author: Manning J.: Christianoy J.:

text:
    Henry Woodruff v. Andrew J. Phillips.
    One having a chattel mortgage on file in the City Clerk’s office, took it away for a few days, and without his knowledge the Clerk made an entry in the file book that the mortgage had been delivered to the mortgagee. Held that this entry was unofficial, and did not enable one wbo had bought the mortgaged property to hold it against the mortgage, which had been returned to the files before his purchase was made.
    A chattel mortgage properly filed is a public record, and belongs to the office ; and the Clerk has no right to deliver it to the 'mortgagee to be taken away. If allowed to be taken from the office and afterwards returned, no second endorsement of the filing by the Clerk is neoessary to make it notice thereafter under the statute.

      Heard July 19th.

      Decided October 21st.
    Error to Saginaw Circuit.
    The action was replevin, brought by Phillips for a wagon, which had belonged to one George W. Phillips, who had mortgaged it with other property to James B. Harvey, and afterwards sold it to Moses B. Hess, who sold it to the plaintiff below. Woodruff had become owner of the mortgage, and had taken the wagon upon it. The facts by which it was claimed that the mortgage had ceased to be a lien upon the property as against Hess and the plaintiff below, sufficiently appear by the opinion.

      Sutherland & Miller, for plaintiff in error:
    A mortgage not impeachable for fraud is good against subsequent purchasers, except so far as the statute provides. The statute requires the filing in the clerk’s office in the township or city where the mortgagor resides. This requirement was strictly complied with. The taking of the mortgage from the files might suspend the benefits of the filing, so far as such filing is relied upon to show constructive notice, during the absence of the mortgage from the clerk’s office, but no longer; for after the mortgage is again put upon the files, the statute . is complied with.
    The mortgage on the files is the record of which persons interested are charged with notice: — Bishop vs. Cook, 13 Barb. 326 — 329.
    The index to mortgages, though showing the names of the parties to mortgages filed, and the time of filling, affords no information as to what property is mortgaged. If consulted in the absence of the mortgage from the files, that book could give no definite information. Though it might show that the party proposing to sell had given a mortgage, and though this might be sufficient to put a party on inquiry, if he actually saw it, yet, as the mortgage is not on file, a person purchasing from the mortgagor, and not actually seeing the index, ought not to be charged with notice of the mortgage. Hence, the index is not a complete or auxiliary notice in favor of the holder of the mortgage.
    The index should not, on the other hand, be regarded as operating to prejudice the rights of the holder of the mortgage, .when snob index is found to contain an entry, made by the clerk, in addition to those required by the statute, of some matter of fact which the mortgage on file, if examined, would contradict. — 13 Barb. 326 ; 31 Me. 73; 40 Me. 284; 37 Me. 181.
    The mortgage in question was on file in the proper clerk’s office when Hess and the plaintiff below examined the index, and when they purchased the property. The index showed the filing. If the minute in the index may be relied on as giving information to the public that the mortgage had been withdrawn from the files, the minute of the filing must be conceded to be equally evidence that the mortgage, so withdrawn, had existed and been filed.
    The minute of the delivery of the mortgage to Harvey was extra official, and no person had a right to act upon it. If it is acted upon, the mortgage being actually on file, and not consulted, the purchaser has no right to protection. — 14 Me. 77.
    We are not obliged, however, to rely upon constructive notice, for in this case it appears that both Hess and the Plaintiff below had actual notice of the mortgage prior to their purchase. — 4 Kent, 189; 1 Hoff. Ch. 153; 15 Pet. 93; 2 Doug. Mich. 16; 2 Washb. on Real Prop. 594; 7 Blackf. 210; 16 Mass. 406 — 418; 2 Met. 623.
    Actual notice that such mortgage has been made is all that is necessary to negative the bona fides of a subsequent purchase, unless such acts of the holder can be proved as will, on the doctrine of estoppel in pais, prevent him from asserting the continuance of his lien. — 19 Wend. 514; 3 Mich. 123; 20 Wend. 17; 17 Wend. 25.

      W. L. Webber, for defendant in error:

    1. Defendant in error purchased the wagon in good faith, and is entitled to the protection of the statute.
    He purchased the wagon from Hess, and not from, the mortgagor, and if a free and good title passed from the mortgagor to - Hess, the mortgage lien of Harvey could not be revived by the sale of the property by Hess to defendant in error: — 16 Mass. 406; 8 Pick. 329.
    If one places a mortgage on file, and afterwards withdraws it, he loses not only the benefit of the filing, but he gives the public to understand that his mortgage is no longer an incumbrance on the property; and although, previous to the filing, a party may have had actual notice of the mortgage and its contents, or while on file may have read it, yet if the mortgagee removes it from the file, all persons have a right to presume, from that fact, .that the mortgage is discharged.
    2. If the mortgage was on file, pursuant to the statute, at the time of the purchase of the wagon by defendant in error, he will be chargeable with constructive notice, whether he, in fact, knew of it or not.
    That the mortgage was duly filed on the day it was made is not disputed. But in December following the mortgagee himself took it from the clerk’s office, and the clerk made a memorandum of that fact on the record.' Afterwards, it seems, in some way, the mortgage was again placed in the bundle of mortgages, but it was not re-filed nor re-entered, nor was any request made to the clerk, nor any fees paid for such a re-filing. We contend that, by the removal from the files and from the clerk’s office, the mortgagee, by his own act, lost from that moment all the benefits given by the statute — and could only again place himself in a position to be protected by re-filng his mortgage de novo. Was it re-filed? That it, by some means, was a few days afterwards slipped into the bundle, is not disputed. But this is not a compliance with the statute. The statute not only says that the mortgage shall be filed, but it defines what shall constitute that filing— §§ 3192 and 3193.
    That “noting in the book’’ is a part of the record, and that the public may rely on examination of the book alone, see 22 Me. 5G0.

      That inquiries of the clerk who has charge of the files and records of the office, are proper, and are contemplated by the statute, see Comp. L. § 3197; 13 Pet. 434.
    When Bishop v. Cook arose, the N. Y. statute required no index book except in the cities of New York, Albany and Rochester.
   Manning J.:

The statute requires the mortgage, or a true copy thereof, to be filed in the office of the township or city clerk of the township or city in which the mortgagor resides: Comp. B. § 3191. And it makes it the duty of the township or city clerk, on the payment of his fee, to indorse thereon the time of receiving the same, and to deposit such instrument or copy in his office, to be kept for the insj>ection of all persons interested: § 3192. He is also required to write in a book to be provided by him for that purpose, the names of all the parties to such instrument, arranging the names of the mortgagors alphabetically, and to note therein the time of filing each instrument or copy: § 3193. .The mortgage is to cease to be valid as against the creditors of the mortgagor, and subsequent purchasers and mortgagees in good faith, after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of the year, the mortgagee, his agent or attorney, shall make and annex to the instrument or copy on file an affidavit setting forth the interest the mortgagee continues to have by virtue of said mortgage in the property therein mentioned, <fcc.

The mortgage in question was duly filed on the first day of November 1860, at which time all of the requirements of the statute appear to have been complied with. On 15th December following, Harvey, the mortgagee, applied to the clerk for the mortgage, who handed it to him, and be took it away, and the clerk made the following entry opposite the names of the mortgagor and mortgagee and the entry of the filing of the mortgage in the book required to be kept by him for that purpose, viz: “-This mortgage delivered up to James B. Harvey.” The mortgage’ was afterwards returned. On the l’lth of the same month Harvey again applied for the mortgage. It was handed to him, and he again took it from the office, and in about twenty minutes returned it, after having released all the property mentioned in the mortgage except the wagon in question. On the 9th March 1861, some two or three days before Hess purchased the wagon of G. W. Phillips, the mortgagor, and sold it to A. J. Phillips, the defendant in error, he and A. J. Phillips called at the office of the clerk and inquired if there was a chattel mortgage on file from G. W. Phillips. The clerk informed them that there had been such a mortgage on file, but that it had been taken away by Harvey. Hess replied he was not satisfied with that, and that he wished to look at the record of chattel mortgages and see for himself. The clerk thereupon exhibited the book containing the names of the mortgagor and mortgagee, and the aforesaid entry made by him when the mortgage was first delivered to Harvey. No further search was made for the mortgage, which at the time was with other mortgages on file in the office. There is no evidence Harvey had any knowledge of the memorandum.

Hess and the defendant in error acted on a memorandum made by the clerk, without authority of law, or the knowledge or assent of Harvey. It may be hard the defendant in error, under such circumstances, should lose the wagon. But it would be equally hard to visit the accidental consequences of an unofficial act of the clerk on Harvey, who had done all the law required, and all an honest man could do, to secure his property. Why should he suffer for an unauthorized memorandum or entry of the clerk ? He had no knowledge of it, and the clerk was not' authorized by law to make it. A man cannot be deprived of his rights against law without his consent. All are chargeable with a knowledge of the law, and if the defendant acted in ignorance of it, the consequences must fall upon himself. The memorandum was no safer basis of action than the information previously given by the clerk. Having refused to rely on the latter, it is a little strange he should have given credence to the former when the file of mortgages was within his reach.

But it is objected that in taking the mortgage from the clerk’s office, and afterwards returning it without re-filing it — that is, without the clerk’s endorsing upon it the time of its return as an original filing, and entering anew the names of the parties and the time of re-filing in the book of mortgagors and mortgagees — the benefit of the statute was lost, for a want of compliance with its provisions.

The objection is more specious than sound. It assumes what is not true in fact, that the same mortgage may be filed more than once, and of course any number of times. The statute makes no provision for more than one filing, but in express terms provides that the mortgage shall cease to be valid as to creditors and subsequent purchasers and mortgagees in one year from the filing, unless an affidavit is made and annexed to the mortgage, stating the mortgagee’s interest in the property, within thirty days next preceding the expiration of the year. If the mortgage could be withdrawn and filed anew, there would be no occasion for the affidavit: and the law requiring it to be made and annexed to the mortgage, to continue the benefit of the statute beyond the year-, could be easily evaded.

The clerk had no business, after the mortgage had been properly filed, to re-deliver it to Harvey. The law provides for certified copies, but makes no provision whatever for the clerk to part with the instrument itself to any one. It is a public record, and belongs- to the office.

If defendant had called to see the mortgage while it was out of the office, or if Harvey had given his assent to the memorandum that misled defendant, the case would so far differ from the one before us as possibly to require a different decision. We however give no opinion on that point, as it is not before us.

The judgment must be reversed, and judgment on the facts found by the Court be entered for the plaintiff in error, with costs in both Courts.

Martin Ch. J. and Campbell J. concurred.

Christianoy J.:

I concur in the result at which my brethren have arrived, but I place my concurrence upon the single ground that Hess had no right to rely on the verbal information of the clerk, nor upon the memorandum of the delivery of the mortgage, entered in the .index; but was bound to examine the files. The names of the mortgagor and mortgagee had been properly entered in the book kept for that purpose when the mortgage was filed. This was an official entry, required by the statute, and it still remained there. The memorandum of its delivery to the mortgagee, entered opposite the names, ivas not required by the statute, and was but a private memorandum to enable the clerk to account for its absence: the purchaser therefore had no right to rely upon this, but only upon the original entry and the files.

I am not satisfied that a mortgagee has not the right at any time to take the chattel mortgage from the files and keep it himself, if he choose to run the risk of losing his security, as against subsequent purchasers and encumbrancers. The statute makes the mortgage constructive notice to purchasers &c., only in case the mortgagee shall file it. The filing therefore can only operate in his favor, and I can see no reason why he may not at any time renounce this benefit by withdrawing the mortgage from the files. But this is a point not involved in the case.

Judgment reversed.


source: Caselaw Access Project

author: Campbell J.: Martin Ch. J.: Campbell J.:

license: Public Domain

text:
    Theodore H. Hinchman and another v. Reuben Town and others.

      A. sued out of the Circuit Court an attachment, which was levied upon the property of his debtor. At the time of suing it out, only about eleven dollar# of his demand was due, but he subsequently recovered judgment for the whole amount on the debtor’s admission. B. also sued out an attachment against the debtor, which was levied on the same property after that of A., but he recovered judgment first, and caused execution to be levied on the property. B. then filed a bill in Chancery to have his lien decreed to have priority over that of A. It was held:
    1. That complainant by his attachment acquired a lien on the property, subject only to any lien which A. could lawfully hold under the statute; and that this lien of complainant could not be affected by a subsequent recovery of a judgment to which he was not a party.
    2. That he had a right to show, notwithstanding A.’s judgment, that the demand for which it was rendered was not due when the attachment was sued out.
    3. That less than a hundred dollars being due A. when his attachment was sued out, the Circuit Court had no jurisdiction; aad the whole amount of A.’s judgment was postponed to B.’s lien.
    Complainant included in his judgment a demand which he believed to be due, but which was not so. It was held that he did not, by so including it, debar himself of the right to have his priority protected in equity as to the amount included which actually was due.

      Held further, that the question of priority between A.’s judgment and that portion of B.’s which was not due when his attachment was sued out, must bo determined by the levy of execution ; and B.’s being first levied, gave him the first lien.
    A chattel mortgage was given in evidence which purported to be given to securo a certain promissory note. A note of tho description was not produced, but one of a different date was offered as the one designed to bo secured It was held that the filing of the mortgage was not notice of any other claim than the one described in it.

      Heard October 15th and 16th.

      Decided October 21st.
    Appeal in Chancery from Wayne Circuit. The case is fully stated in the opinions.

      Newberry & Pond, for complainants:
    There can be no doubt of complainants’ right to the relief prayed if the evidence shows the demand of defendants not to have been due when their attachments were levied. Drake on Attach. 213-215; Chandler v. Hale, 3 Mich. 531; 3 Humph. 431.
    The evidence was conclusive that the sale by defendants was upon a four months’ credit. The bills of sale have all the force of written contracts, and the burden to overturn them is upon defendants: — 24 Vt. 55; 15 Ala. 317.
    Complainants’ judgment is not invalidated by their including in it a sum owing but not actually due:--7 Cush. 587; 15 Conn. 504; 9 Fost. 237.

      Jerome & Swift and A. B. Maynard for defendants:
    If a party comes into a court of equity, he must come with clean hands. The court will not aid a party who is guilty of the same fraud which he charges upon the other party. The facts all show collusion between complainants and Young, and it is insisted that their conduct avoided their lien as to subsequent attaching creditors:-12 Pick, 383; 7 Greenl. 348; 3 Met. 49.
    By the attachment of Town, Smith and Sheldon, they acquired a lien on Young’s property; the complainants attached the property subject to this lien, and they are so far in privity with Young, that the judgment is as binding upon them as upon him, unless it be shown that the judgment was fraudulently or collusively rendered.
    If Young had not apjmared, of course the judgment would not, by the provisions of our statute, have been conclusive upon Young, and therefore not upon the complainants, and herein this case differs from the case of Sale v. Chandler. That complainants can only impeach the judgment of Town, Smith and Shelden against Young for fraud, is shown by the following authorities: — 7 Pick. 550; 8 Pick. 168; 5 Greenl. 188; 18 Penn. 482; 16 Penn. 18; 5 Johns. Ch. 555; 6 Ibid. 236 ; 4 Ibid. 329; 24 Mo. 44; 8 W. & S. 387; 13 S. & R. 199; 5 W. & S. 473; 7 Cush. 587; 2 Comst. 269; 26 Me. 411.

      And in Hale v. Chandler, the Court seems to base its decision upon the fraudulent intent of the plaintiffs, and their knowingly endeavoring, by their judgment, to take money which did not belong to them.
    But supposing that the Court entertains a different view of the law from that we have contended for, and that the question is not whether there was fraud, but whether in point of fact the debt of Young to Town, Smith & Shelden was due when their suit was commenced, must it not be a clear case to induce the Court to interfere with their judgment? We have not been able to find a case where the courts have interfered, when there was any doubt as to the question whether the debt was due or not.
    And in one case we find it expressly laid down, that it must be clearly shown that the debt was not due. — 4 Zabr. 150.
    And the admissions of Young are competent testimony on this point. — 5 Pick. 410; 12 Pick. 199.
   Campbell J.:

Complainants and the defendants Town, Shelden and Smith, upon the 15th day of August 1859, sued out attachments against, one Edwin Young, in the Circuit Court for the county of Washtenaw. The defendants’ writ was served first. Judgment was subsequently obtained, upon the admission of Young, in each case.

Complainants filed their bill to obtain priority over defendants, on the ground that, when the latter sued out their attachment, this claim was not due; it having, as was alleged, arisen out of sales of goods on a four months credit, which had not expired. Defendants answered, claiming upon facts set forth that their demand was due, and that, on. the other hand, complainants had attached prematurely on a demand all of which was not then due.

Upon comparison of the testimony we are entirely satisfied that the goods sold by defendants were sold on four months credit, which had not elapsed at the time of the attachment. There is no real conflict in the testimony on this point, although it is quite probable defendants may have misapprehended their legal, position. It appears that Young applied to defendants to purchase goods, and purchased a bill consisting of part what were termed cash goods, and part time goods, which were billed separately. That time goods were usually sold at four months credit, and in this case were marked on the separate bill and charged on the books at four months, while Young paid for the cash goods at the tim'e. Other items were ' purchased by order subsequently, which were charged separately in the same manner, and of which similar bills were forwarded. Mr. Shelden, who sold the goods, testified that when time goods were sold for cash, five per cent was deducted, which was not deducted in this case. The facts relied on to show there was no credit are - stated by Mr. Shelden as follows: “Young said he wanted to buy a bill of goods of us, and said he wanted to pay for them right along, and had nothing to do with his money but to pay for his goods in that way. Nothing was said about his buying or having the goods at four months, and he did not say he wanted them on any such time, except this. He asked me if Ave were going to charge him interest. I told him no, if he paid within four months.” He then explained the ordinary differences between time and cash goods, where no special contract was made, and that the clerk who made the bills was not informed of the arrangement. That clerk was not sworn in the case. James S. Johnson, who was sent by Shelden to obtain admissions from Young, stated to the latter that Shelden said Young was to commence paying for the goods right aAvay, and continue to pay until the whole bill was fully paid, and that, if the bill was paid within four months, Young was to ham the benefit of interest off. Young also states that if he paid within four months he was to have interest off.

Taking any of these statements, they show conclusively that the sale was a credit sale. And if a credit sale at all, it was a sale at four months. We do not regard the witnesses as in any way contradicting each other on this ¡joint. Mr. Shelden was mistaken in regarding the facts, as he details them, as making a cash sale. It is very evident Young was not to be regarded as in default for not paying within four months.

When defendants issued their attachment there was due only eleven dollars and twenty-five cents; and they had no right to levy an attachment for any greater sum. Hale v. Chandler, 3 Mich. 531. That sum was not within the jurisdiction of the Circuit Court. Same case.

It is claimed, however, that, inasmuch as Young permitted judgment to go against him for the full amount, no proceeding can now be had by other creditors to go behind that judgment, to inquire whether it was founded on a claim not due at the date of the attachment. This was fully considered in the case of Hale v. Chandler, and we shall not therefore discuss it at length. But the argument rests upon grounds entirely fallacious. Such a judgment is binding, perhaps, as between the parties. But it was rendered after complainants had levied their attachment, and thus obtained a legal statutory advantage; and there is no principle of law upon which such an interest once obtained can be divested, by proceedings to which they are not parties. They had a lien on the property attached, to the amount of their own lawful demands then due, subject only to any lien which defendants could lawfully hold under the statute. Young could neither increase nor diminish the lien of any party.

A portion of the demand of complainants was not due when their suit was commenced, and defendants insist that, by reason of including this in the judgment, complainants are guilty of a fraud, and cannot therefore come into a court of equity for relief. Where an attachment is made for a false claim, with the design of defrauding others, those who are wronged may perhaps avoid it entirely, although good in part. TJpon the extent of this 'rule we express no opinion. But when there is no fraudulent intention, and the act is done in good faith, equity will not. punish a party because of his conduct, by causing him to forfeit what lawfully belongs to him, provided it can be ascertained and apportioned. Acts termed constructively fraudulent, are so called from their being injurious to the rights of others, and do not of necessity involve actual fraud. If a party entitled to a lien for one hundred dollars claims it for two hundred dollars, a subsequent claimant obtains complete justice by having the excess over one hundred cut off; because he is then placed where the former had a right to place him originally. Where more is cut off he is made an actual gainer by punishing his adversary. In the case before us, complainants honestly regarded their debt as fully due; and it was due by their mode of averaging credits. But as Young had no knowledge of that rule brought home to him, so as to make it a part of his bargain, it could not apply to anticipate the maturity of future instalments. Complainants cannot obtain any relief on the portion of their claim which was thus anticipated. But they are entitled to relief upon the remainder. This proceeding is merely to obtain the benefit of a lien or security, and it does not depend upon or affect the validity or amount of the judgment as against Young, any more than if it were a fund set apart by contract for its part payment. Complainants are entitled to a lien to the amount of their debt actually due when the attachment was levied.

Defendants further claim that they are entitled to a priority of payment out of the funds realized from the attached property, by reason of a prior chattel mortgage for §1,200 executed by Young to one Leadbeater, and by him assigned to them. The testimony shows this claim to be unfounded. It does not appear that the mortgage covered any of the attached property. But, aside from this, the mortgage was given to secure a note of $1,200, dated July 11th 1859. No such note is shown to exist. A note of the same amount dated one month previous was produced, but Leadbeater testifies he cannot say it was given with the mortgage. It is certainly not within its terms, and the record of the mortgage is no notice of such a claim. It could not therefore defeat the attachment.

Complainants are entitled to a preference over defendants, to the amount of their judgment, after deducting $136.83 with interest from the date of the attachment, which was August 15, 1859.

The decree below must be reversed, with costs, and a new decree entered as above directed. As the sum realized does not exceed the preferred claim, it is unnecessary to make any further directions.

Manning J. concurred.

Martin Ch. J.:

I am inclined to believe the testimony of Shelden in preference to that of Young, and to hold that the goods were not sold by the defendants to Young upon a credit of four months, nor of any particular time. The positive testimony of Shelden is to this effect, and that of Young does not shake or weaken it, while the conduct of the latter very greatly impairs his credibility. But were it otherwise, if the conduct of the defendants was ah actual or constructive fraud upon the complainants, theirs was equally so upon the defendants, and neither is entitled to the aid of equity against the other. We do not sit here to balance frauds and give judgment in favor of the party whose fraud is the least.

I- think the decree of the Court below should be affirmed.

Decree reversed.

Mr. Swift called the attention of the Court to facts which had escaped notice, which showed that there would be a surplus of property after the- satisfaction of complainants’ lien under the foregoing opinion.

Campbell J.:

As it appears upon investigation that there is a balance of property remaining after applying enough to cover complainants’ lien under their attachment, the question arises how it shall be distributed. This must depend upon the priority of the rights arising from the judgments and executions against Young. It appears that complainants obtained judgment for their whole claim upon Young’s confession, and issued execution upon it against this property, in September 1859: while the defendants obtained Young’s admission, and entered judgment and sued out execution, in the month of January thereafter. Complainants, therefore, have a clear legal priority for the whole amount of their judgment; and nothing can be applied on that of defendants until the former is satisfied. The decree must be framed accordingly.

Manning J. concurred.

Chbistiancy J. did not sit in the case.


author: Manning J.:'

text:
    Edmund A. Wetmore v. Henry Aldrich, and another.
    A contract by which parties undertake to pay for the care and board of a lunatic so long as he shall continue in the Asylum, and to remove him therefrom whenever his room shall be required for preferred patients, is not terminated by a notice that the parties will no longer bo responsible for his care and board. To relieve themselves from liability they must remove him from the Asylum.

      Submitted October 10th.

      Decided October 28th.

    Edmund A. -Wetmore, Treasurer of the New York State Lunatic Asylum, brought assumpsit in the Circuit Court for the county of Cass, against Henry Aldrich and Ezra B. "Warner, upon the following contract, upon which he claimed to recover for the board of George F. Gardner at said asylum, from February 1st, 1860, to February 21st, 1861, at five dollars per week; for clothing furnished him between said days to the amount of $16.21, and for the expense of removing him to Cass county, amounting to $80 and interest:
    “ Whereas, George F. Gardner, of the town of Kendall, in the county of Orleans, N. Y., an insane person, has been" admitted as a patient in the New York State Lunatic Asylum, at Utica. Now, therefore, we, the undersigned, in consideration thereof, bind ourselves to Edmund A. Wetmore, Treasurer of said Asylum, to pay to him, and his successors in office, the sum of five dollars cents per week, for the care and board of said insane person, as long as he shall continue in said asylum, with such extra charges as may be occasioned by his requiring more than ordinary care and attention, and also to provide him with suitable clothing, and to pay for all such necessary articles of clothing as shall be procured for him by the steward of the asylum. And to remove him from the asylum whenever the room occupied by him shall be required for a class of patients having preference by law. And if he shall be’ removed at the request of his friends, before the expiration of six calendar months after reception, then we engage to pay board for twenty-six weeks, unless he shall be sooner cured, and also to pay, not exceeding fifty doT lars, for all damages he may do to the furniture or other property of said asylum, and for reasonable charges in case of elopement, and funeral charges in case of death. Such payments for board and clothing to be made semi-annually, on the first days of February and August, in each year, and at the time of removal, with interest on each bill from and after the time it becomes due.

      In witness whereof, we have hereunto set our names this 14th day of September, in the year, 1857.
    Henry Aldrich, Guwrdia/n for George R, Gardner.

    E. B. Warner.”
    It was proved on the trial that said lunatic was taken from Cass county to said Orleans county by his brother, Charles A. Gardner, and from thence was taken by another brother, Silas Gardner, and conveyed to said asylum at TJtiea, and then left with the above contract in the latter part of September, 1857. That the steward returned said lunatic to his guardian, the defendant Aldrich, in Cass county, in the latter part of February or the first part of March, 1861.
    It was further proved, that H.. N. Dryer was the steward, and John P. Gray the superintendent of said asylum, from the time said lunatic entered said asylum until his removal, and that the plaintiff was the treasurer thereof at the date of said contract, and of the commencement of this suit.
    It was further proved, that the board of said lunatic from February 1st, 1860, to February 21st, 1861, was unpaid, and that the steward had furnished him with necessary clothing of the value of $16.21.
    No proof of the expense of removal was made.
    It was further proved, that said superintendent, by letters dated January 16th,- 1860, notified defendants that “ Mr. Gardner must be removed from the asylum,” And that he, in his letter to defendant Aldrich, informed him that “ the institution in all cases, where persons are committed to its care, must look to the bondsmen and sureties for the payment of the expenses.”
    That in said letters he claimed that there would be due said asylum, on the first day of February, 1860, $345.83. This bill was paid by Gardner’s brothers.
    It was further proved, that said defendant Aldrich, by letter dated January 25tb, 1860, notified said John P. Gray as follows: “You say Mr. Gardner must be removed: now, as Mr. Gardner was put under your control by the Mr. Gardners of your State, I hope you will call on them to take care of him. I informed you in my former letter that I had no means to pay the demands you make, belonging to the Gardner estate. If you had sent your bill at the end of six months from the time I paid the last bill, there would have been no necessity for this; but instead of that you' have let it run over seventeen months without saying a word, not even informing me how Mr. Gardner was when I wrote you, and saying to you, I did’nt wish to have him remain there unless there was a prospect of his being helped, &c. Now, to save trouble, as the thing has gone so far, I make you this proposition: I will pay you one hundred and fifty dollars, even if it does come out of my own pocket, if you release me from all further trouble in the matter. I suppose you wont think of holding me any further than the estate of George Gardner will carry me.”
    It was further proved, that in January or February, 1860, defendant Aldrich wrote to said superintendent, that the defendants would not be held any further for the maintenance of George F. Gardner, and, requested him to remove him to his brothers, and that he had no more means in his hands belonging to George F. Gardner.
    The Court charged the jury, that by the terms of the contract read in evidence, either party thereto might put an end to his liability under it, by giving to the other reasonable notice thereof; that the notices given in evidence by the defendants were, if they were received, in the opinion of the Court such reasonable notice, and the defendants ceased to be liable, in a reasonable time thereafter, to the asylum for the care and board of the lunatic, and that if the jury believed the defendant gave to the superintendent of the asylum such reasonable notice, then the plaintiff could not recover for any expense in the care and board of said lunatic accruing thereafter from the defendants.
    This charge was excepted to, and verdict having been rendered for defendants, the case came up for review upon the exception.

      M T. Throop for plaintiff:
    The defendants could not terminate their liability by notice. To imply an agreement to this effect would be an implication against the express terms of the contract — which the law will not permit: — 1 Doug. Mich. 337; 7 Mass. 107; 2 Tenn. 104; 6 Tenn. 320 ; Chit. on Con. 25. Without such an agreement notice could not affect the rights of the parties. The defendants were responsible till they took Gardner away: — 3 Met. 1; 15 Mo. 592; 30 Penn. St. 524. Receiving money from Gardner’s brothers is no evidence of an agreement to discharge defendants, or to look to any one else for payment in the future: — 3 Met. 5. And the brothers, having given no written undertaking, had not made themselves liable for the future.

      G. W. Glisbe for defendants:
    The defendants might determine their liability by giving-notice.
    By the contract the Asylum was not bound to keep the patient a Single day. The officers of the Asylum might have removed him from their premises, and were not bound to return him to his friends. Had they turned him at large no action could be maintained against them for a breach of the contract. The Asylum took especial pains that it should be bound to nothing. The expenditures on its part, for board care and clothing, were voluntary. Its duties continued only at its own pleasure.
    The contract binds defendants in general terms to pay for the care, board, &c., of said insane person, as long as' he shall continue in said Asylum. Out of caution lest some implied obligation might be incurred, the contract goes on to limit the liabilities of the Asylum, and places further obligations upon the defendants by requiring the patient • to be remoyed if his room shall be needed for preferred patients, by providing that payment should be made for six months, whether the patient be kept or not, and making them liable for damages to furniture, and expenses occasioned by elopement or by the death of the patient.
    The parties seem to have considered every possible contingency, and provided therefor. We therefore think the written contract excludes every implication, and that the maxim “expression of one or more things, is the exclusion of all not expressed ” should apply in Lthis case with full effect: — 2 Pars, on Cont. 28.
    The plaintiff places much stress upon the words, “as long as he shall continue in said Asylum,” contained in the contract. The patient might cease to be an inmate of the Asylum’ in various ways. He might die, elope, be sent away by the Asylum, or taken away by his friends. That expression is adapted alike to either event. It must mean, “so long as he shall be continued in the Asylum;” which would necessarily imply, by the consent of the parties to the contract.
    Again: The defendants were guarantors, and the promise of a guarantor is always revocable unless it be for a consideration and contain terms rendering it irrevocable: — 1 Pars, on Oont. 514-5IV.
   Manning J.:'

The Court erred in charging the jury that by the terms of the contract either party might put an end to it by giving notice to the other. By the contract defendants bound themselves to pay five dollars per week for the care and board of the lunatic as long as he should continue in the Asylum, and to remove him therefrom whenever the room occupied by him should be required for a class of patients having preference by law. To put an end to the contract they should have removed the lunatic from the Asylum, or offered to' remove him. No notice short of a removal or offer to remove him would terminate their liability for his care and board.

The judgment is reversed, with costs, and a new trial ordered.

The other Justices concurred.


author: Martin Oh. J.:

text:
    William A. Nelson v. Oliver M. Hyde.
    A petition for the dissolution of an attachment, which does not describe the prop» erfcy, and only states that by virtue of the writ property to the value of more than $3,000 was attached, and is now in possession of the Sheriff,” does not confer jurisdiction upon the Circuit Court Commissioner, and he should dismiss it.

      Heard October 17th,

      Decided October 28th.

    Certiorari to a Circuit Court Commissioner for the county of' Wayne.
    On the tenth day of June 1862, William A, Nelson presented to the Commissioner a petition, duly verified, of which the following is a copy:
    “ Circuit Court for the County of Wayne.— William A. Nelson ads. Oliver M. JByde.

    To Ervin Palmer, Esq., Circuit Court Commissioner, Wayne county, Michigan:
    The petition of William A. Nelson, defendant in the above cause, respectfully shows that the plaintiff, on the second day of June instant, filed his affidavit in said Court, under the statute in such case made and provided, in which affidavit it was stated, among other things, that the defendant, your petitioner, was indebted to him in the sum of $1,850, and that the defendant had removed or was about to remove Ms property out of this State, with intent to defraud Ms creditors; that thereupon there issued in due form the writ of attachment against your petitioner’s property, which writ was served upon your petitioner, and by virtue of said writ his property to the vaMe of more than $3,000 was attached, and is now in possession of the sheriff of said county of Wayne.
    Tour petitioner further shows, that, to the best of his knowledge and belief, he was not, and is not, indebted to the said plaintiff, in the sum stated in the affidavit referred to, or in any sum whatever. That your petitioner is a citizen and householder in the city of Detroit, in said county of Wayne, and had not, and has not, any intention of removing Ms property out of this State, as alleged in the plaintiff’s affidavit.
    Wherefore your petitioner prays that said attachment may be dissolved, and that a citation may be issued to the plaintiff in attachment, according to the statute.
    Wm. A. Nelson.”
    • A citation was issued upon this petition, the parties appeared and produced proofs before the Commissioner, who made an order denying the application to dissolve the attachment, and rendered judgment against Nelson for costs.

      T. Romeyn for plaintiff in error.

      O. P. Crosby, for defendant in error, to show the insufficiency of the petition to confer jurisdiction upon the Commissioner, referred to Chandler v. Nash, 5 Mich. 409, and Osborne v. Robbins, ante, 277.
   Martin Oh. J.:

Under the ruie laid down in Osborne v. Robbins — to which we adhere — the petition in this case is defective in not sufficiently describing the property which had been attached. In other respects we hold the petition to be sufficient. As this question of the sufficiency of the description goes to the jurisdiction, we hold that the application should have been dismissed. An order denying the motion to dissolve the attachment should have been granted for want of jurisdiction; and the subsequent proceedings of the Commissioner are therefore void, as he had no right to hear the case upon .its merits. The proceedings are therefore quashed, with costs to neither party.

IIanntng and Campbell JJ. concurred.

Christiancy J. did not sit in this case.


author: Manning J.:

text:
    Mary E. Gugins v. William Van Gorder.
    Where land has been sold and paid for, and a deed executed and delivered, the subsequent refunding of the consideration to the purchaser, and the destruction of the deed by agreement of the parties to it, will not revest the title to the land in the grantor.
    But the granteo by whose agreement the deed was destroyed, and those claiming under him, are estopped from giving parol evidence of the contents of the destroyed deed when claiming title to the land.

      Heard July 21st.

      Decided October 28th.

    Case made after judgment, from Livingston Circuit.
    The action was ejectment, brought to recover the undivided one-fourth of certain lands, claimed by plaintiff as one of the heirs of Orrilla Gugins. The facts are sufficiently stated in the opinion. The defendant had judgment below.

      S. L. Kilbourne, for plaintiff,
    referred to 1 N. H. 9; 4 N. S. 195; 4 Fost. 148; 10 Mass. 403; 9 Pick. 105; 8 Shep. 160; 1 Greenl. 78; 4 Wis. 1; 4 Cranch, 48; 4 Kent, 196; 1 Hill. on Real Pr. 375; 1 Greenl. Ev. § 265, note.

    A. S. Wheedon and O. Hawkins, for defendant,
    cited and relied upon 1 Johns. Ch. 417; 4 Wend. 482; 4 Wend.
      491; 7 Wend. 304; 8 Cow. 71; 23 Pick. 231; 7 Pet. 171; 8 Black. 320; 4 Yerg. 357; 6 Hill, 469 ; 6 Mass. 24; 2 Pars, on Cont. 231; 4 Conn. 550; 5 Conn. 262; 2 Johns. 84.
   Manning J.:

The ease states the land was taken of the Government by Richard M. Gugins in the name of Orrilla Gugins his wife, and that the patent was issued in her name. That in 1838 or 1839 Gugins and wife sold the land to Harrison P. Goodrich, and executed and delivered to him a deed therefor; that in three or four days thereafter Goodrich delivered hack the deed to them, and received from them the consideration he had paid for the land, and that the deed was then destroyed by agreement of all the parties. The other facts in the case, except the death of Richard and Orrilla, that the plaintiff is one of four children left by them, and that defendant claims title through Goodrich, it is unnecessary to notice, as the only questions in the case are, First, whether the destruction of the deed re-vested the title in Orrilla? and if not, then Secondly, whether under the circumstances stated in the case, Goodrich and those claiming under him are estopped from giving parol evidence of the contents of the destroyed deed?

On the first point, there is no doubt that the destruction of the deed did not re-vest the title in Orrilla. On the execution and delivery of the deed to Goodrich the title vested in him. It was not registered, but registry was not necessary to give it effect. And the destruction of the deed, which is evidence of title, and not the title itself, could only affect the proof of the title in a court of justice. To regain the title in such a case where a conveyance is refused, recourse must be had to a court of equity. The language of the statute, which is essentially the same now that it was when the deed was destroyed, is, No estate or interest in lands, other than leases for a term not exceeding' one year, nor any trust or power over or concerning or in any manner relating thereto, shall hereafter be created, granted, or assigned, surrendered or declared, unless by act or operation of law, or by a deed of conveyance in writing: Comp. L. § 3177; or by last will and testament: § 3178.

Is defendant estopped from introducing parol evidence of title in Goodrich? We think he is, under the circumstances stated in the case. Secondary evidence cannot be received to prove a fact without first laying a foundation for it in accounting for the absence of that which is primary. The deed to Goodrich is the best evidence of title. That is not produced, and its destruction is accounted for in a way that shows it would - be dishonest in him to claim anything under it. It was destroyed in pursuance of an agreement between him and his grantors after the purchase money had been returned to him, with a view of re-vesting the title. It was done with his consent, and for a valuable consideration. The law will not recognize such a state of facts as an excuse for the non-production of the deed. Its language to Goodrich would be, if he was defending, Sir, you are estopped by your own acts from proving the contents of the deed by parol evidence— and the defendant who claims through him has no greater rights than he.

The judgment of the Circuit Court must be reversed, and judgment be entered for the plaintiff for the land described in his declaration, with costs.

Martin Ch. J. and Campbell J. concurred.

Christiancy J. was absent.


text:
    Edwin Nichols v. George W. Lee.
    Where one pays a mortgage as the agent and with the funds of the mortgagor, and instead of having it discharged, causes it to be assigned as security for a debt owing by himself, the assiguoe cannot hold the mortgage as against the mortgagor or his heirs.
    $Jor can any one who takes an assignment from the assignee thereby acquire any better title than the assignee himself .had.
    Whero a mortgage has been assigned, any equities between the assignee and the mortgagor affect the mortgage in the hands of any subsequent assignee.
    A petition by the guardian of a minor to the Probate Court for license to sell lands of his ward, stating that a part only of the land was under improvement and the balance unproductive; that it is necessary a portion of the proceeds of the land should be used to pay certain (lfbts incurred in behalf of the ward, and that in the opinion of the petitioner it w> uld be for the interest of the minor to have the land sold, and the proceeds, after paying the debts, put out at interest, is a sufficient compliance with the statute.

      Heard October 10th.

      Decided October 28th.
    Appeal in Chancery from Livingston Circuit, where decree had been granted dismissing the bill.

      G. V. N. Lothirop for complainant:
    The existence of the jurisdictional facts upon which license was granted by the Probate Court for the sale of lands, cannot be inquired into in this suit. Where the jurisdiction of a court depends upon certain facts, the existence of which must be determined by the Court in the exercise of its jurisdiction, such determination is conclusive in all collateral actions. For the determination of the Court is “an adjudication upon all the facts necessary to give jurisdiction, and whether they existed or not is wholly immaterial if no appeal is taken.” — 1 B. & B. 432: 12 Pick. 572; 3 Pet. 204; 2 How. 340; 14 How. 586; 29 Mo. 141; 32 Penn. 356; 4 Iowa, 361; 1 Md. Ch. 107.
    In this case the petition shows the necessity of paying expenses of the wards, and the advantage to them to have the lands sold and the proceeds invested, at interest or otherwise. There is aü adjudication of the Court that the facts* set out in the petition exist, and all the requisites of a valid sale (Comp. L. § 3116) appear: 17 Mo. 449; 2 Cush. 190; Howard v. Moore, 2 Mich. 231; Coon v. Fry, 6 Mich. 506. But as Lee does not claim title from or through the minors, it was only necessary that it appear that there was a license to sell by a competent court, and a deed duly executed thereunder: — Comp. L. § 4118.
    The testimony clearly shows a payment of the mortgage by Brown. As he was bound to extinguish Stockwell’s interest, when he did so, whatever form he gave it will operate as a payment in favor of the Polly Brown title: — 1 Hill, on Mort. 494 ; 1 Washb. on Real Pr. 565; 3 Cush. 554; 6 Johns. Ch. 395 ; 7 N. H. 100.

      O. Hawkins, for defendant:
    The application of the guardian for leave to sell the lands was not sufficient. It should have disclosed the facts and circumstances, that the Judge of Probate might be able to decide whether there was sufficient ground or not. This is evident from various provisions of the statute: — Comp. L. §§ 3319, 3094, 3095. The petition in this case did not set forth the condition of the estate, or any facts or circumstances tending to show the necessity or expediency of the sale. But it did show that the sale was asked upon grounds that gave the Judge no authority under the statute: — Wal. Ch. 145; Platt v. Stewart, 10 Mich. 261.
    But the record shows that complainant bought these premises at the guardian’s sale subject to this mortgage. He is therefore estopped from alleging that it was paid: Wanzer v. Blanchard 3 Mich. 11.
   Manning J.:

The bill is to restrain the foreclosure of a mortgage at law, and to have the mortgage cancelled and discharged of record.

The mortgage was given by Mrs. Brown to Stockwell, assigned by Stockwell to Dillingham after it fell dne; by Dillingham to Roberts, and by him to the defendant Lee.

The bill states the'mortgage was paid by John Brown, the husband of Mrs. Brown, with means furnished him for that purpose by Mrs. Brown, on his undertaking to pay the mortgage and have it discharged of record. This we think is clearly proved by the testimony in the case. It further states that Brown, on paying Stockwell, instead of having the mortgage discharged procured an assignment of it to Dillingham, to defraud the heirs- — -children by a former husband of Mrs. Brown, who had in the mean time died. The answer states that the mortgage was purchased by BroAvn of Stockwell, and assigned by him at Brown’s request to Dillingham to secure a debt Brown was owing him. Dillingham in his testimony says it was assigned to him at Brown’s request, to secure a debt of between $25 and $30 Brown was owing him, and to secure him for any further indebtedness that might accrue to him if he foreclosed the mortgage. There is no pretence he paid Stockwell anything, or that he furnished Brown with any jaart of what he paid Stockwell. We know of no principle in equity giving him, in such circumstances, rights superior to what he would have had had Stockwell assigned to Brown, and then Brown to him. As against Brown himself, the heirs of Mrs. Brown would have a clear right to have the mortgage cancelled; and what they would be entitled to against him, they would be entitled to against his assignee, or the assignee of such assignee. The assignee of a mortgage takes it subject to all equities existing between the parties to it. Not between the mortgagor and mortgagee only, but between the mortgagor and assignee of the mortgagee who has assigned it to another-When a mortgage is assigned, the assignee, for all beneficial purposes claimed under it by him, becomes a party to the mortgage, and stands in the place of the mortgagee; and any equities between such assignee and tbe mortgagor affect the mortgage in the hands of his assignee.

As to complainant’s interest in the mortgaged premises, and consequently his right to file the bill, it was argued that the guardian’s deed of the three undivided fourths belonging to the minor heirs was void for want of jurisdiction in the Probate Court granting the license to sell, as the petition for the license did not comply with the statute.

The statute provides that, in order to obtain a license to sell, the guardian shall present to the Probate Court of the county in which he was appointed guardian, a petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded, tending to show the necessity, or expediency of a sale. Comp. L. § 3099. The petition describes the land; states that about thirty acres of it were under improvement, and that the balance of it was wild and uncultivated and yielded no income to the minors. That it was necessary a portion of the proceeds of the land should be used to pay certain debts incurred in behalf of the minors, and that in the opinion of the petitioner it would be for their interest to have the land sold, and the proceeds after paying the debts put out at interest.

We think the petition complies with the requirements of the statute.

The decree dismissing the bill must be reversed, and a decree be entered for complainant in accordance with the prayer of the bill, with costs.

The other Justices concurred.


author: Campbell J.:

text:
    Thomas McGraw and others v. Amos Pettibone and others.
    A "bill to have a set off allowed to a decree in equity, canqot be sustained where the demand sought to be sot off would have constituted a defense in the former chancery suit, and where it is not alleged that the facts upon which the set off is claimed were then unknown.
    Nor can it bo sustained unless the party seeking to obtain the benefit of the set off is the real owner and has the control of the counter claim, so that the creditor who sues him is his debtor as to the claim offered in reduction.
    A. obtained a judgment against a plank road company for labor and materials in the construction of its road. He afterwards assigned this judgment to B,, who filed his bill in equity against certain of the stockholders to obtain satisfaction of it, and had decree in his favor. Before this decree, the plank road company obtained judgment against A. for damages resulting from a breach of the contract for building their road. The defendants in the chancery suit then filed their bill against A., B. and the plank road company, and also against C., who was a large stockholder in the company, alleging that O. was the real contractor for building their road, and owner of the judgment rendered in favor of A., and of the decree in favor of B., and praying that there he set off against the decree the judgment in favor of the plank road company, and certain payments which had been made by the company to A. after verdict but before judgment in his favor, and also the proportion which O. as stockholder should contribute towards the satisfaction of the judgment against the company.

      Held, that the judgment in favor of the plank road company could not be set off, because not owned by complainants; and that the hill could not be sustained for a get'off of the other two items, since the payments made would, to that extent, have constituted a defense in the former chancery suit, and if O. instead of B. was the real party in that suit, the amount he, as stockholder, should contribute, might also have been deducted in that suit.

      Heard May 20th and 21st.

      Decided November 11th.

    Appeal in Chancery from Oakland Circuit.
    The facts which may be considered as proved, or admitted, in this cause, are as follows:
    John N. Pettibone brought an action in the Circuit Court for Oakland county, against the Novi and White Lake Plank Road Company, upon a written contract with, said company for the building by John N. of a portion of the road of said company; and in December, 1854, recovered a verdict against the company in that action. This verdict was submitted to the Supreme Court, upon questions reserved, and the decision of the Supreme Court having been rendered, judgment was, on the 29th day of March, 1856, rendered against the company upon the verdict, for $3,350.52 and costs.
    On the 23d of January, 1855, there was paid to John N. Pettibone, to apply upon this verdict, the sum of $310.84; and on the 5th of May, 1855, the farther sum of $9.45. These payments were not credited upon the verdict when judgment was entered thereon, in March, 1856.
    Execution was issued upon the judgment, and returned unsatisfied, and the judgment was then assigned by John N. to Amos Pettibone.
    On the 15th of April, 1856, the plank road company commenced an action in the Circuit Court for Oakland county,' against John N. Pettibone, to recover damages for breach of the above mentioned contract for building the said road, and on the first day of December, 1857, recovered judgment in said action against said John N. for $750 and costs.
    Harmon Pettibone, who is the father of the defendant John N., and the brother of Amos, was, during all this time; the largest stockholder in said company.
    On the 23d day of August, 1856, Amos Pettibone filed a bill in the Circuit Court for the county of Oakland in Chancery, against the present complainants, and one or two others, alleging the recovery by John N. of the judgment above mentioned, the issuing and return of execution thereon, that the defendants in that bill were stockholders in said company, and that the said judgment was, by John N.' Pettibone, on the 24th day of July, 1856, for a valuable consideration, assigned to Amos Pettibone, the complainant. The defendants in that suit appeared, by their solicitors, and demurred to the bill; and the demurrer having been' overruled, and the defendants having failed to answer, the bill was taken as confessed November 11th, 1857, and a final decree entered October 11th, 1858, reciting that the said judgment had been duly assigned to the complainant Amos Pettibone, and holding the defendants liable, as stockholders, for the payment of the said judgment to said Amos Pettibone. Neither Amos nor his attorneys were shown to have had, until after this decree was taken, any knowledge of the two payments made as above mentioned, to John N.
    The defendants in that cause ajjpealed the same to the Supreme Court, and the decree was there affirmed on the 7th day of June, 1859, and the cause remitted to the Circuit Court, where executions were issued upon the decree.
    |.The bill in this cause was then filed, making John N., Amos and Harmon Pettibone, and the plank road company, defendants, alleging that Harmon instead of John N. was the real contractor for building the road, and the real plaintiff in the judgment recovered in the name of John N.; that Harmon and John N. are now both insolvent; that the assignment of the judgment by John N. to Amos was without consideration, and for the purposes of fraud, and to prevent the application of the payments and offsets. And praying that the amount of the payments so made, the amount of the judgment against John N., and also the equitable proportion of the amount of the decree against complainants which the stock held by Harmon should pay, should be allowed and applied on said decree — the plank road company being willing and desirous that the application should be made.
    Amos Pettibone answered — the other defendants suffered the bill to be taken as confessed. On the hearing in the Court below, on pleadings and proofs, decree was made for complainants as prayed, and Amos Pettibone appealed.

      M. L. Drake and M. E. Crofoot for complainants:
    A former decree to be a bar must be between the same parties, and involve the same subject matter. The plank road company, which held receipts for the payments, and had the right to apply them, was not a party to the former suit, and that suit is therefore not a bar : — Story Eq. Pl. 791; 7 Johns. Ch. 1. And the question of fraud in the assignment of the contract by John N. to Amos Pettibone is now put in issue for the first time.
    The insolvency of one of the parties is a ground for filing a bill in [¡equity for a set-off: — 2 Eq. Ca. Abr. 10; 2 Vern. 117; 4 Conn. 302 ; 5 Mason, 202; 2 Paige, 581; 4 Bibb, 856. The power in the Court of Chancery over set-offs rests upon its general jurisdiction over its suitors: — 1 Johns. Ch. 91; 14 Johns. 65. It is based upon the natural equity of set - offs; and relief may be given in a case not within the statute of set offs: — 2 Paige, 581. The jurisdiction is concurrent with that of common law courts, and more extensive: — 4 Paige, 647 ; 1 Paige, 622. In the exercise of this jurisdiction the Court can determine the equitable rights of an assignee in either of the claims sought to be set off: — 2 Edw. Oh. 73. And it will adopt such practice as will enable it to determine fully the equity of the application for set off: — 3 Edw. Ch. 543.
    One object of this bill is to obtain a contribution; an equitable contribution to be ordered by the Court before the matter passes beyond its jurisdiction; and the bill is maintainable for this purpose:' — Comp. L. §§ 2161, 1918; Pettibone v. McGraw, 6 Mich. 441; Story Eq. Juris. §§ 490 to 505.

      Douglass & Andrews for defendant Amos Pettibone:
    1. The former decree is a bar to the relief asked in respect to the payments made on the judgment against the plank road company : — Story Eq. Pl. § 790: Mitf. Eq. Pl. 239; 2 Dan. Ch. Pr. 753, 1724; 1 Barb. Ch. Pr. 139. But even if it were not, complainants have been guilty of such laches as would itself bar the relief sought: — Wade. Oh. 17. Even a bill of review will not be sustained where there has been any negligence in allowing the entry of the decree complained of: — Mitf. Eq. Pl. 84; Story

      Eq. Pl. §§ 414, 419; 2 Johns. Ch. 488; 8 Johns. Ch. 357; Ibid. 121; Hopk. 102.
    2. The judgment against John N. Pettibone cannot be set off. It cannot be if Harmon equitably owns the judgment against the plank road company: — Comp. L. §4180 sub. 7, 10. And the question of the ownership was necessary involved in the former suit in chancery, and lies at the very foundation of the decree in that cause.
    8. The third equity claimed by the bill is, that the judgment in favor of John N. was recovered and held by him in trust for Harmon, and that the amount which Harmon, as a stockholder, is liable to contribute to the payment of the decree obtained by Amos, should be applied directly upon that decree as payment.
    This position is inconsistent with the one previously taken, that the judgment against John N. should offset the decree, and we insist that the complainants must elect between the two. If the judgment against the plank road company, previous to its assignment to Amos, was equitably owned by Harmon, then there can be no reason for setting off against it a judgment against John N.; if the judgment was owned by John N., then a claim against Harmon cannot be set off against it.
    If it were proved that John N. and Amos held the judgment in trust for Harmon, it could not avail the complainants, for at the time of the filing of this bill, neither the plank road company nor the complainants were creditors of Harmon, or in a position to question his assignments, or to’ call his trustees to account.
    And, as before stated, the equitable ownership of the judgment against the plank road company was adjudicated in the former suit, and cannot now be questioned.
    4. Whatever the equities of the complainants, they could have no relief in this suit. They have mistaken their remedy.
    * Relief can only be had against an improper or erroneous decree, by petition for rehearing, or bill of review; except in the single case of a decree which has been obtained by fraud, which may be set aside by an original bill filed for that purpose, and -expressly charging the fraud: — Story Eq. Pl. §§ 404, 643-45 ; 2 Johns. Ch. 205 ; 4 Johns. Ch. 199; 1 Paige, 268; 10 Paige, 243 ; 13 Ves. 564. This is not a bill of review: — Story Eq. Pl. §§ 403, 420. Neither is this a bill to set aside a decree for fraud. It does not pray that the former decree may be set aside. No fraud in taking the decree is proved, or-charged, or suggested: — Story Eq. Pl. § 426.
   Campbell J.:

This is a bill filed to obtain a reduction of a judgment or decree obtained by Amos Pettibone against complainants, as stockholders in the Novi and White Lake Plank Road Company.

* * * As the items which the bill seeks to apply, do not all rest upon the same foundation, they may be considered separately. Are then the complainants entitled to relief by having Harmon Pettibone’s share deducted? This is claimed to be permitted for the reason that Harmon Pettibone is alleged to be the real owner' of the decree. It is not claimed, however, that he has any other interest in it now than when it was rendered. His connection with the controversy is derived, if at all, from the original transactions attending the building of the road. If there is anything in that connection which can authorize the complainants to insist on his contribution in reduction of their own liability under the statute, it formed to that extent a complete defense in the former chancery suit. In that ease, the very object of the suit was to determine their liability to ¡respond as stockholders. Had Harmon Pettibone been the nominal plaintiff in that cause, they could not have been compelled to contribute without an allowance for his proportion. If the real plaintiff, the same rule would apply. The ownership of the claim was a necessary issue, and it was open to them to show the truth concerning it. It is not claimed or shown that Harmon Pettibone’s position was not as well known when that case was begun as it is now. The evidence as well as the allegations in the bill are all based on the original transactions, which were known to the parties in the outset. It would be doing violence to well settled and necessary rules of equity to permit a bill to be filed for relief on grounds of defense which ought to have been relied on in the former controversy. No excuse whatever is shown for the neglect. Complainants upon their own showing have no equity to claim this deduction in this way.

The payments made after verdict ought justly to have been applied before judgment was rendered on the verdict. Upon a summary application to the Court where it was rendered, they would unquestionably have been endorsed on the execution. In Smith v. Weeks, 26 Barb. 463, it was held that an action at law would lie in favor of the 'judgment debtor, to recover back such payments. We have no doubt they would have been admissible in the former chancery suit in reduction of the claim. But whether these complainants could under any circumstances file a bill to have them applied upon a judgment against the company, or against themselves, is a question not free from difficulty. No good reason, however, appears, why this defense was not set up before, as some of the complainants knew of the payments at the time, and all of them would have known the true state of the accounts by the exercise of ordinary diligence in preparing for their defense- in the former action. We do not think they can resort now to a bill in equity for this relief, upon the facts as they appear before us.

The remaining item which is relied upon as a set-off, is the judgment for damages against John N. Pettibone. This judgment was rendered in favor of the plank road company, more than a year after the former chancery suit was commenced. Without considering the fact that the chancery decree is in favor of Amos and not of John, and assuming John to be the owner of it, there is no ground upon which we have been able to base a decree of set-off. It has never been held that the fact that claims and counter-claims arise from the same transaction so attaches them as to make a right of set-off arise between them in all cases. Unless the one operates as a payment of the other, the right of reduction is not attached to the contract, and whether or not therefore a set-off can be allowed depends upon circumstances, and is merely an incident under those circumstances affecting the remedy. See as illustrating this principle, Chapman v. Derby, 2 Vern. 117; Green v. Darling, 5 Mason, 202; Hackett v. Connett, 2 Edw. Ch. 73; Wolcott v. Sullivan, 1 Edw. Ch. 399; Rawson v. Samuel, Cr. & Ph. 161; Ramney v. Beale, 10 Price, 113; Pettat v. Ellis, 9 Ves. 563.

It is a rule to which no case recognizes an exception —so far as we have been able to discover — that the party who seeks to obtain the benefit of a set-off, must be the real owner, and have the control of the counter-claim, so that his creditor who sues him is his debtor as to the claim offered in reduction : — 2 Pars, on Cont. 243. It is plain that the complainants have no claim to the judgment against John N. Pettibone, either at law or in equity. The parties to- that judgment are not the same as. the parties to the decree on which they seek to have it applied. The plank road company might have shown those damages in defense of the original action at law, but they preferred, and probably with reason, to obtain a separate judgment in their own favor. That judgment is corporate property and does not belong to complainants.

Although the case is somewhat barren of proof, we have come to our conclusions with some reluctance. But the rules applicable to the case are, clear, and. based upon principles which cannot be disregarded.

The decree must be reversed, and the, bill dismissed with costs.

Martin Ch. J. and Christiancy J, concurred.

Manning J. did not sit in the case, having been of counsel.


author: Ohristiancy J.: Campbell J.:

text:
    Elizabeth King v. Alfred B. Moore.
    The action of the wife for exempt property taken on execution, cannot he defeated by showing that the property was turned out by the husband to be levied upon.
    The statute exempting from execution a sufficient quantity of hay, grain, feed and roots for properly keeping for six months the animals specified as exempt from execution, dees not exempt any more of those articles than may be necessary for keeping such of the animals mentioned as the debtor has at the time of the levy.
    Whether.the statute exempting “provisions for the comfortable subsistence of a householder aud family for six months” exempts growing crops of com and potatoes recently planted, and which have just becomo visible above ground, quere — the Court being equally divided on the question.
    Where a case is made after judgment for review by the Supreme Court upon the whole facts, it should embody all the evidence given on the trial.

      Submitted October 8th.

      Decided November 13th.
    Case made after judgment from St. Joseph Circuit.
    Elizabeth .King, the wife' of Amos S. King, brought an action of trespass against Moore, before a justice of the peace, for the taking of certain corn and potatoes, and corn fodder, on an execution against said Amos — the said articles being claimed as exempt from execution.
    The cause being removed by appeal to the Circuit Court, it was admitted by the parties on the trial there, that said Amos was the owner of four acres of land in said county, upon which he resided with his family, and that all his personal property did not. exceed two hundred dollars in value. That in May, 1858, he planted about two acres of his land to corn and potatoes, and that on the third day of June, 1858, Moore, as constable, levied upon these crops, which had just vegetated and were visible above ground, and made an endorsement of the levy upon the execution, reciting that they were turned out to him by said Amos. That after this levy the execution was allowed to rest until the corn and potatoes were fit for harvest, when Moore sold them upon the execution. That when the sale was made said Amos had no horse, cow or other animal, except one pig.
    The cause being tried without a jury, the Court 'found that the corn and potatoes were planted by said Amos for the use of his family. That there was not enough for the use of the family for six months, and to feed two cows and fatten two swine. That the family alone would require all the potatoes and twenty-six bushels of corn for food in six months, the value of which was found to be $19.88. The Circuit Court held the whole to be exempt, and rendered judgment against Moore for $84.80 and costs.

      W. Sadler for plaintiff.

      O. Upson for defendant.
   Ohristiancy J.:

Several questions have been raised in this case,. all of which, however, may be resolved in the three following:

■First. Can the action of the wife, under § 8294 of Compiled Laws, for property taken on execution against the husband, and which was exempt, be defeated by showing that the property was turned out by the husband to be levied upon ?

In answer to this question, we think it clear her action cannot thus be defeated. The exemption is intended quite as much for the benefit of the wife and family, as that of the husband. The same reasoning applies here as in the case of a homestead exemption. See Beecher v. Baldy, 7 Mich. 488, and Dye v. Mann [ante, 291]. This action would seem to have been given to the wife to prevent any waiver of the exemption by the husband; as, without such waiver, the action might as well be brought by himself.

Second. Does the ninth subdivision of the 21th section chapter 131 Compiled Laws, exempting from execution “a sufficient quantity of hay, grain, feed and roots for properly keeping for six months” the animals referred to, apply to a case where the debtor has no. such animals? or, in other words, does. it exempt any more “ hay, grain, feed .and roots,” than may be necessary for keeping such of the animals mentioned as the debtor has at the time of-the levy?

In answer to this question, we are all clearly of opinion that this exemption cannot extend beyond what is sufficient to keep such of the animals as the defendant may have at the time of the levy. This exemption is given to render that ' of the animals practically beneficial; as it would be of little use to exempt the animals if the food necessary for their sustenance were liable to be taken from the owner. But if the debtor have none of the animals specified, the reason for exempting the food for them wholly fails. If he has none of the animals which the statute exempts, there is nothing upon which this exemption of the animals can operate, and the exemption of food for such animals, which is dependent upon it, fails with it. If the statute, in cases where the debtor has not the full amount of the property exempted by this section, had provided an exemption of money or other property for the purpose of enabling him to purchase enough to make up the deficiency, there might be good reason for holding the feed for the animals exempted, though he had not the animals at the time of the levy; but the statute has adopted no such principle.

Third. Does the sixth subdivision of the same section, exempting “provisions for the comfortable subsistence of a house holder and family for six months,” exempt growing crops of corn and potatoes, recently planted, and which have just become visible above the ground?

In answering this question, it is important to determine whether the exemption is to be governed by the state of facts existing at the time of the levy, or at the time of sale, or at some intermediate period. It is quite clear, I think, that whatever under this statute may be levied upon may also be sold, except so' far as the statute has otherwise provided. Where' specific articles are exempt by the statute, they can neither be taken nor sold on the execution. But where the exemption is of property of a certain class or species, and only to a certain amount or value, and the debtor has property of that class or species exceeding the amount, some mode must be adopted for determining the particular portion or articles to which the exemption shall apply. It is accordingly provided that when a levy in such case shall be made, “ the officer levying such execution may make an inventory of the whole of such property, and cause the same to be appraised at its cash value by two disinterested freeholders of the township where such property' may be,’’ c%c.: § 28 same chapter. “Upon such inventory and appraisal being completed, the defendant in execution or his authorized agent may select from such inventory an amount of such property not exceeding, according to such appraisal, the amount or value exempted by law from execution: but if neither such defendant nor his agent shall appear and make such selection, the officer shall make the same for him”: §29 same chapter. These sections wrould certainly apply to the exemption of provisions, when the defendant has more than the amount exempted.

Again, by section thirty - one it is provided, “ whenever the defendant in an execution shall have cows, sheep, swine or other animals or articles, some of which are exempt bylaw from sale on execution, and some of which are not so exempt, the officer may take all such horses, cows, sheep, swine or other animals or articles into his possession, and the defendant or his authorized agent may, immediately on being notified of the levy, select so many thereof as are exempt by law from, execution, but if the defendant be absent, or neglect to make such selection, on being notified, the officer shall make the same for him.”

In all eases not otherwise provided for in sections twenty-eight, twenty-nine or thirty-one, above cited, the right to levy implies also the right to sell; and the one is co-extensive with the other, so far as the question of exemption is involved: and in all such cases, at least, the right to levy and the right of exemption would seem to take effect at the same time. . Is it otherwise in the cases provided for in the three sections just referred to ? I think not. It is evident, I think, from the language of these sections that the selection is to be made at, or immediately after, the levy, and with reference to the then existing facts. Under the twenty-eighth section, “ when a levy shall be made,” the officer is to make the inventory — “uponsuch inventory being completed” the defendant is to select. If he does not appear and make the selection, the officer is to make the selection for him. How long must the officer wait for the defendant to appear and select ? Clearly, I think, he need not wait one day. When is the defendant to select under the thirty-first section ? The statute answers “immediately on being notified of the levy.” But if the officer may delay to make the- inventory, and to have the selection completed, he certainly is not bound to wait, but has a right to proceed at once; and that would.be a novel species of statute exemption which might be allowed or defeated at the option of the officer.

The right and the extent of the exemption, in these cases must, then, depend upon the state of ,the property-and the state of facts existing at the time of the levy, or at the latest, the time within which the selection is to be made; ancl just as clearly must this be the case when the right to sell is co-extensive with the right to levy.

As the statute, in exempting provisions “ for the comfortable subsistence of the householder and family for six months,” does not specify any particular kind of provisions, doubtless anything which is susceptible of use as provisions, may be exempt under this designation; and any growing crops which, at the time of the levy, had reached that stage of growth or maturity which wquld render them susceptible of such use, might fall within the exemption: — Carpenter v. Herrington, 25 Wencl. 3/0. But corn and potatoes so recently planted as to be but just visible above the ground, are wholly incapable of use qs.^food, and in that state ^ can with no propriety be called “provisions.” They may or may not, in the ordinary course of vegetation, assume a shape, or produce fruit, fit for food, before the time for sale on the execution (which by the twenty-sixth section is not to be until they are ripe or fit to be harvested), and it seems to have been thought by the Court below that for this reason they ought to be exempt while growing, when the owner has not otherwise the requisite amount of provisions. This would doubtless have been a reasonable provision, had the Legislature seen fit so to provide. But we are not fo decide what we think the Legislature ought to have done, but what they have done. At common law all such property was liable to execution, and nothing was exempt as 'food for the support of a family. The exemption of provisions, like most other exemptions, rests entirely upon the statutes. Had the Legislature seen fit only to establish certain principles upon which exemptions were to be made, we might exempt anything coming within the principle thus established; but they have chosen to make their exemptions specific, to define the classes of property to he exempt, the circumstances under which they are to be allowed, as ivell as the time when the right of exemption shall attach. The statute exempts nothing as growing crops, or by that designation; and such crops, to be exempt as provisions, must be capable of being used as such when the exemption takes effect.

This case is therefore no more within the equity of the statute than many others which might be put, but which are clearly beyond its provisions. Thus, a debtor at the time of the levy has- six months provisions in the house, which are exempt and not taken on the execution, but the levy is made upon other property of the same description A few days after the levy,, the provisions in the house are destroyed, lost or stolen. It will hardly be contended that the debtor can call upon the officer for enough of the provisions levied upon to make up the deficiency; yet such a case would come quite as clearly within the benevolent purposes of the statute as the present. I have been unable to find anything in the statute to warrant the inference that an exemption was intended to be allowed, based upon any change which might take place in the state of facts, or of the property, or of the debtor’s circumstances at any time between the levy and the sale.

The judgment should, I think, be reversed, with costs, and a new trial granted.

It seems to have been the intention in framing this case to submit it to this Court for review upon the evidence as well as the law. But the case is not so framed as to permit us to do this. The whole evidence does not purport to be given: but only. so much as “ was deemed material to the questions to be raised.” When we review a case upon the evidence, we must have the means of judging for ourselves what is and what is not material.

Manning J. concurred.

Campbell J.:

I concur in holding that nothing is exempt for keeping animals, where the party claiming the exemption does not own or possess such animals. The judgment below is erroneous, so far as it allows any exemption for animals not owned or possessed.

I think, however, that growing crops of" grain, or vegetables, suitable for family consumption, are within the exemption of the statute. If, at the time of the levy, a defendant in execution has enough provisions on hand for six months, then of course there is no right to any more. And a levy made on growing crops would then be as valid as a levy on any surplus provisions on hand. And such levy would not, if valid when made, be affected by any subsequent destruction, sale, or other disposition of the exempted property. But where a family does not possess a supply for six months, then I think they have a right to look to their growing crops for enough to make up the deficiency. Such crops are designed for human sustenance, and are frequently the chief reliance of their owners. There is no more difficulty in making the selection, in this class of cases, than in making the sale. If the law permitted a growing crop to be sold before maturity, there might be more difficulty in making it. But no sale can be made until the crops are ready for gathering; and it is perfectly easy to make at that time all necessary deductions.

It is undoubtedly true that an officer cannot at once make an inventory or appraisal, so as to allow the exempted amount to be set apart from the rest. But the law does not require this to be done at once, in regard to any property; and it may be done at any time before it is noticed for sale, if not at any time before actual sale. And a levy upon growing crops is kept alive, by statute, upon all executions, until thirty days after the crops mature: — Comp. L. §4464. The statute authorizing the commencement of suits by attachment requires an inventory and appraisal in all cases. But it has never been supposed growing crops could not be attached.

These exemptions have never been construed technically against the right claimed; and the literal provisions of the statute have been interpreted by their obvious design. Thus, where, under a law from which ours is copied, “ all sheep to the number of ten, with their fleeces, and the yarn or cloth manufactured from the same;” are exempt, cloth made from wool owned by a person who never had any sheep, was held exempt: — Hall v. Penney, 11 Wend. 44. The same doctrine was re-affirmed in Brackett v. Watkins, 21 Wend. 68. In the case of Carpenter v. Herrington, 25 Wend. 370, an exemption was allowed where potatoes planted on shares on another man’s ground, by a defendant in execution, were sold before they were dug. It does not appear whether they were levied upon before maturity or not; but the language of the Court does not go upon any idea that this was material. Nelson Ch. J. in deciding the case says: “As the necessary vegetables are absolutely exempt, they will be protected in any stage of the process of obtaining them for the family use; whether by planting them Or in any other way.”

If growing crops are not exempt, the entire policy of the law must 'fail in regard to a large class of cases which are evidently designed to be, protected. It seems to me that such a construction as covers them is both natural and just; and in no way violates either the letter or spirit of the law.

I think that judgment ■ should. be rendered upon the finding for all the provisions found necessary for the family, and such animals as they are shown to possess. This appears from the finding to be $19.88. Judgment should be reversed, except as to the sum of $19.88, with costs of this Court in favor of defendant, and affirmed to that amount.

Martin Ch. J. concurred.

The Court being thus divided on one point, the judgment was reversed, with costs of this Court, except as to $19.88, and affirmed as to that amount.


text:
    John S. Nevius v. The Bank of Lansingburgh.
    The guaranty of a promissory note, naming no one as the promissee, becomes .fixed -whenever any one takes it upon the guarantor’s credit.
    And where one sues upon such a guaranty, the presumption that he is the promissee, arising from possession of the instrument, will prevail in his favor, at least until rebutted by showing that the guaranty had previously been operative in other hands.
    A witness called to prove the dishonor of a note, who only testifies that he went to find the maker’s last place of residence, and that the note was not paid, and he then protested it, but does not testify concerning his knowledge of the residence, nor whether, if no personal demand was made, there was any valid reason for the omission, does not sufficiently show the dishonor.
    Notice of the dishonor of commercial paper, deposited for. delivery in the post office where the person to whom it is directed receives his letters, is sufficient unless such person resides within the place; in which case the service must be persona], or left at the place of abode or business.
    It is the duty of post masters to deliver letters deposited for delivery at the same office.
    Where notice of dishonor is deposited in the post office where the endorser resides, proof that he received it the second day after the dishonor, is not sufficient to charge him.

      Heard November 1st.

      Decided November 13th.

    Error to Kent Circuit. The facts are fully stated in the opinion.

      ■J. W. Champlin and J. P. Whittemore, for plaintiff in error:
    Where suit is brought upon a guaranty which names no promissee, it is necessary for plaintiff to aver and prove that the contract of guaranty was made with him: —1 Greenl. Mo. § 60. Such contracts are not negotiable: —1 Pars, on Cont. 493; 3 Mich. 188.
    There was no sufficient proof of. the dishonor of the other note: — Edw. on Bills, 485, 488-9; 3 McCord, 394.
    Depositing notice in the post office was not sufficient service upon Nevius: — Newberry v. Trowbridge, 4 Mich. 395, and cases cited. Nor is proof that it came to his hands sufficient, unless it appears' that he received it the day succeeding the dishonor: — Edw. on Bills, 615; Ibid. 602-3; 2 Campb. 208; 3 C. & P. 250; 1 Stark. 314; Story on Bills, § 289; 2 Greenl. Ev. § 288; 5 Met. 215, 352.

      C. I. Walker, for defendant in error:
    The guaranty must be presumed to have been made to the plaintiff, who holds it. And as the Court found that a proper demand was made at the maker’s last place of residence, no question of law arises on that point.
    The notice of dishonor was sufficient.
    The weight of American authority is doubtless in favor of the proposition, that, where the holder resides in the same place with the indorser, evidence that the note was deposited in the post office would not be sufficient to charge the indorser. The reason given, seems to be, that letters are sent to the post office for transmission by mail, and not for deposit, and delivery: — 2 Hill, 588. Now this reason is not a true one, for a very important part of the duties of post offices, especially in large places, is the delivery of “ drop ” letters, and the law has provided for the postage on such letters. The presumption, too, in favor of the reception of drop letters, is just as great as in the case of letters transmitted by mail.
    The rule “ has lost its reasonable force, and exists only by authority,” and is so encumbered by exceptions, that it ought not to be retained: — 1 Am. Lead, Cas. 403.
    But this case is not within the rule. 1st. It does not appear who held the note at the time it fell due. 2d. The note was payable and demanded, not in Grand Rapids, but at Gaines. 3d. Nevius did not reside in Grand Rapids, but two miles therefrom. If the party, to whom the notice is sent, lives out of town, but comes to the post office of that town for his letters, a notice deposited in the post office, directed to him, is good: — 1 Pet. 578; 2 Rich. 338; 2 Pet. 542; 1 Met. (Ky.) 652; 8 W. & S. 14; 5 Blackf. 447; 7 Ibid. 457, 460; Ibid. 610; 3 Kelly, 486; 4 Ala. 148, 158; 1 Har. & J. 428; 3 Ohio, 307, 320; 28 Mo. 331.
    There are various other cases in which a notice is good to charge an indorser, although deposited in the post office where he resides and where it is addressed:— 5 Md. 213; 3 Conn. 489, 486; 8 Fost. 313; 15 Md. 293.
    But we submit, that even if the rule laid down in Newberry v. Trowbridge is to be adhered to, and this case is held to come within it (which we deny), the finding of the Court that the indorser received the notice of protest two days after the protest, is sufficient to charge him: — 8 Fost. 313; 3 McLean, 96; 5 Ala. 376; 15 Md. 291. This was received within a reasonable time as found by the Court.
   Campbell J.:

In this case plaintiff in error was sued below on a guaranty of a negotiable note which had been endorsed to him, and also as endorser of another note; and judgment was rendered against him on both.

The guaranty was upon a note which was endorsed by the payee to him without recourse, and was in these words: “For value received I hereby guaranty the payment of the balance due on the within note. J. S. Nevius.’’ It was objected that this was not shown to be a contract made with the plaintiff below, but the objection was overruled. We think there was no error in the decision. This promise is general in its form, and is like that in Thomas v. Dodge, 8 Mich. 51, except that the guaranty there was of collection and not of payment. We there held the want of a person named in the contract of guaranty as promissee was no objection to the validity of the contract. The contract in the present case becomes fixed whenever any one takes it upon the guarantor’s credit; and without determining between the conflicting decisions in our reports upon the negotiability of such paper, we are satisfied that a presumption arises from possession, which will prevail in favor of the holder, at least until rebutted by showing that it had previously been operative in other hands.

The plaintiff in error was held liable as endorser of another note; and the questions presented on that note arise out of an alleged want of proof that the proper steps had been taken to charge him as such. The person who had charge of the note, which was made by one Jacob Clark, testified upon this point as follows: “At the time it became due I went down to the township of Gaines, to find Jacob Clark’s last place of residence; the note was not paid; after which I protested it.” There is no further proof concerning demand or refusal to pay, but the witness testifies that on the next day he deposited a proper notice of dishonor in the post office at Grand Rapids, directed to Nevius at Grand Rapids, and that subsequently Nevius admitted that he received the notice two days thereafter. It was in evidence that Grand Rapids was his nearest post office, and that he lived two miles from the post office; but it- did not aijpear whether his residence was within or without the city. Nevius asked the Court to exclude the note because there was no sufficient proof of dishonor and notice; but the Court held the proof sufficient.

We think there was no legal proof of the dishonor of the note. Tryon, the witness, does not state whether he found Clark or not; or whether he made any demand. He does not testify concerning Clark’s residence or his knowledge of it, nor whether, if no personal demand was made, there was any valid reason for the omission. The case is also defective upon service of notice. It does not appear that Nevius did not reside in Grand Rapids, and if he did he was entitled to personal service or service at his residence or place of business. Had the proof shown that he resided out of the city we think the service would have been regular. The sufficiency of service upon facts shown is a question of law; and any rule which leaves it indefinite must always leave parties in doubt concerning their legal rights and liabilities. It is doubtless as easy to serve a notice personally a little beyond a city line as within it; but if any extension is made requiring service beyond, the law must determine how far beyond such service is required, and for this we have no rule furnished. 'Any rule adopted must be in some respects an arbitrary one, and we think the established one is the safest. We are aware that in Newberry v. Trowbridge, 4 Mich. 391, upon a supposition that the post office laws imposed no duty to deliver any letters except those transmitted by mail, it was held service could not be made by depositing a letter in the office which was not to be sent to another office. This being a question of United States law, we think the decision in the case of the Bank of Columbia v. Laurence, 1 Pet. 578, sufficiently declared that such a use of the post office is lawful. Provision was made for postage on drop letters as early as 1825 (Act of 8d March, 1825, § 36), and now postage is required to be prepaid. There can be no doubt of the duty of postmasters to deliver such letters. And as regards the question of convenience, such a method is entirely reasonable. A person is more likely to receive a drop-letter than one transmitted to him from a distance, because he .escapes the risks of the road.

It was claimed in this case that, inasmuch as the notice was actually received, all further proof was unnecessary. But the proof did not show it to have been received the day after the dishonor of the note; and the case must stand upon the sufficiency of the delivery through' the post office.

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

The other Justices concurred.