text:
    Charles W. Stange v. John B. Wilson.

      Contract; Parol evidence: Reasonable time. Where a contract, for the performance of work in furnishing articles to be manufactured for a building, contained no time of performance, evidence that the parties agreed cotemporaneously, by parol, that they should be furnished at a certain time, is not admissible, as it would be varying the terms of the written contract.
    Where no time is fixed by a contract' for performance, the law implies that it is to be performed within a reasonable time, which must depend upon all the facts and circumstances, and not upon mere opinion or expectation.

      Beard October 9th.

      Decided October 14th.

    Error to Wayne Circuit.
    This was an action of assumpsit, brought to recover the value of certain iron work made under a contract.
    The declaration was upon the common counts.
    Judgment was-rendered for plaintiff.
    In the course of the plaintiff’s evidence, it appeared that said work was done under a special contract in writing, signed by both parties, and which was introduced. It was in the following words:
    “ This agreement, made this 18th day of September, 1866, between J. B. Wilson, iounder and machinist, of the City of Detroit, County of Wayne, State of Michigan, of the first part, and Charles Stange, of the same place, of the second part, witnesseth, ,
    1. The party of the first part, for himself, his heirs, executors and administrators, agrees to make, for the party of the second pait, all the iron work, consisting of wrought iron and cast iron, according to plans furnished by G. W. Lloyd, architect, for Detroit and Milwaukee Railway Depot, for and in consideration of the sum of $5,000.
    2. The party of the second part, for himself, his heirs, executors, administrators and assigns, agrees to pay to the party of the first part, “for the above mentioned articles,” the sum of $5,000, in the manner following, to wit: -
    In witness whereof the said parties have hereunto set their hands and seals, the day ancl year first above written.”
    The facts are slated in the opinion.

      Levi Bishop, for plaintiff in error.
    1. Tlae contract was evidently left incomplete by the parties. They begin to express the manner in which the payments for the work shall be made, and then fail to do so. These words can not be rejected, for in construing the contract the whole of it must be considered.— Chitty on Cont. 20; 2 Pars. on Cont. 501.

    This defect of the contract ought to have been supplied by averment and proof. If the mode of payment as understood and agreed had been, set out, it might have appeared that the payments were to be made in articles other than money, or that a credit was given which had not expired when the suit was brought, and therefore that the suit was premature. It is for the plaintiff to make out his case on the record and by proofs. It is quite likely that the plaintiff found himself embarrassed by the first proposition laid down by Mr. Greenleaf in 2 Greenlf. Ev. § 10L

    It was competent thus to remedy a defect, as an agreement may be partly in writing and partly by parol.— 2 Pars. on Cont. 492, note b; 16 Penn. 43; 5 Whart. 398; 3 M. and W. 402; 2 Dallas, 180.

    This involved the necessity of a special count in the declaration, setting the facts out fully. 'It seems that the plaintiff tried to avoid the production of his written instrument, and it only came out incidentally in the course of the trial. When it thus appears in the case, it shows that the plaintiff is not entitled to a judgment on the record as it stands.
    There appears to have been a blank left in the contract, which may and even must be supplied by parol, befoi’e the contract can be available.— Chitty on Cont. 25; 1 Phillips on Ev. 540; see also note 950 to same in vol. 8; is Mass. 158; 2 Dallas, 180.

    From the words used in the agreement there must have been a mode of payment intended, other than, immediately, iii money, when the work was done. That intent was for the jury to determine when the whole agreement and understanding, as shown by both verbal and written testimony, should be presented to them.— 3 M. and W. 403.

    2. The questions put to Chapaton and Noble ought to have been allowed. The court declare that the time for having the work done was fixed by the contract. On an inspection of the contract this appears not to be the case. The most that can be said is, that, as a conclusion of law, it was to be done in a -reasonable time. It could not be immediately, for the work had to be manufactured.
    We did not thus seek to vary or enlarge a written instrument; but an agreement being part in writing and part in parol, we sought to show the parol part. In such a -case, as I have argued, the who.le contract may be shown by both species of evidence, and then it is for the jury to determine from the whole evidence what the real bargain ivas. 5 Whart-. 5^8.

      3. Where no time within which work is to be done is expressed in a contract, the legal effect of the instrument is that it must be done in a reasonable time; and while we can not change the terms of the instrument by parol evidence, or alter its legal effect, the question as to what is the reasonable time under it must be determined by proofs almnde. That fact must be settled by testimony in pais— 2 Pars. on Cont. 551 and note e; 16 Pick. 227, 231; Moody and M. 300.

    4. The question of reasonable time being one to be settled by testimony, the contemporaneous declarations of both parties who understood the subject better than anybody else, and especially of the plaintiff himself, touching, that very time, if not evidence of a binding contract resting partly in parol, are certainly competent evidence as declarations and admissions of the parties bearing directly upon the question.
    5. In connection with the question of'time, the evidence offered was competent and very important as bearing on the question of damages. Having done the "work on á special agreement, but not in time, plaintiff was entitled to recover only the amount of benefit which, under all the circumstances, the defendant had received from the work done.— 2 Greenlf. Ev. § 104.

      Moore & Griffin, for defendant in error.
    1. The testimony offered by plaintiff in error was properly excluded.
    It was competent for either party to incorporate in their contract a limitation as to time. Not having done so, the law steps in and requires performance within a reasonable time. —11 Mich. 531.

    This case is clearly within the well established rule that parol evidence is not admissible to vary a written contract.
    2. A contract is not void by reason of the omission as" to time of performance or payment. The legal effect of the contract is, that the work shall be performed within a reasonable time, and payment made on delivery. — 7 Durnf. and East, 121; 1 East, 203; 13 Wend. 285; 1 Hill, 579.

    The contract was executed on the part of the plaintiff below, and he was entitled to recover under the common counts, the price stipulated. — 1 Doug. 513; 11 Wend. 417; 22 Id. 576; 2 Wall. 1.

   Campbell J.

"Wilson sued Stange for the value of certain iron work, which turned out on the trial to have been furnished under a written contract, containing only an agreement that Wilson should make “all the iron work, consisting of wrought and cast iron, according to plans furnished by C. W. Lloyd, architect, for Detroit and Milwaukee Railway Depot, for and in consideration of the sum of §5,0.00.” The time of furnishing the iron was not referred to, and the timé of payment was also left in blank. The only question properly presented by the record is, whether certain testimony was properly excluded, the defense resting on the claim that the work had not been furnished as soon as it ought to have been.

On the trial, the question was asked'on cross-examination of one of the plaintiff’s witnesses, “When the plaintiff had agreed to have said work done?” Another witness was asked on cross-examination, “Within what time it was that the plaintiff was to have the work in question done for the defendant?” Both of these questions were excluded, on the ground that parol proof could not be received, because the contract must speak for itself concerning the agreed time of performance.

The defendant below, in his defense, “offered to show by evidence that, at the time of making said written contract, it was agreed by parol that the work in question should be furnished by the plaintiff as fast as it might be required by the masons and carpenters, who should do the work on the building for which such work to be furnished by the plaintiff was intended; the defendant proposing, in making such offer, to follow up such evidence by testimony that the plaintiff had failed to furnish such work and materials a's so agreed, and failed to furnish them as fast as required by said masons and carpenters,” and to show consequent damage. This was also rejected.

It was claimed on the argument that this testimony was admissible on two grounds: First, To remedy a defect in the written agreement by parol; and, second, To show what was reasonable time.

There is no ground for maintaining that such proof is proper to complete or supplement the written agreement. It is very plain that an agreement to do a thing within a definite time can never be identical in spirit or substance with an agreement to do it within a time not fixed, and which in law is to be merely a reasonable time. And where the written contract is left in that indefinite shape, an agreement to make it definite is an agreement to alter it; and this can not be done by any contemporaneous parol understanding. The elementary' rule, excluding parol evidence offered for any such purpose, is so plainly applicable as to need no explanation.

There is much more plausibility in the second ground, which maintains the admissibility of the evidence as bearing on the question of reasonable time. But it seems to me that it has no real tendency- to show what time was reasonable, either alone, or as a step in natural connection with any other proof, proposed or relevant.

The supplemental proof, which the defendant below proposed to introduce, was simply proof of a breach of this parol agreement, in not furnishing articles within the time as promised. That proof was undoubtedly competent to prove damages in case the court should find that it was unreasonable not to furnish the iron as fast as required by the workmen, but it could have no possible bearing on the reasonableness of their requisitions. Unless the proof of the parol agreement being made tended, to prove of itself that the time thus fixed Avas reasonable, independent of any binding force in the agreement, it Avas rightly ruled out.

It Avas argued that it had this tendency, because the fact that the parties were willing to agree upon such terms sliows they must have thought them reasonable. This is in fact claiming for the parol communications the full force of an agreement; and it would be a fair answer to such a claim to say, that, inasmuch as when they made their written agreement, by which only they were to be bound, they omitted this clause from it, it must follow that they were not willing to agree that it would be reasonable. And this is really the defect in the claim, that it confounds causes with consequences. If time is reasonable, it is because circumstances make it so, and not because it is so agreed; and if parties agree that it is reasonable, it must be presumed that they are so persuaded by the circumstances, which can not derive any force or bearing from their opinions, whether one way or the other.

When a contract is to be performed within a reasonable time, the law implies that the parties contract in view of all the pertinent facts that may be mutually known to them, and it requires them to exercise such reasonable diligence as under all then and subsequently existing circumstances might be fairly expected. . When a court or jury is called upon to decide whether they have complied with what might have been reasonably expected, there must be proof of such facts as will show what ought to have been done. Where there has been an agreement, it must be complied with, whether reasonable or not, simply because the parties for a lawful consideration have seen fit- to make it. But where the promise made is no promise in law, it must be regarded as a nullity. To accept it in any shape as a basis or proof of obligation is to enforce it. TJpon the theory of this defense, if Stange had sued Wilson for not furnishing his iron in time, and this proof should be received as tending to fix that time, it would require counter - proof to prevent him from having the same benefit as if the parol agreement had been contained in the written. But the rule of law, which excludes parol evidence of agreements where there are writings, does so on the express ground that it must be presumed the writing contains all the parties were willing to adhere to. And it certainly seems unreasonable to allow, in the face of such a rule, any inference whatever that they were willing to adhere to anything else. And to prove, when a reasonable time is agreed upon, that at the same time it was understood what time would be reasonable, is equivalent to proving they agreed on that time either absolutely or conditionally, but it is no proof whatever of the only important point, which is whether the time was really reasonable. Opinions are excluded from evidence because they are conclusions which the court or jury are to draw for themselves. They are not usually binding upon parties even when distinctly expressed during negotiations, and are never binding unless when it is understood they are to be acted upon by one who expressly relies -upon the greater knowledge of the other. In other words, they are only binding when the expression of an opinion is equivalent to the assertion of a fact. But in this case a fact is sought to be deduced from an opinion, when the existence of the opinion itself is only inferred from an agreement, and when the agreement is void. If it is said the inference should be that what parties are willing to agree upon is reasonable, it is quite as likely, and is an absolute legal presumption, that when parties express their agreements in writing, their minds have settled down upon nothing material which is not in the contract. But inasmuch as unreasonableness is no answer to a contract, the objection becomes still more conclusive that no presumption can be predicated on what parties voluntarily omit to agree upon. An expressed opinion, upon which parties decline to act, would be an unsafe ground to rest upon as proof of a fact; but where fact and opinion are both implied from a proposition which the parties do not accept as binding, the inferences become too remote to fall within any safe rule of evidence. It must be remembered also, that proof that a party thought a certain time unreasonable would have no tendency in law to prove it, and affirmative proof that no time was even spoken of would not exonerate plaintiff if he did not act with proper diligence.

The only case which I have met with which appears to hold that such proof as was here offered tends, by showing what the parties thought, to prove what would be reasonable, is Cocker v. Franklin Manuf. Co. 3 Sumner, 530. The facts are not given so as to show very clearly how far the case is like this, but it would seem, from the language of Judge Story, to have been analogous. It was, however, a nisi prius ruling in a charge to a jury who disagreed, so that it never came up for deliberate review; and the only authority it purports to rely upon is Ellis v. Thompson, 3 Mees. and W. 445 which rests upon entirely different ’ principles, and which announces the true doctrine, that the facts on which the parties acted, and the assertions of one concerning the existence of facts on which the other relied, may always be shown to explain their conduct and to show the basis of their action. Proof of facts is a very different thing from proof of promises. A misrepresentation of material facts is a fraud. A broken promise can only be ground of redress when in the shape of a binding agreement.

On the other hand, this doctrine is opposed, not only by the principles underlying the rejection' of parol evidence to affect written contracts, but also by some cases, at least, which resemble this quite closely, although not absolutely parallel. In Greaves v. Ashlin, 3 Campb. 426, it was held that where a contract was silent as to the'time of delivery, evidence of a parol agreement to take the property at once, was inadmissible. Where articles are actually ready for delivery, a court certainly could not say there would, as matter of law, be anything unreasonable in immediate delivery, and the promise, therefore, was just as pertinent in that case as in this. In Simpson v. Henderson, Moo. and M. 300, a very similar principle was involved, and a similar conclusion was reached. In Lafarge v. Rickert, 5 Wend. 187, it was held that, where a contract was silent as to place of delivery, proof by parol of an agreed place was improper. In Williams v. Jones, 5 B. and Cr. 108, where an agreement by an attorney to take another into partnership mentioned no time for so doing, parol evidence that he was not then admitted, and that nothing was done till his admission, was rejected, although the effect was to render the written contract illegal.

There is in none of these cases, nor in any others that I have found (except the case in 3d Sumner), any intimation that - the proof, which was not valid to prove new terms to an agreement, was valid to affect it indirectly, by raising presumptions concerning tbe belief or expectation of the parties. It is hardly possible that such a use of testimony would have eluded the ingenuity of so many learned courts and counsel, if it is really admissible. And if such proof is to be received, it is manifest that the rule excluding parol evidence will become very difficult and uncertain in its application, if not entirely useless. The distinction is too refined to be safe, and the presumption required too remote and contingent to furnish any substantial foundation for legal judgment.

I think there is no error in the record, and that the judgment should be affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Christiancy J. Campbell J.

license: Public Domain

text:
    James H. Hogsett v. Charles Ellis.

      Misjoinder: Judgments. Under the statute — Comp. L. $U550 — it is not misjoinder to include in a declaration a count upon a judgment with counts for use and occupation, and the common counts.

      Misjoinder: Ruling of court: Waiver. Where a party to a suit, on his own motion, discontinues as to certain counts in his declaration, by reason of a ruling of the court against him on the ground of misjoinder, he will he held to have waived any objection to such ruling.
    Novation: Statute of Frauds. Where the tenant of a^mortgagor verbally agreed (with his consent) to pay rent to the mortgagee, and that the latter should indorse the same upon the debt, he not having released or agreed to discharge any part thereof, Held, That the agreement did not amount to a novation, and that the promise of the defendant (tenant) was to answer for the debt of another, and, therefore, void, not being in writing.

      Landlord and tenant: Attornment: Rent: Mortgagee. Where the tenant of a mortgagor entered subsequent to the mortgage^ the mortgagee can not recover rent of the tenant without an actual attornment to him, even where the mortgage is recognized as the conveyance of a title; but. even if the agreement in this case would constitute an attornment at common law, the legal notion of attornment can have no application as between the mortgagee and the tenant of the mort gagor, under the laws of this state.

      Foreclosure: Title of Mortgagee: Sale. A mortgage in this state conveys no title to the mortgagee, and gives no right of possession, without foreclosure; until then it constitutes only a lien as security for the debt. As purchaser under the foreclosure sale, he stands in the same position as any other purchaser.

      Contract: Forfeiture: Notice: Rent. Where parties, claiming to hold land by virtue of a contract of purchase, have failed to comply with its conditions, they are, as between themselves and the owner, tenants at will, but not liable for rent while the contract is open and no notice to quit or pay rent, or of any intention to forfeit has been given. A sale of the premises to third parties would not of itself determine the tenancy. Under our statute, notice is required. — Gcm\p. L. § %807.

      Notice to quit: Tenant: Forfeiture. Notice to quit was served by the purchaser of premises upon the tenant in possession. It appeared that the tenant’s lessor had long been in default in performing the conditions of a contract of purchase with the former owner; and that he had left the country: HelcL^ good service.

      Held further^ that the notice and demand of possession operated as an assertion of the intention to forfeit, as well as a notice to quit.

      Assumpsit: Adverse title: Use and occupation. Assumpsit for use and occupation can not he maintained when the relation of landlord and tenant did not exist during the occupancy, or when the holding has been adverse to the owner.
    A disputed title can not he tried in an action of assumpsit. But where the relation exists, and the occupancy has been beneficial to the defendant, the law implies a promise to pay a reasonable compensation, unless there he an express contract, or other circumstances inconsistent with such promise or with the duty to pay.

      Tenant at Sufferance. At common law a tenant at sufferance was not liable for rent as such; but after the rightful estate is terminated, and the landlord gives the tenant notice to quit, and demands possession, ho may recover a reasonable compensation for use and occupation-subsequent to the expiration of said notice.

      Notice to quit: Tenancy at will: Use and occupation. Where a fourteen days notice to quit was given by a purchaser of certain premises to a person claiming to hold them as a tenant of one who claimed them by virtue of a contract of purchase from a prior owner; held, that a reasonable compensation might be received for the use of the premises after the expiration of the fourteen days, hut that the notice could only operate to determine the tenancy at will at the end of three months, under the statute. '

      tenancy: Adverse title, evidence of. To disprove the existence of the relation of landlord and tenant, defendant sought to show, by the person who served the notice to quit upon him, that he informed him at the time that he was the owner of the premises; held, that as this person had no authority from plaintiff beyond the mere delivery of the notice, evidence of any conversation not relating to the mode of service was incompetent, not being res gestee. A tenant remaining quietly in possession can not render his holding adverse, by a mere silent determination of his own mind, so as to avoid a liability for the use of the premises.

      Adverse title, evidence of. Por the purpose of showing defendant’s claim of title, he was asked how he claimed to occupy the premises, to which he replied: “I considered it mine.” Helds that this was error. It was the mere opinion of the witness, or at most a declaration in his own favor; and not evidence from which the jury could determine the fact.

      Adverse possession: Justice's docket: Proof of loss: Statute of Frauds. To prove adverse possession, defendant showed that the house upon the premises had been levied upon (as personal property by a verbal agreement with his grantor) under an execution upon a justice’s judgment in attachment against his grantor, and that he had bought it in. He thereupon introduced the justice’s docket, which showed a judgment, but no affidavit or bond: also that an execution had been issued, but did not show whether it had been returned: neither the affidavit, the bond, nor any of the files were produced, but parol testimony was introduced as to their contents, without any proof of proper search for them.
    Held, that without this search the loss ol the papers was not sufficiently shown to admit parol evidence of their contents.

      Held further, that it was error to submit to the jury to find from said evidence any such agreement; that as the house so levied upon had been placed upon the lot, in pursuance of the requirement of a prior contract of purchase, it thereby became a part of the realty, and that a verbal agreement that it might be levied upon by the constable, without any evidence of part performance, would not take it out of the statute.

      Heard July 9th and 10th.

      Decided October 14th.

    Error to Kalamazoo Circuit.
    This was an action of assumpsit, brought to recover the value -of the rent of certain property, and also the amount due upon several judgments.
    The declaration contained the common counts and several special counts.
    The facts are stated in the opinion.
    Judgment was rendered for the defendant.

      T. R. Sherwood, and Stuart, Mlwards and May, for plaintiff in error.
    1. There was no misjoinder of counts in the declaration.
    The counts were all properly laid in assumpsit.

      a. This form of action lies for use and occupation at common law.— 3 Mich. 566; 4 Day, 228; 4 Met. 227.

      1. It lies upon judgment by our statute. — 2 Gomp. L. § 1552.

      c. It was error for the court to compel the plaintiff to elect and abandon his other counts. And the error was not waived by his withdrawing the abandoned counts, after ruling of the court, exception taken and election made.— 6 Ind. 487; 12 Id. 20; 15 Id. 23.

    2. The statements of defendant to Constable Eislier at the time he served the notice to quit, were not proper cross-examination, or relevant; no conversation with defendant having been alluded to in his direct examination. The constable was only tbe agent of the plaintiff to hand to defendant the notice.— 6 Bosw. 229, 313; 32 N. H. 358; 4 Ia. 477; 5 Cal. 450; 25 Id. 212; 17 Wis. 477; 16 Ala. 526; 4 Harris, 307; 3 Iredell, 210; 4 Id. 282; 5 Miss. 480; 14 Me. 271; 2 Foster, 480; 8 Allen, 100; 24 Pick. 242.

    3. The testimony of Ellis, as to how he claimed to occupy the property, was immaterial, and erroneously admitted. How he did occupy, was one of the questions to be determined by the jury upon the law and facts in the case. This testimony could hardly fail to mislead the jury. — 32 Me. 521.

    4. The testimony of Bennett and Smith of the loss of files in the Justice Court, in case of Allen v. Shaw, was insufficient to admit of parol evidence of their contents, the proper search not having been made. — 1 Mich. 428; 6 Ind. 485; 33 Barb. 323; 16 Johns. 193.

      a. The docket of the justice, and the files in the case, if produced and valid, were irrelevant and inadmissible. — 6 Hill, 292.

      b. The pretended judgment in the case is a nullity. It does not show the mames of the parties in the case; it does not appear that the justice acquired jurisdiction of the person of the defendant, or of the subject matter of the suit. 2 Comp. L. §§ 8679, 8680, 3890, 8711; 32 Conn. 103; 1 Doug. Mich. 502; 8 Mich. 493.

      Arthur Brown, for defendant in error.
    1. After defendant has entered under a contract of purchase he can not be liable to an action for use and occupation until evidence is produced of a new agreement between the parties.— 3 Mich. 566; 11 Vt. 190; 30 Id. 759; 32 Id. 551; 6 Johns. 46; 7 Pick. 301; 11 Id. 1; 14 Id. 555.

    Assumpsit for use and occupation can be brought only where the conventional relation of landlord and tenant exists between the parties, and not where it exists by operation of law. — 31 Barb. 286.

      The mortgage given by- Shaw to plaintiff gave him no additional rights, as, under the statute in our state, the mortgagee is, not entitled to possession, or to rents and profits, until foreclosure.— Comp. L. § 4614; 12 Mich. 270; 13 Id. 23.

    The mortgage is a real estate mortgage, although made by one holding a quasi chattel interest, and is therefore governed by the principles above laid down applicable to real estate mortgages. — 7 Mich. 9 Id. 246; 8 Met. 19.

    The agreement sworn to by the witness, Myers, whereby Ellis agreed with Shaw to pay plaintiff the rent which should become due to Shaw, was not an .agreement upon which Hogsett could sue, as he was a third party to the contract, and could not sue upon it, although for his benefit, unless the consideration moved from him.— 1 Gray, 321; 3 Id. 486; 6 Id. 66; 7 Id. 201; 13 Id. 66; 10 Mich. 426, 431; 14 Id. 496.

    Nor is there any novation in this case; novation exists only where there is an entire change of the original rights and liabilities of the parties to it.
    There must be a complete discharge of the principal debtor and an acceptance of defendant as debtor and an agreement on the part of defendant to pay a particular debt. — 1 Pars. on Cont. 189, notes and cases; 7 N. H. 345.

    Therefore, resting the case solely on the evidence on the part of plaintiff, together with some facts introduced on the part of defendant not in dispute, the plaintiff had no right to recover, and can claim nothing from any errors in the introduction of evidence on the part of defendants, if there were any.

      2. The plaintiff having withdrawn his counts on the judgments the suit is discontinued as to them, and he can not now ask this court to review the decision of the Circuit Court in ruling on the misjoinder of the counts for use and occupation, with those on the judgments.— Hilliard on New

      Trials, 581; 7 Har. & J. 251; 2 Wend. 137; 9 Id. 548; 1 Comst. 125; 1 Cow. 709; 42 N. H. 114

    Having accepted the • benefits of the ruling, by asking and obtaining leave to make the amendment, and by acting under it, he can not now be permitted to question its legality.— 7 Paige Ch. 165.

    There is nothing in the record of the present case to prevent another action being at once brought on the judgments. This action could not be pleaded in bar to such suit, as the suit on judgment is discontinued.
    By striking out the counts on judgment, the declaration stands as if it had never contained those counts.— 4 Mass. 146; 9 Cush. 266.

    An action for use and occupation, is one for unliquidated damages, and can not be joined with an action on judgment, the proper action on judgment being debt.
    A statutory can not be joined with a common law action — 1 Doug. 434, (447) — and such misjoinder may be taken advantage of on trial or writ of error, as well as on demurrer.— 16 Johns. 147; 1 Chitty, 205-6; 9 Blackf. 158.

    3. The court permitted to be given in evidence the declarations of defendant made at the time of service on him, by Fisher, the constable, acting as agent of plaintiff, of an ordinary notice to quit, in which plaintiff assumed to be landlord, and that defendant was his tenant.
    Defendant claims that the testimony was admissible on two grounds.

      a. The declaration was part of the res gestes of the circumstances of receiving the note from Fisher, disclaiming the implication conveyed by the notice that he was the tenant of plaintiff, otherwise a silent acquiescence in receiving such a notice might raise a presumption that defendant conceded himself to be the tenant of plaintiff. — 3 Lead. Cas. in Eq. 62, (447).

    To make a declaration evidence, it is not necessary that the person making it should himself be doing some positive act; if he is acted upon, it is a sufficient circumstance — 8 Mich; 1 Greenlf. on Ev. § 108, a; 11 Pick. 362; 6 Wis. 232.

      b. This declaration is also admissible, as explaining the act of possession.— 8 Allen, 24; 1 Greenlf. on Ev. % 109.

    4. Exception is made to the question propounded to defendant, “How did you claim to occupy the property?” referring to the time at which plaintiff settled all claims with defendant and deeded the property to him. To which the witness replied, “I considered it mine.” This was proper evidence.
    The question is proper, as it illustrates the position of the parties at the time of settlement. If he barely asserted a claim of ownership, it is sufficient to become the basis of a settlement, and parol testimony, showing such claim, may be introduced for that purpose.
    It is also admissible, on grounds above considered, for the purpose of rebutting any implication that- the relation of landlord and tenant existed by agreement between the parties, and to show that defendant considered the contract of purchase still in force.
    5. Other exceptions of counsel for plaintiff relate to the admission of the judgment and execution on the docket of Bildad Bennett, whereby defendant claims he acquired a title to the house and lot upon this land as chattel property, distinct from the freehold, by virtue of an execution against John H. Shaw.
    Could the defendant thus acquire the interest of John H. Shaw in the house?
    There is testimony showing that the house was erected on blocks and loosely secured to the ground; that the building was erected by Ellis, and by him sold to Shaw. It was not the building erected on the lot in pursuance of the agreement to purchase. And being the property of Shaw, it was a fixture, and liable to levy and sale as a chattel.— 20 Johns. 29; 20 N. Y. 344; 33 Barb. 410; 13 Mich. 23.

      The intent of the party erecting and owning, in the absence of any agreement will always determine the nature of the building, whether chattel or real. —18 N. Y. 28.

    The nature of the building was properly left to the jury by the charge of the court.
    The tenant may always acquire the title of the landlord subsequent to the demise.— 5 Denio, 430; 6 Wend. 666; 22 Id. 121.

    It is only adverse titles that he is estopped from setting .up.— 1 Washb. on Real Property, 358, 360.

    ' 6. There was sufficient evidence of the loss of the files in the case of Allen v. Shaw.

    The justice who issued, and first had control of them, testifies that he had searched his office for them, and they are not there. His ■ successor is very certain that he 'never received the files from his predecessor, and is certain there are no such files in his office.
    The evidence was a question of fact for the court upon which to determine the loss of the papers, and was amply sufficient.— 1 Greenlf. Ev. § 558; 30 Barb. 72; 33 Id. 323; 16 Johns. 193; 1 Sandf. Ch. 34; Starkie an Ev. (Phil. Ed.) 686; 4 Mich. 496.

    7. The agreement to sell the land by contract or sever the house, could have been made by Dykeman, in behalf of the firm he represented; and it is in testimony, both on his part and on the part of defendant that Dykeman had special authority from his firm to make any contract in regard to the land.
    The authority to sell the land need not be in writing 6 Hill, 107 — but may- be inferred from the relation of the parties.— 2 Comst. 431.

    It has long been an elementary principle that real estate so held by a partnership may be treated and dealt with as personal property. — 24 N. Y. 442
    8. The doctrine of attornment has long ceased to have •any existence in this staie. When the mortgagee ceased to have any right to the possession under our statute, the last vestiges of any right to deal with the tenant of mortgagor, on more favorable terms than other creditors, were, by virtue of that statute, taken from the mortgagee.— Taylor on L. and T. § 629; Mich, cases above cited.

    Notice to defendant of plaintiff’s interest could not affect him.
    Defendant himself was the equitable owner of the land by virtue of a contract which had never been declared void, and which defendants stood ready at all times to fulfill.
    A notice to. quit could be of no effect until there had been a prior forfeiture of the contract by some act of the parties.— 7 Mich. 405; 8 Id. 312, 463; 9 Id. 253; 14 Id. 109.

    A notice of forfeiture and demand of payment should have preceded the notice to quit.
   Christiancy J.

The plaintiff in error brought his action of assumpsit against the defendant in a Justice’s Court, where the plaintiff obtained a judgment, which was taken by appeal to the Circuit Court, where new or amended pleadings were filed; plaintiff declaring on the common counts ; a count for use and occupation of a house and lot; a count upon a special contract to pay rent; another on a special contract for the purchase, by the defendant, of a house and lot upon which a balance was claimed; and two coixnts upon separate judgments alleged to have been theretofore recovered by the plaintiff against the defendant in a Justice’s Court.

The plea was the general issue, with a notice which is not important to be considered here.

On the trial in the Circuit, upon the plaintiff’s offering evidence in support of his action, the defendant objected to the introduction of any evidence under the declaration on the ground of misjoinder, claiming that counts upon judgments could not be joined with the other causes of action. The court sustained "this objection, but gave the plaintiff leave to elect upon which he would go to trial.

Plaintiff’s counsel excepted to this ruling,- but elected to proceed upon the other counts, “and ashed leave to discontinue as to the counts upon judgment, and to withdraw the same from the consideration of the court and jury.” This was granted, and thereupon the trial proceeded for the causes of action in the remaining counts.

This ruling of the court is now assigned for error.

We are inclined to think the court erred in this ruling, and that the objection for misjoinder can not be sustained, since the statute — Comp. L. %4J550 — allowing assumpsit to be brought upon judgments and specialties — see 1 Chitty’s Pl. pp. 228 to 230, and authorities there cited; People ex rel. Drew v. Circuit Court, 1 Doug. Mich. 434— is no authority for the general proposition that a statutory, can not be joined with a common law action. The action in that case was a penal action brought upon .a statute upon whiek alone the whole cause of action rested. The question was one of amendment. Though the language used is very broad, it must be confined to the facts of that case, which did not call for decision of so broad a proposition. In the present case, it is .not the right, but merely the form of this action which depends upon the statute.

But we are not under the necessity of deciding upon this question of misjoinder, as we are all of opinion that the plaintiff, on- his own motion, having discontinued as to the counts upon judgment, waived any objection to the ruling on the ground of the misjoinder. The counts upon the judgment were, in effect, stricken from the declaration, at his own request. A reversal of the judgment here would - not replace them.

Had the plaintiff, under the constraint of this adverse ruling, merely elected to proceed with the remaining causes of action, the result might have been different.

The other questions in the case arise under the count on the special contract to pay rent, and that for use and occupation.

The evidence tended to show that Robinson, Duncan and Dykeman, being the owners of the fee, in 1857 or 1858 made a verbal contract with defendant, Ellis, for the sale of the lot in question to him for $125, payable in one year, Ellis agreeing to build a house on the lot within the year; that Ellis went into possession, and, in part performance of the contract, built the house, but paid nothing on the purchase money; that he occupied the premises and lived in the house 'a year or more, and then made a verbal sale of his interest in the contract to one Shaw, who, with the assent of Robinson, Duncan' and Dykeman, took Ellis’ place in the contract, the time originally fixed for payment having then expired, but the vendors not having insisted upon payment, and allowed it to run without fixing any particular time; that Shaw went into possession of the house and lot and remained till some time in 1861, when he left, having paid nothing on the purchase money; but while in possession, on the 28th of September, 1860, he borrowed of the plaintiff $120, and gave. a note, secured by his mortgage upon the premises, payable in one year, telling the plaintiff he had a paid up contract for the premises; that plaintiff shortly after learned the true state of the title, and that nothing had been paid; that when, or soon after, Shaw left, he rented the premises to Ellis, the defendant, at $1.25 per week, who was to pay the rent to one Myers, the agent of Shaw, to be paid by Myers to plaintiff on Shaw’s indebtedness to the latter; that defendant went into possession under this agreement; that afterwards (after some rent had become due) Shaw, Ellis and the plaintiff all met, and it was mutually, though verbally, agreed between them that Ellis (defendant) should pay the rent to the plaintiff, aucl the latter should indorse it, when paid, upon the indebtedness of Shaw to the plaintiff (there was some evidence tending to show that Ellis knew of the mortgage); that plaintiff did not release, nor agree to discharge, any part of Shaw’s indebtedness to him, but ouly to indorse it when it should be paid.; that Robinson, Duncan and Dykeman (though nothing had ever been paid them) had taken no steps to forfeit the contract, but that in May, 1862, Robinson and Dykeman, with the heirs, of Duncan, sold and conveyed the premises to the plaintiff, the defendant being still in possession, never having paid any rent; that twelve days after this conveyance (May 18, 1863), the plaintiff served upon the defendant a written notice or demand for the defendant to leave and surrender up the premises to him within fourteen days. This notice was served on the defendant by one Eisher, who does not appear to have been employed, or to have had authority for any other purpose than to deliver the paper to defendant. Finally, in April, 1864:, the house and lot was sold by the plaintiff to the defendant, who still remained in possession.

Upon this statement of facts, the first question is, whether the action could be maintained by the plaintiff upon the express verbal contract to pay rent?

And we see no ground upon which the action could be maintained upon it, unless, as claimed by the plaintiff, the agreement (being made between Shaw, the lessor and mortgagor, the defendant as lessee, and the plaintiff as mortgagee) operated as an attornment of the defendant to the plaintiff — a question we shall presently consider. This agreement did not amount to' a novation, as the plaintiff did not release or give up any part of his claim against Shaw, who still remained liable for the Avhole. The defendant’s promise, therefore (to say nothing of any other objection), was purely collateral, “to answer for the debt” of Shaw, and therefore void under the Statute of Frauds.

The letting, by the mortgagor to the defendant, having been subsequent to the mortgage, the plaintiff could not, as mortgagee, recover rent of the defendant without an actual attornment to him, even where the mortgage is recognized as the conveyance of a title.— Evans v. Elliot, 9 Ad. and El. 342; Alchorne v. Gomme, 2 Bing. 54; McKircher v. Hawley, 16 Johns. 288; Jones v. Clark, 20 Id. 50.

But admitting (which I think there is much reason to doubt) that the verbal arrangement between Shaw and the plaintiff and defendant, in reference to the rent, would have constituted an attornment, where, as under the old common law, a mortgage was recognized as a conveyance of the title, giving a right of possession to the mortgagee; I do not think the legal notion of attornment can have any proper application as between the mortgagee and the tenant of the mortgagor under the laws of this state.

A mortgage here conveys no title to the mortgagee, without foreclosure and sale. Until such foreclosure and sale, it constitutes only a lien as security for the debt.— Dougherty v. Randall, 3 Mich. 581; Caruthers v. Humphrey, 12 Id. 270; Ladue v. D. and M. R. R. Co. 13 Id. 380; Van Husen v. Kanouse, Id. 303. And since the statute of 1843 Gom.p. L. —-the mortgage gives no right of possession until foreclosure and sale.— Baker v. Pierson, 5 Mich. 456; Crippen v. Morrison, 13 Id. 23. As a purchaser under the foreclosure sale he stands in the same position as any other purchaser.

Such being the condition of the mortgagee, before he becomes a purchaser at the forclosure sale, I am at a loss to perceive how his position gives him any more right or capacity for receiving an attornment from the tenant of the mortgagor, than a judgment creditor would have, where a judgment is a lien, to receive an attornment from the tenant of the judgment debtor.

Nor do I perceive how the agreement between Shaw and the plaintiff and defendant stands upon any different principle, or gives any greater rights than it would if the plaintiff lfad held Shaw’s note without the mortgage.

If it be said that, though the mortgage does not give the mortgagee the right to possession against the will of the mortgagor, yet, by the consent of the mortgagor and the tenant, he may be let into possession, and thus acquire the right to rent; so, I reply, may any other person not holding a mortgage acquire, in the same way, the right to possession, and the right to rent, by any valid agreement to that effect. But, in both cases alike, I think it would depend upon the contract as such, which might be made between them, and not upon the doctrine of attornment. If the nature of the agreement requires it to be in writing, under the Statute of Frauds in the one case, it must, I think, equally require it in the other.

Where the mortgage is recognized as conveying the fee or reversion (the title of the lessor or some less estate carved out of it) there, especially when it gives the right of possession also, there is something to rest an attornment upon. But, without this, I see no basis upon which an attornment can rest. See Co. Lit. (by Thomas) Vol. 2, pp. 356 to 400; 2 Bl. Com. 288, 290, and note; 2 Greenlf. Gr. 84, and note.

The charge requested on this point was, therefore, properly refused, and the charge given was, in this respect, sufficiently favorable to the plaintiff.

The remaining questions arise under the count for use and occupation. And it may aid us in the proper understanding of these questions, first, to determine what, upon the state of facts already given, were the legal rights and relations of the parties at the time the plaintiff obtained his title, and what rights he thereby acquired.

ITp to this time, the defendant first, and then Shaw, who took his place and whose tenant he afterwards became, were in possession under an agreement to purchase, which, though never performed by payment of the purchase money, had never been forfeited and was still open. This agreement, being verbal, was void at law under the Statute o! Frauds, and gave no legal rights in the property; but, being partly performed, might, on the one hand, in a court of equity have been enforced by Shaw, on his making payment, and a legal title have been thereby acquired; while, on the other hand, Robinson, Duncan, and Dykeman, might at law have treated the contract as void, unless restrained by a court of equity, or they might have proceeded to forfeit it for non-payment, so as to cut off any equitable rights of Shaw, growing out of the part performance. But they could not treat it as thus forfeited without giving reasonable notice, or in some way indicating their intention to assert their rights to the property in some manner inconsistent with the further continuance of the contract. And whenever they should give the notice or assert such right, Shaw could only prevent the forfeiture and preserve his equitable rights by offering, within a reasonable time, to pay the purchase money. But if he made no such offer within a reasonable time, and especially if he did not offer to perform at all, then, after a reasonable time for such performance had elapsed, the forfeiture would take effect, and a court of equity would not interfere.

In fact, if this were not an equitable action — one in which the promise to pay can be raised or implied only from such a state of facts and circumstances as render it just and equitable between the parties that such payment should be made — I should have some doubt whether, in this action at law, we could notice the merely equitable rights growing out of this partly performed verbal contract, without the decree of a court of equity establishing the right.

But all parties holding under this contract of purchase were, as between them and the owners, tenants at will of the latter, but not liable for rent while the contract remained open, and no notice to quit or pay rent, or of an intention to forfeit, had been given.— Dwight v. Cutler, 3 Mich. 566.

At common law, the sale by the former owners to the plaintiff would, of itself, have determined the tenancy at will.— Go. IA.t. 55 (b.) 57 (a.); 1 Washb. R. Pr. 385. But under our statute — Comp. L. § 2807 — notice would seem to be required.

The plaintiff, as well as all the other parties, being aware of the contract and the state of the title when he purchased, took the property subject to the same equities to which it was subject in the hands of the grantors.

The notice to quit, given by the plaintiff to the defendant, containing a demand of the possession, was, I think, properly served upon the defendant, who was the tenant in possession' under Shaw. The latter having been long in default, having left the country, and, so far as appears, his residence being unknown, must be considered as assenting that in all matters growing out of this contract, or connected with the possession of the property, the owners might look to the tenant in possession as standing in his right. And the owner could not reasonably be compelled to let this contract remain open and lay out of the use of the property for an indefinite period of time, until Shaw could be found, and the possession demanded of him personally.

The notice and demand of possession served upon the defendant operated, I think, both as an assertion of the intention to forfeit the contract and as a notice to quit.

Though the notice demanded possession in fourteen days, it could only operate, under the statute above cited to determine the tenancy, at the end of three months after its service. As the plaintiff can not claim under the agreement with Shaw (to pay rent weekly), and must rely upon his claim for a reasonable compensation, independent of any special agreement, he can not have the benefit of the shorter intervals at which the rent was payable to Shaw.

But the notice, though specifying fourteen days, was a good notice to quit at the end of three months, inasmuch as no proceeding was instituted upon it within that time. Chamberlin v. Brown, 2 Doug. 120.

The tenancy at will was therefore terminated at the end of three months from the service of the notice, and the defendant became thereafter a tenant at sufferance. But to render him liable to the plaintiff for use and occupation, it was not necessary to terminate the tenancy at will. It was only necessary for the plaintiff to indicate his intention to forfeit the agreement and call for the possession. This was done by the demand of possession within fourteen days, which was fair notice to defendant that plaintiff wanted the possession at the end of that time, and that if he remained longer, he could not expect to remain rent free.

If the fourteen days was not a reasonable time for Shaw or the defendant in his behalf to pay the purchase money, he could only avail himself of this, even in a court of equity, by showing that he had offered to perform within 'a time which was reasonable. But here, though the possession was retained for some two years after, and no proceeding was instituted, yet no offer was ever made to perform the contract; nor was any objection ever made that the time fixed by the notice was too short.

It is very clear that assumpsit for use and occupation can not be maintained where the relation of landlord and tenant did not exist during the occupancy, or when the holding has been adverse to the owner, because, among other reasons, a disputed title can not be tried in an action of assumpsit.— Woodf. L. & T. 356; Evertsen v. Sawyer, 2 Wend. 507; Kittredge v. Peaslee, 3 Allen, 237. But when the relation exists, and the occupancy has been beneficial to the defendant, we think, upon principle, and the weight of American authority, the law implies a promise to pay a reasonable compensation, unless there be an express contract, or other circumstance, inconsistent with the notion of such promise or with the duty or obligation to pay. This was settled in Dwight v. Cutler, already cited, where the occupancy by the defendant was as tenant at will. And we think the mere fact of the occupancy by A of the land of B, is prima facie evidence that A is the tenant of B, which can only be rebutted by showing some fact or circumstance tending to rebut this inference.— Keyes v. Bill, 30 Vt. 759, But this inference would not tend to establish one kind of tenancy more than another, but simply the relation of landlord and tenant. This exists in the case of a tenancy at sufferance, though it is not so complete in all respects as in other kinds of tenancy.

But it has been said that, at common law, a tenant at sufferance was not liable for rent; and this must be so beyond question, as to rent, strictly so called, which always grows out of express contract, and is fixed and definite in amount. The contract being terminated before the tenancy commences, there is nothing from which rent, as sioch, can arise. But the reason generally given for the rule is broad enough to cover the reasonable compensation for use and occupation, or rather it applies to this as well as to rent. That reason is, the laches of the owner, that it is the landlord’s own folly to suffer the tenant to continue in possession after the determination of the rightful estate; on the ground, it would seem, that the owner has the right to reenter and terminate the tenancy at anytime. — See Chitty’s note to 2 Bl. Com. 150; Cruise’s Digest (by G-reenleaf), Title 9 Ch. %, §5; 1¡. Kent Com. 117; 1 Washb. on R. Pr. 408.

Neither Littleton nor Colee notice any such rule, nor does Blaclestone, except, perhaps, inferentially, while he apparently admits that the tenant would be liable for the mesne profits at common law, which would be quite as inconsistent with the reason given for the rule as compensation for use and occupation. Cruise cites no authority for the rule, and Kent cites Cruise. But Ghitty, in his note, cites Finche’s case, 2 Leon. 143, and Washburn cites this note and the case in £ Leonard, and also refers to Delano v. Montague, 4 Cush. 42 (which refers to the rule without deciding it), and Flood v. Flood, 1 Allen, 217, which adopts the rule upon the authority of Finche’s case, upon which alone the doctrine seems to rest. On reference to this case, as reported in 2 Leonard, it will be found to decide nothing of the kind, and could not, as it is expressly declared that there was not, in that case, any tenancy at sufferance. But Coke, one of the counsel, asserts arguendo, that such was the law, and the court, in giving the opinion, assume the same thing, and say by way of illustration, “Tenant at sufferance, he can not be in this case. In case of a common person, when the lessee for years holds over his term, he is become tenant at sufferance, and such a tenant shall not pay rent; -for it is the folly of his lessor to suffer his tenant at-sufferance to continue in possession of the land after his term, so as any tenancy at sufferance is made by the laches of the lessor, which laches can not be imputed to the Queen.” (The Queen was lessor in that case.)

It may, however, be admitted that this dictum fairly states the general rule of the common law as applicable to ordinary cases of tenancy at sufferance (no notice to quit being required in such tenancy at common law), but it is by no means clear that it Avas applicable, or intended to apply, to such tenancy after notice to quit; nothing being said upon that point in the case put. But, upon principle in the case put, of a tenant for years holding over after the expiration of his term, there may be some reasonable ground for saying that, until such notice or demand of possession, it is the landlord’s OAvn folly or negligence to suffer the tenant to remain; since, if he Avanted the possession, he ought to demand it, or re-enter; and that, until he shall indicate to the tenant his Avislr to have the premises, the tenant may infer that he does not Avish the possession, or that the tenant shall leave the premises vacant, nor intend to insist upon rent, or he Avould say so.

But after the rightful estate (as the tenancy for years) is terminated, and the landlord gives the tenant notice to quit, and demands the possession, this is as clear an indication of his desire to have the possession as an actual entry would be; and the tenant who has refused to give up the possession when thus demanded, can not justly be heard to complain that the landlord has been guilty of laches for not putting him out by force, or resorting to legal process to that end; nor to claim that for this laches he ought to be allowed the use of the property without compensation. It is little short of absurd to hold that, in such a case, the landlord has been guilty of such laches’ as should deprive him of all compensation' for the use of his property. And such must have been the opinion of Parliament, when by the statute of 4 Geo. 2 Ch. 28, § 1, the tenant holding-over after the termination of his term (tenant at sufferance), after possession demanded, was made liable to double the yearly value.

Such also must have, been the opinion of our legislature, when they rendered the tenant in such case liable to treble damages, after notice to quit or demand of possession under Chap. 150, Comp. L. § 4-997. And though the landlord can only obtain treble damages, by first obtaining restitution under the special proceedings there given; yet whatever may have been the common law, it can no longer be said, in the face of this statute, that the owner, after demanding possession in such a case, has, by omitting to re-enter by force, or to resort to legal process to eject the tenant, been guilty of such laches as should deprive him of all compensation for the use of his property. And the acceptance of, or the bringing suit for such reasonable compensation, must be considered as an election to accept the actual damages,' and to abandon all claim for treble - damages.— See Doe d. Cheny v. Batten, Cowp. 243, and cases there cited; 7 East, 314, n. And in the present case, especially, there is no ground for holding that the plaintiff must first obtain restitution under the statute, or by ejectment, and then bring his action for mesne profits, since the defendant has purchased the premises from the plaintiff, and since the purchaser, can not be ejected.

We are aware that in England it was held that assumpsit for use and occupation could not be maintained prior to, or independent of, the statute — 11 Geo. 2 Ch. 19 — unless there had been an express undertaking to pay. But since the old notion that such a claim savors of the realty, and could, therefore, be recovered only by an action of a higher nature, has been quite generally exploded, and' especially since the true theory of implied promises in assumpsit has come to be better understood and settled, and such promises no longer rest merely upon the inference that a promise in fact has been made, but upon the duty of the defendant to vay— a duty which he will not be heard to deny that he. has promised to perform — courts in this country have very properly held that assumpsit for use and occupation may be maintained at common law. .And we are certainly unable to see why the implied promise to pay a reasonable compensation for the use of the owners premises, does not, within the limitations above laid down, come as clearly within the principle of an' implied promise at common law, as the like promise to pay for the use of a house, or the reasonable value of goods purchased. This we understand to be the principle settled in Dwight v. Cutler, and we think it equally applicable to the case of a tenancy at sufferance, at least after notice to quit, or demand of possession, as to any other tenancy.

We think, therefore, that upon the case thus far stated, the plaintiff would have been entitled to recover a reasonable compensation for the use and occupation of the premises, from the expiration of the fourteen days mentioned in the notice up to the time of the sale of the premises to the defendant.

But the defendant undertook to meet the case already stated by an attempt to show that the relation of landlord and tenant did not exist between him and the plaintiff, but that his holding was adverse, so far as related to the house. And for this purpose he was allowed to show, under objection, that at the time the notice was served upon him by Fisher, he had told Fisher that he claimed to own the property.

It did not appear that Fisher was .employed by the plaintiff for any other purpose than merely to hand the notice to the defendant, or that he had any authority beyond this. Had the defendant entered into a conversation at the time with Fisher in relation to the mode of service, this would have related to a matter'within the agency, of Fisher; and what defendant might have said upon that point, might have been a part of the res gestee, and admissible in his own favor. But if defendant had remained silent when the notice was delivered to him by Fisher, could this have been treated as evidence tending to show an admission of the plaintiff’s right or of the defendant’s tenancy? I do not think it could; and I can therefore see no ground upon which the evidence of his statements to Fisher can be received in his own favor.— See Emerson v. Harmon, 14 Me. 271; Crosbie v. Leary, 6 Bosw. 312; Morrill v. Foster, 82 N. H 358; Parker v. Goldsmith, 16 Ala. 526; Plumer v. French, 22 N. H. 450; Osgood v. Coates, 1 Allen, 77; Thompson v. Mawhinney, 17 Ala. 362; Morrill v. Titcomb, 8 Allen, 100; Byden v. Moore, 11 Pick. 362.

Admitting that defendant’s statement, if made to the plaintiff himself, instead of Fisher, would have been admissible in his own favor (upon which I express no opinion), it was in this case merely the statement of the defendant himself to a third person who was under no obligation to inform the plaintiff of it, and it does not appear that he did so. If mere words can constitute an adverse claim, they must at least, in such a case, come to the ears of the owner.

This evidence was therefore erroneously admitted, and the testimony of the defendant himself, as to what he told Fisher, stands upon the same ground.

The defendant, as witness in his own behalf, was, under objection, allowed to be asked the general question, “How did you claim to occupy the properly?” To which he answered, “I considered it mine.” This, I think, was also erroneous. No attempt was made to bring home to the plaintiff a knowledge of this claim. It was merely testifying to the state of the witness’ own mind.— Law v. Payson, 32 Me. 521. The question upon this point was whether the defendant did, in fact, hold adversely; and this was to be determined by the jury from facts produced in evidence, such as showing that he went in under some colorable claim of right, at least, hostile to that of,the owner, or that the landlord’s title -had become extinct, or that he had subsequently obtained it, or at least some colorable claim to it, upon which, though unsound, he still might, in good faith, have relied, as against the owner, and that the owner had been informed that he was holding or claiming to hold in hostility to him.

But here the defendant went into possession, admitting thé title of the owner (through whom plaintiff derived title) Remice v. Robinson, 7 Moore, 539; Rennie v. Robinson, 1 Bing. 147; Russell v. Allard, 18 N. H. 225 — and after remaining quietly in possession for a long period, without any overt act or any declaration to the plaintiff or his grantors, indicating a hostile holding, until that possession is demanded of him by the plaintiff (the owner), and ho could not then, for the first time, by mere words, without any facts to sustain them, or by a mere silent opinion or determination of his own mind, make his holding adverse to the owner, so as to prevent the latter from treating him, at his option at least, as tenant at sufferance. — Balls v. Westwood, 2 Camp. 11. If he could do this, the maxim that a tenant is estopped to deny the title of his landlord, would cease to have any practical value at the very moment when it is most required for the purposes of justice.

He might, it is true, set up any right acquired by him since he went into possession, not inconsistent with the title of the parties under whom he entered at the time he took the lease or went into possession. He undertook to show this by the attempt to show that he had purchased the house at constable’s sale on execution against Shaw, and that there was an agreement between himself and the plaintiff’s grantors (then the owners), that the house shall be considered as the personal property of Shaw, for the purpose of sale on the execution.

But this defense rested upon the execution sale; and to establish oven a colorable title or claim under this sale, it was necessary to show, by legal evidence, the execution, the judgment in the attachment suit, and the proceedings necessary to give the justice jurisdiction.

The docket was introduced, showing what purported to be a judgment, but silent as to any affidavit or bond. It stated that execution had been issued, but did not show whether it had been returned. Neither the affidavit nor the bond required to give jurisdiction, nor the execution, nor any of the files, were produced. But the defendant was allowed to give parol evidence of their contents, after merely showing by the justice who rendered the judgment, that he delivered the docket, and, he believed, the files also, to his successor; that he had looked for tbe files in his office since and could not find them; and, by his successor, that he was very certain he had not received the files, but that he had not searched for them in his office.

Without this search, we think the loss of the papers was not sufficiently proved to admit parol evidence of their contents.— Jackson v. Frier, 16 Johns. 193; Woods v. Gassett, 11 N. H. 442; Kimball v. Bellows, 13 N. H. 71; Morrill v. Foster, 32 Id. 359; Depew v. Wheelon, 6 Blackf. 485.

It can hardly be expected that the second justice, after the lapse of years, could recollect whether the files in a particular case had been delivered to him by his predecessor, without some special circumstance (which he does not mention) for calling his attention to the fact. They should have been delivered to him with the docket, and the former justice thinks they were. In such a case, however confident the second justice might seem that he had not received them, there can be no reasonable certainty without search. The reason for requiring clear and satisfactory proof of loss in such a case is very strong. The very fact that the justice had issued the attachment, and proceeded to judgment and execution, is proof that he supposed all the preliminary papers to be in due form; and this must, therefore, be the impression left upon his mind afterwards. If there were any.defects — as is quite common where such proceedings have been ex parte, and no question raised before the justice — he would of course very honestly testify that all were proper 'and regular, while an examination of the papers themselves might disclose fatal defects, never brought to his attention.

There was, therefore, no legal evidence that there had over been any constable’s sale on execution, or any adverse holding by the defendant — nothing to rebut the inference of tenancy arising from the occupation by permission of the owner.

It may be proper also tó notice here that the house, which the original verbal contract required Ellis to build on the lot (whether constructed on blocks or firmly attached to the soil), must, within the fair meaning of the contract as properly held by the court, be treated as a part of the real estate; if it would not have been so held without such special requirement.— Eastman v. Foster, 8 Metc. 26; Ogden v. Stock, 34 Ill. 522. Any verbal contract, therefore, between Ellis and the owner, after the house was erected, for its conversion to personal property, or its severance from the realty, would be as clearly within the prohibition of the statute of frauds, as ^f it had been a contract for the conveyance of a part of the lands. And there is no evidence tending to show a part performance so as to take the supposed verbal agreement out of the statute, even in a court of equity. The court, therefore, erroneously left it to the jury to find such agreement from the evidence. As real estate, the house could not be sold at constable’s sale on execution from a Justice’s Court.

Whether the testimony of Bishop, offered by the plaintiff to show an admission by the defendant, on the trial of the case before the justice, that $150 was due for rent of the house, was properly excluded by the court, as not rebutting, because it might have been introduced as a part of the plaintiff’s evidence in chief, is a question upon which the authorities are not agreed. See on one side Shepard v. Potter, 4 Hill, 202; 1 Cow, and Hill’s notes to Phil. Ev. note 500. On the other, Star hie Ev. (Phila. Ed.) 608, and Jacobs v. Tarleton, 11 Q. B. 419. And as there is to be a new trial in the case, we do not deem it necessary to decide the point here, as there is little probability. that the question will again be presented in the case in the same form.

The judgment must be reversed, with costs, and a new trial awarded.

Cooley Oh. J. and Graves J. concurred.

Campbell J.

I do not think that under any system of law which ever prevailed, concerning mortgages, the dealings between Shaw, Ellis and Hogsett would have constituted the latter mortgagee in possession. Had they done so, I am not prepared to say that when a mortgagor voluntarily and intentionally gives up possession to the mortgagee, the latter would not occupy the same position as under the old law in regard to his possessory rights, when lawfully in. I prefer to reserve any opinion on that point. But I agree that in the present case no such change of tenancy exists, and I concur with my brother Christiancy upon all the other matters which he has discussed.


author: Cooley Ch. J.

text:
    John B. Harrison et al. v. Henry Metz.

      Prospective legislation. Under the provision of the statute — Laws 1867, p. 89 — providing “that every action upon a judgment, etc., shall be brought within ten years next after the judgment was entered, and not afterwards, and that any action upon such judgment, not commenced within said time, shall be forever thereafter barred; ” held, that its operation was prospective, only, and not applicable to past judgments.

      Heard and decided October 17th.

    Case made after judgment from Wayne Circuit.
    This was an action of debt brought by the plaintiffs against the defendant upon a judgment.
    The declaration consisted of six counts upon the judgment on which suit was brought. The pleá was the general issue, with a notice thereunto annexed, that the causes of action alleged in the plaintiff’s declaration, and neithef of them, accrued to the plaintiffs within ten years next before the commencement of this suit. The cause was tried by the court without a jury.
    On the trial of said cause, it was admitted by the counsel for the plaintiffs and for the defendant respectively, that the judgment hpon which this suit was brought was rendered on the 17th day of September, A. D. 1857, in the Circuit Court for the County of Wayne, in favor of said plaintiffs and against said defendant, and that nothing had ever been paid on said judgment; and that the same was not satisfied, reversed, or otherwise vacated; that this action was commenced on the 12th day of November, A. D. 1867; and that the date of the final adjournment of the Legislature for the State of Michigan, in the year 1867, was March 28, 1867.
    The statute relied upon by defendant is as follows:
    “ Every action upon a judgment or decree rendered in a court of record of the United States, or of this or any other State, shall be brought within ten years next after, the judgment or decree was entered, and not afterwards; and any action upon sucli judgment or decree which shall not be commenced within the time above specified, shall be forever thereafter barred.”
    Judgment was rendered for the plaintiffs for the sum of damages, and tjhe costs of suit to be taxed.

      Wilkinson & Post, for plaintiffs;
    Courts will construe no law to have a retroactive effect unless the legislative intent, that it shall so operate, expressly and clearly appears upon the face of the statute itself, and if a construction of any statute which shall limit it to a prospective effect only, can be found, that is at the same time consistent with the express letter of such statute, such construction will universally be adopted. — Sedgwick on Const. and Stat. Law, pp. 202, 406; Cooley on Const. Limitations, p. 870, and cases cited in note 1.

    The following amendment to a statute of limitations was passed February 27, 1867- — ■Laws 1867, ¶. 89: “Every action upon judgment or decree rendered in a court of record of the United States, or of this, or any other state, shall be brought within ten years next after the judgment or decree was entered, and not afterwards; and any action upon such judgment or decree which shall not be commenced within the time above specified, shall be forever thereafter barred.”
    We contend that its operation is prospective only.
    Statutes of limitations in reference to the question of their retrospective operation, as found in the books, may be divided into four classes:

      a. Those which expressly apply only to future causes of action, or expressly except existing causes of action.

      b. Those which expressly apply to both existing and future causes of action alike.

      c. Those which expressly provide a distinct and different limitation to apply to all existing or accrued causes oí action alike, fixing a limitation, of a fixed period, which commences to run from the taking effect of the Act.

      cl. Those which provide a general limitation of a fixed period, commencing to run from the accruing of the right of action, but do not specify in terms whether they apply to existing or only to future causes of action, or to both.
    The first three classes rarely ever call for any judicial construction, except it be to determine whether the terms of a particular statute bring it within one of these classes, and if so, which one, and when this is once decided, then the question of its retrospective operation is governed by its express terms, and no room for construction, and consequently no discretion is left to the courts.
    As to the fourth class, the legislature having failed to express clearly and definitely in the statute itself, whether it shall apply to future causes alone, or to past causes alone, or to both alike, the courts decide the question in favor of such a construction as shall give the statute a prospective cast only.
    The first question, then, is which class does this statute belong to? Its terms are general, and broad enough to cover both existing and future causes of action, but not so specific and definite as to indicate a manifest and unmistakable legislative intent that it should operate retrospectively as well as prospectively, and to preclude, or be inconsistent with the. intent that it should operate prospectively only. This amended section, standing alone, and unconnected with the following section, would clearly belong to the fourth class.
    The decided weight of authority is that such statutes should be construed to have no retroactive force.— 21 Conn. 351; 18 Johns. 138; 16 Mass. 215; 11 Wis. 422; 12 La. An. 793; 15 Id. 649; 5 B. Mon. 564; 14 Gratt. 24; 11 Ill. 54; 14 Id. 495; 15 Id. 200; 1 Breese Ap. 30; 26 Miss. 304; 23 Id. 270; 24 Id. 377; 15 How. U. S. 421; 36 Barb. 447; 10 Ohio St. 588.

      If such a statute be given a retrospective construction, it must inevitably operate upon some causes of action to take away all remedy whatever, and for that reason, as to such cases, be unconstitutional and void. This of itself might be a very good reason for giving to such a statute such a construction only, as shall make it apply alike to all cases that come within its provisions, if such construction be not inconsistent with the express terms of the statute itself. A construction giving the statute a prospective effect only would accomplish this.
    It has been almost the uniform practice with our legislature to save existing causes of action from our statutes of limitations. This, again, would lead to the inference that such was the legislative intent in this case. This inference is strengthened when we consider the amended section in its connection with the section next following it. If we are correct in our view that section 5385, in so far as it affects this amendment of section 5384, operates precisely as if the whole chapter as amended spoke anew from the date of the taking effect of this amendment, then this amendment, taken in connection with said following section, contains an express saving of all prior causes of action from the limitation fixed by this amendment. We think this a reasonable construction of the two sections combined. Any other construction robs section 5385 of any force whatever upon the limitations provided in this amendment, and yet section 5385 is general in its terms, and apparently intended to cover all the limitations contained in the chapter. This construction is not inconsistent with the express terms of the amendment.
    But even if the court shall conclude that section 5385 has spent its force before this amendment was passed, and should so construe it, may not the presence of that section help to explain why the legislature, contrary to its almost universal custom heretofore, has made no express saving of prior causes of action in the body of the amendment itself, by furnishing a reasonable inference of an intent to save such prior causes of action, according to their custom, and a supposition or belief on their part, albeit a false one, as it may now appear to the court, that such was the effect of the section ?
    But, in 1863, the legislature passed a statute which in express terms did apply to prior causes of action. This again would indicate that if it had been their intent to make this amendment retroactive, they would have done so in express terms. — Bess. L. 1863, p. 388, §0.
    There is a class of .decisions that is numerous and respectable, that hold that such statutes as this should operate upon prior causes of action to bar them at the expiration of the period of limitation, from and after the taking effect of the statute. Although these decisions are in our favor on the whole subject, we fail to see any good reason for such a construction. It seems to us that the evil which they seek to escape may be better avoided in another way, that has the merit of resting in sound reason. 32 Barb. 428; 8 Wend. 661; 10 Id. 365; 1 Eng. 513; 4 Id. 423; 1 Green, (Ia.) 338; 2 Id. 181, 243; 1 Carter, (Ind.) 56; 2 Id. 486, 647; 31 Mo. 393; 35 Ala. 560; 2 Sandf. Ch. 569.

    It is possible that a distinction may be drawn, between a case where a statute of limitations before existed and a case where none existed, which will tend to reconcile some of the cases. — 12 Wis. 371; 2 Minn. 241.

    If the court shall construe this statute, after all, to be retrospective, so as to apply to this case, it may be worthy of consideration whether the plaintiffs had a reasonable time within which to bring this suit after the statute went into effect, and before the limitation expired.

      IS. Y. Swift, for defendant.
   Cooley Ch. J.

We have no doubt that the legislature intended the act in question — Sess. L. 1867, p. 89 — -to affect only the causes of action which should accrue subsequent to its taking effect as law. There is nothing in-the act itself from which we can gather any different intent, and it is a sound rule of construction that legislation is to have a prospective operation only, except where the contrary intent is expressly declared or is necessarily to be implied from the terms employed.

The other Justices concurred. .


author: Cooley Oh. J.

text:
    Samuel Molby v. John W. Johnson.

      Recoupment. Only such damages can he recouped as spring out of the contract upon which suit is brought.

      Heard and decided October 17th.

    Error to Hillsdale Circuit.
    This was an action of assumpsit, brought to recover the amount due upon a promissory note, dated April o, 18G4.
    The defendant gave notice of recoupment.
    On the trial, it appeared in evidence that Johnson had sold Molby a quantity of personal property by bill of sale, including horses, dated March 16, 1861, and on the back of which was endorsed, as the balance due Johnson, $139.32. The horses and certain other of the articles having been paid for, Molby paid him $39.32 in money, and gave the note sued upon for the balance.
    He testified as follows: “The note was given for a balance .due plaintiff. I offered plaintiff a check, but he said he didn’t want that. I said, “then I shall have to owe you a little, as I lack about $60, and to make it even I guess I’ll put the note for $100.” This is the only note I ever gave him — the note was given on settlement — this is the only settlement I ever had with him. I owed him, I think, $139.32. I paid him the $39.32 in cash, and gave him this note for the balance. The $139.32 was for the articles mentioned on the back of the paper in pencil; I had paid him for everything else. The articles! enumerated on the back of the paper and put down in pencil, were not carried out in price, for we did not know the market value of them. The plaintiff was to And out the market value, and I was to pay it. This is the reason I did not pay him for them at the time I paid him -for the other things. I think it was on the first of April I paid him all up except this $139.”
    The counsel for the defendant, to maintain and prove the issue on his part, then asked the witness Molby the following question:
    “What was the understanding between you and Johnson at the time you purchased the horses?” And offered to prove by said witness, Samuel Molby, a warranty of said' horses by the said plaintiff to the said defendant.
    The counsel for said plaintiff objected to the introduction of said evidence, on the ground that the horses had been sold by a written bill of sale, and parol evidence of warranty was not admissible; and because it appeared from the testimony of Molby, defendant, that the said note was given for the balance due on the aforesaid articles, endorsed in pencil on the back of the aforesaid writing, and was not given for said horses, and that said horses constituted no part of the consideration of said noté.
    The' objection was sustained, and the testimony excluded.
    Judgment was rendered in favor of the plaintiff. •

      O. Hunt, and H H. G. Wilson, for plaintiff in error.
    1. The court refused to permit the witness Molby to answer the question: “What was the understanding (between plaintiff and defendant below) when you purchased the horses.”
    The object of the question was to show that the horses, and if followed up, the other articles, were not such as plaintiff below represented them to be, thus laying the foundation for a defense by way of recoupment.
    The note was given for balance due on a sale of certain articles specified in a memorandum, referred to on page three of printed record. It was perfectly proper for defendant below to show, by way of recoupment, that the articles failed to come up to the standard represented. — 8 Mich. 850.

      2. The paper writing is in no sense a bill of sale, but is a mere memorandum of the articles sold, and to be delivered at a future day, and the price to be paid at a future day. And parol evidence is admissible to show what the actual contract of sale was between the parties.— 24 N Y. 338; 3 Mich. 211; 11 Id. 68; 12 Id. 289.

    The above authorities are cited to show that this court has admitted parol evidence to explain the terms of a Iona fide bill of sale.
    The evidence shows a transaction resting partly in writing and partly in parol. The evidence also shows the first conversation to have taken place on the 5 th of April, when some of the articles were written on the back of the memorandum, of the prices agreed upon, showing a transaction partly in writing and partly in parol. — 1 Greenlf. Ev. 397, § 284; 1 Mass. 297; 8 Met. 59.

      Wallcer & Kent, for defendant in error.
    The error assigned is the refusal of the court to allow the defendant as a witness to answer the question: “What was tbe understanding between you and Johnson when you purchased the horses?”
    The question was objectionable in form because it asked for the “understanding” between the parties and not their agreement, or more correctly what was said; and for this reason alone was properly overruled.
    Anything relating to the horses could be admissible only on the ground that the purchase of the horses was included in the contract sued on; that the horses had been warranted, and that they had proved inferior 'to the warranty, and the defendant been damaged thereby.
    The defendant was seeking to recoup damages, and only such damages can be recouped as spring out of the contract upon which suit is brought.— 3 Mich. 1.

    The evidence shows that the purchase of the horses was in a prior contract to that sued on.
    The horses were paid for April 1st. At that time the contract for the articles, minuted in pencil on the back of the agreement, was not made; for the prices were not fixed, and nothing had been paid down, and no delivery made of any portion of them, so far as appears. Hence, the sale of these articles was made in a new and separate contract.
    Again, Molby did not offer to show that the horses purchased were inferior to the warranty.
    Lastly, the horses were sold by a written bill of sale containing no warranty, and special evidence of a verbal warranty was inadmissible.— 25 Vt. 577; 8 Ind. 79; 1 Johns 444, 508. 8 Wend. 459.

    The case does not come within the principle of 11 Mich. 68 and 12 Mich. 284.

   Cooley Oh. J.

There was clearly no ground for recoupment in this case. The evidence of the plaintiff in error showed that the horses formed no part of the consideration of the note.

The judgment must be affirmed.

The other Justices concurred.


author: Cooley Ch. J. ' Campbell J.

text:
    David Demaray v. Wm. N. Little et al.

      Appeal in chancenj: Final order. An order opening biddings before confirmation, and directing a new sale on condition that a larger bid shall be made, is not appealable.
    Our statutes regulating chancery sales do not dispense with the practice requiring confirmation, but are to be construed in the light of that practice which has always been recognized as consistent with them.

      Heard and decided October 23d.

    Appeal in Chancery from Saginaw Circuit.
    This was a foreclosure suit, and a decree having been rendered, the property of Little, sworn to be of, the value of $20,000 or $25,000, was sold and bid in by Henry C. Potter for $11,750. After the sale Little applied to the Circuit Court to -set aside this sale and order a re-sale for reasons shown in his petition, and the court made an order for a re-sale on condition that at least ,$16,000. should be bid, and that then Potter’s money with interest and costs should be refunded to him; but in case the sum of $16,000 was not bid, then Potter’s purchase should stand confirmed. Potter appealed-from this order.
    The case coming on for hearing, a preliminary question was suggested as to whether the order, from which the appeal ivas taken, was such a final order as came within the statute which confines the right of appeal to decrees and final orders. The court directed this question to be argued separately.

      Wm. L. Webber, for complainant in original bill.

      8. M.'Green, for H. C. Potter, appellant.

      Gaylorcl & Hanchett, for appellees.
   Cooley Ch. J. '

The jurisdiction of this court over appeals in chancery is entirely statutory, and we can not assume to exercise authority, even by consent, where the statute has not given it. The legislature has given us jurisdiction only in cases where an appeal is taken from a decree or final order. Is the order in this case a final order? Manifestly it is not. It did not assume finally to dispose of the rights of the appellant, but left them subject to the contingency of future biddings; the sale to appellant to stand confirmed unless those biddings reached §16,000. Wo can not, therefore, say on this record that petitioner will not have his sale confirmed to him. If, however, a new sale has taken place to another person, it will only be when that.sale is confirmed by the Circuit Court in chancery that any final order will be made upon petitioner’s rights. It is objected, however, that the statutes do not provide for any order of confirmation for such sales, and that they are complete when a deed is given. Our statutes, however, were not intended to do away with the practice which in this state has always required an order of confirmation. The statute does not by any means set forth completely the course of proceedure in these cases, but it is supplemented by the preexisting rules and practice. •

Without,' therefore, expressing any opinion on the question whether we have authority to review an order setting aside a sale, I am satisfied this appeal should be dismissed.

Graves J. concurred.

Campbell J.

I think, when we adopted the New York statute, we took it as practically and legally construed, and the practice in this state has always held sales under foreclosure decrees subject to confirmation. When the statute speaks of the effect to be given to a deed, it means only to speak of the effect it shall have after it becomes operative, and not to say when it shall become operative. Until a sale is confirmed, it is subject to the discretionary power of the court to open it for any sufficient cause; and we must assume that the courts in chancery will always act upon a proper sense of what “the rules of justice require.

No right becomes fixed in the purchaser until the sale becomes absolute by confirmation, and an order, opening a sale not yet confirmed, is, in no sense, therefore, a final order, but is purely a question of practice, to be determined by the court below. The distinction has always been recognized in this court between those orders which are final as to rights and proceedings, and those which are not. A decree is final, and may be appealed, but an order opening a decree is held not final, because it remits the rights of the parties to further decision. So a confirmed sale confers vested rights, and an" order of confirmation, or an order opening such a sale would be appealable because operating directly on rights by fixing or divesting them; whereas, before confirmation, there is no vested right to be reached.

I think, therefore, that this order was not open to appeal, but was discretionary, and that the case must be dismissed.

Christiancy J. concurred.


author: Campbell J.

text:
    George C. Vinton et al. v. Luther H. Mead.

      Writ of attachment: Return day. Where a writ of attachment was made returnable on “ Tuesday, the 2d of June ” without mentioning the year; held, in law to mean after the date of the writ — Nash v. Malloi'y, Antep. 232.

      Circuit Court Commissioner: Dissolution of Attachment: Evidence. A Circuit Court Commissioner can only dissolve an attachment for reasons going to show that the plaintiff “has not a good and legal cause for suing out such writ.” This includes nothing but an inquiry into the facts or the sufficiency of the affidavit. Other defects are beyond his jurisdiction.

      Heard October 17th.

      Decided October 20th.

      Certiorari to a Circuit Court Commissioner for-Clinton County.
    The Commissioner dissolved an attachment on several grounds, and this proceeding was to review his action.
    The facts are stated in the opinion.

      Spaulding & Granson, and Patterson & Scovill,.for plaintiffs

      D. Jamison, for defendant.
   Campbell J.

In this case a Circuit Court Commissioner dissolved an attachment on two grounds: First, Because the writ was made returnable on “Tuesday, the 2d day of June,” without mentioning the year; and secondly, because the copy of the writ of attachment served on the defendant purported to be issued in 1860, when the suit was really commenced in 1868, and the writ was so dated. The first point was decided in Nash v. Mallory, 17 Mich. 282. The writ' was in law returnable on the 2d day of June after its date.

The second ground was not within the jurisdiction of the Commissioner. He can only dissolve an attachment for reasons going to show that the plaintiff “has not a good and legal cause for suing out such writ.” This includes nothing but an inquiry into the facts or the sufficiency of the affidavit, and all other defects in the proceedings must be passed upon by the court and not by the Commissioner at chambers.

His order, therefore, must be quashed, with costs.

The other Justices concurred.