text:
    Minnock et. al. vs. Shortridge et. al.

    Error to. Oakland Circuit.
   Opinion hy

Graves, J.

Suit on notes executed by plaintiffs in error while doing business as partners. Notes given for merchandise when Minnock lacked four days of his majority. After reaching his majority he made no express promise to pay the notes. A portion of the goods were sold before, and the remainder after Minnock became of age.

Meld)'That the clear tendency of modern auihority is in favor holding the mercantile paper of minors voidable at their election, and not absolutely void. The general rule is that executed contracts are binding until avoided by the infant by words or conduct which show that the party refuses longer to be bound by them. When it is said that the executory contract of an infant is voidable, the idea represented is that the contract is susceptible of confirmation or avoidance by the promisor, though it is not binding until it is ratified.

The facts found bind both Minnock and Hadden to pay the value, hot exceeding the contract price, of so much of the goods forming the consideration of the notes as were L disposed of after Minnock became of age, and that a recovery therefor could be supported under the countin the declaration for goods sold and delivered.

The defendants in error having elected to proceed against Minnock and Hadden jointly, the amount recoverable could not go beyond the sum chargeable against Minnock, nor beyond the contract price of the goods, but a recovery according to the value of the goods, not exceeding the agreed price, would be legally unobjectionable. The finding' furnishes no data for ascertaining the amount for which judgment should be rendered upon the principle stated, and therefore anew trial was ordered with costs.


source: Caselaw Access Project

author: Christiancy, J.

license: Public Domain

text:
    Berger, Plaintiff in Error, vs. Jacobs, Defendant in Error.

    Error to Wayne Circuit.
   Christiancy, J.

A-wife may maintain an action of trespass for an asault aud battery upon herself without joining her husband as co-plaintiff. See O. L., § 3292. On the other hand, for damages accruing to the husband from assault upon his wife, as for loss of assistance and society, expenses, etc., he alone could sue. Judgment reversed.


author: Campbell, C. J.

text:
    Brooks vs. Hargraves.
    Error to Wayne Circuit.
   Campbell, C. J.

The only question was whether the following instrument constituted a promissory note or not:

$533 00 Detroit, Mich, Dec. 24,1867.
One year after date, for value received, we promise to pay to Joseph Smith, or bearer, five hundred and eighty-three dollars, with interest — this to be paid when any dividends shall be declared on such shares as Joseph Smith has been holding heretofore in the Agricultural and Broomhandle Manufacturing Company of Trenton, Mich. (Signed)
Geo. Hargraves & Bro.

The note was given for the purchase price of the shares of stock referred to, and no dividend has ever been declared.— Held, that as, according to the terms of the instrument, the time of payment was not certain, it could not be regarded as a-promissory note.

Judgment affirmed with costs.


author:
      ,Opinion by
     Christiancy, J.

text:
    The M. S. & N. I. R. R. Co. vs. McDonough and Andrews.
    Railroad companies are not bound to receive live stock as common carriers, unless repaired? so- to do by their charter or some statute.
    Error to Branch Circuit.
   ,Opinion by

Christiancy, J.

Plaintiffs in error received of defendants in error certain hogs, at Cold water, to he by them - conveyed to Detroit. It is claimed that the railroad company '•'did.not properly care for the hogs, keeping thetn unnecessarily-confined for a long time in the cars, whereby they were greatly depreciated in value. No express contract is shown.

The transportation of live stock by common carrier, by land, was unknown to the common law, by which their great liabilities were fixed. This company were not bonnd to receive live stock as a common carrier, unless required so to do by its charter or some statute, and no such requirement appears.

Judgment of the court below reversed.


author: Campbell, G. J..

text:
    Watkins vs. The First National Bank of Sturgis.
    A writ for tins collection of taxea issued under an "unconstitutional law is no protection to the officer, and a payment of tuxes to such, officer may be recovereed back, though no levy or technical duress was resorted to in making the collection.
    Case made after judgment from St. Joseph Circuit.
   Opinion by

Campbell, G. J..

Watkins complains of a judgment rendered against him for money illegally collected of the bank,under color of a warrant from the Auditor General, issued for a specific tax under the law of 18G7, charging specific taxes on National banks.

The grounds of defense were that the payment was volun tary, and that a portion of the money was paid .over into the Stale treasury. This process rvas issued under said special statute, and showed on its face the sóurce and extent of the authority. asserted by referring expressly to the act. This act was held unconstitutional in Smith vs. The First National Bank in Tecumseh, 17 Mich., 479.

Hdi, That the writ being bad upon its face made any one seeking to enforce it a wrongdoer, and any money obtained under it, being unlawfully obtained, he had no right to pay it into the treasury, and such payment would not exonerate him. The payment in this .case cannot be regarded as voluntary in any proper sense. It was not necessary that there should be any technical duress or that the party imposed upon must resort to violent or legal remedies to prevent the exeeu tion of the process or to recover the property he allows to be seized under it.

The judgment must be affirmed with costs.


text:
    Hoffman vs. Harrington.
    Error to St. Clair Circuit.
   Opinion by

Campbell, C. J.

The offences of forcible entry and detainer are entirely distinct, and a forcible detainer does not so relate back as to constitute a forcible entry.

The Court below erred in charging the jury “ that if the defendant entered upon the premises, removing everything belong-to the plaintiff for the purpose of excluding the plaintiff, and with the purpose of using such force as was necessary to keep the plaintiff out, and within a short time the plaintiff, on discovering what the defendant had done, re-took possession and the defendant expelled him by force from the lots, the whole conduct of the defendant must be considered together and the force used by him will be taken to have been part of his original entry; and make it a forcible entry under the statute."


author: Campbell,'C. J.

text:
    The People ex. rel. The Glenn’s Falls Ins Co. vs. The Judge of the Jackson Circuit.
    A corporation organi-ed under tbo laws of another State, doing business in ibis State, may be sued in our Courts, and application by the defendant in such case, to remove the cause to the U S. i ourts was paoperly denied.
    Error to Jackson Circuit.
   Opinion by

Campbell,'C. J.

This was an order upon the Circuit Judge to show cause why a mandamus should not issue directing him to remove a cause to the United States Court, the relator being defendant, and a corporation existing under the laws of New York and the plaintiff being a citizen of Michigan*

The validity of the statute providing for the removal of cases to the United States courts is undoubted. And it was held in Yackey vs. Richardson, 9 Mich., 529, that in cases to which it plied it was a matter of right and not within the discretion x>f the State couits. If this were the case of a citizen of another State, having the full rights of an individual and subject to no disabilities, there would be no doubt of the propriety/ of the removal. '

It is settled that a corporation created in one State has no right to do any act in another except by the express or implied assent of the latter. And it has been held that such assent may be conditional. The State of Michigan has enacted that ho for* eign insurance company shall transact business in this State without first appointing an agent or attorney in this State on whom process of law can be served, which process shall issue from the courts of this State, and such courts shall have exclusive jurisdiction of all cases arising nnder this act. The submitting themselves to the exclusive jurisdiction of our courts is one of the conditions of the corporate action of these insurance companies in Michigan. The Circuit Court could not therefore properly compel a party who had sued them when they had covenanted he might sue them, to go into another jurisdiction.

Held, also, that if any coercive action should be deemed necessary in a cáse of this kind-, it should come from the United States courts and not from those of the State.

Mandamus denied.


text:
    The People vs. M. Henry Roberts.
    Where an offense constate of an act combined with a particular intent that intent is just aa necessary to be proved as the act itself.
    A person charged with assault with intent to murder, whose mental faculties, at the time of the alleged assault, were so far overcome by intoxication that he was not conscious o * what he was doing, or if he did not.know why he was doing it, or that his action and the means used were naturally adapted or calculated to endanger life or produce deathi cannot be deemed to have had sufficient capacity to entertain the intent charged.
    Error to Calhoun Circuit.
   Opinion by

Christiancy, J.

Defendant was tried for assaulting with intent to murder one Chas. E. Givble, by shooting at him with a loaded pistol.

The first question presented is whether under this information the jury could properly find the defendant guilty of the assault with the indent charged without finding as matter of fact that the defendant entertained that particular intent.

Held, that where a statute makes an offense to consist of an act combined with a particular intent, and especially where such offense constitutes substantially, as here, an attempt to commit some higher offense thtm that which defendant has actually succeeded in accomplishing, that intent is just as necessary to be proved as the act itself, and must be found by the jury as matter of fact before a conviction can be had; and such paiticular intent must be proved to the satisfaction of the jury, and no intent in law, or mere- legal presumption differing from the intent in fact, can be allowed to supply the place. The Court cannot instruct the jury that as matter of law the intent must be inferred by them from the assault made.

The second question raised is whether the voluntary drunkenness of the defendant immediately prior to and at the time of the assault to a degree that would render him incapable of entertaining, in fact, the intent charged, would constitute a valid defense so far as related to the intent, and leave the defendant liable only for what he actually did, viz.: the assult alone.

Held, that if the defendant had formed the intent while in possession of his mental faculties — entertained it before and at the time he became intoxicated — his subsequent voluntary intoxication, to whatever extent, would not shield him. One who voluntarily puts himself in a condition to have no control of his actions must be held to intend the consequences; but this in-' eludes only the cousequenoes that actually ensue — the crime actually committed — but not such intent as here charged, when the defendant was at the time incapable of entertaining it, and did not,in fact, entertain it. It was natural, therefore, to inquire whether the defendant’s mental faculties were so far overcome by the effect of intoxication as to render him incapable of entertaining the intent. The jury should have been instructed that if defendant’s mental faculties were so far overcome by the intoxication that he was not conscious of what he was doing, or if he did not know why he was doing it, or that his action and the means used were naturally adapted or calculated to endanger life or produce death, then he had not sufficient capacity to entertain the intent charged. That the Court below erred in holding, in effect, that no extent of intoxication could have the effect to disprove the intent, treating the intent as an inference of law for the Court rather than a question of fact for the jury.


text:
    Hunter vs. Parsons.
    Peremptory challenges hiaygbe made at any time before the jury ia sworn.
    It is not error to permit an instrument to be read in evidence .before all the ovidence aa t# its execution has been submitted.
    A bmajide holder of negotiable paper, is not affected by acts or knowledge of his vendor. Any njaterial alteration of a note, after its execution vitiates it.
    ' No rule of law which makes one witness admissible in preference to another, to prove th» execution of an instrument, unless it has a subscribing witness.
    There is no law requiring the charge of the Court to be signed.
    Error to Livingston Circuit.
   Opinion by

Campbell, C. J.

Parsons sued Hunter upon a promissory note, the genuineness of which was disputed, it being claimed either that an original’and imperfect instrument had been altered, or that a false one entirelv|had been substituted.

On the opening of the trial below, plaintiff examined all the panel on their voir dire, and then for the first time challenged one of them peremptorily. It was claimed that he should have challenged him after his preliminray examination, and before he proceeded to question the rest.

Held, That the course taken was not error. There is no rule of practice forbidding the exercise of the right of peremptory challenge at any time before the jury is sworn. And unless a party has ascertained what jurors can he excluded for cause, and therefore need not he challenged peremptorily, he may lose the chief value of the privilege.

Proof was given by the plaintiff that, after his purchase of the note, and when it became due, defendant, on being requested to pay it, said it had been altered; that the words “ or bearer” had been put in, and the rate of interest changed; that he said four or five times he signed the note, and said it was his signature or a close imitation. Upon offering to read the noto in evidence, it was objected that the proof of the signature was not sufficient; but the court admitted it, and the plaintiff followed up the admission by further proof of its genuineness, which was controverted by proof introduced by defendant.

Held, that there was no error in allowing the note to be introduced. The whole matter was finally left to the jury.

Also that there was no pertinency in the inquiry how much the party of whom the plaintiff brought suit, paid for the note. If plaintiff himself was a bona fide purchaser before maturity, he cannot be affected by the acts or knowledge of his vendor.

The defendant had testified that he believed the note was signed by him, but that it was altered after he signed it. Some of the alleged alterations were printed words, standing in the note as produced. The printer in whose office the blank was printed proved by his testimony that it was originally printed as it then appeared. The testimony was clearly admissible, as tending to disprove any alteration after signature by the introduction of printed words not in the original blank.

Exception was taken to the charge, that the law will sustain the claim of an innocent or bona fide holder of a negotioable promissory note purchased before due, however viciously other parties may have acted, or whatever objections to the consideration may arise. The court instructed the jury thatany material alterations would vitiate it, and that the alterations relied upon were material. The charge related entirely to the question of original consideration and equities not affecting the execution or genuineness of the paper. It was in accordance with the settled law.

Exception was taken to the refusal of the court to charge that “ if the plaintiff has means of showing that the note was executed by the defendant, as now produced by the person to whom it was given, it is the plaintiff’s duty to produce him, or account for bis absence. When the execution is denied under oath, the presumption of law is, that the witness would not testify that the note was, when executed, as it now is.”

Held, That the denial under oath merely puts the plaintiff on proof of the execution. There is no rule of law which makes crae witness admissible in preference to another, except where there are subscribing witnesses.

It was also objected that the charge oí the Court was not signed. There is no law requiring it to be signed. Its genuine, ness will always be shown by the signature to the bill of exceptions and it can never be inquired into except when brought up on bill of exceptions.

Judgment affirmed with costs.


text:
    Baker vs. Johnston.
    B makes aud record** a village plat, designating certain premises as a “ public, square.”— Tlie acknowledgement was defective. Bote were sold with reference to the plat. Held' that this is a good dedication to the public use, and operative as a conveyance to the county in, trust for tlie designated purpose, though no grantee is mentioned. Such dedi cation is effectual against the land owner without formal conveyance to tlie county.
    The use of such dedicated-property by shows and the like, does not constitute a public acceptance of the dedication, but proof of improvements, such as fencing, clearing and ornamenting, would be competent as tending to show an acceptance.
    Error to Van Burén Circuit.
   Opinion by

Campbell, C. J.

Action below, trespass for breaking.close of Baker.

Defendant justified, claiming the premises were a public square.

In 1846,Baker made and caused to be recorded a plat of certain lands including the Village of Lawrence. The plat was not so certified as to become a valid recorded plat. Tlie premises in question were designated on the plat, “ Public Square.” Baker subsequently sold lots described by reference to the plat.

A question arose under the act of 1850, whether this has operated, to make the plat effectual as if it had been legally complete in the first place. The statute consists of two sections, both of which profess to be retrospective. The first in terms provides that where propriétors have platted lands and caused the plat to be recorded without the proper acknowledgement, and have sold and conveyed lands by reference to the recorded plat, it shall have the same . effect as if legally acknowledged and recorded. The second section provides that where, a plat has been'duly acknowledged, the record thereto made shall be evidence as against the makers of the sufficient dedication, gift and grant to the public of any portion thereof represented in such plat as a public ¡guare.

Meld, That it was not designed by either of these sections t° create a dedication of a public square by anything which did not operate, when made, as a complete conveyance in fee to the county of lands properly defined as intended for public purpo-ses. It was evidently considered that.a difference might exist in the legal conditions of lands destined for common highways and for other purposes, and that a dedication for one might not suffice for another.

It is well settled of course that land may be dedicated for use as a common highway without grant or covenant, but there seems to be no foundation for the idea that at common law, lands could be set apart by dedication for any other. purpose. The decisions in this country, however, have undoubtedly assumed that the mere want of a grantee would not defeat £v dedication of lands for well defined public purposes, likening them to charitable trusts, which will not always fail for lack of a trustee.— The utmost, however, which can be affirmed, is that where the purpose is clear and well defined, the courts will protect lands which have been dedicated to public uses, and which are so situated that the public purpose can be legitimately carried out.— The plat designating those grounds operated as a conveyance to the county in trust for the purposes designated.

Meld, That there is no difficulty in ascertaningin this case an original intent to have this land set apart for some public purpose. That the law here unquestionably is, that there may be a dedication effectual against the land owner, without a statutory and formal conveyance to the county. The plat here shows that the square was to be kept as a block separate from the adjacent streets and bounded by their exterior lines. And all the evidence negatives the idea of any other design. In this case no incorporation existed when the land was platted, and there was no certainty that the land would become an incorporated city or village within any reasonable time.

Held, That a public acceptance could not be made out by the testimony showing that the premises had been used by the inhabitants or by traveling showmen for purposes of amusement, as ball playing, circus performances, etc. Any vacant private property might be and is usually resorted to for such uses, and it is questionable whether an express dedication could be maintained for any such objeots. The use for agricultural fairs is repugnant rather than favorable to the idea of a public acceptance. Such a use is no way conducive to public ornament or to the embellishment of a village. So far as any of the proof offered in the case has any significance, it tends to show the purpose of dedication to create an ornamental park, which is now perhaps the most common purpose for which dedications of public spaces are devoted. And the only evidence of any joint action bearing upon the question of acceptance by any persons having a right as against Baker to claim as representing the public is to the same effect. It appears that some two or three years before Baker proposed to resume possession, á gathering of the villagers was had, at which arrangements were made for enclosing the square, and planting shade trees in it, which was done, money being raised for the purpose. This evidence should go to a jury, and, inasmuch as the rulings of the court below Were in conflict with the view of this Court, the judgment is set aside and a new trial granted.


author: ChrIstiancy, J.

text:
    Kinyon vs. Duchene.
    Appeal from St. Clair Circuit.
   Opinion by

ChrIstiancy, J.

A person cannot lawfully hold the office of Drain Commissioner and Supervisor at the same time. Three Supervisors who, while holding that office, had been appointed Drain Commissioners, attempted to assess a tax, assuming to act as a Board of Drain Commissioners. Held, That such act was invalid, and a decree was entered restraining the collection of the tax.


author: Graves, J. Christiancy, J.,

text:
    Geo. B. Throop vs. The N. A. Fire Insurance Company.
    AsaumpBit on contract of insurance. The declaration purported to set forth the contract according to its legal effect, and not in heec verba. The policy, which was burned, pwvided that when a policy issued on or referred to an application, survey, plan, or desctfption, it should be considered a part of the contract and a warranty by the assured. It appeared from the testimony of a witness called by plaintiff to prove the contents of the policy that his knowledge was gained by being in the office of the agency and observing the formB used and the way in which the business was done. On cross-examination he was allowed • under objection of plaintiff’s counsel, to state that policies wer#issued on applications and that plaintiff signed one when this policy was issued. There was no evidence of the contents of the application. On objection by defendant’s counsel, the Court excluded proof of loss onthe ground that there was a fatal variance caused by an omission to notice the, application in the declaration.

      Meld, that the objection to the inquiry on cross-examination was properly overruled.

      Held, further, that the declaration purporting to set forth the contract according to its legal effect, and not in terms, and there being no evidence of the contents of the application, the Court could not assume and hold as matter of law that the declaration did not set forth the whole contract according to its legal significance, since the bare fact that an application was made in writing could not be held as surely- implying tlvat it contained matter capable of being the subj ect of warranty.
    Error to Lenawee Circuit.*
   Opinion by

Graves, J.

Throop sued the Insurance Company for an alleged loss under a policy from them. The action was assumpsit and tbe plea the general issue in tbé common law •form. On the trial plaintiff gave evidence tending.to prove the issue and delivery of the policy and its destruction by fire, and proceeded to prove its contents. On cross-examination the witness who testified to the contents of' the policy was asked whether it was customary for any other papeirs to be executed by either party in connection therewith, which was objected to, but objection overruled. The witness then testified that he knew of no other such papers except applications, and that Throop signed one of these when the policy was issued to him.» Thi^ ruling oí the Court below is alleged as error.

Held, that the ruling was correct. The fact called for was closely connected with the matter drawn out on direct examination and bore upon the precision of witness’ acquaintance with the company’s insurance contracts as well as with the nature of the transaction between the parties.

After further testimony as to the form of policies of the company, and the form of applications, one oí the blank applications was read in evidence, which provided that if the policy was made and issued upon or referred to an application, survey, plan, or description of the property insured, such application should be considered a part of the contract, and a warrant by the assured. Throop testified that he made application in writing, signed by himself, for the insurance. Offer was then made to show on his behalf that the property insured was destroyed by fire during the life of the policy, but defendant objected because it appeared that such written application had been made, which was not referred to in the declaration, and hence there was a fatal variance between the contract set up and the one actually made. Objection sustained and evidence excluded-No further evidence was offered, and defendant obtained a verdict. The declaration does not purport to set up the contract verbatim, but only to state its substance.

Held, that the question turns upon the construction of the declaration, and policy, and application, as to whether the declaration fairly sets up the substance of the entire contract between the parties. It does not follow, of course, that the application was a warranty because of the simple statement that such shall be its character. If the set of words used lack the signification to make them possible evidence of a warranty, ah agreement to make them such is ineffectual, and the Court could not determine this until it should appear what the warranty embraced. The proper construction of the clause that the application shall be a warranty will make it applicable only to those cases where the application is of such a nature or so drawn as to be capable oí a Warranty by force oí the stipulation in question. The proof simply that an application was made would not, alone, justify the Court in holding as matter of law that it contained conditions qualifying the legal sense oí the contract stated in the declaration.

It was insisted, however, that the parties having made the application part of the contract the plaintiff was bound to produce it on the trial, and put it in evidence, that the Court might determine whether it contained anything material.

Held, that the Court below decided the question without evidence of the contents of the application, and that decision is what the defendant must support in this Court, and that the plaintiff was under no duty to put in evidence any matter which in his judgment was immaterial. So far as the records show, no matter was produced which tended to prove that the legal sense imputed to the contract by the declaration was incorrect. The defendants allege a variance, and they are bound to show to the Court by some means the particular matter they relied upon to sustain this claim.

Judgment reversed and new trial ordered.

Christiancy, J.,

dissented, holding that the application was a part of the contract of insurance, and that its introduction in evidence as proof of its contents was necessary to determine how far it modifies the policy, but that the burden of proving the contents of the application was upon the plaintiff, as part of his proof of what the contract between the parties really was, and that it was such a contract as the declaration set up.


text:
    Tripp vs. Haesig.
    A warranty deed of lands carries with it the corn standing thereon, whether ripe or unripe
    Error to Kalamazoo Circuit.
   Opinion by

Graves, J.

Tripp sued Haesig for the alleged conversion of a quantity of standing corn, which Tripp claimed as his property, and on the trial a verdict passed for Haesig Tripp sold and conveyed by warranty deed a farm on which he had lived and raised the corn in question, in the season of 1865, to defendant, about December 13,1865, while the corn was still standing. No exception or reservation was made in the deed. Tripp claimed that the corn being over-ripe when the deed was executed,.did not pass. The Court directed the jury that the corn, though ripe, and no longer deriving nourishment from the ground, would, if attached to the soil, pass by sequence of the land-

Held, That there was no error in this charge. Whether the corn would pass or not could no more depend on its maturity or immaturity than the passage of a standing forest tree by conveyance of the land would depend upon whether the tree was living or dead. This question depends upon whether the crop is at the time attached to the soil, and not upon its condi-. tion as to maturity.

Judgment below affirmed with costs.

Christiancy, J.,

concurred, but said: “ 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 winter, or till wanted for use or market, and to be taken only on the like occasion 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, J am inclined to think I might have agreed in the opinion intimated by the Supreme Court of Illinois, in Powell vs. Rich, 41 Ill. 466.


author: Cooley, J.

text:
    Edwards & Sanborn vs. Hughes, et al.

    Where a party is able to make a case for attachment against the property of one only, of several debtors, he is not to allege a joint wrong by them all; and in case he does so, the attachment, so far as it holds the property of. the parties innocent of fraud, may be dis«' solved.

      Ceitiorari to Circuit Court Commissioner of Genesee County.
   Opinion by

Cooley, J.

Plaintiffs sued out an attachment from the Circuit Court against Hughes, Reams & Williams, who, as partners, had become indebted to them. The affidavit for attachment was made by Sanborn, and it alleged that the affiant had reason to believe, and did believe, that the defendants were about to dispose of certain of their property with intent to defraud their creditors. Considerable property belonging to Hughes & 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. 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 whieh-proceeds against persons as guilty of a contemplated joint fraud, when two of them are wholly innocent, is entirely unwarranted, and that either of the parties is at liberty to apply separately to have the wrong which is done him corrected.

Held, That by the statute governing this case (Laws of 1861 p. 480) 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. The proceedings should be affirmed with costs.


text:
    Mattison vs. Mattsson.
   A preliminary objection was raised that notice of the motion to dismiss the case had not been entered in the special motion book, according to rule nine, but the Court announced that they had never enforced that rule in chancery cases. J


text:
    Case vs. Peters.
    The effect of written evidence of title should not be changed, by an alleged parol agreement-upon a slight preponderance of evidence. The Court should be satisfied beyond a rea sonable doubt.
    Appeal from Wayne Circuit.
   Opinion by

Christiancy, J.

Admitting that the verbal agreement set up in the bill, under the circumstances alleged) would make Peters a mortgagee of Case, and convert the lease into a mortgage to secure Peters, rather than a trust in favor of complainant, and that the hill is rather in the nature of a hill to redeem than for the specific performance of an agreement, the complicated verbal arrangement set np is so entirely different from and inconsistent with the legal effect of the written lease, and the other written evidences of the transaction, as to have made it a very unfit subject to be trusted for years entirely to the mere memory of ' the parties. But upon the hypothesis that the case sought to be established hv complainant, would be one rather in the nature of a mortgage than a trust, and that parole evidence, therefore, is admissible to establish the agreement, and thereby change this lease executed by Bishop to Peters into a mortgage from complainant to Peters, it would he dangerous; and.it would tend to weaken confidence in titles generally, if the effects of deeds, leases, or other written evidences of title could be thus changed by a verbal agreement, except in very clear cases, where the cod. tract appeared to the entire satisfaction of the Court. It should never be done upon a slight preponderance of evidence. The Court shou'd be satisfied beyond a reasonable doubt. The evidence of this alleged agreement is not of this character. The decree of the Court below must be reversed and the bill dismissed with costs.


text:
    The People ex rel. Julien S. Estabrook vs. The Commissioner of the State Land Office.
    'fhe Chief Clerk in the State Lan.d Office, upon application by the relator to purchase certain school lands which wore valuable for the timber thereon, informed the relator that h part payment and tho entry of relator’s name on the plat of tho land in tract book (which was then made) would bo sufficient to secure to him as nuch purchaser the laud applied for, the relator undertaking to pay tho balance of tho purchase money when required and the Chief Clerk agreeing to notify him if anything more than was then dono was required to make tho purchase effectual. A rulo of tho Land Office, known to tho Chief Clerk, directed that where a part payment only is made by a purchaser for lands of that -description such purchaser should bo allowed to select so mueh as the money deposited would pay for in full.

      JHeld, that a mandamus to compel the Commissioner of the Land Office to issue a patent fo» tbo whole of such Ignds so partly paid for upon the relator’s paying the balance of the purchase money must bo refused.

      Held, further, that upon these facts the relator must be presumed to have intended, not a present purchase, but an arrangement to preclude other purchasers of the land from antici. patlng him.

      Held,aUo, that the Clerk could not — such rule being known to him — make an arrangement by which'the State would be giving indefinite credit without interest for its lands.

      Held, also, that there was no legal objection to tho payment by a subsequent purchaser of such . lands that it was made by draft on New York, the Commissioner having received it us payment.
   Opinion by

Cooley, J.

This was an application for a writ of mandamus to compel the Commissioner to issue to the relator a patent for certain school lands in Midland county. The relator’s petition states that on July 3, 1867,' he applied at the State Land Office to purchase all of a certain section of school lands except one 40 acre lot, being in all 600 acres; that he was informed by one Nash, Chief Clerk and bookkeeper in the office, that said lands would be secured to him on the payment of $2 per acre; that he paid into said office the sum of $2 per acre, being $1,200, and which was half payment; that his name was written upon the plat of said lands in the tract book of the office in his presence, and that he was informed by Nash that this entry secured the lands to him, but that he could not procure a certificate or patent until the full amount of the purchase money was paid, as the lands were chiefly valuable for timber, and under a recent ruling of the State Board no certificates or patents were issued on lands of this character until after full payment of the purchase money; that he then stated he would pay the balance due whenever he should be called on, upon the shortest possible notice, but that he had not at the time sufficient funds with him to make lull payment; that he was infoimed that if anything further was required of him be would be notified, of the fact by the Commissioner, and that the lands could not be sold to any other person.

At this time the Commissioner and his deputy were both absent from Lansing, and petitioner received .no communication from the office until February, 1868, when he went there to pay interest and taxes on these lands, or to pay for the same in full if necessary. He alleges the deputy then told him neither interest nor taxes were then clue; that he then told the deputy he was ready to pay in full, but as he did not intend to lumber on the land for one or two years, he should prefer to let the balance of the purchase money lay until then, but would pay on notice, and would give security if required; that the deputy told him he need not pay then, and that the land was marked to him on the books and no one could get an adverse claim. This conversation, however, was denied by the deputy.

Petitioner further shows that, relying on the statements of Nash and the deputy, he did not insist on receiving a certificate or patent, or upon paying the purchase money, and that he received no communication from the oflice until the 13th orldth of October, 1868, when he received a letter from the deputy informing him that other parties liad filed an application for a portion of said lands, and that relator was only entitled to 300 acres, whereupon he went to Lansing, and in October, 1868, tendered to the Deputy Commissioner the balance of the purchase money, together with interest, which the deputy received, not admitting his right, but refused to issue a certificate, on the ground of a conflicting application; but the Commissioner allowed the relator to select the east half of said section, and to receive a certificate therefor, without waiving any right to the balance.

The Commissioner sets forth in his answer that it is a rule .of his office, established in 1867, not to sell lands principally valuable for timber without full payment; that all his clerks are aware of this rule, and directed to enforce it; that whenever persons have applied to purchase lands, and made part payment -only, the Commissioner has adopted the practice to' allow them to select as much of the lands as their money would pay for, leaving the balance open to purchase by others; that in August, .1868, Arthur Hill applied at the office to buy this section of land, except what Estabrook was entitled to; that the lands are principally valuable for timber; that on examination of the records he found Estabrook's name entered in pencil on the plat of these lands, and that he had made half payment; that he at once notified Estabrook to select one-half the lands, which his money would pay for, and received payment from Hill for the balance in draft on New York.

Held, that upon these facts Estabrook was not entitled to relief. The fair inference from all the statements is that Estabrook did not understand his arrangement with Nash to amount to a purchase, hut only an arrangement w hich would preclude any other person from buying, and that he was fairly chargeable with notice that a clerk in the office could have no right to make any such arrangement, by which,in effect, the State would be giving indefinite credit for its lands without interest.

Held, further, that it was not a legal objection to Hill’s payment that it was made in draft on New York instead of currency, if the State officers saw fit to receive it.

Mandamus denied, without costs.

Campbell, C. J.7 dissented.


author: Christiancy J.

text:
    [Reports of Decision* of tlie Supreme Court, at tlie April term, will be continued in tlie July number of the Xfisi iVtui.]
    Fisher vs. The People.
    fiince, as well as befoiio, the act of 1869 L.,p. 113), however correct any specific request to charge may he, its refusal will not be error, if the judge in the written charge actually given, fairly leaves to the jury the question substantially raised by the request.
    A charge should be given as one connected whole, instead of giving the same in broken and detached portions.
    Credibility of a witness, a question for the jury — construction of charge.
    Error to Kalamazoo Circuit.
   Opinion by

Christiancy J.

The defendant was convicted of stealing a heifer, the property of A. B. Dorrance. The first error assigned is that the Court refused to' charge as specially requested, “ that-il the jury entertain a reasonable doubt as to whether the heifer in question was the property of A. B. Dorrance or Mary Dorrance, then the jury must give the benefit of the doubt to the respondent and acquit.”

There was some evidence in the case tending to make it doubtful whether the heifer belonged to A. B. or Mary Dorrance, and also some tending to show that it might belong to the respondent On the argument of the case in the Supreme Court, counsel for. the respondent took the ground that the doubt was whether the heifer did not belong to the respondent. The Court, however, is of the opinion that, from parts of the charge, it seemed that respondent must upon the trial have rested bis defense upon the ground that the animal belonged to Mary Dorrance; and this conclusion seems warranted from the fact that the judge used this language in his charge to the jury: “ It ie claimed by the respondent that the daughter of the alleged owner of the heifer in controversy was the sole, absolute owner, and that her father, A. B. Dorrance, had no title, or not such a title as supports the allegations in the information of ownership.” It is not likely that this statement as apart of the charge would have been allowed to pass without exception, if untrue in fact; and • it may therefore be safely relied upon as a true statement of what the defendant claimed on the trial.

Held, That upon this interpretation (and we are inclined to think upon either interpretation suggested) of the matter, the charge of the Court fairly left to the jury the question intended to be raised.

Since, as well as before, the act of 1869 (Sess. L.,vol. 1 ,p. 113), however correct and specific a request to charge may be, its refusal will not be error, if the judge in the written charge actually given, fairly leaves to the jury the question substantially raised by the request.

The jury will always better understand a charge, given as one connected whole, than if the same matter were broken up into separate and detached portions, which are more likely to confuse than enlighten. The first assignment of error, therefore is not well taken.

The second assignment is that the Court erred in refusing to charge “ that, if the jury find that Jasper and Byron Francisco took the heifer from the actual or constructive possession of the owner, and impounded it in their own field, and after-wards delivered it to the defendant, then that taking of the animal from the possession of the Franciscos’ with their consent, would not be larceny, as there would be no trespass in sucb .taking.”

Held, That it appeared from the record that the supposed, facts are assumed without any evidence in the case fairly tending to prove them. The request assumes a stat6 of facts which no evidence in the case tended to prove, which the jury could not have found from the evidence, and which it would have, been wrong in the Court to assume they could have found. The evidence tended to show that the respondent and the two Franciscos’ stole the animal together.

So far as appeared from the record, Dorrance might have maintained trespass for killing or taking the heifer by any thirl person, at the time it was taken by the respondent and the Franciscos’. 1 Chitty’s Pl. 194 to 196; 6 Humph. 330; 2 Bish.Cr. Pr., Sec. 688 n. 4.

Two of the witnesses testified that they had on a former trial of the case falsely testified in respondent’s favor, influenced, aa they now testified, by threats of the respondent, that if they testified against him, they should not leave the court room alive. In relation to this evidence, the Court charged the jury as follows:

“ While it is not the business of the Court to comment ob the testimony, yet, in view of the peculiarity of some of it, I feel it to be my duty to say to you, that while it is true that when it is manifest to a jury that a witness has wilfully sworn false, touching any of the material facts involved in the case, the testimony of such witness is not, unsupported by other proof, to be considered worthy of belief; yet it is for you, from all the circumstances in the case, to say whether, if the witness has sworn falsely, there was any reason, justification or excuse for committing perjury. For myself, I can conceive of no possible excuse for perjury in any ease. You must, however, look at the matter in view of all the circumstances — in view of the known frailty of human nature, unaided and unregenerated by the power of Him whóis the source of truth, and say, uponyoar oaths, what, and how much of the testimony you believe to be true.’’

This charge was excepted to, and is assigned as error. The objection is not that it was in violation of the act of 1869, ia reference to charging juries. Nor do we perceive that it is objectionable on this ground. This portion of the charge, when fairly construed, is nothing more, in substance, than an announcement of the rule laid down in 15 Mich., 408, that the credibility of a witness, under such circumstances is exclusively a question for the jury.

It is urged that the Circuit Judge gave the jury fo und®stand that there might be some justification or excuse for perjury. But this can be hardly fairly said, when he tells them in the same breath with the language complained of, that for himself he can conceive of no excuse for committing perjury, and finally that they must, look at the matter, in view oí all the circumstances, and say, upon their oaths, what, and how much of the testimony they believe to be true. We think the charge in this respect was entirely fair, and if calculated to mislead in any way, it was in favor of the respondent.

It was further partly objected that, if the Court referred to the testimony given on the former trial, then error was committed in assuming that the witnesses committed perjury on the former trial instead of on the second. Held, however, that the charge must be understood with reference to the evidence given, and, when so understood, could not mislead. The Court assumed nothing, but expressly told the jury that the whole question .of the credibility of the witnesses was entirely for them.

Proceedings of the Court below affirmed.


author: Cooley • J.

text:
    Haesig vs. Tripp.
    In an action of trover for the conversion of a mare and two colts, the declaration alleged that the plaintiff was “ lawfully possessed, as of his own property,” of the mare, and also “ lawfully possessed as aforesaid” of the colts.

      Held, The allegation of the ownership of the colts sufficient.
    A nephew of the owner of premises upon which animals have trespassed and been impounded for the damages, is not competent to act as an appraiser in estimating the damages occasioned by such trespass.
    Error to Kalamazoo Circuit.
   Opinion by

Cooley • J.

Tripp and Haesig were owners of adjoining farms, and a mare and two colts belonging to Tripp got into the field of Haesig, and were impounded by him damage feasant. He then demanded of Tripp $10 damages, which Tripp refused to pay, but tendered $6, which was declined. Haesig then applied to a justice to appoint appraisers of his damages, and the justice appointed two persons, one of whom was Haesig’s nephew. These appraisers fixed the damages at $10, which not being paid, Haesig proceeded to have the mare and colts sold at public auction, and they were sold accordingly. Tripp thereupon brought an action of trover for their value.

The declaration alleged that Tripp was lawfully possessed as of his own property” of the mare, and was also “ lawfully possessed as aforesaid” of the colts. On trial, when the plaintiff offered to prove ownership of the colts, the defendant objected on the ground that he had-not alleged his ownership of them by his declaration. The court overruled the objection, and the plaintiff obtained judgment. . Haesig then brought error.

Held, That the ruling of the Court on the admission of evidence was correct. When the plaintiff alleged that he was lawfully possessed as of his own property of the mare, and also “ as aforesaid” of the colts, the allegation, in the connection in which it is made, clearly is that he was possessed in like manner, that is to say, as of his own property, of the colts.

Held also, That the nephew of a party interested is not a “ discreet and disinterested person,” within the meaning of the statute, which specifies these qualifications for appraisers of beasts distrained. He would be incompetent as a juror at the common law, and he would also be incompetent, under our statutes to exercise any judicial functions in a case in which his uncle had an interest. The law presumes that his relationship will bias his mind; and as this presumption is not based upon special reasons, applicable only to the case of judge or juror, it cannot be overlooked, or disregarded in any case, where the statute makes impartiality a requisite. As this man was not a competent appraiser, the sale was necessarily void, and the whole defense failed. The party who, by an ex parte proceeding, is vested with authority, to dispose of the property of another, must observe at his peril, all these precautions which the statute has prescribed for the protection oí the owner’s interest.

Judgment affirmed.


author: Cooley J.

text:
    Davis vs. Milwaukee R. R. Co.
    Where it is clear that there is no evidence of facts warranting a verdict, it is not error in the Circuit Judge to so instruct the jury.
    An employee cannot recover damages of his principal for injuries sustained in consequence of the negligence of a fellow servant, on the ground that such fellow servant was an incompetent and unfit man to be employed, it appearing that the plaintiff knew of the carelessness of his fellow servant, and made no complaint to his employer.
   Opinion by

Cooley J.

Action for damages for injuries sustained. by plaintiff while in-defendant’s employ, in consequence of the negligence of one Harris, one of their engineers.

It does not appear that the 'plaintiff contests the general principle laid down in Leahy v. Michigan Central R. R. Co., 10 Mich., 199, that the employer is not liable to those in his employment for injuries arising from the negligence, misconduct, or unskillfulness of fellow servants, where the employer himself is not in fault; but he seeks to bring this case within the exception to that rule by showing, either that Harris was incompetent and an unfit- man to be employed by the defendants in the capacity of engineer, and that they were guilty of negligence in employing him, or that he was untrustworthy, careless, imprudent, and reckless, previous to and at the time of the accident, and that the defendants with notice of that fact continued him in their employ.

The Court below charged the jury as follows:

1. That' there is no evidence in the case to show want of care or good faith on the part of the company in the selection of Harris for the position.

2. That if it is claimed that Harris fell into his habitual carelessness after he was employed, there is no evidence that knowledge of such fact was brought home to the officers of the company, or that the company continued him in their employment after such knowledge.

3. That as the plaintiff testifies that Harris was working with the plaintiff, and under his general direction, as head yardsman, from July 16th to November 22d, this gave the plaintiff full opportunity to know if Harris was habitually careless, and as plaintiff testified that he made no complaint to the officers of the company, the plaintiff cannot recover.

4. That there is no evidence in the case to show that the casual remarks made by unknown persons, testified to by Lewis and Sullivan, ever reached the knowledge of any officer of the company, and therefore this evidence is to be excluded from the case.

And the Court refused to charge the jury, that ’if they should find that the reputation of Harris was bad as an engineer, this was notice to the defendants.

These charges and the refusal to charge took the case away ' from the jury, and the verdict was for the defendants.

After a careful statement and consideration of the testimony in the case, and a full examination of authorities bearing upon the legal questions involved, the Court

Held, That there was no error in the charge of the Court be low, and the judgment was affirmed with costs.


author: Graves J.

text:
    Barker vs. Thorn.
    An affidavit in attachment, setting forth the indebtedness of the defendant at $8000, “ as near as can be specified by this deponent,” held sufficient.
    Error to Calhoun Circuit.
   Opinion by

Graves J.

In this case the question is on the sufficiency of an affidavit upon which an attachment issued under Chapter 140 of the Complied Laws. The Court below dismissed the writ upon the ground that the affidavit was fatally defective, and the plaintiff assigned this as error.

The statute provides 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 said indebtedness, as near as may be, over and above all legal set offs,’’ and that “ no writ shall be issued unless the amount stated in such affidavit shall exceed $100.

I entertain the opinion that, for a party to avail himself of this remedy, it must be shown affirmatively and positively on the face, of the affidavit that a sum certain, above $100, is due 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 effect. That an affidavit drawn with some qualification which leaves the Court uninformed by the oath of the affiant as to his ability to state the real amount, would be defective in a jurisdictional part.

The affiant in this case states that the defendant is indebted to the plaintiff in the sum of $8,000, 'l as near as can be specified by this deponent,”- and I think the qualification leaves the affidavit essentially defective.

My brethren, however, think that such a construction would conflict with the practice of the Courts and the uniform opinion of the bar — that the affidavit substantially meets the requirements of the statute and proves with l’easonable certainty that more than $100 was due.


text:
    Coolidge vs. Wells.
    Neither the constitution nor the statute has undertaken to'exempt a merely contemplated future homestead; it must be a homestead in fhct, in order to be exempt.
    Appeal from Berrien.Circuit, in Chancery.
   Opinion by

Christiancy J.

This was a bill to foreclose a mortgage. The defense of homestead was set up, the mortgage not being executed by the wife.

There was no dwelling house on the premises, and never had been, nor had the defendant,- or any of his family, ever resided thereon. The defendant, however, had intended at some future time to build a dwelling house upon the land, and to go and reside.there, though no house had yet been commenced.

Held, That neither the Constitution nor the statutehasundertaken to exempt a merely contemplated future homestead. Both leave the parties first' to make or obtain a homestead in fact, and then apply the exemption to the homestead- thus already acquired. Neither has tindertaken to furnish homesteads, or the means of obtaining them, to those who have none.

Decree below, dismissing the bill, reversed with costs, and an interlocutory decree of foreclosure entered in this Court, and the case remitted to the Circuit for such other proceedings as may be necessary for stating an account between the parties, and, ascertaining the amount to be allowed to the defendant in reduction of the mortgage debt, and for making the decree final and carrying it into effect.


text:
    Eaton vs. Winnie.
    If a party’s own wrongful act has brought another into peril, he is not at liberty to impute the consequences of his acts to a want of vigilance in the injured party, when his owu conduct and untruthful assertions hare deprived the other of that quality and produced a false sense of security.
    Error to Jackson Circuit.
   Opinion by

Cooley J.

Winnie brought an action on the case against Eaton, to recover damages consequent upon the manner in which Eaton had used premises which Eaton had bought of him. On the trial the plaintiff gave evidence to show that he purchased of Eaton the premises by land contract of October 81st, 1864; that he received the deed November 29th; that he went into possession January 4th, 1865; that prior thereto a man named Cain was in possession; that he was allowed to remain for some time after the deed, but moved off when plaintiff moved on; that plaintiff brought sheep on, and that Eaton’s sheep had been shortly before placed on the premises, where he had been doctoring them. A day or two before he moved on, plaintiff told Eaton he wanted to move, and asked if his sheep, which were sound, would not take the disease under which Eaton’s sheep were suffering. T^at Eaton answered “ No, one frosty night will remove it.” Plaintiff gave further evidence tending to show that Eaton’s sheep were diseased with the scab, that plaintiff was unaware of it, and that Eaton has made statements tending to show that he was fully aware of the illness afflicting his sheep, and of the danger of its being communicated to other sheep which might be exposed to them. That plaintiff’s sheep did catch the disease, and were thereby greatly damaged. On this state of facts the Court was asked to charge.

1. That the plaintiff could not recover for the reason that the acts alleged as wilful or negligent were lawful acts on the part of the defendont, and, if the plaintiffs sheep took the scab by reason of the infection remaining after the occupation by the defendant, it would be damnun ahsqae injuria.

2. That the plaintiff .had" no right to rely on the statement of Eaton, that a frost would kill the scab, but, knowing the facts himself, was bound to care for his own sheep, and see that they were not infected.

These requests were refused, but the Court charged the jury that if the defendant negligently and knowingly, put diseased sheep on the premises, knowing that the disease was contagious, and that the plaintiff’s sheep would thereby be injured, he would be liable if plaintiff’s sheep were thereby infected; that if the plaintiff was guilty of negligence in trusting to what Eaton said, about the disease being cured by the frost; or if he was negligent in putting his sheep on the place after he had knowledge of defendant’s'sheep being diseased, then defendant would not be liable; that if plaintiff was himself negligent, or lacked due care in placing the sheep on the premises, or if, in other words, the plaintiff, through negligence contributed to the injury, he could not recover. The jury found a verdict for the plaintiff, and the correctness of this charge is the question to be determined b.y the Court.

Held, That the act of the defendant in putting the diseased sheep upon the premises, with knowledge of the disease and the liability to communicate the infection in the manner charged, was not a lawful act. Eaton was not a tenant; the right of Cain under the arrangement with Winnie to possession for a limited period, was a mere license. Under the terms of the arrangement Eaton had no right whatever to take infected sheep upon the premises. Under the circumstances, too, it not being clear that the character of the disease is so well known that plaintiff must be supposed to have been asfamiliar with it, and as Eaton, who assumed to. be acquainted with it, assured him that there was no danger, plaintiff cannot be held guilty of such negligence as to be precluded from receiving compensation for the injuryjsustained by him. If a party’s own wrongful act has brought another into peril, he is not at liberty to impute the consequences of his acts to a want of vigilance in the injured party, when his own conduct and untruthful assertions have deprived the other of that quality and produced a false sense of security.

Judgment of the Court below affirmed with costs.


author: Campbell C. J.

text:
    Kingsbury vs. Kingsbury.
    An opder conflrminga Commissionar’s report, upon a partnership accouoting, is neither a decree nor a final order* as contemplated by the Statute regulating appeals.
    Appeal from Cass County. Motion tó dismiss appeal.
   Opinion by

Campbell C. J.

Tne motion to dismiss was made on the ground that the order confirming a Commissioner’s report, upon a partnership accounting, is neither a decree nor a final order, as contemplated by the statute regulating appeals. The appellant claims that the order does in fact decide upon the merits, and is therefore a decree. If it does so adjudicate, it was held in Campau vs. Lewis, 14 Mich. R. 460, that it would be appealable, though not deciding the whole case. ' And if, as claimed, the rights passed upon cannot be reviewed at all, unless on this appeal, there can be no doubt of its propriety..

Held, That the order under which the reference was had in this cause did not adjudicate finally upon anything, and merely required the commissioner to examine and state the accounts of the partnership, without first adjudging when it was made, or on what terms, and without attempting to prejudge any important fact whatever. Until the report should come in, and become absolute, there could be no decision at all upon the real merits of the cause. The proceedings reported were expected to enable the Court tó obtain a proper basis for decision. But a mere confirmation of the report is not a final decision of the cause. The case must, after such confirmation, be brought on to be heard, and upon the final hearing, if the facts are sufficiently presented to make a decree, the Court will then proceed to adjudicate and direct what remedy is to be had against either party, and give its decree in such shape that it can be .enforced. The present order contains no such features.

A confirmed report, at best, stands in the same relation to a decree, as a verdict to a judgment. It may be almost certain that the decree will follow it, but it'cannot be enforced until the decree is entered. No rights have as yet been lost to the appellant in this cause, *and until it is known what decree the Circuit Court will render upon the final hearing, it cannot be known which party will have cause to be dissatisfied. When the decree is made — if it should be adverse to the appellant— he will be able to raise on appeal the same questions which would be open if this order were appealable.

The appeal must be dismissed with costs of the motion.


author: Cooley, J. Graves, J.

text:
    The People v. The Township Board of Salem.
    Taxation is a mode of raising revenue for public, purposes only, and must be laid according to some rule of apportionment, so as to fall with something like impartiality upon the persons or property upon which it justly and equitably should rest.
    If the tax is upon one of the municipal subdivisions of the State, only, the purpose must be public, aB regards the people of such subdivision, and local: i. e., the people of the mu. nicipality must have a special and peculiar interest in the object to be accomplished which will make it just that they should bear the burden rather than the State at large, or a considerable portion of the State.
    The sovereign power of taxation, and the power of eminent domain, have each their peculiar sphere; and though neither can be properly exercised unless the object is public, it does not follow that the object which demands the exercise of the one always justifies the other*
    Every branch of needful industry has a right to exist. The public have a right to demand this; and if for that purpose a peculiar locality is essential, he who has the; possession, must, upon just compensation, yield such possession to the superior interest of the public. The business -of carrying freight and passengers by railroad cannot be*established without the exercise of this power; henee its exercise is permissible.
    Necessity is not the governing consideration for the exercise of the power of taxation, though certain objects must be provided for under this power. In regard to innumerable objects the question is one of mere policy.
    The term “ public purpose ” used in reference to the imposition of a tax has no relation to the agency of the public need or extent of public benefit. It is merely a term of classification, to designate the objects for which, according to settled usage, the State is to'provide from those which, by the like usage, are left to private inclination, interest or liberality.
    The construction of a railroad, which is to be owned and controlled by individuals or by a private Corporation is not a public, but a private purpose within the meaning of tboie terms as employed in the law of taxation, The interest which the public have in it is no other or greater than in a.hotél, gust-mill or the establishment of a daily paper.
    The State has not the power to furnish capital to set private parties up in business. Discrimination by the State between different classes of occupations is not legitimate legislation, and is an invasion of that equality of right and principle which is a maxim in State government.
    The Constitution of the State does not confer power upon the Legislature to autliorizo townships to loan their credit to railroads.
   Opinion by

Cooley, J.

In order to render valid a burden imposed by tbe Legislature as an exercise of the power of taxation, the following requisites must appear :

1. It must be imposed for a public, and not for a mere private purpose. Taxation is a mode of raising revenue for public purposes only. And where it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder.

2. The tax must be laid according to some rule of apporti.onment; not arbitrarily or by caprice, but so that the burden may be made to fall with something like impartiality upon the persons or property upon which it justly and equitably should rest. A State burden is not to be imposed upon any territory smaller than the whole State', nor a county burden upon any territory smaller or greater than the county. Equality in the imposition of the burden is of the very esscence of the power itself, and though absolute equality and absolute justice are never attainable, the adoption of some rule tending to that end is indispensihle.

3. If the tax is imposed upon one of the municipal subdivisions of the Stale only, the purpose must not only be a public purpose, as regards the people of that subdivision, but it must also be local; that is to say : the people of that municipality must have a special and peculiar interest in the object to be accomplisbed, which will make it just, proper and equitable that they should hear the burden, rather than the State at large, or any more considerable portion of the State;

These three principles are fundamental maxims in, the law of taxation, and inhere as conditions in the power' to impose any taxes whatever, or to create any burden fof which taxation is to provide; and it is only when they are observed that the •legislature is exercising any authority over this subject "which has been conferred upon it.

The fact that a railroad in the hands of a private corporation is called a public highway, and is recognized as so far a public purpose that the power of eminent domain may be exercised to aid in its construction, does not conclusively determine that it is a public purpose,” within the meaning of the law of taxation. Reasoning by anology from one of the sovereign powers of government to another is exceedingly liable to deceive and mislead. An object may be public in one sense and for one purpose, when in a general sense and for other purposes it would be idle and misleading to' apply the same terms. All government powers exist for public purposes, but they are not'necessarily to be exercised under the same conditions of public interest. The sovereign police power which the State possesses is to be exercised only for the general public welfare, but it reaches to every person, to every kind of business, to every species of property within the commonwealth. The conduct of every individual and the use of all property and of all rights is regulated by it to any extent found necessary for the preservation of the public order, and also for the protection of the private rights of one individual against encroachment by others. The sovereign power of taxation is employed in a great many cases where the power of eminent domain might be made more immediately efficient and available' if constitutional principles could suffer it tó be resorted to; but each of these powers has its own peculiar and appropriate ■sphere, and the object which is public for the demands of one, is not necessarily of a character to permit the exercise of another.

The resemblance of railroads in the hands of private parties to the highways which belong to the public, and which the people make and keep in repair is rather fanciful than otherwise, and has been made prominent, perhaps, rather from the necessity of resorting to the right of eminent domain for their establishment than for any other reason. They are not the people’s highways, but they are ¡private property, whose owners make it their business to transport persons and merchandise in their own carriages over their own land, for such pecuniary compensation as may be stipulated. Their business has a public aspect, inasmuch as it accommodates a public want; and therefore the road in a certain sense is a public purpose. But it is not such in any other or different sense than would be the opening 01 a hotel, the establishment of a line of stages, or the putting in operation of a grist-mill, each of which may be a local necessity.

In the exercise of the right of eminent domain the most important consideration is the necessity of accomplishing some public good which is otherwise impracticable. The power is much nearer akin to that of the public police than to that of taxation; it goes but a step farther, and that step is in the same direction. Every man has an Abstract right to the exclusive use of his own property, for his own enjoyment in such a manner as he shall choose; but ii he should choose to create a nuisance upon it, or to do anything that would preclude a reasonable enjoyment of adjacent property, the law would interfere to enforce restraints. Under some circumstances the owner of land, by a proper exercise of the police power, may be pre.cluded from carrying on a legitimate business upon it, or may be compelled to sell it, because he is unable to make use of it for his own purposes under the regulations of police which have been prescribed. These regulations restrain the right to «the individual for the good of the community at large; and the right of eminent domain only recognizes and enforces the superior right of the community against the selfishness of individuals in a similar way. Every branch of needful industry has a right to exist, and the community has a right to demand that it be permitted to exist; and if for that .purpose a peculiar locality already in the possession of an individual is essential, the owner’s right to undisturbed occupancy must yield to the superior interest of the public. As the business of carrying persons and property by railroad cannot be established without the exercise of this power, its exercise is permissible, and the owner of land needed for a railroad may be compelled to dispose of it at a fair valuation for that purpose. Eminent domain establishes no industry, but it so regulates the relative rights of all, that no individual shall have it in his power to preclude its establishment.

But necessity is not the- governing consideration when the power of taxation is to be exercised, and in many cases has little or nothing to do with the question involved. Certain objects must of necessity be provided for under' this power; but in regard to innumerable other objects for which the State imposes taxes upon its citizens, the question is always one of mere policy, and if the taxes are imposed, it is not because it is absolutely necessary, but because on the whole it is deemed best by the public authorities that they should be. On the other hand, certain things of absolute necessity to civilized society the State is precluded from providing for at all, and they are left to the fostering care of private enterprise and liberality. Oí these may be mentioned religious instruction. A skillful physician may be an urgent public need in a town, but taxes cannot be imposed to hire one to locate there. It would be said at once that any such taxation was for a private purpose, though the public might have a much greater interest in it than in the improvement of some back street, for which the right to appropriate taxes would be undoubted.

The term “ public purpose,’’ therefore, when employed to designate objects for which taxes may be imposed, has no relation to the urgency of the public need, or to the extent of the public benefit which is to follow. It is, on the other hand, merely a term of classification, to distinguish the objects for which, according to settled, usage, the State is to provide, from those which, by the like usage are left to private inclination, interest or liberality. It creates a broad and manifest distinction between public works and private enterprises; between the public conveniences which it is thebusiness of the government to provide, and those which private interest and enterprise are expected to provide whenever the demand is sufficient.

The construction of a railroad which is to be owned and controlled by individuals or by a private corporation, is not a public but a private purpose, within the meaning of those terms as employed in the law of taxation. The interest which the public have in it is no other or different than that which they have in the building of a hotel, or a grist-mill, or the establishment of a daily paper. If the public could be taxed for the one, they could for the other. It is not in the power of the State to furnish' capital to set private parties up in any kind of business, or to enlarge their business after they have entered upon it The discrimination by the State between the different classes of occupations, and the favoring of one at the expense of the rest’ whether that one be farming or banking, merchandizing or milling, printing or railroading, is not legitimate legislation, and is an invasion of that equality of right and privilege which is a maxim in State government. When the door is once opened to it, there is no line at which we can stop, and say with confidence that thus far we may go with safety aud propriety, but no farther. Every honest employment is honorable; it is beneficial to the public ; it deserves encouragement; but the State cannot discriminate for one against another. The State can have no favorites. Its business is to protect the interests of all, and to give all the benefit of equal laws. It cannot empower the majority, convened in a town meeting, to levy taxes upon the minority to be paid over to private parties, upon the pretence that the expenditures by those parties in their own interest will incidentally benefit the public, when these incidental benefits are only similar in kind to those which must flow from the establishment and proper management of any private industry. Individuals must judge for themselves whether such incidental benefits constitute any claim upon their gratitude or liberality.

Because, therefore, it is not an exercise of the power of taxation, or of any other legislative authority, and is entirety outside of any power conferred by the Constitution upon the legislature, the act which assumed to confer upon the townships in the counties of Wayne, Washtenaw, Oakland and Livingston, authority to loan their credit to the Detroit and Howell R. R. Co., and to levy taxes to provide for the loan, is unconstitutional and void.

This opinion was concurred in by Campbell, C. J., and Christiancy, J.

Opinion by

Graves, J.

In this tribunal the door is closed to all debate, except upon the single question of constitutional validity. As Judges, we have no ears to hear, and no minds to consider any argument which does not bear upon this legal point. We are not to listen to any argument drawn from the liability of the Legislature to abuse the power of taxation. The question is upon the existence of the power as applied to the particular subject, and not upon the degree to which it would be possible to carry it. All power is subject to abuse, and if this circumstance is to be taken as an argument against its existence, we are irresistably driven to results fatal to the existence of all government. The same argument can be employed to beat down all original, as well as delegated, authority. All human agencies are fallible, and the judiciary has no preeminent claim to infallibility.

No branch of the Government has the right t.o abdicate its duties, or arrogate to itself any function committed to another, or to exercise any authority which has been withheld or denied. The Legislature must make the law; the Courts must construe and apply it, and the Executive enforce it. The Courts, in passing upon the constitutionality of an act, are to recognize the supremacy of the Constitution ; and in the investigation of constitutional questions are to be guided by certain rules, some of which are set forth and explained in Sears vs. Cotrell, 5 Mich., 251. In that case the Court said : ■“ If it be said the law is unnecessarily severe, and may sometimes do injustice without fault in the sufferer under it, our reply is : These are considerations that may very properly be addressed to the Legislature, but not to the Judiciary ; they go to the expediency of the law, and not^to its constitutionality. When Courts of justice, by reason of snch objections, however well founded, seek for some hidden or abstruse meaning in one or more clauses of the Constitution, to annul a law, they encroach on the power of tl\e Legislature, and make the Constitution, instead of construing it. * * * * The time was, and the period not very far distant, when Courts were reluctant to declare a statue void, and did not feel warranted in doing so, unless they could lay their finger on the particular clause that was violated, and the conflict between the statue and Constitution was obvious.

In the same case, my Brother Christianey contrasted the principle upon which the Federal and State Governments were founded, and held, as all the Courts in the United States have held, and now hold,- that in- respect to questions of Constitutional authority, under the former, the inquiry is, has the power been granted? and under the latter, has it been prohibited ? — arriving at the conclusion that an act of' the State Legislature, not prohibited by the express words of the Constitution, or by necessary implication, could not be declared void as a violation / of that instrument. In the case of Twitchell vs. Blodget, 13 Mich. 127, it is held that “ where a repugnancy is claimed to exist, between an act of the Legislature and the Constitution, the Courts must examine and construe the provisions of each in the light of the other. ■ And they must sustain the law if they have any reasonable doubts of the conflict, even though theee doubts spring from a construction of the Constitution itself.

The objection of my brethren to the act under consideration, is, that to their minds, it attempts to authorize a tax on the people of a township for a mere private purpose. In debating this question, they are compelled to prove that the exercise of the power of eminent domain, in favor of the corporation, does not admit any public quality in the corporation, or any relation between the corporation and the public which could, as a question of constitutional power, justify the exercise of the power of taxation to help build the road, and to maintain this position an elaborate effort is made to prove the absurdity, or incongruity of a contrary doctrine, by putting a great number of extreme cases and cases assumed to be analagous. In none of the examples relied on, however, has the enterprise or business been stamped tby authority of the State with the public quality or character accorded to railroad coporations in this Commonwealth. . It is conceded that a railroad corporation i-s to be considered public, in this State, in respect to the exer cise of the power of eminent domain; but my brethren think it private in respect to the power of taxation. The grounds of this distinction do not satisfactorily appear. It is not contended that the power of eminent domain can be rightfully exercised in behalf of printing companies, or hack and dray companies; and yet the argument rests upon the theory that perfect equality exists between all these parties in respect to the right to exercise any constitutional power in their favor, when the exercise of such right depends on their relations and duties to the public. All reasoning, therefore, against the power to aid the construction of a railroad by taxation, based upon the analogy between railroad corporations and other companies not entitled, will be likely to carry us to a result as to the employment of the power1' of eminent domain, which all confess to be untenable.

Under our Constitution, the property of no one can be taken by the exercise of the power of eminent domain, except for public use, and it is admitted to be settled law that the use for a railroad corporation is a public use according to the Constitution. No such distinction has been made by the Legislature and the Courts in favor of printing companies and the like. In the case of railroads, the State assists in getting the ground fop the road: it provides that the machinery of the Courts may be used therefor, aud casts some portion of the expense on the tax-payers. A court of justice can as well justify the exercise of the power of taxation as the.exercise of the power of eminenl domain, upon the grounds of extra constitutional necessity. ■ But the exercise of neither can be so justified. Both powers spring from political organization, and rest upon the fundamental láw of such organization. “ The right of taxation and the right of eminent domain resflfe substantially on the same foundation.’’ “ Taxation exacts money or services from individuals as, and for, their respective shares of contribution to any public burthen. Private property taken for public use, by right of eminent domain, is taken, not as the owner’s share of contribution to a public burthen, but as so much beyond his share.” 4 Com., 419. This view was approved in Seers vs. Cottrell, 5 Mich., 251, and in the Woodbridge case, 8 Mich., 274. None of these cases intimate that the power of eminent domain bears any relation to the police power, or that under a Constitution forbidding its exercise except to take property for public use, its employment to take property for a private use, or for the private use of a private corporation, could be jütified oh the p'ea of necessity. N or is it suggested that the private use of a private corporation which could not be aided by taxation could be so essential to the pub-lie interest, local or 'general, as to create a lawful necessity. There is no intimation that the subject, which as a public one, could call into exercise the power of eminent domain, would relapse into & private one when the power of taxation should be invoked.

The case of Swan vs. Williams, 2 Mich., 427, holds that the object which determines the character of a-corporation is that designed by the Legislature, rather than that sought by the company. If that object be, primarily, the private interest of its members, although an incidental benefit may accrue to the government therefrom, then the corporation is private; but if the object be. the public interest, to be secured by the exercise of powers delegated for that purpose, which would otherwise repose in the State, then, although private interests may be incidentally promoted, the coporation is, in its nature, public. *■ * * * * It argues nothing that compensation is required to be made for property taken, before it can be used, for this is made by the Constitution a condition to the exercise of this right by the Government itself, and the delegation of the power necessarily carries the incident with it] Nor can it be said that the property, when taken, is not used by the public, but by the corporators, for their own profit and advantage. It is unquestionably true that these enterprises may, and probably always are, undertaken with a view to private emolument on the part of the corporators ;• but it is none the less true that the object of the Governmmt in crea,tiny them is public utility, and that private benefit, instead of being the occasion of the grant, is' but the reward springing from the service. * * *■ The grant to the corporation is, in no esaniial particular different from the employment of commissioners or agents. The difference is in deyree rather than in principle, in compensation rather than in poicar."

This case decided that the power of eminent domain could be exercised in favor of railroad corporations, and declared the grounds on which alone it could be done. Those grounds so far as they relate to this discussion, were, that the purpose was public, and public in thi very sent- now claimed,, to be necessary to justify taxation. Without overruling this ease a majority of the Court now maintain that the aid act in question is unco nsti^utional on the precise grounds that the purpose is not public in the sense there deliberately and explicitly declared. And it is upon this exact point that the present case is made to turn, the result being rested upon the ground that the purpose is not public in that sense in which it was declared to be public in the instance mentioned.

I do not hind myself to all the reasonings in the case of Swan vs, Williams, but cite it to show precisely what our predecessors decided in 1852, and the grounds of that decision. For eighteen years this judgement has been accepted as decisive of the grounds upon which the power of eminent domain could be exercised in favor of railroad corporations in this Commonwealth.

Whatever the public does is performed to advance the public interests only. The. conferring of corporate life, the exercise of the power of eminent domain to procure a roadway and other needful things,-and the raising of money by tax to help the roadway into shape, are all acts which the public does exclusively for the public advantage. The private emolument of the corporators is not the object of tbe public, and tbe assumption that it is so, begs the question. The purposes of the corporators, however personal and private, cannot convert the public object into a private one.


text:
    Adams vs. Church.
    Intoriocutory order — no appeal from.
    Error to Calhoun Circuit.
   Campbell, C. J.

The writ of error was brought on an order discharging a copias. The writ was issued December 9, 1869, returnable on the first Monday of March, 1870, and the defendant was arrested on it immediately. March 19,1870, defendant, by his attorney, moved to set aside and dismiss the writ, to set aside the order to hold to bail and that the defendant be discharged from arrest. March 21, on motion of defendant, proceedings were stayed for two weeks. July 11,1870, plaintiff declared. July 18, the Court ordered that the capias be discharegd, the order to hold to bail be set aside, and defendant be discharged from arrest, on condition that he should stipulate not to bring suit for bis arrest. The next day he filed such a stipulation and no further proceedings appeared.

The order of the Court was an interlocutory order and not a judgment. It cannot therefore be brought to the Supreme Court on a writ of error and the case must be dismissed for want of jurisdiction.


author: Grates, J.

text:
    The Bay City and E. S. R. R. Co. vs. Austin.
    The law imposes the duty of maintaining a fence, upon the owners and occupants of a railroad respectively, as well as upon the company first organized, and without ‘confining it to either.
    A law providing for the recovery of double damages, was repealed after the rendition of a verdict, but before the entry of judgment thereon. Held, in such case that judgment should bo •for'single damages only.
    Error to Saginaw Circuit.
   ■Opinion by

Grates, J.

Aug. 12, 1868, a horse belonging to Austin was run over and killed by an engine of the Flint & Pere Marquette Company, on the road.of the plaintiffs in error and this suit was brought to recover for the injury. June 22, 1869, a verdict was given in his favor for $212 04, and Oct. 9, thereafter the Court awarded judgment for double that sum.- - While the plaintiffs in error owned the road, the other company finished it and exclusively operated it, and the horse was killed by their engine while using the road under a contract.

By the statute as amended, S. L., 1867, p. 221, railroad corporations and persons owning or occupying any railroad in this State, are required to keep up fences, cattle guards, farm cross ings, &o.; and the corporations, persons and agents who may occasion injury to animals where such fences, &c., have not been erected, on the line of such roads, are made liable in double damages. And after such fences, &c., are built, persons leading or driving animals on such road at other places than at farm crossings, are liable to a penalty not exceeding ten dollars.

Plaintiffs in error objected to the recovery, on the ground that under the law, as amended, they could not he held liahle, because the Flint & Pere Marquette Company were not their agents within the meaning of the statute.

This claim of the plaintiffs in error is not sustained.

The amendment of 1867 intended to impose the duty of maintaining a fence, upon the owners and occupants of a railroad respectively, as well as upon the company first organized,, and without confining it to either. The plaintiff in error might he liable as principal, and the Flint & Pere Marquette Company as an agent.

The act of 1869, which was passed before the verdict and became operative after it, but before judgment, struck from the amended section 43 the word “ double,” leaving a liability for single instead of double damages, and the plaintiffs in error insist that this amendment ciit off all right to a judgment for more than single damages. They claim that the act of 1867, in allowing more than single damages, was exclusively punitory, and vested ho right in the defendant'in error, which the Legisla- ■ ture before judgment could not take away. On the other hand it was argued that the law as it stood when the injury was done fixed the measure of his right, and that the moment the damage was done he acquired an inviolable right to recover not merely all his damages but double the amount, and that it is not to be supposed that the Legislature intended by the repealing act of 1869 to affect the measure of redress in a pending action.

Held, That the act of 1869 was an unqualified repeal of the phrase introduced by the act of 1867, giving double damages, arid that there was no ground for holding that the Legislature meant to except pending cases frota its operation. The plaintiff below had no such vested right to the double damages as was superior to the power of the Legislature to take away and to the extent of the matter of damages the judgment below was .reversed and a new rule of damages fixed. On the other questions, judgment was affirmed.