author: G-bier, J.

text:
    Willard vs. Forsythe et al.

    A licenso to keep and maintain a ferry, under cbaptct 25, of 'Compiled Zatos, is & personal trust, and is not assignable.
    To entitle the licensee to an injunction against one who fe naming trpim the route of sucTu licensee, he must have kept and operated a ferry in conformity with, tho requirement» of his licenser.
    The bond required by the licensee is a condition precedent to the enjoyment of any right under such license, and it seems that tbe giving and approval of eueft bond must be alleged Ira' the bill of complaint. *

      Bay Circuit,

      July, 1871.

      •Maxwell é Hyde, for 'Complainant.

      Luthier Beckwith, for Defendants.
    Motion for dissolution of injunction.
   By the Court,

G-bier, J.

It is alleged in the bill of complaint, that on the 27th day of January, 1866, the Board of Supervisor» of Bay County, under and by virtue of chapter 26, of Compiled Laws, granted to Christopher McDowell, since deceased, a license to run and maintain a ferry across the Saginaw River between Portsmouth and Salzburg. That thereupon said McDowell entered upon the use of the franchises and rights so granted to him, and built and maintained docks, boats, and other things necessary to such use.— That in the year 1869, said McDowell died, and his executors on the 12th day of May, 1870, sold an'd conveyed to the complainant said license and all the rights secured thereby, and that since then complainant has kept and maintained said ferry.

The bill further alleges'that on or about the 1st day of January, 1871, the Common Council of Bay City assumed to; itself authority over said ferry and granted to defendant Forsythe a license to run a ferry on the route of the complainant, and that said Forsythe is now running a ferry, and charging and receiving fare and tolls thereon to the great injury and damage of complainant. An injunction against the running and maintaining of the ferry of’ defendant Forsythe is prayed for. On an ex parte application a preliminary injunction was granted by the Circuit Judge.

The answer of defendant Forsythe admits the granting of a Ii’cense to McDowell, but denies that the executors had any power to convey the same to complainant. It denies that- a ferry has béeñ kept and maintained in compliance with the conditions of the license, and alleges and proves by the affidavits supporting the answer that complainant has violated said conditions by fsequently failing to run the .ferry for the accommodation of the public, and that thereby great inconvenience has been suffered. It is further alleged and proven that the Common Council under its amended charter of 1869, granted to defendant Forsythe a license to run a ferry on the ’ route of the ferry granted to McDowell, and that under his license said Forsythe has run a ferry for the accommodation of the public, and that in consequence of the neglect of complainant such ferry is necessary.

The defendant Forsythe now moves the Court for a dissolution of the injunction upon bill and answer.

Is the license to McDowell assignable ? If not, complainant acquired no rights by his purchase from the executors. To ascertain whether the license in question was the subject of sale, it will be necessary to examine the statute under which it was granted. Under that statute the Board of Supervisors may grant licenses for keeping ferries “ to as many suitable persons as they may think proper.” Such licenses shall continue in force for a time to be specified therein not exceeding ten years. No such license shall be granted to any person other than the owner of the land thnough which the highway adjoining the ferry shall run, unless such owners shall in writing consent thereto, or shall neglect to apply for such license after notice, as provided in the statute. The person applying must before any license can be granted to him, execute a bond to be approved by the Board, conditioned that he will faithfully heap and .attend such ferry with such and so many convenient boats, &c., as the' said Board shall direct. Every person who shall violate such bond shall be guilty of a misdemeanor and subject to a fine upon conviction thereof. It is further provided that if any person shall use any such ferry unless authorized- in the manner directed in that chapter, such person shall be deemed guilty of a misdemeanor.

It will thus be observed that before a license can be granted by the Boijrd they must pass judicially upon the- suitability of the' applicant. Although their action- upon the question is not subject to review by any other tribunal, yet the provision referred to is for that reason no less a prohibition against their granting a license to any person who does not possess the fitness required. But this prohibition is deprived of all significance, if the licensee upon being pronounced suitable may at his pleasure transfer his license to any person that he may choose without any exercise of the judgment of the Board upon the fitness of the transferee to execute the duties required. The judgment and discretion required to be exercised by the Board in examining and solemnly adjudicating upon the qualifications of the person to whom it is granted, would seem somewhat farcical if the license in legal effect runs to bearer, and is valid in favor of any holder thereof without any check upon its assignability.

Again, the right or franchise conferred by the license, like a railroad, is an additional servitude not contemplated by the proprietor of the laud when he dedicated the highway to the public, and cannot be granted to any person but such proprietor without his consent, or by such neglect to apply for a license as is deemed equivalent to consent. In this case the proprietors did consent that a license might be issued to McDowell, but they cannot be presumed to have thereby consented that it might be granted or conveyed to complainant. Knowing the qualifications of McDowell to exercise the trust, they were entirely satisfied with his selection, and consented thereto; but can that consent, by operation of law, broaden into an assent to the exercise of such important duties by the highest bidder at an executor’s salo ?

The very condition of the bond is in effect a covenant upon the part of the licensee that he will personally continue to keep and attend the ferry. His selection having been by law based upon his fitness, this condition of the bond was intended to secure to the public the services of the identical person selected. But if the license may be immediately assigned to any persou at the will of the licensee without the consent of the Board, or of the proprietor of the shores, it follows that the condition of the bond may in effect bé lawfully violated. By a transfer of the license it is put beyond the power of him to whom it was granted to any longer in any way control the ferry, and he thereby renders himself incapable to “ faithfully keep and attend such ferry.” If then the license may bo lawfully sold, the result is a solecism that can hardly be tolerated by any reasonable system of jurisprudence, i. e. one may lawfully do that, which is a violation of the conditions created by the same law which conferred the right.

The statute makes any violation of the bond a misdemeanor.— The person to whom the license is'assigned cannot violate the bond for he is not a party to it. The person to whom it was originally granted cannot be held to have been guilty of a misdemeanor for an act performed by the transferee, a person not at all under his control. It results then that for any misuse after the sale of the license there can be no prosecution under this provision, and the same is rendered entirely inoperative unless it is held that the sale is in itself a violation of the bond, in which ease it is a misdemeanor. It will hardly be contended that a misdemeanor may be lawfully committed.

Again, as has been shown, the use of any ierry is absolutely prohibited “ unless authorized in the manner directed in this chapter.’» A use under a right acquired by purchase is not directed in that chapter, and the right to such a use is in no way intimated. It follows that such a use comes within the prohibition.

The conclusion would seem to be inevitable that a license granted under this statute was intended to vest nothing more than a mere trust personal to the individual selected by the Board, and that such right cannot be assigned. This conclusion is deemed to be the only one consistent with the stringent restrictions of the statute

Another insurmountable objection exists against granting the relief prayed for. It clearly appears from the answer and affidavits that the conditions of the license have not been complied with by the complainant, and that his neglect to faithfully keep and attend the ferry, has made such a ferry as that maintained by defendant Forsythe a public necessity. While it is probable that such a misuser will not of itself, without some direct adjudication of forfeiture on a competent court enable the title of the licensee to be attacked collaterally, yet if he would invoke the aid of the Court by the extraordinary remedy of injunction, he must have kept and operated .a ferry that would at all times have accommodated the public. Ferrell vs. Woodward, 20 Wis., 458. This is but an application of the familiar rule, that he who seeks equity must do equity.

The statute makes the bond a condition precedent to the granting of the license. The jurisdiction to grant it depends as much upon the bond as upon the consent of the proprietor of the shores. This being the ease it would seem that the bill of complaint must allege the execution and proper approval of such a bond, which the bill in this case has failed to do.

The injunction is dissolved, with costs to defendant.


source: Caselaw Access Project

author: Brown, J.,

license: Public Domain

text:
    The People vs. Edward Jones.
    A person found drunk in tlio street is guilty of a misdemeanor under the statute Of 1871,‘and a constable may, without process, arrest such person and confine him in jail until he can be taken bofore a magistrate.
    A person who attempts to intimidate an officer by threats, and thereby to mducc[him to refrain from executing his official duty, is to be deemed guilty of opposing and resisting an officer, within the meaning of the statute.

      Allegan Circuit,
    August, 1871.
    The respondent in this case was charged with having resisted one Byron, a constable, while he was engaged in an effort to keep the peace in attempting to arrest and convey to jail one Brewster, for an alleged breach of the peace committed in the presence of the officer.
    The evidence showed that Byron was an acting constable, and-tended to show that Brewster was intoxicated in a public street in Allegan ; that without any process Byron arrested him, and that while conveying him to jail he made an assault upon one Preston ; that when the officer was near the jail with his prisoner, the respondent drew a revolver from his pocket and threatened to shoot the officer if he should imprison Brewster. Byron however lodged his prisoner in the jail and the revolver was not fired.

      A. H. Farm, Prosecuting Attorney, for the People.

      J. IJ. Stone and J. F. Alley, for the Respondent
   Brown, J.,

instructed the jury that to warrant a conviction they must find

1. That Byron was, at the time of the alleged offence, a constable of Allegan tofrnship.

2. That Byron was then engaged in an effort to maintain, preserve and keep the peace.

3. That while so engaged, the respondent either obstructed, resisted, opposed, assaulted, or beat or wounded him, Byron.

First then, have the People shown that Byron was a constable ? This may be proved by evidence that he acted in that capacity. It is not necessary to show that he was actually elected,

2. Was Byron, engaged in an effort to maintain, preserve and keep the peace? In determining this question it is important to determine whether there was any breach of the peace or effort to commit such breach. A breach of the peace is a violation of public order, the offence of disturbing the .publicpeace. An act of public in-decorum is also a breach of the peace. By an act of the Legislature of 1871, it is provided thati: Any person who shall be drunk or intoxicated in any hotel, tavern, inn, saloon or place of public business,' or in any assemblage of people collected together in any place for any purpose, or in any street, lane, alley, highway or railway car, by drinking intoxicating liquors, shall, on conviction thereof, be punished by a fine of five dollars and costs of prosecution, or be punished by imprisonment in the common jail of the county, not exceeding twenty days, or by both such fine and imprisonment in the discretion of the Court.”

From this -you will perceive that the being drunk or intoxicated, as set forth in the paragraph I have just quoted, is a misdemeanor. If then, you find from the evidence that Brewster was thus drunk or intoxicated in the public streets of this village, I charge you as a matter of law that he was guilty of a misdemeanor — of an act of public indecorum, and if he was so drunk and intoxicated in the presence of the officer, the officer had a right and it was his duty to arrest him, and to keep him so that he might have his body before a magistrate to answer for his offence. It is claimed by counsel for respondent that an officer who arrests a person guilty of a misdemeanor has no right to imprison the offender, but that he must forthwith take him before a magistrate. It is the duty of the officer making the arrest, to take the accused, in such case, before the magistrate without any unnecessary delay. But he may confine him in sc prison for a short time if the circumstances of the case require it. The very aet of making an asrestr is, in contemplation of law an act of imprisonment, and so long as one person is forcibly under restraint by another be is in lawr imprisoned. In short, imprisonment is the restraint of a person against his will. The law requires an officer to keep an offender until he can be examined, and I eharge you that if a party is found violating the law in the night time after the usual hour for transacting business or of holdingeourt, it is the duty of the arresting officer to lock up his prisoner until the next day. There is no law requiring him to sit up and watch the offender if he can secure him by bars and bolts. And I eharge yon that if you find that Brewster was guilty as claimed, at between ten and twelve o'clock at night, it was the duty of the' efficer to keep him until the next morning, and that he had a right to keep him in the jail of the county, and that no man had a right to oppose him in the discharge of his duty.

I question very much whether even in the day-time it is the duty of au officer to take a drunken man immediately before a magistrate. To try a man for a misdemeanor or breach of the peace while he is intoxicated, would be a mockery of justice — would be taking undue-advantage of a man who has deprived himself, temporarily, of the power of exercising reason. It would appear more sensible that the officer detain him until he becomes sober, so that he may answer like a man possessed of intellect, rather than like a fool.

It is claimed, on the part of the prosecution, that- Brewster while in the custody of the officer, assaulted and beat oné Preston. If you believe this testimony, then clearly he, Brewster, was guilty of a misdemeanor — was clearly guilty of a breach of the peace, and even though the original arrest had been unwarranted it furnished no justification for an assault1' upon Preston; henee, the continued custody of Brewster by the officer would, in law, be justified, and not only justified but demanded by the law.

5, Did the respondent obstruct, resist, oppose, or assault, or boat or wound Byron while in the. discharge of his official duty ?— If he did all or either of these he is guilty. I do not think a threat to an officer unless it has the effect to hinder, impede or embarass the officer in some way, can be said to amount to an obstruction. But I have no doubt but that the drawing of a revolver upon ¡¡in officer while attempting to execute his duty in preserving the peace, accompanying the act with the threat that the person drawing the weapon will shoot the officer if he proceeds further, amounts to resistance and opposition in contemplation of law. If therefore you find from the evidence that Byron was endeavoring to keep the peace by resort to such measures as the Court has advised you he had a right to, and if you find that the respondent there threatened him with bodily harm; if he strove against the officer; if he endeavored by intimidation to induce the officer to abandon’his purpose to keep the peace, and to refrain from his efforts to execute and discharge his official duty,*he would be guilty, and this, even though he had no intention to shoot the officer or to do him other bodily harm. The crime consists in thwarting or in efforts to thwart, contravene or defeat the execution of the law against offenders.


author: Mitchell, J.

text:
    The People, for the Use of Frank Whipple vs. William H. Dumpley, Late Sheriff, and Daniel H. Cole, Andrew S Welch and Albert Staley, his Sureties.
    A Sheriff and his sureties in a suit upon his official bond, cannot object to any irregularity short of a jurisdictional defect in the judgment upon which the execution was issued, for the non-return of which a breach in the bond is assigned.
    The failure of the Sheriff to give a new annual bond, as required by the statute, will not release his sureties from liability on account of process placed in his hands for execution before such renewal is required.
    Some proceeding is necessary to declare his office vacant in case he fails to give such new bond, and he and Ids sureties cannot avail themselves -of the supposed vacancy as a defence to the action on the bond, without special plea, or special notice of the neglect as a defence

      St. Clair Circuity

      August, 1871.
    This suit was commenced by declaration on a Sheriff’s bond, under the statute, stating the giving of the' bond, December 24th, 18t6, in pursuance of the statute for Sheriff’s bonds.— That Dumpley entered upon the duties of the office of Sheriff, having given, and filed this, his official bond. That at the November term, 1867, of the St. Clair Circuit Court, Frank Whip-pie, by due course of law, obtained judgment against one Joe'J B. Wharton, for $436 46, damages and costs.
    That an execution upon the judgment was sued out and placed in the bands of the Sheriff, November 30th, 1867, returnable on the first Tuesday of February, 1868. That she same was properly endorsed, «fee. That the Sheriff on the same day November 30th, 1867, seized and took into his possession under7 said execution certain lands described therein, of more value than the amount of judgment, and endorsed the levy upon the execution. Yet said Sheriff did not return the snonejs as commanded in said writ, and has not at any time returned the writ nor paid over the moneys, .&e., by reason whereof, &c.
    The defendant plead the general issue, and gave notice that if the writ was received at all by Dumpley, it was legally and properly executed, the lands sold and certificate of sale given' and properly executed and filed, and the writ duly returned.
    The attorney appears for all the defendants.
    Facts Foumi.
    'The defendant, Dumpley, was, at the election in 1866, elected Sheriff of St. Clair County. On the 24 th of December,
    1866, be, as principal, and the other defendants as sureties, made and executed the bond declared upon, and filed the same after due approval, in the County Treasurer’s office of St. Clair Co., a copy whereof hereto attached is made part and parcel of this finding of facts.
    On the 1st day of January, 1867, Dumpley entered into, and commenced the duties of the office of Sheriff, filing no other lx>nd than the one declared on.
    July 31st, 1867, Frank Whipple commenced a suit by attachment, returnable the first Tuesday of September, 1867, against Joel B. Wheaton, in the Circuit Court lor the county of St. Clair, under which the lands mentioned in the declaration were attached. The return shows the attachment of the lands and that the defendant was not personally served. November 1st, 1867, affidavit of publication of notice with the notice filed.— Declaration filed the same day, and appearance and default of defendant entered November 2olh. After four days in term the default was made absolute, and judgment was rendered in

      that suit November 26th, 1867, ior $409 31, damages, and $27 15, costs of suit, amounting in all to $436 46.
    The affidavit, writ, notice and proof of publication, entry of default, and other proceedings in said cause, on file and of record, are made part of this, my finding.
    On the 30th of November, 1867, the Clerk, at the request of the attorney for the plaintiff in that suit, issued an execution upon said judgment, directed to the Sheriff of St. Clair County, and the same was that day delivered to the defendant, Dumpley, he then being such ¡Sheriff, with directions endorsed thereon to levy upon the land described in the, attachment, ind other usual endorsements. The Sheriff did not return the execution, and on the 12th day of March, 1869, over a year after the return day of the execution, the plaintiff’s attorney entered a rule in the common rule book, requiring the Sheriff to return the execution, and served a copy with a notice of its entry upon said Sheriff.
    The execution has never been returned nor accounted for, though the Sheriff was repeatedly requested to return it.
    The Sheriff, Dnmpley, levied the execution upon the lands described and attached.
    After making the levy, the Sheriff' during the life of the execution, advertised the lands for sale, and on the day mentioned in the notice, February 1st, 1868, they were bid off by, and struck off to the plaintiff, Frank Whipple, for the amount then due on the execution, with costs of sale, &c. The Sheriff gave Whipple no certificate of the sale or purchase, and though often requested, never has given him such certificate, and never filed any certificate of such sale with or in the office of the Reg' ister of Deeds of St. Clair County, nor returned said execution.
    June 5th, 1866, and prior to the issuing of the attachment, Wheaton, the defendant in the attachment suit, made a general assignment of his property to Hiram M. Derpre, this land being included in the schedule for the benefit of certain preferred creditors, he having on the 4th of, June, 1866, given a quitclaim deed of the land to Derpre, to be held in trust to pay certain debts. Whipple is not named in the assignment, schedule or deed, as one of the creditors. The assignment and deed after naming preferred creditors, directs balance, if any, to others not named. But the assignment after mentioning certain preferred creditors, provides for the payment of all other debts.
    Whipple at the time held Wheaton’s note for $500, on which $100 had been paid, and the balance witli interest was then actually due and owing to him from Wheaton. Wheaton vith the exception of the assigned property was worthless and bankrupt.
    The Sheriff did not renew his bond within twenty days from the first Monday of January, 1868, nor at any other time.
   By tJu Court,

Mitchell, J.

The first material question raised is whether Dumpley ceased to be Sheriff after the 20th of Jan" uary, by his having failed to renew his bond required by law.

Section 5, of Article 10, of the Constitution, provides that the Sheriff “May he required by law to renew his security from time to time, and, in default of giving such security, his - office shall be deemed vacant.”

Section 415, p. 207 of Compiled Lates, requires the Sheriff within twenty days after the first Monday in January, in each year subsequent to each election, to renew the security required to be given before entering on the duties of' his office, which shall be for the same amount, approved, &c., as in the first instance.

It is claimed by the defence that if his office, after the expi. ration of the prescribed time, without renewing his security, as required by law, is by the Constitution deemed vacant, then his sureties cannot be held under his first bond liable for any act or omission after that time, and that the omission to give a new bond is not assigned as a breach.

“ Where a Sheriff’s bond is an annual one the sureties therein are liable for his defaults only during the time between the execution of the bond by them and the execution of the next year’s bond.” Hewitt vs. State, 6 Har. & J. 95.

But here no new bond was given. He continued to act and to execute process already in his hands, though his office might have been deemed vacant by the strict letter of the law. Was he not authorised and required to carry out the execution of process already in his hands, the execution of which had been already commenced, and would not his sureties be liable for any default or neglect in its execution until a new bond ? That is, does not the bond extend to all acts commenced while that bond is strictly in force, though the particular omission complained of occur afterwards, unless a new bond has been given in the meantime ? It occurs to me that the bond extended to all acts and omissions while he assumed to act as Sheriff, without renewing his bond or surety, and I so hold the law to be, and that his office was not necessarily vacant unless some steps were taken to declare it vacant.

The main condition of the bond is, that be shall well and faithfully in all things perform and execute the office of Sheriff during his continuance in office by virtue of said election. He Was elected for the term of two years. Some proceedings would be necessary to declare his office vacant so as to release his sureties. But even if the office did become vacant, can the defendants avail themselves of the fact except by special-notice equivalent to a plea setting up the fact in avoidance of liability ? “ In an action against a Sheriff and his sureties, on his oond, tl e surety cannot object except by plea that the bond declared upon has been suspended by a subsequent one.” Hill vs. Fitzpatrick, 6 Alabama, 314. Such a plea or notice would be as essential in a case where a party seeks to be released because no new bond has been given. It is clearly special matter of defence if it is any defence.

The next proposition is, can the Sheriff or his surety avail themselves of any irregularity in the judgment not amounting to a jurisdictional defect ? I find as matter of law that they cannot.

“ A Sheriff against whom a recovery is sought for the failure to return an execution, cannot be allowed to object that the execution is irregular.” McKan vs. Colclough, 2 Ala., 74; Bondwrant vs. Woods, 1 Id, 543.

“ In a suit against a Sheriff and his surety for neglect to pay over the proceeds of sale of land for taxes, they cannot object to the sufficiency of the judgment or execution under which he made the sale and received the proceeds,” &c. People vs. McHatton, 2 Gillman, 731.

“ A Sheriff cannot question the regularity of an execution, and he is not liable for enforcing an irregular execution.” Ford vs. Treamen, 1 N. & M., 234.

“ In an action against the Sheriff for neglect or misconduct in^the service of an execution he is not permitted to impeach the creditor’s judgment except on the groundthat it was obtained by fraud.” Adams vs. Balch, 5 Greenleaf, 1885; “and even if he can for fraud he should show that he represents a creditor of the judgment debtor.” Clark vs. Foxcraft, 6 Greenleaf, 2961.

It is claimed that the property sold was not the property of the defendant, and therefore the plaintiff has lost nothing.

This is hardly a proper case in which to try the title to that property. Questions of fraud and other questions affecting.the legality of the transfer might arise, while the real parties in interest would not be .before the Court. .The plaintiff had a right to buy whatever title the judgment debtor had, and whether it should turn out good or bad was of no importance to the Sheriff. The plaintiff was entitled to the full execution and return of the process to enable him to take whatever steps might have been necessary to perfect his title. Without the return of the execution and certificate of sale he is deprived of this right, and the Sheriff and his sureties are bound- to make the plaintiff whole for all the loss he may have sustained. I think the true measure of damage would be within the full value of the land, or the amount ol the judgment, if the land was sold for that amount. I find it to have been sold for that amount.

I therefore find that the said William H. Dumpley, Sheriff, &c., did committ the breach of the bond assigned, and did not make return of the execution, &c. I assess the plaintiff’s damages by reason thereof, at the sum of $439 46, with interest for three years and ten months, $116 54; total damages, $553 00_

Let judgment be entered accordingly.


author: Grier, J.

text:
    John Kilduff vs. John F. Willey.
    K purchased before their maturity two notes executed by defendant. In an action brought by K, on the notes, and after verdict and an order of Court for a new trial, defendant for the purpose of denying the execution of the notes, asked leave to file an affidavit setting forth that the words, “ at ten per cent, interest,” in each of tho notes were forged. Held, tlmt the application would bo granted only upon condition that the defendant should stipulate that the defence so sot up should go no farther than to defeat the claim for interest occurring between the date and maturity of the notes, unless it should be found that K when he purchased, had notice of the alleged forgeries.

      Bay Circuit,

      July, 1871.

      John MeXamara; Plaintiff’s Attorney,

      Maxwell & Hyde, Defendant’s Attorneys.
    Motion for leave to file an affidavit denying execution of promissory notes.
   By the Court,

Grier, J.

This action was brought by declaration upon two notes executed by the defendant to McKinney & Co., and endorsed by them before maturity to plaintiff. Defendant did not plead in time, and on September 24, 1870,judg-ment by default for the amount of the notes passed against him. Upon a showing that the default was inadvertently suffered the same was set aside on the 15th of Decejnber, 1870. Thereupon the defendant without filing any affidavit deuying the execution of the notes, pleaded the general issue, and upon a defence not involving the execution of the notes, a verdict was found for defendant. This verdict was afterwards vacated and a new trial ordered. The defendant now files an affidavit al. leging that the words, “ at ten per cent, interest,” were not in the notes at the time he executed them, and that those words have been forged, and that he first discovered the fact on the trial of the cause, but alleges no excuse for not making this motion upon the trial. Upon this affidavit an application is made for an order allowing defendant to file an affidavit under rule 79, denying the execution of the notes.

The plaintiff claims to have been a bona fide purchaser of the notes before maturity. If the defence now sought should prevail it would bar a recovery of both principal and interest, even should it be shown that plaintiff*was a bona fide holder before maturity of the notes. The defendant by his own showing intended to execute his notes ¿for the principal. The only wrong that the added words could do him. would be to compel him to pay interest, although its effect in law would be to entirely invalidate the notes themselves. Such an effect would be just as against the guilty party who committed the forgeries, especially as he might still recover in another action theconsideration for which the notes were given. But the purchase of the notes hy plaintiff did not transfer to him this right. That remains in McKinney & Co- True, if defeated in this action upon the defence contemplated, the plaintiff may have an action over against McKinney & Co. But it was proven on the trial that McKinney & Co have taken the benefit of the bankrupt act, and are insolvent. Such a remedy in favor of plaintiff would therefore be purely nominal.

Had this defence been interposed in time it would not have been within the power of the Court to have regulated its effect so as to have, prevented the injustice named. But this application is now addressed to the discretion of the Court, which should never be exercised so as to work injustice The order should be guarded so as to protect the defendant against any injury that the alleged forgeries could do him, and at the same time do no wrong to the plaintiff. Let therefore an order be entered that the defendant have leave to file his affidavit denying the execution of the notes, upon condition that defendant at the same time shall file with the Clerk a stipulation that the defence growing out of the alleged forgeries shall have no other or greater effect than to defeat the plaintiff in' any claim for interest accruing between the dates and maturity of said notes respectively, unless it shall also be found by the jury that the plaintiff at the time the notes werenegotiated to him had notice of said forgeries.


author: Brown, J.

text:
    David F. Lane vs. Solomon Shellman.
    To entitlea party to a warrant, in actions upon contract, on the ground of fraud, under the third subdivision of£ 3671, C.£.,he must show that the representations of the defendant upon which he claims to rely; that relying upon che truth of such representations he was induced to part with his property; that such representations were false, and that the defendant knew thorn to be false, and that he has suffered damage by reason of the premises. And the facts and circumstances tending to show the fraud must be set forth.

      Kalamazoo Circuit,
    May, 1871.
    This case comes into this Court on an appeal from the judgment of a Justice of the Peace. In the affidavit for the appeal special matters are set forth which aré alleged as error. These special matters involve the question of the sufficiency of the affidavit on which proceedings were predicated in the Justice’s Court.
    The defendant was brought into the Court below upon a warrant issued upon an affidavit, of which the following is a copy:
    “ STATE OF MICHIGAN, Kalamazoo County, }
    David F. Lane, of Portage, in said county, being duly sworn, deposes and says, that he has, as he has good reason to believe and does believe, a demand not exceeding one hundred dollars, arising out of a contract against Solomon Shellman against whom he applies for process, by warrant, for the value of one cow, obtained by the said Solomon Shellman of deponent, by fraud.
    And deponent further states that the following are the facts and circumstances which constitute his said claim and the fraud of said Solomon Shellman complained of, to wit: On the 26th day of October, A. D. 1870, said Shellman, in said town of Portage, came to deponent and offered to sell to deponent a house — that said house then stood on the premises of one A-Dustin, in said township, being the same house recently standing on the premises of Julia Sherwood, in said township.— That said Shellman said to deponent that he was the owner of of said house — that no incumbrance of any kind was on it, and that no person other than himself had any claim npon it or any right or title to it.
    And deponent further says,that he placed full reliance on the said statements of said Shellman, and believed them to be true, and was thereby solely indueed by such false representations to purchase said house of the said Solomon Shellmanj and did so purchase the. said house, and thereby said Solomon Shell-man did fraudulently and designedly obtain from deponent the said cow in part payment of said house, which cow waR of the value of sixty dollars.
    And deponent says that said house was not as' represented by said Shellman, his property, nor had he any right, title or in, terest in said house, and no right or authority to sell the same as deponent has, since the said cow was delivered to him ascertained. And deponent says that he has been defrauded by said Solomon Shellman, and thereby he has a just claim against said Shellman to the amount of sixty dollars, as the damages which he has sustained by said fraud.
    D. F. LANE.
    Subscribed and sworn to before me, this 27th day of October, A. D. 1870.
    Amos D. Allen,
    Justice of the Peace.”

      Edwards & Sherwood, for the Plaintiff.

      Hawes &¡ Edson, for the Defendant.
   By the Court,

Brown, J.

The statute, ((7. L., § 3671,) provides that “ The plaintiff in actions arising out of or founded upon a contract shall be entitled to a warrant upon filing with the Justice an affidavit made by the plaintiff, or some one in his behalf, that the plaintiff has good reason to believe,”

“ Third. — That there was fraud or breach of trust.”

Paragraph 3873, provides that, “ In all cases on application for a warrant under the third subdivision of section 19, the person applying therefor shall by affidavit show the facts and circumstances within the knowledge of the person making such affidavit, constituting the grounds of the application where! the Justice may the better judge of the necessity and propriety of Issuing such warrant.” The affidavit in question is framed with a view to the arrest of the defendant on the ground of fraud in procuring from the plaintiff his property. Does the affidavit show affirmatively such facts and circumstances as tend to show that the defendant employed any trick or artifice by which the plaintiff was induced to part with his property',?

The characteristic of fraud is the intention to deceive. It is true that equity sometimes recognizes constructive fraud, as where one’s acts though not originating in any evil design, tend to deceive and operate substantially as a fraud upon private rights or interests. But to entitle a person to a warrant under the statute above quoted, the fraud must be actual or positive, and by this is meant the intentional and successful employment of some cunning, deception or artifice used to circumvent, cheat or deceive another.

The action in this case arises out of an alleged contract into which the plaintiff .alleges he was induced to enter on account and by reason of certain misrepresentations of the defendant.— It was incumbent upon him then t-o show in his affidavit the terms of the contract; the representations of the defendant upon which he claims to rely; that relying upon the truth of such representations he was induced to part with his property ; that such representations were false and that the defendant knew them to he false, and that he has suffered damage by reason of the premises.

These requisites constitute the ground of application for the warrant, and the statute already quoted requires the person applying for such warrant to show by his affidavit the facts and circumstances within his knowledge constituting the grounds of his application, that the Justice may the better judge of the necessity and propriety of issuing such warrant. Indeed, the Jus. tice cannot legally judge of the necessity and propriety of issuing such warrant without the presentation of the facts and circumstances referred to. He has no right to infer fraud unless there is some legal evidence tending to establish it. The affidavit under consideration sets forth the contract and the alleged statements and representations of the defendant, and states with sufficient certainty that the plaintiff believed and relied upon them, and that he was thereby induced to exchange his property for the house which the defendant claimed was his.— Following this averment the affiant uses .this language: “ And thereby said Solomon Shellman did fraudulently and designedly obtain from deponent the said cow in part payment of said house, which cow was of the value of sixty dollars.” The word “thereby,” must I think, relate to the representations referred to, so that the affidavit declares substantially that by these representations the defendant did fraudulently and designedly obtain from the plaintiff his cow in part payment for the house.— Thus far there is no direct allegation that the statements were false, and no court would be warranted in inferring from the 1 an guage used that the defendant knew that fact. In the concluding paragraph of the affidavit the plaintiff avers that the “ house was not as represented by Shellman, his property, nor had he any right, title or interest in said house, and no right or authority to sell the same, as he, deponent, has since the said cow was delivered to him, ascertained.” In this paragraph no reference is made, to the scienter. While the Court will not weigh the testimony produced before the magistrate in the affidavit upon a given point, yet where evidence tending to show certain facts is necessary to confer jurisdiction, and where it appears that no such evidence has been produced, the Court is bound to hold that subsequent proceedings before such magistrate were unauthorized. The mere fact that a statement is declared to be false, is not to be taken as prima facie evidence that the person making such statement knew it to he false, nor is an allegation in the affidavit that the party made certain statements and that he thereby fraudulently and designedly obtained deponent’s property, to be taken as evidence of scienter. Such an allegation is merely a conclusion and not the statement of facts and circumstances from which the magistrate can legally draw a conclusion. This view of the case renders it unnecessary to consider the other points raised.

The judgment of the Justice must be reversed, annulled and hold for naught.


author: Ramsdell, J.

text:
    Margaret C. Thorp vs. Wm. T. Thorp.
    A Circuit Court Commissioner has no authority to make an order allowing alimony.

      Manistee Circuit,

    1871.

      S. TF Fowler, for Complainant.

      Benedict it Ramsdell, Contra.

   Jiy the Court,

Ramsdell, J.

Under our statutes a Circuit Court Commissioner has no jurisdiction to hear an application and make an order for alimony, and the order heretofore made by D. W. Dunneti, Circuit Court Commissioner for this county, for that purpose, in this case is therefore void.


text:
    The People vs. German Rouse.
    A person guilty of adultery may he convicted of fornication, where the information is for fornication, as adultery embraces fornication. And where a person is charged with adultery he may bo convicted of fornication.
    Upon a trial on an information for incest, where the proof tended to show that the intercourse was forcible and against the will of the complaining witness with whom the intercourse was had, Held, that the accused might be convicted of incest, even if the jury should find that the force used was such as under the circumstances, to amount to rape.

      Allegan Circuit,

      August, 1871.
    The facts in this case sufficiently appear in the charge of the Court.

      A. H. Fenn, fo.r The People; M. D. Wilbur, of counsel.

      John W. Stone and Silas Stafford, for Respondent.
   Charge of the Court,

Brown, J.

Gentlemen of the Jury:

The information filed in this case alleges that “ German Rouse, late of the township of Leighton, in the. county of Allegan, on the nrst day of May, A. D. 3870, at the township of Leighton, in .said! county of Allegan,, did commit- fornication with one Ida Rouse, by having carnal knowledge of the body of her, the said Ida Rouse, she, the said Ida Rouse, being then and there the daughter of Elliot Rouse, the brother of the said German Rouse, and the niece of the; said German Rouse,”

The statute under which this information is filed, § 587©, O. L., is as follows:

“ All persons being within the degree of consanguinity within which marriages are -prohibited, or declared by law to be incestuous and void, who shall intermarry with each other, or who shall commit adultery or fornication with each other, shall be punished by imprisonment in the State Prison not more than fifteen years,- or in the county jail not more than one year.” This statute includes those eases where the parties sustain the rélation of uncle and niece; where the intercourse is between a man and bis brother’s daughter.

In order to warrant a conviction of the respondent, it is incumbent on the people to prove, beyond a reasonable doubt — to prove to your entire satisfaction (you giving the respondent the benefit of any an.d all reasoaable doubts :)

1. That the respondent did commit fornication with Ida Rouse.

2. That Ida Rouse is, as claimed by the prosecution, the daughter of respondent’s brother.

By fornication, is meant illicit carnal connection; unlawful sexual intercourse. This unlawful intercourse, unaccompanied by any circumstances which tend to aggravate it, is simple fornication ; and when as the result of such fornication a child is horn, it is called bastardy. If a man who is married is guilty of unlawful sexual intercourse, we call it adultery in him. When the act is between parties sustaining relations to each other within certain de_ greea of consanguinity or affiinity, we call it incest. Where the fe. male consents to unlawful intercourse through fraudulent acts, including a promise of marriage, we call it seduction. In’each case the essential fact which constitutes the crime is fornication. Wharton’s Cr. L., p. 975, § 2669, note d. So that to warrant a conviction for adultery, fornication must be proved. If in a prosecution for adultery the prosecutor fails to show the marriage, hut shows the fornication,the^aceused may be convicted of fornication. In short, every ádultery embraces fornication, and is only called by a different name to indicate that not only tbe offence of unlawful carnal intercourse was committed, bat that the saered obligation of the marital relation has been violated.

I thérefore advise you that the fact that the respondent is shown to have been a married man at the time of the alleged offence, is no bar to a conviction for fornication; and if guilty of fornication with his niece he is guilty of incest.

Counsel for the respondent contend that if the evidence in this case satisfies you that the alleged intercourse between the respondent and the eomplainiug witness was forcible and against the will of the complaining witness, the crime of the respondent would be rape and not fornication. This .question is not, perhaps, entirely free from, doubt; and I approach the consideration of the question thus presented with some misgivings. It hás been held in an indictment for fornication and bastardy that the testimony of the prosecuting witness that the accused forced her, worked himself under her and in that way foreed her, and that she did not give her consent, was not such as to merge the offence charged in the crime of rape, but that the defendant might be legally convicted of fornication. Com. vs. Parr, 5 Watts & Serg., 345. In New York, it has been held that’eon-sent is essential to the crime, and that if the connection is accomplished by force, the crime is rape and not incest. People vs. Harriden, 1 Park., 344. But there can be no such thing as rape without carnal knowledge — without a penetration of the female. It is true that the essence of the crime is not the fact of intercourse but the injury and outrage to the modesty and feelings of the woman, by means of the carnal knowledge effected by force. And still, as the carnal knowledge in such case is voluntary and unlawful on the part of the man, it would seem to come within the definition of fornication ; and it seems to me that rape is but fornication aggravated by the force employed in accomplishing the act, against the will of the person upon whom the offence is committed.


text:
    Samuel Evans, Plaintiff in Error, vs. George L. Reed and James F. Weaver, Defendants in Error.

    A mere transcript of the minute» of proceedings in a caso in Pennsylvania, without giving tho-record of pleadings, proceedings and journal entries, does not ronstitate a moni of judicial proceedings under tho Aet of Congress of May 2&, 1700.
    Tho renewal of a judgment in Pennsylvania by scire facias without service, only Jce»ps ir» force the local lion, and dbes not constitute a ne^v judgment against the person so os to provent the operation of the statute of limitations.
    Such now or revised judgment does not constitute an original judgment upon which a party may be sued in this State. It is based upon and cantrolIetTby the original judgment and subject to all its limitations except tho local lien given by the statute of tho Stato wlienr rendered,

      Macomb Circuit,

      January, 1871.

      Certiorari Jmm Justice’s judgment.
    Defendants in error were plaintiffs in the Court below.
    Thedeclarationwasverbalinassumps.it upon a judgment rendered in the Court of Common Pleas, in Clearfield County, in the Stato of Pennsylvania, at the March term thereof, in the year one thousand eight hundred.and sixty-seven, on the 20th day .of March, for one hundred and ninety-two dollars and thirty cents, damage» and costs of suit, in favor of said plaintiffs and against said defendant, and claim's three hundred dollars damages.
    Plea, general issue, and notice of the statute of limitations.— That there was no record of the judgment, and that there was no set-vice of process to warrant the judgment declared upon, and defendant had no notice of any of the proceedings.
    On the trial the plaintiff introduced, under due certificates, an exemplified copy of the judgment and proceedings, as follows :

      “ Amongst the records of the Court of Common Pleas of Clear-field County, Pennsylvania, to No. 165, January term A. D. 1857, is contained as follows, to wit:
    Appearance Docket Entry.

      W.B.& F. Reed & Weaver. 14 Eeb’y. vs. 165. Samuel Evans. Pnolb’y W. R’ff, $1 12£. £ci. fa. to 433, Sept. 1. 1863. Al. sci. fa. to 102, March T., 1867,'

      D. S. B. on single bill, dated 14th February, A. D. 1857, with warrant Prothonotary to confess judgment, and conditioned to pay plaintiff the sum of one hundred and nineteen dollars and thirteen cents, one day after date, with interest - from. date, with costs of suit, release of errors, &c.
    Read, Debt, $119 73.
    Int. from 14th Feb’y, 1857.
    Entered and filed, 14 Feh’y, 1857.
    Judgment.
    GEORGE WALTERS, Proth’y»
    Lien Docket Entry.
    Revived — Evans, Samuel.
    Reed ■&, WeaveT.
    No. 165,4lan’y T., $857.
    Entered 14 Feh’y, 1857.
    Debt, 8119 13,
    “ Copy op Praecipe.
    In the Court off Common Pleas of Clearfield Co., Pa,

    WALLACE, BIGLER & FIELDING,
    Att’ys for PPffs.
    22 June, 1866.»
    “ To Proth’y of the Com. Pleas,
    * September Term, 1863.’

      * Appearance Docket Entry’ of Scire Facias.

      Sciic Facias to revive Judgment.

    So ans. Sli’ff Faust,
    Pro. E. Carried forward. 125.
    Sh’ff Faust. 50.

      Al. Scire Facias to No. 102, March, 1867.”
    “ Clearfield County, ss.
    The Commonwealth of Pennsylvania.
    To the Sheriff of Clearfield County, Greeting:

      Whereas Reed & Weaver, on the 14th day of February, in the year of our Lord one thousand eight hundred and fifty-seven, obtained judgment in our County Court of Common Pleas.of Clear-field County, before our Judges at Clearfield, against Samuel Evans, late of your county, yeoman, as well a certain debt of $119 13, lawful money of the United States, with interest from 14th February, 1857, as also $1 12a- like money, which to the said plaintiff in our said Court we awarded and adjudged for their damages which they sustained by occasion of the detention of that debt, whereof the said defendant was convict, as appears to us of record, &c.; yet execution of said judgment still remains to be made, as we have been given to understand by the said Reed & Weaver, who hath besought us'to provide for them a proper remedy in that behalf ; and we being’willing that what is right in that behalf should be done, Therefore :'— We command you that by honest and lawful men of your bailiwick, you make known unto the said Samuel Evans that he be and appear before our Judges at Clearfield, at. our County Court of -Common Pleas, there to be held for Clearfield County, on the second Monday of September next, to show if any thing for him he has, or knows to say why the said plaintiff should not have the above judgment revived to continue the lien ■, and also why the said plaintiff should not have execution against him for the said debt and damages, according to the form, force and effect of the recovery and judgment aforesaid, if to them shall seem expedient.
    And further to do and receive what our said Court shall in that behalf consider and direct. And have you then and there the names of those by whom you shall make it known unto him, and this writ.
    Witness the Hon. Samuel Linn, President of our said Court, at Clearfield, the 29th day of June, Anno Domini, one thousand eight hundred and sixty-seven. D. F. ETZWEILER,

    Prothonotary.”
    (Returned on back.)
    To the Honorable Judges, &c.
    N. E. I.
    So ans. Sh’ff Faust.

      “ Copy op Praecipe.
    In the Common Pleas of Clearfield County, Penn.

    judgment — Returnable 21 March 1867.
    WALLACE, BIGLER & FIELDING,
    To Proth’y Com Pleas. Atty’s for Pl’ffs.
    9th March, 1867.”
    “ Copy op Statement.
    In the Common Pleas of Clearfield County, Penn.

    Int. from 14 Feb’y,. 1857, to 14 March, ’67, 72 04.
    Cost paid by pl’ff, 1 13.
    New Debt. $192 30.
    Int. 14 March, ’67.
    To Proth’y Com. Pleas.
    WALLACE, BIGLER & FIELDING,
    Atty’s for Pl’ffs.
    11 March, ’67.”
    [Here follows another writ of Scire Facias, with same return enclosed as above copy of writ, except it is dated March 11, 1867, and made returnable the 3d Monday of March, 1867. The record then continues:]
    “MARCH TERM, 1867.
    Copy op Appearance Docket Entry.
    W. B & F. Reed & Mason vs. Samuel Evans. Pro. E., cost, $1 25 Pro. E., 3 01 Sh’ff Faust, cost, 50 Att’y, 3 00 Too late for record, Paid by pl’ffs, By the Court. 2 50

      Alias Scire Facias to revive Judgment No. 165, Jan’y T., 1857. (See 43J, Sept., 1866.)
    So ans. Sh’ff Faust. And now 20 March, 1867, on reading the docket in open Court, and no appearance by defendant, on motion of Wallace, Bigler &

      Fielding, Esqs., judgment in favor of the plaintiffs for the •sum of one hundred and ninety-two dollars and thirty cents. Debt, $192 30. Int. 14 March, 1867. Judgment.
    D. F. ETZWEILER, Proth’y.”
    “ Lien Docket Entry.
    Evans, Samuel
    Reed & Weaver.
    No. 102, March T., 1867'.
    Entered 20 March, 1867.
    Debt, $192 30.”
    Copy of Note
    “ One day after date, I promise to pay the order of Reed & Weaver, the sum of one hundred and nineteen dollars and thirteen cents, with interest from this 14th day of February, A. D. 1857, for value received, without defalcation, and further I.do hereby empower the Prothonotary or any attorney o.f the Court of Common Pleas of Clearfield County, .or- elsewhere, or any court of record, to appear for me; Samuel Evans, and after one or more declarations filed as of the last, next or any subsequent term, to confess judgment against me for the. above sum, with cost of suit, release of errors in the entering of said judgments or issuing any process thereon.
    Witness my hand and seal, the 14th day of February, A. D. 1857.
    In the presence of SAMUEL EVANS. [seal.”J
    W. W. Betts.
    The above constitutes the ‘entire record as produced and proved before the Justice, with the exception of the alias writ Scire Facias above referred to in parenthesis, and also excepting the certificates of authentication.
    On producing this record the plaintiffs rested their case.
    On the part of the defendant, it was proved that the defendant-had lived in the State of Michigan since January, 1857; that no process for the renewal or revival of the judgment was ever served on him, and that he knew nothing of the proceedings by scire facias to revive the judgment. Some other matters relative to payment and arrangements to pay the note were proved, but not deemed necessary to refer to in deciding the question involved.
    The Justice rendered judgment for plaintiff for amount claimed.

      K. P. & J. B Eldridge, for Plaintiff in Error.

      Hubbard & Cocker, for Defendants in Error.
   By the Court,

Mitchell, J.

The record of a judgment as presented, is so imperfect as to scarcely warrant its being received as a judgment recoi d. It does not in fact purport to be a judgment record, but only copies of the minutes of proceedings.

It is true that by the Act of Congress, of May 26,1790, “ the records and judicial proceedings of the courts of any State, shall be proved or admitted in any other court within the United States, by the attestation of the Clerk and the seal of the Court annexed, if there be a seal, together with a certificate of the Judge, Chief Justice or presiding magistrate, as the case may be, that the attestation is in due form, and that the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the State from whence said records are or shall be taken.”

Whatever there is of the supposed records produced is duly authenticated.

But the question arises, what is a record? It ought to be something more than a mere minute of proceedings, and that is all that appears by this certified copy.

So far as the proceedings produced and authenticated are concerned, there appears neither writ, declaration, plea or appearance, and in fact nothing that is usually deemed necessary to constitute a record of a judgment.

So far as appears all matters certified are the mere minutes of the Clerk or Prothonotary, from which a record was to be or should be made- up.

It seems to me that a mere certificate of a Clerk of. a Court that a judgment was entered on a certain day, in a certain court, between certain parties, would be as much oí a record as that produced. But it is not necessary to determine as to the validity of the judgment in 1857, or as to the sufficiency of the certified record in that respect. As to the defendant, he living in the State since its entry, and the plaintiffs living within the United States, action upon that judgment would be barred by the statute of limitations.

Put the declaration is upon a judgment of March 20th, 1867 The only effect of that judgment is to renew and keep in life any lien the plaintiff may have had in the State of Pennsylvania, under the original judgment of 1857, upon the defendant’s property in that .Stale.

It cannot go to the extent of oinding the defendant personally, who was á resident of another State, and who was not-served with and had no notiee of the process.

The very words of the scire facias, the renewal process re. quiring the defendant to show why the said plaintiffs should not have the above judgment revived to continue the lien,” &c., indicates that it was so treated and regarded in that State. It would be extraordinary to give the judgment of revival greater force or effect than it would have iu the courts where rendered. To say that a judgment can be rendered in any court where there is no service, is a violation of all rules, except in eases where the process affects property seized or held under it, and then only as to the property so held.

In this ease the return of the two writs of scire facias or re. newal writs is “ N. E. I.” {non est inventus.) “ So' ans. Sheriff Faust,” clearly showing that there was no service upon the defendant.

Held, That the judgment declared upon is not a judgment upon which the defendant can be held, personally liable in this Slate, and that as to the original judgment it has been barred by the statute of limitations.

Judgment reversed, with costs.


author: Brows, J.

text:
    George Percival, Plaintiff in Error, vs. William H. Tucker Defendant in Error.

    M’ltere a, constable urafcca return to a writ of attudnuont, issued by a Justice of tiro Peace, that he left » copy of the writ and inventory with the person in whose possession ho found the goods, but omits to state whether the defendant has or has not “a last place of residence in the county,” the defendant not appearing • in the suit, the Justice is not authorized to retain the case; and a judgment rendered against the defendant under such •circumstances, will be reversed.

      Van Buren Circuit,

      August, 1871.

      Certiorari to Justice’s Court.
    A writ of attachment was issued from a Justice’s Court, and levied upon the goods and chattels of the plaintiff in error. The return oí the officer serviug the writ, was as follows:
    “ By virtue of the within attachment, I, William Mead, on the 26th day of May, 1871, seized the goods and chattels of the defendant, mentioned in the inventory, of which the annexed is a copy, and on the same day 1 left a copy of the within attachment and of the said inventory, with Cullen Percival, duly certified by me, in whose hands I found the property — not being able to find the said defendant.-
    WILLIAM MEAD, Constable.”
    On the return day of the writ, June 3d, 1871, the cause was adjourned until July 5th, 1871.
    The delendant not having appeared in the cause, the plaintiff introduced his evidence, and the Justice thereupon rentier ed judgment in Favor of the plaintiff.

      'Foster & Coleman, for Plaintiff in Error

      Wm. H. Tucker, Defendant in Error, in person.
   By the Court,

Brows, J.

Of the nine assignments of error ■urged as grounds for a reversal of the judgment in this cgse, it is only necessary to'consider the second, which raises the question of the Justice’s jurisdiction.

It is well settled that in this class of eases the requirements of the statute must be complied with in order to confer jurisdiction. The statute, §.3680, C. ¿..provides that, “ If the defendant cannot be found within the county, the constable.shall leave' a copy of the attachment and inventory certified by him, at the last place of residence of the defendant, if there be any such place within the county, and if not, then by leaving the same with any person in whose possession such goods and chattels, moneys and effects, may be found."

The return of the officer shows that the writ was left' with the person in whose possession the goods were found. If the defendant could be found in the county the service should have been upon him; if not, then by leaving the writ and inventory at his last place of residence, if there be any such place in the county; if the defendant cannot be'found in the county, and if there be no such place as his last place of residence ' in the county, the officer may serve the writ and inventory upon the person in whose possession the goods were found ; and this latter mode of serviee can be made legally only when neither of the other modes of service can be effected. This being so, the return of the officer should have shown affirmatively that neitber of the first two modes of serviee could be made.' In the absence of such return the Justice, was not warranted in retaining jurisdiction. See 18 Wis., 397; 9 Id., 342; 19 Mich., 78; 2 Hilt., 212; 15 Ohio, 435; 2 Wait's Law & Prac., (2d Ed.,) 174; 2 Mich. Nisi Prius, 164.

The judgment of the Court beiow must be reversed, with costs to plaintiff in error.


text:
    The Oneida National Bank vs. Angelo Paldi and Lewis D. Paldi.
    - Perishable property,71 la thft statute providing for its sale, (Comp. Laws, 1274, £ 4767,) whou seized under attachment means only property in itsown nature perishable, and notproperty which by extraordinary exposure may be liable to loss or destruction, if so situated that its safety can be provided for by the attaching officer.

      St. Clair Circuit,

    1871.
    . Application to Judge for an order to sell the personal property-attached; for the reason that, as alleged, the property is perishable.
   By the Court,.

Mitchell, J.

The statute, Sec. 4767, Comp. Laws, provides for the sale, under the Circuit Judge’s order, of - aaimals or perishable property” seized under an attachment, upon due proof of the perishable character of the property seized.— What proof is necessary is not provided by statute.

The affidavit on behalf of the attaching creditor in this ease states that the' property seized consists of a portable engine and boilers, a lath and shingle mill, gearing, belting, shafting and other machinery and articles usually connected with such an engine and machinery, situate on the lands of one of the defendants, at a remote place in the woods, from whence it cannot easily and withoui.njury he removed, and that it is liable to loss by trespass and theft or otherwise as now situated, and that to keep it safely requires two watchmen at a cost of four dollars a day, and if so held until judgment passes will cost to take care of it about five hundred dollars, while the whole value is about three thousand dollars.

It does not occur to me that the property described comes within the class of property meant or intended by the statute under the designation “ perishable.”

I think the statute means property perishable in its own nature or character, and not property th*"-. is or may be subject or liable to. loss by trespass, larceny or fire.

If such is not the meaning of the statute, then a stock of goods or almost any possible description of personalpropertymaybeputin the class of perishable, if it happens to be in an exposed condition or situation.

If all such exposed property was .intended’to be covered by the statute, why did not the statute distinctly and íd terms include property liable to loss by trespass, theft or fire, or by exposure.

If the property is in the exposed or dangerous condition claimed. then it is clearly the duty of the Sheriff to remove it to a safer place, at least all parts of it liable to be removed or talen away by other persons, by trespass or otherwise.

Order for sale refused.


text:
    John Stilson et al. vs. Charees Greeley et. al.

    Objection to tbe míense of the process of the Court for the purpose of acquiring jiijnstiicfioi* of the person, must be made at the first opportunity and before plea, or it will be deemed waived. It will not be heard on a motion to change venue after appearance and issue joined In a transitory action the defendant who might have objected to the jurisdiction over hfe person, will be deemed to have waived such objection, after issue joined.
    Trover for logs cut from land is not a local action but will be triod in any court obtaining jurisdiction ot the person.
    Title to land cannot be tried ina transitory action against tbe actual occupant claiming adverse title.

      St.Clair Circuit,

    1871.
    Motion to change venue.
    This suit was commenced by summons issued November 9tb, 1869, returnable the 1st Tuesday of December, 1869, and served on some of the defendants November 9, 1869. Orrin Erskine, was not served.
    On the 27th of November, 1869, Mr. Chadwick entered the appearance of the defendants served.
    The declaration was filed on the 27th of December, and plea filed January 27th, 1870.
    April 26th, a stipulation was made for taking the testimony of defendant’s witnesses at Alpena, and that the cause should stand for trial at the ensuing May term. The cause was not reached or for some other reason went over that term.
    The cause was noticed for trial at the September term, 1870, and tried 29th, the jury failing to agree upon a verdict.
    November 8th, 1870, the defendants made and filed an affidavit and entered a motion for change of venue.

      Motion brought on to be heard this day, August 7th,1871, efforts having been made to have it'heard at former times, but delayed for want of time or convenience of parties.
    The affidavit upon which the motion is based, alleges :
    That the action is trover for lumber and logs cut from lands in Alpena County.
    That the whole subject matter of the suit arose in Alpena County.
    That all the defendants were at the commencement of the suit and still are residents of Alpena County, except Charles Oldfield, who is a non-resident of the State, residing in Ontario.
    That neither of the plaintiffs were residents of St. Clair County at the time of commencement of suit.
    That defendants have, as advised by counsel, a good and substantial defence on the merits.
    That by a deyiee and trick, under pretence of a subpoena to tes-tify in a case not then at issue, defendants were brought into St-Clair County, where process was served upon them and that such service while under a subpoena as witnesses was an abuse of the process of this Court — yet, the defendants believing they had a good defence, pleaded in this cause and went to trial, when the jury disa* greed.
    That each of the defendants is a material witness in the cases and twenty other persons, naming them, all residents of Alpena County, are also material witnesses for the defendants, most of them as to the value of the property alleged to have been converted, making twenty-three in all, and without the testimony of each they cannot safely proceed to trial.
    This affidavit is made by two of the defendants and the one not served, and who does not appear. The other defendant does not join in the affidavit, nor is any reason shown why he does not, exeept that he is stated to bo a resident of Ontario, and a non-resident of this State.
    The depositions of George and Charles Erskine, and Charles Greeley, three of the defendants, and three of the other witnesses named, were taken under the stipulation, snd filed June 29th, 1870.
    The counter affidavit of plaintiffs states :
    That both of the plaintiffs are residents of St. Clair County, but it does not state that they were at the commencement of the suit.— That they have a large number of material witnesses who reside inSt. Clair County, naming them, including themselves, thirteen in all, each of whom is material.
   By the Court,

Mitchell, J.

The first question raised in the motion, and perhaps the one most seriously urged, is, that the service upon the defendants was procured by the fraudulent use of the process of this Court, a subpsena issued, as is claimed, for the purpose of bringing the defendants within this jurisdiction, for the sole purpose of commencing- this suit in this county, and Hot in good faith to procure their attendance as witnesses in a cause at issue.

If before appearance generally or pleading, a motion had.been made to dismiss the suit or quash the writ for that reason, and the fi^ct had been satisfactorily established, there would have been no hesitation in granting the motion.

The use of the process of the Court under one pretest and for an entirely different purpose such as forcing a party within the jurisdiction of the Court to get service would be. a gross abuse of the process and machinery of the Court, and would not be allowed when brought to the notice of the Court-iu'propor time. — : But if the party comes into Court and voluntarily pleads and submits to the jurisdiction, he cannot afterwards take advantage of the improper manner in which the jurisdiction was acquired.

Such amotion is in the nature of a plea in abatement, which is never received after plea in lar, unless pleaded, puis da rim continúame, for such reason arising since the last continuance.— 1 Burrill's Practice, 152.

If the subject matter is not within this jurisdiction, that may be taken advantage of under the general issue” whenever the want of jurisdiction is made apparent.

It is therefore unnecessary to pass upon the question whether any such fact has been established, and I do not pass any opinión upon what has been proved or not proved in that respect.

it is clear tjfift’the. manner of acquiring jurisdiction of the person of the defendant, is not proper matter to be considerep on a motion to change the venue.

The second . reapon is that the defendants and their witnesses, to a large number, reside in a distant county, where.tfto cause of action arose, and it is at greabinconvenience that they or their testimony can be procured in this cpunty.

The plaintiffs also sho.w. that they have a large number of witnesses resident in or near St. Clair County and at a distance .from Alpena.

T.he affidavit to change venue should properly be made by all the defendants served with process unless they suffer default and refuse to appear; at least, they must all join in the motion.

If the motion is grounded upon the convenience of parties and witnesses, the affidavit should state the names of the witnesses residing in the county to which the venue is proposed to be changed and their residence, stating the town, village or particular place of residence, in addition to the county; 6 Cowan, 389; 1 Hill, 671; 1 Howard, 195; and that each and every one of them is material to the defence, as the defendants are advised by counsel and verily believe, and that without the benefit of the testimony of each and every one of them they cannot safely proceed to trial, as-advised by counsel and as they verily believe, and that they have a good and substantial defence on the merits, as advised by counsel and as they verily believe, and if not made by all the defendants it should show the reason why. It is well to state also the nature of the controversy, and when the cause of action or the defence arose, and these facts should be taken into consideration in fixing the place for trial.

The plaintiff may resist the motion by showing material witnesses residing in or near the county where the venue is laid. In the State of New York, the plaintiff under their Hisi Prius practice, where in a case in the Supreme Court the plaintiff laid the venue in any county most convenient to himself, or even by his own caprice, the plaintiff was required in order successfully to oppose the motion, to swear unqualifiedly that he had witnesses in or near the county, of an equal or greater number with the defendant, or the venue would be changed.

Special rules as to changing venue in that State were required and made growing out of this judicial system.

There is no doubt that all required by these rules for the defendant to ■ show in order to change a venue should be requirocl here. Whether as full a showing will he required to -defeat the motion, would be subject of doubt.

In some of the eases it is said' that if a party swears to a great number of witnesses as material, it will be considered as a fraud upon the Court, especially upon questions of value, unless so explained as to satisfy the Court that the number of witnesses is necessary.

I have given these rules somewhat at large not as criticisms on the affidavits presented, as most of the rules are complied with, but because motions to change a venue in this State are rare and seldom made, at least the Supreme Court has never had occasion to pass upon any such motion, or rather no such matter has found its way into the reports, and from the nature of the motion, it being discretionary with the Circuit Courts, it is highly improbable that our Supreme Court will be called to decide upon the subject

Our statute provides (Sec. 3420 Comp. Laws,) that each of said (Circuit) Courts, upon good cause shown, may change the venue of any cause pending therein, &e.

Unless there is a clear abuse of this discretion, the decision of the Circuit must be final.

There is, however, another rule as to changing venue not yet considered; that is as to the time when the motion should be made, if the change is sought for the convenience of parties and witnesses.

It ought regularly to be made before issue joined—4 Cowen, 554; 11 Wendell, 186;-but it may be made aiter issue, if -a trial has not been lost, and no delay will be produced, otherwise it will be refused.

In this case the defendants have not only plead, but have taken the deposition of all the defendants and other of the witnesses named in their affidavit, and have gone to trial and had a disagreement of the jury It would seem rather late now to make or grant the motion at so late, a stage in the case for the convenience of parties and witnesses.

There is still another question raised by the motion, and that is whether the action as stated and claimed is local or transitory.

The act of 1861, Sess. Latos, p. 173, and as re enacted in 1871¡ Sess Laws, ’71, p. 37, makes the action of trespass on lands, or trespass on the case for direct or consequential damages to personal property, when the defendant is not an actual resident of the county in which such lands are, a transitory action.

Sec. 2, of chapter 103, of Revised Statutes; Sec. 4344, of Comp. Laws, as amended in 1869—Sess. Laws, ’69, p. 9, provides:

'• Issues of fact shall be tried in the proper county, as follows :

“ 1. Actions'for the recovery of any real estate or for tile recovery of- the possession of real estate; actions for trespass on lands, and actions of trespass on the ease, for injuries to real estate, shall be tried in the county where the subject of the actions shall be situated.
“2. Actions of slander, for libels, and all other actions for wrongs, and upon contracts, shall be tried in the county where one of the parties shall reside at the time of commencing such action, unless the Court shall deem it necessary for the convenience of parties and their witnesses, or for the purpose of a fair ■ and impartial' trial, to order such issue to be tried in some other county, in which case the same shall be tried in the county so designated.”

This amendment is a verbatim re-enactment of the section as it stood in the Compiled Laws, except the words, “ joined in such actions,” are left out, which under the law as it was, would appear to limit the provision to actions áiising in Probate Courts. The repeal of this provision as to Probate Courts, made it necessary to reenact section 2, of the chapter, and make it applicable to all issues of fact.

By the defendant’s affidavit it appears that all the defendants but one, (who is a non-resident of the- State,) were and are residents of Alpena County, and that neither of the plaintiffs at the time of commencement of suit was a resident of St. Clair County.

This is not denied by plaintiffs except they swear they are nonresidents, &o., but I think it an objection to the local jurisdiction of the person that should have been made and taken advantage of. before issue joined, or at least before proceeding to trial, and that this objection has been clearly waived.

If a defendant in a transitory action appear without objection, the Court will have jurisdiction although the action be improperly brought in a county where neither of the parties reside, but it will be otherwise in the case of a local action.” Webb vs. Godard, 46 Maine, 505.

But the defendant’s, affidavit also states that the action is for trover for the conversion of logs in Alpena County, cut from lands in that county, and that the real subject matter of the suit is for trespass on lands and the conversion of logs taken by the alleged trespass on lands in that county, the defendants claiming to have cut them under a license from one of the plaintiffs, and that the whole subject matter including the alleged conversion arose in the county of Alpena, a duly organinzed county, having a Court, &c.

This allegation or statement is not denied by the plaintiffs in their couuter affidavits, and must’be taken to be established or admitted to be true.

The action is for trover to recover the value of logs and lumber. From the nature of the case as slated in the affidavit, it wouid appear necessary for the plaintiff to prove- title to the lands, (it being wild or unoccupied land) to show ownership of th^ logs, but- the ownership of the laud is not disputed, and it can scarcely be said to be an action of trespass on the case for injuries to real estate. A suit in trover, waives or passes by the the injury to the realty, and seeks to recover the value of the chattels severed and converted without regard to the injury to the land.

But it is claimed that it has been decided in some of the States' especially Pennsylvania, “ that the right of property in a chattel that has become such by severance from the freehold, connot bo tried in a transitory action;” citing Prwel vs. Smith, 2 Watts, 127; Brown vs. Caldwell, 10th of Sergeant & Rawle, 114; Mather vs. Trinity Church, 3 S. & R.; Baker vs Howell, 6 Id.

Upon a careful examination of these authorities it is manifest that they only apply to cases where the owner - of real estate out of possession, seeks to recover from the adverse occupant the value of timber, coal, &o., cut or removed by the occupants claiming title, and in effect they only decide that the title to the realty cannot be tried in a transitory action against the actual occupant.— -Xo case goes so far as to say that title to unoccupied lands cannot be shown in a’ transitory action for the purpose of showing the ownership of the property severed.

In this case the defendants base their claim upon a license from the plaintiff and so admit their title and ownership so far as appears by the papers submitted on this motion.

In view of the whole case and its present situation in Court, I must décide against the motion to change the venue.

Motion overruled, &e.


author: Blackman, J.

text:
    Krieger vs. Warner.
    Replevin for a stock of groceries, — Held, That wliore the quantity, kind and location of the property to be replevied is given in the writ so that no other properly than that claimed can bo taken, the description is sufficiently particular to comply with tho statute, and protect the rights of the defendant.
    A %eturn which nhows th'1 appraisement of goods replevied to have been made on oath administered by the officer, to make a tnio appraisement, sufficiently «hows in what manner in this respect the officer executed the writ.
    A declaration filed within ton days aftor the return day of the writ of replevin is in time.
    A neglect to file the declaration in time is no ground for quashing a writ. Such neglect can only be taken advantage of by rule to declare and judgment of non pros.

      Berrien Circuit,

      October, 1871.
    Motion to quash writ of replevin.
    Iicaver, for motion.

      Muzzy, opposed.
   By the Court,

Blackman, J.

The plaintiff replevied a stock of groceries attached by the defendant as Sheriff.

The defendant now moves to quash, for three reasons :

1. Because of the insufficient description of -the goods in the writ.

2. Because the goods were .not appraised according to la.w.

3. Because the Narr was not filed until after the time prescribed, viz : on the return of the writ.

The several objections will 1)3 considered in thejr order. The statute. Chap. 152, nowhere prescribes the certainty with which the good replevied shall be described.

In § 5010, which gives a form for-thc writ, á blank' is directed to he filled by “ describing the- goods and chattels to be replevied.” 1 n the absence of a statutory provision the Court must apply the common law rule, which requires certainty to a general extent, its expounded io 18 Mich., 170. And the proper application of this rule must be controlled by the peculiar circumstances of the ease.— Potter’s store bad been shut up by the Sheriff. Obviously no such thing as an inventory is possible. He has given as many limitations to the descriptions as were in his power, by confining servicer of the writ to all the groceries in the store occupied by Potter, on a certain lot in St.« Joseph. The kind, quantity and location of goods are specified.

The ¡defendant has takeu inventory if he has executed the writ-of attachment so that his rights are not. periled. See on this point, Grah. Pr., 733; Petersdorff’s Abr., 194.

The second objection does not appear to be founded on facts.— The counsel for defendant in pointing out the particular fact on whieh he relies, states that from the officer’s return it does not a’ppcar the appraisement was made on oath. By § 5018, the officer must return the manner in which he executed the writ. It appears front the appraisement and return that all the statute required was done. The oath itself need not be returned.

The third and last objection is based upon a peculiar construction of § § 5026. 5027, and decisions on statutes found in 2 Wis.. 17; 4 Id., 152; 1 Hill, (Cal.,) 216. The writ may be returned before the return day. § 5018. On such return the Clerk shall enter an appearance for the defendant.

Counsel for defendant claim the next section, 5027, requires the plaintiff to declare u within the same time,” leaving out of this connection the words, “ as in personal actions.”

On the counsel’s own construction this default is only ground for a judgment of discontinuance. See Grah. Pr., 732, for directions; or 1 Burr Pr., 488.

The counsel for defendant has wholly misconstrued the statute which requires plaintiff to declare in the same time as in personal actions, which is, (R. 16,) twenty days after the return day. The Narr was filed ten days after.

The motion is therefore denied with costs.


author: Brown, J

text:
    Miles B. Miller vs. Hugh Finley, Jr., and Hugh Finley, Sr.
    Whenever it appears that the consideiation of a paper between the original parties has been procured by fraud, proof of such fraud throws upon the holder the burden of proving that he got it in good faith, and gave value for it.

      A bonaf.de holder of negotiable paper is one who acquires the paper in good faith, for a valuable consideration, from one capable of transferring the paper, without notice of the consideration or of attending facts aud circumstances which would naturally lead uu honest man, using ordinary caution to make further inquiries.
    The rule is that an innocent purchaser of commercial paper takes it stripped of all equities between thjjs original parties to it, but where the instrument is nut the contract of the parties, where it is different from what they made, it or intended to make it, it cannot bo enforced in the hands of any one, unless indeed, the instrument in its changed form has been ratified by the parties so as to make it their contract.
    Adding the name of another drawer or maker to a bill or note, is a material alteration, such m> will discharge the original party not consenting thereto.
    Where it was claimed that the payee named in a promissory note procured the signature of the maker while such maker was intoxicated, the intoxication being brought about by the payee named in the note, Held, That if the maker-was so intoxicated as to be unconscious when he signed the note, such note would be void, even in the hands of a bonafde holder.

      Kalamazoo Circuit,

      October, 1871.

      May tfc Buck, Attorneys for Plaintiff.

      J. W. .Breese, Defendant’s Attorney; II. F. Seoerens, of Couu-
   Charge of the Court,

Brown, J

The plaintiff seeks to re cover of the defendants upon a certain promissory note, in the words and figures following:

“ $500. Schoolcraft, August 26, 1868.
Twelve months after date, I promise to pay to the order of Frank A. Hutton, Jive hundred dollars, value received, with interest at ten per cent. HUG-H FINLEY, Jr.
HUGH FINLEY, Sr.”

The payee in this note endorsed the same to the plaintiff, who claims that he purchased the same in good faith and for a valuable consideration, before the same became due. The plaintiff then endorsed the note to Win. B. Clark, who, he testifies, was to hold the same as collateral security for monies advanced by Clark to the plaintiff.

If the note was left with Wm. B. Clark only as security, and returned to the plaintiff before suit was brought, then the suit is properly brought by the plaintiff.

■ As a defence to this note, the defendants claim that the note, as to the younger Finley is void, because, .it is alleged, after the note was made and delivered, the payee, without the consent of the maker,- procured the signature of Hugh Finley, Sr., to the note.— Counsel for the defendants claim that if you find such to be the fact —if you find that after the note was fully executed and delivered, the payee procured the additional signature of Hugh Finley, Sr., without the consent of the maker of the note, then the change thus effected changes the note and makes it a different undertaking from the one to which he was a party.

Counsel for the defendants insist that the plaintiff should not recover against the elder Finley, because, they allege, that when he signed the note he was so intoxicated as to be unable, in point of fact to give his assent. . They claim that ho was so drunk that when his hand made the letters in proper order composing the name. Hugh Finley, it was not guided by any intelligent will, and that therefore he should be discharged. It is admitted that the fact that the son’s name is on the note does not invalidate it as to the father, and t.ho liability of the father must be determined on other grounds.

On the part of the plaintiff it is insisted that if you should find the facts as claimed by the defendant, still he is entitled to recover. The plaintiff insists that he purchased the paper before maturity, in good faith for a valuable consideration.

The rule of law, briefly stated, is, that where a party is the “ bona fide, holder of a negotiable instrument for a valuable consideration, without notice of facts which impeach its validity between the antecedent parties, if he takes'it under an indorsement made before the same becomes due, he holds .the title unaffected by these facts, and may recover thereon, although as between the antecedent parties the transection may be without any validity.”

, Whenever it appears that the consideration of a paper between the original parties has been procured by fraud, proof of such fraud throws upon the holder the burden of proving that lie got it in good faith, and.gave value for it.

This is upon the theory that “ if the note be proved to have been obtained by fraud, or affe.cted by illegality, that affords a pre sumption that the person who has been guilty of the fraud would dispose of it and place it in the hands of another person to sue upon it,” and hence the policy of the law requires the holder in sueh case to show that he holds the paper in good faith and for a valuable consideration.

When a note has been obtained and put in circulation fraudulently, the holder in order to show himself free from defendant’s equities must prove that he became such holder. in goud faith for a fair and valuable consideration, in the usual course of business, without notice of any infirmity in the title thereof.

A bonn fide holder of negotiable paper is one who acquires the paper in good faith, for a valuable consideration, from one capablc^of transferring the paper, without notice of the consideration or of attending facts aud circumstances which would naturally lead an honest man, udug ordinary caution, to make further inquiries..

Where however, a note is absolutely void, the transfer of it to an iunocmt party cmnot make it valid.

If you find that the deed for which the note was given was worthless, this lact is no defence in this action, if the plaintiff bought the note before maturity, for a valuable consideration, in the usual course of trade aud without notice or knowledge of a want of consideration betweei? the parties to the note. •

If you should fiud that the note in question was obtained of the defendants by fraud aud imposition, this fact furnishes no defence in this action, if the plaintiff bought the note before maturity) for a valuable consideration, in the usual course of trade, and without knowledge or notice that the note was obtained fraudulently and by imposition, or of such facts as would naturally put an honest man on inquiry.

I also advise you whether the patent of which the right was sold to Finley, was or was not of a new or useful invention, is wholly immaterial in this case, and you have no right to consider that question in making up your verdict, if you find the plaintiff was a bona fifie purchaser. The rule is that an innocent purchaser of commercial paper takes it stripped of all equities between the original parties to it, but where the instrument is not the contract of the parties, where it is different from what they made it or intended to m ike it, it cannot be enforced in the hands of any one, unless indeed, the instrument in its changed form has been ratified by the parties so as to make it their contract.

Adding the name of another drawer or maker to a bill or note, is a'material alteration, such as will discharge the original party not consenting thereto.

If you believe from the evidence that after the note was made perfect, according to the intention of the parties, as %e several note of the defendant, Hugh Finley, Jr , and after it had been completely issued and negotiated, the payee without the consent of Hugh Finley, Jr., caused it to be signed by Hugh Finley, Sr., as a joint and several maker along with such original maker, such original maker should be discharged from all liability thereon.

Upon this point I advise you as requested in plaintiff’s,2d request, that the note is not void as to Hugh Finley, Jr., if he in any way assented to its being signed by Hugh Finley, Sr,, either before or after it was so signed by Hugh Finley, Sr.

It is claimed as I have said, by the defendants, that the elder Finley was intoxicated when he signed his name. If you find from the evidence that the signature of Hugh Finley, Sr.,was made while he was so intoxicated that he was unconscious of what he was about, and such intoxication was procured and brought about by the payee in the note, or any one acting in complicity with him, then you are. instructed that such signature would not bind the said Hugh Finley, Sr., and he would not be liable on such note.

If Hugh Finley, Sr., at the time of signing his name to- the note was sufficiently conscious to know that he was' signing .a promise or agreement of any kind, then the fact that he was under the influence of intoxicating liquors furnishes no defence to this action, though he would not have given the note if he had been sober.

In determining the question whether Hugh Finley, Sr., was in possession of his faculties to such an extent as to be able to make a valid contract, you are at liberty to inspect the note in controversy and the signature of Hugh Finley, Sr., thereto.

When you retire to your room you will enquire:

1. Whether the note was changed by the addition of the name of Hugh Finley, Sr., after it was executed and delivered by the maker Jo the payee, without the consent of the maker. If you so find, thou Hugh Finley, Jr., was thereby discharged from liability'on the note unless you find that he subsequently acquiesced in the change.

2. To discharge Hugh Finley, Sr., from liability on the note, if you find the plaintiff purchased the same in good faith, for a valuable consideration, you must find that lie was so far intoxicated as to be unconscious.of what he was doing. A man will' not he permit-' ted to come into Court and defend against his own undertakings, merely because he was drunk or exhilarated under the influence of liquor. Sueh a precedent would be dangerous, and no man would be safe in purchasing commercial paper. The. fact that a man gets drunk and makes a foolish bargain is no reason why he should repudiate his contract to the prejudice of persons acting in good faith.— It is contended that the signature of the defendant indicates that he had knowledge of what he was doing, but.this is a question of fact for you and not for the Court to pass upon. If he signed the note, was he conscious ? Say upon your oaths what are your honest convictions in the premises and act accordingly.