author: Mitchell, J.

text:
    Henry N. Hill, Plaintiff in error, vs. Henry S. Robbins, Defendant in error.

    A bankrupt discharge will not be a bar to a suit upon a claim when a creditor’s name frac been omitted from the schedule of creditors and the list given to the messenger, where the creditor had no knowledge of the bankrupt proceedings, and it is not necessary that the omission should be shown tobe fraudulent or intentional. But held further, that in this case the facts proved were of such a nature that fraud and intentional omission could have been found as a fact by the justice. There being no special finding, this court must hold that the justice found proved all the facts necessary to his judgment, there being some proof to justify such finding.
    Objection to insufficiency of proof, that is to its degree or character, should bo made when the proof is taken or offered, and if so made and urged before the justice, a court of re. view will not reverso a judgment when there is any proof to sustain it.

      Oakland Circuit,

      November, 1870.

      Certiorari from the judgment of a justice of the peace.
    The declaration is on the common counts in asssumpsit.
    Plea, general issue, with notice of set off, and that defendant had beeen discharged from his indebtedness by a decree in bankruptcy.
    The only evidence offered by the plaintiff to prove his account was the deposition of the plaintiff taken before a justice in Ohio.
    It was' objected that the notice of taking the deposition was-not sufficient, but its reception and reading is not made a point of. error in the certiorari affidavit.
    In the deposition the plaintiff states that he sold and delivered to the defendant, at different times, in the year 1868, pump cylinders, amounting in all to $202 40. They were sent to defendant as requested in written orders, dated respectively February 13th, February 24th, March 25th, March 28th, May 9th-August 3d and September 19th, 1868. There were delivered before the 30th of May, all but $60 worth, which was delivered afer that date, on the two last orders.
    .The defendant sent drafts and made payments March 28th,. $50, by draft; August 3d, by discount for ■ defects or otherwise, $22 60 ; August 12th, by draft, $40, and December 1st, by draft, $25 00 By this statement there was due the plaintiff May 30th, 1868, $92 40. There were delivered after that, $60 worth, making due, as claimed by plaintiff, $152 40, on which there was paid in August and December, $65 00, and a discount of $22 60, leaving unpaid December 1st, 1868, $65 00 over and above the last payment made at that timé. The written orders were not produced nor théiir absence accounted for, and defendant did not appear at the taking of the deposition. The defendant objeeteed that the account was not sufficiently proved, because the original orders were not produced and proven or accounted for. The justice held the account to be sufficiently proved. The defendant then introduced, (as stated in the return, but a copy is not returned,) a certified copy of a decree of the District Court of the-United States, for the Eastern Disitrct of Michigan, In Bankruptcy, dated October 13, 1868, by which the defendant is dedared to be a bankrupt, and forever discharged from all debts and claims which by the bankrupt act are made payable against his estate, and which existed on the 30th day of May, 1868, the day on which his petition was filed.
    In the plaintiff’s deposition he states tha.t he had no notice of the proceeding ,in bankruptcy, and had no knowledge of such proceedings until sometime in November, 1869, more than a year after the discharge was granted.
    The plaintiff introduced duly authenticated copies of the schedules of defendant’s creditors, which were attached to his petition, and in which plaintiff is not named as a creditor, nor is his claim or account in any way referred to — and also a copy of the warrant of the messenger and his return thereon, in which the plaintiff is not named in the list of creditors nor among the persons to be notified of the bankrupt proceedings. The schedule of creditors is not verified by the affidavit of the debtor or petitioner, seporately from the verification of the petition.
    Upon these proofs the justice rendered judgment for the plaintiff for $64 80, the .balance claimed due by the plaintiff, without interest.

      A. G. Baldwin, for Plaintiff in Error.

      Oscar Wisner, for Defendant in Error.
   By the Court,

Mitchell, J.

The defendant brings the- case into this Court by certiorari and in his affidavit assigns the follow, ing grounds or causes of error.

1st, That the justice erred in rendering judgment for ,any part of the account that accrued before May 30th, 1868.

2d, That he erred in holding that the omission of plaintiff in the schedule or list of creditors made the decree of discharge of no effect as against him.

3d, That he erred in holding that it was not necessary to prove that the omission was wilfull or fraudulent, and in notholding that such omission is, in law, presumed in good faith.

4th, That he erred in holding that the account that accrued after May 30th was not paid by the subsequent payments.

5th, And that he erred in rendering judgment upon the proof in the deposition, the original orders not having been produced or accounted for.

The first three causes of error are essentially the same, and will be considered as one general proposition: That is, that the omission to name a creditor in the schedules and notices required by the bankrupt act and the rules governing bankrupt proceed, ings, does not prevent the discharge from being a bar to all previous claims, whether mentioned, or known’or not, .unless it is made to appear that the omission was fraudulent or intentional.

Bankrupt proceedings are in the nature of a suit wherein the debtor stands as the suitor, and is the plaintiff and his creditors are the defendants.

It is a most obvious principle that a party is not bound by a proceeding of which he hqs not had notice, either actual or constructive.

The bankrupt law requites the petitioner to make a full schedule of all his creditors, which is to be verified by his affidavit, and as required by the rules adopted to govern proceedings under the bankrupt law, the schedule should be so verified seperately from the petition to which it is attached.

Under the law and rules the messenger is required to serve written or printed notice forthwith, either by mail or personally, on all creditors named in the schedule, atleast ten days before the day fixed for proof of debts, (fee. No provision is made for notice to any one unless named in the schedule. There is no provision. for constructive notice to any one not so named.

It is obvious that a creditor not named ought not to be bound by a discharge of which hois entitled to notice, and where no attempt has been made to give him notice. He has had no day in court, no opportunity to prove his claim or to have aDy voice in naming an assignee, and no share of the proceeds of the bankrupt estate. In this respect, I think the present law materially different from the law of 1S42, under which the requirements for the schedule and of notice to creditors were not required to be as strict or precise as required by the present law.

It is, held that the justice did not err in deciding that the bankrupt discharge was not a bar to so much of plaintiff's claim as arose before May 30th, 1868. In regard to the first three points there was no error.

It is not essential that the omission to name a creditor should be intentional. Butin this case there was proof from which the justice could well infer that the defendant at the time of making' his petition and schedule knew of the plaintiff’s elaim, and that the omission to ñamé him among his creditors was not casual or accidental. The account commenced February 13th, and an order was given as late as May 18th, only 12 days before filing the petition, and defendant sent money ou the account, March 20th. It is hardly reasonable to suppose that so recenta matter was forgotten or accidentally overlooked. But to make it still more unreasonable, the defendant continued to deal with the plaintiff after filing his petition the same as before, as if no bankruptcy pro- ' ceediugs were pending, and gave the plaintiff-no intimation that he claimed to be discharged from that part of the account arising before May 30th..

Whether the omission to name the plaintiff in the schedule of creditors was casual and by mistake, or was fraudulent and intentional, was a question of fact for the justice, and there being evidence from which he might find that it was fraudulent and intentional, this-Court will not-review his finding in that respect.— ‘ Error will not be presumed, but must be made to appear affirmatively.” . Comstock vs. Hollon. 2 Mich., 355; 3 Mich. 195; 4 Mich., 495; 5 Mich., 33; 7 Mich., 423; 10 Mich., 153; 11 Mich., 181, 327; 13 Mich., 239.

“ In support of a judgment the evidence will be presumed to have been sufficient.” Farmers’ & Mech. B’k. vs. Troy City B’k. 1 Doug., 457.

/The fourth point of error it is not necessary to discuss.

If I am correct in the above rulings, it is immaterial to what part of the account the payments were applied.

The remaining question is whether the account was sufficiently proved, it being stated by the plaintiff .in his deposition that he had sold the defendant some stane-ware cylinders in 1868, giving items amounting in all to $202 40, and that he sold them for the reason that the defendant wrote him ordering them ; the written orders not having been produced nor their absence accounted for.

It is proper to say that this point was not urged or discussed before this Court, it having been stated that the plaintiff in error relied upon the other assigned errors. No such objection seems to have been made before or brought to the notice of the justice. It is not mentioned in*the return. Any objection to the deposition or to the sufficiency of the proof should have been made at the time when the deposition was taken, or at least when 'offered in evidence, so that the party taking it might have an opportunity to supply the defect,|and the defect or point of objection should have been pointedjout at that time. The testimony having been taken and receivedj and the canse submitted without this objection having been made, it is too late to raise or urge it in this Court, and it must be treated as waived. The party objecting should state the true ground of objection, and if that is untenable, the judgment should not be reversed on a new objection for the first time taken in in a court of review, if it is one that might have been obviated on the trial. Young vs. Stephens, 9 Mich., 500.

The deposition in this ease was objected to for want of proper notice and for no other reason, and the overruling of that objection is not assigned as error. I think the evidence of the sale and delivery as stated in the' deposition in connection with the proof of payments and of the other facts operative in the case was enough to make a prima facie case, and to put the defendant to his proofs, and warranted the judgment rendered by the justice.

There is not such a lack of proof as authorizes this Court to, reverse the judgment, and it must be affirmed

See Berry vs. Lowe, 10 Mich., 9; 3 Mich., 612; 8 Mich., 424; 11 Mich., 353; 12 Mich., 41.

Judgment affirmed with costs.


source: Caselaw Access Project

author: Goodwin, J.

license: Public Domain

text:
    John S. Agens and John W. Loucks vs. Hampton B. Smith.
    A circuit coart commissioner has no authority to make an order citinga party to appear before a circuit judge or circuit court, on an application to dissolve an attachment; andsnch application and citation- do' not operate as a stay of proceedings.

      Delta Circuit,

      September, 1870

      Mr. Mopes, for Plaintiffs.

      Mr. Clark, for Defendant.
    This was a suit commenced by attachment, the writ personally served, narr. filed, default entered, and the same made absolute at the- present term of the Court, with order for assessment of damages. It appeared that after the issuing of the attachment, the defendant, by his attorney, made application to a Circuit court commissioner for a dissolution of the attachment, under the provisions of the statute on that subject, C. L. 1275, .and the commissioner issued a citation returnable before the •circuit judge on the first day of the present term of the Court, which was served on the plaintiffs in Marquette County, by the •■sheriff of that county. There was no order for stay of proceedings. The plaintiffs now move for assessment of their •damages.
    The defendant, by his attorney, objects, and insists that by the proceedings for the dissolution of the attachment, the other proceedings in the cause are stayed until those are disposed of that the default is irregular, and the plaintiffs are not entitled now to recover damages assessed.
    1, That the circuit court commissioner had no power to make such order for citation before the circuit judge.
    2, That the application was by attorney, when it should ¡have been by defendant in person.
    3, That under the statute referred to it could not be served ■by the sheriff of Marquette County, or other than #Delta County.
   By the Court,

Goodwin, J.

The proceedings provided for in the statute referred to, are special before the respective officers mentioned in it, and not before the Court in .term, and it is not «competent under it forthe circuit court commissioner to make the citation issued by him returnable before the circuit judge or in term time — he could only make it returnable before himself there was no order staying the ordinary proceedings in the cause. ■The plaintiffs’ proceedings being regular, they are therefore entitled to proceed with the assessment of their damages.


text:
    James R. Elliot and John N. Hiller, vs. John McHale.
    The defendant lived at Centerville, some miles from Escanawba, Notice of trial was directed to defendant at Escanawba, with the name “ Centerville” also written on the envelope. It was customary for the railway conductor to receive letters from the P. M. at Escanawba, so directed, and to deliver them at Centerville. Held, that thus mailing O’ notice was not good service under the rule.
    The filing of a note of issue is for the convenience of the clerk, and a neglect to file such-note is not a good ground for striking the cause from the calendar.

      Delta Circuit,

      September, 1870.

      Mr. Royce, for Plaintiffs.

      Mr. Ball and Mr. Crocker, for Defendant.
    The defendant moved that the case be stricken from the calendar of cases for trial, and that the same be dismissed for reasons following:
    The plaintiff’s attorney insists contra, that the proceedings by defendant’s attorney are irregular, and not in conformity to the statute referred to, and did not operate as a stay of proceedings,, alleging,
    1, That there was no legal service of notice of trial.
    2, That there was no note of issue filed.
    3, That there had been no county fee paid.
    The cause appeared regularly on the calendar on the first day of the term.
    As to the notice of trial,it appeared that the defendant lived at a place called Centerville, in Marquette County, on the railroad between Escanawba, the county seat of Delta, and Negaunee, and within forty miles of Escanawba; that the notice was served by mailing it to the defendant, directed to him at Escanawba, depositing it in the post office there with the name “ Centerville” also written on the envelope, and that it was customary for the postmaster to send sueh letters by the conductor of the train, to be left by him at the station designated by the additional inscription on the envelope.
    The entry fee was forthwith paid. It was insisted on the part of the defendant that the service of notice of trial was insufficient, and for that cause and for’ want of a note of issue, it should be stricken from the calendar of cases for trial.
   By the Court,

Goodwin, J.

It seems to me, and I have therefore so held, that the note of issue prescribed by the statute and rules is for the clerk to whom it is to be delivered, to guide him in making up the calendar for the term. The party is to be governed by the notice of -trial served upon him. The statute and rules provides for both; the one for the clerk, the other for the party. And when the cause is placed by the clerk on the calendar and found there on the. first day of_the - term, upon its being called, it is well there..

The service of notice of trial in the ease l think insufficient-The double direction of the letter as to place, to be carried not in the mail, but by a conductor of the train, to be delivered not at a post office, but a place at a Railway station, I do not conceive to be a proper compliance with the rule and statute. For this reason, therefore, the motion that the case be stricken from the calendar should be granted.


author: Brown, J.

text:
    George Lumbard, vs. James Zimmerman.
    Where an appeal was attempted to be taken from the judgment of a justice of t.he peace, and it appeared on inspection of the return that the jurat to the affidavit was not signed, Held on motion, that the appeal should be dismissed* Held, also, on application for an order for an appeal in such case, that the same eho'úld be allowed, in- pursuanco with the provisions of § 3842, C. L.

      Kalamazoo Circuit,

      November 1870.

      O. T. Tuthitt, for Plaintiff.

      Chas. A. Thompson, for Defendant.
   By the Court,

Brown, J.

In this cause the appellee, moves to dismiss the appeal, on the ground that the same has not been legally taken. < As appears by the return, Cae jurat is not signed, neither does the name or official character of the officer administering the oath appear in the body of what; is claimed as an affidavit. An affidavit is an oath reduced to writing, sworn before and attested by him who hath authority to minister the same. Bac. Abr., 124; 1 Mich. Nisi Prius, 189. The paper under consideration is not an affidavit. Let the cause be dismissed and the files remitted to the Justice, with a certified copy of this order.

In the foregoing case, after the above’ order was entered, application was made to the Court for an order authorizing an appeal, in pursuance with the provisions of § 3842, G. L., which provides that Appeals may he authorized by the Circuit or District Court, after the expiration of five days, where the party making the appeal has been prevented from taking the same by circumstances not under his control.” The affidavit of the appellant, upon which this motion is predicated, alleges that he sigend and swore to an affidavit for' an appeal and filed the same with the Justice within the five days prescribed by law — that the justice administering the oath neglected to sign the jurat, which fact he had no knowledge of until the return was made to this Court.

The statute requires'the party appealing, within five days after the rdndition of judgment, to present to the Justice an affidavit made by himself, his agent, or attorney, before any person authorized to administer oaths, stating that such judgment is not in accordance with the just rights of such person, &c., G. L. § 3836.

It has been held, in some of the Circuits of this State, that a proper construction of this statute requires the person taking the appeal to see to it that his affidavit is complete and perfect before filing it with the Justice, and that if he files it without the jurat being signed, he should not be permitted to allege, afterwards, that such omission was a “ circumstance beyond his control.”

• In the case under consideration, the instrument designed as an affidavit was sworn to before the Justice who rendered the judgment.

The “ filing” of the affidavit, referred to in the statute concerning appeals, means, of course, nothing more than the delivery of the same to the Justice.

It is said it is the duty of the person taking the appeal, to mahe and file an affidavit, éso. But the affiant has no authority to sign the jurat; and inasmuch as the attestation is an essential part of the affidavit, it is clear that the only sensible construction of this requirement is that the appellant, his agent, or attorney, shall mahe and cause to be made an affidavit, unless prevented by circumstances not under his control. A man may, usually, control his own actions, but it is not always so easy to control others. In this case, the appellant delivered the paper, designed as an affidavit, to the Justice, at the time he signed and swore to it. He had no power to compel the Justice to sign theywrai, but had aright, on paying his fees, to believe he would do so immediately.

I think the omission of the Justice to attach his signature, was within the spirit, if not the letter of the statute, a circumstance not under the control of the appellant.

I do not now desire to intimate what would be the opinion of the Court, had the affidavit been sworn to before some other omeer and delivered to the appellant "without the jurat being signed, and by him delivered to the Justice, in that imperfect condition.

Let the order asked for be entered.

(,


author: Cooley, J.

text:
    Jane Briggs vs. Russell Briggs.
    A bill for divorce may be amended after cause has been set down for Hearing on pleadings by adding new specifications of cruelty.
    After amendment, divorce bills should be resworn. Not required where petition to amend, setting forth the proposed amendment, is sworn to; at least, where such amendment precludes all idea of collusion.
    A physician will not be al lowed to testify either to matters communicated by the patient for the purpose of procuring treatment or to knowledge acquired in any manner for that purpose.
    Grossly indecent and profane language, continued, with occasional outbursts of violence, is “ extreme cruelty” within the meaning of the law.
    Appeal in Chancery from Washtenaw Circuit.
   Opinion by

Cooley, J.

The bill was filed for a divorce from the bonds of matrimony on the ground of extreme cruelty. The Circuit Court dismissed the bill aD,d complainant appealed.

The case depended mainly upon conflicting evidence of facts. A few questions of law were, however, involved, which .may he mentioned as follows:

1. It was objected that the Circuit Court erred in allowing the complainant to amend her bill by adding a new specification of cruelty after the cause had beeu set down for hearing on the pleadings. ■ Held, that it had the power to do so, and that its discretion was properly exercised in this case.

2. This amendment was claimed to be ineffectual because the bill was not resworn after the amendment. Upon this point the Court was of opinion that all bills in divorce cases should be r'esworn after amendment in order to negative collusion between the parties; but as the change added in this case was sworn to in the petition asking leave to amend, and its nature was such as to preclude the idea of collusion, it must be held sufficient.

3. The evidence of defendant’s" physician was taken in the case in order to show that at a certain time defendant had a certain disease. Defendant objected to this evidence, and the Court suppressed it. The statute which precludes physicians from testifying to what has been disclosed to them in order that they may prescribe for their patients applies not merely to communications made to them, but to knowledge acquired in any manner for that purpose.

4. As to what shall constitute such extreme cruelty as shall warrant a divorce, the Court was of opinion that the consequences of the alleged cruel conduct upon the marriage relation were to be regarded rather than the actual or possible physical effects of particular acts. If a man, by long continued reprehensible conduct towards his family, accompanied by grossly indeceut and profane language, and with occasional outbursts of" violence, renders a further continuance of the marriage relation unendurable to the wife, it cannot be doubted .that his cruelty has, in respect to the marriage relation, become “ extreme” within the meaning of the law. Such a case the Court thought was made out by the evidence in this case. Decree reversed, and divorce decreed, with costs ‘ of both Courts. Cause remanded, with directions to the Circuit Court to order a reference on the question of the proper amount of alimony to be paid to the complainant.


author: Campbell, C. J. Cooley, J. Christiancy, J.

text:
    Benoit vs. Auditors of Wayne Co.
    B was elected Treasurer of Wayne County, but the county canvassers awarded a certificate of election to. M, who assumed' the duties of the office. M was subsequently ousted, by judgment of the Court, and B entered upon the discharge of his official duties. M received his salary until he surrendered his office to B. B claimed hie salary from the county for the time he had been deprived of his office by M. Held, that he was not entitled to *uch salary.
    Error to Wayne Circuit.
   Opinion by

Campbell, C. J.

Benoit was sued for not paying over the moneys in his hands as Treasurer of Wayne County. The sum which he retained was an amount claimed to be due to him for his salary, during the pending of proceedings in quo warranto against George Miller, who held the office in fact, but who was decided not to have been lawfully elected.

The case shows that Miller was declared and certified by the county canvassers to have been duly elected, and that he took the legal oath and gave bond and assumed the office, and held it, and performed its duties and received its emoluments, until ousted; and that Benoit was finally, by the judgment of this Court, declared entitled to the office, and has still pending his claim on suggestion of damages under the statute.

The Court below held that Benoit could not claim his salary against the county, when Miller had received it as Treasurer actually holding office in the manner mentioned.

It seems very well settled that as against the person who had kept him out oí office by the intrusion, an action would lie for the injury, under which he was deprived the lawful perquisites which he would have received if in office. Our statute has recognized the right to this redress, and has substituted a suggestion, instead of the old action on the case or the assize. The precise measure of damages it would not be proper for us, on this hearing, to consider. But the right is unquestionable, and is put on the same footing with action for disseizin of lands. See Peit vs. Rousseau, 15 La. An., 239; Segur vs. Cunshau, 10 La. An., 298; Boyter vs. Dodsworth, 6 T. R., 681; U. S. vs. Addison, 6 Wallace, 291; Same vs. Same, 22 Hon. R., 174. In the latter case, the jurisdiction of the Court to try the cause depended upon the amount of money involved in the issue, and it was held that in the quo warranto proceedings the salary received, and receivable, by the defendant, was, for this purpose, a governing consideration.

It cannot be possible that a county can be liable to pay the same salary twice over; and if the present claimant can demand the money, it must be because the payment to Miller was not warranted. And this can only be upon the assumption that the county authorities were bound to know who was lawfully entitled to the fees, or else that they were bound to prevent the defeated party from getting the salary until the suit was decided.

The position of a person who has a right to claim an office, hut has not yet assumed in, is in no sense an incumbency. The King vs. Swyce, 10 B. & C., 486. Under our statutes, the party, however well entitled, loses his right, unless he files his oath and bonds. C. L., § 475. We held in People vs. Mayworm, 5 Mich. R., 146, that a person who had been deprived of his evidences of title by the granting of a certificate to some one else, was not compelled to file his oath and bond until judgment in his favor, because no one was obliged to recognize him as against the one holding the certificate. If, however, the county authorities were compelled ¿o look behind the papers, there could be no reason for any such exception. And nothing but actual incumbency can make a person a legal officer, however much he may be entitled to obtain the office. And, certainly, when a person stands of record as ousted, and demanding the-ouster of another, whom he alleges to be wrongfully in office, as a means of getting his own rights, it could not be claimed', that the acts of the relator would be in any sense official acts. The only valid proceedings in the name of office must be those of the actual incumbent. And his acts are valid to all purposes, except, possibly, his own protection from liability as an--wrong-doer.

The general doctrine in regard to de facto officers is so familiar that no citations are necessary tó show it.

If Courts themselves, when called on for affirmative action in aid of an officer, cannot inquire into his title, it cannot be reasonable to allow us to expect other bodies, or persons to do so.

It was held in Smith vs. Mayor of N. Y, 37 N. Y., 518, that no claim could be brought for salary or perquisites against a. municipal corporation, covering any period when the claimant, was not actually in office; and this was put on the ground that these are the reward of express or implied services, and therefore can not belong to one who conld not lawfully perform. those services, although wrongly hindered from occupying a position in which he might render them. And in the previous-case of Connor vs. Mayor of N. Y., 5 N. Y., 235, the same doctrine as to the nature of official salaries and fees was laid down. Nor does there seem any good reason for doubting this rule. If an office were a contract relation, it is shown by the reasoning that it would not be competent to legislate so as to impair its tenure or its value. Tet it has always been held competent to abolish or modify tenures and profits at the will of the Legislature, when not restrained by the Constitution, and there can be no consistent theory, except that which regards official rewards, as the recompense for actual or implied official work. Nor would it be possible, in most cases, to have the work done without some certainty of pay for it. An officer is not to be expected to work for nothing, so long as it may please his enemies to assume to doubt his title. There is very good reason why he should be compelled to respond to the rightful claimant, who would have been glad to fulfil the conditions. But the laws assume that the laborer is worthy of his hire, and the person who is required to be recognized, for the time being, as the legal incumbent for the purpose of doing the work, should be recognized for the purpose of remuneration also, so far as those are concerned with whom he deals officially, and who have no personal interest in the contest for the office.

The principle involved in the case cannot differ in different offices. It so happened that this is a contest concerning a salary which is payable to himself by the incumbent, as custodian of the county funds, but subject to a settlement of accounts. If, instead of the treasurership, the clerkship or sheriffalty had been in dispute, and the officer dr facto had been compelled to resort to a court to compel payment of his salary, the authorities are uniform that the title to the office could not be tried in that collateral way. The people of the State must be parties to such á controversy.

There is a distinction taken by many authorities between an office held de. facto under color of title, and one usurped without any legal pretext. This distinction is hinted at in Plymouth vs. Painter, 17 Conn., 585, and Wilcox vs. Smith, 5 Wend. R., 231, and is recognized in other cases. .A somewhat similar question was discussed, but not decided, in Carleton vs. People, 10 Mich. R., 250, where there was a difference of opinion as to an incumbency when' the time had not arrived for the full operation of a statute. There is certainly some reason for distinguishing between barefaced usurpation and the assumption of office under the paper title prescribed by statute.

In the case of Stadler vs. City of Detroit, 13 Mich. R., 346, the only question argued or considered was, whether Stadler’s term of office had been ended, and nothing was said, by any one, concerning the right of action in case he remained entitled to the office. That right was conceded, and of course such » decision could be no precedent, except upon the point actually considered and decided. But it may be doubted, at least, whether that case presented any such difficulties as arise here. Stadler, being in office for two years under a State statute, the Council, instead of removing him, which might have been done, assumed that the office was vacant at. the end of one year, without removal, and appointed Mahoney, upon the theory that no one was in office at all. They acted under a mistake of law, which vitiated Mahoney’s appointment on its face; and Stadler remained an officer de facto as well as de jure, there being no ouster in the proper sense of the term. And, moreover, the body he sued was the very body that did the alleged wrong, while the corporation representing the county has nothing whatever to do with the appointment or installation of county officers. It is enough, however, to say, that as the question of liability to suit was not raised in that ease, it does not preclude its decision here as an original question, and it is not important whether the two cases differ in the principle involved upon this point.

We think the decision below was correct, and that it should be affirmed, with costs.

Cooley, J.

Was Miller entitled to claim and demand of the auditors the salary which they allowed him? I think not. The only ground on which he could claim it was, that he had occupied the office and performed its duties, and was an officer defacto. Now, the acts of an officer de facto are unquestionably good for many purposes, but for many others he is regarded in the law as a mere trespasser. Whether they are valid or void, depends on the purpose for which they are considered. The public, who have an interest in the continuous discharge of official duty, and whose necessities cannot wait the slow process of a litigation to try the title, havé a right to treat'as valid the official acts’ of the incumbent, with whom alone, under the circumstances, they can transact business.

But the party himself who has usurped a public office is never allowed to build úp rights, or tó shield himself from responsibility oh no better basis fhah his-usurpation.

As is said by Parsons, Ch. J. in Fowler vs. Beebe, 9 Mass., 234, if an actibh should be commenced ágaiiist Obe claiming to be sheriff, for an act which he does not justify but as sheriff, or if an information should be filed against him, in either case he would be a party, and his title to the office might be tried. The same principle is stated by Bronson, Ch. J., in People vs. Hopson 1 Denio, 579, who adds that “ clearly he cannot recover fees, or set up any right of property, on the ground that he is an officer da facto, unless he is also an officer da jure.’’ And Heath, J., in Lightly vs. Clouston, 1 Taunt., 113, referring, it is supposed, to Howard vs. Wood, 2 Lev., 245, says that “ so long back as the time of Charles the Second.it was held that the title to an office, under an adverse possession, might be tried in an action for the fees of the office had and received.” And see Weeks vs. Ellis, 2 Barb., 325. It was very strongly intimated in People vs. Hopson, Supra, that if one resists an officer de facto, and the' latter prosecutes him for the assault, it would be a good answer to the action that he was not a legal officer, but a wrong-doer; for when one man attempts to exercise dominion over the person or property of another, it becomes him to see that he has an unquestionable title.

The doctrine on this general subject was very clearly a,nd fully stated' by Cowen, J., in Greene vs. Burke, 23 Wend., 502. But we need not pursue this distinction on principle. It is very sensibly settled by a series of cases in Pennsylvania, where most of the authorities have been examined. The result was ’Stated in Riddle vs. Bedford, 7 Serg. and, Rawle, 386, 392. “ The sound distinction,” says Duncan, J., “ is, that the office is void as to the officer himself, but valid as to strangers.” The same distinction has since been recognized there in several cases. Parker vs. Luffborough, 10 Serg. and Rawle, 249; Keyser vs. McKissan, 2 Rawle, 139, 140.

It is evident that Miller had not a shadow of claim to compensation for services- rendered the county during his usurpation, and that he could not have enforced payment by law. When the auditors paid him, they did so without legal compulsion, and without necessity, and the same rule of policy which precluded Miller’s right to the office being tried in a collateral proceeding to which he was a stranger, will also preclude this settlement between Miller and the auditors being used to the prejudice of the plaintiff, who was not, and, from the nature of the ease, could not have been, a party to it.

The general language employed in the eases, that the right to fees grows out of the rendition of the services, is, on all logical rules, to be understood with reference to the particular facts then before the Court, and cannot be applied universally, as claimed by the defence, without coming in conflict with the decision of this court in Stadler vs. Detroit, 13 Mich., 347. We there held that a municipal corporation which had excluded a Salaried officer from the performance of his duties, was bound to pay him tbe salary." We are still, I beli«ve, satisfied with this decision. That the right to fees does not necessarily depend upon the performance of the official duties, is also declared in Glascock vs. Lyons, 20 Ind., 3.

The only case directly in point is that of People vs. Smythe, 28 Cal., 21, and there it was held that the lawfully-elected officer, who had been excluded by one coming in by color of title, might, after recovery of the office, maintain an action against the county for his salary, during the usurpation, notwithstanding it had been previously paid to the usurper. This decision appears to me to be sustainable on the soundest reasons of public policy.

It is said that the plaintiff has' a complete remedy by recovery of damages against Miller. If I am correct in what I have already said, this is no answer to the present action. If one has a remedy against two persons for the same wrong, his action aeainst one cannot be defeated by showing that he might have sued the other.

If the proposition is correct, that he who is rightfully entitled to an office has a property in it, though not, perhaps, strictly in the commercial sense of that term, then we are not able to perceive how a mere intruder, who may perform the duties for a time, can in good conscience retain the fees, etc., for such service. If he could, under such circumstances, be permitted to retain such fees, it would be on the ground that they were a remuneration for his labor, etc.; but that would not justify the retention of any sum over such mere remuneration, if justified to that amount. How could the case be distinguished from one where A. B. may, without contract or request, express or implied, perform ordinary labor for C. D. ? In the latter, it is well settled'there is no right of action accrues to the laborer. How could there be in the former? If not, upon what principle can the labor be set up as a defence to an action for money received to which the plaintiff was entitled ?

This case, it will be seen, is entirely inconsistent with the deduction the plaintiff’s (below) draw from the cases in 5th and 371h New York, but it is in harmony with all those in which it has been held that salary and fees are incident to the title, and not to the usurpation and colorable possession of an office. People vs. Tinman, 30 Barb., 195, and cases before cited.

I thinlf the weight, both of reason and authority, is with the defendant, and that the judgment should be reversed.

Christiancy, J.

I concur in the result in this case with my brother Campbell. But had it affirmatively and satisfactorily appeared that the auditors had actually and voluntarily paid over the salary to Miller, after the judgment against him in the quo warranto proceedings, instead of merely allowing his account for so much retained by him on account of his salary, T should have concurred with my brother Cooley in his view of the ease.


author: Campbell, C. J.

text:
    Emlaw vs. Emlaw.
    Defendant in divorce suit, charged with adultery, has a right to trial by jury.
    Deposition of witness ruled out, where witness sworn regularly aDd testifies in cause.
    Appeal from Muskegon in Chancery — Divorce.
   Opinion by

Campbell, C. J.

Where a party charged with adultery desires a trial by jury it should he granted.

Where a deposition was taken in another cause de bene esse before issue joined in this, on'account of the sickness of a witness, and it was stipulated it might be read in this cause with the same force and effect as if taken and returned in this Cause ; but the witness recovered, and was afterwards sworn regularly in this cause, and the-deposition taken de bene esse was held incompetent and ruled out.

Positive testimony of a witness who is manifestly falsifying, and whose statements are intrinsically incredible, was disregarded, without reference to the impeachment of the witness, which was, nevertheless, complete; and it was considered by the Court that, even with the suppressed deposition, there was nothing shown in the cause to justify an inference of adultery.

Decree reversed and bill dismissed.


text:
    Climie vs. Odell.
    Error to Calhoun.
   Opinion by

Campbell, C. J.

Where time to appeal from a Justice has been extended by stipulation it is as valid as if allowed by the Circuit Court, and a dismissal of it as not in time is erroneous.


author: Christiancy, J.

text:
    Foster vs. Alden et. al.

    A justice of the peace has no authority to amend his record after rendition of judgment.
    Error to Calhoun Circuit.
   Opiniouby

Christiancy, J.

Defendant below undertook to justify the taking of property under an execution issued by a Justice on a judgment in an attachment suit, in which, one Parker was plaintiff and Warren T. Johnson, defendant. The docket was offered in evidence, but it showed on its face that the name of. the defendant had originally been written “William” instead of- Warren,’’ and that the former had been cancelled by drawing.a pen through it, and the latter written over it. The record showed that the defendant did not appear in this case.— Process was issued against William F. Johnson, and all the proceedings and the entry of the judgment were by that name. — ■ The alteration was made by the Justice some two or three weeks alter the entry of the judgment, and after the execution had been issued, but it was made by the Justice with the consent of Johnson, who suggested the alteration, stating that his name was Warren and not William, the plaintiff being present when it was done. The reading of the docket in evidence was objected to,.and it was excluded by the eourt, which decision was assigned as error.

Held, That the ruling was correct. After the rendering and recording of the judgment the jurisdiction of the justice to make an amendment had ceased. A justice’s court is not like a court of record, having stated terms. The amendment was made out of court and the consent of Johnson could give no jurisdiction.

Judgment affirmed with costs.


text:
    Dodge & Van Dyke vs. Samuel S. Bevil.
    A written confesssion ofjudgment is essential to give a Justice jurisdiction to enter judgment by confession, and when the files show that tho paper signed by the defendant was nota confession, the recital in the docketof such confession is a mere nullity The files are a• much original evidence as the docket.
    Case made from Lapeer Circuit.
   Opinion by

Cooley, J.

The action was upon a judgment purporting to have been rendered by a Justice of the Peace upon a written confession of the defendant, and without service of any process. 'The defendant denied that he ever signed any such confession. The Justice’s files were put in evidence, and the only paper signed by the defendant was a promissory note, payable to the plaintiffs, and bearing date the same day as the judgment. The Circuit. Court. held the docket conclusive, and gave judgment for the plaintiff.

Held, that the files were as much original evidence as the ^docket; that a written confession of judgment was essential to give the Justice jurisdiction; and that when the files show .that the paper signed by the defendant was not a confession of judgment, the recital of such confession in the docket is a mere nullity.

Judgment reversed.


author:
      Opinion by
     Graves, J.

text:
    Joseph D. Clark vs. Richard Gage.
    A description of premises in a complaint, in proceedings for the recovery of land, before a Circuit Court Commissioner, as “ a farm in the town of QuinCy, in said county, lately occupied by complainant, being the Ramo farm mentioned in the writing executed between the said Clark and complainant, and dated November 24,1866, by which complainant let the said farm to said Clark,” is insufficient.
    Error to Branch Circuit.
   Opinion by

Graves, J.

This was a proceeding before a Circuit Court Commissioner to recover possession of land under chapter 123 of the Revised Statutes for 1846. Complainant Gage recovered judgment, and Clark appealed to the Circuit Court, where Gage again recovered judgment, and Clark brought the case by writ of error to this Court. It is claimed that the complaint did not contain a sufficient description of the premises to warrant a judgment alter objection on that ground. The objection was taken before the Court, and also before the Court below, and was overruled in both.

Held, that the description must be so definite and intelligible as prima facie to designate and identify the premises. The writ of restitution must follow the judgment, which must follow the complaint, and neither the Court nor the Court below is authorized to direct the officers in this regard in any other manner than by means ot the writ; nor could they exercise that control over his action which Courts have sometimes exercised in ejectment in case of indefinite description in the writ of possession. The complaint is of the nature of a pleading, and the degree of certainty required is measured by the rules o^ pleading rather than those governing contracts.

The description was “ a farm in the town of Quincy, in said county, lately occupied by complainant; being the same farm mentioned in the writing executed between the said Clark and complainant, and dated November 24, 1866, by which complainant let the said farm to said Clark.”

Held, that the description was insufficient, and the judgment below was reversed, with costs.


author: Graves J.

text:
    In the matter of John Hicks, and Joshua Hicks.
    The decision of a Circuit Court on habeas corpus is re viewable by the Supreme Court.
    A writ of error is authorized upon a final judgment or determination of a Court of record in a proceeding allowed by the common law. The writ of habeas corpus is such a proceeding •
    Motion to dismiss a writ of error from Ionia Circuit.
   Opinion by

Graves J.

In October last, the Fulton Iron and Engine Works, commenced suit against Louis, John, and Joshua Hicks, in the Circuit Court for the county of Ionia, by capias, and upon such writ, John and Joshua Hicks, were arrested and confined in the jail of Ionia county for want of bail. A short time thereafter they were taken before the court in which the capias was returned by habeas corpus from the same court, and a hearing was there had upon the return, upon the legality of their detention. Upon that hearing, the Circuit Court discharged the parties so brought up from their imprisonment under the capius, and the plaintiff in the last named writ, thereupon sued out a writ of error for the purpose of having the judgment of the Circuit Court, on the hearing in the habeas corpius proceeding, reviewed in the Supreme Court.

The parties so discharged, moved to dismiss the writ of error upon several grounds:

1st.. They insist that the decision of the court below on habeas corpus, and the discharge of the parties, is final, and not reviewable in any form. The ground taken is untenable. The constitution has vested the Supreme Court, with a general superintending control over all inferior courts, and has clothed it with power to issue writs of error, habeas corpus, and other original remedial writs. It has undoubted authority to review, by some mode, a decision on habeas corpus, when made by a Circuit Court. This power to review cannot depend upon the nature of the decision in the court below.

2. -It is urged, that a writ of error is altogether on the ground, that no judgment is pronounced in the proceedings by habeas corpus. A writ of error is authorized upon a final judgment, or determination of a court of record, in a proceeding allowed by the common law. The writ of habeas corpus is such a proceeding, and it contemplates a regular hearing upon an issue of law,'or fact, exhibited in writing. Upon this issue, the court pronounces judgment, which the law requires to be formally entered of record. This judgment is final, and conclu•sive, since it puts an end to it altogether. It is not necessary that a judgment should be a final determination of the right of the parties, to authorize a writ of error. It is enough if it determine the particular suit. The final decision of habeas corpus, in the Circuit Cpurt, is such a determination as may give the right to a writ of error, to review the rulings there made, although it may not be the only or preferable remedy, and may not be at all serviceable in some cases, or sufficiently so in others.

3. It is urged that the petitioners in the habeas corpus, having been discharged from custody, they cannot be put in custody again for the same cause, by this court; or any other, under the old capias, and that the proceedings, by writ of error, must therefore be totally ineffectual. This court will not anticipate, on this motion, those considerations which belong to the merits. The determination in the Circuit Court appears to have been of a kind, reviewable on error, but the return is not before the court for investigation. When that return is before the Court, and not sooner, the court may form an opinion respecting the extent and efficiency of the remedy, which the plaintiffs in error have chosen. For the present, it is sufficient that the case appears to be one in which a writ of error is allowable. But whether the remedy elected, will, or will not, prove beneficial to the plaintiffs in error, is a question which ought not to influence the result of the motion, which is therefore denied with costs.


author: Cooley, J. Campbell, J.

text:
    Ballou vs. O’Brien.
    In 1819, by the treaty of Saginaw, tlie Chippewa Indians reserved large 'tracts of land. Section 16 was included. By the treaty of Detroit in 1837, these reservations, excepting one small one, were ceded by the Chippewas to the United States — the Government to sell the lands and pay the net proceeds to the Indians. In 1855, “ all the lands within the State heretofore owned by them as reservations, and whether held in trust for them by the United States or otherwise,” were ceded to the United States. July 25, 1836, the United States Government offered to the Legislature of Michigan, section 16 of every township of the publie lands, providing that “ where such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to the State for the use of schools.” This offer was accepted December 15th, 1836. JBeld, that though the Stats acquired no right to the sixteenth section, December 15th, 1836, yet that such right did pass to the State in 1S55.
    Whether the Commissioner of the State Land Office has authority in the absence of any statute, to appoint an agent and confer upon him power to sieze timber, lumber, &c., which have beencut upon lands belonging|to the Sate, and to sell the same at private sale. — Query .*

      Case mo.de from Bay Circuit,

   Opinion by

Cooley, J.

By the treaty of 1819, the Chippawa nation ceded to the United States a large 'extent of territory, reserving fifteen tracts of land which were specified, and also one tract of 40,000 acres on the west side of the Saginaw river, to be - thereafter located (7 St-at. at Large, 203.) This tract was located in 1820.

By the treaty of Detroit in 1837, these reservations — excepting one small one — were ceded by the Chippewa nation to the United States; the United States at the same time agreeing to “pay to the said Indians in consideration of the lands above ceded, the net proceeds of the sales thereof, after deducting the expense of survey and sale,” together with the incidental expenses of the treaty. The lands were to be surveyed in the usual way, and offered for sale in the same manner as other public lands, (7 Stat. at Large, 528.) They were actually surveyed in the year 1843 and put upon the market.

This treaty remained in force until the treaty of August 2 1855, by which the Chippewas ceded to the United States, all the lands within the State of Michigan heretofore owned by them as reservations, and whether held in trust for them by the United States or otherwise.”

The State of Michigan was admitted to the Union on the acceptance of certain propositions made by the act of Congress of June 23, 1836, under one of which the proper State officers have assumed that the land in question became the.property of the State. The act of Congress and the acceptance thereof are published with the Compiled Laws, p. 37.

In the winter of 1866-7, one Daniel Burns went upon Section Sixteen, in township fourteen north, of range four east» which was within the limits of the forty thousand acre reservation, and cut a quantity of pine logs. It does not appear that the land upon which the logs were cut had ever been patented or sold by the United States to any individual purchaser, or preempted, .or allowed to be taken as a homestead. In February, 1867, the Commissioner of the State Land Office appointed one Edward L. Briggs as agent of the State Land Office, to enter upon any lands belonging to the State of Michigan, or on any lands for which the State is acting as trustee, and seize and report the seizure of any timber or property unlawfully cut upon any of said lands, and to seize and report the seizure of any timber or lumber or shingles manufactured from any timber so unlawfully cut or taken from any of said lands, where the same shall be found within the limits of this State, and can be identified,” and by the power of attorney given him by the Commissioner it was made his duty immediately to report the land upon which a trespass had been committed, the quantity of timber cut upon the same and its probable value, and to dispose of the same' at public or private sale, as he should deem best, and also to settle and adjust all trespasses, reporting in each case the amount secured by the settlement. Acting under this pr>wer of attorney, the agent seized upon the logs so cut by Burns, and sold them at private sale to the plaintiff for the sum of fifteen hundred dollars, which was paid to him by the plaintiff, and was nearly or quite the full cash value of the logs. Burns, however, had previously sold the logs to the defendants, O’Brien and Walsh) who bought in good faith, and this suit was an action of replevin therefor, and was brought without any previous demand.

The defendants insist:

1st. That the land upon which the trespass was committed was not the property of the State of Michigan as primary school lands, but was the property of the United States.

2d. That conceding the lands to belong to the State, the Commissioner of the State Land Office had no authority to appoint an agent with the powers he attempted to confer upon Briggs, and consequently the seizure and sale of the logs were void, and the plaintiff acquired no title thereto.

3d. That even if the sale of the logs to the plaintiff was valid, he could not lawfully replevy the same without first making demand therefor.

It does not occur to us, when we regard the legislation of Congress bearing on the subject, and the uniform policy of the United States in the endowment of the public schools, that there would be much plausibility in any adverse claim that could now be set up against the State. The objection is based upon the first proposition made to Michigan by the United States, by the act of June 23, 1836, and which proposed, “ That section numbered sixteen in every township of the public lands, and where such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to the State for the use of schools.”- The argument is that all the lands which by the treaty of Saginaw Wire reserved to the Indians, were thereby “ disposed of,” so that the grant made to the State in'1836 could not possibly convey them, and it is further argued that the subsequent treaties, which being in pari materia, must be considered with the act of 1836 in order to arrive at its true interpretation, all tend to show that the United States have-not regarded any portion of the lands lying within these reservations as falling within the proposition of the act of 1836 above quoted.

The lands in question did not pass from the United States by the mere act of the State in accepting the propositions made to it by the act of Congress referred to. The lands at that time were reserved to the Indians, and it was not certain that the Indian title thereto would ever be extinguished. The Federal Government was under no obligation to the State to extinguish it, and although, looking at the general policy of the Government, it was highly probable that this would be done, yet the period of any attempt in that direction was wholly uncertain, and when it came to be made it was quite possible that such conditions might be insisted upon by the Indians as would preclude the State acquiring any claim.

The case actually shows that such conditions were insisted Upon, and also that they were submitted to by the Government. The treaty of 1837 transferred the Indian title to the United States, but in trust only; and the Government undertook to sell the lands and account to the Indians for the proceeds. This treaty appears to have applied to the sixteenth section as much as to any o'thers. It is very clear, we think, that while this treaty remained in force the State acquired no right to the several sections sixteen which were surveyed under it. But' this treaty was superceded by that of 1855, by which the trust interest of the Indians was forever extinguished, and the lands embraced by the reservations became a part of the general domain.

N ow there has been a uniform policy on the part of the genera] government, that every sixteenth section of the whole public domain should pass to the State in which it was situated for the use of schools. Wherever, by reason of previous grant or other disposition this has become impracticable, other lands contiguous thereto are substituted. Those lands, however, in which the Indians have a possessory title do not fall within the influence of this policy until that title is extinguished, but as soon as the extinguishment takes place the policy attaches. Until 1855, the State neither acquired a right to the lands in question nor did the proposition of 1836 we have cited oblige the general government to convey other lands in lieu thereof. But there can be no serious question, we think, that the right passed to the State in 1855, unless there is something in the terms of the proposition of 1836 which would confine its operation to lauds which were in such condition in regard to title, that they might pass immediately when the proposition was accepted.

The grant by an individual must generally operate at once if it ever does, but the grant of a sovereignty is governed by different principles, and must have operation according to its intent, whatever that may be. It may have a continuous operation, so as to transfer different parcels of land, from time to time, as the sovereignty may become vested with title thereto, if such appear to be its purpose. And such, we think, was clearly the purpose of the proposition of 1836. Its design was that every section numbered sixteen of the public domain, whether then constituting a part thereof or becoming such afterwards by extinguishment of the Indian title, should be granted to the State as an educational fund. The words employed in the proposition aptly indicate an intent that it should have continuous operations, and we have seen already that the general policy of the Government was in accord with this apparent purpose- We have therefore no difficulty with the first question.

We say nothing of the very brond powers which the Commissioner attempted to confer upon his agent in the present case; but looking only at what was done here — the seizure and sale — we are of opinion that if the Commissioner was the proper officer to make any appointment, the power in this instance was lawfully conferred, and the record indicates that it was very properly exercised.

And whether the appointment should emanate from, the Governor or the Commissioner we do not feel called upon, in the case before us, to decide. We do not understand that the Governor, or any proper State authority, questions the validity of the agent’s acts. The State has been paid for the timber, and does not repudiate the transaction. If the Commissioner were a mere executive agent of the Governor — as the proper land officers of the United States are of the President — we should have no doubt that his act should be regarded as the act of his executive superior. See Stephenson vs. Little, 10 Mich., 440. And although he is an independent, constitutional officer, acting in a sphere of his own, we think we may well infer, in a matter pertaining to the public lands, where, if the Governor has authority, it would be very proper to exercise through or by the assistance of this officer, that he has done so here, and given his assent to what has taken place. We think this a very proper inference to make on behalf ,of correctness of action in a co-ordinate department of the Government.

The third objection made by the defence, that the property could not be replevied without previous demand, we consider settled against the defence by Truedo vs. Anderson, 10 Mich., 357.

The judgment for the plaintiff must be affirmed, with csts.

Campbell, J.

I think that under the decision in Cooper vs. Roberts the title 'of the State would have vested in Sec. 16, if the Indian title had been extinguished in the ordinary way, and a survey had been completed so as to designate the location- The grant, which until then was ambulatory, would have attached and made the transfer complete.

But if the grant did not attach when the land was designated, then there is no principle which can make it attach after wards, except by way of estoppel. It could not mark any subsequent purchase by the grantor in any other way, and nothing but a plain and absolute warranty could make a later title inure to satisfy it. No such warranty was ever given. The act admitting Michigan into the Union did not declare that the State should have Sec. 16 at all events, but only in case it was not otherwise disposed of — which disposition, if existing before the grant could take effect on any particular section, would defeat the State title, and leave the deficiency to be made up by equivalent lands, as provided for by the statute.

In this case, the treaty whicfi extinguished the Indian title in the reserve, expressly appropriated these lands to a use inconsistent with any interest in the State. It cannot be questioned that a treaty is the supreme law, and superceded any conflicting claims The land was put into the hands of the Government upon a definite trust, by the treaty of 1837, and when the survey was made it was required to carry out that trust. The Government, as a trustee, could not lawfully have conveyed this section to the State, if it had been demanded; and the title was as distinct from a proprietary interest as if the trustee had been a citizen instead of the nation. The trust, was hostile and paramount to any State claim, and the land was effectually “ disposed of,” within the meaning of the act of admission. Had the Government performed its pledged promise, the land would have been sold many years ago.

In a subsequent settlement with the Indians, in 1855, the United States Government, for a new consideration, purchased whatever interest they had left under trust, and thus acquired title in its own right. This is not the title to which the original reservation was to attach, and I think it would require a new arrangement to give the State any interest in these lands. If lands which have been once disposed of, vest in the State whenever the United States happen to repurchase them, the result will be very different from anything contemplated when the enabling act containing-the appropriation was passed. It never was supposed that section sixteen was likely to be better than any other; and the State being entitled to the same quantity, there is no reason why the grant should be extended beyond its plain terms.

I think the judgment erroneous on this ground. I express no opinion on the other question.


author: Christianoy, J.

text:
    Shaw vs. Hoffman.
    A tenant for years is authorized, under §4717, C. X., to recover treble damages against his landlord for a wrongful entry, Ac.
    A entered and tore down the bam oí B. In an action for the damages the plaintiff gave evidence tending to show what price he had paid for boarding his horses after the destruction of the barn. The declaration alleged no special damages. A motion was made to strike out the testimony^ but it was overruled. Held, that such ruling was erroneous.
    Error to Wayne Circuit.
   Opinion by

Christianoy, J.

The first question presented is whether the Statute, C. L.., § 4717, authorizes a mere tenant for years to recover treble damages against his landlord far the wrongful and forcible entry, etc., dr whether ,the remedy is intended to be confined to the owner of a freehold interest. This section is substantially copied from the New York statui.es, omitting only the word “ disseized.” Under the New York statutes, it is well settled that none but the- owner of the freehold was entitled to the remedy. But considering the nature of the injury to be remedied, there seems to be the same grounds of policy and justice for giving the same remedy to a tenant for years, or any other term less than a freeholder, and the term “ disseized” seems purposely omitted from our statute, and the remainder of the statute will apply with sufficient accuracy to the lessee for a term of years, and the statute should be construed to be applicable to such oases, as well as to freehold estates.

The next question arises on a motion to strike out the testimony of plaintiff showing what price he paid for the hoarding of his horses after defendant had entered and torn down the barn where they had been kept. No reason for the motion was'given and it is urged that the judgment cannot be reversed for denying it.

Held, that when it appears that the evidence moved to be .•Stricken out, could not, in any view of the case, be pertinent to the issue, the reasons for the motion must be sufficiently apparent, -and cannot be overruled without calling upon counsel to state the reasons for the motion, and the neglect of the counsel to do so under such a call. The ground of error relied upon is, that no special damages are alleged, and the expense of boarding the horses at another stable are not the necessary consequence of the trespass complained of, and should have been specially alleged. This objection is well taken. The declaration gives no notice of such a claim. It mentions no horses, and states no purpose for which the barn was used, nor any business of plaintiff connected -therewith. The expense of boarding horses is not generallythe necessary result of ejecting from a barn, and whether they become in any case the necessary result, must depend upon other .facts not stated in the ddblaration.

Judgment below reversed, and a new trial ordered.


text:
    Kempsey vs. McGinness et al.

    1. Where the mental capacity of a testator la questioned, opinions of physicians are admissible though not founded upon their own personal observation of the facts of the particular case. Such opinion, however, must be predicated upon the hypothesis that the statement offtl* leged facts is true; and as it is a question for the jury to determine whether the facts are as claimed, if they find that any assumed fact, essential to the opinion expressed, does not tit ist, the opinion has no force and should be rejected by the jury.
    2. The question as to what extent and in what manner the mind of the testator was affected by the disease, or as to what was his mental condition is one of fact. But the question as to what degree of mental capacity is necessary to enable a testator to make a valid will is one of law.
    3. A witness was asked, whether the testator was “ capable of planning and executing such a paper as is here offered as a will” — whether he'was in a mental and physical condition to transact any business requiring an exercise of the judgment, the reasoning faculties, and ft consecutive continuation of thought. JB.eld, unobjectionable.
    4. Order of proof: Proponents should introduce subscribing witness, prove execution of will and make formal or prima facia proof of testator’s soundness of mind. Contestants then go fully into their case lo show testator’s incompetency. Proponents then reply, going fully into the question of testator’s competency.
    Error to Kalamazoo Circuit.
   Opinion by

Christianoy, J.

The question in this case was upon the validity of a paper claimed hy the appellees — the proponents — as the last will and testament of Thomas Patterson, deceased. The main ground upon which its validity was assailed was, that at the time it was drawn and executed the testator was not-of sound and disposing mind and memory, but that his mental faculties were so far enfeebled and overcome hy disease as to render him incapable of properly understanding his relations to others, their relative claims upon his bounty, the particulars of his property, and the nature of the dispositions made by the will- It was not claimed that he had ever exhibited any. symptoms of insanity, or any weakness of intellect,until after he was attacked with the disease of which he died, which was pneumonia or pleuro-pneumonia. This attack was some two days before the will was made, and he died on the night of the succeeding day. The will was drawn up by one Clark, in the room and in the presence of the testator, under such directions and instructions as the testator gave him at the time, which occupied from 9 to 11 o’clock A. M. of Friday. When it was executed, it was duly witnessed by Clark and bY Dr. Abbott, a physician who had been that morning called to see him ; and who saw him for.the first time during his sickness when called in to witness the execution, but remained with him a large part of the day. Another physician, Dr. Mottram, was called about the middle of the next day. These wei’e the only physicians who saw him during his sickness. They, and several unprofessional witnesses, testified fully, from their parsonal observation, as to his physical and mental condition at the respective times when they saw him, giving their opinions as to the condition or state of his mental powers, and the facts upon which their opinions were founded. No controversy arises upon the questions touching mental capacity put to any of the' witnesses testifying from their personal observation alone. But contestants offered the opinions of several physicians, who had not seen the testator during his illness, and the main questions arise upon the proper mode of conducting such an examination.

Held, 1, That it is well settled, upon authority, that upon questions of this kind the opinions of physicians are admissible, though not founded upon their own personal observation of the facts ot the particular ease; but the facts upon which the opinion is founded must be’’ stated, and the jury be left to determine whether the facts stated, as well. as the opinion based upon them, are true or false. .No question can be put to the witness which calls upon, or allows him to decide upon, the truth or falsehood of any evidence in . the case. If, therefore, there be any conflict as to such lacts, the witness; though he has heard the testimony, cannot be asked to base his opinion upon that testimony, upon the hypothesis of its truth, because, to reach his conclusion, he must necessarily pass upon the credibility of the witnesses and the weight of the evidence. In such case, the only proper mode is to state and enumerate, in the question put, the facts to be assumed, and the witness is to answer upon the assumption ■ that such facts actually existed, without attempting to decide the question of their actual- existence as facts. The jury should know just what facts are assumed, and enter into the collection or state of facts on which the witnesses’ opinions are based; and if they find that any suqh assumed fact, essential to the opinion expressed, does not, exist, the opinion has no force, and should be rejected by the jury. If one or more witnesses have stated, in the presence or hearing of the physioian, the facts observed, and the physician is asked his opinion, upon the hypothesis that all the facts so stated are true, the jury, having heard all the evidence, know what facts are assumed as the basis of his opinion. But if he has not heard all the testimony of such witnesses, and it does not definitely appear what facts he has heard, the jury cannot know upon what state of facts his opinion is based, nor whether his opinion would have been the same had he heard the whole evidence, and his opinion cannot safely be received.

Held, 2, That the question as to what extent, and in what manner, the mind of the testator was affected by the disease, or as to what was his mental condition, is one of fact. But the question as to what degree of mental capacity is necessary to enable a testator to make a valid will, is one of law, with which witnesses have nothing to do, and upon which" their opinion is immaterial, and they cannot be allowed, by their evidence, to fix the legal standard of testamentary capacity. The proper way is to put questions calling only for the opinion of the witness as to what the real state of the testator’s mind was. The form of questions put to the witnesses for their opinion in Beaubien vs. Cicott, 12 Mich., 459, is ' correct in principle, and covers the objection under consideration. The questions to whiiph objection is made were, whether, upon the assumption of facts stated, the testator was “ of sound and disposing mind and memory, so as to be able to transact business from 9 till 11 o’clock” on the day in question; and whether he “ was in a physical and mental condition to make a will.” These questions were both objectionable, upon the grounds above stated.

Held, 3, That two other questions put by contestants, upon said assumption of facts, and overruled, were not liable to such objections, viz.: 1st. Whether the testator was “ capable of planning and executing such a paper as is here offered as his will.” 2. Whether he was “ in a mental and physical condition to transact any business requiring an exercise of the judgment, the reasoning faculties, and a consecutive continuation of thought.’’

Held, 4. That the order of proof adopted on phe trial was correct, viz.: The proponents introduced the subscribing witnesses, proved the execution of the will, and made the formal or prima facie proof of' the testator’s soundness of mind, without going into the particulars of the testator’s .sickness, and rested. The contestants then went fully into their case to show the testator’s mental condition and incompeteney, and, after they had rested, the proponents offered evidence in reply, and went fully into the question of the competency of ..the testator. In this class of cases, and upon the question of mental soundness after aprima fació case has been established, the case stands the same for all purposes connected with the order of proof on that question, as if the burden of proof rested throughout on the contestants to show mental incapacity.

The testimony as to the facts of testator’s sickness and symptoms, introduced by proponents, differed essentially from that of the contestants, and each asked their experts questions upon the assumption that the facts were as testified to by their own witnesses. After the proponents had finally rested, the contestants recalled one of their own medical witnesses to obtain his opinion as to the testator’s capacity upon the assumption of facts as stated by the proponents’ witnesses.

Held, 5, That there was no error in this course of proceeding. When contestants were giving their evidence in chief, they could not be supposed to anticipate what the testimony of proponents’ witnesses would be as to the facts, and they had a right to meet and disprove the opinions expressed by proponents’ experts, based upon the hypothesis of the existence of the facts afterwards testified to, with opinions to the contrary of other experts.

Judgment below reversed, with costs, and new trial ordered-


author: Christiahoy, J.

text:
    Fisher et. al., vs. Thirkell.
    The owner of premises is not liable for accidents occasioned Jon account of neglect to keep euch premises in iepair,^wbile the same are under the control of a lessee.
    A person to be liable for an accident occasioned on account of negleot to keep certain premises in repair, must have such an interest in the premises as to entitle him to control the same.
    There is no rule er authority requiring a severance of plaintiffs in error in the assignments of error.
    Error to Wayne Circuit.
   Opinion by

Christiahoy, J.

This was an action on the case brought by defendant in error to recover damages received by her falling into a scuttle or bole in the sidewalk on Woodward Avenue, Detroit, in front of a store in the “ Fisher Block,” of which said Fishers were owners, and which they had rented some years béfore. The thimble to the scuttle had been broken, so that in stepping upon the side of the cover it would tip over, and in this way the plaintiff received the injury, about dusk on the evening of December 28,- 1868. The premises were not in the occupation of the Fishers, and never had been occupied by them, but by tenants under them. Some time previous to the accident the store had been leased to a Mr. and Mrs. Hill, and was occupied by them as a drug store up to about the time of, if not after the accident. The defendant, Griffith, on the 18th of December entered into a verbal negotiation for the purchase of the stock of goods,'and had, prior to the accident, delivered the securities for the purchase; but it does not appear that Griffith had any possession or control of the store otherwise than by the mere permission of the Hills. About 6 o’clock, December 28th, and after the accident, Griffith assumed possession of the store. There was testimony as to certain statements of Griffith as to his having legal possession of the store at the time of the accident.

Held, 1. That the statement of Griffith as to his being in possession-was accompanied with such • qualifications as clearly show that it was in law neither an actual nor a legal possession, and that he was mistaken in his legal opinion of what constituted possession.

¡Ü§[ Held, 2. That no kind of possession by Griffith which did not give him the control of the premises as between him and the Hills, could have rendered him responsible for this accident, as no other could impose upon him instead of them the duty of keeping the scuttle in repair, and there is no testimony to show that he had any such possession.

Held, 3. That the original erection having been legal and in a proper and safe condition when the Fishers leased the premises to the Hills, and the injury being received in consequence of the scuttle getting out of repair during the leasing, the Fishers were not liable as owners or otherwise for having failed to keep it in safe condition and repair.

Held, 4. That the objection to the assignment' of errors because it appears to be joint in behalf of both plaintiffs in error ^ while several of the assignments are upon errors which could only affect Griffith and others, are upon grounds which could only affect the Fishers, is not well taken. There is no rule or authority requiring a severance of plaintiffs in error in the assignments of error. They were sued jointly and a joint - judgment recovered. The assignment should be considered joint or several, according to the nature of the error assigned, and as affecting the respective, plaintiffs in error.

Judgment below reversed with oosts, and new trial ordered.


text:
    City of Detroit vs. Blackeby.
    Tel the absence of legislation} municipalities are not liable to private suit for non-repairs of public highways.
    Error to Wayne Circuit.
   Opinion by

Campbell, C. J.

The principal question in this case is whether the city of Detroit is liable to a private action of an injured party for neglect to keep a cross-walk in repair. The other questions involve an inquiry into the circumstances which would go to modify any such liability in the present case.

The streets of Detroit are public highways, designed, like all other roads, for the benefit of all people desiring to travel upon them.' The duty or power of keeping them in proper condition is a public, and not a private duty, and it is an office for the performance of which there is no compensation given to the city. Whatever liability exists to perform this service to the public, an<J to respond for any failure to perform it, must arise, if at all, from the implication that is claimed to exist in the nature of such a municipality.

There is a vague impression that municipalities are bound in all cases to answer in damages for all private injuries from defects in the public ways. But the law in this State and in most parts of the country, rejects this as a general proposition and confines the recovery to causes of grievances arising under peculiar circumstances. If there is any ground for recovery here, it is because Detroit is incorporated, and it depends therefore . on the consideration whether there is anything in the nature of incorporated municipalities like this which should subject them to liabilities not enforced against towns or counties. The cases which recognize the distinction apply it to villages and cities alike.

It has been held that corporations may be liable to suit for positive mischief produced by their active misconduct and not mere errors of judgment.

It was substantially upon this principle that the case of Detroit vs. Corey was rested by the Judges, who concurred in the conclusion. Thayer vs. The City of Boston, 19 Pick., 511, was a case of this kind, involving a direct encroachment on private property. The Rochester White Lead Co. vs. City of Rochester, 3 N. Y., 465, where a natural water-course was narrowed and obstructed by a culvert entirely unfit for its purpose, and not planned by a competent' engineer, is put upon this ground. The cases of Hickox vs. Plattsburg, 16 N. Y., 161, Lee vs. Village of Sandy Hill, 40 N. Y., 442, involved a direct trespass.

In several cases cited on the argument, the mischiefs complained of were altogether private. The distinction between these and public nuisances or neglects has not always been observed, and has led to some of the confusion which is found in the authorities. In all the cases involving injuries from obstructions to drainage, the grievance was a private nuisance. In case of Mayor vs. Furge, 3 Hill R., 612, which has been gener. ally treated as a leading case, the damage was caused by water backing up from sewers not kept cleaned out as they should have been.

Another class injuries involves a public grievance specially injuring an individual, arising from some neglect or misconduct in the management of some of those works which are held in New York to concern the municipality in its private interests, and to be in the law the same as private enterprises. It is held, that in constructing- sewers and similar works, which can only be built by city direction, if the streets are broken up and injuries happen because no adequate precautions are taken, the liability shall be enforced as springing from that carelessness, and not on the ground of non-repairs of highways. Lloyd vs. Mayor, 5 N. Y, 369, and Storrs vs. Utica, 17 N. Y., 104, were cases of this kind. In these cases, as in the case of Detroit vs. Corey, the streets were held to have been broken up by the direct agency of the city' authorities, and the negligence which caused the injury was held to be negligence in doing a work requiring special care, or, in other words, the wrong complained of was a misfeasance, and not a mere omission.

The cases in which cities and villages have been held'subect to suits for neglect of public duty, in not keeping highways m repair, where none of the other elements have been taken into the account, are not numerous, and all which quote any authority profess to rest especially upon the New York cases, except where the remedy is statutory.

The case of West vs. Brockport, 16 N. Y, p. 161, is recognized as the one in which the whole law has been finall ysettled, and it is upon the grounds there laid down that the liabil ity is now fixed in New York.

The principle there stated is : “ That whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound, by covenant or agreement, either expressed or implied, to do certain things, such individual or corporation is liable, in ease of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases the contract made with the sovereign power is deemed to inure to the benefit of every individual interested in its performance.”

In; order to get at the true ground of liability, the opinion goes on to determine: 1st. Whether townships and other public bodies, not incorporated cities or villages, are liable, and shows conclusively that they are not, and the Court arrives at this conclusion, not on the basis of an absence of duty or an absence of means, but because their duties are duties to the public, and not to individuals.

It is admitted everywhere, except in a single case in ¡Maryland, that there is no common law liability against ordinary municipal corporations, such as towns or counties, and that they cannot be sued except by statute. It has also been uniformly held in New York as well as elsewhere that public officers whose offices are created by act of the legislature are in no sense municipal agents, and that their neglect is not to be regarded as the neglect of the municipality, and their misconduct is not chargeable against it unless it is authorized or ratified expressly by implication. This doctrine has been applied to cities as well as to all other corporations.

In the case of Eastman vs. Meredith, 36 N. H. 284, the distinction between the English and American municipal corporations is clearly defined. The former often holds special property and franchises of a profitable nature, which they have received upon conditions, and which they hold by the same indefeasible right with individuals. But American municipalities hold their functions merely as governing agencies. They may own private property and transact business not strictly municipal, if allowed by law to do so, just as private parties may, and with the same liability. But their public functions are all held at sufferance, and their duties may be multiplied and enforced at the pleasure of the Legislature. They have no choice in the matter? They have no privileges which cannot be taken away, and they derive no profit from their care of the public ways and the execution of their public functions. They differ from’ towns only in the extent of their powers and duties bestowed for public purposes, and their improvements are made by taxation, just as they are made on a similar scale in towns and counties.

In this State no municipality can exercise any powers except by State permission, and every municipal charter is liable to be amended at pleasure.. The charter of Detroit has undergone most radical changes. It is impossible to sustain the proposition that those charters rest on contract, and it is impossible, as Judge Selden demonstrates, to find any legal warrant for any other ground for distinguishing the liability of one municipal body from that of another. There is no basis on authority for any such distinction concerning the consideration on which their powers are granted, and it rests upon simple assertion.

The authorities which make corporations liable on the ground of conditions attached to their franchises, go very far towards compelling them to respond as absolutely bound to prevent mischief and the general reasoning on which most of the opinions rest, and the criticisms made upon former decisions —which, it is asserted,' went altogether too far in creating liability — all are designed to show, and do show, very forcibly that, simply as municipal corporations apart from any contract theory, no public bodies can be made responsible for official neglect involving no active misfeasance.

We think that it will require legislative action to create any liability to private suit for non-repairs of public ways. Whether such responsibility should be created, and to what extent and under what circumstances it should be enforced are legislative questions of importance and some nicety. They cannot be solved by courts.

Judgment should be reversed with costs.

This opinion was concurred in by Justices Christiancy and Graves. Justice Cooley dissented.


author: Campbell, J

text:
    Reeder vs. Crane.
    Error to Wayne Circuit.
   Opinion by

Campbell, J

This was an action of ejectment, brought by Crane to recover the Reeder farm, so-called, in Springwells, Wayne county. The farm formerly belonged to one John Harvey, who is claimed to have been an alien, and that he left no heirs except one Mary Yorke Harvey, who married Edwin Reeder, the ancestor of the plaintiffs in error, and has since deceased. After the death of his wife, Edwin Reeder took possession of said farm, and continued in possession until his death, since which time the plaintiifs in error have been in possession. The defendant in error claims that the property in question escheated .upon the death of Johtqllarvey, from the inability of his daughter to inherit, by reason of his being an alien; that if his daughter did inheritt, then the property es-cheated upon her death. Crane purchased the premises from the State Board of Escheats of this State.

Held, that if John Harvey was an alien, the property es-cheated ; that the escheat inured.to the State of Michigan, and the title passed to the State; that “ office found*’ was not neces sary to create an escheat, and that the title of the State wa not inchoate for want of “office found,” hut was subject to grant by the State, without first requiring an entry, and that the grant by the Board of .Escheats was sufficient to convey the title of the State to the plaintiff.

Judgment below reversed, and a new trial ordered.


author: Graves, J.

text:
    Stansell vs. Corning.
    In cases tried by the Court, without a jury, where arequest for a written finding is duly filed it is error to enter judgment without firstjiling such finding.
    Error to Cass Circuit.
   Opinion by

Graves, J.

Considering the somewhat unsatisfactory manner in which this record is constituted, and the qustions raised by it, we do not feel called on to examine it fartber than is found necessary to decide the case. It contains sixty assignments of error, but many of them merely question the correctness of the finding of facts by the Court below, and many others have no legal support in the facts found.

The case was tried before the Court without a jury, and a judgment was entered for the plaintiff for $1861 82,' without any finding of facts, though afterwards a finding of facts and law was filed. Held, that this course was erroneous, requests for such finding having been filed by the”parties on’the trial in aecprdánce with the rule.

Judgment reversed with costs, and new trial ordered.


author: Cooley,J.

text:
    Sammons vs. Holloway.
    Th 0 act of i Congress declaring that unstamped instruments should not bo received in evidence does not apply to State courts.
    Error to Lenawee Circuit.
   Opinion by

Cooley,J.

Holloway sued Sammons upon a promissory note. Sammons defended upon the ground that it was not sufficiently stamped under' the revenue law, and that it was consequently neither admissible in evidence nor could a recovery be had upon it if admitted. It was decided in Clemens vs. Conrad, 19 Mich., 170, that the provisions of the act of Congress declaring that unstamped instruments should not be received as evidence, did not apply to the State courts. Congress may levy stamp duties and enforce'their collection by proper penalties, but the declaring void a contract lawful under the State law, is not a proper penalty, and Congress has no power to do this.

What Congress might do regarding contracts which fall within the domain of foreign or inter-state commerce, we do not undertake to say.

Judgment affirmed.


text:
    The People vs. Doyle.
    Where, upon cross-examination, testimony as to other facts íb elicited which tends to cast doubt upon the alleged fact in controversy, it is proper to re-examine with a view to the clearing up of such doubts.
    To compare the deportment of the accused with others, held, in this case, not erroneous.
    Error to Recorder’s Court, Detroit.
   Graves, J.

The plaintiff was found guilty of attempted murder. The errors assigned were upon the admission of evidence. George Taliaferro, a grandson of Mrs. De Baptiste, having given evidence on the part of the people, tending to show that his mother, the accused, had mingled poison with wine, which Mrs. De Baptiste; his garndmother, drank, Feb. 23, 1870, and that the latter was ill after drinking the wine, was asked by the prosecuting attorney whether his grandmother was ill a few days previous to the 23rd, from eating mush. This question, was, on objection, withdrawn. On cross-examination by the the prisoner’s counsel, the witness testified that he did not know that his father left him any property, that he was the only surviving child of the prisoner, that he had - lived with his grandmother, MrS. De Baptiste, nearly all his life, that his father, the first husband of the prisoner, was dead, and left a lot to him on Beaubien street, which went to him. after his mother’s death and another lot, which went to his mother, the prisoner, after his grandmother’s death, and next to him, and that his grandmother had been ill since the Friday'night before Feb. 23, that she had upon the Friday night mentioned, eaten of- several' articles which he believed to have been poisoned, and been ill after so eating. He was then re-examined by the prosecuting attorney, and asked this questipn: “Who made the mush your grandmother ate that Friday night ?” The prisoner’s counsel objected to the question as immaterial and irrelevant, and .also as calling for testimony tending to prove another and distinct offense. The objection was overruled and the witness answered, ‘‘ My mother made it.”

It was claimed, for the prisoner, that this question was improper, hut held by the Court that with the view of clearing up some doubts which hung about the subject as to the mush and other matters it was proper and correctly admitted.

Mrs. De Baptiste having testified that the conduct of the prisoner after giving her the wine, was strange and unaccountable, while that of Taliaferro and his associate was as kind as could he, it was objected that this testimony was irrelevant and tended to operate unfavorably against the prisoner by contrasting the two kinds of deportment.

Held, however, that the testimony was relevant, and the exceptions were overruled, and the Recorder’s Court was ordered to proceed with judgment.


text:
    Ætna Live Stock Ins. Co. vs. Olmstead.
    Insurance company bound, notwithstanding the answer of the assured to one of the questions in the application was not entirely correct, when the real facts were known to the agent at the time of receiving the application.
    Error to Wayne Circuit
   Cooley, J.

Olmstead recovered judgment upon a policy of insurance, by which the company insured him against loss by fire on his house and furniture and his hotel barn, in the village of Lyons. A loss having occurred, the company refused to pay on the ground ot a breach of warranty, which by the terms of the policy rendered it void. By the policy it was provided that “ if an application, survey, plan or description of the property, herein insured, is referred to in this policy, such application, survey, plan or description shall he considered a part of this policy and a warranty by the insured.” The ninth question to the in-cured, ran as follows:

“ 9. Incumbrance; if any, state the amount. Is there any insurance by the mortgagees ? State the amount.”
«9. No.”

The breach of warranty relied upon was, that-two mortgages existed upon the property at the time of the application; but it was shown that the fact was fully made known to the agent of the company at that time, as well as the fact that there was no insurance by the mortgagees. Held-, that the company was bound by the contract of its agent, and the judgment below was affirmed.