source: Caselaw Access Project

author: Cooley J.

license: Public Domain

text:
    John Heffron and Samuel A. Parker v. The M. S. and N. I. R. R. Co.
    Case brought up for review from Wayne Circuit.
    This cause was heard with the McMillan case (ante p. 79,) on stipulation; and which, see.
    Judgment was rendered for defendant.
   Cooley J.

The principles laid down in the case of McMillan against these defendants will require an affirmance of this judgment. The bill of lading in this case was given by the Baltimore and Ohio Railroad Company, and by its express terms was to govern the transportation to Detroit. Liability for loss by fire was expressly excepted.

The other Justices concurred.


text:
    Robert W. King v. The M. S. and N. I. R. R. Co.
    Case brought up for review from Wayne Circuit.
    This cause was heard with the McMillan case (ante p. 79,) on stipulation.
    Judgment was rendered for defendant.
   Cooley J.

Under the principles laid down in the case of McMillan against these defendants, the plaintiff I think should have judgment for the value of the nine boxes and one barrel of glassware sent from Pittsburgh, on the ground that the bills of lading given by the Cleveland and Pittsburgh Railroad Company only covered the transportation to Cleveland. The plaintiff was only notified of their arrival at 4 o’clock in the evening of the fire; about two hours before the time when defendants are accustomed to close their depot. The defendants are not liable for the other shipment from Pittsburgh, nor for the goods purchased at Boston, which were forwarded under a bill of lading covering the whole transportation, and exempting the carriers from liability for losses by fire. As the amount for which defendants would be held liable is' less than one hundred dollars, the judgment for costs in their favor in the court below, I think, was correct —Strong v. Daniels, 3 Mich. 466; but they should pay the costs of this court.

Christiancy J. concurred.

Martin Ch. J. and Campbell J. holding otherwise, according to their views expressed in the McMillan case.

The judgment below was affirmed by the division.


author: 'The court

text:
    The People ex rel. F. H. White v. Hermanus Doesburg.

      Quo warranto: Jury tried. When an issue in quo warranto is sent down to the Circuit Court to be tried, the parties cannot be deprived of a jury against their consent.

      Heard and decided October 16th.

      Quo warranto.

    The information was filed in this cause to test the right of respondent to the office of clerk of the County of Ottawa. The issue involving a question of fact, to wit; whether some twenty-four votes cast in the township of Spring Lake in said county, and counted for respondent, were legal or illegal, was referred to the Circuit Court for the County of Ottawa for trial.
    On the trial of the issue a jury was duly demanded by respondent; but which demand the Circuit Judge refused to grant, on the ground that the case had been referred to the court for trial.
    It was contended by counsel for respondent upon the calling of the case that it. should be referred back to be tried by a jury.

      Moore é Griffin and T. B. Church, for respondent, cited

      Const, of Mich. Art. 4, § 27; 1 Comp. L. 1861; Sess. L. of 1859, p. 150, § 1; 2 Comp. L. § 4346.

      Wm. L. Stoughton, Attorney General, and J. Baker and Geo. Gray, for the People.
    An issue of fact was found in this cause on the third day of May, 1867, and an order made transmitting it to the Circuit Court for the County of Ottawa for trial. The return of that court shows that a trial was had and a finding entered in favor of the relator; and which is returned with the evidence in the cause to this court.
    The first question raised by the record is whether the defendant, under the order referring the case to the Circuit Court for the County of Ottawa for trial, was entitled to a jury. The language of the order is as follows: “That this cause be referred to the Circuit Court for the County of Ottawa for trial; and it is further ordered that said Circuit Court transmit the evidence taken on such trial, together with his findings and opinion thereon to this court.” Can it be claimed under this order that the defendant is entitled to a jury trial? We think not. It is clearly referred to the court to try the case and report his findings and opinions; not the verdict of the jury. No objection having been made to this order, the right of a trial by jury must be deemed to be waived.— Const. Art. 6, §27; Sess. L. 1859, 150.
    But in any event the defendant cannot avail himself of this objection in this cause, for the record does not show that he demanded a jury “at or before the first call of the calendar.” — Bule 61.
    It must affimatively appear that there was error. — 4 Ham. 81; 1 Aik. 24, 380.
    In quo warranto cases the decisions of the court below are to be reviewed upon the principles applicable to civil actions, and not by those which prevail in criminal proceedings when the latter differ from the former. — 4 Seld. 67.
   'The court

held that it was not in its power, and was not intended, to deprive the party of his right to a trial by jury; and that the court below erred in not allowing it. The finding was therefore set aside and a new trial by jury ordered.


author: Campbell, J.

text:
    Daniel M. Hall v. John G. Kellogg.

      Illegal assessment: Agricultural Society. Under the statute, Comp. L. § 168?, a tas to be raised for agricultural societies can only be ordered by the. supervisors when they have been informed by the sworn certificate of the proper officers of the society that at least $100 had been raised by the society.
    Where an assessment for such purpose was made without such proof, it was void, and rendered a sale of land for taxes invalid.

      BUI to quiet title: Presumptive proof of complainant's title: Possession. In a suit to quiet title under the statute, 2 Comp. L. § 3490, complainant is only bound to make out a case as against the defendant, and will not be required to make proof of title beyond that which, when establishing a presumptive case, has not been met by any proofs adequate to shake or destroy it.
    Proof that a deceased person occupied land several years, and died in possession, is presumptive evidence of seisin in favor of his heirs or of purchasers from his estate; a fortiori in resisting a tax title set up under an assessment levied against the estate of the deceased by name.

      Presumption of existence of public records. The law presumes that all officers intrusted with the custody of public files and records, will perform their official duty by keeping the same safely in their offices. If a paper is not found where, if in existence, it ought to be deposited or recorded, the presumption therefore arises that no such document has ever been in existence. —Platt v. Stewart, 10 Mich. 260. Until this presumption is rebutted, it must stand as proof of such non-existence.

      Heard October 12th.

      Decided October 22nd.

    Appeal from Allegan Circuit in Chancery.
    The bill in this case was filed by complainant, who was in possession of the premises, to quiet his title. The defendant relied upon a tax sale.
    A decree was made in favor of complainant.

      The facts are stated in the opinion.

      Henry C. Briggs, for complainant.
    1. The complainant having made out a presumptive title, it is good until rebutted. —2 Comp. L. § 3460.
    2. The tax title under which defendant claims, is void.
    The $300 appropriated to the agricultural society was unauthorized.
    There was no certificate or other evidence presented to the Board of Supervisors that the agricultural society had raised one hundred dollars, or any other sum. The statute requires such certificate of the president and secretary of the society: without' this evidence the assessment was void. — Comp. L. § 1687.

      C. I. Wallcer and W. B. Williams, for defendant.
    1. The complainant has failed to establish any title to the lots in question.
    While naked possession is sufficient evidence of ownership as against a mere wrongdoer, as in an action against a trespasser, yet ordinarily in the possessory action of ejectment, the plaintiff must prove something more than a naked previous possession — he must prove, also, a claim of title. — 1 Saund. PI. and Ev. 998; 4 Johns. 210; 5 Cow. 200; 7 Wheat. 59.
    But in this class of cases, where the defendant has not disturbed the possession of the complainant, where the former is no wrong doer, the complainant must go farther, and, in the language of the statute, must “establish” his title, and this must be done by clear and satisfactory proof of such title. — 2 Comp. L. § 3490; 1 Douglas {Mich.) 546, 565, and 575; 32 Miss. 268; 33 Id. 292.
    2. But if the complainant has prima facie established his title to the premises in question, we insist that he has failed in proving the tax title under which, we claim (being for a sale for taxes of 1859), to be void.
    It is claimed that the taxes levied for 1859, upon the land in question, were excessive and illegal, in that the county tax is excessive, because it includes the sum of $300 appropriated to the county agricultural society without the proof, required by the statute, that such society had raised the sum of $100 for said year, 1859, or any other year.
    The Board of Supervisors are required to levy a certain tax on a certificate being furnished them by the president and secretary of the society under oath, that $100 or more had been raised. — 1 Gomp. L. §1687.'
    We submit that the complainant has utterly failed to prove that any taxes were levied for the purpose named.
    At most it was a mere misappropriation of money, not to be paid out of the tax for 1859, but out of any moneys that might be on hand at any time; and this would not vitiate the tax. —13 Mich. 414.
    But we submit that the complainant fails to show that the proper certificate of the agricultural society was not furnished to the Board of Supervisors.
    They prove by the county clerk that he can find no such certificate among the files — but his evidence shows that these files are very loosely kept.
    We think, under these circumstances, they should have gone farther, and proved that no such certificate was furnished. This they attempted, and have failed to show. The clerk of the agricultural society, whose term expired on the 29th of September, 1859, testifies that he famished no such certificate; but his successor, who held the office when the Board of Supervisors met in the following October, was not sworn.
    3. But if we have failed in this, yet if the complainant has not established his title, the result will be the same; the objections to the complainant’s tax title of 1858 being the same as those urged against the tax title of 1859.
   Campbell, J.

Complainant filed his bill in the Allegan Circuit Court to set aside a claim of defendant to certain lands, which complainant alleged he owned in fee, and of which he was also in possession.

Complainant’s title consisted of a purchase from the estate of William Tyler, deceased, who had possessed and occupied the land for several years before his death, and also of a quit claim from defendant to his grantor of a tax title for 1858. The bill alleged defendant’s claim to be under a tax title for 1859, in which year the land was assessed to Tyler’s estate, and in due time sold and conveyed by the Auditor General as delinquent. This latter tax title is alleged to be invalid for several reasons, which will, so far as may be necessary, be referred to.

A preliminary objection, however, is urged against any decree, on the ground that complainant has made out no more than a presumptive title, and that the statute requiring in such cases that the title be established cannot be satisfied by anything short of an indefeasible title distinctly made out.

If a bill under the statute in question could be filed against all possible parties, so as to make the decree operate as a decree in rem, to quiet the title against all the world, there would be great force in this objection, and it would be necessary to decide what amount of proof would suffice to shut out any adverse presumptions or possibilities. But we have already decided in Hunton v. Platt, 11 Mich. 264, that a bill seeking to bring in defendants having distinct and disconnected adverse claims would be multifarious. No claim can be litigated by complainant in this cause, except such as may be asserted by the defendant. The decree cannot be binding against strangers to the titles and parties in this-suit. . We can see, therefore, no reason for requiring of complainant any proof of title beyond that which, when making out a presumptive case against the defendant, has not been met by any proofs adequate to shake or destroy it.

The title made out here is good until rebutted. Tyler is shown to have occupied the land for several years, and to have died in possession. Complainant, as purchaser from the estate, is entitled to all the rights which would belong to an heir or devisee. Proof of the seisin of the decedent is prima facie evidence of his title in fee.— Buller’s N. P. 103; Adams Eq. 281; Day v. Alverson, 9 Wend. 223. And in the present case defendant’s tax title is deduced under an assessment laid against the premises as resident lands belonging to Tyler’s estate. We think that the title thus shown is sufficient, until proof is introduced tending to invalidate it. Complainant has, further, such aid as is derivable from the tax deed for 1858, which, however, it is not necessary to consider, as the title of defendant, if invalid, does not destroy complainant’s rights, but, if regular, supplants them all.

The deed of 1859 is alleged to be vitiated by several illegalities in the assessment and subsequent proceedings to levy the taxes, most of which are sought to be proved by the omission of the certificates and records required by law to sustain them. It appears, among other things, from the certificates and evidence of the proper officers, that these papers are not, in some instances, to be found in their offices, and that no knowledge is possessed of their existence at any time.

Thé law presumes that all officers entrusted with the custody of public files and records, will perform their oficial duty by keeping them safely in their offices. Where a paper is not found where, if in existence, it ought to be deposited or recorded, the presumption therefore arises that no such document has ever been in existence.— Platt v. Stewart, 10 Mich. 260. Until this presumption is rebutted, it must stand as proof of such non-existence.

We do not deem it necessary to refer at large to all the defects relied on. There appears, among other things, a tax raised for the benefit of the county agricultural society, which could only be ordered when the Supervisors had been informed, by the sworn certificate of the president and secretary of the society, that $100 at least had been raised by the society.— Comp. L. § 1687. No such certificate can be found, and no evidence is given tending to show its existence. The proofs show conclusively that this money for the agricultural society was-included in the sum ordered to be levied by the Supervisors, and being illegal it vitiates the sale.

Without referring to the other questions presented, we think this defect avoids the deed. A similar defect exists in the complainant’s tax deed for 1858, but as his title is good, independent of that, the failure is not material.

The decree below was correct in granting the relief prayed for, and must be affirmed, with costs.

CHRiSTiANCY'and Cooley JJ. concurred.

Martin, Oh. J. did not sit.


author: Christiancy J.

text:
    Elizabeth Porritt v. Joseph Porritt.

      Divorce: Habitual drunlcard. Tlie statute — Comp. Laws, §3227 — provides that a divorce may be granted when either party “shall have become an habitual drunkard.” To bring a case within the full intention of this statute the defendant must have become an habitual drunkard after the marriage.
    Whether the complainant’s ignorance of such habits at the time of the marriage, would authorize a' divorce, qumre.

    Heard, October 15th.

      Decided October 22th.

    Appeal in Chancery from Wayne Circuit.
    The bill in this ease was filed to obtain a divorce on the ground of cruelty and habitual drunkenness.
    The defense set up was that defendant was an habitual drunkard when complainant married him, and that she knew it.
    A decree was made in favor of complainant.

      J. Logan Qhipman, for complainant.

      Ward & Palmer, for defendant.
   Christiancy J.

The bill in this case prays for a divorce on two grounds:

First, that the defendant has become an habitual drunkard; and Second, on the ground of extreme cruelty.

It is conceded that the evidence fails to sustain the charge of cruelty.

The answer partially admits, and the evidence fully establishes, tbe charge of habitual drunkenness. But tbe answer insists, and tbe evidence, we think, shows that bis habits in this respect were substantially tbe same prior to tbe marriage, and that complainant was well aware of this when she married him.

If tbe mere fact of habitual drunkenness without reference to tbe time of its commencement, or tbe complainant’s knowledge of it, be recognized as a sufficient ground for a divorce, we see no reason why she might not have filed her bill on tbe same ground on tbe day of tbe wedding. Nor, if this bill can be sustained, can we see any good reason why we ought not to have sustained it, bad she come directly from tbe wedding into court, and presented her bill, alleging that she bad just married a man knowings him to be an habitual drunkard, and asking tbe court to grant her a divorce, because she bad changed her mind and repented of her folly.

Judging from tbe evidence before us, we are not disposed to deny that tbe welfare of tbe parties might be promoted by a divorce; but we think tbe statute gives us no power to grant it upon tbe facts of this case.

Tbe statute gives tbe power on tbe ground of drunkenness, only when tbe defendant “ shall have become' an habitual drunkard.” To bring a case within tbe fair intention of this statute, we think tbe defendant must have become an habitual drunkard after the marriage; unless perhaps, when his habits have been concealed from the complainant’s knowledge until after the marriage, a point upon which we express no opinion, as it is not before us.

The decree of the Circuit Court granting a divorce must be reversed, and the bill dismissed.

The other Justices concurred.


text:
    John Pitcher v. The People.

      Burglary: Barn. The information charged that the defendant feloniously and burglariously, in the night time, entered a dwelling house and stole certain wool.
    The proof tended to show that the defendant entered the barn of complainant, &c., and which was a part of the outbuildings used and occupied by the family for domestic purposes. As the statutory definition of burglary was the same as that of the common law, it must be assumed, in the absence of any further provisions to *the contrary, that the statute designed no change in the offense, and, at the common law, a barn situated as. this was, would be included under the designation of dwelling house.

      Simple Larceny: Satisfaction: Burglary. The Statute, 2 Comp. L. §5765, provides that, upon a first conviction for the offense of receiving stolen > goods, knowing them to have been stolen — when the act of stealing was “ a simple larceny ” —if the person so convicted shall make satisfaction to the injured party he shall not be sentenced to state prison.

      Held, that this statute only applied to those cases where the crime was one of simple stealing, and did not extend to more aggravated ofthnses, whether punished under the designation of larceny or not.

      Accomplice: Privilege on cross-examination. When an accomplice consents to be used by the prosecution as a witness, while he is compelled, on cross-examination, to testify fully concerning the transaction under investigation, he cannot be forced to testify as regards his criminality in other cases.
    Heard, October 16th.

    Decided, October 22nd.

    Error to Lenawee Circuit.
    The information in this case charged Pitcher with burglariously entering a certain dwelling house, with intent to steal, etc. The proof tended to show that the building entered was the complainant’s barn, and that the same constituted one of the outbuildings belonging to the dwelling, and that Pitcher stole certain wool therefrom.
    It further appeared that, after conviction, Pitcher made full satisfaction to complainant for the value of the wool, and that he then claimed that under the statute providing for satisfaction made in- cases of simple larceny, that he could not be sentenced to state prison.
    On the trial, one Newman — the confederate of Pitcher — on cross-examination, testified to the commission by him of other offenses, and when asked in regard to the larceny by him of certain harness on the night of the burglary, he claimed his privilege on the ground that his answer would tend to criminate him, and which was sustained by the court.
    Pitcher was convicted, and sentenced to state prison.

      G. A. Stacy, and W. W. Osborn, for plaintiff in error.
    1. Accomplices are admitted to give evidence under an implied promise of pardon, on condition of their making a full and fair confession of the whole truth: that is, of all the offenses of which they might be questioned, and of all their associates in guilt.
    They are not restricted to the crime under investigation. — 9 Goto. 707; 4 Mich. 423; 2 Buss, on Gr. 958, note “ a.”
    2. The barn was not within the yard, though located on one side of, and forming by itself a part of the fence enclosing the house-yard. It was not a part of the dwelling house.— Corny. L. §§5747, 5754-’58; 1 Buss, on Gr. ( 7 Am. Ed. 798, note); Whart. Am. Gr. L. § 1562; 1 Bish. Gr. L. 170, citing the Eng. Stat. 7 and 8, Geo. 4, ch. 29, § 13; 20 N. Y. 52.
    3. But the sentence of the court was clearly wrong. The defendant had made satisfaction to the party injured, to the full value of the property stolen, and, by section 5765, the court had no authority to imprison him in the state prison.
    The act of stealing the property was simple larceny. It was not a case of compound larceny provided for by our statute.
    Reed might have been convicted of burglary for breaking with intent to commit the crime of larceny, but if prosecuted for the act of stealing the property, he could only have been convicted of and punished for a simple larceny.
    The sentence was therefore void, and the defendant must be discharged, and there can be no new trial in this case, nor a new judgment rendered.— 8 Mich. 117, 125, 537; 3 Id. 207-T3; Id. 365; 2 Met. 419; 5 B. and G. 395; 7 Ad. and El. 58.

      Wm. L. Stoughton, Attorney General, for the People.
    1. The consent of the witness to answer questions relating to the subject under investigation, would not bar his right to decline to answer others relating to other crimes committed by him. — 19 Ves. 295 ; 5 G. and P. 214; 2 Phil. Ev. 935; 1 Denio. 319; 4 Mich. 414.
    2. Where burglary is committed in any out-house which is, by law, considered part of the dwelling house, it must still be laid a¡I done in the dwelling house.— 1 Whart. Gr. L. 1609 ; 2 East P. G. 512.

      a. The term “dwelling house” comprehends all the outbuildings which are a parcel thereof. It need not be under the same roof. It embraces the entire congregation of buildings, main and auxiliary, including the barn, stables, etc., if parcel of the messuage, though they are not under the same roof or joining contiguous to it.— 1 Bish. Gr. L. 165; 3 Greenl. Ev. §80; 1 Hale P. G. 558; 2 Mich. 250; 3 Humph. 379.

      1). It is not essential that the barn, carriage house, and buildings of the like character, should be in the same inclosure with that in which the family resides, if situated at a reasonable distance, and with no public way intervening. — 1 Bish. Or. L. 171; 8 Mich. 150; 1 Hayes, 102, 242; 31 Maine, 523.
    Tbe larceny having been connected with the graver offense of burglary, the defendant cannot bring himself within the statute by making satisfaction to the party injured, and thus avoid imprisonment in the state prison.— 2 Comp. L. § 5764-’5.
   Cooley J.

The information charges that one Samuel Reed, on the 5th day of July, 1865, in the night time, feloniously and burglariously broke and entered the dwelling house of William Moore, in the township of Adrian, with intent the goods and chattels of said William Moore in said dwelling house to steal, take and carry away, and then and there thirty - nine fleeces of wool, of the goods and chattels of said William Moore did steal, take and carry away, and that sgid John Pitcher the said thirty-nine fleeces of wool did receive and have, and aid in concealing, well knowing the same to have been so feloniously and burglariously stolen, &c. The proof tended to show that Reed broke into a barn on the premises of Moore, the situation of which, relative to the house, is described by the latter as follows: “The road runs east and west, and my house is on the north side of the road and some sixty - five feet back from it. My barn is north of the house, in rear of the L part of the house about eight rods. There is a fence from the road to the house, and a little past the west corner, and then it is all open from the house to the barn, and both are in the same yard. The fence around the door yard is built up to each end of the barn, so that the front doors of the barn open into the door yard. At the back side of the barn is a pair of bars, and a door at the end of the barn into the barn yard.” Pitcher being convicted on this information, made full satisfaction to Moore for the value of the wool stolen, and then claimed that, under § 5765 of the Comp. L. it was not competent for the court to sentence him to confinement in the state prison, inasmuch as the larceny by Reed was only a simple larceny; the term “burglarious larceny” being, as is claimed, inapplicable to any offense described in the statutes, and the various compound larcenies for which the statutes provide penalties, being all with different accessories than those accompanying this case.

It is argued, first, that the act of Reed was not burglary, because the offense as described in the statute in the sections which the prosecution suppose applicable to such a case, is confined to the breaking and entering a “dwelling house” in the night time, with intent, etc. ( Comp. L. 5754 and 5755), and the words “dwelling house” are so used throughout the chapter where those sections ■ occur, as to show the legislative intent that they should include only the dwelling house proper, and not the adjoining outbuildings used therewith for domestic purposes (and which would be included by the designation at the common law), inasmuch as all such buildings are distinctively enumerated in other sections by which punishment of unlawful acts therein is provided for.

The statutory definition of burglary in a dwelling house, is the same as that of the common law; and we must infer that the statute designs simply to provide for the punishment of the common law offense, unless we discover some reason for believing that the legislature employed the definition in some new and restricted sense. No-other reason is suggested, except that the words “dwelling house” are used with restricted meaning in prescribing penalties for other offenses — a reason the force of which must depend upon other considerations.

If the statute had provided distinct punishments for burglary in the dwelling house proper, and in the outhouses, etc. used in connection therewith, a legislative intent to employ the words “dwelling house” in a sense not embracing such outhouses, would be very apparent; but it will be perceived, by an examination of the statute, that no such division of the common law offense has been made, and that unless the words “dwelling house” are used in the sections referred to in their common law sense, many burglaries will not be covered by the statute, and their punishment will consequently not be provided for at all. Thus, entering in the night time without breaking, or breaking and entering in the daytime, any out-house adjoining a dwelling-house and occupied therewith, with felonious intent, is made a felony by the statute— Comp. L. §5757, while breaking and entering in the night time with like intent, is not provided for at all, unless the designation of dwelling house, in §§ 5754, 5755, will embrace such outhouses also. This consideration will go far to disprove the position of the plaintiff in error, since we are not lightly to infer that it was designed to leave crimes of this grave character without provision for their proper punishment. But I am of opinion that, in all cases where a common law definition is employed, we must act upon the presumption that it is so employed in the common law sense, unless we have distinct and satisfactory evidence to the contrary. It is a cardinal rule in the interpretation of statutes that words which have acquired a well-defined technical meaning, are to be understood in their technical sense, especially when employed by way of definition. There may be reasons of more or less force for a more specific enumeration of buildings in defining statutory offenses, which would not apply when the common law offense of burglary was in question; in regard to which the meaning of the terms of art immemorially employed, has been so well settled by judicial decisions that any change in definition would only tend to suggest questions, and to unsettle the law.

There can be no doubt that the barn in question would have been regarded as within the curtilage, and embraced by the term “ dwelling house ” as a part of the congregated buildings occupied and used by the family for domestic purposes, and that consequently tbe act of Reed would have been a burglary at the common law — 4 Bl. Com. 225; People v. Taylor, 2 Mich. 250; and see 1 Bish. Cr. L. § 171. It was therefore, I think, a burglary under the statute, and correctly described in the information.

But it is further argued that, even assuming Reed’s act to be burglary, the larceny by him in the building must still be regarded as simple larceny only, and that by no provision in the statute could it have been punished as compound larceny. If Reed, it is said, had been informed against for the larceny and burglary both, by the same information, and had been acquitted of the burglary, but convicted of the larceny, the conviction and punishment must have been for simple larceny only, since none of the compound larcenies which the statute punishes are described as committed in the night time in such a building. This may be true, but it does not appear to me entirely conclusive. For it is now well settled that, upon such an information, the defendant might be convicted generally ; the larceny being proved to characterize the intent with which the breaking and entering was accomplished — Commonwealth v. Hope, 22 Pick. 1; Jones v. State, 11 N. H. 269; State v. Brady, 14 Vt. 353 ; so that it is not the simple larceny which is punished in such a case, but the graver crime which the larceny characterizes.

I apprehend that when the words “simple larceny,” are employed by the statute in reference to the punishment of receivers, they have reference only to such larcenies as are not accompanied by any such circumstances as aggravate the offense and increase the punishment, whether they be technically enumerated as larcenies or not. Robbery is only an aggravated larceny, although it is punished under another and more appropriate name; and it can scarcely be claimed that the receiver of goods from the robber, with guilty knowledge, could escape punishment because the principal’s offense was not technically described as a larceny. So the larceny that characterizes the intent in burglary, is still larceny, notwithstanding it may not be punishable as larceny at all after conviction for the graver offense. It is a larceny accotíipanied by such circumstances as make the offender more severely punishable under the designation of burglar; the larceny being not simple, but complicated with the other and higher crime. In neither of these cases can the receiver, who takes the stolen property with guilty knowledge of the atrocious crime by which it has been obtained, claim the benefit of the statute which only designs to ameliorate the punishment where the principal offense contains no element but such as is contained in simple stealing.

Several other questions are presented by this record, but it is conceded that all of them, except one, are covered by the decision of this court in People v. Pitcher, 15 Mich. 397. The question not disposed of is, whether the court was right in holding the witness Newman excused from answering whose harness he stole on the night when the burglary in question was committed.

Newman was the confederate of Eeed in that burglary, and was the principal witness on whose testimony the plaintiff in error was convicted. On the cross-examination he testified to the commission of other criminal offenses by him, but when asked in regard to the larceny of the harness, he claimed his privilege on the ground that his answer would tend to criminate him, and the court sustained the claim. In this I perceive no error. When an accomplice is thus placed upon the stand, and testifies for the government, he cannot shield himself, on cross-examination, from making a full disclosure of his connection with the offense which is being investigated; but his admission of guilt in that transaction does not oblige him to disclose criminality in other cases. At any stage in such collateral inquiries he is at liberty to claim his privilege. No man can be made a witness to testify to his own crimes except by his own consent; and consent to testify as to one transaction does not entitle either the government or the defense to make the examination inquisitorial, and thereby obtain evidence which might be used against him in future prosecutions.

I think there was no error in the judgment, and that it should be affirmed.

The other justices concurred.


author: Campbell J.

text:
    Harvey Bennett v. Conrad Beidler.

      Sale: Recovery for deficiency. A person buying a field of growing crops by the acre, with the option of taking it at an estimate, or having it measured, and who gave his note for the price according to the estimated number of acres, but upon the express condition that the land should thereafter be measured, was not thereby debarred from recovering back from his vendor the amount of a deficiency found on such measurement — the note having been paid to a bona fide holder.
    Beard, October 20th.

    Decided, October 22nd.

    Error to Washtenaw Circuit.
    This was an action of assumpsit, to recover back certain overpayments.
    Judgment was rendered for plaintiff.
    The facts are stated in the opinion.

      Joslin & Blodget, for plaintiff in error.

      8. E. Engle, for defendant in error.
   Campbell J.

Beidler sued Bennett to recover back certain over-payments. Bennett sold at auction a field of growing crops, not measured, but supposed to contain eighteen acres. The sale was not made for a round sum, but by the acre, and it was understood that notes were to be taken for sums exceeding ten dollars. Beidler bid off the property at twenty-nine 25 -100 dollars per acre, and gave his note to the clerk immediately for the value of eighteen acres: the note being drawn up by the clerk. He introduced evidence tending to show that when he delivered this note he reserved the right of measuring the field thereafter, and also showed that there was a similar understanding between him and Bennett. The field fell short a little more than two acres, and Beidler, having been compelled to pay the note to a Iona fide holder, sues to recover the surplus payment. There was contradictory evidence on the facts.

The auctioneer testified that when the property was sold, it was announced that the purchaser might take it at eighteen acres, or measure it at his option, and the court was asked to charge the jury that if this was the whole of the terms of sale, the giving of the note was an election to take the crop as eighteen acres, without measuring it. This the court refused, and this refusal is the only error assigned.

We think the ruling was correct. This testimony showed that the time and manner of election were not fixed. Whatever presumption might arise from giving a note without explanation or qualification, no such presumption could be admissible against the expressed intention of the party. If the note was given to the clerk upon condition that Beidler should have a measurement thereafter, or if Bennett and Beidler both had such an understanding, there could, of course, be no election deduced from the note itself. The intention, fairly understood, would negative it. The jury had proof before them tending to establish this express understanding, and it was a question of fact for them to decide. The judgment must be affirmed, with costs.

Christiancy and Cooley JJ. concurred.

Martin Ch. J. did not sit.


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    Thomas Smith v. Allen Crittenden.

      Construction of statute: Clerk's certificate of tax to Supervisor^ when to be made. By section six of tbe laws of 18G5, p. 145, it is provided tliat the township clerks shall certify, on or before the first Monday of October in each year, to the supervisor of their township, the amount of the town indebtedness, growing out of the payment of bounties, etc.
    When the certificate was not given until after the first Monday, but before the second Monday, it was held that the law must be considered so far directory that the certificate was equally valid; given, as it was, after the first, but before the second Monday.

      Annual Town Meeting: Special notice: Bounties. Section five of said law provides that the electors shall, “at the annual, or at some special meeting regularly called for that purpose, determine the amount to be raised,” etc., for bounty purposes. Held, that this language does not imply that any special notice shall be given for said purpose, except where the subject was to be considered at a special meeting: the time of the annual meeting being fixed by law.

      Clerk's certificate, when conclusive upon the Supervisor. When the certificate of the clerk — mentioned in said law — is regular upon its face and nothing is shown to invalidate the proceedings prior thereto, it is conclusive upon the supervisor, and makes it his duty to assess the tax and to issue his warrant for its collection.

      Heard October 16th.

      Decided October 22d.

    Error to Washtenaw Circuit.
    This was an action of trespass to recover damages of the Supervisor of Pittsfield for having attached his warrant to the tax roll for 1865, by reason of which plaintiff’s property was seized. The tax was alleged to be illegal.
    Judgment was rendered for the defendant.
    The facts are stated in the opinion.

      0. HawTcins, for plaintiff in error.
    1. This court has already decided that the several laws of this state do not empower the Supervisors to levy the tax set forth in the proceedings in this cause. — 13 Mich. 510.
    3. By the stipulation of the printed case, it is admitted that the whole claim of the plaintiff against the defendant grows out of that portion of the tax of the township of Pitts-field, known as the “five thousand two hundred dollar tax,” which, the plaintiff claims is illegal and unauthorized by Act No. 86, page 140 of the laws of 1865.
    3. The tax being illegal, the defendant was at liberty to refuse to collect it, and by not so doing, rendered himself liable as a trespasser, notwithstanding there were legal taxes included in the same assessment. — 13 Mass. 271; 8 N. H. 166; 13 Id. 34; 4 Vt. 601; 10 Id. 506.
    If the township clerk’s certificate was insufficient, the defendant was not justified. — 5 Mich. 182.

      Norris & XJhl, for defendant in error.
    1 The certificate of the township clerk of the town of Pittsfield was sufficient to protect the defendant in error (Supervisor) from an action of trespass, for assessing the tax, and issuing his warrant, on the whole roll, because,

      a. By law the clerk must certify.— 1 Comp. L. §807; Laws of 1864, p. 57; Laws of 1865, p. 145.

      b. He is liable to a $500 forfeiture if he do not.— Comp. L. § 922 (as amended).

      c. The Supervisor must assess, and must issue his warrant to the collector.— Comp. L. § 815 (as amended); Laws of 1863, p. 329; Comp. L. §819; Laws o/1864, p. 57; Laws of 1865, p. 145.

      d. He is also liable to forfeiture if he do not. — Oomp. L. § 922.
    The law will not punish him personally for doing (ministerially) what it compels him, under penalty, to do.
    If he had discretion to refuse to assess any one item of tax, regularly certified to him, he had discretion to refuse to assess all, and thus arrest the wheels of township, county and state government.
    The ruling of the court below in holding the certificate of the clerk a protection to the Supervisor in an action of trespass, was based upon the spirit and letter of — 1 Doug. (Mich.) 199; 5 Mich. 182.

      And the following authorities are in the same direction. — 5 Mass. 558; 5 Wend. 170, 233, 240; 11 Id. 91; 2 Denio, 86.
    2. The second assigned error is, that the court erred in holding the statute (Laws of 1864, p. 57) requiring township clerks to certify on or before the first Monday in October, to the supervisor, this bounty tax, to be directory only.
    This ruling was correct, and is fully sustained in principle. — 5 Midi. 151; 12 Id. 508, 523; 1 Id. 451; 2 Id. 486; 6 Id. 401; 8 Id. 267; 1 Doug. (Midi) 56; 6 Wend. 486; 3 Mass. 230.
    This last case allowed assessors to assess a tax after the time limited in the act.
    Again, a portion of the certificate, to wit: “Township expenses, $200, * * * $200,” was required by law to be certified on the second Monday (7th October), and the Laws of 1865, page 145, require the clerk “to certify * * * * in the same manner as is now by law his duty to report as to the incidental expenses of his township.” — Laws of 1864, p. 57; Laws of 1865, p. 145; Comp. L. § 807.
    And conflicting clauses should be so construed as that both may be effective, if possible.
    3. By the record, the only objection to the $5,200 tax lies in the alleged insufficiency of the notice given by a former township clerk. The clerk making the certificate, certifies what he finds on the township books. There is none required.— Laws of 1865, p. 145; 12 Midi.; 14 Id. 243.

      Non constat, but that other notice, written or parol, was given; or that the electors fully understood for what and how they were voting. The vote is the vital matter, and not the notice.
    And if the notice was material, and is bad, assuredly the supervisor is not responsible, for the law gives him no control of that.
   Christiancy J.

This was an action of trespass brought by the plaintiff in error against the defendant, who was supervisor of the township of Pittsfield, Washtenaw County, for ' 1865, for having attached his warrant to the assessment or tax roll of the township for that year, under the command of which the plaintiff’s property was seized by the township treasurer for the taxes. The only tax, the validity of which was disputed by the plaintiff, was the sum of five thousand two hundred dollars levied as a township- tax for the purpose of paying bounties to volunteers for filling the quota of the township between July 18th, 1864, and February 4th, 1865; a ratable proportion of which was assessed upon the plaintiff’s property.

The defendant justified, under a certificate of the township clerk to him, which was in due form, certifying, among other amounts to be raised for township purposes, this sum “to refund bounties.” The certificate was dated October 7th, 1865, and was delivered to the supervisor on the same day.

The plaintiff in error insists that this certificate gave the supervisor no authority to assess this tax, for two reasons: 1st: Because it was not given until after the time required by the act “to legalize the action of certain townships, cities and counties in raising bounties for volunteers,” approved March 2d, 1865, under which alone the defendant sought to justify the tax; and, 2d: Because the notice of the meeting, at which the vote of the electors was taken for raising this tax, was insufficient, in not mentioning the sum to be voted upon, etc., etc.

As to the first objection, it is true the act of 1865 (section 6) in terms required the clerk to certify the amount (to be raised for this purpose) to the supervisor “on or before the first Monday of October.” * * * “in the same manner as it is now by laAv his duty to report as to incidental expenses of his township,” etc., and the certificate was not given until after the first Monday, though before the second Monday. By reference to the Compiled Laws, § 807, it will be seen that incidental expenses, and all sums to be raised by tax for township purposes, were to be certified “on or before the second Monday of October." Whether this provision in the law of 1865 is not to be treated as a virtual reference to, and adoption of the provision in the Compiled Laws, as regards the time when the certificate was to be made, we need not decide, as we are all of opinion that if the statute of 1865 is to be treated as fixing the period to the first Monday, the time must be considered as so far directory, merely, that the certificate was equally valid, given as it was after that day, but before the second Monday. And we think it entirely clear that if the clerk had refused to give the certificate by the first Monday, it would have been the duty of this court, upon a proper showing, to have compelled him by mandamus to give it after that date.

As to the second objection, that the notice of the township meeting was not sufficient to authorize the electors to vote upon the question of raising the tax, it is sufficient to say that, this being the annual township meeting, the statute of 1865 did not require any notice that this question was to be voted upon, and the vote would not be rendered invalid if no notice of the meeting had been given. The words “at the annual, or at some special meeting regularly called for that purpose ” (sec. 5) do not imply that any such notice is required for the annual meeting, the time of which is fixed by law, but merely that, if it be a special meeting, the electors are to have notice of the purpose for which it is called, as in other cases of special meetings of the electors.

The first error assigned upon the record, is that “the court erred in holding that the paper writing purporting to be signed by William Allison, as township clerk, was sufficient justification to the defendant in error to include the illegal tax for advances made to volunteers, and that the plaintiff could not go behind the said paper document to show the illegality of the tax."

It is not a little remarkable that the record wholly fails to show that the court made any such ruling or announced any such opinion or decision as supposed by this assignment of error.

The only evidence which appears to have been offered by the plaintiff going behind the clerk’s certificate, was that of the notice of the township meeting; and this was admitted under the defendant’s objection. And whether the court, in deciding the case, took this into consideration or excluded it, the record does not show; though the inference from the record is that he treated it as evidence; since nothing is said of its subsequent rejection. We have, therefore, given the plaintiff the benefit of this evidence.

The judgment of the court upon the facts stated in the record was entirely correct, unless it can be shown that there was no law under which this amount could have been voted or raised by tax under any course of action which could have been taken. In such an event the clerk would have had no authority to certify the amount to the supervisor for taxation; and the supervisor would have been bound to take notice of the total absence of such legal authority. But such is not the case here. The act clearly authorizes the raising of the money by tax for the purpose in question, by a vote of the electors in the mode which it points out. We see no objection to the validity of the act. And the certificate of the clerk (nothing being shown to invalidate the prior proceedings) was conclusive upon the supervisor and rendered it his duty to assess the tax and to issue his warrant for its collection. The question, therefore, whether in an action against the supervisor, it would be competent to go behind the clerk’s certificate when it is good upon its face, for the purpose of showing any defect in the prior proceedings, does not arise in this case. Our opinion upon this question will be expressed in the case of Wall v. Trumbull; argued at this term and not yet decided.

There being no error in the record the judgment must be affirmed, with costs to defendant in error, of both courts

The other justices concurred.


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    Gertrude Dunlap v. Edwin Gleason.

      Replevin: Conditional contract; Title. The owner of a sewing machine delivered it to another, and received the following receipt:
    “Detroit, Nor. 28, 1806.
    “Received of E. W. Gleason one certain sewing machine, which I agree to safely keep and carefully use, and not remove from Wayne county, and at the expiration of three months from the above date, return the same to him free of charge and unincumbered; provided always, and it is expressly understood that if, on or before the expiration of the above time, I shall pay to the said E. W. Gleason the- sum of sixty dollars, then this receipt shall be null and voidT and the said E. W. Gleason shall execute to me a bill of sale of said machine. Gertrude Dunlap.”
    The receiptor sold the same soon after.
    In an action of replevin by the owner: Sdd> that by the terms of said receipt no credit was intended to be given, and that no title passed until the money was paid, and that the owner had a right to replevy the machine when said receiptor parted with the possession, whether the three months had expired or not.
    Heard, October 16th.

    Decided, October 22nd.

    Error to Wayne Circuit.
    This was an action of replevin brought to recover the possession of a sewing machine.
    It appears that Gleason, defendant in error, being the owner of the machine, delivered it to one Pollock and his wife, and took the following receipt:
    Detroit, November 28, 1866.
    “ Received of E. W. Gleason one certain sewing machine, No. -, known as the Florence, which I agree to safely keep and carefully use, and not remove from Wayne county, and at the expiration of three months from the above date, return the same to said E. W. Gleason, free of charge and unincumbered; provided' always, and it is expressly understood that if, on or before the expiration of the above time I shall pay to the said E. W. Gleason the sum of sixty dollars, then this receipt shall be null and void, and the said E. W. Gleason shall execute to me a hill of sale of said machine.
    (Signed)
    “Louis Pollock,
    Sarah Jane Pollock.'

      That during the following January, said Pollock and his wife sold the said machine to plaintiff in error, whereupon said Gleason replevied it.
    Judgment was rendered for plaintiff below.

      Kirchner & Elliott, for plaintiff in error.
    1. The contract between Gleason and Pollock does not, in law, amount to a bailment; but to a sale.

      a. "By the terms of the contract, Pollock was not bound to return the machine at the expiration of three months; but he had the privilege of doing so, or pay sixty dollars. The specific article delivered by Gleason to Pollock was not, according to the terms of the contract, required to be returned by the latter, and the contract was not therefore one of bailment.' — Edivards on Bailm. 1; Story on Bailm. § § 228, 439; 7 Gow. 752. The last case was affirmed in 4 Shep. 17, cited below.

      b. But the transaction amounted to a sale, and the property in the machine passed to Pollock.- — 7 Shep. 319; 4 Id. 17; 1 Eairf. 31; Hill, on Sales, 31.
    2. Conceding that the property in the machine did not pass by the contract between Gleason and Pollock, the judgment should be reversed.
    The contract was made on the 28th of November, 1866. Pollock was to return the machine within three months from that date, or pay $60. He had therefore the right to elect at any time before the expiration of the three months, whether he would return the machine, or pay $60. — 21 Vt. 292; 2 -Pars, on Gont. (5th Ed.) 657.
    Before the expiration of the three months, Pollock sold the machine to plaintiff in error, and Gleason brought replevin. We submit that before the three months had expired, Gleason had no right of action whatever; that by selling the machine Pollock made his election to pay $60 at the expiration of three months, at which time Gleason had a right to maintain an action against Pollock for that sum, and nothing more. — 2 Pars, on Gont. (oth Ed.) 657; 7 Goto. 752.
    The contract makes no provision for forfeiture, in case Pollock should sell the machine. The policy of the law has always been to make all forfeitures odious. The language of an agreement is never construed into a provision for forfeiture, unless such provision is expressly stipulated for. A provision for forfeiture is never implied. —15 Penn. Sé. 296. Yet, if by selling the machine, Pollock did not forfeit his right thereto, on what grounds-can the judgment in the court below be sustained?

      Ward & Palmer, for defendant in error.
    1. The title to the machine did not pass by the terms of the receipt. The first.clause is a receipt of the machine, and an agreement to safely Iceep, in Wayne county, and return it unincumbered at the expiration of three months; the second clause provides how the first clause may become null and void, and a sale perfected, by Pollock’s paying $60, and the evidence of sale was then to be given by Gleason.
    If Gleason loaned the machine to Pollock, of course the title did not pass, or if he sold the machine conditionally, or rather agreed to sell the machine to Pollock, the title did not pass.- — • Couse v. Tregent, 11 Mich. 65.
    2. Gleason had a right to bring suit for the machine after Pollock had sold it, and before the three months had expired.
    Pollock had the right, under the contract, to retain the machine three months; but by the sale he parted with all his right to it, and since he could not transfer his right to retain it, Dunlap acquired no right thereby.
    And if by the sale of the machine the contract was broken, then of course the right of action was complete.

      Pollock agreed to safely Iceep it, but did not; he sold it, and by so doing Gleason’s right to recover the same was complete. — 6 N. JS. 14. 8 Id. 325; 34 Id. 39.
   Cooley J.

In the writing given by Pollock to Gleason, the former acknowledged the receipt of the sewing machine, which he agreed to safely keep and carefully use, and not remove from Wayne county, and at the expiration of three months, return the same to Gleason, free of charge and incumbrance. Thus far, there is no intimation of an intended sale, and the words employed are aptly chosen to create a bailment. But it is then added that it is understood that if Pollock, within the three months, shall pay to Gleason sixty dollars, the said writing shall be null and void, and Gleason shall execute a bill of sale of the machine. In other words, Pollock may terminate the bailment and purchase the machine by the payment of $60 within the three months, at his option.

We think the terms of this paper clearly show that Gleason did not intend to trust to the personal responsibility of Pollock, or to part with his title, conditionally or otherwise, until the sixty dollars was paid. In this the case differs from those cited on behalf of the plaintiff in error. Gleason has not taken from Pollock an alternative promise, leaving with him a choice in performance, but he has required an absolute undertaking for the return of the machine within a time limited. The further stipulation is in the nature of a defeasance of that undertaking, dependent not upon Pollock’s agreement to pay the price of the machine, but upon his actually paying it. Until such payment, the agreement to return remains in full force; and it is plain that Gleason did not intend to give credit on sale of the machine, but to sell only for cash payment.

This being so, and the title remaining in Gleason, he had a right to replevy the machine, when Pollock put it out of bis bands, whether the three months had expired or not. The bailment, by its express terms, imports a personal trust which could not be transferred.

Judgment affirmed, with costs.

Christiancy and Campbell, JJ. concurred.

Martin Ch. J. did not sit.


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    Eliza A. Perkins v. Sebra Perkins, et al.

      Judicial acts: Evidence: Due course of Law. The ascertainment that a debt is due and unpaid, and the determination of the amount, are judicial acts, and can only be made where the party to be bound has had an opportunity of being heard in due course of law.

      Decree where there are sevej'al instalments: Default: Hew adjudication: Sale. Where money is payable by instalments, no decree can be lawfully made for any of them until an opportunity has been afforded to contest each alleged default, and a decree upon one hearing will not authorize a sale for a subsequent instalment, without a new hearing and adjudication.

      Effect of decree of sale, without adjudication: Alimony. Where a decree was made directing a sum allowed for alimony to be paid in several future payments, and directing a sale on default — a sale made after all the payments had matured, but without any adjudication of the non-payment, and without any further hearing or decree, was held illegal and invalid.

      Order: Decree: Appeal. An order of the court below vacating the sale (which had never been lawfully confirmed), but in addition ordering a new sale upon new terms and conditions, was thereby converted into a decree, and was therefore open to appeal.

      Assignment of interest in decree, eject of. Where a complainant assigns all interest in a suit, the suit becomes defective, and no subsequent proceedings can be properly had on behalf of the assignee, without an original bill in the nature of a bill of revivor and supplement.— Webster v. Hitchcock, 11 Mich. 56.

      Courts of Equity: Dower to create lien on real estate: Alimony: Sequestration. A court of equity has no original power to create liens on real estate, and has no general power, under the Compiled Laws, to declare alimony to be a specific charge upon lands, or to direct such lands to be sold in default of payment.
    Jurisdiction over alimony is statutory, and cannot be extended beyond the statute authority, which only allowed a sequestration of rents and profits of realty where the defendant had been ordered to give security, and had neglected or refused to do so.

      Decree foi' alimony: IBffect of lien created by deed. Where a defendant conveyed lands upon which the court had attempted to create a lien for alimony, and hy his deed expressly charged them with the amount decreed, the estate was hound hy the charge; hut whether it could he enforced without new and original proceedings, quaere.

      Costs on appeal in chancenj. — Where upon appeal a decree is partly affirmed and partly modified or vacated, hut such change is not made in favor of the appellant, and the merits are adjudged in favor of the appellee, the latter is entitled to costs. — Conway v. Wanerly, 15 Mich. 257.
    Heard, October 16th.

    Decided, October 22nd.

    Appeal from Washtenaw Circuit, in Chancery.
    The appeal in this case was taken from an order of the Circuit Court setting aside a sale of real estate, and ordering a re - sale.
    The facts are stated in the opinion.

      A. Fetch, for appellants.

      Norris & Uhl, for appellees.
    In this case the appeal is had from a final order, and brings up for reyiew so much of the proceedings as are connected therewith.— 2 Doug. (Mich.) 306.
    But the Court is confined to the ’examination of errors found in the transcript. — Id. 169.
    1. The petition to set aside the sale was properly granted, because of the following irregularities:

      a. The decree does not authorize a sale, unless defendant shall neglect to pay, for forty days after time of decreed payment.
    It was a final decree, but required a further order, upon proofs of demand and non-payment, to authorize a sale.— 1 Barb. Gh. Pr. 332.

      b. If alimony is suffered to run in arrear, any payments on account of the wife may be deducted, on her application to enforce payment. — Bish. Mar. & Div. § 594, citing 3 Hagg. (5 F. F. L. 126, 128), 322; 1 Phil 210.

      c. But the first process to enforce performance of decree is an execution. This is not shown, and was not had. — 1 Barb. Oh. Pr. 441; Gomp. L. § 3517.

      4. The “whole interest” of the complainant having been assigned January 5th, 1860, to George Renwick, who has since died, the proceedings since then are irregular and, coram own judice. It was with this view that the prayer of the petition was to vacate the sale, and only for a resale “ if ioi the power of the court.” This cause has abated. — 7 Paige, 18; 10 Mich. 117; 11 Id. 56; 13 Id. 258; 1 Waller, Oh. 416.
    This being so, a bill of revivor and supplement must be filed before any further proceedings can be taken.— 2 Barb. Oh. Pr. 35, 36, 80 to 88.
   Campbell J.

An appeal is brought into this court from the order of the Circuit Court of Washtenaw county, setting aside the sale made by a Circuit Court Commissioner, under a decree declaring certain real estate liable for alimony, and providing that upon default for forty days after any instalment became due, complainant might “sell such portions of the described real estate as will be sufficient to satisfy any amount due to her on said decree at the time of sale, in the same manner and with like effect as sales are made upon decrees of this court for the foreclosure and sale of premises mortgaged.” The alimony allowed was payable in three annual instalments, with interest. The decree was dated in December, 1859. In October, 1864, a sale was made under this decree of the entire premises., A few days thereafter proceedings were stayed, and the order was vacated in August, 1865, when the Circuit Court Commissioner, who had in the mean time gone out of office, delivered over the deed to the purchaser, and the report of sale was filed, and an order of confirmation was entered without any notice to the adverse parties or their solicitors. The premises were bid off by one George N. B. Renwick, who paid no money to the commissioner, but assumed to receipt for the purchase money as paid by the conveyance, signing the receipt in Ms own name “for the heirs of George Benwieh, assignee of such decree.” It appears that soon after its date, Mrs. PerMns assigned the decree to George Renwick, now deceased, and that the purchaser at the sale was his administrator. Shortly after the confirmation, an application was made to open the sale, signed by defendant’s solicitors, and verified by one of them, alleging irregularities and violation of an understanding for delay, and averring inadequacy of price, and offering to increase the bid to about three times the sum at which the lands were struck off. It appearing that immediately after the decree, defendant sold the property to Lorenzo D. Perkins, the latter was also allowed to come in and join in the petition. Defendant, several years since, became insane, and a guardian was appointed for him, who has intervened in the cause. The Circuit Court set aside the sale, and ordered a new one in case of future default.

Mrs. Perkins and Renwick appealed.

A preliminary question was raised concerning the appealable character of this order. Inasmuch as the sale was never legally confirmed, so that Renwick acquired no additional rights as a purchaser, it may be questionable whether an order merely opening the sale could be deemed a final order; but the further clause directing a re-sale on new conditions, has the effect of a decree; and as the two purposes are combined in one adjudication, we must regard it as coming within the statute.

There were several formal points raised on the argument, but, inasmuch as the nature of the case requires us to pass upon the matters of substance, we shall not consider the more technical questions, which become unimportant.

The main objection to the sale is that it could not lawfully be made under the decree, without some further order adjudging the defendant to be in default, and ascertaining the amount. We think this objection is valid.

Giving to the decree all the force which, can be claimed for it, the provisions it contains concerning alimony axe the sole origin of that responsibility; and the object of these provisions is to create a debt payable in the future, and to place that debt on the footing of a mortgage. It certainly did not and could not adjudicate in advance for future defaults. No court, either of law or of equity, can lawfully direct judgment to go against a party until his default has been made out. The determination of the amount of any debt actually due, which is to stand as the basis of a judicial sale or execution, is a judicial act; and a hearing must precede the condemnation. In mortgage cases, a decree for the first instalment, while it must necessarily go upon a finding of the existence and validity of the entire mortgage, will not justify any assumption that a second default has occurred, without new proceedings calling on the defendant to respond to the new cause of action — Qomp. L. §3575, 3576, 3577. As often as a new instalment becomes due, if it is desired to enforce payment of it, the party must be allowed a hearing. The determination of the sum actually due, is necessary to an enforceable decree; and until this sum is judicially ascertained, there can be nothing to collect. It is a necessary part of a complete judgment.

The decree could not lawfully stand for any other purpose; and when it likens the proceedings enjoined to those in mortgage cases, it requires, of necessity, that as each instalment becomes due, there must be proceedings to obtain an adjudication upon it, before any sale can be ordered or permitted. Any other result would be absurd, and contrary to every principle of justice. No one can be subjected to a judgment without an opportunity to defend and dispute his default. The sale was void, therefore, and the court was bound to set it aside. And so much of the action of the Circuit must be affirmed.

But the question further arises whether we can affirm the entire order under the facts as presented. This involves some very serious considerations.

We were compelled, in Conway v. Waverly 15 Mich. 257, to deal with an order involving the same difficulty of affirming so much as was prejudicial to the appellants, and yet vacating other portions not legally authorized. The order in the present case is premature, in not requiring an adjudication of the amount due and in default. But the facts show more serious defects in the proceedings. It appears that the complainant assigned her entire interest several years ago. The effect of this was to render the suit as defective as if it had abated. This assignment required an original bill in the nature of a bill of revivor and supplement, to enable the assignee to proceed further. — Webster v. Hitchcock, 11 Mich. 56. And the death of the assignee, and the appointment of his administrator, have still further complicated the case, and demand additional showings.

Moreover, the condition of the defendant’s interests calls for some consideration. The defendant against whom the decree for alimony was made has become insane. But before this he had conveyed his lands to Lorenzo D. Perkins, subject to the claim for alimony. That this directly charged the lands with that burden is unquestionable, but whether it made them liable to further proceedings in this cause is more doubtful. The decree expressly permitted Sebra Perkins to sell the lands subject to the alimony. But chancery courts have no inherent power to declare liens against real estate, to secure debts which may be established against the person. — Bennett v. Nichols, 12 Mich. 22. And they have no inherent power as courts of equity to decree permanent alimony at all. — Peltier v. Peltier, Harr. Ch. 19. The power is a statutory power, incident to the jurisdiction over applications for divorce. The statute prescribes the entire powers and regulations on the subject. By § 3248 of the Comp. L. the court, upon decreeing alimony, may direct the husband to furnish security therefor. TJpon his neglect or refusal to give such security, or upon his failure to pay what he has been directed to pay, but only upon such default, the court may sequester his personal estate, and the rents and profits of his real estate, and appoint a receiver, and cause the personalty and the rents and profits of the realty to be applied towards the alimony as it becomes due. This is the only process provided for reaching or binding real estate, unless by execution. The laws of 1865 (p. 529) have now enlarged the power, by permitting the court to direct the sale of wild and unproductive lands in certain cases. We do not deem it proper, in the present case, to determine whether there are any circumstances which would empower the court to reach the interest of Lorenzo D. Perkins, without the institution of original proceedings, because no attempt has been made to bring him in at all. We have referred to these difficulties which make it necessary for us to vacate a part of the order, to call the attention of the parties to some matters which do not seem until now to have been much considered, and to enable them to avoid, if possible, any further complications, which may lead to future questions of title.

So much of the order of the court below as vacates the sale, and all proceedings subsequent thereto must be affirmed.

The remainder of the order must be vacated. As the action of this court is entirely in favor of the appellees, they will be entitled to costs against the appellants, as was determined in Conway v. Waverly.

Martin Oh. J. and Christiancy J. concurred.

Cooley J. did not sit, having been of counsel.


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    John Rorabacher v. James B. Lee.

      Evidence: Agreement: Several and distinct right of action. Defendant in error sued plaintiff in error upon the following agreement:
    “Greenoak, October 8th, 1861.
    I hereby agree to pay to James B. Lee one hundred and twenty-five dollars, and to Ira Case one hundred and ten dollars, by the first day of April, A. D. 1862; provided Wm. M. Power execute to me a good and legal title of the east & of the north east £ of section twenty, in range one, north of six east, according to the cpnditions of a certain bond executed by Wm. M. Power to me, April 16th, A. D. 1861.
    JOHN EOEABACHEE.”

      Held, that said agreement gave a several and distinct right of action to Lee and Case when the condition precedent was performed by Power, or waived by Borabacher. Held further, that the bond referred to in said agreement was an essential part of the same, and was competent evidence in a suit thereon.

      Bond of indemnity: Condition precedent: Waiver. It appeared that previous to this suit, Power executed to Borabacher (defendant below) a warranty deed of the land mentioned in the agreement, and that a prior grantor executed in addition a bond with a surety indemnifying Borabacher against all defects in the title, and that he accepted the same and settled with Power. Held, that this operated as a performance of the condition mentioned in the proviso in said agreement, or as a waiver; and that in either view Borabacher’s contract to pay the plaintiff became from that moment absolute.

      Pleading and Evidence: Variance. The declaration alleged that the said bond of indemnity was executed by said Power as principal, and by others as sureties; but that it was accepted by Borabacher together with the Power deed as a performance of the condition in said agreement mentioned.
    The bond introduced in evidence at the trial, without objection, was executed by one Barber as principal.

      Held, that this must be treated as a mere technical variance, and that under the circumstances disclosed by the record the defendant below could not have been misled. The variance was cured by the statute. — Comp. Laws, §4329.

      Heard October 16th.

      Decided October 22d.

    Error to Livingston Circuit.
    The plaintiff below declared against Rorabacher in assumpsit, on tbe common counts, and gave notice that he would introduce in evidence on tbe trial, a certain agreement, a copy of which was served with tbe declaration.
    Tbe defendant pleaded tbe general issue.

      On the trial the plaintiff introduced in evidence, under objection, the following agreement:
    “Geeen Oak, October 8th, 1861.
    I hereby agree to pay James B. Lee one hundred and twenty-five dollars ($125), and to Ira Case one hundred and ten dollars, by the first day of April, 1862; provided Wm. M. Power executes to me a good and legal title of the east one-half of the north-east quarter of section twenty, in range one north, of six east, according to the conditions of a certain bond executed by Wm. M. Power to me.
    JOHN RORABACHER.
    April, 16th, 1861.”
    The bond referred to in the foregoing contract, was introduced in evidence, under objection, and is in the words and figures following:
    “This agreement made and entered into between Wm. M. Power and John Rorabacher, both of Creen Oak, Livingston County, Michigan; Wm. M. Power agrees to sell the said Rorabacher, for the sum of one thousand three hundred dollars, the east half, of the north-east quarter, of section twenty, in the township of Creen Oak, aforesaid, as soon as he can give a good title thereof; the north half thereof belonging to the estate of Robert D. Power, deceased, and hereby binds himself to proceed in the Probate Court, apply to have an administrator, and get a sale of the said north half ordered by the Judge of Probate, as soon as can be done with due regard to the requirements of law; and before the first day of August to give a good title to Rorabacher.
    “The said Rorabacher agrees to pay one thousand three hundred dollars for the said premises, in the following manner, by a mortgage executed by Wilsan Yanson, on the west half, of the south-west quarter, of section thirty-six, in said town of Creen Oak, for one thousand dollars, and a mortgage this day executed by the said Wm. M. Power to the said Rorabacher for three hundred dollars, as soon as said William can and does give to said Rorabacher a good title and warranty deed with the usual covenants, of said first mentioned premises; said Power is to give immediate possession of the farm and full possession of the house on or before the first day of June next. Rorabacher is to have the wheat on the ground. No interest is to he charged on the mortgages aforesaid, if this contract is fulfilled. If the mortgage for one thousand dollars shall not he good on account of a defective title, Bower will not he required to accept it. Bor the faithful performance of the above agreement, each party hinds himself unto the other in the sum of three hundred dollars stipulated damages.
    “In witness whereof the said parties have hereunto set their hands and seals the 16th day of April, 1861.
    Seal. WM. M. POWER,
    Seal. JOHN RORABACHER.”
    It further appeared that Wm. M. Power, acting as administrator of Robert D. Power’s estate, having gone through the Probate Court, was ready to convey; but the title was claimed to be defective by Rorabacher, in the absence from record of a certain deed. That Rorabacher, however, accepted the deed of Wm. M. Power, executed in pursuance of the above bond or agreement, and a bond of indemnity given him by a former warrantor of this title, against ah defects in the same, and expressed himself satisfied therewith; defendant and his grantees having remained in possession ever since. That Rorabacher, on accepting this deed from Power, and the bond of indemnity, settled with Power in full for the consideration of such conveyance, holding back from this consideration of thirteen hundred dollars due Power, the amount due on this contract declared on in this case. It further appeared that there was an actual and adverse possession for twenty years in the grantors of Wm. M. Power and Robert D. Power, which under the deed of Wm. M. Power to the defendant, moved to him.
    There were six assignments of error.
    The first and second were based upon the admission in evidence of said agreement and bond.
    The third, fourth and fifth related to certain defects in the change of title from Power.
    The sixth alleged a variance between the allegation in the declaration, and the proof of the bond.
    Judgment was rendered in favor of the plaintiff.

      0. Hawlcins, for plaintiff in error.
    A suit- upon a contract can not be controlled by a different contract than tbe one declared upon. — 2 Ind. 418; 5 Conn. 272; 36 N. II. 252; 21 III. 85.
    Where the consideration for a promise is stated in a declaration as consisting of two parts, each of which is material and pertinent, though either one standing alone is sufficient and would sustain the promise, proof of but one is fatal to the plaintiff’s recovery. — 13 Mich. 113.

      Norris & Uhl, for defendant in error.
    1. The contract declared upon contains distinct promises to distinct persons, and was properly declared upon as a several contract.
    2. The agreement of Power was admissible.
    The performance of this agreement (by express reference made part of the contract sued on) was a condition precedent to the plaintiff’s (beloAv) recovery, and so its performance was a material part of his case.
    The variance between the bond alleged in the declaration is an immaterial one. The material part of this allegation is the giving and accepting of some one’s bond; that is proven. Whose bond, is of no consequence. If the objection had been made at the trial, it would have been disregarded, as not calculated to surprise or mislead the defendant below.— 2 Mill, 126; Comp. L. § 4329.
    But the point was not made at the trial; the evidence was received by the court without objection. This is a waiver of the variance. — 12 N II. 405, 406; 8 Mich. 349.
   Christiancy J.

The agreement or contract of Rorabacher, the defendant, dated October 8th, 1861, upon which the suit was brought, gave a several and distinct right of action to the plaintiff Lee, and to Case when the condition precedent was performed by Power or waived by tbe defendant. The promise was not to pay Lee and Case jointly, bat was so entirely several that one had no interest in its performance so far as it might benefit the other. The contracts were in every respect just as distinct and several in this respect, as if contained in separate instruments, in each of which the name of one promisee only had been mentioned. It is therefore difficult to see any principle upon which a joint action by the two could have been sustained. Certainly they were not bound to sue jointly. There is, therefore, no ground for the first assignment of error.

There was no error in admitting in evidence the- agreement between 'William M. Power, and the defendant in reference to the sale and conveyance of the land-. This was the instrument referred to in the defendant’s contract of October 8th, as the “bond” of Power, and by this reference it became an essential part of the defendant’s contract, (upon which the suit was brought), without which -the meaning and effect of the proviso in that contract could not be understood. There is, therefore, no basis for the second assignment of error.

The third, fourth and fifth assignments of error relate to the title which was actually conveyed by Power to the defendant, and to the question, whether a good title was in fact conveyed in accordance with the terms of Power’s contract or “bond.”

But all questions of this kind are, in our opinion, rendered wholly immaterial under the finding of the judge of the acceptance by the defendant of the conveyance made by Power to him, and.of the bond of James and Samuel Barber indemnifying against any defects in the title. The finding shows that before this suit was brought, while the title of record as to a part of the land appeared to be imperfect, Power executed to the defendant a warranty deed for the land, and that James Barber who had once owned the land and conveyed it with warranty, gave to defendants a bond executed, by himself and by Samuel Barber as surety, indemnifying the defendant against all defects in the title; that defendant accepted this conveyance and this bond, and expressed himself satisfied, and thereupon settled with Power in full for the price of the premises, holding back only the amounts he had agreed to pay to the plaintiff and Case, by the contract declared upon, and that the defendant and his grantees have remained in possession ever since.

This can be treated only as an acceptance in full performance of the contract of Power to convey, referred to in the proviso of the defendant’s agreement declared upon, and it operated as a satisfaction or performance of the condition mentioned in the proviso, or as a waiver of that condition; and in either view the defendant’s contract to pay the plaintiff became from that moment absolute.

But it is assigned as error (sixth assignment), that the court erred in deciding in favor of the plaintiff in the court below; the allegation of the amended declaration being that the bond of indemnity was given by William Power as principal and other persons as sureties, when it did not appear by the proof that any such bond was ever executed.

The allegation in the amended declaration in reference to the persons by whom the bond of indemnity was executed, is as supposed by this assignment of error. But the whole substance of the allegation is that the defendant accepted Power’s deed, and a bond of indemnity in satisfaction; or perhaps more generally still, that the defendant had waived the condition contained in the proviso of the contract declared upon; since, so far as it affected the rights of the parties, the effect would have been just the same, if he accepted the bond of any other person in the manner this was alleged to have been accepted.

It was, therefore, a simple question of variance in the description of a written instrument, between the allegation and the proof. The defendant did not object to the introduction of the evidence upon the ground of variance or upon, any other ground, nor complain that he had been surprised or misled. And the record does not show that any objection was made to its consideration by the court. So far as appears by the record, the question is raised for the first time by the assignment of errors in this court. But it is now insisted that it is not to be treated as a mere variance, but as a complete failure of proof to sustain the allegation of the acceptance of the bond of indemnity. We think it must be treated as a mere technical variance or mistake and that under the circumstances disclosed by the record, the defendant could not have been surprised or misled by such a mistake in the description of the bond which he had accepted.

The case, therefore, in our opinion, falls' within the provisions of section 92 of chapter 127 Compiled Laws, that “every variance between process, pleadings or any instrument in writing, recited or referred to in any other process, pleading or record, and every mistake in the name of any officer or other person, or in stating any day, month or year, or in the description of any property in any pleading or record shall be disregarded upon the trial of such cause, and after a verdict therein, unless such variance or mistake be calculated to surprise or mislead the adverse party, and to prevent his making due preparation for a full answer on the merits, to the matter concerning which such variance or mistake shall have been made.”

This section, though inartificially drawn and somewhat deficient in perspicuity is, we think, plain enough in its intent and was intended to apply to a variance or mistake like the present.

Had the objection been made at the trial, the more correct course would doubtless have been for the court to have ordered the pleadings, in this respect, to have been at once amended. This would be better in reference to the use. which might be made of the record in any subsequent cause. But when no objection is taken upon the trial to the introduction of the evidence on the ground of variance, it is, we think, the duty of the court to disregard it.

The judgment was, in our opinion, well warranted by the finding, and the finding by the evidence; and there being no error in the proceedings which could operate to the prejudice of the plaintiff in error, the judgment must be affirmed, and the defendant in error must recover his costs in both courts.

The other justices concurred.


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    Stephen N. Palmer et al. v. The Township of Napoleon.

      BUI to restrain collection of illegal taxes, what must allege. Complainants filed their bill to restrain the collection of certain township taxes alleged to be illegal. The alleged illegality did not extend to all the township taxes, but the complainants had not paid those which were conceded to be legal; nor did the bill show how much was legal and how much was illegal, nor set forth any facts from which the court could make the separation.

      Held, that such a bill contained nothing from which it could be inferred that there was any difficulty in determining from the tax roll or township records what proportion was legal, and that the collection of a legal tax would not be enjoined in order to reach an illegal one under these circumstances.
    Held, further, that whenever a party concedes that a portion of his tax is just, but disputes another portion, he is not entitled to the interference of equity to stay the execution of process, unless he pays or offers to pay the legal part.

      Heard October 10th and 11th.

      Decided October 22nd.

    Appeal in Chancery from Jackson Circuit.
    This was a bill to restrain the collection of certain alleged illegal taxes placed upon the township roll of Napoleon for the year 1865.
    The bill in the court below was dismissed.
    The facts are stated in the opinion.

      A. Blair, for complainant, and appellant.
    The case is a proper one for equity jurisdiction. The illegal ■ tax had been extended against the complainants, and the lien had attached as absolutely as if the sale had already been made. — 12 Mich. 420; 13 Id. 540.

      Wm. K. Gilson, for defendant, and appellee.
    The allegations in the bill do not constitute a sufficient basis for equitable interference.
    .The bill does not attempt to point out to the court the amount for which either of complainants have been unjustly taxed to pay bounties. The court has no means of knowing, except by computation. Nor is there any distinct allegation in the bill that any part of said sum raised for bounties has been taxed against either of complainants.
    The complainants are bound to set out the true amount of what is claimed to be illegal, for the court would have a right, as one of the conditions of an injunction, to require them to pay what was not illegally raised for township purposes. The court will not, where it can be avoided, prevent the collection, by tax, of moneys which ought to be raised for municipal government. It is no excuse that it would take labor to separate the tax. The defendants insist that this is a fatal defect in the bill, and that the allegation is not sufficient.— 25 III. 557; 17 Wis. 284, 442; 15 Miss. 577.
   Cooley J.

The bill in this case was filed to restrain the collection of certain taxes placed upon the township roll of Napoleon, for the year 1865, and which are alleged to be illegal. The suit was brought while the tax roll was in the hands of the township collector, on an allegation that the complainants had no personal property in the township from which the collector could make the tax, and that it was, and would consequently remain a lien upon the land, and a cloud upon complainant’s title. The alleged illegality affected only a portion of the township taxes, and it was not disputed that the remainder, as well as the state and county taxes, was legal. The whole amount of the disputed tax levied upon the town is stated, but how much the others were we are not informed. The total of taxes assessed against complainants is set forth, but what part is legal and what illegal we have no means of ascertaining from the bill. The complainants had paid no part of the taxes when the bill was filed, and they allege that they cannot tell what proportion of their taxes is illegal, “for the reason that the same are mixed with the other taxes for township purposes, in the said tax list, and cannot be separated without much labor and difficulty.” The injunction asked was to restrain the township treasurer “from proceeding any further in the collection of the said township taxes, and from returning the said lands of your orators to the county treasurer as delinquent for the said taxes.”

Upon this bill we do not see how we can grant the relief which the complainants pray. The power to restrain public officers in the collection of the public revenue, is one to be exercised with great caution, and never without a due regard to the public interests which are liable to be so greatly affected thereby. The cases must be very rare where a court would be warranted in restraining the enforcement of a legal tax, in order to reach one that is illegal. Whenever a party concedes that a portion of his tax is just, but disputes another portion, he makes no claim to the interference of equity, to stay the execution of process for collection, unless he pays or offers to pay the part which is legal. “He who seeks equity must do equity;” and there can be no just ground for preventing the enforcement of the legal tax, unless it is so mingled with the illegal that it is impossible to separate them.

But it is difficult to conceive how such a case could arise. It would certainly be very different from the case before us, where the disputed tax is a fixed sum, so that there is no difficulty in ascertaining the precise proportion it bears to the whole township taxes. It is not alleged that the township roll is made out in any unusual or irregular manner, and if not, it would show upon its face, and' by the warrant attached, the total of those taxes. It is to be presumed that the same information is obtainable in the township clerk’s office, and there is no allegation that information was applied for there. So far as we know, a simple arithmetical calculation was all that was required to separate these taxes.

The record in this suit, however, did not enable the court below, nor will it enable us, to make the separation. Under these circumstances, we think the court below was correct in denying the injunction and dismissing the bill. — Conway v. Township Board of Waverly, 15 Mich. 257. Leave to amend does not appear to have been asked in the court below, and we have no occasion- to consider what action should have been taken if a motion to that effect had been made.

As upon the ground stated, the bill made no case for equitable interference, we do not deem it proper to enter upon an examination of the alleged illegalities.

The other justices concurred.