text:
    Andrew Climie v. Arthur M. Odell.

      Statutory Appeals : Enlarging the time. The time fised by statute for taking an appeal may be enlarged by stipulation of the parties, in eases where the Court has powez*, upon cause shown, to authorize the appeal.

      Heard and decided January 8.

    Error to Calhoun Circuit.
    Odell recovered a judgment on the 7th of April, 1865, before a Justice of the Peace for tbe County of Calhoun, against Climie, for $275. Three days after the judgment was rendered, the parties stipulated that the defendant might, on or before the 25th day of April, “remove said cause by appeal or certiorari to the Circuit Court for the County of Calhoun, in like manner and with like effect in all respects, as if the same had been done within five days from the time of the rendition of the judgment therein; and that no execution should issue until after the 25th day of April. The appeal was taken and entered in the usual form on the 22d day of April. The cause was regularly noticed for trial at the November term, 1865, and for the several succeeding terms to February term 1867; — at each of which terms it was continued by- consent, except the last, when on motion of the defendant, the appeal was dismissed, on the ground that the appeal was not taken within five days after the rendition of the judgment by the Justice. The appellant brings the cause into this Court by writ of error.

      D. D. Hughes, for plaintiff in error.
   The Court

held that when a statute fixes absolutely the,time within which an appeal must be taken, the appellate Court has no power to enlarge it; and its jurisdiction to entertain the appeal depends upon a compliance with the statute. But when, as in this instance, the statute gives the appellate Court power, under certain circumstances, to authorize the appeal, the parties may, by stipulation, agree to extend the time beyond the period fixed by the statute; and having done so in this case, the Court below erred in dismissing the appeal.


source: Caselaw Access Project

author: Graves, J.

license: Public Domain

text:
    In the matter of Eliza Weinrich.

      Constmction of Statutes: Act No. Ut5 of 1869: Sentences to imprisonment in the Detroit Rouse of Correction. A person convicted as a common prostitute in any county other than Wayne, cannot he punished hy imprisonment in the Detroit House of Correction under section 4 of “the act to provide for the imprisonment and detention' of convicted persons in the Detroit House of Correction.”

      Heard January 5.

      Decided January 10.

      Certiorari to Wayne Circuit.
    Eliza Weinrieh, being imprisoned in the Detroit House of Correction, her attorney petitioned the Circuit Court for the County of Wayne for a habeas corpus to enquire into the cause of her imprisonment. The writ was issued and the return showed that she was in custody by virtue of a commitment under the hand of William Stevenson, a Justice of the Peace for Genesee County, upon a conviction before said. Justice of being a common prostitute, and a sentence thereon to be imprisoned in the Detroit House of Correction for three years. Upon the hearing before the Circuit Judge, the prayer of the petitioner was denied, and she was remanded to custody. The case now comes before this Court by certiorari.

      F. A. Balcer and 8. Lamed, for plaintiff in error.

      D. May, Atty. Gen. and G. V. FT. Lothrop, for respondent.
   Graves, J.

The Court below having decided adversely to the application of the petitioner to be discharged on habeas corpus, we are asked to determine upon the correctness of that decision.

It is insisted by the petitioner, among other things, that the commitment under which she is detained in custody is not supported by the statute under which it was made.

That commitment is as follows:

State of Michigan, County of Genesee, ss. To the Sheriff or any constable of said County, and the Superintendent of the Detroit House of Correction: Greeting:

Whereas: After trial upon a complaint duly taken by me, Eliza Weinrich, of the City of Flint, in said County, was convicted of being a common prostitute, and was by me sentenced to be imprisoned in the Detroit House of Correction three years, from and including this 11th day of November, A. D. 1869; now therefore you, the said Sheriff or Constable, are hereby required to convey said Eliza Weinrich to said House of Correction, and deliver her into the custody of the Superintendent thereof; and you, the said Superintendent of the said House, are commanded to receive said Eliza Weinrich into your custody, and her there safely keep until the expiration of said three years, or until she is discharged in accordance with law.

Given under my hand, at the City of Flint in said County of Genesee, this 11th day of November, 1869.

WILLIAM STEVENSON,

Justice of the Peace.

It thus appears that the offense of which the petitioner was convicted was that of being a common prostitute, and that the trial and conviction took place before a Justice of the County of Genesee at the City of Flint.

The respondent maintains that this commitment of the petitioner and her detention in the House of Correction are warranted by act No. 145 of the laws of 1869, and unless he is correct in this it is very evident that her imprisonment is illegal. The case is clearly not within the original act establishing the institution, or within the provisions of the supplementary act of 1867. — Law 1861, p. 262 ; Latos 1867, p. 175. — And if any portion of the act of 1869 can be resorted to, to sustain the proceedings, it must be either the 4th or 6th sections.

Does the 6th section apply to the ease ? It is as follows: “It shall be lawful for all courts of record having criminal jurisdiction in the State of Michigan, and all Police Justices and Justices of the Peace in said State, and in the exercise of their criminal jurisdiction, to sentence female offenders, who are not more than fifteen years of age, to the Detroit House of Correction, there to remain and be kept until they are twenty-one years of age. The age of said offenders shall bo ascertained to the satisfaction of the Court or officers sentencing said persons, and certified to the Superintendent of said House, who shall receive and keep them until they are twenty-one years of age.” Eleventh section prescribes the forms of commitment to be used in cases falling respectively under the fourth and sixth sections; and that adapted to the latter section is required to contain a certificate of the age of the prisoner, and to state the term of imprisonment to be until the age of twenty-one years is attained.,

Whatever opinion may be entertained as to the validity of this statute, or of section six in particular, there is no possibility of holding, that the proceeding in question could derive even a colorable authority from this last section. The commitment before us specified the term of imprisonment to be three years, and not until the prisoner shall be twenty-one years of age, and it contains no certificate respecting the age of the party.

The fourth section provides among other things that every person more than fifteen years of age, who is a common prostitute, shall upon conviction thereof, be punished by imprisonment in the Detroit House of Correction a term of three years,” and that complaints under that section may, in cities having a Police Justice, be made to such Justice and to Justices of the Peace in townships, villages and cities having no Police Justice.

The commitment in this case precisely coincides with the form prescribed for use under this section, and the offense recited falls under the same provision.

Does this section then support the proceeding? If it were separated from the context and considered a part of the remaining portions of the act, the language of the section would be taken to import that persons of the requisite age convicted of the specified offense, in any part of the State would be subject to imprisonment in the House of Correction. The last paragraph, however, of the preceding section, declares that the “provisions of this act shall apply to the County of Wayne only.” This language is so plain and emphatic as to make it our duty to give it effect wherever the words and sense will possibly permit it; and on careful inspection of the whole statute we observe that every part of it, except the sixth section, is compatible with this restrictive clause. The sixth section cannot be subjected to such provision, but as this section is seen to be inapplicable to the present case, we do not deem it necessary to discuss the effect of Ihe incongruity. The provisions of the fourth section, however, may be controlled by the limiting provision of the third section, and the consequence is that such section must be considered as applying to the “ County of Wayne only.”

According to this view, section fourth would not authorize the commitment and detention of any person convicted in any county but Wayne, of being a common prostitute; and since the conviction of the petitioner occurred in the County of Genesee, it follows that her detention is unauthorized and illegal.

The order of the Court below denying the application and remanding the petitioner must be reversed, and an or der entered here requiring the respondent to discharge her fiom the custody under which she is held.

The other Justices concurred.


author: Christiancy, J.

text:
    The Peninsular Railway Co. v. George Howard et al.

      Statutory appetite: From inquests of damages in Mail Moad cases. An appeal to the Supreme Court, from the confirmation of a report of an assessment of damages by jury empanneled under Sec. 20 of “the act to provide for the incorporation of Rail Road Companies,” (Laws of 1864, p. 13), brings up the case as it stood before the Court who confirmed the report.

      Inquests of damages in Mail Moad cases: Drawing of the jury: Competency of stockholders as juroj's: Obligation to object ' to incompetent persons: Jurors must be freeholders. The law which provides that damages for taking lands for Rail Road purposes may be appraised by a jury of twelve freeholders, is not to be construed as requiring the jury to be composed of the first twelve drawn from the box; and who by the general jury law, are only required to be electors. Those drawn and set aside as incompetent must be considered as no part of the twelve names drawn who are to compose the jury, and the drawing may continue until a qualified jury is obtained. Conoers v. Qi'and M. and 2nd. M. M. Co., 18 Mich., 459, — that jurors in Rail Road cases may be challenged for cause — cited and approved.
    A stockholder of a Rail Road corporation is not competent to sit as a juror upon an inquest empanneled to determine the necessity of taking, and the compensation to be allowed to the owner of land taken for the use of the corporation, and the verdict of a jury — one or more of whose members are thus disqualified — is void.
    Railroad corporations seeking the condemnation of lands for their use must at their peril raise such objection to the competency of a juror when it is known to them; and it is the duty of the juror himself to disclose such interest.
    Jurors upon inquests to determine the necessity of taking lands for Railroads and to appraise the damages must be freeholders.

      Heard January 5.

      Decided January 10.

    Appeal from the Probate Court of Cass County.
    The Peninsular Railway Company desiring to lay the track of their road across land owned by George Howard and occupied by Benjamin Thompson, lying in the township of Ontwa, in the County of Cass, presented their petition to the Probate Court of Cass County, for the appointment of three Commissioners, under the provisions of § 19 of the “Act to provide for the incorporation of Rail Road Companies,” (as amended, Laws of 1859, p. 559), to determine the necessity of taking the land for the use of the rail road, and the compensation to be allowed to the owner.
    On the 6th of July, 1868, the day appointed for the hearing before the Probate Court, the respondents — Howard and Thompson — demanded a jury as provided by the statute. In compliance with this demand the Court “directed that there be drawn from the petit jury box of the County, twelve names, to be inserted in a venire for a panel of jurors in the premises, and that a venire issue in due form for said jurors, requiring them to attend in person at the Probate Office in Cassopolis in said County on the 22d day of July, A. D. 1868, at 10 o’clock A. M., to make a jury in said behalf.” The names of twelve jurors were drawn from the petit jury box and summoned to attend as required by the statute. Of the twelve drawn and summoned, three did not appear as required in the venire; and their places were supplied by three — then summoned by the Sheriff. The jury, thus procured, took and subscribed the oath prescribed by law and proceeded to view the premises and hear the proofs and allegations of the parties: — they affirmed the necessity of taking the land described in the petition, and assessed the damages of the respondent Howard at three hundred dollars, and of the respondent Thompson at one dollar.
    The report of the jury having been confirmed by the Probate Court, the respondent Howard claimed an appeal to this Court under the provisions of section 23 (Comp. L. 1967). The appellant sets forth the grounds of his appeal by his affidavit stating that “on the twenty-second day of July, 1868, three of said jurors failed to appear, and by order of the said Judge of Probate, without the knowledge or consent of this deponent, the said Sheriff placed three other names on the said jury, to wit: Joseph Harper, Orren S. Custard and Jordan P. Osborn, one of whom, the said Orren S. Custard, as appears by his own deposition on file, and as he admitted on oath on the trial of the matter aforesaid, is not a freeholder nor the owner of any real estate in the State of Michigan, or elsewhere. Deponent further says that Levi Norton and Lemuel Chapman, were both at the time of being drawn on said jury, stockholders ill the said Peninsular Railroad Company, and at the time of rendering their verdict as hereinafter expressed, stockholders and interested in said company, and constituting a component part thereof, as one of the directors of the said company, and its attorney knew, at the time of the drawing, aud empanneling and swearing of said jurors, though this deponent had no knowledge whatever of the facts of their interest and of the said Custard not being a freeholder, till after said jury were sworn and met on the line of said Road to locate the same, on the said north east quarter of said section eighteen, when he immediately filed his protest against the said jury proceeding to act in the premises, which the said jury under the order and advice of M. S. Brackett, Esq., Attorney of said Company refused to listen to, but against protest, proceeded to appropriate about six and one half acres of deponent’s land, lying . and being a part of the north east quarter of section eighteen aforesaid, then and still owned and possessed by this deponent, and as this deponent alleges contrary to law and against the just rights of this deponent. This deponent further says that he has been notified by the Attorney of the said corporation, M. S. • Brackett to appear this the third day of August, before the Honorable the Court of Probate, for the said County of Cass, and show cause why the report and verdict of said jury should not be confirmed; and in compliance with said notice comes and shows the following reasons why the said report and verdict should not be confirmed, viz:
    1st. The jury were not a legal jury, for the reason one of them, Orren Custard, was not as required by the statute, a freeholder.
    2d. Two of them to wit: Lemuel Chapman and Levi Norton were stockholders in and constituted a part of said company, and were thereby rendered incompetent to act in the premises.
    3d. The property proposed to be taken was sworn by the lowest testimony to be worth from five hundred and fifty to six hundred dollars, and only three hundred were allowed.
    4th. The verdict and report is against law and evidence in all respects, and therefore ought not to be confirmed, and further deponent says not.”

      D. D. Hughes, for the Railway Co.
    This was a proceeding to condemn certain lands of the respondent, by petition to the Probate Court, under the general railroad law of this State. The petition was presented to the Probate Court of Cass County on the 22d of June, 1868, and is governed by the law of 1859. — Laws of 1859 p. 559. — A jury was drawn and summoned, heard the ease and made a report to the Probate Court. The case comes to this Court under the statute. — Comp. L. § 1967 No assignment of errors has been filed in this. Court, and the petitioners have no guide to the questions sought to be raised by the respondent, except such as are set forth in the affidavit for appeal.
    Both respondents appeared by counsel, and it does not appear that any cause was shown against the granting of prayer of the petition, and the respondents demanded a jury. An order was made, granting the prayer of the petition and complying with the demand for a jury. The jury were regularly sworn, and proceeded to view the premises, and hear the proofs and allegations of the parties, and reduced the testimony to writing. The respondents appeared before the jury at the time of the examination of the premises, and the taking of the proofs, and proceeded to prove, by way of challenge, that two of the jurors, Levi D. Norton and Lemuel Chapman, were stockholders in the Peninsular Railroad Company.
    This testimony was properly rejected by the jury. It was not offered to the Court which drew and swore the jury at all, but to the jury itself; and whatever maybe said as to the qualifications of the jurors as sought to be proved, it is very clear that the jury could not hear and decide the challenge. The act itself does not point out the method of trying the jury, but the proceeding is in a court of record, possessing full incidental power to execute the jurisdiction conferred.
    It is very clear that all questions as to the competency of the jury are to be settled by the Court, as much so as in ordinary cases in the Courts, and the record fails to show that any objection was made to any juror in the presence or hearing of the Court, or that any such objection was made or testimony offered to the Court.
    A challenge must be made at the proper time or it is waived. — Eggleston v. Smiley, 17 Johns, 133; Milwaukee v. Hale, 1 Doug., 306; Bourke v. James, 4 Mich., 336; Slight v. Henning, 12 Mich., 371.

    The testimony offered to the jury to show that O. S. Custard, a juryman, was not a freeholder, was properly rejected on the same grounds.

      Balch, Smiley é Balch, for respondents.
    I. The first point made as a cause for setting aside all the proceedings, subsequent to the drawing of the jury, is that they were not a constitutional and legal jury. (See Const, of Mich. Art. 18 § 2.) The necessity for the taking the private property desired, and the compensation to be rendered therefor shall be ascertained by a jury of twelve freeholders. Twelve names were drawn from the petit jury box of Cass County by the Judge of Probate. Three of whom did not appear. Joseph ’’Harper, Orrin S. Custard and Jordan P. Osborn were then summoned as talesmen. Orrin S. Custard, as appears by the testimony taken and returned in the case was not a freeholder. Two of the jury, to Avit: Lemuel Chapman and Levi D. Norton, were stockholders and constituted a part of the said Railway company, and .were therefore disqualified. They could not be called impartial; they were interested in getting defendant’s land and in getting it as cheap as possible. The law requires jurors to be disinterested and impartial. The spirit of the law is well shadowed forth in our statutes for struck or special juries. ( Comp. L. §§ 4-880, 4388.) The -jurors should certainly be free from interest in order to meet the constitutional and legal requirements. Redfield on Railways, vol. 1, 218, 219 n 81; People v. First Judge of Columbia, 2 Hill, 398; Powers v. Bears, 12 Wis. 213; R. & S. R. R. Co. v. Budlong, 6 How. P. R. 457; Cooley Const. Lim. p. 563.

    II. The jury was not in compliance with the statute under which these proceedings were had. (Laws of 1859, p. 562, § 20.) “Any person may demand a jury of twelve freeholders residing in the' vicinity of such property,” &c. Now the law authorizes only freeholders to be drawn and summoned. Custard in this ease was not drawn from the box and the Sheriff had only a right “to summon competent persons to fill the panel,” to wit, freeholders, disinterested freeholders.
    III. If the jurors were not freeholders, they were not a jury in a constitutional and legal sense and their whole proceedings were void, and it was error in the Court of Probate to confirm them for the reason there was nothing to confirm. Walker v. B. & Maine R. R. Co. 3 Cush, 1; Sharp v. Johnson, 4 Hill 92; Sharp v. Spier, 4 Hill 76 ; Striker v. Kelly, 7 Hill 25; Doughty v. Hope, 3 Denio 595.

    The objections to the report were well taken, and there was no waiver of the irregulaity of the proceedings by the defendants. 16 Mich. 351; 15 Vt. 61; 2 Doug (M.) 867; 1 Ben. Monroe 218; 82 Me. 810; 47 Me. 598; 6 Clarke (Iowa) 62; 1 Oonn. 401.

    The proper time to make the objections was at the confirmation of the report. 2 Doug. (M.) 867; 1 Comp. L. 648.

   Christiancy, J.

• The appeal in this case, under section 23 of the general railroad law, (1 Comp. L. 1967), brings before us all matters which were before the Judge of Probate, properly bearing upon the question of the confirmation of the jury’s report or verdict, and places the case before us in the same asjoect as it stood before him. And if any sufficient cause was shown before him against the confirmation, we must set aside the report or proceedings so far as they shall be found defective.

The first question presented is whether the jury was properly constituted to authorize them to act at all upon any question before them; if not, it is of no consequence what their action may have been.

The Statute (Section 20, Ch. 67, Comp. Laws, as amended, Laws of 1859,p.562, Laws of 1864,p. 15, 14,) requires a jury to consist of twelve freeholders, and provides for drawing the jury from the petit jury box of the county.

Two of the jurors so drawn, in this case and who participated in all the action of the jury, were stockholders of the company, seeking by these proceedings to condemn and appropriate the respondents lands. They were not challenged, nor any questions asked of them touching their qualifications, before or at the time they were sworn. But the respondents were ignorant of their being such stockholders, until after they were sworn and had met on the line of the railroad for action. The respondents thereupon entered a protest with the jury against further proceedings; which, however, the jury disregarded and went on with their proceedings. The Judge did not accompany or preside over them in their action, and we are unable to find any authority in the act for him to do so. The respondents could not bring this objection before him until the report or proceedings of the jury came up before him for confirmation.

The two stockholders upon the jury were substantially parties interested in condemning tbe lands and reducing tbe damages; they were in effect deciding m their own cause.

The maxim that no man shall be judge in his own cause, is one deeply rooted in the common law, and can never be overlooked anywhere, where impartial justice is one of the objects of judicial administration. And in this special proceeding for taking the property of individuals against their will, in which the jury act in effect as judges, in the absence and beyond the control of the Court, we think this maxim is applicable to them as well as judges. Lord Coke asserts that “even an act of Parliament made against natural equity, as to make a man a judge in his own cause, is void, in itself.”

The cases in England and in this country are numerous, where the judgment and proceedings of courts and various tribunals have been set aside on the ground of such interest. And in a modern case in England, where the Lord Chancellor, who was a shareholder in a company, in whose favor the Yice Chancellor had rendered a decree, affirmed the decree, it was reversed by the House of Lords, on that ground, though there was not the slightest reason for believing that his action was influenced by that interest, or that it was present to his mind. ' (Dimes v. Proprietors of Grand Junction Canal, 3 House of Lords Gases, 769).

It is not a matter of discretion with the judge or other person acting in a judicial capacity, nor is it left to his own sense of propriety or decency; but the principle forbids him to act in such capacity at all, when he is thus interested or when he may possibly be subjected to the temptation. His powers are absolutely subject to this limitation. ( Washington Ins. Co. v. Price, 2 Hopkins Ch. 2.) And in a court composed of several Justices of the Peace, if one of them be interested in a proceeding before them, in which he acts at all, the judgment or determination will be void, though there was a majority in favor of the decision, without counting the interested Justice. See Queen v. Justices of Hertfordshire, 6 Q. B. 753; also Queen v. Justices of Suffolk, 18 Q. B. 416; Queen v. Justices of London, ib. 421; and see my brother’s Cooley’s work on Constitutional Limitations 410 to 413, where the authorities are collected and the result fairly stated.

It has also been held that this objection- is not waived by the neglect of a party to take advantage of it, on the first opportunity. But it may be raised in the appellate Court for the first time. Richardson v. Welcome, 6 Cush. 882 ; Dimes v. Proprietors &c., 3 House of Lords Cases, 787; and see Sigourney v. Sibley, 21 Pick. 106.

These stockholders must in this case have been aware of their own interests. And the Company and its counsel must be presumed to have known it. The petitioners, therefore, were bound at their peril to raise the objection themselves, and cannot be allowed to take any benefit from the action of a jury thus constituted, as against parties who were ignorant of the facts at the time the jury was sworn.

Though the words of the statute might seem to require that only the first twelve names drawn from the box, should compose the jury; yet as the same section requires them to be freeholders, while the jurors whose names are returned by the assessors and put into the box are only required to be electors, ( Comp. Laws 4850 to 4355), it is manifest that it might be impossible ever to obtain a legal jury, unless any of those drawn from the box might be challenged for cause. "We held in Convers v. Grand R. & Ind. R. R. Co. 18 Mich. 459, that challenge for cause might be made. And we think it follows that those set aside on such challenge, must be considered as no part of the twelve names drawn, who are to compose the jury, and that the drawing may continue till a qualified jury is obtained. ,

We are not called upon to express any opinion as to the power of the Legislature to authorize such stockholders to sit as jurors; as we are satisfied they have not attempted it.

The jury was illegally constituted. The case stands as if no jury had ever been empanneled. All their proceedings and the .confirmation thereof must be set aside, and the Judge of Probate must proceed to empannel a jury for the purposes required by the act.

The respondents must have judgment for costs.

The other Justices concurred.


author: Campbell, Oh. J.

text:
    Jacob L. Brown v. Lawrence Kelley.

      Appeals: Affidavit for a special return,: Presumption of regularity. Where an affidavit for a special return by a Justice of the Peace in an appeal case, states the time of making a motion the denial of which is alleged to be error, and the return shows the motion, but does not specify the time when it was made ; and there being no application by the opposite party for a farther return, the motion will be presumed to have been made at the time stated in the affidavit.

      Justices'' Oourts: Giving bail on arrest: Adjournment: Waiver. Giving bailón arrest by virtue of a warrant issued by a Justice of the Peace, is no waiver of the right to object to the affidavit, on which the warrant was founded. Nor will an adjournment, obtained before pleading, by a party arrested, waive any right to object to the proceedings on which the arrest was founded.

      Justices'Courts: Affidavit to hold, to bail: Facts must be stated. The statement of “ facts and circumstances ” required by the statute in an affidavit for a warrant ( Comp. L. § 3673.) must distinctly aver, upon knowledge, each fact necessary to make out a cause of complaint. Proctor v. Prout, 17 Mich., US, cited and approved.

      Heard January 6.

      Decided January 10.

    Error to Kalamazoo Circuit.
    This was an action of trespass on the case commenced by a warrant issued by a Justice of the Peace, upon an affidavit of which the following is a copy.
    “ State of Michigan, Kalamazoo County, ss. Lawrence Kelly, of said county, being duly sworn, deposes and says, that he has a just cause of action and a demand not exceeding three hundred dollars, arising out of a contract against Jacob L. Brown, of the township of Kalamazoo, in said county, against whom he applies for process by warrant for a breach of trust in converting and disposing of the money of this deponent to the amount of two hundred dollars; and this deponent further says, that heretofore, to wit, on the 17th day of September, A. D. 1866, he placed in the hands of Jacob L. Brown, the sum of three hundred dollars for safe keeping, to be kept by the said Jacob L. Brown until such time as this deponent should call for it; that the said Brown instead of returning to this deponent the said sum of money so entrusted to him, converted two hundred dollars of the same to his own use and now wholly refuses to return the same to this deponent.
    The defendant was arrested and brought before the Justice, and upon giving bail was released from custody, and the cause was adjourned until the 10th day of December, A. D. 1867, at 10 o’clock, A. M., at which time the pleadings were to be put in. The proceedings on the adjourned day are stated in the affidavit for appeal thus: “On the 10th day of December, A. D., 1867, at the time aforesaid, said cause was called on for trial, and the parties appeared, whereupon this deponent moved to dismiss said cause on the ground of the insufficiency of the affidavit on which said capias ad respondendum, was issued, that said motion to dismiss said cause was overruled, whereupon the plaintiff, said Lawrence Kelly, declared in an action of trespass on the case upon all the common counts in assumpsit, to his damage, two hundred dollars, to whicli this deponent pleaded the general issue and gave notice,” &c. The cause was tried before the Justice without a jury, and he rendered final judgment on an issue of fact joined between the parties to said cause, in favor of the plaintiff, for, $188.55, damages and costs of suit taxed at $5.00.
    The affidavit for appeal further alleged “ that the said judgment is erroneous for the following cause to wit: That said Justice erred in holding and deciding on said motion to dismiss said cause, that the affidavit on which said capias

      ad respondendum was founded and issued, set forth a sufficient breach of trust to authorize and warrant the issuing of said capias ad respondendum although no demand of or call for the money therein and hereinbefore set forth was set forth in, or expressed in said affidavit.”
    The return of the Justice of the special matter alleged in the affidavit states: “ And as to the matter stated and set forth in the affidavit to appeal said cause hereto annexed, I do further return that defendant moved to dismiss said cause on the ground of the insufficiency of the affidavit on which the warrant was issued, and that said motion was overruled.”
    The Circuit Court affirmed the judgment of the Justice, and the cause now comes into this Court by writ of error.

      William Fletcher, for plaintiff in error.
    I. The affidavit on which the warrant is founded states a conclusion of law. It does not set forth the facts and circumstances within the knowledge of the person making such affidavit, constituting the grounds of the application, so as to authorize and warrant the issuing of said warrant. It simply states that plaintiff in error converted the money to his own use. It does not state that any demand was made of him for the money. Comp. L. § 3671, {clause 3) § 3673 ; Decker v. Bryant, 7 Barb. 182; Caldwell v. Colegate, 7 Barb. 253; Wood v. Melius, 8 Allen, 434; Chandler v. Nash, 5 Mich., 409; Wilson v. Arnold, et al. 5 Mich., 98; Miles v. Goffinet, 16 Mich., 472 ; Proctor v. Prout, 17 Mich., 478.

    II. The Justice who issued the warrant had no jurisdiction, inasmuch as the affidavit on which the warrant was founded, does not set forth a breach of trust, it simply alleging a conversion of, without stating that a demand was made for the money.

      Severens & Burrows, for defendant in error.
    The first four assignments of error are founded on the supposed insufficiency of the affidavit for the warrant. The case was instituted under § 3671 of Comp. Laws, authorizing proceedings by warrant in case of breach of trust. The affidavit states that the plaintiff deposited with defendant, a certain sum of money to be returned when called for, and that the defendant has converted part of the same to his own use, and now refuses to return the same to the plaintiff.
    Alleging that a bailee has converted to his own use property placed in his hands merely for safe keeping, manifestly discloses a case of breach of trust.
    Although we claim that this affidavit is ample to disclose a breach of trust, yet it would be a sufficient answer to the objection to say that it contains evidence to invoke the consideration of the justice, and he having held it sufficient, the court would not weigh the the evidence to determine its adequacy. Rosenfield v. Howard, 15 Barb. 546. To the same effect are — Jaclcson v. People, 9 Mich., 111 and 3 Mich., 612; 8 Mich., 424; 10 Mich., 9; 11 Mich., 353.

    But it is submitted that no question of the kind attempted to be raised by the special appeal, was available to the plaintiff in error in the court below. He appeared before the Justice, applied for and obtained an adjournment, and on the adjourned day moved to dismiss on the ground of an alleged insufficiency in the affidavit. This being a case where by statute the Justice had jurisdiction of the subject matter, and the defendant having submitted his person to the jurisdiction of the Justice, he was too late with his motion to dismiss. Stewart v. Hill, 1 Mich., 265 ; Lewis v. Brackenridge, 1 Blackf. 112, 115.

   Campbell, Oh. J.

The defendant in error sued Brown before a Justice, and commenced proceedings by swearing out a warrant for an alleged breach of trust. The affidavit set out the facts relied on in the following words, — “ That heretofore, to wit: on the 17th day of September, 1866, he placed in the hands of Jacob L. Brown, the sum of three hundred dollars tor safe keeping, to be kept by the said Jacob L. Brown until such time as this deponent should call for it; that the said Brown, instead of restoring to this deponent the said sum of money so entrusted to him, converted two hundred dollars of the same to his own use, and now wholly refuses to return the same to this deponent.”

The warrant was issued returnable forthwith, and Brown was at once arrested, and gave bail, upon which the suit was adjourned for eight days, at the expiration of which time the cause was tried and judgment was rendered against him.

He took an appeal to the Circuit, and set up by way of special reason for appeal, that on the adjourned day, and before any pleading was in, he moved to dismiss the case for the insufficiency of the affidavit, but the motion was denied, and thereupon plaintiff declared, and issue was joined, and the trial proceeded.

The Justice in his return set forth in the first place the facts required in ordinary appeals, without mentioning the date of the arrest, appearance or pleading, and without mentioning any bail bond or adjournment. He then proceeds as follows: “ And as to the matters stated and set forth in the affidavit to appeal said cause hereto annexed, I do further return that defendant moved to dismiss said cause on the ground of the insufficiency of the affidavit on which the warrant was issued, and that said motion was overruled.”

It is suggested that there is nothing to authorize this objection, to be relied on upon the appeal in the Circuit Court, or in this Court, because the return does not say, in so many words, at what precise stage of the case the motion was made.

But this objection is not well founded. The return was made in response to a special- affidavit, which mentioned when this was done, and relied upon it as the only special ground of error. If it did not set forth the facts truly, and if any step had been taken before the motion, which would have interfered with the defendant’s right, to make it, and would have operated as a waiver, then it must be presumed the Justice would have so stated, or a further return would have been obtained by the original plaintiif. But in the absence of such a statement, it must be assumed the Justice intended to show that the motion was made when it properly might have been, and therefore whatever objection might be relied on, upon the appeal, would be admissible.

The question, therefore, arises whether giving bail upon the arrest and adjournment operated as a waiver of the right to object to the affidavit.

The warrant requires the party arrested to be brought forthwith before the Justice. And it is probably because on such summary proceeding a defendant has no time to consult. and employ counsel, that the statute which contemplates immediate pleading in other cases, directs that on the return of a warrant served, the pleadings, instead of being put in at once, “shall be made within such reasonable time as the Justice-shall allow for that purpose.” (# G. L. 3713). And before any adjournment is allowed to a defendant arrested upon warrant, he is compelled to give bond or remain in custody.

If giving this bond should be regarded as a waiver of objection to the arrest, the result must be in many cases, and in nearly all in retired districts, that a person must remain in custody, or be compelled to waive his rights. It is not conceivable that under a statute which recognized the necessity for indulgence in pleading, any such rigorous and unreasonable rule should be tolerated. The exemption from imprisonment is now a constitutional right, and ought not to be considered as waived, unless the circumstances are such as to make it inequitable for a party to assert it. Under the old common law system, arrest was the rule. Now it is the exception.’ And if courts should now apply, in courts of record, where there is always time and opportunity for obtaining professional aid, the same rules as to waiver that were formerly enforced, there is no sound reason for extending such rigor to summary arrests and proceedings before magistrates, where defendants cannot be expected to understand these technical rules, and where the Justices are much more likely than regular Judges to allow writs on insufficient affidavits. The privilege would be of very small value if it could be taken away so easily. We think the bond was no waiver.

The affidavit is clearly defective. The statute requires it to set forth the facts and circumstances within the knowledge of the person making the affidavit, constituting the grounds of the application. There is not a single fact or circumstance alleged here within the plaintiff’s knowledge, tending to make out a case. The oath is to a mere conclusion of law. It does not show when or where or by whom any demand was made, or even that any demand was made at all upon Brown, or how he met the demand if made. The necessity of such a showing is made more apparent in this case, when the plaintiff showed the facts and circumstances on the trial negativing the truth of his conclusions. The facts to be stated in the affidavit must be given in the same way as on the stand, by a distinct averment of each fact upon knowledge, and the facts must be such as in law tend to make out the cause of complaint. It is not for the party to draw his own inferences. ■ He must state matters which would justify others in drawing them. The rules heretofore laid down in this court, have always required the facts themselves to appear upon knowledge. No other rule would preserve the constitutional right against warrants not based on probable canse, supported by oath or affirmation. Const. Art. 6, § 26. Proctor v. Prout, 17 Mich., 473.

The judgment must be reversed with costs.

The other Justices concurred.


author: Cooley, J.

text:
    Jane Briggs v. Russell Briggs.

      Equity practice: Ordering cause to stand over to amend bill. It is within the discretion of the Court, after a cause has been set down for hearing on bill, answer and replication, to permit the bill to be amended and the cause to be opened for proofs ; and the exercise of such a discretion is proper in a case where since the closing of proofs evidence of material facts has come to the knowledge of the complainant, the existence of which was unknown before; and the facts were of a character rendering it quite proper not to set them out in the bill, unless then supposed to be susceptible of proof.

      Equity pleading: Verifying amendments in divorce cases. When a divorce bill is amended, the whole bill, as amended, should be re-sworn to. It is not sufficient that the proposed amendments have been sworn to in the petition for leave to amend; because our practice requires that the complainant in divorce cases shall deny collusion. But when the facts, which are to be introduced by amendment, are of a nature to negative collusion, and the objection — that the bill as amended is not sworn to — is first made in this Court, it will be disregarded.

      Evidence: Privileged communications: Physicians and Surgeons. It is not competent for a Physician or Surgeon to testify to facts which have been communicated to him for the purpose of enabling him to perform his professional duty, or were, in any way, brought to his knowledge for that purpose.

      Divorce on the ground of cruelty: Evidence. While it is true that in a bill for a divorce on the ground of cruelty, the specific acts on which the charge rests must be set out in the bill; the evidence is not necessarily limited to the particular facts charged. Evidence of other facts which serve to give character to the specified facts proved, is admissible. Thus, acts of personal violence, when intrinsically and separately considered, may not amount to such a degree of cruelty as to justify a divorce; yet when attended by habitual brutal behaviour, so as to be a constant outrage upon the sense of decency and propriety of the party to be affected by them, a case of extreme cruelty within the meaning of the statute is established.

      Heard January 6.

      Decided January 10.

    Appeal in Chancery from Washtenaw Circuit.
    The complainant filed her bill against her husband for a divorce on the ground of cruelty. The defendant answered ; and issue was joined by the filing of a replication, An order was entered closing proofs; and the cause stood for hearing on bill, answer and replication. At this stage of it, the complainant filed a petition, duly verified, for leave to amend her bill by inserting an additional specification of cruelty, of the facts in support oí which, she avers, that she had no certain knowledge, until after the filing of the bill and answer in the cause. The Court granted leave to amend; the defendant answered, and on the issue as joined upon the amended bill and answer, the proofs were taken and the cause brought to a hearing. The Court below dismissed the bill; and the complainant appeals to this Court.

      Norris & Uhl, for complainant.
    I. On the part of the complainant it is contended that the charges in the bill are sufficient; that'there is no demurrer to any part of the bill, no objection to any of the testimony because of a want of more specific charges. There are some acts of cruelty proven not specially charged, but their character is so far indicated as to prevent any surprise on the defendant, and they may be proven. Story’s By. PI. §§ 28, 252; S Greenleaf’s Bv. § 856 ; 6 John. Gh. B. 851; B Iw. Gh. B. lj And all such acts may in any state of the pleadings be proven, by way of indticement — throwing light on the conduct of the parties. Green-leaf’s Bv. § 857.

    II. Some considerable portion of the complainant’s case may rest upon the admissions of the defendant, not alone, but supported by other testimony .looking in the same direction, and under circumstances clearly showing no collusion. As to the force of such testimony the Court will note the following authorities: Bishop on Marriage and Divorce, §§ 309. 810; Sawyer v. Sawyer, Walk. Ch. R. 50; 1 Greenleaf’s Bv. §§ 201, 218; 3 lb. § 376.

      III. What is the “extreme cruelty” of the statute? It is partly defined there in the expression, “ whether practiced by using personal violence, or by any other means.” Comp. L., § 8228. Its further limitations are fully given in general treatises. Bishop on Marriage and Divorce, §§ 454, 462, 468, 469, 471, 477, 479.

      “ Our statutes do not confine such cruelty to mete physical violence, which is by no means the zvorst injury that can be inflicted on persons of refined sensibility, but the grievance of whatever kind must be of the most aggravated nature to justify a divorce.” Cooper v. Cooper, 17 Mich., 210. It need not be Mows. Bishop, §§ 729, 780. Ill treatment of child. Ib. § 785. One act may be sufficient. Ib. §§ 744, 747. If it threaten bodily harm. Ib. § 748.

      H. J. Bealces, for defendant.
    I, The amendment ought not to have been allowed. 1. The Court had no power to make a new case by amendment. People v. Washtenaw Judges, 1 Doug., 434; People v. Wayne Circuit Court, 18 Mich, 206. These were cases at law, but the same rule prevails in chancery. 4 Paige, 588, 541; 1 Hoards, 46, 52; 14 Peters, 156; 1 Barbour’s Ch. Prac., 207; 2 Barb. Ch. Prac., 895. %. If the amendment would have been otherwise proper the application was made too late, “After publication passed and the bill has been set down for hearing, the bill can be amended in no other respect than by making parties.” 1 Daniel Ch. Prac., 474 (marginal page 459.) “ And when parties are added after publication passed, the cause, as to such parties, must be heard on bill and answer only.” 1 Daniel Ch, Prac., 404 (marginal 478). 3. The amendment should have been applied for as soon as the alleged fact was discovered. 1 Paige, 424 1 2 Paige, 67.

    II. No divorce should be granted unless the specific acts of cruelty charged in the bill have been proved, nor unless those acts as charged and proved are sufficient, even'if the Court should be of opinion that the testimony would have authorized other charges. ( Cases cited in section Iftlfl of Cooley’s Digest). The general charge amounts to nothing inore than a summary of the specifications alleged.
    Bishop says ‘‘ it is probably everywhere true with us (except in Vermont), that to allege cruelty in general terms and in the mere words of the statute is not sufficient; the facts must with greater or less minuteness be set out.” £. Bishop, Mar. and Div. § 651, and cases there cited. See also §§ 61fi, 650.

    If the general conduct of the parties aside from the specific 'acts charged in the bill be admissible for any purpose, it is only to enable the Court to understand more fully the specific acts complained of as circumstances in aggravation or extension. % Bishop Mar. and Div. § 657 {marginal p. Jfi7), 658 and cases cited.

   Cooley, J.

The bill of complaint in this cause was filed September 29, 1866, for the purpose of procuring a divorce from the bonds of matrimony on the ground of extreme .cruelty.

The marriage took place in Skaneateles, N. Y., where complainant then resided, in October, 1843. The defendant, at the time lived at Saline, Michigan, where he had children hy a former marriage, and to which place he at once brought his wife. The defendant was then thirty-eight years of age, or thereabouts, and the complainant thirty-three. So far as we are able to judge from the record, the marriage was an uncomfortable one from the outset. The defendant has taken testimony to show that when his wife reached his place at Saline, she at first refused to leave the stage, and gave indications of disappointment and dissatisfaction. A few months alter the marriage, for reasons into which we get very faint insight, she left him, and went to a neighbor’s, apparently with the intention of not returning, but was subsequently induced to return on his solicitation, and on his promise to treat her better. Somewhat later, visits made by her to her former home appear to have caused more or less difficulty and dispute between the parties. When she was at home, the record would indicate that the parties lived very much apart from the rest of the world, neither going abroad much, nor having many visitors, and there was little opportunity for either to make proof of the exact state of their relations. So far as we have evidence, it seems to indicate that he was harsh, tyrannical, and overbearing towards his family, penurious in his provision for their comforts, and coarse, profane and obscene in his language. A daughter was born to the parties in 1851, but this does not seem to have improved their relations. Soon after the birth of the daughter, if not before, both parties seem to have been somewhat afflicted with disease, the precise nature .of which the evidence does not satisfactorily disclose, but which appears to have left both with shattered constitutions. The defendant puts in evidence to show that when the daughter was about two years of age, his wife, who had previously been sleeping apart from him, refused to share his bed, and advised him with evident ill humour, to go abroad for the satisfaction of his desires. It is impossible fully to understand this transaction, without some knowledge of the secret cause of dissatisfaction then existing between the parties; but as no other evidence appears in the case from which an inference of want of modesty'is to be drawn against the complainant, her language on this occasion appears to us to be the petulant exclamation of a wife, who suspected the condition of defendant to be the result of previous unlawful indulgence, rather than an exhibition of mere caprice, or of causeless ill humor. The state of things between the parties did not improve from this time on, and at length the present bill was filed.

The original bill contained general charges of long continued ill treatment, and also specified :

1. That in the summer of 1854, he said he would kill her if he could get to her; that he then took up a stick of wood and then a' hammer, and threatened to split her brains out, and that she was obliged to call on one of his sons by a former marriage to defend her. '

That in the spring of 1866 he shook his fist in her face and called her a damned curse of hell.

3. That on another occasion, the same spring, he threatened to shoot both her and her daughter.

4. That he was in the habit of treating her with abusive language, when she called upon him for necessary wearing apparel.

And after the cause was at issue, and had been set down for hearing on the pleadings without evidence, the court permitted an amendment of the bill by which a fifth act of cruelty was specified; to wit, that in the year 1851, the defendant knowingly and wilfully communicated to complainant a venereal disease.

The right of the court to permit the bill to be amended, and the cause to be open' to proofs in the condition in which it then stood is contested; but we think it clearly had the power to do so, and that its discretion was properly exercised in the case. In her petition for the amendment the complainant shows that she had not previously been possessed of the facts which would have warranted her making this serious charge, and from what she discloses as the source of her information, we cannot doubt that, however strongly she may have suspected the fact before, it was now for the first time presented in such form as to enable her, as she thought, to obtain the requisite evidence. She was excusable, therefore, for not embracing the charge in the original bill, and she was guilty of ' no laches in seeking the amendment afterwards.

It was objected, however, that the amendment was not sworn to. The petition appears to have been sworn to in due form, and as the amendment was made a part thereof, its facts were all duly verified. It is proper to say, however, that when a divorce bill is amended, the whole bill as amended ought afterwards to be sworn to. Our practice requires the complainant to make oath that the acts charged as causes for divorce, were not committed with the consent, connivance, privity or procurement of the complainant; and in regard to any fact introduced into the will by way of amendment, this requirement is avoided if the bill is not again sworn to after such amendment is made. An oath to the petition for leave to amend, affirming only the truth of the charge proposed to be made thereby, obviously falls short of a compliance with this practice.' But, as the peculiar charge here made is one which would of itself negative any collusion, we are not disposed to allow force to the objection, especially as it was not made in the court below. The amendment, therefore, and the evidence to sustain it we regard as properly before us for consideration, on this hearing.

It will be convenient, perhaps, to consider this branch of the case before we proceed to the other charges. Complainant seeks to support the allegation in the amendment:

1. By proving a specific act of adultery between the defendant and a woman living near him, sometime in 1853 or thereabouts.

2. By statements made by him indicating that he had contracted a venereal disease from this woman; and,

3. By the evidence of his attending physician that he had such disease about that time, and a letter from the defendant to the physician which is claimed to admit the fact.

The letter referred to is not proved in any such manner as to make it evidence. The physician testifies to having received it, and gives what he says is an extract; but it is not otherwise produced or put in evidence. Nor do we think the physician’s evidence was admissible. He had no knowledge upon the subject except what he obtained in the course of his professional employment, and the case appears to be directly within the statute which forbids a physician or surgeon to disclose any information, which he may have acquired in attending any patient in his professional character, and which information was necessary to prescribe for such patient as a physician, or to do any act for him as a surgeon. Oomp. Laws § J¡.8%8. We do not understand the information here referred to, to be confined to communications made by the patient to the physician, but regard it as protecting, with the veil of privilege, whatever in order to enable the physician to prescribe, was disclosed to any of his senses, and which in any way was brought to his knowledge for that purpose.

•Nor do we think the other evidence on this branch of the case sufficiently establishes the charge. There is perhaps enough in the case to Warrant, in the mind of complainant, a strong suspicion that the charge was well founded; but there is not such testimony thereof as could justify a court in adjudging it to be proved. We must therefore put this charge entirely aside, and proceed to the examination of the other evidence to .see if any other •charge, of sufficient magnitude to warrant a divorce, has been satisfactorily made out.

The complainant, it appears, has not confined her evidence to the specific acts of cruelty charged in the bill, but has given testimony of ocher instances, none of them regarded by itself very serious in character, but all tending to show that the general conduct of defendant was such as to render her life miserable. For this purpose and to characterize and explain the particular acts charged in the bill, evidence of this description was competent and proper. Where, however, specific acts of cruelty are relied upon for a divorce, they ought to be distinctly set forth in the bill, and they ought also to be satisfactorily established, before a court is -warranted in directing a decree for divorce. But there are many cases where no specific act standing by itself and without consideration of the preceding conduct, could be regarded as of sufficient enormity to warrant the interposition of the court, while yet, when the. general behaviour of the party is seen and observed, the same act, which otherwise might be regarded as a temporary ebullition of passion or ill humour, becomes clearly indicative of deep seated malice, and malignant intent to render the life of its object unendurable. And we have been forced in the present case to regard some cases of passionate conduct on the part of defendant, no more gross than those which might occur- in families where concord and comfort generally prevailed, as the occasional exhibitions of a feeling of utter disregard for .the comfort and happiness of complainant, which prevailed with defendant as a rule, and from which she was suffering in very many ways, which could not be disclosed by proof of specific acts.

The threatening of complainant with a stick of wood and hammer, so as to oblige her to call for assistance we regard a3 made oat by the evidence. It is true the evidence differs from the allegation in the bill in showing, not that any one came to her assistance when the outcry was made, but that he then desisted and retired; but this variance from the allegation is not such as to warrant'us in rejecting the proof, when it carries to our minds a conviction of its substantial truthfulness. And it is quite possible, as suggested on the argument, that the pleader in drawing the bill may have misapprehended the precise statement made to him by the complainant, and that he,, in attempting to set it forth, put the charge in words somewhat different from what she understood when it was read to her.

When we go beyond this specific act, it is a very significant circumstance that the child of the parties adheres to the mother, and appears to be equally with her an object of dislike to the father, and that his children by the former wife, so far as they appear in the ease previous to the commencement of the suit, seem generally to exhibit sympathy with the complainant, and a want of affection for their father. And although these last named children now come forward to give evidence lor the defendant, we have looked in vain through that evidence for anything which fairly tends to support the defence, or to show that the defendant was a kind or affectionate husband or father. Whatever is said by them, with a view of conveying this impression, is more than counterbalanced by other evidence which they also give.

That a woman with ordinary womanly instincts and modesty should be compelled to live with one who would constantly outrage her sense of propriety and decency by vile and disgusting expressions, not merely when they were alone, but also in the presence of others, is certainly a great hardship, which is aggravated and made many times more severe by the fact that a young daughter is compelled to hear the same profane and indecent language. The disregard of the decencies of life under such circumstances, unless it appears that the woman herself is 'a participant in the same indecencies, or at least is not annoyed by them, is a disregard of her comfort also, and partakes of cruelty, even though it be' not of that extreme character which would authorize a divorce. If a man persistently annoys his wife and family by indecency, he ought at least to be exceedingly careful that he does not also at any time resort to actual violence; for, if he does, he cannot claim from the Court that charitable construction of his conduct, which a man of general correct deportment may properly demand.

There can be no doubt, we think, that the difficulties between the parties have reached a point that renders undesirable that they should any longer attempt to live together, and that the further continuance of the bond of matrimony between them would not be of benefit to either. And we are forced to conclude from this record, that the cause of this unhappy state of affairs is the unkind conduct of defendant, long continued, and wholly unexcused. And it cannot be claimed that this conduct is due to ignorance merely, or that it is the result of defective mental training. There are evidences in the record that the defendant is possessed of shrewdness, and that his education is not deficient. He is shown besides to be a man in easy circumstances, and he evidently was entitled to a leading position in the social circle of his neighborhood. When, therefore, we are considering the conduct of this man towards his wife and daughter, we are not to judge him by the same standard which might be applied in the case of persons differently taught and differently circumstanced, and with whom conduct equally rough and coarse might not appear so entirely incongruous. And in this connection it may not be out of place to mention his attempt, when a suspicion seems to have been excited, that the diseases under which they both labored were of a degrading character, to fix a charge of the origin of them upon her, notwithstanding there is not in the whole case a single breath of suspicion cast by any of the evidence upon her character for chastity. The attempt, unless well based, was a very heartless one, and if there was basis for it, no offer was made to show it.

A somewhat remarkable letter from the defendant to the complainant appears to have been written immediately after the commencement of this suit, which she has done well to produce in court, and which requires a brief consideration at our hands. The letter commences with a term of endearment, but immediately adds, “I have become thoroughly satisfied we must have a divorce; if you fail to obtain it, then I must do it.” It then proceeds to make her an offer of three thousand dollars, with the evident understanding that a divorce was to be assented to, and accompanies this with the statement that if he were compelled to give more, he should feel it his “duty” to deduct it from his daughter’s share of his property. He invites acceptance of his offer, and closes by saying that he has not the slightest feeling against her, but is only “grieved to the heart.”

Precisely what the purpose of this letter was, it is difficult to say. In view of his conduct and the answer of the defendant which he soon after filed, and which made specific charges of cruelty against his wife, we can give but limited credit to his expressions of kindness. If the letter was written in good faith with a view to an understanding for a divorce, it was reprehensible, as an attempted fraud upon the law. If it was not for that purpose, it must have been designed to obtain evidence with a view to defeat the present suit by showing collusion. And whether for the one purpose or the other, the attempt to coerce his wife’s action by the indirect threat to limit his bounty to their child, unless she accepted his offer, was in singular contradiction to the evidence of kindly feeling which his letter was probably designed to exhibit. We deem it proper to remark upon this document, as one upon which we can put no construction favorable to the defendant’s sense of justice and propriety.

Our conclusion upon the whole case is, that such a case has been made out as to warrant a divorce. The statute provides that the divorce may be decreed “ for the cause of extreme cruelty, whether practiced by personal violence or by any other means.” We are not required, therefore, to look solely at the violence employed by defendant, but in disposing of the case may properly have regard to the general result of his conduct. That conduct is properly to be characterized by the result which it has produced upon the marriage relation and upon the comfort of the complainant therein. A single act of causeless violence may be overlooked if its consequences are evanescent, and leave the relations of the parties substantially undisturbed; but a long continued course of conduct, which, without the fault of the wife, results in making the marriage relation unendurable, and in driving her from her husband’s house, is clearly, we think, a case of extreme cruelty within the meaning of the statute. In its effect upon the marriage relation, cruel conduct, which has effectually destroyed it, cannot be regarded as other than extreme.

The decree of the court below must be reversed, and a decree entered dissolving the bonds of matrimony in accordance with the prayer of the bill, and adjudging the custody of the daughter of the parties to the complainant. The cause will be remanded that there may be a reference to a Circuit Court Commissioner to take proof concerning the property of the defendant, and as to what would be a suitable allowance to the complainant by way of alimony, and that on the filing of his report, the proper order may be made by the Circuit Court in chancery in that regard. And the complainant is to recover costs of this Court and of the Court below to bé taxed.

The other Justices concurred.


author: Guayes, J.

text:
    Lydia B. Lee et al. v. Daniel Bolles et al.

      Pleading: Averment of joint undertaking. In an action upon a special agreement against two persons, the plaintiff cannot recover unless he avers and proves a joint undertaking! and in such an action evidence of an original contract signed hy one of the defendants, together with an agreement signed by the other “ to become security for the performance of the foregoing contract,” although alleged to have been simultaneously executed, was held inadmissible to prove a joint contract. Whether proof that both the original and the collateral undertaking were supported by the same consideration would render the undertaking joint; — Qucere.

      Heard January 6.

      Decided January 10.

    Error to Hillsdale Circuit.

      Assumpsit upon a special agreement. The plaintiffs, Lydia B. Lee and Helen M. Wilson, declared against Daniel Bolles and Christopher J. Dickerson, “For that whereas, heretofore, to wit: On the 15th day of September, A. D. 1868, at Hillsdale, in said County, by a certain agreement made by, and between the said plaintiffs and the said defendants, which said agreement is in the words and figures following, to wit: ‘ This agreement, made and entered into, this seventh day of September, A. D. 1868, between Daniel Bolles, of Hillsdale, Michigan, of the first part, and Lydia B. Lee and Helen M. Wilson, of the same place, of the. second part, witnesseth: That the said party of the first part, for and in consideration of the covenants and agreements hereinafter stipulated, to be kept and performed by the said parties of the second part, hereby covenants and agrees with the said parties of the second part, that he will move the double framed house,’ &c., [specifying the work to be done, the manner of doing it, and the amount to be paid by the parties of the second part.] “‘In witness whereof, we have hereunto placed our hands, the day and date aforesaid. (Signed) Lydia B. Lee, Helen M. Wilson, Daniel Bolles.’
    “ And the said plaintiffs aver that afterwards, to wit: On the 15th day of September, A. D. 1868, the said agreement was duly executed by the said plaintiffs and the defendant, Daniel Bolles, and that at the same time the said defendant, Christopher J. Dickerson, then and there executed and delivered to the said plaintiffs, a certain paper writing, in the words and figures following, to wit: ‘For value received, I hereby agree to become security for the performance of the foregoing contract by the said Daniel Bolles. September 15th, 1868. (Signed) C. J. Dickerson.’ And the said agreement executed by the said Lydia B. Lee and Helen M. Wilson, of the one part, and Daniel Bolles, party of the other part, and the said agreement executed by the said Christopher J. Dickerson, were all made at one and the same time by the said parties whose signatures are attached thereto, to wit: On the 15th day of September, A. D. 1868. Yet the said plaintiffs say, &c.,” — averring, readiness to perform on the part of the plaintiffs — and the breach on the part of the defendants.
    The defendants pleaded the general issue, with notice, &c.
    On the trial, the original contract, signed by the plaintiffs and Bolles, and the agreement, as stated in the declaration, signed by Dickerson were offered in evidence. The defendants objected that “ the paper is variant from the contract described in the declaration, and because the defendant, Christopher J. Dickerson, is not a joint contractor in said paper, nor an original maker, and cannot be sued with the defendant Daniel Bolles, he not being a joint contractor with the said Daniel Bolles.” The Circuit Judge sustained the objection and rejected the evidence as inadmissible, to which the plaintiffs excepted.
    The verdict having been found for the defendants, the judgment entered thereon is brought into this Court by writ of error.

      G. A. Knickerbocker and A, Dickerman, for plaintiffs in error.
    I. The undertaking of the defendant in error, Dickerson, by the terms of his agreement, is an original one and the action is properly brought against both defendants in error, Dickerson and' Bolles. Dickerson is a surety and not a guarantor. The terms surety and guarantor have acquired a fixed signification, and when used are decisive of the nature of the contract. To be security in a contract is equivalent to becoming a party to it m the character of a surety. Norris v. Spencer, 18 Maine, p. 824 p BurrilVs Law Dictionary — “ Security ; ” “ Guaranty.”

    In this case the language of the agreement of the defendant in error, Dickerson, is equivalent to his signing his name immediately under that of the defendant Bolles, and adding the word “ surety.” Norris v. Spencer, 18 Maine, 324; Hunt, Administrator, v. Adams, 5 Mass., 358.
      Dickerson’s agreement was contemporaneous with the contract signed by Bolles, and they are parts of the same transaction.
    II. The defendant in error, Dickerson, can make every defence in this suit, that he could have made, had an action been brought against him alone. As in case of recoupment, courts of law seek to avoid circuity of action and a multiplicity of suits, and in this suit the rights and equities of the parties could be much better settled in one suit than two. Norris v. Spencer, 18 Maine, 324; Allen v. Hubert, 49 Penn. St. 259.

      G. J. Dickerson and B. W. Ricdby, for defendants in error.
    The contract offered in evidence on the trial of this cause executed by the plaintiffs in error, and the defendant in error, Bolles, is not an original undertaking on-the part of the said Dickerson, but merely collateral. 2 Pars, on Gont. pp. 9, 12 ; Tilleston v. Nettlston, 6 Pick., 509; Nelson v. Boynton, 3 Met., 396; Tinker v. McCauley, 8 Mich., 180; Rapelye v. Bailey, 3 Conn., 438; 5 Conn., 149; Dale v. Young, 24 Pick., 250; Thaxton v. Bugbee, 5 Cush., 221; Bunt v. Horton, 1 Met., 24.

    The undertaking signed by the said defendant in error, Dickerson, is merely that of a guarantor, and he could not therefore be joined in a suit with the said Bolles.
    The agreement made and signed by the plaintiffs in error, and the defendant in error, Bolles, bears date on the 7th of September, and specifies clearly and distinctly what each party is to do. Although the agreement may not have been executed on the day it bears date, it should be treated as the agreement of the parties on the day it bears date, because they adopted that as the day of their agreement. It was clearly the intent of the parties to adopt the 7th and the 15th as the dates of the respective undertakings and therefore were not contemporaneous.
    The undertaking signed by Dickerson does not appear to be based upon tbe same consideration as the one signed by Bolles. The consideration upon which Bolles undertook to perform certain labor, was the payment of money. The words “for value received,” in the undertaking signed by Dickerson, seem to indicate a different and independent consideration from the one expressed in the agreement signed by Bolles; and the words “foregoing contract,” indicate clearly that the parties considered the undertakings separate and distinct from each other. Nelson v. Boynton, 3 Met., Bainridge, 6 Blackford, 12; Chitty on Contracts, p. 397.

   Guayes, J.

The plaintiffs in error sued the defendants jointly in assumpsit, and in stating their cause of action set forth an agreement in writing dated the seventh of September, 1868, between the defendant Bolles of the first part and the plaintiffs.of the second part, by which Bolles in consideration of the agreement by the plaintiffs to pay him a specified price promised the plaintiffs that he would, in a particular manner and by a specified time, remove a dwelling house, mentioned' in the agreement, and perform certain work upon and about said building. The declaration further set forth that such contract was executed on the 15 th of September, 1868, and that at such time the defendant Dickerson, executed and delivered to the plaintiff a certain paper writing in the words and figures following, that is to say: “For value received I hereby agree to become surety for the performance of the foregoing contract by the said Daniel Bolles. September 15 th, 1868. 0. J. Dickerson.”

The declaration then proceeded to aver a breach of the agreement, to perform the specified labor in and about the dwelling house, and claimed of the defendants a large amount of damages as resulting from such breach.

The defendants having pleaded the general issue, the parties went to trial before a jury.

The plaintiffs proved the execution of the two instruments set forth in the declaration, and that both were executed on the same day, and then offered them in evidence; but their introduction was resisted by defendants’ counsel on the ground, among others, that defendant, Dickerson, was not a joint contractor with defendant. Bolles, and that the defendants were not jointly liable. The Circuit Judge sustained the objection, and excluded the evidence, whereupon a verdict passed for defendants, and the question for us is whether this ruling of the Court helow was erroneous.

It is not deemed necessary to the determination of this question to discuss the distinction between the contracts of guarantee and suretyship, or to dwell upon the consequences flowing from such distinction. What we have to decide is, whether the plaintiffs by their declaration disclosed and set forth a joint undertaking on the part of defendants.

On a written agreement parties can only be sued in the manner in which they have made themselves liable, and whatever difficulty there is in ascertaining who are proper parties to be sued, must arise from an ambiguity in the writing. Barlour on Parties, j>. 118.

But whatever the difficulty in deciding who ought to be made parties, and who may be joined as defendants, it is incumbent upon the plaintiff, when he proceeds against two or more to show by his declaration that the defendants are jointly liable.

It is generally true that this will sufficiently appear when the declaration follows the words of the contract; but there are cases, and this appears to be one of them, where a simple transcription of the writings by the pleader will not suffice.

We think it was, at least, indispensable to a joint liability on the part of these defendants, that the two instruments signed by them respectively should not only have been contemporaneously executed, but that they should likewise have been made upon the same consideration. But whether the appearance of these requisites would have been sufficient to show a joint liability, is a matter on which we express no opinion.

The declaration avers that they were executed simultaneously, but it altogether omits to aver that the undertakings of defendants were upon the same consideration.

We cannot regard the acknowledgment of “value received]” in the instrument signed by Dickerson, as implying the same consideration for his promise, as that upon which the defendant Bolles undertook to perform the services specified in the other writing; and hence the declaration wholly fails in stating a 'cause of action against the defendants, involving a joint liability on their part.

We think, therefore, that the ruling of the Court below was right, and that the judgment should be affirmed with costs.

The other Justices concurred.


text:
    Samuel Slocomb v. Erastus Thatcher.

      Practice in the Circuit Court; Discontinuance, — rule and notice: Costs; Taxation and demand; Finding of the Circuit Judge. The entry of a rule in the common rule book to discontinue a suit, together with notice of the rule to the defendant, accompanied by an offer to pay costs when taxed, it not appearing that the costs had been taxed, is sufficient to justify a verdict for the plaintiff, in a suit brought upon the same cause of action, and in which the issue was joined upon a plea of another action pending.
    An error in a notice of a discontinuance of a suit — u discontinuing the same with costs to the plaintiff” — instead of defendant, is immaterial: as the statute gives costs to the defendant in all cases of discontinuance, the notice could not mislead.
    A plaintiff having entered a rule for the discontinuance of a suit, who should refuse to pay costs when taxed and demanded, will lose the benefit of his discontinuance ; and a second suit, commenced for the same cause of action, will be abated — the costs being still unpaid — by the first.
    A judgmeut will not be reversed because of the neglect of the Circuit Judge to make a written finding, when it appears that there was no evidence in the case tending to show a state of facts, which would make such finding material to the plaintiff in error.

      Heard January 7.

      Decided January 10.

      Case made from Saginaw Circuit.
    This was an action of assumpsit commenced on the 23d day of December, A. D. 1868, by declaration upon a promissory note. The defendant pleaded in abatement another action pending for the same cause, commenced on the 23d day of March, 1867. The plaintiff replied that the action first commenced had been discontinued on the 17th day of December, 1868. Issue was joined on the replication and on the trial the plaintiff proved that on the 17th of December, a rule was entered in the common rule book as follows:
    “Samuel Slocomb, v. Erastus Thatcher. On payment of costs and on motion of H. H. Hoyt, attorney for the plaintiff, ordered that this cause be and the same is hereby discontinued. — H. H. Hoyt, Plaintiff’s Attorney.”
    Dated and entered December 17, 1868.
    The counsel for the plaintiff introduced the said Herbert H. Hoyt as a witness, who was sworn, and by whose testimony it appeared that he served a notice of discontinuance of said former suit on the defendant before the commencement of this suit, and told him he was ready to pay the costs when taxed; that said costs in said former suit have not been paid; neither have they been tendered to said defendant, nor have said costs been taxed, and that he was willing to pay the costs when taxed.
    The defendant proved that on the same day that said notice was served and within one or two hours after the service of said notice, the declaration in this present suit was served upon the defendant. The notice was in the following words:
    . “ The Circuit Court for the County of Saginaw. Samuel Slocomb, v. Erastus Thatcher. Sir: Please to take notice that an order has been entered in the above entitled cause in the common rule book of this Court by the above named plaintiff discontinuing the same with the costs to the plaintiff. Yours, &c., H. H. Hoyt, Plaintiff’s Attorney.
    Dated, December 22, 1868.
    To E. Thatchur, Defendant in person.
    The cause was submitted to the Court for its decision, on the 25th of June, and without deciding said issue the Court adjourned until Saturday, June 26th, on which day, the Court found the said issue for the said plaintiff and rendered interlocutory judgment thereon, and the Court adjourned until Monday morning, June 28th.
    On Monday morning, and before the reading of the journal of June 26th, 1869, immediately on the opening of the Court, said defendant presented to said Court a request in writing that the Court specify the facts found and the conclusions of law thereon.
    The Circuit Judge ruled that said request came too late, as judgment had been rendered, and stated that its decision and judgment in said cause had been made and rendered on the Saturday previous; and refused for that reason to entertain said request. On the 29th day of June, the Court assessed the plaintiff’s damages and rendered judgment in favor of said plaintiff and against the said defendant for the sum of five hundred and seventy-eight dollars and thirty-five cents and costs, to be taxed: which judgment now comes into this Court by case made.

      H. II. Hoyt, for plaintiff.

      H. Thatcher, in person.
   Christiancy, J.

This is a case made after judgment for the plaintiff, in the Circuit Court for the County of Saginaw.

The declaration was in assumpsit; to which the defendant pleaded in abatement, another action pending in the same court for the same cause of ,- action. The plaintiff replied the discontinuance of the former suit prior to the institution of this, upon which the defendant, in his rejoinder, took issue and put himself upon the country.

This issue was tried without a jury; and being found against the defendant, judgment, quod recuperet, was rendered in favor of the plaintiff, June 26, 1869. On Monday morning, June 28th, before the reading of the journal, the defendant’s attorney filed a written request for a special finding of the facts and conclusions of law touching the questions involved in this issue. This was refused on the ground that judgment had been rendered on the Saturday previous, and that the request came too late. On the 29th day of June, the Court assessed the damages and rendered final judgment.

All the evidence on the trial of the issue tended to show the following state of facts, about which there appears to have been no dispute: — That six days prior to the present suit the following order was entered in the former suit in the common rule book, viz: ‘‘on payment of costs and on motion of H. H. Hoyt, attorney for plaintiff, ordered that this cause be, and the same is hereby discontinued,” (signed by plaintiff’s attorney). That said attorney for the plaintiff (in the former suit) served upon the defendant-a notice of the discontinuance on the day of, but before, the commencement of the present suit, which notice was in the usual and proper form, except that it stated the discontinuance by the plaintiff “with costs to the plaintiff.That at the time of the service of the notice, the attorney for the plaintiff told the defendant he was ready to pay the costs when taxed; that within two hours afterwards the declaration in this suit was served upon the defendant; that the costs in the former suit were not paid, nor did they appear to have been taxed, when the declaration in this suit was served.

It was insisted by the defendant in the Court below, and the same ground is relied upon here, that the former suit could not be legally discontinued, so as to permit the institution of the present action, until the costs had been actually paid in the former suit. And in support of the position, the defendant relies upon the Circuit Court rule 26 and section 5600 of the Compiled Laws.

If this be the true construction of the statute, and the rule referred to, then the plaintiff can never, in vacation at least, effectually discontinue his action, so as to enable him to institute a new one, except at the option of the defendant ; as he cannot get the defendant’s costs taxed, until the latter sees fit to present his bill for taxation.

But we think this is not the effect of the statute or the rule; but that both must be construed to authorize a discontinuance on the terms of paying costs; and that when notice of the discontinuance has been given, it becomes effectual, and the plaintiff may commence anew. If, however, he should refuse to pay the costs when taxed; he will lose the benefit of the discontinuance under the rule, and the pendency of the former suit will abate the latter; though under the statute alone, without the rule, a judgment would be rendered against the plaintiff in the former suit for costs.

As the statute gives costs to the defendant in all cases of discontinuance, the mistake in the notice of discontinuance “ with costs to the plaintiff” was immaterial. The law gave the costs to the defendant, and knowing the law, he could not be misled by the mistake.

There being no evidence in the case tending to show any other state of facts than that above given, no special, finding could have been made by the Judge, altering their legal effect as above given. Any special finding, therefore which the evidence could possibly warrant, could have been of no use to the defendant, and could not have altered the result. It is, therefore, immaterial to enquire whether the request for such finding was made in due time.

The judgment of the Circuit Court must be affirmed with costs.

The other Justices concurred.