author: Moore, J.

text:
    The People vs. Edward Murray.
    1. A count in an information, that A assaulted B with ¡intent to WXand murder, without ' naming the person he intened to kill, hold sufficient.
    2. A count in an information which charges A with assaulting B with intent to kill C, hoi d had, on demurrer.

      Bay Circuit;

      April, 1871.
    Demurrer to information for an assault by shooting,with the intent to kill and murder.
    The first count in the information charges the defendant with an assault upon one Perry, With intent to kill and murder Perry.
    The second charges him with an assault upon Perry with an intent to hill and murder, without naming the person he intended to kill.
    The third charges an assault upon Perry with intent to kill and murder one Williams.
    Plea of not guilty to first and demurer to last two counts.
   By the Court,

Moore, J.

It is claimed by respondent’s counsel that the second count is bad, because it does not show the person the respondent intended to kill, and that the third count cannot be sustained because it alleges an assault upon one person with intent to kill another and different person.

I do not think the demurrer can he sustained as to the second count.

The offense charged is an assault,aggravatéd by the intent to kill and murder. The act done is alleged with certainty as to time, place and person assaulted, and the intent with which this act was done is distinctly averred.

The respondent is advised clearly of the accusation against him, and I think cannot he prejudiced by the form of pleading adopted. It is a convenient mode of pleading for the People, and cannot emharasss respondent. It is fully sustained by authority. Arch. Cr. Pr. & Plea., 270.

The’demurrer to this count is therefore overruled.

Jf I am right in the conclusion I have reached as to the second count, there can be no necessity for the form of pleading adopted in the third, count.

No reason has been suggested on the argument why both forms of pleading should be permitted, and I find no precedent approving of such a practice..

It seems to me entirely useless, and in many respects objectionable.

The demurrer to third count is sustained.


source: Caselaw Access Project

author: Brown, J.

license: Public Domain

text:
    George W. Stevenson vs. James W. Taylor.
    Replevin, under our statute, is a possessory action and may be brought against the agont of a party, if the property is actually in his possession, instead of the principal, whether the original taking of the property was lawful or not.

      Kalamazoo Circuit,

      May, 1871.

      R. F. Sill, for Plaintiff.

      J. W. Breese, for Defendant.
   By the Court,

Brown, J.

In .this case the plaintiff sued out a writ of replevin to recover possession of two trunks and contents.

The defendant interposes a plea in abatement, setting up that he received and held the goods as the agent of the American Merchants Union Express Company, a corporation organized under and by virtue of an act of the Legislature of the State of New York, lawfully authorized to transact and carry on the business of an express company and common carrier, in the State of Michigan, and to sue and be sued as such, in this State — and that he retained the goods in question as the agent of said company, to secure payment for the charges of their transportation. To this plea the plaintiff, demurs. Joinder in demurrer.

The special grounds of demurrer assigned are :

1. For that the said James W.Taylor by his plea aforesaid, has admitted himself to be the person named the defendant in and. by the aforesaid writ and declaration of him the said plaintiff.

2. And for that the said defendant in and by his said plea has admitted that he was in possession of the goods and chattels described in the said writ and declaration.

3. And also for that the matter set forth in said plea is matter of defence upon the trial upon the merits, and not the proper matter to. plead in ábatement.

It has been held that in cases of known agency, the principal alone is liable to third persons for any omission or neglect of duty in the matter of the agency. 2 Com., 126; 2 Denio, 115; 10 John, 387; Story on Agency, § 391, p. 518; 15 John. 1; 18 Id., 155.

And yet it has been held that an agent or servant, though acting Iona Me, under the directions and for the benefit of his employer, is- personally liable to third persons for any tort or trespass he may commit in the execution of the Orders he has received. If the master has not the right or power to do the act CQmplained of, he cannot delegate an authority to the servant which will protect the latter from responsibility. 1 Chitty's Pl., 84. It is true that in Chapman vs. Andrews, 3 Wend., 242, it was held that replevin would not lie against a receiptor of goods taken by virtue of an execution; but it must be borne in mind that that case was decided upon the ground that replevin could be maintained only where trespass would lie; and Chief Justice Savage, in the decision of that case says : “ The doctrine of this Court I consider as settled, that - replevin lies for such a taking as will sustain an action of trespass de bonis asportatis,” The action.could not be maintained at common law unless the original taking was unlawful; and if the original taking was lawful and the detention only was wrongful, ditinue was the action to be brought.

But “.replevin under our statute is peculiarly a possessory action; and its primary object is to enable the plaintiff to obtain the actual possession of property wrongfully detained.”— 12 Mich., 100; C. L., § 5005. It.is conceded that the defendant, Taylor, had the custody of the goods. He detained them in his own power, and the detention of property in one’s own power, is, in law, possession; and it matters not that this power Is derived from another and is being exercised in subordination to his will. In other words, when it is said that the possession of the. agent is deemed the possession of his principal, it is meant,'simply, that the actual possession of tho agent, if rightful, shall be recognized as the lawful possession of the principal. This being so, it follows that if the possession of the agent is unlawful, the principal cannot be said to have a legal possession. With this view of the case it is unnecessary to examine the other points raised by the.demurrer..

The demurrer must be sustained.


author: ChristiaAcy, J.

text:
    Burchard vs. Frazer.
    B. as tlie agent of his wife, contracted to sell a tract of land, representing the same to contain 514 68-100 acres, to F, knowing there was not so many acres in the tract, for a certain sum per acre. The deed did not contain a warranty of quantity. F gave a mortgage to secure a part of the purchase money. B subsequently became the assignee of the mortgagee.— In an action to foreclose the mortgage, Held, That B be treated as vendor and mortgagee, and that the mortgagor may have deducted from the mortgage a proportionate amount on account of the deficiency in the laud.
    Whether a note given for accrued interest on an obligation secured by mortgage is to operate as payment so as to detach the amount of such note from the lien of the mortgage, discussed, and, in this case, Held, That the lien as to the amount of such note was discharged.'
    Where a mortgage debt matures, and the mortgagor in consideration of the forbearance of che mortgagee to foreclose, agrees to pay a higher rate of interest than was first stipulated, Held, That tho mortgage is as between mortgagor and mortgagee a lien to secure payment of such additional rate of interest.
    Error to Wayne Circuit.
   Opinion by

ChristiaAcy, J.

The first question in this ease is whether Frazer, the mortgagor, and the other defendants who are purchasers from him are entitled to the deduction of $680 for the deficiency of twenty acres of land at $30 per acre.

Held, That the complainant acting as the agent of his wife who owned the land, in making the sale to Frazer, and in taking the mortgage for the balance of the purchase price, and having since become the assignee of the mortgage, may, as far as related to this question, be treated directly as vendor and mortgagee. The sale was a sale by the acre very clearly. The proposition to sell was as follows, viz:

“514 68-100. I propose to sell James ÍI. Frazer, my land in the town of Dearbon, 514 68-100 acres, together with the house thereon, for the sum of $30 for each acre of land, and $50 for the house tlicrecn, $4,000 to be paid on the delivery of the deed, the balance to be secured by mortgage on the same land, sold with a stipulation that the timber shall not be cut off only in just proportion.to the payments made in one¡ two and three years, with interest annually, one-third of the balance each year, and pay forone-half the ex pense of writings.”

The deed as drawn up did not contain a- warranty of quantity, but it appears that the price paid was exactly in accordance with the proposition, $30 per acre for 514 68-100 acres, and $50 for the house, and that complainant knew when the deed was given and mortgage taken that the tract contained only 49468-100 acres, leaving a deficiency of 20 acres, and that he had in his possession the minutes of the survey which showed this deficiency, and that he also knew that from his representation's to Frazer the latter supposed he was getting the whole quantity — 514 68-100 acres. The .deed was surreptitiously altered by adding “more or lesb” after the description of the land before execution. 1

Held, That complainant in thus misrepresenting the quantity, and in making the sale to Frazer for a price corresponding.to the larger quantity, was guilty of a deliberate fraud. Frazer, on-discovering the deed might have sustained a bill for reforming the- deed or for a deduction from the purchase price. He is equally entitled to the deduction in this suit for the foreclosure of the mortgage,

The next question is whether Frazer’s note of December 15, 1866, given to Jas. F. Joy, who then held the bond and mortgage as trustee for Mrs. Burchard, for $1,497 62, the amount of interest then due and in arrear, operated as payment so far as the mortgage was concerned.

Held, That the mere giving of a note for accrued interest, without anything more to show the intent of the parties, might not have this effect; but the bond and mortgage were drawing interest only at seven per cent, and the interest itself though due, was not drawing interest, as the claim then stood. The note was drawn with interest at ten per cent. Two important advantages, therefore, were secured to the creditor by taking the note — advantages which might well be supposed to outweigh the value of the mortgage lien for the same sum without interest, and the note created a new obligation on the part of the debtor, quite different from that secured by the bond and mortgage. The course of action of the creditor shows the intention to detach this amount from the lien of the mortgage, and to treat the note as payment. In December, 1868, he took a new noté of Frazer for the interest accrued upon this note, and receipted that amount upon the larger note, and a judgment has since been recovered on the smaller note, though the amount is still's unpaid. May 5th, 1869, Frazer - entered into a written agreement to pay ten per cent on all the balance due on the bond and mortgage from December 15th, 1857, when the whole became due. The agreement states, ‘- the amount to be ascertained to-morrow,” and the accounts of all the payments and calculation of interest in pursuance of the agreement showing the amount due May 5th, 1869, as furnished in writing to Frazer, credits this note as payment, thus : “ Payment, December 15th, 1866. Frazer’s note. 81,-197 62,” and the-balance is made out on this basis, precisely as if the amount had been paid in cash. There is uo reasou to doubt that this note was intended to operate as paymeut, or to detach and relieve that amount from the lien of the mortgage.

The only remaining question is upon the validity and effect of the special agreement made by Frazer with Joy, on May 5th, 1869, to pay ten per cent interest from December 15th, 1867, when the whole sum not paid had become due upon the bond and mortgage. '1 his agreement shows that there had been forbearance before its date, which was sufficient consideration for the agreement to pay the-additional interest up to that date, and any -forbearance which took place thereafter on the faith of that agreement was sufficient consideration for the promise to pay ten per cent interest till paid. This-agreement was in terms attached to the debt secured by the' mortgage.

jHeld, That as between the mortgagor and mortgagee, or holders of the papers, the agreement was valid, and should have the same effect as bétween them as if the original bond and mortgage had provided for ten per cent interest after December 15th, 1867, till paid

But when this agreement was made, and before maturity of the mortgage debt, Frazer had sold all the land covered by the mortgage, in separate parcels to various parties, some of whom are defendants in this case.

Held, That, as to these purchasers it was no more competent for Frazer to increase the mortgage debt or amount of the incumbrance by any such'agreement than it would have been to affect them by an additional mortgage subsequently executed for the increased sum.— He could only bind himself personally that the interest on the mortgage debt should be thus computed, and the complainant as against him personally is entitled to a decree at the increased rate of interest. But as far as relates to the lien of the mortgage upon the land, all of which has been sold to other parties, complainant is only entitled to a decree for the amount at seven per cent interest, as if the'agreement had never been made.

The decree as to defendant Frazer should be modified so as to allow the recovery against him of any balance of the mortgage debt, calculating the amount at ten per cent interest, according to the terms of the agreement and in other respects affirmed, and the record sent back to the court below for the execution of the decree— complainant to recover costs in this Court, as against Frazer, but the other defendants recover their costs of appeal against complainant.


author: Brown J,

text:
      In the matter of the petition of Benjamin Hartwell, for leave to raise a mill-dam.

      Eminent domainle tlie inherent right necessarily resting in every sovereignty to control anil regulate tlie relative rights of individuals, where those rights are of a publio nature, and pertain' to its citizens in common. Hence, no constitutional provision is necessary to give it force.
    The power of eminent domain may be exercised by the sovereignty itself, or may be delegated.
    It is for the legislative department to determine wlmt enterprises are of a public and what of a private character.
    Tlie provisions of tho Act of 1805, “ to encourage the ereetion and support of water power manufactories,” (excepting perhaps the last clause of section 5,) are not unconstitutional.
    Costs are awarded only by statpte.
    In proceedings had under the Act of 1865, “ to encourage the erectionand support of water power manufactories,” the respondent is hot entitled to costs, except in those cases in which the petitioner moves for a jury, to re-assess the damages reported by the committee, and tho jury fail to lessen tho damages. The words “fees and expenses” in Bee. 11, cm brace only the fees of officers of the Court, and the committee or jury.

      Kalamazoo Circuit,

      May, 1871.
    In this case a petition was filed May 28,1870, praying for authority to raise the dam across the Kalamazoo River, on the land of the petitioner, on Sec. nineteen,(19,) Town two (2) south, range nine (9) west, so as to raise the water of said river 3J inches higher, making a rise of 8 inches in all. The objectwas to increase the power to propel additional machinery. The petition shows, that the effect of raisingthe dam would be to overflow certain lands belonging to George E. Field, and also lands belonging to one Andrew McCleary, and that the petitioner had been unable to agree upon the damages to be paid to each on account of the overflowing of their lands as contemplated.— The prayer of the petition was for the appointment of a committee to establish the height of the dam and to assess the sums to be paid as damages for flowing the lands of McCleary and Field, to the end that the “ petitioner may acquire the right to flow said lands according to the provisions of the act of March 21,1865, relating to such cases.” Upon the filing of this petition, an order was entered appointing a committee and directing them to hear and decide the matters contained in said petition, and if said commissioners should be of the opinion that the flowing of the land in the manner proposed would he for public use, to establish the height to which the dam may be built and kept, and thereby the water raised, and the length of time or period during which the same may be kept up during each year thereafter,and to assess the sum to be paid as damages occasioned or to be occasioned by reason of the contemplated overflow of water.
    In obedience to this order, the committee proceeded to view the premises and to take proofs, and thereafter reported to the Court that’the mill now used by the petitioner is for public use and that the proposed addition would he for public use, and estimated the damages to be paid by reason of the proposed overflow^ and find that the dam should be increased 3$ inches, and to he kept up through the entire year.
    The petitioner now moves for a confirmation of this report. To this, objection is made by McCleary, on the alleged ground that the act under whicli the proceeding has been had íb unconstitutional.

      May & Buck, for the petitioner.

      Edwards & Shencood, for the respondent.,
   By the court

Brown J,

When the question as to the constitutionality of the act under consideration was first presented, I entertained grave doubt» as to how it should be decided.

The effect of a confirmation of this report must be to deprive the respondent, MeCleary. oi the use of his lands and to transfer the right of its occupancy for a particular purpose to another.

It is not contended that he or any of those under whom lie claims title have, by any act of theirs, forfeited the title or the right to the uninterrupted enjoyment of .the premises.

Can he be legally divested of his right to the uninterrupted enjoyment at his estate, and if so, by what law ? The validity of the enactment under which the petitioner seeks to acquire an interest in the respondent’s lands, is denied by the respondent, who asserts that it is repugnant to the constitution of the State.

The interests of individuals • in . property are traceable to the government; and in this country the aggregate body of the people in their sovereign capacity constitute the government. Tt is true that the government grants to individuals the right to take and appropriate estates as their own; and yet the doctrine has always been recognized that the eminent domain, the right which the government retains over the estates of individuals, is a sufficient warrant for resuming such estates for public use.

The title to much of the lands in this country has been derived from the Federal Government and not from the State ; and it would therefore seem that the Federal rather than the State government would be justified in the exercise of the power of emment domain. But inasmuch as under our somewhat anomalous or at least peculiar system, each State is charged with the protection of its citizens in their persons and property, it has been held that the character of sovereignty in the State is necessary to enable it to discharge its functions properly in that respect, requires that the power of eminent domain shall pertain to and reside in theState government. This being so, it will be seen that the right is founded more in the necessity growing oat of ourrelations to each other and to society than of a mere implied reservation in the grantor, where the government grants the estate. Indeed, I think it is quite as correct to say that eminent domain is the inherent right necessarily resting in every sovereignty to control and regulate the relative rights of individuals where those rights are of a public nature and pertain to its citizens in common. This being so, no constitutional provision is necessary to give it force. The power is not born of written constitutions but is usually limited by them. It therefore follows that the . people, through their representatives are to determine the question as to the propriety and expediency of exercising this right — they are to say what property may be taken for public use, and to declare what shall be deemed public and private uses, limited only by the Constitution.

Judge Cooley in his work on Cons. Law, 524, says this right “ is the authority which must r,est in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety,convenience or necessity may demand/’

This power may be exercised by the sovereignty itself or may be delegated- In the case under consideration it is claimed that the power has been delegated.

The respondent insists that the purpose for which thé power is invoked, is not of such a character as to authorize its exercise. Does the public safety, necessity or convenience require it ? — and by public we do not mean, necessarily, the people of the whole State, county, or even city or township, but the people of a community or neighborhood may be called the public in this sense, and when we speak of a public enterprise we mean such an one as is common to the people — as may be used by them, and opposed to private. But what branch of the government is to determine what enterprises are of a public and what of a private character ? In the case of Beekman vs. S. & S. R. R. Co., 3 Paige 73, Chancellor Walworth says : “ If the public interest can be in any way promoted by the taking of private property, it must rest in the'wisdom of the Legislature to determine whether the benefit to the public will be of sufficient im portance to render it expedient for them to exercise the right of eminent domain. Upon this point, see the cases reported in 4 Pick., 463; 7 Id., 453, 475, 476; 12 Cush., 477; 1 Chandler, 80.

The object sought in this case by the exercise of the power of eminent domain, is to enable the petitioner to run the machinery for a foundry and machine shop, and if it were to be ieft to the courts to determine the question as to whether the flowing of the lands of another for such a purpose would be for public use, there is no question but that the point is settled in favor of the claim of the petitioner; for in this class of cases the courts have, whether it was necessary to the decision of the cases before them or not, announced in almost, if not every instance, the opinion that the taking of property as proposed, is for the public use. My attention has been called by counsel, to the statutes of Maine, New Hampshire,Ohio, Massachusetts, Connecticut, Tennessee, Kentucky and Wisconsin, sim ilar to the one under consideration, and to the fact that in five of these States these acts to encourage the erection and support of water power manufactories, have been held to be constitutional. It must be held that the Legislature has the power to provide for the taking of property as proposed by the petitioner.

Has that power been exercised in accordance with the requirements and provisions of the Constitution? Sec. 2, of Art. 18, requires that “ the necessity for using such property, and the just compensation to be made therefor, shall be ascertained by a jury of twelve freeholders, residing in the vicinity of the property, or by three commissioners appointed by a Court of record.” Sec. 3 of the act of 1865, Sess. L. 1865, p. 651, is as follows:

“ The petition, unless the parties thereto shall agree upon the judgmentthat shall be rendered thereon, shall be heard and decided by a committee of three judicious, disinterested freeholders ot the county, to be appointed by the Circuit Court of the county, at such time and place, and with such notice to those interested as the Circuit Court shall order; and if such committee shall be of opinion that the flowing such land in the manner proposed is or will be for public use, they shall establish the height to which such dam may be built or kept, and thereby the water raised, the length of time or period during which the same may be kept up in each year thereafter, and shall assess the sum to be paid to the respondent, by tne petitioners for the right to flow such land according to their teport, and make return of their doings to the Court; and in estimating the damages they shall take into account any damages occasioned to any other land oí the respondent, as well as damage to the land overflowed, and having assessed such damage, shall make return of tbeir doings to said Circuit Court, and said Court shall add fifty per cent, to said sum as the sum to be paid for such right to flow such land.”

It is true that section five of the act. provides that on the coming in of the report of the committee, the Court may set the same aside, and may inquire'for itself whether the erection of such dam is for public use or not, notwithstanding any finding of the committee. It is argued that this clause is unconstitutional, in that it confers powers upon the Court, which the Constitution requires shall be exercised by a jury or by three commissioners. It appears to me that there is much force in this argument. But as a law may be constitutional in some of its provisions and Unconstitutional in others,-it is only necessary to inquire whether, for the purpose sought, enough of the independent provisions of the act, not subject to these objections, are to befound to authorize the exercise of the power invoked. Section 3 does not appear to be open to the objection urged, and as the proceedings were bad under that section, and as the Court has not been called upon to, nor has it acted under thé provisions of section five, I can see no valid objection to the confirmation of the report.

Let an order he entered accordingly.

'The report of the committee being confirmed, the respondent, Andrew McCleary, by his counsel, moves the Court for an order that the petitioner pay the respondent’s costs and expenses of the proceeding. The motion is based upon two grounds, viz:

1. That by the general statute relating to costs in the Circuit Court, being Chap. 149,12. S. of 1846, amended by act approved April 15th, 1871-, the respondent is entitled to costs, and

2. That the act under which the' proceedings in question were instituted, being Act No. 304, of Laws of 1865, as amended, provides for the recovery of costs by the respondent.

This Court has already decided in Lovell vs. Bartholomew et. al., 1 Nisi Prius, 117, that as- costs are awarded only by statute, when the statute tails to provide for costs none can be taxed.— Therefore where costs áre given by either the general law or the particular statute referred to, the motion cannot be granted.

It is claimed by respondent’s counsel that so far as the award of damages by the committee is concerned, the respondent is the plaintiff. But by the statute under which this proceeding is had, the party now moving for costs is denominated “ the respondent,” and even if the word.‘‘ plaintiff” in Sec. 3, of Chap. 174, Compiled Laws, could be considered as synonomous with the words “ prevailing party,” it might Well be doubted whether the petitioner is not the prevailing party so far as the award of damages is concerned, inasmuch as the petitioner virtually asks leave by his petition to pay to the respondent whatever damages may be awarded to him. And a more conclusive objection to the respondent's claim under the general statute is that Sec. 3 above referred to, provides that “ in the following cases” the plaintiff “ shall recover his costs,” and as no proceeding like the one in question is included in the enumeration of cases in that section, the effect of the words “ in the following, cases” would seem to be to restrict the recovery of costs to the cases mentioned in the several subdivisions of that section.

Upon an examination of the Act of 1865, before referred to, it does not appear that the Legislature contemplated the payment of costs by the petitioner to respondent except-in those cases in which the petitioner should move for a jury to re-assess the damages reported by the committee and the jury should not lessen the damages. In such eases, by a provision contained in Sec. 8, the petitioner would be obliged to pay costs to the respondent.

By Sec. 11, of the act in question, it is provided that “ the fees and expenses of the petition shall be paid by the petitioner,” &c.— But the words ‘‘ fees and expenses” in Sec. 11, arc evidently used iu contradistinction to the word “ costs” in Sec. 8, and must, I think, be construed to embrace only the fees of officers of the Court 'and the committee, or jury.

Therefore as neither the general statute, nor the special act in question, provide for the payment of costs to the respondent, the mo tion for costs must be denied.


author: Campbell, C. J.

text:
    Smith et. al. vs. Webster et. al.

    Liability of principal for trespass of agent or servant. Relation of muster and servant.
    Error to Jackson Circuit.
   Opinion by

Campbell, C. J.

Plaintiffs sued defendants- for trespass for the destruction of trees upon their lands. The alleged trespass was not committed by the defendants themselves, but by others in their employ who were engaged in cutting trees and gathering bark for defendants on their own lands, and went on plaintiff’s lands, as they claim by mistake.

The Circuit Court held that there was no liability in this action, unless the trespass was committed by the actual direction oí defendants, or was ratified by their assent, or appropriation of the property, with knowledge of the trespass. Aud the Court refused to charge that any wrongful act or negligence of the defendants whatever could subject them to this action.

It was claimed on the argument that the persons doing the wrong were not in law the servants of the defendants, but were in the position of independent contractors, for whose acts none but themselves and their immediate employees could be held liable.

Held, That the evidence warranted no such conclusion. The men were employed as laborers of defendants, subject entirely-'to their control. The intermediate agent was an overseer, and the acts complained of were done in the regular course of business, not wilfully. "'All these were servants of the defendants, and the latter-aré responsible for their acts. If the offence of the men would be trespass, there is no sense in holding the master exempt ficoni the same kind of' responsibility, and however the common law may have'been, the policy of our statutes would hold absent employers liable.

The action was properly brought, and the evidence tended to prove no other relation than that of master and servant.

Judgment reversed with costs, and a new trial ordered.


author: Cooley, J.

text:
    Arnold vs. Nye.
    It is to be presumed from the judgment, except in the case of inferior tribunals or those not proceeding according to the course of the common law, that jurisdiction of the parties was duly obtained.
    "¿he appearance of an attorney for a defendant is to be taken.as prima facie evidence that he had authority to appear.
    '¿lie want of a seal to an execution does not render it void, and such execution may be amended.
    lu the computation of thb timo required by statute in the service of notice of an application for an order for a commission to take testimony, the day of service is to be excluded, and that on which the application is to' be made included.
    Notice of the settlement of interrogatories may be served at tbo same time with the notice of the application for a commission.
    Discretion of the Judge as to cross-examination.
    A Deputy Sheriif, after the expiration of his term of office, was permitted without any affidavit or other showiug. to endorse on a declaration served by him while in office, an amendment to his return so as to show that a copy of a rule to plead was endorsed on the copy served by him. Held, That this was error.
    Error to Washtenaw Circuit.
   Opinion by

Cooley, J.

Held, That the objection taken to the ssion in evidence of the judgment in the Federal Court against James Arnold in favor of Clark has no force. The ground of the objection was that it did not appear on the lace uf the recurd that Arnold was serv d with process. It is to he presumed except in the case ot inferior tiibunals or those not proceeding' according to the course of the common law, that jurisdiction of the parties was duly obtained. In this case, however, an attorney of the Court assumed to answer for the defendant and consented in writing to the rendering of the judgnient. It must be assumed, in th.e abseuce.of evidence to the contrary, that he was duly authorized to act,

Held, That the oojection to the certified traLscript, that it did not show tho execution issued on the judgment to have been under seal, is not a valid one. The want of a seal, if really wanting, might have been supplied on motion to amend, and did not render the execution void.

Held, That the Court erred in rejecting the deposition of Page. The ground of rejection was that ten full days’ notice of the application for the order for the commission was not. given as required by the statute. T he notice was of an application to be made on March 15, 18(-0, and was served on March 5. The general rule is toexclude the day service and include that on which the application is to be made, and under this rule the service was in time. The notice required in this ease comes within the general rule, and is not within the exceptions to said rule.

The defendants in error also object to the deposition that notice of the settlement of interrogatories was given at the sainé time with the notice of the application for a commission, and of course before the order for issuing the commission had been granted.

Held, That the statute does not in terms provide that the com • mission must be ordered before any steps can be taken to settle interrogatories, and there it no reason for putting such a construction upon it, as the same opinion is to decide upon the application and settle the interrogatories. It seems not improper to give such notices that the settling of the interrogatories may immediately follow the order for the issuing of the commission.

One Stowell was sworn for the defendants,' and a member of the bar was called to impeach him, and testified that he had known Stow, ell for a number of years and knew his reputation for truth and veracity in the neighborhood where he resided, and that it was bad.— Oft cross-examination he testified : “ I have had no personal difficulty with Stowell; he was a witness in the Goldsmith divorce case; T was counsel in that case.” He was then asked: “Did the judgment of the Court sustain the theory of the case to which Mr. Stowell testified ?” The question was objected to hut allowed,and the witness replied : “The judgment of the Court was in accordance with the theory testified to by Stow-ell in that case.’’

B»Jd, That very much ought to be left to the discretion of the Circuit Judge as to the extent to -which cross-examination shall be allowed, and that this decision ought not to be set aside because of the latitude of examination permitted, unless there had been a clear case of legal indiscretion. See Stewart vs. The People, decided last term. There is no reason for holding that the discretion of the Circuit Judge was exercised improperly or unwisely.

Error was also assigned in refeience to the action of the Court in suffering an amendment to be made in support of one of the judgments under which the defendants justified. The judgment was one taken by default on a service of declaration made by the defendant Osborn, who, when service was made was a deputy sheriff, but who ceased to be such when the tria, was had. The certificate ot service did not show that any copy ot rule to plead was served with the declaration, and the Court, when objection was taken to the judgment on ibis ground, allowed Osborn, without any affidavit or other showing, to amend his return in such a manner as to show that a copy of rule to plead was indorsed on the copy of declaration served by him.

Held. That great liberality should always be shown in permitting amendments in furtherance of justice; but when a record is to be corrected under circumstances like these, all due precautions should be observed to have proper evidence, so that the amendment when made will represent actual fact. Evidence of service of a declaration may be made either by affidavit, or by the official return of the Sheriff, and in either case a protection against, or a remedy for, a false proof of service.— Here there was no official return of the service upon which there was legal liability. The former Sheriff cannot be liáble for the trust which he had confided to Osborn had termimated, and he no longer authorizes Osborn to use his official title for any purpose, nor would he have any remedy against any sureties he may have required oí Osborn. Neither would the amendment be made under the sanctity of an official oath, for the person making it was no longer an officer when itwas made, A showing should have been required by affidavit instead of an amendment of the official return.

The judgment of the Court below is reversed with costs, and a new trial ordered.


author: Graves, J.

text:
    Clark vs. West.
    Evidence showing that the plaintiff in an action of replevin had no right to the possession of the property when be commenced his suit is a bar to his action; and such evidence iff admissible without a plea in abatement or pleajpw's darien continuance.

    Error to Oakland Circuit.
   Opinion by

Graves, J.

In April, 1870, Clark sued West in replevin for a heifer, before John H. Dresser, a Justice of the Peace. May 21, judgment was rendered for West, and Clark removed tho ease to the Circuit on certiorari. The heifer was returned to West after the judgment, and five days after that, notice of the certiorari was served on the Justice, and West was required to return the animal to Clark. She was taken from the stable of West by Brown, the co-defendant, and was returned to Clark by him. On that same day West, who claimed that this taking was not with his consent, brought replevin against Clark before George Robertson, another Justice, and June 15, Robertson gave judgment for West, and Clark appealed. Meanwhile the Court had considered the first ease and reversed the judgment of the Justice The second appeal having come on for trial, West proved the proceedings before the other Justice, the judgment, the subsequent taking of the heifer by Brown, her delivery to Clark and her value. He then rested the case on his behalf.

Clark then offered to prove his original title to the animal, that she was taken from him during his absence, and that the judgment of Justice Dresser had been reversed. The Court below held this evidence inadmissible, concluding that the judgment of Dresser was conclusive as to the title, and that the reversal could not be shown, without a plea puii dañen continuance, since the judgment of certiorari was rendered since the last continuance of the case on trial.

Held, That the rejection of this evidence' was rroneobs. The case of Belden vs. Lang, 8 Mich., 500, was considered decisive of the matter. If the evidence tended to show that at the time of the commencement of the action the property was not in West, then the evidence should have been admitted. The cases were fully examined and found to sustain the doctrine asserted.

The judgment of the Circuit Court was reversed with costs, and a new trial was ordered.


text:
    Johnson vs. Maxon.
    J, as the agent of M's creditors, prosecuted M under the non-imprisonment act. M thereupon suedJ for false imprisonment, claiming that ¡.the matters laid before the Justice.did not make out a prima facie case to authorize a warrant. The statuterequires “satisfactory evidence” to be adduced to the Justice as a ground-work for the proceeding • Held, That if there is any evidence legally tending to establish the statutory requirements, a court of review will not inquire whether it wóuld deem the evidence ‘‘satisfactory;” and that if the process was irrogular or wrongly or improvidently issued, if it was sued out through bad or indefensible motives, and yet was not absolutely void, the imprisonment was not false in any sense adequate to support the charge preferred. If it was wholly void and yet was obtained orallowed in perfect good faith and without any wrong motive not only J but the magistrate was liable.
    Proceedings under the non-imprisonment act available to others than judgment creditors.

      Held, That while a valid levy subsists on sufficient personal property, it Is irregular to commence proceedings under this statute, and that a party proceeded against in both ways simultaneously may allege the same for error. But the jurisdiction ought not to be assailed in an indirect manner on this ground, through the medium of an action for false imprisonment.
    The non-imprisonment act is constitutional.
    Error to Bay Circuit.
   Opinion by

Graves, J.

Maxon prosecuted Johnson for an alleged false imprisonment, and the latter sought to defend by showing that the imputed trespass consisted of an arrest and imprisonment by means of a proceeding under the non-imprisonment act. The Court below excluded the defense on the ground that the proceedings in question were absolutely void.

The action is trespass and the party sought to be charged was a person alleged to have prosecuted those proceedings as an agent of the creditor. The ground for the action was that the plaintiff was imprisoned under color of process claimed by him to be void, and which defendont insists was not vcid, and the fundamental question litigated was whether the Justice acted with or without jurisdiction. If the process was irregular or wrongly or improvidently issued, if it was sued out through bad or indefensible motives, and yet was not absolutely'void, the imprisonment was not false in any sense adequate to support the charge preferred. If it was wholly void and yet was obtained or allowed in perfect good .faith and without any wrong motive, not only Johnson, but the magistrate was liable — The leading objection taken to the proceeding was that the matters laid before the Justice as evidence to authorize a warrant, not only did not make out & prima facie case, but had no legal tendency to prove what the statute required.

By the statute, the Justice is not to isssue the warrant unless satisfactory evidence” is adduced to the Justice of certain prescribed particulars which' are intended as the ground-work of the proceeding, and it ip provided that, “ upon such proof being made to the satisfaction of the officer to whom the application shall be made, he shall issue a warrant.”

Held, That this Court-will not examine into the evidence presented to the officer to determine wnether it is satisfactory” to this Court, but if they find there was any evidence of the required facts submitted to him, then if he issued the warrant, it will be'presumed that it was satisfactory to such officer, aud if so he had jurisdiction to issue the warrant. The law does not make the jurisdiction depend on the weight of the evidence in the abstract, or on the conflicting opinions of different courts or magistrates respecting the cogency or conclusiveness of the evidence. The officer is not required to exercise his judgment upon the sufficiency of the evidence at the peril of being made liable as a trespasser if he happens to be mistaken. His decision may involve an error to be corrected and still be unassailable for defect of jurisdiction. If, therefore, the evidence laid before the Justice had a legal tendency to make out a ease in all its parts, then however weak and inconclusive the evidence was,, this Court is not at liberty to review it, and convert the actions of Johnson into trespass solely upon a conclusion that the Justice ought not to have been satisfied with the showing.

It is suggested that the creditor, to be entitled to proceed under the act, must be a judgment creditor, and that this must be shown.

Held, That this is erroneous, and that the proceeding was intended to be available only where there should be no judgment creditors at all.

The Court then proceeds to examine and comment upon the proofs laid down before the Justice, and concludes that the intrinsic character of the evidence was such as to present a question for t-h° judgment of the Justice upon the weight and con elusiveness of the evidence, and as a consequence to invest the magistrate with jurisdiction. “ But,” it is added, “ while this is so we cannot avoid adding that the ease made before the Justice was, in our opinion, altogether too weak to serve as a ground for a warrant.”

It was objected to the proceedings that when thosfc proceedings were commenced the attachment in the suit commenced by the cred itor had been levied upon what is claimed to have been sufficient o Maxon’s goods and chattels to satisfy the debt. It is insisted that this fact of its own force rendered the proceedings void, and may consequently be shown in this action to deprive them of all efficacy as a shield or defense for Johnson,

Held, That while a valid levy subsists on sufficient personal property, it is irregular to commence proceedings under this statute, and that a party proceeded against in both ways simultaneously may allege the same for error. But the jurisdiction ought not to be assailed in an indirect manner on this.ground, through the medium of au action for false imprisonment, like the present.

Finally, it is objected that the act is unconstitutional. Irnsup port of this it is said that the remedy contemplated'is a criminaprosecution within the meaning of section 28, article 6, of the Constitution, and being required to be carried on before a judicial officer, without a jury, the statute is void.

Held, That this proposition is wholly untenable. The present point was not involved in Bromley vs. The People, 7 Mich. 472.— The opinion in that ease in no manner countenanced the idea that the proceeding was criminal in any such sense as to make the intervention of a jury necessary. The non-imprisonment act is not impugned by the Constitution as claimed, and the proceedings before the Justice were not void for want of jurisdiction, and they were legally admissible upon the trial as a ground of defense by Johnson.

The judgment of the Court below must be reversed, with costs and a new trial ordered.


text:
    John Rose vs. The Commercial Ins. Co. of Chicago.

      Bay Circuit,

      April, 1871.
   By the Court,

Moore, J.

The defendant applies for .an order transferring this cause to the Circuit Court of the United States for the Eastern District of Michigan, under the act of Congress of 1867,for the reison as alleged, that it cannot have a fair and impartial trial in this Court, jHeld, The defendant having consented to transact the business in this State upon the terms and conditions imposed by our laws, it cannot now ask to be treated as a non-resident defendant, and entitled to the benefit of the provisions of the act of Congress referred to. As to the business in this State, it is to be treated as a resident of the State.

Application denied.


author: Patciiin, J.

text:
    Charles A. Lorman vs. Frederick L. Seitz.
    Cohts. — —Rulo in oases appealed from J ustice’s Court.

      Wayne Circuit,

      April, 1871.

      Geo. II. Prentis, for Plaintiff.

      Wm. Jennison, for Defendant.
   By the Court,

Patciiin, J.

This cause was tried in a Justice’s Court and judgment rendered therein for plaintiff for fifty dollars arid costs. The defendant thereupon appealed to this Court, where the jury rendered a verdict for plaintiff for twenty-five dollars.

Both parties now claim costs.

The first distinction made between appeal cases and others was provided for in the revised statutes of 1846, by giving costs to th«r appellant, if the judgment below should be reduced five dollars, and to the appellee if no such reduction was made, allowing no such discretion to the Court in cases tried by a jury. Revised Statutes, 1846, page 410. sec. 170.

The compiled laws of 1857 leave the question of costs in appeal cases entirely to the discretion of the Court. C. L., § 8863.

In 1867 the law was amended so as again to leave the question of costs to depend upon the increase or reduction of the judgment below. Latos of 1867, p. 84.

The next Legislature however repealed this law, leaving the question as it had been established in the compiled laws, entirely dependent upon the circumstances of each case. Laws of 1889, p. 33.

Each Case, therefore, must be determined upon its own merits. It would seem proper, however, to adopt some ueiieral plan in regard to appeal cases, so that litigants may understand as near as may be, what to expect in case of defeat in the Circuit Court.

I am entirely clear that, in cases where the amount is unliquidated and”submitted to the jury upon the evidence, if the main issue was as to the right of the plaintiff to recover at all; a*nd if the appellant was the defendant upon that issue then although he may succeed in reducing thejudgment of the Court below, still he can be in no better condition than if the case was originally commenced in the Circuit Court, and he had succeeded in reducing the claim of the plaintiff, but had failed as to the main issue. It could hardly be ex-pacted that in cases depending so much on the judgment of the jury exactly the same verdict as to amount would be rendered upon a second trial even in the same court. It would, therefore, be more in accordance with strict rnles of justice to allow costs to follow the result of the main issue in the case unless some particular reason appears in the course of the trial for a different disposition.

As a general rule it would not be proper to allow costs to follow the judgment in this Court in all cases of trivial amounts in favor of the appellant, even if successful, although a different rule might prevail on judgment, in favor of the appellee.

I am unable to see anything in the case at bar to interfere with the rule here suggested.

Costs must follow the judgment.


author: Blackman, J.

text:
    Farrer vs Highway Commissioners of Silver Creek.

      Heldt That tho declaration in trespass, in a suit-certified to this Court ón a plea of title from a Justice’s Court, may be amended so as to make the description conform to the description of the premises in the notice attached to the general issue; ifbeiug then apparent that when the pleadings were made up in the Justice's Court the error was overlooked by both parties.
    The proviso in section 1, of the highway law, that no second application «hall-be made within twelve months, is not a limitation on the part of the Highway Commissioners, who may acton such second application if they please.
    "Where the.record of proceedings in laying out a highway showed notice of tho meeting of the Commissioners to lay out had been served on three persons’, but did »not show them, to bo owners or occupants, or who were owners or occupants, the Commissioners had no power to lay out such highway, and their order laying out was a nullity.

      Cass Circuit,

      May, 1871.
   By the Court,'

Blackman, J.

On reading the pleadings, it appeared the premises mentioned in the Narr.,differed from the premises mentioned in the notice attached to the general issue, in the use of N. E. ¼ for N. W. ¼, and that the description in the notice was correct. Upon this state of the pleadings the justification does not answer the charge, and the Justice could not have certified up the case to this Court. It is then clear the mistake was mutual and that the pleadings should be amended so as to raise the issue intended by the parties. This view is sustained by the opinion of. Justice Cooley, in McFarlane vs. Ray, 14 Mich., 471.

The trespass claimed was committed, if at all, in removing a fence.

Defendants justified, alleging tho locus in quo was a newly laid out highway, that riotiee to remove the fence had been given, and the time limitegl having expired and the fence, not having been removed, they, as officers, opened the road by setting to one side the rails across the way.

To show want of jurisdiction the plaintiff offered to show that within twelve months preceding the date of this application, 81st of August, 1870, an application for a road had been made to the Commissioners. The. termini of the two roads were not jirecisely the same, but both were intended to sub-serve substantially the same purpose;. It did not appear nor was there an offer to show what the Commissioners had done with the first' application.

Section 1, Session Lanes of 1867, page 255, provides for two things: proceedings by the applicants and proceedings thereupon by the Commissioners, and then adds, “ provided that no second application shall be made within twelve months for that purpose.”

One of the political uties-of a State is the construction of public ways. This duty this State has laid upon towns! which act by their officers, and these last are presumed to periorm their duties for the public benefit. A proviso restraining their action in a case within the enacting clause must not be .extended beyond the exact letter.

To hold this proviso a restraint upon the public so that no matter how the first application was treated, whether withdrawn, or abandoned, or illegal, or not acted on for any reason, would be to decide a mere nullity should have the same effect to suspend official action and public rights. It seems to me the proviso was meant for the ease of the Commissioners, and that the meaning is, that they shall not be compelled to proceed to lay out, &c., upon a second application made within twelve months after action upon" a former'one

In this view,void proceedings will be no bar to future action if they will consent to act.

The Legislature says to them, “ You shall not be compelled to proceed, &e., having twelve months before acted on an application for the same road, but, if for any reason, the first application or the proceedings thereon prove to be nullities, you may-if you please, proceed.”

The record of the proceedings of the High way Commissioners in laying out the road is quite full, and yet the application does not state the owners or occupants of the land, through and over which the proposed highway was to pass. The notice is not directed to any person and is also silent on this point.— The return on it of service says nothing of service on such persons, and the return of their" doings by the Commissioners is equally silent.

In 14 Mich., 528, and 16 Mich., 63, service of the notice of hearing on the owners or occupants is said to ’be essential to jurisdiction. By Section 3r Laws of-1867, page 171, the Commissioners must return their doings, among which doings must be the notice given.

The defendants have furnished no evidence of the service in this case except the words, “ due notice having been given,” which on the state of this record amounts to-saying “ no notice was given to the owners,” ¿sc.

Instead of this, the return should have said, “ having found that personal service,” or whatever the service was, “of the notice herewith returned has been made on,” naming them, “ who are the only owners or occupants of the premises through which the highway is proposed tó be laid, at least ten days before the time of the meeting in said notice given, and that such notice has been posted at,” naming the places, the same length of time, “ being three public places in the township.”

In computing the ten days, the day of giving the notice and of meeting must both be excluded.

For want of notice, the laying of this highway is a nullity.


text:
    Howerter vs. Kelly.
    Case made from Berrien Circuit.
   The action was replevin. The writ was issued while a vacancy existed in the office of Circuit Judge, and was tested in the name of Charles Upson, Circuit Judge. The Court set aside the writ, because at the time, it was issued, although Judge Upson had been designated by the Governor to perform the duties of Circuit Judge, the Clerk had not been notified of his acceptance. The Circuit Judge then proceeded to assess defendant’s damages, and aunounced that he should give judgment for a specified amount. The plaintiff then requested the Court to find the facts in writing, but he declined to do so.

Held, 1. That the writ was properly tested.

2. That' plaintiff had a right to have a finding of facts in writing.

The judgment below is reversed.


text:
    Zeller vs. Harris.
    Case made from Cass Circuit.
   Itappears that the cause was brought into the Circuit Court by cer tiorari aud the judgment of the Justice was there affirmed. The plaintiff in error then caused a case to be made and brought to this Court, but the return of the Justice was not embodied in the case, but instead thereof the Circuit Judge undertook to set forth its substance.

Hi Id, That the judgment of the Justice could not be reviewed without having his return in full before the Court, and a case made which did not embody it was fatally defective. Case dismissed.

Whether a certiorari case can be brought up at all by case made was not decided.


text:
    Swift et. al. vs. Applestone.
    There is no error in allowing the next friend of an infant plaintiff to act as an interpreter fot a witness in the case.
    tu an action for damages for injuries occasioned by the bite of a dog, the defendant’s knowledge of the vicious character of his dog maybe considered in estimating damages.
    Error to Oakland Circuit.
   Opinion by

Cooley, J.

The Court held that it could not he said that the permitting the next friend of an infant plaintiff to be sworn as an interpreter for a witness who did not speak the English language, was error, whatever objections of policy might seem to apply to such a course. The common law rules excluding parties and interested persons from testifying in civil cases are entirely done away witin this State.

Nor did the Court err in refusing to strike out the testimony of the witnesses Baumer and Bell. They seem to have been examined to show that the defendant below had knowledge as to the vicious character of the dog which inflicted the injury. This knowledge is properly taken into account by the jury in estimating the damages.

Plaintiffs in error argued that the Court below erred in not awarding judgment for them upon the whole record, inasmuch as the verdict was for them (defendants below, on the first and third counts and was inconsistent with any verdict against them on the second count, which was for the same cause of action as the others. Also that'the Court erred in not giving judgment in their favor for costs upon the issues found in their favor. It was deemed-sufficient as an answer to these arguments to say that the record did not show that any motion in arrest of judgment was made on this ground — The Court further held that the three counts in the declaration were not, as a legal proposition, for the same cause of action.

The course taken to double the damages was correct, knd the judgment was affirmed with costs.


text:
    Harriet Snell vs. Samuel Scott.
    Where the statute requires service of process a certain number of days before the return day both day of service and the return day must be excluded.
    Where, by statute, an act is required to be done in any number of days less than a week, Sun day is to be excluded.
    Circuit Judges have no original jurisdiction in cases under the Forcible Entry and Detainer Act, as amended in 1867. *

      Decided at Chambers, Kalamazoo,

    May, 1871.
    The complainant in this case, made and delivered to the Circuit Judge, a complaint in writing, setting forth that the defendant is in possession of certain described lands of the complainant, in the county of Van Burén, and that he holds the same unlawfully and against the. rights of the complainant, and praying for a zestitution of the same. Thereupon, on the third day of May, 1871, a summons'was issued, commanding the defendant to appear before the said Circuit Judge, at the Circuit Court Room in Kalamazoo, in the county of Kalamazoo, on the ninth day of May*, at one o’clock P. M., to answer to said complaint.
    The summons was served Saturday, May 6th.
    The defendant moves to quash the complaint, summons and other paoceedings in the cause and to dismiss the proceeding.

      Batch, Smiley & Batch, for Complainant.

      John B. Upton and ‘Arthur Brown, for Defendant.
   Opinion by

Brown, J.

Paragraph 4976, of the Comp. L., as amended by Sess. L. 1867, p. 88, provides that “ The person entitled to the possession of the premises, his agent or attorney, may make complaint in writing and on oath, and deliver the same to a Circuit Court Commissioner, or the Recorder of the city of Detroit, or a Judge of a court of record of the county or city in which the premises are situated, or to.a Justice of the Peace of the township where the premises are located,” &e.

The following were stated as two of the grounds for the motion :

1. The service of summons was not made a sufficient length of time prior to the return day thereof.

2. That the statute does not authorize proceedings of this chart acter to be. had before Judges of the Circuit Courts.

The statute requires the summons to be served “ at least two days before the return day thereof.” C. L., § 4988. Where the statute requires service of process a certain number of days before the return day, both day of service and the day of the return must be excluded. Douseman vs. O’Malley, 1 Doug., 450; Salee vs. Ireland, 9 Mich., 154. And it seems to be equally well settled that where by statute an act is required to be done in any number of days less than a week, Sunday is to be excluded. Drake vs. Andrews, 2 Mich., 203; Thayer vs. Felt, 4 Pick., 354. Recognizing this’as the correct construction of the statute, renders it unnecessary, in order to dispose of the case, to examine the other question presented by the motion.

As'the decision upon the question of notice, however, would be but a temporary disposition of the ease, it may be well io consider whether the statute confers jurisdiction upon Judges of the Circuit Courts to hear cases of this character. By the provisions of § 4 986 proceedings under the “ forcible entry and detainer act” might be had before a Circuit Court Commissioner or Judge of the Circuit or county Court for the county,” in which the lands were situated In 1861 this section was amended by striking out the words “ or county,” and by conferring jurisdiction upon Justices of the Peace in such cases, in townships or cities where the premises were sitúated, where no Circuit Court Commissioner ■ holds his office. Seas. L. 1861, p. 465. In 1867, this section was amended as first above quoted, providing that the complaint might be delivered to “ a Circuit Court Commissioner,'or Recorder of the city of Detroit, or a Judge of a court of record of the county or city in which the premises are located.” The Circuit Court is a court of record.. But is it a court of record “ of the county” within the meaning of this statute ? I am unable to find in the statutes or rules any reference to Circuit Courts as “courts of the county”; but when referred to in connection with a county, the language is, “ Circuit Ctfurt in the county;” or “ Circuit Court for the county.” The fact that the amendment of 1867, does not refer to Circuit Courts, by name, and that the “ courts of record” referred to are mentioned as “ of the county” is, I -think, significant, as bearing upon the question of the intention of the Legislature. The word “of”.is defined as being equivalent to “ from, or out from : proceeding from, as the cause, source, means author or agent bestowing; belonging to; pertaining or relating to; concerning.” \While the word “ for,” is often used as synonomous with the word “of,” it has a broader, and in some instances a different meaning. To do a thing for another, is to do it in his behalf, and does not imply, necessarily, any authority derived from the person, or that the person doing the act sustains any relation peculiar to the person for whom the thing is done, or any different relation than that sustained to others. I think the wordsof the county” must be construed as pertaining exclusively to the county, and when applied to a court must be held to mean such a court as grows out of and is requisite and incident to a complete organization of the county — a court presided over by a Judge whose official character and authority -is limited to the county. Most of our Cirquits are composed of a number of counties, and in some instances,the Judge resides at so great a distance from some portions of his Circuit, that it would be almost if not quite impossible for a defendant to reach the office of the Judge, on a two day’s notice. The Judge1 of the 11th Circuit, resides at Detroit, while his Circuit is composed of eomparitively new counties in the north part of the State, where during some portions Of the year'the means of conveyance are very limited. These considerations would, at least, furnish a reason for a change in the law; and froin the peculiar phraseology, of the act of 1867, I can arrive at no’other conclusion than that a reasonable and correct construction of this act would be to deprive Circuit Judges of jurisdiction in this class of eases.

The* proceedings must be dismissed.


text:
    Labar vs. Nichols.
    To entitle a person to appeal from the allowance of an administrator’s aeccmit, he must show that he has been aggrieved by such allowance.
    Error to Kalamazoo Circuit..
   Opinion by

Campbell, C. J.

The Circuit Court dismissed an appeal from the allowance of an administration account, on the ground that the appellant was not a personage aggrieved by the order appealed from. The appellant was the sen of deced'ent, who died testate, and had bequeathed him $10 out of a considerable estate, all of which was willed to specific and residuary legatees and devisees. The will was probated and established in 1859. The account in question was settled in 1689, and the order of settlement directed this legacy to appéllantto be paid, and a large surplus -was shown and ordered to be distributed

The appellant had no interest in the case save as to his legacy of $10 and as to the question whether he might be held liable so far- as his legacy went for some contingent and unaccrued claims which might be discovered. The statute requires that the person appealing must be “ aggrieved,” and his interest must be present and existing. No claim has yet occurred after the lapse of many years, nor does there seem any likelihood that appellant’s interest will be interfered with in any way.

The order of the Circuit Court dismissing- the appeal is affirmed.


author: (Jhristiancy, J.

text:
    The People vs. Schweitzer.
    Kvidonce as to the commission of other offences than' the one with which respondentia acoused, held inadmissible,
    Tiie weight of legitimate evidence is to bo left entirely to the jury.
    Error to the Becorder’s Court of the City of Detroit.
   Opinion by

(Jhristiancy, J.

There was no legal ground upon which the witness, Dumpby, could have been allowed to testify to the commission by the defendant of another larceny from that for which he was on trial. The general rule is unquestionable. The admission of such evidence, upon whatever ground it might have been let in, would tend directly to prejudice the defendant. He could not anticipate such evidence, and would probably be unprepared to meet it, though he might have a perfect defence to the charge.— The intimacy between Schweitser and Stewart might probably have been shown in another way; if it could not, it does not make this sort of evidence admissible. The evidence was, therefore, improperly admitted.

There was no error in the refusal of the Court to charge that it is not safe to convict a defendant on the uncorroborated testimony of an accomplice, or any number of accomplices. This was exclusively a, question for the jury.

Judgment reversed and a new trial ordered.


text:
    Moore et. al. vs. Cheeseman et. al

    Appeal in Chancery from Van Burén Circuit.
   The bill in this ease was demurred to because it was not sworn to. This, apparently, upon the ground that from some averments in the bill it was to be subjected to the rule,requiring creditors’ bills to be sworn to. The Court below sustained the demurrer.

We think this was wrong. The bill does not belong to the class of statutory creditors’ bills which are named in the statute to be verified. There is no rule requiring bills in cases of general equity cognizance to be sworn to. Bills that attempt to remove into a court of equity matters cognizable in a court of law, and bills in cases requi ring the preliminary act of the Court upon facts stated in the bill if the facts are not otherwise established, should bé verified. But the absence of a verification to a bill not requiring it is not the ground of a demurrer.


author: Christiancy, J.

text:
    Dibble vs. The People.
    Error to Hillsdale Circuit.
   Opinion by

Christiancy, J.

The question in the case was whether upon proceedings in the nature of forcible entry and detainer when had before a Justice of the Peace the costs are limited to $10, as provided by section 127, of the .general Justice’s act, as amended. After showing that the general Justice’s act gives no jurisdiction to Justices in special cases, Judge Christiancy says that it is clear that section 127, limiting costs, has no reference to costs in these special proceedings.- This limitation applies only to cases of which Justices had jurisdiction under that act, or of which they might have jurisdiction by way of amendment to that act.

By the act of 1861, authority to try these forcible entry and detainer cases was given to Justices, giving Justices special powers in certain cases. From this act and its amendments he derives his powers,- and by its provisions he is controlled.

The judgment of the Circuit Court of Hillsdale County, awarding a mandamus against the Justice, plaintiff in error, was reversed, and it was held that he might recover his costs against the relator.


author: ',Brown, J.

text:
    Joseph Scott vs. Henry Stearns.
    The authority to tax being regulated by statute, the law must be striotiy followed.
    Where an assessment roll can not be found in the office of the Supervisor, it is prima faeie evidence, that it never existed.
    If'the Overseer of Highways neglects to return to the Supervisor, under oath, the listof nonresident lands in his district, with amount of labor assessed thereon» and showing that the labor has not been performed or paid, the Supervisor has no authority to spread a tax upon the roll against the land. — Presumption if not found in the Supervisor’s office.
    Assessment roll not signed, invalid.
    There is no statute making tax deeds for tax of 1840, prima facie evidence of regularity of proceedings prior to execution of the deed. A paper purporting to bo an assessment roll for 1840, signed only by the Clerk, did not authorize the oollpction of the taxes mentioned in the roll.
    The certificate attached to the roll must conforto to the statute.

      Excessive Tax — Betterments.

      Kalamazoo Circuit,

    May, 1871.

      Arthur Brown, Attorney for Plaintiff.

      Breese & Grosuenor, Attorneys for Defendant.
   Charge of the Court

',Brown, J.

Gentlemen of the Jury: Plain tiff seeks to recover possession of E. $ of E. £ of S. W. J of Sec. 5,T. 1 S., R. 12 W., in Kalamazoo Qounty. Defendant admits possession. Plaintiff to show title has introduced :

1. A Patent from the United States to' Rufus Sheldon, of date May 1, 1839.

2. A conveyance from Rufus Sheldon and wife to Wm. Alcott, dated September 21, 1870.

3. A conveyance from Wm. Alcottt and wife to Joseph Scott.

These conveyances appearing in due form of law, I advise you that plaintiff is entitled to yojir verdict for possession of the premises in question, unless it has been made to appear that ho has been divested of his title. For the purpose of proving that, the defendant’s counsel have introduced in evidence the following conveyances of the same land made, it is alleged, upon sales of the land for the non-payment of the taxes assessed thereon:

1. Auditor General to Chauncey Pratti October 20, 1842, for tax oi 1838.

2. Auditor General to Chauncey Pratt, April 10,1844, for tax of 1839.

3. Auditor General to Chauncey. Pratt, November 18, 1844, for tax of 1840

4. Auditor General to Chauncey Pratt, December 23,1846. for tax of 1841.

5. Auditor General to Chauncey Pratt, December 23, 1846, for tax of 1842.

6. Auditor General to- Chauncey Pratt, December 23, 1846,, for tax of 1843.

7. Auditor General to Chauncey Pratt, December 30, 1847, for tax of 1844.

8. Auditor General to Chauncey Pratt. November 11, 1848, for tax of 1845.

9. Auditor General to Chauncey Pratt, November 19, 1849, for tax of 1846.

10. Auditor General to Chauncey Pratt, January 18,1851, for tax of 1847.

11. Auditor , General to Chauncey Pratt, November 20, 1850, for tax of 1848.

12. Auditor General to Chauncey Pratt, January 17,1863, for tax of 1857.

The defendant has also introduced in evidence a land contract, of date Sept. 8th, 1863, by which it appears that Pratt agreed to sell the land]to one Emory D. Rubert. This contract appears to have been assigned to the defendant; also a deed from Nelson Noble and James R, Pratt, to the defendant, bearing date January 12, 1870. Noble and Pratt describe themselves in the deed as the executors of the estate of Chauncey Pratt. It is admitted that at that date, January 12, 1870, Chauncey Pratt was dead, and that Noble and James R. Pratt were his executors in the State of New York. But as there is no evidence as to their authority to act in this State, or to sell the lands in question, I advise you to disregard the deed made by them to the defendant.

The plaintiff insists that the several tax deeds are invalid by reason of certain irregularities in the proceedings preceding the sale of the lands by the County Treasurer. The interests of the State require that burdens should be imposed upon the property of its citizens, burdens to support the government, and enable it to protect the property and persons of such citizens To compel contributions for this purpose, the Legislature have proscribed certain rules, and have provided that unless the taxes levied upon the lands are paid, they shall be a lieu thereon and thát unless paid, such lands, or so much thereof as shall be necessary to pay the tax and costs of sale shall be sold. In order, however, to divest the owner of such lands of his title it is necessary that the provisions of the law should be followed. The title of the purchaser at a tax sale is derived not from the ordinary conveyance of the owner, but by the law as prescribed by the Legislature, and if these are disregarded, no title passes. The authority to tax being regulated by statute, the exercise of such authority must be in strict conformity to the law. If the law is not complied with, in the assessment and levy of the tax upon the land, the owner is not bound to pay the tax; and hence a sale of bis land on account of his refusal or neglect to pay the tax would be unauthorized and void.

Where a person claims title under a sale or sales made for the non-payment of taxes, he must show, unless by some provision of law such showing is dispensed with, that every step required by law for the assessment and levy of the tax and sale of the land has been complied with. By the statute of 1848, deeds made by the Auditor General, upon sales made for the non-payment of taxes, are made prima facie evidence of the regularity of all the proceedings required to be had to warrant a sale.— Hence the Auditor, General’s deeds to Pratt made upon the sale of the lands for delinquent taxes affected by that law must be taken as evidence of title in Pratt, unless some defect or irregularity be shown, such as I shall soon refer to. And I advise you that the plaintiff must show some substantial error affecting injuriously the owner of the land, in the case of each deed, except the deed of 1842 for the taxes of 1838, or he cannot recover. But if defects are shown which go to the jurisdictiofi of the officers who are charged with the collection of the taxes and sale of the land, the sale would be invalid. It therefore follows that any void tax entering into and forming a part Of the consideration of a tax deed, vitiates the whole tax and renders void the deed. Our own Supreme Court have held that the law'presumes” officers entrusted with custody of public files and records, will perform their official duty by keeping them safely in their offices. Where a paper is not foumj, where if in existence it ought to be deposited or recorded the presumption arises that no such paper has ever been in existence.’’ 10 Mich., 260; 16 Mich., 139.

Our statutes require that assessment rolls shall be kept by the Supervisors of the several townships, in their office, and when the roll, for a particular year is not found there, the presumption arises that such roll never existed.

A statute passed in 1844, and still in force, requires the Overseers of Highways on or before the first Monday of October, in each year, to make and return to the Supervisor, “ a list of all the lands of non residents and of persons unknown which arc taxed on his list, upon which the labor assessed has not been paid, and the amount of labor unpaid ; and said 'Overseer shall make and subscribe dn affidavit thereon before some person eompeieht to administer oaths, or beiore the Supervisor, that the labor assessed upon the lands as returned has not been performed and remains unpaid.” .

It this affidavit and return is not made,the Supervisor has no jurisdiction to spread a highway tax — and if without such return a highway tax is spread on the lands, the tax deed for that year is void. If such return is not now found in the office of the Supervisor, the law presumes it never to have existed.— Therefore if the jury find that there is now no such return and. affidavit in the office of the Supervisor, for the. years 1844 to 1848, inclusive — highway taxes having been charged against the lands for those years — the law presumes the tax-titles for those years void, in the absence of any evidence showing that such returns Were made.

The tax-deed for the, year 1838, offered in evidence, the sale being made in October, 1842, would not be prima fuñe evidence of the regularity of the tax or of title in the defendant; and in the absence of any evidence tending to show the regularity of such proceedings, you are to disregard the tax-title for that year.

The assessment roll offered in evidence by defendantfor the year 1839, without certificate or signature, would render such roll illegal, and the tax for that year void.

There is no statute making the tax-deed of 1840 prima facia evidence of title, or of the regularity of the proceedings.

The document offered in evidence on the part of defendant, and called the “ assessment of taxes for 1840” being signed only by the Town Clerk, would not authorize the levy or collection of any tax for that year; and if that be the only assessment roll for Alamo for 1840, the tax-deed for that year would be void.

For the years 1842 and 1843, the Supervisor swears he can find no assessment roll in his office. This is prima facia evidence that none ever existed, and that the tax-titles for those years are void

In 1844, 1845, 1846 and 1848, the certificate of Supervisors and Assessors attached to the several rolls given in evidence, in following the form prescribed by statute, omit the words in regard to personal property, “ Except in those cases where the value of the same has been sworn to by the owner, his agent or attorney.” Where the statute prescribes the form of a certificate, it must be literally followed; and the departure from the correct form in these cases render it fatally defective, and the assessment of taxes for those years void. Sess. Laws 1843 p. 67, Sec. 19; Rev. Stat. 1846, p. 105, Sec. 21.

The calculations given in evidence by the Clerk of this Court, for the year 1842, would, (if you believe his testimony,) show the County, Town and State tax, to.be $0 42, on the basis taken by him, whereas $1 04 has been assessed. This excess would vitiate the tax if the data taken by him were correct, as given in evidence by town and county records.

The defendant has filed a claim for betterments under § § 4603 and 4604, O. L., and plaintiff has filed his counter claim under the statute.

The tax tor the year 1840, for State and county purposes was five mills. There is evidence tending to show that no town tax was voted for that year. If this be true, the tax levied oh á valuation of $240 would be $1 20. The tax actually levied is $L 92. This excess would avoid the tax for that year.

The tax levied for the year 1843, is $0 45; the' calculations made by the Clerk would show the correct tax to be $0 33.— If these calculations are correct and based upon the amount actually voted for town, county and State tax, this excess would avoid the tax and tax-title for that year.

The return of the Overseer of Highways to the Supervisor, offered in evidence, would not authorize the levying and collecting of any tax for that year; and as it appears that a highway tax was levied, and tor the non-payment of which the land was sold, the tax-title for that year would be void.

If from the facts in this case you find, upon applying to them the law as given you by the Court, the plaintiff entitled to recover, or those under whom he holds, and that the defendant claiming title by virtue of a sale made for the non payment of taxes, made improvements, you will then enquire how much more valuable the premises are by reason of the improvements on the premises, made by the defendant- or those under whom he claims title.

If you find the land more valuable by reason of these improvements than it would have been had the defendant’ and those under whom he claims title left it in a state of nature, such increased value should be allowed to the defendant, and the amount in such case should be specified in your verdict; and you may also find what would have been the value of the premises had no improvements been made.


author: Campbell, Ch. J.

text:
    Clark vs. Babcock.
    Construction of contract. Question of damages.
    Error to Bay Circuit.
   Opinion by

Campbell, Ch. J.

Babcock sued Clark*, his lessee for rent. The defense set up by way of recoupment was under a claim for damages, partly for delay in getting the property in condition for profitable use and partly for expeuses in repairs. The lease running for one year from February 1,18G9, demised a steam saw-mill and salt, works and its lands, with a reservation of certain houses and premises not used for business. On notice to be given before October 1,18G9, (which was given,) the lease was to be-extended two years more, but subject to be defeated by the lessor upon notice and payment of certain sums named. The lease was renewed without countermand, the rent being §10,000 a year. The sum of §1,000 was to be paid to the lessor for repairs to be made by him, $1,000 for insurance, and the balance as specifically provided. The lessor agreed to put the salt works in complete running order by March 15, and to put the mill in complete and good running order by April 15. In case the mill and salt works were not put in order, as provided for, thou the lessee was to have the right to complete the necessary repairs and deduct the sums expended from the first payments. If Mr. Bennett was employed as the engineer, the consequences of any negligence on his part were to be borne by the lessor, and if through his carelessness the mill con-tinned idle for a time, a deduction was to be made from the rent le> make the lessee good. The year was to he considered the sawing season of six months. The destruction of the mill by.fire was to terminate the lease, and pro rata allowance was to he made in casa of partial destruction by fire.

The lessor did not make the necessary repairs, and the lessee took possession and made fhem himself. The salt works were put in order by April 10, but the supply of brine being unsatisfactory, some work was dono on the well afterwards, and the mill was got in order by May 11.

The Court below excluded all evidence of damages dependent on the preliminary delay in getting -the property in runninng condition, and confined them (beyond the expenditure for repairs) to such as might arise out of the deficiency in the well. The ground was that the lease did not contemplate any redress for such preliminary failure beyond the right of the lessee to step in after March 15 and, April 15 respectively and complete the work at the lessor's expense, to be applied as rent.

Held, That this ruling was correct. The parties must have had this very question before them, and yet fixed no rule of damages.— They probably" would, had they contemplated that any special damage would be allowed. The mill was the principal thing and the salt works the accessory, and the provisions relating to the mill were especially regarded.

The other question related to the "condition of the salt works and the losses supposed to have occurred through its defects. The claim was two-fold: one, that the lessor was bound to furnish a well capable of supplying sufficient water in quantity and quality for the profitable use of the works) second, that he was liable for-haying actually repdered the well less productive than it would have been without his work.

Held, That there was no foundation for tho point, as the well was known to both parties at the 'time of the lease, and if, was leased with an equal understanding of the facts. No covenant seems to have entered into the matter. . The Court examined the facts developed by the record concerning the second point, and concluded that they would not sustain the position taken-

The judgment was therefore affirmed' with. costs.


text:
    Sibley vs. Baker et al.

    A gave B a mortgage on three parcels of land and subsequently a second mortgage on parcels known as parcels one and two of the same lands, and later,, a mortgage on parcels two and three to C. B foreclosed the second moragago, making O a party. On the sale, D became the purchaser of parcels one aud two, subject "to the first mprtgage. On the foreclosure of the first mortgage. Seldx That parcel number three should be sold first.
    Appeal from Eaton Circuit.
   Opinion by

Cooley, J.

This was a foreclosure ease, and the questions relate to the marshalling of securities. The mortgagor first gave a mortgage to complainant on three parcels of land. Afterwards he gave a second mortgage to complainant on parcels known as one and two; later a third mortgage to defendant Winchester on parcels two and three. Complainant foreclosed the second mortgage making Winchester a party, and the decree which he obtained directed that parcel two,- for Winchester’s protection, should be sold last. The sale was made and the defendant Isbell became the purchaser of both \>ieees for a sum in the aggregate equalling the amount due upon the decree, taking them subject to the first mortgage. The present suit was brought for the foreclosure of the first mortgage, and in this it' is shown that defendant Is-bell has become the purchaser of complainant’s interest in parcels one aud two, but on che understanding that when sale is made on the foreclosure of this mortgage, parcel three shall be sold first.— The question was whether the .decree should be in accordance with this understanding or whether defendant Winchester has not a right to demand that that the first parcel sold shall be parcel one.— The Circuit Court held that be had.

Complainant while holding the first and second mortgages had a right to have the latter protected on a foreclosure of the former, •and the mortgagee must have had the right to have parcel three sold first since as' the second mortgage only covered parcels one and two, if those were sold for the satisfaction of the first mortgage aud enough should Be raised from thein^ the effect would be that the second mortgage would be cut off. The giving of the third mortgage did not affect this question, and the third parcel must have remained the primary fund for the satisfaction of the first mortgage. A purchaser ou the foreclosure of the second mortgage has a right to be protected in his purchase. Defendant Winchester must have understood this when he took the mortgage on the third parcel.— The same conclusion is reached by the application of the rule of .inverse order of alienation.

It was argued for defendant Winchester that he had never until now had an opportunity to protect his' interest in parcel three, because had he bid at the sale under the. prior foreclosure a sum greater than the amount duo ou the decree, it must have been paid over to the mortgagor, and consequently would have been of no avail in reducing the securities. Held, that this was a mistake.— Any surplus must have been paid into Court, and would have been applied on one of the securities on the proper petition.

It was part of the arrangement when Isbell bought, that the third parcel should be sold first. The decree of the Circuit-.Court was accordingly ordered modified. The costs of Isbell were ordered taxed and added to the amount for which sale will be made under the decree.


text:
    Haskell et al. vs. Hunter et al.

    Error to Ionia Circuit,
   Opinion by

Cooley, J.

Held, That the Circuit Court erred in directing the jury to deduct the 18,200 feet of lumher received by the plaintiffs from the whole amount to bo delivered, when they entered upon the computation of damages. The effect was to prevent the plaintiffs from recovering .in respect to this portion of the timber as iff' it had been delivered in compliance with the contract, and accepted by the plaintiffs in satisfaction of the undertaking of the defendants to that extent. But. the record shows that it was not delivered as agreed, and.that the plaintiffs were subjected to a heavy bill for freight iu eonsoqucucc ; and there is nothing to show that there has been any waiver by the plaintiffs of their right to be compensated for the loss sustained by this breach of the agreement.

The Court also erred in instructing the- jury that ill getting at the proper measure of damages in respect to the lumber not delivered, they must allow the plaintiffs only the .difference between the piice they were to pay‘for the. lumber, and the wholesale price at the place of delivery. The true question was not one of wholesale or retail price, but what it would have cost the plaintiffs to procure at the point of delivery and at the time when it was proper to supply themselves lumber of the kind and quality they were to receive on the contracts, and deducting the contract price from the cost.

Judgment reversed and a new trial .ordered.


text:
    Preston vs. Whitney.
    An instrument as follows: “ $70. Detroit, Nov. 25th, 1SG9.
    On demand,- after date, I promise to -pay to the ort^er of M. Pteeton, seventy dollars, value received, with 7 per cent, interest.
    This note is valid as part pay for a piano-forte bought of-mo at retail price.
    O. J. WHITNEY.”
    is a promissory note for the payment of money with tho option of the payer to apply it as part payment on the purchase of a piano.
    Error to Wayne Circuit.
   Opinion’ hj

Christiancy, J.

The instrument upon which plaintiff sought to recover was in the following words :

“$70. Detroit, Nov. 25th, 1869.
On demand, after date, I promise to pay to the order of M. Preston seventy dollars, value received, with 7 per cent, interest.
This note is valid as part pay for a piano-forte bought of me at retail price.
C. J. WHITNEY.”

Held, That prima facie, and without any explanatory evidence aliunde, this instrument must- be regarded as a promissory note for the payment of money with the option of the payer to apply it as part payment on the purchase of a piano, of the maker, at retail price. The memorandum at the foot of the instrument contains nothing repugnant to or inconsistent with the promise in the note itself to pay money.

Admitting that evidence to explain the intent of this memorandum was legally competent, the only evidence actually introduced -for that purpose was that of Preston, who was called by the defendant, and whose testimony tended to show that the real intention of the instrument and of the parties was substantially in accordance with the construction which the Court derived from the instrument itself. The note was given for money due Preston which he had paid to defendant on a piano, under a written agreement' to purchase, which,was identified by the witness, and on which he had paid $100. He had had the piano three months-, and plaintiff had deducted $30 for. the use of the piano, and had given this note for the balance, the piano having been returned to and sold by defendant. When-the note was given it was understood that if Preston should want to buy a piano he should buy it of defendant, but that he was not bound to do so, or to lose the value of the note if he did not. He had not made a demand on the defendant or applied to him in any way to have the note or the amount of it applied on the purchase of a piano. Hefendant introduced no evidence to contradict this, and offered none except that connected with his offer to introduce the written contract and to prove its forfeiture. He offered the written contract and proposed to show by other testi mony that the sum was forfeited by the plaintiff, on account of non. complance with its terms as to payments, and the piano returned; that plaintiff proposed to purchase another piano of defendant, and urged defendant in the event of such purchase to allow him $70 to apply on such purchase when made and that in pursuance thereof this note was given, and that nothing passed to (defendant, for said $70 except what was paid on said contract. This offer was refused.

Ueldl That if there was anything in the contract and the facts proposed to be shown which would materially change the nature of the obligation created by the note and the other evidence introduced, Or which would,constitute a defense to the action or any part-of it t;hen this refusal was error, otherwise not.

This agreement was one for a conditional sale only, the property remaining in the vendor as owner until paid for ; that the property never passed to the vendee. And while it is provided expressly that for non-payment of any one of the several instalments, defendant might, take possession and said agreement should become void, no provision is made for the forfeiture by plaintiff or the retention by defendant of any sum which might have been paid upon it before the forfeiture.

Held, That from the time of the taking of possession the agreement for the sale may be treated as void or terminated. The defendant, then, after taking possession, had $100 of plaintiff’s money in his hands, for which he should account on just and equitable principles He would doubtless have the right to deduct from the amount a fair compensation for the use of the piano while plaintiff had it, or perhaps at his option the interest on the purchase price o,f it for that period, as well as for any reduction in value from injury beyond that arising from its legitimate use, and foij any incidental expense in regaining possession, but he would have no right under this agreement to claim any forfeiture of all the money received by him beyond such reasonable compensation, as he has given no equivalent or consideration therefor. It appearing that $30 was deducted from the $100, and no evidence having been given or offered to show that this deduction was made for any. other purpose than the compensation above alluded to, or that this defendant-was justly entitled to anything more, the proposed evidence if given, would not have changed the legal effect of the note nor constitute any defense to the action.

Whether it would be competent to provide in such a contract for the forfeiture of all the several installments which might have been paid prior to default, or whether such a provision would be needed as a penalty according to the principles which distinguish penalties from stipulated damages, is a question not here decided. There was no error in .the proceedings beforq the Justiee which would operate to the prejudice of the defendant.

The judgment of the court below must bo reversed, and that of the Justice affirmed, and the plaintiff must recover liis costs in all the courts.