author: Martin Ch. J.: Campbell J.:

text:
    Solomon B. Bliss v. Valorous A. Paine and another.
    ’Where a notice is attached to a declaration, that a note, a copy of whioh is given, will he read in evidence under such declaration, and the sheriff returns that he has served on the defendant a copy of the declaration and notice, this, return necessarily implies service of a copy of the note, since that constitutes an essential part of the notice.
    Where the testimony of a Notary was taken on commission to show the presentment and dishonor of a note, and notice by him to the parties, and he only stated in reply to the interrogatories that from entries in his register it appeared that the note was dishonored and notice given, but did not say who presented the note for payment, or who served the notice, it was held that this reply was not admissible in evidence.
    Where a cause is tried by a Circuit Judge without a jury, and improper evidenoe is admitted to establish a material point, and the nature of the case is such that it can not be presumed that other evidence was given on that point, the Supreme Court will reverse the judgment, notwithstanding the bill of exceptions does not state that all the evidence is set forth.
    The answer of a witness under a commission is not admissible unless it would, have been admitted had he been examined in open Couffc on the stand.

      Heard July 19th.

      Decided December 9th.

    Error to Saginaw Circuit.
    The suit was commenced in the Court below against Bliss by the filing and service of declaration. The declara,-, tion contained the common counts only, appended to whioh was the following notice:
    “To the within named defendant: Take notice that on the trial of this canse a certain note of whioh the following is a copy, will be given in evidence, under the money counts of the within declaration, according to the statute.
    J. G-. Sutherland, Plaintiffs’ Attorney.”
    Then followed a copy of the note, which was indorsed by Bliss.
    The sheriff’s return of service of the declaration was as follows :
    “ State of Michigan, County of Saginaw, ss. I do hereby return that, on the 19th day of February, 1859,1 served oís, the within named Solomon B. Bliss a declaration, of whioh the within is a copy, and upon which was endorsed a notice. of which the notice hereon is a copy, by delivering the Same to him.
    J. W. Turner, Sheriff.”

    On the trial by the Court without a jury, plaintiffs offered the note in evidence under the above notice, which was objected to on the ground that it did not appear from the return of the sheriff that a copy of the promissory note was served on defendant. The objection was overruled, and the note read in evidence.
    To prove presentment and dishonor of the note, and notice thereof to Bliss, the deposition of Gardner Spring, Jr., taken on commission, was offered. The third and fourth interrogatories addressed to him, and the answers thereto, were as follows:
    “ Third Interrogatory. •— If in answer to the last preceding interrogatory, you say said note was in your hands for the purpose of presenting the same for payment, state whether you presented the said note for payment, and at what place, and to whom you presented the same; state by .whom the said note was protested, and by whom the instrument annexed to said note and attached to the interrogatories purporting to be a protest was marie: state what notice, if any, of such protest was served on the endorser, whose name appears on the back of said note as S. B. Bliss, and in what manner served.
    “ Fourth Interrogatory. — If in answer to the last preceding interrogatory, you say you served notice of protest of said note on said indorser S. B. Bliss, by sending the same by mail, state when and where such notice was mailed, to what person and place directed, and whether the postage was pre-paid, and upon what inquiry and information touching the place of residence of said S. B. Bliss you mailed as aforesaid the said notice of protest.”
    “ Third.— In answer to the third interrogatory:

      “Answer. — From entries in my notarial register, made at the time, in the regular course of my business as Notary for the Mechanics’ Bank in. the city of New York, it. appears that on the 25th day of May, 1854, said note was. presented during banking hours at the counter of the Metropolitan Bank, in the said city, to the paying teller of said Bank, and payment demanded and refused. The note was thereupon on the same day protested by me for non-payment, and the certificate of protest referred to in this interrogatory, and annexed to the said note, marked “A,” was made and signed by me at the time. A notice, of which the annexed exhibit marked “B” is a copy, was forwarded, as appears by the entry in my said register, by mail, as is more fully stated in my answer to the next succeeding interrogatory.

      '■’■Fourth— In answer to the fourth interrogatory.

      '■'■Answer. — A notice, of which the annexed marked “B” is a copy, was, as appears by the entries in my said regis-» ter, made at the time and in the usual course of my business as above stated, deposited, postage paid, in the post office., of the city of New York, on the 26th day of May, 1854, addressed to S. B. Bliss, and enclosed under cover addressed to A. E. Foot, Esq., assistant cashier, Cleveland, Ohio. There was no memorandum on the note itself showing the resb dence of said Bliss, and none of the parties upon the paper resided in this city, of whom inquiry might be made : consequently I was without knowledge or information or sources of information as to the residence of said Bliss, and accordingly the notice for him was sent under cover to the holder of the paper, as is the invariable custom in such cases.”
    No cross interrogatories were attached to the commission
    The answers as above given were objected to by defend-, ant on the trial, on the ground that the witness did not testify of his own knowledge, nor did he state that the., entries in the register were made by him or under his, direction, or that he knew the statements therein were, true. The Court overruled the objections.

      Other objections were taken which are not material to be noticed. The Court gave judgment for the plaintiffs below, and the case was brought to this Court for review on the exceptions taken to the rulings on the trial.

      J. B. Dillingham and Maynard & Meddaugh, for plaintiff in error:
    1. In order to have rendered the note admissible, it first should have been made affirmatively to appear that a copy of the note was served with the declaration.
    2. The witness, Spring, testifies that he was a Notary Public; that “from entries in his notarial register, made &e., it appears,” &c.
    In such a case, to render the testimony admissible, it should appear that the witness recollects having seen the writing before, and that at the time he saw it, he knew the contents to be correct: — 1 Greenl. Ev. § 437; 2 Phil. Ev. 917, and notes thereto; 15 N. Y. 485; 16 Wend. 596.
    But the witness must have made the memoranda or writing himself: —16 Wend. 596; 6 Pick. 222.
    And the opposite counsel is entitled to see the memo, randa and to cross-examine the witness in reference to them: — 1 Penn. 414-415; 1 C. & P. 522; 2 C. &. P. 603.
    We are aware that there are instances where memoranda may be used by a witness in which none of these things are required. But they are cases where the witness merely uses them to refresh his memory; when, having refreshed his memory from them, he is able independently of them to testify to the facts: — 1 Greenl. Ev. §437, and the cases above cited.

      Sutherland & Miller, for defendants in error :
    I. The note was properly admitted in evidence.
    1. The Court will presume that all necessary evidence was introduced to sustain the judgment unless the bill of exceptions shows the absence of such proof; for error must affirmatively appear: — Burnham v. People, 3 Mich. 195; 6 Mow. 31; Farmers and Mechanics' Bank v. Troy City Bank, 1 Doug, 457, 465; 1 Eng. 431; Ibid. 456.
    The statute requiring a copy of the note to be served with the declaration applies only to cases where parties are joined who could not be sued jointly independently of the statute: — 1 Benio, 105.
    A copy of the note was added to the declaration filed, and the plaintiffs below were at liberty to show service of a copy of the note with the declaration by evidence on the trial. Such proof will be deemed to have been given, in order to ‘Support the judgment, unless the contrary appear.
    2. The note was admissible under the common money counts: —16 Wend. 659; 7 Wheat. 35; 12 Johns. 90; 7 Johns. 132; 4 Fost. 191; 2 Seld. 19.
    II. There is no error in the admission of the answers of Spring to the 3d and 4th interrogatories. The exception covers all of the answers, and a part of each is unquestionably admissible, that is to say:
    1. The protest mentioned in the answer to the third interrogatory, and the statement that the witness made it.
    2. What is stated in the answer to the 4th interrogatory in regard to none of the parties to the paper residing in New York, and the absence of any note or memorandum as to where they resided, and the custom to send to holder of the paper.
    The objection, not being good as to all the testimony objected to, could not be allowed without doing a wrong to the other party. In such case the exception not pointing out the part inadmissible, and not being confined to that, can not be maintained: — 1 Pet, 328; 12 Wend. 504; 8 Wend. 109; 4 Metc. 235; 13 Pet. 302.
    III. The case was tried by the Court, without a jury, and all the errors assigned consist in the admission of evidence objected to. Error can not be assigned for admission of improper evidence when there is no jury: — 9 Pet. 182; 17 Mow. 6.
   Martin Ch. J.:

This action was tried by the Court without a jury. The declaration is in assumpsit upon the common counts, and underwritten and endorsed upon the declaration was a notice that, upon the trial of the cause, a note — a copy of which was given and referred to in the notice — would be read in evidence under the money counts. This notice was given under the provisions of sections 4161 and 4426 of the Compiled Laws, which declare substantially that the plaintiff may give in evidence under the money counts such bills of exchange and promissory notes as he shall notify the defendant that he intends to claim judgment upon, if copies be served upon the defendant, and filed with the declaration. In the present case it is not pretended but that a copy of the note was filed with the declaration, but it is claimed that none was served upon the defendant. I can not so read the sheriff’s return of service. That is to the effect that he served upon the plaintiff in error (whom for perspicuity I shall hereafter denominate the defendant) a copy of the declaration and notice, and this necessarily implies service of the copy of the note, as it was an essential part of the notice, without which it was no notice. No other construction of the return would be reasonable, and so we must construe it, as, in the language of my brother Campbell in Burkam v. Trowbridge, 9 Mich. 209, and which I adopt and apply in the consideration of the subsequent questions arising in this case, “ no Court is at liberty to strain the meaning of terms” (and certainly not words) “ so as to render them senseless and nugatory, when a sensible meaning is reasonably apparent.” The note offered to be read in evidence was the original, of which a copy was endorsed upon the declaration and referred to in the notice, and was therefore properly allowed to be read as evidence of the defendant’s liability.

Gardner Spring, Jr., a witness residing in the city of New York, was examined upon written interrogatories, and it is assigned as error that the Court allowed his answers to the third and fourth interrogatories to be read. The questions were clearly relevant and proper, but the answers it is insisted are not competent testimony. The counsel for the defendant does not regard them as evasive, but in substance rests his objection upon the ground that the writing can only be used to refresh the recollection of the witness, who mu3t still testify from recollection, but who does not testify that the memorandum was made by himself; and also upon the non-production of the memorandum for inspection and cross-examination. These being his objections, are the only grounds of error I can consider; if an objection is not good without a reason given, it is not good for any but those given. I can discover no error in the ruling of the Court. Whether the answers of themselves are sufficient to authorize the judgment is one question, and one with which we have no concern; but that they are competent as far as they go, is another. These answers are responsive to the interrogatories, and in my view are in the precise usual language in which such a witness would make them. See Burkam v. Trowbridge, 9 Mich. 209. He was a Notary Public residing in the city of New York, and kept an official registry of his acts as such notary. The note in question came into his hands for demand, and, if necessary, protest. Under circumstances like those in which he appears to have been placed, it can not be reasonably expected that he could retain a distinct recollection of each and every official act ofliis, and of the protest of this particular note. He had no immediate interest in the subject matter, and the duty of presenting and protesting the note, and of giving notices' of non-payment, was within the general scope of his official duties, and not a special employment upon which his attention would be in any degree fixed, or which he would be likely or probable to fix in his recollection* This common experience teaches; and the law does not require a distinct recollection of every official notarial act, for it does not require impossibilities. Reading the answers in a reasonable light, we must infer that he performed the acts which he says were noted in his register, and that he made the entry at the time of.the performance. We should “strain the meaning of terms” so as to destroy a “sensible meaning” were we to hold otherwise. The law does not require that such official acts be proven from the recollection of a witness, but permits him to testify from memoranda made at or near the time, if he knows they are genuine and has no doubt of their truth: — See 1 Greenl. Ev. §§ 436, 437. This is a rule of general convenience and public necessity, and all rules, says Mr. Greenleaf, “ are adopted for practical purposes 'in the administration of justice, and must be so applied as to promote the ends for which they were designed.” Giving to the language of the witness a reasonable construction, I .am satisfied that his testimony is not evasive, but the true, honest statement of his official acts, and it is to me much more satisfactory than if he had pretended to a recollection awakened by reference to this memorandum of a long forgotten transaction.

The objections of the defendant to this testimony go altogether to its sufficiency, and would be well taken, if, after a cross-examination, it should be found that the Witness had no knowledge of the memorandum, nor of the transaction, or refused to produce the memorandum for his inspection, and for cross - examination in respect to it. But no rule of law requires a deponent to fortify his testimony by anticipating every possible inquiry which might be made upon cross-examination, nor to produce before the commissioner his register of memoranda for the purpose of inspection when there is no party present to inspect, and no interrogatory jn’opounded relating to it. If the defendant was dissatisfied with the answers given, he should have taken steps to obtain a further examination, and not permitted the cause to go to trial in the expectation of excluding competent, although perhaps insufficient or unsatisfactory, evidence. Depositions would be valueless, and only conduce to injustice under any other rule.

But independent of these considerations, as the case was tried by the Court without a jury, the errors as to the allowance of the reading of the testimony are not, I think, assignable. In the case of a trial by jury, the J udge may and must inspect the answer, and determine whether it may go to the jury or not, and upon his ruling error may be assigned; but when he acts in the double character of court and jury, it is equally a matter of necessity that he should inspect the answer, and the question for him to determine is, whether any or what weight shall be given to it, and whether it shall be received as evidence so as to become an element of the judgment. I can not well see how he can commit error by permitting testimony to be read to himself upon the relevancy or admissibility-of which he is called to decide. If the question be conrpetent he must receive the answer, although he may exclude it from consideration in making up the judgment. It appears to me that by requiring the Judge to find the facts, and his rulings of law, in writing, the Legislature intended to meet this very class - of cases, and to preserve to a party, by allowing.him to take exceptions to such findings and rulings, his remedy when illegal testimony, although necessarily exhibited to the Judge, is improperly considered by him. In the case of a trial by jury, when testimony considered to be incompetent may be absolutely withheld from them, the presumption of law is that all the evidence suffered to go to them becomes an element in their verdict, but no such presumption arises in a trial by the Court. What evidence he considered, and what he rejected upon deliberation and examination, can not be. known except from inspection of his written rulings and findings, or by his determination, manifested in some way, either to consider or reject it, always after he has read or heard it.

In this case the bill of exceptions does not profess to recite the whole testimony, and we can not know upon What or whose testimony he grounded his judgment, nor have we the rulings and findings of the Court; and the impropriety of allowing exceptions to the interlocutory rulings of the Judge is here made very manifest. The only way in which these questions can be safely or properly reviewed, is upon a case made, or exceptions taken after judgment rendered, as provided by the statute; for until that event we have no means of knowing whether the judgment is based upon legal or illegal testimony, and a party can always protect himself by requiring distinct rulings upon all the objections taken by him in the progress of the trial.

I think the judgment should be affirmed.

Campbell J.:

The note in controversy was we think properly admitted under the pleadings, for the reasons given by the Chief Justice. But we think the Court erred in receiving that portion of the deposition of Spring which was objected to.

Inasmuch as the suit was brought to charge Bliss as indorser, it became incumbent to prove the presentment for payment and the refusal or neglect to pay, as well as notice of the dishonor.

This it was sought to do by the witness Spring, who is shown by his deposition to have executed an instrument of protest.

His testimony was taken on commission, on questions settled by consent of counsel. Cross-examining questions Were waived, and manifestly would have been unnecessary under a fair expectation that he would have answered the very precise and accurate direct interrogatories, whereby he was distinctly required to state whether the acts necessary to charge the indorser were done by him personally.

Instead of answering these pointed inquiries he contented himself with evading all of them, and stating that it appeared from entries in his register that the note was presented and dishonored, and that notice was sent by mail to certain parties. The answer was not in any proper sense a response to the questions, which clearly directed his mind to the necessity of disclosing his own personal acts and nothing else. We do not doubt but that it would have been, entirely proper for him, if he could not remember without, to refresh his recollection by reference to his own entries made at the time; but he must, either with or without the aid of such entries, be enabled to swear, and must swear, that the necessary steps were taken by himself at the proper time. There is nothing in his testimony which tends to show who presented the note, who made the entries, or who gave the notice. And, inasmuch as his attention was called to this very matter, it would be contrary to all rule to infer that which he has studiously avoided to state.

If it clearly appeared from the bill of exceptions, that these omissions had been supplied by other testimony, the improper reception of the evidence in a trial before the Court without a jury might not have prejudiced the case. But we can make no such presumption in this case. Mr. Spring appears distinctly to be the Notary who protested the paper. The action relied upon must have been within his knowledge, if taken at all, and he is naturally to be looked to for the information. When the Court below decided that his deposition as to this action was admissible, we are necessarily bound to infer that it was received as sufficient proof, and acted upon.

The answer of a witness under a commission is not admissible unless it would have been admitted had he been examined in open Court on the stand. The statute expressly provides that objections of competency may be made at the trial: — 2 Comp. L. §4257.

The judgment below must be reversed, with costs, and a new trial granted.

Manning and Christiancy JJ. concurred with Campbell J.

Judgment reversed.


source: Caselaw Access Project

author: Martin Ch. J.:

license: Public Domain

text:
    Wolcott S. Haviland v. Hiram Parker.
    One whose property had been wrongfully'taken from him, replevied it, but being nonsuited in the replevin suit, defendant had judgment against him for the value of the property. He then sued in trespass for the taking of the property, and it was held that he was entitled to recover in this suit not only damages for the detention of the property while defendant held it, but also its value as assessed in favor of defendant in the replevin suit.

      Heard October 9th.

      Decided December 6th.

    Case made after judgment from Livingston Circuit, where plaintiff had judgment.

      G. V. N. Lothrop, for plaintiff.

      Wilcox & Waddell, and O. Hawksins, for defendant.
   Martin Ch. J.:

This case comes up here for a review of the law and the facts. The action is trespass de bonis asportatis, to recover the value of a yoke of oxen, the property of the plaintiff, which the defendant as a tax collector seized for the tax of one Lewis J. Haviland. This plaintiff replevied the oxen from the defendant, but for some reason he was nonsuited in that case, and judgment given to the defendant for the value of the property. This action was then brought, and it was submitted upon the following statement of fact's:

“ 1st. That the yoke of oxen referred to in the declaration in this case was the property of the plaintiff.

2nd. That the defendant was the township treasurer of the township of Iosco- at the time the alleged trespass was committed, and by virtue of the warrant attached to the assessment roll of the said township of Iosco, levied upon and took into his possession, in the said town of" Iosco, said yoke of oxen, for the non-payment of taxes assessed against one Lewis J. Haviland.

3d. That said yoke of oxen remained in the custody and possession of the defendant, and were detained from the plaintiff eight days, and that the damages of the plaintiff, for the detention of the said oxen eight days, was the sum of four dollars.

4th. That at the expiration of the said eight days, the plaintiff sued out a writ of replevin before - a Justice of the Peace of said county of Livingston, and replevied the said yoke of oxen, and the same were delivered to the plaintiff, and that said oxen have ever since remained in the possession of the said plaintiff, and were in the possession of the plaintiff at the time of the commencement of this suit.

5th. That before the return day of the said writ of replevin the said Lewis J. Haviland paid the taxes assessed against him, but did not pay the costs of the replevin suit.

6th. That on the return day of the said writ of replevin, the respective parties appeared before the Justice of the Peace who issued the same, and that thereupon such proceedings were had that the' defendant recovered a judgment of non-suit, before the said Justice, in said replevin suit, and the defendant, Parker, having elected to waive a return of the said property replevied, the said Justice of the Peace rendered a judgment in favor of the defendant and against the plaintiff for tbe value of tbe property replevied, to wit: for tbe sum of sixty-five dollars damages, and tbe said defendant’s costs of suit taxed at tbe sum of five dollars.

ith. That execution upon tbis judgment was stayed within five days after tbe rendition of tbe same, and that thereupon tbe said plaintiff brought this action of trespass.!’

Judgment was rendered below in favor of tbe plaintiff, for $65, being tbe value of tbe oxen, and $4, being for their detention - eight days.

It is contended that tbe Court mistook tbe rule of damages, and that tbe damages should have been for the temporary detention only. We think not. Tbe defendant bad unlawfully taken tbe property of the plaintiff, and tbe judgment in tbe replevin suit determined nothing in regard to tbe title of tbe property. .By taking and retaining tbe inequitable and unjust judgment in that suit, be absolutely converted the property as much as though be bad sold it to a third party. Tbe fact that Haviland got tbe property by replevin, does not avail to reduce tbe damages below its value, as tbe property, as said by tbe plaintiff’s counsel, was so got by a new title, by actual purchase under tbe forms of law, ' and tbe wrong of tbe original taking and bis right to redress for it were left unaffected.

The value of tbe oxen as ascertained in tbe replevin suit was properly considered by tbe Court, for no other evidence of value was offered; and indeed it may be said that tbe parties in their agreed statement of facts, have themselves affixed that value to them.

Tbe damages given in tbis case are nob, as seems to be supposed, exemplary damages for tbe unjust judgment obtained in tbe replevin suit, although, if that were tbe avowed reason, I would hesitate long before I disturbed it on that ground; but are to make tbe plaintiff good for the actual damages he has sustained, by being compelled to pay for Ms own property to a trespasser.

The judgment is affirmed, with costs.

The other Justices concurred.


author: Campbell J.:

text:
    Alexander Beach v. The People.

      A person is not punishable criminally for maintaining a dam whereby no greater nuisance is created, and of no different character, than would have existed without it.
    On the trial of an information for causing a nuisance by a mill dam, the question whether the stream as dammed is as healthy to the neighborhood as it would be.if the mill pond was drawn down, the river channel ditched, the water drained from the low lands, and the whole converted into a beautiful meadow, is not an admissible test of nuisance.

      Heard November 22d.

      Decided December 6th.

    Error to Hillsdale Circuit.
    Plaintiff in error was. proceeded against by information for an alleged nuisance caused by obstructing the waters of the St. Joseph River, by a dam in the township of Fayette in Hillsdale county, thereby causing stagnant water, noisome and unwholesome stenches, and producing sickness and disease in the vicinity.
    On the trial, Dr. Everett having been examined on the part of the prosecution to establish the fact of nuisance, and having been' then cross - examined, was afterwards asked by the prosecution the following question: “If the mill pond was drawn down, and the channel of the St. Joseph ditched, and the water drained from the low lands, and the same reduced to a beautiful meadow, would the stream and low lands be likely to cause as much sickness as the pond in its present condition?” This question was objected to by defendant, but the objection overruled, and the witness answered in the negative. Similar questions were allowed to be put to and answered by other witnesses.

      For the defense the following questions were put to Dr, Delavan, all of which were overruled by the Court as irrelevant.
    “Would this pond rise and fall more in its present 'condition than the stream would in its natural condition if the pond was drawn down?”]
    “Would the pond in its condition last summer [the time embraced in the information] be more or less productive of disease than the stream in its natural condition if the dam was torn down?”
    “Was the condition of the pond in its state last summer more injurious to the health of the community around it than the stream in its natural state if the dam was removed-?”
    The testimony being closed, the Circuit Judge was asked by defendant to charge the jury, among other things: That if the jury find from the proofs that the maintenance of the dam and pond do not have a tendency to produce more disease than the stream would produce in its natural channel without the dam and pond, they should acquit. Also, that if the jury find from the proofs that the smells arising from the pond are not different in character or amount from those arising from the water in the St. Joseph River in its natural channel, and that the effect produced by the dam and pond are not different in character or amount from those produced by the waters of the St. Joseph in its natural .channel, they should acquit. . These requests were refused, and the jury returned a verdict of guilty.

      C. I. Walker, for plaintiff in error.

      C. Upson, Attorney General, and G. V. N. Lothrop, for the People.
   Campbell J.:

Defendant below, who is plaintiff in error, was indicted •for maintaining a mill-dam. The exceptions taken to the reception and rejection of evidence, and to the refusal of the Court to charge as requested, present substantially but one question; -which is, whether a party is punishable, Who maintains a dam whereby no greater nuisapce ia created than would have existed without it, and where the nuisance existing, if any, is of the same character, We think the question too plain for argument. A person lawfully using a water-course can not be guilty of a public nuisance, unless that nuisance is the consequence of his. conduct; and a mere change in the mode of enjoyment, which involves no increase of evil, can not by any reasonable rule be said to be an injurious act. Streams susceptible of use for mills may be used for that purpose without criminality unless the use involves some public grievance not before existing, which would not otherwise have been created. To hold that a mill - dam is a nuisance, when the stream without it would produce the same extent and kind of mischief, would be equivalent practically to rendering the erection of mill - dams generally an indictable offense; for it is hardly possible that the water of mill-ponds should be so entirely limpid as to contain none of the impurities which abounded in the stream before its obstruction; although, by covering marshy spots periodically flooded and exposed to the sun, the noxious ’ exhalations may be greatly diminished. We think the charges refused should have been granted, and that the testimony excluded should have been admitted.

The prosecution was permitted to ask witnesses whether the stream as dammed was as healthy to the neighborhood as it would be if the mill-pond was drawn down, the river channel ditched, the water drained from the low lands, and these lands converted into a beautiful meadow, This is not an admissible test. There is no rule of law-requiring the lands of this state to be placed in such a. desirable condition, or rendering land owners criminally responsible for not improving them in that manner.

The judgment below must be reversed, and a new trial granted.

Martin Ch. J. and Manning J. concurred.

Christiancy J. was absent.


author: The Court,

text:
    Francis Palms and others v. Daniel J. Campau.
    'Sixty days having expired after the making of an order by the Probate Court* without appeal being taken therefrom, the Circuit Court granted a party leave to appeal with the same effect as if it had been done seasonably. Cer* tiorari was sued out to remove to the Supreme Court the order of the Oirout Court allowing this appeal. It was held that until after adjudication upon the appeal by the Circuit Court, the proceedings could not be reviewed in the Supreme Court; and the writ was dismissed.

      Heard and decided December 6th.
    Motion by T. Romeyn, to dismiss a writ of certiorari.
    The Judge of Probate .for the county of Wayne made an order for the appointment of a guardian for Daniel Campan, as an incompetent person. After sixty days had expired from the making of this order, on a special application made to the Circuit Court under §8686 of the Compiled Laws, that Court made an order allowing an appeal to be taken with the same effect as if it had been taken seasonably. To remove to this Court the proceedings on the granting of this order, a writ of certiorari was sued out by Palms, which it was now moved to dismiss on the grounds, among others,
    1. That the order made by the Circuit Court allowing an appeal was one resting in its discretion,
    2. A certiorari does not lie at this stage of the proceedings. The party claiming to be' aggrieved must wait until after an adjudication upon the merits by the Circuit Court.

      A. Pond contra, controverted these positions, and also insisted that if the writ was dismissed and the plaintiffs in error were required to join issue in the Circuit Court and proceed to a hearing on the merits, they would be precluded afterwards from taking the objection that the-application made to the Circuit Court for leave to appeal did not present a case within the statute, and consequently did not confer jurisdiction upon the Circuit Court to make the order.
   The Court,

remarking that a defect of jurisdiction could not be thus waived, dismissed the writ, on the ground that, before an adjudication upon the appeal by the Circuit Court, the proceedings could not be removed to this Court for review.


author: Campbell J.: Manning J.:

text:
    The People on the relation of James A. Rogers v. The Board of Canvassers of Kent County.
    Under a law authorizing the election of two Circuit Court Commissioners an election was held, but it was conducted in all respects as if one only was to be chosen: two persons were opposing candidates, and each elector voted for one of the two, but in no instance did a ballot contain more than one name for this office. It was held that only the one receiving the highest nxuhber of votes was chosen, and as to the other there was a failure to elect, and it remained vacant.

      Heard January 7th.

      Decided January 13th.

    Motion for a mandamus to compel the . Board of Canvassers of Kent County to certify to the election of the relator as Circuit Court Commissioner for such county at the annual election held in October, 1862. It appeared by the application, and by the affidavits in opposition, that the notice of election given by the • sheriff was first for an election of two Circuit Court Commissioners, hut it was soon changed to one; that the general understanding was that only one was to be cbosen; that Eben Smith, junior, and the relator were respectively nominated and voted for by opposing parties; that the former received 8,108 and the latter 2,614 votes, no elector naming more than one person for this office on his ballot, and that the Board of Canvassers declared Smith duly elected, but refused to make a similar declaration on behalf of tbe relator.

      The relator claimed to be elected under sections one and two of act No. 232 of the Laws of 1861. No action was ever taken by the Board of Supervisors under the first section of that act for the election of a Commissioner at any spring election preceding December '31, 1862. The census of 1860 showed a population of over' 20,000 in Kent county. The relator was an attorney at law, and had tendered the official oath and bond required by the statute.

      H. B. Brown, for the motion.

      A. B. Maynard, contra.
   Campbell J.:

An election was held in Kent County in the fall of 1862, for Circuit Court Commissioners, at which 5,M2 votes were cast; of which 3,108 were cast for Eben Smith junior, and 2,614 for the relator. The Board of Canvassers certified to Smith’s election, but refused a certificate to Rogers, who asks a mandamus to compel them to certify in his behalf also; on the ground that by the statute two Commissioners were required to be chosen — the county having more than 20,000 inhabitants.

The statute of 1861 is by no means free from ambiguity; but we are very strongly inclined to the opinion that it does require two Commissioners to be elected in such counties, at the election in the fall of 1862, and subsequently. The first section allowed the supervisors, in 1861 or 1862, to direct a special election should they see fit; but the incumbent elected at such special election could not hold beyond the year 1862. It would be extremely desirable to have the statute so amended as to dispose of the doubts to which the ambiguous language may give rise in other cases.

When we look at the number and character of the ballots cast in Kent county, we are forced to the conclusion that there has been a failure to hold an election for more than one Commississioner. The affidavits of outside under standing, and of the several party nominations, and of the sheriff’s various notices, are not admissible to determine the rights of the relator, although they would, if received, corroborate the evidence of the ballots themselves. The ballots show that in no single instance did any person vote for more than one candidate. This being the case it would he absurd to assume that an election was held to fill more than one office. There has been as to tbe other a failure to hold an election; and that office therefore remains vacant. As there is no pretence that Smith was not properly elected, the relator is clearly not entitled to relief.

The application must be denied, with costs.

Martin Ch. J. and Christiancy J. concurred.

Manning J.:

I think the facts clearly show that it was the intention of the electors to elect one Circuit Court Commissioner, and no more. If the county was entitled to two under the act — which I am inclined to think is not the case, as there had been-no action of the hoard of supervisors — I am at a loss to know how we can elect another, or compel the Board of County Canvassers to give a certificate of election to one who has been rejected by the people.

Mandamus refused.


author: Martin Ch. J.: Manning J.:

text:
    Philo Parsons and another v. George B. Russell and another.
    The provision in tbe Constitution that “No person shall he deprived of life, liberty or property without due process of law,” as applied to proceedings of a judicial character, was intended to secure to the citizen the right to a trial, according to the forms of law, of the questions of his liability and responsibility before his person or his property shall be condemned,

      The trial must be by an impartial tribunal, and judgment must precede tbe deprivation of property.
    Under the Boat and Tessel Law of this State, a vessel may be seized and sold upon the mere assertion of a debt or demand, without aDy proof to substantiate the claim being made before a judicial tribunal, and without any judgment or decree of any such, tribunal allowing the sale. It is therefore in conflict with the constitutional provision above quoted, and void.

      Heard May 29th and 30th, 1862.

      Decided January 13th.

    Error to Wayne Circuit.
    Plaintiffs in error brought action upon a bond given by defendants in error for the release of the steamer Illinois, which had been seized under the Boat and Vessel Law, so called (chapter 149 of Compiled Laws), on a warrant issued by T. S. Blackmar, a Circuit Court Commissioner of Wayne county. The bond was conditioned for the payment to plaintiffs in error of the sum of $761 96, the amount of their claim for which the boat was seized.
    The defendants' demurred to the declaration, assigning several special causes; but as the constitutionality of the Boat and Vessel Law was the only question considered by this Court, an abstract of the pleadings is not given. The Circuit Court -gave judgment for defendants.

      Maynard & Meddaugh, for plaintiffs in error:
    1. The Act is presumed to be constitutional, and, unless satisfied beyond all serious doubt of its conflict with some provision of the Constitution, the Court must sustain it: — Sears v. Cottrell, 5 Mich. 252; People v. Tyler, 8 Mich. 320; 1 Mich. 176 and 508; 4 Mich. 244.
    The defendants claim that the section of the Boat and Vessel Law, which provides for the sale before the claimants’ demand has been adjudicated, infringes that article of the Constitution which provides that “no person shall be deprived of life, liberty, or property, without due process of law.” This involves the question, what is due process of law? The provision came from Magna Charta. The evil which it was intended to remedy was to prevent the King from causing Ms subjects to be imprisoned and their property confiscated without any regard to legal forms or usages. -It was forced from him to prevent the future exercise of such illegal and oppressive power.
    In construing any law we must look at the mischief or evil which it was intended to remedy. Applying this rule, “due process of law” could only have been intended to prohibit special acts of the Legislature, and not a law general in its application and affecting the rights of all alike. Such was the construction given to this provision in the case of Sears v. Cottrell; Ervine's Appeal, 16 Penn. 256; Matter of John and Cherry Streets, 19 Wend., and numerous other cases.
    2. There are quite a number of cases that give to the words “ due process of law ” a different construction, and hold that they mean a trial before some judicial tribunal, and the rights of the parties first settled. Judge Curtis, in 18 How. 276, says, we must look to the settled usages' and modes of proceeding existing in the common and statute laws of England, before the emigration to this country, to ascertain their meaning, unless they are defined in the Constitution; and holds that such a construction as Was given to them in Sears v. Cottrell makes the provision a nullity. If he is correct, then the People, by the adoption of the Constitution, have deprived themselves of the power to pass any law that materially changes the judicial proceedings then in use.
    If they mean a trial before some magistrate or judicial tribunal, and the rights of the parties first settled by a judgment, then many of our special statutory proceedings must be condemned. Our attachment process is unknown to common law, and under it, the defendant is deprived of the possession and use of his property before trial or judgment. If the attachment law is constitutional and this is not, then, to deprive a person of the possession, use and control of his property before judgment, is “ due process

      of law,” but to go a step further and sell the property' is not “due process of law.” The statute providing for the sale, on the order of the court, or a judge thereof, of animals or perishable property taken in attachment, is open to every objection that can be urged against the law in question.
    The fact that the sale of perishable property when attached is necessary, as well for the interests of the debtor as the creditor, only goes to the policy of the act, and' not to the power of the Legislature. The limitations or restrictions upon the law-making power do not yield to any considerations of expediency or necessity. There is no soundness in the argument that the construction given to the words “due process of law” in Sears v. Cottrell, renders the limitation a nullity. It prohibits the passage of any special law to affect injuriously the rights of particular individuals, as sueh. Such a law would manifestly not be “the law of the land.” A proper definition involves the idea of generality — it being the law of the land in contradistinction to the law of individuals. The controversy in reference to the meaning of this clause — “ due process of law” — had its origin, no doubt, in the fact that not unfrequently harsh, cruel, and oppressive laws have come before the Courts of the several States, and seeing no other remedy in the Constitution, this provision has been construed into a sort of all-healing ointment. But it is said if “due process of law” is to have the meaning we seek for it, then the Legislature have absolute power 5 that they have only to make their acts general and they must be submitted to. If this would be so, it should have no influence on the construction of this or any other provision of the Constitution. The Constitution vests in the Legislature the entire law-making power, subject to the limitations therein specified. They are the direct representatives of the People, the delegates of their power, and, except for the limitations of the Constitution, are as absolute in power within their proper sphere as the People themselves. But the proposition does not follow from the construction we claim. The law must not infringe any of the limitations of the Constitution, whether directly expressed, or necessarily implied from the positive duties enjoined. A law perhaps utterly repugnant to justice and reason might be treated as a nullity — especially if the decision of our Courts furnished any fixed and certain standard that such was its character. To hold that an act of the Legislature is void because the power which would authorize its passage would also authorize the passage of some supposable ridiculous enactment, is a mo|t unjudicial and dangerous mode of reasoning. But if the Constitution furnishes no safeguard against such legislation, let us not seek a remedy more dangerous than the evil itself. An unauthorized construction of the Constitution to meet some extreme case, would., furnish much greater cause for anxiety than any general legislative act.

    The Boat and Vessel Law was in existence in this State long before the adoption of our present Constitution, and was- copied from the statutes of a neighboring State, where it has been in operation for many years, and its constitutionality appears never before to have been questioned, either there or here. This should lead the Court, before pronouncing the law void, to examine carefully, lest its apparent harshness should carry them beyond the true province of their duty. There is no conflict between this act. and the act of Congress of 1845,. as the latter expressly reserves to the parties the right to every concurrent remedy given by the State law.
    But even if the law is unconstitutional, the defendants having voluntarily given the bond to secure the release of the vessel are estopped from denying the validity of the process: — 2 W. & S. 517; 14 B. Monr. 41; 1 Black. 331; 21 Wend. 337; 3 Hill, 47.

      A. Russell, for defendants in error :
    The Boat and Vessel Law is unconstitutional.
    1. As against common right and the law of the land, because it deprives a man of his property without due process of law.
    It provides (§§ 18, 28), that the vessel shall be sold, unless bonded, after three months advertisement, and that the proceeds shall be brought in for distribution. Then, and not till then, is an opportunity given to contest the demand of the plaintiff. The defendant has no day in court, no opportunity to be heard, until his property is taken away from him.
    The principle involved in the sale of perishable articles furnishes no analogy. Take the case of a vessel owned in Oswego, seized here, and a failure to procure bondsmen through want of acquaintance or property in this State. The representative of an investment of $50,000 may rot for three months, on a baseless claim, and the owner may have the satisfaction of receiving at last from the • com." missioner a pittance brought on a forced sale, less the costs! See Const. Art. VI §32; U. S. Const. Amendments, Art. V; Magna Charta, §§ 29, 46; Coke, 2 Inst, 46; Sedg. Stat. & Const. L. 534, 610; 2 Story, Const. §3789; Ervine's Appeal, 16 Pa. St. 256, 4 Dev. 15; 10 Yerg. 59; 18 How. 272.

    The remarks of the Court in Sears v. Cottrell, 5 Mich, 254, I submit, do not conflict with this view. The mere fact that a law is a general law, operating upon all alike, is not, of itself, inconsistent with its being a law which deprives a man of his property without due process of law. A law, for instance, declaring that no evidence should be given on the part of the defendant in any court in this State, would certainly be a general law, and yet glaringly unconstitutional. The law of the land is not only a general law, but “a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial.” Now, this law hears the complaint only, and then condemns property to be sold before inquiry and before trial. To be sure, it stops short of handing over the proceeds to the plaintiff, but it deprives .the owner of property of that property in specie; and the guaranty in the Constitution to a man of his property, means, beyond question, Ms property in specie, and not its money value. Property and money are not convertible terms.
    Story defines “due process,” etc., as “being brought in to answer," etc. This also means much the same as “ agreeably to the principles and usages of law” found in may statutes, e. g., U. S. Jud. Act. § 14; and these principles and usages form the substratum of all State and Federal laws: — Marshall Ch. J., Burr's Trial; Lorman v. Benson, 8 Mich. 18; Stout v. Keyes, 2 Doug. Mich. 184; Chase v, Hathaway, 14 Mass. 224; Hibbard v. People, 4 Mich. 125; Brooks v. McIntyre, 4 Mich. 316; Greene v. Briggs, 1 Curt. C. C. 311: and'the language of Christiancy J., 5 Mich. 261, is only an amplification and illustration of “against the law of the land.”
    I have said the law stops short of handing over the proceeds of the vessel to the plaintiff without any trial. But it does what is worse even than that would be. It compels the vessel owner to pay out of the proceeds of the vessel all the costs made by the plaintiff, even if, upon trial, it turns out that the latter had no ground whatever for causing the seizure (§§21, 29). This law, indeed, comes up to the extreme case supposed by Christiancy J., 5 Mich. 261. I submit that in the language of the Court in Tyler v. The People, 8 Mich. 333, affirming Sears v. Cottrell, the Court can “lay its finger on the part of the Constitution violated,” and that “the infraction is clear, and free from a reasonable doubt.”
    2. As practically establishing an Admiralty Court.

      [The point not being considered by the Court the argument upon it is omitted.]
    Giving the bond does not estop the defendants below from setting up that the law is void. The bond is not entered into voluntarily, but from compulsion. The proceeding is in invitum. Herein it differs from bonds .given in attachment, replevin, &c., where the plaintiff voluntarily avails himself of a statute, and reaps a benefit, and* hence can not set up defects in the law or proceedings when sued on the bond, or even want of jurisdiction. The essence of estoppel is the admission. Now, the obligors in this bond admit nothing. No recital but that of the seizure is necessary.
    What is the consideration of the bond? Evidently, the legal obligation created by the statute. If the law was invalid, and there was no legal obligation resting upon the vessel owner to leave his property in the sheriff’s hands, unless he gave the bond, there was no consideration.
    The only recovery there can be on the bond is by establishing “a subsisting lien.” Now, there is no lien, if the remedy, provided by the law, is unconstitutional. A lien being declared and a remedy prescribed, that remedy is exclusive. If a lien had been declared and no remedy provided, it could probably have been enforced in chancery. But, as it is, if the remedy is held void, the whole law must fall, and there is no ezisting or subsisting lien which can be estimated on the bond. It is like the case of a crime declared, with a punishment affized, which is held unconstitutional. Manifestly, there is then, thereafter, no crime triable in court.
   Martin Ch. J.:

The constitutionality of the Boat and Vessel Law is the first question to be considered in this case, for if the law be found to be unconstitutional the plaintiffs have no standing in Court, and all the minor questions raised by the record are unimportant. It is contended by tbe defendants that the law violates that provision of the Constitution which declares that no person shall be deprived of life, liberty or property without due process of law.

Whatever may be the difficulty of defining this phrase of the Constitution when sought to be applied to other proceedings, when used in relation to those of a judicial-character it is evidently, and has been so universally held,, intended to secure to the citizen the right to a trial, according to the forms of law of the questions of his liability and responsibility, before his person or his property shall be condemned. Judicial action is in such cases-imperatively required, and “implies and includes actor, reusy judex — regular allegations, opportunity to answer, and trial, according to some settled course of judicial proceedings.” While we adopt the common law, or, to speak more accurately, so long as we recognize and submit to it, we-recognize and adopt the fundamental principle that no -mgr» shall be party and judge in his own ease: that if tried it it shall be by his peers, and if deprived of liberty or property it shall be by impartial judicial authority, after a trial and judgment under general laws. The right to enforce private rights must necessarily be through the intervention of courts.of justice, and in the enforcement of contracts, at the least, a trial by jury, or according to some universally established practice of courts, has always been guaranteed to determine the respective rights and liabilities of the parties, and property has been protected from sale until these rights and liabilities have been judicially ascertained and determined. The Boat and Vessel Law ignores this principle, and confers upon a claimant a right to condemn and sell a boat or vessel, upon his bare assertion of a debt or demand, without requiring any proof to substantiate it to be made before any judicial tribunal, or requiring any jrrdgment or decree of such tribunal to be made after a trial or investigation of the demand. Thus a vessel may be sold -upon an assertion of tbe existence of a demand, which may be absolutely false and unfounded. Certainly the spirit and genius of our laws, as well as the letter of the Constitution, will not tolerate this outrage upon the rights of property. The law gives no hearing to the defendant until the whole property is disposed of, and if no debts are established, the consequences are just the same as if they had been. In either event he is deprived of his property, and this before trial and judgment. The vessel owner has no means of maintaining his property, although there may be no shadow of a claim against him. It is no answer that he may bond it, for by reason of absence, or other cause, he may be in neither the position or condition to do so. The whole proceeding to the sale may be conducted in his absence, or without his knowledge. The .statute does not require personal service to be made, or attempted to be made upon him or any person. It is in the nature of a proceeding in rem, and a condemnation of the property before trial and judgment; the consequences of which can not be obviated by any judicial act.

There -is no analogy between this case and those of the sale of property for non-payment of taxes, or other revenue purpose, for this is really the act of the creditor or claimant, while the other is the act of the government in the exercise of pre-eminent sovereignty to which all other rights are subordinate; a right necessary for the protection and preservation of the government: neither is that the exercise of a judicial right or form; and to this alone is our attention directed in this case. Nor is there any analogy between this law, and that authorizing the sale of perishable property seized under the attachment law; as in the latter case the judgment or order of a court is 'requisite before a sale can be made. A sale of perishable property is only allowed to prevent the loss which would necessarily accrue from not selling; and the object is to protectj,the rights of all parties by a resort to the only mode to obtain any beneficial use from the property. In this case of the sale of perishable property pendente Ute, and in every instance of the exercise of such a power within,my recollection of the authorities, Such power is exercised upon the order of a court of competent jurisdiction before which the parties are, or may be, heard, and after due notice.

But the effect of this law is the absolute destruction of the title and right of the owner of the boat or vessel ■against which proceedings are instituted, by the ex parte act of one claiming to have a demand which is by law declared to be a lien upon such boat or vessel. That the law may declare any and all contractors for the building, furnishing and supplying vessels to have liens upon such vessels by reason thereof, is not questioned; but we deny that the law thereby makes the contractor a judge in his own case, so far as to enable him to divest the owner of his property, through the ministerial acts of a Circuit Court Commissioner, or a Judge at chambers, without judicial investigation and determination of his right and the consequent liability of the vessel or its owner.

Holding the law in this respect to be unconstitutional, the judgment is affirmed, with costs.

Christiancy and Campbell JJ. concurred.

Manning J.:

I can not agree with my brethren in holding the statute or any part of it unconstitutional.

It has long been on our statute book. It is not a new law just enacted. It made its first appearance in our State in the Revision of 1846. From that time to the present — ■ sixteen years and upwards — it has been regarded by our courts and parties having occasion to act under it as the W of the State. Questions have frequently arisen under It, some of which have been brought to this Court for ■adjudication. Lawson v. Higgins, 1 Mich. 225; Bidwell v. Whittaker, 1 Mich. 469; Watkins v. Atkinson, 2 Mich, 151; Truesdale v. Hazzard, 2 Mich. 344; Turner v. Lewis, 2 Mich. 350; Ward v. Wilson, 3 Mich. 1; and Wight v. Maxwell, 4 Mich. 45, are eases of this description. In each of these as in the case before us the action was on a bond given under the statute to release the vessel. In no one of them was the constitutionality of the statute questioned.

As every statute is presumed to be constitutional, there must be a period in the existence of a statute when that presumption becomes conclusive by lapse of time, the accumulation of rights under it, and its recognition by the judiciary.

In Stuart v. Laird, 1 Cranch, 299, it was objected that the Judges of the Supreme Court of the United States could not hold the Circuit Courts, under the Constitution. The Court say: “ To this objection, which is of recent date, it is sufficient to observe that practice and acquies-’ cence under it for a period of several years, commencing with the organization of. the judicial system, affords an irresistable answer, and has indeed fixed the construction.”

We find a similar statute in the State of New York — • open to the objection that in the opinion of my brethren is fatal to our statute — as far back as 1829. See 2 R. S. of that State, p. 492. This statute is still, we believe, in force there, and we are not aware that its constitutionality has ever been brought in question in the courts of that State.

To an intelligent discussion of the constitutional question it will be necessary to state most of the provisions of the statute. i

The first section makes debts contracted on account of supplies and provisions a lien on the vessel. The other sections provide the machinery for enforcing the lien.

Section second names the officers to whom application may be made for a warrant to seize the vessel.

The application is to be in writing, to specify the particulars of the demand, and in whose favor it accrued, and ■the amount due over and above all payments and discounts; and it is to be verified by the affidavit of the creditor or •claimant, or of some other credible person having a hnow~ ■ledge of the facts, §3. The warrant is to the sheriff ox-constable, and commands him to seize and safely keep the vessel, its tackle, apparel and furniture, to answer all such liens as shall be established against it according to law; •and to make a return of his proceedings to the officer issuing the warrant within ten days after the seizure, §4, The sheriff is to keep the vessel to be disposed of as directed by the act, § 5. He is to make a return stating .particularly his doings, and to make, subscribe and annex thereto a just and true inventory of the property seized, §6. No other warrant is to issue against the vessel unless the first warrant is suspended, §Y On return of the-warrant the officer issuing it is to cause a notice to be pxxblished in a newspaper, &c., once in each week for twelve successive weeks, § 8. The notice is to state: 1st. The issuing of the warrant, and the name of the vessel seized or a description of it, and if known to the officer, the port or place to which ■she belongs, and the name of the last commander: 2d. It is to require all persons who claim to have any demands against the vessel, her tackle, apparel or furniture, under the provisions of the act, to deliver an account of their respective claims to such officer, within three months from the first pxxblication of the notice, or that their remedy 'against the vessel will be forfeited: 3d. That such vessel, her tackle, apparel and furniture, will be sold for the payment of the claims against it, unless the ownex-, consignee ox- commander thereof, or some person interested therein, appear and discharge such warrant according to law, within three months from the first publication of such notice, § 9. -Any person having a lien under the act, on delivering, at •any time within the three months, an account in writing of his demand to the officer issuing the warrant, verified by affidavit as in the case of an application for a warrant,, is to be deemed an attaching creditor, §10. All liens not presented within that time are to cease, §11. The owner, consignee, agent or commander, or any person interested in such vessel, may at any time before an order for the sale of such vessel is made, apply in person or by an attorney, to the officer who issued such warrant, for an order to, discharge the same, §12. The applicant is to execute and deliver to the officer to whom the application is made a, bond to the creditors or claimants prosecuting the wai’rant,. in a penalty double the amount of debts and claims sworn to, with such security as shall be approved by the officer,, conditioned that the obligors will pay the amount of such claims and demands as shall have been exhibited, and which shall be established to have been subsisting liens on such vessel at the time of exhibiting the same, § 13. On the delivery of such bond the warrant is to be discharged, and the claimants’ remedy for the recovery of their several' demands is on the bond, § 14. If the claims are not satis-, tied, and the warrant is not discharged within the three months, the officer issuing the warrant, within one month after the expiration of the said three months, upon due proof of the publication of the aforesaid notice, is to issue his order for a sale of the vessel with her tackle, apparel and furniture — stating in the order the amount necessary to be raised to satisfy the claims and expenses, and modifying the order to a sale of the tackle, apparel and furniture only, if it should appear they would sell for enough to pay that amount, §§ 18, 19. He is at the same time to order-a notice to be published for three successive weeks, requiring all persons who had exhibited claims, and the owner, agent, consignee, master, and all other persons interested in the vessel, to appear before him at a day to be specified, not less than thirty nor more than forty days from the first, publication of the notice, to attend a distribution of the proceeds of the sale, § 22. On the day appointed in such notice, he is to hear the allegations and proofs of the parties, and make distribution of the proceeds arising from the sale, after deducting the expenses, among the creditors who have exhibited their claims, unless the claims of such creditors, or some of them, should be contested by the owner, agent, consignee or master of such vessel, or by some one of such creditors, §23. The objections to a claim to be in writing, and on request to be tried by a jury, §§ 24, 26. The proceeds, if insufficient to pay all of the claims, to be divided pro rata; if more than sufficient the surplus to be paid to the owner, agent, consignee or master. It is unnecessary to notice the other provisions of the act, as they have no bearing on the question before us.

The action is on a bond given under section thirteen of the act, to release the vessel. It is not an action by the owner for the vessel or value, after a sale under the eighteenth section. It is this last section, and not the one under which the bond was given, that is complained of as unconstitutional. The ground of the complaint is, that it directs a sale of the vessel before the amount due to the claimant has been judicially ascertained.

Conceding, for the present, that the objection is well taken: as the vessel was not sold, and as no proceedings were had under that section, what has it to do with the present action?

No principle of law is better settled than that a statute may be good in part, and bad in part. So far as a statute is in contravention of the Constitution it is a dead letter. But the whole of a statute is not necessarily inoperative because a part of it may conflict with the Constitution. The unsoundness may so far permeate the whole statute as to have that effect; as where the sound and unsound parts cannot be separated; or being separated, the sound parts are so disjointed and disconnected as to be of no use for the want of a common ligament to hold them together, and to serve as a medium of action. The statute under consideration is not of this character. The eighteenth section is not the seat of vitality; it is a limb that may be lopped off without extinguishing the vital spark. The lien would survive. Only one of the two modes provided for enforcing it would be lost by the excision. If both were destroyed thereby would the lien itself perish? Would not the common law come to its rescue ? It would if the statute had created the lien without saying anything of the' remedy. The Legislature having given the right, and failed in the means provided for enforcing it, whether by reason of the Constitution or otherwise, must the • principal itself fall with the incident ? the right with the statute made to enforce it? It would be a strange freak. of legal ethics that would lead to such a conclusion. It would be catching at a straw, not to save life, but to ensure its extinction.

The act prescribes ' two ways for enforcing the lien after the vessel has been seized. One, by sale of the vessel under the eighteenth section; the other, through the. bond given under the thirteenth section, to release the vessel from the custody of the sheriff. But one of the two is open to the party instituting the proceedings, while it is left optional with his adversary to force him upon the other.

The question, therefore, is not the constitutionality of the eighteenth section, for its powers have not been invoked. Nothing has been done under it. And, if it would in a subsequent stage of the proceedings, have blocked up the way and arrested all further progress on the part of the plaintiff, the defendant has voluntarily relieved him of the embarrassment, by forcing him to leave the path in which he was traveling, for one not beset with like difficulties. I say voluntarily, for there was no coercion, in the legal sense of that word, ■ in giving the bond. It was not given by defendant under protest, but under & right claimed and secured to him by the act itself. Plaintiff had nothing'to do with receiving it. How can he, therefore, be charged with having procured it from defendant by coercion? It was forced on him by defendant. The acceptance of the bond was no more a voluntary act on his part than the giving of it was voluntary on the part of the defendant. Neither was in the power of the other. Both acted under the statute.

If we strike out the eighteenth section, and all that relates to the sale, the right to take and detain the vessel at the expense of the owner, until the bond is 'given or the debt is paid, is still left. A remedy that would, in most cases, be as likely to prove efficacious, by depriving the owner of the use of his vessel, as a sale after four months under the eighteenth section.

But, is this eighteenth section and the parts of the act supplementaxy to it mxcoxistitutioxxal ? I think not.

It- is said to be in conflict with that part of the State Constitution which declares, that no person shall “be deprived of life, liberty or property, without due process of law.” — Art. 6, §32.

This constitutional provision is borrowed from Magna Charta — not the language, but the idea, or principle. The phraseology is a little different, but the one great idea expressed is, that no one shall be deprived of life, liberty or property, except in pursuance of law. The language of the Great Charter is, by the law of the land; which Lord Coke, in commenting on the Charter, paraphrased due process of law. The two phrases, therefore, mean the same thing. And, history shows us, with the clearness of a sunbeam, the meaning of the former, and that it was not intended to protect the subjects of the King, against the legislation of' Parliament, but against the illegal and arbitrary acts of the king and his government.

Blackstone, in speaking of Magna Charta, says, it “confirmed many liberties of the church, and redressed' many grievances incident to feudal tenures, of no small moment at the time; though now, unless considered attentively and with this retrospect, they seem but of trifling concern. But, besides these feudal provisions, care was also taken therein to protect the subject against other oppressions, then frequently arising from unreasonable amercements, from illegal distress, and other process, for debts or service due to the Crown, and from the tyrannical abuse of the prerogative of purveyance and pre-emption.” He then proceeds to speak of its several guarantees, and concludes as follows: “And, lastly (which alone would have merited the title that it bears, of the Great Charter), it protected every individual of the nation in the free enjoyment of his life, his liberty, and his property, unless declared to be forfeited by the judgment of his peers, or the law of the land.” 4 Black. Com. 423-4. This great charter, he tells us, in another place, “ was obtained sword in hand from King John.”

This subject is so well presented historically; in the American Cyclopedia, under the head of Habeas Corpus, that I cannot refrain from extracting part of the article for its bearing on the subject under discussion. It is in these words: “Personal liberty was always asserted by the common law from its earliest ages; and it was always assailed by kings who would be tyrants; and, with an earnestness proportioned to their tyranny. Hence it became necessary to declare this principle in the^ost solemn manner in Magna Charta. It is there said, that ‘no man shall be taken or imprisoned but by the lawful judgment of his peers, or by the law of the land; and, this clause, more than any other, has given to that instrument the name of the Palladium of English liberty; a name which is deserved rather by the writ of habeas corpus. For, on the one hand, the greater charter did not enact this as a new rule of law, but only declared it to be the law of the land; and on the other its force and influence gradually faded, in despite of repeated formal confirmations; and this law became actual and operative only by means of the habeas corpus. This writ was issuaable from the King’s Bench, and it was used to protect or restore liberty, by bringing the prisoner before the court, whose duty it was to order him immediately discharged if he were not restrained of his liberty according to law. But it was evaded by courts and sheriffs who were disposed to support royal or ministerial usurpations; and it became so powerless, that early in the reign of Charles I. the Court of King’s Bench formally decided that they had no power to release any person imprisoned without any cause assigned, if he were imprisoned by the express command of the King, or by the Lords of the Privy Council. The Petition of Bight, of the third year of' the reign of Charles I. (1628), asserted this illegality of the decision, and declared that no freeman 'should be imprisoned or detained without cause shown, to which he may make answer according to law.’ But the means of enforcing this rule were still imperfect, and personal liberty was still violated; and by 16 Chas. I., ch. 10, various provisions were enacted, intended to make the writ of habeas corpus more effectual. But this was not enough* The judges still contrived to refuse the writ at their pleasure, or to insist it could be issued only in term time, and prisoners were sent to distant gaols, and sheriffs and gaolers refused to obey it; or if the party imprisoned were brought before an examining court, his liberty was still withheld on frivolous pretences. At length, in the 31st. year of the reign of Charles II. (1679), what is now always understood by the Habeas Corpus Act was enacted* It consists of a variety of provisions, devised with so much skill, and so well adapted to give each other mutual support, that it may safely be asserted, that personal liberty will be safe in England and the United States, so long as this law remains in force. Evasion of it is almost impossible.”

Here we see, as in a glass, the meaning of the words .paraphrased by Lord Coke — that the law of the land means the law of the land, and nothing more.

Judge Johnson, in the Bank of Columbia v. Okley, 4 Wheat. 235, in delivering the opinion of the Court, says-: “As to the words from Magna Charta, incorporated in the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the' good sense of mankind has at length settled down to this, that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the • established’ principles of-private rights and distributive justice.” In this case, a provision in the charter of the bank, giving it summary process by execution, in the nature of an attachment, against its debtors, who had by -an express consent in writing made the bonds, bills, or notes drawn or indorsed by them negotiable at the bank, was held not to be repugnant to the Constitution of the United States or of Maryland.

Sears v. Cottrell, 5 Mich. 254, was an action brought by Sears against Cottrell, who was a collector of taxes; for taking and selling a quantity of lumber belonging to plaintiff, lawfully in possession of J. & B. Bird,’ to pay a tax due from the latter. The act under which the tax was levied provided, that in case any person should refuse or neglect to pay a tax imposed on him, the collector of taxes should levy the same by distress and sale of the goods and chattels of such person, or of any goods and chattels in his possession, and that. no claim of property to be made thereto by any other person should be available to prevent a sale; and gave the owner of such property a remedy against the person liable to pay the tax. We held the statute in that case constitutional; and that the phrases, due process of law in our Constitution, and law of the land in Magna Charta, mean the •same thing.

Chappee v. Thomas, 5 Mich. 53, was decided by this Court in May term, 1858, preceding the decision of Sears v. Cottrell at the July term following. The question was the constitutionality of the statute authorising Circuit Courts,, on entering judgment on an appeal from a justice’s court against the appellant, at the same time to enter judgment against the surety for the appeal, on motion. The same objections were urged against the validity of the statute that were afterwards taken in Sears v. Cottrell. The court held the judgment correctly entered. Judge Christiancy, in delivering the opinion, says: “The bond is, we think, to. be read in all respects as • if the whole of the statute in reference to the appeal, the bond, and mode of entering up judgment upon it, were recited at length in the bond.”

If the bond was to be read in connection with the statute, as forming a part of the contract, in that case, is not the statute creating the lien, and providing for its enforcement, to be taken as a part of the contract for supplies? The only difference between the two cases is, that in that the agreement was in writing, while in this it is a. parol agreement. If that case, so far as it regards the reasoning of the Court, to which I have referred, was correctly decided, as I have ■ no doubt it was, the judgment of the Court in the present case, as it respects the constitutional question, should be for the plaintiff.

It may be objected that the reasoning to which I have referred in Chappe v. Thomas, stops short of the constitutional question. I do not think so. It assumes the validity of the statute. If the act was unconstitutional there was no statute, no law, to be interpolated by implication into the bond, and the reasoning of the court must necessarilly fall to the ground. Courts frequently reason in this way, but it is always upon an assumption of the law.

If it be said that in that case, another reason given by the Court was, that the party had waived the constitutional provision, or had precluded himself from raising the objection by giving the bond and claiming rights under the statute, the same is true of the bond on which the present action is founded.

If it be further said, with a view of showing the two cases are not parallel, that the defendant was under the necessity of giving the bond to regain possession of his vessel, the reply is, that in Chappee v. Thomas, the bond was necessary to perfect the appeal. '

The decision of Chappee v. Thomas must stand on one or other of the two grounds I have stated; and either is sufficient for the present case.

But we are met with the objection, that our construction of the constitutional provision renders it a nullity, and that it must, therefore, mean something else.

Under the same article of the Constitution we find the following: Excessive bail shall not be required; excessive fines shall not be imposed; cruel or unusual punishment shall not be inflicted, nor shall witnesses be unreasonably detained, §31. Suppose a statute to fix the amount of bail in a given case, can the court say it is excessive? Or the punishment; can the judge pronounce it cruel or unusual, and let the criminal go unpunished? Or the time a witness shall be detained to give evidence; can the court adjudge it unreasonable, and refuse to give effect to the statute? Where the statute leaves nothing to the discretion of the court, who is to judge of the excessiveness of the bail, or of the cruelty or unusualness of the punishment? Is it the law making power, the legislature? Or the law declaring power, the judiciary?

Every discharge from imprisonment, on habeas corpus, is in compliance with this constitutional injunction. Its insertion in Magna Charta was not the enunciation of a new law, but of what had always been claimed to be a part of the common law. Disregarded by the king and his government, it is true, but which he promised thereafter to observe. This promise, as we have already seen, was not kept by Mm, or enforced by ther courts, until the habeas corpus was secured to the subject in such a way that the courts could no longer evade their duty. Hence, in our -Constitution, we find the provision under the judicial department instead of the legislative department, where we find the following, in relation to the habeas corpus: The privilege of the writ of habeas corpus remains, and shall not be suspended by the Legislature, except in case of rebellion or insurrection the public safety require it,” §44. . This last is a limitation on legislative power; while the first is a mandate to the judiciary to see that no man is deprived of his property or liberty against the law of the land.

• This, it may be said, it would be the duty of the judiciary to do without any constitutional mandate. True. It was the duty of King John before Magna Charta, but did he observe it? It was the duty of the courts before as well as after, but they neglected it until spurred to the performance of their duty by the stringent provisions of the habeas corpus act of the Slst year of Charles II.

It may be that the rights of the government and citizen— those in power and those out — (for it was never necessary as between subjects), are so well understood at the present day as to stand in need of no such constitutional provision. But in this we discover no good reason for changing the original meaning of the words. Until those who contend for a different meaning can show us when the change took place, the occasion of it, and in what -it consists, we prefer looking to the circumstances in which the phrase originated for its meaning, rather than to groping in the dark and treacherous regions of conjecture for something new, where each one is at liberty to give a loose rein to Ms fancy in conjuring up something to suit himself. Those who have tried the experiment, though satisfied with it, acknowledge their inability to give us either the name or the virtues of the new god they worship

In the case before us, this new object of worship would seem to be the power to put down some great wrong,, that may possibly be done in giving effect to the act, in. some extreme case that may be supposed to arise underit. Not that it has arisen, but that it may'arise. Not. that it is before us in all its frightful mien, but that its dim outlines may be descried in the murky distance approaching the judgment seat. It will be time enough to deal with the phantom when it presents itself in cdurt,. and if the judicial quiver should then be found not to> contain an arrow that would pierce it, to frame one that, would.

The proceedings are against the vessel to enforce the-lien, which lien must exist to give them effect. The application for a warrant, to seize the vessel, must be in writing, specify the particulars of the demand, to whom it accrued, and the amount, and be verified by the affidavit of the claimant, or some credible person having a knowledge of the facts, § 3. This puts to flight the idea, that any one may trump up a claim against a vessel and have it sold. It cannot be done without the interposition, of perjury; and, it is not enough to condemn a- statute, that perjury may wrest it to iniquitous purposes. All judicial proceedings are subject to that infirmity.

Of a like character to the objection we have just been considering, is the further objection, that the vessel may be sold without the owner’s knowledge, and without his, having had an opportunity to controvert the existence of the lien, or its amount.

It can under no circumstances be sold under three and a half months after its seizure, and it may be four and a half months, or longer, before it is sold. During all off that time it is in custody of the sheriff. We can hardly suppose it possible for a vessel navigating our lakes to be that length of time in the custody of an’ officer, without its coming to the knowledge of the master, or owner,. But this is not all. Notice is required to be published for twelve successive weeks, once at least in each week, in a newspaper, setting forth all the facts, and that the vessel will be sold to satisfy the demand for which it has been seized, unless the owner, consignee or commander thereof, or some person interested therein, appear and discharge the warrant, according to law, within three months-from the first publication of the notice. How discharge-the warrant? By paying the demand, or giving the bond mentioned in the thirteenth section of the act.

A like notice is given under the statute to foreclose a mortgage at law, and it is difficult to give any good reason why a notice that is good for that purpose should be held objectionable in proceedings to enforce a lien against a vessel. The one is as likely to come to the knowledge-of the owner of the thing to be sold as the other.

The notice is also to all persons claiming a lien under the act to deliver an account thereof to the officer issuing the warrant within three months, or that their remedy against the vessel will be forfeited. And, in- Watkins v. Atkinson, it was held that creditors who failed to file their demands within the three months, lost their lien under the act. If the notice is good as to them, why not as to the owner of the vessel?

If the demand be valid the owner may have his vessel released on paying for it. If it be invalid, or for too large an amount, or if he wants time to pay it in, all he need do is to give a bond with surety for its payment, after judgment obtained on the bond for what is due in a court of competent jurisdiction. Or, if valid, and he is unable to pay it, to let the vessel be sold as soon as the proceedings under the statute will admit. The sooner the better, as every day it is in possession of the sheriff increases the expenses, which he will have to pay in the end, and lessens the surplus, if any, that will be coming to him. If this surplus is claimed by parties not entitled to it filing claims under the notice, the. statute makes ample provision for his contesting them before a jury. In all this I see no ground for complaint, but the reverse. Would he be benefited by a postponement of the sale to the close of a long and protracted litigation, with some one or more of the claimants? The sheriff’s fees, in the meantime, accumulating, and the vessel deteriorating from day to day more rapidly at the dock than it wpuld if in actual use? A case, occuring in a court of equity, in which the court would order the vessel to be sold, and the proceeds to be brought into court to abide the event of litigation.

I mention these things, not that they have anything to do with the constitutional question, but to show what seems to me the utter groundlessness of the complaints urged against the statute.

If we could suppose a case, which is highly improbable, of a .vessel sold on proceedings instituted under the statute by one having no lien, and without the owner having had any notice of the proceeding, would he lose his property in the vessel? I think not.

To divest one of his property by statutory proceedings, the statute must in all its essentials be complied with. And this must be shown by the party claiming under them in an action brought to test their validity. A sale for taxes, though regular, so far as it regards the form of the proceedings, gives no title if the tax had been paid, or if no tax had been lawfully levied. The foreclosure of a mortgage at law, under the statute, is unavailing for any purpose, if the mortgage has been paid. The purchaser, to make out a title, must show the- existence of the mortgage, as well as the regularity of the proceeding under the statute to foreclose it. We have a statute providing for the sale of personal property deposited with forwarding merchants, wharf keepers, warehouse keepers, &c., if the same is not claimed within three months. — Comp. L. p. 511. No court, I presume, would pronounce such a law unconstitutional; or that the title to property sold under it Would pass, if it had not been consigned to, or deposited with, such forwarding merchant, &c., although it might have been iu his possession when it was sold. There are other statutes of a like character to be found in the statute book, which I think it will not be claimed are unconstitutional, that are open to all.the objections that can be urged against the statute for the collection of demands -against boats and vessels.

Judgment affirmed.