text:
    Cataerine Finan vs. Bernard Millmore et al.
    Millmorb had suits pending in different courts, on call about the same time. His presence at both places appeared necessary. On motion, held that the cause last noticed for trial should be continued.

      Manistee Circuit Court,

      December, 1869.

      L. Pattison and B. W. Bunnett for Plaintiff.

      Benedict, Rollins and Outcheon for Defendant.
   By the Court,

Ramsdell, J.

The defendant in this case, is also defenda nt in a case pending in the U. S. District Court, for the District of Wisconsin. The cases in the two courts are on call for about the same time. The defendant’s affidavit for a continuance, shows that his presence and testimony is necessary on the trial in both courts.

He is bound by the first notice of trial served, and the first notice having come from th#e H. S. Court, that is sufficient grounds for a continuance in this court.


source: Caselaw Access Project

author: Patches J.

license: Public Domain

text:
    Augustus Day, Complainant, vs. Cyrus A. Kellogg, George W. Richardson and Robert Hosie, Defendants.

      The Slate Courts have no jurisdiction to try and determine cases involving the validity of Patent Rights.

      Wayne Circuit, In Chancery,

    May, 1870.
    The bill in this case sets forth the following facts :
    That in May, 1868, defendants Kellogg and Richardson were engaged, in the city of Detroit, in selling a certain patented invention, known as “ Staples’ Automatic Clothes Washer and Boiler,” claiming to be the owners of the same for the State of Michigan; that they applied to complainant to purchase the right representing the invention to be a new and valuable one; that relying on these statements, complainants did purchase the State right — excepting certain counties- — and gave to defendants his notes secured by mortgage in payment; that the only consideration for these notes and mortgages was the patent right in question; that this patent was an infringement and void; that the notes are in the hands of the defendant, Hosie, a banker, for collection, and praying that the defendants may be enjoined from collecting or disposing of the notes and mortgages in question.
    The answer of the defendants, Kellogg and Richardson, admits that they were owners of the patent right, and the sale to complainant, but denies that any representation or warranty was made by them as to the validity of the patent. It admits the giving of the notes etc., but states as a part of their consideration, certain boilers and apparatus, office furniture, etc., sold to complainant, together with the patent right.- It denies the invalidity of the patent or that it is an infringement, but asserts that it is a valid and valuable patent.
    The cause was heard upon bill, answer and proof, but the question of jurisdiction was alone discussed by counsel.

      J. J. Speed, Complainant’s Solicitor, D. C. Holbrook of Counsel.

      E. W. Meddaugh, Solicitor for Defendants.
   By the Court,

Patches J.

This is a bill in Chancery, filed for the purpose of setting aside and having delivered up a certain mortgage and notes claimed to have been given by complainant to the defendants, Kellogg and Richardson, in payment for a certain patent right, on the ground that the patent was invalid and void.

The act of Congress of July 4, 1836, provides as follows:

“ That all actions, suits, controversies and cases arising under any law of the United States, granting or confirming to inventors tne exclusive right to their inventions or discoveries shall bé originally cognizable, as well in equity as at law by the Circuit Court of the United States or any district court having the powers and jurisdiction of a circuit court.

That the effect of'this act is to confer upon the Federal courts exclusive original jurisdiction of suits in equity involving the validity of patents has not, I believe, been questioned by any well considered case arising since its passage. Gibson vs. Woodworth, 8 Paige 132; Dudley vs. Mayhew, 3 Comst., 9.

It is, however, urged on the part of the complainants, that the State courts still assume jurisdiction to pass upon the validity of a patent right whenever it arises in a case collaterally, and to this a large number of cases were cited at the hearing. In my examination of this question, I have carefully studied all of these cases and many others. But, with the exception of one, which I shall hereafter notice, I have been unable to find any in which a State court has entertained jurisdiction of a suit brought for the purpose of having a patent right declared void, as a basis for affirmative relief. In nearly every case the question has arisen collaterally as a matter of defense, and even then has been generally passed upon without objection or discussion. I apprehend that this fact may, in a great measure, account for the large- number of authorities sustaining jurisdiction of State courts in cases in which the question of the validity of a patent arises by way of defense. Without considering the weight of authorities upon this subject, I am at a loss to see how a well considered adjudication, in view of the statute above referred to, could possibly hold that a State court had jurisdiction to try and determine any case involving the validity of a patent right, either directly or otherwise. It seems to me entirely clear that no careful and intelligent State court would attempt or desire to assume jurisdiction of a quéstion which can only arise under and by virtue of a United States law, especially when that law itself, in terms so explicit, confers exclusive jurisdiction on another tribunal. In one of the more recent cases it was held that the courts had no jurisdiction to inquire into the validity of a patent right, even when it arises as a matter of defense — 40 Maine, 430. The case before referred to as sustaining the present bill inits prayer by affirmatory relief is in 11 Ohio, 162. As an authority, this case is entitled to hut very little weight, for neither the counsel nor the court make any reference to the jurisdictional question, and it does not seem to have occurred to them that it was involved in the case. Clearly, in the consideration of the-points involved, the substance of the case was overlooked, and the shadow embraced; whereas, had it, received that careful and full consideration which all courts ought to give questions of this nature, the objections to entertaining jurisdiction undoubtedly would have appeared so substantial and clear as to have led the court to an entirely different conclusion.

It was asserted by counsel at the hearing, but without any extended argument, that Congress does not possess constituional power to deprive the State courts of jurisdiction of such ^questions, and hence that the act of 1836 is void.

I have no question as to the validity of the act. It seems to me entirely clear that Congress not only possessed authority but it is their absolute duty, in some manner, to exercise it so as to preventthe many wrongs that would be sure to flow from the assumption of jurisdiction by the State courts, of questions of this nature. The decree of the State court against the validity of a patent right, though pronounced by the court of last resort, and binding upon the parties to the suit, would not settle the question; for, notwithstanding such judgment, the Federal courts might declare the same patent to be valid, and thus the anomaly be presented of a party deprived of his property by erroneous judgment of a court of last resort in reference to the character or status of a thing which settles nothing beyond the rights of the immediate parties to the suit. Thus, in the case at bar, should the complainant succeed and the patent be declared void and the mortgage and note be delivered up, it would be entirely competent for the Federal courts to pronounce the same patent valid, and we should have the singular spectacle of a patent possessing those peculiar qualities so as to be void as to one suitor and valid as to another. On the other hand, a decree of the Supreme Court of the United States as to the validity of a patent settles the question with everybody. It is the settled policy of the law that every one is entitled to his day in court, but it does not therefore follow that because he is subject to the laws of the State he must be heard in the State courts; for he is also subject to the laws of the United States, and may, with equal propriety, be heard in the Federal courts, especially, in matters arising under the laws of the United States.

The people of the States are like the people of the United States. Their interests are identical. Withdraw the one and the other has vanished.

It is quite immaterial in what particular forum the litigant seeks to redress his real or imaginary wrongs, so that one of competent jurisdiction is open to him. His rights will be equally protected in either.

I have no sympathy with that party spirit of jealousy, seel frequently in legislative bodies, and sometimes even in the judiciary, which is blind to every consideration, either of logic or sense, that may, by any possibility, make against its own preconceived political theories. It is the highest duty of the judiciary to rise above this, as it is its glory that thus far, in the history of our country it has generally been enabled to do so. That politicians, who often seem to imagine their own individual interests paramount to those of the public, should sometimes be- found antagonistic to the best interests of society may not seem so strange, but when the judiciary so far forgets its duties as to be influenced in the slightest degree by any expectation of personal or political advantage, or, indeed by any other than a desire to fearlessly and impartially administer justice for the sake of justice itself, the last anchor to our institutions will have been loosened, and we may well- feel alarmed for their safety.

Being clear in the conviction that this Court has no jurisdiction in this case, I must direct the register to enter a decree, dismissing the bill of complaint with costs.


author: Patchin J.

text:
    Aleaxnder Miller vs. The Great Western Railway Co.
    The locus in quo of a personal tort does not oust the jurisdiction where the court ha s obtained the control over the parties. But where the parties are non-residents of the United States, at the time the tort was committed and the trespass was committed abroad, our court 8 will entertain jurisdiction only as a matter of comity, not of right.
    As a question of public policy, and in view of the clearly defined jurisdictions of neighboring States and countn'es, the remedy of the plaintiff in actions of torts should be adminstered, when service can be had on the defendant, by the courts of the locality where such torts were committed.

      Quere: Whether the same doctrine should not be applied to other actions.

      Wayne Circuit,
    May, 1870
    Motion by plaintiff for leave to amend declaration.
    This action was commenced by filing of Narr., and entry of rule to plead in "Wayne Circuit, August, 1868.
    The plea was the general issue. Upon the trial, the jury rendered a verdict for the plaintiff in the sum of $ 3000. The defendants alleged .error, and on the argument in the Supreme Court the judgment below was reversed, and a new trial ordered.
    The plaintiff’s Counsel at the March Term following, moved for leave to amend the declaration, which motion was heard by Hon. Járed Patchen, Judge of the 3d Judicial Circuit, and by him denied.
    The general facts in the case, and the grounds for the denial of the motion for leave to amend, appear from the decision.
   By the Courts

Patchin J.

This is an action for damages against the company on account of the plaintiff’s expulsion from their ears, which he averred to have been done at a distance from any dwelling or usual stopping place. All the counts in the declaration allege him to have been a passenger who had complied with all the conditions required to entitle him to be carried to the end of his joiiruey. The plaintiff is a resident of Canada, and the defendant’s road extends from the Suspension Bridge, in Canada, to Detroit. The case was tried in this Court, and a verdict rendered for the plaintiff, on the ground, among others, that the plaintiff was put off the cars not near a dwelling or a usual stopping place, in accordance with a statute law of Canada The case was then taken to the Supreme Court, and by that Court reversed, for the reason that, under the declaration, plaintiff could not avail himself of the provisions of said statute! The plaintiff now comes into court and asks to amend his declaration by striking out all that part relating to the place of the putting off. The Supreme Court in commenting upon the case, says : “ There can be no doubt that the locality of the trespass does not of itself oust the jurisdioion, when the court has lawfully obtained control over the parties. But when the parties are not residents of the United States, and the trespass was committed abroad, the right of action in our courts can only be claimed as a matter of comity, and they are not compelled to proceed in such oases. A^e think that when, upon the trial or by the pleadings, it appears that our tribunals are resorted to for the purpose of adjudicating upon mere personal torts committed abroad, between persons who are all residents where the tort was committed, the inconveniences and danger of injustice attending such controversies render it proper to decline proceeding further. The cases cited on the augument recognize the right to take this course, and we regard it as the correct one. By common law originally, all actions were local, as every fact must be tried by a jury of the vicinage.

This, however, being not a statutory regulation, but a principle of unwritten law, whioh is really human reason applied by courts, not capriciously, but in a regular train of decisions, to human affairs for the promotion of the ends of justice, according to the circumstances of the nation, the necessity of the times and the general state of things, 'was thought susceptible of modification, and the courts have modified it.”

And it is now well settled law, that the right of action, founded upon personal torts, is not confined to the vicinage. And yet in my investigations of this subject, I have been forced to the belief that very great difficulties will hereafter arise in the enforcement of this rule by the courts. When our forefathers came to this country, they brought with them the common law of the mother country, so far as it was applicable to their new condition, and have continued to adhere to it certainly with sufficient pertinacity. But how very few of those rules and regulations, applicable to the then condition of this country, confined to a few feeble settlements scattered along the Atlantic coast, with an almost unknown and impenatrable wilderness in the back-ground, filled with subtle, implacable savages, andstruggling for its very existence, fearing annihilation from every quarter, poor in all that gives a nation strength and power, can possibly be applied to America to day. Those settlements have expanded and spread out over the whole extent of this country, from the Atlantic to the Pacific; the wilderness has disappeared, and with it its savage inhabitants, until to-day he scarcely possesses sufficient vitality to serve as a counter irritant to distract the attention of the country from any real danger; rich in everything that makes a nation powerful and strong, fearing and having nothing to fear, save its own power. It cannot be the duty of the courts to follow implicitly precedents founded upon conditions so entirely different. It is not the duty of anybody to attempt to clothe a giant in the habiliments of a pigmy 1 Men and things must be looked at and grappled with as they are and not as they have been nor, indeed as they will be. Judging from the past it is quite possible that courts of justice may be conducted by means of electricity with thousands of miles intervening between the court, the witnesses and the jury, and even the eloquence of counsel be received through the same medium, but the rules of evidence of to-day would be of but little service to them.

The learned Dr. Lieber, in his work on legal hermeneutics, defines a precedent in law to be a decision arrived at by a competent tribunal after a patient inquiry into all the points bearing upon the subject decided, and says : If we are convinced after patient inquiry, which includes a thorough knowledge of the subject-matter, that W6 ought in justice to deviate from the former decisions, we do wrong to perpetuate it.”

The country has just begun to grow by means of those wonderful agencies, electricity and steam. It is free from any apparent internal or external danger, and hence the courts should scrutinize closely every proposition of law submitted to them, that they may be sure to give proper tone and direction to precedents, which will inure to the best interests of society, as it exists to-day. And while I do not shrink from the limited responsibilites in that regard devolving upon' me, as a court of nisiprius, yet I am led to approach them with very great care and caution, for I apprehend there is danger of following precedents, not at all applicable to the changed and changing condition of affairs. The great thoroughfares of the times, both of thought and more substancial freightage, are increasing with great rapidity, and the public demand this increase as is witnessed by the thousands of dollars donated by them almost every day to these enterprises. They cannot be given up. The public interests and prosperity are too closely connected with them. The commercial law has in a great measure grown up and been founded upon the high sea’s, and there were many reasons why a court should assme jurisdiction of a cause o action occurring either in a doubtful or entirely without the jurisdiction of any court. The thoroughfares were not at all times the same, perhaps visiting any given jurisdiction but once, therefore it was extremely difficult, and some times impossible, to obtain service of process. But now it is marked by clear and distinct lines, from which it never deviates, passing through well defined jurisdictions at regular intervals and over entry of which it always remains subject to service of process. Can it be claimed that rules and regulations applicable to the former can be to the latter ? It seems to me clear that to ask the question is to answer it. I am forced to believe that all actions of torts, at least when the defendant can be served with process, should be confined to the locus in quo they were committed, and I apprehend it will be a grave question hereafter whether other actions will not be classed in the same category.

It is sufficient in the case at the bar to say, both parties being residents of a foreign country when the tort was committed, the case ought to be heard in this court.

The motion must therefore be dismissed.


author: By the Court, Higbi, J.

text:
    Second National Bank of Lansing, vs. The City of Lansing.
    A city order upon its own treasurer'and payable out of a special and designated fund, is not a negotiable promissory note or bill of exchange.
    Under the Charter of the City of Lansing, an order drawn by the clerk of said City upon its treasurer, payable out of a specific fund^which was to be created by assessment upon a portion only of the houses and lands of the City, designated as being benefited by the improvement in payment of which the order was given, does not create an indebtedness against such City,

      Ingham Circuit,
    April, 1870.
    This was an action of assumpsit brought upon an order in the words and figures following:
    “ $1000 Lansing, September 2, 1865.
    Check No. 6999 and No. 403.
    Pay to J. Shine, or bearer the sum “ of one thousand dollars with interest at ten per cent, out of “ any money in your hands belonging to the Michigan Avenue “ grade fund for grading. (By order of the Common Council, “ September 2, 1865).
    A. E. Cowles, City Clerk,”

      “ Countersigned, A. A. Jennison, City Auditor.”

      Longyear & Seager, for plaintiff.

      A. £¡. Cowles, City Attorney for defendant.
    The case was tried without a jury and the facts were agreed upon by counsel.

      In 1865, and prior to the giving of this order, the Common Council of the City of Lansing determined under the authority given them by title-six of the act oí Incorporation of said City, of 1865, from section 9 of said title, to grade a street called “ Michigan Avenue,” and that the expense of the work should be assessed upon the houses and lands to be benefited by the improvement. They also designated the property tjhich they determined would be so benefited, and upon which such assessment should be made, which was but a small portion of the property within the City. A- contract was also made by said Common Council with one John Shine, for such grading, by which (amongst other things) it was provided that Shine should be paid the price agreed upon per cubic yard, in orders drawn on the fund known as the “ Michigan Avenue Grade Fund,’ upon the estimates of the City Engineer; also that “ all orders drawn upon the fund created to defray the expense of said grading, should bear the. like designation as the fund, and be known as Michigan Avenue Grade Orders.

    This order (with others) was issued upon estimates made by the City Engineer, for work done under said contract, was delivered to Shine, and by him assigned to the plaintiff at the date of its issue, for a valid consideration; of which said Common Council had notice.
    From various causes stated in the stipulation of facts, no money had been or has since been collected for the Michigan Avenue grade fund.
   By the Court,

Higbi, J.

The following are my conclusions in this case:

1st. That the City order or instrument declared on is not a negotiable bill of exchange, or a negotiable promissory note, it being payable out of a special and designated fund, and that it therefore is liable in the hands of the present plaintiff to all equities between the original parties. 1st Parsons On Notes and Bills, page 43 and note (o)

2nd. That such order, being payable out of a specific fund to be collected by assessment upon & portion only of the houses and lands within the City, does not create an indebtedness and is not evidence of an indebtedness against the City at large, and therefore that this action cannot be maintained.

The territory (houses and lands) designated, became charge able with such expense, and the property within the City, but utside of that so designated as being benefited was not to be, and cannot legally be burdened, with the expense.

It was understood by the contractor that he was to be paid from the special fund, — the contract itself so provides. And the money or fund against which these orders were drawn when assessed and collected could not rightfully be used by the City authorities for any other purpose. And when collected and paid to the City Treasurer, if it should be appropriated to any other use, or if payment of the orders should be refused, the City itself would be liable as for money had and received to the,plaintiffs use. McCullock vs. The Mayor &c. of Brooklyn, 23 Wend, 438. — Lake vs. The Trustees of Williamsburgh 4 Denio, 520. See also the eases of Beard vs. Brooklyn, and Richardson vs. Brooklyn in 31 Barbour, which hold that, as an action cannot be maintained upon the contract, an action on the case for negligence may be maintained, if the Common Council unreasonably neglect or refuse to make and cause to be collected, the special assessment. I can hardly see upon what principle this can be so held. It is indirectly compelling the inhabitants of the City to pay a debt for which they are not liable.

It seems to me that the plaintiff's remedy, in ease of neglect, is by application for a mandamus to compel the necessary action by the Common Council and there are many authorities to this effect. But that question is not at issue in this case, for the disposal of which it is sufficient that an action of assumpsit upon the contract cannot be maintained against the City.


author: Upson J.

text:
    John A. Kline vs. Joseph Blair and Samuel H. Blair.
    A notice of trial served by mail, was put into the post office on Saturday, the 7th of April, after the mail had gone, on that day. The notice was for trial on the 24th of A pril, and the attorney to whom it was sent, made affidavit that he did not receive it until the lOtb, and that it was post marked on the 9th. Held, that the notice was not served in time under rule 9, of Circuit Court Rules,
    ■When service is by mail, if the party making service desires to have the day of mailing notice counted as the day of service, he should place the notice in the post office in season for the mail on that day.

      St. Joseph Circuit,

      May, 1870.
    , Motion by defendant’s attorney to strike cause from the calendar for the term, for want of proper notice of trial.
    The action was assumpsit, and the plaintiff’s attorney made affidavit that he deposited the notice of trial in the post office at Centreville, addressed to defendant’s attorney at Three Rivers, on Saturday, the 7th day of May, 1870, the notice being for the 24th of May, the first day of the term. The defendant’s attorney made affidavit that he did not receive the notice until the 10th of May, and that the letter containing it was post marked on the 9th; also, that soon after, he called the attention of plaintiff’s attorney to the matter, and that he admitted to him that he did not put it into the mail on the 7th, until after the mail had gone on that day.

      Alison & Ahoy, Plaintiff’s Attorneys.

      O. F Bean, Defendant’s Attorney.
   By the Court,

Upson J.

The written notice of trial is required by §4,347, 2 C. L., to be served, “at least 14 days before the first day of the court, at which such trial shall be intended to behad.” This requires 14 days before the court, exclusive of the day of service. Grah. Prac. 2d Ed., 262; 5 Wend. 137; 10 Wend. 422. The first day of court is excluded in the computation of the time by the statute, and the day of service is excluded also, by Circuit Court rule 15. See also 1 Doug., 4 Mich. R. 450. There must therefore be 14 full days, in cases of personal service of notice, between the day of service and the first day of the term. ' But where the service is by mail, as in this case, Circuit Court Rule 9, requires the time of service to be increased “ one day for every 20 miles dis. tance between the place of deposit and the place addressed.’’ There should have been 15 full days then, between the day of mailing this notice and the first day of the term, but as, it was actually mailed on the 9th, if we exclude that, and also the 24th, it leaves only 14 days,' which, although sufficient in eases of personal service, is not sufficient where service is by mail. Placing the notice in the post office on Saturday, after the mail had left, is no mailing of it on that day, as it could not then be actually mailed before Monday, the 9th, and to uphold such service, would practically defeat or repeal the rule. To be counted as a service, by mailing on the 7th, it should have been dropped in the post office in season for the mail oil that day. See 2d Wend., 249, 631.


author: Upson, J.

text:
    Abbie E. Striker vs. Hamden A. Hecox.
    In cases of special appeal from judgments, rendered by justices of the peace, under g 3,836 C. only those questions can be taken up which arise on objections “to the process pleadings, or other proceedings, and the decision of the justice thereon, which would not he allowed to be made on the trial of the appeal,” and if other special points are made or raised in the affidavit for the appeal, they cannot be considered in the Circuit other than on a general appeal, the statute not having authorized them to beso taken up and heard.
    Where the justice, on objection, improperly refused to receive a written instrument in evidence on the trial below, and after that, permitted the opposite party to give oral evidence of its contents, against the objection of the party who had endeavored to give the writing itself in evidence, Held, that though both rulings were erroneous, yet, as the same objections would be allowed to be made on the trial of the appeal, they could not be specially brought up by appeal and heard as. questions oflaw'inthe Circuit Court, before the trial ofthe appeal on its merits, notwithstanding the party appealing. had set forth these points specifically, in his affidavit, on taking his appeal.

      Semble — That the objections to be brought up specially on appeal, must have arisen before final issue joined in justice’s court.

      St. Joseph Circuit,

      March, 1870.
    This was an action of trespass on the case, in which the plaintiff recovered judgment on the trial before the justice, from which judgment the defendant appealed. The subject matter in issue, was certain personal property originally belonging to the husband of the plaintiff, or to her and her husband, which the defendant was alleged to have taken and appropriated. The defendant, in his defense, claiming that he obtained title to and took the same by virtue of a written bill of sale, executed to him by the plaintiff and her husband.
    On the trial below, certain questions were raised as to exempt property, and as to fraud in relation to the obtaining of the bill of sale.
    The defendant offered to give in evidence in his defense the written bill of sale or chattel mortgage, but the justice, on the objection of the plaintiff, on^some pretense that such an instrument was against public policy, ruled it out and refused to allow it to be read in evidence before the jury, and subsequently allowed the plaintiff, under some claim that he wanted to show fraud in the transaction, to give oral evidence to the jury of its contents, notwithstanding the defendant objected and insisted that the written instrument itself was the best evidence of what it contained. The defendant set forth both these points specially in his affidavit on appeal, and the justice made full return of the facts relative thereto to the Circuit Court. The defendant having noticed the cause for trial in the Circuit, now brings up these questions to be heard and determinied as an issue of law in this court, before proceeding to the trial of the issue of fact joined therein.

      P. Eaton, Attorney for Plaintiff.

      Wm. Sadler and H. II. Riley, Attorneys for Defendant.
   By the Court,

Upson, J.

There is no question on the face ol the return in this case, — if we were permitted to look into it to decide these points on the facts there presented, — but that in each instance the ruling of the justice in relation to the admissibility of the evidence was erroneous, but we do not see how these points can be brought here in this way on special appeal.

The Statute, § 8836, C. L., in relation to affidavits for appeal from the judgment of Justices of the Peace, after providing for the case of a general appeal, adds this further clause, as to special-points, viz: “And in case there shall beany objection to “ the process, pleadings, or other proceedings, and the decision “ of the Justice thereon, which would not he allowed to he made on the trial of the appeal, the same may be set forth specifically “ in the affidavit ”

All objections to the admissibility of evidence can be raised here on the trial of the appeal, and the decisions of the Justice thereon,’ if erroneous, corrected by a new ruling in regard to them; consequently the statute does not comprehend them in its provisions for special points on appeal, and if they are set forth in the affidavit, it does not give this Court jurisdiction to hear and determine such questions in this way, even though' the justice see fit to make special return threto.

In Chaffee vs. Thomas, 5 Mich., 53 and 57, the court says that this clause in the appeal law, viz: “which would not be allowed to be made on the trial of the appeal,” implies that such objections would not be allowed to be made on the trial of the appeal upon the merits, though by setting them forth specially in the affidavit they might be adjudicated by the appellate court, as questiohs of law according to sections 3851 and 3852, C. L., and in same case on page 58, they, in effect, say that a return by a justice of matters not authorized, or not required by law, could not be judicially noticed by the court and constituted “no part of the record.” That the provisions in relation to special points on appeal was not intended to cover all errors that might be taken advantage of on certiorari, is evident from the language of the statute itself, and is incidentally illustrated by the Court in its opinion in the case of Chaffee vs. Thomas, already quoted. See 5 Mich., 59.

An appeal brings the case into this Court for a trial anew on the merits, and leaves no judgment existing in the Justice’s Court to be reversed or affirmed, in whole or in part, in this Court, as in case of á certiorari.

It would seem, therefore, that under the statute only such matters of alleged error as arise before the issue is fully made up cap be taken up specially on appeal to the Circuit Court and of these only such questions as would not otherwise be allowed to be raised on the trial of the appeal.

Matters that arise on the trial of the cause, like the admission or rejection of evidence, as in this case, can all be raised anew in this Court, and be ruled upon, in the trial of the appeal.

On this principle, we conclude, the Circuit Judge, in the 10th Judicial Circuit held, that error in the charge of the justice ¿to the jury could not be taken' advantage of on appeal. Ostram vs. McQueen, 1 Mich. Nisi Prius, 91. The appeal in this case must therefore be regularly brought for trial on the merits.


author: Brown, J.

text:
    Alexander Cameron vs. H. Dale Adams.
    The statutes, S. L. 1867,251, requires “not less than thirty nor more than sixty day’s notice” to be given of the time and place of - selling animals distrained for running at large contrary to law. Notice was posted June 26th; sale to take place July 25th. Held, The notice was insufficient.

      Kalamazoo Circuit,

      May, 1870.

      May & Buck, Attorneys for Plaintiff.

      Stewart & Edwards and Balch, Smiley & Hatch. Attorneys for. Defendant.
   By the Court,

Brown, J.

This is an action of trover brought to recover the value of a flock of sheep.

On or about the' 18th of 'June, 1868, the defendant found a flock of sheep, belonging to the plaintiff, in the highway in front of his premises, and turned them into his own lot, and in two or three days thereafter applied to a Justice of the Peace to have the animals sold, in pursuance with the provisions olJAct No, 185, Sess. L. 1867, p. 251, which requires notices of the time and place of sale to be posted in six public places in the township, city or village where the animals are distrained.

The statute provides that the sale shall be made in “not less than thirty, nor more than sixty days from the time of affixing the notices.” The •notices were written and affixed June 25th, and the sale made, in pursance with the notices, July 25th. It will be sesen that but twenty-nine full days intervened between the posting of the notices and the day of sale. In this respect the statute was not complied with, and the sale was void. 1. Doug. 450, 9 Mich., 154.


text:
    Hubbard Knapp vs. Moses Duclo.
    An affidavit is an oath, in writing, sworn before and attested by one who has authority to ad - minister the same. Hence, if the jurat is not signed, that which purports to be an affidavit is a mere nullity.
    An appeal from a Justice's Court, made upon an affidavit which is general, relating only to the judgment on the merits, brings up only the questions of fact involved in the controversy.
    On an appeal, objection cannot be taken, to process, pleadings, or other proceedings before the Justice, unless such objection was raised before tbe Justice, and his decision was rendered thereon.
    If no motion is made in the Justice’s Court in relation to the alleged defective process plea lings, or proceedings, certiorari is the only remedy by which a party can, in the Circuit Court, avail himself of the objection.

      Kalamazoo Circuit,
    May, 1870.

      Dwight May, for Plaintiff.

      J. W. Breese, for Defendant.
    The facts sufficiently appear in the opinion of the Court.
   By the Court,

Brown, J.

This was an action of replevin, and comes into this Court on an appeal from Justice’s Court-The cause was tried on the merits, without a jury.

In his final argument, defendant's counsel called attention to the fact that the jurat to the affidavit, upon which the writ was issued, was not signed, and therefore insisted that the Justice had no jurisdiction, and that the jurisdiction of this Court must he determined by that test.

The Justice had no right to issue the writ without an affidavit was first filed as required by § 3695, C. L.

An affidavit is an oath in writing, sworn before and attested by him who hath authority to minister the same. — Bac. Abr., 124. This paper has a jurat, but it is not subscribed, nor does it show on its face who administered the oath, if any was administered. It lacks vitality (1 Denio 429), and if it was properly before the Court, I should have no hesitation in holding it to be a nullity.

By § 3836 C. L., it is provided in relation to the affidavit for appeals from Justice’s Courts, that in case there shall be any objections to the process, pleadings, or other proceedings, and to the decision of the justice thereon, which would not be allowed on tbe trial of tbe appeal, the same may be set forth specifically in the affidavit.”

A general affidavit for an appeal brings up only the questions of fact involved in the controversy.— Chappee vs. Thomas, 5 Mich, 58. If questions are to be raised on appeal, touching the validity of'process, pleadings or other proceedings before the Justice, the objections must first be made before the Justice, and he must render a decision thereon, and such decision must be alleged as error in the affidavit for appeal. If no motion is made in the court below in relation to the alleged defective process, pleading or proceeding, certiorari is the only remedy by which a party can, in this Court, avail himself of the objection.

The jurisdiction of this Court is not dependent upon the jurisdiction of the Justice. The appellant has, by his general affidavit, and by the return of the Justice, which he has caused to be made, conferred jurisdiction upon this Court — jurisdiction to try the issue as presented by the pleadings. No other issue can be heard. This Court is to try that which is appealed. The appeal is from the decision of the Justice on the facts rela- ' tive to the alleged unlawful detention of the property in controversy. The appellant, in contemplation of law, says : I am dissatisfied with the judgment of the Justice, on the facts in this case, and I ask the Circuit Court to review the facts and pass judgment thereon.”

. No appeal could be taken from that which never existed or transpired. As a basis for an appeal there must have been a determination. Hence, only such matters can be heard on appeal as have been determined by the tribunal from which the appeal was taken. Courts determine facts and questions of law. When facts are passed upon, the finding may be appealed from ; when not passed upon there is nothing to appeal. When certain questions of law have been passed upon by the Justice, the statute provides for and directs how an appeal may be taken. If not passed upon there is nothing to appeal from,- and certiorai is the only way in which questions touching the jurisdiction of the Justice, and which are not presented and passed upon in that court, can be brought up. The Court will take cognizance of the fact that the ease is one of which the Justice had jurisdiction, had the “ process, pleadings and other proceedings” before him been regular; and as to whether they were regular, as already intimated by the Court, cannot be considered.

My brother Upson, of the fifteenth Circuit, has recently decided a case — Stryker vs. Hicox, 1 Mich., Nius Prius, 185, involving some of the same questions we are now considering; and I fully concur with him in the conclusions arrived at:


author: Sutherland, J.

text:
    Elizabeth McDonald vs. David McDonald.
    A bill alleging two grounds for divorce— adultery and habitual drunkenness — is not, for that reason, defective for nraUifariousness.

      Saginaw Circuit in Chancery.
   By the Court,

Sutherland, J.

The bill in this case is filed for divorce, on two- grounds : adultery and habitual drunken ness.

The defendant has been proceeded against as a non-resident, and the bill regularly taken as confessed, after publication of an order for his appearance.

There is no apparent reason for refusing the relief asked for, as the proofs satisfactorily establish all the material facts alleged, unless the bill should be deemed defective for alleging two substantive causes for divorce.

• Is the bill multifarious ? If it is, the defendant may hereafter take advantage of it, and the Court should, for that reason sua sj)onte, raise the objection.

“ By multifariousness,” says Mr. Storey, “ is meant the improperly joining in one bill, distinct and independent matters, thereby confounding them; as for example, the uniting in one bill of several matters, perfectly distinct and unconnected, against one defendant, or the demand of several matters of a distinct and independent nature? against several defendants in the same bill.” — Eq. PI. 271.

This vagueness, probably, cannot wholly be avoided in a definition, for the same author says: “The conclusion to.which & close survey of all tne authorities will conduct us, seems to be that there is not any positive, inflexible rule as to what, in the sense of Courts of Equity, constitute multifariousness which is fatal to a suit, on demurrer.” — Id. § 539. There are, however, tests so explicit that ordinarily it is not difficult to detect this defect in' a' bill, if it exists. The “ distinct and independent matters” which Judge Story says must not be “ improperly” joined, are probably not so much isolated facts set forth in the stating part of the bill, as distinct and independent cases, which do not conduce to one relief, but require separate, several, and perhaps a different relief.

Thus it is said by another author: “In endeavoring to avoid the error of making a bill not sufficiently extensive to answer the purpose of complete justice, care must betaken.not to run into the opposite defect, or that of attempting to embrace too many objects, for it is a rule of equity that two or more distinct objects cannot be embraced in the same suit. The offence against "this rule is termed “multifariousness.” — 1 Dan. Ch. Pr. 383. In a note to this it is said : “ If a bill does not pray for multifarious relief it cannot be objected to for multifariousness, though the case stated would support a a prayer for multifarious relief;” citing Dick vs. Dick, 1 Hog. 290. See note to same effect, Mitf. Plead,, 181, where the same case is cited, and also Pleasant vs. Glessock, 1 Smede & Marsh Ch. R. 17, 24; Varick vs. Smith 5 Paige 137. In the note last referred to, it is likewise said that, “ to render a bill multifarious, the matter must be not only separate and distinct, but each of a character entitling the complainant to a separate, equitable relief.” Again it is ' said by the author first quoted (1 Dan. Ch. Pr. 394). “From the above cases it may be deduced that a plaintiff cannot give in. his bill, even against the same defendant, matters of different natures, although arising out of the same transaction; yet, when the matters are homogeneous in their character, the introduction of them in the same bill will not be multifarious; and it is to be observed that the distinction will not be affected by the circumstance of the plaintiff claiming the same thing under distinct titles, and that the statement of each different tide will not render it multifarious. Thus, where a bill was filed for tithes by the rector of a parish in London, in which the title was laid under a decree madp pursuant to the 37th Hen. VII, C. 12, by which payment of tithes was decreed in London, at the rate of 3s 9d in the pound on the rents, with a charge that in case such decree should not be deemed binding, the plaintiff was entitled to a similar payment, under a previous decree, made in the year 1535, and confirmed by the same act; and in case neither of the said decrees, were binding, the bill charged that the plaintiff was entitled, by ancient usage and custom from time immemorial, to certain dues and oblations calculated according to rent, at 2s 9d in the pound, &c: A demurrer for multifariousness was overruled.” — 13 Price 478-S. C.; Robinson vs. Guild, 12 Metc.; 323.

It is said to be the universal practice in England and in the United States to oombine in one bill or libel for divorce, ns many matrimonial wrongs as can be proved, if they are all causes for the same kind of divorce.— Sec. 326, Bishop on Mar. & Div., 2 vol.; Stokes vs Stokes, 1 Misso. R. 320; Morris vs. Morris, 20 Ala., 168; Quarles vs. Quarles, 19 Ala., 363-366; Young vs. Young, 4 Mass., 429.

I conclude that where only one object is sought, the complainant is not restricted to ask it solely on one ground. It is said in the case cited from 19 Ala., that “ it is well settled that the plaintiff may aver facts of different natures, which will equally support his application.”

But if the practice was different, on a bill stating one ground for divorce, from the practice of a bill filed on another ground joined in the same bill, as if the answer to one ground could not be sworn to, and as to the other it must (Decamp vs. Decamp, 1 Green, 296-7); or if the decree would be different, as in New York, for the causes alleged in the bill in this case (Smith vs. Smith, 4 Paige 92; Mulock vs. Mulock, 1 Edw. Ch. R. 14; Rose vs. Rose, 11 Paige, 166; Johnson vs. Johnson, 6 John. Ch. R. 163; Pomeroy vs. Pomeroy, 1 John. Ch. R. 606); then the bill should be held multifarious.

No.feature of practice or of the decree, regulated by statute has come under my notice, rendering it improper, if not otherwise so, to state in one bill as causes for divorce, adultery and habitual drunkenness.


author:
      By the Court,
     Upson, J.

text:
    Leonard Bisbee vs. Frank Lane.
    writ of replevin was issuod out of the Circuit Court, on the 6th day of April, 1870, and made returnable on the 3d day of May, 1870 — being the first Tuesday in May The regular term of the said Circuit Court was to commence on the 3dTuesdayin April. At 8aid April t«rm (said writ having then been personally served and returned) the defendant by his attorney moved the Court to quash the writ and set aside the.proceedings, because the writ was not made returnable at the April term of said Court. The Court having previously announced that an adjournment of the term would be made to the 13th of May, held that it would take cognizanco of the fact that the term would not be ended by the 3d day of May, and that the return day would be in the April term, and refused to grant the motion.
    Whet lor in case term had ended before 3d of May, the return day of said writ would then have been bad 1 — Quere.

      Branch Circuit,
    April, 1870.
    Motion to quash a writ of replevin, and to set aside the proceedings thereunder.
    The writ in this case was issued April 6th, and made returnable May 3d, 1870 — being the first Tuesday in May. The regular term of the Branch Circuit Court commenced on the third Tuesday in April, being April 19th, thus intervening between the issuing and return day of the writ.
    The writ had been personally served, and the property ia question replevied, and writ returned before the first day of the term.
    On the first day of the term, defendant made his motion to quash the writ, claiming that it should have been made returnable in the April term. Prior to the making of the motion, the Court, in order to hear some eases that were not in a situation to be tried sooner, had announced that an adjourned term of the Court would be held, in continuance of the present term, on the 13th day of May, after the other eases should be disposed of.

      Parsons & Pratt, Plaintiff’s Attorney.

      L. T. N. Wilson, Defendant’s Attorney.
   By the Court,

Upson, J.

By Circuit Court Rule 13, the writ in this case might have been issued in vacation or term timé, as well as all original writs (except capias), and made returnable “ on the first Tuesday of' any month, and also on any day in term.”

This writ is made returnable on the first Tuesday of May, and having been issued on the 6 th of April previous', being after the first Tuesday in April, ordinarily the day of its return would be the regular return day for such a writ under the rule.

•But the regular term of this Court having commenced on the third Tuesday in April, it is insisted that the writ should have been msde returnable in said April term, as giving a return day subsequent to the issuing of said writ, and prior to the said first Tuesday in May; and that the writ should be made, returnable on the first return day after its issue.

If this position were correct, (and perhaps as a general .rule it may be,) still it is not applicable' to the facts in this ease-, as the present term of the Court will not have ended by the 3d ot May, the Court being aware and having already announced, that when the causes now ready for hearing shall have been tried, an adjournment of thé Court will then be had to the 13th of May to dispose of the unfinished business of the term, and we concur in the opinion that “The term continues to final adjournment for return of process.” — 1 Mich. Nisi Prius, 92.

I am not aware that there is any definite rule for determining beforehand the length of any term of the Circuit Court in this State, so as to know what days a writ can be made returnable in term, other than-on the first day. At cotnmon law the beginning and ending of each of the four terms in the year were well known and easily determined, as were also the general or common return days in each of those terms, on, which original writs had to be made returnable. — 1 Tidd’s Prac. 106.

So in the State of New York the length of the terms of the Courts of Common Pleas, and of the Supreme Court, was regulated by statute, and particularly in regard to the issuing, teste and return of process. — 2 N. Y. R. S., 197, §§ 4 & 5; 210, §11 211, § 19.

By the Constitution of this State, Art VI, Sec. 11, a Circuit Court is required to be held at least twice a year, in every county organized for judicial purposes, and four times a year in counties centaining ten thousand inhabitants. By § 993, C. L. each of the circuit judges is required, on or before the first day of November in every second year, to fix and appoint the times of holding the several terms within his circuit, for the period of two years. So far, then, as the length of the terms is concerned, it seems as stated by J udge Green, that The terms, for all purposes, continue until the final adjournment and no longer.”— Green’s Prac., 15, §46.

The writ in this Case is made returnable both on the first Tuesday of the .next succeeding month, and• also on a day in term; and the motion must therefore be denied.

But even if the first Tuesday in May had not been a day in term, I am not prepared to say that the writ would have been irregular in this respect; but even if irregular, it would have been amendable and not void. — 6 Cow., 6031 Cow., 38; 2 Wend., 302.

At common law, there must have been in general at least fifteen days between the teste and return of the original writ, that length of time being required ■ between the service and return.— 1 Tidd’s Prac., 107.

By our statute, § 5010, O. L., . writs of replevin are made returnable on “ some day on which writs in personal actions may be made returnable.”

By Circuit Court Rule 13, “ No original writ shall be made returnable beyond three month from its date, unless more than that time intervenes before the next term.”

This would seem to be the only express limitation in this State of the time of the return day of original writs, irrespective of the eomman law practice. The writ in this case was issued on the 6th of April, and the regular term began on the 19th of April — being less than fifteen days after; and we have seen that in this State the length of the terms of court are not fixed by law so as to be knowu beforehand for the return of process after the first day. We can hardly see, therefore, how it could have been irregular or improper in this case to make the writ returnable, as it was on the first Tuesday of the following month.


author: Higby, J.

text:
      In the matter of the claim of William Stevens vs. The Estate of Ebenezer Arnold, deceased.

      A party appealing from the decision of Commissioners appointed to adjust claims against the estate of a deceased person, must show by his application that he has been injured by the allowance or disallowance of a sum, to the amount of twenty dollars] at least; otherwise liis appeal will be dismissed.

      Washtenaw Circuit,

      February Term, 1870.
    William Cheever, administrator of the estate of Ebenezer Arnold, deceased, applied for an appeal from the decision of the Commissioners appointed to examine and adjust claims against said estate, in allowing a claim of William Stevens, and in such application alleged the following grounds or reasons for appeal:
    First, “ The Commissioners allowed to said Stevens a sum much larger than the amount equitably due to him from said:' deceased.’’
    Second, “ The said Commissioners did not allow in favor of .the estate of said deceased,xthe amount of credits or offsets which should be allowed.”
    A certified copy of such allowance and appeal being filed in this Court,
    O. Hawkins, of Counsel for the claimant, moved to dismiss the appeal for the reason that the causes alleged in the application were not such as entitled the administrator to appeal under the statute (O. L. Chap. 96, Sec. 22) in that it is not claimed, that the sum allowed to the claimant, and to which the administrator ol ijeeted was of the amount of twenty dollars, or that the sum disallowed as a credit or offset in behalf of the Estate was of the amount of twenty dollars.

    L. D. Norris for the administrator, urged in resisting the motion,
    1st, That the statute referred to does not apply to cases of appeal by an administrator, but the cases of appeal by a claimant against an. estate.
    2nd, But if it did apply, the causes for appeal as alleged, were sufficient.
   By the Court,

Higby, J.

The statute applies equally to cases of ajipeal by an executor or administrator, representing the estate, and by a claimant against an estate, as a reference to the two preceeding sections, in connection with section 22, C. L;, clearly shows — the only difference being that if a claimant against an estate appeal, he must give bond with security, to secure the estate against damages and costs. If the appeal is by an executor or administrator, no bond is required.

It is necessary that the party claiming an appeal should state affirmatively in his application, at least one of the causes for which the appeal is allowed: to-wit, that the sum allowed by the commissioners, and objected to by the appellant, amounts to at least twenty dollars; or, that the sum claimed by the appellant, and disallowed by the commissioners was of the amount of at least twenty dollars.

As the application for the appeal in this case fails to state either, the motion to dismiss must be granted with costs.


text:
    The People vs. Nellie Taylor.
    In a criminal action for adultery it is incumbent upon the People to show a legal marriage of one of the alle^ód guilty parties, but it is not necessary to give evidence to show that the parties to the marriage possessed the legal qualifications to enter into the marriage contract.

      Kalamazoo Circuit,
    March, 1870.
    The respondent is charged with adultery. Her counsel ask the Court to instruct the Jury that it devolves upon the People to show a legal marriage between respondent and complaining witness. That to constitute a legal marriage there must be the free consent of both parties, who must be of legal age, sound mind and not within the prohibited degrees of consanguinity, as defined in § § 8206, 3207, C. L. That the exceptions named in §§ 320(i, 3207,3208 and 3209 must be negatived by the prosecution, or the jury must acquit.

      Cl as. A Thompson, for the People.

      Arthw Brown & R. F. Hill, for Respondent.
   By the Court,

Brown, J.

To convict the respondent under this information, it must appear, beyond a reasonable doubt, that she committed the act complained of, and- that she was, at the time, a married woman, the wife of the complaining witness. This relation must be established by proof of a legal marriage; and this may be done by showing, first, that the person performing the marriage ceremony was an officer duly authorized to solemnize the marriage contract; and as a matter of law I advise you that a Justice of the Peace is such an officer ; and proof that he acts as such is sufficient evidence that he is such officer.

vThe law prescribes no form in the consummation of the marriage contract. It is the duty of the officer to determine the qualifications of the parties, before he proceeds to take the acknowledgement of their contract; and this determination is a judicial one, and for the purposes of the marriage, must be considered as conclusive until the contrary is made to appear. Being a judicial determination, and it appearing by the testimony that some evidence of the qualifications of the parties was given before the magistrate; - and that question having been passed upoD, it is the duty of the jury to assume, in the absence of any evidence to the contrary, that the parties had the legal qualifications requisite to enter into the marriage contract.

2. Did the parties as alleged, assent to and acknowledge a marriage contract between them, before Justice Allen, and did they then and there undertake .and promise to take each other as husband and wife.

Defendant convicted.

No form of words is necessary to consummate the marriage contract. ' A bow of the head in response to the proper intrrogatory, may indicate assent as well .as the words “yes,’’ or “Ido.”


text:
    Root and Midler vs. William Final.

      Saginaw Circuit,
    June, 1869.
   Sutherland, J.

Plaintiff having obtained judgment, asks term costs, five dollars, (See. 1, Sess. L. 1867., p. 84) for a term when the case was adjourned without costs to either party.

The plaintiff is entitled to the costs claimed.


text:
    Ezra Bertram vs. Moses A. McNaughton.
    The only requirement as to the filing of papers and the service of copies in case of a special motion is in rule 28, and does not include the “writing” referred to in rule 38.
    Rules of practice should be strictly enforced, though liberally construed for the furtherance of Justice.

      Jackson Circuit,

    January, 1870.
    The defendant hy his attorney, within two days after verdict entered in the Special Motion Book, in due form, a motion for' a new trial, as required by rule 29; and on the same day filed an affidavit on which the same was in part founded, and served a copy thereof on the plaintiff’s attorney as required by rule 28.
    When the motion was called up for argument, Conely, in behalf of the plaintiff, objected to hearing it, that no motion with the names of the parties and their respective attorneys endorsed thereon, as provided by rule 33, had been filed with the clerk within two days after the rendition of the verdict, claiming that the motion could not be considered as made until such paper should be filed ; and that therefore the motion was not made within two days. .

      J. I). Conely for Plaintiff.

      W. K. Gibson, for Defendant.
   By the Court,

Higby, J.

A special motion is made by entering the same, properly entitled; dated and signed, in the Special Motion Booh, distinctly stating therein, all the grounds on which the same is founded, and at the same time filing the affidavits and other papers, if any, on which it may be founded, and on the same day serving copies of such affidavits, or other papers on the attorney of the opposite party —Rules 28 and 29.

The word “ made ” in the second line Of rule 81, has the same meaning as the word “ entered, ” in the last line of said rule, and in rules 28 and 29.

The only requirement as to the filing of papers and service of copies in case of a special motion, is in rule 28, and does not include the writing referred to in rule 83.

Rules of practice, although at all times to be respected and enforced., should receive a liberal construction for the furtherance of Justice, and as the writing referred to in Rule 33, is not in terms, required to be filed within any specified time, and can be of no service as a means of information to , the opposite party or his attorney, it may be filed when the motion is called up for argument.

Objection overruled.


author: Southerland, J.

text:
    Charles E. Gillett vs. August Arnt.

      Saginaw Circuit,
    June, 1869.
   Southerland, J.

The defendant’s default for want of a plea, had been set aside and plea required to be put in in ten days. Defendant’s default was again regularly entered for not pleading.

Motion to set aside default on the ground that defendant’s attorney, being pressed with business, had forgotten it. As soon as his attention was called to second default, he served an affidavit of merits and offered to pay the costs of the default; which offer was refused.

Default set aside, on payment of costs of default and of this motion, including an attorney fee of ten dollars.

Rule 20 has no application in the consideration of this motion, as the time to plead was fixed by special order on setting aside a former default.


author:
      By the Court,
     Higby, Judge.

text:
    Gardner, vs. Peckham.
    A Writ of Replevin may be made returnable od any return day within thiee months of its teste.

      Jackson Circuit,

      January 1870.
    Motion to quash a writ of replevin and set aside the proceedings.
    The writ was tested November 3d, 1869, and made returnable the first Tuesday in January, 1870. ' The regular term of the Circuit Court commenced the fourth Tuesday in November, so that not only a regular term, but also the first Tuesday in December (a return day,) intervened between the teste and return of the writ, which was’ the ground upon which this motion to quash ^vas made.

      J, I). Conely, for Plaintiff.

      W.E. Gibson, for Defendant.
   By the Court,

Higby, Judge.

By the statute,C. L. § 5010, writs of replevin must be made returnable on some day on which writs in personal actions may be made returnable.

By rule 13, all original writs (except capias) may be made returnable on the first Tuesday of any month, and also on any day in term ; but shall not be made returnable beyond three months from their date, unless more than that time intervenes, before the next term, and in such cáse, the writ shall be returnable on or before the first day of the next term.

This is the only limitation in this State ot the time for return of original writs. Although the party causing the writ to be issued may have it made returnable on the first Tuesday in each month or on any day in term. Yet it is not obligatory upon him to make it returnable on the first return day, provided no more than three months intervenes between the time of issuing the writ and the return day. I can give no other reasonable construction to the last clause of the rule — as the time between the issuing and return of this writ was less than three months, and it was made returnable on a regular return day — the motion must be denied.


author: Patchin, J.

text:
    Miles H. Conrad vs. John Bitroff.
    When a Justice of the Peace adjourns a case before him after the first adjournment, on the application of the Plaintiff, without cause shown, the' defendant not being present or consenting thereto, the Justice thereby looses jurisdiction, as the case is thereby discontinued 8nd all fur her proceedings had-therein are coram non-judice, anda judgment rendered thereafter being utterly void can be impeached in any collateral suit or proceeding.

      Wayne Circuit,

      July, 1870.
    This action was trespass de bonis asjiorlatis, commenced before a Justice of the Peace, for the unlawful taking and selling of a buggy. The case was appealed to the Wayne Circuit Court, and tried by a jury.
    On the trial of said cause the counsel for plaintiff gaveevidence . tending to prove that one Augustus Schuferdt, by the direction of the defendant, took and sold the buggy in question against the will of the plaintiff. The defendant gave evidence tending to prove that said Augustus Schuferdt was a Constable and that he seized and levied upon the buggy in question by virtue of an execution issued upon a judgment rendered in another suit in favor of Bitroff against Conrad in a Justice’s Court.
    The plaintiff gave rebutting testimony, showing that before said judgment on which said execution was issued, was rendered, the Justice adjoumed said cause on the application of Bitroff, plaintiff therein, without cause shown, in the absence and without the consent of the defendant.
    This w'as shown by the parol testimony of the justice and his docket, under objection.

      Ward & Palmer, for Plaintiff,
    cited 9th Mich., 264 — 268, 1 Doug. (Mich.) 890, and several.other cases. .

      Geojye H. Prentis, for Defendant,
    cited 6 Barb. 621, and other cases.
    In submitting the cause to the jury, thé counsel for the piaintiff requested the Court to charge the jury among other things,
    1st. That the cause of Jnhn Bitroff vs. Miles H. Conrad being adjourned, after the first adjournment from August 20th to August 24th, 1869, on application of the plaintiff therein, without cause shown, the defendant not being present or consenting to said adjournment, such adjournment was a discontinuance of said cause and all proceedings in said suit thereafter were illegal, and the execution issued thereunder void.
    2d. That any matter attacking the jurisdiction of a Justice1» Court can be taken advantage of in the suit in which the matter is raised, or in any other suit.
    The jury returnd a verdict in favor of the defendant, and the plaintiff made a motion for a new trial, on the suggestion of the Court that the law points might be more fully discussed.
    On the argument of the motion fora new trial, it was conceded by the counsel for defendant, that the irregular adjournment was a discontinuance of the cause, but that the proceedings thereafter in the cause could only be set aside on certiorari.

   By the Court,

Patchin, J.

It is conceded that the judgment on which the execution in question was issued wasinvalid because of the irregular adjournment, but it was claimed by the counsel for defendant that the judgment could not be attacked collaterally, and I so held in the trial before t.he jury.

The case in 1 Douglass, I think settles the question conclusively, that when the justice has not jurisdiction to render the judgment it may be attacked collatteraily. Therefore the refusal to charge the jury as requested was wrong, and the motion for a new trial must be granted.


author: O’Grady, J.

text:
    James R. Johnston, Guardian of the Estate of Ephraim Vaughn, Charles Vaughn, et al., vs. The Atlas Mining Company.
    In an action at law by the vender, to recover damages for the breach of a contract for the eale of land, the measure of damages is not the full contract price, but the difference between that price and the price for which the land could have been sold at the time of the breach A new trial may be ordered upon a particular question, without re-opening the whole case.
    When the defendant gave no evidence at the trial tending to show the value of the land at the time of the breach, nor offered any objection to the measure of damages as claimed by the plaintiffs, the granting of a new trial will be conditioned upon paying the coBts of the former trial, together with the costs of the motion.

      Keweenaw Circuit,

      July term, 1870.
    Suit was brought to recover the purchase or contract price of a certain tract of land, supposed to be valuable for mining purposes, in Keweenaw County. Trial, by a jury, was had at the March term, 1870, and a verdict rendered in favor of the plaintiff, for the full contract price, $20,500.00, with interest, and amounting to $27.675.00.
    This verdict the defendant afterwards moved to set aside, for various reasons, and among others as being excessive — the jury having disregarded the law laid down by the Court in certain charges for the defendant — which were in substance that there could he no verdict for the purchase price, unless the title to the premises had passed to the defendant, or in other words, that the plaintiff could not recover the purchase price of the land and keep the land too.

      Hubbell & Ghadbourne. for the motion
    cited Sedg. on. Dam., 3d Ed. marginal, p. 190; Old Colony Railroad Co. vs. Evans, 6. Gray; Lewis vs. Lee. 15 Ind. 499.

      Dan. M. Ball, contra,

      cited upon this point Sedg. on Dam., p. p. 296, 7, 8, and 9; 17 Barb., 264 — and insisted that the damages found by the jury for the purchase price, with interest, were correct. Defendant purchased thé land, plaintiffs were ready to deliver a deed at- any time. The money then should have been paid into the Probate Court or to the plaintiff on delivery of the deed.
   By the Court,

O’Grady, J.

This is a motion for a new trial based upon several grounds, and among them that the damages are excessive. It is said to be “difficult to draw a line as to the granting of a new trial; and perhaps the. granting or not granting of it must always depend upon the circumstances of the ease.” Also “ that the granting of a new trial, like the granting of a continuance, or taking off a default rests in the discretion of the Court, is fully establsihed by all the authorities. And an infinite variety of considerations which can never be brought to the test of a strict rule, ánd which must be referred to the discretion of the Judge, are the basis of determination.

In the exercise of such discretion I shall proceed to . entertain and consider the motion, but only on the point of excessive dama ges — for I must deny it as to all the others. The correct principle is, as laid down by the common law rule, that a party' can only recover such damages as he has suffered.

The evidence at the trial tended to show that the defendant never acquired a legal title to the premises in question, that there were several dependent acts to be performed mutually — as the payment or tender of moneyjand mortgage, or the delivery or ten der of a sufficient deed; and that there was negligence imputable to both parties, only differing in degree, in this behalf. Then what is the true measure of damages ? If the legal title did not pass to defendant it surely can not be the contract or purchase-price with interest.

The principle of the common law must be applied, and which I hold is laid down correctly in Old Colony Railroad Co. vs. Evans and Lewis vs. Lee, viz : In an action at law by the vender, to recover damages for the breach of a contract for the sale of land, the measure of damages is not the full contract price, but the difference between that price and the price for which the land could have been sold at the time of the breach.

A new. trial may be ordered upon a particular question, without reopening the whole case. Thwaites vs. Sainsbury, 7, Bing., 437. When the damages are excessive a new trial may be granted, to determine the damages, without opening the whole case. Boyde vs. Brown, 17 Pick, 453; Robbins vs. Townsend, Id., 345; Hamilton vs. Sale, 6, S. and M., 634.

The Court may allow a remittitur of fche excess of damages found, and overrule a motion for a new trial; but in this case there was no evidence to establish what that excess should be.

A new trial is granted, but it must be confined to the single point of determing the damages without opening the whole case.

And, inasmuch as the defendant gave no evidence at the trial tending to show the value'of the land, at the time of the breach, nor offeered any objection to the measure of damages, as claimed by the plaintiffs, they must pay the costs of the. former' trial as well as the costs of this motion.


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    Zachariah Robeson and Wm. B. Warford, vs. Origin Bingham, Lucius Phetteplace, Frederick Sanford and Henry Sanford.

      Boiible costs, under our statutes mean common costs and one-half added thereto.
    Where, under $ 3736,2 Comp. Laws, the plaintiff woe entitled to doub le costs, and the taxing officer had actually doubled the common costs, a retaxation was ordered to be made as above, on the same basis as specified in £ 5605,2 Comp. Laws.

      Branch Circuit,

      July, 1870,
    This was an action of trespass for breaking and entering the close of plaintiffs and cutting down and destroying their fruit trees. It was originally commenced in Justice’s Court, where the defendants, who acted under directions of the Commissioners of highways, interposed a plea of title under the statute, and the cause was thereupon certified by the justice to the Circuit Court. On the trial in the circuit, plaintiffs recovered judgment for $100 damages and double costs, under §3736, 2 Comp. Laws.
    Subsequently on application to a Circuit Court Commissioner the plaintiffs had their costs taxed at double the amount of the common or single costs in the case, to which defendants excepted, and thereupon moved the Court for a re-taxation thereof. .

      Parsons & Pratt., Defendants Attorneys.

      E. G. Fuller, Plaintiffs’ Attorney.
   By the Court,

Upson, J.

Under § 3786, 2 C. L., the plaintiffs in this case are entitled to recover “ double costs,” and the taxing officer taking the words, in their apparent literal sense, has actually doubled the single costs in his taxation. This, construction is erroneous. Double or treble costs are not to be understood to mean according to their literal import twice or. thrice the amount of single costs.”

When a statute gives double costs, the true mode of estimating them is, first, to al’ow the plaintiff or defendant the single costs, including the expenses of witnesses, counsel fees, &c., and thence to allow him one half the amount of the single costs, without making any deduction on account of those expenses.” 2, Tidds Prac., 987, 988; 4, Barn. & Cress, 889; 7, Dowl & Ryl, 484.

“ If treble costs are given, they are calculated thus: 1, the common costs; 2, half of these; and then half, of the latter.” 1, Chit. Prac., 27; 4, Barn. & Cress., 154; 1, Chit, Rep., 137.

This is the rule at Common Law law and it is embodied substantially in § 5605 of our comp, laws as to double costs.

This section of our statute is also copied from the Revised Statutes of New York, (2 N. Y. R. S., 617, § 24,) and the Supreme Court of that State in commenting upon and giving a construction to that section say, The legislature have now defined what they mean by allowing double costs, viz: the common costs and one half thereof in addition, adopting the rule of computation common in England, and the Court in the same case adopt the common law definition of treble costs as above given. 9 Wend., 443; and in 9 Wend., 464, the Court in refer, ring to the same statute say that it gives “ double costs” and in the 18th iV. T. Reports, 260, the Court held that the statute was still in force and not repealed by the code, and after quoting the words, “ recover the amount of his taxed costs and one half thereof in addition,” they add this comment, “ being what is ■called double costs, and by the next succeeding section the double costs awarded shall be deemed to belong to” &c. The succeeding section in the N. Y. Statute so referred to is the same as § 5606, in our Compiled Laws and stands in the same connection.

The decision in 9 Wend., 448, construing this statute as a definition of double costs was made in 1832, long before the enactment of our Revised Statutes, and independent of the common law definition of the words double costs,” our legislature in adopting this statute from the statute of New York would be considered as adopting it with the construction her courts had then put upon it.

The motion for retaxation must be granted with $3 costs.


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    George W. Woodward et al. vs. Augustus W. Till.
    When a lot in a village has been adopted as a homestead, it will not cease to be such by the owner temporarily vacating it in consequence of his house being destroyed by fire, nor though the dwelling house erected afterwards may include an apartment to be occupied as a store
    The Coart may perpetually stay execution as against a homestead, because it is such.

      Bay Circuit,

      April, 1870.

      J. W. McMath, for Plaintiffs.

      G. M. Wilson, S. M. Green, for Defendant.
    Motion tor perpetual stay of execution as against a certain lot claimed as a homestead, which has been levied on and advertised for sale.
    In 1866 the defendant purchased a lot in the village of Portsmouth, and resided on it, with his family, until some time in 1867, when the house thereon was destroyed by fire. He has since lived in a rented house, on the opposite side of the street # Not being able to rebuild at once, his lot remained vacant and unoccupied until 1869, when he built another house, constructed for living in with his family, and to have a portion to occupy for a general store. The execution in question was levied on the lot on the 31st day of December, 1869. At that time the building was nearly completed. It could have been occupied, but on account of the delicate state of the defendant’s wife, at that time, he did not commence to occupy until February, 1870. Since that time he has lived on that lot. He states, in his affidavit, that when he purchased the lot he intended it as a homestead, and has never abandoned that intention; that he vacated it in consequence of the fire, and commenced to rebuild as soon as his circumstances would permit. He has not selected nor occupied any other premises as a homestead.
   By the Court,

Sutherland, J.

-Ownership and occupancy are - all that is required in such a case to secure a right of homestead, and the defendant acquired such a right in this lot before the fire. 7 Mich., 488. The absence of the defendant from the lot, and want of actual occupancy since the fire, are explained by that accident; and it appearing that no other homestead has been selected, that there has been an intention all along to rebuild on and occupy these premises, and to claim them as a homestead, the temporary interruption of the occupancy caused by the accidental necessity was not in fact, nor in law, an abandonment. He is entitled to be regarded as occupying in such sense as to presume the right of exemption. 16 Mich., 76; Id., 157; Davis vs. Kelley, 14 Iowa, 524; 12 Ohio St., 431. The circumstance that the defendant proposes to use, or is using, a part of his house for a' store, will not necessarily prevent the building being treated as his dwelling, and the lot as his homestead. If the facts essential to a homestead exist, they will establish the right. There is here the quantity, without selection or separation from other lands : the lot is within the constitutional limitations in respect to value, and the ownership and occupancy upon it as a place of residence. If consistently with these facts a portion of the premises, not separable from the rest, is used for a store, the exemption will embrace that portion, and such use will be no prejudice to the right of homestead. Prior vs. Stone, 19 Texas, 371; 18 Ill., 19; 21 Id., 40, 178; Dyson vs. Sheley et al., 11 Mich., 527.

As to the power of the Court to stay execution, see 16 John., 4; 15 Id., 395; 18 Id., 505; 6 Hill, 247.

Motion granted.


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    Hugh Richardson vs. Richard Talbot.
    1. The omission of the witness to state, in answer to croas interrogatories, particulars of transactions which appear to have transpired under his observation will not be cause for suppressing his deposition, where he states that he is unable to give the information sought.
    2. Where the direct interrogatory inquired who were the officers of a bank in 1863. and the witness stated their names; and he was requested, in a cross interrogatory, to state who were the officers of that bank in 1863, and since, and he answered only by referring to his answer to the direct interrogatory — held not sufficient.
    *. On a motion before trial to suppress a deposition on the ground that the cross interrogatories are not fully answered, the Court will not inquire into the materiality of the unanswered interrogatory.

      Saginaw Circuit,

      March, 1870.

      Webber & Smith for the Plaintiff.

      Wm. A. GlarJc tor the Defendant.
    Motion in behalf of the defendant to suppress depositions taken under a commission, on formal objections.
    A witness was asked, in cross interrogatories, whether he had any interest in the assets of the Gore Bank, Canada, and in regard to sundry other things which his deposition shows must have transpired under his observation. He answered that he had been out of health for considerable time, and is still sick, and that he is unable to answer these questions for want of knowledge.
   Sutherland, J.

Ilefd, that it must be left to the witness to say whether he can answer such questions. If he testifies that he has no present knowledge on the subject, when it may be fairly presumed that he has had knowledge, his denial only affects his credit — it does not render his deposition inadmissible as though he had refused or silently omitted to answer.

In answer to a direct interrogatory, he stated who were the officers of the Gore Bank in 186; ; by a cross interrogatory he was requested, among other things, to state who were in 1863, and hinca, the officers of that bank. He replied that he had answered -in his reply to the direct interrogatory. Held not sufficient. 19 Wend., 437; 25 Id., 259; 3 Hill, 333.

It was suggested, on the part of the plaintiff, that the question was immaterial; but it was held that it could not properly be determined in advance of the trial whether the question would be material or not. Such questions should be postponed until the trial; and this practice is indicated by the statute, § 4257, C. L.


author: Pratt, J.

text:
    Anonymous.
    Notice of Trial, — The first notice of trial of a canse appealed from a Justice’s Court may be an eightxlay notice; subsequent notices of trial must be given fourteen days before term.

      Lenawee Circuit,

      June, 1870.
    This cause, on appeal from a Justice’s Court, had been noticed for trial at a previous term, and was now noticed a second time for trial, eight days before term.

      W. W. Osborn moved to strike the cause from the calendar for want of sufficient notice.

      C. E. Weaver, contra.

   By the Court,

Pratt, J.

Under C. L., § 3854, the first notice of trial in a cause coming into this Court on appeal from a Justice’s Court, is sufficient if served eight days before the term at which the trial is intended to be heard, whether such term be the first or any subsequent one after the appeal was taken. But all notices of trial in such cases after the first notice, must be served at least fourteen days before the first day of the term at which the trial is intended to be had. C. L., § 4347.

Motion granted.


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    People vs. Patrick Cunningham.
    It is not essential, i*s a matter affecting tlxe jurisdiction of the Court, that it should appear affirmatively that the respondent has had or waived an examination.

      Bay Circuit,

      April, 1870.

      Isaac Marston, Prosecuting Attorney.

      Crier & McDonell, for the Respondent.
    Information for burglary.

      On the informátion being read to the respondent, his counsel objected to his being required to plead, because there is no return of the examining magistrate showing, and it does not otherwise appear, that he has had or waived an examination.
   By the Court,

Sutherland, J.

This Court has general criminal jurisdiction, and as prosecutions are, in general by information, such cases are not special proceedings. It is therefore not necessary, in order to show that the prosecuting attorney has a right to file an information against a person in custody, that he should first prove that the essential preliminary proceedings have been had. They are presumed until the defendant disputes them by affidavit or plea in abatement. Washburn vs. People, 10 Mich., 872. The accused is delivered over to this Court by the magistrate’s warrant to commit for trial, or by the recognizance. In this manner the case is regularly brought into this Court; by this course or routine, prescribed by statute, the prisoner is brought under the jurisdiction of this Court in respect to the charge stated in the warrant or recognizance. He is brought in to be arraigned or called on his recognizanc^ for that purpose, without any other recorded proceeding than the filing of an information.

As there has been no showing that overcomes the legal presumption that the defendant has had or waived an examination, his objection to pleading is overruled.


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    People vs. Thomas Sumner.
    1. An information for obtaining money by false pretences should set forth the transaction so as to show how the making of the alleged false representation operated as a fraud to induce the'payment.
    2. But on a motion in arrest of judgment the objection is not available if the offence is charged in the language of the statute.

      Bay Circuit,

      December, 1869.

      Isaac Marston, Prosecuting Attorney.

      Peek & Clark, Attorneys for Respondent.
    Information for obtaining money by false pretences. Motion to arrest judgment.

      The information states that the respondent, at the time and place stated, “falsely and feloniously pretended to Geo. Weather, by that he,' the respondent, was the owner of a certain described parcel of land, and that he would sell to Weatherby the black-ash timber ther.eon standing and growing; by means of which said false pretences said respondent did then and there designedly and feloniouslyjiobtain from the said Geo W. $79.28 of his money, with intent then and there to cheat and defraud him: whereas in truth and in fact said Sumner did not own said lands, and had no right to sell the black ash or any other timber thereon standing.”
   By the Court,

Sutherland, J.

It is contended in behalf of the respondent in arrest of judgment:

1st. That the information should state the sale or bargain by which the money was obtained, and the circumstances show ing how the pretence of ownership contributed to induce the payment. A similar objection was made in Commonwealth vs Strain (10 Met., 521), and was held fatal, and the judgment was arrested. The Court distinctly held that when the alleged false pretences were injurious only by inducing another person to buy the article as to which such false representations were made, such sale or offer for sale must be set out as part of the facts relied upon, and as a material allegation in the description of the offence.

But the point is not available in this State in arrest of judgment where, as in this case, the offence is stated in the words of the statute. The statute provides that when the offence has been created by any statute, or the punishment of such offence has been declared by any statute, the indictment shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute. § 6059, C. L.

2. It is secondly objected that the pretences are not stated to have been knowingly and designedly made. That precise statement is not required. The information must state that the accused party did designedly obtain money by means of a false pretence, with intent to cheat or defraud. This description of the offence imports that the respondent knew the pretence to be false, and in that sense the proof must establish it.

The. case of Regina vs. Philpotts, 1 Car. & Ker., 112, is not opposed to this view. The indictment in that case was defective according to this test. The same may he said of Regina vs. Henderson, 1 Car. & Marsh, 328.

3. It is thirdly objected that one of the alleged false pretences is that the defendant -would sell the black-ash timber, and it was not a representation of an existing fact.

The statement ,in question is not a statement of a pretence, but an offer based on the preceding pretence of ownership.

4. The objection that the information does not correspond with the complaint is not well taken. The offence is particularly stated in the complaint, and a comparison of it with the information fully establishes the identity of the charge.

Motion denied.


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    In the matter of the claim of Abraham Shear vs. The Estate of John L. Shear, deceased.
    It is not necessary that a person appealing' from tho decision or report of Commissioners in allowing a claim against the estate of a deceased person, should show by his application for appeal that he appeared before the Commissioners and objected to the allowance.
    It is sufficient if it appear by such application that the sum allowed by the Commissioners, and to which he then by his application objects, is at least twenty dollars.
    An executor may appeal from such allowance, and contest such claim, if the testator himself* if. living, conld have done so.
    Whether, as the foundation for a motion to dismiss such appeal, the fact that an appellant in such case had parted with his interest in the estate, may be shown by affidavit or other evidence outside the record — Query.
    A and B were children and the only heirs-at-law of S, who died intestate. A was appointed administrator of the estate. B then gave A a deed of conveyance granting to him all his interest in the estate of S, and at the same time received from A a bond reciting such conveyance, and conditioned that A would, within one year after the estate should be settled, pay to B whatever his interest so conveyed should amount to, and A afterwards procured theallowanceof a claim against the estate in his own favor. Held, that the conveyance and bond must be construed as one instrument, and that B had not so parted with his interest in the estate as to prevent him or his executor from appealing from such allowance and contesting the claim.

      Washtenaw Circuity

      February, 1870.

    Motion to dismiss appeal, by C. Joslin, Esq., in behalf of Abraham Shear, the Claimant and Appellee.

      Hon. E. Lawrence, for Appellant, opposing.
   By the Court,

Higby, J.

It appears that Abraham Shear and Benjamin Shear were brothers, and the only heirs-at-law of John L. Shear, deceased; that Abraham was administrator of the estate of said deceased; that an arrangement was effected between Abraham and Benjamin, whereby Benjamin conveyed to Abraham, by a quit-claim deed, certain real estate therein described, and also all his interest in the personal esta,te of said John L. Shear, deceased. (On hearing the motion, an affidavit of Abraham was read, stating, in effect, that the deed described all the estate of said -deceased.) It further appears that, at the same time of the execution and delivery of such deed, a bond, in a penal sum, was executed by Abraham to Benjamin reciting the deed, and conditioned that “ if the said Abraham Shear shall pay to the said Benjamin Shear the full amount which he, the said Benjamin Shear, is, or may be, entitled to, as heir to the said John L. Shear, within one year from the date hereof, or within one year after said estate shall be settled,” then said obligation should be void, otherwise of force — the bond and its condition being the consideration for the deed. Afterwards, Benjamin died, having made his will, the appellant being the executor.

Abraham afterwards made a claim against the estate of John L Shear, which was allowed by the Commissioners, and from such allowance the present appeal is taken.

This motion is to dismiss such appeal, and the following grounds are alleged:

1st. That it is not alleged in the reasons for appeal that the amount of $20.00 more was allowed, which was objected to before the Commissioners, and it does not appear that any objections were made before the Commissioners.

2d. That the appellant, Chauncey Lott, executor, &c., has no interest as creditor, devizee, legatee, or heir of John L. Shear, deceased.

3.d. That Benjamin Shear, deceased, had, before his death, parted with and conveyed all his interest in' the estate of. John L. Shear, deceased, to Abraham Shear, the administrator.

It should be stated that neither the quit-claim deed from Benjamin to Abraham, the bond made by the latter, or the affidavit referred to, appear upon the record, but were introduced as extrinsic evidence on the hearing — the deed and affidavit by the appellee in. support oJ his motion, and the bond by the appellant, in resisting it.

First. The first reason for dismissal is based upon the language of the second subdivision of section 2937 of the Compiled Laws, and on the words, “being objected to,” as therein used.

The statute is as follows: “No appeal shall be allowed from the decision and report' of the Commissioners, except in the following cases:

«2 * * *
“ 2. When the Commissioners shall allow any claim, in whole or in part, and the sum allowed, being objected to, shall amount to twenty dollars.”

It is insisted by counsel that under this subdivision no appeal can be allowed, except by a person who has appeared before the Commissioners, and there objected to the allowance of a claim, and that at least $20.00 in amount of the claim so objected to has been allowed, notwithstanding such objection.

My attention was called to this subdivision, and the construction thus claimed for it in a former case at this term. The decision of that case rendered it unnedessary to express any opinion on this question. It¡ppeared to me, however, at that time, arid a more mature consideration of it how confirms me in the opinion, that the construction contended for is too strict and technical. Any person interested in the estate, as creditor devizee, legatee or heir, is authorized to appeal, if the administrator declines (§ 2944). By the construction contended for each person claiming as creditor would find it necessary to attend before the Commissioners and object to the claim of every other creditor; every devizee, legatee or heir would be subjected to the same necessity, otherwise the right to appeal in case an unjust or wrongful claim were allowed, Would be waived by each person so neglecting.

This would render the examination of claims before Com missioners a tedious and complicated proceeding, while it was evidently designed to be an informal, direct and simple one.

I think the better construction is, that the person appealing shall show by his appeal that the sum allowed by the Commissioners, and to which he then by his claim of appeal objects, is at least twenty dollars. This view is not only more in harmony with the general spirit ot the law, but is the more natural construction of the words, “ being objected to.” They imply present time — the time the appeal is taken — and not past time, or the time of the allowance by the Commissioners, for which purpose, “ having been objected to” would be more appropriate*

This objection, therefore, is not well taken.

Second. This objection must be overruled. Chauncey Lott, as an individual, does not make this appeal. . He does so as executor, representing the estate of Benjamin Shear, deceased, standing in his place and vested with all his interests, including his interest in the estate of John L. Shear. 1 have no doubt he is entitled to bring this case here by appeal, if Benjamin Shear himself, as an heir-at-law of John L., could have done so, if living. The case of Arnold vs. Waldo, 86 Vt. 204, fully sustains this view.

Third. But it is claimed by counsel that Benjamin Shear, if living, could not'have appealed in this case, for the reason that before the allowance of this claim by the Commissioners, he had parted with all his interest [in the estate of John L Shear, deceased, and consequently was a mere'stranger to the estate.

In support of this the deed and affidavit were read, and (contra) the bond as before stated.

The hearing of the motion upon this branch of it was objected to, or rather, the introduction of the deed and affidavit, as evidence was objected by counsel for the appellant, he claiming that a want of jurisdiction as a ground for such a motion as the present could not be shown by extrinsic evidence; that the defect for such a purpose must be apparent upon the reeord, and the case before cited, Arnold vs. Waldo sustains this view.

But I am satisfied the objection cannot be sustained on the merits, admitting all the papers in evidence. The deed and bond were executed simultaneously, were parts of the samé transaction and must be continued together as one — and show clearly that Benjamin Sheer did not part with his interest in the éstate. That his interest remained the Same after the execu tion of the papers as before. Abraham, who was administrator, of his fathers estate, was to pay Benjamin ultimately, after the settlement of the estate what his interest as an heir would amount to — the papers being executed apparently to facilitate the settlement of the estate, by vesting the legal title to the whole estate in Abraham as a trustee — and Benjamin’s interest iri preserving the estate, or resisting the allowance of unjust elaims and in scruing an economical administration remained «nimpaired. The amount he would ultimately receive from Abraham, the administrator, by the condition of the bond, would depend on the amount of the estate, arid the economy and integrity with which it should be administered by Abraham. The papers therefpre do not disclose a want of interest in Benjamin Sheer deceased, or his executor. The motion is overruled with eosts.