text:
    Ransom Sheldon, vs. The Township of Portage.
    TownsMp'cau levy and collect a highway tax, under \ 994 of G. £., upon property within a Village, specially incorporated, and belonging to a resident thereof.
    Case made upon agreement of parties, under § 3^21 of the G. Tj., as follows: The above named defendant is a municipal corporation existing under the laws of this State. At a meeting of the electors thereof held on tbe first Monday of April, A. D., 1869, pursuant to law, the said electors voted to raise by tax for that year under the provisions of section 994, volume 1, page S41 of Compiled Laws, the sum of two hundred and fifty dollars for the improvement of roads and bridges within said township.
    In pursuance of said vote the defendant’s supervisor spread ■apon the roll of said township, as a special highway tax, snid amount, charging with it the real and personal property situated in the village of Houghton, and belonging to residents there-«f, as well as property outside of said village and within the township of'Portage. That the said village is within said township, and is organized at present under a special charter by the ^Legislature of the State of Michigan. That said tax roll was in due course of law delivered to the defendant’s treasurer for collection of the taxes therein set down. That the amount claimed from the plaintiff, according to said roll, in property, real and personal, situated in the said village of Houghton is the sqm of thirty-sevem 18-100 dollars. That the plaintiff is and was at the time said tax was voted, levied,^demanded and paid, a resident of said village. That said plaintiff paid said tax as his portion of said highway tax to said treasurer (who has paid the same to said defendant) on the 22d day of February, A. D., 1870, under protest and to avoid a levy upon his property for the collection of the amount and that the plaintiff now seeks to recover from the defendant the said sum, so paid as aforesaid.

      Hubbell & Chadbourm for Plaintiff.

      Ball & Chandler for defendant.
   By the Court,

O’Grady, J.

The statute authorizes the electors at the annual township meeting to vote a tax of not exceed, ing two hundred and fifty dollars for the improvement of roads and bridges in the township. Comp. Laws,, p. 341, § 994. This is to pay .the expense of improvements deemed necessary on roads and bridges, over and above the labor to be assessed in that year. Ib. § 993. And it is to be levied and .collected in the same manner as other township monied expenses, § 994.

Other township expenses are levied and collected as follows:

1. The Township Clerk on or before the 1st day October, in each year is to deliver to the supervisor of his township (or ward if in a city) a certified statement of all monies proposed to be raised therein by taxation, together with a statement of the aggregate amount thereof, to be by the supervisor delivered to the county clerk on or before the second Monday of the same month, to be filed in his office, and laid before the Board of Supervisors at its annual meeting, (Sess. L. 1869, p. 336, § 26.)

2. After equalization of the rolls, and apportionment of the State and County taxes, the County Clerk delivers certificates of the amounts apportioned to be assessed on the property of each township for State, County, Township, fractional school district and other purposes, to the supervisor of the proper township or ward. Id. § 32

3. The supervisor proceeds to assess the taxes for the amount specified in such certificate according to and }n proportion to the individual and-particular estimate and valuation specfied in the assessment roll.for the year. Id. p. 339.,. §33.

The township is divided into road districts, C. I., p. 340, § 991, bat it is insisted by the plaintiif that by the charter, the village o+ Houghton is a separate road district, and hence not liable to pay any part of the expense of improvement of roads and bridges outside oí the village. This does not follow. The Commissioners of highways, may levy a highway tax in the several road districts, not exceeding one days Labor for each $100 of valuation besides thé poll tax — O. L., p.. 347, § 1017, to be worked out within the respective districts, for which the same is levied, and if not worked or commuted, it is-to be returned to the supervisor who levies the same on the delinquent property, and to be collected like other, taxes and expended in the district where the same was assessed. G. L., p. 352, § 1038.

In case these taxes are not deemed sufficient, § 993 & 994 > provide tor making up the deficiency by a general tax upon the whole property of the township, which may be all applied in one or more of the road districts, but without-regard to the districts in which it was raised.

The Highway law, and the village charter, taken together, constitutive the law as applied to this case — under the charter the Common Council have power to levy a tax of hot exceeding one-half of one per cent for a highway tax.aiid a ppll tax not exceeding $1,00 on each inhabitant not exempt, Spss: L., 1867, vol. 2,'p. 1092, § 24, for'streets within the village, to be expended under the direction of the village authorities, and the commissioners may levy taxes in the several road districts outside of the village, within the limit,s prescribed in C. L., p. 347, § 1017, to be worked out on the streets under the direction of overseers of highways for. the respective districts.

In case there should be a deficiency either in the village or in the road districts, a general tax may be levied on the property of the township, under § 994. This tax may .be laid out in such part of the township as the Commissioners of Highways may direct — there being no restriction in that respect — either within or without the village, or both. If within the village, probably under the direction of the Common Council or street committee.

Unless, ¡then, the village of Houghton is distinct from and not a part of the township of Portage (which it is not) the property in the village is liable for this as all other township taxes.

But § 53, of the charter, Bess. L., 1867, vole 2, p. 1109, provides that the inhabitants of the village are liable to the operation of all township laws, except as otherwise provided in the charter' — and moreover, the electors of the village are also electors bf the township, and voted on the raising ofthe very tax in question.

The tax is a general, township tax,for the benefit ofthe township, and must be levied eque. laj on all the pi operty of the township — Laws of 1869, p. 339, § 33; C. L., p. 341, § 994; Constition, Art. 14, Sec. 11; O’Kane vs. Treat, et al., 25 Ill., p. 557.

Judgment must be for the defendant.


source: Caselaw Access Project

author: Dewey, J.,

license: Public Domain

text:
    George Hilliker, vs. George W. Fairfield and Alonzo Fairfield.
    One holding the position of a principal in a written contract, cannot change his legal status or liability by endorsing and signing a guarantee of the same.

      Oakland Circuit,

      January 1870.

      W. B. Jackson, for Plaintiff.

      C. & G. S. Draper, for Defendant.
    This cause was tried before the Court and Júry.
    The plaintiff declared against the defendants as guarantors Of a written contract.
    Upon the trial it appeared in evidence that the plaintiff had leased a furnace and shop and a dwelling house, to one Isaac Place, who went into possession immmediately,upon the execution ofthe written lease; that afterwards and before the lease expired the said Place, assigned his right in and to this lease to George W. Fairfield, one of the defendants, with the knowledge and written consent of the plaintiff; and upon request of plaintiff, George W. Fairfield and his father, Alonzo Fairfield, signed the following guarantee on the back of the lease, viz:

      “ For value received I do hereby guarantee to said George “ Hilliker, the fulfillment of all the covenants and conditions of “ the aforesaid lease to be performed as herein specified, by the “ said George W. Fairfield. ”
    Signed George W. Fairfield.

      Alonzo Fairfield.
    It was claimed on the argument, that the plaintiff could-not recover against the defendants jointly declared against as guarantors.
   By the Court,

Dewey, J.,

The defendant, George W., Fair-field, by taking an .assignment of the lease became a principal in the original contract, and as such would be- liable for any breach of the same, and he cannot change his legal status or liability by endorsing a guaranty upon his own contract.


author: Brown, J.

text:
    Alonzo Sherman vs. Ebenezer N. Davis.
    Counsel for the respective parties stipulated, at the time of the informal call of the calender, Jhat their case should not be tried before a certain day named. Some of the witnesses for the prevailing party remained in attendance upon court until the trial. Seld9 that such prevailing party was entitled to recover fees for all the time such witnesses were in attendance at court.

      Kalamazoo Circuit,

      May, 1870.
    The regular term of court commenced May 2d.

      J L. Hawes, Attorney for Plaintiff, and '

      H. Ü. Briggs, Attorney for Defendant,
    stipulated, at the tirpe of the informal call of the calendar, that the cause should pot be placed on the call-board before the 17th day of May. The cause was not reached on the 17th, and counsel for the respective parties further stipulated that the, same should not be placed on call until a subsequent day in the term — on which subsequent day the trial was had, and judgmer^ rendered for the plaintiff.
    A number of the plaintiff’s witnesses were in attendance, notwithstanding the stipulation, between May 2d and the I7th, and between the 17th and the day of trial, as well as on the day of trial.
   By the Court,

Brown, J.

Plaintiff asks costs for his witnesses who remained in attendance upon Court, notwithstanding the stipulation of counsel relative to'the call of the case. Nothing was said in the stipulation, about the attendance or non-attendance of witnesses. They might, for all that appears, have been here from a great distance, so that their traveling expenses, had they returned home, would have equalled their fees for their attendance through the term.

I think, in the absence of any express stipulation, the pre- ■ vailing party should recover his witness fees for the time they are in actual attendance upon Court. Let the costs in this ca&p be taxed accordingly.


author: Wgodbdff, J.

text:
    Elizabeth Bennett, Appellee, vs. Charles T. Parker, Appellant.
    A new trial on the ground of newly discovered evidence, will not be granted upon evidence which may possibly influence a Court or Jury to render a different verdict. The true eviten an is, would the legitimate logical effect of the newly discovered fact be to reverse the former verdict?

      Calhoun Circuit

      T. G. Pray for the Plaintiff.

      Brown <& Patterson for the Defendant. -
   By the Court,

Wgodbdff, J.

This is a motion for a new tria 1 on the part of the defendant.

Several grounds are assigned for the applications, the las* one of which, the seventh, is understood to be in the present state of the record, the only one seriously urged by the moverán d that is the ground of newly discovered evidence..

The action is assumpsit to recover money collected by the defendant as a Justice of the Peace on notes belonging to th«plaintiff, but sued in the name of one Henry Smith.

The case was tried in the court below, and a judgment rendered in favor of the plaintiff for $35.82 damages, besides costa. The cause was appealed to this court and referred, and judgment rendered on report of the referee for the sum of $39.9# due the 16th of November, 1868.

The findings of the referee, so far as concerns the ground oí the present application, are in effect that the plaintiff was the owner of the notes on one of which the money was collected by the defendant, which is noW in question in this case, that ■they were placed in the defendant’s hands by the agency of Smith, and that Smith never had any property in the notes or ■money collected on them, and that they were sued in Smith’s mame without authority so to do, and that, before the money was paid oyer to Smith, the defendant was notified by the plaintiff that the notes were her property, and not to pay the proceeds to Smith.

The necessary inference from these findings is, that the ques* tion of plaintiff’s property in the notes and the agency of Smith and the knowledge of such agency by defendant were litigated before the referee and that evidence on the question was produced before the referee.

The affidavit of the defendant read on this motion to show the newly discovered evidence, states that the plaintiff had said in the presence of John E. Cooper that Henry Smith had settled with the defendant for the money in controversy in this suit, and that the plaintiff had told one Robert Simpson that said Smith had authority from her, said plaintiff, to collect the notes in controversy herein in his.own name.

Mr. Cooper, in his affidavit, does not support this statement. He says, merely, that he knows that Smith had settled with defendant.

The effect of this evidence is manifestly quite different from that alleged by Mr. Parker in his affidavit, because the plain tiff’s admission of such a settlement would carry on its face an intimation of her assent to it, or that it had been done legally > yet a settlement might have been made between Smith and defendant, and known to the witness without at all implicating the plaintiff. Consequently the affidavit of Cooper does not sustain the allegation of defendant’a affidavit and does not show the newly discovered evidence which his affidavit alleges, but something essentially different in form and subject.

This portion of the newly discovered evidence must therefore be laid out of view in considering the motion, and the residue not subject to this remark can alone be regarded.

We come then to consider the evidence proposed to be given by the other witness, Robert Simpson, that is to say, that the plaintiff told him that Henry Smith had the right to collect the said notes in his .own name.

The firát inquiry suggested as to this piece of evidence is, is it cumulative ? If’ it is, there can be no question as to the impropriety of granting a new trial on that account.

But is it cumulative ? As I understand the authorities, what is meant by cumulative evidence, is further or additional evidence of a fact as to which evidence was given by the party asking a new trial, on the former trial.

Mr. Stace, one of the defendant’s counsel, before the referee, states in his affidavit for the motion, with a view probably to this point, “ that the defendant produced no direct evidence m “ the said trial to prove or tending to prove that the plaintiff “ had authorized the said Henry Smith to sue and collect the “ notes in controversy in his own name.’’

Now it is easy to see that if Mr. Stace had stated that no evidence whatever had been given on the point, it would have been more satisfactory and would have brought the case more clearly within the rules. I notice in passing, by the way, that the word direct is interlined in the affidavit, indicating both the candor of the affidavit and conceding that some evidence was given bearing upon the point now under review.

If the case, however, depended on this affidavit alone, I should entertain considerable doubt as to thepropriety of denying the motion, and should incline to grant it, if the evidence newly discovered were decisive of the case.

It is not by any means every new fact, however, that may be adduced upon a'new trial that constitutes a ground for one. It is not even such a fact as might possibly influence a jury or Court to give a different verdict, which can be allowed to send the.ease to another trial.

The criterion is, would the legitimate logical effect of the new fact be to reverse the former verdict ?

It is true the referee has found as a matter of fact, that Smith unlawfully converted the notes into judgment in his favor, but would it have made any substantial difference if the name of Smith had been' used as plaintiff with the plaintiff’s authority and direction the defendant being notified in due season of the plaintiff’s interest in and actual ownership of the notes which appears by Smith’s testimony in the Court below, and for this purpose also, by the finding of the referee.

The fact of Smith’s agency being shown and made known to the defendant, with notice n< t to pay over the money to him be" fore payment made to Smith, an actual payment to the latter would mot'sjiield him from liability to the plaintiff. The mere circumstance of Smith’s name appearing as plaintiff in the judg* merit is no answer to such a notice and does not neutralize its effect — for it is entirely competent for an agent holding negotiable paper (as this must be presumed to have been) for collection, to use his own name as a party, and it is no uncommon proceeding to institute a suit in that way — Solomans vs. Bank of Eng., 13 East, 135; Story on Agency, 394 — and the fact is no defence to the action. The defendant was bound to know such to be the law and therefore to give heed to the notice- from plaintiff not to pay over the proceeds to Smith.

The legitimate, logical effect therefore of the newly discovered evidence could not be to change the result already attained by the report of the referee: consequently the motion cannot prevail and must be denied with costs.


author: Sutherland, J.

text:
    Arathema Goodwin vs. Daniel Burns et al., and Charles Scheurman vs. Daniel Burns et al.

    1. Error in a decree can not be notice on a motion to set aside a foreclosure sale.
    2. A notice dated and first published December 12,1867, for sale under decree January 18, 1868, is not sufficient, according to the common practice of the Court.
    8. The land having been “ struck off” to a bidder, and the bidder and Commissioner having separated without any notice that the sale would be reopened at a subsequent hour on any contingency, the notice of sale was spent, and a postponement for a week, on such bidder refusing to pay, by inserting notice of such postponement in the newspaper in which th original notice was published — irregular.
    4. But objection for such irregular notice will be waived if not made promptly after the irregularity is known.

      Bay Circuit, in Chancery.

   By the Court,

Sutherland, J.

Petitions have been filed in beh; If of Daniel Burns to set aside two siles of the same mortgaged premises, under the d -erees for foreclosure in these canses: He and wife were mortgagors, and the other parties were severally mortgagees, in three mortgages, which amounted to about $2,900, with costs and taxes, at the time of the sales. The decree in the first cáse was made on the 23d day ot August, 1867, for $731.25, on the first mortgage made to the complainant in that case to secure a contract of indemnity, and to pay certain moneys to a third person for her benefit, $300 of which, at the date of the decree, was not due That decree directed a sale of so much of the mortgaged premises as should be sufficient to satisfy the decree, with costs, but subject to the payments thereafter to become due.

The petition asks that the sale under that decree be set aside, on the ground among others, that no reference was directed by the Court to ascertain the situation of the mortgaged premises, and the same was not determined on oral or other testimony; that the premises could have been sold at far better advantage if divided up into smaller parcels, and a small portion would sell for enough to satisfy the complainant’s claim See § 3575-3579, G. L.

•Whatever might be the merit of this objection, taken in season and for another purpose, the decree is not void. It has been enrolled, and can not now be vacated for a rehearing— Benedict vs. Thompson, Wend., Ch. 446 — nor reversed on appeal. The Court had jurisdiction of the subject and parties, and if the statute relating to the practice in the exercise of that jurisdiction has not been followed, the error can only be taken advantage of by some proceeding which involves a review of the decree. The petition, now under consideration, is not viewed as the decree. While the decree stands, a sale in con-' formity to it will be valid. See Bullard vs. Greer, 10 Mich., 268. Another ground of the motion, in respect to the sale in the first case, isanajleged irregularity in the notice of sale — it is claimed that the notice was not published the requisite time* Six weeks’ notice by publication previous to the sale is required by the practice, and the decree required notice “ according to the course and practice of the Court.” Ireland vs. Woolman, 15, Mich., 253. The first insertion was December 12th, 1867, and the time fixed f< r the st e .’as January 18th, 1868. This was short and'insufficient notice. Olcott vs. Robinson 20 Barb, 148 (See Sheldon vs. Wright, 7 Barb. 39.) The premises were offered by the Commissioner at the-time mentioned in the notice, and were bid off for a sum equal to the decree and costs: thereupon the bidders and Commissioner parted without any adjournment of the sale, to be re-opened on any contingency, being announced. That sale was not consummated; it was abau'doned by direction of the complainant’s solicitors, and the sale postponed to the 25th oí the same month, by inserting notice of it in the same newspaper in which the original notice of sale was published. On that day the sale was again postponed by oral announcement, for three days; and on this adjourned day a sale was made for $100 to the complainant’s solicitor.

A sale having been apparently made on this day fixed in the fiyst notice, and no other time being there mentioned for it to be again opened, the bidders then present would not be likely to look for any advertised postponement. The notice of sale was spent when the, property Was struck off, and the bidders and Commissioner separated. Had the Commissioner, on the property being struck off, given oral notice that if the sale to that bidder should 1 not be consummated, the property would be again offered at another specificed hour, he could at that time, it occasion required, put up the property ior sale again; or adjourn the sale to another day. This would be the proper practice.

Is Burns now entitled to complain of the insufficient notice. The rule in' equity as well as at law requires a party against whom an irregular and voidable proceeding has been taken, to take immediate steps, after he is aware or chargeable with notice of the irregularity, to set aside that proceeding. Irregularity only technical. Wal. Ch. R. 309; 2 John. Ch. 247.

Burns had notice of the postponement to the 25th day of Jan., before that date, and of other facts sufficient to put him on inquiry in respect to the irregular and defective notice. .He did not lose the privilege of redemption by reason of any surprise caused by the mode or time of the notice.

The usual order of confirmation was made on the 13th day of April, 1S68, and nearly six months elapsed afterwards, before the petitions were filed. ' The property, at the date of sale, was not worth over twenty-five per cent, more than the incumbrances oh.it then held for collection by.tfie Complainant’s Solicitors who bid in the property. At the time of filing the petitions, it \yas worth from fifty to seventy-five jier cent- more.

These circumstances, if considered apart from the other grounds of the motion, would obviously require the .court to hold that the irregularity was not, seasonably complained of and is therefore waived.

But if it were true that Burns was absent from Bay City at the time of the sale, and Complainant’s Solicitors had agreed not to sell until his Return, as the petitions allege; that the Complainant’s Solicitors stated that understanding to the Commissioner at. the sale, and that in proceeding to a sale in Burns’ absence they would fullfil their agreement by buying in the property to save costs,'and holding it for a year subject to redemption by payment of the mortgage debts and costs; and if it were also true, that the delay had arisen by his reposing on the faith of being permitted to redeem, such delay would be no prejudice to the motion.

These facts are substantially alleged in the petitions and are relied on as the princpal basis of the applications; if true there is no doubt of their sufficiency.

The showing however satisfies me that the only agreement related to the sale noticed for the 18th of Jan.; that Burns returned before the 21st; was in Bay City on that day; and was informed that one sale was postponed to the 24th, and that the other would be made on the 21st unless he satisfied the debt.— It is clear also, that there was no agreement for any other postponement ; nor any announcement made to the Commissioner at either sale, that Burns would be permitted at' any time after the sale to redeem this property.

The charge that the Complainant’s Solicitors discouraged competition at the sales by disparaging the title, is not supported. Had the fact existed, it would be capable of direct proof by some person present and influenced by it.

The bids were very low.; but it appears to be conceded that mere inadequacy of price is not a sufficient ground for. opening a sale. Two of the mortgage debts have been released and the other satisfied by Scheurman, in whose behalf the purchases were made, and who was finally the owner of both decrees in these cases.

The defendant Burns is at liberty to accept these releases and' ■ take them from the files.

The prayer of the petitioner is denied, but without costs.

[The foregoing opinion has been affirmed by the Supreme Court. — Ed. “ N. P.”]


author: Turner, Judge.

text:
    Maria G. Stockton, vs. John S. Freeman et al.

    A city charter giving authority to prevent the obstruction or incumbering of streets, alleys, Ac., does not authorize the common council to require, by resolution, t\e removal of fences, so built as to appropriate a portion of said streets, by the City Marshal.
    Whether the Charter of the City of Flint gives the Common Council authority to act in case of encroachment upon streets — Quere.

      Genesee Circuit,

      August Term, 1870.
    This is an action of trespass, brought to recover damages for tearing down and removing a certain fence on the northerly side of Black River, in Stockton’s west addition to the City of Flint. The plea is the general issue, with a notice that the defendants will prove under the same, that the fence mentioned in the plaintiff’s declaration was not (at the time the injuries were supposed to have been committed) standing upon or near the northerly line of Black River , but was “ standing in and npon Ann Arbor Street, which is a public highway, and was an obstruction to said street; and that the' plaintiff had been duly notified by the Common Council of th§ City to remove the obstruction” — “ And not having done so, the defendant Freeman, being Marshal of the City, was ordered by the Council to remove the obstruction: and called upon the other two defendants to aid him in so doing.”

      Fenton & Newton, for the Plaintiff.

      II. R. Lowell and L. Walker, for the Defendants.
   By the Court,

Turner, Judge.

Without stopping to inquire as to the sufficiency of the notice given to the plaintiff to remove her fence, it is important to determine whether the defendants were justified in doing what they did do, by virtue of the orders under which they acted. If the fence in question was in the street as claimed by the defendants, it was clearly an encroachment and not an obstruction. - This fact is evident from the testimony of all the witnesses who have testified on that subject. Under the 8th Subdivision of Section (9) Njne of the City Charter, the Common Council have authority to “ prevent the incumbering of .streets, side-walks, cross-walks, lanes, alleys, bridges or other public places in any manner whatever.”

Section 31, among other things gives them power to cause “ the grading, leveling and repairing of all streets and alleys side-walks, cross-walks, parks and public grounds in said City and to prevent the obstruction or encumbering thereof.’’

At a meeting of the Common Council, held on the first day of September, the City Surveyor reported to them that Ann Arbor Street was encroached upon by a fence, and at the same meeting the Council passed the following Resolution,

Resolved, That the City Attorney be, and he is hereby instructed to take the necessary steps to cause the obstructions to be removed from Ann Arbor Street, so that said street may conform to the plat of the same made by the City Surveyor, and presented to the Council this evening.”

At a subsequent meeting of the Council, held, on the 15th of September, their record shows the following :

“ Report presented from the City Attorney, submitting certain Resolutions, and recommending their adoption, to carry out previous instructions of the Council in relation to the removal of obstructions in Ann Arbor Street.”

The Resolutions were then adopted by the Council, and are as follows:

Resolved, That Ann Arbor Street, from Kersley Street to Court Street, be cleared of obstructions eáused by fences placed therein, and all persons having any fence or fences in said street, be required to remove the same within 15 days of the passage of this resolution.”
u Resolved, That in ease; any person or persons, having any fence or fences in Ann Arbor Street, between Kersley and Court Streets, should fail to remove the same within the said 15 days, then the City Marshal is hereby directed and required to proceed to remove such fence or fences forthwith, and report at the first meeting of this Council thereafter, his doings, and the expense incurred thereby, abd such expense shall be paid by the owner of such fence.”
“Resolved, That in clearing said Ann Arbor Street of said obstructions, the survey of said ' street by the City Surveyor Newcombe, be the guide to determine what fences are encroachments on said street.”
R'-soired, That the City Marshal forthwith serve a copy of the foregoing Resolutions upon all persons owning property on said Ann Arbor Street, and having a fence or fences encroaching on said street.”

It will be seen from these proceedings (and other evidence ■in the case) that the City Surveyor reported that the fence in question (according to his survey) encroached upon the street; that the Common Council then passed one resolution ordering the street to be cleared of obstructions caused by fences placed therein, which the surveyor had reported as encroachments.

And another, that in clearing the street of obstructions, the survey aforesaid should be the guide to determine what fences are encroachments.

And another directing the Marshal to serve -a. copy of the Resolutions on “ all persons having fences (not obstructing.) but encroaching on said street.

It is evident that the Common Council in passing these Resolutions, regarded the encroachment upon a highway the same as an. obstruction, or in other words, that they were one and the same thing. The Statute provides what the proceedings shall be when a highway is encroached upon, and also where it is obstructed : and the proceedings in the two cases are entirely different. lst. C. L. 867 — Laws of 1861, 153. The City of Grand Rapids vs. Hughes 15 Mich. 54.

As no proceedings have been had which are authorised by the charter or by the general statutes of the State, for the removal of encroachments, it follows that the resolutions of the Common Council were no justification to the defendants, and that the plaintiff is entitled to Recover her damages, proved to be $10, together with costs.

Whether the charter of the City of Flint gives the Common Council authority to act in case of encroachments upon streets: — (fuere.


author: Mitchell. J.

text:
    William H. Barse, vs. John Ernst, Mary Ernst, et al.

    When a third person, an Attorney, intrusted in preserving the property for the benefit of his clieuts intervenes and deposits money to secure the payment of the judgment, but with the understanding that the execution shall be enforced for his benefit, and the defendants make no effort to pay the execution, but trust to the interposition of others, and pay or secure nothing. Geld, That it be treated as an equitable assignment of the execution and judgment for the benefit of the intervening party, and that the plaintiff assign to the party so depositing, or in case he fail to do so, that the execution be enforced and sale made for his benefit.

      Bay Circuit,

      June 1870.
    A-Motion to set aside levy, notioe of sale and execution and for a perpetual stay of execution.

      Green & Schofield for Plaintiff.

      Taylor & Wheeler, for Defendant.
   By the Court,

Mitchell. J.

By the proof made by affidavit, it appears the plaintiff having obtained a judgment in Justice’s Court took out an execution which was returned unsatisfied and a transcript of the judgment and proceedings filed in this Court. An execution was then placed in the hands of the Sheriff who then had another execution against the defendant, upon which he had levied upon and advertised real estate for sale. Soon after receiving the execution in this ease, Mr. Shepard, an attorney of this Court, who was attorney for plaintiff in first execution, and had for clients some other claims, by mortgages, against the same real estate, and who was desirous of perfecting his client’s liens handed to the Sheriff the amount of the Barse execution, with costs, to be treated as a deposit to secure its payment upon the sale of the property upon the first exeeution, and if that should be paid then to sell upon this. The Sheriff gave the money so deposited to the attorneys of Barse, to whom he stated the manner and nature of the deposit, but they not fully understanding the facts treated the deposit as a payment, and entered upon the docket a satisfaction'of the judgment, and gave the money to the plaintiff, who received and treated it as payment of his judgment. All parties connected with the deposit by Shepard, underatanding that the execution and sale were to be continued for the benefit of Shepard, who had deposited the money.

The defendants do not claim that they paid any part of the money or have done anything to satisfy or discharge the judgment or execution.

I think this case broadly distinguished from the cases cited in most of which there were efforts to continue the execution for the benfit of the Sheriff,who had continued or changed levies upon other securities and had provided for payment of the execution.

I In this case it is ordered that the plaintiff, Barsé, assign the judgment and execution to Theodore F, Shepard, dated back to the time when such deposit was made by said Shepard, and in case he refuse to do so, that this order shall have the effect of such assignment, and that the said motion to vacate be and the same is hereby overruled and denied, and that said execution, notice of sale and sale be continued and proceed until said executions are satisfied and paid by the defendant or by the sale of the property.


author: Upson, J.

text:
    Charles D. Sprague, Plaintiff in error, vs. H. M. Devens, Defendant in error.

    A constable having £uly served a writ of replevin, omitted in his return to state the time, of service, but by leave of the Court, the day after judgment was rendered, amended his return by inserting the day of service. Held, on certiorari, that it was legal and cured the defective return.
    2. The plaintiff in replevin, before a justice, filed bond on applying for. writ, in the penal sum of $50 only, instead of $100, under § 3695, O. L., and proceeded to judgment, defendant not appearing. Held erroneous and judgment reversed.

      Branch, Circuit,

      April 1870.

      Certirari to Justice’s Court.
    The suit below was in replevin commenced by the defendant in error, by writ issued Dec. 2d, 1869, and made returnable Dec. 14th.
    The bond given by the plaintiff below, under § 3695, C. L., was the penal sum of $50 Gnly, and not $100. The constable served the writ Dec. 2d, 1869, by replevying the property therein described, and by leaving a certified copy of the writ at the residence of the defendant, with a person of proper age, the defendant not being found, but in making his return of service omitted to specify therein the day when he served the writ. On the return day, Dec. 14th, the plaintiff appeared and filed his declaration and took judgment, the defendant not appearing. On the next day, Dec. 15th, the justice allowed the constable to amend his return so as to show the day when the writ was served. The defendant below subsequently sued on this writ of certiorari to remove the proceedings to the Circuit Court. The allegations of error chiefly relied upon were the insufficiency of the bond and the defeet, in the return of the officer to the writ in not showing affirmatively a service six days before the return day thereof, at time judgment was rendered.

      Levi Sprague, Attorney for Plaintiff in error.

      J. H. McGowan, Attorney for Defendant in error.
   By the Court,

Upson, J.

By § 3692, C. L., the constable serving any process is required to “ return thereon, in writing, signed by him, the time and manner of executing the same,” and by § 3696, C. L., writs of replevin are required in Justices’ Court to be “ served not less than six days before the return thereof.’’ In this case the constable in the first instance omitted to state in his return the time of service, and under a similar statute in New York, where such omission occurred and the Justice rendered judgment in favor of the plaintiff, it was held fatal on certiorari, and the judgment was reversed; the return'of the certiorari still showing the same return of the officer on the writ of replevin. 2 Hill, 517; 17 Wend., 517.

But it appears by the return now made to the writ of certiorari in this case, that on the next day after the rendition of the judgment, the constable, by leave of the Court, amended his return so that it gavé the actual time of service, and that it was served, as now appears, within the time required by law, This we think the constable might, with leave oí the Court, lawfully do under the statute, and that no advantage can now be taken of it. See §§ 4417, 4418, 4419 and 4422, C. L.

Also — 14 Mich., 348,, and 1 Mich., 344 — service in either mode — i. e., personally or by copy when property replevied— authorized the Justice to proceed with the case. Secs. 3699, 5016 and 5026, G L.

But the bond in this case was defective, being in a penalty less than $100, as required by statute to authorize the Justice to issue the writ. Sec. 3695, O. L.

This is'a material requisite to the obtaining jurisdiction, and in this proceeding is not amendable here — this being a hearing on certiorari and in another Court. 5 Mich., 33 and 511; 6 Mich., 69; 19 Maine, 219.

That it is a material defect, see § 3695, C. L.; 2 Mich., 337; 3 Denio, 54; 1 Denio, 184; 20 Wend., 673; 19 Wend., 632; 18 Wend,, 521 and note.

The judgment below must therefore be reversed, with costs, and restitution of the property replevied awarded. 1 Dong., Mich., Rep., 302.


author: Blackman, J.

text:
    Miller vs. Keen.
    The subscription of a notary public to a jurat need not be sealed.
    Cass Circuit,

    1870.
    Suit on a note. The defendant had filed with his plea an affidavit denying his signature, &c. Sworn before a notary public,. The jurat was under the notary’s hand, but not under seal.

      Atwell, for Plaintiff,
    contended that § 461, G. L., required there should be a seal to the jurat or it was not evidence.
   By the Court,

Blackman, J.

The simple point to the objection is, that there is no proof of the swearing of the affiant, because no seal is attached to the notary’s signature. Paragraph 461, C. L., does not say “ his certificate without a seal shall not be evidence.’’ The whole section, however, evidently refers to his acts under mercantile law, which requires a seal to his certificate.

It has never been the practice to affix his seal to acts authorized by the statute solely. ,


text:
    The People vs. J. W. Lilly.
    The direction in \ 2, S. L. 1659, p. 392, to the prosecuting attorney to endorse on the inform ation the names of witnesses known to him at the time of filing the same, is for the ben e fi t of the defendant, and therefore mandatory.
    Such endorsement is no part of the body of the information, and may be waivedby th e defendant.
    Where no names are endorsed, the defendant may more to have it done before pleading.
    Where witnesses names are endorsed, it will be presumed the prosecuting attorney has done his duty.
    Should the prosecuting attorney call a witness whose name is not ou the information, dur i n g the trial, the defendant may object to his being sworn; but this objection is addresse d t the discretion of the Court.
    Where the witness called, testified before the examining magistrate, and the defendant did not claim he had omitted to make that preparation for trial which he would have done had his name been endorsed, the objection was denied.
    The prosechting attorney, with leave of the Court, may endorse their names on the infor m ation at any time.

      Cass Circuit,
    1870.

      Howard & Sullivan for Defendant.

      Miller for the State.
    The prisoner being on trial for larceny, the prosecution.call ed E. F. Howe as a witness.

      Howard, for defendant,
    objected to his being sworn, beca úse his name was not endorsed, with the other witnesses, upon the information.
    In the case of the People vs. Van Buren no names of witnesses were endorsed, and Smith, the defendant’s attorney, was also heard.

      Miller stated it had not been the practice in Cass Circuit to endorse names of the witnesses, and asked leave to do so, on both informations, and cited 25 N. Y. — Dawson’s case.
    It appeared Howe testified before the examining magistra te.
   By the Court,

Blackman, J.

The provision contained in § 2 , Act 138, S. L. 1859, was no deubt incorporated into this law from § 6028; G. L. It requires that the prosecuting attorney shall endorse the names of witnesses known to him upon the information.

In both cases it was prescribed that the defendant might be fairly “ confronted with the witnesses against him,” and prepare-for his trial; and although in-the form of a direction to the officers of the court, and no part of the information or indictment, and prescribing no penalty for its neglect, yet being of essential benefit to the defendant, miist be held mandatory on the attorney. Being for the defendant’s benefit, He may waive the endorsement. After the information is filed, it is subject to the inspection of the prisoner and his counsel, and if he pleads thereto without requiring such indorsement he must be held to have waived the indorsement which should have been made before filing. If no names are thus indorsed the information is not prepared for filing, and if filed may be taken from the files or the attorney ordered to indorse according to the circumstances. In this stage, viz: before pleading, the proper course would be an order nisi.

Where names are indorsed it is to be presumed the attorney has done his duty and will call no others. Should he call others, there is no other remedy left the defendant but to object to their being sworn.

The ground of objection is not want of competency in the witness, but neglect of duty by the attorney, and the consequent surprise and want of preparation by the defendant. Such objections are addressed to the discretion of the Court. For these reasons the objection of Lilly is denied and the attorney has leave to indorse the information vs. Van Buren.


text:
    Lee vs. Chambers.
    The summons In a writ of replevin “to appear before the undersigned, a Justice of the Peace of Buchanan, in said county, at my office,” 1b sufficiently certain.

      Berrien Circuit,
    1870.
    Motion on special appeal.

      O. L. Goolidge, in support of the motion,
    contended it was uncertain as to where the office was, and cited 1 Cow. T. 458; Haines’ Justice, 168; C. L., §§ 3665, 3695.
   By the Court,

Blackman, J.

The Court takes judicial notice that Buchanan is a township in Berrien oounty, and that the i us tice must have his office in that town. The phrase “ of Buchanan, in Said county at my office” is in substance the same as at my office in the township in which I am a justice.”

Motion denied.


text:
    Jay R. Monroe vs. James A. Rogers et al.

      Van Buren Circuit,

      August, 1870.
    • This cause being regularly on the calendar at each of two preceding terms, was continued by consent of parties “ without terms.” The plaintiff recovered, and included in his bill of costs five dollars term fee for each of the terms at which the case was continued. The Clerk, on motion of defendant, disallowed and struck out the term fees. Plaintiff now moves for a re-taxation.

      S. H. Blackman, for Plaintiff.

      Stephenson & Barnum, for Defendant.
   By the Court,

Brown, J.

Plaintiff is entitled to the disputed items. The words without terms ” as used by the parties in relation to a continuance, cannot be construed to mean a relinquishment of the term fee. Continuance “ without terms,” is. equivalent to saying,no terms shall be exacted as a condition to a continuance.” The term fee provided by law, Sess. L. 1867, p. 84, is to be paid to the prevailing party “ for every circuit or term at which the cause is regularly on the calandar and not reached, or is postponed, excluding that at which it is tried or heard,” See Root and Midler vs. Final, 1 Mich., N. P., 199.


text:
    Cutler ads. Brickel.
    The clerk can not assess the damages for a breach of the covenant of seizin in a warranty deed.

      Berrien Circuit,

    1870.
    B sued C for a breach of his covenant of seizin in twenty acres, parcel of larger tract, in an action of covenant.
    C was defaulted. The rule absolute recited “ that the said plaintiff have judgment therein ” and judgment was entered on the Clerk’s report. A motion was now made to set aside the judgment as irregular.

      Muzzy for Defendant.

      J. Brown for Plaintiff.
   By the Court,

Blackman, J.

The damages in this case are unliquidated and the contract is' not one for the payment of money and therefore not within § 4424 C. L.

The judgment is set aside.


author: Mitchell, J.

text:
    Edmund Fitzgerald vs. The Trustees of the First Presbyterian Church of the City of Port Huron.
    An assignee of a mechanic’s lien, under ch. 164, O'. J6.,as amended hy S. L. of 1869, pp. 219 to 223, cannot, by a petition in his own name, enforce the lien given by the statute.
    The right of petition to enforce the lien is given to the contractor or sub-contractor; only.
    The law creates a new remedy, is specialin its character, must be strictly construed andafl strictly pursued in all respects.
    The lien is personal to the contractor or sub-contractor, and is not assignable.
    The constitutionality of the law in giving speeial powers to a Judge at Chambers is a subject of doubt.

      St. Clair Circuit, in Chancery,

      July, 1870.

      John Atkinson and A. E. Chadwick, Solicitors for Complainant.

      O. B. J. Atkinson and B. G. Farrand, for Defendant.
    This case was commenced in vacation, proofs taken and argument had at Chambers.
   Mitchell, J.

This is a special proceeding to enforce a lien under C. L. ch. 154, as amended by Act 127, S. L. 1869, p. p, 219 to 223.

This statute as amended, gives a special lien upon the land on which the building or wharf may be, not exceeding a given quantity of land, to every person who shall, by contract, express or implied with the owner, part owner or lessee of any piece of land, furnish labor or materials for constructing or repairing any building, wharf, &c., on such land.

Such lien will not attach unless the contractor or some one in his behalf makes and files a certificate containing a copy of the contract, or if not written a statement of its terms and a description of the land on which the lien is claimed, &c., which shall' be recorded by the register of deeds in the record of mortgages; nor shall such lien attach unless notice of the filing be given to the owner, part owner or lessee aforesaid.

Another section provides that the lien shall cease at the end of six months from the time when, by the terms of the contract the money to be paid is due thereon, unless proceedings to enforce the lien shall have been sooner commenced.

When by the terms of such contract, any sum shall remain unpaid for sixty days after the same is payable, the contractor or sub-contractor may file his. petition in the Circuit Court in Chancery, in the county in which the land may lie, either in term or in vacation, for the enforcement of such lien, and the Court or Judge may make such order for appearance, publication and answer as may be proper under the circumatances.

After providing what the petition shall contain, the statute provides that “ the said Court or Judge thereof shall proceed to hear the matter in a summary manner, either in term or in vacation as shall be'directed by said Court or Judge, in each case, from time to time ; and every act, matter or thing, which this chapter provides shall be done by the Court, may be done by the Judge thereof in term or in vacation.’’

After providing for sale or leasing, on the decree, the act provides that judgment may be entered and execution issued for any balance unsatisfied by the sale or lease, the same as upon other decrees of the Court.

. It will be seen that this act confers unusual and extraqrdinary powers, not only upon the Circuit Court-in Chancery, but upon the Circuit Judge at Chambers. As to the .constitutionality of which, there may well be serious doubts, in view of the constitutional provisions limiting judicial powers to certain named tribunals.

Leaving such possible doubts to be determined by the Supreme Court, where such questions can alone be properly determined, this case is to be considered and determined upon other questions that are in my opinion less doubtful.

By the petition, it is stated that the contract was between Samuel A. Marshall, builder, of the one part, and Robert Wilson and others, trustees of the First Presbyterian Church of the city of Port Huron, of the other part. That it was Marshall who contracted with the individuals named trustees, &c., and the petition does not state (nor does it anywhere appear) that the complainant was a contractor or sub-contractor, but he is claimed to have endorsed paper and become surety for the contractor, and is an assignee of the contract. The petition also states that it was by the parties, understood that the building spoken’of was to be a. church for the First Presbyterian Society, &o., to be erected on the lots described in the petition. That said trustees áre the owners of said lots and that Marshall in pursuance of the contract has erected a building on said lots and furnished materials therefor at an expense of over $4,000. That one McDonald was superintendent and the architect employed by the trustees, that the building was erected as he directed, and that on the 2d of November, 1869, the architect gave Marhsall á certificate that he was then entitled to $766 on account of the contract for building the church, and that on the 6th of November, he gave a similar certificate that Marshall was.entitled to the further sum of $458 on the same account, and that as appeared by both said certificates, the trustees of said church were then indebted to Marshall in the sura of $1,199. That' Marshall then had a lien upon the church and lots for that amount which was then due to him. That Marshall, being embarrassed in procuring material, &c., applied to complainant who became his surety and endorsed for him to an amount of over $1,400, upon Marshall’s making an assignment to him of the amount due on the contract as follows :

“ For a valuable consideration to me paid by Edmund Fitzgerald, I hereby assign the above contract and all payments and claims due thereon to him, his heirs and assigns.
[Signed] S. A. Marshall.”
Dated November 6, 1869.

. That said arrangement was made with the knowledge of the trustees, and that petitioner has frequently applied for payment» which has been neglected and refused ; that Marshall delivered to the petitioner the possession of the building, and he has since then retained full possession, and still holds the same, subject to the right of Marshall to go on and complete his job under said contract; that April 19th, 1870, Marshall made and filed with the register of deedsTfis certifieste, setting forth a copy of the contract, in which he stated that the trustees are the owners of the lots on which the building is erected, describing them; that he had erected a building thereon; that there was then his due $1,199 over and abóve all credits, and that $2,900 was yet to become due, and that “ I claim a hen upon said lots and the appurtenances for the sums aforesaidthat this certificate Was sworn to by Marshall, and was filed and recorded on the same day — April 19,1870; that on the same day Marshal served upon the trustees a notice that he had filed the said certificate. The petition then alleges that by virtue of said contract, assignment, certificate and notice, the petitioner has a lien upon said lots and appurtenances for the sum of $1,199, and prays for proper order for appearance and the sale of the lots, under the statute.

The contract, as set forth and proved, is “ between'S. A. Marshall, builder, on the one part, and Robert Wilson, Peter B. Wright, Edward Cowan, Daniel Robinson and Alexander Stewart, Trustees of the First United Presbyterian Church of the City of Port Huron, on the other part.” By its terms, Marshall agrees to and with said Robert Wilson and others, (naming them, but not with addition of “ as trustees,” <fcc.,) to erect the building, furnish materials, &c., for the sum of $5,500, in consideration whereof said Robert Wilson and others, (without addition of trustees or any other , description) promise and ageee to pay to said Marshall on the certificate of--, the architect, &c. It is signed by Marshal, and by Wilson and the others, without any addition of trustees” or other description, but by their individual signatures, without addition.

By the proofs, it appears that the petitioner, after procuring the assignment, went to the trustees and asked their assent to the assignment, and that he be substituted, in place of Marshall, This was refused, or not agreed to, and the .assent written bn the contract to that effect was not signed. While the trustees knew that Marshall had signed the assignment to Fitzgerald, they did- not give any direct assent to the assignment, but treated it as if their written assent was necessary to perfect it, and demanded security that Marshall would go and complete the contract on his part, and a bond or paper was drawn for that purpose, but was not executed by any one. Marshall, in his testimony, says the bond was not executed because the trustees would not assent to the assignment.

After the assignment was signed, Marshall went on with the work the same as before, until, for want of pay or means, he was compelled to stop. He testifies that he did so, and continued the work for Fitzgerald, but there was no apparent change in the manner or direction of the work, and the trustees paid Marshall and those who furnished him materials, various sums, entirely ignoring Fitzgerald’s claims.

In the view I take of this case, it is unnecessary further to review the proofs, which are mainly as to the amount done on the job, payments, and balance claimed.

The statute under which this proceeding is commenced is a special and peculiar one, and must be strictly construed and as strictly pursued. It in distinct terms gives the lien to the contractor or sub-contractor, and makes- it personal to them, and to none other. The contractor or sub-contractor are alone authorized to file a petition, and this right cannot be extended to an assignee. There are no words in the statute in any way implying that such lien may be held or enforced by an assignee, and in this case it seems to have been sq understood when Marshall made his certificate of lien five months ago after the assignment to Fitzgerald, and only a few days before the petition was filed. In that certificate he states that there is then due to him the $1,199 previously assigned to Fitzgerald, and says: “ I claim a lien upon said lots and appurtenances for the sums afore said.” This claim was not, on its face, for the benefit of Fitzgerald, but was personal to Marshall; Fitzgerald files no certificate of claim of lien, but depends on Marshall’s claim. The claim made by Marshall cannot inure to Fitzgerald’s benefit.

I do not look upon this proceeding as demanding or authorizing the exercise of' the ordinary chancery powers of Courts of equity, but however much I might wish it otherwise, I feel myself limited by the terms of a statute creating a special tribunal with special powers, or giving to an existing tribunal special powers to enforce a lien that is created by the same statute; and which in effect denies the defendants the right of trial by jury.

In view of the whole case it is ordered and decreed that the petition be dismissed with costs, but without prejudice to any other legal or equitable claim or remedy the petitioner may or might have if these proceedings had not been taken.


text:
    Samuel A. Marshall vs. The Trustees of the First Presbyterian Church of the City of Port Huron.
    A contract cannot by assignment be divided so as to give separate liens or causes of action.
    An assignment, ‘ For a valuable consideration to me paid by Edmund Fitzgerald, I hereby assign the above contract, and all payments and claims due thereon, to him, his heirs and assigns” — is an assignment of the whole contract, and the assignor cannot in his own name enforce a lien for any balance afterwards becoming due, at least until after reassignment.
    A contract with A, BandO, described to he “trustees,” but who promise and sign without the addition of “ trustees,” Ac., is a personal contract, and does not create a lien upon the property of the society of which they are trustees, hut is personal only.

      St. Clair Circuit, in Chancery,

      July, 1870.

      John Atkinson and A. E. Chadwick, Solicitors for Complainant.

      O. B. J. Atkinson and B. C. Farrand, Solicitors for Defend, ants.
    Case commenced and heard in vacation.
   Mitchell, J.

The facts involved in this case are all substantially set forth in the statement of the case of Fitzgerald against the same defendants, and differs from that in the fact that in this ease Marshall, who assigned to Fitzgerald seeks to (enforce a lien made by the same contract over and above the amount claimed to have been assigned to Fitzgerald, and this case is decided without any further recapitulation of the facts.

The petition is filed against Robert Wilson and others, trustees, &c., and their successors in office, states the assignment to Fitzgerald of $1,199, and that the balance, about $2,900, belongs to petitioner, and that he has a. lien therefor upon the church proprety.

I am compelled to hold that the contract, and resulting lien, is an entirety and cannot be divided into separate claims or liens, and that separate proceedings by different or the same parties under the- same contract cannot be maintained unless it may be that the statute authorizes the contractor and sub-conractor to set up and file petitions for separate lieDs. It is clear such seperati<>n does not extend to the contractor and his assignees.

That the contract is with Robert Wilson and others, as indiv iduals, and not as trustees, the undertaking promise and signature being by them individually, and not as trustees, and not ndertaking to bind the church, the church is in no way bound by the contract of- those individuals. The fact that the words “ trustees ” &e., follow their names in the part of the contract, stating between whom it was made (but being no part of the promise, and they promising and assigning without that addition) can make no difference, and the words trustees, &c.,” must be treated as descriptio personae only, and not stating that they contracted as trustees or in what capacity.

That the assignment to Fitzgerald was an assignment of the .whole contract, and not of the part then due only, but of all to become due, and it so far divested Marshall of all interest therein as to put it out of his power to sue for any amount due on it or to enforce any lien he might otherwise have had under it until after reassignment.

That the contract being with Robert Wilson and others individually, and they not individually owning the lands upon which the lien is sought to be enforced, this petitioner has no lien upon the church property.

It follows that the petition must be dismissed with costs, but without prejudice to any other remedy at law or in equity


text:
    In the matter of the Estate of John W. Labar, upon the Appeal of Alanson Labar, from the Decree of the Probate Court.
    To entitle one to an appeal, under £ 8631, C. L., from a decree of the Probate Court, it must appear in the reasons assigned and filed, that the party is “ aggrieved” by such decree,
    A was an heir-at-law and legatee of B, deceased. B’s will made a bequest of $10 to- A, The' final accounting of the executor showed nearly three thousand dollars remaining in his hands — being largely in excess oi all specific legacies. The decree for distribution directed the payment of-A’s legacy. A appealed to the Circuit Court, alleging, among others, as reasons, improper allowance, by the Probate Judge, of claims of the executor, and want of notice and insufficient notice of final accounting. Held, that appellant had not shown himself aggrieved,” and that the appeal should be dismissed.

      Kalamazoo Circuit,

    August, 1870.
    John W. Labar died July 5th, 1859. His will was admitted to probate, duly- proved and allowed September 15th, 1859. One of the provisions of the will reads as follows : “ I give and bequeath to my son Alanson, and to each of his four children, Humphrey, Alice, Emory and Edith, ten dollars.” October 4th, 1859, letters testamentary were issued to S. B. Nichols, one of the executors named in the will. April 17th, 1869, Nichols filed his petition praying for a final settlement and accounting of his administration. May 15th, 1869, the Probate Judge ordered that Saturday, 22d of May following, be assigned for the hearing of the petition, and directed that said order be published in the Kalamtnoo Telegraph for five successive days previous to the-day of hearing. On the same day the heirs-at-law of the deceased, with the exception of Alanson Labar, signed and filed with the Judge of Probate a request that the 22d of May be fixed as the time for the final settlement of the accounts of the executor.
    On the day fixed for a final accounting, the printers’ affidavit was filed, showing that the order of hearing had been published “ at least once in each week for one successive.week — that the first publication thereof was on the 17th day of May, A. D. 186 and thereupon a final accounting was had. This accounting showed the executor charged with real and personal property of the estate, $4,276 52, and credited with real estate on hand....................................... $750 00
    Debts paid by executor........................ 309 73
    Taxes paid by executor....................... ‘ 20 03
    Losses on personal estate..................... 57 06
    Expenses of administration and care of estate ... 94 67
    Í uneral expenses of Maria Labar .............. 48 25
    Percentage allowed executor____:. ............ Ill 73
    $1,391 47
    Leaving in the hands of the executor $2,885 05, which the Probate Judge ordered to be distributed as directed by the will: Ten dollars to Alanson Labar; the same amount to each of his. children, mentioned in the will, &c.
    The decree settling the account and ordering a distribution of the estate was duly entered. Thereupon, Alanson Labar appeals to the Circuit Court, alleging as grounds for such appeal :
    1. That he had no notice of the accounting.
    2. The notice given was illegal
    3. The decree preténds to ascertain the legatees and direct distribution under the will, as well as pass upon the account of the executor.
    4. No notice given for hearing an application for distribution, or to ascertain who are heirs or legatees.
    5. Insufficiency of notice of hearing of petition for accounting.
    6. Collusion between executor and other legatees to prevent appellant from receiving notice of final accounting.
    7. The account as allowed does not show date of twenty-three items charged against estate.
    8. The account contains an item of $19.64, not allowed by commissioners.
    9. The account contains items furnished to the family without any order from the Judge of Probate for that purpose.

      10. It fails to account for the rents and profits of the estate.
    11. It fails to account tor the use and income of personal estate.
    12. It does not show any of the real estate sold, and still accounts for but a small portion of it.
    13 It contains items- usual on the sale of real estate, but does not show any sold.
    14. The fees and charges of the executor are excessive.
    15. A large portion of the items allowed are not supported by proper proof.
    A motion is now made to dismiss the appeal.

      Severens & JBurrotcs, for the motion, insist :
    The legacy given by the will to the appellant is fully provided for and ordered to be paid by the decree appealed from.
    The appellant is not aggrieved, and does not come within the statute.
    No interest of his is injuriously affected, which is the test of the right to appeal. 6 Gray, 137; 3 Chandler, 21; 2 Mass,, 140; 11 Mich., 344; 12 Mich., 427.
    The appellant is obliged, by the statute, to give his reasons for appealing.
    He is confined to such reasons upon the. trial of the appeal. 21 N. H., 188, 544; 47 Id., 88, 407; 18 Pick., 1.
    In this case there is no shadow of pretence given by the reasons for appeals tending to show that the appellant is aggrieved.
    On the contrary, it affirmatively appears from the record, that the appellant is not, and could not be, injured by the decree appealed from.

      T. R. Shencood, contra:

    It appears by the will, the record in the case, and in the reasons assigned, that the appellant is not only a legatee, but an heir-at-law of the deceased.
    It further appears by the record that the other legatees are to support and maintain the widow of the deceased from the estate.
    That several of the legatees are minors and children of the appellant, and others of the legatees are brothers and sisters of the appellant.
    The first question raised on the motion is, does the appellant occupy such a position that his interest may be injuriously affected by illegal proceedings on the part of the executors, or the allowance by the Judge of Probate of improper charges in his account against the estate, or by the executor failing'to account for all the property and the income thereof belonging to the estate. If so, then he is an aggrieved party, and may of course appeal. 3 Eng., 268; 9 Md., 72; 42 Barb., 274; 18 Pick., 1; 2 Mass., 140; 2 Doug., Mich., 299; 51 Maine, 423; 20 Iowa, 16; 9 Pet., 174; 35 N. H., 48.
    The appellant in this case being not only an heir, but legatee, under the will, of the estate, becomes by our statute liable to pay any future debt which may arise against tfye estate of the deceased, to the amount of the estate of the deceased which has come to the appellant by virtue of the will, or by reason of his being heir-at-law, in a rateable proportion to the amount of said estate received by the other legatees and heirs. See 2 O. L., pp. 895 and 896, § 49, 50, 51, 52 and 53.
    And certainly in such case, and which may hereafter afise, the appellant, both as heir and legatee, would be interested in having the estate properly administered, and as much of it go to each of the other legatees as they are lawfully entitled to,
    Among the reasons given for the appeal are, collusion in the accounting, between the executor and a portion of the legatees; that the executor had failed to account for nine years’ rents and profits of the estate; that he had been allowed more fees than the -statute authorizes
    This appeal has been regularly taken ¡under the statute, and the appeal has been properly filed in the Circuit Court. After tiie appeal is taken and filed, if regular, the Court can only make an order affirming or reversing the order appealed from, and the appellant is entitled to have the case heard iipon its merits. C. L„ p. 1038, ^ 3635, 3640, 3641; 15 Wis., 392; 12 IFis., 490.
    For the above reasons, and upon the above authorities cited, tbe appellant insists that he, being ah heir-at-law of the deceased, a legatee under the will, liable to the support of his mother in case of a failure of the estate, and liable to contribute pro rata for indebtedness of the deceased in case of failure of sufficient estate — is interested in the amount of the estate to be distributed to all the legatees, and has the right to test the correctness of the executor’s account, and in- so doing has the right to bring this appeal; and that this motion be denied, and the case be allowed to proceed upon its mei'its.
   By the Court,

Brown, J.

The right to appeal, .in this case, from the decree of the Probate Court, is claimed under § 3631, C. L. This provision authorizes “ any person aggrieved” to appeal, and requires him to assign his reasons. The appellant has assigned fifteen reasons. Do any of them show that he is or can be aggrieved by the decree ? I think not.

It is contended that the record sent up to this Court, with the appeal, shows that the appellant is legatee and heir-at-law, and that he therefore has such an interest in the estate as that he may be prejudiced by an allowance- of improper claims on the part of the executor. As legatee, he is entitled to ten dollars. The accounting shows there is sufficient in the hands of the executor to pay that sum, and the decree directs it to be paid. The will has been duly proved and it does not appear that any appeal was taken. Though heir-at-law, the appellant takes under the will. His possible liability, under a certain contingency, to provide for his mother, and to contribute toward the payment of his father’s débts, in case of a failure of sufficient estate, over and above legacies provided for in the ■will, are considerations too remote to satisfy the Court that he has shown himself aggrieved.”

But it is insisted that the appeal has been regularly taken, and that this Court must hear the case on the merits and either affirm or reverse the order appealed from. The statute, §3635, G. L., provides that when a copy of the record of the proceedings appealed from, and the reasons therefor are filed in the Circuit Court, such Court shall proceed to the trial and determination of the question according to the rules of law ; and if there shall be any question of fact to be decided, issue may be joined thereon, under the direction of the Court, and a trial thereof had by jury.” Paragraph 3641 provides that the Circuit Court may reverse or .affirm, in whole or in part, the sentence appealed from, * * * or may take any other order therein, as law and justice may require.

A case cannot be tried upon its “ merits ” unless the issue presents merits. A case upon the merits ” is one that rests upon the justice of the cause, and not upon technical grounds only. The decree of the Probate Court directed payment to the appllant of all that the will provided for him — all that he was entitled to. It appears from the record, that exact justice has been awarded to the appellant. An order must be entered dismissing the appeal, with costs to the appellee; and the Clerk of this Court will transmit a certified copy of the order to the Probate Court. •


author: Dewey, J.

text:
    John Horsman vs. Andrew C. Bruce.
    An affidavit in attachment, stating that defendant is about to assign, dispose of, or conceal, Ac.,” is good.

      Lapeer Circuit,

      August, 1870.
    For motion, Gashill & Greer.

    Contra, S. Y. & C. P. Thomas.

   JBy the Court,

Dewey, J.

This is a motion by defendant to quash the writ of attachment on the ground of a defective affidavit.

In the words dispose of or conceal,” “ or ” is used copulatively, “ not to connect two distinct facts of different natures, but to characterize and include two or more phases of the same fact, attended with the same results.” Sec. 102, Brake on Attachments, “ To dispose of,” is a comprehensive term, and “ to conceal ” would be one method of disposing of the property ; and. in most cases it would be difficult for a party to swear as to the particular method of the disposition about to be made of defendant’s property. The motion must therefore be denied with costs. Sec. 3, Stewart & Porter 335; 9 Yerger, 429; 10 Smead & Marshall, 413; Id., 63; 5 Porter, 77.


text:
    Matthew Wiley vs. Albert R. Foster.
    Where a party agaiusfc whom a judgment hnd been, rendered in Justice’s Court, duly made and filed with the Justice his affidavit and bond with sureties for an appeal theretrom within five days thereafter and paid the costs taxed against him in the judgment, hdd that the appeal was so far perfected as to transfer the cause to the Circuit Court and ouut the jurisdiction of the justice over the judgment, notwithstanding the fee of one dollar for making the return had not been paid to the justice.
    The justice may waive the payment of his feo, and if he make return the question of payment cannot be raised to effect the appeal. It is not a jurisdictional fact or question*, and the jurisdiction of the Circuit Court does not depend on the will of the justice la respect to it, and where he waives its payment and afterwards refuses to receive itot? to make return, the Court on motiou and ou a showing of these facts, ordered a retar» to be made by the justice.

      Allegan Circuit.

      Oct., 1870.
    I this causo a judgment having been rendered iu favor of the plaintiff, against the defendant, before a justice of the peace, the defendant within five days after the rendition thereof, made and filed with the justice his affidavit for an appeal therefrom to the Circuit Court, and also a bond with surities, ap_ proved by the said justice, and at the same time paid to the justice the costs taxed in favor of the plaintiff and included in the judgment. As ho was about leaving the office the justice iiot formed the defendant that he had still to pay him one dollar for making his return. The defendant then offered to the justice a. five dollar bill, but he not being able to change it remarked to the defendant. “ Never mind, you can hand*it in to me at any time,” or used words to that effect, and the defendant left without paying the dollar.
    A few weeks after, the defendant not having paid the justice the dollar for making his retdrn, the justice on demand of the plaintiff issued execution on the judgment, and delivered the same to an officer for collection.
    The defendant on learning of this, at once called with his attorney upon the justice and finding he had made no return on the appeal, tendered him the dollar for his fee and demanded that he should recall the execution and make out his return to the Circuit Court, which the justice declined to do/ The de fendant thereupon, on affidavit of himself and his attorney set. ting forth the above facts, made application to the Circuit Court for an order on the justice to make return on the appeal. The Court at first made an order requiring the justice to make return or show cause, and the justice showing cause in answer thereto, set up in his justification for not making return on the appeal that the appellant had not within five days after the rendition of the judgment paid him the fee of one dollar for making his return, The facts as set forth by the defendant were substantially admitted, the justice only insisting that no particular time was specified or agreed upon at the time within which the dollar was to be paid, and claiming..that the five days having elapsed, after the judgment, without payment of said fee, that therefore the defendant had failed to perfect his appeal. The defendant on this showing now applied for a peremptory order on the justice to make return.

      J. L. Hawes, Attorney for Appellant.

      IT. C. Stoughton and S. Stafford, for Appellee.
   B;j the Court,

Upson, J.

It is admitted that the defendant and appellant in this cause did within five days after the rendition of the judgment before the justice, make and file with him the proper affidavit and bond with surities as required by law' and did also at the same time pay to him the plaintiff’s costs as taxed in the judgment.

We think this so far perfected the appeal as to transfer the cause to the Circuit Court and out of the jurisdidtion of the justice. True the statute, § 3840, Comp. Latos, requires the party appealing, to pay to the justice, within five days, the sum of one dollar for making and filing his return, as well as the costs of the opposite party, included in the judgment. By § 3856 C. L., it is further provided that no appeal shall be dismissed on the ground that the costs of the justice have not been paid, but that' in all cases the fact of a return having been made by a justice shall be conclusive evidence of such fees having been paid.

The jurisdiction which this Court obtains by the appeal depends on the statute and not on the will oí justice; his making a return could not confer it without the payment of his fee, if the jurisdiction did not first obtain without it. The return to the appeal is made after the appeal is perfected and that return cannot, in the first instance, be compelled without the prepayment of the fee to the justice for making his return, if he requires it, and if the appellant neglects' to pay the fee and procure the return, the opposite party may move to dismiss the appeal.

See also on this point § § 3859 and 3S60 C. L., and 5 Howard's Prac. Reports, p. 422.

The sí tute does not treat the payment of the justice’s fee for return as a jurisdictional fact, but as a matter personal to the justice, which he may waive if he sees fit, without affecting the validity of the appeal, and his return is good though the fee has not been paid. In this respect the law.in relation to taking appeals is different from that in relation'to obtaining a certiorari to remove a justice’s judgment to the Circuit Court.

In such case the statute, alter specifying what the party is to do who applies for the certiorari in regard to making affidait, getting writ allowed, executing bond with sureties, procuring and serving writ, bond, and copy of affidavit on justice within five days after writ is issued, and paying two doll rs to the justice for his fees for making a return to the certiorari, adds the following, viz : “ and no certiorari shall be of any effect until all the preceeding requisitions shall have been complied with."—

Under a statute somewhat similar to ours in relatin to ap peals — Fis. Rev. Statutes, 1858, chap. 120, sec’s 205, 212, pages 697., 698, the Supreme Court of Wisconsin held an appeal good though the fee of the justice and the State tax required by the statute had not been paid. See 14 Fis., Rep. p. 86.

In the case before us, it appears that the appeal has been duly made and the justice having once waived the payment of the lee within the five days, and having subsequently refused to receive the same, the motion for a rule to compel him to make return to said appeal must he granted.


author: Brown J.

text:
    Brimingstool and Bullock vs. The People.
    A person accused of crime must be tried by jury, be a nullity. Even bis consent to waive a jury would

      Van Buren Circuit,

      Aug. 1870.

      Certiorari to a Justice of a Peace and Sheriff.
    Briiningstool and Bullock were arrested on a charge of assault and battery, and brought before a Justice of the Peace. The respondents plead “ not guilty,” and not demanding a jury, the Justice proceeded to hear the case. The respondents were convicted, and sentenced to “ pay a fine of fifty dollars and costs, or in ease of failure to pay said fine and costs, to be imprisoned in the County jail ninety days each, and the fine not being paid, they were committed. The Sheriff’s return shows that he holds the petitioners by virtue of the Justice’s warrant of commitment; and the Justice’s return shows the iiicts above stated.

      Foster J1 held, for Respondents.

      J. II. Upton, for the People.
   By the Court,

Brown J.

Of the allegations of error, but one was urged at the argument, to wit: That the Justice heard and determined the charge preferred against the petitioners and rendered judgment against them without a jury. The question is, can a defendant in a criminal case waive a trial by jury.

The statute, C. L- § 3929,, pro vides that “if the plea of the accused be “ not gnilty,” and no jury be demanded by him, the said court shall proeeed to try such issue and to determine the same according to the evidence which may be produced against and in behalf of such accused.”

Paragraph 3931, C. L., as amended bv act 96, C. L.< 1861, provides that “ the accused may demand of such court that he be tried by a jury which shall consist of six personsand provides how such jury shall be drawn.

Art. 6, § 27 of the Constitution of Michigan, provides that “ the right of trial by jury shall remain, but shall be deemed to be waved in all civil cases,¡unless demanded by one of the parties in such manner as shall be prescribed by law,” while section 28 provides that in every criminal prosecution the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of twelve men in all courts not of record.”

It would seem that our Constitution not only adop's the common law number of jurors, except in cases tried before a court not of record, but it recognizes the fact that the tribunal "before winch a person is accused of crime is incomplete without a jury. This was the rule at common law, and the guarantee referred to,' of the Constitution, is that the Legislature shall not deprive {he accused of such a tribunal (2 Hale P. C., 161; 1 Chit. Crim. L.) 505; Bac. Ab., tit. Juries, A ; 2 Bennett & Heard's L. C. 327. (

Indeed, the language of the Constitution that the right of trial by jury in civil cases shall be deemed to be waived, unless demanded by one of the parties, in such manner as shall be prescribed by law,” seems to indicate that without some such provision a jury could not be dispensed with, even in that class of cases.

It is undoubtedly true that as to those things which rest in contract, parties may stipulate and be bound by such stipulation. They may submit their differences to the arbitrament of one man or of a dozen; but it by no means follows that they have the power to change the constitution of a legal tribunal or the mode of its proceedings. A person may, doubtless, waive many of his rights, but such waiver is binding only upon the ground that it is a contract. This being so, it follows that the waiver can only be effectual as such in those cases where an express contract or agreement as to the same thing would be valid.

All criminal prosecutions are proceedings in invitum, and when the accused is arraigned and pleads “ not guilty,” he puts himself upon the country, and" challenges the people to establish the truth of their charge. He waives nothing, but leaves the government to proceed with him in the manner indicted by the organic law. The State will not accept of the sürrender of a man’s life or liberty at his option, but only takes it from him by “due process of law.” In the administration of criminal law, we proceed upon the theory that the accused'has incurred a forfeiture, has lost some right or privilege, by the commission of crime, and not by virtue of any contract. Hence, any legislation which assumes to authorize the voluntary surrender of the lives and liberties of the citizen, ignores the doctrine that the State has an interest in the preservation of all its subjects— ignores the very spirit of the constitutional provisions I have referred to, and overlooks the great truth so clearly stated by Blackstone, that “ the natural life being the immediate donation of the Creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow caeatures, merely upon their own authority.”

A man may plead guilty to a charge preferred against him, may admit the forfeiture and be sentenced and punished without further formality. But when issue is joined between him and the people, he must be tried by the tribunal, and in the manner prescribed by the constitution. To waive o'r-dispense with any part or portion of such tribunal, is to divest such tribunal of power to proceed. .If the accused can waive a jury, he can dispense with the judge, and can make a valid stipulation with the public prosecutor to serve out a term in the State Prison

Hill vs. People, 16 Mich., 351. See Jackson vs. the People, 8 Mich., 110; People vs. Smith, 9 Mich., 193; Campau vs. Detroit, 14 Mich., 276; Cancemi vs. People, 18 N. Y., 128; Work vs. State, 2 Ohio St., 296; People vs. Crocker, Michigan, Nisi Pruis, 31. The Justice erred in trying the petioners without a jury, and his judgment must be treated as a nulity, and the petitioners discharged from further custody.


author: Pratt, J.

text:
    The People vs. Charles Hungerford.
    The Prosecuting Attorney of a county Is the only person who can sign a notice of trial as- “ Attorney for, the People.”

      Hillsdale Circuit,

      Sept, 1870.
    This was an action brought under chapter fifty-second of the Compiled Laws, in reference to intoxicating drinks.

      The case was tried before a justice of tho peace, by an attorney (not the Prosecuting Attorney) employed by the prosecutrix Mary Taylor. Judgment was rendered for defendant, and an appeal was taken to this Court, by the People.
    At the September term of the Court the attorney who tried the case before, served notice of trial upon attorneys for defendant and signed it as “ Attorney for the People.”
    Upon the informal call of the calendar, attorneys for defendant moved to strike the case from the calendar, because it was not properly noticed for trial.
   By the Court,

Pratt, J.

The motion must be granted. Section 1670 of the Compiled Laics having made it the duty of the Prosecuting Attorney “ to prosecute all suits arising under this act, brought into the Circuit Court whether by appeal or otherwise,” he is the only person who can sign such a notice of trial as “ Attorney for the People.” But I am of the opinion that a notice signed by the prosecutor or prosecutrix, (in case the proceeding is not commenced or conducted by the Prosecuting Attorney) or signed by another attorney as the attorney of such prosecutor or prosecutrix, would be good.


author: Pratt, J

text:
    Addison P. Cook vs. Sylvanus Hitt.
    Property that has been attached and which is exempt from execution cannot he released from such attachment, upon motion made in this Court.

      Hillsdale Circuit,

      Sept. 1870.
    Plaintiff commenced attachment suit against defendant and attached certain property which defendant claimed was owned and occupied by him as a homestead.
    Defendant moved to have the property released, on the ground that the projieity was a homestaed, and filed affidavits to that eflect, upon which the motion was based.

      Dickerson Keiting for Plaintiff, cited,

      Drake on Attachments, 417; 7 Michigan 507; 3 Wisconsin 756; 14 Wisconsin 576; 6 Michigan 468.

      J. C. Willis, for Defendant, cited.

      Drake on Attachment 416; 11 Michigan 858; 6 Michigan 468.
   By the Court,

Pratt, J

The mo'tion is overruled. The question is too important to be tried by affidavits. The defendant must seek relief by filing a bill to remove the cloud upon his title, or it may come up, if sn attempt is ever made to get possession, by an action of ejectment.