author: Campbell, Ch. J. Cooley, J.

text:
    The Michigan Central Railroad Company v. Eli B. Anderson.

      Recalling witnesses. Whether or not a witness may he recalled for the purpose of correcting his testimony, is a question within the discretion of the Circuit Judge, and will not be reviewed on error.

      Special risJcs incident to proximity to Railroads: Liability of Companies. The care which a railroad company must exercise in the running of trains so as not to injure property situated near their track, is not contingent upon such circumstances as the force and direction of the wind, the dryness of the weather, or the combustible character of property liable to be affected. The company not being in fault as to the quality or character of their equipments, the special risks incident to proximity to rail road trains must be borne by those who establish themselves in such localities.

      Heard April 15.

      Decided April 26.

    Error to Kalamazoo Circuit.
    This was an action on the case brought by Eli B. Anderson, in the Circuit Court for the County of Kalamazoo, against the Michigan Central Railroad Company, for the value of a building, and property therein stored and adjacent, consumed by fire on the night of the 20th of April, A. D., 1866; Anderson claiming that the fire was communicated from sparks and cinders flying from engines passing over the track of the railroad company, and was the result of carelessness and negligence on the part of the agents of the company. f

    On the trial of the cause, Thompson, a/witness Avho had been examined on the behalf of the company, was recalled by defendants, who proposed to show /iy his testimony, that when he was on the stand on his direct examination, he did not testify as the plaintiff’s counsel had by their rebutting testimony in the case, assumed; and that if he was so understood to testify, it was a misapprehension, as witness did not intend so to testify, nor wish to be so understood as testifying.
    To which proposition the counsel for the plaintiff objected, for the reason that it was not a proposition to allow the witness to correct his testimony, but a proposition merely to allow the witness to go upon the stand and say that what he did testify to was different from what he was understood to testify to. The objection was sustained by the Court, and the defendant excepted.
    The witness also requested that he might be permitted to explain his testimony and what he testified, or intended to testify to when on the stand, which request was objected to by the counsel for the plaintiff for the same reasons as urged in support of objection to the preceding proposition. The objection was sustained by the Court, and the defendant excepted.
    In submitting the cause to the jury, the Circuit Judge, on the request of the plaintiff, charged:
    “3. That in applying the rules of the law in this case, regard must be had to the actual state of things at the time; the force and direction of the wind, the dryness of the weather, and the proximity of the building to the railroad ; and that what might be ordinary care on a still and wet day might not be in a windy and dry one, and when near to combustible matter. The question still being what care a prudent man would exercise,- in^precís'áy similar circumstances. .:,/
    “ 4. That if the jury find that the plaintiff’s building ivas set on fire by sparks from defendant’s engine, such fact is prima facie evidence of negligence on the part of delendant, provided the sparks were continuously emitted, were of an unusual quantity and size, impossible but for displaced preventives or negligence in using the engine and fixtures.
    “ 8. That the lawful use of property in an exposed and hazardous position in an ordinary manner, and for the purposes for which such property is designated, would not be negligence on the part of the plaintiff; provided such property could be so used safely by taking the ordinary care of a prudent man.”
    To each of which paragraphs of the charge of the Court, as requested by the counsel for the said plaintiff, and as above numbered, 3, 4 and 8, the counsel for the defendant excepted. The jury, under the charge of the Court, found a verdict for the plaintiff for the sum of five hundred and thirty-five dollars. The judgment entered thereon is brought into this Court by writ of error.

      Stuart & Edwards and G. V. iV". Lothrop, for plaintiff in error.
    I. It is always the right of a party to sustain his witness whose credibility is assailed; more, it is his duty, when producing a witness and his sworn statements in support of his case, jealously to guard his reputation for veracity from unfounded aspersion.

      a. The plaintiff below offered the testimony of several witnesses as rebutting; the point to which they were examined, was, that on the railroad track at the Knight place the fire at Anderson’s could not be seen. Offered as rebutting testimony, it assumes that the point which it rebuts, to wit: that Thompson could and did see the fire from that point, had been testified to by Thompson.
    The point involved in the assumed contradiction of Thompson’s testimony is material; he testifies that he first saw the fire before his train reached it, which, if true, discharges the defendant’s liability, but if he makes the point of discovery an impossible one, as these rebutting witnesses testify, the credibility of his whole statement is affected.

      b. The proposition then to recall the witness Thompson, and to show by him that what he did testify to, was misunderstood and misrepresented; and showing further what his testimony was when on the stand, was no more nor less than a proposition to sustain Thompson’s credibility against the attacks made upon it. The re-examination of the witness Thompson, was the right of the defendant and the ruling of the Court thereon was not an exercise of discretion.
    The decision of the Court denying the right of the defendant below to re-examine the witness, as proposed, was erroneous.
    II. The witness himself has the right to the protection of the Court from unjust attacks upon his reputation or credibility. The mandate of the Court places him upon the stand as a witness. What he does not say, he cannot be assumed to have said upon the stand, as the foundation for an impeachment, and it is the witness’s privilege to be allowed, when so misunderstood or misinterpreted, to explain or correct misstatements. The witness can claim his privilege as of right, and it is the duty of the Court to grant him a hearing. See as to right of a witness in vindication of his credit, reasoning of Justice Best, quoted 1st vol. Phillips ed.,p. 306; Clark v. Vorce, 15 Wend., 193.

    III. The charge of the Court, as in paragraph number 3 of the charge, as requested by plaintiff below, and which is assigned as error, was clearly erroneous, inasmuch as it assumes as possible, and as a duty, what in the nature of the case is impossible, i. e., that the defendant in the running of its engines and trains over its track, can at its will and pleasure, avoid or limit the accidental hazards which spring from wind and weather, and should be held liable for the chance injuries or damages thereby inflicted.
    This is not, as we understand it, the law or rule of liability of railroad companies for injuries resulting from moving trains.

      a. It cannot be said that because the wind is in a particular direction and brisk, and the weather dry that trains should stop running in subordination to the elements. Such a rule would be the destruction of railroads. And yet the charge of the Court would fairly imply such necessity, when to guard from the increased risk from such supposed conditions of wind and weather, any change of course or direction is impossible.
    5. The rule as laid down in such charge as applied to a steam vessel on water might be correct, and for the very obvious reason that the vessel’s course is under the direction of the master, and is not restricted as on a railroad track to an undeviating line. The vessel’s progress may be either restrained or stopped, without, for that reason incurring the hazard of collision with other vessels. — Cook v. The Champlain Transportation Co., 1 Denio 91.

    The Court below, in its charge, seems to have adopted the rule in the case cited, as the rule in this case. The case cited was a case of damages from burning of plaintiff’s mill, situated a few feet from a basin on Lake Champlain, from sparks from defendant’s steam vessel passing in the basin. The Court in the case cited, in the same connection further charged, what in this case the Court omitted, as follows: “ That the jury were to pass upon those questions, and to determine whether the defendant’s agents adopted the ordinary precautions, such as are usual in similar cases to prevent injuries.”

      c. In the case of Fero v. The Buffalo and State Line Railroad Company, 22 N. Y., 209, the Court establishes the rule as applied to the facts of that case. It was the case of an engine stopping, and for the time stationary upon its track in a village, and near to combustible wooden buildings, towards which a brisk wind impelled sparks from the engine. The Court held the defendant liable for the damages on the ground of the want of proper care.
    In this case the running of the train compelled the approach, not to be avoided, near to the building burned, of the engine in passing upon its line of track; and the degree of care to be exercised must be limited and controlled by the change of circumstances between the cases.

      d. The charge of the Court now being considered is qualified as follows: "The question still being what care a prudent man would exercise in precisely similar circumstances.” This qualification conveys no meaning which would lead the jury properly to construe what precedes it.
    The qualification that the .degree of care should be such as a prudent man would exercise in precisely similar circumstances, would tend to confuse rather than enlighten the jury, and as a definition of the degree of care to be exercised, it is fairly and justly commented on in Kelsey v. Barney, 2 Kernan, 425.

    IY. There was error in the charge of the Court, that, if the jury find that plaintiff’s building was set on fire by sparks from defendant’s engine, such fact is prima facie evidence of negligence on the part of defendant. This is not the American doctrine on the question of railway liability for fires communicated by their engines. The American doctrine, except where railway companies are made liable for such damages by statute, is now well settled that the business of railways being lawful, no presumption of negligence arises from the fact of fire being communicated by their engines. — Redfield on Railways, 1st vol. 3d ed. 151, 165; Rood v. N. Y. & Erie Railway, 18 Barb. 80; Lyman v. Boston & W. Railway, 4 Cush. 288; Burrough v. Housatonic Railway, 15 Conn. R. 124; B. & S. R. v. Woodruff, 1 Maryland, 242.

    This portion of the charge we are now considering, and as requested by the plaintiff, the Court qualified by adding as a limitation thereon, a proviso, to wit: “Provided the sparks were continuously emitted, were of an unusual quantity and size, impossible but for displaced preventives, or negligence in using the engines and fixtures.” This proviso is vague and susceptible of different constructions.
    Y. The charge of the Court, designated as paragraph 8, is not correct. The charge, as applied to the facts in proof in this case, is this: If the jury should find this property to be in an exposed and hazardous position, and used in an ordinary manner, and for the purposes for which said property is designed, and provided they find that this property could have been used safely by taking the ordinary care of a prudent man, then, in the use which the plaintiff did make of such property, he was not guilty of negligence.
    The true rule of law is, and so the jury should have been instructed, that, in the use of property in an exposed or hazardous position, the measure of responsibility is extraordinary, or the highest degree of care.

      May <& Buck, for defendant in error.
    I. There was no error on the part of the Court in refusing to admit the testimony of the witness Thompson. In general the defendant has no right to introduce any further proof after resting his case, unless the plaintiff shall introduce new matter by way of rebutting evidence.
    The defendants not being entitled as a matter of right, to the testimony which they offered to introduce, its admission or exclusion was a matter resting in the discretion of the Circuit Judge; and his decision, rejecting such testimony, will not be reviewed by this Court. — D. & M. R. R. Co., v. Van Steinburg, 17 Mich., 99; People v. Mather, 4 Wendell, 229; Law v. Merrills, 6 Wendell, 268, 276, 277, 280, 281, 282.

    The testimony offered to be given by the witness Thompson, was objectionable for another reason. The witness had given his testimony in relation to the point on the railroad from which he first saw the fire, and it was for the jury, not the witness, to say what he had stated on his former examination. — Law v. Merrills, 6 Wendell, 276, 281. — Nor was the witness entitled to make the statement which he offered to make, as an explanation of his testimony. He did not offer to take the stand for the purpose of correcting or explaining his former testimony, but for the purpose of stating what he intended to testify to, and what he did testify. Such a statement could not, with any propriety, be call an explanation.
    II. There was no error in the charge of the Court as given in the 3d request on the part of the plaintiff. This paragraph of the charge is, excepting the last sentence, in almost the exact words used by the Circuit Judge in his charge to the jury, in the case of Cook v. Champ. Trans. Co., 1 Denio, 91, which charge was held t.o be correct by the Supreme Court in that state. And the facts appearing in the case of Cook v. Champlain Trans., Co., refute the theory of the plaintiff in error, that this rule does not apply to “railroad trains running from necessity upon an undeviating line.” — 1 Denio, 95. — The railroad company are bound to use more care in regard to fires in a very dry time, or where property is very much exposed. — 1 Redfield on Railways, 451 n 3, 452, 453 n 9; Huyett v. Phil. R. Railway, 23 Penn. St., 373.

    III. There was no error in the’ 4th paragraph of the charge of the Court, as requested by plaintiff’s counsel. The charge without the proviso would have been correct under the facts proved in this case. All other probable modes of accounting for the fire had been disproved, and the fact that sparks of unusual size and quantity were emitted by defendant’s engine, had been established; and the onus was thereby thrown upon the defendant to prove that the fire was not communicated by their engines, or that proper caution was used. — 1 Redfield on Railways, 453; Sheldon v. H. R. R., 4 Kernan, 218; Piggott v. Eastern Co’s Railway Co., 3 C. B., 229; 2 Gr. Ev. § 230; 1 Hill, on Torts, 185, § Ifi. — But this paragraph of the charge when taken as a whole, was certainly sufficiently favorable to the defendant. The Circuit Judge charged by this paragraph, in effect, that if the jury found that sparks were continuously emitted from defendant’s engine, were of an unusual quantity and size, and could not possibly have escaped but for displaced preventives, or negligence in using the engine and fixtures, and that such sparks set fire to the plaintiff’s building, such facts constituted prima facie evidence of negligence on the part of the defendant.
    IV. The charge of the Circuit Judge, given in compliance with the Sth request of plaintiff’s counsel, was correct, as applied to the facts proved upon the trial. That the business of manufacturing sorghum syrup is a lawful business, and might properly be engaged in by the plaintiff, was not questioned in the Court below, and cannot be here; and the jury were sufficiently instructed as to the effect of any negligence on the part of the plaintiff. — 1 Redfield on Railways, 468, § 7; Huyett v. P. and R. R. 23 Penn. St., 273; Cook v. Champ. Trans. Co., 1 Denio, 99, 100, 101.

   Campbell, Ch. J.

Errors are assigned on rulings and charges of the Court upon the trial.

A witness having testified and been allowed to leave the stand, several witnesses on the other side were called to show that he could not have been able to see certain things from a place where it was claimed he had said he was, at the time when he observed the circumstances which he narrated. An application was then made to allow him to take the stand to show that he had not stated what was assumed, and that he had been misunderstood, and to show what he had said, or intended and supposed he said. This was not allowed.

There is certainly power in a Court to allow a witness to be recalled at his own request, or otherwise to explain his testimony and to correct alleged misapprehensions as to what he has said or meant, and it is often a very necessary power to prevent injustice. But we. have not found any authority rendering it imperative on courts to permit it. The jury are expected to remember what has been sworn to, and the correction will not supersede their conviction of the original statements, unless they are satisfied it ought to do so. We cannot, therefore, hold that there has been any error in law on this question, and we have no power to review the discretion of the Circuit Judge.

The action was brought against the railroad company for negligence in causing the sorghum factory of Anderson to be burned by sparks from their engines passing along the railroad, which was separated by a highway and some intervening ground from the premises destroyed, which had upon them about the factory a considerable amount of dry and combustible stalks and similar material.

The Court, under objection, charged the jury that regard must be had to the actual state of things at the time; the force and direction of the'wind; the dryness of the weather; and the proximity of the building to the railroad; and that what might be ordinary care on a still and wet day might not be on a windy and dry one, and when near to combustible matter. The question still being what care a prudent man would exercise in precisely similar circumstances.

There had been full testimony in the case upon the character of the engines and stacks, and the use of the proper means to render them as secure as possible from doing mischief by the discharge of sparks, and this charge was independent of any question as to the quality and character of these equipments, as suitable to be used.

We think the rule laid down was incorrect. Vehicles that can choose their track, and can deviate whenever and wherever it is desired, may properly be required to be used differently, according to circumstances. But the necessity of running- railroad cars with regularity and uniformity is not a matter of convenience merely. The business cannot be done at all, unless calculations are made upon the movements of trains. And the risks attendant upon a disturbance of that regularity are risks of human life, and not mere business delays. It would not only be vexatious, but in the highest degree dangerous to make the movements of cars vary with wind and weather. Those who establish themselves in the neighborhood of railroads must know that the trains are expected to run with regularity, and if there are special risks arising from no want of care in the proper equipment and management of engines and trains, those risks are not chargeable ’ to the railroad, but are incident to the situation. And extra care which they demand, must therefore devolve upon those whose interests require the increased vigilance; and the consequences of not exercising "it must fall upon the owner, because the railroad is not in fault. We think the judgment must be reversed on this ground.

The other questions, so far as they are material, depend upon very similar considerations, and what we have said will probably be sufficient to prevent any misapprehension upon any of them likely to arise in another trial. We do not think it necessary to consider them farther.

Christiancy and Graves, JJ. concurred.

Cooley, J.

As applicable to the circumstances of this case, I think the charge complained of was calculated to mislead, and therefore I concur in the reversal.


source: Caselaw Access Project

author: Graves, J. Chrjstiancy, J.

license: Public Domain

text:
    James Tripp v. Frederick Hasceig.

      Deed: Unsevered Crops. Ripe crops, although no longer drawing nourishment from the ground, will, if still unsevered, pass by a conveyance of the land.

      Reforming deeds in equity : Mistake. To establish, according to principles administered by courts of equity a mistake, in order to obtain the reformation of a deed, there must be not only an error on both sides, but the mistake must be admitted or directly proved.

      Heard April 19.

      Decided April 26.

      Error to Kalamazoo Circuit.
    James Tripp on the 13th day of December, 1865, conveyed to Frederick Hasceig a farm in Kalamazoo County, on which at the time of the execution.and delivery of the deed there was a field of standing corn; which remained unharvested until the spring following, when the defendant gathered it. The plaintiff claims that the corn having been left standing in the field, after the proper season for harvesting, at the time of the conveyance of the premises, did not pass under the deed, and brings this action of trover for the conversion of it by the defendant. The questions in controversy were presented in the Court below upon exceptions to the charge of the Circuit Judge, namely:
    1. “ As between grantor and grantee by warranty, the law gives to the latter the growing crops, as in case of the wheat in this case, sown among the ripe corn that same fall. We think the law is-equally explicit as to crops ripe and ready for harvest in their natural season. We apprehend the rule is not affected by the fact that-the corn is alive and drawing nourishment from the soil, or dead, yet standing implanted therein, any more than by the fact that a tree standing in the forest is dead or alive.”
    2. “If the vendor, before sale and delivery, has operated a severance, as by harvesting and burying potatoes on the premises or boxing them up, then the property in them would not be transferred by the deed. Without this we think he is bound to take such property and appropriate it to his own use, before delivering the possession by deed, or else to shield his rights by actual reservation in the conveyance itself.”
    3. “ We think then, that standing upon authority where we have it, and reasoning upon analogy where direct authority fails us, we must conclude that when a ripe or over ripe crop is left standing in the field, at the time a deed is executed and delivered conveying the land on which such crop stands, and there is no reservation in the deed, the crop passes as a part of the realty or freehold.”

      4. “Any contemporaneous agreement in parol between the parties, upon no new and independent consideration in reference to property affected as an interest in the land directly by the deed, can have no validity as affecting rights vested by the deed in either party; both because a deed cannot thus be attacked by parol, and because such agreement, if before, is merged in the deed; if after, is without consideration.”
    These charges were excepted to in the Court below; the jury found for the defendant, and the judgment entered thereon is brought into this Court by writ of error.

      Severens & Burrows, for plaintiff in error.
    Two questions will be principally discussed: first, whether by a deed of real estate, given under the circumstances in which this conveyance was made, would ipso facto operate to convey this over ripe crop of corn left standing through the winter on the stalk; and second, whether, if it would so pass, it was not competent for the parties to make a suppletory agreement at the time of giving the deed, whereby the corn, though the deed would operate to convey it, would be yielded by the vendee to the vendor as part of the consideration for the conveyance. The Court below charged the jury in the affirmative of the first proposition, and the negative of the second, thus substantially disposing of the case.
    I. The question whether a groioing crop passes by a deed, in which there is no reservation, is not an open one. And it is not contended that a mere parol reservation could be proved to contradict the deed, presuming that this Court would hold, applying the ruling in Vandekarr v. Thompson, (19 Mich., 82,) and in conformity with the preponderance of authority, that the legal effect of the deed could not be gainsaid by parol.

      But, be the rule upon that subject as it may, the reason of the rule, that a growing crop passes by the deed, wholly fails when applied to the case of a crop left standing over after maturity, for the purposes of convenience, or as a mode of preserving the crop, all vital connection with the soil being completely destroyed. The reason why a growing crop passes is that it would be inconsistent with the interest in the land conveyed by the deed, that the vendor should retain the right to keep this crop upon it until ripe, drawing therefrom the sustenance necessary to mature it.
    We say that the Court below misapplied the rule to a state of facts, in which the reason of it failed, and produced a result so absurd and unjust, and so manifestly against what the whole conduct of the parties showed they intended, as to force the conviction that there must have been a miscarriage of the law. That a different rule applies to the case of a mattered crop, from that which governs the case of a growing one, was held in Powell v. Rich, 41 Ill., 466-469.

    II. Supposing, however, that the title to the crop would pass, the second question presents itself, which is whether it is not competent to the parties to agree, at the time of the conveyance, that as part of the consideration the vendee will give to the vendor the crop, it being borne in mind that the crop is an incident merely, capable of being granted without deed. The Supreme Court of Indiana held, in a very recent case, that it is competent in precisely such a case, Heavilon v. Heavilon, 29 Ind., 509.

    That the principle relative to contradicting a deed by parol is not violated by showing a suppletory agreement, although it relates to the same subject, provided, (and this seems to be the condition), the deed or writing is allowed to have its full legal effect according to its terms, the authorities are full and decisive: Jeffrey v. Walton, 1 Stark. 279; Harris v. Rickett, 4 Hurls & Norm. 1; Malpus v. Lowdon & Co., Railway Law Rep., 1 Com. Pl., 336; Wake v. Harr op, 1 H. & C., 202; Wallis v. Littell, 11 Com. B.

      N. S., 369; Rohan v. Hanson, 11 Cush., 44; Hahn v. Doolittle, 18 Wis., 196; Taylor v. Galland, 3 Greene, Ia., 22; Frey v. Vanderhoof, 15 Wis., 397; Fisk v. McGregory, 34 N. H., 414; Miller v. Fichthorn, 31 Penn. St., 260; Lindsley v. Lovely, 26 Vt., 123; Parsons v. Camp, 11 Conn., 525; Collins v. Tillou, 26 Conn., 368.

    The'formal deed of conveyance being merely for the purpose of transferring the title, it would seem to fall within the principle of the cases relating to bills of sale and receipted bills of parcels: Pickard v. McCormick, 11 Mich., 68; Rowe v. Wright, 12 Mich., 289. It was so held in the cases above cited from 15 Wis., 397; 31 Penn. St., 260; 34 N. H., 414 ; and 26 Conn., 368.

    And the decisions of this Court have been uniform in holding, that when the inquiry was one relating to the consideration of the contract or conveyance, a suppletory agreement might be shown, notwithstanding it might result in the ultimate consequence of establishing a countervailing right, that would to some extent neutralize the obligation of the writing or the effect of the conveyance: Bennett v. Beidler, 16 Mich., 150; Bowker v. Johnson, 17 Mich., 42, and cases cited.

    III. A third ground of objection to the charge exists in the action of the Court below in closing the case against the plaintiff, by instructing the jury that a subsequent agreement by the vendee, that the vendor should have the corn, would be void for want of consideration. This was a mistake. If we were held wrong in both our preceding points, and we could establish no legal right in the plaintiff, either by showing that the corn did not pass by the deed, or that it was competent to show that the vendor took it as part of the consideration; yet there was enough to warrant the jury in finding that the defendant was under an equitable obligation to have the contract corrected, and that was a sufficient consideration. Kennard v. George, 44 N. H., 440; Beardsley v. Knight, 10 Vt., 185; Canedy v. Marcy, 13

      Gray, 373; Stedwell v. Anderson, 21 Conn., 139; Evans v. Strode, 11 Ohio, 480. It was in evidence that the defendant had admitted that the corn belonged to the plaintiff. That alone made the plaintiff’s case as strong as it was in the case of Austin v. Sawyer, 9 Cow. 39, when the Court held that a sufficient basis of recovery.

      Thomas G. Gutter and Thomas B. Sherwood for defendant in error.
    I. The corn standing upon the hill, unharvested, and not having been severed from the soil, was a part of the realty, and passed by the deed. 4th Kent. Qom. 467 J 1 Suyden on Vendors, p. 1$ ; 1 Washburne on Real Property, p. 4 ; 2, Id. 625 ; 8 Johns., 222 ; 10 Ind., 465 ; 12 Missouri, 457 ; 17 Piclc. 192; 2 Hill, 11$. This cites approvingly 8 N. R. 2 B. & G., 86; 8 lY. H., 508. See p. 507; 19 Pick, 814.

    II. The 2d alleged error has no relevancy to the case, and, whether erroneous or not, the judgment will not be reversed for such alleged' error. 8 Mich. 55, 12 Id. J$7, 18 Id. 70, 14 Id. 897, 17 Id. J$5. But the charge was correct. 17 Pick. 192.

    III. As to the 3d error assigned, see cases cited under first point. All oral negotiations or stipulations between the parties which precede or accompany the deed, are regarded as merged in it. 11 Mass. 27 ; 1 Tenn. 1741 15 Pick. 58; 14 Wen. 199; 12 Wen. 44-6; 4 Gonn. J$8; 1 Penn. 417; 1 Johns. Oh. 282, J$5, 4-29; 7 Pick. 29; 17 Mass. 578-4; 4 Greenleaf, 497; 1 Gowen 122; 2 Pay, 187; 1 Ala. Rep. 270; 12 Wen. Rep. 566; 11 Gonn. 850-1-2-8 ; Gowen & Hill’s notes 1467-1470.

   Graves, J.

The plaintiff in error sued Hasceig for the alleged conversion of a quantity of standing corn, which Tripp claimed as his property, and upon the trial a verdict passed for Hasceig. Tripp now brings error and insists that tbe Circuit Judge erred in charging the jury, and he asks that the judgment be reversed therefor.

The evidence conduced to show that Tripp, being the owner of a farm in Kalamazoo county, on which he resided and on which he had raised a field of corn in the season of 1865, conveyed the farm to defendant about the 13th of December, in the same year, by warranty deed, while the corn was still standing, unsevered, where it grew, and without inserting in the deed any exception or reservation ; and that Hasceig took and appropriated a part of the crop as properly conveyed to him by the deed. It was claimed by Tripp on the trial that the crop, being over ripe when the deed was given, did not pass by the conveyance, but the Circuit Judge advised the jury that the corn, though ripe and no longer deriving nourishment from the ground, would, if still attached to the soil, pass by conveyance of the land; and this is one of the rulings complained of.

We think this instruction was right, and we concur in the suggestion of the Circuit Judge, that whether the corn would pass or not, could no more depend upon its maturity or immaturity, than the passage of a standing forest tree by the conveyance of the land, would depend upon whether the tree was living or dead.

It is true that the authorities in alluding to this subject very generally use the words growing crops, as those embraced by a conveyance of the land, but this expression appears to have been commonly employed to distinguish crops still attached to the ground, rather than to mark any distinction between ripe and unripe crops.

In some cases, where the question has been raised under the statute of frauds, as to the validity of verbal sales of unsevered crops, a distinction has been drawn between such as were fit for harvest, and such as were not, upon the supposition that the former would not be within the statute, while the latter would be embraced by it. See cases referred to in Austin v. Sawyer, 9 Cow. R. 39. In Austin v. Sawyer, however, Chief Justice Savage seems to have rejected the distinction, as he held that a verbal sale of growing crops was valid in New York.

But one case has been cited, or is remembered, in which it has been intimated that a.mature and unsevered crop, would, because of its being ripe, remain in the grantor of the land, on an absolute conveyance of the premises without exception or reservation; and that is the ease of Powell v. Rich, 41 Ill., 466, and the point was not essential to the decision there.

There are many authorities, however, opposed to the distinction suggested in that case. 2 Bl. Com. 122, note 3; Broom’s Maxims, 354 margin.

In Kittredge v. Woods, 3 N. H. 503, Judge Richardson cites Wentworth, 59, for the proposition that “when the land is sold and conveyed without any reservation, whatever crop is upon the land, passes,” and after stating that ripe grain in the held is subject to execution as a chattel, Judge Richardson adds: “ Yet no doubt seems ever to have been entertained that it passes with the land when sold without any reservation.” And in the case of Heavilon v. Heavilon, 29 Ind. 509, cited by plaintiff’s counsel on another ground, the Court expressly admit that until severance, the crop, as between vendor and purchaser of the land, is part of the realty. Indeed, the authorities are quite decisive that, whether the crop of the seller of the farm goes with the land to the purchaser of the latter, when there is no reservation or exception, depends upon whether the crop is at the time attached to the soil, and not upon its condition as to maturity. And this seems to be the most natural and most practical rule. When parties are bargaining about land, the slightest observation will discover whether the crops are severed or not, and there will be no room for question or mistake as to whether they belong with the land or not, if owned by the vendor.

If, however, the crops are to be considered as land or personal chattels, as they continue or do not continue to draw nourishment from the soil, the instances will be numerous in which very difficult inquiries will be requisite to settle the point.

It was further urged by plaintiff in error that, if it should be considered that the corn would pass by the deed, still the jury should have been allowed to inquire whether the parties did not enter into a contemporaneous verbal agreement, by which the grain was to belong to Tripp as part of the consideration for the farm. Without pausing to consider whether the plaintiff could be permitted to make the proof suggested, or could support his action by any arrangement like that supposed, it is quite sufficient to observe that there does not appear to have been any evidence fairly tending to show the existence of such an agreement. The plaintiff was himself on the stand, and yet he did not hint at the existence of a bargain of that kind.

It was finally insisted that the charge of the Court was erroneous in stating that a subsequent agreement by the vendee, that the vendor should have the corn, would be void for want of consideration; and we are told that the error on this point is shown by the circumstance that there was enough to warrant the jury in finding that defendant was under an equitable obligation, to have the deed so reformed as to except the corn, and that this fact constituted a sufficient consideration for an agreement by Hasceig, that the crop should belong to Tripp.

This argument assumes, that if the non-reservation of the corn in the deed was by mistake satisfactorily ascertained, or admitted, that then an equity would arise for the correction of the deed, which in turn would be an adequate consideration to support a subsequent agreement by Hasceig, that the grain should belong to Tripp. We need not examine the validity of this view, since it is quite manifest that the case contemplated by it, is not found in the record before us.

The position taken implies that there was evidence before the jury to establish, according to the requirements of a court of equity, a mistake in the deed in not reserving the corn, and that there was also evidence conducing to prove a subsequent agreement that Tripp should have the corn, and resting for consideration on the right to have the deed corrected in equity.

There was a little evidence favoring the idea of a subsequent parol recognition by Hasceig of the right of Tripp to the corn under the conveyance of the land, but we look in vain for evidence of the assumed mistake in the deed. '

It is well settled that to raise an equity to correct a deed, there must not only be an error on both sides, but the mistake must be either admitted or directly proved. Adam’s Eq. 171 margin; Fry on Specif. Per. 2d Am. Ed. p. 812 top and note 11. The language of several of the cases cited by plaintiff’s counsel is to the same effect. In Kennard v. George, 44 N. H., 440, the Court say that the mistake must be clearly proved. In Canedy v. Marcy, 13 Gray, 373, it is said that the Court has jurisdiction to reform a deed upon clear oral evidence of the mistalce, and in Beardsley v. Knight 10 Vt. 185, the expression is still stronger. It is there declared that the Court will correct a mistake in a conveyance “ when undeniably provedf and that “unless it be so proved it will not interfere.” It is very certain that the record before ns fails to show that a mistake in the deed was established on the trial below, or that any evidence was there introduced, fairly tending to show that fact, and therefore upon the theory of plaintiff’s counsel, there ivas no evidence of any consideration for a subsequént agreement by Hasceig, that Tripp should have the corn.

The charge of the Court should be construed in the light of the evidence before the jury, and when viewed in this way we discover nothing of which the plaintiff can justly complain.

In order to preclude all misapprehension as to the scope of this decision, we deem it not improper to add, that we express no opinion as to whether Tripp would be liable to Hasceig for any part of the crop appropriated by the former, with the acquiescence of the latter, under a verbal reservation.

The judgment of the Court below is affirmed with costs.

Campbell, Ch. J. and Cooley, J., concurred.

Chrjstiancy, J.

I concur with my brethren in the opinion of my brother Graves; but had it appeared in the case that it was the custom of the country where the farm was situated, (as it is in some of the Western states), to keep the ripe corn in the field for the winter, or till wanted for use or market, and to be taken only on the like occasions or for the like reasons, as if stored in the crib or granary, — thus using the field merely as a substitute for such crib or granary, — I am inclined to think I might have agreed in the opinion intimated by the Supreme Court of Illinois in Powell v. Rich, 41 Ill., 466, cited by my brother Graves.


author: Graves, J.

text:
    Sarah J. Barker v. James G. Thorn.

      Practice in the Circuit Court: Affidavit for attachment. The statute allowing proceedings by attachment, which provides,— (Comp. Laws § MIS), — that an affidavit must be annexed to the writ “ stating that the defendant is indebted to the plaintiff, and specifying the amount of such indebtedness, as near sb may be, over and above all legal set offs” — and,—(§ MU5), that the amount stated “ shall exceed the sum of one hundred dollars; ” is substantially complied with by the allegation that the defendant is indebted to the plaintiff — who makes the affidavit, — in the sum of three thousand dollars “ as near as can be specified by this deponent”.

      Heard April 21.

      Decided April 26.

      Error to Calhoun Circuit.
    This suit was commenced by a writ of attachment, to which was annexed the affidavit of the plaintiff, as follows:

      State of Michigan, County of Calhoun, ss. Sarah J. Barker, plaintiff in the writ hereunto annexed, being duly sworn, deposes and says, that James G-. Thorn, the defendant therein, is indebted to the plaintiff, this deponent, in the sum of three thousand dollai’S, as near as can be specified by this deponent, over and above all legal set off, and that the same is due upon contract implied, and this deponent further says, that she has good reason to believe, and does believe, that the defendant, James G-. Thorn, is not a resident of this State, and has not resided therein for three months immediately preceding the time of making this affidavit, June 29, 1867.”
    The defendant moved the Court below to set aside the writ on the ground that it was issued without any sufficient' affidavit, and that the affidavit does not show with sufficient- certainty, an issue certain within the jurisdiction of the Court, authorizing the issuing of the writ.
    The Circuit Court granted the motion, and the plaintiff in attachment brings the record into this Court by writ of error.

      John G. Patterson, for plaintiff in error.
    The affidavit of the plaintiff complies with the requirements of the statute, and is sufficient to give the Circuit Court jurisdiction. — Laws of 1861, 478, § 2; 2 Comp. Laws, ch. 140; Dr alee on Attachments, § 95 (last part); Hughes v. Marten, 1 Ark., 211; Hughes v. Stennet, 9 Ark., 386; Phelps v. Young, 1 Breese, 255; Dralee on Attachments, § 87, note, and 106.

    Where jurisdiction depends upon the amount of damages claimed, the amount mentioned in the writ or declaration governs. — Strong v. Daniels, 3 Mich., 466 ; Sherman v. Clark,

      3 McLean, 91 ; Newton v. Danbury, 3 Conn. 553; Gordon v. Longest, 16 Peters, 1041 Smets v. Williams, 4 Paige, 364 —An affidavit for an attachment must be. annexed to the writ, and the amount mentioned in the affidavit, the writ referring thereto, must govern. — Laws of 1861, 478, § 2.

    The statute does not require that the affidavit shall state, in hcec verba, that the amount exceeds one hundred dollars. — 2 Comp. Laws, p. 1270, § 4Uf>-

    The substance of the proof, that the amount exceeds one hundred dollars, is sufficient. That three thousand dollars, the whole, exceeds and is greater than one hundred dollars, one of its parts, neither requires nor admits of proof. The Circuit Court is a court of common law and general jurisdiction, and jurisdiction will be presumed until the contrary is shown. — Greenvault v. F. & M. Bank, 2 Doug. 507, 508.

      T. G. Pray, for defendant in error.
    The affidavit is insufficient to give the Court jurisdiction. It must, upon its face, show a mm certain within the jurisdiction of the Court, and affirmatively show, prima facie, that the affiant has the means of stating that sum certain “as near as may be.”
    It is not swearing or proving that the amount is so much, “ as near as may be,” and the question 'is to prove what the amount’ is “ as near as may be ” before it is ascertained by legal adjudication. The matter must be shown by affidavit so that it appears, prima facie, that the amount is set forth as near as may be. — 1 Hill, 204, 206 ; 3 McLean, 326; 6 Hill, 314; 20 N. Y., 354; 25 N. Y., 624 ; 7 Hill, 187; Lothrop et al. v. Snyder, 16 Wis., 293. — The language of the statute is that the plaintiff, or some one in his behalf, shall make an affidavit stating that the defendant therein is indebted to the plaintiff and specifying the amount “as near as may be.” If the amount be not over $100, the Circuit would not have jurisdiction by the Con
      stitution. — Const., § 18, art. 6. — And the writ would be expressly forbidden by the statute. — § 4145 Comp. Laws, p. 1270.

    The proceeding by attachment is a harsh remedy, statutory in character, and is to be construed accordingly. — 2 Mich;, 418; 1 Doug. 380, 850 ; 2 Doug. 98, 498 ; 3 Mich., 277, 535; 5 Mich., 98, 409 ; 8 Mich., 64; 10 Mich., 264, 409. — §§ 4148 and 4145 are to be considered together, and they show plainly with what care the Legislature guarded against abuse and sought to confine parties adopting the remedy to the jurisdiction.
    That the affidavit is a jurisdictional prerequisite, is apparent from the statute and cases cited. The jurisdiction is made to depend upon the amount, and that is to be shown by affidavit, before the writ can lawfully issue. The amount is to be shown “ as near as it can be.” This is the end required, and the party must see to it that the means are adequate. If the required affidavit could not be made, the plaintiff would not be legally “entitled to the benefit of the action.” — 2 Mich., 329.

    The language and object of the statute are to be observed. The amount is to be “specified as near as may be,” and there is no qualification in the statute and none can be imported into it. — 12 Adol. & Ellis, 468; 8 Queen’s B. 920; 4 Scott, N. C., 581; 2 Adol. & Ellis, 875 ; 4 Scott, N. C., 188 ; 1 Strange, 69. — The language is not that the amount is to be specified as near as it may be stated by any one willing to make the affidavit, or as near as any one may be able to state it, but the person who does make it must be able to specify it “as near as may be,” and it ought to appear affirmatively on the face of the affidavit, prima facie, that the affiant is able and does specify the amount “ as near as may be.” — 1 Hill, 204, %06. — As to the certainty required in affidavits: — 8 Caines’ Rep., 105; 1 Chitty’s Rep., 831; 18 E. C. L., 99.

   Graves, J.

In this case the only question is upon the sufficiency of an affidavit upon which an attachment issued under chapter 140 of the Compiled Laws. The Court below dismissed the writ, upon the ground, that the affidavit was fatally defective, and the plaintiff assigns this for error.

The statute allowing the proceeding by attachment provides among other things, that the plaintiff,- or some one in his behalf shall make and annex to the writ an affidavit stating that the defendant is indebted to the plaintiff, and specifying the amount of such indebtedness as near as may be over and above all legal set offs,” &c. — § IflliS Com. L. — And further that no writ shall be issued “ unless the amount stated in such affidavit ” shall exceed the sum of one hundred dollars. — § Iff Iff Com. L.

By a series of decisions this' Court has determined that the statutory requirements respecting the affidavit must be strictly complied with.

Guided by the spirit of these decisions, by the nature of the proceeding, and the phraseology of the law, I have been led to conclude, that in order that a party may avail himself of this remedy, it must be shown affirmatively and positively on the face of the affidavit, that a sum certain above one hundred dollars, is due to the plaintiff over and above all legal set offs; and that the sense and meaning of the statute will not allow the employment of the words of the provision, or words of equivalent import. I have supposed that the paragraph requiring the affiant to specify the amount, was intended to point out the end to be accomplished; and not to prescribe a formula for the affidavit.

According to this view an affidavit in the words of the statute, or otherwise drawn with some qualification, which must leave the Court uninformed by the oath of the affiant as to his ability to state the real amount, would be defective in a jurisdictional point: the Court would neither have a positive statement of the amount, nor any evidence, on oath, as to the circumstances covered by the qualification, or the interpretation put upon it by the affiant.

The affidavit in the present case states that the defendant is indebted to the plaintiff in the sum of three thous- and dollars, “ as near as can be specified by this deponent,” and since the Court could not know the ability of the affiant to fix the real amount, in the absence of any showing on that subject, it has seemed to me that the qualification in the affidavit, left the- proof essentially defective.

My brethren, however, think differently. They are satisfied that a construction which would make this affidavit insufficient on the ground mentioned, would conflict with the practice of the courts, and the uniform opinion of the bar, for the whole period in which the proceeding by attachment has been authorized. And they are likewise of opinion, that the affidavit substantially meets the design of the statute, and proves with reasonable certainty, for the purpose of authorizing the writ, that there was an amount exceeding one hundred dollars due from the defendant to the plaintiff, when the affidavit was made.

From this it follows that the judgment of the Court below must be reversed with costs.

The other Justices concurred.


author: Campbell, Ch. J.

text:
    Thomas P. Eldridge v. Solomon B. Bliss.

      Breach of contract: Separate covenants. Covenants . in a contract "by which one party agrees to pay taxes on land belonging to the other; and also that he will make up to the other any deficiency, on the sale of the land below a specified sum; are separate covenants; and the breach of the covenant to pay taxes can have no effect on the conditions relating to the other.

      Sale of real estate to fix contract liabilities ,* Notice. In making a sale of real estate in order to fix a contract liability, the sale must be made within a reasonable time, and conducted in a reasonable manner. And if the sale be by auction the analogies of sales under legal process will furnish the rule as to notice • and these prescribe a notice of, at least, six weeks.

      Heard April 21.

      Decided April 26.

      Error to Saginaw Circuit.
    This was an action of special assumpsit brought by Thomas P. Eldridge, against Solomon B. Bliss. The facts and the judgment of the Court below, are stated in the finding of the Circuit Judge, and his conclusions of law thereon; as follow:
    “ On the 11th day of January, 1867, Bliss, Janes & Co., of which firm the defendant was a member, were indebted to George Bliss & Co., of which firm the plaintiff was a member’, in the sum of nine or ten thousand dollars.
    “ On that day the defendant caused to be conveyed to the plaintiff lots numbered three, four, thirteen and fourteen, in block number thirteen, in Glasby, Gallagher and Little’s addition to the city of East Saginaw, in Saginaw County, which conveyance was made by a deed executed by Jay S. Curtis and wife, and Clark M. Curtis and wife, then the holders of the title, to the said plaintiff, to pay twenty-five hundred dollars of such indebtedness, and in consideration of that credit therefore, the defendant made and delivered to the plaintiff, a covenant in writing .in the following words and figures:
    “‘Por a valuable consideration to me in hand paid by Thomas P. Eldridge, of the city, county and state of New York, the receipt whereof is hereby confessed and,acknowledged, I do hereby covenant and agree to and with said Thomas P. Eldridge, his heirs, executors and administrators, that I will pay all taxes and assessments of every kind, nature and description, which have been or shall hereafter be levied, assessed or imposed upon lots numbered three (3), four ( 4), thirteen (13) and fourteen (14 ), in block number thirteen, in Glasby, Gallagher and Little’s addition to the city of East Saginaw, in Saginaw County, Mich., so long as said Thomas P. Eldridge or his heirs shall own the same or any part thereof, and that I will pay said taxes and assessments as soon, and as often in each year, as they shall become due and payable, and for the consideration above stated, I do further covenant, promise and agree to and with the said Thomas P. Eldridge, that if upon the sale of the property above described, he shall not realize enough over and above all expenses which he shall incur, in relation to said property and the sale and transfer thereof, to amount to the sum of two thousand five hundred dollars, with interest thereon from the date hereof to the time of such sale, that I will pay to said Eldridge, his heirs or assigns, on demand at any time after such sale, such a sum of money as will make with the net proceeds of said sale, a sum equal to twenty-five hundred dollars and interest thereon, from this date to the time of such sale and transfer/ — which instrument was executed under seal and stamped with a revenue stamp of five cents by said defendant.
    “The defendant neglected to pay the taxes of 1867, assessed on the lots mentioned in said covenant. In August 1868, T. S. Hall applied to the defendant' to purchase said lots and offered to pay for them $2,700, and to pay one quarter of the purchase money down, and the balance in two years, and interest at the rate of seven per cent, per annum; this offer was communicated by defendant to plaintiff by letter, August 24, 1868. The plaintiff by letter, August 27th, 1868, declined the offer, requiring for the property $2,800, one quarter down and the balance in equal payments in one, two and three years, and interest thereon at the rate of ten per cent, per annum. Said Hall being informed of the plaintiff’s answer, abandoned the - negotiation. The property was then worth twenty-seven hundred dollars, if sold on terms of one-quarter down and balance in one, two and three years, with interest, that being the usual way of selling real estate, and has always been worth that sum or more since.
    “ On the 23d day of November, 1868, George Bliss & Co., forwarded to Wm. L. Webber, Esq., of East Saginaw, the said deed to the plaintiff, and the foregoing covenant with letter containing instructions.

      “‘We wish first to ascertain whether the agreement is good and binding, and in case the property should not bring $2,500, whether the difference could be made out of S. B. Bliss. If he is good and we 'can make the money certain from him, we want you after a reasonable time or notice to sell the real estate at auction, and if the property does not bring $2,500, to enforce the difference from S. B. Bliss in accordance with the terms of the agreement. If there is no chance of realizing out of S. B. Bliss, we would not wish to sacrifice .the property at auction, but hold on for private sale.’
    “Mr. Webber above mentioned, after receiving further instructions from George Bliss & Co., and a full and sufficient power of attorney authorizing him to sell and convey said lots from said plaintiff, and after personal notice of his intention to do so to the defendant, and after offering to convey said lots to said defendant or to whomsoever he should appoint for that purpose, upon payment of the said sum of $2,500 and interest and taxes, advertised them for sale at auction. For this purpose he inserted a notice dated December 12th, 1868, over the signature of George Bliss & Co., in each of the two daily newspapers published in the city of East Saginaw, that the said property, describing it, would be sold on the 19th day of December, 1868, at 3 p. m. The notice was also printed in conspicuous type, forming a bill six by eight inches in size, and plentifully distributed through said city.
    “ On the 16th day of December, 1868, the defendant served a notice in writing on said Webber as follows: ‘East Saginaw, Dec. 15 th. 1868. Messrs. George Bliss & Co., and Webber & Smith, their Agts., and Attys. Sir: Whereas, I was offered for lots 3, 4, 13 and 14, block 13, Glasby, Gallagher and Little’s addition, East Saginaw, Michigan, twenty-seven hundred dollars, and the firm of George Bliss & Co., refused to take the same through Mr. Eldridge one of the firm, and the same are now advertised for sale at auction, at a season of tbe year, and in a state of the money market when you know the lots are not likely to bring their actual value: Take notice that I hereby protest against and forbid the sale of said lots at auction at less than twenty-seven hundred dollars, and shall not hold myself liable for, nor responsible on my guaranty for any deficiency in the amount realized from said sale. Solomon B. Bliss.’
    “At the request of said defendant, and to give Him an opportunity to raise the money to pay the plaintiff the amount claimed, said Webber adjourned said sale until December 26th, 1868, of which adjournment notice was given in both said daily papers, and also by handbills plentifully circulated, when the property was put up for sale at auction and sold for $1,535, to Martha H. Janes, who is defendant’s sister, and wife of William C. Janes, who was one of the firm of Bliss, Janes & Co., but he, said defendant, Bliss, was not interested in the purchase, neither he nor Bliss, Janes & Co., contributed any funds therefor. Said auction sale was fairly conducted, and sale made to the highest bidder, at the Reading Room of the Bancroft House, in East Saginaw, that being the place specified in said advertisements, and a considerable number of persons was present, of whom three at least were competent bidders. Said Webber as Attorney in fact for said plaintiff, in the plaintiff’s name, conveyed said lots in fee to said purchaser, in consideration of the amount bid aforesaid.
    “At the time of said sale, and during the preceding autumn months there was a scarcity of money in this portion of this State. A similar scarcity occurs each year at the same season. Between January 11th, 1867, and the time of so forwarding said deed and covenant to said Webber, said plaintiff resided in the city of New York, and there was no evidence that plaintiff made any effort to negotiate a sale of said property, and from such absence of proof the Court finds that no effort to negotiate a sale of the property was made hy the plaintiff.
    “ Said plaintiff paid for the taxes of 1867, on said lots twenty-seven dollars and fifty cents,'and two dollars and eighty cents commissions, for paying them. The plaintiff paid twenty-six dollars and fifty cents for the expense of advertising said sale and five per cent, on the proceeds thereof to Mr. Webber as his commissions for his services as agent in making said sale, amounting to seventy-six dollars and seventy-five cents. The plaintiff paid one dollar for stamp put on power of attorney to said Webber, and two dollars for stamps put on the deed to the purchaser at said sale.”
    The Circuit Judge found the following conclusion's or law :
    “1. The conveyance of the real estate was absolute to the plaintiff as purchaser, and not by way of security or mortgage for a debt. The relation of debtor and creditor did not exist between the parties in respect to the consideration of the conveyance. Nor was the transfer a conditional sale. The plaintiff was not bound on any contingency to reconvey to the defendant, nor to account to him for any portion of the proceeds in case they exceeded, even largely the consideration, the plaintiff could retain the land, or sell to any person willing to purchase.

      “ 2. In order to hold the defendant liable on his covenant for deficiency, the plaintiff was bound to dispose of the land as prudent owners of such property commonly do who have no other recourse for its value. And a sale at auction on such notice, and under such circumstances, as the sale proved in this case was made, is not such a sale.
    “3. The defendant’s default in not paying the taxes of 1867, on the lots, did not justify the sale which was made, so as to render him liable by any other rule. The covenant to pay- taxes was separate and independent, and the plaintiff had a right of action on it as often as a breach occurred.
    “The plaintiff is entitled to judgment for taxes of 1867 assessed on the lots neglected to be paid by the defendant and paid by the plaintiff, $33.38. And the defendant is entitled to costs.”
    To which conclusions of law numbered 3 and 3, the plaintiff excepted, and the judgment entered in the cause, the plaintiff below brings into this Court by writ of error.

      Win. L. Webber, for plaintiff in error.

      John J. Wheeler, for defendant in error.
   Campbell, Ch. J.

In January, 1867, Bliss caused to be conveyed to Eldridge certain real estate, which was received as a payment of $3,500 upon an existing debt. At the same time, Eldridge received of Bliss an agreement whereby he covenanted to pay all taxes upon the land while Eldridge and his heirs should hold it, and -also covenanted that if, upon the sale of the property, Eldridge should not clear $3,500 and interest, over and above expenses, he would pay enough to make good that amount.

No attempt was made by Eldridge to dispose of the property until the time presently to be referred to. In August, 1868, Eldridge had an offer through Bliss of $3,700, payable one quarter down and the balance in two years, with interest at 7 per cent. He declined this and refused to take less than $3,800, payable one quarter down and the remainder in one, two, and three years, with interest at 10 per cent. This proposal was not accepted.

November 33d, 1868, Eldridge wrote to an agent in East Saginaw, directing him, in case Bliss was good, to sell the property at auction, after reasonable time or notice, and if the property brought less than than $3,500 to enforce the difference. But if there was no chance of realizing from Bliss, he said he did not wish to sacrifice the property at auction, but would hold on for private sale. The case finds that the property from August, 1868, had always been worth as much as, or more than $3,700, if sold for one-fourth down and the balance in one, two, and three years, with interest, and that such was the usual way of selling real estate.

The agent, after notifying Bliss, and offering to convey to him or any one whom he might appoint, on payment of the $2,500, with interest and taxes, advertised it on the 12th of December, 1868, for sale on the 19th. On the 16th of December Bliss protested in writing against the sale for less than $2,700, and declared he would not be responsible for any balance if so sold. The sale was afterwards, at his request, adjourned one week, and then the premises were sold for $1,535. The sale was fairly conducted. It is found that every year at that time there is a scarcity of money in that portion of the State.

Bliss is sued for the deficiency, and for some small amounts paid for taxes and expenses of sale.

The Circuit Court gave judgment for the taxes, but not for the deficiency, holding that the sale was not justified by the contract, under the circumstances, and that the covenant to pay taxes was independent of the conditions relating to the sale.

We think the covenant to pay the taxes was a separate covenant, and that its breach could have no effect on the conditions relating to the land and its proceeds. The agreement to refund the deficiency on sale referred only to making up what should be wanting to raise $2,500, and interest, clear of expenses of sale.

The principal question, however, relates to the right of Eldridge to sell when and in the manner he did, and to the liability of Bliss to make up the deficiency.

To determine this it is necessary to look at the contract. It appears that the land was conveyed by a third person to Eldridge in absolute payment of $3,500. No right is given or reserved to Bliss to take back the property upon any terms whatever. Eldridge was not compelled to sell it, and would have had a legal right to retain it. But, in order to hold Bliss, he was compelled to make a sale, and, in the absence of any specific terms, he was bound to act reasonably in doing so. He must sell within a reasonable time, and in a reasonable way. The case finds that he made no effort whatever to sell for nearly two years, and that he refused to sell for $3,700, when he had an opportunity to do so, while he did not object to selling for one-fourth down and the rest on credit, but merely objected to the price and the rate of interest, although it was the same that Bliss was bound to make up. He then directs a sale at an unpropitious season of the year, and for cash, but in case Bliss is not responsible he desires to hold on and sell at private sale.

We are very strongly inclined to regard the refusal to sell for $3,700, when it was offered, as estopping Eldridge from making any claim for deficiency under a subsequent sale for a less amount. Without deciding that he had no right to sell, except on the usual terms of part cash and part credit, it is quite evident, and is so found, that he would have done so if the price and rate of interest were satisfactory. The subsequent- proceedings, in the light of his instructions, manifested a disposition to force a sale when he expressly expected and designed to risk a sacrifice which would not result if he waited longer. He had delayed when he could have sold profitably; and when a sale was not expedient, he sacrificed the property for less than two thirds of its value. His position was one which involved relations of a fiduciary nature, and his action was not such as it should have been. But we are relieved from the necessity of determining the precise extent of his powers to sell, because, in any event, he was bound, if he sold at auction for cash, to give reasonable notice of the sale. And here the law furnishes analogies which should govern such a case. There is no sale of land under any legal process or direction, when less than six weeks notice is required to render the sale valid. The object of this sale was to fix a pecuniary liability, and the sale was without redemption. We have no hesitation in saying that less than the usual legal notice was, in such a case, unreasonable and insufficient, and that by making the sale under these circumstances, the plaintiff precluded himself from setting up any claim against Bliss, and acted in his own wrong. The sale was not made in pursuance of the contract.

The judgment must be affirmed with costs.

The other Justices concurred.


author: Cooley, J.

text:
    Marvin Hannahs and George Hannahs v. James W. Sheldon.

      Bills of Exchange and Bromissonj Notes: Evidence of transfer: Insanity of payee. Evidence that the payee of a negotiable instrument, payable to order, was insane during all the time from the issuing of the paper until the death of the payee, is admissible to disprove the validity of the transfer.

      Heard April 21.

      Decided April 26.

    Error to Calhoun Circuit.
    This was an action of assumpsit brought hy James W. Sheldon against Marvin Hannahs and George Hannahs, upon a certificate of deposit of which the following is a copy:
    No. 1223 — State or Michigan, Hannahs’ Exchange Bank, Albion, Eeb. 2d, 1859. Mrs. Jennett Failing has deposited in this Bank three hundred and four 75-100 dollars, subject to the order of herself on return of this certificate, in current bank notes, interest ten per cent. M* Hannahs & Son. $304 75-100.
    On the back of said certificate is the following endorsement, viz: “ Pay the bearer the within deposit.”
    Jennett Failing.
    On the trial the defense offered to show that the payee, Mrs. Failing, was insane from the time when the certificate was issued until her death, and was therefore incapable of making a valid transfer of the paper. The Circuit Judge excluded the testimony, and the plaintiff had a. verdict and judgment. The defendants below bring error.

      W. II. Brown, for plaintiffs in error.

      T. G. Pray, for defendant in error.
   Cooley, J.

Sheldon sued the Hannahs upon a certificate of deposit issued by them to Mrs. J. Failing, by which they promised to pay to her order three hundred and four 75-100 dollars in current bank notes. The certificate bore date February 2, 1859, and Sheldon claimed title thereto as assignee. The transfer of the same by Mrs..Failing was proved by her blank endorsement thereon. She was deceased at the time of the trial, and the defendants offered to show that from the date of the certificate to the time of her decease she was insane and incapable of transacting business. The plaintiff objected to the proposed evidence and the Court excluded it.

No ground was suggested on the argument upon which this ruling could be sustained. If Mrs. Failing was insane she could have made no valid assignment of the certificate, and the title thereto would have been in her personal representatives after her decease and not in Mr. Sheldon. It is probable that the Court misapprehended the precise force of the offer made, but upon the record as presented to us, we have uo alternative but to reverse the judgment. It will be reversed accordingly, with costs of this Court, and a new trial ordered.

Campbell, Ch. J. and Christiancy, J. concurred.

Graves, J. did not sit in this case.


text:
    In the Matter of John Hicks and Joshua Hicks.

      Practice in the Circuit Court: Tort for fraudulent conversion of property: Holding defendant to bail. Property described in a chattel mortgage, and which is taken out from its operation by a fraudulent contrivance of the mortgagor, is wrongfully converted; for which an action of tort may be maintained, and the defendant held to bail.

      Sale of chattels: Conditional delivery. Upon a sale of personal property, — machinery, designed to be fixed to realty, — a part of the purchase price being paid in cash, and the balance secured by chattel mortgage on the same property, which, however, was not to be delivered, until the owner of the realty should endorse upon the mortgage his recognition of the rights of the mortgagee, the tide passes on the day of the sale; the delivery only is suspended until such recognition is endorsed.
    Error to Ionia Circuit.
    The Fulton Iron and Engine Works commenced an action in the Circuit Court, for the County of Ionia, by the issuing of a capias ad res. against Louis Hicks, John Hicks and Joshua Hicks, upon which the Circuit Court Commissioner of that county endorsed an order to hold John Hicks and Joshua Hicks to bail. This order was made upon the following affidavit:
    “State oe Michigan, County op Ionia, ss. James B. Wayne, of Detroit, in the County of Wayne, being duly sworn, saith that he is Treasurer and General Business Agent of the Fulton Iron and Engine Works, a corporation existing under and by virtue of the laws of Michigan, and doing business at Detroit, aforesaid, and that he is personally cognizant of the facts stated in this affidavit.
    “ Deponent further saith, that on the 24th day of March A. D. 1869, the said Fulton Iron and Engine Works sold to Louis Hicks, John Hicks and Joshua Hicks, doing business at Saranac, in said County of Ionia, under the name of Hicks Brothers, a second-hand horizontal steam engine, complete, with shaft, fly-wheel, governor, independent force-pump, with counter-shaft, pulleys, and box; also one heater; also one double saw mill, complete; also two second-hand boilers, with steam drum, mud-pipe, breeching, and fire-front for same: that at the time of sale the said Hicks Brothers paid the said Iron and Engine Works, eight hundred dollars, and to secure the balance of seventeen hundred and thirty-five dollars, executed and delivered to deponent a mortgage upon the aforesaid property, besides their two notes; that said mortgage was dated the 21th day of March, A. D. 1869, and was sent by deponent, with the said property, to the Agent of the Detroit and Milwaukee Railroad Co., at Saranac, with directions to deliver the said property to the said Hicks Bros., upon their obtaining from one D. F. Frazell, who was the owner, of a certain lot of land upon which the said Hicks Bros., proposed to erect a certain steam saw mill, and to place therein the aforesaid property for the purpose of manufacturing lumber with the same, a recognition of the said Engine Works’ right to said property; that upon obtaining such recognition, the said agent was directed by deponent to deliver said property to the said Hicks Bros.; that upon the 31st day of March, A. D. 1869, deponent received the said mortgage from the said agent, with the consent of said owner endorsed thereon, and that deponent forthwith transmitted said mortgage to the Township Clerk of town of Boston, being the town in which said property is situated, and said mortgagors reside; that said mortgage was filed in said office on the first day of April, A. D. 1869.
    “ Deponent further saith, that on the 30th day of March, A. D. 1869, while a portion, if not the whole of said property was still in the possession of the railroad, at its depot in Saranac, the said Louis Hicks, John Hicks and Joshua Hicks purchased a lot of logs of one Charles Macomber, and with intent to deceive and defraud said Engine Works, represented to the said Macomber that the said property was entirely free from all liens and incumbrances, and thereby induced the said Macomber to give them credit, and for the purpose and thereupon and on the 30th day of March, A. D. 1869, executed and delivered to the said Macomber a second chattel mortgage upon the aforesaid property, with a lot of logs, to secure the sum of nine thousand eight hundred and fifty-nine dollars, and caused the said mortgage to be filed in the office of the said Township Clerk, on the 30th day of March, A. D. 1869, at seven o’clock in the evening, thereby giving the said mortgage a priority over the mortgage to the said Iron and Engine Works.
    “Deponent further says there is now due the said Iron and Engine Works, the sum of eighteen hundred and three dollars, and that at the time the said mortgage to Macomber was given, the said Louis Hicks, John Hicks and Joshua Hicks knew that said first mortgage was not placed upon file, and that they made the said representations to Macomber for the purpose of obtaining credit from him, and of securing to him a priority over this deponent’s mortgage.
    “ Deponent further saith that said property mortgaged to Macomber is not worth more than the amount of his mortgage, and that by the fraudulent giving of said second mortgage, the mortgage to said Engine Works is rendered worthless.”
    The affidavit of Wayne was corroborated by the affidavit of Charles Macomber, also attached to the writ, that John Hicks and Joshua Hicks, represented to him that the machinery was entirely free and clear of all incumbrances whatever.
    The two Hicks brothers, against whom the order to hold to bail was granted, were arrested. Whereupon they sued out of the Ionia Circuit Court a writ of habeas corpus, and on the hearing, were discharged. The writ of error in this case was issued to bring before this Court the proceedings on the habeas corpus.

      Newberry, Pond & Brown, for plaintiff in error.
    The action is not upon contract into which the plaintiffs had been drawn by fraudulent representations, but in case for a tort. Whenever trespass, trover or replevin will not lie, case can be sustained whenever there has been a wrong done by the defendant and a resulting injury to the plaintiff. — Low v. Martin, 18 Ill., 290; Upton v. Vail, 6 Johns., 181 ; Griffin v. Farwell, 20 Vt., 151; Ashby v. White, Ld. Ray. 938; Paisley v. Freeman, 3 T. R., 63; Sheldon v. Fairfax, 21 Vt., 102; Lanridge v. Levy, 2 M. & W., 519; Weatherford v. Fishback, 3 Scam., 170; Bond v. Hilton, Busbee (N. C.), 308; Googins v. Gilmore, 47 Me., 9.— Though we find no case precisely analagous to the present, that of Manning v. Monaghan, 23 N. Y., 539, is very similar. And see, — Forbes v. Parker, 16 Pick., 462.

    That a mortgagee of personal property may sue for an injury to his reversionary interest, see Googins v. Gilmore, 47 Me., 9 ; Ayers v. Bartlet, 9 Pick., 156.

    But it is insisted that it does not appear that the property had passed at the time the second mortgage was given and consequently that Maeomber is not entitled to priority. Though it had been the intention of the Engine Works that the property should not pass until the assent of the owner had been obtained, still it is clear the property would pass, and Hicks’ title become perfect as soon as that condition toas performed.

    The question of delivery is not material. 1. Because the Hicks had paid $800 at the time of the sale, and the property was theirs, subject only to the performance of the. condition. 2. Because it is admitted and appears from the affidavit to have taken place not later than the 31st. It was to take place as soon as the condition was performed, and was actually taking place at the time the second mortgage was given. 3. Because delivery is necessary to vest title only as against attaching creditors, bona fide purchasers and stoppers in transitu. It has no application here, as parties may mortgage that of which they have not the possession. See 1 Pars, on Gont. {old. ed.) p. 488; Bur-rill on Assignments, p. 72 ; Hilliard on Sales, p. 11, notes; Butterfield v. Baker, 5 Pick., 522.

    There was no negligence on our part, and if there had been, it would not affect the case. The doctrine of contributory negligence applies only in cases of negligence on the part of defendant, not in those of fraud. Besides, the alleged negligence was by express understanding between plaintiff and defendants.
    The law infers damage from the destruction of the security, and plaintiff is under no obligation to show there is no possibility of collecting in any other way. — Suydam v. Watts, 4 McLean, 162; Sampson v. Houdinot, 1 C. B. (N. S.) 590; Rhinelander v. Barrow, 17 Johns., 538.

    “Damages are either general or special. General damages are such as the law implies or presumes to have accrued from the wrong complained of. It does not appear necessary to state the former description in the declaration.” — Sedgwick on Damages, chap. 24, p. 575 ; Forbes v. Parker, 16 Pick., 462; Sedgwick, p. 488. — Perhaps, in cases of mortgages, the more correct measure would be the value of the property not exceeding the amount due on the mortgage. — Forbes v. Parker, 16 Pick., 462; Barry v. Bennet, 7 Met., 354 — 'The amount of damages is material only in fixing the bail.

      Dodge & Hutchinson, for defendants in error.
    . 1st. Admitting the facts set forth in the affidavit to be true, the relators insist that they are not sufficient in the law to entitle the respondents to capias ad respondendum or to sustain an action on the case, for—
    —An action on the case will not lie to recover damages for causing the plaintiff’s entry of public lands to be set aside by means of a false affidavit, made by the defendant, to establish a prior pre-emption right to the same lands in himself. — Abbott v. Bahr., 3 Wis., ( Ghand.) 210. — An action on the case will not lie for an injury sustained by the plaintiff in consequence of a peijury on the trial of a suit. — id.
    If an action on the case will not lie to recover damages, for making a false affidavit, by means of which the plaintiff’s previous entry of public lands was set aside, and the defendant acquired the land; a fortiori, such an action will not lie for a false statement whereby a party acquired nothing, and was under no obligations but a moral one to tell the truth. Where a fraudulent conveyance of property is made for the purpose, and with the intent to defraud creditors, an action on the case will not lie, by one of the creditors against the parties to that conveyance to recover damages for that cause. — Moody v. Burton, 27 Maine, R., 427.

    “Though a defendant has been guilty of a culpable fault, * * * yet, if the plaintiff, by his own * * * want of ordinary care, contributed to produce the result, he cannot recover.” — 19 Gonn. R., 507; Shear. & Bed. on Negligence, ch. 8 ; 11 Pick., 588.

    3d. The argument thus far has been based upon the assumption that the respondents had lost their mortgage; secondly, by reason of the false and fradulent representations of the relators. But that security is not lost or destroyed. It is good, and the respondents, by their own showing, have suffered no damage whatsoever, and therefore have no cause of action.
    It is also urged, “that delivery was unnecessary to pass the title, because they had paid $800, at the time of the sale, and therefore the title was theirs, subject only to the performance of the condition." Let ns see. To constitute a valid sale, there must be parties, property, consent of parties, and the performance of the acts required to complete the contract. — 1 Bouvier Inst., 269. — No symbolical delivery is claimed. It was actual delivery that was, and must have been talked of between these parties. It was actual delivery that the agent was instructed to withhold until the performance of the act required. Time and place of delivery were parts of the contract made in Detroit. When time and place of delivery are agreed upon it must be made then and there, before title can pass. — 1 Bouv. Inst., 879 ; Id., 880 ; 1 Parsons on Contracts, 441 j 10 Barb., 95 ; 1 Pide., 416.

   Campbell, Ch. J.

The parties, who were discharged under the habeas corpus proceedings removed into this Court, were arrested on a capias ad respondendum, sued out for an alleged injury, for which redress is sought by an action on the case in the nature of an action of trover. The validity of the arrest depends on the affidavit, which sets out in substance these facts.

On the 24th day of March, 1869, the Fulton Iron and Engine Works, of Detroit sold to the Hicks brothers, who were doing business at Saranac, in Ionia County, certain machinery adapted to the purposes of a saw mill, and at the time of sale the purchasers paid eight hundred dollars in cash, and gave their notes and chattel mortgage of the same date for the balance. This mortgage was sent by the Fulton Works, with the property, to the agent of the Detroit and Milwaukee Railroad Company, at Saranac, with directions to deliver the property to Hicks brothers, upon their obtaining from the owners of the land upon which they proposed to erect a steam saw mill, in which the machinery was to be placed, a recognition of the rights of the Fulton Works to the property. On March 31, the Fulton Works received the mortgage back from the agent, with the recognition endorsed, and sent it at once to the Town Clerk of the town where the Hicks brothers lived, and where the property was situated, and ho filed it in his office on the next day — which was April 1, 1869.

On the 30th of March, while a portion, if not all, of the mortgaged property was in the possession of the railroad, in the depot, Hicks brothers purchased a lot of logs of one Charles Macomber, representing that the property was free from liens and incumbrances, and induced Macomber to give them credit, and on the same day gave him a second chattel mortgage upon it, with some logs, to secure 19,859, which they delivered to him and caused to be filed with the Town Clerk, at 7 o’clock in the evening of the 30th, thereby, as was alleged, giving that mortgage a priority. It is stated that the Hicks knew the first mortgage was not on file, and did all these acts to get credit from Macomber, and secure him a priority, and that the property mortgaged to him is not worth more than his mortgage, and the first one is rendered worthless.

The objections made'to the affidavit are two: First, that if the second mortgage was by these acts given priority, they would not give any cause of action for the injury; and second, that it does not appear that any such priority was gained.

A mortgage not recorded or followed by continued possession is void as against subsequent rights, and property which is taken out from its operation by a fraudulent contrivance of the mortgagor is to all intents and purposes wrongfully converted. The mortgagee loses it as effectually as if it had been destroyed or stolen. — Fenn v. Bittleston, 8 L. Eq. 483; Forbes v. Parker, 16 Pick., R. 462; Manning v. Monaghan, 23 N. Y., 539.

The execution of a second mortgage is not necessarily fraudulent, and if the mortgagor does not have reason to suppose the prior one is not on file, his omission to give notice of its existence may be free from fault. But when he knows the first is nod on file, and makes the second with the actual design of supplanting the first, instead of leaving it subject to the first, he is guilty of such a wrong as directly destroys the security, and must be held legally responsible as a wrong-doer.

It is claimed, however, that no title passed to Hicks brothers until the property was given up by the railroad agent, upon obtaining the approval of the land owner, and that, for anything appearing the mortgage to Macomber was made when they had no title, and was inoperative to affect the other mortgage, which attached instantly on that delivery. How far this result would follow, upon such facts, we need not consider, because the case is different. It is a familiar principle that a deed cannot be delivered in escrow to the grantee.— Dawson v. Hall, 2 Mich., R., 390. — The affidavit states positively that the property was sold on March 24th, that there was a part payment in money made, and that the chattel mortgage was given the same day: That this mortgage was sent by the mortgagees, with the property, to the railroad agent, with authority to deliver the property upon obtaining a recognition of the mortgage rights by the owner of the real estate, on which it was to be placed. There is nothing to favor the idea that the sale was incomplete, or that the mortgage was to be given up, and the sale abandoned and the property taken back, if no such recognition was given. The only thing it was to affect was the delivery up of the property. If possession by the mortgagee were inconsistent with the security, then a question might arise as to its effect here. But so far from this being so, it was — as against creditors and others — until recently, held that a want of possession raised a presumption of fraud. And under the allegations in the affidavit, the possession can only be referred to the mortgage, and the title was vested in Hicks brothers on the 24th of March.

If this is so, then the subsequent 'mortgagee, by his security, obtained advantages against the prior mortgagees which would make the Hicks brothers responsible as wrong doers, in dishonestly creating them, and the affidavit justified the arrest.

The judgment of discharge must be reversed, with costs.

The other Justices concurred.


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    William H. Edwards and George C. Sanborn v. Stephen Hughes, et al.

      Attaching partnership property. An attachment against partnership property under the statute relating to proceedings against debtors, by attachment, — Comp. Laws ch. IkO — is unauthorized unless grounds for issuing the writ exist against all the partners. Nor may the separate property of one partner be seized, unless a good cause for issuing the writ is shown against the owner of such separate property. — Laws of 1861, p. ISO.

      Dissolution of attachment: Partners. A partner, not implicated in the grounds on which a writ of attachment has been issued and partnership property seized, is entitled to have the attachment dissolved and the property restored to him.

      Heard April 21 and 22.

      Decided April 26.

      Certiorari: To C. E. McAlester, Esquire, Circuit Court Commissioner for the County of Genesee, to review proceedings before him for the dissolution of an attachment.

      II. Joslin and J. J. Wheeler, for plaintiffs in error.

      Fenton & Newton, for defendants in error.
   Cooley, J.

Edwards and Sanborn sued out an attachment from the Circuit Court for the County of Genesee, against Hughes, Eeams and Williams, who, as partners had become indebted to them. The affidavit for attachment was made by San-born, and it alleged that the affiant had reason to be-. lieve and did believe, that the said defendants were about to dispose of certain of their property with intent to defraud their creditors. Considerable property belonging to Hughes and Reams was seized by virtue of the writ, but 'Williams it seems had ceased to be a partner with the other defendants, and no service was made upon him or his property. Hughes petitioned the Circuit Court Commissioner for a dissolution of the attachment, claiming to have acquired all the right of Reams in the property, by purchase, since the attachment. On a hearing before the Commissioner, the plaintiffs were able to show strong grounds for an attachment as against Reams, but none at all as against the other defendants. The Commissioner dissolved the attachment, and the plaintiffs removed the proceedings to this Court by certiorari.

The plaintiffs claim that the proceedings should be reversed, because, among other reasons, Hughes could not lawfully apply for a dissolution of the attachment without joining his co-defendants with him, or at least the other defendant whose property was taken. Hughes, on the other hand, claims that an attachment which proceeds against three persons, as guilty of a contemplated joint fraud, where two of them are wholly innocent, is entirely unwarranted, and that either of the innocent parties is at liberty to apply separately to have the wrong which is done him corrected.

The statute governing this case is to be found in the Session Laws of 1861, p. 180, and is an amendment of § 1771 of the Compiled Laws. It reads as follows:

“ (1771) Sec. 30. When two or more persons are jointly indebted as joint obligors, partners, or otherwise, and an affidavit shall be made, as provided in section two of this chapter, so as to bring one or more of such joint debtors within its provisions, and amenable to the process of attachment, then the writ of attachment shall issue against the property and effects of such as are so brought within the provisions of said section; and the officers shall be also directed in said writ to summon all such joint debtors as may be named in the affidavit attached thereto, to answer to the said action as in other cases of attachment.”

It will be seen from this section that when the plaintiff is able to make a case against one of several debtors, whether they are indebted as partners or otherwise, he is not to allege a joint wrong by them all, but must set forth his case in the affidavit according to the facts. There is good reason and plain justice in this statute, since otherwise, the party who has the misfortune to be joined in the same legal obligation with a dishonest person, may himself be subjected, not only as to his property owned jointly with the other, but as to his individual property also, to all the inconveniences and rigorous treatment to which he could have been made liable if personally guilty of the like dishonesty. On the writ in question, the Sheriff had the same authority to take the individual property of Hughes and Williams, as to take that of Reams; and such a writ is not permissible under this statute.

And, we think Hughes, as a party aggrieved by the issuing of the writ, had a right to have it set aside. Williams, not being served, could not join with him, and a good cause for the writ being made out as against Reams, it was, at least, proper that he should not join. It is objected by the plaintiffs, that the result would be that the whole property would be restored to Hughes, when at the time of the attachment he was part owner only; and the Court cannot, it is said, on such a proceeding inquire into the Iona fides of his pretended purchase from Reams. It seems to us a sufficient answer, that at the time the writ was sued out, Hughes, as against any unauthorized writ, was entitled as partner to the possession of all the partnership property. It does not appear from the Sheriff’s proceedings that any individual property of Reams was attached.

We think the proceedings should be affirmed with costs.

The other Justices concurred.