text:
    Reuben Town and others v. Shubael Smith.

      Judgment by confession in a Justice's Court, when a bar to subsequent suit. Where judgment was confessed upon a note before a Justice, but an error was committed by the Justice in entering up the proper amount: JJeld^ that the note and. indebtedness upon which it was given, were merged in the judgment, and constituted a bar to a suit for the omitted amount; and that there was no distinction between the effect, as a bar, of a judgment by confession, and one rendered upon a trial.
    The Justice probably might have corrected the mistake by amending the judgment before it was stayed, or any further proceeding was taken upon it, as for a smaller amount, or the plaintiff might have appealed.

      Mroneous judgment collected on execution, how far binding on plaintiff. Where in such case execution had been issued and satisfied, the plaintiffs must be held to have elected to treat the judgment as one for the less amount, and to be as much bound by that election as though they had originally consented to take judgment for said amount.

      Submitted April 27th.

      Decided July 11th.

    Case made from Macomb Circuit.
    Plaintiffs sued defendant before a Justice of the Peace to recover the amount due upon a promissory note. The declaration was in assumpsit on the common counts, and to which was attached a copy of the note, being for $192.
    The defendant confessed judgment thereon, and the same was entered up, and rendered by said justice, through mistake, for $92.09, and interest, instead of $192.09, the true amount. The present suit was brought before the same justice, to recover the balance of said note, to wit: $100 and interest. Defendant plead the general issue, and gave notice of the previous judgment, in bar.
    The case was tried on appeal in the Circuit Court, without a jury, upon the following admitted facts, to wit:
    That the defendant made and signed the note set forth in the plaintiffs’ declaration, being the same note upon which this suit is brought, and that there was written across the face of it the following words and characters, by Ezra Hazen, Esq., who was then a justice of the peace of St. Clair County to wit:

      “ Judgment rendered on this note in favor of Town, Smith & Sheldon, August 9th, 1858, for $97.00.
    E. Hazen, J. P.”
    And that on the 9th day of August, a. d. 1858, the whole amount of said note being then due, the defendant appeared before Ezra Hazen, Esq., who was the collecting agent of the plaintiffs, and then a justice of the peace of the county of St. Clair, and regularly confessed judgment upon said note aforesaid, and for the whole amount thereof before said justice, in the form and manner required by law.
    That the said jirstice proceeded to and did enter up judgment upon said note and confession; but by mistake rendered the same for one hundred dollars and interest, less than it should have been.
    That in all other respects, (as defendant insists), the judgment was regular and in due form of law; that the note now sued upon was, and is the same note upon which judgment was confessed and rendered as aforesaid.
    That upon the rendition of said judgment the same was stayed; 'and upon the expiration of the stay, execution was issued and collected, and returned fully satisfied. But that such execution followed the entry of judgment, and was for one hundred dollars and interest less than the amount actually due upon the said note, and for which said judgment was confessed as aforesaid; and thereupon an entry of satisfaction was entered upon the said judgment.
    Whereupon the Circuit Judge on the second day of January, 1866, at the January term of said court, rendered a judgment in favor of the said plaintiffs against the said defendant, for the sum of one hundred dollars and interest, with costs of suit to be taxed.

      Maynard, Meddaugh & Swift, for plaintiffs.
    1. A judgment by confession, unless it be shown that the statute has been strictly complied with, is a nullity. — 2 Doug. Mich. 199; 1 Mich. 19, 156.

      It is stated in the case made, that the defendant “ regularly confessed judgment upon said note, for the whole amount thereof, in the form and manner required by law,” but that the justice, by mistake, rendered judgment “ for one hundred dollars and interest less than it should have been.”
    If the defendant, in his confession, had stated the actual sum due uj>on the note, it is difficult to see how the justice could have made the mistake as to the interest on the flOO.
    We can understand how he might have omitted the one hundred dollars; but how, without some figuring, he could have left out the interest on it, it is impossible to conceive. It is evident, therefore, that, by the confession “ for the whole amount of said note,” is meant such sum as by computation should appear to be due; and this, also, is what the words themselves naturally import.
    There was, therefore, no confession of indebtedness “ in a certain specified sum,” as required by the statute.- — -2 Comp. L. § 3625. The justice, therefore, acquired no jurisdiction by the confession, and the judgment was a nullity.
    2. Again, the plaintiffs did not consent to the judgment. The fact that Ilazen was tlieir collecting agent, would not authorize him to consent to a judgment for less than half the amount of their claim. There is- nothing in the case to show that plaintiffs knew of the confession and judgment thereon, until the money was collected on the execution.
    3. Again, the judgment was not “ on such confession,” but for a sum more than one-half less than the sum confessed to be due.
    Where judgment is rendered upon default, without deducting- payments made, suit may afterwards be brought to recover such payments. — 16 Mass. 306; 26 Barb. 463; 4 Pick. 29; 4 Id. 521; 29 Miss. 41.
    If it be claimed that the entry of less than half the amount confessed to be due, was a mere clerical error, and that the judgment was good for the whole amount, then we claim that, under our statute, (2 Comp. L. § 4550) we can recover the balance of said judgment, under the declaration in this case.
    Under the statute, it would seem that the liability to pay the judgment in money, would form a sufficient consideration for an implied promise under the money counts.

      Mitchell and Farrand, for defendants.
    1. The judgment, by confession, was conclusive between the parties, as to all the matter sought to be embraced in the confession, as much as it would have been upon default or trial.
    A judgment, as well by confession or otherwise, is conclu-. sive while it is in force, as to everything that might have been pleaded or given in evidence in defense, except matter in set-off. — 1 Chip. 304. This doctrine must apply as well to the claim of the plaintiff as the defendant, and must conclude the plaintiff as to any part of an indivisible claim not embraced in the judgment. — 5 Gill. and Johns. 52.

    There is no difference between the effect of a judgment by confession, unless there are circumstances of fraud about it, and a judgment upon trial.
    Where a demand has been once submitted to a jury, it will operate as a perpetual bar to an action for the same.' — 2 Johns. 191-210; 10 Id. 365; 16 Id. 136.
    2. Where an action is brought for a part only of an entire and indivisible demand, the verdict and judgment in that action are a conclusive bar to a subsequent suit for another part of the same demand. — 16 Johns. 121-136; 1 Wend. 487; 8 Id. 492; 13 Id. 644; 15 Id. 557.
    3. The confession was equivalent to a judgment for the entire amount stated in it, and might have been so treated. The entry of judgment was formal, and could have been corrected to meet the confession. It was equivalent to the verdict of a jury. The justice had the power to amend the judgment and should have done so. — 2 Cow. Tr. 587; 2 Comp. L. § 4415.
    4. The note was merged in the confession and judgment, and was legally extinguished or cancelled thereby, so that no new suit can be brought or sustained thereon. — 3 Comst. 210; 18 Johns. 459; 4 Smith, N. Y. 468; 6 Barb. 19; 2 Hill. 478; 9 Wend. 287; 21 Id. 339. The confession, though it might not be held equivalent to a judgment, was a higher security, and extinguished the debt. In this case, the creditor accepted the •confession and judgment, and proceeded to collect and satisfy tiie judgment. The acceptance and collection was a sufficient consent on the part of the creditors. — 10 Mich. 16.
    5. The plaintiff could not recover on the confession or judgment under the common counts. If it was in effect a judgment, it should have been specially declared upon as such, and could not be introduced under the common counts. But even if it might have been given in evidence under the common counts, the plaintiffs, by their notice under the declaration, limited themselves to the note.
   Christiancy J.

Upon the facts stated in this case the equities of the plaintiffs are so strong, and the moral obligation of the defendant so clear, that we should feel it our duty to sustain the action, if we could discover any ground consistent with the rules of law upon which it could be done. But after a careful consideration we have been unable to discover any ground upon which the action can be maintained without violating well settled principles of law, and the danger of doing more injury by unsettling the law in other cases than by adhering to it in this.

We see no reason for making a distinction between the effect of a judgment by confession, and one rendered upon a trial. We think, therefore, the note and the indebtedness upon which it was given, were merged in the judgment. The confession upon which the judgment was rendered is not set forth in the case, but if for a specified sum, as we think probable from the statement that it was “ for the whole amount of the note in the form and manner required by law,” the error of. the justice in entering up the judgment might probably have been amended by himself, before it was stayed or any further proceeding taken upon it, as a judgment for a smaller amount. — Comp. L. § 4419-4422; 2 Cow. Tr. (2d Ed.) 1106-1112; or the plaintiffs might have had their remedy by appeal. And it may be (though upon this we give no opinion, as the confession itself is not before us,) that the confession, being in writing in due form and for the correct sum, and constituting a necessary and the most essential part of the record, the judgment, taken in connection with the confession, might have been treated as in legal effect a judgment for the amount stated in the confession, and the stay taken and execution issued accordingly. But if (and so far as) any proceeding was necessary to correct the mistake of the justice and to make it a judgment for the full amount, we think it clear it could be legally done only by some proceeding in the same case either by amendment or an appeal.

Tq allow a new and independent suit for that part of the note by mistake left out of the judgment, would be a dangerous practice. Judgments would loose their essential character and cease to conclude the parties, and there would be no end to litigation. Nor, if the judgment might have been treated as valid for the whole amount, can we see how an action can be maintained for the balance after execution has been issued upon it, as for a less amount, collected and satisfied. Either course, besides being open to the objection of allowing the judgment to be collaterally attacked, would violate the well settled principle of law, that several actions shall not be sustained uj)on a single, individual claim, or cause of action. By issuing the execution and obtaining satisfaction as for a judgment of less amount, the plaintiffs must be held to have elected to treat it as a judgment to the less amount only, and to be as much bound by that election as if they had originally consented to have judgment taken for the smaller amount.

We think the action cannot be maintained.

The judgment of the Circuit Court must be reversed, and a judgment entered in; this Court for the defendant, with his costs in all the Courts.

The other justices concurred.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    Aaron G. Peer v. Michael B. Kean and others.

      Title attaching under executory contract. A. sold a steamer to B. by contract, with a stipulation that B. should, with reasonable dispatch, finish up a certain frame then owned by other parties, or a new one of the same size and new .model, then A.’s wife to own one-half interest in such new vessel. This frame, mentioned in the contract, proved unfit for the engine of the steamer sold, and was not used, and the steamer was run as a tug until she was burned; then a new boat was built and the engine of the former steamer placed in it. The parties considered this new boat as contemplated by said contract, and acted accordingly in her management. Held, that this new steamer is to be regarded as the one embraced in the contract, and that the delay in her construction, and any variation in her fitting up, being •with the consent of both parties, did not abrogate the original agreement; but this is to be considered as such a fulfillment of its terms, as was acceptable to the parties. It was, therefore, further held that the wife of A. acquired, by virtue of said contract, the one-half of the new steamer, subject to the expenses and payments made by B. as stipulated.
    There being an executory contract by the part performance of which the complainant has become entitled to the one-half interest in a vessel, the title could not pass but by conveyance, and on the refusal of defendant to convey, there would in law exist only a claim for damages; but in equity a party obtains under an executory contract touching an ascertained piece of property a* specific equitable interest, and can enforce it as an equitable title, when the remedy at law is not full and adequate.

      Cestui que trust. One who is a cestui que trusty and not a direct party to a contract, all of the provisions of which are not for his benefit, has equitable rights, and the nature of those rights is such as to bring their redress more appropriately into a court of equity than into a court of law.

      Nature of the property. Relation of parties. Specific performance. The property in this case was of a peculiar nature, difficult of valuation or substitution. The relations of the defendant, as expending money for the mutual benefit of himself and complainant, were such as to furnish ground for an accounting in equity. Specific performance would remedy a breach of such a contract far more adequately than damages. Moreover, there was a payment in advance of a specific unvalued chattel, which was not by the contract made liable to forfeiture on non-compliance with its provisions. There is in the complainant an equitable interest which attached to the steamboat, and is susceptible of enforcement by a decree for a specific performance, if the facts justify it.

      Honey paid by surety, when not to be credited to principal. D. was liable as surety for a claim which the property in the defendant’s'hands was liable for. The defendant purchased the claim and took a conveyance of certain property from X). in consideration of releasing him as such surety. The defendant having bought in the claim and being entitled on an accounting between himself and complainant for the amount of such claim; held, that he could not be charged with the property received by him for D.’s discharge as surety.

      Heard May 4th and 5th.

      Decided July 11th.

    Appeal from Wayne Circuit in Chancery.
    The original bill was filed for the specific performance of an agreement made May 20th, 1859, between the complainant and the defendant Michael B. Kean, under which it is alleged said Kean built a steamboat called the “Philo Parsons”; for an account of the earnings of said steamboat from the time she came out, in May, 1861; and for a conveyance of one half of said boat to complainant, in fulfillment of said agreement.
    Other defendants were brought in by supplemental bill, under allegation that, after the filing of the original bill, they became purchasers of said boat, with knowledge of complainant’s claim.
    The cause was heard upon the pleading and proofs, and the bill dismissed.
    The complainant appealed.
    The facts are fully stated in the opinion.

      Wm. P. Wells and A. Russell, for complainant.

      Newberry <& Pond, and 6?. FT N. Lothrop, for defendants.
   Campbell J.

The bill in this ease is filed to obtain a conveyance of the undivided half of a steamer, called the “ Philo Parsons,” complainant offering to pay such sums as may be due defendant, Michael B. Kean, who is called upon to account for the receipts of the vessel, which has been under his management.

Complainant A. G. Peer was in 1859 owner of a steamer called the John Owen, which he sold to M. B. Kean, and agreed to receive back an interest for the benefit of his wife, (upon whose estate he is now administrator), in anew steamer ■which was to be built and completed by Kean under the following agreement.

“ Algonac, St. Clair County, Michigan, [ May 30th, A. d. 1859. f

“In consideration of bill of sale of steamer “John Owen,” made and executed to me, the undersigned, this day, by Capt. Aaron G. Peer, I do hereby agree and obligate myself to said Aaron G. Peer, to do in manner following, to wit: with reasonable dispatch to finish up the frame or hull, now unfinished, in village of Algonac, St. Clair county, Michigan, and now owned by A. & J. Smith, or a new one of same size and new model as may, on or before the fifteenth day of April next hereafter, the joiner work of said boat to be finished up equal to and as near the same style and finish, as may be, of the steamer “Sea Bird,” of Newport, whereof E. B. Ward is owner, to be so finished up, according to draft, hereafter to be furnished and agreed on as to arrangement of cabins, &c. Said Capt. Peer is to have, and may have, the superintendence of the building and finishing up of said boat, as aforesaid, and she is to be so finished up ready to receive her engine, at the cost of and expense of said M. B. Kean, said Kean using and putting therein such parts of the old steamer “John Owen,” as he may think suitable for the same, and the said Michael B. Kean, as ship husband for said boat, does hereby appoint the said Aaron G. Peer, to be master or captain of said boat, after being so ready for sea, and at a salary of three hundred and fifty dollars per season, to be paid by said M. B. Kean, as his share to said Capt. Peer, if he wishes to sail said boat as her master. But said Aaron G. Peer is not obliged to sail said boat as master or otherwise, unless he wishes so to do; said salary as aforesaid is not to be reduced while said Aaron G. Peer is master of said boat, if he wishes so to be, and in all respects does well and properly clisehai-ge his duty as such. And it is also agreed by said Aaron G. Peer, and hereby consented to by said M. B. Kean, that said Peer will continue to run the tug boat “John Owen,” as a tug, during the balance of the present season, a. d. 1859, at a rate of salary equal to half of six hundred dollars for the whole season. Also to he entitled to one-half ¡Dart of the earnings of said boat, and liable for one-half part of all her debts, and all other liabilities of whatever name or nature, which does or may attach to said boat from date hereof, and during the time she runs as a tug boat.

“ And in consideration of the foregoing agreements, if complied with, I hereby agree, when the new boat is finished, to give a bill of sale of one-half part of said boat to Mrs. Euphemia A. Peer. She, the said Euphemia A. Peer, her administrators or assigns, first fully indemnifying and paying me, the said M. B. Kean, for and from all costs, charges and expenses, advances, liens, or incumbrances, of whatever name or nature, which may have been paid by me, or I become liable for on the steamer “ John Owen,” or otherwise settled; also all other additional expenses incurred by me in fitting out said new boat over one-half part of the cost of the same, as aforesaid, all danger and damages from fire or accident to said new boat to be on joint risk from date.

“ In jaresence of Arthur Waukbrdine.

“M. B. Kean.

“A. G. Peer.”

The frame referred to in the contract was found to be too small for the Owen’s engine, and the Owen was used as a tug, without dismantling, until she was disabled and burned. Her engine was subsequently put into an entirely new vessel called the Philo Parsons; Peer being employed more or less in fitting her out, and acting as master until suddenly dismissed in July, 1861, without any assigned cause. The testimony shows that the Parsons was designed to be used in fulfillment of the contract, and that the delay in building was assented to by all parties, and all regarded her as the boat contracted for. She was at first used without an upper cabin, as a tug, but was subsequently, and after Peer’s dismissal, completed for passenger business, and has been used for that purpose. At the time of the sale of the Owens she was subject to a claim díte to one Lee for over $3,000, for boilers furnished. In order to get this debt removed from the Owen and extended, Peer and wife made an arrangement whereby they transferred to Lee their contract with Kean, and Lee agreed to make his money out of the earnings of the proposed new steamer, and Kean assented to the assignment and agreed with Lee not to insist upon the discharge of the other claims which Peer had promised to remove. In July, 1861, Kean purchased this claim of Lee, and continues to hold it. He has also paid some other claims against the Owen. He has always controlled half or all of the Parsons.

The complainant, in right of his wife’s estate, now demands a conveyance upon payment of such balance, if any, as may be due, claiming, however, that the moneys earned,.if properly applied, will pay up in full all indebtedness.

The first question that aiises is whethei’, under the contract, Mrs. Peer obtained any interest in the Philo Parsons.

The contract was not, in terms, confined to the new frame that was at the time on the stocks, and as Kean did not see fit to elect to use that, the agreement remained at large until some other vessel was selected on which to apply it. The Philo Parsons was thus designated by the common conduct of the parties, the engine of the Owen was put into her, and Peer was put in command, thus making a part performance in conformity with the agreement. If the agreement had been to finish a specified vessel, then an agreement to' substitute the Philo Parsons would have been distinct, and must have been sued upon as a neiv bargain; but as Kean was at liberty to use any suitable boat he pleased, not essentially different from the one contracted for, the arrangement by which the Parsons Was designated was in effect a performance of the original contract, and being accepted as such by both parties, the case made is not variant in substance from that alleged in the bill. At law, undoubtedly, the title would not pass without conveyance, and Kean’s refusal to perform fully would only give an action for damages. But in equity a party obtains under an executory contract, touching an ascertained piece of property, a specific, equitable interest, and can enforce it as an equitable title, where the remedy at law is not full and adequate.

In the present case, Mrs. Peer’s interest was from the beginning that of a cestui que trust, who was not a direct party to the contract although beneficially interested in -it, and all of its provisions were not made in her behalf, some being for her husband’s sole benefit. While, possibly, she might have had a legal action, on her own portion of it, (upon which we need not now pass,) she had always equitable rights. And the nature of those rights was such as to bring their redress more appropriately into a Court of Equity than into a Court of Law. The property was of a peculiar nature, difficult of valuation or substitution. The relations of Kean as expending money for their mutual benefit, were such as to furnish ground for an accounting in equity. Specific performance would remedy a breach of such a contract far more adequately than damages. Moreover there Avas a payment in advance of a specific, unvalued chattel, which was not by the contract made liable to forfeiture on non-compliance with its provisions. There was, we think, an equitable interest in Mrs. Peer Avhich attached to the steamboat, and is susceptible of enforcement, if the facts justify it.

The next inquiry relates to the extent and character of this interest. Under the contract certain liens upon the Owen were to be removed, and Mr. Kean Avas to be re-imbursed one-half of his expenses in completing the vessel’s preparation for service. But there is considerable difference betAveen the parties as to what portion of these expenses was entitled to be the subject of re-imbursemeiit. It is claimed on the one hand tfiat the vessel was to be completely finished at Kean’s expense, and that Mrs. Peer was only to pay half of her outfit and furniture. On the other hand, it is insisted that all the expenses, after making her ready for her engine, were to be divided. The contract is perhaps ambiguous, and the conduct of the parties not at all decisive on this question. But we think the bill has set up a case upon the theory claimed by Kean, and does not charge him with any liability to build the vessel at his own charge, beyond the readiness for the engine. This view is, on the whole, the most natural one. And complainant must therefore be held to the case -he has set up. We think, therefore, that Kean is entitled to be re-imbursed upon this basis. He is also entitled to be repaid the amount of the Lee debt. Although the effect of the agreement with Lee was to shift his claim from the Owen to the Parsons, yet he was not bound to convey to Mrs. Peer until he had been re-imbursed. And Kean is clearly entitled to stand in his shoes. As to the smaller liens upon the Owen, although as against Lee, Kean could not require them to be paid, yet he does not appear to have made any such promise in favor of Peer and wife, and none is alleged or established. They are therefore valid claims to the amount he actually paid to discharge them.

The next inquiry is, how far Kean is accountable for money and property received. He is bound to account for one-half of the nett earnings of the Parsons, after deducting from the gross receipts the necessary expenses of the vessel. It is also insisted that he is bound to apply the value of certain premises conveyed to him by one Selah Dustin. It appears that Dustin was responsible as an endorser on the Lee claim, and conveyed this property as a consideration for an agreement by Kean to get him released from the Lee debt. It was not given as a payment on the debt, and was not designed for Peer’s benefit, but only for Dustin’s release as surety. We do not perceive, therefore, what claim Peer or Mrs. Peer could set up to have it applied for their discharge or credit.

The testimony is not such as to enable us to settle the accounts. A reference, therefore, must be ordered to determirib the actual expense of completing and fitting out the Parsons after she was ready to receive her engine. An account must also be taken of the gross receipts, and of the expenditures of the Parsons from the time of her first employment, and also of the moneys paid by Kean for the various claims against the Owen, and the amount due on the Lee claim. The amount found by the Court, on a report of such reference and the evidence thereon, to be due to Kean for such building and furnishing, and for claims adjusted, (including the Lee claim,) after charging him with one-half of the nett earnings of the Parsons, will furnish the basis of redemption.

The decree below must be reversed, with costs, and a decree entered directing a reference on the basis aforesaid, and remanding the cause to the Court below to be proceeded in accordingly.

Christiancy and Cooi/iíy JJ. concurred.

Martin Ch. J. did not sit in this case.


author: Cooley J.

text:
    Farmers’ and Mechanics’ Bank of Michigan v. Oliver Bronson and others.

      Bill to redeem jyi'ior moi'tgage. Mortgagee in possession to account for rents and profits. In 1838, one Bacon, "being iñ possession, conveyed certain land to one Harris, who gave back a mortgage. Harris soon after deeded to one Green, who took possession in 1839, and gave a mortgage to complainants ■who have since foreclosed it and obtained the usual deed. Bacon obtained a decree of sale upon his mortgage in 1840 and assigned it to defendants, and it was still held by them. In 1845 Green quit-claimed the premises to the defendants, who then went into possession, and have remained in possession ever since. No sale had ever taken place under the Bacon decree, and complainants filed their bill to redeem the same, and to have the defendants apply upon it the rents and profits of the premises received since they had been in possession. Meld, that, if these were all the facts in the case, there could be no doubt of the right of complainants to the relief prayed.

      Mortgagee in possession. Mstoppel. But defendants alleged that Green had no title at the time he mortgaged to complainants, and that they occupied the premises under title paramount to that derived. through Harris, the grantor of Green. ' To establish this allegation they introduced evidence tending to show certain defects in the chain of title to Harris, and deeds procured by them to cover these defects. One of these, appearing to have been obtained for this purpose, and with knowledge of a prior unrecorded deed, it was held, that the defendant obtaining the same was not in a position to claim anything under it, as against any one claiming through such prior deed.

      Meld, further, that the defendants having taken possession under Green, they could not repudiate his title afterwards, and that all releases obtained by them to cover defects in the title must be considered as obtained in support of the Green title and not for its destruction.

      Claim of paramount title, how proved. The claim of paramount title could not he supported hy the mere record title from a particular grantor, older than the one to be overruled; but it must be shown that this grantor had a title, beyond the mere fact that he assumed to make a conveyance. This standing by itself is no evidence of that fact. — Smith v. Lawrence, 12 Mich. 431.

      Defective conveyances, effect of recording. The record of a deed, void for defective execution, is inadmissible as evidence. The law makes conveyances properly executed and recorded evidence, but the record of those not properly executed, being entirely unauthorized, cannot prove the existence of originals.

      Defendants claiming a paramount title against the prima facie title assume the burden of proof. The complainants in a bill to redeem a prior mortgage are not bound to show title in their mortgagor, in the first instance; in this case the defendants claimed to hold by a paramount title. The complainants having a prima facie right, the defendants assume the burden of showing a paramount title in themselves to overthrow an apparent right; and their only evidence in this case was the record of a deed, which, if valid, did not support the allegation; and, if invalid, was not admissible in evidence.
    The defendants set up an equitable mortgage in themselves from Green, prior to the mortgage of complainants. The latter was acknowledged, November 30th, 1839, and recorded two days after. On the 24th of the preceding June, Green had entered into a contract with the defendants, which was claimed to be such equitable mortgage, and to have precedence over complainants’ mortgage. It was an executory contract and showed no indebtedness then existing. This agreement was acknowledged by one of the defendants, but not by Green, and was recorded October 29th, 188ft. Held, that the record of this agreement could not operate as constructive notice to any one claiming as subsequent purchaser or incumbrancer from Green. — Hall v. Redson, 10 Mich. 21.

      Degisten'of Deeds, effect of certificate of unauthoi'ized record. In the certified copy of the record of a mortgage, there were no marks opposite the signatures indicating seals; but there was a certificate of the Register of Deeds that the words “not sealed” were entered in the record opposite the names in the handwriting of his predecessor. Held, that this certificate is not legal evidence. The Register was bound to record all instruments properly executed, by spreading a true copy on the record, but he had no authority of law for entering statements of fact to make them evidence against other parties.

      Ci'oss bill, when proper — effect of decree upon. The defendants were made parties by the complainants in their bill of foreclosure, under the general allegation that they claimed some interest as subsequent incumbrancers, or otherwise. The defendants filed a cross-bill, setting up an alleged equitable mortgage, and claiming on several grounds that complainants’ mortgageshouldbe postponed to theirs. On a final hearing, on bill, answer and proofs, the cross-bill was dismissed. Held, that this decree must be taken as final. Whether the bill was a proper cross-bill or not, if it prayed affirmative relief the Court had jurisdiction, and a decision based upon the merits is just as conclusive as in any other case. The bill was not dismissed without prejudice, and it must be assumed that the questions raised by it were disposed of upon the merits.

      A claim of the priority of equities a proper subject of cross-bill. A claim by defendants that they have a prior equitable mortgage to that of complainants, and praying that the latter may be postponed to such prior equitable lion, is a proper subject for a cross-bill, in a foreclosure suit; notwithstanding the principle that prior and paramount rights are not to be contested in such a suit. The complainants having the prima fade lien, it was proper for defendants, having gone into possession under the mortgagor, to present the facts on which they alleged a prior equitable lien, by cross-bill, in order that they might be protected by the decree.

      Tax deed of 1S40, when evidence. Parties to foreclosure suit. A tax deed, acquired in 1840, under statutes which did not make the deed prima fade evidence of regularity, fails to show title, without evidence showing the correctness of the proceedings.
    The fact that the defendants held a tax deed of the mortgaged premises was no reason why they should not he made parties to a foreclosure suit, if in fact they claimed any rights in the premises which were subject to complainants’ mortgage. — Horton v. Ingersoll, 13 Mich. 409.

      Heard May 3d and 4th.

      Decided July 11th.
    Appeal from Wayne Circuit in Chancery.
    The bill in this cause was filed by complainant to redeem certain premises in the village of Niles, Berrien County, from the effect of a certain mortgage, and to charge defendants with certain rents and profits as mortgagees in possession. Decree was rendered for complainant in the Court below, allowing them to redeem, and compelling defendants to ajqriy inpayment of said mortgage the rents received during their occupancy. The facts are fully stated in the opinion.

      Walker & Kent, for complainants.
    1. Harris, who made the mortgage, had the right to redeem it. He conveyed the property subject to the mortgage to Green. Green must have had all of Harris’ right to redeem.
    All of Green’s rights at the time he made the mortgage to complainants were conveyed to them by the sale under their foreclosure. Complainants, therefore, have a lien upon the lot in question, subsequent to the mortgage made by Harris, and derived from the mortgagor. Hence, they have the right to redeem. — Washb. on Real Prop., vol. 1, 553; 9 Mich. 465.
    2. Complainants are entitled to require defendants to apply the rents received by them since they have been in possession, in extinguishment of the mortgage.
    There is no doubt of the general principle that a mortgagee in possession must apply the rents and profits to the reduction of the mortgage debt. And if there be a surplus after the debt is paid he must account for the surplus. — 1 Washb. on Real Prop. pp. 557, 582 and 588.
    It makes no difference that defendants are assignees of the mortgage, and complainants’ grantees of the equity of redemption.
    3. Defendants claim that the rents they have received should be applied in payment of what they call an equitable mortgage from Green to them, made prior to the mortgage to complainants.
    They do not claim that complainants took their mortgage with any knowledge of the prior equity, but that the evidence shows that the mortgage to complainants was without seals, and so of itself merely an equity, and so should be postponed to their prior equity.

      a. The only evidence of an equitable mortgage is an executory agreement for a mortgage, to be made at a future time.

      b. There is no proper evidence that the mortgage to complainants was unsealed. The only evidence is the certificate of the Register of Berrien County, where the mortgage was recorded. But if the mortgage was unsealed, then it was not entitled to record, and the statute does not make a copy of the record, certified to by the Register, evidence.' — Laws of 1840, p. 167.
    But if the certificate is evidence of anything it certainly cannot be evidence that the words, “ not sealed,” found in pencil mark on the record of said mortgage, are in the hand writing of a former Register, now deceased; and if they 'were in his hand writing this is but his unsworn statement, and so not evidence of the fact. If it were proven that the mortgage had no seals when recorded it might still have had when executed more than a month before. They might have fallen off.

      c. The question as to the prior equitable mortgage was settled in the prior suit, and is now res judicata.

    4. The defendant’s claim to be in possession of the lot in controversy by virtae of a title superior to that of Green, and claim that he had no title. The title they claim is also superior to that of Harris, the mortgagor.
    The general principle that a mortgagee in possession cannot set up an adverse title against the mortgagor, on a bill to redeem, is founded on the plainest justice, and settled by authority. — 2 Sumner, 143-401; 3 Mich. 11.
    5. The decree of the Court below gives costs to neither party. We submit that the circumstances of this case make it equitable that defendants should pay the costs.— Chancery Rules, 90; 2 Barb. Ch. Pr. 199; 5 Pick. 271.

      G. V. N. Lothrop, for defendants.
    1. As to the effect of the foreclosure decree and the dismissal of the cross-bill.

      a. The office of a cross-bill is only to procure discovery, or to enable the court to give relief to all the parties on the matters of the original bill. It is always a mode of defense. It can be sustained 'only on matters growing- out of the original bill. — 3 Danl. Ch. Pr. 1742 (Perkin's ed.); Story’s Eq. Pl. §§ 389-393; 8 Cow. 361; 4 Sandf. Ch. 219.
    A bill to foreclose a mortgage can only bring in the mortgagor’s title, or interests subsequently acquired under that title. A defendant cannot set up and litigate a prior title or lien by answer or cross-bill. Should he attempt it by cross-bill, it would be dismissed on that ground. Hence the dismissal of the cross-bill could not operate as a bar to his prior lien, because it was not properly in litigation.
    A judgment or decree is conclusive only where it has been rendered on the merits. It will never be presumed that the merits were passed on where the proceeding was one which does not require or permit a decision on the merits. — 1 Pet. C. C. 193; 6 Hill, 114; 12 Barb. 168.
    A cross-bill, which seeks no discovery and is not good as a defense, must be dismissed. — 3 Sandf. Ch. 278. Such was the nature of the cross-bill in question, and hence must have been dismissed for that reason.
    The Bronsons are therefore not precluded by the dismissal of the cross-bill from setting up their equitable mortgage.

      b. The question then arises whether the equitable mortgage could be set up against the title of complainants. We insist that it can, on the ground, that the mortgage under which complainants get their title was only an equitable mortgage. For we concede that if the bank mortgage was a legal mortgage, entitled to registry, it must prevail against a mere equitable mortgage.
    The evidence shows a certified mortgage, but without seals. This is not a legal mortgage, and. was not entitled to registry. Between equal equities the prior one has precedence.—1 Story Eq. Jur. § 64 d; 2 Lead. Cases in Eq. 67.

    2. There is another principle. The Bronsons had the prior equity. When by the fraud of Green in giving the bank mortgage, they found their rights threatened, they had a right to get in the legal title for the protection of their equity. This they had a right to do, and a court of equity will support the advantage which this gives them. — 1 Story Eq. Jur. § 64 c.; 2 Lead. cases in Eq. 68.
    3. The Bronsons claim possession, as owners, by title paramount to the mortgage title and not as mortgagees under the Harris mortgage; and this title cannot be litigated in equity on a bill to redeem.
    The complainants have an unquestionable right to redeem the Harris mortgage. But in a suit for redemption, they can have rents and profits applied only where the defendants are in possession merely as mortgagees. A person in possession as a mortgagee has no title to the rents except to satisfy his debt. This is so from the very nature of the case. This is the ground, and the only ground, on which this right is founded. And where.this ground is wanting, the right does not exist.
    If the possession is not as mortgagee, but by claim of paramount title, the validity of this title cannot be litigated in this proceeding. Another class of questions .arise. They are questions of adverse legal title. These are wholly of legal cognizance. A court of equity will not entertain them. The complainants’ right in such a case to the rents and profits are such rights as they may have to recover them at law; and the limits of this right are very different from those in a bill against a mortgagee in possession.
    In one word, in mortgage suits adverse legal rights cannot be litigated.—3 Mich. 448; 6 N. Y. 83 ; 9 Id. 502.
    I therefore claim, in conclusion, that the decree in this case is wholly erroneous in directing any accounts of rents and profits. And farther, that even if an account can be taken at all in a case like this, the complainants have a right to only one-half of such rents and profits, because their title is good only to an undivided half of the lot.
   Cooley J.

The bill in this case was filed to redeem certain premises from the lien of a mortgage. These premises consist of a village lot in Niles. It appears that in 1838 Nathaniel Bacon, having previously been in possession and erected a building upon the lot, conveyed it to one Harris who gave back a mortgage for $4,000. Harris soon after gave Cogswell K. Green a deed of the lot, and Green took possession. October 15,1839, Green gave a mortgage of the lot to complainants, who have since foreclosed it and obtained the usual deed. Proceedings were also taken to foreclose in Chancery the mortgage from Harris to Bacon, and decree was obtained in June, 1840, which was soon after assigned to defendants Bronson, and is still held by them. May 1, 1845, Green quit-claimed the lot to the Bronsons, who then went into possession and have continued to occupy ever since. No sale has ever taken place under the decree in the Bacon foreclosure suit, and complainants now seek to redeem from it and to have the Bronsons required to apply upon it the rents and profits of the premises since they have been in possession.

If these were all the facts in the case there could be no doubt of the right of complainants to the relief prayed. But several defenses are set up, based upon other facts which we shall proceed to notice.

I. It is alleged that Green had no title at the time he mortgaged to complainants, and that the Bronsons are now occupying and claiming the land by title paramount to that derived through Harris. To show that title defective, the records of the county were put in evidence showing the following deeds upon record covering the premises in controversy:

From William Justice and wife to Hiram Chilson and Lois Olds a deed of the whole lot, dated December 20th, 1831.

From Hiram Chilson and wife to Erasmus Winslow, a deed of an undivided half, dated February 18th, 1833.

From Erasmus Winslow, Lois Olds and Daniel Olds, her husband, to Luther Rice, a deed of the whole, dated December 2Vth, 1833. This deed, it is alleged failed to convey an undivided one-half of the lot, for the reason that the acknowledgement by Lois Olds was defective within the decision of this Court in Sibley v. Johnson, 1 Mich. 380, and therefore void.

Frederick Bronson, in July, 1845, procured a quit-claim deed from Mrs. Olds to himself, and now claims an undivided h,glf of the lot under it.

Luther Rice gave a deed of the lot to Nathaniel Bacon and William H. Bacon, November 28, 1834. William H. Bacon deeded to Nathaniel Bacon, March 1, 1836, but the deed was not recorded until April 23, 1851, and on September 12, 1845, Frederick Bronson procured from William H. Bacon a quitclaim deed, under which he now claims to hold whatever title was vested in William H. Bacon by the deed from Rice.

We are of opinion that neither of these deeds is of any avail to defendants as against the right of complainants to redeem.

1. It clearly appears from the evidence that the deed from William H. Bacon was obtained by Frederick Bronson for the purpose of curing a defect in the title of record, and with full knowledge of the prior deed given by the^grantor therein to Nathaniel Bacon. He is not in position, therefore, to claim anything under his quit-claim as against any one claiming through such prior deed.

2. It is fully admitted by the answer that the Bronsons went into possession of the premises, under Green, as mortgagees, and for the purpose of applying the rents and jirofits of the premises upon a debt due from him to themselves, hereafter more particularly specified. Having thus taken possession under Green, they were not at liberty to repudiate his title afterwards; and all releases obtained by them to cover defects in the title must be held obtained in support of the Green title, and not for its destruction.

8. But if this were not so, and the case were to turn upon the apparent title as shown by the deeds, the claim of defendants would be equally defective. They claim to have derived a paramount title to 'the land through William H. Bacon and Lois Olds from William Justice; but there is nothing to show that William Justice ever owned the land beyond the fact that he assumed to convey it. This standing by itself is no evidence whatever of that fact. — Smith v. Lawrence, 12 Mich. 431.

4. Defendants, however, insist that complainants cannot dispute the title of William Justice and Lois Olds, inasmuch as they themselves claim to derive their title from them. But the only evidence of this fact is the record which the defendants introduce, and that record either shows nothing, or it shows too much for defendants’ purpose. The deed from Lois Olds was either valid as to her half or entirely void. If valid, Green acquired through it all the title that William Justice ever had to that half, subject to the Harris mortgage. If void, the record was a nullity, and not admissible in evidence. The law makes conveyances properly executed and recorded, evidence; but the record of those not properly executed, being entirely unauthorized, cannot prove the existence of originals.

If this case were one which required complainants to show title in their mortgagor we might be called upon to consider the validity of the deed from Mrs. Olds to Rice; but it is not. There is nothing in the case to warrant the application of any principle of estoppel to complainants. Prima facie, their right to the relief prayed is both legal and just; and they have a right to say of the record of Mrs. Olds’ deed, that it is either evidence of a valid conveyance, or it is no evidence whatever against them. Defendants assume the burden of showing a paramount title in themselves to overthrow an apparent right; and the only evidence offered for the purpose according to their own theory of the Olds’ deed, is entirely incompetent and .inadmissible.

II. But there is another branch of the case which requires examination. The defendants not only claim rights under the Harris mortgage, but they also set up an equitable mortgage in themselves from Green, prior to the mortgage to complainants. The latter was acknowledged November 30, 1839, and was recorded two days later. On the 24th of the preceding June, Green had entered into a contract with the Bronsons which is claimed to be an equitable mortgage, and which after providing for the sale of certain lands bought under a contract between them, of the date of November 5, 1835, and that the Bronsons should execute contracts of sale on receiving one-fourth the purchase money, contained a further agreement on the part of the Bronsons to pay and deliver to Green all the purchase moneys and securities, after deducting $12,310.60 and interest, and any costs and expenses they might have incurred. And Green, on his part, agreed that he would, immediately after the first day of October, execute to the Bronsons a mortgage on the premises in controversy, for said sum of $12,310.60 and interest; it being understood that the amounts received from the sales of the lands mentioned in the preceding contract should be applied to the payment thereof, as fast as received by the Bronsons. This agreement was acknowledged by one of the Bronsons, but not by Green, and was put upon record October 29, 1839.

The record of this agreement could not operate as constructive notice to any one claiming as subsequent purchaser or incumbrancer from Green. — Hall v. Redson, 10 Mich. 21. But it was prior in point of time to the mortgage from Green to complainants, and the Bronsons claim that it takes precedence of that, for the reason that that also was in fact only an equitable mortgage, as the mortgagors had failed to attach seals to their signatures. The original mortgage was not put into the case, and the evidence that the seals are wanting consists in the facts that no seals appear opposite the names in the copy given from the record, and that the Register of Deeds certifies that the words “not sealed” are entered in the record opposite the names, in the hand writing of Ms predecessor. This certificate is not legal evidence. The Register was bound to record all instruments properly executed by spreading a true copy upon the record, but he had no authority of law for entering statements of fact to make them evidence against other parties. The original entry being unauthorized would not be evidence, and the copy would be equally incompetent. Whether the want of any marks, indicating seals, opposite the names in the record, is proof that none were attached to the original, and would preclude the record or a copy thereof, being evidence, is another and a different question.

But the complainants claim that the agreement between Green and the Bronsons does not constitute an equitable mortgage, and that if it does, the question of priority between it and their mortgage is res jicdicata. It appears from the record that the Bronsons were made parties to the bill by complainants for the foreclosure of their mortgage, under the general allegation that they claimed some interest as subsequent incumbrancers or otherwise; that the Bronsons filed a cross-bill in the case, setting up said agreement as an equitable mortgage, and claiming on several grounds, that complainants’ mortgage should be postponed to their claims; that answer was filed in the case, proofs taken to sustain and rebut the allegations contained in the cross-bill, and on the final hearing a decree dismissing it was entered.

Defendants claim that this decree is not a bar to their defense in this suit, for the reason that the cross-bill was not a proper proceeding in the case in which it was filed, and wag properly dismissed without regard to the merits. We do not think this position well taken, or that it is of any importance now whether the matters set forth in that bill were proper to be used by way of defense to that suit or not. A bill filed as a cross-bill in a case not proper for it, is not to be dismissed for that reason, if it prays affirmative relief; and a decision upon the merits, based upon it, is just as conclusive as in any other case. A bill assuming to be a cross-bill, but bringing new matters into a case, not connected with the subject matter of the original suit, is to be regarded as an original bill, — Andrews v. Kibbee, 12 Mich. 94; and calling it a cross-bill is simply a misnomer. — Pollock v. National Bank, 7 N. Y. 274. Whatever view, therefore, we may take of the bill in question, the Court had jurisdiction to pass upon the questions raised by it, and as it was not dismissed without prejudice we must presume that those questions were disposed of upon the merits. The decree in that case, therefore, settled conclusively the priority of complainants’ mortgage over the equitable claim of the Bronsons.

We are not to be understood, however, in what we have said as intimating an opinion that the bill was not a proper cross-bill in that case. The complainants had made the Bronsons parties to their bill as having, or claiming an interest in the premises subsequent to their own mortgage. In fact the Bronsons had gone into possession under Green, but they claimed a right to appropriate the rents and profits to what they insist is an equitable mortgage of their own, which, if valid as such, was prior in time to that of complainants. The questions involved between the parties were, first, whether complainants’ mortgage was a legal one and properly executed and recorded; for if it was they wer & prima facie entitled to precedence ; and second, if not a legal mortgage, then, whether the agreement between Green and the Bronsons amounted to an equitable mortgage, which would entitle them to precedence. Questions both of law and of fact were involved, and it appears to us quite clear that the case was a proper one for a cross-bill. Conceding that prior and paramount rights are not to be contested in a foreclosure suit, yet when the very question is, which is prior and paramount, it is-as proper to dispose of it in the first suit as in 'any subsequent one. The possession of the Bronsons being taken under Green, was prima facie subject to complainants’ mortgage, and if they claimed an equitable lien which should give them priority, it was proper that they should present the facts concerning it that the Court might protect it by its decree. The Bronsons so thought at that time, and when the Court dismissed their bill and'granted decree for complainants, it in effect decided that their rights were not entitled to priority over those of complainants, but were in fact subject to them, as complainants had alleged.

But the Bronsons also claim that they have a tax title upon the premises to which they may refer their possession, and which is sufficient to protect them against the relief prayed. This title was acquired in 1840, under statutes which did not make the deed prima facie evidence of regularity. No evidence was given of the correctness of the proceedings, and the deed therefore fails to show title. The fact that the Bronsons held a tax deed of the premises was no reason why they should not be made parties to the foreclosure suit, if in fact they claimed any rights in the premises which were subject to complainants’ mortgage. — Horton v. Ingersoll, 13 Mich. 409. That they went into possession under Green, instead of under their tax title, is admitted by their answer, and the tax title was therefore no answer to the bill in the former case, or to an accounting in this.

The decree of the Court below, permitting redemption and requiring defendants to account forthe rents and profits of the premises, while occupied by them, to be applied on the Harris mortgage, must be affirmed, with costs of this Court.

The other Justices concurred.


author: Ohristiancy J.

text:
    William Phelps and another v. Reuben Town and another.

      Definition, ’''•Currency''' Where a certificate of deposit, "by its terms, was made payable “in currency,” it was held, prima facie, tornean money current by law, or paper equivalent in value circulating in the business community at par.
    Witness, when an expert. Where a witness — a banker in Detroit — was asked what kind of money a certificate of deposit (issued in Chicago) was payable in, without referring to any local custom or usage, or introducing evidence as to his knowledge of the laws of Illinois relating to the question; held, that the question was one purely of law.

      Justice's Court, effect of money paid in. Where in a suit upon a note before a Justice, defendant paid money thereon in open court; held, that the effect upon the rights of the parties was the same as when paid into a court of record under the practice there prevailing. Held further, that no rule or order is necessary when it is paid at the time of, or prior to the plea. If after plea, a motion should probably be made for leave.

      Heard April 13th and 14th.

      Decided July 11th.

    Error to Wayne Circuit.
    The plaintiffs in error endorsed two notes made by one T. S. Coats, which were given to the defendants in error.
    Coats sent to the defendants in error a letter enclosing as a payment a certificate of deposit given by the Western Marine and Fire Insurance Co., of Chicago, reciting that Coats “has deposited with this company five hundred dollars in currency, payable to the order of himself on return of this certificate.” It was duly endorsed by Coats to defendants in error. This letter and certificate were received by them on the 15th November, I860; on the same day they acknowledged its receipt, and wrote to him that they would send the certificate to Chicago, and allow him what it was worth; they sent it to their correspondent at Chicago, with directions to collect it and forward exchange oil New York. On the 17th, as exchange could not be obtained, the eorresjwndent sent to defendants in error $500 of the bills of Illinois and Wisconsin banks. When the bills were received at Detroit, they were at a discount of from seven to ten per cent. On the 30th November the defendants in error informed Coats, by letter, of western money being returned for the certificate, and that it was from eight to ten per cent, discount, and asking what they should do with it. On the 12th of December Coats replied that he could not stand any six to seven per cent, discount, as he had deposited current funds; that he still owed them, and asked them to wait for it, and he would pay ten per cent.
    The defendants in error kept the bills for several months, and not hearing from Coats sold them for $275. A portion of the avails they applied to pay the balance due on one note, and endorsed the balance on the note upon which this suit * was brought.
    The suit was originally commenced in a justice’s court The plaintiff in error pleaded the general issue and paid into court $43.60 — the balance due on the note, if the transfer of the certificate was a payment of $500 — and also paid the costs of suit to that time. The case was tried, and the justice rendered a judgment in favor of plaintiffs in error. The cause was then appealed to the Circuit Court; the justice setting forth in his return that “ defendant plead the general issue, and payment into Court for $43.60, and costs to time of payment;” but not returning the money. On the trial, by jury, the defendants in error asked David Preston, a banker in the City of Detroit, “ ~What hind of money is that certificate payable in?” Objection was made, overruled, andan exception taken. The jury brought in a special verdict. The court thereupon ordered judgment to be rendered for the entire balance of the note, deducting only the money endorsed by defendants in error as proceeds of the bills sold, without deducting the money paid into' the Justice’s Court.

      D. C. Holbrook, for plaintiff in error.
    1. The court erred in allowing the witness Preston, to answer the question, to wit:

      “ What kind of money is that certificate payable in ?”
    The plaintiffs in error contend that this certificate was payable in the legal current coin of the United States, or its equivalent, and that the word currency has a settled meaning, and not open to explanation. — 24 N. Y. 548 ; 20 Ill. 145, 255 ; 21 Id. 101; 27 Id. 525; 28 Id. 463; 32 Id. 74.
    The admission of parol testimony that this certificate was payable in Illinois and Wisconsin currency, or anything that the banks received and paid out as money, other than gold and silver, was erroneous.
    2. Judgment was rendex-ed for the whole balance, not allowing the moxxey paid into court. This was clearly error.
    The money was paid in without' objection beixxg made by defendants in error. Whether according to axxy established rule or proceeding is a matter of no consequence; no objection being made.
    When paid in, it absolutely belonged to defendants in error. — Caines, Pr. 174. The plaintiffs ixi error could never take it out, even though it be paid in by mistake. — 2 B. and P. 392; 2 T. R. 645 ; Barnes, 279-281-284. It must be considered as so much stricken oxxt of the declaration. — 2 Cow. 336 ; 1 Wend. 191; 1 Burrill's Pr. 408.
    A plaintiff can only recover the balance over amount paid in; and it is the same as if paid before action brought.—3 T. R. 657 ; Tidd's Pr. 569-70 ; Caines' Pr. 174.

      Maynard, Meddaugh and Swift, for defendants in error.

    On the trial of this cause, in the Circuit Court, it was claimed by the defendants, that the certificate of deposit set forth in the special verdict was, by construction of law, payable only ixx gold and silver, axxd that parol evidence was inadmissible, to show that it was payable in anything else.
    The court below, however, permitted the plaiixtiffs to introduce evidence of what was understood among the business men and bankers of Chicago, by the word “ currency”; and the witness, Preston, who was a banker, and acquainted with the usages and customs of such business men axxd bankers, in the course of his examinatioxx, was asked the question set forth in the bill of exceptions. He was not asked to give Ms opinion as a matter of law, but simply to state in what kind of money, according to such usages and customs, said certificate would be payable.
    1. The certificate stated that Coats had deposited five hundred dollars in “ currency,” to be paid on the return of the certificate. Upon its face it showed that something besides gold and silver was intended; otherwise the word “ currency” was useless. — 9 Ind. 135. By ordinary and fair construction of the word “ currency,” the certificate in question was payable in funds current, when it was made.
    If this be so, then, before it could be determined whether the certificate was payable in the funds which it called for, it was necessary to show what those funds were, and the testimony objected to was admissible.
    2. But admitting that, according to the ordinary construction of such an instrument, it was payable in gold and silver, we claim that we have a right to show that the word “ currency” had, by the usage and custom of business men and bankers in the place where the certificate was made, acquired a different meaning. — 2 Phil. Ev. with Cowen & Hill's notes, 726 ; 1 Greenl. Ev. § 292; 23 Wend. 71.

    The decisions are conflicting as regards the meaning of the word “ currency;” but it will be found that they have been influenced by the state of the money market at the time when made. The courts have been disposed to do justice between the parties, rather than lay down an inflexible rule of universal application.
    In the following cases it was held that by the word “ currency” is meant current bank notes: — 5 Ark. 266; 6 Id. 255; 5 Littell, 335 ; 7 Mis. 595; 20 Ill. 144; 21 Id. 101; 27 Id. 525; 28 Id. 463, 501; 30 Id. 399.
    In all these cases the question seems to have been, whether a depositor of “ currency” was bound to take the same kind of paper which he had deposited, when it had ceased to be current, and had depreciated so as to be worth no more than 50 or 60 cents on the dollar. In none of the cases was it decided that a tender of funds, current at the time of the demand, would not have been good. On the contrary, it is, if not expressly decided, strongly implied, that such a tender would have been good. And in none of the cases does it appear that the plaintiff was not willing to take such funds; and the only question was, whether he was bound to take depreciated paper.
    3. But, admitting that the certificate Was payable in gold and silver, the plaintiffs acted upon the supposition that it was payable in Western money, and collected it in that land of currency, and so informed Coats, who, instead of objecting to their view, or to what they had done, found no fault with what had been done, and directed the plaintiffs to hold it for him. Under these circumstances, we claim that he is estopped from setting up this claim now.
    4. The only remaining question is, whether the sum paid into the Justice’s Court,, ought to have been credited to defendants in the Circuit Court.
    According to the practice in courts of record, in such cases, a rule is entered, giving the defendants leave to pay money into court, and providing that unless the jfiaintiff will receive the same, with costs to be taxed, in full discharge of his action, said sum shall be struck out of his declaration, and that the same shall be paid out of court to the plaintiff or his attorney. — 1 Tidd's Prac. 621; 1 Burrill's Prac. 407; 2 Id. 447; Green's Prac. 313.
    And unless the money be paid in under such rule, the plaintiff’s right to recover will not be affected, nor can he compel the payment of the money to himself; and the defendant may at any time withdraw it. — 1 Wend. 103; 7 Iredell 201; 1 Swan, 92 ; 1 Allen, 145.
    There being no authority given by statute to Justices of the Peace to receive money paid into court, or to enter such rules, or to compel the plaintiff to take money, or to restrain the defendant from withdrawing it, how can it be claimed that such payment affects the plaintiff’s rights to recover ? Such action of the Justice would be extrajudicial, and would not bind either party. If, at any time, the defendant demands the money, can the Justice refuse to pay it to him ? If not, how can the plaintiff’s right be affected by such payment ? —9 Jones, 196.
    5. Again, to have entitled the defendants to avail themselves in the Circuit Court of the payment before the Justice, it should have been certified in his return to have been made before him. — 1 E. D. Smith, 398.
   Ohristiancy J.

The certificate of deposit was by its terms payable “in currency.” Prima facie, at least, this must be held to mean money current by law, or paper equivalent in value circulating in the business community at par. Such, we think, is the general signification, the fair import and ordinary legal effect of the term.

"Whether it would have been competent to prove that the term had acquired, by local usage or custom, a different signification at Chicago, which, by the laws of Illinois, would be recognized for the purpose of giving a different interpretation to the contract, we are not, in the present aspect of this case, called upon to decide, as it does not appear that any such evidence was given or offered, and we prefer to reserve our opinion upon the point until the question shall be presented in such a manner as to call for a decision.-See Ehle v. Chittenango Bank, 24 N. Y. 548; Swift v. Whitney et al. 20 Ill. 145; Moore v. Morris, Id. 255; Trowbridge v. Seaman, 21 Id. 101; Marine Bank v. Chandler, 27 Id. 525; Osgood v. McConnell, 32 Id. 74; Marine Bank v. Rushmore, 28 Id. 463; Fire and Marine Ins. Co. v. Tincher, 30 Id. 399.

The question put to the witness Preston did not call for evidence of any such local usage or custom, or of any local signification thereby acquired. He was asked, “ what kind of money the certificate was payable in,” without referring to any local custom or usage;. and, as such, the question was one purely of law, and it does not appear that he was an expert or in any manner competent to testify as to the laws of Illinois. So far as the record discloses anything upon this point, it furnishes an inference that he was not comjjetent for this purpose; he is stated to be a banker in the city of Detroit. To make such a question admissible, it should appear that he was' conversant with the laws of Illinois in relation to this question. His answer did not tend to correct the error of the question, as it does not allude to any local usage or custom, or any local or peculiar signification dependent thereon. This question being objected to, the Court erred in admitting it, and allowing the answer to go to the jury; for though it does not appear whether any, or what other evidence was given in the case upon this point, still, as we cannot say how far the jury were influenced by this improper evidence, this error vitiates the special verdict; and a new trial must be granted on this ground. For these reasons we do not deem it proper to pass upon the questions depending upon the facts found by the special verdict in reference to this point, as a new trial may present quite a different state of facts.

But there is one point not dependent upon the special verdict which will naturally arise upon a new trial, and which, for that reason, we deem it proper to notice here.

This cause was appealed from a Justice’s Court to the Circuit ; and it appears from the return of the Justice that the defendants had “ pleaded the general issue, and payment into court of $43 -jVo- balance due plaintiffs, and two -ffo dollars costs of suit in the case, to the time of payment.”

It is not to be supposed that the Justice would have noticed or allowed such a plea unless the money was in fact paid into court. And as it is apparent from the judgment rendered by him, and the proceedings in the Circuit that he received the plea and found the sum so paid into court to be all that was due the plaintiffs, we think his return equivalent in effect to a direct and positive return of such payment. This fact is also found by the special verdict, but the Circuit Court, in rendering judgment upon the verdict, did not allow to the defendants the amount so paid; on the ground, as we suppose from the argument, that the money was not returned by the Justice, and not paid into the Circuit Court according to the practice of that Court in actions originally brought there.

This raises the question, whether it is competent for a defendant in a Justice’s Court to avail himself of a payment into court in the like classes of actions in which it would be competent for him to do so in the Circuit Court; and if so, what is the effect of such payment ?

The statute conferring jurisdiction upon Justice’s Courts provides (Comp. L. § 3656), that “ each of said courts is hereby vested with all such powers for the purpose of exercising jurisdiction conferred by this chapter, as are usual in courts cf record, except the power of setting aside a verdict and arresting judgment thereon.” And having given to such courts exclusive jurisdiction to try all civil actions (with certain specified exceptions) wherein the debt or damages do not ■exceed the sum of one hundred dollars, and concurrent jurisdiction in all actions upon contract, express or implied, wherein the debt or damages do not exceed three hundred dollars, (except in specified cases), we think it is but reasonable to infer the legislative intent to give to defendants in such actions the benefit of the same defences to which they would be entitled in similar actions in courts of record. The organization of the court does not require or permit the same formal mode of procedure, upon payment of money into court, as that practiced in courts of record. The Justice has no clerk and no common rule book. His court has no stated terms or vacations. In courts of record, as the money is not often paid in open court, but in vacation at, or prior to, the filing of a plea, .and is never paid to the Judge but to the proper subordinate officer of the court (in this country to the clerk), the entry of rules and -orders is highly proper to preserve the evidence of the faet, as well as to hold such officer to his responsibility. But n.® consideration of this kind or of convenience requires such a procedure in a Justice’s Court. The money may be paid directly to the Justice in open court, who receives it in his official capacity for the plaintiff, to whom it belongs, and to whom he is bound to pay it upon request. No rule or order is requisite when paid at the time of, or prior to the plea; if after plea, a motion should probably be made for leave.

When paid to the Justice in open court, the effect upon the rights of the parties is the same as when paid in a court of record under the practice there prevailing. It belongs to the plaintiff absolutely. The defendant cannot reclaim it, though paid by mistake. So much of the plaintiff’s claim is considered as stricken out of the declaration, and he can only recover the balance, if able to prove any; if not, he will be liable to. all costs in the further prosecution of the suit.

The money in this case, after its payment to the Justice, being the money of the plaintiffs, we can see no reason for holding defendants thereafter to any responsibility for its disposition or payment. We think they have no further concern with, or control over it. The plaintiffs were entitled to demand it of the Justice at any time, and their refusal or neglect to do so, or their failure to obtain it, cannot affect the further proceedings in the suit, or the rights of the parties one way or the" other.

The judgment must be reversed, with costs, and a new trial granted.

The other Justices concurred.


text:
    Sebra Rathbun v. Frederick Ranney.

      Writ of return in replevin, what sheriff to issue to. A writ of return upon a judgment in replevin cannot Re issued to tbe sheriff of any county, except that in which the judgment was rendered.

      Sheriff — damages in replevin when property taken on void, writ, Where a person who is not shown to have derived title or possession from either party to the replevin suit, sues a sheriff* who took property from him under such a void writ, his damages cannot be affected by the replevin proceedings, to which he is not shown to have been privy.

      Heard May 4th.

      Decided July 11th.

    Error to Kent Circuit.
    Bridget Bennet brought an action of replevin in the Ottawa Circuit against Levi Shackelton and Alfred Cain, for a dun horse and other property. In October, 1837, the action was tried, resulted in favor of defendants, and judgment for the return of the property was given.
    On the 23d of October, 1857, an execution of return was issued to the sheriff of Kent county, and on the next day the defendant Rathbun, as a deputy of the sheriff of Kent county, executed the writ by taking said dun horse, found at Grand Rapids, in the possession of Ranney, and delivering it to Shackelton. ’
    In March, 1858, Ranney sued Rathbun and Shackelton in trespass, in the Kent Circuit. Shackelton was never served, nor did he appear. Rathbun pleaded and justified under said execution. At the trial, Ranney simply proved his possession of the horse at the time Rathbun took it under the execution of return, the taking by Rathbun, and the value of the horse.
    Rathbun fully proved his justification.
    The Court held that the execution of return was void, as such a writ could lawfully run only to, and be executed by the sheriff of Ottawa county. Judgment was therefore given for Ranney for the full value of the horse.

      G. V. N. Lothrop, for plaintiff in error.
    The Court erred in ruling that the execution of return could run only to the sheriff of Ottawa county.
    The statute is explicit. All executions, whether against person or property, may run to the sheriff of any county in the State. — 2 Comp. L. § 4448 ; L. 1847, 172.
    This writ (retorno habendo) is a common law writ, and a true execution. — 2 Tidd Pr. 993, 1038; 3 Burr. Pr. 125, 126.

      The law would he very defective which restricted the right to have any execution to the county, where judgment was recovered. The very object of an execution is to secure the fruit of judgment. Of what use to issue it to a county where the command cannot be executed ? In this case the Judge held that we could have had this writ to the sheriff of Ottawa. But the facts show that this would have been useless.
    2. Ranney proved only possession.' Sometimes possession of personal property raises presumption of title. But it did not in this case. The facts showed a prior possession in Shackelton. Bridget Bennet then got possession by replevin, and so far as the facts imported anything, Ranney held under her. This destroyed all presumption of title in Ranney from his possession.
    It was therefore incumbent on Ranney to show some good title, either general or special. Otherwise he could not recover any damages.
    A mere depositary may indeed recover in trespass against a wrong-doer on the simple ground of possession.
    But if Ranney held only through Bridget Bennet, — and this is all his possession imports in this case, — -then Rathbun and Shackelton were not wrong-doers as to him. Their title was better than his. They had a better right to possession.

      Moore and Griffin, for defendant in error.
    1. The Circuit Judge was correct in deciding that the writ of return could only be directed to, and be served by the sheriff of Ottawa county. >.
    The eighth section of chapter 113, Compiled Laws, declares: “That the Circuit Courts, within and for their respective counties, shall have and exercise original and exclusive jurisdiction of all civil actions,” &c.
    Though their jurisdiction is general over the subject matter of suits, yet, in respect to persons and property, in cannot be exercised beyond tbe limits of tbe county. — 4 Mich. 180; 10 Wend. 592.
    2. Writs issuing from the Circuit Court of one county, for the purpose of enforcing a judgment or collecting the same, cannot be directed to the sheriff of another county, except in certain specified cases, authorized by Law. — 4 Litt. (Ky.) 375; 2 Comp. L. § 4442; 2 Pike, Ark. 494.
    When the jurisdiction of certain counties is made common, it is also expressly provided that civil process from each of said counties may run into the territory over which they exercise such common jurisdiction. — 1 Comp. Laws, §§ 304-314.
    From the cases above cited, we think it is clear that no original writ can run out of the county, unless expressly authorized by statute. The statute has provided full protection, by bond, for parties in such cases as the one at bar. — 2 Comp. L. § 5014.
    Plaintiff in error should seek his remedy on the bond’.
    3. The Circuit Judge was correct in rendering judgment for the defendant in error, for the value of the property.
    A bare possession is sufficient to enable the plaintiff to recover in trespass against a wrong-doer, who takes the property out of his possession without authority. — 1 Chitty Pl. 11th Amer. ed. 170, and cases cited in note. It is not necessary to prove ownership. — 35 Barb. 298; 6 Bosw. 154. Possession is evidence of ownership. — 20 Ill. 37, and entitles the plaintiff to recover full value of the property. — 6 Bosw. 176; 2 Head (Tenn.) 398.
    The question of title, as between Bennett and Shackelton, having been determined in the Ottawa Circuit Court in favor of Shackelton, cannot operate in the case at bar, to defeat a recovery on the part of Ranney.
    We think, therefore, the Ottawa Circuit Court had no jurisdiction to issue the writ to the sheriff of Kent, for the purposes contemplated, and that the writ is a nullity.
   Campbell J.

Ranney sued Rathbun in trespass for taking away a horse from his possession in Kent county. Rathbun justified under an execution issued in a replevin suit in Ottawa county, whereby he was directed to make return to Levi Shackleton and Alfred A. Cain, of a horse and other property replevied from them by one Bridget Bennett. The Circuit Court ruled that the execution was unlawful, and gave judgment for the value of the horse and interest by way of damages. Exception is taken to the rulings.

The only statutes which in express terms allow executions, in ordinary cases, to run into different counties, are sections 4442 and 4444 of the Compiled Laws. By the former it is declared, that, whenever judgment is rendered in any Court of-record, execution to collect the same may be issued to the sheriffs or other proper officer of any county .of this state.” Section 4444 provides that, “ such execution may be either 1st, against the goods and chattels, lands and tenements of the party against whom such judgment was recovered ; of, 2nd, against the body of such party, in the cases authorized by law.”

This statute does not apply to a writ of return, and embraces only the ordinary executions upon money judgments, which are to be “ collected” by execution. It is claimed, however, that it extends by analogy to all kinds of executions upon all judgments. The statute of replevin gives no such directions, ' and we are remitted to the old law, to ascertain whether the various writs come under any necessary connection.

Under the old practice in replevin in England, where a writ de retorno habendo was issued for a defendant, it was a good return that the chattels had been eloigned, or removed from the county; and the defendant then was remitted to his capias in withernam, or his remedy against the sureties. And a plaintiff in replevin was also compelled to resort to his capias in withernam, to seize other goods of the defendant, if the property was removed from the county before the writ was served. A removal from the county in either case lost the party his claim to seize the property to which he was entitled. — 3 Bl. Com. 149; Tidd's Pr. 1038; Bacon's Ab. “Replevin” E. 5; Fitzh. N. B. 74 F.

Our statute does not provide, in any case, for a capias in withernam properly so called; but when the writ of replevin cannot be served upon the property, it allows the plaintiff to declare and proceed to judgment; and on such judgment, besides damages and costs, he is entitled to have it adjudged that the property be replevied and delivered to him without delay, and in default thereof that he recover the value as assessed, § 5034. We have here, then, a judgment containing the same requirements as to the specific property, as those provided where a defendant becomes entitled to return. The The statute, by section 5035, provides a special form of execution in such a case, in favor of the plaintiff, combining a command to collect the damages and costs, with a precept to replevy the goods. But in case the property is not found within the county, instead of allowing a further replevin in another county, it directs a levy of the value of the property out of the goods and chattels, lands and tenements of the defendant. This is in substance applying the principle of the capias in withernam, and recognizing the locality of the proceeding against the property as confined to the county. The analogies, then, are not such as to indicate the propriety of extending the operation of the statute on executions beyond its fair intent as expressed by its language. The Circuit Court was right, therefore, in holding the writ invalid.

There is nothing in the finding which will enable us to say that the rule of damages was incorrect. It appears, indeed, that Shackleton and Cain had obtained a judgment of return against Bridget Bennett for the horse in controversy, but such a judgment does not necessarily show title in them as against any one else, or even general ownership against any one. Ranney’s title may, for anything that appears, be good against all of them. He is not in any way connected with the other parties by the finding, and there is nothing to distinguish them, so far as he is concerned, from any other ordinary trespassers.

The judgment should be affirmed, with costs.

The other justices concurred.


author: Martin Ch. J. Cooley J.

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    James B. Townsend v. The People.

      Recognizance, default on. At tlie June term, 1864, of the Ontonagon Circuit, one Townsend plead not guilty to an indictment. On giving a new recognizance in open Court, the case was continued to the next September term.
    During the vacation following he entered into another recognizance, with the same condition, before a Circuit Court Commissioner.
    He appeared for trial at the said September term, when, on his own motion, the cause was continued to the following June term, without any order for the renewal of the recognizance. Upon the day following, he was called in court and defaulted on the recognizance entered into before the commissioner, and judgment was rendered against him and his sureties. Held, that the record, showing no reason for the taking of such second recognizance, the first was in full force and was not superseded by the latter. This second recognizance was therefore void, and the judgment rendered thereon must be set aside. Held, further, that the Court having ordered the case continued to the next term, without any requirement that the recognizance should be renewed, there could not afterwards be a default for failure to attend further at that term.

      Circuit Court Commissioner. Jurisdiction in talcing recognizance. When a Circuit Court Commissioner acts upon cause, such as the surrender of the party by his sureties, or other cause such fact should be made to appear, in order to show that he had jurisdiction. In the absence of such showing the taking of a recognizance is without authority, and the act void.

      Heard May 2d and 3d.

      Decided July 11th.

    Error to Ontonagon Circuit.
    The nature of the case, and all the facts necessary to an understanding of the questions of law involved, fully appear in the opinion of the Court.

      A. W. Buel, for plaintiff in error.
    The second recognizance was unauthorized and invalid. The acknowledging officer must have authority to require and take the recognizance. His powers are statutory. He did not derive authority in the case from Sec. 6002 Comp. L., for that is held to “ relate exclusively to cases before commitment and after examination.” — 3 Mich. 46.
    Nor did he derive it from Sec. 5909 Comp. L., for that relates exclusively to cases of commitment, (either before or after indictment). — -6 Mich. 387 ; 3 Id. 48-9.
    The present case is wholly beyond the provisions of each of those sections, and there is no other statute authorizing him to take bail in criminal cases. The officer was an inferior magistrate, his powers were statutory and limited, and in such case jurisdiction and the cause of taking the recognizance are not to be conjectured or presumed. — 6 Mass. 641.
    The first recognizance was and still is in force, undischarged, and Bowen was at large upon it, not under arrest or commitment, or order therefor, when the second was taken. Bail is the delivery of a man out of custody, &o. — 1 Burns’ Jus. 246; Tiff. on Crim. Law, 35; 1 Com. Dig. A. Bail.

      A. Williams, Attorney General, for the People.
    The Attorney General made several points in reply to constitutional and other objections urged on behalf of the plaintiff in error; but such points not being necessarily involved in the decision of the case, they are omitted.
   Martin Ch. J.

The record in this case shows that at the June term of the Circuit Court for the County of Ontonagon, in the year 1864, one Bowen was indicted for perjury, and that upon his arraignment and plea of “ not guilty,” a continuance of the trial to the next (September) term ivas granted upon his motion, Avith an order for a renewal of his recognizance; accordingly a new recognizance aves entered into by himself with certain sureties in open Court, and the cause continued. Intermediate the June and September terms, viz. in August, it appears that a second recognizance was entered into by Bowen, with other and new sureties, upon the indentical conditions as the first, before a Circuit Court Commissioner, and, as is admitted, in the same case. What was the occasion or reason for taking this second, recognizance, does not appear; the first, so far as the record shows, was, and still is in full force. Here then is the case of two recognizances in the same cause, one taken by authority of the Court, and before the Court; the other taken in vacation by an officer of the Court, but without discharge or release of the sureties upon the first, and for no apparent reason.

At the September term in 1864, Bowen was present in Court, and on the 22d day of that month, and during the term, the cause was continued for trial until the next (June) term, but without an order for the renewal of recognizance. Upon the day following, viz. the 23 d, the default of Bowen and of his sureties upon the second recognizance was entered, and there the matter rested. At the subsequent June term Bowen appeared ready for trial; when the cause was continued on motion of the Prosecuting Attorney, and Bowen to give new recognizance for his appearance at the next (September) term; but whether he did this, or not, does not appear,' — probably not. This order for continuance was made on the 21st of June, and on the 26th of June, and during the same term of court, a judgment was rendered upon the default entered at the September term of 1864, against Bowen and the sureties in the recognizance taken before the Circuit Court Commissioner. To vacate this judgment, application was made and denied.

By what authority the Circuit Court Commissioner took the recognizance of August, 1864, or how it superseded that taken in June previous in open court, does not appear from the record; and we are unable to find, either in the statute or in the practice of courts pursuing the course of the common law, any reason or rule by which he could have done so. It would be a strange doctrine, indeed, if an act of the commissioner, in vacation, could vacate and supersede the action of a court in. term. If the commissioner acted upon cause, such as surrender of the principal by the sureties, or other cause, such fact should have been spread upon the record in order to show that he had jurisdiction. In the absence of this showing, the recognizance taken before the Court is valid, and the only one upon which the People can rely, or resort to in case of default.

The record further shows a continuance of the cause at the June term of 1865, upon motion of the prosecuting attorney, Bowen being present and ready for trial, and Bowen was ordered to give new recognizance for his appearance at the next term of the court. This order was made upon the 21st of June; and during the same term, notwithstanding the fact of the presence of Bowen in court, ready for trial, and the continuance, on motion of the prosecuting attorney, a judgment was rendered upon the default taken in September, 1864, against him and the sureties, upon the recognizance entered into before the Circuit Court commissioner.

•We think there was manifest error in rendering the judgment in this case, and in the refusal to vacate it. We find no authority for the taking of the second recognizance and of course none for a judgment for default of its condition.

This view renders the consideration of the other questions presented unnecessary, if not improper.

The judgment of the court below is set aside and reversed.

Cooley J.

The Court having ordered the case continued to the next term, without any requirement that the recognizance should be renewed, there could not afterwards be a default for failure to attend further at that term. The default and all subsequent proceedings were, therefore, erroneous.

I also think that from all that appears in this case, the second recognizance was unauthorized and void. One had already been entered into, under direction of the Court, which still, for aught that appears, remained in full force at the time default was entered on the second. The two could not both be in force at once; and to warrant the second such facts should appear, by way of recital or otherwise, as would show that it was lawfully substituted for the first. As the case stands, not only is no jurisdiction in the commissioner to take the second recognizance shown affirmatively, but the existing prior recognizance shows prima facie a want of jurisdiction. On both grounds, therefore, the judgment should be reversed.

The other Justices concurred in the foregoing opinions.


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    Benjamin T. Rogers v. The People.

      Submitted May 3d.

      Decided July 11th.

    Error to Ontonagon Circuit.

      A. W. Buel, for plaintiff in error.

      A. Williams, Attorney General, for the People.
   The same facts existing in this case as in the foregoing case of Townsend v. The People, the same judgment was rendered therein.