author: Brooke, J.

text:
    MYERS v. MUSKEGON IMPROVEMENT CO.
    Limitation of Actions — Attorney and Client — Payment —. Extension oe Time-Bills and Notes —Indorsers.
    Where indorsers of a promissory note who became indorsers before its execution, acted as attorneys for the estate of the deceased payee, having in their possession the paper and frequently corresponded with the executors of said estate without notifying them that there was any danger of their liability under the indorsement being barred by the statute of limitations, and where the attorneys treated the notes as their own, collecting money upon them and retaining part of it, forwarding to the executors sums received in partial payment which were indorsed on the instrument, the remittances so made operated as an extension of the indorsers’ liability-under the statute of limitations.
    Error to Muskegon; Davis, J., presiding.
    Submitted November 24, 1911.
    (Docket No. 182.)
    Decided May 3, 1912.
    Rehearing denied July 22, 1912.
    Assumpsit by Henry E. Myers and Edwin F. Holmes, as administrators of the estate of John L. Woods, deceased, against the Muskegon Improvement Company and others upon a promissory note. Judgment for defendants. Plaintiffs bring error.
    Reversed.

      Olapperton & Owen, for appellants.

      John Vanderwerp and Wallace Foote (Edward Waer, of counsel), for appellees.
   Brooke, J.

Plaintiffs sue upon a promissory note for 15,000, dated December 21, 1891, due 18 months after date, with interest payable semi-annually at the rate of 7 per cent, per annum. The note was executed by the Muskegon Improvement Company, by Q-. L. Mason, president, and Geo. L. Erwin, secretary, and was indorsed by Geo. L. Erwin, G. L. Mason, F. H. Holbrook, David D. Erwin, and F. A. Nims.

The note bears the following indorsements:

"July 16, ’92, int. paid to June 21, ’92, $175.50.
" Feb. 16, ’93, int. to Dec. 21, ’93, paid by check, $176.50.
" May 9, 1896, int. paid to May 5,1896, $1,113.44.
" H. E. Myers, Trustee.
“April 22, 1901, received $50.00 on the within note.
“Feb. 20, 1904, received $82.23 on the within note.
“Dec. 20, 1905, received $15.00 on the within note.”

The declaration was filed March 24, 1908. Defendants pleaded the general issue with notice that they would insist, in their defense, upon the statute of limitations.

The loan represented by this note, as well as several others, was made by John L. Woods, in his lifetime, upon the application of David D. Erwin, whose law firm, Smith, Nims, Hoyt & Erwin, had acted as attorneys for him in several matters in Muskegon and who had been personally associated with Mr. Woods in the mining business. The Muskegon Improvement Company, the maker of the note, was composed of David D. Erwin, Geo. L. Erwin, F. A. Nims, F. H. Holbrook, and G. L. Mason, all of whom indorsed the paper. At or shortly after the time the note was given, David D. Erwin took assignments to Mr. Woods from the Muskegon Improvement Company of three different mortgages as collateral to said note. One of these was the Shaw Electric Crane Company mortgage for $2,625; the second, the Wm. B. McLaughlin mortgage for $4,000; and the third, the Mason mortgage for $2,700. These collateral securities, as well as the note to which they were collateral, were retained in the hands of David D. Erwin until about March, 1898, shortly before the death of Mr. Woods, which occurred on the 27th day of that month. David Erwin indorsed the first two payments of interest upon the note. There is a dispute between the plaintiffs and defendants as to the whereabouts of the note after the death of Mr. Woods, but it is clear that it was in possession of the executors of the estate at the time of the payment of the interest of May 9, 1896. In December, 1895, ancillary administration upon the estate of John L. Woods was taken out in Michigan; David D. Erwin’s firm acting for the estate and giving the necessary bond. The collateral taken by Mr. David D. Erwin to secure his note seems to have been taken by him of his own motion and without the knowledge of Mr. Woods. Whether the note itself was in the hands of David D. Erwin after the death of Mr. Woods or in the possession of his firm is a disputed question, but there can be no doubt that the collateral remained for many years in the possession of either Mr. Erwin or his firm. In September, 1901, a power of attorney was executed by the executors to David D. Erwin by which he was empowered to execute instruments of release of the lots covered by the Mason and McLaughlin mortgages. On May 5,1901, a computation of the amount then due upon the note was made and certified to by Geo. L. Erwin, secretary of the Muskegon Improvement Company, and David D. Erwin; the balance then being fixed at $6, ?00. Thethree indorsements upon the note bearing the dates April 22, 1901, February 20, 1904, and December 20,1905, respectively, for $50, $82.23, and $15, represented sums of money collected by David D. Erwin from the collateral and forwarded by him to the executors of the estate. A voluminous correspondence appears in the record, from which it clearly appears that the plaintiffs relied upon David D. Erwin or his firm, and principally upon David D. Erwin, to procure payment of the debt secured by the note. It should be noted that at the time the Shaw Electric Crane Company mortgage was assigned to Woods as collateral security, there was due or to become due thereon $2,625, represented by three notes. The record shows that these three notes were paid after the assignment to Woods to the defendants, but that only one of them was applied upon the note to which the mortgage was collateral. This application is indicated by the indorsement upon the note of May 9, 1896.

Under these facts, the learned circuit judge made the following conclusions of law:

“ (1) There has been nothing shown in this case, so far as the defendants, Muskegon Improvement Company, Geo. L. Erwin, David D. Erwin, and Frederick A. Nims are concerned, making them liable to the plaintiffs under the pleadings in this case.
“ (2) The note upon which this action is brought became barred against the defendants, Muskegon Improvement Company, Geo. L. Erwin, David D. Erwin, and Frederick A. Nims, by the operation of the statute of limitations, June 21, 1899, six years after its maturity.
“ (3) The payments made on the note after its maturity were payments received for the release of property from the collateral mortgages securing it, and were remitted by David D. Erwin with no intent to renew his obligation as indorser on such note, and did not stop the running of the statute of limitations against him, or against any of the other indorsers.
“ (4) The acknowledgment of Geo. L. Erwin, as secretary of the Muskegon Improvement Company, in May, 1901, of the correctness of the computation of the amount due on said note, did not extend the period of limitation as against the Muskegon Improvement Company, for a longer period than six years from the date of said acknowledgment, if it extended said period of limitation at all, and did not have the effect of renewing or reviving the obligation of any of the indorsers to said note, or of stopping the running of the statute of limitations, as against, said indorsers.
“ (5) There has been no acknowledgment or new promise on the part of the Muskegon Improvement Company, Geo. L. Erwin, David D. Erwin, or Frederick A. Nims, within six years, which stop the running of the statute of limitations as against them, or which would take the note in suit out of the operation of the statute.
“ (6) There was no concealment of the cause of action represented by this note, which would stop the running of the statute of limitations.
“ (7) There was no fiduciary relationship, or relation of trust and confidence between any of the defendants and the plaintiffs, with respect to the note in suit, and the defendants were under no obligations to inform the plaintiffs of the running of the statute of limitations against said note.
“ (8) There was no concealment, misrepresentation, or fraudulent conduct on the part of David D. Erwin or Frederick A. Nims, or on the part of the firm of Smith, Nims, Hoyt & Erwin, which would estop the defendants, the Muskegon Improvement Company, Geo. L. Erwin, David D. Erwin, and Frederick A. Nims, from setting up the bar of the statute of limitations in this suit, and they are not estopped from setting up such bar.
(9) The note upon which this suit is brought is barred by the statute of limitations, against the defendants, Muskegon Improvement Company, Geo. L. Erwin, David D. Erwin, and Frederick A. Nims, and judgment should be rendered for said defendants in this suit.
“Dated March-, 1909.
“F. D. M. Davis,
‘' Circuit J udge. ”

Plaintiffs duly excepted to the findings of law and assert: First. That defendants should be held to be equitably estopped from insisting upon their plea of the statute of limitations by reason of the confidential relations existing between the executors of the estate and David D. Erwin, who was acting for all of the defendants in the matter; and, second, that the payments made upon the note by David D. Erwin, which he received from the collateral, should, under the circumstances of this case, be held to constitute a new promise, thus preventing the running of the statute.

We will first consider the latter proposition.

The five indorsers upon the note were not merely sureties, but were original makers thereof, and together they constituted the association, the Muskegon Improvement Company, the property of which was held in the name of Geo. L. Erwin, trustee. The assignments of collateral mortgages were made under the direction of David D. Erwin to John L. Woods; but these assignments and the notes and mortgages accompanying them were retained by David D. Erwin in his own possession until 1901, when they were sent to the agent of the executors of the Woods estate, and in September of that year returned to David D. Erwin, and remained there until 1906. These collateral notes and mortgages were originally given to Geo. L. Erwin, trustee for the five individuals who signed the note in suit, and he assigned them to John L. Woods. The property for which the notes and mortgages were given was the property of the five men who made the note in suit. And the notes and mortgages themselves, though standing in the name of Geo. L. Erwin, trustee, actually belonged to the same individuals. Subject to the assignment to Woods as collateral, they still owned them, so that when any money was collected from any of them it belonged to the five makers of the note subject to the duty to pay it over to Woods by reason of the assignment to him. The three notes to which the Shaw Electric Crane Com- . pany mortgage was collateral were paid to the defendants as follows: May 24, 1892, $901.67; December 31, 1892, $927.94; May 10, 1893, $954.19. These payments were all made after the assignment to Woods, but no application thereof was made on the Woods note until May 5, 1896, when one only of the three payments, with interest thereon, was so applied.

It is suggested, and we think with reason, that in November, 1892, the Mason mortgage was substituted as collateral for the Crane mortgage; the assignment from Erwin to Woods was not recorded, however, until 1901, when it was recorded with the power of attorney to David D. Erwin. If this was done, the record fails to show that either Woods in his lifetime, or his executors after his death, consented to such substitution. The correspondence between the parties clearly shows that little was known of the collateral by the executors and that they looked to David D. Erwin to protect the estate, and it is equally clear that in his correspondence, collections on collateral, and payments upon the note, David D. Erwin acted for all the defendants as well as for himself. The whole course of dealing, with reference to this collateral, was such, on the part of David D. Erwin, acting for all the defendants, as to convince us that they handled and treated it as their own property. Nearly $2,000 of the moneys arising therefrom was retained by them without the knowledge of Woods or his executors that the payments had been made. Under these circumstances, we are disposed to hold that when on April 22,1901, David D. Erwin collected from one of the mortgages, which he and his four associates owned subject to the assignment as collateral to Woods, and forwarded the same to the executors to be applied upon the note, said payment should be considered as a voluntary admission by the defendants that the debt was then due, from which a new promise can and should be implied. At that time no payments had been made upon the note for nearly five years, but the correspondence shows that during the period frequent inquiries were made by and on behalf of the executors, which were responded to by David D. Erwin. On February 20,1904, the firm of Smith, Nims, Hoyt & Erwin, by David D. Erwin, remitted to the executors a further sum of $82.23, collected from the same source, which was duly credited upon the note.

We have held that a new promise will not be implied from a partial payment where such payment is made under such circumstances as will preclude such inference. Home Life Ins. Co. v. Elwell, 111 Mich. 689 (70 N. W. 334); Westinghouse Co. v. Boyle, 126 Mich. 677 (86 N. W. 136, 86 Am. St. Rep. 570); Borden v. Fletcher's Estate, 131 Mich. 220 (91 N. W. 145). We are of opinion that the instant case presents no such circumstances. From 1901 to 1906, the custody, control, and collection of these collateral mortgages was unquestionably in the hands of David D. Erwin for himself and his codefendants, acting under a power of attorney given him by the executors at his request. He decided what property should be released and at what price. During all these years, no act was done by the representatives of the estate touching the collection of the collateral. No hint was given by him to the plaintiffs who were residents of a foreign jurisdiction, throughout a voluminous correspondence, that unless care was taken the statute of limitations might run against the paper. Indeed, it was not until May 16, 1907, that David D. Erwin repudiated legal liability when he wrote:

“While we decline to recognize any legal liability on our part, on the note in question, Mr. Nims and I feel a moral responsibility concerning it which we intend to discharge when and as our available means will permit, and if our intention is thwarted, it will largely be brought about by your avowed purpose to bring suit. There are considerations involved that we do not feel called upon to discuss with any one except Mr. Myers or Mr. Holmes.”

Upon principle, the instant case much resembles the case of Whipple v. Blackington, 97 Mass. 476. There, the holder of a promissory note delivered it to his creditor as collateral, with the understanding that any sum collected on it should be applied to his debt. Afterwards, as agent for his creditor, he collected a dividend on the note from the estate of the maker in insolvency and paid it over to his creditor, who on the date thereof applied it upon the debt. The court there said:

“ Not only was the note given as collateral security for the account, but the defendant notified the plaintiffs that the dividend was due, acted as their agent in collecting it, and himself paid it over. This was equivalent to an express request and authority to receive the money and apply it upon the account. If the account was then already paid, the money to be received upon the collateral security would have belonged to the defendant.”

Our conclusion that the later payments indorsed upon the note (made under the circumstances indicated) serves to prevent the running of the statute renders it unnecessary to discuss plaintiffs’ first proposition.

The judgment is reversed, and a new trial ordered.

Steers, McAlvay, Blair, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    KNEESHAW v. DETROIT UNITED RAILWAY.
    1. Automobiles — Contributory Negligence— Negligenoe— Imputing Negligence.
    Negligence of the driver and owner of an automobile, contributing to a collision with a street car, will be imputed to a person who was riding with the owner of the motor oar.

    2. Same — Highways and Streets — Personal Injuries.
    And it was contributory negligence on the part of the driver, on discovering that the steering gear of his vehicle failed to work and the machine started to circle in front of the car, after completing one entire circuit at a slow rate of speed, not to employ the ordinary means at his command to stop the automobile.
    3. Same — Discovered Negligence — Last Clear Chance — Street Railways.
    The motorman was not chargeable with negligence for failing to discover plaintiff’s danger in time to have stopped the street car; since the automobile was apparently in a place of safety until a brief interval before the collision.
    Error to Wayne; Brooke, J.
    Submitted April 4, 1911.
    (Docket No. 2.)
    Decided May 3, 1912.
    Case by James W. Kneeshaw against the Detroit United Railway for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      N. Galvin Bigelow {Henry G. Forler, of counsel), for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.

       For the general question of imputed negligence of driver to passenger, see extensive note in 8 L. R. A. (N. S.) 597.

   Bird, J.

This is a personal injury case in which the trial court, at the conclusion of the proofs, directed a verdict for the defendant. The plaintiff has assigned error. The plaintiff and one Hodgson were riding with Mr. Edward Frolich in his electric automobile in the city of Detroit, going east on Jefferson avenue, intending to turn down Brush street. When they reached Brush street, they were prevented from doing so by reason of a wagon which was in the way, so they continued their course on Jefferson avenue 90 to 100 feet beyond the intersection. At this point they started to circle around to the left, intending to go straight into Brush street. After they crossed the defendant’s tracks and were nearing the north curb, Mr. Frolich discovered that the steering gear had caught in some way and would not respond to the lever. The machine kept on in a circle, reaching the south curb just east of Brush street, when it immediately started northward on the second circle. When it reached defendant’s south track, it collided with one of its east-bound cars, wrecking the automobile and injuring plaintiff. The view which the trial court took of the proofs was that they failed to establish the negligence of the defendant, but did establish the contributory negligence of Mr. Frolich.

There is much discussion in the briefs of counsel as to the occurrences which preceded and led up to the collision, and counsel are in direct conflict as to many of the incidents. We think if would profit little to discuss the question of the negligence of the defendant, for the reason that, whatever our conclusion might be as to that question, the case will have to be affirmed on the ground of the contributory negligence of Mr. Frolich, whose negligence, so far as this case is concerned, is the negligence of the plaintiff.

It was clearly the duty of Mr. Frolich to stop his car when he learned that he could not guide it. He learned this fact just after he crossed the tracks the first time while on his way north around the circle. Instead of stopping his car, as an ordinarily prudent person would do, he kept on around the circle and passed in front of the street car and completed the circle at the south curb, and immediately started on another circle knowing the street car was very near. The automobile was not traveling at any time to exceed two miles an hour, and had he shut off his power or applied his brake at any point before starting on the second circle, the machine would have stopped almost instantly. The failure to use the usual and ordinary instrumentalities provided for stopping the car is, under the circumstances of this case, such contributory negligence as will bar a recovery.

In attempting to excuse plaintiff’s failure to stop the automobile, nis counsel argues that plaintiff was suddenly placed in a position of peril, and he seeks to apply the rule that is often applied in such cases. The difficulty with this contention is the plaintiff was not suddenly placed in a position of peril. He knew when he crossed the tracks going north on the first circle that he could not control his automobile, and he had ample opportunity to think and act while he was going- on around the circle and before he reached the south curb. If Mr. Frolich had not discovered that his steering gear was out of order until after he had crossed in front of the car, there might be some room for such a claim. The facts as Mr. Frolich himself details them leave no room for the application of that rule.

It is also urged that, even though plaintiff were negligent, the motorman should have discovered the peril plaintiff was in and averted the collision. After the automobile crossed the track in front of the car going toward the south curb, it was apparently in a place of safety, and it was not until it circled around and commenced to approach the track again that the motorman had any reason to suspect that plaintiff was in any danger. After that, and before the impact, the time was very brief, and there is no proof that the motorman did not do what he could to avoid the collision.

The judgment of the trial court is affirmed.

Moobe, C. J., and MoAlvay, Stone, and Ostbandeb, JJ., concurred.


author: Coolev Oh. J.

text:
    The People v. Robert Garbutt.

      Homicide: Evidence of disposition. On a trial for homicide, when there was no pretence that defendant, had committed the offense in self dvieuse, but on iho contrary had deliberately done the deed, evidence showing the quarrelsome disposition of deceased, that he carried weapons, and had threatened to use them on defendant, was held clearly inadmissible.

      Reputation as to being a good sol Her. On the trial, evidence was offered tending to show that while defendant was in the army he was reported a good and valiant soldier: held Irrelevant.

      Mental condition as shown by undue excitement in time of battle. The opinions of witnesses as to what is undue and unnatural excitement in time of battle, can not generally afford safe around for conclusions as to the person’s mental condition years afterward, unless it appears that the excitement completely mastered the intellect, and deprived the person of accountability.

      Hwedifary insanity: Evidence. In criminal cases, it is competent to showhereditary tendency to insanity ou the part of a defendant. Held further, that evidence of mental unsoundness on the part of a brother or sister of the pc son whose competency is in question, is admissible; and the jury should be allowed to consider it in connection with all the other evidence bearing upon that subject.
    Drunkenness, no defense in commission of crime. Yolunfary drunkenness, of whatever degree, constitutes no defense to the commission of crime.

      Criminal cases: Insanity: Burden of pt'oof. Sanity being the normal condition of the mind, the prosecution in a criminal trial may rest upon the presumption that the accused was sane when he committed the act, until it is overcome by the defendants evidence.
    But when any evidence is given which tends to overthrow that presumption, the jury are to examine, weigh, and pass upon it with the understanding that, although the initiative in presenting the evidence is taken by the defenre, the burden of proof upon this part of the case, as well as upon the other, is upon the prosecution to establish the conditions of guilt.

      Charge of court in cHminal cases: Bights of defendant to further charges. After tlie court liad charged the jury, the defendant’s counsel requested a further charge that as to good character it is for the jury to consider whether such reputation tends to rebut the presumption of malice. The court refused to give the charge, on the ground that it might tend to mislead the jury, without further explanation, which the court did not feel bound then to give, in view of a rule adopted by the court requiring that requests to charge must be handed in by counsel before the argument was commenced.

      Held, that, though the rule was reasonable, and one which in courtesy counsel should certainly comply with, yet no unbending rule to this effect can be laid down, especially as the necessity for requests to charge may often arise from the very charge given by the judge.

      Good character. In every criminal trial, good character is a fact which the defendant is at liberty to put in evidence; and, being in, the jury have a right to give it such weight as they think it entitled to.

      Seard April 21st and 22d.

      Decided April 28th.

    Defendant was tried and convicted in tbe Recorder’s Court at Detroit, upon an information for murder.
    Tbe facts are stated in tbe opinion.

      Wm. L. Stoughton, Attorney General, for tbe People.
    The defendant was convicted in tbe Recorder’s Court of tbe-city of Detroit, of tbe crime of murder in tbe first degree. Tbe fact of tbe homicide is not denied. The questions raised by tbe bill of exceptions relate to tbe admission of evidence and tbe charge of the court.
    1. The counsel for the defendant requested the court to charge the jury “ that malice is a necessary element in the commission of murder, and must be proved by the prosecution as part of this case.”
    The court gave the charge as requested; adding the words “either by inference from other facts proved in the case, or by direct proof from declarations and acts of +he defendant.”
    This qualification was necessary and proper. Malice is sometimes'a mere inference of law from the facts proved. 1 Bish. C. L. § 263; 1 Whart. Am. C. L. 944; 11 Humph. 172; 1 Ashm. 289; 5 Blackf. 299; 1 East P. C. 371; 1 Hill, 377 ; 5 Cush. 535 ; 5 Mich. 1; 10 Id. 218.

      %. The court also instructed tbe jury “that tbe law so far regarded human infirmity that if a man under the influence of passion, excited by reasonable provocation, should lose all self-control and kill another, the presumption of malice would be repelled, and the offense would be manslaughter.
    That what is such reasonable provocation is a question of law for the court, and in this case the fact that La Plante succeeded in inducing Miss Boucher to give up the defendant and many him, was not such reasonable provocation as will reduce the killing of La Plante from murder to manslaughter.”
    The court did not charge that there was no reasonable provocation in this case. As a legal proposition the instruction was clearly correct. There is a large number of cases where the courts have declared that certain alleged facts do not constitute- reasonable provocation. — 1 Whart. Am. C. L. 970 - 986, ancl cases there cited; 8 Greenl. Ev. § 125; 2 Ld. Raymond, 1498; 8 G. and P. 182; 10 Mich. 212.

    3. The counsel for the defendant, after the jury had been charged, also requested a further charge to the jury, “that as to good reputation it is for the jury to consider whether such reputation tends to rebut the presumption of malice.”
    The court refused to give the charge, on the ground that it might mislead -the jury, without further explanation, which the court did not feel bound then to give.
    The charge requested was broad and unqualified, and would necessarily tend to mislead the jury. — 1 Whart. Am. G L. 643-646; 5 Cush. 585.

    4 The rulings of the court in refusing to admit certain evidence offered by the defendant were correct.

      a. The evidence offered by the defendant to show that the reputation of La Plante, the deceased, was that of a quarrelsome man, was clearly inadmissible. — Am. C. L. 641; 2 Gray, 294; 16 Ill. 17; 17 Mo. 544.

      5. The evidence of the temporary insanity of the defendant’s brother while in the army was too remote. It did not tend to prove hereditary insanity. — 6 Jones, N. C. 471.

      c. Evidence of the defendant’s being a valiant soldier was inadmissible. It had no reference or analogy to the nature of the crime with which he was charged. — 1 Bish. Cr. Pro. 489 ; 3 Greenl. Ev. $ 25; 6 Mo. 12; 2 Wend. 352.

    And evidence of his undue excitement during engagements in battle was liable to a like objection. — 7 C. and P. 678; 2 Mass. 807; 10 Ga. 101.

    It is well settled that voluntary intoxication of whatever degree furnishes no excuse for a crime committed under its influence. — 1 Bish. Cr. L. § 298; 1 Am. C. L. $ 87; 2 Barb. 566 ; 2 Gray, 463; 2 Park. C. R. 228; Russ. & Ry. 166; 9 Humph. 668; 11 Id. 154.

    Sanity is presumed to be the normal state of the human mind, and it is never incumbent upon the prosecution to give affirmative evidence that such a state exists in a particular case.
    The preponderance of authority is, that if the defense be insanity, it must be substantially proved as an independent fact, and that the burden is on the defendant to prove it. — Am. G. L. §§dd and 71; Bish. Cr. Pro. $$ 533, 584 and notes; 2 Ala. 43; 21 Mo. 464; 6 Jones N. C. 366; 1 Zabriskie, 202; 3 C. & K. 188.

      8. Lamed, for defendant.
    1. It is for the court to define the legal import of the term malice aforethought; but whether it existed or not in any particular instance is a question of fact for the jury to determine. And the court has no right to AvithdraAv the question of malice from the jury by assuming to draAv the proper inferences from the whole or any part of the facts proAred as presumptions of laAV. —10 Mich. 218.

    The burden of proof as to malice rests with the prosecution, for the reason that malice is one of the essential ingredients of the crime of murder. — Hid.

      %. The court erred in excluding evidence of deceased’s reputation, as to being a quarrelsome man, and as to carryrying arms and threatening to use them, and that he had threatened defendant. It bears directly upon the bona fieles of the defendant’s conduct, the state of his mind, and the question of malice; and therefore admissible.
    3. The court erred in charging that reasonable provocation was a question of law for the court, and that there was no reasonable provocation in this case.
    It is, doubtless, in one sense the province of the court to define what in law will constitute a reasonable or adequate provocation; but not, in ordinary cases, to determine whether the provocation in the particular case is sufficient or reasonable. This is essentially a question of fact, and to be decided with reference to the peculiar facts of each particular case. —10 Mich. 221, 222.

    The court must to some extent assume to decide upon the sufficiency of the alleged provocation when the question arises upon the admission of testimony; but after he has admitted the testimony he can not take the question away from the jury and decide it himself.
    4. Intoxication to such an extent as to make the prisoner unconscious of what lie was doing at the time of the commission of the offense negatives the existence of malice; and upon principle the defendant can not be held morally responsible for any other act than that of getting intoxicated; at any rate the offense becomes manslaughter, and not murder.
    5. Whenever it appears from the evidence that at the time of doing the act charged, the prisoner was not of sonnd mind, but affected with insanity, and such affection was the efficient cause of the act, and that he would not have done the act but for that affection, he ought to be acquitted.— 31 Ill. 385.

    When insanity is set up as an excuse for the act the defendant does not thereby assume the burthen of proof upon that question. Sanity is a necessary condition to constitute the crime, and proof thereof, a part of the case to be made by the prosecution.' — 16 N. Y. 58; 31 Ill. 385.

    It is competent for a defendant charged with crime to show the existence of hereditary insanity in his ancestors. He may also show that his brothers or sisters have been' insane.
    6. Hpon the trial of a party for murder, evidence of his uniform good character as a man and a citizen is admissible, and there is no good reason why his character as a soldier, while engaged in the service of his country, should be excluded.

      7. The court erred in refusing to admit testimony of any undue and unnatural excitement about the defendant during engagements in the army.
    This evidence would tend to show the condition of his mind and memory, and was therefore admissible.
    8. The court erred in refusing to charge as requested by defendant that as to good reputation it is for the jury to consider whether such reputation tends to rebut the presumption of malice.
   Coolev Oh. J.

The defendant was convicted in the Becorder’s Court of the city of Detroit, on an information charging him with the murder of one La Plante. On the trial, it was shown that La Plante, and a young woman named Emily Boucher, were coming down Woodward Avenue together, on the afternoon of September 21, 1867, when they were overtaken by the defendant, who, after a few words, fired a pistol at La Plante, wounding him mortally. No question was made that La Plante died of this wound, but it was insisted, on behalf of defendant, that it was inflicted by him under circumstances of great provocation, sufficient to reduce the offense from murder to manslaughter; and it was further claimed that he was at the time mentally incompetent of a criminal intent; the reason being temporarily overthrown through the combined influence of intoxicating drinks, the great provocation, and perhaps of hereditary tendencies also.

The defendant’s statement went to show that he was engaged to be married to Emily Boucher — the first day of May, 1868, being fixed upon for the ceremony; that he visited her twice a week, and had spent the evening of Tuesday, September 18th, with her as usual, but was informed by his mother on the next day of rumors that Emily was to be married to La Plante; that these rumors received confirmation from the statements of others, who added the circumstance that La Plante — who would appear to have been in better circumstances than the defendant — had deeded her forty acres of land; that defendant came to Detroit on the day of the homicide, saw La Plante and Emily get into a buggy together; followed them to a milliner’s shop, where he succeeded in getting an interview with her, which he describes as follows:

“I said, 'I hear you are going to get married to La Plante?’ She said, 'Yes.’ I said 'Do you love him better than me?’ She made no reply. I said, 'Do you love him or his property?’ She said nothing. I went closer to her, put my arm around her and kissed her, and said, 'Emma, are you going to do as you promised?’ She answered, ' Come up in the morning and I will tell you.’ She made no resistance when I kissed her, but said, 'You must be careful.’ We parted, and she got into a buggy; we got to the house, No. 58 Dubois street: from there I don’t know where I went.” Other evidence showed that he went immediately for the pistol with which the fatal wound was inflicted, but it tended to corroborate the statement of the prisoner as to his engagement, and there was also evidence tending to show that he was at this time considerably under the influence of liquor.

The first exception that appears in the record, was taken to the ruling of the Recorder, excluding evidence offered by the defense to show that La Plante was reputed to be a quarrelsome man, who carried weapons and threatened to use them, and had threatened the defendant. This ruling was correct beyond question. There was no pretence that defendant had killed La Plante in self defense; but on the contrary, lie had followed him for the apparent purpose of inflicting the mortal wound. La Plante’s reputation or threats could have no possible relevancy to the case.

, Exception was also taken to the exclusion, by the Recorder, of evidence offered to show that the defendant, while in the army from 18G2 to 1865, was reputed a good and valiant soldier; but there is quite as little question of the correctness of this ruling. It is somewhat difficult to suggest any plausible reason in favor of the admission of such evidence, and it was clearly irrelevant.

As 'bearing, upon the question of insanity, a witness for the defense, who had been in the army with defendant, was asked to state whether he saw, during any engagements, any undue and unnatural excitement about the defendant. This question was objected to, and excluded by the Recorder, and we think correctly. The opinions of witnesses as to what is undue and unnatural excitement in time of battle, can not generally afford ground for safe conclusions as to a person’s mental condition years afterwards, unless it appears that the excitement actually mastered the intellect, and deprived the person of accountability, which rve do not understand was pretended here.

The most important questions arise upon the exclusion, by the Recorder, of evidence offered to show the insanity of a brother of the prisoner, and upon his charge to the jury, and refusals to charge as requested on behalf of defendant.

Those questions which relate to the discovery and proof of insanity in criminal cases, are perhaps the most difficult of any with which courts and juries are compelled to deal. Mental* disease is itself so various in character, so vague, sometimes, in its manifestations, and so deceptive, especially in its early stages, and its canses are so subtle and so difficult to trace, that the most experienced experts are sometimes obliged to confess that, however careful and thorough their investigations, they still prove unsatisfactory, leaving the mind not only in a condition of painful uncertainty upon the principal question whether mental disease actually exists, but when its actual presence is demonstrated, failing utterly, in many cases, to trace it to any sufficient cause. This fact is very forcibly brought home to ns by the conflicting views expressed on criminal trials by careful, experienced and conscientious medical experts, who, regarding the same state of facts in the light of their scientific investigations and actual but diverse experience, are forced to express differing views, in consequence of which juries, in these difficult cases, are sometimes left in a state of greater doubt and difficulty, if possible, than if no such evidence had been given. The case of Freeman v. People, 4 Denio, 9, and the more recent and noted case of the forger Huntingdon, are conspicuous instances in illustration of this truth; but others will readily occur to the mind.

The defense sought to show hereditary tendency to insanity on the part of the defendant. That insane tendencies are transmitted from parent to child, there is now no longer a doubt; and though it was once ruled that proof that other members of the same family have decidedly been insane is not admissible either in civil or criminal cases (McAdam v. Walker, 1 Dow. P. C. 148, 174; Chitty’s Med. Juris. 354-5,) yet this ruling has since been rejected as unphilosophical and unsound, and it is now allowed to prove the insanity of either parent, or even of a more remote ancestor, since it seems well established that insanity sometimes disappears m one generation and reappears again in the next ( Taylor’s Med. Juris. 628-9, and cases cited; Whart. and Stille Med. Juris. 85 et seq.).

In the case at bar it was not claimed that either parent, or any other ancestor, had been insane; but the defense offered to show' that insanity had been developed in a brother, arising from a cause similar to that which, it was alleged, had induced the destructive act of the defendant; and this fact was sought to be placed before the jury as throwing some light on the defendant’s conduct and accountability.

Although this evidence could not be very satisfactory in character, we think it was legally admissible. It is now generally believed that other things besides actual mental disease in the parents may cause the transmission of taints to their offspring, which result in some cases in idiocy or insanity. The children of habitual drunkards are thought to be much more susceptible to mental disease than those of persons whose habits have been correct and regular, and the medical opinion has been expressed that the children of those who are married late in life are also more subject to insanity, than those born under other circumstances (Taylor’s Med. Juris. 629). But it sometimes occurs that persons in vigorous health and correct habits, who have nevertheless entered into a marriage which violates some physiological law, may become parents of weak and diseased children, only, so that insanity enters the family for the first time in the person of the children, but through qualities derived exclusively from the parentage. Melancholy examples of this fact are presented sometimes in cases of the intermarriage of near relatives. The reasons for this are not fully understood and can not be explained. We can only say of such cases, that observation teaches us the existence of a law of nature which can not be broken with impunity, but the full boundaries, extent and force of which we are as yet unable to fully comprehend, point out and explain. But there are other cases where we may be able to discover effects without the ability to point out either the law or the causes which produce them. What peculiar combinations of qualities in the parents may tend to produce mental perversion, weakness or disease in children, must forever remain, in many cases, matter of profound mystery. If a family of several children should be found, without known cause, to be idiotic, or subject to mental delusions, the inference of hereditary transmission would, in many cases, be entirely conclusive, notwithstanding the inability to xooint out anything of a similar character in any ancestor. Insanity in a part of the children only would be less conclusive; but the admissibility of the evidence in these cases can not depend upon its quantity, and it could never be required that it should amount to a demonstration. In some cases its force must be small; in others it will prove hereditary taint with great directness. We think evidence of mental unsoundness on the part of a brother or sister of the person whose competency, is in question, is admissible, and that the jury should be allowed to consider it in connection with all the other evidence bearing upon that subject.

The counsel for the defendant requested the court to charge the jury that if they believed the defendant was intoxicated to such an extent as to make him unconscious of what he was doing at the time of the commission of the offense, the defendant must be acquitted.

A doctrine like this would be a most alarming one to admit in the criminal jurisprudence of the country, and we think the Recorder was right in rejecting it. A man who voluntarily puts himself in condition to have no control of his actions, must be held to intend the consequences. The safety of the community requires this rule. Intoxication is so easily counterfeited, and when real it is so often resorted to as a means of nerving the person up to the commission of some desperate act, and is withal so inexcusable in itself, that the law has never recognized it as an excuse for crime.— Commonwealth v. Hawkins, 3 Gray, 463; United States v. Drew, 5 Mason, 28; People v. Hammill, 2 Parker, 228; Pirtle v. State, 9 Humph. 668. Whether all the charges given by the Recorder on this subject were correct, we do not feel called upon to consider;' as the only exception to the charge as given was a general one to the whole charge, which is not sufficient, when a part of it is correct, to raise questions upon other parts.

The defendant’s counsel also requested the court to charge the jury that sanity is a necessary element in the commission of crime, and must be proved by the prosecution as a part of their case whenever the defense is insanity. Also, that where the defense makes proof of insanity, partial or otherwise, whenever it shall be made to appear from the evidence that prior to or at the time of the offense charged, the prisoner was not of sound mind, but Avas afflicted with insanity) and such affliction Avas the efficient cause of the act, he ought to be acquitted by the jury. These requests were refused.

It is not to be denied that the laAV applicable to cases of homicide Avhere insanity is set up as a defense, is left in a great deal of confusion upon the authorities; but this, Ave conceive, springs mainly from the fact that courts have sometimes treated the defense of insanity as if it were in the nature of a special plea, by which the defendant confessed the act charged, and undertook to avoid the- consequences by shoAving a substantivo defense, which he Avas bound to make out by clear proof. The burden of proof is held by such authorities to shift from the prosecution to the defendant when the alleged insanity conies in question; and while the defendant is to be acquitted unless the act of killing is established beyond reasonable doubt, yet when that fact is once made out, he is to be found guilty of the criminal intent, unless by his evidence he establishes Avitli the like clearness, or at least by a preponderance of testimony, that he was incapable of criminal intent at the time the act Avas done.— Regina v. Taylor, 4 Cox, C. C. 155; Regina v. Stokes, 3 C. & K. 188; State v. Brinyea, 5 Ala. 244; State v. Spencer, 1 Zab. 202; State v. Stark, 1 Strob. 479. These cases overlook or disregard an important and necessary ingredient in the crime of murder; and they strip the defendant of that presumption of innocence which the humanity of the law casts over him, and which attends him from the initiation of .the proceedings until the verdict is rendered. Thus, in Regina v. Taylor, supra, it is said: “In cases of insanity there is one cardinal rule never to be departed from, viz: that the burden of proving innocence rests on the party accused.” And in State v. Spencer, supra, the rule is laid down thus: “Where it is admitted or clearly proved that the prisoner committed the act, but it is insisted that he was insane, and the evidence leaves the question of insanity in doubt, the jury ought to find against him. The proof of insanity at the time of committing the act ought to be as clear and satisfactory, in order to acquit a prisoner on the ground of insanity, as proof of committing the act ought to be in order to find a sane man guilty.” These cases are not ambiguous, and, if sound, they more than justify the Becorder in his charge in the case before us.

The defendant was on trial for murder. Murder is said to be committed when a person of sound mind and discretion unlawfully Mlleth any reasonable creature in being, and under the king’s peace, with malice aforethought, either express or implied.— 3 Coke Inst. 47; 4 Bl. Com. 195; 2 Chit. Cr. L. 721 These are the ingredients of the offense; the unlawful killing, by a person of sound mind and with malice; or to state them more concisely, the killing with criminal intent; for there can be no criminal intent when the mental condition of the party accused, is such that he is incapable of forming one.

These, then, are the facts that are to be established by the prosecution in every case where murder is alleged. The killing alone does not in any case completely prove the offense, unless it was accompanied with such circumstances that malice in law or in fact is fairly to be implied. The prosecution takes upon itself the burden of establishing not only the killing, but also the malicious intent in every case. There is no such thing in the law as a separation of the ingredients of the offense, so as to leave a part to be established by the prosecution, while as to the rest the defendant takes upon himself the burden of proving a negative. The idea that the burden of proof shifts in these cases is unphilosopbical, and at war with fundamental principles of criminal law. The presumption of innocence is a shield to the defendant throughout the proceedings, until the verdict of the jury establishes the fact that beyond a reasonable doubt he not only committed the act, but that he did so Avith malicious intent.

It does not follow, however, that the prosecution at the outset must give direct proof of an actual malicious intent on the part of the defendant; or enter upon the question of sanity before the defendant has controverted it. The most conclusive proof of malice will usually spring from the circumstances attending the killing, and the prosecution coidd not well be required in such cases to go further than to put those circumstances in eAÚdence. And on the subject of sanity, that condition being the normal state of humanity, the prosecution are at liberty to rest upon the presumption that the accused was sane, until that presumption is oArercome by the defendant’s eAddence. The presumption establishes, prima facie, this portion of the case on the part of the government. It stands in the place of the testimony of witnesses, liable to be overcome in the same Avay. Nevertheless it is a part of the case for the government; tlje fact Avhich it supports must necessarily be established before any conviction can be had; and Avhen the jury come to consider the whole case upon the eA'idence delivered to them, they must do so upon the basis that on each and every portion of it they are to be reasonably satisfied before they are at liberty to find the defendant guilty.

This question of the burden of proof as to criminal intent Aras considered by this court in the case of Maher v. The People, 10 Mich. 212, and a rule was there laid down which, is entirely satisfactory to us, and which we have no disposition to qualify in any manner. Applying that rule to the present case, we think that the Recorder did not err in refusing to charge that proof of sanity must be given by the prosecution as. a part of their case. They are at liberty to rest upon the presumption of sanity until proof of the contrary condition is given by the defense. But when any evidence is given which tends to overthrow that presumption, the jury are to examine, weigh and pass upon it with the understanding that although the initiative in presenting the evidence is taken by the defense, the burden of proof upon this part of the case, as well as upon the other, is upon the prosecution to establish the conditions of guilt. TJpon this point the case of People v. McCann, 16 N. Y. 58, is clear and satisfactory, and the cases of Commonwealth v. Kimball, 24 Pick. 373; Commonwealth v. Dana, 2 Met. 340; State v. Marler, 2 Ala. 43; Commonwealth v. McKie, 1 Gray, 61; Commonwealth v. Rogers, 7 Metc. 500, and Hopps v. People, 31 Ill. 385, may be referred to in further illustration of the principle. See also Doty v. State, 7 Blackf. 427. The recent case of Walter v. People, 32 N. Y. 147, does not overrule the case of People v. Me Cann, but, so far as it goes, is entirely in harmony with the views here expressed.

But it is claimed the Recorder erred when he declined to charge that, if it appeared from the evidence that defendant was afflicted with insanity, and such affliction was the efficient cause of the act, he ought to be acquitted by the jury. This refusal, however, must be considered in connection with the charge actually given, and we are not satisfied that other portions of the charge do not fully cover this ground. Were this the sole error charged, it might be necessary to examine all the instructions to the jury with some care, to see if, taken as a whole, they could tend to mislead. As, however, a new trial must be ordered on other grounds, it does not become important to make any such critical examination. If we do not misapprehend the charge, the view of the Recorder seems to have been substantially the same as our own.

The case was argned before us by the defense, on the assumption that, in one part of his charge to the jury, the Recorder had laid down a rule on the subject of provocation differing from that in Maher v. People; but we do not discover any thing in the exceptions upon which the argument can be fairly based, and shall not, therefore, undertake to determine whether the charge is objectionable in the particular referred to.

The only remaining error alleged, relates to the refusal of the Recorder to charge, as requested, upon the evidence adduced by the defendant to establish his uniform good character previous to the time of the alleged offense. To understand this refusal, it must be known that the counsel for the defendant had previously been informed by the court that any requests to charge the jury should be handed in before the commencement of his argument to the jury. In compliance with this direction, seven written requests were handed in, which were appropriately responded to. None of these related to good character. The court, however, in his charge, alluded to the proof of good character, coupling it with a caution to the jury not to give too much weight tb the statement the prisoner had made in the case, and which must be considered as made under strong temptations to state, that which was untrue in his own exculpation. After this charge was given, the court was asked to instruct the jury that they had a right to believe the defendant’s statement in opposition to sworn evidence; and this charge was given with a repetition of the caution above stated. The court was then further requested to charge that, as to good reputation, it is for the jury to consider whether such reputation tends to rebut the presumption of malice. The court refused to give the charge, on the ground that it might mislead the jury, without further explanation,. which the court did not feel bound then to give.

We infer, from the bill of exceptions, that the Recorder declined to give what he regarded as proper instructions on this point, because the request was not handed in at a prior stage of the case. ■ As a legal proposition, however, the refusal could hardly be justified on this ground. It is undoubtedly proper that requests to charge should be handed in before counsel go to the jury upon the facts; and a rule by the court to this effect ought to be regarded as binding by counsel. Fairness ■ to the judge, and common courtesy would require that such a rule be complied with, that he may have opportunity to carefully weigh his instructions, and to reduce them to writing, if he shall so desire. Counsel who should decline to obey so reasonable a request, might justly be regarded as wanting in that courtesy which distinguishes the members of the profession generally in their intercourse with each other, and which is especially due from the bar to the judges who endeavor patiently to administer the law with impartiality amid all the difficulties and embarrassments that sometimes surround the trials by jury. Nevertheless, the rule can not be laid down as an unbending rule of law. The necessity for a request to charge will sometimes arise from what has already been charged by the judge. It may become important in order to render more clear and explicit that which he has already stated, but which has fallen short of a complete exposition of the law upon the point to which his remarks have been addressed. And if, in any case, the counsel should fail to request the court to lay down those familiar rules of law which it is always to be expected will be given in the cases to which they are applicable — such as the necessity of malice in murder, or a breaking in burglary — the defense could not justly be precluded by such omission from having the proper instructions given.

It is quite possible that in the present case counsel took it for granted that the proper instructions would be given on the subject of the evidence of character, without any request to that effect. With many judges it is a matter of course to give such instructions, and it is to be presumed the Recorder would have done so in the present case had it occurred to him as important. , But we think the request of counsel did not come too late in this instance, and he was entitled to have the proper instructions given.

We also think the instructions requested were correct in substance, and that the defendant was entitled to them without explanation or qualification. The whole request was that the jury be instructed that they had a right to consider whether the evidence of good character tended to rebut the presumption of malice. That the evidence was admissible in the case was unquestionable, but it was equally unquestionable that it could have no bearing whatever except upon the question of malicious intent. To refuse the instruction, therefore, seems to us equivalent to holding, or at least to leaving the jury to infer, that the evidence which was lawfully put into the case, was immaterial after it was in.

The instruction is often given in these cases, that proof of good character is not to be allowed to weigh against evidence, which in itself is satisfactory; and Mr. Starkie has said it ought never to have any weight except in a doubtful case. — 1 Stark. Ev. 75. Such instructions are well calculated to mislead. Good character is an important fact with every man; and never more so than when he is put on trial charged with an offense which is rendered improbable in the last degree by a uniform course of life wholly inconsistent with any such crime. There are cases where it becomes a man’s sole dependence, and yet may prove sufficient to outweigh evidence of the most positive character. The most clear and convincing cases are sometimes satisfactorily rebutted by it, and a life of unblemished integrity becomes a complete shield of protection against the most skillful web of suspicion and falsehood which conspirators have been able to weave. Good character may not only raise a doubt of guilt which would not otherwise exist, but it may bring conviction of innocence. In every criminal trial it is a fact which the defendant is at liberty to put in evidence; and being in, the jury have a right to give it such weight as they think it entitled to. Chief Justice Shaw has pointed out in the Webster case how important it is in the case of some minor offenses, and he adds that, “even with regard to the higher crimes, testimony of good character, though of less avail, is competent evidence to the jury, and a species of evidence which the accused has a right to offer. But it behooves one charged with an atrocious crime, like this of murder, to prove a high character, and, by strong evidence, to make it counterbalance a strong amount of proof on the part of the prosecution.”— Commonwealth v. Webster, 5 Cush. 295. In some cases, it may have even this great effect.

The difficulty at this point lies in attempting to surround the jury with arbitrary rules as to the weight they shall allow to evidence which has properly been placed before them. This court has several times found it necessary to declare that no such arbitrary rules are admissible. We refer particularly to the cases of People v. Jenness, 5 Mich. 305; Maher v. People, 10 Id. 212, and Durant v. People, 13 Id. 351. The trial of criminal cases is by a jury of the country, and not by the court. The jurors, and they alone, are to judge of the facts, and weigh the evidence. The law has established this tribunal because it is believed that, from its numbers, the mode of their selection, and the fact that the jurors come from all classes of society, they are better calculated to judge of motives, weigh probabilities, and take what may be called a common sense view of a set of circumstances, involving both act and intent, than any single man, however pure, wise and eminent he may be. This is the theory of the law; and as applied to criminal accusations, it is eminently wise, and favorable alike to liberty and to justice. But to give it fuil effect, the jury must be left to weigh the evidence, and to examine the alleged motives by their oavh tests. They can not properly bé furnished for this purpose with balances which leave them no discretion, but which, under certain circumstances, Avill compel them to find a malicious intent when they can not conscientiously say they believe such an intent to exist.

Upon a full consideration of this case, we are compelled to say we find some errors in the record, for which the conviction should be set aside and a ne\v trial awarded.

Campbell and Graves JJ. concurred.

Christiancy J. did not sit.


author: Graves J.

text:
    Edwin Jenny v. Horace Perkins.

      Bill in chancery: Multifartousness. The bill set forth that the parties to the suit entered into a partnership, executed a written agreement therefor, and that soon after the business was commenced, defendant deprived complainant of all participation therein; and prays for an account.
    A plea was interposed to the effect that there had been no subject matter existing between the parties within six years immediately preceding the filing of the bill. The plea was fully sustained by the evidence. Held, that the statute of limitations was well pleaded. It is not designed merely to raise a presumption of payment or adjustment from the lapse of time, but it is a statute of repose, and intended to afford security against stale demands.

      Heard April 22d.

      Decided April 28th.

    Appeal in chancery from Wayne Circuit.
    This Avas a bill calling for an account betAveen partners.
    The defendant filed a plea of the statute of limitations.
    The case Avas heard on pleadings and proofs, and the bill was dismissed.

      D. O. Holbrook, for complainant and appellant.
    1. The bill alleges a partnership; that 'the complainant was excluded therefrom against his avíII ; that there were large profits; and that there was a sale of the partnership property. • ■
    The plea alleges that there was no property sold, nor business done;'that nothing occurred for six years next before filing the bill. The partnership was admitted.
    The complainant insists that the court below erred in alloAving the plea, as the statute of limitations does not apply to the case, and is no answer to the bill; the bill and plea only are to be considered in determining the validity of the plea; and if such a plea is no answer, then the plea is bad and should have been overruled.
    A plea of the statute of limitations to accounts between partners is not good.— 1 Dev. Ch. R. 533; 7 Dana, 241; 1 Edw. 417; 1 Dev. and Bat. 325; 3 Yerger, 201; 8 Porter, 211.

    2. The bill alleges a partnership, exclusion, profits, and sale of property proved, within six years. The plea alleges there was no -property sold and no business done within six years. The issue is not abandonment, as proved, and thereby a forfeiture of rights as claimed. If the complainant conducted himself in such a manner as to lose his time and profits, nothing short of an answer setting up' abandonment Avould raise that issue.

      L. Bishop, for defendant and appellee.
    1. The plea is good, both in form and substance; and, if sustained by proof, is a bar to the action, from analogy to the statute of limitations in relation to actions 'at laAV.— Story’s Eq. Pl. §§ 503, 751, 756, 757.

    The proper form for a plea of this kind has been folio Aved in this case. — Id. §694.

    It Avas intimated, in the argument beloAV, that this defense does not lie against a claim arising from partnership. I find'no authority for,such a distinction, either in principle or in the books. The claim is simply one in equity, Avhere there,is no-adequate remedy at laAV.

      2. The professed object of the bill is to wind up an old business connection in 1857, alleged to have been a partnership.
    The plea is, in substance, that nothing was done in pursuance of the alleged partnership within six years prior to the filing of the bill in June, 1865.
    3. It is clearly proved, and there does not seem to have been a serious attempt to deny it, that more than six years prior to filing the bill, the complainant had actually abandoned the business in question; that he had engaged in a rival and even a hostile business; and that the defendant had treated the business and property wholly as his own.
    This was a complete dissolution of the partnership, if there had been one.
    This ■ abandonment is the same in effect as if we had produced from the complainant a fall discharge, receijot and release of all rights and claims in reference to that business.
    At any rate, when the abandonment toot place, when the complainant left and the defendant assumed to himself, exclusively, the whole business and property of the concern, the cause of action accrued to the complainant, if any he ever had. Then the statute began to run, and this was more than six years before the bill was filed.
    Even if one partner can be charged as a trustee for the use and benefit of his partner as a cestui que trust, the statute runs. — Tyler on Infancy and Coverture, 171; 1 Johns. C. R. 90.

   Graves J.

The original bill in this cause was filed on the 14th of June, 1865, and sets forth in substance, that by t;vo certain agreements in writing, respectively bearing date the 5th and 17th of January, 1857, executed by the parties, and which are made part of the bill, a partnership was constituted between the parties to continue until November, 1858, for the purpose of buying, selling and manufacturing staves, and making and Tending molasses sbooks at Ashley, in Ma-comb county, the acquisition of tools and other needful things; and at the expiration of the term, or as soon thereafter as might be, the disposition at public or private sale of the mill and premises used in said business, together with the right or rights secured by patent in the stave machine; that the business was commenced and promised to be successful, but that the complainant was expelled in a few months after by the defendant, and has been kept out since by him, and that the complainant has been deprived of all rights under said partnership by the defendant, and been denied all participation in the profits and property, although a considerable property was accumulated and large profits have been made by defendant.

The bill prays an account as to property and profits, that a balance may be struck, and that the defendant be directed to pay the same to complainant.

The bill was unsworn and waived an answer on oath, and set up the first partnership agreement as under seal.

The defendant interposed a plea, in which he alleged in substance that the agreement set forth as a sealed one was in truth not sealed; that if a seal or scroll appeared upon it, the same was put there surreptitiously and without authority; that for more than six years next before the filing of the bill, no partnership transactions had taken place; that during all that time there was no property belonging to said partnership, nor any disposition made of any such property, nor any partnership matter remaining unsettled; and that during all that time the defendant in no manner promised complainant to come to any account, or to pay or in any way satisfy complainant, for any money or concerning any of the matters, transactions or dealings charged or alleged in the bill. The plea concluded by insisting upon the statute of limitations as a bar. TJpon being set down for argument it was allowed, when the complainant filed a general replication, and the parties proceeded to take proofs tinder the issue thus raised. The court below being of opinion that the evidence maintained the plea, dismissed the bill and the complainant appealed.

Two points are made. First, That a plea of the statute of limitations to a bill for an account between partners is not permitted; and Second, That the real issue raised by the present plea is not supported.

Upon the argument on the first point the counsel for complainant was understood to urge that the plea was bad, inasmuch as it did not deny, but admitted the partnership, while alleging that no business had been done, and that nothing of a partnership nature had taken place for the six years next before the bill was filed. If it be meant by this that the bill contained matters which necessitated other averments in the plea than those contained in it, in order to present a complete equitable bar; or that an answer was requisite in consequence of some supposed matters in the bill adapted to furnish evidence against the truth of the plea, the ground of the objection is not discovered. There are no collateral circumstances stated in the bill, which could afford evidence to disprove the plea, nor are there any allegations which would require further averments in the plea. But if this were otherwise, it can not be admitted that a specific answer or discovery could be insisted on, since an answer upon oath is waived and the bill unsworn.

If it be intended to assert that the plea is bad in setting up as a bar the noii - existence of all matters which could be the subject of accounting, without denying the existence of the partnership relation, the position is deemed to be untenable. The argument, as thus presented, would imply that the right to an accounting would be a consequence of the partnership relation, however barren. It is manifest, however, that the existence of the bare relation is not enough. There must also be a subject matter, respecting which an accounting may be ■ had. If there has been no ■ subject ’matter, there can be no accounting, though the nominal relation has all along existed.

The point of the plea is, that there has been no subject matter for the statutory period, and this is deemed sufficient in the present case. The right to plead the statute in a suit of this description, and to a bill' constituted like the present seems to be within the principle which is now entirely settled.

Whatever implications may be found against it in isolated cases, the current of authority strongly supports the right. See the authorities cited by defendant’s counsel; also Story on Part. §288 a; Tatam v. Williams, 3 Hare, 347; Barber v. Barber, 18 Ves. 286.

Formerly it was thought that the statute was designed to raise a presumption of payment or adjustment from the lapse of time, but the better view is now the prevailing one, that it is a statute of repose, and intended to afford security against stale demands when the circumstances would be unfavorable to a just examination and decision.

The courts, therefore, instead of looking upon the -law as harsh or oppressive in its operation, now regard it as eminently wise and beneficial. • The gradual change of opinion here,noticed has been attended by a corresponding one in the application of the statute, and in the administration of those principles of equity which have the same foundation.

The policy of the statute, as now considered, so harmonizes with the kindred doctrine of the court of equity, that in many cases they seem to be nearly blended; and in such instances it is of more importance to observe the principle than to speculate upon the source from whence it cante.

Whether, therefore, the statute be regarded as a technical bar, or be adopted from analogy, or whether the case be one of concurrent or exclusive jurisdiction, I think the limitation ought to be applied.— Stearns v. Page, 7 How. 819.

It was conceded on the argument that the written instrument purporting to liaye been sealed was in fact unsealed, and that the complainant abandoned the business at the end of three months. Indeed the proofs show that he voluntarily withdrew from the concern and all its interests and business, and never, in any manner, returned to or participated in it, or sought to do so, and that he engaged in and gave his time and skill and influence to a rival business. The property of all descriptions was abandoned to the sole control, care and management of defendant, and no evidence appears that complainant had any purpose to reinstate himself, or preserve the interest, or bear the burdens of a partner. After such separation both complainant and defendant acted as though no partnership existed, and the defendant exercised exclusive control over all the property and all the business. This occurred more than six years next before the bill was filed, and continued during the statutory period.

If the complainant ever had a cause of action, it must, therefore, have accrued so long ago as to be subject to the bar. Under these circumstances, I think the truth of the plea established, and that the decree of the court below ought to be affirmed with costs.

Cooley Ch. J. and Campbell J. concurred.

Christiancy J. did not sit.


author: Campbell J.

text:
    John A. Kerr et al. v. City of Lansing et al.

      Chancery practice: Multifariousness. When, in a bill by several complainants to enjoin the collection of a grading assessment, some irregularities were alleged which affected but a part of the complainants, and in which the others were not interested, while others affected them all: Held, that, as the bill did not make out a common cause for complainants throughout, it should be dismissed as multifarious.

      Chancery practice: When court will decide the merits. The court will not decide upon the merits when the bill is dismissed on other grounds, unless under peculiar circumstances, and when all necessary facts are before them.

      Heard April 16th.

      Decided April 28th.

      Appeal in chancery from Ingham Circuit.
    The bill in this case was filed by nine freeholders of the city of Lansing, to restrain the collection of a tax. The cause was heard in the court below, on demurrer. The bill was dismissed, and complainants have appealed to this court.
    Defendants assign two special causes of demurrer.

      First. Complainants’ bill is multifarious. It shows affirmatively, that the complainants have no joint or common interest in the subject matter in controversy; but the interest of each is separate and distinct.

      Second. Complainants show no title which enables them to maintain their suit. They are simply freeholders and tax-payers of the city of Lansing, and as such, they can not maintain a suit enjoining the city from the exercise of its municipal powers.

      T. Romeyn, for appellants and complainants.
    The bill should not be dismissed for multifariousness.
    1. This objection is, in effect, that there is a misjoinder of complainants. It was not taken by demurrer, and it was first made at the hearing.
    It should not be allowed when the court can make a decree which will do entire justice between the parties.— 7 Mich. 139.

    2. The case made by the bill would furnish relief to each and every complainant, if it would to any one of them.
    3. We think the bill not multifarious, even if the objection had been taken in limine.— 1 Barb. Ch. 59; 18 U. S. Dig. 264; 19 Id. 240.
    The question is to be decided in each case according to its circumstances. It is affected by considerations of convenience.
    The complainants go on common ground. They travel the same path, and ask for the same relief. Why should they not be allowed to start- and travel together ?

      We refer to the argument of counsel in Conway’s case, 15 Mich. 257, and to the following additional cases.— 5 Allen, Mass. 374; 33 Barb. 30; 34 Miss. 87; 24 How. 164.

      Johnson é Ilic/by, and S. L. KiTbourne, for appellee and defendants.
    The bill shows that complainants had no joint or common interest in the subject matter.— Story’s Eq. Pl. § 279, and notes; 12 Simons, 416; 1 Tur. and Russ. 297; 8 Simons, 272; 9 Id. 299; 15 Barb. 239 ; 43 Id. 375; 24 Ct; 25 Ill; 15 Mich. 257.

    In the last case, this precise question Avas argued by counsel before this court, but not decided.
    There is some authority for holding that complainants of distinct interests may maintain a bill to restrain a nuisance, Avhen all are alike affected, but this and the case of a creditor’s bill, are alike exceptions to the rulé.
    Admitting that our objection is not Avell taken, yet Ave insist that the complainants have no right to the relief prayed for. It involves the broad proposition as to Avhether a court of equity Avill restrain the collection of a laAvful tax, imposed by a municipal authority. It is conceeded, this is a laAvful tax, but that it is irregularly assessed. If so, each individual complainant has his remedy at law. We have been unable to find any authority to uphold this proceeding. Besides, if the rule is once adopted, that' any individual member of a community, Avho may conceive a tax to be irregularly assessed, can, through the agency of a court of equity, enjoin the collection of taxes, it pvill result in incalculable mischief. Upon this point, Ave refer the court to 18 N. Y. 155; 12 Peters, 91; 23 N. Y. 318; 6 Metc. 425; 2 Mich. 560.

   Campbell J.

This bill is filed to enjoin the collection of a grading assessment upon the property described in the bill, in Avhich the several complainants have separate interests. It is demurred to upon various grounds, the first of 'which is, that it is not so drawn as to show a right in the complainants to join in its prosecution. .

It is usually a good ground of demurrer to a bill, that the complainants have no joint cause of action, or none in which'they together represent a single and entire claim or interest. But it is insisted that, in order to avoid a multiplicity of suits, one action may be brought by or against all persons who are interested alike in repelling a. grievance, or protecting rights, wherein their interests are precisely alike in character, and affected in just the same way by the adverse claim or transaction. It is also claimed that, in such cases, a part may sue or be sued as representatives of all, where convenience renders such a course essential.

That such an exception is permitted in various cases, is very well settled, although the precise cases permitting it are not uniformly agreed upon. But in the case before us, the bill is not so drawn as to call for any discussion of this subject.

lip to a certain point, there is a similitude of grievances. In each case, the thing sought to be restrained, is the collection of an assessment, which is alleged to be irregular. In each case, it is. ultimately chargeable on land, and purports now to be a lien upon it. The irregularities and illegalities, in most instances, affect one of the complainants as well as another. But there are some irregularities alleged, which affect but a part of the complainants. The assessment on certain property is alleged to be invalid, because Whitney Jones, Mary Bingham, and Nelson W. Clarke, although tenants in common with Kerr and Jerome, are not mentioned in the roll, but the entire amount is assessed to the two latter. So, in the case of certain lands belonging to the minor child of H. Lathrop, it is claimed the assess-' ment is void, because not laid against the owners or occupants. It can- not be pretended that any of the other complainants are interested in these private and special grievances, and to this extent the bill does not, therefore, make out a common cause. If these specific irregularities should turn out to be the only ones, then the majority of the complainants would have no cause of complaint at all, and Kerr and Jerome would have no common ground with the Lathrop heir, and no right to join with her in filing a bill.'

There is then no authority for this suit in its present form, for complainants have shown affirmatively that they do not all stand on the same footing. And the demurrer was properly sustained.

"We were urged, on the argument, to decide upon the merits, notwithstanding the defective pleading. There is no propriety in taking such a course, except under very peculiar and pressing circumstances, and in the present case, where no testimony has been taken, and where the facts are not brought before us with such precision as we should desire for such a purpose, we do not regard such a decision as justifiable. The questions are serious, and should not be decided on uncertainties.

The decree must be affirmed, with costs.

Cooley Oh. J. and Graves J. concurred.

Ohristiancy J. did not sit.


author: Cooley Ch. J.

text:
    Nathaniel W. Brooks v. Daniel B. Nichols et al.

      Assignment for benefit of Creditors: Selection of exempt property. Where a bona fide assignment of personal property, including chat exempt by law, is made by a debtor for the benefit of creditors, the assignment is in effect a transfer of the whole property, subject to the right in the assignor to select those portions which the law, on the selection being made, absolutely sets aside for the benefit of the debtor and his family.
    The assignment passes for the benefit of creditors the same interest which an officer would seize by virtue of an execution, and there is no more difficulty in making the selection of exempt property in the one case than in the other.

      Heard April 25th.

      Decided April 28th.

      Error to Wayne Circuit.
    This was an action of replevin to recover possession of certain personal property levied upon by defendants by virtue of an execution.
    The jury, in a special'verdict, found the following facts:
    1. That prior to and on the 29th day of September, A. D.-1866, one Stewart'McDonald was the owner'of the property described in the plaintiffs declaration, and that the same constituted a part of the household furniture then owned and used by said McDonald.
    2. That on said 29th day of September said McDonald being in embarrassed circumstances, made a general assignment of all his property, real and personal, saving and excepting such as is exempt from seizure and sale under execution, by the laws of this State, to the plaintiff, as trustee for the benefit of said McDonald’s creditors.
    3. That said assignment was made in good faith and without any intent on the part of said McDonald to hinder, delay or defraud his creditors.
    4. That at the time of said assignment the said McDonald owned household furniture, including the articles in controversy in this suit, of the value of $695.75.
    5. That at the time of making said assignment all the articles of said furniture were in the possession of said McDonald, and no delivery thereof, or of any part thereof, was ever made to said plaintiff, but the whole of said furniture remained in the possession of said McDonald until after the levy of the execution hereinafter mentioned, and that no selection, separation or designation by agreement between said McDonald and the plaintiff, or otherwise, of the particular articles of said furniture, which should pass under said assignment, to the said plaintiff, or of the articles which said McDonald should retain as exempt from levy and sale under execution, was ever made prior to the levy of the execution hereinafter mentioned.
    6. That on the 18th day of January, A. D. 1867, the defendant Nichols* who was then a deputy sheriff for said county of Wayne, by directions of said defendants, Moore, Foote and Bagley, levied upon the whole of said furniture, all of which was then still in the possession of said McDonald, under arc execution issued out of the Circuit Court for the county of Wayne, upon a judgment recovered against said McDonald, in favor of said defendants, Moore, Foote and Bagley, on the 18th day of January, A. D. 1867, for the sum of $1,029.04 damages and costs. That upon making said levy said Nichols caused all of said furniture to be duly appraised in accordance with the statute, and after such appraisal said McDonald selected from such furniture as exempt from execution certain articles to the value of $250, and after such selection the plaintiff, on the 19th day of January, A. D. 1867, sued out the writ in this cause and replevied the remainder of said furniture, which is the same property described in plaintiff’s declaration in this cause.
    7. That the value of the furniture so replevied on said 19th day of January, 1867, was $445.77.
    The court thereupon rendered judgment in favor of defendants for the sum of $445.75; the return of the property having been waived.

      Newberry & Pond, for plaintiff in error.

      Willcinson & Post, for defendants in error.
   Cooley Ch. J.

We are of opinion that the Circuit Judge erred in not rendering judgment for the plaintiff on the special verdict. That verdict established the bona fides of the assignment by McDonald, and the only question that could remain was, whether it was void in law by reason of the omission to select out the exempt property. This question we regard as settled by the decisions of this court in Hollister v. Loud, 2 Mich. 323, and Smith v. Mitchell, 12 Id. 180.

■ The supposed difficulty of sustaining an assignment which assumes to transfer property not separated from a larger quantity, is not met with in these cases. The assignment is in effect a transfer of the whole property, subject to a right in the assignor to select out a certain portion, or certain articles, which the law, on the selection being made, absolutely sets aside for the benefit of himself and his family. The assignment passes for the benefit of creditors the same interest precisely which an officer would seize by virtue of execution, and there is no more difficulty in making the selection of exempt property in the one case than in the other. The principle is not new; transfers of the debt- or’s property, under bankrupt aud insolvent laws, are subject to the like right of selection, and we are not aware that any difficulty has been supposed to exist in the title of the assignee in those cases. He succeeds to the rights of the bankrupt or insolvent, acquiring, however, so far as exempt property is concerned, a defeasible title, which is divested when the selection is made. The trustee, in a voluntary assignment, stands on the same footing, and is entitled to the like protection.

The judgment of the court below should be reversed, and judgment rendered for the plaintiff for six cents damages, and the costs of both courts. ' .

Campbell and Graves JJ. concurred.

Christianoy J. did not sit.


text:
    Peter J. Bowker v. Edward Johnson.

      Parol evidence: Bond of indemnity: Consideration. It is competent to show, by parol evidence, that notes, and a bond of indemnity, given upon the purchase of property, were based upon an agreement, that the debts to be paid under the bond did not exceed a certain sum, and that any excess paid beyond that, should be allowed by way of reduction against the notes.
    Such testimony is relevant to show the real consideration of the transaction, and to confine the recovery to such an amount as the payee was actually entitled to demand. 'And courts of law, as well as courts of equity, restrict the remedy to the debt actually existing and intended to be secured by the notes.

      Heard April 21st.

      Decided April 28th.

    Error to Wayne Circuit.
    This was an action of assumpsit on a promissory note.
    The declaration was on the common counts, with a copy of the note attached.
    Defendant pleaded the general issue, and gave notice of set-off.
    On the trial, evidence was admitted, under objection, explaining the nature of the consideration of a certain agreement conditioned to pay partnership debts.
    Judgment was rendered for defendant.

      H. M. & W. B. Oheever, for plaintiff in error.
    1. The parol evidence offered in this case to contradict the written agreement, is clearly inadmissible under the general rule.

      2. If admissible, then it must come within one of three excepted classes.

      a. Was it another portion of the contract not inconsistent with the written portion ? The written portion, we insist, was absolute and complete on its face. It consisted of two notes and one bond, each in itself perfect and complete.— 9 Gray, 243; 12 Ohio, 201; 6 Cush. 68.

      h. If a contemporaneous agreement, it was equally inconsistent with the note and bond. The notes and the bond were perfect on their face, and needed no explanation or parol testimony to supplement them and perfect their legal existence.

      c. Did the testimony tend to show that the written contract was void or not binding, because it never had a legal existence.
    In this class of cases, the distiction seems to be this: When the evidence is offered to show that the written contract is void, or not binding, because it had no legal birth, it is admissible; but, if offered to show that a different construction was intended from that its language imports, it is not admissible.
    Parol evidence is held inadmissible to show that a note was to be paid in bank notes, or goods, or in any different manner from its express conditions.— 13 Wis. 209; 14 Ind. 499; 4 Gray, 504; 20 Ark. 293; 2 Ala. 280 ; 5 Ind. 184.

    Or that payment was to be conditional.— 2 Carter, (Ind.) 656; 14 Vt. 25; 12 Met. 138; 9 Id. 39; 7 Blackf. 491; 11 Vt. 679; 16 Cal. 138; 23 How. (U. S.) 49; 1 Hilton, N. Y. C. P. 524; 7 Wis. 532 ; 4 Pike, 154.

    And generally, a separate agreement as to the payment of promissory notes, can not be set up in an action on the notes, but the remedy is by action on such agreement.— 7 Wis. 462; 5 Mich. 209.

    The question put to the witness was as to the. conditions of the contract; not as to any set-off he had against Bowker, so it can hardly be contended that it was admissible as proof of set-off, entirely outside of the contract. The question was directly to the point of the terms and conditions of the contract, and the objections to its admissibility were directly based upon its incompetency, as tending to vary or alter the terms of the written contract.

      II. B. Broivn, for defendant in error.
    The sole question in this case, is to determine how far parol evidence may be admitted to show that the whole of the original agreement was not reduced to writing, and to prove a collateral verbal undertaking.
    Parol evidence is clearly admissible to add to the terms of a written agreement:
    1. Where the writing is incomplete upon its face, as in cases of bills of parcels, receipts, memoranda, and railway tickets.— 11 Mich. 68; 12 Id. 289; 17 N. Y. 306.

    2. Where the original contract was verbal and entire, and a part only was reduced to writing; (1 Greenl. on Ev. $281)) although this can not always be done.
    The true rule seems to be that, where the writing expresses an intention relative to a particular matter or subject, parol evidence is inadmissible to affect that intention in any way; but where such evidence has relation to something concerning which the contract is silent, or to some distinct collateral agreement, it is admissible, if it does not contradict or vary the writing. — 2 Phillips on Ev. 670; 4 Mees. and Wels, 140; 1 Stark. 267; 1 Fost. 224; 24 Barb. 379.

    Contracts with common carriers are constantly held open to verbal explanation and even contradiction. — 2 Kern. 509; 8 N. Y. 497; 13 Id. 569.

    A blank indorsement of a note or bill does not preclude parol explanations. — 2 Phillip)s on Ev. 670; 6 Mass. 1)31).

    For the rule contended for in this case, see the following authorities- — 1 Mass. 297; 8 Met. 59; 11 Cush. 44; 1 Greenl. on Ev. § 284; 2 Phillips on Ev. 670, 671; 3 Starkie on Ev. 1049; 9 Pick. 338 ; 6 Gill and Johns. 107; 2 Blackf. 236; 31 Penn. St. 252; 35 Id. 212; 15 Md. 211; 16 N. Y. 336; 23 Ct. 56; 32 Vt. 318; 11 Ohio, (N. S.) 393; 35 Miss. 457; 1 Met. (Ky.) 437; 3 Clarke, 74; 3 E. D. Smith, 305; 10 Ind. 414; 16 B. Mon. 315; 2 Blackf. 1249.

    In the present case, the defendant offered to prove, as an offset to plaintiff’s claim, that if he paid any debts not included in a certain schedule, the amount so paid should be set off against the notes. Such evidence does not contradict or vary the language of the bond, for the defendant is still bound to pay all debts, irrespective of the schedule, and save the plaintiff harmless from them, and if plaintiff were put to expense in defending them, defendant would be liable to him.
    It does not contradict the notes, but merely proves a set - off.
    Finally, the rule contended for does not conflict with the decisions of this court in Adair v. Adair, 5 Mich. 204, and Jones v. Phelps, Id. 218, as in these cases, attempts were made to prove facts entirely inconsistent with the writing.
   Campbell J.

Defendant being sued upon a note for 11,000, pleaded the general issue with notice of set-off. Dpon the trial it appeared in evidence (to which objection was taken in due form,) that this note, with another of like amount, was given under the following Circumstances: Defendant bought out Bowker’s interest as partner in a brewery, and was to pay three thousand dollars, one-third cash, and the balance by the two notes aforesaid, and was to assume and pay in full all Bowker’s share in the debts of the firm, in which defendant succeeded him, and indemnify him against all liability and damages. Bowker showed a schedule of debts and assets as the basis of this arrangement, and it was agreed that if defendant paid debts beyond what appeared on tbe schedule, he should be entitled to a corresponding deduction on the notes, which were to be left at the Savings Bank to stand for that purpose. . The defendant gave an unqualified bond to pay and indemnify, and executed the notes. One of the notes was indorsed by Bowker to a bona fide holder. Defendant paid claims in excess of the schedule list, of which Bowker’s half amounted to $1,459.20, and the set-off was allowed in the court below, and judgment rendered accordingly.

It is alleged as error that the effect of this was to allow parol evidence to contradict the written documents, which it was claimed could not be thus altered or invalidated.

We think such evidence as was admitted in the present case is proper as bearing upon the question of consideration. There is no difference in this respect between courts of law and courts of equity, and it has always been held in this state that evidence was admissible to explain the purpose and extent to which a security, purporting to be for the absolute payment of money, should be applied and enforced'. Where a mortgage accompanies a note or bond it is a mere incident to the principal security, and the note or bond is the substantial evidence of debt. Yet it has always been held that it might be shown the whole transaction, appearing on its face to be unconditional, was a security for 'something else, and no enforcement has been allowed for any other purpose than the actual one. The statute of frauds does not prevent trusts in personalty from being evidenced by parol, and a ■fjrust is therefore admitted to be shown against all but Iona fide holders, whether it be to create a special interest, a defeasance, or any other similar equity. See Catlin v. Birchard, 13 Mich. 110. This doctrine has been applied in various ways. It has been allowed to convert an absolute deed into a mortgage.— Wadsworth v. Loranger, Harr. Ch. 113; Emerson v. Atwater, 7 Mich. 12. To turn a contract of sale into a mortgage. Batty v. Snook, 5 Mich. 231; Swetland v. Swetland, 3 Id. 482. To show the original mortgagee had no interest in in the securities. — Bishop v. Felch, 7 Mich. 371. To show that a negotiable note, secured by mortgage, was really given for a mere indemnity.— Colman v. Post, 10 Id. 122. To show that a bond and mortgage for a fixed sum was given in consideration of a promised loan and a promised conveyance of property, and that there had not been a complete compliance with the promises. — Robinson v. Cromelein, 15 Mich. 316.

In Bennett v. Beidler, 16 Mich. 160, a note was given for a sum of money, which was the price of the crops on certain lands purchased at auction at an estimated number of acres, with the agreement that the maker of the note might have a subsequent measurement made to ascertain the true amount of the purchase money. The note having been paid by the maker to a bona fide holder, and the land falling short, he was held entitled to recover back the surplus payment.

We can perceive no difference in principle between these cases. Johnson undertook absolutely to pay the debts of Bowker, whatever might be their amount, and did pay them. But the price payable by Johnson was fixed upon the basis that such debts should be taken at a specified sum, and if exceeding that should entitle him to a corresponding reduction. So far as they were in excess, they reduced the consideration for his notes, and being capable of pecuniary calculation, and not in the nature of unliquidated damages, stand on the same footing as if he had given an accommodation note, or a note for money, in excess of a money price fixed at the time. The debts were all in existence at the date of the transaction, and when ascertained and paid, reduced to that extent the value received by Johnson of Bowker. The agreement rendered it the duty of Bowker to hold the notes as security for no greater sum than was equitably due, and had he retained them both they would have been enforceable. for no more. The money in excess of the schedule debts was paid to his use, by his request or agreement, and was therefore a legitimate ground of set-off.

The judgment was correct, and should be affirmed.

Cooley Ch. J. and Graves J. concurred.

Christiancy J. did not sit.