author: Campbell J.

text:
    Detroit Daily Post Company v. Donald McArthur, and Daily Free Press Company v. Donald McArthur.

      Damages in discretion of jury: Duty of court. While those damages which depend on the sound discretion of a jury are not susceptible of any accurate regulation by the court, yet the jury should be prevented by proper caution from acting upon improper theories as to the legitimate elements to be considered in estimating them.

      Exemplary damages. The term “ exemplary or vindictive damages” should not be used without such explanation as may prevent a jury from being misled by it. Por voluntary wrongs additional damages are allowed for injured feeling, which must naturally be aggravated or mitigated by the degree of malice actually existing, but nothing beyond the individual grievance should be taken into the account in estimating them.
    If different agencies have concurred in producing a private grievance, the liability of each person for such portion of the damages as is allowed for injured feeling, should be measured by the extent of his own misconduct.

      Publishers of Newspapers; Libel; Damages. While the mischief which may be caused by an abuse of the press is such as to render its conductors responsible for great care in guarding against the danger, yet the necessities of civilization require that no unreasonable or vexatious restrictions shall be imposed upon them.
    The character and doings of private persons, not developed in legal proceedings or voluntarily made public, can not be properly discussed in print; and for all libels every publisher, whether an individual or a corporation, is responsible to the extent of any special damages, and any estimated damage to credit and reputation. But he is only liable for such damages to injured feeling as must inevitably be inferred from the libel itself, published in a paper of such character and circulation as his, if he has used such precautions as he reasonably could, to prevent such an abuse of his columns.

      Publishers of Newspapers, duty of: Express malice of employees: Damages. The employment of competent editors, the supervision by proper persons of all that is to be inserted, and the establishment and habitual enforcement of such rules as would probably exclude improper items, should exempt a publisher from any aggravation of damages on account of the express malice of his subordinates, for any libel published without his privity or approval.
    But if it should appear that he was wanting in reasonable care to prevent abuses, he would be liable to increased damages for his own misconduct, which might fairly be regarded as identifying him with facts which he took no pains to suppress.

      Heard April 9th and 10th.

      Decided April 14th.
    Error to "Wayne Circuit.
    Tkis was an action to recover damages for tke publication, by defendants, in their newspaper in Detroit, of an alleged libel, concerning plaintiff.

      The plea was the general issue, with notice of justification.
    The defendants requested the court to charge the jury that punitive or exemplary damages could not be received against them; they being a corporation.
    The court refused so to do, but did charge the jury that if the defendants published the libel maliciously, or recklessly, that they were at liberty to give exemplary damages, with reference to all the circumstances of the case.
    The jury gave a verdict for $550, against defendants, in both cases.

      Wm. P. Wells, G. V. JV. Lothrop, and Wm. Gray, for plaintiffs in etrror.
    1. Vindictive, or exemplary damages are given, when permitted at all, as punishment for malicious intent. There must be, however, actual malice, as distinguished from mere legal malice.— Sedgwick on Damages, 38; Id. (appendix) 666; 13 Howard, 371; 3 Johns. 56; 4 Duer, 247.
    The inquiry in this case, then, is, can exemplary damages be given for an injury inflicted by the malicious act of an agent of the corporation, when that which is malicious in the act has not been directly authorized, participated in, ratified, or approved by the corporation itself?
    2. If the rule of exemplary damages rests upon the idea of punishment, that punishment should be inflicted only upon the person guilty of that which is deserving of punishment. Persons who inflict injuries, or commit crimes, are subject to the appropriate penalties, but these penalties are to be borne by the actors themselves.
    The question whether the punishment which is involved in exemplary damages should fall upon any other than the .persons guilty of punishment, can only arise, in civil actions, in cases where there has been some relation of principal and agent. And in this class of cases the authorities do not sustain the application of the principle.— 2 R. I. 88; 10 Wis. 388; 11 La. Ann. 192; 3 Wheat. 546; 20 III. 251; 31 Miss. 156; 36 JV. H. 1; 4 Green, (Iowa) 555.
    3. It is necessary to consider the cases at bar in the light of the particular rules which govern the liabilities of corporations, and the damages which may be recovered against them; and there are some considerations which are peculiar to the cases át bar, as being actions against corporations publishing newspapers.
    The rules which formerly governed the liability of-principals for the acts of agents, have received, unquestionably, some modifications from the growth of modern corporations. Thus, the rule that an individual principal could not be held liable for the willful wrong of an agent, has yielded to the policy which demands that carrier corporations should be held to the strictest responsibility.
    But all the rules which govern the mere liability of corporate principals for the acts of their agents, are left untouched by the argument which we present. We might even concede that the protection of society and individuals requires that corporations should, in all cases, be held liable for the torts of their agents, and the position that the corporations should not be visited with exemplary damages, is left unassailed.
    . Our objection is to extending the rule of exemplary damages to corporation principals for the malicious acts of their agents, and ■ especially to the extension of the rule to cases where a publishing corporation is sued for a libel written by an agent and published under the circumstances which appear in the cases at bar.
    Our position is sustained by the case of Philadelphia, W. and B. R. R. Co. v. Quigley, 21 How. 202.
    4. If these positions are correct, the charge of the judge of the Circuit Court was incorrect upon the question of malice.

      Ward & Palmer, for defendant in error.
    1. The law is well settled that if the words published in the libel are in themselves actiohable, malicious intent in publishing them is an inference of law, and, therefore, needs no proof.— 2 Greenl. Ev. 418; 3 Phil, on Ev. 559. By presumption of law, then, the defendants below maliciously published the article in question, and it is for them affirmatively to show that no such malice existed.
    Malice in a civil action is well defined in 43 Me. 287.
    In attempting to overcome this presumption of malice, they did not attempt to justify the publication on account of the truthfulness of the article, but by their pleadings admitted the publication to be false. They simply insisted that the rule of implied malice did not apply in this case, for they, being a corporation, were incapable of malice, and hence, nothing but nominal damages could be recovered against them.
    It can not be questioned that, if any corporation is liable in an action of tort for punitive or exemplary damages, a corporation, organized for the publication and circulation of a public newspaper, would be thus liable 'for damages they may do to private persons, by publishing and circulating false and malicious libels of and concerning them.
    Corporations are civilly responsible in their corporate capacity for all torts which work injury to others, whether acts of omission or commission, for negligence merely, or for direct violence, and that, too, in punitive or vindictive damages.— 22 Gonn. 531, and cases therein cited; 10 Id. 384; 29 Id. 496; 10 N. H. 130; Sedgw. on Dam. 477, and note', 21 How. 202; 10 G. B. (H. S.) 28; 3 Met. (Ky.) 311; 36 Miss. (7 Geo.) 660, and cases therein cited; 36 N. II. 9; 31 Miss. (2 Geo.) 196; 9 Minn. 135.
    Thus, it will be seen by the authorities that the court did not err in'refusing to charge the jury “that punitive or exemplary damages could not be recovered against the defendants, they being a corporation.”
    And since a corporation can not be prosecuted criminally, the rule that gives damages to punish the offender, may, with great propriety, be applied, because it is the only mode iu which, by public example, the various rights in community, to personal security, and private property, can, under the sanction of the law, be protected from injury and outrage.
   Campbell J.

These cases come up on the same questions, the action below in each of them being for libel, and the charge in each having been identical in all its legal bearings.

The errors alleged refer to the rule of damages, which it is claimed was so laid down as to subject plaintiffs in error to be charged with exemplary damages; and this, they insist, was not authorized as the case stood before the court and jury. Their corporate character is relied on, among other things, as modifying and limiting their responsibility. It is not urged that a printing and publishing company, engaged in the issuing of a newspaper, and established for that purpose, is not responsible to all persons injured by the publication of a libel. But it is claimed that those damages which are enhanced by the misconduct of individual agents of the company, stand on a different footing from those which might be recovered against the individual chiefly active in originating the slanderous article; and that, in submitting the case to the jury, sufficient care was not taken to discriminate.

It is not easy to lay down very definite rules for discriminating damages in those cases where they depend upon the sound discretion of a jury. And yet it is necessary to prevent the jury, as far as may be, from acting upon improper theories of what should be regarded in estimating the elements which go to make up the injury to be redressed. When their attention has been carefully directed, their conclusions must be accepted, unless so perverse or mistaken as to be entirely inconsistent with justice.

The law favors the freedom of the press, so long as it does not interfere with private reputation, or other rights entitled to protection. And, inasmuch as the newspaper press is one of the necessities of civilization, the conditions under which it is required to be conducted should not be unreasonable or vexatious. But the reading public are not entitled to discussions in print upon the character or doings of private persons, except as developed in legal tribunals, or voluntarily subjected to public scrutiny. And, since an injurious statement inserted in a popular journal does more harm to the person slandered than can possibly be wrought by any other species of publicity, the care required of such journals must.be such as to-reduce the risk of having such libels creep into their columns, to the lowest degree which reasonable foresight can assure.

The danger, and the precautions necessary to prevent it, are directly connected with the business itself; and all who voluntarily assume the responsibility must exercise it under similar conditions. It is the right of the citizen to be secure against all unlawful assaults; and no distinction can be reasonable which allows the care required in the conduct of any avocation, attended by risks to third persons, to be varied by the private or corporate character of its conductors. Any injury which is avoidable by the perpetrator- — ■ or, in other words, any injury which is not in some degree accidental — entitles the injured party to redress. And any damage to person or reputation is recoverable, to such extent as in the opinion of a jury, not led away by passion or prejudice, the nature of the injury will warrant.

But in all cases where an act is done which from its very nature must be expected to result in mischief, or where there is negligence so great as to indicate a reckless disregard of the rights or safety of others, a new element of damages is allowed to be considered. A serious wrong which is the natural and direct result of voluntary action, necessarily indicates a voluntary wrong doer, for the law rigidly holds all persons to the presumption that they intend such results as are to be expected from their conduct, whenever those results arrive. Where the wrong done consists in a libelwhich can never be accidental — the publishing is therefore always imputed to a wrong motive, and that motive is called malicious. And, in the absence of any testimony showing the origin and circumstances of the publication, it stands before the jury as a voluntary wrong, until palliated or excused, while the actual motive, whether intensifying or mitigating the moral guilt, may be shown to qualify it.

If evil motives arising out of ill will or revenge are shown, the moral guilt of the perpetrator will be very much enhanced. If such motives are negatived, the evil quality of the act will in hire manner be reduced, and it will appear to all persons much less reprehensible.

It is in connection with the various degrees of blameworthiness chargeable on wrong doers, that the discussions have arisen upon the subject of vindictive or exemplary damages, which, inasmuch as they rest upon actual fault, are by some authorities said to be designed to punish the wrong intent, while, according to others the damages usually so called are only meant to recompense the sense of injury which is in human experience always aggravated or lessened in proportion to the degree of perversity exhibited by the offender. While the term exemplary or vindictive damages has become so fixed in the law that it may be difficult to get rid of it, yet it should not be allowed to be used so as to mislead; and we think the only proper application of damages beyond those to person, property or reputation, is to make reparation for the injury to the feelings of the person injured. This is often the greatest wrong which can be inflicted, and injured pride or affection may, under some circumstances justify very heavy damages. In all libel cases this injury to the feelings is a proper element to be considered, in addition to the damage to reputation and other attendant grievances. And on the same principle anything having a tendency to reduce the extent of the voluntary wrong is to be considered in mitigation, by tbe jury. The injury to the feelings is only allowed to be considered in those torts which consist of some voluntary act, or very gross neglect, and practically depends very closely on the degree of fault evinced by all the circumstances. It has been very wisely left to the jury to determine each case upon its own surroundings, because the only safe rule of damages in matters of feeling is to give what to the ordinary apprehension of impartial men would seem proportionate to an injury which must be measured by the instincts of our common humanity. And it will at once be perceived that where different persons or agencies have concurred in producing an injurious result, although all may be responsible for some damages for injured feeling, as well as for the more substantial mischiefs of another sort, yet they may stand in very different positions of moral wrong.

There is no doubt of the duty of every publisher to see at all hazards that no libel appears in his paper. Every publisher is, therefore, liable, not only for the estimated damages to credit and reputation, and such special damages as may appear, but also for such damages on account of injured feeling as must unavoidably be inferred from such a libel, published in a paper of such a position and circulation. But no further damages than these should be given, if he has taken such precautions as he reasonably could to prevent such an abuse of his columns. When it 'appears that the mischief has been done in spite of precautions, he ought to have all the allowance in his favor which such carefulness would justify, in mitigation of that portion of the damages which is awarded on account of injured feelings.

The employment of competent editors, the supervision by proper persons of all that is to be inserted, and the establishment and habitual enforcement of such rules as would probably exclude improper items, would reduce the blameworthiness of a publisher to a minimum, for any libel inserted without his privity or approval, and should confine his liability to such damages as include no redress for wounded feeling, beyond what is inevitable from the nature of the libel. And no amount of express malice in his employees should aggravate damages against him, when he has thus purged himself from active blame.

If, on the other hand, it shoxild appear from the frequent recurrence of similar libels, or from other proof tending to show a want of solicitude for the proper conduct of his paper, that the publisher was reckless of consequences, then he would be liable to increased damages, simply because by his own fault he had deserved them. By such recklessness he encourages fault or carelessness in his agents, and becomes in a manner in complicity with their misconduct.

While, therefore, in the present case, the reporters were guilty of carelessness in receiving hearsay talk of legal charges which could only be lawfully published if in accordance with the documentary _ facts, and while there could be no justification for publishing outside scandal against an individual, from any source whatever, yet the defendants were only responsible, beyond the damages recoverable under any circumstances for such a libel, to the extent of their own conduct, in the care or want of care used in guarding their columns against the insertion of such articles.

We have no means of judging whether the verdict of the jury was based upon any idea of the personal fault of the publishers, and we have no authority to pass upon its propriety in either view of the facts.

But there is room for the ground taken by the plaintiffs in error, that the charge of the court left it in the power of the jury to hold them in all respects identified with the faults of their agents. Upon _this ground we think the charge must be regarded as calculated to mislead the jury, and we must therefore award a new trial.

Cooley Oh. J. and Graves J. concurred.

Christiancy J. did not sit.


source: Caselaw Access Project

author: Graves J.

license: Public Domain

text:
    Frederick L. Seitz v. Peter L. Miles.

      Forcible entry and detainer: Allegation in complaint. The complaint, under the forcible entry and detainer act — Comp. L. %l&15 — alleged that defendant “unlawfully entered, with force, and ejected and expelled complainant, and has ever since continued and still is unlawfully in the possession of said premises, and unlawfully holding the same by force,” etc.
    The statute describes two grounds of proceeding. One for forcible entry, and the other where the entry was a peaceable one, but followed by an unlawful holding by force.
    Reid, That the complaint must be considered as one for forcible entry only — that the averment of forcible holding could not constitute a charge on the last ground mentioned in the statute, since the element of a peaceable entry is not only wanting, but would be excluded by the averment of a forcible entry. Reid further, that language used in the complaint not required in a proceeding on the first ground, may be rejected as surplussage.

      Forcible entnj and detainer: Complaint: "Verification. On the trial the defendant offered in evidence, in justification, proceedings instituted before a Circuit Court Commissioner against complainant to obtain possession of the premises in question for the non-payment of rent. Objection was made on the ground that the complaint upon which said proceedings were founded was verified as being true “to the best of the knowledge, information and belief”'of the affiant. Reid, That the verification was not in compliance with the statute, and the complaint was therefore void.

      Forcible entry and detainer, what constitutes. To constitute a forcible entry within the meaning of the statute, it is not necessary that the actual invasion of the premises should, at the very moment, be attended by the circumstances requisite to give it the character of a forcible entry, or be accompanied by threats, actual force or violence, or any conduct which would constitute a breach of the peace; but if the entry be obtained by stealth or stratagem, or without real violence, and the party entering evinces his purpose in having entered, to have been the forcible expulsion of the party in possession, and it is followed up by actual expulsion by means of personal threats or violence, or superior force, it will amount to a forcible entry.

      Charge of Court. The court was requested to charge that, if rent was due and unpaid upon the lease, it was not unlawful for the defendant to take possession under the provision authorizing forfeiture, if he could do so peaceably. This was refused. The court charged that it was immaterial whether any rent was due when the defendant took possession; but that if, upon such a claim of rent due, or by an agreement between the parties, the plaintiff yielded possession, the defendant was not guilty.
    Reid, That the request being based upon the assumption that there was evidence tending to show that the defendant entered under the provision for re-entry in the lease, and upon an agreement by plaintiff to yield possession, and the case upon this point having been fairly submitted to the jury, they must have found that there was no such agreement, and hence there there was no error.

      Heard April 16th.

      Decided April 21st.

      Error to Wayne Circuit.
    This was a complaint for forcible entry and detainer, brought into the Circuit Court for the County of Wayne, by appeal from the decision of T. K. G-illett, a Circuit Court Commissioner for said county.
    The following is a copy of the complaint:
    “ STATE OE MICHIGAN, County of Wayne.
    Peter L. Miles being duly sworn, makes complaint, and on his oath says, that heretofore, to wit, on the 16th day of November inst., he was in the quiet and peaceable possession of the following described premises, situate in the city of Detroit, in said county, to wit: The lower floor or store numbered 66 Randolph street, of that certain brick building known as the GofB.net Block together with the basement of said store, and that on the day and year last aforesaid, to wit, on the 16th day of November, A. D. 1867, Eredk. Seitz unlawfully entered into the same premises with force and ejected and expelled this complainant therefrom, and has ever since continued and still is unlawfully in the possession of said premises, and unlawfully holding the same by force, contrary to the statute in such case made and provided; and that this complainant is well entitled to the possession thereof, wherefore he prays that he may be restored to the possession of the same.
    P. L. MILES.
    Subscribed, and sworn to, before me, tbis 19tb day of November, A. D. 1867.
    THADDEÜS K. GILLETT,

      Circuit Court Commissioner,

      'Wayne Cmmty, Michigan.

    The defendant pleaded “not guilty.”
    Upon the trial the defendant offered in evidence as a justification, proceedings instituted before a Circuit Court Commissioner for the purpose of obtaining possession of the said premises, and in which proceeding a writ of restitution was issued in favor of James Gof6.net, and possession taken by his agent, Frederick L. Seitz.

      The introduction of said proceedings was objected to on the ground that the verification to the complaint was defective and gave the commissioner no jurisdiction.
    The objection was sustained.
    The following is a copy of the complaint:
    STATE OF MICHIGAN, County of Wayne. \ SS,

      To Thaddeus K. Cttlett, Circuit Court Commissioner, Wayne County, Michigan:

    The complaint of James Goffinet, by bis agent, Frederick L. Seitz, of said County of Wayne, respectfully shows: That P. L. Miles is in possession of the following described lands and tenements, situated in the city of Detroit, in said County of Wayne, and State of Michigan, to wit:
    Store No. 66, easterly side of Randolph street, in the building known as the Goffinet Block.
    That James Goffinet is the owner and landlord of said premises, and said Peter L. Miles is the tenant under ^ him, and that said P. L. Miles holds over said premises after the time for which they were demised or let to Mm.
    That said P. L. Miles has refused and neglected for fourteen days after demand of the possession made in writing, to deliver up possession of the said premises or pay the rent now due.
    That said P. L. Miles therefore holds said premises unlawfully, a,nd against the right of this complainant, and that this complainant is entitled to the possession of the same.
    Wherefore this complainant prays that proceedings, according to the statute in such case made and provided, may be taken against the said P. L. Miles, and that the possession of said premises may be restored to this complainant.
    (Signed) FRED. L. SEITZ.
    STATE OF MICHIGAN,) i-ss. County of Wayne. )
    On this tenth day of October, A. D. 1867, personally appeared before me, the said Frederick L. Seitz, agent of the said James Goffinet, and on oath, saith, that he hath heard read the foregoing complaint, by Mm subscribed, and knows the contents thereof, and that the same is true to the best of his knowledge, information and belief.
    ERVIN PALMER,

      Notary Public, Wayne County, Michigan."

      Tbe language of tbe statute under which tbe foregoing complaint was drawn is as follows:
    “In the cases specified • * * * tbe person entitled to tbe possession of tbe premises, bis agent or attorney, may make complaint in writing and on oath * * . setting
    forth that tbe person complained of is in possession of tbe lands, etc., and bolds tbe same unlawfully and against tbe right of complainant."— Comp. L. § 4986.
    Tbe other facts necessary to an understanding of tbe case are stated in tbe opinion.
    Judgment was rendered for the plaintiff.
    Tbe following is tbe assignment of errors:
    1. Tbe court erred, in excluding tbe evidence offered by tbe defendant below, of tbe proceedings before tbe Circuit Court Commissioner, to recover possession of the premises described in tbe complaint in this suit, and tbe writ of restitution issued thereon.
    2. In refusing to charge tbe jury:

      a. That complainant must show that tbe defendant used violent menaces or actual force, or resorted to means of actual violence or terror, or their verdict must be for tbe defendant.
    5. That tbe use of tbe force implied in ordinary cases of trespass does not furnish sufficient grounds for maintaining this proceeding: that such violence or force must be used as would constitute a breach of tbe peace.

      c. That if rent was due and unpaid on tbe lease, under which tbe complainant held, then 'it was not unlawful for tbe defendant under tbe forfeiture provided in the lease to claim and take possession of tbe premises, if be could do so peaceably, and bold them against tbe complainant.

      d. That under tbe complaint in this cause a forcible detainer as well as entry must be shown to entitle the plaintiff to recover.

      e. That if tbe jury believed that possession of tbe premises described in tbe complaint was given up to Goffinet by Miles, through his agent, Seitz, then plaintiff conld not recover, as a judgment in the case against Seitz would be ineffectual to take the possession of the premises from said Groffinet.
    3. In charging, that if Sparling — the officer — was there on the night in question, with the writ of restitution, for the purpose of executing it, and the defendant threatened the plaintiff that if he did not give up possession Sparling would put him out by virtue of such 'writ, and that solely because of that threat plaintiff yielded possession to the defendant rather than be put out by force, then that is a forcible entry, and defendant is guilty.
    Also, in charging that no particular circumstances of terror are required when an officer of the law threatens to serve a process of this kind; that it is enough that the plaintiff yields to the threat of service.
    That it was immaterial whether any rent was due or not when the defendant took possession.
    That if under a claim of rent due or by an agreement between the parties, plaintiff yielded possession, defendant is not guilty.

      Ward & Palmer, and Wm. Jennison, for plaintiff in error.
    1. The defendant below offered in evidence, in justification, the proceedings before the Circuit Court Commissioner, including the, judgment and writ of restitution issued thereon, which were objected to by the plaintiff and excluded by the court, on account of informalities in the complaint.
    The complaint contains all the material allegations, and was made in effect in the form required by the statute — Comp. L. § 4986; 2 Mich. 225 — and if informal at all, was so on account of its being verified by the agent of the complainant, to the best of his knowledge, information and belief; and not positively.

      The states requiring affidavits, either provide or indicate in most cases the manner in which the facts shall be stated.
    The circumstance that the legislature, in the instances referred to, as well as in numerous others that might be cited, thus deemed it fit to point out when the facts should be stated positively, and when on belief, or on good reasons for belief; and when the verification should be made by persons knowing the facts, and have omitted to do so in other cases, would lead to the conclusion that, when no such restrictions or requirements were made, it was not deemed material which form of verification was adopted, and that either would be sufficient; there being no rule independent of the statute, unless it be that the verification is to be governed by the nature of the matter to be sworn to, or the circumstances of the person in regard to knowledge who is authorized to make it.
    In the proceedings in this case, under the landlord and tenant act, the statute provides that “the person entitled to the possession of the premises, his agent or attorney, may make complaint in writing and on oath, that the person complained of is in possession of the lands and tenements in question, and holds the’ same unlawfully and against the right of the complainant.”
    The object of the complaint is not for the purpose of presenting evidence to the officer to be weighed and passed upon, but only to secure good faith in the institution of the proceeding.
    A summons then issues requiring the defendant to appear and answer. There is nothing arbitrary in the proceeding; nothing done restricting the defendant’s liberty, or even his rights of possession or property, except on full hearing on due notice.
    So far, then, as the nature of the proceeding is concerned, there is no reason why a forced or rigid rule of construction should be applied to the statute.

      The matter to be sworn to is in part a conclusion of law, to which no man should be required to swear positively, and in regard to which the best lawyers in the land would often be the most in doubt — 6 Munf. 466 — and the whole matter may be verified by an agent or attorney, neither of whom are presumed or expected to have a personal knowledge of the matter to be verified. If the party authorized to make the verification makes such an one as he truthfully can, who will say that the legislature intended to require of him anything more? — 35 Barb. J5F. Y. 630.
    At common law, in affidavits to hold to bail, if made by a party acting in his individual capacity, he was required to make the statement of indebtedness positively, as he would be expected to have a personal knowledge of the fact, and it would probably be considered an evasion for him to make it in a qualified manner; but it was always sufficient for a plaintiff, or other person acting in a representative capacity, as an assignee in bankruptcy, or executor or administrator, or agent, to qualify his statement according to the circumstances.— 4 Burrows, 2283, 1992; 2 Rich. ('S. 0.) p. 197; Drake on Aliach. § 94; 1 Mich. 259; 10 Id. 372, 234.
    The oath on information and belief is as valid in law, and binds the conscience of the party making it, to the same -good faith in the proceedings, as if made positively; and if recklessly or falsely made, subjects the party to the same -legal penalties.— Roscos, Gr. JSv. p. 814; 20 N. Y. 365; 3- Greenlf. JSv. §§ 194, 200.
    2. The complainant having alleged both a forcible entry and detainer, should have been required to prove both.
    The statute requires that the complaint shall set' forth that the defendant entered the premises with force, or that he unlawfully holds the same with force, as the case may be.
    Thus, the party is required to set forth specifically what he claims, and having set it forth under oath, he has made his election for what he will proceed, and should be held to tbe proof of it. Tbe provision, of tbe Comp. L. § 4976, is in effect the same as in tbe Revised Statutes of 1838, under which it was held, in tbe case of Latimer v. Woodward, 2 Doug. Mich. 368, that when both a forcible entry and detainer were alleged, both must be proved.
    3. No actual force was used in this case; only tbe implied force contained in tbe threat that defendant below would take possession under tbe writ of restitution. Tbe statutory remedy is a substitute for tbe indictment at common law, and must be sustained by tbe same proof as would óstablish a breach of tbe peace under tbe indictment. 2 Doug. R. pp. 368, 372; -1 Mich. 17; 10 Mass. 403-409-
    Tbe party entitled to possession has a right to take it in any manner that does not involve a breach of tbe peace, and it was never tbe design of tbe statute to take away that right. — • 32 Vt. 82; 4 Johns. R. 150; 9 Wend. 20.
    If tbe writ of restitution was void, then tbe threat of the officer is not an element of force. It was a mere trespass, at most.
    Again, if tbe defendant was in arrears for rent on tbe 15th day of November, then, under tbe forfeiture provided in tbe lease, Goffinet was entitled to tbe possession. Spar-ling, on that day, acting for Goffinet, took possession peaceably, and though acting ostensibly under tbe writ of restitution, yet, if be bad tbe right to take it on other grounds, be is not debarred from tbe defense that those other grounds afford.
    Miles, it is true, afterwards intruded himself into tbe premises, and disputed tbe possession for twenty-four hours, but Sparling, having once got possession, bad a right to maintain it, even by force.
    Tbe complainant having alleged both a forcible entry and detainer, if be was not obliged to prove both, tbe defendant bad at least tbe right to have tbe question submitted, which it was, and it then became material whether rent was due or not, for if tbe lease was forfeited, and tbe defendant had a legal possession, he had a right to maintain that possession by force, and he was deprived of his just right by having that question withdrawn from the jury.

      Moore <& Griffin, for defendant in error.
    1. The evidence of the proceedings before the commissioner offered by the plaintiff in error was properly excluded.
    The complaint was not verified in a manner to give the commissioner jurisdiction.
    The general doctrine of the law is, that in summary or special proceedings where a court exercises an extraordinary jurisdiction, under a special statute which prescribed its course, that course ought to be strictly pursued; otherwise the proceedings are not merely voidable, but absolutely void. The court can act only under the special limited powers granted by the statute, and according to its forms of procedure.
    The statute of 1838, on this subject, does not provide in terms that the complaint shall be made on oath; but the language of the present statute is — “complaint in writing and on oath.”
    The verification of the complaint offered in evidence is neither within the letter nor the spirit of the statute.
    The statutes require diffierent forms of affidavits in various cases.
    But in all cases where an affidavit or a complaint on oath is required, there must be one, and it must contain all the requisites of the statute. — 2 Mich. 327; 3 Id. 590.
    When the statute requires certain facts to be stated, they must be stated positively, and not merely on information and belief.— 2 Doug. 432; 5 Mich. 98; 19 Wend. 394.
    And so are the precedents in this case.— 4 Mich. 345; Green’s Prac. 557-561.
    The oath required depends much upon the nature of the proceeding and the character of the facts to be sworn to.
    This is not only a special proceeding under the statute, but the facts to be stated in the complaint and verified, are sucb as tbe statute itself contemplates shall be within the knowledge of the party making the complaint. .
    Therefore we say that the statements should be made in such a manner as to have the direct and positive sanction of the party’s oath to their truth, and that not only so as to bind his conscience by the solemnity of an oath, but also to subject him to the penalties of the law in case the statements are untrue.
    The statements of the complaint in question do neither. The verification is simply reckless swearing. For it, the party could not be convicted of perjury.— 1 Bishop’s Grim. L. 366; 2 Id. 1006.
    But the statement in the jurat falls short of the positive-ness, and wants the deliberation involved in a statement of belief.
    It avers neither knowledge, information, nor belief.
    The averments in the body of the complaint are positive, but the jurat being “to the best of the knowledge, information and belief” of the deponent, its effect upon the body of the complaint is to strip it of any positive allegation whatever.
    A second objection to this complaint is, that it shows no right in Goffinet, the principal of the defendant, Seitz.
    The complaint is the complaint of Seitz, the agent, and not the complaint of Goffinet, the principal. It is signed by Seitz, and sworn to by him, but it is made in behalf of Goffinet.
    The party making the complaint is the complainant, and this whether he be “the party entitled to possession, his agent or .attorney,” just as a party making an affidavit for attachment is the affiant whether he be the party plaintiff or his agent.
    Under the statutes of ’46, only the party entitled to possession could make the complaint. • — • Rev. Stat. ’46, 544, § 13.
    In all cases under that statute the complainant would allege that the party defendant “holds unlawfully and against the right of the complainant.”

      But after amendment by inserting “his agent or attorney,” the agent becomes the complainant in those cases in which he makes the complaint, and the holding must be alleged to be against the right of the principal, or party entitled to possession.
    2. The court instructed the jury correctly as to the force necessary to be used to constitute a forcible entry. Taylor’s Land, and Ten. 583; 1 Hilliard on Torts, 397.
    Here was a deputy sheriff armed with a writ of restitution, and threatening to execute it.
    The plaintiff in error was there ready to say the word if necessary; and caused the officer to be there for this purpose. The terror was the terror of the law.
    The show of force was the seal of the court on a paper called a writ. The threat was the affirmation of the plaintiff in error that the writ was there to be used.
    Both of these he brought into requisition to obtain possession.
    The question of how he obtained possession was fairly submitted to the jury under clear, concise and correct instructions.
    3. Hnder the complaint in this cause a forcible detainer as well as entry need not be shown to enable plaintiff below to recover.
    To maintain this position, plaintiff in error relies upon Latimer v. Woodward, 2 Doug. 368.
    The statute under which the complaint in that case was made is quite different from the present statute.— Rev. Stat. 1838, p. 490, § 2.
    Besides, that complaint was not founded on a forcible detention, but on a forcible entry. No forcible entry was proven.
    Had a forcible entry been proven, the necessity of showing subsequent detention rests wholly on the peculiar phraseology of the statute.
    The present statute provides for a recovery of possession in two cases:

      a. When any forcible entry shall be made.

      b. When an entry shall be made in a peaceable man-' ner, and the possession shall be unlawfully held by force.
    The complaint in this cause is under the first provision, and is in accordance with the form laid down in Green’s Practice, p. 557.
    It was not necessary to allege it, and it was not necessary to prove it.
    Neither by the statute nor by the pleading is the latter allegation so connected with the former as to make the former depend upon it.
    The gist of the offense is the forcible entry. When that is proven the offense is complete.
   Graves J.

This is a writ of error to the Circuit Court for the County of Wayne.

The case was originally brought before a Circuit Court Commissioner, under the statute authorizing summary proceedings to recover the possession of land, and was taken to the court below by appeal. The issue was tried by a jury, who returned a verdict for the complainant.

Upon the trial, the defendant insisted that the complaint set up a forcible detainer as well as a forcible entry, and that to recover the complainant must prove both. The complaint states that on the 16th day of November, the complainant was in the peaceable possession of the premises, and that the defendant unlawfully entered with force and ejected and expelled the complainant, “and has ever since continued and still is unlawfully in the possession of said premises, and, unlawfully holding the same by force, contrary to the statute in such case made and provided; and that complainant is well entitled to the possession,” etc. The statute under which the complaint- was made, provides that “when any forcible entry shall be made, or when an entry shall be made in a peaceable manner, and the possession shall be unlawfully held by force, the person entitled to the premises may be restored to the possession thereof in the manner hereinafter provided.”

It will be observed that the statute describes two grounds of proceeding, and that the last one supposes a peaceable entry followed by an unlawful holding by force.

The complaint in question alleges an entry by force, and then proceeds to aver a holding by force also; but this could not constitute a charge on the last ground, since the element of a peaceable entry is not only wanting but would be excluded by the averment that the entry was by force. Whatever language there may be in the complaint not required in a proceeding on the first ground, may be rejected, and the case must be considered as one for forcible entry only.

The complaint in the case of Goffinet against Miles, was properly excluded. The verification supplied no such assurance of the truth of the facts as the statute required, and the complaint was consequently void.

The remaining questions in the case arise out of the charge as given and refusals to charge as requested, and in order to examine them, it is necessary to bring into view the course and drift of the testimony as presented to the court below.

The testimony of the complainant tended to show, among other things, that Miles was in actual possession on the 15th of November, 1867, as the assignee of one Ashley, who was the lessee of James G-offinet, the owner; that Seitz procured Deputy Sheriff Sparling to enter and take possession under a writ of restitution, and which writ was invalid; that the officer, after having so entered, attempted to maintain possession and threatened to expel Miles by force under the authority conferred by the writ; that the officer was countenanced and aided and directed by Seitz in the course pursued; that the purpose was to invest Seitz with the possession, and that Miles, on being told that the officer would put Mm out by force under tbe power conferred by tbe writ, departed from tbe premises.

Tbe testimony of tbe defendant tended to show that on tbe 15th of November mentioned, said deputy sheriff took possession in a peaceable manner under tbe before mentioned writ, and that what was done by bim after that, was done in maintaining such possession and in putting Seitz in possession; that at tbe time last mentioned, 1187.25 of rent, under tbe lease from Goffinet to Ashley, was in arrears and unpaid; that such lease contained a provision authorizing a re-entry in case of non-payment of rent when due and payable; that Seitz was tbe agent of Goffinet -for tbe purpose of taking care of tbe premises and collecting tbe rent; that Seitz went with Sparling when the latter took possession, and informed Miles that four months rent was due and unpaid, and that be wanted tbe possession and wanted bim to give up tbe premises without reference to tbe proceedings to recover possession, and that if be would surrender tbe lease be might occupy the premises till tbe middle of February, when Goffinet would be at home, and with whom be could then arrange tbe business, and that Miles agreed to do so, and surrendered tbe key and went quietly away.

Tbe defendant’s counsel requested the court to charge tbe jury that tbe complainant must show that the defendant used violent menaces or actual force, or resorted to means of actual violence or terror; that tbe force implied in ordinary cases of trespass was not sufficient; but that such violence or force must have been used as would constitute a breach of tbe peace.

Tbe court refused such request, but charged the jury on this point as follows: “That if Sparling was there on tbe night in question with tbe writ of restitution for the purpose of executing it, and the defendant threatened tbe plaintiff that if be did not give up possession, Sparling would put bim out by virtue of such writ, and that solely because of that threat the plaintiff yielded possession to the defendant rather than be put out by force, then that was a forcible entry, and the defendant was guilty; that no particular circumstances of terror were required when an officer of the law threatened to serve a process of this kind. It was enough that the plaintiff yielded to the threat of service.”

The complainant had the right to act upon the circumstances as they then appeared, and the defendant can not be heard to say that his conduct was inconsistent' with his purpose. He procured a writ of restitution and caused it to be delivered to an officer for service. He attended at the premises with the officer who had the writ in hand. This process was assumed to be valid and equal to its purport. It required the officer to remove the complainant from the premises, and authorized the employment of the necessary force. It was in itself a declaration to the party that he must forthwith yield possession, and that if he did not he would be expelled by force. The conduct of the defendant and the officer spoke no other language. The course of the defendant clearly indicated the design to exert, if necessary, all the power conferred by the writ, and the complainant yielded to such display of force. The proceedings from the beginning were at the defendant’s instance. They constituted a single scheme and were designed to accomplish but one purpose. That purpose was the expulsion of the complainant, and it involved an entry which would be inconsistent with the possession of complainant. '

To constitute a forcible entry within the meaning of the statute, it is not necessary that the actual invasion of the premises should at the very moment be attended by the circumstances requisite t'o give it the character of a forcible entry, or be accompanied by threats, actual force or violence, or any conduct which would constitute a breach of the peace; but if the entry be obtained by stealth or stratagem, or without real violence, and. the party entering evinces his purpose in having entered to have been the forcible expulsion of the party in possession, and it is followed up by actual expulsion by means of personal threats or violence, or superior force, it will amount to a forcible entry. — • Willard v. Warren, 17 Wend. 257, and cases cited; Saunders v. Robinson, 5 Met. 343; Commonwealth v. Shattuck, 4 Cush. 141; People v. Smith, 24 Barb. S. C. 16.

The charge of the Circuit Judge on this point, when applied to the testimony given, was in conformity with the view here stated, and is deemed to be correct.

The court was also asked to charge the jury that, if rent was due and unpaid upon the lease, it was not unlawful for the defendant to take possession under the provision authorizing forfeiture if he could do so peaceably, and thereafter hold against complainant. This was refused, but the jury were instructed that it was immaterial whether any rent was due when the defendant took possession; that, if under a claim of rent due, or by an agreement between the parties, the plaintiff yielded possession, the defendant was not guilty.

The foregoing request was based upon the assumption that there was some evidence tending to show that the defendant entered under the provision for re-entry in the lease, but the bill of exceptions shows no such evidence. Whatever testimony was delivered in respect -to the rent in arrears as appears by the record, had reference solely to an imputed agreement by Miles to yield the premises and surrender the lease; and upon this point the case was fairly submitted to the jury, and they must have found that there was no such agreement. As this disposes of all material points, it follows that the judgment must be affirmed, with costs.

Cooley Ch. J. and Campbell J. concurred.

Ohristiancy J. did not sit.


author: The Court

text:
    Peter L. Miles v. James Goffinet.
    Error to Wayne Circuit.
    This was a proceeding brought before T. K. Gillett, a Circuit Court Commissioner for Detroit, to recover possession of certain premises for the non - payment of rent. The complaint was verified by an agent “to the best of his knowledge, information and belief.”
    A summons was issued and duly 'served on defendant.
    There was no appearance by defendant.
    Judgment was rendered against him, and a writ of restitution was issued and executed.
    The proceedings were removed from said Commissioner’s court to this court by certiorari.
   The Court

held that the verification of the complaint was defective, and gave the Commissioner no jurisdiction. See preceding case of Seitz v. Miles, p. 456, where the same point was decided.


author: Cooley Ch. J.

text:
    James Lynch v. The People.

      Statutes: Pleading: Exceptions. In pleading statutes where there is an exception in the enacting clause, the pleader must negative the exception; but when there is no exception in the enacting clause, but an exemption in a proviso to the enacting clause or in a subsequent section of the act, it is matter of defense, and must be shown by the defendant.

      Oity ordinance: Violation of Sabbath. In a prosecution against a saloon keeper under a city ordinance prohibiting the keeping open of saloons on Sunday for drinking purposes, but which permitted the furnishing of meals to boarders, etc., there was evidence tending to show that persons were accustomed to take meals at his saloon, as well as to purchase drinks.

      Held, That it was entirely competent to permit the keeping open of saloons under the city ordinance for one purpose, and to forbid their being kept open for other purposes.

      Held further, That the opinion of the Recorder is final as to the suffi ciency of the evidence under a complaint for the violation of city ordinances.

      Heard April 17th.

      Decided April 21st.

      Certiorari to the Recorder’s Court of the city of Detroit.
    The plaintiff in’ error was tried and convicted in the Recorder’s Court of Detroit for a violation of section one of an ordinance relative to “quiet and good order,” and which is as follows:
    “ Seo. 1. No person shall keep open his or her store, shop, ordinary, saloon, bar room, hall alley, beer hall, restaurant, pleasure garden, victualing house, billiard room, grocery, or other place of business, pleasure or amusement, or give or make or be present at or take part in or permit on any premises occupied by him or her any public show, diversion, theatrical representation, ball, dance, game, or play, on the first day of the week, called Sunday.
    The section shall not be construed to prevent, among other things, the following, to wit: the furnishing of meals and lodgings to travelers and hoa/rders, nor lo prevent the keepers of gardens, beer halls, saloons, or other pleasure resorts from doing business between the hours of 2, p. m. and 10 p. m., provided, etc.”
    The following is a copy of the complaint:
    STATE OF MICHIGAN, ) tss. In the Recorder’s Court. Wayne County, City of Detroit. )
    Peter Graham, being first duly sworn, makes complaint and says, that at the city of Detroit aforesaid, on Sunday, the first day of September, A. D., one thousand eight hundred and sixty - seven, and within the corporate limits of said city, one James Lynch, keeper of saloon bearing street No. 4 Woodward avenue, did then and there unlawfully and wilfully keep his saloon open before the hour of two o’clock in the afternoon, to the evil example of all others in the like case offending, and contrary to the ordinances of said city, in such case made and provided. See. 1 of an ordinance, relative to quiet and good order.

    (Signed) PETER GRAHAM.
    The facts are stated in. the opinion.

      S. Lamed, and F. A. Balcer, for plaintiff in error.
    1. The complaint is insufficient and void for the reason that it does not negative the exceptions contained in the-first section of the ordinance “relative to quiet and good order.”

      а. The rule is well settled that where an action is given by a statute, and in another section or subsequent statute exceptions are enacted, the plaintiff need not negative these exceptions; but where the exception is contained in the same section which gives the right of action, the plaintiff must negative the application of them to his cause of action.— 4 Pick. 347; 2 Pick. 140; 6 Greenl. 274; 1 T. B. 141; 6 Id. 559; 1 Saunders, 262.
    б. If the complaint did not allege that defendant’s saloon was kept open before two o’clock in the afternoon, it certainly would be bad. Yet the proviso as to time is no more an exception nor no more descriptive of the offense than the other provisoes contained in the same section, especially the one relative to furnishing meals to travelers and boarders.

      c. The averment that defendant’s saloon was kept open, “ contrary to the ordinances of said city in such cases made and provided,” is insufficient, because there is no ordinance to compel the defendant to keep his saloon closed upon Sunday, unless he does not come within the exceptions or provisions mentioned in the section upon which the complaint was made. — 2 Greenl. 228.
    If the defendant kept his saloon open on Sunday forenoon to furnish meals to either travelers or boarders, although he sold liquor by the glass at his bar at the same time to said travelers and boarders, nevertheless he is not liable under the ordinance.
    The ordinance says, “No person shall keep open his or her store, shop, etc., on the first day of the week called Sunday.”
    The offense consists in “keeping open” a place of business. And if the ordinance allows a store or saloon to be kept open on Sunday for one kind of business, it necessarily follows that said store or saloon would tljereby be opened for all kinds of business.

      Wm. Gray, for tbe People.'
    We do not controvert tbe doctrine stated in tbe first point of plaintiff’s brief.
    We simply claim that it and tbe cases relied upon do not apply to tbe present case.
    Tbe ordinance refers to several places — stores, ordinaries, saloons, restaurants, etc.
    A restaurant is “an eating - bouse ” (see Webster), and ordinary bas tbe same definition; and if tbe complaint bad been that tbe defendant kept open bis restaurant or ordinary, and furnished meals, it would be proper to negative that tbe persons supplied were travelers or boarders.
    But tbe word saloon bas an entirely different signification. It is used to designate a place where drinks, not meals, are furnished.
    If tbe complaint was for keeping open a store or billiard room, would it be necessary to allege that tbe parties received there were not travelers or boarders supplied with meals or lodgings?
    Tbe exceptions can only apply to establishments where tbe sole or principal business is to furnish meals, etc.; and this is not tbe case of a saloon.
    Again, it might happen, and does in tbe case of hotels, etc., that a place for meals and a saloon are under the same roof. Under this ordinance one may be open for travelers, etc. — tbe other must be closed; or a place for meals and a place for drinks may be in the same room; if so, tbe latter is tbe saloon part, and must be closed.
    If we look at tbe testimony, we find that people were passing in and out all tbe forenoon, not at usual meal hours; that eight or ten were there at one time — several drinking, but no pretence that any were there for meals.
    We submit that it is clear that tbe defendant kept open, not an eating - room, but a saloon..
   Cooley Ch. J.

The plaintiff in error was convicted in the Recorder’s Court of the city of Detroit for a broach of the ordinance “as to quiet and good order.” This ordinance in its first section provides that no person shall keep open his or hei store, shop, ordinary, saloon, bar room, ball alley, beer hall, restaurant, pleasure garden, victualing house, billiard room, grocery or other place of business, pleasure or amusement, or give, or make or be present at, or take part in, or permit on any premises occupied by him or her, any public show, diversion, theatrical representation, ball, dance, game or play, on the first day of the week, called Sunday. It then further provides that this section shall not be construed to prevent, among other things, the furnishing of meals and lodging to travelers and boarders, nor to prevent the keepers of gardens, beer halls, saloons, or other pleasure resorts, from doing business between the hours of 2 p. nr. and 10 p. m. under certain restrictions. The complaint charged that, at the city of Detroit, on Sunday, the first day of September, 1867, the plaintiff in error, keeper of a saloon bearing street number 4 "Woodward avenue, did then and there unlawfully keep his saloon open, before the hour of two o’clock in the afternoon, contrary to said-ordinance, etc.

It is claimed that this complaint is insufficient, because it does not negative the exceptions contained in the first section of the ordinance; that is, among other things, it does not negative the fact that the plaintiff in error kept the saloon open in order to supply meals to boarders and lodgers; which would have been no offense under the ordinance.

The rule in pleading statutes is stated by Mr. Justice Manning in Myers v. Carr, 12 Mich. 63. In declaring on a statute, where there is an exception in the enacting clause, the pleader must negative the exception; but where there is no exception in the enacting clause, but an exemption in a proviso to the enacting clause, or in a subsequent section, of the act, it is matter of defense, and must be shown by the defendant. See also Attorney General v. Oakland County Bank, Walk. Ch. 90. The exceptions in this ordinance are not in its enacting clause, and the complaint is good within the rule, evén if the exceptions pointed out by counsel can be considered applicable to saloon keepers like the plaintiff in error, which may be somewhat doubtful.

It appears that on the trial in the Recorder’s Court the plaintiff in error gave evidence to show that some persons were accustomed to take meals at his saloon; and he thereupon claimed a right to keep his saloon open for that purpose, and also claimed that “ if the ordinance allows a store or saloon to be kept open on Sunday for one kind of business, it necessarily follows that said store or saloon would thereby be opened for all kinds of business.” This claim is gravely made, but scarcely admits of a grave answer. Every livery stable, every drug store, and even any private dwelling house in the city, might lawfully be turned into a tippling shop on Sunday, if this position has any substance It is certainly lawful to keep them opeu for some purposes on that day; but it is entirely competent to forbid their being kept open for other purposes, as has been done by this ordinance. To “keep open,” within the meaning of the ordinance, implies a readiness to carry on the usual business therein; and if this business is not within the exceptions of the ordinance, the offense is committed.

The evidence tended to show that the plaintiff in error kept his saloon open on the Sunday in question, in order to supply customers with drinks at his bar. This was not a lawful purpose under the ordinance; and it is no excuse that he may also have furnished meals to boarders at the same place. The lawful business — if it was one — can not protect the unlawful. Whether the evidence was sufficient to establish the fact that he kept his place of business open for the one purpose rather than for the other, is a question upon which the opinion of the Recorder is final. As we discover no erroneous ruling of law in the case, the conviction must be affirmed with costs.

Grates and Campbell JJ. concurred.

Christiancy J. did not sit.


text:
    Abner A. Corkins v. Simon S. Collins.

      Statute of Bh'auds: Consideration: Belease of property. A promise to pay the debt of another is not exempted from the operation of the statute of frauds by reason of its consideration being the release of property to the original debtor. It remains a collateral promise and must be in writing.

      Heard April 14th.

      Decided April 21st.

    Error to Wayne Circuit.
    This was an action brought to recover the value of a bill for board.
    The defense was the statute of frauds.
    Judgment was rendered for defendant.
    The facts are stated in the opinion.

      fining é Minnoclc, and Moore & Griffin, for plaintiff in error.
    1. The testimony in this cause is sufficient to give the promise of the defendant the character of an original undertaking.
    The nature of the transaction is this: Corkins accepted Collins as his debtor; relinquished his security and discharged Sykes.
    The intention of the parties 'must govern. 18 Maine, 324.
    If Sykes was discharged, the promise of Collins is not within the statute of frauds. This is settled law. 3 Pars.

      on Cont. 28; Browne on Frauds, §193; 9 Vt. 137, 33, 132; 8 Gray, 239.
    2. The relinquishment of a lien or security on the part of a creditor, which he holds for a debt due him, takes a promise, made in consideration of such surrender, out of the statute of frauds, providing any benefit or advantage enures to the promisor. 3 Burr. 1886; 2 Fast, 325; 6 Oar. é Payne, 752; 16 Wis. 557; 20 JV. J. 336; 3 Strob. 207; 21 Me. 410; 28 Vt. 351; 2 Allen, 423; 3 Met. 369 ; 5 Oush. 488.
    But though no benefit or advantage enures to the promisor, yet, according to highly respectable authority, the promise is not within the statute. 3 Fsp. 86; 6 Vt. 54; 28 Ind. 697; 30 Id. 641; 14 Me. 138; 17 Id. 508; 3 III. 321; 5 Minn. 462; 1 McQord, 353; 1 Rich. 213; 7 Ind. 81; 7 H. & J. 392; 4 Ala. 230.
    In cases where the collateral promise (so called) is a part of the original agreement, and founded on the same consideration, moving at the same time between the parties, the test is, to whom is the credit given; what is the intention of the parties, gathered not alone from the language expressed, but from all the circumstances of the case.
    And it is only when the promise is distinctly collateral that it is within the clause of the statute. — 3 Pars, on Oont. 19; IF. D. S. 192; 6 Ala. 694; 19 Ind. 100; 2 la. 528; 27 N. J. 449.
    In cases where there is already a subsisting debt or demand, and the promise is founded upon a subsequent and distinct understanding, why may we not arrive at the truth in the same manner, namely, by ascertaining what is the intention of the parties? to whom is the credit given? rather than to say absolutely that the promise is void unless some benefit enures to the promisor.
    Again, every case similar to the one at bar, is nothing more than the purchase of the security with the consent of the debtor.

      The promisor takes the benefit of the purchase. If he chooses at once to yield up that advantage to the debtor, must the promisee suffer?
    The statute of frauds was not enacted to reach such a case; it is not within the mischief to be remedied.
    The position we have taken, to quote from Judge Story, “seems to us a reasonable doctrine, and tending rather to suppress than encourage fraud.”

      Patchin é Proton, for defendants in error.
    There is one special assignment of error, viz:
    That the said court instructed the jury “ that under the evidence as given in said cause, the verdict must be for defendant.”
    Under the testimony, the only question was clearly that of law, whether the promise made was within the statute of frauds; and it was the province of the court, and the court only, to decide it. Where there is no conflict of evidence the question is one of law upon which direct instruction ought to be given.— 5 Mich. 501.
    Every special promise to answer for the debt, etc., of another, must be in writing, and signed by the party to be charged thereby.— Comp. L. § 944.
    Where the object of the promise is to obtain the release of the property of the debtor or other forbearance to him, (the debtor) it is within the statute. — 3 Pars, on Cont. 24; 3 Met. 402; 14 Wend. 246; 4 Denio, 275; 1 Strobhart, 5; 21 Me. 410; 4 Yerg. 563; 12 Mich. 15; 21 N. Y. 411.
    There is a class , of cases where there is a consideration moving directly between the promisor and promisee, where, although the promise is to pay the debt of another, it need not be in writing, as where liens are discharged or securities given up for the promisor’s benefit.— 3 Pars, on Gont. 26, note; 10 N. II. 32; Roberts on Statute Frauds, § 203-210.
    But this case does not belong to this class. Corkins was to deliver up Sykes’ trunk to him and not to Collins, or for his benefit, and he did so deliver them.

      For some reason upon some subsequent understanding with Sykes, Collins took one of the trunks to his room, but there is no testimony tending to prove that this was done to secure Collins for his promise. If it was so it would make no difference, for this was a matter solely between Sykes and Collins, after Oorkins had given up possession to Sykes.
    Nor does the testimony tend to prove that Sykes was discharged by the agreement with Collins.
    The doctrine is carried still further, and held in many authorities that, notwithstanding there is a sufficient consideration as between the promisor and promisee, the promise must be in writing.— 23 Bari. 610; 2 Denio, 45; 4 Johns. 422; 3 Humphrey, 330; 12 Johns. 291.
   Campbell J.

Oorkins sued Collins on a verbal promise to pay a bill for board and money lent, due from one James Sykes. The consideration was the release of certain trunks supposed to be held for the debt. ' The defence was the statute of frauds. IJpon the testimony the court directed the jury to find for defendant.

There was no testimony tending in our opinion to show an extinguishment of the liability of Sykes, and the property was released for his sole benefit. If Oorkins had a lien upon it, the only question to be decided is whether a promise to pay the debt of another is exempted from the operation of the statute requiring such promises to be in writing, by the release of property to the original debtor.

Such a release of a valid lien or claim would be a sufficient consideration for a written promise, for if a consideration passes from the promisee it usually makes no difference to whom it passes. But the question before us is whether a party who promises to pay the debt of the person who first owed and still owes it, for a consideration passing to that person, is to be regarded as promising to pay on his own behalf or on the original debtor’s behalf. If the debt is payable on his own behalf the promise may be' verbal. If not, then it must be in writing.

It is not pretended that an extension of time, or any other agreement involving no release of property or extinguishment of liability, if made in favor of the principal debtor, would authorize the verbal promise of a third person to pay the debt to be enforced., But a distinction is sought to be drawn where property is released or given up to the debtor. There is no obvious reason for any such distinction. The law puts all valuable considerations on the same footing. In every valuable consideration there is a gain on one side or 'a loss on the other, and usually these coincide, but the law does not vary the nature or validity of the contract by the character of the commodity or service gained or lost. Nor can we see how the position of a surety is changed by the kind of benefit resulting to his principal. The surety is no richer when his principal receives chattels than when he obtains any other advantage, and it seems absurd to hold that the contract is any more on his own behalf in the one case than in the other.

When, by the release of property from a lien, the party promising to pay the debt is enabled to apply it to his own benefit, so that the' release enures to his own advantage, it is quite easy to see that a promise to pay the debt in order to obtain the release may be properly regarded as made on his own behalf, and not on behalf of the original debtor, and any possible advantage to the latter is merely incidental and is not the thing bargained for. That promise is, therefore, in no proper sense a promise to answer for anything but the promisor’s own responsibility, and need not be in writing. So when a person sells a claim and guarantees its payment, the guaranty is collateral to his own contract, and is not intended for the debtor’s advantage.

But where the entire transaction, both promise and consideration, is intended and operates exclusively for the advantage and on behalf of the debtor whose debt is guaranteed, there seems to be no plausible ground for holding that the promise is anything but collateral, and if such a promise can in any case be valid without a writing, it must be valid in all. There is no tangible middle ground. Among valuable considerations there are no degrees of validity. They are all good or bad, but one valid one is as high in rank as another.

• We shall not attempt to elaborate a doctrine which is confined within such narrow limits. There are undoubtedly some cases where from the facts it may be hard to determine in whose behalf a promise is really made; but where this is clear, there seems to be no difficulty in determining whether it is original or collateral to the liability of another. The case of Mallory v. Gillet, 21 N. Y. 412, contains in the opinion delivered by Judge Gomstoclc so full and satisfactory a discussion of the whole subject, that it may be properly referred to as leaving nothing more to be said on such a case as the present.

The Circuit Judge was right in giving the instructions complained of.

It may be remarked that it is very doubtful whether the property released was subject to any lien whatever. A portion of the debt was for money lent, and we infer that the balance was due not for the accommodation of travelers in an inn, but for board to a person not standing as to Sykes in the privileged position of an inn-keeper. But no point was made on this at the hearing, and perhaps the facts, if depending on this alone, might not be decisive. We base our opinion, therefore, on the principal question discussed.

The judgment should be affirmed with costs.

Cooley Ch. J. and Graves J. concurred.

Christiancy J. did not sit.


text:
    Robert Inkster v. Elizur R. Carver et al.

      Test of Jurisdiction in Circuit Court: Declaration. Under the provision of the constitution giving exclusive jurisdiction to Justices of the Peace to the amount of $100, the damages claimed in the declaration or process, and not the amount found by the court or jury upon the trial is the test of jurisdiction.

      Constitutional law: Title of Acts. The title to tlie act regulating costs (Sess. L. 1867, p. 88,) is as follows:
    “ An Act to repeal all existing laws, rules and provisions of law restricting or controlling the right of a party to agree with an attorney, solicitor or counselor for his compensation, and to more accurately fix and determine the costs to be allowed to the prevailing parties in suits at law, in the Circuit Court.”
    The act provides for the taxation of costs in suits at law, including attorneys fees; and also permits parties to suits to make such private arrangements with their attorneys for carrying on suits, as they may agree upon.

      Held, That the object of this act was to settle and declare the laws of compensation for skill and services in suits at law, in the Circuit Court; and that comprehends the question of compensation as between lawyer and client, as well as between the parties, and was the proper subject of a single act. It does not conflict with that provision of the c mstitution which declares that no law shall embrace more than one object, which shall be expressed in its title.

      Costs: Prevailing party. Under the Comp. L. §5597, subd. U, the plaintiff was entitled to costs “in all actions for the recovery of any debt or damage * * * in cases where such actions are not cognizable before a Justice.”’
    By the provisions of the Act of 186'?', p. 85, it is provided that the prevailing party shall recover costs in specified cases.
    Held, That this act is not to be construed as changing the pre-existing law in regard to the party entitled to recover costs in suits commenced in the Circuit Court; but only as regulating the amount of costs recoverable in the cases therein specified.
    The words “prevailing party” are to be understood as referring to those parties entitled to costs under the unrepealed law.

      Heard April 18th.

      Decided April 21st.

    Case made from Wayne Circuit.
    This was an action of assumpsit to recover the value of certain sawed lumber.
    The declaration was on the common counts, and damages were laid at $500.
    Judgment was rendered for plaintiff, with costs.
    The facts are stated in the opinion.

      H. M. & W. M. Cheever, for plaintiff.
    1. The first question raised denies the jurisdiction of the Court to render a judgment for damages, because the amount recovered was within the exclusive jurisdiction of a Justice of the Peace.
    By the Constitution Circuit Courts in all civil cases have “ original jurisdiction,” and by the statute “ original and exclusive jurisdiction” in all cases not otherwise provided.— Const. Art. 6, §8; Comp. L. § 3418.
    By the constitution Justices of the Peace have “exclusive jurisdiction,” and by the statute “original jurisdiction,” in all civil cases “wherein the debt or damages do not exceed one hundred dollars.— Const. Art. 6, §18; Comp. L. §3653.
    This jurisdiction must in each case be determined by the record, and when it depends on amount, by the ad damnum of the writ or declaration. — 3 Mich. 466.
    The amount claimed in the declaration in this case was $500.
    2. The second question denies the power of the court to give plaintiff costs.
    Costs depend entirely upon the statute, and are not awarded by common law.
    By the statute, as it existed previous to the act of 1867, plaintiff was entitled to costs.— Comp. L. § 5597, sub. 4 and 5.
    By the act of 1867, which repealed § 5597, plaintiff was entitled to costs as the “prevailing party.” — Act of 1867,y>.83.
    And no costs can now be taxed, excepting as allowed by the latter act.— See § 2.
    3. But it is insisted that the act of 1867 is unconstitutional and void, because in conflict with sec. 20, art. 4, of the constitution, in that it embraces more than one object.

      a. It does not conflict with the spirit of sec. 20.
    The act has but one general object, which means, end or ultimate purpose. That end or purpose was to regulate all the expenses of litigation: both attorney’s charges and costs. This object is accomplished by removing all restrictions from the former, and defining and limiting the latter
    The subjects embraced in the law may be various, provided they are necessarily included to perfect the object as expressed in the title. —13 Mich. 494.

      h. Neither does it violate the letter of the constitution. Costs are supposed to answer the double purpose of remunerating the prevailing party for his disbursements, and punishing the defeated litigant for compelling a resort to judicial proceedings. But the costs as taxed only repay the smaller portion of the expenses of litigation, leaving the greater item of attorney’s fees and charges to pay.

      Ward & Palmer, for defendants.
    1. The court had- no jurisdiction in said cause, and could not render judgment on said verdict, for the reason that the amount of the verdict was less than $100.— Const. Art. 6, § 18.
    2. If the court below had jurisdiction in this cause, costs should have been allowed the defendants and not the plaintiff, under said verdict.
    Before the statute of 1867, there will be no question but that the 4th sub. of § 5597 and §5600 Comp. L. gave the defendants costs, and not the plaintiff.
    The law of 1867, regulating costs, is unconstitutional.

      Article 4, § 20 of the constitution provides that no law shall embrace more than one object, which shall be expressed in its title.
    The act of 1867, Session Laws of 1867, p. 83, repeals all existing laws, rules, and provisions of law, restricting or controlling the rights of a party to agree with an attorney, solicitor or counselor for his compensation, and to more accurately fix and determine the costs to be allowed to the prevailing parties in suits at law in the Circuit Court,” or rather abrogates all laws relating to champerty, so far as attorneys, solicitors, or counselors are concerned, and the penalties attached thereto. And then goes on to provide what attorneys’ fees may be taxed as a part of the costs in suits at law; one relating to contracts between private individuals and the law regulating them; and the other fixing the amount to be allowed to certain public litigants under cértain circumstances under a judgment of a legal tribunal; objects distinct from each other, and previously controlled by entirely separate provisions of law.
   Graves J.

This is an action of assumpsit, commenced by declaration in the court below on the 5th day of January, 1867. The declaration contained the common counts only, and the damages were laid at $500. On the 24th of the same month, the plaintiff filed his bill of particulars, and therein claimed $236.09; and the defendants pleaded the general issue on the day following. On the 25th of September thereafter, the cause was tried by a jury and the plaintiff submitted evidence tending to show a demand against the defendants for sawing to the amount of $217.11. The defendants submitted evidence under the issue tending to prove payments by them upon said demand to a considerable amount, and the jury returned a verdict in favor of the plaintiff for $53.51 damages. The defendants’ counsel thereupon insisted that, inasmuch as the recovery by the plaintiff was less than $100, the Circuit Court had no jurisdiction to render any judgment for the plaintiff; and that in any event the defendants were entitled to recover costs. The court, however, awarded judgment in favor of the plaintiff for the damages found by the jury, together with full costs of the suit.

In Strong v. Daniels, 3 Mich. 466, it was decided, upon deliberate consideration, that the damages claimed in the declaration or process, and not the amount found by the court or jury upon trial, must be the test of jurisdiction under the provision of the constitution giving exclusive jurisdiction to justices of the peace to the amount of $100. That is believed to be the only practical rule, and it ought not to be brought into doubt by any re - examination of the question.

The act approved March 15th, 1867, is claimed to be in conflict with that provision of the constitution which declares that no law shall embrace more than one object, which shall be expressed in its title.

Before the court will declare an act invalid as opposed to the constitution, the repugnancy of the law to the constitution must be manifest; and if the conflict is supposed to arise from any peculiar interpretation of the act, the law should be sustained and such interpretation overruled, unless the particular interpretation is imperatively required. The object of the act in question was to settle and declare the law of compensation for skill and services in suits at law in the Circuit Court. This object comprehended the question of compensation as between lawyer and client as well as between party and party, and in such view was the proper subject of a single act, and the title sufficiently expressed that objects. — Conner v. The Mayor, etc. 1 Seld. 285; The People v. Mahaney, 13 Mich. 482. "Whether the act is susceptible of any interpretation which could possibly make it applicable to a subject not expressed in the title or which would produce such an incongruity as the constitution interdicts need not be considered. It is sufficient for the present purpose that it stands well upon the application now involved.

It was further contended that costs should have been given to the defendants. This position is deemed to be correct.

The law of 1867 is not to be understood as changing the pre-existing law in regard to the party entitled to recover costs in suits commenced in the Circuit Court, but as regulating the amount of costs recoverable in the cases specified. The contrary view would sweep away many salutary provisions and produce almost irremediable confusion and embarrassment. Had it been tbe purpose of tbe Legislature to produce a change so wide and radical, it would not have been left to be inferred from a single vague expression.

The familiar rule that the law does not favor repeals by implication, tends somewhat to fortify the view here taken. Much stress was placed upon the words “prevailing parties,” by the plaintiff’s counsel. These words must be taken to refer to those parties entitled to costs under the unrepealed law, and not to parties, who, although they recover damages, are denied costs by such law.

In using the words mentioned, the legislature were providing what costs should be recovered by those entitled to recover costs, and were not overturning a great number of pre-existing enactments which regulated the right to costs.

They passed directly from a repealing clause to one of positive institution, and recognized the existence of provisions which determined who were the “prevailing parties” as to costs.

I think the rule laid down in Strong v. Daniels, governs this case, and that the defendants ought to recover costs.

The judgment below must be reversed, and judgment must be entered here in favor of the plaintiff for $53.51 damages, and in favor of the defendants for the costs of both courts.

Cooley Ch. J. and Campbell J. concurred.

Christiancy J. did not sit.


author: G-raves J.

text:
    James Dewey et al. v. Hugh Johnson.

      Costs; Construction of Statute. So much, of the act of 1867 (p. 83) as relates to costs in appeal cases, held to be construed as follows:
    1. In suits upon contract when the appellant omits to defend before the justice, the appellee will be entitled to costs in the Circuit Court, unless such court is satisfied that the judgment before the justice was at least fifteen dollars more than it ought to have been, and in case said court is so satisfied the appellant will be entitled to costs.
    2. In suits upon contract where the appellant defended before the justice, the appellee will be entitled to costs in the Circuit Court, unless the judgment in the latter court is at least ten dollars more favorable to the appellant than the judgment before the justice; and in case the judgment in the Circuit Court is more favorable to the appellant than the judgment before the justice, by ten dollars or more, the appellant will be entitled to costs.
    3. In all other appeal cases than those specified, the appellee, if he recover at all, will be entitled to costs, unless the appellant succeed in reducing the recovery which he suffered in the court below; and if he succeed in producing such reduction, the Circuit Court, ijti , its discretion, may award costs as it deems proper in view of such reduction.
    4. In all appeal cases brought into the Circuit Court after the taking effect of the act, and where a party would be entitled to costs under the foregoing regulations, in consequence of having presented by the pleading a different issue in the Circuit Court from that presented in the court below, costs must be denied to him, and given to his adversary.

      Heard April 18th.

      Decided April 21st.

    Case made after judgment from Wayne Circuit.
    This was an action of assumpsit brought before a justice of the peace, and appealed to the Circuit Court. The judgment against the defendant was reduced more than ten dollars. Plaintiff asked for costs, and which were granted.
    The case involves a construction of the law of 1867, giving costs to parties in certain cases.

      Ward é Palmer, for plaintiff.

      C. Hunt, for defendant.
   G-raves J.

The plaintiffs brought assumpsit before a justice of the peace against the defendant for work, labor and materials, and filed specifications of their claim which amounted to $111. The defendant pleaded the general issue and gave notice of recoupment. The cause was tried before the justice in July, 1867, the defendant appearing and making defence. The justice rendered judgment in favor of the plaintiffs for $102.02, besides costs. The defendant thereupon carried the cause by appeal to the Circuit Court where it was tried before -a jury, who returned a verdict for the plaintiffs of $60. On the delivery of the verdict the defendant’s counsel moved the court to allow to the defendant his costs of suit, and also to award costs in the case as in the discretion of the court might seem just. The, court decided that under the act approved March 15th, 1867, the plaintiffs, who were appellees, were absolutely entitled to full costs and thereupon awarded judgment upon the verdict with full costs to the plaintiffs, including an attorney fee of $30. There is no controversy in the case, except as to the decision of the court below upon this question of costs.

The defendant claims first, that the act before mentioned is invalid; but if not, then second, that the defendant was entitled under it to recover his costs agreeably to Ms motion.

The first point has been settled adversely to the view of defendant’s counsel.— Inkster v. Carver & Carver, 16 Mich. 484.

Holding as we do that the statute is valid, the second point makes it necessary to enquire whether the case presented falls within it, and if so, to ascertain the consequence.

The observations made in the case of Inkster v. Carver & Carver, suffice to show that the words "prevailing-party” in the statute are not so inflexible as to compel the court to give full costs in every case to the party recovering any amount however trifling. In an appealed case, such as the present, the position there taken finds some support -in the language of the proviso.

Although this proviso is very confused and ambiguous, it sufficiently shows the purpose of the legislature to have been to make specific regulations touching the right to costs in certain appeal cases, and to submit to the discretion of the court certain questions as to costs in all other appeal eases.

It is not to be disguised that the statute is so obscure in some of its parts as to be nearly beyond the pale of' sensible interpretation.

But this circumstance, while it increases the difficulty, by no means lessens the necessity for making the attempt.

It is conceived that the intent of the provisions relating to appeal cases may be expressed by the following propositions :

1. That in suits upon contract, when the appellant omits to defend before the justice, the appellee will be entitled to costs in the Circuit Court, unless such court is satisfied that the judgment before the justice was at least $15 more than it ought to have been; and in case said court is so satisfied, the appellant will be entitled to costs.

2. That in suits upon contract, when the appellant defended before the justice, the appellee will be entitled to costs in the Circuit Court, unless the judgment in the latter court is at least $10 more favorable to the appellant than the judgment before the justice; and in case the judgment in the Circuit Court is more favorable to the appellant than the judgment before the justice by $10 or more, the appellant will be entitled to costs.

3. That in all other appeal cases than those specified, the appellee, if he recover at all, will be entitled to costs, unless the appellant succeed in reducing the recovery which he suffered in the court below; and if he succeed in producing such reduction, the Circuit Court in its discretion may award costs as it deems proper in view of such reduction.

4. That in all appeal cases brought into the Circuit Court after the taking effect of the act, and where a party ■would be entitled to costs under the foregoing regulations, in consequence of having presented by the pleading a different issue in the Circuit Court from that presented in the court below, costs must be denied to him and given to his adversary.

If this exposition of the statute is correct it follows that the case before the court belonged to the second head, and that the appellant, who is the defendant, was entitled to costs in the court below as matter of right.

The judgment of the Circuit Court must be reversed, and judgment must be entered in this court in favor of the plaintiffs for sixty dollars damages, and in favor of the defendant for his costs in the court below and in this court.

Cooley Ch. J. and Campbell J. concurred.

Christiancy J. did not sit.