author: Brown, J.

text:
    Mary Kempsey, Appellant, vs. Nancy Maginnis at. al., Appellees.
    4?roof of will — order of proofs.
    The ljxw requires that a person in order to make a valid will, should havea sound and disposing mind and memory. The mind need not necessarily be in its full vigor and power, but its faculties should be, so to speak, in working order, with an active power to collect And retain the elements of the business to be performed, for a sufficient time to perceive th^ir ol^vions relation to each other.
    In determining mental capacity, tho jury may look/at the provisions of the will, may consider tho history and relations of tho testator, his previous conduct and language in relation to those related to or acquainted with him, and lus previous determination as expressed by njin as to what disposition he intended to make of his property, as well as the testimony of witnesses who swear to his actual mental condition as witnessed by them at the time of making bis will \ and may consider the testimony of experts whoso opinions are predicated upon certain assumed facts, provided such assumed facts aro proved.
    The testator need not, in terns request tho witnesses to attest tho will. It is immaterial how the request is conveyed to the witnesses, if it appear that such request was the free and intelligent act of the testator.
    J»y improper and undue influence, is meant the dominion acquired over tho 'mind of another . which prevents tlie exercise of discretion and destroys freo will.
    Admissions made by legatees or others, after tho execution of the will, as to the sanity of the testator, are not admissible as bearing upon the question of mental capacity»
    Conflict in testimony — Rules as to weighing evidence, discussed.

      Kalamazoo Circuit,

      March, 1871.

      Sherwood <Sc Edwards, for Appelknt; G. S. May, of Counsel.

      Vm. Fletcher, for Appellees; D. Darwin Hughes and IT, F. Severens, of Counsel.
   Charge of the Court,

Brown, J.

Gentlemen of the Jury:—

A certain instrument in writing, purporting to be the * lost will and testament of Thojnas Patterson, was admitted to probate*in the Probate Court of this county.-. An appeal has beenN token from the decree of that Court, and the issue now is as to the' validity of that instrument.

The contestants claim that the will is invalid for these reasons :

1. That the will was not executed and attested in the manner required by law; that the mark at the end of the will was not declared by the testator to be his signature, and that the witness, Abbott, was not requested by the testator to sign the wil) as a witness.

■2. That when the will was executed the testator was not of sound mind and memory; that he was attacked on Tuesday or Wednesday, the 12th or 13th of December, 1865, with pleuro pneumonia, of which disease he died on the evening of Saturday, the 16th; that the progress of the disease was such that op Friday, his right' lung was completely hepatized, and that the disease was then in its first and second stages in the left lung, and that the effect of such disease at that time was to render the testator incapable of transacting any business requiring an exercise of the judgment, the reasoning faculties and a consecutive continuation of thought, and'that he was then incapable of planning and executing such a paper as is offered as his will.

Every person of twenty-one years of age and upwards, of sound mind, may devise, bequeath and dispose his property by his last will and testament in writing.

The validity of the instrument under considertion depends upon the existence of the following facts:

1. That Patterson was, at the time he is alleged to have executed the instrument twenty-one years of age or upwards.

2. That he had sufficient mpntal capacity to make the same.

3. .That it was signed by him or by some one in his presence and by his express direction.

4. That it was attested ahd subscribed in the presence of the testator by two or more competent witnesses.

In the first instance it devolves upon the proponents pf the will to establish all these facts prima facie ; and by prima facie we mean such evidence as satisfies the mind, unless rebutted.

When the proponents have presented evidence which they deem sufficient for this purpose, they rest their case, wheréupon the contestants offer their proofs tending to invalidate the will. Such evidence constitutes the contestant’s case. And the. proponents then offer evidence tending to rebut that introduced by the contestants. The contestants then introduce testimony tending to impeach that offered by the proponents; but aro not permitted to go into any new matter in support of their original ease.

This is the third week of .the trial of this eause, and no.w á!fter having patiently listened to the evidence and arguments of counsel you are to say whether the facts are such as, when the law shall be applied to them as directed by the Court,' the instrument under con. sideration embodies the legal declaration of Thomas Patterson’s iuteritipns of what he willed to be performed after his death.

No particular form of words are necessary to make a valid will. "Words are used to express ideas and intent. And if the idea and intent may be gathered from the words, that is all that is necessary in this particular. The law dries not require of a testator, in order that he should,make a v^lid will that he should dictate'the form-and framework of the instrument; but the substance must be his, and he must declare it to be his last will. As to the signature it is sufficient if it' be. by a cross or other mark by the testator as and for his signature.

You are to find from the evidence whether Tbcmas Patterson was of lawful age and of sound mind; whether in making what is claimed as his will he acted freely and not under restraint or was subjected to undue and improper influences. In short, whether it was made, signed, published and attested with'the requisites and in the manner prescribed by law.

Does the paper here offered and propounded for probate contain and embody the designs and intent of Patterson as to the disposition of his property ?

Upon the question of mental capacity — as to what degree is necessary tp,enable a person to make a valid will — I advise you in tlie language of my learned brother, Judge Littlejohn, who presided at the former trial of this cause: “ Aside from the requisite formalities in the making of a will, the law defines the requisite soundness or mental capacity of the testator in this wise: A will is not valid unless the testator not only intends of his own free will, to make such a disposition; but is capable of knowing what he is doing, of -understanding to whom, he gives his property and in what proportions, and whom he is depriving of it as heirs, or as devisees under the will he makes.

“ If a testator has mind enough to know and appreciate his relations to the natural objects of his bounty, and the character and the effect of the dispositions of his will, then he has a mind sufficiently sound to enable him to make a valid will.

“If the jury-should be satisfied that though'the testator’s men-tal powers had become enfeebled through mental, decay or disease; bo still had disposing mind, and if you- find the evidence sufficient to show that he fully understood and intended to make the- disposition which he has made of his property, then the will must .stand, as touching the question’ of mental capacity or soundness,’ however unnatural or unjust its provisions may’ appear. Such are the tests the law prescribes for the guidance of courts and juries.”

Upon this same question, our own Supreme Court in passing upon this very case, (20 Mich.,) uses the following language:— “ But what degree of mental capacity is necessary to enable a testator to make a valid will, to what extent and with what degree of perfection he must understand the will and the persons and property affected by it, or to what extent his mind must be impaired to render him incapable, is a question of law, exclusively for the Court, and With which the witnesses have nothing to do. -And'it is a question of law of no little difficulty, which calls-for the highest skill of competent jurists, and- upon which the ablest courts are not entirely agreed. The rule settled by the weight of authority undoubtedly is, that a less degree of mind" is requisite to execute a will than a contract ; and though the testator must understand substantially the nature of the act, the extent of his property, his relations to others who might, or ought to be objects of his bounty, and the-scope and bearing of the provisions of his will, and must have sufficient active memory to oolleet’ in his mind, without prompting, the elements of the business to be transacted, and to hold them in his mind a sufficient , length of time to perceive at least, their obvious relations to each other, and be able to form some rational judgment in relation to them (Parish Will Case, 25 N. Y., 9); yet it is quite clear, from the great weight of authority, that he need not have the same perfect and complete understanding and appreciation, of these, matters, in all their bearings, as a person in sound and vigorous health of body and mind would have. Nor is he required to know the precise legal effect of auy provision contained in his will, for upon this, even the draftman of the will,, though competent, and in full possession, of all his faculties, may often fail; and even the best lawyers may not be able to pronounce with certainty till the question is settled by judicial authority.”

■The term“souud mind,” in the statute, does not mean that the testator shall have the same command of his mental faculties that he may have when in health. The law recognizing that wills are often made in extremis, When the bodily powers are breaking and the mental faculties are enfeebled, only requires that the testator shall retain so much of his mental power as will enable him to understand his relations to those who would be the natural objects of his b.ounty, the property he wished to distribute and the manner in which he intends to distribute it.

■Upon this question I advise you as requested by proponent's counsel:

“ That even if the jury are satisfied that the mental powers of Patterson had become enfeebled or disturbed by disease at the time be inade'the alleged will, still if they find from the evidence that he did yet fully understand and intended to make the disposition which he made of his property, then the will must stand as touching the question of mental soundness or capacity.”

You are instructed “ that if in the present case you should find from the evidence that • Patterson on the day he made the alleged will was delirious, or that his mental faculties were otherwise obscured by the disease from which he was suffering, still this would not necessarily prevent his having sufficient capacity in law to make a will. Delirium or obscuration of the mental faculties by disease must be so complete and so becloud the mind that the ft stator docs not understand the nature of the business in which he is engaged,” or does not understand at the time of making the instrument, substantially the act, the extent of his property, his relations to others who might or ought to be the objects of his bounty, and the seope and bearings of the provisions of the will, and does not possess the other qualifications I have already referred to.

The impairing of the mental faculties by the effects of acute disease, such as delirium, or the enfeebling of them from any of the causes incident to such disease, must be to that extent which deprives him of the use of his reason and understanding to the extent already intimated. For if this ‘is not the .testator’s situation although his understanding may be to some extent obscured and hi» memory troubled, yet he may make his will.

There is an essential"difference between the apparently lucid intervals in delirium and in general insanity. In delirium the apparent returns to reason may be real and unquestionable, while those which seem to occur in insanity are delusive, the patient being as really laboring under the power of the malady as in the more distinctly marked periods of its progress; but testamentary incapacity does not necessarily presuppose the existence of insanity in its technical sense. Weakness of intellect, whether arising from éxtreme old ago, from disease or great bodily infirmity, from intemperance, or from all these causes combined, when such weakness disqualifies the testator from knowing or appreciating the nature, effect or consequences of the act he is engaged in, renders sueh testator incapable of making a valid will. See Wheaton & Stille, Med. Jur., § 12.

The law requires that a person in order to make a valid will, should be of sormd and disposing mind and memory. And what we mean by soundness in this connection is, not that the mind should be in its full vigor and power, but that its faculties, its machinery, should be in working order, so to speak, with an active power to collect and retain tlic elements of the business to be performed, for a sufficient time to perceive their obvious relation to each other.

• From these considerations ycu will perceive that the testator must have intended of his own free will to make such a disposition of his property as is made by his will, and must have been capable of knowing what he was doing, understanding to whom he was giv-' ing his property,<md in what proportions and whom he was cutting off from it as heirs who would otherwise hafe inherited his estate; and was also capable of understanding the reasons for giving or withholding his bounty as to any of them. In short, the testator, at the time oí making the will must have been capable of exercising Ms judgment, bis reasoning faculties and a consecutive continuation of thought.

In determining the question of mental capacity, a wide range is a1 ways permitted. The jury may look at the provisions of the will,.may consider the history and relations ot the testator, his previous conduct and language in relation to those related'to or acquainted with him, and his previous determination as expressed by him as to what disposition he intended to make of his property, as well as the testimony of witnesses who swear to his actual mental condition as witnessed by them at the time of executing the will. If a party makes a will contrary to natural justice, this with other facts may be considered. But the mere fact that a will is not exactly according to what our own conceptions of justice would be, is not, of itself, sufficient to invalidate a will, for the reason that sane men are known to disagree in this respect. By “ nutural justice,” we mean that which is founded in equity, in honesty and right.— Natural justice requires that the parent shall, care for Ms children. By bringing them into the world, the parent engages to provide for them. Natural justice requires that the child who has been protected in the weakness of his infancy, should protect and support that parent iu the infirmity of his age. There are other relations in the hist'ory of every indiviual out of which obligations grow, but which are so varied and embrace so wide a range' that human tribunals cannot and do not attempt to enforce them. And wherever the question is presented as to whether a natural obligation has been created, it can only be by enquiring what honor or conscience dictates. But in determining in a ease like this, what. conscience dictates, we are not to consider alone the fact that this person or that person is a blood 'relation of the testator. Even under the civil law, where a parent was not allowed to disinherit his child without giving his reasons therefor — and the law recognized fourteen reasons either one of which was deemed sufficient to absolve the parent from what, without such reason would be deemed an obligation founded on natural justice. In short, the conduct of the child towards the parent was to be considered in determining the question as to whether natural justice required the parent to confer any portion of his property upon the child. Did the' child refuse to aid the father and to give him his services, and did he refuse to reverence his authority, natural justice did not require the father to treat the child in disposing of his property, any different from strangers.

I have been requested, and so advise you: “ That'there is a legal presumption raised by the law in favor of the sanity of all men, and although this presumption is not conclusive, still the jury should consider it in weighing the evidence in the case, of which for practical purposes it forms a part.” Aiken vs. Wickerly, 19 Mich., 502, 3.

As to the publication of the will, I advise you that no formal declaration is necessary. The statute in that particular is sufficiently complied with if the testator by words or actions indicates that he intends the instrument as his will, and desires to have the witnesses attest it as such.

The testator need not in terms request the witnesses to attest the will. It is sufficient if his desire that they should do so is manifested by an affirmative response to a question whether that was his wish put to the testator by another person, as by a subscribing witness, or in any other- way by which such desire might be made to appear, provided that it appear that the request was the tree and intelligent act of the testator.

One of the grounds upon which the contestant questions the validity of the instrument offered as a will, is that the testator was unduly influenced in making the same.

Influence is proper Or improper. Proper influence is that which one person gains over another by acts of kindness and a¡tention, and correct conduct. 3 Serg. & Rawle., 269. Improper influence is that dominion acquired by any person over a mind of sanity for general purposes, and of sufficient soundness and discretion to regulate his affair's in general, which prevents the exercise of his discretion and destroys his free will.— 1 Cox's Cas., 355. When the former is used to induce a testator to make a will, it wiil not vitiate it; but when the latter is the moving cause it will 1 Hagg. R., 581; 2 Hagg. 142; 5 Serg. & R., 207; 13 Id., 323; 4 Greenl., 220; 1 Paige, 171; 1 Dow. & Cl., 440; 1 Speers, 93. And as to whether any such influence was brought to bear upon the mind of the testator as to prevent the exercise of his discretion and to destroy his free will, is a question for yon to determine from all the testimony in the ease. This, like the question of sanity is to be considered as relates to the mental condition of the testator.

As touching the question of the validity of'the instrument offered as a will,something has been said in the argument about the provision relative to the Allegan lands. Upon this point I advise you as requested:

“ If the fact be that in this case John Maginnis', the son of James, was dead, leaving a son by the same name, who was living at the time of the testhtor’s making his will, and there was a son of Jame,s Maginnis by the name of James Maginnis, and a brother of said elder James, by the name of Henry, then liv. ing, but no son of that name, then the jury are instructed, that such facts would not make the devise of the Allegan lands void, and such incongruities existing in the will are only important on probate thereof, upon the question of mental capacity.”

- In this case we have listened not qnly to the testimony of those who were present during Patterson’s illness, and at the time the will was made, but to the testimony of persons denominated as experts in the treatment of disease. These gentlemen have testified as to their opinions predicated upon certain hypothetical or assumed state of facts. To render this testimony of any value, you must find that the assumed facts are real. Upon this point our Supreme Court say: “ And as a collection or state of facts assumed, whether few or many, constitute in the aggregate, the basis on which the opinion is asked'? if it does not appear that the opinion would be the same, with any of those facts omitted, it necessarily follows, that, if the jury should negative or fail to find any one of the assumed facts, the opinion expressed cannot be treated as evidence, but must be rejected by the jury.”

If therefore you should find that in any of the hypothetical, cases proposed to the physicians for their opinion upon the state of facts therein assumed, any material fact or facts are embodied, which are not proved by a preponderance of evidence to have existed in this case, you should entirely disregard and lay out of the case any opinions based by such physicians upon such hypothetical statement, unless it has further been proved that such opinions would have been the same in the absence of such fact.

From this it follows that if the hypothetical statement or statements of iacts assumed in the questions put to the physicians as the basis of their opinions did not include all ot the facts necessary to describe the actual condition of the testator, then such opinions must be disregarded and laid out ot the case, unless it has ako been proved that the opinions would have been the same if such additional'facts'had been excluded.

The object of this testimony of experts isto bring to bear scientific knowledge as to the natural, proximate effects upon any or all of the intellectual powers resulting from either .deranged physical organic functions, or the nature of the disease; and the authorities recognke the law to be that such evidence may tend to throw some light upon the mental sfalus and capacity of the testator. You are to give such weight to this class of testimony as you deem it intrinsically demands. In short, you are, in this case, to weigh it by the effect which it produces on your mind, when opposed to the testimony of these who saw the testatcr When the will was executed, and during his illness.

I now call your attention to some of the rules pertaining to the evidence by which you are to be governed; and advise you that if you find that there is a preponderance of the evidence in the case in favor of all the conditions requisite to the making of a will, then the jury are instructed that they should' retnrn a verdict in its favor.; and by preponderance of evidence is not meant preponderance in numbers of the means by which the -evidence is furnished, but in their efficacy in producing belief.

As to statements made by parties after the execution-of the will, I advise you that you are not‘to take any declaration, admission or statement which the jury may find to have been made by any person since the death of Patterson as proof of any fact therein stated or implied, and this is upon the ground that- any such declaration, admission 'or statement is not admissible proof of any such fact.

There appears to be some conflict in the testimony. It is your duty, if possible, to reconcile this discrepancy; and in your endeavors so to do you will take into consideration the relative situation of the witnesses at the time of the occurrence about which they testify, and you will thus consider,their means of knowledge. If, upon a careful and critical examination you find that you cannot believe all the witnesses; if you are satisfied that it is'impossible to reconcile their testimony, you will enquire who tells the truth and who is mistaken, or who testifies falsely. In determining this question you will bring to bear the knowledge of human nature and character, which you have learned from years of observation and intercourse with these with whom you have been associated and brought into contact. You will consider the appearance of the witnesses on the stand,.their apparent anxiety or indifference. You will also consider the interest of the witnesses in the ease, their relationship to the parties — whether from all the circumstances you believe any witness was influenced by either party in giving his testimony.

)By a provision of our statute the parties to the suit are permitted to testify in their own behalf. While it is not your business to question the policy oi this, law, it is not improper in weighing their testimony to consider their interest in the matter about which they testify.

Where there is clearly a conflict in the testimony of witnesses you will, in your efforts to arrive at the truth,sift such testimony and determine what and how much of it appears reasonable and probable in view of the circumstances. You are to apply the same tests in the jury room in determining the truth, that you would in your every day intercourse with men. There is no arbitrary rule of evidence which compels a jury to acquiesce in and accept as truth that which appears immaterial, improbable, and from its nature impossible. To illustrate, A.swears he saw B strike C with a walking stick with intent to break C’s arm. Now there is nothing unreasonable in A’s testimony that he saw B strike C, but when he speaks of B’s (intent he assumes to substitute his own inference for knowledge, and the jury would not be bound to accept such inference as establishing the fact. So, if .a witness testifies that two and two make five — that the sun (so to speak) rises in the west instead of in the cast — that on a very dark night,without any light, it is as easy to recognize and identify a person across the street as at noon-day j oi if a witness testily that the chairs upon which you sit are made of iron; that, you have but one arm each — this and like tostimony which contradicts the evidence of your own senses you'would be bound to reject.

There are two ways of impeaching.the credit of witnesses: By showing that’ tne reputation of the witness for truth is bad in the community in which he lives, or by showing that the witness has made statements out of Court or at-some other time, under oath or otherwise, contrary to what he states on the stand. The' object of all impeaching testimony is to show that the -witness who is sought to be impeached.is unworthy of belief. •

It was formerly held to be the law that if it was evident that a witness testifies falsely in one material particular,the jury are to disregard the testimony altogether, only so far as it is corroborrated by others. íhe inclination of the Courts, however, latterly, is to hold that the whqle question as to the credit of the witness should go to the jury, assuming that their knowledge of human character is a Safer guide than any arbitrary rule of law upon that point. Jurors sometimes fall into an error in supposing that they are to determine a case, by-applying a mathematical rule to testimony. The language of Chief Justice Pennington upon this point is so pertinent, that I quote from that learned jurist, the following:

“ The circumstances of the case, the probable or improbable nature of the-facts detailed, the character of the witness, the .manner Of his giving testimony, must all be taken into consideration, and Ought, after being duly weighed, to carry conviction to the mind cf the jury before they give it an effect by their verdict. It is common for jurymeni to say, in excuse for giving a wrong verdict, that they believed it was Wrong, but how could they do otherwise. The facts were sworn to, it Was the fault of the witness, not theirs. This prac* tiee of jurors’ loading on the witness their own sins, and making him a scape goat for the whole is grossly improper. It is true that ju-rors cannot, nor ought ¿they to' substitute in the place of proof their own fancies, conjectures or preposessions, much less to suffer- their passions, inclinations or biases to come in aid qf proof, but are to govern-themselves bv the testimony given in the cause. But should a witness relate a fact, which, from its improbable nature, or from the badness of the character of the witness, taken together- with -other circumstances in the cause, on due consideration, does' not carry a belief of the fact home to the minds of the jury, but on the other hand, they believe that what the witness has related is false; in that case what he has said is no evidence to them, and they are not bound to give .any weight to it j but on the esntrary, if they act upon it, or rather make up their verdict on it, such conduct is u departure from their duty, and-little short of a violation of their ■ oaths.”

Take the case, Gentlemen, and apply to it the rules of law as announced by the Court, and under the solemnity of your oaths render such a verdict as the testimony and law dictates.

Your verdict will be in one of the following forms:

The jury find that the instrument propounded is the last will and testament' of Thomas Patterson, deceased,, or,

The jury find that the instrument propounded is mot the last will- and testament of Thomas Patterson, deceased.

Ycrdict against sustaining the will-


source: Caselaw Access Project

author: Graves, J.

license: Public Domain

text:
    Gibbs vs. Linabury.
    Where a person is induced through fraud, to sign an entirely different instrument from what he intended, such instrument is to he treated as a forged instrument, and ns creating no liability against the signer.
    Error to- Oakland Circuit.
   Opinion by

Graves, J.

Linabury sued Gibbs before a Justice and declared upon the following note :

$120. Avon, Nov. 3,1869.

On or before the first day of August, 1870, for value received, I promise to pay to.Clark and Brooks, or bearer, one hundred and twenty dollars, with.use, payable at First National Bank, at Pontiac.

GRAHAM GIBBS.

Defendant pleaded the general issue and denied the execution of the note. On the trial in the Circuit, plaintiff- first called Gibbs to prove the signature, and he stated the signature resembled his handwriting, but he could not swear it was his.

Plaintiff secured the note before maturity and paid a valuable consideration for it. Defendant testified that November 3, 1869, a stranger named Brooks came to him and proposed to him to become an agent for a hay fork. Finally, defendant agreed to take the agency, and at his house he, Brooks, and an associate of the latter executed some papers. It was getting dark when Brooks presented these papers, one of which defendant examined'. The third,Brooks pretended to read to him, and when defendant asked what the “$120” contained in it meant, Brooks explained that it was to show how much was going to manufacturers after a certain , number of forks’were sold. The defendant, whose eyesight was bad, signed the three papers, it being then so dark that he could not read their contents or even his own signature, and Brooks went away, taking two of the papers and leaving the other. Brooks left a fork, and the paper left was a commission authorizing the defendant to act as agent of the forks. The latter was ignorant of signing any note, and if the paper produced in evidence was his note, it was obtained under the oircumstances mentioned.

The Court directed the jury that if Brooks obtained the signature of .the defendant as claimed by the latter, the latter - supposing, he was signing a contract and not a note, and deliverod the paper to Brooks, it made no difference whether the paper so signed was at' the time a blank note or filled up as a note. > If the handwriting of th'e.signature was that of the defendant, and the plaintiff was an innocent purchaser for a valuable consideration, before maturity, the plaintiff was entitled to recover. The requests of the' defendant, which were in accordance with the cases of Foster vs. McKinnon and Whitney vs. Snyder, were refused.

In this case the defendant intended to deliver a paper with- liis name upon it, but not a negotioable note by any means. Two cases have been decided, above referred to, in which defenses similar to the one set up here have been sustained. The first was an English ease decided'in 1869, while the other was decided a few months since by the Supreme Court of New York. The doctrine of the English and the New York cases was followed, and the judgment of the Circuit Court was reversed with cost».

[See the cases of Clay vs. Schwab, 1 Mich. Nisi Prius, 168, and Longwell vs. Day, Id., 286.—Rep.]


author: Campbell, C. J.

text:
    The People ex. rel. Eli Royce vs. Daniel Goodwin.
    Circuit Judges need not, necessarily, be residents erf tlie Circuits for which they are elected.

      Quo War rail to.

   Opinion by

Campbell, C. J.

This was a proceeding to deter.

mine the right of Hon. Daniel Goodwin to exercise the functions of Circuit Judge of the Eleventh Judicial Circuit. Having pleaded' his election and the determination by the Board of Canvasers in his favor, the Attorney General filed several replications, presenting a number of questions supposed to be material. These were demurred to except one, 'that offered an issue to the' country on the question whether the respondent received the largest number of votes.

The principal question was whether the Constitution requires a Circuit Judge to reside in his Circuit. The provision relied on is section 22 of Art. 6, which declares that “ when a Judge shall remove beyond the limits of the jurisdiction for which he was elected, or. a Justice of the Peace from.the township in which he was elected, or by a change in the boundaries of such township shall be placed without the same, they shall be deemed to have vacated their respective offices.” By section seven it is provided that no alteration or increase of Circuits shall have the effect to remove a Judge from office.

Section 22 plainly declares that a Judge who resides in the Circuit shall, if he remove from it, vacate his office, but it does not in terms require him to reside within it, or prevent the election of one who resides elsewhere, and section seven contemplates the possibility of legislation which may put his residence outside of it.

In some offices the necessity of residence arises from their very nature, and if the Constitution were silent upon this subject, only legislative interposition, and possibly not even that, could do away 'With the necessity of residence. Such are town officers and the ministerial officers of counties. The Constitution says nothing concern-' ing most of .these officers, and only provides for a special emergency concerning Justices. Probate ¡fudges are included in the prohibition of section 22, and if that implies the necessity of residence, then no farther provision would be necessary to compel it. But by section 13 of article 6, it is declared concerning each Judge of Probate, that he shall be eleeted by the electors of the county in which he resides,” So by section 4 of article 5, Senators and Representatives are required to be qualified electors in the respective Bounties and districts which they represent. At the eommon law, the electors of any precinct might choose their representatives at large. It seems dear that in eases which were doubtful it was deemed necessary to declare distinctly that incumbents should be residents There being no such declaration in regard to Circuit Judgesj the restriction, if it exists, must be found in the necessary incidents of the office or in. some binding usage.

The Judges, when the Constitution was adopted, performed the «une functio, s which had before devolved upon the Judges of the Supreme Court, who were elected or appointed at large. Their dutios were performed partly in the Circuit and partly in the Supreme Courts which took them away from their Circuits. They could sit in any other Circuit -when requested. They were not confined to locality in performing their duties, nor was their juridiction confined to local interests.

A consideration of the functions of Judges renders their independence of local affairs still more obvious. The judiciary is one of three co-ordinate branches of tho government, and represents simply the law by which the people have agreed to bind themselves. Its services are all performed on behalf of the State, the sovereignty from which all law emanates. The Judges receive their salary from the State Treasury, and the only object in having local courts is to bring justice home to the people. And, as any Judge may lawfully sit anywhere, there is nothing whatever to make it important that he should reside in one place rather than another. By both the civil and the English law no Judge was allowed to sit in his own home or «ounty at all to try criminal or civil cases. It is only during the present century that the restriction has been removed. As a matter of construction it was therefore concluded that the Constitution does not require residence.

It was further held that the Constitution does not permit the regularity of elections to the more important public offices to he tried by the courts. It is provided that in all cases where by the Constitution or by statute, the result is to be determined by the Board of State Canvassers, there shall be no judicial inquiry be yond their decision. It declares that “ when the determination of the Board of State Canvassers is contested, the Legislature in joint convention, shall decide which person is elected.” This provision was doubtless suggested by the difficulty of conducting an inquiry of this kind before the courts, and probably to discourage litigation in matters of election.

The result of these conclusions is that all the replications, except that relating to the residence, tender issues which are immaterial, because their determination cannot in any event change the .Canvassers’ certificate, which is in this controversy conclusive proof of the respondent’s title to office. As the replications take no issue upon the existence of their determination, but distinctly admit it, and as there is no material issue of any kind tendered, the respondent is entitled to final judgment on the demurrer. He was also awarded costs against the relator.


text:
    Edwin R. Seely vs. Henry Howard.
    Description of la nils in declaration iu ejectments
    Error to St. Clair Circuit.
   Opinion by

Graves, J.

Seely brought ejectment, and in his declaration describes the premises as “ the following real estate or premises situated in the city of Port Huron, county of St. Clair, and being known and described as the undivided eighth part of the lower West Brook farm, (so called), in section 15, town 6 north, range 17 east, lately conveyed by Frederick H. Vandenburgh, trustee; to said Howard by deed dated April 15 1870, and recorded in liber 30, page 201, of deeds, in the office of the Register of. Deeds for said county.” Howard demurred to the declaration, and the Court awarded judgment in his favor. Seely, now asks a review of this judgment. The main grounds of the demurrer are those which raise the question whether the premises are described with sufficient certainty.

Held, That the description was sufficiently precise without reference to the Vandenburgh deed. The county and city are given, with the name of the tract of land, and it is clearly dis' tinguished 'from all other pieces of land. Writers and the authorities bold this description sufficient. Inasmuch as the description was held sufficient, the reference to the Vandenburgh deed was deemed immaterial in this relation.

Judgment reversed and a new trial ordered.


author: Campbell, Ch. J.

text:
    William H. Boothroyd vs. Joseph Engles.
    Error to St. Clair Circuit.
   Opinion-by

Campbell, Ch. J.

The only question waswhethei the record of a. deed purporting to be signed by Harrison Sherman, and certified to have been acknowledged by Hiram, Sherman, (the latter name having been inserted in the beginning of the deed as that, of the grantor,) could be received in evidence as the conveyance of Hiram Sherman, the original deed not being shown.

Our statutes now require every deed to be signed and scaled by the person from whom the estate or interest is intended to pass, as Well as acknowledged by the parson executing it. Thp signing can not be dispensed with, and no one but the signer ean be regarded as the grantor. The presumption of law always is that a person uses his real name, and, in the absence of proof, a deed signed by Harrison and acknowledged by Hiram, is signed and acknowledged by different persons. A person using an alias might, under some circumstances be estopped from denying the alias, But no such ease is.shown to exist here.

The judgment was correct and is affirmed with costs.


text:
    Dexter A. Ballou vs. Wilbur H. Hill et. al.

    Suit was brought against two persona upon an award against them, the declaration showing, the submission and award to have been joint. Tbe suit as against one of them was discontinued, without any amendment being made to the declaration, though it was ordered that “the pleadings and proceedings be amended iuaccordance with such discontinuance.’’ Hdd, That in such case the discontinuance as to one defendant worked a discontinuance as to both.
    When on amendment Is ordered or permitted, and is of such a nature that the record furnishes upon its face all the datafor applying it, it may be considered as made, though no verbal changes are made in the pleadings, which are then to be read as if they had been actually amended.
    Error to Bay Circuit.
   Opinion by

Campbell, Ch. J.

Suit was brought upon an award against Dexter A. Ballou and Oren A. Ballou, alleged in the declaration to have been made on their joint submission.— In conseqence of certain questions raised on the trial/ a discontinuance was allowed to be, and was entered before the judgment as to Oren A. Ballou, and judgment was rendered against Dexter A. Ballou alone,, without any further action than thereeital in the order, “ that the proceedings and pleadings in this ca bese and the same are hereby amended in conformity, with such discontinuance, and that said suit proceed against Dexter A. Ballou, as though it had originally been commenced against him alone.

jffeW, That when an amendment is ordered or permitted, and is of such a nature that the record furnishes upon its face all the data for applying it, it may be considered as made, though no verbal changes are made in the pleadings, which are then to be read as if they had been,actually amended.

If, however, Dexter A. Ballou had been sued alone upon such a cause cf action as is set lorth in the declaration, the suit could not be maintained against him. The award is stated'in the declaration to have been a joint one, made upon a joint submission. No sole action could be maintained upon such award, and a discontinuance against one defendant, leaving this joint award as the alleged cause of action, would be as fatal to the case as a discontinuance against both. There is nothing in the record from which any one can legally infer in what way the declaration should be amended, and this being so, the amendment cannot be inferred. Until made,, the suit appears of record asa joint suit incapable of severance, and the discontinuance not being followed up by any amendment in fact, practically ended the case and rendered any judgment erroneous. The judgment cannot be upheld upon the declaration.

Judgment below reversed with costs of both courts.


author: Graves, J.—

text:
    Frederick Spicer vs. Jared A. Smith.
    Where suit Is brought by the endorsee of a note •which had been endorsed by an agent of the payee, in behalf of the payee, it is incumbent on the plaintiff to prove the authority of the agont, tho endorsement and the ownership of the note.
    Error to Eaton Circuit.
   Opinion by

Graves, J.—

This was assumpsit, in which Smith declared against Spicer on the common counts, and set forth the Copy ot a note which was to be given in evidence. The following is a copy of the note :

“ Post-office address, Eaton Rapids, county of Eaton, State of Michigan, Town of Hamlin, May 12, 1869.

$150.

Five months after date I promise to pay to the order of Perkins & Chilson, one hundred and fifty dollars for value received with use.

(Stamp.) Signed, FREDERICK SPICER.”

O.n the back of the note was the following endorsement: “ Pay to the .order of Jared A. Smith. Perkins & Chilson, by H. H. Blair, agent.”

The general issue having been pleaded, the parties proceeded to trial before a jury, when Smith gave evidence tending to show that the note was purchased before its maturity by him through his agent, for value,'in the belief that there was no defence to it, and without notice of any objection to its validity. No affidavit having been made denying the execution of the note, it was then offered in evidence, when Spicer's counsel opposed its admission on the ground, first, that the endorsement by the payees had not been proved, and, second, because the authority of the agent by whom the endorsement purported to have been made had not been shown. The Court overruled the objection and admitted the note.

It was claimed for defendant in error that no proof of the endorsement was required, because neither the execution of such endorsement or the authority of Blair had been denied upon plea or upon oath, and reference was made to sections 3,714 and 3,767 Compiled Laics, and also to Rule 79 of. the Circuit Court.

Held, That the statutes cited have no application to cases originating in the Circuit Court, and if they had, they would furnish no support to the position taken. In this case the endorsee was not a party, nor was the endorsement as a ground of liability in any way involved. If the plaintiff had set forth his cause of action specially, he must have alleged the making of the note and its transfer to himself and must have proved each in the absence of any rule excusing it. By allowing the note to be given in evidence under the money counts the statute has not made the proof of these facts unnecessary. The rule, however, has provided that as against the alleged maker in a suit by the endorsee, payee or holder, the plaintiff shall not be put 'to proof of the execution of the instrument unless it is denied on oath, but the necessity for proving the title of the plaintiff through an alleged endorsement is neither removed or lessened. In this case the defendant did not deny the making of the note. But the plaintiff’s title was likewise in. issue and, as the rule had no relation to that, it was incumbent on the plaintiff to prove it. In this case it was incumbent upon the plaintiff to prove that the endorsement was made by Blair' and' that he had authority, and the admission of the note without evidence of plaintiff’s title was error. Judgment reversed with costs, and a new trial ordered.


author: Christiañcy J.

text:
    Fractional School District No. 4. of Macomb and Chesterfield vs. Charles A. Mallory.
    Order of School Directors upon Treasurer hold void, not having been drawn upon Assessor and countersigned by Moderator.
    Error to Macomb Circuit.
   Opinion by

Christiañcy J.

Mallory brought assumpsit in a Justice’s Court against the district on the following'órder:,

“ Treasurer of the Township of Macomb, County of Macomb :
On'the first day of February, 1866, pay Adams, Blackman & Lyon, or bearer, the sum of thirty-three dollars out of the expense fund belonging to District No. 4, fractional townships of Macomb and Chesterfield, for teacher’s daily register, school district record, and other school blanks purchased by the undersigned for the use of Said district, with use at ten per cent, from date until paid.
WILLIAM GAMBEE, Director.
Countersigned,
LANCEY WESTON, Moderator.”

The funds in^tke hands of the Township Treasurer, upon which the order was drawn, were raised by tax forthe district and collected by the Treasurer. The defendant on the trial before the Justice,objected to the reception of the order, but the objection was overruled and the'plaintiff recovered judgment for the amount of the 'order, with interest and costs. The judgment was removed to the Circuit aud affirmed. Thence it was taken to the Supreme Court.

Held, That the order was void upon its face. The Director had no power to draw any order on the township Treasurer for any money of the district in his hands payable to any*one but the district Assessor, who is the disbursing officer, of the district. Debts of and claims against the district (like that indicated by this order,) are to be paid by orders drawn by the director upon the Assessor and couutérsigned by the Moderator. C. L., Secs. 2272, 2275 and 2296.— These sections were in force when this question came up and the ' amendmentóf 1869, (p. 183., note.) renders the matter still more clear.

Judgment below reversed, and defendant in error to recover costs in all the courts.


author: Campbell, C. J-

text:
    The People vs. Gaige.
    Vliore a person injured astruoture of plank, in the bank of a river in aplace where the bank had been washed away by a freshet, such structure not extending across- the river, or the natural current thereof, Held, that such person is not liable under the provisions of the statute, C. £.,§5790, against injuring and distroying dams, reservoirs, eauals, &c. The structure referred to is not to be treated as a dam within the meaning of this statute.
    Error to Hillsdale Circuit.
   Opinion bp

Campbell, C. J-

This was an information against die defendant for a supposed offense against the provisions of section 5790 of the Compiled Laws. The section provides for the punishment of any'person who shall wilfully and maliciously break down, injure remove or destroy any dam, reservoir, canal or trench,' or any of the wheels or machinery of any mill, or shall wilfully or wrantonly without color of right draw off the water contained in any mill pond, reservoir .canal or. trench* The information charged the defendant in different counts with having wilfully and maliciously broken down, injured removéd and destroyed the dam of a. certain water mill of one Luther Tyler; in the township of Scipio, and with having wantonly drawn off the water contained in the mill pond of a certain water mill in the possession of said Tyler in Scipio aforesaid.

The Circuit Judge returned that there was no evidence to sustain the latter charge, but a general verdict seems to have bóen found on all the counts. The bill of exceptions showed that counsel for tho people gave evidence tending to show that defendant about October 11.1869, injureda structure of plank,built in the hank upon the Nal«mazo» River, in a place where the bank bad been carried away by former freshets or inundations, and that the said structure was not erected across the channel. The defence requested the Cburt to charge the jury “ that the jury cannot convict the defendant unless, they find from the evidence that the structure of plank destroyed or injured was placed across the current of the original and natural current of the river, to obstruct or prevent the natural flow of the water and along said natural channel, and that they must acquit the defendant if they find from the evidence that such planks were placed in the bank of the river to retain and fill up an opening in such bank made by former freshets and inundations and to prevent the same results from future freshets or inundations.” This was refused.

Held, That the request should have been given, as the structure indicated was not a dam within the meaning of the statute. This structure was simply built to repair a defect in the liver bank, and it was not even a part of a dam. The verdict was set aside and a nolle prosequi ordered entered as to the defennant, as be was entitled to acquittal on all the counts.


text:
    Oliver H. P. Green vs. William Brookins.
    G Induced B to subscribo for shares in a patent right, and to give his note for $500, under tb promise that G wonld find a man to take the shares and pay the amount of the note therefor. G failed to find a party to take the shares. B paid the notes, with the knowledge of G, and brought suty against G. G contended that the promise was void, under the statute that declares that every special promise to answar for the debt, default, &c., of another shall be void unless in writing; and sécond that it was void undor the provisions of the statute respecting the sale of goods for the price of $50 or more. ¿ZéfcZ, That the promise was not within either of these statutes. Held also, That though the payment of the note was voluntary, G’s approval of such payment, was an admission that there was no defense to the note.

      X general objection to the charge of the Court doesnot come within the rule requiring assignments ef orror tobe special.
    Error to Oakland Circuit.
   Opinion by

Graves, J.

Brookins sued Green to recover damaages for breach of a verbal contract. The entire evidence was given under the two special 'counts The first stated that Green claimed r,o have an interest in a hay fork patent, and was about to organize it company for the purpose of dealing in the fork and in rights under the patent, and promised Brookins that in consideration that he would become a member of the company, and take two shares at $250 each, and iu payment therefor give his promissory note, such shares should not cost him anything, and that he, (Green,) as soon as the company should be organized would find a man who would ¡biiy the shares and take them off Brookins’ hands and pay him the amount of the note, and that Brookins should not be put to any ■cost or expense on account of the shares -or the note. It is then averred that Brookins, confiding in Green’s promise, did subscribe for shares, gave his note for $500, etc., and that Green refused to find a man to take the shares and pay the amount of the note, and that Brookins had been required to pay it, and had so done, etc.— The second special count was substantially like the first, except that the agreement on the part of Green was laid as a promise to Brook-ins to indemnify and save him harmless from all damages on account of the note, if he should give it.

The requests of plaintiff raise two questions under the statute of frauds. Plaintiff insists, first, that the contract- between the parties being wholly verbal, was void under that provision that declares every special promise to answer for the debt, default, or misdoing of another person, shall be void unless in writing; and second, that it was also void under the provision respecting the sale of “ goods, wares and merchandise for the price of $50 or more.” The promise iu this case, by Green, as alleged in the declaration, was not collateral, not an undertaking in relation to the doing or misdoing of any third person. It was a promise by Green to Brookins to find some one to take his place as member of the company, and to save Brookins from expense and damage in consequence of becoming shareholder, giving his note, etc.

Held, That a promise of that description is not within the statute

Held also, That the agreement by which Green was to find a man to take stock to be thereafter credited, in a company to be thereafter organized, was not an agreement on the part of Green to buy goods, wares or merchandise, within the meaning of the statute.

The sixth error raises the objection that this payment of the note, or part thereof by Brookins'was voluntary, and, therefore, not evidence of. damage under the agreement of Green to indemnify him.

Held, That this position is rendered "lintenable by the circumstance that the note was taken up by Brookins with the knowledge and approbation of Green. When Green approved of the payment ■ he virtually admitted to Brookins that there was no ground for refusing, and if there was none, he had no defense on the ground of payment without coercion.

There was a general objection to the charge of the Court to the jury, but without, specifying in, what particulars it was objectionable.

Held, That this assignment does not corns within the pule which requires every assignment of érror to be .Special j furthermore, that the advice to the jury was qhite as favorable to the plaintiff as the law of the case would justify, and as there are no errors in the same, the judgment of the Circuit Court must be affirmed with costs.


author: Upson, J.

text:
    The People, ex rel., Wm. H. Green vs. The Highway Commissioners of the Township of Coldwater.
    Costs on tbe decision of an. application for a mandamus aftcran order to show causa has bfeen issued, ánd a showing made in answer thereto by affidavits, are taxed os on a motion" and’notafl in ordinary suite at law in favor of the prevailing parties,
    2. The ofder to show cause is answered by affidavits, and when heardon sack answer the proceedings aro treated and considered prior to the is^uingof the writ of mandamus as a motion or an application for the issuing of the writ, and under Act No. 28, Laws of 1869; page ■S3, costs in such proceedings ore to be awarded as in cases of special motion.

      Branch Circuit,

      February, 1871,
    Motion for re-taxation of costs.
    Upon the application of the relator in this case an order to show cause had been issued to the Commissioners of Highways, who had answered the same by affidavits, and on the hearing, a motion for a mandamus had been denied. The Commissioners, however, claimed that as in the order denying the motion, timo had first been given to the relator to traverso the facts set up in the answer or affidavits, if he saw fit, so as to tender an issue of fact for trial, and that as the relator had elected not to do so, the attorney for the Commissioners had formally entered his default on the expiration of the time, making the order denying the motion absolute, with costs, and therefore they were entitled to tax under Act No 28, Laws of 1869, page 32, costs as in a judgment taken by default and paid accordingly, included $15 in their bill of costs under that head. The relator objected to the taxation.of this item, and appealing therefrom moves for a retaxation.

      Shipman & Lovcridge and C. B. Pratt, Attorneys for Relator.

      B. T. N. Wilson, Attorney for Commissioners,
   By the Court,

Upson, J.

Applications for a mandamus in which a rule or order to 'show cause has been granted and a hearing had on answef made to such order by affidavits, have usually been considered and treated as motions. 1 Doug. Mich. R., 302, 319, 417, 434; 2 Id., 121; 1 Mich., 134, 359; 2 Id., 188, 192; 3 Id., 427; 4 Id., 187; 9 Id., 134, 141, 327, 328; 11 Id., 111, 222; 12 Id., 171, 191; 16 Id., 204; 17 Id., 67, 159, 338, 341; 18 Id., 247, 254, 338; 19 Id., 203, 351.

And costs on such hearings in the Supreme Court are somewhat discretionary, and are given or denied as on motions. In the following eases costs weré denied, viz: 2 Mich., 188; 5 Id.,223; 17 Id., 338; 19 Id., 470. In the following cases costs-were allowed, viz: 11 Mich., 60,222; 15 Id., 156; 17 Id., 260; 18 Id., 247; 19 Id., 203, 296.

The order in granting costs also usually specifies or fixes the amount, notwithstanding Rule, 48 of the Supreme- Court, in regard to the amount of costs to be' allowed to the “ prevailing party.” 15 Mich., 155; 18 Id., 247.

In each of the caseg.last cited the Court allowed but $10 costs, although Rule 48 of said Court allows “ in eases disposed of upon argument a counsel fee of $30.” Subh applications for a mandamus were evidently not considered as included in that rule, although in 11 Mich., 197, and 19 Id., 11, they are considered calendar eases.

In the case in 15 Mich., 156 a like opportunity was also given to the respondents to have an issue of fact made up for trial by jury,' which they had declined to accept. See an instance where such an issue of .fact was ordered to be sent down to the Circuit for trial, in 17 Mich., 159.

Where such a trial is had, doubtless a different rule as to costs wohld obtain in the case. Under the circumstances of this caso it must be considered a special motion, and thecost-s awarded on it as in cases of motion. The Act, No. 28, -of i860, page -32, provides-that •“ in all cases of special motion, such sum shall be awarded to either party as the Court in view of the circumstances shall deem- just,” which provision in its terms seems applicable here, if that act is to regulate und govern in these cases. Let the order denying' the application for mandamus with costs, he .so amended as to fix the costs awarded at $10, and the hill of costs he taxed in conformity to such order.


author: Christianoy, J.

text:
    The Atlas Mining Company vs. James R. Johnston.
    It is no ground of error that the Court is more cautious and strict in securing an impartial jury than the law actually requires, and for this purpose the Courts may very properly reject a juror on a ground which would not be strictly sufficient to sustain a challenge for cause.
    Error to Keweenaw Circuit.
   Opinion by

Christianoy, J.

The first three alleged errors relate to the setting aside of two jurors by the Court and'the excusing of a third. After the jurors had been drawn; plaintiff’s counsel asked one of them whether he was a brother to defendant, to which he replied in the affirmative; also whether he had talked with his brother about the case, to which he replied, “ Last night I spoke to him about it, but he would give me no answer.” The Court thereupon set him aside, plaintiff’s counsel not asking it. Another juror was asked by plaintiff’s counsel whether he had any bias or prejudice in favor of either party, to which he replied, “I have formed some opinion,” whereupon the Court, without any objection from either party, set him asido. Another juror called in the place of the latter, stated to th© Court that he did not understand the English language, and the Court,- remarking that from previous intercourse with said ju. ror he knew that he was deaf and did not sufficiently understand the English language, excused him. No challenge,or objection was taken by either party. Defendant’s counsél, however, claims the right to examine all the-above jurors as to their competency, but was prevented by the Court in the manner above stated. Defendant insisted that he was entitled as a matter of right, to have the case tried by the twelve juror* first drawn, and not challenged peremptorily, or challenged for sufficient cause, and the challenge sustained, and that there was not only no challenge, but no sufficient ground for a challenge for cause. He relied upon section 4392, O. L., which provides that the twelve persons who shall appear as their names are drawn and called, and shall he approved as indifferent between the parties shall serve, and shall be the jury to try the cause.”

Meld, That this statute will not bear the construction thus put upon it. It would take from the Court the power to excuse a juror, however urgent the cause. . The first two jurors in this case may he properly said not to have been approved as in different between the parties.) It is no ground of error that the Court is more cautious and strict in securing an impartial jury than the law actually requires, and for this purpose the courts may very properly reject a juror on a ground which would not he strictly sufficient to sustain a challenge for came. As to the juror who did not understand the English language, it would have been highly improper for him to sit in the cause, although unchallenged.


text:
    William C. Burns vs. George P. Kinne.
    1. An affidavit for an attachment under § 4740, Cc<mp.,Zaw8, stated in positivo language the amount of the indebtedness of the 'defendant to the plaintiff, at a certain sum, without using the qualifying words of-tlie statute, “ as near as may be,” Held, sufficient.
    & The affidavit also seated in positive terms file non-residence of five defendant, without usimg the prefatory statement “ that the deponent knows,” or “ tllat the deponent has good reason to believe,.” specified in the statute. Held, sufficient, und that in each particular there was ■o, substantial compliance with the statute.

      Branch Circuit,

      February, 1871
    Motion to quash writ of attachment' and set. aside the proceedings- thereunder, on the grounds :
    1. That in the affidavit tor the attachment the deponent in seating the amount of the indebtedness of the defendant, did’ not in substance or in fact;use the qualifying words,- “ as near as may be,” as prescribed by the statute, § 4743, Comp. Lau-s.,

    2. That the depqnent in swearing to the non-residence of the defendant did not in substance or-, in fact use the qualifying words-, *• that the deponent knows, or has good reason to believe,” &e., as prescribed by the statute. v
    The affidavit .on which the attachment issued is in the words and figures following, viz:
    “ STATE OF MICHIGAN,'} County of Branch. j '
    William C. Burns, being dulysworn, says that he resides at t]ic city of Coldwater, in said county, that George P. Kinn'e is indebted to him, the said William C. Burns, in the sum of four thousand dollars and interest thereon, from the 21st day of November, A- D. 1870, over and above all legal-set-offs, and that such indebtedness is due and owing upon express contract, and the whole amount thereof is now díte. Deponent further says that the said George P. Kinne is not a resident of this State of Michigan, and does not and has not resided therein for three months immediately preceding, the time of making this affidavit, but that said George P. Kinne has for a long time and still does reside in the- county of Steuben, in the State of New York.
    W. C. BUKNS.
    Subscribed and sworn to before me, this 30th day of December, 1870.
    Francis M, Bisseli,
    Clerk"

      Levi Sprague, Defendant's Attorney for the motion.

      Shipman & Loveridge, Plaintiff s Attorneys.
   By the Court,

Upson, J.

In th^ affidavit for the writ of attachment in this ease, the deponent has sworn directly and positively to the fact and the' amount of indebtedness to him, without using the words, “ as near as may be,” whieh are given in the statute in thi» connection, § 4743, C. L. lie also swears directly and positively to the fact of «the non-residence of the defendant, without, prefacing his statement with the words, “ that the deponent knows,” or that the deponent has good reason to believe,” as prescribed by the same sfcatmte in that connection. It seems to me that the legal effect of the affidavit is the same as, or if possible stronger in its positiveness of statement in each particular, than if the qualifying words insisted upon in the statute had been used.

In each of these particulars, .on an indictment for perjury against the deponent, if it were made to appear that he knew npthing of the matter he so positively swears to, he would be found guilty of perjury even though what he swore to may happen to be true. 2 Russ. on Crimes, 597.

IIe»is allowed by the statute to use the -qualifying or modifying words where Ris own knowledge may be so defective or limited as to require such use. If he swears to the necessary fact or facts unqualifiedly and positively, I se® no impropriety or injustice in holding him to swear to it in his affidavit, on his own knowledge and as correct, he having had the opportunity to qualify it under the statute if not within his knowledge, or if not exactly correci in amount. In the matter of non-residence also, he gives in the affidavit the further fact in support of the allegation, that the defendant'is a resident of the State of New York., On this point the language of the affidavit is almost literally like the one in Dorr vs. Clark, as given in the opinion1 of the Court, 7 Mich. R., 312; which affidavit was held sufficient, although the point there raised is not precisely like the one made here.

In Wilson vs. Arnold, 5 Mich., 104, the Court say, in speaking of the statement in the affidavit’ of the indebtedness, the amount and that it was on contract: “ All these facts must be sworn to positively ; not necessarily in the words of the statute, but in language equivalent to that of the,statute. The other facts to be stated in the affidavit need not be,stated positively, for the Statute itself discriminate s between the facts to be sworn to positively, and those that need not be so sworn to.” See also the ease of Barker vs. Thorn, decided by the Supreme Court, April, 1870.

The affidavit in .this case must be considered a substantial compliance with the statute, and therefore sufficient. Motion denied, with $5 costs.


text:
    William N. Osman vs. Nathaniel Traphagen.
    In July, 1847, A and B, as administrators of an estate, are licensed to sell two parcels of land A gave the bond and took the oath required by law, but B declined to qualify. A sold th» two parcels together, June 17,1848, and made his report of sale which was confirmed June 4,1£49, A executed a d*ed to the purchaser and received the last of th® purvtwifc money. Subsequently both adm inistrators filed thoir accounts which were allowed. In a suit in ejectment by the heir of decedent against one holding by mesne conveyances un dor the administrator's sale, Held,
    1. The omission to sell in parcels was a mere irregularity, not to be attacked collaterally.
    2. The statute does notrequire the purchase money to be paid before the deed is given. The administrator may give credit for not more than three years on three-fourths ®f the purchase money.
    U. The omisBiou to give a deed within one year from the date of order of sale cannot be urged agaiust the title.
    4, Thenon-joiuder of the administrator, who failed to qualify, iu the sale nml conveyance cun not be urged against the fcU-lo.
    Error to Oakland Circuit.
   Opinion by

Graves, J.

This was an action of ejectment by Traphagen to recover two separate parcels of laud iu Oakland County. The case was tried without a jury, and the facts found that in September, 1846, Nathaniel Traphagen, the father of defendant, died seized of the land, leaving Mary Traphagen, his widow» and the defendant, his son and only heir. Letters of administration were issued to the widow and to Abraham A. Traphagen, the father, of decedent, who regularly qualified and entered upon the trust, and continued iu office until the estate was settled. The land in question was appraised at $400, and demands allowed by the Judge of Probate, acting as commissioner, against the estate to $477 61.— After deducting the authorized allowances no personal property remained to pay the debts, and the administratrix and administrator applied in November, 1847, for a license to sell the real estate, which was duly granted in July of that year, and which directed the order of sale of the'several parcels. The administratrix refused to proceed any firther in the matter of sale after the obtaiument o.f the license, whereupon the administrator went on and gave the required bond and took the oath, advertised the premises to be sold at a specified and proper time and place, and sold the two parcels at one bid, subject to the widow’s right of dower, to Margaret A. Miller for $225. This sale occurred June 17, 1848, the widow theu residing on the premises and by her attorney forbidding the sale — Two days thereafter the Judge of Probate duly confirmed the sale, and on the 4th of June, 1849, the administrator conveyed the premises to the purchaser, and received the last of the consideration money. The administrator and administratrix filed their accounts with the Judge of Probate, by whom they were allowed, Suhaequently Margaret A. Miller, the purchaser, and her husband, conveyed the premises by warranty deed to the said Abraham H. Traphagen, who afterward, by like conveyonee, transferred them to plaintiff, he being a purchaser in good faith for valuable consideration, and with no actual knowledge of the alleged facts, and he was in possession, claiming title when and before the suit was commenced.

The Court below, found as a matter of law, that the execution of the deed was defective, because only one of the administrators signed and executed it, wherefore it was a case of defective execution of a power which could not be remedied on the law side of the Court. Judgment was accordingly given for defendant.

The defendant insists that the sale was irregular and void; first, because the sale and conveyance were by only one of the two representatives, when the license was given tp two; second, because two separate and distinct parcels were sold at one bid ; third, because the sum bid was not paid in full before the deed was given ; fourth, because the deed was not delivered within a year from the sale.

Held, That if the two parcels were sold together, the sale was not made void thereby. That fact went no farther by way of impairing the sale than to make it voidable at the instance of someone aggrieved, and in a direct porceeding in the Probate Court or upon appeal. The omission to sell in parcels will be treated as a mere irregularity which cannot be resorted to to invalidate the sale when attacked collaterally.

Held also, That the statute does not reqnire the purchase money to be paid before the deed is given. The administrator is allowed to give credit for not more than three years on three-fourths of the purchase price.

Held further, That the omission to give a deed within a year from the order canriot be urged against the title. That question is settled in Howard vs. Moore, 2 Mich., 226.

Held further, -That the fiou-joinder of the administratrix did not nullify the sale. íáhe never qualified in reference to such sale, and therefore could not act. The sale was that of the administrator, and he was the only person competent to make it. it. was duly confirmed by the Probate Judge, who in such confirmation passed upon the question of its legality.

The judgment must be reversed with costs and a new trial ordered.


text:
    Calista O. Van Slyck vs. Jerome S. Wolcott, Levi Sprague Henry Clark and W. J. Bowen.
    Under \ 4115, of Comp, haws, a motion to reqire tlie plaintiff to file security for costs, made at the thirdjterm after issue joined in the cause, without showing any reason for the delay, .comes too late, and will be refused.
    2. Under the statute, the motion is addressed to the sound discretion of the Court, and when made at such a late day, without giving any special reason therefor, it can hardly be said to “ appear reasonable and proper” to grant it.
    3. Even under \ 4113 requiring non-resident plaintiffs to have all writs and declarations endorsed before service therof, by some sufficient person as security for costs, who is an inhal> ^ ,tant °f the State, if the plaintiff neglect so to do and the defendant do not apply promptly for the security, he will be deemed to have waived it.

      JBranch Circuity

    February, 1871.

      Motion by defendants to require the plaintiff to give security for costs, under § 4115, Comp. Laws. The only ground urged in the affidavit on which the motion was founded was that the plaintiff had not property liable to execution, sufficient to satisfy any execution for costs that might be recovered against her in the action. The action was in'trover, the parties were all residents of the city of .Cold-water, the issue .had been joined in the cause on the 23d of May, 1870; and this was the third term subsequent to the joining of the issue. No reason or explanation was given for not having made the application at an earlier day.

      O. B. Pratt, Plaintiff’s Attorney.

      L. Sprague, Shipman & Lover idgp, Defendafats’ Attorneys
   By the Court,

Upson, J.

The provision in the statute, § 4115, Comp. Laws, authorizing the Court to require a plaintiff to give security for costs in civil actions pending therein, “ when it shall appear reasonable and proper” so to do, was manifestly made for the benefit of defendants, and therefore may be waived by them if they see fit not to call seasonably for its exercise. When the application' is made promptly the motion is still addressed to the sound discretion of the Court, and it must be made to appear i! reasonable and proper” to grant it before the'parties applying can appropriately callupcn the Court to exercise this power under the statutfe. In this case the'parties all reside in this city, are personally known to each other, and are presumed to have had reasonable knowledge of each other’s pe-cuniary circumstances, at least prior to or at the time of joining ifsuo herein, yet they have (Seen fit to wait until the third term subsequent to the joining of issue before making this application, and in their affidavit make no explanation of, and give no reason for the delay. Reasonable diligence in making the application should be re- ■ q aired, and that seems not to hare been exercised in this case.

Even-under §4113, requiring all origiual writs and declarations for the commencement of suits, where the plaintiffs are not inhabitants of the Slate, to be,before the service thereof, indorsed by some sufficient person who is an inhabitant of this State, a paj’ty is required in case of its omission by a plaintiff to take advantage of itin season, and if he. does not he has been adjudged to waive it. Carpenter vs. Aldrich, 3 Met., 58. See also as to the rule in such eases requiring the motion to "be made promptly, and in the first instance, or it is waived, Adams vs. Miller, 12 Ill. 27; and 14 Ill., 71; Edwards vs. Helm, 4 Scam., 143; Robertson vs. The Co. Com'rs, 5 Gilm., 559; Randolph vs. Emerick, 13 Ill., 344; Frasrue vs. Zimmerly, 25 Ill., 202; 2 Ark., 109; 2 Rich., (S. C.,) 10.

The English practice also requires the defendant to make his application promptly- after he knows of the plaintiff’s being abroad, and before he takes any subsequent step in the cause.— Grah. Pr., 507; 2 Chit Archb., 864; 5 B & Ald., 702; 1 D. & R., 348; 1 Moore & Payne, 30. See also cases cited in margin of Comp. Laws, § 4113, by compiler.

The motion in this cause comes-too late, and under all the circumstances it does not “ appear reasonable and proper” to grant it, and it must be denied.


author: Cooley, J.

text:
    Henry Stewart vs. The People.
    The mere fact that a juror entertains tlie belief that the crime with which the respondentia accused has been committed by some one, without any belief as -to the guilt of the accused is not a good ground for challenge..
    Though, as a general rule, after an attempt’to impeach a witness by showing that he has made statements out of Court inconsistent with those sworn to, his testimony cannot he sup. ported by the testimony of witnesses who show that on other occasions his account of the-transaction corresponded with that given in Court, ye t a Circuit Judge is allowed a reason able discretion in such cases, and the exercise of that discretion will not be set aside or in terfored with except in a clear case of abuso.
    The fact that a respondent consents to a sealed verdict does not preclude him from the inquiries that would otherwise be admissible in polling the jury.
    A juror was summoned as a talesman. After verdict, on a motion for a new trial, the question as to this juror’s competency was raised, on the ground that liis name did not appear on the assessment roll. Held, That the statute does not render one incompetent to act as a juror because he is not assessed for taxation.
    Error to Bay Circuit.
   Opinion by

Cooley, J.

A juror named Parmely was chal.enged and the challenge overruled. The challenge was not based upon the ground that he had any bias or prejudice against the prisoner, or that he had formed any opinion, or received any impression of the prisoner’s guilt; but it had for its sole foundation the juror’s belief that the crime charged had been committed by some one else.

Held, That there was no error in this ruling. The rules on this subject must be reasonable. An intelligent jury is as important to a correct conclusion as one free from preconceived impressions; but it would he impossible jn a great many cases to summon twelve men of intelligence who were in the habit of availing themselves of the information on public affairs to be obtained from the usual channels who would at the same time be frée from any opinion regarding the commission, of the offense.

. Held, further, That the objection, that 'the loss of the Chicago .letter, mentioned'in the record was not sufficiently established to admit of the introduction of parol evidence of its contents was not well taken.

The most important.question is whether the letter itself, if produced would have been competent evidence. The writer of it was the principal witness against the prisoner, and had testified to a conversation had with him in Chicago, in which the prisoner made statements in regard to his participation in this offence. On cyoss-examination he was asked whether he did not have a conversation with Edward O’Connor, Robert McKinney and Michael Kilduff, on the morning during the examination of the prisoner before the Justice, in which he told them that the prisoner was not the man with whom he had the conversation at Chicago, and he replied in the negative. He stated, however, that McKinney, Kilduff, and one Hamilton, were his bail on a criminal charge pending against him when Stewart was arrested, and that O’Connor, Kilduff and McKinney came to his house and told him if he gave evidence against Stewart they would throw up his bail. He did give such evidence and was surrendered by his bail as they had threatened. These three persons were then called by the defense, and testified that the witness did say to them at the time inquired about, that the prisoner was not the man with whom he had the conversation in Chicago. In reply to this the prosecution claimed the right to put in evidence the let, ter in question, which was written by the witness in Chicago to his brother in Bay City, after the time of the alleged conversation with the prisoner in Chicago, and which spoke of the prisoner being there and. said, if you want him, send word.” The prosecution also offered to show by the jailer that before the prisoner was arrested, and before there was any talk of arresting him, the witness had made to him the same statement in regard to the conversation at Chicago which he had sworn to in Court. The Circuit Judge admitted this evidence and the defense excepted. The question appgars to he whether, after an an attempt to impeach a witness by showing that he had made out of Court statements inconsistent with those sworn to, his evidence can be supported by the testimony of witnesses, who show that on other occasions his account of the transaction corresponded with that given in Court.

Held, That if it were an established fact that the witness had made the contradictory statement the supporting evidence here offered was not admissible. But in these cases the evidence of contradictory statements is not received until the witness has denied making them, so that an issue is always made between the witness' sought to be impeached and the witnesses impeaching him. The jury, therefore; before they can determine how much the contradictory statements ought to shape the credit of the witnesses • are required first to find from conflicting evidence whether he made them or not, and the question is whether upon an issue like this the evidence like that received by the Court below was admissible. It is impossible to lay down any arbitrary rule applicable to every case; but there are some cases in which the peculiar circumstances would render this piece of evidence important and forcible. The Circuit Judge ought to be allowed a reasonable discretion in such cases; and though such evidence should not generally be received, yet his discretion ought not to be set aside except in a clear case, such as did not exist here.

The prisoner had consented to a sealed verdict, and one having been returned accordingly, he was precluded from the inquiries that would otherwise have been admissible in polling the jury, because of this consent.

Held, That this ruling was erroneous. There is no safe ground for denying to the prisoner the same right to have the jury polled in cases where he consents to have a sealed verdict which is conceded to exist in all other cases. The juror is not estopped by his signature to the sealed verdict from refusing his sssent to the verdict when returned in open court The sealed verdict is assented to only as a matter of convenience, and the prisoner has no reason to understand that he thereby waives any substantial right or deprives himself of the privilege of determining, on the most conclusive evidence, that the verdict the jurors return is one which has the solemn and deliberate assent of all.

Another question raised wras whether the'Circuit Court erred in refusing to grant a new trial on the ground that after the verdict it was discovered that one of the jurors who was summoned as a tales, man, was not named on any of the assessment rolls for the cqqnty either for the year in which the trial took place' or for any preceding year.

Held, That there was no error in such refusal. The statute does not render one incompetent to act as a juror because he is not assessed for taxation. The selection of persons to be returned as jurors is to be made from the assessment rolls; but the qualifications required are only those of electors, and when once returned the names remain in the box until others are required in their places, whether they appear upon the successive assessment rolls or not. Talesmen are to be summoned from the bystanders in court or from the neighboring citizens, and there is no occasion for inquiring whether their names appear upon the assessment rolls or not. .

Judgment below reversed and a new trial ordered.


text:
    Edson Terrill vs. Cassius G. Grove.
    Whore an attachment writ had been quashed on motion of defendant for defective affidavit, be fore any declaration had been filed therein, and before any appearance of the defendant had been entered therein, save for the purpose of the motion, Held, that under Act 28, Laws of 1869, the costs therein provided to be taxed in favor of the prevailing party, under the hea 1 of “ for proceedings^ before notice of trial,” were uot allowable or taxable in such a case.

      Brandi Circuit,

      February, 1871.
    Motion for re-taxation of costs.
    The suit was originally commenc^l by attachment,-and at a previous term of the Court the writ, on motion of the defendant had been quashed and the proceedings thereunder set aside with $5 costs, on the ground of the insufficiency of the. affidavit.
    No declaration-had been filed in the case, áud no appearance entered on the part of the defendant at the- time of the order quashing the writ, save for the purpose of -making the motion. (A report of the case will be found in 2 Nisi Prins, 3.)
    The defendant in taxing the costs, claimed and had entered in*the taxed bill the sum of $10, “ for proceedings before no-: tice of trial,” under Act No. 28, of 1869. The defendant obeeted to this item and now moves for a Te-taxátion.

      C. B. Pratt, Plaintiffs Attorney.

      Shipman & Lover idge, Defendant’s Attorneys.
   By the Court,

Upson, J.

The Act No. 28, of 1869, page 32, in regard to costs, contains among other things this provision, viz: “ In all cases of special motion such sum shall be awarded to either party as the Court in view of the circumstances shall deem just.”

Under this clause the sum of $5 costs was awarded to the defendant at the time the motion to quash was granted.

That motion includes everything that has been done in the case on the part of the defendant. There are no other proceedings in the case for which defendant can claim costs, and there is good ground for insisting that where a defendant has not appeared generally in a cause and no issue has been joined or declaration filed therein, as in this ' case, the clause in the statute providing for taxing a certain amount ®f costs to the prevailing'party, “ for proceedings before notice of trial,” does not apply in favor of such defendant, where on his motion the writ has been quashed. The motion must be granted and the item of $10 objected to must be rejected in the taxation of costs.-


text:
    Ann Hutton, Appellee, vs. Amaziah R. Balch, Appellant.

      Allegan Circuit,
    March, 1871.
    Motion to place the cause on the trial calendar.
   By the Court,

Brown, J.

This case comes into this Court on appeal from J ustice’s Court.

The notice of trial was served upon the attorney of the appellee, whose appearance has been duly entered in this Court and was signed, Balch, Smiley & Balch, attorneys for appellant.”

It is admitted that the appearance of appellant’s attorneys has not been entered in the common rule book.

J. V. Rogers, for Appellee, insists that the motion should bq donied, and cites Bule 100, of this Court, as follpws:

“No attorney shall be deemed to have appeared in any civil cause appealed to this Court from judgments rendered by Justices of the Peace, until such attorney shall have entered his appearance by rule in the common rule book.”

No note of issue has been served on the Clerk as required by § 4348, C. L., and no cause is shown for the neglect.

The non-compliance with the rule and the statute referred to, or either of them, is deemed sufficient reason for denying the motion.


text:
    Milo D. Mattison vs. Chauncey W. Butterfield and Henry Manee.
    Plaintiff brought assumpsit on promissory note for $114, and recovered that sum. Held, that the defendant was entitled to costs.

      Van Buren Circuit,

    1871.
    The plaintiff brought suit on a promissory note. Judgment was rendered for $114, being full amount of the note and interest, and, the full amount established at the trial.
    The defendant moves for judgment for costs.

      S. 3. Blachman, for the motion.

      N. Foster, Contra.

   By the Court,

Brown, J.

The case of Baldy vs. Smith, 1 Mich. Nisi Prius, 156, has been referred to, at the argument, as authority for the defendant. The plaintiff's counsel insists that that case does not warrant the construction claimed. In that case the amount of the plaintiff's claim, as established at the trial, was $92 94, or an amount under $100.

The question under consideration was discussed in Strong vs. Daniels, 3 Mich., 474. In the report of that case the learned Judge is made to say, The recovery of costs is a matter regulated by statute. Sub. 4, of sec. 3, chap. 149, of the R. S., provides “ that in all actions far the recovery-of any debt or damages, or for the recovery of any penalty or forfeitures, where such actions are cognizable by a Justice of the Peace, the plaintiff shall have costs.” From this provision (as quoted) the Supreme Court was led to conclude that, independent of any other provision, the plaintiff would be entitled to costs in all cases if he prevails, whatever amount of debt he might recover. By an examination of the statute referred to, it will be seen that the provision relates to ‘-such actions as are not cognizable by a Justice of the Peace.” *

With a quotation of -the statute, as appears in the published laws, I think the conclusion of the Supreme Court must have been that “ this provision, standing alone, and unconnected with, and independent of- any other provision, would give the plaintiff cost iii all cases” not cognizable by a, Justice of the Peace, “ if he prevails, whatever amount of debt he might recover.” The statute just referred to, is Sub. 4. of § 5597, C. L.

The fifth subdivision of the same paragraph provides that “ in all actions where the plaintiff shall recover any sum, if it appear that his claim, as established at the trial exceeded two hundred dollars, and the same was reduced by set-off,” he shall be entitled fjo costs. And where a question arises, where the defendanthas sot-offs and plaintiff recovers less than $200, as to whether the plaintiff has established a claim exceeding $200, the Judge qnd not the jury is to determine that fact. Davis vs. Freeman, 10 Mich., 192.

It was held in the case of Inkster vs. Carver et. al., 16 Mich., 488, that the law of 1867 is not, to be understood as changing the pre-existing law in regard to the. party entitled to recover costs in suits comnleneed in the Circuit Court. The pre-existing law” referred to, is to be found in subdivisions 4 and 5, of § 5597, of the C. L., already referred to.

Is this action one cognizable before a Justice of the Peace — - within the jurisdiction of a Justice of the Peace?

A Justice of, the Peace has original jurisdiction of all civil actions wherein the debt or damages do not exceed one hundred dollars; and concurrent jurisdiction wherein the debt or damages do not exceed three hundred dollars, except in certain-specified cases, as libel, slapder, &c. C. L., § § 3653, 3654. See also § 3418, C, L. ; Sec. 18, Art. 6, Const.

This action was brought to recover upon a promissory note, upon which the plaintiff clamed and recovered judgment in the sum of $114. This was within the jurisdiction of the Circuit Court. It was also cognizable before a Justice of the Peace.. To' say that it was Dot within the exclusive jurisdiction of a Justice of the Peace would be true, but it would not be true to say that it was not cognizable.before a Justice of the Peace.” This being the case, it follows that there is nothing in the fourth subdivision of § 5597 authorizing the plaintiff to recover costs.

The plaintiff's claim^as established at the trial did not exceed two hundred dollars. It follows that he is not entitled to recover costs under the fifth subdivision.

The attention of the ,Court has not been challenged to any other provision of law by which -the plaintiff would be entitled to recover costs, and I have been unable to find any such provision.

It is true that at the time of the passage of the law governing costs, Justices of the Peace did not have concurrent jurisdiction with the Circuit Courts. But as to the propriety in retaining the old law, notwithstanding the provision in our new constitution and the legislation had in pursuance thereof,the Court has nothing to do. The Supreme Court has, in several decisions since, the adoption of the new constitution recognized the-prior statutes as to the party-entitled to costs, as still in force.

Prom the foregoing considerations I am forced to the conclusion that the plaintiff is not entitled to costs, and by reference to § 5600, O. L., it will he observed that '• in base a plaintiff recover judgment, hut not enough to entitle him to costs the defendant is entitled to judgment for his full costs.

Let the defendant’s costs be taxed and judgment he rendered in his favor therefor.


text:
    Warner et. al. vs. Slade.
    111 computing time with reference to the statute of limitation» ns applied to actions upon judg - mente, luid, that the day of entering the judgment shoo'd be excluded.
    Case made.
   Opinion by

Cooley, J.

This action was brought on a judgment rendered in a court of record, March 15, 1859. It was commenced by summons March 15, 1869, and the question is, whether the action is not barred by the ' statute of limitations. This statute provides that every action upon such judgment shall be brought within ten years next after judgment was entered and not afterwards. If in computing the time, the day on which the judgment was entered, is to be included, then the action is brought too late, but, if that day is excluded, it is conceded that the summons was taken out in due season.

This question has been very fully examined in the reported eases, and the courts have come to widely different conclusions.— The Court concur in the rule of Sir William Grant, in treating the day of the action or event as a point of time ODly, and excluding it altogether from the computation. This rule coincides with that adopted under rules of practice, which is always exclusive of the first day, unless the peculiar wording of the rule would in elude it.

The decision of the Circuit Court is deemed correct, and its judgment is affirmed with costs.


text:
    Hill vs. Robbins.
    Error to Oakland Circuit,
   The decision of this case at the Circuit is reported at length in 1 Mich. Nisi Prius, 305. The judgniént of the Court below is affirmed.


text:
    Fisher vs. Forbes.
    Error to Oakland Circuit.
    The statute against resulting trusts, applies only to thoso caaes iu which the deed is taken by a party other than the one furnishing tie consideration, with the consejil of the latter ■

   Opinion bp

Cooley, J.

In the fall of 1854, complainant resided in Bennington, N. Y., on a parcel of land which he had purchased of the Holland Land Company, and on which he was then owing some f1,300, which he was unable to pay. The company had sent an officer to remove him from the premises, when one Stillman Goodenough, the complainant’s brother-in-law, intervened and succeeded in obtaining two week’s time in which to arrange the matter. He arranged with one Patchin to re-exchange for complainant’s interest in the property, an 80 acre lot in Milford, Oakland County, Mich. The deed'from Patchin ran to Goodenough as grantee, and complainant does not seem to have objected to it. He took possession, however, claiming the land as his own, and has' since been iu possession and made valuable improvements.

Goodenough conveyed the land, it seems, to his brother iu 1855, on an understanding, as he claims, that the title should still be hold by complainant. There have been several subsequent conveyances until defendant has got the title and claims to be a grantee for value and in good faith. It is, however, not claimed that he possesses any greater equities than did Stillman Goodenough, and the complainant’s possession was notice of his title. Complainant now claims that the conveyance to Goodenough was against his will and. in fraud of his rights and seeks to gain the title for himself, while defendant insists that complainant assented to the conveyance, and that under our statute there is no resulting trust in his favor.

Held, That the statute applies only to those cases in which the deed is taken to a party other than the one furnishing the consideration, with the consent of the latter. From the facts which appear in this case it appears that Goodenough was acting in the .interest of complainant and as his agent. He should therefore have had the deed made out to him or a trust clearly declared., so that it could be legally enforced.

The decree was correct and was affirmed with costs.