text:
    The People v. Addison P. Cook.
    A Prosecuting Attorney, having discovered an error in an indictment, corrected it without the leave of the. Court,. and the case went to trial on the indiot* ment as corrected. Attention being called to the alteration on the trial, tho Court below decided that the alteration by the Prosecuting Attorney in a material point would vitiate the indictment. Held erroneous.
    The defendant might object to allowing such an amendment to stand, and the» effect of his objection would be to restore the indictment to its original shape. But the prosecuting officer could not treat it as a nullity; and if the cause was tried and defendant acquitted on the indictment as amended, the acquittal would be a bar to a subsequent prosecution for the same offense, provided the indictment, as it read at the time of the trial, was sufficient.
    The question of the sufficiency of an indictment can not be referred to the jury as a question of fact.

      Heard April 18th.

      Decided May 6th.

    On exceptions from Washtenaw Circuit.
    Defendant was indicted for perjury in testifying, in an ’action in which George Cook was plaintiff, and Henry B, Wier was defendant, that the note of two hundred and forty dollars upon which the action was brought was the property of said George Cook, and not of himself. To this indictment a plea of former acquittal was interposed, and a jury being impannelled to try the issue, the following proceedings were had:
    “The said defendant, to prove the issue on his part, introduced as evidence on his part an indictment which was found at thp March term of the Circuit Court for the county of Washtenaw and State of Michigan, for the year eighteen hundred and fifty-eight, which indictment was found for the same identical offense, and no other than the offense charged in the indictment in this suit, which fact was admitted on the part of the People by S. Abel, Prosecuting Attorney; thereupon the defendant, ■further to prove the issue on his part, introduced the 'original entry from the daily journal of the proceedings of the Circuit Court for the county of Washtenaw, made on the fourteenth day of September, 1858, which entry upon the journal of said Court is as follows:

      [Tithe oe the cause].
    “In this cause the respondent, Addison P. Cook, being present in Court, on motion of Prosecuting Attorney, trial by the Court is now here ■ ordered. Thereupon the following jury was duly called,” &c. “Whereupon Robert J. Barry being duly sworn as a witness on the part of the People, the jury, without leaving their seats, found the. defendant not guilty in manner and form as the People have in their indictment in this cause charged/ Thereupon-the respondent was discharged from his recognizance.
    “Thereupon the defendant rested on his part, as to evidence of former acquittal for the same offense.
    “ The People in order to prove the issue on their part, introduced Alexander D. Crane as a witness, who testified substantially as follows:
    “ I Avas Prosecuting Attorney at the time the first indictment was found and filed in this Court.
    “ Question. — Was the indictment altered after it was found?
    “ Answer. — In reading the indictment over I found the words “ and forty ” were left out in the description of the note, and I, Avithout thinking, altered it. It was the evening before the trial was had. These two words only occur In the description of the note.
    “ The Prosecuting Attorney then asked the witness what took place on the former trial.
    “The witness answered that Mr. Barry was sworn as a witness; after this Mr. Hawkins made the statement, and. objected that the alteration had been made, and I admitted it, and he was acquitted.
    “ On his cross-examination he said:
    “My recollection is that when Mr. Barry was sworn,, and before the objection was made, he might [have answered a question or two. The note is correctly described in three or four other places in the first indictment. I only made one alteration, and that was between the third and fourth lines of the third page of the indictment.

      “This was all the evidence on the part of the People. The Court then charged the jury upon said question substantially as follows:
    “The issue joined between the parties and which you are to try, is a plea in bar or abatement, and which is to determine whether the defendant answer further to this indictment. A former indictment was found for the same cause or offense, and a jury was .impanelled and a witness sworn, and if that indictment was free from error, he is not liable to a second trial. But if the former indictment was not free from error, it could not be pleaded in bar. The question for you to find is .whether the former indictment was free from error or not. The former indictment must be defective in a material point. Here the defect consists in the description of a note, and the question is, is that a material defect? I have no doubt myself, when a paper is alleged as the basis of the perjury, it would be such a defect as to invalidate the indictment, if not correctly set forth. It will be for you to find whether there was an alteration in a material point. I think it material, and the alteration by the Prosecuting Attorney would vitiate the indictment. It is not the indictment found by the grand jury. But this is a question for you to find. There is no question made about the right to amend. There is no evidence on that point. If the defendant could have been legally convicted on the indictment, as it stood, it would have been a bar; but if it was altered in a material point he could not have legally been convicted on it. If you find the former indictment free from error, it will be your duty to find for the defendant on this issue. If it was not free from error, you will find for the prosecution. If there could have been a legal conviction on that indictment, you will find for the defendant.
    “Defendant’s counsel then requested the Court to charge the jury as follows:
    “If the former indictment, on which the defendant was tried and acquitted in this Court, was sufficient on its face, at the time the defendant was put on his former trial, and .the jury impanelled and sworn, to authorize a conviction for the same offense charged in. the present indictment, and the defendant was put upon parol evidence to show an alteration of the indictment by the Prosecuting Attorney, after presentment, then the jury, on this issue, must find for the defendant. Also that if the former indictment was sufficient on its face, in the condition it was at the time the jury were sworn and impanelled to try it, to authorize a conviction on the same charge as in this indictment, the defendant is entitled to a verdict in his favor on this issue.”
    The Court declined these requests, and the issue was found against defendant.
    The plea of not guilty being then interposed, the defendant was convicted on the merits.

      C. I. Walker, for defendant.

      O. Upson, Attorney General, for the People.
   Campbell J.:

The question of a former acquittal as a bar to a new indictment must always depend upon the substantial identity of the offenses charged, and on the validity in law of the first indictment. In the present case, it was admitted that the offense charged in the former indictment was the same now alleged. The former trial also appears of record to have been upon the indictment as produced and proved in the Court below. The evidence allowed to invalidate it did not go to show a subsequent alteration, but to prove an amendment made by the Prosecuting Attorney previous to the trial, without authority.

That a defendant could object to allowing such an amendment to stand is very clear. But the effect of such an objection would necessarily be, if allowed, to leave the indictment in its original shape. And a defendant could, if he saw fit, abstain from raising such an objection, and therefore a prosecuting officer could not treat it as a nullity after proceeding to trial upon it. In the present case, as no amendment had been made to restore the indictment, to its original shape (supposing it.,to have been changed),, it must of necessity be presumed either that no such restoring amendment was asked, or that if asked it was refused.. The change alleged to have been made by the Prosecuting-Attorney was also such an amendment as the Court would undoubtedly have, allowed if applied for: Comp. L. § 6059. There can be no question but that the former trial was had upon the indictment as it now reads — as no evidence was offered tending to show the contrary. It is unnecessary therefore to consider the effect of any subsequent tampering with the record, because none is averred.

The only question, therefore, which could properly arise, was whether the indictment, as it reads, was sufficient in law to base a good conviction upon. If so, an acquittal under it would be conclusive. It was the duty of the Court to charge the jury upon its sufficiency, as that is a mere question of law. A question of fact could not arise upon any such previous alteration as was set up by the 'prosecution, because, for the reasons alluded to, it was immaterial, and no evidence should have been permitted on the subject.

The other Justices concurred.

New trial directed.


source: Caselaw Access Project

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

license: Public Domain

text:
    John Drennan v. The People.
    The statute (Comp. L. §5954) which provides that “The term ‘felony1 when used in this title, or in any other statute, shall be construed to mean an offense for which the offender on conviction shall be liable by law to be punished by death, or by imprisonment in the State prison ” is only a legislative definition of the term “felony,11 as used in those provisions of the statute where neither the particular offense, nor its grade, is otherwise indicated than by the use of this term; and where, therefore, the definition became necessary, as it was not intended to be used in the common law sense. Those acts which were felonies at the common law remain such notwithstanding this section, though by statute they may bo subjected to a less punishment than that here mentioned.
    And therefore larceny, though of property to the value of less than twenty-five dollars, being a felony at the common law, is still a felony in this State.
    A constable who has knowledge that a warrant has been issued for the arrest of a person for felony, may himself lawfully make the arrest without having tho warrant in his possession. But he should inform the person arrested of the facts, or at least of tho offense for which he is arrested.
    Where an officer, attempting to make an arrest on reasonable suspicion of felony, is asked for his authority, and says he has a warrant, but refuses to produce it, and givos no explanation whatever, but makes the arrest with circumstances of violence, and the person arrested resists and kills the officer, he will not be guilty of murder in so doing.

      Heard April 16th, 1861.

      Decided May 7th.

    Error to the Recorder’s Court of Detroit.
    The plaintiff in error was convicted on an information for assaulting one John Gore, with intent to murder.
    On the trial, John Gore testified as follows: “I am a constable of the First Ward; I know defendant; on the 9th of February, 1861, at about one o’clock in the morning, I arrested defendant at a house kept by one TTilT on Gratiot street. I told him I was an officer; had my star on; he knew I was an officer, a constable: I told him I wanted him to go with me; he asked what for; I told him I had a warrant for him; he said he would not go unless I showed him the' warrant: I then took hold of him by the collar with my right hand, and took him ont of doors; when we got ontside the door he took a revolver out of his pocket and cocked it; I heard the click, and said to McKay, “be careful, he’s got a pistol:” I then took hold of his right arm with my left hand, and letting go the hold of my right hand on his collar, seized the pistol around the barrel; I endeavored to take the pistol away from defendant and immediately the pistol snapped, the hammer came down upon my hand between my thumb and forefinger; it caught upon the skin of my hand, between the forefinger and thumb; the pistol was pointed about at the middle of my body, when I took hold of it; the pistol had four barrels, all loaded; I had no warrant for the arrest of defendant; I knew one had been issued against him and was in the hands of officer Van Stan; the charge against him was stealing a pair of gloves of the value of twelve shillings; I was present in the Justice’s office when the complaint was made and the warrant issued; the warrant was given to me, and I after-wards gave it to Van Stan in the Justice’s office : he, Drennan, said nothing to me before drawing his pistol: .he said in the house he would not go till I showed him my papers.”
    James McKay testified: “I am a deputy sheriff; know Gore and Drennan; Gore and I were returning home from jail on the 9th February; w;e went into Hill’s place on Gratiot street; we sat down by the stbve, and in about five minutes Drennan and Penwell came in. Gore said “how d’ye do, Johnny,” speaking to defendant; “I want you, I have got a warrant for you:” defendant replied, “Show me the warrant.” Gore refused to do so, saying he wasn’t obliged to show it; Gore .told him he' must come with him; took hold of defendant, and jerked him to the door. I followed them out and closed the door. Gore said “ look out, he’s got a pistol: ” saw Gore seize his hand. I took hold of his left shoulder and arm; he scuffled a little and we threw him down. Just as I pulled him down Gore held up a revolver. I heard no noise either of cocking or pulling off the pistol. Then we took him to jail. Gore there showed me the mark made by the hammer of the pistol striking on his hand. Drennan was pretty drunk.”

      John Yan Stan testified: “I am an officer in this city. There was a warrant out against Drennan on February 9th, for stealing a pair of gloves, issued by Justice Fecht. The warrant was in my possession; I arrested the person jointly ■charged with Drennan, on the same night: afterwards gave the warrant to Gore.”
    The prisoner called Wa Penwell, who testified: “I was with Drennan on the night in question, and had been for some four or five hours before we reached Hill’s place. I saw him have a pistol just before we got to Hill’s; a dog rushed out at us, and Drennan said he had been troubled enough with dogs, and wouldn’t be any more; he then drew his poistol to shoot the dog; we then went into Hill’s; Gore said “halloo Johnny, I want you.” Drennan refused to go with him unless he would show his warrant. Then Gore took hold of Drennan and took him out of doors. I followed in less than a minute, and when I got out Gore and McKay had Drennan by the collar taking him off to jail; Drennan was pretty drunk.”
    The case being submitted on this evidence, the Recorder charged the jury, among other things', as follows: “ If you find that the prisoner drew the pistol and cocked it with an Intention to kill Gore, but was prevented from so doing, then he is guilty as charged. If Gore knew that there was a warrant out for the arrest of the prisoner, he, as an officer, had a legal right to arrest him, and had the prisoner intentionally killed him, it would have been murder.”
    The plaintiff in error being convicted, the case was brought to this Court for review on exceptions to this charge.

      H. M. & W. M. Cheever, for plaintiff in error,
    argued that the offense charged upon Drennan in the warrant issued by Justice Fecht being a misdemeanor only, the arrest by Gore was unlawful; 1 Chit. Cr. L. 20; 1 Hale, 587; 1 Mast P. C. 303; 1 Russ. on Cr. 599, 601; 10 Ad. & El. 358. And consequently if death had ensued from the assault made by him, Drennan would have been guilty of manslaughter only, and not murder; 1 Russ. on Cr. 596, 599; 1 Chit. Cr. L. 18; 7 C. & P. 244; Ibid 775 ; Ibid, 817; 1 Mood C. C. 132; Ibid 80; Ibid 394; 1 C. & M. 180; 3 Yerg. 392; 2 Wheeler C. C. 495.
    In this case the violence of Drennan was plainly provoked by the irregular and unlawful conduct of Gore.

      C. Upson, Attorney General, for the People:
    The offense in question is a felony at the common law: Whart. Cr. L. 1 ; 4 Bl. Com. 99; 1 Hale P. C. 530, 581. The statute has not made it a.misdemeanor. It only defines statute felonies, and leaves petit larceny untouched, and to remain in force in respect to all questions controlled by the common law. — 3 Hill, 255; 3 Park. Cr. R. 249. And the constable was authoiized to make the arrest. 5 Bing. 363,
   Christiancy J.:

Is larceny to the amount of one dollar and fifty cents (in resisting the arrest for which the assault was made) an offense for which the constable might arrest the offender Under the circumstances of this case, without having the warrant in his possession? This is the main question in the case. It is admitted that, if the larceny charged was a felony, the constable under the circumstances had a right t'o make the arrest, and that, had the assault made by the prisoner in resisting the arrest, resulted in killing the constable, such killing would have been murder, unless the conduct of the officer in making the arrest was such as in some measure to excuse the defendant.

But it is insisted by the counsel for the prisoner that larceny to an amount less than twenty-five dollars, though a felony at common law, ,is not such under our statutes, because not punishable with death or by imprisonment in the State prison.

The statute relied upon is section 18 chapter 161 Revised Statutes of 1846 (Comp. L. §5954): “The term felony when used in this title, or in any other statute, shall be construed to mean an offense for which the offender, on conviction, shall be liable by law to be punished with death, or by imprisonment in the. State prison.”

This provision is but a legislative definition 'of the term felony as used in certain provisions of the statute; and ' its effect can only be known by reference to those provisions where the term is used. Of itself, without such reference,it has no effect upon any offense whatever. Nor can it be "reasonably supposed it was intended to extend to those provisions of the statutes (of which there are two cases at least in the same Revision;— Ch. 154 §§35 and 36; Comp. Laws, §§5779 and 5780) — which in defining the offense have expressly designated it as a felony, and made it punishable in the State prison; for in such case no such general definition was required. Nor is there any more reason to infer that, where a particular provision of the same act (for the whole Revision was passed as one act) has expressly designated a particular statute offense as a misdemeanor, this definition was intended to convert it into a felony, though the provision defining the offense has made it punishable by imprisonment in the State prison. See a case of this kind, R. S. Ch. 19 §5 (Comp. L. §5917).

We must therefore understand this provision as intended to apply only to those provisions where neither the particular offense nor its grade is otherwise indicated than by the use of the term felony, and where, therefore, the definition became necessary, as it was not intended to be used merely in the common law sense.

This definition became necessary to fix the meaning of the term in the following provisions, contained in the Revision; sections 1, 2, 3, 4 and 5 of Chapter 161 (Comp. L. §§5937 to 5941) in reference to aiders and abetters, accessories, &e., and the mode -of their prosecution; section 28 chapter 153 of R. S. (Comp. L. §5738) in reference to assaults with intent to commit a “felony”; sections 10, 12, IS and 14, chapter 154 of R. S. (Comp. L. §§ 5754, 5756, 5 IS 1 and 5'IS 8) in reference to breaking and entering houses and other buildings with intent to commit a “felony”; section 19 chapter 164 of R. S. {Comp. I. § 6028) in reference to inspection of indictments for “felony”;, section 14 chapter 165 of R. S. {Comp. JL. § 6081) giving the right of separate, trials where two or more are jointly indicted “ for felony; ” and section 9 of the same chapter {Comp. L. § 6076) requiring the personal presence on trial of a party indicted for “felony.”

It was for the purpose of fixing the meaning of the term in these and similar cases that this definition was given; for a clear apprehension of the full force and effect of the definition, we have only to substitute the definition itself for the term defined, as the two must of necessity be identical in effect; we shall then read, instead of the word felony wherever it occurs in these provisions, the words, “ an offense for which the offender on conviction shall be liable by law to be punished with death or by imprisonment in the State prison.”

It will thus be readily perceived that this statute definition does not neeessarily make all offenses which are punishable with death or by imprisonment in the State prison felonies, to all intents and purposes, as would have been the effect of a direct general enactment, that all offenses thus punishable should be felonies; because, in the latter case, all the consequences and incidents of felony at common law must attach, except so far as the same might have been cut off or modified by the statute, or required by manifest public policy to be rejected. But this definition, operating merely by reference, can have the effect only to make them-felonies within this statute definition, and to the extent, and with the incidents and consequences, indicated by the respective sections or provisions of the statute referred to where the term felony is thus used — .though there maybe strong reasons, for the sake of uniformity and by analogy to common law felonies, to consider them as drawing after them the usual incidents of the latter. But while this definition, by reference, includes for the purposes mentioned, not only statute offenses, but all offenses at common law which by our statutes are made punishable in the manner indicated, whether felonies or misdemeanors at common law; it is clear, I think, that even as to those common law felonies thus punishable, it can have no other effect than to render them subject to the particular provisions of the statute, where the word felony is thus used, neither- adding to nor taking from them any of the common law incidents of felony, except so far as these particular provisions may have that effect.

And as to those common law felonies not thus punishable by our statutes, they are in no way affected, either by the definition or by the provisions to which that definition refers; for the plain. reason that they do not come within either, but remain felonies at common law, in the same manner as if this statute definition had never been adopted. And the liability to arrest without warrant, incident to common law felonies, still remains untouched, by this or any other statute of this State.

The conclusions at -which I have arrived as to the effect of this statute definition, are exactly in accordance with the construction given by the courts of New York to the same provision in their statute (1 N. Y. Rev. Stat. part. 4, title 7, ch. 1 §30), from which our statute definition was copied. The question under their statute was substantially the same as under ours, though the particular provisions to which the definition had reference, differed slightly in the detail.

In Ward v. People, 3 Hill, 395, it was held that petit larceny (which by their statute was defined to be larceny to the amount of twenty-five dollars or under — Rev. Stat. § 1, ch. 1, part 4, title 6 — which in this respect differed from ours, we having strictly no such division of the offense into grand and petit larceny) though not punishable with death or by imprisonment in the State prison, and not therefore within the statute definition, was still a felony at common law — that the statute definition only defined statute felonies, but that it did not interfere with those existing at common law untouched by the statute.

Another case in the same Court, Carpenter v. Nixon, 5 Hill, 260, illustrates still more clearly the proposition, that the provisions (of the statute) referred to by the definition, are to be read precisely as if the term felony were stricken out, and the words of the definition inserted in its place. The question arose upon the competency of a witness who had been sentenced on a conviction for petit larceny. The statute (1 N Y. Rev. Stat. title 7, part 4, ch. 1, §23) provided that “No person sentenced upon a conviction for felony should be competent to testify,” &e., but that “no conviction for any offense other than a felony should disqualify,” &c. Here the same Court, the same judge giving the opinion in reference to the same offense,, and citing Ward v. People, held that the witness was not disqualified; because, though the offense still remained a felony at common law, it was not within the Statute definition, which alone disqualified; and it is difficult to see how any other view could have been taken. The statute in reference to the competency of the witness had used the term, felony, as the only term descriptive of the offense, and the term therefore came within the statute definition; while the offense of petit larceny, though still a felony, did not; but it did come within the negative words of the section, as an “other” offense than that included in the statute definition. These two decisions are therefore in perfect harmony with each other, and both, as I think, clearly correct. See also Shay v. People, 22 N. Y, 317, which is to the same effect, and like the case last cited entirely consistent with that of Ward v.' The People in 3 Hill; as will be readily perceived by inserting the words of the definition in place of the word felony in the statutes referred to. These decisions were made, the first in 1842, and the second in 1843. This provision of the New York statute was adopted into ours in 1846. As a general rule, it is a fair inference that the legislature, in adopting a statute from another state, which has there been judicially construed, intended to give it- the same interpretation it had there received by judicial construction. I see no reason for departing from this general rule in the present case, especially as I should be compelled to give it the same interpretation without the aid of these decisions.

I think therefore the charge of the Court below was correct, so far as it related to the right to arrest without having the warrant in possession.

But though Gore hjd a right, as I think, to make the arrest in a proper manner, without having at the moment the warrant in his possession; yet, to place the defendant under any obligation to submit to the arrest, the officer should have informed him of the facts, or at least of the offense for which he arrested him. But, instead of doing this, Gore simply told him he had a warrant for him. And when defendant asked to see it, Gore refused, saying he was not bound to show it, and, at once seized him and jerked him to the door. This conduct of the officer was well calculated to excite the suspicion of the defendant, and to induce him to believe the officer was acting in bad faith, and thus naturally tended to provoke the violence which ensued. The defendant, under such circumstances, might well believe he was resisting an illegal arrest, and lawfully defend ing his liberty.

Hence so much of the charge as informed the jury that If defendant drew the pistol with intent to kill, and if death had ensued, it would have been murder, was, I think, erroneous; and upon this portion of the case I concur with my brother Campbell. The verdict should therefore be set aside, and a new trial granted.

Manning J. concurred.

Campbell J.:

Two principal questions are presented in this case. First, whether an officer can arrest without warrant, upon a charge of larceny, where the amount stolen is less than twenty-five dollars, and the offense was not committed within his knowledge or presence: And second, whether he can arrest, where a warrant has been issued, but is in the hands of another officer. And a third question is presented, partly but not entirely dependent on these, arising upon the charge of the Court.

If larceny of the degree mentioned is felony under our laws, then the arrest might legally be made upon such grounds of suspicion as appeared in the case. The consideration of the manner of the arrest, except as connected with the necessity for the possession of a warrant, will be taken up hereafter; as it is not necessary to dispose of the first question.

The general chapter on Criminal Procedure, in the Revised Statutes, contains this clause: “The term ‘felony’ when used in this title, or in any other statute, shall be construed to mean an offense for which the offender, on conviction, shall be liable by law to be punished by death, or by imprisonment in the State prison.” Comp. L. §5954.

This section furnishes a definition, not confined to cases where the term is used in the Revised Statutes. It is made applicable to every law, future as well as existing. And, if there could be a felony not covered by the statute definition, no legislation could reach it without a very awkward circumlocution, inasmuch as the common law term is thus appropriated to a specific use.

If we consider the Revised Statutes together, even leaving out of view other laws having some bearing on the question, we shall find the Legislature has made express provision for every offense; not leaving any case to its. common law consequences, but defining the punishment for all crimes. And in order to avoid any mistake, the statutes, after providing expressly by name for nearly if not quite every offense likely to be committed, which had been previously known to the law, contain a sweeping provision, that every common law offense, not expressly provided for, shall be punished by imprisonment in the county jaii, or by fine, for a time and amount limited — § 5958. A similar provision, varying in the extent of the punishment, had previously been in force: — L. 1840, p. 45. The common law now, therefore, is chiefly valuable for its definitions of offenses, and not for its rules of punishment.

.By the Revised Statutes of 1838, provision had been made by chapter 2, title 1, part 4 (which corresponds with the chapter containing the sections referred to)' for the punishment of accessories and other aiders and abetters, of any offense “which shall be a felony at the common law, or by any statute now made, or which shall hereafter be made'!'1 M. 8. 1838, p. 651. At that time there was no such clause reaching undefined common law offenses as has been alluded to. The mode of trial was pointed out, and the principal felon was not required to be convicted first. In the Revision of 1846, whereby these provisions concerning accessories were substantially re-enacted, all allusion to common law felonies is dropped; and it is not reasonable to suppose it was done accidentally. Still less can we imagine it was designed to revive the common law absurdity, that no accessory should be tried before the principal felon had been convicted. I think the intro, duetion of a specific definition of felony shows why the change was made; and that common law felonies were not alluded to because all felonies thenceforth were to be statutory. Any other construction leads to interminable confusion ; and in no case more than in larceny; for it would require extreme ingenuity to determine, under our statutes on that subject, which had long abolished the common law test of twelve pence value, in what cases there might and. in what there might not be accessories.

It has always been considered that when a statute takes up, and completely covers, a subject previously governed by the common law, the common law ceases to operate upon it, except where the statute has made no provision whatever. Our statutes certainly cover every class of larcenies, and provide how they shall be punished. They then provide that all offenses punishable in a certain way shall be felonies; and proceed to declare how accessories and principals, to offenses so punishable, shall be tried and punished. I can not perceive how any more decisive method could have been devised whereby to abolish the common law on this subject.

But petit larceny, although a felony at common law, resembled other felonies in only one feature. It was not punishable like others, and it was not a crime to which there could be accessories. The only point of resemblance was that it was attended by a forfeiture of goods on conviction. This element never existed in Michigan; and there was .certainly very g'ood reason for changing the classification of the offense, when it had ceased to retain a single feature common to other felonies. It has always been regarded as a petty offense, punishable generally by a summary conviction before a justice ; and I do not think there is any principle of policy, or any rule of construction, which can authorize a court to apply to it, under our laws, the severe and sanguinary rules applicable to heinous offenses. There may be some reason in allowing arrests for the latter on suspicion, and for allowing the use of extreme measures, even to the taking of life, to enforce them. But were any Legislature to provide expressly for such an exercise of power, as would authorize the taking of the life of a man -only suspected of a petty theft, where he seeks to escape without violence, their action would he justly deemed atrocious. In revising the criminal law to escape such consequences, I think they have succeeded, in what no one ever doubted they designed to do.

Had the section defining felony been adopted after a judicial construction of it in another State, even by a Court of last resort, I should still feel authorized to disregard that construction, if contrary to the plain intention. But although this section was adopted from New York, we must bear in mind that the changes in other statutes of Michigan, made at-the time of its adoption, are not to be overlooked. This section was not adopted as an independent one, but as a part of a system, which did not in many respects conform to the laws of New York, either before or after its completion. And in regard to this very offense of larceny, our laws differ entirely from those. In New York, larceny is still defined as grand and petit larceny. Here there is no such distinction, and had not been since the early days of the Territory. And, when the distinction was abolished in England, it was deemed necessary by express language to declare the legal character of the new statutory offense, by making it subject to all the rules before governing grand larceny.

But the statute of New York has never received a judicial construction binding there or here. It has been decided there, repeatedly, that petit larceny does not disqualify a witness under a statute which disqualifies all persons convicted of felony. And in the last case decided, where the dieta to the contrary of some previous decisions were, relied upon in argument, the Court treated the objection with very little ceremony: — Shay v. People, 22 N. Y. 317. While this case does not, perhaps, expressly decide the point in question here, the distinction is an exceedingly nice one. And this is the only, decision made on the subject in the Court of last resort of, New York.

The only case decided which is supposed to settle the point before us is that of Ward v. The People, 3 Hill, 395, decided by the Supreme Court. The question there decided was, however, only that there were no accessories in petit larceny. The Court expressly say that it was not material to the case whether the statute did or did not leave it a felony; because it had no accessories at common law. And the Court expressed no doubt that the Legislature intended to make the offense of petit larceny a misdemeanor; but, at the same time, the Chief Justice was “ inclined to think they did not accomplish -their object.” This certainly is not a binding- decision, which can compel us to disregard that intention. And the New York Revisors, whose deliberate opinion is worthy of great respect, introduced the section in question with the understanding that it was to cover everything. In reporting it they say, “The, term felony originally imported an offense for which the offender forfeited his fief his lands and tenements, goods and chattels: 4th Black. 94. Such forfeitures have long been abolished, and the term has really no signification in our law. It is frequently used in statutes, and it is therefore desirable to give it a definite meaning. The definition proposed is conformable to the common understanding:” — 3 R. S. of N. Y. 836, 837. I am of opinion, for these reasons, that Drennan was not charged with felony; and that Gore had no right to arrest him without a warrant.

As the Court below decided that the evidence of a warrant was sufficient ground of suspicion, and that the offense suspected was a felony, the warrant was not introduced in evidence, and no ruling was had upon its legality, or the ■ authority of Gore under it. If the offense was not a felony, then of course the charge was erroneous; because the other points never went before the jury for action. But the rights of an officer,under a warrant become important on a new trial, and were argued fully on both sides, and should therefore be considered.

Two things are necessary to justify an arrest on a warrant; first, a warrant good on its face, and second, an authority in the person who undertakes to act under it.

If a warrant is upon its face void, then no officer can justify under it; although, as a general rule, no officer is bound to look behind a regular warrant coming from a proper jurisdiction. It is laid down without dissent, that no person is bound to submit to an arrest under a void warrant, or to an arrest made by an unauthorized person under a good warrant, or to an arrest made by an authorized officer under a good warrant, but not against the person arrested. In Rex v. Weir, 1 B. & C. 288, Bayley J. says, “It is of great consequence that magistrates should be careful to direct their warrants in such a manner that the parties to be affected by them may know that the persons bearing the warrants are authorized to execute them. The importance of giving such information will be easily admitted when it 'is remembered that according to the extent of the officer’s authority his. death may be murder, manslaughter, or perhaps justifiable homicide.” Coleman J. in Hoye v. Bush, 1 M. & G. 775, approving and quoting this language, says, “It is of the essence of a warrant that it should be so framed that the officer should know whom he is to take, and that the parly upon whom it is executed should Jcnow whether he is bound to submit to the arrest.” In Howard v. Gossett, 10 Q. B. 359, Coleridge J. uses this language: “Why is it necessary to state at all the cause on the face of the warrant ? Several reasons are given: not the least inqiortant is, that the party called upon to submit to the process of the law may know what it is that is charged against him, and for what it is that he is called upon to yield himself a prisoner. If no cause, or an insufficient cause appear, he takes his measures accordingly at the time; and he . must fadge from the information communicated at the time. Should he resist, and kill or injure the officer in his resistance, and be brought to trial, it could not be contended that any fact could be added to the statement in the warrant to his prejudice.” And further, “We may come nearer to the point and suppose, not only a good cause, but a good warrant, only the constable has left it at home, and arrests without any; the imprisonment clearly would be illegal; it could not be said to have been effected under and by virtue of the warrant; and surely no averment in pleading could be allowed to cure the defect.” Lord Denman also uses very strong language on the subject. And the Court of Exchequer Chamber, while they differed from the Queen’s Bench in holding- the particular warrant valid, approve of their reasoning as applied to ordinary warrants. See also Rex v. Whalley, 1 C. & P. 245; Rex v. Patience, 7 C. & P. 775. The case of Galliard, Appellant v. Paxton, Respondent, just decided by the Queen’s Bench, and reported in the American Law Register for March, 1862, (p. 305) is the only adjudged case, perhaps, which decides the precise point in issue here. In that case it was held a rescue was not illeg-al which was made of a person seized by officers, who had the warrant, but had left it in the station house. It was there held the warrant must be with the officer at the time of the arrest.

If it is not necessary that an officer should have a warrant with him when an arrest is made, then it would necessarily follow that every one would be bound to submit, upon the mere claim that he had a warrant — a principle which is condemned in the stongest terms by Lord Kenyon in Hall v. Roche, 8 T. R. 187. The cases certainly mean that the party arrested shall have a right to see the warrant at the time. And such is the doctrine laid down by the best authorities; although, if a party resists before an opportunity is given to the officer to comply with his demand, the officer may — if he has a good authority — secure the arrest first: — Commonwealth v. Cooley, 6 Gray, 350; State v. Phinney, 42 Me. 384; 2 Hale P. C. 116, note; 1 Past P. C. 319.

The English practice, like our own, authorizes warrants to issue, directed not only to one person, but also to any constable. This covers the case of Galliard v. Laxton. And any constable to whom the writ is lawfully delivered becomes empowered to serve it. But a warrant can not be law-folly held by two officers at once, where they are not together. Otherwise the doctrine of arrest on suspicion would apply to misdemeanors as well as felonies; for what could be done by one could be done by every constable in the county. In New Jersey an arrest under such a warrant was held unauthorized, except by the possessor, in The State v. Ward, 5 Harr. 496. And our statutes contain several provisions implying the same thing. The law contemplates that a party arrested shall be brought forthwith before the magistrate; but it must be upon a return of the warrant; and until this return there is no provision for bail. The prisoner is required to answer the charge as contained in the warrant of arrest: — Comp. L. Ch. 118. If a habeas corpus issues, a copy of the warrant must be retened by the officer: — Comp. L. § 5221. And any person who is a. mere stranger has a right, upon tender of fees, to have a copy of the warrant within six horn’s, under a penalty of $200: — Comp. L. § 5259.

It certainly can not be law that a person arrested is to be held until one of the many constables who happens to know or hear of a warrant can find where it is. The mischief to be guarded against is the unlawful interference with liberty; and if every one arrested must, at his peril, and without any information beyond the assertion of his captor, submit to detention, all the machinery of the law devised for the protection of the citizen becomes powerless. The consequences of such a doctrine would be so deplorable that no man could ever be safe against unlawful violence. Arrests for wrong purposes could always be made effectual. Both reason and authority are in conflict with such a position. The law of arrest only gives rights to officers where it imposes duties; and the duty to serve a warrant can never attach where the officer can not return it as soon as its mandate is obeyed. The duty of submission to a lawful arrest is found in the law, side by side with the right of resistance to an unlawful one; and it is quite as important that no one should be unlawfully taken, as that every one lawfully accused should be made to answer.

But an equally important question arises under the charge of the Court. The jury were instructed that, as Gore had a right to arrest upon sus]Dicion of felony, it would have been murder had Brennan killed him intentionally. • This, I think, as the evidence stood on which the charge Avas made, was clearly erroneous. If Gore had reasonable suspicion which would justify Mm in making the arrest, the accused could not be liable to that extent for resisting, when the suspicion was not communicated to him. When he asked the cause for which he was wanted, he was not informed that he was suspected of felony, but was merely told that Gore had a warrant for.him; which, if genuine, might have been for any grade of offense, or for a civil cause. And the officer Avhen asked to show Mm the warrant, refused to do so, saying he was not obliged to show it; and forcibly collared, and jerked him out of doors, before he attempted any resistance. There was no resistance before the officer had time to give the information. I think it would be exceedingly difficult to find any authority which can justify such an arrest ; or which can hold a defendant responsible for a knowledge of a fact wilfully concealed from Mm. Such conduct in officers of the law can not, in my judgment, be too severely reprehended. It can hardly fail to provoke violence.

I am of opinion that a new trial should be granted.

Martin Ch. J.:

The power and duty of officers to arrest, without process, persons charged with crime, are derived from the common law, and not from the statute. They are conferred and imposed in all cases of felony; but not in those of misdemeanor, except when committed in their immediate presence. When we ascertain, therefore, what are felonies at the common law, we know for what common law offenses persons charged may be arrested without process. Larceny was such an offense. The statutory definition of the word felony was not, in my opinion, designed to restrict this power or duty; or to have any other effect than that of a definition; although it may aid, perhaps, in the construction of other statutes. The word has now no peculiar value ; for no consequences peculiar in the common law, such as forfeiture of lands, &c., attach to it. The statute itself only defines the word as used in it; leaving the common law definition intact; and does not purport to go beyond such statutory use.

The power of the officer being a common law power, it would se.em to follow that no change by statute in the punishment of an offense known in the common law as a felony, and the abolition of the penalty peculiar to felony, and the consequent necessarily new definition of the term, could impair or affect that power. If the Legislature should make murder or robbery punishable by fine only, still the power to arrest would remain the same as it was when the penalty was death; for such power depends upon the nature of the offense, and not upon the severity of. the punishment. It was conferred for the protection of society; and the same reasons will exist for its exercise now as heretofore, however crime may be defined and punished. I hold with my brother Christiancy that the statute has not impaired the common law power of officers [to arrest offenders; and I concur with my brethren also in the reason assigned for 'setting aside the 'verdict.

J¥ew trial granted.


author: Manning J.: Cheistianoy J.:

text:
    Hiram Davis and another v. Jared Freeman.
    The policy of the law will not permit parties to make that liquidated damages» by calling it such in their contract, which in its nature is clearly a penalty or forfeiture for non-payment.
    Where one party agreed to draw for another a quantity of timber at one dollar fifty cents per thousand feet, one dollar per thousand of which was to be advanced, and the remainder to be “settled, fixed and liquidated damages,” in case the contract was not completed; it was held, that the sum so fixed was to be regarded as a penalty; since otherwise the nearer the contract was completed the greater the damages to be recovered; while if the party should fail to draw any of the timber there could be no recovery.
    The office of a bill of particulars is to inform the opposite party of the causes of action to be relied upon on tho trial which 'are not specifically set out in the declaration.
    On a trial by jury, if tho plaintiff recover less than $100, the Judge is to determine whether his claim as established at the trial exceeded $200 and was reduced by set off; and if so, the plaintiff should recover costs.

      Heard April 12th.

      Decided May 18th.
    Error to Shiawassee Circuit.
    The action below was brought by Freeman, who in the first count of the declaration set out a contract made November 15, 1859, by which defendants (below) were to draw within the winter next following, all the pine timber on a certain lot of land, at one dollar and fifty cents per thousand feet, to be paid for as follows: “ Whatever supplies are necessary to carry on said job, up to one dollar per thousand feet, as fast as said logs are barked, inspected and scaled; it being understood that the second party [Freeman] is to furnish enough supplies to make the commencement of said job in advance of there being any logs barked, it being understood that the advance is to be part of the one dollar payment, and the balance, fifty cents per thousand feet, to be paid in money when this contract is completed; it being- understood that the balance kept back is to secure the completion of this contract; and it is hereby agreed between the parties that the fifty cents, per thousand feet is settled, fixed and liquidated damages, in case this contract is not completed by said first party.” Which contract it was alleged Davis <fc Ingersoll had failed to perform on their part.
    The declaration also contained the common counts.
    Defendants demanded a bill of particulars of the plaintiff’s demand, and one was furnished, specifying hay, lumber, chains, &c., and payments for defendants, but no way referring to the contract.
    Defendants pleaded the general issue, and gave notice of set off.
    On the trial before a jury, the contract was offered in evidence, and objected to by defendants, on the ground that plaintiff had abandoned his claim under the same, by filing a bill of particulars which does not include any claim under the contract. The objection was overruled, and the contract received in evidence.
    The Circuit Judge charged the jury that the damages -referred to in the contract were liquidated and fixed by the parties, and that if the jury found that defendants had failed to fulfil on their part, plaintiff was entitled to have fifty cents per thousand feet deducted from the whole sum to be paid them for the delivery of the logs. To 'this charge, defendants excepted.
    The jury returned a verdict for plaintiff for seventy-five dollars, and the Court gave judgment for that amount, and also gave costs of suit, “for the reason,” as stated in the bill of exceptions, “ that the plaintiff’s claim, as established at the trial, exceeded two hundred dollars, and that the same was reduced by set, off.”
    Defendants brought error.

      McCurdy & Raynale, for plaintiffs in error:
    1. It was error to admit the contract in evidence — it not being covered by the bill of particulars: — 7 Cow. 317; 17 Wend. 20; 1 Burr. Pr. 432.
    2. The fifty cents per thousand mentioned in the contract was in the nature of a penalty, and not liquidated

      damages: — Sedg. on Dam. 429; 1 Denio, 464; 16 N. Y. 277; 18 Barb. 50, 338; 21 N. Y 253 ; 5 Mich. 123.
    3. It was error to award costs to plaintiff. The Circuit Judge could not know how much of plaintiff’s demand the jury found “ established,” nor whether it was reduced by set off or not.

      Goulds & Hanchett, for defendant in error:
    1. The contract being specially declared upon, it was. not necessary to mention it in the bill of particulars: — Green's Pr. 344; 4 Wend. 200; 19 Conn. 309; 5 E. L. & Eq. 441; 5 C. & P. 340; 8 C. & P. 769; 1 Burr. Pr. 430; 2 Arch. Pr. 221.
    2. The charge with respect to the damages was correct. The case was a proper one for the parties to fix upon and settle the damages: — 5 Mich. 137; 16 N. Y. 469; 19 Barb. 106; 17 Wend. 447; 22 Wend. 201.

      5. The Court was right in awarding costs : — 14 Wend. 68; 3 Ind. 430; 8 Blackf. 556.

   Manning J.:

The plaintiffs in error were to have one dollar fifty cents per thousand feet for drawing the timber, one dollar-of which was to be paid as the timber was drawn, in supplies to enable them to carry on the job, and the remaining fifty cents in cash, when all the timber was drawn. In the language of the contract, “ it being understood that the balance kept back is to secure the completion of this contract; and it is hereby agreed between the parties that the fifty cents per thousand feet is settled, fixed and liquidated damages, in case this contract is not completed by the said first party.”

They having failed to draw all the timber, the question is whether the fifty cents per thousand feet on what was drawn, and which was to be paid on completion of the contract, is to be regarded as stipulated damages, or in. the nature of a forfeiture or penalty for not completing the contract? The Court below charged the jury that the fifty cents per thousand feet on what had been drawn was stipulated damages. In this we think the Court erred. If stipulated damages for a non-performance of the entire contract, the defendant in error could not recover any other or greater damages for a non-performance, in whole or in part. And it would follow that he could recover no damages whatever on the contract, had the plaintiffs in error refused to draw any of the timber. Such clearly could not have been the intention of the parties. They must have intended that if the plaintiffs in error should draw a part of the timber, and not the whole, they should not be paid the fifty cents per thousand on what had been drawn by them. That, in the language of the contract, it should be “fixed and liquidated cfitmages.” If the contract had provided for the payment of fifty cents per thousand feet as liquidated damages for the timber not drawn, the case would be altogether different. For the nearer such a contract was completed, the less would be the damages. The damages would be proportioned to the non-performance. But the contrary would be the case as the contract is, if the fifty cents per thousand is to be regarded as liquidated damages, and not as a penalty. For the nearer the contract is completed the greater are the damages in case of failure. The damages for not drawing five thousand of five hundred thousand feet would be $24*7,50, whereas the damages for failing to draw four hundred and ninety-five of the five hundred thousand Avould be only $2,50. The policy of the law will not permit parties to make that liquidated damages, by calling it such in their contract, which in its nature is clearly a penalty, or forfeiture for non-performance. While it allows them in certain cases to fix their own damages, it will in no case permit them to evade the law by agreement. See Jaquith v. Hudson, 5 Mich. 128.

There was no error in admitting the contract, which is set out verbatim in the first count of the declaration, to be given in evidence, because it ivas not mentioned in the bill of particulars. The office of a bill of particulars is to inform the opposite party of the cause or causes of action the party giving it intends to rely on at the trial, not specifically set out in the declaration, • or notice accompanying the general issue. /

The damages recovered by the plaintiff (defendant in error) were less than $100, and within the exclusive jurisdiction of a justice’s court; and it is insisted the Court erred in allowing him costs. The bill of exceptions states they were allowed because the plaintiff’s claim as established on the trial exceeded $200, and was reduced by set off. We see no error in this, as the statute provides that, when the plaintiff shall recover any sum, he shall recover costs, if it appear that his claim, as established at the trial, exceeds $200, and the same was reduced by set off The judge, and not the jury, as it was insisted on the argument, is to determine that fact.

The judgment must be reversed, and a new trial granted.

Martin Ch. and Campbell J. concurred.

Cheistianoy J.:

I concur in the opinion of my brother Manning. It is very clear that the fifty cents per thousand feet was never estimated by the parties as the actual or probable damages to result from a breach, and that in fixing upon this sum they had no reference to the idea of compensation. It is therefore, in its nature, but a penalty, and even if the parties intended it should be actually paid, the law will not enforce it; and only such actual damages can be recovered on the contract, as may be shown by the proof.

Judgment reversed.


author: Campbell J.:

text:
    The Michigan Central Railroad Company v. Patrick Leahey.
    II. contracted with tho Railroad Company to draw, saw and pile for them certain wood at one of their stations, and the plaintiff was employed by him by the day in piling tho wood as it came from the saw. While thus employed he was injured by the cars being thrown from the track, and running against the woodshed, and in some way causing his hand to be crushed. For this injury he brought action against the Company. The Company, on the theory (which there was some evidence to establish) that the cars were thrown from the track hy means of a plank which EL had placed’ between the rails to aid in his work under the contract, asked the Court to charge the jury;
    1. That the plaintiff and El. while working on the premises were bound to use the same ordinary care against accidents to themselves as was incumbent on the Company, and that if the neglect of plaintiff or of H. in the course of their work under the contract contributed proximately to the accident, the plaintiff could not recover, unless the conduct of the company’s servants was wanton or willful.

      2. That if H. in the course of his work under the contract placed the plank on tho track, and thereby tho cars were thrown off and ran against the woodshed, this was neglect on the part of EL which contributed proximately to the accident, and that plaintiff could not recover unless the conduct of the Company’s servants was wanton or willful.
    There was no evidence that plaintiff knew of the plank being placed on the track, but it was proved to have been seen there by the station agent.
    Whether the Company were entitled to this charge, or not, quere; the Court being equally divided on the question.

      Heard October 30th and 31st, 1861.

      Decided May 12th.

    Error to Wayne Circuit. The facts will be found sufficiently stated in the opinions.

      G. V. N. Lothrop for plaintiff in error: .
    1. If the negligence of Hidden, a third person, was the effective and proximate cause of the injury, the defendants are not liable, even though there was a separate negligence on their part which contributed secondarily to the injury.
    P.The action is for tort. And the Railroad Company, if liable at all, must be liable either as a joint wrong doer or as sole wrong doer.
    It is true that all joint torts are also several for the purposes of suit. But the wrong complained of in this action was not joint.

      In trespass there must be a concert or concurrence in the wrong to give a joint action. If each act separately, though the acts concur both in time and character, they are but several trespasses. — 19 Johns. 381; 10 Wend. 654; 2 Conn. 206.
    So in case, the neglect or omission must be a joint neglect or omission to warrant a joint action. — 17 Wend. 562; 1 Denio, 495.
    But it is clear that there was no joint negligence. Even if Hidden and the Railroad Company are both chargeable with negligence, yet it is with several acts of negligence. Their acts were entirely distinct and separate.
    It follows that the action cannot be maintained against the Railroad Company as a several suit against one of two joint trespassers.
    To maintain the action as for a separate trespass of the Company, the injury must have arisen directly and proximately from some neglect of the Company. Or, in other words, the neglect of the Company must have been the effective cause of the injury.
    But in the absence’ of any such gross neglect, in the absence of all willful and wanton conduct of the Company’s servants, the cars running in a lawful and usual way, the present is a case eminently fit for the application of the rule contended for.
    But in this case the neglect of a third pterson contributes proximately to the injury. This neglect, therefore, is the moving, the effective, the responsible cause — the causa causans — of the accident. And the court below misled the jury in refusing the instructions asked for. — 7 Gray, 100; Ibid. 104; 4 C. & P. 263.
    2. But there is another ground on which Lehey was not entitled to recover. That ground is found in the relation in which Hidden and Lehey stood at the time of the accident. Hidden was on the premises of the company, executing a contract with them. Lehey was an emjffoyee of Hidden in the contract. TJnder these circumstances, Lehey stands on the same footing as Hidden, and, if the fault of Hidden contributed proximately to the accident, Lehey cannot recover.
    Lehey goes on to the railroad premises under the license of a contract. Otherwise he would have been a trespasser. He is injured by an accident arising in the lawful and usual business of the Company. The contract under which he was at work related immediately to that business. He was engaged in sawing and piling wood, near a side track, along which trains came daily to get that very wood. All parties who came on to the. premises under that contract, came under the risks and obligations which that contract contemplates.
    But it will be said that there is no privity of contract between Lehey and the Company. That is true. But it does not follow, therefore, that Lehey is unaffected by the contract.
    If he engages under the contract, there arises an identity between him and his employer to a certain extent in the business. And if his employer’s neglect in the conduct of the work brings directly upon him an injury, that neglect is his own so far as third persons are concerned. His redress is against his employer. — 8 M. G. & S. 116 ; 30 Barb. 229, 235.

      W. Gray & T. Romeyn for defendant in error:
    We concede that the Company would not be liable for an injury to one employee occasioned by the fault of' another employee engaged in the same business. But this rule has no application, for Lehey was not an employee of the Company. — Redf. on Railw. 390; Pierce on Railw. 299 ; 30 Barb. 229; 19 N. Y. 127; 4 Seld. 175.

    The case cited from 8 M. G. & S. indeed holds, that where an injury was done a passenger through the mutual fault of the driver of the omnibus in which he was riding, and the driver of another omnibus, the passenger could not recover against the owner of the omnibus in which he was not riding'.
    The decision was well enough, for plaintiff there was himself as much in fault as the driver. It is also sustainable on principle if we admit that the passenger, by taking that particular omnibus, assumed its control, or made the driver his agent. But on the notion of the plaintiff being identified with the management of the omnibus, and thereby losing, under the circumstances, the right of recovery, the case is not sustainable on principle, and in this view has been overruled in N. Y. — 19 N. Y. 342; 20 N. Y. 492.
    In any view, the present case is distinguishable. There the plaintiff was injured while in the very act of using the agency of the omnibus. Here, the plaintiff had no connection with the act of his employer in hauling the wood, or in placing or in using the plank. His sole employment was, as a day laborer, to receive the wood when sawed, and pile it.
    There was no privity of contract between Lehey and the Co.; and even if there was any assumption of risks as between Lehey and Hidden, the Company cannot avail itself of the benefits thereof. — 30 Barb. 235.
    The Company owed the same duty to Lehey as to any other stranger; and, if they were in fault, and he not, cannot escape by saying another stranger was also to blame. While faultless himself, the plaintiff has a remedy against one, or all, whose wrong caused the injury. — 20 N. Y. 492.
    Even if Hidden himself was the party injured, the charge asked by defendants would be incorrect. The plank was not thrown on the track as the train approached. The agents of defendants might have seen this if using-proper care. Hidden’s conduct was not the immediate, direct, proximate cause of the injury; at least, it might not be; and it would be a question for the jury under-all the circumstances.

      The charge given was the law, and the entire law applicable. — 13 Geo. 86; 24 Vt. 487; 18 N. Y. 248, 423. But this view is not very material, for Lehey did not place the plank, did not know it was there, and it was not placed in connection with his employment or occupation.
   Campbell J.:

The defendant in error brought an action in the Court below to recover damages for an injury sustained by reason of the cars of plaintiffs in error running off from a side track into their woodshed, where he was at work under one Hubbard Hidden, who had contracted with the company to draw, saw and pile their wood, at Dearborn station, where the accident occurred. The side track was connected with the main track only at one end, and the accident was occasioned by a train of empty wood-racks backing in on this track, between the rows of woodsheds. Damages were recovered below, and the case comes up on some of the exceptions taken on the trial, no error being assigned except upon charges or refusals to charge.

The points made on the assignment of errors are connected in principle, and raise substantially the same question. There was evidence tending to show that the cars were made to run off the track by a plank laid down by Hidden between the rails, to aid him in drawing wood across the track. And it is upon the hypothesis that this may have been the cause of the accident that charges were asked which the Court refused to give without certain modifications; and exceptions were taken to the decisions. Hpon the other exceptions no errors are assigned, • and they become immaterial for the purposes of this case.

The plaintiffs in error (the defendants below) requested the Court to charge the jury,

“1st. That the plaintiff and his employer, Hidden, while working on the premises, were bound to use the same ordinary care against accidents to themselves as was incumbent on the defendants; and if the neglect of plaintiff or Hidden, in the course of their work under said contract, contributed proximately to the accident in question, the plaintiffs can not recover, unless the conduct of the defendants’ servants was wanton or wilful.

2d, That, if the jury find that Hidden, plaintiff’s employer, in the course of his work under said contract, placed a plank on the said side track, and that thereby the cars of defendants were thrown off and ran against the woodshed, that this was neglect on the part of Hidden, which contributed proximately to the accident, and that plaintiff can not recover, unless the conduct of defendants’ servants was wanton and wilful.”

The Court declined so to instruct the jury, except with the qualification that it must appear that the plaintiff knew of Hidden’s placing such obstruction on the track, and exposed himself to the danger.

The question whether the Court erred in its ruling involves to some extent an inquiry into the doctrine relating to liability where there is negligence in different parties, and also the rules which govern among parties engaged in a common pursuit.

Where no other considerations interfere, it is a well settled rule that a person who has by his own negligence so far contributed to the injury done him that he might, by the use of ordinary diligence or care, have avoided it, he has no right of action: — Butterfield v. Forrester, 11 East, 60; Marriott v. Stanley, 1 Man. & G. 568: Clayards v. Dethick, 12 Q. B. 439. It is unnecessary in the present ease to determine whether any less negligence will deprive of that right, because, so far as the rule is applicable at all in the case before us, it depends on the direct negligence of Hidden. The theory upon which the charge was asked, assumed the accident to have been the result of Hidden’s act in laying the plank where he did, and of course, upon that theory, lie directly contributed to that result. And had Hidden been the person injured, it must— without any reference to the question of his employment— have been a complete defense to his action should the jury have found such to have been the facts. Upon the question of fact there was enough to go to the jury; and therefore a charge might properly have been asked applicable to that hypothesis.

The question then arises, whether Leahey was by his employment in any way deprived of the right to recover for an injury to which Hidden directly contributed.

The law may now be regarded as settled, that a master Is not liable to a servant for the neglect of his fellow servants in doing or omitting to do their portion of the common work. He is only liable where his own personal neglect has directly contributed to the injury, or where he has not used ordinary diligence in employing competent servants: — Wiggett v. Fox, 36 Eng. L. & Eq. 492; Tarrant v. Webb, 37 Eng. L. & Eg. 281; Degg v. Midland Railway Co. 40 Eng. L. & Eg. 376; Skip v. Eastern Counties Railway Co. 24 Eng. L. & Eg. 396 ; Hutchinson v. Railway Co. 5 Exch. 343 ; Wigmore v. Jay, 5 Exch. 354; Harwell v. Boston and Worcester R. R. Corporation, 4 Metc. 49; Hayes v. Western R. R. Corporation, 3 Cush. 270.

The reason of the rule appears to be, that the master or employer for whose benefit work is undertaken can not be regarded as contracting for anything more than his own personal care and diligence, and if he acts in good faith, the servant must run all those risks which may arise from others neglecting their duty. It must always be presumed that a master gives proper directions to his servants: — Scott v. Mayor of Manchester, 38 Eng. L. & Eq. 477. His own interest would usually remove any contrary presumption. And there is no want of equity in requiring a servant to assume these risks. He has equal means of observing and guarding against impending danger with the master, and usually better opportunities.

The rule is not confined to cases of actual employment. Any one who undertakes to perform these duties places himself for the time being in the same condition as if actually emyloyed. The risks attendant upon the service from the neglect of those actually employed, attach to all who undertake the service, whether as volunteers or by actual hiring: — Degg v. Midland Railway Co. 40 Eng. L & Eq. 376.

Leahey was not directly employed by the Company. Had he been so employed, there could be no doubt of the application of the rule. This was conceded by counsel on the argument, and could not well be questioned. But the reason of the rule depends more upon the fact of doing the work than upon the mediate or direct nature of the hiring. It is a risk incident to the work-, and that risk in no way depends of necessity upon the form of the contract, if the work is done for the same general purpose, although different contractors may be employed for different parts by the general principal. Accordingly in Wiggett v. Fox, 36 Eng. L. & Eq. 486, where a servant of one contractor, engaged in piece work connected with waterworks at the Crystal Palace, was killed by the negligence of servants of the principal of their own employer, that principal was held not to be liable, and his exemption was based on the rules deduced from the authorities applicable to fellow - servants. Any other rule would be based on distinctions more technical than real.

It can make but very little difference whether Hidden and Leahey should be called or considered as servants of the Railroad Company in the technical sense of the term, or as separate contractors. They were employed in the same job. If Hidden be considered as an independent contractor, it is very well settled that his employer is not responsible for his acts done in carrying out a lawful contract, and could not therefore be responsible for the act in question, if done or directly occasioned by him. Whatever possible restriction may exist as to strangers, under circumstances where work is done on the principal’s premises — a point not now before us — no question could arise in favor of an employee of the contractor, who looks immediately to him as a principal. He knows or is bound to know the necessity of care and prudence in all parts of the undertaking, and knows therefore that his employer and his co-laborers are and must be relied upon to do their work, without endangering or interfering with others. This is a duty which attends every such undertaking, and forms a part of every contract, whether of hiring laborers or of bargaining with another who must hire them. If the contract or labor be lawful, and due care is had — as must be presumed — not to select incompetent or reckless men, the ultimate employer or owner of the enterprise has done all in his power to ensure the safety of those who may engage in any capacity in furthering it. Each one has a right to expect from the rest the same degree of care, whether hired by the owner or contractor; and if any failure occurs in this regard, and there results an injury to any of them, the reasons which apply among fellow-servants, to restrain them from an action against the master, apply with increased force where the ultimate employer has no control over the contractor or his subordinate employees in the process of their work, and where, therefore, as a matter of fact, their negligence is in no way to be traced to him. We regard the whole subject as resting upon the same foundation; and as requiring recourse to be had against the persons guilty of actual negligence, where they and the party injured are .employed in a common enterprise for the same purpose, and where in pursuing their several duties any risk would naturally arise to the one from the negligence of the other.

Whether passengers in a vehicle, owned and conducted by others, are identified with them in their negligence, is a very different question from that which arises where there is an employment for service; and it is not necessary to consider how far such cases as have decided that point are to be followed. The decisions upon the rights and liabilities arising out of engagement in a common service rest on principles of their own, arising from general policy; and they have been made in view of the injustice of compelling employees to answer for that which their own care can not prevent, to those whose opportunities for self-protection are as great, and usually much greater. The few cases in which persons are held to a responsibility more or less in the nature of an insurance, are mostly, if not entirely, founded on a presumption of superior means of knowledge and control, of that from which, or from the mismanagement of which the danger arises. The law has rarely if ever imposed these extraordinary liabilities without some strong reason.

I think the instructions asked for were no broader than the plaintiffs in error were entitled to, upon the hypothesis claimed. I think a new trial should be granted.

Manning J. concurred in this opinion.

Christiancy J.:

I have not been able to concur. in the opinion of my. brother Campbell in this case.

Hidden had taken a contract of the Company, for drawing, sawing and piling their wood at the station. Leahey was at work for Hidden by the day in piling the wood as it came from the saw. It does not appear that he had any thing to do with the drawing, or any knowledge of the mode in which it was drawn across the track. It is not claimed that he was in any sense the servant or employee of the Company, or that there was any privity of contract between him and the Company. The rule therefore that the master is not liable to his servant for an injury arising from the negligence of his fellow-servant, has, I think, no application to the case.

Where one man enters into the service of another to perform a particular kind of work, he is very properly held, as between himself and his employer, to assume the natural and ordinary risks incident to such service, arising from, the negligence or misconduct of his fellow-servants, as well as other risks not arising from the fault of the employer: and if the employer has acted in good faith and with ordinary care and prudence in the selection and employment of fit and competent servants, he should not be held liable to one of them for an injury arising from the negligence of .his fellow-servant: because it is fair to presume that the compensation was fixed with reference to such risks. But I am entirely unable to see how this consideration can shield other parties not in privity of contract with the person employed, from responsibility for injuries caused by their own negligence or that of their servants in transacting their business.

As against all other parties except those who are privies to the. contract, it is fair to presume that the servant did not intend to relinquish his right to compensation for injuries he might suffer from their negligence or misconduct; as to these the employer could have no interest in requiring such relinquishment, and consequently the compensation for the service can not be supposed to have been fixed with reference to them. I therefore concur entirely in the views expressed by the Supreme Court of New York in Young v. New York Central Railroad Company, 30 Barb. 234 and 235, that the exemption of the employer from liability for injuries caused by one fellow-servant to another, rests solely upon privity of contract, and can not enure to the benefit of other parties. Neither Hidden nor Leahey was properly the servant of the company; certainly not the latter. There was no privity on the part of the Railroad Company with this contract of service between Hidden and Leahey^,

This is not like the case of Wiggett v. Fox, 36 Eng. L. & Eq. 486, upon which much reliance has been placed.. In that case, it is true the injury was caused by the negligence of the immediate servants of the defendants, general contractors for the erection of a building', while the person injured was more immediately employed by a sub-contractor in piece work ón certain parts of the building. But the defendants retained a direct control over those employed by the sub-contractor, and this consideration is declared to be the test whether the case falls within the rule exempting the employer for injuries to one servant caused by the neglect of his fellow-servant. There were also peculiar provisions of contract between the defendants and the sub-contractor, for payment by the defendants of persons employed by the sub-contractor. The case therefore falls substantially within the rule exempting the employer from liability for injuries by one fellow-servant to another, and there would seem to have been some features of the case nearly equivalent to a privity of contract: and the immediate servant of the defendants by whose negligence the injury was caused, and the person injured, were both engaged in performing one general contract, though on different parts of it.

But it does not appear that the Railroad Company in this case retained any control over the employees of Hidden, nor that they had any concern with the payment of Leahey. Nor do I think that Leahey, who was employed by Hidden to pile wood as it came from the saw, can be said to be employed in a “ common work” with the immediate servants of the Railroad Company engaged in running the cars on the road.

Leahey was not the master but the servant of Hidden, and had no control over his acts; and least of all over his acts in the drawing of the wood, which does not appear to have come within the sphere of his employment. To hold him liable, therefore, for Hidden’s negligence in drawing the wood, more than for the negligence of a mere stranger, would be to reverse their positions, making the master the servant and the servant the master — a result as illogical as unjust.

I can therefore see nothing in the relation between Leahey and Hidden, or between either of them and the company, whieji can justly render Leahey responsible for Hidden’s negligence, or absolve them from the observance of ordinary care toward Leahey, or shield them from responsibility for an injury done him through the negligence of their servants in running the cars. If Hidden in drawing the wood had negligently left the plank near the rail in a position likely to throw off the cars, the defendants had the right to put a stop to such negligence on his part; but there is nothing in the case to show that Leahey had such right, nor that he had any notice of the fact; while there is evidence from defendant’s witnesses, uncontradicted and unimpeached, that one .of their servants had seen it and notified the station master of the fact. The defendants, therefore, through their servant and their agent, the station master, were aware of the danger, while, so far as appears, Leahey was ignorant of it.

It was urged by the counsel for the plaintiffs in error, that if the cars were thrown from the track by the plank negligently left by Hidden, then his negligence must be considered the proximate cause of the injury, and therefore that the right of action was against Hidden alone. I have not been able to see the force of this objection. Admitting that the plank, thus negligently left, threw the cars from the track, it does not follow that this was the proximate cause, or any cause, in a just legal sense, of the injury to the plaintiff below; for if, by the observance of ordinary care, the cars, after being thrown from the track, would not have thrown down the shed or inflicted the injury upon the plaintiff, then, certainly, the want of such care must be recognized, if not as the sole, at least as the proximate cause of the injury. And whether the negligence consisted in not observing, or not removing the plank, or in running at too much speed, or in not reversing the engine or putting on the brakes with sufficient promptness, either before or after the wheel was diverted from the track, yet if with the observance of ordinary-care, the injury would not have happened,* then the want of such care on the part of the company, or in other Words, the negligence of the company through their servants within the line of their service, must, I think, be recognized as the more immediate or proximate cause of the injury, of which Hidden’s negligence was the more remote cause.

I have not been able to see how the negligence of Hidden could justify the company in being negligent also, or absolve them from responsibility for an injury, caused by such negligence, to the plaintiff who was chargeable with no want of care on his own part. There is no evidence tending to show negligence on his part, and it is not denied that the question of his negligence was fairly left to, and negatived by the jury. Yet upon the principle of the request to charge, no degree of negligence on the part of the defendant’s servants, in running the cars, would render the company liable for the injury to him.

The Court were requested to charge that, if the cars were thrown from the track by the negligence of Hidden, the plaintiff could not recover, unless the conduct of defendant’s servants was wanton or wilful. The counsel for plaintiff in error admits in his brief and his argument they might have been liable for gross negligence; and if this be so, the jury might perhaps have found this gross negligence,, in view of the evidence that the station agent had been informed of the position of the plank, without removing it. The charge asked would have been equivalent to an instruction that the company could not be held liable at all;, for, if the conduct of their servants was wanton or wilful, the company could not have been held responsible for the injury, unless a different rule is to be applied to railroad companies from that which the law applies to other parties ; as such wanton or wilful conduct would be beyond the scope of their employment. But upon principles of public policy, to secure the enforcement by the master of the observance of ordinary care in Ms servants to avoid injury to others, the law holds the master liable for injuries occasioned by the negligence of his servant in performing the service or business of the master. And on the score of public policy, I think it would be unwise to relax the rule of responsibility in favor of railroad companies, when the very nature of their business, without the observance of at least ordinary care in running their cars, is peculiarly calculated to endanger the lives and limbs of persons near the track. They should, at least, be held to as strict a rule as other parties engaged in business less dangerous to others. But the same rule recognized as applicable to others, is, I think, sufficient to render them liable for the injury in this case, if with the observance of ordinary care on their part it would have been avoided.

I think the charge of the Court below was in all respects correct; that the instructions asked for were properly refused, and that the judgment should therefore be affirmed.

Martin Ch. J. concurred in this opinion.

The Court being thus equally divided, the judgment of the Court below stood affirmed.


author: The Court Manning J.

text:
    In the Matter of John Morton.
    On Habeas Corpus, where tlie petitioner is held by virtue of a commitment fair on its face, and charging him with contempt of court in refusing to give evidence, it is competent for him to go behind the commitment and show that the court committing him had no jurisdiction of the proceeding in which he was called as a witness.
    A complaint under §9 of the Prohibitory Liquor Law, [Comp. Z. §1667] which does not set forth any facts or circumstances, but merely states the belief of the complainant that the person complained of basP between certain specified days, sold liquors in violation of the act, is not sufficient to confer jurisdiction upon the justice to whom it is made to issue subpoenas and compel the attendance of witnesses to testify concerning supposed violations. And, consequently, a witness attending on such a subpoena, and refusing to testify, cannot be committed for contempt of court in so refusing.

      Heard May 14th.

      Decided May 15th.

    Habeas Corpus.
    The petition set forth, that on April 26th, .1862, the following complaint was made, and filed with W. W. Mitchell, a Justice of the Peace of Ionia county:

      ‘■'■State of Michigan, County of Ionia, ss.: Alexander F. Bell, being duly sworn, says, that he is a resident of the township of Ionia, in said county, and that he verily believes that Giles B. Conkey did, at the township of Ionia aforesaid, between the fifteenth day of April, 1862, and the twenty-sixth day of April, 1862, sell intoxicating liquors, in violation of an act entitled “An Act to prevent the Manufacture and Sale of Spirituous or Intoxicating Liquors as a beverage,” and that he is unable of his own knowledge to state sufficient facts and circumstances to authorize the issuing of a warrant.
    Alexander F. Bell.
    Subscribed and sworn to before me this 26th day of April, 1862.
    W. W. Mitchell, Justice of the Peace.”

    The petition further states, that thereupon the Justice issued a subpoena, commanding petitioner to aj>pear and give evidence touching said complaint; that he appeared in obedience thereto, and having been sworn, was asked the following question: Whether he knew of Giles Conkey having, at any time between the 13th and 26th days of April instant, himself directly or indirectly sold any spirituous or intoxicating liquors in the village of Ionia? Which question petitioner refused to answer; whereupon the justice proceeded to impose upon him a fine of ten dollars, and issued a warrant for his commitment to the county jail, until the fine should be paid, or until the expiration of thirty days.
    The imprisonment under this commitment was alleged to be illegal, for the reason, among- others, that the complaint was not sufficient to confer jurisdiction upon the magistrate; and the whole proceeding was therefore void.
    The sheriff returned the commitment as his authority for the detention.

      C. I. Walker and G. V. N. Lothrop for petitioner,
    to show want of jurisdiction in the justice, offered to read a certified copy of said complaint, which was objected to by counsel for the People, on the ground that it was not competent to go behind the commitment — which was claimed to be fair on its face — to inquire into the correctness of the justice’s action. But the court held otherwise, and the evidence was read.

      A. Williams and D. E. Harbaugh for the People.
   The Court

held the complaint not sufficient' to confer jurisdiction. The statute (§ 1667) provides that, whenever a complainant is required to state facts and circumstances for the information of the court or magistrate to whom the complaint is made, and the complainant shall be unable, of his own knowledge, to state sufficient facts and circumstances to authorize the issuing of a warrant, the court or magistrate may, after the making of such complaint, issue subpmnas for the attendance of witnesses to testify concerning such facts and circumstances. This language does not authorize the making of a complaint in general form, and the issuing thereupon of subpoenas to compel witnesses to testify to facts and circumstances which are not indicated by the complaint, but which may be suspected to be within the knowledge of the witnesses. The statute requires that the facts and circumstances shall be set forth in the conqilaint, whether the complainant can substantiate them by his oath or not. If he cannot, subpoena may be issued to compel the attendance of witnesses to testify concerning such facts and circumstances as are thus set forth.

Manning J.

dissented, holding that the prisoner had no right to set up the objection to the complaint, he not being a party defendant; and also that the commitment could not be impeached.

Prisoner discharged.


text:
    In the Matter of Frederick Hall.
    [The preceding case In the matter of John Morion affirmed.]
    Where a witness is committed, until he shall submit to answer, he is entitled, to discharge when the proceeding is discontinued. (Per Manning J.)

      Heard May 14th.

      Decided May 15th.

    Habeas Corpus. The petition showed that, on a complaint being made before a justice of the peace under section 9 of the Prohibitory Liquor Law, petitioner was subpoenaed as a witness to lay the foundation for 2R-’ocess against the person complained of; that a question was put to him which he refused to answer; whereupon the justice issued his warrant, committing him to the common jail until he should submit to answer the question, and he discharged by due course of law. The j^tition further showed that on issuing this commitment all further proceedings on the complaint- were discontinued. The complaint was the same set forth in the preceding case of John Morton.

    The sheriff having returned, the commitment as his authority for detaining the petitioner in custody,

      G. V. N. Lothrop and C. I. Walker, for the petitioner,
    presented affidavits to substantiate the statement in the petition of the discontinuance of proceedings on the complaint. They also further introduced the same proceedings and relied upon the. same objection as in the preceding case of John Morton.

      D. E. Harbaugh and A. Williams, contra,
    objected to the reading of these affidavits and proceedings, and insisted further that no adjournment of the inquiry was necessary; and that it continued open.
   The Court

allowed them to be read, and ordered the petitioner discharged; holding that the Justice obtained no jurisdiction, because the complaint did not set forth facts and circumstances, and therefore there was nothing to authorize the examination of witnesses.

Manning J.

was of opinion that the commitment was correct, and that the witnesses subpoenaed to testify in such cases could not raise the question of the sufficiency of the complaint. But he concurred in discharging Hall on the ground that the proceedings before the Justice had become discontinued, and that the commitment would not authorize an imprisonment when the prisoner could not have an opportunity to purge his contempt by answering.

Prisoner discharged.