text:
    Emeline S. Morton, Administratrix, &c., v. David Preston.

      Estate of deceased persons: Might of administrator to recover property disposed of • by heir. M. died, in Michigan, owning shares in a New York corporation. No administrators being appointed, the widow and hens placed their names on the certificate representing the stock under an agreement that it should be sent through W. D. M., one of the heirs, to a named person in New York for sale; and it was sent accordingly.
    W. D. M., having thus received the certificate, and having sent it to New York in pursuance of the arrangement, subsequently, and without the knowledge or assent of the widow and other heirs, made an agreement to pledge it as security for a debt owing by him, and thereupon required the bailee of the certificate to deliver it to the creditor, which was done. The latter afterwards sold it and received the price. These facts coming to the knowledge of the widow, she took out letters upon the estate, and sued the creditor for the conversion of the property. Held, that she was entitled to recover.

      Estoppel of administrator by acts previous to the appointment. The administratrix in such a case is not estopped hy her previous action in endorsing the, certificate from maintaining the suit in her representative capacity.

      Trover: Damages for the conversion of certificate of stock. When a party wrongfully sells a certificate of shares of stock in a corporation, under such circumstances as to make him liable in trover, it is the shares of stock that he is to be considered as having converted, and not merely the paper certificate which represents those shares. He cannot claim, therefore, to be liable only for nominal damages for such conversion.

      Heard October 23d, 1868.

      Decided January 11th.

    Error to Wayne Circuit.
    This was an action of Trover brought to recover damages for the conversion of certain shares of stock.
    Judgment was^ rendered in favor of the defendant below.
    The facts are stated in the opinion.

      D. J. Davidson, and A. Pond, for plaintiff in error.
    1. Although the property represented by the certificate in question be considered as being situated in the State of New York where the corporation exists, yet the plaintiff may maintain this action.

      a. TTpon grant of letters, the administrator is clothed with the legal title to - all the personal property of the intestate, including choses in action. —Beecher v. Buckingham, 18 Conn. 110; Perkins v. Stone, 18 Id. %76.

      b. This title takes effect by relation at the time of the death of the intestate, and the administrator may maintain an action for a wrongful intermeddling with the estate occurring prior to grant of letters. — Fisher v. Young, Bulst. 268; 9 Wend. 802 ; 2 Hill, 18L

      c. This legal title extends to the personal property and choses in action of the intestate situated without the State. Shultz v. Pulver, 11 Wend. 868; Perkins v. Stone, 18 Gonn. 270; Band v. Hubbard, I Mete. 252; Hutchings v. State

      Bank, 12 Id. 1$2 ; Swarez v. Mayor, etc. of New York, 2 Sandf. Oh. 178; Brown v. Brown, 1 Bari. Oh. 189; Peterson v. Ohemical Bank, 82 N. Y. 21; Evens v. Tatem, 9 Serg. and Bawle 258; Swearingen’s Exr. v. Pendleton, I Id. 892; McNamara v. Dwyer, 7 Paige, 289; Guilick v. Guilick, 88 Bari. 92.

    The executor or administrator represents the person of the intestate, and so far as the title of personal property is concerned, stands in his stead, being his “assignee in law.” Shultz v. Pulver, 11 Wend. 868.

      d. The rule prohibiting foreign executors or administrators -to prosecute or defend in their representative character, without the previous ceremony or qualification of probate and letters, rests upon a mere personal disability. Courts simply withhold their aid in enforcing the title of such foreign administrators, by reason of their solicitude to protect the rights of creditors and legatees resident in the jurisdiction in which the assets are found. — Doolittle v. Lewis, 7 Johns. Oh. 51; Holmes v. Remsen, 1¡. Id. 172; Thorne v. Watkins, 2 Yes. Sen. 85.

    2. The defendant, by the transfer to him under the circumstances shown by the record, obtained, as against the plaintiff, no title, legal or equitable, to the certificate of stock in controversy.

      a. The certificate was not so indorsed as .to pass the legal title by delivery.

      l> It did not come to the hands of the defendant with this indorsement upon it, under such circumstances as to estop any of the heirs of Julius D. Morton to whom the Certificate was issued, from denying that the title, legal or equitable, passed to him.
    The certificate was indorsed, as shown, and delivered to Wm. D. Morton, not to sell or transfer to the defendant or to any one else, but for the sole purpose of transmitting to Buffalo. He had so transmitted it, and thus the express authority conferred upon him by the other heirs was at an end.
    Hence, the defendant can claim nothing against the other heirs, upon the ground of any authority expressly given to Wm. D. Morton.
    And as the indorsement-carried with it no evidence of title, he can claim nothing upon that ground.

      c. The plaintiff, in her character as administratrix, is not estopped from denying that the title, legal or equitable, passed to the defendant.
    All she did' was to endorse with her own name .the cer tificate of stock, for the purpose of enabling it to be transferred upon certain contingencies, which never happened, to some one, other than the defendant, and the defendant obtained possession of it with this endorsement upon it, without her knowledge or consent, and without any intention on her part to transfer the title to him. — Wilson’s Admx. v. Hudson, Harrington 168 j Doe dem. Hornby v. Glenn, 1 Adol. and Milis, J/.9.

    3. The defendant having converted the certificate, which-represents the title to the property in question, to wit, the stock, is liable as for a conversion of the stock.
    Any interference with or control exercised over property under a claim of right, inconsistent with the rights of the owner, is a conversion.
    The defendant claims the right to retain, and did retain the certificate, which was the only evidence of title’ to the stock, upon the ground that he was entitled to it as the owner of the stock; and in disposing of the certificate, claimed and assumed to dispose of the stock, and has thus assumed an interference with the property inconsistent with the rights'of the complainant, and is guilty of a conversion of it.
    It is well settled that Trover will lie for the conversion of a chose in action, such as a promissory note, bond, title deed, and certificate of stock; and the measure of damages is the value of the property represented by such chose in action. — Bradley v. Qamelle, 7 Minn. SSI; (JDonoghue v.Corby, 22 Mis. {1 Jones), 894; Webber v. Davis, 44 Maine, 147; Gibbs v. Chase, 10 Mass. 128; Miller v. Baker, 1 Met. R. 81; Common v. Hillier, 11 8. C. L. R. {Rich.) 193 ; Anderson v. Nichols, 28 N. Y. 600; Chives v. Hawley, 12 Johns. 4^4; Parry v. France, 2 Bos. and Pull. 451; Robbins v. Packard, SI Vt. 570; Stone v. Clough, 41 N. H. 290; Murray v. Burling, 10 Johns. 170; Boivling v. Nash, 10 Cush. 418; MoCombie v. Davis, 9 Fast, 538.

      Walker & Kent, for defendant in error.
    1. It is now settled that the title to stock, as between the parties, may be transferred by a transfer of the certificate endorsed in blank. — Com. Ble. v. Kortwright, 22 Wend. 848; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. SO; Mandlebaum v. North Am. Min. Co. 4 Mich. 465.

      2. In this case the plaintiff and other persons entitled to the estate of J. D. Morton, by endorsing the certificate in blank for the purpose of a sale, and by entrusting it to ¥m. D. Morton, gave him an apparent authority to pledge the same, and they are as much bound by his act as though they had expressly assented thereto. — Fx parte Swan, 7 Com. Bench {N. S.) 1J>0; S. C. 7 Hurlstone & Nor. 601; Davis v. Bradley, 24 Vt. 55; Booth, v. Bruce, 40 Barb. 114; State B’k v. Hastings, 15 Wis. 75; 16 La. An. 127; 15 Mass. S89; Story on Agency, 127.

    3. The heirs and distributees of an estate, where there are no debts, may settle it and dispose of the personal property without administration; at least they can pass a title which shall be good against themselves. — Babbitt v. Bowen, 82 Vt. 488; Taylor v. Phillips, SO Id. 2S8; Kilcrease v. Shelby, 23 Miss. 161; Reid v. Butt, 25 Geo. 28; 29 Id. 585.

    The case of Cullen vs. O’Hara, 4 Mich. 1S2, will be cited as sustaining a contrary doctrine, but we submit that so far as it does this, it should be overruled.

      4. The taking out of letters of administration by plaintiff rebated back to the transfer of the certificate in question and legalized the same, even though otherwise void. — Alvord v. Marsh, 12 Allen, 60S; Priest v. Watkins, 2 Hill, 225; Giles v. Ohurchill, 5 N. H. 887; Mayner v. Ryan, 19 Mis196; Vroom v. Van Horne, 10 Paige, Ch. 557; Gross v. Teilington, 2 Murphy, 6; Whitehall v. Squire, 1 Salkeld, 296; Vaughan v. Broion, Andrews, 888; Garlin v. Vernon, 5 Burn, é Bast, 590; 8 Johns. 98, 125; Givens v. Higgins, 4 McCord, 286; 15 Mass. 825.

    5. If the transfer to defendant of the certificate was void, then defendant has converted nothing but the certificate itself, and not the shares it represented, and the damages suffered are only nominal. — 2 Taunt. 439; 7 Serg. & Razóle, 285.

    6. The corporation which issued the stock in question exists only by virtue of the laws of the State of New York, and every transfer thereof is regulated only by the laws of that State. — Black v. Zacharie, 8 Hozo. 511.

    The plaintiff is administratrix of the estate of J. D. Morton, only in Michigan. Her authority would not be recognized in New York; hence, she has not the legal title to the stock in question.
   Graves J.

The plaintiff in error brought trover in the Court below against Preston, to recover damages for the alleged conversion by him of a certificate for fifty shares of stock of the Buffalo and Detroit Transportation Company, and which certificate, and the stock represented by it, Mrs. Morton claimed to have belonged to the estate of her late husband.

It appeared in evidence on the trial, that Mr. Morton died intestate in this State, in February, 1865, leaving his widow, the plaintiff, and three children; namely, J. Sterling Morton, William D. Morton, and Emma Morton, all of full age, him surviving. It further appeared that after the death of Mr. Morton, the certificate in question was found among his papers and taken possession of by his family. The estate not appearing to be indebted, no step was taken to administer upon it at the time, and the children mutually agreed that Mrs. Morton and her daughter Emma should occupy the homestead and receive and use the income of the estate for their support, so far as necessary, and preserve the property; and that upon the death of Mrs. Morton the estate should be divided among the children. It having been subsequently thought advisable to convert the stock in question into money in order to invest the proceeds’in real estate security, the widow and children, to effectuate that object, in August or September, 1865, placed their names upon the certificate, and caused their indorsements to be attested by two witnesses. The certificate thus written upon, was placed in the hands of William D. Morton, one of the children, with express instructions to send it to one Armstrong, at Buffalo, to be by him sold and converted into cash. ' Young Morton then transmitted the certificate to one Gridley at Buffalo, to be by him handed over to Armstrong if the latter could sell it, but it was not sold. About the first of November, 1865, the defendant Preston, who was a Banker at Detroit, held a note for $4,200 made by one Wilkins and endorsed for the accommodation of the latter by said William D. Morton, which had matured and was unpaid. Preston urged young Morton to pay the note, and threatened to institute legal proceedings against him if the matter was not satisfactorily arranged.

Morton was then expecting to be elected cashier of a new bank about to be organized in Detroit, and was apprehensive that a suit against him on the Wilkins’ note would impair, if not destroy his chance for an election. He thereupon offered to take up the Wilkins’ note by substituting his own, but Preston declined to arrange the matter on that basis unless Morton would give additional security. Morton then proposed to give the stock as security, but informed Preston that the certificate was issued to the father. Julius D.; that it had been endorsed by Mrs. Morton, and the heirs, and was- then in Buffalo to be sold. ’Preston acceded to this proposal, and young Morton thereupon gave his own note for the amount of the Wilkins’ note and an order on the custodian of the stock at Buffalo for the delivery of the certificate, and Preston surrendered the Wilkins’ note to Morton. In this negotiation between William D. Morton and Preston, the former talked about the stock 'as though it belonged to him; but the latter did not ask him whether he owned it or not.

At 'this time, young Morton was cashier of the Farmers and Mechanics Bank of Detroit, and the transaction referred to, occurred at the office of Preston in the same city. After acquiring the order from Morton, Preston, by means of it, obtained possession of the certificate.

This disposition of the certificate by William D. Morton was wholly- unauthorized by Mrs. Morton, and the brother and sister of William, and was unknown to them until some time in the following spring, when Preston, on being applied to by one of the heirs, and before he had obtained actual possession on the order, refused to give up the stock. On the 29th of December, 1866, the stock was sold by Preston for $4,750, and on the 12th of November, 1867, Mrs. Morton was appointed administratrix of the estate; and thereupon she caused a demand to be made upon Preston for the delivery of the certificate, and at the same time offered to return the Wilkins’ note.

The sum for which the stock was sold, together with the interest from the time of sale, amounted to $5,217 18. The defendant Preston, testified, among other things, that when he made the arrangement with young Morton, he had no knowledge that the latter was not acting in good faith in making the transfer, and supposed that he was the owner 'of the stock. He further testified, that it was customary for bankers to loan money on certificates for stock, endorsed in blank; and that when he received the order for the stock from Morton, the latter stated that the stock was -in Buffalo for sale, and that he could pay him, Preston, when the sale should be made.

He also testified, that on receiving the order, he sent to Buffalo and had the stock held subject to his order.

It likewise appeared in evidence, that the balance due from Preston, after deducting the amount of the notes of William D. Morton, had been tendered, and that it was agreed that such balance should not be considered in the case.

The errors assigned are quite numerous, but we think that some of them are not material to the decision of the case, and that the others do not require to be separately considered.

It may be doubted whether upon .the theory of the defense the plaintiff’s right to maintain the action could be resisted. The stock belonged to the estate, and no administrator had been appointed. The family wished to sell, but had no design to pledge the stock as security for the debt of any person. The certificate was placed in the hands of W. D. Morton for the sole purpose of being sent to Armstrong, who was to sell it if he could, and who was alone confided in by the family to make the sale. It was not at the time of the arrangement with Preston in the hands of young Morton, but was in Buffalo, where it had been sent according to the design of the family. These facts were not disputed. If, as a matter of fact, Preston was led to believe by or without any representation on the subject on the part of young Morton that the latter was the owner, it is difficult to conceive how any such belief, under the actual circumstances, could avail him as a defense against the claim of the true owner.-

It appears that at the very time of the arrangement, • Morton had not the evidence of ownership sometimes implied by possession; and it is manifest that the instrument was not so endorsed for the purpose of transfer as to answer the requirements of the law merchant regulating the mode of transfer of commercial paper. The certificate was issued to Julius D. Morton, but the indorsements consisted only of the names of his widow and children. If it be admitted, therefore, that the certificate, had the same negotiable qualities which belong to commercial paper, and required no greater or other formalities to work a change of'title, which is the utmost that has been claimed for it, it is evident, I think, that the endorsement in question was not such, as thereupon to make the legal title pass by delivery.

The form and nature of the indorsement were apparently insufficient to work a technical transfer of the legal title, and to see this, was, in legal contemplation, to know it.

It seems to me, therefore, that the circumstance that young Morton never in fact possessed any authority to sell, or pledge the certificate, and neither had possession nor the right to it, and the additional circumstance that the indorsement, as it stood upon the paper, was prima facie, insufficent to pass the legal title, completely answer the claim set up by the defense.

Whatever -may be thought, however, of this view of the present case, the Court are of opinion that the ease of Cullen v. O'Hara, 4 Mich. 132, which was decided upon much consideration, and from which we see no reason to depart, is decisive of the most material questions presented by this record.

In that case, O’Hara, as administrator of Ann O’Brien, brought trover against Cullen to recover for the conversion of gold coin amounting to $585.

The substantial facts were that the plaintiff’s intestate died in November, 1848, in possession of the coin, and without having made any will; that during her last sickness she stated to her attendant, one Catharine Vaughan, that the principal part of the property in her possession belonged to the estate of her brother, one James O’Brien, who had died inestate some time before in New York, leaving an infant child named Ann O’Brien, his next of kin and sole heir, for whom Oullen was guardian, and that upon the death of Ann O’Brien, the elder, her attendant, Catherine, delivered to Oullen the coin in question. It was also proved that in September, 1849, when O’Hara and Oullen were aware of all the facts and of the claims of each, the former, in his individual capacity, borrowed of the latter $200 of the coin in dispute, and gave his bond and mortgage to secure its repayment, and that the mortgage had been foreclosed when the trover suit was tried. O’Hara, as administrator, demanded the coin of Cullen, who refused to deliver it. It did not appear that any administrator had been appointed on the estate of James O’Brien.

On the trial, Cullen requested the Court to charge the jury that the plaintiff, by loaning the $200 from Cullen, and giving his bond and mortgage therefor, was estopped from maintaining the action; and that if the jury believed that any part of the money was in the .plaintiff’s possession, at the commencement of the action, the plaintiff was not entitled in any event to their verdict for such portion.

The Court refused to charge as requested, but stated to the jury in substance, among other things, that if the money belonged to the estate of James O’Brien and was taken possession of and held by Ann O’Brien in opp'osition to the rights of the heir, her right to possession passed to the plaintiff as her administrator, and that the latter could be held accountable only to an administrator of James O’Brien, and not to his heir.

The case having been brought here, it was deliberately determined by this Court that the loan of $200 of the money in controversy having been made by O’Hara in his individual capacity, did not estop him from asserting his right to the money as administrator; that the possession of the $200 obtained by the loan in no manner impaired his right to maintain trover for it, in his representative character, against the defendant; and that the loan itself was as much a conversion as if it had been made to a third person.

It was likewise held that, under our law, when one dies •intestate, the title to his personal property does not go to the next of kin, but remains in abeyance úntil administration granted, and then vests in the administrator, as of the time of the death of the intestate, and that the next of kin becomes entitled only after administration, and then simply to the surplus remaining after the debts of the intestate and expenses of administration are paid.

It was also decided that when, in consequence of the death of the owner, another is clothed with the possession of personal property, and assumes control of it, such casual possessor becomes responsible for the property, and may maintain the ordinary legal remedies, trover included, to defend it and for self protection; and further, that the administrator of such possessor may sue in trover for a conversion done after the death of the latter, and before the appointment of the former.

As we are satisfied that the principles, thus asserted, afford a perfect answer to the leading points presented by the defense, and accepted by the Court below, we do not deem it necessary to quote the reasoning stated in the report. If, as decided in O’Hara’s case, his intestate could have maintained trover on her possession, and he, as her administrator, was entitled to the same remedy for a conversion after her death, and before his appointment, it must be admitted that the right of Mrs. Morton, as administratrix of the estate owning the certificate and stock, to maintain trover, cannot be doubted.

Hpon the argument before us the defendant submitted a point not yet noticed, but which we think may be disposed of in a few words. He maintained that if the transfer by young Morton to Preston -was void, it followed that the certificate only, and not the stock represented by it, was converted, and that consequently the damages could only be nominal.

It is quite certain that _ both parties always before the trial, and thereat, and the court below in the charge, treated the certificate as a muniment of title possessing substantial value; and that the facts clearly show that by means of it the defendant in'error realized in cash the full value of the stock; and we think it cannot be maintained that it had no other value than such as the paper gave it. It was legally the subject of the form of action adopted in this case, and a judgment against Preston for the conversion would have the effect to confirm the title obtained and passed by him, to the stock.

The judgment of the court below is reversed, with costs, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    John Raynor v. William P. Haggard.

      Forcible Entry and Detain®' Act: Tenant at will; Notice to quit. The statute, giving a summary remedy against tenants at will or by sufferance, whose estate has been determined, only allows it when such determination has been by a notice to quit. # Comp. L. §4055, subdiv. 4.

      Heard January 6.

      Decided January 11.

    Error to Ingham Circuit.
    This was a proceeding under the “Forcible Entry and Detainer Act,” to recover the possession of certain premises purchased under a written agreement, and upon which default had been made.
    The plaintiff gave no notice to quit under the statute.
    The facts are stated in the opinion.
    Judgment was rendered for defendant.

      Johnson & Higby, for plaintiff in error.

      The only question in this case is, whether the Court erred in deciding that notice to quit was necessary.
    The defendant was in possession under a contract for the purchase of the premises, one provision of which was, that if he should fail to make the payments as therein stipulated, he should, at the option of plaintiff, be considered a tenant at will; he refused payment, bought up an outstanding title, and claimed to be the owner of the premises. In other words, he disclaimed the plaintiff’s title, by which the relation of landlord and tenant was terminated, and no notice was necessary. — Adams on Eject., 4 Ed. 155; Jackson v; French, 3 Wend. 838; Jackson v. Wheeler, 6 Johns. 272; Jackson v. Deyo, 3 Id. Ifi2; Doe v. Long, 9 G. & P. 778; Doe v. Grubb, 10 B. é G, 816; Doe v. Froud, 4 Bing. 557.

    Our statute, Compiled Latos, § 2,807, requiring notice, to terminate a tenancy at will, does not apply; for in this case the tenancy is terminated by the act of the defendant.

      T. M. Crocker, for defendant in error.
    The one error assigned presents two' questions:

      First. Whether notice to quit is necessary in all cases of tenancy at will, to lay the foundation for the summary pro-. ceeding provided for by the statute under' which plaintiff in error commenced in this case.

      Second. If notice is not always necessary, whether the • denial of plaintiff’s title by defendant, relied upon in this case, was sufficient to determine the tenancy, and warrant, the commencement of the suit.
    1. The statute provides for the determination of ten-' ancies at will and by sufferance, by notice to quit. — 2 Comp. L. § 2,807.

    By thus specifically providing for the determination of those estates, it, by implication, negatives any other manner; And the fourth subdivision of Sec. 4,985, under which this proceeding was instituted, must be construed with the section first named, to which it refers; and this subdivision gives this remedy only where the tenancy has been determined by notice to quit. — 2 Comp. L. 4,985; Huy ser v. Chase, 18 Mich. 98; Woodrow v. Michael, 18 Id. 187; 2d Abbott’s National Dig. 228.

    2. The denial of title did not determine the right of defendant in error to hold. The facts show that defendant entered under a contract of purchase — that when called upon to take the deed and make payment according to the terms of the contract, he assigned as a reason for not doing so, that the plaintiff had no title. This cannot be construed as a. disclaimer. He was declining to pay the plaintiff for the land, and take title under him. Neither rent was demanded, nor possession, by plaintiff. Nothing was said by either that in any way referred to the relation of landlord and tenant.
    The rule that a lessee will not be allowed to deny the title of his lessor is not to be applied in this case. Here the holding commenced under the agreement, which did not create the relation of landlord and tenant, and such relation does not commence until the contract is forfeited. It is only when that relation originally exists by force of the contract, or for want of one, that the rule will apply. See Hughs v. Clarlcsville, 6 Pet. 869.

    The clause in the contract stipulating what the relation of the parties should be after forfeiture, created no new rights, and the notice to quit is not in this case waived. See 8 Mich. 812.

   Campbell J.

Plaintiff brought summary proceedings to obtain possession of land against the defendant, who had originally entered under an executory contract, for a price payable in several instalments, the last of which fell due in November, 1855, but none of which was ever paid. It was stipulated that on any failure to pay, the plaintiff might forfeit the contract, and that after any such failure defendant should consider himself a tenant at will. Three or four years after the last default, defendant, who had previously made promises, said that plaintiff had no title, and that he had bought all the title he wanted from another person, from whom it is found he obtained a deed, giving back a mortgage. Afterwards, in 1861, plaintiff tendered him a deed, and demanded performance of the contract, but defendant refused, claiming plaintiff had' no title. In 1866, plaintiff brought proceedings under the Forcible Entry and Detainer Act, and was defeated for want of notice to quit. He then commenced the present proceedings, and was defeated in the court below for the same reason.

It is quite needless to discuss the question whether any notice to quit was necessary to determine defendant’s tenancy, after he had denied plaintiff’s title and set up an adverse claim. In an action of ejectment, such a question might become pertinent; but the statute giving a summary remedy against tenants at will or by sufferance, whose estate has been -determined, only allows it where such determination has been by a notice to quit. 2 Comp. L. § 4985, subdivision 4.

This statute cannot be enlarged; ancl as this tenancy was not thus determined, the plaintiff must fail in the present proceeding. The judgment below was correct, and must be affirmed, with costs.

The other Justices concurred.


author: Per Guricm.

text:
    Ethan H. Rice et al. v. Spencer S. Benedict.

      JRepoi't of Eef&i'ees: Effect of being entirely set aside: New trial. A Referee’s report entirely set aside, leaves the cause as though it had never been tried, and there is left neither evidence nor finding on which the Court can act; but the issue of fact requires a new trial before any judgment can be given.

      Heard January 5th.

      Decided January 11th.
    Error to Jackson Circuit.

      This was an action of debt founded upon a judgment. The case was referred to referees who filed their report. The case was submitted to the court on exceptions, filed by defendant in error. The exceptions were sustained, the report was set aside, and a judgment rendered for plaintiff below.

      Johnson é Higby, for plaintiff in error.

      Livermore & Wood, for defendant in error.
   Per Guricm.

In this case, the suit haying been referred under the statute, and the report of the referees haying been excepted to, the Circuit Court instead of confirming it in whole or in part, set it aside altogether, and then without any further trial or reference back, gaye judgment for plaintiffs for $646.32 damages, with costs.

This was unauthorized by law. As soon as the report was set aside, the case stood in the same predicament as if the verdict of a jury had been vacated, and until a' new trial should- be had before the Court or a jury or referees, there was nothing left to act upon. A report set aside leaves the cause as if it had never been tried, and there is left neither evidence nor finding; but merely an issue of fact requiring trial before any judgment can be given. Until some competent body has re-tried that issue, the court cannot have any basis for determining which party should prevail, or what amount, if any, was due from one to the other. Every judgment must be based upon some finding, and here there is none whatever remaining in force. The judgment must be reversed, and the cause be remanded for a new trial.


text:
    Franklin Moore v. David B. Ellis.

      Waiver of jurisdictional defect. Want of jurisdiction in a Court over the subject matter of a suit, can never be waived by the parties.

      Appeal: Waiver: Jurisdiction. Where a party against whom a decree was made in chancery, undertook to appeal therefrom, but failed to perfect his appeal within the time limited by law, it was held that no laches of the opposite party in moving to dismiss could preclude his right to have the case dismissed on that ground. — # Oomp. Laws, $8,597.

      Beard and decided January 7th.

    Appeal in Chancery, from Washtenaw Circuit.'
    This was a motion to dismiss the appeal in said cause, for want of prosecution.
    The appeal was taken June 13, 1865. The usual bond was filed on the 10th day of August following, and a transcript of the record was filed in this court on the 6th day of October, 1868.

      L. T. Griffin, for the motion.

      A. Mich, contra.
   The Court held that, as the bond was not filed within the forty days required by the statute. — Oomp. Laws, $8,697 it becomes a jurisdictional fact, and confers no jurisdiction upon this Court, and that no laches upon the part of defendant in bringing on the motion Pan confer such jurisdiction.


author: Graves J.

text:
    James Pearsons v. Caleb Eaton.

      Replevin; Non-suit: Assessment of value of propes'ty: Jury. Where a defendant" in Replevin recovers judgment by nonsuit, or discontinuance, and elects to take judgment for the value of the property taken, and subsequently under a notice of trial, has the value bf such property assessed by the court without a jury.

      Held, competent (JSess. Laws, 1865, p. 325). The intervention of a jury is required only where damages are sought to be assessed.^-# Comp. L. 5037.

      Writ of Wiror: What acts of Circuit Court reviewable. The only decisions of a Circuit Coiut in civil cases which are reviewable upon Writ of Error, are such * as arise upon the record, or such as are made the ground of exceptions upon the trial, and become a part of the record by Bill of Exceptions.
    There is no jurisdiction in this court to review all acts of a Circuit Court. Some things are entirely matters of discretion; and those which do not rest in discretion, but yet form no part of the regular record, can only be reached by some other form of writ, and not by writ of error.’

      Heard January 8th.

      Decided April 13th.
    Error to "Washtenaw Circuit.
    This was an action of Eepleyin to recover the possession of certain personal property.
    After filing a declaration in the causó, and after several continuances and notices of trial, the plaintiff below entered the default of defendant for want of a plea, and subsequently moved to strike the case from the docket for the same reason.
    The Court below ruled that both parties having treated the cause as at issue, it was too late for the plaintiff to deny the fact.
    Subsequently, on motion of defendant’s counsel, it was ordered that the plea of the general issue be filed nunc pro tunc (the files having been lost).
    The ease was thereupon noticed for trial. The plaintiff was duly called and nonsuited, and the defendant having waived a judgment for the return of the property, took judgment for the value thereof, and his costs to be taxed.
    On motion of plaintiffs counsel, ten days were given to move to set aside the non-suit, or settle a bill of exceptions.
    The judgment was afterwards vacated on payment by plaintiff of defendant’s costs, to be taxed.

      Subsequently, on motion of defendant, it appearing that said costs had not been paid, the order vacating said judgment of non-suit was set aside.

      Norris & Uhl, for plaintiff in error.

      Joslin & Blodgett, for defendant in error.
   Graves J.

Error is assigned in this case upon four grounds, namely:

First: That the Court made an order on the 20th of January, 1868, reciting the loss of the files, and allowing the plea of the general issue to be filed on the exparte motion of the defendant in error.

Second: In giving judgment of non-suit when default for want of a plea had been theretofore regularly taken of record, and never opened or set aside, and when no plea had been legally filed or served.

Third: In the assessment of damages and,

Fourth: In vacating the order setting aside the judgment of non-suit and restoring that judgment.

The counsel for the plaintiff in error, in supporting the third assignment of error, contended that the judgment showed that the case was noticed for “trial” and not for assessment of damages, and then argued that the statute required the assessment of “damages” in actions of replevin to be made by a jury upon a notice of fourteen days.

The counsel inadvertently overlooked the statute applicable to this case, and under which the Court was acting in forming judgment.

It is true, that the judgment recites a notice of “ trial,” but it is equally true that no damages were assessed. The defendant in replevin elected to take judgment for the value of the property taken upon the writ, and it was the value of the property that was assessed, and not damages. This was fully authorized by § 5038 Comp. L. as amended in 1865. — (Sess. L. 1865, p. 325.)

The other questions which were argued at the bar, we think are not properly before us upon this writ of error, and we therefore decline to discuss them.

In general there are questions in the progress'of a cause in the Circuit Court, which from their nature, cannot be re-examined in any form, while there may be others reviewable here on writ of error, and others still properly re-examinable, but in some other manner. It may not be easy in every instance to distinguish between questions belonging to these different classes, but we are satisfied that those here presented cannot be reviewed in this way without disregarding the settled course of decision in the common law courts. We are therefore of opinion that as ho error has been shown, the judgment of the court below must be affirmed, with costs.

The other Justices concurred.


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    Isaac Marston v. Catharine Brashaw et al.

      Conveyance: Certificate of Ackrmoledgment; Subscribing. The certificate of acknowledgment of a conveyance is not valid unless subscribed. — # Comp. L. §#7#0.
    A name written in the body of tbe certificate is not such a signature as the law requires.

      Heard April 7th.

      Decided April 13th.

    Error to Bay Circuit.
    This was an action of ejectment- to - recover the possession of certain premises in Bay county. .
    The decision of the case turns upon the validity of a certain deed introduced in evidence by the plaintiff, and which was excluded by the court belo\y for the reason that the officer who took the acknowledgment did not subscribe the same.'

      A verdict was found for the defendant.

      Isaac Marston, for plaintiff in error.
    The record of a warranty deed from Terissa Matevia, to Louis B. Trombley, dated October 16, 1850, offered in evidence by plaintiff, was improperly rejected by the court.
    The signature of an officer at the end of a certificate is not necessary, where his name .appears in the body, and purports to be his act; and no showing or intimation is made that it was not his handwriting. — Smart v. Howe, 3 Mich. 592.

      D. B. Duffield, and Green é Scofield, for defendants in error.
    The record of what purported to be a deed from Terissa Matevia, was properly rejected by the court on both the grounds upon which its introduction in evidence was objected to. The certificate of acknowledgment was not signed; and there was-no evidence of the execution of the deed or certificate. — 2 Comp. Laws, §§ 2720, 2727, 2732, 2742; 4 Mich. 565.

   Campbell J.

Plaintiff brought ejectment, and, in order to show title, offered to introduce the record of a deed from one Terissa Matevia to Louis B. Trombley, and to show that the grantee went into possession, claiming title under it, He also proposed to deduce title to himself from this grantee by virtue of a series of mesne conveyances. The record of the first deed was excluded as invalid, and the subsequent conveyances were also ruled out for various reasons alleged, and plaintiff was therefore subjected to an adverse verdict.

The objection urged against the record of the original deed in the chain of title,_ was that it had no legal certificate of acknowledgment. The name of an acknowledging officer was inserted with a proper date in the certificate as having taken the acknowledgment, but he did not subscribe it, although his name appears as a subscribing witness. It is claimed by plaintiff that a certificate is lawfully signed, if the name is inserted in it by the proper officer, without any technical subscribing, on the same principle which made a signing good under some clauses of the Statute of Frauds, without a subscribing, where intended to serve as a complete execution of a written instrument.

We think the certificate of acknowledgment of a conveyance is not valid unless subscribed. We believe this to be the only safe rule on principle, and we regard it as clearly indicated by the words of the Recording Laws. It is a very common practice among conveyancers to insert the name as well as title of the acknowledging officer in the body of the certificate, and such certificates are very frequently prepared beforehand, so that he writes nothing but his signature. If his name were to be set at the head only, there could be no safeguard against additions to it, and under our laws, which make records prima facie evidence, the original could not always serve, or be found, to prevent frauds from being practiced with comparative impunity. And instead of being judicially informed that certificates have been commonly used without being subscribed, we know the general usage to have been the reverse. If such instances exist, they must in all probability have been the result of accident.

We are not left to any doubt on this subject by the laws themselves. Our statutes which provide for acknowledgment, relate as well to acknowledgments out of the State as to those taken here. The terms applicable to domestic and ioreign acknowledgments are almost verbally identical. But the statute, when providing for acknowledgment in other states, declares that they shall not entitle conveyances to be recorded without a certificate by a proper clerk or other person, setting forth among other things that “ the person whose name is subscribed to the certificate of acknowledgment was, at the date thereof, such officer as he is therein represented to be,” and “ that he believes the signature of such person subscribed thereto to be genuine.” — 2 Comp. L. § 2729. This provision has existed in substance from a very early period, and the legislature evidently took it for granted that all acknowledgments would be thus subscribed. This is also in accordance with the popular understanding of the place of a signature. The few exceptions' which have been recognized, have never recommended themselves to the judgment of the profession, and no unsubscribed signature has been allowed to stand as valid without satisfactory proof that the instrument was delivered by the signer as a binding act, and intended to be complete. There was never any general presumption of that kind, and should any such be now adopted it could only work mischief.

As the only claim attempted to be shown, was under this deed and a possession taken by virtue of it, the subsequent conveyance could be of no importance in the case, if this should be ruled out. We therefore do not deem it important to consider the questions which relate only to those, inasmuch as we think the court rightly excluded the first record.

The judgment should be affirmed, with costs, and the record remanded.

The other Justices concurred.


author: Cecristiancy J. Graves J.

text:
    George Dixon v. the People.

      Witness: Proof of marriage of defendant in criminal case. In a criminal prosecution the reputed wife of the defendant was called as a witness for the people* under objection* whereupon she testified, in substance, that she was married to the defendant in 1865, and lived with him as his wife; that she was previously-married to one Phillips in 1859; that the last time she saw him was in 1860; that she had not heard from him since, but that she had seen a notice in 1862 in the newspaper of the death of a person whom she supposed to be him, and that she informed said Dixon previous to her marriage to him of her relation to said Phillips, and of said death. The prosecution then offered slight evidence, tending to show that a person resembling said Phillips had been seen alive since the marriage to Dixon.

      Held, That this evidence made a prima facie case of a valid marriage in good faith; since the presumption of innocence, that she would not willingly commit the crime of bigamy, by marrying Dixon while Phillips was alive, rendered it obligatory upon the Court, in the absence of testimony to the contrary, conclusively to presume the death of Phillips and the validity of the marriage with Dixon.

      Held further, that after the prosecution had shown an actual marriage between the defendant and the witness, prima facie valid and in good faith, upon which the defendant might reasonably rely as valid, and upon which, on the trial, he did rely and claim as valid, it was not competent for the prosecution to introduce opposing testimony for the purpose of establishing in this collateral manner the invalidity of the marriage, so as to make the alleged wife a competent witness against the defendant. The marriage was not in issue, and the pleadings gave defendant no notice that such a question was to be tried? and he cannot be called upon thus suddenly and unexpectedly to meet the question.

      Heard January 7th.

      Decided April 13th.

    Error to Branch Circuit.
    The plaintiff in error was tried and convicted in the court below for tbe murder of his son James Dixon.
    On the trial, the prosecution offered as a witness one Henry S. Dean, who testified that he was a Justice of the Peace; that he knew Harriet Dixon — claimed to be the wife of defendant; that he married her in 1857 or 1858 to a man by the name of Phelps or Phillips; that he was a tall slim man with sharp features and black hair.
    The prosecution then introduced Harriet Dixon as a witness; and asked her whether she was ever married by said Dean to any other person.
    This was objected to, on the ground that she was the wife of defendant. The Court overruled the objection. Her testimony and the subsequent proceedings are stated at length in the opinion.

      Shipman & Loveridge, for plaintiff in error.
    1. Harriet Dixon was not a competent witness against her husband for any-purpose whatever — not even to prove her former marriage. — Laws of 1861, p. 169, sec. 4.

      It was error in the court below to permit her to be examined as a general witness against him.

      a. The rule of the Common Law excluding husband and wife from being witnesses for or against each other, is analogous to the rule between client and attorney. (1 Greenl. Ev. § 338.) Yet, as to -them, the actual relation need not exist. If the client acts under the belief that it exists, it is sufficient to exclude the communication.— Smith v. Fell,

      2 Curteis, 6, 67; Sargent v. Hampden, 38 Me. 581; McClellan v. Longfellow, 32 Id. 494.

    Why require the actual relation to exist between husband and wife ?

      1). On grounds of public policy, an acknowledged marriage, believed to be lawful by the parties, ought not to be disputed collaterally, nor in a proceeding where it is not put directly in issue — that an opportunity to produce all the evidence of the fact, may be had. — See Campbell v. Twemlow, 1 Price, 81, 88, 89, 90; 1 Greenl. Ev. § 339.

    At all events, Mrs. Dixon was incompetent so long as the legality of her last marriage was in controversy. — 1 Greenl. Ev. § 339; Griggs’ Case, T. Raym. 1; Scherpf v. Szadecky, 4 E. D. Smith, 110; Bull, N. P. 287.

    2. It was not proven that her former husband was living at the time of her last marriage.
    The Phillips described by the witness Bailey, is as much like her former husband as any other. “ tall, slim man, with dark eyes,” but no more so. — (As to similarity of names, see Wickersham v. People, 1 Scam. 128; Hubback on Succession, 103, 465-5.)

    3. But it does appear that her former husband was dead at the time of her last marriage.

      First: By presumption: Her last marriage was March 9, 1865, and it will not be presumed that the man she married December 30, 1859, and had neither seen nor heard of, since April, 1860, was then living.— 1 Greenl. Ev. § 35; Mathews Presump. 29; Williams v. East Ind. Co. 3 East;

      192; Rex v. Twing, 2 B. & Al. 886; Monroe t v. Gardner, 1 Const. R. 828.

      Second: By the newspaper report of his death. Hearsay is admissable to prove death. — Jackson v. Boneham, 15 Johns. 226; Jackson v. Etz, 5 Cow. 814; Doe v. Griffin, 15 East, 298; Scott v. Ratcliff, 5 Peters, 81; Pegram v. Isabell, 2 H. & M. 198; Jackson v. King, 5 Cow. 287; Lewis v- Marshall, 5 Peters, 410; 2 Greenl. Ev. $,418, a — 418 b; Cochrane v. Libby, 18 Maine, 89.

    It is as much in the “ordinary course of business” for newspapers to publish deaths as market reports, yet these are admissable.— Sisson v. C. & T. R. R. Go. 14 Mich. 489; C. & T. R. R. Co. v. Perkins, 11 Id.; Jewell v. Jewell, 1 Hoiv. 219.

    It seems slight proof in this case would be sufficient.— 2 Greenl. Ev. $278, h.

      Dwight May, Atty. General, for the People.
    1. At the trial, the people offered one Harriet Dixon as a witness, and certain preliminary questions were asked her, evidently for the purpose of showing that she was not the lawful wife of the respondent.
    This was objected to, for the reason, that she was his wife, and could not testify in the case without his consent — Laws 1861, § 4-

      (a) . The objection begs the question, and assumes that to be a fact which was then in dispute.
    (b) . This, however, is of little consequence, because it subsequently turns out in proof, that the witness had, at the time of the pretended marriage with the respondent, a lawful husband (Phillips) then living. — 2 Comp. Laws, § 8,208.

    The proof clearly shows this, and the court properly ruled that the witness was not the lawful wife of the respondent.

      (c.) If it was not for the court to decide the fact, it ruled that the witness was not the lawful wife of the respondent, and did right in submitting the question to the jury, under proper instructions.
   Cecristiancy J.

Was Harriet Dixon — claimed by the defendant below to be his wife — properly admitted as a witness, against him?

This is the main question in the case; and the defendant having objected to her introduction, on the ground that she was his wife, the question is to be decided on common law principles, the statute not affecting the case.

It appeared from the preliminary examination of the woman (which must be treated as an examination upon the voir dire, 1 Greenl. Ev. 424), that she had been married to one John or Jonathan Phillips, Dec. 30, 1859, at Green Oak, Livingston County, in this State; that he was a tall, slim man, with black hair, black eyes, and a moustache; that the last time she saw Phillips was the last of April, 1860; that she had not heard -from him since; that she was married to this defendant at Coldwater, Branch County, in this State, March 9, 1865, by a Methodist minister; that in 1862 she read an account in a newspaper of the death of a man by the name of Phillips, whom she supposed to be her husband; that when she married the defendant she told him her husband (Phillips) was dead, and had been dead several years; and she had lived with the defendant as his wife about three years in Branch County, up to the time of his arrest in this case.

This evidence made a very clear and strong prima facie case of a valid marriage in good faith with the defendant; since, without reference to the newspaper report, the presumption of innocence — that she would not commit the crime of bigamy by marrying the defendant while Phillips Was alive — rendered it obligatory upon the court, in the absence of testimony to th'e contrary, conclusively to persume the death of Phillips and the validity of the marriage with the defendant. — Rex v. Twyning, 2 B. & Al. 386; Williams v. East India Co. 3 East, 192; 1 Greenl. Ev. §§ 34, 35; Mathews Pres. Ev. 29.

The only evidence offered to overcome this presumption was that of Dean, the justice who had married her to Phillips, and that of Bailey; Dean did not know whether the name was Phelps or Phillips; he had seen him but once; he was a tall, slim man, with sharp features and black hair. The substance of Bailey’s testimony was, that some ten or twelve years before, he had known a man in Wayne County, Michigan, by the name of John or Jonathan Phillips; that his (P.’s) father and folks lived there, and he with them, and had no other home; that he travelled much, but he did not know of his living in any other county; that he was always called John; that witness knew him for some ten years up to the time witness removed from Wayne County, some six years before this trial (which must have been about 1862). He knew nothing of any marriage of this Phillips with this woman, and had never seen her with him; but this Phillips was a tall, slim man, with dark eyes, and a long nose, and that he (this Phillips) was alive and in Branch County about four years before this trial (or in 1864), and worked for witness some six weeks, and that he saw him again in the same county about two years'before the trial (or in 1866 ).

This is all the evidence which could be claimed to have any possible tendency to show the identity of this Phillips with the former husband of this woman. And upon the hypothesis that it was competent to try the question of the validity of the defendant’s marriage in this collateral manner under the particular circumstances of this case, did this evidence fairly tend to prove the identity of the former husband of this woman with the Phillips who was shown to have been alive in Branch County in 1864 and 1866, after the defendant’s marriage? Dean married this uornan to a man by the name of Phillips in 1859 at Green Oak, in Livingston county, but he had not seen him since. Bailey had formerly known a man by the name of John Phillips, in Wayne county, and had seen him in Branch county, alive, in 1864 and 1866; but whether this was the same Phillips to whom Dean referred, or who had been married to this woman he is entirely ignorant; he knows nothing of any such marriage or of their having lived together, or whether they had ever been recognized as husband and wife.

Neither Dean nor Bailey gives any specific or clearly distinctive mark by which either can know that the other refers to the same person to which he himself refers. Nor does either refer to any particular circumstance or transaction with which the Phillips he had known had been connected, which is known to or recognized by the other, so as to enable them to know that both .are referring to the same person. There was, it is true, an identity of names (though Dean himself did not know whether the name was Phelps or Phillips, but the woman renders it certain that it was Phillips), and there is, so far as can be judged of by verbal description, a general resemblance in personal appearance. But Phillips is so common a name, that of itself it seems little better for identification than that of Smith or Jones. And the description of the personal appearance is so general, without any distinctive or specific mark or peculiarity, that it would probably fit equally well, at least one in every twenty or twenty-five men in the State.

Such merely verbal descriptions of such general features or resemblances, are in themselves of no weight, though they possibly might have some bearing as corroborative or impeaching evidence in case of a conflict between witnesses testifying to or against the identity, upon professed personal knowledge.

Without some very peculiar and distinguishing mark or feature, language is incapable of conveying to the mind of another so accurate a picture of a person the latter has not seen, as to enable him with reasonable certainty to recognize the original. And among the most intelligent men, two might entirely agree in a much more specific description than is here given of a third person; and yet upon attempting to verify the description by the original it might be found that the two are referring to different persons, who, when actually seen, will be found to bear but a slight resemblance, and not likely to be mistaken, the one for the other, by any one who has seen both.

There is also in the testimony in this case, some evidence having a slight tendency at least to disprove the identity. The testimony of Bailey tended to show that the Phillips to whom he referred, resided in Wayne county at the time of his marriage; while that of the wife tended to show that he did not reside in Wayne, but in Livingston. And when Ave consider that the identity, if it existed, must, from the nature of the case, have been easily shown by persons living in Wayne or Livingston county, or both; that no attempt is shown to have^ been made in this way, nor any reason shown why it was not done or attempted, instead of relying upon this inferior and more dubious kind of evidence; we think it was clearly the duty of the court to have excluded the evidence in question, as having no safe or legitimate tendency to establish the identity in question.

Upon this evidence however, the court seems to have assumed to determine that the marriage with the defendant was void, as he admitted the woman to testify against the defendant, notwithstanding his objection.

This might dispose of the case; but as there is to be a new trial, and the evidence of this woman may be again offered, we think it proper further to say, that after the prosecution had shoAvn, as they did by this Avoman, upon the voir dire (for such, Ave think, was the effect of her preliminary examination), an actual marriage, between the defendant and the witness, prima facie valid and in good faith, upon which the defendant might reasonably and honestly rely, as valid, and which upon the trial he did rely upon and claim as valid; it was not, in our opinion, competent for the prosecution to introduce opposing testimony for the purpose of establishing, in this collateral manner, the invalidity of the marriage, so as to make the alleged wife a competent witness against the defendant.

The rule which excludes husband and wife from testifying against each other rests upon sound reasons of public policy, much broader than that of the mere interest of a witness. The object of the rule is to avoid occasion for domestic dissension and discord, to preserve inviolate that mutual confidence which is essential to the marriage relation, the peace of society, and the social welfare.

This confidence, therefore, should not be violated, nor the privilege it gives taken away without a fail- trial of the validity of the marriage (when a marriage in fact prima, facie valid and in good faith has been shown, as it is here).

Such a trial cannot be had when the marriage is not in issue, and the pleadings give the defendant no notice that such a question is to be tried, and he is suddenly and unexpectedly called upon to meet the question without a fair opportunity to produce his evidence.

It is easy to see how a defendant might be wrongfully deprived of his privilege and the confidence of the marriage relation be rudely violated by such a mode of trying the validity of his marriage. While he has no reason to anticipate such a question, the prosecution may arrange their plans and prepare their testimony before hand, and suddenly 'introduce upon the trial evidence, showing, for instance, that the defendant or his supposed wife has been previously married to another person who is still alive; while the truth may be that the former marriage was void by reason of the woman having a former husband living at the time of such marriage, or for some other cause, or a divorce may have been obtained by the woman, or by the defendant, perhaps in another state; but the defendant thus unexpectedly called upon, cannot produce his witnesses nor obtain the record of the divorce in time to avail him on the trial.

There is much difficulty in questions of this kind. It is not safe to lay down any universal rule. Every case must depend, in a great measure, upon its own peculiar facts and circumstances; and our decision must be understood with special reference to the facts of this case.

The judgment of the Circuit Court must he reversed and a new trial awarded.

Cooley Ch. J. and Campbell J. concurred.

Graves J.

The evidence submitted on the question of the competency of the female witness in this case, established á marriage in fact between her and the defendant, contracted and adhered to in good faith, while there was not a scintilla of evidence tending to show that the defendant, or,4 indeed, the witness, had any suspicion from the time of the marriage until the arrest that the legality of the union was at all questionable. Since, therefore, the only difference between’ the relation of these parties and that which obtains in other cases where marriage is a peremptory disqualification consisted in the possible invalidity as matter of law of the marriqge which the parties all along believed to be valid, I think that the reason of the rule which precludes their testifying for or against each other fairly applicable; and on this ground I assent to a reversal of the judgment.


text:
    Peter C. Andre v. Frank Fitzhugh et al.

      Attachment suit: Discontinuance: Sureties on bond: Parties. An attachment suit was commenced against three defendants. To prevent the removal of the property-attached, the usual statutory bond was executed. On the trial, the plaintiff, under Rule 71, discontinued as to two of the defendants, and proceeded against the third, and obtained judgment.

      In a suit subsequently commenced upon tbe bond, defendants objected to a recovery on tbe ground that tbe discontinuance as to tbe two defendants released tbe sureties on the bond.

      Held, that tbe bond given by tbe sureties must be considered as tacitly referring to tbe suit as then constituted m respect to parties, and not as it might afterwards be modified by tbe plaintiff.
    Such a change of parties, as made in this case, would not only transform tbe cause of action from a joint to an individual one, but would necessarily alter tbe operation of tbe contract of tbe sureties, and without their consent.

      Heard April 6.

      Decided April 13.

    Case made from Bay Circuit.
    This was an action of debt brought by the plaintiff upon a certain bond executed by the defendants to the sheriff of said county, to prevent the removal of certain goods seized under attachment proceedings against William A. Cook, Charles M. Smith, and George H. Rozet.
    The declaration set forth the attachment proceedings, the execution of the bond, and the judgment. The defendants pleaded the general issue, and gave notice that they should insist that the discontinuances as to two of the defendants operated as a discharge of the sureties, and that the property so attached, was the property of the defendants as to whom the suit was discontinued, and that Rozet had no interest in the property attached.
    On the trial of the attachment suit, jolaintiff discontinued as to two of the defendants in attachment, and obtained judgment for the whole amount, against the remaining defendant, Rozet.
    In the suit on the bond, the defendants claimed that the discontinuance as to two of the defendants in attachment operated as a discharge of the sureties’ liability.
    They also offered to show that George H. Rozet had no interest in the property attached, but which the court refused.
    On submission of the case, the court found for the plaintiff, and rendered a judgment for the full amount claimed upon the bond ($5,240 02),

      Wm. H. Sweet, for plaintiff.
    1. The discontinuance as against Smith and Clark, and proceedings against Rozet alone, were authorized by Rule 70, Circuit Court Rules, and the correctness of such practice is confirmed by 7th Mich. 880 ; 9th Id. 8; Comp. Laws, § 8890; 8 Mich. 261; 9 Id. 529; 82 Eng.. Com. Law, 851.

    2. Such discontinuance did not discharge the defendants from their liability under the bond. The obligation is to “pay any judgment which may be recoyered by the said Peter C. Andre, in the suit commenced by the said writ of attachment,” &c.
    A judgment was recoyered in said suit, and defendants are therefore bound by their obligation to pay such judgment.
    3. It is no objection to the practice provided for by rule 70, that this rule of court was not in force when the attachment statute was enacted. The Supreme Court have ample power to make rules regulating the practice of the courts, and no rights are affected by the application of the rule in this case. The rule in question does not affect or change the attachment law; and neither by intendment nor implication can the discontinuance as against one or more defendants, be construed, under the laws, to take away the right a plaintiff may acquire as against the remaining defendants under the attachment.

      Grier & Macdonald, for defendants.
    1. The declaration alleges that the Sheriff, by virtue of said attachment, “seized certain property of the defendants in said writ named.” The plea alleges the property to have been that of the parties against whom the action was discontinued. On the trial, defendants offered to prove that fact, but were not allowed to do so. To which they alleged exceptions.
    The bond was conditioned for “the payment of any judgment which «may be recovered by the plaintiff in the suit commenced by such attachment.”
    We claim that this was such an alteration or change in the action, that would have dissolved the attachment, had no bond been given, and which released the bond.
    It is a general principle that after an attachment or holding to bail, the plaintiff cannot alter his writ to the injury of a subsequent attaching creditor, or bail.— Willis v. Croolcer, 1 Piclc. 204; Putnam v. Hall, 8 Id. 445; Fair-field v. Baldwin, 12 Id. 888; Langly v. Adams, lft Maine, 125; Moulton -v. Chapin, 28 Id. 505; Peck v. Sill, 8 Conn. 158; Denny v. Ward, 8 Pick. 199; Donelson v. Andrews, 1 Id. 156; Clark v. Foxcroft, 7 Greenl. 848; Fairbanks v. Stanly, 7 Shep. 296; Clough v. Monroe, 84 N. II. 881; Bradhurst v. Fnoin, 8 Ired. 495; Smith v. Shaio, 8 Id. 288.

    When it does not appear from the record that the amendments are for the same cause of action as the original declaration, the burden of proof rests upon the party seeking to establish that they are for the same cause of action.— Aitstin v. Burlington, 84 Vt. 506.

    And such bonds, as the one given in this case, are in effect merely special bail, and governed by similar rules.'— Drake on Attachment, 812; Garrett v.- Tinnin, 7 How. (Miss.) 465.

    Amending a declaration by adding a count upon a cause of action which could not be given in evidence upon the original declaration, or amending a defect existing at the time of entering bail, and which would have defeated the plaintiff’s action, but for such amendment, will discharge the bail. — Carrington v. Ford, 4 Cranch. C. Ct. 281; Hyer v. Smith, 8 Id. Ift7; Payen v. Hogson, 1 Id. 508; 1 Abbott’s Nat. Dig. 79, 227.

    In an action of assumpsit, if another person be made a co-plaintiff or co-defendant by amendment of the writ, by leave of court, the attachment of property is thereby dissolved. — Moulton v. Chaptin, 28 Maine, 505; Fullerton v.

      Campbell, 25 Penn. State B. 8p5; Denny v. Ward, 8 Pick. 199; Vincent v. People, 25 111. 500.

    A debt due from all of the defendants jointly, has no identity with a debt dne from one of them oniy, and a discontinuance, by leave of court, as to one of them is another suit, and discharges the attachment. — Peck v. Sill, 8 Conn. 158.

    Discontinuing, as to the other defendants, was a materia] alteration in the contract of the obligors in the bond, into which .they originally entered, and by which their liability was changed. They had a right to insist on the terms of their contract as originally made, and it was not competent for other parties, without their consent, to increase their liability. By so doing, they destroyed its validity.— Langly v. Adams, Jfi Maine, 125; Bean v. Parker, 17 Mass. 602.

    And it must be remembered that, until sued in this case, the defendants have had no day in court. They have never before had an opportunity to object to the discontinuance as to Smith and Cook. And it is against every principle of judicial action to allow such an amendment to be made without notice to the sureties. — Montgomery v. Henry, 10 Mich. 19.

    The true meaning and effect of the condition of this bond, upon a just construction of the terms in which it is expressed, and in reference to the object and purpose for which it was made, is to bind the obligors to pay to the plaintiff whatever sum he should recover against the defendants in that action. No recovery has been had against them, and consequently the plaintiff can have no claim against the present defendants for the non-performance of their contract. They never took .upon themselves any obligation to pay any judgment that might be rendered against any one of the defendants.— Tucker v. White, 5 Allen, 822.

    These rules allowing the discontinuance as to defendants are in derogation of the common law, and should receive a strict construction in such cases as this.

      The defendants were not parties to the suit in which the amendment was made, and Smith and Cook were no longer parties, upon the amendment being made. Rozet was then the sole defendant, and by rule, the action proceeded as though commenced against him alone. And the effect of amendments must be confined to the parties to the suit.' — • Emerson v. Upton, 9 Pick. 167; Wight v. Hale, 2 Gush. 492.

    The rule authorizing a plaintiff to discontinue against one or more defendants, was not designed to change any legal rights, but merely to enable a plaintiff who had sued more parties than he could recover against, to amend his case by declaring against his real debtors.— Winslow v. Herrick, 9 Mich. 880.

    Now what were the legal rights of the obligors in this bond as secured by the statute under which it was given? The statute under which it was given, was enacted and became a law by the revision of the statutes in 1846. And those sections providing for the bond, have remained unchanged up to the present time. When this statute became a law, the Supreme Court had no power to make rules authorizing the discontinuing of cases as to one or more defendants, or the addition of new defendants; but that power was given by the Session Laws of 1851. The Supreme Court, in pursuance of that statute, in. 1853 framed the rules which now exist on that subject. — Revised Stat. of 1846, 416, 851; Session Laws of 1851, 109.

    'Whatever would discharge the bond under the statute when it became a law, will have that effect now; there being no statute or rule of law providing to the contrary, or continuing the b'ond in force.
    After the discontinuing as to Smith and Cook, it was no longer the same case. If it was the same case within the meaning of the statute, because the discontinuance was authorized by the rules of court, then had the plaintiff brought in new defendants, it would still have been the same case, for that course is equally authorized by the rules, aud the obligors in the bond would be bound to pay any judgment rendered therein, in favor of the plaintiff. Such a result would be rank injustice; but if plaintiff’s view of the law is correct, the conclusion is inevitable.
   Graves J.

In 1865, the plaintiff commenced a suit by attachment in the Circuit Court for the county of Bay, against William A. Cook, Charles M. Smith and George H. Rozet; and the sheriff levied the writ upon a large amount of personal property in the hands of one Charles Orton. In order to prevent the removal o'f such property, Orton caused to be executed and delivered to the sheriff, a bond as prescribed by the statute, Gomp. Laws, §§4754, 4755, with the condition, that if the obligors should well and truly pay any judgment which might be recovered by the said Peter C. Andre, in the suit commenced by the writ of. attachment, within sixty days after the judgment should be recovered, that then the obligation should be void, but otherwise of force. The present defendants were the makers of that bond. Upon the trial of the suit commenced by the attachment, the plaintiff, by permission of the court, under rule seventy-one of the Circuit Court, discontinued as to the defendants William A. Cook and Charles M. Smith, and proceeded against the defendant Rozet, against whom he recovered judgment for $4,692 61 damages, and $45.32, costs.

The bond given to the sheriff was subsequently assigned to the plaintiff by whom this suit was brought against the present defendants as makers of that bond, and the breach relied on consisted in the non-payment of the judgment in attachment against Rozet alone. In this action upon the bond, the defendants took the position that the discontinuance by the plaintiff, as to the two defendants, Cook and Smith, discharged the makers of the bond from their liability, or at all events precluded tlie plaintiff from charging them beyond the value of the interest of Rozet in the property released.

The court below being of opinion however, that the statute gave the plaintiff the right to demand ■ judgment upon the bond for the full value of the attached property, notwithstanding the discontinuance as to Cook and Smith, and without regard to the value of Rozet’s interest in that property, refused permission to the defendants to show that Rozet was not the owner of any of the attached property, and awarded judgment against the defendants for the whole amount of the judgment in the attachment suit, with interest.

That the statute under which the bond was given, if applied according to the literal import of the language, may be thought to support the view taken by the Circuit Court is very probable, but we think that a just interpretation of that statute must necessitate a different result.

We are led to this conclusion, by considering the object of the statute, the nature of the contract evidenced by the bond, and its connection with the proceeding to which it belongs, and also the serious consequences which a contrary judgment would allow, and which therefore we are not to suppose the legislature intended.

The bond to be given by the defendant or person found in possession of the goods is to be executed by sureties. When executed, it must be considered as tacitly referring to the suit as then constituted in respect to parties, and not as it should possibly be thereafter constituted at the instance of the plaintiff to avoid defeat. The sureties, on .entering into the contract, measure the risk they incur by the chances which the plaintiff has to recover against the defendants in the writ, and the ability of the latter in case of defeat to respond to the plaintiff or the sureties themselves, if called on. As the writ only issues against i;he particular defendants, after a showing upon oath by the plaintiff or some one in his behalf, that the defendants named are indebted to him, it cannot be presumed that the sureties suppose themselves to engage to abide a discontinuance by such plaintiff as to part of the defendants, and still remain liable.

Any such change of parties, however, as that made by the plaintiff in this case, would not only transform the prosecuted cause of action from a joint to an individual one, but would necessarily alter the operation of the contract of the sureties, and without their consent.

It would allow the plaintiff to recover, when, but for the discontinuance, he would be defeated; and, therefore, upon the theory of the plaintiff, would fix a liability upon the sureties which could not otherwise exist.

It would also have the effect to compel the sureties to look for indemnity to such defendant, or defendants, as should be left in the case at judgment, instead of the whole number of defendants named in the writ at the giving of the bond; and it might well happen that in the responsibility of the latter, the sureties would know themselves to be safe, while in that of the former they would know themselves to be without remedy.

It is believed that these considerations are sufficient to show that the construction contended for by the plaintiff is untenable, and that the judgment of the Circuit Court ought not to be supported.

The judgment must be reversed, with the costs of both courts.

The other Justices concurred.


text:
    The People ex rel. Board of Supervisors of Cass County v. The Townships of Porter and Calvin.

      County bond; Liability of townships. The County of Cass, for the purpose of aiding enlistments under the President’s Proclamation, adopted resolutions providing for the issuing of bonds, and that each town might, if it saw fit receive a number of them equal to its quota of men, and make its own distribu.tion; «and that if any town failed in raising its quota, it should retain the bonds and apply them on its proportion of county taxe's when redeemable.
    In accordance with said resolution, the various towns received said bonds according to their quota. Subsequently, the Legislature legalized the action of the several local bodies, and provided that whenever county bonds had been loaned to any township the amount of such bonds should be assessed upon such town receiving the same, &c.

      Heldy that said bonds must be considered not as created for county purposes, but as lent to the various townships so receiving them, and they were severally bound to raise the money to pay them in full by assessment, without reference to the proportion which the assessable property in the town bears to that of the whole county; and that though the county was responsible to the holders, yet, as between the county and town, the latter were the principal debtors, and the former only surety.

      Held further, that any money paid by the county for principal or interest, being money lawfully paid for the use of the towns, entitled the county to interest thereon from the date of its payment.

      Heard April 10th.

      Decided April 13th.

    Mandamus to tbe supervisors of tbe townships of Porter and Calvin, in Cass County, to levy a tax for certain county bonds received by them.
    In December, 1863, the supervisors of Cass County passed the following resolutions:
    “ Whereas, By the late proclamation, of the President of the United States, a call has been, made for 300,000 men. for the military service of the United States, to he furnished by volunteering, and in case any deficiency shall exist in the quota assigned to any State, then such deficiency shall he made up by draft, to commence on the 5th day of January, A. D. 1864; and, whereas, it becomes a loyal people to cheerfully respond to such call of the President; and, whereas, the offering of county and local bounties, in addition to such bounties as are already offered by the Government, may tend to fill up the quotas of the several districts and States, and thereby sustain and uphold the Government; now, therefore, be it resolved by the Board of Supervisors of Gass County, in special session assembled, that for the purpose of carrying out the object above mentioned, it is expedient to offer a county bounty of one hundred and fifty dollar's, and such bounty is hereby offered, to be paid to each volunteer who shall so enlist into the military service of the United Slates, under said call of the President of the United States, and who shall be accredited upon tbe quota of any sub-district in said Oounty of Cass, and to each man who shall be drafted to fill said quota, and who shall actually go into said service, either by himself or his accepted substitute, and that said bounty of one hundred and fifty dollars shall be paid in the manner and form hereinafter set forth:

      2d. And be it further resolved, that said bounty shall be paid in the manner and form following, that is to say; bonds of the County of Cass in the sum of one hundred and fifty dollars each, with interest coupons attached, and issued by the Treasurer of Cass County, and countersigned by the chairman of the Board of Supervisors, and registered and sealed by the County Clerk, with the seal of the Circuit Court of said county, and a record thereof kept by said clerk, showing the date of issue of the same, and the township to whose order the same is payable, which said bonds shall be payable in five year's, and redeemable at any time within five years from the date thereof, at the pleasure of said County of Cass, and redeemable as hereinafter mentioned and provided, and which said bonds shall draw interest at the rate of six per cent, per annum, and payable annually. Said bonds shall be, dated on the first or fifteenth day of the month following the actual time of issue.
    3d. Aud be it further resolved, that the County Treasurer he and he is hereby authorized and instructed to deliver to each township, upon the presentation of an order signed by the township hoard, as many of said bonds as shall equal the "number of men required to be furnished by the township, under the call of the President hereinbefore mentioned. Said bonds to be used’ by the several townships for the purpose of encouraging enlistments, in any way the townships, township boards, or township committees may direct.
    4th. And be it further resolved, that in case any township shall fail to fill its quota in the manner and by the time contemplated by the foregoing resolutions, said township shall have the right to hold any remainder of county bounty bonds in its possession, until said bonds are called in for redemption, at which time said bonds shall be received'by the County Treasurer in part payment of the county taxes charged to said township.
    Besolved, That the Treasurer of Cass County be, and he is hereby directed, to fill the blank in the fourth and fifth lines of the bonds to be issued as an enlistment bounty by the County of Cass, so as to make them payable to. the several townships or bearer.
    On tbe day of January, A. D. 1864, the Treasurer of tbe County of Cass delivered to the township of Porter twenty-eight bounty bonds, payable to said township or bearer, and on tbe same day twenty-two bounty bonds to tbe township of Calvin, payable to tlie township of Calvin or bearer. An entry of the facts, with the number of tbe bonds and their date, was made by tbe county clerk. These bonds were payable in five years, or sooner, afc the option of the county, and drew six per cent, interest.
    The other towns received their share of the bonds that year. The interest on these bonds, down to 1867, was paid by the towns, each paying the interest on the bonds it took.
    In 1866 the board directed each town to raise by tax the amount of the bonds taken by it, and interest to the 1st of February, 1867, that said bonds might be paid.
    Eleven towns obeyed, and paid their bonds. Three did not — Calvin, Porter and Newberg — and the county paid the interest on their bonds out of its general fund.
    In October, 1867, the board apportioned to each of these towns a sum, as a county tax, sufficient to pay its bonds, interest due February 1st, 1868, and back interest paid by the county. Newberg paid up. Calvin and Porter did not, and the county paid the interest on their bonds out of its general fund.
    At its October session, in 1868, the board again apportioned to each of said towns of Porter and Calvin the sum required to pay the bonds taken by each, interest to February 1st, 1869, and back interest ; said sums being apportioned as a part of the county tax.
    The supervisors of Porter and Calvin townships failed to levy the same.
    On the 5th day of February, 1864, the Legislature passed an act for the purpose, among other things, of legalizing the acts of municipalities of this State in issuing bounty bonds, and providing for their payment by a tax, and in the case of counties, by a tax upon the property of the county, or upon the property of the townships loaning or using said bonds. — Laws of 1864, P- 54.

      D. Blackman, for relators.

      H. H. Riley, for respondents.
   Campbell J.

These are applications for writs of mandamus to compel certain towns in Cass County to levy such sums as are required to pay principal and interest on certain county bonds alleged to have been lent to the towns upon the condition, afterwards sanctioned by the legislature, that the towns should have the amount apportioned to them as their share of county taxes. The claim made by the respondents, is that all these bonds were properly in fact, as well as in form, merely county obligations, and that the money to pay them should be apportioned upon the property of the entire county by its valuation, instead of being a town charge to the extent of bonds borrowed by or given to each town. The origin of the transaction was as follows :

In November, 1863, the Supervisors of Cass County passed resolutions, proposing to give a county premium or bounty on enlistments, of a bond of one hundred and fifty dollars per man, and appointed how the distribution should be made. In December, before any action had been had, they rescinded such of the resolutions as provided for direct action of the county authorities in paying the bounties, and in lieu thereof adopted another series of resolutions, providing that each town might, if it saw fit, receive a number of bonds, equal to its quota of men, and make its own distribution. These resolutions further declared that, although it should fail in raising its quota, each town should nevertheless retain the bonds and apply them on its proportion of county taxes, when redeemable.

In February, 1864, the action of the several local bodies incurring these obligations was legalized, and it was among other things enacted, that, “whenever the faith of any county has been pledged, and bonds issued and loaned by such county to any township, ward, supervisor district, or city therein, the amount of bonds so taken, with interest, as provided therein, shall be assessed upon the township, ward, supervisor district, or-city, taking the same, and shall be collected and paid at the same time and in the same manner as other county taxes are collected and paid.” — L. 1864, p. 54.

It is 'claimed by the respondents, that these bonds were not lent to the towns, but that the town officers merely acted as county agents in disbursing the bounties offered on behalf of the county. In this connection much stress is laid upon the first resolution, which declares in so-many words that it is expedient to offer a county bounty of one hundred and fifty dollars per man. The original plan provided for carrying out this general resolution was purely one for county purposes, and did not leave the control in the townships. And, had the original plan been carried out, there could have been no doubt on the subject. But the whole plan of distribution, on which the first resolution is silent, was changed. The bonds were only to be delivered to each- township when demanded by its own board. They were to be used' in such way as each town might direct for itself. If not used, they were nevertheless to be retained by the towns; and, instead of being returned for cancellation, were to be applied as cash upon their quota of county taxes.

■ Under these circumstances we can have no difficulty in holding that- they were lent to the towns, and assessable upon them. The object of the statute is plain that the county should not be compelled to provide from its own means for payment, but that the towns should raise the money to pay them. A failure of the towns could not in law exempt the. county from paying the holders; but, as between themselves,- the town was the principal debtor, and the county only- bound as surety.

This being: so, it folloivs that any money paid by the county for principal, or upon the interest due upon that principal,, was money paid to the use of the town. Where such a transaction is authorized, we can.see no good reason why the same rule should not apply .which entitles individuals paying money to the use of others to recover interest on such payments.. It is in no sense compound interest, for the debt created in favor of the creditor is the sum which he paid to the debtors use, and it can make no difference whether this sum was a liability of one form or another. The creditor recovers back the money which he paid, with interest upon it, because, as to him, it is so much money lent to the one whose debt he has paid. And interest runs from the time of such payment.

These considerations will enable the parties to ascertain the proper amounts to be raised, by a simple calculation. It only remains to be considered whether we shall issue a a mandamus to compel action by the towns.

It was admitted on the hearing that there had been no bad faith in the neglect to raise the money, but that the difference of opinion had been honest, and that our decision would be submitted to without a writ. Technically the writ cannot issue precisely as prayed, inasmuch as the roll for 1868 has run out. The law, however, seems to contemplate that a special roll may be made for the collection of these taxes. But we have thought it best, under all the circumstances, not to require this unusual step to be taken, but to leave the matter to be provided for in the taxes of 1869. We shall, therefore, suspend action on the writ at present, without costs to either party, leaving the proceedings open, and not dismissing them.

The other Justices concurred.


author: Cooley Oh. J.

text:
    John Youell v. Henry Allen et al.

      'Specific performance: Correction of mistake: Entire contract: Severance. If a material error in a written contract for tlie conveyance of lands can be corrected on parol evidence, in a suit for tlie specific performance of tlie contract, and performance decreed according to the understanding as found upon such evidence, it should only be done where the mistake is clearly made out beyond cavil.

      Where complainant contracted for the exchange of a parcel of land owned by Mm, for two parcels owned by two different persons, and filed.his bill for specific performance, alleging that one of the parcels to be conveyed to mm was incorrectly described in the contract by mistake, and it appeared that such parcel had been sold to a purchaser not shown to have been aware of the mistake. Held,
    1. That, assuming the proof of the mistake to be clear, there could be no relief as against such purchaser.
    2. That, as the contract of exchange was entire, and not capable of severance, • there could be no relief against the owner of the other parcel.

      Heard January 11th.

      Decided April 13th.

    Appeal in Chancery from Kent Circuit.
    This was a bill to enforce the specific performance of a certain contract for the exchange of land. The bill was heard in the court below on pleadings and proofs, and dismissed.
    The facts are stated in the opinion.

      L. Patterson, and Moore & Griffin, for complainants.

      Jno. T. Holmes, P. Smith Jr. and G. V. N Lothrop, for defendant.
   Cooley Oh. J.

The complainant files his bill to enforce the specific performance of a contract by which Allen agreed to convey to him a parcel of land, and Franklin Tooley, a certain other. parcel, in exchange for hotel premises owned by complain- . ant, and then occupied by one Granger. The contract was in writing, and the land to be conveyed by Franklin Tooley was therein described as the south west quarter of section fifteen, in township six north of range eleven west, excepting therefrom 60 acres previously sold off from the west side; but the complainant avers in his bill, that the true description was the south east quarter of said section, except, &c.; the word west being written in the contract instead of east by the mistake of the person drafting it; and the complainant asks that for the purposes of this suit the contract may be treated as if it read as it was intended to read, and that he may have specific performance thereof with the mistake corrected.

Noah Tooley is made party defendant as a subsequent grantee of the premises which complainant alleges were to be, and should have been included in the contract, and he is charged in the bill with haying received a deed of the premises with knowledge of the contract and in fraud of complainant’s right. This charge is denied by answer.

The question whether a material error in a written contract for the conveyance of lands can be corrected on parol evidence, in a suit for the specific performance of the contract, and performance decreed according to the understanding as found upon such evidence, is one of no little difficulty, and upon which the authorities are irreconcilably at variance. If it can be, the evidence of the mistake upon which the court should give relief ought to be so clear as to establish that' fact beyond cavil. No such clear evidence appears in this case, but, if we find the mistake at all, it must be upon inferences which are not of a very satisfactory character.

If, however, the mistake were clearly established as against Franklin Tooley, the complainant must still fail, because there is no evidence in the case which brings home to the defendant Noah Tooley a knowledge of such a contract as is set out in the bill. As to him, the contract is neither admitted nor proved; and as the exchange of complainant’s place for the two farms was one entire contract, and not capable of severance, it is impossible that he should have relief. Without, therefore, investigating the various other objections which are made to the relief sought, a decree must be entered affirming the dismissal of the bill with costs.

The other Justices concurred.