author: TJpson, J.

text:
    Edson Terrill vs. Cassius G. Grove.
    In this State there is by statute no non-bailable capias by which suits may be commenced, but in all suits commenced by capias there must he endorsed on the writ an order to hold to bail, made by the Circuit Judge or Circuit Court Commissioner, on a proper affidavit
    2. This affidavit to hold to bail must be positive, and must make out a prima fade case against the defendant.
    3. An affidavit to hold to bail in an action for alleged representations on a sale or exchangeof lands, if such action may be commenced by crpias, should allege, in substance, that the de» fendant knew the representations to be false, and that they were made by him with the In» tent to deceive and demand the pliantiff.

      Branch Circuit,

      October, 1870.
    This was a suit commenced by captas, claiming damages for fraudulent representations in the sale or exchange of certain lands. An order to hold to bail had been obtained of a Circuit Court Commissioner, an affidavit made by the plaintiff, and the defendant had been arrested on the capias on which the order had been endorsed.
    The writ was made returnable at the October term of the Circuit Court for the county of Branch, 1870.
    The defendant, by his attorney, on the first day of the term moved the Court to quash and set aside the writ and the subsequent proceedings thereon, with costs, for the following reasons:
    1st. There is no allegation in the affidavit upon which the order to hold to bail was granted; that the defendant knew the representations to. be false at the time he made them.
    2d. There is no allegation in the affidavit that the. plaintiff trusted, relied upon, or believed the represetations to be true.
    3d. There is no allegation in the affidavit that the representation* were made by the defendant with an intent on the part of the defendant to cheat and defraud the plaintiff.

      O. B. Pratt, Plaintiff’s Attorney.

      G. G. Parker, Attorney for Defendant.
    The following is a copy of the affidavit on which the order to hold to bail was made by the Commissioner :
    STATE OF MICHIGAN. Branch County
    Edson Terrill, of said county, being duly sworn, says that on the 2d day of June, A. D. 1870, he purchased of Cassius G. Grove, cértain lands, described as follows, situate, lying and being in the county of Stone and State of Missouri, known and designated as follows, to wit: “ The North East one quarter of Section twenty-five, in Township twenty-three, North range twenty-three West, containing one hundréd and sixty acres, more or less.” That said deponent paid said Cassius G. Grove for said above .described premises, the house and lot then occupied and owned by this deponent, in the City of Coldwater, Branch County, Michigan, being described as lot number 17, in Cutler’s addition to the Oityof Coldwater aforesaid, and that said house and lot was worth at that time the sum of seventeen hundred dollars, and there was then upon Said premises a mortgage amounting to the sum of nine hundred and twenty-two dollars, and-this deponent further says that the said Missouri land above described was in the name of Flora J. Grove, wife of said Cassius G. Grove, and that said Cassius G. Grove in consideration of said sale as aforesaid to this deponent, caused his said wife to deed said premises, on the date aforesaid, by warranty deed to this deponent, and this deponent at the date aforesaid, deeded said house and lot to said Flora J. Grove, at the request of the said Cassius G. Grove, and this ’deponent further says that said Cassius G. Grove to induce this deponent to make said purchase, and to induce him to deed said house and lot to the said Flora J. Grove, did represent to this deponent, that said land so deeded to this deponent, was all good farming land, a part of which was prairie and a part of which*was good timbered land, and that his wife had a good and perfect title of the same. All of which representations and statements were false and fraudulent, and by which said false and fraudulent statements and representations, he, the said Cassius G. Grove, in fraud of deponent’s rights, did defraud deponent out of said house and lot, worth, as he believes, over and above said mortgage, the sum of eight hundred dollars.
    Whereupon he prays the said Cassius G. Grove may be held to bail, &c.
    EDSON TERRILL.
    Subscribed and sworn to before me, this 7th day of October, A, D. 1870.
    A. T. LAMPHERE,
    Notary Public,
    Branch County, Mich.
   Ry the Court,

TJpson, J.

-To authorize the plaintiff to commence his action by capias ad respondendum in this case, under the Statute, it was necessary for him to proeure'from the Circuit Judge or Circuit Court Commissioner, an order to hold to bail, to be endorsed on the writ, upon an affidavit to be made by the plaintiff or some person in his behalf, showing the nature of the plaintiff’s claim. 2 Comp. Laws, § § 4121, 4122.

If not, and if this is an action for damages arising upon contract, express or implied, then the statute has made no provision for a capias in such cases of debt arising out of or founded on a contract, express or implied, where fraud is the gist of the action, as specified in Section 33, of Article 6, of the Constitution of this State, as § 4119, 2 Comp. Laws, does not include such a case in enumerating the instances in cases of contract in which a capias may issue.

This affidavit to hold to bail must be positive, and must make out & prima facie ease against the defendant. Saterlee vs. Lynch, 6 Hill, 228.

See also note a to same case and the cases there cited. Graham’s Prac., 160; 1 Tidd’s Prac., 172; 1 Sellon’s Prac., 35.

The affidavit, to show a cause of action in this case, should have alleged in substance that the defendant knew the representations to be false, and that they were made by him with the intent to deceive and defraud the plaintiff. 1 Chitty's Pl., 388; 2 Chitty's Pl., 687; 3 Term Reports, 51; 2 Wend., 385; 7 Wend., 380; 11 Wend., 374; 1 Doug. Mich., 51.

This affidavit not containing any of these allegations, is fatally defective, and was insufficient to authorize an order to hold to bail and to justify the arrest of the defendant; and as under our practice in this State, as regulated by statute, if the arrest and special bail cannot both be required, a capias cannot be issued, and as under our statutes we have no non-bailable capias for the commencement of suits, (2 Comp. Laws, § § 4119, 4121 and 4122; Green's Prac., § 115; Ortman vs. Dustin, 1 Mich. Nisi Prius, 101,) therefore the motion must be granted, and the capias in this case with the subsequent proceedings therein must be set aside with costs, the defendant stipulating not to bring any suit against the plaintiff or the Sheriff.


source: Caselaw Access Project

license: Public Domain

text:
    Ziegenfuss vs. Ziegenfuss.
    Bill for divorce. Motion for alimony.
   The Court refused the motion for alimony on the following grounds: Because it did not appear from the affidavtis of counsel that the appeal was prosecuted in good faith; because it appeared that the defendant was poor, and that the complainant had wealthy relatives who were willing to provide for her.


author: Campbell, C. J.

text:
    Ryan et. al., vs. Andrews.
    roporty descending to a decedent from his father, passes to his maternal grandmother, where she is nearest of kin to decedent, though she was not related, by blood to the fathor.
    Error to Clinton Circuit.
   Opinion by

Campbell, C. J.

The case presents the single question whether property which descended to a decedent lrom his father, passes to his maternal grandmother, who was not related his father, or to more distant relatives who were so related, in exclusion of her claims as next of kin. The whole matter depends upon the construction to be given to § 2816. O. L. which reads as follows: • “The degrees of kindred shall be computed according to the rules of the civil law; and kindred of the half blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance came to intestate by descent, devise or gift of some one of his ancestors, in which case all who are not of the blood of such ancestor shall' be excluded from such inheritance.”

Held, that under this section the estate can never go to any one else but the nearest of kin according to the degrees of the civil law. If there is but a single next relative, he or she will take the whole estate without reference to whether the kindred is on the side of one parent or the other. If there' are several next kin and they are notable relatives on the same side, then only such of them will take as are of the blood of the ancestor from whom the estate was derived. In the present case, as there is no one else of the same degree of kindred with the maternal grandmother and she is nearest of kin, the estate devolved solely upon her, and the remoter kindred are excluded.

Judgment below affirmed with costs


author: Cooley, J.

text:
    Allen vs. Atkinson.
    Error to St. Clair Circuit.
   Opinion by

Cooley, J.

In this country, where titles are recorded, when a .contract to convey land is silent concerning the title, it is to be assumed that the title is good, and it devolves upon the vendee, if he questions it, to show the defect. But the' vendee has an undoubted right to a good title and to a deed with proper covenants, and to insist that his title should be a marketable one. In this case when Atkinson showed a defect upon the record, the most that the vendor eould insist upon was that he should satisfy himself within a reasonable time whether the apparent incumbrance was a valid one or not.

Judgment affirmed.


author: Graves, J.

text:
    Parker vs. The People.
    The statute {S. L> 1861^ p. 153) providing for a penalty for encroachments upon highways has reference only to such highways as are “laid out,” and not to those that exist by prescription.
   Graves, J.

-Parker was sued before a Justice for the penalty of 50 cents per day given by the act of March 11,1861, for an-alleged encroachment by fence, upon a highway, and the defend ant in error obtained judgment, and Parker appealed. On the trial in the Circuit, where the People again obtained judgment, certain exceptions were taken, which were carried to the Supreme Court.

Meld, That as the penalty sued for is only given for encroachment upon such highways as are “ laid out,” the evidence of user admitted on the trial to prove the existence of the way w;as immaterial and not pertinent to the issue.

The survey bill and order made by the commissioners, and which the court allowed to be given in evidence, did not show the laying out of a highway.. They were made under the statute which requires the commissioners to ascertain, describe and enter of record such roads as become highways by publio úse tor the requisite length of time.

This statute assumes the existence of ways by prescription which ought to be described in the town records, and does not contemplate the making of new ways. The survey and order in question were, therefore, inadmissible as evidences of the laying out of a highway; or of the existence of a highway laid out by commissioners.

Judgment reversed.


author: Patohin, J.

text:
    Selah Dustin vs. Asa D. Dickinson, et al.

      A commenced suit in the Circuit Court for the county of Wayne, against D and H. D. then resided in N. Y. and H in Wayne Co., Michigan. Ponding the suit, H moved to Illinois. Defendants then apply, under Act of Congress approved March 2,1867, to remove the cause to the U. S. Court. Application denied.

      Wayne Circuit,

      December, 1870.

      Levi Bishop, for Plaintiff.

      G I. Walker, for Defendant.
   By the Court,

Patohin, J.

This is a petition to remove the cause to the United States Court, on the ground that both defendants arenow non-residents, under the law of Congress, approved March 2, 1867, which provides that when a suit is now pending or may hereafter be brought in any State court in which there is controversy between a citizen of the State in which the suit is brought, and the citizen of another State, and the matter in dispute exceeds the sum of five hundred dollars, exclusive of. costs, such citizen of another State whether he be plaintiff or defendant, if he will make and file in such State court an afiidavit, stating that he has reason to and does believe that from prejudice or local influence ho will not be able to obtain justice in such State court, may at any time before the final hearing or trial of the suit file a petition in such State court for the removal of the suit”; and by a prior law, upon the party presenting a petition, accompanied by a sufficient bond, it is made the duty of the State court'to accept the surety and proceed.no further in the cause.

At the commencement of the suit the defendant Dickinson was-a resident of the State of New York, and the defendant Hodges, who is jointly liable as well as equally interested, was a resident of the City of Detroit, and within the jurisdiction of this Court, and remained so until the pleadings had been put in and the case placed upon the docket for trial for several terms, at some of which it was continued upon the motion of said Hodges. Afterward he removed to the State of Illinois, where he now resides.

The case has been once tried in this Court, and a new trial or dercd by the Supreme Court, pending which this petition was filed. It will be seen that the law as it stands seems to intimate that no matter that a State court has acquired jurisdiction in the proper manner, and exorcised it correctly almost to the close of the ease, yet the defendant, finding that he is about to be defeated, may by filing the required affidavit (and it is not at all unusual for a defeated party to imagine that great injustice has been done) not only take away the properly acquired jurisdiction of the State court, but to compel the United States Court to assume it without the consent of either.

But how much the well known rulings of the courts on this subject', together with the presumption that Congress always intends to pass wholesome and proper laws; will militate against this construction, is not necessary to consider in this case, for it is conceded that at the time of the commencement of the suit it could not be brought in the United States Court, the defendant, Hodges, being a resident of .this State. At that time, clearly, the jurisdiction of this Court was complete, and not concurrent with any other. It has long since been established, and cannot now be questioned, that when the jurisdiction of a court of the United States had once attached, no subsequent change in the condition of the parties will oust it. (See 15 How. 198, and 12 Peters, 165; 2 Wheat., 280, as well as a uniform line of cases on the subject.)

It seems to me to be the duty of the State courts to adopt the rule, thus firmly established in the United States, at least so far as to say that when the sofejurisdiction of the State court has once attached, no subsequent change in the condition of the parties will oust it.

I am of the opinion, therefore, that the case at bar does not come within the meaning of the law above referred to, and the petition should be denied.


text:
    Parsons vs. The People
    I» criminal prccoeelings against A., on complaint of B., for adultery Yitfh B.’a wife,B/0 "wife is a competent witness.
    Error to Branch Circuit.
   Opinion by

Campbell, C. J.

Plaintiff in error, having been convicted of adultery, alleges as error that the wife of the complainant was allowed to give testimony against him. He relie» on the latter clause of § 4342, C. L., amended in the Laws of 3861, p. 169, and the Laws of 1869, p, 150, which declares that “in any action or proceedings, instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify.” In connection with this he refers to § 5858, which provides that “ no prosecution for adultery shall be commenced but on the complaint of the husband or wife.”

The old law forbidding husband and wife to testify for and against each other, in most caaes, was reviewed, but it was shown that in bastardy cases there is now no legal impediment to the wife’s proof that she has been guilty of adultery. And in 4 Edwr. Ch. R., 621, a husband was allowed in a case, where the wife of another had sued her husband for adultery, to prove the act to have been done with the wife of the witness. The weight of authority clearly admits such testimony when the husband and wife are not parties.

Eeld, That the present case would come within the decisions referred te, and that the statute has not established any rule of evidence which would prevent the admission of the testimony. The remaining question to be determined was whether the proceeding by criminal process against the adulterer was a proceeding instituted by the husband within the meaing of the statute. Held, that it was not, but that the words of the statute relating to this matter were to be confined to-civil proceedings.

Judgment of the Court below affirmed.


author: Christiancy, J.

text:
    Delashman et. al. vs. Berry, Ex’r, &c.
    Where a bond is given by a defendant, under the forcible entry and dctainar act, to appeal tho suit to the Circuit Court, conditioned to pay accrued rent and costs, upon appellee obtain» ing restitution of the premises, a right of action upon the bond does not accrue until actual restitution and possession has been obtained.
    The facts to be presumed after verdict depend upon the issue made by the pleadings.
    Error to Branch Oircuit.
   Opinion by

Christiancy, J.

A Circuit Court Commissioner, rendered judgment against Delashman giving restitution of certain premises, and costs. Delashman appealed to the Circuit Court, giving bond conditioned to pay the rent up to the time the appellee should obtain restitution of the premises, together with costs. Suit was brought upon the bond. The only breach assigned was, that on the fourth day of April, 1868, such proceedings were had on the app.eal in the Circuit Court that by the • consideration of the Court it was ordered, amongst other things, that the complainant have restitution, of the premises, and recover against Delashman his costs and charges and have execution therefor. Of all which the said defendant is charged to have had notice. And it was further charged that Delashman did not forthwith pay the rent due or to become due to the complainant, up to the time when the complainant obtained restitution of-the premises, together with his costs, etc., where • fore he claimed damages.

It will he seen that the declaration does not allege that any rent 'became due or that the complainant obtained possession of the premises.

Held, That no right of action accrued, until actual restitution and possession had been obtained. The judgment might be taken to the Supreme. Court and reversed, in which case there would be no breach in the bond. Such restitution not having been obtained, the declaration shows ño cause of action.

It was, however, insisted by defendant in error that this declaration would be good after verdict, on the ground' that all the facts were proved on the trial which-were necessary to support the action. The rule of the common law is not so broad as this; the statute was intended to adopt the common law rule. The facts to be presumed after verdict depend upon the issue made by the pleadings.' It a declaration in assumpsit does not in any way allege a consideration, but the issue is upon a nudum pactum, no consideration will be presumed, because none appears to have been claimed to exist, and .the verdict will not cure this defect. But if it charges any facts from which it appears that the plaintiff claimed any consideration, if the defendant does not demur but goes to trial upon the facts, a verdict' against him will cure the defects in the declaration.

In the present case the pleader did. not intend to base his rights upon the existence of the facts deemed by the Court necessary to sustain his acton, and the Court could not infer the existence of facts which it is clear the declaration did not even imply. Had the declaration in other respects been good, the Court might have assumed that certain rent was due from the argumentative way in which that fact was stated in the declaration.

Judgment reversed with costs, but no new trial ordered, as no cause of action áppeared. As amendments to the declaration might be permitted in the discretion of the Court .below, the cause is remanded to that Court for such further proceedings as might be there taken.


author: IIigby, J.

text:
    William J. Calvert vs. Moses A. McNaughton, et. al.

    A Circuit Court has no general discretion to allow an appeal from the judgment of a ustico of the Peace based upon the equities of the case.
    Such appeal can be allowed under Sec. 190, of the Justice's Act, only where the party desiring to appeal was prevented from doing so within five days after judgment rendered, by circumstances beyond his control, and it is not beyond his control to see that the. office before whom he swears to an affidavit, signs the jurat, before lie files it with the Justice.

      Jackson Circuit,

      Octobe 1870

      W, K. Gibson, for Petitioner.

      J, B, Parsons, Contra.

   By the Court,

IIigby, J.

The plaintiff recovered a judgment against the defendants, before a Justice of the Peace.

This application is made under Sec. 190, of the Justice’s Act, which provides in substance that appeals may be authorized by the Circuit Court after the expiration of five days, where the party making the appeal has been preventonted from taking the same by circumstances not under his control.

The petition shows that within five days after the judgment was rendered, the defendant, MeNaughton, (the petitioner,) went to the office of the Justice who rendered the judgment, for the 'purpose of appealing the suit; that he filed with him the necessary bond and paid the costs and fees required by law for making a return; that an affidavit was prepared and signed by him, to which he was sworn by the Justice; that he left it-with the Justice in that condition, the Justice not having signed the jurat; that the Justice made return to the Circuit Court, but the appeal was -dismissed, on the ground that there was-no affidavit.

In support of the petition it is claimed that a case is presented showing that the petitioner was prevented from taking his appeal by circumstances not under his control.

In the case of Draper vs. Tooker, 16 Mich., 77, the Supreme Court says: It is quite clear that the statute did net intend to give a general discretion to the Circuit Court to allow' appeals in any case after five days, where in their judgment It unuld be equitable, or where the party Jias made a mistake or drawn an erroneous inference ; but that by the restrictive language used, the intention was to confine that discretion to the class of cases in which the appellant has been prevented from appealing within the five days, by circumstances beyond his control.”

In taking an appeal it is required that the appellant, amongst other things, shall within five days after the rendition of judgment, present to the Justice an affidavit. Sec 184, Justice’s Act.

The paper filed with or presented to the Justice in this case was not an affidavit, there being nothing upon it to show that it had been sworn to. It was within the power of the petitioner to have filed with him an affidavit; in fact it-was as much within his power to have presented an affidavit as to have presented the paper which he did.

He eould have seen to it that the jiirat was signed; in fact he could not present it to the Justice as an affidavit until it was signed.

If the Justice at his request refused to sign it, he could have sworn to it before any other officer authorized to administer oaths.— It was wholly at his own option that he left the paper with the Justice in the condition it was, and in no respect a circumstance beyond his control.

If the Court had a discretion to allow an appeal on equitable grounds, I should feel disposed, inasmuch as the paper was sworn to before the same officer with whom it was to be left or filed, to allow the appsal, but under the construction given to the law by the Supreme Court I must deny the petition.

[But see Lumbard vs. Zimmerman, 1 Mich. Nisi Prius, 313.— Ed. Nisi Prius.]


text:
    Hale vs. The People.
    Whore, in proceedings against a person for usurping the office of School Moderator it appeared affirmatively that such person has been elected to tho office,and it is sought to show his removal by the Board, Held, that tho records of proceedings of such Board are not competent evidence without skowingthe official character of the Board or its members.
    The complaint for the removal of a party from the office of Moderator referred to him as “of District No. two,” while elsewhere through the proceedings the District is described as District No. 1. Tho information charged the accused with having taken upon himself to act as Moderator of District No.11 one” Held, that since the proceedings for his removal indicate no other charge than that of falsely taking upon himself to act as Moderator of District No. 2, it must he assumed that it was on that charge that the-Board proceeded to trial and judgment.
    It is error to permit tliat to'^e shown by parol which the law requires to be perpetuated and shown by writing.
    The statute authorizing a criminal prosecution for falsely taking upon one’s self to act in an of. ficial character or capacity, was not intended to apply to a case where a party, in good faith and during a controversy as to his title, continued to act in the office to which he liad been chosen.
    Error to Calhoun Circuit.
   Opinion by

Graves, J.

Hall was charged with having falsely taken upon himself to act as Moderator of School District No. 1, of the township of Sheridan, and was convicted below. On the trial, the Prosecuting Attorney, having • given evidence tending to show that Hall had been Moderator of the district, and that a movement was made to remove him from the office, sought to prove that the Township Board removed him, and that he thereafter assumed to act as though still in office. To show the removal, certain writings, purporting to be the record of the proceedings of the Board in the case were offeredin evidence. Objection was made and the evidence was admitted.

Held, That as the Prosecuting Attorney had already submitted evidence tending to show that Hall had been made Moderator for a term covering the time when the acts of usurpation were alleged to have occurred, it was necessary to show that his official life had been legally out off before these acts were done. These writings were relevant, but were not competent without proof/ of the official character of the Board ór of its members. No evidence was given of such official character unless certain recitals in the papers themselves are to be considered. These writings could not be the medium of proof of a fact upon which their very validity depends. The admission of the papers wras improper.

The complaint for Hall’s removal was in the following terms :— t: Complaint against Harry B. Hall, of District No. two, for illegal use of public money,” while elsewhere through the proceedings the district is described as number “ one.” The information charged Hall with taking upon himself to act as Moderator of District No. “ one.”

Held, That since the proceedings for Hall’s removal indicate no other charge against him than that of falsely taking upon himself to act as Moderator of District No. 2, itmust be assumed that it was on that charge that the Board -proceeded to trial and judgment. If such was the fact it was a fatal error in the proceedings — upon a charge against him as Moderator in one district he could not be tried as a delinquent officer in another, and convicted and ousted from office in the latter.

The Prosecuting Attorney, against objection, showed by a witness that the complaint as made, described Hall as Moderator of District No. 1.

Held, That this was erronneous, as an attempt- to prove by parol a fact which was required to be perpetuated and shown by writing.

It was claimed that Hall was shown to have admitted his removal in a notice drawn by him in his assumed capacity of Moderator for a special meeting.

Held, That, this notice, standing by itself, if it tended to prove anything, tended more strongly to prove that in 'fact-, he continued in office than that lie had been turned out..

Held, further, That the statute authorizing a criminal prosecution for falsely taking upon one’s self to act in an official character x>r capacity was not intended to apply to a case where a party, in good faith and during a real controversy as to his title, continued to act in the office to which he had been chosen. ■ The theory of the Judge’s charge to the jury was erroneous in this regard and tended to mislead.

The judgment below reversed and new trial ordered.


author: HiGby, J.

text:
    Caleb Eaton vs. William Campbell, et. al.

    After judgment for the defendant in replevin, an execution was issued in form of a plaintiff's execution in assumpsit. After return unsatisfied, tliis suit was brought on the replevin bond. Held, on the trial, that the execution so issued colild not bp received in evidence, it not being an execution in the replevin suit.
    The plaintiff thereupon submitted to a voluntary non-suit, with leave to move te Set the same
    On motion to set aside the non-suit and for leave to amend such execution, Held, that the de* fondants could only be made liable on the bond by the,return unsatisfied of an execution in the replevin suit, and that the amendment asked for ought not to he allowed for the purpose of creating a liability not already incurred.

      Washtenaw Circuit,
    December, 1870
    U J. JB :ahes and C, Jasiin, for Plaintiff.

      Norris & Uhl, for Defendants.
   By the Court,

HiGby, J.

A .suit was commenced in this . Court by writ of replevin in favor of the defendant, James Pearson, Jr., is. Caleb Eaton, the present plaintiff. The defendants, William L. Yoáí and William Campbell, became sureties of Pearson in the replevin bond.

Judgment was rendered in that suit in favor of Eaton, the defendant therein, for the value of the property replevied and the costs of suit, and an execution was issued in favor of Eaton against Pearson, in the form of an execution ip. favor of a. plaintiff in assumpsit, and returned unsatisfied.

This suit is against the plaintiff and his sureties on the replevin bond.

On the trial of the case the execution in form in assumpsit, as above, was offered in evidence, with the return of the officer, unsatisfied. It was objected that it was no execution in the replevin suit, and the objection was sustained. Thereupon the. plaintiff submitted to a non-suit, with leave to move to set it aside.

A motion is now made to set aside the non-suit, and for leave to amend the execution so as to make it in form an execution for defendant in replevin.

The statute, C. L., § 5043, provides that if an execution in favor of the defendant in the action-of replevin shall be returned unsatisfied, in whole or in part, such defendant or his representatives - may have an action upon the bond &e. In order to make the obligors in the bond liable, it is necessary'that an execution.upon the judgment in replevin shall be returned unsatisfied in whole or in part.

The Supreme Court in the case of Williams vs. Vail, 9 Mich., 162, decided in a case precisely like this, that the execution in form in assumpsit, was not an execution in the replevin suit, and' that it was error in the court.below to admit it in evidence. The Court sav it was not in any proper sense an execution upon that judgment.

If this is correct it follows that no execution formal cr informal, has been issued in the replevin suit, and there is none to amend.

The effect of the motion then js not to amend, but to create an execution in the replevin - suit, and apply to it the Sheriff’s return upon the execution in assumpsit.

Courts have been and should be liberal in granting amendments as between the parties to a suit. In this case if the execution issued had been levied on Pearson’s property, and an application to amend had been made, so as to protect the levy, or even after sale to protect the title of a purchaser, I think it probable the amendment should have been allowed. At any rate it would have presented a much stronger case.

The application in such case would be to protect the title of purchasers under the process of the Court, no injury to the parties resulting. This application is for the purpose of making persons not parties to the suit liable to an action — to create a liability not already established by law.

By the law they are not liable to an action on the bond until an execution shall be issued in that suit and ■ returned unsatisfied. No such execution has been issued. These defendants were not liable when this suit was commenced and are not now liable: Can they be

made so by an amendment of the execution in assumpsit so as to-make it read as though it had been issued in the replevin suit. It seems to me not. It would bS an abuse of the power of allowing amendments.

I must therefore overrule these motions with costs.


author: Cooley, J

text:
    Thomas vs. Hoffman.
    In an action of trespass against several defendants, where verdict was renderod against all, on a motion for new trial on the ground that the verdict as against three of the defendants was erroneous, the Court below permitted the plaintiff to discontinue as to the three and rendered judgment for costs in their favor. New trial denied. Held, that the discontinuance was proper.
    Error to Lapeer Circuit.
   Opinion by

Cooley, J

The only question in this case related to the correctness of the Court in permitting a discontinuance as to three of the plaintiffs in error, after verdict against all three and judgment against the others, without a new trial. The action was trespass against fourteen defendants, and a verdict rendered against all. The same journal entry which records the verdict includes also a- judgment upon the verdict against all; but this was probably an inadvertence of the Clerk, as on the same day twenty days were allowed the defendants in which to move for a new trial. Thé motion was argued October 21, 1869, and the Court made an order that, it appearing that the verdict rendered against three of the defendants was contrary to the evidence, there being no sufficient evidence to show that they were guilty of the trespasses complained of, and the verdict being contrary to the charge of the Court, a new trial was ordered, unless the plaintiff within one day elects to discontinue as against the said three defendants, and' agrees to an entry of judgment for costs in their favor. The next day, attention having apparently been called to the fact that judgment had been entered upon the verdict, a new judgment was entered in favor of the three as to whom suit had been discontinued, and against the other eleven.— The defendants then brought error.

The ground taken was, that after a cause had been submitted to a jury, and they have by their verdict assessed joint damages against all the defendants, the plaintiff cannot discontinue as to one or more of the defendants and retain his verdict or judgment against the others. It was conceded that, as all torts are joint and several, the plaintiff, who has joined several as wrong doors in one action, may discontinue as to any of them before verdict, and that the authorities sanotion a discontinuance, after verdict, as to any defendant who, by reason of any rule of law, could not properly have been joined, and also as to any defendant against whom damages have been severally assessed; but it was claimed that the authorities do not go further.

The discontinuance in this case was correct, and the judgment below was confirmed with costs. For the ratification of any injustice which might accrue to a part of the defendants through any estimate placed by the jury upon the conduct of the defendants as to whom a discontinuance was entered, the Judge of the Circuit, must be appealed to.


text:
    Michael Brown vs. Byron R. Porter, Richard C. Traver and August Widdeman, Administrator, &c., of Charles Brutler, deceased.
    The doctrine is well settled that a vendor of land, if he has taken no security, although lie lias made an absolute conveyance by deed, acknowledging full payment of the' consideruth n, yet retains an equitable lien for the purchase money, unless there be an express or implied waiver and discharge of it. '

    A conveyance by the grantor without security, for the purpose of allowing the grantees to execute a mortgage on the property to a third person as security for a loan of money, to be used in payment of a portion of the purchase price, the grantor taking the grantee's personal bond, without security, for the payment of the remainder of the purchase price, is not a waiver of the equitable lien to such remainder subject to the mortgage.
    And in case of a sale of such promises by advertisement or foreclosure of the mortgage so given, such eqitablo lien for the remainder of the purchase price may bo enforced against any surplus money remaining after payment of the mortgage and costs of foreclosure.

      Washtenaw Circuit in Chancery,
    December, 1870.

      O. Ilawkins, for Complainant.

      Laurence & Frazer, for Defendants.
   Bj the Court,

IIigby, J.

Tbo bill alleges that complainant sold a farm to ‘Richard O. Traver and Charles Brutler for $1,500 — $750 clown, and the balance in four annual payments.

That the grantees had no money to pay down, and it was arranged that they might give to Robert McCormick a' mortgage on the granted premises, to secure a loan of the money to make said down payment, and such mortgage was given-to secure $800. That Traver and Brutler were partners as gunsmiths, and used the premises for their businéss until Brutler’s death.

That for the balance of purchase price Traver & Brutler were to give and did give to complainant their bond, payable as above, instead of a mortgage, to enable grantees to give tbe mortgage to MeCormick, and were to keep the premises insured and assign the policy to complainant as security,.which, however, they did not do. That Brutler died, and August Widdeman was appointed his administrator.

That the mortgage to McCormick not being paid, was foreclosed by advertisament, February 5,1870. The premises were sold at auction by defendant, Porter, as Sheriff, for $1,875

That after Brutler’s death, Traver gave a mortgage to Lewis CRisdon, for $295 23, payable in two ye irs from date, on which is now due $318 20.

The amount due with costs on McCormick’s mortgage, at time of sale, was $991 60, leaving balance in Sheriff’s (Porter’s) hands, $566 20.

That Brutler died insolvent. ‘ That there is now due on the bond to plaintiff $420,50, and that the firm of Brutler & Traver was insolvent at Brutler’s death, and that Traver is insolvent.

Complainant claims an equitable lien on surplus money in Sheriff’s hands.

General demurrer to bill for want of equity.

Judge Lawrence for defendants, in support of tbe demurrer, claims that the complainant by conveying the land for the purpose of enabling the grantees, Traver & Brutler, to give the mortgage to MeCormick, and receiving only their bond for the balance, waived his claim to an equitable lien on the land for the balance of the purchase price.

It is not disputed, indeed the doctrine is very clearly settled, that the vendor of land, if he- has taken no security, although he has made an absolute conveyance by deed, acknowledging full' payment of the consideration, yet retains an equitable lien for the purchase money, unless there be an express or implied waiver qr discharge of it.

It is insisted in support of this demurrer, that a waiver by the vendor of his lien for any purpose whatever, is necessarily a waiver of it entirely,' and therefore by waiving the lien for the purpose of enabling the vendees to give this mortgage, the, vendor has lost his lien for the balance of the purchase price. I do not think this can be so.

The presumption is in favor of the vendor’s lien, and a waiver either express or implied, must be shown affirmatively. 1 Leading Cases in Equity, and cases there cited; 3 American Ed.

All that can rightfully be presumed or inferred from the facts stated in the bill, is that the vendor so far waived his lien as to consent that the mortgage to be given to McCormick should have priority over his lien, This was secured to McCormick, and there is nothing in the circumstances detailed in the bill to show that any thing more was intended.

I must hold, therefore, that subject to the McCormick mortgage, the vendor’s lien remained unimpaired, except as to subsequent purchasers or incumbranees in good faith. Risdon having received his mortgage from Traver without notice of complainant’s lien, must of course have preference.

It is further claimed in support of the demurrer that complainant’s lien could only attach to the land, and cannot reach the surplus money in the Sheriff’s hands, and the land having been sold on the foreclosure of the mortgage, his lien is lost.

But what is this surplus money but a remainder of the estate left undisposed of after full satisfaction of the mortgage ?

It is as though a portion only of the property had been sold on foreclosure for the satisfaction of the mortgage, leaving the remainder discharged from its incumbrance. There can be-no doubt in such case that the equitable lien on such remainder would have remained unaffected by the foreclosure. In the same way and to the same extent it remains good upon this surplus money. No principle is better established than that a court of equity, when necessary to protect the rights of parties, will follow property, however it may be changed, so long as it can be identified. It may be changed from money to land or the reverse, yet so long as it can be identified and shown to be the result or avails of the same property to which the lion originally attached, the Court will protect the equitable rights of parties in it.

The demurrer must be overruled with c.osts.


author: Campbell, Ch J,

text:
    Kilgore vs. Hascall, Administrator.
    Error to Kalamazoo Circuit.
   Opinion by

Campbell, Ch J,

Plaintiff brought suit 'against defendant’s intestate, Caroline A. Hascall, for flowing certain of his lands by means of a dam on a parcel of land further down the stream. The defence justified, under a deed from Kilgore, which was claimed to authorize the flowage. Kilgore owned a tract of land west of the Kalamazoo and Three Rivers Plank Road. A stream called Portage Creek, ran northerly through these lands, and a branch called the Little Portage, flowed easterly through the same tract, and joined Portage Creek on the premises and near the plank road, In March, Kilgore conveyed to Deborah B. Allcott, a mill site and water privilege on the Little Portage, and also the same right and privilege erect a dam at or below the entrance of the Small Portage, and carry the water by a race, etc. The dam which caused the flowage complained of, was built on the Big Portage, considerably further down stream than Kilgore’s north line, and set the water back, but not beyond or up to the north bank ot the Little Portage, and there was no race or other work connected with it built on Kilgore’s land.— Plaintiff claimed that there was no right to flow his land unless the dam and races were also built- upon it.

Held, That the ruling of the Court below that the deed authorized the flowing,if necessary,was correct. The conveyance was intended to grant a water power to which the race and dam were mere incidents, and the grantee was not compelled to use all the privilege granted unless she chose, but might erect the dam on her own premises. In effect the plaintiff makes complaint that he has not been damaged as much as he might have been by the flowing, which he had authorized by deed.

Judgmeut of the Court below affirmed with costs.


text:
    Hinchman vs. Barnes.
    Newspaper — whero published.
    Error to Wayne Circuit.
   Opinion by

Cooley, J.

The principal question concerns the' meaning of the statute which requires “ notices of special partnerships to be published in two newspapers- in the Senatorial District within which the business is to be carried on” and makes the special partner liable as a general partner if there shall be any failure to make the requisite publication. The business in this case was to be carried on in the First Ward of the City of Detroit, and the.notice was published in two newspapers, the offices of which were in the Second Ward of the city, and in a different Senatorial District from that embracing the First Ward.

Within the meaning ot the statute the city, village or township where a paper is issued is the place of publication, one part of it j ust as much as another, and the statute does not design to take notice of inferior sub-divisions, or to inquire at all into the question whether the proprietors printed their own paper or Hired another person to do it, or how the papers were distributed. In this case therefore the notice as published was sufficient.


author: Ciibistianct, J.

text:
    Clee vs. Seaman.
    1- As a rule, clufenilant in tgectmont is afc liberty to controvert plaintiff’s tifcfc,
    i¿». Where a party went into possession of land under a contract of sale to him to- convoy “ the-right title and interest then held by him” (vendor) •• of in and to said land,” not stating what such interest was or was claimed to bo, and also a clause allowing vendee to go into possession: Held, that tho lost provision was a mere quit claim of any possessory right plaintiff might have, and on condition that he should turn out to-have such possession or right. Held furthci, that defendant was not estopped from denying plaintiff’s title, having obtained possession of tlie land on the faith of the contract: and continuing in possession, is uot estopped from denying any right or title of plaintiff, expressly or by fair implication, asserted or claimed by him in the contract.
    3> If tho vendor bad no possession, actual or constructive, there can be no- estoppel-
    Error to Wayne Circuit.
   Opinion hj

Ciibistianct, J.

As a rule the defendant in ejectment is at liberty to controvert the plaintiff's title. If plaintiff claims that defendant is estopped to deny his title, he must show the facts constituting the estoppel. This, plaintiff undertook to do, by the introduction of the contract with Guilfoil, with certain evidence tending, as he claims, to show that Guilfoil went into possession under it, and that defendant claimed the premises through Guilfoil by a deed from his widow and heirs. It is not claimed that Guilfoil would be estopped by the plaintiff alone from denying plaintiff’s title. If estopped at all, it is by having obtained from the plaintiff the possession of the land by means cr on the faith of the contract, or by having placed himself in a position which estops him from denying that he thus obtained the possession. If he did thus obtain it, he would never have been estopped while he continued in possession from denying any right or title of the plaintiff, expressly or by fair implication asserted, or perhaps claimed by him in the contract. The ground of the estoppel is that the vendor gives up the possession to the vendee, and the latter obtains it on the faith of the contract, and it would he a violation of goed faith, and a fraud on the vendor to allow the vendee, while he remains in possession, to deny such right or title of the vendor. If he proposes so to do, he must first restore possession to the vendor, and place him in statu quo.

It is tho possession from the vendor upon the faith of the contract that creates the estoppel, if it exists; and If the vendor have no possession actual or constructive, it would seem to follow that he could not transfer it, and that, this fact appearing, there would be no estoppel. As the vendee, however, may estop himself from denying the title, so he may doubtless under some circumstances, estop himself from denying the possession or right of possession of the vendor, and the fact of having obtained it from him.

When the vendor, as in this case, does not by his own contract set forth, allude to, or undertake to convey any particular estate,hut merely agrees to quit claim such right as he mag at the elate ef the contract have in the premises, the most that he can be said to assert is that he claims to have some right, which, if he has it, is susceptible of being transferred or conveyed by such quit claim.

And, as the vendee cannot he held conclusively to admit any either or greater title in the vendor than by his contract he appears to have claimed, it is difficult to see any ground upon which the vendee, though going into possession, can be estopped from denying any particular title or interest which the vendor may set up on the trial, since no claim to any one of these was asserted or therefore admitted by the contract. And though each should be disproved, or the vendee should prove any title in. himself, less than a full and perfect title to the whole, this does not show that the vendor did not have some other interest or right, or all that by the contract he claimed to have and the vendee is at most only estopped from denying that he had none at all. Besides the want of. mutuality, there is no such certainty as is required to sustain an estoppel.

But to estop the defendant from damaging the title1 of the plaintiff in any form or to any extent in the present ease, it was incumbent on the plaintiff to show that Guilfoil obtained the possession from the plaintiff under the contract. To do this he must show that he had the possession or the right of possession before the contract and that he transfered it the defendant and give him the possession ; or that the defendant, under the circumstances, is estopped to deny his possessory right.

It was held that the testimony did not tend to show this. The plaintiff gave evidence, however, tending1 to show that Guilfoil, after the date of the contract, went into the possession, claiming under it. And to determine whether the possession thus taken estopped him from denying the plaintiff’s possession or right of possession, the Court had to consider the possession with reference to the provisions of the contract. The substance of the contract was that, upon the payment of $60 and interest by Guilfoil at certain times, plaintiff agreed to sell and convey to Guilfoil — not the land mentioned in the contract — but only “ the right, title and interest then held by him of, in and to the said land, not stating what such interest was or was claimed to be.” Plaintiff further agreed that Guilfoil might immediately enter on the land and remain thereon and cultivate the same as long as he should perform the agreement on his part and ^o longer.

Held, That it was quite clear that the provision allowing Guilfoil to go into possession was’ intended to be co-extensive only with that in respect to the consequence of the title, a mere quit claim of the title, a mere quit claim of any right of possession the plaintiff might' have, and on condition that he should turn out to have such possession or right.

There is therefore nothing in the provisions of the plaintiff's agreement amounting to an assertion of possession or right of possession on the transfer of either to Guilfoil without some evidence that he had such right to transfer, and nothing therefore'to estop him from denying the right of possession to the plaintiff.

Held, further, that no stipulation on the part of Guilfoil amounted to an estoppel on the question of possession. It is clear from the language of Guilfoil’s covenant, that it refers to and was intended to provide only for the statute remedy for summary proceedings, by which landlords are authorized to receive possession- of lands held over by tenants. The covenant relates to an action of that nature; and does not apply to an action of ejectment.

The charge of the Court below was erroneous; the judgment must be reversed with costs and a new trial ordered.


author: Mitchele, J.

text:
    John J. Reimold vs. Frank Moore.
    •tho rule of the civil law giving the privilege of towing on tho banks of navigable rivers, and that the privilege is embraced in the public right of navigation, is at variance with tho written American constitutional law, and by the common law the privilege of towage on the banks of such rivers was never given except upon the principle of compensation to riparian owners.

      Macomb Circuit,

      September, 1870.
    Case commenced before John Stockton, Esq., a Justice of the Peace, of Macomb County. The declaration alleges certain trespasses on the plaintiff’s farm, lying on the southerly bank of Clinton river, and bounded on the northerly side by Clinton river, in said county, committed “ on. the first day of April, 1869, and divers days thereafter, in passing to and fro across said land by horses and men in towing vessels and in navigating said river, and usual allegations of trespass. The plea is the general issue, with á notice that the close, &c, in which the supposed trespasses were committed was the soil and free-hold of the defendant, and that defendant in his own right entered upon said land as his own freehold, &c., and further that the same was and is adjaeent'and along the banks of Clinton river, a navigable stream, which has been used by the public from time immememorial for the purposes of navigation, and that during all that time the public in using the stream for the purposes of navigation, have, in floating rafts, boats, barges and sailing vessels, up and down said stream, 'found it necessary to tow the same, and that for such purpose the said bank or bolder of said stream has been used as a path- or way in passing up and down said stream by men and animals in towing as aforesaid, without let, trouble, hindrance or molestation, from all and any person owning 'lauds on the said bank of said river.— That the defendant was the captain of a vessel or schooner nsecl in passing up and down said stream, and the acts complained of was done in the necessary towage of said sehooner.
    A bond was given and the case certified up to the Circuit- Court.
    It was conceded that the plaintiff was and is the owner of the land described in the declaration, and that it extends to and is bounded by the Clinton river on the north;
    It was then proved by the plaintiff that on the first day of April, I860, his fences ran into the river, and the defendant was on and crossed the land with one horse, towing a vessel. Defendant was seen, tliore twice on the land, towing, and the plaintiff forbid him and told him he would sue, and defendant again came on to the land, and for this plaintiff brought suit; whereupon the plaintiff rested his cause.
    The defendant then proved by Hon. Porter Kibbee, that he was the Commississioner named in the law of 1848, p. 4Í-8, und had known and been acquainted with Clinton river since 1886. That as-such Commissioner he saw most of the parties living along the river a id spoke to them about building three or four bridges and raising the bank in some places to make a tow-path. He did not recollect any obligations being made. No steps were taken to condemn the 1 tnd or by legal proceedings to secure' the right of way from the owners. lie talked with most of the owners about the right to what was nocessary, and no objections wore made. There was no survey nor any defined width for a tow-path established or agreed upon.
    Nathan Moser then occupied the farm now claimed by plaintiff. Could not state whether any improvements had then been made on the farm. Mr. Moser made no claim for compensation. There was a farm on the bridge next abovp. Messrs. Dickinson &_Stockton had charge of making the repairs.
    [Considerable further testimony was given relative to the use of the premises along the river bank as a tow-path, and as to improvements made in clearing the river of snags, repairing of bridges, &c., which it is deemed unnecessary to report. —Kep.]

      Edgar Weeks, Plaintiff’s Attorney.

      JIabburd & Crocker, Defendant’s Attorney.
   By the Court,

Mitchele, J.

There is no satisfactory evidence that the owners ever yielded or assented to the right to use their land for towing purposes, without compensation, any further than that some of them did not forbid the repairs made under Kibbee by Dickinson. On the other hand the testimony does satisfy me that the plaintiff and those under whom he claims, as well as the other owners along the river banks, (except where there was a highway,) have constantly demanded and insisted upon payment for crossing their land, in towing vessels, and that they have hot assented to any public right or easement for the purpose of towing vessels in Clinton river. No proceedings appear to have been taken under the law of 1848, p. 47, appointing a commissioner and authorizing the construction of a towing path, except the letting of a contract to clear the river and some slight repairs on the - supposed path. Nd survey was made or any other steps taken, as required by the law. for laying out highways, Rev. Stat. of 1846, p. 133—4, and to which the commissioner was referred by the act appointing him, as the law under which he was to settle claims, and by which he was to be guided in laying, out establishing and constructing ssád towing path.

No rights <¡0 a towing path were acquired under the law of 1848, and that law seems clearly to recognize the fact that a tow-path had not been established, and that it was necessary in some way to settle and determine the claims of the land owners before such a path could be constructed. It follows that the public have no right to cross the plaintiff’s land or to use the bank of the river as a tow-path under any statute of this State. 1 The public have not acquired a right to use the land for towing by user from time immemorial, they having-been constantly opposed in the free use of the same.

It is said that the civil law gives the privilege of towing on the banks of navigable rivers, and that, the privilege is'embraced in the public right of navigation.

This is at varianee with the common law and with the principles of the written American constitutional law. The right of towage was never given in England except upon the principle of compensation to the riparian owners. The-question was brought directly before the King’s Bench, in Ball vs. Herbert, 3 T. R., 253, whether at common law the public have the right of towing on navigable rivers, and it was expressly decided that they had not. It was the general opinion of tlie Judges that the right of towing depended on usage, without which it could not exist.

There have been decisions in Illinois and Tennessee partially holding with the civil law, but they are not generally accepted as the law of the United States. These' decisions as well.as somewhat similar ones in Missouri, do not go to the extent of giving the public a right to a tow-path along the banks, but only to the extent of saying-that navigators have a right to land and fasten to the shore as the exigencies of navigation may require. They were undoubtedly founded upon the established usage of the Mississippi, and may so far be reconciled with the current of common law decisions. The right of towage may be acquired by long and unobstructed usage, but not when obstructed or adverse claims are constantly made. See Kinloch vs. Neville, 6 Mees. & Wels., E. Ex., 794.

The banks, are private property subject to the exclusive appropriation of the owners, and are not subject to the use of the public, (Morgan vs. Reading,3 Smedes & Marsh., 366,) while the questions involved in this case have never been precisely decided in any reported case in this State, yet the general principles that answer them have been substantially determined in the case of Lorman vs. Bensen, 8 Mich., 18; Rice vs. Ruddiman, 10 Mich., 125, and Ryan vs. Brown, 18 Mich., 196.

In the first of these cases the common law rule in regard to navigable streams is distinctly applied to our tideless streams, and announced as the law; the Court saying that the common law rule is the most desirable one so far as fresh water streams are concerned.” The second case carries the owner’s rights to the centre of the stream for all beneficial purposes, so long as the public right of passage in the stream is not interfered with. And the last announces the broad principle that the riparian owner has the exclusive right to the bank of a stream for any beneficial purpose, and that the public cannot deprive him of the right without due compensation.

If this were not so, docks, booms, mills and all kinds -of structures on the bank of a stream, would be illegal, and liable to be torn down or removed as nuisances, if it should be deemed necessary or economical to tow vessels, q,nd they should be in the way of a towpath.

In view of the whole case, I find that there was at the time when, &c., no legal tow-path on the southerly bank of Clinton river; that the public had no right of passage over plaintiff’s lands for the purpose of towage, and that the defendant is guilty as charged, and assess the plaintiff’s damage at one dollar.


text:
    Henry Hammond vs. Catharine Harrison.
    Error to Van Burén Circuit.
   Opinion h/

Cooley, J.

September 10,1864, Hammond contracted to sell to Harrison an 80 acre lot in Van Burén Co., for $500 — viz: $120 down, and balance in subsequent instalments. The contract was in writing and was signed aud sealed on behalf of Mrs. Harrison by her husband, Who had oral authority for the purpose. Harrison took possession, and cut and sold considerable timber, paid taxes for two years and gave contracts to two persons for the sale of parcels of the premises.— The legal title at the time the contract -was entered into was in one Gordon, an insane person, of whom one Mickle was committee. T, W. Mizner acting as agent of Mickle, sold the landsto Hammond who purchased in good faith and in the belief that he was to obtain a good title. The conveyance however was not yet made. Harrison paid Hammond the whole purchase price except $103, and on September 14, 1868, tendered payment of this sum and demanded title, but Hammond having then discovered that Mickle had no authority as committee to make sale of lands in Michigan, declined on this ground to execute a deed, and Harrison then brought action for damages for breach of his contract to convey.

The defendant objected to oral proofs of the authority to plaintiffs husband to sign the contract, and the objection was overruled.

tfefá, that it was not essential that the eoutraot should he under seal, and an oral ratification of it afterwards-was sufficient, and the subsequent ratification was so abundantly- proved in this case that the error, if such it was, proved immaterial and the judgment will not be reversed for an error that was not productive of injury.

The plaintiff was allowed to prove by parol. that she had. paid certain taxes against the objection of defendant that the receipts were the better evidence;

Held, that the payment óf a sum of money may always be proved by parol, whether a receipt was taken for it or not.

An objection was taken to evidence by plaintiff, to show sales of the land made by herself. 1

Held, that this evidence was competent for the purpose of showing a ratification of the purchase by plaintiff, which was the sole purpose for which it was received. •.

The main question discussed,was the proper measure of damages. The Court below ruled that plaintiff could recover “ compensation for the loss and injury sustained by plaintiff in consequence of defendant’s breach of contract, and that in estimating the damages upon this principle of compensation, the jury had the entire range from the amount that was paid on the contract to the highest value of the land that was proven at the time of the breach, less the amount unpaid upon the same.”

Held, that the instruction given was correct as a general rule. But if the contract of sale was made in good faith, and the vendor for any reason is unable to perform, the clear weight of authority is that the-vendee is limited in his recovery to the consideration money and interest, with perhaps in addition the cost of .investigating the title. By this rule the measure of damages. is made to conform to the rule where the partyassumes to convey land which he does not own, and an action is brought against him on the covenants of title in his deed. The vendor’s good laith is conceded in this case, and is clearly inferrable from the evidence. When, therefore, the Circuit Judge laid down a general rule which made the good faith of the defendant unimportant, and gives the vendee in every case a compensation for the loss of his bargain when for any reason the vendor fails to perform, he erred.

Judgment below reversed, and 3 new trial awarded.


author: Sutherland, J.

text:
    Stephen Fargo vs. Cyrus Lovell.
    Where a complainant seeks to redeem real estate conveyed by deed, absolute in form, but intended as a security, which, has been in the possession of the mortgagee for over twenty years, the bill must show such facts as will sustain the conveyance as a still subsisting security subject to redemption — such facts as brings the case within the statuotoby exceptions preventing the bar, or rebut the presumption arising from the lapse of time.
    Where a party who conveys property apparently in fee, but really as security, and subsequently proposes to relinuqish the right to redeem a'portion of the property if other property conveyed to secure the same debt should be re-conveyed, and the notes for the unpaid part of that debt surrendered, and where, in response to such proposition the re-conveyance was made and one of the notes re-delivered, and the original grantor became bankrupt before the surrender of all the notes, Held, that equity will give effect to ktlie agreement, whoa such original grantor attempts to enforce his alleged right of redemption.
    An injunction may he dissolved where the answer, though not denying specifically the allega tions of the bill, sets up matters which if true, are deemed a sufficient avoidance.
    On a motion to dissolve an injunction, where the answer sets up matters in avoidance, the com plainant may reply by affidavits by way of avoidance, either traversing it or avoiding it by new matter.

      Ionia Circuit, in Chancery.
    Motion to dissolve an injunction.

      Theodore Romeyn, for Complainant.

      Blanchard, Bell & Dodge, for Defendant
   By the Ooart,

The bill is filed in this case to redeem real estate conveyed by deed, absolute in form, but in fact intended as security, after a possession by the mortgagee for twenty-seven years subsequent to the maturity of the mortgage debt.— Hence it is necessary for the complainant to show by bis bill such facts as will sustain that conveyance as a still substituting security subject to redemption. Reynolds vs. Green, 10 Mich., 355. They must be facts that bring the case within the statuotory exceptions preventing the bar, or rebut the. presumption arising from the lapse of’ time. Campau vs. Chene, 1 Mich., 400.

The bill attempts to avoid the bar that would arise from the lapse of time and the defendant’s possession, by alleging that the defendant fraudulently conveyed the property in apparent fee simple to Michael Lovell, in 1842, and that such title was retained by him until 1840; that complainant was not informed of. the re-conveyance for some time afterwards, and was soon thereafter under disability from

The bill does not directly allege .that the defendant’s dock will be ill health, which continued for several years.

It will doubtless be a prominent question onr the final h,earing whether these facts if proved, explain and excuse the delay, and preserve the right to redeem. I forbear, on this motion, to express any opinion upon it.

The defendant, by his answer, alleges a parol extinguishment of the equity of redemption over twenty years before the filing of the bill, by the agreement of the parties.

This matter in avoidance is set forth .circumstantially in- the answer, and is. not controverted by any contrary showing. The defendant alleges that the complainant proposed in 1841, to relinquish the right to redeem, the premises in question if other property conveyed to defendant to secure the same debt should be re-conveyed, and the notes for the un'paid part of that debt surrendered; that defendant immediately made the conveyance, and in 1848, after regaining possession of one of these notes that had been pledged to a third person,he returned them to the complainant on the express understanding that-such surrender and caneelment of the notes should be full satisfaction of the equity of redemption.

The complainant became a bankrupt between making his proposition and the surrender of the notes, and had the equity of redemption not been acquired by him afterwards, his acceptance of the notes might have been inoperative to extinguish the right now claimed; but since he now represents that right, equity may undoubtedly give effect to the agreement in aid of the defendant’s long possession as fully as though he had owned it without any interruption.

The only-plausible objection that can be urged to this defence, on this motion, is that it is matter in avoidance.

Though it has sometimes been held that an injunction will not be dissolved upon an answer alleging such a defence, notwithstanding it is sufficient if true in point of fact, it not being a responsvie disclosure to a bill asking discovery, and because the practice was supposed not to allow affidavits to be read controverting the facts on which such defence is based, yet I think such is not the modern practice. .The complainant may reply on this motion, by affidavit, to the defence, by way of avoidance, either traversing it or avoiding it by new matter, and in the absence of any such showing to the contrary, an injunction may be dissolved in the discretion of the Court, on such a defence being set up. See Florence vs. vs Bates, 2 Code R. 110; Opinion by Mason, J. cited at length in 1 Wat., Eden on Inj. p. 138 and note 1. A defendant ought not to be in a worse position for complainant not having anticipated and negatived such defence in his bill.

The injunction is not important to the complainant in respect to the real estate remaining unsold, for a notice of lis pendens will subject all purchasers, pendente lite, to the final decree. And should the complainant be decreed to be entitled to redeem and have the proceeds of sale which defendant has made, paid over to him, after the satisfaction of the mortgage debt, there is no reason suggested in the bill to doubt the ability of the defendant to respond to such a decree.

The injunction must be dissolved.


text:
    Gilbert vs. Kennedy.
    Where a declaration hi trcapash lays tins trespass with u continucndo and the plaintiff gives evidence of u trespass prior to tbo time laid, ho will be bold to lmve elected; his tJmo will not be permitted to go beyond the period In the continucndo,

    A party will be allowed costs for witnesses in actual attendance, though not culled to testify, if they were subpuanaod iu good faith.
    “ Double costs” mean single ousts nird-om*. half added.
    Error to Lenawee Circuit.
   Opinion by

Campbell, C. J.

Kennedy sued Gilbert before a Justice, for trespass guare clausum fregit, and the suit was removed to the Circuit Court on pica of title. The declaration laid the trespass with a continúen Jo, on the 24th of June, 1868, and various other times prior to August 5, 1868, the date of the commencement of suit. A general question was asked, whether Gilbert put any cattle on the premises during the summer of 1868. This was objected to unless confined within the period named, but the objection was overruled and testimony given showing the putting of cattle on the premises in the end of April, the driving them off by Kennedy and their being put back again. A question was then asked, “ How long did they remain therehut objected to as not within the declaration. The objection was overruled and proof submitted of cattle put and found there in May. June and July, and their continuance. It was urged as error that having laid the trespass with a continucndo, the plaintiff should uot prove any prior trespass, and then prove others either within or without the time, hut .must elect to prove one anterior or confine himself within the time alleged.

Ifeld, that the rule has long been settled that under such a deflation the plaintiff must elect, and having proved a trespass before the period iu the continucndo, must go no further. The rule is, that he is to he confined not merely to recovering damages for, hut to proving no trespass but the one he elects.

In regard to the question of costs raised, the Court held that if witnesses arc made to attend in good faith, and there is reasonable proof pf their necessity, the fact that, they are not called will not prevent taxation for their attendance where the party had reason from the state of the pleadings to believe he required them.

Held, that11 double costs” under the statute must be construed to mean single costs and an addition of one-half, .when there is nothing to qualify the phrase. As they belong under the statute to the party, and not to the officers or witnesses, the statute is of a penal character and should receive no larger construction than it fairly requires.


author: Chrjstiancy, J.

text:
    Burson vs. Huntington.
    Joining idsuGj a waiver of irregularity in sorvice of summons.
    The precise language of a decoded person wlio testifio on u former trial not icquired — substance sufficient,
    A promissory note lias no legal existence until its delivery.
    Error to Kalamazoo Circuit.
   Opinion by

Chrjstiancy, J.

Issue being joined in the Justice’s Court, in an action of assumpsit, a question as to the proper service of the summons, cannot afterwards be raised.

A witness testifying in the Circuit as to what another witness, since deceased, had testified on the trial before the Justice may, if lie is unable to state the precise language of the deceased witness, state the substance of his testimony.

A note has no legal existence until its delivery.

Accordingly where the payee in a negotiable note took the same from the table without the consent of the maker, before the conclusion of the agreement concerning the obligation to be. created by the note, and negotiated it before due, Held that the note had no legal existence, and its transfer to a bona fide purchaser could not make it valid.


text:
    Andreas Van der Brooks vs. John Currier.
    A erected a dock on his promises on the bank of a navigable river. B, an adjoining lot owner • was about to construct a dock to extend out into the river some distance beyond A’s dock; whereupon A filed his bill of complaint against B, praying for an injunction restraining the defendant from erecting the proposed dock, setting forth that if the proposed dock be constructed, it would make it inconvenient for boats to approach and leave complainant’s dock, thereby interfering with and obstructing the free navigation of the river. Held, in such case,
    1. An injunction will not bo granted unless the obstruction complained of will be a practical hindrance to the^uWtc use.

    2. Where a complainant’s legal right is doubtful a court of equity will not interfere by injunction before the legal right has been established at law.

      Bay Circuit in Chancery.

    Motion to dissolve Injunction.
   By the Court,

Sutherland, J.

These parties own adjoining lots on the east side of Saginaw river.

The complainant alleges in his bill that he erected a dock on his premises, five years ago, that it is useful as a place for loading and unloading vessels navigating the river, and that his lot is chiefly valuafor this convenience.

It also alleges that the defendant is in the act'of building a dock" on,his premises, and proposes to extend it out into the'river one hundred feet beyond the outer line of the., complainant’s dock, and beyond the line of other docks on the river; that the defendant’s dock if it is permitted to be constructed, will render access to the complainant’s difficult; that therefore the defendant’s proposed dock will interfere with and obstruct the free navigation of the river, ahdt will hence be a nuisance, and specially injurious to the complainant.

The defendant’s answer admits that the parties .have contiguous lots; that the complainant has a dock on his; that it is valuable on account of the access by water and the convenience of loading and unloading boats at his dock; that the defendant is in the act of building a dock on his premises, but denies that he intends to build it more than sixty-three feet into the river beyond the complainant’s dock..

The defendant denies that his proposed dock will be any impediment to the navigation of the river; that it will encroach upon.the navigable channel of the river,- or extend beyond the line -of other docks. He denies that the complainant will suffer any injury from it or has any right to complain of it; denies, in short, that it will be a -nuisance.

The answer is accompaied by a mtp, made a part of the answer-showing the. relative extent of ^the docks, and other erections along the river, in the vicinity of the premises in question, and the course, width and depth of the river.

There would appear to be outside of the line of docks, and of the defendant’s proposed dock, a clear space of over four hundred feet of water, of sufficient depth for boats of large size..

Apart from any inconvenience of access to complainant’s dock, and inconvenience in departing from it, from the greater projection of the defendant’s dock, there would seem to be no hindrance to navigation. ' The bill, fairly construed, alleges no other; if it does.it is freely denied by the answer.

Every encroachment upon a public river is not necessarily, nor prima facie, a public nuisance. People vs. Carpenter, 1 Mich., 273, 588, 290, and cases there cited; Queen vs. Betts, 71 Eng. C. L., 1022.

The gravamen of the complaint in this case is that the defendant' by extending his dock out into the stream further than the complainant has built his, there will .be an inconvenience in boats approaching and. leaving the'complainant’s dock, because of the necessity to go around that of the defendant. This inconvenience in some measure is manifest.

If the complainant is at liberty to establish the water front of his dock where he .pleases, and then has a right, to insist that no other person shall build a dock extending further into the stream, and that it shall be left open above and below from that line, he may complain that the defendant in this case threatens an obstruction to that right. If such a right is conceded to the complainant, why may not the proprietor adjoining him on the other side build a dock only half as far into the river, and ask that it may.not be incommoded by the complainant’s ? He could make -the same argument that the public have a right to use the entire river, and carried to its ultimate logical results, it would prevent at the option of any riparian owner, any dock at all being built.- Admit the argument,to this extent, that every erection in any part of the river where the public has a right to pass is a nuisance, and the complainant is in the awkward attitude of asking, the prevention of a threatened nuisance’ in favor of another, of the same nature maintained by himself. •

The complainant has no other right in the navigability of the river than all other persons have; in other words,,the river.is .not a. highway, in any broader sense in favor of his riparian interests than all persons are entitled to claim for passage.

The test furnished by the case of The People vs Carpenter, is the- 'question of fact whether the erection complained of in the highway is or will be a practical hindrance to the public use, not of a way to the stream, Or from the stream to private premises, but the public use of the stream itsell.

The bill does not directly allege that the defendant’s dock will be a practical hindrance except to boats approaching and leaving the complainant’s dock, and the answer, if the diagram it contains truly represents the river and the docks, shows that no other hindrance or obstruction is likely to result from it.

The depth of water immediately in front of the complainant’s dock is not sufficient for vessels of the largest size that are used on the river ; the water in front of the defendant’s proposed dock is of such depth. Has not the river such depth at the place in question that it may practically be. docked to such point as will allow the largest boats to approach without injuriously narrowing the navigable channel? If so, would such dock be a nuisance? 10 Mich, 125.

So far as this Court can judge from the proceedings, the proposed dock of the defendant, probably, would not be found by a jury to be a nuisance. Taking the most favorable view for the complainant, his legal right is doubtful. In such cases a court of equity will not interfere by injunction before the legal right has been established at law. Hart vs. The Mayor, &c., of Albany, 3 Paige, 213; 3 Myl. & Keen., 169; 1 Id., 185; 3 Atk., 391; Van Bergen vs. Van Bergen, 3 Johu. Ch. R., 282; Reed vs. Gifford, 6 Id., 19; Angel on Water Courses, Sec. 452; Robinson vs. Pittiger, 1 Green Ch. R., 57; Omsted vs. Loomis, 6 Barb., 152; Walk. Ch., 112.

The interference of equity rests on a clear and certain right, and an injurious interruption of that right which upon just and equitable grounds ought to be prevented. 2 Wat., Eden on Inj., 270, and note.

This is not such a case.

The continuance of a special injunction to the hearing where the whole equity of the bill his been denied, is in the discretion of the Court, but will generally bo refused, unless for reasons which '• make the ease an exceptional one. If the complainant would by the dissolution lose the entire benefit of his bill 'in case he should succeed upon the proofs, the Court will ordinarily continue the injunction, but its effect upon the other party will be also considered.

The complainant in this case will not, so far as this Court can anticipate, suffer such a loss of the advantage of his bill, if he establish a right to the relief he seeks.

The commissioner for Saginaw County, acting as Injunction Master, had no authority to allow the injunction.

The injunction must be dissolved.


author: Campbell, Ch. J.

text:
    Storrs H. Moulton vs. Hannah Mason, Administratrix, &c.
   Opinion by

Campbell, Ch. J.

Mrs. Mason, as administratrix brought suit to recover the value of certain goods sold by Moulton to deceased. Evidence was given tending to show the sale and delivery to Moulton of the property; that the deceased and Moulton examined and made an inventory of it which was written by Moulton in a book that he took possession of; that the deceased shortly before his death got said book from Moulton, and made or had made a copy of said inventory, and the book was returned to Moulton. Notice to produce this book and inventory was served on Moulton, and he failing to produce it,an alleged copy was received in evidence against objection.

When defendant’s case was in progress, he offered to prove by his testimony, that the paper produced was not a copy of lhat inventory, or of any inventory ever made by him, or which he ever assisted in making; that he never had in his possession any book containing an inventory of which that was a copy.— This testimony was ruled out.

The principal reason given for excluding this testimony was that it came within the prohibition of the statute as relating to facts equally within the remembrance of defendant and the de. ceased.

Held, that it is questionable whether said statute has any reference to written documents which are designed to supersede evidence resting in memory only. Where the representatives of the deceased have the means of proving the existence and contents of the document, and take it upon themselves to do so by independent evidence, the case is not within the mischief of the law and is not covered by it. Proof of the correctness of a copy is still more remote. Any one who had compared the papers when made, or subsequently, could give evidence on this point. The copy might be made after the death of both parties or without the knowlege of either when living, and their knowledge or ignorance could not affect its correctness.

It was- also insisted that by not producing the original of the inventory when demanded, the defendant precluded himself from disputing the correctness of the copy.

Held, that the refusal to produce the original, authorized proof by secondary evidence, but it does not dispense with such proof as is attainable, and does not allow proof of it by anything less than satisfactory evidence of all that is essential.— Such secondary evidence may be contradicted, and dispensing with primary evidence, only changes the degree of evidence required. It was not attempted here to produce the original to dispute the secondary evidence after having refused to produce it on request of his adversary. There is no sound reason however why the document itself should have been excluded if so offered. If such a rule could ever have been proper there can be no reason for it where parties are .competent witnesses and can be compelled by subpcena duces tecum to bring into Court any document in their hands relatihgto the case, while their adversaries have a right to inspect and prove. If Moulton had the inventory in his possession such a subpcena would have reached it.

The Court below also rejected defendant’s testimony offered to show payment - made by him to one J. G. Wright, of Oswego, for deceased, and to show an arrangement with one Header before the death' of deceased, whereby Moulton was to pay and did pay Meader, for deceased, a certain sum of money.

Held, that evidence of payment is always admissible in defense of an action of ^assumpsit, and if money was paid to a third person for deceased, proof that the payment was made and was authorized or ratified, would put it on the same footing as if paid to himself.

The rulings below were erroneous. Judgment below reversed with costs.


text:
    The People ex. rel. Francis Gilman vs. The Judge of the Third Circuit.
    The intention of the statute, in relation to new trials in ejectment cases, on payment of coats is to give a new trial after a judgment rightfully and regularly obtained. Accordingly wheye judgment on first trial is reversed for error, second trial had in the Circuit, a third trial may be had on payment of costs, the first trial being treated as a nullity.
    Error to Wayne Circuit.
   Opinion by

Christiancy, J.

One Hyacinthe Riopelle brought ejectment in the Circuit Court for the coupty oí Wayne, against the relator.and recovered judgment. The relator moved said judgment to the Supreme Courtby writ of error, where the judgment was reversed. Upon a second trial in the Circuit Court judgment was rendered for the relator. This second judgment Riopelle asked to have vacated, under the first clause of Sec. 4589, Comp. Laws, upon payment of costs, simply The Circuit Judge granted the motion, and the relator now’ applies to this Court for a writ of mandamus to compel the vacation of said order.

Held, That the intention of the statute was to give the new trial after a judgment regularly and rightfully obtained. The statute was not needed to get rid of a judgment wrongfully or illegally obtained.. If it has been wrongfully obtained, as by error of law or fact, it was not a legal and valid judgment, but subject to be reversed, and being reversed, the case stands the same as if no judgment had ever, been rendered. The new trial, iu question is the first new trial under this section. The new trial granted by this Court was not one of the new trials provided by this section. The time does not begin to run till alter the first judgment regularly obtained and reversed.

Mandamus denied.


text:
    The People vs. Peter Navarre.
    Iu prospcutions for liromlties under tlie statute for ohstruetmg liiglrwoy», (Comp. Zams, Ch. 21. Sec. 1, and Ch. 24, Sec. 5.) The People can only appear by some public officer designated b$ law, and not by private persons or attorneys.
    Error to Wayne Circuit.
   Opinion by

Graves, J.

Defendant in error was prosecuted before a Justice of the Peace, in the name of the People, to recover certain penalties claimed to have been incurred by him under the statute against obstructing highways, (Comp. L., Ch. 23,/Sec. 1,) and the'statute protecting bridges from injury, {Comp. L., Ch. 24, Sec. 5,) and the Justice rendered damages against him for $12 damages, and $10 costs of suit, and an appeal was taken to the Court below, where the cause was discontinued by oral consent in open Court, and subsequently judgment was awarded against plaintiffs in error and Joseph Loranger, their security, which were taxed at $77 25, and execution ordered to issue against plaintiffs and said Loranger for that sum. The only evidence of Loranger’s connection with the case is found in' this award of judgment. The writ of error appears to have been sued out in the name of the People only, and the assignments of error purport to be by them alone. Loranger does not appear to be a party to the record in this Court.— Neither the Proseenting Attorney nor the Attorney General is named as attorney for the People, and these proceedings appear to have been conducted by other counsel.

Hold, that the People can only appear in this class of cases by some public officer designated by law. They cannot be placed in the attitude of litigants in Court at the will and by the action of private persons or attorneys. Plaintiffs in error are not legally in Court at all. The writ pf error was improvidently issued and must be dismissed.


author: Upson, J.

text:
    Albert R. Foster vs. Matthew Wiley and William J. Monteith.
    1. When an execution is regular and legal upon Its face, and is issued by a magistrate having apparent authority to 'issue it, the officer serving it will bo protected.
    2. Where a Justice of the Peace issued an execution on a judgment regularly rendered beforo him, after the case had been appealed to the Circuit Court, and delivered the same to an officer for collection, and the officer by direction of the attorney of the plaintiff in the execution, levied upon and sold, by virtue thereof, a buggy of the defendant, to satisfy the execution, after having been notified by the defendant that he had appealed the suit, Held, in an action of trespass by the defendant against the officer, that he could justify under the execution, and was not liable in tliat-action.
    3. A ministerial officer is protected in the execution of process regular and legal on its face, though he may have knowledge of facts rendering it void for want of jurisdiction.

      Allegan Circuit,
    January, 1871.
    This was an action of trespass brought by the plaintiff, Foster, against the defendants, Wiley and Monteith, for the taking on execution and disposing of a certain buggy belonging to the plaintiff.— The execution was issued on a judgment rendered in Justice s Court, in favor of Wiley against Foster, which judgment Foster claimed to have duly appealed to the Circuit Court.
    A statement of the facts in regard to the appeal, and the ruling ot the Court thereon, sustaining the appeal, will be fuund in 1 Mich. Nisi JPrius, page 257.
    The execution was issued by the Justice after the appeal had been taken, and was delivered to Monteith, who was a Deputy Sheriff, to be collected.
    Monteith was notified both by Foster and his attorney of the •fact that an appeal had been taken, and the circumstances attending it, and was warned by them not to enforce the collection of the execution, but notwithstanding this, he, by virtue of the execution, which was regular on its face, levied on the buggy in question, when Foster was using it, and unhitching his horses from it took it away and sold it under the execution, acting in the matter under the direction of the attorney of Wiley.
    On the trial of this trespass suit in the Circuit, before a jury, the defendants, by their attorney, submitted to the Court, amongst other requests, to charge the jury u that if they found from the evidence' that the execution was fair on its face, then they must find, for the defendant, Vm, J. Monteith ,” which request was refused by the Court. The Court also, charged the jury on request of the attorney ®f the, plaintiff, Foster, that ‘‘the Justice had nopower to issue execution after the cause was appealed, and the execution therefore constitutes no protection to the piaintiff in that judgment, and none to the officer either, if he had knowledge of thp facts depriving the Justice of jurisdiction, viz: making an appeal'to the Circuit.” Other requests were submitted on behalf of both defendants and in their justification which were refused, hut the chief point relied upon was embraced in the foregoing request to charge on the part of the defendants, which was refused, and in the request to charge on behalf of plaintiff, which was granted.
    The jury, under the charge of the Court, rendered a verdict for the plaintiff, and the defendants come and now move the Court to set aside the verdict and grant a new trial, setting up various special reasons therefor, but, relying chiefly on.the above as to Monteith,. the officer, and claiming that there was no evidence in the case connecting Wiley with the alleged trespass, or showing that he had any knowledge of the same.

      IT. C. Stoughton and H. F. Severens, Attorneys, and of Counsel for Defendants.

      J. L. Hawes, Attorney for Plaintiff.
   By the Court,

Upson, J.

The general rule as laid down by.the authorities seems to be that in cases of this kind if the magistrate has jurisdiction of the subject matter, and if the process is regular upon its face, the officer executing it is protected, and in questioning or reviewing his action, the Court will not look beyond 'the process to see if he was cognizant of any irregularity in regard to it. 7 Met., 257; 10 Cush., 46; 9 Conn., 140; 5 Hill, 440; 24 Wend., 485.

•These decisions seem to hold that it is of no consequence even if the officer had knowledge of facts rendering the process void for want of jurisdiction, and to affirm that the officer is protected by process regular upon its face, whatever he may have heard going to impeach it. “It will not do,” says Parker, C. J., in Sanford vs. Nichols, 13 Mass., 288, “ to require of executive officers before they shall be held to obey precepts directed to thenf, that they shall have evidence of the regularity of the proceedings of the tribunal which commands the duty. Such a principle would put a stop to the execution of-legal process.” This principle of protection to the officer is recognized by our own Supreme Court, in Wall vs. Trumbull, 16 Mich, 233, 234, where it is held that a ministerial officer cannot be held- liable “ where the precept or order under which he acts, comes to him from the proper source, and is within the apparent authority of the body or officer issuing or making it,” and in this particular case the Court adds, “ and even if the officer had knowledge outside of his certificate, of the facts constituting the alleged illegality, I do not think it would effect the rule of protection.” See also 19 Mich., 57; 6 Mich., 144; 1 Mich., 85. In the case before us, the execution was regular on its face, and within the apparent jurisdiction of the magistrate issuing it, and the officer, Monteith, in serving it, seems to come within the rule above laid down, and to be entitled to protection. The charge of the Court on this point having been erroneous, the defendant, Monteith, is entitled to a new trial. 24 Wend., 485. There might be more question as to the other defendant, but as it was virtually conceded on the argument, that if the motion prevailed in regard to the officer it should as to both, the verdict must be set aside and a new trial granted, costs to abide the event of the suit.


text:
    De Vries et. al. vs. Conklin.
    Error to Lenawee Circuit.
   Opinion by

Cooley, J.

The question presented is whether a married woman can be personally liable in this State on a promissory note which she has signed as security for her husband, and where the sole consideration was the pre-existing debt of the husband. Held, that the statute does not confer upon her any authority to create such a demand, and the Court below erred in holding her liable.


author: Ciuustiancy, J.f

text:
    Jacob Defoe vs. The People.
    Error to Eaton Circuit.
   Opinion by

Ciuustiancy, J.f

The charge in the information was of an assault with intent to commit rape. The prosecution gave evidence tending to show an assault with the intent charged, &c. Her evidence was not confirmed by that of any other witness as to qny of the more important facts goingto establish tfie truth of the charge, but was contradicted as to several important circumstances by the other witnesses. The defendant, on the trial, made a statement in his own behalf, in which he denied all the allegations of the prosecutrix and characterized them as false and untrue and added thrt he had never insulted her in his life; The Court, in the charge to the jury said: “ The statement of the defendant does not, however, directly deny the assault. Tilts' silence would go far to confirm the testimony oí the complainant.’’ .

Held, that this charge was erroneous, in assuming as a fact what the bill of exceptions shows not to have been as thus assumed. The third denial that “ he had never insulted her in his life” must certainly be regarded in the connection in which it is found, and with reference to her testimony as a direct denial of the assault which her testimony tended to prove.. And it his testimony tended to show that “ all her allegations (of which the assault was one) were false and untrue,” this was a clear and sufficiently direct denial of the assault.

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