author:
Christiancy J.:
      Martin Ch. J.:

text:
    Harvey P. Platt v. John Stewart and another.
    In a suit involving tlie title to lands, which are claimed by one party under partition proceedings in Chancery in which a sale was decreed and made, it is incumbent on the party setting up these proceedings to give in evidence the whole enrolled record, or at least all those parts of the record which have a bearing upon the question whether the proceedings, as a whole, divested the title of the former owners.
    The jurisdiction of Courts of Chancery over proceedings in partition, at least as to non-resident defendants, is special and limited, and dependent entirely upon the statute. All the necessary facts to confer jurisdiction must therefore affirmatively appear upon the record.
    An affidavit of non-residence is an essential pre-requisite to an order for the appearance of non-resident defendants in partition cases; and without such affidavit the order is void, and the Court acquires no jurisdiction of the nonresident parties by its publication.
    The recital of an affidavit in the order is not evidence that such on affidavit ^ was made.

      Heard April 15th and 16th.

      Decided, May 30th.

      Error to Shiawassee Circuit.

      Me Curdy & Maynale, and C. I. Wcdlcer, for plaintiff in error.

      Goulds <& JEanehelt, for defendants in error.
   Christiancy J.:

Plaintiff in error brought an action of ejectment in the Circuit Court for the county of Shiawassee, against defendants in error, for the recovery of the undivided one-fourth of certain lands situate in that county; and having shown on the trial a prima facie title, derived through a deed from Daniel Ball and wife to Jonathan Child, dated June 17th, 1889, and from Child to Henry J. Whitehouse, dated June 15th, 1842, and from Whitehouse to himself, dated February 21st, 1858, rested his case.

The defendants sought to defeat the plaintiff’s title, and to show title in themselves, by a partition of the premises under a bill filed January 21st, 1851, in the Circuit Court in Chancery, for that county, by Charles L. Goodhue against Jonathan Child, Henry J. Whitehouse and others; by a sale of the whole of the premises (one-fourth of which was claimed by the plaintiff in ejectment) made in the partition suit, to Orville S. Goodhue and Mary A. Thomas, August ¡16th, 1851, and a deed from said purchasers to the defendants. The partition suit had been finally terminated, the decree signed, the sale confirmed, and the record completed by enrollment.

Child and Whitehouse, through whom the plaintiff in ejectment claimed, were non-residents of the State when the partition suit was instituted, and for aught that appears still continue so; neither of them was served with process, nor had any notice of the suit except such constructive notice as was given by the publication of the order for appearance, which will be presently noticed, and neither of them ever appeared in the suit.

The only way in which the suit in partition and the sale under the decree could avail the defendants in the ejectment suit, was by divesting the title of Whitehouse, the plaintiff’s grantor. To give the proceedings this effect, it was necessary to show, not only the fact that proceedings had been had with that object, in a court having jurisdiction of the subject - matter, but it must also appear that the proper steps bad been taken to obtain jurisdiction of the person of Whitehouse, one of the non-resident defend, ants. The defendants claimed through the proceedings, and it was for them to put in evidence, if not absolutely every paper • in the enrolled record, at least all which had any bearing upon the question whether the proceedings, as a whole, had divested the title of Whitehouse; for the ques7 tion was not simply upon the independent effect of each separate paper constituting the record, but upon the joint effect of all taken- together. The effect of one paper, or part of the record, might modify that of another; the defendants could not select such as might operate in their favor and throw upon the plaintiff the proof of those parts which might operate against them; the latter as well as the former must be treated as a necessary part of the defendants’ evidence. It was not for the plaintiff to show the invalidity of the proceedings, but for the defendants to show their validity by the introduction of every part of the record having a bearing upon the question.

The defendants, however, instead of offering the whole record of the proceedings in the suit, offered, first, the bill separately. To this the counsel for the plaintiff objected, on the ground that it formed but a part of the entire record, and was not admissible without the rest of the record; this objection was overruled, and the bill read. Defendants then offered in evidence separately and successively certain subsequent proceedings in the cause; the order for the appearance of Child and Whitehouse, nonresident defendants, made by the Injunction Master, January 27th 1851; the affidavit of its publication; the order pro confesso as to Child and Whitehouse, and several subsequent proceedings, including the final decree and sale, and order confirming the sale, and other proceedings- not necessary here to be specified. To many of these, besides the general objection already noticed, the counsel for the plaintiff objected on specific grounds, and especially on the ground that the Circuit Court in Chancery had acquired no jurisdiction of Child and Whitehouse. All, however, were admitted under exception.

It does not appear that the whole record was offered at any time, nor even all those parts of the record which related to Child and Whitehouse, or which might affect their interests. No affidavit, upon which alone the order for the appearance of Child and Whitehouse could be made, was read or offered, nor does it appear whether such affidavit was among the enrolled papers which constituted the record. The only intimation that such an affidavit ever existed is the recital of the fact in the order for appearance and publication granted by the Master, which purports to have been based upon such an affidavit.

The statute under which the proceedings were had, Rev. Stat. of 1846, p. 497, §11; Comp. L. §4626, provides, “If any parties having an interest in such lands are unknown, or if either of the known parties reside out of this State, or can not be found therein, and such facts be made to appear to the Court by affidavit, an order may be made by the Court, containing a sufficient description of the premises, &o., and requiring all persons interested to appear and answer the bill by a day in such order to be specified; which order shall be personally served, or shall be published,” &c.

Without at present expressing any opinion as to the power of the Injunction Master to grant the order, or the sufficiency of the description of the premises, we will first dispose of the question in respect to the affidavit.

It is manifest from the statute above cited, that this affidavit is an indispensable pre-requisite, and the sole foundation of the jurisdiction to make the order, whether made by the Court in term or by the Injunction Master, if the latter was competent to grant it at all, under the statutes and rules of Court then in force and since repealed. Without the affidavit no order could be made, and without the order the Court could have acquired no jurisdiction as to Whitehouse or Child, and all the proceedings as to them must be void. We think therefore this affidavit constitutes an essential part of the record, quite as essential as the order founded upon it, and if any was in fact made, we must, till the contrary appears, presume that it was made a part of the record; and it should therefore have been introduced by the defendants, that the Court might see whether it complied with the statute. I say nothing here upon the subject of accounting for its absence or proving it otherwise than by the record, as no such question arises here.

Under this statute the rights of parties residing out of the State may be affected, and their title to real estate to any amount may be divested, without any actual notice that a suit has ever been instituted. The power thus to affect their rights depends entirely upon the statute. The statute can not therefore be enlarged by any equity of construction as against them, but upon every principle should be strictly construed; it must be held to prohibit the exercise of the jurisdiction until the preliminary steps required by the statute have been taken: — Gallatin v. Cunningham, 8 Cow. 370, per Woodworth J. Courts are bound by the dictates of natural justice carefully to scrutinize every step of the proceedings, to enforce a strict compliance with all the statute requirements, that absent parties may not be deprived of those safeguards which the statute has provided for the protection of their rights. Without this vigilance on the part of Courts, the statute which was intended for the advancement of justice, may be made a most efficient instrument of fraud.

These proceedings in partition, at least as to non-resident defendants, do not come within the general or ordinary jurisdiction of Courts of Chancery, but the jurisdiction as to such proceedings is special and limited, .and entirely dependent upon the statute. The Circuit Courts in Chancery, though in ordinary cases of equity cognizance courts of general jurisdiction, must, we think, as to these special proceedings, be considered as courts of special and limited jurisdiction, and no presumption of jurisdiction should be indulged as in suits at common law, or ordinary suits in equity, in courts of general jurisdiction. All the necessary facts to confer jurisdiction must therefore affirmatively appear upon the record. See Denning v. Corwin, 11 Wend. 647; Foot v. Stevens, 17 Wend. 488, remarks of Cowen Judge upon case last cited; Gallatian v. Cunningham, 8 Cow. 370, per Woodworth J.; Thatcher v. Powell, 6 Wheat. 119; Shivers v. Wilson, 5 Mar. & John. 130; Eastman v. Jones, 2 Yerg. 493. I am aware there have been some decisions to the contrary; but as to special proceedings to acquire jurisdiction over non-residents, without actual notice, I think this the only safe rule.

But it is insisted by the counsel for defendants in error, that the recital in the order that such an affidavit had been presented, is sufficient evidence of the fact till the contrary appears. We have already shown that, upon the hypothesis that such an affidavit was made, it must, in the absence of all proof to the contrary, be presumed to form part of the record; and, this being so, the failure of defendants to offer it, and their reliance upon fhe secondary evidence furnished by the recital, warrants the inference that if produced it would not have been found sufficient to warrant the proceedings. And if not found of record, where it naturally belongs, as the very foundation of all the proceedings, its absence, unexplained, would authorize quite as strong an inference against the existence- of a sufficient affidavit, as the recital of the master would warrant in its favor. We have not, upon careful consideration, been able to discover any principle upon which the recital of this preliminary jurisdictional fact can be received as evidence of it. Without the previous existence of the affidavit no order could be made which would be evidence of any thing. To make the order evidence of the affidavit, is, then, merely to assume the prior existence of the affidavit which alone could make the order evidence of it. This would be reasoning in a circle. It can not require the aid of authorities to prove that such reasoning is fallacious; assuming the very fact to be proved;' nor could any amount of authority render it sound. See however, Green's heirs v. Breckenridge's heirs, 4 T. B. Monr. 544; Peers v. Carter's heirs, 4 Litt. 228 ; Hartley v. Bloodgood, 16 Ala. 233 ; Hanson v. Patterson, 17 Ibid. 738; Randall v. Songer, 16 Ill. 27; Boyland v. Boyland, 18 Ill. 551. It is true these are cases in which the question arose in the same cause in an appellate Court. But we think as to facts necessary to confer jurisdiction over non-resident defendants, when no actual notice has been given, and they have not appeared, the same rule should apply.

We think, therefore, as no jurisdiction of the Circuit Court in Chancery was shown as to Child or Whitehouse, the proceedings in that case were erroneously allowed to go to the jury; that the Court on the trial of the eject.ment ought to have charged the jury (as requested by plaintiff’s counsel) that no jurisdiction was shown. ' The judgment should be reversed, with costs. We do not deem it necessary to pass upon the other questions raised in the case, many of which may not again arise, and others may be presented in a different form. The judgment should be reversed, and a new trial granted.

Manning and Campbell JJ. concurred.

Martin Ch. J.:

I concur with my brethren that the judgment should be reversed and a new trial granted. But I concur in the result, for the reason that I think the bill in the suit in Chancery between Goodhue and Child, Whitehouse and others, was insufficient to make Whitehouse a party, and because the right and title of Whitehouse was not determined by the decree. His interest was not set out as required by the statute, and the master reported that he had none, when in fact he had the whole of Child’s title, by a deed duly recorded. The decree therefore virtually dismissed the bill as to him; at any rate, it made no partition or disposition of his interest.

As to Child, I think the decree would be binding if he had any interest; for the proceeding for partition was within the general jurisdiction of the Court, and the order of publication was regularly made. If we hold that this is a special proceeding, or that every jurisdictional fact must be affirmatively shown, we shall strip the Court of most of its general jurisdiction. Every presumption is to be made in favor of the regularity of proceedings in partition cases as in others; and the recitals in the orders of the Court are to be taken as true.

This rule, I think, applies to the order of the Injunction Master in this case. I have no doubt of his authority, nor that his act was the act of the Court.

The offer of the defendants to show the proceedings and decree in the Chancery suit, although' perhaps irregular, was not error, for it appears that the enrollment, so far as affected the rights of the litigating parties, and probably the whole, was given in evidence. The mode and order in which evidence is given, although they may be irregular! are not ground of error, if all be introduced which the law requires. I think also that the evidence of Gould and others, tending to show that the deed to Whitehouse was intended as a mortgage, was improperly received. My reasons for this opinion may be found in Fuller v. Parish, 3 Mich. 311, and will be more fully expressed in another ease.

Judgment reversed.


source: Caselaw Access Project

author: Manning J.:

license: Public Domain

text:
    Embree Bullard v. John W. Green and others.
    'A much stronger case must be made to set aside a sale under a decree in Chancery after confirmation of the report of sale than before.
    On. an application to set aside a sale in Chancery, the Court cannot inquire into the regularity of tho foreclosure proceedings, or ..whether the decree is for a greater or less sum thau it should'have been.
    The Court will not set aside a sale in Chancery on the ground of surprise, when the surprise complained of springs from tho negligence and inattention of the party himself who complains of it.
    A sale in Chancery at the price of $850 will not he set aside on the ground of inadequacy of consideration, where the petition states the premises to be worth $700, and tho evidence is that they have since been sold by the purchaser at that price on long time, hut that for cash they are not worth over $400.
    Nor if the inadequacy of price was sufficient, would it he set -aside on a petition presented -six months after the sale, and which does not sufficiently excuse this delay.

      Submitted on briefs May 6th.

      Decided May 30th.

    Appeal in Chancery from Washtenaw Circuit.

      A. Felch for appellee.

      O. Ila,whins for appellant.
   Manning J.:

This is - an appeal from an order setting aside a sale of mortgaged premises and ordering a resale, after confirmation of the commissioner’s report of sale. A much stronger case must be made to set aside a sale after confirmation of the report of sale than before. When the report of sale was confirmed does not appear from the .papers before us; but it was most probably soon after the sale, which took place on the fourteenth of January-1859. The petition on which the Court acted was sworn to, and the notice of its presentation to the Court is dated on the eighth of July 1859 — six months, within a few days, after the sale. And all the material facts stated in the petition must have been as well known to the petitioner or his attorney before the report of sale could have been confirmed, under the practice of the Court, as on the day the petition was sworn to. The material facts are, surprise; the petitioner’s want of notice of the time the sale was to take place until the day before the sale; his inability to attend the sale on account of sickness, and the inadequacy of the price paid for the mortgaged premises by complainant, who was the purchaser. There are other matters stated foreign to the object of the petition, that cannot be looked into, however important they might have been in the foreclosure suit. On an application of this kind the Court cannot inquire into the regularity of the foreclosure proceedings, or whether the decree was for a greater or less sum than it should have been. They must be reached in a different way, as the decree closes the door against such inquiries on an application for a resale under it.

The surprise of the petitioner by the sale — if he was surprised — was a surprise of his own seeking, or more correctly speaking, a surprise occasioned by his own and his attorney’s negligence in not attending to his business.

Petitioner had sold the mortgaged premises to one Hastings, subject to the mortgage; and Hastings after-wards sold them, also subject to the mortgage, to one Wilsey.

The surprise complained of would seem to be this: that at the commencement of the foreclosure proceedings petitioner was led to believe, from a conversation he had with complainant, that Hastings and Wilsey, or one of them, would take care of the mortgage, and that under that impression he had omitted giving any attention to the matter, and did not know "what had been done in the suit until the day preceding the sale, when he was 'too unwell to attend and bid off the mortgaged premises, or procure some one to purchase them at an amount sufficient to pay off the mortgage. Such a case is shadowed forth in the petition, but it is not sustained by the facts stated in the petition and accompanying affidavits.

Petitioner was not induced to pay no attention to the foreclosure by the conversation he had with complainant. He employed an attorney to attend to the suit; and his attorney, after a decree, and a sale of the mortgaged premises under it, had • both the decree and sale set aside. But neither attorney or client appear thereafter to have taken any further interest in the suit until we find the attorney, after another decree had been obtained and the mortgaged premises had again been advertised to be sold» writing a letter to his client informing him of. the day of sale, which the client received on the day before the sale was to take place. The employment of an attorney to attend to the foreclosure by petitioner shows he was not thrown off his guard by any thing complainant had said to him. And if the new decree and advertisement of sale under it is the surprise complained of, who is responsible for it except himself or attorney? Certainly not the complainant.

Was petitioner surprised that. Hastings & Wilsey had not taken care of the mortgage? As they had not done so on the first sale, what reason had he to suppose they would afterwards ? There is no pretence of a promise from them to that effect. Hastings having sold the mortgaged premises to Wilsey, was no longer interested in the mortgage or land; and Wilsey was in California both when the bill was filed and at the time of sale.

The surprise stated in the petition, then, is the surprise of negligence and inattention, and must be cast aside as forming no part of the petitioner’s case, which is left to Stand on petitioner’s illness and the inadequacy of price at which the mortgaged premises were sold.

The petitioner says “if he had not been taken by surprise by said sale, he has no doubt he could have procured a purchaser at a sum equal to the whole indebtedness upon said decree, together with the costs.” In this it is to be observed he makes no mention of his illness, but of his surprise, which we have already thrown out of the case, in wanting time to look up a purchaser. Had he stated it was his intention to attend the sale and bid off the premises, if they did not sell for enough to pay the decree and costs, but was prevented by illness; and that after the sale he had applied to complainant to consent to a resale on payment of costs, and on his refusal had taken steps to have the sale set aside before the report of the Commissioner was confirmed, his case would present a wholly different aspect from what it does.

As to inadequacy of price — standing alone and unsupported by other equities — a stronger case than the one before us, when the application is made in season, should be siyown to warrant the interposition of the Court. The mortgaged premises were sold for $850. The petition states they were worth from six to seven hundred dollars, and had been sold by complainant to one Leek for that sum. Leek states that he purchased them at that price, payable in seven annual payments of $100 each with interest, but that they were not worth in cash over $400.

If the inadequacy of price was sufficient, the diligence and preliminary steps already indicated have not been taken by petitioner, and no sufficient excuse is given for the extraordinary delay of six months after the sale before the presentation of the petition.

The order for a resale must be vacated, and the Commissioner’s report of sale be confirmed, with costs.

The other Justices concurred.


author: Mahtin Ch. J.:

text:
    Charles P. Trombly v. Philo Parsons.
    It is no objection to a judgment entered up in the Circuit Court by confession, that the warrant of attorney is upon the same pioce of paper as the note it authorizes judgment to be taken upon. The warrant of attorney and note are still to he regarded as separate instruments, notwithstanding they are thus connected.
    The note and the warrant of attorney bearing different dates, are to be presumed to have been executed at the times they severally bear date, notwithstanding they are upon the same paper.
    But it is not a valid objection to a judgment by confession that the warrant of attorney was executed at the same time as the note upon which it authorizes judgment.

      Heard November 1st, 1861.

      Decided May 30th.

    Error to Wayne Circuit.
    Parsons took judgment against Trombly in the Court below, by confession, upon a note dated July 9th, 1861. Below the note upon the same sheet of paper was the warrant of attorney, which was dated July 16th, 1861, and authorized judgment to be entered up, “on the promissory note hereto attached,” on any day after September 3d, 1861.

      A. Bussell, for plaintiff in error,
    insisted tbat tbe authority to,, confess the judgment is not distinct from the note, within the requirement of the statute. — Comp. L. § 4441. The warrant of attorney should describe the note as a mortgage describes the obligation it secures, and be complete in and of itself without any reference to the debt.— Burr. App. § 992; 2 Burr. Pr. 236; Grah. Pr. 767. The fact that there are two signatures, one to the note and one to the warrant, does not transform the paper into two instruments. Such is the ordinary form of the judgment note, in common use in Illinois and Wisconsin, and which is the very thing meant to be prohibited by our statute.

      G. P. Crosby for defendant in error.
   Mahtin Ch. J.:

The statute (Comp. L. §4441) permits judgment by confession when the authority to confess such judgment shall be conferred by some proper instrument distinct from that containing the evidence of the debt or obligation for which the judgment is confessed, and capable of being produced and filed with the clerk of the court in which the judgment is entered. The Legislature did not intend to restrict, by this provision, the right of the debtor to make such contract as he might find necessary, or most advantageous to himself, but to establish a rule of practice under which judgments by confession might he entered in vacation, as well as in term. • In other words, it was an extension of the common law practice to the entry of judgments in vacation. All that is requisite, therefore, is that a demand exists, and that the authority to confess judgment be conferred by a separate instrument from that containing the promise or obligation. This is technically denominated a warrant of attorney. The time of the execution of such warrant is immaterial; as the statute has imposed no restriction in this respect, and none was imposed by the common law in cases where judgment was authorized to be confessed in term. By both the statute and the common law, the power must be in a separate instrument from that containing the promise or obligation, although it may be a part of the contract that such power should be given. The fact that these provisions of the statute accord with the common law practice, prove that they are practice regulations only, and were not designed to restrict the rights of contracting parties to make their own bargains, if otherwise lawful.

In the case before us, the warrant of attorney was dated some six days after the day of payment fixed in the note, and some three days after it actually became due; namely, on July 16th, 1861. It authorizes judgment to be confessed at any time after the third day of September thereafter, and, although it does not describe the note upon which the confession might be made, it refers to it as thereto attached. ;If the note had been particularly set out or described in tbe warrant of attorney, it is not questioned but that a judgment confessed under tbe warrant would be good: and I cannot see upon any sound reasoning- or principle wby tbe reference in tbis .case, wbicb is merely for description, should invalidate tbe warrant. Tbe instruments are as distinct as if drawn on separate pieces of paper.

For ought that appears tbe note and warrant were executed upon tbe days of their respective dates, and such we must presume to be tbe fact. If so, except upon-the most technical grounds, tbe warrant would be good, while if it were otherwise, and they were executed simultaneously, they are still separate instruments, within tbe letter and spirit of tbe statute.

Tbe judgment is affirmed, with costs.

Tbe other Justices concurred.


author: Campbell J.: Martin Ch. J.:

text:
    The People on the relation of Adna H. Gough v. The Township Board of Zilwaukie.
    The highway commissioners of a township drew orders upon the township treasurer, payable out of any moneys in the treasury belonging to one of the road districts. These orders were not paid, and a mandamus was applied^ for to compel the township board to levy a tax on the township for their payment. But there being nothing in the case to show that the township had had the benefit of the district fund, by misappropriation or otherwise, the mandamus was denied. *

      Heard January 16th.

      Decided May 30th.

    Error to Saginaw Circuit.
    Gougb was the bolder of several orders, drawn in 1854, by tbe highway commissioners of ZilwauMe, on tbe treasurer of that township, directing him to pay to one Russell or bearer certain moneys mentioned therein, out of any moneys in tbe treasury belonging to road district number one. At tbe bottom of each order was a certificate, signed by tbe commissioners, that tbe sum was given for labor performed or materials furnished for ¿said road district. In 1859, the township board passed a resolution instructing- the treasurer to pay no highway orders drawn prior to that year. Gough subsequently presented his orders for payment, and this being refused, applied to the township board to levy a tax for their payment; which was also' refused. He then applied to the Circuit Court for a mandamus to compel the township board to levy a tax for this purpose. This application being denied, he sued out a writ of error.
    It appears by the finding of facts by the Circuit Judge, that the whole amount of tax levied in the township for 1854, was $2,111,20, of which $1,000 was for highway purposes. Of the amount so levied $1,826,29 was returned to the county treasurer unpaid, and $1,188,76 of this sum was rejected as being informally assessed. The amount of orders drawn by the commissioners against the highway fund that year was nearly $1,000. During the six following years the amount raised in the township for highway purposes was $586,20, and the amount of orders drawn against the highway fund $484,33. But how much of the highway moneys collected belonged to district number one, or what disposition was made of the funds of that district, was not shown.

      Sutherland & Miller, for plaintiff in error.

      Moore & Gaylord, for defendant in error.
   Campbell J.:

This case comes for up review upon the decision of the Circuit Court for the county of Saginaw, upon the issues of law and fact arising where a mandamus was applied for to compel the respondents to vote a township tax to pay-certain debts.

The relator is holder of a number, of orders issued by the highway commissioners of the township in 1854, upon the town treasurer, payable out of any moneys in the treasury belonging to road district No. 1.

As these funds were not the property of the township for general purposes, but were set apart by law to be expended in a single district, they consist only of such highway taxes as are raised in the same district. There is nothing in the case to show that the township at large has had the benefit of any of this fund, by misappropriation or otherwise. If any such fact appeared it would present a question in what way, if any, the law provides for its being restored to the use of the road district. In the absence of any such showing there can be no good reason for taxing the whole township for the benefit of a single district, and we have not been able to discover any statute either requiring or authorizing it. As the relator is not upon these facts entitled to any relief against the town, we deem it unnecessary to consider any of the other questions raised. The mandamus was properly denied, and the judgment must be affirmed, with costs.

Manning and Christiancy JJ. concurred.

Martin Ch. J.:

I doubt the jurisdiction of this Court to review proceedings of this nature by writ of error; and, as the question was not discussed, I reserve my opinion upon that subject. Upon the merits I concur with my brethren.


author: Martin Ce. J.:

text:
    Edward Osborne v. William W. Robbins.
    An application, to a Circuit Court Commissioner for the dissolution of an attachment must state the reasons therefor.
    It should show that the defendant’s property was attached, and describe the property; the first because the jurisdiction of the officer is dependent upon it; the second because no order respecting the property can be made unless tho property be known; and because without these, there would not be sufficient certainty as to the defendant’s property and right.
    A statement in an application in such a case that “ on said attachment writ some of the goods and chattels of this applicant have been seized,” is insufficient.
    The application in these cases should be verified by oath.

      Heard November 8th, 1861.

      Decided May 30th.

    Certiorari to Ervin Palmer, Esq., Circuit Court Commissioner for the'county of Wayne.
    Robbins presented to the Circuit Court Commissioner an application in the following words:
    “ To E. Palmer, Esq., Circuit Court Commissioner, Wayne county, Michigan.
    “The application of William W. Robbins shows, that on the 22d June, 1857, one Edward Osborne sued out of the Circuit Court for the county of Wayne, a writ of attachment against the goods, &c., of this applicant, and annexed thereto an affidavit that this applicant was indebted to him on contract express, in the sum of §522, and that he had good reason to believe, and did believe, that this applicant had fraudulently contracted the said debt, and that this applicant had assigned and disposed of ¿his property with intent to defraud his creditors; and your applicant says that he did not fraudulently contract said debt; and further, that he has not disposed of, and has not assigned, any of his property with intent to defraud any of his creditors; and further, that on said attachment writ some of the goods and chattels of this applicant have been siezed. He therefore prays that the said attachment be dissolved, &c. July 24th, 1861.
    W. W. Robbins.”

      On this application a citation was issued to the plaintiff, and a hearing had. On the hearing, it was shown that after the property was attached, writs of replevin were sued out, one by John Niblo and the other by Elisha Shephard, upon which the whole of the property attached was taken from the Sheriff, and that the affidavits attached to these writs of replevin were made by Robbins.
    The Commissioner made an order dissolving the attachment.

      Maynard c6 Meddaugh, for plaintiff in error.

      W. Gray, for defendant in error.
   Martin Ce. J.:

To authorize a Circuit Court Commissioner to issue a citation to a plaintiff in attachment requiring him to show cause why the attachment should not be dissolved, an application or petition must be presented to him by the defendant whose property has been attached; and the apjfiication should state the reasons therefor. As this is a special proceeding, the statute must be strictly complied with.

The application should show that the defendant’s property was attached, and should set it forth: the first because the jurisdiction of ¿the officer is dependent upon it; the latter because no order respecting the property can be made unless the property be known, and because without these there would not be sufficient certainty as to the defendant’s property and right.

In the present case, Robbins neither alleges a right to any property, nor sets it forth, unless by the general expression that some of his property was attached. This we think to be wholly insufficient; and, in view of the facts stipulated to exist, I think evasive. The reason for the-rule is very well illustrated by this case; for certainly it would appear that most, and perhaps all of the property attached, belonged to others; and yet some trifle belonging to Robbins may have been taken, so that he could safely make the general statement which he did.

We think the rule is just, and necessary to the security of parties, and persons interested in the property taken.

Although the statute does not in express terms require the petition to be verified, yet, according to all analogies and rules of practice, we think this should be done, and that such was the intent of the Legislature. Certainly no mischief would follow such a requirement; while great mischief may often result from a want of it. As matter of practice we therefore hold that petitions or applications for the dissolution of attachments, must set forth the property taken, and aver the petitioner’s right to it, and that they must be verified by oath.

The order of the Commissioner should be vacate'd.

The other Justices concurred.


author: Manning JA

text:
    The Western Massachusetts Insurance Company v. George S. Riker and another.
    A policy of insurance one of the conditions of which is that “in case of any sale, transfer or change of title in the property insured, such insurance shall be void and cease,” is avoided by a conveyance which is absolute in form, though given as security for a debt merely.
    And where tho insurance is upon a single building, and the conveyance is of an undivided interest only, the conveyance avoids the whole policy, notwithstand* ing the interest of the insured remaining nnconveyed is shown to exceed in value the sum insured.

      Heard April 30th.

      Decided June 3d.

    Error to Genesee Circuit. The case, so far as passed upon, will be found stated in the opinion.

      D. B. Duffield and G. V. N. Lothrop, for plaintiff in error,
    to the point that the deed given by the insured avoided the insurance cited, 13 Gray, 433 ; 1 Allen, 311; 29 Me. 292; 16 Barb. 257; 1 Seld. 405 ; 17 N. Y. 402; 30 Pa. St. 311; 26 Conn. 165; 31 Pa. St. 438; 18 Mo. 128; 22 Ill. 272; 23 Barb. 623.
    W. Newton and M. Wisner, for defendant in error,
    argued that the object of the condition attached to the policy, prohibiting a sale, transfer or change of title of the property insured, was to prevent the insured from parting with their title during the continuance of the policy, upon the principle, doubtless, that so long as the insured retained their interest in the premises, there would be a strong motive to protect them, and guard against fire. An entire alienation of the whole title would make the policy void under this clause.
    But in Michigan (as in most of the other States) a mortgage -is neither a “ sale, transfer, or change of title” of the property mortgaged. The mortgagee has a chattel interest merely, — 3 Mich. 581, — and the giving ofAa mortgage is not prohibited by this condition: — 23 Pick. 218; 11 Barb. 624; 3 Denio, 254; 1 Comst. 290; 10 Pick. 40.
    If wrong in these positions, still as the conveyance by the insured was of an undivided third only, the interest the insured retained was far beyond the amount of the insurance; and this interest is to be protected unless a conveyance of a part of the premises is prohibited by the condition: — 16 Wend. 385. The policy is only avoided to the extent of the interest sold.
   Manning JA

One of the conditions attached to the policy of insurance, and forming a part of it, is in these words : “ And in case of any sale, transfer or change of title in the property insured by this company, such insurance shall be void and cease.” The property insured was a three story frame flouring and grist mill, belonging to the insured. After the insurance and before the fire, the insured conveyed an undivided one-third interest in the premises on which the mill stood, to Latourette. The conveyance was in the usual form, but was. intended by the parties to it as security to Latourette for a debt the insured were owing him, and to secure further advances to be made to them by Latourette, who, after the fire, on being paid what was due him, reconveyed the premises to the insured.

The Insurance Company insist that the conveyance to Latourette annulled the insurance, under the condition of the policy above stated. The company also insist that the Court erred in admitting parol evidence to show the conveyance to Latourette was intended as security only for what the insured were owing him, and for further advances. While, on the other hand, the insured insist they had a right to introduce on the trial parol evidence for that purpose; and that if the Court erred in admitting it, they are still entitled to recover the whole amount insured, which is §2,000, as the mill, which was wholly destroyed by fire, was shown on the trial to have been worth §6,000 at the time of the fire; or if they are not entitled to the §2,000, that they are entitled to two-thirds 'of the insurance, as they had only conveyed to Latourette one-third of the mill.

The words transfer or exchange of title are more comprehensive than the word sale, which immediately precedes them. A sale is a parting with one’s interest in a thing for a.valuable consideration. This is what is generally understood by the word, and in every sale there is a transfer or change of title from the vendor to the vendee. But there may be a transfer or change of title' without a sale. Should A. convey a piece of property to B. to hold in secret trust for him, there would be a transfer or change of title from A. to B., but there would not be a sale ofi the property, or an actual parting with it to B. for a valuable consideration, although the conveyance on its face would import a sale of it by A. to B. And if the trust instead of being secret appeared on the face of the conveyance, there would still be a change of the title. The title would no longer be in A., but in B. his grantee. We think such a conveyance would clearly come within the condition of the policy, and put an end to the insurance. And if such a conveyance would annul the policy, we see no reason why the conveyance to Latourette should not have that effect. The title to one-third of the mill was in him, and not in the insured, when the fire occurred. There can be no doubt that the deed, being absolute on its face, and not in form a mortgage, placed the title in Latourette. He could have sold the property and conveyed a good title to his vendee, if the latter was ignorant of the circumstances under which he had acquired the title. It is immaterial, therefore, for the purposes of the present suit, whether the insured could\ or could not at law show by parol evidence that the conveyance was intended as security merely, as such evidence would not show the title had not been in Latourette, but that he had done no more than his duty in reconveying the property on being paid what was due him.

But it _ is insisted the conveyance does not affect the insurance on, the other two-thirds of the mill. If the insurance was of two separate buildings or piece of property, and one only had been conveyed* we are inclined to think it would not affect the policy as to the other: — Clark v. New England Mutual Insurance Co., 6 Cush. 342. The mill was an entirety, and insured as such. The title was changed: not the whole title, but a part of it. The whole title was in the insured at the date of the policy; when the fire took place two-thirds of the title only was in them, and one - third in Latourette. This is a change of title to the entirety of the thing insured. See Dreher v. Ætna Insurance Co., 18 Mo. 128; Dix v. Mercantile Inswrance Co., 22 Ill. 272.

For these reasons we are of opinion the Court below erred, and that the judgment should be reversed, with costs.

Martin Ch. J. and Campbell J. concurred.

•Christiancy J. was absent when the case was decided.


author: Martin Ch. J.:

text:
    The Collins Iron Company v. Elzey G. Burkam.
    The validity of a contract mad© in another State and payable there, will be deter* mined by the law of that State.
    And where such a contract is usurious, but the law of that State ¿Loes not avoid it on that ground, but only affects the remedy’ upon it, the courts of this State can enforce the contract, but- by no other remedies than those afforded by our own law.
    The provisions of the Ohio statutes which provide for the recovery or appropriation of usury paid upon a contract, form no part of the contract, but relato solely to the remedy which will bo afforded by the courts of that State to the party from whom, usury is taken.
    Where on a settlement of certain bills of exchange, an amount is included in a new bill given for the balance, as statutory damages for the dishonor of the bills settled, and the statute allows no such damages, the ‘new bill is to that extent without consideration.

      Heard November 21st, 1861.

      Decided June 3d.

    Error to Wayne Circuit.
    This was an action of assumpsit, brought by the defendant in error against the plaintiffs in error as the acceptors of a bill. of exchange, drawn by C. A. Trowbridge, upon them, for §1,304,22, dated Cincinnati, April 12th, 1858, and payable at the office of E. G. Burkam &¡ Co., at six months, with ten per cent interest.
    The defendants below pleaded the general issue, and gave notice of a set off, and also that the bill declared on was given in settlement of a series of money transactions between them and Burkam, during which they had paid to him the sum of §717.54 for interest beyond the rate allowed by the laws of Ohio, where the transactions took place; that the transactions were usurious to that extent; and that by the laws of Ohio they were entitled to have the interest, so illegally taken, applied in reduction of the principal.
    The issue was tried by a jury, and the evidence disclosed the following facts:
    In April, 1857, The Collins Iron Company sold to the firm of Shreeve, Steele & Co., of Cincinnati, Ohio, a quantity of iron. The sale was made upon the suggestion and recommendation of Burkam, who stated that they were good, and he would cash their paper for from five to fifteen thousand ¡dollars. The Collins Company accordingly made the sale of iron, and drew four drafts upon Shreeve, Steele & Co., amounting in all to #10,679.13. The first one was dated and drawn in Detroit, the other three were drawn in Cincinnati. They were all payable in Cincinnati. They were all endorsed by C. A. Trowbridge, and discounted by Burkam for the Collins Co., and the proceeds paid deducting interest at the rate of one per cent, per month. Shreeve, Steele & Co. failed to pay their acceptances at maturity, and they were all protested, and the drawers and endorsers notified.
    In April, 1858, Trowbridge, as the treasurer and managing officer of the Collins Co., went to Cincinnati to endeavor to adjust the matters between his company, Shreeve, Steele &> Co., and Burkam. An arrangement was made that Shreeve, Steele & Co. should turn out iron at the market rates for the amount of their acceptances. This iron the Collins Co. were to take, and make such further deductions in price as would secure a prompt sale, and sell it to parties whose paper would be satisfactory to Burkam, and to such persons only. In accordance with this arrangement the iron was sold to sundry persons, and the notes received therefor were indorsed by the Col-fins Co. and Trowbridge, and delivered to Burkam. He refused to take them without such indorsement.
    Burkam also claimed that he was entitled to the sum of $246.34 for statutory damages, accruing to him by reason of the protest of the four acceptances of Shreeve, Steele & Co., alleging that -they were foreign bills of exchange. This Trowbridge, acting for the Collins Co., denied, asserting that they were domestic paper, but he finally reluctantly assented to the inserting of that item in the settlement.
    On the 12th of April 1858, a settlement was made thus; The amount of the four acceptances of Shreeve, Steele & Co., was assumed as the principal as of the date when the several acceptances 'became due. To this were added protest fees charged on each; interest at 6 per cent, per annum to April 5 th, and at 10 per cent, to April 12th, 1858 ; damages claimed as statutory damages under the laws of Ohio, at $245.34. The Collins Co. then paid in cash $490.80. The notes taken for the iron received from Shreeve, Steele & Co., were credited for their amounts respectively, less one per cent per month for the time they had to run; which left a balance of $1304.22, for which the draft was given on which this suit was brought.
    The following sections from the Statutes of Ohio were offered by the defendant below, and read in evidence on the trial.
    “ Be it enacted, &e., That all creditors shall be entitled to receive interest on all money, after the same shall become due, either on bond, bill, jn-omissory note,” &c. “ at the rate of six per centum per annum, and no more.’’
    “Be it enact&d, &c., That in all actions for the recovery of money, hereafter prosecuted in the courts of this State, all payments of money or property made by way of usurious interest, whether made in advance or not, shall be-deemed and taken, as to the excess of interest above the rate allowed by law at the time' of making the contract, to be payments made on account of the principal; and the said court shall render judgment for no more than the balance found due after deducting the excess of interest so paid; nor shall any debtor be deemed a particeps criminis on account of having paid, or having agreed to pay, such exorbitant interest, but shall have like remedy and relief in either case.”
    “Be it enacted, &c., That when any bill of exchange shall be drawn for the payment of any sum of money, and such bill shall be legally protested for non - acceptance or non-payment, the drawer or drawers, indorser or indorsers, shall be subject to the payment of twelve per cent, damages thereon, if drawn on any person or persons, or body corporate, without the jurisdiction of. the United States; and six per centum damages thereon, if drawn on any person .or persons, or body corporate, within the jurisdiction of the United States, and without the jurisdiction of this State: and the bills shall, in all cases, bear an interest of ■ six per centum, from the date of the protest, until the money, therein drawn for, shall be fully satisfied and paid.’’
    The counsel for the defendant beloV requested the Court to charge the jury—
    1. That if they should find that the first transaction was a loan from the plaintiff to the Collins Iron Company, on which a greater amount of interest was taken than was allowed by the laws of Ohio, then the excess of interest (over the legal rate) must be credited to the defendants in this suit.
    2. That, if the suit were now upon the original acceptances of Shreeve, Steele & Co., and brought by the plaintiff as endorsee against the defendant, -The Collins Iron Co., as drawer or endorser, he could not recover beyond the amount advanced by him and legal interest thereon.
    3. That if the plaintiff required an endorser in addition to the endorsement necessary to transfer the Shreeve, Steele & Co. acceptances to him, as a condition of discounting them, that is evidence tending to show that the transaction was understood by the parties to be a loan by the plaintiff to the Collins Iron Co., and not a purchase by the plaintiff.

      4. That if the jury find that at any time there was a debt due to the plaintiff by the defendants, then from that time, it was illegal under the laws of Ohio to take interest at a rate exceeding six per cent, unless a written agreement was made to pay a higher sum, and any such excess is to be credited to the defendants in this suit.
    5. That the plaintiff Was not entitled to any damages on the protest of the Shreeve, Steele & Co. acceptances, beyond legal interest.
    6. That the defendants in this suit are entitled to a credit for the full amount of the notes,, called the iron notes, less interest at the rate of six per cent, per annum for the time they had to run at the time they were taken by the plaintiff.
    But the Court refused so to charge; and charged the jury that the laws of Ohio, proved by the defendants, making it usurious to take over six per cent, interest, do not apply to an action in this State, upon such a contract made in that State, and therefore not to the contracts in question; to which refusal to charge, and to the charge as given, the defendants excepted.
    The jury found a verdict for the plaintiff, and assessed his damages at §945.78 — certain payments being credited— and judgment was entered thereon.

      H. K. Clarice, for plaintiffs in error:
    1. The discharge of or defense against a contract in the place where it was made, or to be performed, is the same everywhere: — 4 Cow. 514, and eases there collected; Story Confl. Laws, § 267 a; 2 Pars. Cont. 90; 1 B. & P. 133; 1 Bing. N. C. 151; 1 Martin, N. S. 202; 1 Met. 82; 12 Pet. 65; 6 Ohio S. R. 19; 7 Ibid. 387. The only question is, was it valid or invalid in the place where made ? As it would be held there, so it will be everywhere: — 2 Mich. 241.
    Whether the original transaction^ between the Collins Co. and Burkam was a loan, or a sale of commercial paper, was a question for a jury. If a loan, clearly under the law of Ohio we are entitled to have the excessive interest credited. The requirement of an endorsement is a very significant fact tending to show the understanding of the parties that the transaction was a loan and not á sale:— 2 Pars. Cont. 424-8.

    2. It is entirely immaterial in what manner or form, or under what pretence, unlawful interest is taken. The charge of $245 for statutory damages was only another device for securing excessive interest — and so the jury might have found if the Court had charged as we requested: — 4 Hill, 224.
    3. The endorsement of a note, on its transfer, so as to constitute the relation of debtor and creditor between the transferror and transferree, is a new contract between the endorser and endorsee: — 12 Wend. 439.. And the measure of damages -on such contract is the amount received under it, with interest: — 7 Wend. 569, The consideration may or may not be the same as that expressed in the note. If less, then by so much the less is the debt to the holder of the note, on which he would, under the laws of Ohio, be entitled to interest at six per cent, mid no more.

      A. Russell, for defendant in error:
    Admitting, for the purpose of the argument, that the bill of exchange sued on is an Ohio contract, and is usurious ; we say that the statutes of Ohio,, given in evidence by the defendant below, affect the remedy merely, and not the contract itself, and that a recovery against the acceptor, without any deduction for usury, in any jurisdiction other than that of Ohio,- must be sustained.
    The very phraseology of the Ohio act limits its operation to the courts of that State. See 14 Johns. 377; 7 Metc. 14; 4 Gray, 599; 12 Vt. 464; 32 N. H. 582; Sherman v. Gassett, 4 Gilm. 521; Story Confl. Laws §619; 2 Kent, 462.

      These decisions are. directly in point, and proceed upon the ground that the courts of one State will not enforce the penal laws of another State, or be guided by its statutes regulating forms of procedure.
    By the lex loci, that of Ohio, usury does not vitiate the contract. The contract then being legal, the lex for% that of Michigan, will enforce it.
    These views, and the above cases, were substantially approved by this Court in the recent case of Craig v. Butler, 9 Mich. 21.
   Martin Ch. J.:

There was no error in the refusal of the Circuit Judge to charge as requested concerning the first transaction and its effect; nor in the charge as given. The bill of exchange was executed under the law of Ohio, and was payable in that State; and its validity will be determined by the law of that State. As usury does not avoid a contract there, but only affects the remedy, we can enforce the contract, but by do other remedies than those furnished by our own statute. Those provisions of the Ohio statute which provide for the recovery or appropriation of usury paid upon a contract, form no part of the contract, but relate solely to the remedy which will be afforded by her courts to the party from whom usury is taken. Under our law, even, the first transactions would be satisfied by the subsequent ones, and the usury which was part of the first, if not contained in the last as an integral part, would afford no ground for partial defense to an action upon the last contract, either by way of payrAent, or of reduction or limitation of the arnount for which judgment may be rendered. See Thurston v. Prentiss, 1 Mich 193; Engle v. Shurtz, Ibid. 150; Craig v. Butler, 9 Mich. 21; Smith v. Stoddard, [ante, p. 148].

But we think the Circuit Judge should have instructed the jury that the plaintiff was not entitled to recover the $245.34 which Was included in th.e bill, and claimed as and for statutory damages. It appears that the statute of Ohio allows damages at the rate of six per cent on all protested paper drawn on any person, <fcc., within the jurisdiction of the United States, and without that of Ohio; and if the Courts of that State would give such damages in an action upon the demand, it was competent for the parties in settling, to include it in the new instrument or obligation given. But the plaintiff had no right to demand damages upon paper drawn upon individuals within the State; and while we think such excess was not usury, or required as such, we think it was without consideration, and should have been deducted.

For this reason the judgment is reversed, and a new trial granted.

Manning and Campbell JJ. concurred.

Chrtstiancy J. was absent when the case was decided.


author: The Court

text:
    Frederick A. Stokes v. Nathaniel P. Jacobs.
    Assignments of error are not necessary on common law cerfcioraris.

      Decided June 3d.

    Certiorari to a Circuit Court Commissioner, to review his proceedings on the dissolution of an attachment.

      A. Russell, for plaintiff in error,
    moved for leave to amend the assignment of errors; but
   The Court

held that it was unnecessary, as no assignment of errors is required on a common law certiorari.


author: Manning J.: Campbell J.:

text:
    Richard Dye and others v. Loomis Mann and others.
    It is not necessary either to aver or prove the consideration of an agreement under seal; as the seal itself imports a consideration.
    One member of a firm covenanted with the other to pay the debts of the firm, saving the other harmless therefrom. Such a covenant is not one of indemnity merely,, but an omission to pay the creditors as their demands became due would constitute a breach of it.
    Complainants guaranteed the performance of this covenant, and took from the covenantor mortgage security to pay them all sums they might pay or cause to be paid, arising in any ‘manner from the breach thereof. They filed their bill to foreclose the mortgage, alleging therein that they had upaid on the debts of the firm $1,000, as they were obliged to do by the terms and legal effect” of the covenant, “ on account of the default” of the covenantor. Held that this was a sufficient statement that they had paid after their liability accrued, and that it was not necessary to set forth in the bill the particular debts paid.
    It makes no difference in such a case that the payment of the debts was made by a part-only of the complainants, instead of by all jointly.
    On an appeal in Chancery from a hearing on pleadings and proofs, all matters of more form are to be disregarded, if the pleadings are good in substance.
    The Constitution secures against creditors a homestead to every family in the State. Not as a personal privilege to be claimed by the debtor, but as an absolute right necessary to the welfare of the household, of which the debtor can not be deprived, if an unmarried man, without some act of his relinquishing the right, or if a married man, without the joint conveyance of himself and wife.
    A subsequent mortgagee whose mortgage is executed by both husband and wife may take advantage of the invalidity of a mortgage given by a married man upon his homestead without his wife’s signature. Such mortgage by the husband alone is void for all purposes, and not merely as to the homestead interest.
    And where bill is filed to foreclose the invalid mortgage, and the subsequent mortgagee is made a party defendant, he may take advantage of the invalidity of the first mortgage by answer, without filing a cross bilL
    Where a married man gives a mortgage covering his homestead, without his wife’s signature, and the premises are of more than $1,500 value, the mortgage, though void as to a homestead of that value, is good as to the residue. On bill filed to foreclose such a mortgage, the Court ordered a reference to a Commissioner, to set off as a homestead so much of the premises, with the improvements, as was worth $1,500 at the date of the mortgage, including the dwelling house, and as far as practicable such of the outbuildings and other improvements as might be found most essential to the enjoyment of the homestead; to the end that on the coming in and confirmation of the report, the mortgage might be declared void as to the homestead thus set off, and good as to the residue.

      Heard January 13th and 14th.

      Decided June 3d.

    Appeal in Chancery from. Ionia Circuit.

      The bill was filed by Richard Dye, John O. Dexter and Stephen F. Page, against Loomis Mann and James Pattee, and set forth:
    That prior to September 5, 1854, Looomis Mann and David Morse had been partners as hardware merchants at Ionia; that on that day they dissolved their copartnership, and Mann, by an instrument under his hand and seal, agreed with Morse to pay all of the indebtedness of the firm, and to save Morse harmless from the payment of said debts; that complainants, on the same day, by an indorsement in writing on said agreement, guaranteed the fulfillment of the same on the part of Mann; that Mann made default in the payment of the partnership debts, whereby complainants became liable to pay large sums of money to the creditors of Mann & Morse, and for the purpose of indemnifying them against loss on account of said liability, Mann executed to them an instrument (given in full in the bill) by which he agreed “to pay to said John C. Dexter, Richard Dye and Stephen F. Page, all sums that they may pay, or cause to be paid, arising in any manner from the breaches or breach” of the instrument the performance of which had been so guaranteed by them. And to secure the performance of this agreement, Mann executed to them a collateral mortgage on certain premises in the village of Ionia County Seat, described in the bill, and containing one-fourth of an acre of land.
    The bill further states, that complainants “have paid to the creditors of the said firm of Mann & Morse the sum of one thousand dollars, as they were obliged to do by the terms and legal effect of the guarantee above set forth, on account of the default of the said Loomis Mann . and that, because of the said default, they are still liable to pay large sums of money not yet ascertained.” And the bill prays a foreclosure of said mortgage, and a sale of the premises to satisfy the amount so paid by them., Pattee was made a party as a subsequent incumbrancer.

      This bill was taken as confessed by Mann. Pattee filed an answer, setting forth, among other things, that he held a mortgage on the premises, given March 25, 1859, by said Mann, and Anna B. Mann his wife, for $1,755, all of which is unpaid; that at the time of the giving of the mortgage to complainant, Mann had a wife and several children, and resided with his family on the premises described in complainants’ mortgage, which premises then, and ever since, have constituted Mann’s place of residence and homestead, and did not exceed $1,500 in value; and complainant’s mortgage was therefore invalid for want of the signature of Mann’s wife thereto.
    Replication was filed to this answer, and testimony was taken which it is not deemed necessary to state more fully than as given in the opinion.

      Bell & Soule, for complainants:
    The objection that the bill contains no sufficient allegation of payment, should have been taken by special demurrer: — Hoff. Ch. R. 121; 7 Cow. 143. But the allegation is sufficient as it stands: —5 Johns. 168.
    The guaranty of complainants made them primarily liable with Mann for the payment of the debts: — 20 Johns. 364. It became their duty to pay them immediately on the default of Mann: —15 Wend. 509 ; 20 Johns. 364 ; 5 W. & S. 440. There being no time fixed for payment, if any debts were due the law required them to pay at once: — 3 Denio, 321, 324.
    The guaranty sufficiently expresses the consideration: — 4 Seld. 207.
    Pattee can not claim relief by his answer. If he desires to have our mortgage set aside as void, or delivered up and cancelled, he must file a cross bill: — Lube Eq. Pl. 142, note; Story Eq. Pl. §391 et seq.; 2 Barb. Ch. Pr. 126; 2 Mich. 472.
    The exemption of homesteads is for the benefit of the mortgagor and his wife and family, and they may waive or renounce the same if they choose, and no third party should have the right to interfere: — 4 Hill, 467; 3 Mich. 448; 28 Vt. 541. It is a personal privilege which third persons can not claim or set up: — 22 Barb. 656.
    But it is claimed that the lot is not such an one as is exempted. It can not be called an agricultural lot, by any correct .use of terms, and it is not exempted as a village lot: — 8 Mich. 488.

      G. V. H. Lothrop, for defendant Pattee:
    1. The bill is defective. It does not show any legal contract on the part of Mann to assume the debts of Mann & Morse. It discloses no consideration. It appears on the bill as a mere voluntary promise. And if invalid, the obligation of the sureties falls with it: — Theobald Prin. and Surety, 2; Edw. on Bills, 218.
    The liability of complainants on their guaranty (if that was valid) was to Morse only. And the contract and mortgage given to them were of indemnity against this liability. But the bill shows nothing paid on the liability to Morse, nor that he ever set up any claim, or requested any money to be paid to any one.
    The statement in the bill that complainants have paid $1,000 to creditors of Mann & Morse, is not sufficiently certain. And besides, the payment appears to have been entirely voluntary — the bill showing no liability to the creditors, nor even a request to pay, from either Mann or Morse.
    The original agreement from Mann to Morse, is one of indemnity merely. No time was fixed when the debts were to be paid. Mann was only to pay so as to save Morse harmless. But if it is to be construed as an agreement to pay absolutely, it must be either on request of Morse, or when the creditors required payment from Morse, or in a reasonable time. The bill is defective in not showing a breach of either of these terms.

      2. The proofs do not make complainants’ case any better. The payment made on the debts of Mann & Morse was by Dye & Page only. This might give them a good personal claim against Mann, but,none under the mortgage.
    3. The mortgage upon Mann’s homestead, without the signature of the wife, was a nullity, not only as the wife but as to the defendent: — 7 Mich. 506; 5 Wis. 534; 2 Gray, 384; 5 Cal. 504; 6 Cal. 71; 7 Cal. 342; 8 Gal. 66; 9 Iowa, 509.
   Manning J.:

Three principal objections are made to the decree of the Circuit Court by the defendant Pattee, the appellant.

I. That the bill of complaint makes no case.

1. Because it does not state any consideration for the agreement between Mann & Morse of the 5th September, 1854, that was guaranteed by complainants.

The bill states the agreement is in writing, and under the hand and seal of Mann. That is sufficient. The seal imports a consideration, and dispenses with a statement of the consideration in the bill, as well as proof of it on the hearing.

2. Because the liability .of complainants on their guaranty was to Morse only; and the agreement of 26th February, 1859, between Mann and complainants, which the mortgage was given to secure, was one of indemnity against that liability.

By the agreement of September, 1854, Mann covenants to pay all the debts then due and owing to the firm of Mann & Morse — saving Morse harmless. The covenant is to pay the debts of Mann & Morse, as well as to indemnify Morse against the payment. It contains a present absolute undertaking on the part of Mann, as well as a future contingent one, on either of which an action would lie in case of a breach. An omission to pay the creditors of Mann & Morse, as their demands became due, would be as clear a breach of the covenant as an omission to pay Morse after he had been compelled to pay them. In either case Morse would have a right of action on the covenant. The damages, is is true, in an action for not paying would be nominal; but still^the action would lie.

The guaranty is unconditional. The liability of the guarantors is consequently co-extensive with that of their principal. What gives a right of action against him at the same time gives a right of action against them. What it is his duty to do as covenantor, it is theirs to do as guarantors. And by the agreement of 26th February, 1859, Mann not only undertakes to save them harmless against payments they should be liable to make to Morse, but also to pay them “ all sums that they may pay, or cause to be paid, arising in any manner from the breaches or breach” of the agreement guaranteed by them. Language broad enough to include, and in fact including, and we have no doubt so intended by Mann, all payments made by them under their guaranty, whether to Morse of a debt that had been paid by him, or to a creditor of the firm, of a debt which Mann was bound to but had not paid.

3. Because the averment of payment in the bill by complainants is bad for uncertainty.

The averment is in the following words: “And your orators further show, that they have paid to the creditors of the said firm of Mann & Morse the sum of one thousand dollars, as they were obliged to do by the terms and legal effect of the agreement above set forth, on account of the default of the said Loomis Mann,’’ &o. We think the averment is sufficient. It is as certain as the covenant to pay; which is to pay the debts of the firm generally, without naming particular creditors. See Hughes v. Smith, 5 Johns. 168; Shum v. Farrington, 1 B. & P. 640; Barton v. Webb, 8 T. R. 469. Nor is the time of payment material, provided it was after the liability to pay accrued. This is sufficiently stated in substance, if not in form, in the averment that it was made on account of the default-of the said Loomis Mann. On an appeal from a hearing on pleadings and proofs all matters of more form are to he disregarded, if the pleadings are good in substance.

II. The second objection is that payment was made by two of complainants, and not by all of them. Their liability under their guaranty was a joint and not a several liability, and payment by any one or more of them was payment by all. Had the mortgage been given to secure them against a several liability, the mortgagees- not paying would in equity be trustees for those who had.

in. The third and last objection is that the complainant’s mortgage — being of a homestead — is void in consequence of the wife of the mortgagor not having united with him in giving it.

The state Constitution provides that a mortgage or other alienation of the homestead therein mentioned, “by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same.’’ Art. 16, § 2. In Beecher v. Baldy, 7 Mich. 488, this provision in the Constitution came under discussion, and was fully considered by the Court. And in speaking of the waiver by a debtor of his right to a homestead, the following language is used: “And when the householder is a married man, he can not, probably, by any waiver, consent to .a sale on execution, so as to render the sale valid without the consent of his wife. For, in such case, the validity of the sale would rest upon his consent in the same manner as if he had conveyed by deed; and if deeded, by him under the like circumstances, the deed would be void, even as to him, without the signature of the wife.” The effect of a conveyance by the husband was not before the Court for decision in that case; but, we are still of opinion, that the language quoted is a correct exposition of the Constitution, so far as it goes — wishing in no respect to amend it-, except to strike out tbe word “probably” in tbe first sentence. ,,

The Constitution — whatever may have been the intention of the pre-existing statute — we have no doubt was intended to secure against creditors a homestead to every family in the State. Not as a personal privilege of the debtor which, to be made effectual, would have to be claimed by him — placing him in an attitude to have his motives suspected, but as an absolute right, necessary to the welfare of the household, of which the debtor should not be deprived, if an unmarried man, without some act of his relinquishing his right; or, if a married man, without, the joint conveyance of himself and wife.

To the argument that a conveyance by the husband alone should be Held void only as to the homestead interest, and good for the remaining interest in the property, it is a sufficient reply to say, that the Constitution makes no such distinction, but declares such conveyance shall not be valid; that is, shall be void. If the language would admit of such a construction, it could not be adopted •without coming in conflict with the policy of the provision itself, and robbing that policy, in part, of its beneficence. A homestead thus incumbered would have no exchangeable value; and could not be used to procure another, in the same or at a different place, should the interest of the family require it. The Legislature have taken a more enlarged view of the Constitution, and provided by statute that when the homestead exceeds §1,500 in value, and is sold on execution, that amount shall be paid the debtor out of the proceeds of the sale, and be exempt from execution for one year thereafter — to purchase, it is to be presumed, a new homestead with: — Laws 1861, p. 541, § 3.

The mortgage, though void as to the homestead, is good for any excess over and above the homestead.

It appears from the proofs in the case, that the mortgaged premises consist of a quarter of an acre of land, with a dwelling house, bam and other outbuildings thereon, worth, according to the testimony of Mann, $2,000, and of another witness $1,800, at the time the mortgage was given.

Whether the premises are located within the village of Ionia, or outside of the village limits, is of no importance, as the value of the homestead can in no case exceed $1,500, and there is no evidence showing they exceed a village lot if within the village limits.

It was not necessary for defendant to file a cross bill to make the defense he sets up in his answer. lie asks no affirmative relief against complainants, nor is he seeking to foreclose his own mortgage.

The decree of the Circuit Court must be reversed, with costs, and a reference be made to a,Circuit Court Commissioner, to set off as a homestead, if the same can be done, so much of the lot with the improvements thereon as was worth $1,500 cash, on the 26th February, 1859, including the whole of the dwelling house, and, as far as may be found practicable, such of the outbuildings and other improvements as may be found most essential to the enjoyment of the homestead; to the end that on the coming in and confirmation of his report, a decree may be entered declaring the mortgage void as to the homestead so ascertained and set off, and good for the rest of the mortgaged premises, and a sale thereof if not redeemed, &c.

Martin Cn. J. and Cheistiancy J. concurred.

Campbell J.:

I concur in the result arrived at by my brother Manning. I think, however, that the bill is very defective in not alleging what persons and what debts against the partnership were paid, and I have had some difficulty in holding the allegations sufficient for any purpose. As there is no doubt, however, concerning the facts, and as the parties were mutually desirous of having the other points decided, I shall concur in the reversal of the decree, and the entry of one in accordance with the views expressed by my brother Manning.


text:
    Stephen F. Page and. Another v. Orson L. and Martha Kendrick.
    A conveyance valid when made cannot he invalidated by subsequent acts of the grantor, nor by the creation of subsequent debts.
    Bill in aid of an execution, ashing to have a conveyance made by the judgment debtor, before the indebtedness to complainant accrued, set aside on the ground that it was made with intend to defraud creditors. The hill alleged the grantor to have been considerably indebted at the time of the conveyance. The answer denied that ho was indebted beyond $300, and averred that he retained sufficient property to pay all his debts, Ko proofs having been taken on this issue, the bill was dismissed.
    The alleged fraudulent conveyance was by a man to his intended wife, whom he soon after married, and was averred in the answer to have been made to provide her a home. It was hold that the continued occupation of the land after the marriage by the husband, the neglect for some years to record the deed, and the mortgaging of the land by husband and wife for the husband’s benefit, did not raise a presumption of a fraudulent intent in making the conveyance.

      Heard January 8th.

      Decided June 6th.

    Appeal in Chancery from Ionia Circuit.
    The bill was filed in aid of an execution against Orson S. Kendrick. It set forth, that said Orson became indebted to complainants in May, 1857; that in September, 1857, they recovered judgment against him on this indebtedness, in the Circuit Court for Ionia county, and caused execution on their judgment to be levied upon certain lands in said county.
    The bill then alleges that said Orson was owner of these lands, December 14th, 1853, on which day he conveyed them to Martha Dodge, then his intended wife,whom he married in two or three days thereafter; that said Orson was then largely indebted to different persons, and that the deed to said Martha was without consideration, and for the sole and express purpose of defrauding the creditors of said Orson; that the deed was not recorded until after complainants brought suit on their demand; that said Orson has always occupied and enjoyed said premises, and has twice since giving the deed mortgaged them for his own benefit, his wife joining in the mortgages. And the bill prays that the deed be declared fraudulent, and the land subjected to the payment of complainants’ judgment.
    The defendants answered, denying that said Orson was largely indebted at the date of the deed; averring that the deed was made for the purpose of providing said Martha a home when the contemplated marriage should take place, the title of which should be in her, and subject to her control; and that said Orson at the time possessed abundance of other property to satisfy the claims existing against him, which did not in all exceed three hundred dollars. They admitted the allegations in the bill respecting the occupation and mortgaging of the premises, but denied all intent to defraud.
    Replication was filed to this answer, but no testimony was taken.
    The Circuit Court made decree as prayed by the bill, and defendants appealed.

      Bell & Soule for complainants.

      JD. W. Jachson for defendants.
   Martin Ch. J.:

If a conveyance be valid when" made, it can not be invalidated by subsequent acts of the grantor, nor by the creation of subsequent debts. Was the deed from Kendrick to Martha Dodge valid? They were contemplating marriage, and the conveyance is alleged in the answer — and there are no proofs in the case — to have been made in contemplation of marriage, and to secure her a homestead. Unless done for the purpose of defrauding creditors, Kendrick had a clear right to make this disposal of the land in question, or any other disposal which might be agreeable to him.

I do not see that any rights of creditors were affected by this conveyance. The bill does not aver this to have been all of Kendrick’s property, or any considerable portion of it; and he appears to have been indebted in but a small amount, and that amount Jie avers in the answer he was abundantly able to pay.

The subsequent occupation of the premises, and the fact that it was mortgaged by Kendrick and wife, that the deed was not recorded until after the commencement of the action by the complainants in which the judgment was rendered to aid in the collection of which this bill is filed, do not, under the circumstances of this case, prove or raise any presumption of fraud. The grantor and grantee intermarried; and the relation which existed between them was of that confidential nature which renders their subsequent acts entirely consistent with honesty of intention. Had they been strangers, and had Kendrick continued in possession of the property, and mortgaged it for his debts, and the deed remained unrecorded, a very strong presumption of fraud would arise, and perhaps, in connection with the small amount of indebtedness existing at the time of the conveyance, conclusive proof of it would be established.

We think the decree of the Court below should be reversed, and the bill dismissed.

Manning & Campbell JJ. concurred.

Chbistianct J. was absent when the case was decided.


author: Campbell J.: Manning J.:

text:
    Frederick Hall and others v. Martin A. Nash and others.
    Bill to foreclose a mortgage given to secure the payment by defendants of certain notes given by them, and which complainants had signed as sureties. Defense that complainants, under an instrument given them by defendants, empowering them to talco and sell certain personal property to satisfy the notes, had taken and sold sufficient for that purpose. Under this issue it is competent for complainants to show that claim was subsequently made against them by the sheriff for the value of the property so taken hy them, which he had attached on writs against the defendants, and that the sheriff had recovered the value in that suit. Such evidonco disproves the defense set up.
    An agreement given by principals to their sureties, by which, reciting that in order to save harmless their sureties, they agree to pay the demand secured within thirty days after it comes due, is not one of indemnity merely, and the sureties have'a light of action upon it on the failure of their principals to make the payment.
    In such action the sureties may recover the amount of the demand secured, whether they have paid it or not.
    "Whore such an agreement is secured'1 by mortgage, and suit is brought to foreclose the same before payment by the sureties, quere whether the Court will in any caso see to the application of the money by the sureties. There is no occasion to do so, where it appears in tho case that subsequent to the commencement of the suit tho complainants have paid the demand secured.

      Heard May 27th.

      Decided June 6th.

    Appeal in Chancery from Ionia Circuit.
    The bill was filed to foreclose a mortgage, which was given by Martin A. Nash and Hiram T. Barstow, as collateral to the following bond executed by them to complainants.
    “Know all men by these presents, that we, Martin A. Nash and Hiram T. Barstow, of Ionia county, Michigan, are held and firmly bound unto Frederick Hall and Stephen F. Page, of the same place, in the penal sum of ten thousand dollars, to which payment well and truly to be made we bind ourselves, our heirs, executors and administrators, firmly by these presents. Sealed with our seals, and dated this 4th day of February, A. D. 1854.

      Whereas, the above named Frederick Hall and Stephen F. Page have executed with us and delivered to Louis S. Lovell, administrator of the estate of John C. Ball, deceased, four promissory notes each of the sum of seventeen hundred and thirty-eight dollars and fourteen cents, with interest, and dated this day; one payable in four months from date, one payable in eight months from date, one payable in thirteen months from date, and one payable in eighteen months from date, all of which said notes were in fact made for the purchase of a stock of goods, by us of the said Louis S. Lovell, administrator, as aforesaid. Now the condition of this bond is such that if we pay the above described notes each within thirty days after they severally become due, with the interest thereon, then this bond is to bo void, otherwise to be in full force.”
    At the time of filing the bill, complainants had not paid the notes mentioned in the agreement, but it appeared from the papers submitted on the computation of the amount due, that they had made payment pending the suit.
    The defense made in the case, and the evidence, are sufficiently shown by the opinions.

      Bell <& Soule and G. I. Walker, for complainants,

      W. W Mitchell and M. Wisner, for defendants.
   Campbell J.:

This is a bill to foreclose a mortgage collateral to a bond conditioned to pay, within thirty days from maturity, certain notes signed by complainants jointly and severally with Martin A. Nash and Hiram T. Barstow, who were principal debtors — complainants being sureties. The bill shows a default in payment. The defense rests' upon two grounds — first, that complainants have received from other securities and property belonging to Nash & Barstow, the full amount; and second, that the bond is one of indemnity merely, and no damage is alleged.

The first defense is, in substance, that Nash & Bar-stow gave complainants an instrument whereby they were empowered to take possession of a stock of goods, and to raise the necessary amount by selling so many of them as were required. That while these goods remained the property of defendants, complainants took and sold enough to pay the debts. This defense is entirely disproved. It appears the instrument given was not a mortgage, but a mere naked authority. We had occasion to construe it in Holmes v. Hall, 8 Mich. 66. After Nash & Barstow had made an assignment, whereby they lost all ownership in the goods, the property was attached by their creditors. Complainants replevied it from the sheriff, but were compelled to respond to him for the value, because they had no interest which authorized them to take the goods from his possession. These facts negative the defense set up. They disprove it entirely, and are not merely in avoidance; and the objection made by the defendants that they are not pertinent to the issue is not well taken.

The bond is not a bond of indemnity, but is one conditioned to make payment of the notes within thirty days from their maturity. Such instruments have been so frequently construed and enforced that their effect is not art open question any where. They give an immediate right of action upon a breach, and the design seems to be to enable the surety to collect of the principal enough to pay the obligation. The latter can always avoid liability to the surety by paying the principal debt, and it would often be extremely unjust to leave a surety exposed to the change of circumstances of a principal for an indefinite period. The creditor can usually wait his own convenience, while the surety may be greatly embarassed by continued liabilities which he ought .to .be relieved from by the real debtor.

There is some force in the suggestion that the Court ought to see the money applied. But we find no authorities which establish such a rule. The debtor has distinctly agreed with his surety, and the latter can not, unless perhaps for special equitable reasons shown, be prevented from receiving the money. If the principal distrusts him, he can pay the debt himself, as he ought to do at any rate. Without deciding that there are not cases where the Court will attend to the proper application of the money, we are very well satisfied that nothing in this case requires it. No such point is raised upon any allegation in the pleadings, and on the other hand it appears distinctly that complainants have taken up the notes. As it was a material question whether they continued in force, this testimony was not irrelevant, and, being in the case for other purposes, might properly be regarded ujion any inquiry into the order to be made concerning the disjiosition of the fund, if such an inquiry is permissible upon proper averments. We are not called upon, therefore, to determine what control a court of equity may have over such matters, because no averment whatever could make its exercise proper in this case.

The decree must be affirmed, with costs.

Martin Cn. J. and Christiancv J. concurred.

Manning J.:

The bond is not one of indemnity merely. It is for the payment by Nash & Barstow of their own notes, on which Hall and Page were sureties, within thirty days after they should severally become due. The difference between such a bond and one of indemnity is, that the surety may pay the debt if it is not paid by his principal, and proceed to enforce the security to' reimburse himself, without waiting till he is forced to pay it by the creditor, which he would have to do if the bond was one of indemnity only. The failure of the principal to pay at the day is a broach of the bond; but what are the damages of the surety for such breach ? Are they, if he has not paid the debt, nominal merely? or are they the amount of the debt the principal is owing? It seems to me they are nominal and nothing more; as payment to the surety would not discharge the debt of the principal, who would still be liable to his creditor. There are cases where the debt is the measure of damages. As where the promise is to pay a debt the promissee is owing to a third person. In such cases payment to the promissee would discharge the liability of the promissor, who could not be compelled to pay a second time by the creditor of the promissee; and whether the debt is afterwards paid or not by the promissee, is no concern of his, as he is made to pay no more than he promised to pay. I doubt however the applicability of this rule of damages in cases like the one before us. Nor is it necessary to apply it in the present case, as the notes were paid by the sureties before the decree was entered. I liken the bill in this respect to one for the foreclosure of a mortgage payable in instalments, in which an instalment falling due after the bill is filed, and before decree, is included in the decree.

I concur with my brother Ckmpbelu on the other point made in the case, and I think the decree should be affirmed.


author: Martin 'Ch. J.: Campbell J.: The Cheep Justice:'

text:
    The People on relation of Joseph Kuhn v. The Board of Auditors of Wayne County.
    The Constitution having provided that the action of the Board of County Auditors in adjusting county demands should he subject to no appeal, the Supreme Court cannot revise their action by mandamus, and compel them to allow a demand which they have rejected on the ground that the services charged for were not £ performed.

      Heard and decided June 6th.

    Petition for a Mandamus. The petition showed that the relator was a justice of the peace of the city of Detroit; that he presented his bill for services as such Justice in criminal cases to the Board of Auditors of Wayne county, including therein certain charges for taking down testimony; Ms oath to the correctness of the whole being attached. These charges were largely reduced by the Auditors, on the ground of an overcharge in the amount of testimony taken down, and he now applies for a mandamus to compel them to allow the amount deducted.
    The petition having been read,

      D. E. Harbaugh, Prosecuting Attorney for Wayne county,
    showed cause, but was stopped byj;he Court.
    Martin Ch. J:: Has this Court any jurisdiction to revise the action of the Board of Auditors, in this manner, when the Constitution exjiressly provides that their action in adjusting demands against the county shall be subject to no appeal? — Const. Art. 10 § 10..

      G. E. Ectnd for the relator:
    The constitutional provision has no bearing upon this case. It is indispensible to justice that all inferior jurisdictions exercising judicial powers should be subject to the control of the Supreme Court, as otherwise the grossest injustice might be done without restraint.- The Constitution should be construed with this fact in view. Constitutional as well as statutory provisions should be- construed strictly when they infringe upon common right. — é Mich. 326.
    The word “appeal” as used in the Constitution has a special and limited meaning. Appeal is only one form of exercising supervision. Other modes of review, except this by appeal, strictly so designated, still remain to parties aggrieved. We must construe the word in the light of the former state of the law. An appeal to the Circuit Court then existed. This clause simply takes away that appeal.
    Art. 6 of the Constitution makes a distinction between the appellate jurisdiction of the Supreme Court, and the supervisory jurisdiction to be exercised through the writ of mandamus. The word “appellate,” as used in that article, has a technical meaning, and is not equivalent to the general jurisdiction of the Supreme Court. The foundation of the jurisdiction of this Court in many cases is the fact that there is no appeal.

    The word “ adjust ” contemplates open and unliquidated claims against the county, and not those which are fixed by the statute. In any event, therefore, this case does not come^within the constitutional provision. The fees are fixed by the statute, and there is nothing,to be adjusted, any more than there is in the case of interest on county bonds. In such a case the Court should compel them to perform their plain statutory duty. — 3 Mich. 480; 8 Mich. 372. Upon claims like this, the duties of the Auditors are those of taxing officers merely.
   Martin 'Ch. J.:

Our view of the question remains unchanged. It is_clearly a case where we have no jurisdiction.

Campbell J.:

This is a mere attempt .to induce us to review the action of the Auditors upon the facts. That could be nothing but an appeal. The case is very different from those in 3d and 8th Mich., where the amounts were liquidated. Here it was a question of fact whether the services were rendered or not. If the Auditors should wilfully or maliciously refuse to act upon the facts jiresented to them, there might be a remedy; but this is not that case.

Hand. But here the Auditors disregarded the evidence furnished.

The Cheep Justice:'

These papers present simply the question whether the decision of the Auditors was correct upon the facts.

Motion denied, with costs.