source: Caselaw Access Project

author: Manning J.:

license: Public Domain

text:
    The People on the relation of John J. Speed v. Thomas H. Hartwell.

      Quo warranto: office terminated since information filed, — An information to try the right to a public office will not be dismissed on the ground that the office has expired since information filed. To oust the incumbent is not the sole object of the proceeding, but, under the statute, if he is found guilty of the intrusion, [a fine may he imposed, and costs recovered; and if the relator claims the office, and is found entitled to it, he may recover damages.

      Election required by law to be held; neglect to give notice. —Where a city charter requires a vacancy in a city office to be filled at the next annual election, and directs the city clerk to give notice of the election, and of the offices to be filled, and the notice actually given by him makes no mention of the vacancy, this default of the clerk does not invalidate the election for this vacancy.

      Statute, construction of: when directory. — The statute requiring this notice to be given is directory merely.

      Notice of proceedings of city council. — Electors of a city are presumed to have notice of the proceedings of the common counoil, which are published in the official paper of the corporation. They are therefore presumed to have notice of a vacancy which has been declared by the common council.
    Plea, conclusion of. — Information charging respondent with intruding into a public office; averring that an election to fill the office was held, that relator received a certain number of votes, and respondent a certain less number, and that relator was thereby elected. A plea to this information, that no election was held for the office, and that no votes were cast for that purpose, should conclude to the country, and not with a verification.

      Heard April 16th and 20th.

      Decided July 15th.

    Information in the nature of a quo warranto.
    The information set forth that, in November, 1861, Thomas McEntee was duly elected city attorney of Detroit, and qualified as such, and entered upon the performance of his duties: that he removed from Detroit and thereby vacated the office on the first day of September, 1863, and by a resolution of the common council, duly approved and published in the official paper of the city, the office was declared vacant: that a general election was held in said city on the third day of November, 1863, at which a large number of votes, to wit: 2800 in number, were cast for the said John J. Speed for the office of “city attorney, to fill vacancy,” that being the highest number cast for said office for any person; that a less number of ballots, to wit, fifty or less in number, were cast for the said Thomas H. Hartwell for said office of “city attorney, to fill vacancy,” and that a large number of ballots, to wit, 2800, were cast for said Speed for the office of “ city attorney, for the long term,’’ and also a large number of ballots, to wit, 3000, for said Hartwell, for the office of “ city attorney ” (but did not designate whether for the vacancy or long term), and a small number of ballots, to wit, fifty, were cast for said Hartwell for the office of “city attorney, for the long term;” that on the canvass of said votes the city canvassers declared, as the result of said election, that said Speed was elected city attorney to fill vacancy, and said Hartwell for tbe long • term: that tbe city clerk notified said Speed oí bis said election,, and of tbe amount of bis official bond, and that be gave bond accordingly, took tbe. 'oatb of office, and entered upon tbe discharge of bis duties. ■ It then charges that said Hartwell intruded into and usurped said office, and unlawfully bolds and exercises tbe same, to tbe damage of tbe said Speed of $100.
    Tbe subsequent pleadings were as^ollows:

      First plea. And now, on this fifth day of January, 1864, comes tbe said Thomas H. Hartwell, in bis own proper person, and having beard tbe said information read, for a plea in that behalf, with reference tO' so much, and such part thereof, as charges this defendant with having entered into, used, exercised, claimed and usurped the' said office of city attorney, without any legal election, appointment, warrant, or authority therefor, this (defendant says' that heretofore, to wit, on tbe first day of September, 1863, tbe said office qf city attorney became and was vacant for tbe balance of tbe unexpired term thereof, to Wit, down to tbe 12th day of January, 1864, when tbe next regular term would commence under and by virtue of tbe city charter of Detroit; that thereupon, on tbe first day of September, 1863, tbe common council of Detroit, being then in session, by a resolution, duly passed, entered and approved, according to law, appointed this defendant to bold said office during tbe remainder of said unexpired term thereof; and thereupon this defendant qualified, according to law>, by taking tbe oatb prescribed by law to be taken by tbe incumbent of said office, according to law, and fully entered -into said office,^nd upon tbe discharge of its duties*; that at tbe next general election in said city, held on tbe third day of November, 1863, there was no election to fill said office for said unexpired term, nor was there any notice given of said vacancy, or any election to fill it, nor has there been. any election, at any other time, to fill the same; that this defendant has been in no way removed from said office, but, on the contrary, on the lTfch day of November, 1868, the said common council, being then in session, adopted or passed a resolution or motion, in due form of law, upon the report and recommendation of the judiciary committee of said council, that this defendant was the legal incumbent of said office, duly authorized to hold the same, and discharge its duties, until the 12th day of January, 1864, when his successor in said office, for the next regular two years term thereof, will duly qualify, according to section thirteen of chapter two, of the charter of said city; that this defendant claims to hold said office, and does hold it, with all its privileges, by virtue of such appointment, and the authority thereof, as it was lawful and proper for him to do; and this defendant will continue to claim said office until his successor shall qualify, as aforesaid; without this, that he in any way usurped said office, or entered into, used or exercised the same without warrant or authority of law; and this the said defendant is ready to verify.

      First replication to first plea. And now, the said People of the State of Michigan, by Albert Williams, Attorney General of said State, who for the said People in this behalf appears, as to so much of the said plea of the said Thomas H. Hartwell, by him first above pleaded, as alleges that there was no election held to fill the vacancy in said office of attorney of said city of Detroit, say, that the said People ought not to be barred from prosecuting or maintaining said information against him, because they say that there was an election to fill said office of attorney of said city of Detroit, for said unexpired term, to wit, at the annual election of said city of Detroit, on the third day of November, 1868; and this the said People pray may be inquired of by the country.
    On this replication the defendant joined issue.

      Second replication to first plea. And the said People of the State of Michigan, for farther replication in this behalf, as to so much of the said plea of the said Thomas H. Hartwell, by him first above pleaded, as alleges that there was no notice given of ¡an' election to fill the said office of attorney for said unexpired term, say that the said People ought not to be barred from prosecuting or ¡maintaining said information against him, because they say, although true it is no notice was given of any election to fill said office of attorney ■ for the said unexpired term, yet the said People say that the clerk of said city of Detroit, to wit, on the 8th day of October, 1868, did cause to be published in two daily newspapers published in said city, to wit, The Detroit Fee Press, and the Detroit Daily Advertiser and Tribune, a notice, of which the following is a copy:
    [Here-' follows a notice of the general election under the- charter, specifying the several offices to be filled for the full term.]
    And this the said People are ready to verify. Wherefore they pray judgment, etc.

      Demurrer. The defendant demurred to said second replication, and alleged as causes of demurrer: First, That said second replication had not a proper conclusion.Second, The notice therein set forth was not in fact or law a notice to fill said office of city attorney for said unexpired term. Third, Said replication, on its face, admits that there was no notice of an election to fill said office for said unexpired term. Fourth, Said second replication is, in other respects, uncertain, informal, and insufficient.

      Second plea. And for a farther plea in this behalf, with reference to so much and such part of said information as sets forth a pretended right in the relator, John J. Speed, to hold said office, this defendant says that no public notice whatever was given’ of any vacancy in said office of city attorney; that the electors of said city had no notice of the same; that no notice was given of an election to fill said vacancy, to be held on said November 3d, 1863, or at any other time; that the electors of said city knew of no such election, and did not vote .to fill any such vacancy, on said day, or any other day, and no votes or ballots were cast for said office to' fill any such vacancy, on said day, or on any other day, and said Speed has received no legal certificate of any such election from any board of canvassers, or any other competent authority; and any steps he may have taken to qualify for said office, or to enter upon its duties, are nuE and void; without this, that there was a notice of said vacancy and election, or that there was an election to fill it, and that votes were cast to fill it, or that said Speed was elected to fill it, or is in any way in law entitled to said office; and of this the said defendant puts himself upon the country.

      Demurrer'. The People demurred to this second plea, and alleged the following causes of demurrer: First, That the said Thomas EL Hartwell hath, in and by his said second plea, offered to put in issue matter not properly issuable; and, Secondly, That the said second plea ought to have concluded with a verification, and not to the country; and that the said plea is in various other respects informal and insufficient.

      Third plea. And for a further plea in this behalf, with reference to so much and such part of said information as sets forth an election held, and votes cast to fill the office of city attorney, for the term of two years, commencing, according to the city charter, on the second Tuesday of January, that is to say, the 12th day of January, 1864, this defendant says that there was a general election held on the third day of November, 1863, in said city, to fill the office of city attorney of said city, together with the other offices generally thereof, for the term of two years, commencing on the second Tuesday of January, 1864; that due notice was given, according to law, of such general election; that at such general election, a large number, to wit, seven thousand votes, were cast by the electors of said city to fill said office of city attorney, for said two years term, denominated the “long term” in said information; that of said votes thus cast for said office of city attorney, this 'defendant received á large majority, to wit, five thousand of all the votes cast; that he was consequently duly elected to fill said office for said term of two years, and. he received his certificate of election thereto from the proper board of canvassers, and will be ready to qualify to enter upon the duties of. said office, for said term,.on the second Tuesday of January next, according to the city charter; without this, that he has in any way intruded into said office for said term, or that said John J. Speed was elected to the same; and this the said defendant is ready to verify. Wherefore this defendant prays judgment, etc.

      Demurrer. The People demurred to said third plea, and alleged as causes of demurrer, that the! said Thomas H. Hartwell hath, in and by his said third plea, offered to put in issue matter not properly issuable and immaterial ; and that said third plea is in other respects informal and insufficient.

      J. J. Speed, in person, and 6. FT If. Dothrop, for the relator:
    1. The real issue made by the demurrer to the second replication to the first plea, is, whether it was necessary that a separate and distinct notice, under all the facts disclosed by the pleadings, should have been published to make the election valid.
    It is submitted that the charter imperatively required the vacancy to be filled at the' annual election in November, and of this the electors were bound to take notice, as they are conclusively presumed to have known the law.
    • By the publication of the resolution of the common council declaring the vacancy, the electors were duly informed that a vacancy had occurred. But even without this, it is submitted that there would be little danger in holding that the electors are presumed to know when vacancies occur, and what officers are required to be 'elected. With the multitude of office seekers and politicians in this country, and an active and enterprising political newspaper press, it would be strange if the electors were allowed to remain ignorant that any office subject to their disposal was vacant, especially an office like that in question.
    By the general election notice given by the city clerk, the electors were informed of the places where the votes might be cast.
    All the defendant ■ could claim it was requisite that a notice of an election to fill the vacancy should contain, would be, first,'a statement of the existence of the vacancy; second, that the law required the vacancy to be filled; third, notice of the time of the election; fourth, notice of the place of the election. •
    We claim that the electors had this notice.
    They were informed of the vacancy by the publication of the resolution of the council — the publication' being, required by law — and when any matter of public interest is required to be published officially. in the public press, we think it may be safely held that the public are bound by the notice thereby given.
    Moreover, the electors may be presumed to have known the existence of the vacancy.
    It will be conclusively presumed, that the electors knew that the law required the vacancy to be filled.
    The charter fixes the time of the election, to wit: “the next annual election.’’

      The places for casting the votes at the “annual election,” are mentioned in the notice issued by the city clerk.
    The relator was declared duly elected to fill the vacancy by the board of city canvassers, and was, therefore, prima facie, entitled to the office.
    The following cases are respectfully referred to: — 3 Cal. 477; 5 Cal 343; 3 Kern. 350; 6 Hill, 646 ; 11 Wend. 611; 10 Ind. 68; 15 Ind. 327; 14 Barb. 290-292.
    2. The second plea alleges, among other things, “ that no notice was given of an election to fill said vacancy, to be held on said November 3d, 1863, or at any other time.’’ And the plea concludes; “ and of this the said defendant puts himself upon the country.’’
    Demurrer to this plea was filed, and, as cause for demurrer, it was alleged that the defendant, in his plea, offered to put in issue matter not properly issuable, and that the plea ought to have concluded with a verification, and not to the country. *
    The allegation in the plea was one of new matter. In such case the pleading must conclude with a verification: — 1 Chit. Pl. 557; 1 Johns. 91.
    Concluding to the country obliged the People either to join issue or demur: — 1 Chit. Pl. 599; 2 M. & S. 549.
    3. The allegations of the third plea are confined wholly “to so much and such part of said information as sets forth an election held and votes cast to fill the office of city attorney for the term of two years, commencing, according to the city charter, on the second Tuesday of January, 1864.”
    It is only necessary to say that the information was filed November 30th, 1863. The information does not allege an election for the said term of two years; but in stating the votes cast, it was- stated that a certain number of votes were cast for the defendant for the “ long term;’’ also, in stating, the result as declared by the canvassers, it was mentioned that the defendant was declared elected for said “long term.’’
    4. The statute gives the right to file the information without qualification; and, although the term of office has expired, the relator is entitled to a determination of his right to the office when the information was filed.
    The relator, if the determination be in his favor, may file a suggestion that he has sustained damages: — § 5297, Comp. L. The information alleges that damages had been sustained by the relator. A determination of the right of the party is preliminary to the recovery ■ of damages.
    If the defendant be adjudged guilty, a fine may be imposed; § 5311, Comp. L. The relator is entitled to recover costs if the defendant is guilty of the usurpation alleged; § 5312, Comp. L.

    See following cases: — 1 Wm. Bl. 93; 2 M. & S. 75; 2 Strange, 952 ; Ibid. 583; 8 Wend. 396.

      B. Bishop, for respondent:
    The office having expired, the proceeding should be dismissed.
    The Court can not now enter the appropriate judgment in such a proceeding, which is ouster from the office, or that the defendant is entitled to remain in it: — 3 Bl. Com. 263; 4 Ibid. 312; 2 Comp. L. § 5311; 5 R. I. 1-7.
    The judgment, if one is rendered, must be of -the present tense when rendered. See form of judgment in 11 Mass. 339.
    How can the Court oust the defendant from, or adjudge him entitled to, that which no longer exists?
    Judgment of ouster will not' be entered, where the respondent has ceased to exercise the duties of the office in question: —12 Ohio St. 130, 136. See also, Wright, 231, 237; 17 Ohio, 143; 2 Johns. 184; 3 Mass. 285; 19 Geo. 559.
    It is true the court in England, as in this State, under the -statute, may impose a fine, as an incident to the principal judgment. But where there is no pretence of improper motives, on the part of the defendant,vas is the case at bar, the fine is only nominal: —5 R. I. 1, 11.
    And, even in such cases, in England, the'writ or infor-mation will be denied, if the term of office has expired. Note to 4 Q. B. 648.
    The statute has made this a remedial process in favor of the person, other than the defendant, who may be found entitled to the office in question. But how shall the Court adjudge Mr. Speed entitled to an office that no longer exists ?
    As incidental to the principal object of the suit, the relator, if adjudged entitled to the office, might have his damages assessed: and costs may also be given.
    But the Court, in prosecutions • of this kind, will not entertain, or retain, the case, upon these secondary and incidental grounds, where the principal ground fails: — 4 East, 327, 336.
    ; As to the demurrer to the second plea of the respon. dent.
    1. The second plea is a simple negation of facts which are averred or necessarily implied in the information, and there is no one fact thtfs denied, which is immaterial, upon which an immaterial issue could be formed. The first cause of demurrer, as assigned, is therefore bad.
    2. As to the second assigned cause of demurrer: a plea or other pleading, which is a mere negation or contradiction of the pleading to which it is an answer, must conclude as this does, to the country: — Steph. Pl. 230, 433.
    As to the demurrer to the third plea of the defendant.
    There is in the information enough to justify the conclusion that the relator intended, if possible, to weave into it enough to give himself the office of city attorney, not for the term of the vacancy only, but for the regular term of two years.

      It was against this singular feature of the information that the third plea of the defendant was aimed.
    As to the demurrer of the defendant to the second replication of the People, to the first plea' of the defendant.
    1. The replication should $ave concluded to the country. The respondent, in the first place, had averred that there was no notice of any election to fill the vacancy at the general election. This the replication denies, by setting forth what is claimed in legal^ effect as such notice. There is, therefore, the direct negative and affirmative averment, on the same point. In such cases the conclusion must be to the country: — Steph. Pl. 230, 433.
    2. This replication is otherwise clearly informal, contradictory and bad. . It expressly admits that there was no notice of an election to fill the vacancy in question, and then sets out’ a notice of an election of city officers, that of attorney included, “whose term of office'will commence on the second Tuesday of January, 1864.” This is a strange notice for what it is claimed to be; that is to say, a notice is claimed, to fill a vacancy which was to terminate on that same second Tuesday of January, 1864.
    We think we might safely rest our case here. But as we are formally called upon to show 'by what authority we filled the vacancy in question down to the second Tuesday in January, 1864, we will proceed to show that authority.
    The record shows that no notice whatever^of an election to fill this vacancy was given.
    There was no intention on the part of the electors of Detroit to fill the vacancy; and “if the intention of the voters can be ascertained with reasonable certainty,’’ that intent must prevail: — People v. Bates, 11 Mich. 364, 366, 368; People v. Cook, 4 Seld. 67, 81; 17 Ill. 167; 34 Barb. 620; 22 N. Y. 309. „ -
    It is proper to “look at the number and character of the ballots cast,” in order to determine a question of election, and by them we may be “forced to the conclusion that there has been a failure to hold an election” for a. given office, and that such “ office therefore remains vacant ”r — People v. Canvassers of Kent Co., 11 Mich. 112, 113.
    The notice set out in the record seems to have been given, “By order of the common council,” pursuant to-the charter; and the resolution of the council, passed on the 7th day of November, 1863, on the report of the-judiciary committee thereof, after this controversy had been raised by the relator, that the respondent was then the “ legal incumbent of said office, duly authorized to hold the same and discharge its duties, until the 12th day of January, 1864, when his successor in said office for the next regular two years term thereof will duly qualify, according to section 13, of chapter two,, of the charter of. said city,’’ shows very clearly what the-intent and understanding of that body were in giving the notice of the election, and as to what officers were to be chosen.
    To us, it appears simply absurd, that the statement of the vacancy printed among other proceedings of the common council, on the third day of September, 1863, should be urged as actual or constructive notice that an election to fill a vacancy in said office would be held in Detroit on the 3d day of November thereafter.
    There being no law authorizing notice of such a vacancy to be thus given to the public, the proceedings of .the .council thus published were a simple nullity, with reference to such object: —10 Ind. 62, 67.
    The respondent was appointed to fill the vacancy on the 1st’ of September, 1863. He was to hold the office under the'charter “until the next annual election”: — S. L. 1857, p. 80, § 26.
    Of course, this provision pre- supposes that a regular, valid election to fill the vacancy will be held at such, “next annual election.’5

      If such regular election to fill the vacancy should not take place, then, of course, under another provision, the incumbent “ would hold his office until his successor would be elected or appointed and qualified, and should enter upon the duties of his office.” S. L. 1857, p. 77, § 13.
    Or, if it be said that the appointment of the respondent only continued till the “next annual election,” then, there having been no valid election to fill the vacancy, the resolution of the council, before referred to, of November 7, 1863, that the respondent was the legal incumbent of said office, duly authorized, etc., had the effect of a re-appointment of the respondent: — 22 Barb. 72.
    The relator admits, in the record, that there was no notice given of an election to fill this vacancy; and we contend that, without such notice, no election to fill it, and no votes cast for the purpose of filling it, could be valid.
    [In this connection counsel cited and commented on, 15 Ind. 327 ; 3 Cal. 477; 14 Barb. 259; 2 Cal. 135; 6 Cal. 26; 8 Ohio St. 620; 11 Cal. 49; 12 Cal. 409; 10 Ind. 62; 17 Ind. 554.]
    Actual, formal notice might not be necessary, if “the people had, in truth, been called upon, and had spoken; and if no portion of them failed in knowledge of the pendency of the question, or to exercise their franchise ”: —10 Iowa, 212; 7 Iowa, 186; 9 Iowa, 334.
    It can not be pretended that the electors of the city generally knew of an election to fill this vacancy. In this respect the case is clearly distinguishable from People v. Cowles, 3 Kern. 350.
    In that case, also, the vacancy occurred less than fifteen days before the general election, in which case no notice at all of the vacancy, “ with reference to an election to fill it,’’ was required by law to be given: — Ibid. 358, 361.
   Manning J.:

The motion to dismiss the information, for the reason that the term of the office which respondent is charged with having usurped has expired since the filing of the information, must be denied. If the only object of the proceedings was to oust the incumbent, there would be great propriety in granting the motion. But the statute under which the information is filed provides for the imposition of a fine, in the discretion of the Court, and the payment of costs by respondent should he be found guilty of the intrusion: — Comp. L. § 5312, 5311. And when the office is claimed by another, the information may be so framed, as in the ease before us, as to try the right of such person to the office, who, on obtaining a judgment in his favor, at any time within one year thereafter, may make and file a suggestion that he has sustained damages to a certain amount by reason of the usurpation, and pray judgment therefor against respondent: — Comp. L. §§ 5293, 5297. And such information may be filed without leave of the Court:- — Comp. L. § 5291. When it is necessary to obtain leave of the Court to file the information, the Court may, in' its discretion, refuse to permit the information to be filed. In the case of The People v. Sweeting, 2 Johns. 184, the Court refused to give leave because the term of office would expire, and the office be filled by an election, before the proceeding to oust the incumbent could be made effectual. And in The Commonwealth v. Athearn, 3 Mass. 285, leave was refused on the ground that the term of office would expire before the question could be tried. But in The People v. Loomis, 8 Wend. 396, the Court refused, under a statute like our own, to dismiss although the term of office had expired.

Before speaking of the pleadings, it will be necessary to refer to the city charter, and to the law of the case.

By the charter an annual city election is required to be held on the first Tuesday after the first Monday of November in each year, at such places in the several wards as shall be designated by an order of the common council at least twenty days previous thereto, notice of which, and of .the officers to be elected, and of the time for opening and closing the poll, is required to be given within three days after the date of such order, by the city clerk, by publication in two or more daily papers published in the city: — Laws 1857, p. 82, § 1. A city attorney is to be elected, and to hold his office for two years: — Ibid. p. 74, § 1, and p. 77, § 13. And if an office becomes vacant, Jt may be so declared by the common council: — Ibid. p. 80, § 22. And if a vacancy occurs in any elective office, other than Mayor or alderman, the common council are to appoint some person eligible under the charter to serve in such office until the next annual election, when the vacancy is to be filled for the residue of the official term: — Ibid. p. 80, § 26. Such are the provisions of the charter bearing on the questions before us.

The common council declared a vacancy in the office of city attorney, and appointed the. respondent to fill it. And the information states that the relator at the next annual election thereafter was duly elected ' to fill the vacancy, &c.

In the notice of election given by the city clerk, no mention whatever was made of the vacancy. Did this ■omission in 'the notice vitiate the election of the relator?

There can be no doubt had the notice omitted to state that there was to be an election of an alderman in each of the wards of the city at that election, that such omission would not have rendered void the election of such officers. The statute in this particular is directory merely. It is nevertheless the duty of the city clerk to see that it is carried into effect, and if he should wantonly and corruptly omit to give notice of the officers to be elected» he may be punished therefor criminally. To go further than this and hold the election void, would place it in the power of the city clerk to defeat the election of any or all city officers to be elected at an annual election. Electors are supposed to know what officers are to be elected at a general election, and, if in doubt, can readily inform themselves. The design of the notice is to remind them of their duty to the public. It is in no way connected with the elector’s right to the elective franchise; nor is it a condition precedent to be performed by another to entitle him to exercise the right. There is a material difference, it is said, between an election for a full term and to fill a vacancy. The charter makes none in the case before us, and we can not make any. We know of no rule of construction by which we can hold the notice both necessary and unnecessary; that is, necessary to the validity of the election of some officers to be elected, and not as to others. The alleged difference is, that an elector may not know of the vacancy, while he is presumed to know of the election of officers for a full term. He must however be presumed to have cognizance of the proceedings of the common council, which are published in the official paper of the corporation. And the vacancy was declared by that body, which, at the same time, appointed the respondent to fill it until it should be filled at a general election.

The first 'plea to the information admits the vacancy, states the appointment of respondent to fill it, by the common council, and says that at the next general election in said city, held on the third day of November, 1863, there was no election to fill the unexpired term. The People reply to this part of the plea, taking issue on the election to fill the vacancy, and conclude to the country. The plea admits the holding of the annual election, but denies it was an election to fill the vacancy. If the views we have expressed are correct, it was an election to fill the vacancy, as well as for the election of officers for a new term; and the issue made by the plea and replication for a jury to try is one of law and not of fact. We mention this in passing, not that there is any question in regard to it now before us.

The plea further states, “ nor was there any notice given of such vacancy.” The People in their replication to this part of the plea admit its truth, and set forth in full a notice given of the city election which mates no mention of the vacancy; and conclude with a verification. The respondent demurs, and the People join in the demurrer. Want of notice we have stated does not vitiate the election. The plea consequently is bad. So is the replication, as it tenders an immaterial issue by the new matter set up in it. On this demurrer there must be judgment for the People, as respondent committed the first error.

Respondent’s second plea, like the first, sets up various matters as a defense, none of which are material except the statement that the electors of the city did not vote to fill the vacancy, and that no ballots were cast for that purpose. The plea concludes to the country, and is demurred to by the People, in which the respondent joins, because, first, it offers to put in issue' matter not properly issuable; and because, second, it does not conclude with a verification. It is not demurred to for duplicity. Neither of the objections stated in the demurrer is well taken. . For if there were no votes given at the election to fill the vacancy, the relator could not have been elected, and that part of the plea is therefore material. And it should not conclude with a verification, as it denies, or puts in issue, a material allegation in the information, which states that a large number of ballots to wit, 2800 in number, were cast for the relator to fill the vacancy. The issue formed by the information and plea, is, whether any votes were cast to fill the vacancy at the election. If there were not, as we have stated,, the relator oonld not have been elected. The information states that there were, and that the relator received the greater number of such votes; both which facts are material to show his title to the office, and both being material, respondent was at liberty to take issue on either of them.

The third plea is clearly bad, as it relates to the election of respondent for the full term, of which no complaint is made in the information.

There must be judgment for the People on the-demurrer to the second replication to the first plea, and on the demurrer to the third plea, and for the respondent on the- demurrer to the second plea, with leave to the People to withdraw their demurrer to that plea, and add the similiter. Neither party to have costs against the other.

Christianck and Campbell JJ. concurred.

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


author: Ciiristiancy J.:

text:
    The People on the relation of the Attorney General v. The President, Directors and Company of the Bank of Pontiac.

      Corporation: forfeiture of franchise by nonfeasance — The statute, Comp. L. §4854 which provides that “whenever an incorporated Company shall have remained insolvent for ono whole year,” &o., “it shall be deemed to have surrendered the rights, privileges and franchises granted” by its act of incorporation, “and shall be 'adjudged to be dissolved,” is applicable to corporations chartered before the statute was passed.
    The forfeiture must be declared in a judicial proceeding; and until the State chooses to insist upon the forfeiture, no one else has the right to question the existence of the corporation collaterally.
    But when a corporation has been guilty of such a breach of the condition of its existence or continuance as to authorize a forfeiture of its charter, it can not legally atone for such misconduct, and avoid the forfeiture, by subsequent good behavior.
    Where a bank became insolvent and suspended operations in 1840, and did not rosume again until 1864, it was held that the State had not, by laches, lost its right to insist upon tho forfeiture under the statute above quoted. The State shows sufficient diligence (if any is required) if it institutes proceedings and claims the forfeiture within a reasonable time after a resumption of business, or an attempt to resume, on the part of the corporation.
    Only fourteen months of the chartered existence of the bank remaining unexpired, when it resumed business after a suspension of twenty-four years, the Court, if it has a discretion so to do under tho statute, will not impose a fine instead of adjudging a forfeiture of the charter.

      Submitted July 14th.

      Decided October 11th.

      Information in the nature of a quo warranto.
    The Attorney General filed his information against the defendants, charging them, with usurping banking franchises. The defendants filed their plea .thereto, claiming to be exercising such franchises by virtue of a charter granted by the territorial council of the territory of Michigan, on March 26th, 1835, under which they organized April 23d, 1835. To this plea the Attorney General interposed three replications, the second and third of which only were considered by the Court. They are as follows:
    “And the said Attorney General further saith, that the said People ought not to be barred etc., because he says that after the passage of the said act of incorporation in the plea of the said The President, Directors and Company of the Bank of Pontiac mentioned, and after the said The President, etc., had entered upon the business of banking, to wit: on the first day of May, 1840, large amounts of the bills, notes and evidences of debt of the said The President, etc., had been put into circulation by the said The President, etc., and then were in circulation; and that while the said bills, notes and evidences of debt were in circulation, to wit, on the day and year last aforesaid, the said The President, etc., by the fraud, neglect or mismanagement of them or of some or aE of their ofBcers or agents, became wholly insolvent and unable to redeem the said bills, notes and evidences of debt so in circulation, in specie or other lawful money of the United States; wherefore the said The President, etc., to wit, on the day last aforesaid, discontinued, ceased and closed their banking operations, and from that time afterwards, to wit, until the first day of February, 1864, neglected to resume their banking operations; and this he, the said Attorney General, is ready to verify,” etc.
    “And the said Attorney General further says, that the said People ought not to be barred, etc., because he says, that after the passage of the said act of incorporation, in the said plea mentioned, and after the said The President, Directors and Company of the Bank of Pontiac had entered upon the business of banking, to wit, on the first day of May, 1839, the said, the President, etc., received from sundry persons large sums of money on deposit, and that afterwards, to wit, on the first day of May, 1840, and while the said sums of money still remained on deposit with them, they, the said The President, etc., by the fraud, neglect or mismanagement of them, or of some or all their officers or agents, became wholly insolvent and unable to pay the said sums of money so deposited, in lawful money of the United States, wherefore the said The President, etc., to wit, on the day last aforesaid, discontinued, ceased and closed their, banking operations, and from that time afterwards, to wit, until the first day of February, 1864, remained wholly insolvent, and neglected to resume their banking operations; and this he, the said Attorney General, is ready to verify,’’ &c.
    The defendants rejoined as follows:
    “ And the said defendants, the said President, Directors and Company of the Bank of Pontiac, as to the said plea of the said Albert Williams, Attorney General, secondly above pleaded in reply to the aforesaid plea of them the said defendants, protesting that the said replication and the matters therein contained are not sufficient in law to convict them the said defendants, of the premises in the said information above charged upon them, nor to remove them from the liberties, privileges and franchises aforesaid, and that they need not nor' are they bound by the law of the land to answer thereto, yet for a rejoinder in this behalf, the said defendants say that they, the said President, Directors and Company of the Bank of Pontiac, afterwards, to wit, on the second day of February, 1864, and before the filing of the information in this behalf, and at Pontiac aforesaid, became and were, and ever since have been, and still are, wholly solvent and able to redeem in the lawful money of the United States, their bills, notes and evidences of debt, and that they did then and there resume, and have since continued their banking operations; and this they, the said defendants, are ready to verify, etc.
    “ And the said defendants, the said President, Directors and Company of the Bank of Pontiao, as to the said plea of the said Albert Williams, Attorney General of the State of Michigan, by him thirdly above pleaded, in reply to the said plea of the said defendants, protesting that the said replication and the matters therein contained are not sufficient in law to convict them, the said defendants, of the premises in the said information above charged, nor to remove them from the liberties, privileges and franchises aforesaid, and that they need not nor are they bound by the law of the land to answer thereto, yet for a rejoinder in' this behalf, the said defendants say that they, the said President, Directors and Company of the Bank of Pontiac, afterwards, to wit, on the second day of February, 1864, at Pontiac aforesaid, and before the filing of the information in this behalf, became and were and still are wholly solvent, and able to pay all sums of money on deposit received by them and remaining with them, and that they did then and there resume their banking operations, and have ever since exercised and still do exercise them, and that they are able and ready to pay all their indebtedness on demand; and this they, the said defendants, are ready to verify,” &c.
    The Attorney General demurred to these rejoinders.

      A. ’Williams, Attorney General, and T. M. Cooley for the People:
    The question involved in the case is whether, where a bank is chartered for a period of thirty years, and after being five years in operation, it then becomes insolvent, and .unable to pay its circulating notes, and thereupon suspends its operations until but a single year of its chartered life remains, it may then, after having for nearly five-sixths of its corporate existence totally failed in the object of its creation, excuse its corporate nonfeasances and misfeasances by simply showing that it has now, at the eleventh hour, become able to pay its debts, and again commenced issuing its bills?
    That the charter of a corporation implies and requires that it shall perform the business for which it was instituted, and that a substantial suspension of the same after the commencement is a violation of the charter, is too well settled for question: — Matter of Jackson Marine & Fire Ins. Co., 4 Sandf. Ch. 559; Ward v. Sea Ins. Co., 7 Paige, 294; State v. Bank of South Carolina, 1 Speers, 433; State v. Commercial Bank, 10 Ohio, 539. See also, Lumpkin v. Jones, 1 Kelly, 27; State v. Real Estate Bank, 5 Pike, 596; Commonwealth v. Commercial Bank, 28 Penn. 383 ; Attorney General v. Bank of Michigan, Har. Ch. 315; Cases collected in A. & A. on Corp. § 774, notes.

    Indeed the doctrine of these authorities is fully admitted by the pleadings, and the defense relied upon is, the resumption of business before information filed. Our position is, that where a misuser of their franchises has once been committed by a corporation, or a breach of the conditions enjoined upon them as conditions of their creation and continuance, sufficient to forfeit their charter, mere subsequent good behavior in such respects will not legally atone for such a cause of forfeiture : — People v. Fishkill & Beekman Plank Road Co., 27 Barb. 458; People v. Hillsdale & Chatham Turnpike Co., 23 Wend. 254.
    The case before the Court is hardly a case of subse-_ quent good conduct. There is here only an attempt to resume after twenty-four years suspension. The State had good reason to suppose, from the long inaction, that the corporation had designed a surrender of their charter.

      Near the time of its termination, however, the authorities hear of an intention to resume.
    The putting out a large circulation as the charter is about to expire is hardly consistent with honest intentions. The State, therefore, takes proceedings to insist upon the forfeiture which has occurred. But, before these proceedings can be actually commenced, the corporators succeed in throwing the doors of their office open to the public. ■At the very most, this case only amounts to an offer to return to good conduct.
    But the State, under the circumstances, declines to accept it. The State has not acquiesced in the corporation returning to its business, and consequently has waived no right to insist upon the forfeiture. It has taken action immediately on the corporation evincing a design to resume.
    But we claim that, by a general provision of statute, the charter in question is shown to be forfeited, by a total suspension of business for one year, and continued insolvency during that period: — Comp. Laws, § 4854.
    The only question that [can arise on this point is, whether this provision can apply to the corporation in question, which was chartered before the statute was passed. But applying it to prior charters takes away no vested right, violates no contract, and inflicts no punishment. It simply fixes a period beyond which a continued misuser or nonuser should be fatal to the corporate existence. A corporation has no right whatever to suspend the performance of its corporate duties. That it will do so is not usually within legislative contemplation when charters are granted. The right to suspend is certainly no part of the contract with this corporation.
    It is not necessary for us to claim that this act applies to this corporation, so as to forfeit its charter for the suspension for a year before the act was passed. But we insist that it was competent to pass such a law looking to the future, and applicable to pre - existing corporations. See People v. Hillsdale & Chatham Turnpike Co., 23 Wend. 254.
    The statute is in some Bense a police regulation, and may be sustained on similar grounds.
    It is also analogous to statutes of limitation. At most this corporation could only have the right to resume business after suspension, in a reasonable time. To fix that reasonable time must be within the proper province of legislation. It is always competent for the legislature to declare within what reasonable time a party shall assert his rights, and statutes of limitation which apply to preexisting demands are to be construed as if the demands accrued at the date of the passage of the statute: — 8 Wend. 661; Lastly v. Cramer, 2 Doug. Mich. 312.

      T. Romeyn and M. L. Drake for defendants:
    Can the State, after acquiescing for a long time in the suspension of business by a corporation, oust it of its chartered rights, on account of such suspension, after the corporation has resumed and is exercising its proper functions ?
    We concede that the acts stated in the replication afforded good ground for forfeiture, if there had been no resumption. We admit the doctrine of the duty of corporations to exercise their corporate powers, as expressed in Ward v. Sea Insurance Co., 7 Paige, 297. This is a condition of the grant of the franchises. The corporation having been regularly formed, it is a condition subsequent that it shall discharge its legal duties, or the grantor may enter and oust it. Its right to its franchises, in such case, is a voidable estate. But such estate may be confirmed ; and it is an elementary principle in relation to corporeal hereditaments, that if the condition is substantially complied with, at any time before the grantor has made entry, he can not claim the forfeiture. He is deemed to have acquiesced and waived.
    The position 0f the relator is, that insolvency for anytime more than a year is ground for forfeiture, although there may have been a payment of adequate capital and an actual resumption of business before the information.
    [Our statute declaring one year’s suspension of business a cause of forfeiture, Comp. L. § 4854, is cumulative to the common law causes, and authorizes and requires a court to declare a forfeiture for such suspension : — Bradt v. Benedict, 17 N. Y. 93.]
    Apply the doctrine to what we know historically to have been the course of the Michigan State Bank. After it had resumed, had acquired new stockholders and fresh capital, [and become the leading institution in the State, would this Court have arrested its business and declared its charter forfeited?
    Our first legal position is, that the continued suspension of business and admitted insolvency of the bank did not operate as a dissolution or surrender of the franchise. Town v. River Raisin Bank, 2 Doug. Mich. 538, settles this point. See, also, Mickles v. Rochester City Bank, 11 Paige, 125; Atchafalaya Bank v. Dawson, 13 Louisiana, 497.
    We next contend that the resumption of business by the bank, before information filed, is an answer to the information. See People v. Bank of Niagara, 6 Cow. 211.
    This case is criticised in 23 Wendell, at page 258, but it will be seen that in the last case it did not appear that the corporation had complied [with its charter when the suit was hr ought.

    We have been unable to find a single case in which the court has granted judgment of ouster for insolvency, or any other removable cause, not connected with the creation of the corporation, and not in the nature of a con-edition' precedent, and not admitting of being repaired, when such cause bad ceased to operate.
    The analogies of the law are all against it. If a tenant is bound to repair or to do any other thing, and omit it, and the landlord do not enter while the tenant is in default, can he do so after the tenant has complied with the agreement?
    There may be cases where there can be no atonement — where there have been acts of malfeasance, positive and willful. But where the act complained of is in the nature of a nonfeasance, as the non-election of directors, or the permitted dormant state of the corporation, and no action is taken by the State until such cause has been removed, it is believed that no instance can be found where a forfeiture has been declared.
    We insist, further, that this rule of law is supported by the undoubted history of corporations in this country.
    Finally, we ask the Court to regard the consequences.
    The question is upon the general principle involved in the decision sought by the Attorney General. More than half of the mining companies on Lake Superior would fall before its application.
    And where an information has been allowed by the Court to be filed, or where it is filed by the Attorney General officially, the Court has no discretionary control over the proceedings, but must pronounce the strict judg ment of the law: — State v. Brown, 5 R. I. 1.
   Ciiristiancy J.:

By an act of the Legislature, of April 5th, 1839 — Laws of 1839, p. 104, § 49 (which, with slight alterations of phraseology, was incorporated in- the Revised Statutes of 1846, Chap. 117, § 8.; Comp. L. Ch. 155,) — it was expressly provided that, “whenever any incorporated company shall have remained insolvent, or shall have neglected or refused to pay its notes or other evidences of debt, or shall have suspended the proper and legitimate business of such corporation, for one whole year; it shall, in either case, be deemed to have surrendered its rights, privileges and franchises, and -shall be adjudged to be dissolved.”

The rejoinder of the respondents to the second replication admits that, having previously organized and entered upon the business of banking, the corporation became insolvent on' the first day of May, 1840, and on that day ceased, discontinued and closed their banking operations, and from that time until the first day of February, 1864, neglected to resume such banking operations; but alleges that, on the second day of February, 1864, they became and were, and ever since have been, and still are, solvent; that, on the last mentioned day, they resumed and have since continued their banking business.

The rejoinder to the third replication admits that, having previously organized and entered upon the business of banking, the corporation became insolvent on the first day of May, 1840; that on that day they discontinued, ceased and closed their banking operations, and that from that time until the first day of February, 1864, they remained insolvent and neglected to resume their banking operations; but alleges that, on the second day of February, 1864, they became and were, and ever since have been, and still are, solvent; and that they then resumed their banking operations, and have ever since exercised, and still do exercise them, &c.

These admissions bring the corporation directly within the provisions of the act of 1839, and the Revised Statutes above cited, so far as relates to the continued insolvency and suspension of business for a year.

We see no reason to doubt the validity of the statute, either in its application to charters of incorporation previously existing, or to those subsequently passed. Any of the grounds mentioned in the statute, upon which a surrender is to be presumed and the corporation is to be. dissolved,, would, have been good cause of forfeiture at common law; and this though they might not have continued for an entire year. Each would constitute a violation of the duty, which the corporation, by accepting the charter, undertook to perform, as the consideration of the grant. And it is well settled that it is a tacit condition annexed to every grant of incorporation, that the corporation shall act up to the end or design for which it was incorporated:'— Ang. & A. on Corp. § 774. And see Matter of Jackson Marine & Fire Ins. Co., 4 Sandf. Ch. 559 ; Ward v. Sea Ins. Co., 7 Paige, 294; State v. Bank of South Carolina, 1 Speers, 433.

The respondents do not deny the correctness of this position: they admit that the acts or derelictions stated in these replications, and admitted by the rejoinder, would constitute good ground of .forfeiture if the bank had not become solvent and resumed business before the filing of the information. But it is insisted that the bank did not become, • ipso facto, dissolved for the causes mentioned; that its corporate existence continued till the State should see fit to enforce the forfeiture; that the failure of the’ State to insist upon the forfeiture, by the institution of judicial proceedings, must be construed as an acquiescence, on the part of the State, in the failure of the corporation to perform the condition of the grant, and that this acquiescence, having continued until the corporation became solvent and resumed business, operates in some way as a remission of such past transgressions, or a waiver of the right to insist upon a forfeiture on that ground.

It is true the facts admitted did not operate, ipso facto, to dissolve the corporation without a judicial proceeding for that purpose; this was necessary on the part of the State to ascertain judicially the existence of these facts; and until the State chose to insist upon the forfeiture, no one had a right to question the existence of the corporation collaterally. The State might, through the Legislature, choose to waive the forfeiture entirely; and we are bound to presume they would do so in all proper oases. But I am not aware of any case in which it has been decided that a corporation, having been guilty of such a breach of the conditions of its existence or continuance as to authorize a forfeiture of its charter, could legally atone for such misconduct, and avoid the forfeiture by subsequent good behavior. The contrary has been several times held in the courts of New York: — People v. Fishkill and Beekman Plank Road Co., 27 Barb. 458; People v. Hillsdale and Chatham Turnpike Co., 23 Wend. 254; and see Matter of Jackson Marine and Fire Ins. Co., 4 Sandf. Ch. 559. In the case above cited from 23 Wendell, 254, was it justly said by the court that “the argument [the same here urged by the respondents] goes to prove that a corporation may practice all manner of abuses, by com. mission or omission, if it be careful to stop before the Attorney General can be informed and institute a prosecution.” In The People v. Bank of Niagara, 6 Cow. 211, relied upon by the counsel for the respondents, no such question was involved.

We can see no ground for holding that the neglect of the State to prosecute for a forfeiture in this case should operate as an acquiescence on the part of the State in the breach of the conditions of the charter, or as a waiver of any forfeiture for such breach. This corporation became insolvent and suspended its corporate business in the face of an express statute of the State then and ever since in force, which expressly declared that any corporation, remaining thus insolvent or thus suspending its business for [one year, should be deemed to have surrendered its corporate rights and franchises. The neglect, therefore, of the corporation for one year to restore its solvency, or to resume its business, would justly authorize the legislative and the executive departments of the State to infer that the corporation intended, by this neglect, to abandon or surrender to the State all claim to any corporate rights or franchises; that it had no intention to attempt their resumption, and that no proceeding on the part of the State would therefore become necessary to put an end to its corporate existence; and this inference would naturally be strengthened with every year’s continuance of such neglect. The Legislature would naturally act upon this inference, in judging of the propriety of granting other charters of incorporation, to supply the public wants or convenience which this corporation had once been designed but had failed to subserve. See opinion of the Vice Chancellor in Matter of Jackson Marine and Fire Ins. Co. above cited.

We think, therefore, that after this corporation, in the face of this statute, had allowed itself to remain insolvent •and its corporate powers to lie dormant without an attempt to fulfill the purposes of its creation for a whole year, the State •shows sufficient diligence (if any be required) if it proceed to institute proceedings, and to claim a forfeiture, within a reasonable time after it is informed of the first visible manifestations of returning life, or of the first public indication of an intent to assert its legal existence by the exercise of its original franchises. The resumption of business, therefore, or the attempt to resume after having remained insolvent, and to all outward appearance inanimate, for nearly a quarter of a century, is rather a justification for, than a bar to, this proceeding by quo warranto. The People •are therefore entitled to judgment upon the demurrer to the rejoinder, with costs.

In some cases of quo warranto against corporations, where the forfeiture is sought on the ground of a usurpation of «orne power not granted by the charter, or for some single act of misfeasance, malfeasance or neglect, and the corporation has been found guilty, courts have exercised a discretion, and imposed a fine, instead of adjudging a forfeiture of the charter. But if we have any discretion under this statute, which expressly declares that the corporation shall for such acts or dereliction he dissolved — a question we shall not here discuss — we are unable to discover any fact or circumstance iu the conduct of the respondents to call for the exercise of such discretion in mitigating the penalty of forfeiture which the statute has pronounced.

After having remained insolvent and ceased to transact business for nearly twenty-four years, they make this ostensible attempt to resume, and to assert the right of issuing hank notes, when less than fourteen months of their chartered life remained, and when, if it had all along continued its business, and been actuated by honest motives, it would naturally be making arrangements to call in its paper and to close its business. The attempt to resume under such circumstances, and at so late a period of its chartered existence, is at least somewhat suspicious, and not calculated to produce the conviction of an honest purpose. The judgment of the Court must therefore he, that this corporation has surrendered its rights, privileges and franchises ; that it he ousted and altogether excluded therefrom, and that the corporation he dissolved.

The other Justices concurred.


author: Christiancy J.:

text:
    Charles P. Avery v. Chauncey S. Payne. Chauncey S. Payne v. Charles P. Avery.

      Partition between tenants in common: agreement betwem them inconsistent therewith.— The statute— Comp. L §4616 — which provides that “all persons holding lands as joint tenants or tenants in common may have partition thereof in the manner provided in this chapter,” does not prevent such tenants from making contracts, modifying or limiting their otherwiso incidental right to a partition, either at the time of creating the joint interests, or afterwards.

      Where the owner of lands conveyed an undivided moiety to another, for a sum of money less than its value, to be paid from the proceeds of sales to bo made thereof, and secured by mortgage on the lands, and a part of the consideration consisted in the services of the purchaser in taking charge of and selling the joint property under a contract between them, and a principal part of the ^ seller’s security for the purchase price and for the efficiency and fidelity of the purchaser in the management and sale of the property, consisted in the control he would have over the sales of the purchaser’s interest, it was held that bo long as the seller was not guilty of refusal to perform his part of the contract, or of any default which would relieve the purchaser from the obligation to perform, or prevent his performance, the latter was not entitled to partition.
    Mortgages executed by the seller on his undivided half, not alleged or shown to have interfered with sales, or otherwise to have operated to the prejudice of the purchaser, will constitute no reason for partition.
    Costs.— Bill and cross hill. In the court of chancery the latter was dismissed and the former sustained. On appeal to the Supreme Court both hills were dismissed, but, under the circumstances each party left to pay-his own costs in the Court helow.

      Heard, July 6th, 7th, 8th, 10th, 11th, and 12th.

      Decided, October 18th.

    Appeal in chancery from Genesee circuit.
    The original bill was filed by Avery for a partition of certain lands situate in the county of Genesee, of which the bill alleges complainant and defendant are tenants in common, each owning an undivided moiety; that com plainant became such owner and tenant in common by a deed of conveyance from defendant Payne and wife on or about the 19th day of February, 1856; that complainants at the time of such conveyance gave back to Payne a mortgage, accompanied by bis bond, to secure the payment of twenty - five thousand dollars out of the proceeds of sales of the said premises according to the terms and conditions specified in said bond; that a portion of tbis sum had 'already been paid, complainant consenting that whenever the partition should be made, the mortgage for so much as should be then due should be a charge and lien upon the parts or portions which should be set off to complainant.
    The bill also states that defendant Payne has since said conveyance to complainant incumbered bis undivided half of certain pieces or parcels of the premises, by three several mortgages to Crane, Youngs and Newton, which the bill prays may, after such, partition, be a charge only on the lots or parcels allotted to said Payne. The bill in ether respects is an ordinary bill of partition.
    The answer of Payne admits the execution of the deed from himself and wife to complainant, but avers that it was intended to convey the undivided half of only parts and not the whole of the premises purporting to be conveyed by it, that it was drawn by complainant, and that complainant was at the time acting not only for himself but as the attorney and legal adviser of defendant, and that defendant reposed special confidence in him, as such, and that he would draw the same according to the understanding and agreement between them, and that complain ant assured him that the deed was so drawn; that he, relying upon such assurance, executed it without particular examination, and without taking other advice than that of complainant, who was the only legal adviser of defendant in that business. Defendant avers that he has since ascertained that complainant fraudulently, and with intent to cheat defendant, drew the deed so as to embrace more-land than complainant was entitled to according to the terms of the previous agreements and understanding between them, and more than he had agreed to convey. Claims that the deed is for this reason void: that previous to-the execution of the deed, it was agreed between the defendant and complainant, substantially, that defendant would sell and convey to complainant an undivided half of certain parcels of land which, with certain other parcels, are embraced in said deed, for the sum of $25,000, to be paid to defendant by complainant out of the proceeds of sales of the said undivided half; the full amount of such proceeds to be paid over to the defendant as fast as sales could be made until the $25,000 should be fully paid; and that in case for any reason any portion of such proceeds should be retained by complainant, he should pay to defendant interest on such portion till the same should be paid to defendant; and that, as a portion of the land was productive, complainant should pay defendant, annually, five hundred and sixty dollars, as the estimated though not the real amount of the yearly income expected to be derived from the undivided half of such productive portion: and that it was further at the same time agreed, that complainant should, without charge, take the oversight and management of the whole of the lands, an undivided half of which was to be conveyed as aforesaid, and should attend to the selling thereof, and to the collection of the purchase money, and of rents, income and profits of such parts as were productive, and in case of the absence of defendant, or whenever complainant should be desired by the defendant to do so, he should attend to and transact the business of the defendant generally, whether legal or otherwise, and should, in all things and at all times protect, guard and secure the rights and interests of defendant, as well in all dealings and business transactions with the complainant himself, or in which he was concerned, as with all others — all which was to be without charge — complainant being attorney and counsellor at law, and defendant being a layman and entirely unlearned in law: that said deed was executed for the purpose of carrying out said agreement: that the bond and mortgage executed by complainant for the $25,000 were apparently intended, and by defendant understood, to secure to him the performance of said agreement: that they were drawn by complainant; that defendant did not at the time read said bond and mortgage, but was assured by complainant they were in accordance with said agreement, and took them in the full confidence they were so, but that the bond was afterwards found to be defective and was taken back by complainant and corrected, and not returned, but instead thereof complainant afterwards delivered to defendant another bond. This bond was in the penalty of $50,000, conditioned for the payment of $25,000 out of the proceeds of the sales of the lands described in the mortgage accompanying the bond, as follows: one half of such proceeds, whether the same should be in cash or securities, to be delivered over to said Payne, his executors, &o., to be indorsed as payment on said bond: said Avery to be charged with interest upon securities while they remained in his hands, before delivery to defendant, and seven per cent interest on the cash proceeds which should so remain in his hands, to be paid as above provided out of said proceeds. In taking such securities said Avery to exercise ordinary prudence, and none to be considered indorsable thereon unless they have been taken upon sales fairly made and in good faith; said bond is also conditioned that “the sum of five hundred and sixty dollars each and every year until this bond is fully paid (that sum being the estimated value of the yearly rents and income of the productive property embraced in said mortgage), is to be added to the principal of this bond, to be paid as above provided, with interest on said sum to be computed from the first day of April each year, commencing with April 1st, 1857. But in case of the sale of said Avery’s interest in any of the productive property aforesaid, a deduction is to be thereupon had, from the said $560, of an amount equal to the annual interest on such sale, and thereafter the balance only, after such deduction, is to be carried to said principal, and paid as above provided, with interest on such balance.’’ Defendant avers that he did not read this bond, but heard it read by complainant, who stated it to be correct and in accordance with their agreement, and from the assurances and explanations of complainant in regard thereto, the defendant (not being capable, as complainant well knew» for lack 'of legal learning and knowledge, to determine the legal effect of the language used in the condition of said bond, and having the most perfect confidence in the legal ability, competency, honesty and integrity of complainant, and relying upon him as his legal adviser) without exercising his own judgment, took it for granted and believed that the bond was substantially in accordance with the real agreement of the parties, and defendant took the bond in lieu of the other which had been taken back by complainant and retained by him.
    If the Court shall find the deed valid, and that said bond and mortgage are not in accordance with the real agreement between the parties, defendant submits that they should be reformed and corrected by the Court, so as to conform to said agreement. He admits that certain payments have been made, but that said payments, deducting the interest, do not amount to over one thousand dollars. He denies that the premises are susceptible of partition as prayed for in the bill, and insists that it would be ruinous to defendant for partition of the premises to be made.
    A replication was put in to this answer.
    The defendant Payne also filed a cross bill, setting forth and enlarging upon the various matters of defense stated in his answer, and praying, among other things, that the agreement between him and Avery, the deed given by him, and the bond and mortgage given back by Avery, may be corrected and reformed by the decree of the Court so as to conform to the real agreement between the parties. As the Court found this bill not sustained by the testimony, it is unnecessary to set it forth, or to give any synopsis of the answer. And it is believed that the. foregoing synopsis of the pleadings in the original case is sufficient, in connection with the opinion, for a full understanding of the points decided by the Court.
    The two cases were heard together in the Court below, and a decree made dismissing the cross bill, and granting partition as prayed by the original bill. Payne appealed to this Court.

      L. Walker, W. Newton and G. V. N. Lothrop, for the appellant,
    insisted, among other things, that partition would not be granted in opposition to the agreement of the parties, where they, or either of them, have assumed duties and obligations inconsistent with the unrestrained right to enjoy the property in severalty: — Dart on V. & P. § 434, Colman v. Colman, 19 Penn. 100; Brown v. Lutheran Church, 23 Penn. 495; Holmes v. McGee, 27 Mo. 597.

      J. G. Sutherland, C. P. Avery and A. B. Maynard, contra,
    argued that a tenant in common was entitled to partition as a matter of right: — Comp. L. § 4616; Smith v. Smith, 10 Paige, 470: that the testimony showed Payne to have violated the spirit of the agreement between the parties in refusing to consent to proper sales, and that the incumbrances he had placed upon his interest were such an impediment to sales as prevented Avery having the full benefit of his ownership without partition.
   Christiancy J.:

[After remarking upon the great and unnecessary length of the record, and the large amount of irrelevant testimony taken on both sides.]

Voluminous and excursive as the evidence is, it fails to throw any light upon some of the more important questions presented by the pleadings, and upon several others it is too slight to lead to a satisfactory conclusion. What were, in fact, all the features or provisions of the real agreement between the parties upon which the conveyance was to be made to Avery, and what was the real nature of some of the subsequent- transactions between them in reference to the. correction of the bond, &c., is left by the evidence in painful uncertainty. The knowledge of the facts, except as they appear by the written evidence, seems to have been mainly confined to the parties themselves. Answers under oath were waived, and the testimony was taken prior to the act of 1861, allowing parties to be witnesses. A few hours examination of the parties would doubtless have thrown more light upon these cases than all the testimony which has been taken.

It is however clear from the pleadings and proofs, that Avery paid no pecuniary consideration at the time for the undivided half of the lands conveyed to him by Payne and wife, which he asks to have set off to him in partition, nor did he agree to pay any pecuniary consideration therefor, except from the proceeds of the sales to be made of the conveyed lands; that the price agreed to be paid from such proceeds was twenty-five thousand dollars; that the lands thus sold were, with a good title, worth some ten thousand dollars more than this sum; that Avery did not, under the conveyance which was executed to him, assume the risk of the title which was then in litigation, as that conveyance was by warranty, and it does not appear that Payne was not perfectly able to respond in damages if the title had failed (and we judge from the evidence his means were ample for this purpose). Whatever other services Avery was to render, or whatever other consideration Payne was to receive, it is clear that, as a part and a very material part of the consideration, without which Payne would not have consented to make the conveyance, Avery was by the agreement to take charge of and manage the common property after the conveyance (the half still belonging to Payne as well as that to be conveyed), and to make sales thereof without charge; that Payne would not be bound to assent to any sale which he might deem disadvantageous, though requested by Avery; that Payne relied, and, by the agreement between them, had a right to rely upon the common interest which Avery would have with him as a tenant in common, and the control he, Payne, would still retain over the sales (when called upon to deed) as his security for Avery’s efficiency and fidelity in the management and sale of the property. We think it also very clear that this common interest, and the power the arrangement would give Payne over the sales to be made of the common property, constituted a valuable security in his hands, as it would enable him to exercise to some extent an influence to prevent improvident sales of Avery’s half, from the proceeds of which he was to receive his twenty-five thousand dollars purchase money. There is nothing in the evidence tending to show that Payne would have consented to make the conveyance without the security thus afforded; in other words, we can see nothing in the evidence to induce the belief that he would, have been willing to have sold to Avery one half in value of the property in severalty, for the same consideration in other respects. That he would not for this consideration have thus sold in severalty, nor, if he supposed there was to be a partition, before the purchase money at least was paid, we think abundantly appears from the evidence.

To grant a partition, and allow Avery’s portion to be set off in severalty before the purchase - price is paid, while a large portion of the property remains unsold .¡•which, for aught that appears, Payne is still anxious to sell), and before Payne has by his own default or otherwise released Avery from his obligations in this respect, would be to deprive Payne of a large portion of the consideration he was to receive for the land.

The conveyance was ¿therefore made to Avery under and in pursuance of an agreement which was inconsistent with a present right of partition 'on his part; and no partition can bo granted in the present aspect of the case, unless the statute — Comp. L. § 4616 — is imperative in such a case, or unless Payne, by his refusal to carry out his part of the agreement, or by some clear .default on his part, deprived Avery of some portion of his rights under the agreement, or prevented his performance of it.

We think the statute can only be considered imperative in its application to ordinary joint tenancies or tenancies in common, where the right of partition is left to result, as an ordinary legal incident- of such tenancy; and that it was never intended to interfere with contracts between such tenants modifying or limiting this otherwise incidental Tight; nor to render it incompetent for parties to make such contracts, either at the time of the creation of the tenancy or afterwards.

We have not been able to discover any satisfactory evidence of Payne’s refusal to perform his portion of the contract, nor of any default on his part which would relieve Avery from the obligation to perform, or prevent his performance. It is true that, after a certain time, the relations of the parties ceased to be friendly, and they seem mutually to have ceased approaching each other upon business matters, and sales ceased to be made: But it does not appear that Payne ever wrongfully refused upon request to join in any proper sale, negotiated by Avery. And for aught that appears Avery might have continued to make sales of the common property as before, until the whole was disposed of.

On the part of Avery, however, it was strongly urged upon the argument) that the three mortgages executed by Payne, to Crane and to Youngs in November, 1858, and to Newton in May, 1859 (sometime after all sales had ceased to be made), operated as a breach of the spirit of the agreement between the parties, and put it out of the power of Avery to make sales, as he otherwise might have done: and that he can not therefore derive the full benefit of his purchase without a partition.

However well founded this position might be under certain circumstances, there are several conclusive reasons why the giving of the mortgages can not be allowed to confer a right to partition in the present case.

JFirsi. The complainant in the original bill has not placed his claim to a partition on any such ground, but relies wholly upon the incidental right springing from a tenancy in common. To have enabled him to claim a partition on the ground now suggested, he should have set forth or relied upon the agreement in his bill, and alleged the mortgages and their effect in preventing or embarassing sales, as a breach of the agreement by Payne; perhaps also a request to Payne to procure the discharge of the mortgages. The question, whether the mortgages had in fact operated to prevent or retard sales, would then have been in issue, and might have been decided by proof. But no such question has been put in issue, and no such proof was therefore admissible. When Payne’s answer was put in setting up the agreement, the bill should have been so amended as to present this point, if intended to be relied upon.

But Second. Had the bill contained these allegations, there is no proof to sustain them, or to show that the mortgages, in fact, proved detrimental to Avery in any respect.

And Third. While the Court can see that it would depend upon circumstances whether the mortgages would or would not operate to prevent or embarrass sales, they can not without proof judicially know what were the circumstances during the period in question, and can not therefore judicially say whether the mortgages did, in fact, thus operate. There may have been no opportunity during that period to make sales, had there been no mortgages; and purchasers may have been found willing to purchase at the full value of the property, assuming the mortgages as part of the purchase money. Partition should therefore be denied.

As to the cross bill, upon a full examination of the evidence, we are satisfied that Payne has failed to prove the original contract to be such as he has alleged in his bill, and that he has not, by his proof, shown sufficient ground for cancelling or reforming the contract, or any of the subsequent papers.

The decree of partition granted in the Court below must be reversed, and both the original and the cross bill must be dismissed without prejudice.

Though Payne succeeds upon the appeal, yet as he fails upon his cross bill which called for independent, affirmative relief, and has introduced the larger share of irrelevant testimony, and is more responsible for the useless length of the record, it is but just that he should sustain a portion of the costs. Each party must therefore pay his own costs of these causes in the Court' below, and Payne must recover his costs on the appeal.

The other Justices concurred.