author:
Christiancy J.
      Campbell J.

text:
    R. E. Case v. J. M. Dean et al.

      Circuit Court Commissionedv Tax titles. The provision in the law of 1858 (§ 101, p. 186) authorizing proceedings before a Circuit Court Commissioner to test the validity of tax titles in very plain terms purports to act on rights, and not on remedies. It is therefore absolutely void. Waldbyv. Callmdar, 8 Mich. 430.

      Supervisors: Valuations of real estate: Assessment roll. On the trial, evidence was admitted tending to show an erroneous footing of the valuation of real and personal property upon the assessment roll, and that the Board of Supervisors in equalizing the township assessment had adopted and confirmed valuations of property according to such erroneous footing.

      Held, that the rolls being in evidence before the jury, proof by witnesses as to the true footings of the rolls was immaterial, and that it was no part of the duty of the Supervisor to foot up the valuations of real and personal estate on the rolls, as a pre-requisite to equalization by the Board.

      Board of Supervisor's: Equalization: Jurisdiction. The power of equalization by the Board being confined to the real estate, and the whole subject being under their complete jurisdiction they may adopt their own means of reaching the result; and when that result is reached, it is conclusive and cannot be invalidated by evidence that they had adopted as a basis an erroneous footing or aggregate of the valuations returned by the Supervisor.
    When any alteration is made in the aggregate valuation of the real estate, the additions or deductions so made may be expressed in any form which may by calculation be reduced to a percentage. v

      Effect of erroneous footing by the Board, of the valuation of personal pP'Operty. In ascertaining the amount of State and County taxes to be apportioned among the several townships, an erroneous footing by the Board of the valuations of personal property as appraised by the Supervisors will not invalidate the tax unless the error has the effect to increase the tax to be borne by the parcels of land in question beyond its just proportion.
    ‘ Fraudulent bidding at tax sale, effect of. When a purchaser bids off property at a tax sale, the fact that a combination existed to prevent certain lands from being sold to other bidders, but to which he was not a party ,and of which he was ignorant, will not vitiate his purchase.

      Omission of assessment of one mill tax, effect of The one mill tax required to be assessed for township library and school purposes, (Comp. L. § 2350) was not placed on the tax roll in the column of school taxes as required by law, and did not appear by the roll to have-been assessed at all. But the amount of taxes stated in the column of state, county and township taxes was too much (according to the valuation and amount to be raised) by just the amount of a one mill tax on the valuation of the tracts. Held, that the jury were not at liberty, for the purpose of sustaining the tax title, to find that the one mill school tax had been added to or included in the state, county,'and township taxes; but that the excess in the column of the latter taxes could not be thus explained; and that the sale of the lands for the taxes were thereby rendered void. The statute requiring this one mill tax to be stated in the column of school taxes is not merely directory, but mandatory.

      Bower of Supet'isor to assess: Clerk's certificate: Void sale. The certificate of the township clerk stated that the sum of $200 had been voted for township purposes at the annual meeting. It appeared also from the warrant attached to the tax roll, for the year 1857, that the taxes in the column of state, county and township taxes in one parcel of land was 15 cents in excess, and in another 6 cents, according to the valuations and amounts to be raised. Held, that the statute presumption in favor of the tax title did not extend so far as to require or authorize the presumption that another certificate had been given for a further sum; that the statute requiring and contemplating but one certificate, the proof of one did of itself raise a presumption against the existence of another not shown to have existed.
    The authority to tax being fixed by the statute must be strictly pursued.
    The Supervisor can only assess such taxes as are properly certified to him and such as the law makes it his duty to assess -without such certificate; any material excess, therefore, in the state, county, or township tax —and which are all blended in one column — will render the taxes in such column void; and a sale based on such tax will be void.

      Tax title: Burden of proof. While the holder of a tax title may rest upon his deed until the opposite party introduces such evidence as, in the absence of all counter testimony, will afford reasonable ground for presuming the proceedings anterior to the deed to be irregular, yet when this is shown, the burden of proof is thrown upon the holder of the tax title.

      Auditor General's deed: Presumption of regularity. To overcome the presumption of regularity in the Auditor’s deed, plaintiff must show some substantial error affecting injuriously the owner of the land in the raising, return, assessment or collection by sale for the taxes levied.

      Tax roll: Error in computation. The tax roll upon its face showed an error of ten cents, in the aggregate amount of taxes as carried out opposite a certain parcel of land; but which the County Treasurer corrected before the sale. Held, that as this could not injure the owner of the land, it must be, disregarded.

      Heard April Zd< Uh and 5th.

      Decided July 11th.

    Error to St. Joseph Circuit.
    This was an action of ejectment by the owner of the fee, brought against the plaintiff in error, who- claimed the premises by virtue of two deeds from the Auditor General, made on sales for the years 1856 and 1857.
    The tax deeds had been recorded in the counties where the land was situated, more than two years'before the commencement of suit.
    The plaintiff below obtained judgment in the Circuit Court.
    The case comes up on numerous exceptions taken to the rulings of the Court below, and which are stated in the opinion.

      H. F. S&verens and G. V. JL. Loilvrop, for plaintiff in error.
    1. It was not competent to show by witnesses the actual footing of values of real estate on the assessment roll.

      a. The final aggregate of values of real estate is fixed by the Board of Supervisors. This then becomes the legal basis for the assessment of taxes. Laws 1853, § 27, p. 137; § 31, p. 138.
    It is to be observed that no footing ,of the valuation is required by law. The footing is but an act of computation. The roll is legally certain without it.

      The Supervisors, by their process of equalization, determine what shall stand as the aggregate for the purpose of levying the taxes. This they may do either by stating the per cent, to be added or deducted, or by completing the computation themselves and stating the result.
    They are also required to determine and state the total aggregate of real and personal estate of each town as determined by them. — Laws 1853, §§ 29, 30, p. 137.
    This must be taken as the final and authoritative basis for the levy of taxes, and not subject to any farther remission. — 7 Barb. 127; 7 Id. 133; 16 Id. 244; 19 Id. 22; 21 Id. 207.

      b. These observations apply to the evidence put in from the blank pages of the assessment rolls. It seems to have been assumed that there were footings made by the town assessor. But there is no evidence of this. Even if there were, it would be but a volunteer act of the assessor, and of no obligation, validity, or force whatever. It was utterly immaterial.
    Yet this evidence constitutes an important part of the foundation on which the counsel for plaintiffs below, and the Court, placed their case.
    2. The plaintiffs below were allowed to prove what is called a “practice” among bidders in St. Joseph county, not affecting the land in .question, nor including the defendant below.
    It is not necessary for us to consider what might be the effect of a conspiracy to deter bidders brought home to Mr. Case. That is not the thing proved or offered to be proved.
    The plaintiffs sought to show, 1st, that persons present at the sale frequently proclaimed “That is my land.” 2d, that this frequently led to a withdrawal of competing bids.
    There is nothing unlawful in such acts. They do not constitute a conspiracy. They bind no one. The State does not suffer. At any rate, so far as the defendant below was concerned, the matter was res inter alios.

      No evidence was given connecting either the defendant or the 'land in question with the acts proven. Without such a foundation the acts of entire strangers cannot be admissible. — 1 Greenl. Lv. § 111; 9 Mich. 434; 4 Pich 108.
    Whether the acts complained of would have authorized the County Treasurer in adjourning the sale, or in refusing to receive the bids of certain parties, does not concern us here.
    As he proceeded with the sale in good faith — andas the defendant below bought in good faith, and received his deed on such sale — it cannot be impeached by misconduct of strangers, if indeed any misconduct there were.
    3. The defendant below showed title to the N. W. J of sec. 26 by two tax deeds for taxes of the years 1856 and 1857 respectively.
    He also showed title to the N. \ of the S. ¥. | by a tax deed for taxes of 1857. These were prima facie evidence of title.
    But the plaintiffs below sought to invalidate these deeds by alleged errors or irregularities in the proceedings. These we will now examine in their order.
    1. Deed for taxes of 1856 on N. W. i of sec. 26.
    The alleged error in this case is, that a computation shows that the state, county and township tax, $4.43, is one dollar too much.
    This is conceded.' But by an examination of the whole tax, we claim that the total tax is not too large.
    It appeared that the district school tax for 1856, properly levied on this land, was $1.43. This leaves nothing for the mill tax, which the Supervisor was bound to levy. 1 Oomp. Laws, § 2350.
    The valuation of this land in 1856 was $1,000; and the mill tax on this would be $1. This, added to the amount called state, county and town taxes, would make the aggregate of that tax correct. And this mill tax can be found nowhere else. But it is said that the mill tax should be placed in the column with school taxes. So the statute requires. — Latos 1853, §36, p. 139.
    But we claim that this is directory. It is a provision not for the protection of the tax payer, but for the convenience of the public officers.— 2 Mich. 498; 7 Barb. 139; 6 McLean, 418; 21 Picio. 64.
    The tax payer is not prejudiced by an error in this respect. It was assumed by the Court beloiv that he might be prejudiced by the mixing of one tax with others which were invalid; that he would wish to pay the valid ones and refuse to pay the other.
    Our reply is that in such case the confusion of one void tax with others makes the whole void, and the tax payer is excused from paying any of them. —13 Mich. 414; 4 Id. 157.
    4. Deed for taxes of 1857 on N. W. of sec. 26.
    Two errors seem to be claimed to exist in the taxes for this year.

      a. The first is that the sum raised for township charges ($245.04) was too large.
    The only evidence relied on as tending to show this, is, we suppose, the clerk’s certificate of the amount voted at the annual township meeting, viz., $200.
    This does not tend to show that this was the only money for township charges that the Supervisor was lawfully required to levy. It does not overthrow the statutory presumption of regularity. For it is perfectly consistent that other sums for township expenses might be regularly certified to the Supervisor.
    And though no certificate but the one for $200 is found, yet on the qtapers found in the Supervisor’s office there are distinct traces that other sums were certified. Thus the memorandum of $17 on the $200 certificate, and the paper signed by Oakes, the deceased Supervisor. It is true these are only memoranda made by the Supervisor in bringing together the sums that he was to levy, but they imply the certificates which brought such sums to his attention. The $200, with the other sums named on these memoranda, it will be noticed, make $245.

      1. But, second,, it is said that, allowing this $245 to be correctly raised, the taxes on the two parcels of land for 1857 are in excess fifteen cents in one case, and six cents in the other.
    To this we answer, first, that the only evidence that $245 was the full sum assessed as township charges is the warrant annexed to the collector’s roll.
    But this is not proper evidence of that fact. The designation of the disposition of the funds in the warrant is for the convenience of the collector. It is hot controlling. The law makes the actual disposition. And no mistake or perversion of the lawful disposition in the warrant will change the legal right of state, county, town or school district.
    It follows, therefore, that the plaintiff below was bound to go further. He was bound to give evidence sufficient to show either, first, that township charges to an amount sufficient to warrant the tax and which might have been legally certified to the Supervisor, did not, in fact, exist; or, second, that though such charges did exist, they were not, in fact, certified to the Supervisor.
    The plaintiff below gave no such evidence.
    But, on the contrary, the defendant gave in evidence the fact that there was the sum of $37.39 charges for a town line road which might have been certified, and which, if certified and levied, would satisfactorily account for the alleged discrepancy.
    We were then entitled to the full benefit of the statutory presumption of regularity. The plaintiff below showed no facts absolutely inconsistent with regularity; he therefore failed to overthrow the ¡sresumption. — 2 Mich. 495; 4 Id. 158; 9 Id. 338; 13 Id. 415.

      c. But, finally, even if we concede that there is an excess of fifteen cents or six cents, does this avoid the sale?
    It is not an excess arising from the levy of an unauthorized tax; it is, if an excess at all, only an excess arising from an error in computation.
    This is, we think, a material distinction. While the former avoids a tax, the latter should not.
    We are aware that Elwell v. Shaw, 1 Greenleaf, 335, and Huse v. Merriam, 2 Greenleaf, 375, are usually cited as authority to a contrary doctrine. But compare 10 Mass. 105; 20 Pick. 424; 4 Mich. 140.

      Riley é Shipman, for defendants in error.
    1. There was no error in the admission of evidence, to show the true footing of values of real estate on the assessment roll.
    2. The charge of the Comt that if the assessment and sale of the premises in question was too much by 99,..cents, the sale was therefore void, was correct. No law of. the land authorizes the sale of property for any amount in excess of the tax it is legally called upon to bear. — 4 Mich. 157; 1 Mass. 181; 10 Id. 115; 13 Id. 272; 15 Id. 144; 19 Ohio, 324; Blackwell on tax titles, p. 158 — 166.
    3. The mill tax is required by law to be put in the column for school taxes. Its omission invalidates the sale. — 4 Mich. 140; 5 Mass. 547; 21 Pick. 70; 10 Vt. 506; Blackwell on tax titles, p. 160 —163; 19 Ohio, 324.
    The admission by the Court below of evidence tending to show a practice amongst bidders during the years 1857 and 1858, claiming former tax titles on lands, to announce that it was their land, and upon such announcement, bids by other persons were withdrawn, was correct. — 2 Hammond, 504; Blackwell on tax titles, 396.
    5. The Court did not err in refusing to charge that if the Board of Supervisors adopted the Supervisor’s incorrect footing they thereby made it their own, and that their determination was final and could not be questioned in the suit.
    Such a rule would dispense entirely with the necessity of any valuation being made by the Supervisors. The Board can determine nothing. Their province is to equalize the determinations of the Supervisors throughout the county.
   Christiancy J.

This was an action of ejectment brought by defendants in error, deriving title by inheritance from the original patentee, against the plaintiff in error, who claimed part of the premises under two deeds from the Auditor General on sales made to him at the annual tax sales for 1857 and 1858 for the delinquent taxes of 1856 and 1857, and a part by a like deed on sale made to one Maria Platt (under whom he claimed) at the annual tax sales of 1858 for the delinquent taxes of 1857; all these tax deeds having been duly recorded in the office of the Register of Deeds for the county of St. Joseph (where the lands lie) more than two years before the commencement of this suit.

The plaintiffs below recovered a verdict and judgment in the Circuit Court. Numerous exceptions were taken, and twenty-nine errors are assigned to the rulings of the Circuit Judge, relating to the validity of the taxes and the regularity of the proceedings and sale. And without here specifying the particular objections relied upon by the plaintiffs below to the validity of the tax deeds and the regularity of the proceedings, it is sufficient here to say, that there was no evidence tending to show any defect or irregularities, which would not be cured by section 89 of the act of February 4, 1858 (Sess. L. pp. 185, 186) if the provisions of that section are valid as applied to these sales. This is the first question for our consideration; since, if this section is valid in its application to these sales, it disposes of the case, and none of the other questions presented by the exceptions can properly arise.

We held in Quinlon v. Rogers, 12 Mich. 169, that this limitation of two years from the recording of the deed, was, as applied to the facts .of that case, dependent upon the remedy provided by the same act for testing the validity of tax titles before a Circuit Court Commissioner; and this having been held unconstitutional in Waldby v. Callendar, 8 Mich. 430, that this limitation falls with it.

In the latter case, however, the question arose between the original owner in possession and the claimant under the tax deed out of possession. And it is insisted by the plaintiff in error (defendant below) that he was in the present case in possession under his tax deeds claiming title, during the two years prior to the institution of the suit; and that the real ground for holding the limitation void in Quinlon v. Rogers, was that the original owner being in possession and in the full enjoyment of all he could obtain by suit, the effect of the statute, if allowed to operate, would be to divest him of his property without trial or legal process, as held in Groesbeck v. Seeley, 13 Mich. 329, with respect to the attempted limitation of five years under the 135th section of this act (of 1858); that the defendant below being in possession, and the original owners out of possession, the case does not come within the principle of the decisions cited, and that the statute in this case may have its legitimate effect as a statute of limitation, without conflicting with the constitution or the decisions referred to.

The strength of this position, whatever it may be, must depend upon the fact whether the defendant below was then in possession during the period in question, or whether the evidence tended to show this. The only evidence upon the record upon which the plaintiff in error seeks to establish this fact is the following: After the plaintiffs below had proved their title under the patent, one of them being on the stand as a witness, testified “I was on the land about a year ago” (which would be in the latter part of 1864,) “and saw no evidence of cultivation or enclosure on the same.” “ It being here proposed to , show defendant in possession of the premises claiming title, it was thereupon admitted by the counsel for the defendant, that the defendant took possession of said premises in 1859, and had been in possession thereof ever since, claiming title and exercising acts of ownership over the same. And thereupon the plaintiffs rested their case.”

Whether this admission under the circumstances, is to be treated as evidence in favor of the party making it, and as tending to show his possession for any period prior to the commencement of the suit, is a question upon which I have felt some doubt, and that doubt is not yet entirely removed. The plaintiffs were bound to prove either possession or claim of title by defendant when the suit was commenced. They gave no other proof upon this point except this admission. They therefore received and relied and acted upon the admission, as the record states they “thereupon rested their case.” The general rule is certainly well settled that the whole of an admission must be taken together, though a jury are not • bound to give equal weight to that which operates in favor of the party making it. And I was inclined to the opinion that if the plaintiffs were not satisfied with the admission as a whole, they should not have accepted and relied upon it, but should have resorted to their evidence upon the point. But my brethren take a different view of this question; and as the plaintiffs were about to introduce their evidence of the defendant’s possession and claim of title, when this admission was made, they look upon the admission as apparently made only to obviate the necessity of such proof and to induce the plaintiffs to forego the introduction of the evidence. And as the plaintiffs were only bound to show defendant’s possession or claim of title at the time the suit was commenced, the admission is only responsive to the plaintiffs’ proposition (to introduce proof) so far as it relates to that period; and, so far as it related to possession prior to that time, being no way responsive to tbe plaintiffs’ proposition, nor in any sense an admission, it must thus far be treated as an attempt by the defendant to make evidence for himself. And to give it the effect of evidence of such prior possession would, under the circumstances of this case, operate as a trap upon the plaintiffs. There is much force in this view, and though it has not entirely removed my doubts upon the point, I yield my assent to it as applied to the particular facts of this case.

Defendant’s possession for two years prior to the commencement of suit not being shown, the case must be considered, so far as it relates to the question of limitation, as falling within the principle of the decision in Quinlon v. Rogers. We must therefore consider the other questions presented by the bill of exceptions. In doing this it will not be necessary, and would lead to great prolixity, to consider each exception separately; though we shall endeavor to pass upon all the questions raised.

Testimony was admitted, against defendant’s objection, tending to show that the true footings of the valuations of real and personal estate were different in amount from a statement found on a blank page of the assessment roll claimed to have been made, but not signed, by the Supervisor. That the correct footing of the valuation of real estate for the year 1856 was $5,230 less than shown by such statement of the Supervisor, and of the personal estate $2,245 more than appeared by such statement; and that the Board of Supervisors, in equalizing, had adopted and confirmed the valuations according to such erroneous footing of the Supervisors, and, through their chairman’s certificate on the back of the roll, stated those amounts as the equalized and corrected valuations.

As to the tax of 1857, evidence was likewise admitted against objection, showing or tending to show that the correct footing of the valuations of real estate for the township was $300 more than was shown by a like unsigned statement of the Supervisor on a blank leaf of tbe roll, and of tbe personal estate $10,380 more than shown by such unsigned statement, and that tbe order of tbe Board of Supervisors equalizing tbe valuation of the real estate of tbe township for tbe year, stated that they bad equalized it by adding five per cent to $155,785, (which is less by $330 than tbe correct footing as shown by witnesses, and $20 less than tbe footing of tbe Supervisor); and that they ordered tbe valuation of tbe personal estate to stand confirmed at $31,590, which is tbe amount erroneously shown by the supposed footing of tbe Supervisor.

This evidence seems to have ■ been offered for tbe purpose of showing that tbe Board bad adopted a false valuation, and therefore proceeded on a false basis in equalizing tbe value of tbe real estate and in apportioning the amount of state and county taxes to tbe township. This seems to have been tbe view entertained by the Court.

Proof by witnesses of what were tbe true footings of tbe rolls would seem to be quite immaterial in itself as tbe rolls were in evidence, and it was competent for tbe jury to foot them for themselves, and to avail themselves of any material fact which might appear upon them.

We see nothing in tbe statute, or in tbe nature of tbe services to be performed by tbe Supervisor, making it bis duty to foot up and state tbe aggregate of tbe valuations of real and personal estate, as a pre-requisite to tbe equalization by tbe Board. In this respect tbe charge of tbe Court we think was erroneous. Their power of equalization is confined to tbe real estate. Tbe valuations of tbe personal estate must remain as fixed by tbe Supervisor. Tbe only object to be accomplished by the equalization, is to produce relative equality among tbe several townships in tbe county. And this can be done as well (if not better) by comparing; in a considerable number of instances, separate pieces of real estate of similar qualities, area and value in tbe several townships, as by taking tbe aggregate in each. But the Board have full and complete jurisdiction (not subject to review), over the whole subject of this equalization, and may adopt their own means of reaching the result. And when they have fixed the amount at which the real estate in a township is to be valued for the year, it is conclusive, and cannot be invalidated by showing that they had adopted an erroneous footing or aggregate, of the valuations returned by the Supervisor. The charge of the Court in this respect was erroneous.

It is true that, when the Board in equalizing, make any alteration in the aggregate valuation of real estate, they are required to state upon their records the amount added to or deducted from the valuation in each township (Laws of 1853, ¶. 137, § 27); and as appears by the certificate required by the 29th section to be made by the chairman, this is to be done by adding to or deducting from the Supervisors’ aggregate valuation, a certain percentage. But whatever method they may adopt for fixing the aggregate valuation to be charged to the township, this is easily expressed in the form of a percentage.

The chairman is (by the 29th section) also required to certify that the Board “have determined the aggregate value of the taxable real and personal property in the township to be” a certain stated amount; and this involves the necessity of footing the personal estate as valued by the Supervisor, and of the real estate at the amount determined by the equalization.

The Board are also, by the 31st section, to apportion the amount of state and county taxes among the several townships in proportion to the amount of taxable property therein as equalized by the Board; and, by section 32, such amounts are to be charged to the respective townships. And in this view, as affecting the amounts fo be charged and apportioned to the respective townships, an erroneous footing of the valuations of personal property as appraised by the Supervisor, or an estimate of the aggregate valuation of the real estate, different from that at which it was equalized, might become material by increasing the quota of tax charged to the township, and consequently the amount to be paid by each tax payer. But any error of this kind which should not have the effect thus to increase the tax, and especially an error which should reduce it below its due proportion, can constitute no injury or grievance to the tax payer and cannot be set up by him as a ground for invalidating a sale of his property for the tax. In this respect the charge given by the Court at the request of plaintiffs below was erroneous, as it made the adoption of an erroneous aggregate valuation by the Board, as a basis for the apportionment to the township, vitiate the tax, without reference to the question, whether it had increased or diminished the taxes upon the plaintiff’s property. In a subsequent portion of the charge, however, it was declared that such errors would vitiate the tax rolls, “if the jury should find such errors to have existed to an extent to affect the substantial rights of the tax payers injuriously.” “By this” said the Judge, “I do not mean that you should find slight fractions, or small errors of 5 or 10 cents (meaning in the aggregate sum apportioned to the township) vitiates the tax roll, provided the general basis is correct, and ordinary care used in making the arithmetical calculations.” And in that portion of his charge in reference to the statute presumption in favor of the validity of the tax deeds, he told the jury that, to overcome the presumption, “the plaintiffs must show some substantial error affecting injuriously the owner of the land.” These portions of his charge might have cured the error last mentioned, if he had not erroneously refused to charge as requested by the defendant, that “the statute did not require the Supervisor to make any footing as aggregates of the valuations of real estate upon his roll before it was submitted to the Board for equalization and if he did so and made it incorrectly, and the Board adopted sucb footing, they thereby made it their own, and their. determination was final, and cannot be questioned in this suit; and that although the Supervisors may have made an erroneous footing of the valuation of the personal property in the township, yet if this error in the footing made the tax to be borne, by the parcels in question lighter than it would otherwise have been, then these plaintiffs could not complain; and it would not invalidate the taxes in question.” These refusals, in connection with the charge as given were calculated to confuse the minds of the jury and to induce them to believe that if the strict requirements of the law had been violated, in the adoption by the Board of an erroneous footing, in the apportionment of the taxes it would vitiate the taxes and render the title void at all events.

But the evidence of these erroneous footings and their adoption by the Board, so far from tending to show that the taxes had been thereby increased, actually tended to show they had been diminished by this error, below their just proportion. We have already said that, as to the real estate, the determination of the Board, as to the amount to be charged to the township was final, whether the data upon which they determined the amount were correct or not. The question therefore whether the • taxes were increased by the erroneous footing, must be confined to the personal estate. If, in footing up the personal valuations, they made the amount larger than it really was, as shown by a correct footing, then the aggregate sum charged to the township and to be raised upon all the taxable real and personal estate, would to that extent be too large, and the tax on these lands, in that proportion, unduly increased; but if, by any error, the amount of the personal estate adopted was too small, then, the amount of tax apportioned to the township, and consequently the proportion of it assessed upon these lands, would be, by so much, less than it ought, in justice to the other townships, to have been. Now, tbe evidence introduced by the plaintiffs tended to show that the Board adopted an estimate of the aggregate of the personal property for 1856, which was too low by $2,245, and for the year 1857 too low by $10,380. These errors, if they existed, must have lessened the taxes charged to the township, as well as the taxes upon these lands.

The plaintiffs below were allowed to prove under objection, that at the tax sales for 1857 and 1858 (the years in which the lands in question were sold), when a tract of land was cried for sale, bidders would frequently announce, “that is my land”; and that, upon such announcement, bids were frequently withdrawn, and the party thus claiming it, by tax title or otherwise, would be allowed to take it at the amount for which it was offered, the tax, interest and charges; but that sometimes “bidders would get spunky and bid down.” Plaintiffs were also allowed to show, that without any express words, there was a kind of tacit understanding among old bidders, who had attended the sales for years, not to bid against each other, and to look upon new bidders as outsiders, with whom they were more inclined to compete, and that the defendant was not, at the sales in question, looked upon entirely as a new bidder, having bid on lands once or twice before, though he was not looked upon as an old bidder. And that the old bidders sometimes were allowed to withdraw their bids in favor of each other after part of the land had been struck off, and the party in whose favor it was withdrawn would be allowed to take the whole land for the amount due upon it. This' evidence was not offered to show, and it did not fairly tend to show, that the defendant below or Mrs. Platt, through whose purchase he derived title to one of the lots, was privy to any arrangement or understanding of this kind, or assented to it; nor did it appear that any bid had thus been withdrawn upon these lands. This evidence was allowed to go to tbe jury, tbe Court charging, at the request of the plaintiffs, that “all combination or collusion between bidders, at a sale of lands for delinquent taxes, which has a tendency to prevent free and open competition, is fraudulent in law; and, if any such combination or collusion existed at the sales of 1857 and 1858, which had a tendency to prevent free and open bidding on tire lands in question, then such sales were void; and all the evidence on that point might be taken into consideration, in determining such combination or collusion; and if, but for such combination, a lesser quantity of land would have sufficed to raise the tax, interest and charges in the case in question, then the sale was illegal and the deeds void.” The Court refused to charge that “even if the jury should‘find that there were parties in attendance as bidders, who, by agreement, withdrew their bids in each others favor, that would not affect the sales in question, unless the person bidding upon the parcels in suit was privy to such agreement; and the burden of showing such privity is upon the plaintiffs.” This charge and refusal taken together assumed that such an understanding or arrangement among other bidders, would be fraudulent, and vitiate the sales, not only as to the parties privy to it, but as to the defendant who was ignorant of it, and purchased in good faith without reference to it, if a jury should be of the opinion, that but for such understanding among other bidders, others might have bid upon the lands, or for any other reason a- less quantity of the land might have been sold.

We do not understand this to be the law; and, under such a rule, no one would be safe in bidding at tax sales, which it is the policy of the law to encourage. He was not to be affected by any such combination or understanding among others to which he was not a party, and of which he was ignorant.

Under the law of 1853, sec. 36 (until the amendment of 1859, Sess., L. p, 37), the state, county and township taxes were blended together in a single column, with nothing on the face of the roll to distinguish the respective amounts — the school, library and school house taxes in another column, and the highway taxes in another; but the warrant for collection was required to “specify particularly the several amounts and purposes for which said taxes are to. be paid into the township and county treasuries respectively,” and it was only by this, that the several amounts of state, county and township taxes could be distinguished, and this only in the aggregate, and not in individual cases. The same was true of the school, library and school house taxes.

The roll in the present case for 1856, stated the taxes on one parcel of these lands as follows:

This state, county and township tax is admitted to be one dollar more than it should have been, according to the valuation and the amount to be raised; and some of the testimony tended to show it too much by $1.04. The school tax of $1.42 was proved to have been the due proportion which the valuation of this tract ought to pay, of a sum of twenty-two dollars, district school tax to be raised; so that the one mill tax, required to be assessed for township, library and schools, by section 2350 Comp. Laws, was not placed in the column of school taxes, and in fact, did not appear by the roll to have been assessed at all. This tract was valued on the roll at $1,000, and one mill tax on this would amount to one dollar. And from these facts alone it was urged in the Court below, and is insisted here, that the jury were authorized to find that the Supervisor had, in fact, assessed the mill tax, and included it in tbe column of state, county and township taxes. But we think the jury were not at liberty to find that the Supervisor had cured one violation of the law by committing another There was no evidence tending to show any intention or attempt to assess the mill tax at all, either upon this or any other land in the township; nor whether a similar excess existed in the column of state, county and township tax upon the other or any of the other lands upon the roll; and we do not think the statute, requiring it to be placed in the column of school taxes, is so far directory as to permit the amount to be blended with that of state, county and township taxes; and especially where nothing appears upon the roll to indicate the intention thus to include them. This provision was, we think, intended, among other purposes, for the benefit of the tax payer, to enable him to distinguish, to this extent, the different species of taxes he should be called upon to pay and their respective amounts.

We think the Court took the correct view of this provision.

TAXES OP 1857.

The amount of township taxes for this year, as appeared by the warrant attached to the roll, was.............$245 04

And other amounts to be paid to various persons........ 150 00

Total..........................................$395 04

The certificate of the township clerk in reference to the amount of township taxes to be raised, was given in evidence, stating that two hundred dollars had been voted for township purposes for the year at the annual township meeting. No other certificate to the Supervisor authorizing any other township tax was shown, nor was any evidence given showing the former existence and loss of any other certificate; nor did it appear from the records of the township, kept by the clerk and introduced in evidence, that any other sum had been ordered to be raised. But at the foot of the $200 certificate, and below the signature, was a memorandum in pencil as follows: “voted by the Board, $17.” The Supervisor was dead; and a paper from his office was offered in evidence, of which the following is a copy:

“Damages by reason of laying out highways amount to $150, for 1857, to be paid as follows, to wit, (naming persons and amounts and footing up)................. $150 00

Jurors’ and Commissioners’ fees.......................... 28 00

“ As certified by town clerk........................ $178 00

(Signed.) “D. OAKES,

Supervisor.'1'

This $28 with the $17 on the pencil memorandum making $45, which with the $200 certificate would make $245 (within four cents of the amount stated as township tax in the warrant attached to the roll).

But, allowing this $45 to be added to the $200 as township tax, the taxes in the column of state, county and township taxes on one parcel of this land, it is admitted, were still too much by fifteen cents, and, on the other, too much by six cents, according to the valuations and the amount to be raised.

The Court charged the jury that, if they should find this excess of taxation, the sale was void, and the purchaser could acquire no title under it. The like charge was given as to the excess of one dollar claimed to exist in the taxes of 1856, already noticed.

We think this charge was correct. The authority to tax is fixed by the statute, and must be strictly pursued. The Supervisor has no authority to tax at his own discretion, but can only assess such taxes as are properly certified to him for that purpose and such as the law makes it his own immediate duty to assess without such certificate. Any material excess, therefore, in the State, county or township tax, all-of which are blended together in- one column and indistinguishable, will render all the taxes in that column void; and any sale for taxes, of which these form a part, must also be void. And, though the excess in this case is small, we cannot, without departing from the almost uniform current of authorities, disregard it. If the maxim, “ cle minimis non curat lex,” can have any application to an excess of this kind, it must be applied with great caution. Taxes upon the several individuals or the several pieces of real estate in a township, are generally imposed in small sums, which, however, in the aggregate, may amount to a very large sum.

An excess of six cents, in a tax of one hundred dollars, might perhaps be disregarded with greater propriety than if the tax was but one dollar, or (as in this case) $5.49 in one instance, and $6.73 in the other. But the question is one of the jurisdiction of the Supervisor to assess the tax and of the excess of a statute authority in assessing it; and while iti may be safe to say that an excess of a single cent would be too trivial for notice, we do not think we are authorized by the authorities to disregard the excess shown here.

There being still this excess in the taxes of 1857, after allowing the item of $17 in the pencil memorandum and the $28 stated in the memorandum signed “D. Oakes, Supervisor,” the point, whether these memoranda were admissible, does not arise unless the item of $37.39 for expenses of laying out a highway on the township line, to be presently noticed, can be presumed to have been duly certified by the clerk to the Supervisor, for taxation in addition to the certificate of $200.

But it is insisted by the plaintiff in error, that, inasmuch as the tax deeds were, under the statute, prima facie evidence of the regularity of all the proceedings and of title in the purchaser, it was not sufficient for the plaintiffs to show the certificate of the township clerk of $200, .voted for township purposes, but that other sums may have been properly certified; and that the plaintiffs were therefore bound to go further, and show, either that township charges sufficient to amount to the tax, did not exist, or, if they existed that they were not in fact certified. And the plaintiff in error, in this connection, relies upon the facts, 1st. That the excess in the township taxes for the year appears only by the warrant attached to the roll, designating how and for what purpose the sums raised are to be paid over — insisting that this is not the proper evidence of that fact; that it is only for the convenience of the collector, and not, therefore, conclusive; as the law makes the actual disposition, and no mistake or perversion of the lawful disposition in the warrant can change this legal disposition. And, 2d. He relies upon the fact shown by him from the township records, that the amount of $37.39 of expense to’ the township had been incurred in 1857 as the proportion of this township in laying out a highway on the township line — that these expenses were entered on the township records under the date of November 28th, 1857, and after several other entries on the same page headed with that date; though it was shown by the highway book that the highway was laid out in May, 1857. And this amount, it was shown» would, if duly apportioned, amount to a fraction over fifteen cents upon one piece of this land, and a fraction over six cents as to the other. And it is claimed that, until the contrary is shown by proof, this must, under the presumption raised by the statute, be presumed to have been certified by the clerk to the Supervisor.

We do not think the position of the plaintiff in error can be maintained upon either of these grounds. We adhere to the rules in reference to the statute presumption laid down in Lacey v. Davis, 4 Mich. 140, that the evidence, .to overcome the statute presumption of regularity, must be such as will exclude any reasonable presumption of regularity; and in Amberg v. Rogers, 9 Mich. 332, that, till a reasonable presumption to tbe contrary has been raised by proof, we are to presume that everything has been done which the statute authorized to be done, to render the sale valid; and in Wright v. Dunham, 13 Mich. 414, that, to overcome the statute presumption, it is not enough to show facts from which an inference of irregularity may be drawn, if they are not inconsistent with the existence of other facts which would establish the correctness of the proceedings — as this rule was applied to the facts of that case.

But we do not think' the rule as stated and applied in any of these eases will sustain the position of the plaintiff in error on either of the grounds urged or upon any other ground.

First, as to the objection that the excess of taxation for 1857 only appeared by the warrant attached to the roll, etc., it is true that as to the excess of $45.04 township tax above the $200 certified by the clerk, this only appeared by the warrant; but even admitting the correctness of the $45.04, the excess in the collective amount of state, county and township taxes already mentioned of 15 cents as to one, and six cents as to the other parcel, still existed. The excess, therefore, upon this theory of the case, must have been in the state or county tax or both; and the amount to be raised for these purposes was proved by the certificate of the clerk of the Board of Supervisors. Again, though it may be true, that an erroneous statement in the warrant of the amounts to be paid over for the particular purposes stated, might not invalidate the taxes; yet, as the statute {sec. 36, act. 1853) requires the warrant to “specify the' several amounts and purposes for which said taxes are to be paid into the township and county treasuries respectively”; this specification in the warrant, must be considered as good prima facie evidence at least, of the amounts assessed big the Supervisor for the purposes indicated. And, as to this feet (the amount assessed by the Supervisor) it would seem to be the primary evidence. The primary evidence of the amount authorized to be raised, was, as to state and county taxes, the certificate from the Board of Supervisors, and, as to the township tax, the certificate of the township clerk which was produced, and no other was shown to have existed; nor was any proper foundation laid for secondary evidence.

And as to the item of $37.39, above mentioned, it is sufficient to say, that if the $4=5 mentioned in the pencil memorandum and that of D. Oakes, Supervisor, was included, as claimed by plaintiff in error, then this item of $37.39 could not be included without contradicting the warrant, which we have already said was prima facie evidence at least of the amount actually assessed as township taxes by the Supervisor; and the statute presumption of regularity we think was not intended to overcome such prima facie evidence of irregularity. In other words, the evidence furnished by the warrant (though held to be only prima facie) cannot, in the absence of proof, be considered consistent with the further fact claimed, that the amount of taxes actually assessed by the Supervisor for township' purposes was greater by $37.39 than stated in the warrant. But beyond this, and as a broader ground of objection to the position of the plaintiff in error, the statute (sec. 26 of the act of 1853, Comp. L. § 807) made it the duty of the township clerk, on or before the second Monday of October, to deliver to the Supervisor “a statement of money to be raised therein for township purposes, and the amount voted for the maintenance and support of common schools and the township library, stating the amount of each as well as the aggregate amount.”

This would seem to contemplate but a single statement or certificate for the whole of the taxes for these purposes for the year; and the proof of one certificate of the clerk stating only the amount of two hundred dollars to be raised for township purposes, can hardly be said, in the absence of all proof, to be consistent with the idea that another certificate had been made stating a different or a further amount; and, must be held to raise a strong presumption at least, against such further or other certificate. But again, it is fair to presume from the date of the entry in the township record, that this amount of $37.39 had not been audited and allowed as a township charge until the 28th day of November; and the cleric’s certificate or statement was required to be made on or before the second Monday of October. And, by the 36th section, the corrected assessment roll, with the taxes for the year annexed, was required to be delivered to the township treasurer on or before the 15th day of November; and “before the Supervisor shall deliver such assessment roll and tax list to the township treasurer, he shall carefully foot up the several taxes therein levied, and shall give to the township cleric of his township a statement thereof; and such township cleric shall immediately charge the amount of siich taxes to the township treasurer.”

Though it is possible that these provisions, as to the time within which these several acts are required to be done, might be treated as so far directory, that such acts or some of them might be good as to the public, though done after that day; yet the officers would be hable to a prosecution for a misdemeanor for the neglect. And we do not think the statute presumption of regularity is to be carried to the extent of presuming such neglect, when it involves a criminal offense, and the further presumption that the duty was afterwards performed. If these duties could have been performed after the time fixed, a certificate would still be required and the presumption against such certificate arising from the proof of the $200 certificate still remains.

We think the Court correctly charged the jury that, “although the holder of the tax title may repose upon his deed, until the opposite party introduces such evidence as, in the absence of all counter testimony, will afford reasonable ground for presuming the proceedings anterior to the deed to be irregular and insufficient to sustain the title; yet when this is shown, the burden of proof is thrown upon the holder of the tax title, and the common law rule so far restored.” And we think there was no error in refusing to charge as requested by defendant below, that “if the jury should find the charges for laying out the highway in question (the $37.39), properly to be borne by this township, were assessed upon the roll of 1857, the jury might rightfully presume that the proper steps were taken to authorize the Supervisor to assess it.” We see no evidence from which they could find that this was assessed, and no ground for presuming that, if assessed by the Supervisor, the proceedings were regular or authorized by law.

Nor do we think the Court erred, under the facts in this case, in refusing to charge, as requested “that (to invalidate the deeds) it was not sufficient for the plaintiffs to prove facts from which an inference of irregularity may be drawn if such facts are consistent with the existence of other facts which would make the proceedings regular.” There was, we think, no state of facts rendering this special branch of the general rule applicable to the case. All the case required was the general rule, which, in answer to this request, he again repeated, that, “the deeds from the Auditor General were prima facie evidence of title in the defendant; and all presumption of regularity in all the proceedings up to and including the sales in question were in favor of the defendant; and such presumptions in favor of the sufficiency of defendant’s title must prevail until the plaintiffs show facts inconsistent with such presumption.” He further correctly charged in reference to this point that to overcome this presumption, plaintiffs must show some substantial error affecting injuriously the owner of the land, in the raising, return, assessment and collection by sale for the taxes levied on the land.

But there is oue point nearly allied to that of the excess of taxation in which we think the Court erred. The taxes of one parcel appeared upon the roll as follows:

“State, county and township taxes, $3.74; school taxes, $1.75; total taxes, $5.59.” Here was an obvious excess of ten cents in the footing of the items which were set forth .in the same line on the face of the roll. These items were, as readily seen as the total, and enough appeared on the face of the roll to show that the total was intended to be the sum of these items. This, being a mere error in footing, was corrected by the county Treasurer, and this error of ten cents not included in the sum for which the land was sold. But the Court, at the request of the plaintiffs, charged that it was “the duty of the Supervisor to enter the aggregate of the state, county, township, school and highway taxes on their rolls; and if it should appear that $5.59 was entered as the aggregate of the taxes on this parcel, the law was not complied with, if the jury should find from the evidence that the aggregate was $5.49”; thus clearly intending that the sale would in such event be void. It is true the law was not literally complied with, but the jury should have been told that an obvious error thus made and thus corrected, and which could not injure the plaintiffs, should be disregarded; as the spirit and object of the law were complied with. The charge as given was inconsistent with his charge upon another point which we have already said was correct, that to invalidate the deed, an error must be shown affecting injuriously the owner of the land.

The charge in reference to the mode in which the lands were offered for sale by the Treasurer, was clearly in favor of the defendant, and virtually declared that the mode adopted, as shown by the evidence, was correct. It need not, therefore, be noticed here.

For the errors above pointed out the judgment must be reversed, with costs and a new trial awarded.

Campbell J.

I concur in the various results arrived at by my brother Christiancy; and I also agree with all that he has laid down in his opinion, except as it allows an inference that the question of possession may have a bearing upon the validity and operation of the statute giving conclusive force to certain deeds. The case of Quinlon v. Rogers was not decided on any such basis, but held the law absolutely invalid, no such point being regarded: And I think the full effect of that decision should be allowed, as the statute in very plain terms purports to act on rights and no't on remedies, and to give to irregular proceedings to divest estates the same force as if they were in every sense due process of law. Such an effect it is universally conceded cannot be reconciled with constitutional restrictions in favor of private rights, and any other interpretation fails to conform to the manifest design appearing in the law.

Cooley J. concurred with Campbell J.

Martin Ch. J. did not sit.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    James Wilbur v. Luther J. Flood.

      Witness: Cross-examination: Record of Conviction. The cross-examination of a witness is not confined to matters in issue, hut may include such collateral questions as will enable the jury to obtain an insight into his character and history, and thus to judge of his credibility; and the Court has power to guard against the abuse of this right when necessary.
    The fact that a witness has been confined in a State prison may be inquired into upon, such cross-examination, without producing the record of his conviction ; as a party cannot be expected to know in advance who will testify, or what may be the character of the adverse witnesses; and might otherwise have no adequate means of testing their credit.

      Rescission of contract: Reasonable time: Replevin, Affidavit: Service of writ, bef07'e tende?\ ‘Where lancl has been conveyed in exchange for personal property, and the grantee seeks to repudiate the bargain for fraud, he cannot reclaim, his goods without tendering a reconveyance; and a mere offer to “tradeback,” without such conveyance or tender, is no rescission.
    Where he made affidavit and sued out a writ of replevin for the goods, before making tender of a deed, although it was served after such tender, it was held his suit was premature, as the cause of action in replevin must exist when the affidavit is made.
    Any unnecessary delay to rescind such a contract will cut off the right of the party complaining of the fraud; and in the present case a delay of fifteen months was held unreasonable.

      JBeard July 10th.

      Decided July 11th.

    Error to St. Joseph. Circuit.
    This was au action of replevin to recover the possession of certain chattels which Flood had exchanged with Wilbur for lands, he, Wilbur, had failed to convey. Judgment was rendered for the plaintiff.
    The case was removed by writ of error and bill of exceptions. - The facts and rulings of the Court below are stated in the opinion.

      H. F. Severens, for plaintiff in error.
    1. It is competent to ask a witness on cross-examination whether he has ever been confined in the State Prison.
    It is obvious that the purpose of such a question is to discredit the witness before the jury, by showing him to have been guilty of some criminal offense. It is not the imprisonment but the guilt that fixes the stain. This can only be shown by the record of conviction. — 1 Oreenl. Ev. § 457; 24 FT. Y. 298; 46 Bari. 127.
    2. Before the plaintiff could bring replevin, he must rescind the contract. This, it is claimed, on the part of the plaintiff, was done, so far as it could be done by Mm, by tendering the reconveyance to Wilbur. But this was not done until after the issuing of the wait. A plaintiff cannot get out his wait, and then make the cause of action for which he sues. The suit is commenced by the issuing of the wait. — Oomp. L. §§ 4108, 5010; 1 Doug. 330; 3 Mich. 531; 10 Id. 508.

      3. The testimony of the plaintiff showed that he ascertained the facts on which he claimed to rescind, in June, 1864, and also that he did nothing toward rescinding until September, 1865 — fifteen months. Assuming these facts to be true, the Court should have charged as matter of law that the plaintiff did not rescind within a reasonable time. — 4 Mich. 508; 2 Pars. on Gont. 190 and n. i., 3d ed• and 277-8-9 and notes; 2 Denio, 136 ; 14 Bari. 594; 21 Id. 82; 6 Mete. 68, 74; 9 Gill. 156; Ghitty on Gont 814, 10th Am. Pd.; 7 Blaclcf. 501.
    If the jury found the facts assumed in the request, they presented a question of law upon which direct instruction should have been given. — 4 Mich. 336; 5 Id. 501.
    If the question was a mixed one of law and fact, the request was proper.
    4. If it is not correct to say that this question of reasonable time was one of law, then there was error in charging that the plaintiff did tender the reconveyance within a reasonable time. The question, if one of fact, was for the jury. See authorities cited under 3d point, and 3 Greenl. 30; 4 Post. IV. H. 282.
    The mere “offer to trade back,” and refusal on the part of defendant was very far short of attempting a rescission.

      Soule, Mason & Allison, for defendant in error.
   Campbell J.

An action of replevin was brought by Flood against Wilbur to recover certain chattels which Flood had exchanged with Wilbur for lands which the latter had failed to convey, having substituted a different description. The facts as claimed were in substance these. In exchange for the horses, wagon and harness, which are the subjects of this suit, Wilbur was to deed a clear title to the northeast ten acres of a certain forty acre lot which he said he owned. About the beginning of June, 1864, Wilbur gave Flood a deed of an undivided fourth, of the forty acres, instead of the specified ten acres, and it was four or five days before the latter discovered the error, when he “offered to trade back, and Wilbur would not do it.”

No further steps appear to have been taken until this suit was commenced. The affidavit was made September &d, 1865, and the wilt issued September 5th, and delivered to plaintiff’s attorneys. On or about the 18th of September, a clerk of the attorneys went with the Sheriff to Wilbur, and tendered him a deed of the premises which he had conveyed do Flood. Upon his refusal to accept it, the clerk gave the writ to the Sheriff, who served it.

Defendant was sworn as a witness in his own behalf, and controverted the plaintiff’s ease. Upon cross-examination he was allowed, against objection, to be asked whether he was ever confined in the State Prison, and an exception is taken to this ruling. It is claimed to have been erroneous, as an attempt to discredit the witness by improper means, and to prove by parol what rests in record evidence. We do not think the objection tenable. It has always been found necessary to allow witnesses to be cross-examined, not only upon the facts involved in the issue, but also upon such collateral matters as may enable the jury to appreciate their fairness and reliability. To this end a large latitude has been given, where circumstances seemed to justify it, in allowing a full inquiry into the history of witnesses, and into many other things tending to illustrate their true character. This may be useful in enabling the court or jury to comprehend just what sort of person they are called upon to believe, and such a knowledge is often very desirable. It may be quite as necessary, especially where strange or suspicious witnesses are brought forward, to enable counsel to extract from them the whole truth on the merits. It cannot be doubted that a previous criminal experience will depreciate the credit of a witness to a greater or less extent, in the judgment of all persons, and there must bo some means of reaching this history. The rules of law do not allow specific acts of misconduct or specific facts of a disgraceful character to be proved against a witness by others. He may be proved by record evidence to have been convicted of infamous crimes, but not to have done other infamous deeds, nor to have undergone personal disgrace. And even as to previous conviction of infamous crimes, the rule is seldom of any great service, because no one can be expected to know in advance what witnesses may appear, nor what may have been their history. Unless the remedy is found in cross-examination, it is practically of no account.

It has always been held that within reasonable limits a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. The Court has a discretion as to how far propriety will allow this to be done in a given case, arid will or should prevent any needless or wanton abuse of the power. But within this discretion we think a witness may be asked concerning all antecedents which are really significant, and which will explain his credibility, and it is certain that proof of punishment in a State prison may be an important fact for this purpose. And it is not very easy to conceive why this knowledge may not be as properly derived from the witness as from other sources. He must be better acquainted than others with his own history, and is under no temptation to make his own case worse than truth will warrant. There can with him be no mistakes of identity. If there are extenuating circumstances, no one else can so readily recall them. We think the case comes within the well established rules of cross-examination, and that the few authorities which seem to doubt it, have been misunderstood, or else have been based upon a fallacious course of reasoning, which would, in nine cases out of ten, prevent an honest witness from obtaining better credit than an abandoned ruffian. We are satisfied there was no error in admitting this testimony.

The Court was also asked, but declined, to charge that if the writ in this cause was issued before the reconveyance to Wilbur was tendered, the plaintiff could not maintain his action. The Court also declined to charge that plaintiff was bound to rescind within a reasonable time after he discovered the facts complained of, and that the period between June, 1864, and September, 1865, was not a reasonable time; but charged that if he offered to trade back within four or five days after discovering the mistake in the deed, and defendant refused, the tender of a reconveyance in September, 1865, was within a reasonable time.

In all these respects we think the Court erred. A mere offer to trade back is no rescission of a contract. The party aggrieved must do what he can to place the other in statu quo, and where it is possible this can only be done in cases like the present by a return, or a tender of a return, of what he has received in exchange for what he has given. In' the case of laud, this can only be done by conveyance. And the property cannot revest Avithout such an attempt to rescind. Under our statutes the affidavit is essential before a writ of replevin can be served, and it must show a wrongful detention of plaintiff’s property. But till the deed was tendered plaintiff could have no property in the chattels, and the suit was prematurely brought.

But there was also error in respect to the ruling concerning diligence. It is an inflexible rule that a party complaining of fraud must be guilty of no unreasonable delay in repudiating and getting rid of his contract. Where his object is to rescind it and reclaim his property, he is bound to lose no time unnecessarily in his action to that end. While no particular period can be laid down for all cases, yet it is quite well settled that no unnecessary delay can be permitted; and in the absence of some proof to excuse it, any considerable lapse of time must be conclusive evidence of neglect. Where such proof is introduced, each case must depend upon its own circumstances. "It would be absurd to suppose that a party could not prepare and tender a deed in his own neighborhood in a few days, under any ordinary circumstances. And a delay of fifteen months in such a case can only be regarded as very great negligence, which must preclude the party from treating the contract as rescinded, and the property as having become restored as if no contract had ever been made.

The judgment below must be reversed with costs and a new trial must be.granted.

Christiancy and Cooley JJ. concurred.

Martin Ch. J. did not sit.


author: Christianoy J.

text:
    Chas. Hensche v. The People.

      Effect of withdrawal of plea in Criminal Cases, for the purpose of making a motion to quash. A party who had pleaded "not guilty” to an information for burglary, was allowed to withdraw his plea, for the purpose of making a motion to quash. The motion was overruled, and, without having again pleaded, the party was convicted after a trial on the merits.

      Held, that the conviction was valid. If the defendant failed to plead over, it was the duty of the Court to enter a plea of not guilty for him, and the failure to enter it did not affect his rights, and was only a defect of form, which, under the statute — Comp. L. 6013 — will not authorize a reversal of the judgment.

      Heard July 9th.

      Decided July 11th.

    Error to Ontonagon Circuit.
    Plaintiff in error pleaded not guilty to an information for burglary.
    Eor the purpose of making a motion to quash, leave was granted to withdraw his plea of not guilty. The motion was overruled, and the trial proceeded. No formal renewal of the plea was made. The jury found a verdict of guilty; and sentence was passed.
    The principal error assigned was, that there was no plea or issue in the case.
    The facts are stated in the opinion.

      A. W. Buel and G. V. N. Lothrop, for plaintiff in error.
    There was no plea or issue in the case, and the judgment was therefore a nullity. — 3 Wis. 820; 1 Car. Law Repos. 510.
    A plea or answer to the information was requisite at common law, and as to proceedings upon arraignment and plea generally, see 1 Chit. Or. L. 414; Whart. Am. Or. L. 530; Rose. Or. JSv. 224; 1 Arch. Or. PI. & Pr. {Wat. notes) 350.
    The whole theory of an American criminal trial and of the practice thereon supposes a plea in the case, and for all legal purposes an issue, though the old technical and formal joinder has been dispensed with.
    The statutory provision — 2 Oomp. L. § 6038 — directing that the court shall order a plea of not guilty to be entered when defendant refuses to plead, not only assumes there must be a plea, but requires it.
    So held on a similar statute. — 1 Ala. 655.

      Wm. L. Stoughton, Attorney General, for the People.
   Christianoy J.

Plaintiff in error whs arraigned upon an information charging Mm with the crime of burglary, to which he pleaded not guilty, as the record states, “without prejudice to his rights, and with leave to withdraw said plea.”

On the same day the defendant made a motion (whether before or after the arraignment does not appear) to quash the information, for several reasons set forth in the motion. The court thereupon adjourned until the next day, when the defendant was allowed to withdraw his plea; and the motion to quash was taken up, and, after argument, denied, and the cause was ordered to proceed. A motion was then made by the defendant for a continuance, and an affidavit in support of the motion was read and filed. The defendant’s counsel and the prosecuting attorney were heard upon this motion, and, after argument, the motion was denied.

A jury was then called and sworn in the cause, to which no objection appears to have been made; and the court thereupon adjourned till the next day, when, as the record states, “the jury, after having heard the proofs and allegations of the parties, the argument of counsel, and the charge of the court, retired from the bar thereof, under charge of Duncan Ross, an officer of the court, duly sworn foi" that purpose, to consider of their verdict to be given; and, after being absent for a time, returned into court, and say, upon their oath, that they find the said Charles Hensche guilty in manner and form as the people have in their information in this cause, charged.” The court thereupon adjourned till the next day, when a motion was made by defendant to set aside the verdict and for a new trial, on five distinct grounds, but making no objection on the ground that defendant had not pleaded to the information, or that no plea was entered.

The record does not show what action was had upon this motion; and, on the same day, a motion was made by defendant in arrest of judgment, for several reasons going to the propriety of the information and the prosecuting attorney’s right to file it, mid also “because the trial was had, and the verdict of the jury thereon was rendered, upon no plea of the prisoner, or issue in the case; but without any plea and without any issue.”

The record does not inform us of the action taken upon this motion, except by the inference of its denial to be drawn from the entry of the judgment, or sentence by the Court, on the same day.

From tlie facts appearing upon the record, the substance of which is above stated, we think it evident that the defendant, the prosecuting attorney and the Court, treated the withdrawal of the plea as merely temporary, for the purpose only of allowing his motion for quashing the information to be heard. And when that motion was disposed of, the Court and the parties considered and treated the plea as again restored and standing in foil force.

The trial appears to have been had, in all respects, in the same manner, as if the plea had been again entered, or as if no motion to quash had been made, and the plea had stood as when originally interposed. And we think it entirely clear, from the record, that the defendant has had the same full benefit of the plea as if it had been again, formally entered.

To make the proceedings regular in form, however, the defendant should again have put in his plea of not guilty, or, neglecting to do so, as he did not “confess the information to be true,” the Court should, under the statute — Comp. L. §6038 — have ordered the plea of not guilty to be entered for him.

The object of this statute was to give to a defendant the benefits of a plea of not guilty, though he should refuse or fail to plead; an object which has been folly accomplished in the present' case, though the plea was not again formally entered". And the Court might, when the objection was first raised, or at any subsequent time, order the plea to be entered nunc pro tunc. Under the facts of this case it was a matter purely formal, and cured by § 6043 Comp. L. which provides that “No indictment shall be quashed or deemed invalid, nor shall the trial, judgment or oilier proceedings thereon be affected,” by reason of any defect or imperfection in matters of form which shall not tend to the prejudice of the defendant.

There is no error in the record, and the judgment of the Circuit Court must be affirmed.

Cooley and Campbell JJ. concurred.

Martin Oh. J. did not sit in this case.


author: Cooley J.

text:
    Martha B. Vickery v. Clara Beir et al.

      Foreign Admimstn'ator: Hffect of plea of general issue when suit is revived by Administrator: Burden of proof. After a plea of the general issue the plaintiff’s death was suggested of record and the cause revived in the name of an administratrix.
    The defendant was permitted to show, under objection, that the administration was granted in another state.

      Held, that the force of a grant of administration is confined to the jurisdiction granting it; hence that a person appointed administrator in another state can not, as such administrator, bring suit in this state.

      Held also, that, although a plea of the general issue in a suit by an administrator is an admission of the plaintiff’s right to sue, the same rule does not apply where the cause is revived in the name of an administrator after the plea has been filed. In such a case the representative character of the plaintiff is in issue in the trial, and the defendant may disprove it.

      Held furthen\ that proof of the party’s death and of the appointment of an administrator should be presented to the court and placed on file in all cases where a suit is revived by administrator. The proceeding to substitute the administrator is entirely a matter of statutory regulation, and its effect upon the rights of parties can not properly be extended beyond what the statute has provided on any mere fanciful analogies to the common law practice.

      Heard July 10th.

      Decided July 11th.

    Case made after judgment, from Livingston Circuit.
    This was an action of assumpsit commenced by one John Vickery, to recover the amount due ujion certain promissory notes.
    The defendants pleaded the general issue.
    After issue joined, Vickery died. His death was suggested on the record, and the cause was revived in the name of the plaintiff as his administratrix.

      The defense was that the plaintiff, being a foreign administratrix, could not maintain the action.

      G. V. N. Lothrop and M. B. Wilcox, for plaintiff.
    1. This action being upon a promise to the plaintiff’s intestate, her title is not in issue. If the defendant would controvert her title, he should put it in issue by special plea. — 1 Ohitty on Plead. 488-9; 1 Saund. Plead, and Ev. 1125, 1126; 5 B. and 0. 491; 2 Greenl. Ev. §338.
    And unless so put in issue, it will be deemed to have been admitted. The general issue is a conclusive admission of her title to the character in which she sues. — 11 Mass. 313 — 16; 2 Dali. 100; 3 Day, 303; 2 Ld. JRayrn. 824; 1 Salh. 37 — 38; 5 B. and 0. 491; 1 Baily, 546; 2 A. K. Marsh. 355; 4 Porter, 441; 2 Brevard, 59; 1 Scam. 64; 2 Id. 63; 31 Me. 46.
    2. The rule is the same whether the administrator be foreign or domestic, or comes in under the statute. — 7 Port. 35; 2 Ala. 150; 4 Blaclcf. 427; 13 Ill. 358; 23 Ala. 821.

      0. Hawlcins, for defendant Holdridge.
    Neither executors nor administrators can maintain or prosecute a suit in their official capacity in any other state or county except that from which they derive authority.— 1 Bari. 231; 6 Hill, 554; 1 N. H. 193; 4 McLean, 577; Story on Conflict of Laws, §515 and-cases cited-, 7 Cow. 64; 5 Mass. 67; 28 VI. 667; 9 Eng. Law and Eq. 216.
    If such an executor or administrator desires to prosecute a suit, they must obtain new letters of administration, give new securities in the place or county where the action is brought, as auxilliary to letters of administration granted elsewhere.— Story on Conflict of laws, 841, §513, and cases cited; 3 Bari. Oh. 71. ‘ *
    An executor or administrator appointed under the laws of one state or country can not convey any interest, right or chose in action belonging to the estate of the decedent, so as to authorize another person to maintain an action on the same in another state or country, and this objection may be taken advantage of under the general issue.— 5 Me. 223; 3 Granch, 319; 2 2f. II. 291; 11 Mass. 255, 262.
    So the party may move to non-suit the plaintiff on that ground.— 4 McLean, 577.
    The reasons are obvious why this should not be permitted, and,

      First. A suit brought and a recovery had, would be no bar to suit on the same demand by the real administrator; and,

      Second. It would remove the assets beyond the reach of the creditors of the decedent living where the suit was brought; and which assets would be liable to the payment of his debts.— 2 Met. 114.
    The statutes are the same as the law of 1846, under which the decision of Wood, administrator1, vs. Gould, was had.
    In actions that do survive the decease of either of the parties, and whose executors or administrators can be substituted, applies only to such as are appointed within the state where the action is pending, or brought; otherwise they can not be recognized as the legal representative of the party. — 22 Ala. 474; 10 Gush. 172.
   Cooley J.

It appears from the record in this case that the action was commenced by John Yickery as plaintiff, and that after plea of the general issue by the defendant, Holdridge, the plaintiff’s death was suggested of record, and the cause revived in the name of Martha B. Yickery as his administratrix. The cause afterwards went to trial, and the defendant, Holdridge, offering evidence to show that the plaintiff’s appointment as administratrix was made in another state, the plaintiff admitted the fact, but denied its competency as evidence; and thereupon the Court decided that the action could not be maintained, and rendered judgment against tbe plaintiff for costs.

It is conceded by tbe plaintiff tbat tbe force of a grant of administration is confined to tbe jurisdiction granting it; but it is claimed tbat when one sues as administrator, tbe defendant admits tbe representative character if be fails to put it in issue by his plea. As a general rule this is correct; and it is only necessary to see whether it is appbcable to tbe present case.

When tbe suit is brought in tbe first instance by an administrator, tbe practice requires him to make profert of bis letters by bis declaration. — Bac. Air. Executor, Gj 1 Chit. PI. 420; 2 Greenl. Ev. § 338. Tbe defendant is thereby notified not only of tbe character tbe plaintiff asserts, but of tbe source of bis authority. He is thus enabled to plead intelligibly if be deems the claim unfounded; and be may demand oyer for tbe purpose. Tbe plea ne wnques executor, though sometimes pleaded in abatement, is properly a plea in bar, since it goes to tbe plaintiff’s title, and can not give him a better writ. Tbe reason for bolding tbe defendant precluded from disputing the plaintiff’s right to sue when be has pleaded to the merits is, tbat tbe plea is interposed after tbe profert of tbe letters has enabled him to judge of their sufficiency. — 1 Chit. Pl. 489; 2 Stark. Ev. 315; McKinley v. Braden, 1 Scam. 67; Copewood v. Taylor’s Admr. 7 Port. 33. If it appeared by tbe profert or on oyer tbat tbe plaintiff was a foreign administrator, tbe defendant might demur; and even if be failed to take tbe objection in any form by bis pleading, it would still be open on motion in arrest of judgment, or on error, if tbe record disclosed tbe defect.

Where, however, tbe action was originally brought by a party suing in bis own right, and bis death is suggested of record, different considerations prevail. The proceeding to substitute tbe administrator is entirely a matter of statutory regulation, and its effect upon the rights of parties can not properly be extended beyond what the statute has provided, on any mere fanciful analogies to the common law practice. Except upon the idea that a plea to the merits is an admission of the character in which the plaintiff sues, he woxxld be bound to prove his letters, since his title depends xxpon them; but it is difficult to perceive how there can be such an admission by a plea interposed before the representative character exists. The proceeding on suggesting the death of a plaintiff is entirely ex parte, and there is no provision of statute by which notice of it is to be given to the defendant. If he happen to be present, he has no right to intervene, and if he be not present, the first intimation he receives of it may be when he is served with notice of trial. He then learns by the entitling of the notice that a change in the parties has taken place. But he is not apprised when or where the plaintiff was appointed administrator; and if he resorts to the files for information, he may or may not obtain it there. There should be proof presented to the Court in all cases when the death is suggested; but the practice is lax in this respect, and we can not presume' that it will always be furnished and -filed. We are not apprised by the record that it was furnished in this case. It is not always easy for the defendant to obtain, under such circumstances, the information which would be furnished him by profert and on oyer, since there is no way in which he can legally demand it; and where the original plaintiff was a non-resident, he can not always know that the claim of administration is well founded. The plaintiff, nevertheless, insists that the representative character is admitted, unless the defendant pleads puis darrein continuance, and pxxts it specially in issue, but we do not perceive that the reason which makes plea after profert an admission can have any application here. If the suggestion which has been entered of record could be treated as an amendment of tbe declaration, it would not supply tbe want of profert, nor enable the defendant to demand oyer. The defendant, therefore, can not be held to admit the letters of administration, since they axe not supposed to have been shown to him, and the record supplies no information concerning them. The most that can be done in any case is to hold the defendant to admit such facts as are pleaded by the plaintiff and not denied. In those states where the practice dispenses with profert — ms in Massachusetts — there is probably some other mode by which oyer can be had if the defendant doubts the plaintiff’s title; but their practice is a departure from that of the common law.' — Langdon v. Potter, 11 Mass. 313. We have adhered to the common law practice in this state, and, as we think, for very good reasons.

We do not find any case which has held the defendant precluded from disputing the representative character in a case like the present. In Copewood v. Taylor’s Adm’r. 7 Port. 33, the nature of the issue does not appear, and that fact was remarked upon by the Court. No other case to which our attention has been called is in point. We are of opinion that in such a case the representative character of the plaintiff is in issue, and that the defendant has a .right to dispute it. No other rule can fully protect him, and the plaintiff cannot possibly be wronged by it, since, if he holds a valid grant of administration, no evidence that can be offered can disprove it or take the plaintiff by surprise. This case does not require of us the expression of opinion as to the burden of proof in such cases; but we are entirely satisfied that when the defendant has not had profert so that he can see whether the letters are such as will protect him, he is not precluded from disputing their validity under the general issue. That would be an anomaly in the law which should make the defendant’s plea an admission of facts subsequently occurring, so as to preclude him from denying the plaintiff’s right to recover, when confessedly she has no title whatever, and the judgment in her favor could not protect him. against another recovery for the same cause of action by an administrator appointed, in this state.

We think the judgment correct, and it must be affirmed.

Christiancy and Campbell, JJ. concurred.

Martin, Ch. J. did not sit.


text:
    Martha B. Vickery v. Pliney B. Holdridge.
    Case made after judgment from Livingston Circuit.
   Cooley J.

This case was argued with the case of Martha B. Vickery v. Clara Bier et al. and depends upon the same principle. The judgment must therefore be affirmed, with costs.

Christiancy and Campbell JJ. concurred.

Martin Ch. J. did not sit.


author: Christiancy J.

text:
    The People ex rel. Emile P. Benoit v. George Miller.

      Certificate of Election, effect of: Oath of office: Bond. A certificate of election, whether rightfully or wrongfully given by the Board of Canvassers, confers upon the person holding it the prima facie right to the office until his right is rejected by a voluntary surrender, or by a judicial determination against him.
    The statute requiring the oath of office and bond to be given within a certain time, applies only to persons declared elected, and to whom the certificate of election has been given.

      Heard. July 9th.

      Decided July 10th.

      Quo warranto.

    The iuformation in this case was filed to test the right of defendant to the office of Treasurer for Wayne County.

      But a single question is presented by the pleadings, viz., Whether the relator was obliged to offer to file his official bond and oath — the defendant' claiming to hold the office by virtue of a certificate of election, and refusing to vacate the same.

      A. Pond, for relator.

      T. Romeyn and Wm. Gray, for respondent.
   Christiancy J.

By the rejoinders the respondent has placed his own, as well as the relator’s rights to the office upon the single fact, that the relator did not offer to file his bond and take the oath of office. And this fact being admitted by the demurrer, presents the single question, whether under the facts alleged and admitted by these pleadings (the 4th and 5th pleas, the replications and rejoinders), the relator was bound to offer his bond or to take the oath of office in order to negative the respondent’s right to the office or to establish his own.

By his pleas, the respondent had alleged, in substance, that he was holding over under his former election, because no successor had yet been elected and qualified. If no successor had been either elected or qualified, his right to hold over was clear.

But to this the Attorney General replies that an election was duly held in November, 1866; that relator and respondent were candidates at that election for said office; that relator received the greatest number of votes and was duly elected to the office, but that the Board of County Canvassers wrongfully gave the certificate of election to the respondent, who, under color of such certificate, assumed to file the bond and to take the official oath required by law of the person elected, and then, under color of these proceedings, wrongfully usurped and held the office.

These facts, thus set up in the replication, if true, entirely negative the allegation in the pleas, of the respondent’s holding over under his former election; as they show that, instead of holding or claiming to hold over under his prior election, he was in fact claiming to hold the office under the pretence, and wrongful certificate of the election of November, 1866, as his own successor. It is true the replications do not meet the allegation of holding over by a direct denial or traverse, according to the strict and approved forms of good pleading. But they set up the facts which constitute a denial, and instead of taking issue directly by a traverse, tender to the respondent an issue upon these facts.

This is doubtless argumentative pleading, and would have been held bad on special demurrer on this ground, and possibly also on the ground of duplicity. But these are only defects of form, and not of substance; and, as the respondent did not see fit to demur, but has pleaded over, we are to disregard matters of form, and look only to the substance. Nor are these objections of form in the replications such as will authorize us to hold them bad on the demurrer to the rejoinders, under the rule which requires us to give judgment on demurrer against the party committing the first fault in the pleadings; as this rule only applies to errors of substance.

By insisting in his rejoinders only upon the fact, that the relator had not offered to give the bond or take the oath, the respondent has admitted that the relator was duly elected, as alleged in the replications, as well as the wrongful giving of the certificate, and his own pretended qualification and claim under it.

■ The Board of canvassers having given this certificate and declared the respondent duly elected, and.he having taken the oath and given the bond, and being in possession of the office claiming against the relator, was the latter bound, before he could maintain this proceeding to test the right to the office, to tender his bond or to take or offer to. take the oath of office? This is the only remaining question. We think the statute requiring the oath and bond, must be construed to apply only to persons holding the certificate of election, those whose rights are admitted by the' person ■holding it, and those who, without having the certificate, have obtained a judicial determination establishing their right to the office. The certificate of election, whether rightfully or wrongfully given, confers upon the person holding it the prima facie right of holding for the term. And this prima facie right is subject to be defeated only by his voluntary surrender of the office, or by a judicial determination of the right.

We find nothing in any of our statutes - warranting the inference that the Legislature ever contemplated requiring any person, claiming to have been elected to an office, to take the oath or file the bond, while another person, holding the certificate of election, is in possession of the office under the certificate, refusing to yield to the claim, and the right has not yet been tried.

The bond in this case was to be given to, and approved by the Board of Supervisors, who had already taken the bond of the respondent for the same office. He held the certificate upon which alone they had the right to act, while he persisted to claim the office under it and had qualified, or was ready and willing to qualify under it.

We do not mean to say that if 'the respondent had abandoned, or should abandon his claim to the office (under the election witnessed by the certificate), admitting the relator’s right, that the board might not have received and approved the relator’s bond. But they certainly had no jurisdiction' to try the validity of the election, as between the relator and the respondent; and in such a contest the certificate of election was conclusive upon them, until the right should be judicially tried; and they had no right, under such circumstances, to recognize the relator as Treasurer, by taking and approving an official bond from him. The execution and tender of sncli bond by him would, therefore, have been an idle ceremony, without any possible effect.

As to the oath, no person can reasonably be required to swear that he will perform the duties of an office, out of which he is thus kept by another, and which it is yet uncertain whether he can ever obtain.

But the question whether the relator was bound to tender his bond or to take the oath before he could insist upon his right in this proceeding, has already been determined by this court in People v. Mayworm, 5 Mich. 146, where we held, in reference to the office of Sheriff, that the statute requiring the oath and bond within a certain time, applied only to persons declared elected and to whom the certificate 'had been given. And we think the statute in reference to the Treasurer and other officers holding over till their successors are duly elected and qualified, must be construed so as to. harmonize with those requiring the oath and bond; and that any other construction would lead to gross absurdity, leaving a person duly elected, but -wrongfully kept out of the office, without a remedy to obtain it.

The demurrer to the rejoinders must be sustained.

Coolet and Campbell JJ. concurred.

Martin Ch. J. did not sit.


author: Tbe court

text:
    The People ex rel. Foley v. Augustus Kopplekom.

      Quo warranto: Notice of hearing: Report of pj’oceedings. Notices of hearing may be given in quo warranto cases before the filing of the report of the proceedings in the Circuit Court; the case being considered as having always been in the Supreme Court.

      Heard and decided October 8th.

      Quo warranto.

    This was a motion to strike the cause from the docket, by reason of tbe notice of hearing being premature.
    It appeared that tbe issue in tbis case was sent down to tbe Houghton Circuit Court for trial, but that tbe return of tbe proceedings of said trial bad not been filed in tbis court when tbe notice of bearing was served.
    <?. V. N. Lothrojp, for tbe motion.

      W. L. Stoughton, Attorney General, contra.
   Tbe court

held that tbe notice was good, as tbe case must be considered as having always been in tbis court; tbe trial of tbe issue being ordered to enable tbis court to give final judgment upon tbe verdict, and not being an original proceeding in tbe circuit.


author: The Court

text:
    Francis D. Boardman v. Charles W. Taylor.

      Transcript of Record: What diligence required in filing. When a transcript of the record has not been filed within the proper time, permission to file it will not be granted unless a sufficient excuse is shown for the delay, and a readiness to file it when the motion to dismiss is made, or within a time satisfactory to the court.
    A party seeking relief is bound to show that he has done all in his power to procure a return, and paid, or been ready to pay the Register’s fees.
    Heard, October 8th.

      Decided October 9th.

    Appeal from Kent Circuit in Chancery.
    This was a motion to enter and dismiss said appeal for want of prosecution.
    The appeal was taken April 19, 1867. An extension of time was granted by the court below in which to file a transcript, expiring June 18, 1867. It appeared from the affidavit of the Register of the court below that he applied to the appellant several times prior to June 18, 1867, for instructions as to what portions of the record were to be sent up, and informed appellant that it would cost from $50 to $60; but appellant would give no instructions, and did not offer to pay the costs.
    The appellant admitted the facts of said interviews, but claimed that the responsibility as to the amount of the transcript rested with the Register, and denied that he ever demanded his fees. He gave no further excuse for the delay beyond the inaction of the Register, and showed no offer to pay his fees, and no attempt to urge diligence after the time, as extended, had run out.

      A. Russell, for the motion.

      Geo. Gray, contra.
   The Court

held that permission will only be granted to file a transcript when a party shows a sufficient excuse for any delay in sending it up and is ready to file it, when the motion to dismiss is made, or within such time as will satisfy the court; but that the facts here showed no excuse, and that appellant was bound to show that he had done all in his power to procure a return, and paid, or been ready to pay the Register’s fees if required by that officer. He was bound to use active'measures to have the papers sent up.

Motion denied.