author: Christiancy J.:

text:
    The Minnesota Mining Company v. The National Mining Company.
    The Act of Congress of March 1, 1847, “ to establish a land office in. the northern, part , of Michigan,” &c., (9 Stat. at Large, 146) does not authorize by pre-emption or otherwise, the sale by the United States of any lands which, on survey, might fall within section sixteen.

      A judgment will not be reversed for the .admission of evidence from which no injury could result to the plaintiff in error.

      Heard November 28th and 29th, 1862.

      Decided January 13th.

      Error to the District Court of the Upper Peninsula, for the county of Ontonagon. The case is sufficiently stated in the opinion.

      S. T. Douglass, and T. Romeyn, for plaintiffs in error.

      A. W. Buel, for defendants in error.
   Christiancy J.:

This was an action of ejectment, brought by the plaintiffs below (plaintiffs in error) to recover a portion of section sixteen in township fifty north of range thirty-nine west, in the Lake Superior Land District.

The plaintiffs claim under a patent from the United States, issued April 9th, 1852, purporting to convey the lands in question (together with a large • amount of lands on other sections in the same township, not here in controversy). By the evidence in the case, this patent appears to have been issued upon a pre-emption purchase under the act of March 1st, 1847: — 9 U. S. Stat. at Large, p. 146. The patent recites that full payment has been made according to the provisions of this act, and the act of ■September 26, 1850, reducing the minimum price of the mineral lands. The act last referred to has no bearing upon any question raised in this case. The patent contains an express reservation of “any right which the State of Michigan mpy have in and to” the lands on section sixteen mentioned in the patent, “under or by virtue of the provisions of the first section of the act of Congress of the 23d day of June, 1836, entitled “an'act supplementary to the act entitled an act to establish the northern boundary line of the State of Ohio, and to provide for the admission of the State of Michigan into the Union on certain conditions.”

By this act (which, being accepted by the State, became an irrevocable ordinance, binding as well upon the Federal Government as the State), it is provided, that “section numbered sixteen in every township of the public lands, and when such section has been sold or otherwise disposed of, other lands equivalent thereto and as contiguous as may be, shall be granted to the State for the use of schools.”

The plaintiffs’ counsel insist that, until the sixteenth section has been identified by survey of the public lands, the title of the State can not attach to the specific lands;that the Federal Government have therefore the power to dispose of portions of the public domain, before such suiv veys have been made, and that if it turn out, upon survey, that section sixteen has been thus disposed of, the obligation of the Federal Government to the State is fully performed by giving to the State other lands equivalent thereto: he admits however that if not thus disposed of, the title of the State would attach at once upon the completion and return of the surveys.

Upon this theory, and to show that the United States had made an inchoate disposition of these lands which was' binding upon them, and that the rights of the parties under whom the plaintiffs claim had attached before the survey, and that the lands were thus taken out of the operation of the grant to the State, the plaintiffs, on the trial, proved that the lands were not duly surveyed and the survey returned until the Autumn of the year 1841 That on the 5th day of August, 1844, a written permit was given by the mineral agent of the United States, to Joseph L. Hempstead, under whom plaintiffs’ claim, to dig for ores, &e. That a selection for the purpose of mining being duly made under this permit, of a tract including the land in question, the Secretary of War, on the sixteenth day of September, 1845, gave to said Hempstead a written lease of the land for three years from that day.

It is admitted by the plaintiffs’ counsel that this lease (like all other similar leases of the mineral lands in the Lake Superior Copper Mining District, executed by the Secretary of War), was entirely invalid at the time ■of its execution, being executed without authority of law. But it is insisted that, while the term which it purported to create was still unexpired, this lease (with other similar leases) was ratified and confirmed by the act of Congress •of March 1, 1847, already alluded to. It was shown upon the trial that the lands in question were, in November, 1849, reported by the Geological Surveyor of the United States, to the Secretary of the Interior, as mineral lands. And it is insisted that, by this act of 1847, a right of pre-emption was given to the lessee and his assigns to enter and purchase these lands at any time during the con^ tinuance of the lease, by showing a full compliance with its •conditions and terms. The plaintiffs also sought to show that they had made the necessary application and proof, before the proper officers, to entitle them to the pre-emption under the act; and though made after the expiration of the lease, they have undertaken to show that they did all that it was competent for them to do; that the delay was caused by the Government, and that the lease was extended until the entry was completed.

For the purposes of the present case, it may be admitted that the plaintiffs had fully complied with the terms and conditions of the lease; that their application and proofs were made in due season; full payment made, and every thing done by them to entitle them to a patent under this act, if the act extends to the case, and authorizes a sale by the United States of the lands in question. But after a full and careful examination of this act, in ■connection with that of June 23d, 1836, and of the whole policy of the Government towards the new States from its origin, as evinced by its legislation, we are entirely satisfied that the act of March 1, 1847, does not extend to this case, and was never intended to authorize, by pre■emption or otherwise, the sale by the United States of any lands which might fall within section sixteen. Whether,, therefore, the Federal Government had, or had' not, the-power thus to dispose of these lands before survey, is a question we are not called upon to decide. Keeping in view the act of June 23d, 1836, and the policy of the Government in reference to this question, which has been, steadily adhered to from the first, we should be strongly inclined to construe the act of March 1, 1847, as not intended to include section sixteen, had no express exception of that section been made. But the second section of the act contains an express exception and reservation of section sixteen from the sales authorized by the act: and we think this exception extends as well to the mineral, as to the non-mineral lands of the district; in other words, to all the sales authorized by the act, whether by pre-emption or otherwise. In reference to this point, and all others bearing upon the construction of this act, we fully concur in the opinion expressed by the Supreme Court of the United States in the case of Cooper v. Roberts, 18 How. 173, where the construction of this act was brought under decision with reference to the same land here in controversy* to which opinion we refer for the grounds of the conclusion at which we have arrived. Though the parties in this case are different, yet they respectively represent the same rights; the Minnesota Company in this case representing Roberts in that case, and the National representing Cooper. And though the judgment in that case may not be strictly a bar to this, under our statute: yet the opinion of that Court, to which the ultimate decision of this question would properly belong, would justly be entitled to great weight though we might not be satisfied with the grounds upon which it was based; but their construction of that act is the same which we should have felt bound to adopt without its aid.

This disposes of the whole case, so far as the plaintiffs rely upon a title under the patent from- the United States. With the defendants’ title in an action of ejectment (which constitutes so large a portion of the evidence and of the finding of the Court in the present case), we have nothing to do, except when, and so far as it may tend to defeat that of the .plaintiff. It could have no such tendency here, as the respective titles claimed are derived from separate and independent sources. If the plaintiffs’ title from the United States were good, that set up by the defendants could not affect it: being void, it needed no title in the defendants to defeat it. The defendants’ case would have been equally strong had they shown no conveyance by the State.

The State, however, had . conveyed the whole of this section sixteen to Williams, and Williams and wife had conveyed to the plaintiffs two separate parcels of the land conveyed by the plaintiffs’ patent from the United States, one in the southeast corner of the section, containing twenty-two acres (upon which no question is raised), and the other in the northeast corner, the latter being described in the deed as ninety rods long from north to south, and forty rods wide from east to west, “ reserving, however, on the last described tract, the right to all mines or minerals now discovered, or that may hereafter be 'discovered thereon, and the right of working the same: provided that such mining operations shall not incommode the working of the present steam engine, stamp mill and saw mill of the Minnesota Mining Company on said tract, nor obstruct the stream of water on which said stamp and saw-mill are situated, to the detriment of the Minnesota Mining Company.”

Williams and wife afterwards conveyed the whole section to Cooper (under whom defendants claim) excepting the tract thus previously conveyed to the Minnesota Company, by the same description as contained in the deed to them, and conveying also the reservation of the mines in the lands thus excepted.

It was claimed by the defendants on the trial, that the description of the tracts contained in the deed from Williams and wife to the Minnesota Company (in the northeast corner), and of the exception in the deed from Williams and wife to Cooper, was erroneous — that it was intended to be a tract ninety rods long from ea^t to west (instead of north and south), and forty rods wide from north to south (instead of east and west). And, apparently for the purpose of preventing a recovery by the plaintiffs under their deed "of a portion not intended to be conveyed by it, and which was claimed by defendants — for we can discover no other purpose— the defendants were allowed, under objection from the plaintiffs, to introduce parol evidence to correct the erroneous description, by showing that the objects and improvements referred to in the deed would not be included, if located as described in the deed (making the length of the tract north and south), but would be included and the deed made consistent, by locating the tract with its length east and west, and its width north and south. To this exception was taken by the plaintiffs. But we are not called upon to express an opinion upon the point; as by reference to the declaration it will appear that the plaintiffs except (from the east half of the northeast quarter of the section claimed by them) a tract in the northeast corner of the section forty rods wide from north to south, and eighty rods long from east to west (the remaining ten rods would extend beyond the lot covered by their patent): thus fully recognizing the description as claimed and sought to be proved by the defendants; or, at least, showing that they did not claim to recover any lands covered by that part of the description which was claimed to be erroneous. No such proof on the part of the defendants was therefore necessary, and no such question was involved in the issue. But no injury could result to the plaintiffs from this evidence, and they can not assign it as error.

The judgment of the District Court of the Upper Peninsula for the county of Ontonagon, must be affirmed, with costs.

Martin Ch. J. and Manning J. concurred.

Campbell J. did not sit in this case.


source: Caselaw Access Project

author: Manning J.: Christiancy J.:

license: Public Domain

text:
    Jesse G. Beeson v. Noel B. Hollister and another.
    The proceedings in taking judgment on default and an assessment of damages l>y the clerk, can not be reviewed by the Supreme Court on a case made.
    For the reversal of a judgment thus rendered the following reasons were assigned.:
    1. That the notice of assessment of damages by the clerk did not state the place where it would be made.
    2. That the assessment was not made by the clerk at his office, but in the court room (court being in session) in the absence of defendants’ attorney.
    3. That the case was not a proper one for an assessment by the clerk; the declaration containing counts for goods sold and delivered, and for labor, in addition to the common money counts. [A copy of the note on which the assessment was made was served with the declaration].
    4. Final judgment was entered on the same day the clerk’s report was filed.
    5. The Circuit Court overruled, with costs, a motion to set aside the judgment for these reasons.
    * It seems that none of the reasons assigned are sufficient for reversing tha judgment.

      Heard January 9th.

      Decided January 13th.

    Case made after judgment from Cass Circuit.
    The declaration contained the common counts only; among them one for goods sold and delivered, and one for labor. There was appended to it a notice that a note, a copy of which was subjoined, would he given in evidence on the trial under the money counts. Defendants appeared, in the case by attorney, but did not plead, and their default for want of plea was entered. Afterwards plaintiff’s attorney served upon the attorney for defendant a notice, that on December 10th, 1861, at nine o’clock A. M., an. assessment of damages would be made before the clerk, but the notice did not specify at what place.
    On the day specified, the Circuit Court was in session. At the hour named, defendants’ attorney went to the clerk’s office and remained until half-past ten, neither the clerk nor the plaintiff’s attorney appearing. In the mean time the clerk assessed the damages upon the note in the court room, filed his report, and judgment was taken upon it the same day. The next day objection was taken to this judgment -as prematurely entered, defendants claiming that they were entitled to all the next day to file exceptions to the report in. They also filed exceptions to the report, and an affidavit that $80 not credited on the note had been paid upon it; and on this .they moved the Court to vacate the judgment. The payment was denied by plaintiff’s affidavit, and the motion overruled, with costs.

      J. Hollister, for defendants,
    urged in this Court the following grounds for the reversal of the judgment:
    1. That the notice of assessment of damages did not state the place where it would be made.
    2. That the assessment was not made by the clerk at his office — the place for the transaction of official business by • Mm.
    3. That the case was not one in which an assessment by the clerk was authorized — there being counts in the declaration besides the money counts.
    4. That final judgment was entered on the same day the clerk’s report was filed.
    5. That the Court erred in overruling, with , costs, a motion to set aside the judgment for these reasons.

      C. W. Clisbee, for plaintiff.
   Manning J.:

This is a case made after judgment rendered on an assess’ment of damages by the clerk. The statute provides for making a ease after judgment, where the cause has been tried by the Court without a jury (Comp, haws, §3438), and also where it has been tried with a jury (Comp. Laws, §3421, last part of section). The sole object of the last mentioned statute is to do away with the necessity of a bill of exceptions and writ of error, by permitting the parties to bring before this Court, in a case to be made after trial, all the questions arising thereon that could properly be embodied in a bill of exceptions. As the case made does not come within either of the aforesaid statutory provisions, the cause must be dismissed for want of jurisdiction, with ten dollars costs to the plaintiff.

We further say, for the satisfaction of the parties, that we have looked into the several objections urged on the argument for a reversal of the judgment, without finding any sufficient reason for reversing it if we had the power to do so on the case made.

Martin Ch. J. and Campbell J. concurred.

Christiancy J.:

I concur in dismissing the case for the reason stated in the foregoing opinion.


text:
    The People on the relation of Aldert Plugger and others v. The Township Board of Fillmore.
    ‘Where cause has been shown in opposition to an application for a mandamus, and an argument is not had until a subsequent term, the case must be noticed* and placed upon the docket for argument as a calender cause, and printed briefs furnished.

      Decided April 8th.

    Application for a mandamus. An order to show cause having been made, cause was shown at the last January-term, but argument was not had at that term. The question now arising whether the application was to be heard as a motion, or as a calender cause.

      A. Russell, for the People.
    N. A. Balch, for respondents.
   The Court held that where, after cause shown, the. application stands over to a subsequent term, it must be noticed and placed upon the docket as a calender cause, and printed briefs be furnished as in other cases.


text:
    In the Matter of Dennis Leddy.
    A warrant of commitment charging that L. “ did, on the 20bh day of April instant* enter the possession of C., and wrongfully and feloniously take and drive away from the possession of the said O. forty-five sheep and twenty lambs, of the value of $180,” shows no criminal offense.
    A Justice who commits a person for trial must fix the amount of bail, and if he fail to do so the commitment will be invalid.

      Heard and decided April 23d

      Habeas Corpus. The petitioner was confined in the Wayne County jail under the following commitment:
    “State of Michigan: County of Wayne, ss.: To the sheriff of the county of Wayne, and to any constable of said county, and to the keeper of the jail of said county, greeting:
    “Whereas, John Carr, heretofore made complaint before me, the subscriber, a Justice of the peace of the township of Romulus in said county, against Dennis Leddy, representing that the said John Carr, of the township of Romulus, hath made complaint to me under oath, in behalf of the People of the State of Michigan, that the said Dennis Leddy, of the township of Romulus or Huron, in said county, did, on the 20th day of April instant, enter the possession of the said John Carr, and wrongfully and feloniously take and drive away from'the possession of the said John Carr, forty-four sheep and twenty-three lambs, of the value of one hundred and eighty dollars; whereupon, in pursuance of the statute, I issued my warrant for the ajoprehension of the said Dennis Leddy, and he was apprehended and brought before me at my office in the township of Romulus, on the 21st day of April instant, when and where I proceeded to read the complaint to the said Dennis Leddy, and after reading1 the same to him in his hearing in open court, he, the said Dennis Leddy, plead guilty to the charge . set forth in said complaint, and refused to give bail.
    “You are therefore commanded, in the name of the People of the State of Michigan, to commit the said Dennis Leddy to the jail of the county of Wayne, and the keeper of the said jail is hereby commanded to receive the said Dennis Leddy into your custody in the said jail, to be there detained until he shall be discharged according to law; and for so doing this shall be your warrant.

      “Given under my hand and seal at Romulus, in said county, this 21st day of April, A. D. 1863.
    Robert Fuleord, Justice of the Peace.” •
    C. P. Crosby, for the petitioner.
   The Court held the commitment invalid: First, because it set forth no criminal offense: Second, because the amount of bail was not fixed by the Justice.

Petitioner discharged.


author: Campbell J.:

text:
    John Coatsworth v. Archy Barr and others.
    The statute which provides, that in any “action” brought on negotiable paper given on an usurious consideration, if the plaintiff became a bona fide purchaser of the paper before it became due, then, unless it appear that he had notice of the usury when he bought, he shall be entitled to recover, is to be construed as embracing suits in chancery as well as actions at law.

      Heard January 12th. Bedded April 21th.
    Appeal in Chancery from Ingham Circuit.

      Barnes & Huntington, for complainant,

      Blair & Gibson, for defendant, Archy Barr.
   Campbell J.:

Defendant, Arehy Barr, seeks to avoid a mortgage foreclosure, on the ground of usury in a portion of the negotiable note secured by it. The complainant is shown to be a bona fide purchaser, and we do not think that proof of actual notice of the usury is made out. .

It is claimed, however, by defendant, that it is only in actions at law that such a purchaser is protected. The statute, Comp. L. §1316, uses the term “action” in the section referred to by counsel, and it is claimed to be used in a technical sense. By reference to the previous section, it will be found that no contract is invalidated by usury. The only relief against it is confined to a deduction allowed in an “action” upon the usurious contract. If this term were used technically for an action at law, there could be no deduction in equity whatever. This would nullify the entire object of the statute, which was to allow such deduction in all cases Avhere the original usurious contract was sought to be enforced by any one except a bona fide holder of negotiable paper, Whether enforced at law or in equity. There is no good reason for any distinction, and we do not think such a distinction is consistent with the-general design of the usury law.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    Charles Merrill v. Thomas H. Hartwell.
    The holder of a land warrant has an absolute light to locate land with it, and to a patent for the land located.
    Plaintiff purchased a land warrant of defendant, who guaranteed it “in all respects.” With this warrant plaintiff located land, but ho was afterwards notified from the Land Office, that the entry was suspended because tho Commissioner of Pensions had cancelled the warrant on the allegation that it was issued on forged papers. Plaintiff then brought suit upon the guaranty. It was held) That private lights could not be bound by this ex parte and extra judicial proceeding of the commissioner, and that this evidence did not show-plaintiff entitled to recover.

      Heard April 11th.

      Decided April 21st.

    Case made after judgment from Wayne Circuit, where-Merrill brought action against Hartwell on a guaranty in a hill of sale of land warrants in the following words:- “ Guaranteed in all respects.” Merrill located the warrant in question in 1854, hut had received no patent when, in 1862, he was notified by the Register and Receiver of the-land Office that the warrant was cancelled by the Commissioner of Pensions, and the entry therefore suspended. The cancelment was on the ground that the warrant, which was issued under the act of Congress of September, 1850, was obtained on false and forged papers. Merrill then brought this action. The Circuit Court gave judgment for defendant.

      J. E. Bigelow, for plaintiff.

      D. C. Holbrook, for defendant.
   Campbell J.:

Defendant is sued as guarantor of a land warrant which he sold with a guaranty “in all respects.” Plaintiff located certain lands with it in 1854, and in 1862 he-was notified that the entry was suspended because the-Commissioner of Pensions had cancelled the warrant. Suit, is now brought on the guaranty, claiming this to be a, breach of it.

The law of 1850, under which the warrant was issued,, prescribes in what way an entry of lands may be made on such a warrant, and provides, that “upon the return of su'ch certificate or warrant, with evidence of the location thereof having been legally made, to the General Land Office, a patent shall be issued therefor.” — 9 Stat. U. S. 520, 521. And the warrants are made assignable by the statute of 1852. — 10 Stat. U. S. 3.

Whether such a guaranty contains sufficient elements of certainty to enable its holder to enforce it for any liability except title and genuineness, is a question of some nicety. But it cannot be claimed that such a guaranty can go further than to bind the guarantor to the undertaking that the warrant is as valid as any other land warrant under the statute. The statute gives to the holder of every warrant, free from question, an absolute right to locate land under it; and the land officers who refuse to respect it, are guilty of an infraction of'law. It can hardly be claimed that this guaranty is a guaranty against official mistakes or misconduct.

Whatever may be the power of any of the public officers in the department, to decline acting when they suspect fraud, there is no principle which can justify the assumption that their decision can divest private rights or dispose of them finally by assuming to rescind the instruments under which these are asserted. A court of justice is not bound by such ex parte and extra judicial proceedings, and must entirely disregard them.— Glasgow v. Hortiz, 1 Black, 595; Tate v. Carney, 24 How. 357; Dubuque & Pacific R. R. Co. v. Litchfield, 23 How. 66; Arnold v. Grimes, 2 Clark (Iowa) 1; Irvine v. Marshall, 20 How. 558; O'Brien v. Perry, 1 Black, 132; People v. State Treasurer, 7 Mich. 366. An entry made on this warrant, if the warrant itself is free from objection, gives a right to a patent under the express terms of the law.

It is unnecessary to decide whether the assignee of a land warrant, valid on its face, can be affected by frauds anterior to its issue, or if he can be in what way the validity of the instrument is to be assailed. No such attempt is made in the case before us, as there is no evidence offered tending to show fraud or forgery.

The ‘judgment below must be affirmed, with costs.

The other Justices concurred.


author: Manning J.:

text:
    Daniel Gurney v. The Mayor, Recorder and Aldermen of the City of St. Clair.
    Justices of the Peace have no jurisdiction of actions against municipal corporations.— (Comp. Laws, §3700).
    Tlie provision in fete charter of the city of St. Clair, that that corporation may sue and "be sued in all courts of law and equity, &c,, docs not confer upon justices jurisdiction of actions against that oity.

      'Where, therefore, suit was brought in the Circuit Court against the City of St. Clair, and a recovery had for less than one hundred dollars, it was held the plaintiff was' entitled to costs.

      Submitted on briefs, April 21st.

      Decided April 28th.
    Error to St. Clair Circuit. The case is fully stated in the opinion.

      Crellin & Atkinson, for plaintiff in error :
    Justices have no jurisdiction of actions against municipal corporations.— Comp. L. §3700; Root v. Mayor, &c., 3 Mich. 433. And plaintiff, having recovered in the Circuit Court, is entitled to costs.— Comp. Laws, § 5597.

      T. C. Owen, for defendants in error:
    The charter of St. Clair makes the city capable of ■suing and being sued, in all courts ’of law and equity.— Laws of 1858, p. 50, §2.
   Manning J.:

The only question in this case is one of costs.

The plaintiff in error, having sued the defendants, a municipal corporation, in the Circuit Court for St. Clair county, and recovered a verdict for $93.20 damages, the Court gave judgment for costs in favor of defendants, to be deducted from the plaintiff’s judgment for damages.

Section 5597 of the Compiled Laws provides that, In the following cases, if the plaintiff recover judgment by ■default, upon confession, verdict, demurrer or otherwise, in any action or proceeding at law, he shall recover his costs. The remaining • part of the section is subdivided into seven parts, the fourth subdivision of which is as follows: In all actions for the recovery of any debt or ■damages, or for the recovery of penalties or forfeitures, in cases -.where such actions are not cognizable before a justice of the peace, and in all actions of replevin.

By section 3653 (Comp. L.) it is provided that justices -of the peace shall have original jurisdiction of all civil actions, wherein the debt or damages do not exceed the sum of one hundred dollars. This language is broad enough to embrace corporations. But § 3Y00, a part of the same chapter, provides, that all actions against corporations excejDt municipal corporations shall be cognizable before a justice of the peace, in like manner and with the like restrictions as the same are or may be, by law, before a justice of the peace when brought against an individual. The two sections must be construed together, and when so construed municipal corporations are excepted from the jurisdiction of justices courts, and the plaintiff was consequently entitled to costs under the fourth subdivision of §5591.

The clause iu the act incorporating the City of St. Clair, that the corporation may sue and be sued iu all courts of law and equity, must be understood to mean, iu all courts of law and equity having jurisdiction of the case. It was not intended to enlarge the jurisdiction of our courts, or to permit a bill to be filpd in equity, by or against the city, in a matter clearly cfognizable in a court of law, as would be one of its effects if construed literally.

The judgment for damages iu favor of plaintiff is affirmed; and the judgment for costs, iu favor of defendants, is reversed, with costs in this Court and in the Court below to plaintiff

The other Justices concurred.


text:
    Esbon G. Fuller and others v. George W. Bowker.
    Imprisonment on an execution in replevin does'; not fall within the prohibition of imprisonment for debt in the Constitution— Art. VI. §33 —and statute — Comp. Z. Oh. 166 — of this State.
    But at common law a capias ad satisfaciendum could not issue on a judgment in replevin, and therefore can not he issued on such a judgment rendered by a Circuit Court of this State, there being no statute of the State providing for it, and English statutes being repealed.

      If one is arrested on a void execution, and gives bond for the jail limits, the bond is void, and he can not, in an action for false imprisonment, recover damages for remaining in the county according to the terms of the bond.
    Declaration for false imprisonment with allegation of damage that the plaintiff “was greatly hindered and prevented from performing and transacting his necessary affairs and business,” “ and from, engaging and embarking in business which he might and would otherwise have embarked in.” Plaintiff proved that his business was collecting and securing claims, and was allowed, under objection, to show that his business occasionally called him out of the county, and that he was applied to twice to go out of the county after his arrest and after he had given bond for the jail limits. Held, that the averments in the declaration did not warrant this evidence of special damages.

      Heard April 8th.

      Decided April 28th.
    Error to Branch Circuit.
    The action was brought by Bowker against Sylvester P. May and his attorneys, for false imprisonment in causing Bowker to be arrested on a capias ad satisfaciendum issued upon a judgment rendered in said Circuit Court, in favor of May against Bowker, in an action of replevin.
    The first count of the declaration was in the ordinary ■ form, averring no special damage. The second count was as follows:

      “ And also, for that the said Sylvester P. May, Esbon G. Fuller, and Caleb D. Randall, on the first day of May, one thousand eight hundred and sixty, with force and arms made another assault on the said. George W. Bowker, to wit, at Coldwater in said county of Branch, and then and there beat, bruised and ill-treated him the said plaintiff, and then and there imprisoned him, the said plaintiff, and kept and detained him in prison there without any reasonable or probable cause whatsoever, for a long time, to wit, for the space of sixty days then next following, contrary to the laws of this State and against the will of the said plaintiff. By reason of which said several premises he, the said plaintiff, was greatly hindered and prevented from performing and transacting his nesessary affairs and business, by him during that time to be performed and transacted, and was also prevented and hindered from engaging and embarking in business which the plaintiff might and would otherwise have engaged and embarked in, and which would have brought - great profits to the said plaintiff-; and also thereby he, the said plaintiff, was forced and obliged to and did necessarily pay, lay out and expend a large sum of money, to wit, the sum of two-hundred dollars, in and about endeavoring to become released from such imprisonment, and in and about the support and maintenance of himself and family during such imprisonment, to wit, at Coldwater aforesaid, and all to the great damage of the said plaintiff of two thousand dollars, and therefore he brings suit, &c.”
    Upon the trial, David N. Green was called as a witness, on the part of the plaintiff, and, upon his direct examination, testified in substance as follows:
    “In the year 1859 and 1860 I was acting sheriff of the county of Branch. About the first day of May, 1860, I arrested the plaintiff Bowker on an execution which I have here. Mr. E. G. Fuller (one of the defendants) gave me the execution. He told me he wanted I should collect it, and, if Bowker couldn’t pay it, put him in jail. He (Fuller) said he thought Bowker would pay it if he found I was going to arrest him. I did arrest him. I can’t say-how long I had him in custody; it was until' he was discharged by the Court.”
    On his cross-examination he said:
    “The directions given me by Mr. Fuller about serving-the writ were given by way of explanation of the writ, telling me what the writ required me to do. I wanted explanation in regard to it. He said I could let it run, but it would be at my own risk if I did. I djd not put Bowker in jail. After I arrested him he went away to-see his counsel. I arrested him by telling him I had a writ for him, and he might consider himself arrested, and showed him the writ.
    “ On reflection, I don’t know certainly that I showed him the writ. I didn’t shut him up after that at any time. He went where he pleased, except there was an understanding between him and me that he shouldn’t go out of the county. So far as regarded any forcible or actual restraint, he went where he pleased. I never took Mm to the jail. I have stated, as far as I now recollect, all that I did by way of arresting, him.”
    On his direct examination resumed, he further testified as follows:
    “It was in Cold water, at John Root’s office, that I saw Bowker, and I think we went down stairs together before I told him what I wanted; at least we went away from where other persons were. The reason I didn’t commit him to jail was, that after he had been to see counsel he gave me a bond. After he executed that, I suffered Mm to go at large. I don’t know when, in reference to the time of arrest, the bond was given.”
    The capias ad satisfaciendum was then given in evidence, and the bond offered. It was an ordinary bond for the jail limits, reciting the arrest on the said capias. The defendants objected to its reception, but the objection was overruled, and exception taken. The plaintiff also proved,' under objection, an order made by the Circuit Court setting aside the capias as irregular and void.
    Alvin T. Lamphere was then called and sworn as a witness on the part of the plaintiff, and testified that the plaintiff’s business, prior to May 1st, - 1860, had [been that of constable and collecting and securing claims.
    The plaintiff’s counsel then asked the witness whether the business in which the plaintiff was engaged involved the necessity of his going outside of the county; which question was objected to by the defendants’ counsel, but the objection was overruled by the Court, and exception taken.
    The witness answered: “I know that it did, at times? call him out of the county.”
    The plaintiff’s counsel then asked the witness to state whether the plaintiff was applied to to go out of the county and do business after his arrest by the sheriff; which question was objected to by defendant’s counsel, and such objection was overruled by the Court; and the witness answered: “I know he was applied to twice after his arrest to go out of the county.”
    The evidence being closed, the counsel for defendants requested the Court to instruct the jury, among other things, as follows:
    “That in actions of replevin, a writ of execution, commonly called a ca. sa., may lawfully issue, and that therefore, in this case, the execution proved to have been issued upon the judgment recovered in the replevin suit by Sylvester P. May against George W. Bowker, was properly and lawfully issued.
    “That if the jury are satisfied from the evidence that, at the time the bond for the jail limits was given by Bowker, he was not actually in custody, but had been permitted by the sheriff to go at large, and was at large, the bond had no legal force, and the plaintiff was under no obligation to remain within the jail limits.
    “That if the sheriff, after having arrested the defendant in the execution, permitted him to go at large, it was a voluntary escape, and the sheriff had no power afterwards to control him, or require him to give a bond; hence he can recover for the technical arrest only.”
    These requests were denied, and the jury were instructed: That the execution which the plaintiff claimed, and which the defendants admitted, was issued on the judgment in favor of Sylvester P. May against George W. Bowker, the plaintiff in this action, could not be issued on such a judgment, although such judgment is valid. That it is prohibited by the Constitution and laws of this State.
    That the validity of the bond which was given by said Bowker to the sheriff, was not a question for the jury. Nor was it a question for the jury whether Bowker was under obligation to remain within the jail limits or not.
    The jury under this charge returned a verdict for the plaintiff of seventy-five dollars.
    Among the errors assigned in this Court, were first, the reception of the bond in evidence; third, admitting Lamphere’s evidence that Bowker’s business did. at times call him out of the county; fourth, admitting the evidence of the same witness that Bowker was applied to twice after his arrest to go out of the county and do business; fifth, holding the ca. sa. to be void; sixth, refusing to instruct the jury that if they were satisfied from the evidence, that at the time the bond for the jail limits was given, by Bowker, he was not actually in custody, but had been permitted by the sheriff to go at large, the bond had no legal force, and the plaintiff was under no obligation to remain within the jail limits; seventh, instructing them that the validity of the bond which was given by said Bowker to the sheriff was not a question for the jury; nor was it a question for the jury whether Bowker was under obligation to remain within the jail limits or not.

      E. G. Fuller, in person, and T. M. Cooley, for plaintiffs in error.

      Upson & Thompson, for defendant in error.
   Christiancy J.:

Can a capias ad satisfaciendum be issued on a judgment for damages and costs recovered by the plaintiff in an action of replevin in the Circuit Court? This, though not the first question presented by the record, is the first in logical order, and if decided in the affirmative, determines the cause in favor of the plaintiff in error.

It is very clear that imprisonment on an execution in such a case does not fall within the prohibition either of the Constitution, Art. VI, § 33, or of the non-imprisonment act of 1839, 2 Comp. L. Ch. 166.

Our statutes nowhere specify or enumerate the particular cases in which an execution may issue against the body; but it is provided generally, Comp. L. §4444, that an execution may issue against the body “in cases authorized by law.” The law by authority of which this may be done, must either be an existing statute or the common law. * We have no statute now in force which authorizes such an execution in an action of replevin. But on the contrary, the only provisions of our statute on the subject seem to refer to cases where the action may be commenced by a capias ad respondendum, and the defendant held to bail.

At the time of the passage of the non - imprisonment act, in 1839, the act of April 12, 1827 (Laws of 1827, pp. 239 and 240, Revision of 1833, p. 423) was in force, by the fourteenth section of which suoh an execution might probably have been issued in replevin; and this act seems to have continued in force, and such an execution might doubtless have been issued (notwithstanding the non-imprisonment act) until the Revision of 1838, which repealed the act of 1827. The provisions of this act have never been restored, nor have we been able to find any subsequent provision of statute which would authorize such an execution in the action of replevin, unless in fact such'an execution was authorized in this action at common law, when it would fall within the provision of § 4444 of the Compiled Laws above cited.

Was this species of execution, then, authorized in this action at common law ? We understand the common law rule to have been that a capias ad satisfaciendum could be issued in those cases, and those only, in which the suit might have been commenced by capias ad respondendum, or, in other words, when the latter was the immediate process upon the original writ. The only exception to this seems to have been when the defendant was an attorney or officer of the court; in such case he might be taken in execution, though, sued by bill: — 2 Arch. Pr. 276. Originally the capias ad satisfaciendum lay at common law only in trespass vi et armis. But as statutes were subsequently passed, giving the capias ad respondendum as the mesne process in other cases, the capias ad satisfaciendum was held to follow, as a common law incident. But in no case was the latter allowed without the former unless directly authorized by statute: — 1 Sellor's Pr. 513; Comyn’s Dig. Execution, C. 9; Tomlin's Law Dict. title Capias," 1 Arch. Pr. 276.

By our statute there is no ease in which the arrest of the defendant is allowed on mesne process (or the original Writ) in an action of replevin; and hence by the common law rule, no execution can be issued in the action against the body of the defendant.

By the New York Rev. Stat. (vol. 2 pp. 523, 524), the original writ of replevin might in certain cases contain a capias clause: and it was in that class of cases only that imprisonment seems to have been allowed upon the execution:— See Roberts v. Randel, 3 Sandf. S. C. 707.

English statutes before or since the Revolution, by which the capias ad satisfaciendum may have been extended to replevin, do not affect the question here, as all English statutes were expressly repealed here by the territorial statute of September 16, 1810: — Cass Code 119; Laws of 1820, p. 460; Laws of 1833, p. 563. We think therefore, there was no authority of law for issuing the writ in question, that it was not merely irregular and -voidable, but absolutely void upon its face.

The writ being void, the bail bond was also necessarily void, and could impose no obligation to remain within the county; and, as the obligor must be presumed to have known the law, if he chose to remain in the county, it must be regarded as his own 'voluntary act for which ke can claim no damages: — Allen v. Shed, 10 Cush. 375.

The Court therefore erred in allowing the bond to be introduced in evidence, and in admitting the testimony o± Lamphere, to show that the nature of Bowker’s business required him to go out of the county, and that he had been applied to to go out of the county on such business, even though the declaration might have sufficiently alleged those, special damages, which we think it did not. The first, third, fourth and seventh’ grounds ■ of error are therefore well assigned.

¥e think also the Court erred in refusing to charge as requested by defendants, that, “if the jury should find from the evidence, that at the time the bond for. the jail limits was given by Bowker, he was not actually in custody, but had been permitted by the sheriff to go at large, the bond had no legal force, and the plaintiff was under no obligation to remain within the jail limits.” These errors doubtless led the jury to give the verdict of seventy-five dollars damages; as it is difficult to see how, upon any other grounds, they could justly have given more than merely nominal damages.

A constructive, or technical arrest seems to have been impliedly admitted in the Court below in the argument and the requests to charge. But, had the point been directly raised, by a proper request to charge, we are by no means satisfied that any arrest whatever could have been properly found from the evidence; for though the officer in his direct examination calls it an arrest, when he comes to explain, on his cross-examination, what he means by an arrest, and states all that was actually done, it appears that he merely told Bowker he had the writ, and that he might consider himself arrested ; he went- wherever he pleased, except that there was an understanding that he should not go out of the county; no restraint was exercised, or attempted or offered to be exercised over him. Had the officer, in addition to what he had said to Bowker, requested him to go with him either to prison or to give bail, or anywhere else in obedience to the, writ, and he had submitted and gone with the officer, this might doubtless have been held a legal arrest; but it seems to be well settled that mere words will not, per se, constitute an arrest (unless perhaps where the officer is iu the room with the person to be arrested, and the words indicate an intention not to allow the p^rty to leave at his pleasure, when the officer may be said ‘to have him in his power) : — George v. Radford, 3 C. & P. 464; Russen v. Lucas, 1 C. & P. 153; Chinn v. Morris, 2 C. & P. 361; Pocock v. Moore, 1 Ry. & M. 321; and see Gold v. Bissell, 1 Wend. 210. But in Arrowsmith v. Le Mesurier, 2 N. R. (4 B. & P.) 211, the voluntarily going with the officer to the magistrate, without any declaration of the officer that he arrested him, was held insufficient to maintain an action of trespass and false imprisonment; and the voluntary giving of bail can not make an arrest nor constitute an imprisonment where there has been no arrest in fact (though the party arrested might be estopped by the bond to deny the arrest): —■ Bieten v. Burridge, 3 Camp. 139; 1 Salk. 79.

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

Manning and Campbell JJ. concurred.

Martin Ch. J. did not sit in this case.


text:
    Richard A. Facey, who was impleaded with others, v. Daniel C. Otis and another.
    Where the testimony of a foreign witness has been taken by commission, and the commission has been returned to and filed by the clerk, an objection that no instructions for the return of the commission were sent with it is an objection of form, and is waived under Circuit Court rule 51, when not filed in writing and served within ten days after notice of the filing of the com - mission.

      "Where there was a want of certainty in a written, instrument, and it was not clear from its terms whether tlae undertaking of defendants oontained in it was to the plaintiffs or to third persons named, parol evidence of the circumstances attending the making of it was held admissible, not to contradict the written instrument, hut! to aid the court in giving a true construction to it.

      Heard April 15th.

      Decided April 28th.

    Error to Calhoun Circuit, where Otis & Ditmars brought action against the plaintiff in error and others, as members of the firm of Fulsom & Benedict, upon a written instrument which is set forth in the opinion; and recovered judgment. The errors alleged in this Court were the admission in evidence of the depositions of Thomas & Boun, taken on commission, and the reception of parol evidence to show that the contract of defendants by the written instrument was with plaintiffs, and not with Seymour & Sleight, who are mentioned in it.

      Hughes & Woolley, for plaintiffs in error:
    The deposition taken under the commission should have been excluded, as there was no provision for its return to the Court. This is an.objection to the substance and not the form of the deposition.
    Parol evidence to show that Seymour & Sleight were agents of plaintiffs, in making the agreement, was erroneously admitted in evidence. — Stackpole v. Arnold, 11 Mass. 27; Newcomb v. Clark, 1 Denio 226; Fenly v. Stewart, 5 Sandf. 201; Finney v. Bedford Com. Ins. Co. 8 Met. 348; Finney v. Warren Ins. Co. 1 Met. 16; Turner v. Burrows, 5 Wend. 541; 1 Pars. on Cont. 48 (a), and cases cited.

    Seymour & Sleight could, beyond question, maintain this action in their names; and if the plaintiffs can also do so, then a recovery may be had twice for the same cause of action.' — Hale v. Boardman, 27 Barb. 82; Barker v. Bucklin, 2 Denio, 45; Farley v. Cleveland, 4 Cow. 432; 4 Denio, 97.

      There are cases holding that a unnamed principal may come in and take the benefit of a written contract with an agent who acted in his own name.— Vide 1 Pars. Cont. 49 (a), and cases cited.

    Whatever weight may be given to these cases, they have no application to this case. The contract in question was not made by an agent, but was made by one of the plaintiffs himself.

      Brown & Greenough and C. I. Walker, for defendants in error:
    1. Notice of filing the depositions having been given', and no objections .having been made, all objections of form were waived.— Circuit Court Rule 51.
    2. If an agent make a written contract, in his own name for the benefit and by the authority of Ms principal, can the principal sue or be sued thereon?
    In cases of parol contracts, there is no question but that the principal may thus sue or be sued.— Story on Agency, § 446; 2 Smith Lead. Cas. 212, 233, 227; 1 Am. Lead. Cas. 643; Thompson v. Davenport, 9 B. & C. 78; Beebee v. Robert, 12 Wend. 416; Taintor v. Prendergast, 3 Hill, 72.
    The same rule is now firmly established in England, in relation to written contracts;— Story on Agency, 160, a, to 162, 270, n, 420, n; 2 Smith Lead. Cas. 223 to 225; Bateman v. Phillips, 15 East, 272; Skinner v. Stocks, 4 B. & Ald. 437; Garrett v. Handley, 4 B. & C. 664; Cothay v. Fennell, 10 B. & C. 672; Sims v. Bond, 5 B. & Ad. 389; Jones v. Littledale, 6 A. & E. 486; Trueman v. Loder, 11 A. & E. 589; Higgins v. Senior, 8 M. & W. 834; Beckham v. Drake, 9 M. & W. 79; 11 M. & W. 313; Humble v. Hunter, 12 Q. B. 310; Small v. Atwood, 1 Younge, 407.
    This rule does not, under these decisions, extend to contracts under seal, nor to negotiable paper.

      In this country, the decisions are not so uniform, and s.ome of them deny the application of the rule to written contracts. But most of this class of cases have reference to negotiable paper, and to that extent are not inconsistent with the English rule.
    We submit that the weight of American authority is in-accordance with the English rule. — Hubbert v. Borden, 6 Whar. 79; Com. Bank v. French, 21 Pick. 490; Huntington v. Knox, 7 Cush. 371; Eastern R. R. Co. v. Benedict, 5 Gray, 562; Bank of U. S. v. Lyman, 20 Vt. 673; Monro v. Pt. Henry Iron Co. 12 Barb. 53; Dupot v. Mt. Pleasant F. Co. 9 Rich. 258; Wilson v. Bailey, 1 Handy, 177; N J. S. Nav. Co. v. Mer. Bank, 6 How. 381; Ford v. Williams, 21 How. 287.
    We submit, therefore, that the decision of the Court below was right, both according to the English and American authorities.
    But we say that, in this case, parol testimony was unquestionably admissible, under all the authorities, for the reason that the contract itself indicates the agency. And in such case, or where the contract is ambiguous, parol testimony is clearly admissible to show the relation of the parties.— 1 Am. Lead. Cas. 632-3; Edw. on Notes, 83-4; Mech. Bank. v. Bank of Columbia, 5 Wheat. 326; Merchants' Bank v. Central Bank, 1 Kelly, 418; Rutland R. R. Co. v. Cole, 24 Vt. 33.

   Manning J.:

The 51st of the Circuit Court' Rules provides, that the party taking any deposition shall, upon the same being received and filed ,by the clerk, give notice thereof to the opposite party, and that all objections of form to any such deposition shall be waived, unless the same shall be filed in writing and served upon the opposite party, within ten days after such notice. No instructions were sent with the commission for returning it after it had been executed. It was returned by the commissioner to the clerk of the Court by mail, and notice of the return was given to defendant’s attorney, who filed no objections; but objected to the reading of the depositions at the trial. The return of the commission and depositions, by mail, without instructions for that purpose, was at most only an irregularity, in no way affecting the execution of the commission, and covered by the 51st rule of the Court.

The next objection is one of more importance. It is as to the admission, of evidence on the trial.

The action is on that part of the following instrument,, by which defendants agreed to let Messrs. Seymour & Sleight have nine hundred and seventy dollars worth of goods:

“We agree to secure Otis & Ditmars with a mortgage on two lots in Marshall, for two notes, four and eight, months, each of five hundred dollars, payable at Charles T„ Gorham’s Banking office, in Marshall, Mich. Notes dated May 27, 1858, one eight months, and one four months. We also agree to let Messrs. Seymour & Sleight draw nine hundred and seventy dollars worth of goods out of the stock at Kalamazoo, as they may need, to pay their customers for potatoes, lumber and grain, that they are furnishing with goods.
“Folsom & Benedict.”
“May 31, 1858.”

This instrument was offered in evidence, with a proposition to prove by Seymour, that he and Sleight were agents of the plaintiffs at the time it was made, and that it was made with them as agents of the plaintiffs. The evidence was objected to, for the reason that the instrument on its face showed, that that part of it which the plaintiffs were seeking to recover upon, was an agreement between defendants and Seymour & Sleight, and not an agreement between defendants and plaintiffs; and that it was not competent for plaintiffs to show the latter, by proving the agency of Seymour & Sleight. And, the question before us is, whether the Court erred in admitting the evidence.

Where an instrument is free of all ambiguity, and there is nothing on its face indicating an agency, and the proof of it would change the parties to the instrument, that is, would make what on its face is an agreement between A. & B. an agreement between A. & 0., the admission or rejection of evidence of-agency is a question by no means free of doubt. There are authorities both ways; and we do not feel called upon to decide it in the present suit, as the view we have taken of the case disposes of it on another ground.

There is a want of certainty in the instrument. It is not clear from the instrument itself, whether it is one entire agreement, or two; whether it is an agreement between the parties to the present suit throughout, or only so far as it relates to the mortgage security mentioned in it, and a separate agreement between the defendants and Seymour <& Sleight as to the goods. It does not state in terms with whom it is made. It is matter of inference only from what the defendants agree to do. They agree to give a mortgage to Otis & Ditmars, and let Seymour & Sleight have goods to a certain amount. It may be inferred that as to the mortgage it is an agreement with Otis & Ditmars, and, as to the goods, an agreement with Seymour & Sleight. It may also be construed to be one entire agreement with Otis & Ditmars, whose names first occur in it. The word also, — we also agree — in the beginning of the last clause of the instrument, would seem to connect it with the preceding clause. If this last clause was intended to be a separate agreement with Seymour & Sleight, why is the word also used, and why are two contracts, having no connection with each other, with different persons, united in one and the same instrument? Parol evidence of the circumstances attending the making of it we think was admissible; not to contradict the written instrument, but to aid the Court in giving a true construction to it. Seymour stated that he and Sleight were agents of the plaintiff when the contract was made; that their agency was known to defendants, and that the instrument was drawn up by Ditmars, signed by one of defendants, and then delivered to Ditmars. The light his evidence shed on the instrument removes all doubt as to its true character.

The judgment is affirmed, with costs.

Martin Ch. J. and Campbell J. concurred. Christiancy J. did not sit in this case.


text:
    James H. Brown v. Isaac D. Hazen.
    Defendant promised a debtor of plaintiff to pay the debt on condition that the debtor would deliver defendant a certain cow. The promise was communicated to plaintiff, but without stating the condition. The cow was not delivered, but it was held that the failure to perform the condition would not discharge the promise to the plaintiff.
    iBut the plaintiff not having discharged the debtor, and the promise not being upon any consideration moving from the plaintiff, and not in writing, is void by the Statute of Frauds.

      Submitted on briefs, April 17th.

      Decided April 28th.

    Case made after judgment from Kent Circuit.

      H. B. Brown, for plaintiff.

      Withey & Gray, and A. Russell, for defendant.
   Christiancy J.:

This is a case made after judgment, for a review upon the facts and the law. Brown sued Hazen in assumpsit, upon a promise to pay a note of one Van DerMade. The Court made’ a written finding of facts, and gave judgment for the defendant.

One William Van DerMade was a tenant of defendant, Hazen, working a farm on shares. He had borrowed twenty-three dollars of plaintiff Brown, July 1, 1859, for which Brown took his note payable in sixty days, with a chattel mortgage upon his share of the crops and a cow, to secure the same. In September afterwards — but whether before or after the maturity of the note does not appear— the defendant Hazen wishing to get possession of the farm, a verbal agreement was made between him and Van DerMade, by which the latter was to relinquish or give up to the former his share of the crops, to surrender his-, lease and quit the farm; in consideration of which Hazen, among other things, agreed to pay Brown, on Van Der Made’s note and mortgage, six dollars. Van DerMade, in pursuance of this agreement, commenced removing from the farm, when Brown came along, and being informed of' the intended removal, told Van DerMade he must not leave the farm till his note and mortgage were paid. Van DerMade then commenced putting his things back in the-house (and Brown went away), when Hazen came and inquired of Van DerMade what he was doing. Van DerMade told him what Brown had said; and thereupon another or additional arrangement was made between Van DerMade and Hazen. Thus far there is no conflict of testimony; but upon the point what the second arrangement was, there is some conflict. After a careful examination of the evidence, however, we agree with the Court below, that, by the second agreement, Van DerMade, in addition to what he had by the first arrangement agreed to do, now further agreed to let Hazen have the cow upon which Brown held the mortgage, and- Hazen agreed that, upon the delivery of the cow, he would pay Brown the balance of the note and mortgage. Both these arrangements seem to have been made the same day, and in the absence of Brown. Immediately after the second arrangement, while Van DerMade was driving out to the road with one load of his things, Brown returned, and both Van DerMade and Hazen told him that Hazen would pay Brown the note; Hazen saying he was then short of money, but would pay it in a few days; to which Brown assented, saying he was good for it; and Van DerMade then left the place. Brown does not appear to have had any information of the nature .of the arrangement between Van DerMade and Hazen, except that Hazen was to pay the note; nor was he informed that it was subject to the condition of the delivery of the cow to Hazen. The Circuit Judge found, as a fact, that this condition had not been performed, and upon this ground held the plaintiff was not entitled to recover. We agree with the Circuit Judge as to the fact. But as Brown had never been informed of such condition in the agreement, while the promise of Hazen to Brown was positive and unconditional, had the promise been a valid one upon which an action could have been maintained at all, the non-performance of the condition, we think, would have been no defense.

But there was no consideration for this promise moving from Brown; he paid nothing, relinquished no right; he merely assented to forego his opposition to Van Der Made’s leaving Hazen’s farm, which he had no shadow of right to prevent. He neither gave up the note or mortgage, nor discharged Van DerMade’s liability as the debtor, nor his lien upon the cow under the mortgage. [He still held the juote and mortgage, and there is some evidence showing that he still claimed his lien upon the cow. Had these papers been given up, or the liability of Van DerMade extinguished at the time of Hazen’s promise to pay the amount, and as a part of the same arrangement between all three of the parties, there would then have been a substitution of Hazen as the debtor in place of Van DerMade; and this would have constituted an original or substantive contract between Hazen and Brown, on which the latter might have maintained an action. But as the paper was not given up, nor the liability of Van DerMade extinguished, and he still continued the debtor, and his property still subject to the mortgage,, the promise of Brown was clearly collateral only — a. promise “to answer for the debt or default” of Yan Der Made, and as such clearly within the prohibition of the Statute of Frauds, unless in writing.

Upon this ground, therefore, we concur in the result, with the Court below.

The judgment must be affirmed, with costs.

The other Justices concurred.


author:
Manning J.:
      Christiancy J.: Campbell J.:

text:
    The People on relation of Aldert Plugger and others v. The Township Board of Overyssel.
    The law will not permit an agent to act for himself and his principal in the-same transaction: as to buy of himself as agent the property of his principal; and the like. Per Manning J.
    Public officers are agents within this rule. Per Manning J.
    Where persons were authorized to act on behalf of certain townships in letting a contract for the improvement of a harbor, with power in regard to the plan, of the work, the materials to be used, the time and mode of completion security for performance, &c., and a portion of their number, though less than a majority, united with others in taking the contract, the contract was held void.

      Heard April 8th and 9th.

      Decided April 28th.

    Motion for a mandamus.
    The relators, Alder-t Plugger, W. J. Mulder, M. D. Howard, Homer Schaddelee, Jan Trimpe, W. K. Fliestra, H. D. Post, P. F. Pfaustiebl, Charles J. Pfaff and John Roost,, set forth in their application:
    That in pursuance of “An act to authorize the township of Holland and other townships in the counties of Ottawa and Allegan, to make loans and levy taxes for the improvement of the harbor at the mouth, of North Black River in Ottawa County,” approved February 8, 1858, the-townships of Holland, Zealand, Overyssel and Fillmore,. voted respectively for a loan to be expended in improving the entrance from Lake Michigan to Black Lake Harbor, in, the Township of Holland, that is to say: The township of Holland for a loan of twelve thousand dollars, the town ship of Zealand for a loan of three thousand dollars, the township of Overyssel for a loan of two thousand dollars, and the township of Fillmore for a loan of two thousand dollars.
    That subsequent to such votes, the township board of each of the said townships appointed, from year to year, seven freeholders, pursuant to section four of the said act, to act in behalf of such township, and the said seven freeholders appointed for the township of Holland, entered into a contract with one Zindweg, for piers, to improve the entrance to the harbor of said North Black Lake, at a cost of $5000, and the same were constructed and accepted, and the price paid by said township of Holland, out of said sum of $12,000 so voted by it.
    That afterwards, on December 23, 1858, the freeholders so appointed by the several townships, and constituting the “Harbor Committee,” so called, met to receive proposals for the building of two piers at the mouth of North Black River, in pursuance of public notice previously given by them, and then and there accepted the bid of the relators, which was the lowest bid therefor, at the sum of $14,OOo, and a contract was accordingly made by said committee with the relators, for the construction of such piers by the first day of September, 1860, under the direction of overseers to be appointed by the boards of freeholders of the several towns, and in -accordance with plans and specifications made a part of the contract, at the price of $14,000, being the whole total voted by said townships, after deducting the $5,000 so expended by the township of Holland.
    That the work, under said contract, was performed and completed by the relators in the fall of 1861, to which time the contract had been extended;- but, that the said boards of freeholders of Zealand, Overyssel and Fillmore, could not be induced to meet with the board of freeholders of Holland, to determine upon the acceptance of the same, and the said board of freeholders of Holland, on January 13, 1862, approved and accepted the work as completed under the contract, and certain modifications of the same which had been agreed upon.
    That the township of Holland has paid seven thousand dollars upon said contract, and the township of Zealand eighteen hundred dollars, but that the townships of Overyssel and Fillmore have paid nothing, and the respective township boards now refuse to pay, or to issue bonds for the amount so voted by them respectively; and the township board of Zealand refuse to pay or issue bonds for the balance of $1,200, so voted by that township.
    The relators then set forth a demand upon the township boards of the respective delinquent towns, for the issue to them of bonds for the respective sums so voted, and the refusal of the boards to issue the bonds in compliance with the demand. And they now move for a mandamus directed to the township board of Overyssel, to compel the issue of bonds for $2,000 by them.
    The township board showed cause, alleging the original invalidity of the contract, for want of power in the Harbor Committee to contract under said act, and because four of the said board of freeholders of the township of Holland, at the time the contract was entered into, were among the contractors for doing the work. They aver, upon belief, that the work was never fully executed, and say that if ever accepted, it was by the contractors themselves. Other matters of defense, not necessary to be here mentioned, were also insisted upon.

      Balch & DeYoe, for respondents,
    insisted that the relators had a complete remedy at law, and that the Court could not interfere by mandamus.— 1 N. Y. 563; 18 Pet. 291; 1 Kern. 563; 5 Hill, 616; 2 Barb. 417; 4 Met. 73;
      People v. Judges of Branch Circuit, 1 Doug. Mich. 319. And that the contract was invalid for the reasons stated.

      A. Russell, for relators,
    argued that there was nothing in the law disqualifying members of the committee from becoming contractors; that the township of Overyssel being fully represented in the Harbor Committee when the contract was let, was estopped from asserting its invalidity because of members of the committee being’ among the contractors: that it was not competent to sue the townships and collect by execution, as they were only authorized by the act to pay in bonds, and that in respect to the work, the four towns were to be regarded substantially as partners, so that it was competent for one town to adjust and liquidate the ^account of the relators, who were creditors of the partnership, by accepting the work at the contract price, as Holland did.
   Manning J.:

Four of the relators, who took the contract to build the piers, were members of the board of freeholders organized under the act for the purposes therein mentioned, and that let the contract on behalf of the public. So careful is the law in guarding against the abuse of fiduciary relations, that it will not permit an agent to act for himself and his principal in the same transaction, as to buy of himself, as agent, the property of his principal, or the like. All such transactions are void, as it respects his principal, unless ratified by him with a full knowledge of all the circumstances. To repudiate them he need not show himself damnified. Whether he has been or not is immaterial. Actual injury is not the principle the law proceeds on in holding such transactions void. Fidelity in the agent is what is aimed at, and as a means of securing it, the law will not permit the agent to place himself in a situation in which he may be tempted by his own private interest to disregard that of his principal. Hence, the law will not permit an administrator to purchase at a public sale by himself, property of the estate on which he has administered; or a guardian the property of his ward, when sold by himself. All public officers are agents, and their official powers are fiduciary. They are trusted with public functions for the good of the public; to protect, advance and promote its interests, and not their own. And, a greater necessity exists than in private life for removing from them every inducement to “abuse the trust reposed in them, as the temptations to which they are sometimes exposed are stronger, and the risk of detection and exposure is less. A judge cannot hear and decide his own case, or one in which he is personally interested. He may decide it conscientiously and in accordance with law. But that is not enough. The law will not permit him to reap a personal advantage from an official act performed in favor of himself. For these reasons, we hold the contract we are asked to enforce by mandamus, void as against public policy. — See Clute v. Barron, 2 Mich. 192; Dwight v. Blackmar, 2 Mich. 330; Ingerson v. Starkweather, Walk. Ch. 346; Beaubien v. Poupard, Har. Ch. 206; Walton v. Torrey, Har. Ch. 259; Perkins v. Thompson, 3 N. H. 144; Obert v. Hammel, 3 Harrison (N. J.) 74 ; Lazarus v. Bryson, 3 Bin. 54.

We think it no exception to the rule we have stated, that all the contractors were not members of the board of freeholders, or that those who were members were a minority of the board. The rule would not amount to much if it could be evaded in any such way. It might almost as well not exist, as to exist with such an exception. The public would reap little or no benefit from it.

Being against the relators on this part of the case, I think it unnecessary to notice the other points made on the argument.

The mandamus, I think, should be denied, with costs.

Christiancy J.:

I concur with my brother Manning in holding the contract void, for the reason that it was taken by a part of the same public officers or agents who had been appointed under the law to let it, and who, as such officers, participated in letting the same contract which they assumed to take in their individual capacity.

As public officers, it was their duty in making the contract to act solely for the public interest, without reference to their own; not only as to the price to be given for the work, but in adopting the plan and specifications, and in the mode and time of performance: as individuals, in taking the contract, they must naturally (and while human nature' remains unchanged, we may almost say, necessarily) seek to adopt the plan, and to make' the terms most conducive to their own interests. The public were entitled to their best judgment, unbiased by their private interests, and by accepting the office they became bound to exércise such judgment, and to use their best exertions for the public good, regardless of them own. They had no right, while they continued in office, to place themselves in a position where their own interests would be hostile to those of the public.

The fact that those contractors did not constitute a majority of the joint boards of the several townships (though they were a majority of that of their own township), I do not regard as in any respect altering the principle; nor the fact that the contract was let.to the lowest bidder. The price alone is but one element embraced in the question, and even this might be affected by their influence, by fixing the time and place of the letting, by their right to decide upon the responsibility of the bidders, and by many other circumstances, over which, as members of the board, they might exercise an influence. But, the j>lan of the work, the materials to be used, and the mode and time of completion, might all he influenced by the individual interests of these men, and determined, in a way which would effectually exclude a fair competition in bidding. And, they would, of course, have a voice in determining upon the mode in which the work was after-wards done under the contract, and in its acceptance. In all these matters, the influence of these contractors would not only be given by their own votes, but, as all the members must be supposed to be more or less influenced by them, though but a minority, they may determine the majority; and, it is manifestly impossible, from the nature of the case, to ascertain and measure the amount of their influence upon the board, or in what manner it may have affected the action of the other members, or -what would have been the determination of the majority without that influence; the members themselves could neither state nor know it.

And, though these contractors may, as members of the board, have acted honestly, and solely with reference to the public interest, yet if they have acted otherwise, they occupy a position which puts it in their power to conceal the evidence of the facts, and to defy detection. If, therefore, such contracts were to be held valid, until shown to to be fraudulent or corrupt, the result, as a general rule, would be, that they must be enforced in spite of fraud or corruption. Hence, the only safe rule in such cases, is to treat the contract as void, without reference to the question of fraud in fact, unless affirmed by the opposite party. This rule appears to me so manifestly in accordance with sound public policy as to require no authority for its support.

Campbell J.:

While I concur in holding that this is not, upon the facts presented, a proper case for a mandamus, I do not agree with my brethren in their view of the invalidity of the contract. The Harbor Committee entrusted with the work consisted of twenty-eight members — seven from each township — and was a separate corporate body, acting by vote. The law required the contract for the harbor improvements to be given to the lowest responsible bidder; and those members of the committee who were with other persons successful bidders for the contract, were a minority, whose vote was not essential, and could not have changed the result, which was one of figures and computation.

The opinion of my brethren is based upon the rule, which prevents certain persons occupying fiduciary relations, from dealing, for their own benefit, with the funds under their care. It it a well settled principle that the same person cannot be vendor and purchaser, because his contract lacks the necessary element of two parties; neither can a trustee become interested to the detriment of his cestui que trust, or an agent to the detriment of his principal. Even these contracts, however, are not universally void. They are usually voidable at the option of the party defrauded or affected, but they are not absolutely void, except where, by reason of the identity of vendor and vendee, a contract is in the eye of the law impossible* And, where the injured party elects to avoid them, he must in general, make such compensation as will place the trustee in static quo. — See the cases collected in 1 Lead. Cas. in Eq. 157, 167, 168.

So far as I have been able to ascertain from the autho rities, this doctrine is confined to cases of the purchase of property; and has been maintained on the principle that by such a purchase a trust is made to attach, which in equity creates a beneficial interest in favor of the cestui que trust. And although it is doubtless true that contracts between parties in a fiduciary relation will be closely criticised, I find no rule of nullity affecting them merely as contracts.

On the contrary, in all cases of corporations, public and private (for no distinction is made in the books, and none exists in reason between them), it is a familiar principle that they may contract as freely with one individual as with another; and that there is no legal, identity between the corporate body and its individual members or officers, iu their private capacity. The only exception seems to be the one already referred to, where the corporation cannot act at all without the action of some particular person, who is thereby disqualified from dealing with himself, and who, of course, cannot contract with himself.— 1 Kyd on Corp. 180, 181; A. & A. on Corp. § 233. In other cases, and where the contract may be made on behalf of the corporation, without the assistance of a particular member or officer, a contract with him is as valid as if he were a stranger. — Stoddert v. Vestry of Port Tobacco, 2 Gill & J. 227; Geer v. School District No. One in Richmond, 6 Vt. 76; Sawyer v. Methodist Ep. Society in Royalton, 18 Vt. 405; Rogers v. Danby Universalist Society, 19 Vt. 187; Albright v. Chester, 9 Rich. Law, 399; Proprietors of Canal Bridge v. Gordon, 1 Pick. 297. This last case is a somewhat singular exemplification of the rule, for there the same persons were officers of the different corporations, and the corporations contracted with each other by their action. It is also in point, upon some of the questions on the contract before us, inasmuch as acquiescence in a certain course of things was held to imply assent.

It is not suggested anywhere, that public agents labor under more disqualifications than private agents. The whole doctrine, so far as it has been carried at all, originated in private trusts and agencies. The cases cited embrace all kinds of corporations, public as well as private. So far as private corporations are concerned, transactions with their own officers are of every day occurrence. The laws sometimes, as in the charters of many banks, limit the extent of such bargains, but never, or rarely, forbid them. In municipal corporations we frequently find statutory provisions, forbidding tbe letting .of contracts to officers of the municipality. Such statutes would be needless, if the general rules of law forbade it. And, in small and new townships, forbidding such contracts would be equivalent to shutting the best men out from office. Works of enterprise, in such localities, cannot usually find many bidders. The evils have not been found very serious, and the Legislature can easily provide for them when they are supposed .to need redress. I think it safe to leave' the [subject for such action, instead of adopting- a rule, which, if carried to its legitimate consequences, would cripple many of the largest enterprises in the country. By providing that contracts shall be let to the lowest bidder, the law has adopted as effectual means of protection as the other rule is likely, in such cases, as the present, to ensure to the townships interested. I see nothing in this case to invalidate the contract.

I think, however, that the controversy should be adjusted by an action at law or suit in equity. There are several questions in controversy, and among others the inquiry arises whether the work has been done as agreed. There has been no acceptance shown beyond dispute, and there is nothing before us to bind any parties to the payment of a liquidated amount not subject to reduction. The action of the board of Holland is not, as the case stands before us, conclusive upon the rest. The whole matter is in such a shape that it cannot lawfully, as I think, be taken from the cognizance of the ordinary tribunals. For this reason I concur in refusing a mandamus.

Mandamus refused.

Martin Ch. J. did not sit in this case.