author: Wins, J.

text:
    Thurston v. Prentiss et al.
    A. and B. became surety for the payment of two judgments against C., by the 16th July thereafter, and C. executed and delivered to them his promissory note and mortgage for $600, payable the 1st of August following, upon the understanding and agreement, that if C. paid the judgments and saved them harmless from all costs, trouble and expense on account of their having become surety for him, the note and mortgage were to be canceled. C. failed to pay the judgments. Meld,

    1st, That'A. and B., after the note and mortgage fell due, might foreclose the mortgage at law, by advertisement and sale under tho statute, to raise the money to pay the judgments, and rid themselves of their responsibility.
    2d, That A., who purchased the premises on the mortgage sale, held them subject to the right of C. to redeem, on paying the amount A. had paid as surety for the mortgagor, with the costs of foreclosure and interest, and that .a third person who purchased the premises of A., with a knowledge of the facts, took the land subject to the mortgagor’s equity of redemption.

      A surety who pays usurious interest to obtain time to' pay the debt of his principal in, cannot oolleot the excessive interest so paid by him of his principal.
    Where judgment is confessed by principal and surety on a note given for money loaned, including usury, and execution is taken out and levied on the gooda of the surety who pays the judgment, the principal is liable over to the surety for the usury paid by him, as well as the sum actually loaned with, interest.
    A docree may be made between co-defendants, grounded upon the pleadings and proofs between complainant and defendants.
    Where a statute gives anew right and prescribes a particular remedy, such remedy must be strictly pursued, and the party is confined to that remedy only; as to recover three-fold the amount of usurious interest paid, under E. S. 1838, p. 161, sec. 7.
    Appeal from the Court of Chancery. Case reported in Walk. Ch. R. 529.

      Backus, for appellant.

      Terry, for appellees.
   By the court,

Wins, J.

On the 15th of March, 1839, appellant applied to Azariah Prentiss, one of the defendants, for the loan of $300, and it was agreed between them that appellant should receive of Prentiss this sum, upon the terms that appellant should allow to Prentiss the sum of $100 for the use of the $300, or at the rate of sixty per cent until the 16 th day of Juty, when the sum loaned and interest was to be repaid; and appellant was to procure some one to sign with him two notes, each for $200, upon which they should confess judgments the same day, and that such judgments were to be stayed. Accordingly? appellant procured David Phelps to execute two notes with him to Prentiss, for $200 each, upon which they confessed judgments before a justice, and John Price became security for stay of execution in both judgments, until the ICth of the then next July. And then Prentiss delivered to appellant the $300; and appellant, at the request of Phelps and Price, executed and delivered to them his promissory note for $000, made payable on the 1st day of August then next, secured by mortgage, which note and mortgage were executed to Phelps and Price upon the understanding and agreement between them and appellant, that if he should pay the amount of the judgments and save them harmless from all costs, trouble and expense, on account of their having become surety for him on the judgments, then the note was to be given up and the mortgage canceled. After the expiration of the stay of execution, executions were sued out upon both of the judgments, and levied upon the personal property of Phelps, and he endeavoured to induce appellant to pay the executions, but without success. Phelps therefore, to save his property from sale on the executions, executed to Prentiss a mortgage on his own farm, for the amount of said judgments and ten per cent interest, payable 1st July, 1841. The executions were withdrawn. After the note to Phelps-and Price fell due, they foreclosed their mortgage under the statute; and on the 4th day of November, 1839, Phelps bid in the mortgaged'premises for the sum of $438,, and afterwards, on the 27th day of August, 1841, he assigned his certificate of purchase, and Price united with him in assigning the note and mortgage to Crissman for the sum of $500, of which sum they paid Prentiss, on the 27th August, 1841, the amount supposed to be due to him; since which period Crissman has held the note, mortgage and certificate.

The defendants are charged in the bill with having combined to get appellant’s farm for then- common benefit, and that all of the defendants except Dolby were originally concerned together in the scheme of loaning the money, talcing the note of $600 and the mortgage to secure it, and in its foreclosure, and that all were advised of the usury in the loan before they received or purchased the note and mortgage.

There is no proof of combination between the defendants. The defendants deny any knowledge of the usury except Prentiss; he says he is unable to say how it was, as two years had elapsed since he loaned the money. But it is abundantly proved that Prentiss loaned the money to appellant at the rate of sixty per cent per annum: that Phelps and Price were present at the time the money was counted, and Phelps handed it over to appellant, and that he only received $300. (Jrissman was fully advised of the usury long before he took an assignment of the note, mortgage and certificate. The illegal interest reserved in the notes and judgments did not avoid them; the statute authorized the collection of the amount loaned, and legal interest, deducting the usury.

At the time the mortgage was foreclosed, neither Phelps nor Price had been damnified by reason of their having become sureties for the appellant, neither did they pay any sum upon the judgments until August, 1841. The question arises, whether they were authorized, by the terms upon which they received the note and mortgage, to proceed to enforce the collection of the note by foreclosure of the mortgage, at the time they did so. After a careful examination of the bill, answer and proofs, I am satisfied Phelps and Price were authorized, and it was legally competent for them to foreclose the mortgage immediately after it fell due. The judgments had become due, and appellant had failed to pay them. The stay of execution was not entered pursuant to the statute, and therefore it did not operate to stay the executions; but it appears Prentiss did not take out executions until after the j>eriod it was agreed the judgments should be stayed. There is no condition expressed in the note, upon which it is to become due. It is like any other negotiable note. Then, assuming the understanding between appellant and Phelps and Price, in reference to the note and mortgage, to have been as stated, I am satisfied they were intended for something more than simple indemnity. Phelps and Price were hound to pay the judgments when they fell due, and when appellant failed to pay, they had the right to foreclose the mortgage to raise the means to pay the judgments, and rid themselves of the responsibility they had incurred. The amount they had to pay was certain. It is otherwise where the agreement is to save another from damage by reason of any matter, for that would be a security to indemnify. See this doctrine discussed and explicitly stated and explained in 1 Saund. 116, n. 1: Holmes v. Rhodes, 1 Bos. & Pul. 638; Hodgson v. Bell, 7 T. R. 97; 17 John, R. 239, 479; 7 Wendell 499; Penny v. Foy, 8 Barn. & Cress. 11; Theobald’s Prin. & Surety, 231; Thomas v. Allen, 1 Hill 145; 19 Wendell 423; 8 Cowen 631, 639; 3 Denio 323, 327.

I do not find anything in the pleadings and proofs which should subject appellant to the payment of any sum on account of the extra interest agreed to be paid by Phelps to Prentiss, and secured in his mortgage. I lay that transaction entirely out of the case, as I think Phelps was not authorized to contract for further delay upon the terms of paying usurious interest.

. Phelps and Price paid the amount due to Prentiss. Appellant did not interfere to protect them from paying either the amount actually loaned, or the usurious portion of it, and they were not bound to litigate the matter with Prentiss, to get rid of the usury. Appellant might have done so, and he was the only person interested in reducing the amount to be paid; but he neglected to interfere for the protection of his sureties, and Phelps was liable to have the judgments enforced 'against him. By his paying the whole, including the usury, the appellant became bound to refund, or' allow the same amoimt on settlement with him.

Then, if the foreclosure was binding upon the mortgagor, what right did the mortgagee acquire by his purchase at the sale of the mortgaged premises ? Had a third person become the purchaser, who was unacquainted with the usurious character of the original transaction, no doubt he would have acquired a perfect title as against the mortgagor, to the mortgaged premises after the period allowed by law for the redemption had expired; and if the premises were redeemed, he would have been entitled by law to exact and receive ten per cent interest on the amount paid by him at the purchase. But did the mortgagee occupy the same position, with the same rights ? It is true, that under the statute it was competent for him to purchase, but he could not, by his purchase, divest the land of the equities which existed between him and the mortgagor. If the mortgagor had gone forward and paid Prentiss the whole amount due him, and thus released Phelps from all liability to .Prentiss, immediately after the foreclosure, he could have enforced from Phelps a relinquishment of all interest in the mortgaged premises, upon paying to him the expenses of the sale. If a third person had purchased and paid the amount of the bid to Phelps, Phelps could only have retained so much as would be sufficient to pay Prentiss and the expenses of the sale: any balance that he might have received would have belonged to the appellant. Then, as Phelps held the certificate of sale (no matter how much he had bid), subject to a redemption by the mortgagor, by his paying to hiln the amount for which he was liable to Prentiss, or which he might have paid to Prentiss, together with the expenses of sale, did he divest these equities by an assignment of his interest to Crissman, who was fully advised of the facts ? I think not, for the assignee with notice could only acquire the rights of the assignor, consequently appellant is entitled to redeem by paying to Crissman the amount of the two judgments, with legal interest, together with the expenses of foreclosure.

Appellant insists that it is competent for this court to decree that Prentiss shall pay back to Phelps, or appellant, the amount of the excess of interest paid to him by Phelps. He insists that it is competent for this court to decree repayment either to the one or the other.

It is no doubt true that a court of equity may make a decree as between co-defendants, grounded upon the pleadings and proofs between complainants and defendants. It is the constant practice of courts of equity to do so, to prevent multiplicity of suits. See 2 Sch. & Lef. 710, 718; 2 Ball & Beatty 255; Jones v. Grant, 10 Paige 350. The chancellor might have decreed that Phelps should refund to Crissman the difference between tbe amount he may receive from appellant and the amount he paid to Phelps. But as the defendants did not appeal, and appear to have been satisfied with the decree of the (chancellor, and their counsel does not now ask it, we do not feel authorized so to decree. Neither could we decree a repayment of the excess of interest, received by Prentiss,- to Phelps, for the same reason. And we cannot decree that Prentiss shall repay to appellant the excess received by him above the $300 loaned and legal interest, even assuming that the payment made by Phelps was for appellant, and that it may be considered as his act. If the bill of complaint had been filed and injunction granted before Phelps had paid Prentiss, there would have been no difficulty in decreeing a satisfaction of the judgments on the payment to Prentiss of the $300 and legal interest; but the bill was filed after Phelps had paid to Prentiss the amount of the judgments, with ten per cent interest thereon. It was upon the ground that the chancellor refused to decree that Prentiss should repay the excess of interest, that the appeal was taken from the decree of the chancellor to this court.

In England it has been held, that though their statute does not go so far as to make the party receiving the usurious interest liable to refund, yet as it prohibited the taking beyond such a sum and avoided the contract, the taking was a breach of the statute; and the actual receipt of the money will (in a court of equityjmake him liable to refund: the wrong being the same whether the usurious interest hath been actually paid or not. 10 Bac. Abr, 293, G, new edit. In 1 Story’s Eq. Juris. sec. 302, it is stated, that if the borrower has actually jraid the money upon an usurious contract, courts of equity, and, indeed, combs of law also, will assist him to recover back the excess. This doctrine is based upon the English decisions.

It is true, as a general proposition, that where parties are concerned in illegal agreements or other transactions, whether they are mala prohibita or mala in se, courts of equity, following the rules of law as to participators in a common crime, will not at present interpose to grant any relief — acting upon the known maxim, in pari delicto potior est conditio defendentis, et possidentis. In cases of usury, the rule is somewhat different. As we have seen, in England their statute of usury declares all such contracts, and all the securities taken under them, void;, and their courts of equity follow the law courts in the construction of the statute. If the lender comes into a court of equity seeking to enforce the contract, the court will not aid him; but if the borrower seeks relief in that court, it will relieve him against the usurious portion of the contract only upon the terms of his paying the actual amount loaned and interest; and it is upon this principle, that if the borrower has paid the money upon an usurious contract, courts of equity will assist him to recover back the excess paid above lawful interest. The borrower is not held to be a pariiceps criminis, and it is no just objection to say that volenti non Jit injuria, for if in delicto he is not in pari delicto. His is the case of a man who from mere necessity pays more than the other can in justice demand, and who has been significantly called the slave of the lender; and as to being particeps criminis, he stands in vinculis, and is compelled to submit to the terms which oppression and his necessities-impose upon him. 1 Story’s Eq. Juris. 302. But, as we have said, the decisions at law and in equity in England are founded upon their statutes. With us the subject of interest on loans is governed by a special statute, and excludes the application of common law principles, either to rights or remedies growing’ out of contracts made under it.

The third section of R. S. 1838, p. 160 (under which the loan in this case was made), declared that the rate of interest should continue to be at the rate of seven dollars, and no more, upon one hunched dollars for a year, and at the same rate for a greater or less sum, and for a longer or shorter time. The fourth section, unlike the English statute, enacts, that “ none of the securities whereby or whereon a greater rate of interest has been directly or indirectly reserved, taken or received than is allowed by law', shall be thereby rendered void; but the same may be enforced as provided in this chapter.” What are those remedies ? They are found in the fifth and seventh sections of this chapter, and they are two-fold:

1. In any action brought on any contract or security in which usury is reserved, if the fact is made to appear, the defendant shall recover his full costs, and the plaintiff shall forfeit three-fold the amount of the usurious interest so reserved, taken or received, and shall have judgment for the balance only which shall remain due after deducting from the principal and lawful interest the said three-fold amount.

2. The party paying the usurious interest may recover back threefold the amount of the excess of interest paid in an action of debt: provided, such action shall be prosecuted within one year from the time when such interest shall have been paid.

These are the only remedies prescribed by the statute, and resort cannot be had to any other.

Our statute is nearly a literal copy of the statute of Massachusetts: with this difference, however, that the Massachusetts statute authorizes the recovery of three-fold the whole interest paid by an action of debt, or by a bill in chancery. Our statute only authorizes an action of debt.

It is a well estalished principle of law, that where a statute gives a new right and prescribes a particular remedy, such remedy must be strictly pursued; and a party seeking the remedy is confined to that remedy, and that only. 1 Com. Digt. 44-7-8; 9 Bac. Abr. 259, 260; 2 Burr. 803; 1 Blackf. R. 405; 2 Saund. Pl. and Ev. 829; 5 John. R. 175; 3 Mass. 307; 5 id. 514.

In the case of Wiley v. Yale, 1 Metcalf 553, it was held by the supreme court of Massachusetts, that a party who paid a greater rate of interest than was allowed by law, could not recover back three-fold the amount of interest paid, by an action of trespass on the case, but only by an action of debt or a bill in chancery, as provided by their revised statutes.

In a subsequent case in Massachusetts, Crosby v. Bennett, 7 Metcalf 17, the point raised in this case was directly decided by the supreme - court of that state. An action for money had and received, was brought to recover the amount of interest paid above six per cent. It was urged by the counsel for the plaintiff, that the action lay after their revised statutes had given the action of debt or bill in chancery — that those remedies were only cumulative. In support of this position, he cited 2 Com. on Con. (1 ed.) 113, and cases there cited; Wheaton v. Hibbard, 20 John. R. 290. Ch. J. Shaw, in delivering the opinion of the court says: “ The authorities cited certainly tend to show that so long as an usurious contract was declared illegal and void, it followed, as a necessary consequence, that money paid thereon was taken illegally, and was oppressively extorted from the borrower, and, therefore, that this equitable action would lie to recover it back: hut now the revised statutes expressly declare that no such contract shall be void, and in order to restrain the taking- of usurious interest, the statute goes on to make specific provisions. The consideration that now. by law the contract is not void, distinguishes this case from those cited, 'and takes away the ground upon which they rested. The ground upon which it was formerly held thaf an action for money had and received would lie, was, that it was illegal and oppressive to take more than six jrer cent, interest, and, therefore, it could not conscientiously be retained from the person who paid it. But under our statute, the contract is not illegal, and the party who has suffered by paying usurious interest is confined to the statute remedies. The right to recover back three times the amount of the usurious interest is given by the statute to the party who has paid, and is partly in the nature of an equitable action to recover back money which the defendant cannot conscientiously and justly retain, and partly in the nature of a penalty. So far as the statute affords a remedy to' recover back money wrongfully taken — it is a substitute for the remedy at common law. If, therefore, the party might waive the statute and sue at common law, he would avoid the provision limiting such action to two years from the payment, contrary to the manifest intent of the legislature and the policy of the law.” The reasoning in this decision, it appears to me, is conclusive, and shows that the appellant cannot have, nor can either of the defendants have, any redress against Prentiss in this suit. See, also, 1 Met-calf 553, 398; 6 id. 296.

The statute gives the only remedy, and the parties'are confined to it; the contract was made in referene to it; and even if the remedy by statute was repealed, yet the parties would not 'be entitled to a remedy in a court of equity, or by an action for money had and received. 9 Bac. Abr. 226-8; 1 Hill 333-5.


source: Caselaw Access Project

author: Gkeen, J.

license: Public Domain

text:
    Norris et al. v. Hill.
    Where N. and M. owned a water power with a grist mill and saw mill, as tenants in common, and they divided a partí of the property so hold in common between them, one taking the grist mill and the other the saw mill, and executed releases to each other, tho releases must ho taken and construed together as one instrument, and with reference to all tho surrounding circumstances to which they obviously and directly point; and by such circumstances, not only the parties, but all persons claiming title under them, are hound.
    It is a general rule of law and equity, that where a purchaser cannot make out a . title but by a deed which leads him to another fact, he shall he presumed to , have knowledge of that fact.
    A grant of land hounded by a stream, carries with it tho hod of the stream to tho centre, unless a contrary intention clearly appears from the conveyance itself.
    The provision of R. S. p. 509, conferring jurisdiction, in eases of nuisance, on equity courts, was not intended to extend or enlarge their jurisdiction.
    Where complainants owned the water power on the east side of a river, and one half of the water power on the opposite or west side — thedefondant owning the other half, and defendant had occasionally used more than his share of the water on the west side of tho river, hut no suit had been brought against him for doing so, and complainants had no machinery on that side of the river to ho propelled by water, an injunction will not he granted restraining defendant in tho use of the water.
    Where complainants, who were the owners of three-fourths of a water power, were compelled to purchase a piece of land to secure to the proprietors of tho powor tho right to flow it, a court of equity will not decree contribution by tho owner of the other fourth of tho water power.
    Appeal from the Co-uvt of Chancery. Norris and Folletl, the complainants, and the defendant IiilJ, were the owners of separate mill property on the Hm on river, at Ypsiknti; their mills being on opposite sides of the river, and supplied with water by a dam extending across the river from one' hank to the other. Complainants were the owners Of the water power on thc‘east side of the river, where their mills were, and'claimed to bo the owners of one half of the water power on tho opposite or west side of tho river, where Hill had his mills, and they filed their bill in the court below against Hill and others, to restrain defendants from using more than their proportion of ,tho water, and to have the rights of the respective parties to the use of the water determined: also to compel Hill to pay a just proportion of certain purchase money that had been paid by complainants for lands flowed by the dam, in order to secure the right of flowing them. The court below having made a decree in -favor of complainants, Hill appealed. The facts are fully stated in the opinion of the court

      Bachus ’<& Lane, for appellees.

      Buckbee <& Emmons, for Hill, the appellant
   By the court,

Gkeen, J.

The defendant seeks to reverse the decree made by the chancellor upon two grounds: 1st, That if the complainants have shown any wrong on the part of the defendant, they have an adequate remedy at law, and he therefore claims the same benefit as if he had demurred to the bill for that cause: and 2d, That the defendant has done no act which is in violation of the complainants' rights, even if such rights exist to the extent claimed by the bill.

In order to arrive at a satisfactory solution of the questions involved, it will be necessary, in the first place, to inquire what are the rights of the respective parties in reference to the subject in controversy. For this purpose, it will not be necessary to go back beyond the 1st of April, 1831, at which time, as the pleadings and proofs show, Norris and Me Intyre were the owners, as tenants in common, of about three acres of land in Ypsilanti, on the west side of the Huron river, and extending along the river above and below the mill dam, one end of which was attached to the west bank of the river, with a saw irCill and grist mill, and other buildings thereon. The deeds from Hardy and wife to Norris, and from Reading and wife to McIntyre, under which they held, b oth described the premises as being bounded on one side by the river, and there can be no doubt that they owned the land to the thread or centre of the stream, according- to the general rule of law, that persons who own lands on the different sides of a private stream, hold to the middle of the stream, unless the language of the grants under which they hold clearly shows tho»intent of the parties to fix the boundaries at the edge of the stream. People v. Canal Appraisers, 13 Wendell 355; Lunt v. Holland, 14 Mass. 149; Arthur v. Case, 1 Paige 447.

At the same time, Norris owned the land to which the dam was attached, on the east side of the river, upon which he has since erected hydraulic works, whereby he and those claiming under him were and are entitled to one half of the usufruct of the water secured by the erection of the dam, as an incident to the ownership of the land on that side of the stream. 1 Paige 447. This separate ownership of Norris constituted a separate and distinct interest, as much so as if it had been owned by any other individual; and in considering this case, therefore, for the purpose of ascertaining the true rights and interests of the parties involved in the controversy, regard must bo constantly had to this state of things.

From the period before mentioned until the 29th of September, 1832, Norris and McIntyre continued to be the owners of the mill property on the west side of the stream as tenants in common, and as such they were entitled to the use of one half the water raised by the dam, for the purposes of their mills. On the last mentioned day, each of them, by deed of that date, released and quit claimed to the other a portion of the common property; and the main difficulty in settling the rights of the parties will be overcome, if we shall be able to arrive at a satisfactory construction of those deeds.

The description in the deed from Norris and wife to McIntyre is in the following words:

“ The equal undivided half of, in and to all and singular that certain tract or parcel of land situated in Ypsilanti aforesaid, on which is erected a saw mill, and more particularly described as follows: Beginning at the north east corner of the Godfrey tract so called, running thence down the Huron river to within thirty eight feet of the west end of the mill dam attached to the flume of said saw mill, thence west two rods, thence south three rods, thence east to the Huron river, thence down the river Huron to the south east corner of said saw mill, thence a westerly course to a stake and stones placed as a corner on the west line of said mill lot, thence north thirteen degrees and forty five minutes west four chains and five links to a corner on the north line of the Godfrey tract so'called, thence easterly on said line to the place of beginning ; and also a free discharge of water from the said saw mill, or such other buildings as the said Timothy McIntyre shall erect, through and under the grist mill owned by the said Mark Norris, and without any obstruction on the part of the said Mark Norris,”

The deed from McIntyre and wife to Norris contains the following description, to wit:

The equal undivided half of, in and to all and singular that certain tract or parcel of land situate in Ypsilanti aforesaid, on which is erected a grist mill and a building formerly used as a pail factory, and more particularly described as follows, viz: Beginning a short distance below the said pail factory, at the river 'Huron, north eighty degrees east of a crotched red oak stump standing on the top of the bank, running from thence to said crotched stump, thence south eighty degrees west two chains and twenty two links to a stake and stones placed for a corner, thence north thirteen degrees and forty minutes west two chains and twenty five links to a stake and stones, thence on an easterly course to the south east corner of a saw mill there standing, immediately abovo said grist mill, thence south to the place of beginning, it being the south part of the mill property heretofore owned by said McIntyre and Norris, and purchased by them of Asa H. Reading and David Hardy.”

By these deeds, a division of so much of the common property was effected as is covered by them; and they must be taken and construed together as one instrument, in the light of all the surrounding circumstances to which they obviously and directly point; for by such circumstances, not only the parties to the deeds, but all persons claiming under them are hound, it being a general rule of law and of equity, that “ when a purchaser cannot make out a title but by a deed*which leads him to another fact, he shall be presumed to have knowledge of that fact.” 1 Story’s Eq. Jur. sec. 400; 3 Mason 531; 2 Ch. Cases 246; Ambler’s Rep. 311; 2 Fonb. Eq. b. 3, ch. 3, sec. 1, note b.

It appears, then, that at the date of these deeds, there was upon the part conveyed to Norris a- grist mill, and on the part conveyed to Me Intyre a sawmill; and by reference to the deeds under which Norris and McIntyre held the premises, it appears that such mills were on the premises at the time of their respective purchases from Reading and Hardy; and that by such purchases they became the owners of the land to the thread of the stream, and as such were entitled to one half of the usufruct of the waters of the Huron river. The partition deeds also s}¿ow that there was a dam connected with the west bank of the river, upon the common property; one half of which, or that portion of it which extended from the thread of the river to the west bank, and a small piece of land extending two rods beyond the west end of the dam, were omitted in the partition, and continued to be holden in common by the parties.

It is conceded, as a legal consequence resulting from this state of facts, that Norris and those claiming under him were and are entitled to an equal share of the water right on the west side of the river, with McIntyre and those claiming under him. By reference to the description of the eastern boundary in the partition deeds, as located by the actual'survey which was exhibited in the proofs, it clearIy appears that neither party could draw water from the dam, to be used on his separate lands, without using some portion of the common property for that purpose.

The description in the deed from McIntyre to Norris, as “ being the .south part of the mill property heretofore owned by said McIntyre and Norris, and purchased by them of Asa H. Reading and David Hardy,” and as being that part “ on which is erected a grist mill,” and the description in the deed from Norris to McIntyre, as being that part on which is erected a saw mill,” lead us directly to the fact that these premises were devoted to milling purposes, and that in order’to make them available for such uses, the water must be drawn from the dam by means of a race or flume, with the necessary bulk-head, gates, &e.

By the term “ grist mill,” in the'deed from McIntyre to Norris, must have been intended a mill with all the necessary incidents connected with it, to make it available as such, as contradistinguished from a mere building; for this term is immediately followed by the woads, “ and a building formerly used as a pail factory.”

Being led to these facts and circumstances by the deeds themselves, under which the parties to this suit claim title, we are put upon the inquiry, what was the mode of using the water from the dam for the purposes of -the mills by the respective parties at the date of the deeds ? And upon this point we find the proof sufficiently clear and satisfactory. The water was conveyed from the dam to the respective mills, by means of a flume, divided at the head-gates by a partition, one branch of which extended to the saw mill, and the other to the grist mill; and the flume, or that portion of it which was used in connection with the grist jnill, was situated on the easterly side of that which communicated with the saw mill, and beyond the margin, or over the bed of the river.

From these premises 'the first, and perhaps the most important, question arises, as to the extent of the several grants from McIntyre to Norris, and from Norris to McIntyre: in other words, whether, by virtue of such grants, they respectively became entitled to the land to the thread or middle of the stream, or whether they were limited by the margin of the river.

The defendant insists, and his counsel have argued with much earnestness and great ingenuity, that these grants carry the parties to the middle of the stream, with the exception of the strip three rods in width at the west end of the dam, and including the land on which the dam stands; and that, inasmuch as no easement is reserved by or granted to Norris, to enable him to carry the water from the dam across the lands granted to McIntyre, the right which he is conceded to have to the usufruct of one-half the water on the west side of the fiver, as incident to his common ownership of the land on which the dam stands, is, and must remain, wholly unavailable to him. If this be the true construction of the partition deeds, the defendant, Hill, holding- the title which McIntyre had, is made perfectly secure, for all beneficial purposes, in the entire use of one-half the water of the river. In support of this construction, reference is made to the grant by Norris to McIntyre of the right to a free discharge of water from the saw mill, or such other buildings as McIntyre should erect, through and under the grist mill owned by Norris.

The well established doctrine was laid down in the case of The People v. The Canal Appraisers, before referred to, as to the right of ripsrrian proprietors; and unless a contrary intent of the'.parties clearly appears from the deeds under which they hold, such proprietors hold to the thread of the stream. That intent must be gathered from the entire instrument, which is to be construed in reference to the subject of the grant, and the surrounding facts and circumstances • to which it leads.

Several of those facts and circumstances have been referred to, and so much-of the language of the deeds as is material for that purpose has been noticed. It is evident, then, that the parties did not undertake by their deeds of partition to divide the whole property owned by them as teuants in common. The dam, and the land on which it stands, and a p>ieee of land extending two rods beyond the end of the dam, were still retained as common property, and the right to an eqnal rise of the water, as incident to such common ownership, still remained as before; and the land covered by the water raised by the -dam, must of necessity subserve the same common purpose, so long as the dam should be kept up, that it had done before. There is nothing in the deeds that implies any intent by either party to abandon the use of the water for the purposes of the mills then in operation; but on the contrary, every thing in the language of the deeds implies that both parties contemplated the continued use of it for such mills, or others which they might after-wards erect.

By limiting the parties to the boundaries fixed by their grants respectively, their legal and equitable rights to the usufruct of the water are protected. By extending those boundaries to the middle of the stream, the just rights of one party are practically taken away and conferred upon the other.

In view of all these considerations, there can hardly be any doubt, as to the proper construction of the deeds, nor but that the parties must clearly have intended to limit themselves by the bounds they prescribed. This construction renders the grant by Norris to McIntyre of a right to a free discharge of water through and under his grist mi 11, entirely consisten^ with’ the claim of the complainants to an easement for the purpose of a. flume over the bed of the stream; for neither of them reserved or conveyed, by any express language in the deeds, any easement in or over the common property; and if one of them might use it, the other had the same right.

The defendant, George Hill, holding the title which McIntyre had, has the same rights which McIntyre possessed, and no greater, unless intervening circumstances have occurred to extend them. But it is contended that when he purchased of Ballard, the old flume which had been used by Nonas to supply his mill had been removed, and the use of the mill abandoned by Norris, and that he purchased in good faith, without knowledge of Norris’ right, if any he had, to keep up a flume where the old one had stood. It appears from the pleading and proofs, that Norris continued to use .the old flume to supply his mill from the time of the division in 1832, until after Ballard had erected his new mill in the fall of 1839, when Ballard cut away a portion of it, and appropriated the remaining portion for supptying his own mill. The defendant, Hill, admits in liis answer upon information, the cutting- away of the old flume by Ballard in the month of October, 1839, and charges that Norris prosecuted an action at law against Ballard for damages, which was settled, &c.; that he is informed that Norris claimed to have some right, either by custom or otherwise, of the precise character of which he is unadvised, to draw water from the dam through the east part of said flume. Ballard, also, in his direet testimony says, that at the time he contracted with Hill to sell the flouring mill and saw mill property, he told Hill that there ivas a difficulty with Norris about the flume; that he had cut it away, and Norris had sued him for doing so, and that Norris claimed a right to use water on that side of the stream. Here is strong evidence of actual notice to Hill of the existence of the old flume, and the use of it by Norris for supplying his grist mill at the time of the purchase from Ballard. But whether this be conclusive or not, Hill had knowledge, from the recorded deeds, of the right of Norris to use the water, and this was sufficient to put him upon inquiry as to the manner in which he had a right to convey it from the dam to his mill.

Having arrived at the foregoing conclusions as to the rights of the respective parties, holding the titles of Norris and McIntyre respectively, the next question is, whether the complainants have shown such a case as entitles them to the relief asked by the bill. One of the grounds upon which relief is prayed, is, that for the last two or three years the defendant has frequently, especially in times of low water, drawn upon the west side more than half the water of the river. If the charge in that behalf contained in the bill were prima fade sufficient, the testimony shows, at most, but an occasional or casual infringement of the complainants’ rights, and is altogether too loose and unsatisfactory to justify this court in acting upon it, especially as it does not show any intention on the part of Hill, or those acting under him, to continue such infringement.

Another ground upon which relief is prayed is, that Hill, in violation of the rights of the complainants, has, ever since he became the owner of the mill erected by Ballard, kept up and maintained a flume from the dam to his mill, on and over the same land which was covered by the old flume connected rvith Norris’ grist mill, to the exclusion of the complainants, and that he- has used, and continues to use, more than one quarter of the water of the river. Admitting these charges to be true, and they seem to be established by the pleadings and proofs, it does not follow that the extraordinary powers of this court can be exerted to enjoin the defendant. “ In regard to private nuisances, the interference of courts of equity, by way of injunction, is undoubtedly founded upon the ground of restraining irreparable mischief, or of suppressing oppressive and interminable litigation, or of preventing multiplicity of suits.” See 2. Story’s Eq. Jur. sec. 925; Fonb. Eq. by Jeremy, 49, 50, in notes. *

The provision of the R. S., p. 005, conferring jurisdiction, in cases of nuisances, upon the chancery courts, was referred to in the argument; but that provision was not intended to enlarge or extend the jurisdiction of those courts. Upon which of the grounds above mentioned the interference of a court of chancery can be invoked in this case, it is not easy to perceive. Hill has been in the possession and use of his mill, using the land and the water in question for several years, and no suit at law or other litigation between these parties ever appears to have been instituted or had, nor is it at all apparent, or jierhaps ju'obable, that any litigation will be unavoidable to enable the complainants to secure and maintain their rights. Upon the ground of restraining irreparable mischief this ease equally fails. The complainants do not appear to have made any actual attempt to use their water right on the west side of the river since Hill purchased his mill, nor to have provided any means of doing so. On the contraiy, it appears that soon after Ballard cut away the flume in the fall of 1839, the valuable portions of the machinery wore removed from the old mill, and the use of it as such was abandoned, since which time neither of the complainants has had any machinery on that side of the river, to be propelled by water. Until they have some use for the water power pertaining to that side of the stream, they cannot bo injured by the use of it by Hill.

But it is insisted,' on the part of the complainants, that the court of chancery has power to ascertain and determine, by decree, the rights of the respective parties to the use of the water, and to secure those rights by causing the water to be measured and guaged, so that each may draw his just share, and no more. This case, as made out by the proofs, does not seem to come within the principle of any of the cases cited in support of the jurisdiction. In the case of Belknap v. Trimble, 3 Paige, 577, the court held, that where different mill owners have a common right to an artificial use of water for their respective mills, the coiu-t of chancery has jurisdiction so to regulate the common use of the water, as to preserve the rights of each. In that case the complainants were the owners of mills, exercising- their right, as far as the' acts of the defendant did not prevent them, arid the acts complained of were destructive of the complainants’ business, and the court might properly interfere upon the ground of preventing immediate and in-e-parable mischief. ' No such ground is shown in this case, arid it will be early enough to invoke the preventive power of a court of chancery, when the exigency happens which calls for its exercise.

There is another branch of this ease, entirely distinct and separate from that which litis been considered, and no way connected with it, except that it relates to the creation or sustaining of the -water power, The complainants allege that they are the owners of two several parcels of land above the dam, partly flowed by the water raised by said dam, which Norris was compelled to purchase, in order to secure to the proprietors of the water power the right of flowing the same; and they pray that the defendants, or one or more of them, may be decreed to pay to complainants one-fourth of the sum paid by Norris for said lands, with interest, or to pay a yearly compensation in damages for the flowing of the same. No ease has been cited where such a power has been exercised by a court of equity under circumstances like these. The case of Rogers v. McKenzie, 4 Vesey 752, was between the joint and separate estates of bankrupts, who were jointly and severally bound for a debt to the crown. That of Wright v. Hunter, 5 Vesey 792, and that of Sells v. Hubbell, 2 John. Ch. R. 394, were cases of contribution between the estates of copartners. If the court has power to decree payment by Hill of one-fourth of the purchase money, or the payment of damages resulting from the flowing, rt would follow that the court could and ought to inquire into the relative amounts paid by any of the parties, or those under whom they claim, for all the lands flowed by the water raised by the dam; or the damage which each of them sustains by reason of the flowing of his land, so that each party might be placed upon an equality with the other in that respect. This is not asked by the bill.

A court of equity will not take jurisdiction of a matter which does not come within the principles of any adjudged case, nor any of the established principles upon which equity jurisdiction is based: and this seems to be a matter of that character. Certainly the principle of contribution has never been extended so far.

* Norris, in order to entitle himself to any just right to complain, should at least have consulted his co-tenant, and given him an opportunity to take part in the negotiations for the purchase if he thought proper to do so. Suppose an action on the case had been brought by the owners of these parcels of land, against all the proprietors' of the dam, and judgment recovered, and the whole collected out of Norris. Such judgment being for a tort, Norris could not have compelled a contribution, either in a court of law or of equity. Ellis v. Ellis, 2 Johns. Ch. R. 131.

From the view taken of the true construction of the partition deeds between Norris and McIntyre, and the rights of the parties holding their respective titles, it becomes unnecessary to decide several of the questions made on the argument, and which are not now noticed, although every question raised has been fully examined; but it may be hoped that the full exposition of the rights of the parties which has been attempted so far as became necessary in the decision of this case, will guide them in making such a just and amicable arrangement for the future protection and exercise of those rights, that no occasion may hereafter arise for an appeal to the remedial powers of a court of chancery.

The decree of the court of chancery in this case must be reversed, with costs.

Decree reversed.


author: Miles, J.

text:
    McKibben v. Barton.
    A creditor’s bill filed after the return of an execution unsatisfied, to react equitable assets and to set asido a fraudulent conveyance of real ostate made by tlio debtor to a third person, earniot be sustained against tho latter unless the creditor has obtained a lien on the real estate by a levy of his execution.
    Appeal from Oakland Circuit Court in Chancery. McKibben, the appellant, and William Edwards, who died pending the suit, filed their bill in the circuit court against Hubbard, Mooney and the appellee Barton, to reach equitable assets belonging to Hubbard, against whom the complainants had a judgment, and to set aside as fraudulent a conveyance of real estate made by Hubbard to Mooney. The bill set out a judgment against Barton in favor of complainants, the taking out of execution, and the officer’s return of the execution wholly unsatisfied, and contained all the usual allegations of an ordinary judgment creditor’s bill under the statute. It also averred that certain real estate, described in the bill, had been conveyed by Hubbard to Mooney to defraud creditors, and that Mooney had afterwards, at the request of Hubbard, conveyed the same to Barton, the appellee, who was Hubbard’s sister. Hubbard and the appellee Barton demurred to the bill. On the argument of the demurrer, the court below overruled it as to Hubbard, but allowed it as to Barton, and dismissed the bill as to her. From that part of the order allowing the demurrer and dismissing the bill as to Barton, McKibben, the surviving complainant, appealed.

      Manning, for appellant.

      Goodrich, for appellee.
   By the court,

Miles, J.

There is undoubtedly a class of cases in which the aid of a court of equity may be invoked in behalf of a judgment creditor, where such aid is rendered necessary by the interposition by the defendant of some fraudulent or inequitable obstruction to the collection of the judgment, independently of which the remedy would have leen ample at law.

In such case the party proceeds upon the ground that the defendant lias property, either real or personal, liable to execution upon his judgment : but that by the obstruction interposed, such execution is prevented from having full effect.

The bill- in this case contains the necessary allegation that the defendant has such property, and also a sufficient statement as to the fraudulent conveyances; but it is insisted that the complainant has not acquired a title to the land by the issuing and levy of an execution thereon before the filing of the bill.

Much learning has been expended in this case as to the meaning of this word title. I take it to mean no more than this, that the party has acquired a right to the property in dispute — a right to question the title of the fraudulent grantee — who holds by conveyances giving him-a perfect title as against the grantor, but which may be avoided by a creditor.

In McElwain v. Willis, 9 Wendell 561, a leading case in New York on this subject, Nelson, J. says, “the jurisdiction of the court rests upon the right or title of the complainant acquired by the proceeding at law upon the judgment or execution.” It will be remembered that in that state a judgment at law becomes a lien upon real estate from the time it is docketed, and that personal property liable to execution is holden from the time of the delivery of a writ of fieri facias to the sheriff.. This doctrine seems to be well sustained by the authorities.

In the early case of Angel v. Draper, 1 Vernon, 399, a demurrer was sustained to a bill by a judgment creditor to reach the goods of his debtor in the hands of a fraudulent assignee, for the reason that the plaintiff ought actually to have sued out a fieri facias before he filed his bill. Shirley v. Watt, 3 Atk. 200, was a bill to redeem a leasehold estate: held, that until execution the plaintiff had no lien on the estate, and the bill was for that reason dismissed.

These two English cases are referred to in Wiggins v. Armstrong, 2 John. Ch. R. 144. Chancellor Kent there states, “ the reason of the rule seems to be, that until the creditor has established his title he has no right to interfere, and it would lead to an unnecessary, and, perhaps, a fruitless and oppressive interruption of the exercise of the debtor’s rights. Unless he has a certain claim upon the property of the debt- or, he has no concern with his frauds.” See, also, 1 Dev. Eq.R. 107.

The law upon this subject is so well settled and so clearly expressed in the opinion of Chancellor Walworth, in the case of Beck v. Burdett, 1 Paige 308, that I use his words as better than any language of my own. He says: “ There are two classes of cases where a plaintiff is permitted to come into this court for relief, after he has proceeded to judgment and execution at law without obtaining satisfaction of his debt. In one case, the issuing of the execution gives to the plaintiff a lien upon the property, but he is compelled to come here for the purpose of removing some obstruction fraudulently or inequitably interposed to prevent a sale on the execution. In the other, the plaintiff comes here to obtain satisfaction of his debt out of property of the defendant which cannot be reached by execution at law.”

It will be observed that in that case it was personal property that was alleged to have been fraudulently assigned, and that is why the chancellor speaks of the lien having been obtained by the issuing of an execution. It is true he speaks of an actual levy being necessary to enable the plaintiff to hold the property against other execution creditors, or bona fide purchasers: but this is founded upon the language of their statute, exempting such persons from the effect of the lien created by the mere delivery of the fi.fa. to the sheriff.

The chancellor refers to Angel v. Draper, and Shirley v. Watts, as being cases of the description first mentioned, and to McDermutt v. Strong, 4 John. Ch. R. 687, as one of the latter class — for the reason that in that cause the interest of the judgment debtor was not a proper subject of seizure and sale upon execution, and that in such case the actual return of the execution unsatisfied, is necessary to give the court of chancery jurisdiction to decree satisfaction out of the equitable property of the defendant.

In such case it is also held, upon the authority of Edgell v. Haywood, 3 Atk. 357, that it is the filing of the bill after the return of the execution at law, which gives the plaintiff the specific lien. In this state no lien is acquired at law upon real estate, until the actual levy of an execution.

The complainant in this case, therefore, had not acquired such a right to the real estate conveyed to Barton as to entitle him to be aided in enforcing his execution at law upon the judgment. He does not show that if he could successfully dispute the title of Barton he would be en-tilled to the benefit of tbe decree of this court. But it is insisted this is a good creditor’s bill under the statute.

Piad .the defendant Hubbard retained any equitable interest in the land, such interest would be the proper subject of a creditor’s bill; and if there was no fraud, the grantee would be an unnecessary party to the bill, as the complainant, by tbe decree of the court, would be subrogated to all the rights of the defendant, including tire right to call upon the trustee in the same manner as the defendant himself might have done. Edmeston v. Lyde, 1 Paige 637.

But where no rights remain to the debtor, none could by the decree be transferred to tbe plaintiff, and his bill would be entirely ineffectual for that purpose. Id.

The complainant cannot reach this property as equitable assets in the hands of Barton. The conveyance being fraudulent as. to him, he has a right to treat the property as though it had never been made, and only needs the assistance of this court to remove the cloud thrown over the title, to have satisfaction under his execution at law; but he is not entitled to that assistance until he places himself in a position to ask it.

It follows, that the decree in chancery must be affirmed.

Decree affirmed.


author: Wing, J.

text:
    People v. Richards and Pelton.
    An indictment lies for a conspiracy to cheat an individual of real estate, as well as of personal property.
    A conspiracy to commit a felony, when executed, -is merged in the felony; hut a conspiracy to commit a misdemeanor is not merged in the misdemeanor.
    In an indictment for a conspiracy, the agreement or combination must bo set out, but the means to he used in executing the conspiracy need not he set forth in tho indictment, unless they are a component part of the offence, as where tho combination and the object to he attained are not in themselves unlawful, but the means to he used, to effect the object, are unlawful.

      An indictment for a conspiracy to cheat an individual of his lands and goods, need not state the means by which it was tobe accomplished.
    In conspiracy, the offence consists in the unlawful agreement, and not in the acts that follow it.
    Case reserved from Hillsdale Circuit Court. Indictment for a conspiracy. The defendants were tried and convicted in the circuit court, and the questions reserved were as to the sufficiency of the indictment, which contained three counts. The first count charged that defendants, on the tenth day of November, in the year eighteen hundred and forty three, with force and arms, at Somerset, in the county of Hills-dale, unlawfully and wickedly did conspire, combine, confederate and agree together to cheat and defraud Latón Hoxie of his lands and tenements, and.of his moneys, goods and chattels, he the said Latón Hoxie being a man of weak mind and intellect; and that they, the said William P. Richards and Nathan Pelton, in pursuance of the said conspiracy, combination and agreement so as aforesaid entered into by them then and there, to wit, on the said tenth day of November, at Somerset aforesaid, did falsely pretend that one Thomas Farmer was about to institute a criminal prosecution against him the said Latón Hoxie, upon a charge that he the said Latón Hoxie had attempted to commit a rape upon the body of one Sophronia Farmer; and did then and there represent to and persuade him the said Latón Hoxie, that by the testimony of the said Sophronia Farmer he would be convicted of such of-fence, and imprisoned in the state prison of this state for a long period of time, to wit, for twenty years, and that he must leave the state of Michigan: and did then and there, in pursuance of said conspiracy, combination and agreement, persuade and induce him the said Latón Hoxie to execute and deliver to the said William P. Richards a deed whereby was conveyed to said Richards and his heirs a 'certain piece or parcel of land situate in said county of Hillsdale, containing many acres, to wit, one hundred and twenty acres, of great value, to wit, of the value of two thousand dollars, of the property of him the said La-ton Hoxie, without paying to him the said Latón Hoxie any valuable consideration therefor: and did then and there, in pursuance of said conspiracy, persuade and induce him the said Latón Hoxie to execute and deliver to the said Nathan Pelton a power of attorney, constituting the said Nathan Pelton his attorney to collect and receive all debts due and owing to the said Latón Hoxie, there being then due and owing to the said Latón Hoxie many debts, amounting in the whole to a large sum of money, to wit, the sum of five hundred dollars: and did then and there, in pmrsuance of said conspiracy, combination and agreement, persuade and induce the said Latón Hoxie to piart with and deliver up) possession to the said Nathan Pelton of the said lands and premises, together with divers articles of personal property of great value, to wit, of the value of five hundred dollars, of and belonging to him the said Latón Hoxie, without paying him the said Latón Hoxie any consideration whatever therefor, and with the intent to cheat and defraud him the said Latón Hoxie of his lands, goods, money and chattels, &c.
    The second count stated that defendants afterwards, to wit, on the said tenth day of November, in the year aforesaid, with force and arms, at Somerset aforesaid, unlawfully, fraudulently and deceitfully did conspiire, combine, confederate and agree together to cheat and defraud the said Latón Hoxie of his lauds, tenements, goods and chattels; and that the said William P. Richards and Nathan Pelton, in pmrsuance of said conspiracy, combination and agreement so as aforesaid entered into by them, then and there did falsely protend that one Thomas Farmer would prosecute him the said Latón Hoxie upon a charge that he the said Latón Hoxie had attempted to force, abuse and commit a rapie upion an infant daughter of the said Thomas Farmer, and cause him the said Latón Hoxie to suspect and believe that he the said Thomas Farmer would prosecute him the said Latón Hoxie upon said pretended charge, he the said Latón Hoxie being a man of weak mind and intellect : and did then and there, in pursuance of said conspiracy, combination and agreement, represent to and piersuade him the said Latón Iloxie that, upon the testimony of the said infant daughter of said Thomas Farmer, he would be convicted of said offence; (they the said William P. Richards and Nathan Pelton ivell knowing that the said Thomas Farmer would not prosecute the said Latón Hoxie on said pretended charge) : and did then and there, in pmrsuance of said conspiracy, combination and agreement, persuade and induce him the said Latón Hoxie to part with, convey and deliver to them the said William P. Richards and Nathan Pelton his lands, tenements, goods and chattels, without receiving therefor any valuable consideration, the said lands, tenements, goods and chattels being of great value, to wit, of the value of three thousand dollars; and did then and there, in pursuance of said conspiracy, combination and agreement, obtain from and receive of him the said Latón Hoxie his lands, tenements, goods and chattels without paying him therefor any valuable consideration, with the intent and for the purpose of cheating and defrauding him the said Latón Hoxie of his lands, tenements, goods and chattels, to the great damage, &c.

    The third count was as follows: And the jurors aforesaid, upon their oaths aforesaid, do further present that the said William P. Richards and Nathan Pelton afterwards, to wit, on the same day and year aforesaid, with force and arms, at Somerset aforesaid, unlawfully, fraudulently and deceitfully, did conspire, combine, confederate and agree together to cheat and defraud the said Latón Hoxie of his lands, tenements, goods and chattels, to the great damage of the said Latón Hoxie, to the evil example of all others, and against the peace and dignity of the people of the state of Michigan.

      Hoioell, for the people,

      Backus, for defendants.
   By the court,

Wing, J.

The counsel for the defendants insists that cases of indictable conspiracies at common law are classed under two heads; either there must be a charge of a conspiracy to commit a criminal act, or to commit an act not criminal by criminal means. That in the one case the offence is to be determined by the nature of the object, in the other by the nature of the means.

This question was elaborately argued by senators Spencer and Stebbins, the first giving the judgment of the majority, and the latter of the minority of the court of errors in New York, in the case of The People v. Lambert, 9 Cowen 578. The charge set forth in the indictment in that case was in substance that the defendants conspired, by wrongful and unjust means, to cheat the Sun Fire Insurance Company and other persons of their goods and chattels; and that in the execution of said conspiracy and in pursuance thereof, and by certain indirect and un due means, did cheat and defraud the said company of their goods, chattels and effects — describing them — and thereby impoverished and injured the company, <fcc.

The supreme court sustained the indictment, but their judgment was reversed by the court of errors. There were many points made and decided in that case, some of which are raised in this case. Upon a careful examination of the arguments of the court and the senators, -we are constrained to adopt the views of the supreme court and the minority of the senate, as being sustained by the common law decisions.

In Arch. Crim. Pl. 507, the author says a conspiracy is an agreement between two or more persons: 1. Falsely to charge another with a crime punishable by law — either from a malicious or vindictive motive or feeling towards the party, or for the purpose of extorting money from him. 2. Wrongfully to injure or prejudice a third person or any body of men in any other manner. 3. To commit an offence punishable by law. 4. To do an act with an intent to pervert the course of justice, &c. 3 Chitty’s Crim. L. 1139; 1 Hawk. P. C. b. 1, ch. 72, sec. 2, support the same doctrine. In the second class we have an authority for an indictment for a conspiracy to cheat an individual. See 7 Am. Jurist 445. It is said, however, that an indictment will not lie for a conspiracy to commit any mere civil trespass. Arch. Crim. Pl. 507.

Mr. Chitty, at the page cited above, says, “ there are perhaps few things left so doubtful in the criminal law as the point at which a combination of several persons in a common object becomes illegal; certain it is, that there are many cases in which the act itself would not be cognizable by law if done by a single person, which becomes the subject of indictment when affected by several with a joint design.” He further remarks, it might be inferred from the decisions that, to constitute a conspiracy, it is not necessary.that the act intended should be in itself illegal, or even immoral — that it should affect the public at large, or that it should be accomplished by false pretences; and, though it is agreed that the gist of the offence is the union of persons, it is impossible to conceive a combination, as such, to be illegal. We can rest, therefore, only on the individual cases decided, which depend in general upon particular circumstances, and which are not to be extended.”

The counsel for defendants in this case cites the last sentence -of the last quotation, which is taken from the remarks of Lord Ellenborough in the case of King v. Turner, 13 East. 231, to show that even if an indictment for a conspiracy to commit a fraud upon an individual will lie, yet it cannot lie where the object of the conspiracy is to defraud him of his lands; and the indictment being bad as to land, is bad as to all. In the ease cited, the indictment was for a conspiracy to commit a civil trespass, by going on to another person’s land to kill hares. It was held the indictment would not lie, and Lord Ellenborough’s remark was made in reference to such a case. The judge cannot be supposed to have intended to say that an indictment for a conspiracy to cheat an individual would only lie in cases where the facts were the same as those in which indictments had been sustained. He only objects to the extension of the doctrine to cases where the principles laid down in former cases were not involved.

By reference to the cases, I am unable to perceive that they depend upon the kind of property to obtain which was the' object of the conspiracy. In this, as in many of the cases, the intended fraud or cheat gives character to the transaction, and not the nature of the property. It is true, that fraud in relation to real estate resolves itself into some other distinct offence when consummated; but the same may be said of all kinds of property. We do not pretend to lay down a rule which shall govern in this class of cases — we only say, that from an examination of the cases cited by the elementary writers, we are of the opinion that this case fells within the general principles deducible from those eases.

It is insisted that the first two counts are bad, because they charge an executed conspiracy to cheat by false pretences, which is a higher crime than a conspiracy at common law.

The objection is founded upon another, made in this cause, that an indictment will only lie for a conspiracy to commit a crime, or to do a lawful act by criminal means; but the English authorities and the decisions in Maryland and other states establish, as we think, and as we have said, a contrary doctrine: and if a conspbacy may be indictable, although the act to be done, if done by an individual, or the means made use of would not be indictable, it would follow from the position of the defendant’s counsel, that a conspiracy which is a misdemeanor may be merged in acts which of themselves do not amount to a misdemeanor, or acts which in themselves amount .only to a misdemeanor, an offence of the same grade with the conspbacy; and the consequence might also be that a conspiracy might be indictable if not executed, which, if executed, would not be indictable.

It was said in an early case in Massachusetts, Commonwealth v. Kingsbury, 5 Mass. 106, that where the misdemeanor or felony is actually executed, the conspiracy is merged and. cannot he punished. But the case was one of a conspiracy to commit a distinct felony.' It is no doubt the law, that if the felony is proved the conspiracy must at once merge. To apply such a rule to misdemeanors, is scarcely in accordance with legal analogy, and it is supported by no other authority. That it never obtained in England to such an extent as to involve “the absorption of a conspiracy to commit a misdemeanor in the misdemeanor itself, is evident from the elementary treatises, in which no such doctrine is even broached, and the books of precedents, in which forms constantly occur for conspiracies to commit misdemeanors to which the overt act is attached. See 15 Maine R. 100; 7 Serg. & Raw. 469. This subject was fully discussed in New York, in the case of The People v. Mather. Justice Marcy says, in delivering the opinion of the court: “ It is supposed that a conspiracy to commit a crime is merged in the crime when the conspiracy is executed. This may be so when the crime is of a higher grade than the conspiracy, and the object of the conspiracy is fully acconplished; but a consjnracy is only a misdemeanor, and when its object is only to commit a misdemeanor, it cannot be merged. Where two crimes are of equal grade there can be no legal, technical merger.” 4 Wendell 265.

But we are disposed to go no farther than is necessary to decide this case, and if our views as expressed above are not correct, still the question made by the defendant’s counsel may be disposed of on another ground.

Does it appear by the indictment in this case, as in the case in 5 Mass., that an offence of a higher grade than a conspiracy has been committed ? Would the acts set forth as having been done in pursuance of the conspiracy, if true, make defendants guilty of a cheat, or of obtaining goods or property of any kind by false pretences, or of having obtained the signature to any written instrument? I think not. Neither of the counts charge, as is sujDposed by defendants’ counsel, a conspiracy to cheat by false pretences. The means by which the conspiracy was to be accomplished, formed no part of the conspiracy. They are set forth in the indictment as acts done in pursuance or in furtherance of the conspiracy. The acts charged as done, were, that one Thomas Farmer was about to prosecute — to charge Hoxie with an attempt to commit a rape upon Farmer’s daughter; that by the testimony of the daughter he would bo convicted and sent to the state prison, and he must leave the state. This is the substance of the pretences. In the class of cases stated, the tokens must be false, and the pretences must be of some existing fact, and must be made for the purpose of inducing the prosecutor to part with his property, and it must appear that the object was effected by such means as are stated; but this does not appear in this case. The pretence that a person would do an act which he did not mean to do, as a pretence that he would pay for goods on delivery, is not a false pretence within the act, but merely a promise -for future conduct. Arch. Crim. Pl. 246; 4 City Hall Recorder 156; Roscoe’s Crim. Ev. (2d edit.) 422; 1 Carrington & Payne 661; 3 T. R. 98.

Our statute is taken from the English statutes, and the decisions upon the latter are applicable to cases arising under the former.

If I am correct in this view of the subject, it will obviate the necessity of further discussing the doctrine of merger. The charges are not of existing facts: but of things which a third person has threatened to do — upon which no indictment can be predicated. The forms in 3 Chitty’s Crim. L. 1185, 1186, are examples of indictments for executed conspiracies.

Again, it is objected that the indictment charges that the defendants induced and persuaded Hoxie to make his deed, but does not set forth the means. This objection is also in part predicated upon the erroneous assumption that the object to be accomplished must be a crime, or the moans must be criminal. The objection may also be based upon the general rule, that in all indictments the offence must be so set forth as to enable the court to judge whether an offence requiring the defendant to plead is stated upon the record.

The agreement or combination must be set out. The crime does not consist in the mere combination: but where to this is added an illegal object, then it becomes criminal; and where neither the conspiracy nor the object to be attained is unlawful, but the means by w7hich it is to be executed are criminal, then it is necessary to set out the means intended to be used, as a component part of the offence.

In every case that can be adduced of a conspiracy, the offence depends upon the unlawful agreement, and not on the act which follows it; the latter is but the evidence of the former. 2 Russel 568; 2 Mass. 532 Burr. 993; 3 id. 1321. In 3 Chitty’s Crim. L. 1141, it is said, that to render the offence complete, there is no occasion that any act should be done in pursuance of the unlawful agreement entered into between the parties; still less can it be necessary to show that any party was actually defrauded; for the conspiracy is the essence of the charge, and, if that be proved, the defendant will be convicted.

It is usual to set out the overt acts, such as may have been done by any one or more of the conspirators in order to affect the common purpose of the conspiracy, but this is not essentially necessary. Rex v. Gill, 2 Barn, and Ald. 204; 2 Burr. 993; 3 id. 1321; Starkie’s Crim. Pl. 170-1; 4 Wendell 264.

What we have said disposes of another point made by defendants’ counsel, viz: That the third count of the indictment is bad, as being too general. The forms given in 3 Chitty’s Crim. L. 1185, embrace the general count contained in this indictment. It states the object and the intent. 3 Chitty’s Crim. L. 1143.

Thus we understand the common law to be upon all these points. In the case of the People v. Lambert, it was strongly urged by Senator Spencer, that unless the means by which the fraud was effected were set out in the indictment, the defendant would have no means of knowing for what he was to be tried, until the moment when the public prosecutor opens his testimony on the trial; that it opens the way to general and indefinite charges; that such an indictment ought not to be sustained in a country which regards every citizen as composing a part of its sovereignty. But the reply of Senator Stebbins is unanswerable. Referring to Chitty and Russel, he says, these authorities are quite sufficient to establish the proposition that the offence consists in the act of combining unlawfully; that where the object is unlawful the offence is complete, whether the means of execution were agreed upon or not; that it is not requisite those means should form any part of the agreement, unless the agreement is thereby rendered unlawful. If, then, a confederacy to do an unlawful act, although no means be agreed upon, is indictable, it follows, that in an indictment for such an offence, where the means were agreed upon, it would be unnecessary to state them, because they form no part of the offence; it is complete without them. In the one case the means could not be set out; in the other it would as certainly be unnecessary.

The question whether the common law should be altered by statutory provision, restricting indictments for conspiracy to defraud an individual, to cases where the object is to commit an offence, or where the means aré criminal, as has been done in New York, must be determined elsewhere.

Certified accordingly.


author: Whipple, C. J.

text:
    Lawson et al. v. Higgins et al.
    Chap. 122, R. S., does not give a lien for means and supplies furnished, or for money advanced, in the building, fitting and furnishing of a vessel. The lien in such ease is restricted to work done and materials furnished.
    Case reserved from Wayne Circuit Court.
    Abbott, for plaintiffs.

      Van DyJce and Emmons, for defendants.
   By the court,

Whipple, C. J.

The questions arising in this case wére reserved by the presiding judge of the Wayne circuit, for the opinion of this court. ,

The action is brought upon a bond given pursuant to the thirteenth section of chapter 122, title 26, Revised Statutes of 1846, which chap^ ter provides the mode of proceeding “for the collection of demands against ships, boats and vessels.”

To the declaration (which was filed as the commencement of the suit), the defendants interposed a demurrer. In support of the demurrer, it is contended that the plaintiffs’ demand, as set out in the declaration, was not a lien on the boat.- Whether this ground is well taken, must depend upon the construction of the first subdivision of section 1, which provides, that “ every ship, boat or vessel used in navigating the waters of this state, shall be subject to a lien thereon: 1. For all debts contracted by the master, owner, agent or consignee thereof, on account of supplies furnished for the use of such ship, boat or vessel; on account of work done, or materials furnished by mechanics, tradesmen or others, in or about the building, repairing, fitting, furnishing or equipping such ship, boat or vessel.”

The substance of the averments in the declaration is, that the plaintiffs furnished means and supplies and advanced money on account of said boat: which means, supplies and money “ were used in the building, fitting and furnishing of said boat.”

The first section gives a specific lien on the ship, boat or vessel: 1. For debts contracted by the master on account of supplies furnished for the me of such ship, boat or vessel. 2. On account of work done, or materials furnished “in or about the building, repairing, fwnishing or equipping of such ship, boat or vessel.” It does not contemplate the existence of a lien when the debt is contracted for means and supplies furnished, or for money advanced in the building, fitting or furnishing of a ship, boat or vessel. The lien for supplies furnished, can only attach when the ship, boat or vessel is actually built. If furnished when the ship &o. is in the progress of construction, the law does not create a lien, but leaves the person so furnishing supplies to his common law remedy. A lien, however, does attach in favor of mechanics, tradesmen and others, for work done, or materials furnished “ in or about the building, repairing, furnishing or equipping a ship, boat or vessel.” This lien can only be enforced by those who bestow labor or furnish materials ; not by those who furnish supplies, means or money.

The averment, therefore, in the declaration, that supplies, means and money were furnished, will not supply the place of an averment that materials were furnished. -The word supplies, as used in the statute, has a well defined meaning, and cannot, by any fair construction, be so construed as to include materials furnished, &c. Nor did the statute intend to create a lien in favor of a person who might advance money to be applied to the construction of ships, boats or vessels. The benefit of a lien is confined exclusively to the mechanic who performs, and the material man who provides the materials. If the legislature had intended to create a lien in favor of the capitalists who advanced money to be used in the construction of ships, they would have so declared in clear and intelligible language.

Again, the averment that the plaintiff fwnished 'means, &c., is not equivalent to an averment that materials were furnished, &c. Such an averment, without explaining what those means were, is entirely too general — we can attach to it no definite meaning.

This view of the statute disposes of the case upon its merits, and renders an opinion on the other points raised, and which go to the form of the declaration, unnecessary.

It must be certified to the circuit court of the county of Wayne, as the opinion of this court, that the demurrer filed in this cause ought to be sustained.

Certified accordingly.


text:
    Norvell v. McHenry.
    The E. S. contain no provision as to judgment records, and repeal the former law relative thereto. The files and journal entries of the court are to he deemed a substitute for such record, and as constituting the record itself, as well in cases of judgments rendered before the repeal of the late law, where no record has been made up, as in eases arising since.

    Where the files in a cause have been lost, the calendar entries may be given in evidence to show the steps taken in the cause before judgment.
    Under E. S. 1838, the court had power to make Rule 11, adopted in 1848, requiring defendants, in suits commenced by filing a declaration, to plead thereto in thirty days after service of a copy of the declaration.

      A court will take notice of its own officers, otherwise where the officer is of another court.
    The omission of the clerk to enter defendant’s appearance in a cause, is mere matter of form, which may be amended by an order mmopro timo.

    Error to Wayne Circuit Court. McHenry brought an action of debt against Norvell, in the circuit court, on a judgment recovered by frim against Norvell, in that court, on the 18th November, 1844, for $851 43. Plea, nul tiel record. On the trial McHenry, after showing the files in the former case had been mislaid or were lost, to prove the judgment, offered in evidence the journal entry of the judgment, the calendar entries in the cause,’ and a taxed bill of costs, which were objected to by defendant, but'admitted by the court. Defendant also insisted the circuit court had not jurisdiction of the former cause, for reasons it is unnecessary to state here, as they appear in the opinion of the court. Exceptions were taken to the ruling of the court, and, judgment having been rendered in favor of McHenry, Norvell removed the cause to this court by w4t of error,

      Davidson, for plaintiff, in error.

      Bishop, for defendant, in error.

       Crane v. Hardy, ante 56:

   By the Court,

Miles, J.

The first error assigned is, that the plaintiff below was permitted to give in evidence upon the trial, the journal entry of the circuit court for the county of Wayne, of a judgment obtained in his favor by default, for want of a plea, and upon assessment of his damages by tbe clerk, for the'damages so assessed “ and costs of suit;” and also an original bill of costs taxed in the cause, and the calendar entries of the proceedings therein. To the whole of this evidence the defendant below objected, but the objection was overruled. The proposition asserted by the plaintiff here is, that this being an action of debt uporua record of the same court in which the suit was commenced, and the issue being record or no record, the party must prove his case by a proper and legal original record, made up pursuant to the statute.

This cause was tried on the 16th day of May, 1848. Previous to the adoption of the revision of the laws of 1846, there had for a long time existed a statutory provision, that whenever any civil cause should be finally determined, the clerk should in the next vacation enter the warrants of attorney, writ, process, pleadings, proceedings and judgment, so as to make a complete record thereof, in a book to be provided for tbe purpose.

This provision was first adopted in the general act defining the jurisdiction and powers, and directing the pleadings and practice of the supreme and county courts of the territory of Michigan. Laws adopted by the Governor and Judges, 316, sec. 14; Laws 1827, p. 124, sec. 24; R. S. 1838, p. 410, sec. 10.

In 1840, the Revised Statutes of 1838 were modified by requiring and allowing the clerk to make up a record only in case the same was required to be done by a party. Ses. L. 1840, p. 188.

The Revision of 1846 contains no provision on the subject; so that at the time of the trial there was no sutute requiring or allowing a record to he so made.

What, then, constituted the record p:oper to be given in evidence in this case ?

There is another statutory enactment which had its origin at the same period, from which we date the o.ie just referred to,' and which still continues upon our statute book. This provision was originally in these words: “For preventing errors in entering the judgments, orders and decrees of the supreme, circuit and county courts, the judges and justices of the said courts respectively, before every adjournment, shall cause the minutes of their proceedings during the preceding day to he publicly read by the clerk, and corrected when necessary, and then the §ame shall be signed by the presiding judge of said court: which minutes, so signed, shall be taken in a book.and carefully preserved among the records” This provision is in the general act before referred to, and has been continued in substantially the same terms to the present •day.

This mode of perpetuating judicial proceedings is the only one now existing, and by the repeal of the statute seems to have been the only one intended. Have we not, by our system of jurisprudence, adopted £tds mode instead of the common law mode ? And if so, does it not possess the same intrinsic force as evidence ?

This section of our statute is copied verbatim from that of Ohio, and it may he useful to look at some of the cases decided in that state in which this question has arisen. The first case is Harvey v. Brown, J Ohio 129. There the journal entry of judgment was imperfect, containing only the words “judgment &a.” and was so signed by the judge. The record, made up in puu’suance to a statute' similar in its provisions to our former statute, was perfect, and a transcript was returned upon writ of error, together with a copy of the defective entry. The court refused to allow the plaintiff in error to assign errors upon ihe journal entry, for the reason that the writ of error must he returned •with a transcript of the record required by the statute. The court took that occasion to declare their opiniun that the correct course was to make the entries in the daily minutes of the court with the same technical precision as is required in the complete record made up in vacatura. It may be said of this case, that the distinction taken by the court between the minutes of the court and the record required by the statute, is founded upon that statute.

In Young v. Buckingham, 5 Ohio 488, an objection was taken to the introduction of the minutes of the court of common pleas as evidence, because no complete record had been made. The statute in that state relative to laying out and establishing roads, requires the commissioners to cause the report, survey and plat to be recorded, "and^declares, that from thenceforth the road shall be considered a public highway: and the court were called upon to determine the question, whether the original report with the minutes of the commissioners were admissable evidence to show the establishment of a road, or whether the record made the public highway. The court say, the minutes form no part of the record, but contain the materials from which the record is to be made, and that all being done to authorize the recording officer to record, it should in law be considered as recorded, though the manual labor of recording in the book had not been performed.

This principle was also asserted in 4 Ohio 83. In The State v. Dawson & Tracy, 6 Ohio 110, the action was debt upon a recognizance. The plea was mil tiel record, and one question raised was, whether the recognizance taken in open court was a record. The court say, that the orders and decrees and the minutes of the proceedings of the court of common pleas, in those cases in which no final record is made, or is required to be made, are legal evidence and matter of record, if the court was in the exercise of its legitimate power and authority, and that the recognizance ¿being a proceeding of the court authorized by law, required to be journalized and actually entered in the minutes of a court of record, is a matter of record on which a scire facias would lie.

Although the journal is open to correction during the whole of the term in which the entries are made, yet no amendment, except in mere matter of form, can be made, at a subsequent term. Torbet v. Coffin, 6 Ohio 34 and 80. Clerical errors of the clerk and none others, can be amended in criminal cases. Id. 435. In the case of Harvey v. Brown, and that of The State v. Dawson & Tracey, the question arose directly upon a plea of nwl tiel record; in the others referred to, it came up collaterally. From an examination of these cases, we may safely infer that, but for the statute requiring a record to be made by transcribing the files and the necessary journal entries, those files and entries would be held a substitute for the common law record, and treated as such.

In Pennsylvania, the docket entries, as they are called, are treated as the original record. 14 Serg. & Raw. 156. In Undergraff v. Perry, 4 Penn. State Rep. 292, is a form of a docket entry of a judgment confessed upon a note and warrant of attorney. It is in very brief terms, and contains little of the formality of a common law record.

In New York, the proceedings in a cause are contained in the files and minutes of the court, until after the rule for judgment becomes absolute, when a formal record is made up by the attorney for the successful party; and though made after the cause is finally determined, yet, in imitation of the common law record, the entries appear to have been made from time to time, as the cause was progressing. Until this record is signed by the proper officer and filed, no execution can be had -upon the judgment.

Our practice is different, and may be said to be nearer the ancient practice at common law. After issue is joined, or default is due, when the cause comes under the immediate notice of the court, all proceedings are had in open court, and are entered in a formal manner upon a daily journal of its proceedings; which is read over, corrected if necessary, and signed by the judge who holds the court.

If any issue of fact is tried by a jury, their verdict is entered upon the record, in a form almost identical with that at common law. So of the judgment, which is perfect as soon as signed, and the party recovering may proceed immediately to tax his costs, and after a lapse of twenty four hours from signing the judgment, is entitled to execution. These entries do not, however, contain a perfect history of all the material proceedings in a cause. For the evidence of the steps taken in the cause anterior to the issue or the default, we must look to the files of the court. The process and pleadings are all required to be filed, though not to be transcribed.

In the case in 18 Conn. R. 213, referred to by the plaintiff’s counsel, the writ and declaration on file are treated as a part of the record; the objection was, that the brief minutes of the justice, of what transpired after the return of the process, were not sufficient in form to constitute a record.

I am aware of the objection to this mode of preserving a record, and the danger from loss or abstraction of the files, and could well hope that some other more desirable mode should be provided by the legislature. But with the policy of the modification of the statute, and of its final repeal, either on account of its abuse, in increasing the expenses of a suit, or for any other reason, we have nothing to do.' Our duty is begun and ended when we shall have answered the inquiry proposed to ourselves, What now constitutes a judgment record in this state ?

In view, then, of the system established by our statutes, and the practice of onr courts, we think the only rational and safe conclusion is, that a common law record is not necessary; and in the absence of any statute, and where no record has been made while it existed, the files and journal entries before referred to are to he deemed a substitute for such record, and to constitute the record itself.

Upon the argument, it was suggested a difficulty would exist in exemplifying such a record. I confess I cannot discover any, so long as the record exists. All the necessary papers and entries are in the office of the clerk of the same court in which the suit was prosecuted from its commencement to its conclusion, and can he as easily transcribed for this purpose as they could be for the purpose of making up the record formerly required by the statute.

One object of a transcript by way of record would he to guard against loss by multiplying copies; and its necessity was apparent in this case, where, from loss of the files, a resort to the calendar entries became necessary to show the steps taken in the case before judgment.

It appeared from the evidence thus produced, that the original suit in which the judgment was recovered, was commenced by declaration; and it was insisted upon the trial, that the circuit court never acquired jurisdiction of the person of the defendant in that suit, and that the proceeding was therefore void. This objection is based upon the ground, first, that rule 11 of the circuit court, requiring the defendant to plead within thirty days after service of the declaration, was never in fact adopted, and if adopted, that it was in conflict with the statute; and, secondly, that the affidavit of service of the copy of declaration and notice of rule to plead, was defective in not stating-the time when and the place where the same were served, and that the authority of the officer taking the same did not appear-. It appeared the declaration was filed on the 28th day of June; thát default for want of a plea was afterwards entered; and that judgment was perfected at the November term following.

It may have been the intention of the legislature to put this inode of beginning suits upon the same footing with that of commencing by original writs ;_and if we were now for the first time to give a construe^ tipn to the act, we might so hold. Üfit it may be said, the statute contemplates the action of the court in fixing the time to plead, by rule; and such seems to have been the view taken of it by this court, in adopting rule 11, in 1839, which provided specially that, in suits thus commenced, the defendant should have the same time to plead subsequent to the next succeeding term after filing the declaration, as is provided by the rule next preceding, in cases commenced by original writt;

Ride No. 11, of 1843, is a mere amendment of that of 1839, sub-, stituting thirty days after service, instead of ninety days after the first day of the next succeeding term. The' length of time is- the only chi-' ference; and the com-t having construed the statute as giving them the1 power to make the first rule, must necessarily be authorized to make' the latter. This amended rule was published in the new edition of the' rules of 1843, with the additional rules then adopted. The omission: by the clerk to record the amendment furnishes very slight evidence’ that it was not adopted, when opposed by the long acquiescence of the’ com-t and bar in the correctness of the amendment as published.

The affidavit of service of declaration, &c<, which Was giVeU in evidence by the defendant below, was sworn to, as appears from the jurat, On the 3fstday'of July, 1844, and states the service to have been made “on the 28th day of June last past.”

Here-the jurat is an essential part of the' affidavit, as- without it the’ fact of the time of service would be unintelligible. 4 Wendell 283.-Taken together, they show when the service was made. The affidavit Was taken' in a cause in the circuit court for the county of Wayne, and before the' deputy clerk.- The court will take notice of its own officers; Otherwise where the officer is of another court,- or a commissioner^ 3 Caines’ R. 128.

The statute requires a personal service, but does not state where the service shall be made. It may be made by the sheriff: in such case his return must show a compliance with the statute in making a personal service; and I apprehend, if a return to that effect is made by him, the legal* intendment must be, that he properly discharged his duty by making sendee within his county.

The statute authorizing* service to be made by any disinterested and credible person, must be construed as giving* to such person powers equal at least to those possessed by the sheriff for the same purpose. In the one case the evidence of service is contained in the official return of the officer; in the other, an affidavit is required, and such affidavit of personal service must he deemed sufficient to entitle the court to proceed as in case of the return of a summons. Rev. Stat. 1838, p. 419, sec. 10.

Upon filing this affidavit, the statute requires the clerk to enter the defendant’s appearance. If this is neglected, it is a mere matter of form, which may be amended by an order ?imc pro time.

There being, then, no error found in the record or proceedings of the circuit court, the judgment must he affirmed.

Judgment affirmed.