author: Manning J.: Campbell J.: Martin Ch. J.: Christiancy J.:

text:
    John Morissey and others v. The People.
    Whether the State can lawfully provide for the punishment in Michigan of persons who having committed a larceny in a foreign country bring the stolen property into the State, quere: the Court being equally divided on the question.
    If the statute for that purpose — Comp. L. §5797 — is valid, whether an information under it is sufficient which charges the defendant in the ordinary form with a larceny committed in this State, quere: the Court being equally divided on the question.
    Where an examination has been had before a magistrate on a criminal charge* and the accused is discharged, an information can not afterwards be filed against him for the same offense.
    If an information is filed after examination and discharge, the defendant may prove those facts in bar of the prosecution, under the plea of not guilty.
    Under the act of March 11, 1861, the wife of a defendant in a criminal prosecution may be examined as a witness on behalf of a co-defendant of her husband.
    An objection to a question that it is leading must be taken before the question is answered. Per Manning J.

      A judgment can "be reversed only for errors appearing on the face of the record. Where a question put to a witness is objected to, the reason for the objection must "be stated, and must appear by the bill of exceptions, or it can not be presumed on error that it was erroneously overruled. Per Manning J.
    The question “ Will you state whether or not in your judgment the samples now-shown to you are off the pieces that were stolen,” is not objectionable as being leading. Per Manning J.
    Where this question is put to a witness shown to have been acquainted with the piece stolen, it is not objectionable on the- ground that the witness has not been shown to be an expert. Per Manning J.

      Heard October 25th, 1862.

      Decided May 20th.

    Error to the Recorder’s Court of Detroit.
    A sufficient statement of the facts will be found in the opinion of Justice Manning.

      G. V. N. Lothrop, J. K. Gavin, and M. J. O’Riley, for plaintiffs in error.

      C. Upson, Attorney General, for the People.
   Manning J.:

The plaintiffs in error were convicted of larceny on an information charging the larceny to have been committed in tbe city of Detroit. On tbe trial it appeared the articles mentioned in the information were taken from a store that was broken open on tbe night of tbe 19th of November, 1860, at Windsor, on tbe opposite side of tbe Detroit River, in Canada, and were brought over tbe river to tbe city.

On the trial tbe evidence to prove these facts was objected to, on two grounds: 1st, That tbe information did not charge the larceny to have been committed in Canada; and, 2d, That tbe statute — Comp. R. §6797 — is unconstitutional.

Tbe statute is in these words: “Every person who shall feloniously steal tbe property of another, in any other state or country, and shall bring tbe same into this State, may be convicted and punished in tbe same mañuelas if such larceny bad been committed in this State; and

in every such case such larceny may be charged to have been committed in any town or city into or through which such stolen property shall have been brought.”

Whether a person committing theft in another state or country and bringing the stolen property into Michigan, would be guilty of larceny in Michigan, independent of the statute, we need not stop to inquire, as the statute removes all doubt on that subject, if any previously existed, and I entertain no doubt as to the constitutionality of the statute -.— Tyler v. The People, 8 Mich. 320.

The other objection- — that the information did not state the larceny was committed in Canada — would seem to rest on the erroneous notion that the prisoners were on trial for what they did in Canada. Such was not the case. They were tried and convicted for a larceny committed by them in the city of Detroit. They were guilty of a like offense for taking • the same goods in Canada. But that was an offense against the laws of Canada, for which they could only be punished in Canada. The statute does not punish them for what they did there, but for the theft of the same goods by them in Michigan.

They acquired no property in the goods by the felonious taking in Canada. The title to personal property is not changed by carrying it from one country into another. It remains the same. And if the title is called in question in the country to which the property has been removed, on a state of facts occurring in the other before the transition, it is to be’ determined by the laws of the latter. When the prisoners, therefore, brought the stolen articles to Detroit, they were not theirs. They had no right to them — not even the right of possession. They were the goods of the Messrs. Dougall-from whom .they had feloniously taken them, and as. such were under the protection of our laws. It was for stealing the goods of the Messrs. Dougall in the State of Michigan that the prisoners were tried and convicted.

There was therefore no occasion for stating the theft' in Canada in the information. It was necessary to show It on the trial, to prove the character of the prisoners’ possession, of the stolen property; for if that possession was felonious in Canada it was felonious in Michigan. The same goods may be stolen at different times and at different places by. the same person. 'The first theft does not give the thief such an interest in the possession of the thing stolen • that he can not steal it a Second time by carrying it with him into another state, where he might have been punished for the first offense had it occurred there. The indictment or information must state the crimfe for which the prisoner is tried, but it need not, and should not, state the evidence by which it is to be proved.

. Bell Morrissey, wife of William Morrissey,- was properly rejected as a witness for John Morrissey, a co-defendant with her husband in the Court below.

In Pullen v. The People, 1 Doug. Mich. 48, it was decided that where two persons are jointly charged with the commission of. an offense, and neither of them has been convicted or acquitted, the husband of one is not a competent witness for the óther. The only difference between that case and this, is, that in that case the husband of one of the defendants was offered as a witness for a co-defendant, who was being tried separately; whereas in this case the proposed witness was a wife of a co-defendant, and all the defendants were being tried together. A difference in circumstances in no way affecting the principle of law applicable to the two cases.

Was the witness competent under Act No. 125 of the Session Laws of 1861 ? The first section of this a'ct, amending § 4339 of the Compiled Laws, removes the common law disability of witnesses by reason of crime, interest in the suit, or marital relation. It is the last of these, or the removal of the common law disability from marital relation by this section, that we have to consider on the present occasion.

By the fourth section of the act, it is provided that, a husband shall not be examined as a witness for or against his wife, without her consent, nor a wife for or against her husband without his consent. And by section two of the act, amending § 4340 of the Compiled Laws, parties to any suit or proceeding are made competent witnesses therein, with the following proviso: “Nothing in this .act shall be • construed as giving the right to compel a defendant in criminal. cases to testify, but every such defendant shall be at liberty to make a statement to the Court or jury, and may be cross-examined upon any such statement.”

In The People v. Thomas, 9 Mich. 314, we held that a defendant in a criminal case could not be a witness for himself under the act. That case does not cover all the ground of the present case. The only question was, whether the prisoner could be a witness for himself. Not whether he could be a witness for a co-prisoner; and, if he could not, whether his wife could be. Although the case does not go this length, the reason on which the doctrine rests I think does. It is that the second section of the act makes parties witnesses in civil cases only. As the first section does not make parties witnesses, and the second section making them witnesses does not 'extend to criminal prosecutions, it follows that one defendant in a criminal case cannot be a witness for or against another defendant. And, we can not presume, where the Legislature have withheld the right of a witness from a party, they intended to give it to the wife or husband of such party. There is nothing on which to rest such a conclusion, if it did not contain the elements of refutation within itself. What reason can there be for saying a prisoner shall not be a witness for himself unless he testifies through his wife? for it amounts to that if she may be a witness for him, with his consent, [and cannot be -used against him if he objects.

I will next notice the exception taken on the examination of Oulette. He testified that he was a clerk in Dougall’s store, in Canada, and had seen and handled the cloths that were stolen. He was then asked by the prosecution: “Will you state whether or not, in- your judgment, these samples now shown to you are off the pieces that were stolen?” The question was objected to, the objection overruled, and an exception was taken. .The reason for the objection does not appear in the bill of exceptions. In the brief submitted two are given. First, because it does not appear the witness was an expert; Second, because the question was leading.

A judgment can be reversed only for errors appearing-on the face of the record. Error is not to be presumed.

It is not the • office of a bill of exceptions to state all of the evidence given on the trial, but so much of it only — or a' statement in lieu thereof, that there was evidence tending to prove such and such facts — with Such other circumstances occurring on the trial, as to make the error patent, if any. Hence the reason. for objecting to a witness, or to any question put to him, should appear-in the bill'of exceptions. The'witness is to be presumed competent, and the question put to him pertinent and proper, unless the inadmissibility of the one or the other appears from the record.

It is obvious from the bill of exceptions that the most important question for the jury to pass upon was one' of identity. It was whether the cloths seen in the prisoners’ possession in the city of Detroit, were the cloths taken from Dougall’s store in Canada. Identity may be proved by a variety of circumstances.' We know not how to fix any bounds to the proof of circumstances for that purpose. Each case must determine its own limits. Any circumstance that may, of itself or in connection with one or more other circumstances, tend to prove it, is clearly admissible. It is for the jury and not the Court to determine the weight that should be given to it in making up their verdict.

Oulette was a clerk in Dougall’s store, and had ' seen and handled the cloths that were stolen. He was shown samples of cloths, which we are to presume were taken from the cloths seen in the prisoners’ possession in the city of Detroit, and asked the question objected to and. allowed by the Court. His opinion as to their being off the pieces stolen, with the means he had for forming that opinion, and his reasons for it, were circumstances proper for the consideration of the jury.

As to the other objection —that the question was leading— it comes too late, if it would have been good had it been taken in season. It should have been taken before the question was answered, and not after, if it was taken at all on the trial, which does not appear to have been the case from the bill of exceptions. But we do not think the question a leading one in the sense that renders such questions objectionable. In what way could the opinion of the witness be obtained unless he was asked for it? Was he to volunteer it, and to be dogged with questions until he did? Or if he could not be put on scent of the answer he was expected to give by questions leading from it, instead of to it, must justice be sacrificed? and the truth be excluded by the means used' to elicit it ? Such a course of procedure in the administration of justice would bring the judiciary of the State into contempt, and not without cause.

For reasons already stated, and other like reasons, I see no well founded objection to the evidence of Julius Blodgett, offered for the same purpose.

There was evidence of an examination and discharge of the prisoners by a Justice of the Peace before the information was filed; and the Court was requested to charge the jury that if they should find such to have been the case they must acquit the prisoners.

It' is difficult to conceive on wbat ground this request Was made. The statute had been complied with. Laws 1859, p. 891. The prisoners had had their examination. For what cause the Justice thought proper ■ to discharge them is immaterial, as the examination and discharge were not a trial and acquittal for the offense.

It was essential to the prosecution that the cloths should have been taken. under such circumstances as would be stealing in Canada. The Court ,so instructed the jury, but refused to charge them that if they did not find from the evidence that a felonious stealing was a criminal offense by-the laws of Canada, they must acquit the prisoners. Instead of charging as requested, the Court stated to the jury that the common law must be presumed to be in force in Canada, and that by the common law felonious stealing is a crime.

Stealing is a crime recognized by all laws, human and divine. It therefore seems singular that proof should be required of its being a crime in Canada. It being malum in se, and a common law and not a statutory offense — and the common law prevailing in Canada — we are to presume it is a crime there as well as in our own State. I think the Court was not only correct in this, but also in charging that unexplained suspicious possession in Detroit of property recently obtained by larceny in Canada, was presumptive-evidence that the. possessor committed the larceny in Canada.

To warrant a joint conviction, the prisoners must have jointly brought the property across the river, or been com Cerned or interested in bringing it to Detroit. ’This we-' think is what is meant by the following, paragraph in the charge of the Court:

“The information charges a joint crime. You must find' a joint possession by the prisoners of the goods in Detroit, or there can be no conviction. You -may convict one or ¡more of the prisoners and acquit the others.”

If the Court meant, or was understood by the jury, to say there could not be a conviction of one of the prisoners unless all were concerned in the possession in Detroit, the charge was erroneous. But the judgment should not for that cause be reversed, as the error was in favor of the prisoners, and could not possibly have operated to their prejudice.

I think the judgment of the Recorder’s Court should be. affirmed.

Campbell J.:

Defendants were convicted of larceny, on evidence directed towards proving a larceny committed in Canada, of goods subsequently brought into Wayne county in this State, where 'the trial was had.

The questions presented by the bill of exceptions refer to. the validity of the statute punishing such acts, the sufficiency of the information, and various rulings on the trial.

The statute^provides that “ every person who shall feloniously steal the property of another in any other state' or country, and shall bring the same into this State, may be convicted and punished in the. same manner as if such larceny had been committed in this State, and in every such case such' larceny may be charged to have been committed in any town or city into or through which such stolen property • shall have been brought-, jProvided, That every such person may plead a former conviction or acquittal for the same offense in another state or country, and if such plea be admitted or established, it shall be a bar to any farther or other proceedings against such person for the same offense.” Comp. L. §5797.

The two succeeding sections punish receivers, aiders and abettors.

It is not claimed by any one that we have the right to punish offenses committed abroad beyond our jurisdietion. Nor have we as a State any right to impose penal or other conditions for excluding persons from entering our territory; that intercourse being a matter of national concern. If a person takes refuge here who has committed crimes in another state, or abroad, he is to be considered as a fugitive from justice, and we can not retain him from reclamation as such upon any claim of our own to punish the, act; and where our Government has not seen fit to provide for such rendition to foreign powers, it is not easy to perceive how any State can assume to redress the grievances of other nations. If we had the power which is possessed by independent nations, of placing such conditions on foreign intercourse as we might see fit, we might exclude criminals on such penalties as we -should enact; but we. have no such authority. And we can only punish men for offenses committed against our own sovereignty ; which can only embrace acts committed within our own territory. The question then, occurs whether the offense for which the prisoners were tried is one of that description.

The information charges an ordinary lare^iy at common law, by stealing, taking and carrying away property in Detroit, in the county of Wayne, in this State. It is a good information for an offense committed in Wayne county. We have no statutory definition of larceny, and all our statutes use it in its common law sense. If this information uses the common law phraseology to denote something entirely different, then it . does not give the defendants that description of their alleged offense which is their constitutional “ right, and no evidence is admissible under it: — Norris v. State, 33 Miss. 373; Commonwealth v. Simpson, 9 Met. 138; Rex v. Millar, 7 C. & P. 665; 1 Chit. Cr. L. 169, l70, 231; Shannon v. People, 5 Mich. 71. Such a misdescription can derive no aid from legislation. If a legislature could misapj>ly terms by confounding under one name entirely different things, the Constitution would cease to be of any use as a restraint. But a construction which involves such unjust consequences to defendants ought not to be adopted under any circumstances if any other can be safely applied.

Is the case offered in proof a common law larceny ? There are some authorities in this country which so regard it. But the statute itself is not based upon any such theory, as will appear hereafter from a comparison of its clauses.

And the weight of authority is entirely the other way. There is no description of larceny (and this statute forms no exception to the rule) which does not make the offense consist of a felonious talcing, and also of a removal with felonious intent. Both of these must coincide in order to make out the crime; and both, therefore, must occur within the territory of the sovereignty which punishes them. And as the theft is one act, it was held at common law that it might be punished in any venue within the realm where the property had been carried by the thief. But' so essential was the felonious talcing that where the property was originally taken beyond the realm and brought within it, no larceny was committed in England, the possession being only rendered criminal by the first act of stealing, which was not an act that affected the peace or welfare of the Kingdom. This was held where the original taking was at sea: — 3 Inst. 113; 1 Hawk. P. C. c. 33, s. 52. Or in Scotland before the new statutes, although since the Union. Rex v. Anderson, 2 East P. C. 772. There are now acts of Parliament reaching all cases where the taking is within the United Kingdom of Great Britain and Ireland. Yet even now, the offense is so limited by locality that a taking in the island of Jersey, which is subject to the British Parliament, but not technically a part of the United Kingdom, is put by the decisions on the same footing with a taking in France, it being held that in neither case can bringing property stolen without the Kingdom into England, be considered larceny in England: — Rex v. Prowes, 1 Moody C. C. 349; Regina v. Madge, 9 C. & P. 29. Although it is loosely said that the continued possession amounts to a new caption and asportation, yet the decisions show that this is not accurately true, for if it were the eases just referred to are incorrect. The real ground of the decisions is that the taking and subsequent felonious possession form one continuous act, which derives- its character from the original taking, but which may be punished by the authority offended by such taking in any place within the realm where the offense has been kept up. No one has ever supposed, and certainly no case has ever decided, that a possession of stolen goods in different counties amounted to a succession of separate punishable larcenies. The decisions recognize, in. all the continuing possession, but one single offense committed within the jurisdiction; It is in the power of every country to select the place of trial and' punishment at its option, and the ordinary rules of locality have nothing to do with the question, whether a State can punish offenses not committed within its jurisdiction.

There are some American cases which assume that larceny in one State, followed by possession in another, is punishable in the latter at common law. So far as they purport to rest on English decisions there is no foundation for them, and they do not in general lay down any other source of authority except local -usage. The early Massachusetts cases derived the jurisdiction from a supposed analogy between the States of the Union and the counties a State. But this analogy is not a true one, and if it were, would not reach the case before us. In the case of the Commonwealth v. Uprichard, 3 Gray, 434, which was just such a case as the one we are now considering, the Supreme' Court of Massachusetts declined to extend the rule of their early decisions to larcenies committed abroad, and show by very clear and cogent reasoning that punishing the possession of the stolen goods in' Massachusetts involves of necessity the inquiry into and punishment of a foreign crime. The reasoning and the intimations of the Court show the incorrectness of the previous doctrines. The various American cases are collected and considered, and the decision is based upon grounds which are inconsistent ’ with the validity of any attempt to exercise such a jurisdiction.

A defendant who is called upon to respond to an information charging a local common law offense in Michigan, can not be said to be apprised of the charge that the offense was in fact committed in Canada, or that any inquiry is to be made into Canadian transactions. Nor is it possible for him, under an informa¡tion of this form, to avail himself of the statutory defenses. The statute expressly provides that an acquittal or conviction of the same offense in Canada may be pleaded specially in bar. If the defendants had to this information charging an offense in Wayne county pleaded an acquittal in Canada, there is no process by which it could be shown that the offenses are identical. Until the trial is actually commenced the prisoners can not, and the Court can not, determine whether the offenses are the same. The Canada indictment would not, neither would the Canada proofs, necessarily or probably trace the goods to Detroit; and the Court could not assume that the defendants were not pursued for doing what the accusation fairly implies to have been done in Michigan. The record here instead of agreeing with the Canadian proofs and, records varies entirely from them.

And this leads to a consideration of the terms of the statute as seeking directly to punish what it defines expressly as a foreign and not a domestic offense. Those cases which sustain guch statutes treat them as punishing .not the larceny, but the bringing of the property into the State. This does not relieve the difficulty very much. But this construction is not warranted by the statute. It punishes the larceny and nothing else. It. provides that the thief “ may be convicted and punished in the same manner as if such larceny had been committed in this State; and in every such case such larceny may be charged to have been committed in any town, &c.” It is the larceny committed in Canada which may be charged, convicted 'and punished, as if committed in Michigan. And it is “a former conviction or acquittal for the same offense,” which may be pleaded in' bar to any further or other proceedings against such person for the same offense'!’’ In other words, it expressly purports to reach a larceny committed abroad, not, even declaring that the importation of the goods shall constitute that offense.' • The larceny in Canada is entirely separate from that importation, and yet a conviction or acquittal of it is an acquittal or conviction of “ the same offense ” which the statute punishes.

The most serious difficulties in the way of a fair trial— apart from the question of territorial 'jurisdiction — are not lessened by the other interpretation. Whatever view may be taken of the real meaning of the statute, it becomes necessary upon the trial to investigate transactions in Canada, and to determine their character under the laws of Canada. It is not within the power of the State of Michigan to compel the attendance of witnesses for the defense from another country. And, where a transaction occurs abroad, it is not only a fair but an inevitable presumption, that most of the witnesses are abroad. Where the main fact to be determined is a criminal act, committed beyond the State, the defendant is likely to be at the mercy of the prosecution. He can not produce either eye-witnesses of the transaction, or impeaching witnesses, unless they choose to present themselves. When' the Constitution assures a defendant '■'■compulsory process for obtaining witnesses in his favorf it can not contemplate a trial for foreign crimes, where it is, not presumable that such witnesses can be compelled to appear. It is also necessary to prove foreign laws as facts; and the foreign common law must be proved by living witnesses. Even if we could in a criminal case make any presumption concerning a foreign law, that presumption may be overthrown. And although it may be true that stealing is a crime punished by all nations, it is not the same thing in all nations. Some codes make no distinction between larceny and embezzlement. Our statutes embrace under the head of larceny many acts which at common law are only civil trespasses, and not crimes at all. In Spencer v. The State, 20 Ala. 24, in construing just such a statute as this the Court were compelled by these considerations to limit its operation to larceny at common law, although they thus disregarded a practice recognized in several previous decisions. And it may fairly be doubted whether, if the question should directly arise, they would sustain the law even thus far.

I am of opinion that the defendants were not lawfully held to trial for the larceny which was allowed to be introduced in evidence.

I also think that the statute does not permit informations to be filed where the defendant has. been discharged upon his preliminary examination. We held in The People v. McKinney, 10 Mich. 54, that the trial must be on the same matters concerning which- proof was offered on the examination; and the statute is very plain upon that point. But this examination is only returned when the defendant is held upon it, and the law has never sanctioned putting any one to his trial until probable cause has been made to appear by responsible testimony. If a Prosecuting Attorney can assume the right to file an information without this security against abuse, the examination becomes of no account, and is a farce.

. I think that Bell Morrissey was a competent, witness. The statute of 1861 declares in express terms that “no person shall be excluded from giving evidence in any matter, civil or criminal,” “by reason of marital or other relationship to any party thereto:” p. 168, §1. The only qualification is that husband and wife can not testify for or against each other without consent. The rule laid down in Pullen v. The People, 1 Doug. Mich. 48, was the old common law rule which this statute was designed to supplant. The language seems so plain that I can not imagine a case to which it would apply' if it will not apply to this.

Without passing upon, the other questions raised, I am 'of opinion that the defendants should be discharged, and that no further proceedings be had upon the verdict.

Martin Ch. J.:

I fully concur with my brother Campbell.

Christiancy J.:

I concur with my brother Manning in holding that the information is sufficient for the case made by the proofs, and that the statute in question is constitutional.

The question suggested by my brother Campbell in reference to a plea of former conviction or acquittal in Canada, is one which does not' arise in the case, as there was no such plea; and for this reason it can have no bearing upon the constitutionality of the statute as applied to this case.

Should this question ever arise, it will not, I think, be found , much more difficult, of solution, in a manner con-, sistent with the rights of a defendant, than in many other cases where a plea of former conviction or acquittal has been interposed. In most, if. not in all cases, where such plea is put in, it' is necessary to resort to proof dehors the record to' establish it, and that before the trial on the merits. Nor, so far as I can discover, does the question of difficulty in procuring evidence from a foreign jurisdiction have any bearing uj>on the question: this is a difficulty which might and often does occur in every species of trial, where all parts of the transaction have occurred within the State; and it is a difficulty -which, affects the prosecution even more than the defense; as the defendant under the tatute may take depositions out of the State if he please, while the prosecution can not, unless the defendant elect to do so.

But upon the question of the admissibility of Bell Morrissey, the wife of William Morrissey, in behalf of John Morrissey, to prove an alibi as to him, I concur with my brother Campbell, that her testimony was admissible under the act of March 11th, 1861. The act took effect from its date, and the trial seems to have been' had the next day, and probably before the Court was aware of its passage.

I also concur with my brother Campbell, that the statute in reference to informations does not authorize a criminal prosecution by information when the defendant has been discharged on preliminary examination. This examination was, I think, intended as the principal safeguard against groundless or vindictive prosecutions which it was supposed might otherwise occur, where t-he interposition of the g'rand jury was dispensed with. The Legislature do not seem to have been willing to leave the question of prosecution to the judgment or discretion of the prosecuting officer alone. This safeguard would be swept away, and the purpose of the statute defeated, if the defendant could be put upon his trial upon an information after he had been discharged upon the examination.

vThe statute provides that a defendant may waive an examination: and in Washburn v. The People, 10 Mich. 372, the majority of this Court held that the defendant might waive this right as well when called upon to plead to the information, as when brought before the examining magistrate. That in order to take advantage of the want of such examination, the defendant must plead it in abatement, or move to quash the information upon that ground; and if he did neither, he must be held to have waived the examination. But in the present case there is no question of waiver, or of mere irregularity of proceedings prior .to the information. The matter here is in bar of the whole proceeding by information; and, though the question might perhaps have been brought before the Court by motion to quash, and perhaps by plea, to the jurisdiction, yet whenever the fact appears to the Court to be undisputed, in any stage of the case, I think it is the duty of the Court to arrest the proceedings, and that the defendant should therefore be allowed to show the fact 'under the plea of -not guilty; as the whole jurisdiction of the Court to try the prisoner depends upon it.

Upon the two grounds above indicated, I think the verdict should be set aside; but as the fact of the acquittal upon the examination appears to have been undisputed, no new trial should be granted.

Judgment reversed\ and prisoners discharged.


source: Caselaw Access Project

author: Martin Ch. J.: Campbell J.:

license: Public Domain

text:
    Loyal C. Kellogg v. Lyman Putnam and others.
    The Supremo Court will not revere© an order or decree in chancery for a mere irregularity not affecting injuriously the interests of the appellants. •
    The proper course for a party conceiving himself aggrieved by an irregularity in proceedings in chancery, is to' apply to that Court for relief upon showing that ho has or will sustain injury therefrom; and if this application is denied, to appeal to the Supreme Court thereafter.
    Where a suit in chancery is brought to a hearing, and interlocutory decree is made in complainant’s favor, and the Court orders a reference to a commis.sioner to computo the amount on a basis fixed by the interlocutory decree, and no inquiry into facts is to be had on the reference, the defendant is not entitled to notice of filing and confirmation of the report, or of hearing thereon.

      Heard April 9th,

      Decided May 30th.

    Appeal from, the Kalamazoo Circuit in Chancery.
    The bill was filed to foreclose a mortgage. The defendants answered, setting up payment and other defenses. On May 23, 1862, the cause was brought, to a hearing, and the Court made an interlocutory decree, adjudging the whole amount of the mortgage to be owing to complainant, as claimed by his bill, and referring the cause to a Circuit Court Commissioner to report the amount. The Commissioner on the next day issued his summons for a hearing on the reference May 29th, and this summons was duly served on the solicitor for defendants, who, however, did not attend. On the 29th the Commissioner reported his computation of the amount due, which was filed the same day, and a common order entered that it stand confirmed unless cause to the contrary was shown in eight days. Without waiting for this time to elapse, complainant at once entered up final decree. Defendants appealed, alleging as error in the proceedings, that they were entitled to notice of the filing of the report before it could be confirmed; that it must be confirmed before a final decree could be founded thereon; and that final decree could not be taken without notice to defendants. Comp. L. § 3500.

      Hughes & Wooley, for complainant.

      C. I. Walker, for defendants.
   Martin Ch. J.:

When an order or decree of the Circuit Court in Chancery is brought by appeal to this Court, we are required to examine all errors that may be assigned or found in such order or decree, and have power to reverse, affirm or alter such order or decree, and to make such other order or decree therein as shall be just. The error alleged in this case is at most but an irregularity, in no way, as we can see from the case, affecting the rights of the defendant, or the merits of the case. We are not inclined to entertain appeals for such causes. The true and proper course is for the party conceiving himself aggrieved to apply to the Court below for redress, upon showing that he has or will sustain injury, if the decree stands; and if aggrieved by the order of the Court upon such application, to appeal therefrom to this Court.

We do not think that, without strong showing of cause, we should reverse a decree like that before us, where it is apparent that an absolute injury to the complainant, without any possible benefit to the defendant, would result. A reversal by this Court for a technical error would not be just. The decree must be affirmed.

Campbell J.:

The case below having been noticed for final hearing, the Court referred it to a Master simply to make a computation on a basis established, by the order of reference, and in such a manner as to leave no room for the admission of testimony, or any other inquiry. It was a mere substitution of the Master for the Court in a matter of convenience involving no discretion, and the Court could have determined the result for itself, and could not have arrived at a different result with an ordinary knowledge of the rules of arithmetic. It is evident no reference in the ordinary sense was designed, and the order contemplated on its face an immediate report and decree on the computation. For this reason, I think no error was committed in giving an immediate decree. Had the reference involved any inquiry into facts, I think the statutory right to notice would have existed.

Manning and Christiancy J J. concurred in both opinions.

Deoree affirmed.


author: Martin Ch. J.: Campbell J.

text:
    Richard Ash v. The People.
    The ordinance of the city of Detroit prohibiting the keeping of stalls for the sale of fresh meats outside of the public markets, without license from the mayor» and requiring the payment of a license fee of five dollars, is a valid ordinance.
    Such license fee is not a tax, but a reasonable compensation which the city demands from thoso who will not sell in the public markets, for the additional labor of its officers, and expense thereby imposed.

      Heard May 22d.

      Decided May 30th.

    Error to the Recorder’s Court of Detroit.

      G. V. N. Lothrop, for plaintiff in error:
    The ordinance, we insist, is invalid.

      First. Ordinances and by-laws must conform to [the Constitution and general laws of the State: — A. & A. on Corp. 31; Kennebec & P. R. Co. v. Kendall, 31 Me. 470; Dunham v. Trustees, 5 Cow. 462.

      Second. They must be within the powers of the cor' poration, and must be reasonable, or they are invalid: —- A. & A. on Corp. 346; Dunham v. Trustees, 5 Cow. 462 ; State v. Ferguson, 33 N. H. 424.

      Third. Whether reasonable or not is a matter of law: — A. & A. on Corp. 357; Commonwealth v. Worcester, 3 Pick. 462; Commonwealth v. Gas Co. 12 Penn. St. 318.

      Fourth. The fee exacted under the ordinance is, in fact, a tax. The case finds that the sum exceeded the expenses of granting the license. It is, therefore, levied as a source of revenue. Where imposts are levied on callings for revenue purposes, it is both in form and substance taxation: — Freeholders v. Barber, 2 Halst. 64; Kip v. Peterson, 2 Dutch. 298; Bennet v. Borough, 31 Penn. St. 15; Commonwealth v. Stodder, 2 Cush. 562.
    I deny, first, that under our Constitution a revenue can be raised in this way. All taxation for revenue must be upon property. Art. XIV. §§H, 12 and 13. Had taxation of callings been contemplated it would surely have been provided for.

      Second. It is foreign to our whole system that revenue taxation should be exercised under “by-laws.” This high governmental prerogative is regulated by law, and not by by-law. Commonwealth v. Turner, 1 Cush. 493.

      Third. I do not think a true construction of the charter warrants the ordinance. A license does not properly imply the payment of a sum of money, though they are so frequently connected as to become associated in our habits of thought. The idea of license is founded on the facts, that there are callings in which the public have such an interest that no one shall exercise them without especial legal permission. This permission is license. This Court licenses attorneys. Should ' a revenue charge be added, there would be something more than license, viz.: taxation.
    The Council may “license and regulate.” The “license” is permission. There remains “^regulation.” But no one will contend that the fee exacted is regulation. What right, then, does the charter give to raise revenue under color of a license?
    But, fourth, even if persons and callings, as well as property, are subject' to taxation, still such taxation must be uniform. If the calling is taxed, it must be by law applicable to all those engaged in it in the city. The Legislature could not select out those in one ward, one street, or doing business inside - or outside any particular locality. And if the Legislature could not, of course- the city can not. See Merriam v. New Orleans, 14 La. An. 318.
    This ordinance, taxing only those who do business outside the public markets, imposes an unequal and partial rule of taxation, and, therefore, is in violation of the Constitution. .

      Fifth. The ordinance is unreasonable, and, therefore, invalid. By-laws must be uniform, just, and equal. They are allowed only as a means of enabling coiporations to make a fair, just, and judicious exercise of their powers. If they violate this condition they are void. Now, viewing this ordinance as a mode of taxation, it is clearly unequal. On the other hand, viewing the ordinance as a rule to regulate a calling, it ought to be equal and uniform. It must embrace the whole calling. And the sum exacted for the license must not be an arbitrary burden, but in some way conduce to, or serve the system of regulation. If - it were otherwise, the city could establish its own markets, holding the same on its own property, fix its rents at pleasure, and then, by refusing all licenses to .private meat markets, or fixing exorbitant license rates, create and maintain an odious monopoly. And, if this ordinance is valid, the city of Detroit can do so to-day.
    This ordinance, as it stands, is the arbitrary imposition •of a burden upon a portion of a calling, without any common benefit: — Austin v. Murray, 16 Pick. 124; Boston v. Shaw, 1 Met. 130; Mayor v. Winfred, 8 Humph. 707; Dunham v. Trustees, 5 Cow. 462; Buffalo v. Webster, 10 Wend. 102.

      Wm. Gray, for the People:
    ‘ 1. The’ ordinance in question is within the powers granted to the Common Council by the charter. .Even if no other power were granted than the right to establish and regulate markets, the Council might lawfully pass an ordinance prohibiting the sale of meat elsewhere than in the' public markets. Under any other construction the power to establish markets would be ineffectual.
    But, taken together, the provisions of the charter above referred to confer upon the Council power to regulate the sale of meat at places other than the public markets, even to the extent of prohibition: — Bush v. Seabury, 8 Johns. 418; Village of Buffalo v. Webster, 10 Wend. 99; City of Davenport v. Kelly, 7 Iowa, 102; Town of Winnsboro' v. Smart, 11 Rich. 551; City of Brooklyn v. Cleves, Hill & Denio, 231; City of St. Louis v. Jack
      son, 25 Mo. 37; Mayor, etc., of Mobile v. Yuille, 3 Ala. 137; Shelton v. Mayor of Mobile, 30 Ala. 540.
    2. And such, an ordinance is not unreasonable, nor against common right, nor in restraint of trade. See in addition to cases cited above, Fazakerly v. Willshire, 1 Strange, 463; Wannel v. Chamberlain of London, 1 Strange, 675; King v. Chamberlain of London, 3 Burr. 1322; Price v. Bartram, Cowp. 269; Nightingale, Petitioner, 11 Pick. 168.
    3. The grant of power to license and regulate includes the power to require the payment of money for permission to sell elsewhere than in the public markets. And such an exaction is not a tax. If, under the grant of power to license and regulate, the Council may wholly prohibit, they may partially prohibit, or, in other words; grant permission to sell in private markets, upon such terms and conditions as they may deem proper. The payment of money for a license may lawfully be made a condition, as an effectual method of regulating the sale, by confining it to such persons and places as the health and good order of the city may require.
    The words “to license,” ex m termini, import a grant of authority to exact the payment of money as the consideration for granting the license.
    The authorities clearly establish a distinction between a license fee and a tax: — City of Boston v. Schaffer, 9 Pick. 415; City of Cincinnati v. Buckingham, 10 Ohio, 251; Same v. Bryson, 15 Ohio, 625; Smith v. City of Madison, 7 Ind. 86; Merriam v. New Orleans, 14 La. An. 318.
    Although in some of the cases just cited the right to exact a license fee for the exercise of particular employments which occasion expense to the city, is placed upon the ground that the persons engaged in such employments should compensate the city for such expenses, we submit that the power rests upon a broader ground. As in the case of Cincinnati v. Buckingham, an ordinance which requires draymen and hackmen to pay a license fee, may be upheld upon the ground that persons exercising such employments should contribute to the expense of keeping streets in repair, etc. But there are various cases where the exercise of a particular employment occasions no expense to the city, but where the demand of a license fee may be justified under the general power to regulate, because such a requirement is a method of regulation. Thus, as in the case of Boston v. Schaffer, a license fee may be required of proprietors of theatrical entertainments, which are the occasion of no expense to the city, because the exaction of money may be adopted by the city authorities as a means of regulating employments which may become injurious to public morals, and which, therefore, under a general power to regulate, may be wholly prohibited, or permitted under restraints and conditions. And so, in the case at bar, the payment of a license fee by keepers of private markets is made a condition of the exercise of an employment which the Council have express power to regulate, not only in the public markets, but elsewhere; and this requirement of a fee is adopted as a means of regulation.
    If this construction of the power given by the charter is correct, it is not restricted, in respect to the amount of the fee to be exacted, to the mere expense of issuing the license. Unquestionably the license fee demanded must not be unreasonable, but its amount is a matter of discretion with the Council.
   Martin Ch. J.:

The charter of the city of Detroit empowers the Common Council to erect and maintain market houses, establish markets and market places, &c., and to provide fully for the good government and regulation thereof; and to license and regulate butchers and the keepers of shops, stalls, booths or stands at markets or any other place in the city, for the sale of any kind of meats, fish, poultry, &c.; and to authorize the Mayor to grant such license, &c., and to prescribe the sum of money to be paid, there-' for into the city treasury. The city has established a market, and an ordinance exists prohibiting persons from keeping a meat shop or stand outside such market without a license from the Mayor, and upon terms of paying into the city treasury five dollars, and executing a bond conditioned that they will faithfully observe the provisions of the ordinance.

Ash keeps a meat shop outside the market, without a license; and alleges and insists that he has a right to do so, upon the ground that the ordinance is unconstitutional: 1st: In requiring" a license fee from persons selling meats outside the market, and 2nd: In requiring a fee beyond the sum necessary to defray the expense of making and registering the license, and which it is claimed is in fact a tax.

The power to license and regulate the vending of meats and vegetables is not denied, nor its necessity questioned. The health of the city demands that it should exist. If the power to regulate exists, then the city has the power to prescribe the limits within which the trade or calling shall be carried on without license. If carried on elsewhere the city may require the license and bond, for protection and regulation; and may require such reasonable fee as will compensate either partially or fully for the additional expense of inspection and regulation thereby incurred. The market being under the immediate supervision of the city officers, no extraordinary expenses need be incurred, and if there were, the rent of the stalls is considered a compensation. An ordinance of this kind does not in fact operate unequally, and is not against common right or in restraint of trade.

Nor is this exaction of five dollars a tax. It is but a reasonable compensation which the city demands from those who will not sell in the public market, for the additional labor of officers, and expense thereby imposed. If it be conceded that the city may demand a sum sufficient to defray the expense of making out the license, it is difficult to conceive why it may not also demand enough to pay all the expense attending the supervision of the trade at the place licensed. As w-e regard the sum exacted as a reasonable fee for the indemnity of the city, and not as in any sense a tax, we do not deem it expedient to discuss the further question of the extent of the power of the city to exact license fees, or the limits of suoh power.

The judgment must be affirmed.

Manning and Christiancy JJ. concurred.

Campbell J.

dissenting.

I have been inclined to arrive at the same conclusion as my brethren, as the city regulation is a very reasonable one. But upon the authorities I am satisfied it is an exercise of the taxing power, which can not under our Constitution be exercised by such specific charges.

Judgment affirmed.


author: Campbell J.: Martin Ch. J.:

text:
    Oliver M. Hyde v. William A. Nelson.
    A defendant in attachment by appearing and pleading to tlie action, does not preclude bimself from taking proceedings before a Circuit Court Commissioner for the dissolution of the attachment.
    An attachment having been issued on an affidavit that defendant was about to remove his property from the State with intent to defraud his creditors, defendant took proceedings before a Circuit Court Commissioner for its dissolution. On the hearing before the Commissioner, the defendant testified that when the attachment was served he did not know that he was owing any one. This evidence was given with a disclaimer of any intent to raise the question of an indebtedness to the plaintiff in this proceeding. It was held that the evidence was proper as bearing on the question of fraudulent intent.

      On certiorari, only questions of law are open, and the Court can not weigh the evidence to determine whether questions of fact have "been correctly decided. It is only where there is an entire absence of proof on some material fact found, that such finding becomes erroneous as a matter of law: — Cicotte v. Morse, 8 Mich. 424; Jackson v. People, 9 Mich. 111; Berry v. Lowe, 10 Mich. 9.

      Heard May 26th.

      Decided May 30th.

    Certiorari to F. B. Porter, Esq., Circuit Court Commissioner for Wayne county, who had made an order dissolving an attachment issued in Hyde’s favor against Nelson, from the Wayne Circuit Court.

      C. P. Crosby, for plaintiff in error,
    argued that after appearance in the action and plea to the merits, defendant was too late to move to dissolve the attachment. Appearance and plea operated as a waiver of all prior defects in the proceedings not going to the jurisdiction: — Drake on Attachments, 379; 5 Mo. 544; 13 Mo. 547; 31 Ala. 659; 17 Miss. 345; 3 Ala. 43; 2 Green (Iowa) 467; Buckley v. Lowry, 2 Mich. 418; Galloway v. Holmes, 1 Doug. Mich. 350; Greenvault v. F. & M. Bank, 2 Doug. Mich. 502; Crane v. Hardy, 1 Mich. 56; Stewart v. Hill, 1 Mich. 265; 1 Ind. 121; 1 Gilm. 35; 25 Ala. 534. The writ of attachment is an entirety, and if the Commissioner’s order dissolving it is correct, the suit is out of court. There is no practical difference between the setting aside of an attachment for formal defects in the affidavit, and the dissolution of the writ by a commissioner upon the ground that the plaintiff had not a sufficient cause for suing it out. In either case the suit is at an end: — Green's Pr. 69; 1 Doug. Mich. 502.
    The Commissioner erred in allowing Nelson to testify that he was not indebted to Hyde. The indebtedness is not in issue, and must be regarded for the purpose of the proceeding as admitted.
    The evidence returned by the Commissioner shows a sufficient cause for suing out the writ.

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

A motion was made before 'a Circuit Court Commissioner to dissolve an attachment, which upon hearing of proof was granted. It is now alleged on certiorari that the order dissolving the attachment was erroneous.

The suit was at issue in the Circuit Court; and it is claimed that no application can be made to dissolve an attachment after appearance.

The statute authorizing these applications does not limit the time when they may be made. It declares that in all cases where the writ has been issued and served, it shall be lawful for any defendant, whose property may be attached, to apply for a dissolution of the attachment. When the writ issues the object of making the attachment is not merely to bring the defendant into court, but also to retain the property that it may be ready to be applied on any judgment which may be obtained. The defendant can only be held liable to a personal judgment, binding in all respects, when he has been personally served or shall appear. And in such case the suit proceeds as if he had been summoned: — Comp. JL. §4763.

A creditor has no right to pursue a resident debtor found within the State by anything except a personal service of process or declaration, unless the debtor has been guilty of some one of the wrongful and fraudulent acts set forth in the statute. If he has not committed any of these the creditor ought not justly to obtain any specific lien in advance of his judgment. The writ of attachment issues on mere information and belief of these charges, and if at any time before judgment the defendant upon a hearing on that subject is not found to have been guilty of them, the plaintiff, if the writ has been served, or if there has been an appearance, can still recover such judgment as. he would have done had he commenced his action in the usual way. - It was ] held in Paddock v. Mathews, 3 Mich. 18, that the object of the application to dissolve an attachment under the statute is merely to release the property, although if done before appearance, it will, unless otherwise ordered, carry the suit with it — a result which could not follow after an appearance. If the attachment is dissolved before appearance, the only ground on which a defendant could have been properly served originally is removed, and it would be improper to give the plaintiff any right of compulsion, unless where the Commissioner sees fit to order it. The term “ attachment” is evidently used in this statute in its common law sense of a levy or seizure, and not to designate the writ under which the seizure is made. There is no good reason why the debtor should not be entitled to this privilege at any time before judgment. The plaintiff’s claim to a personal judgment is in no way affected by it after appearance, and, as already stated, a personal judgment is all that he should have, unless the defendant, if resident, has been guilty of fraud. The power of dissolving' attachments improvidently issued upon motion or other interlocutory application has been exercised at different stages of the cause, in several States, and it is only where the question is required to be made by plea in abatement that it can be inappropriate in any stage, unless under provisions very different from any thing in our statute. See Chap. 15, Drake on Attachments, where several cases are collected in the notes. After judgment there would be no propriety in such a motion, because the property is then liable to an ordinary execution.

We are of opinion the application was not made too late.

The defendant was allowed to show ■ by his own testimony, that when the attachment was served he did not know he was owing any one. It is claimed that this testimony was improper as going to disprove 'the plaintiff’s case on the merits, and not merely on the collateral issue. It was put in under an express disclaimer of any such intent, and defendant claimed no weight for it for any such purpose. It was neither offered nor received as bearing on the merits. The question under consideration was only whether Nelson was about to remove his property with intent to defraud his creditors. If he honestly believed he had no creditors he could not very well have entertained any design to defraud them, and his belief on the subject was very important. The intent is the very thing in controversy, and may be proved by direct testimony as fairly as by circumstantial evidence. The credit to be given to the statement is to be determined by the Commissioner who saw and heard the witness testify. We think the evidence bore directly upon the collateral issue of .the intent, and that there is no reason for regarding the merits of the cause as having been inquired into before the Commissioner.

We are not at liberty upon certiorari to inquire into the facts of the case as presented by the proofs. There was testimony on both sides bearing upon the issue made on the petition. We can not therefore review the Commissioner’s finding on mere questions of fact. It is only when there is an entire absence of proof upon some material fact found, that such finding becomes erroneous as a matter of law: — Cicotte v. Morse, 8 Mich. 424; Jackson v. The People, 9 Mich. 111; Berry v. Lowe, 10 Mich. 9.

The order must be affirmed.

Manning and Christiancy JJ. concurred.

Martin Ch. J.:

I do not concur with my brethren, as I think that after a general appearance and plea, the Circuit Court Commissioner can have no jurisdiction over the person or property of the defendant.

Order affirmed.


author: Manning J.:

text:
    Catharine McKee v. Henry Wilcox and another.
    A homestead may be claimed in land of which a party is in possession under a contract to purchase.
    In such a case the vendee, if a married man, can not alienate his interest in the land under the contract without his wife joining with him; and if he refuses or neglects to perform his contract, the wife may perform it for him.
    Accordingly where a married man, who was in possession of land not exceeding in quantity and value what is exempt from execution as a homestead, under a contract to purchase the same, surrendered and cancelled his contract of purchase without the assent of his wife, it was held that such surrender was invalid, and that the wife might file a bill in equity in her own name, and have a specific performance of the contract.
    The decree in such a case should be that the land be conveyed to the husband, but subject to a lien in favor of the wife for the amount she pays in fulfilling the contract.
    It is the duty of one who purchases land in the possession of a third person to inquire of him what claim he makes to the premises. And failing to do this, he takes the land subject to the equities of the person so in possession.

      Heard May 27th.

      Decided May 30th.

    Appeal in Chancery from St. Clair Circuit.
    Complainant filed her bill against Henry Wilcox and Asa D. Dickinson, for the specific performance of a contract made by said Henry Wilcox, to sell and convey to Frederick McKee, complainant’s husband, a city lot in Port Huron. The contract was made January 3, 1856, and was for a consideration of $800, of which $200 was to be paid down and [the ballance in three annual payments. The bill alleged that said Frederick and complainant took possession of the land soon after the making of the contract, and occupied the same until November, 1859, when said Frederick surrendered the contract to Wilcox and left the State. Complainant has occupied the lot ever since. While said Frederick occupied the lot, he claimed it as a homestead, its value not exceeding $1000. The surrender of the contract was without the assent of complainant. Wilcox has since conveyed the lot to Dickinson, who took with, knowledge of the facts. The bill claims that only about $100 is due on the contract, on paying which, complainant asks a decree for the conveyance of the lot to her in her own right, or to her husband.
    Wilcox answered, alleging a consideration for the surrender of the contract by McKee. Dickinson also answered, claiming to be purchaser in good faith from Wilcox, and stating that “ at the time of said conveyance this defendant was wholly ignorant that any one beside the said Wilcox had or pretended to have any claim or interest in said premises, except that he was informed that a woman was occupying the house, and that proceedings ought forthwith to be instituted to put her out of possession, for the reason that she would pay no rent; and notice to quit was served upon her some time in the month of March, 1860.”
    The Court below dismissed the .bill, with costs, and complainant appealed.

      D. C. Holbrook, for complainant:
    Land held under a contract to purchase is subject to descent as real estate: — Wing v. McDowell, Wal. Ch. 175; House v. Dexter, 9 Mich. 246. It is of course subject- to dower ; then why can it not be claimed as a homestead by the family?
    In 13 Wis. 478, it is decided that one who occupies lands bought of the State and paid for, but of which no deed has yet been given, can not sell or assign his contract without his wife’s assent.

      Conger & Harris and W. T. Mitchell, for defendants:
    The interest of a vendee under a contract to purchase is a mere chattel interest not subject to execution before full payment: — Bogert v. Perry, 1 Johns. Ch. 52; 17 Johns. 350. The vendee is a mere tenant at will; and estates at will are not liable to execution: — Comp. L. §2589. We insist, therefore, that his claim was subject to his entire and absolute control, without the consent or concurrence of the wife; and that by no act of his or hers could it be made an exempt homestead.
    If this view is correct, then the statute — Comp. JO. § 3294 — authorizing the wife to bring an action in her own name for certain property sold or encumbered by the husband without her assent, does not apply to this case'. Besides, the word action, as used in the statute, is only intended to apply to suits at law, and can not be applied to the enforcing the equitable remedies of the husband.
    While we concede that exemption statutes are usually construed liberally, we insist that a construction of the homestead exemption law so as to embrace lands held under contract, and to prevent the vendee from controlling the contract, would be such an extension of the meaning of the statute as to violate all rules of reasonable construction.
   Manning J.:

The only question in this case is whether a homestead can be claimed in land of which a party is in possession under a contract to purchase,

The Constitution in giving a homestead as a right does not confine it to any particular estate or interest whatever in the land: — Art. 16, §2 — and the statute secures it to a person owning and occupying a house on land not his own: — Comp. L. §4500.

In Dye v. Mann, 10 Mich. 298, in speaking of the constitutional provision we say, the Constitution, whatever may have been the intention of the pre-existing statute, we have no doubt was intended to secure against creditors a homestead to every family in the State. Not as a personal privilege of the debtor which to be made effectual would have to be ..claimed by him, placing him in an attitude to have his motive suspected, but as an absolute right necessary to the welfare of the household, of which the debtor should not be deprived, if an unmarried man, without some act of Ms relinquishing Ms right, or, if a married man, without the joint conveyance of himself and wife.

If this view of the Constitution be correct, it is as incumbent on a court of equity as a court of law to give it effect when it can do so consistently with the well recognized principles upon which the court acts.

Equity sometimes to promote the ends of justice considers that as done which the parties have agreed to do. Where a party is in possession of land under a contract to purchase, it treats the vendor as a trustee of the title to the land for the vendee, and the latter as a trustee of the purchase money for the vendor, and following the law gives the same effect to the equitable estate thus erected that the law gives to the legal estate. Hence the vendee’s equitable estate on his death, in equity, goes to his heirs or devisees.

By a parity of reasoning, equity will protect it against the alienation of the husband without the wife joining with him, when the land is in the occupation of 'the husband as a homestead; and the wife of a husband who refuses or neglects to perform his contract, should be permitted to do it for him to save her interest in the homestead; as she may redeem a mortgage to save her right of dower in an equity of redemption. The Court, instead of dismissing the bill, should have directed a reference to ascertain the amount due on the contract, and decreed, on the payment thereof by complainant, a conveyance of the land to the husband subject to a lien, to be stated in the deed, to complainant, to the amount so paid by her.

Dickinson is not a bona fide purchaser without notice of the legal estate from Wilcox. He admits in his answer that, when he purchased, he was informed that a woman was occupying the house, and that proceedings ought to be instituted to put her out of possession. This woman was complainant; and it was his duty to have inquired of her what claim she made to the premises: not having done so he took them subject to her equity.

Decree reversed, with costs, and cause remitted to the Court below for further proceedings.

The other Justices concurred.


author:
Christiancy J.:
      Campbell J.:

text:
    The People on the relation of Michael Hayes v. George Bates.
    .An elector is not to be deprived of his vote, either by the mistake or fraud of the inspector in depositing it in the wrong box, if the intention of the voter can be ascertained with reasonable certainty.
    Nor should ballots be rejected because of being put in the wrong box by the honest mistake of the voters themselves.
    "Where, therefore, a city and state election were both held at the same time, under the charge of the same inspectors, and seven ballots for city officers were found at the closing of the poll in the state box, and the circumstances of the case made it reasonably certain that these ballots were in good faith .put in by electors who did not put in other ballots for city officers at the ■same election, it was held that they were properly counted by the inspectors.

      Heard May 19th.

      Decided May 30th.
    Quo warranto.
    The following are the admitted facts in this case:
    At an election held ha the city of Detroit on the first Tuesday after the first Monday in November, 1862, Michael Hayes and George Bates were opposing candidates for the office of Overseer of Highways in and for the first ward of the city. On the same day a general election for state and county officers was held in said ward, and the same polls were used in, and the same inspectors presided over both elections, but there were separate clerks for each election, and two separate and distinct boxes provided at said polls, one for receiving ballots for state and county officers, and the other* for city and ward officers. After closing the polls and upon counting the ballots by the inspectors of election, it appeared that of the ballots deposited in the said box for city and ward officers three hundred and five were for said Michael Iiayes, and two hundred and ninety-eight were for said George Bates, for said office of Overseer of Highways; that the.total number of ballots for ward and city officers in said box was six hundred and three; that in said box were found ten ballots for state and county officers, and that the total number of names and voters on the poll list of voters who had deposited ballots in the city box was six hundred and thirteen. Hpon examining the -box kept at said polls for ballots for state and county officers, the inspectors' found that the total number of ballots in said box was one less .than the total number of names of voters on the state and county poll list of voters who had deposited their ballots, and they found in said last mentioned box seven ballots for city and ward officers, all bearing the name of George Bates for Overseer of Highways in and for said ward; which the inspectors added to the ballots originally deposited in the city and ward box, and counted them as ballots regularly cast for said Bates, whereby a tie was produced between said Bates and said Hayes for said office. After adding said seven votes as aforesaid, the number of ballots for city and ward officers, including said office of Overseer of Highways, was three less than the number of names on the city poll list; and thereupon said inspectors did certify and return to the clerk of said city of Detroit that the said Michael Hayes and the said George Bates had each received three hundred and five votes at said election for said office.
    Afterwards, in pursuance of the charter of the city of Detroit, providing for dases “ where two or more shall receive an equal number of votes for the same office,” lots were drawn by the proper city officers to determine whether said Hayes or said Bates should be Overseer of Highways for said ward, and the said Bates was elected by the drawing of said lot, and entered upon the office of Overseer of Highways for said ward. The said drawing and the entrance into office by said Bates were regular and legal, provided that the tie votes produced by counting said seven ballots was legal.

      G. V. N. Lothrop and J. L. Chipman, for the relator.

      Maynard & Meddaugh, for defendant.
   Christiancy J.:

The only question in this case is whether the seven ballots for city officers found in the state and county box, having the name of the respondent upon them, were properly counted for him by the inspectors.

The two elections, though held upon the same day, were in law distinct and independent of each other, as much as if they happened on different days: and it is, in fact, only in each alternate year that they can occur together. But, though thus distinct, and the ballots to be deposited in separate boxes, yet as both were held together under the supervision of the same inspectors, with both boxes before them for the reception of ballots, the inspector receiving the ballot might be liable, by honest mistake, occasionally to deposit a ballot in the wrong box: and, if he understood that the ballots found in the wrong box were in no case to be counted, he might do the same thing- for a fraudulent purpose. But the elector is not to be deprived of his vote either by the mistake or fraud of the inspector in depositing it in the wrong box, if the intention of the voter can be ascertained with reasonable certainty. To hold otherwise would be to give more effect to the letter than to the manifest purpose of the statute. And if, in consequence of an error thus caused, the intention of the voters could not be ascertained with the requisite certainty, the election would probably be held void as to all the officers whose election might be affected by the ballots thus misplaced.

Nor do I think the ballots in question should be rejected, though they might have got into the wrong box 'by the honest mistake of the voters themselves, if their bona fide intention to vote these ballots for city officers can be ascertained with reasonable certainty; unless indeed there should be reasonable ground for believing that, by a similar mistake, they or some of them may have' put another city ballot into the city box at the same election. There can be no ground for supposing a mistake of the latter kind in this case, since, if this had been so, the city ballots found in the two boxes must together have exceeded the number of electors voting at' the city election, as shown by the poll lists of that election; whereas, when all were counted, they fell three short of the number shown by the poll lists.

There were found in the city box six hundred and thirteen ballots, and this agreed with the number voting at the city election, as shown by the poll lists. But, on examination, it was found that ten of these ballots were for state and county officers, leaving only six hundred and three for city officers. The case does not show the whole number of ballots found in the state and county box, but that, on counting them, it was found that the whole number was one less than the number of electors voting at the state and county election, as shown by the poll lists of that election, and that among them were found seven ballots for city officers, all having the name of the respondent upon them for the office in question. By adding these seven to the six hundred and three city ballots found in the city box, the whole number of city ballots found in both boxes was six hundred and ten, or three less than the number required to correspond with the poll list of the city election. Taking out the seven city ballots from the state and county box, the number of state and county ballots in the latter box would be eight less than that of the electors voting at the state and county election, as shown by the poll lists of that election. If we then add the ten state and county ballots found in the city boz, the whole number of the latter will exceed, the number shown by the poll lists of that election by two.

It is plain that the clerks of the city election made no error in keeping the poll lists of persons whose ballots were deposited in that box. But it is equally clear that the clerks of the state and county election did make an error in keeping the lists of that election; as the whole number of ballots in that box was one less than shown by their lists. This might have arisen by the challenge 'and rejection of some vote after the name of the voter had been written down, and their neglect to erase it.

The error of putting the ballots in the wrong box might occur in several different ways: 1st, by the mistake of the voters; 2d, by the mistake of the inspector placing the ballots in the box; Sd, by the fraud of the voters, and, 4th, by the fraud of the inspector. If it occurred by mistake, it is wholly immaterial, whether it was that of the voters in getting the two ballots relating to different elections interchanged, or that of the inspector depositing the ballots in the box, so that the intention of the voters can be ascertained with reasonable certainty. If it be admitted that the error occurred by mistake, had the number of city ballots found in the state and county box corresponded with the number of state and county ballots found in the city box, no doubt could well have been entertained of the real intention of the voters, to vote both species of ballots, and that the ballots had been interchanged by them or the inspector before they got into the boxes. I think the intention of the voters who voted the seven city ballots in question is equally as clear as if there had been ten of them, so as to correspond with the number of state and county votes in the city box. But had these seven ballots, when added to the city ballots found in the city box, exceeded the number shown by the poll lists of the city election, the conclusion would have been different. And in the' present case the result might- be different with the state and county ballots found in the city box, since, when added to those of the same character found in the proper box, the number exceeded that of the poll lists. If we undertake to account for the error on the hypothesis of fraud, the question will be whether it was the fraud of the voters, or of the inspector depositing the ballots ? If the fraud of the voters, the ballots should not be counted; if that of the inspector, they should.

If these seven electors undertook to commit a fraud- of this kind, it could only have, been done with the belief on their part that their votes would be counted, though found in the wrong box; and they could have accomplished the fraud only by handing in two city ballots, representing to the inspector that one of them was a state and county ballot. But, had this been done, the error must have been exposed by the poll list of the city election, since the aggregate number of city ballots found in both boxes must exceed the number of city electors shown by the poll lists of that election. The hypothesis of fraud on the part of the voters is therefore inadmissible so far as it relates to the seven city ballots in question; though it might explain two of the state and county votes found in the city box and which were in excess of the number shown by the poll lists of the state and county election. If the error was caused by the fraud of the inspector, in placing the ballots in the wrong box, he must have acted upon the belief that the ballots thus misplaced would be rejected; and, if such were the rule, he might deprive the elector of his vote at both elections, by placing each of the ballots in the wrong box; and this he might do without the possibility of detection, unless observed in the act of performing the operation; as the error caused by this interchange of ballots would not be made apparent by the poll lists, and it would be impossible to determine whether it was the mistake of the voter or his own mistake or fraud.

Iii the absence of all evidence of fraud it is doubtless more in accordance with sound principle to account for the error on the theory of mistake than that of fraud; and the ordinary presumption that a public officer has jierformed his duty would lead us to the same conclusion, unless there is something in the circumstances of the case tending to counteract the presumption. We have already seen that the error can not be accounted for or any probable hypothesis of fraud in the voters. But there is one circumstance which, though perhaps oil little weight, yet may be said to have some slight tendency to weaken the theory of mistake, and to excite suspicion of fraud in the inspector who placed the ballots in the box. Without counting the seven disputed ballots, the votes for the two candidates were nearly equal in numbers. Had the error occurred through mistake, there would have been a strong-probability that some of these misplaced ballots would have been for one of the candidates and some for the other; but all of them found in the wrong box were for the respondent. This result, though as possible as any other, could not, a priori, upon any rule of the calculation of chances, be said to be as probable, when there were so many chances against it to one in Its favor. But I do not place my conclusion in this case upon this ground. It is sufficient to justify the counting of these votes if the error occurred either by the mistake of the voters or the mistake or fraud of the inspector — and, that it occurred in some of these ways and not from the fraud of the voters, I am entirely satisfied; and I think it reasonably certain that these seven ballots were, in good faith, put in by electors who did not put in another ballot for city officers at the same election. I think, therefore, the respondent has sufficiently shown his title to the office, and that the relator has failed to show his.

Martin Ch. J. and Manning- J. concurred.

Campbell J.:

It appears from the agreed facts that in the city ballot box there were ten ballots for county officers, and in the county box seven for city officers, and that the ballots in the latter box fell one short of the poll list. As the number of votes cast in the city box tallied exactly with the poll list, it is perfectly evident that three county votes were cast into the city box which had no equivalent in the other; and that these three votes must have been handed in to the inspector by the voters themselves as representing city ballots. Of course they can not be counted for either office. But the fact that such an occurrence has happened either by the design or mistake of three voters, and that it is impossible by any means to ascertain who they were, illustrates to my mind the necessity of adhering to the rule of counting only such ballots as are cast into the proper ballot box, without attempting to correct what can only be supposed to be an error, by means purely conjectural.

If a person should hand to the insjiector a legal ballot, and that officer, instead of placing it in the box, should secretly destroy it, the absence of that ticket from the box would in no wise affect the election. The law must presume — at least until shown otherwise by something tangible and definite — that the officers in charge of an election do their duty, without mistake as well as without fraud. It is quite probable that in the case before us there was an interchange among a portion of the tickets. But, as the numbers disagree, it is entirely uncertain whether the seven tickets wrongly found in one box were placed there by the same voters who put seven of the other ten erroneous ballots into the other box. Such may be the probability, but it is a probability of conjecture and not of proof. It is quite as likely, assuming the whole to be errors, that the voters made the mistake, as that the inspector did; and to my mind, although I place no value on the question — such is more likely to have been the. case. I do not think a voter’s mistake could be legally rectified. He may put in a ballot for a city office supposing it to be a state office. He may also, as happens not unfrequently, vote for one man, supposing he is" voting for another. It is Ms duty to know what vote he puts in, and where it is put. If he does not know it when the vote is put in, he certainly can never know it or prove it afterwards, unless he should happen to be the solitary voter for some ticket or candidate.

There is no proof before us (and probably could be no proof) which shows that any one of the possible ways of adjusting the difficulty is correct, to the exclusion of the rest. I think that the only safe course in any case is to count no ballots not found in the proper ballot box.

I think, therefore, that judgment of ouster sholud be entered against respondent, and that the relator should be adjudged lawfully elected.

Judgment for respondent.