author: Campbell J.

text:
    The Great Western Railway Company of Canada v. Alexander Miller.

      Venue: Jurisdiction in cases of torts committed abroad. The jurisdiction of onr Courts in actions for torts committed in foreign countries is undoubted; but its exercise can only be claimed as a matter of comity; and when by the pleadings, or on tbe trial, it appears that onr tribunals are resorted to for the purpose of adjudicating upon mere personal torts, committed abroad, between persons who are all residents where the tort was committed, the Court may properly decline to proceed farther.

      Pleading: Staf/utorv damages. When the liability of a party results from the violation of a foreign statute, a party relying on it in an action for damages on such, liability, must set out the statute and the facts showing a case within its provision?, in his declaration.

      Canters of Passengers: Duties and liabilities of Railroad Companies and conductors to passengers. A carrier of passengers is not required by the common law to put out a trespasser at one place rather than at another; and while the law will not permit a person to be wantonly exposed to peril; there is no rule which requires any consideration to be shown for the mere convenience of a wrong-doer.
    A Railroad conductor represents the company in the whole management of his train; his position is similar to that of master of a ship ; and in the expulsion of a passenger from the train, he will be regarded as acting in the line of his employment. But it does not follow that the responsibility of the company is the same as the conductor’s. For aggravations that may arise out of his wantonness and malice, the employer will not stand on the same footing with the agent. — Detroit Daily Post Company v. McArthur 16 Mich. 447.

      Heard October 16 and 20.

      Decided October 26.

    Error to Wayne Circuit.
    Action on tbe case for damages occasioned by tbe expulsion of tbe plaintiff below, from the cars of tbe defendants, at a point between Chatham and Belle River in Canada. Plea, tbe general issue. A verdict was rendered for tbe plaintiff of $3,000; and tbe judgment entered thereon is brought into this court by writ of error. Tbe errors assigned are:
    1. Tbe Court erred in taking and exercising jurisdiction over tbe defendants, a foreign corporation, and in giving judgment against them in favor of a resident of Canada, a foreign province, for an alleged tort committed in such province.
    2. Tbe Court erred by subjecting tbe defendants, in an action brought and tried in Michigan, to a special liability, claimed to be created and to exist by virtue only of a statute of a foreign government, and not incident to or arising under the general duties or obligations of tbe defendants as common carriers, and not imposed upon them by the laws of the State of Michigan.
    3. The Court erred in instructing the jury that at the time of the alleged ejection of plaintiff by defendants, said defendants were subject to and bound by said provisions of said statute.

      4. The Court erred in charging the jury that “if the jury find that the plaintiff was put out of the defendants’ cars, not at any usual stopping place, or not near any dwelling house, that the plaintiff is entitled to recover, even thoTigh he had no valid ticket, and had made no valid tender of his fare.”

      Theodore Romeyn, for plaintiffs in error.
    The Railway Company were sued by Miller in the Circuit Court of Wayne County, for a tortious ejection of him by their conductor, in Canada. He was a resident of Canada. The wrong was committed in that province. The defendants were and are a foreign corporation. No contract was made in this State. None was violated here. No wrong was inflicted here. Yet the plaintiff, residing in the same sovereignty with the defendants, saw fit to sue them here for an alleged wrong committed there, and cognizable by the foreign'court.
    I. The defendants are not liable to the plaintiff in this action in this court. The plaintiff had. no cause of action in Michigan. 1. The defendants are a foreign corporation, residing in Canada, and a citizen of that province.—0. & M. R. R. Co. v. Wheeler, 1 Black, 286; Dennistown v. N. Y. & Y. H. R. R. Co., 1 Hilton, 63. 2. There is nothing in the rules of comity, or in our own legislation, requiring our courts to take cognizance of a case like the present.—Fisk v. Chicago, etc., R. R. Co., 53 Barbour; 477. 3. The rules of the Common Law do not require nor permit the exercise of jurisdiction for torts committed in a foreign jurisdiction by one non-resident on another, unless, perhaps, in the case where both parties are afterwards actually found within the jurisdiction. Here the defendants are non-residents, and, except by fiction of law, are not and never were within the State. See Mostyn v. Fabrigas; Cowper, 176; Doulson v. Matthews, 4 Term, 503,
      to show the foundation, of the rule allowing transitory actions to be brought in a foreign jurisdiction. The whole doctrine rests on fiction, and is unsound. As a matter of policy and expediency, the Courts of Michigan should not take cognizance of this class of cases.
    But if we are to be governed by the rules as to the form and locality of actions, then we say that, under our statute, this action was not maintainable, for the reason that neither party to it resided in Wayne County.—2 Comp. Laws, p. 1,187, §4,344~

    II. The Court erred in charging the jury that the defendants were liable in this State for the act of the conductor, under the circumstances of this case. The gravamen of the offense, under the charge of the Court, was the putting off of the plaintiff contrary to the Canadian statute, at an unusual place, The legal question is not complicated nor affected by any considerations growing out of special damages or hardships. It is presented nakedly and distinctly. 1. The act of Canada is perfectly explicit, and it is for the violation of this act by the conductor, that the defendants are sued. There is no pretense that defendants directed or sanctioned the tort. It was the deliberate, willful, wrongful act of its conductor. 2. The wrong consisted not in the manner of the removal under circumstances authorized by the company, but in removal at a place and under circumstances not contemplated, by them, nor recognized by the statute. The act was no more that of the defendants, than if the conductor had forced the plaintiff to leap into the river in crossing from Windsor. The authority was, to remove at a usual stopping place or near a dwelling house. For the manner of exercising this authority, we may concede that the company should be liable for the act of its agent. When the removal was made loillfully at another place,-the act is the unauthorized, willful wrong of the conductor. 3. Under these circumstances we contend— a. The conductor is liable. State v. Great Works Mill Co.,

      20 Maine, 41; State v. Ross, 2 Dutcher, 224 Hillard v. Gould, 34 N. H., 230; b. The company is not liable. Crocker v. New London etc., R. R. Co., .24 Conn., 249; Thames Steamboat Co. v. R. R. Co., 24 Conn., 40; Story on Agency §§ 452, 455, 456; McManus v. Cricket, 1 East, 106; Illinois Central R. R. Co. v. Downey, 18 Ill. 259; Philadelphia, etc., Railway v. Wilt, 4 Wharton, 143; Fox v. Northern Liberties, 3 W. & S. 103; Richmond Turnpike Co. v. Vanderbilt. 1 Hill, 480; Vanderbilt v. Richmond Turnpike Co., 2 N. Y. 479, and cases there cited. Hibbard v. New York & Erie R. R. Co., 15 N. Y. 455; Weed v. The Panama R. R. Co., 17 N. Y. 362; Meyer v. The Second Avenue R. R. Co., 8 Bosworth, 805.

    III. In no view of the case, as presented by this record, was the plaintiff entitled to recover. The defendants are not liable to him for removing him from their cars, if he intruded there, without paying or tendering his fare, at any place whatever, unless he sustained actual damages. 1. The statute of Canada is a proper regulation for the safety of passengers and the management of railroads, but it gives no right of action to any person. 2. The first three counts of the declaration aver no wrong to the plaintiff beyond the simple ejection, and no damages sustained, and there is nothing in the bill of exceptions to show any damages. 3. The theory of the charge of the- Judge is — that the plaintiff could recover for simply being put off the cars, though himself a tresspaser.
    This is not the law.—See. 2 Red. on Railways, chap. 24, § 177, and cases there cited; Hagan v. P. & W. R. R., 3 R. I.88.

      B. B. & H. M. Buffield, for defendant in error.
    The first assignment of error goes to the jurisdiction of the Court.
    The record shows that service of declaration was accepted by the Attorney of the defendants, their appearance duly entered, and a plea of the general issue put'in ; that the parties went to trial on the merits, and that in the Court below no exception or objection to the jurisdiction of the Court was ever made or intimated. The objection to jurisdiction first appears in the assignment of errors.
    I. It has long been settled by a series of authorities, both in England and in this country, that it is too late to raise a question of jurisdiction after appearance, trial and verdict.—Mendyke v. Stint, 2 Mod. Reports, 273; Mostyn v. Fabrigas, 2 Cowp. 166, 172; Cook v. Champlain Transportation Co, 1 Denio 91; Maxfield v. Scott, 17 Vt. 634; 3 Haywood 44; Varney v. Vosch, 8 Hill, S. C. 237; Bobyshall v. Oppenheimer, 4 Wash. C. C. R., 482; Barry v. Paige. 10 Gray 398; Campbell v. Wilson, 6 Texas, 379; Webb v. Goddard, 46 Maine, 505; Cahoon v. Harlow, 7 Allen, 151, Dart v. Farmer's Bk., 27 Barb., 337; Hall v. Molbey, 13 Geo., 318; Conger v. Galena R. R., 17 Wis., 477; Brown v. Webber 6 Cush. 564, 561; Loomis v. Wadhams, 8 Gray 561; Burlingame v. Cole, 13 Gray, 271; Certainly it is too late when it is first raised in this Court.—Hale v. Lawrence, 1 Zab., 714; Moulin v. Ins. Co., 4 Zab., N. J. 223; Teakle v. Gibson, 8 Md. Rep., 70; Daniels v. Street, 15 Ark., Rep. 307; Downer v. Shaw,, 22 N. H., 287; 37 N. H. 9; March v. E. R. Rd. Co., 40 N. H, 578, 582; Clyde Plk. R. Rd. Co., v. Parker, 22 Barb. 323;

    II. The Court having once obtained jurisdiction of the parties in determining the liability of the defendants in respect to the alleged wrongs done the plaintiff, could properly take into consideration any statute to which defendants were amenable, at all affecting such liability, even though it were the statute of a foreign country—Smith v. Elder 3 Johns. Rep. 113; Whitford v. Panama R. Rd., 23 N. Y. 471; Crowley v. Same, 30 Barb. 99.

    This is an aqtion ex delicto, and is transitory in its nature, and may be tried before any tribunal, whether home or foreign,, which, obtains jurisdiction over the parties; and the non-residence of either or both of the parties makes no difference, 1 Chitty Pl., 269. Lord Kaimes in Vol. 2 Principles of Equity, p. 326; De Le Vega v. Vianna, 1 Barn, and Ad. 287; Smith v. Bull, 17 Wend., 323; Walters v. Preeder, 3 Jones, (N. C.) Law R., 64; Miller v. Black, 2 Jones, (N. C.) 341; 11 Texas, Rep. 287; The N. &c. R. R. Co. v. Scholl, 16 Md. 331; Barrell v. Benjamin, 15 Mass. 354; Taunton & S. B. Turnpike v. Whiting, 9 Mass. 321; Roberts v. Knights, 7 Allen, 449.

    The exact parallel of the case at bar is decided by the following cases:

      Glen v. Hodges, 9 Johns. 67; Gardner v. Thomas. 14 Johns. 134; Johnson v. Dalton 1 Cow. 543; 18 Johns. 257; 7 Hill, 95; McIvor v. McCabe, 16 Abb. Pr. R., 319, s. c. in 26 How Pr. R.; Latourette v. Clark, 45 Barb, 327.

    “Whatever would be a justification where the offense is committed, would be a justification where the offense is tried.” Cowp., 173; It cannot be contended that the rights of the parties, as fixed by the laws of the country within whose limits the wrong was done, can be altered or varied by the locality where the action happens to be tried. For if this were so, then the rights incident to transitory, as distinguished from local actions, would cease to have auy force. Rundle v. Delaware, etc., Canal, 1 Wallace, 275; Thayer v. Brooks, 17 Ohio R. 489; Donn v. Lippman, 5 Clark & Finnell 1, 13, 14; Story on Conflict of Laws, pages 744, 745, 746, 747, 758, and note.

    III. The record does not show any such instructions to the jury by the Court, as is stated in the third assignment of errors, except as the same may be indirectly inferred from the charge of the Court, as expressed in the fourth assignment of errors. It probably is an oversight.
    IY. The ejection of the plaintiff from the cars of defendants, at a place, and in a manner forbidden by a valid and existing statute binding upon them, is sufficient to support plaintiff’s action against them for damages. C. B. & Q. R. Rd. Co., v. Parks, 18 Ill. 460; Stephen v. Smith, 29 Vt. 160; Terre Haute etc., R. Rd. Co. v. Vanatta, 21 Ill. 188; Illinois C. R. Rd. Co. v. Sutton, 42 Ill. 438; Ch. & Alton R. Rd. v. Flagg, 43 Ill.

    It will hardly be contended, either on the grounds of reason, or in the face of authority, that the conductor, and not the Company, is alone responsible for this wrongful act.

      P. & R. Railway v. Derby, 14 How. 468, 483; Lowell v. Boston, 23 Pick. 24; S. E etc., v. European, etc., 24 Eng. Law and Eq. 513; Philada. v. Wilt, 4 Wharton 143; Maclin v. London 2. Exchq., 415; Sanford v. 8th Ave. R. Rd. Co., 23 N. Y., 343; Porter v. N. Y. C. R. Rd. 34 Barb., 353; 2 Hillard on torts, 390; St. Louis etc., R. Rd. Co., v. Dolby, 19 Ill. R., 353; State v. Chovin, 7 Iowa R 207; B. & O. R. Rd. v. Blocher, 27 Md. 277; N. Orleans R. Rd. Co., v. Allbriton, 38 Miss. 242; E. Counties Railway Co. v. Brown, 6 Exchq. 314; Crocker v. N. London Railway Co., 24 Conn. Rep. 249; And this, even though the Conductor’s conduct was wilful. Redfield on Railways, 381, note 6; Weed v. Panama R. Rd. Co., 5 Duer, 193; E. & C. R. R. Co. v. Baum., 26 Ind., 70; Holmes v. Wakefield et al., 12 Allen, 580; Moore v. Fitchburg R. Rd. Co., 4 Gray, 465; Hewett v. Swift, 3 Allen, 442; Story on Oonfiict of Laws, §540 et passum.

   Campbell J.

Miller sued the Kailway Company for damages on account of his expulsion from their cars, which he averred to have been done ' at a distance from any dwelling or usual stopping place. All of the counts in the declaration alleged him to have been a passenger who had complied with all the conditions required to entitle him to be carried to end of his journey.

He stated on the trial that he then resided in Chatham, Ontario ; but in answer to an inquiry whether he was a citizen of Canada, said-he was a native of Michigan and a citizen, as he supposed.

A statute of Canada was given in evidence providing that “any passenger refusing to pay his fare, and his baggage, may, by the conductor of the train and the servants of the company, be put out of the cars at any usual stopping place, or near any dwelling house, as the conductor elects, the conductor first stopping the train, and using no unnecessary violence.”

Evidence was given and met by counter evidence, concerning the facts which would determine his right as a passenger.

The case was also, put to the jury on the claim that, even though not complying with his duties as such, he was entitled to damages for having been put off contrary to the statute, at a distance from any station or house. And on this the Court charged “that if the jury find that the plaintiff was put out of the defendants’ cars, not at any usual stopping place, or not near any dwelling house, the plaintiff is entitled to recover, even though he had no ticket, and had made no valid tender of his fare.” Error ■is assigned upon this ruling. The jury rendered a verdict of three thousand dollars against the defendants.

■ As the view we take of the. case will require a new trial, it will become necessary for us to consider all the principal questions presented, and which will be raised again unless now disposed of.

The liability for putting a person off from the cars at a'distance from any dwelling, or station, is purely statutory, and no damages can be recovered for that specific grievance, unless the statutory provision is set out and a case made out under it by the pleadings. A carrier is not required by the common law to put out a trespasser atone place rather than in another, and while the law will not permit a person to be exposed wantonly to peril, there is no rule which requires any consideration to be shown for the mere convenience of a wrong-doer. The Canadian statute was probably adopted on grounds of public policy, and to establish a general rule most likely to prevent suffering. But the privileges it confers depend entirely upon its provisions, and as we have no judicial knowledge of it, any one relying upon it must aver and prove it as a ground of recovery.

While in his special counts the plaintiff has alleged that he was expelled from the cars at a distance from any station or dwelling, he has not averred-any thing to show that the law of Canada has made this a distinct grievance, and has not set up any cause of action depending upon it in whole or in part. He has throughout placed himself on the footing of a passenger rightfully in the cars, and entitled to complain of any expulsion whatever as wrongful.

The charge complained of, authorized him to recover, although he might have been on the cars without any pretense of right, and there is nothing in the declaration to warrant it.

It was urged on the hearing that the Railroad Company could not be held liable for any wrongful expulsion under this statute, because it would be the personal wrong of the conductor in violation of law, for which he must be held to have exceeded his known agency. And the same exemption was claimed for them from liability for any expulsion, unless under circumstances where they may be supposed to have authorized it by their instructions general or special. There is, however, so far as we have seen, no authority Avhich would exempt them from some amount of responsibility for any wrongful expulsion of a passenger by a conductor. He represents them in the whole management of his train, and the power to do any serious mischief is chiefly derived from their investing him with the control of this large agency. He occupies the same position as the master of a ship, and his action in the case supposed must be regarded as done in the line of his employment.

But it does not follow that the responsibility of his employers is the same as his. For those aggravations which may arise out of his wantonness and malice we have held that the employer is not on the same footing with the agent. The subject was discussed in Detroit Daily Post Company v. McArthur, 16 Mich. R., 447. This case does not seem to have been noticed on the trial, as we infer from the amount of the verdict, and the omission of counsel to cite it.

The voluntary appearance of the defendant below renders any discussion of the subject of the venue unnecessary. There can be no doubt that the locality of the trespass does not of itself oust the jurisdiction, where the Court has lawfully obtained control over the parties. But where the parties are not residents of the United States, and the trespass was committed abroad, the right of action in our courts can only be claimed as a matter of comity, and they are not compellable to proceed in such cases. It is not to be denied that much hardship is likely to arise where a person is called upon to defend himself against a charge arising out of transactions occurring at a distance? and out of the jurisdiction. Witnesses cannot always be compelled or induced to be present at the trial, and where a knowledge of localities becomes essential it is impossible to obtain a view by the jury. Questions of foreign law may, as in this case, become important elements of decision. We think that when by the pleadings, or upon the trial, it appears that our tribunals are resorted to for the purpose of adjudicating upon mere personal torts committed abroad, between persons who are all residents where the tort was committed, the inconveniences and the danger of injustice attending tbe investigation of such controversies render it proper to decline proceeding further. The cases cited on the argument recognized the right to take this course, and we regard it as the correct one. We do not propose to lay down any rule as to other classes of cases before they arise. In the present case we think that the residence of the plaintiff below became material, and might properly be inquired into.

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

The other Justices concurred.


source: Caselaw Access Project

author: Christiancy J.

license: Public Domain

text:
    John Hanna v. The People.

      Indictment: Degrees of offenses: Conviction of a lower degree than the offense charged : Statutory classification. The rule at common law — that when an indictment charged an offense which included within it another less offense, or one of a lower degree; the defendant though acquitted of the higher offense, might be convicted of the lessis not subject, in this State, to the qualification, that upon an indictment for a felony, the defendant cannot be convicted of a misdemeanor.
    The statute of this State (Gomp. L. § 5,952) which enacts that — “ upon an indictment for an offense, consisting of different degrees, the jury may find the accused not guilty of the offense in the degree charged, and may find him guilty of any degree of such offense inferior to that charged in the indictment, or of an attempt to commit such offense’1 — is to be construed as extending to all offenses of different grades or degrees of enormity, wherever the charge for the higher -grade includes a charge for the less.
    Assaults are substantially divided by the statute into degrees; and an indictment for any of the higher grades or assaults with various degrees of aggravation, must include the inferior degree of simple assaults ; or if the higher degree is charged including a battery, the simple assault and battery are included, and the defendant may be convicted of the included offense only.

      Information unde)' the statute: Preliminary examination. It is no objection to a conviction for a misdemeanor that upon an information under the statute for a felony, that the accused had not been examined on the charge for a misdemeanor. The examination upon the transaction, claimed to constitute the higher offense, is an examination on the minor charge included in it.

      Heard October 20.

      Decided October 26.

    Error to Kent Circuit.
    The plaintiff in error was charged upon the information of the Prosecuting Attorney for Kent County, that he “with a certain piece of iron, the same being a dangerous weapon, which he, the said John Hanna, in his right, hand then and there held, feloniously did beat, bruise and wound one John Shine, with intent, in so doing then and thereby feloniously, wilfully, and of his malice aforethought, to kill and murder the said John'Shine, contrary etc. ”
    And “ that the said John Hanna, and upon one John Shine, in the peace of God and of the People of the State of Michigan then and there being, did make an assault, and did beat, choke, wound and strike him, the said John Shine, with intent, him, the said John Shine, then and there feloniously, wilfully, and of his malice aforethought, to kill and murder, contrary etc. ” To which he pleaded not guilty.
    Upon the trial, the counsel for the respondent requested the Circuit’ Judge to charge the jury : “ That if they should find the said respondent not guilty of the offense charged in said information, they must acquit him ; ” which charge the Circuit Judge refused to give and the counsel for the respondent excepted.
    The Prosecuting Attorney requested the Circuit Judge to charge the jury; “That if they should find the said respondent not guilty of the offense charged in. said information, they might find the said respondent guilty of assault and battery ;” and the Circuit Judge so charged ; to which charge the counsel of the said respondent excepted. The jury found — “Not guilty of assault with intent to kill, in manner and form as the People have in their information in this cause alleged, but guilty of assault and battery.”
    The defendant below brings the record into this Court and assigns for error:
    First — The said Circuit Judge erred in refusing to instruct the said jury, that if they should find the said respondent not guilty of the offense charged in said information, they must acquit him.
    Second — The said Circuit Judge erred in' charging and instructing said jury that if they should find the said respondent not guilty of the offense charged in said information, they might find the said respondent guilty of assault and battery.

      H. E. Thompson, for plaintiff in error.

      Dioiqht May, Attorney General, for defendant in error.
   Christiancy J.

Plaintiff in error was tried in the Circuit Court for the County of Kent, upon an information charging him with assaulting and beating, with intent to murder, one John Shine.

The verdict of the jury was not guilty of the assault with intent to kill etc., but guilty of assault and battery.

The exceptions taken on the trial raise only the question, whether under this information (which is for an offense not a felony at common law, but made so by our statute), it was competent to find the defendant guilty of a simple assault and battery ?

The general rule at common law was, that when an indictment charged an offense which included within it another less offense or one of a lower degree, the defendant though acquitted of the higher offense, might be convicted of the less.

This rule however was subject to the qualification, that upon an indictment for a felony, the defendant could not be convicted of a misdemeanor.

The reason upon which this qualification rested in England, was that upon a trial for a misdemeanor, he had certain advantages, such as the right to make a full defense by counsel, to have a copy of the indictment, and a special jury—rights not allowed when the charge was for a felony. (See 1 Bishop Cr. L. Sec. 814.; 2 Hawk. P. C. Ch. 47, Sec. 6; 1 Chitty Cr. L. 251; id. 689.) These were substantial privileges affecting the fairness of the trial itself. But .in all these respects, in every thing which pertains to the fairness of the trial, the rights of the accused are as well protected in this country on the trial for a felony, as upon a trial for a misdemeanor, and in some cases better. And for this reason, it has been held in several of the States, (New York, Vermont, New Jersey, Ohio, North Carolina, South Carolina, and Arkansas; See 1 Bish. Cr. L. Sec. 815; 1 Whart. Am. Cr. L., Sec. 400 and cases cited), that the reason upon which this qualification of the rule rested having ceased, the qualification ceased with it.

Several other States, (Massachusetts, Virginia, Pennsylvania and Tennessee), have abolished it by statute, (See Wharf. Am. Cr. Law, §§ 388, 400). And a like statute has been adopted in England, so far as relates to cases like the present, — attempts to commit a felony when the- crime charged includes an assault. 1 Vict. Ch. 85, Sec. 11.

Whether our own statute applies to this case we shall presently inquire.

But it is insisted by the plaintiff in error that there are certain advantages secured by our statutes to a defendant indicted for a misdemeanor, which he does not possess when tried upon a charge- of felony, and which, as he insists, furnish sufficient ground for adhering to the common law qualification of the general rule. The only advantages of this kind to which he refers are, first, the privilege, if the Court shall see fit to grant it, of appearing upon the trial by Attorney, without being himself personally present,— in other words the privilege of being tried in his absence, in the discretion of the Court, which has not generally been considered a privilege of a very high order, though the right to be present on the trial is a very essential right. But the statute, ( Comp. L. Sec. 6,076 ), upon, which the qualified privilege here claimed -is based, so far as it has any effect, is certainly quite as much a privilege to the prosecution as to the defendant, and cannot be considered as essential to the fairness of the trial.

Secondly, (the plaintiff urges), the privilege of making a compromise with the party injured, and upon his acknowledgment of satisfaction, of having the prosecution dismissed. But this is dependent, first, upon the consent of the party injured, and, secondly, upon the consent and discretion of the Court; and has no bearing upon the fairness of the trial, when a trial is had, which was the ground of the qualification of the rule at common law.

These narrow, qualified, and merely collateral advantages, or rather the power of the Court to permit them at its discretion, cannot, I think be considered of any great weight upon the question we are now discussing, — the right to convict of a misdemeanor on the trial of a charge for a felony including the misdemeanor, — they are, in fact, as it seems to me, fairly over balanced by considerations -of public convenience and the benefit to the defendant, of being subjected to a single prosecution and trial, instead of several, which might otherwise be required.

I am, therefore, of the opinion that the common law reasons for this special restriction of the common law rule have ceased to exist in this State; and that the restriction should cease with them, though we had no statute upon the subject.

Bait, I am also of the opinion, that the present case falls within the provisions of section sixteen of Chapter 161 of the Revised Statutes of 184=6, ( Comp. L. Sec. 5,952), which enacts “upon an indictment for any offense, consisting of different degreesj as prescribed in this title, the jury may find' the accused not guilty of the offense in the degree charged in the indictment, and may find such accused person guilty of any degree of such offense, inferior to that charged in the indictment, or of an attempt to commit such offense.”

I do not think this provision was intended to be restricted in its application to offenses divided by the statutes contained in this title, (which included all the provisions in reference to crimes), into classes expressly designated by the name of “degrees.” Thus confined, it would apply, so far as I have been able to discover, only to the single case of an indictment for murder in the first degree, and would not even include manslaughter as a lower degree of the offense, but only murder in the second degree; since murder is the only offense divided by the statute into classes expressly designated as “ degrees.” Beside, if thus restricted to the crime of murder it can apply only to that very class of cases in which it was not needed either as declaratory of, or as amending the common law; since, without the provision, the common law by the narrowest application ever adopted, had already fully provided for the case; as no one can doubt that without this provision, the common law rule, would under the statute, dividing murder into degrees, have authorized a conviction not only for murder in the second degree, but for manslaughter also, under an indictment for murder in the first degree, all these offenses being felonies included in the charge. But, if this is not clear enough in itself, the statute has put this view in the clearest possible light; by expressly providing in the next section (Sec. 3 Ch. 153 Rev. Stat. of 1846), after dividing murder into degrees, for a conviction of murder in the second degree upon a charge of murder in the first, though it is silent as to a verdict of manslaughter in such a case. If, therefore, section sixteen of Chapter 161 above quoted at length, is not to be applied to any offenses not divided into degrees, eo nomine, then it can have no application or effect whatever, and must have been inserted in the statute for no purpose or object. Such a eonstruction is inadmissible, if the provision will admit of any other.

Whatever may have been the proper construction of this provision in the-Revised Statutes of New York, where it is preceded by very different provisions, it must, I think, in the connection in which it is found in our revision, be construed as extending to all cases in which the statute has substantially, or in effect, recognized and provided for the punishment of offenses of different grades, or degrees of enormity, wherever the charge for the higher grade includes a charge for the less. In this view only, can any effect be given to it, as declaratory of, or altering the common law.

In this view of the statute the case before us comes, I think, clearly within it. The “ Title ” referred to provides for assaults of various kinds and degrees of enormity depending upon the intent with which, and the circumstances under which, the assault may have been made; as with intent to murder, (Chapter 153, Sec. 14- Comp. L. Sec. 5,784); with intent to rob or steal from the person, and being armed with a dangerous weapon, (Sec. 15); with intent to rob, or murder, being armed etc., (Sec. 16) ; to rob or steal from the person and putting in fear, without being armed etc., (Sec. 17); with intent to rob or steal, not being armed (Sec. 18) ; with intent to commit rape (Sec. 21) ; or with intent to commit any other felony — the punishment of which assault is not herein before prescribed (Sec. 28) : all the above assaults as felonies, being punishable in the State prison for periods provided respectively for each; and finally section twenty-nine provides for the punishment of simple assaults and assaults and batteries. Whatever therefore may be said of other offenses named in the statute, it seems to me, that assaults are substantially and in effect divided by the statute into degrees; and that an indictment for any of the higher grades, or assaults with various degrees of aggravation, must include the inferior degree of simple assault; or, if the higher degree is charged including a battery, as in the present case, the simple assault and battery are included, and that the defendant may be convicted of the included offense under this section.

In fact, so far as I have been informed, this section has been long and uniformly construed at the circuits, as intended to remove entirely the common law restriction of the general rule, and to authorize a conviction for any substantive offense included in the offense charged, without reference to the fact that one was a felony and the other a misdemeanor; this being the only view in which the statute was needed.

But it is further objected, that the defendant could not be prosecuted by information in this case, because he had never been examined on the charge for a misdemeanor. But this being included in the charge of the felony,, an examination upon the transaction claimed to constitute the higher offense, was an examination upon the minor charge included in it.

The judgment of the 'Circuit Court must be affirmed.

The other Justices concurred.


author: •Cooley Ch. J.

text:
    Samuel C. Browning et al. v. Edgar Howard.

      Judicial sales: Presumed to be under general laws and not under a private act: Protection of purchaser. A purchaser at a judicial sale has a right to presume that it is conducted under the provisions of the public law; and if good according to that law, he will be protected, notwithstanding the existence of a private statute, authorizing the sale, of which he had no knowledge, and the provisions of which were not regarded.

      Heard October 21.

      Decided October 26.

    Error to Wayne Circuit.
    Ejectment. The plaintiffs are the heirs at law of Francis P. Browning who died in November 1834; and they bring this action for a tract of land of which their ancestor died seized. The defendant claimed under a sale made by John Clark, the administrator of Browning, in the year 1836. It was not denied that the sale was regular under the general statutes regulating sales by administrators. But a special act was passed (December 2, 1834), by the Legislative Council “to authorize John Clark, administrator of Francis P. Browning, deceased, to sell and convey the real estate of said Browning,” in which it was provided that an inventory and an appraisal of the property should be made; that it should not be sold for an amount less than the appraisal; and that the Judge of Probate of Wayne County should endorse his consent to the sale upon the deed. The administrator’s deed offered on the trial in support of defendant’s title, not having endorsed on it the consent of the Judge of Probate to the sale, and the consideration named therein being less than the appraised value of the property conveyed, was objected to. The Court overruled the objection, and verdict and judgment were rendered for defendant. The record is now brought into this court by writ of error.

      D. 0. SoTbroolc, for plaintiffs in error.

      L. Bishop, for defendant in error.
   •Cooley Ch. J.

The Probate sale which is attacked in this case, it is conceded, would have been sufficient under the general law in force at the time the proceeding was taken, if that law was to govern it. It appears, however, that for some reason a special statute was procured, which authorized the administrator -to sell under regulations somewhat different from those which the general law prescribed. Among other things the sale was not to be made for a less sum than the appraised value. The sale actually made appears not to have equaled the appraisal. It is contended on behalf of the plaintiffs that the sale must be presumed to have been made under the special act. We think, however, that this presumption is not a just one. The special act was permissory, but did. not preclude following the general rule.

If, however, it had appeared in evidence that the administrator had attempted to sell under the special act, the sale, if sufficient under the general law, must still be sustained unless the purchaser was aware of the authority under which the proceedings were being taken. As a general rule, unquestionably, a party is bound to take notice of whatever constitutes the evidences of his title; but if a-judicial sale is being made, which is apparently good under the public law, a party is not bound at his peril to know that it is being made, not under the public law, but under a private statute of which he may be wholly ignorant. He has a right to suppose the general rule is being applied, and he is therefore entitled to all the protection which that rule would give him. If the administrator in this case assumed to proceed under the special statute, it does not appear that the purchaser was aware of that fact; and the Circuit Judge was therefore right in his ruling, whatever view we might take of the point first mentioned.

’ Judgment affirmed.

The other Justices concurred.


text:
    John P. Clark v. Edward Campau et al.

      Hiparían, rights : Boundary between adjoining owners. The 'boundary between adjoining riparian owners is to be determined, by extending a line from the boundary at the shore, perpendicularly to the general- course of the stream opposite that point. Lorman v. Benson 8 Mich. 18; Hice v. Huddiman 10 Mich. 125, recognized and approved.

      Heard October 21.

      Decided October 26.

      Case made from Wayne Circuit.
    This was an action of trespass brought in Justice’s court for trespass upon land. Plea, with notice that the title to land would come in question, was interposed, and the case certified to the Circuit Court under the statute.
    The declaration was in the usual form. The issue was tried by the Court without a jury. All the facts being stipulated, and at plaintiff’s request the Court made a special finding as follows :
    “That plaintiff is the owner in fee of Private Claim No. 583, and defendant Campau, of Private Claim No. 563 in Springwells, Wayne County, which private claims are adjoining and both of which border upon the Detroit River. That the patents from the United States for these two private claims, issued to the grantors of plaintiff and defendant Campau, respectively bear date the same day and commence and terminate their description of boundary upon- the river bank, and are silent as to any riparian ownership. That the easterly line of ‘Private Claim 563 (defendant Campau’s,) and the westerly line of Private Claim 583 (Clark’s) are parallel, and strike the river bank nearly at right angles. That “the dividing line between the two claims also runs parallel with the other side line until within three _ chains twenty-eight links of the ; river bank, when it makes an -angle of five degrees easterly, and upon Private Claim 563 of Oampau’s. That the act complained of as a trespass was done by defendant Campau and defendant of, stream Nichols under his direction, and consisted in driving piles upon the land covered by water, between the now bank and the centre of the river. That, if the dividing line between the two Private Claims ought to be projected to the thread of the stream, in its direction as it touches the river bank running out diagonally, then defendants are guilty of the 'trespass as alleged] if said line ought to be projected from the now bank, as near as may be, at right angles and parallel with the easterly line of Private Claim 563, then defendants are not guilty: the Iociís in quo lying between these two projected lines, and within the triangle formed by them and the thread of the river.”
    IJpon facts as stipulated the Court found the following conclusions of law:

      “ First. The said parties are the owners of the land under the river, in front of and adjoining their Private Claims respectively, to the thread of the stream, and entitled to every beneficial use of the same, subject to the public easement in the same.

      Second. In projecting the dividing line between these two Private Claims, it does not extend into the river in the same direction as it runs for three chains twenty-eight links before it reaches the shore; but in this' case the grants under which each party holds, being silent upon this question, should be extended, as near as possible, at right angles with the borders of the river and parallel with the other side line, so as to give' each riparian proprietor, as near as possible, the same width at the thread that he has on the border of the stream.”
    The Court found the defendants not guilty; the case is settled, signed and certified to this Court in accordance with the statute, at the request of plaintiff.

      D. G. Holbroolc, for plaintiff.

      E. M. & W. F. Gheever, for defendant.
   Campbell J.

Clark and Campau being adjoining land owners on Detroit River, tbe former claims title to certain land under water extending diagonally across Oampau’s front, upon the ground that the rights in the water are to be determined by the direction of the boundaries on land. The division line between the two runs in such a direction that Clark’s land widens , and Campau’s narrows as the lots approach the shore, and Clark claims that the lines should be extended into the water in the same direction at which they strike the shore line.

The Court below ruled in substance that the rights in the water were not in any way dependent upon the direction of the lines on land, but that the lines from the shore should be run, as near as may be, perpendicular to the course of the stream, which at this point is straight, and at right angles with the general direction of the farm lines, and parallel with the shore. We think the ruling was correct.

The right to land under water, extending from the shore toward the centre or thread of a stream has always been deemed as appurtenant to the shore itself. It has no reference whatever to the extent of the riparian owner’s possessions back from'the shore, and is the same whether those possessions consist of a deep parcel or a mere strip of shore. And this right to the covered lands in front has always been held to exclude any adjacent claimant from intercepting in any way the full extent indicated by the width at the shore, without reference to whether the tract approaches the shore at right angles or diagonally. Where the stream is straight, the water front will be bounded by lines drawn at right angles with the thread of the stream, protracted until they reach the ends of the shore line. Where the stream curves the same principle applies, and the lines running from the shore would converge or separate, according as the land lay within or without the curve. In all the cases where the ownership of submerged land or of alluvial increments, appurtenant to riparian ownership has come in question, the only elements which have ever been considered by the Courts have been the shore lines and the central line or thread of the stream, and the partition among adjoining owners has been made with reference to these, but never with any reference whatever to the direction of the boundaries or the extent of the domain on the uplands. The aim in every instance has been to secure to each owner such share as was indicated by his shore line, and not by his lands back of it.

The following cases exemplify the method resorted to, in making allotments among riparian owners, both on rivers and on other waters, in none of which has any regard been paid to the lines on land.—Emerson v. Taylor, 9 Greenleaf R. 42; Deerfield v. Arms, 17 Pick. R. 41; Rust v. Boston Mill Corp., 6 Pick. R. 158; Sparhawk v Bullard, 1 Metc. R. 95; Knight v. Wilder, 2 Cush. R. 199; Ipswich Pet'rs, 13 Pick. R. 431; Jones v. Johnston, 18 How. R. 150; and Johnston v. Jones, 1 Black Rep. 209; Banks v. Ogden, 2 Wallace R. 57; O’Donnell v. Kelsey, 10 N. Y. 412.

In Saulet v. Shepherd, 4 Wall., 502, the principle which recognizes the shore line, and not the back lands as governing, is recognized and enforced as it had been in Johnston v. Jones and Banks v. Oqden. And it in fact lies at the foundation of all the decisions on riparian rights—See also Jones v. Soulard, 24 Koto. R. 41; Seneca Nation v. Knight, 23 N. Y. 498; Steamer Magnolia v. Marshall, 39 Mississippi R., and the cases referred to in our previous decisions, Lorman v. Benson and Rice J. Ruddiman.

The judgment below is affirmed with costs.

The other Justices concurred.


text:
    In the matter of John J. Passage et al., v. The Board of School Inspectors of the Township of Williamstown.

      Meetings of School Inspectors: Notice: ^Adjom'nment. Ten days notice of the meetings of tlie Boards of School Inspectors must be given: (§2,554 Comp. L., amended by § Id, Laws of 1867, p. 75-5), and the notice must state the object of the meeting. No business inconsistent with the notice is lawful.
    Whether any adjournment is lawful except from day to day to conclude current business, quen/.

      Heard October 22.

      Decided October 26.
    Certiorari: To the Board of School Inspectors of the Township of ’Williamstown to review their proceedings relative to'the re-organization of certain school districts.

      Longyear & Seager, for relators.

      Dart & Wiley, for respondents.
   Campbell J.

The certiorari in this case brings up the proceedings of the respondents, whereby they re-organized certain school districts.

The complaint is based on alleged irregularities, in not giving legal notice of their meetings, and in adjourning the meeting for a week, the business being done at the adjourned meeting.

Notice was duly given of a meeting to be held January 30, 1869, but at what hour is not mentioned in the notice, for the specific purpose of forming a new district out of certain lands named, none of which belonged to the relators. On January 30, the Board met and changed the boundaries of two districts, not including in the change any of the lands mentioned in the notice. The Board then adjourned until February 6, on which day nine school districts were re-organized, and the lands of the relators, which were all in the Ninth district, were thrown into other and different districts.

The respondents claim they were not bound to give notice of their meetings, and that they have plenary power in in the premises. We think this is not so. By the law as it stood prior to the enactment of the statute creating County Superintendents, it was provided by Section 91, of the Primary School law, that whenever the Board met for the purpose of altering school districts, they should cause the like notice to be given as was required for meetings to examine teachers.—1 Comp. L. § 2,334. This clearly required the notice to show the object of the meeting. The statute just referred to repealed the laws requiring teachers to be examined by the Board, and it became necessary, therefore, to amend Section 91, which was done by providing that the “Township clerk shall give at least ten days public notice of any meeting of the Board,, by posting such notice in three public places in the township.”—L. 1867, p. 79. This was the same notice previously required, and no change was made in its character. The repeal of other sections had made this new enactment necessary to supply the omission.

The notice actually given was inconsistent with the business done at both meetings, and no one reading it could have supposed the Board would have attempted any such proceeding as is shown by their return. Belators could not, if they had seen the notice, have anticipated any action which could have affected their interests.

It may be doubted whether under the statute any adjournment except from day to day, to conclude current business is lawful. But without deciding the question we are satisfied that no business inconsistent with the notice could lawfully be done at either meeting.

The proceedings of the Board in re-organizing the districts were unlawful and must be quashed.

The other Justices concurred.


text:
    In the matter of Merritt Andress v. The Board of of School Inspectors of the Township of Williamstown.

      School Inspectors: Power to change School House sites : Notice: Notice of a meeting of the Board of School Inspectors to change a school house site is necessary. {Passage v. School Inspectors of Williamstown, supra p. 3S0.)

    The power of School Inspectors to change a school house site, upon the written request of a majority of qualified voters of the district, is limited to cases where the site has been fixed by the School Inspectors because the inhabitants were unable to agree upon a site.

      Heard October 22.

      Decided October 26.

    Certiorari: To the Board of Scfiool Inspectors of the Township of Williamstown to review their proceedings in changing the site of a school house.

      Longyear é Seager, for relators.

      Dart & Wiley, for respondents.
   Campbell J.

The complaint made in this cause is that the respondents without any public notice, met and removed a school house site. In their return they admit this and say they acted on the request in writing of a majority of the voters in the district.

In the matter of John J. Passage and others v. the same .respondents, just decided, we'held that notice was necessary to making a meeting valid. But the other question is material and we therefore proceed to dispose of it to prevent further irregularities.

The location and change of sites for school houses must usually be made by a vote of two thirds of the voters present at a district meeting. 1 G. L. § 2,262. The reason for this is obvious, as all such votes may create a burden on the district, and it is proper that the ‘people should have a voice in such matters. It is only when the inhabitants cannot agree in establishing any site at all, that the inspectors are allowed to fix one. And any site which the inspectors have thus adopted may be changed by them on the written request of a majority of the qualified voters of the district. § 2,268 as amended by laws of 1861, p. 286. There is no power whatever to interfere with what has been agreed upon by the people themselves.

The whole action of the Board was beyond their jurisdiction and must be quashed.

The other Justices ooncurred.


text:
    James Arnold v. Sarah S. Thompson adm’x, etc.

      Justices Judgment; Docketed in the Circuit Court: Row enforced : Statute of Umita* tions : Deceased judgment debtos\ A judgment rendered by a Justice of the Peace duly certified to, and docketed in the Circuit Court, has the same effect as a judgment rendered in the Circuit Court*Davison v. EUioit, 9 Mich., 252; and is to be enforced, discharged or cancelled, and is affected by the statute of limitations, in the same way.
    The estate of a deceased judgment debtor has no better defense to an action on the judgment, or proceedings to collect it, than he would have had, if he had liyed.

      Heard October 23.

      Decided October 26.

    Case made from Kalamazoo County.
    This was an action brought into the Circuit Court for the County of Kalamazoo by appeal from the decision of the Commissioners appointed by the Probate Court for that county, to receive, examine and adjust all claims and damages against the estate of James F. Thompson deceased.
    The following facts were found by the Court:
    "That on the 10th day of October, A. D., 1859, James Arnold, survivor of James Arnold and William Ackley, for the use and benefit of Hiram Arnold, recovered a judgment against said James F. Thompson, before Lewis Mosher, a Justice of the Peace of the county of Calhoun, in the State of Michigan, for the sum of one hundred and eighteen dollars and eighty-eight cents, damages, and three dollars and ninety-four cents, costs of suit, and that said Justice had jurisdiction and authority to render the same; that an execution was issued on said judgment, and returned unsatisfied in whole; that after the return of said execution and on the first day of November, 1861, a transcript of said judgment and all of the proceedings had before said Justice, in said cause, and properly certified, and together with an affidavit showing there was due the plaintiff, on said judgment the sum of one hundred and thirty-seven dollars and twenty cents, was made and filed in the office of the Clerk of the Circuit Court for the County of Calhoun, and on the same day judgment was entered and docketed by the clerk of said Circuit Court, and in compliance with, and as provided by sections 134, 135 and 136 of chapter 117 of the Compiled Laws of the State of Michigan and that said judgment has not been satisfied; that said James F. Thompson died intestate, in the county of Kalamazoo, on or about the first day of September, A. D., 1867; that Sarah S. Thompson was thereafter duly appointed by the Probate Conrt of the county of Kalamazoo administratrix of the estate of said decedent; that in the settlement of the estate of decedent, Commissioners were appointed by said Probate Court to receive, examine and adjust claims against the estate of said deceased; that a claim was duly presented by said appellant to said Commissioners for the sum of two hundred dolldirs claimed to be due him from said decedent on said judgment, so entered and docketed; that said Commissioners decided to disallow said claim, and so report to said Probate Court; that by said stipulation it was agreed that, if judgment be rendered in favor of said appellant, it should be for the sum of one hundred and thirty-seven dollars and twenty cents, and interest on the same from November 1st, A. D., 1861, and five dollars ■and fifty cents costs incurred since the rendition of said judgment, and prior to said appeal, together with costs to be taxed in the Circuit Court; that if judgment should be agamst said appellant, it should be for costs to be taxed.”
    On the trial of the cause the counsel for defendant insisted that no judgment could be rendered upon the case made by the proofs, and the statement of the facts contained therein, for the reason that appellant’s right of action was barred by the statute of limitations.
    The .Court rendered a judgment for the claimant and appellant for the sum of $206,32, which comes before this Court by “ case made ” under the statute.

      Henry G. Briggs, for claimant and appellant.

      G. A. Thompson Jr., for defendant and appellee.
   Campbell J.

The appellant presented a claim against the estate of James F. Thompson, deceased, based upon a judgment originally rendered by a Justice of the Peace more than six years before the deatli of the intestate, but docketed upon a transcript by the clerk of the Circuit Court of the county where it was rendered, within the six years. The claim was rejected by the Commissioners, as barred by the lapse of time, but allowed upon appeal by the Circuit Court.

The statute of limitations bars an action on a Justice’s judgment in six years. But under our statutes the entry upon a transcript is expressly declared to give the judgment the same effect as a judgment rendered in the Circuit Court, so that it is to be enforced, discharged or can-celled in the same way. We held in Davison v. Elliott, 9 Mich., R. 252, that the effect of such a transcript and docketing was so complete, that the Circuit Court could not allow an appeal from the judgment of the Justice although the power to grant such appeals from Justices’ judgments is given in the broadest terms. If the right of the judgment creditor is lost upon such a judgment before it would be lost upon an ordinary Circuit Court judgment, it is manifest that the statute which, declares their effect to be the same has no meaning. And if the claim was in a condition to be enforced at all by legal proceedings against Thompson if he had lived, it cannot have any less efficacy because of his death. His estate has no better defense than he would have had himself.

It is not claimed that it could not have been enforced, had it been an original judgment in a Court of record. If so, it stands in the same position under the statute.

The judgment of the Circuit Court was correct and should be affirmed with costs.

The other Justices concurred.


author: Graves J.

text:
    Augustus W. Newell v. The Great Western Railway Company of Canada.

      Process: Service on a non-resident corporation. The service of a declaration as commencement of suit by a non-resident, against a corporation created by a foreign government, the cause of action arising within the jurisdiction of such government, upon an officer of the corporation, then being casually within this State, but not here in the performance of the duties of his office, nor authorized, in any way, by the corporation to submit to such service, confers no jurisdiction.

      Heard October 23.

      Decided October 26.

    ^Error to Wayne Circuit.
    This is an action on the case commenced by Augustus W. Newell against The Great Western Railway Company of Canada, in the Circuit Court for the County of Wayne, to recover damages for his eviction from the cars of the defendants, in Canada.

      It was commenced by declaration, which contains four counts:
    The first count avers that the defendants are a corporation created by and existing under the laws of Canada, and that the railway of the defendants reaches from the Niagara river to the Detroit river, opposite to Detroit:— That the Michigan Central Company’s road reaches from Detroit to Chicago, in Illinois : — That both are connecting lines for carrying goods and passengers, and mutually receive the price of freight over the two lines, and each selling and giving tickets for both lines : — That the plaintiff bought at Chicago a ticket authorizing him to travel from Chicago to Detroit over the Michigan Central, and thence from Detroit to the Suspension Bridge, over the road of the defendants ¡ — That the defendants, after carrying him from Windsor to Ingersoll, in Canada, refused to carry him further, and removed him from their cars.
    The second count avers that the defendants, being such Canadian corporation, are authorized by the laws of Canada, and permitted by the laws of Michigan to carry passengers from Detroit to Suspension Bridge over the Niagara river: — It sets forth a contract, made at Detroit, to convey the plaintiff from Windsor, opposite Detroit, to Suspension Bridge, and its violation at Ingersoll, in Canada, after being carried about half the distance.
    The third count avers the corporate existence of the defendants in Canada, and their authority to carry passengers from the Detroit river to the Niagara river; their ’ undertaking, at Windsor, to carry the plaintiff from Windsor to Supension Bridge, and their violation of it in Canada.
    The fourth count is similar, except that it is more specific in its averments of the breach.
    A copy of the declaration, and of the rule to plead endorsed thereon was served by delivery to one Joseph Price, the treasurer of the defendant, in the city of Detroit.

      The sheriff’s return is as follows:

      “ State oe Michigan, County of Wayne, ss. I hereby certify and return that on the first day of September, 1869, I served the declaration, of which the within is a copy, on the defendant named . in said declaration by delivering to Joseph Price, the treasurer of the defendant, together with a true copy of the notice to appear and plead hereon endorsed, in said County of Wayne.”
    The defendants specially appeared on the second day of September, and filed a plea in abatement, with a notice endorsed thereon of such special appearance. [The plea is set forth in the opinion of the Court.]
    The plaintiff demurred to the plea: on the argument the demurrer was overruled and judgment entered for the defendants, which judgment the plaintiff brings into this Court by writ of error.

      Hal. E. McNeil, for plaintiff in error.
    I. It sufficiently appears that the defendants in this suit are permitted to transact, and do transact business in the State of Michigan. Their line of road connects with that of the Michigan Central, and the second count of the declaration avers a contract made at Detroit.
    II. It is contrary to ¡Dublic policy to allow them thus to transact business and make contracts, and to sue in our courts, without being subject to the jurisdiction of those
    courts when they are sued for a violation of such contracts.—Panic of Augusta v. Earle, 13 Peters, 519.

    Without citing the cases at length in this matter, the court is referred to the summary of them in Angell & Ames on Corporations, §§402 to 407, and to Moulin v. Insurance Co., 4 Zabriskie, 222; March v. Eastern R. R. Co., 40 New Hampshire, 548.

    III. But we insist that the service of the process in this case was valid under the statute, and that there is no distinction in this respect between a native and a foreign corporation. — 2 Comp- B. 1,289 § 4,835.

      Theo. Romeyn, for defendants in error.
    The main inquiry is, whether a foreign corporation can be compelled to defend themselves in the courts of Michigan, on a claim for unliquidated damages, for the violation of a contract made with a citizen of another State, to be performed in Canada, and violated in that province.
    I. The provisions in the Compiled Laws of Michigan (§4,835) are not applicable to suits commenced against foreign corporations.
    To make them applicable would be to introduce an anomalous and unexampled course of procedure, and would involve a construction which the court will not adopt unless compelled to do so by the terms of the statute. The terms of the statute do not require such construction, and other statutory provisions are opposed to it.—Comp. L. §§ 4,743, 4,841, 8,701, 4,846.

    II. It was competent for the defendants, without waiving or weakening their rights in other respects, to appear (as they have done) specially, and for the sole purpose of objecting to the jurisdiction.—Wright v. Boynton, 37 N H. 9; Cunningham v. Goelet, 4 Denio, 71.

    III. The defendants are a foreign corporation, permitted by comity to transact business here, but in fact constituting a citizen of another sovereignty, and, in legal contemplation, residing there.—Ohio & Miss. R. R. Co. v. Wheeler, 1 Black, (U. S.), 286, and cases hereafter cited.

    IY. The plaintiff in this case is' a non-resident. The second count, (which states the case most strongly for him), avers a contract made at Detroit, but to be performed in Canada, and that it was there broken. There is nothing in comity which requires our courts to take cognizance of an action brought here for such violation by a non-resident plaintiff.
    Y. An officer of the corporation coming here on his own and not on the company’s business, and found accidentally here, does not represent the company in an official capacity, and service on him does not compel the company to appear generally and answer to the merits in a case like this.
    YI. We distinguish this case from that of a corporation acting in a State foreign to its creation, under a law of that State which recognizes its existence for the purposes, of making contracts there and being sued upon them. And from cases where a corporation, created by a State, sees fit to establish a place of business in another State, and to station its officers there with authority to do or to receive on their behalf. And from a case where the contract is made in Michigan with a citizen of this State. Or where it is made elsewhere to be performed here, and is violated here. The present case, on the conceded facts, involves none of these elements, as we have shown. Neither is the claim such that it could have been sued for by attachment.
    We rely, among others, on the following cases and the authorities cited in them:

      Aikin v. W. R. R. Corp., 20 N. Y. 370-376; Lafayette Ins. Co. v. French, 18 How. 404, 408; Matter of McQueen, 16 Johns. 6; Peckham v. North Parish, 16 Pick. 274, 286; March v. Eastern R. R. Co., 40 N. H. 548, 577; Moulin v. Insurance Co., 4 Zab. 222; Gardner v. Thomas, 14 Johns. 137; Congar v. Galena R. R., 17 Wis. 477.

   Graves J.

The plaintiff in error filed a declaration in the Court below against the defendants in error, and caused a copy to be served as the commencement of suit, in the County of Wayne, in this State, by a deputy of the sheriff of such county on one Joseph Price, who was stated in the certificate of'service made by the officer to have been the Treasurer of the company.

The declaration after averring that the defendants in error were a Canadian corporation owning and operating a line of railroad from Suspension Bridge in Canada to the Detroit river at Windsor, opposite Detroit, and carrying passengers in connection with the Michigan Central Railroad Company upon tickets sold by such 'companies respectively ; proceeds to allege in different counts a contract with the plaintiff in error, by which the company agreed to carry him over their road in Canada, and their violation of such engagement by removing him from their cars at Ingersoll. The first count stated that Newell purchased his ticket at Chicago ; the second that he made his contract for carriage at Detroit; a,nd the third and fourth that he made it at Windsor.

The company pleaded to the jurisdiction of the Circuit Court; and to that plea the plaintiff in error interposed a general demurrer; on which judgment passed for the former.

The plaintiff below now brings error and claims that the demurrer was well taken.

The question to be determined is, whether the service of the declaration on Joseph Price, was sufficient to give the Circuit Court jurisdiction over this foreign corporation, under the circumstances presented by this record.

Since the plea raises the question to be decided, and the facts contained in it are admitted by the demurrer, our decision will perhaps be better understood if we quote its averments, which are as follows: — “ And the said defendants, by Theodore Romeyn, their attorney (employed and appearing only for the purpose of objecting to the jurisdiction of this Court in the premises, and not appearing generally) come and say that they were and are a foreign corporation, created by and existing under, the laws of the province of Ontario, in the Dominion of Canada, (formerly the province of Upper Canada), and under the laws of Great Britian, and not under the laws of the State of Michigan. And these defendants further say that no original writ of summons has been served on them in this suit in this State, nor has any declaration, or other process, or legal notice of this suit, been served on them in this State.

“ And they further say that they have no officer, nor agent, nor attorney, nor counsel in the State of Michigan authorized to receive service of legal process, or to appear for them in legal proceedings in the said Circuit • Court for the County of Wayne, nor in any other court of said State, without their special direction and authorization. And these defendants further say that neither their presiding officer, nor their cashier, nor secretary, nor treasurer, nor any other of their officers, reside in the State of Michigan, nor have any of the said officers any office or place of business there.

“ And these defendants further say that they have not authorized any agent, officer, attorney, or counsellor to appear for them in this suit, except for the special purpose of objecting to the jurisdiction of this Court.

“ And these defendants further say that the said Joseph Price, on whom the declaration in this case was served, as appears by the return of the sheriff in this ease, was not at the time of such service within the State of Michigan on official business, for these defendants, nor in an official character as the officer of these defendants, nor otherwise than casually and accidentally, and not as representing these defendants.

“And they further say that he was not then and there authorized to represent them as an officer, or otherwise, nor to receive service of legal process.

“ And these defendants further say that the plaintiff in this action was, at the time of the commencement of this action, and for a long time theretofore had been a citizen of another State than Michigan, and that he never was a citizen or resident of Michigan.”

It is contended for the plaintiff in error, that public policy and natural justice require us to hold, that as the defendants do business and make contracts in this State, they should be amenable to process from our courts and subject to our jurisdiction when prosecuted for a violation of such of their contracts as are made here; but the counsel for defendants insist that the company are simply permitted by comity to transact business here, and that no necessity or substantial reason is found in the circumstance that they are so permitted, for requiring our courts to assert a jurisdiction against them, when as in this case the plaintiff is neither a citizen or resident, or has ever been, and the injury complained of was actually done abroad.

We think, however, that the disposition of this case does not depend upon any question of comity, and we therefore decline to enter into that subject; and proceed to notice the point upon which our determination will rest.

The plaintiff's counsel, in order to support the process and maintain the jurisdiction in this case, contended that the service was authorized by §4,835 Comp. Laws, which reads as follows: — “ Suits against corporations may be commenced by original writ of summons, or by declaration, in the same manner that personal actions may be commenced against individuals, and such writ, or a copy of such declaration, in any suit against a corporation may be served on the presiding officer, the cashier, the secretary, or the treasurer thereof; or if there be no such officer, or none can be found, such service may made on such other officer or member of such corporation, or in such other manner, as the Court in which the suit is brought may direct.”

The counsel for the company, on the contrary, urged that this statute was inapplicable to foreign corporations; but if considered to apply to them, that then the service made in this instance was not a compliance with the statute when properly construed.

As we do not think it necessary to decide whether this law is altogether inapplicable to foreign corporations under all circumstances, we shall not discuss that question; but shall assume, for the present purpose, that the provision cited may be resorted to in some cases against foreign corporations, and proceed to determine whether it covers and supports this case.

The facts contained in the plea, and admitted by the demurrer, exclude all implication and argument that the company or any of its officers had any office or place -of business in the State, or that any of the officers resided here, and likewise exclude all inference that Joseph Price wlien served with the declaration, was in the State in his capacity of treasurer. The corporate entity could by no possibility enter the State, and it could do nothing more in that direction, than to cause itself to be represented here by its officers or agents. Such representation, would, however, necessarily imply something more than the mere presence here of a person possessing, when in Canada, the relation to the company of officer or agent. To involve the representation of the company here, the supposed representative would have to hold or enjoy in this State, an actual present official or representative status. He would be required to be here as an agent or officer of the corporation, and not as an isolated individual. If he should drop the official or representative character at the frontier, if he should bring that character no further than the territorial boundary of the government to whose laws the corporate body itself, and consequently the official positions of its officers also, would be constantly indebted for existence, it could not with propriety be maintained that he continued to possess such character by force of our statute.

Admitting, therefore, for the purpose of this suit, that in given cases the foreign corporation would be bound by service on its Treasurer in Michigan, this could only be so when the Treasurer, the then official, the officer then in a manner impersonating the company should he served. Joseph Price was not here as the treasurer of the defendants. He did not then represent them. His act in coming was not the act of the company, nor was his remaining the business or act of any besides himself. He had no principal and he was not an agent. He had no official status or representative character in this State.

In early times a corporation could only be compelled to answer in an action at law by a distringas against the goods and chattels, and could only appear by attorney appointed under its common seal; and if it had neither land nor goods, it was impossible to bring the corporate body into a Court of law or equity. The great increase of these artificial beings and the extent and variety of their operations, however, demonstrated the neccessity for some more direct and efficient method of procedure against them, and the law makers of more recent times have accordingly deviséd various expedients to supply the demonstrated want. The provision quoted from our statute is one of them. But the Legislature, in prescribing the simple and expeditious ajs well as direct proceeding there authorized, could never have intended that the mere casual or accidental presence within the State, of a person holding a corporate office in a body owing its existence exclusively to the laws of a foreign government, and maintaining all its organisms and corporate machinery in the territory of such government, should be liable to service of judicial process here, at the instance of a citizen and resident of another State or country, and upon a cause of action arising abroad, in order to subject the corporation to the jurisdiction of our Courts, its property and rights to the dominion of our laws, and to make our tribunals, main-tamed by the people of Michigan, the arbiters of differences in which our citizens have no interest.

To conclude otherwise, would sanction a construction of the statute which would make the remedy marked out by it lead to greater evils than advantages,-and turn a well meant provision into an instrument of mischief.

Entertaining this view, I think the service on Mr. Price was not, within the meaning of the statute, a service on the treasurer of the defendants, and that the judgment of the Court below was correct and should be affirmed with costs.

The other Justices concurred.


author: Cooley Ch. J.

text:
    Peter Wright v. Charles P. Russell et al.

      Justice's docket: Presumption of regularity. Where a Justice’s docket shows that a defendant appeared for the purpose of objecting to the jurisdiction, and that the Justice proceeded to the hearing of the case on the merits, such action is equivalent to a decision of the motion.

      Justices' judgments: Special appeals. A party talcing a special appeal from the judgment of a Justice of the Peace under § 3,836 Comp. Laws is not confined in the appellate court to objections actually made before the justice; it is sufficient if his objections be set forth in the affidavit. If the objection be one that goes to the jurisdiction, a defendant is not obliged to appear before the Justice to make it. It is as competent to bring it before the Circuit Court by special appeal as by certiorari. ^

      Justices' Courts: Proceedings by attachment. It is error for a Justice of the Peace to render judgment in an attachment suit within thirty days from the return day of the process, in a case where the defendant was not personally served and did not appear and request a trial. An appearance specially, to object to the jurisdiction, is not such an appearance as will authorize the Justice to proceed to judgment before the expiration of the thirty days.

      Heard October 28.

      Decided October 26.

    Error to Kalamazoo Circuit.
    This cause was brought into the Circuit Court for the County of Kalamazoo by special appeal from the judgment of a Justice of the Peace. The objections to the proceeding before the Justice, specially alleged in the affidavit are stated thus: “and further the deponent says the said defendants did not appear in said cause, and that there was no personal service of the process therein on either of said defendants, and that said suit was commenced by attachment and said judgment was rendered before the expiration of 30 days from the return day of such attachment, •and that there was no return showing a legal service.”
    The Justice certifies by a transcript from his docket that “the suit was commenced by an attachment March 30, 1867, returnable the 9th day of April, in which the plaintiff complains of the defendants in a plea of trespass on the case. J. L. Hawes appears specially for defendants for the purpose of moving the Court to dismiss the writ of attachment: 1. The affidavit is not sufficient to authorize the issuing of said writ. 2. There is no return showing a proper service on either defendant, no property inventory returned. The cause was adjourned to the 19th of April at one o’clock in the afternoon.
    “19th. The plaintiff appeared and no defendant, and after hearing the testimony of the plaintiff, judgment was rendered in favor of the plaintiff and against the defendants for the sum of two hundred and forty-three dollars and iorty-three cents damages, and six dollars costs of suit and in response to an order of the Court for a further return — “ that there was no appearance in said cause before me by either of said defendants, but Charles P. Russell was here on the return day but took no part in the cause. J. L. Hawes appeared specially for the defendants on the return day and answered when the cause was called.”
    The Circuit Court reversed the judgment rendered by the Justice, and the cause comes before this Court by writ of error.

      8. Stafford and H. G. Briggs, for plaintiff in error.

      J. L. Hawes, for defendants in error.
   Cooley Ch. J.

The plaintiff prosecuted the defendants before a Justice of the Peace, commencing his suit by attachment. The process was not personally served, and on the return day the defendants appeared specially by attorney for the purpose of moving the Court to dismiss the writ for want of a proper affidavit, and also because of defective service and return.

It is not distinctly stated in the record that this motion was made, or if it was, what decision was made upon it. It appears, however, that the Justice continued the case for ten days, and on the adjourned day the defendants not appearing, he rendered judgment against them for an amount considerably larger than the plaintiff had claimed in his affidayit. The defendants thereupon appealed specially, assigning as grounds of error in their affidavit “that said defendants did not appear in said cause, and that there was no personal service of process therein on either of the said defendants, and that said suit was commenced by attachment, and said judgment was rendered before the expiration of thirty days from the return day of such attachment, and that there was no return showing a legal service.” Upon these objections the Circuit Court reversed the judgment.

The plaintiff in error insists that the affidavit made out no case for a special appeal, and that consequently the Circuit Court had no power to reverse the judgment, but should have treated it as a general appeal, and allowed the plaintiff to go to a trial on the merits. The particular objection is, that it does not appear, either by the affidavit for the appeal, or by the return thereto, that any objection was made by the defendant before the Justice or any decision by him, and consequently there was nothing to bring up by special appeal under the statute applicable to that subject.

The statute — Comp. L., § 8,886 — provides that “incase there shall be any objection to the process, pleadings or other proceedings, and the decision of the Justice thereon, which would not be allowed to be made on the trial of the appeal, the same may be set forth specifically in the affidavit.”

The plaintiff construes this statute to permit those objections only to be brought up in this mode which were actually made before the Justice and passed upon by him. If this were the true construction, we should still think the affidavit sufficient in the present case. The record shows that defendants appeared before the Justice for the sole purpose of making certain objections to the jurisdiction. It does not state that the motion was made, but this, we think, is fairly inferable. "We must view the entries of proceedings of Justices of the Peace with more liberality than those of Courts of Eecord, and cannot reasonably demand that accurate statement of the several steps in a cause, which is supposed to be found in the journals of the higher courts.

The statement that the defendants appeared for the purpose of making a particular motion, is idle unless we are to understand that that motion was actually made by them. We think that is what was meant by the Justice by his entry. And we think also that when he disregarded the motion and proceeded to a hearing of the cause, that action was equivalent to a decision that the motion was not well founded.

But we do not understand the statute as confining the party taking a special appeal to the objections actually made before the Justice. The statute says, “if there shall be any objection,” etc., “which would not be allowed to be made on the trial of the appeal,” it may be taken in this mode. We understand this to mean only that the party may set forth in his affidavit any such objection which may exist; and this whether he made it before the Justice or not. If the objection is one which goes to the jurisdiction, a defendant is not obliged to appear before the Justice for the purpose of making it, and it is as competent for him to bring it before the Circuit Court by special appeal, as by certiorari. We think such a case is clearly within both the words of the statute and its intention.

Assuming the appeal to have been properly taken as a special appeal, the question still remains, whether the Circuit Court was correct in its decision upon the question of jurisdiction. The particular objection to the action of the Justice was, that he rendered judgment in an attachment case, where personal service was not had, before the expiration of thirty days from the return day of the writ.

The statute — Comp. L. § 3,685 — provides that “if the attachment shall not be personally served upon any of the defendants, and none of the defendants shall appear on the return day thereof, the Justice shall continue the cause for not less than thirty and not exceeding ninety days, and in such case no hearing shall be had or judgment rendered thereon, until the expiration of that time, unless the defendant shall sooner appear and request a trial; in which case the Justice shall appoint a day for the trial of such suit, and cause notice thereof to be given to the plaintiff.”

As there was no personal service, and judgment was actually rendered ten days from the return day, there can be no ground upon which the judgment can be sustained, unless we hold the appearance of the defendants by attorney, for the purpose of objecting to the jurisdiction, as such an appearance as this statute contemplates. But it is very certain, we think, that we cannot do this. The statute means ■ evidently a general appearance for the purposes of a trial, — such an one as would waive a want of proper service of process — and not a special appearance .to object to the jurisdiction to try. We think the ruling of the Circuit Court was correct in this particular, and that the judgment must be affirmed with costs.

The other Justices concurred.


author: Tub Court

text:
    The People ex rel. William S. Turck v. James K. Wright.

      Board of Supervisors: Accounts’ against townships. Boards of Supervisors have no general power to establish claims In favor of the county against townships.

      Heard and decided October 26.

    Application for mandamus.
    William S, Turck, treasurer of Gratiot County, presents an affidavit alleging an .indebtedness to the county from the township of Pine Eiver; — the appointment of committees on behalf of the county and the township to ascertain the amount of the indebtedness; — that the amount was ascertained and a statement of it delivered to the Supervisor of the township for assessment and collection ;— that the Supervisor informed the deponent that he would place the amount on the assessment roll for collection; but that he had refused to do it; — and that the same had never been collected and paid. The deponent further stated that at the time when' the amount of the indebtedness was ascertained it was $638 25, and that at the time of this application it was $697 42. On this state of facts the applicant asks that an alternative mandamus issue to James K. Wright, the Supervisor of Pine Eiver to show cause why a peremptory mandamus should not issue “to compel him to spread the amount of said indebtedness upon the assessment roll of 1869.”
    Counter affidavits were filed by the respondent denying the material allegations contained in the affidavit of the County Treasurer.

      A. J. Utley, for the motion.

      Hayes é Wright, contra.
   Tub Court

denied, the motion on the ground, that the Boards of Supervisors have no general power to establish claims in favor of the county against the townships ; and there was nothing in the papers showing that this claim was within their jurisdiction.


author: Per Curiam.

text:
    John Napman v. The People.

      Evidence; 'Detroit City Ordinances: Sow proved. Tlie charter of the City of Detroit having provided that the printed volume of city ordinances shall be evidence in all courts, places them, as to all suits brought for the violation of them on the same footing with statutes, so far as relates to the method of proving their contents.

      Complaint for the violation of a City Ordinance: Defective statement of offense. A complaint charging a person, as an “ omnibus agent”, with conduct forbidden to an omnibus agent when acting as a porter or runner for a hotel; the complaint not averring that the defendant was then acting in such capacity, is too defective to support a conviction.

      Arrangements between Railroad and Omnibus Companies for the delivery of passengers in cities : Municipal interference. Arrangements made by Railroad Companies with Omnibus Companies, for the delivery of passengers, and their baggage, not unlawful in themselves, and which are made in their own cars, or on their own premises, are exempt from municipal inteference; and city ordinances, so far as they attempt such interference, are invalid.

      Heard and decided October 27.

    Certiorari to tlie Recorder’s Court of the City of Detroit.
    John Napman was charged before the Recorder’s Court of the City of Detroit on the complaint of Patrick Keenan “that at the City of Detroit, aforesaid, on the seventeenth day of April, A. D. one thousand eight hundred and sixty-eight, within the corporate limits of said city, one John Napman, a duly licensed omnibus agent, on the arrival of railroad ears in the city of Detroit, did then and there unlawfully and wilfully approach within twenty feet of the depot, when said cars had stopped running, within fifteen minutes thereafter, said John Napman, omnibus agent as aforesaid, not being requested by any person to remove any trunk or other baggage from said depot, to the evil example of all others in like case offending, and contrary to the ordinances of said city of Detroit, in such case made and provided. — (Sec. 8, Gimp. 88, title 12, p. 190 of Rev. Ord. of 1868.)

    Section eight, of chapter eighty-eight, entitled “ Of Porters and Runners” is in the following words:
    “No porter, runner, hackmen, draymen, city express men, omnibus agent, omnibus driver, driver of baggage, or other persons acting as-porters or runners for hotels, so licensed as aforesaid, shall, on the arrival of any steamboat, or railroad cars in the city of Detroit, for a period of fifteen minutes thereafter, go upon or approach within twenty feet of the wharf or depot where such steamboat or railroad cars have made fast or stopped running, or are about to make fast or stop running, unless such porter, runner, hackmen, draymen, city expressmen, omnibus agent, omnibus driver, or driver of baggage, be requested by a passenger to remove some trunk or other baggage from said wharf or depot, in which case it shall be lawful to go near, in or upon such steamboat or depot for such purpose, under a penalty not to exceed five dollars, in the discretion of the Court, and costs of prosecution, for every such offense.”
    The Recorder before whom the cause was tried certifies his finding of the facts :
    “On the trial of this case all objection to the form of the complaint was waived; and it was admitted that the defendant, at the time mentioned in the complaint, was a licensed omnibus driver.

      “Besides the Omnibus Company, with its drivers and agents, there are in the City of Detroit, many haclcmen, city express men, porters and runners for hotels. To permit them all to go into the railroad depots immediately upon the arrival of trains to offer their services and solicit patronage, would naturally create great confusion and bewilderment, and be very annoying, embarrassing and harrassing to passengers. The Ordinances under which this complaint is made, having a tendency to prevent these evils, I find to be, (if, and so far as it is a question of fact), reasonable.
    “By an agreement between the Detroit & Milwaukee Railroad Company and the Omnibus Company, the drivers and agents of the latter, and they alone are authorized and permitted to go within the depot of the former, immediately on the arrival of any train, to invite passengers to ride in their omnibusses. This agreement is attended with no inconvenience or annoyance to passengers, but very often, if not generally, promotes their comfort by relieving them, from the embarrassment of selecting one out of many means of conveyance that may be offered, and I find the regulation of the railroad company, in pursuance of said 'agreement, (if, and so far as it is a question of fact), reasonable.
    “ The defendant is a driver of the Omnibus Company, and as such, under the above agreement, within fifteen minutes after the arrival of a train at the Milwaukee Depot, on the day mentioned in the complaint, entered the depot to, and did, solicit passengers to take one of the vehicles of his Company. And it is for this act that he is proceeded against in this complaint.
    “ And upon these facts, as a conclusion of law, I further find the defendant guilty as charged in the complaint on file against him.
    . “ GEORGE S. SWIFT,
    “Judge of the Recorder’s Court.”

      And the judgment upon the finding is now brought into this Court by certiorari.

      J. L. Ohipman and G. V. JST. Lothrop, for plaintiff in error.

      J. P. Whittemore and Moore & Griffin, for defendant in error.
   Per Curiam.

Inasmuch as the charter of Detroit provides that the printed volumes of ordinances shall be evidence in all courts, we think that in all suits brought for the violation of them, we are bound to examine the book, and are not precluded from doing so by the failure to make copies of them parts of the record. The object of the statute was to put them, as to city matters, on a similar footing with statutes — so far as relates to the method of proving their contents.—Charter of Detroit, Chap. 11 § 13.

The ordinances relied upon to sustain this conviction all relate to the conduct of omnibus agents and drivers when acting as porters or runners for public houses or hotels. Chap. 88, §§ 8, 9, 10. The provisions are contained in a chapter exclusively devoted to “porters and runners,” while there are other chapters relating to the license and regulation of carriages of various kinds when not employed for such agencies. The case is therefore fatally defective in not bringing the defendant within the prohibitions relating to runners for hotels and public houses.

The main question, however, calls for a decision upon the validity of a prohibition which would prevent railroad companies from making such arrangements as are found by the Recorder to have been entered into here. We have no difficulty in deciding that the city cannot lawfully interfere to prohibit such arrangements. The acts done are done upon the private premises of the railroad companies, over which the city can have no general control; and we think there is no reason why these companies, in their character of carriers of passengers, may not properly make such arrangements as will facilitate their reaching their destination anywhere in the city as well as at the end of the track in the depot. Passengers, who are strangers in the city, have no means of knowing the character of the runners they may encounter outside of the depot, and if they can deal without confusion, and at their leisure, with responsible agents it will be much more convenient and safe than to compel them to select from among strangers and in the noise and bustle attendant on the arrival of the cars. Such contracts of employment, made in the cars and on the premises by the companies cannot be lawfully restrained by the city authorities. No driver can without permission go, of right, on the private property of the rail-railroad company unless employed by a passenger, and the the city could give him no authority to do so. And any arrangements for the delivery of passengers and their bag-age — not unlawful in themselves — which are made by the railroads in their own cars, and on their own lands, are exempt from municipal interference; and the ordinances— so far as they may attempt such interference, are invalid. The conviction must be quashed.