author: Cooley J.:

text:
    Asa Annis and Jesse Annis v. The People.

      Examination before magistrate, — The provisions of the act of 1859, (Laios of 1859; p. 393,) in reference to the examination before a magistrate of persons charged with offences, were designed, to some extent, to accomplish the purposo of a presentment by a grand jury, but it was not designed that the complaint or warrant before tho magistrate should stand in placo of a formal presentment, nor that, in the Circuit Court, the prosecuting officer should he limited by it in the mode of charging tho offence.

      Parties jointly examined may be separately informed against — Accomplices as witnesses.— When several persons are joined in a complaint before a magistrate and bound over, the prosecuting officer may file a separate information against each in tho Circuit Court, and the relation of parties so informed against is no other than that of accomplices, and does not disqualify them as witnesses against each other.

      Evidence —impeachment by proof of character for truth— cross-examination, — Where a witness called for the purpose of impeaching another, testifies to his bad reputation for truth, and upon cross-examination, gives the name of a person he has heard speak against him, tho witness may be required to stato what was said by such person.
    In nothing may parties bo more easily mistaken than in judging of the general reputation of another for truth, and nothing short of a cross-examination, which compels the impeaching witness to state tho sources of the reports and their nature, will enable the party either to test tho correctness of the impeaching evidence, or to protect the witness who is assailed, if assailed unjustly.

      Statement by defendant in criminal cases — The purpose of the act permitting defendants in criminal cases to make their statement to the jury, (Laws of 1861, p. 168,) was to give every person placed on trial on a charge of Crimean opportunity to make full explanation to tho jury in respect to tho circumstances given in evidence, which are supposed to havo a bearing against him,, and to make such further statements as ho may deem material.

      Statement by defendant in criminal cases, aid of counsel in. — Where a person,, being on trial for larceny of a horse, made his statement to the jury, hut omitted to say anything in regard to tho material points in tho case, and hie counsel, without his knowledge, submitted to tho Court, for approval, a suggestion, in writing, to tho prisoner in the following language : “ I call your attention to the subject of the stolen mare, so that you may make a statement in reference to it or not” and tho prosecuting attorney objecting, tho Court refused to permit such suggestion to he made. Held, that tho Court erred in its refusal, and that the suggestion of counsel in tho manner proposed was unobjectionable and should havo been permitted.
    Held, also, that'this error was not cured by tho permission afterwards given to tho prisoner to go upon the stand and mako a further statement, in which ho said: “I know nothing about the stealing, and had nothing to do with it;” as tho prisoner evidently needed tho aid which counsel proposed to give as much at this time as ho had needed it before, and the ruling of tho Court excluded all such aid.

      Heard October 20 and 21.

      Decided October 24,

      Error to Calhoun Circuit.
    The facts are stated in the opinion.

      Z>. La/i'win Hughes for plaintiffs in error.
    1. There was no such preliminary examination in this case as would warrant the filing of an information. — Laws 1859, Act 138, Sec. 6, p. 359.
    An examination of three jointly, and a holding of. the three for trial, lays no foundation for an information against two. The record of the magistrate and the circuit must be identical as to parties.
    2. The witness, Doty, was incompetent as being a party to the- record.
    Doty being a party defendant to the preliminary examination, was not a competent witness to verify the information.
    The information must be verified before filing, and at the time of its verification there was no foundation laid except the joint examination of the three. Doty was not a competent witness on the examination, and if not, he could not verify' the information. If, after he wras jointly held for ¡trial, he became competent to swear in the case for any purpose, when was it?
    3. The defendants were entitled to the assistance of their counsel while making their statements, both by suggesting to them material subjects and by interrogation. Const. Mich., Art. 6, §28; Laws 1861, Act 125, §2; People v. Thomas, 9 Mich., 314; Maher v. The People, 10 Mich., 327; The People v. Thomas, 9 Mich., 314.
    4. When an impeaching witness has sworn that the •character of a witness is bad, and on cross-examination has stated the names of persons whom he has heard speak against it, he cannot be asked wdiat those persons said. It is hearsay and is irrelevant. The inquiry must be general as to his reputation, not what particular individuals have said. — Bates v. Barber, 4 Cush., 109; Lower v. Winters, 7 Cow., 264; State v. Howard, 9 N.

      II.; People v. Mather, 4 Wend., 259; 1 Greenl. Ev., §461; Gordon v. The State, 3 Clarke, (Iowa) 414.

      A. Williams, Attorney General, for The People.
    1. The objection that Doty was not a competent witness for the reason that he was jointly charged with the defendants in the complaint before the magistrate, is not well taken.
    An accomplice, whether principal or accessory, not being upon trial with his companions in crime, is certainly a competent witness; and this though his hopes of pardon depend upon their conviction. — 1 Greenleaf's. Ev., §379; 2 East., 782; The People v. Jenness, 5 Mich., 307.
    2; The objection that the Court acquired no jurisdiction of the respondents through the filing of the information, for the reason it was verified by Doty, who was jointly charged with them in the complaint on which they were held by the examining magistrate, cannot be sustained either upon principle or authority. — Washburn v. The People, 10 Mich., 372-3-4-5, 384-5-6; Hicks v. The People, 10 Mich., 395; Evans v. The People, 12 Mich., 27, 37-8; “Irregularities" Bouv's L. Dic., and cases cited 12 Mich., 371-6; 3 Mich., 78, 83-4.
    3. The fact that several persons were jointly charged with a crime in a complaint before a magistrate under the act of 1859, cannot operate to prevent the prosecuting officer from informing against them separately in the Circuit Court. The administration of justice may sometimes be better promoted by such course. — Smith's Commentaries, Secs. 490-1-2-3; 1 Kent's Com., 468; 3 Cowen, R., 89, 96; 4 Comstock P., 140-4-5.
    4. It is averred, as error, that James Case, one oí the respondents’ witnesses, introduced to impeach George Doty, after testifying upon his cross-examination, “that he- had heard Gilbert G. Collins speak against said George Doty before the commencement of this suit,” was allowed to answer the question, “What clid Gilbert G. Collins 'say ? ”'
    This question was proper and relevant by way of testing the credibility or means of knowledge of the witness Case, or with a view to his own impeachment.— The People v. Patton, 15 Wend., 581-5-6-7; Green's Practice, §1216, and authorities cited; 1 Greenleaf's Eh., §461, and authorities cited1; 1 Mich. 107-8.
   Cooley J.:

The defendants and one George Doty were arrested upon a warrant issued by a Justice of the Peace, charging them with the larceny of a mare. A preliminary examination having been had, the Justice found probable cause for believing them guilty of the offence, and these defendants were duly recognized to answer the charge in the Circuit Court, while Doty was committed to jail in default of bail. ,

The prosecuting attorney, instead of proceeding against the three jointly in the Circuit Court, filed one information against Doty, and another against these defendants: the latter being verified by the oath of Doty. The defendants, being arraigned on this information, pleaded not guilty thereto, and the case was continued to the next term of the Court. -

When the cause came on for trial against these defendants, Doty was called as a witness for the peoj)le; and on. its being admitted that he was the same person who was joined with them in the proceedings before the justice, the counsel for the defendants objected .to his being sworn and examined as a witness, on the ground that he was not a competent witness in the case. The Circuit Judge overruled the objection, and the witness was sworn and gave evidence.

The reason urged fqr this objection is, that Doty was a party to the record, and therefore could not be made a witness against the other parties. We do not think this position is correct, and it does not, therefore, become necessary to decide whether his being a party would of necessity preclude his being a witness against joint defendants, when he was not himself on trial. It is true-he was a party to the proceedings before the justicebut those proceedings are only preliminary to the filing of an information, and do not constitute a part of the record in the Circuit Court. The statute (Laws of 1859, p. 398,) provides that, except in certain specified cases, no information shall be filed against any person for any offence, until such person shall have had a preliminary examination therefor, before an examining officer , on magistrate, unless such person shall waive his right to such examination. The examination, under' this statute was designed, to some extent) to accomplish the purpose of a presentment by the grand jury under the law as it existed before, in protecting a party against being subject to the indignity of a public trial for an offence before probable cause had been established against him by evidence under oath. But it was never designed that the complaint or warrant before the magistrate should stand in the place of a formal presentment, nor that in the Circuit Court, the proceeding officer should be limited by it in this mode of charging the offence. It is undoubtedly competent for him, so long as he does not undertake to prpceed against a person for a different transaction than that to which the examination relates to put his information in such form as, in his opinion, will enable him to try the offence on the merits, m the-way most effectually to- advance the ends of justice. In the present case he deemed it important that the defendants, who had been jointly examined for an offence which was several as well as joint, should be separately proceeded against in the Circuit Court; and we tave no doubt of his right to do so. As the information was the commencement of the record in the' Circuit Court, Doty stood in no other relation to the present defendants than that of an accomplice, and there was no legal objection to his evidence.

After Doty had been examined, the defence called one Case, for the purpose of impeaching him, who testified that he was acquainted with said Doty, and had known him for several years, and for that length of time had lived within, two miles of him; that he had the means of knowing the general reputation of said Doty for truth and veracity in the neighborhood in which they both resided, and did know such reputation, and that it was bad. On being cross-examined, he further stated he had heard Gilbert G. Collins speak against said Doty, before the commencement of this suit. The prosecuting attorney then asked the witness the- question: “ What did Gilbert G. Collins say?” which was objected to by the counsel for the defendant, on the ground that it was not proper cross-examination, and that the question called for inadmissible hearsay testimony. The Court overruled the objection, and the witness answered the question.

We have no doubt that this ruling of the Circuit Judge was correct. It was in accordance with the practice which has prevailed in this State from the earliest days, and 'in entire accord, as we believe, with the general rules of evidence. Mr. Greenleaf lays down the rule that where the impeaching witness has spoken to general reputation, the opposite party may cross-examine him as to his means of' knowledge, and the grounds of his opinion. — 1 Greenl. Em., §461. The same rule is laid down in Phillips v. Kingfield, 19 Me., 381, and Bates v. Barber, 4 Cush., 109. The real purpose of this cross-examination is to enable the Court and jury to determine whether the impeaching witness in fact knows the general reputation of the -other, and if so, whether he testifies truly in regard to it.

It was suggested, on the argument, that the witness might, with propriety, be asked whether the unfavorable' reports which prevailed had reference to the question of truth, so as to test his accuracy in assuming to speak to a general reputation for veracity; but if the examination must stop here, its purpose would very generally be defeated. There is no cas'e where a thorough cross-examination is more important to an elucidation of the truth, than where a witness in giving an answer to a general question which calls both for matter of fact and matter of opinion. If a witness can shield himself behind an answer so general that, even if false, the person who-knows that fact cannot testify with definiteness on the subject, we may well believe that bad men will frequently resort to this species of evidence where the truth will not warrant it.

And in nothing may parties be' more easily mistaken than in judging of the general reputation of another for truth and veracity. They may either be mistaken in assuming the speech of one or two to be the voice of" community; or they may confound a reputation for something else with a reputation for untruth; or they may misconstrue reports; or they may honestly be mistaken in regard to their purport. Nothing is more common in practice than to see a witness placed upon the stand to impeach the general reputation of another for veracity, when a cross-examination demonstrates that the reports only relate to a failure — probably an honest one — to meet obligations, while' the party’s real reputation for truth is above suspicion. Nothing short of a cross-examination, which compels the impeaching witness to state-both the source of the reports and them nature, will enable the party either to test the correctness of the impeaching evidence, or to protect the witness who is. assailed, if he is assailed, unjustly.

There is one other point in the case which is prosented by the record as follows: Jesse Annis, one of the defendants, went upon the witness stand, and, without •being interrogated, made a statement under the act of 1861, (Laws of 1861, p. 168,) but in such statement said nothing upon the subject of his knowledge of the mare-' alleged to have been stolen, but did make a statement in reference to other material points in the case. Whereupon the counsel for the defendants proposed to call the attention of said Jesse, while upon the stand, to a subject which he had omitted, in the following words: “I call your attention to the subject of your knowledge of the stolen mare, so that you may make a statement in reference to it or not,” which proposition was made in writing, and submitted to the Court and to the prosecuting attorney, without being made known to said Jesse Annis, or to any other person. The prosecuting attorney objected, on the ground that the statement to be made by the defendant must be made without interrogation to him, and without any suggestion to him. by counsel, while he was upon the stand. The Circuit Judge sustained the objection, and said Jesse Annis left the stand; but he afterwards requested the Court to allow him to make a further statement, which request was granted; whereupon he went upon the stand and stated as follows: “I know nothing about the stealing, and had nothing to do with it.”

Two questions are presented for decision in reference to this statement: First, Whether the Court erred in the ruling; and if so, then, Second, Whether the error was cured by .the defendant afterwards going upon the stand and making the statement he did.

We have already had occasion to consider the purpose •and effect of the act of 1861, under which this statement Was made. The purpose of the Legislature was to give every person placed on trial on a charge of crime an opportunity to make a full explanation to the jury in respect to the circumstances given in evidence which are supposed to have a bearing against him, and to make such farther statements as he may deem material. Although not under oath, the jury have a right to consider this statement in making up their verdict, and may give it such weight as they think it entitled to. — People v. Durant, 13 Mich. See also, People v. Washburn, 10 Mich, 372; People v. Thomas, 9 Mich., 314. — The statute is both just and humane in its purposes, and it should i receive a construction which will give it full effect.

The defendant, when he goes upon the stand, may fairly be supposed to understand what facts within his knowledge ,will have a bearing upon the case, and will tend to remove any suspicion which the sworn evidence has cast upon him. There is no propriety, therefore, in his counsel being allowed to question him as a witness is questioned, and the statute which allows him to “ make a statement ” evidently does not contemplate that his knowledge of the case shall be drawn from him by questions in the usual form.

But to hold that the moment the defendant is placed upon the stand he shall be debarred of all assistance from his counsel, and left to go through his statement as his fears or his embarrassment may enable him, in the face of' the consequences which may follow from imperfect or unsatisfactory explanation,, would in our opinion be to make, what the statute designed as an important privilege to the accused, a trap into wjiich none but the most cool and self-possessed could place himself with much prospect of coming out unharmed. An innocent man, charged with a heinous offence, and against whom evidence of guilt has been given, is much more likely to be overwhelmed by his situation, and embarrassed, when called upon for explanation, than the offender, who is hardened in guilt; and if he is unlearned, unaccustomed to speak in public assemblies, or to put together his thoughts in consecutive order any where, it will not be surprising- if his explanation is incoherent, or if it overlooks important circumstances. The weak in mind and body are precisely the classes most needing the protection of this statute, and they are the very classes who, in most cases, would receive no benefit from it if the construction adopted by the Circuit Judge is correct. ,

This fact is illustrated in the case before us. The defendant went ripon the stand and made a statement in reference to some material facts, but left it without saying a word about the property he was accused of having stolen. This omission could not fail to have its effect against him in the minds of the jury; and if, in fact, he was an innocent man, we can only attribute the omission to some embarrassment springing from tbe unaccustomed, and, to him, momentous circumstances surrounding his attempt at explanation.

The manner in which the counsel sought to call his attention to the subject to which he should direct his explanation, was quite unobjectionable, and was well calculated to secure to the defendant the benefits intended by the law, without endangering public justice. The defendant, through embarrassment, defect of memory, or other reason, having failed to make his explanation full, the counsel proposed to call his attention to the topics he had omitted, that he might make further explanation in .regard to them if he saw fit. This was not done, however, by way of question addressed directly to the defendant, but tbe proposition was delivered in writing to the Judge that it might have his approval before the prisoner should be informed what it was. This precaution was eminently pr'oper, and if adopted, as we think it should generally be, will prevent the privilege being abused by being made a means by which counsel may indicate to a prisoner what they desire to have him say. And the Judge, although allowed, to pass upon the propositions and reject such as are improper, should not be regarded as possessing.unlimited power to reject at discretion, but as bound to allow all that are made in good faith, and with a view only to call the attention of the defendant to the subjects to which he should address himself.

The error in this case was not cured hy the prisoner going upon the stand and making a further statement. The last statement was as defective as the first, and could scarcely have been made by any man in the form it was, unless he was laboring under great embarrassment. The prisoner needed the aid which counsel proposed to give, as much at this time as he had needed it before; and the ruling which the Court had made, and which was sweeping in its extent, excluded all such aid.

The Circuit Court for the County of Calhoun should be advised that, in the opinion of this Court, the verdict should he set aside and a new trial granted.

The other Justices concurred.


source: Caselaw Access Project

author: Campbell J.:

license: Public Domain

text:
    George Jerome v. John W. Williams.

      Certiorari will lie to review order of the Court allowing execution, —Whcro a stay of execution "before a Justice has heen filed in the office of tho County • Clerk, and the Circuit Court, upon .application of tho judgment creditor, grants an order allowing an execution against tho surety, a writ of certiorari will lie to review such, order.

      Execution cannot issue after statute of limitation has run against the judgment. — Where lapse of time sincó issuing an execution renders it necessary to ap ply to tho court for leave, it cannot properly ho granted where such delay has intervened that no action will lie on tho judgment.

      One "became surety for stay of execution under the statute of 1846; executions were subsequently issued by the Justice, which, being returned unsatisfied, some years afterwards, a transcript of the judgment was filed in the office of the County Clerk, and an execution issued upon it which was likewiso returned unsatisfied. More than four years after the filing of said transcript, and when more than six years had intervened since the return of the last execution on the stay, the original stay was filed in the office of the County Clerk, and on the application of the judgment creditor, a new execution was ordered against the surety, as well as the judgment debtors; — Held, That such order, in so far as it allowed an execution against tho surety, was erroneous.

      Heard October 21.

      Decided October 24.

    Certiorari to Wayne Circuit.
    Tbe facts are stated in tbe opinion.

      Theodore Momeyn, for plaintiff in error:
    To the point that the plaintiff in error, Mr. Jerome, is discharged by the lapse of time, and under the statute of limitation. v
    1. A Justice’s Court is not a Court of Record, and, therefore no action lies on the judgment of such Court after six years. — 2 Comp. Laws, §5361.
    2. Execution canuot issue, in ' the Justice’s Court after two years from the time of rendering judgment, or the return of a prior execution. — 2 Comp. Laws, §3805.
    3. The filing of a transcript in the Circuit Court gives a right to levy on real estate and extends the remedy. But, it is respectfully submitted, the judgment actually rendered in the Justice’s Court does not become a judgment rendered in the Circuit Court, because, for the sake of the remedy, a transcript has been filed, at' least with the reference to the statute of limitation.— 2 N. Y. R. S., 80, p. 248, §129, p. 296, §18; Johnson v. Burrell, 2 Hill, 238; Young v. Remer, 4 Barb., 442.
    4. Whatever may be the rule as to the judgment debtor, it is submitted that the surety in this case cannot be held to have had a judgment rendered against him in the Circuit Court.

      The statute in force, when he became surety, did not make his undertaking equivalent to a present judgment against him.
    Even if it had such effect, still, the plaintiff saw fit to take his judgment in the Circuit Court against the principal debtor alone.
    There certainly was no judgment rendered against the surety in the Circuit Court, until the securety signed by him was brought there.
    And this was not done until years after the plaintiff had perfected the judgment against the principal in the latter Court.
    5. The statute of limitations can be set up on a motion of this kind, or on scire facias. — 2 Hill, 234 4 McLean, 352.

      Walker é> Kent, for defendant in error:
    To the point that the remedy on the judgment against the surety was not barred by the statute of limitations.
    On filing the transcript, the judgment became one of the Circuit Court, as against the principal defendants at least. — Comp. Laws, §3788; Jewett v. Bennett, 3 Mich., 198; Waltermire v. Westover, 14 N. Y., 16.
    A judgment of the Circuit Court is presumed paid after ten years from its entry. — Compiled Laws, §5384.
    But if proceedings have been commenced, to issue execution, before this period has elapsed, the expiration of the time pending the proceedings is no bar. — Driggs v. Williams, 15 Abbott Pr., 477.
    And the statutory presumption of payment may be rebutted. — Cowen and Hill’s Notes, Part 1, p. 324; Joy v. Adams, 26 Me., 330; Redington v. Julian, 2 Ind., 224.
    There are in the case at bar affidavits showing that the judgment is not paid. If any statutory presumption of payment might otherwise arise, this must be sufficient to rebut it. .
    The judgment can be enforced, then, against the principal defendants.
    The stay is, security for the judgment; it is collateral thereto, and, unless for some special reason, it will last as long as the judgment.
    It will be said that it is outlawed, because not filed in the Circuit for more than six years.
    If so, it must be because of some statutory provision. There is 'none which by express words or reasonable implication means any such thing.
    It is well settled that the statute of limitations does not take away the right of the creditor, it only bars him from remedy by action. — Parsons on contracts, vol. 2,p. 319.
    The remedy by execution is not barred because there may Tbe no right of action. — Waltermore v. Westover, 14 N. Y., 16.
   Campbell J.:

Jerome, on the 10th of March, 1855, signed an instrument to operate as stay of execution on a judgment by confession, entered the same day, in favor of Williams against O' M. Hyde and J. L. Conger. Successive executions were returned unsatisfied before the Justice, who, on June 20th, 1860, certified .a transcript of the judgment, which was filed in the County Clerk’s office. The stay of execution w;as not then filed, and an execution was issued by the Clerk on the transcript against all parties, and returned unsatisfied September 6, I860.. Subsequently, but when, does not appear, except that it was between September 12th, 1864, and February 15th, 1865, the original stay appears on file in the Clerk’s office, with an endorsement, “filed as of June 23, 1860, by order of the Court. Henry Starkey,. Deputy Clerk.,” February 15, 1865, upon application of tbe judgment creditor, a new execution was ordered against the stay as well as the judgment debtors, and Jerome, thereupon, brought certiorari to review the order.

It was suggested that a certiorari, would not lie on such an order, but that being the decision of a common law Court, it can only be reviewed on error. The proceeding, however, is a summary proceeding not in com-on law form, and may be had at chambers as well as in Court. Wo think there is no ground for the objection.

It is claimed in behalf of Jerome that this stay never was lawfully in the Clerk’s office, and also that after this lapse of time any proceeding upon it is barred.

The statute providing for filing transcripts requires the Justice to give to the plaintiff a certified copy of the proceedings, “ together with the original security for stay of execution.- — -2 G. JO., §8186. The Clerk is required, upon receiving an affidavit of the amount due, to file the “ transcript and security,” and to “ enter and docket the judgment.” “ Such judgment shall have the same effect as a judgment rendered in the Circuit or District Court, and may, in the same manner, be enforced, discharged, and cancelled; and execution may be issued thereon against both the surety and the person' against whom, the judgment was rendered, or either of them, in -the same manner as if execution were to be issued by the Justice.” — 2 C. L. §3181-8.

There was not, under the statutes of 1846, which were in force when this stay was filed, any provision requiring any judgment to be entered on a' stay. Execution might be issued on it, but it was not in any way made to assume the form of a judgment entry, and when sent up it was not a part of the transcript, but was. filed as a separate document. While these statutes were in force, it was held to be so far distinct that the judgment might be sued separately, when the stay had not even matured. — McDonald v. Butler, 3 Mich. R. 558. — And under the present statutes just referred to, an execution may be on the judgment, or on the security, or on both. — §3188.

It is worthy of some consideration whether a party who files a transcript only, and proceeds on that, can subsequently file the stay. Such a question cannot easily arise under our present laws, which declare expressly that the entry of stay shall have the effect of judgment, so that the transcript will always include this. — 2 C. L., §3804. — But if it be not a judgment, then there is no law which undertakes to vary its effect from what it was in the Justice’s Court, except so far as a Circuit Court execution reaches property not reached by an execution from the inferior Court.

The case then presents this position: It appears that until September 12, 1864, and how much later is uncertain, the stay had lain dormant. No suit had been brought upon it, and more than six years had elapsed since the last execution on it had been returned unsatisfied. There can be no question but that it was barred by the statute of limitations, so that no action would lie upon it, being a simple writing. — 2 G. D., §5361.— Had it been an ordinary Justice’s judgment it would have been barred by the same section. This proceeding to renew an execution is, in effect, so far as this stay is concerned, an attempt to establish a claim which could not be sued upon because barred by time. This summary proceeding is a substitute for a scire facias, and does not differ in its nature from a formal action. The scire facias, in personal actions, was only a substitute itself for an action upon judgment. — 2 Bist., 469. — We think, therefore, that where the delay in issuing execution has rendered it necessary to apply for leave, the Court can not properly grant it where such delay has intervened that no action would lie. It is not necessary for us to decide how far the nature of a Justice’s judgment is affected hy filing a transcript, so as to change the statutory limitation, as the case comes up on the stay only, which is clearly barred.

The order of the Court helow, in so far as it allows an execution against Jerome, must he quashed with costs.

Cooley and Christiancy JJ. concurred.

Martin Ch. J. did not sit in this case.


text:
    Richard A. Facey v. Ezbon G. Fuller.

      Public office —legal right of incumbent cannot be attacked collaterally — proof off user. — The actual legal right of one who is the incumbent of an office cannot be tried in a collateral action between third parties, and in such case the mere proof of user by any one who knows the fact will bosufficient to give full sanction to his acts.

      Certificate of a Justice to a transcript of judgment' — its effect. — Where a Justice, in pursuance of the statute, (2 Comp. Latos, §3893,) certifies a transcript of a judgment from the docket of a former Justice, which he certifies is in his control, full credit will be given to such certificate, and it will be presumed that the docket is legally in his possession.

      Evidence — docket entries of a Justice may not' be disproved. — In a suit upon a Justice judgment, the docket entry of the Justice, that the defendant appeared and pleaded in such action, cannot ho disproved.

      Heard October 10.

      Decided October 24.

    The facts sufficiently appear in the opinion.

      ~W. 8. Geer, for plaintiff in error:
    1. There is no legal proof that the paper offered was a transcript from the docket of any Justice of the Peace in Branch County, or any other county of this State. There is - no clause in our statute authorizing Porter to certify that Morehouse was formerly a Justice of Branch County, of this State. Porter, at most, could only certify to the correctness of the copy of judgment; the balance was merely surplusage, and of no legal force, whether objected to or not. And, further, there was no testimony given showing that- the signature of Porter was genuine; and no person was called who had official knowledge of said Porter’s judicial functions, and the certificate does not carry with it the 'smallest degree of legal evidence that Morehouse was ever a Justice of Branch County, and, as such, rendered said judgment.
    2. The want of jurisdiction may be shown by evidence, even where it tends to contradict the minutes or dockets which are kept by Justices of the Peace as records of their proceedings. — Clark v. Holmes, 1 Doug., (Mich.,) 390.
    This judgment had been rendered over five years before the plaintiff ever had any knowledge of its existence, as by him claimed. What remedy has the plaintiff in error, except to inquire into and contradict the jurisdictional facts therein recited? — See 4 Selden N. Y. R., 57, and cases there cited. Chemung Canal Bank v. Judson, 4 Selden, 254, is directly in point. In this case Judge Ruggles says: “ The power of this Court to inquire into the jurisdiction of the District Court of the United States is undoubted.” Also, see 19 Johns., 39; 8 Wend., 569; 18 Pick., 393; 1 Exch., 1.

      “No officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts .on which jurisdiction depends.” — Harrington v. People, 6 Barb., 607; 5 Barb. S. C. R., 607.
    The minutes made by a Justice of the Peace in 'making -a record of a judgment taken before him are only prima facie evidence of the facts therein stated on which jurisdiction depends. — 6 Barb., 607.
    The objection taken was that the record could not be contradicted by parol testimony. This objection impliedly admits that a certain other class of testimony would 'be admissible.

      If any testimony is admissible, the testimony that was offered should have been received, for the reason that it was impossible for the Court to say to what extent the plaintiff in error might have followed up his offer. This Court will not presume that the testimony offered was all that the plaintiff in error could have produced upon this subject. — 12 Mich., 452.
    Fraud and collusion will vitiate the return or record •of any officer. — Neal et al. v. Granger, 8 Mich., 450.

      M G. Fuller, in person:
    Every Justice of the Peace shall keep a docket, in which he shall enter certain enumerated items. — Comp. Laws, §3890.
    The original entry of the judgment or other proceedings, or a transcript certified by him, is good evidence thereof: — Comp. Laxos, §3892.
    And “ a transcript from the docket of any Justice of the Peace of any judgment had before him, of the proceedings in the cause previous to such judgment, of the execution issued thereon, if any, and of the return of such execution, if any, when certified by the Justice having control of the docket, shall be evidence to prove the facts stated in such transcript.”— Comp. Laws, §3893.
    Thus it appears a Justice Court, though not a court of record, because it has no seal, is authorized to kgep -a docket, and being clothed with common law jurisdiction for the trial of causes, such docket, “ although not technically a record, is at least elevated to the dignity of a speciality;” “it has all the effects of a record.” — Niles v. Totman, 3 Barb., 594; Rood v. School Dist. No. 7, of Town of Bloomfield, 1 Doug., 502.
    (The following cases were cited as sustaining the point that a Justice docket, as to the appearance and plea of ~a defendant, cannot be collaterally disproved.) — 23 Maine, 114; 12 Vt., 538; Id., 657; 35 Maine; 1 Richardson,
      147; 3 Whart., 159; 3 Barb., 597; 4 Shep., 18; 4 Dana, 499; Stohoff v. Dunham, 4 Harr., 181; Smith v. Shockleford, 9 Dana, 452; Brintnall v. Foster, 7 Wend., 103; McCarty v. Marsh, 1 Seld., 263; Dyckman v. The Mayor of New York, 1 Seld., 434; Seldon v. Wright, 1 Seld., 497; Stevens v. Maugum, 27 Miss., 481.
    I am unable to see any reason why the sworn judgment. entries of Justices of the Peace in this State, (such as they are required to make,) with their enlarged jurisdiction, “ vested with ‘all such powers as are usual in courts of record, except the power of setting aside a verdict and arresting judgment thereon,” (Comp. Laws, §3656,) should be open to contradiction by parol, when the entries of a clerk of the circuit are not. They, at least, ought to be considered as sacred as judgment records of another State, (Wilcox v. Kassick, 2 Mich., 165,) or a constable’s return.
    There is no force in the objection to the introduction of the transcript. It is perfect; and the certificate of A. L. Porter, the Justice who had control of Morehouse’s docket, in every particular,, complies with the statute. The transcript recites all that is necessary to give the Justice jurisdiction both of the person and subject matter, and the judgment is in due form. The certificate of Porter, which was in evidence, and returned to this Court, shows most conclusively the county and State' where the judgment was rendered. A docket from any other county or State would not be “-under his control ; ” at least, there is a fair presumption raised that such judgment was rendered in the County of Branch. Certainly there is no denying that Porter was a Justice of the Peace in the County of Branch, and State of Michigan, and had control of Morehouse’s docket. Then it follows that the transcript certified by him “ should be evidence to prove the facts stated.” — Comp. Laws, §3893.

      The general rule is, that every fair ^intendment should he allowed in support of judicial proceedings. “Where office copies are made evidence by law, the hand-writing of the attesting officer need not be proved.” — Bryan v. Wease, 4 Miss., 106.
   Campbell J.:

Fuller sued Facey upon a judgment purporting to have been rendered in his favor, against said Facey, by one D. C. Morehouse, Justice of the Peace. The judgment was proved by the certificate of Albert L. Porter, ■Justice of the Peace, who certified a transcript from Morehouse’s docket, stating- the docket and judgment to bé under his possession and control.

It was objected that the evidence of Porter’s being a Justice of the Peace was insufficient, because proof was made by an ordinary witness, and not by the county clerk, or other person having official knowledge. The proof was full and clear that Porter was an acting Justice in Coldwater, Branch County, at the date of the certificate. It is not usually necessary to prove more than this, and the acts of a person in the full enjoyment of public office do not require any further sanction. The actual legal right of an incumbent cannot be tried in a collateral action between third parties, and the user of an office may be proved by any one who knows the fact.

It is also objected that it does not appear that Porter had any authority to make the transcript. He is a person in whose custody the docket of a former Justice of the same place may legally be placed; and when he certifies that it is actually in his custody, it must be presumed to be there, and to have been placed there by lawful means. If a certificate of an officer cannot prove that the document he certifies is in his custody, it can be of no value as evidence. When the law pro' vides for such proof, it regards the certifying officer as acting under his official oath, and gives credit to his acts accordingly. Our statute expressly provides for just such a certificate, and declares that the transcript, when certified, “shall be evidence to prove the facts stated in such transcript.” — 2 Comp. Laws, §3893. We think that when a Justice certifies such a transcript, the original must be presumed to be in his legal control.

The defendant below offered to prove that no process was ever issued or served on him in the original suit, and that he never appeared in it. The docket shows service and return of a summons, a personal appearance, and plea of the general issue, and regular proceedings to judgment.

Among other things required by law to be entered by a Justice on his docket, áre, “the time when the parties appear before him, either without process or' on the return of process,” and, “ when the pleadings are made orally, a. concise statement of the declaration of the plaintiff, the plea of the defendant, the further pleadings of the parties, if any, and the issue joined.” — 2 Comp. Laws, '§3890. This appearance and pleading can only be made in open Court, in the presence of the Justice. Whether, therefore, a party appears and pleads, is a fact which must come within his personal knowledgé, and on which his subsequent action must always be based. Without deciding , how far questions of- jurisdiction can be considered open in other cases, we think that, where the Justice has found and entered these facts of' personal appearance and pleading in the cause it would be entirely unsafe to permit them to 'be dis-, proved, any more than to allow any question on the merits to be reviewed. The law respects his judicial action, and will not allow his assertions of what he must personally know to be disputed. There is some conflict in the authorities as to how far jurisdiction, when recited, may be impeached. . But since the return of a ministerial officer of personal service is nnimpeachable, we think it would be little short of absurd to deny to the finding by a Justice of a fact within Ms own knowledge, at least as mucb credit ■ as is due to Ms constable’s certificate. There is no question of identity raised in the present case. We think the Court was right in refusing to allow the docket to be contradicted. As appearance and pleading would dispense witb personal service of process, we 'express no opinion upon the testimony offered to dispute the issue and service of summons.

• There is no error in tho judgment, and it must be affirmed, with costs.

The other Justices concurred.


author: Christiancy J.:

text:
    John R. Outhwite v. Lewis Porter, William W. Cantine and Aaron B. Miner.

      Injunction, —Bill to restrain ike collection of notes. — A and B being engaged in mercantile business together, the former purchased the interest of the .latter, and iu consideration thereof, and in payment of a debt of B to C, gave his notes to 0, who accepted them in lieu of B’s notes, which he gave up. Beforo A’s notes became due, he discovered that B had defrauded him in the sale, and ho notified C of. tho fact, and that he should not pay the notes. There was no evidence that C was a party to or had knowledge of the fraud; — Held, That A was not entitled to a deereo restraining 0 from the collection of said notes.

      Negotiable paper — Holder for value. — A person taking negotiable paper before due from the payee for a precedent debt, is a holder for value, and such paper in his hands is not subject to the equities existing between antecedent parties.— hostwick v. Bodge, 1 Doug. 413.

      Defendant not served with process — void decree against, will be set aside, though he docs not appeal. — "Where in a Chancery appeal it appeared that one of the defendants who did not appeal was never served with process, and did not appear in the causo in the Court below, but that tho bill was. taken as confessed against him upon publication, and the dccrco against him by tlio Court below, was for tho payment of fourteen hundred dollars \ — Hehl, That tho Court never acquired jurisdiction, of said defendant so as to affect him by such dcqj’ce, and, although he had not appealed, tho decree, being void as to i him, would be set asido.

      Heard October 24 and 25.

      Decided October 31.

      Appeal in Chancery from Muskegon Circuit.
    The facts, so far as they are necessary to an under■standing of the legal questions, are stated in the opinion.

      Moore <& Griffin for complainant:
    1. Porter did not give value for Outhwite’s promise to pay, either by way of harm to himself, or benefit to Outhwite. What he received from Outhwite was a mere promise to pay Cantine’s debt, not yet due, at the same time and place, and for the same amount; that which Porter parted with was not a security for Cantine’s debt, but mere evidence of its existence. The debt still remained as effective and effectual from Cantine to Porter as if the notes had not been surrendered.
    If Porter has not discharged his debt against Cantine, rso that he has no right to sue Cantine for the goods sold, he cannot be considered a bona fide holder for value, within the purview 'of the law merchant, which he invokes to his aid.
    On this subject we have eliminated a large number of cases, and present only those which are the more thoroughly considered, and bear on the particular features of this case.
    We cite the New York authorities in the order in which the cases have been decided. — Coddington v. Bay, 20 John., 637; Wardell v. Howell, 9 Wend, 86; Rosa v. Brotherson, 10 Wend., 86; Ontario Bank v. Worthington, 12 Wend., 593; Payne v. Cutler, 13 Wend., 605; Francis v. Joseph, 3 Edw. Ch., 182; Furniss v. Gilchrist, et. al., 1 Sandf., 53; Stewart v. Small, et al., 2 Barb., 561; Farmington v. Frankfort Bank, 24 Barb., 554; Cardwell v. Hicks, 37 Barb., 458.
    Citing and approving New York cases, see Nevitt v. Bank of Port Gibson, 1 Freeman’s Ch., 438; Hugenin v. Basely, 14 Vesey, Jr., Ch., 287.
    There can be no pretense that Porter has been injured by the laobes of Outhwite, or by the confidence that Outhwite reposed in Cantine, so that thereby Porter has been induced to give credit, or delay in prosecution of his remedy against Cantine; for he was notified of the fraud, and of Outhwite’s election to rescind his agreement with Cantine before maturity of Cantine’s notes, and before Porter had a right to sue Cantine for the debt.
    Thus, in no aspect of the case has Porter been injured, or Outhwite benefitted, by the promise of the latter to pay Cantine’s debt.
    2. The decree of the Court below is erroneous, however, in two respects; and we ask the Court here, in decreeing according to the very right of the matter, to correct these errors.
    First. It was erroneous to ■' grant a personal decree in favor of Outhwite against Cantine, as the very fraud had been effectual, which this bill is filed to prevent.
    Second. It was erroneous to refuse relief as to the notes ujDon which Porter had obtained judgment.
    The Court below was undoubtedly led into these two errors, by giving effect to the two judgments as estoppels against questioning their equity or justice, and by not taking into- consideration that other rule -of law, that although a party may avail himself of an estoppel, yet he is not bound to do so; and if he pleads to the merits, he opens the estoppel and consents that the case be decided on its real merits. Estoppels are not favorites of law, because it is their peculiar office “ to exclude the truth;” and this defendant, having joined issue upon' the merits of the complainant’s bill, and not having in any way insisted upon the estoppel of the judgments, but rather having relied solely upon his claim as to all the notes, indiscriminately, to come within the purview of the law merchant, has thereby opened the estoppel, and happily, thus relieved his conscience and character from the burden of effectuating to any extent the frauds of Cantine upon Outhwite. — 1 Chitty on Plead., 590; 311; Stark on Ev., notes by Sherwood, 311; Voogt v. Winch., 2 Barn. and Alderson, 657; Outram v. Morewood, 2 East., 364; American Common Law, vol. 5,, 89—90—91—92; Ferguson v. Miller, 5 Ohio Cond. Rep., 291; Davis v. Tyler, 18 Jihn., 489; Davoue v. Fanning,, 4 John. Ch., 200; Rosse v. Rust, 4 John. Ch., 555; Young v. Rummell, 2 Hill. 478; Miller v. Maniel, 6 Hill, 114.

      Soyi Post for defendant Porter:
    1. Courts of equity will not interfere by injunction to restrain proceedings at law after judgment, unless special circumstances be shown; as that the party had. no adequate remedy at law, or was ignorant of such defence diuing the suit, or was prevented from availing himself of such defence by fraud-.or accident, or by the act of the opposite party unmixed with negligence or fault on his part. — Foster v. Wood, 6 Johns. Ch., 89; Wixon v. Pavis, Walk. Ch., 15; Wingate v. Haywood, N. H., 437; 2 Storey’s Eq. Juris., 886, et seq.; 2 Lead. Cas. in Eq., part 2, 97, et seq.

    2. Equity will not interfere to prevent a party from pursuing a legal remedy without some showing that the proceeding will be unjust arid against equity. 'The only foundation alledged in this suit for - the interference of equity to enjoin the foreclosure of said mortgage is the pretended fraud of Porter, and collusion and connivance, on his part with, said Cantine to defraud complainant. Of this there is a total want of proof of any kind.
    Fraud will not be inferred from slight circumstances, but the proof of it must be so clear and conclusive as to leave no rational doubt of its existence, in the mind of the Court. — Buck v. Sherman, 2 Doug. Mich., 176; Hollister v. Lord, 2 Mich., 310.

      As to what constitutes fraud, see 1 Story’s Eq. Juris., §190, et seq.; 2 Kent’s Com., 484.
    "We submit, then, that under all circumstances of this, case there were no such equities established as justified the Court in enjoining Porter from collecting his note by foreclosing the mortgage collateral thereto.
    3. Considering the transaction ás a whole, Porter occupies really a‘ position analogous to that of a bona fide holder of notes given by complainant to'Cantine, and by Cantine transferred to him before due for a valuable consideration. In such case any fraud in Cantine in obtaining the notes does not affect the holder’s rights without fraud in him or notice to. him of Cantine’s fraud, unless he received the notes under circumstances of such a strong and pointed character as necessarily to cast a shade upon the transaction, and put him on inquiry.
   Christiancy J.:

This was a bill to restrain the collection of three promissory notes and a mortgage made by complainant, to the defendant Porter, upon two of which notes judgment had been obtained:

Cantine, one > of the defendants, (who was not served with process, but against whom the bill was taken as confessed upon publication,) had been a partner of complainant from the spring of 1860 down to the fall of 1861. He had had the whole management of the business, keeping the books himself — the complainant being engaged personally, most of his time, in other business, and being ignorant of book-keeping, and unable to judge of the condition of the firm from the books, and knowing little of its real condition.

In the fall of 1861, Cantine sold to complainant his interest in the firm, making his own statements of its condition, the accounts and the debts of the firm, etc., upon the correctness of -which complainant relied in. making the purchase.

All the purchase price was paid, except a sum equal to the amount of three promissory notes of Cantine, held by Porter, which were not yet due. These, Cantine proposed that complainant should take up by substituting his own paper, and this would pay the balance of the purchase money on the purchase of his partnership interest. This complainant was willing to do, if satisfactory to Porter. The parties called upon Porter, stating their object, who, after making certain inquiries as to the property and responsibility of complainant, agreed to take his three promissory notes and his mortgage, in lieu of Cantine’s notes, and to surrender the latter. Complainant’s notes and mortgage were, in ¡pursuance of this agreement, completed and delivered to Porter a few days after, and Porter gave up to Cantine his notes. About a month after this arrangement was completed, complainant discovered that Cantine had defrauded him in the sale of his interest in the firm, by false representations of the condition of the firm; that it was owing much more than he had represented; that he had kept false accounts, had used money of the firm not accounted for, and had not paid in the amount he had represented; and complainant thereupon notified Porter of the .fraud, and that he should not pay the notes. This was prior to the maturity of his notes, and before those of Cantine would have become due. The bill charges Porter with 'full knowledge of, and complicity in, the fraud of Cantine, by which complainant was induced to give the notes and mortgage.

Cantine’s fraud is clearly established by the proof; and if the notes had been given to him, the complain-, ant would, as against him, be clearly entitled to the relief he asks.

But there is no satisfactory evidence that Porter, at the time of the arrangement, or the giving up of Can-tine’s notes, had any knowledge or intimation of the fraud by which Cantine had procured the notes to be given, though he was informed that the notes were given as a part of the purchase price of Cantine’s interest in the firm. But he knew nothing, so far as the evidence shows, of the actual condition of the firm, or of Cantine’s representations.

But it is insisted by. complainant’s counsel that, though Porter was innocent of all fraud in the transaction, he did not take the notes in the ordinary course of business, nor give value for them; that the debt of Cantine was not extinguished by giving up his notes, and that Porter might still sue Cantine on the original debt for which his notes had been given, and, therefore, that complainant’s notes in Porter’s' hands were subject to the equities existing between complainant and Cantine; and the New York cases are cited to the effect that a person taking negotiable paper for a precedent debt is not a holder for value, and that such paper in his hands is subject to the equities existing between antecedent parties.

But the rule established by these cases was directly repudiated in this State more than twenty years ago, in Bostwick v. Dodge, 1 Doug. (Mich.) R., 413, which established directly the contrary doctrine. This case has been uniformly recognized as law by this Court, and we are entirely satisfied with the correctness of the principle upon which it rests. The case now before the Court does not present precisely this question, though we think it rests substantially upon the same principle. .

This is a case of novation, or the substitution of one debtor for another by the assent of the three parties. Porter, at the request of both complainant and Cantine, gave up the notes and extinguished the debt of the latter, in consideration of receiving complainant’s notes and mortgage in their place. Cantine gave up and extinguished his claim against complainant, in consideration of complainant’s substituting his paper for that of Cantine to Porter. This, therefore, constituted a direct and original contract between complainant and Porter, founded upon a new consideration moving from Porter, the extinguishment of Cantine’s debt to him; and porter cannot be considered as taking upon himself the risk' of the sufficiency of the original consideration between complainant and Cantine. That was a question between complainant and Cantine only. Porter had a right to suppose that consideration sufficient, when complainant , was satisfied with it.

The decree of the Court below, making the injunction perpetual as to one of the notes, was erroneous. A personal decree was made against defendant Cantine for the payment of fourteen hundred dollars; but as he never was served with process, and never appeared in the canse, the Court below never acquired jurisdiction to affiect him by such a decree. And though he has not appealed, yet the decree, being merely void as to him, should be set aside.

Ihe decree as to both defendants must, therefore,, be set aside, and the bill dismissed, with costs in both Courts to the appellant.

The other Justices concurred.


author: •Campbell J.: Cooley J.:

text:
    Tobias Miller v. William O. Grandy, Sylvester H. Cranson and Joshua C. Griffin.
    Bounties, who entitled to, under the act relating to Jackson County. — The act to ■ legalizo the action of Llie several townships, etc., in the County of Jackson in paying bounties to volunteers, and to refund money to pay bounties (L, of 1865, p. 477,) can not properly be extended to cover any advance of money-made by individuals on their own account, and not on the credit or by the-authority of the municipalities.

      Township meetings, notice of — A general statute requiring a longer notice for Township meetings ia superseded for the time by a statute fixing a shorter notice for specific meetings for a particular purpose.

      Injunction to stay tax, toko entitled to, — An individual has no right, as a taxpayer, either in his own name or on behalf of himself and the other taxpayers to; file a bill to enjoin proceedings in advance of the actual levy of . a tax. He cannot eeok redress until his own tax can be ascertained, and ho cannot then proceed in equity except to protect his individual interests from injuries not remedial otherwise.
    Injunction, the right of a private person to, in redress of a common public grievance.— Privato persons cannot assnmo to themselves tho right to institute proceedings in1 chancery to redress grievances on behalf of the public. They can only proceed where their individual grievances are distinct from those of the public at large, and such as give them a piivate right to redress.
    'The only cases where individuals can sue on behalf of themselves and others, are where the interests, though numerous, are all separate, individual, and not joint or public interests, identical in character and origin, but all private and independent rights, springing out of the same transactions or fund.

      Heard November 2, 3 and 7.

      Decided November 11.
    Appeal in Chancery from Jackson Circuit.
    The facts appear in tbe opinion.
    ■James' X>. Gonely, for complainant:
    1. The meeting of the electors was void, for the xeason that less than fifteen days intervened between the time of making the order' by the Township Board and the time the meeting was therein directed to be held; also, for the reason that said order was made without any request in writing, signed by twelve electors, that a special meeting be called for tbe purposes designated in said order; and for that no copy of said order was posted by the Town Clerk of said town. — Comp. L., vol. 1, p. 231, §§25-26-27-28.
    Tbe words “legal meeting,” in laws of 1865, page 477, §2, have the same sense as, when used in the act referring to tbe powers and dirties ofhtownships; and •every statute must be so construed that no clause, sentence, or word shall be superfluous, void, or insignificant. — Comp. L., vol. 1, p. 227, §495-496; Smith on Stat. Con., 518.; People v. Burns, 5 Mich., 114, 117; Bishop

      on Crim. L., vol. 1, §70; Sears v. Cottrell, 5 Mich., 253.

      2. No, part of the money proposed .to be re-assessed was at any time yoted by the electors, or by the Town Board, as a bounty, either by tax, loan, or otherwise, but was money contributed by individuals to save themselves from the draft. This is a question of construction. The complainant contends that the words “ such sums' paid,” etc., must be restricted to those cases where the township has voted money, raised a tax, levied money, or issued bonds, and individuals have advanced or pledged sums of money upon the faith of such - township action. — Laws of 1865, p. 477, §1-2.
    The above view 'is strengthened by considering the word “ such,” in the second section, and the word “ other,” before “ ordinary claims,” in the third section. The word “ other ” clearly shows that the allowances intended by this act were in the nature of legal or equitable claims against the township. —Smith on Stat. Con., p. 656.
    Where, of two constructions, one is reconcilable with the performance of a public duty, and the other tends to divest individuals of their property, to be given to others, the first construction will prevail.- — People v. Gallagher, 4 Mich., 244; Woodbridge v. City of Detroit, 8 Mich., 276; Smith on Stat. Con., p. 263, 272.
    In the construction of an instrument, the whole of it is ^to be considered, and a construction of a detached part, without reference to the rest, is erroneous. — Norris v. Showerman, Walter's Ch., 206; Norris v. Showerman, 2 Doug. Mich., 16; Paddock v. Pardue, 1 Manning, Mich., 421.
    8. The act is unconstitutional.
    The Legislature shall provide an uniform rule of taxation, except on property paying specific taxes. — Constitution, Art. 14, §11.

      The county of Jackson forms but part of an enrollment district. This act undertakes to provide that this part of the enrollment district shall be subjected to taxation, from' which the other part is exempted. This is in violation of the above provision. — People v. Auditor General, 7 Mich., 84; Woodbridge v. City of Detroit, 8 Mich., 274; People v. Mayor of Brooklyn, 4 Comstock, 417.
    This tax applies only to the. county of Jackson, and is not uniform, even in Jackson county, because one town may have given larger bounties than another, and because there is no way of carrying out the act in the city of Jackson. — Cases above, and Laws of 1865, 29 and 30; Laws of 1865, 478; Laws of 1857, 240, et seq.

    Courts of Equity have jurisdiction to restrain the action of municipal bodies, when such action will be inequitable and injurious to the public interest. — Chaffee v. Granger, 6 Mich., 51.
    The Supreme Court has assumed that injunction is', the proper remedy. — Williams v. Mayor of Detroit, 2 Gibbs, 560; Lefevre v. Mayor of Detroit, 2 Gibbs, 586; Bagg v. City of Detroit; 5 Mich., 336; Woodbridge v. City of Detroit, 8 Mich., 276; Sisters of Charity v. City of Detroit, 9 Mich., 94; Jackson v. City of Detroit, 10 Mich., 248; Palmer v. Rich, 12 Mich., 414.
    Bill may be filed by a private individual. — Milhau v. Sharp, 27 New York, 611.

      W. BT. Gibson, for defendants:
    The bill- does not present a case of imminent and irreparable injury. The injury complained of is too remote, and may never happen. It rests on contingencies which may never occur. No tax had been levied, and there was ho cloud on complainant’s title. — 6 John. Ch. R., 497; 26. Wend, 135; 4 Barb., 9; 7 Barb., 508; 1 Barb. Ch. Prac., 609; 14 N. Y., 534; Walker’s Ch. R., 85.

      The 'complainant has no right to file a hill in behalf of himself and other tax-payers. Such a bill can be regarded in no other light than to protect the public interests, and must be filed by the Attorney General of the State. — Spooner v. McConnel, 1 McLean, 337; 18 New York Rep., 155; 32 Barb., 410; 14 New York, 534, 506; 6 Metcalf's Rep., 425.
    A Court of Equity will exercise its power with great caution towards municipal corporations. It will not even Testrain an illegal tax where the illegality is apparent on the face of the proceedings, and such as to render the tax void. Nor for manifest errors or irregularities, but only where a tax appears to be valid, but by some •extrinsic reason is void. Nor will a Court 'review the proceedings of such bodies on the ground of irregularity, but will leave the party to his writ of certiorari, or action at law. — 9 Paige Ch. Rep., 388; 6 John. Ch. R.,

    28; 4 John. Ch. R., 352; 1 Paige, Ch. R., 114; 26 Wend., 132; 14 New York, 534, 506; 33 Barb., 322; 20 Howard's Prac., 416; 24 New York, 345; 10 Paige Ch. R., 539; 4 Barb., 9, 17, 18; 3 Denio, 117; 25 Conn., 232; 3 Jones' Miss. R., 20; 22 Ill., 33, 574, 594.
    Neither will a Court of Equity interfere to prevent the levy and collection of a tax' out of goods and chattels. — 2 Mich., 584; 5 Rhode Island, 472; 4 E. D. Smith, 675.
    If it shall be determined by the Court that the •complainant has presented a proper case for the equitable interference of a’ Court of Equity, still the defendants insist .their action has been under, and in accordance with, an Act of the Legislature of this State, and that ¡such act is valid and constitutional, and its provisions ■are binding upon them.
    The proper construction of a statute depends upon the due observance- of the legal rules and maxims applicable to such .construction, among which are the following :

      ' The Legislature is presumed to intend a reasonable and beneficial construction of its acts. — Richards v. Daggett, 4 Mass., 534; Somerset v. Dighton, 12 Mass., 383; 7 Mass., 523; 23 Pick., 93; 22 Pick., 271; 24 Pick., 366; 3 Mass., 523.
    Such a construction ought to be given, if possible, .as will not. suffer the statute to be defeated. — 15 Johnson's Rep., 358.
    The whole of a statute must be considered to judge of its particular provisions. — 1 Pick., 248.
    A statute will not be declared void, tmless the necessity be clear, decisive, and unavoidable, and of two contractions, that which will render the statute good, is to be given. — 7 Clark, Iowa, 262; 2 Cowan, 550; 18 Mich., 320; 15 New York, 549.
    The Legislature has also the power to impose a tax upon the taxable property of a town, and appropriate the same to a payment of a claim by an individual of the town, and this conflicts Avith no constitutional restriction.— 3 Kernan, 143; 13 Pick., 60; 19 New York, 116; Law Reporter, September, 1865.
    The above authorities recognize a distinction between the right of taxation and the- taking of private property for public uses, or to give to another person.
   •Campbell J.:

Complainant, who describes himself as a resident taxpayer, owning real and personal property, subject to •taxation, in the Township of Napoleon, in Jackson County, files his bill in behalf of himself and all residents and taxpayers of that town, against the .members of the Town Board, to restrain them from allowing any .accounts of individuals for money pledged or advanced for bounty and enlistment purposes, and to restrain the -clerk from issuing orders on said accounts, if allowed, and the supervisors from inserting any amount so allowed on the assessment roll. 'The case comes up on demurrer.

An act was passed by the Legislature of 1865, entitled “An act to legalize the action of the several townships, city ancl wards in the County of Jackson in paying bounties to volunteers, and to refund money to pay bounties. — I. 1865, p. 4'7'7. Under this act a vote of the Township of Napoleon was had, to refund bounties, as provided for by the act, at a meeting which the. complainant claims to have been irregularly called. He further states that a number of persons had conti’ibuted to procure enlistments of volunteers and substitutes, to avoid the necessity of a draft, 'to the amount of from seven thousand to eight thousand dollars, none of which was voted by the electors or Town Board, by way of tax, loan, or otherwise; that the Board have appointed a meeting, and intend to allow all of these claims as valid, and that the clerk intends to draw negotiable warrants, and the supervisor to insert the amount when certified upon the tax rolls. He claims this action will injure the taxpayers, by clouding their titles, or compelling them to pay such illegal assessments, and prays for an inj unction.

The notice of the meeting was more than six days; and as that is the time required by the statute for this particular purpose, the general statutes, fixing a different time, are pro tanto suspended. The want of a preliminary request is not stated in an issuable form, and need not, therefore, be regarded. Neither does the bill aver that no moneys had been advanced on township action, but only that some moneys, not so advanced, are. intended to be paid by the Board.

We' cannot suppose that the Legislature, by this statute, designed to provide for such advances as were made by individuals acting on their own behalf, and paying or pledging money for purposes determined upon by themselves entirely. Such a purpose is somewhat foreign to. the title of the act, regarded as aimed at one specific purpose, and not two discordant purposes; and the dirties imposed upon the town clerks .of ascertaining-, before the meeting, the amount of money advanced, would be impracticable, if the advances were on private' account. The act was evidently aimed at enabling townships to adopt action, which was in some way taken on the faith of their future ratification, if it should be permitted, and not to open the door to the allowance of such claims as might arise ■ from the unchecked and irregular action of persons, in no way conforming to any rule or measure adopted or sanctioned by the general authority. We are not at liberty to give to a statute a meaning which would allow taxation for purely private purposes, when. a public purpose is apparent. Patriotism, and a desire to maintain the Government, by furnishing forces, speedily and efficiently, may very well be accepted as a duty by municipalities,- as well as by individuals; ■for every part of the commonwealth is interested in the public safety. But when individuals act on their own account, they must be considered as doing what they are willing to consider "their own part towards the public welfare, and they cannot shift their voluntary burden upon others. Whether they have been impelled by interest (or by devotion, 'their private contributions occupy the same position with their other personal expenditures. When we find a statute clearly requiring any municipality to pay the private disbursements of its citizens, we shall be prepared to decide upon its validity; but we will not do such discredit to the Legislature as to assume such an intention where it is not unavoidable.

The bill, then, assumes that the complainant is likely to be damnified, because a Town Board, authorized to act upon one class of claims, intends to act upon another class, which the law does hot permit to be Recognized.

It is a point which should not be entirely overlooked, that this statute provides for action only during the year 1865. Unless carried into effect, so as to have the claims allowed in time to be certified on or before the first Monday of October, there is no provision made to permit" such action at all thereafter.

. The case has been presented on two grounds: First, upon the special interest of complainant, in protecting his own taxable property; and, second, upon the interest which he sets up in common with all taxpayers.

If this case is properly framed as a suit merely on his private behalf, for special damage apprehended to himself, (and whether it can be so considered is more than questionable,) we are called upon to determine whether his ■ complaint is within the reach of equity. Before the extraordinary relief of an injunction against the action of municipal boards, in their public capacity, can be granted, where it will at all interfere with their strictly public functions, a Court of Equity must have full allegations of the precise rights which will be injured, and must see that without its aid an injury will result which cannot be adequately remedied otherwise. "When such a case arises, public considerations may interpose serious obstacles, which may even then prevent interference. We think that, in the present case, there are some fatal obstacles to relief, on the theory of the bill now under consideration.

Without undertaking to go into any elaborate discussion of all the questions which might arise, we feel confident that no case can be found which recognizes any propriety, in enjoining the preliminary proceedings, in advance of the actual levy of a tax, on either personalty or realty. Apart from the palpable difficulty of determining in advance whether the complainant will be in a condition to be injured when the tax is assessed,, it is always to be remembered that, under our system, taxes must be provided for at regular times, and by annual and somewhat' rapid proceedings. They are assessed against entire districts at once; and the staying of proceedings, on behalf of one person, stops .the' rev-, enue system of the entire community. Before a suit in chancery could be regularly brought to a hearing- > on proofs in the Circuit Court, (to say nothing of the hearing on appeal,) the time for action by the local officers would have gone by. No Court could ever be justified in such an interference with the necessary course-of government. After a tax has been assessed and be-, comes collectable, each man’s share becomes severable from the rest; and delaying its payment will not necessarily operate upon his neighbors. When his land is in danger of 'being affected by a cloud upon its title, a sufficiently clear case ' will then enable him to be relieved. — Palmer v. Rich, 12 Mich. R., 414. But until that danger arises he cannot ask protection; and where, nothing but personalty is concerned, the circumstances must be very peculiar which will warrant equitable interference. These principles are familial-, and rest on good sense and sound policy. The present case is an excellent illustration of the necessity of this rule;, for,, before it had been argued in this Court, the Town Board had lost all power to proceed; and, had an, injunction been granted and kept alive up to this time,, a decision in favor of the authority of that body would, not have aided them at all. , Their whole functions, in respect to the proceedings complained of, would have been destroyed without any hearing on the merits. Such results demonstrate the impropriety of any inter-, ference, while their preliminary action has not been consummated.

We will next consider the. case in the aspect which we think is its proper one, as a suit to protect the public interest.

The complainant does not set up any grievance which is not of the same nature with the grievances impending over the rest of the community. The injurious attempt which was threatened, is- a public grievance of the same nature as a threatened public nuisance. It affects alike every taxpayer. It is an expected piece of official misconduct, whereby the municipality in the charge of the official persons will be made to suffer by their ill behavior. If the case made by the bill can be considered as a joint agreement to violate what they suppose to be the law, it would be an indictable conspiracy. If not designedly illegal, it would be a mistake committed in the exercise of duty, which would be void if exceeding their jurisdiction, but which, if not an excess of jurisdiction, must be corrected by such means as the law may have furnished for that purpose. And if no such means have been furnished, it must go uncorrected, and each private injury resulting must be remedied by itself.

This bill can only be sustained by holding that every private citizen has the right to call public officers to. account for their official misconduct, affecting the body politic,' and not specially one man more than another. There were a few cases decided in the Supreme Court of New York which recognized such a right; but they have been overruled repeatedly, and the doctrine is now well settled that a private taxpayer, suffering under no special grievance, is not even a proper party to a bill filed to restrain threatened misconduct. — Davis v. Mayor of New York, 14 N. Y., 506; Doolittle v. Supervisors of Broome County, 18 N. Y., 155; Roosevelt v. Draper, 23 N. Y., 318. The same doctrine had been laid down, in Hale v. Cushman, 6 Met. R., 425.

A similar principle was affirmed by this Court in the ■cases of The People v. Regentsv of the University, 4 Mich. P., 98, and The People v. Inspectors of the State Prison, 4 Mich. R., 187. These were mandamus eases, but the principle applies still more forcibly to suits in equity, where a suit pending on behalf of the public interest might prevent the commencement of any other suit covering the same ground. It is easy to perceive what a door would be opened to fraud and collusion, if any individual might shape such a litigation to suit himself. The cases on which the New York Supreme Court decisions were based were cases of trust . of a private nature, or private rights of common or of a similar character to these, where numerous persons were individually interested, and where their interests grew out of one transaction or fund. -To prevent a multiplicity of ^.uits, and to relieve against the inconvenience of a multitude of parties, Courts of Chancery have sometimes allowed . representative suits to be brought to test the right or relieve against the grievance, which was not in any sense a joint or common one, but simply one in which all the several interests were identical in character.

The interests of men in good, government are joint and not several. The single voter or taxpayer has no voice in publio affairs. He can only exercise his influence as one of a lawful majority, and then only by his vote.' The men whom he aids in electing, or who are elected in spite of him, represent the common will, which is the only will that governs. And 'grievances which afflict the community must be redressed by those to whom the law has intrusted the duty of interference. There are some evils which cannot be redressed at all, because the discretion of the officers producing them cannot be reviewed, and the people must bear the consequences of .selecting such ' servants. But whenever redress is attainable, it must be sought for by some other minister than a self-appointed private party, in whom the people or their agents have not vested any _§,ueh supervisory power.

The demurrer was properly sustained. The decree-must be affirmed, with costs.

Martin Ch. J. and Ciiristiancy J. concurred.

Cooley J.:

I concur in the opinion of my brother Campbell,, that the bill does not make a case of equitable cognizance, and that the decree of the Court below must be affirmed for that reason. The true construction of' the statute in question seems to me somewhat doubtful, and I prefer to express no opinion regarding it.


author: Cooley J. : Campbell J.,

text:
    Archibald Young v. Catharine McKee and Frederick McKee.

      Foreclosure of mortgage by assignee thereof — proof of assignment. —Where in a hill for foreclosure of a mortgage the complainant averred the mortgage to have’ been duly assigned to him, and tho answer of the defendants was silent on tho point, and based the defence solely on tho ground of the infancy of the mortgagor, and thore was no evidence of tho assignment except that contained in the record of a prior cause, which was put in evidence by consent, wherein the former owner of tho mortgage had testified that the mortgage was assigned to tho complainant; the Court held that under «tho circumstances complainant was entitled to the most liberal construction of the,- evidence as to the assignment, and no objection to such evidence having been made for incompetency, it was sufficient to establish the fact of the assignment. .

      Mortgage by infant — Affirmance. — “Where land is conveyed and a mortgago taken back for the purchase money, the deed and mortgage together constitute but one transaction, and tho titlo only passes by the deed subject to the mortgage. And whore the grantee in such case is an infant, ho may disaffirm tho deed on coming of age, but by retaining tho land he affirms the mortgage.

      Practice — Production of notes and mortgage in foreclosure suits. — In a suit for tho foreclosure of a mortgage, no decroo should be rendered without the production in court of tho notes and mortgage, as evidence of oomplainant’s. right, or an excuse shown for not doing it.

      Foreclosure —notes and mortgage not produced — correction after appeal, — "Where on an appeal from, a deoree of foreclosure it appeared that tlio notes and mortgage were not produced and filed in the Court below, this Court, in affirming the decree, ordered that before entering such decree the complainant should produce and file these papers in this Court; or, if they were lost, should satisfactorily account for them by affidavits.

      Heard October 12.

      Decided October 31.
    Appeal in Chancery from St. Clair Circuit.
    The facts are sufficiently stated in the opinion.

      Conger & Ha/rri$ and William T. Mitchell, for complainant.

      D. C. Holbrook, for defendants.
   Cooley J. :

The complainant filed his hill to foreclose a mortgage given hy the defendant Catharine McKee to Maleom Cameron, for the difference between certain lands exchanged by said Cameron with Frederick McKee, the other defendant. McKee, instead of taking a conveyance of the Cameron lands to himself, caused them to be deeded to said Catharine, who is his wife; and she united with him in notes for the difference agreed to be paid to Cameron, and the mortgage in controversy was given to secure these notes. In the bill, complainant avers that the mortgage and notes were assigned by Cameron to Henry Wilcox, and by said Wilcox to complainant; and ho claims the benefit of' an equitable lien on the premises as fully and completely as though no mortgage had been executed.

Frederick McKee has allowed the hill to be taken as confessed by him; but Catharine appeared and answered, admitting the execution of the notes and mortgage, but averring that she was at the time an infant, and she now disaffirms the same, and claims the benefit of a demurrer to all that part of the bill which claims a lien on the premises. The answer is silent on the subject of the assignments. The Court below adjudged an equitable lien to exist for the purchase money represented by the notes and mortgage, and the defendant Catharine appealed.

It is objected in this Court that the record discloses no proof of any assignments of the mortgage and notes, and consequently complainant has failed to establish his title thereto. It is very apparent from the record that the contest in the Court below was on the question of infancy alone; and the answer making no response to the allegations of the bill relative to the assignments, it is quite probable that the rule that nothing is admitted by an answer in chancery unless expressly admitted, (Morris v. Morris, 5 Mich., 171; Morris v. Hoyt, 11 Mich., 9,) was overlooked by the complainant’s counsel. Indeed, the answer was well calculated to lead the opposite party to suppose that no question was to be made of complainant’s right to the papers ; and we think, therefore, that he is entitled to the most liberal construction of any evidence appearing in the case bearing upon that point.

The only evidence which appears is contained in the record of a prior cause, wherein Mrs. McKee was complainant, and Henry Wilcox and Asa D. Dickinson were defendants, which was put in evidence by consent. In that case, Wilcox was sworn as a witness; and in speaking of the mortgage now in controversy, he said: “ I subsequently became the owner of the Cameron mortgage, and I sold it, and proceedings have been' taken to foreclose it.” Again, he says: “The mortgage .was assigned to Mr. Young, as security for whatever I traded with him.” No objection was made to this evidence for want of competency; and as a sale with mere delivery would' have passed the mortgage title, (Dougherty v. Russell, 3 Mich., 581,) we may fairly consider this evidence sufficient to show the transfers, provided it satisfactorily identifies the last assignee. The only difficulty in that respect is, that Wilcox, 'in his testimony, had named two Mr. Youngs — Archibald and E. J. — and he does not positively indicate which of the two was his assignee of this mortgage. In the same connection, however, he speaks of another mortgage being transferred to Mr. Young — evidently referring to .the same' Mr. Young to whom he had assigned; and as, in another part of his testimony, proceedings in chancery in reference to that mortgage are mentioned, to which Archibald Young is á party, the inference that he is the person intended at this point is so strong that we think we are warranted in acting upon it in this case. If defendant doubted his being the real assignee of the demand, she had an opportunity to make the proof more definite upon the point; but having waived any contest in regard to it in the Court below, and left the other party to' suppose that she was satisfied in. that particular, we do not think she has a right to require us to bo very critical in our examination of the evidence on this appeal.

The question upon the merits is, whether complainant has any lien upon the premises described in the mortgage for the amount due on the notes. The evidence establishes the fact that Mrs. McKee was under the age of twenty-one years when the mortgage was given, and by her answer she places herself in the position of •claiming the benefit of the deed which conveyed the land to her, and at the same time repudiating the mortgage. The Court below arrived at the conclusion that if she thus disaffirmed the mortgage, the vendor’s equitable lien must be regarded as attaching to the land, and that it might be enforced in favor of complainant in this suit.

If, in fact, the mortgage is disaffirmed by the answer, there is considerable authority in favor of the conclusion of the Court below; and there is also very much authority against it. We do not think it important, however, to go into an examination of the question, as we are satisfied the mortgage is affirmed by the conduct and answer of Mrs. McKee, and that a decree should be entered upon it for the amount due.

Where land is conveyed, and a mortgage taken back for purchase money, the deed and mortgage together constitute but one transaction, and the title only passes by the deed subject to the mortgage. It is upon this principle that a wife need not sign a mortgage given for purchase money, since the right of dower only attaches to the equity of redemption. If the grantee in the deed is an infant, he has an undoubted right to disaffirm the purchase on coming of age; but he cannot disaffirm it as to that part which imposes a burden upon him, and affirm it in so far as he reaps a benefit. Mrs. McKee, who is now of age, sees fit to affirpi the deed and retain the land; and by so doing she affirms the mortgage also. — Lynde v. Budd, 2 Paige, 191; Altman v. Mock, 3 Sandf. Ch., 431; Bigalow v. Kinney, 3 Vt., 353; Richardson v. Bright, 9 Vt., 368; Robbins v. Eaton, 10 N. H., 562; Hubbard v. Cummings, 1 Greenl., 11; Dangs v. Coombs, 6 Greenl., 89.

There is an omission in the proceedings of the Court below, which was not pointed out on the argument, but which we deem it proper to mention, as the question of practice is important.. The notes and mortgage do not seem to have been produced and filed in the Court when the decree was rendered. The omission may have occurred in this case in consequence of the answer’s admitting the notes and mortgage, so that a reference to a commissioner, and a report from him, were dispensed with. But this evidence of conqrlainant’s right at the time the decree is rendered should always be given, or an excuse shown for not doing it; and, before entering final decree, we shall require the complainant to produce •and file these papers in this Court; or, if they are lost, or for ány other reason cannot be produced, to satisfactorily account for them by affidavit. When that is done the' decree may be entered, in substance affirming the decree of the Court below, though modified in its recital to correspond with this opinion; awarding costs of both Courts to complainant, and' remitting the cause to the Court below for further proceedings.

Martin Ch. J. and Chbistiancy J. concurred.

Campbell J.,

dissenting :

I concur in the opinion that the land in the hands of Mrs. McKee is held subject to the purchase money incumbrances. But while the objection to the want of proof of the assignment of the note and mortgage is, under the circumstances, not peculiarly meritorious, I do no.t think we can avoid its force. The bill alleges written assignments from Cameron to Wilcox, and from Wilcox to Toung. Parol proof is not admissible to establish these, and especially so where- the proof is ambiguous. But aside from this, I deem the rule requiring the .documentary proof of right to be produced before decree to be something more than a technical one. The Court should have the papers before it, in order to be 'sure that the right continues in the complainant. If this is so, it should have been made an exhibit to ontitlc. it to be read at the hearing in the Court below, as I doubt very much our right to act upon what was not before that tribunal. I should be glad to concur with my brethren in what I feel' to be no more than justice, if I could see my way clear to allowing the omission in proof to be corrected here.