author: Manning J.: Martin Ch. J.:

text:
    Thomas Chilvers v. The People.
    The ordinance of the Common Council of Detroit which provides that no%>ersoa shall keep a ferry or "boat for transporting persons and property acros3 to the Canada shore without a license therefor from the Mayor, and imposes a penalty for its violation, is a valid ordinance.
    The city of Detroit may lawfully charge a license fee with a view to revenue for the keeping of such a ferry.
    Such a license fee is a price paid for a franchise, and not a taco within the meaning of that term as used in the Constitution of the State and the oharter of said city.
    Nor is it a regulation of commerce within the meaning of the Constitution of the United States. And therefore persons keeping a "boat for transporting persons and property from Detroit city to the opposite shore without such license, may "be lawfully punished therefor under such ordinance notwithstanding the boat is enrolled and licensed for the coasting and foreign trade under the laws of the United States.

      Heard May 23d and 24th.

      Decided November 18th.
    Error to the Recorder’s Court of Detroit, 'where plaintiff in error was convicted on a complaint for a violation of an ordinance of said city relative to ferries, approved July 24, 1861. The case was submitted in the Court below on the following stipulation as the sole evidence:

      “ The People v. Thomas Chilvers. It is hereby stipulated to be used in evidence on the trial of this case, that at the time mentioned in the complaint, the defendant was captain of the Gem, a steamboat used and employed in the-business of carrying passengers and property from Detroit to Windsor in Canada, a village opposite to said city,, and sometimes engaged in carrying passengers and property to Fort Wayne, in Wayne county, Michigan, in towing-vessels, and in going to any part of the river where she may be hired to run.
    That the Gem is a United States vessel, owned in the United States, and above the burden of twenty tons, enrolled and licensed for the coasting and foreign trade under and by virtue of the laws of the United States.
    That the boundary between the United States ^md Canada is midway through the Detroit river.
    That the Gem and her officers are subject to all the lav^i regulating customs, both in Canada and the United States; that by said laws they are obliged to report all goods transported at once to the Custom House Department, and only to discharge at such times and such places-as said, officers permit.
    That a Custom House officer is on each dock, in Canada and Detroit, to see that the laws are enforced.
    That the owners of said Gem pay $100 for the privilege of landing at a private wharf in said city, from now until the first of April next.
    That said Gem carries the light required by the act of Congress, and that no license has been paid to said city since said ordinance was passed.
    Wm. J. Speed, City Attorney.

    John S. Newberry, Att'y. for Deft.

    Nov. 8, 1861.”
    Upon this evidence, under the charge of the Court,, the jury returned a verdict of guilty. Exceptions were-taken to the rulings of the Recorder, but they are not. .given here, as the questions arising upon them sufficiently •appear by the opinions.

      Newberry & Pond, for plaintiff in error:
    The ordinance in question is not within, the power of •the Common Council, is unreasonable, and therefore void.
    By law the Council has the power to “license, con■tinue and regulate,” &c. The power granted doe's not authorize the prohibition. When the Legislature wish to •authorize the prohibition, they do so in express terms.
    The license fee is a tax. It is not based upon any ■idea of benefit to the person taxed, and is therefore unjust: 2 Mich. 567. Corporations can not impose a burden without a benefit: — 16 Pide. 125; 10 Wend. 102. It is ■unreasonable because in restraint of trade and business; because a private dock must still be paid for the privilege ■of landing; because no property of the city is used, and •therefore no reason why the owner of a boat should pay a license merely for keeping it, any ■ more than the owner of a steam engine, or other personal property; because the owner already pays a tax upon it as personal property; because unreasonably unequal, since a boat running to Canada ought no more to pay than one running to Wyan-. dotte or Cleveland; because the paying of a license promotes in no manner the health or good morals of the people, and is not a reasonable exercise of the police .power-: — 2 Dutch. 298.
    2. The word license simply means permission, and the power to license does not import the power to exact a fee therefor: — 2 Halst. 64; 3 Strobh. 599; 9 Wheat. 190, 213; 5 Hill, 211; 5 Cow. 462. A license fee is a tax: 31 Penn. St. 17; 3 Ala. 137; 12 Wheat. 419; 7 How. 408, 446, 458; 11 G. & J. 406. The charter giving power to levy a tax on property is equivalent to saying • it shall not be levied on any thing else: — Broom’s Max. 278; 33 N. H. 430; A. & A. on Corp. 177; 2 Dutch.
      298; 2 B. Monr. 134. By the Constitution taxes are to be uniform, and levied upon property. It is therefore unconstitutional to exact a license tax.
    3. The ordinance is in violation of the Constitution of the United States, which vests in Congress the sole power to regulate commerce with foreign nations : — 9 Wheat. 189; 7 How. 392; 14 How. 573; 3 Cow. 743; 14 Pet. 570; 5 Wheat. 23; 12 Pet. 446; 15 Pet. 511; 11 Pet. 158; 12 Wheat. 419; 3 Strobh. 599; 1 Newb. Ad. 551; 18 How. 429. Theenrolment and license authorize the vessel to be employed in the foreign and coasting trade: —Bright. Dig. 143, § 22; 4 Stat. 487; 9 Wheat. 212; 6 McLean, 240; 3 Cow. 716; 32 Me. 362; 14 How. 575. And no State can retard, burden or limit the right thus conferred by Congress: — 12 Wheat. 447; 4 McLean, 293; 3 Mich. 235. And see 9 Wheat. 212-15; 1 Humph. 156; 4 Hill, 209.

      T. McEntee, City Attorney of Detroit, for the People:
    The right to grant a ferry franchise is a sovereign prerogative, always claimed and exercised by the States. It is a part of the police power of the States, never surrendered by them, nor claimed by the General Government:— 8 How. 569; 10 How. 533; 23 How. 435; 9 Wheat. 1.
    The jurisdiction of the State extends to the center of the Detroit river. So far her power to regulate ferries can not be questioned: —11 Wend. 586. It is not necessary that the State should control the landing on the Detroit shore: — 6 B. & C. 703; 11 Wend. 590.
    Enrolment and registry are intended to confer on vesssels a national character for commercial purposes: — 9 Wheat. 1. They do not confer any exemption from the police regulations of the States. The license in this case is to be employed in the coasting or foreign trade. We concede-that the right to regulate commerce includes the right to regulate navigation; and that the transportation of passengers falls within this power. But the conveyance of passengers from a foreign country to the United States, in the ordinary operations of foreign commerce, or their transportation from one State to another in the operations of a proper coasting trade, is a very different matter from the running of a ferry for carrying them.
    The legislation of Congress and the decisions both of the 'State and National courts, lead to the same conclusion, that ferrying is viewed as distinct from commerce. See 6 Penn. L. J. 132; 16 B. Monr. 799, 802; 9 Wheat. 203, 204; 11 Wend. 586; 16 How. 534. Also 1 Stat. 305; Bright. Dig. 855, § 40.
    The exercise- of the right to engage in commerce, and the protection of that right under the Constitution of the United States, are subordinate to the right of the State to protect its property and enforce its police regulations; and this principle extends to cases other than those of ferries, which involve more fully and directly an apparent interference with the privileges claimed under licenses to vessels. See cases of fisheries, 18 How. 74; 3 Gray, 271; State pilots, 12 How. 300; tax on passengers, 11 Pet. 102; 7 How. 283; erection of bridges, 6 McLean, 70; sale of liquors, 5 How. 504; lights in harbors, 21 How. 847.
    The power to regulate commerce with foreign nations is the same as the power to do so among the several States. Therefore if a State can not regulate ferries between her own shores and a foreign country, she can not between herself and another State. But that she may in the latter case is settled by general usage, and recognized in 8 How. 569; 16 How. 525; 23 How. 433; 11 Wend. 590; 4 Zab. 206; 16 B. Monr. 699.
    But if the power was in Congress, the States might exercise it until such time as Congress should pass some law on the subject: — 15 B. Monr. 699; 2 Pet. 245.
   Manning J.:

Chilvers, the plaintiff in error, was prosecuted in the Recorder’s Court of the city of Detroit, under a city ordinance, for keeping a ferry over Detroit river, between the city and Windsor on the opposite side of the river, in Canada, without a license from the city for that purpose, and was fined one dollar and the costs.

Several objections are taken to the proceedings before the Recorder.

The first objection relates to the form of the complaint; but as that has been waived we shall pass over it without further noticing it, and proceed to the consideration of the several objections going to the merits of the case.

The first of these .objections is a want of power in the Common Council of the city to pass the ordinance in question.

By the charter power is given the Common Council to license, continue and regulate so many ferries from within said city to the opposite shore of the Detroit river as shall seem most conducive to the public good:— Laws of 1857, p. 95, § 21, 6th.

The first section of the city ordinance provides that no person shall keep a ferry or boat for carrying and transporting persons and property across the Detroit river to the opposite shore without a license therefor from the Mayor.

By the second section, the Mayor is authorized to grant a license to any person or company, to keep a ferry or boat to carry and transport persons and property across the river to the opposite shore, on his or their paying into the city Treasury the sum of fifty dollars for each boat which carries and transports passengers, teams and animals, and the sum of twenty-five dollars for each boat which carries and transports passengers only, &a.

And by the eleventh section, any violation of or failure to comply with any of the provisions of the ordinance, is to be punished by a fine not exceeding $200.

It is argued that the power granted does not authorize the prohibition. That is, if we understand the proposition advanced by counsel, that the power given by the charter does not authorize the Common Council to pass a by-law that no person shall keep a ferry without a license. That the Common Council may license a ferry, but that they cannot prevent any one keeping a ferry without a license.

The object of a license is to confer a right that does not exist without a license. And consequently a power to license involves, in the exercise of it, a power to prohibit under a pain or penalty without a license. Otherwise a license would be an idle ceremony — giving no right, conferring no privilege, and exempting from no pain or penalty. If the right existed previous to the law requiring the license, it would not exist afterwards without such license. The fact that a license is required to do an act, is of itself a prohibition of such act without a license. In prohibiting the keeping of a ferry without a license, the ordinance only follows what has been the statute law on that subject from 1827 to the present time, and how much longer we know not:— Laws of 1827, p. 463; Laws of 1833, p. 522; R. S. of 1838, p. 132; R. S. of 1846 p. 141; Comp. L. p. 375.

' The next objection is want of power in the city to charge a license fee of $50, or any other sum for the license. It is said the power to license does not carry with it a power to charge for the privilege conferred by the license. That a sum sufficient to cover the cost of making out the license may be charged, but nothing more.

The charter is not silent on this point. By it the Common Council are authorized to “direct the manner of issuing and registering the same (the license), and to prescribe the sum of money to be paid therefor into the treasury of the corporation:” — Laws of 1857, p. 107, 63d These last words — to prescribe the suin of money to be paid therefor into the treasury of the corporation — we think Show a clear intent to make licenses a source of revenue to the city. And we see nothing unreasonable in the amount charged as a license fee.

But it is said the license fee is a tax. It is not a tax, within the meaning of that term as used in the State Constitution (Art. 14, §11), and city charter (Laws 1857, p. 107, 64th). It is a price paid for a franchise or public right vested in an individual. Bouvier in speaking of franchises says: “The most common are the grant of a right or privilege of making roads, bridges, establishing ferries, and taking toll for the use of the same:” — 2 Bouv. Inst. p. 214.

The only remaining objection, and the one most relied on for a reversal of the judgment, is, that the license fee is a regulation of commerce within the Constitution of the United States, which gives Congress power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes: — Art. 8, § 3.

In Gibbons v. Ogden, the power of Congress under this clause of the Constitution was stated in the broadest terms. Not that it was necessary to the decision of that case, but in the argument of the Court in support of its decision. And yet it was conceded by the Court in that case that it did not extend to inspection laws, quarantine laws, turnpikes, ferries, &c.: —9 Wheat. 203. And in The City of New York v. Miln, 11 Pet. 133, the concession made in that case was referred to with approbation by the same Court. The question was whether a statute of the State of New York requiring under a certain penalty the master of every vessel arriving from a foreign port, within twenty-four hours after his arrival, to make a report in writing, containing the names, ages, and last legal settlement of every person on board, was a regulation of commerce within the Federal Constitution. It. was held to-be a police regulation of the State only, and not within the power delegated to Congress. And in The People v. Babcock, 11 Wend. 586, it was held that the Common Pleas of Niagara county had power to grant licenses to keep ferries on the Niagara River, although the jurisdiction of' the State extended only to the center of the river; and that to maintain a ferry upon that river for transporting across the stream persons or goods for hire or profit, unless author-, ized in the manner prescribed by law, would subject the offender to punishment as for a misdemeanor.

The object of the constitutional grant is too obvious to be mistaken. It was not intended for the regulation of commerce within a State. This is universally conceded; and the power could not have been given without danger of' absorbing the legislative power of the States.

Roads, and bridges when a part of a public highway, and turnpikes within a State, are clearly subjects of local legislation. It is difficult to conceive of any more so. And. what is a ferry? It is a public highway or thoroughfare across a stream of water or river by boat instead of by a bridge. Now suppose no river separating the city of Detroit from Canada, and a turnpike running into the city from the boundary line between the two; and suppose further, that all commerce between the United States and a foreign country, where there is no stream of water or river separating the two, by an act of Congress was required to. be by a certain description of wagons licensed for the purpose; would any one suppose the owners of such wagons would have a right to enter the city from Canada by the turnpike without paying toll? Suppose the dividing line between Canada and the State to be the Canada shore of' the Detroit river, and the turnpike to cross the river by a bridge, could the bridge be crossed without paying toll? Now the ferry boat is as much a part of the ferry as the-bridge is a part of the turnpike. The one is stationary, while-'the other moves to and fro, it may be said. Is not the draw of a bridge, that is moved to and fro as a vessel or •la team may want to pass, as much a part of the bridge ’as the timbers that remain stationary? It is the same with the ferry boat. It is as much a part of the ferry as the landings on the shore. And as there can not be a whole without all its parts, there can not be a ferry without a boat.

The fallacy of the doctrine contended for consists in supposing that the license of a vessel for the coasting and foreign trade confers on it the franchise of a ferry.

Ferries are as clearly creatures of local legislation as roads and bridges. And the establishment and regulation *of them are as necessary for the convenience of the traveling and business public.

It is only that part of the ferry lying within the State the ordinance can control, except as a condition of the license the point of landing may be fixed on the opposite shore. It in no way interferes with vessels passing from one side of the river to the other, engaged in commerce under the laws of Congress.

The judgment of the Recorder’s Court must be affirmed.

Since drawing up this opinion we have seen the case of Conway v. Taylor, 1 Black, 603, decided by the Supreme Court of the United States at its last term, in which it is held that the authority to establish and. regulate ferries is not included in the power of the Federal Government to regulate commerce under the Constitution of the United •States.

Christiancy and Campbell JJ. concurred.

Martin Ch. J.:

The Gem is a boat duly enrolled and licensed under the laws of-the United States, for the coasting and foreign trade. That the regulation of such trade is exclusively within the jurisdiction of the United States will not be questioned. The power having been exercised in the case of the Gem, the license conveyed the right of engaging, in commerce to her as fully as to every other vessel or boat employed in foreign trade; and as the power to regulate commerce with foreign nations is exclusively in Congress, and has been exercised, no concurrent power exists in the State respecting it. These propositions are not questioned, but their application is denied in this case, because it is said the Gem is a ferry boat, and that ferries, are not within the jurisdiction of Congress. Now what is a ferry? It is a species of franchise, being a liberty or-privilege arising from grant or prescription, to have a boat or boats for carrying men and horses across a. river for-reasonable fare or toll (Burrill). If the river be a boundary between this and a foreign nation, I can not see why the ferriage is not foreign commerce, and exclusively within the jurisdiction of the United States. Commerce, says Mr. Justice Grier in the passenger cases (7 Howard), means something more than traffic — it is intercourse; and the power committed to Congress to regulate commerce is exercised by prescribing rules for carrying on that intei> course; and Mr. Justice McLean says it includes navigation and intercourse, and that the transportation of men is a part of commerce is not now an open question. In Gibbons v. Ogden, it is said that no clear distinction is perceived,, between the power to regulate vessels in transporting men for hire and property for hire; and that a power to regulate navigation is as expressly granted as if that term had been added to the word commerce. If therefore the United States had authority to grant a license .to the Gem, and under and by virtue of the laws of the United States such license has been granted, I do not clearly see how any license from the city of Detroit to do the same thing can be otherwise than wholly nugatory and inoperative. A license either conveys the right to do a thing or it conveys no-right; and if it conveys a right it conveys the whole right.

But it is contended by the attorneys for the People, that while they concede that the right to regulate com_ merce includes the right to regulate navigation, and that the transportation of passengers falls within this power, yet the conveyance of passengers from a foreign country to the United States, in the ordinary operations of commerce, or their transportation from one State to another in the operations of a proper coasting trade,- is a very different matter from the running of a ferry for carrying them. I can not perceive the distinction. The delivery of a cargo at a foreign port makes a foreign voyage; and Windsor and Detroit are, as respects each other, as much foreign ports as Boston and Liverpool. The length of the voyage has nothing to do with this question; and the Gem has, under her license and' enrolment, as just right to perform voyages from Detroit to Windsor as to Chatham or Quebec, and with the same privileges and immunities.

But it is said that the city of Detroit may license ferries at least as far as the center of the river, for her jurisdiction extends thus far; and that the ferry is in respect to the landing and not to the water; and that although a license to establish a ferry which does not extend across the river may be less valuable for that reason, it is not the less valid as far as it goes. To the first part of this proposition it is a sufficient reply, that the city of Detroit does not assume to grant licenses to ferry passengers to the middle of the stream, but to the Canada shore; and prohibits under a penalty the keeping a ferry or boat for the purpose of transporting persons and property across the Detroit river to the opposite shore without a license. If this be not a restraint upon foreign commerce, and an infringement upon the jurisdiction of the United States, I confess my inability to determine what is. And although there is good authority for saying that the ferry is in respect to the landing and not to the water, and the landing may belong to one and the water to another, and that though the license to establish a ferry which does not extend across the river may be less valuable for that reason, it is not the less valid as far as it goes (see People v. Babcock, 11 Wend. 586; Conway v. Taylor, 1 Black, 603); still I am at a loss to understand the reasoning which confines it to our shores, or that which applies it to a case of foreign intercourse and navigation. I can not conceive of a ferry without landings upon both banks of the river; and it is to my mind an absurdity to talk of a ferry which carries passengers to the middle of a stream and leaves them there, or returns them to the landing from which they were taken. A ferry is an entirety, and can not be divided by the thread of a stream. It must extend across or be no ferry. It is held in Peter v. Kendal, 6 B. & C. 703, that the owner of a ferry must, as an incident to the ferry, have such right to use the land on both sides as to enable him to embark and disembark passengers, but he need not for that purpose have any property in the soil, it being sufficient if he has a right to use the land for all the purposes of his ferry. How far this rule is applicable to ferries upon our interior rivers, forming the boundary line of States, it is •unnecessary to inquire; but it establishes the principle for which I contend, viz: that there can be no ferry which ■does not extend from bank to bank. I hold, therefore, that if the ordinance controls any part it controls the entire ferry, from bank to bank; for it prohibits landing and departure, and what is a ferry without these? It therefore controls and assumes to regulate commerce with a foreign nation, and is unconstitutional.

But it. is contended that the city may grant these .licenses as police regulations. I can not coincide in this view. To me the transaction seems to be only the sale of a franchise; a source of revenue from interference with commerce. It has no connection with the good order and security of the city or the citizen (however it may be in the case of judicious regulations independent of the franchise) — hut is entirely outsideand the police power ' of the city can not draw within its jurisdiction objects which lie beyond it, under this or any other pretence. It might, for any reason that I can see, assume as well to grant licenses to boats running to Malden or to Goderich as to those running to Windsor; for it is not the cargo, but the voyage, which determines the character of the commerce; and I can not well see how a voyage directly across a stream of water, if destined to a foreign port, is any more subject to the jurisdiction of the city than one up or down the .stream.

I refer, in further illustration of my views, to Sinnot v. Davenport, 22 How. 227; Foster v. Davenport, Ibid. 244; Prigg v. Pennsylvania, 16 Pet. 617; Fitch v. Livingston, 4 Sandf. 492.

I think the judgment ‘ should be reversed.

Judgment affirmed,»


source: Caselaw Access Project

author: Christiancy J.:

license: Public Domain

text:
    James M. Webster v. Bethuel Hitchcock, and another.
    Where a complainant in chancery dies, the suit is revived by an order substituting his representative as complainant; and no actual amendment oft the bill is required to give the order that effect.
    Where the subject matter of a suit in chancery is assigned by the .complainant* the suit can no longer be prosecuted in Ms name after the assignment is brought to the notice of the Court, and the only mode in which the assignee oan revive, or gel the benefit of the original suit, is by filing an original suit in the nature of a bill of revivor and supplement.
    A bill may be filed by the assignee for this purpose without the previous leave of the Court, and in the name of a new solicitor.
    An order striking a bill from the files is a “ final order/’ from] which an appeal may be taken to the Supreme Court.

      Submitted on brief of complainant October 29th.

      Decided November 25th.

      Appeal from Ionia Circuit in Chancery.
    The bill of complaint set forth: That on November 19, 1860, Hernán C. Palmer filed his bill against the defendants to foreclose a mortgage given by them: that defendants appeared, and no further proceedings were had prior to December 29, 1860, when said Palmer died, and Phebe A. Palmer was, in February following, appointed administratrix on his estate: that an order was made by said Court July 24, 1861, substituting said administratrix as complain, ant in the case, with leave to amend the bill by substituting her name as such, and she afterwards, in March, 1862, without having so amended the bill, assigned the mortgage to the present complainant. The bill then avers that complainant is entitled to have the original suit revived against the defendants, and to have the benefit thereof, and of the proceedings therein, and that for this purpose the present bill ought to be taken as supplemental to the said bill of Henry C. Palmer. And it prays for answer, andi that the said suit be decreed to stand and be revived accordingly, with leave to the present complainant to prosecute the same.
    The present bill having been filed without a prior order-of the Court granting leave, and being signed D. W. Jackson as solicitor, instead of Blanchard & Jackson, the solicitors: in the original suit, defendants made a motion that the bill be stricken from the files; which motion was granted by the Court. From this order the complainant appealed*

      D. W. Jackson, for complainant.
   Christiancy J.:

So far as the bill seeks to revive the original cause of Hernán C. Palmer, against the defendants, which had become abated by his death, it was- entirely unnecessary. The order of July-24th, 1861, substituting the administratrix as complainant, of itself, operated as a revivor: and no actual amendment was necessary to give it that effect. But by the assignment of all her interest to the present complainant after the suit was so revived, the assignee became a necessary party complainant, and the suit could no longer be prosecuted in her name after the assignment should be brought to the notice of the Court: — Wallace v. Dunn, Walk. Ch. 416. If the assignment did not operate strictly as an.abatement of the suit, its effect was much the same, 'as it left no party complainant before the Court competent to prosecute it. The only mode in which the assignee, the present complainant, could revive or get the benefit of the suit, was by filing an original bill in the nature, of a bill of revivor and supplement, stating the bill and proceedings in the original suit, and the assignment to himself, and asking that the suit might be continued or revived for his benefit.

So far as the present bill is confined to these objects it was the necessary and proper course to give him the benefit of the former suit. In these respects the bill is not a mere supplemental bill, but an original bill in the nature of a bill of supplement and revivor: — Daniel’s Ch. Pr. 1666, 1685 to 1688, Ibid. 1697 and 1698; Sedgwick v. Cleveland., 7 Paige, 293. So far as it is based upon and recites the original cause, it is in the nature of a supplemental bill: so far as it seeks to revive or restore the original cause which had become defective by the assignment of the interest of the administratrix, it would seem to be in the nature of a bill of revivor: but so far as it relates to the assignment and the present complainant, it is entirely original.

Being an original bill it did not not require the previous leave of the Court to its filing: — Sedgwick v. Cleveland, supra; and very clearly it was not necessary to be filed by the solicitors in the original suit, as seems to have been supposed by the defendants’ solicitor.

Whether the present bill would be sufficient on demurrer, as an original bill in the' nature of a bill of revivor mnd supplement, we do not undertake to determine, nor shall we consider any question which might have been raised upon the demurrer; the appeal having been taken from the order striking the bill from the files. This order was erroneous: and as it was a final disposition of the •complainant’s.bill, we think it must be treated as a “final order” within the meaning of the statute, from which com» plainant was entitled to appeal. The order must be vacated, and the cause remanded to the Circuit Court in Chancery for further proceedings, and the complainant is entitled to his costs on the appeal.

The other Justices concurred.


author: Manning J.:

text:
    Samuel Sellers v. John W. Botsford and others.
    Usury is a personal defense, to bo made by a party to the contract. One who has purchased land subject to the payment of a mortgage upon it, can not mate this defense to the mortgage.

      Submitted on briefs, October 17th.

      Decided November 25th.

    Appeal in Chancery from Livingston Circuit.
    Sellers filed his bill to foreclose a mortgage given to him by Samuel and Sarah Burley for money loaned. Bots-ford was made a defendant as subsequent purchaser. The ■defendants set up the defense of usury. It appeared in evidence that Botsford purchased the mortgaged premises •of the mortgagors, subject to the mortgage, and agreed to pay it up. The Circuit Court in Chancery granted ■decree in favor of complainant for the whole face of the mortgage. Botsford alone appealed.

      O. Hawkins, for complainant:
    The mortgagors not having appealed, Botsford can not make the defense of usury on his own behalf: — 2 Seld.
      352; 10 Wheat. 392; 7 Hill, 406; 7 Conn. 413; 1 Mich. 84; 3 Ala. 643.

      G. V. N. Lothrop, for defendant Botsford.
   Manning J.:

Conceding the usury set up in the answer, which we do-not think established by the evidence- — -the appellant, who is a subsequent purchaser of the mortgaged premises, can not avail himself of it as a defense to the mortgage, or turn it to his individual benefit. By tbe agreement between him and the mortgagor when he purchased he was to pay the mortgage. Its payment was a part of the consideration or purchase price he was to pay for the land. On this ground, if no other, he should not be permitted to-set up usury in tbe contract between the mortgagor and mortgagee. In the case of the Farmers and Mechanics' Bank v. Kimmel, 1 Mich. 84, usury is held to be a persona^ defense, to be made by a party to the contract, of which a. subsequent purchaser can not avail himself.

The decree is affirmed, -with costs.

The other Justices concurred.


author: Campbell J.:

text:
    The People, on relation of Pierre Teller v. Flavius J. Littlejohn, Judge, &c.
    No written request for a finding by tbe Circuit Judge is necessary, except where a party desires a detailed finding on the facts of the case, as well as on the-law points.
    Nor is the right to except for supposed errors of decision affected by the absence-of a written finding by the Circuit Judge.
    Where time has been allowed for preparing and settling exceptions, and it has expired without action, the Circuit Judge has power to make a further order for that purpose.
    Such further order having been made by the Circuit Judge, he can not afterwards disregard it, and refuse to settle the exceptions because not presented for the purpose within the time first allowed.

      Submitted April 22d.

      Decided December 2d.

      Motion for a mandamus. The facts are stated in the ■opinion.

      Hughes & Wooley, for the motion.

      L. D. Dibble, contra.
   Campbell J.:

■ This is an application for a mandamus. Teller being plaintiff in a suit tried before respondent, alleged exceptions upon the trial, which was without a jury. The exceptions were to the decision of the Court upon the effect of the plaintiff’s evidence — that decision involving questions of law. In pursuance of an understanding between the counsel in the presence of the Judge, he ordered that plaintiff might make and serve a bill of exceptions in twenty days, giving defendant twenty days to propose amendments, and providing for ten days notice of settlement. This order was never entered, and plaintiff’s counsel supposed it allowed him thirty days to prepare his bill, which he served within that time, but not within twenty days. Upon the service defend•ant’s counsel said the time had expired, but retained the paper and made no further objection. Having proposed no amendments he was served with a notice of settlement for March 19, 1861, which he returned with a notification that he did not recognize the proceedings. Flaintiff’s attorney then, on March IS, 1861, obtained a written order from the Judge, extending the time for presenting and settling exceptions to the 22d day of March, 1861, and ordering service of the exceptions and notice of settlement for that day, in season for preparing amendments and attending the settlement under the rule in such case provided. On the appointed day the hearing was postponed by .consent, to a •subsequent time, no waiver of objections being made. On the day agreed upon the defendant’s counsel objected to the settlement, and the Court refused to settle the exceptions on two grounds; First, because the plaintiff’s counsel did not serve the exceptions within the twenty days first appointed; and Secondly, because no written finding was. .requested of the Court..

There is no rule of Court or provision of law which, requires a written request for finding, unless where a party desires a detailed finding on the facts of the case, as' well as on the law points. See Rule 87. The statute and the rules both recognize fully the right to except for any supposed improper ruling. And the exceptions taken here-come strictly within section 3438 of the Compiled Laws., Without deciding whether the statute requiring a rvritten finding of some sort (section 3436) is peremptory under-all circumstances, we are entirely clear that a .right to* except for supposed errors of decision can not be affected by the absence of a written finding.

The order allowing the plaintiff to present exceptions, for settlement on the 22d of March, was a valid order,, and expressly authorized by rule 85. This being so, the-plaintiff had an absolute right to proceed and have the bill settled by the Judge. Under rule 86 the exceptions, need not be served nor amendments proposed before the-day appointed or noticed for the settlement. There was. a strict compliance with the rule granted, and with the general practice. If the original order (not having been-i entered) was of any validity, it was superseded by the written order last granted.

Plaintiff is entitled therefore to have his bill settled in-accordance with the facts, which will of course be properly disposed of when the settlement takes place. The mandamus-will issue directing the Circuit Judge to appoint a reasonable time and place when he will attend upon such settlement. The case is not a proper one for costs, as the questions are-questions of practice under merely judicial action.

Manning and Christiancy JJ. concurred.

Martin Ch. J. dissented, not regarding this as a proper case for a mandamus.


author: Martin Ch. J.:

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    The Attorney General v. The Board of Supervisors of the county of St. Clair.
    The law which provides for submitting to the electors of a county at the township meetings the question of the removal of the county seat, if it can be held applicable to cities at all, is incomplete in not providing for a vote of the electors of such cities as hold charter elections at a diiferent time from the township meetings.
    It was accordingly held, that in the county of St. Clair, in which was situated the city of St. Clair, whose charter election is not held on the same day with the township meetings, the question of the removal of the county seat could not be submitted to the people under said law.

      Heard November 28th.

      Decided December 6th.

    Appeal from St. Clair Circuit in Chancery.
    The' bill was filed by the Attorney General to enjoin proceedings which were being taken under resolutions passed by the Board of Supervisors of said county at their October meeting, 1861, by a two-thirds vote of the Supervisors present, the first of which was that it was expedient to remove the county seat of said county from the city of St, Clair to the city of Port' Huron; the second, that the question of such removal should be submitted to the electors of said county at the next annual township meeting to be held in the several townships, and the charter elections to be held in the several wards of the cities of said county; and the third directed the county clerk to give notice of such submission, as required by law.
    The bill claimed the said resolutions to be inoperative for the reason, among others, that there was no lawful mode of submitting the question of removal to such of the electors of the county as resided in the cities of St. Clair and Port Huron.

      The Circuit Court in Chancery heard the case on bill and answer, and awarded an injunction as prayed. The defendants appealed.

      G. V. N. Lothrop, for complainant.

      W. T. Mitchell, A. B. Maynard and O. D. Conger, for defendants.
   Martin Ch. J.:

Section 8 of article 6 of the Constitution provides, that no county seat once established shall be removed until the place to which it is proposed to be removed shall be designated by two-thirds of the Board of Supervisors of the county, and a majority of the electors voting thereon shall have voted in favor of the proposed location, in such manner as shall be provided by law. The law prescribes (Comp. L. §§ 351, 352, 353), that the assent of a majority of the electors of the county voting thereon shall be requisite to remove a county seat, and that the proposition shall be submitted “at the next township meeting to the vote of the electors of such county,” and that “a vote of, the electors of such county shall be taken in each of the townships in such county at the place designated for the next township meeting.” In the county of St. Clair are the cities of St. Clair and Port Huron. Neither of them have township meetings, or any thing of like character, except in so far as charter elections may be so regarded. The business which is transacted by the inhabitants of townships at the annual meeting is in these cities delegated to and transacted by their Common Councils. The charter election in the city of St. Clair is held upon the first Monday of March, while the annual township meeting is required by law to be holden on the first Monday of April. None of the provisions of law provide for a submission of the question of the removal of county seats to the electors of cities, unless, perhaps, in such cities as hold their charter elections upon the first Monday of April; for it was the obvious intent of the Legislature that the vote of all the electors of the county upon the proposition should be taken at one and the same time. We think, therefore, that the law is incomplete, and not in compliance with either the letter or spirit of the Constitution, in not providing for a vote of the electors of cities holding elections at a time different from townships, even if it were held tp.be applicable otherwise.

It was urged by the counsel for the defendants, that the word township in this statute “ comprehends cities and wards,” and that “ the words township meetings are equivalent to local elections,” whether of cities or townships proper. That the word “township” as employed in the statute often embraces cities, is unquestionable; and it is equally unquestionable that it is quite as frequently used to denominate townships proper, to the exclusion of cities; and whether the Legislature intended in the statute before us to include cities or not, it is perfectly obvious that it was equally their intention to provide for a vote of the whole county on the day of the annual township meetings; and it is just as manifest that no such vote could be cast in the city of St. Clair upon that'day.

The decree of the Circuit Court must be affirmed.

The other Justices concurred.


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    Adam Couse v. Patrick Tregent and another.
    One in possession of personal property of which he has made a conditional purchase, can not before the condition has been complied with sell the property so as to vest the title in a bona fide purchaser.

      Heard May 23d and 24th.

      Decided December 6th.

      Case made after judgment from Wayne Circuit. The facts are stated in the opinion.

      Gray & O'Flynn, T. Romeyn and H. M. Cheever, for defendants:
    The policy of our statute laws requires that the rights and equities of third parties should he preferred and enforced as against secret transfers and liens. Our registry acts, and those requiring notices of suits pending to be filed, and all other legislation on this class' of subjects, show this to be the policy of our law.
    The adjudged cases and the rules laid down by elementary writers sustain this view.
    Whatever may be the rule as to the rights of a creditor of the fraudulent holder and seller of the property, the rights of a bona fide purchaser, who has paid actual value for it, are to be preferred to those of the original owner, according to the weight of adjudged cases, and of established elementary principles. See 2 Kent, 653 (497); Story on Sales, §313; Hilliard on Sales, §95; 4 Mass. 405; 17 Mass. 606; 2 Pick. 512; 6 Pick. 78; 3 Cush. 259; 3 Gray, 550; 5 Gray, 306; 7 Gray, 155-158; 2 Hall, 345; 1 Seld. 42; 6 Johns. Ch. 437; 1 Paige, 315; 25 Barb. 474; 28 Barb. 217, 393; 8 Cow. 238; 15 N. Y. 411; 14 S. & R. 214; 1 Barr, 190; 5 T. R. 175.

      Wells & Hunt, for plaintiff cited:
    3 Duer, 20; 15 N. Y. 409; 2 Hill, 326; 4 Mass. 405; 2 Pick. 512; 17 Mass. 606; 3 Cush. 257; 7 Gray, 155; 23 Geo. 205; 12 N. H. 199; 8 Vt. 151; 20 Vt. 203; 3 Gray, 545; 2 Gray, 550; 5 Gray, 306; 5 Gray, 158; 8 Gray, 159; 13 N. Y. 126; 15 B. Monr. 555.
   Martin Ch. J.:

Couse sold to one Hamilton a piano forte, conditionally, or perhaps, to speak more correctly, agreed to sell it, and gave into his possession the instrument upon an agreement* certified by Hamilton in writing, that the same was to remain the property of said Couse, and subjeet to his, direction, until the full sum agreed to be paid by Hamilton, therefor should be paid, when and not before it was to, become the property of Hamilton, .and that in case of the failure of Hamilton to pay therefor according to his agree-, ment, then he should pay interest on all amounts not paid, &c. Hamilton subsequently sold this property to, Tregent, and from his possession it was replevied by Couse, he claiming to be its owner. Tregent bought in good faith, and without knowledge of Couse’s rights or claim.. The question submitted is, whose property is the piano forte? The sale and delivery by Couse to Hamilton were both conditional, and Couse can not, as between himself ' and Hamilton, be said to have parted with the title, and the possession of Hamilton was determinable at the plear. sure of Couse from the moment of delivery until payment. By this delivery Couse did not give to Hamilton the ostensible ownership any more than the lender or hirer of’ chattels gives it to the person to whom he lends or hires them. The possession of goods, although prima, facie evidence of ownership, is not such proof of it as to confer any equities upon third parties against the actual owner’s title,, unless fraud exists.

The right of the owner of chattels to sell the same, conditionally is as old as the right to loan them; and I can not perceive how the possession by the conditional purchaser is any more a means of defrauding parties than that of the bailee of goods for hire. So long as the con-, dition is not waived and remains unperformed, the property does not vest in the purchaser, and all the authorities, cited by counsel upon both sides concur in this right to, sell upon 'condition, and to retain the absolute title until condition performed. The principal question which has engaged the attention of courts is that of a waiver; for if' the condition be waived the property passes with delivery.

While I do not understand the counsel for the defendant to deny this right as a settled principle of law, it is 'contended that the policy of our statutes, as indicated by our registry laws and those respecting chattel mortgages, requires that the rights and equities of third parties should be protected and enforced as against those of the vendor. What right has a purchaser of chattels from a conditional purchaser, as against the absolute owner, that be would not have if the purchase were from a bailee? The possession is the same, and the ownership the same substantially; ■certainly the same opportunity for the perpetration of fraud exists in the one ease as in the other. In the case of a mortgage of goods, the statute only requires the filing of a copy of the mortgage in the clerk’s office in cases where the mortgagor retains possession of the property, but not where possession is- given to the mortgagee; yet the mortgagee in possession has the same opportunity to defraud third parties that a conditional purchaser has, for his title is not absolute. Although the same evils may result in this class of cases as in those of chattel mortgages before the statute, yet if so, it is a subject for legislative and not judicial action.

We think, therefore, that Couse never parted with the property in the piano forte, and that Tregent acquired no title to it by bis purchase from Hamilton.

The judgment of the Circuit Court is affirmed, with costs.

The other Justices concurred.


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    Isaac Picard v. Robert McCormick.
    •A mere assertion of value made by the seller, when no warranty is intended, is no ground of relief to a purchaser, because the assertion is. a matter of opinion which does not imply knowledge, and in which men differ. Every person reposes at his peril in the opinions of others when he has equal opportunity to form and exercise his own judgment.

      But it oau not "be laid down as a rule of law that value is never a material fact.
    And when the purchaser expressly relies upon the knowledge of the seller as to. quality or value, the seller is bound to act honorably and deal fairly with the purchaser. "When confidence is reposed in him he is bound not to abuse it,, and the rule of caveat emptor does not apply.
    A jeweller, knowing the purchaser’s ignorance, deliberately and designedly availed himself of it to defraud him by false statements of the value of articles in his trade which none but an expert could reasonably be expected to understand.. Held that an action would lie for the fraud.
    Yalue may be the subject of a warranty in a contract of sale.
    A pleading should contain allegations of facts, and not of evidence.
    Under a count for a false and fraudulent representation of the value of an article sold by defendant, plaintiff may prove false statements made by defendant at the time as to the value of particular parts of the article, notwithstanding' such statements are not detailed in the declaration.
    A simple bill of sale does not embody the preliminaries nor the essential terms, of a contract in such a way as to exclude parol evidence. It is designed merely to show the transfer of title.
    And when a contract of sale is in writing, if the seller has been dishonest in the transaction, the purchaser may disregard the writing and sue directly for the fraud.
    "Where property is taken at a fixed money price, the transfer amounts to a sale whether the price is paid in cash or in goods.
    Each count of a declaration is to be regarded as a separate claim, and the declaration is not defective because one count claims damages below the jurisdiction of the court.

      Heard November 15th.

      Decided December 6th.
    Error to Washtenaw Circuit, where McCormick recovered judgment against Picard for false representations of the value of watches and other jewelry for which plaintiff had bargained with defendant at four hundred dollars, and paid in a horse at $160, and the balance in notes. The declaration and the objections nátde to a recovery under-it are sufficiently stated in the opinion.
    After the evidence was in, the Circuit Judge charged the jury as follows: “It is a rule of law that a mere assertion' of value made by the seller, when no warranty is intended, is no ground of relief to a purchaser, because-the assertion is a matter of opinion- which does not imply knowledge, and in which men differ. Every person reposes at his peril in the opinions of others, when he has equal opportunity to form and exercise his own judgment.

      “This rule applies only when the vendor and vendee rely upon their own judgment. But when the vendee expressly relies upon the knowledge of the vendor as to quality or value of the article of sale, the vendor is hound to act honorably and deal fairly with the vendee. When confidence is reposed in the vendor he is bound not to abuse it, and the rule of caveat emptor does not apply.
    “When one piece of property is given for another, without regard to value, that is an exchange; but where one piece of property is sold at a price, and other property is by the same contract received in part payment at a price, and the balance in money, this is a sale and not an exchange.
    “ It is contended by defendant’s' counsel that the bill of sale is the evidence of the contract, and can not be contradicted by the parol evidence. Though the contract be in writing, if the defendant has been dishonest in the transaction, the plaintiff may disregard the writing and sue directly for the fraud.”

      H. J. Beakes, for plaintiff in error:
    A misrepresentation of value, unconnected with any misrepresentations of kind, quality or quantity, though willful on the part of the vendor, and credited by the vendee, affords no cause of action: — 3 Bulst. 94; Cro. Jac. 386; 1 Lev. 102; 2 Ld. Raym. 1118; 5 Johns. 354; 5 Hill, 69, 303; 6 Paige, 254; 6 Met. 250; 3 Woodb. & M. 420; 1 Dana, 611; 2 Ired. 32; 1 Dev. 21; 18 Me. 418; 1 Ark. 41; 1 Sug. Ven. & Pur. 3; 2 Kent, 658; 2 Pars. Cont. 275; Story on Sales, 36; Hill, on Sales, 252; Bull. N. P. 31.
    The third count is bad, because claiming a sum below the jurisdiction of the Court.
    The evidence of what Picard said about the diamonds was improperly received. It did not tend to prove any of the allegations in the declaration. It was an attempt to prove a different fraud from the one.alleged: — 6 Ind. 23.
    The Court erred in his charge that the written contract might be disregarded. It must be set out in the declaration: —1 Chit. Pl. 384 : and must be proved by precisely the same ■ evidence as if the action was ex contractu; that is, by the best evidence. The Court also erred in his definitions of an exchange and a sale: — Bouv. L. Dic., Title “Sale.”

      A. Felch, for defendant in error:
    The representation of value set out in the declaration included all the little details given by the vendor to deceive the purchaser, and they are all receivable in evidence.
    The charge of the Judge was correct.
    In no case does the law allovv a misrepresentation, knowingly made to the injury of another, to go unpunished by an appropriate remedy, and the vendor is liable for any intentional mis-statement whereby the vendee is induced to purchase under a false impression: — 1 Smith Lead. Cas, 243; 3 Story R. 660; Ibid. 700; 6 Exch. 761; 3 Seld. 352; Story on Sales, §165.
    The rule goes to this extent when no express trust is reposed by the purchaser in. the «seller. When such trust is reposed, and the vendor knows it, the rule is extremely stringent. The least departure from strict truth — the artful statement of a false opinion, or even an artful silence by which the purchaser is induced to buy, is a fraud for which the law holds the vendor liable: — Story on Sales, §§170, 171, 179, 181, 374 and 380; 1 Story Eq. Juris. §§198, 208; 1 Pars. Cont. 461; 1 Hill. Torts, 5; 1 Clark & Fin. 232; Smith v. Babcoch, 1 Wood. & M. 246; Ibid, 217; 7 Blachf. 178; 3 B. & C. 623.
    This rule is clear as to representations made relative to the condition and quality of the articles sold; but it seems to be claimed in this case that it does not apply when the vendor speaks of the value of his wares.
    Yague and general representations as to the value of the article of sale by the vendor are, in ordinary cases, understood to be mere expressions of opinion, and deceive nobody. But this rule applies only when they are given and received as mere opinion, or are the ordinary boasting of the vendor. When any artifice is employed to aid in the deception, or in any improper manner to enhance the price, or the buyer has not full opportunity to judge for himself, the injured purchaser has his remedy for the fraud: — Story on Sales, §169; 2 Kent, 485, 487; 1 Story Eq. Juris. §201.
    The relation of confidence and trust once established between the negotiators, new duties are imposed upon the vendor. In other cases he may puff his goods and make extravagant statements of their value, but when he undertakes to tell facts to one expiressly trusting to his statement he must be as truthful as to the value of his goods as in any other representation.
    Where special confidence exists, he can no more be allowed to deceive by knowingly misrepresenting the value than any specified quality of the article. The rule of caveat emptor gives place to the confidential relations of the parties. That rule tells the buyer to look out for himself; the relation of confidence substitutes for that rule, by consent of parties, a reliance upon the statement of the-seller, as the full and honest truth: — Story on Sales, §§ 380, 381; Story Eq. Juris. §§202, 207, 308, 197, 198, 192; 7 Blackf. 178.
    A contract of warranty, whether verbal or written,, does not prevent a recovery in an action for deceit in any fraudulent and false representations willfully made by the vendor at the time of the purchase: — 3 Stew. & Port 322; 1 Tenn. (Overt.) 174; 2 Woodb. & M. 246; 6 Geo. 584.
   Campbell J.:

McCormick sued Picard to recover damages on account of false representations whereby the former was induced to purchase of the latter watches and other jewelry to a large amount.

The declaration contains several different counts, and, inasmuch as it is claimed that all or some of them are fatally defective, it becomes necessary to refer to them.

The first count avers the ignorance of plaintiff concerning the value and quality of the articles sold, the defendant’s knowledge of such ignorance, he himself being a skillful dealer in such goods, the application by defendant to McCormick to induce him to purchase, the refusal of McCormick to do so except in reliance upon Picard’s representations, and a sale based on fraudulent representations of the value of the property, whereby the purchaser was damnified.

The second count is for a breach of warranty of value, by which Picard knowingly, falsely and fraudulently deceived McCormick.

The third count is for false representations concerning the value and quantity of gold in a necklace which Picard, knowing McCormick’s ignorance, induced him to purchase by such representations.

The fourth and fifth counts are framed like the. first, but upon different representations.

The principal objection alleged against these several counts (which is taken on assignment of error and not by demurrer) goes to the materiality of the frauds charged. It, is claimed that an allegation of value, although false, can not be made the ground of an action. .

It is undoubtedly true that value is usually a mere matter of opinion; and that a purchaser must expect that a vendor will seek to enhance his wares, and must disregard his statements of their value. But, while this is generally the case, yet we are aware of no rule which determines arbitrarily that any class of fraudulent misrepresentations can be exempted from the consequences attached to others. Where a purchaser, without negligence, has been induced by the arts of a cheating seller to rely upon material statements which are knowingly false, and is thereby damnified, it can make no difference in what respect he has been deceived, if the deceit was material and relied on. It is only because statements of value can rarely be supposed to have induced a purchase without negligence, that the authorities have laid down the principle that they can not usually avoid a bargain. But value may frequently be made by the parties themselves the principal element in a contract; and there are many cases where articles possess a standard commercial value, in which it is a chief criterion of quality among those who are not experts. It is a matter of every day occurrence to find various grades of manufactured articles known more generally by their prices than by any test of their quality which can be furnished by ordinary inspection. Frauds are easily committed by dishonest dealers, by confounding these grades, and can not be detected in many cases except by persons of experience. In the case before us the alleged fraud consisted of false statements by a jeweller to an unskilled purchaser of the' value of articles which none but an expert could be reasonably supposed to understand. The dealer knew of the purchaser’s,-Ignorance, and deliberately and designedly availed himself of it to defraud him. We think that it can not be laid down as a matter of law that value is never a material fact; and we think the circumstances of this case illustrate the impropriety of any such rule. They show a plain and aggravated case of cheating. And it would be a deserved reproach to the law if it exempted any specific fraud from its remedial action, where a fact is stated and relied upon, whatever may be the general difficulty of defrauding by means of it. The same reasoning will dispose of the objection that in the second count the representátions are not set out as having been relied upon, or as having been made in deliberate breach of confidence. If value can be regarded in any case as a material fact, then it may be made the Wlbject of a warranty. This count is in the usual form for breach of a fraudulent warranty, and is therefore good,

An objection was also made that one of the counts averred damages less than one hundred dollars. This objection is not tenable. The counts must always be regarded in law as separate claims, and if the aggregate damages alleged in the'various counts joined exceeds one hundred dollars, the Court has jurisdiction.

Upon the trial, one of the witnesses having detailed the false representations made by Picard to McCormick, con cerning the watches, one of which was set with diamonds on the outside, was asked “ what was said about the jewels?” This was objected to because the declaration alleged no representation about the jewels, but the objection was overruled, and the witness swore Picard said if the watch was smashed up the diamonds would be worth seventy dollars, The question was not improper. A declaration would be improperly framed and needlessly prolix, if it should set out in terms the whole of a conversation from which a jury would be warranted in finding that fraud had been practiced. A pleading should contain allegations of fact, mid not of evidence. The inference from the evidence is one of fact and not of law. The plaintiff was entitled if not required to lay before the jury the whole transaction, so that they might determine from all the facts what might not be so clear from a portion of them. The evidence was proper therefore as forming a part of the transaction. It was very material as tending to show a resort to circumstantial falsehoods, which are, by common experience, more dangerous than mere wholesale assertions, There is no more effectual means of deceiving than the assertion of numerous minor facts, as evidence of a principal fact, which, if true, they would of necessity establish.

A bill of sale was produced, which the defendant endeavored to show was meant to be ,in the .name of one Jacob Picard, and not. Isaac Picard, there being some difference of opinion among the witnesses whether the initial used was meant for I. or J. And, as the sale was charged as , made by Isaac Picard, his counsel asked the. Court to charge the jury that the bill of sale was the. evidence of the contract, and could not be contradicted by parol evidence. This the Court refused, and told the jury-that though the contract be in writing, if the defendant had been dishonest in the transaction, the plaintiff might disregard the writing and sue directly for the fraud. This charge was correct. The fraud is the foundation of the action. Isaac Picard, who perpetrated it, was responsible' for it. If employed by some one else it could not exone rate himself, although it might possibly render his principal liable, if guilty, civilly, and possibly as a party to a conspiracy. There was, however, nothing in the case to render such a charge material even if it had been incorrect, The evidence showed no contract except with Isaac Picard, A simple bill of sale does not embody the preliminaries nor the essential terms of the contract in such a way as to exclude parol evidence. It is designed merely to show the transfer of title. If made in the name of J. Picard instead of I. Picard, it- was evidently a very shallow trick, although defendant seems from his remarks to Posenfield to have formed'the idea that if he gave a bill of sale there could be no after concern about it. We are not aware of any rule which determines in the eye of the law any invariable distinction between the English written signs for I. and J.; but if such a distinction were entirely clear, it would not have the effect of discharging a fraudulent contractor who resorted to it as a device for knavery.

Exception was also taken to ■ the charge of the Court tipon the circumstances under which a vendor becomes liable for misrepresentation. We think the rule laid down remarkably clear and entirely correct. We also think the distinction between a sale and an exchange of property was properly taken. If property is taken at a fixed money price, the transfer amounts to a sale whether the price is paid in cash or in goods. The term sale is comprehensive, and embraces all transfers] for a price named, whether confined, to that class or not.

There is no error in the proceedings, and the judgment must be afiirmed, with costs.

The other Justices concurred.


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    Francis X. Caldwell v. William P. Gale.
    The Court is not bound to follow as precedents adjudications outside the State-* except the adjudications of the Federal Courts on questions arising under the Constitution and laws of the Federal Government — any further than they appear to the Court to be warranted by the fundamental principles of the common law.
    The question discussed whether, where one erects a dam on his own land, whioh causes the land of another to be flowed, and then conveys the land on which the dam is situated, a suit can be brought against his grantee for the nuisance before he has been served with notice of it and requested to remove it,
    if such notice be necessary, and has once been given by the owner of the land flowed, it will enure for the benefit of his grantee, or of any one claiming title under or through the person giving the notice.
    That which in a replication would not be a departure in pleading, may be given in evidence in reply to a defense under the general issue.
    Where a notice from plaintiff’s grantor was sufficient to entitle him to maintain the action, and such notice was proved, and the Court erroneously charged that the notice must be given by the plaintiff or by some one authorized by him! it was held that to entitle the plaintiff to take advantage of the erroneous ruling it was not necessary that the attention of the Court should be specially called to the evidence of notice at the time of the charge.

      Heard November 25th.

      Decided December 6th.

    Error to Monroe Circuit. The case is stated in the opinion.

      G. V. N. Lothrop, for plaintiff in error:
    Is notice necessary under any circumstances' to sustain this action ?
    1. The earliest cases reported did not require notice See cases arranged per Lumpkin J. in Bonner v. Welborn, 7 Geo, 314.
    But subsequently this distinction was taken. Where the. action was brought against him who originally created the-nuisance, no notice was necessary; otherwise when the. action was against a grantee of the original wrong doer: — . Penruddock's case, 5 Coke, 100.
    This seems to have been followed in England; though the point does not appear to have been expressly adjudicated: — Willes, 583; 11 M. & W. 176; see 1 Chit. Pl. 83, 89, 389.
    And so in many cases in this country: — 13 Conn. 303; 2 Green, N. J. 36; 44 Me. 156; 9 N. H. 91; 21 N. H. 309; 26 N. H. 275; 24 Barb. 404; 1 Dutch. 97.
    2. But it seems doubtful, whether on principle these, rulings can be applied to the action on the case.
    Starkie thinks it not necessary: — 3 Stark. Ev. 992.
    The Supreme Court of Georgia could see no principle-On which it could be required: — 7 Geo. 314, 320.
    And Judge Denio has strenuously assailed the doctrine. He points out that under Penruddock’s case the ruling only applied to the real action Quodpermittat: — 2 Kern. 487.
    Why in this case a party should not as in other casesr be required to take notice of his own misfeasance or his. Own negligence, seems not easy to exjilain.
    But even if notice is required, sufficient notice was shown, in this case.
    1. There is no case, it is believed, which requires notice, to be given by the plaintiff, he being the grantee of the premises injured. The whole notion of notice proceeds, not on the relation of the plaintiff, but on that of the defendant^
      to the premises. The object is to enable the defendant to act. The sole inquiry, therefore, is whether notice has been given to the defendant by one who had a right to give it.
    2. Notice was never required to be given to the original wrong-doer. Even a grantee of the premises affected could sue him for a continuance without notice: —7 Geo. 296.
    - And it was never questioned that every continuance of a nuisance is a fresh trespass: — 3 Bl. Com. 220; Cro. Ja. 231; 7 M. & W. 459; 1 Denio, 261; 10 Mass. 74.

    It then seems necessarily to follow that, when the grantee of premises on which a nuisance has been erected, continues that nuisance with notice or knowledge that it is such, he thereby becomes himself a> wrong /doer: he stands to the person injured on the same footing as the original wrong doer, and his position in relation to the wrong being once fixed, it remains. He may be sued by the party injured, when this relation first becomes fixed. And he may also be sued by the alienee of such person as an original wrong doer could be, because by notice or knowledge he is placed on the footing of an original wrong doer: — 7 M. & W. 460.
    All the authorities base the propriety of notice on the fact that the defendant, if a grantee, may in fact not know of the nuisance, may not have adopted it, and may be willing to remove it. Therefore he should have the "opportunity before being immersed in an action : —13 Conn. 307; New Hampshire cases cited above.

    The notice is not merely to give the defendant know, ledge, but to place him in a position in which he shall 'voluntarily continue and consequently adopt the nuisance: 8 Hutch. 474.
    Hence when the thing erected was not essentially a nuisance, but only became so by the use of the grantee, notice was held to be unnecessary: — 1 Dutch. 72.
    So when the defendant, a grantee, had by affirmative acts continued the nuisance: — 3 Hutch. 457.

      So, knowledge of the fact of the nuisance by a grantee has been expressly held sufficient; and a notice by the authorities of the town has been held sufficient in an action by a private person: — 30 Ala. 318.
    And in England it is held that a special notice left at the premises with one occupant, is sufficient to bind the subsequent occupant who takes the premises on which the nuisance exists and continues it: liy. & Moo. 189.
    The fair result is I think this. All that is necessary (even if so much is) to sustain this action against a grantee of premises which work a nuisance to another, is that the grantee should have knowledge of the fact of the nuisance, and permit or maintain its existence in defiance of the known claim of the plaintiff: — 24 Barb. 409.

      A. Fetch, for defendant in error:
    In two classes of cases no suit can be maintained unless notice be given previous to its commencement that the dam is a nuisance, with a request to remove the same,
    1, It must be given in all cases where the nuisance complained of was erected by another and is merely continued in its original state by a defendant holding , under him:— Ang. on Water. §403; 2 Hill, on Torts, 143; 2 Fost. 296; 9 N. H. 88; 2 Green, N. J. 36; 3 N. H. 88; 13 Conn. 303.
    And said notice must be distinct and unequivocal in order to lay the foundation for an action: — McDonough v. Gilman, in Am. Law Register, for June, 1862, p. 507.

    2. It must also be given where the property affected by the nuisance has been conveyed to the plaintiff after the nuisance was erected. The new purchaser willingly takes the property as he finds it, and) it is considered as an assent on his part that it may remain in that condition until he requests that the obstruction be removed: — Willes, 583; 2 Greenl. Ev. § 472; 9 N. H. 88; Penruddock’s case, 5 Coke, 100.

      First. The charge of the Court announced the law applicable to the case, if the jury found the facts bringing it within the first class of cases above mentioned. The instruction was predicated upon the assumption that the proof established to the satisfaction of the jury that the dam was erected by Tuthill, purchased by the defendant, and continued at its original height, <fce. Nothing is stated or assumed in regard to the title of the plaintiff. The instruction was not based on the presumption that Caldwell was a recent purchaser, or that he had not been from the time the dam was erected the owner of the premises alleged to be injured. It does not assume that a notice had been given by a prior owner from whom Caldwell derived title, nor does it decide anything as to the effect of such a notice on the right of the plaintiff.
    In fact, no charge could properly have been given to the jury on the hypothesis that the plaintiff had proved a notice by a prior owner through whom he claimed title. The bill of exceptions shows that the plaintiff below rested his case without proof of any notice, and that the testimony in regard to the title of the plaintiff, and the notice said to be given by Thomas Caldwell, was given and received as rebutting evidence, and solely to rebut the defendant’s proof of prescriptive right, and not to enable him to make out his case. The plaintiff’s case rested, then, on the original proof given by Mm, no notice being shown. There was no basis, therefore, laid by the proofs, for a charge upon the supposition that such notice had been shown by the plaintiff.
    If the plaintiff had desired to have a charge from the Court, and the proofs would have rendered it proper, on the assumption that he was a recent purchaser of the premises injured, and that such notice was given by Thomas Caldwell, a previous owner, he should have asked the Court to instruct the jury that such notice by Thomas Caldwell was sufficient to give the present plaintiff a right to sue, and should have excepted to the charge given if unsatisfactory, or to the ruling, if the Court refused to charge as desired.
    On the hypothesis of facts stated in the charge, the law was correctly laid down. It was a charge merely that when the dam was erected by another and continued as before by a purchaser 'of the same, the plaintiff must give him notice before he can sue for an injury occasioned to his property by it.

      Second. But if we look into the bill of exceptions and the assignment of errors instead of the hypothesis stated in the charge, the same conclusion follows. It is there stated that Thomas Caldwell was the owner of the premises alleged to be injured, /rom 1823 until January 15, 1856, when he conveyed the same to E. Adams — that Adams conveyed to Mary Ann Caldwell, January 21, 1856, who 'conveyed to the plaintiff, May 7, of the same year. The dam was erected in 1836, and had been continued ever since. The notice by Thomas Caldwell was claimed to be given in March, 1853.
    Assuming this statement of facts, the case falls within the second class above mentioned, and the charge was correct. Notice given by Adams, while he was owner, was sufficient to enable him to maintain a suit to recover any damages suffered by him from the flowing caused by the dam. But the premises passed from Adams through two intermediate owners, and then became the property of the plaintiff. The dam having, been continued after the notice by Thomas Caldwell, shows an acquiescence, notwithstanding, on his part, as long as he continued to be owner, and so by the two subsequent owners, and the premises were purchased by the plaintiff knowing their condition in reference to the effect of the dam. His acquiescence is also to be presumed until he notifies the owner of the dam to remove the obstruction.
   Manning J.:

This is an action on the case for flowing the plaintiff’s land by a mill dam.

The bill of exceptions shows that there was evidence before the jury proving, or tending to prove, that the dam was not. erected by defendant, but by a previous Owner of the land on which it is situated; and that notice Was given to defendant by Thomas Caldwell, when he owned the land now owned by plaintiff, of the overflowing Of it by the dam, and of a request to defendant to remove it.

The Circuit Judge among other things charged the jury, in substance, that if the dam was not erected by defendant, and he did nothing more than continue it in the state it was in when he became the owner of the land, that to sustain the action it was necessary to show notice had been given to him of the nuisance, and that he had been requested to abate it, before commencement of suit; and that such notice had been • given by the plaintiff, or by some one authorized by him.

The only error assigned is on this part of the charge of the Court.

To sustain the action, the charge assumes, if the jury should find the dam was not erected by defendant, 1st, That he had been served with notice of the nuisance, and had been requested to remove it, and, 2d, That such notice and request from a former owner of the land flowed, Whose title plaintiff had acquired, was not sufficient.

If either of these propositions is incorrect, the charge is erroneous; otherwise not.

The first proposition is sustained by adjudged cases both in England and in this country. It appears to have had its origin as a rule of law in Penruddoclds Case, 5 Coke, 100. It has antiquity on its side; and is therefore entitled to all the consideration and weight that time can give to an adjudication, as precedent for other courts to follow. We are not, however, aware that the question has ever before arisen in our Courts, and we do not feel ourselves bound to follow, as precedents, adjudications outside of our own State — save adjudications in the Federal Courts on questions arising under the Constitution and laws of the Federal Government' — any further than they appear to us to be warranted by the fundamental principles of the common law.

Any one who upholds and sustains a private nuisance, to the injury of another, is in law answerable for the injury-done to such person. This is admitted to be law by all the cases, and is denied by none, with this qualification, viz: that the injured party give notice to the party sustaining the nuisance when he did not also create it, of the injury, and request its removal. We are not aware of any case holding it necessary to give such notice to the author of the mfisance, before bringing an action against him.' He can not claim it. It is therefore a right, if it be a right at all, pertaining to his grantee. Now, why should there be this difference between one who erects a nuisance on his own land, and his grantee, who afterwards sustains and upholds it? It is said defendant may not have known that the dam was injurious to the plaintiff, or that his rights were impaired by it. The same may be said of the author of the nuisance; and if such a plea is not good in his mouth why should it be in that of his grantee? The wrong is none the less a wrong, so far as it regards the injured party, because the wrong doer intended no injury. Why is want of notice no excuse when coming from the author of the nuisance ? Because it is a fundamental principle of law that no man shall so use his own property as to injure another, by encroaching on his rights. We know of no exception to this rule, unless it be the one in question; and we see no reason why it should not and does not apply with all its force as strongly against the grantee as his grantor. But it is or may be further said, that the grantee may suppose his grantor has acquired the right to flow, from the owner of the land. He may suppose the same in regard to the title to the land purchased by him; but if his grantor had no title, he would have none, and no notice would be necessary to sustain an ejectment to oust him of his possession. And so it seems to us in regard to the right to use the land in a way to injure another. If his grantor had not acquired the right to flow, he could not have it. It is as clearly his duty to look into the right of his grantor before purchasing in the one case as in the other.

It is not our intention, however, to decide the question, but to leave it open for further consideration should it hereafter arise; as we are clearly of opinion, if notice in such ease be necessary, that when it has once been given by a party authorized to give it, it will inure to the benefit of his grantee, or of any one claiming title under or through the person giving notice.

On the argument it was further objected, that the evidence of the notice given by Thomas Caldwell, when he owned the land, was offered by plaintiff and received by the Court as rebutting testimony to the defense interposed by defendant, and that it could not therefore be considered for any other purpose; and also, that if plaintiff was dissatisfied with the charge, he should have called the attention of the Court particularly to this evidence, and requested the Judge to charge upon it; and that in consequence of his not having done so, he can not now refer to it for the purpose of showing the charge incorrect. We do not think either of these objections tenable.

To determine what is strictly rebutting evidence, and that which, at the same time that it overthrows the defense goes to establish the plaintiff’s cause of action, reference must be had to the pleadings and the order of tidal under them.

The declaration is in case for flowing plaintiff’s land, to which the general issue is pleaded. On the trial, plaintiff, to make out his case, proved the existence of the mill-dam, and defendant’s possession of the land on which it is situated, and that the dam was kept up by defendant, He then showed himself in possession of the land flowed, during the time stated in the declaration, and his damages-Here he rested, having proved all that was necessary to sustain his action. Defendant to show a right in himself to keep up the dam and flow the land, introduced evidenoe of the erection of the dam in 1836, by Lawrence and Tuttle, and Lawrence’s title to the land on which the dam stands, at that time, and defendant’s subsequent acquisition of his title by a chain of conveyances from Lawrence to himself; and that he and those under whom he claimed had, for more than twenty years, kept up the dam and flowed the plaintiff’s land, without any claim having been made that he and. the persons under whom he claimed had not a right to do so. To break this defense or right by prescription set up by defendant, plaintiff proved that Thomas Caldwell was the owner of the land mentioned in the declaration, and was in possession thereof from 1823 to 1856 ; the acquisition of Caldwell’s title by himself, through sundry mesne conveyances; an agreement between Caldwell when he owned the land and Tuttle to flow the same, previous to Tuttle’s conveyance of the land on which the dam is situate — he being one of the persons through whom the title passed in going from Lawrence to defendant; defendant’s knowledge of the agreement, his repudiation of it, and a notice from Caldwell to him to remove the same. Had defendant set up his defense by a special plea, plaintiff would have been required to state in his replication, in substance, the very facts he proved on the trial in reply to defendant’s evidence. And it will not be contended that plaintiff has any less rights under the general issue than he would have had under special pleading. Plaintiff conlcl not know what defense would be made, and if he had known, it was not his duty to anticipate it by countervailing testimony. Until the defense was entered upon it did not appear that defendant had not himself erected the dam. The presumption, if there was any, was_ against him, as he was in possession of it, and there was no evidence any one else ever had been. The same presumption, if any, would have been made from plaintiff’s possession, viz: that he was in possession of the land flowed when the dam was erected, and had continued in possession to the bringing of the action. It was therefore necessary for him, to break the defense, to show Thomas Caldwell’s title, and that he did not admit the right of Lawrence and his grantees to flow the land, except under the agreement between him and Tuttle, and defendant’s knowledge and repudiation of that agreement. What would not in a replication be a departure in pleading may be given in evidence in reply to a defense under the general issue.

As the bill of exceptions shows no evidence of notice, save that given by Thomas Caldwell, we must suppose the Judge had that in his eye when he charged as he did, that the notice must be given by plaintiff or by some- one authorized by him.

These words clearly negative the legal effect of the notice given by Thomas Caldwell, and under the circumstances we must suppose were so intended, by the Circuit Judge and understood by the jury.

The judgment must be reversed and a new trial had, with costs to the plaintiff in error.

Martin Ch. J. and Campbell J. concurred.

Christiancy J. did not hear this case.


text:
    John Larkin and another v. The County of Saginaw and another.
    A county is not liable for tbe acts of tbe Board of Supervisors in tbe exercise of « its legislative power.
    v The action of the Board of Supervisors in voting money and providing for the erection of a bridge at the expense of the county is legislative in its character ; and though the bridge is erected under a contract with the Board, and under the personal supervision of a committee of its members, the county is not liable for damages resulting to an individual by reason of defects in the plan.
    The same rule controls in this case that would control in the case of a bridge-constructed by authority of the Legislature.

      Heard July 19th.

      Decided December 6th.

    Error to Saginaw Circuit.
    The action was brought by Larkin and Sumner against the county of Saginaw and one Hughes, for obstructing the navigation of Tittibawassee River, by the improper construction of a bridge across the same.
    The evidence showed that, in 1858, the Board of Supervisors of said county made an appropriation of $1,000 for the construction of said bridge; that in 1859, they, by resolution, declared its erection necessary, fixed upon a site, and appointed a committee of their number to cause the bridge to be constructed upon such plan and within such time as to them might seem expedient for the best interests of the county. They also directed the job of constructing the bridge to be let to the lowest bidder after public notice of the letting, and that a draw should be inserted in the bridge over the channel of the river, not less than forty feet in width, and gave the committee power to draw for the $1,000 so appropriated. A change in the plan was afterwards authorized, increasing the expense. In October, 1860, the committee made a report to the Board, showing that they had adopted a plan for the bridge, and had let the job for its construction to Hughes. The work was done under the personal inspection of the committee, and was. completed early in September, 1860, with a draw or swing according to the plan. The swing having broken down, a further appropriation was made by the Board for reconstructing and strengthening it, to be expended by the same committee. In January, 1861, the committee reported the whole completed and accepted, and the Board ordered $200 to be levied upon certain townships and wards for the purpose of protecting it from ice.
    The plaintiffs, who were owners of a steamboat on said river, then gave evidence to show that the bridge was constructed in an improper and defective manner, and formed a serious obstruction- to the navigation, and that they had sustained special injury in consequence.
    The plaintiffs requested the Court to charge the jury, that the Board of Supervisors had authority to appoint the committee to construct the bridge, and that the acts of the committee under such appointment were the acts of and binding upon the county, and that if the committee in discharging the duties imposed upon them by their appointment, so 'constructed the bridge that it necessarily prejudiced the rights of the plaintiffs in the navigation of the river, the county is liable for the damage sustained by the plaintiffs. The Court declined so to charge, and the plaintiffs excepted.
    The Court then charged the jury that the Board of Supervisors had power to raise the means for the construction of said bridge, but that when they had determined that it was necessary to build the bridge, and had provided the necessary means for its construction, their power was at an end, and they had no right nor authority to expend the money in building the bridge. That the law confers the power on the highway commissioners of the townships in which the bridge is built to expend the money in the construction of the bridge, and that said Board exceeded their power when they appointed a committee to adopt a plan for, and superintend the work of building said bridge, and that Saginaw County was not liable for any. damage arising from the improper or defective construction of said bridge caused to be built by said Board.
    Exception was taken to this charge, and the jury having returned a verdict against Hughes but in favor of the county, plaintiffs brought error.

      Moore & Gaylord, for plaintiffs in error:
    The action of the Board of Supervisors was clearly within the power conferred by law: — Const. Art. 10, §§9 and 11; Art. 18, §4; Comp. L. pp. 189, 196.
    The power to raise money and to provide for the construction of bridges is given for the public benefit, and the g’rant includes everything necessary to the full and complete attainment of the beneficial object. The mere right to raise the money’without power to expend it in the construction of the bridge would not in any degree tend to subserve the interests of the public.
    The Board having authority to construct the bridge, the county is liable for any damage sustained by the plaintiffs from its improper or defective construction: — 2 Hill, on Torts, pp. 473, 511; A. & A. on Corp. p. 421; 4 Ohio, 500, 574; 10 Ohio, 159; 18 Ohio, 229; 2 Denio, 433; 15 Barb. 574.

      Sutherland & Miller, for defendant in error:
    The power which such Boards have, to provide for repairing and constructing roads and bridges, is wholly legislative. It is not given to counties as corporations, but to Boards of Supervisors as a governmental power. Counties have nothing to do with the work of building or repairing bridges in any case; nor with providing funds, except when the Supervisors, in their legislative discretion, deem it proper to require the county to contribute; and then, the money so contributed is required to be paid over to the highway commissioners. The bridge when built with the money furnished by the county, or several townships, does not become the property of the county; nor is the county chargeable with the duty of keeping it in repair: — 1 Seld. 369, 374-5; 3 Barb. 254, 258; 1 Hill, 551; 1 Denio, 595; 2 Denio, 450; 3 Comst. 463.
    The Board of Supervisors of Saginaw County had no power, as officers or agents of the county, to adopt a plan for the bridge, appoint a committee to superintend, and pay for its construction. It follows that the county is not liable for damages resulting from the defective plan, or construction: —12 Wend. 165; 2 Comst. 165; A. & A. on Corp. 96-7; 2 Kent, 350-1; 13 Pet. 587; 5 Denio, 567; 2 Denio, 110; 19 Pick. 511; 2 Barb. 104; 2 Johns. 109; 7 Ohio, 232; 4 Ohio, 514.
   Martin Ch. J.:

The Board of Supervisors of Saginaw county is clothed with legislative as well as executive power; and while the county may be made liable for its acts in the exercise of the executive, it can not for its exercise of legislative power. The determination that it was necessary to build a bridge across the Tittibawassee river, and the whole action of the Board in relation thereto, were legislative, and whether any portion was usurpation or not, no action can be maintained against the county for any consequences resulting therefrom. What would be a nuisance if erected by an individual, is not such when erected by authority of law and by the public, so as to confer a right of private action against the public therefor ; and the same principle I think controls in this case that would had the bridge ■been built by authority of the Legislature.

The judgment of the Court below is affirmed.

The other Justices concurred.