text:
    Philo H. Crippen v. John H. Morrison and Others.

      Who entitled to fixtures, as between a mortgagee thereof and a prior mortgagee of the land. — H. mortgaged his land, to secure the payment of money borrowed» upon his verbal agreement to erect a steam saw mill on tlie premises. Subsequently tlie plaintiffs constructed and set np in said mill a steam engine and appurtenances; it being agreed, at the time they were contracted for, that H. should secure the purchase money by a mortgage upon them, and also by a mortgage upon said land, and that until said mortgages were executed, the engine, etc., shonld remain the property of the plaintiffs. IT. executed the mortgages, pursuant to said agreement, and they were duly filed and recorded, and kept alive until this suit was commenced. The first mortgagee brought his bill for foreclosure, making the plaintiffs parties thereto, and the usual decree was made, and the land sold under it to the defendant in this suit, to whom, previous to such sale, all the interest of said first mortgagee had been sold, with notice that it did not embrace the machinery; — Held} That the plaintiffs were entitled to recover the value-of said opgine, etc., of the defendant, who, upon demand made, had refused to deliver them up ; —

      Heidi ateo, That the machinery not having been put up when the original mortgage upon the land was given, and the defendant having notice at the time of the assignment to him, that the machinery was not embraced in it, he was not, as against the plaintiffs, a bona Jidc purchaser.
    Whether, if defendant had heen a bona fide purchaser, it would have been otherwise: Quere.

      Rights of mortgagor before foreclosure. — A mortgagor, since the statute — 2 Comp. X., §4614 — forbidding possessory actions against him until actual foreclosure, is in possession by right, and not by sufferance, and may make such arrangements for the use of the proporty as any other person could during' his term.

      Decree in ordinary foreclosure suits. — How it effects fixtures. — The plaintiffs having a mortgage on the real estate were, on that ground, proper parties to the foreclosure suit, and it not appearing that the bill in that case was filed for any other purpose than a simple foreclosure* nor that the decree differed from the usual form in such cases; — Held, That said decree was-not a bar to plaintiffs’ claim to said fixtures.

      Heard April 7 and 8.

      Decided October 27.
    Error to Branch Circuit.
    Trover for steam engine, etc.
    The case was tried by the Court, who found the facts, and rendered judgment upon -the finding for the plaintiffs.
    The facts are sufficiently stated in the opinion of the Court.

      Newberry db Pond, for plaintiffs in error:
    I. The nature .of the property in controversy, the circumstances under, and the manner in which the same was attached to the freehold, are such as to constitute it, as. between vendor and' vendee, and hence between mortgagor and mortgagee of the freehold, a fixture within the overwhelming weight of authorities. — 2 Smith's leading cases, (edition 1852,) 214, 15, 221; Walmsley, et al., v. Milne, 8 Law Reg., 373; Winslow v. Merchants' Ins. Co., 4 Met., 306; Powell v. the M. & B. Manf'g Co., 3 Mason, 459; Roberts v. the Dauphin, Dep. Bank, 19 Penn., 71; Narran v. Stackpole, 6 Greenleaf 154; Sparks, et al., v.

      State Bank, 7 Blk’f, 469; Walker v. Sherman, 20 Wend., 644; Morgan v. Arthurs, et al., 2 Watts., 140; Oves v. Ogelsby, 7 Watts., 106; House v. House, 10 Paige, 158; Harkness v. Sears, et al., 26 Ala., 493; Allison v. McCune, 15 Ohio, 729; Rice v. Adams, 4 Har., 332; Hill v. Wentworth, 28 Vi., 428.
    And as between mortgagor and mortgagee, although, attached to the freehold, subsequently to the execution of the mortgage.' — 2 Smith’s leading cases, (edition 1855,) 254; Winslow v. Merchants' Ins. Co., 4 Met., 306; Walmsley v. Milne, 8, Law Reg., 373; also, other cases above cited.
    II. The agreement between Hall, the owner of the equity of redemption of the freehold, and defendants in, error, under which said engine was attached to the free>hold, did not and could not operate to prevent or save the same from becoming a fixture, and part of the freehold, as to the said prior mortgage' and those claiming under it.
    1. Upon Principle. — For nothing is more self-evident, than that no man can grant to another that (either property or right,) which he does not himself possess.
    H. Upon Authority. — 1. Authorities directly in point: Frankland, et al., v. Moulton, 5. Wis., 16; Richardson v. Copeland, 6 Gray, 536; Preston v. Briggs, 16 Vt., 124.
    2. Authorities in point by analogy: a. Holding that if one having a lien upon a chattel (such as a steam engine,) permits it to be attached to a freehold which is subject to a mortgage, he loses his lien as against such mortgage. — Jones v. Hancock, 1 Md. Ch. Dec., 187; McKim v. Mason, et al., 3 Md. Ch. Dec. 186; Denmead v. Bank of Baltimore, 9 Md., 179; Lyle v. Ducomb, 5 Binney, 585; Dutro v. Wilson, 24 Ohio, 101. b. Holding that a mortgagee of the freehold, upon entering into possession under a foreclosure of his mortgage, is entitled to the growing crops. — 1 Hilliard on Mortgages, 161, note c;

      Lane v. King, 8 Wend., 584; Shepard v. Philbrick, 2 Denio., 174; Gillet v. Balcom, 6 Barb.
      Ch., 270; Jones v. Thomas, 8 Blkf., 428. And. this, too, as against a lessee of the mortgagor. — Lane v. King, supra; Jones v. Thomas, supra. c. Holding that a mortgagee of a freehold, or a purchaser -of the jueniises under a foreclosure, cannot claim the benefit of, and is not bound by any contract made by the mortgagor relative to the mortgaged premises.— Thompson v. Sommerville, 16 Barb., 469.
    The statute — Comp. Laws, §4614 — forbidding ejectment by a mortgagee for the mortgaged j>remises .until after foreclosure, was not intended to, and has not “ altered the law as to the interest vested in the parties to the mortgage.” It has merely affected the remedy. — Phyfe v. Riley, 15 Wend., 248; Gillett v. Eeton, 6 Wis., 30; Tollman v. Ely, 6 Wis., 244; Jones v. Thomas, 8 Blkf., 431.
    HI. If defendants in error ever had any right as against the said prior mortgage of the freehold to remove said engine from said mortgaged premises, they were bound to - exercise such right before possession was taken by plaintiff in error, as purchaser under the foreclosure of said mortgage. And having failed to do so, said engine became the property of the plaintiff in error. - Taylor's Landlord and Tenant, §§ 551, 552, 553; 2 Smith's leading cases, (edition 1855,) 248, 259, 260, 261; Lee v. Risdon, 7 Taunt., 188; Lyde v. Russell, 1 Barn. & Adol., 394; Colegrave v. Dias Santos, 2 Barn. & Cress., 77; Weeton v. Woodcock, 7 M. & Wellsby, 14; Longstaff v. Meagoe, 2 Ad. & Ellis, 167; Raffey v. Henderson, 17 Ad. & Ellis, 573; White v. Arndt, 1 Whart., 91; Powell v. Smith, 2 Watts., 126; Overton v. Williston, 31 Penn., 155; Stockwell v. Marks, 17 Maine, 455.
    IV. Defendants in error having been made parties defendant to the suit to foreclose the mortgage under •which plaintiff in error claims, and the question of their right to said engine being one which might, and ought, to have been there litigated, it is res adjudícala.

    -Defendants in error were, as to their rights in' said engine, if any they had, proper and- necessary parties to said bill. Their interest was not in a chattel, but in the freehold; for the engine, until severed, was a part •of the freehold. Their- interest was merely a right, as against the mortgagor, to sever, it. — Ferrard on Fixtures, and cases cited; Preston v. Briggs, 16 Vt., 124.

      Riley & Shipman, for defendants in error:
    The common law held that whatever was affixed to the soil became a part of the inheritance, and the only exception seems to have been where fixtures were erected by tenants on particular estates, under circumstances which denoted an intention to remove them, during the continuance-of the estate, or at its -termination. — Am. leading cases, nol. 2, p. '746.
    But the limits of this exception have been gradually extended, and even in England, barns and sheds may be erected as personal property, and removed from the land by the person to whom they belong, provided they have been erected in such a manner that they may be taken down without injuring the freehold. — Am. leading cases, vol. 2, p. 746; Wood v. Hewett, 8 Q. B., 913.
    But the American Courts have been disposed to pay less attention to the nature of the structure, or the question whether it is built into, or placed upon the land, and inore to the circumstances tinder which it was erected, .and have repeatedly held that a house, or other , building, will nqt be merged in the land o,n which it stands in consequence of the solidity of its structure, or the connection between it and' its foundations, if the agreement of the parties, and the purposes of justice, require that

      the title to both be kept separate, and that the owner or the house should have the right to enter for the purpose of using it as his own,, or removing it, — Am. leading cases, vol. 2, p. 747.
    This doctrine was propounded at a comparatively early period, in Wells v. Banister, 4 Mass., 514, and has been recognized and applied in a number of subsequent instances, which establish that a house erected on the land of another, in pursuance of an authority given by him, remains the -property of the builder, who may maintain trover for its wrongful asportation or demolition, and he has a right to enter for the purpose of taking it away, which cannot be barred by the prohibition of the owner of the soil, or a revocation of the authority under which it was built. — Am. leading cases, vol. 2, p. 742; Osgood v. Howard, 6 Greenleaf, 452; Barnes v. Barnes, 6 Vt., 388; Doty v. Gorham, 5 Pick., 487; Fletcher v. Com. Ins. Co., 18 Pick., 419; Russell v. Richards, 10 Maine, 429, 11 Maine, 371, 12 Maine, 462.
   Campbell J.:

Defendants in error brought an action of trover for the conversion of a steam engine and its appurtenances, which they claimed under the following circumstances; Francis A. Hall mortgaged certain lands in Batavia, Branch County, amounting to 572 acres, to one Hiscock, October 22, 1856, for $4,000 ; and this money was borrowed under a verbal agreement that Hall should erect a saw mill on the premises. On the same day, Hall contracted with defendants in error to build and put up the engine in question, ho agreeing to put up a suitable mill frame and engine-house to receive it, and upon its acceptance to execute back a chattel mortgage on the engine, and a mortgage upon the land, which was already subject to the Hiscock mortgage. It was expressly agreed that the engine and appurtenances should continue to be the property of defendants in error, until they should receive the mortgage securities on the chattels, and on the real estate. On April 15, 185 V, these securities were delivered, the machinery having been .accepted. They were properly filed and recorded, and kept alive till suit. October 10, 1857, Hiscock commenced a foreclosure suit, making defendants in error parties with the other persons interested in the land. A decree was obtained December 81, 1858, for the amount of $820, then due; nnd June 25, 1860, a further decree was . obtained for installments subsequent to the first decree. Before the first decree, and in October, 1857, about two weeks after the foreclosure suit was commenced, Hiscock assigned $3,860.44 of the mortgage money to one William P. Morley, who was not a party to the bill. August 24, 1858, and before any decree, Morley assigned to Crippen, (the defendant below, and plaintiff in error,) informing Crippen that he had no interest in the machinery. December 31, 1859, Hiscock assigned the remaining interest -in the mortgage to Crippen. Prior to July 26, 1858, and before Crippen obtained any interest in the mortgage, the machinery was taken down, and stored in the mill building. One Laman then became owner of the property and machinery mortgaged, and, in Crippen’s presence, promised to pay the Hiscock mortgage, and the- claim of .defendants in error. Laman subsequently put up the machinery again in the mill. October 4, 1860, Crippen bid in the lands on the foreclosure sale, and the sale was confirmed October 30th. He took ■possession of everything, and subsequently took down the machinery, using a part in another mill, and storing the rest. In November, 1860, a demand was made for the machinery by defendants in error, at the mill. In February, 1861, a further demand was made at Crippen’s barn, where some of the property was then stored. He made no reply whatever to either demand. The Circuit Court gave judgment against Crippen for a conversion..

The rules which apply to personal property after it has been put to any use in connection with land, are not uniformly agreed on, and any attempt to harmonize all the authorities would be idle. We must, in all these cases, adopt such conclusions as appear most in accordance with the general doctrines of the law.

At the Common Law, personal property, as a general rule, never lost its identity in realty, unless so closely incorporated with it that it could not be separated without injury to the freehold. And even under the peculiar preference given by the English law to trade over agricultural improvements, buildings erected for farming uses,, although resting upon foundations of masonry, were not considered as real estate as against the tenant, if capable of being removed without injury. In Wansbrough v. Maton, 4 Ad. & El., 884, it was held expressly that a barn resting upon a masonry foundation, and capable of removal, was no part of the freehold, and was therefore, in all'* respects, the chattel of the tenant who built it. This case is based upon a former decision in Rex v. Otley, 1 B. & Ad., 161, where the question did not arise between landlord and tenant, but was decided upon the nature of the property itself. There a person owning land upon which was a windmill, consisting of a wooden mill and its machinery, resting upon, but not fastened to, a brick foundation, leased the land and the mill to a tenant. The rental value of the whole property was thirty pounds, of which more than twenty pounds represented the rent of the mill. It was held that the mill was no part of the realty, and that the tenant could not be regarded, therefore, as holding a tenement of the value of ten pounds.

Li regard to erections made by tenants for purposes of trade or manufacture, an exception was early raised in their favor, allowing them to remove erections made for those purposes, although actually annexed to the freehold in a substantial way. But inasmuch as these erections had, during the tenancy, become actual parts of the freehold, it was usually necessary for the tenant to remove them before restoring the possession to the landlord; as he could not afterwards enter upon and remove that which had become part of the land, although, during his possession, he was not liable for such waste as would arise by such removal of what he had himself erected. If, however, the estate of the tenant was indeterminate, the property in the improvements was not divested by the lapse of the tenancy, and they might be removed afterwards. — Bennett v. Nichols, 12 Mich. R., 22; Ombony v. Jones, 19 N. Y., 234; Taylor, Landl. and Ten., §552; Van Ness v. Pacard, 2 Pet., 137; Penton v. Robart, 2 East R., 88. And in Holmes v. Tremper, 20 J. R., 29, it was held that if a tenant, after his term expired, entered upon the land and removed a cider'mill, although he was liable in "trespass for the entry, he was not liable in replevin for the property, because ' the property was not relinquished by his giving up possession of the land, unless such was his design. A similar rule .was laid down in Lawrence v. Kemp, 1 Duer R., 363.

There can be no dispute but that, in this country and in England, many cases have been decided, (and we are not disposed to question them propriety,) which hold that personal chattels, although severable without material injury to the freehold, may yet pass as realty if apparently suitable and actually designed to be permanently attached to the land. These cases are many of them founded upon the change of business, whereby motive power, which formerly depended on the freehold itself, by the improvement of water privileges, has now become dependent on steam engines, which are personal chattels. The doctrine that held all the machinery of a ■¡water mill to be fixtures was based upon the idea that it was all designed to obtain the beneficial use of the realty. This' principle cannot strictly apply to steam machinery, where everything is really dependent on that which is in its nature personal; and it is not surprising that in seeking to apply old rules to new circumstances, Corn’ts should not have always been consistent. Mills an<^[ factories are generally set up as entireties for the purpose of grinding, sawing and manufacturing; and yet, according to. the current of modern decisions, the ultimate purpose is disregarded; and while the steam engine, which is but an incident to the main purpose, and which is often removed and replaced without disturbing the rest, is presumed to be realty, the looms and other permanent .machinery, for the accommodation of which the building was chiefly erected, are at the same time regarded as mere chattels. Such -an arbitrary rule is unreasonable, and contrary to the general usage of business, and, if allowed to prevail over the actual agreements of parties, would work great injustice.

But we think that, with very few exceptions, the authorities agree that there is no inflexible rule on the subject, and' that every presumption which might arise In the absence of an agreement may be defeated by 'the agreement. In Wood v. Hewett, 8 Q. B., 913, the whole doctrine is put upon an intelligible and sensible basis. In that case, a fender, or water gate, was built in masonry upon the lands of a. party, who removed it, and who was sued in trespass by the proprietor of a mill upon other lands, on the ground that it was his property. The defendant claimed that it was a part of his freehold. Lord Denman said: “ The question is whether, because the fender in this case had been placed on the defendant’s soil, it became his property as a necessary consequence of its position. I am of opinion that such a consequence never follows of necessity where the chattel is separable?'1 * * “ The decision in Mant v. Collins is so far an authority in point of law as it shows that, in a case of this kind, it is always' open to inquiry how the article came to be in the place in which it is found,’ and what the parties intended as to its use; and the respective rights may be determined by the evidence on these points.” * * “ The argument from the nature of the thing decides nothing?’’ Patteson J. said: “ The question does not turn upon any general doctrine of law, but upon the evidence in the case. The general rule .respecting annexations to. the freehold is always open to variation by agreement of parties; and if a chattel of this kind is put up so that the owner can remove it, I do not see why it should necessarily become part of the freehold, or why it should not be removable when the owner thinks fit, if it appear to have been so agreed.” The case of Mant v. Collins decided that a pew door was not of necessity a part of the inheritance. In Waterfall v. Penistone, 37 Eng. L. & Eq., 156, where the owner of a mill mortgaged the mill, and some years afterwards made a second mortgage of the mill and other machinery since put .up in it, to the same person, and subsequently made a transfer of machinery to another person, and became bankrupt, it was held the machinery did not pass by' the real estate mortgages, and the bill of sale being ineffectual for noncompliance with statute regulations, the assignees in bankruptcy took the property as undisposed of. It was machinery put up. for trade purposes by the land-owner, and such as would have been presumed fixtures had not the party shown a' different intent.

In Mot v. Palmer, 1 N. Y. Rep., 564, it was held that rails built into a fence, with the understanding that they might be removed, did not pass to the vendee,' although purchasing' and taking possession without notice. And many cases are cited to show that ownership of the soü by one is not incompatible with ownership of any erection upon it by another. In this case, also, the owner of the rails was allowed to recover against the purchaser of the land for converting them the year after he purchased. There seems to be no limitation concerning the kind of severable chattel which may be owned by one person upon another’s land. See Dame v. Dame, 38 N. H., 429; Lancaster v. Eve, 5 C. B. (N. S.), 717; Duck v. Braddyll, 13 Price, 455; Trappes v. Harter, 2 C. & M., 153; Rogers v. Woodbury, 15 Pick. R., 156; Smith v. Benson, 1 Hill R., 176; Russell v. Richards, 1 Fairf., 431; Van Ness v. Pacard, 2 Pet., 137.

The case of Ford v. Cobb, 20 N. Y., 344, in some of its principal features, resembles the case now before us. Salt kettles, and grates, and arch fronts were purchased to be set up in brick arches, and a chattel mortgage was given back reciting these facts, and was duly recorded. The land was then sold to a purchaser without notice. It was held that the kettles never became realty, and that the chattel mortgage title must prevail. The case of Godard v. Gould, 14 Barb. S. C. R., 662, was entirely similar in principle.

There are cases in some States, particularly in Massachusetts, which are not consistent with these decisions. But when we consider the original common law doctrine, requiring an actual incorporation into the freehold, and the peculiar rules of policy which have since allowed articles which are personal in their nature to be annexed by construction, we think that rule is -the safest which allows personalty to continue as such until changed by design into realty.

So long as a chattel may be removed as such from real estate, and is in a condition to be removed without material injury to the freehold, it is difficult to see by what process the title to it can be divested from its original owner without some sale or transfer, or some acquiescence in the sale or transfer made by- another, under circumstances going to create an estoppel. The. cases in New York hold distinctly that the chattel do’es not. cease to be a chattel, and does not therefore pass to a bona fide purchaser of the land. This is in accordance with the usual rule concerning separate chattels, a bona fide purchaser having no claim against the true owner. Whether this rule should be universal is not material in the case before us, for there has been no bona fide pm-chase, and therefore it is not necessary to express an opinion on it. The machinery was not put up when the original mortgage was given, and Crippen, when he first obtained his assignment from Morley, was informed there was no claim on the machinery. He could not divest himself of the force of this notice.

It is claimed, however,, that, by the rules of law, fixtures made after a mortgage belong to the mortgagee, and that the mortgagor has not such an estate as will authorize any one to make an agreement with him touching the use of the land. Under the English rule, which gives the mortgagee an immediate right of possession, the mortgagor cannot give others a right he does not possess himself; and should he erect improvements which could not be ' severed without injury, they must undoubtedly continue on the premises. Improvements made by him would be presumed to be made for the benefit of the inheritance. But we think those cases which make this presumption absolute, not only as against him, but as against other owners of chattels placing them on the premises, go beyond reason, and divest property without any necessity or propriety, when its nature has not, in fact, been changed. — Waterfall v. Penistone, supra.

Neither do we consider the position of a mortgagor the same now as it was before the statutes forbidding possessory actions against him. Cases have been cited to us which hold that this statute only takes away a remedy,, but leaves the right of possession unimpaired in the mortgagee. With great respect for the tribunals so deciding, we cannot accept this interpretation. It destroys all the value of the provision, if it allows a right of entry against the will of the mortgagor. In Mundy v. Munroe, 1 Mich, R., 68, it was held the •statute was void as to former mortgagees; — a ruling which would have been out of place, had the law not reached something more than a mere remedy. This decision has been affirmed on numerous occasions since. In Baker v. Pierson, 5 Mich. R., 456, it was held by this Court that a prior mortgagee, who, during a foreclosure suit of a subsequent mortgage, obtained possession from the mortgagor, could not retain possession after a sale on that foreclosure. Td this opinion - wo adhere, as in accordance with the statute.

The mortgagor, therefore, until actual foreclosure, is in possession by right, and not by sufferance, and may make such arrangements for the use of the property as any other person could during his term. The machinery never became any part of the realty: Crippen was not misled by appearances, and had no right to dispose of it.

It is also objected that defendants in error are barred of their claims because they were parties to the foreclosure suit. But as they had mortgages on the real estate, they were proper defendants on that ground. We cannot presume the bill in that case was filed for any other purpose than a simple foreclosure. The ordinary allegations of a foreclosure suit would not authorize a decree declaring these chattels to belong to the realty. The decree, under ordinary circumstances, would simply allow the land to be sold, leaving all questions concerning its appurtenances to be disposed of as they should •arise. To determine them in advance would require special averments in the bill. — Wurcherer v. Hewitt, 10, Mich. R., 453.

Judgment should be affirmed, with costs.

Martin Ch. J.:

: "Whatever may be the rule of the common law respecting fixtures, in the absence of any agreement of' parties, it is well settled at this day that the contract of parties will fix • the character, and control the disposition of personal property, which, in the absence of a contract, would be held to be a fixture; in other words,, the parties interested may control the legal effect of any transaction respecting such property by express agreement.. Such was done in the case before us. The property which is the subject of this litigation was only erected "upon the premises upon the agreement that it- should be subject to a chattel mortgage . for its purchase price. By this the parties kept it separate from the realty, and it never became part of it. Such mortgage was given, and kept good up to the bringing of this suit, and all the evidence shows that all the parties through whose hands the property has been transmitted, knew of such original agreement, and of the existence of such mortgage; and, as I think, it shows further, that the land was purchased by all with this property excluded. Crippen certainly never purchased it, for he bought with full knowledge of the property, and the claims of the defendants in error to it. His ownership of the decree does not aid him, for he bought the decree with such knowledge, and could not hold it, or claim under it with any rights superior to those from whom he purchased. His purchase at the sale barely confirmed his-title to the land, as he acquired it by purchase of the. decree — nothing more.

The judgment of the Court below is affirmed, with costs.

Christiancy J. did not sit in this case.


source: Caselaw Access Project

author: Martin Ch. J.

license: Public Domain

text:
    Henry A. Kent and Others v. William B. May and Others.

      Construction of Contract. — The plaintiffs being tbe holders of a promissory note for $1,414.98-100, made by tbe defendants, entered into an agreement with William B. May, by which in consideration of the endorsement to them by May and Cloyes of two promissory notes of Asahel Clapp and Son, as collateral security, and the agreement of said William B. May to pay $553.74-100, according to the terms of his note of that date to one Harris, to be applied on said note of defendants, it was agreed, on their part, that no proceedings should be instituted for the collection of said original note till one of the notes specified in said agreement as “assigned as collateral security” should have been dishonored by non-payment. The two notes of Clapp and Son having been paid, and May’s note for $553.74-100 remaining unpaid, the plaintiffs, to recover the amount of the same, and interest, sued defendants on said original note; — Held, That the payment of the notes of Clapp and Son discharged defendants from liability on said note.

      Heard April 6th.

      Decided October 27th.

    Case made after judgment from St. Joseph Circuit.
    Assumpsit on a promissory note ■ executed by tbe defendants to tbe plaintiffs.
    Plea, the general issue With notice of special matter.
    Trial by jury.
    On the trial the execution of the note declared upon was admitted. It was proved that after the note of the defendants became due, and on the 11th September, 1857, Kent, Lowber and Smyth, the plaintiffs, entered into a written agreement with William B. May, one of the 'defendants, which agreement was in the following terms:
    “ In consideration of the endorsement by May and Cloyes to Kent, Lowber and Smyth, as collateral security of two promissory notes made by Asahel Clapp and Son, bearing date respectively August 24th, 1857; one for $500 at twelve months, the other for $453.74, at eighteen months; and the agreement of said May to pay the sum of $553.74 in sixty days from the present date, according to the terms of a promissory note of this date of William B. May, in favor of T. G. Harris, to be applied on a certain note made by William B. May, J. W. Cloyes, Charles Cooper and John Hotchin, in favor of said Kent, Lowber and Smyth, dated September 14th, 1856, payable in four months from its date, for the sum of $1,414.98, it is stipulated and agreed on the part of said Kent, Lowber and Smyth that no proceedings shall be instituted for the collection of the last mentioned note, till either of the notes herein mentioned as assigned as collateral security for the payment of said note to Kent, Lowber and Smyth shall have been dishonored by non - payment.”
    It was also shown that the note for $553.was given for the balance of the defendants’ note ' for $1,414.98, after deducting the amount of the Clapp notes, and the two notes, of Clapp and Son had been paid:, that the note for $553.'ll had never been paid, and that William B. May had gone to California. The plaintiffs insisted that they were entitled to recover in this action the amount of said last mentioned note, but the Court charged the jury that by the payment of the Clapp notes the defendants were discharged from all liability on their note, and the plaintiffs could not recover. The plaintiffs excepted, and the jury, under charge of the Court, returned a verdict for the defendants.

      Riley & Shipman for plaintiffs.

      William, Savier for defendants.
   Martin Ch. J.

The only question in this case is of the construction of a contract. In tiffs we think the Circuit Judge was correct. The collaterals referred to in the agreement between May and the plaintiffs were very evidently the endorsed notes of Clapp and Son, for they are specified as such, while the individual note of May is not, but is treated as distinct from such collaterals, and his agreement to pay it at maturity is made • entirely independent of the payment of the Clapp notes. I think it too obvious to need argument that the parties to the contract intended to separate the May note from what are mentioned in it as notes “ assig’ned as collateral security.” In fact the May note was not an “ assigned ” note, but an original note of the principal debtor for the balance over the amount of the assigned paper.

The judgment is affirmed.

Campbell J. concurred.


author: Campbell J.:

text:
    William Gilbert v. Caroline Hanford.

      /Suit on Judgment — by whom brought. — A cannot maintain a suit in his own name on a judgment in favor of B, even though it be averred and proved that the judgment was rendered in A’s favor, by the name of B by mistake.

      Non - appearance of defendant in Justice's Court. — When the defendant is duly served with process in a Justice’s Court, but does not appear, the plaintiff must prove his case in the same manner as if the defendant had appeared; the latter waives nothing by his non-appearance.

      Variance in name — how taken advantage of. — When a written contract is sued upon, a variance in name may be taken advantage of under the general issue, and need not be pleaded in abatement.

      Heard October 13.

      Decided October 27.
    Error to W ayne Circuit.
    This was an action of debt on a Justice’s judgment. The plaintiff in error (defendant below,) demurred to the plaintiff’s declaration, and the demurrer was overruled. The defendant (below) then pleaded the general issue, and the cause was tried by the Court without a jury, and judgment rendered for defendant in error, (plaintiff below.)
    The pleadings and facts are sufficiently stated in - the opinion, of the Court.

      H. C. Knight and Charles Try on for plaintiff in error:
    It is a well settled principle of law, that where a Court has jurisdiction, its proceedings cannot be impeached collaterally; nor when of record, can there be any proof in opposition to the record. Clark v. Holmes, 1 Doug., Mich. R., opinion of Judge Goodwin, pages 398 and 400.
    Where there is jurisdiction the proceedings cannot be impeached collaterally; nor, when of record, can there be any averment or proof in ojaposition to the record; and whether its decision be correct or otherwise, its decision, until reversed, is regarded as binding in every other Court. 1 Wendell, 79; Riley v. Seymour, 1 Wendell, 147; Mather v. Hood, 8 John. R., 51; Cunningham v. Bucklin, 8 Cowen, 178.
    It is a general rule that a party proceeded against must be notified in some legal manner of the proceedings, in order to give the Court jurisdiction of his person • and where the statute prescribes the mode of acquiring jurisdiction of the person, it must be complied with, or the subsequent proceedings are a nullity. 1 Hill’s R., 130; Cowen’s Treatise, fourth edition, 252; 15 John. R., 244.
    Where the proceedings of a Court of inferior jurisdiction are void for want of jurisdiction, the consequence of the judgment being void, is as if there had been no action. 14 John. R., 432.
    If a, justice gives judgment against one who is not in Court, and who had not been served with summons, he would acquire no jurisdiction of him, and the judgment would, for this cause, be void. 14 John. R., 244; Campau v. Fairbanks, 1 Manning’s Mich. R., 151; 14 John. R., 481; 13 Wendell, 85; 19 John. R., 39; 3 Wendell, 202.

      Ward <& Palmer, for defendant in error:
    The defendant in error declared in her true name on a judgment recovered by her in a wrong name, averring that she was the identical person who recovered the judgment. The plaintiff here pleads the general issue and objects that the judgment so recovered is void on account of the misnomer.
    The objection is not tenable at all, and if it were it would not be under the issue.
    Misnomer is a ground of abatement only, and if not pleaded is waived, and the judgment recovered is valid. 1 Chitty, Pl. 248 and 451.
    The plaintiff below had only to prove the judgment declared on, and the averment of identity, to entitle her under the pleadings to recover. Barry v. Carrothers, 6 Rich, S. C. Rep., 331; LaFayette Insurance Company v. French, 18 Howard's U. S. Reports, 404; Hart v. Johnson, 6 Hammond's Ohio Reports, 240; Newcomb v. Peck, 17 Vermont, 302.
   Campbell J.:

Caroline Hanford sued upon a judgment rendered by a Justice of the Peace in favor of William Faulkner, against William Gilbert, upon default of appearance. The files show an acceptance of service of a summons purporting to be by William Gilbert. The declaration avers that Mrs. Hanford’s name was formerly Caroline Faulkner; that the judgment was rendered on a note executed to her by the name of Mrs. Faulkner, 'and never transferred to any one, and that the judgment was rendered in her favor by the name of William Faulkner by mistake, instead of in her true name. This declaration was demurred to on the ground that a judgment in the name of William Faulkner as alleged was not a judgment in favor of Caroline Faulkner. The demurrer being overruled and issue joined, Mrs. Hanford testified to the facts stated in her declaration, and similar objections being made on the proof, they were overruled.

There seems to be confusion in the' books upon the effect of the misnomer of a plaintiff, and when, if ever, it must be pleaded in abatement. But we think where a defendant is sued before a Justice of the Peace in the name of any person he has a right to suppose that no claim can be made out against him,' if he does not appear, except such as that person will be able to substantiate. A defendant- who does not appear in a'Justice’s Court waives nothing, as the plaintiff is in all cases bound to prove his cause of action as upon appearance. But it is well settled that where a written contract is sued upon, a variance in name can be taken advantage -of.under the general issue, and the misnomer need not be pleaded in abatement. 4 T. JR., 611. It is not alleged in either cause -that the note was given to William Faulkner by the name of Mrs." Faulkner, nor that •she was ever known by the name of William. The declaration showed no cause of action in William Faulkner whatever, and Caroline Faulkner’s name was not used and did not appear. We do not think Gilbert was bound to appear and assume that he was called on to respond to her in such an action; and as she did not •see to it that the suit was in her name, she cannot sue upon the judgment. It is difficult to perceive how the pendency of the suit, or the judgment in favor of William Faulkner, could have been pleaded in abatement or bar of an action in Caroline Faulkner’s name upon the note. The judgment, if valid, in favor of the plaintiff named, is not valid as a ' cause of action in favor of ■ any one else, and whether he is a real or fictitious personage, the present plaintiff is a real and a different -one.

We think the declaration • fatally defective, and the judgment below must be ‘ reversed with costs of both Courts.

The other Justices concurred.


text:
    In the Matter of the Distribution of the Estate of Benajah Ticknor.

      Construction of Statutes.— The application of particular provisions of a statute is not to be extended, beyond its genera] scope and object, unless such, extension is manifestly designed. •

      Statute concerning Religious Societies. — Foreign Corporations. — The statute concerning Religious Societies, etc., (Com. L., 660,) is confined to the restriction and regulation of-religious bodies exercising their functions in this State, and being, therefore, within its legislative control, so far as their temporal affairs are concerned; and does not embrace foreign corporations or associations, except in the exercise of their peculiar functions or corporate franchises within this State.

      Corporate franchises. — Bequest to Foreign Religious Corporations. — The receipt of money under a will, and the institution of legal proceedings to recover it, cannot he regarded as the exercise of such corporate franchises as are forbidden by said statute to any but domestic corporations, and a will bequeathing money to a foreign regliious corporation is valid, though it does not comply with the provisions of said statute.

      Bequests to Unincorporated Associations. — A bequest of money generally ■, and not upon -permanent «scs, to an unincorporated association capable of clear identification, is valid.

      Heard July 13 and 14.

      Decided October 27.
    Case made after judgment from Washtenaw Circuit.
    This case was an appeal from a decree of distribution of the Probate Court for the County of Washtenaw. The Prohate Court held that the Tract Society of the Protestant Episcopal Church in the United States could not take a legacy bequeathed to it, for want of legal capacity — it being unincorporated. The Tract Society appealed from tbis decree to the Circuit Court, which affirmed the decree of the Probate Court as to the Tract Society, and also held, revising so far the. decree of the Probate Court, that the bequests to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States, the American Bible Society, the Seaman’s Friend Society, and the Society for the Relief of Widows and Orphans of Deceased Clergymen of the Protestant Episcopal Church in Boston, Massachusetts, were void, as not having been made in accordance with the provisions of Chapter 68, Compiled' Laws, concerning religious societies, etc.
    The facts, so far -as they are necessary to ' an understanding of the legal questions raised in the case, are
    stated in the opinion of the Court.

      Sidney JD. Miller, for claimants:
    The statute under which the contestants seek to invalidate the will is the Act No. 145, of the session of 1855, which is incorported with the Compiled Laws as Chapter 68, (p. 659, 1 C. L.)

    A reference to the history of legislation upon the subject of this statute, will aid us in the examination of its provisions:
    The elements of the present law are found in the act of July 31, 1830, (Laws of 1833, p. 544,) entitled u An act to provide for the incorporation of religious societies,” which was substantially re-enacted by the revised statutes of 1838, (p. 223.)
    A glance at these statutes will show that the entire enactments, in all their provisions, have reference solely to such “ churches, congregations and religious societies ” as seek corporate capacity in this State.
    But, although these statutes were general, and were intended to be sufficiently broad to cover' the systems of government of all religious bodies, they were found to be inappropriate to the Methodist Episcopal Church, as well as to the Dutch Reformed Church and others, and accordingly we find these bodies applying to the Legislature for amendments adapted to their necessities. — See Laws of 1839, p. 83; 1840, p. 16; 1841, p. 79.

      The amendatory acts then granted had, however, left the, general law in such ill - digested form that the Council of Revision, provided for by law, attempted to harmonize the legislation by adding to the statute of 1838 the last two sections of Chapter 52 of the Revised Statutes of 1846, (p. 208.)
    These sections establish the rule that whenever,' under the peculiar systems or usages of any religious body, the governing pow“er was constituted in a manner different from a congregational election, whether it were by the designation of any single officer, or by their -own self-appointment, such governing power was to be, at their option, a corporation with all the rights and powers of other religious corporations under the provisions of the chapter.
    We contend that the law was never intended to apply to organizations legally existing in sister States, which do not seek to exercise any corporate functions within this State:
    1st. Because such a construction is in accordance with the history of legislation upon the subject.
    2d. Because it harmonizes with the general course of legislation. Since the adoption of the constitutional provisions requiring the formation of corporations under-general laws, twenty such statutes have been enacted, authorizing the incorporation of a great variety of associations ; these statutes constitute one general title of the law; they all relate to organizations within this State; many of them contain provisions more or less broad in then- language, susceptible of application to bodies not organized under , therm — See Chaps. 65 and 67.

    3d. Because it- is consonant with the spirit of comity between the States.,
    4th. Because by any other construction this statute must be regarded as introducing provisions of law inconsistent with Chapters 92, 93 and 144, and disturbing the general legislation therein contained.

      • 5th. Because it is a disabling statute, and should be construed strictly.
    6th. Because any other construction would render the provisions in question unconstitutional.
    7th. Because the provisions of the act would be inconsistent with themselves. Compare Section 22 with 24; the right to any existence is denied, while the power to take and hold property is granted.
    As to construction of the act, see the following: Smith on Stat. Con., p. 620, etc.; Bacon’s Abr. Stat. I.; Broom’s Legal Maxims, 246, etc.; Dwarris on Stat., p. 514, 532, etc.; Bartlett v. King, 12 Mass., 555; Fort v. Burch, 6 Barb., 60; Donaldson v. Wood, 22 Wend., 395.
    It was determined- by the Probate Court, upon the hearing for distribution, that the Protestant Episcopal Tract Society could not take .the legacy to them, because they were not a corporate body at the time of the death of the testator, and of the probate of the will. They became incorporated April 29, 1863.
    The association was organized in 1810, and its existence has been regularly maintained ever since, and no-question is raised as to the identity of claimants.
    If the directions of a testator are clear and unequivocal with respect to the disposition of his property, and if the objects of his bounty are such as should be encouraged by the law, why should it be permitted that such a technical objection should be interposed to defeat his purpose, and to avoid the cardinal rule in the construction of all wills, that the intention of the testator is to be sought after, and carried into effect?
    A bequest to a public officer, in his official capacity, and to his successors in office, has been held valid, though he is not ’otherwise named. — Inglis v. Trustees of Sailor’s Snug Harbor, 3 Peters, 99; Beatty v. Kurtz, 2 Peters, 566.

      T. M. Cooley, for residuary legatee:
    It does not seem to us to be necessary to discuss the point raised by counsel, that the statute is confined in its •operation to domestic corporations. The words of. the statute do not give it that restricted effect, and its purpose would be defeated if such a construction could be placed upon it.
    Section 2030 of the Compiled Laws provides that “no corporation, for religious, ecclesiastical, educational or charitable purposes, shall be recognized as existing by the -common law, the canon law, or by prescription, or in .any other manner, except by express statute of the State.".

    To give this section a literal construction may be thought illiberal, and wanting in that comity between States which ought to pervade our system- but it would be in entire harmony with what has sometimes been regarded as sound State policy, and very much more in .accordance with good sense and with the evident purpose of this law, than a construction which should forbid •corporations within the State to take, and allow the wealth •<of the State to be donated to foreign corporations over which the State has no control.
    The Protestant Episcopal Tract Society was not a corporation when this will took effect. It had, at that time, no legal authority to take and hold property. Having none then, its incorporation since cannot relate back so- as to save to it the legacy. If there was no capacity to take when the will took • effect, the amount designed to be given vested immediately in the opposing claimants, and their rights, thus become vested, 'cannot be divested by any subsequent action to which they were not parties.
    Whether a Court of Equity could sustain such a gift to án unincorporated society is a question not arising here.

      A. Fetch for heirs at law:
    We first consider the claims of the fowr incorporated companies.

    We deny their right to take the bequests; because,
    1st. They are all. within the prohibitory clauses of §2032 and §2033, Compiled Laws.
    That the legacies and legatees are within those provisions is manifest from the terms of the charters and by-laws of these companies.
    2. The documentary proof filed in the case shows that these four Societies are foreign corporations. Such corporations axe, by statute, prohibited a standing in our Courts. Section 2030, 1 Compiled Laws, 665, provides that “ no corporation for religious, ecclesiastical, educational, or charitable purposes shall be recognized as existing- by the common law, the canon law, or by prescription, or in any other manner, except by express •statute of this State.” All the corporations named in, the will come clearly within the .description as to the purpose of their organizations, specified in that clause of the statute; and this Court cannot, therefore, recognize them as corporators, or treat them as bodies having the right to be heard in our Court, or to take or hold property of any kind. Corporations organized under the laws of one State can exercise no powers within the jurisdiction of another except by permission of the sovereignty of the latter, and under the statute above quoted the sovereignty of Michigan denies all rights or recognition of rights to such as are organized for religious, ecclesiastical, educational, or charitable purposes, unless they derive their powers by express statute of this State. Foreign corporations, of the character indicated, are placed under inevitable prohibition. The object of the statute is. manifestly to confine the benevolent charities of our people, in furtherance of these great objects, to our own people and their home institutions, rather than to send them abroad to enrich foreign overgrown corporations.
    These four claimants then cannot be recognized in our Courts, and can take nothing within our jurisdiction by will or otherwise.
    Secondly. As to “The Protestant Episcopal Tract Society,” we deny its right to the bequest in question; because,
    1st. In this case it is to be regarded simply as an unincorporated association.
    The act of incorporation given in evidence shows that it was incorporated since this litigation arose, and, indeed, since the case came to the Circuit Court by appeal.
    Such subsequent act of incorporation does not aid the claimant. For the purposes of this hearing it is as it was at the commencement, still unincorporated. Owen v. The Missionary Society, 14 N. Y., 384; Baptist Association v. Hart, 4 Wheaton, 1; Baptist Association v. Smith, 3 Pet., 48 app.; Trustees Sailors’ Snug Harbor,, etc., 3 Pet., 99.
    2. As an unincorporated association, can the “ Tract Society” take this bequest.
    (a.) This also is a foreign organization, and the same reason which the statute (§2030) applies to corporations would seem applicable here. It is not, however, within the letter of the provision last referred to.
    After all the conflict of authorities on this subject in the various phases in which it has been presented, it is believed that the rule is now settled by the best authorities, that a gift or bequest to an unincorporated association, in its assumed name, is not good, and cannot be enforced either at law or in equity. Where such a competent person is named in the will, Chancery may aid in executing any legitimate trust connected with the donation, but where an unincorporated association alone is named as devisee or legatee, the gift Jails and the heir or next of bin takes the property. Downing v. Marshall, 23 New York Reports, 366; Williams v. Williams, 4 Selden, 525; Owens v. The Missionary Society, etc., 14 New Nork, 380; Beekman v. Bonsor, 23 New York, 298; see also the able argument of William O. Noyes, in the last mentioned case, in Appendix to 23 New York Reports, and, the authorities therein cited by him.

    Numerous other cases might be cited to the same effect, but these, with the references therein made, seem sufficient to establish the point.
   Campbell J.:

Benajah Ticknor made his will, providing for the investment of certain moneys, in which his widow was to have a life interest. Upon her death, that fund was bequeathed, in equal shares, to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States, the American Bible Society, the Seaman’s Friend Society, the Society for the Relief of Widows and Orphans of Deceased Clergymen of the Protestant Episcopal Church in Boston, Massachusetts, and the Tract Society of the Protestant Episcopal Church in' the United States. The first foru- Societies are incorporated under the laws of New'York and Massachusetts. The Tract Society is a New York Society,' not incorporated until quite recently, and since the application *to the Probate Court. The executors having applied to the Probate Court of Washtenaw County, (where the will was admitted to Probate,) showing the decease of the widow, and asking for an order of distribution, these legacies are' contested by the next of kin, jas rendered invalid by the statute of 1855, entitled “An Act concerning Churches and Religious Societies, establishing • uniform arules for the acquisition, tenure, control and disposition of property conveyed or dedicated for religious purposes, and to repeal Chapter 52 of the Revised Statutes.” — 1 C. L., 660. The clauses sujDposed to be violated are. the latter part of Section 22, and Sections 24 and 25. It is provided in Section 22 that '“no corporation for religious, ecclesiastical, educational or charitable purposes shall be recognized as existing by the common law, the canon law, or by prescription, or in any other manner, excej>t by express statute of this State.” Sections 24 and 25 require certain formalities and conditions to be complied with before a devise or bequest to religious Orders or Societies, or to be controlled by them, can be maintained. ,

In order to determine whether this statute reaches the ■case before us, we must look beyond isolated phrases to the general tenor and design of the act itself It has always been a rule of construction, (and. our constitutional provision requiring- the purposes of a statute to be indicated by its title, is but an extension of this rule,) that the application of particular provisions is not to be extended beyond the general scope of a statute, unless such extension is manifestly designed. Legislatures, like Courts, must be considered as using expressions concerning the thing they have in hand; and it would not be a fair method of interpretation to .apply their words to subjects not within their consideration, and which, if thought of, would have been more particularly and carefully disposed of. We think this statute, when compared with the state of things before existing, has a plain and consistent meaning, which will not allow us to regard it as embracing foreign associations, unless they undertake to exercise their peculiar functions within our territory, as they might do if lawfully incorporated here.

The general purpose of the statute is to revise the previous legislation concerning the incorporation of religious societies; to require them to become organized in such a way as to have suitable trustees representing the Society, and more especially to cut off all pretence of corporate capacity derived from any authority or system of laws not known to our Courts, and not subject to our own supervision, so far as all the temporal posses-, sions of the church should be concerned. Having provided that all religious bodies assuming corporate existence, and the control of property, must be organized in such a way as is deemed safe and expedient under our statutes, the law then proceeds, in the same spirit, to prevent their* obtaining gifts from private bounty, by any means which would prevent the calm and deliberate action of the donor, when in the frill and uncontrolled dominion of' his will and mental faculties. It is impossible to read the statute together, without seeing its object to be the restriction and regulation of religious bodies exercising their functions here, and being therefore entirely within our legislative control, so far as their temporal rights are concerned.

Section 22 is chiefly devoted to an entire prohibition of the exercise of corporate functions by persons not in-, corporated by our laws; and it is hardly necessary to suggest that we cannot impute to the Legislature a design of reaching matters abroad and beyond orn- juris-, diction, or of denying to corporations of other States, rights which they have derived under lawful authority there. Section 23 prohibits the recognition of the canon or. other ecclesiastical law, as a rule for the acquisition- and government of property; — again clearly relating to. its operation in this State, because we have nothing to •do with- acquisitions abroad. To hold that, after a series of sections consistently framed for the regulation of religious corporations here, the. sections regulating particularly the form and validity of donations for the benefit of such bodies were designed to reach a further class not in the-remotest way referred to before, would be to introduce an element of incongruity, and to impute a degree of care-, lessness which the • elaborate care previously evinced shows, could not have existed. It is undoubtedly true that some-of the evils aimed at by this statute may be accomplished by the importunities of entirely foreign corporations. But such instances cannot be very frequent, and their remedy would be more appropriately introduced elsewhere; and language should be very clear, indeed, to justify us in finding it in the statute before us.

The receipt of money under a will, and the institution of legal proceedings to recover it, cannot be regarded as the exercise of corporate franchises, such as ■are forbidden by the statute to any but domestic corporations. The law refers to such acts as a corporation is organized to perform, and not incidental proceedings, having no necessary bearing upon its peculiar corporate ■operations.

We think the foreign corporations mentioned in the-will are entitled to receive the bequests made in their favor.

The bequest to the Tract Society is resisted on the further ground that an unincorporated association has no legal capacity to take. We do not feel called upon, in this case, 'to examine into the vexed question of the extent of the judicial power of equity over charities. This will does not set apart property for any permanent purpose, nor does it purport to create any trust. It bequeaths certain money to an association without restriction concerning its use, and, of course, the money must be considered as devoted to its general uses. The articles ■of the society do not require money to be funded, but leave its application to be made at any time. The extraordinary powers of chancery have seldom, if ever, been applied, except to regulate permanent trusts requiring corporate, or quasi corporate, succession, to expend the income of a fund designed to be perpetual. And the only question before us is whether the legatees are so clearly designated, that the executors can find them, and pay the money into the proper hands, so as to be exonerated.

It has been settled that a devise of land cannot be made to an unincorporated society by name. Mr. Kyd, referring to Lord Coke, says that this rule did not always exist, and that the reasons for its adoption are not easily ascertained, and remarks: “ Perhaps loe must he satisfied with stating the rule as it is, without attempting to account for its origin." — 1 Kyd on Corp., 5, 6, 7. It is equally well settled, and for obvious reasons, that where an association is required to manage a permanent trust, it can only do so by corporate succession; for an unincorporated body has no' means of keeping up its existence, except by the consent and continuous agreement of new parties, and it is at all times hable, therefore, to become dissolved.

But there is very little authority for the claim that an unincorporated body of persons may not take an unconditional bequest of personalty, not charged with any permanent trust. It is said, indeed, in Owens v. the Missionary Society of the M. E. Church, 14 N. Y., 380, that “ nothing is better settled than that a devise or bequest to an unincorporated association is, in general, void as well in equity as at law;” and upon this remark, without further reasoning, it was held in that case that, without the interposition of some charitable use, which might give a ground for the peculiar interposition of the chancery jurisdiction over charities, a bequest to such a society was void. But the authorities referred to as sustaining this dictum all related to devises, or permanent trusts. Nor have we been able to discover any authority giving color to such a sweeping assertion. On the contrary, the law recognizes the acts and contracts of unincorporated associations as among the commonest tilings coming before the Courts, whether with or without trustees and officers. Partnerships and unincorporated joint stock companies do a large proportion of the business of every community. They take and 'transfer personal property "by their associate name, ancl no one has ever doubted their capacity to take by bequest that which they may take by contract. — De Mazar v. Pybus, 4 Ves., 644; Stubbs v. Sargon, 2 Keen, 255; 3 M. & Cr., 507. Where bequests are made to unincoiqjorated charitable associations generally, and not for permanent purposes, the English Courts have always upheld the bequests. They have not been sustained on the ground that they came within the extraordinary charitable jurisdiction. On the contrary, it has been held that, when made for the general purposes of the society, the public have no concern with the legacies, and the Attorney General is not a proper party, the money being at the entire and uncontrolled disposal of the association. Whereas if the bequests are made upon permanent uses, the society cannot take the money, and the Attorney General must be before the Court, and a scheme must be prepared placing the trust in other hands. — Wellbeloved v. Jones, 1 S. & S., 40; Wilson v. Squire, 1 Y. & C., 654; Waller v. Childs, Ambler, 524; 1 Jarman on Wills, 218. In other words, a bequest of money generally, to an ascertainable unincorporated society, is placed on thé same footing, so far as regards its right to take to its own use, as if it were incorporated. Similar bequests have been maintained where there has been no association whatever, but where the will pointed out the means of identification. Thus a bequest “ to the inhabitants of Tawleaven Row, in the parish of Sethney,”' was held sufficiently certain, and when their names were ascertained the money was ordered to be paid to them. — Rogers v. Thomas, 2 Keen, 8. The Inns of Court in England are mentioned by Mr. Kyd as remarkably ancient unincorporated associations, which have retained their real estate by an ingenious succession of joint tenancies. — 1 Kyd on Corp., 6, 7. It is well known that their valuable libraries and pictures are, to a considerable extent, derived from • bequests. The extent of their influence, and the fact of its legal recognition by the English Courts, are familiar to all. And if an incorporation were deemed at all necessary for the preservation of their valuable personal property, no one can doubt but that it would have been obtained long ago. That these bodies are not corporations is recognized fully by the authorities. — See SharswoocPs note to 1 Bl., 25; Tomlyn’s Law Dict., “ Inns of Court.’’’’

The great body of American decisions ftdly sustain the validity. of bequests to unincorporated societies. It is true several cases refer to them as charities; but it is not pretended that any American Court of Chancery can create a scfienle which shall give corporate success sion, and if these bodies can take at all, it can only be becarrse there is no inherent incapacity. The cases were fully cited on the argument,. and it is not necessary to refer to them here. We have found no satisfactory authority which shows why an association, capable of clear identification, is not as capable of receiving a simple pecuniary bequest for lawful purposes, as a partnership of purchasing a stock of goods.

The incorporation of the Tract Society, since this controversy was begun, renders it unnecessary to inquire into the names of the various officers. The bequest must be paid over to the corporation. The judgment of the Circuit Court is reversed, with costs, and an order must be entered requiring a distribution among all the legatees named, and that directions be sent to the Probate Court accordingly.

The other Justices concurred.


author: Christiancy J.:

text:
    Henry W. Crittenden v. Hiram D. Robertson.

      'Township meeting— Act of March 7, 1863. — The Act of March 7,- 1863, “to.legalize the action of townships, etc., in raising "bounties for volunteers.” (S. L, 1863, pp. 92-95,) extends to and renders valid a tax voted at a meeting of the electors of a township held for the purpose of raising "bounties, although such meeting was not convened in the manner required "by existing statutes authorizing special township meetings.

      Heard October 14.

      Decided October 27.
    Error to Calhoun' Circuit.
    This was an action of trover for the conversion of a horse. The declaration was in the usual form. The plea was the general issue with notice of justification under a tax warrant.
    The. ease was tried by a jury who returned a special verdict, upon which the Court rendered a judgment for the defendant in error, who was the plaintiff below. The facts found by the special verdict, so far as they are necessary to be stated, are as follows:
    On or about the 12th day of December, 1862, several electors of the township of Albion, and more than twelve in number, petitioned the township Board to call a meeting of the tax payers to devise ways and means for raising the quota of volunteers assigned to the township of Albion under a late order of the 'Governor of the State. On the same day the Board met, and by a resolution called a meeting of the electors of said town for the lYth day of the same month, and on the next day, printed notices of such meeting were very generally-distributed throughout the township, by posting the same in public places, and otherwise, by means of which, full notice of said meeting was given to the electors of said township. A meeting was held pursuant to such notice, at which the township board presided.. From two hundred to two hundred and sixty persons attended, being nearly all voters, and comprising nearly or quite half of the whole number of voters in the township. Resolutions were adopted by a large majority, to raise a tax for the purpose of enlisting volunteers to fill the quota of said town, and directing that the tax be assessed and spread by the Supervisor upon a separate roll, upon the taxable property of the township as specified in the last assessment, and that the Treasurer collect the same, and that the Township Board be a committee to present the action to the Legislature of the State.
    The Supervisor, immediately after the meeting, copied the assessment roll used by him in April, 1861, so far as regarded names of persons, the property assessed and the valuation thereof; and afterwards,, upon such copy, without any new assessment or valuation, spread the tax and annexed to the roll his certificate. On the 19th day of March, 1863, the Supervisor issued Ms warrant for the collection of said tax, to the defendant as Treasurer of the township; and the defendant, with the assessment roll and said warrant thereto attached, called upon the plaintiff and demanded the tax assessed against him; and the defendant refusing to pay said tax, the defendant seized the property to recover the value of which this suit is brought.

      O. I. Wallcer, for plaintiff in error;
    The proceedings of the town meeting being illegal, they are within the purpose and object of the act of 1863. The design of this act was to confirm and render valid just such illegal proceedings.
    As' to the validity of such enabling acts, see Scofield v. Watkins, 22 Ill., 66; Gilbert v. Board, 3 Kern, 183.

      H. Darwin Hughes, for defendant in error;
    The act refers to townships in their corporate capacity. They are made corporate by the constitution of the State, and when referred to in any statute the corporation, and not the people, is meant;
    The fitle to the act, and the very language of the act itself, show beyond doubt, that the act means “where any township, acting- as a corporation,” has raised a tax, etc. This’ view is also fully sustained by the language of section six, where a “board,” or “council,” is mentioned as representing the corporation.
    This being the case, the corporation, in raising the tax, must have acted as by law it is authorized to act. It must have been convened in the manner provided by statute before it could act.
    The statute provides no new manner in which a corporation may act, it only relates to the subject of action. It enables them retrospectively to raise money by tax for an additional purpose, but leaves them to act as before.
    ' This tax stands ■ precisely as it would if the township could have legally raised it when it was raised. So that the question for discussion is not whether the township had power to raise the tax, but whether they have raised it .in a legal manner.
    The action of 'the township, although for an object now made legal, was entirely illegal. The corporation, in fact, never acted, and was never convened so that it could legally act.
    The statute provides that notice of special meetings shall not be less than fifteen days, while this notice was only five days. Compiled Laws, p. 519.
    A want of - notice, such as the statute requires, mates the tax void. Osgood v. Blake, 1 Foster, 562; Judson v. School District No. 3, 38 Me., 164; Moor v. Newfield, 4 Me., 44.

    The proceedings were in many other particulars informal and illegal.
   Christiancy J.:

The only question raised in this case upon the special,. verdict, is whether the facts found bring the tax in question, and. for non-payment of which the horse was seized, within the provisions of the first section of “An Act to' legalize the action of Townships, Cities and Counties, in, raising bounties for volunteers,” approved March 7, 1863. Session Laws of 1863, pages 92 to 95.

The validity of the act is not questioned. But 'it is insisted by the counsel for the defendant in error that the only taxes intended to be legalized by the first section are those which have been voted and, raised by the townships, cities and counties in their corporate capacity; that, to enable the township to act in its corporate capacity in voting the tax, the electors must have .been convened in the manner and by the notice required by the statute for special township meetings, (Compiled Laws, •article 519,) which requires the notice to be given for not less than fifteen days; and that, as the notice in the present case was but five days, no elector was bound to regard it, and the action 'of the electors voting the tax is 'to be regarded as only their individual action, and 'not as the corporate action of the township. It is admitted ■on all. hands, and cannot be denied that the action of the meeting in voting, and the township officers in assessing the tax, were, at the time when such action was had, without authority of law, and in this sense illegal. But, on the other hand, it is equally clear that the veiy •object of the first section of the act was to legalize taxes which had been assessed for the purpose mentioned without the sanction of law, and which, but for this act, would have continued to be illegal.

It is also clear, we think, that by the statutes ■ in force' when such action was had, the township had no authority to act in its corporate capacity upon the subject of this tax, either by a meeting of the electors. or by its officers, and that there was no lawful authority ún -the .township for its electors or officers to raise Or assess any tax for the purpose in question by any mode of proceeding whatever. The meeting of the electors for the purpose for which it was notified and held would therefore have been equally illegal, had the notice been given for the length of time required by the statute for special meetings, and the. electors would have been under no greater obligation to regard it. As the electors could not have been legally convened for this purpose, nor to act upon this subject by any notice which could have been given, we do not perceive how the action of the meeting could have' been rendered strictly, or in any legal sense, corporate action, by giving the length of notice required for special meetings, or by any notice whatever. We see no reason for supposing that the Legislature intended by this section to insist upon the strict legality of any of the proceedings, as it is evident that no one of the steps of the proceeding could have been legally taken at the time. To hold, therefore, that the Legislature intended to require that any of the proceedings must have been, at the time, in accordance with the law, we must either suppose they intended to require what was impossible, or that no tax for this purpose was intended to be legalized by this section. We can discover no greater reason for supposing they intended to require strict conformity to law in respect to the time, than in respect to the subject, of the notice. All that can be required by a fair construction of this section, in regard to the notice of the meetings,. is that it should have been fairly given, so that the electors might have an opportunity to attend if they chose. The special verdict finds as a' fact that “full notice of the meeting was given to the electors of the township.” We see nothing, therefore, in the length of time for which the notice was given, (the only ground upon which the validity of the tax is assailed,) to render the tax invalid.

The meeting appears to have been largely attended, the township Board presiding, and the resolutions adopted by a large majority of those in attendance. It is apparent also from’ the . resolutions that tho proceedings were intended to be presented to the Legislature with a view to legislative sanction. The taz appears to have been fairly assessed, by the Supervisor upon the taxable property in the' township, and there is nothing to indicate unfairness or a want of good, faith in any of the proceedings. "We think, therefore, this tax is one of the class intended to be legalized by the first section" of the act. The warrant on which the property was seized appears to have been issued after the tax had received the sanction of the act of 1863. The seizure was therefore authorized by tbe warrant.

The result is that, in our opinion, the Circuit Court erred in rendering judgment upon the verdict for the plaintiff below. ’ That judgment must be reversed and a judgment' of this Court" rendered for the plaintiff in error, including costs in both Courts.

The other Justices concurred.


author: Camebeel, J.:

text:
    Stephen F. Page v. William W. Mitchell.

      Province of the Court —of the jury —as to damages. — In an action for falso imprisonment ¿be jury are required to find such general damages as they deem appropriate under the circumstances for the arrest and detention, as. well as any special damages which are lawfully proved to their satisfaction, and it is error for the Court to confine thorn to damages for mero loss of time;

      Therefore, where it appeared that the plaintiff was arrested and placed in the -custody of the sheriff at the jail, hut was not locked in tho cell which was given him as a sleeping room, and was allowed to visit freely tho sheriff’s apartments, being only restrained from leaving tho jail yard, and tho Court instrupted the jury that if they believed this, plaintiff could only recover nominal damages, explaining this expression to mean damages “sufficient to pay the plaintiff for his time while he was being arrested and takon to jail,” it was held that such charge was erroneous.

      Heard October 8.

      Decided October 27.

      Error to Ionia Circuit.
    This was an action for false imprisonment. Plea, the general issue with notice of matter in justification.
    The case was tried by a jury, who returned a verdict for the plaintiff and assessed him damages at one dollar. The facts were substantially as follows:
    On the 26th day of April, 1862, A. F. Bell made complaint before the defendant, who was a Justice Of the Peace, against one Giles B. Conkey, for selling liquor in violation of law, and asked for a subpoena for witnesses to support the complaint. • The defendant accordingly issued a subpoena for the plaintiff, which was subsequently duly served upon him, and in obedience to which he appeared before the defendant and was sworn; but upon being asked by the prosecuting attorney whether he knew anything about Conkey’s selling lipuor, he refused to answer, and persisting in such refusal, he was committed by the defendant to the county jail for contempt. Immediately after the plaintiff was . delivered at the jail, he was permitted to go away, but he voluntarily returned in a short time, and remained there in custody for eighteen days. The sheriff, during the whole period of his confinement, permitted the plaintiff in the day-time, to occupy his family sitting room, or parlor, which Yas ™ a portion of the building- used as a jail. At night, he slept in one of the cells which had been fitted up and occupied by some members of the - jailor’s family as a sleeping apartment. He was not locked into a cell, but at all times, day or night, had free access to lie sitting room and other portions of the house and yard, but. was forbidden to go outside of the yard. He took his meals regularly at the jailor’s family table.
    It was also shown that the plaintiff, before he was subpoenaed as a witness in support of the complaint, voluntarily appeared before the defendant and insisted upon being sworn in the matter; and that he again appeared, and demanded to know why he had not been subpoenaed, and insisted that the matter should be attended to at once; and that he sought, in various ways, to cause himself to be subpoenaed to testify in the matter.
    ' There was also testimony tending to prove special' damages to the plaintiff for his time, fees of officers and attorneys, and money actually expended in and about getting his liberty, of about two hundred dollars.
    The Court charged the jury that the plaintiff was entitled to a verdict, for the reason that the defendant had no right to issue the warrant of commitment, and that if they found that, by virtue of the warrant issued by the' defendant, the plaintiff was taken to the common jail of the county, and there confined in the jail portion of the building, according to the exigencies,of said writ, then they would find the defendant. guilty, and the plaintiff entitled to the special damages which he had proved, in addition to such general damages as in their .judgment, they should see fit to give under the evidence. On the other hand, if they should find that the plaintiff, by his own acts, procured the imprisonment complained of by procuring himself to be subpoenaed for the purpose of showing his contempt for the law, or for any other unlawful purpose, then it would be proper for them to take these facts into - consideration in estimating the general damages; or if, from the evidence, they found that the plaintiff was not confined in that portion of the building used for a jail, during any part of the time he was there, but was allowed to occupy the jailor’s - sitting room, parlor, dining room, and any part of his house and yard at his pleasure, then they would, find that the jailor did not execute the process as he was commanded, and that the defend.ant was only liable for the arrest and conveyance of the plaintiff to the jail.. And under such circumstances, if they found that the defendant acted in <good faith, the damages should be only nominal, that is to say, sufficient to pay the plaintiff for his time while he was being arrested and taken to jail.
    To this charge the plaintiff excepted.

      Theodore Bomeyn for plaintiff:
    The complaint of Mr. Bell, on which the defendant, as Justice of the Peace, issued the warrant against Giles B. Conkey, was confessedly insufficient to give jurisdiction. — In the matter of Morton, 10 Mich., 208.
    The plaintiff was in fact confined to the jail. It was a close confinement within the meaning of the * statute. — Compiled Icvws, §3918.
    The jail extends to all within the walls, and the inclosures appurtenant to it as a jail. The jail is one thing, the cells within it another, and the limits, or liberties, still another. — Comp. Laws, §315, §316, §342; also, §6129, §6131.
    This certainly is not the kind of confinement required in a case of contempt. — See §416, §5548, §5550, §5569.
    In view of these provisions, we contend that the whole of the comity buildings, with its enclosed yard, is, under the statute, the jail, and that confinement in it is close confinement in jail.
    And this is so at common law. — Benton v. Sutton, 1 Bos. and Pul., 24; Wool v. Turner, 10 John., 420; Bartlett v. Willis, et al, 3 Mass., 86; Partridge v. Emerson, et al, 9 Mass., 122; Steere v. Field, 2 Mason, 486; Burns v. Brian, 1 Speer’s S. C., 131; J. J. Abbott’s Digest, p. 572.
    But if the plaintiff was not subjected to the full measure and degree of imprisonment specified in the order of commitment, he was yet arrested and confined under and by virtue of it, to the extent specified in the case, and the defendant is liable for such trespass.
    It was a trespass ab initio, and all concerned are liable as joint trespassers. — Bigelow v. Stearns, 19 John., 39; Guille v. Swan, 19 John., 381.
    Tbe defendant, having erred in issuing the process, became liable to pay the plaintiff, at least, the latter’s ' expenditure in getting rid of the duress. — Allison v. Chandler, 11 Mich., 550.

      T. M. ' Cooley for defendant:
    1st. If the action of the defendant provoked the wrong complained of, he is not entitled to the same measure of damages as the peaceful citizen, who is attacked without provocation and suffers an injury for which he is in no degree blameable. — Cushman v. Ryan, 1 Story, 99; Avery v. Ray, 1 Mass., 12; Lee v. Woolsey, 19 Johns., 319; (Keyes v. Devlin, 3 E. D. Smith, 518.
    All that was done by the Circuit Judge was to apply the principle of these cases to the one then before him.
    2. The defendant is only liable for such imprisonment as was in pursuance of the command of the warrant.. He is liable for that which he directed. If there has been any imprisonment which he did not direct, -the sheriff, not the defendant, is liable therefor. — People v. Stone, 10 Paige, 606. “ \
    The plaintiff was taken to the jail by virtue of the commitment. He was immediately allowed to leave for liquor. This was an escape.
    From that time he was not for a moment in custody under the warrant. He remained with the sheriff; but, not remaining by force of any legal authority, nor in compliance with the command of what was illegal, he must be held to have remained voluntarily, and he is not entitled to recover damages therefor. — Fuller v. Bowker, 11 Mich., 204.
   Camebeel, J.:

Plaintiff sued defendant 'for causing him to be arrested; and imprisoned for refusing to testify before him under a void complaint, which, as we held in ex parte Morton 10 Mich, R., 208, gave defendant no jurisdiction to make the inquiry. Plaintiff having been arrested and placed in the custody of the sheriff at the-jail, was not locked in the cell which was given him as a sleeping room, and was allowed to visit freely the sheriff’s apartments, being - only restrained from leaving the jail yard. The Court instructed the jury that if they believed ’this, plaintiff could only recover nominal damages, explaining this expression to mean damages “ sufficient to pay the plaintiff for his time while he was being arrested and taJcen to the jail? Proof was introduced of special damage, including the expense of obtaining a discharge on habeas corpus, which became immaterial under this charge.

The Court erred in confining the jury to damages for 'mere loss of time, in consequence of an arrest. In all cases 'of this nature the jury are entitled and required to find such general damages as they deem appropriate under the circumstances, for the ‘ arrest and detention, as well as any special damages which are lawfully proved to" their satisfaction. The Court can never confine a jury to either nominal or special damages if there has been a real personal injury; and every deprivation of liberty is so regarded. It is for the jury themselves to determine whether the circumstances should reduce the recovery to a minimum. There was also error in taking the imprisonment by( the sheriff away from the consideration of the jury. This was done on the ground that there was an. escape in law, and therefore no subsequent imprisonment under the precept. As under our statutes the creditor cannot pursue the sheriff or an imprisoned debtor for an escape so long as the latter remains within the county, the doctrines of civil imprisonment have become with us quite unimportant.— 2 G. L., §5552, §5555. But where a defendant is held, for a public offence, or grievance, not civil in its nature, even a voluntary escape permitted by a sheriff does not prevent the officer from retaking him, and it is his duty to make the recapture, for which purpose the writ remains in full force.— Clark v. Cleveland, 6 Hill R., 344. In this case, while great liberty was undoubtedly allowed to the prisoner, which may and should be considered ^by the jury, yet there was evidence showing an actual detention within certain bounds of the prison. The prisoner did not remain at large and out of custody. . An in-, dictment for an escape must always charge that the prisoner went at large from his custody. — 1 Russ. Cr., 423; 2 Hawk. P. C. ch., 19, §14; Archb. Cr. Pl., 550, 553. So long as a criminal escape has not occurred, the party is certainly in custody under the process; and if the officer is liable for over-indulgence, he is not liable for-anything more; and a person arrested and taken to jail must accept such confinement as the sheriff, without exceeding -such severity as is lawful, may impose. The indulgence of his jailor may mitigate, but it does not destroy his imprisonment.

The facts introduced on the trial below had a tendency to show that the plaintiff was active in designing and bringing about his own imprisonment. There was also fair ground for arguing to the jury that the imprisonment itself was very much, if not entirely, under his own. control. That it was little more than a farce of his own enacting, was forcibly urged before us. ' But it was for the jury after all to say how much the-plaintiff had been damaged in person, or sensibility, or pocket, as well as whether or not he was his own jailor-in a voluntary martyrdom. If this was so in fact, there* can be no substantial grievance, to complain of. What^ ever we , may think of the demerits of the cause, it must be left to the jury to give to the evidence such force* ■as it deserves, and to measure the damages accordingly.

Judgment must be reversed with costs, and a new :trial granted.

The other Justices concurred.


text:
    Albert K. Cummings v. Abner Stone.

      Lost goods — agreement concerning, between joint finders. —Consideration. — 'Whil© plaintiff’s tug-boat was ‘towing defendant’s raft in St. Clair Rivor, the tow line caught in, and raised up from the river, an anchor and chain, which were seemed by defendant, and taken on his raft; — Held, That plaintiff and defendant were joint finders of the property, and that the interest of the former therein, was an adequate consideration for the agreement of the latter to sell it, and divide the proceeds.

      •Statute as to lost goods. — Burden of proof. — Said agreement being a verbal one, the defendant insisted that, inasmuch as under the statute in regard to lost goods, the right to sell the anchor and chain could not he acquired within a year from the finding, it could not he performed within a year, and, not' being in writing, was void ; —Held, That, to render said statute applicable, defendant should have shown that the property was found in that part of St. Clair River which lies within this State, and that, in the absence of such proof, that fact could not he presumed.

      “Judicial notice. — Held, also,. That the Court will take judicial notice of th© fact that part of th© St. Clair River lies without the boundaries 'of this State.

      •Error in charge to jury —when immaterial. — A judgment will not he reversed for ah erroneous charge to the jury, which, if correctly given, could not have changed the., result.

      Heard October 12.

      Decided October 27.
    Error .to Wayne Circuit.
    The • action was assumpsit, and the case was tried by ■a jury.
    On the trial, the following facts appeared in evidence: The plaintiff, in the summer of 1861, was the owner and ■master of a tug-boat, with which he was engaged in towing vessels through the Detroit and St. Clair Rivers. ■Some time during said summer he entered into an agreement with defendant, (plaintiff in error,) by which he undertook to tow a raft of lumber, from the mouth of Black River, in St. Clair. County, to the city of Detroit. After towing- the raft out of Black River into 'St. Clair River, the tug slackened speed, and, on starting again, the tow-line, which was the property of defendant, was. found to have an anchor and about one hundred and fifty feet of chain attached to it. The tug proceeded down the river with the raft, the anchor and chain still hanging to the line, until it reached Lake St. Clair, where the raft was- towed into shallow water, and the anchor and chain secured and put on the raft by the defendant and his employes.
    Testimony was introduced by the plaintiff, tending to show that, .while the anchor and chain were hanging to the tow-line, it was orally agreed between him and defendant, that the latter .should sell them, and divide the proceeds, between himself and plaintiff. It appeared that defendant had sold the chain, but not the anchor. Defendant denied the agreement to sell the anchor and chain, and divide the proceeds.
    The instructions of the Court, to the jury, to which exceptions were taken, sufficiently appear in the opinion.
   Campbell J.:

Plaintiff below having undertaken to tow a raft belonging to defendant below, the tug slackened speed at some place in St. Clair River, and, on starting again, the ’tow-line, which- had dipped into the water, and sunk some distance, caught. and drew up an anchor and chain of considerable value, which were subsequently secured, and put on the raft, by the owner and hands of the latter. It is alleged, and evidence was introduced to show, that Cummings, the raft owner, agreed to sell the property, and divide the proceeds, and that he had sold the chain. The action was brought to recover one-'half of the price obtained.

The defendant below claimed that, by the laws of Michigan, property found must be appraised, and the appraisal left with the town clerk for a year, before the owner’s title 'could be divested. Upon this, he asked the Court to charge the jury that a contract, such as was sued upon, was a contract not to be performed within a year, and therefore void, because not in writing. This the ■ Court refused, but charged that the proof was that the anchor and chain were picked up in the St. Clair River, without proving that it was in the waters of the State of Michigan; but that, if the jury found, from the evidence, that they were picked up in waters subject to the admiralty'jurisdiction of the United States, as property abandoned and derelict, the statute of Michigan did not apply.

There was no error in this charge which can be complained of by plaintiff in error. In order to show the alleged illegality of the bargain, it was incumbent on the defendant below to prove that it came within the statute. Illegality will not be presumed. As the Court knew judicially that all of the St. Clair River was not within the State of Michigan, proof merely that ’the anchor- was found in the river, had no tendency to prove that it was found in any township in the State. The finder, therefore, was entitled as at, common law, without reference to the statute, and, as against all but the owner, had a complete title. So much of the charge as referred to the admiralty jurisdiction was immaterial, as plaintiff was entitled to have the jury instructed directly that the statute could not, under the proof made, apply to the case. But it could not change the rights of the parties in this controversy. The admiralty jurisdiction upon these waters, whatever may be its theoretical and possible extent, has only been vested in the District Courts in certain specified classes of cases, connected with external commerce. If salvage cases, respecting derelict property, are justiciable in those Courts, they must have' some reference to the commerce referred to; and the evidence in the case before us has no such reference. And had the case been brought within these rules, the finder could only be disturbed by some one having better right.

Defendant below also asked the Court to charge that the fact that the anchor and chain were caught by the rope belonging to the raft, and connecting the raft and tug-boat, did not of itself entitle plaintiff to a verdict for any portion of the value of the property. The Court refused this, and charged the jury that it was a joint finding, and that, if they found the agreement as alleged, they should find for the plaintiff, to the extent of one-half the proceeds of the chain.

We think this charge entirely correct. Had it not been for 'the tug, the anchor and chain would never have been caught or raised. If the rope belonged to the raft, it was, nevertheless, used in the towing, which was done by the tug. Securing the anchor and chain, after they had been^ found and brought up, could not destroy the rights of the finder. The tug owner was entitled to, at least, a joint interest, and the agreement to divide was upon adequate consideration, and only expressed what might have been the implied right of each upon a sale by consent.

There was no error in the judgment below, and it must be affirmed,' with costs. .

The other Justices concurred.