text:
    Bidwell et al v. Whitaker et al.
    Ch. 122, R. S., of proceedings for the collection of demands against ships, boats and vessels, applies to contracts made and injuries received within the state only, and not to such as have arisen without the state, and gives a specific lien ,on the boat or vessel for all such demands mentioned in the first section of the ¡chapter.
    It is only where a statute is ambiguous in its terms, that courts exercise the power of so controlling its language as to give effect to what they may suppose to have been the intention of the law maker.
    Cabe reserved, from Wayne County Court.

      Van Dyke and Emmons, for plaintiffs.

      Hale and Lothrop, for defendants.
   By the court,

Whipple, C. J.

This cause comes before the court upon questions reserved by the county judge of the county of Wayne.

The facts upon which the questions of law arise are as follows: The steam boat Patchin was a boat owned and registered in Buffalo, at the time the plaintiffs did certain work, and furnished materials for the repairing of said boat at the request of the owner or master, by whom the debt was contracted, which is now sought to be recovered. It further appears that the plaintiffs are ship carpenters, residing in Buffalo, where the work w?s done and the materials furnished. In 1848 the claim of the plaintiffs was exhibited before the county judge, whcWssued process, by virtue of which the boat was attached at Detroit. A bond was given and the boat released; upon this bond the suit is brought.

The precise question submitted for our determination, is, whether, under our statute, a lien attaches when a cause of action accrues for any of the causes specified in the first section of chapter 122, entitled “Of ■ proceedings for the collection of demands against ships, boats and vessels.”

ft is not to he disguised that the solution of this question is involved in a good deal of difficulty, growing out of the conflicting provisions of ihe chapter above referred to. In behalf of the plaintiffs, it is contended that the statute does not give a specific lien, but simply provides a new rennedy for the recovery of demands accruing under the provisions of the first section. On the contrary, it is insisted by the defendants, that, by section 1, a lien attaches and is coeval with the cause of action, and that the other sections provide a remedy by which that lien is to be enforced.

A brief history of the legislation and judicial decisions on the subject, may be useful iu guiding us to a correct conclusion as to the intention of the legislature in substituting chapter 122 ii} lien of the preexisting law. At the time the present Jaw took effect, the act of 1839 was in force.

By the first section of that act, it was provided, “That every boat or vessel used in navigating the waters of this state, shall be liable, &c.” To enforce this liability the third and fourth sections provide for the filing of a complaint, and the issuing of an attachment for the seizure of the boat or vessel. No provision was made by which other claimants under the act could make themselves parties to the proceedings, but each claimant was left to p>ursue his remedy, without reference to the proceedings that may have been instituted by other claimants. The result was, that claims arising under the act were satisfied in the order in which the attachments were served.

The first section of chapter 122 provides, that “Every ship, boat or vessel used in navigating the waters of this state, shall be subject to lien thereon,” &o.:

1. For all debts contracted by the master, owner, agent or consignee thereof, on account of supplies furnished, &c., &c.; -

2. For all sums due for wharfage or anchorage of such ship, boat or vessel within this state;

3. For all damages arising from the non-jjerformance of any contract of affreightment, &c.;

4. For all damages arising from injuries done to persons or property, &c., when the same shall have occurred through the negligence, ¿sc.

Section 2 directs, that “ any person having such claim, &c., may make application to any officer authorized to perform the duties of a justice of the supreme court at chambers,'&e., for a warrant to enforce the lien” &c.

(Section 3 directs the manner in which the application shall be made.

Section 4 authorizes the issuing of a warrant, and the seizure of the vessel, &c., “ to answer all such liens as shall be established against it according to law.”

Sections 5 and 6 direct the mode of proceeding by the officer charged with the execution of the warrant.

Sections 8 and 9 provide for the publication of a notice for twelve successive weeks, which notice, among other things, shall “ require all persons who claim to have any demand against such ship, boat or vessel, &c., under the provisions of this chapter, to deliver an account of their respective claims to such officer, within three months from the first publication of the notice, or that the remedy against such boat or vessel will be forfeited”

Section 10 provides, that “ any person having any lien under the provisions of this chapter, upon the property so seized, may deliver to the said officer an account in writing of his demand,- accompanied by such affidavit as is hereinbefore prescribed in relation to the first application for a warrant; and he shall thereupon be deemed an attaching creditor, and be entitled to the same benefits, and subject to the same responsibilities,- as the claimant at whose instance sueh warrant originally issued.”

Section 11 declares, that “ all liens under this chapter upon the property so seized, an account jof which shall not be presented to the said officer within the time limited in the notice, shall cease.”

Sections 12, 13 and 14 provide the mode by which the proceedings against the ship, boat or vessel may be discharged!

Section 12 authorizes the application to be made for such discharge at any time before an order of sueh sale shall have been made.

Sec. 13 directs a bond to be given, with security, “to the creditors or claimants prosecuting such warrant, in a penalty double the amount of debts or claims sworn to,” &c. “ conditioned that the obligors therein will pay the amount of all such claims and demands as shall have been exhibited, which shall be established to have been subsisting liens' upon sudh ship, Sc., pwsuant to the provisions of this chapter, at the time of exhibiting the same respectively’’’

Sec. 16 authorizes a suit upon the bond so given; and “the attaching creditors respectively shall state in their declaration, their respective demands^ averring that the claim therefor was a subsisting lien on such ship, dec., at the time of the exhibition thereof, as hereinbefore provided,” &c.

After providing' for the sale' of the ship, boat or vessel, the 23d section directs that distribution of tbe proceeds shall be made “ among the creditors who shall have exhibited their claims as herein provided”

Sec. 36 provides, that “ no proceedings under this chapter, to enforce ihe liens authorized by its provisions, shall be bad against any vessel which shall have been seized by virtue of process issuing from any court of the United States having admiralty jurisdiction,” &c.; “but nothing in this section contained shall be construed to impair the validity of any Mens created by this chapter-,• the payment of which shall be decreed in any court in the United States.”

These quotations present, very clearly, the difficulties in the way of reconciling the various sections of the statute under consideration. The conflict is so palpable, as to render it quite impossible to harmonize its provisions, and make each section consistent with every other section with which it stands-connected.

With respect to the first section, it is- identical with the corresponding section of the act of 1839. The phraseology is slightly changed, but tbe legal sense is the same. By the first section of tbe act of 1839, every boat or vessel navigating tbe waters of this state is declared to be liable, &c. By tbe first sec. of chap. 122-, such boat or vessel is subject to a lien, &c.

In its largest sense, tbe word lien embraces every case in which property is charged with the payment of any debt or duty: to be charged with the' payment of any debt or duty, is equiyalent to being liable for tbe payment of any debt or duty. Either form of expression imports a right in rem. And it is important to observe, that the instances in which boats or vessels may be seized, are tbe same under both statutes. No distinction' whatever is made between foreign and domestic creditors ; nor does tbe first section of tbe present law, any more' than that of 1839, confine this-right to proceed, in rem, to debts created or liabilities incurred within this state, except in tbe single instance where the claim is for wharfage or anchorage. The two statutes are also substantially alike in respect to tbe mode of jnoceeding to enforce the claims specified in section one.

By the act'of 1839, an attachment issued upon the filing of a complaint, verified by affidavit. By the existing law, a warrant issues; both processes, however, perform the same office. It is true that the warrant in the second section is “ to enforce the lien of such claim or demand, and to collect the amount thereof.” This language would seem to imply that a specific lien was intended to be created by the' first section of the act, and that as a means of enforcing such lien, a warrant issues to seize the ship, boat or vessel. The sanie" inference is deducible from the fourth section, by which the officer charged with the execution of the warrant, is directed to “ attach, seize, and safely keep such ship, &c., to answer all such liens as shall be established against it, according to law.”

The remaining provisions of the statute of 1846, relative to the mode of executing the warrant; the notice to be given on the return of the same; the proceedings to be had by persons having claims against the ship, boat or vessel under the first section of the act; the manner of procuring the discharge of such ship, boat or vessel; the bond to be given upon such discharge; the remedy and mode of proceedings- upon- such bond for breach of any of its- conditions ;• the? order of sale and mode of conducting the same;' and the final distribution of the proceedsare a literal copy from the New York statute in relation to “ proceedings for the collection of demands against ships and vessels.” 2 R. S,. N. Y., tit. 8, p. 404.

That the whole of the New York statute was not intended to’ be adopted by our legislature, appears very clearly from the provisions of the first and second sections of that statute, which are as follows:

“ Sec.-1. "Whenever a debt, amounting to fifty dollars or upwards, shall be contracted by the master, owner, agent or consignee of any ship or vessel, within this state, for either of the following purposes:

“1. On account of any work done, or materials or articles furnished, in this state, for or towards the building-; repairing, fitting, furnishing or equipping such ship or vessel;"

“ 2. For such provision's and stores furnished, within this state, as may be fit and proper for the use of such vessel at the time the same was furnished;

“3. On account of the wharfage and the expenses of keeping-such vessel in port, including the expenses incurred in employing persons to watch her;

Such debt shall be a lien upon such ship or vessel, her tackle, apparel and furniture, and shall be preferred to all- other liens thereon,, except mariners’ wages.”

“ Sec. 2. When the ship or vessel shall depart from the port at which she was when such debt was contracted, to some other port within this state, every such debt shall cease to be a lien at the expiration of twelve days after the day of such departure; and in all cases such lien shall' cease immediately after the vessel shall have left this state.”

The difference between these provisions and those embraced in the first section of chapter 122 of our statute, are striking and very mate' rial. That a debt contracted for the'purposes specified in the first section of the New York statute, was intended to be a specific lien, is quite obvious from the language of that section. It is declared, in express terms, that “ such debt shall be ■ a lien upon such ship or vessel, and shall be preferred to all other liens thereon, except mariners’ wages.”

The'second section is equally explicit, by declaring, the circumstances' under which the lien created by the first section shall cease. We have already said that the first, section of our statute is the same, in legal effect, with the corresponding section in the act of 1839, and makes ships, boats and vessels navigating, the waters of this state, “ subject to a lien?’ for the debts specified in that section.

The language of the first section of our act, unlike that in the first section of the New York statute, does not, necessarily, import a lien. 14 is not said that “ such debt shall be a lien;” but declares that, for certain debts, every ship &c. “ shall be subject to a lien.” By the New York-law, the lien is created when-the debt is contracted; by our law1; such a' consequence does not, of course, follow, unless it appears from an inspection of the whole act that such was the intention of the legislature.

But the great distinction between the New York and Michigan stat= utes, consists in this r that by the first section of the New York statute the debt, in order to be a charge upon a ship or vessel, must have been contracted within- the state; while the first section of our statute imposes, in express terms, no such restriction. If such- a restriction was intended, it must be inferred by construing the first section with other parts of the statute.

The reason for confining the lien to-domestic debts,.and declaring that such lien shall cease when the ship or vessel leaves the state, has its foundation in a wise policy. JThe legislature of New York we aware, that to continue a lien after the skip or vessel has left their state and entered another sovereignty, would be productive of great mischief. No person exercising ordinary prudence would venture to contract for the purchase of a ship or vessel built in the state of New York, or owned by its citizens, if such ship or vessel, when she crossed the line which divided the jurisdiction of that state from another, continued to be burdened with liens created by the laws of the state where such ship was built, or by whose citizens she may be owned. A citizen of Michigan, in making such a contract, has in view the laws of the state where the contract is made. It would be unreasonable that he should be required to ascertain whether, by the laws of another sovereignty, the ship or vessel is encumbered with liens created by the laws of such sovereignty. He has a right to presume that the state of New York would not give to her local laws, intended for the benefit and protection of her own citizens, an operation beyond the limits of her own territory. That state fulfilled its whole duty to its citizens, when it gave a lien on ships and vessels within the state, for a debt contracted within the state. If the creditor allows the ship to leave the state, it is but just to citizens of other states, that the rights conferred by the law of the place .where the debt was created, should cease.

I have already said that the first section of the existing statute was borrowed from the corresponding section in the act of 1839. That section has received a judicial construction from this court. We held in 1842, that no lien was created under its provisions, until the ship, boat or vessel was actually seized by an attachment. The views expressed in 1842 were re-affirmed in 1849, after the most mature deliberation. Robinson v. Steam Boat Red Jacket, Ante 171.

The question then decided is not now open to discussion or review, especially as the opinions we then expressed have been concurred in by the highest courts in several of the states where the same statute exists. The important question decided in 1842 and 1849 was, that the act of 1839 was intended to afford a new and more efficient remedy for the collection of a certain class of debts, than was given at the common law. We repudiated the idea that the benefits secured by that act .were intended exclusively for our own citizens; but held that the statute was purely remedial, and that citizens of other states might avail themselves of its provisions, and enforce their claims, whether those claims originated in Michigan or in a sister state.

The counsel, in arguing the cg§e before us, do not pretend to controvert or impugn the correctness of the views we expressed in 1842 and 1849, but contend;-very earnestly, that, while those views may be spund when applied to the act of 1839, they are inapplicable to a law essentially different, and which was substituted for that of 1839. It vyas urged, that while that act conferred no exclusive benefits upon our own citizens, that the law now in force was intended to secure to them rights tó the exclusion of citizens of other states.

That it is competent for a legislature to confer upon its own citizens peculiar rights, is not denied. In doing so, t)9wever, they are supposed to be controlled by reasons so overwhelming, or views of policy so just, as to commend its action to the approval of the wise and the enlightened.

Is it consistent with justice, that rights secured to our citizens by the act of 1846, should be denied to the citizens of a sister state? Is there any more sacredness attached to a claim which a citizen of Michigan may have, for having supplied a boat with a barrel of flour, than to the claim of a citizen of Buffalo, who has supplied the same boat with a quarter of beef? The moral obligation to pay the claim, is just as binding upon the owners of the boat in the one case as in the other. The nature of this obligation remains the same whether it was incurred at Buffalo or Detroit. Wjhy, then, should not their legal rights and remedies be the same in any forum where that obligation is sought to bo enforced ?

This question admits of but one answer. A liberal and just policy would seem to require that the remedies provided for our citizens, for ■tire vindication of their rights or the redress of their wrongs, should not be denied to the citizens of a sister state, who may appeal to oijr judicial tribunals for justice. But would the construction contended for by the defendant^, confer a benefit upon our citizens ? It is contended that the person who furnishes supplies, the mechanic who performs labor, the material-man who provides materials, for any ship, boat or vessel, would have a lien on such ship, boat or vessel. The same section, hqwever, contemplates a lien in fctv&r of those who may he entitled to damages for the non-performance of any contract of affreightment, or of any contract touching the transportation of persons or property; and for all damages arising from injuries done to persons or property hy any ship, boat or vessel, where the same shall have occurred through the negligence or misconduct of the master or hands employed therfe on.

Contracts of affreightment, and for the transportation of persons and property, are in nine cases out of ten made without the state; and as we cannot give to our statute an extra-territorial operation, it would follow, that the large and important class of cases specified in the third subdivision of section one, would be excluded from the benefits of the statute.

The same remarks will apply to cases arising under the fourth -subdivisiop. If, through negligence, the goods of a merchant, which may include his entire fortune, are lost, ten rods beyond the line which separates our jurisdiction from that of Ohio, he can have no claim to the benefits of the statute. So if, through like negligence, one of our citizens loses a limb, by the explosion of a boiler, he can claim no rights under the statute, if the injury occurred within the jurisdiction of another stat$.

These are facts which the legislature must he presumed to have known; and however they may have been disposed to draw a line of distinction between our own citizens and the citizens of other states, we are not justified, except the contrary manifestly appears, in supposing that rights were intended to be conferred upon one portion of our citizens which are denied to others. This distinction the legislature have not made in the first section of the act in question. By that section, a remedy is given for the enforcement of rights and the redress of injuries, of which every citizen of our'own state, and those of other states, may claim the benefit.

But there is another, and it seems to me almost conclusive view to be taken of the question I am now discussing. The second subdivision of section one is in these words: “For all sums due for wharfage or anchorage of such ship, boat or vessel within this state’’

It may be asked with emphasis, whether the restrictive words, “within this state,” would not have been' found in the other subdivisions of the same section, if the legislature iptend.ed to confine the remedy to ■contracts made or injuries received. within the state. The fact that these words are to he found in the second subdivision, indicates that they were intentionally omitted in the first, third and'fourth subdivisions of the same section. And this inference would be irresistible, if the language of that section was not controlled by other provisions of the act, to which I have adverted, and which I now propose briefly to -examine.

The second section authorizes the issuing of a warrant “ to enforce the liens,” <fcc. This would imply that the seizure of the vessel, by virtue of the warrant, did not create the lien, but that the object of the seizure is to give effect to an existing lien. The tenth section is equally .explicit. Any person having a lien upon the property seized, is to deliver to the officer an account in writing of his demand, duly verified: at is not the delivery of the demand, thus verified, which gives the lien; for by the words of the act, no person is authorized to file his demand, •¡unless he has a subsisting Usn.

The same inference is to .be drawn from section 11, which declares that all liens shall cease, an account of which shall not be delivered to the proper officer within a specified time. The condition of the bond given under section 13 is susceptible of but one construction. The obligors therein bind themselves to pay all such demands as shall have been exhibited, and which shall be established to have been subsisting liens upon such ship, boat or vessel, “ at the time of exhibiting the same respectively'.' This language is unambiguous, and clearly imports that ■a lien actually subsisted at the time of exhibiting the claims specified in the first section. Section 36 shows, very conclusively, that the object of the proceedings js not to create, but to enforce liens.

If any doubt existed as to what the legislature intended, judging of that intention by what appears on the face of 'the act itself, that doubt must vanish when we come to consider, that in an action upon the bond given under section 13, the attaching creditor must aver that his claim was a subsisting lien on the ship, boat or vessel, at the time the same was exhibited, as provided by section ten. If the averment is made necessary by the statute, it must be proved on the trial: this the .claimant could not do, if, as contended by the plaintiffs, the boat was not subject to a lien when the claim was exhibited. We cannot attribute to the legislature the folly c of requiring the plaintiff to avei^ anclprove a fact, when by the.terms of the ¡statute no such fact existed.

Whatever, therefore, may he our, views respecting the interpretation to be given to the first section, separately considered, or whatever opinion» we may entertain respecting the impolicy of confining the remedy given by the statute to contracts or injuries arising within this state, we are constrained to say, that, construing the first section in connection with the other' sections of the same act, a specific lien is given by that section, and that the other sections provide a remedy by whiefe it is to be enforced. I have struggled to arrive at a different conclusion, believing, as I do, that a policy more liberal and enlightened towards citizens of other states ought to prevail, and knowing full well that this conclusion will’ exclude' from the benefits of the statute a large class of our own citizens, from rights secured to Others.-

But the inferences to be drawn from a literal interpretation of the first section, must be controlled by the clear and express language to be found in other sections of the same statute, although the policy of the-act may to some extent be defeated. It is only when a statute is ambiguous in its terms, that courts exercise the power of so controlling its language as to give effect to what they may suppose to.have been the intention of the law maker. In the statute now before us, the language admits of but one construction. No doubt can arise as to its meaning. It must therefore be its own interpreter. We are not permitted to look out of, or beyond it, to ascertain whether the-legislature' may not have intended what, upon the face of the statute, they have failed to express.

Certified accordingly.-


source: Caselaw Access Project

license: Public Domain

text:
    Freeman v. Freeman.
    Where in chancery the order for the appearance of a non-rosident defendant in a divorce case, was not in compliance with seo. 12, ch. 2, tit. 7, part 2, R. S. 1888, tut was the same as in other cases of non-resident defendants, the decree of the Chancellor granting' a divorce was reversed for want of jurisdiction.
    Appeal from tire Court of Chancery, third circuit. A petition for a divorce was filed against a non-resident defendant, under R. S. 1838, and. the following order was made for the appearance of the defendant, viz:
    “ Melaneton Freeman, petitioner, v. Rebecca Freeman, respondent.— It satisfactorily appearing to this court that the defendant in this cause, Rebecca Freeman, is not a resident of this state, but that she resides in the city of New York: On motion of Johnson and Martin, solicitors for petitioner, it is ordered, that the said defendant cause her appearance in this cause to be entered within four months from the date of this order, and that, in case of her appearance, she cause her answer to said petition to be filed, and a copy thereof to be served on the petitioner’s solicitors within forty days after service of a copy of said petition and notice of this rule, and in default thereof said petition be taken as confessed by said defendant. And it is further ordered, that within twenty days the said petitioner cause a copy of this order to be published in the state paper, and that said publication be continued in said paper at least once a week, for eight weeks in succession, or that he cause á copy of this order to be personally served on said defendant at least twenty days before the time above provided for her appearance.”
    Which order was published as therein required ;> and the' defendant not appealing, and testimony having been taken in the cause according to the rules and practice of the court, a decree was granted for a divorce from the bonds- of matrimony.
    The court held: 1. That as the order did not comply with sec. 12, ch. 2, tit. 'I, part 2, R. S. 1838, the decree was wholly void for want of jurisdiction in the court. 2. That the order for the appearance of the respondent should have included a notice of the natwe of the petition.

      Campbell, for the appellant.

      Lothrop and Duffield,• for respondent


author: Wing, J.

text:
    Comstock v. Draper.
    A. and B. made tlieir promissory noto, payable to the order of C., at tiie Farmers’ and Mechamos’ Bank at Pontiac, arid C.' and D. endorsed the note in blank, and it was then discounted by the bank for the makers. Afterwards a judgment was obtained on the note against D., in the name of the bank, and E. was appointed receiver of the bank by the court of chancery. E. took a now joint and several note from C. and D. to himself, in part payment of the judgment, which last note was transferred to defendant after it became due, and the law under which the bank was organized, commonly called the general banking law, was subsequently adjudged to be unconstitutional. Held, That the illegality of the original transaction affected the new note, which was void, as there was no new consideration.
    Error to Oakland Circuit Court. Charles Draper sued Comstock in the circuit court, and declared in- assumpsit oh' a joint and several promissory note, made by Comstock and Aáb B.- Hadsell, on' the 19th October, 1840, for $70 91, payable to William Draper or order, and endorsed by him to the plaintiff.' The defendant put in a plea, stating that Orison Allen and A. S. Allen, on' lltli April, 18-38; made their promissory note for $100, payable in ninety days to thfe'ordei- of Corn-stock, the defendant, at the Farmers’ and Mechanics’ Bank, at Pontiac, which note was endorsed in blank by Comstock and Asa B. Hadsell, and then discounted by the hank for the makers’. That after the note' became due, a suit was brought by the hank against Hadsell as endorser, and a judgment obtained against him by the bank, oh the'15th October, 1839’, for' $TT0 29 damages. That on the 19th October, 1840, the defendant and Hadsell gave th'e note'on1 which the'present suit was brought, to William Draper, who was then receiver óf the Farmers’ and Mechanics’ Bank, under an order of the court of chancery, in part payment of the aforesaid’ judgment.- That a-ftei- the note became due, and on or about the 20th October, 1840, William Draper endorsed it to the plaintiff. That the Farmers’ and Mechanics’ Bank was organized under an act of the legislature of the state, entitled “ An act to organize and regulate banking associations,” approved March 17,1837, and that the hank never had a legal existence! To-'this plea the plaintiff demurred, and the defendant joined in- demurrer; an'd the demurrer having been sustained by the court below, and judgment rendered for the plaintiff, the defendant sued out a writ of error to this court, where the cause was argued by

      Stevens, for the plaintiff, in error.
    • Draper, in person.
   By the court,

Wing, J.

As the case is presented by the pleadings, the defendant in error must be held to stand in the same position with the payee of the note, and hold the note subject to the same defence that could have been made to it in the payee’s hands. This results from his having received the note after it was past due. He is affected by all the equities between the original parties, whether he have notice thereof or not. Story on Bills, 19 A

It is conceded that the law under which the Farmers’ and Mechanics’ Bank of Pontiac was organized, was unconstitutional, and therefore the bank had no legal existence. This was fully settled in the case of Green v. Graves. In that case, suit was brought by the receiver of the Bank of Niles, on a note given to the bank. The receiver was not permitted to recover: as his principal, or the institution which he represent■ed, could not recover, he could not.

In this case the note was given to William Draper, and was made payable to him or his order, but it was in fact made to him in his representative capacity, because he was receiver, and in payment or discharge of a debt due to the so-called Farmers’ and Mechanics’ Bank of Pontiac, and for no other consideration: he appears not to have had any interest in the note, except in his character of receiver. ' He could not have owned the judgment, for, being in the name of the bank, there were no means of making a legal assignment: whatever may have been the force and effect of the judgment standing in the name of the bank, there was no legal person with whom William Draper could contract for it. Then the consideration of the note being the judgment or the debt evidenced by it, could William Draper, as receiver — the representative of the bank — make a more binding contract with the debtors of the bank, than his principal could make ? I do not now speak of the consideration of the note; I simply put the matter upon the basis of power, or want of power in the receiver to do what the bank could not do; and it appears to me the answer must be in the negative.

That the original note was void, because it grew out of a transaction with an illegal bank, and because the consideration of the note was illegal, cannot be disputed, since the late decisions of this court, and particularly the decision in the case of Hart v. The Michigan State Bank. The original parties were particeps criminis and in pari delicto. If the suit on the original note had been defended on the ground that the consideration of it was entirely an illegal currency, and paid in furtherance of an illegal object, no judgment could have been recovered upon it; at the least, as the law is now understood to be, and as it is stated in the case cited, and also in the cases of the State of Michigan v. How et al., and McReynolds v. Goddard et al. Vide Appendix. It was held in those cases, that ex turpi contractu, non oritur actio.

But it is insisted that the judgment was valid, and could not be impeached, and therefore constituted a good and legal consideration for the note; that no defence can be made to this note, which could not have been made to a suit on the judgment.

It is not quite easy to understand this doctrine as applied to this case, for it must be admitted that no suit could have been brought upon the judgment. There was not and could not be any person competent to sue. As to the general rule in relation to the force and effect of a valid judgment, there can be no doubt; and it perhaps maybe conceded, that if a judgment should be recovered upon a note to which fraud might have been a defence, and the judgment debtor, with full knowledge of the fraud, should give a note for the amount of the judgment, he could not contest the note upon any grounds; at all events, not upon the ground of fraud, merely personal to himself, and in which the public are not interested. •*

But the question now presented is one involving the illegality of the original note. It is not held to be void for the good of the makers, or on account of any merit in them, hut on the ground of piiblic policy, to protect the public against the violation of a positive statute.

It is a well settled doctrine in the English and American books, that an illegal transaction cannot constitute a good consideration for a promise. If the connection between the original illegal transaction and the new promise can be traced, if the latter is connected with and grows out of the former, no matter how many times and in how many different forms it may be renewed; it cannot form the basis of a recoyery, for repeating a void promise cannot give it validity.

In this case, no new element has entered into the new promise. The. parties are substantially, and in law, the same. The consideration is ¡the same, and the parlies all have actual or constructive notice. The original unsoundness of the debt has flowed down to and is incorporated into the new promise. But it may be said the stream has been purified in its passage; that the judgment has purged the original taint, and the note is nq longer connected with and does not grow out of the original illegal contract, but grows out of the judgment. Js this true? The judgment can scarcely be said to have purified the stream : it may have dammed it, and stopped the continuous flow of the current, for the period the judgment existed as a judgment; but wh.en the judgment was discharged, the dam was removed, the impurities of the fountain again flow on, and are carried along by the current, and mingle with the new promise.

If we give all .the effect that can be claimed for a judgment, and if WO assume that it could not have been impeached by any proceeding at law or in equity; that the position pf the plaintiffs in the judgment \y^s impregnable so long as they maintained it, and then- judgment was kept in full force; yet if their position was voluntarily surrendered by a discharge of the judgment, and their rights were deprived of the protection which the law had given to them, and a new note was taken for the original, qv a part of the original indebtedness, without any new consideration, can they complain that it shqukl he held subject to the gaipq dqfence-whiclj rpight have been made to the original note ? If the judgment could be said to have imparted to the debt any support, did it not pass away with-that by which it was sustained? I think it did. Considerations and principles of a higher character than such as would be applicable to the case- of a private fraud (cited above) must prevail.

J was somewhat puzzled, at first, to discover how the effect claimed for the judgment was to be obviated; but on looking into the decisions of the King’s Bench, I think it will be found that no insuperable barrier is presented by the judgment.

In the case of Ribbans v. Crickett, 1 Bos. and Pul. 264, plaintiff furnished victuals to voters, which was unlawful. On. being sued, defendant paid money into court, but the court would not allow it to be applied in payment of the illegal contract. Here the payment of money into court was an admission of every cause of action, either well or ill pleaded, which could be the subject matter-of a promise. This was a subsequent promise in effect, and of the most binding character; for paying money into court enures to the benefit of the ¡fiaintiff, even in cases where there is no consideration.

In Aubert v. Maze, 2 Bos. and Pul. 371, plaintiff had paid the difference in certain unlawful insurances, after the transaction was passed, and sued for the balances, and though arbitrators awarded a sum due, the court set aside the award. Lord Eldon held there was no difference between paying the money generally in the adventure, and paying at the express request of the defendant. That being one remove from the illegal transaction, does not alter its nature; it is still connected with it-

In the case of George v. Stanley, 4 Taunton 683, defendant lost money at play, and gave notes for it, which were passed to the plaintiff by the payee. They fell due, and he gave the plaintiff other notes in lieu thereof, and being unable to meet these, he confessed a judgment, execution was issued, and the money was made. After all this, the court suffered an issue to be made, to see if the plaintiff could be implicated or charged with notice.

In Be Begnis v. Armistead, 10 Bingham 107, plaintiff and defendant carried on a theatre in London, which was unlicensed: plaintiff was to pay certain matters, and defendant certain other specific expenses. Plaintiff paid, at the request of defendant, several sums for him. After the whole transaction was ended, a settlement was made, and defendant gave his acceptance for the sum due. Held, that as the debt originated in illegality, the subsequent settlement and acceptance were illegal and void.

These cases show that courts have gone far to sustain a defence to an illegal contract, or a contract remotely connected with the illegality, if it spring fropa Qr is based upon it. A plaintiff is not permitted to get into court through an illegal contract. The court will not in any way aid a guilty party. The contract is still executory.

If I am correct in these views, the conclusion follows, that plaintiff in error should have judgment upon the demurrer.

Judgment reversed.

       This caso is not in the possession of the reporter. Tt mil he published in the next volume.


author: Wistg, J7

text:
    Harrington v. Worden.
    Variance. — In an notion on a warranty of a span of horses, the declaration stated the consideration to be a yoke of oxen of the value of $80, and a note for $20, and on the trial it appeared the note was for $10 only. The variance was, held to be fatal.
    Had the averment been, the sale was for a valuable consideration, to wit: for one yoke of oxen and a note for $20, it would not have been necessary to prove with precision the items of the specification.
    Error to Oakland Circuit Court.
    Worden sued Harrington in the circuit court on a warranty of a span of mares. The declaration stated, that in consideration Worden would, at the special instance and request of Harrington, buy of him a certain span of mares, Harrington undertook and promised that the mares were sound, except in one fore foot, &c., and that Worden, confiding in the promise, bought the mares, and gave in exchange therefor one yoke of cattle of the value of $80, and a note for $20, &e. Defendant plead the general issue. On the trial the plaintiff proved a breach of the warranty, and that he gave for the mares a yoke of oxen and a note for ten dollars only. Defendant asked the court to charge the jury, that as the plaintiff had failed to prove the value of the oxen as alleged in the declaration, he could not recover. The court stated to the jury it was not necessaiy to prove the value of the oxen. Defendant then requested the court to charge the jury, that, inasmuch as the plaintiff had not proved the consideration as stated in the declaration, they must find a verdict for defendant, which the court refused to do, and the defendant excepted. A verdict was returned for the plaintiff, and judgment having been rendered thereon against defendant, he brought a writ of error.-

      Q. Draper, for the plaintiff in error.

      Manning, for the defendant in error.
   By the court,

Wistg, J7

The note proved to have been delivered to defendant was a ten dollar note. It is urged, the averment of the oxen and the note being given in exchange, is an immaterial averment. The test of the truth of this position, is, whether the action can be sustained without it. If we strike this out, there remains no consideration stated on the record for defendant’s undertaking, and the declaration would be bad, as no binding contract would be stated. It is said, the consideration stated that the plaintiff at the special instance and request of the defendant, would buy the mares, is a sufficient consideration for the promise of the defendant; but suppose the plaintiff had failed to buy fire mares as he had agreed to do, and the defendant had brought an action to enforce it, what would be the measure of damages 2 Nothing was' agreed' to be given for the mares;- all that the defendant in that ease would have agreed to do, was simply to buy; surely, it would be a void contract, and the court could not enforce it.

But assuming, as the parties seem to have assumed, that the consideration for the undertaking of the defendant was the Oxen and a twenty dollar note, we must hold that the averment is material for the reason we have given; and the plaintiff is bound to prove it as stated. Issue is taken upon it by the plea. Great accuracy is required in the statement of the consideration, which in an action of assumpsit forms the basis of the contract, and if any error is made in the description of it, the consequence is, the whole contract is misdescribed. Chitty’s PI. 326. If it is true, as argued- by defendant’s counsel, that it is quite immaterial what the value of the oxen was, as the defendant was to receive them; and as the consideration in this case would not furnish the rule of damages, still the description of the note would he material. The note forms a part of the entire consideration. The ten dollar note proved is not the twenty dollar pote stated in the declaration. The question is not as to its value; it is stated to have been a note of'twenty dollars, i. e. a note for the payment of twenty dollars. Then if, as shown by the proof, it was in fact a note of ten dollars, it is no more the thing described than a boot would have been: consequently, the consideration of the promise was misdescribed. It is -well settled that descriptive averments must be proved with a degree of strictness extending (as Mr. Greenleaf says) in some cases even to a literal ¡rrecision. No allegation descriptive of that which is legally essential to the claim or charge can ever be rejected. 1 Starkie’s Ev. 373. See authorities cited in I Gveenleaf’s Ev., sec. 56, p. 68.

"The description given of the note in the declaration is matter of substance : for it goes to the identity of the note. The consideration might have been sufficiently well set forth by a less particular description of it, In that case jt would not have been necessary to prove the precise amount of the note; but the particular statement of the amount has become material in this case by being inseparably connected with the essential allegations. Had the averment beep, that the sale was for a valuable consideration, to wit: for one yoke of oxen and a note for twenty.dollars, it would not have been necessary to prove with precision the items of the specification, But where, as in this case, the action is for a breach of warranty upon the sale of personal chattels, and the plaintiff has set forth the price paid for the goods without a videlicit, he is bound to prove it as alleged, it being rendered material by the form of allegation. Durston v. Tuthan, cited in 3 T. R, 67; Symmons v. Knox, 3 T. R. 65; Arnfield v. Bate, 3 Maule & Sel, 173; Stephen's Pl. 419, 420; 1 Chilty’s Pl., 348, 6th edit.

The cases in which averments were considered immaterial, cited from Cowen & Hill’s Notes 514, do not apply to this pase.

We are, therefore, of opinion that the judgment of the circuit court ímjst bp reversed, and that the case must be remanded for a new trial.

Judgment reversed, <éc,


author: Mundy, J.

text:
    Austin v. Grant et al.
    A bill filed to foreclose a mortgage stated that tbe defendant, being indebted to complainant in the sum of $750, confessed five several judgments for $150 each, before a justice of the peace — setting out the judgments as they were entered on the justice’s docket — and that the mortgage was given to secure the payment of the judgments in one year. Defendant, by his answer, to which a replication was filed, admitted the judgments and mortgage, but denied the indebtedness, and insisted the judgments were void. The cause was heard on the pleadings, and the court, being of opinion the judgments confessed before the justice were void for not complying with the statute, dismissed the bill with, costs.
    Appeal by Grant from the Court of Chancery*

      Davidson and HoTbvoolc, for the appellee.
    Stevens, for the appellant.
   By the court,

Mundy, J.

The hill alleges that the defendant Grant, being indebted to the complainant in the sum of seven hundred and fifty dollars, to secure the payment thereof with interest, confessed before a justice of the prnace, five several judgments, each for one hundred and fifty dollars, with costs, setting out such judgments as they-were entered upon the justice’s docket. It then alleges that Grant, being so indebted, and having consented that said judgments he entered therefor, did on the 25th day of April, 1840, in order to secure the'payment of each and every of said judgments, im one year from the date thereof, execute and deliver the mortgage. In setting out the mortgage, it is-shown that it was upon the condition that, if Grant should pay to the complainant the sum of seven hundred and fifty dollars, with lawful interest thereon, in one year from the date of the mortgage, according to the condition of five judgments, bearing even date therewith, of one hundred and fifty dollars each, rendered by Nathan S. Philbrick, a justice of the- peace of Oakland county, by Grant to the complainant, as a collateral security, the mortgage should cease and be void; hut in case of nonpayment of the said judgments, with the interest thereon, the mortgagee was authorized to sell the premises, as under the usual power contained in mortgages.

The entry of each of the judgments is as follows:

' “ Julius A. Austin v. Charles Grant. — Oakland county,' April 25, 1840. In justice’s court, before ÍT. S. Philbrick, justice of the peace in the county aforesaid. Defendant confessed judgment in favor of the above plaintiff, in writing, for the sum of one hundred and fifty dollars, and against defendant in the above entitled suit Execution to stay one year from date: April 25,1840. Judgment entered up accordingly for the same. Damages, . . $150 00

Court, for judgment, 75

$150 75”

The defendants, in their answer, deny the indebtedness of Grant, as stated in the bill, and set out various facts going to show usury in the loan of a less sum of money by Grant of the complainant. They admit that Grant, on the 25th day of April, 1840, made and delivered to the complainant a mortgage for the sum of seven hundred and fifty dollars and interest, paj^able in one year, as is alleged in the hill of complaint; the acknowledgment and recording of the mortgage, as stated in the bill, and that it was upon the conditions therein mentioned. They admit that the mortgage was executed and delivered after the confession and" entry of the judgments set forth-in the bill of complaint: that Philbrick, at the time of the entry of the judgments, was a justice of the peace of Oakland county; but they say that they were not entered according to the provisions of the statute, and are null and void; and they deny that there is anything due upon the judgments, to Austin.

The answer was without oath, that being waived. There was a general replication, but no proofs having been taken, the cause was heard upon the pleadings.

It is obvious that the judgments were not rendered or entered conformably to the Revised Statutes of 18-78, and are therefore void. 1 Doug. Mich. R. 197. The indebtedness of Grant, as stated in the bil1, being denied, our only inquiry is, as to the effect of such admissions or statements in the answer as are responsive to the bill.

The bill, after stating the indebtedness of Grant to the complainant, and the confession and entry of the judgments, alleges that Grant, being so indebted to the complainant as aforesaid, and having consented that the judgments be entered therefor, in favor of the complainant, in order to secure to the complainant the payment of each and every of the judgments, in one year from the date thereof, executed and delivered the mortgage. Responsive to this is the admission of the defendants, that Grant did execute and deliver the mortgage for the amount of seven hundred and fifty dollars, and interest, payable in one 3'ear, as is alleged in the bill.

The allegation in the bill is, that the mortgage was made to secure the payment of the judgments; and to this effect is the admission of the defendants.

It is insisted on the part of the defendants, that the indebtedness of Grant being denied, and the judgments, to secure the payment of which the mortgage was given, being void, that there is nothing in the case, as it is presented to the court, upon which the mortgage as a security can be sustained, or to authorize its foreclosure.

It is said in reply, that it is unnecessary to prove the indebtedness.' that it is enough to prove the execution of the mortgage, or, which is the same thing, that its execution when admitted, is sufficient. This proposition is not sustained by the ease referred to in 2 Sandford’s R. 364. The point decided in that case, was, that the allegation of indebtedness was immaterial and need not be proved, but that the complainant would be entitled to a decree on the statement of the execution of the bond and mortgage; the same having been proved, as appears by 'the case.

If the judgments wheirthe mortgage was executed had been valid, affording the evidence of an existing indebtedness, the admission of the defendants that the mortgageuvas made to secure their payment, connected with the subsequent admission responsive to another allegation in the bill, that the mortgage was executed after the confession of the judgments mentioned and set forth in the bill, would be enough to authorize a decree.. Such a case would be analogous to the one just referred to. Nor does the proposition of counsel derive any support from the case referred to in 2 Sanford’s R. 630. It was decided in that case, that where a mortgage was executed, as appeared by its own terms, to secure sundry liabilities incurred for the accommodation of the mortgagor, and it recited the execution of his bond of the same date and tenor with the mortgage, but no such bond was ever delivered, that the Mortgage wáá ílóveztlieless valid. The vice chancellor, upon this point, 'said: “It is next objected, that, as the bond recited in the mortgage was never delivered to Berrien, the mortgage Was not valid in its inception, 'and never had a legal existence. That there is no mortgage debt to sustain the mortgage. The testimony shows that there never was any bond executed. The recital in the mortgage, mentioning a contemporaneous bond of the same date and tenor, is, therefore, erroneous. The mortgage was nevertheless delivered., and it aimed to secure liabilities which were in no manner dependent upon the bond recited, or upon any bond.”

So that in this case the mortgage having been given to secure the mortgagee against certain liabilities which he had incurred on behalf of the mortgagor, there was something to sustain it, and for which, as a security, the mortgagee had a right to resort to the mortgage.

Sujipose the bill of complainant had omitted the preliminary statement of indebtedness — and this it might well have done, as such statement is an immaterial «ne-“ — and had averred, that on the 25th day of April, 1840, the defendant Grant confessed before a justice the judgments, setting them out, as is done in the present bill: that Grant afterwards executed and delivered the mortgage to secure the payment of the judgments, could it be said (the judgments being void) that the mortgage could be of any effect as a security? I think not; and yet this is the very case presented here by the pleadings. The judgments being void, they afforded no evidence of indebtedness-“-there was nothing due upon tliem-^-there was no money to be paid according to their condition, as it is 'expressed in the condition of the mortgage deed — and there was no indebtedness, for the non-payment of which the mortgage could be foreclosed.

The decree of the court of chancery must be reversed, and a decree entered in this court that the complainant’s bill be dismissed with costs.

Decree reversed., and bill dismissed with costs.


text:
    Smith v. Village of Adrian.
    Where, in declaring for a penalty given by ch. 41, R. S., for selling spirituous liquor without a license, the plaintiff adopts 'the form of declaration given by .see. 32, he cannot be required, on 'the trial, to .elect the penalty or penalties he ■seeks to recover. .
    Where é. and M. are engaged as partners in keeping a recess, and selling liquor ■without a license, the selling of liquor by M. is the act of both, and may be given in evidence against S., in an action against him álone for the p'enalty.
    To recover the penalty given by seo. 1, oh. 41, R. S., for selling liquor without a license, it is not necessary for plaintiff to show defendant assumed to act as tavern keeper or common victualler..
    In a suit hy a corporation, created under the laws of the state, it need not prove its corporate existence under the general issue, unless .defendant has given notice, with his plea, that plaintiff is not a corporation. R. S., ch. 116, see. 6. It is otherwise at common law.
    The charter and by-laws of municipal corporations are subject to general legislation.
    In an action for the penalty given by statute for selling liquor without a license, plaintiff need not prove defendant had no license, which will be taken to be true, unless disproved by .defendant. Neither will the plaintiff bo requited to show the question of ^license or no license was submitted to the people at the preceding charter or township election, inpurauanee of eh.41, R. S.
    AVhether the proviso of seo. 18, eh. 41, R. S., is void — query. If it be, the other provisions of the chapter are valid and in force,' and it is not a sound objection to the validity of the law, that it prohibits the sale of spirituous liquors without a license, and no license can be obtained after a vote of no license.
    Case reserved from Lenawee Circuit Court.
    Morey, for plaintiff, iu error.

      Baker and Millerd, for defendants, in error.
   By the court,

Wing, J.

This suit was commenced before a justice ©f the peace, to recover a penalty alleged to have been incurred by William Smith, under the provisions of chapter 41, R. S. The plaintiffs declared in the form prescribed by sec. 32, claiming one hundred dollars for certain penalties and forfeitures, which Smith had incurred and was justly liable to pay, by reason that he did, on the 20th day of March, 1849, and at divers times between that day and the 18th day of April, in said year, at the village of Adrian, in the county of Lenawee, do aud commit certain acts in violation of the laws of the state, touching the sale of wine and spirituous liquors, &c.

The defendant plead, in the form prescribed by the same section, that he was not indebted to the plaintiffs as above alleged. After hearing the case, the justice rendered judgment against the defendant for the amount claimed, and costs. The cause was appealed to the couuty court for the county of Lenawee, and again tried, before a jury, and the jury not agreeing, and being discharged, the parties submitted the cause to the decision of the court, upon the pleadings and proofs submitted to the jury, and the county court also rendered judgment against the defendant for the sum claimed, and costs. On the trial, the defendant’s counsel took exceptions to the ruling of the judge, and the case was removed to the circuit court- by certiorari, and reserved by the circuit judge for the opinion of this court, on the questions of law arising iu the case.

There are a number of points made, in which error in the ruling of the county court is alleged:

1. It is alleged the court erred in refusing to compel the plaintiffs to elect for what penalty or penalties they sought to recover, — a motion being made to that effect by the defendant, after the jury was sworn Und the plaintiffs had opened their cause. We think there was no error in the judge refusing the order sought by this motion. It is manifest, from the concluding part of the section prescribing the form of the declaration, that it was intended by the legislature that the plaintiff should have great' latitude in making out his case, and that neither plaintiff or defendant should be tied up to any specification. There is nothing in the act indicating an intention that any further specification should be given than was provided for in the form of declaration. Experience had shown that in this class of cases it was extremely difficult to prove a violation of the license law: and for this reason, doubtless, the legis-. lature gave the form of declaration, and added, “ under such declaration, evidence may be given of any violation of any provision or provisions of this chapter.”

2. It is insisted that the court erred in permitting the acts of Smith & Manning, and the acts of Manning alone, to be given in evidence.

It was proved that Smith and Manning were engaged as partners in keeping a recess in the Franklin House, in the village of Adrian. The sale of liquor by both of these persons, or by Manning, was the act of Smith — he jsarticipated in the profits — the act of one was the act of the other; and either of them might have been prosecuted under the law. It was, therefore, competent to receive the evidence to which objection was made.

The general principle in relation to crimes, torts and misdemeanors, is, that all persons who participate in. the act done are severally liable, if the offence was several or could be committed by one. The defendant in this case could not object that Manning was not joined; if he could, he could only have done so by a plea in abatement. 10 John. Rep. 247; 1 McCord 273; Wharton’s Am. Crim. Law 518; 4 Mass. 431. But in such a case as this, where two were interested in the sales and managed the recess, it is probable that but one satisfaction could be had. See 4 Mass. 431; 1 Denio 540.

3. That a recovery could not be had under the first section, as there was no evidence defendant assumed to act as an innholder or common victualler.

We think it was not necessary, to sustain the action under the first section, to prove thatjthe defendant had acted as an innholder, or tavera. keeper, or common victualler. The action was sustained under the first section, by proving that the defendant was a seller of wine, brandy, rum or other spirituous liquors, to be used in or about the house.

We think the proof would have sustained an action under either of the first three sections.

4. That there was no proof of the corporate existence of the plaintiffs.

This is not necessary where the plea is in effect a plea of the general issue. By this plea the right of plaintiffs to sue is conceded. At common law it would have been otherwise. The statute provides, that “ in suits brought by a corporation created by or under any statute of this state, it shall not be necessary to prove on the trial of the cause the existence of the corporation, unless the defendant shall have pleaded in abatement, or given notice under his plea, that the plaintiffs are not a corporation,” &c. R. S., ch. 116, sec. 6.

In Hew York they have a similar statute. See tlie case of The Methodist Episcopal Church v. Tryon, 1 Denio 451. If it were necessary to prove the existence of the plaintiffs as a corporation, it is shown by the act of incorporation, and the acts amendatory thereto. Sess. L. 1841, p. 66, secs. 1, 2, 3. •

5. That no recovery can be had on the part of the corporation for a penalty, except by virtue of some by-law thereof. And no proof was given of the existence of any by-law in regard to the sale of spirituous liquor.

The provisions of the act incorporating the village of Adrian, and the acts amendatory thereto, and the by-jaws, so far ás they relate to the power of licensing, are subject to the provisions of chapter 41. The legislature have the right to legislate upon that subject, as well for the village of Adrian as any or all of the towns in this state. This power was not divested by the charter of the village or the laws amendatory thereto. It is a political corporation, and subject to general legislation. This subject is fully discussed and settled in the case of The People v. Morris, 13 Wendell 325. The general law does not exempt any village or city from its operation; on the contrary, it is made expressly applicable to them. See sections 18 and 31.

The objection made would seem to embrace the idea that the corporation could not prosecute for any penalty for which provision was not made by the charter and its amendments, or the by-laws under them; but. we see no valid objection to a suit under the general law in the name of the corporation. The prosecution is not for their benefit. It was competent for the legislature to direct in what name suits might be brought in cities and villages, and in what name in towns.

6. That there was no evidence the question of license or no license was submitted to the people at the preceding charter election, without which a recovery could not be had. And the onus of proving defendant-had no license was on the plaintiffs.

It was not incumbent upon the plaintiffs to prove that the question of license or no license had been submitted to the people at their last charter election, or that defendant had no license. Before any person is authorized to sell liquors under twenty-eight gallons, he must have a license: and provision is made for granting licenses by town, city and village authorities, but these authorities are not empowered to grant licenses, unless a majority of the qualified voters of the city, village or town, as it may be, shall have voted at the next preceding township or charter election therein in fervor of the granting of such licenses.” The penalty attaches to a sale of liquors without a license. If it was proven that the defendant had sold liquors and it appeared that he had a license, then the question would arise as to the vote of the town or village. But in no case car? an individual sell by retail without a license, and we think the burthen of proving the defendant had no license was not thrown upon the plaintiffs. They had only to prove a sale of liquor, and the defendant was bound to protect himself by showing that he had a license. It is true, the complaint involves the charge that defendant has violated the law in selling without a license; but this is a negative averment, and Mr. Greenleaf, in his Treatise on Evidence, vol. 1, see. 79, states the rule to be, that “ when the subject matter of a negative averment Hob peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that partyand he adds, “ such is the case in civil or criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any persons, exce2)t those who are duly licensed therefor: as for selling liquors, exercising a trade or profession, and the like. Here the party, if licensed, can immediately show it, without the least inconvenience: whereas, if proof of the negative were required, the inconvenience would be very great.” See English and American authorities cited.

He states the same principle in his second volume, see. 283, But if the charge was a criminal neglect of duty, whether official or other-' wise, or fraud, &c., the party making the allegation must prove it, 1 Greenl. Ev., sec. 80. The rule stated by Greenleaf and supported by numerous authorities in the English books, is adopted in New York. The case of Potter v. Deyo, 19 Wendell 361, is in point. In the case of The Commonwealth v. Thurlow, 24 Pickering 374, the court adopted a contrary rule, after arguing the question without citing any authorities. They say they do not intend to decide the general question, upon whom the burden of proof lies in this class of cases. The chief justice says, cases may be affected by special circumstances; and he adds: “In the present case, we think the prosecutor is bound to produce prima facie evidence that the defendant was not licensed.” We will add, the English rule was adopted in the courts of this state many years since.

7. That the whole of chapter 41 is unconstitutional fqqd void, because it is not completo and positive in itself, but depends upon other bodies than the legislature to give it effect; and that there is no law in fame imposing a penalty for selling liquor without a license.

We are unable to perceive how these questions apise, or pan be decided on this record, and for the purpose of a deqsipn pf tlrjs capp they can have no bearing. For if it be decided that the proviso tq the lSfli section is unconstitutional, and therefore void, as well as the provision providing for the disposition of the penalty wheq collected, still thp balance pf the law may be valid, and if sq, it contain^ aq express prqhibition against selling without a license, and a Remedy fpy ||s viplatio.n. It furnishes no sound objectipn to. tíre validity of the law, that it prohibits a sa|e of spirits without a liceqs.e, and that no license could be obtained after a vote of no license, for this would assume that it was a ;natter of common righf to sel] iq quantities ]pss than twpntyreight gallons.

By the case as presented, it dpes nof appear bpt that the village may have voted to grant licenses, and the defendant had failed to obtain one. It never has been the law of this state that every man might retail spirituous liquors without a license. The defendant seems to admit that the power to judge as to who were proper persons to re^ ceive a license, should be vested by law in some body of men, that this. branch of business may be under proper regulations, with a view to the peace and good order of society. Then, suppose the case of an individual who for good reasons, such as intern jierate habits or any other sufficient cause, was refused a license by the proper board; and the further fact that the board had full power to grant a licence in a proper case; could he protect himself under the law ? He surely could not. From the record we are unable to say that this may not be the position of the defendant.

But without proceeding further with this argument, we repeat our conviction, that a case is not presented which malms it necessary or jiroper for us to decide the constitutional question urged by defendant’s counsel; for if the proviso in the 18th section is void (as to which we do not decide) we have no doubt the other portions of the law which bear on the defendant in this case are valid and in full force, and he has shown no good reason why he should be exempt from the penalties consequent upon its violation.

We fire therefore of opinion that the judgment of the county court should be affirmed.

Certified accordingly.


text:
    Herring v. Hock and Hock.
    Tho verdict of a jury in the county court is not conclusive as to the facts of tho pasp, on certiorari to the circuit court.
    Tho judgment of a county court is to be reviewed on its merits. The verdict of a jury in that court should not be disturbed for slight causes; but where it ¡3 manifestly unsupported by evidence, tho judgment should bo reversed.
    On reversing tho judgment of a county court, the circuit court may, in its discretion, award a new trial under tho act. Sess. L. 1849, p. 290.
    Error to Hillsdale Circuit Court.

      IIowcll, for plaintiff in error.

      fUnman, for defendants in error.
   By the court,

Mundy, J.

The plaintiff brought an action of trespass, before, a justice of tbe peace of Hillsdale county, against tbe defendants, for taking- and carrying away a quantity of lumber. Judgment' was rendered by tbe justice for tbe plaintiff. From this judgment the defendants appealed to the county court of Hillsdale county.

Upon the trial of the cause in that court, the jury gave a verdict for the plaintiff for $18, for which sum, with costs, judgment was rendered. From the county court the cause was removed by certiorari into the circuit court for Hillsdale county, where the judgment of the county court was reversed, and it is now here upon, writ of error, to be disposed of by this court.

It is assigned for error, that the circuit court erred in reversing the judgment of the county court rendered upon the verdict of the jury: that the verdict of the jury was conclusive upon the facts submitted to them: and, further, that such verdict, and the judgment thereon, were in accordance with the law and the facts of the case.

It will not be denied that it was the appropriate duty of the jury to pass upon the testimony, and, having ascertained the facts, to find a verdict accordingly, and that such verdict, and the judgment thereon, should not for slight causes he disturbed by the appellate court; but there can be no doubt of tbe power of the circuit court to review in a civil case a judgment of the county court upon its merits, and, when the verdict upon which it was rendered is manifestly unsupported by the evidence, to reverse such judgment. R. S. 387, sec. 54.

It is proper to remark, that the judgment of the circuit court was rendered before the act of 1849 took effect, which authorized the circuit court, upon reversal of a judgment, to remand the cause to the county court for a new trial. If this act had been in force when the judgment of the circuit court was rendered, that court might, in its discretion, have awarded a new trial. . As it was, all that the circuit court could do, if satisfied that the verdict was wrong, was to reverse the judgment, leaving it to the plaintiff to bring a new action, if he should think proper so to do.

We are satisfied, from a review of the testimony, with the judgment of the circuit court.

The defendants held the note of the plaintiff for fifty dollars, payable to H. Myers, or bearer, in lumber, at his steam saw mill in Allen, with-ill one year from its date, upon ten days’ notice, Tlio note was dated January 5, 1848. On the 29tli or 30tli of December, 1848, one of the defendants gave notice to the plaintiff, who said to him, that if he would come in about ten days the lumber would be ready for him. By the testimony of H. Montgomery, he, at the request of the plaintiff, about the last of December, 1848, or the 1st of Januaay, 1849, notified the defendants that the lumber was readj for them; that the price of the first quality was $8, a whole stock $7, and poorer |6; and showed •them a pile of lumber that had been sawed for them.

On the 10th of January, one Gregory, who was in the employment •of the plaintiff delivered to Henry Hook one thousand feet, which was taken away, and of this, Gregory the same day informed the plaintiff: and in the afternoon of the same day, the plaintiff measured and delivered to the defendants sixteen hundred feet more.

After this last quantity had been loaded on the defendant’s sleighs) and driven some ten rods, the plaintiff asked to have the amount endorsed on the note. Henry Hock said they had not the note .with them. The plaintiff then asked for a receipt to apply on the note, and told the defendants that they could not have the lumber unless it was endorsed on the note, receipted or paid for; and the defendants drove off with the lumber. There was some conversation about the price of the lumber. The plaintiff said he would sell no more good lumber for less than $8. The defendants said they could get good lumber at Jonesville or Hillsdale for $6 or $6 50. The plaintiff said the price was $8, at which price they might take it or leave it.

These facts clearly show a transfer of property in the lumber. There was not only a sale and delivery, but payment also. It was undoubtedly the understanding of the parties, at the time of the delivery of the lumber; — and the measurement by the plaintiff and the loading- by the defendants upon their sleighs, constituted an actual delivery; — that it was delivered in part payment of the note.

In fair dealing, the defendants should have given the receipt asked for; but after the delivery of the lumber in part payment of plaintiff’s note held by the defendants, the property in the lumber was changed, and the defendants were not wrong doers in keeping possession of it. The receipt would have been evidence, and nothing more, of the delivery of the lumber in part payment of the note; and of this fact, as appears from the testimony upon the trial, the plaintiff had already abundant evidence within his reach.

The judgment-of the circuit court must be affirmed, with costs.

Judgment affirmed.


author: Whipple, C. J.

text:
    Perkins v. Superintendents of the Poor of Lapeer County.
    A certiorari lies to the county court to review a judgment of that- court on proceedings instituted under ch. 42, R. S., as the cause cannot he carried to tho circuit court of the county for review, under ch. 92, R. S.
    Motion to dismiss certiorari.

      Stevens, for the motion.
    Goodrich, contra.
   By the court,

Whipple, C. J.

Proceedings in this cause were instituted against the plaintiff in error, under the provisions of ch. 42, R. S. The respondent having recognized to appear in the circuit .court for the county of Lapeer, the cause was subsequently transferred to the county court, where a trial was had and a judgment rendered, to reverse which, the writ of certiorari in this cause is prosecuted. A motion is now made to dismiss, upon the sole ground that this court has no jurisdiction of the cause. It is urged by the defendants in error, that the judgment below must be first reviewed by the circuit court by certiorari, under the general provisions of the Revised Statutes which authorize that tribunal to review all judgments of the county court. Tho ground assumed by the defendants must be esteemed conclusive, unless it is clear that the judgment authorized ¿o be rendered by the provisions of chap. 42 is such an- one as to make it impracticable for the respondent to avail himself of the remedy which chap. 92, R. S., furnishes to parties aggrieved by the judgment of. the county court.

It is to be noticed, that the proceedings against the respondent were special, and the form of the judgment upon conviction peculiar. The respondent, upon conviction, is to be adjudged the father of the child, an d to stand chargeable with its maintenance.

It is difficult to conceive how the respondent could have availed himself of the general provisions which jn-escribe the mode of reviewing a judgment of the county court by the circuit. Section 48 of chapter 92, R. S. directs a bond to be given in double the amount of debt, damages and costs that may be awarded against the appellant. It is quits clear, then, that the judgment, to be reviewed by certiorari, must be one for debt or damages. The proceeding under chapter 42 contemplates, as I have shown, no such judgment, and- the respondent could not, therefore, avail himself of the provisions of chapter 92 to have the judgment of the county court reviewed. The remedy by certiorari authorized by that chapter, applies solely to judgments rendered by that tribunal.in the ordinary exercise of its original and appellate jurisdiction, and not to judgments rendered by virtue of the special proceedings authorized by chapter 42.

There being, then, no other mode of reviewing the judgment before us, the respondent had the right to avail himself of the general superintending power which this court possesses over all inferior jurisdictions, and to have the proceedings of the court below reviewed by this court in the mode authorized by the common law.

Motion denied.


author: Manning J.:

text:
    Janet Berry v. John Lowe, Jr.
    Where error is brought in the Supremo Court upon a judgment of the Circuit, in a case brought there by certiorari to a justice of the peace, an assignment of errors “ that the Circuit Judge erred, in holding that the justice’s judgment was erroneous in the several causes of error assigned in the affidavit for certiorari,” is a sufficient special assignment of errors under the 'rule.
    On a writ of error, the Supreme Court corrects only such errors as have been committed adversely to the interest of the party suing out the writ.
    On certiorari to a justice’s court, if the error alleged is a total want of evidence to prove some fact necessary to sustain the judgment, the Circuit Court should look into the testimony to see whether there was such evidence or not. If there was, it should not weigh it, or inquire into its sufficiency, but affirm the judgment. If the return shows no such evidence, and it appears that all the testimony before the justice has been returned, the judgment should be reversed, on the ground that the justice erred, in law, in rendering the judgment he did without such evidence.
    Upon a certiorari to a justice of the''peace, the Circuit Court has no power to render judgment in favor of the plaintiff in error for the costs of the suit before the justice.

      Heard November 1st and 5th 1861.

      Decided April 22d.
    Error to Wayne Circuit.
    Berry brought replevin before a justice to recover of Lowe a trunk, certain articles of wearing apparel, and other goods. On trial, the justice found for the plaintiff as to a part of the articles replevied, and gave judgment in his favor for six cents damages and five dollars costs; and he awarded a return of the remaining articles to Lowe. Lowe sued out of the Circuit Court a writ of certiorari,, assigning in his affidavit therefor the following among other erx-ors:
    “ That the said Justice erred in giving a general judgment of costs against this defendant, upon a finding of a part of the property in said plaintiff, and a part in this defendant.
    “That the judgment rendered by the said justice is against the evidence in the case, there being no proof that said plaintiff had either^ right of property or of possession to any of the articles awarded to the said plaintiff by said judgment; but, on the contrary, the proof being that the entire property of said trunk and clothing was in John Lowe, Senior.”
    The Circuit Court reversed the judgment of the Justice as to a portion of the articles adjudged to Berry, and rendered judgment in. favor of Lowe for six cents damages and the costs of suit before the justice, and also for costs in the Circuit Court. The remainder of the justice’s judgment was affirmed. Berry brought error to this Court, assigning for error “that the Circuit Judge erred in holding that the justice’s judgment was erroneous in the several causes of error assigned in the affidavit for certiorari,” and also that the Court erred in rendering the judgment it did for costs.

      J. E. Bigelow, for plaintiff in error,
    to the point that wh'ere the evidence is conflicting the Circuit Court can not reverse the judgment of the Justice, referred to, 3 Mich. 612; 4 Mich. 198; 15 Wend. 491; 18 Wend. 141; 8 Mich. 427.

      G. A. Wilcox and E. Hall, for defendant in error,
    objected that the assignment of errors was not special as required by the rules. They also argued that the Circuit Court might review the case on the evidence: — 1 Mich. 257; Ib. 502 ; 5 Mich. 532; 7 Mich. 79; 8 Mich. 427; but that the Supreme Court could not: — 1 Mich. 257 ; 2 Mich. 404; 5 Mich. 532 ; 7 Mich. 79. And they distinguished rthese last cases from that of Cicotte v. Morse, 8 Mich. 427, where the decision turned not upon a general review of rthe evidence, but upon a mistaken view of the Court as to '-what was, in law, a good presentment, demand and notice of non-payment of a note.
   Manning J.:

The assignment of errors is sufficient. It is “that the Circuit Judge erred in holding' that the justice’s judgment was erroneous in the several causes of error assigned in the affidavit for certiorari.” The statute requires the party applying for a certiorari to “make or cause to be made an affidavit, setting forth the substance of the testimony and proceedings before the justice, and the grounds upon which <m allegation of error is founded — Comp. L. § 3869. And the case is to be brought to argument on the justice’s return, “without any assignment or joinder in error, unless there be an allegation of error in fact.” Comp. L. § 3880. The assignment in referring to the errors stated in the affidavit makes such errors a part of the assignment: — Niles v. Rhodes, 1 Mich. 374.

The cause was argued on all the errors stated -in the affidavit. This is the correct practice when the justice’s judgment is affirmed or reversed in toto, for the whole case is then open for review. But it is not the practice when the judgment is affirmed or reversed in part, unless both parties have brought error; as it is the province of a court of review, on a writ of error, to correct such errors only Ms have been committed adversely to the interest of the party suing out the writ. ,

In the present case, the Justice’s judgment was reversed in part and affirmed in part. The plaintiff in error was •plaintiff before the Justice, and the defendant in error was plaintiff in the Circuit Court. As defendant' in error, he stands in this, Court in the position his adversary stood in the Circuit; and as the latter could not have been heard in, that Court to complain of the justice’s judgment because it did not award to him all the property replevied by him, so neither can the -defendant in -error be heard in this Court to complain of the judgment of the Circuit Court for not. reversing the whole of the justice’s judgment, instead of a part only.

The next question is, What is the power of the Circuit Court on a certiorari to a justice’s court ? Is it confined, to correcting errors of law only, or may it also correct errors in the finding of facts by the justice ? The statute-to which we must look for the power of the Court, is not as clear as it might be, and the decisions under it. can not all be reconciled with each other. In Gains v. Betts, 2 Doug. Mich. 98, it was held that a judgment should not be reversed on the ground that the verdict of the jury was against evidence, unless it appeared that there was a total want of testimony to sustain the finding. While in Herring v. Hock, 1 Mich. 501, it was held that although the verdict of a jury should not be disturbed for slight causes, yet it was not conclusive as to the facts of the case. This decision was on a certiorari to the County Court, under §54, p. 397 of the fteAÜsed Statutes, of 1846, which section is in all respects bearing upon the present question like § 132 in the Justice’s Act of 1841, under which Gains v. Betts was decided: S. L. 1841, p. 114. These two cases therefore can not well be reconciled with each other.

If Herring v. Hock had been decided under § IQ of the Act to Consolidate the Laws in relation to County Courts, and for other purposes, approved April 2, 1840 (S. B. 1849, p. 290), which was in force when the case was finally disposed of, it would be altogether different, as this last section confers greater power on the Court than the section -in the Revised Statutes of 1846. It not only authorizes the Circuit Court to “ affirm or reverse the judgment of the County Court, in whole or in part,” but also to “ give such other judgment as justice shall require,” and in its discretion to remand the cause to the County Court for a new trial. The difference between the two. sections is referred to in the decision of the Court, so far •as it respects the power of the Circuit Court to order a new trial; but no farther. Whether the Court supposed the two sections were in other respects the same, and based their decision on the act of 1849, does not appear, •Such may have been the case. Perhaps it may fairly be inferred from the omission of the Court to notice any other difference between the sections than the one mentioned.

On this hypothesis, but no other, the cases may be reconciled. For it will hardly be contended, we think, that the additional power conferred on the Court to “give such judgment as justice shall require,’’ would not authorize the Circuit Court to' review the whole case — the facts, as well as the law — as on an appeal in Chancery.

In Elliott v. Whitmore, 5 Mich. 538, the Court say, “The Circuit Court, in virtue of its statutory jurisdiction, has power to inquire into the evidence exhibited in the justice’s court, and to give judgment as the right of the matter may appear.” This dictum — for it can not «be regarded as anything more, as the case was not decided on that point, nor its decision necessary to the decision of the case before the Court — was probably made in view of the decision in Herring v. Hock, as that case is mentioned in the opinion of the Court.

These two cases, we believe, are the only cases in which the broad doctrine is laid down that the Circuit Court may review the evidence, and correct the errors of the justice in the finding of fact.

It is not a little remarkable while the power of the Circuit Court is purely statutory — the writ being a statutory and not a common law certiorari — we find nothing said in any of the decisions in regard to the statute itself.

The section in the Justice’s Act of 1841, under which Gains v. Betts was decided, is in all respects essentially the same as the section in the act relative to justices of the peace now in' force, which is as follows:

“The Circuit Court shall proceed to give judgment is*, the cause as the right of the matter may appear, without regarding technical omissions, imperfections or defects in the. proceedings before the justice, which did not affect the merits; and may affirm or reverse the judgment, in-whole Or in-part, and execution shall issue thereon as upon other-judgments rendered in the Circuit or District Court.’Comp. L. §3881.

If the section stopped with the words “which did not affect the merits”; or like §76 of the act of 1849 relative, to County Courts, contained the words “ or give such other judgment as justice shall require,” after the words “ affirm or reverse the judgment, in whole or in part,” we think there would be no doubt of the intention of the Legislature to give the Circuit Court power to revise the whole case, and to make a final disposition of it on its merits. But we must construe the .section as we find it, and in doing so, it is impossible to give it so broad a meaning. If it is suscept-. ibl® of such a construction as it stands, why did the Legislature in the act of 1849 relative to County Courts, insert the words “or give such other judgment- as justice shall require.”

The words at the commencement of the section — “shall proceed to give judgment in the case as the right of the matter may appear ” — must be construed in connection with the words which immediately follow, viz: “without regarding technical omissions, imperfections or defects in the proceedings before the justice, which did not affect the merits.” Taken together they are to be understood to, mean that the judgment should not be reversed for any of the causes stated; that is, for any technical omission, imperfection or defect that did not go to the merits: that the judgment should not be reversed for errors that-did not and could not have worked any injury to the party complaining. Had the Legislature intended to go further than-this, they would not have restricted the judgment of the-Circuit Court to a reversal or áffirmance of the judgment, but have authorized it to give such judgment as the justice should have given.

If the alleged error is a total want of evidence to prove some fact necessary to sustain the judgment, the Court will look into the testimony to see whether there was such evidence or not. If there was, it will not weigh it, or inquire into its sufficiency, but affirm the judgment. If the return shows no such evidence, and it appears all the testimony before the justice has been returned, the judgment will be reversed on the ground that the Justice erred, in law, in rendering the judgment he did without such evidence.

Such we understand to be the true construction of the statute, and the purport of the decision in Gains v. Betts.

The case before us is replevin in a justice’s court for a trunk, and other articles, consisting in part of wearing apparel. The justice gave judgment for the plaintiff in error for a part of the articles replevied, with six cents damages and five dollars costs, and awarded a return of a part to the defendant in error. Thereupon the latter carried the case to the Circuit Court by certiorari. The Circuit Court reversed the justice’s judgment as to some of the articles that had been adjudged by the justice to belong to the plaintiff in error, and gave judgment for them to the defendant in error, with six cents damages and his costs by him sustained on the trial before the justice, and his costs in the Circuit Court. In all other respects the justice’s judgment was affirmed. The return to the certiorari shows there was evidence'before the justice tending to prove each one of these articles was the property of the plaintiff in error. The Circuit Court therefore erred in reversing so much of the justice’s judgment as related to them, if our exposition of the powers of that Court under the statute is correct. It also erred in giving the defendant in error judgment for costs before the justice. For such judgment is not an affirmance or reversal of the justice’s judgment or any part thereof, but a new and independent judgment that the Circuit Court had no power to give.

So much of the judgment of the Circuit Court as gives the defendant in error costs, and as reverses in part the justice’s judgment, is reversed. And the justice’s judgment, and so much of the judgment of the Circuit Court as affirms said judgment, is affirmed, with costs in both courts.

Christiancy and Campbell J. concurred.

Martin Ch. J. concurred in the result.


author: Martin Ch. J.:

text:
    Simon Z. Kinyon v. Joseph. A. Fowler.
    Technicality and form are neither required nor expected in tlie proceedings of justices’ courts.
    Where parties appeared before a justice and confessed judgment in favor of another, on a demand arising upon contract, for a sum specified, and authorized judgment to be entered thereupon, held a substantial acknowledgment of their indebtedness, and sufficient under the statute.
    Where two persons thus confessed judgment, and the judgment entry recited that the 1‘ parties appeared,” it ivas held that this phrase purports that the creditor, as well as the debtors, was present and participated in the proceedings.

      Heard April 12th

      Decided April 22d.
    Error to Shiawassee Circuit.
    The action was by Kinyon against Fowler, in replevin. Defendant justified as a constable, under an execution issued by Alexander McArthur, a justice of the peace of said county, issued on a judgment rendered in favor of S. Ostrander against the plaintiff and one James Cummin. To prove the judgment the docket of said justice was offered in evidence, containing the following entries:
    “In Justice Court. S. Ostrander v. S. Z. Kinyon and James Cummin. Before Alexander McArthur, Esq., a Justice of the Peace in and for the County of Shiawassee.

      To A. McArthur, Esq., one of the Justices of the Peace of the township of Caledonia, in the County of Shiawassee. We hereby confess judgment on a demand arising upon contract, in favor of S„ Ostrander, for the sum of one hundred and [six 74-100 dollars da&ages, and costs of suit, and authorize you to enter judgment against us accordingly. S. Z. Kinyon,
    Dated June 6, 1857. James Cummin.
    S. Ostrander v. S. Z. Kinyon and James CumminParties appeared, and judgment entered against the defendant, on a demand arising upon contract, on their confession made in writing, and signed by them in my presence, according to the statute, for
    Damages, $106 74
    Costs, 75
    June 6, Í857. $107 49
    A. McArthur, Justice of the Peace.”
    The plaintiff objected to this evidence:
    1st. That the defendants therein named do not confess that they were indebted to the plaintiff upon contract, as required by the statute:
    2d. That it does not appear from the rendition of the judgment that the same was -rendered by consent of the plaintiff or creditor, as required by the .statute.
    Which objections were overruled, the entries given in evidence, and the defendant had .judgment. Kinyon brought error. . '

      Me Curdy <& Paynale, and S. T. Parsons, for plaintiff in error.

      A. & JS. Gould, for defendant in' error.
   Martin Ch. J.:

Technicality and form are neither required or expected in the proceedings of justices’ courts. [If the action and judgment of the court can be clearly ascertained from inspection of the files, and the docket entries required by-statute to be made, no technicalities, imperfections or omissions in the entry of the proceedings and judgment will avail to reverse or avoid the judgment. All that is requisite is that the language used- shall be such as will inform a person of ordinary intelligence and mental capacity of the action of the court. To this extent the language must be certain; to require any thing further would prescribe a rule for the guidance of Justices which would render the correct performance of their duties, in very many instances, impossible, by reason of their want of legal knowledge, and which would almost entirely deprive parties compelled to litigate before them of their legal rights.

In the present case there was, therefore, no error in the ruling of the Circuit Judge admitting the justice’s docket to prove the confession of judgment in the case of Ostrander v. Kinyon and Cummin.

By § 3655 of Compiled Laws, a justice of the peace is authorized to enter judgment upon confession, with the consent of the creditor, if the debtor shall appear before such justice without iDrocess, and confess in writing, signed by him in the presence of such justice, that he is indebted to such creditor upon contract in a certain sum. All this was done in the case of the judgment offered in evidence in this cause. It is true that Ilinyon and Cummin did not, in their written confession before the justice, use the words of the statute, and confess that they “ were indebted; ” but they did substantially the same thing, when they confessed a “judgment” on a demand arising upon contract, in favor of their creditor. Their intention could not be misunderstood.

Now the phrase “confession of judgment” has a popular, as well as a technical signification. As popularly understood, it signifies an acknowledgment of indebtedness, upon ■which it is contemplated that a judgment may and will be rendered. So it was understood by Kinyon and Cum-min, and by their creditor and the justice; and when the former in writing declared that they “confessed judgment” in favor of Ostrander upon “ a demand arising upon contract,” they confessed that they were indebted to him upon such a demand. They used the language most usually • employed in these instruments.

Nor is there any question but that Ostrander was present when the confession was made and the judgment rendered, and consented thereto. The entry in the justice’s docket is that “the parties appeared.” This imports that the creditor was present as well as the debtors; and that he participated in the proceeding. The word parties imports-both plaintiff and defendant; and this is too well understood to permit the presumption that the justice, in his docket-entry, intended only to refer to the individuals of the party defendant. The presumption in this case is in accordance with both the legal and' popular understanding» If the creditor was present and participating, we cannot presume that he did not assent to the action of the justice in rendering judgment upon the confession; and we certainly know that he has not since repudiated it, for he sued out the execution upon which the property replevied was seized.

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

The other Justices concurred.