author: Campbell J.:

text:
    The People v. Charles Clark.
    An information for a conspiracy to do an unlawful act must set forth the unlaw* ful thing agreed upon, but it need not specify the means to be resorted to for that purpose.
    And therefore an information which charged defendant and a person unknown with having conspired “by divers false pretenses, subtle means and devices to obtain and acquire to themselves of and from one' "W. a sum of money, to wit: the sum of ten dollars, of the moneys of said W., and to cheat and defraud him the said W. thereof” was held sufficient.
    It is not essential to the offense in such case that the cheat designed be by means of a token, writing, or similar device.
    Nor is it necessary that the means should be of any specific character. The crime may be complete notwithstanding the conspirators leave the particular means by which the fraud is to be accomplished to be determined by circumstances.
    Under an information for a conspiracy to defraud, if the conspiracy is proved the case is made out, whether any fraud was committed in pursuance of it or not. It is not essential that the pretenses by which a fraud is accomplished be expressed in words. Falsehood when deliberately acted is the same as spoken falsehood.

      Heard May 2nd.

      Decided June 3d.

    On Exceptions from the Recorder’s Court of Detroit, where defendant was convicted on an information of which the following is a copy:

      “State of Michigan, County of Wayne: January Term, A. D. 1862; Recorder's Court of the City of Detroit.

    In the name of the People of the State of Michigan, I,- David E. Harbaugh, Prosecuting Attorney in and for said county of Wayne, who prosecute for and on behalf of the People of said State in said Court, come now here and give the Court to understand and be informed, that one Charles Clark, and a certain other person to the Prosecuting Attorney, aforesaid, unknown, late of said city, on the 8th day of January, in the year of our Lord one thousand eight hundred and sixty-two, at the said city of Detroit, unlawfully, falsely, deceitfully, and fraudulently, did combine, conspire, confederate, and agree together, by divers false pretences, subtle means and devices, to obtain and acquire to themselves, of and from one John M. Whelpley, a sum of money, to wit, the sum of ten dollars, of the moneys of said John- M. Whelpley, and to cheat and defraud him, the said John M. Whelpley, thereof: The said Charles Clark and the other person, unknown as aforesaid, in pursuance of, and according- to said combination, conspiracy, confederation and agreement between them, as aforesaid had, did, on the 8th day of January, a. d. 1862, at the city of Detroit aforesaid, by said divers false pretences, subtle means and devices, unlawfully, falsely, deceitfully and fraudulently, obtain and acquire to themselves, of and from the saicj John M. Whelpley, and of the moneys, goods and chattels of the said John M. Whelpley, two pieces of current gold coin of the United States of America, each piece of the value of five dollars, with intent to cheat and defraud the said John M. Whelpley thereof, to the great damage of the said Whelpley, and contrary to the form of the statute in such case made and provided, and against the peace and. dignity of the People of the State of Michigan.
    David E; Harbaugh,

      Prosecuting Attorney of Wayne County, Michigan

      J. Patahin & J. L. Chipman for defendant:
    1. The evidence admitted to show that the defendant had not, to the knowledge of the witness, skipped hogs over the Great Western Railway, was improper. Its object was to show he had been guilty of false pretences in stating that he was a hog dealer, and had been to see after shipping- some hogs' at Windsor. This and the other similar testimony was an effort to prove the falsity of what the prisoner said, while in fact is does not relate to any thing he did say.
    2. The Court erred in refusing to charge, that in order to a conviction the jury must find that the defendant used either unlawful means to borrow the money, or that the borrowing itself was illegal. The conspiracy is sought to be established by the means used or by the act done, and the jury must find one or the other unlawful.

      3. The Court erred in refusing to charge that the "cheat” referred to in the indictment is a cheat either at common law or by statute, which requires a false token, writing, &c. — Alderman's case, 4 Mich. 432, and cases cited.

    4. In an indictment for a conspiracy, it is necessary specifically to set forth the intended act, when it has not a common law name to import its nature, with as much precision as would be necessary in an information for the perpetration of it. The information here should set forth the charges with as much certainty as if it were for obtaining money by false pretences. — 5 Barr, 60; 4 Mich. 432.

      5. The indictment does not set forth a conspiracy to do an unlawful act. The pretences, devices, &c., not being particularly stated, must be regarded as omitted, and the terms cheat and defraud do not, ex vi termini, imply an unlawful act which may subject the party to indictment and punishment.

      C. Upson, Attorney General, for the People:
    The evidence which was objected to was proper to show the false character which the prisoner and his accomplice assumed in their transactions with Whelpley, and the lying nature of the representations they made to him, while acting in concert, to obtain from him the money, and, in connection with the other evidence, to show the conspiracy into which they had entered to cheat and defraud him of his money.
    The Court was correct in refusing to charge, that it must appear either that the defendant used unlawful means to borrow the ten dollars, or that the act of borrowing was of itself unlawful. The gist of the offense was the conspiracy charged, and whether the means actually used were lawful or unlawful, or whether any means were used or planned, was immaterial — 2 Bish. Cr. L. §§ 166, 169, to 174; Whart. Cr. L. §§ 2297, 2298; 2 Russ, on Cr. 691, 692; 1 Mich. 216; 4 Mich, 433.

      The information is sufficient: 2 B. & Ald. 204; 5 Q. B. 49; 7 Q. B. 782 ; 9 Q. B. 824; 11 Q. B. 245; 25 E L. & E. 577; 18 E C. L. 205 ; 2 Russ. on Cr. 691, 692; 8 Chit. Cr. L. 951; Whart. Cr. L. § 2297 to 2305; 2 Bish. Cr. L. § 171; 3 Harris, 272; 11 Harris, 355; 5 Harr, & J. 317; 8 S. & R. 420, 422; 1 Dew. 357; 2 Hill S. C. 282; 15 N. H. 396; 25 Vt. 415; 22 Ill. 314; Whart. Prec. 611 and 607, note b, 2d Ed.; Train & Heard Prec. 174; 3 Zab. 44; 2 Mich. 223; 9 Cow. 578; 1 Mich. 216.
   Campbell J.:

The defendant was charged with having conspired with a person unknown, “ by divers false pretences, subtle means and devices, to obtain and acquire to themselves, of and from one John M. Whelpley, a sum of money, to wit, the sum of ten dollars, of the moneys of said John M. Whelpley, and to cheat and defraud him, the said John M. Whelpley, thereof.”

It is claimed that this information is defective in not setting forth any conspiracy within the requirements of law. The principal argument was that, unless the means to be resorted to were set out, the charge is not of any crime, because it is alleged the object alone was not criminal.

There can be no doubt that a conspiracy to do a lawful act is not punishable, unless that act is to be accomplished by unlawful means. In such a case, unless the means are set out, the indictment or -information charging a conspiracy merely to accomplish a lawful thing, would be insufficient; for every criminal charge must show upon its face what criminality is alleged against the defendant, and none can be proved where none is alleged.

It has been settled therefore without. contradiction, that in every indictment for conspiracy the unlawful thing agreed upon must be set forth. If the end be unlawful, that and that only need be alleged; but if the end be lawful, then the unlawful means must appear,

The question then arises, whether it appears upon the face of this information, that what the defendants agreed upon amounted to a criminal conspiracy. This may he very easily tested in the case before ns. It is charged that the agreement was to obtain from Whel'pley, by false pretences, ten dollars, and to cheat and defraud him of it.

Our statutes provide that it shall be a punishable crime to obtain from any person any money or other valuable thing by any false pretence, with intent to defraud or cheat him.— Comp. L, § 5783.

The agreement set up in the information in this case embraces all the elements of the statutory crime, and is therefore an agreement to commit the crime of obtaining money under false pretences. This being the design, and this design itself being criminal if agreed upon by conspirators, whether carried into effect or not, there are no authorities which require any further allegations. If no such act were an indictable offense, there might be room for the argument that the means should be alleged. There may perhaps be some conflict on this subject, as applied to pecuniary frauds, but it is needless to discuss it here, as the means and the end, under our statute, form, when combined, an indictable offense. Nor is it necessary that the means should be of any specific character. The varieties of fraud are innumerable, and when it is agreed to cheat another of his property, we are not bound, in the face of common experience, tó assume that any particular devices must have been agreed to be resorted to, and that any addition to them suggested by the ingenuity of the operators must be presumed beyond the design. It is sufficient for this case if we can conceive it possible for conspirators to leave the particular means by which a fraud is to be accomplished to be determined by circumstances ; and we certainly regard this as not only possible, but very probable in most cases. The rules which govern allegations in indictments for a completed offense, can not have any bearing upon a conspiracy to commit it, where the conspirators are equally chargeable whether they fail or whether they succeed.

We see no defect in. the information.

It .is alleged as error that the Court refused to charge that the cheat referred to in the information must be by means of a token, writing or similar device. We do not think our statute on false pretences susceptible of any such confined construction. It was evidently designed to reach every variety "of pretences.

It was also objected that the Court refused to charge, that it must appear that the defendant used unlawful means to borrow the ten dollars, or that the borrowing was itself unlawful. This was not an indictment for the fraud, but for the conspiracy to defraud. If the conspiracy were proved, the case would be made out, whether any fraud were afterwards committed or not. It is true that a conspiracy is generally proved by inference from the acts of the conspirators. This, however, is not necessarily the case. Had it distinctly appeared from the case before us that there was no other proof here, it may be doubtful even then whether the request would be entirely correct; but as we consider the charge as given as covering the entire ground, the .correctness of the charge as given becomes the only material inquiry concerning the law laid down to the jury. And the remark made by the Court, that the mere telling of lies to obtain property, while not enough to make out an offense, was not a material consideration in the case at bar, may be disposed of in the same way.

It had appeared in the case — or, rather, there was evidence tending to show — that the defendant had induced Whelpley, who had crossed with him from Windsor, to believe that he had just been to Windsor to see about some hogs which he wished to ship, and asked Whelpley to go with him to the office to see about the freight, and why the hogs were not shipped. He had previously asked if Whelpley was going to Chicago, and said he would accompany him. to that place. Defendant took Whelpley to the Merrill Block, where the other alleged conspirator came up and said he had been looking for Clark. Clark asked if he had shipped the hogs, and on being told that he had done so, said that he .would pay the freight, and took out his pocket book and asked if the other could change a hundred dollar bill. This person said he would go up into the office and see. He went up stairs into the Merrill Block, returned and said he could not. Clark asked Whelpley if he could change the bill. He said he could not. Clark then asked Whelpley to- lend him ten dollars, and he would pay him when he got to the depot, where he would get the bill changed. After getting the money, Clark and the other went up stairs for the alleged purpose of getting the bill receipted, asking Whelpley to wait. After waiting a quarter of an hour he left. Other witnesses testified to the suspicious conduct of both the alleged confederates. It was shown there was no office in Merrill Hall rented to any person engaged in shipping hogs. Clark when arrested had $30 in good bills, and a hundred dollar bill on a broken bank. Other evidence appears, and we are not informed by the record whether all that was given was set forth.

If any fraudulent conspiracy existed, it was upon the theory of the prosecution carried out by inducing Whelpley to believe that Clark was here for the legitimate business of sending forward his produce; that he had actually forwarded it; that it was worth enough to have the freight from Windsor amount to ten dollars; that the office was in the Merrill Block where he was going to pay the freight; that the stranger had authority to collect and receipt for it; that Clark had a hundred dollars in one bill which he could and would have changed at the depot tó repay the loan, and that he would immediately accompany Whelpley to the depot where both must go to enter upon their contemplated journey to Chicago. If the jury found any fraudulent pretense — as of course from, their verdict they must have done if they inferred the conspiracy from these acts — the case shows that it was in making Whelpley believe that Clark was a business man who had property in transit to which he was attending, and had a bill of a hundred dollars in his pocket available to repay immediately such a loan as he made. If these pretences were false, and if they actually deceived Whelpley, and were designed to defraud him out of the money he advanced, they amount to misrepresentations of existing and material facts, and come clearly within the mischief of the law. Nor do we think it could make any difference whether they were all expressed in words. Falsehood when deliberately acted is the same as spoken falsehood. The facts relied on for conviction went very far beyond immaterial lies, and also tended to show that both Clark and the stranger were guilty.

The charge of the' Court was as follows:

“The defendant is charged with conspiring and combining with a person, unknown to the People, to defraud one Whelpley, out of a sum of money. To constitute an indictable conspiracy, there must be a combination of two or more persons, by concert of action, to accomplish a criminal or unlawful purpose, or by means, criminal or unlawful, to accomplish a purpose not in itself criminal. The charge here is conspiracy. It is not a charge for obtaining money by false pretences; it is for conspiring and combining with this unknown person, by means of false pretences, to do just what is alleged to have been done that the prisoner is on trial before you. The fact that money was obtained of Whelpley, in the manner related, is offered as evidence of the conspiracy, which is alleged to have been formed before ; and not that this was the conspiracy. If the prosecution is correct in its view of the case, and the getting of the money was the object of the conspiracy, and not the conspiracy itself, to convict you will have to find: That the prisoner and a person unknown to the People, entered into a conspiracy to defraud, by means of false pretences, the witness Whelpley out of his money. The offense was as perfect before the money was obtained, as it was after-wards, if the combination and conspiracy existed, to do what is alleged to have been done, namely, the getting of the money, by means of the unlawful devices, etc., as charged in the information.”

We think there was nothing in this charge which could possibly mislead the jury. It defined the offense properly, and gave the jury , all necessary instruction concerning the character of the acts constituting it.

Some objections were taken to the admissibility of testimony which it becomes necessary to notice. Charles Mc-Cabe, who had sworn that he was a ticket agent of the Great Western Railway at Windsor, was asked whether hia business was such as to give him knowledge of persons who ship hogs on that railway, and whether Clark had ever to his knowledge shipped hogs by it. These questions were objected to, but he was allowed to answer, and did answer, that his business gave him knowledge of persons shipping hogs over the road, and that he did not know of Clark’s shipping any.

We think the testimony admissible. It was competent to prove the non-shipment of hogs from Windsor, by inquiring separately concerning all the channels of transportation. It may have appeared that at that season of the year there was no other outlet from Windsor. If there were other outlets, similar questions to those acquainted with their business were the proper means of proof as to them; and we do not perceive how else such a negative matter could be proved. As no Court in Michigan can judicially know, however strongly its members may suspect, that in midwinter the railway is the only available outlet for freight from Windsor, we can not assume, in the absence of any request to charge, or other reference to the defect, that the prisoner was convicted without proof on this material point.

The same remarks will apply to the evidence offered that no office in the Merrill Block was rented for such purposes as represented by Clark and his associate. The evidence was admissible, and very significant. No question appears on the record whereby its conclusiveness or effect seems to have been involved in any legal argument. We can make no presumption of error where ' error does not appear.

The conviction is good, and the Recorder’s Court must foe instructed to proceed to judgment on it.

The other Justices concurred.


source: Caselaw Access Project

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

license: Public Domain

text:
    Elisha Chamberlain and another v. Benjamin F. Dow and another.
    Where two persons together make a bargain to buy goods of the value of moro than fifty dollars, which is vo5d because not in writing, the subsequent acceptance of the goods hy one without the knowledge or assent of the other, will not amount to a ratification of the void bargain as to both.
    Where such a ba“gain was made hy two persons who had previously made a contract for a co-partnership between themsslves, and before the goods were received the agreement for a co-partnership was rescinded; and it did not appear that the urigi- al bargain for the goods was made hy these persons as partners, or that the sellers knew of their arrangement to become such, it was held that the vendors ot the goods were not entitled to notice of the-dissolution of the partnership. Persons having no knowledge of a partnership ar« net entitled to notice of its dissolution.

      Submitted on briefs April 27th.

      Decided June 6th.

    Error to Genesee Circuit.
    The action was brought hy Dow & Fowler against Chamberlain & Thomas to recover the price of a threshing machine. On the trial in the Court below, the plaintiffs gave in evidence that they, residing and doing business in the State of New York, were partners in the manufacture and sale of threshing machines in the year 1858 ; that Daniel McKercher was then their agent, residing near the city of Flint, Michigan, for the sale of their threshing machines: that in June, 1858, said agent made a bargain Verbally with said defendants, by which said McKercher, for plaintiffs, agreed to sell, and the said defendants to purchase, a threshing machine which McKercher agreed to send for to his said principals, the plaintiffs, and, on delivery thereof to defendants, they were to pay down fifty dollars, one hundred dollars in the following fall, and the balance, being $150, in one year therefrom, and in addition defendants to pay the cost of transporting said machine from New York to Michigan; and McKercher agreed to give defendants an order on the freight agent of the Detroit & Milwaukee R. W. Co., for said machine, and leave the same for said defendants with Jerome Eddy. No note or memorandum in writing was made of this bargain, and no payment made by way of earnest or otherwise. Mc-Kercher, ten or twelve days afterwards, drew an order, directed to the freight agent of the Detroit & Milwaukee Railway Co., at Holley, to whom a threshing machine had been sent by said plaintiffs, ordering the delivery of said machine to said Thomas & Chamberlain; which order was left with said Eddy to be delivered to defendants. It did not appear whether Eddy ever delivered the order to anybody, but the machine was afterwards in the possession of defendant Thomas. In July, 1859, nothing having been paid by defendants for said machine, and the same then being in the possession of said Thomas, Mc-Kercher, who was still agent of plaintiffs, entered into an arrangement with said Thomas and his brother, Henry Thomas, by which they gave their joint note for $100, and delivered it to said McKercher, and agreed to secure by chattel mortgage on said machine the balance claimed by plaintiffs to be due from defendants for the machine; that said McKercher and the Thomases were to meet on a subsequent day, when the mortgage was to be given. The meeting soon thereafter took place, but McKercher insisting on a joint mortgage from said Thomases, and they insisting on giving separate mortgages, each on a half interest in said machine, they separated without any mortgage being given.
    It further appeared that the $100 note was paid by the makers at or about the time of the maturity thereof. Also that McKercher had no directions from plaintiffs to make said arrangement with the Thomases, and plaintiffs had not been informed of it.
    The defendants then gave evidence, showing that there was, in June 1858, a verbal understanding between said defendants that they would purchase a threshing machine of said plaintiffs, through said agent, and operate the same as partners; that before the arrival of said machine, Chamberlain, by agreement with defendant Thomas, paid Thomas six cords of wood to be released from his agreement to purchase and operate said machine with him, which wood was received by Thomas as a satisfactory arrangement; of this arrangement neither the plaintiffs nor their agent had notice; Chamberlain did not receive the order for the machine from said Eddy, nor did he ever see it, nor was he present when said machine was obtained, nor did he have anything to do with getting it from the said freight agent; nor did he ever have possession of said machine, or anything to do with it.
    The defendants below requested the Judge to charge the jury, that the said bargain or understanding between the plaintiffs by their said agent, McKercher, and defendants, was void, because there was no note or memorandum thereof in writing, or payment of any sum, by way of earnest to bind the bargain or otherwise; and that if the jury find that the agreement between defendants to jointly purchase and operate such machine, had been rescinded before delivery of said machine on the order therefor to said defendant Thomas, said verbal agreement did not bind Chamberlain, and such bargain for the sale of said machine was, as to him, void by the Statute of Frauds. But the Judge refused so to charge, and on the contrary charged the jury, that if the defendants purchased the machine in company, and became responsible therefor, that then the receipt of the machine by Thomas would take the case out of the Statute of Frauds, and the sale would thereby become binding on, and valid as to both of said defendants.
    The defendant, Chamberlain, then requested the Judge to charge the jury, that if they should find from the testimony that the said plaintiffs, by their agent, sold the machine, in 1859, to the Thomases, such sale should be regarded as an abandonment and rescisión of the bargain and understanding made in 1858, with the defendants. But the Judge refused so to charge, and instead thereof charged the jury, that if they should find that the plaintiffs sold the machine to the defendants according to the evidence on the part of the plaintiffs, a title to the machine vestid in the defendants, and plaintiffs could not thereafter sell the said machine the second time, and divest- the title of Chamberlain.
    The jury rendered a verdict for plaintiffs, and defendants brought error.

      Sutherland & Miller, for plaintiffs in error:
    The verbal agreement for a sale to Thomas and Chamberlain was void, and there was no such subsequent de ivery and acceptance of the property as was necessary to make a valid sale to both Thomas and Chamberlain. The case shows no subsequent act done by Thomas which purported to be the | act of Chamberlain, or of Thomas and Chamberlain. In the absence of proof it can not be claimed as matter of necessary legal inference that he obtained the order for the machine in the name of both,
    The original purchase being void, Thomas had no authority afterwards to so receive the machine as to bind Chamberlain: — 3 Mich. 322; 1 Comst. 261, 273.

      The defendants were not partners when the void contract was made, nor did they hold themselves out as such. While their contract of partnership was executory, either might refuse to go on, without incurring any liability to third, persons: —10 B. & C. 126; 9 Bing. 113; 6 Bing. 779; 10 M. & W. 131; Gray v. Gibson, 6 Mich.

    It is insisted that the subsequent arrangement by Mc-Kercher with the Thomases, was a rescinding of the first sale, even if confirmed.

      Oscar Aclams, for defendants in error:
    It is not necessary to the validity of an agreement of co-partnership, that it or any note or memorandum of it, should be in writing. Therefore the verbal agreement of defendants to purchase and operate said machine as partners, rendered them such as to the plaintiffs; subject to all the rules governing partners in their dealings with third persons : — Coll. on Part. 2-4.
    Having entered into that relation, and having made the agreement to purchase said machine as partners, each one was bound by the acts of the other, within the scope of their partnership business: and the delivery of the machine to Thomas was in law a delivery to both, as partners, and was sufiioient to take the sale out of the Statute of Frauds, and render it binding upon both: — Coll, on Part. §§195, 384 et seq.

    And they could not escape their liability as co-partners, by a dissolution of the co-partnership, before the delivery of the machine, without giving the plaintiffs express notice of such dissolution.
    The subsequent arrangement of McKercher with the Thomases could not release Chamberlain, for the reason, among others, that McKercher had no authority to make it.
    But laying aside all other considerations, we claim that the written order for the delivery of the machine ■ to Thomas and Chamberlain — it having been made and delivered to a party named by Thomas and Chamberlain themselves, by the express agreement of the parties at the time, and which clearly came into the defendants’ hands, as without it they could not have obtained the machine from the freight agent — was a sufficient memorandum in writing to take the case out of the Statute of Frauds. And further, that the delivery of the order to Eddy, the person appointed by the parties to receive it, was constructively a sufficient delivery of the machine under the Statute of Frauds. See 3 Mich. 822.
   Manning J.:

As joint contractors merely, or as partners, if they were such, the agreement was not binding on Chamberlain and Thomas or either of them, as it was not in writing, and the price of the machine exceeded fifty dollars. The judge charged that if they purchased the machine in company, the receipt of it' afterwards by Thomas took the case out of the Statute of Frauds. By company, we understand the charge of the Court as saying together, or as joint contractors, and not as partners. As joint purchasers neither had power to bind the other by subsequently accepting the machine.

As to partnership, it appears Chamberlain and Thomas on the trial gave evidence of an agreement between them•selves to purchase a threshing machine of Dow & Fowler, and to operate the same as partners; and that before the machine was received by Thomas he had released Chamberlain from the agreement on .the payment of six cords of wood by Chamberlain; and it is argued -the charge is correct on the ground that Dow & Fowler had no notice of the dissolution of the partnership when the machine was received by Thomas. Admitting for the sake of argument all that is claimed for the agreement between Chamberlain and Thomas, that is, that they were partners —the evidence showing only an agreement to become partners, and a termination of the agreement before Thomas received the machine — the charge of the Court makes no mention of, and is not based on a partnership transaction and a want of notice of the dissolution of the partnership. For the reason, we presume, -if there was evidence of a partnership, that there was no evidence the contract was made with Chamberlain and Thomas as partners, by the agent of Dow & Fowler, or that he or they knew of its existence, and were therefore entitled to notice of its dissolution, to warn them against trusting to the acceptance of the machine by Thomas alone if they wished to hold Chamberlain. Persons having no knowledge of a partnership are not entitled to notice of its dissolution.

The judgment must be reversed, with costs, and a new trial ordered.

Christiancy and Campbell JJ. concurred.

Martin Ch. J.:

The defendants in error, through their agent, McKercher, agreed verbally with the plaintiffs in error to sell them a threshing machine for $300 and cost of transportation from New York to Michigan; and that they would give them an order on the freight agent of- the Detroit and Milwaukee Railway Company for said machine, and leave the same with one Eddy. No note or memorandum in writing was made of this agreement, nor money paid by way of earnest; but the agent, ten or twelve days after, drew an order directed to the freight agent of said road, at Holley, to whom a machine had been sent by the defendants in error, ordering its delivery to the plaintiffs in error, and such order was left with Eddy to be delivered to the plaintiffs in error. It did not appear whether Eddy had ever delivered such order to any one, but the machine was afterwards in possession of Thomas, one of the plaintiffs in error.

I can not presume that Thomas obtained possession of the machine, except upon the production and delivery of such order; and if such be the fact, his possession was the possession of Chamberlain, as well as of himself. Unless the agreement had been repudiated before the order was given, • each in receiving it and obtaining the property under it was the agent of the other. Having jointly agreed to purchase, both were bound by delivery to either, if such delivery were made under the contract; and such performance by the plaintiffs in error took the case out from the operation of the Statute of Frauds. The forwarding of the machine by the defendants in error for the purpose of executing the contract, coupled with the delivery of the order to Eddy, according to the agreement made between the parties, in my opinion, had this effect; but if not, the acceptance of the property by one of the joint purchasers under the order, without objection or repudiation of the contract by the other, most clearly had. In every joint purchase, each purchaser makes, of necessity, his co-purchaser his agent for the receipt of the property; in other words, the delivery to one under the contract is a delivery to all.

I hold, therefore, that the delivery of the order to Eddy for the use of Chamberlain and Thomas, according to the agreement with them, together with the sending forward of the machine, evidently for the purpose of executing the contract, and its acquisition by Thomas, under it — for I will not presume that he obtained it except upon such order' — was such performance by Dow & Fowler as took the case out of the Statute of Frauds; that the acceptance by one of the plaintiffs in error was the acceptance by both, as joint purchasers; either obtaining the property under the order acted for both, and his act bound both. The delivery of the order to Eddy was a delivery to Chamberlain & Thomas, for they had stipulated for such delivery; and if .Chamberlain desired to be freed from the contract to purchase, he should have given notice of his intention to repudiate, or directed Eddy to refuse to accept the order. Being joint purchasers, for whose use and under whose agreement the order was deposited with Eddy, either making use of such order, and acquiring the property by virtue of it, acted for both. The credit was given to both jointly, and the order and performance of Dow & Fowler were to both.

The private agreement between Chamberlain & Thomas, by which Chamberlain was released from his agreement to operate the machine in co-partnership with Thomas, does not affect the right or remedy of Dow & Fowler. It was not an agreement with them, or made known to and approved by them. It did not operate to release Chamberlain from his liability as a purchaser; for it was not made with his vendors, nor did it relate to the purchase.

There is therefore no question of partnership rights or partnership liability involved in this case, as the partnership contemplated by Chamberlain & Thomas related only' to the use of the machine after purchase; and the agreement by which Chamberlain was released from the contract to operate the machine with Thomas was personal to themselves. The consent of Dow' & Fowler was necessary to release Chamberlain, and no agreement between him and Thomas would have that effect.

Chamberlain is therefore, as I think, liable in this action. The unexecuted agreement between the two Thomases and McKercher does not free him from such liability, for McKercher is not shown to have acted within the scope of his authority; but, on the contrary it appears that Dow & Fowler gave no authority to McKercher to make such agreement, and were ignorant of it. In the absence of evidence of the power and authority of the agent, we can not infer that he had authority to rescind contracts which had been executed by his principals, but remained executory on the part of their vendees.

I think the judgment should be affirmed.

Judgment reversed.


author:
      Martin Ch. J.:
      Manning and Campbell JJ.

text:
    Henry J. Buckley v. Peter Saxe.
    Plaintiff and defendant made a wager upon the result of an election; depositing their negotiable notes for the amount, instead of money. “When the result was determined, the stakeholder delivered the notes to the winner, the defendant — who sold the plaintiff’s note, receiving $80 therefor. Plaintiff brought • \ assumpsit for money had and received against defendant, and on the trial, produced his note as evidence that he had paid it. It was held, that the production of the note was not sufficient evidence of its payment hy plaintiff to authorize him to maintain the action.

      Heard April 19th and 22d.

      Decided June 6th.

    Error to Wayne Circuit:
    The action was assumpsit for money had and received, originally brought before a justice of the peace, and appealed to the Circuit Court. On the trial in that Court, the plaintiff called the defendant as a witness, who 'testified as follows:
    “Sometime in the month of August, 1860, the plaintiff was in the warehouse of GL O. Williams & Co. in the city of Detroit. Plaintiff offered to bet me one hundred dollars that Stephen A. Douglas would be elected President of the United States at the next ensuing presidential election. I accepted the offer, and proposed to put up the sum of one hundred dollars in the hands of N. Gr. Williams on such bet. Plaintiff replied that our notes were as good as the gold, and instead of putting up the gold, we each put into the hands of N. Gr. Williams as the stakeholder our notes for the sum of one hundred dollars each; the note of each payable to the order of the other on the 1st of December then next ensuing. We considered the notes as good as money at the time. Soon after the election, and prior to December 1st, 1860, Williams delivered the notes to me, and I sent the note of plaintiff to a Mr. Skinner of Battle Creek, who sold the. same for eighty, dollars, and remitted me seventy - eight dollars, which I received. I endorsed the note in blank, and without recourse, before sending it to Skinner. The note now shown me by plaintiff’s attorney is the note so sold as aforesaid, and for which I received the seventy-eight dollars.’’ Which note was then read in evidence to the jury.
    The plaintiff here rested his case; and the attorney for the defendant put upon the stand the counsel for the plaintiff, who testified that the note offered in evidence was received by him from the plaintiff.
    This was all of the evidence given on the trial.
    The defendant requested the Court to charge the jury;

      First: That under the evidence, the plaintiff is not entitled to recover in this action:

      Second: That if they find that plaintiff did not pay the money directly to defendant plaintiff can not recover.

      Third: That a promissory note is not money within the statute against gaming, and that if the jury find from the evidence that the plaintiff bet his note with defendant, and afterwards paid the same to an indorsee of defendant, he can not recover back the money so paid in this action.
    The Court refused so to charge, but did charge the jury substantially as follows:
    That the notes were not money, but if the jury believe from the evidence that the notes were put up by the parties in the place of money on that bet, the plaintiff might recover the amount of money which the defendant had actually received for the note.
    To which charge and the refusal to charge as requested the defendant excepted.
    The jury rendered a verdict for plaintiff for $78.

      W. J. & J. J. Speed and JD. O. Holbrook., for plaintiff in error:
    Plaintiff has misconceived his action. A promissory note is not money: — Mart. & Yerg. 129; 3 Met. 367. The statute only gives this action where money is lost; and as it gives a new right, and prescribes a particular remedy, that remedy must be pursued: — 1 Mich. 193; 9 Mich. 23; 13 Barb. 209; 3 Comst. 9; 8 Gray, 243; Sedgw. on Stat. and Const. L. 402-5; 3 Wend. 494 ; 2 Sanf. S. C. 438. If the wager was one of goods, assumpsit can not be maintained: — 21 Me. 21. Nor can the action be maintained on the ground of Buckley having sold the note and received the money to the use of Saxe. The transaction being illegal in its inception, it can not be thus confirmed, and the money recovered: — 1 Arch. N. P. 3 Am. Ed. 153 and n. 2.

      Moore & Griffin, for defendant in error:
    Whenever a. party has received money, directly or indirectly, that belongs to another, and for which he gaye no consideration, it may be recovered in this action: — 1 Chit. Pl. 352; 21 Pick. 249; 3 Barb. 100; 8 Mich. 448. As between the parties, the notes in this case were void, but the statute makes them valid in the hands of an innocent indorsee. The defendant, therefore, had no interest in the note at the time of its delivery to him by the stakeholder. He could acquire none by indorsement, and the amount received must be held to have been received for the use of the plaintiff: — 15 Conn. 52 ; 3 H. & McH. 348; 2 Denio, 139.
    But the notes should be treated as money in this case, and we were entitled to recover the whole $100: — 13 East, 19. If so, the Court will not reverse the judgment as it stands: It is not necessary there should have' been an express agreement that the notes should be considered as money, if from the conduct of the parties it was implied: 8 Mich. 494; 6 Cow. 267, 465 ; 7 Cow. 662. And if they can not be treated as money, they may be held to be evidence of the amount of the money bet, and in that case, the moment the plaintiff j>aid his • note, he was entitled to recover it of defendant.
   Martin Ch. J.:

The statute against gaming (Comp. L. § 1582) provides that if any person shall, by playing at 'cards, dice, or any other game, or by betting on the sides or hands of such as are gaming, or by any betting whatever, lose to any person so playing or betting, any sum of money, or any goods whatever, *and shall pay and deliver the same, or any part thereof, to the winner, the person so paying or delivering the same may sue for and recover such money in an action for money had and received to the use of the plaintiff, and such goods in an action of replevin, or the value thereof in an action of trover, or in a special action on the case.

It is under this section that this action is brought; and the first question is, can it be maintained ? I think not. No money 'was paid by Saxe to Buckley upon a gaming or any other consideration. At the time of the making of the bet, negotiable notes were deposited with Williams, to be delivered to the winner. This was Buckley, as it turned out; and the notes were given up to him, before their maturity; and he endorsed the note of Saxe in blank, but without recourse, and sold it to a person in Battle Creek for $80. There is no evidence when or to whom Saxe paid the note, if he ever did, or what amount he paid, if any; but it is certain that he never paid any money to Buckley upon it. How then can Buckley be said to have. received money to the use of Saxe ? The promissory note was not money within the statute; and the money he received was from his indorsee upon the sale of it to his own and not to Saxe’s use. If he should be held to have received it for the latter’s use, then a right of action would have arisen to Saxe for such money so soon as Buckley received it, and whether Saxe ever paid the note or not; and if it were not then received to his use, the payment of the note afterwards to the holder would not, by relation, be a payment to Buckley so as to transfer tbe use to Saxe. Nor do I think he could recover in this form of action for the money paid to * the holder of the note; as the holder could not be held to have acted as Buckley's agent in receiving it; nor would Buckley be bound by his receipt of it. This remedy exists only by force of the statute, and to entitle a party to it, he must be strictly within the statute.

But if Saxe were entitled to this remedy, he has not-made a case authorizing a judgment in his favor. As already remarked, there is no evidence that he has paid the note, or, if he paid anything, what amount. It is claimed, however, that possession of the note is evidence of payment. In proper cases it is prima facie evidence of payment, I admit; but in an action to recover back money claimed to have been paid on the note, the burden is upon the plaintiff to show payment, and the amount, as facts; and the production of the note will not be evidence of either. The note from Saxe to Buckley was void as between them, and as to all persons except those who hold or claim under them in good faith and without notice of its illegality. Whether the holder of the note acquired it in good faith and with- • out notice does not appear; and no presumption will be made either that he did .or did not; although, if either were to be made, the fact that he bought it at a very large discount, and took it indorsed without recourse, would rather aid a presumption that he bought it with knowledge of its consideration. The possession of it by Saxe will be as consistent with the presumption that it was surrendered to him because void, as that it was given up upon payment. If he paid anything, the testimony was ’ within his reach to show how much; and we will not presume anything in his favor when he neglects to produce such evidence.

The Court below erred in refusing to charge as severally requested, and the judgment must be reversed, and a new trial ordered.

Manning and Campbell JJ.

concurred on the ground that there was no proof that Saxe ever paid any money on the note. On the other points they expressed no opinion.

Chbistiancy J. was absent when the ease was decided.


author: Martin Ch. J.:

text:
    William W. White, Administrator of Rachel J. Zane v. William W. Zane.
    The property of the wife does not become the husband’s by her permitting Mm to have possession of and uso it. He can not acquire it exoept by gift or purohase, and that gift or purchase must be established by some other evi' dence.than that of use and possession.

      Submitted January 8th

      Decided June 6th.

    Error to Cass Circuit.
    Rachel J. Zane, the wife of defendant, died in December, 1860, and plaintiff ivas appointed administrator on her estate by the Probate Court of Cass county, where the parties resided at the time of her decease. As such administrator he brought trover against defendant, for the conversion of a promissory note and certain articles of household goods and wearing apparel alleged to have belonged to Mrs. Zane in her lifetime.
    On the trial of the cause before a jury, the following special verdict 'was found.
    “ The jury find that Rachel Zane was, at her decease, the wife of the defendant, and that she died on the 25th day of December, 1860, and that at the time of her death she owed nothing. That the property, in the declaration mentioned, was mostly owned by the deceased before her intermarriage with the defendant, and that the balance was purchased after her marriage, with her own money. That during such intermarriage until her death the defendant and deceased kept house and lived together as husband and wife, and the property aforesaid, except the note, was used by them in the usual manner in beeping house, till the death of said Rachel, and remained with said defendant after such death. That said note came into- the possession of defendant in October, 1860 ; that the defendant retained possession of the property after the decease of Rachel Zane, and did convert it to his own use, after the death of said Rachel and before the commencement of this suit. And the jury further find the value of the property mentioned in the declaration to be the sum of two hundred and twenty dollars and ninety-eight cents.”
    Upon this verdict the Court gave. judgment for the defendant.

      D. Blackman, for plaintiff,
    referred to Cullen v. O’Hara, 4 Mich. 132, and Brown v. Fifield, 4 Mich. 322.

      A. J. Smith and id Muzzy, for defendant:
    1. The act of 1855 (S. L. p. 420), was designed to operate upon the wife’s individual property during her life time, and no longer. It enabled her to dispose of it if she chose; but if she did not dispose of it during her life, at her death it remains just as it did before the passage of the statute. . ‘
    2'. In this cause there being no evidence to show that she had ever assigned, conveyed or disposed of said property, and the operation of the statute ceasing at her death, tite rights of Zane in relation to said property were the same at her death as at common law before the passage of this statute.
    3. The act of 1855 is in derogation of the common law, and must be construed strictly. Therefore, because the act gives the wife control of her property, and the power to transfer during her life, it is not to be inferred that the common law rights of the husband are taken away when no such conveyance has been made: — Starkweather v. Smith, 6 Mich. 377, is not in point in this case, because that case simply decides that she has full control of her property while living.
    4. If the personal property of the wife is reduced to the . possession of the husband by her consent, it becomes his property both in law and equity: — Shirley v. Shirley, 9 Paige, 363.
   Martin Ch. J.:

The property of the wife does not, under our statute, become the husband’s by user, or by the simple possession of it by him. The object of the statute was to prevent this result, and to abolish the common law rule respecting the marital rights of the husband over his wife’s property.

The husband can not acquire the property of -his wife except by gift or purchase, any more than he can that of a feme sole. Such gift or purchase must be established by some other evidence than that of use and possession. (See Wales v. Newbould, 9 Mich. 45).

The judgment must be reversed, and a judgment entered for the plaintiff for $220,98, as of September 13, 1861, with costs of both courts.

Manning and Campbell JJ. concurred.

Christiancy J. was absent when the case was decided.


author: Campbell J. :*

text:
    The People on relation of Peter R. Messler v. Silas Simonson and others.
    A Court oan not, by an ex parte preliminary order or process, turn oven a wrong doer out of possession.
    Where complainant, claiming to be in actual possession of certain premises, obtained a preliminary injunction enjoining respondents from trespasses of a nature likely to injure the buddings, and the writ also enjoined them from in any way interfering or meddling with the possession, and from entering into the premises; and it appeared that respondents were actually in possession at the time the injunction was issued, it was held that they could not be punished as for contempt in maintaining this possession by force.

      Heard May 31st.

      Decided June 7th

      Appeal by respondents from the Genesee Circuit in Chancery.

      Wallcer & Kent, for appellants:
    The object of preliminary injunctions is to restrain defendants from a certain course of action supposed to be injurious to complainant: to keep the parties in statu quo until decree. It is no part of the province of such an injunction to compel a defendant to give up possession of premises, or to do any other act: — Wat. Eden on Injct. 9, note; Story Eq. Juris. § 861; 2 Green Ch. 136. And Simonson in maintaining his possession did not disobey the injunction: —Hemingway v. Preston, Wal. Ch. 528.

      Goulds & Hanchett, contra:
    If it were true that Simonson was in possession when the writ issued, it would not be competent to show it as evidence that he was not guilty of a contempt. He should have moved to dissolve the injunction, instead of disregarding it. It must be obeyed though improperly issued: — 1 Barb. Ch. Pr. 632, 636; 4 Paige, 444; 2 Edw. Ch. 188; 1 Hoff. Ch. Pr. 450; 3 Swanst. 626 ; 1 Wat. Eden on Injct. 102; 2 Ch. Ca. 203 ; 6 Ves. 109; 3 Meriv. 149.
    But it is insisted on the facts shown that I\e was not in possession.
   Campbell J. :*

Respondents were proceeded against under the statute punishing contempts to enforce civil remedies. Complainant filed his bill claiming to be in actual possession of certain premises, and praying to have defendant Silas Simonson enjoined from trespasses of a nature likely to injure the buildings, and threatened to be repeated.

An injunction was issued which was allowed in accordance with the prayer of the bill, but which enjoined Silas Simonson, and his attorneys, agents and servants, from in any way interfering or meddling with the possession, and from entering into the premises.

The affidavits on which the attachment was applied for set forth that, in the month of September previous to the filing of the bill (which was in January, 1861), Simonson had been put out of possession by a writ of possession in favor of Messier. That in December, 1860, early in the month, one Peter Yan Ness took a lease from Messier for eighteen months, and was put in actual possession about the first of January, but was put out again the same day, with all his effects, by Silas Simonson. The injunction was served January 11th, and the next day Yan Ness undertook to enter the house, but was prevented by Simon-son, who, with the other respondents, continued to keep him out. TTpon this showing an attachment was issued against all the respondents, and on its return was heard upon these and other proofs.

It appears without contradiction that when the bill was filed, and ever since, Silas Simonson and the other respondents under him have had actual possession of the premises; and that their acts during this period have consisted only of endeavors to maintain it. This being the case, the injunction has not been violated, for it was issued to preserve an actual possession against molestation, and not to oust a possessor who may have been a tortious holder. No Court can, by a preliminary ex parte order or process, turn even a wrong doer out of possession. And we can not'presume that the writ in the case before us was designed to have any such operation.

It becomes therefore unnecessary to consider the important and interesting questions which would have arisen had the case been presented upon a different state of facts.

The order of the Court below must be reversed, with costs. ,

The other Justices concurred.


text:
    Henry Barman v. James Carhartt.
    Where one guarantees the collection, of a note Which is secured by a collateral mortgage referred to in it, and at the same time assigns the mortgage with the note, he is not liable upon his guaranty until resort has been had to the mortgage as well as to the note for the collection of the moneys secured.
    A sheriff’s deed by itself is no evidence of a regular and legal foreclosure of a mortgage by advertisement under the statute.
    On case made after judgment for review upon the facts, the Supremo Court cannot send the case back for a new trial.

      Heard July 9th, 1861.

      Decided July 10th.

    Case made after judgment from Lapeer Circuit.
    Action upon the guaranty of a note. To maintain his action, Barman gave in ^evidence the note in the following words:
    “Six months after date, for value received I promise to pay to James Carhartt or bearer, two hundred dollars, with use: to secure the above payment I have this day executed a mortgage to said Carhartt.
    Hadley, Sept. 11, 1855. 1 J. H. Houghtaling.”
    Upon the back of which was the following:
    “I hereby guaranty the collection of the within note. James Carhartt.”
    The plaintiff then also gave in evidence the mortgage mentioned in the note, and which covered certain land in Lapeer county. Also a sheriff’s deed, purporting to be given upon the foreclosure of said mortgage by advertisement under the statute, in which it is recited that the land was sold for $100. Also a judgment rendered by a justice of the peace against Houghtaling on said note, for the amount thereof after deducting said $100, and execution thereon returned unsatisfied. He also introduced evidence to show that the guaranty of the note was given by Carhartt directly to plaintiff, in consideration of a horse then sold and delivered to him, and that at the same time Carhartt assigned to him the note and" mortgage. Also evidence tending to show that Houghtaling was wholly irresponsible, and had no property except the land covered by the mortgage. There was no other evidence in the case.
    Upon this evidence the Circuit Court rendered judgment for plaintiff for the amount of the judgment rendered by the justice, and interest thereon.

      M. Wisner, for defendant:
    Plaintiff must have exhausted his remedy upon both the note and the mortgage before he can sue upon the guaranty: 4 Cow. 173, 1 Cow. 98; 8 Mich. 51; 11 Wend. 629; 2 Hill, 139; 11 Paige, 28. The assignment of the mortgage was contemporaneous with the making of the guaranty upon the note, and the two instruments should be construed as one. -3 Wend. 233. The guaranty simply means that the note, with all its collaterals, is collectable; and that the guarantor will pay the same after all legal remedies have been resorted to against the maker, and failed. 11 Wend. 231; 1 Wend. 457.
    The sheriff’s deed, by itself, was no proof of a regular foreclosure of the mortgage. ,

      M. E. Crofoot and C. I. Walker, for plaintiff:
    The collection of the note alone was guaranteed: there is in the contract no guaranty of the mortgage. — 4 Wis. 190. It was therefore not necessary to foreclose it, before bringing suit upon the guaranty. Plaintiff is not obliged to first exhaust all possible remedies. See 11 Wend. 629; 8 Mich. 51.
   Campbell J.:

The only question of importance in this case is, whether under the guaranty of collection the guarantor could be held until resort had been made to the mortgage which was given as collateral to the note and referred to in it.

By this mortgage a special fund was set apart, out of which, so far as it went, the holder of the note had secured to him the means of collecting it. We do not think it reasonable to assume that, in any such case, a guaranty of collection refers merely to the personal responsibility of the debtor. When with the guaranty itself the guarantor furnished the means of obtaining payment, in whole or in part, and those means have been attached to the debt itself, and cannot be severed from it, the parties must be held to look to the entire transaction, and to contemplate a resort ito those means. Any other rule would be at variance with the object of such securities. Although a mortgage is in a strict sense merely collateral to a debt, yet it is generally regarded as forming its chief value, and persons usually contract with that idea. A person guaranteeing the collection of siich a debt, and assigning the mortgage with it, must, we think, be held to contemplate a collection by means of the mortgage, and not to anticipate that he will be looked to until the creditor has resorted to that.

The sheriff’s deed is no evidence of a regular or legal foreclosure. The guarantor has a right to have the proper steps taken in due form of law, in order that bidders may be safe in purchasing, and that the property may not be sacrificed. The regularity of the proceedings becomes important', therefore, in determining the responsibility of the guarantor; and the sheriff1’s deed is no more evidence of it than an execution is of the proceedings to obtain judgment. The statute requisites must be shown to have been complied with so as to make the sale lawful.

The judgment below must be reversed, with costs in both Courts.

Manning and Cheistianoy JJ. concurred.

Martin Ch. J. was absent.

Mr. Walker asked that the Court remand the cause for a new trial, that the plaintiff may have an opportunity to prove the correctness of the foreclosure proceedings.

But the Court held that, on the decision of a case made after judgment for review upon the facts, a new trial could not be awarded. The position of the case in this Court is similar to that of a case heard in Chancery on pleadings and proofs, and appealed to this Court. The facts are supposed to be all before the Court, and the decision upon them disposes of the case.

In this case an order will be entered simply reversing the judgment below, so as not to preclude the question of the right of plaintiff to bring a new suit.


author: Christiancy J.:

text:
    The American Baptist Missionary Union and others, v. Kortum K. Peck and others.
    The' last clause of §25 of the Act concerning Churches and .Religious Societies, &o. (Oom/p. L. § 2033), which makes void certain bequests to the amount of one hundred dollars or more, made by last will to religious societies, unless the will is proved in open oourt by three subscribing witnesses, does not apply to wills executed before the act took effect; and consequently bequests to religious societies to the amount of one hundred dollars or more, made by a will executed before that time, and having two subscribing witnesses only, may be valid notwithstanding the death of the testator occurred after the act took effect.

      Heard July 9th and 10th.

      Decided July 14th

    Error to Jackson Circuit. The case is fully stated in the opinion.
    Jerome, Howard & Swift, for plaintiffs in' error:

      The clause under which the bequests in qúestion are claimed to be void, was not designed to apply to wills executed before the act took effect.
    Statutes are to be so construed as not to have retroactive effect, unless there is a clear intention expressed to the contrary - Sedgw. on Stat. Law, 189, 191; 2 Lev. 227; 10 Mass. 437.
    But we shall undoubtedly be ¿referred to authorities which, it will be claimed, sustain the doctrine, that whether a will is validly executed or not, depends upon the law in force at the time of the testator’s death. It will be found, however, on examination, that very few of these authorities go to the extent claimed by the defendants in error, and that those that do, are entitled to very little consideration.
    The decisions in England seem to establish a different doctrine: — 2 Atk. 36 ; 1 Ves. Sr. 225 ; 1 Eden, 482. With these agree the following American authorities: — 4 Ired. 494; 9 Ired. 288; 12 Lred. 21; 15 Conn. 274; 7 Ala. 705; 5 Watts, 399 ; 5 W. & S. 198; 15 Penn. 470; 26 Ala. 535; 16 Sow. 275. And see 18 Barb. 535 ; 19 Barb. 494; 18 N. T. 412; 1 Seld. 309.
    But again, we claim the statute in question to be unconstitutional, as being in conflict with the first clause of the 20th section of Article IY. of the Constitution — “No law shall embrace more than one object, which shall be' expressed in its title.” — 5 La. Ann. Rep. 91; 5 La. Ann. Rep. 94; 11 La. Ann. Rep. 722; 13 La. Ann. Rep. 433; 5 Ind. 573; 9 Ind. 380; 14 Lnd. 195; 14 Ind. 239; 14 Ind. 305; 22 Barb. 634; 12 Geo. 36.
    In our argument so far we have admitted what has been assumed by the defendants in error, that the plaintiffs in error are societies to whom the statute in question applies. But we think it admits of grave doubt whether they are, or were intended to be mentioned in this statute. The words “church” and “Religious Societies5’ are the only words In sections 2032 and 2033 which can by any possibility apply to the case of the plaintiffs in error— and we think that the nse of these words in the previous and other parts of the statute, shows that they were intended to apply to bodies of worshippers and societies connected therewith in the several towns. And what adds force to this suggestion is, that the object of the statute evidently was to prevent the accumulation of property in the hands of ecclesiastical persons or bodies. The case of societies who receive money to distribute, but not to keep, could hardly have been supposed to be within the evil intended to be remedied. The law is a -pretty stringent one, and we hardly think the Court will be disposed to extend its application by construction.

      Blair & Gibson, and G. X. Wallcer, for defendants in error:
    The clear intent of the statute is:
    1st. To prohibit altogether the making of bequests to religious uses, during the last sickness of the testator, on account of the abuses to which that practice is subject ; and
    2d. To' require in every other case proof, by three subscribing witnesses, that the whole will was read to or by the pex-son executing the same, in their presence, and 'fully understood by the testator before the execution thereof.
    The act of 1855 is entitled “ An act concerning Churches and Religious Societies, establishing uniform rules for the acquisition, tenure, control and. disposition of property conveyed or dedicated for religious purposes,” &c. The first section repeals chap. 52, R. Si 1846, “saving all rights which may have accrued under the same,” subject to the modifications provided in the act.
    This discloses clearly an intention in the Legislature not to interfere with rights already accrued, but still to give the law a present force so far as it could constitutio’nally and legally do so; and this intent will be found to run through the whole act, and furnishes a key to the words “ hereafter made,” used in several sections as applicable to gifts, grants, devises, and bequests of real and personal property to religious societies and benevolent institutions, such as the plaintiffs in error are admitted to be.
    Section 22 makes use of the same words, and this whole' section strongly supports the view that the sole object of the language referred to is to protect rights of property “heretofore vested,” while it prevents the vesting of the gifts, grants, and devises which would have so vested but for the statute in question.
    To this effect also see § 23, and particularly the proviso, “that this section shall not in any manner impair or invalidate any grant, devise, or other conveyance heretofore made,” &c.
    ' Therefore, “every gift, bequest, legacy or donation,” “heretofore made,” or “hereafter made” in the language of this statute, is such an one as took effect by the vesting of the title to the property in the legatee, or donee, before the taking effect of the statute, or as would take effect thereafter; as the case might be.
    Legally there can be no such thing as a gift, bequest, legacy or donation of money or personal property made by last will, until the death of the testator. A will takes effect only at the death of the testator, and previously to that event no right is vested and no one is bound.
    It follows that a will must have effect in virtue of, and be in all respects governed by the laws _ in force at the time of the decease. See 2 Sumn. 272; 8 Paige, 304; 4 Hill, 138; 18 Wend. 294; 3 Barb. 386-7 ; Amer. Law Reg. Jan. 1862, p. 148, and note; 12 Metc. 174; 18 Geo. 1; 37 N. H. 295.
    By suffering the will to stand after the statute of 1855, the testator intentionally strikes out these bequests. He is presumed to know the law, and to intend this effect :-18 Wend. 298.

      As a general rule the probate of a will does not affect the validity of particular clauses, it being examined only as to. its execution: — 9 Pick. 361. Where,, however, the fault is in the execution, the will being properly executed for some purposes, but not for others contained in it, a limited probate is proper, as in this case: — 1 Pick. 239.
    The act in question is not unconstitutional. The clause in the Constitution claimed to be violated must necessarily have a liberal construction, or it would be a senseless clog upon' legislation, and frequently defeat laws not within the mischief intended to be remedied by it. There is nothing in this act foreign to the object expressed in the title, and the title embraces only one general subject.
   Christiancy J.:

The will here in question was executed on the eleventh day of April, 1853, and contains several bequests or legacies, exceeding one hundred dollars each, to each of the following parties: The American Baptist Missionary Union, The American Baptist Home Mission Society, The American Bible Union, The Baptist Convention of the State of Michigan, The American Baptist Publication Society, and The American Tract Society. The testator died on the 19th day of January, T859. The will was not republished by the testator after the passage of the “Act concerning Churches and Religious Societies,” &c. (Comp. L. §§ 2009 to. 2036), and is witnessed by two subscribing witnesses only.

The Circuit Court, on appeal from the Probate Court of Jackson County, determined that, as to so much of the will as contained these bequests or legacies, the will had not been sufficiently proved; and to this extent disallowed the same. The case is brought to this Court by writ of error upon a finding' of facts by the Circuit Judge, and exceptions to the conclusions of law upon such finding.

The whole question depends upon the construction to be given to the 25th section of the “Act concerning Churches and Religious Societies,” &c (Comp. L. § 2033). And the question is, whether this section was intended to embrace wills made or executed prior to the statute, or only those which should be thereafter executed. The power of the Legislature to affect wills previously executed, but which had not yet taken effect by the death of the testator, can not be doubted; if such was the intention of this statute, then, as to these legacies, the will must have been executed in the mode prescribed_ by this section, and three subscribing, witnesses were required to render these legacies valid: otherwise the whole will would stand upon the general statute of wills, with which its execution conformed — two witnesses only being required.

The 24th section of the act (Comp. L. § 2032) is confined to devises, gifts and bequests “hereafter made or attempted to be made by last will or testament ” — “ which shall be made or purport to be made, directly or indirectly to, or for the use of any church, congregation, religious order or religious society, or to or for the use of any ecclesiastical, educational or eleemosynary institution connected or to be connected with, or under the control or direction of, any church, congregation, order or society, or under the control or direction or subject to the visitorial power of any officer or officers or other authority of such church, congregation, order or society, in his, her or their official or ecclesiastical capacity.”

The 25th section is in the following words: - “ Every gift, bequest, legacy or donation of any money or personal property, to the amount of one hundred dollars or more, hereafter made or attempted to be made, by last will or testament, to or for the use of- any or either of the parties, or for any or either of the purposes mentioned in the last preceding section, shall be utterly void, if such last will or testament shall be made during the last sickness of the testator or testatrix; and no gift, bequest, legacy or donation of money or personal property, to the amount of one hundred dollars or more, shall in any case be valid, if made by the last will and testament, unless such last will and testament shall be proven in open Court by the testimony of three subscribing witnesses, nor unless it shall clearly appear by the testimony of said witnesses, that the whole will was read to or by the person executing the same, in their, presence, and fully understood by the testator before the execution thereof, and that the same was executed at the time when it bears date.”

It will be seen that the twenty-fifth section prohibits certain gifts, bequests and legacies of money or personal property being made by -will during the last sickness of the testator, and that it expressly refers to the 24th section for the description of the parties to whom, and the purposes for which such legacies are forbidden to be made during such last sickness; and that this provision is confined to “gifts, bequests, legacies and donations hereafter made or attempted to be made by last will or testament.” We think it very clear that neither this provision, nor the 24th section, was intended to affect any will previously executed, whether the testator was then alive or not: for though this language might be susceptible of a slightly different meaning from that of “a will hereafter made,” yet the words “hereafter made or attempted to be made” we think were intended to refer rather to the act of the testator than to the taking effect of the will by his death.

But the counsel for defendants in error insist that, even admitting this view to be correct, yet the subsequent provision which is particularly applicable to the present case, has no such limitation; and this .is the point upon which they seem mainly to rely.

The language is, “and no gift, bequest, legacy or donation of money or personal property, to the amount of one hundred dollars or more, shall in any case be valid, if made by last will and testament, unless,” &c. It is true this language is general, and, if taken literally without reference to the subject matter, the general objects and scope of the act, would apply to all wills giving legacies to that amount to any person or for any purpose whatever. But on looking to the whole scope and object of the act, it is quite manifest such was not its object, and that to .give it this construction would be an entire departure from the purpose which the Legislature had in view: it would in fact bring the act, or, at least this provision, in direct conflict with the Constitution; as a provision of this kind, applying to all wills generally, would have no connection with, or relation to, the objects indicated by the title of the act.

The counsel for the defendants in error not only admit, but insist, that the provision can not have this extent of application, but they urge that the “gifts, bequests, legacies,” &c., here mentioned, must be confined to those of the same character specified in the former part of the section, as to the parties to whom, and the purposes for which they are made; but that the qualifying words, “ hereafter made or attempted to be made,” do not apply to these latter bequests and legacies.

After a careful examination we are entirely satisfied, that the “gifts, bequests, legacies,” &c., last mentioned, are the same gifts, bequests and legacies mentioned in the former portion of the section. By the first provision of the section they are to be void, if made during the last sickness of the testator: by the last provision they are to be void whether made during the last sickness or not, “unless suoh last will and testament shall be proved in open Court by the testimony of three subscribing witnesses,” &c. We can therefore see no plausible ground for holding that the terms “hereafter made or attempted to be made,” do not apply equally to the “gifts, bequests and legacies” mentioned in both the provisions of the section. The latter provision is to be read as if the word such were inserted, so as to read, “and .no such gift, bequest, legacy, &c.” The word such would seem to have been omitted by accident, probably in copying or printing. The Legislature of 1859 amended the section by inserting it (.Laws 1859, p. 449). But the amendment was unnecessary, as the act, without it, was susceptible of no other rational construction.

The necessary conclusion is, that this will does not come within the provisions of the act in question; and having been duly executed and witnessed under the general statute of wills, and proved by the two subscribing witnesses, it should have been allowed as a whole. That part of the judgment or determination of the Circuit Court which disallowed the will as to the legacies in question, «must therefore he reversed, and a judgment or decree of this Court must be rendered, upon the facts found by the Judge, allowing and establishing the whole will; and the plaintiffs in error must recover their costs of both courts.

Manning and Campbell JJ. concurred.

Martin Ch.- J. was absent when the case was heard.


author: Manning J.:

text:
    The Columbia Bank v. Rebecca S. Jacobs.
    The interest of a mortgagee in lands is not subject to attachment.
    Where lands are conveyed by deed absolute on its face, for the purpose of securing a debt, and a written defeasance is given back by the grantee, and the deed is recorded but the defeasance is not, such defeasance is not made void by the statute (Comp. L. §2751), except as to purchasers for a valuable consideration, without actual notice of its existence.
    An attaching creditor is not a purchaser within the meaning of the recording laws, until the property attached has been sold in pursuance of law, and purchased in.’ by him.
    The provision in the attachment law, that “ Real estate shall be bound, and the attachment shall be a lien thereon, from the time when it was attached, if a certified copy of the attachment, with a description of such real estate, shall be deposited in the office of- the Register of Deeds” “within three days after such real estate was attached,” only gives the creditor a lien on the debtor’s attachable interest in the lands, and in no way interferes with the previously acquired rights of third persons. ♦

      Heard June 4th, 5th and 6th.

      Decided July 14th.

      Appeal in Chancery from Wayne Circuit. The case, so far as necessary to an understanding.of the points decided, is stated in the opinion.

      G. E. Hand, for complainant:
    1. There was an attachable interest.

      . At the time the attachment of the Columbia Bank was levied, and the lien thereunder fixed on the lands attached, there was an attachable interest therein, in Cyrus H. Jacobs.
    The deed of George B. Bussell and wife to Cyrus H. Jacobs, of the land attached, bearing date the first of April, 1854, was an absolute conveyance in terms, and was recorded as such in the records of deeds.
    •At the time said attachment was levied, no deed of defeasance, or other instrument for that puiqtose, had been* recorded in the registry of deeds, and said Bank had no notice of any deed of defeasance or other instrument whereby said absolute deed was made, or intended to be made, defeasible. See Comp. laws, p. 843, § 32.
    Undefi this state of facts, the interest and estate of said Jacobs in said lands was, by force of Russell’s absolute deed, an absolute estate in fee simple; and such it was, as to the Bank, to all intents and purposes, at the time said attachment was levied, and the lien thereunder fixed on said lands; and so the said estate and interest of said Jacobs in said lands were liable to be attached' and held at the suit of the Columbia Bank.

    That Russell’s deed to Jacobs “purports to be an absolute conveyance in terms” (see Comp. L. p. 842), is unquestionable and admitted. It was recorded in the book for recording deeds, whereas all “ deeds intended as securities ” were required to be recorded in the book for record of mortgages.— Comp. L. p. 842, §§24, 25 and 26.
    2. The attachment holds the lands.

    An attachment of land as the property of the debtor, defendant in attachment, to whom conveyance thereof has been made by an absolute recorded deed, will, in the absence of actual notice, hold the land, as against a defeasance which is not recorded -until after the lien on the land under the attachment has become fixed, in pursuance of the statute.

      Such attachment seizes upon and holds a fee, and not a mortgage interest; and this by force of the statute. — 5 Pick. 450; 7 Pick. 157; 11 Metc. 244; 2 Mich. 207; 6 Cush. 170.
    .The Columbia Bank occupies this position.
    It has attached lands granted by deed, recorded in the registry of deeds, to the defendant absolutely in fee; and its attachment has, by force of the statute, become a lien on the land attached (and has obtained judgment, and thereunder levied execution upon the lands attached), the while, no defeasance of said absolute deed was of record, and the Bank had no notice that said absolute deed was intended ás a mortgage. The lien by attachment thus obtained can not be overridden or defeated by a subsequently disclosed defeasance.

    The statute is explicit, that under such circumstances the “original conveyance shall not be thereby defeated or affected,.” The original conveyance would not only be affected, but absolutely defeated, as an absolute deed to Jacobs, if this subsequently disclosed defeasance could be allowed to have a retrospective effect, and defeat this attachment lien. If more were needed, this precise point has arisen and been adjudicated in Massachusetts, whence comes § 82 verbatim, and also our attachment law in substance.

      Newhall v. Pierce, 5 Pick. 450, was the case of an attachment levied on lands, an absolute deed of' record to the attachment debtor, the maker of the deed remaining in possession, and a defeasance recorded soon after the attachment was levied, showing it to have been intended as a mortgage; held, by force of the section of Massachusetts statute, of which § 32 is a verbatim copy, that the attach-' ment held the land unaffected by the defeasance. So in Newhall v. Burt, 7 Pick. 157, which was a similar case.

      In Pomroy v. Stevens, 11 Metc. 244, an attachment had been levied upon land, and before execution was issued, a prior conveyance from the attachment debtor was recorded. Held, under a section of Massachusetts statute of which R. S. 1838, 260, §25, is a copy, that the attachment held the land against the prior deed not recorded until after attachment levied. This decision was cited as authority, approved and followed, in Hubbard v. Smith, 2 Mich. 207. In the latter case (p. 209), the court held a priorunrecord ed deed was of no validity or effect, as against a subsequent grantee without actual notice. The same construction of the same terms in § 32 makes the unrecorded defeasance to Russell of no validity or effect against the attachment lien of the Bank.
    The Massachusetts cases, being decisions of the mother of our statutes touching attachments, have been recognized by our courts, and thus the construction of our statute fixed, if subject to any question before, which, however, the terms of our statute are too explicit to admit.

      C. I. Walker, for defendant,
    to the point that the interest of Cyrus II. Jacobs, being that of mortgagee only, was not subject to attachment, cited 1 Hill, on Mortg. 184; Drake on Attach. § 229; 24 Me. 185 ; 32 Me. 142; 16 Mass. 345; 3 Pick. 484.
   Manning J.:

The bill is to remove a cloud on the title of Cyrus H. Jacobs to lands attached as his by complainant, before proceeding to sell the same on execution in the attachment suit — -the alleged cloud consisting in a claim the defendant Rebecca S. Jacobs, wife of the said Cyrus II. Jacobs, has to the land in question, under a conveyance thereof to her by her husband, in nature of a post-nuptial settlement, or separate provision made for her by her husband. To entitle complainant to the relief asked, two things must be established: 1st. An attachable interest in the land in question in Cyrus H. Jacobs previous to tbe conveyance to his wife; and 2d. The invalidity of tbe post.-nuptial conveyance, for tbe purpose stated, in a court of equity.

It appears from tbe pleadings and proofs tbat tbe lands attached .were conveyed by George B. Russell and wife to Cyrus H. Jacobs, as security for $10,000 Russell loaned of Jacobs — Russell at tbe time giving Jacobs bis bond for tbe $10,000, and Jacobs executing and delivering to Russell a. writing stating tbat tbe conveyance was given as security for tbe loan, and promising to re - convey tbe land on tbe payment of tbe $10,000 and interest. The conveyance and defeasance taken together, and construed as one instrument, are a mortgage, and nothing more. This is conceded — and tbe first of tbe two questions to be considered involves tbe effect to be given to an unregistered defeasance, where tbe property has. been attached without actual notice to tbe attaching creditor of tbe defeasance.

Tbe conveyance from Russell to Jacobs was recorded, but tbe defeasance was not; and tbe Bank insists it bad no knowledge of the existence of tbe defeasance when tbe land was attached, and tbat it therefore has a lien on tbe land for the payment of its debt, discharged of tbe defear sanee, and of all rights growing up under it.

“When a deed purports to be an absolute conveyance in terms, but is made, or intended to be made defeasible by force of a deed of defeasance, or other instrument for that purpose, tbe original conveyance shall not be thereby defeated or affected, as against any person other than tbe maker of tbe defeasance, or bis heirs or devisees, or persons having actual notice thereof, unless the instrument of defeasance shall have been recorded in tbe registry of deeds of tbe county where the lands lie.’’ — Comp. L. § 2751.

This section must be construed with tbe other sections in tbe same chapter, providing for the registry of conveyances of real estate, and must be understood as declaring all such deeds of defeasance or other instruments void, when not recorded, against purchasers for a valuable consideration without actual notice of their existence. The registry law is for the protection of purchasers in g'ood faith for a valuable consideration, against prior secret conveyances. It makes no mention of attaching or judgment execution creditors, who must stand on their common law or statutory rights, independent of the registry statute. They are not purchasers within its meaning, and can not claim the benefit of its provisions until the property attached or levied on has been sold, in pursuance of law, and has been purchased in by them. Then, and not' before, they are purchasers within the statute, and entitled to all its benefits.

The attachment law provides that “Real estate shal be bound, and the attachment shall be a lien thereon, from the time when it was attached, if a certified copy of the attachment, with a description of such real estate, shall be deposited in the office of the register of deeds in the county where the same is situated, within three days after such real estate j was. attached, otherwise such attachment shall be a lien thereon only from the time when such certified copy shall be so deposited.” — Comp. L. § 4751.

This section, when it has been complied with, only gives the attaching creditor a lien on the land attached. Unlike the registry law, it in no circumstances gives such lien a priority over pre-existing rights, as its object is not like the registry law to protect purchasers, but to secure the property attached to satisfy any judgment the party suing out the attachment may afterwards obtain against the defendant in attachment. It is a lien to the same extent as a levy on the land with an execution would be a lien, provided a judgment is obtained in the attachment suit, and a bond has not been given for the release of the property, as provided for in the other sections of the act — §§ 4754, 4755, 4756. A lien to this extent was necessary to .give effect to the attachment proceedings, which otherwise might be rendered nugatory by- a sale of the property before judgment by the defendant in attachment. While the statute takes from the debtor his right to sell, or make other disposition of the property to the jnejudice of the attaching creditor, it in no way interferes with the previously acquired rights of third persons.

Jacobs’ interest in the land attached, as shown by the defeasance, was that of a mortgagee, which is not attachable ; and complainant not being a purchaser for a valuable consideration without notice of the defeasance, is not in a position to question the validity of the transfer of the mortgage interest by Jacobs to his wife. It is unnecessary, therefore, for us to go into this part of the case, and improper that we should do so, if the rights of Mrs. Jacobs are to be drawn in question without the proper parties before us.

The decreS of the Court below dismissing the bill is affirmed, with costs.

■Martin Ch. J. and Campbell J. concurred.

Christiancy J. was absent,


text:
    George W. Reynolds v. Sanford M. Green and others.
    Bill to redeem from a conveyance claimed to foe a mortgage. The "bill was not filed until thirty-four years after the maturity of the mortgage, which the bill alleges to have remained unpaid, and twenty-four years after the grantee had sold and conveyed the land. A party seeking to redeem after such a lapse of time, is bound to show affirmatively in his bill such facts as will establish the instrument as continuing in force and subject to redemption.
    The bill showed that the grantee in the mortgage - conveyance, and those claiming under him, had claimed and disposed of the premises as absolute owners for more than twenty years, and that possession had been had under them. It averred that the possession had not been continuous and adverse for twenty years’ but did not sbow that it was taken within that time. No excuse was shown for „ the delay in applying to redeem, and it was AeZcZ/that the averments in the bill were too uncertain to found a right to redeem upon.

      Submitted on briefs July 14th.

      Decided July 15th.

      Appeal from Oakland Circuit in Chancery.

      M. Wiener, for complainant,
    argued that the right to redeem was not barred by adverse possession of the mortgagee, until that possession had been continuous and uninterrupted for twenty years. — Story Eq. Juris. §§ 1028, 1520; 22 Conn. 569; 4 Kent, 186; 1 Johns. Ch. 387; 1 Paige, 56; 2 Barb. Ch. Pr. 194; 3 Johns. Ch. 129; 1 Mich. 400.

      Maynard & Meddaugh, and M. L. Drake, for different defendants,
    to the point that the possession under the conveyance by Biddle must be deeméd to have been adverse, cited 2 Sumn. 402; 3 Atk. 225; 7 Shepl. 269; 3 Johns. Ch. 129; 3 Sumn. 152; 1 Johns. Ch. 594; 3 Sandf. Ch. 501; 19 Vt. 526; 5 Johns. Ch. 552; 1 How. 196. If the possession was not continuous after it was first taken, and the premises for a time remained unoccupied, but possession was resumed without any intervening possession having occurred, the legal status of the parties would not be thereby changed. And the right to redeem is now barred.— 5 Johns. Ch. 184; 10 Johns. 381; 9 Mich. 132; 3 Mich. 482 ; 21 Mo. 113; 28 Ala. 226 ; Harr. Ch. 279; 1 Mich. 400; 1 How. 189, 193; 2 Sch. & Lef. 636.
   Campbell J.:

This is a bill filed to redeem. The instrument claimed to be a mortgage was made June 3, 1825, conditioned for the payment of $196, with interest, on or before December 3, 1826.

It appears by the bill that John Biddle, the grantee, sold the land to Daniel LeRoy September 10, 1836, and Daniel LeRoy conveyed by warranty deed to Robert LeRoy, June 23d, 1831. The defendants hold by a series of mesne conveyances.

¡¡¡The bill was not filed until about thirty-four years after the maturity of the mortgage, which is alleged to bave_ remained unpaid, and twenty-four years after the sale by Biddle to LeRoy. A party seeking to redeem after such a lapse of time, is bound to show affirmatively by his bill such facts as will establish the instrument as continuing in force, and subject to redemption. The defendants demurred generally to this bill for want of equity. We think the demurrer well taken.

It appears affirmatively from the bill, that Biddle and his grantees have, for more than twenty years, claimed and disposed of the premises as absolute owners. It appears also that possession has been held under those titles; but it is averred- that it has not been continuous and adverse for twenty years. But it is not averred that it was taken within twenty years; [and continuous acts of ownership are shown for nearly twenty-five years. The averments in the bill are entirely too uncertain to found a right to redeem upon under such ckcumstances. No reason is shown excusing the delay, and we can not presume that any exists.

The decree dismissing the bill must be affirmed, with costs.

The other Justices concurred.