author: Cooley Oh. J.

text:
    Pennsylvania Mining Co. v. S. P. Brady & Co.
    Plaintiffs in error being indebted to defendants in error, agreed to turn out certain copper to them, which they were to sell, upon the understanding that after retaining about sixty per cent, of the proceeds of the sale of the same in payment of said indebtedness, they were to pay over the balance of the proceeds and deliver up the original evidences of the indebtedness. It was further claimed that in case said plaintiffs in error should have anything left after paying their debts, or were ever able, that they would pay defendants in error, the amount of their loss. The property was sold, and duly accounted for, and the acceptances delivered up.
    Suit was brought to recover the balance due on the original indebtedness. The declaration was on the common counts.
    A witness (Oat) in behalf of defendants in error, swore that the settlement ■was a final one; while a witness (Brady) for the plaintiffs in error, testified that it was conditional.
    The court charged the jury, that if the copper received was to discharge the debt, the plaintiffs could not recover. Also, that if the company was only to be thereafter liable conditionally to the plaintiffs, then they could not recover, because they had not sued on the new agreement. Counsel for the defendant then requested the court to charge the jury, that if they believed either of said witnesses, and found the facts to be as testified to by either of them, then there was a new agreement on which the plaintiffs were bound to sue and declare, and that not having done so, they could not recover. The request was denied, and the jury gave a verdict for the plaintiffs.
    Held, that the request should have been granted. The testimony of Oat was entirely inconsistent with any right of recovery, and that of Brady clearly showed that a new contract had been substituted for the old one. The testimony was unambiguous, and not open to two constructions, and the request was not therefore objectionable in form. The plaintiffs should have sued on the new agreement.

      Heard January 8th and 9th.

      Decided January 13th.

      Error to Wayne Circuit.
    This was añ action to recover a balance claimed to be due to Brady & Co., for goods sold and delivered.
    The declaration was in assumpsit, upon the common counts.
    The defendant pleaded the general issue, and gave notice of set-off, payment, accord and satisfaction.
    Judgment was rendered for the plaintiff.
    The errors assigned are based upon refusals to charge, by the circuit judge; and which are stated in the opinion.

      A. W. Bud, for plaintiff in error.
    1. The new agreement suspended the plaintiffs’ debt, and they had no right to sue on the original acceptances, pending the execution of the agreement; and on being carried out, it extinguished that right, for it expressly required their surrender.
    And if true, it necessarily in like manner suspended the the right to sue on the original contract of purchase, and, as we shall claim hereafter, equally extinguished that, provided there ever was any such right, after giving the acceptances.

      a. It released endorsers, if there were any, and so freed the acceptances from liability to dishonor.

      b. It gave defendant a good cause of action against plaintiffs for the surplus proceeds of the copper sold, had they refused to remit it.

      c. It is an entirely new contract, and wholly different from that of the acceptances of the original contract of purchase.
    Its terms differ as to time, mode, and manner of payment, and amount to be paid.

      d. It was a good defense in this case as payment.

      2. If not a good defense as payment, it was such as accord and satisfaction.

      a. If not a good defense, as payment or as accord and satisfaction, it was such as a substituted contract, on the principle' of a release or discharge.
    All the writers on moral law tell us that upon the surrender of the acceptances, they and the debt thereby secured are to be presumed forgiven and extinguished.— Puffendorf.

    Such, too, is the legal presumption, from defendant’s possession of the acceptances.
    There is nothing in the case to meet or explain away this presumption.
    3. The plaintiffs got and now hold all their rights under the contract: the copper, its proceeds to the amount agreed on, and, according to Brady’s testimony, defendant’s conditional promise to pay them 83,500.
    The substituted contract is all that is left of the whole transaction on which to allege or sue for any further liability to plaintiffs.— 5 Ham. 375; 2 B. and Ad. 328; 1 O. M. and B. 741; 29 Barb. 156.
    The fact that a substituted contract is a valid defense, proves the necessity of declaring upon it.
    This mode of defense proceeds on the principle that the substituted contract is a release and discharge, even if in the particular case it be not technically payment, or accord and satisfaction.
    Where creditors made an agreement for settling with their debtor, which was executory as to both parties, and the debtor assented to it, it was held, even if not strictly an accord and satisfaction, to be a defense under the general issue to a suit, on the original contract by way of subtituted contract.— Good v. Cheeseman, 2 B. and Ad. 328.
    4. The agreement was conditional, assuming Brady’s testimony to be true.
    A conditional contract must be declared on specially.- — 4 Campbell 201; 6 Wend. 394; 1 Hill, 526; C. and C. Cases 279; 5 D. and B. 482; Story on Prom. Notes, § 27, note 3.
    In declaring on the common counts, plaintiff must allege an absolute and unconditional promise. To allege a conditional promise would be inconsistent with tbe nature of the counts, without dictum or precedent to support it, and bad on demurrer. .
    If he could not allege it, he could not prove it; and if he could not prove it, it could not avail him, if proved.
    5. This court has already in this case passed on the legal effects of the agreement as testified to.— Penn. M. Co. v. Brady et al. 14 Mich. 260.

      Moore & Griffin, and J. P. Whittemore, for defendants in error.
   Cooley Oh. J.

Brady & Co. brought suit against the Pennsylvania Mining Company to recover a balance due for goods sold and delivered to the Northwest Mining Company, a corporation of which the Pennsylvania was the successor, and, therefore, in law, as it is conceded, liable for its debts. No question is made in regard to the original liability, but the mining company claim that they have been discharged by an accord and satisfaction, or that, if they are liable to Brady & Co. at all, it is only upon a conditional agreement which has been substituted for their original indebtedness, but which is not counted upon in this suit.

There are certain facts in the case which are undisputed. The account of Brady & Co. with the Northwest Mining Company was made in the fall of 1860, and in April, 1861, acceptances were given for the amount, payable in June and July following. Before these acceptances fell due, Samuel P. Brady went to Philadelphia, where the company , had its business office, and there had an interview with the board of directors, in regard to some arrangement of Brady & Co.’s claim. It was assumed in that interview, on both sides, that the company were unable to pay their debts in full, and it was at first proposed that they should give to Brady & Co. bonds, at rates which would have realized them about sixty per cent, of their claim, if they could have sold them in the market; but a difficulty being experienced in making this sale, Brady finally concluded to take of the company a bill of sale of a quantity of copper, supposed to be about 50,000 lbs., then in transit from Eagle Harbor to Detroit, with the understanding that it was to be sold in market, and that after retaining fro'm the proceeds $5,743.08, which was the sum they had hoped to realize from the bonds, Brady & Co. should pay over to the mining company the balance : and a bill of sale of the copper was made by the mining company to Brady & Co. accordingly. As to whether this arrangement should constitute a complete discharge of their demand, Brady, who was examined as a witness in the case, says: “I represented that taking sixty cents on the dollar as a compromise was a pretty hard case, having saved the company by stepping in and advancing them their supplies after they had met with disaster by fire at Eagle Harbor, when, if I had failed to do so, the company would have had to stop mining for the winter. They stated it was a very hard case, or words to that effect, and that if they were ever able, I should be paid every dollar of the original debt. This was stated at the time of the negotiations which resulted in the final settlement while they were there. The next day I read this memorandum to Mr. Day, the Secretary and Treasurer, and to it he assented:

“ ‘ Phuadelphia, June SO, 1861.

It is understood in the settlement that took place yesterday between S. P. Brady & Co. and the Northwest Mining Company, that in case said company have any thing left after settling their debts, or are ever able, they will pay to S P. Brady & Co. thirty-five hundred dollars, the amount of loss sustained by them in the above settlement.’ ”

[ Signefl liy Mr. Day, as witness.]

Mr. Brady also says, that under this arrangement, the acceptances were to be delivered up to the company, and that this was subsequently done. On his being examined a second time, the following questions and answers appear:

“Q. State whether in the settlement which you had with the board of directors of the Northwest Mining Company, on June 19, 1861, it was in any way made a condition of the company’s turning out to yon the copper, that you should absolutely discharge your debt against the company, and whether any receipt was taken or memorandum made, or words used by any one on that occasion, embracing or containing such a condition?

“A. I do not think there was anything said in relation to my fully releasing the company on my claim against the company. On the contrary, I think it was understood that if the company had anything left after the payment of their debts, or if .they were ever able to pay, I should have the full amount of the balance due me.

“Q. State as fully as you can remember what was said embracing the understanding of which you have spoken.

“A. I represented to the company my disappointment at not receiving more than $5,743.08, and that it was rather hard, inasmuch as I had stepped forward and advanced the company means to go on for the winter, after they had met with a serious disaster by fire at their mine on Lake Superior, when, if I had not done so, they would probably have been compelled to stop, and I thought they ought to do better by me; to which they remarked that in case they had anything left after the payment of the debts, or were ever able, they would pay me every dollar.

“Q. State to what point or subject of conversation the attention of the parties was directed solely upon that settlement between the company and yourself.

“A. My purpose was to get out of the company all I could at that time; and theirs seemed to be to give me all they could consistently with the claims of their other creditors. They seemed particularly anxious to settle with me, because of the effect which they represented it would have upon others.”

Brady’s testimony was all which was put in by the defendants (below) to show this settlement. The plaintiffs below gave in evidence the depositions of George B. Oat and others, who were at that time directors of the mining company, and who testified to the arrangement made with Brady, substantially as he stated it, except that they claimed the arrangement to have been a full and final one, and denied the agreement on the part of the company to pay the balance of Brady & Co.’s claim conditionally, though they admit that there was some talk by individual directors to that purport. These depositions, together with those of Brady, constituted all the evidence in the case bearing upon the turning out of the copper by the company, and as to what the agreement was which was then had in regard to it. The copper was subsequently sold by Brady & Co. for an amount exceeding $5,743.08, and the surplus above that sum duly paid over to the company.

- The present action is brought upon the original indebtedness, and not upon any conditional promise. If the plaintiffs below are entitled to recover at all, it is because the original debt has remained unaffected by the turning out of the copper and the application of the proceeds, except so far as those proceeds reduced the amount by payment. This court, however, has decided, that if an agreement was made between Brady and the company by which the $5,743.08 was to be in satisfaction of Brady & Co.’s claim, except in case they should have anything left after settling their debts or were ever able to pay, then by such agreement the original indebtedness was discharged, and the company can only be made liable in a suit on the substituted agreement, and by proof showing that property was left, or that ability to pay exists. — ■ Pennsylvania Mining Co. v. Brady, 14 Mich. 260. And we are unable to discover anything in Brady’s testimony which has any tendency to show any expectation or understanding on tbe part of any of the parties that the original debt was to remain after the arrangement he testifies to was entered into. His testimony is not open to two constructions. It is impossible, as it seems to us, to come to any other conclusion, than that the parties fully under-r stood at the time, that the only liability which should thereafter remain against the company, should be the conditional liability which Brady had so carefully specified and set forth in his written memorandum witnessed by Day.

Hnder these circumstances, as it is very clear that all the testimony put in by the plaintiffs themselves touching this arrangement was inconsistent with any recovery by them, inasmuch as it showed an absolute and unconditional discharge, it would seem impossible for the plaintiffs to recover at all. The court correctly charged the jury, that if they should find from the evidence that a new agreement was made between Brady and the company on June 19, 1861, by which the $5,743.08 was either to be in absolute discharge of the debt, or was to be a conditional discharge, then the plaintiffs could not recover. Nevertheless the jury found a verdict for the plaintiffs.

Now as all the evidence given in the case tended to show a substituted agreement, and the only question which could arise upon it was whether the discharge was an absolute or a conditional one, it seems evident either that the jury acted perversely, or that they were misled by something in the charge or by refusals to charge. Perverse action in the jury is not to be presumed,1 and the charge of the court, so far as it goes, is clearly correct. It only remains to be seen whether there has been any refusal to charge of which the defendants below could complain.

The circuit judge was asked to charge the jury, that, if they believed the testimony of either Oat or Brady, and found the facts to be as testified to by either of them, then they were instructed that there was a new agreement on which the plaintiffs were bound to sue and declare, and that not having done so, they could not recover in this action. This request was declined. ,

Two objections are made to the request:

1. That the substance of it is covered by the charge actually made.

In regard to this, we think the charge as given is one which would not permit the jury, if they followed it, to render any verdict for the plaintiffs unless they misapprehended entirely the purport of the evidence which had been laid before them. The court had charged them that if they found either an absolute or a conditional discharge established, the plaintiffs could not recover; and all the evidence tended to show the one or the other. But inasmuch as the discrepancy in the testimony related solely to the conditional nature of the arrangement, and that was an immaterial fact in the present case, we discover no occasion for putting a hypothetical case to the jury, and are of opinion that it would have been proper to charge them as requested. Such a charge could leave them in no doubt as to the rule which must govern the case; while it is apparent that, under the charge as given, they erroneously supposed there was evidence in the case from which they would be warranted in returning a verdict for the plaintiffs consistent with their instructions. Had the charge asked for been refused on the ground that it was covered by the instructions actually given, the jury would have been less likely to be misled; but they might fairly infer, after the refusal, that the judge considered the evidence in the case consistent with a recovery by the plaintiffs under the instructions he had given.

2. It is objected that the defendants were bound to state, in their request, the particular facts which they considered established by the testimony of Brady and Oat, and which they claimed constituted the new agreement, so that the jury might be charged in reference to such facts, and on the hypothesis-that they found them established; and that it was improper to give instructions based upon the hypothesis of their believing a particular witness, when perhaps the conclusions they might draw from the testimony of that witness might be different from those which would be drawn by counsel or court.

So far as the testimony of Oat is concerned, it is clear to our minds that it was not susceptible of two interpretations. We have already expressed the same view in regard to the testimony of Brady. If it were fairly open to two conclusions, the objection would have force. But the facts he had testified to were few and simple, and there was no danger of misleading the jury by instructing them as prayed. Nothing could possibly be gained by repeating the facts to which he had testified in the request. The case was peculiarly one where precisely such a charge was most likely of all others to convey to the jury most clearly the meaning of the judge, and to enable them to apply it without error to the case before them. There was neither ambiguity nor confusion in the testimony of either Brady or Oat, and neither was qualified by any other testimony on a point material to the case. And as no other charge could have presented to the minds of the jury their duty in the case in -more unexceptionable manner, we think the court erred in not complying with the request.

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

The other justices concurred.


source: Caselaw Access Project

author: Graves J.

license: Public Domain

text:
    People ex. rel Foley v. Augustus Kopplekom.
    Where votes were cast at an election, by legal voters, but who had not been registered, for the reason that there was no acting board of registration: Held> that the statute requiring registration, being grounded upon the same article of the constitution which gives the right to vote, is imperative, and must be complied with before the elector can vote; and that the omission by the board of registration to meet, is of no avail to the elector.— Const. Art. VII, § 6.

      Heard January 9.

      Decided January 13.

      Quo Warranto.

    The information in this cause was filed to test the right to the office of Sheriff, for Houghton county.
    An issue of fact having been joined, the cause was referred to the Houghton Circuit for trial.
    ■The cause was tried without a jury.
    The court below found that the defendant was not guilty of intruding into the said office. No exceptions were taken in the court below.
    The report of the circuit judge being now before the court, the defendant moved for judgment.

      A. W. Bud, for respondent.
    1. The Registration Law is constitutional.
    The general purpose of the law, as expressed by its title, and clearly indicated by its provisions, is “to preserve the purity of elections, and guard against the abuses of the elective franchise by a registration of electors,” and the provisions are clearly promotive of those purposes.
    The constitution simply gives the right of the elective franchise and prescribes the qualifications of voters; but leaves the mode and manner of exercising the right open to regulation by the Legislature, and for this purpose it is, and ever has been, a fruitful subject for changing legislation. —12 Piole. 485.
    Where the constitution has established a political right or privilege, but has not particularly designated the manner of its exercise, it is within the constitutional limits of the legislative power to provide such reasonable and uniform rules in regard to its exercise, as may be necessary to secure and protect the right or privilege thus established, and regulate the manner of its exercise.- — -12 Mass. 485; 44 N. E. 398.
    It may be objected that a qualified voter, or all the qualified voters of a town, might lose their votes for the want of a register, from accident, ignorance, mistake, neglect, or fraud.
    To this we answer:

      a. No law ever does or can perfectly provide against possible failure of execution, from one or more of the causes suggested by the objection.

      b. The constitutionality of á law can never depend upon its execution or non - execution, in fact.

      c. To lose the right of voting from such causes, is not to be disfranchised by the law; but is a result produced in opposition to, or in defiance of, the intent and provisions of the law.

      2. The law being constitutional, its vital provisions now in question are mandatory, viz: ,

      a. There shall be “ a register for every town, city and village.”

      b. The register shall be “in the hands of the inspectors of election, to be used by them during the election.”

      c. The Inspectors “shall not receive the vote of any person whose name is not written in the register.”
    Chief Justice Shaw speaks of similar provisions in the Massachusetts statute, as being “only a reasonable regulation of the mode of exercising the right of voting, which it may be competent to the legislature to make valid and binding, and to which both voter and presiding officers at elections are authorized and bound to conform.”
    It follows that if there be no register in existence, or if the election be conducted without a register in the hands of the inspectors, to be used by them at the polls during the election, then in either case the votes received are received illegally, and in the face of an express x>roliibition of the statute, and to be rejected in a judicial canvass.
    Such being the case here, the entire vote of Franklin township should be rejected as illegal and invalid, and judgment be rendered for the respondent.

      Wm. L. Stoughton, Attorney General, and Moore & Griffin, for People.
    The constitution declares and defines the qualifications of voters, leaving to the legislature the right to pass laws to preserve the purity of elections, and guard against abuses of the elective franchise.— Const. Art. VII, §§1-6.
    2. In the exercise of this power, the Legislature cannot add new qualifications. They cannot restrict nor enlarge the conditions of suffrage, nor the qualifications of the electors. 5 Wis. 316; 9 Id. 283; 13 Mich. 127.
    3. The registry acts of this state can be sustained as constitutionally valid, only on the ground that they are intended and adopted only to guard against abuses of the elective franchise.
    They do not create nor enlarge the right to vote, and they cannot limit or destroy it, unless they provide the means for the voter to act in compliance with them, and so to secure the enjoyment and exercise of his constitutional rights.
    The legislature may prescribe the mode of trying the right to vote, and regulate the evidence of such right; but this is as far as they can go.
    4. This, in fact, is the scope of the registry law. The right to vote results from the constitution. The registry is but a means of preventing fraud, by requiring all voters, who are such under the constitution, to enrol their names before designated officers. — 3 Allen¡ 1. *

    5. It appears in this case that there was no registration of voters, and no opportunity to the electors to register their names.

      There was no meeting of the board at all after 1864, and no opportunity to register on the day of the election.
    The court below properly decided that there was no legal register in existence.
    In connection with these are the facts, that an election was held; that the electors of Franklin did vote; that they were legal voters but for registration; and that they had no opportunity to register.
    We claim that this was a good election under the constitution, and that the rights of the voters, as secured by the constitution, cannot be abrogated by the neglect of the officers to comply with the directions of the Registry act.

      a. To validly disfranchise a voter, he must himself have been in fault, in not complying with the reasonable requirements of the statutes.
    The regulation must be reasonable in itself, and he must have an opportunity of compliance.
    The principal authority on the validity of this class of acts, is that of Capen v. Foster, 12 Pick. 485.
    Now, this case requires the adoption of reasonable and uniform regulations, and not such as “ should subvert or injuriously restrain the right itself.”
    The law, then, would be invalid, if it did not give the voter the opportunity to register.
    b. We contend that the same consequences would follow if the officers designated by the law did not afford the opportunity to the voter to register.
    If, in such cases, the legal voters actually came forward and deposited their ballots, the default of the officers to comply with the directions of the statute, does not invalidate the result any more than their default in other cases in complying with positive directions.
    Ministerial officers cannot, by their wilful omissions, destroy rights of this character, vested under the constitution? when there is no default on the part of the voter.
   Graves J.

It appears from the' finding in this case that there has never been any valid or complete registration of voters, or any legal board of registration in the township of Franklin in the county of Houghton, since the organization of the township in 1864; and that at the general election, on the 6th of November, 1866, in the several townships of said county, whereat the relator and respondent were respectively voted for, for the office of Sheriff, a large number of electors, in- said township of Franklin, without having been registered, for the reason that there was no acting board of registration, did nevertheless actually vote for the relator; and that the votes thus given, if allowed to him, would secure to him a majority, and if disallowed, would leave him in a minority. The question, and the only question presented, therefore, for our consideration is, whether the votes thus given for the relator, were legally cast.

It is admitted that the act for the registration of voters is valid; but it is argued that no one, otherwise qualified, can be deprived of his vote for being unregistered, when the officers designated to administer the act, fail for any cause to provide a registry.

The essence of the argument is, that the right to vote results from the Constitution, and that every provision of this act to preserve the purity of elections, which requires electors to' be registered, and prohibits all voting without it, is always to be considered as subject to the tacit'exception that the means for registration, in accordance with the act, are certainly .provided.

It is not to be disguised that this reasoning has considerable strength, but it has failed, however, to satisfy us.

The statute in question is grounded upon the same article of the Constitution which gives the right to vote, and its object, as expressly declared in the title is, “further to preserve the purity of elections, and guard against the abuses of the elective franchise, by a registration of electors.”

In accordance with this declared object, the act proceeds to provide for the organization of boards of registration, and to require the electors to register, and expressly forbids all voting by persons not registered. The administration of the statute is confided to the local officers elected by the people themselves, for the discharge of other municipal duties, and who may be compelled by law to act. It contemplates general obedience and continuous administration, and nowhere, in terms, makes any provision for its own nullification, either thfough violence, or the negligent or willful failure of officers to organize or preserve boards. It does not speak the language of a mere offer, or proposition to the electors, to register or not, but utters the language of law; unconditional, absolute, imperative j and declares, that all who do not register shall not vote.

If the legislature had expressly declared that no one should be deprived of his vote for not registering whenever the means of registration should be uuprovided, .the statute must have been regarded as equivalent to a legislative proposition to the electors to register or not, as they should see fit; and the introduction of the same idea, by construction, would produce the same result.

That interpretation, then, which to make valid the votes of electors, where there has been no registration, would make the act subject to an unexpressed condition, by means of which it could, at any time, be practically extinguished in whole townships, is manifestly opposed to the 1a.ngna.gp, and apparent scope, spirit and purpose of the law.

Eejecting then, as we must, this interpretation, we find that those votes upon which the relator has based his claim, were given and received in plain violation of law, and were consequently void. Judgment must therefore be entered for the respondent, with the costs of both courts.

The other justices concurred.


author: Campbell J.

text:
    Elisha D. Eames, v. Lucy C. Eames, Adm’rx of Lovett Eames.

      Specific perfot'mance: Sale of patent right. Complainant bought at auction sale an interest in a patent right, with full notice that the purchase was subject to certain liens and incumbrances. No such conveyance, however, had been made to the incumbrancers as would vest in them a legal title under the patent laws. In a bill for specific performance, complainant claimed that defendant should execute an absolute assignment of the entire interest in said patent.
    Held, that, whether the sale was properly made subject to these equities or not, the bidders so understood it, and the purchaser could not rightly obtain more than he had bought, and that as the purchase was subject to the rights of third parties, he must take his transfer in that form. The defendant could not have equitably conveyed the entire interest without providing some safeguards for such equities as existed, and the court will not permit complainant to obtain unconscientious advantages which must lead to further litigation.

      Heard January 9th.

      Decided January 13th.

    Appeal in Chancery from Kalamazoo Circuit.
    The bill in this cause was filed to compel the specific performance of an alleged contract of sale at auction of certain patents.
    The case was heard on the pleadings and proofs, and the bill was dismissed.
    The facts are stated in the opinion.

      May <& Bucle, for complainant.
    1. A court of equity has jurisdiction to decree the specific performance of a contract relating to personal property, where the party injured by the failure to perform such contract can have no adequate remedy at law. — Story Bq. Jur. §712 to §742. In this case, owing to the peculiar nature of the subject matter of the sale, there could be no adequate compensation in damages for the failure of the vendor to convey the property sold to the vendee.
    As regards the alleged assignments to other parties, neither -of them were recorded in the patent office; consequently, if Moses Eames & Morgan were parties to this suit, these assignments could not be made the foundation of a claim or a ground of defense. — 1 Story, 273.

      J. D. Burns, for defendant.
    The complainant purchased the patents, subject to certain liens, of which he had full notice.
    He cannot claim more than he bought.
    When a party seeking a specific performance of a contract, insists upon obtaining an unconscionable advantage, equity will dismiss his bill. — 2 Hamm. 18; 2 Blaolcf. 431; 1 Smith’s Gh. Prac. 489; Fry on Spec. Perf. 99; §203 and note.

   Campbell J.

Complainant filed his bill to enforce, specifically, an auction sale of an interest in certain patents, belonging to the assets of the decedent, Lovett Eames, which complainant alleges he purchased for one thousand dollars, and which he alleges the defendant refuses to convey to him except subject to certain mortgages, liens and claims, held or pretended to be held by E. W. Morgan, which complainant asserts are not real encumbrances or rights. The bill calls for an answer under oath.

The answer sets up these several claims and encumbrances, and that on the sale, and before the property was offered to bidders, full notice was given of their existence, and that the sale would be subject to them, and must be so accepted. The testimony shows very clearly that such a notice was given, and that complainant had full knowledge of it; and there is also proof upon the rights of the various encumbrancers, but, as they are not made defendants, there is no occasion to consider these in detail.

We think the bill was properly dismissed as entirely barren of equity. Complainant can have no right to claim any more than he purchased, whether the administratrix was right or wrong in making a sale, upon such representations. The interest, as represented on the sale Avas but a partial one, and subject even then to heavy encumbrances. It must be assumed that all bidders acted upon that supposition, and that the property would haAre sold for very-much more had it stood in any better position. If complainant obtained it under such circumstances, and should iioav be allowed to get a different title, it would be alloAVing him an inequitable advantage over the estate as well as over other bidders.

It would seem, from the testimony, that while the rights of Mr. Morgan are apparently valid, he has never received such a conveyance as is required by the patent laAvs to make his title valid at larv.

An unrestricted conveyance to complainant would vest in him such a legal title as would put it in his power to embarrass, if not farther to affect the rights of Morgan, and would tend to provoke litigation and further injustice and fraud. The administratrix could not equitably have conveyed the entire title without providing some safeguards for these equities, and her course on the sale appears to have been fairly designed to do this. At all events, the complainant has no right to ask to be put into any position which will give him such unconscientious advantages beyond those he had a right to expect when he purchased.

The decree should be affirmed, with costs.

The other justices concurred.


text:
    Jurdon S. Mercer v. Alexander Mitchell.
   Case made after judgment from Saginaw Circuit.

Judgment was rendered in tlie court below in favor of plaintiff, and was affirmed in this court, bj stipulation.


author: Christianoy J. Campbell J.

text:
    William Hill v. The People.

      Criminal cases: New trial: Questions of law: Exceptions: Practice. Where a question raised by a motion for a new trial in a criminal case is one of law, and the judge has found the truth of the facts stated in the affidavits on which the motion is based, or in his decision assumes the truth of the facts, and the whole matter is incorporated in the exceptions, they constitute a part of the record.
    Where, in such case, the question raised is one of law, it is the duty of the judge to find as to the truth of the affidavits, and if true, to incorporate the motion, the facts and decision, thereon with the exceptions taken.

      Trial for murder: Prisoner's Hght to a jury of citizens: Alien: Waiver: Duty of court to guard prisoner's rights. It appeared on a trial for murder that one of the jurors was an alien; but the fact was unknown to the defendant or his counsel, until after the verdict.
    On a motion for a new trial, it was held that it was incompetent for a defendant to waive his constitutional right of a trial by twelve men, and that it must be treated as though he had been tried by but eleven jurors. Held further, that it is the duty of courts to see that the constitutional rights of a defendant in a criminal case should not be violated, however negligent he may be in raising the objection.

      Heard January 10th.

      Decided January 13th.

    Error to Alpena Circuit.
    Tlie defendant below was- convicted upon an information for murder.
    After the trial it was discovered that one of the jurors was an alien.
    A motion was made for a new trial, founded upon affidavits tending to show the alienage of the juror.
    The motion was overruled.
    Error is assigned upon said fact.

      A. C. Maxwell, and T. G. Grier, for plaintiff in error.
    The ease presents the single question, whether an alien is or is not a competent juror in a capital case.
    The Compiled Laws, § 6068, makes provision for the trial of criminal cases and provides that jurors shall be drawn and returned as provided by law for the trial of issues of fact in civil cases.
    The statute, Oomp. L. §4351, provides,
    That the jurors selected shall be assessed on the assessment roll of the township or ward for the same year: shall be suitable persons having the qualifications of electors. They shall be of approved character, and free from all legal exceptions.
    The statute, § 6082, entitled, “ Of new trials and exceptions in criminal cases,” provides that any person who shall be convicted of any offense before any court of record, considering himself aggrieved by any opinion, direction or judgment of the court in any matter of law, may allege exceptions to such opinion, direction or judgment, etc.
    It is under these provisions of this statute that the present bill of exceptions was taken to the decision of the Circuit Court refusing a new trial.
    As to the common law qualifications of a juror (3 Blade. Oom. 362), the American cases are not in entire harmony; but we say that the weight of authority shows that a trial before an alien juror is no trial; and that a new trial ought to be granted.
    Among those cases which hold without qualification, that the verdict is a nullity, or that a new trial should be granted, if the defect of the qualification of the juror was unknown. See 15 Vt. 61; 1 Conn. 401; 16 Ind. 298; 26 Ill. 347; 5 Wis. 324; 1 Scam. 476; 4 Bibb, 90; 13 Smedes and Marsh. 286; 1 B. Mon. 213; 32 Me. 310; 47 Id. 593; 6 Clark, Ia. 162; 10 Ia. 308; 18 N. Y. 128; 1 Met. Ky. 365; 41 N. H. 550, 551; Bishop Grim. Proceed. 761-2; 2 Doug. 367; Comp. L. §§ 27, 28, p. 61.

      Wm. L. Stoughton, Attorney General, for the People.
    1. A motion for a new trial founded on affidavits, is addressed to the sound discretion of the court, and error can not be assigned upon a refusal to grant such motion.— 1 Gomp. L. § 6082; 2 Wharl. Am.. Gr. L. §§3079, 3232; 11 Gonn. 415; 1 Doug. 106; 2 Mich. 404; 4 Id. 336; 12 Id. 368, 440.
    2. The affidavit of the juror, William Dickson, was inadmissible.— 5 Goto. 106; 6 Id. 53; 5 Dorara. 348; 1 Gal. 403; 22 Pick. 136; 5 Ired. 401.
    The remaining affidavits were upon information and belief, and states no facts upon which the court could be called upon to act.
    3. The affidavits upon which a motion for a new trial are founded, form no part of the record; and can not be looked into for the purpose of determining whether the court erred or not.— 8 Mich. 117.
    4. That which is a cause for challenge is not necessarily a ground for a new trial; and although there is some conflict in the American cases, the rule seems to be settled upon the weight of authority, and upon principle, that the verdict of a jury will not be disturbed on account of the incapacity of one of the jurors who might have been challenged but was not, especially where no injury is shown to have arisen from that cause.— Whart. Am. Gr. L. §3220; 19 Geo. 628; 2 Bay, 150; 4 Dali. 353; 6 Greenl. 307; 2 Porter, 121; 2 Ala. 297; 17 Id. 434; 1 Pick. 38; 9 Mass. 107; 14 Id. 205 ; 2 Ohio, St. 164; 15 K O.L. 252; 12 Bast, 229; 13 Gonn. 453; 20 Id. 37; 3 Greenl. 215; 7 Oranch, 290.
    5. The defendant did not exhaust his challenges — Gomp. L. §6072 — and can not allege his own negligence as a cause for setting aside the verdict, and it is not shown and does not appear that the error complained of was intentional, or that it affected him injuriously, and a new trial ought not therefore to be granted.— 6 Mich. 287; 10 Id. 9.
   Christianoy J.

The defendant below was tried and convicted in the Circuit Court for the county of Alpena for the crime of murder. He moved for a new trial on the ground that "William Dickson, one of the jurors before whom the trial was had, was an alien, and not a citizen of the United States or of this state, and that this was unknown to the defendant or his counsel until after the rendition of the verdict.

These facts were shown by affidavits, and appear to have been undisputed.

The circuit judge refused to grant the new trial, not upon the ground that these facts were not properly and fully established, but upon the broad ground that they did not constitute sufficient ground for a new trial. ' To this decision exception was taken by the defendant; and the judge has very properly certified the whole proceeding had before him for a new trial, his decision thereon, and the exceptions, all of which are embodied in the return to the writ of error.

It is objected by the Attorney General that the affidavits, in support of a motion for a new trial, form no part of the record, for which he cites Crippen v. The People, 8 Mich. 117. It is true that as mere affidavits, without anything equivalent to a finding by the court upon the facts stated, they would constitute no part of the record for our action-It is also true that when the motion is based upon matters of mere discretion, neither the refusal of the motion nor the finding of the court upon the facts stated in them, would form any ground for a reversal of the judgment.

But when the question raised by the motion is one of law, and the judge has found the truth of the facts stated in the affidavits, or in his decision upon the motion takes those facts for granted, and the whole matter is incorporated in the exceptions which he has signed, as in this case, we think the facts, the motion based upon them, his decision thereon, and the exceptions, constitute a part of the record for onr adjudication. And whenever in such a case the' question raised can be fairly claimed to be one of law, we think it is the' duty of the judge to find as to the truth of the affidavits; and if he finds them to be true, to incorporate the motion, the facts and his decision thereon, with the exceptions, as in the present case. It would seem to be the only mode left to a defendant of obtaining a review upon important questions of law thus raised.

We must, therefore, consider the question raised by the motion for a new trial, as properly before us for adjudication. And we must proceed upon the admitted fact that one of the jurors was an alien, and not a citizen or elector of this state.

The statute —2 Comp. L. §4351 — requires that jurors shall have the qualifications of electors. It is admitted this juror was not thus qualified. This is not a case of a partial disqualification growing' out of,’ or connected with his relation to this or any other particular cause; but a total disqualification to be a juror in any case. The law does not recognize him as a juror at all; and in legal contemplation the case is to be treated as if he had never been placed upon the jury; if not still worse, as an outsider who had no right to participate in their deliberations, and whose illegal participation may have had an improper influence upon the verdict. The most favorable view for the prosecution which can be taken, is to consider the place of this juror to have been left blank, and that this jury therefor consisted of but eleven men.

Our constitution in retaining the right of trial by jury, tacitly refers to and adopts the common law number. In criminal cases in courts of record this is put beyond all doubt by the 28th section of article 7. “In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than twelve men in all courts not of record.”— Brown v. State, 8 Blackf. 561; Work v. State, 2 Ohio, St. 296; Cancemi v. People, 18 N. Y. 128; Campau v. Detroit, 11 Mich. 276; 2 Bennett v. Heard Lead. Cr. Gas. 336, note.

This position is not denied by the Attorney General, but it is insisted that by neglecting to challenge this pretended juror, the defendant has lost the right to avail himself of the objection; in other words, that he has waived all objection to this juror, or to a trial by a jury of eleven qualified jurors. It might be a sufficient answer to this position of waiver, to say, that our statutes giving the right of challenge, when considered in connection with the provisions in reference to the qualification and summoning of jurors contemplate a panel of twelve qualified electors already in the jury box before he is called upon to exercise the right of challenge, and that his right to challenge is, by the law, supposed to be exercised upon such men only as the law recognizes as competent to be called for jurymen: in other words, electors. Suppose a woman, or a child six years of age, is called upon the panel, can the defendant be called upon to exercise his right of challenge, till their places have been supplied by electors?

But we propose to consider the principle of this doctrine of waiver so far as to see whether it can be properly applied to such a case, should the case be supposed to turn upon the point.

Most of the authorities which go to the extent of holding that a neglect to challenge is a waiver of any objection to a juror thus totally disqualified, are civil cases, in which it may, perhaps, have been properly held that in the enforcement of mere private rights and duties, it was competent for a party voluntarily to waive or relinquish this benefit of a provision of the constitution or the law, intended for his protection. And doubtless this doctrine of waiver may be properly applied in all cases where it would have been competent to stipulate in advance for the trial before such defective jury. But this, it seems to us, is the only intelligible principle, in such a case, upon which the doctrine of waiver can rest; and that wherever it has been carried beyond this principle it can rest upon no sound basis.

The doctrine rests upon assent; in other words, when reduced to its final analysis, upon contract. Under our constitution, in civil cases, there can be no reasonable doubt of the competency of parties to waive such an objection, or to stipulate for a trial by a jury of less than twelve; since they can waive the right of a jury trial altogether, and are held to have done so unless it is demanded.

But a criminal prosecution, in which the people in their sovereign capacity prosecute for a crime against the laws of the whole society, and seek to subject the defendant to punishment, must, it seems to us, be considered as a proceeding in invitum, against the will of the defendant throughout, so far as relates to a question of this kind, or any question as to the legal constitution of the court or jury by which he is to be tried. It would be adding materially to the generally, recognized force of the obligation of contracts, to hold that a defendant charged with a crime, might, without a trial, enter into a binding contract with the prosecuting attorney (representing the State) to go to the penitentiary for a certain nuinber of years in satisfaction for the offense. And yet it would approximate such a position, to hold that he might be bound by a contract providing for a trial before a court or jury unknown to the constitution or the laws, the result of which trial might be to place “him in the same penitentiary.

The true theory, we think, is that the people, in their political or sovereign capacity, assume to provide by law the proper tribunals and modes of trial for offenses, without consulting the wishes of the defendant as such; and upon them, therefore, devolves the responsibility, not only of enacting such laws, but of carrying them into effect, by furnishing the tribunals, the panels of jurors, and other safeguards for his trial, in accordance with the constitution which secures his rights. The government — the officers of the law — bring the jurors into tlie box; lie has no control over the matter, who shall be summoned or compose the panel, upon which he may exercise the right pf challenge; and the prosecution must see that electors only are placed there, as the law requires.

But independent of all theories, and as a practical question, we think there would be great danger in holding it competent for a defendant in a criminal case, by waiver or stipulation, to give authority which it could not otherwise possess, to a jury of less than twelve men, for his trial and conviction; or to deprive himself in any way of the safeguards which the constitution has provided him, in the unanimous agreement of twelve men, qualified to serve as jurors by the general laws of the land.

Let it once be settled that a defendant may thus waive this constitutional right, and no one can foresee the extent of the evils which might follow; but the whole judicial history of the past must admonish us that very serious evils should be apprehended, and that every step taken in that direction would tend to increase the danger. One act or neglect might be recognized as a waiver in one case, and another in another, until the constitutional safeguards might be substantially frittered away. The only safe course is to meet the danger in limine, and prevent the first step in the wrong direction.

It is the duty of courts to see that the constitutional rights of a defendant in a criminal case shall not be violated, however negligent he may be in raising the objection. It is in such cases, emphatically, that consent should not be allowed to give jurisdiction.

In Cancemi v. The People, 18 N. Y. 128, which was a prosecution for murder, it was held that though the defendant had expressly stipulated that his case might be tried by a jury of eleven, and that the record should show a jury of twelve, he was not bound by the stipulation; that he was incompetent to make it, and that the judgment should be reversed for this cause. In this view of the law, we fully concur. — See also the cases cited in the brief of counsel for plaintiff in error.

We are aware there are some cases in England, and in this country, which appear to hold a different view. But to this extent we cannot regard them as sound in principle or safe in practice.

The judgment must be reversed, and a new trial ordered.

Graves J. and Cooley Ch. J. concurred.

Campbell J.

I concur in holding that the court below should have granted a new trial, and that the refusal is rightly brought before us by exceptions under the statute.

The objections against allowing any but our own citizens to pass upon the legal rights of parties are very strong, and it can hardly be supposed that a prisoner would imagine, under our jury system, that any one but a citizen would be summoned to try him. It would be unreasonable to require him to poll the jury to ascertain whether there was occasion to object to any one on that ground. But, inasmuch as a defect in legal qualifications is good cause of challenge, I am not prepared to say, without further consideration, that a prisoner who should be actually informed of such a defect before the jury are sworn, would not be bound to make the challenge or lose the right to further objection. I, therefore, express no opinion on such a case.


author: Ooolet J.

text:
    William J. Gordon et al. v. William Ward et al.

      Shipment of goods by vendors : Liability for loss : Agency : Carriers. Defendants ordered from plaintiffs, at Cleveland, a bill' of tobacco, and directed it sent to them at East Saginaw, by rail, giving as a reason for not sending it by water, that the railroad company would be liable for the risks. Plaintiffs sent the tobacco accordingly, accepting from the railroad company a bill of lading which exempted the company from liability for loss by ñre. The tobacco was destroyed by the burning of the Detroit & Milwaukee Railroad warehouse, at Detroit, and defendants refused to pay because plaintiffs had accepted this restrictive bill of lading.
    It appeared that the railroad companies at Cleveland had adopted this form of bill, several years previously, and notified shippers that they would not receive and send property on any other terms. The evidence was that no one, at the time this tobacco was shipped, could have got goods carried by rail, except on this restricted liability.
    It was not shown that the companies were under any legal obligation to carry under the liability of common carriers, at the common law; and the evidence rather tended to show the contrary. It did not appear that plaintiffs were guilty of any concealment, in not informing defendants of the railroad custom. In an action by plaintiffs for the value of the goods,
    Held, that there was nothing in this case to show that it was in their power to require the railroad companies to carry, on other terms, and therefore they were not in fault, and were entitled to recover.

      Heard January 10th.

      Decided January 13th.

    Case made after judgment, from Saginaw Circuit.
    This was an action brought to recover of defendants the value of certain goods sold and delivered.
    The declaration was on the common counts, and the plea the general issue.
    The defendants, who lived at East Saginaw, purchased the goods of plaintiffs, who did business at Cleveland, Ohio, and directed them to send the same by railroad. The plaintiffs did so, and took a bill of lading which contained certain restrictions on the common law liability of the carrier; amongst which was exemption from loss by fire.
    The goods were burned in the depot of the Detroit and Milwaukee Bail Boad Co. at Detroit.
    Judgment was rendered for defendants in the court below.
    The facts are stated in the opinion.

      Webber & Smith, for plaintiffs.
    The plaintiffs were directed to ship the goods in question by rail.
    The defendants had done business previously with them to a considerable amount. The plaintiffs were not aware that defendants were ignorant of the usual and only mode of shipment of goods by rail at Cleveland; but, on the contrary, had reason to believe them acquainted with it.
    Whether the conditions in the bill of lading were reasonable or unreasonable, whether the railroad company had a right to impose such conditions, or whether the conditions be void, are questions in which the plaintiffs have no interest in this case.
    They were directed to ship by rail. They did ship by rail in the usual and only mode' by which shipment could be made, and, by so doing, fulfilled their contract, and the title of the goods became vested in defendants, and the loss must fall upon them.

      B. J. Brown, for defendants.
    1. A common carrier is bound to receive and carry all goods offered for transportation, subject to all the responsibilities incident to that employment, and is liable to an action, in case of refusal.— 1 Pars, on Oont. 676; 6 Mich. 257, 261.
    2. ' But a common carrier may limit his liability by express contract or notice assented to, which is equivalent to express contract. — 6 Mich. 262; Id. 257; Redf. Rail. 270.

      a. Such assent is presumed from previous dealings. — Red. Rail. 272, 274 ' .

      b. The terms of the contract between the plaintiffs and the railroad company is a fact to be proved as any other fact, by pertinent evidence.— 5 Mich. 379.
    3. The court will presume the foreign law to be the same as our own, unless the contrary is shown. — 2 Doug. 515.

      4. In the absence of authority from the defendants, the plaintiffs could not reduce the common law liability of the railroad company as a carrier, and charge the defendants. — 3 Gamp. 414; 14 East, 375; 1 Bing. N. 0. 671; 8 T. B. 330.

      a. Such authority cannot be inferred from the custom of the Cleveland and Toledo E. E. Company, to issue receipts only in the form of the one taken on the shipment of these goods.' — -2 Sand. Sup. Ot. 137.
    It should also appear that the defendants knew of the custom at the time of ordering the goods, and acted in reference to it. — 3 Mich. 38.
   Ooolet J.

The defendants ordered a bill of tobacco from the plaintiffs, at Cleveland, and directed it to be sent to them at East Saginaw, by rail, and it was sent accordingly. Unfortunately, it was burned while in transit, by the burning of the Detroit and Milwaukee railroad warehouse, at Detroit, and defendants now refuse to pay for it.

As delivery to the carrier, in pursuance of the instructions given, would be equivalent to a delivery to the defendants, and would have the effect to vest the title to the property in them, and put it at their risk, it is clear that they should pay for it unless there is something peculiar in this case which takes it out of the general rule.

The defendants say there is this peculiarity qn the case which excuses them from payment: that the plaintiffs, without any authority, and in violation of the spirit of their instructions, entered into a special contract with the carriers, by receiving a bill of lading which exempted the carriers from liability for a loss occurring by fire, whereby the defendants are deprived of any remedy against the carriers for the loss, when, on the contrary, their duty was to send the goods under the carrier’s common law liability. The plaintiffs reply that they followed instructions literally, and that there were at the time no carriers of goods by rail from Cleveland who would receive and transport property at all except under these restrictive bills.

All the evidence we have on this subject is the following : All the railroad companies doing business at Cleveland, in 1864, adopted a form for .a receipt or bill of lading such as was used in the present case, and resolved that they would receive and transport property on no other terms, and sent round copies of it to the plaintiffs and other shippers notifying them of their determination. From that time this form has been used exclusively, and railroad agents and others testify that property would not be received, at the time of the shipment in question, unless this form was used, and that it was of no use to present it for carriage on any other terms. In response to this the defendants say, that any such rule, regulation, and notice of the carriers was illegal; that they are compellable to transport goods under their common law liability; that it was the duty of plaintiffs to insist upon their doing so in this instance, and that, having failed to do so, and entered without authority into a special contract, the consequent loss should fall upon them, and not upon the defendants, whose rights they have unwarrantably assumed to barter away.

The difficulty with this position is, that we have before us, in this record, no evidence that the plaintiffs had it in their power to compel the carriers to transport the goods on any terms different from those in the' special contract.

We are asked to assume that the railroad companies were common carriers, and subject to this obligation, on the principle that the law of another state is presumed to be the same as our own. But this principle is one to be received with some qualification. We cannot make that presumption as to those things which are usually matters of statutory regulation.- — Kermott v. Ayer, 11 Mich. 181. There are differences in this State as to the liability, in certain cases, of those carriers which have been created under our laws; and although those differences would, not, perhaps, reach the point now in controversy, it is evident that if we were to assume that the Ohio railroad companies are corporations, created to carry on business as common carriers, it would still be a question of some interest whether we could further assume, from analogy to our own general or.special laws, that the common law rules affecting their liability as carriers had not been relaxed.

Undoubtedly we can presume that the common law is in force in Ohio, and must construe the contracts of parties made in that State, and enforce their obligations, by a reference to it. But parties do not necessarily become common carriers at the common law, by receiving and transporting goods. There are questions of fact involved when it is claimed that any one has assumed that employment. The 'evidence before us tends to show that the railroad companies at Cleveland do not hold, and have not, for several years, held themselves out to carry property generally, but only for those persons who will enter into special contracts with them. We must apply the common law to the case in the light of this evidence; and we cannot say — because we are not informed — that these railroad companies are violating any law by their course of conduct. If they are, they may be liable to action; and if corporations, they may be liable to a forfeiture of corporate rights, by proceedings on behalf of the state. We have knowledge only of their course of business, which is not necessarily illegal; we cannot presume that all this time they have been acting in disregard of legal obligations; and it is not, therefore, in our power, to say that the plaintiffs did not send the property on the best available terms, and in honest compliance with the direction to send by rail.

One other objection of the defendants is somewhat plausible, and needs consideration. It is claimed that they were ignorant of the course of business of the Cleveland roads, and that their directions as to sending the goods, were given in such form as made it incumbent on the plaintiffs to apprise them of the custom. The evidence on this point is from Ward himself, who says that when he directed the goods to be sent by rail, he expressly stated as the reason that, although it would cost more, yet the time would be shorter, and they would not be compelled to insure them, as they would if shipped by water, as the railroad companies would be liable for all risks.

If it sufficiently appeared that Ward was ignorant of the mode in which the railroad companies did business, and expected his goods to be sent by common carriers as insurers against all risks, and the plaintiffs, knowing the custom, and that they could not so send them, failed to inform him, there would be strong reason for saying they had never made legal delivery of the goods. But we do not think there is sufficient in the conversation testified to by Ward, to show that he had this distinct expectation, or that, if he had, he brought it home to the knowledge of the plaintiffs. It is clear that he did • apprise them of an expectation, on his part, that risks, which he must assume for himself if the carriage was by water, he would be insured against if it was by land; and that this was stated by him as one of the inducements to send by the land route. The comparative security from loss by that route was in his mind, and was mentioned by him.

In looking over the bill of lading, it does not appear that the exemptions from liability are numerous, or such as are usually regarded by shippers as very important. They are such as are common in these contracts, even in this state, where railroad companies are not' allowed to restrict their common law liability as carriers. The consignee is much better protected under them than he is when goods are sent by water. Unfortunately, the particular cause of injury which occurred in this ease, is among those specified, and for which liability is not assumed; but the risk from this cause is comparatively slight and uncommon, and it cannot be doubted that the defendants, if they had understood fully all the facts at the time, would have considered this bill of lading as affording them better protection than any they would have received from the master of a vessel, as, notwithstanding the special clauses, it still insured them against the most ordinary dangers.

We have no reason to suppose that the plaintiffs did not believe they had complied, in good faith, with the order given them. We have no reason to think they intentionally kept back any information. There was not sufficient in the conversation with Ward to apprise them that he was ignorant of the mode of doing business by the railroad companies, and would be dissatisfied and disappointed if the goods should be sent as they afterwards were. In fact there is nothing peculiar in this case; nothing which does not frequently occur when wholesale dealers are ordered to ship by rail, and where they comply, as they believe, in good faith, with their instructions. We think the law does not warrant visiting the loss uppn them under such circumstances.

The judgment must be reversed, and the plaintiffs must have judgment in this court for $301.40, the amount now due, together with costs of both courts.

The other justices concurred.


text:
    Thomas M. Cooley v. Joshua W. Waterman.

      Tax sale, when void:' Purchaser: Non-payment of tax. When the owner of a distinct tract of land neglects to pay Ms taxes thereon, and the same is sold jointly with the land of others for the non-payment, and he becomes the purchaser of the whole, held, that the sale is void: the purchaser being in default in not paying his own tax.

      Heard January 10th.

      Decided January 13th.

    Appeal in chancery from Barry Circuit.

      The bill in this cause was filed to quiet the title to certain lands owned by complainant.
    The defendant relied upon the Auditor General’s deed for the sale of said land for non-payment of taxes for the year 1859.
    A decree was entered in the court below for complainant.

      G. M. Groswell, for complainant.
    1. It is the duty of every man to pay his own taxes, and he can gain no rights by neglecting to perform that duty.
    But when he neglects to pay his taxes, and his lands are sold jointly with' others for the non-payment, and he becomes the purchaser, the sale must be void, because based partly upon the purchaser’s own default.
    The attempt is made to distinguish the cases of Page v. Webster, 9 Mich, and Butler v. Porter, 13 Id., on the ground that an undivided interest existed. But there is nothing in this distinction. An undivided interest is recognized by the law, and the owner may pay the tax on it separately. See Laws 1858, p. 186, § 91; also Gomp. L. § 857.
    It is to be assessed separately where the owner is known. Laws of 1858, p. 180.
    The owner of one undivided interest has no duty imposed upon him to pay the tax upon the other undivided interest; but he is bound to pay the tax upon his own, and he can not sustain a purchase based partly on his own default. So in this case: if Waterman had paid the taxes on his own land, his right to bid on the sale of any which adjoined it, could not be disputed; but when he has an interest in the land sold, which made it his duty to pay a part of the taxes, he must perform that duty; or, at least, that he shall gain no rights by neglecting it.
    Suppose A owns a lot lying north of B’s, and the two are assessed and sold together. B bids upon the land against others, and the north fifty acres are struck off to him. If the purchase is valid, the tax on the two parcels are thereby transferred to the fifty acres. Can it be seriously argued that, by thus neglecting his own duty, B can place a party, no more in default than himself, in the position where he must pay the taxes of both, or lose his land P
    2. It was argued in the court below that the stipulation on which the case was’ heard did not show that defendant “ claimed to own ” the one hundred and twenty acres at the time of the purchase in question. It is agreed that Waterman held deeds for those lands which the statute makes evidence of a perfect title, and which, for aught that appears, did give him a perfect title. When a man is shown to have title to land, proof that he claims to own it is of very little importance.
    The sale was void, and the decree of the court below should be affirmed.

      H. K. Olarlce, for defendant.
    The complainant contends that “no man is to take advantage of his owñ wrong.” The alleged wrong is, that because the defendant owned one hundred and twenty acres of the two hundred that were sold, he ought to have paid the taxes on the whole, and so protected the whole two hundred acres from sale. The theory of the complainant seeming to be that because his land and the defendant’s were assessed together, it was wrong in the defendant not to pay the complainant’s taxes, and therefore he can gain no right which flows as a consequence therefrom.
    The mere statement of the case shows how untenable it is. The defendant had no interest in, or duty concerning the complainant’s land at the time of his purchase. The case of Page v. Webster, and Butler v. Porter, cited by the complainant, are both decided on the ground of ownership in the land sold. They were cases of a tenancy in common; and if one tenant paid the tax on the whole land, he could recover from the other his due proportion of the tax. But no such, right exists here. If the defendant had paid the whole tax on the two hundred acres, he could not have recovered of the complainant his proportion for the eighty acres. Their interests were entirely distinct. And if the defendant had paid in full the taxes on the land alleged to be his, it would not have relieved the complainant’s land of a penny of its burden.
    It is, however, an unwarranted assumption of the complainant’s brief that the defendant “claimed to own” the one hundred and twenty acres west of the complainant’s lot. The proof shows no such thing as a claim of ownership. It does show that the defendant had for several years bought portions of the one hundred and twenty acres at prior tax. sales, and had taken deeds therefor. But no claim of ownership is set up, nor does any fact appear which would render the defendant personally liable for, or charge him with the duty of paying the taxes levied on the one hundred and twenty acres.
   Graves J.

This case comes to this court on appeal by the defendant from the decree of the Circuit Court for the county of Barry, in chancery.

It appears that the southeast quarter of section eight, in township two, north of range eight west, was purchased of the United States ¡by.Voltain Spaulding, who conveyed the west half thereof to Yolney Spaulding, July 31st, 1852; that Yolney Spaulding conveyed the same, on March. 15th, 1854, to George E. Pomeroy, by whom it was conveyed to complainant on November 8th, 1861. It also appears that the east half of the southwest quarter and the northwest quarter of the southwest quarter of said section were sold by the United States to William E. Goodwin, in 1839 ; that the southwest quarter of the southwest quarter of said section was sold by the United States to Thomas Barber, in 1853 ; that the whole south half of the section was assessed together as one parcel as non - resident lands, for state, county and township taxes of 1859; and that the west half of the southeast quarter, the east half of the southwest quarter, and the northwest quarter of the southwest quarter were all sold together for non-payment of said taxes for that year: the taxes upon the remainder of said south half of said section having been paid before sale. And it further appears, that on said sale the defendant became the purchaser and received the usual deed from the Auditor General for said lands, when the time for redemption had expired; and that the defendant had for several years held, and has continued to hold, tax titles for the east half of the southwest quarter of said section, and the northwest quarter of the southwest quarter and the east half of the southeast quarter of the same section, with all the rights conferred by such titles.

It will appear from this statement that at the time of the assessment in 1859, of the south half of the section in one body, and which included the lot deeded by Pomeroy to the complainant, and at the time of the tax sale in that year, when the defendant purchased, and thereafter, the defendant was presumptively the owner, and in this case, upon the facts thereof, must be considered as the owner of at least two of the parcels .which were joined with the lot of the complainant in the assessment, and also in the sale to the defendant; and the question is, whether, under the circumstances, the assessment and sale of the lot conveyed to the complainant were invalid.

Upon the argument, this question was divided into the two following:

First: "Whether the assessing officer could legally embrace in one assessment the different parcels assessed as one in this instance; and, second, whether the defendant, by suffering his own land to be sold, and to himself, in union with that of complainant, acquired any right whatever to the land of the latter.

The first question is one of great difficulty, and, as we are able to decide the case upon the second, we forbear to discuss it.

Although the south half of the section was assessed in one body, it yet appears from the case, that upon some portions of it the taxes were paid before the time of sale; and it was entirely practicable for the defendant to have singled out his lots and paid the taxes upon them, if he had been so disposed.

He was not compelled to allow his lots to share the fate of the complainant’s, and can therefore claim no immunity upon the ground that he could only protect his own land by becoming the purchaser of the whole. The sale to the defendant was entire and indivisible, and as such resulted from his failure, from design or otherwise, to pay the taxes on his own land. The very act in which he made default is sought to be turned to his profit at the expense of the complainant. Neither party ought to profit by his default, and the complainant is in no situation to do so. It remains to see that the defendant does not.

The counsel for the defendant endeavored to distinguish this case from Page v. Webster, 8 Mich. 263, and Butler v. Porter, 13 Id. 292. He took the position that these cases were both decided on the ground of ownership by the parties as tenants in common, or the like. It will be seen however, in recurring to the opinion of the majority of the court in the last suit, that such was not the case. At page 302, my brother Christiancy, speaking for the majority of the court uses this language: “But, to say nothing of the tax titles, he (Butler) had a good title to-one undivided third of the lot; and the tax on one third having-been paid by Guild, it is evident his tax purchase of the two-thirds for the taxes of this year, 1852, must have included his oicn one-third, for the non-payment of the tax upon which, he was himself in default to the state. This brings this sale precisely within the letter and spirit of the rule laid down by this court in Page v. Webster, 8 Mich. 263. As owner of the one - third, it was his duty to have paid his portion of the tax before sale. It is insisted, by the counsel for the plaintiff in error (defendant below), that this duty is only imposed by possession. This is not the ground of the decision in Page v. Webster. The duty springs from. ownership. The sale is an entire thing based upon the delinquency in the payment of the taxes for which the sale is made, and the purchaser can not be aTloived to acquire the title of others in the property by a sale based in part, upon his own default. We are entirely satisfied with the principle of that decision, and see no reason for departing from it.”

The principle is here very clearly stated. Tne duty to pay, springs from ownership, and not from the relation subsisting between two or more owners, and it is just as imperative in the case of a single owner as in that of tenants in common; and the default or violation of duty is as palpable in the one instance as in the other.

Whether the estates of the parties are in the same parcel, or in severalty in two adjoining parcels, can make no difference in the principle.

If the two parcels, separately owned by the parties, are so placed as to be involved in the same default and the same sale, as in this instance, the case must be governed by the rule applied under the like circumstances when the estates of the parties are in the same parcel.

The decree of the court below must be affirmed, with costs.

Campbell and Christiancy JJ. concurred.

Cooley Oh J. being a party to the suit, did not sit.


text:
    Thomas B. Kenyon v. John Baker.

      Proof of judgment: Docket eninj. Our practice cloes Jnot require a judgment-record to be made up, in a separate form, but it does not dispense with the pleadings and proceedings necessary to give,''the court jurisdiction over a cause, and over the defendant. The docket entry of a judgment, without proof of such files, entries and proceedings, as could alone justify the court in awarding it, is no evidence whatever of a valid judgment.

      Exemption; Articles used in business. It is not necessary, in order that a person may claim the benefit of exemption for “things to enable him to carry on the profession, trade, occupation or business in which he is wholly or principally engaged,” that such articles should be absolutely necessary for that purpose. It is enough if they are suitable, and actually used therefor.
    Neither is it necessary for him to have one engrossing pursuit, requiring all or most of his time. If he has two separate pursuits, the exempted articles must belong to his principal business. But if they are used in both, they are also exempt. And if his entire business occupies but a portion of his time, it is not thereby removed from legal protection.
    Where a person who had18 been trading for several years, left it off and devoted his time chiefly to attending to the settlement of his business affairs, for which he was obliged to travel about, and used a horse and wagon for that purpose, as well as for the cultivation and improvement of a small amount of land, and had no other occupation, it was held that both of these were legitimate employments within the exemption law.

      Heard January 10.

      Decided January 13.

    Error to Kalamazoo Circuit.
    ‘This was an action of replevin brought against the Sheriff of Kalamazoo county, to recover certain personal property taken on execution, on the ground that the property was exempt.
    Judgment was rendered for defendant.
    The facts are stated in the opinion.

      Henry 0. Briggs, for plaintiff in error.
    1. At common law the judgment-record, duly made up and signed, is the judgment, and is the only competent evidence of judgment.
    Under our practice, the files in a case, and the various entries reeprired by the practice, take the place of that judgment-record. They, taken together, prove a judgment, and nothing less is sufficient. — Green’s Prae. § 526; 1 Mich. 232, 56; 2 Id. 372; 10 Id. 260.
    2. To entitle one to the benefit of the exemption laws, it is not necessary to show that he was engaged in a business demanding the'whole or the greater part of his time. — 8 Mich. 529.
    If a party is engaged in two or more occupations, he is “principally engaged” in that “on which he chiefly relies for a livelihood, and that engrosses most of his time and attention” — more of his time and attention than any other one business.
    The object of exemption laws is liberal, and to secure to the poor man the means of subsistence, and are never construed technically against the rights claimed under them.— 3 Mich. 64-67; 10 Id. 546.

      Stuart, Edwards and May, for defendant in error.
    1. The court properly admitted the record of a judgment of Woodward v. Kenyon. The judgment was complete in itself, needed no explanation, and the law required none.
    The judgment of a court is. its conclusion derived from all the facts submitted to it. Neither in law nor in fact are the pleadings or motions in a cause any part of the judgment. They, like the testimony in the cause, are simply the means- or agents by which the court reaches a final conclusion or judgment.
    2. The charge to the jury “that the plaintiff must show affirmatively that he was engaged in some legitimate business, demanding the whole or the major part of his time and effort ” was correct, taken in. connection with the balance of the charge. —3 Mich. 64. The charge was in almost the precise language of this court in Smally v. Masten, 8 Mich. 529.
    The bill of exceptions contains all the evidence given in the cause as to the business of Kenyon, and clearly shows that the plaintiff in error had no regular business.
   Campbell J.

Plaintiff replevied certain property from defendant, who sought, as Sheriff, to justify under a judgment and execution levied against him. To prove the judgment, defendant introduced only the final entry upon the record, without showing any of the previous files or proceedings on which it should have been based, and the court held this sufficient proof. This was clearly erroneous. No judgment can be lawfully given by any court until a suit has been commenced, and the defendants have been brought in, and a trial or default has been had. Our practice allows all of these steps to be shown without making up any formal judgment record, as required by the old practice. But no judgment can stand until the jurisdiction of the court appears in some way; and no presumption can arise from an entry which has no previous steps to explain or warrant it. The judgment may have been valid, but that fact was not shown. There must, therefore, be a new trial. And, inasmuch as upon such trial, it is probable the defect in proof may be supplied, it becomes necessary to consider the rulings concerning exemption from execution, upon which the verdict below was made to depend.

There was evidence tending to show that the plaintiff, after being several years engaged in mercantile business, had given it up, without entering upon any other engrossing occupation, and was chiefly engaged in settling up his old matters, and doing a small amount of farming and improvement. The horse and wagon taken were used by him in doing his settlement business, which required some traveling about, and also in his home occupations.

The court charged the jury that plaintiff must satisfy them that the property was “essentially requisite to the carrying on the business in which the plaintiff was principally engaged.” That “ the plaintiff must show, affirmatively, that he was engaged in some legitimate business, demanding the whole or the major part of his time and effort, and that in the proseontion of such business the property claimed to be exempt was not only convenient but necessary.” The remainder of the charge on this point was substantially an amplification of this idea. The exemption in the statute is of property “to enable any person to carry on the profession, trade, occupation or business in which he is wholly or principally engaged.”

It is a somewhat too narrow construction of this statute to confine it to articles absolutely necessary to carrying on business. It can rarely happen that ordinary business may not be carried on by various means, while it may be done more thoroughly or conveniently by articles which may nevertheless be dispensed with if not attainable. It was not, we think, the design of the statute to be over nice or technical in this regard. Abuse of the right is checked by limiting the amount in value which may be exempted. But if a person actually uses certain things “to enable” him to carry on his business, and such things are reasonably adapted to aid him in doing so, such adaptation and actual use are sufficient to authorize the articles to be exempt, as enabling him to do business, within the statute. Any further restriction to a narrower and essential necessity, is not within the express terms of the law, and there is no reason for confining them within any stricter bounds.

Neither do we think it a fair application of the law to allow an exemption only when a person has some one engrossing pursuit to which he devotes the great bulk of his time. If a man carries on two entirely separate kinds of business, and the articles which enable him to do one kind are not used or serviceable in the other, the statute is plain enough that a thing claimed to be exempt must relate to his principal business. But if it happened to be material and useful in both, it would be very strange if it could be exempt in neither. That would furnish much stronger grounds for the exemption.

Nor can we think it necessary that the business which a person is engaged in must necessarily be extensive, or occupying most of his time. Whatever may be a person’s avocations, and whether his business be light and allowing intervals, or heavy and unresmitting, the business, such as it is, should be protected under the law. We see no reason to consider the occupation of time in settling old affairs as idleness or inactivity. It is merely doing one of the most important parts of all commercial business, which is usually somewhat engrossing, even when affairs are taking their ordinary course under a credit system. And if a person devotes himself actively to such a closing up of affairs, and is obliged to go about in doing so, we can see no good reason why his vehicle, in actual use for that purpose, may not fairly be regarded as “enabling him to carry on his business ” as long as that necessity continues.1 There was evidence tending to show that the horse and wagon were used for this purpose, and also for such other domestic and agricultural work as plaintiff was engaged in. And we think he had a right to the exemption if the jury believed he was using them in good 'faith in any actual business, if he had no other principal occupation to which they were not subservient.

The judgment must be reversed and a new trial ordered.

The other justices concurred.


author: The court

text:
    Thomas Woodmansie v. Joseph Hollon.

      Practice in Supreme Court: Motion to dismiss writ of error for want of prosecution: Costs. A writ of error will not be dismissed for delay in filing return, if filed before the motion is heard. But where there was ground for the motion when noticed, costs were allowed the moving party, although his motion was defeated.

      Heard and decided April 7th.

    Error to Calhoun Circuit.
    This was a. motion to dismiss for want of prosecution.
    The writ was sued out January 17, 1868, and returnable February 18, following. But the return was not made and filed till February 21.
    Notice of the issuing of said writ was served on defendant below, January 17, as follows:
    “Please take notice that a writ of error, duly issued by the Supreme Court of the State of Michigan, has been served upon the clerk of the Circuit Court for the county of Calhoun, and a bond duly filed with .said clerk, duly executed, etc.”
    It appeared that the defendant’s attorney saw and examined the said writ of error in the office of the clerk of the Circuit Court before the return day of the same, but that the notice required by rule (10) was not served.
    The motion to dismiss was made on the 19th of February, 1868. The return to the writ of error was filed two 'days subsequent.

      D. Darwin Hitglies, for the motion,
    cited Rules 10 and 16.

      Wm. II. Brown, contra,

    cited Babcock v. Twist, 16 Mich. 282, and Rule 20.
   The court

held that inasmuch as he had knowledge of the writ and of its tenor and contents, the defendant in error had all the information that he would have received from a technical notice; and also that the filing of the return before the motion was heard would prevent the dismissal of the writ according to the usual practice.

But, inasmuch as notice of the motion to dismiss was given before the filing of the return, and when there had been a failure to comply with the rules, costs were allowed to the moving party notwithstanding the subsequent filing defeated the motion.