author: Manning J.: Campbell J.:

text:
    Joseph L. Huntington and another v. William Wellington.

      Statute of Frauds: representations as to credit, <&c, of another : promise to answer for debt of another: interest in lands — Suit on a guaranty, not in writing, that certain notes sold by defendant to plaintiffs were good and collectable, and tbe makers responsible; and that tbe maker of a certain mortgage sold at tbe same time was responsible and able to pay; that the land mortgaged waa ample security and the title perfect and unincumbered. Held, that the guaranty was not within the prohibitions of the Statute of Frauds, and was valid*
    Buch guaranty is not. within the provision which exempts persons from being oharged upon parol representations concerning the credit and ability of others ; as that is confined to cases where the representations form no part of a contract.
    2Tor is it an agreement to pay the debt of another, in the sense of the statute requiring such undertaking to be in writing. Where a guaranty is cotemporaneous, and made upon the same consideration with the original debt, or where it is made subsequently upon some new consideration of forbearance or otherwise, and is really a collateral promise to the undertaking of another, it must be in writing, or it is void. But where the guaranty of another’s debt is merely incidental to a principal contract made by the guarantor himself, • on his own account, it is regarded as, in effect, a promise to pay his own debt, and therefore need not be in writing.
    'The guaranty of the mortgage is not within the statute (§3177 of Comp. Laws\ which provides that “no estate or interest in lands, except,” &c., “nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared unless” “ by deed or conveyance in writing,” &o. It does not in any way affect the title to land, nor does it raise or affect any trust, power or authority in or •over the land mortgaged. It is simply an undertaking that certain facts exist; and if inserted in a deed of conveyance, would be simply a personal covenant Which would not run with the land.

      Submitted on briefs, July 17th.

    Decided, October 27th.

    Error to Eaton ’ Circuit.- The ease is fully stated in the «opinion.

      .Barnes <& Huntington and J. W. Longyear, for plaintiffs in error. ,

      M. 8. Brackett and I. 8. Crane, for defendant in error.
   Manning J.:

Plaintiffs had a judgment against one Hall, which they ■sold to defendant, and received in payment two promissory notes against one Mott, and a mortgage given by one Ryan. The declaration, which is in assumpsit, states that defendant represented and warranted that the promissory notes were good and collectable,' and that Mott was pecuniarily responsible and able to pay them; also that Ryan Was pecuniarly responsible and- able to pay the mortgage, and that the mortgaged premises were worth more than enough to pay the mortgage, and that they were unincumbered, &c. On the trial, parol evidence was offered to prove the representations and warranty. The evidence was objected to, and ruled out of the case by the Court; because it was not in writing. We are referred to several statutory provisions in support of the decision of the Court.

1st. Every special promise to answer for the debt, default, or misdoings of another person, is required to be in writing: — Comp. L. § 3183.

The promise here referred to is a collateral promise, made simultaneously with, or previous to, the promise creating the debt guaranteed by it; as when A trusts B., not upon B’s promise only, but upon his promise and that of a third person, as C., who, at tho same time promises to pay A., in case B. fails to pay him. The statute has no reference to a separate, independent promise made subsequently to the creation of the debt, and for a new consideration. The two promises must have a simultaneous origin, and spring from the same root. In other words, they must be twin contracts. Where A. trusts B., and C. afterwards, for a new consideration moving from A., promises to pay what B. is owing him, if he cannot collect it of B., the undertaking is an original, independent contract, not within the statute. It is a guaranty of a pre-existing debt, and not a guaranty having its origin in the creation of the debt or duty guaranteed, which is the promise meant by the statute. The cases do not all agree, but such it seems to me is the principle to be deduced from them. When the promise has its origin in the creation of the debt or duty, the consideration that supports one supports the other. When it does not so originate, but is made subsequently, the consideration of the debt or duty will not support the promise, but there must be a new consideration to give it effect, and the promise is then said to be an original, independent promise, not within the statute: — Farley v. Cleveland, 4 Cow. 432; same case, 9 Cow. 639; Chapin v. Merrill, 4 Wend. 657; Meach v. Smith, 7 Wend. 315; note to Brown v. Curtis, 2 Conn. 553 (case 225); Thomas v. Dodge, 8 Mich. 51. There are cases within the statute that, at first view, seem to be the guaranty of a pre-existing debt, but in fact are not, but of a new promise. As where a creditor agrees with, his debtor to give him time in consideration of security for payment at a future day. Such promise must be in, writing. For the undertaking of the surety is the performance of the contract granting the extension, and not the' payment of the original debt, which is merged in the new promise, and made the basis of a new debt to be paid at a future day.

2nd. No action shall be brought to charge any person, upon or by reason of any favorable representation or assurance made concerning the character, conduct, credit, ability, trade or dealings of any other person', unless such representation or assurance be made in writing, &c.: Comp. L. § 3186 The representations and assurances here spoken of, are not representations or assurances made by a party to a contract, but by a third person, knowing them to be false, and making them for corrupt and dishonest purposes, to the injury of another. If one seeks information of another, with a view to some future action, and makes such information the basis of his action, and thereby sustains a loss, the statute will not permit him to allege the deception practiced on him by his informant, unless the information he acted on was in writing.

3rd. A warranty or representation that real estate is unincumbered, is not the creation, granting, assigning, surrendering, or declaring of any estate or interest in land, or of a trust or power over or concerning land, which the statute requires to be in writing: — Comp. L. § 3177. It is the warranty or representation of a fact, and not the creation or granting of a title or interest in land.

As the proposed evidence did not come within either of these statutory provisions, the Court erred in refusing to receive it. The judgment, I think, should be reversed,, and a new trial ordered.

Campbell J.:

This suit was brought on an alleged guaranty, that, certain notes, sold by defendant to plaintiffs, were good and collectable, and the makers responsible, and that the-maker of á certain mortgage, sold at the same time, was responsible and able to pay; that the land mortgaged was ample security, and the title perfect and unincumbered. The notes, and mortgage were sold by "Wellington to plaintiffs, in exchange for a judgment against one Hall, which, they assigned to said Wellington.

The warranty was not in writing, and the testimony going to prove it was excluded by the Court below, as within the prohibition of the Statute of Frauds. And this exclusion is sought to be maintained:

1st. As within the law relating to promises to pay the-debt of another: 2nd. As within the provision declaring that no one shall be charged by reason of any favorable representation or assurance made concerning the character,, credit, ability, trade or dealings of any other person, unless the same shall be in writing, a"nd signed: 3rd. As within the law requiring agreements for the transfer or charging of. the title of lands to be in writing. I am of opinion that none of the statutes referred to apply to the case, and that the agreement is not within any prohibition of the Statute of Frauds.

The statute which exempts persons from being charged upon parol representations concerning the credit and ability of others, is confined to cases where the representations form no part of a contract. A distinction has always been taken between promises to answer for the debt of another, and mere false representations concerning his credit, which Were not agreements. The statute covering these representations was passed to remedy the defect existing in the Statute of Frauds, which permitted actions on verbal representations, while it prohibited actions on verbal promises. The two are entirely distinct, and the actions are different; the one being in assumpsit, and the other in case:-Pasley v. Freeman, 3 T. R. 51; S. C. 2 Smith Lead. Cas. 55 and notes ; Browne St. of Frauds, 181, 182.

The promise, or warranty, was not an agreement to pay the debt of another in the senáe of the statute requiring such undertaking to be in writing. Where a guaranty is cotemporaneous, and made upon the same consideration with the original debt, or when it is made subsequently upon some new consideration of forbearance or otherwise, and is really a collateral promise to the undertaking of another, it must be in writing or it is void: — Brown v. Hazen, 11 Mich. 219; Hall v. Soule, 11 Mich. 494. But where the guaranty of another’s debt is merely incidental to a principal contract made by the guarantor himself, on his own account, it is regarded as in effect a promise to pay his own debt, and therefore need not be in writing. It is unnecessary to consider what classes of contracts may be found involving this consequence, as the case before, us is in all respects within' decisions made by our own Courts.

Where the guaranty is made upon a sale of the instrument guaranteed, it has always been regarded as a mere incident of the contract of sale, and therefore an original contract of the guarantor on his own account. This was decided by us in Thomas v. Dodge, 8 Mich. 51, where a reference is made to some other similar decisions.

There is no foundation for any argument which would bring the guaranty of the mortgage within the statute relating to lands. It does not in any way affect the title to land, nor does it raise or affect any trust, power or authority, in or over the land mortgaged. It is simply an undertaking that certain facts exist, and if inserted in a deed of conveyance would be but a personal covenant, which would not run with the land.

The Court erred in excluding the testimony. The judgment should be reversed, and a new trial granted.

Martin Ch. J. concurred with Campbell J.

Christiancy J., did not sit in this case.

Judgment reversed.


source: Caselaw Access Project

author: Manning J.: 'Campbell J.:

license: Public Domain

text:
    Theodore Pew and another v. Peter Yoare.

      Plea of another suit pending. — Xu a suit commenced by attachment, a. plea in abatement was interposed, that at the time of the commencement of the suit another suit was pending between the same parties, for the same cause of action. It was held that the plea was bad, because it did not state that the former suit was still pending: — Wales v. Jones, X Mich. 25á.

      Recovery in attachment suit not limited to amount sworn to he due. — In an attachment suit, the plaintiff is not limited in his recovery by the sum sworn to be due in the affidavit on which the attachment was issued, if, by the proof, a greater amount is shown to be due.

      Certiorari to justice: error not affecting the merits.^Whether a Circuit Oourfc should reverse the judgment of a justice of the peace on certiorari, because the judgment rendered exceeds the amount claimed in the ad damnum clause of the declaration, guere?

      Heard, July 17th.

    Decided, October 27th.

    Error to Berrien Circuit Court, into which the suit was brought by certiorari, directed to J. W. Brewer, a justice of tbe pe.ace. '
    The writ of certiorari was allowed upon the affidavit of Theodore Pew, one of the defendants in the justice’s court, alleging as grounds of error,— First, that the said justice erred in overruling the demurrer of said defendants, to plaintiff’s replication, for the following reasons: 1st. Such replication was no wise in answer to, or put in issue, anything alleged or set forth in the said plea in abatement: 2d, The facts in said replication, as therein averred, afford no grounds for sustaining the plaintiff’s writ and declaration; and 3d, that such replication was in other respects insufficient in substance and form.
    Second. That the justice further erred in that, on overruling said demurrer, the judgment should have been that the defendants answer over, and not a final judgment against defendants.
    Third. That the said justice further erred in not sustaining the said demurrer of said defendants; that the facts alleged in said plea in abatement might hare been inquired into by the court, and, if found to be true, that the said writ might have been quashed.
    Fourth. That the said justice further erred in giving judgment for the sum of $238 18. 1st. The amount sworn to be due, as a2>pears by the affidavit upon which the writ in this case was issued, is but the sum of $219 95, and 2d, The damages alleged in the plaintiff’s declaration and therein claimed by him is but $100.
    The following is the return of the justice to the writ of certiorari.
    State of Michigan, County of Berrien, ss. I, J. W. Brewer, the justice of the peace hi the writ hereunto annexed named, do certify to the Circuit Court for said county, that before the coming • to me of the said writ, to-wit, on the 26th day of January, 1860, at the request of Peter Yoare, in the said writ named, I issued a writ of attachment, directed to any constable of the said county, commanding him to attach so much of the goods and chattels of Theodore Pew and Franklin Pew, under the name and firm of T. & F. Pew, as would be sufficient to satisfy said demand, and safely to keep the same to satisfy any judgment that may be recovered by the said Peter Yoare, in the said writ named; which writ was returnable on the 4th day of February, 1860, at my office in the township of St. Joseph, at ten o’clock in the forenoon; which attachment, on or before the return day thereof, was delivered to me by A..J. Barhight, a constable of the said county, with a return thereon signed by him, served the 26th day of January, 1860, by seizing one one-horse buggy with top or cover, one new one-horse cutter, one pile driver and hammer, one big line, the property of the defendants T. & F. Pew, and on the same day served upon the defendants personally a copy of the attachment, and of the inventory duly certified by him.
    And I do further certify that, at the time and place specified for the return of the said attachment, the said parties appeared before me, and the said plaintiff, by Horace Guernsey, his attorney, declared orally against the defendants as follows: “On two promissory notes, and one due bill, produced and filed in court, which read as follows, to - wit:
    $51 01 St. Joseph, October 12th, 1859.
    Sixty days after date we promise to pay, to the order of Peter Yoare,'4ifty-one- and 01-100 dollars value received.
    T. & F. Pew.
    $51 02 St. Joseph, October 12th, 1859.
    Thirty days after date we promise to pay to the order of Peter Yoare fifty-one and 2-100 dollars, value received.
    T. & F. Pew.
    ^ÍÍS 19 St. Joseph, October 17th, 1859.
    Due Peter Yoare one hundred and seventy - three and 19-100 dollars, value received. T. & F. Pew.
    Also, for work and labor, care and diligence, done and performed by the plaintiff for the defendants at their request, also for money expended at their request, to the damage of the plaintiff one hundred dollars.”
    To which defendants filed a plea in abatement to the plaintiff’s writ and declaration, which is hereunto annexed, to which plea the plaintiff filed a replication, which is also hereunto annexed, and plaintiff moved to adjourn. I therefore adjourned the suit until the eleventh day of February, 1860, at one o’clock in the afternoon, and on the adjourned day the parties appeared: F. Muzzy for the plaintiff, and amended his said replication by consent of defendants’ attorney; D. A. Winslow appeared for the defendants;, defendants by their attorney demurred in writing to the amended replication, which demurrer is also hereunto attached. Demurrer overruled.
    Plaintiff offered the said notes and due bill in evidence, and thereupon the plaintiff rested his case: the defendants made no defense.
    And I also certify that the foregoing is all the testimony given on the said trial, and that after examining the said notes and due bill filed in said cause, and also after hearing the allegations of the plaintiff, defendants making no defense, I, the said justice, did forthwith render judgment, in favor-of the plaintiff against the defendants, for $238 78 damages, and also two dollars and twenty cents costs.
    And in further answer to the facts set forth in the copy of the affidavit on which the said writ of certiorari was allowed, I do further certify and return, as to the replication, it seems to me that everything was set forth that was necessary; Second, As to the demurrer, I think it was bad, because it did not set forth that both suits were pending at the same time; Third, The plaintiff showed that the former suit commenced by summons was withdrawn on the second day of February, 1860, it being the adjourned day of said suit, and costs taxed to the plaintiff two days before, the return day of the attachment; Fourth, Judgment was rendered for the sum of $238 78, because there was no way of ascertaining the defendants’ claim against the plaintiff, if any they had; the plaintiff’s affidavit by which the writ was issued was for but $219 95, as near as he could estimate the same; so I took the notes for the best evidence, as there was no offset, except that upon the backs of said notes: and as to the damage alleged in the plaintiff’s declaration of one hundred dollars, it is very evident that he intended it separate from the notes.
    All which I send with the process, pleadings and other-things touching the aforesaid proceedings and judgment, as by the said writ I am commanded.
    Given under my hand this 26th day of August, 1860.
    J. W. Brewer, justice of the peace.

      Plea in Abatement.

    The said defendants pray judgment of the said writ and declaration in this cause, and that the same may be quashed, because they say that, at the time of the commencement of the suit, another suit was pending for the same cause of action, before J. W. Brewer, Esq., a justice of the peace in and for the township of St. Joseph, in the county of Berrien, and that the parties to such former suit were the same, and identical with the parties to this suit, and none others; and that such former suit so thus pending was commenced by summons on the 19th day of January a. d. 1860, and was made returnable on the 26th day of January aforesaid, at which last mentioned time, th'e said suit was adjourned to the 2d day of February, 1860, as appears of record; and this the said defendants are ready to verify, &o. Wherefore they pray judgment of the said writ and declaration, and that the same may be quashed. T. & F. Pew,
    By D. A. Winslow, their Att’y.
    State of Michigan, county of Berrien, ss. D. A. Wins-low, of said county, being duly sworn, deposes and says that he is attorney for said defendants, and knows the facts set forth in the above plea, and that the same is true in substance and matter of fact. D. A. Winslow.
    Sworn to and subscribed this 4th day of February a. d. 1860, before me.
    J. W. Brewer, Justice of the Peace.

      Replication.

    And the said plaintiff says, that the said summons ought not to be quashed, because he says, that said former suit, in said plea mentioned, was not pending at the time of filing of defendants’ plea in this suit, in manner and form as the said defendant hath above, in his said plea in that behalf, alleged, but had been discontinued by plaintiff, and this the said plaintiff prays may be inquired of by the court.

      Demurrer.

    And the said defendants say, that the replication of the said plaintiff to defendants’ plea in abatement is insufficient in law.
    The judgment rendered by the Justice on these pleadings, in favor of Toare, was affirmed by the Circuit Court*

      D. A. Winslow, for plaintiffs in error.

      D. Muzzy, for defendant in error.
   Manning J.:

The first suit was commenced by summons, the last by suing out an attachment. The plea of the first suit in abatement of the last was therefore bad, in not averring, as it should have done, the pendency of the first suit at the time of putting in of the plea. Wales v. Tones, 1 Mich. 254, we think conclusive on this point.

There is nothing in the statute regulating proceedings in attachment suits, limiting the plaintiff’s recovery to the amount stated and sworn to be due in the affidavit on which the attachment is issued. If a greater amount is shown to be due, we know no reason why the plaintiff should not have judgment for it.

The $100 ad damnum was probably intended to cover the common counts only. However that may be, the Circuit Court was right in refusing to reverse the justice’s judgment on that account. It in no way affected the merits of the ease. The statute requires the Circuit Court to give judgment in the cause as the right of the matter may appear, without regarding technical omissions, imperfections, or defects in tbe proceedings before tbe justice, wbicb did not affect tbe merits: — Comp. L. § 3881.

I tbink tbe judgment should be affirmed, with costs.

'Campbell J.:

I tbink tbe $100 ad damnum clause bad no reference to tbe claims specially declared on, and that tbe declaration was therefore broad enough to support tbe judgment without tbe aid of intendment. I concur in affirming it, therefore, on this ground, and because tbe plea in abatement was insufficient.

Martin Ch. J.. concurred.'


author: Campbell J.:

text:
    Christopher C. Bennett, Administrator, &c. v. John Nichols and another.

      Power of equity to create a lien on lands: remedy at la/w. — A court of equity can. not create a lien on real estate to secure a personal debt not contracted on its credit, and not charged upon it by agreement.
    Complainant’s intestate had leased premises for the purpose of erecting a steam saw mill thereon, had placed upon them a frame for the building ready for erection, and had contracted and partly paid for an engine for the same. After his death, the land was sold by his lessor, and the purchaser, together with the contractor for the engine, put up the frame, and completed and commenced operating the mill. Complainant, as administrator, filed his bill against them to compel payment of the value of the mill frame, and of the moneys paid towards the engine, and to have the amount declared a lien on the premises. It was held that his claims were not of equitable jurisdiction, and that his remedy was at law.

      What not a final decree.’ — An order overruling a demurrer is not a fmal decre from which an appeal can be taken to the Supreme Court.

      What is open to review on appeal from Chancery.— Where a demurrer interposed to a bill in equity is overruled, and the defendant then answers, and the case is heard on pleadings and proofs, and decree rendered against him, an appeal from the final decree opens for review the decision on the demurrer.

      ¡Defect of jurisdiction not waived by answer. — "Where a complainant seeks relief of an equitable character on a case where there is also a legal remedy, and the defendant answers without taking this objection, he may be properly subjected, to a decree granting the equitable relief prayed, if it is within the equitable powers of the Court. But where the relief sought is in no sense equitable relief, the objection oan not be waived, but may be taken at any stage of the cause.

      Heard, October 9th and 10th.

      Decided, October 27th.

    Appeal in Chancery from Branch Circuit.
    The nature of the bill is sufficiently stated in the opinion. The defendants severally demurred, but their demurrers were overruled; and they then answered, and the case was heard on pleadings and proofs. The Court below made a ■decree against Nichols, as prayed, but dismissed the bill as to Grove, without costs. Nichols appealed to this 'Court.

      Gilbert & Thompson, and Douglass & Andrews,' for com plainant.

      D. D. Dibble, and D. D. Hughes, for defendant Nichols.

      T M. Cooley, for defendant Grove.
   Campbell J.:

The bill in this cause was filed to obtain payment of the value of a saw mill frame, and of the sum of $1200 which had been paid by complainant’s intestate during his life, towards a steam engine and boiler designed to be put by him in a saw mill to be built on premises leased by him. The lease was made to James If. Bennett, “his •executors, administrators and assigns forever,” reserving no rent, but conditioned to erect and maintain a saw mill.

The material was mostly prepared by the lessee during his life, and the frame was put up immediately after his death. The engine was contracted for by him with defendant Nichols, and his partner, one Shepard, and was deliverable before Bennett’s death; and $1200 had been paid thereon, a balance of about $600 being payable some months after-wards. After Bennett’s death, the land was conveyed to Grove by Warne/, the lessor, and. Grove and Nichols completed the mill, of which Nichols .was to and did furnish the engine. It is not entirely clear, nor do we deem it material, whether the engine furnished was the one designed originally for Bennett.

The Court below declared Nichols personally liable for all of complainant’s claim, and made a personal decree against him for the amount, and gave a lien on his share of the premises to secure it.

We have not been able to discover upon what principle a court of equity can create a lien on real estate to secure a personal debt, not contracted on its credit, and not charged on it by agreement. There may be cases where, from the nature of the transactions between parties, rights spring up which ought to be held binding on specific property. No case like the one before us has been presented, authorizing such a lien to be declared, and no sound reason has been suggested requiring or permitting it.

We are inclined to think, on the facts as they now appear in proof, that the right existed in the representatives of James K. Bennett to remove the mill frame after his death. Such erections are not so attached to the freehold as to exempt them from the immunity of trade fixtures-And, except to a small amount, the material had not been put up before his death, and so remained entirely in the' shape of movable chattels, to which his title was clear. We have no doubt a right of action existed for the conversion of this property, against the wrongful appropriator.

We are also of opinion that a right of action existed against Nichols and Shepard, for any breach of their contract to complete and deliver the engine and boiler.

But these claims, as set up in the bill, and as proved, have no equitable nature. They are proper foundations for suits at law, and for nothing else. The remedy sought in the bill is a legal remedy, and one which, unconnected as it is with any peculiarly equitable features, is beyond the jurisdiction of a court of equity.

It is claimed, however, that the defendants have, by answering on the merits without raising this objection, waived the right to take it. The objection was taken by demurrer, and the demurrer was overruled. An order overruling a demurrer is not a decree, and is not in any sense final; the practice requiring that the defendant answer over. No appeal can be taken from such an order, and the appeal from the final decree opens for review all the merits of the case.

But we think the complainant has also misapprehended the nature of the objection to his bill. Where a complainant seeks relief of an equitable character, on a case where there is also an adequate legal remedy, the party waiving this objection may be properly subjected to a decree granting the equitable relief prayed, if it is within the equitable, powers of the Court. The relief sought here is in no sense equitable relief. A bill to collect a promissory note would be precisely like it in principle. Such a jurisdiction should be rejected by the Court itself as not. within its legitimate province.

The decree must be reversed, and the bill dismissed,, with costs in both Courts, but without prejudice to any.” legal redress.

The other Justices concurred.


author: Martin Ch. J.: Manning J. Campbelu J.

text:
    The People on the relation of Amos A. Kinney v. Edward H. C. Wilson, Judge, &c.

      Notice of judgment rendered in vacation. — The party against whom a decision is rendered by a Circuit Judge in vacation, is entitled to a written notice, either from the clerk or from the opposite party, before the ten days allowed him for making a case commences to run.

      Heard and decided October 31st.

      Motion by C. A. Stacy, for a mandamus, directed to the Circuit Judge of the first Circuit, to compel him to settle and sign a case. It appeared by the affidavits presented, that the case of the relator against Andrew J. Gaumer, was submitted to the Court upon the facts, and that the Judge, on September 23, 1863 (in vacation), delivered to the clerk his decision in writing, in favor of defendant. On the next day, the defendant’s counsel verbally informed the plaintiff’s attorney of the decision, which was the only notice he received from any source. On October 4th, the plaintiff’s attorney signed a stipulation consenting to the taxation of defendant’s costs. Within ten days from that date, plaintiff’s attorney prepared a case, and served it upon the attorney for defendant j and -due notice was afterwards given for settling the same by -the Judge. On appearing before the Judge, the defendant’s attorney objected to the settlement, because the case was not prepared and served within ten days after the oral notification of the decision. The Judge, being in doubt as ■to the proper construction of the rules on the subject, .declined to sign the case, that the question might be settled by this Court.

      Mr. Stacy argued that under Comp. L. §3441, and rules 81 and 6 of the Circuit Courts, the ten days allowed the party to make a case for review in this Court did not commence running until he had been served with written notice of the entry of the judgment.

      A. JO. Miller d, contra,
    referred to Richardson v. Yawkey, 9 Mich. 139, as settling the rule, that a party who has acted upon knowledge of a judgment can not after-wards insist upon his right to a written notice. In this case, the plaintiff had stipulated for the taxation of the costs, and, in so doing, had of course acted upon the notice received September 24th, since that was the only ■notice given Mm. He haá thus waived his right to insist that the notice thus received was not sufficient.
   Martin Ch. J.:

Under the statute, the clerk must at least serve notice of the judgment on the successful party; and either that party or the clerk should serve written notice upon the other party, before the ten days' will commence running. He is not to be deprived of his rights without written notice from some one.

Manning J.

I think the correct practice is for the «lerk to notify the successful party of the decision, and. the latter should .then serve written notice upon the other party.

Campbelu J.

If defendant, by stipulating for the taxation of the costs on October 4th, waived Ms right to insist upon a written notice, the waiver could not relate back of that time.

Mandamus granted.


text:
    George C. Evans v. The People.

      Omission of matter of fot'm in indictment. — Under the statute of 1855, relativo to indictments {Comp. L. §6047 et seqj, if an indictment or information contains direct and unequivocal averments of such, facts — not being mere evidence — as lead immediately and of necessity to a single and inevitable conclusion, the omission to draw that conclusion will not vitiate the pleading.
    An information for murder was in the full common law form of indictments, except that in the conclusion, where it was averred that the respondent “did kill and murder,1» the name of the person killed was omitted. The respondent was convicted of manslaughter, and it was held that, under the statute, the information was sufficient to sustain the conviction.

      Opinion of witnesses who are not experts. — The cases considered in which the opinions of witnesses who are not experts may be given in evidenoe»

      Tbs case being such, that the exact nature, as well as the existence, of a particular-epidemic in a certain locality was in controversy, a question was put to a ■witness (not an expert) as to the existence of the epidemic in that locality. The question was objected to, and the objection overruled. The witness, in reply, denied the existence of any sickness whatever in the locality* It was held that the difference between health and any sickness whatever could not be regarded as open only to medical science, and that the answer of the-witness was not incompetent.

      Heard October 23rd.

      Decided November 10th.

    Error to Kent Circuit.
    The plaintiff in error was informed against for murder, as follows:
    “State oe Michigan, Kent County, ss.- The Circuit Court for the County of Kent. E. G. D. Holden, prosecuting attorney for the county of Kent aforesaid, for and in behalf of The People of the State of Michigan, comes into said Court, in the March term thereof, a. d. 1863, and gives it here to understand and be informed, that George C. Evans, late of the city of Grand Rapids, of the county of Kent, on the .eighteenth day of February, eighteen hundred and sixty-three, at the city of Grand Rapids, county aforesaid, in and upon one Coban Balch, in the peace of the People of the State aforesaid then and there being, feloniously, willfully, and of his malice aforethought, did make an assault, and that the said George C. Evans, then and there, feloniously, willfully, and of his malice aforethought, did strike, beat and kick the Said Coban Balch, with his hands, fists and feet, in and upon the head, breast, sides and other parts of the body of him, the said Coban Balch, and- did then and there feloniously, willfully, and of his malice aforethought, knock the said Coban Balch down, with great force and violence, then giving unto the said Coban Balch, then and there, as well by the beating, striking and kicking of him, the said Coban Balch, in manner and form aforesaid, as by knocking him, the said Coban Balch, down, as aforesaid, several mortal strokes, wounds and bruises, in and upon the head, breast, sides, and other parts of the body of him, the said Coban Baleh, of which said mortal strokes, wounds and bruises, he, the said Coban Baleh, from the -eighteenth day of February, a. d. 1863, until the twentieth ■day of February, 1863, did languish, and languishing, did live; on which said 20th day of February, in the year aforesaid, the said Coban Baleh, at Grand Rapids, in. the county and State aforesaid, of the several mortal strokes, wounds and bruises aforesaid, died; and so the Court is informed that George C. Evans, in manner and form aforesaid, feloniously, willfully, and of his malice aforethought, did kill and murder, contrary to the statute in such case made and provided, and against the peace and dignity of the State of Michigan.
    E. G. D. Holden,

      Prosecuting Attorney for Kent County.”
    On this information, defendant was convicted of man■slaughter, and sentenced to the State prison for two years and six months. The case was removed to this Court for review on writ of error and bill of exceptions. The -questions raised by the exceptions sufficiently appear by the opinion.

      Ashley <& Chipman, J. T. Holmes and G. V. H. lothrop, for plaintiff in error:
    1. The information purports, in the main, to follow the •common law forms for indictments for murder; yet in the -conclusion it does not aver that the said George C. Evans •did kill and murder the deceased.
    Our statute of 1855, Compiled Laws, p. 1587, § 1, provides that, in all indictments for murder, it shah not be necessary to state the manner in which, and the means by which, the death of the deceased was caused; declaring it to be sufficient to charge that the defendant did willfully, and of his malice aforethought, kill and murder the deceased.

    Since this statute became the law, a statement in an. indictment for murder, of the manner in which, or the means by which, the death of the deceased was caused, performs no office, and is surplusage.
    The statute of 1859, p. 392, § 4, applies the statute above mentioned, relating to indictments, to informations.
    At common law, after stating the manner in which, .and the means by which, death was caused, it was necessary to charge that the accused did, with malice, &e., kill and murder the deceased. It was not sufficient to charge that the accused did kill and murder. See Arch. Cr. Pl. 301, 884; Dias v. State, 7 Black. 20; 1 Chit. Cr. L. 243.
    Our statute of 1855 is a recognition of this rule, as. applicable to common law indictments. It simply provides, in substance, that the concluding charge of a common law indictment shall be sufficient, and uses almost the identical language of the common law text writers upon that subject.
    The court never, in criminal cases, take anything by intendment or implication: — Long's Case, 5 Coke; 4 Bl. Com. 310 and note; 1 Chit. Cr. L. 230.
    2. Upon the question as to the prevalence of erysipelas, in the neighborhood of the residence of the deceased, physicians alone were competent to testify.
    That was a question of fact, about which both parties offered proof. The question of the materiality of the proof' to the issue, was not raised below, and is not in issue here. Clearly, persons skilled in treating diseases, are alone competent to testify upon that point: — Greenl. Ev. § 440, note 2.

      A. Williams, Attorney General, for the People:
    1. The information is not defective in the respect alleged — it clearly and distinctly charging the respondent with the crime of murder, thereby fully performing the office devolved upon a pleading of this kind.
    It is one of the first principles of pleading, that there is. only occasion to state the facts, for the purpose of informing the Court, whose duty it is to determine the law arising upon those facts, and of apprising the opposite party of what is meant to be proved, in order to give an opportunity to answer or traverse: —1 Chit. Pl. 213; 1 Chit. Cr. L. 172; Steph. on Pl. 135.

      This object is fully consummated by this information. A'full description of the injury complained of, embracing every fact necessary for the people to prove, is contained in the information; the crime, as the fruit of those facts, is positively and unmistakably charged upon the respondent; and thus he is positively informed of that which he is to answer.

    True, it is said in the information, “ and so the Court is informed that George C. Evans, in manner and form aforesaid, feloniously, willfully and of his malice aforethought, did kill and murder,” omitting to add the name, “ Coban Balch.”
    We submit, that the word “aforesaid,” as used in this part of the information, is sufficient without a repetition of the name of the deceased — the respondent being thus as unmistakably informed without, as with it, as to what he is to meet upon trial. And farther: The word “aforesaid” is sufficiently comprehensive in its scope and meaning, to therein repeat, by its use in this clause of the information, for all the purposes of pleading, all that is thus clearly intended to be referred to. This would as necessarily include the object of the acts, as the acts themselves, and their results; for the word, “aforesaid,” in its intelligent, retrospective relation, clearly and certainly refers to that which has been said or recited before in the information and which makes up the entire body of the offense: — 1 Chit. Pl. 237-8-9; 1 Chit. Cr. L. 454, 172-3; 1 Comst. 180-4-5; 12 Wend. 425; 8 Barb. 550-1, 548; Niles v. Rhodes, 7 Mich. 374-8-9; Whart. Cr. L. § 1073 ; 1 Arch. Cr. Pl. p. 86 and note 1, and p. 118-2; 3 Dyer, 304; 3 Park. Cr. R. 15 to 21.

      If tlae case made by the information be clear, nice distinctions ought not to be regarded: — 1 Chit. Pl. 238 ; 13 Johns. 482; 1 Chit. Cr. L. 172-3.
    After verdict an expression must be construed in such a sense as will sustain the verdict: — 1 Chit. Pl. 238.
    2. The respondent was convicted of manslaughter; and, as an information for manslaughter, it is sufficient — no word, of art being necessary to describe or charge this offense: — Whart. Cr. L. §§ 399, 400; Arch. Cr. Pl. p. 91, 92, and note 1; Dias v. The State, 7 Blackf. 20; 3 Dyer, 304; 3 Park. Cr. R. 20.
    3. The respondent’s objection relates to the form, and not the substance of the information: — 5 Wend. 10; 12 Wend. 425; 3 Denio, 212; 8 Barb. 550-51, 548; Whart. Cr. L. § 427; 1 Arch. Cr. Pl. 118-2, note 2.

    The objection being to the form of the information, apparent upon its face, it must have been taken by demurrer, or motion to quash the same, before the jury were sworn, and not after: — 2 Comp. L. § 6055 ; 10 Mich. 372, 395.
    4. No injury could have resulted to the respondent from allowing Hendershot to answer the question put to him. The witness residing near the deceased in his life time, could testify whether or not there was sickness, but perhaps not, there being sickness, as to the type of it — ■ a point, however, not conceded.
   Campbell J.:

Evans, the plaintiff in error, was convicted of manslaughter in killing one Coban Balch. Error is brought on two grounds: First. That the information is insufficient to sustain the conviction; and Second. That evidence was received which was inadmissible.

The error alleged in the information is, that while, in the concluding portion,' it is averred that Evans did “ kill and murder,’’ it does not there show the name of the' person killed, and so contains no charge of the slaying of Balch. With this exception, the information is in the full form of a common law indictment for murder, and recites and alleges distinctly an assault, the infliction of mortal wounds, and that Balch died of those wounds; and in this part of the pleading the averments are full and technical as to time, place, manner, and all other matters essential. It is quite probable that if this information could only be sustained according to the rules of the common law, it would not come up to the certainty required. It is not to be denied that, in indictments for homicide, great strictness is required in alleging distinctly every necessary inference and conclusion. But our statute of 1855 declares, that “no indictment for any offense shall be held insufficient for want of the averment of any matter unnecessary to be proved,” “nor for a want of a proper and formal conclusion: — 2 Comp. L. § 6054. We think that these, and other provisions in that statute concerning matters of form, require us to hold that, if an indictment or information contains direct and unequivocal averments of such facts (not being mere evidence) as lead immediately and of necessity to a single and inevitable conclusion, the omission to draw that conclusion expressly will not vitiate the pleading. The allegations in the case before us can not, by any possible construction, permit any inference except that Evans feloniously and maliciously killed Balch, at the time and in the manner specified. Had the jury found him guilty of “murder," the question might arise which was referred to on the argument, whether that offense could be described without the technical word. In manslaughter, any unlawful and felonious killing constitutes the offense. We think the information sufficient to sustain the conviction.

The remaining ground of error alleged is, that one John Hendershot, not being shown to possess any special qualifications, was allowed to answer a question involving an inquiiy of medical science, having an important bearing upon the cause of Balch’s death. It had been shown that he died of erysipelas, claimed by the prosecution to have resulted from the injuries inflicted by Evans. The defense had introduced medical witnesses, whose evidence tended to prove the existence of that disease in an epidemic form in Balch’s neighborhood, previous to his visit to Grand Rapids, where he died two days after the assault upon him. Hendershot was called as a rebutting witness, and was asked, under objection, whether there was “any case of erysipelas about the neighborhood of the residence of the deceased, before his coming to Grand Rapids, in February last;” the witness answered, “No, sir; neither before nor since; no sickness within five or six miles of Coban Balch’s residence during the month of February, nor until after that time.”

There can be no doubt of the importance of these various inquiries, inasmuch as they wére aimed at explaining the causes of the death of Balch, and showing how far Evans was responsible for it. It becomes essential, therefore, to consider whether this question was admissible under the circumstances, and also how far the form of the answer may affect the legality of its reception.

If the question was improper, it is because it is supposed to involve obtaining an opinion which no one has a right to give in evidence without an especial knowledge of diseases in general, or of the particular disease named, not supposed to be possessed except by those whose study or attention has been turned in that direction.

It is not always easy to determine the propriety of receiving or rejecting testimony concerning matters involving, apparently, to a greater or less extent, medical or other scientific investigation. There are many cases where it is difficult to ■ determine whether the facts to be examined are to be considered beyond the range of ordinary intelligence. And the decisions are by no means clear or satisfactory upon the distinctions. The principles on which the authorities rest are more consistent than the attempts to apply them.

The primary rule, concerning all evidence, is, that personal knowledge of such facts as a court or jury may be called upon to consider, should be required of all witnesses, where it' is attainable. It is also an elementary rule that, where the court or jury can make their own deductions, they shall not be made by those testifying. In all cases, therefore, where it is possible to inform the jury fully enough to enable them to dispense with the opinions or deductions of witnesses from things noticed by themselves, or described by others, such opinions or deductions should not usually be received. But experience has shown that many cases exist, in whioh it is impossible, by any description, however graphic, to explain things so as to enable any one but the witness himself to see or comprehend them, as they would have been seen or comprehended could the jury have occupied his position of observation. In such cases, the witness must give his own impressions and conclusions, or his narrative is useless; adding, however, as full explanations as the nature of the case will admit, so that his capacity and truthfulness may be tested as far as practicable. Examples of this kind frequently occur, when it becomes necessary to inquire into mental condition and disposition, into the existence of passion or emotion, attention or inattention, vigor or weakness, affection or aversion, or any other matter in which we usually form our opinions without stopping to analyse the reasons for them, or notice their elements. Similar instances occur where witnesses attempt to describe natural phenomena, as degrees of light and darkness, the measurement of distances by the eye, changes of heat and cold, and the like. The principle which allows persons who understand matters of science or skill to give their opinions and deductions from facts exhibited or described to them, rests upon the same foundation. In all these cases, the witness is allowed to testify to a result, because, without such evidence, the jury can not be supposed able to arrive at a knowledge of it, and therefore such aid is indispensible. And it also follows, that no witness can be permitted to offer such testimony, unless he appears to be qualified, in some degree, at least, to furnish the means of aiding the jury in arriving at a true result. The greatest difficulty encountered in determining questions of competency of testimony, on subjects connected more or less with medical science, is in ascertaining how far it is safe to suppose unprofessional observers are able to form a reliable judgment. There are some simple disorders, which all persons are familiar with. Others require the very highest degree of medical skill to distinguish them from disorders having some resembling aj>pearanees or symptoms. In some cases, too, although inquiries arise concerning the existence of health or disease, ■ it does not become important to have accurate information as to the precise character of such disorders as may exist. In the view of evidence now entertained by the best authorities, it is settled that a jury should be allowed to have placed before them all the means of knowledge which can be had without involving the danger of leading them to form conclusions not based on solid truth, and not reliable as reasonably certain. If a witness is competent to form an opinion which the jury could not, or which an ordinary witness could not, it would be absurd to reject his aid. But, on the other hand, a scientific witness, when he testifies to matters within the comprehension of ordinary witnesses, stands on the same footing with them as to all such testimony, and as to those matters can only give his opinions where any other observer might.

Thus, when it was held by some authorities that, upon ■questions touching the mental capacity of a particular person, only physicians and subscribing witnesses could give their opinion, the inquiry was not made one of science merely, and the scientific expert was put on the same footing, on questions not purely medical, with ordinary witnesses having no scientific knowledge, and whose powers of observation were those possessed by any one in like circumstances; and the recognition of this equality has led to the modern sensible doctrine, that similar opinions are receivable from all who have, by personal observation, had means of forming a judgment concerning the condition of the party. The value of any such opinion depends, like all other testimony, on the honesty and sagacity of the witness, and on his means of observing and judging.

Such opinions being constantly formed and acted upon by all men in their daily intercourse, are among the most familiar means of safety in business transactions. But there may be, in addition to appearances which all intelligent men understand, peculiar symptoms and conditions understood only by medical men or other experts; and as to these peculiarities, the testimony of such experts becomes admissible beyond that of others.

What is thus true of mental capacity may become equally true in regard to other matters involving some questions of skill. Circumstances may make whole communities familiar with diseases not generally known elsewhere, and reasonably competent to manage ordinary cases of such diseases, and to recognize their symptoms. Such is often the case from necessity in new countries; and the same necessity leads to a more general knowledge of the extent to which a neighborhood has suffered from any prevailing sickness than is usual in populous towns. And it often happens that some persons having no general skill become very familiar with particular subjects.

It would be very unwise to exclude such evidence, merely because the range of the witness’s knowledge is limited. There are as many grades of knowledge and ignorance in the professions as out of them. The only safe rule in any of these cases is, to ascertain the extent of the witness’s qualifications, and, within their range, to permit him to speak. Cross - examination, and the testimony of others, will here, as in all other cases, furnish the best means of testing his value.

The circumstances of the case, therefore, must be looked at to determine the admissibility, not only of the question put to Hendershot, but also of his answer. As he was not examined concerning his knowledge of erysipelas, or of diseases generally, he could not be asked, such a question, if the issue materially required from the witness any such knowledge. The inquiry before the jury was whether the erysipelas, of which Balch died, was dependent on a wound, or was wholly or in part derived from, other causes. It was attributed by the defense to his previous exposure to an epidemic.

The exact nature, as well as the existence of such epidemic was thus directly in controversy. This question, therefore* could not properly be put to any one not having some knowledge of the disease; and, as the record stands, was erroneously allowed.

But Hendershot’s answer, denying the existence of any disease whatever in that vicinity, stands on a different footing. The difference between health and any sickness whatever can hardly be regarded as open only to medical knowledge; and his contradiction of the medical testimony is a contradiction of common facts, and not of science. The value of such a sweeping assertion is not to be detex*mined in this Court.

The testimony was not incompetent. There was no error in the proceedings, and the judgment must be affirmed.

The other Justices concurred.


author: Cheistiancy J.:

text:
    Township of Texas v. Henry Wager.

      Compensation of Collector of Taxes. Under the statutes in force in 1861 and 1862, (Comp. L. §§815, 841; Laws of 1858, p. 182), the township treasurer had the right to retain, of his own authority, only two per cent, of the taxes of 1861 collected by him, for his fees, where neither the electors of the township, nor the supervisor, had fixed his compensation at a higher rate.
    Whether the supervisor has the right to fix the compensation when the electors have neglected to do so, quere.

    Where the electors did not determine what percentage should be added to the taxes for the collection expenses, and the supervisor added two and a half per cent., and in his warrant for their collection, directed the treasurer to retain that amount for his fees, and the treasurer retained four per cent., paying over the remainder; it was held, that he was liable to the township for the amount which he had retained over two and a half per cent.

      Heard October 23d.

      Decided November 10th.

    Case made after judgment, from Kalamazoo Circuit.
    The cause was submitted to the Court below upon a stipulation showing the following facts:
    The defendant was township treasurer of Texas, from April, 1861, to April, 1862, during which period he collected for the township, and was entitled to his legal per centage upon $2,448 20. This sum included two and a half per cent, added by the supervisor for collection expenses.
    The electors of the township, neither at the annual meeting nor at any other time, determined by vote what per cent should be added by the supervisor for collection expenses.
    The supervisor, in the warrant issued by him to the defendant for the collection of the taxes, directed the defendant to retain two and a half per cent of the amount for his fees, and to pay over the remainder. The defendant, however, in his settlement with the township board, retained four per cent, and paid over the remainder. Four per cent had been received by the township treasurer for his fees for each of the ten preceding years, except two years, when the rate was fixed by the electors at two and a half per cent.

      The township claimed to recover in this suit, the one and a half per cent retained by the defendant, above the sum so fixed by the supervisor; and the Circuit Court gave judgment therefor.

      G. S. May & Briggs, for plaintiff.

      T B. Sherwood and G. IS. Stuart, for defendant.
   Cheistiancy J.:

The only question here presented is, whether, by the statutes in force in the years 1861 and 1862, the township treasurer collecting the tax of 1861 had a right to retain four per cent for collection, when the electors, at the township meeting, had neglected to fix the amount, and the supervisor had added but two and a half per cent to the roll for that purpose, and, in his warrant, authorized him to retain only the latter amount.

By the act of 1858, § 33 (Comp. L. § 815), the supervisor is required to assess the amount of taxes for state, county and township purposes, “adding thereto and to all other taxes required by law to be assessed by him, not more than four nor less than two per cent for collection expenses, upon the taxable property of the township,” &c.

No tribunal or mode is provided by this statute for fixing the percentage for collection between the extremes of two and four per cent: under this statute, therefore, the supervisor alone, we think, had the power to fix the amount between these limits.

But by the amendment of 1858 (Laws of 1858, p. 182), which applies to the present case, after the words, “not more than four, nor less than two per cent,” the following words are inserted: “as shall be determined by the electors at their annual meeting, at the same time and in the same manner that overseers of highways are elected.”

By section fifty-nine of the act of 1853 [Comp. L. § 841), which was not amended by the act of 1858, “the township treasurer shall receive not to exceed four, nor less than two per cent on the amount collected, which he shall retain out of the moneys collected by him.” This provision must be construed with reference to, and as dependent upon, section thirty-three; and, since the amendment, as dependent upon the last named section as amended. Whether, after the amendment of 1858, the supervisor had the power to fix upon any rate of percentage between the two and the four per cent, is a question not raised by the case, and we give no opinion upon it. But, granting that he had that power, we think it clear, that if he had not fixed it at a higher rate, the treasurer could not, of his own authority, retain a higher rate than two per cent. Under the amendment of 1858, the treasurer had a legal right, by the direct authority of the statute itself, to the two per cent; and, except as increased by the supervisor (if he has the authority) or by the electors, to nothing more.

The vote of the electors could alone give him the right to a higher rate of compensation than that fixed by the supervisor, and by him added to the taxes.

The judgment of the Circuit Court was, we think,, correct, and it must be affirmed, with costs.

The other Justices concurred.


text:
    Charles M. Welch v. A. Smith Bagg.

      Evidence not to be weighed on certiorari — Where there is a conflict of evidence on a trial "before a justice, and still evidence has been put in which covers the whole case, so far that, if believed, it would warrant a verdict, the Circuit Court, on certiorari, has no power to weigh the evidence, but must respect the finding, whether it is or is not such as would have been made by that Court. (Berry v. Zowe, 10 Mich, 9).

      Assignment of error. — In an affidavit for a certiorari, an allegation of error, tliat there was no evidence to sustain the verdict and judgment, is too general and uncertain to be noticed. Per Manning J., Mabtin Oh. J. concurring.

      Waiver of tort. — A plaintiff may recover on a declaration for pasturing cows, on proof showing that his land was used by the defendant for that purpose. If the use was without the plaintiff’s consent, defendant was a trespasser, and plaintiff might either sue him in trespass, or waive the trespass and sue in assumpsit. Per Manning J., Martin Cii. J. concurring.

      Heard October 15th.

      Decided November 10th.

    Error to Wayne Circuit.
    Suit was brought by Welch against Bagg before a .justice, where he declared in assumpsit, “ for pasturing cows by the plaintiff, for the defendant, in the Detroit Riding Park, so called, in the year 1862; and upon the common counts.” Defendant pleaded the general issue, with notice ■of special defense. The c&use was tried by a jury, who rendered a verdict for plaintiff. Defendant removed the cause by certiorari to the Wayne Circuit Court, assigning in his affidavit for the writ, the following grounds of error:

      First. That there was no evidence to sustain said verdict and judgment.

      Second. That there was no evidence showing any lease to, or right of defendant to pasture his cows on said premises.

      Third. There was no evidence to sustain the relation of landlord and tenant between the parties.

      Lastly. The court refused to charge the jury,- as requested by defendant.
    All the evidence given on the trial before the justice was incorporated in his return to the writ of certiorari, but it is not deemed important to give it here. The Circuit Court reversed the judgment of the justice, and Welch brought error.

      H. M. Cheever, for plaintiff in error.

      D. 0. Holbrools, for defendant in error.
   Manning J.:

Welch obtained a judgment against Bagg in a justice’s ■court. Bagg removed the cause by certiorari to the Circuit Court, where the judgment was reversed, and thereupon 'the plaintiff sued out a writ of error from this Court.

The affidavit for a certiorari to a justice’s court, must ¡state “ the grounds upon which an allegation of error is founded:” — Comp. L. § 3869. In other words, it must state in what the error of the justice in rendering the judgment consists, that the officer in allowing the writ, and the court afterwards in deciding the cause, may not be required to look through the whole case to see if there is not some-, thing on which it may be reversed. It is to be heard in the Circuit Court “without any assignment or joinder in error, unless there be an allegation of error in fact:” — ■ Comp. L. § 3880. The errors complained of in the affidavit are the assignment of errors. In the present case they ■are as follows:

First. That there was no evidence to sustain said verdict and judgment.

Second. That there was no evidence showing any lease to, or right of defendant to pasture his cows on said premises.

Third. There was no evidence to sustain the relation of landlord and tenant between the parties. There was a fourth, but that was abandoned on the argument.

The first ground of error is too general and uncertain to challenge the attention of the Court. It does not state a total want of evidence to prove some fact necessary to establish the plaintiff’s cause of action. When the objection is want of evidence, the particular fact of which there was no evidence before the justice, should be stated in the affidavit. If there was evidence before the justice to prove every fact necessary to sustain the judgment, the Circuit Court can not reverse it, however much it may be dissatisfied with the conclusion of the justice or jury. It can not weigh the evidence as a whole, or on any particular fact to be proved. All it can do is to inquire whether there was a total want of evidence before the> justice to prove some fact that should have been proved to sustain the action, and to reverse the judgment for the want of such evidence i — Berry v. Lowe, 10 Mich. 9.

The second and third grounds of error are good in form but bad in substance.

It was not necessary to prove them to sustain the action. The plaintiff declared orally in assumpsit, for pasturing defendant’s cows. To sustain his action it was not necessary to prove a lease to defendant, or the relation of landlord and tenant. Such facts, instead of proving, would have •disproved the plaintiff’s action. If defendant had a lease from plaintiff, he might be sued for the rent, but not for pasturing his cattle on leasehold premises. As to defendant’s having no right to pasture his cows on plaintiff’s land, which is one of the alleged grounds of error; if it were so, the evidence shows he used the plaintiff’s land for that purpose, and if he did it without plaintiff’s consent, he was a trespasser, and plaintiff might sue him in trespass, or waive the trespass and sue him in assumpsit, as he has done, for pasturing his cattle.

The judgment of the Circuit Court, reversing the justice’s judgment, I think should be reversed, and the justice’s judgment affirmed, with costs in this and the Circuit Court.

Martin Ch. J. concurred.

Campbell J.:

Plaintiff sued defendant before a justice, for the price of pasturing certain cows; and obtained judgment.

The Circuit Court reversed this judgment on certiorari, for want of proof.

The errors assigned by the affidavit for certiorari were, that there was no evidence to support the judgment, and two specific allegations that there was no evidence showing any lease to or right of defendant to pasture his cows on the premises, and none to sustain the relation of landlord and tenant. It was held by this Court in Berry v. Lowe, 10 Mich. 9, that the Circuit Court could not reverse the judgment of a justice on the evidence, unless no proof could be found in the case which, if believed, would maintain it. If there is á conflict of testimony, and still evidence has been put in which covers the whole case, so far that, if believed, it would warrant a verdict, the Court above must respect the finding, whether it is, or not, such as would have been made by the appellate court if it had power to weigh the evidence. This rule has not been observed in the case before us. There is evidence tending to show that both parties regarded the cattle as rightfully put in the plaintiff’s pasture, and that it was expected on both sides that the plaintiff would be paid for the pasturage.

The evidence was pertinent, and satisfied the jury. Their finding could not lawfully be disturbed.

The judgment of the Circuit Court should be reversed, and the justice’s judgment should be affirmed, with costs of all the courts.

Christiancy J. concurred in this opinion.

Judgment reversed.


author: Manning J.:

text:
    The Detroit and Milwaukee Railroad Company v. Stephen Griggs and others.

      Former suit when not a bar. — Bill to foreclose a mortgage given for the purchase price of lands, which were conveyed to the mortgagor by deed covenanting against incumbrances. The mortgagor defended, claiming to have the amount of two mortgages, which were liens on the premises when conveyed to him, but which he had not yet paid, deducted. The deduction not being allowed, the mortgagor, after decree, paid off the prior mortgages, and then filed his bill to have the sums so paid set off and deducted from the amount of the decree. It was held, that the bill might be maintained, and that the adjudica» . tion in the first suit was not a bar to it.

      Covenant against incumbrances: Election of remedies. — Th© -purchaser in such? ease is not confined to Ms remedy upon th© covenant, but is entitled, especially when the covenantor is insolvent, to have existing incumbrances deducted from Ms mortgage.

      Heard October 27th and 28th.

      Decided November 10th.

    Appeal in chancery from Wayne Circuit.
    The complainants, by leave of the Court, filed their bill of complaint, setting forth:
    That on May 23, 1854, the Detroit and Pontiac Railroad Company purchased lots eleven, twelve and thirteen, according to the recorded plat of the Lambert Beaubien farm, of Thomas Firby, for $17,000, and received therefor a deed with covenants against incumbrances and of title; that they paid Firby $1,000 down, and gave him a mortgage for $16,000, the balance of the purchase price, with interest at ten per cent; that the company then supposed the premises purchased were unincumbered, and relied upon Firby’s representations that they were so; that subsequently the Detroit and Pontiac Railroad Company was, by due authority of law, consolidated with the Oakland and Ottowa Railroad Company, under the name of the Detroit and Milwaukee Railway Company, whereby said last company became entitled, among other things, to the said premises}
    That Firby assigned said bond and mortgage to Caleb and Albert Ives, by an instrument absolute on its face, but really intended as collateral security for a sum of money he was then owing them, and afterwards, subject to their rights, assigned the same to Stephen Griggs, also as security, for a debt owing to him:
    That on August 9, 1859, said Griggs filed his bill in said Court against the Detroit and Milwaukee Railway Company, Thomas Firby, Caleb and Albert Ives, John M. Forbes, John W. Brooks, Charles J. Brydges, Thomas Reynolds, Henry C. R. Beecher, John Owen, James V. Campbell, George F. Porter, Jared C. Warner, Frederick C. Gebhard, Erastus Corning and Matilda Firby (all of whom are also made parties to this bill), in which bill, after setting forth the facts above recited, it was stated that, on March 24, 1858, said Caleb and Albert Ives filed their bill in said court against said Railway Company, and Brooks, Forbes and Griggs, to foreclose said mortgage, and decree was entered thereon February 8, 1859, by which it was adjudged that there was due and unpaid on the bond and mortgage $10,454 64, of which $6,808 01 was to be paid to C. <& A. Ives, and $3,200 33 to said Griggs, with interest from January 10, 1859; and said decree also contained the usual order for the sale of the mortgaged premises; said bill also alleged that the Railway Company had made mortgages on said premises to Brydges, Reynolds and Beecher as trustees, and that they, after such decree, had in some way paid said C. & A. Ives for their interest in said bond and mortgage, and taken an assignment thereof, and that they did not now intend to proceed under the decree, and they denied the right of Griggs to do so; and it prayed that said decree might be declared in full force and effect, and be executed, or that a decree of foreclosure should be granted in the usual form; and it also prayed that Griggs might be subrogated to the rights of C. & A. Ives in a collateral mortgage executed to them by Firby to secure the same debt:
    That answers were filed by a portion of the defendants to said Griggs bill; the answer of the Detroit and Milwaukee Railway Company, Brydges, Reynolds, Beecher, Owen, Campbell and Porter, admitting the facts set forth in the bill, save that it stated that the transfer of the Ives interest was to Brydges and Reynolds alone; and setting up as a defense that, when the Detroit and Pontiac Railroad Company purchased the premises of Firby, lot thirteen was subject to a mortgage executed to one Penny, for $2500 and interest, which was foreclosed, and the premises sold to Brydges and Reynolds for $1,750 or thereabouts; and that lots eleven and twelve were, as appeared of record, subject to a mortgage for $4000 and interest, executed to one Wilder; that Firby was insolvent; and the answer claimed that the amount of these two mortgages should be deducted from the amount due on the Railroad Company’s mortgage to Firby:
    That decree was made on said Griggs bill, March 18, 1862, for a sale of the premises to satisfy1 the amount due ■on the Railroad Company’s mortgage to Firby, not deducting therefrom the amount of the Penny and Wilder mortgages; and this decree was afterwards affirmed by the Supreme Court. [See 10 Mich. 111.]
    The present bill further sets forth, that the present complainants, the Detroit and Milwaukee Railroad Company, have become the successors and entitled to all the rights of the said Detroit and Milwaukee Railway Company; that after decree in the Griggs suit, Brydges and Reynolds demanded of the Railroad Company possession of lot thirteen as purchasers thereof under the Penny mortgage, and that the company was compelled to and did, on June 28, 1862, purchase the same, and receive a conveyance from said Brydges and Reynolds, for $1,961 80; that George Jerome, who had become owner of the Wilder mortgage, also demanded payment of that, and on June 28, 1862, the company paid him $3,000, and took a discharge thereof.
    And the bill therefore prays, that the decree in the Griggs suit should be reviewed and reversed, or that its execution should be enjoined, and a new decree entered, by which the amounts so paid by the company to release the premises from the Penny and Wilder mortgages should be allowed, and deducted from the amount due on the Railway Company’s mortgage to Firby.
    To this bill, Griggs demurred generally, and the Court below sustained the demurrer.

      D. G. HolbrooTc, for defendant Griggs:
    The law of equity is, that where a party has it in his power to make a defense, it must be made; nothing but the want of knowledge of the defense, or new evidence, will allow any bill to be filed to review a decision.
    In this case there is stated in the bill such facts as the law declares full notice and knowledge of the defense. The bill in this case admits that before Griggs filed his bill, the complainant, as an actual fact, had knowledge of those incumbrances outstanding. These matters would defeat a bill of review.
    The only bill mentioned in the books allowed after a decree to affect its merits, is a bill of review; and a bill of review can only be filed to correct errors apparent in the pleadings and decree, or for new facts or evidence not known, and which could not by diligence be discovered before the decree was entered.
    The following references show that this bill cannot be sustained: — Adams Eq. 397 note 2; Story Eq. Pl. §§ 412, 413, 414, 415; Welford Eq. Pl. 239; Cooper Eq. 91, 92; Mitford, 6 Amer. ed., note 2 pp. 101, 102; 16 Ves. 348; 6 Madd. 127; 5 Whart. 26; 7 W. & S. 454.
    If the payment of those mortgages constituted any defense to reduce the amount due Firby, then it was the duty of the railroad company to have paid them, and set the fact up in its answer. The law authorized the company to pay these mortgages as well before as after the decree. And now the company asks to be relieved from its own neglect, and that the Court shall set aside and change its records and adjudications, as the pecuniary convenience of the c.ompany may fluctuate: — 15 Ohio, 317; Story Eq. Pl. § 414; 1 Dana, 303; 2 Dana, 276; 1 Met. Ky. 226; Saxton, 413.

      Gray ck O'Elynn and E. H. Emmons, for complainant, cited the following authorities:
    1.. That the proper remedy has been adopted :— Story Eq. Pl. §§ 404, 415, 416, 388, 428; 2 Barb. Ch. Pr. 93, 94; 17 Ves. 178; 5 Mason, 313; 1 Head, 484; 4 J. J.

      Marsh. 500; Story Eq. Juris. 887; 2 Hill, Ch. 152; 15 Mass. 207; 15 Barb. 515; 4 Johns. 191; 1 Cow. 42; 4 Duer, 148; 3 Comst. 216; 18 How. 421.
    2. That the purchasing of the outstanding title and payment of the mortgage, without waiting for actual eviction, entitle the complainant to have the amount deducted from the bond and mortgage given by Firby: —13 Johns. 105; 2 Wend. 405; 7 Johns. 358; 4 Mass. 627; 16 Johns. 254; Ibid. 122; 17 Wend. 188; 20 Pick. 474; 9 A. & E. 809; 8 M. & W. 829, and n. 833; 11 A. & E. 315; 2 Allen, 111; 5 Blackf. 102; 1 Ind. 187, 201 ; 6 Barb. 165; 3 Zab. 271; 21 N. Y. 191.
    3. That the former decree is not a bar to the present suit: — 3 B. Monr. 39; 9 Paige, 445; 6 Wend. 284; 3 Sandf. Ch. 117 ; 29 Barb. 243; 9 S. & R. 524; 1 Yerg. 457, 470; 8 Pick. 113; 17 Mass. 590 ; 4 Mass. 352; 4 T. R. 617; 10 Me. 170; 12 Mass. 304; 36 Me. 455 ; 26 Miss. 599; 13 S. & M. 445; 8 Pick. 550 ; 8 Johns. 442.
   Manning J.:

It is insisted that the relief sought by the present bill should have been made a defense in the case of Griggs v. The Detroit and Milwaukee Railway Company, and others, reported in 10 Mich. 117. The Penny and Wilder mortgages had not then been paid by complainant. Had they been paid at that time by complainant, the objection would be conclusive. Complainant insisted in its answer to that suit, that it was entitled to have the amount of these mortgages deducted from its mortgage to Firby, without having first paid them.

That was the defense made in that suit. The Court decided otherwise, and a decree was entered for the full amount due on its mortgage to Firby. The present bill, after setting forth the proceedings had in the former suit, states the subsequent payment by complainant of the mortgages, and asks to have the amount so paid deducted from the decree in the former suit.

The relief sought is in the nature of an equitable set off.

To a correct understanding of the present controversy, it is only necessary to state, that the Firby mortgage assigned to Griggs, was one given by the Detroit and Pontiac Railroad Company, now the Detroit and Milwaukee Railroad Company, to secure the purchase money of the mortgaged premises, on the conveyance thereof by Firby to the railroad company by a warranty deed, with a covenant against incumbrances. Griggs’s rights are Firby’s rights, no more, no less. He stands in Firby’s shoes. And he insists the present bill can not be maintained, because it was complainant’s duty, after having put in its answer in the former suit, to have filed a hill against the holders of the Penny and Wilder mortgages, making Griggs a party, in the nature of an original and cross bill, to have the first mortgage moneys due and payable on the Firby mortgage, applied in payment of the Penny and Wilder mortgages. Such a bill, we think, might have been maintained. We see no reason why it should not. But could not the same thing have been accomplished by Griggs, had he amended his bill, stating these outstanding mortgages, and making the holders thereof parties, and asking to have them paid from what was due on the Firby mortgage ? We think it might. If correct in this, the company was no more in fault in not filing a bill to accomplish the object, than Griggs was in not amending his bill to effect the same thing. If either was under a greater obligation than the other, it was Griggs. It was for him, as the representative of Firby, to remove the alleged stumbling block that stood in the way to the payment of the Firby mortgage. If he is delayed in reaping the fruits of his suit by the present bill, is not the fault his own — one that he, as well as the company, might have obviated had the proper steps been taken by either pending the first suit?

It was Firby’s duty to pay these mortgages, not the company’s. He failing or omitting to do it, the company had a right to pay them, and set off the amount against what it was owing on its own mortgage.

The question of payment was not before us in the former suit. The question, as already stated, was whether the company could set off these prior mortgages without paying them. We decided it could not. It has siuce paid them, and thereby acquired a right that did not exist pending the first suit. And having the right now, it may file a bill to enforce it as it has done in the present case. Complainant might sue Firby on his covenant against incumbrances; but it is not confined to that remedy. It may file a bill to indemnify itself out of the purchase money it is still owing; more especially when the covenantor, as the bill alleges, is insolvent, and the remedy at law would be inadequate. The decree of the Circuit Court is reversed, with costs, and the demurrer of defendant is overruled, with leave to be given in the Circuit Court to defendant to answer, on paying the costs in that Court of ■overruling the demurrer.

Martin Ch. J. .and Christiancy J. concurred.

Campbell J. did not sit in the case.


author: Chbistiancy J.:

text:
    Robert Carter v. Henry Hobbs.

      Liability of an innkeeper: What is a “guest.” — -In order to make one liable aa inn-keeper at the common law, for goods lost at his inn, it must appear that he was acting in the capacity of inn-keeper on the occasion when the goods wore received, and that the owner was his guest: in other words, that the latter visited the inn for purposes which the common law recognizes as the purposes for which inns are kept.
    A ball was given by a fire company at the inn of defendant, the defendant furnishing dancing room, supper, and dressing room, and being paid therefor by the company, at the rate of one dollar for each supper ticket. The ball tickets were sold by the fire company, at two dollars each, and these were taken up at the door of the dancing room, by a person employed by the fire company, and supper tickets given in their stead. The plaintiff, who was a guest at another inn of the town, went to the ball, purchased a ticket therefor at the baggage room, delivered his overcoat, fur collar and gloves, at the-office of the hotel, to the clerk, and registered his name, and remained at the hall until it broke up in the morning, when, on calling for his overcoat, collar and gloves, [they could not be found. During the night, the plaintiff had spent some money, for liquors and cigars, at a saloon kept by the defendant in connection with the hotel. It was held that these facts did not show the relation of inn-keeper and guest to exist between the defendant and the plaintiff; that the former did not receive the goods in his capacity as inn-keeper, but merely as an ordinary bailee.

      Heard October 16th.

      Decided November 10th.

    Case made after judgment, from Saginaw Circuit.
    The action was originally commenced before a justice of tbe peace, and plaintiff declared, “for that whereas, tbe plaintiff became and was a proper guest at tbe inn of tbe defendant, kept in tbe city of East Saginaw, Saginaw county, on tbe 21st day of February, 1862, and this plaintiff deposited with defendant, as inn-keeper, bis, plaintiff’s, overcoat, and • a pair of gloves and a fur collar, all of tbe Value of $25; that when plaintiff saw fit to leave be called for bis said coat, gloves and collar, and tbe defendant did not then nor has be since delivered said goods to tbe plaintiff, although often requested so to do. Tbe plaintiff asks of the court a judgment for tbe recovery of tbe value of said goods as above enumerated.”
    Tbe case having been removed to tbe Circuit Court by appeal, evidence was there given upon which tbe Court rendered judgment for tbe plaintiff. The facts shown by tbe evidence are set forth in the opinion.

      Sutherland <& Miller, for plaintiff,
    argued that, even if' tbe plaintiff did not become tbe guest of defendant, tbe latter would be liable for not returning tbe goods, unless they were lost without bis fault. But tbe plaintiff did become bis guest, in a legal sense, so that be is responsible for tbe goods, unless they were lost by tbe act of God, tbe pubbc enemies, or by tbe act of tbe plaintiff: — Edw. on Bailm. 402-7; 9 Pick. 280 ; 5 Barb. 564; 5 Blackf. 323; 14 Johns. 175; 9 Wend. 114; 3 Hill, 488; 1 A. & E. 522; 5 Q. B. 164; 8 Wend. 547 ; Story on Bailm. § 470.

      W. L. Webber, for defendant:
    The extraordinary liabEity of the inn-keeper does not exist except as to those who are the guests of the house:— Edw. on Bailm. 394-412; 8 Blackf. 537; 3 Hill, 488. Plaintiff was not such a guest. See definitions, “Guest,” Webster, New Am. Cyc., Bouv. Law Dic.; “Inn,” Bac. Abr. Inns, B. ; Calye’s case, 8 Coke, 32, and note in 1 Smith Lead. Cas.; 7 Cush. 417; 3 Hill, 488; Story on Bailm. § 477; Bateman's Merc. Law, 453-9. Plaintiff did not visit either the house or the saloon for the purpose for which inns were instituted. He went not as a traveller, nor as one seeking rest and lodgings, but for amusement, and merely because the party happened to be at' that house. Had it been at a public hall, unconnected with a hotel, he would hardly have claimed the extraordinary, liability of an inn-keeper to exist. Defendant had nothing to do with the individuals who attended the party; he did not look to them for pay, and could have no lien therefor upon goods deposited by them with him.
   Chbistiancy J.:

The plaintiff seeks to recover for the loss of his property, solely upon the ground of the defendant’s liability as inn-keeper; and his declaration will not warrant a recovery on the liability of an ordinary bailee. The facts of the case, so far as they are material to the question, are undisputed, and are substantially these: The defendant was the keeper of an inn or hotel, in East Saginaw, known as the Bancroft House. The plaintiff, though not a resident of the place, was at the time a guest at another inn, across the street, known as the Exchange Hotel, where he lodged and took his meals.

There was a firemen’s ball at the defendant’s hotel on the night in question, which the plaintiff attended. The arrangement for the ball between the fire company and the defendant was, that defendant was to furnish dancing room, supper and dressing rooms, and was to be paid by the company, one dollar for each supper ticket. The tickets for admission to the ball were sold by a committee of the fire company at different places (part of them being sold at the door of the baggage room of the hotel, where the plaintiff purchased his). The price of these tickets was two dollars each. The reception committee was appointed by the fire company. At the door of the dancing hall, the ball tickets were taken up, and supper tickets given in their stead, by a man employed by the company.

The plaintiff, on going to the ball, delivered his overcoat, fur collar and gloves, at the office of the hotel, to the son of the defendant, who was clerk, and also registered his name. During the night, he spent money for liquor and cigars at a saloon kept in connection with the hotel, the defendant being proprietor of both, and the articles being sold by his servants. The saloon was on the ground floor, had a front entrance from the street, and a door at the rear opening into the hall of the hotel, and separated from the office by a hall leading to the dining room and the guest’s washing room. Plaintiff remained at the party (ball) till it broke up, about five or six o’clock in the morning. Upon calling for his coat, collar and gloves, the defendant and his son looked for them, and they were not to be found.

Upon these facts, was the defendant liable as inn-keeper at common law? This is the only question in the case.

The common law liability of an inn-keeper, for the loss of the goods of his guest, is special and peculiar; depending (like that of common carriers) upon peculiar grounds of public policy, somewhat analogous to those which rendered the hundred liable for robberies: —Smith's Lead. Cas. (ed. 1852) 265 ; Story on Bail. §§ 464, 471 : and while ordinary bailees are held responsible only on proof of loss arising from some fault on their part, such as negligence or want of diligence, the inn-keeper is held liable without proof of any negligence or fault; and, except in special cases, can not discharge himself by showing that the loss occurred without his fault or that of those in his employ.

But to hold the defendant liable as inn-keeper, it must appear not only that the defendant kept an inn, and that the goods were lost there, but that he was acting in the capacity of inn-keeper on the occasion when the goods were received, and that the plaintiff was his guest; or, in other words, that the plaintiff visited the inn for purposes which the common law recognizes as the purposes for which inns are kept.

By the original writ, specially framed for enforcing the liability of inn - keepers, as well as by the cases generally, an inn would seem to be a house kept for the accommodation and entertainment of travellers and wayfaring men, and not for those residing in the same neighborhood, who may visit, or others who may remain at the house for some special purpose not connected with passage or travel. See Calye's case, 8 Coke, 63 and note to same, 1 Smith Lead. Cas.; also note to Coggs v. Bernard, ibid.

In Thompson v. Lacy, 3 B. & Ald. 283, is said “the true definition of an inn is a house where the traveller is furnished with every thing which he has occasion for whilst on his way.” In Bac. Abr. "Inns, B.”, an innkeeper is defined to be “a person who makes it his business to entertain travellers and passengers, and provide lodging and necessaries for them, their horses and attendants.” In Calye’s case, above cited, it is said “common inns are instituted for passengers and wayfaring men,, and therefore if a neighbor, who is no traveller, as a friend at the request of the inn-holder lodges there, and his goods be stolen, &o., he shall not have an action; for the writ is ad hospitandos homines, &c., transeúntes et in eisdem hospitantes, &c.”

So if a person come to an inn on a special contract to board there, the law treats him not as a guest, but as a boarder: — Bac. Abr. “Inns, C. 5,” Parkhurst v. Foster, 1 Salk. 388; and the goods of a permanent boarder are not protected as those of a guest: — Manning v. Wells, 9 Humph. 746; Kisten v. Hildebrand, 9 B. Monr. 72, 74. So if a person, who is a guest, have a room specially for the purpose of showing or selling his goods, he can not hold the inn-keeper to his liability strictly as such, in respect to these goods: — Burgess v. Clements, 4 M. & S. 306.

In view of these authorities, and others which might be cited, we do not think the facts of this case show that the relation of inn-keeper and guest existed between the defendant and the plaintiff; nor that the defendant received the goods in his capacity of inn-keeper, but merely as -an ordinary bailee. He could not, we think, have had a lien upon them for the plaintiff’s bill. The plaintiff was no more the guest of the inn than any person residing across the street, and attending the ball on the same occasion. If a guest at all, he was rather the guest of the fire company. The defendant, on this particular occasion, was no more acting in the character of inn-keeper, as to those attending the ball, than any other person furnishing the rooms and supper, at any other house, for such special occasion. The plaintiff did not resort to the hotel for any purpose which brings him within the common law definition of the guest of an inn.

The judgment of the Court below must be reversed, and the defendant is entitled to a judgment in this Court for his costs in both courts.

The other Justices concurred.


text:
    Mark Flanigan v. Sidney S. Lampman.

      Proof of frwud, in voluntary assignment. — "Where a voluntary assignment, ostensibly for the benefit of creditors, is assailed as fraudulent, tlie most liberal rules should prevail for the admission of any evidence which may tend to prove the fraud. The whole conduct of the assignee with reference to the property, after the assignment, should be allowed to be shown, as bearing upon the question of the intent with which the assignment was made. If that conduct has been entirely consistent with the professed objects of tbe assignment, it can not prejudice : but if it tend to show that the assignor still claims and seeks to derive a benefit from the property, to tlie prejudice of his creditors, it will generally tend, in a greater or less degree, to show that the assignment was originally made with this fraudulent purpose.
    The assignee does not stand in the position of a bona fide purchaser for a valuable consideration; and the fraudulent intent of tlie assignor, in making the assignment, is sufficient to defeat the title of the assignee, though he may he innocent.
    The defendant assailed an assignment as fraudulent; and having shown that one of the assignors bought of the assignee a horse and carriage, constituting a part of the assigned property, ostensibly as agent of his brother-in-law, who was a preferred creditor, and whose claim was alleged to be fictitious, ho then asked the witness, u Who had and kept possession of said horse and carriage, after such sale, and up to the time of the present trial?’1 It was held that the question was proper, and the Court should have allowed it to he answered»

      •Curing the error where evidence has been erroneously excluded. — -Where a question put by a party to his own witness is erroneously overruled, the error is not cured by his being allowed afterwards to put the same question to the witness of the other party on cross - examination.

      Heard November 3d.

      Decided November 10th.

    Error to Wayne Circuit, where Lampman sued Flanigan in replevin. To show title to the property replevied, the plaintiff produced in evidence a general assignment for the benefit of creditors, and gave evidence on the subject of possession of the chattels mentioned in said assignment, by virtue thereof; aBd rested.
    The defendant justified as sheriff, under a writ of fieri facias, against the assignors in said assignment, Frost, Lane & Co., by virtue of which he had seized the property iu question, after the day of the date of such assignment; and he produced and offered evidence tending to show fraud iu said assignment, and in the possession of said assigned property after such assignment; and called one Whittemore as a witness; and he having testified that Frost, one of said assignors, bought certain horses and carriages of the assigned property at private sale from the assignee, ostensibly as the agent of one Charles Ashworth, his (Frost’s) brother - in - law, and one of the two preferred •■creditors in said assignment, and whose claim was alleged by defendant to be fraudulent and fictitious, said Whittemore was asked by defendant’s counsel, “Who had, and kept possession of said horse and carriage, after such sale, and up to the time of the present trial?” To which question the plaintiff objected. The Court sustained the objection, •and excluded the evidence.
    The defendant, afterwards, on cross - examination of Charles Ashworth and Milton Frost, two of plaintiff’s wit-nesses, asked them the same question put to said Whittemore, ■and said witnesses replied, that Frost did keep possession of ■said property up to the last trial, but as agent of said Ashworth; and another of plaintiff’s witnesses, George M. Lane, on cross-examination by defendant, testified, “the said property remained in his possession at the time of the former trial.’’
    The jury returned a verdict for the plaintiff.

      H. M. Gheever and W. JEJ. Gheever, for plaintiff in error,

      •J. P. Whittemore, G. V. JST. Lothrop and L. Bishop, for defendant in error.
   Chbistiancy J.:

We think the question put to the witness Whittemore, on the part of the defendant below, was erroneously overruled.

Assignments, ostensibly for -the benefit of creditors, are so frequently resorted to by embarrassed debtors for their own benefit, as a convenient method of securing to themselves the property which justly belongs to their creditors, that, to avoid injustice, the most liberal rules should prevail for the admission of any evidence which may tend to prove the fraud. Possession of the assigned property by the assignor, or Ms control over it, after the assignment* has always been held to have a strong bearing upon the question of intent with which the assignment was made. And this species of evidence is perhaps more generally resorted to than any other, to show a fraudulent intent in the execution of the instrument. And we think the whole conduct of the assignee with reference to the pro~ perty, after the assignment, should be allowed to be shown, as bearing upon the question of intent. If that conduct has been entirely consistent with the professed objects of the assignment, it can not prejudice; but if it tend to show that the assignor still claims and seeks to derive a benefit from the property, to the prejudice of his creditors, it will generally tend, in a greater or less degree according to the circumstances of the case, to show that the assignment was originally made with this fraudulent purpose.

But it is urged that the question overruled related to possession after the sale by the assignee; and that, to affect his title, it should have been while he had control of the property, and that he must in some way have assented to-it. But it had already been shown, by the same witness, that one of the assignors had bought certain horses and carriages of the assigned property, at private sale, from the assignee, ostensibly as the agent of one Ashworth, his brother-in-law, who was one of the preferred creditors mentioned in the assignment, and whose claim the defendant below insisted was fraudulent. If, therefore, it could be shown that the assignor, after this ostensible purchase, had kept possession of the property himself, down to the time of the trial, this, unexplained, would have some tendency to show, not only that the ostensible purchase in the name of Ms brother-in-law was but a sham, but also, in some degree, to show that the assignment had been made by him with a fraudulent intent. And though the assignee might have acted in good faith, and in ignorance of this fraudulent intent, either in the purchase or the assignment; yet, if the assignment he found to have been made with this intent by the assignor, it would he void as to his creditors. The assignee does not stand in the position of a bona fide purchaser for a valuable consideration; and the fraudulent intent of the assignor, in making the assignment, is sufficient to defeat the title of the assignee, though he may be innocent.

The error in overruling the question put to Whittemore was not cured by the defendant’s being allowed to ask the same question of the plaintiff’s witnesses, on their •cross - examination. A party can never he precluded from introducing competent evidence from his own witnesses, and compelled to trust the proof of any. part of his case to the ■evidence he may he able to draw out on the cross-examination of those of his adversary. To hold that, by cross examining tbe witnesses of the adverse party upon the same matter, he had waived the error of the Court in excluding competent evidence offered in chief, would he to hold that he ought to have made the error of the Court as prejudicial to himself as possible. No amount of authorities could establish the soundness of such a proposition.

The judgment of the Circuit Court must he reversed, with costs of both courts, and a new trial granted.

The other Justices concurred.