text:
    Dwight & Pierce vs. Blackmar.
    An administrator cannot become tlic purchaser of the estate or effects of his intestate.
    The rule that an agent authorized to sell property for the best price, cannot become the purchaser himself, whether the sale be public or private, or the agent purchase in his own name or otherwise, hold to apply to administrators.
    K. B., administrator, and E. B., administratrix, exe.cuted to E. B., the administrator, a deed of premises owned by the intestate in his lifetime. The deed was declared void, although the sale and conveyance was made 'under an order of the Judge of Probate. Held, also, that in such cases the question, of intent ox fairness could not be considered.
    Error to Jackson Circuit. The case is stated in the opinion of the Court.

      A. Blair, for plaintiff.

      S. II Kimball, for the defendant.
   By the Court, Whipple, J.

This cause is brought before,us by writ of error from the Circuit Court of the county of Jackson. The action was ejectment for an undivided eighth part of a lot or parcel of ground lying in the village of Jackson. On the trial, the plaintiff established the title of Samuel Blaekmar, his ancestor, to the land in question, and having proved the death of said Samuel, and that be was one of his heirs at law, and that Dwight & Pierce wore in possession of the premises at the commencement of the suit, the former claiming to be owner thereof, rested his cause.

The defendants to maintain the issue on their part, gave in evidence the record of a deed from Lucy Acker, John F. Durand and Silence, his wife, Louis Miller and Mary, his wife, Elizur B. Chapman and Julia, his wife, to Russell Blaekmar, dated June 1st, 1836, of certain premises, including the lot in controversy; the said Lucy, Silence, Mary and Julia, being the four daughters and heirs at law of the said Samuel Blaekmar.

After certain preliminary proofs, the defendants next offered in evidence a deed of the premises, from Russel Blaekmar, administrator, and Eunice Blaekmar, administratrix, of Samuel Blaekmar, to Mussel Black-mar, dated second August, 1836. To the introduction of the deed as evidence in the cause, the plaintiff, for various reasons, objected; the objections how'ever, were overruled, and the deed was read to the jury as evidence. It from these appeared that Dwight claimed to be owner of the premises by virtue of a conveyance to him by Russel Blaekmar, and that Pierce was his tenant.

From this statement it will bo seen that the plaintiff claimed as one of the heirs at law of Samuel Blaekmar, and that Dwight’s claim was founded upon a conveyance to him by Russel Blaekmar, who professed to have acquired title by .virtue of a deed from himself as administrator, and Eunice Blaekmar, as administratrix of the estate of Sámuel Blaekmar. ' It was claimed that Russel Blaekmar and Eunice Black-mar sold the land by virtue of a license of the Judge of Probate of Jackson county, upon the representation of the administrator and administratrix of Samuel Blaekmar, that the personal property left by ■the deceased, was insufficient to pay his debts.

It is not my purpose to consider the numerous questions raised on the trial, and appearing in the voluminous record before us, respecting the admissibility as evidence, of the deed from the personal representations of Samuel Blackmar to Russel Blackmar, through whom Dwight claims title, as many of these questions were decided upon the erroneous view taken by the Circuit Court, of the legal character of the deed. It will also become unnecessary, for the same reason, to express an opinion upon other points made in the progress of the trial, and in respect to which exception was taken to the ruling of the Court, by the plaintiff. Those mlings were the consequence of a misapprehension by the Court below, of the validity and effect of the sale made by the administrators of Samuel Blackmar.

To the introduction of the deed executed by Russel Blackmar, administrator, and Eunice Blackmar, administratrix of Samuel Blackmar, to Mussel Blackmar, objection was made, on the ground that the deed was fraudulent and void. The Court below, however, held that the deed was not absolutely void, but merely voidable. If the judgment of the Circuit Court upon this point cannot, upon correct legal principles, be sustained, the title of Dwight fails, and the plaintiff upon the showing in the Court below, was entitled to a verdict.

While it is the duty of this Court to view with liberality the proceedings of the Probate Court, when those proceedings are called in question to support titles derived through them, we are not at liberty to overthrow principles which have their foundation 'in the soundest rules of policy and morality, and the inflexible enforcement of which is deemed necessary to secure a faithful and honest administration of their duties by those to whom is committed the execution of delicate and important trusts.

It is probable that the attention of the Circuit Court was not called to several decisions, made at an early period in the history of this State, by the Court of Chancery, involving the precise question upon which the rights of the parties in this case depended. Those decisions, it is true, were not authoritative and binding upon the Circuit Court, not having received the sanction of this Court. They were nevertheless,, entitled to great consideration, from the fact that they embodied the views of two high judicial officers, and seem to have been acquiesced in by counsel, as no attempt was made to call in question their accuracy or soundness by an appeal to this tribunal. Whatever doubt or obscurity may have hung over the important question submitted for •our decision in this case, in consequence of views expressed by English ■and American Judges a hah century ago, and still maintained in some of the States, those doubts have been dissipated, and the doctrine maintained by this Court in the case of- Clute et al. vs. Barron, (ante 192, rests upon a foundation too solid to be shaken. That doctrine was commended to our adoption by reasons of policy so overwhelming, and supported by an array of authority so irresistible, as to make the path of duty plain, and leaves the doctrine where it should have been left, unimpaired by the unreasoned opinions or bare suggestions to be found in a few reported cases.

In the case of Beaubien vs. Poupard, (Harrington’s Rep., 206,) Chancellor Farnsworth set aside a sale made by Poupard, as administrator, on the ground that “ the rule is imperative that he could not become a purchaser.” In Walton vs. Torrey, (Harrington, 259,) the same Chancellor held that a purchase made by Torrey, of real estate sold under his order as Judge of Probate, was void, and referred to the masterly opinion of Chancellor Kent, in Davoue vs. Fanning, (2 Johns. C. R., 268,) as supporting to the fullest extent his opinion. In Ingerson vs. Starkweather, (Walker’s Ch. Rep., 346,) Chancellor Manning held that a purchaser of school lands, at a public auction in the name of one Norton, by the defendant, who was a clerk of the Superintendent of Public Instruction, was void, it appearing that the clerk was interested in the purchase. The reason of the rule is thus stated by th Chancellor: “It is contrary to every sound principle of equity to allow an agent, who is authorized to sell property for the best price that can be obtained for it, to become the purchaser himself. It is immaterial whether the sale be public or private; whether the agent purchased in his own name, or that of another. The object is to secure fidelity on the part of the agent to his principal, and it is as applicable to public agents as others.” In the case of Church vs. Marine Insurance Company, (1 Mason, 341,) Mr. Justice Story states the rule to be that “ the law will not suffer any man to earn a profit, or expose him to the temptations of a dereliction of his duty, by allowing him to act at the same time in the double capacity of agent and purchaser, either at a public or private sale. The ease then stands before the Court as if there was no sale; the ownership has never been legally divested.” The same doctrine is asserted and vindicated with great ability by Chancellor Kent in the case of Davoue vs. Fanning. In the case of Torrey vs. Bank of Orleans. (9 Paige, 649,) the learned.. Chancellor states the rule in clear and comprehensive language: “It is a settled principle of equity that no person placed in a situation of trust or confidence, in reference to the subject of the sale, can be a purchaser of the property on his own account.” The same doctrine is illustrated and enforced in a recent case in the English Chancery, by Lord Cottenham. He says, “ that the principle was not confined to a particular class of persons, such as guardians, trustees or solicitors, but was a rule of universal application to all persons coming within its principle, which is that no party can be permitted to purchase an interest where he has a duty to perform that is inconsistent with the character of a purchaser.” In ex parte Bennett, (10 Ves., 384,) the same doctrine is maintained with great force of reasoning by Lord Eldon, who held that “ neither the solicitor to a commission of bankruptcy, nor a commissioner in bankruptcy, can purchase either for themselves or another.”

In a recent case decided by the Supreme Court of the United States, (Michard et al. vs. Girard et al., 4 Howard, 503,) the doctrine was most elaborately and ably discussed, after an extended examination of the cases on that subject; and it was held that a person cannot legally purchase on his own account, that which his duty or trust requires him to sell on account of another, and that such a purchase carries fraud on its face. But it would seem superfluous to multiply authorities upon a question which was, in efiect, settled by this Court at its last January term, in the case of Clute vs. Barron. It was then determined that a, purchase made by a county treasurer, of lands sold for taxes, was void. In the opinion delivered on that occasion, the leading eases to be found in England and this country, were cited and reviewed. The principles established in that ease, embrace the one now before us, and render the deed of conveyance, through which Dwight claims title, nugatory and void. The fairness or unfairness of the transaction is not open to proof or discussion. The law denounces it as fraudulent. A relaxation of this doctrine was formerly imputed to Lord Hardwick, in a case decided in 1743, in which he is reported to have held that where there was a decree of a trust estate, and an open auction by the master, or a public sale by proclamation in the country, then the Court had permitted a trustee to purchase and refused to set' aside a sale, where all other circumstances were fair. This qualification of the rule, finds no support in the modern cases, and seems to have been repudiated, subsequently, by the great Chancellor himself in Whelpdale vs. Cookson, (1 Ves. 9; 5 Ib., 682,) in which he remarked, “that it was not enough for the trustee to say you cannot prove any. fraud, for it is in his power to conceal it.” That it finds no favor in the English Chancery, may be gathered from a remark made by- Lord Eldon, in ex parte Bennett, in repelling the doctrine held by Lord Rosslyn, “ that to effect the sale» the trustee must make an advantage.” Lord Eldon says, “the principle is deeper, viz: that if a trustee can buy in an honest case, he may in a case having that appearance, but which from the infirmity of human-testimony, may be grossly otherwise.”

I know of no case in which the principle I have endeavored to establish, should be more rigorously applied to its full- extent-, than to that of sales made by executors or administrators. They are trustees charged with the execution of duties exacting the most perfect good faith, and where the obligations of duty are likely to be overcome by the appeals of avarice. To secure fidelity to the trust, self-interest must not be allowed to come -in conflict with integrity. ■ Courts, by their decisions, should not allow persons to place themselves in a situation where the temptartions to violate duty and conscience are so great. The evil can only be reached by the vigilance and firmness of- our Courts in applying to every case falling within the principle, the rule established by the cases I have cited. Let it be once understood, that in every case of a purchase by a trustee or agent, the question of intent or fairness is to enter into the discussion, and the result would prove disastrous to the interests of society. In many instances the powers of a Court of Equity, (in the language of Lord Eldon,) would not be equal to protect it against deception, from the. impossibility of knowing the truth in every case. Frauds would lurk in transactions which the eagle eye of the law could not detect.

The record reveals a case which calls for a stern application of the rule, and illustrates its fitness and necessity. The administrator’s account showed the debts to amount to the sum of $2,178 43. Of this amount, $908 57 was paid by the personal assets, leaving a balance unprovided for of $1,269 86. Among the items making up the gross amount of indebtment were the following:

“Claim of Horace Blackmar, on the estate,........._-__.$500 00.”
Claim of Russel Blackmar,.........................1000 00-”

These two items stricken from the account, would have left a balance of $230.14, rendering' a sale of tbe real estate, unnecessary. That these two charges bear very strongly the impress of unfairness, is too clear for argument, especially when it is remembered that the item of $1,000, in round numbers, was claimed by the administrator, and the other of $500, was claimed by his brother. No explanation of these charges is disclosed by the records of the Probate Court. The minor children of the deceased, when arrived at the age of discretion, would seek in vain for an explanation in respect to claims stated in such general terms. Obscurity would rest on the transaction, too deep to be penetrated by tbe light which living witnesses might cast upon it; and thus they would have to submit to a wrong, for which, neither a Court of law or equity can provide an adequate remedy. The patrimony left by their father, to educate and nourish them, has been scattered by the hand of fraud, without the ability on their part, or on the part of the Courts, to repair the injury. But, again, the record shows that real estate, to the amount of $2,625, was sold to pay the balance of indebtment, which, (including the two items of $1,000, and $500,) was hut $1730.14. This circumstance wears an unfavorable aspect, and stamps the trasaction with illegality. How such a proceeding could have received the sanction of a judicial tribunal it is difficult to imagine.

But it is a useless consumption of time to analyze these proceedings of the Probate Court. They are so full of infirmities as to inspire the belief that the rights of property, founded on its decrees, are held by a frail tenure.

The judgment in this case must be reversed with costs, and the cause remanded for a new trial


source: Caselaw Access Project

author: By the Court, Whipple, J.

license: Public Domain

text:
    In the matter of the appeal of Dickinson from the decision of the Commissioners of the estate of Eaton.
    Under section 21, chapter 72, R. S., which requires that in cases of appoals from tho decision of commissioners to examine and adjust claims against deceased porsons, the claimant, before such appeal shall be allowed, shall, giye a bond with sufficient sureties to bo approved by the Judge of Probate and filed in his office, it was held that a bond executed and filed by a stranger conditioned that the appellant should prosecute, &c., was not a compliance with the statute and was insufficient.
    Although the Judge of Probate in allowing an appeal and passing upon the sufficiency of suroties acts judicially, yet until such bond is filed as tho statute requires, no foundation is laid for the exercise of judicial discretion and his acts are void.
    Case reserved from Ingham Circuit Court. -

      O. Hawkins, for motion.

      L. Chapman, contra.

   By the Court, Whipple, J.

The questions arising in this case were reserved for our opinion by the Judge of 'the Circuit Court of the County of Ingham.

The transcript in this case shows that a claim, founded on a judgment rendered in the Supreme Court of the State of New York, in favor of one John Dickinson and John F. Whitney, against Calvin P. Eaton, was presented for allowance, to the commissioner's on the estate of Eaton, and by them rejected. In order that the judgment of the commissioners might be reviewed by the Circuit Court, an appeal was taken, which it is contended by the appellees,was irregular, for several reasons. It is fust objected that no bond, such as the law requires, was given by the appellant. The revised statutes, section 20, page 293, provide that any executor, administrator or creditor, may appeal from the decision of the commissioners, to the Circuit Court for the same county, if application for such appeal shall be made in writing, filed in the Probate Office within sixty days after the returning of the report of the commissioners.” In case of an appeal by a claimant, against the estate, the 21st section provides that “he shall within the time aforesaid, and before such appeal shall be allowed, give a bond to the adverse party, with sufficient surety, tb be approved of by the Judge of Probate, and filed in his office, with a condition that he shall prosecute his- appeal’ to effect, and pay all damages and costs which may be awarded against him on such appeal.” The 24th section requires that “the party appealing, shall procure and file in the Circuit Court to which the appeal is taken, at or before the next term- of such Court, after the appeal is allowed, a certified copy of the record, of the allowance or disallowance appealed from, of the application for the appeal, and the allowance off the same, together with the proper evidence that notice has been, given to the adverse party, according to the order of the Probate Court.”

The authority to allow an appeal, it is very clear, depends upon the giving of a bond by the claimant, with sureties to be approved by the Judge of Probate. If the bond is not given, that authority is not called into exercise, and the order allowing the appeal is nugatory. It is equally clear that the application for the appeal must be made in writing, by the creditor whose claim may have been disallowed. The application thus made, lays the foundation for the future action of the Judge of Probate, in respect to the allowance or disallowance of the appeal. The bond, it is to be observed, is filed in the Probate Office, and is not required to be certified to the Circuit Court, by the 24th section. The only knowledge we possess in relation to the bond, is contained in an affidavit of Alfred Hall, one of the administrators off Eaton. This affidavit was filed in support of the motion to quash the appeal, and purports to set out a true copy of the bond filed by the appellant, with the Judge of Probate. This bond appears to have been executed by “Leander Chapman, as principal, and Edwin S. Lathrop, as surety,” and.is without date. It recites that “Whereas the said Leander Chapman has this day made application in writing, for an appeal' from the decision and report of Peter Low, Henry Hürd, and Abram Wilcox, commissioners on the estate of said deceased, filed in the Probate Office of the County of Ingham, on the day of October, 1849:” “How, therefore,” &c., &c. There is -not the slightest evidence,, either in the bond or its recitals, connecting Dickinson with any-proceeding had before the commissioners, or showing that he was a creditor of the estate, or that the claim in which he was a party, or interested, had been passed upon by the commissioners. On the contrary, the recitals in the bond, show that Chapman was- the appellant, and that. he acted in his own behalf, and not as agent or attorney for Dickinson. The Judge of Probate, then, had no authority to allow the appeal, the “ claimant” never having given the bond required by law. There was > nothing before him upon which to predicate his order, allowing the appeal, inasmuch as the statute, in express terms, provides that “before such appeal shall be allowed,” the “ claimant" shall give bond with sufficient sureties. It may be said that the Judge of Probate, in allowing the appeal, and in passing upon the sufficiency of the sureties, acts judicially, and that, therefore, his acts cannot, in this collateral way, be the subject of review. This is, unquestionably, the true view to be taken of the statute; but this does not obviate the difficulty. When the application in writing, together with a bond executed by a “ claimant ” who is desirous of prosecuting an appeal, is submitted to the Judge of Probate, then his jurisdiction or authority over the subject is called into exercise, and his acts in relation to the sufficiency of the sureties, and to the propriety of allowing an appeal, are judicial. In other words, until the application and bond are filed, no foundation is laid for the exercise of judicial discretion, and'his acts are void.

If the appeal in the case before us is ineffectual, I know of no reasons why the Circuit Court may not determine the question of jurisdiction submitted to it. That tribunal is not called upon to review an erroneous determination of the Court of Probate, in the exercise of its judicial functions, but to declare, when the facts are properly presented, whether they were sufficient to justify any proceeding by the Judge of Probate, under the provisions of law relating to appeals from commissioners of insolvent estates, to the Circuit Court. If the determination of the Judge of Probate was nugatory, then no appeal, in point of law, was ever taken, and the Circuit Court has no jurisdiction of the cause. The most appropriate course to be pursued, to avail himself of the objection insisted upon by the appellee, was to procure a certified copy of the bond, inasmuch as the original is by law directed to be lodged in the Probate Office. In the case before us, what purports to be a true copy of the bond, appears by the affidavit of the administrator. As no objection was made to the manner in which the bond was brought to the notice of the Court, and especially as the error, if any existed, could have been corrected by the appellant, by procuring a certified copy from ;the Judge of Probate, we are inclined to consider the fact as properly established, that no bond was“given by the ajipellant, either by himself, •or by any person in his behalf and that the motion to dismiss the appeal ■must prevail.

A case in point is to be found in 16 Pick., 203, (Leach vs. Drake.) The Supreme Court of Massachusetts held in that ease, that as the bond in effect had not been given and filed in the probate office by the appellant,” but was executed by Lathrop and Torrey, and who did not appear to be the attorneys of the appellant-, and as the bond did not profess to bind him but themselves, dismissed the appeal.

It is unnecessary to notice the other grounds relied upon in argument, as a failure to give the bond is fatal to the proceedings.

It must be certified to the Circuit Court of the county of Ingham, as the opinion of this Court, that the motion to dismiss the appeal should be granted.


text:
    Carne, plaintiff in error, vs. Litchfield, defendant in error.
    Section 102, chapter 102, K. S. authorizing an examination of parties to suits in County Courts and Justices’ Courts, is only applicable to actions ex contractu and not to actions ex delicto.
    In an action for false imprisonment, the defendant being called upon to testify, declined answering on the ground that the answer might criminate him, or furnish a link in the chain of evidence which might tend to criminate. The priidlege thus claimed ivas allowed by the Court. In summing up, the plaintiff’s counsel commented upon the refusal of the defendant to testify, as furnishing evidence of his guilt to bo considered by the jury. Whereupon defendant’s counsel asked the Court to restrain the counseZ. The Court declined to interfere, observing “ tbat the refusal of the defendant to answer the question propounded to him on the ground stated, was not evidence against him in the cause, yet that it was impossible to prevent the jury from having the whole case and knowing what was done in. open Court in the course of the trial before them, or to prevent counsel from commenting upon it.” It was held that although the ruling of the Court excluding any inference of guilt from the refusal of the defendant to answer the question was correct, yet that the suggestion made by the Court upon such ruling, in tho hearing of the jury, the effect of which might deprive the defendant of the benefit of the rule, was erroneous.
    Error to Wayne Circuit Court.

      Fan Dyke & Emmons, for plaintiff in error.

      - J. M. Howard, for defendant in error.
   By the Court, Whipple, J.

- From an examination of the record, it appeal's that Came sued Litchfield in the County Court, to recover damages for an alleged assault and for false imprisonment. Upon the trial the plaintiff called the defendant as a witness, under the provisions of section 102, chapter 102, of the revised statutes. The defendant objected to being sworn as such witness, on the ground that the provision above referred to, applied exclusively to actions ex contractu. The objection was overruled by the Court, and Litchfield was sworn, and testified in the cause. Dining his examination, a question was propounded to the witness, which he- declined answering, on the ground that the answer to such question might eriminate him, or furnish a link in the chain of evidence which might tend to criminate. The privilege thus claimed by the 'witness was allowed by the Court. After the evidence was closed, the record further states, that one of the counsel for the plaintiff, (Mr. McReynolds,) in summing up the cause, commented upon the fact that the refusal of Litchfield to answer certain questions on the ground that his answers might criminate him, furnished evidence of his guilt, to be considered by the jury. Whereupon the counsel for the defendant interposed and requested the Court to restrain the counsel. The' Court declined to interfere, observing that the refusal of Litchfield to answer the question propounded to him on the ground already stated, was not evidence against him in the cause, yet it was impossible to prevent the jury from having the whole case, and knowing what was done in open Court in' the coiuse of the trial before them, or to prevent counsel from commenting upon it.” It also appears that in the final argument of the senior counsel, (Mr. Howard,) the same course of reasoning in respect to Litchfield’s refusal to reply to questions propounded to him, was permitted by the Court. A verdict having been found for the plaintiff and judgment rendered thereon, the cause .was removed to the Circuit Court by ■writ of certiorari. The Circuit Court reversed the judgment of the County Court and remanded the cause for a new trial; to reverse this judgment of the Circuit Court, the plains '.'” in the County Court prosecutes this writ of error.

The first question presented for our determination, is whether the ruling of the County Court, directing Litchfield to be sworn as a witness' in the cause, can be sustained. The solution of this question must depend on the construction of sec. 102, ch. 102, R.-S., which provides that “ in all trials of actions before a justice of the peace, or in the County Court, if the claim of the plaintiff or any part thereof be denied by the defendant, it shall be lawful for the plaintiff to require of the defendant to answer on oath to such claim; and if the defendant when sworn deny the same, the plaintiff shall not have judgment unless he establish his claim by legal evidence; and when the defendant in such action shall allege matter of payment or set off to the plaintiff’s demand, or set up any other valid defence in law, he may in like manner require the plaintiff to answer such allegation or defence on oath.” The section further provides, that “ upon refusal of either party, when subpoenaed by personal service of the subpoena, to appear, or appearing, upon his refusal to answer as a witness for the adverse party, as prescribed in this section, the Court may enter judgment against the party refusing as if the alleged claim or demand were confessed, or the allegation or defence admitted, as the case may bo.”

It is not to be denied that the statute does not in very clear language distinguish, as to the class of eases in which one of the parties to a suit may be called as a witness by the adverse party. We must, therefore, apply to it those maxims by which Courts are guided in the interpretation of statutes. The word “claim,” is sufficiently comprehensive to embrace actions sounding in tort, as those founded upon contract; and we are at liberty to give to it an enlarged or restricted meaning, according as the intention of the Legislature can be best carried into effect. In its popular sense, the word “claim” is usually applied to a demand^ founded in agreement or contract, and is seldom used when referring to a demand for damages a party may sustain in consequence of a wrong or injury done to his person or property. I am inclined to think, from a careful reading of the section, that this popular meaning of the word was the sense in which it was understood by the Legislature. This opinion is strengthened by the fact that the “claim” contemplated by the statute is such an one as that “payment orset-oflj” may be pleaded; such a “claim” as arises upon the breach of a contract express or implied. The section further directs that if upon service of a subpoena, either party shall refuse to appear, or appearing, upon his refusal'to answer as a witness for the adverse party, the Court may enter judgment against the party so refusing, as if the alleged claim or demand were confessed, or the defense admitted. Under the provisions of law .regulating the practice before the County Court and Justices of the Peace, effect can be given to this last provision, as the statute exacts of the plaintiff a statement of his claim, and the amount due after allowing all credits, which the defendant may by law set off. The defendant is also required, in pleading a set-off, to state with reasonable certainty, the nature of his claim.- With the claims of the respective parties thus stated, there exists no difficulty in giving full effect to that part of the section which directs the entry of judgment, as if the claim or demand were confessed, or the defense admitted. If the action was for the recovery of damages for a tort, there would be no basis upon which to found a judgment, unless tire damages were first assessed by the Court or a jury. The plea of payment is, of course, only applicable to a demand arising ex contractu. For these reasons I am quite clear that full effect can only be given to tho statute, by giving to the word “claim,” a restricted meaning.

With respect to the other allegation of error in the County Court, I am equally clear. The only facts which counsel are properly permitted to comment upon before a jury, are such as have been legally elicited upon the trial of the cause. These ordinarily afford latitude enough for counsel. To such facts it is the duty of the Court to confine counsel in addressing a jury. In practice, this rule, so necessary to a proper administration of justice, is not adhered to with great strictness; yet the rule itself, is preserved, and should be inflexibly enforced. I am not prepared to say, that the neglect to perform its duty in this respect by the Court, would ordinarily constitute such a ground of error, as to authorize the reversal of a judgment; but in the aspect which the record presents, I entertain the opinion that by the remarks of the Court; when its authority was invoked to arrest counsel in the discussion of topics foreign to the case, the jury may have been misled. . It is true, that the Court stated that the refusal of Litchfield to answer the questions propounded to him, was not evidence against him in the cause; hut at the same time remarked that it was impossible to prevent the jury from having the whole case, and knowing what was done in open Court in the course of the trial. The question of the admissibility of evidence, and what constitutes evidence, are questions exclusively for the Court; the weight or effect to he given to the evidence, is a question for the consideration of the jury. Allowing counsel to chaw inferences of guilt, from a refusal to answer questions which the Court held Litehfield was not hound to answer, would seem to imply that the Court deemed such a course of argument legitimate and proper. But the most objectionable feature in tbis part of the transaction, consists in the remarks made by tbe Court, in tbe hearing of the jury, and from which it might be "fairly implied, that although Litchfield’s refusal to -answer was not in a strict legal sense, evidence against him, yet, that the jury might he influenced by that circumstance, in making up their verdict; since, in tbe language of the Court, “it was impossible to prevent tbe jury from having tbe whole case, and knowing what was done in open Court, in the course of the trial before them.”

It is unnecessary to say that the ruling of the Court, excluding any inferences of guilt, from Litchfield’s refusal to answer questions, the answer to which might criminate him, was correct. The error of the Court consists in making a suggestion in the hearing of the jury, the effect of which, might deprive the defendant of the full benefit of the rule of law which governs in such circumstances.

The judgment of the Circuit Court is affirmed.

Vide Greenleaf Ev., § 45, Rose vs. Blacfcmore. Ryan & M., 333. 21 O. L. R., 465.


author: By the Court, Pratt, J.

text:
    Truesdale for the use of Owen vs. Hazzard et al.

    In declaring -upon a bond executed uu^er section 13, chapter 122, R. S., of proceedings for collection of demands against vessels, it is not necessary to aver that the plaintiff made the application in writing in manner and form required by sections two and three of said chapter.
    Hor is it necessary to aver that the vessel released upon the execution of the bond, was at the time of its seizure within the jurisdiction of the Court issuing the warrant.

      This was an action brought by the plaintiff in the Wayne County Court, upon a bond executed by the defendants under the provisions contained in chapter 122, title 24 of the Revised Statutes of 1846, and entitled, “ Of proceedings for the collection of demands against ships) boats and other vessels.”
    . The hody of the'declaration is in these words: “For that whereas, the said defendants heretofore, to wit: on the 19th day of October,. 1850, by their certain bond or writing obligatory sealed with their seals, the date whereof is a certain day and year therein expressed, to wit: the day and year aforesaid, acknowledged themselves to be held and firmly bound to the plaintiff in the sum of two thousand two hundred and fifty dollars, to he paid to the plaintiff; which said writing obligatory was and is subject to a certain condition thereunder written, wherein after reciting to the effect following, to wit: that whereas, on complaint made in writing on oath by the said Wesley Traesdale, on the 19th day of October, 1850, to E. Smith Lee, County Judge of the-county of Wayne, setting forth that he had a claim against the steamboat Empire State, amounting to the sum of $1,124 80, he, the said Judge, on that issued his warrant to the sheriff of the county of Wayne, , commanding him to attach, seize and safely keep .said steamboat, her tackle, apparel and furniture to answer said complaint; by virtue whereof the said sheriff had seized and taken the said steamboat: it was conditioned, that if the said obligors should pay all such claims and demands as had been exhibited to said Judge, which should .be established to have been subsisting liens upon said steamboat, pursuant to the provisions of chapter 122, of the Revised Statutes of the State of Michigan of 1846, at the time of the exhibiting the same respectively, then the said obligation to be void, otherwise to be of full force, as by said writing obligatory and the condition thereof will more fully appear.
    “And the plaintiff in fact saith that he has a demand upon and against the steamboat Empire State, for timber and lumber and other materials furnished for and in and about the construction of said steamboat, and that said demand amounted, on said 19th day of October, 1850, to eleven hundred and twenty-four dollars and eighty cents, and was a valid and subsisting claim and lien on said boat, under and according to the provisions of chapter 122 of the Revised Statutes of-Michigan of 1846,, at the time of the exhibition of the said complaint, to wit: on the day and year last aforesaid; which said demand is the same claim and demand which was exhibited to said E. S. Lee, Judge as aforesaid, and which is mentioned in said bond, and that the said steamboat Empire State, at the time when the said claim or demand was so exhibited to the said E. Smith Lee, Judge as aforesaid, to wit: on the said 19th day of October, 1850, was a boat or vessel used in navigating the waters of the State of Michigan, and that the said claim or demand and all the items thereof were debts contracted by Augustus Walker, the owner of said boat or vessel, and on account of timber and lumber and other materials furnished for and used in and about the construction, building and equipment of said boat or vessel, previous to the time when said claim was exhibited to said Judge as aforesaid. And the saidplairicffi damns, &c.
    “ Yet the said jdaintiff in fact saith, that the defendants have not paid, <fec. By means of which, <fec.” (Concluding in the usual form.)
    The defendants demurred, assigning for cause:
    1st. That the declaration does not show that the plaintiff ever -made the- application in writing, in manner and form as required by sections two and three of chapter 122 of the Revised Statutes.
    2d. That it does not appear that the said steamboat was within the jurisdiction of this Court, to wit: in the county of Wayne, when the application was made to E. Smith Lee, County Judge.
    The plaintiff joined in demurrer, and the County. Judge reserved the questions arising on the demurrer for the opinion of this Court.

      G. E. Hand, for plaintiff

      Eothrop (& Duffield, for defendant.
   By the Court, Pratt, J.

The County Court had jurisdiction of the subject matter of this suit, and form in pleadings was not required in that Court. The statute provides (R. S. of 1846, p. 379, Sec. 11,) “that declarations in actions ■arising upon contract, may be oral or in writing, and made without regard to any. form heretofore-.used, hut shall be a brief statement of the form of action, and the plaintiff’s claim or demand, setting forth the nature thereof; and if for money due upon contract, the amount so due after allowing all credits.” In suits upon this class of bonds, the plaintiff is especially required in declaring, to state his demand, and to aver that it was a subsisting lien on the vessel or boat seized, &c.; and to assign as a breach of such bond, the non-payment of the demand. (R. S., Chap. 122, Sec. 11.) The declaration in this cause fully complies with these general and special requirements of the statute. At common law it is only necessary in pleading, to state the facts with certainty to a common intent, so that they may be understood by the opposite party, the jury,.and the Court; and yet, says M!r. Chitty, “it must be confessed that it is difficult in practice to apply this rule to cases which often occur.” The declaration in this cause, when tested by this common law rule alone, must be adjudged sufficient, as it does set out the plaintiff’s cause of action with certainty to a common intent, .and otherwise contains all the substantive averments necessary to a valid declaration on such a bond at common law, and upon which the merits of the cause could have been fully tried.

The averments suggested by the demurrer, were not necessary, either ■at common law or under the provisions of the statute. The plaintiff had a right to rely on the bond, and to confine his declaration strictly to it.' The officer who issued the warrant for the seizure of the boat had jurisdiction of the subject matter, by statute, and upon application and complaint in writing, was authorized to issue the warrant. The recital in the bond of the proceedings before the officer, and which fully appears in the declaration, imports prima facie at least, a legal consideration for the execution and delivery of the bond by the defendants; and the plaintiff in declaring upon it, was not bound by any rule of pleading, -to aver any fact or matter not necessary for him to prove on the trial; ■and by no rule or principle known to the law could he be required, in •order to maintain his action on the bond, to prove the preliminary proceedings before the officer, or any other matter accruing anterior to the execution and delivery of the bond, and which, if proved, would constitute a defense to the action. If not required to make the proof, most - certainly he ought not to be required to aver it in his declaration. In •this class of cases it is only necessary under the statute, for the plaintiff to prove the execution of the bond and his claim or demand as set out in his declaration, to entitle him prima fade, to a recovery.

It is undoubtedly the correct legal doctrine, 'as established by this Court, in the ease referred to, (1 Doug. R., 384,) that inferior jurisdictions, not proceeding according to the course of the common law, are confined to the authority conferred, and can take nothing hy implication. Yet, it is difficult to perceive how that principle has any application to the cause under consideration. The County Court in which this action was brought, had jurisdiction of the subject matter of the suit, and pursued the authority conferred hy statute, in obtaining jurisdiction of the case and the persons of the defendants, as far forth as necessary' in this class of actions. And if the bond upon which the plaintiff instituted the suit is illegal and void, on the ground that the officer who issued, the warrant for the seizure of the boat, bad no jurisdiction, for the reason that the complaint was not in writing, or for the reason that the boat, at the time of the application, was not in the county of Wayne, how should the defendants have taken the advantage of it ? Not by demurrer "to tbe declaration. It was matter in defense, and must necessarily be made to appear aliunde tbe bond, and tlie defendants could only avail themselves of it by plea or special notice; this being the only legal way in which such defense could he interposed or made to appear. It is therefore the opinion of this Court that the demurrer to the plaintiff’s declaration is not well taken, and should be overruled by tbe Court below.

Let tbe case be certified accordingly.


author: By the Court, Douglass, J.

text:
    The People ex rel. Falkenbury vs. Miles.
    In an information in the nature of a quo warranto, charging the defendant with usurping an office, and requiring him to show his right thereto, and containing, in addition to the usuot averments, an allegation that the relator hy virtue and warrant of due and regular election is in law and in right entitled, to have, hold and exercise said office, it is not necessary for the relator to set forth his title to the office.

      Zothrop é Duffield, for relator.

      Van ByTce & Emmons, for defendant.
   By the Court, Douglass, J.

This is an information in the nature of a quo warranto, filed by the Attorney General, on behalf of the people, on relation of Smith Falkenbury, charging Marcus H. Miles, the defendant, with usurping the office of County Clerk of the County of. St. Clair, and requiring him to show his right thereto. In addition to the usxral averments contained in a pleading of this nature at the common law, the information alleges “ that said Smith Falkenbury, by virtue $id warrant of due and regular election, is in law and in right entitled to have, hold, and exercise” ■said office. The defendant demurs, on the ground that the title of Falkenbury is not specifically set forth. The averment referred to is intended to be in conformity with Sec. 3, Ch. 136 of R. 8., 1846, which provides that in addition to the other allegations in an information for usurping an office, the Attorney General may “set forth therein the name of the person rightfully entitled to such office, with an averment of his right thereto.” The object of permitting this unixsual averment appears from section 4 of the same chapter, which provides that the Coxxrt “shall render judgment upon the right of the defendant, and also upon the right of the party so entitled, or only upon the right of the defendant, as justice shall require.”

We do not think these and other less important provisions on the same subject were, designed materially to change the nature of the proceeding by information in cases like the present. It is still a proceeding on behalf of the people against the defendant, to try his right to an office which he is alleged to have usurped. The sole issue must be as to his right. He cannot controvert the person alleged to bt entitled, nor can the Court adjudicate upon it unless it is necessarily involved in the determination of the issue between the people and the defendant. In a State like ours, where public officers are nearly all elective, and where pixblic opinion must usually be an effective check upon all xisurpations of office without some pretences of right, founded upon the suffrages of the people, it is obvious that the question most frequently to be tried on informations like the present, will be whether the defendant received a majority of the votes cast at an election. If he did not, some one else must have received it. In such cases, and in others of like character, it is apparent that the right of some other person is necessarily involved in the issue between the people and the defendant, and being so involved, the statute permits the Court, when justice so requires, to adjudicate upon it. The averment in question seems designed merely to furnish some foundation in the record for this judgment. It is not travesable by the defendant, for it is no concern of his who is entitled to the office if he is not. Of course it is not admitted by his omission to traverse it. There is no need that it should he special, because no issue can he formed upon it. The defendant is required to set forth the facts which constitute his own title specifically by plea. An issue of law or fact must generally he formed by the replication to this plea. This is the issue to be determined. If it is determined against the defendant, and if it is a necessary inference from this judgment and the facts upon which it is based, that the person alleged to he entitled to the office the defendant has usurped, in law and in fact is so, the Court are authorized, from considerations of public policy quite apparent, to affirm his right by a direct adjudication.

It is sajd that under section seven of the chapter referred to, the latter judgment may he the foundation of a proceeding by the person in whose favor it is rendered, to recover damages against the defendant, arising from his intrusion, and that therefore the facts upon which it is based ought to be specifically set forth in the information, and the defendant should have an opportunity to controvert them. The answer to that is that they were set forth, and were or might have been controverted by the defendant in the issue between him and the people.

Demurrer overruled.


text:
    Turner vs. Lewis and others.
    In order that a lien may attach trader the provisions of Chapter T2S, R. S., of proceedings for the collection of demands against ships, boats, and vessels, for the breach of a contract of affreightment,'the contract must arise in this State. The lien does not attach, where there is a breach of a contract, which although to be performed within this State, was made in another State.

      Case reserved from Wayne County Court.

      Lothrop <fs Duffield, for plaintiffs.

      J. M. Howard, for defendants. ,
   By the Court, Whipple, J.

The question reserved for our opinion by the County Judge of Wayne County, is, whether upon the allegations contained in the declaration, a lien arises, which the plaintiff may enforce under the provisions of chapter 122 of the revised statutes of 1846. The agreement to transportóle box and its contents, is averred to have been made at Chicago, in the State of Illinois, between the plaintiff and the mate of the steamboat Wisconsin. The box not having been delivered at Detroit, upon demand duly made, the plaintiff instituted proceedings to enforce a lien, which he insists, attached upon the non-fulfillment of the agreement.

‘ Under the act of 1889, this Court held, that a new remedy was given to persons having claims against ships, boats, or vessels, navigating the waters of this State, but that a lien did not attach until the actual service of the attachment, issued pursuant to its provisions. In giving a construction to chapter 122 of the revision of 1846, this Court considered that a specific lien attached, for any of the causes of action specified in section 1 of that chapter; and that the proceedings authorized by that chapter had for their object the enforcement of such lien. This construction of that law forbade us from applying it to a contract for the delivery of supplies furnished a steamboat at Buffalo, in the State of -New York, upon the principle that we were nqt at liberty to give to the law an extra-territorial operation. The counsel for the plaintiff, however, insists that the decision of this Court in the case of Bidwell ns. Whitaker et al., (1 Manning Mich. R., 469,) is inapplicable to that before us, for the reason that the contract of affreightment, although made in the State of Illinois, was to be performed in the State of Michigan ; that as the City of Detroit was the place of delivery, and as delivery was refused, the breach of the contract occurred within this State, and thereupon a lien attached. I have felt every disposition to extend the provisions of our law in relation to liens, so as to embrace every class of creditors, whether foreign or domestic, and to apply its provisions to contracts made within or without this State. When the case of Bidwell vs. Whitaker et al., was under consideration, I endeavored to arrive at the conclusion that the law of -1846 was but a re-enactment of that of 1830. Such a construction would have been most consistent with a liberal and enlightened policy, and would have extended the benefits of its provisions to a large class of cases, and to a considerable portion of our citizens now excluded from its operation. But ■the statute of 1846 was too plain in its provisions to admit of any doubt, and hence this Court were called upon to give it a restricted and narrow construction.

After giving to the case before us a very careful examination, 1 have arrived at the conclusion that upon the facts disclosed in the pleadings no lien arises, and that tho demurrer must be sustained. The principles decided by this Court in the case to which reference has been made, are applicable to the facts of this easel This conclusion is, I think, warranted by a fair interpretation of the statute, especially when construed with reference to some general rules of law to which I shall advert. Among the rules recognized for the interpretation of personal contracts, there is one of general application, viz: that the law of the place shall govern in respect to their validity and construction; and this primary rule is founded on the reasonable presumption that both parties had in view the law of the place where they were when the contract was entered into. This rule is, however, subject to some exceptions and qualifications; if, for instance, the contract is to be oxeeuted in any other country than that in which it is made, it is a fair presumption that they took into consideration the law of the place where it was to be carried into effect and performed. This exception to the rule, however, cannot be said to be founded so obviously 'upon the .intention of the parties as the rule itself. Looking therefore, to what may have been the’presumed intention of the parties, are we at liberty to infer, because thejeity of Detroit was the place of delivery, that a .lien created by’the statute of this State, was contemplated by the parties. Nothing appears from the terms of the contract, except the fact that the place of final performance was within this State, to authorize the presumption”tkat a lien suggested itself to either party or was ever intended to be created. It is difficult to imagine that parties entering into this contract of affreightment, contemplated in respect to its construction or effect, any law but that of Illinois, where the contract was made. It would certainly be a strained inference to say that because the place of delivery was in another State, the local laws of such State, providing- for a lien in certain cases, would attach to a contract made in a foreign State. This could not well be contended for upon the principle that the laws of a State can generally only operate upon persons or property within its territorial jurisdiction. Keeping this principle in view, I am at a loss to determine how property in a foreign ■ jurisdiction can be appropriated, or a lien attach, by virtue of a statute of this State. A contrary rule would be to claim that the laws of this State by an inherent authority, are entitled to respect extra-tenitorially; which would strike at the foundation of that independence and sovereignty claimed by every State. Courtesy, comity and convenience do sometimes sanction the operation of foreign laws upon contracts; especially among nations between whom commercial relations exist I cannot therefore think that the contract in this case before us was entered into with an express view to the statute of this State creating a lien in certain cases, or that either party intended to be governed by it. Again: while it is a general though not universal rule of law, that where alien íb created by, the lex loci contractus, it will be respected in all places where the property may be found, or where the right can be enforced ' by the lex fori; on the other hand, where the lien does not exist in the place of the contract it will not be allowed in another country, although the law of the place where suit is brought would otherwise sustain it. (Story Con. Laws, sec. 322.) If our statute is construed with reference to this general principle, the views I have expressed receive additional sanction. This rule, it may be fairly presumed, was known to the contracting parties, and excludes the idea that a lien was contemplated by either.

But it is said that the statute gives a lien “for all damages arising from the non-performance of any contract of affreightment,” and that as the steamboat was within this State when the cause of action accrued, the lien attached, and the plaintiff is entitled to avail himself ’ of the remedy pointed out by. the statute .to enforce it. This was certainly a new view of the statute, and is entitled to the merit of being ingenious. In the case of Bidwell vs. Whitaker, we held that the lien created by the statute was confined to contracts or injuries arising within this State. The claim in that case was for supplies furnished a boat in the State of New York, and the opinion of the Court must be understood to refer to that fact. This case, it is suggested, is distinguishable from that, in the particulars already stated, arid demands the application of a more liberal ride of construction. After giving to the statute a careful examination, I am unable to accede to the correctness of the reasoning by which the construction contended for is attempted to be sustained. I think the fair interpretation of the statute requires that in order that a lien may attach for non-performance of a contract of affreightment, the contract must arise in this State. The lien attaches where the contract is made, and is created by virtue of the contract and riot in consequence of its breach. Indeed this interpretation would seem to result from the principles I have discussed and attempted to sustain. If those principles are correctly stated, we are not at liberty to give to the statute such a meaning as will conflict with those principles, unless the words of the statute warrant the belief that the Legislature intended to substitute a new rule and overthrow the old one.

The case of Hale vs. The New Jersey Steam Navigation Company, (15 Conn. R., 539,) is, in some of its facts and principles, analogous to the .one I am considering. It grew out of the loss, by fire, of the steamboat Lexington. The plaintiff having carriages in New York, which he was desirous of transporting to Providence or Boston, the defendants received them, and undertook to convey, and deliver them at those places. The carriages were not delivered, and an action for their loss having been brought in the Courts of Connecticut, it was held that the contract was to be construed according to the laws of the State where it was made. It was claimed by the defendants, that they were not hable, because of the public notice they had given, that they would not be responsible for losses, other than what arose from the fault or negligence of their officers or servants; that by the common law, a common carrier may limit his responsibility, by express contract, or by public notice of such intended limitation. In pronouncing the opinion of the Court, Williams, C. J., said: “There is nothing in this case, either from the location of the parties, or the nature of tfc* contract, which shows that they (the parties) could have ha<i any other law-in view, than that of the place «fhse it was made. Indeed, as the goods were shipped, to be transported to Boston or Providence, there would he the most entire uncertainty what was to he the law of the case, if any other rule was to prevail. We have, therefore, no doubt that the law of New York, as to the duties and obligations of common carriers, is to he the law of the ease.” And notwithstanding the Court determined that by the modem English eases, common carriers could restrict then-responsibility by notice to that effect, yet they administered the law of New York, whieh allows no restrictions, hut such as were recognized by the earlier cases in England.,

If, in this case, the lex loci contractus governed in respect to the liability of common carriers, i t applies with increased force to the case before us.

Our answer to the question presented for our advice must be in the negative, and that the demurrer ought to be sustained.

        Vide Mich. Central Railroad vs. "Ward post.


text:
    Comstock & Halsey vs. Hollon.
    £q trover against a sheriff, by parties claiming the proporfcy levied on, by virtue of a chattel mortgage, a judgment in favor of the party for whom the sheriff levied on the property claimed, must be alleged in pleading, and proved, to authorize the introduction of proof showing the chattel mortgage fraudulent.
    Xn such case although the question of fraud was litigated in the Court below, yet as the notico appended to the plea did not aver a judgment, it will not be presumed one was proved.
    Case reserved from Calhoun Circuit Court.

      Grary & Hughes for plaintiffs.

      J. Van Arman, for defendant.
   By the Court, Whipple, J.

This action was originally brought by Comstock & Halsey against Hollon, in the County Court of Calhoun county; a judgment having been rendered in favor of the defendant, the cause was removed to the Circuit Court by certiorari.

An examination of the record shows that the action was trover, to-recover damages for the unlawful conversion of property. On the trial it appeared that Hollon was sheriff of the county of Calhoun, and took the property by virtue of an execution in a cause wherein Dibble & Dibble were plaintiffs and one Baker was defendant. Comstock & Halsey claimed the property by virtue of a chattel mortgage, executed to them by the said Baker, and which was duly recorded.

The principal fact to which the evidence was directed was, to show that the chattel mortgage was, under the provisions of our statute, void; this was the real issue tried between the parties. The County Court allowed the defendant to introduce evidence to impeach the mortgage, although no foundation was properly laid by showing the existence of a judgment against Baker. It is well settled that to authorize the introduction of evidence tending to show the mortgage fraudulent, the defendant was hound to allege and prove that Dibble & Dibble were judgment creditors; thus placing themselves in a position to show the mortgage fraudulent as against them. This was not done, and the judgment is for that reason erroneous.

It was suggested that as the question of fraud was litigated below, the Court will presume, in the absence of any showing to the contrary, that a judgment was proved. It is true that where the record is silent, this Court will in some cases intend that all the facts necessary to support the judgment were duly proved. In the case before us, however, the notice appended to the plea, does not aver a judgment, and the Court will not presume that any evidence was introduced or allowed by the Court, not warranted by the issue on the record. This view renders any opinion upon other questions reserved, unnecessary.

It must he certified to the Circuit Court of Calhoun county, that the judgment of the County Court ought to be reversed.

- Certified accordingly.


text:
    Chamberlain vs. O’Keefe.
    In' appeal cases, where a party to bo served with a notice is not a resident of the County, and appeared on the trial below, by agent or attorney, service of the notice should be on such , agent or attorney. Where there is no agent or attorney in the case, notice should be sont by mail to the party himself, if his residence can be ascertained.
    Error to St. Clair Circuit.

      Van Dyke & Falkenbury, for plaintiff in error.

      W. T. Mitchell, for defendant in error.
   By the Court, Pratt, J.

The only question to he determined in this cause, is whether the appeal was properly dismissed by the County Court.

The statute under which the appeal was taken, required the County-Court, on the second Monday after filing the return of the justice, on application of the appellant to name a time for hearing the appeal; and also required the appellant to serve notice in writing of the time so named, on the appellee personally, at least ten days before the day of hearing; and if such personal service could not be made,.then the appellant was required to leave the notice at the appellee’s last place of abode. (R. S. of 1846, p. 409, Sec. 160.) By section 162, the Court was required, in case the appellant failed to make the application, or to serve the notice, to dismiss the appeal.

This provision, when considered in connection with the other provisions of the act and the object in view, must be regarded as directory in its character, and not imperative as contended in argument. And yet, with this construction, if the application was not made, or if the notice was not served, the Court was justifiable in dismissing the appeal, unless some • reasonable excuse for the omission was rendered by the appellant. The application -by the appellant was, as appears by the record, made on the 22d day of June, and the first Monday of August then next, was the day named by. the Court for the hearing of the appeal. But the notice was, not served, and the only excuse for the omission rendered to the Court, is contained in the affidavits of the appellant and his attorney. The appellant in his affidavit, states he was informed by his attorney that no appearance had been entered of record for the appellee; that said appellee was and had been, a resident of the city of Detroit for more than ten years. The attorney for the appellant, in his affidavit testifies to the effect, that after the return of the justice was filed, he caused his appearance to be entered on the clerk’s docket, as attorney for the appellant, in accordance with rule *7 of said County Court; that afterwards, and at different times, he examined said docket, for the purpose of ascertaining whether any attorney had appeared for the appellee, and that no attorney’s name appeared thereon until the 31st day of July, and for that reason he instructed the appellant that he need not serve the notice.

These affidavits do not contain a sufficient excuse for the omission to serve the notice. They do not show anything constituting a reasonable degree of diligence on the part of the appellant to serve it, or to do that, which upon his own showing, he should have been required to do, in order to entitle himself to any relief from the Court. It was not only his duty, but he was legally required to use a reasonable degree of diligence in serving in some way the appellee with notice of the time appointed. The appellee was the plaintiff in the cause, and if as the appellant stated in his affidavit, he had not been in the county for a long time, the legal presumption is, in the absence of any Showing to the contrary, that some person either as agent or attorney, appeared and prosecuted the suit for him before the justice. If so, then service upon such person, whether a member of the bar or not, would have been under the circumstances sufficient, the plaintiff being in fact a nonresident of the county. Such person would be legally regarded the plaintiff’s agent in the matter, as well after judgmentJ>y the justice as before. There being no such person in the county, and the appellee having no place of abode therein at which to leave the notice, the appellant should have sent it by mail or private conveyance, directed to him at the place where he did reside. That' place was known to the appellant, and was comparatively within a short distance of the county in which the appeal was pending, with constant daily communication between the two places. Yet the appellant did not take a single step towards sending the notice to the appellee either by mail or private conveyance, during the month or more, granted by the Court for the purpose of serving it.

But the attorney of the appellee in an affidavit made by him, and upon which the motion to dismiss the appeal was founded, testifies, that as early as the July term of the County Court for that same year, ho caused his appearance, as attorney for the appellee, to he entered of Tecovd; aud that his name always afterwards appeared on the calendar as such attorney. That he was in fact an attorney at law, and kept an office in the village of Port Huron, fin the said county of St. Clair.' But independent of this evidence, the Omission to give the appellee notice in some way, was not, in view of the circumstances, sufficiently excused, and the County Court was therefore justifiable in dismissing the appeal.

The judgment of the Circuit Court, affirming that of the County Court, niust he affirmed.


author: By the Court, Green, J.

text:
    Clement, Administrator, vs. Comstock et al.

    An arbitration bond, with a condition that judgment should be entered in a Court of record, on theaward which should be made, is validas a common law bond, where it is evident from the conduct of the parties that they did not intend to make a statutory arbitration, and where the forms reqrdsite to such arbitration were not pursued by them.
    "Where the award was, that C. and H. should re-deliver to V. all the personal property which they had taken by virtue of two chattel mortgages, (describing said mortgages,) and also by a certain writ of replevin, (specifying it,) held, that as the presumption was, that the mortgages and replevin writ showed what the property was, the award in that respect was sufficiently certain.
    An award directing the return of property, but not expressly determining the title to it, or directing releases to be executed, is sufficiently certain.
    An award in the alternative, (both alternatives being certain,) is not void for uncertainty. "Where one of the alternatives is certain, and the other uncertain or impossible to be performed, the award has been held good, for the party could satisfy its requirements by performing that which was certain.
    Where a submission is general as to all controversies between the parties, the Court will intend, xmtil the contrary appears, that the arbitrators decided all matter’s in difference.
    An award is in time, although not made and ready for delivery until a late hour in the evening of the day limited for its completion.
    Arbitrators may retain the award in their hands until paid for their services.
    Where the arbitrators, without the power given in the submission, award as to costs, that does not vitiate the entire award, but renders it void for the excess.
    A clause in a submission bond, submitting all controversies between the parties, and “all matters relating thereto,” would seem to import authority in the arbitrators to award concerning the costs of the arbitration.

      Error to' Calhoun County Court.
    The plaintiff brought his action in the Court below, upon an award of arbitrators.
    Bonds were executed by the defendants on the one part and David Vrooman on the other part, to each other in the penalty of $1,000, conditioned that said parties would each on their part submit to arbitrators therein named, “to hear all the proofs and allegations of the parties, of and concerning all suits, controversies, trespasses, claims, demands, accounts, notes, bonds, orders, drafts, chattel mortgages, and every matter in dispute and unsettled between the said Vrooman and the said Oliver C. Comstock, Jr. and Henry Halsey, and the said Vrooman and the said Oliver C. Comstock, Jr., Robert <& William Halsey, and any and either of them, and all matters relating thereto, and that the award of the said arbitrators be made in writing, subscribed by a majority of them, and attested by a subscribing witness, ready to be delivered to the said parties on or before the eighth day of January (then) next.”
    “ And the parties to these presents do hereby agree that judgment in the Circuit Court, for the county of Calhoun, shall be rendered upon the award which may be made pursuant to this submission, to the end that all matters in controversy in that behalf, between them, shall be finally concluded, (pursuant to the statute for determining controversies by arbitration,) then the above obligation to be void, otherwise to remain in foil force and virtue.”
    The arbitrators made an award in writing, stating “ that they, to whom matters in controversy existing between Oliver C. Comstock, Jr. and Henry Halsey of the one part, and David Vrooman on the other, were submitted, referring to their respective bonds of submission, having-heard the proofs and allegations of the parties, and examined the matters in controversy submitted by them, do make this award: That Comstock & Halsey pay to Vrooman $129 5; return all the property taken by virtue of certain chattel mortgages, and all personal property taken by a writ of replevin, or to pay $520 and deliver up the said chattel mortgages and obligations connected therewith, and a mortgage on real estate, and pay all costs and charges of the arbitration, and pay the arbitrators eighteen dollars.”

      The'award was made on the 8th day of January, a few minutes before 12 o’clock at night, and was not ready to be delivered until between 11 and 12 at night.
    •" On the trial below, judgment was rendered for the defendants, upon which the plaintiff, who prosecutes as administrator of said David Vrooman, sues out his writ of error to this Court.

      Crary db Hughes, for plaintiff.

      J. M. Howard and J. W. Gordon, for defendants.
   By the Court, Green, J.

The defendants object to a recovery by the plaintiff in this cause, •and insist that the award of the arbitrators was void, because,

1st. The arbitration bond provides that “judgment in the Circuit Court for the County of Calhoun, shall be rendered upon the award which may be made pursuant to the submission, to the end that all matters in controversy in that behalf between the parties shall be finally concluded, pursuant to the provisions of the statute for determining controversies by arbitration;” and the statute not having been conformed to, either in the submission or the award, no judgment could therefore be rendered upon it;

2d. The award is uncertain; and

3d. The arbitrators did not pass upon all the matters submitted to them.

1. The arbitration between the original parties is regarded by the plaintiff as a common law arbitration, and the award is declared on as having been made upon a common law submission, and unless it can be sustained as such, it is evident that the action cannot be maintained. The true inquiry in order to determine this question is, what was the understanding of the parties ? Did they undertake to submit their controversies to arbitration, in conformity to the provisions of the statute, in order that a judgment might be rendered upon the award, or-did they entirely disregard the statute ? The only indication of any intention to make it a statutory arbitration, is the clause in the condition of the bond before recited. The statute then in force, (H. S., 1838, p. 531,) provides for a submission to arbitration By a sinqfie agreement to be signed and acknowledged before a justice of tbe peace, and the substantial form of such agreement is prescribed by the statute. The form of submission adopted by the parties, was a bond, neither signed or acknowledged before a justice of the peace, and no .regard whatever was had to the form of proceeding required by the statute. It follows that the Circuit Court had no jurisdiction to render a judgment upon, any award which might have been made pursuant to the submission,, but it does not necessarily result that the submission and award were void.

The counsel for the defendants cite the case of Inhabitants of Deerfield vs. Ames, (20 Pick, R., 480,) as sustaining their view of this question. The proceedings in that case were, in form, strictly conformable to the statute; but the submission was signed and acknowledged before the arbitrator himself, acting as a justice of the peace, and therefore gave him no jurisdiction as an arbitrator, under the statute. The Court in that case, held that the award could not be sustained as a common law award; and they say that it was in the contemplation of the parties that the proceedings of the arbitrator should be subjected to the supervision of the Court of Common Pleas, and that to hold the agreement for arbitration good at common law would be substituting another and very different contract from that into which the party entered. They put their decision upon the ground that the parties intended to enter into a statutory arbitration, and no other; and that intention was clearly evinced by their complying in all respects with the form of the statute.

In the case before us, no attempt was made to conform to the statute-When the bond was drawn, the parties may have intended to make it a statutory arbitration ; but if so, it is apparent that such intention was. abandoned by them, and that they did not, when the bond was executed, or subsequently, contemplate any other than a common law arbitration. This ground of objection is therefore untenable.

2. It is claimed that the award is void for uncertainty. It is a very reasonable rule, that every award, to be binding, must be certain; for the object of parties in submitting then disputes to arbitration, is to make an end of litigation, and if the award were uncertain, instead of putting an end to the controversy, it would be only a fresh source of litigation. The certainty which, the law requires, however, is certainty to. a common intent. (1 Burrows, 177.) Courts will not intend an award to be uncertain, but tbe uncertainty must appear on tbe face of' the award, or by averment. Every thing is to be intended in favor of an award, and the rule id certum est quod certum reddi potest, applies to awards as well as any other instruments. Cargey vs. Aitcheson, (2 Barn. & Cress., 170; same case in error, 2 Bingham 199.)

The submission under consideration was general, of “all suits, controversies, trespasses, claims, demands, accounts, notes, bonds, orders, drafts, chattel mortgages, and every matter in dispute and unsettled between the' said Yrooman and Oliver C. Comstock, Jr., and Henry Halsey; and the said Vrooman, and- the said Oliver C. Comstock, Jr., William Halsey and Robert Halsey, and eveiy or either of them, and all matters relating thereto.”

The arbitrators, pursuant to such submission, awarded that said Oliver C. Comstock, Jr,, and Henry Halsey, pay to David Vrooman one hundred and twenty-nine dollars and seventy-five cents, and that said Comstock & Halsey redeliver and return to said Vrooman all personal property which they have taken by virtue of two certain chattel mortgages given to them by said Vrooman, one of which said mortgages was dated the 11th day of April, 1844, and the other the 16th day of May, 1844, and also all the personal property taken from said Vrooman’s possession by virtue of a certain writ of replevin sued out by said Comstock & Halsey before Joseph Chedsey, a justice of the peace for Calhoun county, against said Vrooman, on the 18th day of December? 1844, or in the event said property is not forthwith returned, that they pay to said Vrooman the sum of five hundred and twenty dolíais — that said Comstock & Halsey deliver to said Vrooman the said chattel mortgages and all obligations with said mortgages connected, and also the bond and mortgage on real estate which they hold against said Vrooman, dated the 12th day of April, 1844, and that they cancel or cause the said morigage to be satisfied of record — that said Comstock & Halsey pay all costs and charges of the arbitration, and that they pay to said arbitrators for their services the sum of eighteen dollars.

It is assumed that the reference to the two chattel mortgages is not a sufficient notice to the defendants what property they are to deliver up under the award, and that the omission to specify the articles taken. on the writ of replevin is a fatal uncertainty. The particular property to be returned is sufficiently pointed out by the award, so as to distinguish it from any other. Were each article particularly described, in case of any controversy about its identity, it would be necessary to establish such identity by parol proof. We are not to presume that there was any dispute between the parties as to what property had been taken by virtue of the chattel mortgages, or of the writ of replevin, in the absence of any averment or proof of the fact. It must be presumed that the mortgages and the writ of replevin show what the property was. In the case of Jackson vs. Ambler, (14 J. R., 108,) lands had been awarded to several persons according to their respective possessions, without any other description. This was held to be sufficiently certain, because their identity was susceptible of being ascertained from the specification contained in the award.

In the case of Brown vs. Hankerson, (3 Cow. R., 70,) the award was holden to be void for uncertainty. It directed that one party should deliver or cause to be delivered to the other “ his right and claim of the said farm? Ho farm was mentioned in the bond of submission, nor in any previous portion of the award, nor was there any averment in the pleadings in relation to it. The identity of the farm was not susceptible of being ascertained from any specification contained in the award.

These two cases fairly illustrate the rule as to the certainly which the law requires in an award, and there are many similar cases in the books. (See Watson on Arbitrations, 119 to 126; 11 Law Library, 61.)

But it is claimed that the award is uncertain and not final, because it does not determine the title to the property to be returned, nor does it direct releases to be executed. To this it may be answered that it is not made to appear that the title to the property was in dispute between the parties; and even if it did so appear, I think it is settled by tho award. The submission was general, of all disputes and controversies, and all matters connected therewith. The award directs -the re-delivery of certain goods and chattels, taken by virtue of certain chattel mortgages, &c., and that the mortgages and all obligations connected with them, be delivered up to the mortgagor, or in default thereof, that the mortgagees should pay to the mortgagor the sum of $620. The legal effect"of a return of the property taken, and delivery up of the mortgages under which it was taken, would be to settle the title in Vrooman; and if, on the other hand, the defendants chose not to deliver up the mortgages and return the property, upon payment of $520 the title would be established in them. Had the parties mutually entered into an agreement for a final settlement of all disputes and controversies, and reduced it to writing in the language of the award, there can be no doubt that such would have been its legal effect; and the same rule in regard to certainty applies, to awards, which applies to other instruments. The award does not appear to be uncertain in this respect, and wó must therefore intend that it is certain. (11 Law Library, 63.)

It may be remarked that there does not appear to be any ground for ■assuming that the $520, which was to be paid in the event that the property was not re-delivered, was intended as a penalty. The fair presumption, in the absence of any averment or proof as to the value of the property, is that the sum awarded was its fair value as ascertained by the arbitrators. But it is objected that the award is in the alternative, and therefore uncertain. I do not find any case where an award has been held bad for that reason, and it has even been decided that where one of the alternatives was certain, and the other uncertain or impossible to be performed, yet the award was good, for it is said the party can perform the award by performing that alternative which is certain. (11 Law Library, 63; 1 Taunton, 554.) In this ease both alternatives are sufficiently certain,' and the defendants might have performed either of them.

3. The third objection urged upon the argument is, that the arbitrators did not pass upon all the matters submitted to them: for that an account for sawing lumber, in favor of Comstock and William <fc Robert Halsey, was presented to the arbitrators and not acted upon by them.

It was assumed upon the argument that the award was made under a submission with an ita quod, and that therefore, unless it appeared upon the face of the award that all the matters submitted were passed upon, the award was bad. The submission was by bonds executed by the parties respectively to each other, in the penalty of one thousand dollars, conditioned to submit all disputes, controversies, claims, &c,, to the arbitrament of the persons therein named, the award to be made in writing, &c., ready to be delivered to the parties, on or before the 8th day of January nest after the date of the bonds. The words, “so as the award be made of all matters,” &c., or any words equivalent thereto, are not found in the submission. I cannot, however, see any sound reason for a distinction on that ground. In either case the Courts will always intend, where the submission is general of all controversies between the parties, that tho arbitrators have decided all matters in differerenee, until the contrary appears; and it is incumbent on the party who seeks to impeach an award on this ground, to show that there was some other' matter in difference, not decided by the arbitrators; and although the arbitrators should make an award of one matter only, when all matters in difference are referred, it will not be intended that anything further was in difference. (8 East., 449.)

In the case of Wright vs. Wright, (5 Cow. R., 197,) the submission was with an ita quod; and in reference to one of the matters submitted, the arbitrators stated in their award that they did “ not take into consideration the house and shed, nor pass no order upon it.” Thus it appeared upon the face of the award itself that the arbitrators 'did not pass upon all the matters submitted to them. The Court in delivering their opinion, say: “ It is a general rule, that where the submission contains an ita quod clause, the award will be void unless it comprehend all the matters submitted. This rule is invariable, when the particular matters submitted are specified in the bond. But when the submission is general, and an award concerning one or more things is made, it will be presumed, until the contrary be shown, that nothing else was referred to the arbitrators, or brought before them, by the parties.”

In Sawyer vs. Pratt, (9 Met., 170;) Rider vs. Fisher, (32 Eng. C. L. R., 363;) and Randall vs. Randall, (7 East., 82,) the awards were made under references of special matters, and it distinctly appeared' upon the face of the awards, that all the matters submitted had not been passed upon by the arbitrators. So also,, in the cases of Tribe vs. Upperton, (30 Eng. C. L. R., 91;) Doe ex dem. Madkins, vs. Homer, (35 Eng. C. L. R., 382;) and Ott vs. Schroeppel, (3 Barb. S. C. R., 56.)

Those cases are clearly distinguishable, therefore, from the one now under consideration. Here, the submission being general, and the award professing to be made upon all the matters submitted, it must be intended that all the matters presented to the arbitrators by the parties, were considered and passed upon in making up the award, unless the contrary has been averred and shown.

It is not necessary to determine in this cáse, whether the proof was admissible to show that the arbitrators, omitted to consider the account of Comstock & Co. and R. Halsey, against Vrooman, for sawing lumber. It appears from the testimony that Comstock and Henry Halsey caused this account to be presented, and proof to be given before the arbitratora in reference to it, and it is to be presumed that they claimed the benefit of it, and if allowed at all, that it was to be allowed in their favor. W. and R. Halsey were no parties to the submission, and no award could be made for or against them. If so, there can be no intendment against the award, because they are not named in it; but the Court must intend that the account was considered by the arbitrators in their award, unless the contrary is proven. Upon this subject, two of the arbitrators were sworn, and one of them testified that to his best recollection, “it was not thrown overboard;” aud the other, t]iat “it was considered.” There being no proof, and no intendment of law against this testimony, it establishes the fact that the account was passed upon.

I think the award was made within the time limited by the submission, although it was not signed and ready to be delivered until a late ^hour of the evening of the 8th of January; nor have I any doubt that they had a right to retain it in their hands until they'were paid for their services.

I am also inclined to the opinion that in a case of this kind, where all controversies between the parties, “and all matters relating thereto,” are submitted, it is competent for the arbitrators to determine in relation to the costs of the arbitration; but it is not necessary now to decide this point, for if they had not such power it would not vitiate the entire award, but only render it void for the excess.

Let it be certified to tbe Circuit Court for the County of Calhoun, as the opinion of this Court, that the judgment of the County Court in this cause ought to be reversed, and a new trial granted.


author: By the Court, Copeland, J.

text:
      De Forrest vs. Wright, et. al.

    Where m employee is exorcising a distinct and independent employment, and is not under the immediate control, direction, or supervision of the employer, the latter is not responsible-for the negligence or carelessness of the employee.
    Thus, where a public licensed drayman was employed to haul a quantity of salt from a war©' house, and deliver at the store of the employer at so much per barrel, and while in the act of delivering the salt, one of the barrels, through the carelessness of tbe drayman, rolled against and injured a person passing on the side-walk, it was held the employer was not ' liable for the injury.
    Case reserved from Wayne County Court-.

      Wells <£ Cook, for plaintiff.

      Van Dyke <& Emmons, for defendants.
   By the Court, Copeland, J.

It appears from the certificate of the County Judge who tried this cause below, that it was groved on tbe trial that the defendants were grocery merchants, and surviving partners of the firm of Jonathan L. Wright and Brothers, doing business in the city of Detroit, at the time the alleged cause of action accrued; that J. L. Wright, a member of said firm offered a drayman a certain sum per barrel, to baúl a quantity of salt from a ware house in said city to the store occupied by the defendants, to which offer tbe drayman agreed to accede, provided he could induce another drayman to join him, which he succeeded in doing; that it was part of the duty of such draymen, under such contract^ and under the usage and practice, to unlade and deliver ¡merchandize, salt, &c., on. the premises of merchants hiring them; and said draymen were in the act of unloading barrels of salt from a dray, with skids, in front of defendants’ store, when one of the barrels rolled against the plaintiff, who was walking along the side-walk at the time, threw her down, producing ' great hodily injury; also, that said draymen were public draymen, licensed as such, and using their own horses, and drays; and that it was part of their business and duty as such, to haul merchandize from one place to another in said city for merchants and others for hire. Upon those facts, the County Judge decided that the draymen were not the servants of the defendants, and the defendants, therefore, were not liable, and rendered judgment accordingly. Whereupon, the plaintiff moved for a new trial, alleging that said decision was in law erroneous," which motion, the Court below, reserved for the opinion of this Court upon the question of law arising therein.

The question to be determined by this Court is, whether the defendants stood in that relation to the drayman, the negligence of whom is the subject of complaint, that the maxim respondeat superior may be applied. As a general rule of law, the' party who receives an injury must seek for- his damages of the party by whom it was occasioned. The exception to this is in the case of master and servant, for the reason that the master in selecting his servant, should see to it, that he does not make choice of (an unskillful, careless, or vicious person. If he neglects his duty in this respect, it is not unreasonable that he should be held responsible for any injury resulting from the want of skill, or from the want of care of his servant.

This greatly vexed question, as an eminent Judge has pronounced it, has been very much discussed, not only in the English Courts, but in our own. The difficulty in deciding cases involving the question presented, has been in determining what facts and circumstances legally constitute the relation of master and servant, or under what circumstances one person will be held liable for injuries occasioned by the negligence or unskillfulness of another person employed in his behalf. To hold that every person, under all circumstances, would be responsible for injuries committed by another person while employed in his behalf, involves an absurdity no one would countenance. It would create a penalty from which few could escape; for every man is or ought to be be directly or indirectly, nearly or remotely engaged in the service or on behalf of his fellow man. But from an examination and comparison of the adjudged cases, the rule now seems very clearly to be this, that where the person employed is in the exercise of an independent and distinct employment, and not under the immediate control, direction, or supervision of the employer, the latter is not responsible for the negligence or misdoings of the former.

Among the numerous cases cited at the bar by the learned counsel, involving the question, is that of Laugher vs. Pointer, (5 Barn, & Cress., 547; 12 E. C. L., 312.) In that case the owner of a carriage hired of a stable keeper a pah of horses to draw it for a day, and the owner of the horses provided a driver through whose negligent driving an injury was done to a horse belonging to a third person. In that case there was a difference of opinion among the judges, as to whether the hirer was responsible for the negligence of the coachman. But Mr. Justice Littledale, in delivering a very able negative opinion, remarks that “ the jobman was a person carrying on a distinct employment of his own, in which he furnished men and let out horses to all such persons as chose to employ him.” The question having been left unsettled by such difference of opinion, it subsequently arose for the opinion of the Court of Exchequer, in Quarman vs. Burnett, (6 Mes. & Wel., 499,) where the opinions of Chief Justice Tenterden, and Mr. Justice Littledale, previously given, as to what is the principle of law in such cases, was adopted by Mr. Baron Parke in delivering the judgment of the Court.

The question again arose in Milligan vs. Wedge, (12 Adol. & Ellis, 737,) where the buyer of a bullock employed a licensed drover to drive it. The drover employed a boy, through whose negligent driving mischief was done. Lord C. J. Denman, in that case, observes The doctrine of my brother Littledale in Laugher vs. Pointer, is applicable here. The party sued has not done the act complained of, but has employed another who is recognized by law as exercising a distinct calling. The butcher was not bound to drive the bullock to the slaughter-house himself; he might not know how to drive it. He employs a drover, who employs a servant, who does the mischief. The drover, therefore, is liable, and not the owner of the beast.” Mr. Justice Williams, in the same case says, that where the person who does the injury exercises an independent employment, the party employing him is clearly not liable. “ I make no difference,” says J. Coleridge, “between the licensed drover and the boy. Suppose the drover to have done the act himself; the thing done is the driving. The owner makes a contract with the drover that he shall drive the beast, and leaves it under his charge, and the drover does the 'act; the relation, therefore, of master and servant does not exist between them.”

The same doctrine is recognized in Rapson vs. Cubbitt, (9 Mes. & Wel., 710;) Sproul et al. vs. Hemmingway, (14 Pick, 1;) Stone vs. Codman, (15 Pick, 297.)

Randleson vs. Murray, (8 Adol & Ellis, 109,) cited at the bar by the plaintiff’s counsel, it seems to me very difficult to distinguish in principle from the case made in the verdict before us, judging from the facts exhibited in the report of that case; and yet it has been quoted by English judges, in subsequent decisions, in support of the rule I have been considering. Williams, J., in his opinion in Milligan vs. Wedge, supra, observes: “I agree in the decision of Vandelier vs. Murray, for the warehouser’s servant, whether daily or weekly, is equally under the control of the warehousemen.” Although it does not appear from the reported case, that the master porter or his servant was under the immediate control and direction of the warehouseman, the decision cannot now be regarded as sound law, upon'any other hypothesis.

That class of cases cited, in'which the owners of vessels have been held liable for injuries done by the vessel through the carelessness or unskillfulness of the master or pilot, do not, I think, present a state of facts, analagous to those presented in this record. There the owner of the vessel employs the master and puts him on board. He is there the representative and agent of the owner, under his direction and control. And whenever it becomes necessary to take on board a pilot, the latter, for the time being, takes the place of the master. The master nor the pilot are engaged in a distinct, independent and separate employment, but are in the service of the owner of the vessel, acting in his behalf, and in his stead, and to such cases the maxim, he who acts by another, acts himself, clearly attaches.

A distinction, was adverted to at the bar, in the argument of this case, as existing between fixed real property and personal chattels; and such a distinction seems for a while to have been recognized by the English Judges. (Bush vs. Steinman, 1 Bos. & Pull., 404; Laugher vs. Pointer; Quarman vs. Bennet, Supra)

That distinction however, has ceased to exist. It is no longer the doctrince of the English Courts, unless the act complained of amounts to a continuing nuisance. Earle vs. Hall, (2 Met., 353;) Reeder vs. The N. W. Railway Co., and Habbit vs. The same. (Monthly Law Reporter, Vol. 2, No. 12, N. S., April, 1850.)

The record shows that the draymen -of the city of Detroit are a body of men in the exercise of a separate, distinct, and independent employment, using their own teams and drays, and duly licensed; and I can- see no reason, either in law, equity, or sound policy, that should exempt them from the liabilities of other persons engaged in the ordinary affairs of life, who are alone responsible for their acts. -

Undoubtedly any one or more of them might so place themselves under the immediate direction and control of another person as to raise the relation of master and servant; and that, whether we regard them strictly as common carriers, or otherwise. But the case exhibits no such state of facts.

Let it be certified to the Circuit Court for the County of Wayne, that it is the opinion of this Court that the motion for a new trial should he overruled.