source: Caselaw Access Project

author:
      Campbell J.:
      Manning J.:

license: Public Domain

text:
    Richard Elliott v. Horace Green and another.
    A recognizance of special.bail is not snob a “written instrument” as is intended by Circuit Court Rule 79, which provides that in any action brought upon a written instrument the plaintiff shall not be put to the proof of its execution, or the hand writing of the defendant, unless its execution be denied by affidavit.
    The genuineness of a recognizance of special bail may be disproved by defendants, in an action brought thereon.

      Heard January 20th.

      Decided April 29th.

    Error to Shiawassee Circuit.
    Elliott sued Green & Hinkley, on a recognizance of special bail, alleged to have been entered into by them before a Notary Public, as sureties for one Dudley, in an action brought in the Circuit Court for Ingham, county. Defendants interposed a plea of the general issue, with notice that if any such recognizance existed, it was not genuine, and was never executed and acknowledged by them. No affidavit was made of the fact alleged in the notice. On the trial, as appears by the bill of exceptions, the instrument sued on was given in evidence, and the 'defendants then “ offered to prove that the said paper, purporting to be a recognizance of special bail, was not executed or acknowledged by the said defendants, as it purported to be.” The plaintiff objected to this evidence on the grounds:
    1. No affidavit denying the execution of the said recognizance, or the hand writing of the defendants, had been filed and served.
    2. The recognizance is a record, and can not be impeached in this manner.
    The Court overruled the objection, and evidence was given “tending to disprove the execution and acknowledgment of the said recognizance by the said defendants, and also the genuineness of their signatures theretoand defendants had judgment.

      ■J. W. Longyear, for plaintiff in error:
    If the sureties would impeach the record, they must attack it in the Court and case in which it exists, by a motion to correct or expunge: — 1 Ind. 427 ; 6 Pick. 239. So long as the record exists it imports absolute verity, and can not be impeached upon this issue except for matters appearing upon its face. The record must be tried by itself: —1 Chit. Pl. 370, 485-6; 1 Greenl. Ev. § 523 ; 2 Burr. Prac. 233; 19 Ill. 117; 28 Miss. 398 ; 6 McLean, 630; 9 Fost. 580; 16 Johns. 55; 6 Pick. 232 ; 1 Ind. 427; 4 McLean, 339; 19 Conn. 489; 5 Pac. Abr. 25 (Bouv. Am. Ed.).

      If the evidence would be admissible in any case, it can not be here: — C. C. Rule 79; 5 Mich. 26; 2 McLean, 194; 6 McLean, 27; 1 Burr. L. Dic. 454, 455.

      A. & E. Gould, for defendants in error :
    The recognizance is not a record. The Statute does not make it one: it simply provides for its execution and filing. The proceedings at common law for putting in special bail differed from our own in several particulars. The bail piece, which was a memorandum that certain persons who executed it had become bail, answered in legal effect to our recognizance of special bail. But it was not the common law recognizance of special bail. No action was brought upon it, and none could be.' The recognizance of special bail was made upon the record of the Court by the clerk thereof, and consisted of the pleadings and statement of the undertaking of the bail, and when made .was called the recognizance roll. This roll was the record upon which action was brought. The bail piece was not a record, and was not used or referred to in the action: — 1 Burr. Pr. 109; 2 Ibid. 229; Grah. Pr. 145, 381 ; Yates Pl. 20; 3 Pet. Com. L. 208; Ibid. 140; 2 C. & H. Notes to Phil. Ev. 272; 9 Johns. 286. No similar record is .made under our statute.
    But if a record, it may be impeached on the ground of forgery: — 2 G. & BE. Notes to Phil. Mu. 272. And on the ground that the Court had no jurisdiction to make the record: — 5 Wend. 148; 19 Johns. 161; 4 Cow. 292; 6 Wend. 447; 7 Cranch, 481; 3 Wheat. 234; 4 Denio, 56 ; 6 Cow. 695 ; 4 Comst. 519; 2 Kern. 156; 17 N. Y. 72.
    Rule 79 does not apply to this case; but if it did, we might still disprove the instrument. That rule only shifts the burden of proof. It does not say the execution of the instrument shall not be denied-, but only that the plaintiff “ shall not be put to the proof of the instrument.”
   Campbell J.:

The first question presented is whether under rule 79 the Court below was at liberty to receive evidence to disprove the execution of the undertaking of bail sued upon, without an affidavit filed with the plea.

We are of opinion that this rule is not applicable. It was designed to cover cases of private instruments, and not such undertakings in the course of justice as are at least prima facie evidence of themselves when produced. The instrument sued upon is called by the statute a recognizance, and a scire facias is one of the means of enforcing it. Although it is in one sense a written instrument, yet we do not think -the rule referred to' reaches it.

It was objected however, that, being a matter of record, it can not be assailed in any way. How far a record is conclusive evidence, and how far only prima facie evidence, depends very much on the nature 'of the record, and very much also on the tribunal from whose action it derives its validity. The ease before us, had it shown what evidence was offered to assail the recognizance, and upon what specific points, might possibly have called for an investigation of these questions. But it appears that the genuineness of the document was the only question in controversy, and inasmuch as the particular evidence offered does not appear, we can not presume it improper if any at all was receivable. There is no record which can not be assailed as not genuine. And where any portion of a pretended record has been forged or altered, it would be absurd to hold that a party who would be bound by the record if genuine can not dispute it. This would make the act of a private forger, and not the act of a court of justice, import absolute verity.

We think the genuineness of the recognizance was fairly in issue, and that there was no error in permitting proof upon it.

The judgment below must be affirmed with costs.

Martin Cii. J. concurred.

Manning J.:

The recognizance is not taken in open Court, but is signed by the bail and acknowledged before an officer out of court. It is then filed in the cause, and becomes a record. The signatures of the bail and the officers taking the acknowledgment, as I understand the statute, are a necessary part of the recognizance; so much so that it would be worthless without them. If I am correct in this, in an action against the bail the genuineness of the signatures may be controverted, not to contradict the record, but to show that what on its face purports to be a record is not a record. The '¡'9th rule of the Circuit Court is inapplicable to the case.

Christiancy J. concurred in these opinions.

Judgment affirmed.


author: •Manning J.:

text:
    Stephen Griggs v. The Detroit and Milwaukee Railway Company and others.
    Where the parties in interest to a decree in Chancery remain unchanged, and. no new rights have arisen, a defendant interested in having the decree executed* should proceed by petition for that purpose. But when a third person has acquired an interest in the decree, a bill is necessary to bring him before the Court, that his rights may be passed upon by the Court as in other cases.
    The only effect of non-resident defendants appearing and answering after decree, under the statute, is to vacate the decree as to them, leaving it to stand as against other defendants.
    Where non-resident defendants appeared and answered after decree, and after a bill had been filed to execute the same, and no subsequent steps were taken in the original suit, it was held, that if these defendants wished to avail themselves of the right they had acquired by so appearing and answering, they should make their defense by answer to the supplemental bill.
    An appellant in Chancery can not complain of errors not affecting his interests.
    One of the defendants in a foreclosure decree who had a residuary interest in the mortgage foreclosed after complainant’s demand should be satisfied, filed a bill the object of wlrch was to have the benefit of that decree, and also to foreclose the mortgage against the defendants who were not, but should have been* parties to the first suit. Held not objectionable. Such a bill is an original bill as to those who were not parties to the first bill, and a supplemental bill as to those who were.

      It is no objection to tbe decroo in such a case that it is intbe ordinary form of foreclosure decrees — it appearing that payments have become due on the mortgage since the decree in the original suit, as well as on complainant’s debt which the mortgage was assigned to secure.
    One who receives a conveyance of lands with covenant against incumbrances, and gives back a mortgage for the purchase price, can not, in a suit to foreclose his mortgage, set off the amount of prior incumbrances whioh hechas neither paid nor shows that he has been or is in danger of being damnified by.
    He does not show that he is damnified by setting up the foreclosure in Chancery of an incumbrance, and the sale of the mortgaged premises, but without alleging that he was a party to the suit or in any way bound thereby.
    Where a mortgage was given by a railway .company to trustees for the bond holders, and these trustees purchased on the foreclosure of a prior mortgage a parcel of land which had been conveyed to the company, and the purchase was made by them in their own right, and not as trustees, it was held, that the purchase could not bo treated as a payment of the mortgage by them as trustee mortgagees, so as to entitle the amount to be set off against a mortgage given by the railway company for the purchase price of the land.

      Heard July 11th, 1861.

      Decided April 29th.

    Appeal in Chancery from Wayne Circuit. The case is fully stated in the opinion.

      JD. C. Holbrook, for complainant:
    A bill to have the decree executed was proper: — Welf. Eq. Pl 249; Cooper Eq. Pl. 98; Story Eq. Pl. 429.
    But if the Court should think the decree should not be enforced, then Griggs is entitled to a foreclosure, since no valid defense is set up in the answer.
    Incumbrances or defective titles constitute no defense to a mortgage for the purchase money, unless the purchaser has been ousted, or has paid the incumbrances:— 26 Wend. 109; 26 Wend. 113; 3 Echo. Ch. 124; 2 Wheat. 13; 2 McLean, 464; 17 Wend. 188; 8 S. & M. 727; 3 Sandf. S. C. 118; 2 Barb. Ch. 594.
    The pretended incumbrances are not alleged in the answer to have been recorded prior to the purchase of Firby; and by the pleadings, these incumbrances therefore are not shown to be valid prior liens.

      A. Pond, for defendants:
    The decree which the bill sets forth, was a bar to this bill as an original bill for the foreclosure of the mortgage: . 2 Daniels Ch. Dr. 753 et seq.; Mit. Eq. Pl. 248; Cooper Eq. Pl. 273 ; Story Eq. Pl. §§ 736, 738, 740 ; 3 Paige, 509; 5 Wis. 151. That decree being in part in favor of the complainant here, his proper course was to apply by petition and obtain leave to carry it into execution, if the complainants in the case neglected and refused to do so, as he alleges: — 2 Dan. Ch. Pr. 1348 et. seq.; Story Eq. Pl. § 740; 7 Hare, 331; 11 Paige, 147. And if it was defective for want of necessary parties, having obtained leave to carry it into execution he should have filed a supplemental bill to perfect it: —17 E. L. & E. 265; S. C., 19 E. L. & E. 244.
    Waiving all questions as to the form of this decree, it can not be sustained as substantially a decree for the execution of said prior decree, under the prayer in that behalf in the bill: Because said prior decree at the time this decree was rendered did not exist. It had been regularly opened, under the statute : — Comp. L. § 3543 ; Wal. Ch. 305.
    If it be held that the bill is sustainable as an original bill for the foreclosure of the mortgage, then of course the whole case is open, and defendants are entitled to set up any defense that may exist to such foreclosure. And the outstanding prior incumbrances upon the jmemises shown by the answer and stipulation should be deducted from the amount due upon the mortgage: — 3 P. Wms. 306; 1 S. & R. 437; 2 Johns. Ch. 546; 1 Green Ch. 407; 1 Green Ch. 467; 1 Rand. 72; 7 Ind. 533 ; 7 Gratt. 399.
    The case of Abbott v. Allen, 2 Johns. Ch. 522, and analagous cases based upon it, are clearly distinguishable from this case. They hold only that a “mere defect' of title” is no defense to an action for the purchase money. In Abbott v. Alen, the Chancellor says he expresses no opinion as to “whether or not the injunction ought to stand if there had been a previous eviction, or if there was an existing incumbrance which appeared to admit of no dispute,” which is the case here. What his opinion was, upon this point, is shown by the case of Johnson v. Gere, 2 Johns. Oh. 546. See also 1 Green Ch. 412.
   •Manning J.:

• In 1854, Thomas Firby sold to the Detroit and Pontiac Railroad Company, now the Detroit and Milwaukee Railway Company, three lots situate in the city of Detroit, numbered 11, 12 and 13, and conyeyed the same to the company by a warranty deed, with a covenant against incumbrances, and took back a mortgage on the same premises for $16,000, a part of the purchase money. Firby assigned the mortgage to C. & A. Ives. The assignment was absolute on its face, but was given as security for a debt that Firby was owing them. Firby afterwards assigned the same mortgage to complainant Griggs, to secure a debt he was owing Griggs. The Iveses filed a bill against the Railway Company to foreclose the mortgage, making John M. Forbes, John W. Brooks and complainant, parties defendants as subsequent purchasers or incumbrancers. The subpoena was personally served on the Railway Company and on Griggs. Forbes and Brooks being non-resident defendants, and not appearing, the bill was taken as confessed against them- under the statute. It was also taken as confessed by the Railway Company. Griggs appeared and answered, stating, among other things, that the assignment to the Iveses was intended as security only for what Firby was owing them, and the subsequent assignment to himself to secure what Firby was owing him. On February 8th, 1858, a decree was entered, stating the amount due on the mortgage from the Railway Company (for the whole of the mortgage debt was not then due), and directing the payment of the debt Firby was owing the Iveses, amounting to $6,308,01, and the payment of $3,289,33 to Griggs, that being the amount then due on what Firby was owing him. •

The bill in the present case is filed by Griggs against all of the parties to the former bill, and against the following persons who were not parties to that bill, viz: Thomas Firby, Erastus Corning, Frederick C. Gebbard, George F. Porter, Charles J. Brydges, Thomas Reynolds, Henry C. R. Beecher, John Owen, James Y. Campbell, Jared C. Warner and Matilda Firby. After setting forth the several facts already mentioned, the bill states, on information and belief, that the Railway Company had made some kind of mortgages or other conveyances of the premises to Brydges, Reynolds and Beecher, as trustees for parties unknown to complainant; that they had purchased of the Iveses the aforesaid mortgage and decree; that they claimed to be the owners thereof and to control the decree; and that they refused to execute the decree by a sale of the mortgaged premises. The other defendants, who were not parties to the first bill, are stated as having, or claiming to have, some right or interest in the mortgaged premises, as subsequent purchasers, incumbrancers or otherwise. And the bill concludes with a prayer for an execution of the Ives decree, or a foreclosure of the mortgage on which that decree was entered, and the general prayer for other or further relief.

The Railway Company, Brydges, Reynolds, . Beecher, Owen, Campbell and Porter, put in an answer admitting all the statements in the bill except the purchase of the Ives decree, which it states was purchased by Brydges and Reynolds in their individual capacity and hot as trustees, and that Beecher was not a party to the purchase. It also states that on the 9th of November, 1859, Forbes and Brooks, under the statute providing for such cases, filed a petition in the Ives foreclosure suit for leave to answer the bill in that cause; that leave was granted, and that they thereupon filed an answer, and that no further proceedings had been had in that cause. The answer also states that lots 11 and 12 were incumbered by a mortgage, given by William Gooding, when he was owner of the lots, to Aretus Wilder, dated September 27th, 1850, for $4,000 and interest. And that lot 13 was also incumbered by a mortgage given by Firby and wife and Thomas Wood and wife, when they' owned the lot together, to Joseph Penny, on the 27th May, 1852, for $2,500 and. interest; that the Wilder mortgage, so far as appeared of record, had not been paid or discharged, in whole or in part: that the Penny mortgage had been foreclosed by the mortgagee against the mortgagor, and lot 13 sold under the decree on the 8th July, 1858, to D. Bethune Duffield, for $1,554,85. These mortgages the answer insists should be deducted from the mortgage given by the Railroad Company.

Firby and' wife and the Iveses also answered, .-but as no question arises on either of their answers, it is not necessary to notice them further.

The bill was taken as confessed by Forbes, Brooks, Corning, Gebhard and Warner.

A decree having been entered for- complainant, the Railway Company, Brydges, Reynolds, Beecher, Owen, Campbell and Porter, appeal to this Court, and ask a reversal or modification of the decree.

1. A reversal of the decree. . This is asked on the ground that the bill can not be sustained as an original bill for the foreclosure of the mortgage, as the bill previously filed by the Iveses and the decree in that suit are a bar to a second bib for the same purpose by a party to that suit. Nor as a bill to execute the decree in the Ives suit— complainants remedy in that case being by petition and not by bill.

As to this last objection, if the parties to both suits were the same, and nothing had transpired since the Ives decree rendering another bill necessary, there would be some force in the objection, on the score of costs. But whether in such a case it would or should go further than staying proceedings on the second bill when the objection is taken •at an early stage of the cause, with leave for complainant to proceed by petition; or, when not so made, to a denial of costs to complainant on the final hearing, may well be questioned. It is not however our intention to decide this point, as the assignment of the mortgage and decree to Brydges und Reynolds, of itself, made a case for a bill to carry the decree into execution: — Cooper’s Equity, 99. Where the parties in interest remain the same, and no new rights have arisen, a petition would seem to answer every purpose, and should be adopted, as it is more expeditious and less expensive than a bill. But when a third person has acquired an interest in the decree, a bill is necessary to bring him before the Court, that his rights may be passed upon by the Court, as in other cases.

Failing on this point, it is next said by the appellants that the decree was vacated by the appearance and answer of Forbes and Brooks, under the statute relative to nonresident defendants. It was vacated as to them, but left in statu quo against the other defendants. The only effect of the order permitting them to appear and answer .was to vacate the decree as to them. The ' statute neither gives nor was intended to give a re-hearing to parties regularly before the Court, and who had been or might have been heard, and whose rights had been passed upon by the decree.

Forbes and Brooks appeared and put in their answer to the Ives bill after the present bill, which has been taken as confessed by them, was filed. And if they wished to avail themselves of the right they had thereby acquired, they should have appeared and set up their defense by answer to the present bill. This they have not done, but, as already stated, permitted the bill to be taken against them as confessed. Neither have they appealed; and if there was error as to them in the complainant’s mode of proceeding — which we do not think is the case — the appellants can not be heard to make the objection, as they aro in no way affected by it: — Warner v. Whittaker, 6. Mich. 133,

The object of the bill is to have the benefits of the Ives decree, and at the same time foreclose the mortgage against the defendants who were not, but should have been, parties to that suit. It partakes of the character of' both a foreclosure bill and a bill to execute the Ives decree. It contains the elements of both, by whatever name we may call it, which is of little consequence. It is an original bill against the defendants who were not parties to the Ives bill, and a supplemental bill as to the parties to that bill.

2d. The Gooding mortgage on lots 11 and 12, and the Penny mortgage on lot 13. These mortgages were on the-premises when Firby conveyed . to the Railroad Company; and it is insisted that, as the conveyance contains a covenant against incumbrances, they should be deducted from the amount due on the company’s mortgage to Firby, They have not been paid by the Railway Company, or any of the appellants. Non constat that they will ever be called on to pay them, or that they ever will be paid by them. How then can they be set off? It is not necessary to inquire whether they are good and subsisting incumbrances or not, so long as they have not been paid by the appellants, and they do not show that they have been or are in danger of being damnified by them. The Penny mortgage it is true has been foreclosed, and lot 13 has been sold under the decree to Duffield, of whom it has been purchased by Brydges and Reynolds, for Sl^SO. But it does not appear the Railway Company, or either of the appellants claiming under it, was a party to the foreclosure, or is bound by the foreclosure proceedings. Nor that either of the appellants has been or is threatened to be ousted of his title. Brydges and Reynolds purchased in their own right and not as trustees for the bond holders. Their purchase, therefore, was not and can not be treated as payment of tbe mortgage by them as trastea mortgagees. It is not necessary to say what would he the effect of such facts on the rights of the parties if they appeared in the case. It will he time enough to dispose of that point when it arises. But we are of opinion the pleadings and proofs fail to make a case calling for a deduction from the amount due on the company’s mortgage.

As to the form of the decree. It is said to he that of an ordinary foreclosure. We see nothing objectionable in this under the circumstances. When the Ives decree was entered the railway mortgage was not all due, and only a part of the debt which Firhy was owing complainant, and to secure which the mortgage had been assigned to complainant. Further sums having become due on both, a new reference and a decree based on the commissioner’s report became necessary.

The decree must he affirmed, with costs.

Martin Ch. J. and Christianct J. concurred.

Campbell J. did not sit in the case.


author: Christiancy J.: Manning J.: Campbell J.: Martin Ch. J.:

text:
    James A. Rice v. John Ruddiman.
    'Fractional townsliips, as surveyed by the United States, are townslwps within the meaning of the clause in the State Constitution which provides that organized counties shall not be reduced to “less than sixteen townships as surveyed by the United' States,” unless the act providing therefor be submitted to and rati-* fied by the people of the counties.

    A law must be understood as beginning to speak at the moment it takes effect, and not before. If passed to take effect at a future day, it must be construed as if passed on that day, and ordered to take immediate effect. Per Chris*» tianoy J\, Campbell J. concurring.
    ‘The act organizing the county of Muskegon, approved February 4, 1859, not being ordered to take immediate effect, went into operation under the Constitution^ May_ 16, 1849. The act provided for au election of county officers “ at the annual township meeting to "be held in April next.” This must he construed to moan tho, April next after the law took effect; and in the absence of proof to, the .contrary, individuals acting as county officers in October, 1860, must be presumed to have been elected in April, 1860, and not in April, 1850. PerChristianoy 3., Campbell 3. concurring.
    Admissions of parties as to conclusions of law can not bind the Court.
    The rule of riparian proprietorship upon the river Detroit, as laid down in Lormam v. Benson, 8 Mich. 18, is applicable to Lake Muskegon; and the ownership of land bordering upon the lake carries with it the ownership of the land under the shallow water so far out as it is susceptible of beneficial private use, but subordinate to the paramount public right of navigation, and the other public rights incident thereto.

      Heard November 14th and 15th 1861.

      Decided April 30th.
    Error to Muskegon Circuit.
    Rice was prosecuted by Ruddiman, under chapter 150 of the Compiled Laws, for the forcible entry and detainer of a building, described as situated on the Muskegon Lake,, in Muskegon township, near the north shore of said lake, opposite fractional section sixteen, town ten north of range-ten east. Ruddiman pleaded not guilty to the complaint, and judgment having been rendered against him on trial before the Commissioner, appealed to the Circuit Court, where the cause came on for trial October 10, 1860.
    After a jury was impanelled, but before it was sworn,, defendant’s counsel objected to the whole panel, and to the swearing of a jury in the cause, upon the ground that Under the statutes of this State there was no such officer-as clerk or sheriff of said county of Muskegon, and therefore no lawful jurors; which objection was overruled by the Court.
    It appeared in evidence on the trial, that on the tenth day of December, 1859, the plaintiff was in possession of' the premises in controversy, and that on that day the defendant, who was Deputy United States Marshal for the District of Michigan, forcibly entered into the same and took possession, by virtue of a writ of possession issued July 20, 1859, by the Circuit Court of the United States for the District of Michigan in Chancery, directed to the Marshal of said district, commanding him to go to and. enter upon fractional section eighteen, in township ten north of range sixteen west, in the county of Ottawa, and eject and remove therefrom said Ruddiman, and all and every person or persons holding or detaining the same or any part thereof against Anson Eldred or his assigns, and that he put said Eldred or his assigns in the full and peaceable possession thereof. This writ was issued in a • suit in which said Eldred was complainant and said Ruddiman defendant, commenced May, 1854, to foreclose a mortgage deed, given in 1849, by said Ruddiman, of fractional section eighteen, to secure the payment of money advanced in building a mill on said section, and for other purposes.
    A plat was then given in evidence, which was admitted to be a correct sketch of the said fractional section eighteen, with reference to Muskegon Lake, and with reference to the building described in the complaint, which is the one marked “2”. on the plat. The surroundings, as shown by the plat, are as they now appear.

      The following testimony was then given on the part of defendant.

      Robert Jibson testified, that “ the Ruddiman mill stands about twenty - nine rods, as near as I can judge, from the niain land, in a direct line out in the water from shore. The present roadway from the mill to the shore was not there, in 1849; in that place was then a foot bridge over the water; teams had access to the mill over a sand bar. I don’t think the sand bar went all the way to the mill, but say, out as far as the blacksmith shop [marked “3” on the plat]; the rest of the way, I think, was a road of slabs, or a slab bridge, up to the mill; the bar was wider and larger where the blacksmith shop stood than the rest of its length. In 1849 I took up the floor near the machinery, and examined the foundation of the mill at Ruddiman’s request; there was a sort of springing motion in the foundation when the mill was in operation, which made it difficult to work the mill; under the floor I found water, and a soft muddy deposit into which I could thrust an edging perpendicularly four or five feet; the water between the mill and the shore is used for a boom; there was but very little dock when I first saw it. I have known the mill ever since it was built; there was a shed standing where the new part of the mill now is; there was a sort of shed there in 1849, but I afterward built another in its place, which remained till it was torn away to make room for the new mill; the water in Muskegon Lake' is° higher now than it was in 1849, but how much I can not exactly tell; it is falling a little this season.

      Robert IE. Morris testified, that “ Lake Muskegon is about six miles long, with an average width of two and a half miles; the outlet from it into Lake Michigan is about sixty rods long, and the level of Lake Muskegon is affected by the level of Lake Michigan, and rises and falls with it.” (It was here admitted by both parties that, for the purposes of this trial, Lake Muskegon should be considered an arm or estuary of Lake Michigan, and part and parcel thereof, and not as a widening or continuation of Muskegon river). “ I remember the site of the Ruddiman mill before the mill was built; I was around the north side of Muskegon Lake shortly before the Ruddiman mill was built; I think the same season; I remember the sand bar; it was dry when I was there. It was my impression that this mill, or a part of it, was built on the end of this bar; I do not remember the width of. the bar, but think it was two or three rods wide in the widest place; it extended from the shore in an easterly direction. The present level of Muskegon Lake is from one foot to eighteen inches higher than in 1849; there was grass and rushes growing in the lake about the sand bar. Lake Michigan has a sort of ebb and flow once in six or seven year; perhaps longer; last season the water stood about still; this season it is subsiding a little; the rise and fall of these lakes is an ordinary occurrence.”

      Robert ürquhart testified, “I yesterday examined the line of the sand bar as marked on the plat; it was plainly above water next the shore and next the mill dock, and there were two or three little points above the surface between. The deepest point in the bar was fourteen inches; „ the point nearest the mill, where the sand bar appeared, was at the edge of the slab dock, and about three hundred feet from the mill.”

      jDanoin Olney, a witness for complainant, testified, “I know the building described in the complaint; it is the new Ruddiman mill; it .was raised in July, 1855; I was there and assisted in building it; I assisted in preparing and clearing away for the foundation, and in laying the foundation; the bed timbers wore laid in the water at the time; the water was about two feet deep where the foundation was laid; the new mill is a separate erection, about twenty by sixty feet, and adjoins the old mill on the south side; there was an old shed torn away which covered a part of the ground; the old shed did not cover the whole length of the new mill; in preparing the foundation the material taken out was mostly slabs.”
    The evidence being in, the Circuit Judge charged, among other things, as follows:
    That as a matter of fact to be determined by the evidence, it was for the jury to find whether said new mill was upon and parcel of fractional section eighteen, or not.
    That if the jury shall find that said new mill was erected upon ground above water at high water mark, and that the same was connected with the main land of said fractional lot by a continuous dry ridge or sand bar, that then the law would pronounce said mill upon fractional section eighteen, and subject to the process in the hands of the defendant, and his lawful acts thereunder would be justified.
    That if on the contrary the jury should find that said new mill was built in the water of Lake Muskegon, so that its foundations were covered and surrounded by the circulating waters of said lake at the ordinary level of the same, that then the further admission of the parties in the trial that the entire Lake Muskegon was an arm of Lake Michigan, connected with and constituting a part and parcel of the latter lake, became important from the legal principle involved.
    That the principle of law determining the right of riparian owners (upon navigable rivers and above tide water) and extending their proprietary rights to the center of the stream, were not necessarily applicable to the large bodies of fresh water and lakes in the interior of the continent.
    That as to the ocean and waters of rivers where the tide ebbs and flows, the well settled principles of law determine that the proprietary interest of the riparian owner in the soil terminates at the line of ordinary high water mark: the State in virtue of its sovereignty holds the ownership between high and low water mark; leaving to the riparian owner the right to abate as a nuisance any erection or use of the waters in front of his premises, incompatible with his free access and use in common with the public.
    That with this sovereign right of the State the Federal Government can not interfere, by sale or otherwise, except for purposes of commerce and national defense.
    That in the apparent absence of a settled law regulating and defining riparian rights around the large fresh water lakes of this continent, sustaining a commerce rival-ling the ocean, the Court can perceive no reason why the doctrine applicable to tide water should not apply to the lakes equally; the quality of the water, whether salt or fresh, being entirely immaterial; and especially if the jury find as a fact that the waters of all these lakes are subject to, the same periodical tidal influences with the ocean.
    The Court therefore charge the jury, that the riparian owner upon the shores of Lake Michigan has no proprietary interests in the soil covered by the water, to the center line of said lake, but his rights of soil terminate at ordinary high water mark, under any purchase or patent from the general government; and ownership around Muskegon Lake — it being by the admission of defendant parcel of Lake Michigan — must follow the same rule and be held subject to the same limitation, whenever the waters are susceptible of being navigated for any useful purpose? whether shoal or deep.
    To this charge the defendant’s counsel excepted, and the jury having found a verdict for complainant, the defendant brought error.

      Walker <6 Russell, for plaintiff in error:
    1. There was no legal organization of Muskegon county. The act organizing it (Laws 1859, p. 93) did .not take effect till May 16, 1859, while the only election of officers authorized by it was to take place on the first Monday ' of April preceding.
    The act itself was invalid under the Constitution (Art. 10, §2). It contains no provision for its submission to the people. But neither of the old counties from which Muskegon was taken contains sixteen townships of land as surveyed by the United States. Ottawa contains thirteen whole, and four fractional townships; the latter containing one hundred sections only, counting every fractional section as a whole one. Of these facts the Court will take judicial notice. See for a judicial interpretation of a similar provision in the Constitution of Wisconsin, 1 Wis.- 200.
    2. The Court erred, in its charge with respect to riparian proprietorship. We claim this point to be settled by Lorman v. Benson, 8 Mich. 18. That case arose upon the banks of. the river Detroit, but no logical distinction can be drawn between the shores of the strait of Detroit, and of lake Muskegon, or Lake Michigan. If the decision we ask was not in accordance with the common law, we would still ask this Court to overrule the decision below, as" contrary to immemorial usage and custom, which has in itself made a common law for the north-west. But no such necessity is imposed upon us. The decisions upon cases arising on rivers and harbors adjacent to the lakes, on the Ohio, Mississippi, Milwaukee and other rivers, are all founded on a principle which legitimately and necessarily leads to the decision we ask. No State bordering upon the lakes has ever claimed any rights in the shallow waters except that of navigation, and the injection of an independent proprietorship between the owner of the upland and the navigable waters of the north-west, would lead to practical evils without limit in number or extent.

      G. V. N. Lothrop, for defendant in error:
    The opinion in Lorman v. Benson, carefully abstains from any extension of its doctrines to the lakes.

      What, then, is the rule of law applicable to this case ?
    It has been sometimes suggested that the common law could not apply to riparian owners on oúr lakes, because* there being* few or no like bodies of water in England* the common law was entirely silent as to such cases. But this objection fails if we reflect that the common law is not a system of fixed rules, but a code of principles.. These principles may be applied, therefore, with suitable modifications, as new cases arise.
    At the common law, the title to the soil beneath the-tide waters was presumptively in the sovereign; beneath all streams above tide waters, in the riparian proprietors. All tidal waters, whether in bays, inlets, or rivers, were considered navigable in the same sense that the sea itself was, and the soil beneath them was put on the same footing as that beneath the sea. Now, was this distinction arbitrary, or did it depend on an intelligible principle ?
    It seems to me that this was the plain principle. Tidal waters were presumed to be of such depth and extent that, both in their nature and uses, they were substantially distinct from the adjacent land. But ordinary streams were regarded but as a part of the land itself, and the right of the public in the waters was considered but as an easement over the land. Hence, in such streams, the owner of the bank owned the bed also to the thread of the stream.
    When, therefore, we find waters which are; 1. Rivers or streams, affording thejilum aguce, as the limit of riparian ownership, and 2. So limited in extent and uses as to be fairly incidental to the land; we can readily extend to to them' the common law of waters not technically navigable. But, on the other hand, where the waters expand to a lake, where, in extent, uses and character, they may be fairly regarded as maritime, then it seems to me clear that the law of tidal waters is applicable to them.
    That this maritime character belongs to the great Lakes is everywhere admitted. It was recognized by this Court and by the Supreme Court of the United States in the case of Moore v. The American Transportation Company. So the navigation laws and the [admiralty jurisdiction established over the Lakes recognize the same thing.
    The character which belongs to the lakes extends to all their bays, inlets, and arms; for, however named, they are but parts and divisions of the lakes. It thus seems clear to me, on principle, that riparian owners on the lakes have no interest in the soil beneath their waters. I am not aware of a single judicial decision, or even dictum, which intimates such ownership. On the other hand, I find my position supported by considerable authority: — Ang. on Water Courses, §41-2; 9 N. H. 461; 1 Shep. 198; 13 Pick. 261; 1 Fairf. 238; 30 Me. 47; Walk. Ch. 155 ; 5 Wend. 447 ; 17 Wend. 597, 616, 621 ; 19 Barb. 484.

       See for a more full discussion of some of the questions involved in this case, the case of Carleton v. The People, post.

       Annexed is a reduced copy of tliis plat.

   Christiancy J.:

The first error assigned is, that the Court overruled the objection of the defendant below to the panel of jurors. This objection was made on the ground that, under the statutes and the Constitution of the State, there were no such officers as clerk" or sheriff, for the reason that the county had] not been legally and constitutionally organized at the time of the trial, and that there was no law authorizing the election of county officers.

The act of February 4th, 1859 (Sess. L. p. 94) purports to organize the county of Muskegon, describing by townships and ranges the territory of which it is to be composed, establishes the county site at the village of Muskegon, authorizes the electors at the election in November, 1860, to elect one member to the House of Representatives, and then provides, § 4, that “ at the township election to [be held in April next, the proper county officers for said connty shall be elected, whose terms of office shall expire on the first day of January, 1861, and when their successors are elected and qualified.”

It is insisted by the plaintiff in error, that the act is in violation of § 2 Art. X of the Constitution, because it leaves less than sixteen full townships of thirty-six sections each in , each of the organized counties from whose territories it was taken, and no provision is made for submitting the question to the people. It is admitted that the remainder of each of those counties contains more than sixteen townships, if townships which are fractional by the public surveys are to be counted. By the Constitution organized counties are not to be reduced “to less than sixteen townships as surveyed by the United States, unless” &e.

Now, “as surveyed by the United States,” each of these fractional townships is treated and described as a separate and independent township, as much as -those which are not fractional; and in describing lands within them it would not be necessary to describe the township as fractional. We are therefore all of opinion that these fractional townships are to be treated as whole townships under this provision of the Constitution.

But it is insisted, secondly, that as no particular time was fixed by the act when it should take effect, and it was not passed by a two-thirds vote, it could not go into operation until ninety days after the end of the session, which would bring it to the sixteenth or seventeenth of May, 1859; and that, as the county officers were required to be elected in “April next,” it follows, as a consequence, that the election was required to be held before the act could constitutionally take effect; and that the act, so far as it authorized the election, was void.

It is very clear the act did not take effect till ninety days after the end of the session. But we do not think the act was therefore void as to the election provided for. It took effect in May, 1859, and must be understood as beginning to speak at the moment when it became a law, and not before. It must have the same construction as if passed on the day when it took effect and directed by a two-thirds vote to take immediate effect. “April next” must therefore be understood as April, 1860, being the next April after the act took effect.' Any other construction leads to absurdity, and imputes to the Legislature the enactment of a farce under all the solemn forms of legislation.

An election held in April, 1860, would be a full compliance with the law, and, no excepiti on being taken on the ground that it was not so held, we must presume it was then held, and the officers duly elected.

The first error therefore is not well assigned.

The other errors assigned raise the question whether riparian ownership of lands along Muskegon lake is to be governed by the law applicable to tide waters, or substantially by the common law rule applicable to fresh water streams above the ebb and flow of the tide?

The plaintiff below appears to have been the owner of fractional section eighteen, T. 10 N. of R. 16 west, bounded, according to the United States survey of the public lands, by the water line of the lake. The section was made fractional by the waters of the lake occupying a part of what would otherwise have fallen within its lines. He had executed a mortgage of this fractional section, which had been foreclosed in the United States Circuit Court for the District of Michigan. Either about the time of the mortgage or afterwards, and before the foreclosure, he had erected a saw-mill and other buildings in the shallow waters of the lake, about twenty-nine rods from the margin or meandered line of the section, but within the area which, but for the water, would have been within the lines of the section, and at or a little beyond the point where a sand bar, extending from the land, sunk below the water: the depth of the water where the mill was built being about two feet. This sand bar at the time the min was built furnished the road way to, or very nearly to, the mill, but in subsequent higher stages of the water was covered, and a road way was made of slabs to the land, and the space around the mill, or what is commonly known as the mill yard, was formed by slabs and refuse .stuff from the mill. Along the sides of the bar and about the mill the bottom was a soft and muddy deposit, in which grass and rushes grew.

The plaintiff in error (defendant below) justified the taking of possession and the ejecting of the plaintiff below under a writ of possession issued in the foreclosure suit.

The evidence in the case tended to show (and upon this there appears to have been no dispute) that Muskegon lake is about six miles long, with an average width of about two and a half miles; that “the outlet from it into Lake Michigan is about sixty rods long”; and though the evidence is silent as to the width of the “outlet,” yet it is evident from this language that the lake itself does not extend.to Lake Michigan, but that it discharges its waters into the latter through a comparatively narrow passage, called an outlet, and that this is about sixty rods long. But “the level of the lake is affected by the level of Lake Michigan, and rises and falls with it.” — It does not appear by the evidence whether a distinct river channel (of Muskegon River, which flows into this lake and through it to Lake Michigan) can be traced through the lake. Such are the facts appearing in the case; and it is difficult to conjecture how any other facts which might be made to appear could alter, the effect of these upon the question whether this lake is to be considered a part of Lake Michigan. And though it was admitted by both q> arries that, “for the purposes of the trial, Lake Muskegon should be considered an arm or estuary of Lake Michigan, and part and parcel thereof, and not as a widening or continuation rof Muskegon River,” I am inclined to consider this rather as the admission of a conclusion of law from the facts, than as a mere admission of fact. Whether this lake is to be considered a part of Lake Michigan, or as a widening of the Muskegon River, so far as it might be material, would be a question of law to be decided upon the facts of the case, and no admission of the parties could bind the Court as to the law. The lake in question might partake of the characteristics of both, and the question would then be which predominates. And upon the assumption that a different rule is to be applied to each — which I do not intend to be understood as admitting — I should be inclined to hold that this lake, so fat as its character can have any bearing upon the question of riparian ownership, is to be treated as more properly a widening of the Muskegon River, or a separate lake, than as a part of Lake Michigan. The only circumstance which I have been able to discover tending to give it the character of the latter, is the fact that it rises and falls with it. If this fact were sufficient to make it a part of Lake Michigan, then it is difficult to see why every other stream, large or small, which empties into that lake, should not be considered a part of it so far up as it is affected by the rise and fall of the lake. The rise and fall of Lake Michigan and the other great lakes- of the same chain is not a tide occurring at regular intervals, like that of the ocean, nor does it arise from the ;same cause. And though it is probable their waters may be slightly affected by lunar attraction, and a very minute tide may perhaps be detected by a long and careful course of observation with accurate instruments; yet the Court must judicially notice that it must be too slight to be recognized by ordinary observation, or to serve any practical purpose in determining the extent of riparian ownership. This fact was judicially noticed in Lorman v. Benson, 8 Mich. 18. Courts must also be presumed to be so far acquainted with the laws of nature, as to .enable them judicially to determine that the rise and fall of ¡these lakes is governed mainly by the same causes which affect the rise and fall of tbe rivers which flow into them, and which rise and fall more than the lakes themselves; and that all the connecting straits between the lakes, such as the straits of Ste Mary (or Ste Mary’s river), the St. Clair and Detroit rivers, must, of necessity, rise and fall with the lakes which they connect. It is a matter of public notoriety that tlie waters of Detroit River vary in height at different, but irregular periods, to the extent of several feet from this causej -and quite as much as those of Lake Michigan or Muskegon lake are shown to vary. Tet we all held in Borman v. Benson that the common law rule applicable to streams above the ebb and flow of the tide applied to that river, and I have not been able to discover any fact or circumstance in this case sufficient to make a substantial difference in principle between that case and [the present. I am entirely satisfied with the principles established by that case, •and think them substantially applicable to the present. Whether the riparian ownership extends to the center of the lake is a question not involved in this case; the only question being whether it extends to the place where the mill is erected, which is in the shallow water of the lake some twenty-nine or thirty rods from the shore, on ground which is susceptible of beneficial private use and enjoyment as land. The real question is whether the ownership of section eighteen bordering upon the lake carries with it the ownership of the locus in quo, not whether it extends beyond, or whether its outward limits in the lake can be defined with precise accuracy. But if the water continues so shallow as to render the lands under it susceptible of beneficial private use to the center line of this narrow lake, then I have no hesitation in saying I think the riparian ownership extends to such center line, unless indeed there may be intervening islands wMch the government have shown an intention to reserve from the grant of the main land, by surveying them as separate tracts, in which case the riparian ownership would extend only to the center line between the island and the main land.

If the water becomes so deep in approaching the-center of the lake as to render the lands under it inca, pable of such private or individual use, the question of' ownership, beyond where it is available for such purpose, becomes as barren as the use itself; and is of no practical importance whatever. But to deny all riparian ownership, under the shallow waters, because its outward limits in the-lake can not, a priori, without reference to the facts of the particular case, be defined with a precision which shall settle-all other eases, would be fextremely unphilosophical, and contrary to the principles and analogies of the law in other-cases. There are many classes of cases, especially where the-question is between the rights of individuals and those of the public, in which the precise line can not be drawn by any general rule applicable alike to all cases. But the law does not therefore deny the existence of both public and private rights, nor either of them: and the courts, admitting the existence of both, seek to, determine the question between them upon the facts of the particular cases as they . arise.

I do not mean to say that the ownership of the tract here in question, or any other tract bordering upon the lake, must necessarily extend into the lake in the direction of the side lines of the tract: this might depend upon the shape of the lake and the relative rights of adjoining owners. But no such question arises here, as will readily appear by reference to the map attached to the record. When the-question arises between adjoining owners, it will not be found difficult of decision within the principle of adjudged eases..

But this riparian ownership does not’ carry 'with it the-right to the exclusive and unrestricted use of the lands ordinarily covered by the water; as in the case of rivers,, that use must in all’ cases be subordinate to the paramount public right of navigation, and such other public rights as may be incident thereto. In other words, all the private or individual use and enjoyment of which the land is susceptible, subordinate to, and consistent with, the pub-lie right, belong to the riparian owner as against any other person seeking to appropriate it to his individual use.

These principles, when applied to Muskegon Lake, can no more interefere with the public right of navigation than when applied to rivers. In both cases the ownership is equally qualified by, and subordinate to, the rights of the public. In fact, navigation is much more likely to be benefited than injured by the application of these principles. Wharves and other similar erections are essential to the interests of navigation; and if the bed of the lake -to high or. low water mark were vested in the State, no private owner could extend a wharf one foot, from the water line without becoming a trespasser, and incurring the risk of losing his improvements, though navigation might be aided, rather than injured by it; while, ¡by admitting the riparian ownership as above explained, individual enter, .prise is stimulated to improvement, and the public interest is subserved. The public, through their proper authorities, have always the right to restrain any encroachments which may be injurious to the public right, and to compel the removal of any obstruction or impediment, as weE as to punish the offender, to the same extent as if the bed of ■the lake were vested in the State.

I am not aware that the State or the Federal Gi-overn!ment has at any time asserted any right or claim to the beds of the lakes more than to those of the rivers, and I ’think the same principles of riparian ownership apply equally 1 to‘both. I speak here of the small lakes within the State, because the large lakes on our borders are not involved in the present case — though. I am not aware that the State or the United States has ever asserted any claim with respect to the one more than the other, and I must frankly admit that I have not, as yet, seen any sound reason for •making a distinction based upon a difference of size between lakes more than between rivers: — Jones v. Soulard, 24 How. 40 — nor because some may be a state or national boundary, while others are not. But without expressing any opinion upop the large lakes on our borders, I think the general understanding and common usage of the country have as clearly recognized the principles of riparian ownership with reference to the lakes as to the rivers within the State, and that this general understanding and common usage have been constantly acted upon: and that c'apital and labor to a very great extent have been expended on' the faith of ¿them can not admit of a reasonable doubt.. Tq repudiate this common usage at this late day, by creating an arbitrary distinction which has no foundation in the nature of things, and to recognize in the State or the United States a proprietorship in the beds of the hundreds of lakes and natural ponds within her limits, would, in my opinion, be an unwarrantable interference with private property, and do incalculable mischief.

These lakes and ponds are scattered over almost all parts of the State; they impart to the landscape the charm of picturesque scenery; their banks are often selected as favorite sites for residence, and command a high price; these considerations entered into the original purchase from the Government, and every subsequent purchase. Much, and in many cases most, of the value of these locations, and of the residences upon them, consists in the beauty of the prospect which the lakes afford. But if the land under them belongs to the State or the Federal Government, any man may go into the shallow water a few feet from the shore and erect in front of such dwellings, mills, fishing houses, or such other buildings as his profit, convenience, or malice may dictate, and thereby destroy the beauty of1 the prospect and the value of the property, and the owner has no remedy but as one of the public at large. The Attorney General could not well interpose for the protection of the owner’s private interest alone, and the public-sight would not in general be impaired.

Some of these lakes form no part of a chain of navigable waters, and are not susceptible of public use for purposes of navigation. Some of them are entirely enclosed by the lands of a single owner. If the bed of the lake belong to the State or the United States in one case, I do not see why it does not equally in others wherever it has been meandered by the public survey. Some startling consequences would flow from such a doctrine, which it is unnecessary here to notice.

There is much good sense in the observations of the Supreme Court of Ohio in Gavit's Adm'rs. v. Chambers, 3 Ohio, 496, and they have^ met with the very general assent of the Courts, especially in the Western States. And though these observations were applied to a river, they are, I think, equally applicable to the lakes; and if 'the beds of these lakes are to .be treated “ as unappropriated territory, a door is opened to incalculable mischiefs. Intruders upon the common waste would fall into endless broils amongst themselves, and involve the owners of adjacent lands in controversies innumerable. Stones, soil, gravel, the right to fish, would all be subjects of individual scramble, necessarily leading to violence and outrage.”

I am' therefore well satisfied that both public and private interests are best subserved by recognizing the principles of riparian ownership in respect to the lakes, substantially to the same extent as applied to rivers.

The charge of the Court below, applying to Muskegon Lake the law applicable to tide waters, was erroneous. The judgment must therefore be reversed, with costs, and a new trial granted.

Manning J.:

On the trial it ivas admitted that Muskegon Lake is “an arm or estuary of Lake Michigan, and part and parcel thereof.’’ The charge was based on this admission, and its correctness must be tested by it.

In Lorman v. Benson, 8 Mich. 18, the common law rule, that gives to the owner of land on a river above tide water the bed of the stream to the middle of the river, was held applicable to the Detroit river, which differs from ordinary rivers only in that it connects two lakes— St. Clair and Erie — having its origin in one and terminating in the other.

To apply this rule to our large lakes, it seems to me, would be absurd. To hold, for instance, that a deed of an acre of land, in a square form, bounded on one side by Lake Michigan, conveyed as an incident to the grant a strip of land of the same width extending forty or fifty miles into the lake, with the sole right to the grantee to take fish in the waters covering the same— for the ownership of the bed of a stream carries with it this right, Hooker v. Cummings, 20 Johns. 90; Angel on Watercourses, § 61 — would be an anomaly so great that it would only need to be stated to be universally condemned.

It does not follow from this, however, that the owners of land on our lakes have no greater rights in the lakes than the citizens of the State at large. Whether they have or not is the present subject of inquiry. As individuals, as citizens of the State, they have not. But there may be rights connected with the land itself, growing out of location, public policy, or having some other origin, to which they may be entitled, and which are not common to the citizens of the State at large, or to persons owning-lands not thus situated.

We have no legislation on the subject: and in the absence of all legislation, the inquiry is, what are the rights of the citizens of the State in our great lakes? They are the rights of navigation and of fishing. These rights are common to all, whether they own land on the lake shore or not. At the same time it must be admitted, that the owners of such lands have greater facilities for the enjoyment of these rights than others. In this respect they may be likened to a person residing on a highway, while their fellow citizens generally may be likened to a person residing at a distance from such highway, and who has no means of approaching it except over the land of another. Both have equal rights to the use of the highway, when upon it; but the first, by reason of his residence, has a facility for using it that the other has not.

But the similitude fails, or does not hold good, when we attempt to press it farther. The highway spoken of being the work of man, all rights connected with it are artificial, or conventional. They have no existence of themselves. Whereas the lakes are the work of our Creator, and our rights to them as highways and fisheries are natural and not artificial rights, and may therefore be said to be self-existing rights. The same may be said of the facilities for their enjoyment peculiar to the owners of land on the lake shore. These are also natural and not artificial rights, and like all natural rights, cannot justly be taken from them by the State unless necessary for the good of the body politic, to which all natural rights must yield. They are natural rights incident to location, and of kin to the right of the owners of such land to the lake breeze, or to the exuberant fertility of the soil, should it prove to be more luxuriant than the soil back from the lake. No one would for a moment think of taking away either of these rights from the owner of the land. And yet the rights of which we have been speaking are as truly rights as either of these.

If what we have said be correct," a well settled principle of law steps in here to aid the plaintiff in error. It is this: that where the law gives a right it gives with it all minor rights necessary to its enjoyment. Wharves and piers are almost as necessary to navigation as vessels, and ship-yards or places for the construction of vessels are indispensable. May not therefore the owner of the shore, under this rule, use the adjacent bed of the lake for the construction of ways, for the launching of vessels, or of wharves and piers for vessels to lie at and receive and discharge their cargoes? The right of navigation without such right would be incomplete.

It seems to me on principle as well as reason, that the owner of the shore has a right to use the adjacent bed of the lake for such purposes. Wharves and piers must be constructed by some one, and by whom if not by the owners of the adjacent shore? No one else can construct them unless it should be the State, or some one under its authority. But has the State that right? Can the owner of the shore be cut off from the lake against his consent, without taking from him those natural rights of which we have spoken ?

Without deciding this point, the doubt suggested by it may suffice for the custom that has so long prevailed that it may now be considered the settled policy of the State, for the owners of the shore to construct such works and to. use the bed of the lake for that purpose. In a government like ours such is undoubtedly the true interest of the State. It stimulates individual enterprise, encroaches on no private right, leaves the public rights of navigation and fishing unimpaired, and turns to a good account what would only be a profitless monopoly in the hands of the State.

Mills and manufactories, unlike wharves and piers, do not add to the conveniences or usefulness of the lakes as highways or thoroughfares; and yet, they seem to me clearly to come within the state policy mentioned. A. different policy as to them would depress rather than encourage enterprise, and render that unproductive which otherwise might be made useful. I am therefore of opinion that all such constructions connected and used with the shore, pass as an incident or appurtenance of the shore in a conveyance of the latter.

The other questions in the ease will be considered in the case of Carleton v. The People, now before us.

Campbell J.:

I concur entirely in the views of my brother Christianey. I think the riparian proprietor is entitled to all the control of the bed of the water which can be exercised without damage to the public interest. His right is proprietary ánd absolute. And while I think that the particular place in controversy is no part of Lake Michigan, I do not regard the distinction as at all material. Usage as well as reason extends to the one as well as to the other. Navigation in our day can not do without wharves and similar conveniences for loading and shelter, and instead of being universal nuisances they are in general indispensable aids to it. The inquiries concerning ownership in deep water, far from shore, can never become practical questions, and it can not make any difference how they are settled. But wherever use can be and is made of the bed of the water, in improvements near the shore, in waters not governed by the artificial common law rules of tide water ownership, I think the rules applicable to fresh water rivers are more reasonable and just, and are certainly more con-, formable to the common understanding and usage. They preserve all valuable public privileges, and interfere with no rights whatever.

Martin Ch. J.:

Except upon the first error assigned — respecting which my views will be fully expressed in the case of Carleton v. The People, now under consideration — I concur fully in the views of my brother Christiancy. I think the rights of riparian proprietors upon our interior lakes — and I regard Muskegon Lake as such, and not as an arm of Lake Michigan, notwithstanding the stipulation iff this case (which, although it must be taken for true, I regard as immaterial) — ■are the same as those of proprietors upon our navigable streams. They have the right to construct wharves, buildings and other improvements, in front of their lands, so long as the public servitude is not thereby impaired; they are a part of the realty to which they are attached, and pass with it. Certainly, no one can occupy for his individual purposes the water front of such riparian proprietor, and the attempt of any person to do so would be a trespass. When, therefore, Ruddiman erected the structure in controversy in the shallow water of the lake, and upon his water front, it was substantially an erection upon his own land, and its use and ownership were dependent upon his ownership of the land to which it was appurtenant. He made it a part of his real estate as much as though it had been a»- additional story erected upon a building situated upon the soil not covered with water. It was a part of the land; appurtenant to it, and to be enjoyed with it. This he can not deny; nor can any one question it whose soil or possession was not thereby invaded. As between individuals, a wharf, and the structures upon it, attached to the soil of a riparian proprietor, are as much a part of the real estate as is a building erected upon the land over which the water does not flow, and by the sale of the land they are conveyed. There is no analogy between such title and the right of fishery, and no argument can be drawn from the one to support the other. Each depends upon separate principles of the law.

Judgment reversed.


author: Campbell J.:

text:
    John S. Smith v. Charles M. Stoddard and Others.
    Where unlawful interest has been paid upon money loaned, and a new security is afterwards taken for the principal, the debtor is not entitled to have the amount of the interest so paid deducted when suit is brought on the new security.
    But if in the new security a sum is included for unlawful unpaid interest, the security to the extent of the unlawful interest is without consideration.

      Oh an usurious contract tbe plaintiff may always recover interest up to tlie highest legal rate not prohibited by the statute, if such are the express terms of the. contract.

      Heard April 25th and 26th.

      Decided May 6th.

    Appeal in Chancery from Wayne Circuit.

      Waltcer and Kent for Complainant:
    Usury in the previous transactions does not affect the. $500 of principal in the note in suit: 3 T. B Monr. 346; 3 J. J. Marsh. 682; 6 Metc. 296; Craig v. Butler, 9 Mich. 21.
    The $49 it is insisted, on the evidence, was given for legal interest. But if not, it is claimed to be still recoverable. A note given for a prior liability is a payment :• at least if the creditor choose so to regard it. The fact that the note is given for usury - due on a previous contract does not show that it is without consideration: 30-Me. 118. The usurious contract, not being void under our law, could have been enforced in another state, though not here; and the debtor, by giving the note, is discharged from his liability of being compelled to pay the usury by a suit in some other state: 32 N. H. 582 ; 7 Metc. 14; 12 Vt. 464.
    Is a note given in payment of usurious interest void because usurious ‘ in the sense of our statute ? There is a sense - in which a note given in payment of usurious interest, may be said to be given upon a contract whereby a greater rate of interest has been reserved, than is allowed by law. But in precisely the same sense the same thing may be said of the note of a third person given in payment of a usurious contract. But such a note is not usurious: 9 Mich. 21. It would seem, then,, that the words of our statute “ made or given for or upon a consideration or contract,” are to be understood not in their broadest meaning, but in a more restricted sense. They must be understood as referring to the giving-of a note or bill in connection with the making of an usurious contract, and as a part thereof, and not to a. note or bill given .in payment of a previous usurious contract. With this construction our statute has not •altered the law as to what contracts are usurious, and notes given in payment of usurious contracts are not so. 8 N. H. 276; 9 Mass. 46; 9 Mich. 21.

      Knight and Jennison for defendants :
    The abrogation .of the penal features of the statute only open it to more liberal construction to effectuate its policy: 12 Ohio, 153; 11 N. Y. 375; 3 Metc. 526.
    When usurious paper is renewed by giving new paper, in payment or as a substitute for .the usurious paper, unless 'the new paper is entirely purged of the usury, the statute applies, and a deduction- is to be made of all the usurious interest which may have been reserved or taken: 15 Mass. 96; 10 Mass. 121; 22 Me. 184; 25 Me. 33; 31 Me. 415; 3 How. 62; 8 Cow. 685; 9 Cow. 647; 20 Johns. 285; 6 Wend. 415; 21 Wend. 415; 21 Vt. 123; 5 N. H. 376.
    The statute is not avoided even where the paper taken is that of a third party: 30 Me. 120; 2 N. H. 335; 1 Greenl. 167; 25 Me. 33.
   Campbell J.:

This is a Bill filed to foreclose a mortgage, and the defense of usury is set up. The mortgage in controversy is for $549, and no usury is. alleged to have been exacted or agreed upon under it, but the transactions complained of were anterior. It appears that a loan of $500 was made in November, 1856, and another of $300 in April, 1857, on both of which unlawful interest was paid. That in July, 1857, all the back interest was paid up, and the principal reduced to $500, for which a new mortgage was given, the old securities being cancelled. Subsequently, $300 of this principal was paid up, and unlawful interest was also paid in money from time to time. Additional loans of $100 and $200 were afterwards made in 1858, on which excessive interest was in like manner paid. On the 18th of July, 1859, this entire principal of $500 remained unpaid. The mortgage in controversy was, on that occasion, given for $549, which was for the principal due, and for due bills held by complainant for back interest. The old mortgage was released, and the new one given on a part only of the premises covered by that. Defendant Stoddard is the only borrower throughout.

These are the facts as we deduce them from the pleadings and evidence, and are all that we deem material to dispose of the case. There are several matters in proof which we have not referred to, because we do not regard them as important.

The mortgage in suit is a new security, given with its accompanying note upon a complete settlement of all the former transactions. The sum of $500 embi’aced in it is money actually lent by complainant to defendant. It includes no direct usury, because the principal had never been reduced or intended to be reduced; all payments which had been made, having been expressly made upon interest. It appears that the ixsurious interest was always either paid in money or put in .the shape of separate due bills and amounts. We do not think, as to this sum of $500, that there can be any deduction allowed. When parties have actually .paid the usurious interest, and then come to a bona fide settlement, and make new securities which include nothing but an actual loan, and are not meant as mere evasions, we do not think the new contract can be regarded as either usurious in itself, or based on a usurious consideration. The statute does not contemplate the recovery back, or allowance of xxnlawful interest once paid, unless in a suit upon the contract under which it was exacted. A new security, between the same parties, embracing not only a valid debt, but also a claim for unpaid usurious interest, would undoubtedly be founded to that extent on a usurious consideration, and therefore liable to abatement. But the abatement cannot, we think, under our statute, go further. The law does not absolutely avoid contracts for usury, and if parties completely perform them they are remediless.

The only question, therefore, is, whether the sum of $49 included in the mortgage is a valid indebtedness. It appears to have been made up entirely from due bills for back interest. As the previous mortgage for $500 called for ten' per cent on its face, and as the parties seem to have considered — although erroneously— that the $300 last loaned were secured by it, there was no interest which could be embraced in these due bills except the excess beyond ten per cent. This excess was not lawfully recoverable, and did not, therefore, make a valid consideration for the new securities. It must therefore be deducted.

It is claimed by the defendants that, where usury is taken, the interest lawfully recoverable cannot exceed seven per cent, although ten per cent may be legally bargained for in other cases.

The statute allows only a deduction of that which exceeds what might be legally bargained for. Nothing is usury unless it exceeds ten per cent, and nothing but usury can be considered in reducing the judgment; — or, to speak more correctly, the plaintiff may always recover interest up to the highest legal rate not prohibited by the statute, if such are the express terms of the contract.

The decree must be so modified as to credit the defendants with $49 and interest at ten per cent from the date of the mortgage. They are also entitled to the costs, of this Court, but not of the^Court below.

The other Justices concurred.


author: MArtin Ch. J.:

text:
    William S. Maynard v. Ebenezer J. Penniman.
    Suit against the maker and endorser of a promissory note. Defendants pleaded separately, and the issue as to one was tried, and judgment rendered against Mm. On error, the record not showing that any objection was taken in the Court below to tho trial of the separate issue, 'it was held that it must be presumed either that the action was severed by consent, or by the putting off of the-trial as to himself by the other defendant.
    Error will not be presumed: it must be made to appear affirmatively.

      Submitted on briefs October 16th, 1861.

      Decided May 6th.

    Error to Wayne Circuit.
    Penniman brought suit against Maynard and one Hawkins, upon a promissory note made by Hawkins and endorsed by Maynard. The defendants pleaded severally. The record as transmitted to this Court shows only the issues in the case, and that the one on Maynard’s plea was tried and judgment rendered against him.

      O. Hawkins, for plaintiff in error.

      Hólbrooh cfc JBishop, for defendant in error.
   MArtin Ch. J.:

The objection that there was no disposition made of the issue as to Hawkins, and that the jury was sworn only to try the issue as to the plaintiff in error, is not well taken.

The statute (§§4160, 4172) permits the holder of a bill of exchange or promissory note, instead of bringing separate suits against the makers, drawers, acceptors and endorsers of such bill or note, to include all or any of the parties in rone action, and to proceed to judgment and execution as though all the defendants were joint contractors: it prescribes the mode of procedure, permits severance in pleading, allows the plaintiff to discontinue as to a portion of-the defendants, in proper cases, and to take judgment against the residue; allows co - defendants to be witnesses for or against each other in all cases where they mighty have been witnesses had suit been brought in the form heretofore used, and provides (§ 5170) that it shall not be necessary for the plaintiff to include in the same record a judgment against all the parties to such bill or note, but that judgment may be entered against any of the parties thereto whenever the plaintiff would be entitled to judgment if suit had been commenced against such parties only; and that if the trial or hearing of such cause be put off by any of the parties to such bill or note, or if a default shall have been obtained against part of the defendants, the plaintiff may proceed to the trial or hearing against the other parties, in the same manner as if suit had been commenced' against such other parties only; and the action shall thereby be severed. While the plaintiff may under this statute have a joint judgment, or may have several judgments, at his option, against the parties to the bill or note, in the event that all the defendants shall have plead issuably to the declaration, and in case part have pleaded and part made default, yet in the latter case, and in.case a part of the defendants put off the trial as to themselves, the plain.tiff may proceed to judgment as to the others, and thereby sever the action if he so elect. This is optional with himself. But when issue is joined as to all the defendants, and all are ready for trial, the plaintiff' can not sever, but must proceed to trial against all, although he may move for judgment against only a portion of those liable to it.

In the case before us, issue was joined upon the pleas of both Maynard and Hawkins, and the Court should have proceeded upon these issues as one unless some one of the statutory reasons existed for a severance of the action. Whether such reason did or did not] exist we are not informed by the record. Hpon this subject it is entirely silent: no objection appears to have been made in the Court below to the trial of the separate issue upon Maynard’s plea, and no exception was taken to it. We can not presume error: it must be affirmatively made to appear; and upon this record the presumption is that the action was severed either by consent of the plaintiff in error, or by the putting off the trial as- to himself by Hawkins. Every intendment should be in favor of and sustain, rather than reverse, the judgment of a Court of general jurisdiction.

The judgment is affirmed, with costs.

The other Justices concurred.


author: Manning J.: Campbell J.: Martin 'Ch. J.:

text:
    Temperance White and another v. Alexander C. Bailey.
    The relevancy of evidence depends on the issue to he tried.
    Where a will which disinherits the testator’s children is assailed on the ground of mental incapacity, and it appears to have been made by a feeble old man while residing with the beneficiary under it, it is competent for the propounder to 'prove all those facts which might have contributed to alienate the testator’s parental feelings, and to create in his mind a dislike for his children. Such a state of mind would furnish a motive for giving his property to another, and tend to repel the suspicion of undue influence.
    •A medical witness having testified to seeing the decedent some two or three months before the making of the will, was asked “Prom what yon saw, what was his mental capacity?” This question must be understood as referring to the mental capacity to make a will, and is incompetent, because presenting a, question of law, and not of medical science. Per Manning J., Martin Oh. J, concurring.
    Neither medical experts nor other witnesses can be allowed in any case to give an opinion upon mental capacity or condition, without first showing the circumstances and facts upon which the opinion is based.
    If defendant after the plaintiff’s rebutting evidence is closed, recalls one of his own witnesses to give evidence which would have been proper when the witness was on the stand before, it is discretionary with the Court to allow the evidence or not.
    A surety in an appeal bond is not a party to the appeal, nor one in whose immediate and individual behalf the appeal is prosecuted; and was not therefore disqualified from testifying for the appellant under the Revised Statutes:— (Comp. Ii. § 4339).
    The issue was submitted to a jury whether an alleged will was the last will and testament of the decedent, and whether at the time of executing it he was of sound and disposing [mind, and not under the undue influence of the devisee named therein. The jury returned a verdict that the will was the last will and testament of the 'decedent, and that at the time of executing it he was of sound disposing mind and memory, and capable of disposing of his property by will. Held that the verdict covered the whole issue, and necessarily negatived all undue influence.

      Heard January 17th.

      Decided May 6th.

      Error to Kent Circuit.
    Alexander C. Bailey presented to the Probate Court for Kent county, for probate and allowance, an instrument purporting to be the last will and testament of LutherMudge. On the hearing in that Court, Temperance White and Mary Blood, daughters of said Mudge, appeared and' opposed, and the. will was disallowed. Bailey appealed to the Circuit Court, where an issue was directed by the Court to be made up and submitted to a jury. The issue and the case will be found stated in the opinion of Justice Manning. On the trial, considerable evidence was given on behalf of Bailey, under objection, tending to show- that Mudge considered himself ill-treated by his children, and kindly treated by Bailey; that he left the house of'Mrs. White and went to Bailey’s to live; that White spoke of" him as a dirty, filthy old dog; that in his last years he was supported as a town pauper, and White called on. the public authorities for pay for keeping him while at Ms house, and both Mr. and Mrs. White declared they would not keep him another year. The questions arising upon evidence rejected will appear by the opinion.

      C. H. Chase and J. T. Holmes, for plaintiffs in error.,

      JBement <& Moore, for defendant in error.
   Manning J.:

The relevancy of evidence depends on the issue to be-tried. Some cases admit of a much wider range than, others. Where the motive of a person for doing an act out of the ordinary course of events is a legitimate subject of inquiry, under the issue, all the surrounding circumstances and influences that might have contributed to or caused such motive may be inquired into.

The plaintiffs in error, Mrs. White and Mrs. Blood, are children of Mudge, the testator. His only children, it is to be presumed, as no mention is made of any others. 'Bailey, the defendant in error, and to whom Mudge gave all his property, was in no way related, to him. The testator left White’s family, in which he had been residing, and went to live with Bailey some two, three or four months, certainly not longer than four months, before his death; and while at Bailey’s, and on the l'8th day of August, 1858, made his will, and died in two or three days thereafter.

By direction of the Circuit Court an issue was made in that Court to determine the following facts: 1st. The domicil of Mudge at the time of his death: 2d. Whether the alleged will was his last will and testament, and 3d. Whether he was of a sound and disposing mind at the -time the same was made, and was not under the iindue influence of Bailey or some other person at the time.

It was on the trial of this issue that the several exceptions to the admission or rejection Lof evidence we are called to pass upon were taken.

The simple fact that the testator had by his will disinherited his children, and had given his property to one not related to him by blood or marriage, is so repugnant to parental feeling, and out of the course of things, as to excite more or less suspicion in the mind that all was not right. And when in connection with this unnatural ■act of the testator, it appears that he was an old man, infirm in health, and had but a few months previously left the house of a daughter and gone to live with Bailey,' at whose house the will was made but two or three days before his death, this suspicion is so far strengthened by these additional circumstances as to give it the semblance of reality. Altogether they would, and unexplained should, have more or less influence with the jury: The following questions or others of a like character would most likely be found suggesting themselves to the mind; Why did the testator disinherit his children? Why did he deave his daughter’s house and go to live with the appellee but a short time before his death? Why did he put off' the making of his will until a day or two before lie died?' Were these acts his — the offspring of his own free volition? Or were they the production of artifice and cunning, practiced on an old man by some one behind the curtain ? And, if we are to judge of the tree by its fruit, who, as the event has shown, had a deeper interest in the fruit the tree has borne than the appellee?

Now aE the questions put and answered, to which exceptions were taken, elicited facts tending to answer these suggestions, and to remove the influence the untoward circumstances we have stated would, unexplained, have had on the jury; or to prove the sound and disposing mind of the testator. The object of most of the questions was. to prove the ill-treatment of the testator in' his old age by-his children. And although a wide range was allowed for that purpose in some of the questions put, we do not think the Court erred therein. Men’s minds are so differently constituted and operated on, that what will influence the action of one wiU frequently have no influence on another. Hence it was sufficient to warrant the question, if the thing sought to be proved might have contributed to alienate the testator’s parental feelings, and to create in his mind a dislike for his children. Such a state of mind would furnish a motive for giving .his property to. another, and repel all suspicion of undue influence.

' What we have said disposes of some fifteen exceptions; but there are others that we must notice separately.

One Doctor Blumerick, was examined as a witness for the plaintiffs in error. The Doctor testified that he knew the testator, and had doctored him at Mr. Blood’s, and. that he saw him frequently untü within two or three months before his death; that he first saw him about nine or nine and a half years before the trial, and then doctored him for inflamation of the lungs, connected with a pain, in the head; that he discovered lightness in the head;-, that he often saiv him two or three years after that and talked with him, and that he appeared silly and would not pay him; that he sometimes rode with him in a buggy, and sometimes saw him on foot as he was coming to town or was going home; that sometimes when he saw him he would ask him to pay him for his medical services, and that he would not; and that he appeared like a silly old man; that he visited him at White’s about a year and a half before, and that his impression was that he was not sick, but forgetful, weak minded, and talked nonsense, and that he had not seen him since. The witness ’ was then asked: From what you saw, what was his (Mudge’s) mental capacity?

The question we think was properly excluded. It asked lor the doctor’s opinion of the mental capacity of the testator some two or three months before he made his will. Mental capacity for what? To make a will, for that was in issue. This is a question of law, and not of medical science. It is for the jury, under the instruction of the Court as to what is sufficient mental capacity to make a will, to decide on its existence or non-existence when the will was executed, from the facts testified to by the witness, and not from the witness’ opinion regarding such tacts. The jury, and not the witness, are to draw the conclusion from the facts stated by the witness. The opinion of a physician as to the existence of disease, or a particular malady, and its effect upon the mind, would 'be evidence. But a physician’s opinion regarding mental capacity generally, or the mental capacity necessary to make a will, is, in the eye of the law, no better than that of any other person.

A Doctor Allen was also examined as a witness for plaintiffs in error. After his examination, and after the plaintiffs in error, who were defendants in the Circuit Court, had examined their witnesses, and the plaintiff had closed his rebutting evidence, the doctor was recalled by the plaintiffs in error, and asked the following question: Were there any symptoms of paralysis . about Luther Mudge ? Please state the appearance and effect upon Mudge of the nervousness you referred to in your former testimony. The questions being objected to were ruled out by the Court. They should have been asked the witness when he was on the stand and gave in his evidence, or at all events before the rebutting testimony was closed. It was discretionary with the Court, at that stage of the trial, under all the circumstances, to receive the evidence or not; and there' is nothing in the bill of exceptions showing the discretion was not wisely exercised.

Tne objection to Chubb . as a witness on the ground that he was surety on the appeal bond given by the defendant in error, was properly overruled by the Court. He was not a party to the appeal, nor was it prosecuted in whole or in part in his immediate and individual behalf: Comp. L. §4339.

The only remaining question is, whether the verdict of the jury warrants the judgment of the Court admitting the will to probate. The jury found the will in question was the last will and testament of Luther Mudge deceased, and that at the time of executing it he was of a sound and disposing mind and memory, and capable of disposing of his property by will. But they did not find whether it was “made under undue influence from said Bailey or any other person.” They could not have found as they did, that the will in question was the last will and testament of Luther Mudge, without at the same time having found that it was made of his own free will and accord, and not under or in consequence of any Undue extraneous influence. All such influence is necessarily negatived in finding the will to be his will. And the law is too well settled to need discussion, that where the issue found necessarily negatives the one not found, the judgment will not be reversed: — Brooks v. Delrymple, 1 Mich. 145 ; Law v. Merrills, 6 Wend. 268.

The judgment of the Circuit Court I think should, be 'affirmed, with costs.

Campbell J.:

I concur with my brother Manning in the conclusion that there was no error in the rulings and proceedings-below. But, so far as relates to the exclusion of Blumerick’s testimony concerning the capacity of the testator, I think there were good reasons for the decision beyond those relating to the mere form of the question, which is not in itself to my mind very conclusive.

Doctor Blumerick was introduced apparently as a medical expert, to give opinions not supposed to be receivable from others. Undoubtedly there are many cases in which medical witnesses can do this. They may sometimes, where a question arises upon the proper scientific conclusions depending on facts sworn to by others, give their opinions upon a hypothesis presented to them, as to what such facts denote. Before doing so, however, the witness must be examined as to his qualifications as an expert. But when he is examined concerning facts which have occurred under his own observation, and his opinion is required concerning the proper inferences from those facts, he occupies, as to the facts themselves, the same position with all other witnesses, although there may be some questions arising out of the facts which he can answer and which others can not. Upon questions of mental capacity even non-professional witnesses may give evidence, not only of specific facts and conduct falling under their own observation, but also of the impression they derived at the time, involving to some extent matters of opinion. The difference between them and those who in addition to being eye witnesses are also experts, is, that there may be peculiar indications which the latter-understand better, and concerning which they can express an opinion as scientific deductions, and not wore common sense inferences. But neither class can be allowed in any case to give an opinion upon mental capacity or condition, without first showing the circumstances and facts upon which that opinion is based. This is necessary for two reasons: First, it is necessary in order to enable other experts to determine whether the opinions expressed by the witness are correct, and to enable the parties to contradict them if wrong: Second, it is necessary in order that, if an opinion is given on a mistaken or perverted statement of facts, the truth may be elicited from others to destroy the foundation of the conclusions. And a third reason might be mentioned, which is that the Court and jury may know from his opportunities what means the witness had of forming any opinion at all. These are rudimentary principles which can not safely be departed from.

It is certainly very far from clear that in such a case as the one before us there was any room for the evidence of experts. The previous evidence of Blumerick — so far as it went — tended to negative any thing like insanity, and referred only to weakness arising from natural decay, and age. Without undertaking to lay down any inflexible rule, it certainly must, as I think, be very rarely true that experts can in such eases give a jury more light than can be derived from other intelligent eye witnesses. Such was the view taken in Dewitt v. Barly, 17 N. Y. 340; and such is the result of common experience.

In the case before us, Dr. Blumerick was asked, from what he saw on a certain occasion several months before the death of Mudge, what was the mental capacity of the latter. He had given no testimony whatever concerning any facts or appearances. It did not. appear from Ms evidence whether his attention had been called to this particular subject. In short he had stated no fact whatever which either a jury or another witness could apply or test. While there are many cases in which a want of capacity three months before a will is executed must indicate a continued incapacity, there are others which would not. Until it is known which of these appearances were relied on, -it could not well he determined whether an opinion — if otherwise competent — ought to be received in evidence. And until the facts were shown, it could not be determined whether the witness was competent to form any opinion whatever, or whether there was room for any inferences not within the unaided good sense of the jury.

Had the witness been fully examined concerning his. means of observation, and also concerning the facts he actually observed, it is possible that the question put, although somewhat loo broad in form, might not have been legally objectionable; and it does not seem to have been objected to on this account. But, standing alone, it was certainly immaterial what opinion any person had formed upon the condition of the deceased, because there was no legal basis shown on which it could be rested.

I concur in sustaining- the judgment.

Christianity J. concurred in this opinion.

Martin 'Ch. J.:

I concur with my brethren that the judgment should be affirmed. The question put to Dr. Blumerick was properly overruled, both because it was incompetent — the question at issue not being of mental capacity merely— and also because he had not shown that intimacy of knowledge of Mudge and of his capacity at the time of making the will which would enable him to testify either as an expert or in any other capacity. How far the testimony sought to be obtained from him is admissible, and under what circumstances, are questions upon which Courts somewhat differ; and I do not deem their consideration necessary, so long as the witness was not shown competent to give-it under any rule.

Judgment affirmed.