author: Christiancy J. Co ole v J. Martin Ch. J.

text:
    James W. Tillman and others v. Emily Shackleton.

      Married Women: Power to contract in relation to sole propei'ty. Where a married woman keeps a boarding bouse with the consent of her husband, and controls the entire business, contracts of purchase made by her for the purpose of such business, must be considered as contracts in relation to her sole property, and therefore binding upon her.
    Whether her power to contract for property is limited to cases resting on similar principles quaere: Cooley and Campbell, JJ. holding it to be general;
    Chbistiancy J. regarding it as limited by the circumstances, and Martin, Ch. ¿T. dissenting.

      Heard May 16th.

      Decided May 21st.
    Error to Wayne Circuit.
    This was an action of assumpsit brought against defendant in error — a married woman who was engaged in keeping a boarding house — for certain furniture purchased by her, for said business.
    Judgment was rendered for plaintiff.
    The facts are stated in the opinions.

      G. J. O’Flynn and G. V. N. Lothrop, for plaintiff in error.
    1. The defendant purchased the property in her own name, for herself, and not for her husband, or as his agent. Section 1, of the act of 1855.— Gomp. L. § 3292 allows her to acquire property, both real and personal, “by gift, grant, inheritance, devise, or in any other manner.” The term grant, is comprehensive enough to embrace a purchase of personal property — 44 Barb, 374; 27 N. T. 277; 33 Id. 518.
    If it is not, the clause in any other manner, certainly is.

      a. The furniture can in no sense be considered as a part of the earnings of the boarding house. Had it been paid for by money received from the boarders, the case might be different. The only question then, before the court, is, whether a married woman can become the owner of personal property by purchasing the same in her own name or credit?

      b. It is to be presumed from the evidence in the case, that defendant carried on the boarding house with the consent of her husband. Is there anything to prevent a husband from giving his wife her time and earnings? He can give her anything of value which he owns, and no one has a right to object but a creditor. There is no objecting creditor in this case.
    2. If the furniture became the sole property of defendant, then an action is maintainable against her for the purchase money. — Comp. L. § 3294.
    An action for the purchase price of a thing, is certainly an action in relation to it.
    Everi if the furniture did not become the sole property of defendant, nevertheless, she is liable personally for the contract price.
    Under, section A of the act of 1855, as amended by the-act ..of- 1857,— Gomp. L. § 3295 — a married woman is liable to be sued upon any contract made by her, in cases where her husband is not in law liable. The husband is certainly not liable in this case. The furniture was not sold to, or purchased by defendant, as the wife, or as the agent of her husband, but was purchased by, and sold to her, individually, and upon her sole credit. — 3 Campb. 22; 5 Taunt. 356; 2 Sill, S. Gar. 335; 1 Gar. & P. 16; Story on Agency. § 447.;
    Under the original act of 1855, the wife was, undoubtedly, only 'liable to be sued upon contracts in relation to her sole property. The amendment of 1857, however, has clearly made her liable in all cases where her husband is not liable. We submit, that the court did not intend to decide this point formally, in Glover' v. Alcott.

      J. Gaplis and F. S. Canfield, for defendant in error.
    The only question presented to this court is, whether the contract sued upon is a valid one, and upon which the defendant in error is personally-liable.
    We insist that it is not. At common law, there is no doubt that such a contract by a feme covert would be wholly void
    The statute of this state has, to a certain extent, modified the common law. — 2 Gomp. S pp. 966, 967.
    But it has not invested the feme covert with an unlimited power of contracting in her own name, or to the extent claimed by plaintiff in error in the present action.
    By section 1 -of this act, it is provided that all the property of every married woman, howsoever or whensoever acquired, shall be and remain her own estate; that the same shall not be liable for her husband’s debts, and that it may be contracted, encumbered and ..conveyed by her in the same manner, and with 'likeqffect,;-as - if'sl^e were unmarried. 1 ’ 'f -, vv
    Section 3 provides for the bringing -iof Suits . by and'against married women in relation to'(their own" separa^ property, “and also in oases where the property of the husband can not be sold, mortgaged or otherwise encumbered, without the consent of the wife, to be given in the manner prescribed by law, or when his property is exempted by law from sale on execution or other final process issued from any court against him, his wife may bring an action in her own name, with the like effect as in cases of actions in relation to her sole property, as aforesaid.”
    Section 4 exempts the husband from liability upon any contracts made by the wife in relation to her sole property.
    This action can not be maintained under any of the sections alluded to, which relate simply to the separate property of femes covert,, for the following reasons:

      First. 'The power of a married woman to bind herself by contract exists only where she has, at the time of making the same, separate property in her own right.

      Second. There is no proof that the defendant in error had any property at the time the contract was made, in relation to which she could contract. The contract was therefore void db initio, and cannot be enforced. Nothing has since transpired to give it validity.

      Third. The property purchased under the alleged contract sued upon, became the property of the husband. He, therefore, is alone liable for its payment. — 17 Iowa, 393; 42 FT. JS. 381; 36 Penn. 410; 38 Id. 279; 21 Id. 349; 3 F. D. Smith, 310; 5 Wis. 253; 5 Duer, 477; 3 law Register, 229; 21 Barb. 546, 551; 38 Id. 27; 4 Duer, 96; 35 Maine, 332; 11 Mich. 470; 18 JST. Y. 272.
    The presumption of the law on the facts of this case is, that the defendant acted merely as the agent of her husband. The property was brought to his house, was received by him, and he has enjoyed the use of it. He must have known of the purchase at the time it was made, and' will be presumed to have assented to and ratified it. The following authorities support fully the proposition: —
      Ghitty on Gont. 166, 161; Story on Agency, §§160, 161, 270, note 3; Parsons on Gont. 288; 6 N. 3. 124; 15 Conn. 357.
    This suit can not, therefore, be maintained, by virtue of section 3 of the acts upon which the plaintiffs in error rely.
    This action can not be maintained by virtue of the provisions of section 4. This section, it is contended, provides for three eases in which suits may be maintained against a married woman.

      First. Upon contracts made by her in relation to her sole property.

      Second. Upon contracts where her husband is not in law liable.

      Third. Where he refuses to perform such contracts.
    The most liberal construction of this section will not warrant the conclusion that the defendant in error is liable upon the contract sued upon. We have already shown that it is not a contract in relation to her sole property. And in the absence of proof that the contract was in relation to her sole property, the law will presume that she acted simply as the agent of her husband. He is liable upon the contract, and there is no proof that he ever refused to perform it.
    This . court can not maintain this action without violating the well established rule of construction, that statutes in derogation of the common law must be strictly construed. — 2 Mich. 486; 3 Id. 309; 4 Id. 332; 21 Pari. 558.
    The object of the statute was the protection of married women in the enjoyment of their own property, and the protection of creditors upon contracts made with them in relation to such property. It was not intended to repeal all the restrictions imposed by the .common law upon the power of femes covert to do business on their own account. But such will be its effect if the construction contended for by the plaintiffs be correct. If the defendant in error was capable of making the contract in this cause, then there is no contract, not in itself void, which a married woman can not legally make, and no commercial enterprise in which she may not engage.
    We submit that the judgment of the Circuit Court should be affirmed.
   Christiancy J.

This suit was originally brought by the plaintiffs in error against the defendant in error in a Justice’s court, to recover the price of certain furniture sold1‘to the defendant. The Justice rendered judgment for the plaintiffs for two hundred and twenty dollars and costs.

The defendant removed the cause to the Circuit Court by certiorari, where the judgment of the Justice was reversed, and the original plaintiffs have brought the cause to this court by writ of error to reverse the judgment of the Circuit Court.

It appears by the return of the Justice to the certiorari, that on the trial of the cause before him, it was admitted by the parties that the plaintiffs in that suit “ sold, and the defendant purchased in her own name, certain furniture of the value of two hundred and twenty dollars; that at the time of said sale and purchase the defendant was a married woman, living with her husband, in a house in Detroit, which was kept as a boarding house; that she had the sole control and management of the house, and received the pay of the boarders; that the furniture, to recover the value of which this suit was brought, was purchased by her for said boarding house, and that it was used for such purj)ose,’ and that her said husband had nothing to do with the management of said boarding house, and received none of the profits arising therefrom.”

If this evidence fairly tends to show a state of facts which would warrant the judgment rendered by the Justice, then it could not properly be reversed on certiorari, though the Circuit Court or this Court were of a different opinion upon the weight of the evidence.

We think the evidence clearly tended to show: 1st, That the wife was carrying on the business of keeping a boarding house exclusively on her own account, with the consent of the husband; that she was the sole proprietor of the business and of the property necessarily incident to it, such as the' supplies, and the money received for board, and that the husband had in fact no control or management of the business; and 2d, That the sale of the furniture was made to her on her own credit, and not upon that of the husband, and that it was purchased for and used in that separate business. Such we think the Justice was well authorized to find from the evidence to be the state of facts; and, if at liberty to weigh the evidence, we could not find otherwise. To render the husband, liable at all, even at common law, for this furniture, the sale must have been made in some way upon his credit, whereas it appears to have been made upon the sole credit of the wife. — Metcalf v. Shaw, 3 Campb. 22; Bently v. Griffin, 5 Taunt. 356; Legget v. Reed, 1 C. and P. 16; Stammers v. Macomb, 2 Wend. 454; Shelton v. Pendleton, 18 Ct. 417; This furniture does not appear to come within the range of ordinary necessaries for the use of the family, nor does it appear that the goods came to the use of the husband — (if either of these facts would render Mm liable when the credit was not given to him.)

The question of the wife’s liability, however, depends upon our statute in reference to married women. Act of 1855, as amended in 1857. — See Gomp. L. § 3292 to 3295.

By the first section of this act all the property, real and personal, to which the wife “may become entitled by gift, grant, inheritance, devise or in any other manner, shall be and remain her estate and property, and shall not be liable for the debts, obligations and engagements of her husband, and may be contracted, sold, transferred, mortgaged, conveyed, devised or bequeathed by her in the same manner, and with the like effect as if she were unmarried.”

By the second section, any person who may hold any property, real or personal, as a trustee for any married woman, may convey to her all or any of the property, or the rents, issues and profits thereof, for her sole and separate use and benefit.

By the third section, actions may be brought by and against her in relation to her sole property, “in the same manner as if she were unmarried.” This section would doubtless, of itself in connection with the first, without the aid of the fourth section, render valid her contracts in reference to her sole property already acquired.

But, by the fourth section, it is provided that the husband of any married woman shall not be liable to be sued upon any contract made by such married woman in relation to her sole property, and the wife shall be liable to be sued upon any contract or engagement made by her in cases where her husband is not in law liable, or where he refuses to perform such contract or engagement. Whether this section renders the wife competent to make any contract having no relation to her sole property, is a question which I do not think necessarily involved in the present case, because I' think the facts admitted clearly tended to show, not only that the wife was the sole proprietor of the business of keeping the boarding house (which, of itself, may be regarded as coming fairly within the equity and spirit of the statute as a sole property), but that she also had the sole property, at least in the income of the business; and this furniture being purchased by her upon her own credit, and not that of the husband, for the .benefit of, and to be used in carrying on that business, she had full power to bind berself by the contract of purchase; and that such contract, as well- as the action upon it, was “ in relation to her sole property,” unless it shall be found that she had no power to carry on the business in • question on her separate and individual account, and that the business and the. property incident and necessary to its prosecution must have vested in the husband.

We have already held that a husband may, under this statute, convey land by deed directly to his wife; and where there are no conflicting claims of the husband’s creditors involved, and it is not done for the purpose of shielding his property from his creditors, we can see no legal objection to her acquiring any amount of property directly from the husband, and holding it as her sole property.

And as to the right of the wife to carry on a separate business, upon her own means and credit — while" a majority of the court inv Clover. v. Alcott, 11 Mich. 471, (where the question was one of fraudulent concealment of the husband’s property to defraud creditors,) held that the wife could not carry on upon credit the general trade or business of a flouring mill, buying wheat and manufacturing and selling flour, the proper attention to which would require all her time- and services, and render her incompetent to attend to the duties of her household — yet in that case it was intimated that it was not intended to include within the rule there laid down “any business usually carried on by females, and which consists largely, and almost necessarily of female labor, such for example as that of a milliner.” The present is a case which comes clearly within the exception there intimated — a case in which the wife, almost of necessity, becomes practically the head and manager of the business. And we can see no legal objection where the husband assents, to her carrying on the business of keeping a boarding house as her own separate business, and upon her own account, either upon cash or credit; and we think, under the facts of this case, she must be held competent to make the contract of purchase for the furniture purchased for, and used in her separate business.

The husband’s rights are not injured by it. lie is in no respect bound by her contract, when the credit is not given to him, and satisfaction of her personal liability can only be enforced against her sole property. We think her contract of purchase comes within the fourth section of the act, and that the judgment of the Circuit Court should be reversed and that of the justice affirmed, with costs.

Co ole v J.

I agree with my brother, Christiancy, that the defendant was liable for the purchase, under the circumstances, appearing in this case, and that the judgment of the Circuit Court should be reversed. I do not place my concurrence, however, on the peculiar nature of the business for which the purchase was made, or regard her contract as depending for its validity on the question whether the defendant was previously possessed of any sole property. There was never any impediment to the acquisition of property through purchase by a married woman: the difficulty was, that at the common law the ownership passed immediately to the husband by virtue of the marriage relation. The statute — Comp. L. § 3292 — establishes a new rule, by providing that the property, however acquired, shall be and remain the sole property of the wife, with the same power of control as if she were unmarried. Another section (3295) provides that the husband shall not be liable to be sued upon any contract made by her in relation to her sole property, but that the wife shall be; and I think a contract of purchase is within this section whether she had property before or not. The contract is for the acquisition of sole property; and her title to it, or at least a right in relation to it, vests when the contract is made. There is, therefore, no straining of terms in saying that the contract has relation to her sole property. The statutes on this subject establish a new system, and are to be construed with a view to give them the effect designed by the legislature, rather than with an effort to retain as much as possible of an old system which they were meant to displace. The rule which they establish is one of general capacity to own property, and to make valid contracts, binding at law and in equity, in relation to it; and I discover nothing in the statute which so limits that capacity as to prevent her making the first acquisition any more than any subsequent one, on credit. Although it was once held (Brown v. Fifield, 4 Mich. 822) that even the constitutional provision on this subject was to receive a strict construction, because contravening the common law, the subsequent decisions have been based on a different principle, and justly, as I think, have recognized the change designed to be made as quite radical in its nature. And I should be unwilling to lay down any rule which should seem to put upon the wife’s power to make contracts on her own behalf, any limitations based upon a strict or technical construction of the statute.

While, therefore, I agree fully with the opinion of my brother, Christiancy, I do not base my judgment exclusively upon the views which he has presented, but should think the action sustainable notwithstanding some of the circumstances upon which he remarks, were absent from the case.

Campbell J. concurred.

Martin Ch. J.

I do not concur with my brethren. I can*not hold that a wife, living in her husband’s home with him, can be made- liable for necessary household obligations.


source: Caselaw Access Project

author: Christiancy J.

license: Public Domain

text:
    Detroit and Milwaukee R. W. Co. v. Chas. E. Adams and others.

      Gammon carrier: Effect of special notice, after acceptance of goods. A portion of a certain quantity of wool was delivered to the D. and M. R. R. Co., by the owner, and received by their agent for transportation, with the understanding that the balance should be sent to their depot as soon as they should give notice that they had cars to ship it.
    The company having notified the owner, the balance of the wool was delivered to and accepted by them, whereupon the owner signed a shipping request, furnished to him, to the effect that said company would forward all of said wool, according to certain special conditions endorsed thereon, and limiting said company’s liability.
    Suit being brought for the value of a part of said wool, which it appeared was lost before the balance was shipped, it was held, that whatever might have been the effect of such a notice, if given before the delivery of the property at the depot, it came too late to affect the question of a prior delivery to, and acceptance by the company as a common carrier. At the time of the receipt of the notice, plaintiffs had a right to consider it as intended to refer only to the liability of the company in respect to the carriage of the property.

      Heard May 18th.

      Decided May 21st.

    Error to Oakland Circuit.
    This action was brought against plaintiffs in error to recover the value of one sack of wool alleged to have been delivered to them, as carriers, for transportation.
    Judgment was rendered in the court below for plaintiff (defendant in error).
    The facts are stated in the opinion. ¿

      Geo. Jerome, JJ. JJ. Pmmons and Geo. plaintiffs in error. W/. Swift, for
    Until the shipping request was sent and directions were given to ship the wool, it being retained at the request of the plaintiffs, the company did not assume the liability of common carriers. — 4 Allen 520; 5 Mich. 420; 7 Id. 515; 2 Pars, on Cont. (5th Pd.) 179; Angelí on Carriers. §134; Pdwards on Pailm. 448; Par soft’s Mercantile Law, 203 ; Story on Pailm. §§ 533, 537.

      If the plaintiffs seek to hold the defendants as carriers, it is for them to show that they had the missing sack in their possession in that capacity. Now the evidence not only does not prove this, but renders it extremely probable that that sack, if it ever was at the depot at all, had disappeared before the liability of the defendants as common carriers commenced.
    While the plaintiffs, by permission of the defendants’ agent, were using a place in the depot for weighing and marking their wool, having full possession for that purpose, it is difficult to understand how the defendants were liable for wool in any- capacity. The plaintiffs occupied a part of the depot for their own convenience, and the wool was no more in possession of the defendants than if they had leased the same part of the depot to the j>laintiffs.
    The plaintiffs do not show that the missing sack was ever delivered to the defendants in any capacity, inas-' much as it is just as consistent with the., testimony, and far more' probable, that it was taken away .while their draymen were drawing wool to the depot, and they were weighing and marking it, as at any time afterwards.
    The defendants, up to the time when the shipping-request was sent to the depot, if liable at all, were only liable as gratuitous bailors. — 7 Mich. 515; Edwards on Bailm. 47; Story on Bailm. 41.
    As such they were only liable for gross negligence. Story on Bailm. §§ 62, 67 ; Edwards on Bailm. 47; 2 Pars, on Gont. {5th Ed.) 89; 17 Mass. 500; 38 Me. 55.

      M. E. Grofoot, for defendant in error.
    1. The railroad company is liable, as a common carrier, for the bale of wool.
    The company received it into its warehouse, for shipment, in the ordinary course of business; and th£ delay in shipping was for its own convenience, so as to obtain cars to ship with.
    The full directions were marked on the sacks, and its agent says he did not know to whom wool was consigned, except from marks on bales, until the shipping request came.
   Christiancy J.

This was an action brought by defendants in error against the company, in a justice’s court, to recover the value of one sack of wool, alleged to have been delivered to them as common carriers, for transportation.

The justice found the defendants below liable for the wool as common carriers. The proof of the loss was clear and uncontradicted, and that it occurred before the balance of the wool (of which it was a part) was shipped from the depot of the defendants.

And if there was evidence before the justice tending to show that the wool was delivered to, and accepted by the company as common carriers, then the finding of the justice must be held conclusive, though the case should be such that we, if allowed to weigh the evidence, might have arrived at a different conclusion — unless, indeed, it should appear that admitting the truth of the evidence, the plaintiffs, for some reason, had no right to rely upon it, or admitted upon the trial some fact, or state of facts, which would clearly defeat or avoid such tendency. Was there, then, any evidence in this case tending to show that this sack of wool was delivered to, and accepted by the company as common carriers ?

It was shown, and not disputed, that the general business of the company was that of common carriers of goods and passengers for hire or reward; that they kept a building or depot in Pontiac for the reception of property for transportion over’ their road, and for the delivery of property coming to that place upon their road. There was evidence that the plaintiffs sent one hundred and two packages of wool to this depot, at different times between the 15th and 25th of October. (On which particular day the package subsequently lost was sent, did not clearly appear). That this wool was sent to the defendants’ depot for the purpose of transportation over their road, consigned to H. Hollister, Hartford, Ct., which was plainly marked upon the packages, and that the freight agent in charge of the depot was notified of the purpose for which it was sent there, and of the wish of the plaintiffs, that the whole might be sent off together. That the agent told the plaintiffs where to leave the wool, and pointed out the place in the depot where it should be put, and defendants’ men assisted in unloading the wool and putting it in. That after part of the wool had been thus delivered, the agent saying he could not then get cars to send it all together, it was agreed that plaintiffs should not send up the balance, until notified by the agent that he could ship it, as he said they were considerably filled up then in the depot with produce; that in a few days after, and about the 24th or 25th of October, having received notice from the agent of. his readiness to ship, the balance was sent to the depot. Part of the wool was shipped on the 26th of .October, and part on the third of November, but the sack in question was not shipped, and could not be found.

We think this evidence tended strongly to show the delivery to, and acceptance by the defendants as carriers; that it was thus delivered and accepted as it came, and was placed in the depot, and that the delay in the shipment was for the convenience of the company, till the necessary cars could be got ready. ' But it is insisted by the company that the effect of this evidence was entirely destroyed by a notice to plaintiffs that the company would not be responsible, except upon certain conditions, presently to be mentioned.

The only proof of such notice, and of the time and manner in which it is claimed to have been brought home to the plaintiffs, is this: After the defendant’s agent had given the notice that he was ready to ship, and the balance of the wool had been brought to the depot, the plaintiffs signed a shipping request in the following words:

“ The Detroit and Milwaukee Railroad Company will please receive the undermentioned property, addressed to II. Hollister, Hartford, Ct., and transport over its line, subject to its tariff, and forward under condition stated on the other side.
“102 sacks wool. 20.300 lbs.
t “H. Hollister, Hartford, Ct.”
(Signed by plaintiffs.)

The printed form was furnished by the company, and the blanks filled by the plaintiffs. On the opposite side of the same sheet, under the head of “ General Notices and Conditions oe Carriage,” was, among others, the following printed notice:

“ That they will not be responsible for any article or articles conveyed upon their railroad, unless the same be signed for as received by a duly authorized agent, and a declaration or shipping note upon the regular printed form, as provided, presented to the agent, setting forth the description of the goods, and the parties to whom they are to be delivered. And when goods arc intended, after being conveyed by this railroad, to be forwarded by some other company or conveyance to their final destination, the duplicate receipt furnished by the consignor must specify the same, and the articles marked accordingly.”

Whatever might have been the effect of this notice, if given in this manner before the property was delivered at the depot, it certainly came too late to affect the question of a prior delivery to and acceptance by the company, as carriers, or-their liability for its safe keeping, while awaiting transportation. At this stage of the transaction, if the property had already been accepted by them as earners, the plaintiffs had a right to treat the notice as only intended to affect the liability of .the company in respect to the carriage of the property; if, in fact, it could have been construed as anything more than this, if given before the property was received in the depot.

The judgment of the Circuit Court, affirming) that of the justice, must be affirmed, with costs to defendants in error, in the circuit and in this court.

Cooley J. and Martin Ch. J. concurred.

Campbell J. did not sit.


author:
Campbell J.
      Cooley J.

text:
    The People v. Matthew H. Maynard.

      Washington County invalid. The organization of Washington county out of part of Marquette county, held invalid. ’ • •

      County organization, what requisite. An act purporting to organize a new county out of territory detached from an old one, but which contains no organized townships, and makes provision for none, is inoperative and void; as without such townships there can be no legal elections, and no means of organizing.
    Such an act is not made effective by the subsequent passage of an act organizing a single township in the new territory, leaving the remainder not provided for.
    A county can not be organized without the means of exercising all its necessary functions, and requires more than one organized township, as the board of supervisors can not exist without more .than one member, and there can be no county without such a board.
    Where townships have become organized under a statute and have acted for many years, and have been recognized by the various state and local authorities, it is too late to inquire into the validity of the law providing for their original creation, and their corporate existence can not be questioned.
    The legislature can not lawfully deprive qualified voters of a county of their right of suffrage, by organizing townships in only a portion of it; leaving the remainder unorganized.
    The division of a single county attached to an existing judicial district into two counties, will, unless otherwise provided, leave both counties within the same district.

      Heard May 16th.

      Decided May 25th.

      Quo Warranto.

    The information in this case was filed by William L. Stoughton, the Attorney General, against the defendant for intruding into and usurping the office of county treasurer of Marquette county.

      The defendant pleaded that by the organization of Washington county the residence of the treasurer of Marquette county was thrown into the new county, thereby creating a vacancy in the office, to fill which the board of supervisors of Marquette county appointed., him treasurer. One of the pleas relied on the “act to organize the county of Washington,” and the other on that act, and also an additional “ act to organize the township of Negaunee, in the county of Washington.” The replication to the first plea alleges that the county of Marquette consisted of but three townships, viz: Marquette, Negaunee and Chocolay, and that only parts of the former two were embraced in the new county, and that such parts contain 3,500 inhabitants and 700 electors. The replication to the second plea alleges the same facts as replied to the first, and also sets forth the portions of the parts of the two townships, which portions' were included in. the new township, and avers the number of inhabitants and electors of the jmrtions of those parts, which portions were not included, in the new township; and also sets forth the part of Negaunee remaining in Marquette county, and left, by the new township act, without any township organization; and avers the number of inhabitants and electors of that part. To these replications a demurrer, was interposed, and the principal questions in the case relate to the validity of the acts aforesaid.

      A. W. JBuel,. A. Poncl, C. I. Walker and G. V. N. Lothrop, for the People.
    1. The act of 1867 substantially violates the constitution in its letter and spirit, on the following grounds:

      a. It undertakes to make the new county a corporation without giving it any corporate power to act, or accomplish any end or purpose whatever. — Const. Art. 10, § 1.
    5. It makes no provision for the election of county officers; nor for a judiciary; nor could a board of supervisors exist under its provisions.

      c. The constitutional right of'.'.suffrage and voting in all elections, with power and means for, exercising such right, is- taken from the electors, v.
    The .position that the county a.ct .is unconstitutional is fully sustained by the following 'cases.— 2 Gray, 84; 20 JST. T. 447; 30 Barb. 349; 11 Mich 63. '

      d. It makes no provision for organized townships, and without which the new county can never act, or exercise qr assert the smallest right or power.
    2. The county act, if not unconstitutional, is, at least, inoperative and void. ■
    3. The township act does not, aid the county act, to-render it constitutional operative.

      levi Bishop, for respondent.
    1. The act of February 15-, 1867, is not void, because it did not provide all the details for .holding elections in the county of Washington.
    It is a general rule in this countiy. that there are no limits upon the legislative power of a state, except such as are created by the federal or the state constitution. The legislative body represents the sovereign power of the people. — 20 Wend. 381; 27 Barb. 593;' Smiths Com. 236-309; 1 Mich. 295, 306, 307; 5 Id. 251; 13 Id. 127, 481.
    A statute can not be declared void on the ground that it violates the fundamental principles of republican government, unless it comes clearly in conflict with some express constitutional provisions. — 4 Mich. 244; 13 Id. 481.
    The act doés not take away-.-the elective franchise, or change the qualifications of voters. It simply creates or re-arranges the boundaries of certain municipal corporations. ' It does not violate any principles of free government, and it would not be void if it did.— 4 Mich. 244; 13- Id. 481.
    A township which has not all the full details of an ordinary town organization may be still a body corporate in law. Such seems to be tlie opinion of this court.— 10 Mich. 250.
    2. The act of February 15, 1861, which created the new county of Washington was not null and void on the ground, of unconstitutionality.

      a. The act by its terms creates a new county of part of the territory of another. By its terms it creates a municipal corporation, “with all the powers, privileges and immunities to which by law the other organized counties of the state are entitled.”

      b. If Washington county was created as such, then the office of treasurer of Marquette county became vacant, because the treasurer thereof did not reside therein'. Const. Art. 10, §4; 1 C. L. §§ 390, 415. And the board of supervisors of Marquette county had power to appoint the defendant to that office, as they did do.— 1 C. L. § 380.

      No given form, j>ower, duty or property is essential to the existence of a coiqioration. If an act .of the legislature creates it as a corporate body, no given form, power or property is essential to its vitality.
    We claim, then, that this act created a new county by the name of Washington, and though imperfect, it was still a legal corporation.
    3. The two acts of February 15, and February 21, must have had the effect to create a county, even if the first did not. If the existence of a township) was essential to the existence of a county corporation, we have it in the second act. This, too, in addition to the fact that a large part of the old town of Negaunee, and a still larger part of the old town of Marquette were in the new county, and may be claimed to be the main bodies of those towns.
   Campbell J.

Defendant, being called upon to show by what warrant he exercises the functions of treasurer of Marquette county, pleaded that by the organization of Washington county, the residence of the treasurer of Marquette .was thrown into the new county, thereby creating a vacancy, which defendant was appointed to fill by the supervisors. One of the pleas relied on the “Act to organize the County of 'Washington,” approved February 15, 1867; and the other relied on the^same act, and a further “Act to organize the Township of Negaunee, in the County ~of Washington,” approved February 27, 1867. Both acts were directed to take effect immediately.

The replication to the first plea sets up that the county of Marquette consisted of but three townships, to wit: Marquette, Negaunee, and Chocolay, and that only parts of the former two were embraced in the new county, and that such parts contain 3,500 inhabitants and 700 electors.

The replication to the second plea sets up the same facts as to the division of territory, and contains averments of the number of electors and inhabitants in the part of Negaunee left in Marquette county, and in the part of Marquette township of Washington county.

To these replications defendant demurred. And the principal legal questions refer to the validity of the statutes purporting to create and organize the county of Washington and town of Negaunee, and cut them off from Marquette, without making provision for the proper transaction of business, and the protection of the rights of the inhabitants.

The first statute declares that the territory described in it “is hereby organized into 'a separate county by the name of the county of Washington, with all the powers, privileges and immunities, to which, by law, the other organized counties of this state are entitled.” The second section fixes the county seat. The third provides that at the annual township meeting in April thereafter, county officers should be elected, who should .go into office on the first Monday of May thereafter. The fourth section names several persons as county canvassers. The fifth provides that certain buildings in Negaunee may be used for county purposes, and makes the county a part of certain senatorial and representative districts.

The second statute, undertakes to make the part of Negaunee contained in the new county successor to the entire town of that name, and to keep the^old officers in office until superseded by new ones; and provides for a settlement of property and accounts between the two parts.

An organized county, under our constitution, signifies a county having within itself the necessary means for performing- its functions independently of any other county; with its lawful officers and machinery for carrying out the powers and performing the duties belonging to that class of corporate bodies.

Among the necessary incidents to a county are subdivisions in which electors can lawfully vote, and townships whose supervisors conjointly may exercise the legislative and administrative powers of the corporation. The county officers are all elective, and the supervisors are necessary for taxation and for various other matters of business. Under the constitution, no one can vote except in the township or ward where he resides. — Art. 8, § 1. The same section gives the right of voting to all white male citizens who have resided here a sufficient length of time. And the townships in which elections are held must be organized townships. — Art. 11, §§1,2.

Inasmuch, then, as a county can not become organized without the existence of townshijDS, where elections may be held, and whose supervisors may constitute a county board, we must see whether this is provided for. The provisions requiring this board can not be construed as directory, or as compatible with its indefinite postponement. No county can subsist without it. The whole financial concerns of the county depend upon it.

The first statute does not undertake to create or organize townships. If such were already in active existence, of course no such creation was necessary, as the general laws would then furnish the guide for their action in holding elections. The statute provides for the election of all county officers, and locates the . new county in the proper legislative districts. It was claimed on the argument that no provision was directly made for placing it in a judicial district. But, inasmuch as the whole of the county was in the twelfth district, we think it still remains there. Had it included a part of two judicial districts, we might have found some difficulty in dealing with this objection, but, as it stands, we see no occasion for legislation on this point. The only inquiry must be, whether organized towns were already to be found in the new county. If they were, we see no difficulty in the way of the complete organization through the spring elections.

The pleadings show that there were but three townships in the county before the division. One of them remained untouched within the old county, and two were divided. These would, of course, continue as existing towns, and the territory taken away from them, until newly organized, or attached to some other town, would cease to have any township existence. - This act, then, provided no means for organizing this detached territory, and no general law reaches the case, and, consequently, no elections could be had in it. And without such elections the act would be entirely inoperative .and void.

It was suggested by an amicus curia,, that, as we were bound to know judicially the existence of the various township organizations, we might be of opinion, upon examining the case, that there were townships actually organized within the territory set off. It may be well, therefore, to investigate this subject. At the beginning of the year 1857, the county of Marquette included on the north no higher than the 49th tier of towns. All the land east of range 26 was in the town of Marquette. Range 26 was all in the town of Carp River. All west of range 26 was in the town of Iron. The present alleged county of Washington embraces all of the old town of Iron, a single section in Carp River (containing the public buildings), and some towns north of the 49th tier which were subsequently annexed to the town of Marquette. On the 10th of February, 1857, an act was passed entitled “An act to provide for the organization of the township of Teal Palee, in the county of Marquette, and to define the boundaries thereof.'1'1 This act created the town now known as Negaunee, by including in it parts of the towns of Iron and Carp River. It then abolished those towns, by transferring all their remaining territory to the town of Marquette. It is now suggested that no such purpose could be legitimately connected with the title of the act, which under the constitution must indicate the single object to be provided for. If this question had been raised immediately, we are not prepared to say that it would have been altogether free from difficulty. But, inasmuch as the arrangement there indicated had been acted upon for ten years 'before the recent legislation, and had been recognized as valid by all parties interested, it can not now be disturbed. Even in private associations, the acts of parties interested may often estop them from relying on legal objections, which might have availed them if not waived. But in public affairs, where the people have organized themselves under color of law into the ordinary municipal bodies, and have gone on year after year raising taxes, making improvements, and exercising their usual franchises, their rights are properly regarded as depending quite as much on the acquiescence as, on the regularity of their origin, and no ex post facto inquiry can be permitted to undo their corporate existence. Whatever may be the rights of individuals before such general acquiescence, the corporate standing of the community can be no longer open to question. See Rumsey v. People, 19 N. Y. 41, and Lanning v. Carpenter, 20 N. Y. 447; where the effect of the invalidity of an original county organization is very well considered in its public and private bearings. There have been direct legislative recognitions of the new division on several occasions. Laws, 1858, p. 23; Laws, 1861, p. 556; Laws, 1863, p. 22. The exercise of jurisdiction being notorious and open in all such cases, the state as well as county and town taxes being all levied under it, there is no principle which could justify any court at this late day in going back to inquire into the regularity of the law of 1857.

. The conclusion, then, is inevitable, that the act to organize the county of Washington can not of itself work any such organization, and, unless aided by the subsequent statute, must fall. It was enacted for no purpose but that of organizing the new county.

The second statute provides for the organization of the town of Negaunee in the county of Washington, by adopting an existing township. It provides, therefore, the means of holding one township. election. But it makes no provision whereby the electors of the rest of the county can vote, and it deprives of their suffrages the inhabitants of a portion of Marquette county. And it is claimed by the Attorney General that a county can not be organized under such provisions. '

Leaving out of view the consequences in Marquette county, the result of this legislation would be to give the people of the single township of Negaunee the right to elect the whole body of county officers, and would cut off from the right of voting, not only now but forever— unless the legislature should intervene — a considerable body of electors who have hitherto had the means of exercising that right. And it would have the further effect of leaving this county with only one supervisor.

The constitution requires the county officers to be chosen in each county “by the electors thereof,” and, as has already been seen, each man must vote in his own township. We held in the case of the Attorney General v. Supervisors of St. Clair, 11 Mich. 63, that a law which provided no means for taking votes in cities upon the question of the removal of a county seat was invalid, although all the townships had the opportunity of voting. We think this case comes within the same principle, and that the deliberate exclusion of the electors outside of Negaunee was illegal.

We also think that no county organization can be complete without more than one township. There is no method by which one supervisor can be legislated or construed into a “board.” The powers of the board are of the most important character, and it is designed that every part of the county should be represented by its members. Their duties are such as are never allowed to be exercised by single persons, and this is the first instance in our history where the legislature have acted (if they really did so act) upon the theory that such a delegation of authority to one officer was possible. The board of supervisors is one of our long established institutions, and no one can do.ubt, in reading the constitution, that it was designed to be perpetuated in its existing form, as an aggregation of town officers, and not as a single individual.

The intrinsic defects of the first act are not aided by the second. Neither can stand alone. And we are compelled to the conclusion that no change has- been legally made in the organization of Marquette county. It follows that the old treasurer was not removed from office, and there was no vacancy to be filled. The appointment of the respondent was therefore unauthorized, and judgment of ouster must be entered against Mm; the demurrer not being well taken, and the pleas also being insufficient.

Martin Ch. J. and Christiancy J. concurred.

Cooley J.

If this proceeding had been instituted against the officers assuming to act as the county officers of Washington county, and who would have been interested in presenting all the considerations which might tend to defeat it, I should have felt less reluctance in entering upon a full examination of all the points involved. But as it is doing no injustice to any one to say that this is not an adversary proceeding, and the parties who would have been defendants in a more direct attempt to reach the same end, have declined to speak to the ■ present record, I prefer to reserve' an opinion upon some of the very grave questions involved until a case shall arise rendering a decision necessary.

I agree with my brother, Campbell, that.the two acts of the legislature, now in question, do not, of their own force, organize the county of Washington, or provide any machinery by means of which such organization can be effected without further legislation. I put my concurrence upon the ground that there can not be an organized county with a single township only, nor a board of supervisors with only one member. The powers conferred upon that body by the constitution are of very high importance; some of them, legislative in their character, requiring consultation, discussion and deliberation; and such as in no part of our political system are conferred upon single individuals. The implications from the constitution are all strongly against any intention that such large and varied powers should be thus concentrated; and the term “board,” in its derivation as well as in its ordinary use, indicates a deliberative body, composed of more than one person. Without, therefore, considering whether there is any constitutional infirmity in either of the acts in question, which would render it invalid, I think the people are entitled to judgment for the reason stated.


author: Christiancy J. COOLRT J,: Campbell J.

text:
    George Duffield v. The City of Detriot.

      Street openings: Jury must make separate findings of damages and benefits, Where, under section 38, chapter 7, of the charter of Detroit, a jury in a street opening case is directed, where only part of a lot is taken, to “determine the benefits or enhanced value that will accrue from the improvements to the portion or portions not taken, and deduct the same from the damages or compensation they would otherwise award to the owner or owners,” there must be separate findings, so as to show what the entire jury consider the amount of damages, and what the amount of benefits; and a verdict simply ,,, showing the balance, after deducting the one from the other, is invalid. The jury must concur on both items, and report them.

      Recorder's Court: Recorder must make written finding of all questions acted upon in street opening cases, not appearing on the record. The statute giving jurisdiction to the Supreme Court to review all legal questions arising in the proceedings before the Recorder’s Court, and requiring a certified copy of all such proceedings to be returned on appeal, necessarily contemplates a written finding or report to be prepared and filed by the Recorder, setting forth all questions arising, and action had before him, which will not otherwise appear on the record. Upon the return of the proceedings on appeal, such report will then furnish the means of determining how far the action below was open to complaint, and no ruling can be reviewed which does not appear in that or in some other part of the return.

      Heard May 10th and 11th,

      Decided May 25th.

    Appeal from the Recorder’s Court in the city of Detroit.
    Proceedings were had in the Recorder’s Court to open a street running through appellant’s premises, and which would leave part of said premises on each side of said street.
    By stipulation, it was agreed that appellant’s counsel request the court to charge —
    “That if they found that it was necessary to take the property of said George Duffield for the intended improvement, that then in determining the just damages and compensation to be paid to him, they had no right to assess or apportion any supposed benefit that, in their judgment, might accrue by reason of said improvement, to the remaining portion of the property of said owner.”
    It was also stipulated “that the court declined and refused so to charge, and that to such refusal the counsel for said owner noted an exception. But that the court instructed the jury that in view of all the circumstances of the case, they should award the owner of the land proposed to be taken just damages and compensation, that in assessing such damages and compensation, they should consider all damages that might accrue to any portion of his lot or lots not taken, and might also determine the<s-benefits or enhanced value that woirld accrue from the improvements to the portion of his lot or- lots not taken, and deduct the' latter from the damages they would otherwise award the owner.”
    To which instruction the counsel for said owner noted an exception in writing.
    The jury brought in a verdict that it was necessary to take the premises described, and. awarded to appellant the sum of one thousand dollars as his damages and compensation, without stating the damages and compensation separately.

      D. jB. & II. M. Duffield, for appellant.
    1. The verdict of the jury is defective, because it does not show to the court or to the owner the amount of damage suffered, or the amount of benefits received.
    This is necessary, in order that the court may review aright the action of the jury on objections made to confirmation.
    It is also necessary, that the owner may learn how he is compensated, or how refused compensation.
    The principle is applied under section twelve, chapter seven, of city charter, as every man is thus advised of his proportion of benefits, and the total damages for the proposed improvement.
    The language of the law of 1865 clearly instructs the jury on this point, and their record - verdict must show that the requirements of the law have been complied with.

      When power is given a corporation to take property, it must he' strictly pursued, and ordinarily it must appear to he so, on the face of the proceedings. — 25 N. J. 413; 29 Id. Ill; 9 Wend. 251; 17 Id. 663.
    The record being defective, the other points made by counsel ^become immaterial.

      Wm. Gray and I. Cochrane, for the City.
    The verdict of the jury is not defective. They have followed the precise language of the charter. — Charter, p. 75, §14.
    It will be presumed that the jury have assessed the “just compensation,” that they have “ determined the benefits,” and “deducted the same from the damages.” The statute makes no requirement of them to report them. After determining and deducting, their duty relative to them ceases.
    The means by which they have arrived at the amount of compensation might gratify curiosity, sometimes even servé a useful purpose; but, ordinarily, courts appear to desire to have little to do with the mathematical calculations of the jury room — they only look to the final result.
    The form insisted upon in the objection has nowhere in this country been the practice, under laws precisely similar to the one in question, with one or two exceptions.
    The sole issue and real point in this case, was as to the amount of compensation to which the appellant was entitled. The verdict or report sets it forth. The issue is supported, and this is all that is required. — 8 Port. 66, 69; 3 Sneed, 17.
    The court can fully understand it; it is therefore good. 12 Ind. 275.
    The benefits are precisely in the nature of an offset; nothing need be stated in the verdict relative to offset.— 8 P, Mon. 227,

      Even where there is a substantial defect in the verdict, it will not be set aside, unless the party making the application would be injured by allowing it to stand. — 1 Morris, 18.
   Christiancy J.

We can not, I think, in the present condition of this record, properly make a final disposition of .this cause by reversing or afiirming the judgment and proceedings in the Recorder’s Court.

The only portions of the proceedings properly authenticated or certified are the verdict or report of the jury, the objections filed to its confirmation, certain affidavits, the order confirming the report, and the appeal. .

These are properly certified by the-clerk. The request to charge the jury, and the charge or instructions given, are not officially authenticated in any way. In fact, the clerk could not properly certify them, unless they were put in writing and filed. The clerk, however, has not attempted to certify either the request or the charge; but an attempt has been made to bring these before us by stipulation of counsel for the respective parties.

It is not competent for parties, by stipulation, to determine for review in an appellate court what w.ere the rulings or the judicial action of the judge, of which a review is sought. This information must in some way come to us under the sanction of the judge himself.

Again, it does appear that certain affidavits were filed in support of the objections to the confirmation of the report; and these are properly certified by the clerk, But it does not appear whether these affidavits were received and considered, or rejected by the court. His action in this respect must be stated by himself. The clerk can certify nothing which does not appear of record or upon the files. The statute giving this appeal is peculiar. It gives the right to a review in this court by appeal, but it confines the power of review to questions of law merely. (Sec. 28, chap. 7, of Charter.) It makes no express provision for the mode in which the proceedings are to be authenticated, except that provided in section twenty-two, which is, that “in case of appeal, as above, it shall be the duty of the clerk of said Recorder’s Court, forthwith, or as soon as practicable, to transmit to the Supreme Court a certified copy of all the proceedings in the case, which may be filed íd the office of any clerk of said court,” meaning, doubtless, that the certified copy may be filed in the office of the Supreme Court, which has more than one clerk. And yet it is evident, from the twenty-first and twenty - third sections, that the legislature intended to give to any party considering himself aggrieved, the right to review on appeal of any question of law which might arise in the course of the proceedings.

We think, therefore, the statute, by fair intendment, must be understood as requiring of the Recorder a special report or finding as to all the objections (filed) to the confirmation under section sixteen, and set forth in the specification of errors, on appeal under section twenty-one, and all his judicial action in reference thereto, except what already appeal’s upon the files; and that such report or finding should be filed by him with the clerk, and come up with the record.

Among the specifications of errors stated in the appeal, it is alleged that the Recorder refused to charge, as requested, against the assessment of benefits in reduction of damages, and that he did charge the jury that they were at liberty to determine the benefits or enhanced value that would accrue from the proposed improvement to the portion of said property not taken, and deduct the same from the damages or compensation they would otherwise award.

If this charge was given, it became the duty of the jury, under section thirty - eight, chapter seven (amendment of 1865), if that act is valid, to determine the benefit or enhanced value, and deduct the same from the damages; hut, unless the charge was thus given, they had no such duty to perform, or at least there was nothing requiring them to find specially the amount of benefits, and the general finding of damages was all that was required. But if the charge or instructions were given as stated, and this fact were officially before us, we might perhaps dispose of the case upon the question of the sufficiency of the report, which does not find separately the amount of benefits and the amount of damages, and, therefore, might have been concurred in by all the jury, without any two of them agreeing upon the amount of either.

But it does not appear by the record, in its present shape, whether such instructions were given. This appears only by the stipulation, which, as we are all agreed, can not be recognized as proper evidence of what the instructions were. If it be competent to determine by stipulation the abstract fact that instructions were given by the Recorder, this does not advance us a single step, as we can not from this infer what the instructions were; and they may have been directly the reverse of what is supposed.

The fact that but one thousand dollars damages were given, while the affidavits show the property worth seven thousand, may furnish an inference that the jury probably allowed benefits in reduction of damages. But this may have been without any instructions, or contrary to instructions, or because they took a different view of the value. But to reverse the proceedings upon the loose inference of such instructions, to be drawn from facts stated in these affidavits, would be to substitute these affidavits for the report or finding of the Recorder, which would be quite as objectionable as to substitute the stipulation for such finding or report. I see no proper justification for such substitution of either, while the report of the Recorder can so easily be obtained. Until we have such report, there' is, it seems to me, • no question before us upon which wé can ■•mak'e- a' final decision. •

As it was ■ the duty of the Recorder to have made and filed such finding or report, -I can see no. reason to doubt our power to require of him the performance of that duty now.

The appeal has been properly taken, and we ought not, therefore, to'dismiss' it- for any ’defect for which the appellant'is'notin' fault;- I think, therefore, an order ¡should be entered requiring a special, report .or finding by ..the Recórder as to 'all the matters above indicated, which should be filed with the clerk of that court, and. by him be certified to this court, as a part of the record, for such further action as the case may require.

Martin Ch. J. concurred.

COOLRT J,:

In this case objections are - made to the charge by the Recorder to the jury; to the rule of damages supposed to have been adopted by the jury; to the form of the verdict or report, and to the ruling supposed to have been made by the ‘ Recorder upon affidavits presented to him in opposition to the motion-for. confirmation of the, report., The record, as filed in this court, is exceedingly imperfect, and none of the questions are presented as they should be for our decision. ' v • ■

The charge made by the Recorder appears in the case in nb other way than by a stipulation of .the parties. It has been "frequently decided that parties eould not be allowed, m this way, to settle for themselves the. decisions made by. the courts — Niagara Fire Insurance Co. v. DeGraff 12 Mich. 10 — and the reason for this-is too- con- ■ elusive to warrant the practice being departed from in any case. 'Wherever the 'statutes provide for a review by this court of the decisions made by other tribunals, they contemplate that the proceedings of those tribunals should be placed before us in an official form; and it Would be unfair to other courts to hold them bound by rulings which the parties say have been made by them, but which might assume a different phase if stated in their'own words, and with such qualifications ' as may have' • accompanied them.

It is difficult to read thé provisions on the subject of opening streets in the Detroit charter without being struck with their obvious deficiencies. The provision for iilstrueting the jury in their duties would seem 'to leave it optional with the Recorder‘whether they-should be instructed to allow benéfits: Laws, 1865, p. 681; and there is'n'o provision which', in express terms, requires’the' Recorder to put in writing his 'rulings. As, however, an appeal is allowed to this court, by which the rulings of the ’Recorder in' matters of law are to be reviewed: Lazos, 1857, p. 124, §§21 to 25; and as the only return provided for is- of a certified copy of the proceedings, to be sent up by the clerk of that court — §22 — and as it is impossible for'the clerk to return the proceedings which show the ridings of the Recorder anterior to the final decisions, except as they may be put in writing by the Recorder hiinself, and placed on file, the implication from the statute that this must be done is so strong as to be imperative. 'The impossibility of protecting parties in their fights without doing this, is very' apparent in the present' case. We are informed of what is said to be the Recorder’s'charge by a stipillation;' but we can only infer "what the rule of' damages adopted was, and what wás thé' Recorder’s ruling upon the admission of affidavits in ojiposition to the confirmation of the report. Indeed, upon the "latter point the "parties are‘directly at variance.

It remains to be 'determined' whether we shall 'dismiss this appeal, order a further return, or' endeavor by an examination of the record as it now stands, to ascertain whether any error of’which the'appellant can justly complain satisfactorily appears." As the defects in the record are not such as the appellant is necessarily responsible for, the first proceeding would be manifestly unjust. To order a further return would be unavailable, as it is to be presumed the clerk has already sent up everything now on file. And although we might possibly go further, and require the Recorder to put on file such a report or finding as would show his own doings and rulings — and which-we think is necessary in these cases — yet, as this would inevitably result in considerable delay, perhaps to the public detriment, it may be well to examine the record further to see if we can dispose of the case properly as it now stands.

Amended section 38 of the charter provides that, “In assessing the damages and compensation * * * where only a portion or portions of a lot or lots are taken, the court may instruct the jury to, and in case of such instruction, the jury shall determine the benefits or enhanced value that will accrue from the improvements to the portion or portions not taken, and deduct the same from the damages or compensation they would otherwise award to the owner or owners.” A fair construction of this section will require the benefits or enhanced value to be assessed separately. The verdict should contain the finding of the jury upon the value of the land taken, and also upon the enhanced value of the remainder by means of the improvement; and their award of damages to the owner should be the diminution, if any, of the value of his estate thus ascertained. It is impossible that there should be a satisfactory review by the Recorder’s Court without such a finding; and what is quite as much to the purpose, it might well happen, if a general verdict upon the damages was sufficient, that twelve men would agree upon that, without being at all able to agree either upon the value of the land taken, or the enhanced value of the remainder; the two facts upon which the statute contemplates the jury are to unite. There is sound reason for requiring a separate report upon these points; for a more accurate and careful application of the judgment of the jurors may be looked for with confidence if they are to make each estimate by itself, so that it will be subject to separate examination and criticism, than if the two estimates were combined, and the difficulty in ascertaining the elements that entered into the computation in the minds of the jurors thereby, as it must be, greatly increased. This appears to us to be the clear intent of the section in question; and it is so just to all parties concerned, and so necessary to insure his rights to the person whose land is taken, that it can not be treated as mere matter of form. If, as might well happen, twelve men should be entirely' unable to agree upon the benefits that would be likely to accrue, but should nevertheless be able to agree upon the damages, because differing in like degree upon the value of the land taken, it would be somewhat difficult'.to say that they had determined “the benefits or enhanced value”'as the statute requires. The land owner is entitled to have the benefit of the judgment of the whole jury upon each element of the verdict; and there is no determination upon either point without agreement upon that separately.

I have already said, however, that the wording of the statute would seem to leave it with the Recorder to instruct the jury to deduct the benefits or not at his option. It is difficult to believe that the charter designed to leave an arbitrary power of this kind in the hands of any one; and if the charter is subject to this construction, a grave question might arise as to its. validity. Assuming, however, that it would be the duty of the Recorder to make a like charge in all cases where benefits' could be supposed to accrue, the question arises whether it appears from this record that such a charge was made in this case as would require the separate findings.

And upon this point I think the stipulation of the parties was competent. There is a manifest difference between stipulating as to what the rulings of a court were,- when the object is to obtain a review of those rulings, and stipulating, the same thing for some collateral purpose." In the ..first case, .justice to the court requires that its rulings be . reviewed . only upon its own report; but when they "áre not under review, and are only importánt as bearing upon , . some other fact, it is as competent to stipulate "in regard-to. them as it would be to show any other' collatérál circumstance in, the same ,way. The réáson which excludes the stipulation in the one case has ho application in the other; for the court, in respect to whose decision the stipulation is. made, has no concern with the inquiry involved if the correctness of its ruling is in no way called in question. Indeed it often becomes necessary to prove ’ ’the rulings of courts in the ordinary mode in collateral ’• inquiries.

It appears, then, that under the charge of the Recorder it became the duty of , the jury to assess the valúe of the ... property taken, and the benefits or enhanced value of the ..remainder of the..premises separately. This has not been done, and the proceedings I think should be reversed. The question then, remains whether the case shall be remanded. Th.e statute. — Laios, 185^, p. 125, § 24 —authorizes us, if the reversal is for an error “which it is practicable for the v Recorder’s court or. jury to correct with ’ due regard to the public, interest and, rights of individuals,” to remand the .. case for .such, correction. The particular error here in ques.tion might,.perhaps, be corrected on a remand; but as we can, not pass upon the other questions raised upon this record, and the statute prohibits a second appeal, justice to all parties seems to require that the proceedings be altogether set aside. We can do this with the less reluctance inasmuch as the affidavits returned on the appeal, and which stand uncontradicted, make a strong showing against the. correctness of the report, and lead to the inference that perhaps the jury took into consideration supposed benefits to tbe appellant wbicb ’could'not have been'allowed by law.

Campbell J.

. The appellant is owner of certain premises in Detroit, a portion, of which' has been taken for a public street, and the regularity of the proceedings is now brought up' oh appeal from the Recorder’s Court, where the jury’s verdict was confirmed.

The jury, by their finding, assess appellant’s damages at one thousand dollars, but do not show by what process they arrived at. that amount, nor whether it does or does .not include any deductions for supposed benefits. Until this appears in some way, unless the matter is made pertinent by the other proceedings-, it will be difficult and irregular to discuss any constitutional ípiéstion arising out of it.

The thirty- eighth section of chapter seven of the city charter contemplates that, where only part- of a lot of land ■is taken for a public improvement, the Recorder may direct the jury to determine the benefits or enhanced value that will accrue to the property not taken, arid deduct the amount from the damages or compensation they would otherwise award. If — as is, perhaps, the fair construction— this section leaves it to the Recorder to determine in what cases this discrimination is permissible — this determination, being judicial, must rest upon some existing or supposed rules or reasons, which ought to be announced, and the jury shoidd receive such general' directions and cautions as would be appropriate to guide them in coming to a right decision.

We have not before us the general or particular instructions which the Recorder gave, and-which the various sections of the charter contemplate he shall give upon the duties of the jury. The statute is express that the court shall instruct said jury as to their duties, and the" law applicable to the case." — Sec. 9. All we have is a stipulation showing that the Recorder did instruct the jury in this case to consider and deduct the amount of benefits or enhanced value from the damages.

This does not inform us, even if we could act upon such information by stipulation, of the precise character and extent of the instructions given to the jury. It is plain enough that the stipulation does not embrace the entire charge. We can not, upon such a showing, proceed to review the correctness of the Recorder’s charge, because, if he were to report his own doings, we might learn, what now we can not know, how far his instructions may have gone in furnishing to the jury a rule of action. But I do not see any good reason for declining to receive this stipulation as evidence that this case was committed to the jury as one arising under the thirty - eighth section, and as one in which the question of benefits was to be considered. While we can not review the correctness of this ruling in the form in which it is presented, I see no reason for rejecting this admission of it for any other purpose.

The question then arises whether the finding of the jury complies with the law. Upon this we have no doubt. The statute, in plain terms, requires .the jury to '■''determine the benefits or enhanced value," and “ deduct the same from the damages or compensation they would otherwise award to the ovmer or owners."

This involves a double duty, upon each branch of which the whole jury must come to an agreement. They must first determine the damages “ they would otherwise award,” without reference to any benefits. They must then determine how far the remaining portion or portions of property will be benefitted or enhanced. The sum of these amounts estimated for advantages will then be deducted from the gross damages, by a simple computation. The language of the section will not admit of any other construction. And it must be remembered that a jury in these cases does not merely make a general verdict of damages, but is required to report its proceedings at large upon other matters besides the computation or determination of single money results. The law contemplates that there may be mortgages, leases or agreements, which may cover all, or only parts of the property taken or affected, and, in such cases, compensation is to be apportioned among those interested, by the jury. — Sec. 11. It is quite manifest that if damages and deductions from damages are not kept separate, the rights of such parties could not be easily determined. The jury, for example, might, in a case like this, possibly reduce the damages very much below what would have been given if such benefits were excluded. Yet it might easily happen that encumbrances should exist on the portion taken, which did not cover the rest, and where, of course, the enhanced value of the rest would not aid the security. The same might be true as to leases. In such cases, the deductions which might properly reduce the compensation of the adjacent land owner, could not be made against the others, without great injustice. The statutory rule, therefore, can not be regarded as only directory, and a failure to comply with it vitiates the verdict. And for this reason the proceedings should have been set aside.

The statute provides that where the proceedings are reversed for errors which can be corrected, “with due regard to the public interests and rights of- individuals,” they shall be remanded to the Recorder’s Court, with directions that such errors be corrected. — Sec. 24. When the jury correct the errors, the verdict is to be confirmed, “without any further right of appeal."

If this case is remanded, without a review of the law questions (which are not before us in any proper shape for review), Jhe result will be that the jury will, by a new verdict, discriminate between damages and benefits, upon a„ view of the law which we can not, by means of another appeal, be enabled to consider. This would not be consistent with a due regard for the rights of individuals, to whom the law intends to secure full means of legal redress upon an appeal. "We should, therefore, content ourselves with reversing and annulling the entire proceedings, and decline to remand them.

Although the statute is silent upon the means of perpetuating the law questions presented and decided, it distinctly authorizes us to review all the law points, and it provides that this shall be done on a return made by the clerk of the Recorder’s Court. He can certify nothing but that which is written. It follows, of necessity, that upon all questions which arise, and are disposed of, the parties have a right to require the written statement of the Recorder, to be placed on file. Whether this is put in the form of a bill of exceptions, or'case made, or otherwise, is not, perhaps, very material, but it must be drawn up in some reliable and authentic form, certified by the Recorder.

In the absence of such a statement, we are precluded from considering any of the important constitutional and statutory questions arising on the correctness of the supposed rulings of the Recorder.

I think the proceedings should be reversed, with costs.

The Court being thus equally divided upon the jurisdictional question, Cooley J., in order that the case might be disposed of, assented to the course suggested by Christiancy J. that a further return be made by the Recorder, showing the ruling and proceedings not now regularly appearing in the record.


author: Cooley J.

text:
    Charles Dawson v. The Danbury Bank.

      Validity of title, by foreclosure of first mortgage: When assailed by suit on second mortgage, special averments must be set up. A title obtained under the ’foreclosure of a first mortgage is presumptively prior in right to a second mortgage, and its validity can not be assailed in a suit to foreclose the latter, without special averments showing why it ought to be postponed.

      Foreclosure suit: General averment that defendant is a subsequent purchaser, etc., relates only to his subsequent encumbrance. Where the second mortgage covered additional lands over which it was prior to an encumbrance held by the party claiming the former premises under the first mortgage, and said party was made a defendant under the mere general averment that he held or claimed some interest in the mortgaged premises or some part of them as subsequent purchaser or encumbrancer or otherwise, he may properly treat such averment as relating only to his subsequent encumbrance in the other lands, and his title to the first premises will not be affected by the decree . Wurcherer v. Hewitt, 10 Mich. 453.

      Possession of land by grantoi', when notice of rights in him, to third parties. A person remaining in possession of lands which he has conveyed by a mort - gage which has been foreclosed against him will be presumed to hold subject to the title so created, and his possession will not be constructive notice of any other interest or title which he may have acquired, but which does not appear of record in him. — Affirming Bloomer v. Henderson, 8-Mich. 395.

      Heard May 7th and 8th.

      Decided May 25th.

    Appeal in Chancery, from Oakland Circuit.
    This was a bill to quiet title.
    The case was heard on bill, answer and proofs, and a decree rendered for complainant.
    The facts are stated in the opinion.

      G. V. N. Lothrop and M. E. Crofoot, for complainant.
    1. Where a party represents a prior lien derived from the same source, he and his grantees are proper parties to a foreclosure bill. — Story JSq. PI. §186 and notes; Id. 193 and notes; Mill, on Mort. (3d ed.) p. 159, §70; 11 Wheat. 304, 306; 11 Paige, 28, 29, 39, 40; 3 Johns. Gh. 459.
    2. The defendants claim that none but subsequent encumbrancers are proper parties defendants to a foreclosure suit, and that nothing but the interests in the equity of redemption can be litigated and settled in such suit.

      The following are among the eases cited: — 6 Paige, 635; 2 Barb. 23; 3 Mich. 448; 2 Seld. (6 N. T.) 82; 5 Id 502, 516.
    In all of the above cases the question sought to be raised, and which the courts held could not be considered, was the litigation of the title of a third party set up in hostility to the title of the mortgagor.
    3. Besides the question of these mortgages being cut off by the decree in the Moss case, the question of their being an equitable lien on the premises as against the title of this complainant notwithstanding the decree, arises.
    We insist that whatever title passed to Drake at the foreclosure sale was but passing the title to Stewart, the mortgagor of Moss and others. „
    Drake purchased for Stewart, and as his agent.
    The evidence shows that no possession was ever taken by Drake, or by Baines; nor was there any possession surrendered by Stewart, or taken from him; but he continued in possession of the premises claimed, as owner, as fully after the deed to Drake as before.
    His possession and ownership was notice to all the world of his title. Drake could give no mortgage while Stewart was thus in possession, as owner, that could defeat Stewart’s title. Nor could he make a deed, nor could Baines make a mortgage that would confer equities against the possessor’s real title.
    The consideration expressed in the assignment to the bank was merely nominal, $1; and defendants claim they were assigned to secure a pre-existing indebtedness.
    Whatever title stood in Drake as purchaser at sale, or Baines as his grantee, was the title of Stewart, the mortgagor; and he could not himself, nor could his grantees, trustees or agents, hold an outstanding title to defeat the mortgage title.
    ■And to this point we cite, 12 Mich. 346.

      Walker and Went, for defendants.
    1. Defendants are not concluded by the decree in the foreclosure suit of Moss and others.

      a. That suit was not a proper place to litigate the claims of Baines and Litchfield to the Pontiac Lot.
    Their claim was prior to the mortgage of Moss and others, because derived through a prior mortgage, and it is well settled that a foreclosure suit is not the proper place to litigate claims to the mortgaged premises prior to the mortgage.— 3 Mich. 448; 13 Icl. 409.
    The bill- made them parties only as subsequent encumbrancers.
    ■ b. Litchfield did not, in his answer, aver the existence of the mortgages assigned to him on the Pontiac Lot, or claim any rights thereunto.
    Baines did aver the conveyance from Drake to himself and the mortgage assigned to Litchfield, and sought to defend on this account, but clearly his action did not bind Litchfield.
    The evidence shows that Litchfield’s solicitor knew nothing of the defense set up by Baines. This defense ought not to have been litigated in that suit. Litchfield did not litigate it, and did not know that it was litigated by his co-defendant. Hence, so far as Litchfield is concerned, the case stands as though Baines’ answer had not been put in.

      c. Litchfield was not bound by the decree as to the mortgages held by him upon the Pontiac property because the question of their priority was not in issue between him and complainants in that suit.
    The general rule is, that a decree is conclusive upon the parties to a suit only as to the point in issue. — 12 Barb. 184; 14 Conn. 61.
    And this doctrine is applied to cases like the one at bar in the following: 5 Beld. 502; 13 Wis\ 10; 14 Id. 509 4 Hoisted Oh. 571.

      d. If Litchfield were bound by the decree in the former suit, still defendants would not be. They' purchased during the pendency of the suit, and are bound by everything in the Ks pendens filed, but this gave them notice only that a bill was filed to foreclose a mortgage subsequent to theirs, and the bill itself could have given them only the same notice. They could not have known that the validity of the mortgages they purchased were involved in that suit.— Comp. L. p. 1011, §29.
    2. The facts appearing in the case do not entitle the complainant to the relief asked, or to any relief.

      a. Admitting that it is proven that Drake was the mere agent of Stewart in purchasing the premises at the sale under the Cooper foreclosure, still the purchase money was paid by Dey, and the mortgage was given as security therefor.
    As against Dey, complainant had no equity more than against Cooper. Clearly, Dey, having paid a mortgage which was a lien upon the premises prior to complainant’s title, was entitled to hold his mortgage against complainant’s title, and defendants having, through Litchfield, received Dey’s mortgage, have all his rights.
    ' b. Defendants are bona fide purchasers of both mortgages. They gave up for them other valuable security. They received them without notice of complainant’s alleged rights. The record shows these mortgages to be prior to complainant’s title.
    Defendants took these assignments subject only to those equities which existed between the mortgagors and mortgagees, but not to an unknown equity between the mortgagors and those from whom complainant’s title comes. It was enough for defendants that they found the legal title to have been in the mortgagors, respectively, when the mortgages were made, and knew of no equities to the contrary.— 8 Mich. 395. .
   Cooley J.

The complainant filed his bill to quiet the title to certain premises formerly owned by N. P. Stewart in the present city of. Pontiac.

The facts upon which legal questions arise are the following :

In July, 1855, Stewart gave a mortgage-on the premises to Cooper, Storm & .Smith, which was foreclosed in chancery, and a decree for sale made September 27, 1857. Notice of lis pendens was- duly filed -in this suit.

May. 21, 1859, Stewart gave another mortgage to Moss, Medbury & Duffield, covering the Pontiac Lot, and also a large amount of other real estate.

June 16, 1860, the Pontiac Lot was regularly sold under the Cooper, Storm & Smith decree, and bid off by Morgan L. Drake who had been acting as attorney for Stewart, and who undoubtedly bid for Stewart’s benefit, and with an understanding that he should hold in trust for him. The sum bid was $1,050, which was procured from Alexander H. Dey, to whom Drake gave a mortgage- to secure its re-payment. It would appear from Dey’s testimony that Stewart also gave- collaterals for this loan.

July 20,1860, Drake deeded the Pontiac Lot tb Baines, a brother-in-law of Stewart, and took back from him a mortgage conditioned for the -payment of the Dey mortgage, and also four negotiable promissory notes of $1,000 each, the first of which fell due one -year from date. We have no doubt the giving of the deed and the taking’ back of the mortgage were by direction and for the benefit of Stewart.

Stewart, during all this time, was in possession of the premises by tenants. Being indebted to Elisha C. Litchfield in a large sum, an arrangement was made by which the Drake and Baines mortgages were assigned to Litchfield as collateral security; the loan to' Dey being paid .by either Stewart or Litchfield — the evidence leaves it uncertain which. These assignments were made, one on the same day with the Baines mortgage, and the other a few days before, and it is highly probable that Litchfield was fully aware of the fact that the title to the lot in the hands of Drake and Baines was held in trust for Stewart.

August 30, 1860, Moss, Medbury and Duffield, filed their bill in chancery to foreclose their mortgage, making Drake, Litchfield and Baines, defendants, under the general allegation that they had, or claimed to have, some interest in the premises as subsequent purchasers, incumbrancers or otherwise. Litchfield, it appears, actually claimed rights in' the equity of redemption in.other parcels covered by this mortgage, and he filed his answer assailing the validity of the mortgage, but making no- mention of his interest as assignee of the Drake and Baines mortgages.

Baines also put in an answer, by which he set up and relied upon the title acquired by Drake at the foreclosure sale. The two answers were filed by different solicitors, and there does not seem to have been any concert of action in the defense. The court sustained the mortgage, decreed a sale of the mortgaged premises to satisfy it, and, by a special clause in the decree, adjudged the Drake purchase to have been for the benefit of Stewart, and the title to the Pontiac lot, in Baines’ hands, to be subordinate to the rights of complainants. The solicitors for Litchfield appear not to have been aware of this clause until the time' for appealing had expired, and it is not shown that they were aware of the issue which had been made by Baines, by his answer. Under this decree, the premises were subsequently sold and bid in by complainants, who afterwards sold the Pontiac lot to the present complainant.

While these proceedings were pending, Litchfield transferred the Drake and Baines mortgages to the President, Directors and Company of the Danbury Bank, for a valuable consideration, and we see no reason to doubt that they became purchasers in good faith. On their taking steps to foreclose one of these mortgages, the present bill was filed to quiet the complainant’s title as against them.

The complainant insists, first, that the proceedings and decree in the Moss, Medbury and. Duffield foreclosure suit, are a bar to any further claim by Litchfield or his assignees under these mortgages. If this position is correct, it must result either from the mere fact of Litchfield being made a party, or from the special clause inserted in the decree, and which has been referred to.

From the facts recited, it will be seen that Litchfield was not properly made a party in respect to the Drake and Baines mortgages, if the purpose was to obtain a decree postponing them to the mortgage then in suit. The title under which those mortgages were given, was, prima facie, paramount to the Moss, Medbury and Duffield mortgage, and if they sought to postpone them to their own, it would be necessary to make special allegations, setting forth the facts which gave the mortgage then being foreclosed an equitable precedence. This is a well settled rule of chancery pleading, and rests upon sound reasons.-— Wurcherer v. Hewitt, 10 Mich. 453. In the absence of such allegations, the validity of the mortgages held by Litchfield, as against that to Moss, Medbury and Duffield, was not in issue, and could not be affected by the decree. We are not called upon to say whether this would be different if Litchfield had been privy to the defense made by Baines, as nothing of the kind is shown in the case, and he was certainly not bound to take notice of any other issue than that joined on his own pleading. His own defense was held to be unsustained, and he was to presume that the court would decree accordingly; but he had no right to suppose any clause would be inserted in the decree affecting his rights, which was not warranted by the issue between him and the complainants. The fact that he whs present, by counsel, when the' sale to Moss, Medbury and Duffiéld was confirmed, has no significance, as’’the -bale could not be more far-reaching in its scope' tháh the decree, blit, like that, must have been made subject- to his-'rights under the two mortgages so assigned to • him. !::■••=••

But "complainant insists, secondly, that as Drake’s, bid was for the' benefit ' of Stewart, the mortgage given to Moss,' Medbury and Duffiéld, was not' affected by It, and thé'two ffiórtgáges’ given by Drake and Baines, while they held- the title'' for Stewart, stand' on no different footing than if they had been given by Stewart himself, and must, in • equity, be regarded as subsequent’ incumbrances by Stéwai'tl ■ "• ' ’' '■ "i'

"If the Drake and Baines mortgages were still held by Litchfield,1-and’ We should 'be Satisfied that the evidence shows —asj perhaps', it does —that Litchfield was aware, whén‘he took- the' assignment of "these' mortgages, that Dráke’:had bid in the premises'for Stewart’s benefit, and paid -the bid with money borrowed by or' for Stewart, it is probable wé' should havé no' difficulty in holding that the’1 Drake :bid-was'fraudulent as to the Moss, Medbury and'' Driffield mortgage, and tó be regarded in equity 'for the' protection of their rights as a payment' of the prior moi-tgage' to"Cooper,'Storm'and Smith. But it is not claimed "that the defendants in the present suit, at the time they took an assignment' of the Drake and Baines mortgaged, had ’ any knowledge of the circumstances under which "Drake had acquired 'thé' title, or that he, or Baines after' him, held it' in any other way than for his own benefit. No fra'ud, either actual or constructive, can, therefore, 'be charged Upon these defendants. ' So far as appears, they' acquired title to'the mortgages in good faith,' anil in reliance Upon' what appeared to be a regular title of record. Théy were not-, therefore, to be affected by any equities, not attaching to the mortgages in favor of the mortgagors, but existing against their mortgagors in favor of third persons. The suggestion that Stewart’s possession of the premises was notice to them of defective title, can have no force, under the circumstances of this case. There is no claim that Stewart, while so remaining in possession, claimed rights adverse, to the Drake and Baines mortgages; and the bank officers, if they had inquired of him on the subject, would probably have been informed by him that he did not. At any rate, they had a right, to suppose that his possession was subordinate to the right of Baines, who appeared, by the record, to have acquired the title of Stewart through the first foreclosure. It was decided in Bloomer v. Henderson, 8 Mich. 395, that the possession by a grantor of the premises which he had conveyed, was no. notice of any claim adverse to his conveyance; and the rule is not different, where his title is divested by judicial sale, instead of his own conveyance.

The decree of .the court below was erroneous, and it must be reversed, with costs, and the.bill dismissed.,

The other Justices concurred.


author: Campbell J.

text:
    Louis M. Smit v. The People.

      Fraudulent assignment, evidence of. A sudden assignment of property to a brother, made after demand of payment of a debt, under fear of an attachment, and a refusal on the part of vendor and vendee to give any information concerning the terms of the transfer, will justify an inference of fraud.

      Heard May 21st.

      Decided May 25th.

    Certiorari to T. K. Gillett, a Circuit Court Commissioner for Wayne county.
    Plaintiff in error was found guilty by the Commissioner of fraudulently disposing of his property, against the provisions of the “Fraudulent Debtor Act”/ and this writ was sued out to review the proceedings thereon.

      P. O. HolbrooJc, for plaintiff in error.

      Newberry & Pond, for the People.
   Campbell J.

This is a certiorari to review the finding of a Circuit Court Commissioner, holding Smit guilty of fraudulently disposing of his property, against the '•'•Fraudulent Pebtor Act”; and it is claimed the complaint did not make out such a case as to give the Commissioner jurisdiction.

It appears, from the showing, that Smit, being called upon by an agent of his prosecuting creditors for an unpaid balance of five hundred and fifty dollars, stated that he then had no money to pay, but had on hand a stock of nine thousand dollars, while he owed between four and five thousand. Upon being requested, he refused to make payment in goods. The next day, hearing Smit had disposed of his property to his brother, the same agent went to the store and found the brother in possession, claiming title by purchase and payment, but refusing to give any information. The day after that, Louis M. Smit was also found, and refused to state the -terms of sale, or to turn over any of the proceeds, and also said he sold out because he feared the agent would sue out an attachment for the debt.

We think this is a very plain case of fraud, which, if true, it would be difficult to extenuate. Nothing but a fraudulent design could be inferred from the facts. The Commissioner was authorized to proceed, and his action should be affirmed, with costs.

Martin Ch. J. and Cooley J. concurred.

Christianoy J. did not sit in this case.