author: Pratt, J.

text:
    Burgan vs. Lyell, et al. Members of the United States Mining Company.
    Where a member of a Mining Company, wlio was also one of the managers of the Company, employed the plaintiff to work for the Company, it is immaterial whether his powers as manager were general, or special and limited; if the plaintiff had no notice at the time of any abridgement of his powers by the articles of co-partnership, every member of the company, in legal contemplation, without any special powers being conferred upon him by the articles of co-partnership, is not only a principal, but a general agent for all the co-partners in the transaction of the company business.
    A person who was a member of a Mining Company, and who had assigned his stock in the company to a third person, is liable as a co-partner for debts subsequently contracted by the company with a person who had no notice of his withdrawal from the company.
    Case reserved for tbe opinion of tbis Court.

      Backus & Harlaugk for plaintiff.

      A. Davidson, for defendants.
   Pratt, J.

Tbis is an action of assumpsit, brought by tbe plaintiff in tbe Wayne County Court, for work and labor claimed to have been performed for tbe defendants in then- Mining business.

Tbe cause was submitted to tbe Court below, on a written statement, in which it is admitted, that tbe defendants impleaded in this suit, include all tbe members of tbe company; that they all signed tbe original articles of co-partnership, and prosecuted tbe business of mining under them.

These concessions thus made, constitute conclusive evidence, as against the defendants, of a partnership in fact, in which they are all, as partners, engaged in the business of mining. (2 Greenleaf. Ev., § 484.) It further appears, from the case submitted, that Andrew Harvie, a member, and one of the managers of the company, employed the plaintiff to perform the work in question. But whether his powers, as one of the managers of the company, were general, or special and limited, does not appear; nor is it material to a judicial determination of this cause, as every member, in legal contemplation, without any special powers being conferred upon him, by the articles of co-partnership, is not only a principal of the firm, but a general agent, for all the co-partners, in the transaction of then legitimate company business, (Story on Part., 1; Harrington Ch. R., 172,) each member being vested with power, which enables him to act at once as principal; and all are regarded, as being present and sanctioning the engagements and contracts, which they may singly enter into, within the scope of their partnership matters. (Story on Part., 158-'9.) Harvie then, being one of the partners, was vested with the right of contracting with the plaintiff, and any work performed by him for the company, under the contract, would legally bind all of the partners for the payment of it. Although Harvie, as a single member was inhibited from making such a contract, by some express provision of the articles of co-partnership, still the rights of third poisons, to whom such provision was unknown, would not be thereby affected, nor would it tend in the least, to bar a third person, who had by the procurement of a single member, without notice, rendered services for the company, in recovering therefor, in a suit against all. (2 Greenleaf Ev., § 481; Story on Part., 193.) The plaintiff, by the procurement of Harvie, as appears by the case, labored for the company, in their mining operations, nine months and two days, at $18 per month.. In this labor of the plaintiff, all the partners were interested, and in judgment of law, all are presumed to have been cognizant of its performance, and to have derived, at least some benefit from it; hence all are, as they shoidd be, by every principle of justice, held equally responsible to the plaintiff for the payment of the services thus rendered. And as it regards their joint liability, it is a matter of no legal moment, whether some of the partners were dormant in fact, or whether they subsequently assented to, or dissented from, the proceedings of those ■with whom they had entrusted the management of their company business; they would, nevertheless, be jointly liable to the plaintiff for his work

After the services were rendered, the plaintiff, as appears by the case,, made out an account therefor, against the company, the balance of which, after deducting some small sums which had been paid and credited, amounted to ^14'7 43, on which John Greenfield, their superintending agent of the hands employed on the mining location, certified to John Winder, a member and also one of the managers of the company, that the account was correct, and that the balance thereof, was due to the plaintiff; Winder afterwards, on presentation of the account and certificate to him, paid the plaintiff $40, which was endorsed thereon.

It is a well settled principle of law, “that the acknowledgment by one partner, during the continuance of the partnership, of a debt, as due by the partnership, will amount to a promise binding on the firm.” The certificate of the superintending agent, and the recognition of the account by a member and one of the managers of the Company, constitute sufficient evidence of such acknowledgement. “And so a part payment of a debt of a firm by one partner, during the continuance of the partnership, will not only extinguish pro tanto the partnership debt, but will operate as an admission of the existence of the residue of the debt, binding on all the partners.” (Story on Partnership, p. 160.)

These are rules of law about which there has never been any disagreement, either by legal authors, or courts of last resort; and by them all the members of this company, are equally liable to the plaintiff, for the payment of the balance due him on the account.

The question: “ Whether a member who had sold out his shares in the company stock, would be relieved from liability without notice, before the work was done, or from the payment of debts created subsequent to such sale,” propounded to the Court for decision, is not involved in the case, as it is drawn up and submitted; the answer is, that each member of the partnership, will continue liable to third persons, for any debts or liabilities incurred in the transaction of their legitimate company business, until a dissolution of the copartnership, and notice thereof; (Story on Part., § 334, ’5 and ’6, together with cases therein noted;) and that a dissolution, by one of the partners silently withdrawing, or assigning his interest in the company stock to another, can not legally have the effect to relieve such partner from liability for work done before, or debts contracted after thus silently withdrawing or-assigning.

The opinion therefore of this Court is, that the plaintiff is entitled to judgment for the balance of his account, and interest from the time of its liquidation.


source: Caselaw Access Project

author: By the Cornt, Wing, J.

license: Public Domain

text:
    Manning et al. vs. Williams et al.

    The presentation to and allowance by commissioners on the estate of a deceased partner, of a* partnership debt, under R. S., ch. 72, § 19, does not make it necessary in an action by the creditor against the surviving partners for the same debt, to show that he has exhausted. his remedy against the estate of the deceased partner.
    Case reserved from Macomb County Court. The only question was, whether the plaintiffs could sustain an action on a promissory note made by the firm of Eastman, Williams' & Co., against James Williams and Sexton H. Eastman, two of the partners, after the death of a third partner and the allowance of the claims against his estate by the commissioners, without first showing they had exhausted their remedy against the estate of the deceased partner.

      Barstow é Lockwood, for plaintiffs.
   By the Cornt, Wing, J.

Case reserved by the County Judge of the County of Macomb.

The declaration counted upon a joint promissory note executed by the firm of Eastman, Williams & Co. to Manning, Leavitt & Co.

After the giving of the note and before this suit was commenced,. Robert F. Eastman, one of the makers of the note, died. Letters of administration were granted upon his estate and this claim was presented to the commissioners on his estate, and was allowed by them and reported to the Judge of Probate. It is admitted the estate is insolvent.

The pleadings and stipulations on file only present one question which is reserved for the opinion of this court: can plaintiff maintain his suit without first showing that he has exhausted his remedy against the estate.

The defence is founded upon the 19th sec. of chap. 72, p. 292, R. S. 1846, which provides that “when two or more persons shall be indebted on any joint contract or upon a judgment founded upon a joint contract, and either of them shall die, his estate shall be liable therefor: and it may be allowed by the commissioners as if the contract had been joint and several, or as if judgment had been against him alone; and the other parties to said joint contract may be compelled to contribute or to pay the same, if they would have been liable to do so upon payment of the same by the deceased.”

We think this statute was not intended to afiect or impair the reme, dy of the creditor against the surviving partners, but that the same remains as before the passage of this law, and that the effect of the statute is only to give the creditors additional legal remedy. At common law, the appropriate legal remedy was against the surviving partners. A remedy also existed in equity against the estate. (Story on Partnership, § 361, 362, p. 512-’13; 7 Cond. Eng. Ch. R., 183.) As the personal property of the partnership is subject to the control of the .survivor, and for the purpose of meeting all liabilities of the firm, no good reason can be assigned why the private property of the deceased should be disturbed and withdrawn from the claims of his private or personal creditors, when the property of the firm may be adequate to the discharge of all its debts. And no good reason can be assigned why the remedy of the creditor, by which he may reach the partnership effects, shall be postponed until the estate of one of the firm may be settled. It may appear solvent, but after considerable time has elapsed, and before distribution is ordered, it may be found to be insolvent, indeed almost all estates in the western States, turn out to be insolvent. A considerable period usually elapses after the death of the decedent before the estate can be closed. In the meantime, the effects of the firm may be dissipated by the survivors, and they become insolvent. By section 14 of the same chapter, the creditor is required to present his claim against the estate of his deceased creditor within a given time or his claim will be barred. By an effort to secure his remedy against the estate, he does not injure the survivors, and if he collects anything of the estate, they must contribute their portion of the amount so paid. As the statute does not internos prohibit the remedy sought in this case, we can see no reason why the common law remedy against the survivors may not be enforced, and the remedy against the estate preserved at the same time. There can be but one satisfaction.

Let it be certified to the County Court of the county of Macomb, as the opinion of this Court upon the point reserved, that the plaintiff can maintain his action, and that judgment should be given in his favor.

Certified accordingly.


text:
    Storey & Cheney vs. Child.
    A motion for judgment, as in case of non-suit, is a special motion, and must be founded upon affidavit, showing the facts necessary to entitle the party to Ms motion.
    The provisions of R. S., p. 463, § 4, requiring written notice of trial of issues of fact in the Circuit Court, is not repealed by the act of April 3d,*1848, entitledAn act to regulate and define the jurisdiction of the Circuit and County Courts.”
    If any part of the ground of a motion consists of an extrinsic fact, not apparent on the face of the proceedings, there must he an affidavit or other competent evidence of its existence.
    Case reserved from Ingham Circuit Court. Replevin. At the October Term of the Circuit Court, iu 1848, defendant made a motion for judgment, as in case of nonsuit, without affidavit or other evidence in support of his motion, on the ground that the case had not been noticed for trial by plaintiff. The motion was granted, and defendant, having elected to take judgment for the value of the property replevied, its value ■and defendant’s damages were assessed by a Jury. Whereupon plaintiff moved to set aside the assessment and the proceedings had on the part of defendant; 1st. because no notice of trial was necessary — the act of 1848, to regulate and define the jurisdiction of the Circuit and County Courts; having repealed that part of the Revised Statutes requiring notices of trial; 2d. because no affidavit was made of the fact that no notice of trial had been given.

      Go ole & Wells, for defendant.
   Pratt, J.

By the Revised Statutes of 1846, (p. 463, sec. 4,) written notice of trial of issues of fact in the Circuit Court is required; and by another provision (p. 516, sec. 2*7) in actions of replevin, either party may give notice of trial, but if neither party give such notice, the defendant may move for judgment, as in case of non-suit Neither of these provisions of the statute are repealed by anything contained in the subsequent act, entitled “ an act to regulate and define the jurisdiction of the Circuit and County Courts,” approved April 3, 1848, or by anything contained in the act supplementary thereto. If, therefore, the cause had not been noticed for trial by either party, the defendant was authorized, .under the statute, to move the Court for judgment. But in what manner should the motion for such a judgment have been made ? It was a special motion, founded on the alleged fact, that the cause had not been noticed for trial; this fact could not be presumed by the Com-t; nor- could the Court take judicial notice of its existence, without evidence, as it did not appear on the face of the proceedings. If any part of the ground of a motion, consists of an extrinsic fact, not apparent on the face of the proceedings, there must be an affidavit or other competent evidence of its existence. (3 Chitty Gen'l Practice, 537.) This is a well settled rule of practice. The alleged fact, of the cause not having been noticed, was an extrinsic fact, and without evidence of its existence, the motion for judgment, could not have been grunted. By the English rule, whenever the plaintiff has neglected to try his cause, according to the course of practice established, the defendant is at liberty to move for judgment, as in case of non-suit; this rule, in the first instance, by the English practice, is a rule nisi; yet it must be founded on an affidavit, showing affirmatively the state of the proceedings, and the plaintiff’s default. (2 Tidds Pr., 825.) But rules regulating our Circuit Com-t practice, have been established pursuant to statute, and while in force should be observed and enforced by Courts. The clerk is required by rule, to provide a book to be denominated, “The Special Motion Booh" in which attorneys are required to enter all special motions, to be made to the Court. {Rule 64.) And in ail cases of special motions, except motions for continuance, affidavits or other papera, on which they ' are founded, are to be filed at the time of entering the motion, and copies thereof served on the attorney of the opposite party. [Rule 24.) Notwithstanding these salutary rules, this special motion was not even entered in the Special Motion Book; .nor was there any evidence adduced in support of the alleged fact upon which it was predicated, by affidavit or otherwise. The motion, therefore, was erroneously granted.

The opinion of this Court is, that the motion should be sustained, and that the -assessment and judgment, as in case of non-suit, should, be set aside.

Certified accordingly.


text:
    Lyell & Teller, impleaded, &c. vs. Sanbourn.
    'When an act is done for the benefit of a partnership, a subsequent ratification of it during the partnership by one of its members, is a ratification by all.
    A general agency may be inferred from facts and circumstances — from the habit and course of dealing.
    A judgment will not be reversed for a mere formal error, in the proceedings of the court below, which does not affect the merits of the case.
    Error to Wayne Circuit Court.
    This was an action of assumpsit, brought by the defendant in error, in the Wayne County Court, against the plaintifis in error, and others impleaded with them.
    The declaration contained a count for work and labor done; also, for money paid, laid out and expended, and also, upon a due bill, in these words:

      “Detroit, Nov. 2d, 1848. .
    “Due Stephen Sanboumtwo hundred and fifteen 63-100 dollars payable on demand, being for balance in settlement of Globe Mining Company affairs.”
    And was signed, “Edgar F. Randolph,
    “ Sect’y Globe Mg. Company.”
    Lyell and Teller, two of the defendants below, by A. Davidson, their attorney, appeared and pleaded the general issue. The other defendants in the suit did not appear.
    On the trial of the cause in the County Court, Edgar F. Randolph, the only witness introduced by either party, was sworn on the part of the plaintiff, and testified in substance: that the defendants in this cause, compose the Globe Mining Company; that under that name they were openly and notoriously engaged, and jointly interested, in the business of mining in the copper country: that William F. Randolph, since deceased, was the original secretary of the company, but would never serve, and that he (witness) has always been the acting secretary; he was not appointed, but was requested to act, and has always been recognized as the secretary: that since the 29thMarch, 1847, he has used his own name, as acting secretary of the company, and it was notorious, and known to all of the members, that he was the acting secretary; and that, as such secretary, he made the deposits with defendant Lyell, drew checks on him, made up statements for all the different members^ settled all accounts with persons employed by the company, collected and paid out the money, adjusted all balances of accounts, and gave vouchers ; that he settled an account with the plaintiff and gave him a voucher dated 2d Nov., 1848, for $215,63, which was for the balance of his account, &c,, and $195,00, which he advanced for the company, to pay Littlejohn; the company was indebted to Littlejohn to the amount paid by the plaintiff; that in September, 1847, Littlejohn was employed to work for the company in mining at $25 per month, and the plaintiff at $20 per month; that afterwards he sent up by Martin Beezue over $200 in money, to pay off the plaintiff for his work, and directed Beezue to make the best settlement he could with Littlejohn, and gave him general authority on the subject; with the understanding that the company would owe him, or whoever would advance the money to pay Littlejohn; that when Beezue returned, he reported a settlement with Littlejohn, and that plaintiff advanced the money to pay him; that he (witness) mentioned everything to a majority of the committee, and that they never dissented; that when the plaintiff came down and presented his account, including the amount paid to Little-john, he (witness) recognized the settlement made with him, as he had been in the habit of doing as secretary, and without any dissent; that the payment of Littlejohn by the plaintiff, was talked over by several of the company, and Newbould and Teller both said it was as well that way as any; Lyell owned two hundred and fifty shares of the company stock, and he has always had notice of all meetings, signed by himself' as secretary, and thinks that Lyell sanctioned the settlement with the plaintiff, as he never dissented; that he always said he would do as the other members of the company did, and always paid all of his assessments until the last: that the plaintiff did not take the due bill as payment; and that Beezue was an agent as far as he could give him authority to act, which was given by the advice, and upon consultation with the principal members of the company.
    The defendants, Lyell & Teller, introduced in evidence, under objection, the printed articles of association of the members of the Globe-Mining Company.
    On this evidence judgment was rendered for the plaintiff for 1221 66 damages, besides costs of suit. Defendants, Lyell_ & Teller, sued out a writ of certiorari, and removed the jrrdgment and proceedings, into the Circuit Corut for the County of Wayne, where the judgment was affirmed; and they again removed the record into this Court, by Writ of Error.

      Davidson <& Holbrook, for plaintiffs in Error.

      Wilcox & Gray for defendant in Error.
   Pratt, J.

From the record it does not appearthat any exceptions were taken, on the part of the plaintiffs in error, to any proceeding or decision of the County Court in the course of the trial. The main and only question, therefore, to be determined by this Court is, whether in view of the law applicable to the ease, the judgment is sustained by the evidence. The voluntary association of two or more persons to place their money, effects, labor and skill, or some or all of them, in some commerce or business, with the understanding of sharing the profits thereof, constitutes such persons partners; and it is a fundamental principle of the law of partnership, that if persons suffer their names to be used jointly, in carrying on any kind of trade or business, or otherwise hold themselves out as partners, they are to be considered and treated as such, whatever may be their real relation, as between themselves; and this is strictly just, for the simple reason, that they may, by thus suffering their names to be used, or by holding themselves out as partners, induce third persons to give them credit, or perform services for them, which they otherwise could not have obtained. These are principles which have been too often settled, and are too well understood, to require any support, by reference either to elementary books, or reported cases. As appeared by the uneontroverted testimony .of witness Randolph, on the trial in the County Court, the defendants below associated themselves .together, under the name and style of “The Globe Mining Company," for the purpose of mining copper; and under such association, they as a firm, have been actually and somewhat extensively, engaged in the prosecution of their mining business. This clearly brings them within the legal rules designated, and renders them partners. How the company stock was divided among them, or whether they were to share the profits arising from the business equally, does not appear, nor is it necessary to institute any inquiry into that matter, as every partnership imports ex-vi termini a community of interest, in the profits of the business, and in the absence of all proof to the contrary, the legal presumption is, that they are to share equally. (Story on Part. 22 and 30; 3 Kent. Com. p. 28; 6 Wend. R., 263.) The defendants being partners, are equally liable for debts and liabilities incurred by the company, during the continuance of the partnership, and in relation to the rights of third persons, and creditors of the firm, it is, in legal contemplation, considered as continuing until notice of dissolution. (Story on Part., 480; 7 Miss. R., 29; 1 Harris R., 161; 22 Wend. R., 183.) If the claim of Littlejohn was valid against the company, and of this, it is apprehended, there can he no legal question, it being for services rendered in the prosecution of their legitimate company business, under express contract; and the defendant in error, by the request of the company, paid it, or the company subsequently recognized and ratified the payment thereof, then the liability of the company to the defendant in error, for money paid, clearly and legally follows. And, as to this principle, there can be no real doubt or controversy. The testimony of Randolph, the acting secretary of the company, on this point is explicit; he states that he sent Martin Beezue with over $200 to pay off the defendant in error for his work, and gave him direction and general authority to make the best settlement he could with Littlejohn, and told him that the company would owe him or any body else, who would advance the money to pay him; that on Beezue’s return, he reported the settlement with Littlejohn, and that defendant in error advanced the money to pay him; all of which he mentioned to a majority of the committee, and to which they never dissented; that he recognized the transaction, as secretary, and as he had been in the habit of doing, with the knowledge of the company, and without any dissent — that the matter was talked over with several of the members and that Newbould and Teller said it was as well as any( way &e. This testimony clearly constitutes, at least prima facie evidence, of a ratification of the transaction; and no matter whether all of the members in terms ratified it or not, if, in fact, Randolph was their general agent in the transaction of their company business, then, it was a ratification by all; but whether he was sirch agent or not, can not be material in a legal point of view, as tire evidence is explicit and certain as to its subsequent ratification by some of the members, and such subsequent ratification by a single member, during the continuance of the partnership, would be sufficient to bind all, for the payment of it; each member being principal, as well as general agent for all, within the scope of their partnership business, without notice to the contrary. (See the case of Burgan vs. Lyell and others, decided at this term, on this point, ante 102.) But was not Randolph in fact, the general agent of the company ? It is certainly true that he transacted all the business of the company. He kept the accounts, settled 'all accounts with persons in the employ of the company, collected the money and paid it out, deposited the company’s funds and gave the checks for drawing tbe same out, adjusted balances, gave vouchers, made up statements of the business for all the different members, and gave all notices for meetings of the company; and we hear of no other person acting for the company, in the general transaction of their company business, or of any dissent ever being manifested by the company, or any member thereof, to any of these general and continued acts of Randolph. A general agency may be inferred from facts and circumstances — from the habit and course of dealing; and if the facts and circumstances, or the habit and course of dealing, show either an original appointment, or a subsequent and continued ratification of the acts done, it will be sufficient to establish the agency and bind the principal.

In some cases the fact of agency may be inferred from a single act; for instance, a single payment, without disapprobation, of what a servant bought upon credit, has been hold to be equivalent to a direction to trust him again. (Green., on Ev., § 64, 65; Story on Agency, § 55; 1 Carrington & Payne, 60; 5 Ib., 346; 5 Burr, 2686; 1 Overton Tenn. R., 19; 2 Kent Com., 614, 615; 9 Bingham, 19; 10 John., R, 38.) In the case of Watkins vs. Vince, (2 Starkie R., 368,) it was held that the defendant’s son, a minor, having in three or four instances, signed for his father, and accepted bills for him, was sufficient prima fade evidence of authority to sign a collateral guaranty. And a subsequent ratification of an act done by one assuming to be an agent, relates back, and is equivalent to a prior authority. (12 New Hampshire R., 205.) In view of the legal principles established by these' cases, there can be no doubt that the evidence in this case is sufficient prima facie to prove that Randolph was the general agent of the company; and that all of his general and continued acts in the transaction of the company business, have been continually ratified and acquiesced in by the merqjbers generally, and without any dissent. Randolph being then such general agent, he was legally authorized ■ to adjust the account of the defendant in error, including the money advanced for the company to pay off Littlejohn, and to give the due bill in question, in the name of the company, for the same, and which legally binds each and every member for the payment thereof.

The judgment, therefore, is folly sustained .by the evidence in the case. This conclusion disposes of all the points made in the case, on .the part of the plaintiffs in error, except one, which is: “ that the judgment was erroneous, because the default of the defendants below, who were served with process and did not appear, was not entered.” This point is clearly not sustainable, as no such practice can be legally required in the county courts. If on the return of process personally served, the defendant does not appear within one hour after the time for his appearance, the Court is required to proceed with the cause, ex parte, &c. (R. S., 329, sec. 16.) This same provision is continued in the subsequent act to consolidate the laws in relation to county courts. (Sess. L., 1849, p. 275, sec. 14.) But if a different rule of practice prevailed, the counsel for the plaintiffs in error could not avail themselves_ of a mere formal error in the proceedings in the county court, which does not affect the merits of the case._ The error complained of -most certainly could affect no one except those who did not appear; and for those, the counsel do not pretend to .have appeared in this case.

The judgment of the Circuit Court for the county of Wayne, affirming the judgment of the Wayne County Court, is affirmed by this 'Court with costs.


author: Whipple, C. J.

text:
    Smith vs. Bonhoof.
    B. convoyed a piece of ground to L., Bishop of the diocese of Detroit, and bis successors in office, in trust for the erection of a church thereon to be used as a place of religious worship, and for the spiritual use, benefit and behoof of the German Roman Catholic Church Congregation, in the city of Detroit, according to the rites and ceremonies of said Roman Catholic Church, and for other trusts therein expressed. The deed also provided that in the event of a vacancy in the office of bishop, happening between the death of Bishop L. and the appointment of his successor, the premises should vest, during such vacancy, in the Archbishop of the Roman Catholic Church of which the diocese should be a suffragan. Trustees of the chinch were afterwards elected under chapter 52, R. S. In a controversy between the officiating priest and the trustees, as to which had the right to rent the slips*
    .Held: 1st, That under the deed of trust, and the constitution, laws and usages for the government of the Roman Catholic Church, by which the administration of the temporalities of the church is vested in the parish priest, the right to rent the slips belonged to th© .priest and not to the trustees.

      2d. That the provisions of the statute are not mandatory but permissive, and that no church can became incorporated under it, provided the power conferred by it upon the corporators is, by the constitution, laws and usages of the churches, lodged in another body, but the person or persons and his or their successors, in whom such power is vested by the constitution, laws and usages of the church, may become a body corporate by complying with the twenty-third section of the chapter.
    Case reserved from Wayne Circuit Court.

      Fraser é Vandyhe, for defendants.
   Whipple, C. J.

Tin's ease was originally tried in the County Court of the County of Wayne. A verdict and judgment having been rendered in favor of the defendant, the plaintiff moved the record and proceedings to the Circuit Court of the same county hy writ of certiorari. The Presiding Judge thereupon reserved the questions of law, arising upon the record, for the advice of this Court.

The case is both novel and interesting, and it is to he regretted that the plaintiff in error did not appear, by counsel, and argue the various-questions upon which the judgment of that tribunal was invoked. It was the right of the defendant, however, to proceed exparte, and I shall have to declare the conclusions to which wo have come, without the aid of that light, which the learned counsel for the plaintiff might have shed hpon the questions involved in the controversy. It is proper to state' here, that it is not my purpose to notice in detail all the errors assigned upon the record’, but to confine myself to the elucidation of those points upon which the real merits of the case must turn. In- the voluminous proceedings before us it is quite manifest, that many questions arose and were decided by the Court below, either entirely irrelevant to the issue, or having little orno connection with the substantial merits of the case. These questions whether correctly or erroneously decided cannot influence ouir judgment provided the verdict can he supported hy the application of sound legal principles to the facts set forth in the record, and which are material to a full understanding of the rights of the parties. From an examination of the proceedings in the Court below, it appears, that the Rev. Mr. Haslinger, a Roman Catholic Priest, was the pastor of St. Mary’s Church, in the city of Detroit, hy appointment of the Bishop of the Diocese; that, as officiating Priest of St. Mary’s, he rented all the pews of the church, on the 10th day of April, 184?, having given notice of the time of renting for three successive- Sundays. Mr. Has-linger states in his testimony, that the conditions upon which the pews were to he rented were read to the congregation from the pulpit, and posted on the church door. Among these conditions were the following: First, a person renting a pew, might continue to occupy it for an indefinite period, with the understanding that the lease might be determined by either party, upon giving one month’s notice; Secondly, the renting of the pews was to be confined to those who were in communion with the Roman Catholic Church; Thirdly, all pew holders were bound to observe the rules of order established in the church; Fourthly, the pew rent was to be paid quarterly in advance, and a violation of this condition was to be considered as a relinquishment by a pew-holder of his pew, and the same mightbe rented, without delay, to another person. ■ Pew 54 was rented to the plaintiff who paid his rent agreeably to the foregoing condition. The same witness states, that the rent for the second quarter was not paid; “and as troubles had commenced, he did not insist upon payment in advance.” That on the 1st, 2nd and 3d Sundays in Advent, and during the second quarter, he announced publicly to the congregation, that the rent was due and must be paid, designating particularly the pews upon which the rent had not been paid. A libe notice was posted on the church door, which contained an intimation that unless the rent was paid within eight days, the pews woirld be publicly offered for sale according to the conditions annexed to the original sale. Against this contemplated act, a written protest, signed by several who had not paid their rent, was handed to Mr. Haslinger, who paid no attention to it; on the following Sunday he read the protest, and announced from the pulpit that pew 54 and others upon which rent had not been paid, would be rented on Monday, 1? January, 1848, after mass. On that day some of the protestante appeared, to renew their protest; the pews, were nevertheless, leased on that day, by Mr. Haslinger, and Bonhoof, the defendant, became the lessee of No. 54, and went into possession of it. From the evidence adduced on the part of the plaintiff, it further appears that he and his family attended Divine Worship at St. Mary’s Church, and occupied pew 54 for a considerable period of time preceding Monday the 23d January, 184?; that, on that day the plaintiff came to Church, and on reaching pew 54, found, it occupied by the defendant; he claimed the pew and demanded admittance; .this was denied by the defendant, who placed his hand on the door of the pew, saying at the same time, that he had rented it from-the Priest. Evidence was also offered by the plaintiff, tending to show an organization under Chap. 52, tit. 10, of the Revision of 1846. On the part of the defendant a deed from Antoine Beaubien and wife, to the Rt. Rev. Peter Paul Lefevre, bishop of that Diocese, of several lots of ground, upon which St. Mary’s Church is erected, was offered in evidence. The deedis dated 22d February, 1842, and in substance, conveys to Bishop Lefevre and his successors in office, the said lots upon certain busts therein expressed.

First, That the church to be erected on said lots should be used “ as a place of religious worship, and for the spiritual use, benefit and behoof of the German Roman Catholic Church Congregation, now in and about the city of Detroit; and of those who shall and may, from tíme to time, hereafter compose the German Roman Catholic Congregation, worshipping and to worship at St. Mary’s Church, on a part-of said above granted premises, according to the rites and ceremonies-of said Roman Catholic Church, and forming the said St. Mary's Church.”

Secondly, “ That they shall permit and suffer, whenever the said congregation shall wish so to do, a building to be erected and used and enjoyed, on a part of said above granted premises, as and for a school house for the use and benefit of the children and relations of those who compose, or who may, from time to time, hereafter compose the said congregation.”

Thirdly, That they shall permit and suffer, whenever the said congregation shall desire so to do, to be erected, used and enjoyed, on another part of said premises above granted, a house for the home and accommodation for the priest, who may from time to time, have charge of said congregation, and for no other purpose soever.”

Fourthly, “ And upon the further special trust that as soon as the said St. Mary’s church shall be fully completed, the said Antoine and: Monique may select and choose a pew in the said church, and have and hold the same during each of their natural lives, free and clear of all expense, payment, assessment and charge whatsoever.”

Fifthly, “ And upon the further special trusts, that the said Right Reverend Peter Paid Lefevre, at the time of the ensealing and delivery of these presents, do and shall covenant and agree for himself and for those after him, who are to have and. hold in trust the said above granted premises, as aforesaid; that after the fully completing said church, there shall be said and celebrated therein, according to the rites and ceremonies of said Roman Catholic Church, the masses following, to wit: an annual mass for the said Antoine Beaubien and Monique Beaubien during their and each of their natural lives, and after their deaths, yearly, a requiem mass for the soul of said Antoine, and for the soul of the deceased father of said Antoine, and also a yearly mass for the souls of the departed.”

The deed also provides that in the event of a vacancy in the office of Bishop, happening between the death of Bishop Lefevre and the appointment of his successor, the premises are to vest, during such vacancy, in the “Archbishop of said Roman Catholic Church of whom, at the time of the happening of such vacancy, the Roman Catholic Diocese of Detroit is then a suffragan, and with the Vicar General of such Archbishop, and the suffragan of them,” subject to the several trusts in said deed set forth and expressed. The deed also contains a covenant on the part of Bishop Lefevre accepting the trust, and agreeing “to adhere to and beep the trusts hereinbefore contained and declared;” It was shown that the plaintiff claimed the possession of pew 54, under a resolution of the trustees elected under the provisions of chapter 52. This resolution is dated 22d January, 1848. The proof further shows that Bishop Lefevre contributed about $3,600 towards the construction of the church.

Upon these facts the natural question in the case arises — Had the trustees, appointed under the provisions of chapter 52, the authority to rent pew 54 to the plaintiff; or, was this authority, either under the deed to Bishop Lefevre, or the rules for the government of the Roman Catholic Church, exclusively vested in the Rev. Mr. Haslinger, the pastor*?

The right of Mr. and Mrs. Beaubien to make the grant to Bishop Lefevre, was not questioned. By it, the legal title passed to the Bishop, and whether or not he and his successors in office have the right of exclusive and continued possession, must depend upon the nature of the trusts created by the deed.

In giving a construction to the deed, and in ascertaining the true intention' of the grantor — the duties to be performed by .the trustee— and the rights of the cestui que trusts, we shall, necessarily, be led to inquire, to some extent, into the rules of faith, and form of government of the Roman Catholic Church. The leading and primary object of the grant, was to secure to the Germans of the city of Detroit and its vicinity, professing the Roman Cotholic faith, a church in which to celebrate Divine Worship, according to the “ rites and ceremonies” of that church. By a stipulation entered into between the counsel of the parties respectively, it was agreed that the volume containing the decrees of the Provincial Council of Baltimore should be admitted as authentic and as evidence of decrees therein contained; and that the Provincial Council is the highest Ecclesiastical Judicatory of the Roman Catholic Church in the United States; and as such, has authority to prescribe decrees or laws as aforesaid, for the government and discipline of the church within its proper jurisdiction, and that the State and Diocese of Michigan are within its territorial limits; and it was further admitted, that the Canon law and the decrees of the Provincial Council in conformity therewith, constitute the rule of church government in the United States? so far as they are not controled by the municipal law. The standard authors on the Canon law, it was also agreed, might be read as evidence on the trial. . This stipulation, with others entered into between the parties, narrowed very much the field of discussion and enquiry. What then, appears from the evidence in the case, to bo the law of the church in respect to the control and possession of buildings consecrated and set apart for the celebration of Divine Worship, and administration of the Sacraments ? It is not my purpose to analyse all the testimony adduced on this point, but to separate from the mass, such portions as appear to bear more directly on the question. The Rev. Mr. Kenderkins, Yicar General of the diocese of Detroit and Professor in the Theological Seminary, stated that he was educated for the church — had made the Canon law, as a branch of theology, the subject of Ms studies, and was acquainted with the government and discipline of the Roman Catholic Church in America. This witness furnished numerous translations from what he characterized as standard works on the Canon law, and testified as to the practical construction by the Church of that law, respecting the control and administration of church property. Among the translations were the following from the Corpus Jw'is Canonici, a great work of the highest authority and wMch is an abridgment of the body of the Canon law, as it is found scattered through several thousand volumes: “It has been resolved according to the rule of prior Canons, that all churches wMch have been built or are building, shall be under the control of the Bishop in whose diocese or territory ■they are.” “No layman may occupy or dispose, (disponet) of churches ■or church property; he who shall have done otherwise ought, according to the Chapter of Alexander, to be expelled from the church.” The word disponet, ” the witness stated, means to have the disposal or 'administration of a thing. “We have learned in the 9 th act, that certain persons of our College or order, have, against ecclesiastical customs, laymen constituted stewards of things pertaining to Divine WorsMp; tliere■fore, we in this matter decide, that each Bishop, according to the decrees of the Council of Chalcedon appoint .for himself a steward from his own clergy; for it is unbecoming that a layman be the Vicar of a Bishop.” “Those who are associated with the Bishop in church administration to be of the same profession or habits, for they cannot be joined in office together, whose employments and inclinations are different. If any Bishop, therefore, shall give ecclesiastical things to be administered by a layman, or governed without the supervision of the arch priest (or steward) he will be^adjudged a contemner of the Canons, and a fraudulent administrator of ecclesiastical things.” By “ ecclesiastical things” the witness ■stated, is included the church buildings, the ornaments, church property, the cemetery, or property given to the church for poor orphans or any other pious purpose whatever. “No faculty of disposing of ecclesiastical tMngs is known to be given to any layman, no matter how pious he may be. ” “ If any of the princes, or other laymen, shall have claimed •to himselfi disposal or domination of ecclesiastical things, he shall be adjudged guilty of sacrilege.” Mr. Kenderkins stated that the universal usage of the church was in accordance with the Canons he had translated, and that the Bishop had the supreme control, within his jurisdiction, of the church and church property; under him, the control was vested in the vicar general; and under the vicar general, the parish priest had the control in his parish. It seems also, from the testimony, that the authority of the priest to exercise clerical functions is derived from the Bishop or vicar general; and that the exercise of those functions, without the permission of the Bishop or Vicar General would subject the priest to the penalties of excommunication, and the congregation who received him would be declared schismatic.

The defendant offered in evidence the acts of the 1st Provincial Council, from which he read the following decree: “Whereas, lay trustees have frequently abused the rights granted to them by civil authority, to the great detriment of religion and scandal of the faithful, we most earnestly desire that in future, no church be erected or .consecrated unless it be assigned by a •written instrument to the Bishop in whose diocese it is to be erected, for divine worship and use of the faithful, whenever it can be done.” This decree was passed in 1829, and was approved in 1830 by the Pontiff, or Council at Rome, of which he is the head. From the date of its ajrproval, Mr. Kenderkins states, it became obligatory on the Bishop, and upon the faithful. If disobeyed before promulgation by the faithful, they would not be deemed guilty of sin, being ignorant. The testimony in this case shows it was promulgated on the 20th April, 1843.

From the statutes of the diocese, a diocesan decree was read, as follows: “Adhering to 5th decree of 1st Provincial Council of Baltimore, we have decreed, that henceforth no church shall be built or consecrated in this diocese, unless previous to that, we shall be made the sole trustee and administrator thereof.” This decree was promulgated as early as 1841. Mr. Kenderkins further testified that the Bishop refused to recognize the church as Roman Catholic, or consecrate it, unless it was deeded to him in accordance with the laws for the government of the church. The testimony of Mr. Kenderkins touching the law and usages of the church, in respect to church property, was corroborated by other witnesses.

These extracts from the testimony of Mr. Kenderkins, would authorize a jury to infer, that by the law for the government of the Roman Catholic Church, the administration of the temporalities of the church,, or, at least, of the church edifice, is confided, under the control of the Bishop and Vicar General, to the parish priest. Evidence may have been introduced tending to show that the law had not been universally applied, and that the administration of the temporalities of the church had been exercised by laymen. All the facts however, elicited during a protracted tidal were submitted to the jury, whose finding is conclusive, unless manifestly against the weight of evidence.

But my present purpose in adverting to the evidence on this branch of the case,, and to the verdict of the jury, is to enable me to pass a more enlightened opinion upon the .true interpretation of the deed from Mr. and Mrs. Beaubien to Bishop Lefevre.

Does the deed, then, upon its face, and construed with reference to the laws prescribed for the government of the Roman Catholic Church, contemplate that the legal estate and a continued possession of the St.. Mary’s church shall vest in the Bishop and his successors in office l And first, with respect to the deed. It does not simply vest property-in one person in trust' for, or for the use of another, but a trustee is* interposed for the purpose of executing certain things, specially pointed-out. In the language of the books the trustee is not the “mere passive depository of the estate,” but under the covenant in the deed, and the nature of the trusts, he “ is bound to exert himself actively in the execution of the settler’s intention.” The trustees elected under the State, are authorized to take into their possession and custody all the temporalities of the church. Such -possession is utterly inconsistent with the whole scope and object of the deed from Mr. and Mrs. Beaubien to the Bishop. It would put it in the power of the statutory trustees to prevent the execution, by the trustee appointed by the deed, of the intention of the donors. It is the duty of this Court so to construe the instrument as to enable the trastee to perform the duties, with which he has been entrusted, and the failure to perform which might either work a forfeiture of the estate, or render the trustee liable upon his covenant.

The execution of the legal powers with which trustees elected under the statute are clothed, would be in direct conflict with the execution of the duties devolved upon the trustee appointed by the deed, and defeat the obvious intention of the donors. By the 8th section, the trustees, under the direction of the congregation, are not only empowered to erect churches, and houses for their ministers, but “ other buildings for the use of the church, congregation or society.” The execution of such a power would be to devote property, granted for certain specified objects, to other objects never contemplated by the grant. The only buildings authorized to be erected on the land embraced in the deed, are a church, a building for the residence of the priestj and a school house. The right of the grantors, thus to limit and circumscribe the uses to which the property mighijibe applied, is unquestionable, and I know of no lawful authority by which the uses to which it is dedicated' by the terms of the deed, may be diverted, and the estate devoted to other and very different purposes. The 18th section makes it lawful for the Circuit Court of the county in which a religious corporation ■shall have been constituted under the statute, on the application of such corporation, to order a sale of any real estate belonging to them, and to direct the application of the moneys arising therefrom, to such uses as the corporation, with the approbation of the Court, shall conceive to be for the interest of such corporation. I am inclined to think a Court would hesitate long before assuming to direct the sale of the property granted by Mr. and Mrs. Beaubien to Bishop Lefevre, to be used in perpetuity for certain designated prrrposes. It would be an act of usurpation which can find no parallel in any country, where laws exist recognizing the right of every person to make such disposition of his property as his judgment or fancy may suggest, provided that no rule of law or principle of public policy is violated. Such an act would in effect impair the obligation of the contract entered into between the parties to the deed. I think it very clear, that the right of occupancy and possession given by the statute to trustees, is applicable solely to cases -where the property is granted or devised directly to the church, or congregation, or to another person in simple trust for the use of such church or congregation, and that the legislature never contemplated any restriction upon the rights of an individual to dispose of his property, for religious purposes, to a trustee of his own appointment in special "trust.

Assuming that under the Canon law the administration of the temporalities of the church belong to the clergy, to the exclusion of the laity, and I imagine there can be no doubt as to the intention of the donors. They were both members of the Roman Catholic Chiu-eh, and are presumed to have executed the deed to Bishop Lefevre, with full knowledge of the existence of the rule. They no doubt felt that they were reposing a trust in the grantee and his successors, which would be executed with scrupulous fidelity. It probably never occurred to them that a personal confidence thus manifested in the Bishop and his successors for all coming time, could by any legislative action, be granted over to others; or that the continued possession of the trustees necessary to insure the performance of the duties covenanted to be performed by them, was to be transferred to others, and thus defeat the special purposes pointed out in the deed.

The views I have expressed touching the construction of the deed from Mr. and Mrs. Beaubien to Bishop Lefevre and of the provisions of the statute, dispose of this case, and make it unnecessary to express any opinion respecting the validity of the organization by a portion of the congregation of St. Mary’s Church, by virtue of which the trustees undertook to assume the control of the church edifice. The question, however, is directly presented by the record, and it may subserve the interests of this church and restore harmony among the members, that the opinion of the Court should be made known upon that precise question. It was insisted in the -Court below, that any church might organize under the provisions of the statute, and that lay trustees elected pursuant thereto, might assume the control of the temporalities of the church, notwithstanding the administration of such temporalities is, by the form of government of the Roman Catholic Church, committed exclusively to the clergy. I cannot think this view of the statute is sound. It cannot be that in this country, where religions liberty is enjoyed and protected by constitutional enactments, the Legislature of this State intended to vest in lay trustees, a power which would close the doors of every Catholic chinch in the State. If I am to believe the testimony of witnesses, it is clear that when the control of the church edifice is wrested from the clergy and placed in the hands of laymen, it ceases from that instant, to be a Roman Catholic Chiu-ch. This must necessarily follow, if indeed, it be a fundamental law of the church that ecclesiastical things can only be administered by the clergy. A violation by any particular church, of the constitution or laws by which the great body of the church to which it is united, is formed, dissolves its connection with that church as effectually as if no connection had ever existed.

A congregation, professing to be Roman Catholic, must not only hold the same faith, but must render submission to the government and discipline of the church of which it is a-branch. Obedience to the laws of a church by its members, is as" essential to its harmony and existence as obedience to the municipal laws is essential to good order and the existence of civil government. The duty of every member, connected with a church, to uphold and submit to its government and discipline is self-imposed; and if the obligations, voluntarily assumed, become burdensome, or his opinions undergo a change, he is at liberty to withdraw, in the mode prescribed by its constitution or laws. But no member of a church has the right to thrust upon his fellow members articles of faith to which his assent has never been given, or prescribe rules for the government of the society to which he never submitted. These principles, so obviously just and reasonable, could not have been overlooked by the legislature in adopting the chapter relating to religious societies; and it will now be my endeavor to show that the statute contains no provision in conflict with these principles.

The first section, makes it lawful for all persons of full age belonging to any church, congregation~or religious society, to assemble at the church or place where they statedly attend Divine worship, and to elect not less than three nor more than nine trustees to take charge of the estate and property belonging to such church.

The second section, confers upon such church, congregation or religions society the authority to choose their minister to be the president of the corporation. It is manifest that many churches could not become incorporated under the provisions of these sections, without violating the constitution or usages prescribed for their government. For instance, the temporalities of churches in connection with the Protestant Episcopal Church of the U. S. are administered by Wardens and Vestrymen; now it is clear, that under these sections there could be no capacity to establish a corporation, without bringing the powers conferred upon trustees by the statute, in direct conflict with the powers vested in the Wardens and Vestrymen by the Canons of the chinch. So there may be, and are churches, the temporalities of which are controlled by ministers, or by ministers and laymen, or by a body constituted of both ministers and laymen acting separately. The provisions of the statute would be inapplicable to such church organizations, and the consequence would be, that trustees would be clothed with powers utterly inconsistent with the powers vested in these several bodies by the constitution and usages of their-respective churches. To obviate this difficulty the 23d and last section of the chapter applies a remedy. That section provides, in subtance, that, “when by the constitution, rules and usages of any particular church or religious denomination, the minister, or ministers, elders and deacons, or other officers, elected by any church or corporation, according to such constitution, rules or usages, are thereby constituted the trustees of such church or corporation, it shall be lawful for such minister, or ministers, elders and deacons, or other officers, to assemble together, and execute under their hands and seals a certificate, stating therein the name by which they and then successors in office shall forever thereafter be called and known, which certificate shall be acknowledged, or proved and recorded as hereinbefore directed. Whereupon such persons and their successors in office, shall be a body corporate by the name expressed in such certificate, with all the rights, powers and privileges of other religious corporations, constituted according to the provisions of this chapter.” This section repels any inference, that the legislature intended to repeal or'disturb the constitution or laws by which churches in this state were governed. No possible motive is perceived for such legislative interference, and it is believed that the popular sentiment in this country would not tolerate any legislation calculated to overthrow church organizations. The legislature wisely intended that each church, might be left free to adopt its own form of government. If experience shall demonstrate, that such a power cannot safely be lodged with the several church judicatories, it will then be time for the legislature to apply such a remedy Ss may avert any actual or anticipated mischief. The argument that it might prove dangerous for a foreign power to prescribe rules for the goverment of a church in this country, it seems to me, has but little foundation. I am not aware that any evil consequences have flowed from the exercise of such a power by a church whose head resides at Rome. The allegiance which a Roman Catholic owes to the spiritual head of his church, rightly understood, in no way conflicts with that allegiance which he owes to the constitution and laws prescribed by the civil government of which he is a citizen. Should any conflict arise, the former must yield.

Prom a careful examination of the statute, therefore, I am led to the conclusion that its provisions are not mandatory, butpermjssive, and that no church-can become incorporated, provided the powers conferred by the statute upon the corporators, is by the constitution, laws, or usages of the church, lodged in another body. If it be true, as the jury have' found, that the powers conferred upon trustees by the statute, are by the constitution, laws, or usages of the Roman Catholic Church, exercised , by the Bishop of each Diocese, or under him, by his Vicar General, or Pastor of a particular chinch, then under the provisions of section 23, such Bishop, or Vicar General, or Pastor, may become incorporated, and the powers exercised by them in their capacities as Bishop, Vicar General, or Pastor, by virtue of the laws or usages of the church, would be exercised by them as a corporation. The administration of the temporalities of the chinch would be committed to the same persons, deriving however, then powers from different sources. If then, in the language of the statute, the constitution, rules, and usages of the Roman Catholic Chinch, constitute then minister or ministers trustees, clothed with the powers conferred upon them by statute, then it would seem to follow, that tile powers claimed by the lay trustees, chosen under section 1, to administer the temporalities of St. Mary’s Church, cannot be upheld, for the reason, that the statute declares that those powers are to be exer- ' cised by a distinct body of men. Their acts would be as nugatory as those of a minister of the Presbyterian Church, who might become incorporated under section 23. The attempt on the part of any such minister to execute the powers conferred by statute upon religious corporations, would be irregular, because by the constitution of the Presbyterian Chinch those powers are conferred upon laymen, whose exclusive right it is, to administer the temporalities of the church, and who^ alone can become incorporated under section 1.

The leading object of the statute was, to enable religious societies or . congregations, more conveniently to administer the temporalities -of churches with which they are respectively connected, and not to -interfere with articles of faith or rules of government, adopted by any denomination of Christians. To effectuate this purpose, the persons authorized by such rules to control church property, are permitted to' assume corporate functions in the manner pointed out by the statute.

In this, as in cases of a like nature, involving the right to control real estate, granted or devised for religious purposes, Courts do not enter the wide field of theological discussion, for the purpose of determining the soundness or orthodoxy of the faith professed by any denomination of Christians. In a contest between persons, touching the control of church property, it frequently becomes necessary to determine what are the tenets, and what the discipline of a particular church, in order to give full and complete effect to the benevolent intentions of those who dedicate their property to religious or charitable objects. This is the line which indicates the boundaries of our powers.

In the ease before us, the principal object of the giant was to secure the erection of a Roman Catholic Chinch, for the Germans of this city and vicinity, in which divine service was tobe celebrated according, to its-rites and ceremonies. The grantors manifestly intended that the church to be erected should be a branch of the parent stock; united to it by a common faith, and by those rules which are prescribed by the highest judicatory for its government and discipline. Any act of the congregation by which a faith different from that taught by the Church is promulgated, or any attempt to overthrow its government, would be to defeat the intention of the donors; and the powers of a court of equity might be successfully invoked for the purpose of administering the trust according to the true intention of the donors. It is not sufficient, to preserve the connection between St. Mary’s and the mother church, that there should be a mere identity of religious faith or belief, but its members are bound to submit to the discipline ánd government to which they have impliedly pledged submission and obedience.

From the views I have taken of the legal rights of the parties under the deed, and of the statute relating to religious societies, it does not become necessary to examine other questions in the Court below,- as they have little or no connection with the real merits. The ruling of the County Court upon these questions, whether erroneous or not, can not affect the judgment, which the statute directs shall be rendered in the Circuit Court to which the case was removed by writ of certiorari.

It must be certified to the Circuit Court of the county of Wayne, as the opinion of this Court, that the judgment of the County Court .should be affirmed.


author: Ry the Court, Green, J.

text:
    Fralick et al. Adm’s, vs. Norton et al.

    'Tito following instrument is not a promissory note: $60. Plymouth, Jan’y 11, 1841*
    ‘ Two years from date, for value received, we or either of us promise to pay E. W. or bearer, sixty dollars, with use. Said W. agrees that if fifty dollars be paid on the first day of January, 1843, it shall cancel this note. Signed by the makors.
    Case reserved from Washtenaw Circuit Court. The only question presented by tbe case was, whether the following instrument, and ten others in all respects similar, except in their amounts and times of payment, were promissory notes, and could be declared on, and given in evidence as such:

      $60. Plymouth, Jan’y 11,1841.
    Two years from date, for value received, we or either of ns promise to pay E. Woodruff or bearer, sixty dollars, with use. Said Woodruff agrees that if fifty dollars be paid on the first day of January, 1843, it shall cancel this note.
    The instrument was signed by the defendants.

      Morgan, Davidson & Holbrook, for plaintiffs.
    O. Hawkins, for defendants.
   Ry the Court, Green, J.

Promissory notes, like bills of exchange, enjoy the privilege, conceded to no other unsealed instruments, of being presumed to be founded upon a valid and valuable consideration. (Story on Prom. Notes, § ?, 181.) This character was given to them by the 3 and 4 Anne Ch. 9, to which our statute corresponds. (B. S., p. 156.)

Under this statute, the requisites of a promissory note are, that it be a written engagement by one person to pay another person therein named, absolutely and unconditionally, a certain sum of money, at a time specified therein. (Story on Prom. Notes, § 1; 2 Bl. Com., 46?; Bayley on Bills, 1.)

“A bill or note,” says Mi-. Justice Bayley, “must purport that the money mentioned in it shall be payable absolutely and at all evenfe; if it purport to make the payment depend upon any uncertainty or contingency, the instrument is'not, except in certain cases as to the Stamp Duties, a bill or note; and if it be not a bill or note ab initio, no subsequent event can make it so.” (Bayley on Bills, Ch. 1, § 6.) It must be for a fixed and certain amount, and not for a variable amount. If the specific sum be not exjuessed at all, or it be uncertain in amount, or it be accompanie d by other words that make it more or less, according to circumstances, the instrument is void as a bill of exchange or a promissory note. (Story on Bills, § 42; lb. on Prom. Notes, § 20.)

The sum claimed upon the instrument set forth in the case made, is the sixty dollars and interest mentioned therein; for it is not claimed that the defendants were absolutely and at all events bound to pay the fifty dollars. The question then is, whether they by this note engaged absolutely and without any condition to pay the sixty dollars and interest.

The whole of the instrument must be taken and construed together, in order to determine this question. The first clause, taken by itself clearly imports such an agreement; but, by the last clause, it is made subject to the condition that if a smaller sum should be paid at an earlier day, such payment should cancel the note. Now if the condition had been, that the note should become void provided the makers should convey a certain estate or perform certain labor, or deliver certain goods within a limited time, no one would pretend that the instrument was a promissory note. Such an instrument would simply import an engagement to do one of two things at the option of the maker, and not abso* lutely and at all events to do either. And could such an instrument , be distinguished from the one under consideration ? The purport of it . is, that the defendants engage to pay fifty dollars on the first day of January, 1843, or at their option, to pay sixty dollars and interest, on the 11th of the same month. They were bound absolutely to pay the one sum or the other, but not to pay either sum at all events. The sixty, dollars with use they engaged to pay only in the event of their not paying the fifty dollars at a specified time.

I can see no distinction in principle, between this case and the ease ■ of an agreement to pay a certain sum at a certain time, provided a third person should fail to pay a sum certain at an earlier period; or to pay to D. or B., or his or their order. (2 Barnwell & Alderson, 417; Blanckenhagen vs. Blundell. See also, Hartley vs. Wilkinson et al., 4 Maule & Selwyn, 25.) It was the object of the statute to put promissory notes upon the same footing with bills of exchange, in every respect. Opinion of Kenyon, Ch. J., in Carlos vs. Fancourt, 5 Term R.., 482. Suppose a bill drawn by A. on B., requesting B. to pay C. fifty dollars ,on the first day of January, or sixty dollars and interest on the 11th of January, at B.’s election. B. by his acceptance of such a bill, would not be bound absolutely to the payment of either sum; and such a bill could not be said to be either payable at a certain time, nor for a sum certain. It evidently then would not possess the requisites of a bill of exchange, according to the law merchant.

The instruments declared on do not come within the definition of a promissory note, as given by any elementary writer. I am aware however, that there are some American cases, in which the qualities of a bill of exchange or promissojy note, seem to have been given to instru- . ments of this character. (See Bayley on Mils, p, 10, note i.) But the . well settled doctrine upon this subject in England, the general tenor of the American decisions, and the language of all .the elementary writers upon bills of exchange and promissory notes, are the other way.

The case of Makepeace vs. Harvard College, (10 Tick. B. 298,) is cited by the plaintiffs, as a strong case in their favor. An attentive perusal of the report of that case, however, will show that the instrument there in question, was not called by the court or counsel, a promissory note. The parties agreed upon a case, stating the facts; and they agreed that upon sucli facts, the Court should render judgment in favor of the College, for such sum as it was entitled to recover. The case made, embraced the original consideration of the agreement declared on; and the question argued, and which was examined and determined by the Court, was whether the note was a collateral undertaking in the nature of a penalty to enforce another obligation, or whether it was evidence, in connection with the other facts stated, of a subsisting debt to the full amount specified upon its face; and the Court decided that the defendant was justly indebted to the plaintiff in the full amount mentioned in the note. The form of the declaration does not appear from the report of the case; but it seems to me inferable from what does appear, that the plaintiff declared upon the instrument as a special agreement, supported by au adequate consideration.

It must be certified to the Circuit Com! for the County of Washtenaw, as the opinion of this Court, that the instruments in writing declared on, and offered in evidence in this case, are not promissory notes, within the statute; and that said Court did not, therefore, err in excluding them when offered in evidence by the plaintiffs.

Whipple, Ch. J., dissented.

Certified accordingly.


author: By the Court, Pratt, J.

text:
    Loree vs. Reeves.
    L. commenced a suit in attachment against R., a nou-resideut of the State, on 10th April, 1849. R., who resided in Orango County, in the State of New York, was first apprised of the attachment suit, on the 21st May, and on the next day wrote to A., a resident of the county in which the suit was pending, to employ H., an attorney, to appear and defend the suit for him, and was afterwards informed that If. had been so employed by A. On 21st August, in consequence of being unable, after much effort to ascertain the situation of the cause, or any information as to the oourse his attorney was pursuing, R. employed and sent J., an attorney of Orange County, to learn the facts and sec that the case was attended to. On the 20th September, J. returned, and iuformed him that H. had not appeared in the cause, or interposed any defense whatever, and that the plaintiff liad obtained judgment, And sold the property attached, upen an execution. Upon affidavits showing these facts, and ¿stating that defendant was not indebted to the plaintiff in any sum whatever, and that he had a good and substantial defense upon the merits, a motion was made on the 26th November, to set aside the judgment and all subsequent proceedings, and for a new trial on the ground of surprise. Heidi that the motion should be granted.
    Case reserved from Livingston County Court. Attachment. The affidavit of the plaintiff, on which the attachment issued, stated that defendant was indebted to him in the sum of $237, and that defendant was not a resident of the State. The writ was issued on 10th of April,. 1849, and was made returnable on the 23d of the same month.
    Under it, real estate appraised at $10,000, was attached. On the 26 th of June following, the plaintiff filed his declaration, by which he claimed the defendant was indebted to him for wheat and flour, and proceeded to trial ex parte, and obtained a judgment for $247,22 damages, and $23,43 costs, upon which an execution was issued and levied on the real estate attached; all of which on the 27th of August following was sold, and bid off by the plaintiff at $281,71. On the 26th of November after, defendant, by Wilson & Hubbard, his attorneys, appeared and entered a motion, founded on affidavits of defendant and two other persons, to set aside the judgment and all subsequent proceedings, and for a new trial, on the ground of surprise. The facte stated in the affidavits appear in the opinion of the Court.

      Wilson <£• Hubbard, for defendant.

      F. O. Whipple, for plaintiff.
   By the Court, Pratt, J.

Courts of record are vested with general discretionary power, on the subject of granting nerv trials; yet this discretionary power is judicial, and not arbitrary, and should always be exercised by Courts with great care in moulding their decisions on applications for new trials, in view of the peculiar circumstances connected with each case, so as to sub-serve tjie purposes of substantial justice, and in protecting at the same-time, the just and equitable rights of both parties. The actual administration, of impartial justice, is the great primary principle upon which judicial tribunals have been vested with this discretionary power; it is often indispensable in granting to suitors such relief as strict justice may require. Under it, relief has often been granted to parties for the last five hundred years, and the great utility of this branch of judicial power is not only recognized in all courts of record, but it has become a settled and well established principle in legal practice, to grant new trials whenever it becomes necessary for the protection of a party in his just, rights, where such party clearly has merits, and has not legally waived his rights, or otherwise lost them by some improper or unjustifiable laches on his part. The grounds are numerous upon which, relief in this manner is granted: it is granted for want of notice of trial, where such notice is required, or for other irregularities in the prosecution of causes — for the misconduct of the prevailing party — misbehavior of the jury — improper admission or rejection of testimony — misdirecting the jury — newly discovered evidence — surprise of a party— excessive damages — and for various other causes.

This application by the defendant for a new trial, is predicated on the ground of surprise, in learning that judgment had been rendered against him by default, &c. If the defendant, who seeks in this manner to be relieved from the effect of the judgment, has in fact a meritorious defense, which, with ordinary diligence on his part, he has been unable to make available, most certainly he has, in principle, as well as by precedents, a just claim upon the consideration of the Court for relief.

From the affidavits upon which this motion was submitted to the Court, it appears that the defendant is a resident of the county of Orange, in the State of New York; that he was first apprised of the commencement of this suit on the 21st day of May, 1849, and that on the next day he wrote to Mr. Allison, of the county of Livingston, requesting him to employ O. Hawkins, an attorney at law, of Ann Arbor, to appear and defend the suit for him, and was subsequently informed that he was so employed by Mr. Allison; that afterwards, and on the 20th day of August, in consequence of being unable, after much effort, to ascertain the situation of the cause, or any information as to the course his attorney was pursuing therein touching his defense, he employed and sent Charles Jansen, Esq., an attorney at law from the county of Orange, to learn the facts and see that it was attended to; who, on.or about the 20th of September, returned and informed him that his attorney (Hawkins) had neither appeared in the cause, or interposed any defense, but had entirely abandoned the same; and that the plaintiff' had obtained judgment, and sold all the property attached on execution; that he was never indebted to the plaintiff in. any sum whatever, for wheat and flour, or for any other consideration, and that he has a good and substantial defense upon the merits, &c. Mr. Allison in his affidavit; testifies that he did, pursuant to defendant’s letter of 22d of May, employ O. Hawkins, Esq., who agreed to attend to the suit for the defendant. Afterwards, and on hearing that judgment had been rendered in the cause, he wrote to the attorney on the subject, but receiving no answer, went to Ann Arbor himself, where he saw him, and who said he was going to sue out a writ of error, &c.

These facts are not in any manner controverted by counter affidavits, or otherwise, and certain it is that they show as great a degree of diligence on the part of the defendant in preparing to defend the suit, as ordinarily to be expected under the circumstances. He resided out of the State, and at a great distance from the county in which the suit was pending.- He was prompt in taking the necessary steps to employ an attorney, and he had no right to suppose that the attorney he did retain, and in time to have attended to the suit, and to whom he confidently confided the preparation and management of his defense, would abandon his case and suffer judgment to be taken against him by default, and property to the amount of $10,000 sold on execution without even giving him notice; on the contrary, in view of the legal obligation resting upon an attorney at law as an officer of the Court, he was authorized to believe that his attorney would appear and plead for him, and apprise him of the nature of the issue joined in the cause, and the time when the same would be brought to trial. But not hearing anything from him, he even incurred the extra expense of sending an attorney from the county of Orange to Michigan, in order to protect his rights in the case, though unfortunately, when it was too late; yet the expense incurred in this step, is at least some evidence of his bona fide intention to defend the suit; apparently ho could have had in contemplation no other object in sending this attorney to Michigan, and it is a fair legal presumption, arising at once upon tho facts, that the judgment, and sale of $10,000 -worth of property to satisfy it, was in fact a swpvise upon him. If so, then in justice, he is entitled to relief in the manner sought.

It is contended on the part of the plaintiff, that if the defendant has lost his defence to the suit by the negligence or improper conduct of his attorney, he should be compelled to seelc redress by action against the attorney. But he should not be required to pursue this course, if the remedy in the end, would be either doubtful or inadequate. The defendant in his affidavit, states that the attorney is reputed to be irresponsible ; and Mr. Allison testifies, that “ for several years, he has been well acquainted with his pecuniary circumstances, and that he is wholly irresponsible.”

The only answer to this evidence, is the affidavit of the attorney himself, and which is, at least, singular. He does not deny being retained by the defendant, nor does ho assign any reason for his subsequent course on the subject; and as to his responsibility, he says, that he is ready, able and willing to pay any amount of damage that the defendant has sustained by reason of any liability incurred on his part and behalf.” This is neither responsive or pertinent in fact, but equivocal; and for that reason, if no other, ought not to weigh much as against the positive testimony of Allison. Upon the evidence therefore, it is clear, that the defendant’s remedy as against the attorney would be ■a doubtful one; at any rate, such a remedy in this State, where no costs are allowed, would be most certainly inadequate. Although the responsibility of the attorney was undoubted, yet, if the defendant has in fact, a meritorious defense to the action, it would be 'great injustice to require him to pursue a remedy, which must necessarily be protracted, when the Court has the power to grant him speedy relief, without the trouble and expense of a suit at law' and without doing any injustice to the plaintiff, he having ample security for his demand, in the property seized under the attachment. And such is the rule which has generally been adopted by Courts. (2 Strange, 1208; 2 Salkeld, 645; 3 Caine, 100; 1 Price, 201; 1 Little, 24; 2 Caine, 336; 1 Halsted, 344; 14 Johns., 112; 3 Taunton, 484; 5 New Hampshire R., 531; 25 Wend., 663; 5 Hill, 272.)

• It is further insisted on the part of the plaintiff, that the defendant after learning that judgment had been rendered, was guilty of laches in not making his application for relief at an earlier day, and therefore not entitled to relief.

The terms of the County Court at that time were held monthly; the present attorneys for the defendant were retained by Mr. Jansen about the middle of September, and before his return home; so that hut one term of the Court intervened between that time and the November term, at which the application was made. The facts stated by Hubbard in his affidavit, furnish a reasonable excuse for the delay, and for the motion not having been made at the October term.

The opinion of this Court is, that the sale and judgment should be set aside, and a new trial granted, with costs to abide the event.