author: By the Court, Douglass, J.

text:
    Robinson et al. vs. Godfrey et al.

    Where a creditor agrees with his debtor, upon a good consideration, that he will never or not for a specified time, pursue against him either any or nil the remedies which the law gives for the enforcement of a particular demand, the agreement is not collateral to the original contract of indebtment, giving merely a claim for damages in case of its broach, but operates directly upon the original contract and will bar an action brought upon said contract before the time limited expires.

    Certiorari to Wayne County Court.
    The defendants in error, in August, 1849, under the boat and vessel law of 1846, attached the steamer Globe, on a claim for materials furnished. The plaintiffs in error paid a portion of the demand, executed a bond for the balance, and the boat was released, with an agreement on the part of the defendants in. error, that they would not attach or molest the boat for the balance of their claim, secured by the bond, until the latter part of September following. Before that time, however, the defendants again attached the boat for the residue of their demand, and the defense set up was, that the defendants in error were barred by their agreement made upon the partial payment, the execution of the bond, and release of the boat in August previous, from proceeding by attachment against the boat. In other words that their remedy by attachment ivas suspended until the latter part of September, which time had not elapsed.

      Van Dylce <& JSmmons, for plaintiff in error.

      J. F. Joy and A. D. Frazer, for defendants in error.

      Soe case of Morgan vs. Butterfield, decided January term, 1854, in next Vol.

   By the Court, Douglass, J.

On the 23d day of July, 1848, Atkinson & Godfrey, the plaintiffs below, having a claim for work and labor done, and materials furnished in building the steamer Globe, which was a specific lien upon the boat, enforceable at any time by complaint and attachment under the boat and vessel law, (R. S., 1846, Ch. 22,) for a valuable consideration, agreed with Robinson, the master and owner of the boat, that they would not proceed to enforce such lien until the end of September then next. But on the 18th of August of that year, they made complaint and sued out attachment, by virtue of which, the boat was seized, in violation of their agreement. The present action is against the obligors of the bond, given to release the boat from this attachment, and may be regarded as a continuation of the original proceeding. The plaintifis in error, who were defendants in the Court below, insist that the agreement is a bar to this action. It is admitted that it is a good answer to ^this suit upon the bond, if it might have been set up in bar of the original suit, had it proceeded to trial without any bond being given. So that the simple question presented for our consideration, is whether a valid promise, not to assert a particular remedy for a specified time, will bar an action brought before the time expires.

Were this question res integra, we imagine no Coiu-t would long hesitate as to how it should be determined. It seems to us very clear, upon principle, that whenever a creditor agrees with his debtor, upon good consideration, that he will never or not for a specified time, pursue against him, either any or all- of tho remedies which the law gives for the enforcement of a particular demand, tho agreement is not collateral to the original contract of indebtment, giving merely a claim for damages in case of its breach, but operates directly upon the contract, and as the case may be, destroys or modifies the legal rights and obligations which grow out of it. The-right of the creditor is simply, a right by means of established legal remedies, to recover such damages as the law gives, for breach of the contract. The co-relative obligation of the debtor is what the law, through the instrumentality of these remedies, will oblige him to pay or perform. The law applied to the contract, is the measure of each. (McCracken vs. Hayward, 2 How. R., 612, 613.) An agreement never to -sue, annihilates both. In legal sense, it destroys the contract. It leaves remaining but tho naked duty of the debtor, to which no right corresponds, and of which the law enforcing obligations only, takes no cognizance. As to the debtor with whom it is made, it extinguishes the debt, though not as to others who may also be collaterally liable for it. (Story on Bills, § 409.) It is therefore in effect, a release, and it has always been pleadable in bar as a release. (2 Bac. Abr., 614; Bouv. Ed., 8 Ib., 248, and cases there cited.) As the rights and obligations growing out of a contract of indebtment are thus extinguished by an agreement never to sue, so, and for the same reason, they are modified by an agreement not to sue for a limited time. Such an agreement, if the intent of the parties is carried into effect, extinguishes the right of the creditor to enforce, and the obligation of the debtor to make payment, until the - time limited expires.. It is, therefore, an extension of the time of payment or performance of the contract — a giving time to the debtor. Between an agreement to give time and an agreement not to sue for a limited time, we can perceive no difference, except in the language used by the parties to. express their intentions. Throughout the books they are treated as identical, and each is described by language, which as well, and oftentimes better, denotes the other. Thus they are both constantly spoken of as agreements for delay, for forbearance, for indulgence; and agreements to stay legal proceedings which have been commenced, as judgment, execution, and the like, are constantly spoken of as agreements, to give time to the debtor.

Now as the parties intend the same thing in both cases, and it is theimdoubted duty of the Court to carry out that intention, unless it violates some rule of law or public policy, it seems absurd to say that the-one is collateral to the contract of indebtment and the other is not;, that the one modifies the rights and obligations growing out of it, and the other does not; that the one being in form an agreement to extend time, suspends the remedy until the time expires; the other, being in form an agreement not to sue, does not suspend the right of action for an hour. And yet this we must say, if we adopt the rule contended for by the plaintiffs below; for few principles of the law are better settled than that an agreement to extend the credit, does suspend the right to sue until the credit has expired. Numerous authorities show that an agreement not to sue has the same effect. There is a very numerous class of cases which go to establish the well settled doctrine that an agreement for forbearance between the creditor and the principal debtor-releases the surety, if made without his assent. They all go upon the ground that such agreements modify the original contract of the parties and import a suspension of the rights of the creditor during the stipulated period of delay. It is said that if the surety was still held liable-he would he bound by a different contract from that which he entered into. (Story on Bills, § 418, 414.) Such agreements in most of the cases have been in form extensions of time, hut it may be observed that throughout all the discussions on this subject, it has been constantly assumed, both by Courts and counsel, that agreements not to sue, were of the same nature, and would equally suspend the remedy. To these we need not particularly refer, although they fernish strong evidence of the law on this subject; nor need we refer to those cases where, after suit commenced, there has been an agreement to stay proceedings, such as judgment, execution, &e., which has always been held to bind the creditor and therefore release the surety. Since these, C.. J. Shaw, in Fullam vs. Valentine, (11 Pick., 160,) distinguishes on the ground that such agreements are enforceable by the Court, under the general authority it has by the dommon law to regulate and order the comse of proceedings in all cases before it, with a view to secure to all parties their just rights. The Bank of the United States vs. Hatch, (6 Peters, 250,) is more nearly in point. This was an action against the indorser of a bill of exchange. It appeared that the Bank had previously brought a suit against the drawer, which had been continued beyond the term at which judgment might have been obtained, under an agreement with the drawer founded upon a valid consideration. Justice Story, in delivering the opinion, construes the agreement to bean undertaking by the bank, to surcease all legal proceedings not only in that, but in any other suit against the drawer, and therefore held that it released the indorser. In the course of his remarks, he says: “ If' the bank had engaged for a like consideration not to sue the drawer on the bill for the same périod, there could have been no doubt that it would be a contract suspending all remedy.” (See McLechmere vs. Powell, 12 Wheat. R., 554.) In Hubbly vs. Brown, (16 Johns., 70,) an agreement “to wait ninety days longer without sueing,” was held to suspend the remedy and therefore release the surety. It may be said that it is not necessary that the agreement should suspend the right of action in order to release the surety, but however this may be, it is certain that beyond the State of Massachusetts, nearly all the cases have gone upon this ground expressly.

There are other cases whore similar agreements have been set up in defense by the very person with whom they were made. In Tatlock vs. Smith, (19 Eng. C. L. R., 94,) an undertaking not to sue until certain acts were done, was implied from an agreement between insolvent debtors and their creditors, and was held to bar an action brought by one of the creditors before the acts were done. Stracy vs. The Bank of England, (Ib., 232,) is also a case where an implied agreement not ■to sue until a certain act was done by the plaintiff, was held a good bar to the action. Tindal, C. J., in delivering the opinion, says: “It is urged by the plaintiffs that if this is an agreement on their part, it may be the ground of an action by the bank to recover damages, but that it is no bar to the present action. But the agreement is not set up as a perpetual bar; it is merely insisted on as an objection to the action being brought at the present time. It is urged as an agreement by which the plaintiffs have, for a good consideration, restrained themselves from sueing, not perpetually, but only until they have done a particular act.” (See also Allis vs. Probyn, 2 Cromp., Mees. & Ros., 408.) These cases seem to establish the proposition that agreements not to sue, and in the same manner, agreements to extend the credit, operate directly upon the rights and obligations of the parties to the contract, and as the case may be, destroy or suspend the remedy. Indeed it seems to us that the opposite viow contended for, makes a distinction where none exists, violates all legal analogies, frustrates the real intent of the parties, and must, (we do not say in this, but in a vast majority of cases,) make the Court an instrument of manifest wrong and injustice.

Satisfied as we are, however, of the correctness of the views we have above expressed, we are compelled to admit that there is a train of decisions with which they are in direct conflict, and no one of which, so far as we know, has been directly and expressly overruled. These have received our attentive consideration. The origin of the doctrine they establish is somewhat peculiar. It seems that it was anciently a maxim of the English Courts, that where the remedy was once suspended by act of the party, it was gone forever. This maxim, if it did not originate with, was at least formerly made the ground and reason of the doctrine, that if the obligor made the obligee his executor, or if a man married his debtor, it was in either case, a release of the debt. (Plowd, 8 Coke R., 136; 1 Salk., 299; Cr. Chas., 373; 2 Will, on Ex., 1124.) And it was also applied to explain other analogous eases, where by the concurrence of the right and obligation in the same legal person, there was an extinguishment of the debt. (Dyer, 140, a.) Except in this class of cases, I cannot find that it was ever applied, though it may have been. At all events a mere glance at the authorities referred to, will show that it never acquired the dignity of a consistently applied legal principle. But by being thus applied where it worked no injustice, and was merely the wrong reason for correct decisions, it acquired a degree of authority to which it was by no means entitled. At length in Deux vs. Jeffries, (Cr. Eliz., 352,) decided in 1594, a debtor being sued upon his bond, pleaded that the plaintiff; by indenture, &c., did covenant that he would not sue the bond before Michaelmas. It would seem that the action had not been commenced until after Michaelmas. The plea was not put in as a mere suspension of the action, but it was claimed that the facts alleged showed a release in law of the debt, upon .the principle that the remedy having been once suspended by the act of the plaintiff, was gone forever. The Court yielding an unquestioning deference to authority of the principle relied on, without distinguishing the cases where it had been applied, from that under consideration, escaped the evident injustice of its application, by a most unnatural construction of the covenant. They said it could not have been the intention of the parties to make it a release; and therefore to avoid giving it such effect, they held that it would not even suspend the remedy until . Michaelmas, but merely gave the party a claim in damages, in case of its breach. This case, although it merely determined that a temporary covenant not to sue, was not a release, opened the way for the direct adjudication in Aylofe vs. Schrimpshire, decided nearly a century later, that such a covenant does not even suspend the right to sue, until the time specified has expired. The latter case is reported in (2 Salk., 573,) as follows: “In debt on bond for £100, the defendant pleaded a covenant since made by the plaintiff, whereby he covenanted not to sue for the said debt upon the said bond, for and during the term of 99 years.”' This was held naught upon demurrer, for it is a “ mere covenant and does not enure as a release or defeasance, and so cannot be pleaded in bar.” The Court thus assuming, as it did in Deux vs. Jeffries, to which they refer, that if an action was once suspended by the act of the party, it was gone forever; and that therefore if construed to suspend the action temporarily, the covenant must operate as a release.

Thus, it would seem from the early cases, that the rule that a temporary covenant would not suspend the remedy, originated in the supposed principle that a personal action once suspended, is gone forever. Although it was admitted to be the intention of the parties to suspend the action, and although this intention was expressed in words, yet, as it was supposed that the consequence of giving effect to this intention, would be to destroy another more important object, the validity of an instrument not designed to be destroyed, the covenant was not allowed to constitute even a temporary bar, but the party injured by its breach was left to his remedy-by a cross action upon it. (Per Marshall J. in Garnett vs. Macon, 2 Brock. R., 222.)

Now if there ever was such a principle of law as that assumed by these early cases, and which controlled their determination, (and we have before said we think the early reports show that there was not,) it certainly has long since become obsolete. The rule of Ayloffe vs. Schrimpshire should have died with it. But with that tenacity of life which characterizes some of the doctrines of the common law, it has survived to our(day, and is still a rule of decision in some judicial tribunals. It passed into the early digests and elementary treatises as established law.^(2 W. Saund., 48; 2 Bac. Abr., 614; 8 Ib., 248.) ' One other English case, and that of recent date, has been determined expressly upon(the authority of this ancient decision. „(Thimbleby vs. Barron, 3 Mees. & Wels., 210.) It was made, although we think unnecessarily, one ground (of the decision in Chandler vs. Herrick, (15 Johns., 129,) and wasjexpressly adopted and applied by the Supreme Court of New York, Maroy, J. delivering the opinion, in Winans vs. Huston. (6 Wend., 471.) The rule was adopted in one very early case in New Jersey. (Hofman vs. Brown, 1 Halst. R., 429.) In Cloppers Adm. vs. Union Bank of Maryland, (7 H. & J., 93, 103,) it seems to have been considered applicable in covenant, but not in assumpsit. Except the cases mentioned, we have been referred to none in point, beyond the State of Massachusetts. The Supreme Court of that State adopted the rule to its full extent in Perkins vs. Gilman, (8 Pick., 229,) and re-affirmed it in Fullam vs. Valentine, (11 Ib., 156,) although in the last case, we think the decision can clearly be sustained on other grounds. (See also Foster vs. Purdy, 5 Met., 442.) In so doing it is worthy of remark, that they have but been perfectly consistent with other early decisions of the same Court, establishing a doctrine which certainly is not generally recognized as law elsewhere — namely: that an agreement to extend the time of payment of a note is collateral, and will not bar an action brought within the-time specified. (Central Bank vs. Willard, 17 Pick., 150; Allen vs. Kimball, 23 Ib., 473.) The cases last referred to seem, however, to have been overruled by the recent case of Greely vs. Dow, (2 Met., 176,) which, in view of the principle upon which it rests, greatly weakens the authority of Perkins vs. Gilman and Fullam vs. Valentine, in the very Court by which they were originally decided. From the latter cases, and also from ' Winans vs. Huston, in New York, and Thimbleby vs. Barron, in the English Exchequer, although they are all of modern date, we feel compelled to dissent, by a firm conviction that they have inadvertently followed the ancient case of Ayloffe vs. Schrimpshire, that the doctrine they established, originated in a palpable error, that it is unsound in principle, is at war with Tatlock vs. Smith and Stracy vs. The Bank of England, in the King’s Bench, and with the reasoning and the spirit of ■'the whole course of decisions with regard to the nature of agreements for indulgence, and then- effect upon the rights of sureties. The judgment of the Court below must therefore be reversed with costs. ■


source: Caselaw Access Project

license: Public Domain

text:
    Smith vs. The People.
    Before the credit of a witness can be impeached by proof of statements elsewhere, relevant to the matter in issue, at variance with Ms testimony, he must be first inquired of, as to such statements, and the time, place, and person involved in the supposed contradiction.

      “Where the witness neither admits nor denies having made the statement conflicting with his testimony, on the trial, but merely sayg^he does not recollect having done so, his credit may still be impeached by showing that he did make the conflicting statement.
    “Where a witness was asked on cross examination, whether wliile ho was in jail, he had not made a certain statement to M. B., and other persons named, to which he replied, that ” he did not recollect having made such a statement to B., or any other person, while in jail;” that “ if he did it was false;” that “ he was very careful what he did say to them in jail;’* It was held competent to prove the making of the statement imputed to witness, to discredit his testimony.
    Error to Washtenaw Circuit

      O. Hawkins, for plaintiff in error.

      Wm. Hale, Attorney General, for the people.

      This is believed to be the rule id every State in the Union, where the question has been raised, except Massachusetts and Maine, (20 Ohio R., 87, and cases there cited,-) and see (17 Mass. R., 161; 32 Maine JR.., 184.)

   By the Court, Douglass, J.

Smith, the plaintiff in error, was tried at the last October term of the Washtenaw Circuit Court, on an indictment which had been found against him, for having in his possession counterfeit hills of a banking company, known as the Wisconsin Fire and Marine Insurance Company. On the trial, one Allen Comstock, who had been indicted and arrested at the same time with the prisoner, for passing counterfeit bills of the kind described in the indictment in this cause, and who had, on pleading guilty, been sentenced to sixty days imprisonment in the Washtenaw county jail, was called as a witness on the part of the prosecution, and after having testified to sundry facts, tending strongly to prove the guilt of the prisoner, was asked on cross examination, whether “he had not stated, while in jail, to Martin Badgero and other persons named, that Smith, the defendant below, was innocent of the charge made against him; that he (Smith) did not know the money was bad; that he sold his watch and got the money.” To which question the witness answered that he “ did not recollect having made such a statement to Badgero, or to any other persons, while in jail; that if he did, it was false; but he did not recollect saying any such thing; that he was very careful what he did say to them in jail.”

In the further progress of the trial, Badgero was called as a witness on the part of the defense, and having testified that he had been in jail with Comstock, was asked by the defendant’s counsel whether, while there, Comstock made to him the statement before referred to. This question was objected to by the prosecuting attorney, on the ground that Comstock, when cross examined on the subject, had not denied having made such statements. The Court sustained the objection. To this decision the defendant below excepted.

We think the Court below should have permitted this question to be answered, although the rule of law on this subject is by no means very well established. The authorities nearly all agree that before the credit of a witness can be impeached by proof that he has made verbal statements, out of Court, and relevant to the matter in issue, contrary to what he has testified at the trial, it is necessary first to ask him as to the time, place and person involved in the supposed contradiction. If the witness admits the statements imputed to him, there is of course no occasion for further evidence on the subject. If he denies them they may be proved by other witnesses. But as to what may be done when the' witness neither admits nor denies having made the statements, but merely says he does not recollect having done so, elementary writers are by no means explicit. (See 1 Green. Ev., § 462, ’3; 1 Ph. Ev. by C. & H., 293; 3 Ib., 774; 1 Starkie Ev., 183; Rose. Cr. Ev., 183; 2 Russ, on Cr., 937.)

In Paine vs. Beeston, (1 Mood. & Rob.,) Tindal, C. J., held at nisi prius, there must be an express denial by the witness of the statements imputed to him, before they can be proved to discredit him. Rut some seven years later, Parke, B., held directly the contrary in Crowley vs. Page, (7 Carr. & P., 787,) and he says, it has always been his practice to admit the evidence where the witness said he did not remember. Prior to the Queen’s Case, (2 Brod. & Bing., 284,) it does not seem to have been well established, that it was necessary to lay any foundation for evidence of previous contradictory statements of the witness, by first interrogating the witnesss peeifically in relation to them. (See Tucker vs. Welch, 17 Mass. R., 161.) The reason assigned for requiring it is, that as the direct tendency of the evidence is to imp'each his veracity, common justice requires that by first calling his attention to the subject, he should have an opportunity to recollect the facts, and, if necessary, to correct the statements already given, as well as by a re-examination to explain the nature, meaning and design of what he is proved elsewhere to have said. (1 Green. Ev., § 462, ’3.) R is essentially a rule of protection to the witness sought to be discredited, and ought not to be extended so far as to become a convenient shield for his iniquity. If he answers that he does not recollect having made the statements imputed to him, they may still be susceptible of such proof as, if received, would make this very answer more effective to discredit him, than the contradictory statements thenrselves. And there is no great hardship, to an honest witness, in allowing the evidence to be gone into after such a reply, for he has an ample opportunity to explain on his re-examination. We do not therefore think it either necessary or safe to require in all cases an express denial. If we do, a witness can never be discredited when he says he does not remember. In this case it is worthy of remark that the answer of the witness leaned rather towards a denial, than an admission of the imputed statements, for he said “he ivas-very careful what he said to them in jail.”

We do not mean to be understood as deciding whether Comstock’s' cross-examination was sufficiently specific as to the time, place and circumstances of the imputed statements, to lay a proper foundation for the evidence offered. The only objection made to its admission was, that Comstock had not denied the statements, and this was the objection which was sustained by the Court below.

New trial awarded.


author: By the Court, Wing, P. J.

text:
    Buckley vs. Lowry.
    An attachment suit has always been considered in tills State a special proceeding, in which the Court exorcises an extraordinary jurisdiction under a special statute, prescribing its course, and not under its general powers. The Court in such cases can act therefore only under the special powers limited by the statute, and according to 'the forms of procedure it prescribes.
    The second section of the act of proceedings against debtors by attachment, (R. S.} 1846, p. 514,) requires that before the writ shall be executed, the plaintiff or some person on liis behalf, shall make and annex thereto an affidavit, stating that the defendant therein, is indebted, &c., &c. Section 4 of the same act provides that no writ shall Ic issued under the provisions of the act, unless the amount stated in the affidavit, as duo the plaintiff, over and above set-offs, shall exceed the sum of one hundred dollars: Held, that the two sections are to be taken together as forming one, and that the affidavit required, must be madq^ind exbibitedto the Clerk, before he lias power to issue the writ, and that when made, it must be attacked to the writ before the writ can be executed.
    "The writ in an attachment case bore date and was sent to the plaintiff ten days before the affidavit, afterwards annexed to the writ, was made: Held, that the writ was void.
    Case reserved from Calhoun Circuit.

      J. Van Arman, for plaintiff.

      G. E. Stuart, for defendant.
   By the Court, Wing, P. J.

This action was commenced in the County Court for the county of Calhoun, and was/removed to the Circuit Court for said county by certiorari, and the Circuit Judge reserved the questions of law arising upon the facts, for the opinion of this Court.

The writ of attachment is tested on the 10th day of March, A. D. 1849. The affidavit attached to the writ, was, as appears by the jurat, sworn to on the 19th day of the same month. It appears that the affidavit was attached to the writ on the same day; after which, the writ and affidavit so attached, were delivered to the sheriff. On the 21st day of March the sheriff returned the writ, with an indorsement thereon of his proceedings. On the 22d day of March, the plaintiff and defendant appeared in the County Court, and the attorney for the defendant moved the Court to quash the writ and set aside all subsequent proceedings, on the ground,

1. That the writ was improperly issued in blank, by the Clerk of the Court; not showing when it issued, either the name of the peison making the affidavit, the cause of action, or the ground on which it issued; nor the grounds of the plaintiff’s application therefor.

2. The affidavit was not made when, nor until long after, the writ was issued, and was not entitled in any cause.

At the argument of the cause in this Court it was insisted by the attorney for the plaintiff, £that the writ was not issued until it was placed in the hands of the sheriff; that though the writ was -signed and the seal of the Court attached to it, and it was mailed at .Marshall and directed to the plaintiff in Battle Creek, on the 10th day of March, yet that it was not actually issued until the 19 th day of March, on which day an affidavit was made and attached to it, the writ filled up and delivered to the sheriff to be executed, and that in filling up the writ, the plaintiff or his attorney acted as and for the clerk

We are aware that the practice has long existed of procuring blank writs from the clerk to be used by attorneys as occasion required, in commencing suits in the Circuit Court, but this practice never obtained in cases of attachment. All our attachment laws, previous to the one in question, contemplated that the writ should be filled up and perfected when it passed from the hands of the clerk. The act of 1838, (R. S., 1838, p. 506, secs. 1 and 2,) required an affidavit to be filed with the clerk before the writ could be issued. Under that statute the question arose as to what should be considered the commencement of the action. The Court held it was commenced by the issuing of the Writ. (Galloway vs. Holmes, 1 Doug. R., 350.) And under that statute the writ was made out by the clerk, and issued by him immediately upon the filing of the affidavit.

This has always been considered and treated in this State as a special proceeding. The Revised Statutes of 1838 treated it as such, (R. S., 1838, p. 418, sec. 2,) and it has been repeatedly decided in this Court, that in summary or special proceedings, where the Court exercises an extraordinary jurisdiction under a special statute which prescribes its course, that course ought to be strictly pwrsued. They do not derive their efficacy from the general powers of the Court. The Court can act only under the special limited powers granted by the statute, and according to its forms of procedure. (Greenvault vs. Farmers’ and Mechanics’ Banlc, 2 Doug. R., 502.) In the case cited, the Court held that the proceeding in attachment being special, and in derogation of common law, a failure to file an affidavit previous to the emanation of the writ rendered the whole proceeding void. That it was a question of jurisdiction.

Is there any material change made in the law relating to attachments, by the law of 1846. The second section of that act provides that before any such writ of attachment shall be executed, the plaintiff, or some one in his behalf, shall make and annex thereto an affidavit, stating that the defendant therein is indebted to the plaintiff, and specifying the amount of such indebtedness, as near as may be, &c., &c. By section 4 it is provided that no writ of attachment shall be issued under the provisions of the chapter, unless the amount stated in such affidavit, as due to the plaintiff, &e., shall exceed the sum of one hundred dollars.

It is manifest, these two sections are to be taken together, and as one, for both of them prescribe matters to be stated in the affidavit; and unless it appears from the affidavit that the sum exceeds one hundred dollars, no writ can issue. The importance of it is this: it is addressed to the judgment of the clerk, and before he can act, he must have the requisite proof or showing to enable him to determine whether it is a case in which he is authorized to act. It is urged that the second section is not conclusive of this matter; for if the writ may be issued or placed in the hands of an attorney in blank, he must see to it that the affidavit which is made, contains the requisite specification as to amount, and that it is attached to the writ before it is executed. But we cannot look upon this section as being susceptible of any such construction. The proceeding is in many cases a harsh one, and being in derogation of the common law, and a veiy special one, it would hardly be proper to vest any discretion in a creditor, which the law does not clearly contemplate and fully authorize. Again, it is said no harm can result from the construction claimed for the two sections. No harm perhaps could have resulted under the law of 1838, from permitting the affidavit to be filed after the writ issued. It was deemed enough to say in the cases arising under that act, that the law required the affidavit to be made and filed, as the foundation of • proceedings, to acquire jurisdiction. So in this case, if we construe the two sections together, and hold, as we do, that the affidavit should have been made and exhibited to the clerk before he had any power to act — and if after it was so exhibited, it was attached to the writ when made, and before the writ was executed, all the provisions of the two sections will be harmonized; and without such construction, and if we should say it was sufficient to attach the affidavit to the writ after it was issued by the clerk, it would disregard the provisions of section 4.

There is another objection to this proceeding which we deem fatal to its validity, and that, is noticed in the second objection. The affidavit was not made until some nine days after the writ was sent to the plaintiff, bearing date the 10 th of March. If the time of issuing the attachment should be considered tobe the day when it was actually placed in the hands- of the sheriff, what would be the effect upon an action where the right of action did not accrue until the day before the affidavit was made. The writ would bear date nine days before the debt fell due, and no intendment could save the case. But the fact that the affidavit was made after the writ, from its face, appears to have been made, shows that the debt was not due when the writ bore date. In the case of Drew vs. Dequindre, it was held that a writ which bore date and was issued two days after the affidavit was made was irregular, for the reasons stated in the opinion of the Court. In this latter case, and in all cases under the attachment law, the parties have been held to an exact compliance with the statute. We are of the opinion that the writ, having been issued before the affidavit was made, was void.,

Let it be certified to the Circuit Court for the county of Calhoun, as the opinion of this Court, that the writ of attachment was issued without authority of law — that it was a prerequisite that the affidavit of the party, his agent, or attorney seeking the wrif^ should have been first made and exhibited to the clerk, before the writ could be legally issued, and that as this was not done in this case, the writ is void.


author: By the Court, Johnson, J.

text:
    The People vs. Reynolds, impleaded, &c.

    An indictment under Section 20, Chapter 154, R. S., 1846, for aiding in the concealment of any articles, money, goods, or property, knowing the same to be stolen, is supported by
    , proof of acts of the aider, which will assist the principal felon in converting it to the use of the thief, or which will aid him in preventing its recovery by the owner, and it is not necessary to prove that the property was actually hidden or secreted anywhere.
    The statute of this State in relation to receivers, &c., of stolen property, has enlarged the common law offense of receiving stolen property, knowing the same to be stolen, by making persons who shall aid the principal felon in the concealment ©f the property, equally guilty with him who receives such property.
    ■Where the charge of the Court contains an abstract proposition of law, having no particular reference to the evidence submitted, it will be presumed, although the language is general, that the jury properly applied it to the case before them.
    Case on bill of exceptions from Kalamazoo County Court.

      J. Miller, Jr., for the people.
    ---, for defendant.
   By the Court, Johnson, J.

This cause comes into this Court on bill of exceptions from the Kalamazoo County Court.

There are two counts in the indictment — one for receiving stolen property, knowing the same to have been stolen, &c. — the other for aiding in the concealment of property, with like knowledge.

Both counts were framed under section twenty, of chapter one hundred and fifty-four of the revised statutes of 1846, which is in the following language: “Every person who shall buy, receive, or aid in the concealment of any stolen money, goods, or property, knowing the same to have been stolen, shall be punished,” &c.

On the trial of the cause the Judge charged the jury, among other things, “ that concealment of stolen property, knowing, <fcc., may be supported by acts of the aider, which will assist the principal felon in converting it to the use of the thief, or which will aid him in preventing its recovery by the owner, -and that it is not necessary to prove that the property was actually hid or secreted anywhere.”

Exceptions were taken to this charge by the defendant, and we are to determine whether such exceptions were well taken. It is the only question the case presents.

At common law it was a misdemeanor only to receive stolen property, knowing the same to have been stolen. . By the V and 8 Geo. 4, Ch. 29, § 2, it was made felony, when the original taking was felony. (2 Miss, on Cr., 237.) Our statute has enlarged this common law offense, by making persons who shall aid the principal felon in the concealment of the property stolen, equally guilty with him who shall receive such property.

This was the object of the statute, and was intended to embrace a class of offenses which could not have been reached by the common law; for important aid and assistance could have been rendered to the principal felon in enabling him to conceal the stolen property, without having been the receiver, so as to have subjected him to a prosecution on that account, or without having rendered such aid or assistance to the felon himself, as to have made him an accessory after the fact.

It is the last clause of the statute above recited, then, which enlarges this common law offense, viz: “ aid in the concealment off and we are called upon to give it a construction; for upon its construction depends in a measure the pertinency and application of the charge. If we narrow down the word concealment,” as equivalent to or synonymous with the words hide or secrete, then the charge was too general in its terms. But if we give it a more enlarged sense, and one that comports with its literal signification, we shall find the charge to have been correct; and further, we shall' carry out the evident intention of the Legislature, by making the remedy commensurate with the evil.

The evil intended to be guarded against by the enactment of that law was, to prevent persons from rendering important, efficient services to a felon, in aiding him in the concealment of stolen property; and that aid must he deemed quite as important and efficient, which would enable the principal felon to convert the stolen property to his own use, or which would enable him to remove the property beyond the reach of the owner, and thereby prevent its recaption, as if he had effected the same object by aiding and assisting him in depositing it in some place of secrecy. The same public and private evil would result and the same moral guilt exist in the one case as in the other. And what is more, he would as effectually conceal the property from the owner, the person injured, and the one most likely to be instrumental in bringing him to punishment, in the former case, as in the latter.

Any disposition of the property which would have a tendency to conceal it from the observation of the owner, is within the meaning of this law, and it cannot be presumed that the thief could convert the stolen property to his own use, without using means to conceal it from the owner; therefore, it will follow that the charge of concealment may be well sustained by evidence, tending to show that the defendant aided the thief in converting the stolen property to his own use.

But if there can be any doubt entertained about the correctness of the constraction we have given to this statute, there is another view of the case leading to the same result, and which must be deemed conclusive, in this case. The charge was an abstract proposition of law, having no particular relevancy to the evidence submitted to the jury, and we will presume, although the language was general, that the jury prop-, erly applied it to the case before them, and that the defendant had no just cause of complaint.

In either view of the case, we must hold the exceptions not well taken.


text:
    Middlesworth et al. vs. Nixon et al.

    Complainants, as executors, filed a bill to foreclose a mortgage to their testator, describing themselves at the commencement of the bill, as executors of the last will and testament of the testator, and nowhere setting out his death, or their representative character, and making no allusion to the probate of the will: Held, that the bill showed no right of action in the complainants, on which to base a decree.
    In an action by executors, it is not competent for the plaintiffs or complainants to prove their office by general reputation. • '
    Appeal from the Circuit Court for the county of Genesee, in Chancery.

      M. Wisner, for appellants.

      T. J. Drake, for appellees.
   By the Court, Wing, P. J.

This case is substantially as follows:

The defendants, or some of them, executed notes and a mortgage, to John Middlesworth. After the notes fell due, this bill was filed by complainants to foreclose the mortgage. In the commencement of the bill the complainants describe themselves as follows: “ Yow orators, Isaac It. Middlesworth, and James Middlesworth, of Argentine, Genesee cov/nty, Michigan, executors of the last will of John Middlesworth, late of Argentine, in said county of Genesee,” &e. This is all the statement to be found, which sets up the right or interest of the complainants, in the note or mortgage, or their right to file a bill for the foreclosure of the mortgage. It is not stated in the stating part of the hill that the mortgagee is dead; that complainants have been appointed executors of his last wffl and testament, or that they have any interest in the mortgage. There is no legal proof in relation to the rights of complainants, and the point made before this Court is, that the complainants are not entitled to the decree of foreclosure, which was granted by the Circuit Judge, as they have not in their bill, stated'their interest in the notes and mortgage.

The answer of defendants does not question the right of complainants to file the bill, but seeks to defeat their right tó a foreclosure, upon the ground that certain agreements had been made between the original parties to the note which should prevent a decree being made against them. The execution of the notes and. mortgage was admitted, and proof was taken in support of the defense; but the Circuit Judge held that the defense was not sustained, and as the defendants had not demurred to the bill, or in any manner objected to the statement of the claim of complainants, or their right to sue, he would consider the descriptive statement of complainants in the commencement of the bill, as a statement of the fact that John Middlesworth was dead, and that complainants were his legal executors, and that they urged their claim in that capacity, especially after the complainants had been subjected to so great expense in prosecuting then suit.

This Court, however, has not felt authorized to sustain this decree of the Circuit Court, as the stating part of the bill does not present a case upon which to base such a decree; for if all that the complainants have alleged is fully admitted, it shows no right of action. All that the bill contains in relation to the representative character of the complainants, is found in the descriptive portions of it. No proof could be made of facts, or of a cause of action not set forth in the stating part of the bill. No allusion is made to the probate of the will of John Middles-worth — the payee of the notes — and no substantive averment of facts is made, that would authorize proof on this point.

1 Again, if it be admitted that the statement of complainants interest in the notes, or their right to sue, is sufficiently set forth, we think it is not sufficiently proved. The complainants offered to prove by general. reputation, that they were' executors of the last will of John Middles-worth. To this proof the defendants objected; but the Court admitted the proof. It is true, the reason for the objection is not a very sound one; but the objection is nevertheless valid, and the evidence should have been excluded.

It is the judgment of this Court that the decree of the Circuit Court be reversed with costs, and that the case be remitted to the Circuit Court for further proceedings.


author: By the Court, Martin, J.

text:
    Swan vs. Williams et al.

    The act to incorporate the Pontiac Railroad Company, approved March 7,1834, in so far as it authorizes the appropriation of private property for the purposes contemplated in the act, without the consent of the owner, is not repugnant to the Constitution of the IT. S., or the Ordinance of 1787.
    The power of the Territorial Legislature to charter the Pontiac Railroad Company, is derived-from the provisions of the Ordinance of 1787, and the act of Congress for the government of the Territory of Michigan, of March 3d 1823, giving authority “to make laws in all cases, for the good government of the District, not repugnant to the principles and articles in said Ordinance established and decreed.”
    The clause in the compact of the Ordinance of 1787, that no man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land, and that should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular service, full compensation should be made for the same, was not designed to restrict legislative or judicial authority, but rather to
    . limit and confine the power oyer persons and property to those authorities.
    The Territorial Legislature possessed the power to appropriate private property for public use, on securing proper compensation; and could lawfully authorize a railroad corporation to take such property for such use.
    Property of individuals taken by railroad corporations for the purpose of constructing their roads, is in legal contemplation, taken, not for private use, but forpublic purposes; and the power of government to delegate the exercise of the eminent domain to effectuate such purpose, from the universality of its exercise, is no longer an open question.
    The tenure of railroad corporations in the lands taken for the construction of their roads, is in the nature of a trust for public use, subject to the supervision of the government.
    Although railroad corporations receive tolls, as compensation for the carriage of persons and property over their roads, they are not therefore to be considered private corporations, the purpose designed by government in these roads, being the use of the public, and net revenue.
    It is no objection to the constitutionality of the charter of the Pontiac Railroad Company, that it does not provide for notice to the owners of lands,' of proceedings to assess the damages for taking the same.

      Case reserved, from Oakland Circuit, on motion for a new trial.
    Action, trespass quare clauswn fregit; the alleged trespasses consisted in running the cars of the Detroit and Pontiac Railroad Company, &c., over the plaintiffs close, by defendants. Plea, general issue, and notice of special matters, viz: that in pursuance of the act to incorporate said Company, approved March 7, 1834, said Company before the committing of the said supposed trespasses, entered into a negotiation with plaintiff, for the purchase of him of so much of the close in question, and-of so much of the earth, &c., as should be necessary for the location, construction, occupation, &c., of the said Company’s railroad, but that said Company and the plaintiff could not agree upon the price for said land; whereupon, the said Company afterwards, in pursuance of the provisions of the act aforesaid, applied to a justice of the peace of the county, &c., who issued his warrant to the sheriff, commanding him to summon a jury, &c., and by which said jury, the plaintiffs damages, which he had sustained by reason of the use and occupation of said land by said Company, mentioned in plaintiff’s declaration, were assessed at $227, which said inquisition reduced to writing, sealed, &c., was filed in the clerk’s office, of the proper county, and afterwards duly confirmed and recorded, and that the said sum of $227 was afterwards tendered by said Company to the plaintiff; whereupon, said Company entered upon so much of the close in question as was necessary for the construction of their road, and have built and constructed the same, and have ever since used the same, and that the defendants entered into and upon the said close, in the plaintiffs declaration mentioned, as the agents and servants of the said Company, and by their command, doing no unnecessary injury, and which is the same trespass, &e.
    After the plaintiff had closed the testimony on his part, the defendants introduced an act entitled “An act to incorporate the Detroit and Pontiac Railroad Company,” approved March 7th, 1834, and the several acts of the Legislature of this State passed since the year 1837, recognizing the existence of the Company, and conferring privileges and powers upon it. The defendants also showed acts of user, and that the railroad was completed and in operation between Detroit and Pontiac.
    The defendants then offered to introduce as evidence, under the plea and.notice, the files and records of the Oakland Circuit Court, showing an inquisition of damages, and a confirmation thereof by the Court, and a tender of said damages, under the aforesaid act of March 7th, 1834, which evidence was objected to upon the ground, among others, that the said act of incorporation is unconstitutional and void, and that there is no allegation in the notice that the costs of the inquisition were paid or tendered to the plaintiff.
    . The objection was sustained, and the defendants excepted.
    The defendants then moved for leave to amend their notice, so as to state the fact that the costs of the inquisition were paid; which motion • was overruled by the Court, and the defendants excepted.
    The defendants, for the above and other reasons, moved for a new-trial in this cause, which motion was argued by counsel on both sides; and the Presiding Judge, without deciding said motion, reserved the questions of law raised upon the argument thereof, for the decision of this Corut.

      D. Goodwin, for plaintiff.

      J. V. Campbell, for defendants.
   By the Court, Martin, J.

The most important question presented by this case, respects the constitutionality of the act of incorporation of the Detroit and Pontiac Railroad Company, in so far as it authorizes the appropriation of private property for the puiposes contemplated in the act, without the consent of the owner. It is contended that the act is in this particular, in violation of the Constitution of the United States, and of the Ordinance of 1787.

The abstract question of the right of the Territorial Legislature of Michigan to create this corporation, is not raised; but it is contended that the act is in violation of the Ordinance, as the talcing of the property was not upon any public exigency,- nor for the common preservation; and that it is in violation of both the Constitution and Ordinance, because, 1st. The property is not taken for public use; 2d. Because the property when taken is, not used by the public, but by the corporators, for their own profit and advantage; 3d. Because the charter does not secure to the pmblic any right to use the road, or to require it to be used for its benefit; and lastly, because no provision is made in it^ for notice to the owner, of the proceedings to assess the damages for the appropriation of his property, that he may participate in them.

The act of incorporation was passed by the Legislature of the Territory of Michigan, in the month of March, 1834, and in 1836 Michigan became a State. In the year 1839 the act complained of as a trespass, was committed by the defendants. Among the several acts passed by the Legislature of the State, recognizing this Company, we find one, entitled “an act to provide for the relief of the Detroit and Pontiac Railroad Company,” approved March S, 1838, by which it was provided that if the said road was not completed on or before the first day of May, 1839, the charter of said Company should become forfeited, and the said road and appurtenances, and all and singular, the rights, interests, and franchises of said Company should belong to and be the property of this State; and on the 20th of April, 1839, another act was passed, extending the time for the completion of said road until the first day of February, 1840.

We are not advised at what time in the year 1839, the property of the complainant was taken; hut it becomes a grave question'whether it was not so taken under the sanction of the State, rather than of the Territorial authority. But irrespective of this question, let us consider “the objections urged by the pfiaintiff to the validity of this act.

1. Is it in violation of the Ordinance of W8^, as taking property ■upon no “public exigency,” nor for the “common preservation?”

We do not propose to enter upon an extended examination of the • operation and objects of this Ordinance, and of the powers conferred by it upon the Legislatures of the Territories, created under its provisions. It is and ever has been regarded as the organic law, or constitution of ■such Territories — declaring and guarantying the rights of the citizens— providing for the formation and organization of Territorial governments, ■and delegating to such governments full powers of local legislation, after the acquisition of a sufficient population, to authorize the organization of legislative assemblies. It must not be understood that no restraints . were, in our view, imposed upon the Legislatures; but that such were rather in the nature of constitutional restraints, than of a reservation of power in the general government, perfectly consistent with every exercise of sovereignty compatible with republican institutions, and such as the people, in the erection of every State of this Union, have imposed upon legislative authority. Among the powers incident to all governments, and necessary to their efficiency and preservation, are those of organizing towns and counties, constructing roads and bridges, and other highways, and assessing and collecting- taxes; and it cannot be contended for a moment, that the silence of the Ordinance in any of these particulars, would argue a want of power in the Territorial Legislatures, to exercise them as the public good or necessities might require.

Effective Territorial governments were as fully in view of the framers of the Ordinance, as effective State governments which were to succeed them; and the restraints imposed upon the Territorial Legislatures, were upon their form and constitution, rather than upon their general powers and jurisdiction. The authority to make laws for the good government of the Territory, not repugnant to the principles and articles of the Ordinance, was expressly delegated. The term “good government,” embraces within its scope, the whole range of legislation necessary to secure the comfort, prosperity, and happiness of a people; and the authority could not be exercised, except as the usual attributes of sovereignty were lodged in the territorial governments. Among these, is the right to take private property for public use, whenever the public necessities or convenience demand it. “ In every political sovereign community,” says Judge Daniell, (6 Howard, 531,) “there inheres necessarily the right and the duty of guarding its own existence and of protecting and promoting the interests and welfare of the community at large. This power and this duty are to be exercised, not only in the highest acts of sovereignty and in the external relations of government; they reach and comprehend likewise the interior polity and relations of social life, which should be regulated with reference to the advantage of the whole society. This power, denominated the eminent domain of the State is, as its name imports, paramount to all private rights vested under the government, and these last are, by necessary implication, held in subordination to this power, and must yield in every instance to its proper exercise.” And again, (75., p. 533,) he says: “The instances of the exertion of this power in some mode or other, from the very foundation of civil government, have been so numerous and familiar, that it seems somewhat strange, at this day, to raise a doubt or question concerning it. In fact, the whole policy of this country relative to roads, mills, bridges and canals, rests upon this single power, under which lands have always been condemned; and without the exertion of this power, not one of the improvements just mentioned, could be constructed.” Chancellor Walworth, in (3 Paige R., 73,) says this right, denominated thEminent domain, “is the highest and most exact idea of property, and remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have a right to resume the possession of the property in the manner directed by the constitution and laws of the State, whenever the public interest requires it. This right of resumption may be exercised, not only when the safety, but also when the interests, or even the expediency of the State, is concerned.”

Such then, being the nature of the powers delegated by the General Government to the Territory, the only questions remaining, are, whether the exercise of this right was restrained, and how far restrained, by the Ordinance.

In the second of the articles of compact, it is among other things, provided that “no man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land; and should the public exigencies make it necessary for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be made for the same.” This provision was evidently framed with á jealous eye to arbitrary executive power, and was not designed to restrict judicial or legislative axxthority, but rather to limit and confine the power over persons and property, to them. The same provisions are, virtually, incorporated into every bill of rights and constitution within this Union; and yet, no one will contend that they prohibit the exercise of the right of eminent domain. In all, this right is recognized and restrained. Other provisions of the same articles restrict the judicial and legislative powers. In the provision that no man should be deprived of his property but by the law of the land, reference was either made to the common law, which was then recognized as “the laxv of the land,” or to such legislation as should be had by the Territorial governments. To the common law, most assuredly, the objectors to the exercise of this right of eminent domain, would not resort for arguments against its existence; and we have already shown that this power was lodged in the Territorial governments as an incident of the powers granted to them, and necessary to their exercise. The provision that “should the public exigencies make it necessary for the common preservation to take any person’s property, or to demand his particular services, full compensation should be made for the same,” has reference exclusively to the exercise of extraordinary power by the executive department of the Territorial government, in cases when the pressing emergencies of public danger should require it. The “ property” of an individual, and his “particular services,” are placed in the same category; and upon the occurrence of the necessity for the appropriation of either or both, he is guarantied compensation. It has no reference to the exercise of the ordinary powers of legislation, or of pre-eminent sovereignty, but to the extraordinary exercise of the latter, under circumstances where the exercise of legislative authority would be too tardy for the exigencies of the occasion.

But, secondly, it is contended that this provision of the act of incorporation is in violation of both the Ordinance and the Constitution of the United States:

1st. Because the property is not taken for public use;

2d. Because the property when taken, is not used by the public, but by the corporators, for their'own profit and advantage; and

3d. Because the charter does not secure to the public any right to use the road, or to require it to be used for its benefit.

We will examine these objections as one, for the two last are, in fact, embraced in the first. “A corporation,” says Chief Justice Marshall, (4 Wheat., 636,) “is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it; either expressly or as incidental to its existence. These are such as are supposed best calculated to effect the objects for which it was created.” The more general subdivision of corporations, both in elementary works and reports, has been into public and private corporations, the former embracing generally only municipal or political bodies and the latter all other associations, irrespective of then- character and objects; and in this class are usually comprised turnpike, bridge, canal and railroad companies. Over the former class it is said the Legislature possesses unlimited control, and may alter, modify or repeal them at pleasure — while the latter are regarded as springing from contract between the Government and individuals, over which it is generally said, the Government can exercise no control, so long as the contract is faithfully. observed by the company. Universal as this classification is, it appears to us to have been assented to, rather from a sense of convenience, than of strict propriety, and that much confusion has crept into the authorities from a too strict adherence to this general subdivision. Most certain it is, that as to all their rights, powers, and responsibilities, three grand' classes of corporations exist. 1st. Political or municipal corporations, such as counties, towns, cities and villages, which, from then nature, are subject to the unlimited control of the Legislature; 2d. Those associations which are created for public benefit, and to which the government delegates a portion of its sovereign power, to be exercised for public utility, such as turnpike, bridge, canal, and railroad companies; and 3d. strictly private corporations, where the private interest of the corpora-tors is the primary object of the association, such as banking, insurance, manufacturing and trading companies; and in this class may also be included eleemosynary corporations, generally. Chief Justice Marshall, in McCulloch vs. The State of Maryland, (4 Wheat., 316,) in vindicating the power of Congress to charter a Bank, says; “the power to create a corporation is never used for own sake, but for the purpose of effecting something else.” The object, defines the character of these associations, and by whatever name they may be styled, their rights and liabilities, and in many respects the tenure of their powers and franchises depend upon entirely different considerations, and are derived from an entirely different legislative source.

The object of strictly private corporations is to aggregate the capital, the talents, and the skill of individuals, to foster industry and encourage the arts. Private advantage is the ultimate, as well as the immediate object of theh creation, and such as results to the public is incidental, growing out of the generalbenefits acquired by the application of combined capital, skill, and talent to the pursuits of commerce and of trade, and the necessities and conveniences of the community.

But the object and the origin of that class of corporations represented ' by the defendants in this case, and which might with far more propriety be styled public than private corporations, are of an altogether different nature and character. Their very existence is based upon the delegation to them of the sovereign power to take private property for public use, and upop the continued exercise of that power in the use of the property for the purposes for which it was condemned. They are the means employed to carry into execution a given power. That private property can bo taken by the government from one and bestowed upon , another for private use, will not for a moment be contended, and these corporations can only be sustained upon the assumption that the powers delegated, are to a public agent, to work out a public use. To say, as has been too often carelessly said that “the acts done by these corporations are done with a view to’ their own interests, ■ from which an incidental benefit springs to the public,” is to admit their private character, and the private use of the property condemned to their use. But it is obvious, that the object which determines the character of a corporation is that designed by the legislature, rather than that sought by the company. If that object be primarily the private interest of its members, although an incidental benefit may accrue to the government therefrom, then the corporation is private, but if that object be the public interest, to be secured by the exercise of powers, delegated for that purpose, which would otherwise repose in the State, then, although private interest may be incidentally promoted, the corporation is in its ñatee public — it is essentially the trustee of the government for the promotion of the objects desired — a mere agent, to which authority is delegated to work out the public interest through the means provided by government for that purpose, and broadly distinguishable from one created for the attainment of no public end, and from which no benefit accrues to the community except such as results incidentally, and not necessarily, from its operations. In the creation of this class of corporations, public duties and public interests are involved, and the discharge of those duties, and the attainment of those interests, are the primary objects to be worked out through the powers delegated to them. To secure these, the right of pre-eminent sovereignty is exercised by the condemnation of lairds to then 'use — a right which can never be exercised for private purposes. How, then, can they be regarded as private associations, from the acts of which, an incidental benefit only springs to the public? It argues nothing that compensation is required to be made for property taken, before it can be used, for this is made by the constitution a condition to the exercise of this right by the government itself, and the delegation of the power necessarily carries the incident with it.

, Nor can it be said that the property when taken is not used by the public, but by the corporators for their own profit and advantage. It is unquestionably trae that these enterprises may be, and probably always are, undertaken with a view to private emolument on the part of the corporators, but it is none the less true that the object of the government in creating them is public utility, and that private benefit^ instead of being the occasion of the grant, is .but the reward springing from the service. If this be not the correct view, then we confess we are unable to find any authority in the government to accomplish any work of public utility through any private medium, or by delegated authority; yet all past history tells us that governments have more frequently effected these purposes through the aid of companies and corporations than by their immediate agents, and all experience tells us that this is the most wise and economical method of securing these improvements. The grant to the corporation is in no essential particular different from the employment of commissioners or agents. The difference is in degree rather than in principle, in compensation rather than in power. The fact that the company receives the toll or compensation for the transportation of persons and property over the road is conceived to be a reason, and in fact the prominent reason, why these associations should be considered as private corporations; but the purpose designed by the government in the construction of these roads is the use of the public, the expeditious communication and tfansit from point to point, and not revenue. It would not be contended for a moment that private property could be taken to be used for the latter purpose. The appropriation of the tolls, therefore, can be regarded only as compensation, and affords no basis upon which to construct an argument respecting the character of the company, or the validity of its charter.

It is true, also, that the mode of conveyance and of travel is different upon this road from that upon turnpikes and common highways, but this difference springs from the character and construction of the road) and the vehicles employed, and not in the use designed. The one is equally intended, however, to open good and easy communications, with the other; and so far as travel and the transportation of property is concerned, the public have the same rights in the one case as in the other, with this difference, that the means employed are varied with the mode of travel.

The fact that upon railroads, individuals do not travel or transport property in their own vehicles, furnishes no argument in this particular, from the fact that the nature of the road, as well as the personal safety of individuals, renders it impossible that they should do so. If the right existed, it would not be exercised. Public security requires that the mode of travel and the means employed should be limited within, and subject to, the control of the company, and the Legislature would have but indifferently secured the public interests in extending the privilege to all. Were the road built by the State, and managed by its immediate agents, the same disabilities as to promiscuous use would exist;but would it be contended in such case, that the use was not public? But the act before us secures in its 24th section all such rights to the use of this road by others, as can be consistently reserved, by reserving to the Territory or any company thereafter to be incorporated under its authority, the right and privilege to connect with the road any other railroad leading from the main route, or from either of the points at which said road terminates, and the free use of the road, by paying the ordinary tariff of tolls established for said road, and by reserving to the legislature the right to authorize the construction of other railroads leading from either of said points of termination.

The power of the government respecting public improvements is a sovereign power. It rests in the wisdom of the legislature to determine when, and in what manner the public necessities require its exercise, and with the reasonableness of the exercise of that discretion Courts will not interfere. (See Charles River Bridge vs. Warren Bridge, 11 Peters. 420, 605.) These necessities change with the progress of -society. That which would have satisfied the public demands a few years since, may perhaps now be wholly inadequate or useless. As new discoveries are made in science and adapted by art to the uses and wants of community, and its ever-changing condition, laws must adapt themselves to the existing state of things, not arbitrarily, but by natural' gradations. “In a country like ours, free, active, and enterprising, continually advancing in numbers and wealth, new channels of communication are daily found necessary both for travel and trade, and are essential to the comfort, convenience, and prosperity of the people.” (11 Peters, 420, 547.) The public have the right “to avail themselves of the lights of modem science and to partake of the benefits of the improvements which are now adding to the wealth and prosperity, and the convenience and comfort of every other part of the civilized world,” and government must adapt itself to the existing condition and wants of society, or its efficiency is destroyed.

It is also urged that the charter does not secure to the public any right to use the road, or to require it to be used for its benefit. In support of this objection, it is contended that every thing in this respect is committed to the will of the corporator's, who may run cars or not, and transport persons and property or not, at pleasure, and especially that they have the right to regulate tolls and transportation. The particular provision of the act of incorporation to which this objection points, is found in section 16, and is in these words:

“The said president and directors shall have power to purchase with the funds of the company, and place on any railroad constructed by them under this act, all machinery, wagons, carriages, or vehicles of any description which they may deem necessary or proper for the purpose of transportation on said road, and that they shall have power to regulate their own tolls and transportation; and it shall not be lawful for any other company, or any person or persons to transport any passengers, merchandize, or property of any description whatever, aloiig said road or any part of it, without the license or permission of the said president and directors of said company,” &c.

If the views we have already expressed as to the nature and character of this corporation are correct, this objection is already answered and as we have already seen, the 24th section of the act secures to the public all such rights of use, with vehicles other than those belonging to the Company, as are consistent With its proper enjoyment. Although by the terms of this act of incorporation, the Company has the right to regulate its tolls and transportation, yet this grant must be construed in view of the object sought to be attained, and not as the vesting of an arbitrary discretion. Were the rates of toll, for example, fixed so high as to amount to a prohibition, we cannot doubt but that it would be a mis-user of the franchise — such a malfeazance as Courts would punish. See (5 Mass. R., 230; 1 Cromp. & Jervis, 57, 400.) We do not advoeate the investiture of- such power in these corporations — we simply say that such does not necessarily render them unconstitutional, as determining the appropriation of property by them to be for private purposes. The object of the Legislature, being to open and facilitate eommimications for the public, determines as we have seen, the character of this corporation. The power to delegate the exercise of the eminent domain, to effectuate such piupose, from the' universality of its exercise, is no longer an open question. In eveiy instance'of turnpike, plank road, bridge, ferry, and canal companies, it has been employed, as well as in those of railroads. All this class of incorporations have been enabted upon the hypothesis that the lands taken for these purposes were taken for public use, and not for private endowment, and it legitimately follows that the tenure of the corporation is in the nature of a trust for the public use, subject to the supervision of the government, while its franchises are but the consideration paid for the faithful executiqn of this trust. It is an equally legitimate consequence, that the object intended must be effectuated, or the grant can be revoked, and the franchise reclaimed. If it be conceded that the prerogative or power of constructing-and employing these roads resides in the government it is difficult to see how the delegation of such prerogative can divest the government of supervision over its exercise. For the piupose of carrying out and effectuating the 'general purpose, the company may be regarded, as we have shown, as a trustee or agent — entitled to certain rights and immunities, upon a faithful observance upon its part, of the objects and terms of its creation. The right to pinchase and hold lands for the purposes of the road, being a right delegated in virtue of the eminent domain of the government, and derogatory to those of the citizen whose property is condemned, must be construed asjconferring no right to hold the property in derogation of the purposes for which it was taken. By the terms of the charter the title to the lands is contingent upon their occupation as a railroad. It is rested in the company so long as they are used for a railroad, and no longer. The government can, as individuals may, through the aid and interposition of its Courts, insist upon a faithful execution of the trusts and powers confided by it to others. In Chap. 19, § 1, of Angelí & Ames on Corporations, (3d Ed.,) it is said: “Civil corporations are visited by the government itself through the medium of the Courts of justice.” And again: “ Civil corporations, whether public or private, being created for public use and advantage, properly fall under the superintendency of the sovereign power, whose duty it is to take care of the public interests.” See also, (2 Kent Com., 6 Ed., 305.)

But in the case of this class of corporations, it is urged, and appears to have been measurably conceded by some authorities, that the charters of their existence are contracts, over which, so long as they are literally observed, no authority can be exercised — that the exercise of a discretionary power will not be questioned, and that any interference with such discretion would be in violation of the contract, and impair its obligation. Upon this subject the remarles of Judge Daniell, in the case of the West River Bridge Company vs. Dix et al., (16 Howard, 533,) are strikingly in point. “The impairing of contracts inhibited by the constitution,” he says “can scarcely by the greatest violence of construction, be made applicable to the enforcing of the terms or necessary import of a contract — the language and meaning of the inhibition was designed to embrace proceedings attempting the interpolation of some new term or condition, foreign to the original agreement, and therefore inconsistent with, and in violation thereof.” An6 in commenting in the same case upon the power of a State to exercise this right of eminent domain over the property or franchises of a Corporation, when needed, he'says: “In our country it is believed that the power was never, or at any rate, rarely questioned, until the opinion seems to have obtained, that the right of property in a chartered corporation, was more sacred and intangible than the. same right could possibly be in the person of a citizen — an opinion which must be with out any grounds to rest upon until it can be demonstrated, either that the ideal creature is more than a person, or the corporeal being is less” Now, were this a private contract between individuals, by which one entrusted to the other, property to be employed by the one, so as to secure a specified object or benefit to the other, with a general discretionary power, as to the method of employment for the purpose designed, Courts of justice would regard it as a trust, and compel its execution so as to effectuate the object* intended, and would restrain its exercise in a manner inconsistent with such object. Can a party acquire -higher privileges or immunities by contracting with the government, than by contracting with a citizen, or an association, than an individual? The government in this exercise of the right of eminent domain divests itself no more of the right of insisting upon a faithful performance of a contract, according to its necessary import, than does the citizen in the case propounded. There can in-neither case exist a discretionary power which may be exercised in a manner inconsistent with the object of the grant.

It was held in People ex rel. Taylor vs. Thompson, (21 Wend., 235,) that “the franchise of maintaining a bridge across a navigable river, and exacting toll, is a franchise of a public nature, and a quo warranto, or an ififormation in the nature of a quo warranto, is an appropriate remedy for any person aggrieved by a non-compliance on the part of the 'grantee of the franchise with the condition of his grant, and may be filed at his relation.” (See, also, 23 Wend., 537; 3 Kent Com., 458; 5 Mass. R., 230; 16 Ib., 94; 1 W. Black. 187; 2 Burr., 869, s. c.; 16 Serg. & Rawle, 144—146; 3 Rand. R., 142; 6 Conn, R. 23.) We have no doubt but that the abuse of this discretionary power to regulate tolls and transportation, whether by mis-user or non-user, is completely within the jurisdiction of Courts of justice, and that an aggrieved public have the same rights' of redress with an individual.

It is lastly objected to the constitutionality of this act, that it contains no provisions for notice to be given to the owner of the lands to be taken, of the proceedings to assess the damages for the appropriation of his property, that he may participate in them.

Upon this point the Ordinance and the Constitution are entirely silent. “When, therefere, the constitution provided that private property should not be taken for public uses- without just compensation, and without prescribing any mode in which the amount .of compensation should be ascertained, it is fairly to be presumed the framers of that instrument intended to leave that subject to be regulated by law, as it had before existed, or in such other manner as the legislature, in their discretion, might deem best calculated to cany into effect the constitutional provision, according to its spirit and intent.” Beekman vs. Saratoga & Schen. R. R. Co., (3 Paige, 45, 75.) See, also, Bonaparte vs Cam. & Amb. R. R. Co., (1 Baldw. R. 205.) Whether then, the act did, or did not require notice to be given to the plaintiff, would not determine its constitutionality. That it contemplated that notice should be given to the owner is apparent from its phraseology, for he is authorized to assist in striking the jury that shall assess, and upon the return of their inquisition into the Circuit Court, by which it is to be confirmed, he may show cause against it. This question of notice is, then, addressed to the Court before which the inquisition is returned, and they will always see to it, as is their duty, that a party shall be deprived of no rights from want of notice of the proceedings.

A number of objections were made at the trial of this cause, in addition to that which has been considered, to the-introduction of testimony by the defendants under their notice. Of these, but one demands our consideration. It was inged that the notice contained no allegation that the costs of the inquisition had been paid or tendered before taking the land. That a notice accompanying the general issue should possess all the substantial qualities of a special plea, is too well settled to require discussion. The tender of the costs of the inquisition was made by the proviso to the 12th section of the act of incorporation, a condition precedent to the taking of the land, and should have been averred As, however, a motion was made for leave to amend the notice in that particular, the denial of which was one of the grounds urged upon the motion for a new trial, we are not inclined, especially as both mo tions were addressed to the discretion of the Court, to consider it at this ^ime, but to confine ourselves to the questions of law particularly reserved for our determination. That is a matter yet left to the discretion of the Court below, in its further consideration of this motion. The great liberality expected of Courts, and exercised by them in this particular, will protect a party from refusal, when neither surprise nor injury can result from an amendment, and of the necessity and proper exercise of this discretionary power we cannot judge.

It must, therefore, be certified to the Circuit Court for the County of Oakland, as the opinion of this Court, that the provisions of the act of incorporation of the Detroit & Pontiac Rail Road Company for the condemnation of property, are constitutional.

CASE ARGUED AND DETERMINED TIE SUPREME COURT OR THE STATE OF MICHIGAN. OCTOBER TERM, 1852. PRESENT: HON. ABNER PRATT, HON. SAMUEL T. DOUGLASS, HON. SANFORD M. GREEN, HON. JOSEPH T. COPELAND, HON. GEORGE MARTIN, • Judges.