text:
    Jane Daniels, Administratrix, vs. Elvira Eisenlord and others.
    A mortgage conditioned for tho support of the mortgagee by the mortgagor, during h.6r life time, cannot be foreclosed for the benefit of persons who had boarded the mortgagee at the request of the mortgagor. Such a mortgage is for the benefit of the mortgagee, and not for the benefit of those who may, at the request of the mortgagor, furnish her with support,
    Where a bill is dismissed at the hearing, the costs are in the discretion of the Court, except where special provision is made by statute. And this is so, notwithstanding the corbplainant was administratrix, and filed the bill in her representative capacity.

      Heard July 16th and 11th.

      Decided October 14th.

      Appeal from Wayne Circuit in Chancery.
    Complainant, as administratrix of Mary Eisenlord, filed her bill to foreclose a mortgage given to said Mary by her son, Spencer Eisenlord, June 28, 1845, conditioned that the said Spencer Eisenlord should support and maintain said Mary, from the date of said mortgage, during her natural life, and furnish her with all proper and necessary board, meat, food, drinks and lodgings, together with all proper nursing, medicine, and medical attendance in sickness, and to provide and furnish her with all necessary and decent clothing and wearing apparel, and to pay all necessary funeral charges. The defendants are the widow and heii-s at law of the mortgagor, whose estate is alleged to have been fully administered upon.
    The bill alleged that neither the mortgagor, in his life time, nor the defendants, after his death, performed the condition of the mortgage; that the mortgagee was deceased, and complainant duly ap2>ointed her administratrix5 and that in the course of administration on the estate of said mortgagee, claims were duly allowed against such estate to the amount of $922 for the board of the said Mary, and for care, nursing, and medical attention while sick; and also $21 50 for tomb stones for said Mary, for the satisfaction of which sums a sale of the mortgaged premises was prayed.
    Answers were filed to this bill, which were replied to, and testimony taken. The proofs showed the allowance of claims against the estate of said Mary Eisenlord for her care and board, after the date of the mortgage, as follows: To John S, Daniels, $182; to Lawson A. Van Akin, $80; and to William R. Parmalee, $60. Also, to John S. Daniels, $21 50, fbr tomb stones. Other evidence showed that this board and care was fitrnished by the claimants at the request of the mortgagor. While the mortgagor’s estate was ’in process of settlement, Daniels presented against it his claim for the board and care of said Mary, and it was adjudicated upon.

      Other evidence is stated in the opinion.
    The Court below dismissed the bill, and awarded costs against complainant personally.

      John W. Longyear, for complainant,
    insisted that the allowances made by the Probate Court could not be attacked collaterally, but were conclusive as to the facts necessarily involved in making them; which were
    1. That the mortgagee was taken care of, boarded, and furnished with medicine and attendance during the period specified, by persons other than the mortgagor, and that at the time of her death she was legally liable to such persons therefor.
    - 2. That her burial expenses, including tomb stones, were also paid by others.
    3. That the value of such care, board, medicine and attendance, and the amount of such burial expenses, were as found and reported by the commissioners.
    4. That the persons in whose favor such allowances were made, were justly and legally entitled to the same.— 26 Ala. 639, 650; 1 Ind. 451.
    These facts establish a breach of the condition of the mortgage to the extent of the claims allowed.
    He also argued that the Court erred in awarding costs against complainant, unless she was adjudged to have brought the bill wantonly. — 2 Burr. Pr. 88; 4 Cow. 87; 18 Wend. 636. And the ground for awarding costs against her should have appeared in the decree.

      W. Gray, for defendants.
   Manning J.:

The mortgagor agreed -to support, maintain and provide for his mother, the mortgagee, during the term of her natural life, and was to furnish her with proper and necessary board, wearing apparel, meat, food, and medical attendance, and pay all funeral charges at her death. There is no evidence the mortgagor in his life time, or his heirs after his death, refused to do all that the condition of the mortgage called for; or of any demand made on them, or either of them, by the mortgagee, or any one on her behalf, for her support. The evidence shows she lived with the mortgagor about eleven weeks, and in the families of Daniels, Yan Aiken, and Parmelee, the rest of the time — mostly in that of Daniels — at the request of the mortgagor. Whatever claim they severally had for boarding and taking care of her, was against the mortgagor, and not against her personally. The mortgage was for her benefit, and not for the benefit of those who might provide her with board and lodging at the request, and on the procurement, of the mortgagor. Daniels’ claim was presented to the commissioners on the estate of the mortgagor, for allowance. We are all clearly of the opinion no breach of the condition of the mortgage is proven, and that the Circuit Court did right in dismissing the bill, with costs.

Where the bill is not dismissed by complainant, or for want of prosecution, and no special provision is made by statute for costs, they are to be paid by such party as the Court shall direct.— Comp. L. §§ 5595, 5596. We think the Court fully warranted by the circumstances of the case in giving costs against the administratrix.

The decree is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Christiancy J.:

license: Public Domain

text:
    Newell Barnard and others vs. George M. Hinkley.
    An action on tbo case for obstructing a navigable stream, though local nt the common law, is transitory under the statute.

      Heard July 19th.

      Decided October 14th.

    Error to Saginaw Circuit. The case is sufficiently stated in the opinion.

      Moore <& Gaylord, for plaintiff in error:
    The action is not local under our statute.— Comp. L. §4344. The right of the public to pass over navigable water in this State, is not “real estate.” — 2 Bouv. L. Dic. 422, 423; 2 Hill, on Torts, 104; 1 Hill, on Real Prop. (3 d ed.) 3.

      Sutherland & Miller, for defendant in error:
    The action is local, as well by statute as by the common law, for it is for “injuries to real estate.” — Comp L. § 4344 ; 6 Hill, 82; 23 Wend. 484; 1 Burr. Pr. 75, 122: 1 Chit. Pl. 199; Any. on Waterc. §§ 418, 419, 554, 570; 5 Mass. 129; 7 Mass. 385; 3 Bouv. Inst. 130; 2 Greenl. Ev. § 470. The words real estate include lands, tenements and real estate, and all rights thereto, and interests therein. — 1 Comp. L. § 1, sub. 9; 2 Hill, on Real Est. 1-7. The right the violation of which is the basis of the action, is an incorporeal hereditament — an easement. Interests falling within these terms can only be created and transferred by the ceremony necessary to transfer lands; and they are excluded from the jurisdiction of courts that have no authority to entertain questions of title to land. — 20 Wend. 96; 19 Wend. 373; Ang. on Waterc. § 168 ; 9 Metc. 462.
   Christiancy J.:

This was an action on the case, brought in the Circuit Court for the1 county of Saginaw, for obstructing the navigation of Millington creek, by a dam in the county of Tuscola. The declaration was demurred to on the single ground that the action could not properly be brought in the county of Saginaw; and this is the only question in the case. There can be no doubt that at common law, as well as by most statutes, both in England and in this country, this is a local action within the principle which usually distinguishes local from transitory actions. The questions to be tried are peculiarly questions of a local nature, and would be more likely to be conveniently tried in the county where the nuisance complained of exists, as the witnesses would be more likely to come from that county, and a view might become necessary. — 3 Bouv. Inst. 130; 1 Bac. Abr. 56 to 58; 1 Com. Dig. 250, 251, 252, and note; Oliphant v. Smith, 3 Penn. 180.

But the question of venue is one within the power of the Legislature, and our statute upon this point is peculiar. By the first subdivision of §4344 Compiled Laws, it is provided that “ actions for the recovery .of any real estate, or for the recovery of the possession of real estate, actions for trespass on land, and actions of trespass on the case for injuries to real estate, shall be .tried in the county where the subject of the action shall be situated.’’ By the second subdivision of the same article, it is in substance provided that all other actions “shall be tried in the county where one of the parties shall reside at the time of commencing such action, unless the Court shall deem it necessary, for the convenience of parties and their witnesses, or for the purposes of a fair and impartial trial, to order such issue to be tried in some other county,’ &c.

Under this statute, this cannot be be held to be a local action, unless it be an “action- on the case for an injury to real estate.” After a careful examination, we are satisfied it does not fall within the meaning of these terms of the statute; but that the “real estate” referred to must be the real estate of the plaintiff, an interest or property distinct from that of the public at large, and which may be acquired by purchase, grant or prescription,' and conveyed or disposed of as property.

Nor do we think the right of navigation in a public river can with propriety be treated as “real estate” vested in the public or the State for the benefit of every individual who may have occasion to use it. It is a public right, but we see no reason to call it real estate. It is sometimes called a “public easement,” but we do not think it comes within the meaning of the term easement, as used to designate an incorporeal hereditament, as a right of way belonging to one person or estate over the lands of another.

The demurrer was not well taken; the judgment must be reversed, with costs, but the defendant should have leave to plead to the action.

The other Justices concurred.


author: Oampbebb J.: Martin Ch. J.:

text:
    Zachariah Chandler v. John H. Allison.
    Defendant was sned in trespass for destroying a store occupied by plaintiff, whereby the latter was deprived of its use, and prevented from carrying on his business. It appeared that plaintiff was tenant of the store under defendant, but the declaration was silent on the subject of a tenancy, and it was held not competent for plaintiff to prove and recover as damages the amount and value of repairs made by him upon the store prior to the trespass.
    But held, that evidence of repairs made to counteract the effects of an attempt upon the property by defendant, before its final demolition, was competent— the declaration being broad enough to cover the entire transactions.

      Held also, that it was competent for plaintiff to give evidence that portions of the store were underlet by him, and at what rates; as such evidence went to show whether the portion which he retained and occupied was held by him at an advantageous rate, and whether, therefore, his rights were worth anything.

      Held further, that it was competent for plaintiff to give evidence that after the trespass ho procured auother store for his business, which was the best he could obtain for the purpose, but less advantageous tban the one destroyed. Such evidence tends to diminish, and not to increase the damages, by showing that plaintiff has obviated the evil effects of the trespass so far as was in. his power.

      The declaration in trespass alleged that plaintiff’s store was rendered uninhabitable, and that the plaintiff was, up to the commencement of the suit, hindered and prevented from carrying on his business as a merchant, engaged in selling watches, jewelry and silver ware. Held) that under this declaration, plaintiff might give evidence of a partial deprivation of business, which would have been total had no other building been attainable.
    Offers, by way of compromise, not accepted, whether liberal or the reverse, cannot affect the legal rights of parties.
    The object of cross examination is to elicit the whole truth concerning transactions which may be supposed to have been only partially explained, and where the whole truth would present them in a different light.
    Whenever an entire transaction is in issue, evidence which conceals any part of it is defective,* and any question which fills up the omissions of the witness whether designed or accidental, is legitimate and proper on cross examination. A party cannot glean out certain parts which alone would make out a false account, and save his own witness from the sifting process without which those omissions can not he deteoted.
    29or can one be compelled to 'make his adversary’s witness his own, to explain or fill up a transaction he has partially explained already.

      Heard July 15th.

      Decided October 14th.

    Error to "Wayne Circuit.
    Allison brought suit against Chandler, and declared in trespass as follows:
    “For that the said defendant, on- the fourth day of August, 1860, and on divers other days and times between that day and the time of commencing this suit, with force and arms broke into and entered a certain store of the plaintiff, situated and being in the city of Detroit and county of Wayne aforesaid, and known as number one hundred and seventy-six, on the south side of Jefferson Avenue, in said city of Detroit, and then and there forced off, broke to pieces, and utterly destroyed the roof of said store, and also during the time aforesaid forced .away and broke to pieces? a large portion of the brick wall of said store, and thereby rendered the same untenantable and uninhabitable. By means of which said several premises, he, the said plaintiff, during all the time aforesaid, was not only greatly disturbed and annoyed in the peaceable possession of the said store of the said plaintiff, but also he, the said plaintiff, was during all that time hindered and prevented from carrying on his lawful and necessary business as a merchant in said city, engaged in selling watches, jewelry and silver ware, to wit, at Wayne county aforesaid.
    “And, also, for that the said defendant, on the 22d day of August, 1860, with force and arms, broke and entered into a certain other store of the said plaintiff, situated and being on the south side of Jefferson Avenue, in the city of Detroit and county of Wayne aforesaid, the same being known as No. 176, on said Jefferson Avenue, Detroit, and then and there ejected and expelled, put out and removed the said plaintiff from the possession, use, occupation and enjoyment of the said store, and kept and continued him so ejected, expelled, put out and amoved for a long space of time, to wit, from thence .hitherto, whereby the said plaintiff, for and during all that time, lost and was deprived of the use and benefit of his said store, to wit, at Wayne county aforesaid. And other wrongs to the said plaintiff then and there did, to the great damage of the said plaintiff, and against the peace and dignity of the State of Michigan.’’
    The defendant pleaded the general issue, with notice that he should prove on the trial, “that for many years, to wit, ten years previous to the commencement of this suit, the defendant had and ever since has been the owner in fee simple of the premises described in the plaintiff’s declaration: that previous and up to the 1st of August, 1860, said plaintiff had been in possession of said premises under a lease from and as tenant of said defendant: that on or before that day said plaintiff’s right to the possession of said premises, as such tenant, had come to an end by the expiration of said lease; that said plaintiff, upon demand of said defendant, had wrongfully refused to deliver up possession of said premises to said defendant; that said defendant, having duly notified said plaintiff that he had made a contract for the rebuilding- of the store mentioned in said declaration, and was about to demolish said old store and rebuild a new one in its place, and requiring Mm to give up possession of said premises, rightfully, but Avithout force or violence, entered Aipon the roof of said store,, and removed a part of the side-wall thereof, but without injury to the person or property of said plaintiff — which are the same trespasses complained of in said declaration; and any damage which said plaintiff thereby sustained Avas in his own wrong, and through his own fault and wrongful refusal and neglect to leave said premises.’’
    The cause coming on for trial, the plaintiff Avas sworn as a witness, and testified:
    That in August, 1860, he was occupying the store number 1V6 Jefferson Avenue, in the city of Detroit, which was owned by the defendant; that he had commenced occupying under the defendant on the 1st day of May, 1854, by virtue of a verbal lease from defendant for one year, at a rent of $900 per year, payable at the end of each quarter; that defendant told him that he might occupy as long as he Avanted it and paid the rent; that he occupied until 1860 under this arrangement, and that there was no new eontract after May 1st, 1854.
    Witness further gave testimony tending to show that he had a conversation with defendant in the fall of 1859, in which the latter spoke about the rent of the store, and said he talked of raising it after the 1st of May, 1860; that defendant then said that he would let plaintiff know by the 1st of February, 1860. Allan Shelden, the defendant’s agent, called on the plaintiff and presented a bill for quarter’s rent then due, and informed plaintiff that his rent, after May 1st, 1860, would be $1,000 per year, and plaintiff then asked Shelden hoAV many years he could have it at that rate, and he replied that he did not know.
    The plaintiff’s counsel then asked the Avitness, if, after this notice from Shelden, he made any repairs on said building; if so, to Avhat amount? Which question was objected to, but the objection overruled, and the witness testified that he expended about one hundred dollars ir repairs; that he continued occupying said store till about the twenty-fourth day of August, 1860, and that he paid rent for the quarter ending August 1st, 1860, at the rate of $900 per annum; the bill presented by defendant’s agent being for $225.
    The plaintiff’s counsel then showed to the witness a written notice from defendant to witness, dated. August 4th, 1860, by which the defendant notified the plaintiff that, on Tuesday next following said date, the defendant would commence the demolition of the store occupied by the plaintiff, and witness testified that he received said notice on said August 4th, 1860.
    Witness then testified that on the 15th day of August, 1860, he found a gang of men on the store, tearing off the roof, and he caused them to be arrested; that the plaintiff occupied the first and third stories of the store, and that the second story was underlet by him to one Gates, and the basement to one Heffron.
    The witness was then asked by plaintiff’s counsel what rent was paid by them, said Gates and Heffron. Which question was objected to as immaterial and incompetent under the plaintiff’s declaration. The Court overruled the objection, and the witness testified that Gates paid $150 per year to him, and Heffron $100 per year.
    The witness was then asked whether he was put to any expense, and if so, how much, in repairing said roof after the said first attenqpt to demolish said store. Which question was also objected to, but allowed, and the witness testified that on the 21st day of August, 1860, a gang of eight men entered upon the roof of said store, and tore off the roof, jmshed off the -gable end, and did other damage to said building; and that in consequence said store became untenantable; that he could not longer occupy it, and that he left said store on or about August 23d or 24th, 1860.

      The counsel for plaintiff then asked the witness if he hired another store; to which question the counsel for the defendant then and there objected, as being wholly immaterial under the issue, and under the plaintiff’s declaration in this cause. But the Court overruled the objection, and the witness testified that he then hired another store, known as 198 Jefferson Avenue, which was the best store he could then obtain.
    The counsel for the plaintiff then asked the witness how the store, so hired by him, compared as a place of business with the one from which he removed. And under objection, he testified that the new store was not as good a place for business as the old one; that it was not so much of a thoroughfare, being so much farther from Woodward Avenue; that it was not so good for his business, which was that of a jeweler, gold pen making and watch repairing, of which the last item formed an important part.
    The counsel for defendant then cross-examined the said witness, and on such cross-examination he testified, that he first heard of defendant’s intention to rebuild in the street, but could not say at what time; that said defendant said nothing whatever to him in the fall of 1859 about his rebuilding said store.
    The witness was then asked by the defendant’s counsel whether he had a conversation with the defendant in the spring of 1860, about his rebuilding said store, and if so, did defendant inform him that he might rebuild said store?
    To which question the plaintiff’s counsel objected, as not being proper cross-examination; and the Court sustained the objection.
    The witness further testified on said cross-examination, that prior to February 1st, 1860, he had a conversation with Shelden, defendant’s agent, in regard to defendant’s rebuilding said store; that in the early part of winter, and as he thinks about the middle of December, he went to see Mr. Shelden to obtain information as to whether defendant intended rebuilding, as he had heard such a report; that Shelden told him he knew nothing of it; that defendant was then at Washington. But witness does not know whether Shelden told him that, if he wished to know, he had better write to Mr. Chandler; that Shelden may have said so; that at the conversation with Shelden, February 1st, 1860, nothing whatever was said by either party about defendant’s rebuilding, and nothing was then said by Shelden of defendant’s reserving any right to rebuild.
    The witness was then shown a letter, dated March 7th, 1860, written by him to defendant, and a letter from defendant in answer thereto; witness identified the letters, which were read in evidence, and copies of which are given below.
    The counsel for the defendant then asked the witness, whether he did not have a conversation with the defendant between the 1st day of February, 1860, and the 1st day of May, 1860, about rebuilding said store, in which said defendant said that he should rebuild the store if Mr. Joy built. To which question the plaintiff’s counsel objected, on the ground that it was not proper on cross examination. The Court sustained the objection, and excluded the testimony.
    The counsel for the defendant then asked the witness, whether the defendant ■ did not, about ten days previous to the time of his leaving said store, offer him another store in the Phoenix Block, free of rent, which was the fifth store from the corner of Woodward Avenue, if witness would leave said store without any difficulty. Which question, on objection, was ruled inadmissible.
    The witness was further asked by the defendant, whether he did not have a conversation with defendant about the 1st of August, 1860, in which the defendant said, that if the plaintiff wished to remain in said store, he would shore up the wall so as 'tto^ make the plaintiff as little trouble as possible while he was building the adjoining store, and that the said plaintiff in said conversation refused to permit defendant to do so. Which question was also ruled inadmissible on cross-examination.
    Further evidence having been given, the cause was submitted to the jury, who returned a verdict for plaintiff.
    The following are copies of the letters above referred to: “Hon Z. Chandler,
    Dear Sir: — Mr. Shelden has informed me that my future rent will be $1,000; if such is the fact, can I have a lease for five years?
    I wish to make some improvements, which will cost me quite a sum: consequently I wish to know what I can expect. Please let me know at your earliest convenience.
    Yours respectfully,
    Detroit, March '/th, 1860. J. H. Allison.”
    “Washington, March 12th, 1860.
    J. H. Allison, Esq.
    Dear Sir: — You can have the store for five years, at the rent mentioned, unless I should in the mean time conclude to rebuild the store. I should reserve that right, but in that case you would have the preference for the new store, being an occupant of the old.
    Yours truly, Z. Chandler.”
    Judgment having been rendered on the-verdict, defendant brought error.

      Jerome & Swift and A. JB. Maynard, for plaintiff in error:
    The rules which determine the question of damages in these cases seem to be as follows:
    Those damages which necessarily result from the injury complained of, are called general damages; and are implied in law, and are covered by, and recoverable under, a general allegation of damage in the declaration.
    Those damages ivhich are the natural consequences of the act complained of, but not the necessary result of it, are termed special damages, are not implied in law, and must be particularly specified in the declaration, or the plaintiff will not be permitted to give evidence of them at the trial; —2 Greenl. Ev. § 254; 1 Chit. Pl. 395; 13 Barb. 183 ; 4 Q. B. 493 ; 14 Wend. 159; Peake's Cases 62; 2 Barb. 525 ; 11 Ind. 522 ; 1 Dutch. 121; 6 Barb. 424;. 12 Wend. 64; 29 Ill. 184; 25 Ala. 716; 1 Comst. 516; 17 Pick. 79; 4 Seld. 115; 14 Wend. 41 ; 17 Wend. 73.
    Now it would seem to be clear, from the above authorities, that all.that plaintiff could recover under the first count of his declaration would be the actual injury to his. store, and the loss sustained by the interruption of his business. That he should remove from the building, or that he should repair it, would not seem to be the necessary result of the trespass; although either of them might be the natural consequences of it. Either would be natural, the last most so : but as neither would be the necessary result of the alleged trespass, if the plaintiff sought to recover for either, he should have specially alleged it in his declaration. We claim, therefore, that under this count of his declaration, he could neither recover for repairs nor for his removal and the consequences of it. At any rate it would seem to be clear, that if making repairs was the necessary consequence of the trespass complained of, removing from the store was not, and vice versa.

    The second count of the declaration is for ejecting the plaintiff from his store, and keeping him out of it, and the consequent loss of the use of the store. Under this count the plaintiff could only recover for the ouster, but not for the continuance of the wrongful act in keeping out the plaintiff after the commencement of the suit; which would itself be a wrongful act, but neither the necessary nor natural result of the original ouster: — 3 Bl. Com, 210; Sedg. on Dam. 134; 2 Johns. Cas. 27; 3 Denio, 283.
    It would certainly not be the necessary, and hardly the natural consequence that he would be kept out of his store for the remainder of his term. Would it not be as natural a consequence that he would regain possession by re-entry, and ouster of the wrongdoer, or by an action of forcible entry and detainer ?
    It would seem, therefore, that he could not under this count recover for the damages sustained by removing into another store, and the consequences thereof. The making repairs could neither be the necessary nor natural consequence of the ouster.
    The relation of landlord and tenant could add nothing to the amount of damage sustained. If the plaintiff had any claim against the defendant, growing out of a breach of the duties of that relation, his remedy was in another form of action. Whether the plaintiff was his landlord, or a mere stranger, could at any rate make no difference in ascertaining the amount of special or consequential damage occasioned by the trespass complained of.
    It is only the party in possession that can maintain trespass for injury to property.
    The plaintiff therefore was not entitled to recover for injury to the premises occupied by Heffron and Gates. He might in an action on the case have recovered for damage he had sustained by loss of rent. But it certainly could not be considered the natural or necessary consequence of trespass to property in his possession, that he should lose the rent received from tenants in the possession of premises not occupied by him, and therefore in order to recover for it he should have specially alleged it.
    And as the evidence to show the amount of rent paid by plaintiff’s tenants could have had no effect except to show how much damage he had sustained in losing them, it was clearly inadmissible.
    And it was ‘also inadmissible as not furnishing a true criterion by which to determine the amount of damage which the plaintiff had suffered by loss of tenants, and as therefore tending to mislead the jury.

      The evidence with respect to the change of location, and how the store hired compared with the other as a place of business, was clearly inadmissible for like reasons.
    The evidence sought to be obtained on cross-examination was clearly admissible, as tending to qualify materially the case made by the plaintiff’s testimony, on his examination in chief, and intimately connected with the matters stated in his direct examination.

      E. C. Hinsdale and C. I. Walker, for defendant in error:
    1. The damages, which the evidence objected to tended to show, are within the most general rule applicable to general averments in a large class of cases, viz: that such damages may be shown as are the necessary and proximate .consequence of the act complained of: — Sedg. on Earn. (3d Ed.,) § 65 to 19, and cases cited.

    To illustrate .this proposition, let us consider the items of damages to which the evidence points;
    It was proper to show the rent paid by the plaintiff’s sub-tenants, as that rent certainly formed a part of the value of the use of the store of which the jDlaintiff had been deprived. Suppose that this rent had exceeded the rental payable by the plaintiff below, surely, if there were no other damages, the plaintiff would be entitled to that excess; and it can not be erroneous to admit evidence that might establish just such a state of facts.
    The plaintiff made repairs, after making a bargain with the defendant’s agent for another year, and these were lost by the defendant’s trespass. Suppose that the plaintiff, instead of repairing one building, had put up the whole of one, as an out-building, for his use during'his term, and the trespass had consisted in destroying such out-building entirely erected by the plaintiff, can there be a doubt that there could be a recovery therefor under averments of general damage? The law would “imply” such damages; yet there can be no 'distinction in principle between the two cases.

      The same reasoning applies to repairs made to put the building in condition for use after the defendant’s first attempt at destruction.
    It is damages that the law implies which can be shown under general averments: special averments are required to prevent surprise on the defendant: — 1 Chit. Pl. 396 (12 Am. Ed.); 2 Greenl. Ev., § 254.
    We proceed to the consideration of the evidence as to plaintiff’s having another store, and as to how it compared, as a place of business, with the one from which he was driven by defendant.
    In order that the jury might judge of the nature and extent of the injury sustained by the plaintiff, the latter had a right to place the jury, as nearly as possible, in a situation to know all the facts and circumstances attending this wrong done to him, and the condition in which he was before the injury, and the effect" of that injury, as fully as if they had been actually cognizant of the facts as they transpired.
    For the purpose of showing this effect of the defend ant’s trespass, the plaintiff offered evidence of his hiring another store, the best which he .could obtain, and of the fact that it was not as good as the one from which he had been so summarily driven.
    This evidence was clearly proper: — 5 Duer, 559 ; 12 Conn. 575; 11 Price, 19; 4 Barb. 261.
    2. But if the testimony, to which the objection was made, was inadmissible under general averments in the declaration in ordinary actions upon contracts, or torts committed without willfulness or moral wrong, still, in cases of illegal or mischievous conduct, of reckless and deliberate wrong, the' disposition of courts is to make the party in the wrong liable for injurious consequences flowing from the illegal act, although they be remote; and on this ground the testimony was all admissible : — Sedg. on Dam. § 88; 7 Ired. 365; 5 Day, 140; 2 McCord, 277; 5 Duer, 64; 3 Wils. 118; 1 Blackf. 56 ; 10 Md. 76.

      In trespass for injury to a building occupied by the plaintiff as a store, resulting in an interruption of his business, he may recover in addition to the damage done the building, such further sum p.s will compensate him for the loss of its enjoyment.
    For this purpose it is competent to prove the nature and extent of his business, and the necessity of its use to him: 5 Ohio St. Rep. 594. See also, 4 Moore, 12; 4 E. D. Smith, 347; 3 W. & S. 540 ; 3 H. & McH. 510.
    There is another rule of law well settled by the authorities, which confirms the view above taken, as to the admissibility of all the evidence objected to.
    It is, that in cases of willful tort accompanied by aggravating circumstances, the jury may give exemplary damages, and this, where there are no averments of special damages: 5 Taunt. 442; 34 Penn. 53; 13 How. 371 ; 3 Wis. 424; 16 B. Mon. 577 ; 6 Pet. 272; 10 Conn. 384; 4 Bibb, 502 ; 19 Ill. 631; 2 Stark. 317; Sedg. on Dam. §§ 38 and 39, and Appendix to 3d Ed.

    If in such cases damages beyond the mere pecuniary loss can be recovered, a fortiori should the , plaintiff be permitted to show all loss and damage, which were the natural result of the defendant’s wrongful acts, though not specially set forth in the plaintiff’s declaration.
    ITnder the averment of 'alia enormia,’ the evidence was admissible, as under this allegation “damages and matters which naturally arise from the act complained of may be given in evidence in aggravation of damages, though not stated specially: — Chit, on Pl. 397; 2 Saund. on Pl. and Ev. 1121.
    3. Four questions were proposed upon cross-examination relating to matters not touched upon in the remotest degree upon the direct examination.
    This evidence was clearly inadmissible under the rule established by this Court: — People v. Horton, 4 Mich. 69; Campan v. Dewey, 9 Mich. 381.

      The testimony as to Chandler’s offer of another store in Bhcenix Block, and of his offer to shore up the walls of the store occupied by the plaintiff, to which the eighth and ninth assignments of error point, was inadmissible, on the further ground of irrelevancy.
    It certainly could not be admissible in .mitigation of damages, siirce the refusal of the plaintiff to part with his right to the premises conld not palliate the wrong of driving him away with strong hand.
   Oampbebb J.:

Plaintiff in error was sued in trespass by defendant in error, for destroying- a store occupied by the latter, whereby the latter was disturbed in his possession, prevented from carrying on his business as a silver smith, ejected from the premises, and deprived of the use and benefit of the store.

It appears from the evidence that plaintiff in error was Allison’s landlord, and was desirous of rebuilding, and had, previous to the trespass, requested him to vacate the premises. The declaration does not allude to any such relation, but it was set up in the plea with matters relied on by way of excuse and defense. The questions before us all arise upon the reception or rejection of testimony.

Allison was permitted, under exception, to show the amount and value of certain repairs made by him before the trespass; and this is claimed to have been erroneously allowed; The declaration being entirely silent concerning any tenancy, makes out no other case than would have been set up against a stranger. Such an injury as is complained of does not spring from any infringement of rights arising, out of contract, and proof of any such damages is not therefore pertinent to the issue as framed. The injury declared upon is to an existing possession, and how or at what expense the property was put in its then condition, in no way affects the condition itself. The evidence was we think improperly received.

Exception is also taken to the admission of testimony-showing that certain portions of the building were under-let to Gates and ileffron for rents which were named. It appeared that Allison rented the whole building, including their apartments, for a certain yearly rate, and only occupied a portion for his own business. A material inquiry in regard to his own injury from the ouster would be whether the premises occupied by him were held at an advantageous rate — and whether therefore his rights were worth anything. The evidence admitted went to show precisely what his own portion of the building cost him. This is an essential inquiry, and necessary to determine the value of the leasehold. This testimony was we think properly received.

Objection was also made to the reception of evidence showing that, after the first attempt on the property, and before its final demolition, repairs were made to restore the first injury. The declaration is broad enough to cover the entire transactions, and those repairs were the necessary means of counteracting the first trespass. The cost of restoring the property to its former condition, is, in a case like the present, where the party had not been actually ousted, and they Avere made to render it habitable, a very obvious measure of a principal branch of damages. We see no ground on which this evidence should have been excluded.

The Court below allowed Allison to show that he had hired another store, which was the best he could obtain, and also that it was inferior as a business stand for his business to the store out of which he was driven by the trespass; and both of these portions of evidence it is claimed should have been excluded, partly as not admissible at all, and partly as not covered by the declaration.

It has always been considered incumbent upon any person subjected to injury to use such means as are reasonably in his power to make the evil consequences as light as possible. Under what circumstances, if any, such efforts are not required it is unnecessary to inquire. Where such efforts are made, and the injured party succeeds to any extent in reducing his actual damages, his claim for redress must be reduced accordingly. It can hardly be denied that had Allison found an equally eligible stand at an equal rent, he would have suffered less pecuniary injury than by having his business entirely broken up. Whether he would have been compelled or not to seek such a place, yet, having sought and found it, his damages would certainly have been reduced. And there seems no good reason why the actual obtaining of another store, as good as could be had, would not have a similar effect in showing the actual damage suffered. The evidence tends to lessen and not to increase the damages; and, while it would usually be introduced by way of defense, there is no reason why the plaintiff should be debarred from showing the true state of the case. How far such testimony could be made available on either side, without encountering the difficulties of speculative damages, must depend upon other facts. But it certainly serves an important purpose in explaining the true condition of affairs, and placing the jury where they can better comprehend it. And, in all those cases where practically the verdict must be to a certain extent a matter of opinion as to the amount of injury, the jury should have the' facts brought before them as clearly as possible.

The principal objection to allowing this evidence was based upon the form of the declaration. The damages arising from an interruption of business are unquestionably the natural result of such an injury as is complained of, but it is claimed they are not a necessary result, and should therefore be alleged. It is undoubtedly true that such damages as are not the necessary results of a trespass must be alleged. But in the case before us they are .specially alleged, with as much particularity as can be found in the precedents. The first count avers that the store was rendered uninhabitable, and that the plaintiff below was, np to the commencement of suit, hindered and prevented from earying on his business as' a merchant engaged in selling watches, jewelry and silverware. The second count also charges a continued removal and ouster, whereby he was during 'the whole period deprived of the use and benefit of his store. Both of these counts point out the deprivation of the use and benefit of the'store as the special grievance and ground of damage, and the first count is specific as to the kind of business which was interrupted. Under the first count there can he’ no sound objection to the testimony. It goes directly to the hindrance to his business, and shows a partial interruption, which would have been total had no other building been attainable.. The declaration is broad enough to cover a total interruption, and certainly will permit any qualification of such a total loss. There was no error in receiving this proof.

The remaining errors assigned refer to the rejection by the Court of certain questions proposed by Chandler on the cross-examination of Allison, who was a witness on his own behalf. He was asked whether prior to the trespass Chandler did not offer to give him another store free of rent, if he would remove without making any difficulty. This question was ruled out, and, we think properly. It would not have been pertinent for any purpose. The question of right to the possession could not be affected by any offers of compromise, or offers to buy off Allison, if they were not accepted. Offers not accepted, whether liberal or the reverse, cannot change the legal rights of either party.

Allison w.as also asked on cross-examinatiort two questions, as to whether in the spring of 1860, and also whether between the twentieth of February and the first of May 1860, he did not have conversations with Chandler in which the latter said he might rebuild the store, and that he should rebuild it if Mr. Joy built upon his adjoining property. These questions were ruled out.

We think both of them were admissible. The principal point in controversy was whether Allison had an unqualified present interest as a tenant of Chandler. That he was a tenant was conceded, and the only point in issue on that subject was whether, under the terms of his holding, Chandler had a right to require him to leave, in order to rebuild upon the premises. The questions put to the witness were aimed at ascertaining the precise terms of the letting. They were designed to determine the real character of the transaction in issue. They did not relate to matters in avoidance of it, and, without the information they called for, it could not be presented in its true light. It is difficult to perceive any principle upon which such questions can be. held improper on cross-examination. The only object of this, process is to elicit the whole truth concerning transactions which may be supposed to have been only partially explained, and where the whole truth would present them in a different light. Whenever an entire transaction is in issue, evidence which conceals a part of it is defective, and does not comply with the primary obligation of the oath, which is designed to elicit the whole truth. If the witness were, as he always may be, requested to state what he knows about it, he would not do his duty by designedly stopping short of it. Any question which fills up his omissions, whether designed or accidental, is legitimate and proper on cross-examination. When the answers are given the nature and extent of the transaction becomes known from a comparison of the whole, and each fact material to a comprehension of the rest is equally important and pertinent. A party cannot glean out certain parts, which alone would make out a false account, and save his own witness from tlie sifting- process by which only those omissions can be detected. There could be no such thing as cross-examination if such a course were allowed. No one could expose a fraudulei witness for his dishonest concealments; and every one wb knew of such practices would be driven to the necessity of calling, in his own behalf, an adverse witness to shov his own concealments, whom, if perjured, he 'could no; impeach. The absurdity of such a process is too plain t need pointing out. No one can be compelled to mafc his adversary’s witness his own to explain or fill up ; transaction he has partially explained already. The Oour erred in refusing to permit these questions to be put t< the witness.

The judgment must be reversed, with costs, and a nev< trial granted.

Manning and Ohristiancy JJ. concurred.

Martin Ch. J.:

I concur with my brother Campbell that the judgment should be reversed. Upon the subject of the admissibility of the cross-examination of Allison, respecting his interest and the terms of his holding, I have no doubt but thal the questions were proper, as they related to facts and circumstances connected with the matters stated in hi< direct examination, and to no new matter touching the merits of the case. They related to the terms and conditions of the holding, respecting which Allison had already testified; and are admissible under the rule of The People v. Horton, Dewey v. Campau, The Phil. & T. R. R. Co. v. Simpson, 14 Pet. 448, and Johnson v. Jones (reaffirming the rule), 1 Blade, 209.

Judgment reversed.


author: Martin Ch. J.:

text:
    Christian Crouse v. Charles M. Derbyshire.
    Where a defendant in Jnstioes Court has been duly served with process, and appears on the return day, and plaintiff declares against him on a contract, the defendant’s oral admission of the cause of action is sufficient to authorize the justice to render judgment against him. ,
    It is only where the parties appear without process that a written confession signed by the defendant is required by the statute.
    Defendant being in possession of a quantity of wheat, plaintiff brought replevin for one hundred bushels, which were measured out and taken under the writ from the whole quantity. Held to be no valid objection to the maintainance of the action that plaintiff did not demand and take under the writ the whole quantity; the evidence showing the whole to have been the plaintiff’s, and that he did not own as tenant in common with others.

      Heard July 16th.

      Decided October 21st.
    Error to Clinton Circuit.
    Replevin by Derbyshire for one hundred bushels of wheat.
    On the trial, plaintiff, to show title to the wheat, introduced in evidence the docket entries in a suit before a justice of the peace, between himself as plaintiff, and Joseph T. Church as defendant, which suit appeared by the entries to have been commenced by summons which was returned served: and it further appeared that on the return day the parties appeared; that plaintiff declared on a promissory note, and that in court defendant admitted the execution of the note, and 'his indebtedness thereon, whereupon the justice rendered judgment against him for the amount.
    This evidence was objected to on the -ground that the justice had no authority to render judgment in the case without a confession in writing, signed by the defendant, as required by the statute; but the objection was overruled.
    The plaintiff then proved that, by virtue of the execution issued on this judgment, he caused some thirty acres of wheat to be levied upon and sold as the 'property of said Church, which wheat was subsequently harvested and threshed by other claimants, and came to the possession of defendant, from whom plaintiff demanded it, and on his refusal to deliver it up, sued out a writ of replevin for one hundred

      bushels, by virtue of which the officer entered upon defendant’s premises and measured out and took away one hundred bushels from the whole amount of said wheat, which was about two hundred bushels in one parcel and undivided.
    On this evidence the defendant requested the Circuit Court, among other tilings, to charge the jury :
    1st. That by replevying one hundred bushels of wheat, the plaintiff abandoned all claim to the remainder, if any; and therefore,.
    2d. That for the purposes of this suit the plaintiff’s title a- claim must be limited to the one' hundred bushels replevied, and cannot, for any purpose whatever, be extended to any other or greater quantity;
    3d. That if the jury shall find that the wheat replevied was at the time intermixed with any other wheat without the fault of the defendant, the plaintiff and defendant must be deemed to have been owners in common of the wheat, and that in such case the plaintiff cannot recover in this suit; and
    4th. That the burden of proving, that such intermixture was. by defendant’s fault, is upon the plaintiff.
    The Court refused to grant and charge the said requests, as a whole, but did charge the jury that if they should find that by the levy and sale the said plaintiff was the owner of all the wheat- in the said bin, then there could be no' objection to his replevying one hundred bushels of it. The Court further charged the jury that one tenant, when goods are owned by tenants in common, cannot maintain replevin for said goods. And
    That if there is an intermixture of goods, the burden of proof that such intermixture was by defendant’s fault, is upon the plaintiff
    The jury returned a verdict for plaintiff, and defendant brought error.

      J. W. Longyear, for plaintiff in error.

      JR. StricMand, for defendant in error.
   Martin Ch. J.:

The judgment upon the justice’s docket in the case of Derbyshire against Church, was properly admitted and read in evidence. In cases,, regularly commenced by process, the parties may appear and plead cither orally or in writing; and the defendant may as ell admit as deny the action. The Legislature never contemplated so great an absurdity as to require proof by the sworn statements of a bystander, that the defendant had confessed the action in the presence of the justice and in open court, in order to authorize the rendition of a judgment upon such admission. When the action is commenced by process, as in the case before the justice, and the parties appear, and the plaintiff declares and the defendant pleads, either by denial or confession of the action, there is technically an issue joined; and the jurisdiction of the justice to render a judgment is coextensive under either plea. In the one case he hears the proof from the mouths of witnesses; in the other, from the defendant. What the Legislature meant by authorizing a justice of the peace to render judgment upon an issue joined between the parties, was simply that it should be upon pleadings; and any pleading known to the law which authorizes a finding and conclusion by the court, whether upon or without evidence, is within the • spirit and the letter of the statute ; and he hears the proofs and' allegations of the parties as much upon a declaration and cognovit, as though he received the sworn testimony of witnesses upon a declaration and plea denying the action. And there is no reason for any other construction of the statute; for no benefit can result from a departure from this common'law method, and requiring a denial of that which the party is willing to acknowledge, in order to confer the authority to render a judgment.

As the law now stands, parties may be witnesses in their own behalf, as well as for their adversary. How absurd would it be to refuse the confession of a defendant made in the progress of a trial, unless he should make it upon oath. If the admission of a party or his attorney made in the progress of a trial is binding, why should it not be equally so when made in open court, at the forming of the issue, to prevent expense and litigation. In my opinion, an oral admission or cognovit is within the statute, and confers upon the justice as ample jurisdiction to enter judgment as would the sworn statements of witnesses.

But when a judgment is rendered without process, or the publicity and formality of a trial, the statute requires that the confession of the debtor shall be in writing, signed by himself in presence of the justice. In this case the jurisdiction is acquired from the written confession, as in others it is from process and appearance. And it is to cases of voluntary appearance of the debtor only, without process, that the requirement of a confession in writing is limited.

We discover no error in the charge of the Court, when viewed in the. light of the facts of this case. Whether the plaintiff by replevying the one hundred bushels of wheat abandoned all claim to the remainder or not, was immaterial; and so it was immaterial whether his title and claim should be limited to that quantity or not. For the purposes of this case such only was his claim; and with any claim to or title in any other wheat the jury had no concern, unless to inquire whether the whole bulk was held in common by these parties. It is not claimed by the defendant’s counsel that the defendant had any title to the wheat in common with the plaintiff before the writ was served, but that by replevying only one hundred bushels from the mass he abandoned the remainder, and that therefore he thereby became thenceforward a tenant in common of the whole bulk, and cannot maintain the action. The fallacy of this argument is made apparent by its statement. The right of the plaintiff depends upon the condition of the title at the commencement of the action, and the replevy of but one hundred bushels cannot affect his right to recover if the wheat was his, however it may be should any future action be brought for the residue.

We think therefore that the refusal of the Court to charge as requested, and the charge as given, were correct;, and the judgment is affirmed, with costs.

Manning and Campbell JJ. concurred.

Christiancy J. concurred in the result.


author: Campbell J.:

text:
    Truman G. Rose v. Hernan M. Lewis.
    Where trover is brought for the conversion of a promissory note, plaintiff is entitled to prove the existence and contents of the note, without giving defendant notice to produce it.
    Where a case has beon tried in the Circuit Court without a jury, and improper evidence has been received, and it is then removed to the Supreme Court for review upon the whole facts, that Court will not reverse the judgment for the admission of the improper evidence, if there is sufficient of an unexceptionable character to sustain it.
    Where defendant has converted a promissory note belonging to plaintiff, and the Court is satisfied the note was available at its nominal amount to the plaintiff, he may recover that amount, notwithstanding the maker is proved not to have property from which collection might be enforced by execution.

      Heard October 8th.

      Decided October 21st.

    Case made after judgment, from Livingston Circuit. The case is sufficiently stated in the opinion.

      JET. JET. EHarmon, EME. EB. Wilcox and O. EETa/wlcins, for defendant:
    The Court erred in allowing the contents of the note to be proved without notice to produce it. Also in permitting questions to be put to witnesses as to what the note was worth to the plaintiff. — Sedg. on Dams. 515, 516, 558; 1 Gray, 151; 28 Vt. 2. Also in allowing witnesses to express opinions as to the value of the note to the plaintiff without any special circumstances to show that it was of different value to him than to any one else. Also in rendering judgment for plaintiff for the face of the note, when the maker was shown to be insolvent. — Sedg. on Dams. 514; 1 B. & Adol. 528; 1 Cow. 240; 22 Mo. 393.

      G. V. N. Lothrop and D. B. Duffield, for plaintiff:
    Allowing the contents of the note to be proved was clearly right — 1 Greenl. Ev. § 561. And it was clearly right to allow the plaintiff to recover the amount he could have realized upon the note from the maker. — 10 M. & W. 576; 9 M. & W. 657; 26 Conn. 483; 7 Bing. 460; 2 Rawle, 241; 1 Cow. 240 ; 2 Taunt. 440; 28 Mo. 181.
   Campbell J.:

This was an action of trover for the wrongful conversion of a promissory note given by one McCabe to the plaintiff, and pledged to defendant for a debt paid before action brought. The Court below gave judgment for its full amount, and the case comes up for review on the law and the facts.

It was objected to the proof by parol of the existence and contents of the note, that no notice had been given to produce it. There is no foundation for such an objection. Where the defendant is notified by the pleadings that the plaintiff intends to charge him with the possession of the1 instrument, no further notice to produce it is required. — 1 Greenl. Ev. § 561.

Objection was also made to the reception of evidence of the opinions of some of the witnesses concerning the value of the note in question at a period anterior to the conversion, and also of opinions concerning its present value not founded on any facts disclosed. As, however, the case was not tried by jury, and we are called upon to review it on the whole facts, as it was presented to the' Court below, and not merely on legal questions, we can not properly reverse the judgment for such a reason, if there is enough evidence of an unexceptionable character to sustain it. Had proper evidence been excluded, a new trial would be necessary; but any improper evidence may, as in Chancery causes, be disregarded, if not controlling or necessary to the conclusions arrived, at.

Considering, then, only such evidence of the value of the note as has a basis in facts, it becomes necessary to decide whether it presents a case which can, in accordance with the rules of law, sustain the judgment below.

It was proved by several witnesses that the maker of the note was in debt, and had not property to pay his debts. The plaintiff was, however, permitted to show that the maker of the note was honest, was working for plaintiff, and expected to pay it, and was good to pay his debts when able. It is claimed by defendant that the want of property to pay his debts showed conclusively the insolvency of the debtor, and that the note was worthless. It is further claimed that _ plaintiff could not properly be allowed to show that the note was worth more to him than to others.

It is undoubtedly true that damages for the conversion of articles having a regular market value are measured generally by that value. But that is only because such a measure furnishes the precise redress which the law always aim’s at giving, by making good as near as may be the injury which the aggrieved party has sustained. Where articles have not a standard or market value, then their value to the owner, so far as they are susceptible of pecuniary -measurement which is not fanciful or merely speculative, furnishes the true test.

The value of negociable paper is well understood not to be absolutely dependent on the amount of property liable to execution which may be possessed by its maker. A very large portion of current securities of undoubted goodness would, under such a test, be’worthless. And, in cases where a holder of such paper is indebted to the maker, it may be as valuable to him, by way of set off, as if the maker were wealthy and in sound credit. The value of. commercial paper must always depend very much upon the integrity and business habits of those who issue it. And we cannot perceive the justice or good sense of any rule which should disregard the results of common experience. We think the Court below was entirely authorized from the evidence to conclude that the note in question would have been available to plaintiff at its face. f\The judgment must be affirmed, with costs.

The other Justices concurred.


text:
    Charles T. Gorham v. Nelson H. Wing and others.
    Trust estates are not liable to levy and sale on execution.
    Under tho Revised Statutes of 1838 a sale of lands on execution did not divest the titlo of tho judgment debtor until consummated by a deed.
    Where a complainant in Chancery has stated his case defectively, and no demurrer has been interposed, but defendant has only claimed the benefit of a demurrer, by his answer, and the case is brought to a hearing on pleadings and proofs, it may be proper to allow the defect in tho bill to be corrected at tho hearing if the proofs show complainant entitled to relief.
    The time for redemption on sales under said Revised Statutes was to be computed exclusive of the day on which the sale was made.
    A deed to consummate an execution sale, executod before the time of redemption ha6 expired, is void.
    The act of Congress of May 19th, 1828, adopting for the final prooess of the United States Courts the laws of the several States on the subject, having by the act of August 1, 1842, been mado applicable to the States afterwards admitted, is to have the same effect in the new States as if originally adopted at the last mentioned date. It is therefore to be construed as adopting such laws of Michigan on the subject as were in force August 1, 1842.
    On sales made by the. United States Marshal in Michigan on demands accruing in 1842, for moneys collected by a publio officer, or for misconduct or neglect in office, two years redemption was allowed.
    Whore suit was brought against a public officer, for balances reported against him at three several times, it was held that the action must be deemed to have accrued against him at the date of the last balance.

      Heard May 27th, 28th and 29th.

      Decided October 21st.

      Appeal in Chancery from Washtenaw Circuit.

      A. Feloh for complainant.

      G-. V. -ZV. Aothrop for defendant.
   Christiancy J.:

The first question is, whether the bill makes a - case which entitles the complainant to relief?

Complainant claims to derive title to the lands in ques. tion through a sale on an execution issued by the Circuit Court of the United States for the District of Michigan, on a judgment recovered in favor of the United States on the 4th of January 1847, in an action of assumpsit for moneys received by Lee as Receiver of the United States Land Office at Green Bay, between October 1887 and the first day of April 1842. The sale was made by the Marshal, December 22d 1847, to the United States. The bill merely sets forth the sale made by the Marshal, the receipt on the execution by the U. S. District Attorney of the $1,500 purchase money bid .by the United States for the property, and the giving of a certificate of sale by the Marshal (which on reference appears to be dated December 22 1847, and states that the sale will become absolute at the expiration of one year, unless previously redeemed “in the manner prescribed by the statutes of Michigan and the rules of this Court’’). The bill does not allege the execution of any deed by the Marshal in pursuance of the sale, nor in any manner refer to the existence of such deed: but, in the derivation of complainant’s title, after stating the certificate of sale, proceeds to state a sale and conveyance of the property by the United States to one Timothy Stillman, and then deduces the title through several intermediate conveyances, down to complainant. It also, in a subsequent portion of the bill, avers that the land had not been redeemed from the sale.

By way of showing the pretended title under which defendant Arnold claims, the bill states the execution of three several official bonds by said Lee as Receiver, and by certain sureties therein mentioned, the “first dated July 29th, 1837, the second December 9th, 1837, and the third November 15th, 1838. None of the parties to this suit executed the first bond, but defendant Wing was one of the sureties in the second, and defendants Wing and McCauley, and one Joseph Arnold (father of defendant Arnold) were, among others, sureties in the third. The bill avers three several settlements or statements of account between the United States and Lee, as Receiver. That on the one of December 9th, 1837 there was found due to the United States from said Receiver $1,311.92, on that of November 15th 1838, $5,028.14, and on that of April 1st 1842 $1,500.31. That on the eleventh day of June 1842 the defendants, Wing and McCauley, pretending to said Lee that they were liable to the United States for large sums of money on account of said bonds, and in consequence of the supposed defalcation of said Lee, ¿so,, and preteuding that they were anxious that the property of said Lee (being the land in question) should be held in trust by them for the sole and only purpose that the same could1 be turned out by them to satisfy any deficiency there might be in the accounts of said Lee with the United States, induced Lee to execute and deliver to said Wing and McCauley a deed of conveyance of the said land, with warranty, which deed was absolute in form, and was duly acknowledged and recorded, as a deed of conveyance; but that at the time of the execution and delivery of this deed, Wing and McCauley executed under their hands and seals, and delivered to said Lee, their bond or writing obligatory, which is set out in haec verba, and which, after reciting the fact of the conveyance to Wing and McCauley, is conditioned as follows:

“If Thomas Lee bears Nelson II. Wing and William McCauley harmless for certain bond or bonds said Wing and McCauley have signed as surety for said Lee, to the United States, as Receiver of Public Moneys of the Land Office at Green Bay, then said Wing and McCauley agree to re-deed to said Lee the above described land. It is understood that if the United States can hold legally said Wing and McCauley, as said Lee’s surety, that said" Wing and McCauley have a right to turn this property out to satisfy the demand at any time they see fit, and they the said Wing and McCauley, are to have the above land until they are discharged by the United States from any liability in consequence of having signed as surety for said Lee. It is thought said Wing and McCauley are now clear, but said Wing and McCauley take this deed of said land to bear them harmless, left they might have to bear the expense, one or both of them, of a law-suit with the United States.”

This bond, declaration of trust, or defeasance, does not appear to have been acknowledged or recorded.

The bill then states that, on the 29th day of December 1844, a suit was brought by the United States, against defendant Wing, as surety on the second bond, and that on the first day of July 1844, on a trial in the Circuit Court of the United States for the District of Michigan, it was made to appear that said Thomas Lee was not indebted to'the United States, but that the sum claimed in that suit had been paid and satisfied; and that thereupon said Wing had judgment. That on the 26th September 1843 another suit was brought by the United States in said Coui’t against said Wing, upon the third bond; that on the 22d July 1844 a judgment was recovered by stipulation against said Wing for $50,000, to be discharged on payment of $1,500.31 and interest at six per cent from April 13th 1842. That on the 30th September 1843 suit was commenced by the United States against McCauley on said third bond, and that on the l^th June 1844 judgment was recovered against Mm by default for $50,000, to be discharged on payment of $1,696.41. That complainant is informed and believes that judgments were also recovered against many or all the other persons named as sureties in said bonds. That on the 10th of April 1852 Lee caused said judgments against Wing and McCauley, as well as those against all the other sureties to be discharged of record.

The bill then states that said Wing & McCauley, on the 28th day of Jun'e 1850, severally pretending to have “some right title and interest in fee simple” in said land, executed and delivered their several deeds of conveyance of the same to defendant Arnold, which were duly acknowledged and recorded — charges, upon information and belief, that said Arnold at the time was informed and well knew, that Wing & McCauley had not then, and never had, any right,' title or interest in said premises, or any right to sell or convey the same; that he well knew that they had only the right to turn out said premises to satisfy any claim the United States might have against Lee and his sureties, by reason of his defalcation as Receiver, &c.; that he had notice of the levy and sale to the United States, and that the United States and' their, grantees were the legal and equitable owners thereof: and that the said Wing & McCauley held the said lands in trust only for the United States, subject to any indebtedness the United States might at any time have against said Lee and his sureties, on account of any deficiency in the accounts of said Lee, as Receiver: and that “ said Arnold well knew that all the right, title and interest of said Wing and McCauley in and to said premises were extinguished by the levy and sale of said premises on said judgment and execution” (against Lee). That Wing & McCauley sometimes pretend that they have been compelled to pay sundry sums of money in the employment of counsel and in defending said suits, &o.’, but charges that Lee employed all necessai-y counsel, that there was no appearance on the part of McCauley: that in the suit against Wing judgment was rendered against him on stipulation, and that Lee employed counsel and defended said causes, and was at all necessary expense. That Lee remained in possession till September 1850, and then surrendered the land to Williams, one of the coxnplainant’s grantors, and took a lease from him till the first of April 1851; that said lease was assigned by Williams to Thayer (through whom complainant derives title) when Williams conveyed to Thayei’, September 20th 1850. That after this lease, in the fall of 1850, defendant Arnold .went into possession by force, and compelled Lee to remove from the same: and that neither Wing & McCauley nor Arnold ever had possession in any other way. That complainant believes there is danger that Ai'nold, Wing & McCauley will sell, dispose of, and convey, or otherwise encumber said premises, unless restrained by injunction. That complainant has applied to Wing, McCauley and Arnold, and requested them to convey to Mm, &c., so that the cloud upon Ms title might be removed.

The bill calls for an answer without oath.

The prayer for relief is that said Wing and McCauley and Arnold may be decreed to deed and convey said premises to complainant, or that the deed from Lee to Wing and McCauley, and that from Wing and McCauley to Arnold, may be set aside and held for nought; and for other relief, &c.; and prays an injunction.

It is clear from this statement of the bill that it proceeds upon the theory that the United States had obtained, by the sale on the execution, all the right and 'title which Lee held in the land at the time of the levy and sale, whether that right was the legal estate or a mere equity, and that complainant holds that right, claimed by the bill to be the legal title, through a puxohase of the same from the United States.

If the ease made by the bill fails to show that the title of Lee was divested and transferred to the United States by the sale on the execution, then, as no other title is claimed, it is quite clear the complainant is entitled to no relief under this bill in its present shape, whatever may have been the nature of Lee’s rights in the land, or of the interest held by Wing and McCauley under Lee’s deed.

One of the principal questions discussed upon the argument was, whether this deed from Lee to Wing and McCauley, taken in connection with the bond, or instrument of trust, or defeasance, constituted a conveyance of the title, in trust, or merely a mortgage of indemnity: defendant’s counsel insisting upon the former and the complainant’s counsel upon the latter view. Though strongly inclined to consider it more in the nature of a trust than that of a mortgage, we do not think the question neces sary to the decision of the present case, and shall not therefore assume to decide it.

If a trust, the interest of -Lee was not liable to levy and sale on execution against him, and no title or interest whatever passed by the sale, or could have passed by the execution of a deed by the Marshal. Trask v. Green, 9 Mich. 358; Lessee of Smith v. McCann, 24 How. 398.

The bill treats the conveyance of Lee to Wing and McCauley as a conveyance in trust, and the 'relief prayed by the bill is in accordance with this view. But the bill, nevertheless, seems to go upon the theory, and expressly claims, that complainant had obtained the legal title through the execution sale — a claim not easily reconciled with the idea of the legal title being in Wing and McCauley in trust, at the time of the levy and sale.

But if the deed is to be treated as a mortgage, leaving the title of the property, subject to the mortgage, or what is usually denominated the equity of redemption, still in Lee, liable to sale on execution, we think the bill fails to show the mortgagor’s title divested and transferred to the United States by the execution sale. Whether the statute which we suppose to be applicable to the case (R. S. of 1838, Part 2, Title 5 Ch. 3, §§ 1, 20, 21 and 22), was intended to authorize the sale of the mortgagor’s interest in any case except when the instrument would be recognized as a mortgage at law, and without the necessity of a suit to determine its character, we think admits of much doubt. But whether thus confined, or extended-to every instrument which, though absolute on its face, might for any cause be treated as a mortgage in a court of equity ; in either view of the statute the proceedings for divesting the mortgagor’s title by execution sale are the same as on the sale of the fee not subject to mortgage: and the interest of the mortgagor, whatever it may be, does not, we think, pass by sale on execution and a certificate of that sale, but the officer’s deed is necessary to pass that interest to the purchaser. The statute (which as will be hereafter shown, was adopted by the act of Congress) provides the mode of transferring the title on execution sale. It is not the purpose of the certificate given on the sale, either before or after the time of redemption has expired, to pass the title of the property sold. A certificate was necessary as written evidence to satisfy the Statute of Frauds (Jackson v. Catlin, 2 Johns. 248), as well as to preserve the evidence which was to entitle the purchaser to a deed when the time of redemption should have expired.

It does not purport to convey the property sold. It is merely required to contain, “ first, a description of the premises sold: second, the price bid for each distinct lot or parcel: third, the whole consideration money paid; fourth, the time when such sale will become absolute, and the purchaser or purchasers will be entitled to a deed as hereinafter provided.” (Section 10 of the chapter above cited). This certificate is to be presumptive evidence of the facts therein contained. If not redeemed within the time allowed by the statute, “the officer making such sale, or his successor, shall complete the same by executing a deed thereof, in due form of law, to the purchaser; and such deed shall be valid and effectual to convey all the right, title and interest which was sold by such officer.” (Sec. 12 of same Chapter).

Until the execution of the deed, the sale must be looked upon as incomplete and inchoate only, whether the time of redemption has expired or not. Causes might perhaps exist which would render the execution of a deed improper, and possibly the sale might, for good cause, be set aside on motion. If the officer should neglect or refuse without good cause to execute the deed at the proper time, the purchaser has a clear remedy by a proper application to the Court to compel its execution j and doubtless the United States, as a purchaser, had the same remedy as any other purchaser. And in case of the death or removal from office of the Marshal who made the sale, or the expiration of his commission before the execution of the deed, the act of Congress of May 7, 1800, §3 (2 Stat. at Large, 61) provides that the purchaser may apply to the Court from which the process issued, and set forth the case, assigning the reason why the title was not' perfected by the Marshal who sold the same; and thereupon the Court may order the Marshal for the time being to perfect the title and execute a deed to the purchaser.’’ But until the United States had acquired the interest of Lee (whatever that was), by the execution of a deed, they could not convey that interest. It is possible that the sale and deed to Stillman might be construed as an assignment of the certificate of sale, but if so> it did not convey the interest in thd land, but only the right to call for a conveyance from the officer, and perhaps to compel such conveyance in a proper proceeding against him. It is unnecessary to consider the point, whether the deed might not be dispensed with in a case like the present, if its execution had become impossible or could not be enforced; as no such case is presented by the bill, and no reason or excuse shown why it was not obtained. The subject of the deed is in no way alluded to. But the complainant would seem, by his bill, to have purposely left his ease to stand upon the certificate, without the aid of a deed. The deed therefore is not in issue, and if one was properly executed, it would not be admissible in evidence without an amendment of the bill, as it would not tend to establish the case made by the bill. Warner v. Whittaker, 6 Mich. 136; Bloomer v. Henderson, 8 Mich. 402; Barrows v. Baughman, 9 Mich. 220 ; Story Eq. Pl. § 257 Doubtless an allegation of title, if not demurred to, .may sometimes be so general as to admit in evidence anything which tends to establish a title; because anything which would have such tendency would be included within the scope of the allegation. But here the title is not stated by way of a general allegation, and could not well be; but the derivation of the title is specially set forth, and made to rest upon the certificate, without any allusion to a deed.

But as the bill was not demurred to, and the benefit of a demurrer only claimed generally by the answer, and the parties have gone to a hearing upon pleadings and proofs, it might have been proper, had a valid deed from the Marshal been proved, still to allow an amendment of the bill in this respect: and with this view it will be proper thus far to examine the proofs.

An instrument purporting to be a deed from the Marshal seems to have been proved, and is' returned with the exhibits — several objections being taken to the exhibits which it is not necessary here to notice. But we do not think this instrument can be recognized as a valid deed under the execution sale: for the reason that it was executed before the time of redemption had expired, and consequently, when the Marshal had no power to execute any deed upon this sale: and if not valid when executed, it could not become so by the debtor’s subsequent failure to redeem. Quod initio non valet tractu temporis non convalescit.

First; if the time of redemption, by the statute applicable to the case, was but one year, as seems to have been supposed by the Marshal in executing the certificate and deed, still we think the deed was executed one day too soon. The sale was made December 22, 1847, and the deed is dated and acknowledged December 22, 1848. The only statutes which we suppose can be claimed to apply to the case are, the Revised Statutes of 1838, Chap. 3, Title 5, Part 2 (either with or without the amendment of 1839 hereafter noticed), or the Revised Statutes of 1846? Chap. 79 Title 18. If the amendment of 1839 be excluded, then under both revisions, the period of redemption was “ within one year from the time when such sale shall have been made.” When time is to be computed from the time of an act done, we think the more reasonable rule is that the day on which the act is done is to be excluded from the computation. Ex, parte Dean, 2 Cow. 605; Homan v. Liswell, 6 Cow. 659; Snyder v. Warren, 2 Cow. 518 (a case of redemption under the statute); Commercial Bk. &c. v. Ives, 2 Hill, 356 and note; 3 Chitty’s Gen'l Pr. 109 ; Pitt v. Shew, 4 B. & Ald. 206. This rule would have given the whole of the twenty-second day of December 1848 for redemption, and, until that day had expired, the power of the Marshal to execute the deed did not exist.

But we think the period of redemption applicable to this sale was two years.

We are aware of no act of Congress which directly regulates the proceedings on execution, or the time of redemption in such cases, but the whole subject is provided for by acts of Congress adopting the state laws upon the subject, and rules of court made under the authority of those acts.

The third section of the act of Congress of May 19, 1828 (4 Stat. at Large 278) adopted upon this subject the then existing laws of the several states, with the proviso, however, “ that it shall be in the power of the courts, if they see fit, in their discretion, by rules of court, so far to alter final process in said courts as to conform the same to any change which may be adopted by the legislatures of the respective states for the state courts.” That this act applies to the redemption of land sold on execution, as part of the proceedings, we think can admit of little doubt. See U. S. v. Knight, 14 Pet. 301; Amis v. Smith, 16 Pet. 303; Hopkins case, 2 Curtis’ C. C. R. 567.

.By the act of Congress of Aug. 1, 1842 (5 Stat. at Large, 499), “the provisions of” the above act'of May 19, 1828 “shall be, and they are hereby made applicable to. such states as have been admitted into the Union since the date of said act.”

As to all the states admitted into the Union between the date of the act of 1828 and that of 1842, the effect of the latter act must, we think, be the' same as if the act of 1828 had been re-enacted in haec verba: and, consequently, as Michigan was one of these states, the act must' be construed as an adoption, by Congress, of the laws of this state applicable to this subject, as they existed on the first day of August 1842, so fai* as the same were valid. Beers v. Haughton, 9 Pet. 329. Whether the Federal Courts would have any power, by rule, to alter the effect of the state laws then in force, and thus adopted, otherwise than to conform their process to any subsequent change in the-state legislation, it is not necessary here to decide, as this case does not raise the question.

By Rule 99 of the Circuit Court of the United States for this District, adopted July 5, 1847, Title 18, Ch. 79, and Title 22, Ch. 106, of the Revised Statutes of 1846 were adopted, as to executions in cases where the cause of action accrued subsequent to the revision. This rule cannot therefore apply to the present case, as the cause of action accrued prior to that time. But the rule further provides that executions on causes of action accruing prior to the Revised Statutes of 1846, shall be according to the law existing when the cause of action accrued. Whether this was really what was intended by the rule, or whether it was intended merely to conform to the decisions of the Supreme Court in Bronson v. Kinsie, 1 How. 316, and McCracken v. Hayward, 2 How. 608 (which we do not understand to adopt so broad a principle), may be doubted; and we are not entirely satisfied that under the power to make rules, given by the act of 1828, the Courts have any power, in adopting State laws, to make a distinction based merely upon the time when the cause of action accrued. But it is unnecessary to decide this question, since, admitting the rule of 184V to be valid, it in no way changes the result in the present case from what it would have been if the case were left to stand upon the act of Congress of 1842, and the State laws thereby adopted.

The action against Lee was assumpsit to recover the balances found due on the several accounts stated, one of December 9, 183V, one of November 15, 1838, and the last April 1, 1842. As it would be difficult in respect to the execution, to treat the different portions of the cause of action as having accrued at three several times, so as to apply one law to the one portion and another to another, the whole we think, must be treated as having accrued, within the meaning of this rule, at the time of the last account Stated, April 1, 1842: and the laws of the State on this subject were the same on that day as when adopted by the act of Congress, August 1, 1842. The State laws, then, applicable to the case in August, 1842, must govern it.

As to executions in ordinary cases, the act of February IV, 1842, Laws of 1842, p. 135, so far as it had any validity under the Constitution, was then in force. But, whether valid or not in any case, it did not apply to the execution against Lee, as Receiver of public moneys; as the sixth section excludes the ease from its operation, by expressly providing^that “this act shall not be construed as extending to any proceedings as for contempt to enforce civil remedies, nor to any action for fines and penalties, or on promises to marry, or for moneys collected by any public officer, or for any misconduct or neglect in office, or in any professional employment.’’ The act of March 27, 1841, Laws of 1841, p. 47, repealed by this act, contained a similar provision, (§ 6). All the cases, therefore, thus excepted from these acts, were left to stand upon previously existing laws, which, as to these cases, were in no way affected by these acts.

What, then, was the prior law applicable to these cases as it existed in April (and in August), 1842, when the cause of action arose?

The only law applicable to the time of redemption of lands sold on execution, in such cases, was Chap. 3, Title 5, Part 2, R. S. of 1838, as amended by act of April 20, 1839, Laws of 1839, p. 220. Sections 13, 16 and 1.7 of the original chapter fixed the period at “ one year.” The amendment of 1839 struck out “one’’ and inserted “two,” thus making the period two years. This amendment would seem to have been overlooked by the Marshal in drawing his certificate and deed. If this was not the occasion of the error, the Marshal must have supposed the sale to come under the provisions of the Revised Statutes of 1846, which fix the period of redemption at one year. — Rev. Stat. of. 1846, §13, Ch. 79, Title 18. But this statute could not apply, as it had neither been adopted by act of Congress, nor the rule of Court as to such cases. — Beers v. Haughton, 9 Pet. 329; Catherwood v. Gapete, 2 Curtis C. C. R. 94; Hopkins' case, Ibid. 567. By rule 68 of the Circuit Court (November term, 1838), it will be seen that the Revised Statutes of 1838 on this subject were adopted, and by an amendment of this rule July 20, 1840, the amendment of statutes by the act of 1839, was, in effect, adopted. But we have not relied upon this rule, because, being prior to tbe act of Congress of 1842, the power thus to adopt State statutes might be questioned. In any view, therefore, we have been able to take of the case, the deed was void for want of power in the Marshal to execute it. The complainant’s case would not therefore be helped by an amendment stating the deed which was in proof.

The complainant, therefore, not having obtained Lee’s right in the land, does not stand in a position to question the deed from Lee to Wing & McCauley, nor that from them to Arnold.

The decree must be set aside, and the bill dismissed with costs to the defendants, of both courts.

Manning and Campbell JJ. concurred.

Martin Ch. J. concurred in the result.