberty, or property without due process of law;” for this article was designed only as a limitation or restraint upon Federal power and authority. — 5 How. 434; 7 Pet. 243.
    6. Nor does said act, 106, at all conflict with so much of sec. 32, Art. 6, of our State Constitution as provides that “no person shall * * * be deprived of life, liberty, or property without due process of law.” This constitutional provision has the same meaning as the phrase, “ the law of the land,” and was desig'ned to prevent special legislation which might operate unjustly and unequally upon individuals against their will, and not legislation general in its operation, and that affects the rights of all alike. The act in question is of the latter class, and was not intended to operate upon the rights of the plaintiff in error, or any other individual, as such. This, of itself, is sufficient to take it from under this part of our State Constitution. — 5 Mich. 251; 19 Wend. 659, 675.
    7. While Congress possesses only such powers as have been expressly granted to it, or are necessary to make effectual such powers, our State Legislature possesses all legislative power, not prohibited by the express words of the Federal or State Constitution, or by some necessary implication of one of them. There is no exjDress provision in either of the above mentioned constitutions, against the passage of the act in question; and we submit that there is no necessary implication of any section or clause of one or the other of them, with which the above mentioned act, or any of its provisions, at all conflicts. After all, the real question, as it regards the validity of said act, is one of power on the part of the Legislature, and into which expediency does not at all enter. — 5 Mich. 256-9.
   Cooley J.

The judgment in this case recites that the said Aaron Lang, being under recognizance in the sum of three thousand dollars to appear and answer to an information to be filed for uttering counterfeit money as true, with Moses Lang and John S. Crellin as sureties, and having failed to perform the condition of such recognizance, which failure has been entered of record by order of the Court; and more than two days having elapsed since such entry, and no good cause to the contrary appearing, it is thereupon ordered that judgment be entered, &c. The only assignment of error is, that the judgment was rendered “ upon a certain recognizance purporting to be signed and entered into by the plaintiffs in error, without giving notice to the plaintiffs in error or either of them, by the service of process or otherwise, that any ¡Droceedings were to be had against them or either of them upon said recognizance, whereby the plaintiffs in error were deprived of their right to contest the question of their liability upon said recognizance.” Another error was suggested on the argument, but as it was not specially assigned, we must consider it, under our rules, as waived. — Sup. Court Rule, 12; Webster v. Fisk, 9 Mich. 250.

The questions which arise in the case, are, First, whether the statute authorizes judgment to be thus entered up, upon default being entered, without notice to the conusors; and if so, then, Second, whether such statute is constitutional. And we may be aided in coming to a conclusion upon these questions, by considering what was the nature of a recognizance, and what the effect of forfeiture at the common law.

A recognizance is said to be an obligation of record, with condition to be void on performance of some act specified. It is entered into either before some court of record, or before a magistrate out of court, and afterwards enrolled in a court of record; but in the latter case it is the acknowledgment that gives the recognizance its force as a record, and the enrolment is for safe custody and notifying it to others. — 2 Tidd's Pr. 1083-4; 2 Wms. Saund. 8, i. (5) and cases cited. When forfeiture is declared and duly entered of record, the liability of the conusor is regarded as fixed, though there were always modes in which matters of excuse or of equitable consideration might be afterwards presented, depending somewhat on the nature of the case. If the 'condition was the performance of some act in court — as to appear and answer, or to give evidence, or prosecute' — the breach is to be adjudged by the court and entered of record when it occurs; while a recognizance to keep the peace would stand upon a somewhat different footing, and a forfeiture could only be declared after trial, and upon proof of facts of which the courts could not judicially take notice. — Bac. Abr. Scire Facias, 2; 2 Tidd Pr. 1093; 2 Carr. & P. 10, and note; Queen v. Justices, &c., 7 A. & E. 583. A recognizance binding a party to appear in court, is said to be forfeited if he fail to appear, be the cause of his absence what it may. — Regina v. Ridpath, 10 Mod. 154; Rex v. Hankins, 1 McClel. & Y. 27; and in England it then became liable to be estreated; that is, taken out from among the other records and sent up to the Exchequer, which rendered the conusor an absolute debtor to the crown for the sum or penalty therein mentioned.' — 3 Pet. Abr. Bail IX, 1; 14 Id. Recognizance, IX, note; Pet. on Bail, 536; 2 Chit. Gen. Pr. 296.

The principal question here is, as to the proper mode of enforcing a forfeited recognizance. The regular mode in England is said to be an extent in chief; though a scire facias is sometimes issued if it be doubtful whether the recognizance is forfeited. — 2 Tidd’s Pr. 1091. The process by extent does not exist in this country, and independent of statutory provisions prescribing a different course, the proceeding by scire facias would be the proper one. — Pinckard v. People, 2 Ill. 187; Alley v. People, 6 Id. 109; Sans v. People, 8 Id. 327; Besimer v. People, 15 Id. 439; Choate v. People, 19 Id. 63 ; Weese v. People, 19 Id. 643; Graham v. State, 7 Blackf. 313; Hall v. State, 15 Ala. 431. But it has been held that an action of debt might also be brought. — 5 Dane Abr. Ch. 150, Art. 4; People v. Van Eps, 4 Wend. 390. In either proceeding the recognizance, being a record, would import absolute verity, and would not be open to contradiction by parol evidence. — People v. Kane, 4 Denio, 543. The record of the forfeiture, I apprehend, would stand upon the same footing. But evidence might be received to show the recognizance forged; for if forged it was no record. — Patton v. Miller, 13 Sergt. & Rawle, 254; Elliott v. Green, 10 Mich. 113 ; and the question of the indentity of the defendant with the conusor would always be open. The defendant might also plead any matter of discharge subsequent to the forfeiture; and it has been held a good bar to the action that performance by the principal was prevented by the act of God, — People v. Manning, 8 Cow. 297; or by his imprisonment elsewhere. — People v. Bartlett, 3 Hill, 570.

But it is obvious that matters of excuse or discharge can only be presented by plea, when enforcement is sought by suit; and if suit was always essential, there could be no necessity for presenting such matters in any other mode. But the Court of Exchequer seems to have had original jurisdiction to relieve on motion; and by statute — 4 Geo. III. c. 10 — obtaining relief in that court by petition was made more easy and less expensive. — 14 Pet. Abr. Recognizance, IX, note; Highmore on Bail, 203; Note to 8 Exch. 822. A form of petition for this purpose, in a case where the indictment against the party bound to appear was ignored, will be found in Crown Cir. Companion, 1 Am. ed. (1816) p. 24; see also 2 Chit. Gen. Pr. 397. The subsequent statute of 3 Geo. IV, c. 46, has been held to take this power away from the Exchequer in cases of recognizances, forfeited at General or Quarter Sessions, but it authorized those courts to inquire into the circumstances of any case, and at their discretion to order the discharge of the whole of the forfeited recognizance, or any part thereof. — See Rex v. Hankins, 1 McClel. & Y. 27. The still later statute of 7 Geo. IV, c. 64, § 31, in view of the hardships frequently resulting from the indiscriminate estreating of recognizances, imposed an important restraint upon that process by requiring a list of the forfeitures to be laid before a judge of the court where the parties were bound to appear, who was empowered to make such order touching the estreating or putting in pi-ocess of the forfeited recognizance, as to him should seem just. —14 Pet. Air. Recognizance, IX, note. There was thus a consideration of the case by the judge before estreat, which, however, did not preclude the Court of Exchequer from granting relief afterwards on the party’s petition. The forfeited recognizances mentioned in statute 3 Geo. IV, c. 46, § 4, were collected by writ of distringas and capias, os fieri facias and capias, unless relief was obtained from the court in the manner therein pointed out. — 14 Pet. Abr. Recognizance, IX, note. These statutes are only important here as they tend to show the understanding as to the legal effect of forfeiture.

In the revision of our statutes in 1846, it was deemed proper, for some reason, to provide specially the mode of enforcing the penalty of a criminal recognizance, by action of debt or assumpsit. — R. S. Ch. 128, § 30; Comp. L. § 5140. The object of this provision was perhaps to substitute the more familiar forms of action for the proceeding by scire facias / though, as we have already seen, an action of debt might have been brought without any such statutory provision.

It was found, however, that leaving the forfeitures to be enforced by suit was not a very effectual way of securing the purposes for which recognizances are taken; and that especially in those counties where the business in the prosecuting attorney’s office was large, suits sometimes failed to be brought after forfeiture, and sureties in criminal cases relied somewhat upon negligence in this regard for their immunity. It was accordingly provided by the act of 1861 (p. 136), that after the forfeiture shall have been duly entered of record, “ it shall be lawful for the court, after two days thereafter, unless good cause to the contrary be shown, to enter a judgment thereon in debt, and to order an execution to issue thereon,” “ for the full amount or sum specified in the said recognizance.” I see no reason to doubt that this statute is designed to authorize the entiy of judgment upon the recognizance, without the service of any process, or notice, if the parties to it fail to come in and excuse the default within the two days allowed by the statute for that purpose. The sole remaining question is that of constitutional power to pass this statute.

I have not been able to satisfy myself that the statute violates any provision of the constitution. The recognizance being entered into in view of the statute, the conusors must be taken to assent to judgment being entered in the mode the statute provides; and the same effect is to be given to their obligation, as if a stipulation for such judgment were inserted in it.- — Chappee v. Thomas, 5 Mich. 53. It cannot be said that the party is condemned unheard when he has stipulated that the proceeding may be taken against him, any more than where judgment is entered up on warrant of attorney. Moreover the recognizance is itself a notification to the parties to be present at the time appointed, and their express undertaking is that the penalty may be levied of their property if they fail to present the principal at that time. It is this undertaking which gives the court jurisdiction to adjudge the forfeiture; and the subsequent proceedings are only for the purpose of obtaining execution of a debt already fixed.

All the direct authority there is upon the subject is in favor of the constitutional power. The validity of a similar provision seems to have been assumed in People v. Van Eps, 4 Wend. 390, and was directly affirmed Gildersleeve v. People, 10 Barb. 35. See also People v. Lott, 21 Ld. 130. There is no case opposed to these, and they do not appear to me to be unsound.

There are doubtless objections to leaving matters of excuse or discharge to be presented by motion on affidavits; but they are objections of the force of which I think the legislative department must judge. The questions of fact are however the same, or similar in character, to those which are presented by motion in other cases where a party has incurred, or is supposed to have incurred, an obligation of record. The genuineness of a cognovit on which judgment has been entered, or the discharge of the demand by payment or otherwise after its date, or the satisfaction of judgment in any other case, may be a question proper to be passed upon by jury, but it must also be sometimes disposed of on summary application. It could hardly be claimed that a judgment on cognovit was erroneous because the defendant was not allowed to put in issue before a jury the question of payment between its date and the rendition of judgment, though the authority to enter up judgment was expressly, or by implication, subject to the condition of non-payment.

I am unable to distinguish this case in principle from that of Chappee v. Thomas. It is true that in that case the undertaking of the surety was, in effect, to abide the judgment of the court against his principal; but it is obvious that he might still have legal defenses which would not be open to the principal, and which he must still have the opportunity to make in some form. The ground of that decision was not that the surety was absolutely bound by a finding against his principal, but that, by his contract he had consented to judgment being taken in that form.

The consequence is, that matters of legal defense which he might make before a jury, if the bond were sued, are now left to be presented by motion, or by some other proceeding, to vacate the judgment. -In Lewis v. Garrett's Administrators, 6 Miss. 434, the question was elaborately argued whether a statute authorizing judgment to be entered up against the sureties in a sheriff’s bond, without suit, where the sheriff’s return showed a liability, was constitutional; and the court sustained it on the same ground embraced in the decision in Chappee v. Thomas. Similar statutes are referred to in that decision, with the cases sustaining their validity. And it was held not to be an objection that such a law deprived the party of his right to a jury trial, inasmuch as by his contract he had assented to waive it. The case of Pratt v. Donovan, 10 Wis. 378, is also in point. The statute brought under review in that case authorized. judgment to be taken on motion against the sureties in a replevin bond, jointly with the principal, without the service of either process or notice upon the sureties. The court held such a judgment valid on the ground that by entering into the bond the sureties had assented to it, and waived their right to a trial in the ordinary mode. The case of Gildersleeve v. The People is expressly referred to with approval in this decision.

If any importance can be given to the fact that in the case before us the People are the party plaintiff, and that against them some common law remedy could not be taken which might be open in other cases, I do not see how any principle can be affected thereby. The People, in their collective capacity, might have occasion to bring replevin, or enforce a sheriff’s bond, or take judgment by cognovit; and there can be no question of their right to take the ordinary proceeding. No one, I presume, will contend that they would be deprived of this right, on the ground solely that all the same remedies might not be open to the defendant as if he were sued by a private individual.

I am of opinion that the judgment of the Circuit Court was correct, and should be affirmed.

Martin Ch. J. concurred.

Campbell J.

Judgment was rendered in the St. Clair Circuit Court against plaintiffs in error upon a criminal recognizance. No notice of any kind was given of the motion for 'judgment, which was ex parte, and made in supposed conformity to the Statute of 1861, p. 136.

The record is otherwise defective; but, as this is the only error assigned, there is no occasion to consider any other point. The question to be disposed of is whether such a judgment can be sustained.

It is claimed, on behalf of the people, that a recognizance, when filed, becomes record evidence of a liability, and that upon forfeiture declared this becomes complete without further ceremony. The law is plain that a recognizance becomes a record obligation; but this is simply because the party acknowledges it in the solemn manner necessary to give it judicial sanction. But whether a conditional liability acknowledged by a party can become absolute by proceedings which he does not acknowledge, and has no opportunity of being heard upon, is a very different question, by no means dependent upon the character of the original obligation. A man may be estopped in many ways from disputing a conditional obligation, but whether the condition has been broken or not is a very different thing, upon which, in ordinary cases, he certainly is to be heard. And if such is not the case concerning criminal recognizances, it must be owing to some peculiar rule which distinguishes them from common debts.

If a recognizance bound the maker at all hazards, and without regard to circumstances, to resjjond if the person charged should fail to appear in court at the time appointed, then there could be no great difficulty in maintaining the completed liability upon any such failure. But such is not the character of the undertaking. There are many cases in which, by compulsion of law, or by unavoidable accident, or by the action of responsible officers or parties, the person charged is lawfully prevented or excused from such appearance. And it has never been supposed by any one, and certainly no one has produced any decision tending to support the notion, that a failure to appear always absolutely forfeits the recognizance. Death, or lawful imprisonment, or absence under compulsion of law, are familiar instances of valid reasons for non-appearance. Nor has the law in all cases required the appearance to be impossible. For in the early statutes on this subject it was distinctly provided that, upon all debts and obligations to the crown, any defense based upon “ law, reason, or good conscience,” was admissible; and these words received a large and not a limited construction.—Tomlyn's Law Dic. “King 6; 7 Coke's R. 19 b, 20 a; Tidd's Pr. 1077.

A record obligation to the king was in most cases enforced in a somewhat different manner from the claims of individuals. By certain early statutes, debts created in the form of recognizances were enforced by peculiar proceedings in the Exchequer, sometimes by scire facias, and sometimes by extendi facias. There is some reason to doubt whether criminal recognizances came within the same rule with those which were merely money obligations ; and I have been able to find no case in the English books which classed them together. But the matter is not very important, for there never was any process to collect -any royal debt, which condemned the debtor without giving him a chance to be heard in his defense. Some confusion has arisen from the fact that an extent is a species of execution, and that sometimes an immediate extent might issue before or without a scire facias. The only case in which an immediate extent was permitted was where there was an affidavit filed, showing a positive indebtedness, and an immediate danger to the debt, in which case a fiat was granted by a Baron of the Exchequer.

This affidavit was required to comply strictly with the law, and to show insolvency. — King v. Marsh, 13 Price, 826; Rex v. Pearson, 3 Price, 288, 292. It is held in this last case that the Crown has no right to elect between scire facias and immediate extent, but must make out a clear case of insolvency. It is also held, contrary to some loose dicta formerly received, that the whole proceedings connected with the collection of crown debts are at law, and not in equity; and that the parties’ rights are legal and not subject to discretion. — Gases above, and 11 Price, 643, cited in note to Tidd's Pr. p. 1048. It is also laid down that an extent will not lie if there is any doubt about the obligation being clearly forfeited.— Tidd’s Pr. 1045, 1091. Nor does it lie against sureties.— Tidd's Pr. 1046, 1091. And where the obligation was conditioned to collateral purposes, and not for a mere debt, it seems an extent was not granted. — Ib. (And see also King v. Lamb, 13 Price, 649.)

But the extent, even if granted in such cases, did not cut off the party from any defense. It was rather analogous to proceedings in attachment, where upon a proper showing .there may be .a preliminary seizure of property, to answer any final adjudication, but where the merits are in no way prejudiced by the preliminary steps. The party charged had a right to introduce any defense of law or of fact, and might interpose objections in the nature of a demurrer, or might plead, and traverse or avoid the facts on which the recovery depended. In short, he could use any defense in these proceedings, as fully and completely as on scire facias.—Tidd's Pr. 1077. The cause might be tried either at nisi prius or at bar. — Id. 1080. And if the defendant prevailed he was entitled to an amoveas manus, whereby the seizure was remitted.- — Id. 1081.

But, as already suggested, it is by no means clear that criminal recognizances were under any circumstances enforced without scire facias. There are very few authorities on the subject, but there seems to have been a general recognition of the illegality of proceeding without a regular suit in any case. It is said, in Rolle's Abr. 900, that the Sessions cannot proceed against recognizors for non-appearance or for breach of the peace, but that the recognizance should be removed into one of the courts at Westminster Hall, who should proceed by scire facias upon it, and not by indictment, for the reason that the party might have some good defense that he should be allowed to plead. This doctrine is recognized and approved by the text writers generally. — Bacon's Abr. “Scire Facias," C, 2; Hawk. P. C. Book 1, ch. 60, § 18; Tomlyn's Law Dic. “Surety of the Peace," Scire Facias,” 3; 4 Inst. 181. The practice is described in a note to Rex. v. Wiblin, 2 C. & P. 10. And in the case of The Queen v. The Justices of the West Riding of Yorkshire, 7 Ad. & El. 583, the court refer very plainly to the illegality of attempting to fix a party’s liability without a trial. See also note to Rex v. Hankins, McC. & Y. 26-31; In re White, 1 New Sess. ca. 9; cited, 5 Harr. Dig. 1514. In many eases the recognizances might be estreated into the Court of Chancery or King’s Bench, as well as into the Exchequer, and could not then be carried into the Exchequer until after judgment on scire facias, and the return of a fi. fa. or ca. sa. unsatisfied. — 2 C. & P. 10; Hawk. P. C. B, 1, ch. 60, § 18. It hardly requires the citation of authorities to show that a scire facias is an action, and subject to the same rules with other actions, concerning defenses. — Com. Dig. Plead. 3 L. 3, 10; State v. Harlow, 26 Me. 74.

The condition of a recognizance is not broken by the entry of a default, but by the facts which, if not excused, will justify such entry. — Dillingham v. U. S. 2 Wash. 422; State v. Robb, 16 Ind. 413. And, inasmuch as the liability arises only upon an unexeused breach of a condition, it would be contrary to every principle of law to estop a party, by an ex parte finding', from showing that he is excused. It is impossible that a person can have a legal defense which he has no legal means of asserting. The law has always recognized many things as legally discharging a person from performing conditions. ■ Thus the obstruction of the obligee is held sufficient, and the instance given is a recognizance to the King for appearance, where the party is subsequently, and before the time for appearance, imprisoned by the King’s authority.— Com. Dig. “Condition," L. 6. So by the act of God, or the act of the law.— Com. Dig. “ Condition," L. 12, 13. And the American cases recognize the same doctrine. —People v. Manning, 8 Cow. 297; People v. Bartlett, 3 Hill, 570; People v. Clary, 17 Wend. 374.

The genuineness of the recognizance, or the identity of the obligor, must also be open to inquiry.— Viner's Abr. “Recognizance," E.; Brown's Abr. "Recognizance," 6; Elliott v. Green, 10 Mich. 113. And this can best be done by traverse. —Ex parte Stowell, cited 5 Harr. Dig. 1514. It would be a very anomalous practice — to say the least — to try forgery or identity, so as to absolutely fix or discharge a legal liability, on affidavits, unless a party saw fit to accept such a test. And to fix a liability, without any notice at all, has already been decided by this Court to be beyond the power of any tribunal. — Montgomery v. Henry, 10 Mich. 19. Except in the cases of Gildersleeve v. People, 10 Barb. 35, and People v. Lott, 21 Id 130, no authorities have been discovered giving any credit to the notion that the liability of an obligor can be fixed on a recognizance without a hearing. The case of Chappee v. Thomas, 5 Mich. 53, is in no sense ojoposed to this view. In that case the recognizance was a preliminary to the jurisdiction of the court to try the appeal, and the liability was not conditional upon any matter in pais, but absolute to respond to the judgment of the Circuit Court. Such an undertaking could not be excused by any misadventure which would not destroy the judgment itself, and the act of the court was the very thing contemplated. Being absolute, it was, as there explained, equivalent to a warrant of attorney to the Circuit Court to confess judgment.

The cases, with the exception of those in Barbour’s Beports, above referred to, agree that nothing short of an action of some kind can fix the liability of the obligor. — Johnstons v. State, 3 Ark. 524; Pinckard v. People, 2 Ill. 187; Sans v. People, 8 Ill. 327; Graham v. State, 7 Blackf. 313; State v. Harlow, 26 Me. 74; Schneider v. Commonwealth, 3 Metc. Ky. 409; State v. Glass, 9 Iowa, 325. It was held in State v. Hopkins, 30 Ho. 404, affirming a former decision, that the validity of a liability under recognizance could not be properly tried at all until scire facias had been brought upon it, and an attempt thus made to enforce it. And the same doctrine is laid, down in Regina v. Sydserff, 2 Dowl. & L. 564; (5 Harr. Dig. 1514).

If the party has no right to be heard before judgment, then it cannot be said that he has any way whatever of enforcing his legal defense. As between private parties, possibly, an audita querela would lie, but that, (being in itself a recognized form of action, upon which process issues as in other cases to bring in the defendant,) cannot lie against the government— Viner’s Abr. “Audita Querela,” 1; Fitzh. N. B. 102, et seq.; Brooks v. Hunt, 17 Johns. 484. And this may be the reason why in all cases of debts of the crown the traverses and other forms of defense were allowed' upon extents, on recognizances and other obligations, where among private parties the remedy by audita querela was most frequent. For the old authorities furnish more instances of a resort to it upon statutes and recognizances, than in any other cases. And although the practice on audita querela has become superseded by motion, and practically obsolete for most purposes, yet where the parties dispute the facts on which relief is sought there can be no question of the right to have a trial by jury, and the benefit of proceedings in error, where the matter is one of legal cognizance, and not discretionary.- — - Nathan v. Giles, 5 Taunt. 558; Lister v. Mundell, 1 B. & P. 427; Symons v. Blake, 2 C. M. & R. 416; Baker v. Ridgway, 2 Bing. 41; Hanson v. Blakey, 4 Bing. 493 ; Hewes v. Mott, 6 Taunt. 329; Graham's Pr. 450.

It has been held quite uniformly that legal proceedings which do not provide for due notice to the party charged, and which do not give him a chance to have his rights tested in a legal way, are not due process of law, and are in violation of constitutional right. Such has frequently been held by this Court. — Hibbard v. People, 4 Mich. 126; Parsons v. Russell, 11 Id. 113; Ames v. Port Huron Log Driving & Booming Co. 11 Id. 139; Price v. Hopkin, 13 Id. 318; Groesbeck v. Seeley, 13 Id. 329.

For these reasons the judgment in question was unauthorized and could not be made valid by legislation. A neglect on the part of prosecuting attorneys to do their duty, under laws affording ample remedies to the State, cannot authorize the introduction of new remedies whereby private rights are unlawfully endangered.

Christiancy J.

So far as relates to the trial of the question of default for non-appearance, I see no objection to the statute; that is a question depending upon the record, and to be tried by the Court, and not by a jury.

And if the cognizors never appeared and were never notified to appear in court prior to the judgment, I am inclined to think the trial of the question of identity could hardly be urged against the validity of the statute; since that question must in such case, I think, be looked upon as undetermined by the judgment, and still open to the defendants whenever an attempt should be made to enforce the judgment against them by execution.

The record in this cause does not show whether any of the cognizors aj>peared or attempted to show cause or not; nor does it show any notice to them of the proceedings to take judgment. Independent of this statute, the recognizance in a criminal case has always been understood to impose upon the cognizors the duty not only of securing the appearance of the principal to answer, but that he should abide the order, and not depart without the leave of the court. By this statute, if they have failed to secure the appearance of the principal, they are required, at their own peril, to take notice of the entry of the default for non-appearance, (to which there can be no constitutional objection), and if they have any matter of defense or excuse to allege against a judgment, for the amount of the recognizance, they are required of their own motion, within two days after the entry, to present the same to the court; and failing to do this, or, (as I understand the statute,) failing to show sufficient cause, the court is authorized to enter a judgment against them, in debt, for the amount.

Now if, upon appearing within the time to show cause, the statute had made provision for a regular trial of the questions which might be involved, securing substantially the same rights as they would have been entitled to in an action brought upon the recognizance, no objection could have been made to the validity of the statute.

And if this statute could be construed as authorizing the judgment to be entered only in cases where no motion or attempt is made to show any cause within the prescribed time, I should agree with my brother Cooley, that the recognizance, having been entered into under this statute, should be understood as incorporating its terms, and therefore as an express authority, after the time agreed upon had exjDired, to enter the judgment in this manner in all such cases, within the principle recognized in Chappee v. Thomas, 5 Mich. 33. But the statute will not admit of this construction. The language is “unless good cause to the contrary be shown”; clearly showing the intent to make the statute apply equally to cases where no attempt is made to show cause, and to those in-which the attempt is made, but the cause shown shall be deemed by the court insufficient. And the entry in the present case is in accordance with this view of the statute, and would be equally true, whether no attempt had been made to show cause, or the attempt had been made and the cause shown had been adjudged insufficient; — “No good cause to the contrary aj>pearing to the Court,” &e.

The statute, therefore, authorizes the court to try not only the truth of the facts offered in excuse or defense, but their sufficiency as a legal defense to the forfeiture. And as no mode is provided, nor any allusion made to any issue or form of trial, and it clearly appears by comparing this statute with that formerly in force, that no regular trial, as of an action, is contemplated, the inference is irresistible that the intention' of this statute was to authorize the courts to try these questions, both of fact and law, in a summary manner, upon motion or petition, and upon affidavits. Now, while there may be many matters of excuse in such cases which would appeal only to the discretion of the judge — as to which this mode of proceeding would be unobjectionable, — yet, as has been sufficiently shown by my brother Campbell, many other facts may exist, and may be shown, which in themselves constitute a full and complete legal defense against a forfeiture for non-appearance.

Many of these defenses consist of matters in pais, in no way determinable by inspection of the record. Of all such matters of legal defense, I think the cognizors must be held to have a constitutional right to a trial, substantially as in ordinary actions at law, and the right to demand a jury; unless by entering into the recognizance under this statute they can properly be held to have waived these rights, and consented to the mode of trial provided by the statute. Upon this question I have felt much doubt, but have finally arrived at the conclusion, that as to all defenses which admit the voluntary execution or acknowledgment of the recognizance, it is competent for the parties thus to waive their rights, and to consent to the mode of trial provided by the statute; and that by voluntarily executing the recognizance under this statute, they must be held to have done so, and that the statute as to these defenses is therefore valid.

But as to those defenses which involve a denial of the voluntary execution or acknowledgment of the recognizance by the defendants — such as forgery, non-identity, or its procurement by duress — there is no possible ground for the application of the doctrine of waiver; and as to these the cognizors are entitled to the ordinary and constitutional modes of trial. And, notwithstanding some respectable authorities to the contrary, I have been unable to discover any satisfactory principle upon which the trial of the latter class of defenses, in the summary mode authorized by the statute, can be held to satisfy the constitutional requisition of “ due process of law,” or that which secures the right of a trial by jury.

When the recognizance is taken in open court and entered upon record, no signature being necessary, the defense of forgery could not be set up. But from the record in the present case it would appear that the recognizance in question must have been taken before a magistrate and returned into court, in which case it is required to be signed; and the defense of forgery is, therefore, I think, open to the defendants, as well as that of identity or duress. It may with truth be said that questions of this nature might arise in cases like that of Chappee v. Thomas, and cases of a like character; but in such cases the judgment is not absolutely final and conclusive, upon questions of this kind. The defendants in such cases, between individuals, would be entitled to the benefit of such defenses by resorting to the common law remedy by audita querela. But, as shown by my brother Campbell, this is a remedy which cannot be resorted to against the State. ■

As we are not authorized to say such defenses did not exist in the present case, when the defendants below had no right or opportunity secured for presenting them, and when the record would have been the same had they been presented and overruled, I must concur with my brother Campbell, that, so far as the statute in question applies to the present case, it is in violation of the Constitution, and that the judgment is therefore erroneous and should be reversed.

The court being thus equally divided, the judgment below was affirmed.


source: Caselaw Access Project

author: Campbell J. Martin Ch. J.

license: Public Domain

text:
    George W. Lewis v. Theodore J. Campau and others.
    Decrees, jfinal and int&i'locutonj. Appeal. Receiver. Where a bill is filed in aid of proceedings to remove administrators, and to have a Receiver take charge of the assets until the legal action is disposed of, an order appointing such Receiver for the purposes set out in the bill, is in effect a final decree, although purporting to be interlocutory, and is therefore appealable.
    Although it is improper to dispose of the merits in parcels, or to do so at all until the cause is ripe for hearing, yet if this is done, the party aggrieved cannot by such irregular action be debarred of his right to apppal from any order which disposes finally of any part of the merits. This would enable his adversary to profit by his own wrong.

      Bill. Inconsistent pi'ayer. The insertion of a prayer for the removal of the administrators, being inconsistent with the rest of the bill, which is in aid of proceedings at law to remove them, cannot change the ancillary character of the suit.

      Heard July 6th, 7th.

      Decided July 11th.
    Appeal from Wayne Circuit, in Chancery.
    The complainant filed his bill in the Court bélow, praying for the appointment of a Receiver, and for other substantial relief. After answer, and before the cause was at issue by replication, a motion was made by the complainant for the appointment of a Receiver, according to the prayer of the bill; and the Court made an order accordingly. From this order an appeal was taken to this Court.

      The particular character of the bill, and other facts pertinent to a full understanding of the questions involved, are stated in the opinion of the Court.

      C. I. Walker and A. B. Maynard, for complainant.
    The cause was not at issue when the order was made. It was interlocutory, and could not be appealed from. — 18 How. U. S. 201; 19 Id. 283; 2 Doug.(Mich.) 288; 5 Mich. 460; 10 Id. 398, 425 ; 12 Id. 22, 311.
    G. V. N. Lothrop, for defendants.
   Campbell J.

This is a motion to dismiss an appeal, on the ground that the order appealed from is neither a “ decree” nor a “final order” within the statute regulating Chancery appeals.

The bill was filed by Lewis, setting forth that he had applied for the removal of such of the defendants as are administrators of the estate of Joseph Campau, deceased, and that from the decree of the Probate Court, refusing such removal, he had appealed to the Wayne Circuit Court, where this bill was presented. He avers also the alleged facts of misconduct in the management of the estate, and improper charges in the accounts, which are also under litigation, and prays for a Receiver to take entire charge of the property in the hands of the administrators, until the question of their removal is settled.

The bill is a bill in aid of the appeal proceedings, and the relief asked is entirely ancillary, so far as the appointment of a Receiver is concerned. There is no fund in the hands of the Court, as a Court of Chancery, to be administered in this cause, to which the appointment of a Receiver might be incidental; and there is no prayer in the bill asking such an appointment, except as the relief desired on the merits.

Within a few days after the- bill was filed, and before any answer was put in, and before the subpcena was returnable, notice was given of a motion for a Receiver, in precise accordance with the prayer of the bill. Upon this motion an order was made appointing such Receiver to act until further order, and enjoining the administrators from further meddling with the estate; reserving the question of costs and further directions until the final hearing. This is the order appealed from.

It is claimed by complainant that this is a purely interlocutory order, and therefore not open to appeal.

The statute restricts the right of appeal to decrees and final orders, and the settled meaning of the term “ decree,” in this sense, is determined to embrace only such decrees as are not interlocutory. The difference between interlocutory and final decrees is this, that in the former some further steps are required to be taken to enable the Court to adjudicate and settle the rights of the parties, while, under a final decree, the party obtains his rights without any further adjudication on the merits, either by the direct operation of the decree itself, or by means of proceedings of a ministerial character in execution of it. But it is not necessary that a decree should dispose of all the merits. Whenever the Court finally adjudicates any part of them,- — although the practice of making separate decrees without necessity is very reprehensible, — yet the partial decree is neither void nor interlocutory.

Nor can it make any difference at what stage of the causo such a decree is made. It is contrary to justice and sound practice to condemn a defendant before he is heard, but if his rights are passed upon and affected prematurely, he is not to be debarred from his appeal because the decree was unauthorized. This would enable his adversary to take advantage of his own wrong.

In the present case the question raised by the bill, and which the defendants were entitled to have decided upon the merits by legal proof, was, whether by their conduct they had rendered it necessary, for the safety of the parties concerned, to have the estate in their hands taken from the legal custodians, and held until it should be determined whether they should be removed from office, in a proceeding on the law side of the Court; for, although there is a prayer in this bill for their removal, complainant shows that he himself is urging those proceedings, with which this prayer is inconsistent. This order for a Receiver decides the whole merits, and takes away the property from its legal owners, without waiting the developments of the pleadings and proofs. The mere fact that the Receiver is to act only until further orders does not change its character, for such must always be the legal position of a Receiver, who is but a representative of the Court. The point in controversy was, whether the Court should take charge of the fund at all.

We think the order, although professedly interlocutory, is in fact a decree, and that the appeal is properly brought. The motion to dismiss must be denied, with $10 costs.

Cooley and Christiancy JJ. concurred.

Martin Ch. J.

dissenting:

I do not concur with my brethren in this case. The bill was filed to remove administrators, and for the appointment of others, — asking for the appointment of a Receiver and an Injunction until the final hearing. The Receiver was appointed and Injunction granted upon an interlocutory motion. The final hearing has not yet been had; and the question of costs and further directions is expressly reserved until the final hearing. How this can be regarded as a final decree, under the rulings in this State, I am at a loss to conceive. — (See 2 Doug. Mich. 288; 6 Mich. 391; 10 Id. 398.)

I think the motion should be granted.


author: By the Court.

text:
    Maria Chaffee v. Amos Chaffee.

      Alimony and expenses. When sufficiency of bill will not be considered on motion. la an application for alimony and expenses, made by a wife who is complainant and appellant, this Court will not decide upon the sufficiency of the bill, when the parties have taken testimony in the cause and gone to hearing upon proofs, instead of demurring.

      Practice where expenses are allotted. In this case the appeal having been taken by complainant, and the court leaving granted an order that defendant advance the expense of printing, but it being claimed that much irrelevant matter had been introduced, it was also ordered that complainant execute security to refund the same, or such part as might be thereafter decreed to be refunded.

      Heard October 3d.

      Decided October 4th.

      L. Bishop and G. V. N. Lothrop, for the motion.

      D C. Holbrook and S. T. Douglass, contra.
   By the Court.

The complainant filed her bill in the Circuit Court in chancery, for a divorce a mensa et thoro. The defendant put in an answer; the case was heard in the court below on pleadings and proofs, and her bill was dismissed after a full hearing upon the merits. She appealed'to this Court, and a motion is now made by her counsel for temporary alimony, for the costs of the return, of printing the record and brief, and for a reasonable attorney and counsel fee in this Court.

This motion is opposed on the ground that the bill does not set forth a case which would authorize a decree for divorce.

As this objection is one which would rest upon the same grounds as a demurrer to the bill, and the defendant did not see fit to demur, but took issue upon the facts, and evidence has been taken which constitutes the great bulk of the record, it is clear that if the objection to the bill is well founded, this evidence would never have been taken, nor the expense of the printing incurred, if the bill had been demurred to. It would, therefore, be unfair to complainant to deny the motion upon any such ground. This objection, therefore, must be reserved for the hearing of the case.

We think the complainant is entitled to an order for a reasonable attorney or counsel fee in this Court; and we therefore allow her one hundred dollars for this purpose. The actual expense of printing briefs must also be allowed. She is also entitled to temporary alimony to commence from the first day of August, at which time the alimony allowed in the court below ceased.

But, in fixing the amount, we do not think we are at liberty to go beyond her actual necessities. We are not at liberty to prejudge the case, by fixing- the amount on the same broad principles which would apply in fixing the amount of permanent alimony. We allow her fifty dollars per month from the first day of August last, payable monthly during the pendency of this suit, or until the further order of the court.

As to the costs of the return and printing, it is urged that a very large portion of the record consists of irrelevant testimony, with the printing of which it would be unjust to charge the defendant in any event. As this is a point on which we shall be better prepared to decide upon the hearing, we reserve, till then, our final determination of it.

But, in order to prevent any hardship, we will direct the necessary expenses of printing and return to be advanced by defendant, upon complainant’s filing a satisfactory bond in the sum of $500, conditioned to refund the same, or such part thereof, as may be decreed by this Court hereafter to be refunded. Such payment to be made in ten days from filing and approval of such bond.


author: Cooley J.

text:
    Daniel McFarlane v. Frederick Ray and another.

      Ti'espass upon lands; pleading and evidence. Where an action is brought for trespass upon lands in a certain township, if the plaintiff declares generally without giving a particular description of the lands, and the defendant pleads title in himself, he will make out a defense by proof of ownership in himself of any parcel of land in the township mentioned in the declaration.
    Under the common law pleadings, if the defendant pleaded liberum tenemenium, the plaintiff could, by a new assignment, describe his land by metes and bounds, and this amounted in effect to a new declaration. Under our practice which admits of no pleading subsequent to the defendant’s plea and notice, the plaintiff can give no evidence which, at common law, required a new assignment to support it.

      Ownership of land, what prima fade evidence of. Proof of possession of land, together with a claim of title under a deed purporting to convey it, is prima fade evidence of title as against one who shows no right in himself.

      Heard October 5th.

      Decided October 9th.

    Error to Macomb Circuit.
    The facts are stated in. the opinion.

      Levi Bishop, for plaintiff in error.
    1. It is a familiar rule that a party attempting to prove a title to land, must show that it is derived from the sovereign power existing in the country at the time the chain of title originates, or from a source of title common to both parties to the suit.
    The general rule in this country is, that all titles to land are derived from the crown or colonial governments before the revolution, or from the States where the title has been vested in the States, or from the United States; all titles having been originally derived from the Indians. — 3 Kent's Com. 501, 2.
    Courts can take notice of no titles to land, which are not thus derived. — 3 Kent, 502, 3 ; 4 Johns. 163.
    2. The action is for trespass quare clausum fregit. In such a case the plaintiff may in Ms declaration charge the offense to have been committed on Ms close in the parish, or town, &c., without stating the locus in quo by metes and bounds. To such a declaration the defendant, if he owned any close in the same parish or town, might, under the former system of special pleading, set up his title by a plea of liberum tenementum. Then the plaintiff in his replication would new assign, specifying the real locus in quo by metes and bounds. In this mode the parties reduced to a certainty the description of the real locus in quo, which was' in controversy. — 2 Saund. Pl. and Ev. 635, 6; Stephen’s Pl. 315, 16, 220-26; 2 Selw. Nisi Prius, 1353, 1355-6; 1 Chitty’s Pl. 503, 624-5, 528-30.
    Under the system of special pleading, if the defendant took issue by a plea of not guilty, upon such a general declaration the plaintiff was entitled to a verdict, if he proved a trespass by the defendant upon any piece of land which he could prove to be his in the alleged parish or town. — 1 Chitty’s Pl. 625, 629; 2 Saund. Pl. and Ev. 635-6, 856, 865.
    The only plea in the case is the general issue, which is simply a denial that a trespass was committed on the close of the plaintiff. If the plaintiff proved that a trespass was committed on his property, he was entitled to a verdict.
    The defendants did not plead liberum tenementum, as they could not under the statute. They gave a notice that they would on the trial prove that the locus in quo belonged to them. This was simply saying that the attempt would be made to show that the place, where the wrong was really committed, belonged to the defendants; that defense could have been shown under the general issue as well as under a notice. In either case the parties were both held to proofs as to the real locus in quo in question. The plaintiff accordingly proved his title, and proved the injury by the defendants, while the defendants offered no proofs touching the real question in issue. — 2 Greenl. Ev. § 625; 1 Chitty’s Pl. 505.
    It is only in cases where the plaintiff’s declaration is general as to the locus in quo, and the defendant pleads liberum tenementmn in like general terms, and the plaintiff takes issue on such a plea without a new assignment pointing out the real locus in quo by metes and bounds, that a defendant is entitled to a verdict upon proof of title in him to any close in the alleged parish or township. — Stephen’s Pl. 220-4; 1 Chitty’s Pl. 503, 629; 2 Saund. Pl. and Ev. 636; 10 East, 80; 11 Id. 51.
    In that case the issue is formed on the plea and claim of title of the defendant, which the defendant sustains, under the old system of pleading, by proof of title in him to any close in the parish. In the other case, which is the case at bar, the issue is formed on the plaintiff’s declaration and claim of title, and this the plaintiff sustains by proof of title in him to any close in the parish.
    The plaintiff, under the present system of pleading, is entitled to meet by proofs at the trial any defense which might have been pleaded under the system of special pleading ; and which must consequently now be brought forward by the defendant under a notice. — 6 Mich. 514—15; 8 Id. 349, 351.

      R. P. & J. B. Eldridge, and Wm. P. Wells, for defendants in error.
    1. This action is trespass “ quare clausum fregit’’ and is local. The gist of the action is the breaking and entering the close. The cutting and carrying off timber 'is, in the plaintiff’s declaration, alleged as matter of aggravation.— 1 Denio, 181; 1 Comst. 515.
    The declaration being general, neither naming nor describing the “locus in quo’’ under the plea that the close mentioned in the declaration was the close of the defendants, &c., it is not error to permit the defendants to show title to any land in the town of Erin; and by so doing, the defendants were entitled to judgment. — 1 Chitty’s Pl. (ed. 1855) 595; 1 Barn. & Cress. 489; 7 Durn. & East, 323; 2 Phillipp’s Ev. 193; 8 Wend. 476, 503; 11 Id. 642; 12 Id. 207.
    The evidence of ownership and possession by defendant Frederick Ray, of a portion of section 22 in the town of Erin, including the deed to him under which he claimed, was properly received.
    The deed to Ray and his acts while in possession, together with his claim, explain that possession, and constitute the same “prima facie ” evidence of his title to, and seizin of, the fee of said eighteen acres in section 22. — 7 Wheat. 59; 8 Carr. & Payne, 536; 2 Hill, 340; 2 Black. Com. 290.
   Cooley J.

At the common law, where the defendant pleads liberum tenementum to a declaration in trespass quare clausum, if the declaration does not contain a particular description of the premises, the plaintiff is always liable to be defeated by the defendant showing title in himself to any parcel of land which would come within the general description given; that is to say, which lies within the township named. The declaration in the present case was of this general character, and the defendants had annexed to their plea of the general issue, a notice of title in Frederick Ray; thus presenting by the record the same issue, so far as this notice is concerned, which would be presented by the plea of liberum tenementum at the common law. The Circuit Court ruled, that under this notice the defense was established by proof of title in Frederick Ray to any parcel of land in the township; and the first error assigned is upon this ruling.

At the common law the plaintiff might avoid this result by new assignment; that is, by setting forth in his replication to the plea a description of his own premises by metes and bounds, or other particular description; and the issue taken upon this replication would confine the proof to the parcel of land thus described. — 1 Chit. Pl. 606, and cases cited: Ellice v. Boyer, 8 Wend. 503. Our statute—Comp. L. § 4176, et seq. —abolishes special pleas, and requires the defendant, in order to avail himself of any matter of defense which, according to the former practice, was required to be pleaded specially, or of which a special notice was required to be given, to annex to Ms plea of the general issue a notice to the plaintiff, briefly stating the nature of such defense. To such a notice there can be no replication, and consequently there can be no new assignment, but the plaintiff goes to trial upon the declaration, plea and notice.

But the plaintiff contends that under our practice he is entitled to present, by his proofs, any matter in reply to the special notice of defense which might formerly have been replied and proved under replication. This is true as a general rule; but whether it can be done in a case requiring a new assignment, and where the replication in fact takes the place of the declaration, is a question quite distinct from that presented in other cases.

It was always at the option of the plaintiff whether he would declare .generally, or set forth a particular description of the premises. If he did the former, and the defendant interposed the general issue only, the latter was always liable to be surprised by proof of a different transaction from that he sup. posed was complained of, since prqof of an entry on any parcel of land in the township, in the plaintiffs’s possession, would be within the declaration. One object of the plea of liberum tenementum in such a case was to compel the plaintiff, by giving a specific description of the land, to confine his cause of complaint, and consequently his proofs, to a specified parcel. We do not think our statute, in abolishing special pleadings, designed to deprive the parties of substantial rights, but rather to simplify the proceedings, and do away with a system which, in the hands of skillful pleaders, was sometimes made to defeat justice. But if its effect is to enable the plaintiff to recover for a cause of action for which he could not have recovered at the common law, upon an issue precisely the same in substance, it is evident that the statute has gone beyond its purpose of simplifying proceedings and abolishing technicalities, and has conferred upon the plaintiff the power to surprise the defendant by proof of a cause of action which he .had not anticipated, and which he has no means of compelling the plaintiff to point out specifically by the pleadings. We do not think we can give the statute this construction. The parties go to trial upon the record which they have made up, and no evidence is admissible under it which would not have been admissible under a record precisely similar in substance before the statute. The question presented by this special notice is, whether the defendant, Frederick Ray, is the owner of any parcel of land in the township of Erin; and ownership in the plaintiff of any other parcel is foreign to the issue which the notice presents. If the plaintiff proposes to raise that question, he must in accordance with general rules, put his pleadings in proper form for the purpose.

There is no mode under our statute in which the plaintiff, who has at first declared generally, can obtain the benefit of a new assignment, except by amending his declaration.

This, where the suit is originally brought in the Circuit Court, he may do as a matter of right,— Circuit Court Rule 35 —but where the action is brought before a justice of the peace, and plea of title is interposed and bond given, the justice is required by statute thereupon, without further proceeding,” to certify the cause to the Circuit Court, and does not appear to possess any power to allow amendments.— Comp. L. § 3729 to 3734. The statute makes the plea, notice and bond, terminate his jurisdiction of the case; and as the statute also provides that, in the Circuit Court the plaintiff shall be per-, mitted to declare or to give evidence only for the same cause of action whereon he relied before the justice, it would not seem to be in the power of that Court to allow him to so amend his declaration as to describe his premises by metes and bounds, if the result would be to cut the defendant off from a defense which would have been available and complete on the pleadings as they stood before the justice. — Tuthill v. Clark, 11 Wend. 642.

While, therefore, the plaintiff still has the option to declare in general form as before, yet as our practice affords him no opportunity for new assignment, he is apprised at the outset that at his peril he must present to the justice such a declaration as will enable him, whatever may be the defense, to go to trial upon his real matter of grievance; though we have no doubt of the power of the Circuit Court to allow any amendments that do not affect substantial rights. But whatever the record is, the parties must try their rights upon it, and not upon some other issue, only brought into the case by the evidence, and variant from that which the record presents.

We are also of opinion that the Court was correct in admitting proof of the deed to Frederick Bay, in connection with evidence of possession and claim of title under it, without requiring him first to go back to the source of title and trace it from thence, to his grantor. A party seeking to show title may commence at either end of the chain at his option; and it does not appear from the bill of exceptions that a complete title was not made out. But possession and claim of title under a deed which purports to convey it, is prima facie evidence of title as against one who shows no right in himself.— Jayne v. Price, 5 Taunt. 326; Livingston v. Peru Iron Co., 9 Wend. 520; People v. Van Nostrand, 9 Id. 50; People v. Leonard, 11 Johns. 504; Day v. Alverson, 9 Wend. 223; Ricard v. Williams, 7 Wheat. 59.

The judgment of the Circuit Court must be affirmed, with costs.

Campbell and Cheistiancy JJ. concurred.

Martin Ch. J. did not sit.


author: Campbell J.

text:
    William S. Edwards v. Samuel Chandler.

      Libel. Privileged communications. Pleadings and practice. Where in an action for libel tbe alleged communication was privileged, it was held that it was part of plaintiff’s case to prove tbe falsity of tbe communication, as well as tbe malicious intent; and that as tbe proof of tbe truth of tbe allegations was only tbe contradiction of such case as plaintiff was bound to establish, defendant was entitled to give proof of their truth under the general issue, without special notice.
    Where the libel charged is not privileged, the plaintiff is not bound to prove its falsity; and the justification of it by defendant as true, not being a denial of any thing incumbent upon plaintiff to prove, must be pleaded or noticed specially.

      Agent Objection to evidence. A witness having testified, without objection, to certain acts as agent of a company, proceeded to state his authority as such, to' which a general objection was made. Held, that if his action was accepted and followed by the company, it could make no difference whether he had any original authority or not.

      Libel, embezzlement The letter sued upon in this cause contained the following language: “It is wondered at how he can live in more than ordinary style, as he does, while having merely the honorable receipts of his agency to live upon.” It had also charged him with vexatious acts, and”charging unusual rates.
    The Court charged the jury that if they inferred from the language of the letter, that it intended a charge of embezzlement, they would be warranted in so finding. Held, that the language did not necessarily imply a charge of embezzlement or larceny, but that, if the jury could infer such a charge from the letter, it was properly submitted to them.

      Heard July 11th.

      Decided October 16th.
    Error to Hillsdale Circuit.

      A. Blair, for plaintiff in error.
    1. When a party making a communication as well as the party receiving it, have an interest in it, it has never been doubted that it was privileged. — 16 N. Y. 373; 22 Wend. 414.
    The letter declared upon in this case was clearly of this class. It was written by the plaintiff in error to the general agent of the H. S. Express Company in pursuance of a conversation and a request of said- agent. The plaintiff in error being a customer of the company, both parties were interested in the subject matter of the letter. It was therefore clearly privileged.'
    It was so recognized and treated by the court and counsel on both sides. — 30 N. Y. 25.

      2. The letter being privileged, the burden of proof was upon the plaintiff in the court below, to establish express malice, or want of good faith in writing the letter.
    The gist of the action was the malicious intention of the writer of that letter, and the plea of the general issue put that question directly in issue. It was competent, therefore, for the defendant below to disprove the charge of malice under the plea of the general issue; and proof of the truth of the charges, or statements contained in the letter, or of the defendant’s belief that they were true, was a complete defense to the action. — 2 Greenl. Ev. §§ 421-428; 12 Pick. 163 ; 3 Met. 197, 198 ; 22 Wend. 423.
    But the notice under the general issue was sufficient to let in proof of the truth of the matters stated in the letter. Though the notices undertook to detail the evidence or particular circumstances going to show the truth of the statements, that was unnecessary; and they furnish sufficient notice to the plaintiff, that the defendant would justify uj>on the trial, by showing the truth of the alleged libel. — 8 Mich. 351; 6 Id. 514.
    It does not cure this error, that the court did allow some such facts in mitigation of' damages, because evidence in mitigation involved an admission of the falsity of the charge. — 2 Greenl. Mo. § 425.
    3. The court erred in overruling the objection to the testimony of the witness, Calvin Cone, because it appeared that there was better evidence of his authority, to wit: the articles of association and by-laws of the company.
    These should have been produced. It is not to be believed that a subordinate like Cone had the power to fix the rate of charges for this company.
    4. The court erred in charging the jury that “ they would be warranted in inferring from the language contained in the letter a charge of embezzlement, or of misapplying or appropriating the funds of the express company or their customers, to his (the plaintiff’s) own use.”
    This construction of the letter is not warranted. The whole purport of it is that the plaintiff had misused and wronged the defendant, and he wished him removed for that reason. There is nothing that can be fairly construed into a charge of wronging the express company.
    The letter was confidential, and was made public by the plaintiff himself. It simply asked the company to look into the conduct of its agent towards the defendant Edwards. „
    These privileged communications are to he construed liberally. — 16 N. Y. 371; 2 Greenl. Ev. p. 398, note 1.

      Johnson & Higby, for defendants in error.
    1. The first and second errors assigned are substantially the same, and are in substance that the court erred in not allowing plaintiff in error to show, under the general issue, particular facts tending to prove the truth of the matter in the declaration charged as libelous.
    We regard the rule as settled, that particular facts cannot be given in evidence under the general issue, either by way of justification or in mitigation of damages. — 2 Stark. on Slander, 89-99; 4 Mich. 409; 1 Am. L. Gas. 178; 11 Mich. 20.
    2. The third error assigned is, that the court erred in allowing the witness, Cone, to prove, by parol, his authority as agent to issue the printed regulations which were given in evidence.
    The objection was not well taken. It was a general objection. It did not point out in what respect the evidence was inadmissible. It is therefore no error. — 11 N. Y. 442-482.
    3. The last error assigned is, that the court erred in charging the jury substantially, that the letter charged the plaintiff below with embezzlement, or misapplication of the funds of the company.
    This involves a construction of the letter, and presents a question' that is not much aided by authorities. An examination of the whole letter, and the facts and circumstances under which it was written, furnish pretty strong proof that the court gave a proper construction to the letter.
    Besides, if the Judge erred in his charge in that respect, the judgment ought not to be disturbed, provided the whole letter, taken together, was a libel. As to what constitutes a libel, see 7 Cow. 620.
   Campbell J.

Chandler sued Edwards upon a charge of libel, in writing to Henry Kip, Superintendent of the United States Express Company, a letter reflecting upon the character of Chandler, as agent of that company, at the village of Hillsdale, and complaining of his conduct in such agency.

Edwards pleaded the general issue, and with it gave notice that the letter was of such a character, and written under such circumstances, as to make it a privileged communication. The notice also set forth several facts going to prove the truth of many of the allegations in the letter, but not purporting to cover all of them.

As the letter was clearly privileged, and was so held by the court below, the only questions to be considered are such as apply to that class of instruments.

Upon the trial, after the plaintiff below had closed his ease, and after the defendant had introduced proof upon the specific facts detailed in the notice appended to his plea, the latter offered to prove additional facts not contained in the notice, going to establish the truth of his letter. Objection being made, the court declined to permit this, and held that no evidence should be received on the subject, except of facts alleged.

In this the court was very clearly in error. Where a communication is privileged, the plaintiff cannot recover without proving affirmatively not only the falsehood of its contents, but also that it was published with express malice. Unless he can prove both of these points he must fail. The falsehood being a necessary part of the case to be made out by the plaintiff, the truth is but a contradiction of that case, and may be made out under the general issue, therefore, without resort to a special plea or notice. Upon this question there seems to be no conflict of authority, and it is in accordance with the general doctrine of pleading, that the defendant may deny, under the general issue, whatever the plaintiff is obliged to prove as an essential part of his own case.

Where the libel charged is not privileged, then the plaintiff is not bound to prove its falsity; and the justification of it'as true, not being a denial of anything which rests on the plaintiff, is strictly in avoidance, and must, therefore, be pleaded or noticed specially.

The same rule of pleading, therefore, which requires a special plea in the one case, renders it inapplicable in the other; and so it has been determined.—Remington v. Congdon, 2 Pick. 310; 2 Greenl. Ev. § 421; 2 Starkie on slander, 103, 104; Bradley v. Heath, 12 Pick. 163; Fairman v. Ives, 5 B. & Ald. 642; Child v. Affleck, 9 B. & C. 403; Somervill v. Hawkins, 3 L. & Eq. 503; Fountain v. Boodle, 3 Q. B. 5.

It is also alleged as error that parol evidence was improperly introduced to show the authority of one Calvin Cone. Having already testified without objection that he had charge of the Express Company’s agents and business in Michigan and Ohio, and that he issued a certain table of rates, and the rules and regulations attached, he proceeded to say that he had authority to issue and promulgate the same; and this last statement was objected to.

The objection is a general one, and its validity is, therefore, questionable under any circumstances, but we do not perceive that it has any special force. We cannot know judicially that his action was not accepted and followed by the company, and if so, it can make no odds whether he had or had not any original authority, nor whether it was verbal or written.

It is also alleged as error that the court improperly charged the jury that they would be warranted in inferring from the letter sued on, a charge of embezzlement, or of misapplying or appropriating the funds of the express company or their customers to the use of Chandler. The language supposed to justify this inference was this: “ It is wondered at how he can live in more than ordinary style, as he does, while having merely the honorable receipts of his agency to live upon.” The letter had previously accused him of vexatious acts, and of charging larger rates than were charged at other offices.

The language does not necessarily imply that he had embezzled or stolen, but it is ambiguous, and we are not prepared to say that a jury could not draw such an inference without unreasonably stretching or perverting the sense. Such language must be construed by the jury, and not by the court. —Lewis v. Chapman, 16 N. Y. 371. But the Court in this case did not direct the jury to draw the inference. They were told that “ if such toas their inference from the language in the letter,” they would be warranted in drawing it. This left it entirely to the jury, and we cannot say that it was done in such a way as to mislead them into supposing it to be an obligatory inference.

There being error in the exclusion of testimony, the judgment must be reversed, with costs, and a new trial granted.

The other Justices concurred.