author:
Cooley Ch. J.
      Campbell J.

text:
    Isaac Altman v. Abraham Wheeler et al.

      ■Irial "before referee: Bill of exceptions: Special assignments of error. Whore exceptions-are taken on a trial before a referee, the bill of exceptions, when settled, performs the same offices for the purposes of a writ of error, as a bill settled by the Circuit Judge, when the case is heard in open Court. All the reasons requiring special assignments of error in one case apply equally to the other.,

      "What is a special assignment of error ? Exceptions were taken on a trial before the referee, and a bill of exceptions was duly settled. When the referee had filed his report, exceptions were also taken to that, and upon these and the bill of exceptions a motion was made to set aside the report. The Court de nied the motion, and the report was confirmed. The party then brought error, and assigned for error that “the Court overruled the motion to set aside the report of the referee, and confirmed the same.”

      Held, that this was not a special assignment of error, within the meaning of of rule 12, and therefore could not be considered.

      Heard April 13th.

      Decided April 20th.

    Erx’or to Lenawee Cix’cuit.
    This was an action of trover for an alleged conversion of certain fux-s.
    The case was referx’ed by consent. The referee reported against the plaixitiff below. Certain exceptions were takexx to the report of the referee and the action of the court, all of which, with'the errors assigned, are stated in the opinion.

      A. L. Millard, for plaintiff in error.

      Andrew Rowell, and O. A. Stacy, for defendant in error.
    1. There is in fact no special assignment of errors in this case as required by the rule. — Supreme Court Rules, No. 12; 7 Mich. 871/.

    The general assignment, that judgment should have been given for the plaintiff in error instead of for defendant in error, is invalid, and will authorize no action by the court. — 9 Mich. 250 ; 8 Mich. 77, 88 ; 7 Ind. 580; 1 Neman, 416.

    2. The first assignment of error is just as general as the second. The principle of the above decisions, it seems to us must hold that this is just as general, and no more a special assignment of error than the other.
   Cooley Ch. J.

This was an action of trover, which, in the court below, was sent to a referee, before whom the parties appeared and put in their evidence, the plaintiff taking several exceptions to the admission of evidence which were embodied in a bill of exceptions settled in due form.

The referee made his report to the Circuit Court, sp.fi-.irig forth at length his conclusions of fact, and his deductions of law that the plaintiff on such facts was not entitled to judgment.

The plaintiff filed exceptions to this report, and upon these exceptions and the bill of exceptions, moved the Court to set aside the report. The Court denied the motion, and rendered final judgment in favor of the defendant. The plaintiff thereupon brings error and assigns for error, first, that the Circuit Court overruled the motion of the counsel for the plaintiff to set aside the report of the referee and confirmed such report, and second, that the judgment was given for the defendants against the plaintiff, when, by the law of the land, it ought to have been given for the plaintiff against the defendants. _

Buie twelve of this court requires all assignments of error to be special, and it is not claimed by the plaintiff that the second assignment of errors complies with this rule, or can be of any avail to Mm in this case. The first assignment he claims is sufficient, because it is based upon the only order of the court below of which he complains.

The rule requiring special assignments of error has for its object the apprising the opposite party of the grounds of complaint in the proceedings of the court below, that he may prepare to meet them in argument, or to obviate them if they relate to errors or imperfections which can be cured before argument by amendment or otherwise.

This purpose is not accomplished by any assignment so general in form as to cover the whole record, and relate to numerous objections which may appear to have been taken in the course of the proceedings, without pointing out any one or more of them on which the party will rely. Such an assignment is calculated to leave the opposite party wholly in the dark as to the point he will have to meet, and he may find on the argument that his conjectures on the subject have been entirely at fault.

The Court, too, will be compelled to wade through the record in search of objections which may be supposed to be obscurely indicated in some portion of it, but to which their attention is not distinctly called by the allegations of error. And there is always more or less danger of mistaking the real points in the case; while the record will never, with sufficient certainty, indicate them, if it should afterwards become important to inquire what they were.

In the present case, it was competent for the party to assign error upon any one of the exceptions taken before the referee; and if he had relied on any one of them, it was as much his duty to do so as if the bill of exceptions had been one-settled by the Circuit Judge in a trial before him.

The bill of exceptions, under the statute, performs the same offices for the purposes of a writ of error as a bill settled by the Circuit Judge, when the case is heard in open court. And all the reasons which require a special assignment of error 'in the one case, are applicable with the same force in the other. The plaintiff might also have assigned error upon the overruling of each of his exceptions to the conclusions of the referee, provided they were aimed at such conclusions as were the subject of exception.

He has chosen, however, to assign only a general error to the action of the court in overruling his motion to set aside the report; a motion which covered the whole case. So that the first assignment of error has no greater definiteness in pointing out the error to be considered than has the second which is conceded to be too general. The defendant could not know whether the plaintiff would rely in this court upon some ruling of the referee upon a question put to a witness while on the stand before him, or upon some exception to the report of the referee, which the court concluded was not well taken.

The assignment of errors is so framed as to blend together the whole action of the referee and the Circuit Judge, and was evidently designed to give to the plaintiff the benefit of any fault that could be discovered in any portion of the proceedings; and it would be difficult to imagine a case more distinctly within the mischief designed to be remedied by our twelfth rule.

We are therefore of opinion that we cannot consider the errors insisted upon in the argument, and that the judgment must be affirmed, with costs.

Ohristiancy and Graves JJ. concurred.

Campbell J.

I should not dissent from the opinion of the majority of the court on a question of practice, if it did not involve the denial of any right of hearing to a pa,rty who has, as I think, in no respect deviated from any of our rules.

The errors which our rules require to be assigned are the errors supposed to have been committed by the Circuit Court. Where a case has been tried in that court, and the judge has made or refused rulings, each refusal or ruling complained of must be excepted to separately, and, if wrong, each is in fact a distinct error independent of the rest. In assigning errors of this sort, they may be assigned one by one, or, as held in Niles v. Rhodes, 7 Mich. 374, they may be included in a single assignment, which, in that case, was that the judge “gave the several instructions to the jury asked for by the defendant, and refused to give the several instructions, or any or either of them asked' for by the plaintiffs.” It would be difficult to make an assignment more sweeping, and yet it was rightly regarded by the court as a full compliance with the rule.

There is another class of cases wherein the Circuit Court, instead of trying the cause, simply reviews proceedings had’ before some other officer or tribunal, and determines upon the correctness of his rulings and findings. Thus a certiorari lies to a justice, and the errors complained of in his action are set forth in the affidavit. If the Circuit Court entirely affirms or entirely reverses his action, instead of assigning separate errors upon the points raised before the justice, the assignment is single, and complains of the single ruling of the Circuit Court in affirming or reversing the judgment. In Berry v. Lowe, 10 Mich. 9, where the affirmance was only partial, the error assigned was “ that the Circuit Court 'erred in holding that the justice’s judgment was erroneous in the sewal causes of error assigned in the affidavit for certiorari,” and this was held to be the correct form. As the Circuit Court there reversed the judgment below as to a part, and affirmed it as to a part, this was not technically true, for the court did not hold the judgment erroneous for all the causes in the affidavit, but allowed one of those causes to prevail. But this court held the assignment good, and declared that the correct practice here was to argue the case upon all the points raised by the affidavit, whether allowed or disallowed below, although only one party had complained, and although the judgment had been partially in his favor.

In these cases, as in such as we now have presented to us, the Circuit Court makes but a single ruling, and that comes up as an entirety. Its finding cannot be severed or divided up into its elements. The error consists in that one conclusion, and the assignment which complains of that is as accurate and as specific as an error assigned on any other single ruling. The principles of law involved in the rejection of a piece of testimony, or in ruling that there is no evidence to warrant a recovery, may be numerous and complex, but the exception is made and the error is assigned on the single ruling, and not on the varied legal propositions. The power of the Circuit Court in regard to the reports of referees is identical with its power on certiorari, except that it may order a new trial of a referred case. But in both classes of cases it can confirm or reverse the conclusion of the inferior officer, in whole or in part, and in regard to either its judgment is alike single. If complained of in this court, it is because the objections to the proceedings were allowed or disallowed, and in both classes of proceedings, those objections are set forth in the record for the information of the Circuit Court, and come up before us on the same papers and require no further , recital. We cannot do anything more or less than decide whether, on those papers, the Circuit Court decided correctly. We must go over precisely the same ground which that court had to traverse, whatever may be the form of the assignment, and the sole question we are to answer is, not whether this or that objection was well founded, but whether the judgment of the Circuit Court was correct upon the record presented there. If any court could review our judgment in this case, there could be no "new question raised, and our written opinions would form no part of the record. They might affirm our conclusions, and yet disaffirm our reasons, and so might we do with proceedings from the circuit. The correctness of the conclusion is the only material question, and I think the only error that can be assigned, must be upon that one act of the court below. "We have no knowledge of anything else which the judge may have done or said, and no means of obtaining any, as no exceptions ever lie where the decision is to be rendered on a written case, sent up for review or approval from a referee.

It seems to me, that any further assignment, instead of being more accurate, would be a direct departure from the record.

•If this were a case permitting a more full assignment, I think it an unnecessarily technical practice to put a party out of court, when there neither is, nor reasonably can be, any misapprehension. The only result will be, I fear, to encourage a refinement of practice which, in a court of last resort, is not to be desired. "Where the assignment points out enough to indicate the real controversy, the cases already cited dispense with repetitions which are really useless. This is the true reason why errors are not assigned on certiorari.

It would not be proper to discuss the main questions in this case, since the majority of the court consider them not open to examination upon the assignment. I therefore express no opinion upon them.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    The People ex rel. Barrett v. Nathaniel Bacon, Circuit Judge.

      Judgment: Notice of trial: Motion to set aside. While a judgment rendered on issue joined without notice of trial or appearance at the trial so far imports regularity as not to be, ipso facto, void, still it is irregular and liable to be set aside on motion.
    When a party against whom such a judgment has been rendered in his absence, without proof of notice of trial appearing on the files, moves at the first opportunity to vacate it, he is entitled to that relief unless it is then made to appear that notice was in fact given.

      Notice of tried in appeal case: Absentees: Proof of notice unden' Pule 10. Under Circuit Court rule 10, providing for notices of trial in appeal cases, when a party is absent, to make such notice valid, it must appear by legal proof, that the residence of the party to whom such notice is directed could not be ascertained after diligent inquiry; and that the notice was posted up in the Clerk’s office for the required period in some conspicuous place, and proof must appear of the place of such posting.
    Every clause and condition of the rule is to be regarded as having some significance; and no presumption can be made to aid a statement which omits any essential particular.

      Mandamus: Ih'egular judgment. A mandamus is the proper remedy to compel the circuit judge to set aside such a judgment as this, where he has denied a proper application.

      Mandamus: Appellate Jurisdiction. Where a mandamus issues to direct the action of a legal tribunal proceeding in the course of justice, it is an exercise of supervisory judicial control, and is in the nature of appellate action. In other cases, it is generally, if not always, an exercise of original jurisdiction.
    The writ, therefore, in this case should be regarded as directed to the judge officially, and as binding the incumbent, whoever he may be, and not merely the judge who denied the application and has since ceased to hold the office.

      Mandamus: Costs. When the writ relates to proceedings in a cause, the party sustaining the action complained of, and resisting the granting of the writ, .is to all intents and purposes represented by the judge, on the motion; he is therefore responsible for the costs.
    There is no authority to impose terms when the relator is only obtaining his legal rights: The writ must be unconditional.

      Heard and Decided April 21st.

    Mandamus to Circuit Judge of Branch County.
    This was an application to compel the Circuit Judge to set aside a judgment rendered against Wallace W. Barrett, because of an illegal notice of trial.
    The facts are stated in the opinion.

      Shipman & Loveridge, for plaintiff in error.
    1. It is error to try a cause without it is first duly noticed for trial. ■ — • 2 Comp. L. § 4,847; Chamberlain v. O’Keef, 2 Mich. 867; Small v. Adriclc, 5 Wend. 187; Knapp v. Mead, 2 Johns. Gas. Ill; Jenlcs v. Payne, 16 Johns. 899; Turrill v. Walker, 4 Mich. 177; Bowen v. Clarice, 2 Wend. 249.

    The statute is imperative and makes the notice a condition precedent to the trial, and it must affirmatively appear that this condition has been performed, before a trial can be had. — Strong v. Childs, 2 Mich. 107; Green’s Prc. Sec. 901; . Smith v. Roberts, 1 Rove. Pr. Ifi; 1 G. & W. New Trials, 11-18; 2 Id. 186-142; 8 Id. 887; Joslin v. Coffin, 5 How. Miss. 689; Schilling v. Welman, 6 N. S. Leg. Ohs, 20; Beelcman v. Reed, 6 Cow. 28; Montgomery v• Henry, 10 Mich. 19; Douseman v. O’Malley, 1 Doug. JffiO; Fitch v. Kettle, 8 M. & G. 866; Moredon v. Wyer, 6 M. & G. 278.

    And it seems this cannot be supplied by subsequent proof. — Doolittle v. Ward, 5 Johns. 859.

    It does not come within the statute of amendments.
    2. C. C. Rule 10 is based upon § 8854 of Comp. L., and that section speaks only of the notice mentioned in the' preceding section. But the preceding Sec. 3,853 applies only to the first notice of trial after the appeal is taken. All subsequent notices come under the general statute, Sec. 4347; so there was no authority for serving the notice of trial by posting in the clerk’s office for the term when this cause was tried, as it was not the first term after the appeal was taken, but a subsequent one.— McDermott v. Board of Police, 5 Ah. Prc. 422; Rutlibun v. Acker, 18 Barb. 898; 2 Comp. L. § 8899 <& 8899.

    3. But, reading the rules from 5 to 10 together, • and giving full force to all, the order of service is: first, personally; second, by mail; and third, by posting in the clerk’s office. Service cannot be made by mail so long as the parties reside in the same place, nor by posting when information of residence can be had. The rules were made to carry out the object of the statute, viz: to give the opposite party an actual notice of trial, not to provide a method of getting to trial without such notice being given, and thereby defeat the statute. The means most certain to get this notice to the party, are to be resorted to first. Such notice is far more likely to reach the absent party where the notice of trial is sent by mail to his residence— “to be ascertained according to the best information and belief of the person making such service” (Rule 9) — than when posted in a distant clerk’s office; hence, service by posting is not allowed when such information can be had. A strict compliance with this order of service is demanded by every consideration of justice. The law abhors an ex parte trial and a construction, the least likely to result in such iniquity, should be insisted upon, and no departure from it allowed.
    Looking only at Mr. Turner’s affidavit, we find, that he had “satisfactory” information of where Gen. Barrett was. That is much better information than rule 9 required him to have. Also that he knew where his family resided, for he says the General was not able to be with them “but' now and then.” (That is immaterial, for he resided where his family lived.) Not receiving replies to his two or three letters is nothing, for non constat that answers were required; but not being returned to the writer was good evidence of their receipt by Gen. Barrett. The General’s whereabouts was a matter of common notoriety and public information, for it was in “the papers,” Mr. Turner says. Also, it appears that he knew he could get the information he did not seem to want, of Mr. Webb, and knew where the “best information” was to be had; but from all these sources, he negligently, if not wilfully, turned aside. Service by mail upon a fraction of the information confessed by Mr. Turner, (to say nothing of that which he avoided, or might have obtained by using the slightest diligence) would have been good, and hence he could not serve by posting. — Collins v. Campfield, 9 How. Pr. 519; Jones v. Derby, 1 Ab. Pr. Jf58;

      Pede v. Goolc, Jfl Bart. 5Jfi; Wortman v. Wortman, 17 Ab. Pr. 66; Irving s. &c. v. Hardman, 17 Ab. Pr. 67 n.

    Nor does Mr. Turner anywhere state that he did not know where Gen. Barrett resided, or that he could not ascertain his place of residence.
    4. Mr. Turner’s affidavit only shows the notice was posted in the clerk’s office. It does not show that it was posted in a “conspicuous place” therein, as rule 10 requires-This is fatal.
    The motion to vacate the judgment, being stated in the case made, is subject to review in this court. — Sallee v. Ireland, 9 Mich. 151

      John W. Tmmer, for defendant in error.
   Campbell J.

John W. Turner having recovered a judgment before a justice against the relator, for $58.50 damages and $2.50 costs, the latter appealed it to the Circuit Court. In that court, after the lapse of several terms, Turner, without introducing any proof that he had noticed the cause for hearing, proceeded ex parte, and obtained a judgment for $160 damages, with the costs. When Barrett, who was out of the state on military duty, heard of the fact, he applied to the court to set aside the judgment as irregular, for want of notice. Turner resisted the motion upon an affidavit, under which he .attempted to show that he had given notice by posting it up in the clerk’s office., on the claim that he could not learn the appellant’s residence, and that the latter had not appeared by attorney. The court, upon this showing, refused to set aside the judgment, and the case was removed on exceptions and writ of error into this court. We dismissed the writ at the last term, as not applicable to such a case, and gave permission to the relator to apply for a mandamus upon the same showing.

Cause is now shown against the writ, by claiming that upon the showing made by Turner, the Circuit Judge rightly refused to open the judgment.

The statute, (2 C. L. §4347 ) requires all issues of fact to be noticed for trial. Rule 10 of the Circuit Court rules provides that in cases of appeal, where the party upon whom notice is sought to be served has not appeared by attorney or agent, and his place of residence cannot be ascertained, notice may be served by posting it in some conspicuous place in the office of the County Clerk.”

While a judgment rendered without notice or appearance so far imports regularity as not to be ipso facto void, yet the statute would be a dead letter if such judgments were not held to be irregular and against right. Where any one attempts to bring on a cause ex parte, the court fails in its duty, and does a legal wrong to the absent party, unless it requires strict proof of regular notice, as .a condition of going to a hearing. Proceedings without notice are contrary to the entire spirit of the law, and should not be countenanced.

When a party, against whom such a judgment has been rendered, in his absence, without proof of notice appearing on the files, moves at the first opportunity to vacate it, he is legally entitled to that relief unless it is then made to appear that legal notice was in fact given.

In the present case, an attempt was made to prove such notice. In order to make it valid, the party was bound to show that Barrett’s residence could not be ascertained, and that notice was posted up in the clerk’s office for the required period, in some conspicuous place.

Without examining the relator’s own showing, and looking only at Turner’s affidavit used before the Circuit Judge, it is manifest that no positive allegation is made from which it can be assumed that Barrett’s residence could not have been ascertained. Instead of making the simple and natural statement that he had made diligent endeavors, and yet had failed to ascertain the residence, the affiant undertook to give a narrative from which he desired that conclusion to be drawn, but which we think does not tend to establish it. It appears inferentially from the affidavit that Turner was not ignorant of the residence of Barrett’s family, and also that Barrett was in the military service of the United States, and subject to removal from place to place under orders. As a man’s residence is presumptively with his family, in the absence of any contrary showing, and as a military location does not, of itself, usually confer residence, that presumption should have been overcome. The affidavit in no place denies a knowledge of his residence. It merely denies a knowledge of his location. If this had been enough, it might possibly have sufficed, in connection with an allegation found in the affidavit, that he had made such inquiry, and obtained such information as he could, unless he had destroyed the force of this general statement by some particular facts showing what steps he took to inform himself. He alleges that he went to Webb, Barrett’s father-in-law, and carefully concealed from him his object, and simply asked in a casual way about the whereabouts of several colonels, and among them Colonel Barrett, but taking pains to conceal his motive. Questions asked in such a way, as if out of idle curiosity, cannot be expected to set one at work to tax his memory, or to make search for information which he may have within reach. It is evident that there was not any attempt to use any diligence in ascertaining where Barrett was to be found..

There is not a single allegation tending to show ignorance of Barrett’s residence or difficulty in ascertaining it.

The proof of posting notice is equally defective. It is not asserted to have been in a conspicuous place. Every clause and condition of the rule is to be regarded as having some significance, and no presumption can be made to aid a statement which omits any essential particular. Every one knows that there are many places in a clerk’s office where a notice would be anything but conspicuous, and where, if it could be done* notices not intended to excite much attention could be safely placed, with an assurance that they would remain unread. It should have been shown that this notice was put in a conspicuous place, and the place should have been mentioned. — People v. Highway Comrs. of Nankin, 14 Mich. 528.

The judgment should have been set aside, and a man-damns is the proper remedy to compel this. But two questions are presented of some importance bearing upon the nature of the writ as an original or appellate process. The first is, whether the writ is confined to the person, or whether it reaches the official position of the judge; or in other words, whether it can act upon whatever person is for the time being judge of the Circuit Court. The second refers to the liability to costs.

Where a mandamus issues to direct the action of a legal tribunal, 'proceeding in the course of justice, it is an exercise of supervisory judicial control, and is in the nature of appellate action. In other cases, it is generally, if not always, an exercise of original jurisdiction. In the case of Marbury v. Madison, 1 Cranch, 137, the Supreme Court of the United States, held that the Act of Congress, authorizing that court to issue writs of mandamus to public officers, was unconstitutional, as giving an original jurisdiction beyond that to which they were confined by the constitution. But the practice of issuing such writs to the inferior • courts of the United States has been asserted and upheld in numerous cases. In Ex parte Crane, 7 Peter’s 190, the power to issue these, writs to courts was disputed, on the ground that it was an aet of original jurisdiction, but the court notice the distinction in these words: A mandamui to an officer is held to be the exercise of original jurisdiction; but a mandamus to an inferior court of the United States, is in the nature of appellate jurisdiction," p. 193. This view has been acted fon ever since, and' the writ has issued in numerous cases.

It would seem to follow, that the' writ should be regarded as directed to the judge officially, and as binding the incumbent, whoever he may be. In all cases, the jurisdiction to issue mandamus depends on official character, and binds the officer, and the reason is, if anything, stronger where the writ issues to a court of justice. And where it relates to proceedings in a cause in court, the party sustaining the action complained of, and resisting the granting of the writ is to all intents and purposes represented by the judge on the motion. We can see no reason why he should not be held responsible for the costs as belonging in fact to the cause. A certiorari is, under the regular common law practice, not entitled in the cause which it brings up, or between the parties litigant, but it is like the writ of mandamus, a writ of the people directed to the judges. Tidd’s Pr. 403, 404. We have in some cases retained this practice, but in bringing up cases from courts of justice, the title is generally retained as a private suit, and costs are granted as between parties. But the right to grant costs cannot depend upon the accuracy or inaccuracy of the entitling, and there is no real difference between certiorari and mandamus, in regard to the persons whom the court should consider as the true litigants. We have no doubt that Turner is liable for the costs of this application if granted, as Barrett would be, if denied.

The motion íor a mandamus must be granted with ten dollars costs. We have no authority to impose terms, when the relator is only obtaining his legal rights, and the writ must be unconditional.

The other Justices concurred.


text:
    Joshua Conrad v. Jacob R. Freeland.

      Appeal: Justice's Court: Motion to dismiss: Becord: A motion to dismiss an appeal from a Justice’s Court, for the reason that the sureties on the appeal bond did not justify, is not such a part of the record as is brought up by writ of error.

      Heard and Decided April 24th.

    Error to Wayne Circuit.
    This was an appeal from a justice of the peace to the Wayne Circuit.
    In that court, ou filing an affidavit of the justice that the sureties in the appeal bond did not justify before him, a motion was made to dismiss the appeal, and which was denied.
    A writ of error was then sued out, and the case brought to this court.
    The motion to dismiss was not set ont in the return to the writ of error.
    Mr. Romeyn now moved for a further return to bring up the said motion.

      L. T. Griffin, contra.
   The' court held that such a motion could not he brought up ou writ of error, and if the court below erred in refusing to grant it, the proper remedy h'ad not been sought in this case.

Motion denied.


author: Graves J.

text:
    Edward C. Richards et al. v. Eurotus Morton.

      Old Court of Chancery: Foreclosure proceedings: Jw'isdicUon. By the law of 1847, the office of Chancellor of the olcL Chancery Court, was abolished; but the u Court of Chancery” was retained. By the revised statutes of 1847, all new chancery business was conferred upon the “ Circuit Courts in Ghancery,” The Supreme Court was empowered to wind up the business pending in the old Court of Chancery, and the Circuit Courts had exclusive jurisdiction in all other chancery cases. The former court continued such jurisdiction until January 1, 1852.
    In a foreclosure suit commenced in 1846, in the old Court of Chancery, in Wayne County, where the mortgaged premises were:

      Held, that the tribunal provided for by the act of 1847, retained complete and exclusive jurisdiction over the case until after January 1,1852.
    The records in said court showed that the notice of sale, made in 1850, was made by virtue of a decree of “ the Circuit Court in Chancery for the county of Washtenaw,” that the recitals in the master’s deed were in the same form; that the report of sale was entitled in the same way, and addressed to said court, and that all the proceedings of the master purported to relate to a case pending in that court, and not in the “Court of Chancery.”

      Held further, that the written evidence of said proceedings denote that they pertained to the said Circuit Court, and not to the old Court of Chancery.

      Foreclosure: Confirmation of report: Evidence of title of purchaser at foreclosure sale. It appeared that an ex-parte order was made by said Circuit Court in 1853, when it had complete jurisdiction, allowing a writ of assistance, and reciting ¿hat it appeared by affidavit on file, that Rawson, who was in possession of the mortgaged premises, “ had been served with a certified copy of the order confirming the master’s report of the sale.”

      Held, that said order did not operate as a confirmation of the proceedings, and therefore the equity of redemption .was not barred.

      Held further, that defendant, Morton, who claimed the premises as vendee of Edmonds, who was the purchaser of them at the alleged foreclosure-sale succeeded to all the rights of said Edmonds, as owner, by virtue of said purchase, of the mortgage sought to be foreclosed; that said complainants were entitled to redeem said mortgage, and to have an account as to the amount due thereon.

      Heard April 22,

      Decided April 27.

    Appeal in chancery from Wayne Circuit.
    The bill in this case is filed to foreclose two mortgages: given repectively by Amariah Rawson and William E. Warner, to George W. Gilbert.
    To the foreclosure of the latter mortgage, defendant Morton offered no defence; but be claimed a right to the property covered by the Rawson mortgage superior to that of the complainants.
    The mortgage under which the defendant claimed was given to Simeon A. Dunn, and was dated July 1, 1841, and was recorded July 2, 1841.
    The mortgage under which the complainants claim was dated October 29, 1847, Dunn assigned his mortgage to Newton Edmunds, who, on the 14th of February, 1846, filed a bill in the old Court of Chancery, Circuit, to foreclose it. Subpoena was issued and served, answer and replication filed more than a year prior to the execution of the mortgage by Eawson to Gilbert, under which the complainant claims.
    The cause was commenced and carried to a decree in the old Court of Chancery for the 2d Circuit. By the law of 1847, abolishing the office of Chancellor, the old court was retained and the jurisdiction devolved upon the justices of the Supreme Court for the purpose of disposing of the business commenced in said pourt as theretofore constituted.
    The class of cases to which this belongs remained under the jurisdiction of said Supreme Court Judge until January 1, 1852: the land being in another county, Wayne, than that where the old court was held (Washtenaw county.)
    The new courts of chancery, as created by said law were designated, “The Circuit Court for the coimty of - in Chancery.”

    The defendant contended that the property was regularly sold under the decree to Edmunds, who afterwards conveyed it to him.
    On the hearing, it appeared that the proceedings in the suit which were very imperfect, showed, amongst other things, the following:
    The notice of sale, was as follows: “Notice is hereby given, that, by virtue of a decretal order made by the Circuit Court for the county of Washtenaw, State of Michigan in chancery, bearing date the 27th day of December, A. D. 1849, in a certain case pending in said court.”
    The master’s deed, recited that, “Whereas, at a session of the Circuit Court for the county of Washtenaw, State of Michigan in chancery, held on the 27th day of December, A. D. 1849, it was among other things, ordered adjudged and decreed by said court, in a certain ease then depending in said court.” “And whereas I, the said Levi Bishop, master in chancery, * * * in pursuance of said order and decree of said court, did” sell, “having first given six weeks previous notice of the time and place of such sale,” “agreeably to said order,” “Now therefore, * * “ in order to carry into effect the said sale so made/
    The master’s report on sale, was as follows: “ State of Michigan, Circuit Court for the county of Washtenaw, in chancery.

      Newton Edmunds, complainant vs.' Amariah Ratoson, defendant.
    To said court: “In pursuance of a decretal order of said court, made in said cause,” “I, the subscriber,” * * “by virtue of and pursuant to said order and decree, do hereby report.”
    From the journal entry of the Circuit Court for the county of Washtenaw in chancery, it appears that the following order was made by judge Johnson, on the 29th of September, 1858.

      “Newton Edmunds v. Amariah Ratoson.

    Upon reading and filing the affidavit of Amos O. Blodget, whereby it appears that the defendant Amariah Rawson, who is in possession of the lands and premises mentioned and described in the bill of complaint and deed in this cause, was served with a certified copy of the order confirming the master’s report upon a sale of the premises in this cause, and that at the same time the master’s deed for said premises was produced and shown to him, and that he was then required to deliver possession of the said premises which he refused to do. Upon motion of O. Joslin, solicitor for complainant, it is ordered -that a writ of assistance be awarded against the said Amariah Rawson to the Sheriff of the county of Wayne, thereby commanding him to put the said purchaser in possession of the said premises described in • the said deed, and him in the possession thereof from time to time maintain and defend.”
    On the hearing, the bill was dismissed without prejudice.

      JS. W. Morgan, and G. V. M Lothrop, for complainant and appellant.

      H. K. OlarTce, for defendant and appellee.
   Graves J.

The original bill in this case was filed on the sixth day of January, 1855, to foreclose two mortgages executed on the 29th of October, 1847, one by Anmriah Kawson, and the other by William E. Warner, to George W. Gilbert, and such bill was followed by a supplemental one, filed by the complainants on the 14th of September, 1863.

Morton answered, but all the other defendants suffered the bills to be taken as confessed, and, on the hearing, they were dismissed as to him, and the complainants appealed to this court.

The defense interposed by Morton relates exclusively to the Kawson mortgage, and the property covered by it which property he claims to have acquired by purchase of Newton Edmunds, whom he alleges to have been the vendee of the same on foreclosure hnd sale, upon a mortgage given on the same premises by Kawson to one Simeon A. Dunn several years before the execution of the mortgage to Gilbert, namely July the first, 1841.

It is maintained, on the part of Morton, that the foreclosure proceedings on the Dunn mortgage were commenced on the 14th of February, 1846, in the Court of Chancery, as then constituted, that a decree of sale was made in 1849, and that the property was sold to Edmunds,' pursuant thereto, on the 15th of May, 1850.

It is seen, therefore, that the position of Morton amounts to an assertion of an adverse and paramount title, derived through the foreclosure proceedings on the prior mortgage given to Dunn.

The material question in the case is whether, by the proceedings so carried on by Newton Edmunds, he obtained the legal title and barred the equity of redemption as against those, setting up the mortgage in suit.

Tlie decision of this question requires us to determine whether certain proceedings essential to the completion of the foreclosure, and the validity of a title depending thereupon have been shown to have taken place. Upon this point the parties are at issue, it being maintained by the complainants that several of the most essential things for the foreclosure relied on, are in no manner shown to have been done, while it is urged in behalf of Morton that it sufficiently appears that all requisite proceedings were had, and that certain discrepancies pointed out by the complainants as to the description of the tribunal in different instances in the papers and proceedings produced in evidence, are merely verbal, and such as ought not to prejudice Morton’s right.

By the act which took effect February, 27, 1847 (Sess. L. 1847, p. 33,) the office of Chancellor was abolished, but the Court was retained, and the jurisdiction devolved upon the Justices of the Supreme Court, for the jmrpose of disposing of all the business commenced in the Court as theretofore constituted. This act also continued, the registers of the Court in office, and authorized the Justices of the Supreme Court to fill vacancies by appointment. By the R. S. which took effect on the first of March, 1847, jurisdiction as to all new business was given to the Circuit Courts in Chancery for the several counties.

It is seen that this law of February 27th, provided a particular tribunal for the winding up of the business pending in the old court, at the time when the Circuit Courts in Chancery for the several counties were clothed with exclusive jurisdiction in all other cases, and, on examination, it will be found that such particular tribunal continued to have exclusive jurisdiction of - the matters so confided to it, until June 2, 1850, at which time by the act of that year (L. 1850, p. 416, 417,) certain cases were made transferable in the way, and upon the grounds specified in the act, to the Circuit Court in Chancery for the county. It is, however, conceded that this act did not apply to the case. As the bill to foreclose the Dunn mortgage was filed in 1846, in the old court, and the mortgaged premises were in Wayne county, the tribunal provided for by the act of February, 1847, must have retained complete and exclusive jurisdiction over the case until after January 1, 1852, when the act of June, 1851, became operative, (Sess. L. 1851, pp. 276, 277.)

The Courts of Chancery in this State have always been re quired to keep an accurate record of their decrees, orders, and proceedings, in such form as to identify the tribunal exercising jurisdiction in the given case, together with the acts performed; and the necessity for so doing is founded upon reasons so obvious and conclusive as to supercede any critical reference thereto. From the nature of the case, a particular court can, in general, be precisely distinguished upon the face of its proceedings in no other way than by the style which belongs to it, or, in other words, the appellation which the law has bestowed upon it, for the very purpose of distinguishing it from all other judicial organizations. It is undoubtedly true that in many instances a mere clerical misnomer will be amended, or rendered harmless by construction, but when this is done, it must be because the evidence of mistake comes in such shape, and under such circumstances as to leave no question as .to the intrinsic rectitude of the act, the fact of mistake, and the authority to read the record or proceeding according to the truth. When, however, the written entries or files in the nature of a record, or constituting a record, furnish the only written evidence of the character of the proceeding, or of the identity of the tribunal, they must, when compatible with the general jurisdiction and course of such court, be necessarily conclusive in a collateral inquiry as to those points, in conformity with the principle which accords verity to the record, and will not permit one to be contradicted by parol.

We have seen that, from a short time after the filing of the bill in the old court to foreclose the Dunn mortgage, there existed and were held in Washtenaw county, until 1852, two entirely distinct and independent tribunals for the transaction of Chancery business, one having exclusive jurisdiction over that case, and the other having no concern with it whatever. It is also well known that the style or title of the court so having jurisdiction of that cause was “ The Court of Chancery of the State of Michigan, for the Second Circuit,” and that the style or title of the other court, which had no jurisdiction in that case, was “The Circuit Court for the County of Washtenaw in Chancery.”

The first material objection to the validity of the proceedings for the foreclosure of the Dunn mortgage relates to the decree, the complainants denying that any decree of foreclosure and sale was made by thé court having cognizance of the case and jurisdiction. And, although there is some ground for contending that no decree was actually made and enrolled in such court, it is not necessary to discuss that point, because we feel compelled to hold that difficulties subsequent to the supposed decree must inevitably defeat the claim of the defendant, Morton. On turning to the proofs in the case, we observe that the master’s notice of the sale under which Morton makes his claim, stated that the sale would be made by virtue of a decree of “the Circuit Court for the County of Washtenaw, in Chancery,” in a case pending in said court; that the recitals in the master’s deed were in the same form, that the report of sale by the master was entitled in that way, and addressed to the same court, and that all the proceedings of the master purported to relate to a cause pending “in the Circuit Court, for the County of Washtenaw in Chancery,” and not in “the Court of Chancery, of the State of Michigan, for the Second Circuit.” The written evidence of all these proceedings denotes that the proceedings it describes pertained to the Circuit Court for the County of Washtenaw, in Chancery, and not to the other court, and they could not, in the present instance, be referred to the Court of Chancery of the State, for the Second Circuit, without disregarding the object of written records, and the purpose of specific appellations for the tribunals of the country. Indeed it seems reasonable that, in ascertaining which court was acting or addressed, we should be guided by the evidence furnished by the records, and should not reject the testimony they afford on the subject, upon the assumption that the proceedings of one court were carried on in the style of another.

But it is maintained, on behalf of Morton, that the public sale before mentioned was duly confirmed, by the Circuit Court for the County of Washtenaw, in Chancery, on the 24th of September, 1853, when that court had complete jurisdiction by force of the act of 1851 (L. 1851, p. 276,) and that such confirmation was and is conclusive as to the rights of all parties to the suit, and all others claiming under them to the subject in controversy.

On recurring to the record, it will be observed that the action of the court, which is claimed to have b.een in confirmation of the sale, seems to have been an ex-parte order allowing a writ of assistance, and reciting that it appeared from the affidavit of Amos C. Blodget, that Rawson, who was in possession, had been served with a certified copy of the order confirming the master’s report upon a sale of the premises, &c.

There are several reasons against giving to this order the effect imputed to it. First: There is nothing to show that Rawson appeared, or had notice of the application, while the circumstances tend to prove the contrary. Second: It is evident that it was not meant to pass upon the validity of the sale in allowing this order. Third: The recital or statement that an order of confirmation had been served, purports to have rested on affidavit, and on the opinion of the affiant as to what constituted a legal order of confirmation and a proper service, and the recital would therefore furnish no higher evidence that a confirmation was duly had, than would a. similar affidavit at the present time; and Fourth: That as an order of confirmation was a pre-requisite to the order allowing the writ of assistance, a bare recital of the existence and service of the former could not establish the validity of the latter, or supercede the necessity of independent proof of the precedent order.

If the entry under date of September 19, 1853, is relied on as the order of confirmation mentioned by the deponent Blodget, in his affidavit, then, as that entry was made during vacation, without the actual cognizance of the court, but at the sole instance of the party, and at his peril, it could not have the effect of a real adjudication upon the validity of the antecedent proceedings, so as to make good all of such proceedings, and cure all the omissions, errors, and imperfections which had before occurred. We have no evidence that this entry was in the contemplation of the court, when the order allowing the writ of assistance was made, and to give to an entry, like this, made by the party in vacation, the extensive effect claimed for it, would, it is believed, be unsupported by precedent, and attended by. very dangerous consequences.

These considerations require us to hold that the claim of Morton that the equity of redemption in the Dunn mortgage was barred, and that Edmonds, his grantor, acquired a complete legal title, by means of the foreclosure suit commenced in the old court, is not supported' by the evidence.

There is still no question, however, but that by means of the circumstances stated in the pleadings, Newton Edmunds became invested with the ownership of the Dunn mortgage, and that by the conveyances to Morton, the latter succeeded to all the rights of Edmunds. But we are of opinion that the deed from Bishop to Edmunds, and the deeds to Morton from Lockwood and Edmunds, were wholly ineffectual as conveyances of the land, and were only operative in working an equitable transfer of the mortgages,

According to this view, the complainants, as subsequent mortgagees, are^’entitled to redeem the Dunn mortgage, and to demand its discharge. The complainants are also entitled to have an account taken, in the usual way, of the amount due and unpaid on that mortgage, and of the rents and profits of the mortgaged premises, chargeable in the usual course against Edmunds and Morton respectively, and to have any balance found against the latter persons on such accounting, applied on the mortgage, so far as necessary to satisfy it.

"We are also of opinion that upon such accounting the defendant, Morton, should be credited as of December 29, 1849, with the sum of $53 for the costs taxed for proceedings up to the decree in the suit commenced in the old court, and that there should be applied on the mortgage as of the 26th of December, 1849, the sum of $100 paid by Bawson, in the said suit, to the solicitor for Edmunds. And we are further of opinion that if the accounting should establish a balance of rents and profits sufficient to satisfy the mortgage, or if the complainants should pay any amount remaining, and sufficient to satisfy it, that then the defendant, Morton, should be required to discharge the mortgage within some proper time, at the expense of the complainants; and, on the other hand, if upon the confirmation of the report, a balance should still remain unpaid upon the mortgage, and the complainants should fail to pay the same within some reasonable time to be fixed for that purpose, that then the bill should be dismissed as against the defendant, Morton, with costs.

The decree of the court below dismissing the bill as against the defendant, Morton, must be reversed, with costs, and the case must be remanded to such court, to be proceeded, in, conformably to tbe principles which have been stated.

The other Justices concurred.


author: Campbell, J.

text:
    Foster v. People.

      Accomplice: Cross-examination. An accomplice who lias given testimony criminating himself as well as his co-defendant, on whose trial he testifies, cannot refuse to answer fully on cross-examination concerning the entire transaction of which he has undertaken to give an account, and in which he has shown himself guilty.

      Larceny: Evidence. Evidence that a person charged with larceny has previously attempted to purchase a chattel similar to that stolen, has no tendency to disprove theft, and is not admissible for that purpose.

      Heard April 9th.

      Decided April 27th.

    Error to Macomb Circuit.
    The defendant, in the court below, was tried and convicted upon an information charging him with larceny of a horse.
    The errors assigned, and the facts bearing upon them, are stated in the opinion.

      Newb&rry, Pond, & Proton, for plaintiffs in error.
    1. Defendant, in. court below, was tried in Macomb Circuit, for larceny of a horse. The Prosecuting Attorney having elected to try Foster separately, put the other prisoner, McCoy, upon the stand, and elicited from him a statement which tended to show the guilt of Foster, and proved conclusively his own guilt.
    We were, therefore, entitled to the widest latitude in impeaching his credibility. He was asked, whether he had made an affidavit of a defence upon the merits, and the question was then asked, “ What was that defence ? ” McCoy did not object to this on the ground that it would criminate himself, nor could he do so after the confession he had made. He was bound to answer everything in relation to the transaction. — Greenl. on Ev. § lf51; Alclermcm v. PeopleK If Mich. If Ilf; State v. Oondrey, 6 Jones, Law, If 18; State v. Foster, 8 Post. 848.

    The evidence he gave would not be admissible against him. — People v. Whipple, 9 Goto. 716.

    And upon doing this he is entitled to a noil. pros, of the information against him. — 1 Pish. Grim. Pro. § 607; 1 Philips on Ev. p. 107; United States v. Lee, If McLean, 108.

    The court erred in sustaining the refusal of the witness to answer. Although it is within the discretion of the court to limit the latitude of a cross-examination upon immaterial points/ it is only where competent evidence is not excluded that no error lies, — Rand v. Newton, 6 Allen, 88; Morein v. Solomons, 7 Rich. S. O. 97;* People v. Blakely, If Park. 167.

    And where the evidence excluded is irrelevant to the issue. — Grt. W. Turnpike Go. v. Loomis, 82 N. Y. 127; People v. Bodine, 1 Denio, 281; People v. Abbott, 19 Wend. 192.

    In all similar cases, where a new trial has been refused, the testimony sought to be introduced was immaterial, or related to some transaction entirely independent, and tending only to degrade the witness in the eyes of the jury. But the question in this case was entirely relevant. — Kirschner v. State, 9 Wis. lift; Newton v. Harris, 2 Seldon, 81f5; Nye v. Merriam, 85 Vt. Jf88; Bersch v. State, IS Ind. lfSlf.

    The limits to which a cross-examination may properly extend, is no longer a question of doubt in this State.— Oampau v. Dewey, 9 Mich. 881; Ohandler v. Allison, 10 Ld. Jf60; Beaubien v. Gicotte, 12 Id. Jf69; Dann v. Gudney, 18 Ld. 289.

    2. The rejection of Oollyer’s proposed testimony, as to whether the defendant had sought to purchase a horse of him within six months, was also erroneous.
    The statements of a prisoner are admissible in his own behalf, when they are part of the res gestee, or ■when they constitute a verbal act in themselves.— Boscoe on Grim. Ev. 23, 89; Dill-ire v. People, 8 Mich. 357; Bussell v. Frisbie, 19 Gt. 205; Powell v. Bagg, 8 Gray, 441; Boy den v. Moore, 11 Piclc. 362; Marcy v. Stone, 8 Gush. 4'> Simonds v. Glapp, 16 N. H. 222; 1 Greenl. Ev. § 108.

    The only question here is, Is it relevant? Does it tend to prove the prisoner’s innocence ? The theory of the prosecution was, that the prisoner conspired with others to steal the horse and sent it to Toledo for sale. Foster’s defence was that he wanted a horse for his son; bought this one because he thought it' cheap, añd gave it to JVlcCoy to exchange for a smaller one. Evidence that the defendant bought and sold horses as a business, would certainly be admissible to show that he bought this one in the usual course of that business. It seems equally clear that evidence that he wished to purchase a horse would tend to show that he purchased this one in good faith.
    We submit that a new trial should be granted.

      Dwight May, Attorney General, for defendant in error.
    There are but two grounds of error alleged in the record.
    1. That the court erred in refusing to direct the witness, McCoy, that it was his duty to answer the question, “What was that defence?”

      a. McCoy was jointly charged in the information, with Foster, who was on trial; McCoy was a witness for the prosecution. He had been examined by the people, and gave testimony tending to show that Foster was guilty of the crime charged. On the cross-examination he was asked if lie had not made an affidavit in that cause, for a continuance, in which he swore that he had a good defence, and was then asked, “ What was that defence ?” The prosecution objected, but was overruled by the court.
    The witness then declined to answer, on the ground of the privilege, and was sustained by the court. While the court erred in its reason for the exclusion, the testimony was clearly -collateral, and no error was committed which will authorize a new trial. — Hilliard on New Trials, 211; Munro v. Potter, SJf Bari. S58.

    It could make no manner of difference with the issue then being tried between The People and Foster, what defence the witness had to the same or a similar charge. The witness 'was not then on trial, and so far as this question is concerned, it stands precisely as if Foster and the witness had been separately informed against. — 1 Wharton Grim. Law, JfS5; Waltzer v. State, S Wis. 786; Stranghan v. State, 16 Arle. 87; Gord v. Com. Ilf B. Monroe, 886.

    It is well settled that a witness cannot be cross-examined as to any distinct collateral fact for the purpose of laying the ground for impeachment. — 1 Greenl. Hv. §§ 52, Iflf8, lflf9; Harris v. Wilson, 7 Wend. 61; Plato v. Reynolds, 27 N. T. 587; Carpenter v. Ward, 80 Id. 21f8; People v. McGinnis, 1 Parlcer Grim. R. 891; Dunn v. Dunn, 11 Mich. 288; Fisher v. Hood, Uf Id. 189; Com. v. Buzzell, 16 Piclc. 157; Ware v. Ware, 8~ Greenl. 29.

      1. It does not appear that the exclusion of the testimony prejudiced the rights of Foster in the slightest degree.
    Unless he shows some error prejudicial to him, a new trial will not be granted. — Hilliard on New Trials, 82, and cases cited.

    Nor will it be granted to correct a mere theoretical error. — Munro v. Potter, 8Jf Bari. 861.

      2. The only other error assigned is: That said court erred in refusing to permit the witness, George W. Coll-yer, to answer the question, “State whether defendant has sought to purchase a horse of you at any time during the past six months, and before the first of October last.”

      a. So far as anything appears in this record, this question was clearly immaterial and irrelevant to the issue.

      b. The question called for the declarations of Foster, uttered six months before the alleged larceny. They were not a part of the res gestee and were therefore clearly inadmissible. —Dawson v. Hall, 2 Mich. 890; Oliver v. the State, 17 Ala. 587; Carter v. Buchanan, 8 Kelley, ( Geo.) 513; Crosby v. Leary, 6 Bosw. SIS.

   Campbell, J.

The respondent was informed against jointly with one William McCoy, in the Circuit Court for the county of Macomb, for the larceny of a horse, and some other articles. Foster was tried separately, and the other defendant, McCoy, was used by the People, as a witness against him.

McCoy proved facts tending to show the guilt of Foster, and showing also his own guilt, in receiving the horse in Detroit, and taking him to Toledo, where the witness was arrested with the stolen property. Upon cross-examination, he admitted that he had made an affidavit for continuance, in which he swore that, as he had been advised by counsel, and believed, he had a good defense upon the merits. Counsel for Foster then asked what that defense was. The counsel for the People objected to the question, on the ground that a person accused of crime could not, while a trial was pending, be compelled to disclose his defense. The court overruled this objection, and then the witness declined to answer. The record does not show on what ground the witness declined. The court refused to direct him to answer.

Whether the witness had, or had not, such a privilege, it was not an objection which any one but the witness himself could raise upon the trial, and probably the court overruled it when made by the prosecution, on that ground, inasmuch as when made by the witness, it was allowed. Privilege from crimination, or the like, is no ground for refusing to allow questions to be put if not objected to by the party privileged.— 1 Greenl. Ev. §451; Roscoe Cr. Ev. p. 174; note to Thomas v. Newton, 1 Moody & Malk. 48; Com. v. Shaw, 4 Cush. 594; Southard v. Rexford, 6 Cow. 254.

lb cannot be reasonably claimed that the question was too irrelevant to be answered, even if such an objection could be taken by a witness. Any defense which he may have had against the charge could only have related to matters directly bearing upon what he had already testified to; because the charge was against both him and Foster, and anything throwing light upon any transaction connected with the history of the theft, from its inception to the arrest of the property in his hands, was receivable in evidence on the trial, and was properly received by the court. If excluded at all, it must be on some ground of privilege, which justified the witness in refusing to disclose the facts referred to.

Nor can • it be regarded as unimportant, to enable the jury to appreciate the real character of the witness, as a reliable narrator. It has always been understood that the testimony of accomplices against a prisoner, should be scanned with jealousy; and in many cases it has been intimated that no conviction could properly be had upon that alone. We do not hold to this extreme doctrine, but leave the credit of such persons to the jury; yet the quality of such testimony can never be regarded as entirely separated from the character which is indicated by their crimes; and if the position they occupy indicates moral turpitude, there is a necessity for more thorough cross-examination, and nothing ought to be shut out which can sensibly aid in explaining their credibility, unless there is some fixed rule of law that excludes it.

The witness not having given any reason for refusing to answer, we can only infer what reasons he might have had; and the only ones that have been suggested from any quarter are: first, his supposed right to keep to himself his communications with counsel relative to his defense; and, secondly, his right to avoid criminating himself in any way.

It has been suggested that the crimination which might be created by an' answer to the question, would go beyond any liability upon the larceny, and apjily oh a charge of perjury, which might lie if he swore to facts making him responsible, and had before made an affidavit contradicting those facts.. If any necessary contradiction was created by the affidavit, it is difficult to see how he could be put in any worse condition by explaining to what it referred. But it is unnecessary to consider that point here, because no such contradiction appears. The affidavit that he had a defense on the merits to this information agrees well enough with his testimony, because, while proving conclusively his guilt, he has, so far as his testimony is concerned, disproved any liability under this information, which charges an offence in Ma-comb county, while he swears to acts none of which were acknowledged to have been committed by him or by his procurement in that county. According to his showing, he could be held in Wayne and in Monroe, but not in Macomb.

The question, therefore, narrows itself to an inquiry whether, after undertaking voluntarily to explain the transactions connected with the larceny and the disposition of the property involved in the charge on trial, and after answering fully the direct questioning of the pros-edition, and unequivocally criminating himself to the extent of complete legal guilt of larceny of chat property, he can then refuse to answer further, and be protected against further disclosures relating to the same transaction.

No principle is better settled than that no inference can be permitted against a witness because he asserts this privilege.— Carne v. Litchfield, 2 Mich. 340; Rose v. Blakemore, Ryan & Moody, 382; Ld. Elden, in Lloyd v. Passingham, 16 Ves. 64; Knowles v. People, 15 Mich. 409. This doctrine is necessary in order to make the privilege of any value. But the necessity of making the privilege effectual, renders it equally necessary to take care that where such protection would lead to absurd or unreasonable consequences, it shall not be allowed.

It would certainly lead to most startling results if an accomplice, • who has made out a clear showing of a prisoner’s guilt, and has, in doing so, criminated himself to an equal degree, could refuse to have his veracity, or fairness, or bias, or corruption, tested by a cross-examination, and yet be allowed to stand before court and jury on the same footing with any other witness who has been perfectly candid, but who may have been convicted of a similar felony. It is perfectly evident that where a witness who has undertaken to give a full account of a transaction, and has not spared himself from conclusive accusation, then turns round and refuses to answer further, his motive must be something more than to save himself from the criminal exposure; and it is of great importance to learn why such a course is adopted. If, in those cases where cross-examination is most desirable, to test the credit of a man who is seeking to save his own liberty, by swearing away that óf another, it can be completely prevented at the option of the witness himself, it would be difficult to justify the rule which allows co-defendants to be used by the prosecution at all, when they cannot be received for the defence. I cannot conceive that the law will tolerate such a state of things. When a man has voluntarily admitted his guilt, he has done all that he can to criminate himself ; and his protection from further disclosure on the same subject, is no protection whatever, because it cannot undo what makes the whole mischief.

The cases which apply to ordinary witnesses — who do not stand properly on the same footing with accomplices — do not in any way sanction such a stretch of privilege. It has been decided, and is the received doctrine, that a witness is entitled to decline answering, not only questions which directly criminate him, but also any questions which may apply to facts forming links in the chain of criminating evidence. And, where he has not actually admitted criminating facts, the witness may unquestionably stop short at any point, and determine that he will go no further in that direction. He may judge that his protection does not require him to avoid replying concerning some facts, when as to others the tendency is, or seems to him, more direct and incriminating. Yet even this doctrine, upon the particular facts of the case, although the witness refused to answer the only question which applied directly to the guilt involved, was held in so much doubt in Regina v. Garbett, Denison’s Cr. Ca. 236; S. C. 2 Car. and Kir. 474, that the Court of Exchequer Chamber was unable to agree on the first argument, and on the second argument, after some changes in the bench, the three chiefs of the courts, Denman, Wilde, and Pollock, and Patteson, Coleridge, and Erle, JJ. dissented from the other nine, and held the witness had gone too far to claim any further privilege. He had undoubtedly gone very far, but nevertheless he had not convicted himself, and the decision, while right in its principles, was also correct, as it would seem, upon the facts. As no opinions are reported, we cannot ascertain the precise views of the judges, who do not seem to have agreed as to how far the witness had claimed his privilege. But the rule which allows a witness to refuse answering questions not directly pointing to guilt, rests solely on the doctrine that, as in most cases the crimination would be made out by a series of circumstances, any one of them may have such a tendency to aid in reaching the result, that an answer concerning it may supply means of conviction, by aiding the other proofs which it indicates, or supplements, on behalf of the prosecution. The right to decline answering as to these minor facts, is merely accessory to the right to decline answering to the entire criminating charge, and can be of no manner of use when that is once admitted; and must be regarded as waived when the objection to answering to the complete offense is waived. The law does not endeavor to preserve any vain privileges; and such a privilege as would allow a witness to answer a principal criminating question, and refuse to answer as to its incidents, would be worse than vain; for, while it could not help the witness, it must inevitably injure the party, who is thus deprived of the power of cross-examination to test the credibility of a person who may, by avoiding it, indulge his vindictiveness or corrupt passions with impunity. This distinction between the cases where a witness has or has not furnished sufficient evidence to criminate himself, is clearly recognized in Amherst v. Hollis, 9 N. H. 107, and in Coburn v. Odell, 10 Foster, 540, as well as incidentally in numerous other cases, which hold that when he has once made a decisive disclosure, his privilege ceases. And the further cosnsideration is also recognized, that a witness has no right, under pretence of a claim of privilege, to prejudice a party by a one-sided or garbled narrative. As Mr. Phillips very neatly expresses it, “A witness may waive his privilege and answer at his peril. From the nature of the right it may be inferred that he will be at liberty to answer, or to refuse to answer any questions at his discretion ; and that his consenting to answer some questions ought not to bar his right to demur to others. On the other hand, it is only reasonable that he should not bo allowed, by any arbitrary use of his privilege, to make a partial statement of facts to the prejudice of either party.” —2. Phil. Ed. (Edward’s Ed.) 935.

Accordingly, where a witness has voluntarily answered as to material criminating facts, it is held with uniformity that he cannot then stop short and refuse further explanation, bnt must disclose fully what lie has attempted to relate. This view is adopted by the text writers, and is very well explained in several of the authorities, where the principle is laid down and enforced. — 1 Stark. Ev. 206, (9th Am. Ed.); Roscoe’s Cr. Ev. 174; 1 Greenl. Ev. § 451; 2 Phill. Ev. 935, 2 Russ. Cr. 931; Coburn v. Odell, 10 Foster, 540; State v. K. 4 N. H. 562; State v. Foster, 3 Foster, 348; Foster v. Pierce, 11 Cush. 437; Brown v. Brown, 5 Mass. 320; Amherst v. Hollis, 9 N. H. 107; Low v. Mitchell, 18 Maine, 372; Chamberlain v. Willson, 12 Vt. 491; People v. Lohman, 2 Barb. S. C. 216; Norfolk v. Gaylord, 28 Conn. 309.

In Foster v. Pierce, 11 Cush. 437, it is held that where a witness knows in the beginning that his testimony in the case must expose him to a criminal charge, he must claim his privilege in the outset, or waive it altogether. And, as applied to cases in which that is the gist of the inquiry, this rule appears to be necessary and just, to prevent partial 'and unfair statements. It is probably not designed to apply to any others.

When accomplices are allowed to testify for the purpose of furnishing evidence against a prisoner, they not only know that they are expected to criminate themselves, but they do it with the prospect of an advantage, which, if not absolutely promised, is substantially pledged to them, if they make full disclosures. If they see fit to furnish criminating proof, there is every reason to compel them to submit to the fullest and most searching inquiry. They expressly waive their privilege by giving such proof, for they could not be sworn at all without their consent, while under a joint indictment; and, if not indicted, they could still refuse to .furnish evidence of joint misconduct. But there is neither reason nor show of authority which can, in airy case, alloiv to them any privilege whatever, when they have gone so far already, as to any matters in which they and the prisoner on trial have been connected. As to separate and purely private transactions, not connected with the matters under inquiry, they stand like any other witnesses, because they are not, as'to those, accomplices at all, and no protection is pledged to them on such charges. — 2 Russ. Cr. 927.

Even on the principles applied to ordinary witnesses, they would not be protected, as we have seen, after making any conclusive disclosure. They come upon the stand for no other purpose, and they have never been allowed, under such circumstances, to stop short of a full disclosure. And no privilege is recognized as then belonging to them. — Alderman v. People, above cited; 2 Phil. Ev. (Edw. Ed.) 930; note; 2 Russ. Cr. 927; Com. v. Price, 10 Gray, 472; State v. Condry, 5 Jones L. R. 418; Brown v. Brown, 5 Mass. 320; 2 Phil. Ev. 936.

The witness m the present case ought not to have been permitted to decline answering the question put to him touching the character of his defense, as alluded to in his affidavit for continuance.

The other error assigned was that the court ought not to have refused to allow the' respondent to prove that, within the previous six months, and before the time of the theft, he had applied to the witness, Collyer, to purchase a horse. This was to coroborate a defense set up, that respondent purchased the horse alleged to have been stolen.

We cannot perceive how a desire or offer to purchase a horse tends to prove that a person did not subsequently steal one. Even the most inveterate thieves must sometimes purchase articles; and the fact that they do so would not at all interfere with their misconduct as to others. The evidence was clearly inadmissible, and its rejection was proper. But for the other error there should be a new trial.

The other Justices concurred.