author: Mtjndy, J.

text:
    Findley v. The People.
    A plea in abatement to an indiement, that states several distinct facts having no relation to, or dependence upon each other, is bad for duplicity.
    A plea in abatement should be certain to every intent, and conclude by praying judgment of the indictment and that it may bo quashed, and must be verified by affidavit.
    Where the grand jury have finished their business and been dismissed before the adjournment of the court without day, they may be re-summoned at any time during the term, to inquire into an oifenoe committed subsequently to their discharge ; and grand jurors who were originally summoned, hut did not appear and act with their fellows before they were dismissed, may he re-summoned, and on appearing and being sworn and empanneled, may act with them on their sooond convocation.
    A grand juror who appears after the jury have been sworn and received the charge of the court, may or may not be sworn, in the discretion of the court, where there are enough grand jurors without him.
    It is not error for the court, after the jury have retired to consult of their verdict, to permit them, on their request, to have the Revised Statutes in their room, although the same is objected to by the prisoner’s counsel.
    Error to Oakland Circuit Court. Indictment for murder,

      T. <L Brahe, for Findley.

      Stevens, ¡prosecuting attorney, for tbe People.
   By the court,

Mtjndy, J.

On tbe 8tb of January, 1848, it being an adjourned day of tbe September term, 184J, of tbe circuit court for tbe county of Oakland, Findley, tbe plaintiff in error, was indicted for tbe murder of Simpson Buck. Upon bis arraignment, be pleaded not guilty; but was afterwards permitted by tbe court to withdraw that plea; whereupon be put in tbe following plea in abatement: “And the said John Findley comes, &e., and says, that the said bill of indictment ought not to be bad, or further prosecuted against tbe said John Findley, because tbe said bill of indictment was not found by tbe grand jury inqmring in and for tbe body of tbe county of Oakland, at tbe September term of tbe circuit court for said county, in tbe year A. D. 184V,; but that tbe said bill of indictment was found by a body of men .claiming to be tbe grand jurors of the people of tbe state of Michigan, ■inquiring in and for tbe body of tbe said county, on tbe 8th day of January, A. D. 1848; and that on tbe said 8th day of January, A. D. 1848, after tbe said body of men were sworn and charged by tbe court, and were retiring, one Henry Barber, who was of and belonged to the grand jurors of the people of the state of Michigan, inquiring in and for tbe body of tbe county of Oakland aforesaid, appeared in said circuit court and desired to be assembled and convened with tbe said body of men, who found tbe said bill of indictment, before tbe said body of men bad retired to consult upon tbe said bill; and tbe said Henry Barber was, on tbe said 8th day of January, 1848, and before tbe finding .of tbe said bill, rejected and prohibited by the said circuit court, with-

out' any legal or justifiable cause, from assembling or convening with the saicj body of men, claiming to be grand jurors as aforesaid, and by whom the said bill of indictment was found; and this the said John Findley is ready to verify, &c. And the said John Findley further saith, that the said bill of indictment ought not to be had or further prosecuted against him, the said John Findley, because the said bill of indictment was found against him, the said John Findley, by a body of men claiming to be the grand jurors of the people of the state of Michigan, inquiring in and for the body of the county of Oakland, at the September term of the circuit court for the said county, in the year A. D. 184V, of and among which said body of men was one William Hibbard and one Peter Richardson, who had been originally drawn and summoned as grand jurors, and who were not sworn as such, which said William B. Hibbard and the said Peter Richardson were not of and did not belong to the grand jurors of the people of the state of Michigan, inquiring in and for the body of the county of Oakland, at the September term of said circuit court for the year A. D. 184V; and this the said John Findley is ready to verify.”

This plea upon demurrer was adjudged to be bad. It was obviously bad on several grounds, 1, Qn the groipid of duplicity: it states several distinct facte, haying no relation to or dependence upon eaph other— as, that Henry Barber was improperly rejected by the court from serving upon the grand jury, and that Hibbard and Richardson were improperly empanneled upon that jury. There is also a great disregard of precision and accuracy, if there is not repugnancy in jts statements, A plea in abatement should be eertaip to every intept, and b© pleaded without any repugnancy. 1 Chitty’s Pl. 492. It should also have a proper conclusion, praying judgment of the indictment and that it may be quashed. 1 Chitty’s Crim. L. 440. It is said, in 1 Chitty’s PI. 496, “great accuracy is necessary in the form of all pleas in abatement, as well in the commencement as in the conclusion, for it is said ‘they malee the plea'. A plea which concluded with praying judgment ‘ if’ (instead of ‘ of ’) the plaintiff’s bill, was held bad on demurrer, though the words ‘ and that the same may be quashed,’ were also added.”

To this plea there is no prayer of judgment. The plea is not verified by affidavit. Section 33, chapter 164 of the Revised Statutes provides, that “no plea in abatement, or other dilatory plea to the indictment, shall be received by any court, unless the party offering such plea shall prove the truth thereof by affidavit, or by some other evi, denee.” Without such proof, it is no plea — a mere nullity. 3 Burr, 1617; 2 Stra. 1161; 2 Barn. & Cress. 618.

But we axe all of opinion that the grand jury was properly constituted. These are the facts of the case: the grand jurors summoned at the September term, having finished the business before them, were dismissed by the comt; afterwards, and before the adjournment of the comt for the term, the crime for which the defendant was indicted was committed. At the common law it would haye been .competent for the comt to have commanded another grand jury to be summoned and sworn. 2 Hale 156; 1 Chitty’s Crim. L. 314. Our Revised Statutes, sec. 11, chap. 164, provide that, 11 when the grand jury attending any comt shall have been dismissed before the court is adjourned without day, they may be summoned to attend again, in the same term, at such time as the comt shall direct, and for the despatch of any business that may come before them.”

Hibbard and Richardson, though belonging upon the list of grand jurors drawn .and summoned to attend the September term of the comt, for some reason, and it matters not what, were not at the commence, ment of the term sworn and empanneled; when the event had occur, yed which made proper the convocation a second time of the grand jjn-y, they, with the others named in the grand jury list, were summoned, and appearing were sworn, and with the others empanneled, We do not see upon what principle it .can be said, that these two per, sons weye not qualified grand jurors, probi et legales homines. It is said that they weye not s>yom at the commencement of the term; and though grand jurors, that_they did not belong to the grand jury inquiring in and for the body of the county of Oakland, If they had not been dismissed for the term, it would have been competent for the comt at any time before the panel had been dismissed, upon their coming into court, to have sworn them, and sent them to their fellows. It has been very usual to do this when delinquent jurors have come in on the same day, after the jury have been sworn and charged. If it may be done that day, it may be done at any time during the session of the grand jury. It is a matter entirely in the discretion of the coiut; and .circumstances, as the absence of a part of those empanneled, from siclpr ness, or other cause, might make its exercise very proper. There are in the statute no words of limitation, confining the jurors to be reassembled, to those only who had at first been sworn, and performed the duties of grand jurors, by inquiring in and for the body of the county, into the crimes and misdemeanors committed therein.

Barber, who had been re-summoned with the others, did not appear until after the jury had been sworn and received the charge of the .court; and, as is very frequently the case, there being enough without him, he was not sworn. This we consider to be a matter of discretion with the court, and, as we have already said, a usual practice, not only in this country, but in England. 1 Chitty’s Crim. L. 313.

After the petit jury had received the charge of the court and retired to consider of their verdict, they sent for and were permitted by the court, against the wishes of the defendant, to have in their room a copy of the Revised Statutes. For this reason a new trial was moved for, and by the court denied; and this matter coming up, upon a bill of exceptions, is assigned for error.

In the sending for and receiving of this book, the jury were guilty of no misbehavior; and it is .difficult to conceive how any use which they may have made of it could have injured the defendant. In the application of the law as given in charge to them by the court, the statute book, defining as it does the offence, and declaring it murder in the first or second degree, according to the mode and the circumstances of its perpetration, may'have been to them a just and useful guide; the more so as it was their duty to ascertain, in their verdict, whether it be murder of the first or second degree.

If the jury, without the knowledge or ajrprobation of the court, had procured this book, it would not, we think, be a sufficient cause for setting aside the verdict. Juries may, without the assent of the parties, take with them into their room, papers under seal which have been read in evidence; other papers and books which have been given in evidence, they have no right to take; but if they do take them, though it may be misbehaviour in them, it will not set aside the verdict. Co. Litt. 22Í b.

In the case of the Commonwealth v. Jenkins, Thatcher’s Crim. Cas. 108, it was held, that where the officer in attendance delivered to the jury at their request, without application to the court, after they had retired to consult upon a verdict, a volume of the laws of the state, containing the act upon which the indictment was founded, which act had been commented upon by the counsel and court, that this was not a sufficient ground for a new trial.

In another case, 7 Mo. R. 607, it is said that a jury ought not to be permitted to carry out law books with them, unless for the sake of referring to the law as stated in a paragraph marked out for them. Hardy v. State. While we think there was no error in this case, in the permission given by the court, that the jury might have a copy of the Revised Statutes, we are fully satisfied that the view taken of this matter by Lord Tenterden, 3 Carr. and Payne 310, is the correct one, and ought to be followed. After his lordship had summed up the case, and the jury had retired, they sent a message to his lordship, desiring to have Selwyn’s Law of Nisi Prius sent them. His lordship, although both parties, consented, said, the regular way is for the jury to come into court and receive the law from the court, and for the sake of precedent that course should be adopted now.

The judgment of the circuit court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Wing, J.

license: Public Domain

text:
    Porter v. Kimball.
    Tlie general issue cannot be pleaded in a cause in the county court, or in tbe cu> cuit court, under the act to regulate and define the jurisdiction of the circuit and county courts, Sess. L. 1848, p. 286. The pleadings in both courts must conform to the provisions of ch. 92, R. S.
    A plea within the meaning of sec. 17, ch. 92, R. S., is simply a statement of the grounds of defence, without regard to the form of stating them; and yet they should be stated with such certainty as to enable the opposite party to understand definitely upon what the defendant relies as his defence.
    Case reserved from Lenawee Circuit Court.
    Tiffany, for plaintiff.

      Beaman and Oooley, for defendant.
   By the court,

Wing, J.

This is a motion made to set aside a default entered in the circuit court for the county of Lenawee, and the questions arising upon the motion were reserved by the eireuit judge for the opinion of this court thereon.

The motion is made under the provisions of rule 6 of additional rules for the circuit courts, adopted May 4, 1848. The rule is as follows: “ The defendant’s default being duly entered, the plaintiff shall not be bound afterwards to accept a plea unless the defendant, as soon as he shall know that a default has been entered* shall plead issuably: which plea shall be hi the manner, and verified by affidavit* according to the provisions of chapter 92 of the Bevised Statutes of 1846;”

This rule appeared to be necessary, and was adopted in reference to the fifth section of an act to regulate and define the jurisdiction of the circuit and county courts, approved April 3, 1848* Sess; L¡ 1848, p. 263. By this law it was enacted, in substance, thait where in civil actions the plaintiff’s demand was such that he could do so, he might, at his election* commence suit in the circuit court: but if he did so, his suit should be commenced and prosecuted in the same manner, and all the proceedings should be the same, as if it had been commenced and prosecuted in the county court* so far as the same shall be .practicable.

The validity of the rule is not called in qüestiom It will be conceded that it is practicable for a defendant to plead, so far as concerns the form, in the manner designated by the seventeenth section of chapter 92. In this case, defendant made defatilt in pleading. The statute did not provide for such a Case, and the rule was intended to provide for the difficulty, and the question raised, is, whether the plea, in form and substance, conforms to the requirements of the rtile and the law.- The Bevised Statutes of 1846, chapter 99, section 22, enacted that no' special plea in bar should be pleaded in any civil action hereafter to be commenced; but all matters of defence to any such action, mig'ht be given in evidence under the general issue; The defendant appears to have intended to frame his plea and notice under this provision of the Bevised Statutes, since he has plead the general issue and set out his grounds of defence in a notice, to which is added an affidavit. In this 1 think he has misapprehended the effect of the law of 1848, by which the section last cited is in effect modified* if not repealed.- The defendant appears to have considered the rule as pointing to an issuable pi ea as understood at the common law; and, as by section 22 of chapter 99, he was prohibited from pleading specially, and was only permitted to plead the general issue with notice, he adopted that form of pleading to satisfy the rule. But looking at the act of 1848, and considering its object and intent, I am satisfied the plea should have been made in conformity to the seventeenth section of chapter 92. It would then have been an issuable plea, as distinguished frota the pleas authorized to be plead by section 19 of the same chapter, which, under the rute could not have been plead after -default. If I am correct in this view, the general issue cannot be plead in a cause in the county court or in the circuit court, since the passage of the law of 1848; but the pleadings must conform to the provisions of chapter 92.

A plea, within the meaning of section lY, can have but little of the form of a plea at common law. The statute substantially prohibits the use of such a form, because a plea could not formerly be made in the form of an affidavit. The word plea, as here used, has not a technical signification — it means simply the statement of the grounds of defence, without any regard to the form of stating them, and yet, as to the matters of substance set forth in the plea, they should be stated with such certainty as to enable the opposite party to understand definitely upon what the defendant relies as a defence to the action.

The defendant is to be sworn to state his defence truly, and then to state the nature and ground of his defence, and submit to- an examination touching the same. And if, under the proviso* to this section, his-plea is put in by an attorney, the plea or affidavit must specifically set forth the nature and grounds of his defence, and the other matters referred to in the section.

The pica, in the present case, is put in by the attorneys of the defendant. It is not in the usual form of an affidavit, but this, perhaps, would not be objectionable, if it contained a specific statement of the facts. It does not purport to state facts, to the truth of which the attorney swears either directly or indirectly. It commences with a statement that the defendant will give in evidence, and insist upon as a defence, that the note mentioned and set forth in the plaintiff’s declaration is not owned or lawfully held by the said plaintiff, but that the same is now owned by the firm of Porter & Ballard, mentioned in said declaration, or by Giles W. Porter, or by some other person than the said plaintiff as assignee of. said firm. Here is no fact asserted: the defendant says he will give in evidence, &c. — the whole statement in the notice is prefaced by this statement. He will prove it if he can — but he does not assert that it is so. It is not a simple direct relation of facts— it is very uncertain.

The notice applies to the time of filing the notice, and not to the time when the suit was commenced. It does not admit or deny the endorsement of the note; but says if it was endorsed, it was endorsed after it became due. It states that there has been a partial failure of consideration, occasioned in part by one thing, and in part by another; but not how much by each or either. After making other general statements, it states the amount of the partial failure was about seventy dollars, and he puts the plaintiff upon proof of the endorsement of the note. The notice is concluded as follows: “all of which facts stated in the notice are true, as the said defendant believes.” Consistent with this affidavit, there might not be a single fact stated in the notice. Many of the matters are stated alternatively, and these statements are inconsistent with each other. If all are facts, it is manifest they cannot be true: and if all are not true, which are facts ? I think the notice cannot be sustained as a plea, within the meaning of section 17, chapter 92, or rule 6, above cited, and, therefore, that the motion should not prevail.

let it be certified to the circuit court for ‘the county of lenawee, that it is the opinion of this court that the motion should be denied.

Certified accordingly.


author: Green, J.

text:
    Sutton v. Facey.
    What constituted a physician, within the meaning of the Exemption Act, (Ses. L. 1842, p. 70), and the act (Ses. L. 1844, p. 78) repealing oh. 2, tit. 8, part 1, E. S. 1838 1 Query:

    Proof of plaintiff’s having practiced as a physician is prima faeie evidence of his professional character; and after such a prima faeie case has been made out, a witness may be asked, “ Was ths plaintiff skilled in healing!” for the purpose of showing the plaintiff had no knowledge of the healing a.xt.
    Where the court charged the jury that the question, whether plaintiff was a practicing physician, had reference to the business he was engaged in, rather than to the skill with which he exercised that business: Held, that the charge waa. erroneous, as it was calculated .to, and probably did, mislead the jury. Had the court stated to the jury, it had reference to the business in which tho plaintiff was engaged, rather than to the degree of skill with which he exercised it, the jury would have understood that some degree of skill was necessary.
    Error to Jackson Circuit Court. Replevin by Facey, for tire unlawful detention, by Sutton, of a horse belonging- to Facey. Sutton, who was a constable, justified the detention of the horse under two executions against Facey. On the trial in the circuit court, Facey insisted he was a practicing physician at the time the horse was taken, and that the same was exempted from levy and sale on the executions by the exemption act, Ses. L. 1842, p. 7 0. It did not appear he had any other horse; and the question was, whether he was a practicing physi-. cian within the meaning of the aforesaid act. The facts, with the charge of the court to the jury, and the rejection of certain testimony on the trial in the circuit court, are stated in the opinion of the court

      Frink, for plaintiff, in error.
    Z>. Johnson, for defendant, in error.
   By the court,

Green, J.

Facey, the plaintiff below, rested his claim to a recovery upon the exemption act, Ses. L. 1842, "p. Y0, the first section of which provides, that “ to every practicing physician, one horse, bridle, saddle, surgical instruments and medicines, not exceeding h? value one hundred dollars,” shall be exempted from execution or sale for any' debt, damages, fine or amercement whatever; and the principal question presented, depends upon the construction to be given to the term practicing physician, as used in that act

When this law was enacted, chapter 2, title 8, part 1, of the Revised Statutes of 1838, entitled “ Of medical societies, and regulations concerning the practice of physio and surgery,” was in force; the 8th section of which provided, that no person should commence the practice of physic or surgery within this state until he should have passed an examination, and received a diploma from one of the societies mentioned therein; and rendered any person who should practice physic or surgery within this state without first having obtained such license, incapable of suing for or collecting any charges incurred by reason of having so practiced. It is very clear that, inasmuch as no person could legally commence the practice of physio or surgery without a diploma for that purpose, while that chapter was in force, no one could be recognized as a practicing physician who should commence the practice of physic without such a diploma. There is no difficulty, therefore, in determining what class of individuals was entitled to the benefit of the exemption, when the act of 1842 became a law. An individual might then have a diploma from the state medical society or a county medical society, authorizing- him to practice physic, and yet not practice, and therefore not be entitled to the benefit of the exemption. But he would in law be a physician, and, whenever he entered upon the practice of his profession, would have a right to claim the benefit of the exemption law. But no person, however learned and slrilful he might be, could, by entering upon and continuing the practice of physic, become, in contemplation of law, a physician, so long- as the prohibitory .statute existed; and therefore could not, as such, ever entitle himself to hold property exempt from execution. Any other construction of the language of the exemption law before referred to would involve the gross absurdity of conferring a right upon an individual, based upon the violation of an express prohibitory statute.

It is claimed, on the part of the plaintiff below, that by the subsequent modification and final repeal of the law regulating the practice of physic and surgery, a more enlarged application was given to the provision of the exemption act above quoted, and that at the time when the cause of action in this case is claimed to have accrued, every person who was engaged in the practice of physic, as an occupation or business, thereby became a physician, and entitled to hold a horse, &c., exempt from sale on execution.

The first section of the act numbered 38, of the Session Laws of 1843, repealed so much of sec. 8, ch. 2, title 8, part 1, of the R. S. of 1838, as rendered persons practicing physic or surgery without a license incapable of suing for or collecting charges incurred by reason of having so practiced. Section two of that act further provides, that if any person who professes to be a physician or surgeon, or shall hold himself out to the public or any individual employing him, to be such, shall be guilty of any neglect or malpractice* an action on the case may be maintained against such person so professing, and the rules of the common law applicable to such actions against licensed physicians and surgeons shall be applicable to such actions on the case.” This section was not repealed until the Revised Statutes of 1846 took effect, which was on the first day of March, 1847.

By the act, Ses. L. 1844, p. 73, it was provided, that in any county of this state where a medical society, composed of a majority of the physicians and surgeons of the county, should be thereafter organized on the principles of voluntary association, &o., the keeper of the prison of such county might deliver to the agent of such society the bodies of all criminals who should be executed within such county for a capital offence, &c.; and chap. 2, title 8, part 1, of the R. S. of 1838, was thereby repealed.

The last mentioned act continued in force until the R. S. of 1846 took effect.

It will thus be observed, that, from the time the exemption law was enacted, until after the trial of this cause in the circuit court, a certain class of individuals were recognized by our statutes as physicians, and that a distinction has at the same time been recognized between those who were such, in contemplation of law, aud those who might profess to be physicians, and hold themselves out to the public, or persons employing them, to be such.

The horse which the plaintiff below sought to recover in this action was seized by virtue of an exeeuticn against him, in January, 1846, and in November of the same year-, this cause was tried in the circuit comb. What, at that time, constituted a “ j)hysician,” within the meaning of the exemption law, and the law of 1844, before referred to ?

It is evident that the exemption law originally had reference, so far as it related to physicians, only to a class of persons having certain evidence of their qualifications to practice the healing art, which evidence presupposed a competent knowledge of the human system, the diseases to which it is subject, and the proper remedies for their cure or alleviation, to enable its possessor to exercise his profession successfully. By the term physicians, in the law of 1844, the legislature seems to have intended those who were such under the law which that act repealed. It provides no new test by which to determine what shall constitute a person a physician. It recognizes them as a known class or description of persons, by a term which had for a long time previous, and then had, a well defined legal meaning in our statutes. Under those laws, the examination, by a body of men supposed to be competent to judge of the qualifications of the applicant, and the diploma which evinced their judgment in favor of his capacity to practice the healing art, were deemed a salutary and necessary safeguard to the public against imposition and fraud, and a necessary protection of the lives of the citizens from the assaults of presumptuous ignorance and reckless cupidity.

But, at the time when the horse in question was taken by the defendant below, there were no medical societies or other bodies or persons in this state who had power to grant a diploma, evincing the possession, by any individual, of the proper qualifications to practice as a physician; and does it therefore follow, that no one could become a physician in this state after the repeal of the law regulating the practice of physic and surgery ? Perhaps when we consider the object which the legislature appeared to have in view, viz: to place all those who were practicing according to different theories, and under divers systems and modes of treatment, upon an equal footing, a somewhat broader construction of the statutes relating to physicians, and still remaining in force, may be fairly warranted. If so, the term physician may embrace those who have received the degree of doctor of physic from some institution legally authorized to confer it. It may also include those who can show that they are such within the general and common meaning of the term. Mr. Webster, in his dictionary, defines the word “ physician” to be “ a person skilled in the art of healing; one whose profession is to prescribe remedies for diseases.” This definition implies the possession of all the qualifications which were evidenced by the diploma under the laws as :they existed in 1842, when the exemption act was passed; but whether the person be shilled in the cure of diseases by means of allopathic, homoeopathic, hydropathic or botanic treatment, is not material..; Skill in any of the modes mentioned, includes a competent knowledge of the humarfsystem, of the diseases to which it is subject, the symptoms by which they are detected and distinguished, and of the remediesjadapted to their cure.

As to the evidence necessary to establish the character of a physician, it has been holden in an action on the case for slandering a person in his profession, where the (plaintiff' alleged generally that he was a physician, that parol proof of his having practiced as such was prima facie sufficient evidence of professional character, but subject to be overthrown by any competent evidence to the contrary, 2 Starkie’s Ev. 218 and note x; and, although it has been held otherwise, the weight of authority, and the analogies of the law of evidence, seem to bo in favor of this rule. But this rule assumes that practicing as such does not con-’’ stitute the person a physician, but only creates a presumption of fact that he is so, until such presumption is rebutted,"and indicates the same distinction between those who are physicians, and those who profess and “ hold themselves out ” to be such without possessing the requisite qualifications, which is recognized by the law of 1843.

In the case before us, the testimony on the part oflthe plaintiff in” the court below, may probably have been sufficient, prima facie, to show that he was a physician. It showed that he had kept an office, held himself out as a physician, and been called, as such, tr risit the sick; and the professions of skill on his part, as exhibited in his advertisements, were certainly most ample, and if well supported in his practice, should have secured him a most enviable reputation in his profession, and the substantial reward which great merit so richly deserves, but frequently fails to obtain.

Assuming that the meaning of the term physician, as used in the exemption act, has been enlarged by subsequent legislation, as above suggested, (but which may be considered at least doubtful,) and that the plaintiff below brought himself prima facie within the meaning of the statute, yet it was still competent for the defendant below to prove, if he Could, that'Facey was not a physician. For tins purpose, Sutton introduced proof that Facey admitted to Baker and others that he was not a physician, and that he said to the witness McClure that he never road a medical work. Another witness testified that Facey did not doctor his own children; and other testimony was given tending to show that he knew little or nothing of the science of medicine or the art of healing. The witness McClure, after stating that he was a practicing physician, and had been for thirty years, &c-, was asked the question, “ was the plaintiff skilled in healing ?” which question was objected to by the counsel for the plaintiff, and the court sustained the objection, to which decision exception was taken. This ruling of the court is one of the grounds of error assigned in this court. The particular extent of the plaintiff’s professional knowledge, would not have been the proper subject of inquiry: for the law furnished no standard by which it could be exactly measured. But this question did not aim at determining the degree of skill he might have possessed, but rather seems to have been intended to show that he had no knowledge of the healing art. This question, therefore, seems to have been a proper one for the purpose of eliciting evidence that Facey was not a physician.

The court charged the jury that the question, whether the pdaintiff was a practicing physician, had reference to the business he was engaged in, rather than to the skill with which he exercised that business. This portion of the charge was calculated to, and probably did, mislead the jury. Had the court said it had reference to the business in which he was engaged, rather than to the degree of skill with which he exercised it, the jury would have understood that some degree of skill was necessary; but the language used by the court below implies that if Facey was occupied in the business of practicing physic, he was therefore a physician, within the meaning of the exemption law, whether he had any knowledge of diseases and remedies or not. In this portion of the charge I think the court below erred.

We are not disposed to go any further in this case than is indispensably necessary to its decision: the questions presented being new, the argument in this court having been rather meagre, and a brief having been furnished on one side only, and no references having been made by counsel to adjudged cases calculated to throw much light upon our path.

We therefore refrain from expressing any decisive opinion as to what constituted a physician, within the meaning of the exemption act of 1842, at the time when the property in controversy in this cause was tsken by the defendant below.

Being satisfied, however, that, giving the exemption act the most enlarged construction that it can receive, the court below erred in the matters above noticed, the judgment of the circuit court must be reversed, and a new trial allowed, the costs to abide the event.

Judgment revere jc\


author: Mund-y, J.

text:
    Kinnie v. Owen et al.
    The general issue in all civil actions under R. S. ch. 99, see. 22, traverses every material averment in the plaintiff’s declaration, which must he proved, whatever the nature or foi m of action may be.
    Case reserved from Wayne Circuit Court. The vessel Manhattan was attached for carelessly running down the Saltillo, with a cargo of wheat on board, under ch. 122, R. S., at the instance of Perry, who was a part owner of the Saltillo; and Kinnie, who owned the wheat, filed his claim under the attachment. A- bond was g'iven under the thirteenth section of the act, and the vessel was released. The present action was. on this bond; and to the declaration, assigning breaches of the condition of the bond, defendants plead the general issue, by demanding a trial of the matters set forth in the plaintiff’s declaration — the form of the general issue in all civil cases prescribed by R. S., chapter 99, section 22. No notice accompanied the plea. • When the cause was called on for trial, the plaintiff’s counsel stated that, under the plea, they deemed it unnecessary to prove any thing more than the execution of the bond; and that it would be incompetent for defendants to give any other evidence than such as was admissible under the plea of non est factum. Thereupon, to save time, it was agreed plaintiff should proceed with his case; that defendants should introduce their entire defence, subject to the aforesaid objection;'and that if, upon the whole case, the court should deem plaintiff entitled to recover, such should ,be the judgment of the court; if not, then the court should pass on the- objection, and the pilaintiff have the benefit of it. The trial proceeded, and a verdict having been rendered for defendants, the court overruled the plaintiff’s objection, and held the defendants’ plea sufficient to admit a defence on the merits. Plaintiff excepted, and the question was reserved for the opinion of this court.

      Fraser, Van Bylce and Emmons, for plaintiff,

      Joy and Bates, for defendants.
   By the court,

Mund-y, J.

The solution of the questions presented in 'this case, depends, we think, upon a just construction of the Revised Statutes of 1846, and especially of those provisions which abolish in all' civil actions special pleading, permitting all matters of defence to be given in evidence under the general issue, and providing for a notice under such issue of those matters.which, by the old rules of pleading, were to be specially pleaded, or special notice thereof given under the general issue. The object of the legislature unquestionably was the saving to suitors the vexation and expense too frequently the result of the subtleties of special pleading.

The legislature provided, by section, 22, chapter && of the late Revision, that “ no special plea in bar shall be pleaded in any civil action hereafter to be commenced; but all matters of defence in any such action may be given in evidence under the general issue;” and by section 23, in all civil actions hereafter to be commenced, the general issue shall consist of a demand by the defendant, of a trial of the matters set forth in the plaintiff’s, declaration.”

It is to be remarked here that the legislature not only provided, that-in all civil cases the issue between the parties shall he the general issue} but that they determined the form, the substance and the effect of that plea. It shall consist of a demand by the defendant of a trial of the matters set forth in the plaintiff’s declaration. That is, by this plea, the court is called upon to pass upon the plaintiff’s cause of action; to hear, try and determine the matters set forth in his declaration. What matters ? Looking at the case now before us, shall we- say, as is claimed by the counsel for the plaintiff, the matter only whether the bond was made by the defendants: or shall we say, all those matters averred by him in his declaration, as constituting his cause of action. It seems to us, that from the language of the legislature, there can be no doubt upon this subject.

This is to be the plea in all cases, irrespective of the cause or the form of action: whether the action be founded upon contract, or upon tort— whether in foim it be in debt, or in case, the cause of action, as alleged in the declaration, is by this plea put in issue.-

Under this rule of pleading, the .only question, so far as matters of defence are concerned, which can in any case arise, is, whether they are such as the practice of our courts requires to be specially jileaded.

What the matters of defence given in evidence under the general issue in this case, were, does not appear. It does not appeal' that anything was given in evidence, supposing- the plea to put in issue all of the material averments in the'declaration, which, by the former practice» should have been specially pleaded or noticed under the general issue; and looting at the cause of action, we cannot conceive the necessity for, nor the existence of any such matter of defence, unless it might be the statute of limitations.

Aside from the bond — and this is merely incidental, made so by the statute — the matters in controversy are precisely the same as if the action had been in case against the owner of the boat. The decision must have turned upon the question of negligence; this the plaintiff must have established, to have entitled himself to a verdict; and, surely, if the action had been case, the defendants might, under the general issue, have given in evidence all the circumstances attendant upon the collision of the two boats.

Certified accordingly.


author: Whipple, Ch. J.

text:
    Spier v. M’Queen.
    S. Bued M. in a justice’s court, and employed W., an attorney at law, to appear and prosecute the suit for him on the return day. W. was prevented from attending to the suit on that day, and requested S. to appear, who appeared accordingly. M. objected to S.’s appearance, and required him to prove his authority, and S. not being able to prove a formal authority, the action failed. Keld, these facts did not make out a case, within sec. 11 of ch. 2, tit. 0, part 3, R. S. 1833 (of the limitation of personal actions), allowing a new action to be brought within one year thereafter.
    Case reserved from Eaton Circuit Court. Assumpsit. Plea, statute of limitations. Replication, a previous suit duly commenced before a justice of the peace, within six years; and that, on the return day of the summons therein, one Wilkinson, an attorney at law, whom the plaintiff had previously employed to appear and prosecute the suit for him, was necessarily absent from Eaton Rapids, the placé of holding the court, and that Wilkinson desired one Shaw to appear and prosecute the action on the return day : that Shaw appeared; that defendant objected to his appearance, and required him to prove his authority; and that Shaw not being able to prove a formal authority, the action was avoided and defeated for the want of form aforesaid : that the cause of action in the former and present suits was identical; that it accrued within six years next before the commencement of the first suit; and that the present suit was commenced within one year next after the determination of the first suit. Defendant demurred, and plaintiff joined in the demurrer,

      Kimball and Sumner, for plaintiff,

      'Chaifield, for defendant.
   By the court,

Whipple, Ch. J.

The solution of the question raised by the demurrer must depend upon the construction of sec. 11, chap. 2, tit. 6, part 3 of the revision of 1838. That section provides, “ that if in any action, duly commenced within the time limited in this chapter and allowed therefor, the writ shall fail of a sufficient service or return, by any unavoidable accident, or by any neglect or default of the officer to whom it is committed; or if the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form; or, if after a verdict for .the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on writ of error, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or the determination of the original suit; or, after the reversal of the judgment therein.”

I am unable to perceive how the plaintiff can shelter himself under the provisions of this section. The authority of Shaw to appear as attorney was requested by the defendant; and the statute, upon such request being made, required, in express terms, that his authority should be proved, either by his own or other competent testimony. This proof not being exhibited, the action was defeated for want of ajjpearance at the return day of the process.

The failure of any action, for such a cause, does not fall within the saving clauses of the 11th section. The demand made by the defendant was not mere “ matter of form” It was a right conferred by statute; and if the plaintiff failed to'furnish liis agent with the necessary authority, or if the agent, having the authority, neglected to make the necessary proof, there was, in a legal sense, no appearance, and judgment of nonsuit must have been the consequence.

We should have been glad to have relieved the plaintiff from the difficulties into which he was drawn by his own inadvertence or by the want of skill on the part of his agent; but it would be extending the statute to a case not within its terms, if we allowed the replication to stand as a sufficient answer to the plea.

Let it be certified to the circuit court of the county of Eaton, as the opinion of this court, that the demurrer to the replication should be .sustained.

Certified accordingly,


text:
    Wales v. Jones.
    ' Plaintiff commenced two suits against defendant on the same day, for the same cause of action — one hy declaration and the other by attachment. The court presumed, nothing appearing on the record to the contrary, that the suit by declaration was first commenced, and held that a plea of that suit in abatement of the attachment suit was bad, because the plea did not state that it was still pending.
    Where a plea in abatement averred another suit was commenced at the same time, upon and for the not performing the very same identical promises and undertakings, without adding, m the saM declaration, m tlvispresent suit mentioned, or other equivalent words, it was held bad on that account.
    Case reserved, from Wayne Circuit Court. Suit by attachment. Plea in abatement, of the commencement of another suit at the same time and for the same cause of action. Demurrer and joinder.

      Van Dylce and Emmons, for plaintiff.

      Lothrop and Duffield, for defendant.
   By the court,

Green, J.

Several questions were made on the argument of the demurrer in this cause, and it is insisted that the plea in abatement is had: 1, Because it does not aver that the other suit is still pending at the time of pleading.

The general rule seems to he well settled, according to the English authorities, that when two suits are commenced at the same time, for the same cause of action, they mutually abate each other; and that the writs in both being had, ah initio, no subsequent discontinuance of one will make the other good; and that a former suit for the same cause, pending at the time of purchasing a second writ, may be pleaded in abatement of the second suit, without alleging that the first suit is pending at the time of putting in the plea. The reason assigned is, that “ the law abhors a multiplicity of suits; and therefore, whenever it appears on record that the plaintiff has sued out two writs against the same defendant for the same thing, the second writ shall abate; for if it were allowed that a man should he twice arrested, or twice attached by his goods for the same thing, by the same reason he might suffer in infinitum; and it is not necessary that both should be pending at the time of the defendant’s pleading in abatement; for if there was a writ in being at the time of suing out the second, it is plain the second was vexatious, and ill ab initio.” See 1 Bac. Abr. 13, Dublin ed. of 1786.

In New York it has been holden, that if the former suit be discontinued before receiving the plea in abatement, such plea cannot prevail. 1 John. Cas. 397.

Mr. Gould, in his Treatise on Pfeading, p. 284, says: “ It is immaterial whether' the first suit is pending at the time of defendant’s pleading in abatement of the second. If the first was pending when the second was commencedthe latter may be abated, as being vexatious ab initio. And on principle, it seems that this plea can never prevail, ex-” cept in cases where the latter suit is vexatious. Hence, when it appears that the first action must have been ineffectual, the courts of Connecticut have often determined that its pendency shall not abate the second, because, in such a case, the latter is not vexatious.”

, This appears to be the sound and reasonable doctrine upon the subject, and will perhaps reconcile the apparent diversity of decisions in the courts of the different states and in England. When a plaintiff at the same time commences two suits in the same form, for the same cause of action, and causes the defendant to be arrested and held to bail in both, or his goods to be attached in both, it is at once apparent that his conduct is vexatious and oppressive, and a palpable abuse of the process of the court, and justice forbids that he should derive any benefit from either of his suits. But where the record shows apparent good faith in the commencement of the second suit, and that the first was discontinued before the defendant is called upon to plead in the second, so that he is not unnecessarily harrassed by the defence of two suits for the same cause at the same time, the second suit cannot be deemed vexatious, and cannot therefore be abated by the pendency of the prior suit when it was commenced. On the contrary, to hold the second suit abateable for that cause, would be to make the law favor, rather than abhor, a multiplicity of suits, inasmuch as it would render another action necessary, when the plaintiff’s claim is a meritorious one.

In the present case, it appears from the record, that on the same day, the plaintiff commenced an action against the defendant by declaration, under the statute; and also sued out an attachment against his goods and chattels; and that the declaration and attachment were both served on the same day. It being deemed impossible, and, indeed, not being averred, that both suits were actually commenced at precisely the same point of tima, we cannot presume that the attachment suit was actually commenced first, but, nothing appearing in the record to the contrary, we may fairly infer that the suit by declaration was in fact first commenced.

Upon looking into the record, we find an affidavit of the plaintiff, sworn to on the same day, setting forth that the defendant is indebted to him, &c., “ and that said Jones is about to assign or dispose of his property with the intention of defrauding his creditors,” &c., the substance of which affidavit is recited in the writ of attachment.

The question now arises, whether a creditor, after commencing a personal action against his debtor, if he shall discover that such debtor is about to dispose of his property for the purpose of defrauding him of his debt, may lawfully avail himself of the special remedy afforded by the statute in such case, to secure himself against the consequences of the contemplated fraud ? I think he may, and that the pLa not averring the other suit to be still pending, is bad.

2. It is also objected that the plea is bad, because it avers only that the other suit was brought “ upon and for the not performing the very same identical promises and undertakings,” without adding the words, “ in the said declaration in this present suit mentioned,” or other words equivalent thereto, showing what promises and undertakings are referred to.

Pleas in abatement are not to be favored, and certainty to every intent is required. Nothing can be taken by intendment in favor of the pleader; and without intending something which is not expressed in the plea, it is entirely uncertain. It is said, in 3 Chitty’s Pl. 903, note y, that the precedents of pleas in abatement of another action depending, vary in point of form; sometimes they set forth the declaration in the first action — but others, as in the precedent there found, are more concise; and various precedents in each form are referred to. The precedent in Chitty, and those referred to of that description, contain the words, in the said declaration in this present suit mentioned; and so, I believe, are all the precedents in which the declaration in the first suit is not set forth in the plea.

Several other objections were raised upon the argument, which it is not necessary to notice.

It must be certified to the circuit court for the county of Wayne, as the opinion of this court, that the plaintiff is entitled to judgment upon the demurrer, and that the defendant answer over.

Certified accordingly.


author: Miles, J.

text:
    Miller v. Chaffee.
    Disputed, questions of fact cannot be reviewed, <?n a writ of error brought on a judgment of the circuit court affirming, on certiorari, a judgment of the county court.
    Error to Wayne Circuit Court, on a judgment of that court affirming, on certiorari, a judgment of the county court.

      Bishop, for plaintiff in error.

      Bylce and Emmons, for defendant in error.
   By the court,

Miles, J.

The question is, whether, upon this writ of error, we have any thing to do with the disputed questions of fact, determined by the county court.

A writ of error is said to lie only upon matters of law arising upon the face of the proceedings. 2 Chit. Black. 406.

By the statute, a review of the proceedings and judgment of the county court may be had upon certiorari { and the circuit is in such case-'required to give judgment in the cause as the right of the matter shall appear, without regarding technical omissions,. &c., which did not affect the merits.

It is not our intention, inasmuch as it is not necessary in this case, to define the extent; of the jurisdiction of the circuit court under the statute ; but we refer to it for the purpose of introducing a decision of the supreme court of the state of New York, showing the views there entertained under a statute with a similar provision. By that statute, a court of common pleas vras authorized to review upon certiorari the judgments of a justice of the peace, and to decide according to the justice of the case, disregarding matters of form which did not affeot the merits.

In the case of Whitney v. Sutton, 10 Wendell 412, the common pleas having reversed the judgment of the justice recovered by the plaintiff below, he sued out a writ of error, returnable in the supreme court, which brought up the record of the common pleas containing the justice’s return. From that return it appeared that the questions raised before the justice were both of law and fact.

The court there say, Savage, Ch. J., with the questions of fact which were disputed, we have nothing to do: upon a writ of error we can correct errors of law only.” And, further, whether the decision was according to the right of the case, was a proper question to be reviewed by the common pleas, and is not a proper question for review by this court.”

As we have before said, we do not now pretend to determine the proper mode of reviewing questions of fact by the circuit court, but solely to declare that this statute has not conferred upon this court any additional .powers, or required from it the performance of any other duties than before existed at common law.

. There being, then, no error found in the jitdgment of the circuit court, the same must be affirmed.

Judgment affirmed.


text:
    Austin v. Strong.
    Where an affidavit for an appeal from the judgment of a justice, under sec. 2 of the act, Ses. L. 1845, p. 98, was made by an attorney of the party and stated, that plaintiff recovered five dollars more than was justly and honestly due him, as deponent believed, from the facts and evidence in the cause, which were folly communicated to him, itawas held sufficient.
    The recognizance for an appeal under the act, Sea. L. 1845, p. 98, must be taken ■ before the justice by whom the cause was tried.
    Case submitted, by agreement of parties.

      Van JDyJce and Emmons,' for plaintiff.

      Lothrop and Buffidd, for defendant.
   By the court,

Whipple, Ch. J.

This cause was originally commenced. before a justice of the peace, and was by appeal taken to the circuit court of the county of Wayne. A motion was made in that court to dismiss the appeal, on the ground of the insufficiency of the affidavit and recognizance required by the statute. The circuit court deeming the affidavit insufficient, dismissed the appeal.

The parties, by their counsel, having waived the issuing of a wnt of error, have agreed to submit the record to this court, in order that the decision of the court below might be reviewed.

The second section of the act of 1845, amendatory of the justices’ act of 1841, provides, that “ no party against whom a judgment has been rendered by a justice of the peace, upon any claim arising upon contract, express or implied, shall appeal therefrom to the circuit court, unless such party, his agent or attorney, shall within five days after the rendition of such judgment, make and present to such justice an affidavit, alleging therein that the party recovering such judgment had recovered therein at least five dollars more than was justly and honestly due such party.”

It is objected to the affidavit, that it does not appear that the attorney was ever fully advised by the defendant of the merits of the case; or that all the facts and evidence were elicited on the trial before the justice, or that tbe attorney was present at tbe trial and heard tbe evidence.

I tbink it could never bave been intended by tbe legislature, that when tbe affidavit was made by an agent or attorney, that be should swear positively that tbe prevailing party recovered five dollars moro than was honestly and justly due him. This could not, in tbe nature of things, be done, except in cases where tbe agent or attorney bad a personal knowledge of the facts. Generally, however, tbe attorney does not possess this personal knowledge, but derives the facts from bis client, upon whom be must necessarily rely. The affidavit in this case, after stating that tbe plaintiff recovered five dollars more than was justly and honestly due, concludes as follows: “ As deponent believes, from tbe facts and eyicLence in tbe cause, which are fully communicated to him,”

Tbe qualifying words, “ as deponent believes,” are unobjectionable for tbe reasons already given. Had tbe affidavit concluded with these words, no question cojild have beep raised respecting its sufficiency: it would have been a substantial compliance with the statute. But this belief is said to be founded on insufficient grounds, It is true, that tbe attorney does not, in words, swear that the facts were communicated to him by bis client, or that he was present at tbe trial before tbe justice, and beard the evidence. But is not this fairly implied ?

The facts in the cause, and tbe evidence in tbe cause, are stated in positive terms to bave been communicated to the attorney. From what source and in what manner did be derive a knowledge of those facts, and of tbe evidence in tbe cause? We must necessarily consult our experience in determining this question. With respect to the facts, as I bave already said, they are usually derived from the client. But another and a more satisfactory mode of ascertaining tbe,m, is, from tbe evidence given on tbe trial of tbe .cause, when the facts ,are communicated under tbe sanction of an oath. Although it does not affirmatively appear in tbe affidavit that tbe attorney was present at the trial, yet I tbink it is fair to infer that such was tbe fact — indeed, the inference is supported by tbe return of tbe justice, which shows that tbe defendant did appear, by bis attorney, Mr. Lotbrop. But I am inclined to think that it is not necessary to state bow tbe facts were made known to tbe attorney: it is sufficient if he swears that the facts have been communicated to him; if it should afterwards appear that they had not been communicated to him, he would render himself liable in a criminal prosecution.

If, as contended by the plaintiff, it is a fair construction of the affidavit to say, that the facts .were only made known to the attorney through the medium of the evidence rendered on the trial before the justice, I still think the attorney might well act upon the facts thus disclosed in forming an opinion as to whether or not the plaintiff had recovered more than was justly and honestly due to him. It may be true, that all the facts might not have been elicited on the trial, but the fair presumption is that the plaintiff adduced all the proof which he could command in support of his right to recover. However this may be, the attorney has sworn that, according to his belief, the plaintiff recovered five dollars more than was honestly and justly due to him, and that this belief was founded on the facts and evidence in the cause, which were fully communicated to him.

Upon the other question raised by counsel, I am of opinion, that, under the act of 1845, the recognizance can only be taken before the justice by whom the cause is tried. This the statute clearly contemplates. Section 4 provides, that the party appealing shall, at the time he enters into a recognizance, “ pay to such justice the costs of the suit, and one dollar for making and filing his return.” How can the appellant pay the costs &c. “ at the time of entering into the recognisance,” unless it be entered into before the justice by whom the cause was tried ? Rut the fifth section is more decisive of the question: it provides, that no justice of the peace shall receive any recognizance on appeal as hereinbefore provided, unless the person entering into the same as surety, justifies his responsibility on oath, and answers any question touching his pecuniary responsibility, which such justice may deem proper to put.” The justice who receives the recognizance is the one by whom the cause was tried; and the act expressly directs that he shall not receive it, unless the surety justifies, and answers any question touching his pecuniary responsibility, which such justice may deem proper to put.

Whatever may have been the rule previous to the act of 1845, it seems quite clear that that act cannot be carried into effect, unless the justice who tries the cause also talces the recognizance.

We think, therefore, that while the affidavit was sufficient, that the recognizance should have been taken by the justice who tried the cause.


author: Geeen, J.

text:
    May v. Tillman.
    M., in 1S15, conveyed certain-premises by warranty deed to R., wbo afterwards died, and E. R., Ms widow, applied to the governor and judges of the territory of Michigan, as the widow'and legal representative of R., under the act of congress of April 21,1S06, entitled “ An act to provide for the ad justment of titles of lands in the town of Uetroit and territory of Michigan, and for other purposes,” placing her application on the deed from M. to R., and in pursuance of such application the premises were deeded to her. In an action of ejectment brought by the widow of M. for her right of dower in the premises, it was heldE. R. and those claiming under her were estopped, by the deed from M. to R., from denying the seizin of M.
    Case reserved from Wayne Circuit Court. Ejectment for dower. The facts are fully stated in the opinion of the court.

      Davidson, for plaintiff.

      Backus, for defendant.
   By the court,

Geeen, J.

James May, the husband of the plaintiff, for several years prior to the 15th of'November, 1815, held the premises in question, with the exception of a small parcel thereof, under deeds of conveyance in fee from several individuals; and on the last mentioned clay he conveyed the same to Duncan Reid, by a warranty deed indented. Reed subsequently died; and Mrs. Eleanor Reid, bis widow, (now Mis. Cheldon) applied to the governor and judges of the late territory of Michigan, as the widow and legal representative of the .said Duncan Reid, under the act of Congress of April 21, 1806, entitled “An act to provide for the adjustment of titles of land in the town of Detroit and territory of Michigan, and for other purposes,” for a deed of the same; which application was made under and by virtue of the said deed from May; and in pursuance of said application the lands were deeded to her. The defendant is in possession, under Mrs. Sheldon.

The first section of the act of Congress referred to provides, “ that the governor and judges of the territory of Michigan shall be, and they or any three of them are, hereby authorized to lay out a town, including the whole of the old town of Detroit, and ten thousand acres adjacent, excepting such parts as the president of the United States shall direct to be reserved for the use of the military department, and shall hear, examine and finally adjust all claims to lots therein, and give deeds for the same.”

It is insisted, on the part of the defendant, that May had only an equitable title to the premises in question, upon which no right of dower could attach. At the common law a widow could not be endowed of an equity of redemption, or other mere equitable interest; and the question in this case is, whether the title of May is to be deemed a legal title. • In the case of May v. Specht et al, decided at the present term of this court, the character of a title acquired by conveyance and possession, while the paramount title was in the government of the United States, was considered. In this case it does not appear whether actual possession accompanied the conveyances to and from May or not, and it does not seem to be material, inasmuch as the law under which the premises were deeded to Mrs. Reid did not make possession a pre-requisite to the giving of the deed. The powers of the governor and judges extended only to the hearing, examining, and finally adjusting all claims to lots in the city of Detroit. Mrs. Reid claimed the lots in question as the widow and legal representativo of Duncan Reid, her late husband, under and by virtue of the deed from May. What estate did she claim by virtue of that deed ? Evidently an estate in fee simple; and this claim was recognized as good, and the lots were deeded to her accordingly.

By what right does she now claim ? Can she now say, that she claims solely under the deed of the governor and judges, or of the mayor, recorder and common council of Detroit, who succeeded to the powers of the governor and judges ? I apprehend not. The deed to her operated merely as an extinguishment of the title of the United States, and was a recognition of the legal title which May claimed and conveyed to Reid, and which she claimed, as the legal representative of her husband. While we might hesitate to apply the strictly technical doctrine of estoppel in a case where it would work gross injustice, as we believe in many cases it has done, yet we feel no hesitation in saying that Duncan Reid, and Mrs. Sheldon, who claims under him, ought to be bound by their solemn admissions, and estopped from denying legal seizin in James May during the coverture. The application of that rule in this case, operates to prevent injustice, and not to produce it; and this class of cases, it seems to me, ought long ago to have been distinguished from that in which the party has been debarred from showing the purchase of an adverse paramount title, set up in opposition to that under which the possession was obtained, and when the party has been obliged to pay the full original value of the estate, in order to avoid an eviction, and save his improvements.

In the case of Blake & Goodhue, v. Tucker, 12 Vermont R. 44, the court sajr, “the whole doctrine of estoppel is based upon this principle: to effect justice and prevent wrong.” In that case, it was holden, that a charter granted by the state of Vermont in 1791, enured for the benefit of the grantee of the person to whom the charter was made, by a deed of quit claim and release, with a covenant of warranty against all claims of all persons claiming the same under the grantor, his heirs or assigns, or the state of Vermont.

In the case of Vanderheyden v. Crandall, 2 Denio 9, the facts were briefly these: On the 1st August, 1792, M. V., having only an equitable interest for life, (the legal estate being vested in trustees,) executed a mortgage with covenant of seizin, to the loan officers of the county of Rensselaer. On the 18th of September, 1799, upon a foreclosure of the mortgage, the loan officers conveyed the premises in fee to P. In 1809, the fee simple passed to M. V., the mortgagor, by descent, on the death of his son, D. M. V., in whom the remainder of the estate had been vested by devise. The question arose between those holding under the title derived from P., the purchaser under the mortgage, and those claiming under the heirs of M. V., who died in 1825. The court say, that the remainder in fee simple, which vested in M. V. on the decease of D. M. V., enured by way of estoppel, to the benefit of the purchaser at the mortgage sale, which was a fee simple absolute; and many authorities are cited, establishing this doctrine. See, also, 2 Hill 303.

In the last cited case, a patent was issued in the name of a deceased soldier, and it was held to confirm the title of the heirs, and of all persons deriving title from or through them as purchasers and devisees. “ But,” says Chief Justice Nelson, “ the purchaser takes the estate cum onore. If the heir, from whom he derives title, has encumbered it by mortgage or otherwise, he takes subject to the charge, the same as in any other case of purchase; and so as to the devisee of the heir, who is put in the same category with the purchaser. If a lease for life or for years has been made by the heir before the conveyance or devise, the purchaser or devisee must take subject to it: and the same rule prevails in respect to an inchoate estate in dower, or any other interest created either by the act of law or of the heir.”

It must be certified to the circuit court for the county of Wayne, as the opinion of this court upon the questions reserved in this case, that the plaintiff is entitled to recover her dower in the premises in question.

Certified accordingly.

         Ante,, p. 1ST.


author: Mijndy, J.

text:
    Stewart v. Hill
    H commenced a suit against S, in the county court, by filing a declaration and making and filing an affidavit, under the first subdivision of sec. 89, R. S. 884, on which a warrant was issued against S, who was arrested and brought into court, when he applied for and obtained an adjournment of the cause, without pleading, on giving bail. On the adjourned day he appeared and moved to set aside the proceedings, for the reasons: 1, That the affidavit was not annexed to and returned with the writ. 2, That the note and mortgage on which the suit was brought, were not filed at the time of filing the declaration. 3d, That a copy of the affidavit wa3 not served on him — which motion was overruled. He then offered to introduce testimony to controvert the facts stated in the affidavit, whioh the court refused to receive. Held, 1, That it was too late after his appearance to the action by giving bail, to object to the regularity of the proceedings or the sufficiency of the affidavit. 2, That on their merits the questions were rightly disposed of by the county court.
    Error to Wayne Circuit Court.

      Gray, for plaintiff, in error.

      Bishop, for defendant, in error.
   By the Court,

Mijndy, J.

This suit was commenced in the county court of Wayne county, on the 25th day of June, 1847, by Hill against Stewart, by filing a declaration and a copy of the note upon which the suit was founded. At the time of filing the declaration, the plaintiff’s attorney made and filed, under the first subdivision of sec. 89 of the R. S., p. 884, an affidavit. On the 26th of June the defendant was brought before the court upon a warrant, issued under the provisions of the aforesaid section; and upon his application, and upon his giving the bail bond required by the statute, the cause was adjourned until the 80th of June. Upon the appearance of the parties on that day, the defendant asked and obtained a continuance on account of the absence of his attorney, until the 5th day of July, 1847; on which day the defendant again by his attorney, and without pleading, obtained a continuance until the next day. On the 6th of July the parties having appeared, the defendant’s attorney moved to quash and set aside the proceedings for the following reasons: 1,, That the affidavit was not annexed to and returned with the writ: 2, That the note and mortgage upon which the suit was brought, were not filed, and did not appear to have been presented to the court at the time of filing the declaration: and 3, That the copy of the affidavit was not served on the defendant at the time of serving the warrant; which motion was overruled. The defendant’s counsel then offered to introduce testimony to controvert the facts contained in the affidavit, which was also overruled. The defendant then put in his plea. No objection was made to the sufficiency of the affidavit.

We think it was too late, after the defendant’s appearance to the- action, which appearance was perfected by his giving the bail bond required by the statute, to object either to the regularity or the sufficiency of the affidavit.

It is well established, that if the defendant appear to the writ, ah though it be absolutely void and he be ignorant of the fact, at the time of the appearance, he will be regarded as regularly in court, and the court will not set the writ aside. 5 Cowen 15; 7 id. 366; 17 John. R. 63. "We know of no practice in support of the defendant’s offer to controvert the facts set forth in the affidavit.

There is no analogy between this proceeding and that under chapter 141, entitled, “ Of the punishment of fraudulent debtors.”

There the object of the proceeding is to ascertain whether or not the defendant be guilty of the fraud charged in the affidavit, for the purpose of punishment if he be guilty; and to that end, an issue is made up and tried in the particular manner in that chapter provided. It is assigned for error also, that the circuit"court erred in affirming the judgment of the county court — the affidavit on which the warrant issued, not showing fraud in the note declared upon; and the same being insufficient, and not setting forth the facts and circumstances showing the alleged fraud.

As the appearance of a defendant, by putting in bail upon a capias ad respondendum, is a waiver of any insufficiency in the affidavit upon which such writ was sued out; so, as we have before intimated, the appearance of the defendant in this case, effected by his entering into the bail bond required by the statute, and his asking and obtaining three adjournments without making any objection to the regularity of the proceedings, was a waiver of any defect in the affidavit, if any such defect exists. The office of this affidavit was simply to authorize the issuing of a warrant The court had jurisdiction of the subject matter; and the appearance of the defendant to the suit gave to it jurisdiction of his person. It was then too late to raise any question upon the sufficiency of the affidavit in the county court: whether these objections were made in the circuit court or not, does not appear from the record. We are satisfied that they could not rightfully have been made there— they are clearly not the subject matter of consideration here.

We might thus dispose of this case without any expression of opinion upon the merits of the questions raised in the county court; but, as they were questions of practice — I speak of the questions referred to in the commencement of this opinion — depending upon the construetion of the statute, we think proper to say that they were rightly disposed of upon their merits in that court.

The judgment of the circuit court must he affirmed, with costs,

Judgment affirmed.


author: Gbeen, J.

text:
    Wall v. Eastman.
    Where the moderator of a school district refused to sign a warrant to a rate hill for teacher’s wages, and a judgment was afterwards recovered hy the teacher againBt the district for the amount due him, which was paid hy a tax on the district, a tax-payer, who was assessed and had paid his part of the tax, cannot sustain an action against the moderator to recover what he had paid.
    Case reserved from Jackson Circuit Court. Eastman sued Wall in a justice’s court, in an action on the case, to recover eight dollars tax, which he as resident of a school district had been compelled to p>ay, by reason of Wall’s refusal, as moderator of the district, to sign a warrant to the rate bill for teacher’s wages. The substance of the declaration, which was demurred to, is stated in the opinion of the court. The justice rendered judgment for Eastman, and Wall appealed to the county court, which also gave judgment against him, when he carried the case to the circuit court hy certiorari,

      Johnson, for plaintiff in error.

      Frink, for defendant in error.
   By the court,

Gbeen, J.

The question reserved in this case, is, whether the declaration contains a cause of action in favor of the plaintiff below, against the defendant below. The declaration sets forth, in substance, that in February, 1841?, Wall, the defendant below, was director of school district No. 'I, in Sandstone, Jackson county; that a teacher was hired, who taught the school in that district, and made out a rate hill for wages due him, and requested Wall to issue his warrant, as director, for the collection thereof, which Wall refused to do; and 'that thereupon the teacher sued the district and recovered a judgment for the wages so due him, the amount of which judgment was levied upon the taxable property within the district, and collected; that the plaintiff below was a resident of the district, and owned taxable property therein, and that by reason of the premises he was compelled to pay, and did pay, a portion of said judgment, to wit: the sum of eight dollars thereof, which sum he claims to recover of the defendant below.

To this declaration the defendant below demurred, and assigned several special causes of demurrer, all of which, however, embrace but one proposition in substance, namely, that the declaration does not contain a cause of action.

The counsel for the plaintiff below referred to 5 John. R. 175; and 15 id. 250; and these are the only adjudged cases cited on either side. The question involved in the case in 5 John. R., referred to, was, whether the imposition of a penalty for official misconduct or neglect of duty, took away the right of action for damages. The law relating to primary schools, and the duties and liabilities of school district officers, in force when the cause of action in this case, if any, arose, was the act of 1843, Sess. L. 1843, p. 88. By the seventy-first section of that act; a penalty of ten dollars was imposed upon every person who, having been elected to the office of moderator, director or assessor of a school district, and having entered upon the duties of his office, should neglect or refuse to perform any duty required of him by virtue of his office. Section provides, that in all Cases not otherwise provided for in that act, in which a duty shall be enjoined upon any person, officer, or hoard of officers, such person, officer or board, as the case may be, shall be liable to any party aggrieved, in the full amount of all damages sustained by the wilful neglect or unfaithful performance of such duty. This last provision introduces no ■ new principle, but is in affirmance of the common law, and seems to have been incorporated into the statute by the legislature, for the purpose of precluding any conclusion to thé contrary, which might otherwise he supposed to arise from other provisions of the statute.

In the case of Bartlett v. Crozier, 15 John. R. 254, Mr. Justice Spencer says: “ It is a general principle of law, that wherever an individual has sustained an injury by the misfeasance or nonfeasance of an officer, who acts, or omits to act, contrary to his duty, the law affords redress by an action on the case, adapted to the injury.” Of the correctness of this doctrine there can be no doubt; and that it is applicable to officers of school districts under the law of 1843, as well as to other officers, scarcely admits of question.

The case of Bartlett v. Crozier, was an action for damages resulting from the omission of the defendant, as overseer of highways, to repair a bridge within his district, by reason of which plaintiff’s mare fell through the same, and broke her leg, &o.; and the supreme court of the state of New York held that this principle applied in that case, and that the plaintiff was entitled to recover his damages. The defendant removed the case to the court for the correction of errors, where the judgment of the supreme court was reversed — not because the general principle laid down by Mr. Justice Spencer was unsound, but because, in the opinion of the court of errors, which was unanimous, it did not apply to that case. See 17 John. R. 439.

The case of Bartlett v. Crozier, differs very essentially from this. In that case the broad question was presented, whether any action could be sustained against the overseer for the injury complained of? In this case the question is, whether the plaintiff below can sustain his action ? and not, whether any action could be sustained against the defendant below, for the damages resulting from the omission of the official duty complained of.

. By the second subdivision of section 21 of the act before referred to, it is made the duty of the director, by and with the advice and consent of the moderator or assessor, to contract with and hire qualified teachers for the district; which contract is required to be in writing, and to specify the wages per week or month, as agreed by the parties. To this contract the district, in its corporate capacity, is a necessary party, and in that capacity it is bound to perform it: and in case of a failure to do so, is liable in damages to the teacher for its non-performance. The district, in its corporate capacity, receives the moneys apportioned to it from the primary school fund, or derived from other sources, for the payment of teachers; and if more is required for that purpose, it is to be collected from those sending children to the school, in proportion to the number of, scholars, and the time they attend. For this purpose, the teadher is to note the daily attendance of each scholar, and make a return of the same to the director. The director is then to ascertain the amount due from each person sending- children to the school, and to make out a rate bill, and annex thereto a warrant for the collection thereof, to be signed, by him and the moderator.

This warrant is to be directed to the district assessor, who is required to collect all rate bills of the district made and delivered to him in accordance with the seventh subdivision of section 21 of the act aforesaid, in obedience to the command of the warrants annexed to such rate bills, and to make a written return of the same to the director. When such moneys have been collected by the assessor, they are school moneys belonging- to the district, and the assessor and his sureties are liable therefor, if not applied by him according- to law, upon the bond which he is required to give to the district; and they are to be drawn by an order of the moderator upon the assessor, as moneys to be disbursed by the district, according- to section 19 of the act aforesaid. If the moneys so required to be collected, had been lost to the district, by reason of the defalcation of the assessor, after they came into his hands, there can be no question but that the district, in its corporate capacity, might have recovered the amount in an action upon the assessor’s bond; and it is equally clear that the members of the corporation could not, in such a case, have sustained actions in their individual names, for their respective portions of the loss.

The converse of the last proposition would be a most palpable violation of that wise maxim, which declares that the law abhors a multiplicity of actions, and which forbids an individual to bring separate actions upon different items of the same account.

How does the case before us differ in principle from the one just supposed, of a loss sustained by the defalcation of the assessor ? In that case the loss would fall upon the district in the first instance, in its corporate capacity, and indirectly upon the owners of taxable property within the district. And so in this case. By reason of the refusal of the defendant below to issue his warrant for the collection of the rate bill, the district lost the amount which should have been collected from the individuals sending pupils to the district school, for the payment of the teacher; and was obliged to collect, by a tax upon the property within the district, the amount required; in consequence of which the plaintiff below, being an inhabitant of the district, owning taxable property therein, was compelled to pay a tax of eight dollars, for the recovery of which this suit is brought. If any right of action accrued, it was in favor of the corporation of which the plaintiff below was a member, and not to him individually. If the plaintiff below could sustain this action, every person who paid any portion of the judgment in favor of the teacher against, the district, might also sustain a separate action for the amount paid by him; and upon the same principle, in case of the default of a county treasurer, every individual in the county who should be compelled to pay a tax to make good the fund lost, might also maintain a separate action against the treasurer for the amount paid by him. No such principle, it is believed, has ever been sanctioned or recognized by any judicial tribunal whose decisions have been reported in the books.

The result to which the foregoing conclusions lead, does not deprive the plaintiff below of a full and adequate remedy for the injury he complains of. If the defendant below has made himself liable, by the omission of official duty charged in the declaration in this case, a recovery against him by the district will not only make the plaintiff below good, but all the other members of the district who suffered a like injury from the same cause. As the injury to the plaintiff below has been indirect, and sustained by him in common with the other members of the corporation as such, so must be his remedy.

It must therefore be certified to the circuit court for the county of Jackson, as the opinion of this court, that the declaration does not contain a cause of action in favor of the plaintiff below, against the defendant below.

Certified accordingly.