author: By the Court, Whipple, C. J.

text:
    Attorney General ex rel. McKay vs. Detroit & Erin Plank Road Company.
    Section 14 of the general plank road law, approved March 13fch, 1848, provides among other things, that “ whenever any plank road company may wish to use any part oí a public highway or street, for the construction of their plank road over the some, such company ehall apply to the supervisor and commissioners of highways of the township, or common council of any incorporated city, or the president and trustees of auy incorporated village, as the case may be, in which said highway or street is situated, for the purchase or release of the same; and it shall be the duty of such supervisor and commissioners, or common council of any incorporated city, or the president and trustees of any incorporated village, as the case may be, to examine, at the expense of the company, so much of auy such highway or street as may be wanted as aforesaid, by such company; and if in the opinion of a majority of such supervisor and commissioners, or common council of any incorporated city, or the president and trustees of any incorporated village, as the case may be, the public interest would not be prejudiced by granting the application of such company, said supervisor and commissioners, or a majority of them, or common council of any incorporated city, or the president and trustees of any incorporated village, as the case may be, may in writing, signed by them, grant to such company aright to enter upon, take, and use such highway or street, for the purpose of the construction, maintenance, and use of a plank road thereon, under the provisions of the charter of such company; and upon filing such grant in the office of the township clerk of such township, the said company may at once enter upon, take, and use such highway or street, for all the purposes aforesaid/» Sec. ' ‘

      See. 4 of tlie act of incorporation of the defendants, (Sess. L. 1848, 882,) provides that as soon as said company shall be duly organized, the directors may enter upon, and take possession of so much of the Fort Gratiot road, so called, as lies between the city of Detroit and township of Erin, in Macomb county, and proceed to construct and maintain thereon a plank road.
    Sec. (J of said act of incorporation provides that the provisions of the general plank road law first named, shall be deemed a part of the said act of incorporation. Held, that section 14 of said general law is restricted by the said act of incorporation of the defendants, and that by their charter the defendants may use that part of said Fort Gratiot road specified in section 4 of their charter, without any grant or release from the supervisor and commissioners of the township through which that part of said Fort Gratiot road runs; and that the words “public highways,” as used in section 14 of the general Jaw, are restricted in such a manner by the act of incorporation of the defendants, as not to include highways distinguished from other highways by having been constructed by the general government.
    It is a cardinal rule in the construction of statutes, that effect is to be given, if possible, to every clause and sentence, and it is the duty of Courts, so far as practicable, to reconcile the different provisions of a statute so as to make the whole of it consistent and harmonious; and where this is impossible, to give effect to what was manifestly the intention of the Legislature.

      Backus <& Ilarbaugh, for complainants.

      Emmons <& Van Dyke, for defendants.
   By the Court, Whipple, C. J.

A motion for an injunction was made in the Circuit Court of Wayne county, founded on the following facts: A common or public highway, called tbe Fort Gratiot Road, commencing at the city of Detroit, and extending through the townships of Hamtramck and Grosse Point, is alleged to have been obstructed by a corporation called the Detroit and Erin Plank Road Company, by the construction of a plank road and the erection of toll houses and toll gates over and across the said road. The hill also states that the Fort Gratiot Road has been established, worked and used for upwards of twenty years, and that the company has never applied to the supervisor or commissioners of highways of Hamtramck, for the purchase and release of any part of the Gratiot Road ombraeed in said township, and that neither the commissioners or supervisor have ever granted in any way to said plank road company a right to enter upon, take or use any part of said Fort Gratiot Road for the purpose of constructing, maintaining or using a plank road thereon.

As it is important to the public interests that the real question involved in this controversy should be definitively determined, and the door closed to future litigation, we have not thought it necessary to pronounce an opinion upon the question presented by the defendants, as to whether or not the case made by the hill would justify the interposition of a Court of Equity by writ of injunction, supposing the defendants to have had no authority under their charter to take possession of the Fort Gratiot Road, without the assent of the supervisor and commissioners of highways of the township of Hamtramck.

The act entitled “ An Act relative to Plank Roads,” approved March 12, 1848, provides in the first section, that all corporations thereafter created for the purpose of erecting plank roads, should he subject to the provisions therein contained. By the fourteenth section of this act, it is provided in substance, that whenever any plank road company may wish to use any part of a public highway or street for the construction of their plank road over the same, such company shall apply to the supervisor and commissioners of highways of the township, or common council of any incorporated city, or the president and trustees of any incorporated village, as the case may he, in which the highway or street is situated, for the purchase or release of the same; and it shall be the duty of such supervisor and commissioner's, or common council of any incorporated city, or the president and trustees of any incorporated village, as the case may be, to examine at the expense of such company, so much of any such highway or street as may he wanted as aforesaid by such company; and if in the opinion of such supervisor and commissioners, &c., tho public interest would not he prejudiced by-granting the application of such company, the supervisor and commissioner's, or a majority of them, may in writing signed by them, grant to such company a right to enter upon, take and use such highway or street for the purpose of tho construction, maintenance and uso of a plank road thereon, under tho provisions of the charter of such company; and upon filing such grant in the office of the township clerk, the company are authorized to use such highway for tho puiposo aforesaid. The amount received by the supervisor and commissioners for such grant, is directed to be expended in improving the highways, or in purchasing the right of way for highways^ in such township. The second section of the act to incorporate the Detroit and Erin Plank Road, authorizes the company to construct a plank road from the city of Detroit, on the Fort Gratiot Road (so called) twelve miles to the township of Erin in the county of Macomb, with the privilege of extending the same to the village of Utica, in said county. Section four authorizes the company, when duly organized, to enter upon and take possession of so much of said Fort Gratiot Road as lies between the said city of Detroit and the township of Erin, in the county of Macomb, and proceed to construct and maintain thereon a plank road” By the sixth section, the provisions of an act entitled “ A.n act relative to Plank Roads,” approved March 13th, 1848, shall be deemed a part of this act of incorporation.

The difficulty which presents itself, arises out of an apparent conflict between the provisions of section 14 of the general plank road act, and the 4th and 6th sections of the act incorporating the company. It is conceded that the Fort Gratiot road is a public highway, and unless the 4th section of the act of incorporation grants to the company the right to use that road for the purpose of constructing a plank road, then the act of the company in assuming to use it for that purpose without a grant or release from the supervisors and commissioners of the township.s through which it passes, is in direct violation of section 14 of the general act. The object and design of the general act is sufficiently obvious. In granting acts of incorporation to plank road companies, there were certain general provisions which the Legislature intended to apply to all; and by embodying these provisions in one act, and making that act as in section 6, part of each special act of incorporation, great labor and expense would be saved. By making the general plank road law a part of the act incorporating the Detroit & Erin Plank Road Company, the Legislature in terms declare, that the 14th as well as every other section of the act, shall constitute part of the special act of incorporation. And yet, it is difficult to imagine that the Legislature designed embodying a provision of the general law, entirely inconsistent with the rights conferred by section 4 of the special act. If section 6 is to receive a liberal construction, then effect cannot be given to section 4, which authorizes the company in dear and intelligible language, “ to enter upon, take possession of, so much, of the Fort Gratiot road as lies between the city of Detroit and the township of Erin, in the county of Macomb, and proceed to construct and maintain thereon a plank road.” This section imparts an authority to enter upon, and take possession of, the Fort Gratiot road, without requiring the assent of the local officers of the townships through which it passes. It is a cardinal rule that in the construction of a statute, effect is to be given, if possible, to every clause and section of it; and it is the duty of Courts, as far as practicable, so to reconcile the different provisions, as to make the whole act consistent and harmonious. If this becomes impossible, then we are to give effect to what was manifestly the intention of the Legislature, although in so doing, we may restrict the meaning or application of general words. Upon an examination of the numerous plank road incorporations, erected contemporaneously with the act in question, we find four, containing a provision similar to that found in the 4th section of the act incorporating the Detroit & Erin Plank Road Company. By the terms of their respective charters the plank roads authorized to be constructed, are located on military roads, constructed while Michigan was a Territory, by the government of the United States. As the same provision is not embraced in the numerous other charters granted for the construction of plank roads, it would seem to be a fair inference that the Legislature intended to draw a distinction between plank roads constructed on these military roads, and other plank roads whose location, after fixing upon the points of commencement and termination, was left to the judgment and discretion of the companies by which they were controlled. It may be asked, why a distinction is made between the use of these highways and other highways, for the purpose of constructing plank roads ? It may be difficult to give a reason entirely satisfactory; yet, I think one may be found, in the fact that these military roads were constructed at the expense of the general government, and of course without burdening the people residing in the several townships through which they pass, with taxation. It would seem reasonable, where the Legislature authorize established highways to be used for the construction of plank roads, that the people upon whom was cast the burden of their construction, should be paid such sum as may be deemed just, by the plank road companies to whose benefit they inure.

The clearing, grubbing and grading of the road constitutes an important item in the construction of plank roads, and it is but right when incorporated companies avail themáelves of the use of highways constructed at the expense of the public, that they should restore to that public the sum expended for their benefit, or such other sum as may be reasonable, to the end that the amount thus restored may be either used in the repair of highways in then respective townships, or in the laying out new ones, as provided by the general plank road law. A survey of the whole legislation on the subject of plank roads, shows very conclusively, that the adoption of the fourth section of the act incorporating the Detroit and Erin Plank Road Company was not accidental, but was incorporated intentionally, and probably for the reason to which I have adverted. The circumstance that a similar provision appears in the charter of every other company authorized to construct a plank road over and upon the military roads, and the additional fact that it is not to be found in the numerous charters granted at or about the same time to other companies, would seem to indicate that the Legislature contemplated the application of the 14th section of the general law to one class of roads, but specially provided against its application to another class. Again: the views I have expressed are justified by a careful examination <jf the phraseology employed by the Legislature in the 4th section of the defendant’s charter. By the 2d section, the company are authorized to extend their road to Utica in the county of Macomb, and yet the 4th section authorizes them to enter upon and take possession of so much of the Fort Gratiot Road, as lies between the city of Detroit and the township of Frin. The right thus to take possession of a certain portion of a particular highway, excludes the idea that they may take possession of, or use any other highway for the constructing of their road, unless authorized to do so, under the provisions of the 14th section of the general law. We must presume from this provision, that the Legislature intended precisely what the language of the section imports: that in respect to the public highway known as the Fort Gratiot Road, the company were authorized to use it for the purposes of their plank road, without any grant or release^ from the township authorities, but that in respect to other highways which they may use, such grant or release is required to be obtained. The 14th section then, of the general act, which must he considered as grafted upon the defendants’ charter, is not rendered entirely inoperaative, hut its application is merely restricted in such manner as that MI effect may he given to other parts of the act, and to the manifest intention of the law makers.

The 6th section of the act incorporating the Detroit & Erin Plank Road Company, should not, therefore, receive a literal construction, but ■should he so far restricted in its operation, as to harmonize its provisions with other provisions of the law with which it stands connected. Give to it the restricted meaning obviously intended by the Legislature, and no serious conflict arises. Full effect is given to the 4th section, and to every clause and section of the general plank road law, except 'that the words “public highways,” as used in the 14th section, are restrained in such manner as not to embrace certain highways, distinguished from all others, from the fact that they were constructed by the general government, without imposing any burdens upon those for-whose use and convenience they were constructed. In other words, Ml force is given to the general law applicable to plank roads, except in so far as it conflicts with the provisions of a special law, limiting and controlling the meaning and application of general terms, so as to cany into effect the intention of the Legislature.

Upon the whole, we entertain no doubt upon the question presented for our advice, and direct that it he certified to the Circuit Court of the-county of Wayne, as the opinion of this Court, that the motion for an injunction should be denied.


source: Caselaw Access Project

author: By the Court, Pratt, J.

license: Public Domain

text:
    Van Dyke et al. vs. Davis et al.

    Where a defendant by bis answer admits the ease made by the bill, and then sets up some new and independent matter, by way of avoidance, the answer is not evidence in support of such new matter, which must be proved*

      The compromise and settlement of an asserted claim involved in legal controversy, be it never so doubtful, constitute a sufficient consideration for the settlement, and for any obligations given by one party to the other in consummation of such settlement.
    On the execution of a mortgage the following receipt was given: “Rec’d. of Delos Davis, hia bond and mortgage, which are in full for the purchase of all the interest held by Solomon Mann for Messrs. Lockwood & Co., of New York, in the Farmington Mill property and debts, supposed to be all the interest of H?nry Comstock, and assigned by him to said Mann; formal conveyances to be made by said Comstock and Mann to said Davis; we to hold said bond and mortgage without attempting to enforce the same until said conveyances are made; said Davis in che mean time to have possession. Oct. 13, 1846. Van Dyke & Emmons.” A bill was filed to foreclose the mortgage. Davis in his answer, by way of defense, set up the receipt and averred that no deed or deeds were delivered or offered to him before filing the bill. It was proved that the conveyances wore made out and in tho possession of Van Dyke & Emmons, before the bill was filed. Held, that this was a sufficient performance of the agreement on their part, until there was a demand made of them by Davis, anda refusal to deliver them, as VanD. & E. in that particular matter, wero acting as the attorneys of both parties.
    A defendant can defend a suit only on the grounds set up in liis answer.
    Appeal from the Decree of the Circuit Court of Oakland County; In Chancery. The bill in this case was filed by the complainants to foreclose a certain mortgage, and is in the usual form, setting out and alleging the execution and delivery by Davis, one of the defendants, of four notes and a bond for the payment of some $2,100; also the execution and delivery of a certain mortgage, as security for the payment thereof, by both defendants, &e.
    The complainants further allege, that fifteen hundred dolíais of the amount specified, was to secure a debt due to Joseph Arnold, one of the complainants and assignee of Lockwood & Co., of the city of New York; that said notes and mortgage, so far as the amount due to said Arnold, were executed and delivered to Van Dyke & Emmons, in trust for him, and that accordingly, they on the 22d day of October, 1846, assigned to him that amount by an assignment endorsed, on said mortgage, &c.; .concluding with the usual averments and prayer.
    The defendants jointly and severally answer the bill, admitting the execution and delivery of the notes, bond and mortgage; and that the mortgage was duly executed and recorded, &c. They then set up and aver, by way of defense, that Solomon Mann, as assignee of Henry Comstock, claimed to be the owner of one-third part of the mortgaged premises, under some assignment or conveyance from Comstock; that the claim of Mann to one-third part of the premises, was the subject matter of a suit in chancery, wherein said Delos Davis was defendant; that the complainants, Vandyke & Emmons, as the attorneys or solicitors of Comstock and Mann, represented that Comstock or Mann, or both, owned one-third of the premises; that in order to put an end to the suit and extinguish the title of jUomstoek & Mann, it was agreed that they should convey to Davis their interest, which agreement was founded on the supposition that Comstock or Mann had such an interest in the premises, and that pursuant to such agreement, the notes, bond and mortgage were executed and delivered to the said Van Dyke & Emmons; that they had since been informed that neither Comstock or Mann at the time, had any interest in the premises, and that the representations were erroneous and made under mistake or misapprehension. The defendants then aver that Van Dyke & Emmons executed and delivered to Davis a paper writing in these words:

      “ Received of Delos Davis his bond and mortgage, which are in full for the purchase of all the interest, held by Solomon Mann for Messrs. Lockwood & Co., of New York, in the Farmington Mill property, and debts, supposed to be all the interest of Henry Comstock, and assigned by him to said Mann. Formal conveyance to be made by said Com-stock & Mann to said Davis. We to hold said bond and mortgage without* attempting to enforce the same until said conveyances are' made. Said Davis in the meantime to have possession.”
    “Vandyke <& Emmons.”
    “Oct. 13th, 1846.”
    On setting out this instrument, the defendants aver that no deed or deeds were delivered or offered to said Davis before filing the bill, conveying any interest in the premises, and pray that the notes, bond, and mortgage may be declared void, &e.
    To such answer the complainants filed a general replication. Some proofs were taken in the ease on both sides, which will sufficiently appear in the opinion of the Court.
    The decree in the Court below was for the complainants, and in the usual form.

      Van Dylce & Emmons, for complainants.

      No person appeared on the hearing, for defendants.
   By the Court, Pratt, J.

From a full and careful examination of the transcript sent up from the Circuit, no valid ground for the appeal can bo discovered either in the proceedings or in tíre decree; and on the hearing in this Court, no person appeared on the part of the defendants, to point out any. It is true, that since the case has been under advisement, a paper purporting to be a brief on their behalf, has been delivered; and if the author did not intend to have it read, nor his grounds of error understood, he has been extremely fortunate in carrying out and consummating such intention.

The execution and delivery of the notes and bond — the execution, acknowledgment, and recording of the mortgage, are, as set out in the bill, fully admitted by the answer. These instruments legally import the considerations which they severally express; other proof of consideration was therefore unnecessary;hence, the admission by the answer, established prima facie, the case made by the bill, and legally entitled the complainants to their decree in the Court below, unless the defendants, by them special defense, have either defeated or avoided it. Whether they have or not, is the main question to be determined. Their admission of the execution and delivery of the notes, bond, and mortgage, was so far responsive to the affirmative allegations contained in the bill; but the special matter set up in the answer, independent of these admissions, by way of defense, is not responsive to anything stated in the bill; and not being so, the defendants cannot without proof, avail themselves of any benefit, otherwise to be derived from it, although it constituted an equitable defense to the complainants prima facie case. The rule has been long and well settled, that where the defendant by his answer admits the case made by the bill, and then sets up some new independent matter, by way of avoidance, the answer cannot be evidence in support of such new matter, but must be proved, (Att'y Gen'l vs. Oakland County Bank, 1 Walker Ch. R. 90; Schwarz et als. vs. Wendell, Ib., 267; 2 John Ch. R., p. 90, and cases there cited; 1 Barlour Ch. Pr., 143; 4 Paige Ch. R., 507.) In Beckwith vs. Butler, (1 Washington R., 224,) which was a case where the complainant filed a hill against the defendant as administrator, for distributive shares of the intestates estate; to which the defendant set up in his answer, as a defense, a gift from the intestate of a certain bond, which formed the .principal part of the personal estate; the allegation not being sustained by proof, the Chancellor directed the defendant to account for the proceeds of the bond. From this decision the defendant appealed, and the president Judge, in delivering the opinion of the Court, affirming the opinion of the Chancellor, says: “The answer of a defendant is not .evidence, where he asserts matter in opposition to the complainant's demand. In such case he is as much bound to establish it by testimony as the complainant is to sustain his bill.”

In the case under review, the alleged representations of Van Dyke & Emmons, and which constitute the fiist and principal ground of defence set up in the answer, are not proved, and no attempt appears to have been made, on the part of the defendants for that purpose. But what is this first ground of defense ? It is, that Mann, as the assignee of Comstock, claimed an interest in the premises, and which was the subject matter of a controversy in chancery; and that in order to put an end to the same, and extinguish Mann’s asserted title, and as a consideration for certain outstanding debts, defendant Davis agreed to pay the sum specified in the notes and bond, and gave the mortgage executed by himself and Botsford, the other defendant, as security for the payment thereof; such is the substance of the matter stated. True, the defendants say that Van Dyke & Emmons acted as attorneys or solicitors for Mann, and represented that he had an interest in the premises; but they do not charge these representations to have been .fraudulently made, or to have been any other than statements of attorneys or solicitors, in reiterating the assertions of their- clients touching the pending controversy. If all the special allegations of the defendants had been proved, they would not have constituted any real defense to the complainants’ case, but would show a valid consideration for the obligations and mortgage — a consideration which the defendants would ■be estopped from controverting, either at law or in equity, except upon the ground of fraud. It is a principle well established that the compromise and settlement of an asserted claim, involved in legal controversy, be it never so doubtful, constitute a sufficient consideration for the settlement, and for any obligations given by one party to the other in consideration of such settlement. ( Weed et al. vs. Terry, 2 Douglass R., 344.)

The defendants proved a number of deeds; copies of which were made exhibits, for the purpose of showing title out of Mann at the time of the settlement. This proof was taken under objection, and is clearly irrelevant under the compromise and settlement, there being no fraud in the case. The deeds did not tend to show a want of considersideration, and if they proved title out of both Mann and Comstock, from the Government down to the last grantee, that would not conclusively prove that neither had any claim to or interest in the premises, as they, or either of them, might have had some right or interest therein, originating in various ways, and which could have been sustained at law or in equity, without formal conveyance therefor on record; but it is enough that defendant Davis so far recognized the validity of Mann’s 'asserted claim to a portion of the premises, as to compromise and settle the suit in chancery involving the same, and agreeing to pay a certain sum to extinguish it.

The receipt of Yan Dyke & Emmons is introduced in evidence on the part of the defendants, as a bar to the foreclosure of the mortgage, on the ground that the deeds from Comstock & Mann were not delivered to Davis before filing the bill. By that-receipt Yan Dyke & Emmons acknowledge the reception of the bond and mortgage, stating the consideration, and then say, “formal conveyances are to be made by Comstock & Mann to Davis, and that they are not to attempt the enforcement of the bond and mortgage until they are made.” Can this instrument have the effect to bar the foreclosure ? It is true that the defendants in their answer allege that no deeds were delivered or offered to Davis before filing the bill; but this allegation is not the negative of any agreement contained in the receipt — “ conveyances to be made,” is the language of the receipt. Making and delivering implies, as well in legal as in-common parlance, two distinct things tobe performed; and men are not ordinarily required in performing their engagements, to-do any more than they have agreed to do. But it is in evidence that the conveyances were made, and in the possession of Yan Dyke & Emmons before tbe bill was filed. This, in equity and in view of tbe circumstances, ought to be regarded as a sufficient performance of the agreement on their part, until demand and refusal to deliver; as they in that particular matter, were acting as the agents of both parties. There is, however, some evidence in the case, showing that the conveyances were in fact offered to Davis before process of subpoena to answer was served upon him. In Badger vs. Phinny, (15 Mass. R., 340,) which was an action of Replevin, the writ was delivered to the officer before a demand was made for the goods, and to which an objection was raised. The Court in deciding the question say, “it is a sufficient answer to the objection, that if the defendant had delivered the goods upon demand, there would have been no necessity for serving the writ.” In Seaver vs. Lincoln, (21 Pick. R., 269,) the principle is re-affirmed, and tho case of Badger vs. Phinny, referred to in support of the decision. It is undoubtedly a correct principle, and just in practice, as it can never be productive of any injustice to a defendant. Independent of this principle, there is evidence in the case which puts this ground of defense at rest. H. R. Walker Esq., testifies that long after the execution of the bond and mortgage, Davis stated to him that he had made an arrangement with Yan Dyke & Emmons to pay the mortgage, and deshed from him some assistance for that purpose, and that he did assist him to the sum of one hundred dollars, which was paid over to Yan Dyke & Emmons, and applied on tho mortgage. This fact alone, if not prima facie evidence of waiver of actual delivery of the deeds, furnishes, at least, some evidence to show that he did not so construe the agreement contained in the receipt, as to make an actual delivery obligatory, or a condition precedent to the payment.

The defendants can only defend the suit on the grounds set up in their answer. (11 Vesey, 240; 12 Ib. 480; 6 John R., 565; 3 Wend. R., 584.) The reason of this rule is obvious, and in accordance with fundamental principles, applicable to pleadings and trials. If the matters set up by the defendants were sufficient to bar the complainants in their suit to foreclose the mortgage, they are not sustained by proof; hence, under the rules referred to, the defendants are left without any defense in the case, on either ground.

The answer being verified by the oath of the defendants, makes no difference as to its effect. The complainants expressly waived an answer on oath by their bill; where the oath is thus waived, the answer can have no greater force than it would have without oath. (R. S., 359, § 31; 1 Barbour Ch., P. 144; 4 Paige Ch. R., 507.) Chancellor Walworth, in the case last referred to, says: “ Where an answer on oath is waived, the complainant, as a pleading, may avail himself of admissions and allegations in the answer, which go to establish the case made by the bill, but the answer is not evidence in favor of the defendant for any purpose.”

The decree is affirmed, and it is ordered that the same, with all things concerning it, be remitted to the Circuit, Corut for the county of Oakland, in Chancery, and that such proceedings be thereupon had, as may bonecessaiy to carry the same into effect; and that the complainants have costs, &c.


author: By the Court, Whippie, C. J.

text:
    Watkins et al. plaintiffs in error, vs. Atkinson et al. defendants in error.
    Whore under the provisions of chap. 122, It. S,, of proceedings for the collection of demands against ships, boats and vessels, a vessel was attached at the instance of a croditor and the notice to creditors to produce their claims published three months, and at the end of tho throe months and before any order of sale, the vessel owner procured her discharge by giving the bond provided in said chapter: Held, That creditors who failed to filo their demands with the proper officer within three months after first publication of notice, lost the benefit of the lien given thorn by section one of said chapter. '
    Error to Wayne Circuit Court.

      Emmons & Van By ice, for plaintiff in error.

      Joy, for defendants in error.
   By the Court, Whippie, C. J.

This is an action of debt originally brought in the County Court of the county of Wayne, by Atkinson & Godfrey against the plaintiffs in error, upon a bond given to release a steam boat attached by the plaintiffs below, under the provisions of chapter 122, R. S., relating to proceedings for the collection of demands against boats and vessels; the bond was dated July 28,1849. The claim of the plaintiffs was founded on an account for work and labor done, and materials found, in painting the steam boat St. Clair, and amounted to $271,15, upon which $100 had been paid. It appears from the record before us, that $220,53 was due the plaintiffs for work done and materials found, anterior to the 30th April, and that the balance being $50,62, accrued during the months of April, May and June, 1848. It was admitted at the trial, that on the 22d September, 1847, one Walcott, having a claim against the boat, proceeded to enforce its collection under the provisions of chapter 122. Process having been issued, the boat was seized and on the 5th November, 1847, notice, pursuant to the statute, was given to creditors to produce their claims; before the expiration of the three months allowed to creditors to exhibit their claims, about thirty persons filed claims against the boat; Atkinson <fc Godfrey however, failed to file the claim upon which the suit is brought. After the expiration of the three months’ notice required to be given to creditors, but before process directing a sale of the boat was delivered to the sheriff, namely, on the 19th February, 1848, the boat was bonded. On the 5th July, 1849, the plaintiffs instituted these proceedings for the purpose of enforcing the payment, as well of the claim which accrued anterior to Waleott’s attachment, as that which accrued subsequently thereto. To release the boat from this attachment, the bond upon which this suit is brought was given. The County Court gave judgment for the plaintiffs for the. sum of $54, rejecting that part of their demand which was an existing claim against the boat at the date of Walcott’s attachment. The cause was subsequently removed to the Circuit Court of the county of Wayne 'by writ of certiorari, and the judgment of the County Court was so far modified as to embrace the whole amount claimed by the plaintiffs. To reverse this judgment the defendants below prosecute this writ of error.

In the case of Bidwell et al. vs. Whittaker et al, (vide Manning R. 46 9,) decided by this Court at the last January term, we held that a lien attaches upon every ship, boat or vessel, used in navigating the waters of this State, ■where a cause of action accrues under the provisions of section 1, chapter 122 of the R. S. We also held, that the object of the statute was to afford a more certain and efficient remedy for the several causes of action specified in the first section, than was given at the common law. The proceedings under this chapter being new and extraordinary, a party seeking to avail himself of its provisions, must show affirmatively, that his claim is embraced within some one or other of the sub-divisions of the first section; and that the course pointed out by the statute for enforcing his claim, has been strictly pursued. It is contended by the plaintiffs in error that the failure on the part of Atkinson and Godfrey ■ to file the claim held by them, at the time of the institution of proceedings by Walcott, within three months from the publication of notice, worked a forfeiture of their remedy against the boat On behalf of the defendants in error, it is insisted that no such result follows, unless the boat is actually sold under the order of the Court, to satisfy the claims that may have been proved and filed, pursuant to the statute... The determination of the question thus presented, must depend upon, the construction to be given to sections 9 and 11 of chapter 122. The ■ 8th section directs that upon the return of the warrant, by virtue of' which any ship, boat or vessel may be seized, the officer who issued the same, shall immediately cause a notice to be published twelve successive • weeks, in a newspaper published in the county in which the warrant issued. Section 9 prescribes with much minuteness, what this notice shall contain. The second sub-division of the section is in these words: “It shall require all persons who claim to have any demands against such ship, boat or vessel, her tackel, apparel or furniture, under the provisions of this chapter, to deliver an account of their respective claims and demands, to such officer, within three months after the first publication of such notice, or that their remedy against such boat or vessel will be forfeited? Section 11 provides that “all liens under this chapter, upon the property so seized, an account of which shall not be presented to the said officer within the time limited in the notice, shall cease? It is admitted that Atkinson and Godfrey had, at the time Walcott commenced his proceedings, a claim or demand against the boat; and that such claim or demand was a lien upon the boat, within the meaning of the 1st section. It cannot be urged that there is any ambiguity in the words used in either sections 9 or 11. No language could express more clearly the idea intended by the Legislature. These provisions being thus clear and unambiguous, and admitting of but one .interpretation, the literal sense will prevail, unless it is obvious from a survey of the whole act, that by such a constr uction the intention of the Legislature would be defeated.

The policy of the act has already been stated, and it is argued that 'if full'effect is given to the strict letter of the law, this policy would in some degree he frustrated. If it shall appear from a view of the whole and every part of the act, that its leading object would be defeated by the construction contended for by the plaintiffs in error, then it will become our duty so to control or qualify tbe language of sections 9 and 11, as to accomplish the object intended by tbe Legislature. The principal argument relied upon by the defendants in error, in support of their views, is, that it is clearly inferable from the context, that the remedy given by the. statute is not forfeited, as contemplated by section 9, nor does the lien cease, as expressed in section 11, except in cases where the boat is actually sold under an order of Court; that where tbe boat is bonded and the lien discharged, the persons who may have proved their claims, necessarily look to the security which the bond affords for the payment of their claims; and that other claimants who failed to prove their demands, may proceed to enforce them in error, in the same manner as though the boat or vessel has never been seized. I have given to the statute a very careful examination, and am unable to agree with the learned counsel for the defendants in error, that sections 9 and 11 will bear the construction for which he so earnestly contends. No such intention as that attributed to the Legislature, can, I think, be fairly deduced, either from tbe words of the act or its policy.

It wds said that no reason could he urged, why a boat after it had been discharged from a lien, should not he liable to a second seizure at the instance of creditors who may have neglected to present their claims within the time limited by statute. I think a very cogent one may be offered. As a lien attaches where a right of action accrues for any of the causes specified in section 1, it follows that the lien will be perpetuated until the boat is bonded, or the debts owing by tbe ship, boat or vessel are discharged. This fact operates as a most serious restraint upon the free disposition of the class of property to which these liens attach. We cannot think that the Legislates in the exercise of enlightened views of policy, intended to perpetuate indefinitely, liens which would render it unsafe or hazardous for our own citizens or the, citizens of other States to purchase property of this description. The constant apprehension that a boat or vessel may be burdened with liens created by a foreign law, would render their sale next to impossible in the ports of another State, into which she may he borne in the prosecution of her voyage. The' same difficulties, though in a less degree, would be experienced in effecting a sale in the State by whose laws the lien is created. There is then, wisdom in the provision which declares the circumstances under which the remedy given by the statute shall he forfeited, and fixes the period at which liens shall cease.

As the commerce of the lakes increases, policy will probably suggest the necessity of incorporating in our statute a provision contained in the New York statute (from which ours was borrowed) which declares, that “ when the ship or vessel shall depart from the port at which she was when such debt was contracted, to some other port within this State, every such debt shall cease to he a lien after the expiration of twelve days after the day of such departen; and in all cases such lien shall cease immediately after the vessel shall have left the State.”

But it is next insisted, that under the construction contended for by the plaintiffs in error, claimants may lose the benefit of their liens, before the expiration of the period limited by the statute for presenting their demands. To sustain this argument, it was suggested that a vessel seized to-day, might be discharged to-morrow, upon executing the bond required by section 13, and that the only individual who could derive any benefit from the proceedings would he the claimant by whom they were instituted. I do not think this construction warranted by any provision to bo found in the statute. Courts in administering this law would give to each clause and sentence, such an interpretation as would secure to all claimants the full benefit of the remedy which the statute has provided; they would not declaro that remedy forfeited until all persons for whoso benefit it was intended, have had an opportunity, under the Oth section, of filing their respective demands, and enforcing their liens in the manner, and within the time prescribed by the statute. This view is strengthened by the language of the íth section, which declares that “ whenever any warrant shall be issued, no other warrant shall issue against the same ship, boat or vessel, unless the first warrant be suspended.” It is very clear, that the bonding of the vessel doe» supercede, or suspend the warrant, and I see no reason why clamante who have had no opportunity of filing their demands in the three months, may not avail themselves of the remedy which the statute' affords, and enforce their liens. Comts would not so construe the statute as to defeat the objects for which it .was enacted, but would give to it such a construction as would most effectually secure to the class of creditors whose rights it was intended to protect, the full benefit of its provisions. Upon a full view of the whole statute, and guided by those maxims laid down in the boohs, for its interpretation, I am unable to perceive how this Court can annex a proviso to two sections so plain and unambiguous in their terms.

If the language of these sections was uncertain, and a literal interpretation would lead to injustice, contradiction or absurdity, or if such interpretation would defeat the real intention of the Legislature, deduced from a view of the whole statute, then we might be permitted to enter the wide field of conjecture, and enlarge or restrain the strict letter in such manner as to avoid these consequences I have stated, and effectuate the intention of the law makers. I am deeply impressed with the belief, however, that the Legislature meant, what they have in clear and explicit language expressed; and that we cannot, without doing violence to every sound rule of interpretation, make sections 9 and 11 say, that in the event the boat is not sold, the remedy shall not be forfeited and-that the lien shall not cease, when the Legislature have unqualifiedly said such remedy shall be forfeited, and such lien shall cease. Against such an exposition of these sections no valid objection can, I think, be urged by the defendants in error. The law had provided for them a new and extraordinary remedy for enforcing their demand; and only exacted of them reasonable diligence in order to secure its benefits. An examination of the statute would have told them in language frpe from all doubt and obscurity, that unless that demand was filed with the proper officer within three months, they would not only forfeit all right to the remedy, but lose the benefit of the lien given by section 1. If they failed in conforming their action to the plain directions of the law, ■the loss, if any happens, is chargeable to their own folly.

The judgment of the Circuit Court, so far' as it purports to modify the judgment of the County Court, is erroneous, and must be reversed.


author: By the Court Geeen, J.

text:
    Perkins vs. Spaulding.
    The omission in a justices* execution of the year in winch the judgment was rendered, will ’ not vitiate the execution, it being in all other respects regular. »
    A constable levied on twenty-five acres of wheat on the ground, on the farm of C., in tho . township of Dover, then occupied by the defendant in the execution, and made an indorsement of the levy to that effect, on the execution, with tho exception of the township, which by mistake was stated to be Madison. Tho mistake was hold not to vitiate the levy.
    A constable’s notice of sale of property on an execution, described the property as twenty-five acres of wheat on the ground, on which tho constable had levied, by virtue of an execution from ajustices* court, and which he should expose for sale at public vendue on a certain day, at the Whig School House Corners, in the township of Dover, but did not state the name of tho plaintiff or defendant, in the execution; and the sale took place within view of the wheat, and about thirty or thirty-five rods from the Corners named in tho notice, but at a point from which the constable could be plainly seen by persons who might come to the Corners for the purpose of attending the sale; and the wheat, which was in three adjoining fields, separated only by fences, was sold as one parcel. It was held,
    1st. That it was not necessary the notice of sale should state the property advertised, was tho property of the defendant, or who the defendant in the execution was.
    2d. That the sale was made substantially at the place appointed, although it was not made at the precise point mentioned in the notice.
    3d. That it is the duty of a constable to sell the property in such lots or parcels as to command the highest price, and that if he wilfully sacrifices the property by disregarding his duty, ho is liable to the party injured; but that he has a largo discretion and is not required to sell each article separately; and that as there was no apparent reason upon the record for supposing the wheat would have sold for a better price in parcels, the sale was good.
    Error to Lenawee Circuit Court.
    This was an action of trover, brought by the defendant in error against the plaintiff in error, in the Lenawee County Court, to recover the value of a quantity of wheat. The cause was tried in that Court without a jury, and a judgment rendered in favor of the defendant therein, for his costs of suit. The plaintiff below conceiving himself aggrieved, by the judgment of the County Court, removed the cause by certiorari into the Circuit Court for the county of Lenawee, where the judgment of the County Court was reversed with costs, and the cause remitted to the County Court for a new trial. The defendant helow thereupon removed the record into this Court by writ of error.
    The record shows the following facts: On the 20th of December, 1847, Spaulding, the plaintiff' helow, and one Barnard, recovered a judgment before a justice of the peace, against William Baker, for the sum of $29,08 damages, and $2,12, costs of suit; and on the 7th of January, 1848, the plaintiffs caused an execution to he issued upon such judgment, and delivered to a constable to he executed. The execution was in the usual form, except that it did not set forth the year in which, the judgment was rendered. On the 8th day of January, 1848, the constable levied upon about twenty-five acres of wheat on the ground, on the farm of Veeder Colgrove, in the township of Dover, then occupied by the defendant, and made an indorsement to that effect upon the execution, excepting that he by mistake, inserted Madison instead of Dover, in the indorsement, as the name of the township. On the 18th day of July, 1848, the wheat was sold by the constable and bid off by Spalding, the defendant helow being present and claiming to be the owner of the wheat. The notice of sale described the property as twenty-five acres of wheat on the ground, upon which the constable had levied by virtue of one execution issued from a Justice’s Courts and which he should expose for sale at public vendue on the day specified, at the Whig School House Corners in the township of Dover, but did not set forth the names of the plaintiffs nor of the defendant in the execution.
    The sale took place within view of the wheat, and about thirty or .thirty-five rods from the Corners specified in the notice, but at a point from which the constable could he plainly seen by persons who might have come to the Comers for the purpose of attending the sale. Portions of the wheat were in three adjoining fields, separated only by fences, and the whole was sold as one parcel, with the exception of thirty-five shocks, which were reserved for Baker in a particular comer of the field specified. After the sale, Baker harvested the wheat for Perkins, the defendant helow, and Perkins converted and disposed of it to his own use.

      The record further shows, that on the first day of November, 1847, Baker executed to Perkins an instrument in writing, purporting to be an absolute bill of sale of all his interest in the wheat, being two-thirds of the crop, in consideration of the sum of sixteen dollars, which instrument was filed with the township clerk of Dover, as a chattel mortgage, on the 20th of December, 1847, the same day on which the judgment was rendered against Baker in favor of Spaulding and Barnard. The actual consideration for the execution of the bill of sale was, that Perkins, about the time of its execution, signed a note with Baker to one Paulding, for the sum of sixteen dollars, with interest, payable in October of the following year. Under that instrument, Perkins claimed to be the owner of the wheat.
    At the time of the sale, and immediately after the wheat was bid off by Spaulding, he, Spaulding, offered to give up to Perkins the $16 note, and at the same time tendered to him the amount of it in money; but Perkins refused to accept either, insisting that he was the absolute owner of the wheat.

      Ward <& Tabor, for plaintiff in error; cited Gowen Trea., 1075, 1076; Edwards Trea., 134; 14 J. A, 353; 8 JA, 338; 5 lb,, 346; 18 lb., 356; 13 lb., 102; 17 lb., 116; 1 J. Oa., 287, and I Binney, 61.

      Beaman é Gooley, for defendant in error.
   By the Court Geeen, J.

It seems very clear that the bill of sale was, in effect, a mortgage upon the wheat, to indemnify Perkins against his liabilifyupon the note to Paulding; and there can be no doubt of the sufficiency of the tender if such tender was necessary, and consequently, no doubt of the right of Spaulding to recover in the County Court, unless the sale of the wheat on the execution was void, for irregularity.

The execution contains all the substantial requisites specified in the statute. (I?. S., Gh. 93, § 106.) It should unquestionably recite the judgment, so far as clearly to identify it, for the protection of the defendant. This execution recites the names of the parties, plaintiffs and defendant, the amount of damages and of costs, the day of the month when, and the justice before whom the judgment was rendered. The mistake in the name of the township, made by the constable in indorsing his levy upon the execution, did not vitiate the levy. It described the property as being “about twenty-five acres of wheat on the ground on the farm of Veedor Colgrove, in the township of Madison, now occupied by defendant.” The testimony showed that the wheat sold was twenty-five acres on the ground, upon the farm of Veeder Colgrove, in the township of Dover, which the defendant in the execution occupied at the time of the levy, as' well as at the time of the sale, and that it was all the wheat then on the farm. *■ Had the wheat been sold by the o wner of it, by such a description, the sale would not have been held void for uncertainty, the mistake being clearly shown by the light of the surrounding circumstances.

The statute requires the constable, after indorsing his levy upon the execution, to give public notice, by advertisement, signed by himself, and put up at three public places in the city or township where the goods and chattels shall he taken, when and where they will he exposed for sale, and that such notice shall describe the goods and chattels, and shall be put up at least five days before the time appointed for the sale. (S. S., Ok 93, § 120, 121.)

These are all the requirements of the statute in regard to notice, and it is not claimed that they have not been literally complied with in this case. But it is insisted that the notice ought to have stated that the property advertised was the property of the defendant in the execution, or who the defendant in the execution was, or whose property it was that was advertised to be sold. It would he very proper to specify the name of the defendant in the execution, in the notice of sale, and it is SO' laid down by elementary writers; hut I am not aware that it has ever been held that the omission vitiated the sale.

*It is also objected that the sale was not made at the place appointed by tbe notice. This objection is not well taken. The sale took place within a few rods of the Corners specified in the notice, and in plain view; so that persons coming there to bid upon the property would not fail to see and recognize the officer at the point where the sale was made. The object and intent of the statute was not, therefore, violated, because the sale was not made at the precise point mentioned in the notice. It was made substantially, at the place appointed.

A further objection is made, that the wheat being in three separate parcels, could not he sold together, hut that each parcel ought to have been sold separately. This is not required by the statute. The constable is required to expose the goods and chattels to sale at vendue, to the highest bidder. It is his duty to sell the property in such lots or parcels as to command the highest price; and if he wilfully sacrifices the property by disregarding his duty, he is liable to the party injured. But he has a large discretion, and is not required to sell each particular article separately.

There is no reason apparent upon the record* in this case, for supposing that the wheat would have been sold for a better price in parcels. The interest sold was two-thirds of the crop, the purchaser being required to harvest and thresh the whole, and deliver one-third of it to Colgrove, while Perkins was present, forbidding the sale, and claiming .to he the owner of the two-thirds offered fórjale. Under such circumstances it may well he doubted whether the wheat would have sold as well in separate parcels; and if any sacrifice resulted from the sale as made, it was the fault of Baker and Perkins. I have examined the authorities referred to by the counsel for the plaintiff in error, and do not deem it necessary to cite them. They do not contain, so far as I can discover, any doctrine militating against the views herein expressed.

The judgment of the Circuit Court, reversing the judgment of the County Court, and remitting this cause to the County Court for a new trial, must be affirmed, with costs to the defendant in error.

Judgment of. Circuit Court affirmed.


author: the Court by Green, J say:

text:
    Smith vs. Brown et al.

    B. was indicted for perjury, in an answer to a bill in Chancery filed against ¡him by S., and was tried and convicted by a jury. S. appearedas prosecutor, but was not sworn as a witness on the trial, and B. moved in arrest of judgment and for a new trial, and before^ the motions were disposed of, died: Held, That the record in the criminal suit could not be used as evidence in the chancery suit to discredit the answer.
    .A defendant will not be allowed to depart from the defense set up in his answer, and to avail himself of another, however clearly he may be able to establish it.
    Appeal by complainant from a decree of the Court of Chancery dismissing his bill. The principal question in the case was one of fact, regarding the design and object of a deed executed by complainant to defendant, on which there was conflicting testimony, and a number of witnesses had been examined by each party. The only other questions noticed in the opinion of the court are, one respecting the admission of evidence, and another relative to the defence defendant might make under his answer.

      Stuart té MUler, for appellant.

      Gurney té Hammond, for appellee.
   Upon the questions noticed in the statements,

the Court by Green, J say:

Before the proofs were finally closed, the complainant offered in evidence a certified copy of an indictment against William B. Brown, charging him with perjury, in that portion of his answer relating to the character, and object of the deed from the complainant to Brown, and the execution and payment of the bond for $2000, as a full consideration for the deed, and of Brown’s trial and conviction by a jury thereon, and also of motions in arrest of the judgment, and for a new trial made upon the rendition of the verdict, which motions were reserved and held over for advisement by the Court, until the next term thereof. It was stipulated by the Solicitors that these proceedings might be read in evidence on the hearing of this cause, with the like effect as if the same had been proved before a master, under the rules of Court.

On the argument it was conceded that Brown died before the motions were determined, and no judgment was ever pronounced upon the verdict.

The object of introducing these proceedings was to discredit Brown, and destroy the effect of his answer, while it is contended on the part of the defendants that they are not competent, and can have no effect for that purpose. This presents an interesting question. It was but ‘little argued, however, upon the hearing, and no authorities were cited upon either side; nor have I been able to find any which seem to meet it precisely. In the case of the King vs. Boston, (4 East., 572,) the defendant had been indicted for perjury, alleged to be contained in his answer to a bill in equity; and on the trial the complainant was offered as a witness, and objected to as incompetent^ on the alleged ground that he was interested to procure a conviction, which might be made use of by him to influence the event of the suit in equity, and to obtain a perpetual injunction. The complainant was admitted as competent, and the defendant was committed; and the Court of King’s Bench, upon a rule nisi for a new trial, held that the complainant was properly admitted, on the ground that no use could be made of the conviction by him, in any case.

In the case of Bartlett vs. Pickersgill, cited by counsel in Rex vs. .Boston, the defendant having by his answer denied the trust, was indicted for perjury in that particular, and convicted on the evidence of the complainant, circumstances confirming that testimony, and proof by other witnesses of a declaration by the defendant. After-wards the complainant petitioned for leave- to file a supplemental bill, in the nature of a bill of review, stating this conviction. But Lord Keeper Henley dismissed the petition on the ground that no use could be made of the conviction for any purpose of the prosecution in his suit in equity. Some cases were also cited in which a contrary doctrine had been held, but the principle laid down in that case was considered by the Court of King’s Bench as .at that time well established. The complainant in this case appeared as the prosecutor of the indictment, and would unquestionably have been a competent witness upon the trial, though he was not used as such. If so, does the fact of his not being a witness on that trial, make the finding of the jury, evidence in his favor in this suit to destroy the answer ? Had judgment been rendered upon the verdict, this question would have arisen, but motions having been made in arrest of judgment and for a new trial, which remained pending and undetermined until the death of Brown put an end to the prosecution, I am unable to discover upon what principle -these proceedings can be regarded as evidence of the falsity of the answer. This Court is not put in possession of the grounds upon which the motion for a new trial was predicated, nor does it seem to me proper that we should look into the record for the purpose of determining whether the motion in arrest of judgment was well founded. The proceedings certified show that the Circuit Court held these motions under advisement, which evinces that they were not regarded by that Court as frivolous. In the meantime, Brown could not be regarded as a convicted felon, nor do the proceedings afford us any legal evidence of his guilt. The verdict of the jury would not at common law, render Brown incompetent as a witness on the ground of infamy, nor, I apprehend, can those proceedings be used to discredit his answer.

Another question which was made upon the argument, and strongly urged by the counsel for the defendánts, may more properly be disposed of before entering upon the discussion of the issue, as presented by the pleadings.. There was some evidence introduced, tending to show that the complainant executed the deed to Brown, instead of giving him & power of attorney, for the purpose of defrauding his creditors, and it was urged that for this reason the complainant was not entitled to relief. However good such a defense might have been, had it been set up in. the answer, it is sufficient to say that it is not put in issue by the pleadings. It is a well established and most salutary rule of the Court of Chancery, to found its decrees upon some matter put in issue between the parties by the bill and answer. James vs. McKernon, (6 J. R., 543,) Governeur vs. Elmendorf, (5 J. Ch. R., 79.) The complainant charges in his bill that the deed was intended to operate as a power of attorney between the parties, and that no consideration was paid or agreed to be paid by Brown. The answer fully denies these statements of the bill, and sets forth that on the contrary thereof, it was intended and understood to be an absolute conveyance, and that a good consideration was agreed to be paid, and was fully paid to the satisfaction of the complainant for the property embraced in the deed. No fact or circumstance is stated in the pleadings on either side, going to show that the deed was made to hinder, delay or defraud creditors, and it was therefore improper to introduce testimony for the purpose of establishing such a fact. A defendant cannot be allowed thus to depart from the defense set up in his answer, and avail himself of another, however clearly he may be able to establish it. It would operate as a surprise upon the complainant, and he could not be prepared to meet it.

Decree affirmed.


author: By the Court, Green, J.

text:
    Wilcox et al. vs. Kassick impleaded with another.
    Debt on judgment rendered by the Supremo Court of the State of New York. Plea, that at the time of the commencement of the suit and recovery of the judgment, and dining tho intermediate time, defendant was a citizen of the State of Michigan; that no process was served on him; that he had no notice of the suit, and that he did not appear therein or authorize any one to appear for him. Replication, that the record avers personal service, and appearance by attorney, and that defendant is estopped by the record. Demurrer and joinder. Held, That the replication was good, and that the demurrer was not well taken. Greek, J., in delivering the opinion of the Court, came to the following conclusions:
    First, That in an action in one State upon the judgment of a Court of general jurisdiction of another State, no plea or proof can be received in contradiction of any material fact appearing by the record, unless such plea or proof would be received in an action on the judgment in tho Court in which it was rendored.
    Second, That if the record shows a want -of jurisdiction, the judgment is a nullity.
    Tlúrd, That if the record does not show either that the Court had, or that it had not jurisdiction, the jurisdiction will bo presumed; but in such case, facts showinga want of jurisdiction may be alleged by plea, and if established arecovery be defeated.
    Fourth, That when the record shows the process was not personally served, and that the defendant did not appear in person in the suit, but that an attorney of the Court appeared for him and made defense, the authority of such attorney to appear will be presumed. Whether however, inasmuch as the authority of the attorney does not appear by the record, and might be denied without denying any fact directly stated in tho record, it may bo controverted, does uot seem to be settled.
    Another suit pending for the same cause of action inanother State is not a good plea in bar. A plea of the statute of limitations, that the plaintiff’s cause of action did not accrue within six years next before tho filing of the plaintiff^ amended declaration, is bad.
    Case reserved from Jackson Circuit Court. Tbe declaration which was in debt, contained four counts. The first count was on a judgment recovered in the Supreme Court of the State of New York, to which the defendant pleaded wul tiel record, and a special plea, setting forth that at the time of the commencement of the suit against him and the other defendant in the State of New York, and of the recovery of the judgment, he was a citizen of the State of Michigan; that no process ■was served on him and that he had no notice of the suit, and that he-did not authorize any one to appear for him, &e. To the first plea, the plaintiff replied, taking issue thereon; and to the second plea, that the. record avers personal service on defendant, and an appearance by R. S. Blannerhassett, as attorney, and that defendant was estopped by the record, &c.; to which replication defendant demurred, and plaintiff’ joined in demurrer.
    To the second and third counts, which were on a bill of exchange,, defendant pleaded in bar three pleas, viz: nil debet; a suit pending for the same cause of action in the Supreme Court of the State of New York; and actio non accrevit within six years next before filing amended declaration. The plaintiff demurred to the second and third pleas and defendant joined in demurrer.
    The fourth count was for goods sold, &c, Pleas, nil debet; and the statute of h'mitations, the same as to the second and third pleas above; demurrer and joinder.

      Kimball <& Sumner, for plaintiffs.
    Chapman, for defendant, Kassick.
   By the Court, Green, J.

The action in this case is debt, and the first count is upon a judgment rendered in the Supreme Court of the State of New York, in favor of the plaintiffs against the defendants. To this count the defendant Kassick, pleaded md tiel record, and also a special plea, setting forth that at the time of the commencement of the suit in New'York, and at the time of the recovery of the judgment, and during all the intermediate time, he was and has been, and that he still is a resident of the State of Michigan; and that he did not appear in person, or otherwise, and defend the suit in which the judgment was obtained, nor submit himself to the jurisdiction of the Court by any actual arrest in "said suit; or any notice thereof to him personally, or by any voluntary appearance in such suit, either in person, or by any attorney by him authorized in that behalf.

To the first plea the plaintiffs replied, taking issue thereon, and praying an inspection of the record by the Court. To the second plea the plaintiffs reply, setting forth that in and by the record of said judgment^ it is stated', averred, and shown, that the said defendants therein mentioned, were personally served with a copy of the declaration in said writ, together with a notice of a rule to plead therein, and also that it is in and by said record stated, averred, and shown, that the said defendants appeared and defended said suit, by R. S. Blannerhassett, their attorney therein; and they demand the judgment of the Court whether the said defendant ought to be admitted or received against the said record, to plead the matters set forth in said plea.

The defendant, Kassick, demurred to this replication, and the plaintiffs joined in demurrer. Thus the question is now distinctly presented to this Court, whether, in an action upon the judgment of a Court of general common law jurisdiction in a sister State, the record of such judgment, showing a personal service of the process by which the suit was commenced, and the appearance of the defendant by an attorney of the same Court, it is competent to contradict the facts which show jurisdiction of the person of the defendant, thus appearing on the face of the record.

By section 1 of article 4 of the constitution of the United States, it is declared that “ full faith and credit shall be given, in each State, to the public acts, records, and judicial proceedings of every other State; and the Congress may, by general laws, prescribe the manner in which such acts, records, and proceeding’s shall be proved, and the effect thereof.”

The act of Congress of May 26th, 1?90, provides the mode of authenticating the records and judicial proceedings of the State Courts, and declares that “the said records and judicial proceedings authenticated as aforesaid, shall have such faith and credit given to them in every Court within the United States, as they have by law or usage in the Courts of the State from whence the said records are or shall be taken.” Upon the construction of these provisions of the constitution and laws of the United States, depends the decision of this question.

From the adoption of the constitution and the enactment of the law before referred to, and prior to 1813, great contrariety of opinion prevailed in regard to it, in the State Courts. In the earlier cases in which the question was presented for decision in New York and Massachusetts, it was holden that judgments rendered by the Courts of other States were open to examination, and might he impeached collaterally, on any of the grounds which would have been available when the matter was first presented for judicial determination. See Bartlett vs. Knight, (1 Mass., 401;) and Hitchcock & Fitch vs. Aicken, (1 Caines, 460; 2 American Leading Cases, 551;) thereby placing such judgments, substantially upon the same footing as foreign judgments. A better consideration of the question gradually led to a sounder exposition of the constitution and act of Congress; and in the case of Bissell vs. Briggs, (9 Mass., 462,) decided in 1818, the Supreme Court of Massachusetts held that a judgment rendered in New Hampshire, against a citizen of Massachusetts, who was admitted to have entered an appearance and taken defense in the action, was conclusive of the subject in controversy in a suit brought on the judgment in Massachusetts.

The question as to the effect of a judgment rendered in a Court of record of one State, when sued on in another Court within the United States, was first brought before the Supreme Court of the United States, and elaborately examined, and finally settled in the case of Mills vs. Duryee, (1 Crunch, 481,) in the same year; since which time the question has frequently been presented to the United States Courts, in various ways, and in their decisions there appears to be no conflict. To these Courts, and especially to the Supreme Court of the United States, in which resides the power of ultimate determination of questions arising under the constitution and laws of the United States, we are to look for controlling authority in all cases of this nature, so far as their judgment has been promulgated. A careful examination of the casse in which this point has arisen, and been adjudicated upon in the federal Courts, will enable us satisfactorily to apply the ■ principles they establish, to the case before us.

The question in the case of Mills vs. Duryee, was, whether nil debel was a good plea to an action brought in the district of Columbia, upon a judgment rendered in a Court of record of the State of New York; and the Court held that it was not a good plea, but that the proper plea was nid del record, Mr. Justice Story, in delivering the opinion of the Court, remarks: “It is argued that this act” (the act of 26th May, 1Í90) “provides only for the admission of such records as evidence, but does not declare the effect of such evidence, when produced. This argument cannot be supported. The act declares that the record, duly authenticated, shall have such faith and credit as it has in the State Court from whence it is taken. If, in such Court it has the faith and credit of evidence of the highest ñatee, viz: record evidence, it must have the same faith and credit' in every other Court. Congress has therefore declared tho effect of the record, by declaring' what faith and credit shall be given to it. It remains then, only to inquire in every case, what is the effect of a judgment in the State where it is rendered.”

The case of Hampton vs. McConnel, (3 Wheaton, 234,) was decided in the year 1818; and Chief Justice Marshall delivered the opinion of the Court, as follows:

“ This is precisely the same case as that of Mills vs. Duryee. The Court cannot distinguish the two cases. The doctrine there hold, was that the judgment of a State Court should have the same faith, validity and effect in every other Court in the United States, which it had in the State where it was pronounced, and' that whatever pleas would be good to a suit thereon in such State, and none others, could be pleaded in any other Court in the United States.”

The case of Field vs. Gibbs & Gibbs, (1 Peters C. C. R., 156,) was an action of debt, in the Circuit Court of the United States for New Jersey, on a judgment of a Court of Common Pleas in Pennsylvania. Martin Gibbs, one of the defendants, pleaded specially that he had never appeared in, or had notice of the suit, &c. To this plea a demurrer was interposed, in which the defendant joined. It appeared by the record that both the defendants were attached in that suit, to 'answer the plaintiff, and that they both appeared by their attorney, and pleaded several pleas. Judge Washington, in his opinion in that case, remarks, that “to allow the defendant, (Martin Gibbs,) to show that he did not appear i^ the cause, or authorize any person to appear for him, would be to allow him to contradict the record;” and this the Court held was inadmissible. Tho Judge . cites and applies to that caso, the language of Lord Coke, that “ a record imports in itself such ineontrollable credit and verity, that it admits of no averment, plea or proof to the contrary; for otherwise there never would he an end of the controversy.” (Coke on Lit., 260.) The same doctrine was held by the same Judge in the case of Green vs. Sarmiento, (1 Peters, C. C. R., 74,) in the year 1810; and as early as 1Í94, the Circuit Court of the United States for the District of Pennsylvania, in the case of Armstrong vs. Carson’s. Executors, (2 Dallas, 302,) decided that nil debet was not a good plea, to an action of debt ón a judgment rendered in the. Superior Court of New Jersey. In the last named case, Judge Wilson insisted that no defense was admissible to an action on a judgment of another State, which would not have been available had the suit been brought in the State where the judgment was rendered.

In Jacquette vs. Hugunon, (2 McLean, 129,) decided in the Circuit Court of the United States, for the District of Illinois, in 1840, it was. determined that nil debet was not a good plea to an action on a judgment obtained in New York. The opinion of the Court in that case is very brief, and the doctrine is treated as well settled in the Courts of the United States. In the following year, the question whether it was. competent, by plea, to controvert the statement in the record of a judgment rendered in Massachusetts, that the defendant was served with process, or appeared in the suit, was presented to the same Court, in the case of Lincoln vs. Power, (2 McLean, 473,) and the Court decided it was incompetent. The Court say, “ the appearance of the defendant is a material fact, and so is the service of process. It is admitted that the allegations in a record which were not material nor traversable, are not conclusive on the parties. But the record is conclusive of all matters in relation to the judgment which were material, and which might have been traversed, and these cannot be contradicted.”

In the same Court and during the same term, the case of Westervelt vs. Lewis & Tooker was decided. That was an action of debt brought on a judgment obtained by the plaintiff against the defendants in the State of New York. The defendants pleaded: first, nil debet; second, that no notice was served on the defendants before the rendition of the judgment; to both of which the plaintiff demurred, and the defendants joined in demurrer. The Court sustained the demurrer, and in their opinion say, that when the fact that the Court had jurisdiction of the person of the defendant appears by the record, it cannot be controverted. “ As well,” say the Court, “ might any other fact in. the record be denied as this. The record is made out under the authority of the Court and purports absolute verity. As evidence, it can not be questioned. ' If, in making up the record, through the inadvertence of the Clerk a mistake has occurred, the only mode of correcting-it is-by application to the Court who gave the judgment, and who have a right at all times to correct clerical errors.” (2 McLean, 511.) The case of McElmoyne vs. Cohen, decided in the Supreme Court of the United States in 1839, (13 Peters, 312,) brought- again under review the provisions of the Constitution and act of Congress referred to, and the doctrine of the cases of Mills vs. Duryee, and Hampton vs. McConnell is there illustrated and affirmed.

With this array of harmonious decisions of the Courts of the United States before us, and with the concession on the part of the State Courts, that they are bound by the determinations of the Supreme Corut of the United States upon questions of this character, and that the decisions of the Circuit Courts of the United States are entitled to great respect, it would seem that the question now under consideration in this Court, ougkt to be considered as settled beyond dispute; but an examination of a few of the more recent decisions of the State Courts, will show that while some of them seem to have yielded a reluctant assent to the principles established in Mills vs. Duryee, and Hampton vs. McConnel, others have either boldly questioned their soundness, or adopted them with much qualification.

The ease of Starbuck and others vs. Murray, (5 Wend., 148,) was-decided in 1830. It was an action of debt on a judgment rendered in a Coiut of Common Pleas of the State of Massachusetts. The defendant pleaded specially, that the suit in which the judgment was rendered was commenced no otherwise than by attachment of certain goods and chattels, then being at Boston, in the State of Massachusetts; that at the time of the commencement of such suit, he was, and ever since had been, and still was a resident and inhabitant of the State of New York;, that no process of any kind had ever been served upon him in the suit, and that he never appeared thereto, in person or by attorney. To this plea the plaintiffs replied, that the defendant ought not to be admitted to plead, &c., “because the judgment record declares and avers, that at the term of the Court of Common Pleas at which the suit was commenced, the defendant appeared to the said suit; and this they are ready to verify by the record; wherefore,” &c.

This replication was demurred to by the defendant, and the plaintiffs joined in the demurrer. Thus the question was distinctly presented for adjudication, whether a fact stated in the record, showing jurisdiction of the Court over the person of the defendant, could be controverted by plea, a,nd the Court sustained the plea, controverting such fact. See also Borden vs. Fitch, (15 J. R., 121;) Andrews vs. Montgomery, (19 J. R., 162.) In Shumway vs. Stillman, (6 Wendell, 447,) the Court held, that in an action of debt brought on a judgment of a Court of Massachusetts, the defendant might deny the authority of an attorney who appeared for him in the suit in which the judgment was rendered, though the fact of such appearance was stated in the record. The Court say, in substance, that this is not a contradiction of the record, the authority of the attorney to appear, being no part of such record, and the appearance of the attorney being only prima fade evidence of his authority. Chief Justice Savage, in delivering the opinion of the Court, after an extensive review of the adjudged cases in the Courts of New York, Massachusetts, and of the United States, sums up the result as follows: “An examination of the cases results in the establishment of the following proposition: that the judgment of a Court of general jurisdiction in any State in the Union, is equally conclusive upon the parties in all the other States, as in the State in which it was rendered. This, however, is subject to two qualifications: T. If it appear by the record that the defendant was not served with process, and did not appear in person or by attorney, such judgment is void: and 2. If it appear by the record that the defendant appeared by attorney, the defendant may disprove the authority of such attorney to appear for him.” This case was followed • by several others, in which the Supreme Court of New York gradually receded from the general doctrine, that any fact might be pleaded in opposition to the record, showing a want of jurisdiction over the person of the defendant, as laid down in broad terms in the case of Starbuck vs. Murray, and supported with much earnestness by Mr. Justice Marcy, (23 Wendell, 303; 1 Hill, 597.) And though the question has not been definitely settled in that State, yet in Read vs. Pratt, (2 Hill, 64,) decided in 1841, Judge Cowes, in delivering the opinion of the Conrt (Bronson, J. dissenting) says: “The appearance of an attorney in a Court of record, whether with or without actual authority, is a good appearance as to the Court, arid so far binding upon the party, that he cannot question its validity in a collateral way. Constitutionally we aro bound to give full faith amd credit to a record or judicial proceeding in a neighboring State, which asserts-the fact of an appearanco by an attorney in one of its Courts. That measure of faith could hardly he called full, which should allow to be raised collaterally, a question against which our own records would conclude. It is by no means dear, therefore, that the party aggrieved should not be turned over to the foreign Conrt for relief.”

This language shows pretty clearly what was then the opinion of the judges of that Court, and that if the question had heen distinctly presented, they would have 'decided that no material fact stated in the record, could be controverted by plea.

The Supreme Court of Pennsylvania, in the case of Benton vs. Burgot, (10 Serg. & Rawle, 240,) in 1823, decided that pleas to an action on the judgment of a Court of a sister State, sotting up fraud, imposition and mistake in obtaining it, and a want of consideration, were had on demurrer. Duncan, Chief Justice, iu delivering the opinion of the Court in this caso, refers to the 'opinion of the Supreme Court of the United States in the eases of Mills vs. Duryee and Hampton vs. Mc-Conuel, giving a construction to the provisions of the Constitution and act of Congress, upon which the decision of those cases depended, and acknowledges the controlling authority of that Court in their construction.

In Vermont, the Supreme Court in the case of Hoxie vs. Wright, (2 Vermont R., 263,) decided in 1828, acknowledged the doctrine of the cases decided in the Courts of the United States, to its full extent

In the Supreme Court of Massachusetts, the first case after the decis5n Mills vs. Duryee was promulgated, in which the question was again presented, was that. of the Commonwealth vs. Green, in 1822. (17 Mass., 545.) In this case, Ch. J. Parker, after referring to the opinion delivered by Parsons, Ch. J., in Bissell vs. Briggs, says: “ The Supreme Court of the United States have carried the sanctity of judgments still further, having, in the two cases of Mills vs. D'uryee and Hampton vs. McConnel, decided that nil debet was not a good plea to an action upon a judgment of another State, and indeed, that no plea would be good, except such as would be allowed in the Courts of the 'State in which the judgment was rendered; thus establishing an identity in operation 'and effect, between judgments rendered in the Courts of the same State, and in those of other States. Over a question of this nature, the construction of the Constitution and laws of the United States, that Court has the final and conclusive authority, so that their decision must be taken to be the law of the land. There can be therefore, while these decisions stand, no further doubt as to the effect of the judgments of the Courts of one State in those of another.” Yet the same Judge, six years afterwards, when this doctrine came again under review in the case of Hall and others vs. Williams and others, (6 Pickering, 232,) after a more careful examination of the decisions of the Supreme Court of the United States, says: “ This construction when first referred to in this Court in the case of the Commonwealth vs. Green, was supposed to have put an end to all questions on this subject, and to have established as the law of the land, that a judgment recovered in one State by a citizen thereof against a citizen of another, was absolute and incontrovertible, and would admit of no inquiry even as to the jurisdiction of the Court that rendered it. This Court yielded a painful deference to the decision, without that close examination it would have received if presented to them otherwise than incidentally, and if its bearing had been of importance in the case then before the Court; but the notice taken of the case was merely the expression of an opinion arguendo, and not a judicial determination of the question.” The result to which the Court arrived in this case, after an elaborate review of the authorities, was the same in substance as that deduced from the decisions by Ch. J. Savage, in Shumway vs. Stillman, (6 Wend. R., 447.) Ch. Justice Parker, in delivering the opinion of the Court, remarks: “ If it appeared by the record that the defendants had notice of the suit, or that they appeared in defense, we are inclined to think that it could not be gainsaid; for as we are bound to give fidl faith and credit to the record, the facts stated in it must be taken to be true judicially;' and if they should be untrue, by reason of mistake or otherwise, the aggrieved party must resor¿ to the authorities where the judgment was rendered for redress; for he could not he allowed to contradict the record by a plea, and by an issue to the country thereon. But if the record does not show any service of process, or any appearance in the sufy we think he may be allowed to avoid the effect of the judgment here, by showing that he was not within the jurisdiction of the Court which rendered it;” and he concludes the opinion in the following language: “ The full faith and credit required to be given in each State to'\tke judicial proceedings of other States, will prevent any evidence to contradict the facts which show a jurisdiction, if such appear on the record.” Afterwards, in the same term, the case of Woodward vs. Tremere and others was decided, in which the same doctrine was applied, (6 Pick., 354,) and I am not aware that it has since been questioned in the Courts of that State.

In those cases where the Courts have held that facts appearing upon the record, showing jurisdiction, might be controverted in an action upon the judgment in another State, it has been argued in favor of such conclusion as in the case of Starbuck vs. Murray, before cited, that unless a Court has jurisdiction, it can never make a record which imports uncontrollable verity to the party over whom it has usurped jurisdiction, and he ought not, therefore, to be estopped by any allegation in that record, from proving any fact that goes to establish the truth of a plea alleging a want of jurisdiction; that to say that the defendant may show the supposed record to be a nullity, by showing a want of jurisdiction in the Court which made it, and at the same time to estop him from doing so, because the Court have inserted in the record an allegation which he offers to prove untrue, seems to be inconsistent; and that under the operation of such a rule a Court could always sustain its jurisdiction, if it had any solicitude to do so; or rather, that the party who had the benefit of its decision, and who, by the practice of most tribunals, is entrusted with making the record, would not fail to put it beyond the power of his opponent to show a want of jurisdiction. (5 Wend., 148.) In considering the validity of this course of argument, the question forces itself upon' the mind irresistibly, whether the Supreme Court of New York or of Massachusetts, ever adopted, or would for a moment listen to such, or any similar argumente, in a suit brought upon a record of one of its own judgments ? and if not, does not this argument clearly imply a want of that faith and credit which the constitution and law of Congress obliges the Courts in every State to give to the records and judicial proceedings of the Courts of every other State ? To say that under the operation of a rule, which a State Court unhesitatingly applies to its domestic records of judgments, a Court, of equal and the highest dignity, of a sister State, could always sustain its jurisdiction, if it had any solicitude to do so; and for that reason, to allow facts appearing upon its records material to the validity of its judgments, to be controverted by plea, and disproved upon an issue to the country, seems to me to be treating such records with mow doubt and suspicion of their integrity, than with faith and credit.

That the Courts of New York would not allow the fact of personal service of the declaration and notice of rule to plead, appearing upon the record in the case before us to be controverted by plea or proof, in an action brought upon the judgment in that State, there can be no doubt. (Adams vs. Gilbert, 9 Wend.; Jackson vs. Stewart, 6 J. R., 34; Denton vs. Noyes, 6 J. R., 296; Green vs. Ovington, 16 J. R. 55.) Seo also (Smith vs. Bowditch, 7 Pickering, 137.) But it is said that the doctrine that the jurisdiction of the Court rendering a judgment may he inquired into when a suit is brought in the Courts of another State on that judgment, notwithstanding what may appear upon the record, does not depend merely upon the authority of adjudged cases, but has a better foundation; that it rests upon a principle of natural justice; that no man is to be condemed without the opportunity of making a defense, or to have his property taken from him by a judicial sentence, without showing, if he can, the claim against him to he unfounded. This great principle of natural justice will never he denied here; hut is the right which it acknowledges and protects violated, by making the record conclusive ? In the case of Hoxie vs. Wright, the Supreme Court of Vermont say, that if the defendant was entitled to relief, he might, on good cause shown, have obtained a stay of proceedings in the action then pending, while he had pursued, or had time to pursue, any remedy open to him; and if he had paid the demand on which the judgment was rendered, &c., it would unquestionably have furnished ground for an audita querula, or a motion to set aside the judgment. So in Field vs. Gibbs & Gibbs, (1 Peters C. C. R., 156,) the Court say, “if the defendant had no notice of the suit, the Court in which the judgment was given, would, upon notice, accompanied by sufficient proof, stay the. execution and set aside the judgment.” See also Lincoln vs. Town, (2 McLean, 476.) By debarring a defendant from attacking the record of a judgment against him collaterally, in an action brought in another State, he is not therefore condemned without the opportunity of making a defense, nor ’ is his property taken from him by a judicial sentence, without an opportunity of showing the claims against him to be unfounded, if he can'do so.

The conclusions to which I have arrived and which I think are well sustained by the authorities are: First, That in an action in one State upon the judgment of a Court of general jurisdiction of another State, no plea or proof can be received in contradiction of any material fact appearing by the record, unless such plea or proof would be received in an action upon it in the Court in which it was rendered.

Second, That if the record shows a want of jurisdiction, the judgment is a nullity.

Third, That if the record does not show, either that the Court had, or that it had not, jurisdiction, the jurisdiction will be presumed; but in such case, facts showing a want of jurisdiction may be alleged by plea, and if established a recovery may thus be defeated; and

Fourth, That when the record shows that the process was not personally served, and that the defendant did not appear in person in the suit, but that an attorney of the Court appeared for him and made defence, the authority of such attorney so to appear will be presumed.

Whether however, inasmuch as the authority of the attorney does not appear by the record, and might be controverted without denying any fact directly stated therein, it may be controverted, does not seem to be settled. It is pretty clear however, that in New York, in an action upon judgment of their own Courts, a defendant would not be allowed to question the authority of the attorney who appeared for him, and defended the suit; but if there were a fraudulent collusion between the attorney and the other party or his attorney, or if such attorney were worthless and unable to respond in damages, the party aggrieved would be obliged to seek his remedy by a direct application to the Court in which the judgment was rendered, to set it aside, or open it so as to afford an opportunity for defense.

Applying the principles just stated, to the case under consideration, it follows that the replication to the second plea to the first count of 'the declaration, is good; and that the demurrer thereto must be overruled. ;

Two other questions of law are presented by the pleadings in this case, about which there can be no doubt. The Gist is, whether the defendant’s plea to the second count of the declaration, of another suit for the same cause of action pending in the Supreme Court of New New York, is a good plea in bar. It is certainly not a plea to the merits, and if the matter of it would be good by way of plea at all, it could only be pleaded in abatement. (Gould’s Pleadings, 2d ed., 283; 1 East., 634; 9 J. R., 221; 12 Ib., 99.) The other question is, whether the defendant’s plea of the statute of limitation to the second, third and common counts of the declaration is sufficient to bar the plaintiff’s action. The plea sets forth that the said several supposed causes ■of action in the second, third and common counts of the said amended ■declaration mentioned did not, nor did any or either of them, accrue to the said plaintiffs at any time within six years next before the filing of the said amended declaration, &c. This plea is clearly bad. It is the commencement of the suit which fixes the rights of the parties, so for as the statute of limitations is concerned, and there is no precedent of a plea referring to a date subsequent to that time. No case has been referred to, which by any analogy appears to sustain such a plea, nor have I been able to find one; on the contrary, the authorities on this point seem to be all the other way. (6 Hill, 488; 6 Wend., 506; 1 Ib., 93.) The case of Green vs. Gill, (5 Mass., 379,) referred to by defendant’s counsel, affords no countenance, so far as I can discover, to the doctrine contended for by him; neither does the case of Granger vs. George. (11 Eng. Com. L. R., 185.)

Finally, it is the opinion of this Court, that judgment should be rendered in favor of the plaintiffs and against the defendant, upon all the demurrers. *