text:
    Samuel Gregory and another v. Elijah Stanton and another.

      Parties to foreclosures : costs. — A defendant in a suit to foreclose a mortgage on two parcels of land, answered, claiming one of them by paramount title, and disclaiming as to the other; and as to the last a decree was taken. It was held, that the bill should have been dismissed as to this defendant, with costs; as he was under the necessity of appearing and answering to proteot his interest in the parcel claimed by him.

      Heard November 4th.

      Decided November 10th.

      Appeal in Chancery from Genesee Circuit.
    The bill was filed against Elijah Stanton and Stanton* E. Reed, to foreclose a mortgage given by said Stanton on two parcels of land. The bill was taken as confessed by Stanton. Reed, who was made a party as a subsequent incumbrancer, answered, disclaiming as to one parcel, and claiming the other by a title paramount to the mortgage. The Court below made the usual decree, for the sale of' the parcel as to which Reed disclaimed, on the failure by Stanton to pay the amount due and costs by a day named.. Reed appealed, claiming that the Court below should have dismissed the bill as to him, with costs.

      G. V. N. JOothrop, for complainant:
    Reed can complain of nothing which is in the decree;but only of what is not in it; namely, costs. But costs are in the discretion of the Court:— Comp. L. § 5596. And when costs are lodged in such discretion, they do not. furnish any ground for appeal: — 2 Johns. Ch. 317; 3 Paige, 88; 15 Vt. 185; Ibid. 576.

      W. A. Moore, for defendant Reed.
   Manning J.:

Reed, the appellant, was made a party to the foreclosure as subsequent incumbrancer. The mortgage was of two-pieces of land. Reed answered, claiming one of them by a title paramount to the mortgage, and a decree was taheñas to the other in which he disclaimed having any interest. He was under the necessity of appearing and answering to protect his interest in the piece that was dropped. The Court, we think, should have dismissed the bill as to him, with costs.

The decree is affirmed as to Stanton, the mortgagor,, and reversed as to Reed, and the bill as to him dismissed,, with costs in both courts.

The other Justices concurred.


source: Caselaw Access Project

author: Manning J.: Campbell J.

license: Public Domain

text:
    Lawrence Myers and another v. David Carr.

      Locality of contract. — Liquors bad been sent from New York to Michigan, to be sold by local agents. Defendant called on the owners in New York, and made a bargain with them for the liquors at a specified price, he paying the freight, and having the excess of “ outage,” if any, over the original outage, allowed. The owners gave him a letter to their agents in Michigan, stating these facts, which he delivered, and after examining the liquors, took them, and gave his note for the price. It was held, that the sale must he regarded as made in Michigan, and subject to its laws.

      Pleadings: illegal consideration. — In assumpsit, illegality of consideration between the original parties to a promissory note, may be shown under the general issue. If any notice of a defense under the Prohibitory Liquor Law were necessary, a notice that the note 14 was given for the purchase price of certain intoxicating liquors, contrary to the statute in such case made and provided,” is sufficient. Per Manning J., Christianoy J. concurring.

      Pleadings: exemptions from and exceptions in a statute.— In declaring on a statute, where there is an exoeption in the enacting clause, the pleader must negative the exception *, hut where there is no exception in the enacting clause, but an exemption in a proviso to the enacting clause, or in a subsequent section of the act, it is matter of defense» and must he shown by the defendant. Where, therefore, suit is brought for the price of spirituous or intoxicating liquors sold in Michigan, the plaintiffs can not recover, unless they bring themselves within the exemptions of the statute. Per Manning J.; Christianoy J. concurring.

      Heard October 8th and 9th.

      Decided November 10th.

    Case made after judgment, from Washtenaw Circuit.
    The declaration was upon a promissory note, with the common counts. Plea, the general issue, with notice “that the defendant will prove, on the trial of this cause, as a defense to said suit, that the promissory note, a copy of which is appended to said declaration, was given for the purchase price of certain intoxicating liquors, contrary to the statute in such case made and provided, and that the said plaintiffs are not bona fide holders of said promissory note.”
    On the trial, plaintiffs put the note in evidence. It was dated at Ypsilanti, April 9, 1862, and payable to the order of plaintiffs, at a banking office in Ypsilanti, on tbe 14th of November after date, and had been indorsed by the plaintiffs in blank. After showing that the amount due on the note was $213 96, the plaintiffs rested.

      Iii his defense, the defendant testified as follows: “ I gave this note for a bill of liquors, purporting to be spirituous or intoxicating liquors.” Plaintiffs’ counsel objected to this evidence, on the ground that, under his plea and notice, the defendant could not set up the provisions of the Prohibitory Liquor Law of this State; but the evidence was received by the Court. The defendant continued his testimony as follows:
    “These liquors were in the city of Ypsilanti, when I made this note and took the liquors. They had been there from the fall before. Blodget had wanted me to buy the liquors — went to the depot for that purpose. I bought a barrel of rum, 35 gallons, a cask of wiue, and a barrel of brandy.
    “He, Blodget, was anxious to sell them to me; I asked terms; said he would sell on usual terms; did not buy them then. It run along till I was going down to inauguration, when Blodget gave me a letter to the plaintiffs ; I stopped at New York city; saw some one who represented himself to be Myers, Jr. I did not buy them in New York of this Myers, Jr.; I bought them when I came back, of Blodget. I met a person in New York who said he was Myers, Jr.; he took me up stairs to show me some samples. He said they sold all their liquors by sample. He asked clerk when liquor was shipped to Wiard. I tasted the sample liquor. He said the Wiard bill was vintage of 1858, and this was same.
    “When I came back to Ypsilanti, found Blodget had sold gin; tasted them, thought they were not as good as sample. Blodget insisted I should buy them; Joseph Martin looked at them. Doctor Ashley Avas there, and made remarks, which discouraged me. The wine was absolutely worthless — brandy good lor nothing — rum so worthless I used to give it away to any one dry enough to drink it.
    “ The man I saw wrote a letter and gave to me; I brought this letter to Ypsilanti and delivered it to Blodget. After I bought the liquor of Blodget, he asked me for it.”
    Cross-examination: “I think Joslin was present when I brought the letter into the office. The day I went up, I had the letter in my memorandum book — showed the letter to Blodget, and then put it back, and afterwards gave it to him when he asked me for it. I am not positive whether I handed Joslin the letter. I don’t know whether I showed them (Joslin & Blodget) the letter before I purchased the liquor. I think Blodget stated they had received a letter from plaintiffs informing them of my visit. He read it over to me in New York, and I told him I should not purchase the liquors till I had examined them. He said, that as the young man had copied the letter, let it go, and he would be satisfied with any arrangement Mr. Blodget should make. As soon as we got through measuring and tasting the liquors, I loaded them up.”
    This was all the evidence offered by the defendant, and here he rested his defense.
    Thereupon the plaintiffs called as a witness Chauncey Joslin, who testified as follows:
    “This is the letter that Mr. Carr brought to my office; the signature is in the handwriting of Lawrence Myers. He delivered the letter in an unsealed envelope, 'and I read it. I handed the letter to Blodget, and he apparently read it. Blodget told him he had not got the pipe of gin. Carr stated he had bought these liquors of Myers in New York, and had brought this letter to show us about the delivery, and got time that we would not give, and some other terms. He proposed to go and get the liquors. We talked then, that by instructions of the letter we were to deliver the liquors to him, when regaged. He and Blodget left the office together, and were gone from one to two hours, and came back, and Blodget drew note, and Carr signed it, and Blodget asked about the letter, and Carr handed it out.

      “I suppose the bill sold to Wiard contained a pipe of gin. The gin was sold by Blodget to Moorman. ” Outage” means leakage, shrinkage. What he bought was the Wiard bill, less outage, and the pipe of gin.”
    The letter referred to by the witnesses was then read in evidence, as follows :
    “New York, March 15th, 1861.
    Messrs. Joslin & Blodget,
    Ypsilanti:
    Mr. David Carr, of Belleville, called on us in reference to the bill of merchandise forwarded to C. G-. Wiard, and stored by you. We have sold it to him at the invoice cost, say $365, on eight months’ credit from date of sale (yesterday), and 7 per cent, interest; he paying freight and charges to your place, and we paying the storage bill: any excess of outage, over the original outage, we will allow, and solicit you to receive note and forward it to us.
    Yours truly, Lawrence Myers & Co.”
    A. C. Blodget was also called for the plaintiffs, and testified as follows:
    “ Carr brought this letter to our office, and presented it. I told him he could not have the pipe of gin; went up and took off wax and tasted them, and he finally concluded to take them. They were delivered to him, and he put them in wagon and took them away; went to office and gave the note for the amount of New York bill, freights added, less outage and gin.
    “ Carr took them exactly as in that bill, with freights added, except the gin. Carr stated that he doubted whether they were as good as sample tasted in New York. The only doubt he had was whether he would take them, as the gin was gone; said he wanted the gin. Lawrence Myers resides in New York, and Pike in Ohio.”
    Joseph Martin, testified as follows :
    “I was present. Carr inspected the liquors; I think he came into my shop. The rum he doubted whether it was as good as mine. It was a lower priced rum than mine, but was a fair article of its kind.”
    This was all the testimony offered by the plaintiffs, and they then withdrew the note, and relied upon the common counts in their declaration.
    From the foregoing testimony the Court found the following facts:

      First. That the plaintiffs were residents of the States of New York and Ohio, and that the sale of the liquors in question was made in the city of New York.

      Second. That a failure of consideration as to the quality of the goods was not sufficiently proven.

      Third. That the value of the goods and the interest thereon to the 19th day of June, 1863, was two hundred and thirteen dollars and ninety-six cents; for which amount judgment was rendered for plaintiffs.

      Norris & Ninde, for defendant:
    1. The brandy and wine are proven to have been worthless. This partial failure of consideration should have affected the finding.
    2. The note proven and upon which the plaintiff rested his case, with its interest, is the éxaet sum of the verdict. This note was withdrawn. There is, then, no p-oof whatever of number of gallons, or price per gallon, or of the leakage, or outage, or freights, or value of gin sold, or its amount, or of the charges, or of storage. There is no data in the case for the damages, on the count for goods sold and delivered.
    3. Interest should not have been allowed. The pleadings and evidence do not justify it: — 7 Rich. 118.
    4. The contract of sale for these liquors, and the sale, was void. If made in this State, this will be conceded.
    As a matter of fact, the sale was made (consummated) in this State: — 2 Pars. Cont. 437, 441; 10 Me. 400; 2 Ired. 36.

      As a matter of law, it was made subject to the law of this State, because the place of payment and performance is the place of contract, and these liquors were to be paid for at Ypsilanti: —13 Mass. 23; 17 Johns. 511; 19 N. Y. 436 ; 7 B. Monr. 577; 8 B. Monr. 306 ; 6 Pet. 202 ; 13 Pet. 77; 5 McLean, 448; 30 Miss. 65; 3 Strob. 33; 3 Story, 474; 2 Pars. Cont. 95-100-102; Story Confl. L. § 280 ; Story Notes, § 104 et seq.

    If the sale had been made in New York — of liquors in esse, when sold — and the laws of New York had been proven, the liquors delivered in New York, and the money to be paid in that State (all which suppositions are negatived in this case), even then it would be a contract injurious to the interests of the citizens of this State, and within the rule in Story Confl. Laws, § 244, as applied to western prohibitory liquor laws in 6 Clark (Iowa) 410.
    5. No judgment can be legally had on common counts for goods sold and delivered, if it appear in evidence that a negotiable promissory note was given by the purchaser for such goods, and received and indorsed in blank by the seller, which note, in fixing the place of payment, has given a defense to the purchaser and maker, not known to the place of sale, or to the original contract of sale. If for any legal cause you can not recover ou the note, you can not recover on the original cause of action: — 2 Am. Lead. Cas. 184, 186, 188.

      Joslin & Plodget, for defendants in error:
    1. The contract having been made in New York, was a valid contract there, and being good there, is equally valid every where: — 1 Gray, 536; 3 Gray, 482; 2 Mass. 84, 89; 3 Met. 207; 4 Johns. Ch. 487 ; 1 Allen, 484; 2 Allen, 266; 8 Gray, 584.
    2. The plaintiffs insist, that under the plea and notice the defendant could not set up the liquor law: — 11 Cush.
      130; 1 B. & Ald. 94; 1 Johns. 304; 7 T. R. 27; 2 Pick. 139; 17 Vt. 145.
    3. Though the note was withdrawn from the consideration of the Court, as an item in or basis of the plaintiffs’ claims for judgment, it was still before the Court as evidence in the case, for any other purpose, and especially as a memorandum, to show the amount of the account, like any other memorandum, signed by either party.
    4. There is no evidence to show that plaintiffs and defendant had not given bond, under section 1672 of the Compiled Laws, and were authorized to sell. How, then, does it appear that the sale (if made in Michigan) was in violation of the statute?
   Manning J.:

The Circuit Court erred, we think, in finding from the evidence that the liquors were sold to defendant in the city of New York. The letter from plaintiffs to Joslin & Blodgett, of March 15, 1861, relied on to prove a sale, proves a contract for a sale and nothing more.

To constitute a sale of personal property there must be an actual or symbolical delivery of the property to the purchaser, or what is agreed upon by the parties, or understood in the course of trade, to be a delivery. The right of property must pass out of the vendor into the vendee, which is not the case where something remains to be done by the vendor before the delivery can take place. The letter to Joslin & Blodget was not an order on them for the delivery of the property to defendant. Had it been so intended by the plaintiffs, it would have been delivered to defendant, and not inclosed in an envelope and directed to them as plaintiffs’ agents. The object of the letter was to inform them of the agreement plaintiffs had made with defendant, and to request them to carry it out by ascertaining the amount that would be due them, receive defendant’s note therefor, and forward it to them. Defendant was to be allowed for any excess of outage over the original outage. That is, as explained by the evidence, u leakage, shrinkage.” Until this was - ascertained, the amount of the note to be given could .not be known, nor the delivery take place. Suppose, while defendant was on his way from New York, the liquors had been destroyed by fire, would the loss have fallen on him? Suppose Messrs. Joslin & Blodget had refused to deliver them; could he have maintained replevin or trover for them? We think not. The contract to sell was made in the city of New York, but the sale was consummated in Michigan.

The objection to the evidence to prove that the note was given for intoxicating liquors was not well taken. In assumpsit illegality of consideration between the original parties to a promissory note, may be given in evidence under the general issue. If notice of the defense was necessary, we think the notice given was sufficient, according to the decision of this Court in Rosenbury v. Angell, 6 Mich. 508, in which it was held that a notice that apprised the plaintiff with sufficient certainty of the defense to prevent his being taken by surprise on the trial, was sufficient.

A still. further objection is, that the evidence does not show that plaintiffs were not within the exceptions of the statute, which must be proved, it is said, to show the illegality of the consideration of the note. The language of the statute is, “That no person shall be allowed to manufacture or sell, at any time, by himself, his clerks, servant Lor agent, directly or indirectly, any spirituous or intoxicating liquors, or any mixed liquors,' a part of which is spirituous or intoxicating, except __ cider, beer, and wihe of domestic manufacture, and except also as hereinafter specified.” Comp. L. §1661. By a subsequent section, sellers of drugs and medicines whose sole or principal business is the selling of drugs and medicines, on giving a bond to tbe People of the State, &c., are allowed to sell spirituous or intoxicating liquors to be used as a medicine, or as a chemical agent in scientific, mechanical or manufacturing purposes, and wine for sacramental purposes: §1672. And the statute is not to apply to liquors imported under the laws of the United States and sold in the original packages in which they were imported: § 1678. The position of the plaintiffs is, that these several provisions of the statute must be negatived by proof to establish the defense.

In declaring on a statute, where there is an exception in the enacting' clause, the pleader must negative the exception; but where there is no exception in the enacting clause, but an exemption in a proviso to the enacting clause, or in a subsequent section of the act, it is matter of defense, and must be shown by the defendant. Attorney General v. Oakland County Bank, Walk. Ch. 90; Teel v. Fonda, 4 Johns. 304; Hart v. Cleis, 8 Johns. 41 ; 3 Johns. 438; 1 Johns. 513. An exception excludes in express terms the thing excepted from the statute — leaving it as before the statute. A proviso only exempts a thing within the statute from its operation in certain circumstances, or on certain conditions. The word except is not necessary to Greate an exception, nor the word provided an exemption. Other words clearly indicating the one or other intention are sufficient. Cider and beer are excepted from the statute, wines are not. They are included in the words spirituous or intoxicating liquors. Wines of domestic manufacture, and imported liquors in the original packages in which they were imported, are exempted from its operation. All sellers of drugs and medicines are within the statute, while those only are within the exemption who are mentioned in § 1672. We must understand the statute as if it read, except cider and beer; provided wines of domestic manufacture, and imported and other liquors may be sold as hereinafter provided. It was for plaintiffs to bring themselves within the exemptions of the statute, and not having done so, the judgment of the Court below must be reversed, and judgment be entered for defendant, with his costs in both Courts.

Christiancy J. concurred.

Campbell J.

I am not entirely satisfied that, under our liquor law, the burden of proof is in general on the seller, to make his sale out to have been legal. I therefore abstain from giving an opinion upon that point, as it is immaterial in the view I take of this case.

I think that, on the facts, the sale must be regarded as subject to the laws of Michigan. The proof shows the liquors had been sent here previously, to be sold by local agents, and of course to be sold in this State. They were to be delivered here, and whatever contract was made between Carr and plaintiffs was knowingly made with the design that he should receive the property where it then was. I do not, therefore, consider it important whether the title absolutely passed in New York by the contract or not (although I think it did not); for it was made with a direct view to take practical effect in Michigan, and the liquor as before mentioned had been introduced into the State for the purpose of such a transfer.

The evidence showed that plaintiffs resided out of Michigan, and therefore negatived the idea that they could be qualified to sell here, as druggists or otherwise, under our statutes. It also showed the liquors to be in part spirits, and even if the sale had been in part of domestic wines, the sale of spirits would vitiate the contract unless that too was lawful. The only lawful sale of spirits, except by qualified persons, must be of imported liquors in the original package. The burdenc of proving their imported character is laid expressly on the seller, and no. proof was introduced on the subject.

I concur, therefore, in giving judgment for defendant.

Martin Ch. J. concurred with Justice Campbell.


author: Campbell J. : Manning J.:

text:
    George W. Underwood v. Henry Waldron and others.

      Subscription for public purposes: Consideration. — Where a subscription is made by which the signers promise to pay the several sums subscribed, for the .purpose of erecting a building for educational purposes, and something has been done or some liability or duty assumed, in reliance upon the subscription, in order to carry out the object, the promises are binding, and may be enforced, although no pecuniary advantage is to result to the promissors.
    But where, by its charter, a college was located at Spring Arbor, and a subscription was entered into for the purpose of erecting a college building therefor at Hillsdale, and it did not appear, by the subscription or otherwise, that it was designed as an inducement to the college to endeavor to obtain legislative authority to remove to Hillsdale, and it could not be lawfully removed without such authority, it was held, that the subscription, being for a purpose not authorized by law, was invalid.

      Pleadings: Declaration. — The declaration against one of the subscribers, after setting forth the subscription, averred that the college at Spring Arbor deoided not to use the building when completed, and the subscribers afterwards renewed their subscription, and indebtedness was incurred and the building was completed in reliance thereon. It was shown in evidence, that the renewal of the subscriptions and the erection of the building were for the benefit of a new college to be established at Hillsdale» This fact not being averred in the declaration, which only showed a subscription for the benefit of a college not located at Hillsdale, it was held, that no recovery could be had thereon.

      Heard July 10th and 11th.

      Decided December 5th,

    Error to Branch Circuit.
    Henry Waldron, Chauncey W. Ferris and Allen Hammond, brought suit against Underwood in assumpsit, the declaration containing two counts, in substance as follows:

      First Count: For that, on January 26, 1853, the defendant, the plaintiffs, and certain other persons, were desirous of erecting a college building in or near the village of Hillsdale, for the benefit of themselves severally, and the defendant, in consideration thereof, and for the purpose of effecting said object, and in consideration that certain persons named did subscribe their names to the following-agreement: “We, the subscribers, severally promise to pay the sums set opposite our respective names, to the order of Henry Waldron, Chauncey W. Ferris and Allen Hammond, for the purpose of purchasing land, or erecting a college building in or near the village of Hillsdale, for the use of the Michigan Central College; dated Fayette, January 26, 1853;” and did each set opposite their names, thereto subscribed, certain sums of money specified, and in consideration that certain other persons would subscribe their names to the said agreement, and would set opposite their names certain sums of money, to be paid as therein specified, the defendant did subscribe his name thereto, and promise to pay the plaintiffs §1000 as follows: §250 in four months; §250 in eight months; §250 in twelve months, and §250 in sixteen months; that other subscribers to said instrument, who are named, did subscribe thereto in consideration, among other things, of the defendant’s subscription; yet that although the persons so subscribing have paid the amounts by them subscribed; and the plaintiffs have paid out and expended all the moneys paid them, in erecting said college building; and said building has been erected, and a large amount of indebtedness has been incurred on the faith of said subscription in erecting said college building, and plaintiffs have at all times been ready and desirous to use and expend the amount so subscribed by defendant for the purpose of paying such indebtedness? yet the said defendant refuses to pay, &c.

      Second Count: Sets forth the subscription in the same manner; avers that afterwards, on July 1, 1853, defendant had paid §200 of the amount subscribed by him, and the other subscribers had also paid a large amount, in all $5000, which had been expended in erecting a college building; that the Michigan Central College decided not to use the building when completed, of which the defendant had notice; that afterwards, on January 2, 1854, in consideration that the several other subscribers did then and there renew their said promises and undertakings, “he, the said defendant, undertook, and then and there faithfully promised the said plaintiffs to perform, and fulfill the said agreement in writing, in' all things on his part and behalf to be fulfilled and performed, and to pay the balance of the aforesaid sums of money, so subscribed by him as aforesaid, at the times aforesaid, tó the said plaintiffs.” And although other subscribers named have paid "the amounts subscribed by them, and plaintiffs have expended all the money so paid them in erecting said college building, and the college building has been erected; and although a large amount of indebtedness has been incurred in erecting the same, and plaintiffs have at all times been ready to use and expend the amount so subscribed by defendant for the purposes of erecting said building and ■of paying such indebtedness; yet the defendant refuses to pay, &o.

    Plea, the general issue.
    The cause was tried by the Circuit Judge without a jury, and the following is his finding of facts :
    “ That on the 26th day of January, 1853, the defendant and Chauncey W. Perris, William Waldron, Hewitt & McCollum, Henry Waldron, and certain other persons at the village of Hillsdale, were desirous of erecting a college building, in or near the village of Hillsdale, for the benefit of themselves severally.
    “ That the said defendant, for the purpose of effecting said object, and in consideration that the said Chauncey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, would subscribe their* names to the agreement in writing, set out in the plaintiffs’ declaration, to wit: ‘We, the subscribers, severally promise to pay the sums set opposite our respective names to the order of Henry Waldron, Chauncey W. Ferris, and, Allen Hammond, for the purpose of purchasing land, or-erecting a college building, in or near the village of Hills-dale, for the use of the Michigan Central College. Dated-Fay ette, January 26th, 1853.’
    “And would set opposite their respective names, thereto-subscribed, $1,000, payable as follows, viz.: $250 payable in four months, $250 in eight months, $250 in twelve months, and $250 in sixteen months, from the date thereof. And, in consideration that certain other persons would subscribe their names to the said agreement in writing, and would set opposite their respective names, thereto-subscribed, certain sums of money, to be- paid at certain times therein mentioned, the said defendant, on or about the 26th day of January, 1853, did subscribe his name to-the said agreement, in writing, and did set opposite his name, thereto subscribed, $1,000, payable as follows, viz.: $250 in four months, $250 in eight months, $250 in twelve months, and $250 in sixteen months, from the date thereof.
    . “That, at the same time, the said Chauncey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, each subscribed their names to the said agreement in writing, and each set opposite their respective names, thereto subscribed, $1,000, payable at the same time, and in the same amounts, with the amount so as aforesaid subscribed by the said defendant.
    “ That the said defendant and the said Chauncey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, at the time they subscribed said agreement in writing, as aforesaid, did actually agree with 'each other that they would each subscribe $1,000 to said agreement in writing, as aforesaid, and would pay the same, in consideration that each of the others would subscribe the same amount to said agreement, payable at the same time, and would pay the same. And that the subscription of each, as aforesaid, was the inducement for the subscription of all the others.

      “That at the same time the said defendant subscribed said agreement in writing, as aforesaid, and within a short time thereafter, certain other persons subscribed their names to the said agreement in writing, and to duplicates thereof, and set opposite their names, thereto subscribed, certain sums of money, amounting, in the aggregate, to the sum of about $12,000. That many of the other persons who subscribed said agreement did so in the presence of said ■defendant, and at his request, and in consideration that he had signed it as aforesaid.
    “That the purpose for which said subscriptions were originally made, was for the purchasing land, or erecting a college building, in or near the village of Hillsdale, for the use of the ‘Michigan Central College.’ That the Michigan Central College referred to, was the institution of that name incorporated by act of the Legislature of the State of Michigan, approved March 19, 1845, and then -located at Spring Arbor, in Jackson county, Michigan.
    “That at the time of making said subscription, it was ■contemplated by the signers thereto, that said Michigan Central College should be removed to said Hillsdale, and use the premises proposed to be bought or built, and the proof of the last fact was objected to by, the plaintiffs: that the subscribers knew, at the time of making said subscription, that the right of the Michigan Central College to remove to Hillsdale had been questioned, and was opposed by some of the trustees of said college.
    “That on the first day of July, 1853, the said defendant had paid about $200 on his aforesaid subscription, and the said Chauncey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, Henry Waldron, and certain other subscribers, had paid about $5,000 on their said subscriptions.
    “That said amounts so paid had, at that time, been paid out and expended towards erecting a college building near the said village of Hillsdale.

      “That about that time the Michigan Central College-decided not to use said college building when the same should be completed, of which fact the said defendant had notice.
    “That on or before January 1st, 1854, the idea of removing said Michigan Central College to Hillsdale, or of' using said proposed new building by said Central College, was abandoned wholly and finally.
    “That on the 2'7th day of September, 1853, Esbon Blackmar, who owned the land upon which said college building was being erected, conveyed said land by a sufficient deed to said defendant and certain other persons, with their knowledge and consent, upon the following trusts (among others): 1st, For the erection thereon of' college dr academical buildings, and for no other use or purpose whatsoever. 2d, To convey the said premises for the uses and purposes aforesaid, and not otherwise, and upon the express condition that the same should be-applied to no other use or purpose whatever, to such board of trustees as may be appointed by the annual conference of the Michigan Free Will Baptist yearly meeting : provided, said board of trustees shall, within ten years, from the date hereof (September 21, 1853,) be duly organized, with requisite forms to take and hold said premises,, by and under the laws of the State of Michigan.
    “That said defendant acted as one of the building committee for the erection of said college building, until about the 15th of October, 1853.
    “ That at and after the aforesaid deed of trust was. made to the said defendant and others, by said Esbon Blackmar, the said defendant consented and agreed with the plaintiffs, and with the said Chauncey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum and Henry Waldron, that said college building should be erected, and should be used and occupied according to-the terms and conditions of the aforesaid trust deed.

      “That on or about the 2d day of January, 1854, a public meeting of the subscribers to the aforesaid agreement in writing-, was held at the office of Mead & Pratt, in said village of Hillsdale, for the purpose of deciding whether the said subscribers should pay up their said subscriptions and proceed with the erection of said college building; and the said defendant, in consideration that the said Chauneey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, and certain other persons who had subscribed their names to said agreement in writing, did then and there verbally renew their aforesaid subscriptions, and did then and there verbally promise to pay them to the said plaintiffs, the said defendant did then and there promise the said plaintiffs, and the said Chauneey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, and the other subscribers then present, that he would pay the balance of the aforesaid subscription. That on or about the first day of January, 1856, the said defendant offered to pay the balance of the said subscription in flour, made from grown wheat. That on the l7lh day of May, 1855, the board of trustees, appointed by the annual conference of the Michigan Free Will Baptist yearly meeting, were duly organized under and by virtue of the general college laws of this State, approved February 9, 1855, with the requisite powers to take and hold real estate, under the name and style of Hillsdale College, located at Hillsdale, Michigan. That on the 15th day of December, 1855, the said defendant, and the other grantees in the aforesaid deed of trust from the said Esbon Black-mar, conveyed the said premises described in said deed, and upon which said college building was erected, by a sufficient deed to the aforesaid trustees of Hillsdale College, and to their successors in office. That on the first day of January, 1856, the said Chauneey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, had paid np the amount of their aforesaid subscriptions in full. That between $12,000 and $13,000 had been paid on the said subscriptions before the commencement of this suit.
    “That before the commencement of this suit the plaintiffs had paid out and expended all -the moneys so as aforesaid paid them on said subscription, in erecting said college buildings.
    “That on the first day of January, 1856, said college buildings were erected and completed in said village of Hillsdale, and ujoon the premises described in the aforesaid trust deed from Esbon Blackmar to the defendant and others, and cost between $45,000 and $50,000. That at the time of the commencement of this suit, the indebtedness contracted on the faith of the aforesaid subscriptions, and other subscriptions, in erecting said college buildings, amounted to about $2,000.
    “That the plaintiffs, through their treasurer, frequently called upon the defendant, before the commencement of this suit, to pay the balance of his aforesaid subscription.
    “That tbe persons who acted as the faculty of the Michigan Central College, at the date of the aforesaid subscriptions, viz., January 26th, 1853, did, on the Yth day of November, 1855, commence an academical and collegiate school in said college building, and continued and carried on the same up to the time of the commencement of this suit; that Hillsdale College is under the control of the same denomination that the said Michigan Central College was, at the date of said subscriptions, viz.: The Free Will Baptist denomination; and that said denomination have endowed said Hillsdale College to the amount of $90,000.
    “ And I further find that the total amount of payments made by the defendant, in addition to certain amounts which were credited to him, many of which were made at his request, amounts to the sum of $493,66, leaving unpaid on his subscription the sum of $504,34. To this add the interest up to the 23d of May, 1861, which is $285,44, and the amount due from him on his subscription is $791,78, for which amount the plaintiffs are entitled to judgment, with costs of suit to be taxed.
    “And under the pleadings, and upon such finding, I hold as follows:
    1st. That the said promise of defendant was one of mutual promise, and made in consideration of like mutual promises of said other signers of said subscription paper.
    2d. That said mutual promises were a good and legal consideration for each other, and that therefore the promise of the defendant was a valid promise.
    3d. That said promise of said defendant is sufficiently set forth in the first count, as a mutual promise upon the consideration of the mutual promises of the other subscribers, to enable the plaintiffs to recover thereon, on the first count of the declaration.
    4th. That the purpose for which the original subscription was made, viz.: The purchasing land or erecting a college building, in or near the village of Hillsdale, for the use of the Michigan Central College, was not unlawful.
    5th. That after the project of removing said Michigan Central College, or using said new college building in any way, by the Michigan Central College, had been abandoned, the new verbal agreement between defendant and said other subscribers, was a new promise, based upon new facts, and the same was legal.
    6th. The same constituted new mutual promises between said subscribers, of which the promise of each constituted a valid consideration for the promise of the other.
    7th. That such new promise of the said defendant is sufficiently set out in the second count of the declaration to entitle the plaintiffs to recover.”
    To these several rulings of the Circuit Judge, exceptions were taken by the defendant.

      G. V. N. Lothrop and T. M. Cooley, for plaintiff in error,
    argued, that the subscription evidently contemplated a removal of the college from Spring Arbor, where it was located by' its charter (Laws 1845, p. 36) to Hills-dale; and was therefore unlawful: — Attorney General v. Oakland Co. Bank, Wal. Ch. 90; People v. Oakland Co. Bank, 1 Doug. Mich. 282 ; People v. Geneva College, 5 Wend. 211. Also, that if the subscription was ever binding, it ceased to be so by the refusal of the Michigan Central College to accept and use the building, and all the evidence given of the organization of Hillsdale College, and of the subsequent proceedings, and that the renewed promise was made for its benefit, was irrelevant, because foreign to the case made by the declaration. A recovery has been had here upon a state of facts not declared upon. The action cannot be sustained on the ground of subsequent expenses or debts incurred on the faith of the subscription, because, first, it is not alleged that those were incurred by the plaintiffs, and any promise which the law would imply must be in favor of the party incurring them (4 N. H. 433 ; 2 Pick. 580; 5 Pick. 228 ; 12 Mass. 190; 2 Gray, 423; 5 Ohio, 56); second, the expenses and debts are not alleged as the consideration for defendant’s promise — the sole consideration stated being the mutual promises of the subscribers — nor, third, are they alleged to have been incurred at the request of the defendant.
    The fault in the declaration in setting forth a different consideration from the one now relied upon, is not cured by the judgment. 1. A defective statement of consideration is only aided by verdict when the objection is for the first time taken after verdict. If taken before, the plaintiff must amend. Otherwise, where the objection was erroneously overruled by the Court, this erroneous ruling would be allowed to make good a bad declaration. Here, the objection was taken on the trial. 2d, The rule is only available where a consideration is alleged, but is defectively set out: — 1 Chit. Pl. 300; 2 Bing. 464. If the consideration actually set out is not sufficient, judgment must be arrested: — 4 B. & C. 345. 3d. The only consideration found by the Judge, is the mutual promises. For this Court to hold that the subsequent facts constituted a consideration would be,, not to aid the declaration, but to disregard it; and not only so, but also to set aside the finding, and make a new finding of facts inconsistent, as regards the consideration, with that of the Circuit Judge, and enter judgment* upon it. The finding is to be treated as a special verdict. Suppose a jury had found specially, that the consideration was mutual promises; could the Court, holding these promises invalid, enter judgment on the verdict on the ground that something else, which the jury had not found to be the consideration, in fact was so?

      G. I. Walker, for defendants in error :
    Is there a sufficient or a legal consideration ? This question could, of course, have been raised on demurrer, but it is now sought to raise it upon error. This, of course, may be done, if no consideration appears in the declaration, or one that is clearly insufficient or illegal. But if, by a reasonable construction of the whole declaration, it sufficiently appears that there was a consideration capable of supporting the promise, then no advantage can be taken of the defective, informal, or uncertain manner in Avhieh the consideration may be stated. These defects are aided by verdict or judgment: — 1 Chit. Pl. 300; 1 Saund. 228, (a); 4 East, 465; 2 B.& P. 265; 1 New Rep. 171; 2 Bing. 464.
    If, therefore, the declaration shows, with reasonable certainty, that a sufficient consideration actually existed? although ever so imperfectly stated, these assignments of error are not well taken.

      Before examining the declaration in the case, let us inquire what is a sufficient consideration to sustain an action upon a voluntary subscription for educational, charitable, religious, or other similar purpose.
    There is a class of cases that recognize the doctrine that the consideration upon which the promise of each subscriber is founded, is the promise of the others to contribute to the same object, or, as is expressed by Parker, C. J., “it is a sufficient consideration that others were led to subscribe by the very subscription of the defend, ant:” — 5 Pick. 506; 9 Cush. 537; 6 N. H. 194; 24 Vt. 189; 37 Penn. 213; 11 Iowa, 508 ; 2 Ind. 555; 2 Denio, 403 ; Pars. on Con. 377 and note; 2 Kent, 465 and note

    There is another class of cases that recognize the doctrine that the obligation of the promisee, to apply the money subscribed for the purposes for which it was sub" scribed — an obligation which can be enforced, at least in equity — is a good consideration for the promise of the subscriber: — 8 B. Monr. 68; 24 Vt. 189; 6 Pick. 427.
    The third class of cases recognize the doctrine that ■the subscription is in the nature of a proposition, which becomes mutual and binding when accepted by the promisee, and he, in good faith, commences the work contemplated by the subscription: — 2 Vt. 48: 20 Johns. 89; 36 Barb. 577; 6 Pick. 427; 9 Barb. 211.
    It is well established by a series of cases, that, where advances have been made, or expenses and liabilities incurred by others, in consequence of such subscriptions, before any notice of withdrawal, they are obligatory upon the subscribers, provided the advances were authorized by a fair and reasonable dependence upon the subscription, or were encouraged, or tacitly or expressly assented to by the subscribers: — 6 Md. 115; 12 Mass. 190; 14 Mass. 171; 5 Pick. 506 ; 5 Pick. 228; 6 Met. 310; 9 Barb. 209 ; 15 Barb. 249 ; 2 Kern. 18; 3 Scam. 198; 33 Penn. 114; 4 Mich. 578.

      In some of these cases the subscription is not considered a complete contract, but rather a conditional promise in consideration that the promisee, or other party, does the thing contemplated thereby, that, then, they will pay according to the terms of the subscription. The consider, ation or other terms of the contract, are to be proved by parol, or inferred from other circumstances: — 9 Barb. 210; 5 Barb. 455 ; 25 Wend. 417.

    And a proposition accepted and acted upon, although not mutual when made, becomes so by the acceptance and subsequent action: — 14 Mass. 172; 5 Pick. 384 ; 6 Pick. 432 ; 12 Pick. 129 ; 7 N. Y. 349 ; 36 Barb. 581.
    It is evident that this declaration was drawn by the pleader, upon the theory that the mutual promises of each subscriber were a sufficient consideration for the promise of the others. And this, we submit, is a sufficient consideration under the authorities cited. Courts will not inquire into the adequacy of the consideration for a contract, in the absence of fraud. The necessity of a consideration is rather a technical requisition, and the slightest act is frequently held a sufficient compliance with this technical requirement: — 1 Bing. N. C. 490 ; 8 A. & E. 743; 18 Johns. 337; 1 Met. 84. •
    Why may not the signing of an agreement, by other parties, be, of itself a sufficient consideration for a promise ?
    Then, too, may it not always be presumed that each promisor has a direct pecuniary interest in the accomplishment of the promise for which the subscription is made, and that he is interested in getting other parties to aid in its completion ?
    But suppose it should be held that such mutual subscriptions did not form a sufficient consideration for the individual promise of each subscriber; then the result is, that the consideration, specially and formally described in the declaration, is, in the eye of the law, no consideration; but it by no means follows that the declaration does not disclose the actual existence of a good consideration. If facts are set forth which show that a legal consideration actually existed, although such facts are not set forth, technically, as a •consideration, yet, as they show that there is an actual cause of action existing, on error the declaration will he held sufficient.
    The facts set forth here are:
    1st. That the promise was made by the defendant.
    2d. That the plaintiffs accepted the proposition or promise thus made to them, and proceeded with the execution of the project contemplated, and actually completed the same.
    3d. That, in so doing, they expended all the money paid into their hands on said subscription, and incurred an indebtedness, which still exists.
    4th. The second count discloses positive acts of recognition and encouragement on the part of the defendant, by part payment, and by renewal of his promise to pay.
    Now, these facts, which are clearly disclosed in the declaration, constitute, under all the. authorities, a sufficient consideration for the defendant’s promise.
    The second count differs from the first mainly in the averment of the renewal of the defendant’s promise, after the Michigan Central College decided not to use the buildings that were to be erected.
    It is insisted that the declaration, if it discloses any consideration, discloses an illegal one; inasmuch as the buildings to be erected were for the use of the Michigan Central College, located at SjDring Arbor, and said College had no legal right to accept, or use said buildings, or to change its location.
    We deny that said College was by law located at Spring Arbor, or that it had not a right to use these buildings, or remove its locality to Hillsdale.
    The name of the corporation is “ the Michigan Central College, at Spring Arbor,” but it is not located at Spring Arbor, or any other point; and it may be removed, at the pleasure of the trustees, to any part of the State: — 19 E. L. & Eq. 404.
    But suppose it be true that the Michigan Central College had no right to remove to Hillsdale, or to use the buildings there to be erected, it does not follow that an agreement to erect the buildings was illegal. It was neither immoral, against public policy, or in violation of law.
    A contract made by the corporation to erect the buildings, or to use them, might be invalid, but a contract between A and B to erect a building for C, that C could never use, would not make the contract between A and B void.
    We submit, therefore, that the declaration, even if it should be found untechnical and defective, and describing as a consideration that which is not, is still good on error, inasmuch as a good and legal consideration is shown by the declaration itself to exist.
   Campbell J. :

Judgment was rendered against Underwood, in the Circuit Court, upon a subscription made to aid in erecting-college buildings. He, with others, who were induced to subscribe by mutual reliance, agreed to pay certain sums to defendants in error, “for the purpose of purchasing land or erecting a college building, in or near the village of Hillsdale, for the use of the Michigan Central Colleger Plaintiff in error acted as one of a building committee in erecting a building, portions of the subscriptions, including part of his own, having been paid- in, and used for that purj>ose. In the summer of 1853, it was known the college refused to accept the building, or remove to Hills-dale. In September, 1853, the owner of the land conveyed it to plaintiff and others, in trust for the erection thereon of buildings for college purposes, and ' for the transfer thereof to trustees who might, within ten years, be incorporated upon the appointment of the Free Will Baptist Conference of Michigan. The parties agreed that the enterprise should go on for these purposes, and, in January, 1854, plaintiff and the others met and renewed their subscriptions, and agreed to pay the unpaid balance. The building was completed, and conveyed by plaintiff in error and others to the corporation designated by the conference, and has been used since for its purposes. Most of the subscriptions have been paid. Plaintiff, in January, 1856, offered to pay in flour made from grown wheat,-but not otherwise.

The conclusions at which we have arrived, under the peculiar state of the record in this case, render it necessary to make some examination of the principles which we think should govern in similar cases.

It is obvious to any one who has given any attention to religious and educational movements, in this country, that few institutions can be established except by combined effort in the form of subscriptions. It is equally clear that the success of such efforts is generally regarded as an advantage to the subscribers, as well as to the public. And whenever a church or school, or other like work, has been completed in reliance upon the promise of individuals to pay for it, if undertaken, courts have generally held the subscribers bound to fulfill their promises which have been thus acted on. But there is some confusion among the cases concerning the grounds, as well as the nature and extent, of the liability of subscribers to such purposes.

The difficulties met with in the cases refer, in general, to the parties to the agreement, or to what is loosely called the consideration, including in that term the assurance that the money promised will be beneficially applied. Objections for the want of parties are frequently classed with objections to the consideration; and parties have been discharged upon grounds by no means clear or intelligible. Any extended criticism of the cases would be more curious than profitable, as the whole subject must properly be determined by the rules governing ordinary agreements.

There must therefore be not only a party promising^ but a party to enforce the promise. And, although the amount of consideration is unimportant, the promise of a subscriber can only be enforced where something is done or undertaken in reliance on that promise, in a responsible shape. And, where a subscription is to accomplish a particular object, and no direct pecuniary advantage is to result to the promisor, the consideration must usually 'be something done or undertaken in order to carry out that object. These principles seem to be generally recognized.

It is intimated by Prof. Parsons, 1 Pars. on Cont. 378, that the simple promise of one subscriber to pay money can not be a sufficient consideration for a similar promise by another. But this principle, it is presumed, was intended to apply only where there is no person designated to receive the funds, who assumes or is bound to expend them for the purpose designed. The cases which have denied the force of subscriptions as mutual considerations, are usually cases where no payee is named or designated, or where the one designated is either incapable of acting, or does not assume and is not bound to act: — Boutell v. Cowdin, 9 Mass. 254; Limerick Academy v. Davis, 11 Mass. 113; Farmington Academy v. Allen, 14 Mass. 172. And where this difficulty has not existed, it has been recognized repeatedly that it is a sufficient consideration that others were led to subscribe by the very subscription of the defendant: — Trustees v. Stetson, 5 Pick. 506; Watkins v. Eames, 9 Cush. 537 ; George v. Harris, 4 N. H. 533; Congregational Society v. Perry, 6 N. H. 164; Troy Academy v. Nelson, 24 Vt. 189; Amherst Academy v. Cowls, 6 Pick. 427. Where work is done or expense incurred under a promise, the liability is not disputed by any authority. Until the persons designated to receive the money assume their duties — or, where none are designated, until some person incurs expense or liability in fair reliance on the subscriptions — the offer of the subscribers may properly be regarded as liable to withdrawal. In such case the question is not properly whether there is any consideration for the agreement, but whether there is any agreement at all. Much of the confusion in the cases arises from not ■distinguishing between the contract and the consideration, ■and in not drawing any line between different forms of ■subscription to determine who are the contracting parties. There are decisions which hold, that subscriptions in favor ■of persons or corporations legally bound to apply such funds as are subscribed, in accordance with the wishes of the donors, need no acceptance or further action to make them binding on the subscribers: —Troy Academy v. Nelson, 24 Vt. 189; Trustees v. Stetson, 5 Pick. 506; Amherst Academy v. Cowls, 6 Pick. 427. In other cases there must, as it. would seem, be an acceptance of the trust or duty, by some .one competent in law to undertake it. And in all cases the object must be one which is not rendered evidently impossible by law or otherwise.

But where there is no legal or natural obstacle to the performance of the thing designed, and lawful means are provided, and competent agents are designated and accept their trust, it is not easy to see how such an agreement differs from any other valid contract whereby parties contract to furnish funds for a common object beneficial to them both. We can not hesitate to hold that a school or church, or other similar institution, which men are anxious to have built, and promise to pay for, is “ valuable ” to them in a legal sense. In most cases there is a pecuniary value in the enhanced price of neighboring property. But, apart from this, any worthy purpose for which men generally are willing to expend money, must be regarded by courts as worth money, when it is promised. We know of no safer test to apply to human transactions.

Had the declaration been properly framed,- we should, therefore, be_ compelled to hold that the plaintiff in error was liable in this ■ action. And we do not think the evidence admitted would have been improperly received to establish the case under proper pleadings. But we do not think the declaration so framed as to maintain the judgment. The case shows that the original [promise was in favor of the Michigan Central College, and that the subsequent promise was for an entirely different purpose. The declaration in both counts is confined to a subscription for the use of the Michigan Central College.

The subscription is not framed, nor is the case so made t>ut as to show it was designed, as an inducement to that college to endeavor to obtain authority to remove to Hillsdale. Such an undertaking would have been a good foundation for a subscription. As the case stands now, it -shows a subscription for the use of a college not located at Hillsdalej and which never agreed to go there. The statute incorporating this college as the Michigan Central College at Spring Arbor, was, we think, operative to confine it to that place until amended; and the college could not be lawfully removed without permission from the Legislature: — People v. Oakland Co. Bank, 1 Doug. Mich. 282. The original subscription, being for an impossible purpose, Was invalid; and the renewed subscription is not declared upon according to the facts, which would • sustain it. A further amendment is therefore necessary in order to permit the proper evidence to be received. Judgment must be reversed, with costs, and a new trial granted.

Christiancy J., concurred.

Manning J.:

The following is a copy of the subscription paper signed by the plaintiff in error and others: “We, the subscribers, severally promise to pay the sums set opposite our respective names, to the order of Henry Waldron, Chauncey W. Ferris, and Allen Hammond, for the purpose of procuring land, or erecting a college building, in or near the village of Hillsdale, for the use of the Michigan Central College. Fayette, January 26th, 1853.’’

It is not denied that here is a promise, but it is said that the plaifitiff in error is not bound by it, because there was no consideration for it. What is a consideration ? The price paid or agreed to be paid for the promise — that is, the thing done or agreed to be done, is the consideration. Hence mutual promises are a good consideration for each other; as where A promises B to do a certain thing in consideration that B promises A to do a certain other thing. It is not necessary that either-party should be pecuniarily benefited by the act done or to be done by the other. The promise may inure to the benefit of a third person, and not of the party to whom it is made. It is immaterial, therefore, that the college which is to receive the benefit of the promise is not a party to it. The benefit to the college is the inducement to, and not the consideration of, the promise, which is the subscription of the paper by others. Each subscriber-promises to pay to the persons named in the subscription, for the purpose therein mentioned, the sum set opposite-his name, in consideration of a like promise by every other subscriber. This is clearly implied in the subscription itself. It' is the understanding of every person who puts his name to a subscription paper; and when the object is conducive to the public weal, as in the case before us, it seems to me it would be a strange perversion of legal principle to refuse to enforce the subscription on a plea of want of consideration. Most of our church and college edifices have been built by subscriptions like the one before us; and shall it be said that the law is indifferent to such enterprises, and that it looks on such subscriptions as blank pieces of paper ? I think not.

Another objection is, that the college was located at Spring Arbor, and could not be removed to Hillsdale Without a violation of its charter, and that the promise was, therefore, for an object that could not lawfully be accomplished. If it was to do an illegal act — by which I mean something that was evil in itself, or was prohibited by statute — or to do what was morally and physically impossible, the objection would be a valid one. The removal to Hillsdale would be unlawful only in the sense that it would be a violation of the contract between the college and State, which the latter might waive. It would not be a violation of any criminal or other law of the State; and it is but fair to presume that the subscribers contemplated a removal with the assent of the State. The contrary does not appear, and we are bound to suppose the parties had a lawful instead of an unlawful object in view, when both came within the phraseology of the agreement. ■ We must so construe it as to give effect to it. ,,

But the Judge finds that the college refused to remove to Hillsdale. That being the case, there was, it seems to me, a failure in the object of the enterprise that released the subscribers from its further prosecution. But he also found, that, after the refusal, a new promise was entered into to complete the building for another purpose, viz. : to be used and occupied according to the terms and conditions of a certain trust deed, mentioned in the finding. On this last promise the defendants in error, who were plaintiffs below, would have been entitled to a judgment had' it been set out in their declaration. They pi’oved a different cause of action from the one stated in the pleadings.

Martin, Ch. J. was not present when the cause was decided.

Judgment reversed.


author: Campbell J.:

text:
    Stephen C. Andrews v. Henry C. Kibbee and others. Henry C. Kibbee v. Stephen C. Andrews and others.

      Cross bill5 its nature and purpose.— A cross bill for relief is always designed for-the purpose of enabling a defendant to avail himself of some defense -which can only be made complete by granting him some affirmative relief' against complainant or against some eo - defendant. It must be strictly confined to the matters involved in the original cause. Where a bill introduces other distinct matters, it is an original bill, and the suits are separate and distinct.
    A judgment creditor filed his bill in equity to enforce the payment of the judgment* making one a defendant who was alleged to be indebted to, and also a fraudu-. lent grantee of, the judgment debtor. This defendant afterwards filed his bill against the complainant, claiming to have become the owner of the debt for Which the judgment was rendered, and of a collateral mortgage given to secure* it, and praying to have his title to these securities established. The judgment, debtor (who was the mortgagor in the collateral mortgage) and the holder of a prior mortgage were also made parties, and the hill prayed leave to redeem from the prior mortgage, and the foreclosure of the other. Held, that this was. an original, and not a cross bill.

      Parties to judgment creditor's bill. — Where the judgment creditor had assigned the* demand upon which the judgment was rendered, to secure a debt of equal amount, it was held, that the assignee alone, or those succeeding to his rights* could bring suit in equity to enforce tbe judgment. The nominal residuary interest in equity of the assignor, could not entitle him to bring suit, unless it should be alleged in his bill that the assignee neglected or refused to do so,, under circumstances calculated to prejudice his rights.
    The fact that, in such a case, one of the defendants has become the assignee, will not enable the complainant to sustain his hill, which avers the ownership to bo in himself; since the testimony showing the assignment, would also show that, complainant had no right of action such as he set out in his bill.

      Heard May 14th, 19th and 20th.

      Decided December 4th.

    Appeal by Stephen C. Andrews, from decree made by tbe Wayne Circuit Court in Chancery. The facts, and the-nature of the pleadings, sufficiently appear by the opinion.

      J. JP. Whittemore and /S'. T. Douglass, for the appellant,
    argued that, notwithstanding the assignment of the PorterKibbee bond and mortgage to Henry C. Kibbee, Andrews had such an interest as entitled him to maintain a creditor’s bill: — 3 Edw. Ch. 106; 2 Barb. Ch. Pr. 174; 1 Hill on Mort. 516. And that relief might be had on the case as it stands. Relief may be given on facts disclosed by answer: —10 Yerg. 118; 8 Dana, 183; 7 Yerg. 30, 36.

      D. G. Holbroolc and G. V. JUT. Zothrop, for Henry C. Kibbee,
    insisted that the second bill was not a cross, but an original bill. The bill of Andrews avers the judgment debt to be his own. The answer of Henry C. Kibbee is silent on the subject of this ownership, but notwithstanding this, the averment in the bill, being material, must be proved: — 2 Ohio, 415; 6 Cranch, 51; 3 Bibb, 536 ; 21 Ill. 40; 2 Gilm. 67; 14 Ark. 641; 5 Mich. 179. But the averment is shown to be untrue, and that bill was therefore properly dismissed.
   Campbell J.:

These cases having been heard together, and it being claimed on the one hand, and denied on the other, that they are to be regarded as cross suits, and affected by the rules governing those, it becomes necessary, before referring to the peculiar form of the issues, to refer to such of the facts as may bear upon that portion of the controversy.

Porter Kibbee some years ago executed to William S. Driggs a bond for $5000, and an accompanying mortgage on certain property, which was incumbered by previous mortgages made by prior owners. This bond and mortgage were assigned by Griggs to Stephen C. Andrews, who, on the fifth of March, 1858, assigned them to his uncle James Andrews, to secure two notes for $2,100 each, payable respectively April 1, 1859, and April 1, 1860. In June, 1859, Stephen C. Andrews, who had retained the bond in his possession, sued Porter Kibbee upon it, in the name of Driggs for the use of said Stephen, and obtained judgment upon it September 12, 1859, and upon that judg_ ment, after the return of an execution, filed a creditor’s bill in his own name, claiming to be the sole owner of the claim, making no allusion to James Andrews or his interests, and bringing in Henry C. Kibbee as indebted to Porter Kibbee upon alleged joint dealings, and as having taken the title to certain land from Porter Kibbee, with intent to hinder and defraud his creditors. The Buhls were brought in as purchasers of the same land. This bill was filed December 21, 1859, and was defended by Henry 0. Kibbee, and proofs were taken from time to time on both sides. In March, 1861, Henry C. Kibbee purchased the securities which had been given by Stephen C. Andrews to James Andrews, and the bond and -mortgage assigned as before mentioned. In August, 1861, he filed a bill to establish his title to the securities, and to foreclose the mortgage, making as- defendants, George ~W. Bissell, as holding the prior incumbrances, which he claimed the right to redeem, Porter Kibbee, as mortgagor, and Stephen 0. Andrews, as assignor of the securities, charged with having asserted a right to collect them for himself by the proceedings at law and in equity first mentioned, and as having colluded with Bissell to defeat the equity of redemption in the mortgaged premises by previous foreclosure pur. chases in Bissell’s name. The Court below authorized Henry C. Kibbee to sue at law on the notes against Stephen C. Andrews, dismissed the bill of the latter, and granted a decree allowing a redemption and sale of the mortgaged premises, but directing the proceeds to be paid into court to be distributed as should be found proper on a subsequent inquiry.

Before examining into the other questions which may arise upon the testimony and pleadings, it is necessary to determine whether the bill filed by Henry C. Kibbee is a cross bill.

A cross bill for purposes of relief is always designed for the purpose of enabling a defendant to avail himself of some defense which can only be made complete by granting him some affirmative relief against complainant, or against some co - defendant. Equity rarely can grant any affirmative relief upon an answer alone. If this could bo done, there could never be any occasion for a cross bill, which must be strictly confined to the matters involved in the cause. A bill which introduces other distinct matters is an original bill, and the suits are separate and distinct: — Story Eq. Pl. § 631; Griffith v. Merritt, 19 N. Y. 529.

A brief comparison of the issues before us, shows that the two causes have very little in common, and have no common issue of any substantial importance. The suit of Andrews is purely a judgment creditor’s bill on a personal judgment. The rights of James Andrews or his assignees are not referred to in the pleadings, and there is no reference in them to any mortgage security connected with the bond sued upon. Such a bill, had James Andrews retained his securities, would not have affected or prejudiced his rights. He might have filed such a bill as Kibbee’s upon the same facts, and it could not be in any way connected with the former suit. The fact that Henry C. Kibbee is a defendant in the other suit, and is sought to be charged as a debtor or trustee of Porter Kibbee, does not prevent him from bringing such actions on his own account as he may see fit, and they can not be deemed cross actions unless the issues are dependent upon the same matters. A bill to foreclose or redeem a mortgage presents no case which could possibly be connected with a judgment creditor’s bill. The controversies, although having an apparent relation arising out of the peculiar circumstances, have no legal dependence on each other, each having matters involved which are entirely foreign to the other.

The suits being distinct, each must be considered by itself, and determined upon its own facts. In the present case it may perhaps lead to no different result, inasmuch as no party can be entitled to any affirmative relief not warranted by the allegations in the pleadings.

The ownership by Stephen C. Andrews of the bond against Porter Kibbee, is not admitted by Henry C. Kibbee. The judgment being in favor of Driggs, the nominal plaintiff, must, if valid at all, stand in favor of the reat owner, whoever he may be. The evidence taken in the creditor’s suit shows that Andrews had previously assigned the bond and mortgage to secure a debt of equal amoitnt to James Andrews. The latter only, therefore, or those succeeding to his title, could bring a suit to enforce them. Stephen C. Andrews had, it is true, a nominal residuary interest in equity, but he could not on that account bring any suit in equity, unless it should be alleged in his bill that the assignee neglected or refused to do so, under circumstances calculated to prejudice his rights. He has no right otherwise to intermeddle with assigned property. The bill before us goes upon no such hypothesis. Stephen C. Andrews claims in that to be the sole owner of the bond on which he sues, and his pretensions are entirely adverse to those of his assignees, the bill not alluding to any assignment, but asserting the continuance of his original title,

■ It is claimed, however, that because Henry C. Kibbee has become possessed of the securities, and is a party defendant, the case under its present aspect is so changed as to rectify this objection. This is not so. The testimony which shows title in Henry C. Kibbee, shows that the complainant had no right of action such as he sets up in his bill. It is difficult to see how he could have amended his bill so as to remedy this defect, inasmuch as there is no evidence [tending to show any indisposition in the assignees to enforce their claims, and Andrews makes no offer to redeem them. But be this as it may, the bill has not been amended, and no supplemental pleadings have been filed. The case stands in a position where no such question can be entertained. This bill was properly dismissed.

The decree upon Kibbee’s bill is so framed as to guard all of the rights which Andrews may have in the premises. The only controversy arising upon Kibbee’s rights in the bond and mortgage is, whether tbe notes given to James Andrews are usurious, and on that account liable to deduction. The Court authorized a suit at law to be brought upon these, and the question is one. which can be tried at law more appropriately than in equity. ’ The decree granting a right to redeem from Bissell’s liens, and a right to sell the mortgaged premises, is for the benefit of Andrews as much as of Kibbee; and, inasmuch as it requires tbe proceeds to be paid into court, and not to Kibbee, the latter can only receive hereafter so much as may be found due him on tbe notes, which will be determined most effectively in tbe suit at law.

The decree must be affirmed, with costs.

Manning and Christiancy .JJ. concurred.

Martin Ch. J. was not present at the decision;


author: Christiancy, J.:

text:
    Maurice Hickey and another v. David M. Hinsdale.

      Invalid agreement not an estoppel. — A paper signed by a judgment debtor, and delivered to the attorney for his creditors, after execution issued on the judgment has been levied, by 'which he agrees’ to settle the judgment, by paying a certain amount in, notes satisfactory to the attorney, or, in default thereof, to turn out the property levied upon in payment, is neither valid as a contract, nor can it operate' by way of estoppel against the debtor, where it appears that the creditors had given the attorney no authority to receive such a paper, or to compromise the action in any manner.

      Admissions by invalid agreement. — But, in an action of replevin brought by the debtor, for the property levied upon, it was held, that said paper was admissible in evidence against him,'' as a parol admission of the facts recited in it, and open to explanation and contradiction as such.

      J2eplevin of property in plaintiff's possession. — Where an officer, by virtue of an execution, levied upon property in tbe dwelling house of the judgment debtor, and made an inventory and appraisal thereof, but did not remove the same* • and left the house and the property as he found them, but still claiming the property by virtue of the levy, and the judgment debtor brought replevin, therefor; it was held that, as the property was in his actual possession at the time of suing out the writ, the action could not be maintained.

      Replevin under our statute is peculiarly a possessory action; and its primory object is to enable the plaintiff to obtain the actual possession of property wrongfully detained from him by the defendant at the time the action is brought.

      Heard October 14th.

      Decided December 5th.

    Error to Wayne Circuit.
    The action was replevin, by Hinsdale against Hickey and Bigelow, who justified under an execution against Hinsdale, by virtue of which Hickey, acting as constable, and by direction of Bigelow, levied on the property replevied, which consisted mainly of household furniture. The execution was issued upon a judgment in favor of McBride, Robinson and Hoover, against Hinsdale as garnishee of Samuel Chamberlain, rendered March 1, 1858, for^$249 58. On the trial, the defendants, as a part of their case, offered in evidence a paper in the words and figures following, to wit:
    “ I hereby agree to settle the claim of McBride, Robinson and Hoover, against me, as garnishee of Samuel Chamberlain, within three days from this date, by paying to J. E. Bigelow, attorney for said parties, the sum of twenty-five dollars, and giving him two promissory notes, one for $100 payable in ninety days, secured satisfactorily to said Bigelow, and the other for $125, secured satisfactorily to said Bigelow, payable in nine months, and that in case of a failure to perfect said settlement, that I will turn out the property levied upon by said Hickey, by virtue of an execution in said cause, to be applied in payment of said debt, except the $250 worth, and three stoves put up, selected by me as exempt by law. D. M. Hinsdale.

    Detroit, March 1, 1859.”
    The evidence being closed, the defendants submitted to the Court, in writing, several propositions of law, deemed by them to be material to the case, and required decision upon the same; among which were the following:
    1. “That the above writing signed by Hinsdale (which was admitted subject to objection) is competent evidence in the case. Defendants insist that it is competent as an admission of. a levy by Hickey, and a selection by Hinsdale of the two hundred and fifty dollars exemption; also, that it operates as an estoppel upon Hinsdale from replevying during the three days expressed in said writing, and also estops him from denying that all proceedings taken under the execution prior to said writing had been regular. Said writing is not void under the statute —it is not a bill of sale, mortgage or lien.”
    As to this proposition, the Court found that the alleged contract of the plaintiff was competent evidence for some purposes; that it was not a valid and binding contract, for the reason that no consideration appears upon its face, nor was proved, and also because the evidence shoAved that the attorney for the plaintiffs in that case, the said defendant Bigelow, had no authority to enter into such a contract on their part to compromise the judgment, and that it was an attempted compromise of the debt, and that an objection being taken to the admission of the alleged agreement, no attempt whatever was made to offer any evidence of a consideration, or of authority to Bigelow to make the compromise. The Court found, further, that it was not an admission of the legality and regularity of the proceedings of the defendants; that. it was not an admission of facts not appearing to have been known to the plaintiff at the time; that, as the evidence appeared, said paper could not operate as an estoppel, but that it would still have been void under the statute Avithout the wife’s signature, as a contract for the creation of a lien upon household furniture, and also upon certain articles in said inventory, which are exempt from execution by name.
    2. “That the plaintiff can not recover, because the property was in his own possession at the time the writ of replevin issued.’’
    As to this the Court found, that the property having been levied upon on said execution, the levy not having been released, the property remained in the legal custody of said Hickey, although left by him in the house of said plaintiff.
    And the proceedings on the execution appearing to have been irregular, the Court rendered judgment for the plaintiff

      -J. K. Bigelow, for plaintiff in error.

      W. G. ' Hoyt, and H G. Knight, for defendant in error,
   Christiancy, J.:

There was no error in holding that the agreement signed by Hinsdale was not a valid contract, and could not, therefore, operate as an estoppel against him. But the Court held it was admissible “for some purposes;” and we think it was admissible as a parol admission of the facts recited in it, and open to explanation and contradiction as such.

But, as we understand the finding of facts, we think the Court erred in holding the plaintiff below entitled to maintain the action of replevin for the goods in question, as they seem to have been already in his possession at the time the writ of replevin was issued: for though it is found that defendant Hickey, when he levied upon the goods in the dwelling house of Hinsdale, took them into his posession, it seems to have been only so far as merely to make an inventory and appraisal of them; as it is further found that “ he did not in fact remove the goods from the house, but that he made no release thereof, or of any part of them, from said levy, but left the house and property as he found it, still claiming the property, by virtue of said levy; and whilst said defendants’’ (plaintiffs in error) “ were absent from said house, and before the time had expired for perfecting' the settlement according to the agreement offered in evidence, the plaintiff issued his writ of replevin,” &c. It is clear from this that, whatever right of possession Hickey may have had or claimed, the property was in the actual possession of Hinsdale, the plaintiff below, at the .time he sued out his writ of replevin: while, upon the plaintiff’s own theory, Hickey had not even the right, but a mere claim of possession : since the bringing the action, and plaintiff’s affidavit to obtain the writ, denied the defendants’ right of possession. So far as the levy upon the property may have been illegal, or the defendants’ interference with it, under the claim of a levy, unauthorized, doubtless the plaintiff below might have had an action of trespass for such wrong, though the property had been returned to or left in his possession (and possibly of trover for a conversion). But the action of replevin (under our statute at least) is peculiarly a possessory action; and its primary object is to enable the plaintiff to obtain the actual possession of property wrongfully detained from him by the defendant at the time the action is brought. The statute, and the whole theory of the action, go upon the assumption that the plaintiff is not in actual possession of the property,, and that the defendant wrongfully withholds that possession from him. Why bring the action to obtain the possession if the plaintiff has it already without suit ? A mere claim to the right of possession by another cannot give the right to maintain replevin, while the plaintiff has the' possession in fact. An action of replevin is not in the nature of a bill quia timet.

But the counsel for defendant in error insists that section one of chapter one hundred and fifty two, Compiled Laws, gives the action in all cases of a wrongful taking. The language is, “ Whenever any goods or chattels shall have been unlawfully taken or unlawfully detained, an action of replevin may be brought for the recovery thereof,’’ &g. But it is very plain from the subsequent provisions of the statute, in reference to the affidavit, the writ, declaration, &o., as well as from the nature and object of tbe [action itself, that a wrongful taking alone will not sustain tbe action, if tbe possession bas been restored to tbe plaintiff, or he bas it at tbe time the suit is instituted.

At common law replevin could only be maintained where the -original taking (as well as tbe subsequent detention) was unlawful-: — 1 Chit. Pl. 186 to 190. Detinue was the common law action to obtain tbe property where tbe defendant came rightfully into possession, and tbe detention only was wrongful. The object of this provision of our statute was to extend the remedy by replevin, so as to include both classes of cases. But in both equally there must be an unlawful detention at tbe time of tbe institution of the suit. This detention is the whole gist of the action.

The finding of facts does not therefore support the judgment. The judgment must be reversed, and the plaintiffs in error must recover their costs in this Court and the Court below.

The other Justices concurred..