text:
    Edson W. Cook vs. Morell Potter.
    In an action on the caso, for negligence, the plaintiff cannot recover unless there was negligence oti the part of the defendant, and freedom from contributory fault on the part of the plaintiff.
    Negligence is a violation of the obligation which enjoins care and caution in what we do, — is che want of such care ad men of onliuaiy prudence would use under similar circum-

      Kalamazoo Circuit,

      May, 1871.

      May & Buck, Attorneys for Plaintiff.

      Severens & JBurrows, Attorneys for Defendant.
   Charge of the Court, by

Brown, J.

Gentlemen of the Jury;

The plaintiff in this action claims that on the evening of the 30th of October, 1869, at the village of Brady, in this county', he had his team — a span of horses — harnessed to a lumber wagon, hitched to a post or rail in the street, the rear end of the wagon extending out into the street, and that while the team were thus standing, the plaintiff rode his horse violently against the wagon, upsetting or partially upsetting the same, and thereby frightening the plaintiff's horses so that they broke away and ran off with the wagon, breaking it and the harness, to the plaintiff’s injury and damage. The plaintiff also claims that by reason of the fright occasioned to his horses, they have been rend.ered less safe and reliable, and that ever since then they have been easily frightened and occasionally break away from their driver, and that by reason of their being thus easily frightened and prone to run, their value is greatly reduced.

It is not contended that there was anything willful on the part of the defendant.

The Court is requested by the attorneys for the defendant to charge you, “ that in order to entitle the plaintiff to recover in an action of this character, where the plaintiff claims aright tore-cover on the ground of the defendant’s negligence, two things must concur: negligence on the'part of the defendant, and freedom from contributory fault on the.part of . the plaintiff.’’ Such I recognize to be the law.

If you find from the evidence that the injury complained of was the result of an accident, not intentional, the defendant is not liable without proof of negligence amounting to want of ordinary care.

By ordinary care . is meant such care as is' generally used in the every day life and conduct of men.

If you find from the evidence that the defendant did not use ordinary care and diligenoe, still if you find that the plaintiff, in the manner in which he left his wagon projecting into thehighway, was guilty of negligence, and that such negligence contributed. to the injury, then you must find for the' defendant.— 22 Wis., 245; 2 Mich., 265.

The greatest negligence on the part of the defendant will not cure the defect of the least negligence on the plaintiff’s part.

“ Unavoidable accident,’’ is not such an. accident as is physically impossible in the nature of things for the defendant to have prevented, but by unavoidable accident is only meant ihat.it was not occasioned by the want of such care as the law holds every Iran bound to exercise. 8 Wend, 472.

No one is responsible for an injury caused purely by unavoidable accident, while he is engaged in a lawful business, even though the injury was the direct consequence of his own act. Shearman & Redfield on Negl., § 5; 2 Camp., 500; 8 Wend., 469; 18 E. C. L.,(2 Chitty) 638; 1 Bing., 215; 21 Wend. 618; 17 Barb., 94.

A difficulty sometimes arises in determining what amounts to negligence. The defendant would be bound to exercise more care in riding through a town in the darkness and where teams were liable to be hitched, than he would be when riding in the ópen country by daylight and where teams were not likely to be met with. 4 Dana, 497.

The best definition of negligence that I have seen, is to be found in the opinion of the Court, in the case of the Tonawanda R. Co. vs. Munger, 5 Den., 255, 267. " Negligence,’’ says the learned Judge, “ is a violation of the obligation which enjoins care and caution in what we do ” And yet, this definition does not give us an idea of the extent and degree of the care and caution we are to use. It has been held, in numerous cases, that when the facts in a case of this character are undisputed, a question of law is raised, and that the Court should decide it. But if negligence is the want of such care as men of ordinary prudence -would use under similar circumstances, it occurs to me that the jury with their experience and observation are quite as well, if not better qualified to judge as to what men of ordinary prudence would do under like circumstances, and I cannot resist the conviction that a jury of farmers who are in the habit of using teams and of observing how others use their teams, are much better qualified than I am, to judge and pass upon the question thus presented.

Now, gentlemen, the damages sustained by the plaintiff in this cause were the result of a combination of circumstances. Take away either of the circumstances, and, so far as we know, the collision would not have occurred. It is important, then, for you to enquire as to each of the circamstahces contributing to the injury,and see who is responsible for such circumstances, and whether the connection of the parties with those circumstances were such as to make them guilty of a fault — and by a fault we mean a dereliction from duty, a deviation from propriety.

It is your duty to consider each of the circumstances directly contributing to the injury complained of, and if you find the defendant.in fault and the plaintiff not in fault, in any respect, then your verdict should be for the plaintiff, for the damages directly and naturally resulting from such acts of the defendant as you find were careless and negligent, such as the breaking of the wagon and harnesss, and if you find that by reason of the wrongful act of the'defendant, the plaintiff’s team' has become and has continued to be liable, apt and accustomed to run away, and in a measure unmanageable, then you should award to the plaintiff as damages on that account whatever the team has been lessened in value by reason of such wrongful act of the defendant.

But, if you should find front the testimony-, that the plaintiff was guilty of a fault in bringing about any of the circnm* stances-without which the injury would not have been occa sioned, he cannot recover. In short, the plaintiff is entitled to recover, if he has shown by a preponderance of evidence that the defendant was negligent and that he, himself, was free from contributory fault. Otherwise he is not.

Terdict for plaintiff.


source: Caselaw Access Project

author: Brown, J.

license: Public Domain

text:
    Alexander Cameron vs. De Witt C. Reed.
    C and K owned adjoining farms. By agreement between them, C was to keep, tip the east part, and R the west part of the division fence. Neither party complied with the agrees spent. R’s cattle broke over the west part of the fence, upon Cs lands. Held, That It was liable to C for damages.

      Kalamazoo Circuit,

      May, 1871,
    This is an action of trespass, and was submitted to the Court on the following stipulation of facts :
    It is hereby stipulated and agreed between the above named parties, by their respective attorneys, that the following is a correct statement of the facts in said cause, and that said cause be submitted to said Court, upon such statement, and the argument of counsel upon the law, at the present term of said Court.
    Statement of Facts.
    The above parties have owned and occupied adjoining lands in the Township of Kalamazoo, in said county, for about four years last past, said lands bein^ enclosed with fences and cultivated by the respective parties. On or about the 15th day of March, 1868, the parties entered into an agreement in writing,^ y which they agreed upon a division of the line or partition fence between their respective fences so occupied and cultivated, and the part of such fence that each should therafter support and maintain, the plaintiff, by said agreement, to support the east part,and the defendant the west part of said division fence from the point agreed upon, and that no part of said partition fence was kept by the parties or either of them, after said division, of the heighth and description required by law.
    That at divers times between the first day of May, 1868, and the commencement of- this suit, the cattle of' the said defendant broke through and over that part of said partition fence assigned to said defendant, by said agreement to be kept in repair, on to the lands of the said plaintiff, and destroyed the grass and grain then and there growing and belonging to said plaintiff, to the amount and value of fourteen dollars and fifty cents.

      G, P. Doan, Attorney for Plaintiff.

      Hawes & Edson, Attorneys for Defendant.
   By the Court,

Brown, J.

Act 179, of the Session Laws of 1861, provides that “ No person shall be entitled to recover any sum of money in any action at law for damages done upon lands by any beast or beasts, unless the partition fences, by which such lands are wholly or in part enclosed, and belonging to such person) or by him to be kept m repair, shall be of the same height and description as is required by the provisions of Com. L., § 605 t. e., four feet and a half high, and in good repair or something equivalent thereto.

How should this statute be construed ?

At common law the ownprs.of beasts are liable for any damages done by them upon the' lands of others; and it is only by statute, prescription or agreement that a defense can be set up.

The language of the statute, above quoted, is very broad, and it is contended that the neglect of the plaintiff to keep up his share of the division fence is a defence to this action — that having failed to comply with the requirements of the law, he is not in a position to ask the aid of the Court in his behalf.

In ¿the case of Aylesworth vs. Harrington et. al., 17 Mich., at page 422, Judge Cooley, in delivering the opinion of the Court, says, in reference to this statute, “ The purpose of its provisions was to compel every person to discharge his duty in regard to partition fences, at the peril of such losses as he might suffer from the depredations committed in consequence of such neglect, by the.beasts of those persons to whom the duty was owing.’’ And at page 424, of the same case, the learned Judge says:— “ It is very evident under these statutory provisions that the duty of an v person to keep up a partition fence, is one created by the statute in favor and for the protection of the adjoining proprietor.”

In this case, Cameron, the plaintiff, was under obligation to keep up his share of the division fence, for the protection of the defendant, lieed, the adjoining proprietor ; and Reed was bound to keep up his share of the fence, for Cameron’s protection. Both parties neglected their duty. But it cannot be said that the negligence of one naturally contributed to the negligence of the other. Each must be held responsible for hisown negligence. The depredations were not committed in conse' quence of the plaintiff’s neglect, but in consequence of the defendant’s neglect. The law imposed no duty upon Cameron to keep up the portion of the fence which the defendant had agreed to keep in repair, and over and through which the cattle passed to Cameron’s land.

Let judgment be entered for the plaintiff for the amount stipulated as damages, to wit, $11 50, with costs to be taxed.


text:
    Ira D. Bixby and Lorenzo Bixby vs. Nicholas B. Rowe, George W. Wallace and Nathan H. Bitely.
    A defective certificate of sale of real estate, upon execution, may be amended by the person making the sale, even after his term of office has expired.

      Van Buren Circuit,

      April, 1871.
    This was an action in assumpsit on promissory note made by defendants.
    Suit commenced by declaration. Personal service on all the defendants. Narr. filed December 24,1867. No appearance by either defendants.
    January term, .1868, default of defendants entered and made absolute, and on the 22d of January, 1868, judgment rendered for plaintiffs for amouqt of note, interest and costs.
    Afterwards the costs were taxed ana execution issued to the Sheriff of Van Burén Co., (Edwin B. Farmer,) and on the 23d day of June, 1868, was levied on lots 7 and 8, block 3, Union Addition to the village of Lawton, Van Burén Co.
    Sale made, August 8, 1868, at 1 o'clock P. M., at the Court House in Paw Paw, and lots bid off by plaintiffs, for amount of judgment, interest and costs of sale.
    Plaintiffs waited the expiration of the fifteen month’s redemption right, ^.nd then, on examination and on taking counsel, found that the Sheriff’s certificate of sale was defective, omitting to state the name of the person to whom the premises were sold, and also the amount for which they were sold.
    A motion is now made by the plaintiffs in behalf of the Sheriff, for an order of the Court, granting to Edwin E. Farmer, late Sheriff, leave to amend his certificate of the sale of said real estate, according to the facts of said sale.
    Motion Ex parte.

   By the Court,

Brown, J.

Can a Sheriff amend his certificate of sale of real estate; and if he can, will the Court permit him to do so, after his term of office has expired and he is no longer holding that office ?

J. W. Brees°, for the motion, contends that it is settled that a Sheriff may amend his certificate of sale of real estate by leave of the Court. 1 Doug. Mich. R., 42. This was an attachment suit and judgment by default, and the defendants movecl to set aside the judgment and all subsequent proceedings, for irregularities, and the Court refused the motion, assigning as one ground therefor that the Sheriff had a right to amend his return in the Circuit Court. 2 C Laws, page 1201, § 4418.

It has been held that a Sheriff may amend his certificate of sale whore he has omitted to describe the parcel sold. 1 Cowen, 430.

He may also strike out a parcel which should not have been sold. 8 Howard’s Pr., 79. A casé in 1 Cowen, 218, gives a form of order of amendment and is very similar to the present case, showing that the late Sheriff may make an amendment by leave of the Court.

The recitals in a Sheriff’s deed are amendable. 13 Wend., 29, and so of variance between the judgment and execution. 4 Wend., 462.

There seems to be abundant authority to the effect that a Sheriff who made the sale or his successor in office may make a deed. 2 C. Laws, page 937, § 3151; 3 Mich., 436; 3 Cowen, 75.

As to when a Sheriff may complete execution process in his hands, see 1 C. L., page 210, § 431; page 207, § 418.

As to re-sale on execution by Sheriff, after he. had gone out of office, see 5 Hill, 228; 4 Barb., 180.

•This motion is made on the part of the plaintiffs in execution, and the question of laches does not arise.

The motion is granted.


text:
    SUGGESTIONS TO LAWYERS.
    By C. R. Brown.
    Read no authority fr&m reports, without first having exam iri'ed the ease so as to be able to state the main facts.
    Read only so much as bears directly upon the point. If the Judge comprehends readily, nothing more .is required. If he does not, all that you read, not bearing directly upon the point, only tends to confuse rather than enlighten.
    Never read án authority to support your position when the Court concurs with you. It is proper to ask, whenver a question arises, if the Court'en.tertains doubts, and upon what particular'points; and while the Judge, in doubtful cases, should not decide without a full hearing, it is considered to be no compromise of that dignity which pertains to the Bench, for the Judge to intimate to counsel the points upon which he. desires argument and authorities. If the Court intimates a desire not to hear you, you may take it for granted your opponent will give the Court the benefit of his researches, if he disagrees with you, and you will then have an opportunity to be heard, if the first impressions of the Judge have been modified or changed.
    Don’t except to rulings which you know are purely discretionary. It is difficult for the Judge,in such case, to determine what motive dictates the exception — whether it is from force of habit, ignorance of the law, or to annoy the Court and lumber up the record.
    One exception upon the same point, and involving the same principle is just as effectual as a dozen. Hence, when a ruling has been made upon a question deemed to be vital, it is difficult to conceive what is to be gained by interposing objection after objection upon the same point.

      Never ask the same question more than twice to the same witness. If he tries to evade your question,the jury and Court can hardly fail to discover it, and will weigh the testimony according to its merits. By pressing even an unwilling witness to an unreasonable extent, jurors are very apt to get the idea that you are trying to persecute, or that you are hard pressed to make out your case.
    The cross-examination of an honest witness should be con. ducted with candor, and the questions put should be directly to the point in issue. A different course of examination is almost sure to prejudice a jury against the attorney, and too often, it is feared, against'his innocent client.
    In the cross-examination of a witness whom you believe to be dishonest, it is well to measure his mental calibre before open. ing your broadside upon him. Too many attorneys take it for granted that they are so much sharper than the witness that they will have no difficulty in exposing his falsehood ; when, in fact, it often happens that the questions put, only serve to point out to the witness any inconsistencies that may have appeared in his testimony in chief, and thus enable him, so to speak, to cover his tracks with fresh falsehoods.
    It is unfortunate for the client when bis counsel, forgetting his duty as an officer of the Court, seeks a petty quarrel with a witness, and when he conceives he has said a sharp thing, or has cornered the witness, to appeal to the jury with a broad triumphant grin, indicative of a degree of self-satisfaction, seeming to say, “ I’ve got him now. Didn’t I do that nice ?” In nine cases out of ten, of this character, the jury, if allowed to answer, would say, “ Yes, you have bulliéd an honest witness into a falsehood. It is unfortunate for the cause of truth, that you have not less cheek and more brains ”
    Some lawyers, if permitted, indulge in cross-bar controversies, and seem t© relish it. It is hardly necessary to remark that suoh a habit should be avoided.
    The habit of making constant objections to the introduction of evidence, without being able to assign any reason for such objections, indicates a desire to suppress the truth, and 9 jury are not slow inng discoverithat fact.

      Iu almost every cause there are many facts important to the issue known to both parties. In such cases it is believed that honest attorneys will not hesitate to admit such facts at the commencement of the trial, and thus save much valuable time and expense.
    The rules of practice, and the rules of evidence, are designed to develop the truth as to matters in controversy between the parties, and when these rules are,urged and their operation invoked to suppress the truth and strangle justice,-it is like stealing “ the livery of Heaven to serve the devil in.”


author: Grier, J.

text:
    Edward W. Ladd vs. The Methodist Episcopal Church of East Saginaw.
    It Í» no ground for the transfer of a cause, under section 3445 of the Compiled Laws, that the Judge of the Circuit Court has been consulted or employed as counsel in the cause, unless such consultation or employment took place before the statuto took effect.

      Saginaw Circuit,

      June, 1871*
    This was a motion to set asidean order of the Circuit Court Commissioner of Saginaw County, transferring the above entitled cause from the Saginaw to the Wayne Circuit. The petition for that purpose was made by the plaintiff to the Commissioner, and as a cause of transfer set forth, “ that Hon. John Moore, the Circuit Judge of said county, has been consulted and employed as counsel in the subject matter to be litigated in said cause, and has since assisted in the trial of said cause.” The application for the transfer was claimed to be based upon section 3445 of the Compiled Laws.

      I. M. & H. P. Smith, for Plaintiff.

      H. Joslin, for Defendant.
   By the Court,

Grier, J.

The statute upon which the order of the Commissioner was founded, is as follows: “ Whenever any civil suit or proceeding shall be pending in any Circuit Court in this State, either on the law or equity side of said Court, in which the J udge of said Court shall he interested as a party, or as a member of any corporation which is a party'to said suit, or has heretofore been consulted or employed in the subject matter to be litigated in said suit, or in which he would be excluded from sifting as a juror, by reason of consanguinity or affiinity to any party to said suit, the s ame may be transferred to some other Circuit Court, in the manner, provided by tnis act.”

By the language of the act referred to the fact that the Judge of the Circuit has been consulted or employed as counsel, is not a cause for transfer, unless such consultation or employment had taken place before the act took effect. The words used are, “ has heretofore been consulted or employed,” &c., while as to the other causes of transfer named, the term “shall be,” is used, making a clear grammatical distinction between the different causes of transfer. It is not denied by plaintiff’s eouusel that this construction must prevail if the words are construed according to their exact grammatical sense; but it is claimed that no reason exists for such a distinction and that the same necessity exists for a transfer in one case as in the other.

It is a sufficient answer to this position to refer to a few well settled rules of statutory construction :

“ It is a rule of universal application that effect must be given to the words used by the Legislature, if there be no uncertainty or ambiguity in their meaning.” 4 McLean, 463.
Where a law is plain and unambiguous, whether expressed iu general or more limited terms, there is no room left for construction, and a resort to extrinsic circumstances is.not permitted for the purpose of ascertaining the meaning, and in such cases the legislative will must be obeyed.” 9 Pet., 266; 2 Cranch, 358.
“ Where legislative expressions are obscure, courts may give a reasonable interpretation to them, but they have no right to distort those which are clear and intelligible.” 13 Mass., 324.

The construction should be such “ that if possible, no sentence, clause or word, shall be treated as superfluous,- void or insignificant.” 22 Pick., 571; 2 Mich., 138.

Now, to attain the result contended for by'plaintiff, it would be necessary to strike out the words, has heretofore been,” and insert in lieu thereof the words, “shall have been,” or “shall be,” a form which it is competent for the Legislature only to exercise.' For the Court to do so would be a clear arrogation of legislative power entirely contrary to the theory of our system of government, and inconsistent with the genius of our republican institutions. The legislative will having been expressed it must be obeyed. It is not for the Court to criticize the reasons of the Legislature, but to ascertain its will, and to give that will effect.

The motion to vacate the order of the Commissioner must bo granted.


author: Patchin, J.

text:
    William Gilbert vs. Delos Showerman et. al.

    Whenever a locality.lose3 its character as a place suitable for a place of residence and becomes essentially a manufacturing neighborhood, where the business generally carried on is hostile to and inconsistent with its uso as a place of residence, a court of equity will not interfere to prevent the carrying on of the business of manufacturing, even though the trembling motion and noise thereby occasioned, renders it almost impossible to use adjoining premises as a dwelling.

      Wayne Circuit,
    July, 1871.

      Ward & Palmer, for Complainant..

      Moore, cfc Griffin, for Defendants.
   By the Court,

Patchin, J.

This is a bill for an injunction to close a a grist mill situated on Jefferson avenue, in what is known as the Union Block, in the city of Detroit.

The mill was put in an ordinary building, used for the purpose of a store, but with buildings on each side, and upon a foundation separate and distinct from the walls of the buildings.

It is conceded that the complainant has resided over the store next to the mill a number of years before defendants put in the machinery, and while it was being put in, and that he did not make any objection to it, and has not since that time until the bill in this case was filed.

It is claimed on the part of the complainant that the trembling motion and noise caused by running' the mill is so great as to be a nuisance and that it is impossible to use his own premises for the purposes of a dwelling, as he has before the mill was placed there. it is claimed on the part of the defendants that the block is not suitable for dwellings, and that the business of milling as conducted by them, is in keeping with the business carried on in the remainder of the block.

The question involved in the case at bar is, whethar a given locality, having once been used for a certain purpose, can afterwards, and while it is being used by those occupying it in the first instance, be so used by a new comer as to effectually drive out the first occupant, or, in other words, if a locality be first used for purposes of dwellings, must it ever afterwards be occupied for the same purposes, or, vice, versa, if for purposes of manufacturing, must that particular locality be exclusively used for that purpose?

Except as establishing general principles in regard to the subbject, the books can be of but little use.

So much depends upon the circumstances of each case that it is impossiple to lay down any general rule that will apply to all.— That no man can forsee what particular localities in a large city will be used for purposes of residence or otherwise, perhaps will be conceded by all. Any one acquainted with the early history of our own city will concede that business does not remain in particular localities, but is constantly advancing as the city enlarges.

It is quite clear that business suitable to be conducted only in the outskirts of a city, such as cattle yards, ote., must give place to others whenever the particular locality can no longer be called outskirts, but has become a thickly populated portion of the city proper, where it would be conceded in the first instance to bo improper to establish such a class of business. The same rule certainly ought to apply to residences. Whenever a locality loses its character as a place suitable for them and becomes essentially a manufacturing neighborhood, where the business generally carried on is hostile to and inconsistent with its use as a place of residence., the one must give place to the other.

It follows, therefore, that in the ease at bar, residences having generally been superseded by business, the locality can no longer be considered as adapted to any other purposes than business, and the tew domiciles that chance to remain must from the necessities of the case change their locality.

The motion for an injunction must be denied and the bill dismissed with costs.


text:
    Emory O. Briggs vs. John H. Kaufman, Williamson Mason, Isaac W. Willard, Augustus E. Hardee, Warren G. Kinney, Wilson Lee, Albert R. Wildey and Peter Gremps.
    Where a defendant has any relief to pray, beyond what the scope of the complainant’s bill win' furnish him, ho must ñle a cross bill.
    To entitle a defendant to a decree against his co-defendant, a cross bill is necessary.
    Whero premises have been mortgaged, and subsequently parcels of or undivided interests ix* the same lands have been conveyed or incumbered, on a foreclosure of such mortgage th* premises must be sold in the inverse order of such conveyance or incumbrances.

      Van Buren Circuit,
    April, 1871.
    This action was brought to foreclose a mortgage. The facts as shown by the evidence are as follows : On the 10th day of
    October, 1865, Isaac W. Willard and Peter Gremps, two of the defendants, were the owners and tenants in common of the premises described in the mortgage which the complainant seeks to foreclose. On that day, Kaufman, who held a contract for the sale and purchase of the land, took a deed therefor, paying Willard the sum of about $735, and executing a mortgage to Gremps to' secure his share of the purchase money. On the 11th of October, 1865, at 10 o’clock A. M., this mortgage was recorded. The defendant, Mason, advanced the money paid to Willard, and on the 11th of October, 1865, took a deed from Kaufman of an undivided one-half of the premises, which deed was recorded on the same day, at 12 o’clock M.
    For the undivided one-half interest in the premises sold by Kaufman to Mason, Mason was to pay something more than the amount paid to Willard, but how much more does not appear. Whatever the balance was, Mason secured by mortgage to Kaufman, which, Mason swears, has been paid and discharged. When Gremps recorded his mortgage he knew nothing of the conveyance to Mason, but swears that he only expected to get a mortgage on one-half of the land.
    Some time after the execution of the deed from Kaufman to Mason, .Kaufman conveyed an undivided one-fourth interest to the defendant, Hardee, who mortgaged the same to the d «í'tná*at, Lee. Afterwards, and in 1888, Kaufman cony-eyed all the interest he had retained (an undivided one-fourth) to the defendant Warren G. Kinney. Gremps.assigned his mortgage to Briggs after the maturity of the note which it was given to eseure, and this suit is brought to foreclose that mortgage.
    About three months after the execution of the mortgage from Kaufman to Gremps, Mason discovered for the first time that the mortgage was upon ail the land, instead of an undivided one-half.
    The defendant Mason, in his answer, prays that the mortgage shall be declared a lien on the undivided half of the land in which he has no interest; while Lee insists that it should be declared, according to its terms, a lien upon the whole of the land.
    Lee’s solicitor contends that at the time he took a mortgage upon the land, the record showing the Kaufman mortgage to be a lien upon the whole premises, it would now be inequitable to declare it a lien upon the half only, upon which he has since taken a mortgage — that such a decree would destroy or lessen bis security.

      Stephenson & Barnum, Solicitors for Complainant.
    Batch, Smiley & Batch, Solicitors for defendant Mason.

      Upton & Tucker, Solicitors for Hardee and Lee.
   By the Court,

Brown, J.

I think it is quite clear from the testimony, that as between Mason and Gremps, or between Mason and Briggs, who took the assignment of the mortgage, if the pleadings would warrant it, Equity would require that the mortgage be declared a lien upon the undivided half of the premises retained by Kaufman when he deeded to Mason. There is nothing in the testmony of Kinney, Mason or Gemps, showing what, if any knowledge, Hardee or Lee had as to the equities between Mason and Gremps.

On the 20th of April,. 1871, a stipulation closing proofs was filed, signed by Stephenson & Barnum, for the complainant, Upton & Tucker, for the defendant Lee, and Balch, Smiley & Balch, for the defendant Mason. Subsequently the solicitors for the complainant consented to permit the defendant Lee, to put in further testimony, which was accordingly taken. Mason was not a party to this latter stipulation, and hence could not 'be affected by this testimony,

Lee insists that the maxim “ Lege» vigilantibus nondormientibus subveniunt,” should be applied to the' defendant Mason, and himself — that Mason having slept upon his rights is estopped from asking relief from the mortgage as it appears of reeord, since such relief would prejudice his (Lee’s) ^rights under the Hardee mortgage.

The relief asked for by the defendant Mason, involves the necessity of a litigation between him and his co-defendants. Under our system of equity practice, not requiring defendants to serve upon their co-defendants notices of their pleadings and proceedings,it is difficult to perceive how a decree can properly be made in favor of one defendant against his co-defendant.

The defendant Mason, asks substantially, that the Kaufman mortgage be corrected to correspond with the original intent of the parties. Now it is a well settled rule that “ a defendant canno pray anything, in his answer, except to he dismissed the Court,” and “if he has any relief to pray, or discovery to seek, he must do so by a bill of his own, which is called a crossbill. 2 Barb. Ch. Pr, 126; Lube’s Eq. Pl., 39.

A cross bill is used to settle conflicting claims between co-defendants, which it is found necessary to adjust before a complete decree can be made upon the subject matter of the original suit and the rights of the parties therein.” 2 Barb. Ch.Pr., 127; Muf. Eq. Pl., 81; and “a cross .-bill is necessary to enable a defendant to have a decree against a co-defendant.” Talbot vs. McGee,4 Monroe. 379.

In the case of Pattison et. al. vs. Hull et. al., 9 Cowen, 747, it-was held that a-cross bill is always necessary where the defendant is en titled to some positive relief beyond what the scope of the complainant’s bill will afford him.

Under the state of the pleadings in this case no decree can be made discharging the lands of Mason from the lien of the Kaufman mortgage. The case must be disposed of by the well settled rule in reference to the marshalling of assets and securities. It must be referred to a commissioner to report the amount due on the mortgage, and on the coming in of that report a decree must be entered for the payment of the sum found due, and in default of such payment that the premises be sold in the inverse order of alienation.

The answer of Mason prays his premises be decreed discharged from the lien of the Kaufman mortgage. This cannot be done. It also prays that the lands be sold in the inverse order of alienation and incumbrance. Such a prayer is not for affirmative relief, nor does it seek to abridge the complainant’s rights. The order in which the premises are sold cannot affect him.

In the case of Cooper vs. Byxley, 13 Mich., at page 474, Campbell, J., in delivering the opinion of the Court, says: “ It has always been understood to be the settled law of this State that, where mortgaged premises are conveyed or incumbered in parcels they are upon a foreclosure, to be sold in the inverse order of such conveyances or incumbrances, unless the mortgagee will be prejudiced by having the property sold in parcels.” The reason assigned in the books for this rule is, that where one is owing a debt, his own property should be held to discharge that debt, before taking the property of his grantee. And this equity having arisen in favor of the first purchaser, must remain in his favor against any subsequent equities of other parties derived from his grantor. The reason of the rule applies with equal force where undivided interests are conveyed or incumbered as when separate parcels are conveyed or incumbered. For authorities on the question of marshalling securities, see Mason vs. Payne, Walker's Ch. R., 459; Caruthers vs. Hall, 10 Mich., 40; James vs. Brown, 11 Id., 25; Cooper vs. Byxley et. al., 13 Id., 463; 1 Story’s Eq. Jur., § 633; Howard Ins. Co. vs. Halsey, 4 Sandf., 566; 8 N. Y., 271; Chapman vs. West, 17 Id., 125; La Forge Ins. Co., vs. Bell, 22 Barb., 271; Commermercial Bank vs. Reserve Bank, 11 Ohio, 444; Guion vs. Knapp, 6 Paige, 35; Grosvenor vs. Lynch, 2 Id., 300; Stuyvesant vs. Hale, 2 Barb. Ch. R., 151; Ayers vs. Husted, 15 Conn., 504; Hasting's Case, 10 Watts, 303; Shannon vs. Marsellis, 1 N. J. Ch., 413; Wickoff vs. Davis, 3 Green. Ch., 224.

Let it be referred to a commissioner to compute the amount due, and on the coming in of his report, take a decree direotiug a sale of the mortgaged premises, in default of payment, in the order I have indicated, governed by the abstract of title submitted in evidence, and selling so much of the premises as shall be necessary to satisfy the mortgage with costs of foreclosure and sale.


author: Brown, -J.

text:
    Jean O’Hara vs. Michael McEnny.
    1. A writ of attaclunent Issued from a Justice’s Court must be served by seizing: the goods of the debtor and by leaving a copv of the writ aud inventory with the defendant, if he can be found in the county; if not so found, such copies must.be left-at his last place of residence if there bo any such place in the couuty, and if not, then by leaving the same with any person in whose possession the goods may be found; and unless the copies are served in one or the other of the modes indicated, the Court acquires no jurisdiction over the de feudant»
    2. Whore in an attachment proceeding the goods were seized, but no such service was made as to give the Court jurisdiction ovor the person of the defendant, and on the return of tho writ the Justice continued the cause to a future day, and the defendant appeared before the Justice prior to the adjourned day and demanded trial, Held, that such appearance vías a waiver of service of process, and th it the defendant, thereby subjected his person to the jurisdiction of the Justice.

      Washtenaw Circuit,

      March, 1871.
    This case comes up from Justice’s Court on certiorari.

    The defeudant in error sued out a writ of attachment against the goods aud etiattels of the plaintiff in error. The Constable who executed the writ made the following return :
    “ By virtue of the within attachment, t, Orin A. Wait, on the 27th day of June, 1870, seized the goods aud chattels of the defendant, meutioued iu the inventory, of which the annexed is a copy; and I further return that no one could be found in whose possession the said goods, aud chattels Wete, and that no person could be found at the last place of residence of the within named defendant with whom to leave a copy of the writ and inventory hereto annexed.
    Dated July 8th, 1870. O. A. WAIT,
    Deputy Sheriff.”
    •The writ was returnable July 8th, 1870. a$ one o’clock P. M.,at which time the plaintiff, by his attorney, appeared and filed his declaration, and thereupon, the defendant not appearing, the Justice Entered an drier adjo'ttrítfti-g tbb Viíúsé thrill the líZtH rff Witgáfy
      1870, at one o’clock P. M. July 26, 1871, the defendant, by A. E. Hewett, entered his appearance and requested a trial, pursuant to § 3685, C. L., which provides that, “If the attachment shall not bo personally served upon any of the defendants, and none of the defendants shall appear on the return day thereof, the Justice shall continue the cause for not less than thirty, and not exceeding ninety days; and in such case, ho hearing shall be had or judgment rendered thereon, 'until the expiration of that time, unless the defendant shall sooner appear and request, a trial; in which case the Justice shall appoint a day for the trial of such suit, and cause notice thereof to be given to the plaintiff.”
    The appearance of the defendant was in writing, addressed to the Justice, notifying him of his, Hewett’s retainer, and demanding an immediate trial. JSTo question is raised as to Hewett’s authority to appear for the defendant. On filing the defendant’s notice and demand for trial, the Justice notified the parties that the cause would be tried July 28th, 1870, at one o’clock P. M. July 28th, the case was called, and the plaintiff appeared by his attorney, Gr. B. Palmer, and the defendant by his attorney, A. E. Hewett, who moved to have the cause dismissed, assigning as grounds for his motion, the following:
    “ 1. The officer’s return on the original writ does not show that the writ was ever served on the defendant, either personally or otherwise, as per sections 27 and 28, of chapter 117, of the Compiled Laws oí Michigan.
    “ 2. That the writ oí attachment was never served on the defendant personally, nor was it left at the last place of residence of the defendant, nor was it left with the person in whose possession the goods were found, but that the copy of said writ was delivered over to the Justice by the officer whose duty it was to serve said writ.”
    The motion was overruled, and on motion of the plaintiff’s attorney the cause was adjourned until the 12th of August next following. August 12th the plaintiff appeared, and defendant not appearing, plaintiff proceeded to prove his claim, and took judgment for $60 and costs.

      The refusal of the Justice to dismiss the cause for want of jurisdiction is assigned as error.

      A. E. Ilewett, for Plaintiff in Error.

      G. R. Palmer, for Defendant in Error.
   By the Court,

Brown, -J.

The statute requires the officer serving the attachment to serve a copy of the writ and inventory upon the defendant if he can be found in the county; if not so found, to leave such copies at the last place of residence •f the defendant, if there be any such place in the county, and if not, then by'leaving the same with any person in whose possession the goods may be found. O. L., § § 3679, 3680.

If the defendant could be found in the county it was the duty of the officer to make personal servive; if he could not be so found that fact should appear in the return. The return shows, by implication at least, that there was such a place as defendant’s last place of residence within the county. If then personal service could not be had by reason of the defendant’s absence, it was the duty of the officer to have left certified copies of the writ and inventory at such last place of residence ; and the. fact that he could find no person there with whom to leave his papers is no excuse for a non-compliance with the requirements of the statute.

It is clear that the service of these certified copies, in one or the other of the modes required by law, is íequisite to constitute a complete and' perfect service of the attachment. 2 Wait's Law & Prac., (2d Ed.,) 174. And as there was no personal or substituted service, no jurisdiction was acquired over the person of the defendant by virtue of any act of the officer who attempted to serve the process.

The defendant, by his authorized attorney, caused his appearance to be entered, pursuant to the provisions of § 3685, C. L., and demanded a trial. The plaintiff had already filed his declaration. If the appearance of the defendant was a general appearance he thereby subjected his person to the jurisdiction of the Court. It is well settled that all appearances are to be taken as general, unless at the time of entering such appearance, the party expressly specifies his appearance to he for some special purpose other than for contesting the cause on its merits. Here the defendant appeared and demanded a trial, thereby presenting an issue on the merits. Whether such appearance conferred jurisdiction over the property of the defendant is quite another question, arid one I am not now asked to decide. See Watt vs. Willett, 2 Hilt., 212; and see contra, 15 Ohio, 435.

The Justice was not called upon to order the discharge of the property, but to dismiss the cause. The defendant, having subjected his person to the jurisdiction of the Justice, his motion came too late.

The judgment of the Court below must be affirmed with costs.


author: Broavn, J.,

text:
    Cecil D. Grimes vs. Ebenezer D. Howard.
    1. Whwe a person contracts to do certain work and furnish materials, and abandons his contract without fault of the other party, he will not be permitted, in a suit on a quantum meruit for his services and materials to recover a sum exceeding the contract pr'co. In such case the damages to which he is entitled, is the value of .the work done and materials furnished, not exceeding the contract price, less the cost of completing the work and any damages the defendant may have sustained by reason of such failure.
    2. Where such contract is abandoned through the fault of the employer, the employee may recover the value of his services and materials; and in determining the value of such materials and labor the contract of the parties may be considered, though such contract is not, necessarily, conclusive.

      Kalamazoo Circuit,
    May, 1871.
    Appleton & Bills entered into a contract with the defendant to do certain work upon and to furnish certain materials for a dwelling house to be erected for the defendant at a stipulated price. Before completing the work Appleton & Bills quit the job, claiming that the defendant failed to comply with his part of the contract; also claiming that the contract was mutually rescinded, and thereupon assigned ther claim for their work and labor, and materials they had furnished, to the plaintiff, Grimes.
    The defendant claimed that he had paid a just bind fair sum for all the labor and materials furnished, and that the contractors abandaned the contract without just cause.

      Hawes & Eclson, Attorneys for Plaintiff.

      Arthur Hrown, Attorney for Defendant.
   Broavn, J.,

instructed the jury that Avhere a party undertakes to perform a certain amount of labor, and through, his own fault abandonstheeontract before its completion, he may recover on a quantum meruit — as much as he deserves. And in determining how much he deserves, we should consider how much, the party not in fault has been damaged by the default of the plaintiff, and whether he has been benefitted notwithstanding the default. In such cass the plaintiff is not in any event to recover to exceed the contract price, and in that sense would be limited by it. The law will not permit a party to profit by his own wrong.

Where the employee quits his contract on account of the fault of his employer, he may recover as much -as he deserves for the proportion done. Now what does he deserve ?

In this case the plaintiff does not claim to recover for any profits that he might be entitled to had his assignors completed the work at a profit. What he claims to recover is ,what the labor and materials bestowed upon the building are worth — what in equity defendant would be required to pay, if no contract had been made.— He abandons'the first count in the declaration.

The theory upon which this claim of the plaintiff is predicated is that the original contract was rescinded, and abandoned on account of the short coming of the defendant — on account of his failure to pay his contractors according to the terms of the agreement.

In those cases where the measure of damages is fixed by the contract price, where the action is on a quantum meruit, the reason for the rule is found in the necessity of the case, to prevent injustice. Where a person contracts to do a certain piece of work for a certain price, and finding he has made a poor bargain, abandons it, it would be unjust to permit him to recover the value of his services if such value exceeds his contract. Here he should be held.by his contract. But suppose the contract price exceeds the mere value of the labor, and the contractor abandons the work without just cause. In such case he should not have the contarct price, hut merely the yalue of his services. In determining how much a contractor is entitled to, where he'brings an action to recover the value of services and materials furnished under a special contract, which he has abandoned on account of the fault of his employer, or which after part performance, has been rescinded by the mutual consent of the parties, it is competent for the jury to consider the terms of the contract, how much has been done under it, and how much remains to be done as bearing upon the question of the value of what has been done and performed.

The terms agreed upon, the price to be paid, the amount of labor done and materials furnished, and the amount undone and unfurnished may all be considered as tending to show how much the plaintiff in such case should recover. What the parties agreed upon at the time of entering into the contract, is to be taken as evidence of their judgment at a time when both parties may be presumed to have been acting with reference to their own supposed interests, yet perfectly agreeing as to what justice in the premises would' be. The evidence of such a meeting of the minds of the parties is certainly as competent to be considered by the jury as is their estimates and opinions expressed after a disagreement has arisen, and their sense of exact justice may have been somewhat stimulated'by a resort to the Court to settle the matter in difference between them. I do not say that the facts just suggested are to be deemed the conclusive test in arriving at what the plaintiff should have if entitled to recover. But you are to consider these facts in connection with the other testimony in th’e case in determiningthe question of the value of the services and materials furnished by the contractors.

If you should find that the work was discontinued through the default of the contractors, then the measure of damages to which they .or their assignee is entitled, would be the value of the work and materials, not exceeding the contract price, less the cost of completing the work and any damages the defendant may have sustained by veason of such abandonment or discontinuance.

[So much only of the charge is given as bears upon the question ¿Í 'damages.]


text:
    The People vs. William O’Hare, Joseph Forney and Lewis Waterbury.
    After the trial has actually commenced, the Court has no power to order that the names of ad ditional witnesses, known before the trial, may be endorsed upon the information.

      Bay Circuit,

      May, 1871.

      C H. Denison, Prosecuting. Attorney., for People.

      A. McDonell, A. C. Maxwell and Isaac JUarston, for Defendants.
   By the Court,

Grier, J.

After the trial of defendants on a charge of grand larceny had commenced and after several witnesses on behalf of the prosecution, whose names had been properly endorsed on the information, had been sworn, the Prosecuting Attorney asked leave to endorse upon the information the names of additional witnesses. It appeared that the witnesses were known to the Prosecuting Attorney before the trial, but through inadvertence were omitted. The application is opposed by the attorneys for defendants.

The statute upon the subject provides as follows: All informations shall be filed during term, in the court having jurisdiction of the offence specified therein by the Prosecuting Attorney of the proper county as informant; he shall subscribe his name thereto, and endorse thereon the names of the witnesses known to him at the ■time of filing the same; and at such time before the trial of any case as the Court may, by rule or otherwise, prescribe,- he shall also endorse thereon the names of such other witnesses as shall then be known to him.”

By this .statute it is clearly intended that the names of witnesses known to the Prosecuting Attorney before the filing of the information, must be endorsed thereon before such filing; and that at any time before the trial, he shall endorse the names of such witnesses as shall have become known to him after the filing of the information. But the statute is silent as to what shall be done in case any witness©» shall be discovered after the commencement of the trial.— But the ease at bar is clearly within the provisions of the statute. It was meant for the protection of the accused, and was therefore mandatory. To hold that it is within the discretion of the Court to allow the names of witnesses known before the trial, to be endorsed after the commencement of the trial,would ne to declare that the statute is merely directory. Such a doctrine would be dangerous, and would tend to overthrow the safeguards thrown around the accused by the policy of our laws. In this case the names.of the witnesses were known to the Prosecuting Attorney before the trial, and it was the intent of the statute to compel him to make that knowledge known to defendant, in the manner designated; before the trial, and thus prepare him for trial. Of course the statute does not apply to the ease of rebutting witnesses.

The application must be denied, the Court having no discretionary power in the case.


author: By the Court, Higby, J.

text:
    Thales L. Buck vs. Madison Miller.
    Under Sec. 5537 of the Compiled Laws, as amended by the act of 1871, (Laws of 1871, pagó 192,) the plaintiff, in on action upon contract for the Recovery of damages, is not entitled to costs unless the damages recovered by him exceed$100 — bnt the defendant is in such case, under Sec.56C0, G. L., entitled to costs against the plaintiff.

      Washtenaw Circuit.

    May, 1871.
    This was an action upon contract commenced in this Court for the recovery of damages — the plaintiff’s claim exceeding $300. On the trial the plaintiff recovered $80 77 damages. The plaintiff moves for final judgment for that amount and his costs of suit, ba.sing his claim for costs on the 4th subdivision of Sec. 5597, of the Compiled Laics, as amended by the act approved April 17, 1871, (Laws of 1871, patges 192, 193 )
    The defendant also moves for judgment for costs, on the ground that the damages recovered by the plaintiff are less than $100.

      C. Joslin, for Plaintiff.

      IL. J. Bealces, for Defendant.
   By the Court, Higby, J.

By the section referred to, as amended, it is enacted in substance, that if the plaintiff recover judgment he shall recover his costs : “ Fourth, in all actions-of replevin, and in all actions for the recovery of any debt or damages or for the recovery of penalties or forfeitures, in all cases where the Court has exclusive or concurrent jurisdiction.”

It is claimed in behalf of the plaintiff, that as the Court had ju_ risdisdiction of'this cause, and as it was for the recovery of damages and the plaintiff recovered a judgment, he is entitled to costs.

The jurisdiction of the Court is not disputed. It is well settled in this State, that in an action of this nature, the tefet of jurisdiction is the amount claimed by the plaintiff in hi's writ or declaration, and not the amount recovered on the trial. Strong vs. Daniels, 3 Mich., 466; Inkster vs. Carver, 16 Id., 484; Merrill vs. Butler, 18 Id., 294.

If then we consider the words, “ exclusive or concurrent jurisdiction,” as used in this (4th) subdivision, as referring to the action itself and the authority of the Court to try it and render judgment in it, the plaintiff’s claim must inevitably prevail.

But is that the sense in which those words were there used ?— Does this construction lead to the result which was manifestly intended by the Legislature ? If so, and it was intended that the plaintiff should recover costs in all actions for the recovery of damages in which he may recover judgment, without regard to the amount, the last clause of said 4th subdivision is useless. Such inr tention would have been better expressed without it. The plain reading, then, would have been, “ if the plaintiff recover judgment he shall recover his costs: Fourth, in all actions of replevin, and in all actions for the recovery of any debt or damages, or for the recovery of penalties or forfeitures,’’ and there would have been no room for construction. Such being the intention, therefore, the clause “ in all oases where the Court has exclusive or concurrent jurisdiction,” is not only useless as before stated, but worse than useless, because it tends to render obscure a meaning which without it would be dear and certain.

This would not be all. By such construction, the filth subdivision of the same section is rendered nugatory This subdivision provides for the recovery of costs by the plaintiff, “ in all cases where the plaintiff shall recover less than $100, if it ad-pear that his claim as established at the trial exceeded $100 and was reduced by set-off” Set-offs caa only be allowed in actions upon judgment, or contract for the recovery of debt or damages, (61 L., Sec. 4180;) and if by this 4th subdivision the plaintiff is to recover his costs in such an action whenever he.recovers judgment, without regard to .the amount, then it is.immaterial whether his claim established at the trial was reduced by set-off or not, and the 5th subdivision may better have been omitted.

Now it isa well settled rule tbat statutes must be so construed as .to give effect to every part. One part must not be so construed, as to render another part' nugatory or of no effect. — - The same rule applies to words in the construction of a statute. People vs. Burns, 5 Mich., 114. Some other construction of this statute, therefore, must be sought for — one which will harmonize and give effect to all its parts.

By the Constitution, (Sec. 18, Art. 6,) it is provided as follows: 11 In civil cases Justices of the Peace shall have exclusive jurisdiction to the amount of $100, and concurrent jurisdiction to the amount of $300,. with such restrictions as may be provided by law.” See. 1, of the Justice’s Act, restricts their,' concurrent jurisdiction to actions upon contract. The' juiistbSfrton of the Circuit Court is exclusive or concurrcut in all civil actions except as jurisdiction is given to Justiees of the Peace.

Although the Supreme Court has wisely held that the amouut in controversy, and not the sum recovered on the trial, is the test by which the Court is to determine its jurisdiction or right to try a suit and recover judgment therein, yet the Legislature in an act pro-. viding for and regulating costs merely, may have used the word" jurisdiction,” in a very different sense. Costs are an incident to a judgment already rendered, and a person drafting such an act and having iu view the constitutional provision before quoted, would naturally have reference to the sum recovered, rather thau theWaiw which had been the subject of litigation. I think the word should bo so applied in this instance. The last clause of said 4th subdivision, in all cases where the Court has exclusive or concurrent jurisdiction,” are words of restriction, designed to limit the general effect of. the subdivision, which, without them, would give the plaintiff costs in all cases, in which he might recover a judgment, without regard to the amount; the effect being to limit the plaintiff's right to costs, in the class of actions named, to those cases where the amount recovered by him shall exceed the sum named in the Constitution in defining the exclusive jurisdiction of Justices of the Peace.

In this way only can full effect be given to the statute, (See. 5597,) in all its parts. And" in this way only can effect he given to that part of Sec. 5,600, of the samé chapter, C. A., .which provides that if the plaintiff recover judgment, but not enough to entitle him to costs, the defendant shall have costs. There would be .no case in which this provision could be applied if the plaintiff were to have costs in all cases in which he may recover judgment, without reference to the amount.

I am therefore of opinion that the defendant is entitled to judgment for costs.

Judgment must be entered iu fvaor of the plaintiff for the damages recovered by him, and iu favor of the defendant for his costs of suit to be taxed.


author: Upson, J.:

text:
    Richard Barnard vs. Wm. Savier and Geo. W. Beisel, Executors, &c., of Geo. Dixon, Deceased.
    1. Although in Chancery the party who fails must, prima facie, pay costs, yot a very broad discretion belongs to the Court in regard to costs, and the right to them is not a necessary consequence of the relief prayed for ¿and obtained ; and in many cases, equity grants the relief prayed for upon condition of paying costs, or in some cases without allowing costs to oither party.
    2. In some cases as of mortgages or other incumbrances having a specific lion upon property, where the owner comes to relieve the estate from the incumbrances which he put upon it or thoseundcr whom he claims, the person having that.^cumbrance is not to be put to expense with regard to that proceeding, and so long as lío' acts reasonably, as mortgagee, to that extent he is to be indemnified.
    3. But where the Court considers the mortgagee guilty of any misconduct, in regard to the suit or the subject of it, ho will not be entitled to costs,

      4c. Executors, administrators, ¿c., instituting or defending suits against strangers to their trusts, in those capacities, arc subject to th e same rules as to costs, as they would he if they were sueing or defending in their owq rights.

      St. Joseph Circuit,

      May, 1871.

      This is a bill to have a certain mortgage decreed to be satisfied and discharged. The mortgage was originally given to George Dixon, more than twenty years before the filing of the bill, and the complainant claims to hold the land through a chain of title derived by subsequent conveyances from the mortgagor and his grantees.— The mortgage was duly recorded in the office of the Register of Reeds for St. Joseph County, but the mortgage itself, and the bond or note accompanying the same, complainant alleges is not to be found, and he claims that the mortgage is presumed to have been paid, and that the mortgage and note or bond accompanying the same has been lost or destroyed.
    The executors in their answer deny all knowledge of any payment of the mortgage debt, and any knowledge of the mortgage itself, further than is shown by the record, and allege that they have searched the papers of the decedent, but cannot find the mortgage or any account whatever relating to the same, and are not willing to assume the responsibility of discharging the same, under the circumstances, as they might be held liable to the estate, and allege that from the correct business habits of the deceased, and their intimate knowledge of his business, as his counsellors and advisers in relation to his money matters in his life time, if the mortgage had been paid to him there would have been' some note or memorandum of it on his books or among his papers, or they would have been likely to have known of it, or the deceased would probably have executed and delivered to the person -paying the same, a discharge of the mortgage which had not been recorded by the party to whom he delivered it.
    They admit that complainant had applied to them to discharge the mortgage, but that they had declined under the circumstances and for the reasons aforesaid to do so. No specific averment of payment of the mortgage by any one to the mortgagee was averred in the bill, but it appeared from the evidence that the grantor of the complainant within a year or two prior to the death of Dixon, had called upon him in regard to having him go to the Register’s office and discharge it, and Dixon had told him that he would do so in a few days, but it was not convenient for him to do so then, and intimated that the mortgage was paid in full.
    No allegation in regard to this interview was contained in the bill. On the heaving no serious objection was raised to having the mortgage decreed under the evidence to be satisfied and discharged, but each party claimed to be entitled to a decree against the other for costs, and this was the main question in dispute.

      If. II. Riley, Solicitor for Complainant.

      Win. Savier, Solicitor for Defendants.
   By the Court.

Upson, J.:

Under our statute, as a general rule, where no special provision is made by law, in Chancery cases, the costs are to be paid by such party as the Court shall direct. 2 Comp. Laws, § 5596, This discretion, of course, is to be exercised in accordance with the established rules and practice of courts of equity. 2 Comp. Laws, § 3475.

Prima facie, the party who fails must pay costs, and it depends on him to show the existence of circumstances in a sufficient degree to displace the prima facie claim of costs. 2 Mad. Ch. Pr., 415; 2 Daniell's Ch. Pr., 1461—2, (3d Ed.;) Saunders vs. Frost, a Pick., 271—2; Clark et. al. vs. Reed et. al., 11 Id., 446—9.

But a very broad discretion belongs to the Court in regard to costs, and the right to costs is not a necessary consequence of the relief prayed for and obtained; there are many cases where equity grants the relief prayed for upon condition of paying costs. 5 Pick., 271, 272; Travis vs. Waters, 12 John’s R., 507; M. E. Church vs. Jaques, 1 J. C. R., 77. Cases of this kind, however, are very limited. 2 Daniell’s Ch. Pr., 1462.

Where both parties are equally innocent and both aro endeavoring to avoid a loss caused by another, costs will not be awarded,to either party as against the other. Pendleton vs. Eaton, 3 J. Ch. R., 69.

So where both parties to a suit in Chancery, claimed what they were not entitled to, and each had succeeded as to a part of the matters in litigation between them, Held, that neither was entitled to costs against the other. Crippen vs. Hermanee, 9 Paige, 211; Saunders vs. Frost, 5 Pick., 260—74.

Executors, administrators and trustees, instituting or defending suits against strangers to their trusts, in these capacities, are subject to the same rules as to costs as they would be if they were sucing or defending in their own right. 2 Daniell's Ch. Pr., 1462, (3d Ed.)

But there are certain cases arising from the character sustained by the party, in which the Court generally gives • the costs to that party whatever may be the result of the suit, and amori^ these cases is that of a mortgagee or other-incumbrancer having a specific lien upon property; the principle of the Court being that when the owner comes to deliver the estate from the incumbrance which he himself had put upon it, or those under whom he claims, the person having that pledge is not to be put to expense with regard to that proceeding, and so long as he acts reasonably as mortgagee to that extent he ought to be indemnified. 2 Daniell’s Ch. Pr., 1466 and note 2; 1 Paige, 48; 4 Id., 527; 5 Pick., 272.

But where the Court considers the mortgagee or incumbrancer guilty of any misconduct in regard to the suit, or the subject of it, he will not be entitled to costs, and in some cases he may be made to pay costs he has occasioned. 2 Dan. Ch. Pr., 1470—1, and eases there cited; 1 Paige, 48; 5 Pick., 259.

But to compel a mortgagee to pay costs there must he postive misconduct on his .part to justify such a visitation upon him. 2 Dan. Ch. Pr., 1472.

The general rule of the Court seems to be that the unsuccessful party, although he may be deprived of his costs never pays them.— 2 Dan. Ch. Pr., 1483.

There are however many cases in which the Court has refrained from awarding costs to be paid by the unsuccessful party, solely from consideration of the peculiar hardship of the individual case. 2 Dan. Ch. Pr., 1482.

And where a plaintiff has slept upon his rights for a great number of gears, and has allowed the defendant to suppose that he would not enforce them, he will frequently although successful, be deprived of his costs. 2 Dan. Ch. Pr., 1478.

In this case the party under whom the complainant claims, has suffered the mortgage to remain of record undischarged for many years, and until after the death of the mortgagee, and the mortgage itself to become lost or destroyed, if the same had been paid by him and taken up, and if he did not take it up on payment, he has not preserved any written evidence of its payment. Had he preserved the mortgage, or the bond or note accompanying the same, and had he during the life time of the mortgagee seen fit to proceed under § 2763, 2 Comp. Laws, or since his death, under Act 102, of 1867, he might have compelled a discharge of the mortgage without resorting to a Court of Chancery, but in each instance he would have to pay or offer to pay the costs of th'e discharge.

But the executors of the mortgagee’by putting in their answer, virtually denying the payment, and contesting the right of the complainant to a discharge of the mortgage, have compelled the complainant to go into full proof of his allegations, and to bring the case on regularly to a hearing on pleadings and proofs, thus adding to the costs and expenses of the ’ proceeding unnecessarily, and it appears they were called upon to give a discharge of the mortgage before suit was commenced. Under these circumstances, therefore, although they :stand in the place of, and represent the mortgagee, and deemed it their duty to protect themselves by not éxecuting a discharge, we do not think they are entitled to recóyer their costs as against the complainant. Nor do we think,under:the facts, that’ the complainant is entitled to recover his costs as against them.

Let the decree for the satisfaction of the mortgage be entered, without allowing costs to either party.


author: Upson, J.—

text:
    Wm. B. Paddock vs. Rufus Kibbe, and Rufus Kibbe vs. Wm. B. Paddock.
    A commenced a suits in assumpsit, in Justice’s Court, against B, February 11,1871, returnable February 20,1871, which was duly served, and on the return day parties appeared, and by consent cause was adjourned without putting in any pleadings, until the 15th of March, 1871.
    On the 20th of February, 1871, B commenced a suit in assumpsit against A, before another Justice, returnable February 27th, and on the return day parties appeared and joined issue, the plaintiff declaring in the common counts in assumpsit, and defendant pleading the general issue only, and cause adjourned to the 28th of March, 1871.
    March 15th, 1871, parties in first'suit appeared and joined issue, plaintiff declaring in the common counts in assumpsit, and defendant pleading general issue only, and trial had and judgment for plaintiff, for $17 67 damages, and $3 27 costs of suit. March 28th, 1871, second s.uit tried, and judgment for plaintiff, for $25 damages, and $4 30 costs, field, notwithstanding \ 3728, C. L., each plaintiff properly had judgment for costs.

      Branch Circuit,

      June, 1871.
    On the 11th of February, 1871, Paddock suéd out a summons against Kibbe, in assumpsit, before a Justice of the Peace, returnable February 20,1871, which was duly served and returned, andón the return day the parties appeared and by consent, adjourned the suit without putting inany pleadings, until the 15th of March, on which day the parties again appeared and' joined issue, the plaintiff declaring on the common counts, and the defendant pleading the general issue, and the eause was then tried and judgjnent rendered for plaintiff against defendant, for $17 67 damages, and $3 27 costs of suit. On the 20th of February, 1871, Kibbe sued out a summons before another Justice of the 'Peace, against Paddock, in assumpsit, returnable February 27th, which was duly served and returned, and on the return day the parties appeared and joined issue, the plaintiff declaring on the common counts, the defendant pleading the general issue, and the cause was adjourned to March.'28th, when trial was had and judgment rendered in favor of Kibbe, plaintiff, against Paddock, for $25 damages, and $4 30 costs of suit.
    Each party now claims that under § 3728, 2 Gomp. Laws, the other was not entitled to costs, the plaintiff in the first suit claiming that he was entitled to costs in each case, and the defendant in the first suit claiming the same for himself in each suit.
    The question -was submitted to the Court on a written stipulation, signed by the parties, embodying the foregoing facts, to be heard and decided the same as though specially raised before the Court, on appeal, and so specified in the stipulation.

      M. S. Bowen, Attorney for Paddock.

      J. W. Turner, Attorney for Kibbe.
   By the Court,

Upson, J.—

By the statute as it formerly was in the State of Now York, (and perhaps it is so at present,) if a defendant in Justicc’s Court neglected to plead or give notice of any set-off which might have been allowed him on the trial of the cause, he was forever thereafter precluded from maintaining any action to recover the same or any part thereof, and so were his assigns. 2 Cow. Treat., 748.

Our statute in such a case, 2 Comp. Laws, § 3728, only prohibits the party so in default from recovering any costs, in an action' subsequently brought to recover any such claim. But to entitle a defendant to set-off he must give notice of the same at the time of joining issue on a question of fact upon the merits of the cause— 2 Comp. Laws, § 3724—and he must plead his set-off the very first opportunity. Where a plaintiff brought two suits against a defendant, each being commenced at the same time and made returnable on ths same day and hour, the defendant on joining issue in the suit first called and tried, neglected to plead his set-off, and the other being then called, he offered to plead his set-off, but it was held that he was forever barred. 3 John's R., 428; 2 Cow. Treat., 730.

As set-offs can only be allowed in actions founded on demands which could themselves oe the subject of set-off according to law, it follows that until the plaintiff has declared in his action the defendant cannot know whether it will be on such a demand or not. 2 Comp. Laws, § 3723; 13 Wend., 139, 156; 2 Cow. Treat., 736. Besides ho is not required to plead a set-off until the time of joining issue. 2 Comp. L., § 3724. And under the N. Y. statute, to be a bar to a subsequent suit for the set-off, the plea that it was pr ought to have been set off in a former suit must be interposed at the time of joining issue, or it cannot be admitted on the trial. 2 Cow. Treat., 731; 10 John's R., 111, 246, 12 Id., 455.

In neither ot the suits maintained in the stipulation in this cause does it appear that at the time of joining issue, or on the trial of either, was any objection raised by any party, either by plea or otherwise, to the claim of the other party, nor was any set-off set up by either at the time of joining issue, or claimed on the trial.

The plaintiff in the second suit, who was the defendant in the suit first commenced, could not plead a set-off in the first suit until after the plaintiff had declared therein, which he did not do until after issue had been joined in the second suit and whether the burden of pleading, especially this matter, after the, joining of issue in the second suit was thrown upon the plaintiff or defendant in the first suit, when the issue was subsequently joined- therein, neither party availed himself of it, or raised any objections at the trial of either suit founded upon the question or matter now at issue. The issue then in the second suit seems to have been properly joined at the time it was joined and no question was raised growing out of or in reference to it on subsequently joining issue in the first suit,and going to trial, or on the trial of the second suit. The parties thus seem to have elected_to try each case separately on its own merits and not to liave insisted upon these provisions of the statute in relation to costs as affected by the neglect of a party to plead a set-off (§ 3728, 2 G. L.) in a former action; and the Justice in each case in finding for the plaintiff properly rendered judgment in his favor also for costs? and there is no error in either judgment by reason thereof.

In coming to this conclusion I have not seen fit to consider the question whether ' these suits could properly be reviewed in this Court on-a stipulation so made and filed.


author: Higby, J

text:
    Samuel W. Dorr vs. Jeremiah Loucks et. al.

    In an action brought against the owner of dogs, to recover damages for killing and “ worrying” plaintiff’s sheep,founded on Sec. 1645, C. L.y it was held that tho words, “drove, chased and hurried,” used in the plaintiffs declaration, are equivalent to or within the meaning of the word, “worried,” as usedin said section.
    The declaration alleged that the sheep were depasturing on the farm of the plaintiff* and in his possession when the wrong was done. Held, That this was a sufficient allegation that they were put of the enclosure of the defendant.
    The plaintiff is entitled to judgment for double the amount of the verdict and costs, in such case.*
    Costs by said Sec. 1645, limited to $5 00, to which, however, must be added the costs to be allowed to the prevailing party, by the Act of 1869, page 32.

      Washtenaw Circuit,

      February, 1871.

      A. E. Rewctt, for Plaintiff; C. Joslin, of Counsel.
    C?. 'R. Palmer, for Defendants; II. J. Realces, of Counsel.
   By the Court,

Higby, J

—This suit came into this Cofurt by appeal from a Justice of the Peace. Judgment below was for the plaintiff, and defendant appealeu.

The declaration was in trespass, and amongst other things alleged that the defendants, “ with force and arms, and with their dogs, and dogs-which they were keeping, did, contrary to the provisions of section'2, of an act of the Legislature of the State of Michigan, entitled, “ An act for the protection of sheep and other domestic animals,” approved March 28th, 1850, on the farm and premises of the plaintiff, situate in said town of Manchester, drove, chased and hurried the sheep of the said plaintiff, which were then and there in the possession of the plaintiff, depasturing, and being in and upon said farm and premises of the said plaintiff; and then and there with their dogs, and dogs which they were keeping, as aforesaid, killed a large number of said sheep, to wit: eleven sheep, of great value,” &c., and claiming judgment for double the amount of damages, as provided by said statute. Plea — general issue.

On the trial by jury evidence was given tending to show that two sheep were killed by the dogs, and some eight or nine so badly wounded that the plaintiff killed them, considering their lives useless, and that damage was done to the flock by driving and chasing the sheep, variously estimated from a trifling sum to $25 or $30.— The plaintiff recovered a verdict for $33 — the jury being instructed by the Court that they were not at liberty to take into consideration in estimating damages, the wounded sheep, as no such claim was made in the declaration. Applying the verdict to the evidence it was plain that the jury had arrived at the amount 'of their verdict by estimating the two sheep killed at $4 each, and $25 for the injury the flock by driving, chasing and hurrying.

The plaintiff s c .nsel now move for judgment for double tho amount of damages found by the jury and for costs. The defendant’s counsel oppose this and move for a new trial, on the ground that the statute in question doesnot apply to damages caused by driving chasing and hurrying sheep, but for killing, wounding and worrying only, and therefore the damages found by the jury were not of tho eh... cer that could be doubled. That a new trial ought to bo granted because the verdict in part was for damages not specified in the.statute; and being so, the plaintiff was not entitled to recover, there being no evidence tending to show that the dogs were wont to do such mischief. It was also insisted by defendant’s counsel that if judgment shovld be in the plaintiff’s favor, his costs, by tho express terms of said See. 1645, must be limited to $5.

I have stated somewhat fully the questions presented. The conclusions to which I have arrived are briefly as follows :

1. That tho words drove, chased and hurried,” as used in the declaration, are equivalent to, or at least fall within the meaning of the word worrying,” as used in the section referred to. There may be other means of worrying sheep, but I am satisfied that the word as used in the statute embraces all that is expressed by the words in the declaration. The declaration therefore cannot be said to embrace other or different causes of action than such as-were intended by the statute, and being so, it was not necessary to allege or prove that the dogs were wont to do such mischief.

2. The allegation in the declaration that the place where the injury was done was on the farm and premises of the plaintiff, and that the sheep were at the time in the possession of the plaintiff depasturing and being ou said farm, particularly in a pleading in Justice’s Court, is a sufficient averment that the place was , out of the enclosure of the defendants. The proof in the case tending to show that the injury was done out of the enclosure of the defendants, and within that of the plaintiff was clear and uncontradictcd, and after yerdict, if necessary, the plaintiff would be allowed to amend his declaration in that respect.

But I think the averment is sufficient as it is if it is necessary at all in this case. There is doubt whether the provision of this section of the statute in reference to “ travelling the highway or out of the enclosure of the owner” of the dogs does not apply to ■persons only.

The motion for a new trial must be overruled, and judgment must be entered in favor of tbe plaintiff for double the amount of damages found by the jury, and for costs.

A question is raised as to the amount of costs to which the plaintiff is entitled, based on the last clause of said sec. 1645, as follows : But in no. case shall tbe plaintiff recover more than 65 costs.”— Under this provision and without reference to subsequent legislation the amount of costs to which the plaintiff would be entitled is unquestionably limited to 65. The provision is general and unlimited, and applies to suits in the Circuit as well as in Justice’s Courts. — ■ By the express terms, however, of the acts of 1867, amended in 1869, [Laics of 1867, page 83, and 1869, page 32;) the costs there allowed to the prevailing party, are to be in addition to the fees of officers, disbursements and witnesses, as before allowed by law.

These acts make no exceptions, and apply as well to suits brought under said See. 1645, as to others. Costs in this case must bo limited to 65, with such additions thereto as the said act of 1869 allows to the prevailing party.


author: Upson, J.

text:
    Wilder vs. Lyman et. al.

    1. Pleadings in Chancery must be actually filed and served within the time required by tho rules of the Court. If served upon the adverse party or his.solicitor without having been filed, such service is irregular.

      '¿. In such case, where an order¿wo confuso had been entered, no answer having been filed, a motion to set aside the order as irregularly entered, denied; no excuse having been given ibr tho neglect, nor any showing of meritorious grounds of defense, nor copy of answer presented to be filed.

      St. Joseph Circuit,

      June, 1871.

      Lyman, one of the defendants in this case, applied on motion to the Court, supported by affidavit, for an order to set aside an order taking the bill as confessed against him. lie claimed to have appeared and served a copy of his answer on complainant’s solicitor, within the time to which by stipulation he was entitled in the case, but it appeared that not only was this denied by the opposite party but that no answer had ever been filed in the case, and the defendant had only offered to file answer long after, the time had expired, and some weeks after he claimed to have served copy. No copy of answer was presented for filing nor was any affidavit of merits made on behalf of the defendant. The Register had refused to receive and file the answer when so offered, the order pro confieso having been entered some time previous.

      B. S. Howe. Solicitor; Severer!s & Burrows, of counsel for Com plaiuant.

      G. P. Boane, Solicitor for Defendant.
   By the Court,

Upson, J.

The defendant claims to have the order pro con/esso set aside as to himself, on the alleged ground that it was irregularly entered, for the reason that he had actually appeared and served a copy of his answer on complainant’s solicitor before the time for putting in his answer had expired.

Not only is this denied by the complainant-, but it also appears from the defendants own showing that at the time of the alleged service of copy of his answer the complainant’s solicitor declined to receive it, insisting that it was too late, and that at the time no answer had ever been filed in the cause, and none was ever attempted to be filed therein by the defendant, until several weeks after this) when the Register declined to receive it, the order pro con/esso having been entered prior to the alleged service of copy of the bill. — - The defendant- does not come with an affidavit of meritorious ground of defence and excuse for his neglect in not answering in time, but claims it as a matter of right to have the order pro confesso set aside for irregularity in the entering of it, alleging that he has made no default.

He has, however, failed in his showing to make out such a case, Waiving the question of time in the first instance, it then appears that the attempted service was too defective to avail the defendant anything in this motion. The service of an answer is nof¡ perfect until the original is actually delivered to the proper officer to be filed, and where a pleading is served upon the adverse party or his solicitor, without having been filed, such service is irregular — although if filed on the same day, it has been held sufficient, unless some proceeding had been taken in the meantime to render such subsequent filing improper. 9 Paige, 252; 1 Barb. Ch. R., 496.

The motion must be denied with costs, but without prejudice to the right of defendant to make a new application on a proper showing, as he may be advised.


author: Patokis, J.

text:
    The City of Detroit vs. The Board of Public Works of the City of Detroit, Henry H. Leroy et. al.

    [The questions presented in this case involve the constitutionality of tho act to establish ii Board of Public Works, ior the City of Detroit. As tho Circuit Judge refrains from discussing the points presented, $tho usual digest or head-note is omitted. The case will probably go to the Supreme Court and the decision will appear in the Nisi Prim in due time. — Rep,]

      Wayne Circuity

    July, 1871.
    This is a bill filed to declare unconstitutional and void an act to establish a Board of Public Works in and for the City oí Detroit approved on the 18th day of April 1871, and that the Board therein named, to wit: Henry H. Leroy, William Pur. cell, Deodatus C. Whitwood and Julius Stoll, and the Board.of Public Works thereby intended to be created, may be restrained, prevented and prohibited from exercising or assuming to exercise any powers, authority or jurisdiction or functions intended to be thereby conferred on them, and from interfering or intermeddling in any way with the Board of Water Commissioners, the Board of Sewer Commissioners, the Board of Commissioners upon the Plan of the City, the Board of Commissioners of Grades in and for the City, or from taking possession of any of the public works or other property, or from interfering with the water works, streets, parks or public grounds of the city, and that in tho meantime a temporary injunction may issue as above mentionedand also restraining them from eomtaeneing any action at law or in equity against the City of Detroit, or any of the said Beards above enumerated, or of any of the agents or officers of'said city or of said Boards, to enforce said acts, or any part of the same, until the further order of the Court;
    The first section of the bill provides that the Board shall consist of four persons, who shall be freeholders and qualified electors of said city, taken in equal numbers from the two political parties represented in the Common Council, and that the first Board shall consist of Henry H. Leroy William Purcell, Deodatus G. Whitwood and Julius Stoll.

      J. P. Wkiftem >rc, Theodore Romeyn and Lyman Cochrane, Solicitors for Complainants. ■

      Samuel T. Douglass and J. Logan Chipman, Solicitors for Defendants.
   By the Court,

Patokis, J.

It is provided by section 3 of said act that all vacancies shall be filled by persons of the same political party as his predecessor.

The questions involved in the case at bar cannot be said to lie of importance merely as between the present incumbents and the defendants who now seek to supersede them; for the reason that the former have given entire satisfaction in the 'performance of their several duties, and it is conceded by all that the fatter are eminently qualified to fill the truly responsible position that has been proffered them. Neither are they political, for the two great political parties are equally represented.— They are rather pure questions of law relating to large and important interests, a proper consideration of which would require much more time tnan undrr the present circumstances can possibly be allowed. Iam compelled, therefore, to only briefly notice a very few of the many poiuts that have been made in the ease.

It is claimed on the part of the complainant that the Legislature have no right to designate the members of the m-esent Board.

The Constitution provides, by article 15, section 14, that “ judicial officers of cities and viilages' shall be elected, and all other officers shall be elected or appointed at such time and ii> such manner as the Le-gislxture miy direct.” It is conceded by the defendants that this clause is the one under which the appointments in the case at bar were made, but it is claimed that the Legislature by designating the names of the Board itself virtually declared that that shall be the time and manner of the appointment.

It is insisted on the part of the complainants that authoriiy to merely direct how the election or appointment shall be made gives no power to'go beyond the mere direction ; that until the condition precedent is performed by the Legislature, directing the time and manner of the election or appointment, there can be no power vested anywhere (not even in the Legislature itself) under the Constitution, to consummate the election or appointment.

The Constitution provides by article 15, section 8,jthat the Legislature shall pass no law altering or amending any act of incorporation heretofore granted without the assent of two-thirds of the members elected to each House, excepting municipal corporations.

It is conceded that in the case at bar the bill was not passed by a two-thirds vote.

It is claimed on the part of the complainants that the various Boards sought to be superseded by the defendants are separate and distinct corporations, none of them being municipal in their character, and that, therefore, to affect them the bill in question should have received a two-thirds vote.

The Constitution further provides, by article 18, section 1, that no other than the ordinary constitutional oath, declaration <>r test shall be required as a qualification for any office of public trust.

It is claimed by the complainants that the Legislature, under this clause of the Constitution, had no power to require that the members should be of any particular belief, or be connected with either of the two great parties;

• This provision was undoubtedly intended for good purposes ; and it is quite possible with the view many public officers seeoss to have, that they are elected to serve their political party rather than the public, whose interests they often lose sight of, it may a wise provision were it possible to make such an one under the clause above referred to.

It will be seen that these are grave and important questions and by no means clear in favor of either party.

do not propose to discuss the merits of these several points. or indeed to make any suggestions in regard to them. Were I so disposed, the lime allowed for examination is entirely inadequate.

It is claimed that a temporary injunction, at least, should issue, because of the large interests to be affected by the radical change contemplated by this law, and that such vast and important interests should not be carelessly passed from one to another.

It will perhaps be conceded that the present incumbents would come very far short of theirJ duty to the public, should they deliver up these vast interests without being first fully as. sured by the proper authorities that they had a right so to do, and I apprehend that'the gentlemen composing this Board do not desire to imperil the interests of the city by any action they may take' nd that taking possession of these important trusts with the full assurance that they are sustained by the law and cannot be disturbed or molested, will be much more satisfactory to them, as w^ell as all others interested, than tbe loose and un certain tenure sure to follow a doubtful possession. In view ot these facts I have deemed it my duty to exercise jurisdiction in the case and allow a temporary injunction to issue.

The questions involved can be finally settled in a little less than two months. A delay of so short a time cannot seriously affect any of the parties interested. It must be distinctly understood that no unnecessary delay can be allowed. I will hear counsel as to the extent of the temporary injunction.