text:
    Joseph Delavergue vs. Hiram C. Farrand et al.

    Section 21 of i lie Iraultriipt law entitles a pereo» who lia» be™ rleelnrcd a bnnlmipt to lie relieved from defending suits 'for debts provable in biinlmiptoy pending the qiiebtion of his-discharge.
    2, Application for stay of proceeding against him for the recovery of such a debt should be-granted by tin* Court in which such suit is being prosecuted.

      Saginaw Circuit Court,

      November 29, 1869.
    Motion for-stay of proceedings pending tire question of one-of several defendants discharge as a bankrupt.

      J. J. Wheeler for Plaintiff.

      Peck & Clark for Defendants.
   By the bourt,

Sutherland, J.

Section 21 of the Bankrupt Act provides that “no creditor whose debt is provable under this Act shall be allowed to prosecute to final judgment any suit at iaw or in equity therefor against the bankrupt until the question pf the debtor’s discharge shall have been determined.”

The object of this provision, as expounded by Benedict, J.,in the District Court for the Eastern District of New York, is-to give the bankrupt the “option to endeavor to obtain a discharge in bankruptcy, and, failing in that, to defend all undetermined actions.” It is said the Act declares that no such suit shall be allowed to proceed until he has had a reasonable lime to obtain his discharge, if he can, and requires -the Bankruptcy Court to stay such a proceeding in whatever Court it may be pending. 6 Int. Rev. Rec., 223.

The claim sued for is obviously one provable under the Act,p,nd, therefore, it would be a matter of course for the Federal Court to enjoin the plaintiff, if applied to. Under such circumstances it would seem to be a proper and simple practice to apply for such stay directly to this Court. This is obviously so if, as remarked by Judge Blatchford -in the case of Rosenberg, 2 Bank. Reg., 81, the provisions of section 21 “ are addressed quite as much to the Courts oí the State as to the bankrnjitcy tribunals, and are to be applied and enforced by the former quite as much as by'the latter.” If not legally binding on the State Court it is morally so, and to prevent circuity ought lo be fb 1*.. .lowed when a proper application is made.

My attention has been directed to a great number of cases in which injunctions have been granted by Courts in bankruptcy) to stay proceedings in State Courts. The practice would appear' to be general. Only two cases have come under my observation holding that the Federal Courts do not possess that power. In re, Campbell, 16 Am. L. Reg., 100, and in re. Burns Id, 105, In a note to the case of Schnepf, Id., p. 208, these rulings are critipised and doubted.

Whether the Federal Courts have the power to restrain the creditor or not, the right of the bankrupt -is'clear to have suite stayed pending the question of his discharge, if he proceed Vitljt diligence.

Stay granted as to the defendant who has been declared a bankrupt.


source: Caselaw Access Project

author: Sutherland, J-

license: Public Domain

text:
    Richard Ostram, Appellee, vs. Robert McQueen, Appellant.
    1. If a creditor of a debtor garnishee bufo re a Justice, bring an action for tho >011110 debt pending the garnishee suit, und tho trial taken placo (titer judgment against Hie principal debtor • under generalísimo, the garnishee will not bo permitted to defeat a wovury of unj surplus over undftho vo tho amount necessary to satisfy such judgment.

      % Tho pondoncy of the garnishee proceedings i|t the commencement of tin/suit can only W avuiluble, [fat all, by ploaiiutbatwuont.
    3. If a J ustiee charge n jury erroneously, the error cannot be taken advantage of by appeal.

      Saginaw Circuit Court,

    1869.
    • The defendant was garnisheed by one Worden, ás the plaintiff’s debtor prior to the commencement of this suit, and that, proceeding was pending when this suit was instituted. The defendant disclosed an indebtedness as garnishee to the amount of $25,. and the parties admit that that was the amount of hi* liabilities,' and he suffered judgment as such for $19 18, Thi* suit was afterwards brought to trial and the plaintiffs recovered a-verdict for $13 12, the Justice having charged the jury, if they , found defendant indebted for a larger sura than the judgment against him as garnishee, they might find for the plaintiff 'for such excess.

      D. F. Foot for Plaintiff.

      T. Brousseau for Defendant.
   By the Court,

Sutherland, J-

The pendency of the proceedings against defendant as garnishee, when this suit was brought, is insisted on as a bar under the'general issue. § 4796, C. L.

As the plaintiff’s right is limited to reeoyey the excess and he is at liberty to recover that at same time, (§4797, C. L.,) the pendency of the proceedings against the defendant as garnishee is at most only a temporary suspension of the right of action. Is this a good defense to the merits ? I think it should have been pleaded in abatement, for it only suspends the right of action, and does not take it away altogether. Green’s Pr., §§ 325, 350; Percival vs. Hickey, 18 John., 257; 19 Wend., 207; 2 Mich., 178.

The objection ceased to have any force when the judgment was rendered.

If there was error in the charge of the Justice to the jury, it cannot be taken advantage of on appeal.

Judgment for plaintiff.


author: Sutherland, J.

text:
    School District vs. Township of Albec.
    A summons made returnable on a given day, but. not stilting the year, may bo amended’after its return by inserting the year, or may be treated as though the year had been specified. When aregularterm of Court isadjournedtoafutuieday,the time interven ngis to be deemed a continuance of the term, for return of process.

      Saginaw Circuit Court,

      June, 1869.
    In this ease the summons was issued May 1,1869, returnable “ 17th day of May ‘‘ The February "term adjourned from May 1 to May 31.
    Defendant’s counsel move that the summons be quashed, for the reasons:
    1. The summons does not state the year when it is returnable.
    2. The writ is not returnable on the first Tuesday of May, nor any day in term.

      Gaylord & Ranchett for Defendant.
   Sutherland, J.

The- first objection may be removed by amendment, or may be read as returnable May 17, 1869.

The second objection assumes what is not true in fact. The term continues to final adjournment, for return of process.


text:
    Enoch A. Rogers vs. Andrew Bates and William G. Dunham.
    D. cut posts on State lands and piled them there. While he was so engaged R. bought the land, and he afterwards replevied the staves cut before as well as after the purchase. Held, - he. had no title to those cut prior to his purchase. D.’s possession conclusively admitted by bringing replevin. Such possession evidence of title against a 1 persons except the true owner. No confusion of goods. Hule of damages.

      Alpena Circuit Court,

      October 18, 1869.

      I. II Stevens and S. O. Draper for Plaintiff.

      J. B. Tuttle and T C. Grier for Defendants.
   By the Court,

Sutherland, J.

There is no evidence against defendant Bates, and there must be judgment in his favor for costs.

Defendant Dunham out and piled, on lands belonging to the State, a quantity of cedar posts. They were out and piled immediately before and after the purchase of the land by the plaintiff, on the 15th day of August, 1867. The posts were placed in one long pile. Those exit after the plaintiff’s purchase were added at one end, and were not otherwise mixed with the others. The plaintiff saw the pile of posts on the 14th day of August, and estimated the number piled at 2,500. After his purchase he replevied, in this suit, all the posts, 4,400 in number. He sold the posts at seven cents a piece, by count, and that was proved to be tbeir value loaded on a vessel. They may, therefore, be regarded as uniform in quality and value. *

The plaintiff, at the commencement of his suit, was the owner of those posts only that were made after the date of' hi purchase. The others belonged to the State, if the State electe to claim them; or, they would become the property of the fendant if the State should prosecute him and obtain satisiac for the trespass. He claims to be in possession, and he had performed such acts as would authorize the inference of actual possession. The plaintiff, moreover, by bringing replevin, conclusively admits that possession.

P- 'ssession is good evidence of title against all persons except the owner. Wincher vs. Shrewsbury, 3 Scam., 283.

As against the defendant, however, the plaintiff could claim all the posts if there had been such admixture, by the defendant’s fau!t, as would prevent the plaintiff from taking liis own in any other manner. Stevenson vs. Little, 10 Mich, 433. But the posts were of even value, and the plaintiff was informed of the location and number of the posts cut prior to his purchase. He was able to distinguish, approximately, the identical posts which he could claim as his own.

I conclude, therefore, that the plaintiff is entitled to recover in respect to 1,900 posts, and must fail as to the remaining 2,500. For the value of this latter quantity judgment must he rendered against him.

The defendant’s posts having been taken on the writ by wrong, he is entitled to have them returned in any better condi.tion in which they may he at the time of judgment either by work on'them, by transportation, or by improvement of the market value.' They having been shown to he worth seven cents a piece on a vessel to which they were actually conveyed by the plaintiff, the defendant is entitled to recover at that rate, with interest.


text:
    Martha H. Janes et al. vs. Laban Beach, Principal Defendant, Sam’l Yawkey, Garnishee.

    The principal defendant, within fbur months after the service of the writ of garnishment, was . declared a h.uikruptonhisown petition. ü&W, that the appointment of an assignee should be presumed. Held, alse, that such bankruptcy dissolved the power of garnishment.

      Saginaw Circuit Court,
    1869.

      D. W. G. Gage for Plaintiff.

      C. 3. Gage for Garnishee.
   By the Court,

Sutherland, J.

The garnishee filed his petition in bankruptcy on the 30th day of Decerñber, 1868, less than four ^months after service of the writ of garnishment. In the meantime, judgment against the principal defendant for $802 82 was rendered. It does not appear, unless by intendment and implication,- whether an assignee in bankruptcy has since been appointed. That proceeding follows, of course, the adjudication-that the petitioner is a bankrupt. If the proceedings were interrupted and superseded after such adjudication, it devolves on -the party to prove it who asserts and relies on it.

It will be presumed, in the absence of showing to the contrary, that the proceedings which follow, of course, after those proved took place, include the appointment of an assignee or ^trustees.

' The question then arises whether the plaintiff in this suit has .such a vested right in the moneys due from the defendant that it could not be displaced by those proceedings. If the plaintiff’s right 'rests on an attachment- or mesne process it is displaced. The lien which the plaintiff acquires by his proceeding arises by the service of mesne process, and it springs into being and subsists during the suit on the same contingency and for the ¡same purpose as a lien acquired by the seizure of chattels on a Writ of attachment. It is an análogous right, and it rests on a •proceeding which may be appropriately denominated a seizure .or attachment. In the service of a writ of that name under our practice the officer suspends by manual interference the defendant’s possession and control of the tangible property on which it operates. On the writ of garnishment the officer summons •the defendant, and that act, by the force of the statute, suspends in like manner his control over and power to collect the moneys .on which that proceeding operates. The proceedings being identical in purpose and effect, it is immaterial, in the sense of •the federal statute, that different names are applied to them by ■the local law.

The proceedings in bankruptcy dissolve the attachment in favor of the representative of the estate by force of the Act of «Congress. No intervention by him in that suit is essential to It hat result. When it takes place the fund falls back into the bankrupt estate, and would be unaffected by a judgment between a bankrupt and a third person assuming to direct it.

§ 14 of the Act of Congress does not save any liens on chosen inaction acquired by service of mesne process; and the priority of such a lien less than four months from the commencement of the bankruptcy proceedings does not avail if it is a lien cnr right, as the plaintiff’s is held to be, arising from an attachment on mesne process.

Judgment for defendant, with costs incurred subsequent to1 the plea puis darrien.


author: By the Court, Sutherland, J.

text:
    The First Congregational Society of East Saginaw vs. Humphrey Shaw et al.

    Motion to set aside a judgment on dofnultfor irregularity.
    1. Service of declaration and notice of rule to plead is sufficient to put a defendant on inquiry in' respect to irregularities appearing on the fuco of the record,and lie should apply without delay on learning that judgment has been rendered to set it aside.
    2. A subsequent request for time and promise to pay is a waiver of objections for the irregularity,-
    3. Amistake in the name oftheplaintifF after such waiver may be corrected.

      Saginaw Circuit Court,

      June, 1869.
    Motion to set aside judgment on default for irregularity. Declaration and notice of rule to plead in clue form served, but rule to plead defective — the word “Society” in the name of plaintiff, and name of defendant Aiken, in the title of the suit, omitted. After the judgment was entered and execution issued — about the 9th of June inst. — defendant requested delay and promised to pay the debt on the 26th, of June. The request was acceded to. On the 26th June this motion made.

      D. W. G. Gage for Plaintiff.

      Geo. K. Newcomb for Defendants.
   By the Court, Sutherland, J.

The service of the declaration- and notice of rule to plead was sufficient to put the doiendants on inquiry in respect to irregularities appearing on the face off the record. Hindes vs. Tubbs, 10 John. R., 487. The defendants, on learning that judgment had been taken, were bound to-apply without delay to set aside the irregular proceedings. Fletcher vs. Wells, 6 Taunt., 191; 4 Mich., 186; Green’s Pr, 439. The request for time and promise to pay then made were a waiver of the irregularity. Rawes vs. Knight, 1 Bing., 132.

Motion denied, with costs.

The rule to plead/ may be amended nunc pro tunc Jackson vs. Young, 1 Cow, 131; Close vs. Gillespy, 3 John., 525; Chichester vs. Cande, 3 Cow., 39; Norvill vs. McHenry, 1 Mich., 227.


text:
    William L. Webber, Administrator of the Estate of Stephen D. Sayre, deceased, vs. Elijah Stanton.
    Ip a plaintiff die between the trial by the Court and judgment, and the judgment is entered of the actual date when rendered, it is not void. Suit by the personal representatives of the deceased plaintiff mq.y be brought on it, ,an’d it wiU be held as conclusive as though it had been entered, nunc pro tunc, as of the date of the trial.

      Saginaw Circuit Court,

    1864.

      Wm, L: Webber in Person.

      A. G. Maxwell for -Defendant.
   •By the Court,

Sutherland, J.

This action js brought, to-r'e-cover the amount of a judgment in this Court rendered Decern-: her 7,1855, and of a decree for costs made in Chanceiy December 8, 1854, against the defendant in favor of Stephen D. Sayre, now deceased. • No question is raised except as to the plaintiff's right to recover on the judgment. Sayre died on the day suciceeding the trial before the Court without a jury, and two days before the rendition of the judgment.-

It is insisted for the defendant that the suit abated on the death of Sayre, and that the judgment, being rendered ' after-wards, is void.

There is no doubt that by the common law a suit abates on the death of a sole plaintiff before judgment. 2 Tidd's Prac., 116; Hildreth vs. Thompson, 16 Mass. R., 191.

But as the rule was téchnical and served no substantial purpose of justice in cases' in which the death occurred after the commencement of the term in which the trial was, had, Courts have endeavored to save to the successful party the fruits of his recovery by resort to the fiction of making all judgments bear date of, the first day of term. 1 Burr. Pr., 281; 18 Wend., 653; 7 Cow., 281; 7 Term. R., 31. Judgments were, however, fjre- ' quently delayed until after the term :• then, to prevent the effeot of the death-of a party in abating the suit, Courts were accustomed to allow the judgment to be entered nunc pro tunc, as of the date when the deceased party was living, if the party recovering was then entitled to judgment. Earle vs. Brown, 1 Wilson, 302; Spaulding vs. Congden, 18 Wend., 543; Ryghtmyre vs. Durham, 12 Wend., 245; North vs. Pepper, 20 Id., 678; 1 Bac. Abr., 15; Tooker vs. Duke of Beaufort, 1 Burrows, 147; Trecawley vs. Bishop of Winchester, Id., 221, 226; Mayor, &c., vs. Berry, 4 Id., 2277; Goddard vs. Bolster, 6 Me., 427; Toulmin vs. Anderson, 1 Taunt., 385; Mackay vs. Rhineland, 1, John. Cas, 410; Bridges vs. Smith, 8 Bing., 28; Green vs. Cobden, 4 Scott, 486; Key vs. Goodwin. 1 Moore & Scott, 620.

The application to have the judgment so entered was addressed to the discretion of the Co'urt, and unless within the statute of 17 Charles II, was refused, if the delay was caused by the laches of the party or his representatives, or if some prejudice would arise to the other party to which he otherwise could not be subjeot. Freeman vs. Trunah, 12 Com. B., 406; Wilkes vs. Perks, 5 Man. & Gr., 376.

The judgment proved in this case was delayed wholly by the not of the’ Court. It was, therefore, an undoubted case for allowing the judgment to be entered anterior to the plaintiff’s death. It was not so entered; nor is it within the statute of Charles II., as'the death did not occur between verdict and judgment, unless the doctrine of relation to the first day of the term is in force.

The judgment roll, of that system of practice which recog- ' mized that fiction of relation, showed no other date than the first day of the term; and to prevent one party gaining a prefe-' rence over another by reason of the Court’s inability to try and decide all the cases in one day, and to overreach fraudulent dispositions of property on which the judgment would be a lien, or out of which it could be satisfied, all judgments, in the absence of any other date, are deemed to have been recovered on the first day of the term. Couth vs. Walker, 2 Leigh, 268; Withers vs. Carter, 4 Gratt., 407.

That doctrine, however, was held not to apply after a statute had been enacted requiring the date of the judgment entry to be expressed, (Lambirth vs. Barrington, 2 Bing. N. C., 149,) nor did it ever apply, it would seem, if the state of the case was such, for any reason of which the Court was judicially cognizant, that judgment could not have been rendered on the day on which it would otherwise bear date by rotation, (Swan vs. Broom, 8 Burrow, 1595; Wynne vs. Wynne, 1 Wilson, 35, 42,) or if there was any memorandum, or the like, in the record showing another date. 3 Salk., 212; Miller vs Bradley, 8 Mod, 190.

It is obvious, therefore, that since our record consists of the journal entries and files, each of which has a recognized date, no other can by any fiction be substituted..

Hence, the validity of the judgment in question depends on whether, if rendered at a time when the Court would deem it proper to render it, even though advised then of the death, and for regularity would order it entered nunc pro tunc, it shall be held irregular because entered at the actual date of the determination ; and if irregular, whether it is void or only voidable.

> If Courts have no jurisdiction, by reason of a party’s death, to render a judgment, then it. ought to follow, and would, as a necessary consequence, that they would refrain from rendering it if the death were seasonably suggested. Courts do not, however, decline, in such cases, to pronounce judgment. Though they have been accustomed to affix another date to the adjudication, yet that ante dating should not be regarded as done to hide under the sanctity of a judicial record, which cannot be contradicted, á fatal defect of jurisdiction. It would be a reproach to any Court to usurp authority and after its exercise to conceal the excess of jurisdiction by a false record. By proceeding to judgment as they do after the death of a party hdS been suggested, Courts recognize the power to adjudge notwithstanding the death and the consequent technical abatement of the suit. This circuity, while it is a tacit concession of the irregularity of a decision subsequent to the death of. a party, is an assertion of jurisdiction; but as judgments so rendered might sometimes prejudice the rights of one of the parties, or his representatives, or the rights of third persons, it is not a matter of course to render them. The course of decisions on that subject has clearly marked the boundaries of that discretion which is exercised in pronouncing or declining to pronounce- judgments nunc pro tunc. It has been usually exercised in granting or denying a motion to enter a judgment as of a former date. But since judgments are not liens upon property until the levy of execution, the rights of bona fide purchasers and incumbrancers cannot be overreached. There are not the same considerations as formerly to restrain Courts in the exercise of this discretion.

If verdicts and judgments rendered after the death of a party. were deemed regular, the rights of parties, and especially those of the deceased party’s representatives, might frequently be sacrificed because of the absence of any appeal to this discretion. There is, therefore, a peculiar propriety in obliging the party who seeks the benefit of the judgment to move for regularity in such form as will bring the fact of the death to the notice of the Court;.

A judgment entered after the death of a sole plaintiff is, consequently, irregular in a technical sense unless it occur between verdict and judgment. On a motion to set it aside, the Court would trqat it like other irregular proceedings' If no rights had béen violated, or, in other words, if it were a case in which the Court would proceed to judgment after the suggestion of a par- ■ ty’s death, and permit it to be entered nunc pro tunc, the judgment would be vacated only to be entered again ot a prior date as in a proper case to be prosecuted'or defended, under the statute, by representatives,' 2 C. L., § 4204; Stickney vs. Davis, 17 Pick., 169; Sprongstiad vs. Jayne, 4 Cow., 423.

If a motion were made in the case in which the judgVnent in question was rendered, I cannot doubt it would have resulted in the judgment being vacated and re-entered of the 4th day of December, 1855, when trial took place. The plaintiff was then .entitled to judgment, and the persons entitled tq succeed to his .rights should not suffer by the delay while the case was under’ advisement. All parties .who could move to set it aside or have a review on error are concluded by that judgment in any collateral proceeding. As to them, it was only voidable and good until set aside or reviewed.

2 Bac. Abr. lit. Error A; Cro. Elir. 199; Warder vs. Tainter, 4 Watts, 270, 280; Griswold vs. Stewart, 4 Cow., 457; Jackson vs. Robins, 16 John. R., 537; Jackson vs. Delancy, 13 Id., 537.

Judgment for plaintiff for $1,066 55.


author: Cooley, J.

text:
    Lizzie S. Price vs. John D. Read.
    A defendant in attachment who moves for a dissolution of the same must have an interest in the property attached to entitle him to an order of dissolution.

      Certiorari to a Circuit Court Commissioner of Washtenaw county.
   Opinion by

Cooley, J.

Mrs. Price sued out an attachment from the Washtenaw Circuit' Court against the property, of Reed. Reed'petitioned the Circuit Court Commissioner for an order dissolving the attachment. When the petition came on to be heard, it appeared that Reed had turned over all his interest in the attached property to one Wood, who held a chattel mortgage upon it. The counsel for Price thereupon moved to dismiss the petition on the ground that lieed had no right to a return of the property, and no right to take this proceeding. But the counsel for lieed disclaiming any desire for an order restoring the property, the Commissioner denied the' motion, and made an order dissolving the attachment.

Held, that this order was erroneous. To entitle the defendant in attachment to an order dissolving it, he must have a right to an order restoring the property to his own possession, and this he cannot have where he has parted with his interest.

Proceedings quashed.


author: Graves, J

text:
    In the matter of Eliza Weinrich.
    The sixth section of the “ Act to provide for the imprisonment and detention of convicted per» sons in the Detroit House of Correction” (Laxos o/‘lS69,ip. 269,) is the only ©ue that can be of force elsewhere than In the county of Wayne.

      Certiorari to Wayne Circuit Court.
   Opinion by

Graves, J

—The petitioner was convicted in the county of Genesee of being a common prostitute, and sentenced to the House of Correction at Detroit for three years, under the Act to provide for the imprisonment and detention of convicted persons in the Detroit House of Correction.” Laws of 1869, p. 269. She petitioned the Wayne Circuit Court for discharge on habeas corpus, on the grounds, first, that this Act was unconstitutional, and, second, if not unconstitutional, it was, by its express provisions, limited in its operations to the county of Wayne. The Circuit Court denied the motion.

From the record it appeared that the conviction must have been ,had under the fourth section of the Act. ' The third section provides that “ the provisions of this Act shall apply to the county of Wayne only.” Whatever may have been the intent of this provision, the Court was of opinion that they must give it effect by applying it to all parts of the Act where the intent that they should be of general application did not distinctly appear. The sixth section, which relates to the confinement of persons under fifteen years of age until they reach twenty-one, is the only one which cannot have full effect within the county of Wayne, and is, therefore, the only one that can be in force elsewhere.

Order reversed and petitioner discharged.

Whether the Act has any constitutional validity anywhere was not decided.


author: Campbell, C. J.

text:
    In The Matter of John Hicks and Joshua Hicks.
    The giving of a second mortgage before the filing of the first, with a view to giving the second mortgagee a priroity, renders the mortgagor Hable as a wrong doer, and he may be proceeded against by capias.
    Error to Ionia Circuit.
   Opinion by

Campbell, C. J.

The parties who were discharged under a habeas corpus proceeding, were arrested on a capias ad respondendum, sued out for an alleged injury, for which redress was sought by an action on the case in the nature of an action of trover. The validity of the arrest depended upon the affidavit, which set out these facts:

That March 24, 1869, the Fulton Iron and Engine Works of Detroit, sold to the Hicks Brothers at Saranac, some machinery, the purchasers paying $800 in cash and giving their notes and chattel piortgage for the balance. The mortgage was sent by the Fulton Works to, the Detroit & Milwaukee Railroad agent at Saranac, together with the property, with instructions to deliver the latter to the Hicks Brothers upon their obtaining from the land on which the mill, which was to contain the machinery, was to be erected, a recognition of the right of the \Fulton Works to the property. The recognition was endorsed on it, and the mortgage was recorded in the town clerk’s office at Saranac. April 1, 1869.

March 29, while a part of the mortgaged property was in the possession of the Railway, the Hicks Brothers purchased on credit, a lot of logs from Charles Macomber, and gave a second chattel mortgage upon the machinery and upon some logs to secure the payment of $9,859, which mortgage was filed with the Town Clerk in the evening of March 30.

The objections to the affidavit were ; First, that if the second, mortgage was by these acts given priority, that could not give any cause of action for the injury; Second, that it does not appear that any such priority was gained.

Hr.kl, That the sale in this case passes the property to the Hicks Brothers, and that their action in making the second mortgage made the Hicks Brothers responsible as wrong doers and the affidavit justified the arrest.

Judgment of discharge reversed with costs.


author: Christiancy, J.

text:
    Delshman vs. Barry.
    A special finding of the Circuit Judge, in the absence of any showing to the contrary, will be presumed ¿0 have been made at the request of one of the parties to the suit, and will be taken as a part of the record.
    A leased lands of B for the term of one year, with the privilege of having the same three years, at the option of lessee; the latter covenanting “ at the end of said term to deliver up quiet possession of the premises.” The lessee continued in possession five days after the expiration of one year, when suit was brought to recover possession by lessor. Held, that the continuance in possession was sufficient notice of the intention of the lessee to remain in possession.
    Error to Branch Circuit.
   Opinion by

Christiancy, J.

A preliminary objection was urged for defendant in error, that the special.finding of facts by the Circuit Judge constituted no part of the record, and § $ 2436 and 2437, O. L., were cited, as well as the Laws of 1863, p. 183. By these acts the Circuit Judge is not indeed compelled to specify the facts found, and ‘his conclusions of law thereon, unless requested by one of the parties. But when the case is tried before him without a jury, it is competent and well for him, in making his written decision, to specify the facts found, and his conclusions of law thereon. If this were not so, and a request were necessary, the request would he presumed, in the absence of any showing to the contrary, in a qase where a written finding has been filed.

A question arose whether the lessee, in order to avail himself of the privilege of a longer term than one year under the lease, was bound to notify the lessor of such intention at the expiration of the first year, or before suit brought by the lessor to oust him. The lease was for the term of one year, with the privilege of having the same three years, at the same rent, at tbe option of the lessee. And the lessee covenanted, “ at the end of said term, to deliver up quiet possession of the premises.” When suit was commenced, he had continued in possession five days after the expiration of one year, without otherwise giving notice of. his intention to avail himself of the option of the longer term. The Court below held that his remaining over was not an exercise of the privilege, but that he must give notice when the next year commenced, or at least before suit was instituted.

Held, that the continuance in possession was sufficient notice in this case. This possession will be presumed to have been intended by the lessee as lawful, according to the agreement that he might hold longer than one year, rather than wrongful in violation of his engagement that, at the end of the term which he elected to take, he would deliver up peaceable possession.

Judgment below reversed, with costs, and judgment ordered for defendant.


text:
    The Peninsular Railway Company vs. Geo. Howard.
    Jurors impaneled to .assess value of land for use of a railroad may be challenged when impan-
    "When a stockholder is upon, such jury the company or himself should make it known without waiting for a challenge.
    Appeal on an assessment of damages for land taken for railroad.
   Opinion by

Christiancy, J.

The railway company, under an order of the Probate Judge of Cass county, caused a jury to be impanneled to assess the value of land needed from Howard’s faim for their road. Howard contested the proceedings, and after the jury had made its report to the Judge he moved to set it aside on the ground that some of the jurors were not freeholders and were members of the railway company. This motion was denied.

Held, that at the time the jury is impanneled the parties have a right of challenge, and an objection that a juror is not a freeholder ought to be taken at that time. But an objection that a juror is a stockholder in the company stands on a different footing. The knowledge who their stockholders aréis peculiarly possessed by the company, and either they or the juror ought to make the objection without waiting for a challenge. The objection might, therefore, be taken when the assessment was returned.

Assessment set aside, and case remanded for a new jury.


author: G-raves, J.

text:
    Beers et. al. vs. Beers.
    To support action for waste, nr.dvr tlio statute, against* original tenant for life, it must appear that ho suffered or committed the waste while he was in possession.
    Error to St. Clair Circuit.
   Opinion ly

G-raves, J.

Plaintiffs in error brought action in the court below against Mrs. Beers. It appeared on the trial that one Horace Beers died in February, 1850, seized of the premises described'in the record, and on which, at.that time, and until after the sale made by defendant to one Kean, there was a mill,. Defendant in error is the widow of Horace Beers, and at his death became tenantfor life by force of the statute. In 1862, Mrs. Beers conveyed her life estate by deed to Kean, and gave-him authority to remove the mill, and he removed it. And finally the premises were sold for the taxes of 1863.

Plaintiffs aré the heirs of Horace Beers. The acts of waste relied on were that Mrs Beers caused the mill to he removed, and suffered the premises to he sold for taxes. Upon these facts the Circuit Judge .charged that the plaintiffs could not recover. The question raised by this ruling is whether the action could be maintained against the original tenant for life for matters which occurred after she had conveyed all her interest, and when she was not shown to be in possession.

Held, That to support action of case under the statute against the original tenanit for life, it must appear that he committed, or suffered the waste, while he was in possession. The original tenant for life is not liable for his own acts of waste, even after conveyance, much less for the acts of the person to whom the transfer has been made.

Judgment of the Court below affirmed with costs.


text:
    The People ex rel. Ira P. Bingham vs. Trustees of the Village of Brighton.
    Village authorities instituted proceedings to open a street through lands ofB., who resisted the proceedings. Held, certiorari his proper remedy.
    The Village Clerk was abo a Justice of the Peace, and issued a venire returnable before himself as Justice. Held, the issuingof the venire by the Village Clerk being a ministerial act, he is not disqualified from having it made returnable before himself as a Justice of the Peace. To give jurisdiction in such proceeding, it must appear from tho return of the officer who summons the jury that they are such persons as the statute allows to act in the case.
    In special proceedings the jurisdiction and regularity of the steps taken must appear affirmatively by the record."

      Certiorari to a Justice of the Peace on proceedings to open street.
    The village authorities of Brighton took proceedings to open Hamburg street through the lands of Dr. Bingham. Bingham resisted the proceedings. The Village Clerk, who was also a Justice of the Peace, issued a venire for the summoning of a jury returnable before himself as Justice. The constable summoned a jury, but did not state that the jurors were freeholders residing out of the village, as the statute requires. The jury gave a verdict that the improvement was necessary, and assessed Bingham’s damages. Bingham then sued out a certiorari

   Opinion by

Campbell, C. J.

Property cannot be taken in an incorporated village for public use without the consent of the owner unless upon the verdict of a jury of freeholders not residing in the village. Under the statute, (C. L., §2124,) the appeal provided for from the verdict oí1 such a jury relates only to the amount of damages, and a certiorari lies in favor of a party who objects to having his lands taken at all.

The proceedings under the law are not under the control of the village authorities, but when they have determined to commenee them the venire is made returnable before a Justice, and thenceforth the village becomes a moving party, and the jury the tribunal. The legal proceedings begin with the venire and end with the Justice’s judgment upon it, and the certiorari, therefore, issues to the Justice, in whose custody all these papers are placed by the law. But on certiorari to him there can be nothing examined behind the venire.

The issuing of the venire by the Village Clerk being a ministerial act, he is not disqualified from having it made returnable before himself as a Justice of the Peace.

The necessity for the improvement, as well as the value of the land taken, must be determined by the jury, and parties have a right to give testimony upon the one question as well as upon the other.

In special proceedings the jurisdiction and the regularity of the steps taken must appear affirmatively on the face of the record, and no substantial omission.pan be supplied by extrinsic evidence; and where the return of the officer summoning the jury does not show them to be such persons as would be qualified to act, the proceedings are void.


author: by Graves, J.

text:
    Thomas Aiken, Executor, etc., vs. Elizabeth Wickerly.
    The Court was requested by proponent to instruct the jury that if they found a fair balance of testimony in favor of the will they should find a verdict for proponent. The Court re* fused, and omitted to charge at all upon the point. Held, that the jury should have been charged as prayed, or in other terms conveying to them that a preponderance of evidence would be sufficient.
    In testamentary cases nos more than a preponderance of evidence is required to authorize a verdict for proponent.

      The burden of proof in such cases is upon proponent throughout the case.
    The statute which requires a will to* be attested and subscribed by the witnesses in the presence of the testator is complied with if the act be done when the testator is mentally observant of it, and having his eyesight, may, if he choose, as be is circumstanced, see it by some slight, efl'ort which his ailment does not prevent. When thus able to see, his omission to do so, caused solely by his indifference, will not impair the execution.
    Error to St. Joseph Circuit.
   Opinion

by Graves, J.

This Ivas an appeal from an order of the Probate Court determining that the instrument mentioned in the record as the last will and testament of John Aiken, deceased, had been duly proved and established. An issue was framed in the Court below and tried by a jury, who found that the instrument was not such last will and testament. The proponent of the will requested an instruction to the jury that if they found a fair balance of testimony in favor of the will they should find a verdict for the proponent, which the Court refused. It was Urged that it was uot a fair balance of testimony, hut a preponderance, which the law requires- generally in civil cases, and even then the preponderance must he of proof, not of the instruments of evidence.

Ile/cl, that the. refusal so to charge was error. The request follows the language of the Supreme Court of Vermont'in. a recent case, and the jury would have received it as meaning precisely the same thing, which contestant’s counsel admit would have been proper. It is. the duty of the J udge to use such tex-ms as will answer the object to be attained, which isto convey to the jux-y the legal knowledge required. If the instruction was coxTect, and not calculated to mislead, it was proper, even though properly sxxbject to a lawyers criticism, as to its terms.

The question was also discussed whether the law did not require something more than a preponderance of evidence to justify a verdict for the proponent.

Meld, that the proper rule of evidence is that which has always obtained in civil actions, and that between that rule and that applied to trials for crime there is no middle course sufficiently definite to he adopted.

An exception was taken to a charge that the burden of proof was.upon proponent and continued with him throxxghout the case. It was claimed that after the proponent had made a prima facie case the presumption of law in favor of competency was sufficient evidence on that subject, and thereupon the burden was on the contestant to show the disability of the testator.

Reid, that this position is untenable. The proof of capacity is not merely cast in the first instance upon those averring it, but it abides there during the trial.

The case involved a discussion of the meaning of the statutory provision that a will must be “attested and subscribed in the presence of the testator’’ as applicable to the facts ot this case.

Held, that the testator must have knowledge of what is going forward and bo mentally observant of the specific act in progress, and, unless he is blind, the signing by the witnesses must occur where the testator, as he is circumstanced, may see them sign if he chooses to. If he could see and does not choose to do so, through neglect to turn his head, or something of that sort, the signing is good. It is otherwise if his ability depends upon his power to make the requisite movement and his ailment prevents it. The charge in this case might have led the jury to suppose that the testator’s visual perception of the signing was indispensable, even though through indifference he neglected this.

Some other objections were held not well taken, but the Court, from the issues expressed above, set the judgment aside and ordered a new trial.


text:
    Peter B. Appledorn vs. James B. Streeter.
    f fn this case we have boon unable to procure enough of the facts, or of the ©pinion ©f the fllourt, to warrant a head note, but g.Wo briefly what are i epreeented as the snaiu facts, and the conclusion ©flaw tboreon.]
   Streeter sued Appledorn on a note. By the evidence it appeared that the note was given with a mortgage on lands, and that after the note fell due it was paid by a man who bad bought the land subject to the payment of this mortgage. This man afterwards sold the note to another man, who sold to Streeter. The Circuit Court gave judgment for Streeter.

Held, that this judgment was erroneous. The payment of the note after it became due extinguished it, and no one couldi afterwards acquire a r.iglit to collect it by buying the canceled paper.

Judgment reversed.


text:
    Charles L. Ortman vs. Selah Dustin.
    As the true cause of action is required to be stated in the affidavit to hold to bail onacapia% the ac eliani is only a formal part of the writ.
    A capias returnable out of term is irregular, and will uot be amended.
    If a ortpias, in a case not arising upon contract, is executed before an order is indorsed fixing the sum in which the defendant may be let to bail, it will be set aside.

      Saginaw Circuit Court,

    1867.

      D. W. C. Gage for Plaintiff.

      J. J. Wheeler for Defendant.
   By the Court,

Sutherland, J.

A motion has been made to set aside the capias issued in this case on the grounds—

1. That it does not sufficiently state the cause of action. The writ requires the defendant to be arrested to answer to a bill tiled in this Court against him by the plaintiff in a plea of trespass on the case for damages other than those arising upon contract.”

The practice in cases of capias shows some curious features that mark the successive steps taken in legislation for security against oppressive arrests.

At an early period in England a defendant might be arrested and held to bail for any sum of money without any affidavit that it was owing or due, and without any statement of the cause of action in the writ. Tidd’s Pr., 81, 144. A statute of 13 Charles II. enacted that no person arrested on a bailable writ or process should be compelled to give security for his appearance in any penalty exceeding £40 unless the certain and true cause of action was expressed particularly in the writ. The statute 12 George I. enacted that in all cases where the cause of action should not amount to £10 or upwards, and the plaintiff should proceed by process against the person, he should not arrest or cause to be arrested the body of the defendant, but serve him personally within the jurisdiction of the Court with.a copy of the process with a notice indorsed of the intent and meaning of such service; and where the cause of action amounted to £10 or upwards, an affidavit of the cause of action should be made and filed, and the same, stvorn to, was required to bé indorsed on the back of the process. The ac etiam clause in the,writ originated under the first mentioned Act, and the affidavit to hold to bail under the other. After the enactment of the statute requiring the affidavit the ac etiam was still retained. The New York statute required the first, namely, the statement of the cause of action in the bailable capias, (2 R. S., 848, § 6,) and gave a right to hold to bail, of course, without affidavit or a Judge’s, order, in nearly all cases, until the Act to abolish imprisonment for debt. The defendant could compel the plaintiff to make affidavit of the cause of action by application to mitigate the bail.

Our statute contains no direction that the cause of action shall be stated in the writ, except it is required to be in the form heretofore in use in this State. §4112, O. L., and there is an implication contained in § 4119.

Inasmuch as the true nature of the plaintiff’s claim must be stated in an affidavit annexed to the writ, the ac- etiam is no essential advantage to the defendant. It is a formal part of the writ as it has been used in this State, but the omission may be cured by amendment.

2. It is contended that the capias is void for being made returnable out of term.

’ It has been uniformly so held by the Courts in England and ■this country so far as I have been able to ascertain in the examination I have given the subject. Bunn vs. Thomas, 2 John. R., 190; Parsons vs. Loyd, 3 Wils., 341; Cramer vs. Van Alstyne, 9 John., 386; Miller vs. Gregory, 4 Cow., 504; Kenworthy vs. Peppiat, 4 B. and Ald., 288; Osborne vs. Taylor, 1 Chitty, 400.

The statute of New York that process on which any defendant shall have been arrested shall not be amended in the return day is in affirmance of the good sense of the rule on which Courts had acted.

The statute allowing amendments in form or substance for the furtherance of justice has never been construed as either requiring or permitting all amendments that would tend to advance the purposes of the'party asking for them. Though the statute is very broad, the practice of the 'Courts has fixed practical limits.

This objection must be held well taken. It would determine this motion if not waived; but as a third point was discussed by ■ counsel, I think it proper to decide that also, namely, that there was no order to hold to bail.

The English and New York practice, with reference to which this question has been discussed, allowed a • capias, or other process, to be issued in form requiring the arrest of the defendant in two classes of cases — those in which he couíd, be held.to bail, and those in which he could not. In those in which special bail could not be required the process amounted to little more than a summons. Under the New York Revised Statutes no arrest could be made on a non-bailable capias, and the Act abolishing imprisonment for debt was held not to abolish it. Hayward vs. Hoyt, 9 Wend., 483. Such a capias, however, was sufficient for the commencement of an action. Patterson vs Barker, 2 Hill, 560.

In our State a capias is authorized only for the arrest of the defendant. It is a compulsory means not only of obtaining his appearance, but it secures the custody of his body to satisfy the judgment.

The practice referred to, from which ours is derived, required the ac etiam and the affidavit of the cause of action to render it a bailable process. If they were omitted, or there were any irregularity in the proceedings in respect to them, or if th'e capias were employed for actual arrest and holding to bail in non-bailable actions, the writ would not be set aside, but the defendant would be discharged on common bail, or by indorsing his appearance. 1 Grah. Pr., 550.

Under our practice, if the arrest and special bail cannot both be required, a capias cannot be issued. There is no non-bailable capias. Green’s Pr., § 115.

Our statute provides several modes of commencing suit, and capias and. summons are original writs. The former is appropriate and issuable only in certain specified cases. The Legislature has undertaken to regulate the commencement of suits, and to specify the modes, which implies a negative of any other formerly allowed. 9 Wend., 483. The maxim “ expressio unius est exclusio alterius” applies. It is provided in §4121. O. L., that personal actions may be commenced by capias ad respondendum in eases of claims for damages other than those arising upon contract express or implied where an order for bail shall be indorsed on the writ by a Judge of the Court from which the writ issues, or a Circuit Court Commissioner, directing the amount in which bail is to be taken.

It is apparent from all the provisions of the chapter contain-. ing the foregoing section that the order to hold to bail must be procured before the writ can be executed by the arrest of the defendant. If the order can be procured after the arrest of the defendant, and after the return of the capias, it cap be employed very oppressively. Until such order is made no bail can properly be taken.

The service in this case preceded the making of the order (the order was not made until after the return day), therefore, the proceeding was irregular ;• and since a capias cannot be used as a summons, or to procure the appearance of the defendant, without bail, like a serviceable or non-bailable capias' of the English system, the consequence of the irregularity is not, as under that system, to make the process operate as another mode of commencing suit, and that the defendant be discharged on giving nominal bail, but must be set aside, with the subsequent proceedings founded thereon, unless the irregularity has been waived. The defect cannot be removed by amendment.

Giving bail’ to the Sheriff, under this writ, was no waiver of the defect. It was no recognition of this writ, for it provided for no discharge on bail. Nor was giving such bail an appear-, anee.

The motion must be granted, with costs, the defendant stipulating not to bring any suit against the plaintiff or the Sheriff.


author: Ramsdeu., J.

text:
    John Canfield and Edmund Canfield vs. The Brig City of Erie.
    A log boom In a navigable river is not,per se, a nuisance, but may be built and maintained. The masters of vessels and managers of booms must each leave to the other.all the space which the necessities of the case require.
    The Circuit Court has jurisdiction in cases against vessels to recover damages for the breaking of booms and the consequent escape and loss of logs.

      Manistee Circuit,

      December, 1889.
    On the evening of the 4th of June, A. D. 1868, the brig City of Erie on entering the port of Manistee, in tow of the tug American Eagle, broke and entered the boom of the corn-complainant, situated on the south bank of Manistee river, carrying away a portion of the piles and lumber of the boom, whereby a portion of the logs stored therein escaped and were lost, etc.
    The plaintiff claims that through the misconduct, negligence and want of skill and attention on the part of the master and employes of the brig and the unseaworthiness of her rudder, the brig was deflected from- her due and proper course and turned into the boom, and that the master well knew of the defects in the rudder.
    The defendants deny any want of care or skill on the part of of the persons in charge of the boat, &c.; and aver that the boat was engaged in transporting lumber from Manistee to Chicago, and was on her due and proper course at the time of the collision ; that at the time of the alleged offense, the boom and logs extended to the middle of the river and unlawfully obstructed its navigation ; that if there was any damage done by the brig, it was unavoidable and caused by ■ the darkness of the night, the action of the elements and the location of the boom and logs, which were so placed by the complainant as to seriously obstruct, hinder and damage the navigation of Manistee river and harbor, block up the channel and render it difficult and sometimes impossible for vessels to pass and repass as they otherwise might do, and that at this particular time there were other vessels and scows in the river and harbor, which increased the difficulty ; that the master and employes of the brig did all that could be done to avoid the collision or loss from it, and that if the complainants suffered loss or injury, it was entirely the result of their own wrong and illegal acts. That the Court has no jurisdiction of the cáese, for the reason that the law under which it is brought is contrary to the Constitution and laws of the United States, and that the United States courts have exclusive jurisdiction in such causes of action.
   By the Court,

Ramsdeu., J.

The matter of jurisdiction having been submitted to the Court on stipulation, and a decision thereon rendered before the trial in favor of the jurisdiction of this Court, it is unnecessary to repeat that decision here; therefore I shall proceed to an examination of the facts and circumstances set forth in the complaint, and answered and brought out by the evidence upon the trial. fi

Section 26 of the Act under which this suit is brought reads as follows :

“ The trial or hearing shall be by the court without a jury, unless a jury be demanded by either party, by filing the demand five days before the time for which the notice shall have been given, and. serving a notice of such demand upon the adverse party.”

Neither party having demanded a jury as provided by this section, the ease came up for hearing before the Court without > a jury, partly upon depositions of witnesses taken before commissioners, and partly upon the oral testimony of witness in open Court

The first question to be considered is, did the brig City of Erie break and enter the boom of the complainants, as charged in the complaint ?

The testimony of all the witnesses present on that occasion leaves no doubt upon this point.

The next question is, were the boom and logs wrongfully there ? If so, the accident was from the complainant’s own wrong, and they cannot recover; but if the boom and -logs were lawfully there, then they are entitled to the same protection from the trespasses of passing vessels as any species of water-ciaft would be in a like lawful relation.

Waters like these are declared publio highways, not for the particular benefit of A or B, who may chance to own a vessel, but because the necessities of commerce require it, and the whole country, as well as that in the immediate vicinity, is benefitted by it. It is ¿ publió necessity, and therefore a public right.

• The same publio necessity which declares these waters to be public highways, has induced the Supreme Court of this State to decide all the streams of this State capable of valuable float-age public highways for that purpose. In the case of Moore vs. Sanborn and others, 2 Mich., 519, Judge Martin; in giving the opinion of the Court, says : “ This principle is one of vast importance to this and all new States. We have a large territory yet undeveloped, rich in forest and mineral wealth, washed by vas't bodies of water upon three sides, and threaded by innumerable streams, which are oapable of navigation, many of which are, and many others of which may be, made serviceable in developing its resources, — and with a commerce already established, rivaling in extent that of some of the Atlantic States, and rapidly growing under the influence of increasing population, settlement and wealth, it is of the first importance that the right of the publio be recognized to the free use of all streams susceptible of valuable floatage. In this oommerce our lumbering interests sustain and will oontinue to sustain an important part, and their success will depend to a vast if not entire extent, upon this principle. Indeed, a moment’s reflection will oouvinoe us that a liberal application and retention of the common law rule and its adaptation to our condition and wants lies at the bottom of this branch of our trade. * *

The servitude of the publio interest depends rather upon the purpose for which the public require the use of its streams than upon any particular mode of use, and hence, in a region where the principal • busines is lumbering or the pursuit of any particular branch of manufacturing or trade, the public claim tó a right of passage along its streams must depend upon their capacity for the use to which they can be made subservient. In one instance, perhaps, boats can only be used profitably from the nature of the product to be transported, whilst in another they would be utterly useless upon many of our streams, although of sufficient capacity for navigation by boats, they are never seen — whilst rafts of lumber of immense value, and mill logs which are counted by the thousands, are annually floated along them to market.” These rights, as expressed by the Supreme Court, are based upon the public necessity and occasion for such use. This public right of floatage along our streams would be entirely valueless and unavailable without the further right to store or boom the logs along the river banks and in the natural harbors at their mouths. This further right follows as a corollary to the major proposition laid down by the Supreme Court in the ease just cited, and is based upon the same principle'.

This right andkhis necessity, were recognized by the Legis-. lature when it adopted Act No. 221 of the session laws' of 1863. This statute establishes no new right so far as interfering with navigation upon our rivers is concerned, but is simply declaratory of a common-law right already existing and exercised — co-Gxtensive with the right to navigate, and of equal public importance.

Manufacturing and shipping interests are identical, and the interest of the public is equally with each. The true and only rule which can be given for the government of both interests is this : Each must leave to the other all the space which the necessities of the case require.


text:
    Hesse vs. Knippel.
    A physician is not a warrantor or insurer of a case. His only contract is to treat the case with reasonable diligence and skill.
    One who professes to adhere to a particular school of practice must come up, at least, to its average standard, and must be judged by its tests and in the light of the present.
    A greater degree of care, in respect to human life, is required than in relation to property.

      Saginaw Circuit

    March, 1870.
   Charge to the Jury, by

Sutherland, J.

In this case the plaintiff was employed as a physician by the defendant to treat his wife immediatey after child-birth. He treated her and is entitled to receive therefor $32, unless it appears from the testimony that he does not deserve any compensation by reason of failing to perform his professional duty.

The defendant defends solely on the ground that the plaintiff did not perform his services as a physician, with due care, diligence and skill; and that by reason of such carelessness, and want of skill, his services were of no value.

To decide whether the plaintiff failed in his duty, it is important that the jury have as definite a rule as can be given in respect as*to what is required.

A physician is not a warrantor or insurer of a case) and he is not to be tried by the result of his remedies. His only contract and duty is to treat the case with reasonable diligence and skill. 22 Penn. St. 261, 3 Wisc. 416. He is bound not only to use such skill as he has, but to have, and to employ a reasoable degree of it. 31 Barb. 534. While the law will not countenance quackery, it does not require the most thorough education, nor the largest experience. One who professes to adhere to a particular school of practice, must come up at least, to its. average standard, and must be judged by its tests, and in the light of the present day. Shear, and Red. on Negl. pp 490-2, § 435 437.

It is not claimed that the plaintiff did not possess the requisite skill; but only that he did not use it.

What is reasonable diligence and care, in a particular case, depends on its circumstanceson the occasion for exertion which these circumstances suggest to avoid possible evils, depends on the serious character of those evils if they are permitted to occur* and the imminence of the danger. A disease known to be rapid, or a condition known to be critical and dangerous, will require more instant and careful attention and application of remedies than one. comparatively harmless, and only requiring good nursing. Id. $ 438.

The common law has a peculiar regard for human life ; and for this reason exacts a greater degree of care in respect to it, than in relation to any mere matter of property. Accordingly, the law requires from all persons, including those who render, gratuitous services, at least, ordinary care for the safety of life, from those who render services for compensation, great care 32, Barb. 657.

These are general principles. They may be stated more definitely in connection with particular cases.

A physician employed to take charge of a woman in child-bed, has two general duties to perform with care and diligence: first, to ascertain and keep informed as far as practicable, of the condition of his patient; and, secondly, to direct the administration of suitable remedies to promote recovery.

The first duty, that pf ascertaining the condition of the patient, is not an absolute duty, but a duty to use the. means and methods for that purpose, sanctioned by science and experience, as understood by well-instructed practitioners of the same school; and to pursue the inquiry and examination with reasonable thoroughness. He is not answerable for the errors of an enlightened judgement; but he cannot interpose his judgment contrary to that which is settled. He must apply, without mistake, what is settled in his professson. He cannot try experiments with his patients to their injury. Shear. and Red. on Negl. § 440; 19 Pick. 333; 11 Barb. 397.

We are reminded by the evidence showing the great complexity of the human organism, that “we are fearfully and wonderfully made.” Every present or> threatened derangement is not at once manifest; certain conditions may be readily ascertained ; others must be inferred, arrived at by reasoning; judement must be exercised.

What are safe conditions of a woman just delivered of a child, have been stated with unanimity and precision by the experts. There is required, first, the complete removal of the placenta, with the usual membranous attachments, and secondly, prompt measures to prevent all excessive loss of blood. It is agreed by all the witnesses that at the plaintiff’s first visit, he promptly arrested the-flow of blojpd ; but it is insisted, on the defense, that there was a subsequent loss, impoverishment, or poisoning of blood, in consequence of the first requisite not being duly attended to.

When the physician has an opportunity to examine, the placenta discharged, it is conceded that by inspection, he can decide with certainty whether it is intact, or any part detached, so that further examination is required; and it is agreed on all hands that this means of information is very important. If this is •neglected, or is impracticable, other satisfactory tests may be resorted to.

The jury will have to decide whether the plaintiff was in this part of his duties reasonably diligent. Was he prevented from examining the placenta, by its removal beyond his reach, before his arrival; or was he so informed, in answer to his inquiry for it ? If so did he diligently pursue his investigations otherwise, by acting on the information from the midwife, and the result produced, and the condition ascertained by abdominal manipula, tions? If he pursued his examinations far enough to form a reliable judgement, or such as thoroughly educated physicians would ordinarily, under like circumstances, form and act upon, he cannot be held responsible for coming to an erroneous conclusion, though other tests might have been used, and were not.

The same rule of duty applies to his subsequent oversight of the case. Anil his treatment of the patient otherwise, in all the stages of the illness, including the application oí remedies, must be characterized by reasonable care and competent skill, tried by the average standard of educated practitioners.

If the patient died front the effects of a lo'-s of blood at the time of delivery and afterwards, or the failure of medicines, or the' omission of medicine to reinvigorate her; still, if the pliantiff used reasonable care and diligence, considering the nature of the case, and the general state of medical knowledge and experience, he performed his duty, notwithstanding the result. So the jury should find that in some part of the plaintiff’s treatment there was a want of diligence or- skill, but the prejudicial effect was •light and temporary, and was not the obstacle to the recovery of the patient, and did' not contribute to her death, it may be disregarded. It is a self-evident proposition that negligence which does no injury, cannot be the basis of an action, nor detract from the value of otherwise meritorious services.

On the other hand, should the jury find that the defendant’s wife was in a condition, from time to time, which the plaintiff could have ascertained -by reasonable diligence and skill, and he failed to ascertain her condition; or, after having learned her condition, if it appears that by a diligent exercise of reasonable skill, in the use of remedies well known to educated physicians, he could have saved the patient, and by failing in this due administration of remedies, his treatment was unsuccessful, he cannot recover.

A verdict was rendered for the plaintiff.


author: By the Court., O’Grady, J.

text:
    The People vs. Edward Dillard.
    1. Amendment of information allowed after new trial granted.
    2, The amended information described the contents of a bank check. Held, that parol
    evidence might be given by the prosecution of its contents without notice to prodnce or accounting for its non-production, it appearing by testimony of prosecutor that the check had been obtained from him by prisoner by false pretences, and that he (prosecutor) had never since seen it.

      Houghton Circuit,
    January, 1870.
    The respondent was charged in the information with “obtaining from John Betgir fifty dollars lawful money,’’by certain false representations, &c., under Act No. 164, S. L. 1867.
    The proof showed that the property actually obtained from the prosecutor by respondent, was a check of that amount drawn by an officer of a corporation upon a bank in Houghton county. The jury found the prisoner guilty, contrary to the charge of the Court upon this and other variances between the allegations of the information and the evidence upon the trial. A new trial was granted. Thereupon the prosecuting officers asked leave to file an amended information, charging the respondent with “ obtaining a certain bank check of the value of fifty dollars, the property of,” &c.
    It appeared from the return of the evidence taken on the preliminary examination, that all of said evidence showed that it was a “ bank check ” and not '• money ” that had been obtained from the prosecutor.
    The Court perráitted the amendment to be made, in view of the fact that the respondent was fully apprized by the evidence on the preliminary examination that he was charged with obtaining a bank check, and not money, (as the original information erroneously alleges) he cannot be taken by surprise by the amendment. The allowance of the amendment could do the respondent no injustice, and the Court was of opinion that this case was within the statute of amendments.
    On the sécond trial on the information thus amended, the people having proved by the prosecuting witness that the respondent, at the time and place, and on the representations charged in the information, obtained from him a bank check worth the sum of fifty dollars, and that the witness had never since that time seen it, were further proceedings to prove by him the contents of the same as set out in the information. (It had appeared in evidence that the bank on which the check was drawn, in the regular course of business, returned to the drawers of them, checks presented and paid.) ' To this proof defendant’s attorney objected on the ground that the contents of a written instrument could not be proved by parol — citing numerous authorities, and arguing that the people were bound to produce the check or account for its absence, especially since it appeared in proof that the check, if paid, would come into the hands of -the drawer of it by the regular course of business; that no effort is shown to have been made on the part of the people to obtain the check either at the bank or from the drawer.
    Counsel for the prosecution contended, that the instrument sought to be proved, being shown to have been delivered to respondent, its contents might be proved by parol, without further accounting for its absence, or giving notice to produce it, citing People vs. Holbrook, 18 Johns, 90.

      Hubbell & Clf-adboume for the People.

      Dan. If. Ball for Respondent.
   By the Court., O’Grady, J.

The evidence is admissible, the presumption now being that the check is in • respondent’s possession. When lafct seen it was in his hands. It will be presumed he still has it. Nor is it necessary for the people to call the officers of the bank to show its payment or non-payment there. The information gave respondent notice to produce the check. The case of The People vs. Holbrook, cited by counsel, is conclusive upon this point. See, also, Hardin vs. Kretsinger, 17 Johns. 293; People vs. Smith., 20 Johns. 63.

It appeared in evidence that the drawer of the cheque had sufficient funds in bank to 'meet it at the time respondent obtained it and long afterwards.

At the request of the prosecution, the Court charged the jury, among other,.things, as follows-: ■

“ If by the act of the defendant in obtaining the check (provided the jury finds the other fact necessary for conviction), complaining witness suffered loss, then the defendant may be convicted thongh he.derived no benefit from his fraudulent act;”

—and refused-the following request, of the defendant’s counsel:

“If defendant received the check in the manner alleged, and still holds it, it is harmless in his hands, and unless the jury find from the testimony that defendant negotiated the check or received money on it, or some benefit from it, he must be acquitted ; citing People vs. Stone, 9 Wend., 182

Defendant was convicted.


author: Upson, J.

text:
    Stephen Paddock vs. Evi Smith.
    Whkre the Sheriff levies r writ of attachment upon property but is unable to find the defendant, he has till the return day to enable him to make personal service of the writ; and an actual return before that day is premature.

      If, however, he return the writ * not personally nerved* before the “return day,** and the * plaintiff within thirty days after the “return day ” give notice by adrertlaement an pio* vided by § 4769 O. L.t and subsequently file hie declaration in the case, after making proof of such publication, the writ will not be quaehed or dismissed nor the subiequent proceedings >et aside in consequence of such premature return, nor (under g 4769, G. £.,) by reason of a defective jurat to the affidavit of publication, when It is satisfactorily explained at the time the motion iu heard, so that it may be corrected.
    In this cause the writ of attachment was- issued and the proper affidavit was made and attached thereto, Oct. 15, 1669 the writ being made returnable on Tuesday, the 2d day of Nov., 1869.
    The writ was returned and filed with the clerk by the Dept. Sheriff, Oct. 18, 1869. Served by a levy on real estate of the defendant, but returned “ defendant not found.”
    On the 12th of Nov., 1869, the plaintiff caused a notice of the attachment to be published, under 6 4759, C. L., and on the 28th of Dec., 1869, filed affidavit of publication commencing on the 12th day of Nov., 1869, and ending on the 24th day of Dec., 1869, hut the jurat, by mistake, as it afterwards appeared, was; dated Dec. 17th, instead of Dec. 24,1869, the time where it was last sworn to ; the printer having first sworn to it one week too soon, and afterwards, when resworn, the jurat was left unchanged and it was so filed.
    On the 28th of Dee., 1869, the plaintiff filed declaration and caused an entry to be made of the defendant’s appearance.
    On the 14th of Feb., 1870, defendant appeared specially for the purpose of making the motion, and moved the Court to quash the writ and dismiss the attachment, with costs, under § 4759, CL,

    The plaintiff, by leave of the Court, filed affidavits showing that the affidavit of of publication was sworn to on the 24th of Dec., 1809 ; it having before being filed been sworn to once ■ before, being a week too soon, and on being discovered, was kept over one week longer, and the publication of notice continued in the newspaper another week, and on the re-swearing of the affiant the notary neglected to alter the date of the jurat; and on motion of plaintiff's attorney, the officer was allowed to amend the jurat in accordance with the fact, which was thereupon done; and the plaintiff opposed these facts, in connection with the. papers and proceedings in the case, to the motion of the defendant.

      M. S. Bowen,. Defendant’s Attorney, for the motion.

      Parsons & Pratt, Plaintiff’s Attorneys. — Contra.
   By the Court,

Upson, J.

Jurisdiction of the action in the first instance was obtained, it at all, by the making and attaching the necessary affidavit to the writ, under the statute. §§ 4742, 4743, C. L.

Whether the Court can legally continue to exercise.that jurisdiction, depends upon the taking of the proper steps after the first. The notice is not necessary to give the Court jurisdiction of the action at the commencement. But when jurisdiction has been obtained, the subsequent proceedings, and especially those for the giving notice to a defendant not served with process, must conform to the law in order to authorize the exercise of its jurisdiction by giving judgment; and the statute in this State, in case of neglect to publish notice, requires the attachment to be dismissed with costs. § 4759, C. L. ; Brahe on Attachments, §§ 436, 437.

Mr. Drake, in the sections above quoted, says that want of such conformity will be error and a good ground for reversing the judgment of the Court, but will not make the proceedings void ; but under our statute, the Supreme Court, in King vs. Harrington, 14 Mich., 532, intimate that where the defendant is not served with process, the publication of notice is necessary to enable the court to obtain jurisdiction, and, also, that a return by the sheriff before return day is premature, as he could not know but that the defendant might be found by the return day. By the affidavits filed and amendment now made, in this case, the proof of publication appears to be sufficient, and although the return by the sheriff was premature, yet we fully concur with the views of the Court as expressed in the case of Scudder vs. York et al, 1 Mich. Nisi Prius, page 35, viz. : “As the writ, in contemplation of law, is not to be considered as returned, until the ‘ return day ’ thereof, if the defendant should come within the officer’s bailiwick before that time, it would be the duty of such officer to serve his writ; and though he may have actually deposited it with the clerk, I can see no reason why he might hot, in sich case, take it again for service.” Doubtless the more correct practice would be for the officer to retain the actual possession of the writ until the return day.

Motion denied.


author: Brown, J.

text:
    LaFayette W. Lovell vs. Adam Bartholomew, et al., Principal Defendants, and The Michigan State Insurance Co., Garnishee.

    Where garnishee proceedings are discontinued by the filing of a bond in pursuance of the provisions of Act 175, <&ss. L. 1867, p. 228, the plaintiff is not entitled to tax as costa an attorney fee in such proceedings.

      Kalamazoo Circuit,
    March, 1870.
    Original suit commenced by declaration. Judgment against the defendants in the main action by default. Before default entered, the principal defendants filed a bond in pursuance of the provisions of Act 175, Sets. L. 1867, p. 228, conditioned to pay any judgment that might be obtained against them in the action. The proceedings of garnishment were thereby discontinued. The plaintiff’s bill of costs in the garnishee proceedings contained an item of $15, as an attorney fee, as on default. The clerk submits to the Court the question : “ Can this be taxed ?”

      May & Buck, for Plaintiff.
   Brown, J.

At common law, costs were not recoverable by either party, eo nomine. The only way in which a plaintiff could recover costs, was by having his expenses included in thó verdict for damages. When the verdict was in favor of the defendant, or the plaintiff was nonsuited at the trial, he was without remedy for expenses incurred. The plaintiff was amerced pro falso clamore suo, but the amercement was given to the King. Bull on Costs, 2; 2 Arch Pr. 281. As costs, then, are awarded only by. statute, and as the statute fails to provide for the item referred to, and claimed in the bill, in this class of cases, the same cannot be taxed.


text:
    W. McEwan, Executor of John Fraser, deceased, vs. The Western Insurance Co. Buffalo, N. Y.

      Z. procured a policy of insurance for $500, and caused to bo inserted a clause, that In cato of a loss it should be paid to F. It provided also that if any change tabes place in the title, or possession, of the property, whether by sale, lease, legal process, judicial decree, or voluntary transfer, without the assent of the Company, the policy to be void. After-wards, before loss, Z. sold and conveyed an undivided half interest in the property to B. Held, it rendered the policy void,

      Saginaw Circuit Court,

      November, 1869.
    Demurrer to Declaration.
    It appears by tbe declaration, that on the 22d day of Sept., 1866, the defendant insured Lewis Zagelmyer against loss by fire, to the amount of $500, on a building in the city Saginaw. The defendant endorsed on the policy, at the time that it was issued, as follow : “ It is agreed, in case of loss, the insurance effected by this policy is to be paid to the estate of James Fraser, deceased.”
    James Fraser in his lifetime held a. mortgage on the insured property, executed by the insured; and, by a provisipn in the mortgage,' the mortgagor was to procure insurance on the property for the benefit of the mortgagee, to the ’amount of $500. On the division of the James Fraser estate, that mortgage passed to John Fraser, as one of the heirs-at-law, and, on his decease, to the plaintiff, as his executor. The policy contained, among others, the following condition: “ If the risk be increased by any means within the control of the insured.; or any change takes place in the title or possession of the property, whether by sale, lease, legal process, judicial decree, voluntary transfer» or the policy is assigned, without tbe consent of the Company endorsed hereon; or if the interest of the assurrd be any other than the entire, unconditional, or sole ownership of the property, and is not so expressed in the written portion of the policy, * * then, and in every such case, this policy shall be void.”.
    Before any loss occurred, Lewis Zagelmeyer sold and conveyed an undivided half interest in the insured property to Herman Bendit, without procuring the defendant’s consent. Afterwards, before the expiration of the period .of insurance mentioned in the policy, the property was wholly destroyed by fire. (

      Wm, H. Sweet for Plaintiff.

      J. J. Wheeler for Defendant.
   By the Court,

Sutherland, J.

The defendant insists that this transfer of a part interest in the insured property, without the defendant’s consent, rendered the policy void under the condition of it, which has been quoted. And the plaintiff contends that the “ Fraser estate ’’ should be deemed the insured patty; and that no act of Zagelmeyer could predjudice the insurance.

Zagelmeyer is obviousely' the insured party; and the sense of the contract was that, when a less should occur, for which the defendant was liable, the money should be paid to the Fraser estate, for the benefit of the insured. Under such a contract, the defendant’s liability would be discharged by the failure of Zegelmeyer to fulfil the conditions mentioned in the policy. Buffalo Steam Engine Works vs. Ins. Co. 17 N. Y. 391, 6 Gray 172.

The case of Foster vs. Ins. Co., 2 Gray 216, shows how such a contract may be placed beyond the reach of the acts and omissions of the party holding the equity of redemption, and procuring insurance m aid of his mortgage.

Demurrer sustained.


text:
    Henry W. Winter, Plaintff in Error, vs. John Krichbaum, Defendant in Error.

    A. suet B. in the Circuit Court, and also sues out garnishee process therein, and garnishees O. Subsequently thereto, but prior to the hearing of the garnishee suit, C< sues A. in Justice’s Court, and declares against him in assumpsit. A. pleads the “ general issue” and gives notice of set-off. C. proves his claim and A. proves hiB set-off to a larger amount, and claims judgement for the balance. <J, thereupon gives in evidence the pendency of the garnishee suit against him asa bar to A’s claim, and insists no judgement should be' rendered against him for the excess. The Justice gave judgement in favor of A. for the balance of his set-off. C. thereupon sues out a writ of certiorari to remove the •ause to the Circuit Court.

      JBeld, that there was bo error, and that the judgment should be affirmed.

      Branch Circuit Court,

    February, 1870.

      Certiorari to Justice Court.
    On the 18th of July, 1868, Winter was garnisheed in the Circuit Court for the county of Branch, in the suit of one Joshua Tracy vs. Krichbaum and others.
    He was .summoned as garnishee of Krichbaum by summons returnable August 14th, 1868.
    July 27th, 1868, Winter.sues Krichbaum in Justice’s Court, and declares in an action of assumpsit, to which Krichbaum ■pleads the general issue and gives notice of set-off. August 12th, 1868, parties proceeded to trial before the justice. Winter makes proof of his claim, and Krichbaum proves his set-off. Winter thereupon gives, in evidence, the said garnishee proceedings pending against him in the Circuit Court, and insisted before the justice, that Krichbaum cannot avail himself of his set-off against him, pending the garnishee proceedings, and, at all events, that Krichbaum can get no judgment against him for the balance of his set-off. The justice, nevertheless, allowed the set-off to the full amount proved, being greater than Winter’s claim proved against him in the suit, and rendered judgment against Winter for the balance of set-off found due Krichbaum, being $26 80, together with costs of suit.
    Winter thereupon brings certiorari, assigning error in the rulings and decissions of the justice as above set forth. It did not appear what further action, if any, had ever been taken in the Circuit Court in said garnishee proceedings.

      Shipman & Loveridge attorneys for Plaintiff in Error.

      Parsons and Pratt attorneys for Defendant in Error.
   By the Court,

Upson, J.

The plaintiff in this suit, having brought suit himself in justice’s Court against the defendant while the garnishee proceedings were pending against him, he cannot now complain of the defendant because he is in Court. If the pendency of the garnishee proceedings would have been a bar to a suit brought by the original defendant against the garnishee, it would have, also, been a bar to any action brougb by the garnishee against the original defendant; but we.do not consider that, on the facts in this case, it was an absolute bar to a suit, by either of such parties, although, in a proper case, and on a proper showing, it might be a cause for a oontiuanee, or for staying proceedings, and: perhaps, in a justice’s Court might, in some cases, be a good ground for a plea in abatement, in order to protect the rights of the garnishee. The only proof in the Court below was the service of the garnishee summons, returnable at a future day, and the garnishee himself had brought the suit which was on trial. The set-off could only be allowed for the full amount proved.- The writ of wtiorari has removed the judgment and .proceedings, therein, into this Court, so that if any judgment has been, or is likely to be, rendered in the garnishee proceedings in this Court, it has the power, on a proper showing, to protect the rights of the garnishee, by staying proceedings for collection of the judgment in this suit.

In the Court below, no application for a continuance appears to have been made by the plaintiff, in order to await the result of the garnishee proceedings, nor did he see fit (as he might have done) to discontinue his suit, and¡ for aught that appears, the whole garnishee proceedings may have been abandoned. It has been well said in Smith vs. Blatchford, 2 Ind., 184, that the defendant’s interest may seriously suffer by postponing the securing of the gasnishee’s debt to him. until his litigation with the plaintiff is terminated. The garnishee may be in doubtful circumstances, making legal proceedings against him necessary for securing the demand; or, he may be about to remove, or abscond, out of the jurisdiction of the Court, or to dispose of his property in fraud of his creditors, justifying an attachment against him., self; and yet, if he may plead the attachment in abatement of a suit by the defendant against him, his debt to the defendant may be entirely lost. The garnishee can he in nowise injured by the double proceedings against him; for no Court, upon, being duly informed in a proper manner of the fact of the two proceedings, would hesitate to take such measures as would effectually secure the garnishee against double liability. This might be easily done by suffering judgement'to be rendered against him in the suit, if that were in a condition for judgment before garnishment, and the money to be collected and held subject to ths attachment. 9 Alabama, 887; 7 do., 157; 20 Vt., 139; 8 Mass., 456. Drake on Attachments, § 701, and cases there cited; also § 699, and cases there cited, showing when garnishment may be pleaded in abatement of susequent suit brought by the original debtor in' the garnishee proceedings against the garnishee.

The judgement of the Court below must be affirmed with costs.


text:
    Emma E. Hill, Complainant, vs. Thomas B Hill, Defendant.

    In proceedings under g 3534 Comp. Laws against absent, concealed and non-resident defend ants, an order for publicar Ion requiring the defonduut to appear wl thin two months thereafter, Is not a compliance with the atatnto, and gives the Court no jurisdiction over him. Iu no case can an order require such a defendant to appear within less than three months.

      St. Joseph Circuit, in Chancery,

      March 21, 1870.
    This was a bill for divorce, filed by the complainant against the defendant, who was claimed to be a non resident, and who was not served with process. An order had been made in the case by a Circuit Court Commissioner, on affidavit, showing the residence of the defendant in another State, requiring him to appear and answer the bill within two months from the date of th¡e order.
    Subsequently, on filing due proof of the publication of the order, an order was entered taking the bill as confessed, and referring it to a Commissioner to take proof of the facts and circumstances stated in the bill. Proofs having been taken and report made by the Commissioner, the complainant’s solicitors thereupon applied for a decree. The defendant did not appear.

      Mason & Melendy, Complainant’s Solicitors.
   By the Court,

Upson, J.

The juricdiction of this Court, over the person of the defendant in this suit, (he being a nonresident and not personally served with process,) if acquired at all, must be in the manner pointed out by the statute, and if not so acquired there is no power in the Court to proceed to a valid decree against him. There are three sub-divisions of section 3534 Comp. Lav», under which the time, in which an Absent, concealed or non-resident defendant in chancery may be required to appear and answer the bill, is regulated and specified. 1st. In case he is a resident of this State, within three months from the date of the order- 2d, If a resident of some other of the United States or a Territory thereof, or of the Province of Canada, within a period not exceeding six months from its date. 3d. If a resident of any other State or country, within a period not exceeding nine months from its ■date. In the first instance, then, where he is a resident of the State, he is required to appear and answer within three months; And the statute only authorizes the making of an order for his Appearance within that time.

In such a case the language of the statute is imperative, and no less time can be fix.ed by the Court, by its express terms. In the other cases provided for in the section, the time may be extended within the limits specified, but it cannot be restricted.

To say that in the other cases a defendant may be required to appear and answer within two months or any less time than three months, would be to hold that a non-resident may be required to appear and answer sooner than a resident, and lead to the absurd conclusion that the more distant a man lives from the State, the sooner he may be required to appear and answer.

The statute does not admit of such an unjust as well as Absurd construction, but contemplates an extension instead of a restriction of the time for the defendant to appear and answer in such cases, and has made provision accordingly.

The second sub-division of section 3534 C. L., should, be construed as to the time therein prescribed, as if it read “ within a period not less than three months and not exceeding six months,” and the third sub-division as if it read “ within a period not less than six months and not exceeding nine months.”

In reviewing the proceedings in a suit under a somewhat similar statute as to defendants not served with process, § 4626 C- ¡J., the Supreme Court of this State says : “ Without the Affidavit no order could be made, and without the order the Court could have acquired no jurisdiction as to Whitehouse and child, and all the proceedings as to them must be void.’ Piatt vs. Stewart, 10 Mich. 260. In the same case the Court also held that the recital of an affidavit in the order for appearance was no evidence that such affidavit was made, and no affidavit being given in evidence that the Court obtained no jurisdiction of the person of the said defendants, and that da to them the proceedings were void. A similar result mu at follow from a defective or insufficient order for appearance, which does not comply with the statute. In this case, therefore, the Court has acquired no jurisdiction of the person of the defendant, aud is not authorized to proceed to a decree against him.


author: Patchin, J.

text:
    Margaret Tyley vs. Thomas Tyley.
    Alimony — practice or rule in allowance of.

      Circuit Court, Wayne County, in Chancery,

      February, 1870.
   Patchin, J.

This is an action for divorce on the ground of cruel treatment.

The bill avers that in December, 1842, the parties were married, and have lived together as man and wife since that time until a short time before filing the bill. It furiher avers that during said time the defendant has treated the plaintiff with extreme cruelty, as well by using personal violence as by vile and improper language. I am of opinion that the facts charged in thé bill in that respect have been sufficiently proved, and the complainant is entitled to the relief prayed.

The only question remaining, is that of alimony.

It appeal’s that these parties have lived together for more than a quarter of a century upon a farm, and by their combined efforts, each in their proper sphere, have accumulated a small competency. Eighty acres of wild land, heavily timbered, have been cleared and cultivated until the unproductive wood-lot has become a valuable farm, as appears by the testimony in the case. If the defendant, by his own muscle, has caused this transformation to take place, the complainant has been no less instrumental in the same result by her own hard labor to nourish and sustain that same muscle, without which the defendant could have accomplished nothing. It is clear, then, that in the accumulation oí the property in question, each of the parties have contributed equally It is also clear that in the distribution oí the same property each ought to share equally, and that the mere accident of sex should not be considered. When the law in its wisdom makes a distinction of that kind, it is the duty of the Courts to administer it, but when, as in the present case, it is left to the discretion of the Court, it is clearly the duty of the Court to do exact justice between the parties in the particular case, regardless of general rules and regulations handed down from former generations. One-half of the realty is in the name of the complainant and should thus remain, and the defendant should pay the costs of the Court, including one hundred dollars as solicitor’s fee, together with one hundred dollars alimony to the complainant, which will be about an equal distribution of the property between the parties; and certainly the guilty party cannot complain that he does not receive the larger portion. Let the decree be so entered.