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    John H. Allison v. Zachariah Chandler.
    Where suit is brought for a trespass committed while the defendant was aoting in good faith, and under an honest belief that ho had a legal right to do the act complained of, the plaintiff is entitled to recover only the actual damages sustained by him, and not damages of a punitory or exemplary character.
    Exoept in those actions where pnnitory or exemplary damages may be given, and ; those whose principal objeet is the establishment of a right, and where nominal damages may be proper, the only just theory of an action for damages, and its primary object, are, that the damages recovered should compensate for the* injury sustained.

      The statement that the rule of damages, where there is no fraud, willful negligence, malice, oppression, &c., is tho same in actions of tort as in those upon contract, though doubtless true in its application to those cases of tort where, from the nature of the case, elements of certainty exist by which substantial compensation may be readily estimated, and other oases which are but nominally in tort, can not be accepted as a principle of universal application, nor be justly applied to any case of actual aggrossive tort, where, from the nature and circumstances of the case itself, no such elements of certainty are found to exist, or none which will apply substantially to the whole case; nor to any case where the rule applicable to breaches of contract would exclude ta material portion of the damages the injured party may have suffered, though the amount of the latter may not he capable of accurate calculation by any fixed and definite rule.
    Where from tho nature of tho case the amount of the damages in an action of tort can not he estimated with certainty, or only a part of them can be so estimated, all the facts and circumstances of the case, having any tendency to show damages, or their probable amount, may he placed before the jury, so as to enable them to make the most intelligible and probable estimate which the nature of tlio case will permit, v
    Where by reason of defendant’s trespass the plaintiff is deprived, for the remainder of his term, of promises leased by him, he is not limited in his recovery of damages to such sum as the term might be worth to others, or the difference between the rent he was paying and the fair rental of the premises, if the premises were of much greater and peculiar value to him, on account of the bnsiness he had established, and the resort of customers to that particular place, or the good will of the place in his trade or business.
    And where, in consequence of the trespass rendering the premises untenantable, plaintiff was obliged to remove to another place of business, he is entitled to show, in an action for the trespass, that his business fell off in consequence, and how much.
    As a general thing, in an action purely of tort, where the amount of profits lost by the injury can he shown with reasonable certainty, they are not only admis - sible in evidence, hut they constitute, thus far, a safe measure of damages.
    And where the plaintiff was engaged in the business of repairing watches, making gold pens and selling jewelry, on the premises which were rendered untenantable by the trespass, it was held that evidence of his past profits in that business at that place, though they could not he taken as the exact measure of future profits, were proper to he proved and taken into consideration by the jury, and allowed such weight as they, in the exercise of good sonso and sound discretion, should think them entitlod to.'
    Where one commits a trespass, it is immaterial whether he actually contemplates the damages which result or not. He must be held to contemplate all the damages which legitimately follow from his illegal act.

      Heard July 14th cmd 15th.

      Decided October 20th.

    Error to Wayne Circuit, where Aliison brought suit against Chandler for trespass in breaking into a store occupied by plaintiff in Detroit, and tearing .off the roof, and committing other injuries by which it was rendered untenantable. The case was once before in the Supreme Court, and a full statement of the pleadings will be found in 10 Mich. Rep. 460. The prior judgment having been reversed, the following proceedings took place on the new trial.
    The plaintiff being sworn as a witness, gave testimony-tending to show that in .August, 1860, the plaintiff was the tenant of the defendant, in store number 176 Jefferson avenue, Detroit, and had been for several years, and as such tenant was rightfully in the possession of said store, and entitled to the peaceable and quiet enjoyment thereof, until May 1st, 1861, under an agreement made February 1st, 1860; that about August 15th, 1860, the defendant eaused the roof of said store to he torn off; that plaintiff repaired said roof; that a few days afterwards defendant again caused the roof to be torn off, and the gable end to be forced away and thrown down, and thus rendered the store entirely untenantable, and the plaintiff was in consequence forced to leave said store, and thereupon hired another store, the best he could obtain, but not nearly as good for his business, which consisted largely in repairing watches, making gold pens, and selling jewelry.
    The counsel for the plaintiff then asked the witness h'ow much the watch repairing business was worth a year? To which.- question the defendant objected as incompetent, and the Court sustained said objection, and excluded said testimony, and plaintiff excepted.
    The counsel for the plaintiff then asked the witness what was the extent or value of his whole business ? This question was in like manner objected to and excluded, as were also the further questions, whether his business, during the year prior to the time when said store was torn down, was a profitable one?
    And whether, after his removal to the new store, his business fell off, and if so, how much?
    The witness then further testified, that the reasons why his new place of business, which he obtained, was not as good a place for business as the store from which he was ejected, were that; his customers did not come to the new store, there was not so much of a thoroughfare by it, not one quarter of the travel, and he relied very much on chance custom, especially in the watch-repairing and other mechanical business.
    The plaintiff further to maintain the issue on his part, called as witnesses, S. Y. R. Herrick, G. W. Gatch and Samuel Hittel, whose testimony tended to show, that the plaintiff was, on or about the 21st of August, 1860, rightfully in the possession of said store, under an agreement made between plaintiff and defendant; that defendant then caused the roof and gable end to be destroyed when plaintiff’s clerk and sub-lessee were sleeping therein. And the testimony of said Hittel tended to show the conduct of defendant prior to the pulling down of said store, and his threats about pulling it down; and thereupon said plaintiff rested his cause.
    The defendant, on his part, called as witnesses, Z. Chandler, Allen Sheldon, G. D. Hill, and John Ileffron, whose testimony tended to show, that the plaintiff was not rightfully in the possession of said store at the time of his ejectment; that his right to the occupancy was dependent on the defendant’s wish to rebuild; that defendant had reserved that right, and before tearing down said store had notified said plaintiff that the defendant was about to rebuild, and that plaintiff must leave the store: the defendant thereupon rested his cause.
    The Circuit Judge charged the jury, upon the question of damages, as follows:
    1st. If the plaintiff is entitled to recover, he can only recover his actual damages if the jury find that the defendant, in doing the acts complained of, acted without malice and in good faith, under the belief that he had a legal right to • the possession of the store, and to tear it dowm, and that, in determining the question of damages, they should not take into consideration the value of the good will of the place, or the plaintiff’s probable profits.
    2d. That if the jury. find for the plaintiff, and find that the defendant, in tearing down the store, acted in good faith, and under an honest belief that he had a legal right to do so, that then the plaintiff can only recover his actual damages; and in determining them, the jury must confine themselves to the expenses of repairs after the first tearing off the roof, his loss of time and expense of moving, with the loss occasioned by the interruption of his business during the time of his removal, together with the difference, if any, between the rent paid and the fair rental value of the store for the year. And in determining this, the jury will take into consideration all the facts and circumstances of the case.
    To this charge the plaintiff' excepted, and judgment having been rendered in his favor for $100 only, the case came up for review upon the several exceptions thus taken.

      C. I. Walker, for plaintiff in error, cited:
    1. To show that “good will” and the injury thereto is a proper element in the damages to which plaintiff was entitled: —15 Ves. 224; 17 Ves. 346; 5 Russ. 29; 6 Beav. 276; Jac. 607; 1 Hoff. Ch. 69; 4 Sandf. Ch. 380; 4 Paige, 480; Coll. on Part. §162; Story on Part. §§99, 100.
    2. .'¡That irrespective of the question of good will, it Avas both proper and necessary to prove the value and extent of plaintiff’s business, before and after the trespass, for the purpose of showing the extent of the damage caused by the trespass:— Evans’ Pothier, 159-162; 3 La. An. 332; 4 Mart. N. S. 107; 9 La. An. 273; 3 La. An. 44; 1 T. Raym. 77; 11 Price, 19; 20 E. L. & E. 410; 9 Wend. 325; 17 Wend. 71; 7 Hill, 61; 35 Barb. 17; 7 Cush. 516; 13 How. 344; 36 Penn. 360; 3 E. L. & E. 497; 22 Barb. 278; 9 Exch. 341; 3 Barb. 424; 16 N. Y. 489; 11 Ill. 616; 18 Vt. 620; 6 Mich. 356; 2 Stark.
      106; 9 Bing. 68; 28 E. L. & E. 335; 10 N. Y. 489; 13 How. 101; 1 Blatch. 211; 8 Pick. 351; 13 How. 363; 8 Q. B. 779; 4 Moore, 12; 2 Bing. N. C. 281; 6 Bing. N. C. 212; 3 Duer, 406; 5 Duer, 559; 6 Duer, 315; 5 Ohio St. 594; 23 Wend. 425.
    3. That the charge was erroneous : — Chandler v. Allison, 10 Mich. 474; and cases above cited.

      Jerome & Swift and A. B. Maynard, for defendant in error, cited:
    1. To show that the questions were inadmissible: —16 N. Y. 489; 12 Wis. 313; 11 Ill. 613; 19 Geo. 416; 15 Ind. 499; 13 Gray, 429; 38 Me. 361; 16 Barb. 386; 3 Mich. 63; 36 Barb. 31; 7 Hill, 61; 13 How. 307; 7 Cush. 5, 16; 6 N. Y. 85; 21 Wend. 342; 9 Exch. 341; 6 H. & N. 210; 9 C. B. 632; 10 Cush. 177; 22 Geo. 269; 5 Denio, 306; 13 Gray, 481; 4 C. B. 322; 6 H. & N. 914; 32 Barb. 530; 1 How. 35; 13 How. 101; 21 Pick. 378; 11 Barb. 368; 29 Conn. 479; 2 Wis. 427; 3 E. D. Smith, 144; 29 Ala. 318; 14 Ala. 69; 17 Ala. 408; 5 Ohio St. 594; 6 Pet. 282; 6 Hill, 522; 4 Barb. 261; 6 Barb. 423; 5 Duer, 64; 1 Duer, 342; 8 N. T. 115; 1 Hilt. 39, 420.
    2. That the averment in the declaration did not warrant proof of loss of profits, if otherwise admissible: — 2 Pars. on Cont. 453; 1 Mass. 47; 13 Barb. 183; 12 Wend. 64; 4 Q. B. 493; 14 Wend. 159; 16 Johns. 122; 25 Ill. 86; 31 Mo. 117; 11 Ind. 522; 32 Me. 378; 47 Me. 419; 8 Barr, 479.
    3. That the exceptions to the charge were not well taken: —10 Wis. 388 ; 29 Conn. 479; 3 R. I. 88; 26 Conn. 355, 416; 7 Jones, 272; 2 N. H. 135; Baldw. 138; 8 Ired. 236; 1 Barr, 190; 10 Barr, 145; 14 Penn. 96; 1 W. & S. 13; 13 How. 363; 6 Pet. 282; 21 Wend. 144; 21 How. 202.
   Christiancy J.:

When this cause was formerly before us (Chandler v. Allison, 10 Mich. 460), one of the questions involved was, whether Allison, the plaintiff, was rightfully in possession of the store at the time the trespass was committed, or whether his right of possession was dependent upon Chandler’s election to rebuild, and ceased when that election was made: and one of the grounds upon which the judgment in that case was reversed, was, the rejection of evidence tending to show that Allison’s right of possession was thus qualified. But as the case now appears before us upon exceptions taken on the new trial, the finding of the jury, whether right or wrong — no exception having been taken to the evidence or the charge upon this point— requires us to treat this question, so far as we are now to consider the case, as settled in favor of the plaintiff; and the defendant must be considered as a trespasser, entering upon the premises and tearing down the store while in the rightful possession of the plaintiff, under a lease for a term which would not expire till the first day of May following.

, The only question presented by the present bill of exceptions, and not already disposed of by our former decision, is the question of damages; and in this action of trespass (as parties are under no necessity of protecting themselves by contract against trespasses), the question of damages is to be treated in all respects as it would have been, had the trespass been committed by a party between whom and the plaintiff the relation of landlord and tenant did not exist; except so far as the good faith of the defendant, and the absence of malice on his part, might preclude the plaintiff from the recovery of damages of a punitory and exemplary character, beyond the amount which would compensate the actual loss. Upon this point (the question of exemplary damages) we think the Court below was right in instructing the jury, that, if they should find the defendant, in tearing down the store, acted in good faith, and under an honest belief that he had a legal right to do so, then the plaintiff could only recover his actual damages. This qualification of the right of a jury to give punitory or exemplary damages in actions of trespass, is, we think, in accordance with 'the principle upon which such damages are sometimes allowed to be given. But whether the rulings of the Court, upon the admission of evidence, and in the charge to the jury, did not lay down too narrow a rule for the estimation of actual damages, is the main question for our consideration.

While in many cases the rule of damages is plain and easy of application, there are many others in which, from the nature of the subject matter, and the peculiar circumstances, it is very difficult — and in some cases impossible —to lay down any definite, fixed rule of law by which the damages actually sustained can be estimated with a reasonable degree of accuracy, or even a probable approximation to justice; and the injury must be left wholly, or in great part, unredressed, or the question must be left to the good sense of the jury upon all the facts and circumstances of the case, aided by siich advice and instructions from the court as the peculiar facts and circumstances of the case may seem to require. But the strong inclination of the courts to administer legal redress upon fixed and certain rules has sometimes led to the adoption of such rules in cases to which they could not be consistently or justly applied. Hence there is, perhaps, no branch of the law upon which there is a greater conflict of judicial decisions, and none in which so many merely arbitrary rules have been adopted. We have carefully examined all the cases cited in the very elaborate briefs of the respective counsel, and the most approved elementary treatises upon the subject; and, without attempting here to compare and analyze them (which would require a treatise), we are compelled to say that the line of mere authority upon questions of damages like that here presented, if any such line can be traced through the conflict of hostile decisions, is too confused and tortuous to guide us to a safe or satisfactory result, without resort to the principles of natural justice and sound policy which underlie these questions, and which have sometimes been overlooked, or obscured by artificial distinctions and arbitrary rules.

The principle of compensation for the loss or injury sustained, is, we think, that which lies at the basis of the whole question of damages in most actions at common law, whether of contract or tort. We do not here speak of those actions in which punitory or exemplary damages may be given, nor of those whose principal object is the establishment of a right, where merely nominal damages are proper. But, with these exceptions, the only just theory of an action for damages, and its primary object, would seem to be, that the damages to be recovered should compensate the loss or injury sustained. We concur entirely with the Court of Appeals in New York in Griffin v. Colver, 10 N. Y. 492, in repudiating the doctrine adopted by Mr. Sedgwick, from Domat (Sedgw. on Dams., 3, 37, 38, &c.), that “ the law aims not at the satisfaction, but the division, of the loss.” Such, it is true, is often the result of an action, but never the object of the law. The law may, and often does, fail of doing complete justice, from the imperfection of its means of ascertaining truth, and tracing and apportioning effects to their various causes; but it is not liable to the reproach of doing positive injustice by design. Such a doctrine would tend not only to make the law itself odious, but to corrupt its administration, by fostering a disregard of the just rights of parties. In actions upon contract, especially, 'and those nominally in tort, but substantially upon contract, courts have thought it generally safer, upon the whole, to adopt certain definite rules for the government of the jury by which the damages could be estimated, at the risk of falling somewhat short of the actual damages, by rejecting such as could not be estimated by a fixed rule, than to leave the whole matter entirely at large with the jury, without any rule to govern their discretion, or to detect or correct errors or corruption in the verdict. In such cases, therefore, there has been a strong inclination to seize upon such elements of certainty as the case might happen to present, and as might approximate compensation, and to frame thereon rules of law for the measurement of damages, though it might be evident that further damages must have been suffered, which, however, could only be estimated as matter of opinion, and must therefore be excluded under the rules thus adopted. And it is not to be denied that this course of decision has ¡ sometimes been extended to actions purely of tort.

But whatever plausibility there may be in the theory of Mr. Sedgwick when applied to actions upon contract — a plausibility which arises from mistaking the result for the object — the injustice of such a principle, when applied to cases of actual, positive tort, like that here in question, would be so gross as to shock all sense of justice.

It has been frequently said that the rule of damages, where there is no fraud, willful negligence, malice, oppression, &o., is the same in actions of tort as in those upon contract. But, though the remark is doubtless true in its application to those cases of tort where, from the nature of the case, elements of certainty exist, by which substantial compensation may be readily estimated, and other cases which are but nominally in tort, we do not think it can be accepted as a principle of universal application; nor, in our opinion, can it be justly applied to any case of actual, aggressive .tort, where, from the nature and circumstances of the case itself, no such elements of certainty are found to exist, or none which will apply substantially to the whole case: nor to any case where the rule applicable to breaches of contract would exclude a material portion of the damages the injured party may have suffered, though the amount of the latter may not be capable of accurate calculation by any fixed and definite rule.

There are some important considerations which tend to limit damages in an action upon contract, which have no application to those purely of tort. Contracts are made only by the mutual consent of the respective parties: and each party, for a consideration, thereby consents that the other shall have certain rights as against him, which he would not otherwise possess. In entering into the contract the parties are supposed to understand its legal effect, and, consequently, the limitations which the law, for the sake of certainty, has fixed for the recovery of damages for its breach. If not satisfied with the risk which these rules impose, the parties may decline to enter into the contract, or may fix their own rule of damages when, in their nature, the amount must be uncertain. Hence, when suit is brought upon such contract, and it is found that the entire damages actually sustained can not be recovered without a violation of such rules, the deficiency is a loss, the risk of which the party voluntarily assumed on entering into the contract, for the chance of benefit or advantage which the contract would have given him in case of performance. His position is one in which he has voluntarily contributed to place himself, and in which, but for his own consent, he could not have been placed by the wrongful act of the opposite party alone.

Again, in the majority of cases upon contract, there is little difficulty from the nature of the subject, in finding a rule by which substantial compensation may be readily estimated; and it is only in those cases where this can not be done, and where, from the nature of the stipulations, or the subject matter, the actual damages resulting from a breach, are more or less uncertain in their nature, or difficult to be shown with accuracy by the evidence, under any definite rule, that there can be any great failure of justice by adhering to such rule as will most nearly approximate the desired result. And it is precisely in these' classes of cases that the parties have it in ' their power to protect themselves against any loss to arise from such uncertainty, by estimating their own damages in the contract itself, and providing for themselves the rules by which the amount shall be measured, in casé of a breach; and if they neglect this, they may be presumed to have assented to such damages as may be measured by the rules which the law, for the sake of certainty, has adopted.

Again, in analogy to the rule that contracts should be construed as understood and assented to by the parties —if not as a part of that rule — damages which are the natural, and, under the circumstances, the direct and necessary result of the breach, are often very properly rejected, because they cannot fairly be considered as having been within the contemplation of the respective parties at the time of entering into the contract.

None of these several considerations have any bearing in an action purely of tort. The injured party has consented to enter into no relation with the wrong doer by which any hazard of loss should be incurred; nor has he received any consideration, or chance of benefit or advantage, for the assumption of such hazard; nor has the wrong doer given any consideration, nor assumed any risk, in consequence of any act or consent of his. The injured party has had no opportunity to protect himself by contract against any uncertainty in the estimate of damages: •no act of his has contributed to the injury: he has yielded nothing by consent: and, least of all, has he consented that the wrong doer might take or injure his property or deprive him of his rights, for such sum as, by the strict rules which the law has established for the measurement of damages in actions upon contract, he may be able to show, with certainty, he has sustained by such taking or injury. Especially would it be unjust to presume such consent, and to hold him to the recovery of such damages only as may, be measured with certainty by fixed and definite rules, when the case is one which, from its very nature, affords no elements of certainty by which the loss he has actually suffered can be shown with accuracy by any evidence of which the case is susceptible. Is he to blame because the case happens to be one of this character? He has had no choice, no selection. The nature of the case is such as the wrong doer has chosen to make it: and upon every principle of justice, he is the party who should be made to sustain all the risk of loss which may arise from the uncertainty pertaining to the nature of the case, and the difficulty of accurately estimating the results of his own wrongful act. Upon what principle of right can courts of justice assume — not simply to divide this risk, which would be thus far unjust — but to relieve the wrong doer from it entirely, and throw the whole upon the innocent and injured party? Must not such a course of decision tend to encourage trespasses, and operate as an inducement for parties to right themselves by violence, in cases like the present?

Since, from the nature of the case, the damages cannot be estimated with certainty, and there is a risk of giving by one course of trial less, and by the other more than a fair' compensation — to say nothing of justice — does not sound policy require that the risk should be thrown upon the wrong doer instead of the injured party? However this question may be answered, we can not resist the conclusion that it is better to run a slight risk of giving-somewhat more than actual compensation, than to adopt a rule which, under the circumstances of the case, will, in all reasonable probability, preclude the injured party from the recovery of a large proportion of the damages he has actually sustained from the injury, though .the amount thus excluded can not be. estimated with accuracy by a fixed and certain rule. Certainty is doubtless very desirable in estimating damages in all cases : and where, from the nature and circumstances of the case, a rule can be discovered by which adequate compensation can be accurately measured, the rule should be applied in actions of tort, as well as in those upon contract. Such is quite generally the case in trespass and trover for the taking or conversion of personal property; if the property (as it generally is) be such as can be readily obtained in the market and has a market value. But shall the injured party in an action of tort, which may happen to furnish no element of certainty, be ahowed t.o recover no damages (or merely nominal), because he can not show the exact amount with certainty, though he is ready to show, to the satisfaction of the jury, that he has suffered large damages by the injury? Certainty, it is ti-ue, would thus be attained; but it would be the certainty of injustice. And, though a rule of certainty may be found which will measure a portion and only a portion of the damages, and exclude a very material portion, which it can be rendered morally certain the injured party has sustained, though its exact amount can not be measured by a fixed rule; here to apply any such rule to the whole case, is to misapply it: and so far as it excludes ■all damages which can not be measured by it, it perpetrates positive injustice under the pretence of administering justice.

The law does not require impossibilities; and can not therefore require a higher degree of certainty than the nature of the case admits. And we can see no good reason for requiring any higher degree of certainty in respect to the amount of damages, than in respect to any other branch ■of the cause. Juries are allowed to act upon probable and inferential, as well as direct and positive proof. And when, from the nature of the case, the amount of the damages can not be estimated with certainty, or only a part of them can be so estimated, we can see no objection to placing before the jury all the facts and circumstances of the case, having any tendency to show damages, or their probable amount; so as to enable them to make the most intelligible and probable estimate jwhich the nature of the case will permit. This should, of course, be done with such instructions and advice from the Court as the circumstances of the case may require, and as may tend to prevent the allowance of such as may be merely possible, or too remote or fanciful in their character to be safely considered as the result of the injury.

In the adoption of this course it will seldom happen that the Court, hearing the evidence, will not thereby possess the means of forming a satisfactory judgment whether the damages are unreasonable, or exorbitant; and, if satisfied they are so, the Court have always the power to set aside the verdict and grant a new trial.

The justice of the principles we have endeavored to explain will, we think, be sufficiently manifest in their application to the present case. The evidence strongly tended to show an ouster of the plaintiff for the balance of the term, by the defendant’s act. This term was the property of the plaintiff; and, as proprietor, he was entitled to all the benefits he could derive from it. He could not by law be compelled to sell it for such sum as it might be worth to others; and, when tortiously taken from him against his will, he can not justly be limited to such sum — or the difference between the rent he was paying and the fair rental value of the premises — if the premises were of much greater and peculiar value to. him, on account of the business he had established in the store, ■and the resort of customers to that particular place, or the good will of the place, in his trade or business. His right to the full enjoyment of the use of the premises, in any manner not forbidden by the lease, was as clear as that to sell or dispose of it, and was as much his property as the term itself, and entitled to the same protection from the laws. He had used the premises as a jewelry store, and place of business for the repairing of watches, making gold pens, &c. This business must be broken up by the ouster, unless the plaintiff could obtain another fit place for it; and if the only place he could obtain was less fitted and less valuable to him for that piu-pose, then such business would be injured to the extent of this difference; and this would be the natural, direct and immediate consequence of the injury. To confine the plaintiff to the difference between the rent paid and the fair rental value of the premises to others, for the balance of the term, would be but a mockery of justice. To test this, suppose the plaintiff is actually paying that full rental value, and has established a business upon the premises, the clear gains or profits of which have been an average of one thousand dollars per year; and he is ousted from the premises and this business entirely broken up for the balance of the time; can he be allowed to recover nothing but six cents damages for his loss? To ask such a question is to answer it. The rule- which would confine the plaintiff to the difference between such rental value and the stipulated rent can rest only upon the assumption that the plaintiff might (as in case of personal property) go at once into the market and obtain another building equally well fitted for his business, and that for the same rent; and to justify such a rule of damages this assumption, must be taken as a conclusive presumption of law. However such a presumption might be likely to accord with the fact in the city of New York, in most western cities and towns it would be so obviously contrary to the common experience of the facts, as to make the injustice of the rule gross and palpable. But we need not further discuss this point, as a denial of any such presumption 'was clearly involved in our former decision.

The plaintiff in this case did hire another store, “the best he could obtain, but not nearly so good for his business” — “his costumers did not come to the new store, and there was not so much of a thoroughfare by it, not one quarter of the travel, and he relied much upon chance custom, especially in the watch repairing and other mechanical business.” This injury to the plaintiff’s business was as clearly a part of his damages as the loss of the ááwer itself. This point also was decided in the former case, and we there further held that the declaration was sufficient, to admit the proof of this species of loss.

Now if the plaintiff is to be allowed to recover for this injury to his business, it would seem to follow, as a necessary consequence, that the value of that business before the injury as well as after, not only might, but should be shown, as an indispensable means of showing the amount of loss from the injury. If the business were a losing one to the plaintiff before, his loss from its being broken up or diminished (if any thing) would certainly be less than if it were a profitable one. It is not the amount of business-done, but the gain or profit arising from it, which constitutes its value.

But it is insisted that loss of profits constitutes no. proper ground or element- of damages. If there be any such rule of law it is certainly not a universal, and can hardly be called a general rule. Decisions, it is true, may be found which seem to take it for granted that the ruléis universal. But there are numerous cases, even for breach of contract, in which profits have been properly held to constitute, not only an dement, but á measure (and sometimes the only measure) of damages: as in Masterton v. The Mayor, 7 Hill, 61; Phil. W. & B. R. R. Co. v. Howard, 13 How. 344. And in actions for breach of contract in not delivering goods (as wheat or other articles) having a marketable value, as well as in most-actions of-trespass or trover for the taking or conversion of such property — wherever the difference between the" contract price, or the market value at the time of taking or conversion, and the higher market value at any subsequent [period, is held to constitute the damages — in all such cases this difference of price is but another name for profits, and is yet very properly held to be a measure of damages. There is nothing therefore in the nature of profits, as such, which prevents their allowance as damages. But in many, and perhaps the majority, of cases upon contract in which the question has arisen, they have been held to be too remote or dependent upon too many contingencies to be calculated with reasonable certainty, or to have been within the contemplation of the parties at the time of entering into the contract.

But there are also cases for breach of contract where, though the profits were in their nature somewhat uncertain and contingent (and in most of them quite as much so as in the present case), they were yet held to constitute, not strictly a measure, but an element of damages proper for the consideration of a jury, to enable them to form a judgment or probable estimate of the damages; as in McNeill v. Reid, 9 Bing. 68; Bagley v. Smith, 10 N. Y. 489; Gale v. Leckie, 2 Stark. 107; Ward v. Smith, 11 Price, 19; Driggs v. Dwight, 17 Wend. 71; and see Passenger v. Thorburn, 36 Barb. 17. And in Waters v. Towers, 20 E. L. & E. 410 the jury were allowed to take into consideration the profits which might have been made upon a collateral contract (though void by the Statute of Frauds); and see McNeill v. Reid, supra; while, by the American authorities, profits of this description have been almost uniformly rejected.

But whatever may be the rule in actions upon contract, we think a more liberal rule in regard to damages for profits lost, should prevail in actions purely of tort (excepting perhaps the action of trover). Not that they should be allowed in all cases without distinction: for there are some cases where they might, in their nature, be too entirely remote, speculative or contingent, to form any reliable basis for a probable opinion. And perhaps the decisions which have excluded the anticipated profits of a voyage broken up by illegal capture, or collision, may be .properly justified upon this ground: upon this, however, we express no opinion. But generally, in an action purely of tort, where the amount of profits lost by the injury can be shown with reasonable certainty, we think they are not only admissible in evidence, but that they constitute, thus far, a safe measure of damages;' as when they are but another name for the use of a mill (for example), as in White v. Moseley, 8 Pick. 356; or for the use of any other property where the value or profit of the use can be, made to appear with reasonable certainty by the light of past experience, as might often be done where such profits had been for a considerable time uniform at the same season of the year, and there are no circumstances tending to show a probable diminution, had the injury not occurred. And possibly the same view, subject to the like qualifications, might have been taken of the profits of the plaintiff’s business, had it been confined to the mechanical- trade of repairing watches and making gold pens, particularly if done purely as a cash business. But this business seems to have been carried on with that of the sale of jewelry; he kept a jewelry store, and the profits of so much of his business as may be regarded as mercantile business, are dependent upon many more contingencies, and therefore more uncertain, especially if sales are made upon credit. Past profits, therefore, could not safely be taken as the exact measure of future profits ; but all the various contingencies by which such profits would probably be affected should be taken into consideration by the jury, and allowed such weight as they, in the exercise of good sense and sound discretion, should think them entitled to. Past profits in such cases, where the business has been continued for some length of time, would constitute a very material aid to the jury in arriving at a fair probable estimate of the future profits, had the business still continued without interruption.

Accordingly such past profits have been allowed for this purpose, both in actions ex contractu and ex delicto, though more frequently in the latter, where from the nature of the case no element of greater certainty appeared, and the actual damages must be more or less a matter of opinion; and where, as in the present case, though somewhat inconclusive, it was the best evidence the nature of the case admitted. See Wilkes v. Hungerford, 2 Bing. N. C. 281; Ingram v. Lawson, 6 Bing. N. C. 212; Lacour v. The Mayor, 4 Duer, 406 ; and the following in actions upon contract, Driggs v. Dwight, 17 Wend. 71; Bagley v. Smith, 10 N. Y. 489.

But it is. urged by the counsel for the defendant that damages for tlie loss of profits ought not to be allowed, because they could not have been within the contemplation of the defendant. Whether, as matter of fact, this is likely to have been true, we do not deem it important to inquire. It is wholly immaterial whether the defendant in committing the trespass actually contemplated this, or any other species of damage to the plaintiff. This is a consideration which is confined entirely to cases of contracts, where the question is, what was the extent of obligation, in this respect, which both parties understood to be created by the contract. But where a party commits a trespass he must be held to contemplate all the damages which may legitimately follow from his illegal act. And where a party, though acting in good faith, yet knowing his right to be disputed by a party in possession, instead of resorting to a judicial trial of his right, assumes to take the law into his own hands, and, by violence, to seize the property or right in dispute, he must be held thereby to assume, on the one hand, the risk of being able to show, when the other party brings him into Court, that the property or right was his or that his act was legal; or, on the other, of paying all the damages the injured party may have suffered from the injury; and if those damages are in their nature uncertain, then such as, from all the circumstances, or the best light the nature of the case affords, a jury in the exercise of good sense and sound discretion, may find to be a full compensation.

We are therefore entirely satisfied that all the questions put to the witness, Allison, touching the nature, extent and profits of the business, before and after the trespass, were .competent, and improperly overruled; and that the charge of the Court, so far as it excluded all consideration of the good will of the place, its peculiar value to the plaintiff, and his probable profits, was erroneous.

■The judgment must be reversed, with costs to the plain-, tiff, and a new trial granted.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    LAIDLAW v. CITY OF DETROIT.
    Contracts — Penalty—Duress.
    Plaintiffs, paving contractors, agreed to do certain paving for the defendant, to be completed by a specified date. The contract contained a stipulation that a certain sum should be forfeited to defendant for each day, beyond the time specified, that the work remained unfinished. The completion was delayed, and the board of public works, after extending the time for several days, required the payment of the penalty for the time further delayed before they would accept the work and permit plaintiffs to obtain the contract price. Plaintiffs thereupon paid the penalty under protest, claiming that the delay in the completion of the work was dire to the fault of the defendant, and sued to recover the amount so paid. Held, that payment being made with full knowledge of all the facts, and of all their rights under the contract, there-was no duress, and plaintiffs could not recover.
    Error to Wayne; Lillibridge, J.
    Submitted June 4, 1896.
    Decided June 30, 1896.

      Assumpsit by Thomas W. Laidlaw and another against the city of Detroit to recover a sum of money alleged to have been paid under duress. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.
    Plaintiffs made a contract with the defendant, June 7, 1892, by which they agreed to do certain paving. The work was to be completed September 30th. It was not „ completed until November 14th. The contract contained tlie following clause: “If the contractor shall fail to complete the work by the time above specified, the sum of $25 per day for each and every day thereafter, until such completion, shall be paid to the city of Detroit through the board of public works.” Plaintiffs claim that they were prevented from completing the work within the time limited, by the failure of the city to remove some obstructions in the street, while the city claims that the work was not commenced in time, and that the delay was not its fault. The board of public works allowed plaintiffs 10 days, besides Sundays, making 17 in all, and insisted upon the payment of $25 per day for 2-8 days, under the terms of the contract. The board of public works, in the exercise of its power, required this payment into the city treasury before notifying the common council that the work had been accepted, so that they might obtain the contract price. Plaintiffs paid the $700 by check, upon which they indorsed, “Paid under protest.” The board then notified the common council that the work was satisfactorily completed, and plaintiffs were paid the full contract price. They then instituted this suit to recover the $700 upon the basis that it was paid under duress. The court directed a verdict for the defendant.

      Charles Floioers, for appellants.

      John J. Speed, for appellee.
   Grant, J.

(after stating the facts). The instruction was correct. This was not' a duress of goods, as Astley v. Reynolds, 2 Strange, 915, cited in Hackley v. Headley, 45 Mich. 570. Plaintiffs insisted that they had been legally excused for not completing their contract in time. The defendant insisted, through its proper board, that they had not. If they had a legal excuse, their right of action was complete, and none of their rights were in jeopardy by the demand of the board of public works. They accepted a release of the forfeiture for 17 days. They chose, however, to permit the board, -to notify the common council that the contract was completed, and that they were entitled to their pay. Had they brought suit for the entire contract price, they might not have obtained the benefit of the .17 days which the board gave them. However this may be, there was no legal duress. The payment was made with the full knowledge of all the facts, and with the further knowledge that, under their own view of the case, they could then have brought suit against the defendant for the whole amount. Cicotte v. County of Wayne, 59 Mich. 509; Weston v. County of Luce, 102 Mich. 528.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    VAN VOORHIS v. BOND.
    Equity Pleading — Prayer for Relief — Subrogation.
    Under a bill alleging that complainant loaned money to defendant with which to pay a mortgage, in reliance upon defendant’s promise to execute a new mortgage to complainant for the amount advanced, asking, as specific relief, that defendant be required to execute such mortgage, but containing-a prayer for general relief, a decree subrogating complainant, to the amount of his claim, to the rights of the holder of the mortgage prior to its discharge, is warranted.
    Appeal from superior court of Grand Rapids; Burlingame, J.
    Submitted June 5, 1896.
    Decided June 30, 1896.
    Bill by Henry Van Voorhis against Belle Bond to compel the execution of a mortgage. From a decree for complainant, defendant appeals.
    Affirmed.

      Ernest L. Martin (Lombard Bros., of counsel), for Complainant.

      McKnight & McKnight, for defendant.
   Moore, J.

Complainant is a resident of the city of Grand Rapids, and in January, 1892, began to board and room at the house of defendant, and continued to do so for a period of about 22 months, at an agreed price of $5 per week. March 29, 1892, complainant loaned defendant $1,067, and received as security a note and mortgage for that amount, covering defendant’s property. At this time and subsequently complainant and his wife, Florence M. Van Voorhis, were engaged in litigation which resulted in a decree of divorce, with alimony, being obtained by the latter. In making his settlement of alimony, complainant assigned to Mrs. Van Voorhis the Bond mortgage. This is a proceeding in chancery, complainant filing a bill in which he alleged that in June, 1894, Mrs. Van Voorhis threatened to foreclose the Bond mortgage, which, with unpaid interest, then amounted to $1,246; that at defendant’s request complainant loaned Mrs. Bond $1,146 to aid her in' paying the mortgage. He also alleges that when the loan was made Mrs. Bond told him she would execute to him a mortgage upon the same property for the amount of this loan. Complainant further alleged that he made several requests of Mrs. Bond for the execution of the mortgage as promised, but that she said she was about to sell the property, and could best dispose of it if unincumbered, and that she would pay him after the sale; that complainant’s attorneys made two formal demands upon defendant to execute the mortgage as she had agreed to do, both of which were refused. The bill prays that Mrs. Bond be decreed to execute a mortgage to complainant for $1,146, with interest, that she be enjoined from disposing of or incumbering her property, and with a general prayer for relief.

Defendant answered complainant’s bill, admitting the execution of the mortgage for $1,067, but alleged that complainant agreed not to sell or assign the same, nor to place it upon record; that the mortgage was subsequently assigned to Mrs. Van Voorhis, and that complainant gave her $1,146 to aid in paying this .mortgage; that the money was not a loan, but was in payment of what complainant owed her; that he had lived at her house upwards of 22 months, and that he was an old man, in feeble health, and demanded considerable care and personal attention; that it was agreed between them that the sum of $1,146 should be in payment of these claims. Defendant denied ever promising to give complainant a mortgage for this money, or that she was attempting to dispose of her property, and asked that the bill be dismissed.

Upon the trial of the cause, the circuit judge rendered a decree in favor of complainant, holding that upon the mortgage assigned to Mrs. Van Voorhis there was due $1,246, for the payment of which complainant loaned defendant $1,146; that complainant was entitled to that sum, less $440, 'the amount of 88 weeks’ board at $5 per week, leaving a balance of $706 due complainant. Defendant was decreed to pay this sum, with interest from August 30, 1895, at the same rate as that of the original mortgage of March, 1892; that complainant should have a lien for $706, .with interest, upon the property described in the mortgage, of the same nature, force, and effect as the lien held by Florence M. Van Voorhis prior to the discharge of her mortgage on May 31, 1894, and that complainant be subrogated to own and possess all the rights and equities formerly held by Mrs. Van Voorhis by virtue of that mortgage; that in default of payment complainant might foreclose said lien in the same manner as provided for in the mortgage. From this decree defendant appeals, and claims, among other things, that the bill sets up one theory, and that the decree was rendered upon an entirely different theory.

It is urged that, as complainant asks that defendant be required to execute a new mortgage, a decree subrogating complainant to the rights held by Florence M. Van Voorhis was not warranted by the pleadings. A careful examination of the record shows that the proofs fully warranted the decree, and the only question to be disposed of is, were the pleadings in a condition to allow such a decree to be rendered ? The stating part of the bill of complaint sets out the facts fully. This being so, we think it entirely competent, under the general prayer for relief, to render such a decree as was granted by the circuit judge.

The decree is affirmed, with costs of both courts.

The other Justices concurred.


author: Hooker, J. Grant, J.

text:
    BARRETT v. GRAND RAPIDS VENEER WORKS.
    1. Breach op Contract — Damages—Loss op Profits.
    The profits lost to a mill owner by reason of a failure to comply with an agreement to supply him with logs to be manufactured into lumber at a fixed price are not, as a matter of law, so speculative as to preclude a recovery.
    2. Same — Question for Jury.
    Whether, in consideration of the alleged limited capacity of the mill, the uncertainty of the cost of labor and repairs, and the delays arising from breakage, the mill owner would have derived a profit from his contract, is, upon conflicting evidence, a question for the jury.
    Error to Kent; Adsit, J.
    Submitted June 5, 1896.
    Decided June 30, 1896.

      Assimpsit by Ervin E. Barrett against the Grand Rapids Veneer Works for the breach of a contract to stock plaintiff’s mill. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Walbridge & McAllister (Fedewa & Walbridge, of counsel), for appellant.

      Taggart, Knappen & Denison, for appellee.
   Hooker, J.

The trial court directed a verdict for the defendant in this cause, upon the ground that the damages claimed were speculative, and therefore not recoverable. The parties made a written contract, by which the plaintiff promised to erect a mill upon the defendant’s land, and manufacture the timber thereon into lumber and shingles, of good merchantable quality; defendant undertaking to provide the logs and bolts at the mill, and to pay certain prices, fixed by the contract, for the plaintiff’s services.

Counsel for the defendant insist that the case should be ruled by the case of Talcott v. Crippen, 52 Mich. 633. But that case should be read in the light of Leonard v. Beaudry, 68 Mich. 312, and Fell v. Newberry, 106 Mich. 542, cases much like the present one. Both of these cases hold that, where a plaintiff has a contract with the de"fendant for manufacturing goods for him at a fixed price, the loss of profits is ascertainable by deducting the reasonable cost of manufacture. Such a case is unlike one where the plaintiff must, stock his mill, and sell the product in the market. If there is uncertainty in this case beyond that in the case of Fell- v. Neioberry, it is in the alleged inability of the mill to cut a sufficient quantity to earn a profit, considering the uncertainty of the cost of labor and repairs and delay arising from breakage. It is said that it was incapable of performing good work, that it frequently broke down, did not do good work, and, in short, ran at a loss while it ran. But these things were disputed, and whether the plaintiff would, or would not, have been able to make a profit from his contract, was a question for the jury to determine, as in Fell v. New-berry. We think that the evidence upon this subject is not so conclusive as to justify the court in taking the case from the jury.

The judgment is therefore reversed, and a new trial ordered.

Long, C. J., Montgomery and Moore, JJ., concurred with Hooker, J.

Grant, J.

The case is within Fell v. Newberry, 106 Mich. 542, and I therefore concur.


author: Hooker, J.

text:
      In re BROOKS’ ESTATE.
    1. Executors and Administrators — Appointment—Publication of Hearing — Waiver.
    One who appears and contests an application for the ajipointment of an administrator cannot complain that the prablication of the time and place of hearing was insufficient to confer jurisdiction upon the court to make the appointment.
    2. Pleading — Petition for Administrator — Non-traversable Allegation — Effect of Demurrer.
    Where an answer to a petition for the appointment of an administrator attempts to traverse the allegation that the intestate died possessed of real and 'personal property, a demurrer thereto, on the ground that such allegation is not traversable, does not admit the non-p>ossession of property, so as to justify the probate court in denying the petition upon that ground.

      Certiorari to St. Clair; Vance, J.
    Submitted June 5, 1896.
    Decided June 30, 1896.
    • John Edward Jenkinson appealed from an order of the probate court denying his petition for the appointment of an administrator of the estate of George Brooks, deceased. From an order dismissing the appeal, petitioner brings certiorari.

    Reversed.

      Chadwick & Mclhvain, for petitioner.

      Atkinson & Wolcott, for appellee, Sarah E. Brooks.
   Hooker, J.

John Edward Jenkinson, an infant, by his next friend, filed a petition for the appointment of an administrator of the estate of his grandfather, alleging that he died intestate, and that, at the time of his death, he was possessed of real and personal estate, estimated at the respective values of $50,000 and $3,000.

A- point is made that the publication was not sufficient, but it does not appear to be argued. As the appellee appeared and contested the application, she cannot be heard to complain. She filed an answer, stating, in substance, that, previous to his death, the intestate conveyed all of his property, and died penniless. It also stated that petitioner had filed a bill to set aside one or more of these conveyances. This was a sworn answer. A demurrer to this answer was filed, and the important ground is that ‘ ‘ the court cannot inquire, as a preliminary question, whether deceased had an estate, real or personal, or whether the same was legally disposed of. ” The circuit court, upon appeal, dismissed the petition, upon the ground that the pleadings and proofs did not show the existence of an estate. In this we think there was error. The case appears to be similar to In re Nugent’s Estate, 77 Mich. 500, and In re McCarty, 81 Mich. 460. See, also, Hubbell v. Blandy, 87 Mich. 212; Findlay v. Railway Co., 106 Mich. 700.

An attempt is made to break the force of appellant’s contention by the claim that, the answer being demurred to, the allegation that intestate left no estate is admitted. The logic of this position is that, although the probate court has no authority to enter into an inquiry upon this subject, or to deny the petition, upon defendant’s answer, and although, therefore, the answer was demurrable, still, when it was demurred to, the answer became sufficient, because of the rule that a demurrer admits the allegations of the pleading demurred to to be true. In other words, an answer which states no valid defense, because the court has no jurisdiction to try the question it raises, becomes a complete defense to the proceeding’ when demurred to upon that particular ground, by force of the admission of the truth of the facts stated in the answer. The facts stated in the petition required the'appointment of an administrator, and the probate court and the circuit court were both in error in supposing that such appointment could be properly denied, upon the admission by demurrer of a fact which was not well pleaded. Hungerford v. Sigerson, 20 How. 156.

The order of the circuit court dismissing the appeal is reversed, with costs, and the cause remanded for further proceedings. The probate court is directed to grant letters of administration to John Jenkinson, as prayed.

The other Justices concurred.


author: Montgomery, J.

text:
    CURNOW v. KESSLER.
    1. Justices of the Peace — Jurisdiction—Complaint.
    Under 2 How. Stat. § 7093, providing that, on complaint being made to a justice of the peace of the commission within his county of an offense cognizable by him, he shall examine the complainant on oath, and the witnesses produced by him, and, if it appear that the offense has been committed, shall issue a warrant of arrest, a justice has jurisdiction to issue such warrant upon a complaint sworn to on information and belief, where it is supplemented by testimony on oath of witnesses cognizant of the facts.
    2. Same — Presumption.
    It will not be presumed that there was no positive evidence before a justice of the peace justifying the issuance of a warrant, although the complaint was made on information and belief, where the warrant recites that; prior to its issuance, the justice examined on oath a witness other than the complainant.
    3. Same — Official Act — Immunity from Prosecution.
    A justice of the peace, having acquired jurisdiction to issue a warrant of arrest, cannot be held personally liable to the individual arrested upon the ground that such action was the result of corrupt or malicious motives.
    4. Same — Error of Judgment.
    The inclusion in a sentence imposed by a justice of the peace of compensation to the complaining witness is an error of judgment at most, and does not render the justice liable to the accused in a civil action.
    Error to Houghton; Hubbell, J.
    Submitted June 5, 1896.
    Decided June 30, 1896.
    Case by John Curnow against Frank W. Kessler, a justice of the peace, for false imprisonment and malicious prosecution. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      J. F. Hambitzer, for appellant.

      Dunstan & Hanchette, for appellee.
   Montgomery, J.

The defendant is a justice of the peace, and, while acting in that capacity, issued a warrant for the apprehension of plaintiff on the complaint of one Alfred Leclere. Plaintiff was arrested, brought before defendant, the cause adjourned, and a trial had before a jury. Plaintiff was convicted, sentenced to pay a fine of $16, including costs, which he paid, and was discharged. The declaration sets forth all these facts, and also avers that the complaint was not sufficient to confer'jurisdiction upon the justice, and also that defendant acted maliciously in what he did, and with a view to assisting the complaining witness to collect a civil demand of the plaintiff.

The material portion of the complaint is as follows:

“The complaint of Alfred Leclere, of So. Lake Linden, taken and made before me, Frank W. Kessler, a justice of the peace of Torch Lake township, in said county of Houghton, upon the 6th day of May, A. D, 1895, who, being duly sworn, 'says that heretofore, to wit, on the 3d day of May, A. D. 1895, John Curnow, of So. Lake Linden, Houghton Co., Mich., at the town of So. Lake Linden, in the said county of Houghton, has taken mortar which belongs to Alfred Leclere, without his consent or his permission, of the value of five dollars, of the goods and chattels and property of Alfred Leclere, of So. Lake Linden, in the town of So. Lake Linden, then and there being found, was then and there taken or carried away, or feloniously stolen, taken, and carried away, and that he is informed by Jos. Robarge and Herenler Lachance, and believes, and has good reason to believe, that John Curnow did feloniously steal, take, and carry away the said above-described goods and chattels, mortar, as above set forth.”

The warrant issued upon the complaint recites the substance of the complaint, and contains the following further recitation:

‘ ‘ And whereas, on examination on oath of said Alfred Leclere, and of witness produced by said Alfred Leclere, by and before me, the said justice of the peace, it appears to me, the said justice of the peace, that said offense has been committed, and that thei’e is just and reasonable cause to believe the said John Curnow, of So. Lake Linden, to have been guilty thereof.”

The complaint is inartificial, but it contains a description of property belonging to Alfred Leclere, the complaining witness, and it is alleged on the oath of the complainant that the property was taken without his consep^, and, further, that the complainant is informed by certain named persons, and has good reason to believe, that' John Curnow did feloniously steal, take, and carry away the said above-described goods and chattels. If a complaint on information and belief may be the basis of proceeding before a justice when supplemented by testimony on oath of witnesses cognizant of the facts, we think this complaint was sufficient to confer jurisdiction. Counsel for plaintiff states that the complaint shows that no evidence was introduced except that of the complaining witness, which was hearsay. We do not so understand the record. The complaint is silent upon the subject, but the warrant recites that another witness was examined on oath. The statute (section 7093, 2 How. Stat.) reads:

“Upon complaint made to any justice of the peace, by any constable or other person, that any of the foregoing offenses have been committed within the county, he shall examine the complainant on oath, and witnesses produced by him, and shall reduce the complaint to writing, and cause the same to be subscribed by the complainant, and, if it shall appear that such offense has been committed, the said justice shall issue his warrant,” etc.

It will be noticed that the statute does not require that the examination of witnesses be reduced to writing. In the case of People v. Heffron, 53 Mich. 530, relied upon by plaintiff, the court said: “The complaint must set up the facts constituting the offense on the knowledge of the person making the complaint, and, if he does not know them, other witnesses must be examined who do know them.” This language very plainly implies that the complaint may be made by one who does not personally know the facts, and supplemented by an examination of witnesses who can speak to the facts of their own knowledge. If it had appeared that the only evidence before the justice at the time the warrant was issued wai> the statements contained in this complaint on information and belief, he would have been without jurisdiction; but, as the contrary appears, and that he examined witnesses on oath, other than the complaining witness, it will not be presumed that there was no positive evidence justifying the issuing of the warrant. People v. Bennett, 107 Mich. 256.

The justice having obtained jurisdiction of the subject-matter, the rule is well settled that no action can be sustained against him for the-recovery of damages by one claiming to have been injuriously affected by his judicial action. It is indispensable to the administration of justice that a judge or other judicial officer, who acts within the scope of his jurisdiction, may act freely, without any fear of being held responsible in a civil action, or having his motives brought in question by one injuriously affected by his judgments. This immunity is uniformly held not to be affected by the motives with which it is alleged that the judicial officer has performed his duty. If the officer be in fact corrupt, the public has its remedy, but the défeated suitor cannot be permitted to obtain redress against the judge by alleging that the judgment against him. was the result of corrupt or malicious motives. See Bradley v. Fisher, 13 Wall. 335; Mechem, Pub. Off. §§ 619-621.

It is also claimed that the sentence of the justice included compensation to the injured party. The docket entry is not all returned in the record, and it is not quite clear whether the figures given in the docket indicate that the justice undertook to award compensation to the complaining witness, or whether they were the figures which he adopted for his own convenience, to make up the total of the fine imposed. However this may be, it was an error of judgment at most, and does not entitle the plaintiff to recover. We think the circuit judge was justified in directing a verdict for defendant.

Judgment affirmed.

The other Justices concurred.


text:
    FIRST NATIONAL BANK OF ST. IGNACE v. WILLIAMS MILLING CO.
    Dissolution op Attachment — Citation—Service.
    Under 3 How. Stat. § 8038, requiring the citation- in proceedings to dissolve an attachment to be served on the plaintiff at least three days before the return day, a service made on the fourth day before the return day, one of the intervening days being a Sunday, is insufficient.

      Certiorari to Bay; Maxwell, J.
    Submitted June 5, 1896.
    Decided June 30, 1896.
    Attachment. From an order dissolving the writ, plaintiff brings certiorari.

    Reversed.

      Simonson, Grillett & Courtright, for plaintiff.

      T. F. Shepard, for defendant.
   Grant, J.

The plaintiff brought suit in attachment against the Williams Milling Company, under which the sheriff levied upon and seized certain property. The milling company filed a petition before the circuit judge for a dissolution of the attachment. The citation was issued and served October 24th, returnable October 28th. A Sunday intervened. Plaintiff appeared specially, and moved to quash the proceedings for insufficiency of notice. The statute requires the citation to be served at least three' days before the return day. The notice was insufficient. Caupfield v. Cook, 92 Mich. 626.

The order dissolving the attachment must be set aside, and an order entered for the return of the property into the possession of the sheriff.

The other Justices concurred.


text:
    REED v. ISMOND.
    Contracts — Deceit—Remedy—Assumpsit.
    A party who, pursuant to a contract for an exchange of property, accepts a deed to certain city lots specified therein, cannot waive the tort of his grantor in falsely representing that a lot pointed out by him to the grantee was one of the parcels to be conveyed, and maintain assumpsit for the value of the parcel shown him, even though he executes and tenders back a deed of the lot actually conveyed.
    Error to Eaton; Smith., J.
    Submitted June 5, 1896.
    Decided June 30, 1896.

      Assumpsit by Mary D. Reed against Oscar C. Ismond for the value of a lot alleged to have been fraudulently omitted from a deed. From a judgment for plaintiff, defendant brings error. •
    Reversed.
    On April 4, 1895, the plaintiff, being the owner of a stock of goods situated in Eagle, Clinton county, and the defendant, being the owner of certain lots of land in the city of Battle Creek, entered into a written contract, the material part of which reads as follows:
    ‘! The said party of the first part agrees to execute and deliver to the said second party, on or before the 11th day of April, 1895, a good, sufficient warranty deed of the following named property, viz.: The north half of lot No. 21, 3x8 eight rods, Paseos’ addition to Battle Creek City (improved); improved lot number (104) of Roberts’ addition to Battle Creek City, now vacant; lot number (54) of Nichols’ addition to Battle Creek, Mich.; lot number 50, Frisbie’s South Side addition to Battle Creek, Mich. Lot number 50 is subject to a contract of $2,500 dollars, interest 7 per cent.1 Said $2,500 is due in March, 1896, which the said second party assumes as to its terms. This realty shall be free and clear from all claims whatever. If any impossibility to perfect title by first party, then this contract shall be null and void. Abstract of title shall be furnished on all this realty free of cost to second party. The insurance policies on all the property sháll be transferred to second party free of cost to second party. For which the second party agrees to give a bill of sale of all the boot and shoe stock, all,the grocery stock, also all the hardware stock except buggy axles,'situated in the village of Eagle, Clinton Co., Mich.; said goods to be invoiced at cost mark on goods. Said goods are to be free and clear of all and every incumbrance whatever. The consideration of this realty is $5,900, to be paid in the above-mentioned goods.”
    Prior to its execution, and while negotiations were pending, plaintiff’s husband, her agent, went to Battle Creek, to see these lots. Plaintiff claims that the defendant did not in fact show him lot 50, but fraudulently showed him another lot in another part of the city, which was of much greater value than the one described in the contract. Shortly after the contract was executed, the goods delivered, and the deed executed, plaintiff and her husband went to Battle Creek, and then discovered, as they assert, the deception which had been practiced upon them. She then executed and tendered to the defendant a deed of lot 50 as described in the contract, and instituted this suit to recover $2,500, the value of the lot. The suit was brought by attachment. The declaration is in cissiompsit, and contains two special counts and the common counts. The first special count sets forth the transaction, and alleges that by reason of the premises an action has accrued to her to recover from the defendant the value of the lot so pointed out and shown to her; that he thereupon became and was justly indebted to her in the sum of $2,500 for the reasonable price and value of said lot, subject to such alleged contract, and, being so indebted, then and there undertook and promised to pay the same. The second special count contains a like statement of facts, and alleges the right to recover the same as the balance due upon the purchase price of the goods. The case was submitted to the jury upon this theory, and a verdict rendered for the plaintiff for the full amount claimed.

      McPeek, Jones & Dcmn and Huggett & Smith, for appellant'.

      Cahill & Ostrander, for appellee.
   Grant, J.

(after stating the facts). The position of the plaintiff is that, though the contract described lot 50, yet that was not in fact the land contracted for, but that plaintiff in fact purchased the lot pointed out to her as lot 50; that such representations were warranties, and as such were a part of the contract; and that the tort can be waived, and an action of assumpsit maintained. We cannot concur in this view. The case is ruled by Emerson v. Spring Co., 100 Mich 133, Bedier v. Fuller, 106 Mich. 342, and Warnes v. Brubaker, 107 Mich. 440.

Judgment reversed, and no new trial ordered.

The other Justices concurred.


author: Long, C. J.

text:
    RAWLINGS v. FISHER.
    1. Evidence — Bills and Notes — Ambiguous Indorsement.
    In a suit upon a promissory note’ bearing date May 31, 1894, parol evidence was admissible to show the understanding upon which an indorsement was made June 38th, reciting the receipt of money “to be indorsed on interest from January 1, 189until June 1, as far as interest calls.”

    3. Pleading — Notice of Set-off — Amendment During Trial— Discretion of Court.
    A refusal to permit defendant to amend his notice of set-off during the trial of an action on a promissory note, so as to add a further claim, is not ground for reversal of the judgment, the matter being entirely within the discretion of the court.
    Error to Kent; Adsit, J.
    Submitted May 5, 1896.
    Decided June 30, 1896.

      Assumpsit by Edward Rawlings against Olive B. Fisher upon a promissory note. From a judgment for plaintiff ón verdict directed. by the court, defendant brings error.
    Affirmed.

      G. H. Gleason, for appellant.

      Maher & Salsbury, for appellee.
   Long, C. J.

'Plaintiff had judgment below, under the direction of the court,'for $795.60. The action was commenced to recover upon a promissory note of $765.85. There was an indorsement appearing upon the back of the note, as follows: “Received on within fifty dollars, to be indorsed on interest from January 1, 1894, till June 1, as far as interest calls. June 28, 1894.” The note bears date May 31, 1894. In addition to the recovery upon the note, the plaintiff sought to recover under a bill of particulars covering a period of dealings from May, 1887, to January, 1894, amounting to some $9,000. No set-offs were included in this bill of particulars. The defendant, under the plea of the general issue, gave notice of set-off, and filed a bill of items amounting to $12,000. Plaintiff’s counsel demanded a more specific bill of items of set-off, which was thereafter furnished, before the case proceeded to trial.

It appears that the plaintiff was in the employ of the defendant, upon a farm owned' by her in Ottawa county, from May, 1887, to January, 1894. By the terms of the contract of hiring, he was to be settled with by her monthly, but it was shown that, upon one occasion, a balance of $400 had accumulated in his favor, and that, again, in March, 1894, the defendant owed the plaintiff a balance of $815.85, for which she gave a duebill, subject to correction. On May 31, 1894, this duebill was taken up, and the note sued upon given in its place, payable in six months from date, with interest, and the indorsement before recited was thereafter made. The testimony of the plaintiff shows that, after giving the note, he negotiated with the defendant for a wagon, for which she asked $50; that at that time he claimed to be entitled to interest on his earnings, running from the time they became due under the contract of hiring, which the defendant was unwilling to allow, but that she offered to allow interest from January 1, 1894, when his term of service ended; that he accepted this offer, and purchased the wagon at the price named; and that the defendant thereupon made the indorsement upon the note for that purpose. Objection was made to the introduction of this testimony, that it was inadmissible under the declaration, and had no tendency to prove consideration. The court permitted the testimony to be given. Error is assigned upon this admission. We think the court was not in error in permitting the plaintiff to show what the understanding was between the parties in relation-to the indorsement. The writing is not specific as to just what interest should be allowed, but it is evident that it was to commence January 1, 1894. It was therefore open to explanation by either party as to what the understanding was when the wagon was purchased, and that whatever balance might have been left after the interest had been computed should be applied upon the interest on the note.

During the trial, defendant’s counsel asked leave to amend his notice of set-off, and to add a claim for the pasturing of a certain horse. It was adpitted that there was no price fixed for the pasturing. Before that the court had permitted the defendant to introduce evidence of other set-offs not specified in the notice, and, when the question was raised as to the value of this pasturing, the court stated to counsel that, the damages being unliquidated, as there appeared to be no agreement as to what should be paid, it would be in the nature of recoupment rather than set-off, and the amendment would not, therefore, be permitted at that stage of the proceeding. We think this was a matter entirely within the discretion of the trial court. Deline v. Insurance Co., 70 Mich. 435; Randall v. Baird, 66 Mich. 315. We think there was no such abuse of discretion as would warrant us in setting aside the judgment for that reason.

These claimed errors constitute the principal grounds of complaint which are made here, and upon which counsel asks a reversal of the case. We have, however, examined the other questions, but find no error.

The judgment is affirmed.

The other Justices concurred.


text:
    FRIYER v. McNAUGHTON.
    1. Execution — Abandonment op Levy — Second "Writ.
    A levy under execution which is within 2 How. Stat. § 7685, forbidding the sale on execution of a growing crop until it ripens, at®’extending the life of the execution until such time, is not abandoned by the mere delivery of the writ, indorsed with the levy by the officer, to the justice who issued it, and the issuance of a second execution; especially where the acts attending the issuance of the second writ show an intention to retain the benefits of the original levy.
    2. Same — Growing Crops — Notice op Levy.
    The further provision of said section that the officer making such levy shall file a notice thereof in the.office of the clerk of the township where such crops are at the time of the levy, and that such notice shall be constructive evidence of the interest of the plaintiff in the execution, is for the benefit of third persons, and a failure to file such notice does not, as between the parties, operate to limit the life of the execution to the return day thereof.
    3. Same — Validity op Second Writ.
    A second execution cannot issue where there is an existing levy undischarged.
    4. Same — Authority op Justice op the Peace.
    Under 2 How. Stat. § 6975, a justice of the peace has no authority to issue a second execution until the first writ has been returned unsatisfied, in whole or in part.
    Error to Ottawa; Padgham, J.
    Submitted June 9, 1896.
    Decided June 30, 1896.
    Replevin by Kasper Friyer against Edwin J. McNaughton. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Walter I. Lillie (Stephen JET. Clink, of counsel), for. appellant.

      George A. Farr (Gerrit J. Diekema, of counsel), for appellee. .
   Hooker, J.

Mead was the owner of certain personal property, including the horse in question, and some wheat, upon which property he gave a chattel mortgage to Watson. Subsequently, McNaughton, the defendant, levied an execution upon this and other horses belonging to Mead, and sold them upon the execution. The property was sold to Mead’s wife, who did not pay for it, but mortgaged the property to McNaughton for the price, and took possession. Watson subsequently took the property by replevin, and, after giving the requisite notice, the property was sold upon the mortgage, being bid in by Watson, who then sold the horse in controversy to Fri-yer, the plaintiff. McNaughton took the horse upon his mortgage given by Mrs. Mead, and Friyer replevied it in this action.

The record raises two important questions:

1. Is the defendant in a situation to deny the validity of Watson’s mortgage?
2. Was his levy and sale on execution valid ?

If Watson’s mortgage was valid, the levy should have been made subject to the mortgage. The question of the validity of Watson’s mortgage could not be raised by Mead were he a party, and this mortgage is equally conclusive against the defendant unless he can show an otherwise valid levy. This brings us to an investigation of the proceedings upon the execution.

On December 5, 1891, an execution was issued by a justice of the peace upon a judgment for $113 and costs against Mead, and in favor of McNaughton, returnable in 60 days. The justice’s docket shows the following.entry:

“ February 5, 1892.
“Execution returned with the following indorsement: ‘December 5, 1891. Levied on section 22, town 8, range 14 west, north \ of southwest £, 5 acres of wheat joining Daniel W. Scott on the west, 5 acres of wheat joining railroad on north side, on the farm occupied by' George Mead; also levied on 470 stacks of corn and 47 bunches of corn stalks, a share of which belongs to George Mead, being on the place known as the “Wash-burn Farm,” in township of Wright.
“‘Paul R. Averill,
“ ‘Deputy Sheriff.
“ ‘The above corn and stalks replevied as the property of the Lawton estate. Replevin returned, and property found to be in the Lawton estate.
“‘Paul R. Averill,
“ ‘ Deputy Sheriff.’-
“ John V. B. Goodrich,
“ Justice of the Peace.
“March 10, 1892. Second execution issued at the request of James Cilley, Esq., plaintiff’s attorney, returnable in 60 days.
“John V. B. Goodrich,
“Justice of the Peace.”

This alleged indorsement is an exact copy of the writing, and all of the writing, upon the execution. On March 10th another execution was issued. There was nothing on its face to show that it was an alias, or that it was not the first execution issued upon the judgment, but the same deputy sheriff who had the first execution wrote upon it the following:

‘‘ Alias Execution. The following indorsement on execution No. 1.”

Here followed, under date of December 5, 1891, an exact copy of the indorsement upon the former execution. Underneath this was the recital of a levy upon six horses under date of March 12, 1892, and the selection of two by Mead as exempt, and the subsequent sale of the other four, for $110, to Mrs. Mead.

It must now be determined which of the two executions was in force at the time of the levy upon the horses. Had the first been returned nulla bona, there would have been no obstacle to the second; and possibly, had it been indorsed with a return that clearly showed a release of the levy upon the grain, the same would be true. But it was not. In fact, there was no written evidence showing an intention to abandon the levy or to surrender the execution; and, if it is to be treated as abandoned, it must be by reason of the officer’s delivery of the writ to the justice, and the subsequent issue of a second execution.

How. Stat. § 7685, points out the practice where growing crops are levied upon. We attach no importance to the failure to file notice of the levy, as that is a provision for the benefit of third parties. The statute, however, prohibits sale until the crop ripens, and extends the life of the execution until such time. The officer, having levied, may, p_erhaps, abandon his levy; but it may be doubted if a mere delivery to the justice of the execution, with the levy indorsed, is such abandonment. If the case were in a court of record, we have little doubt that a writ of venditione exponas would issue, upon application of the plaintiff, requiring the officer to proceed with the sale, under such circumstances as these; and we s.ee nothing to forbid the officer making such sale in this case, and indorsing a final return later, though the execution was in the hands of the justice.

The fact that a second execution is taken out is not conclusive evidence of an abandonment, and, where the first is not returned before the second issues, it has been said “to indicate mistaken zeal in attempting to obtain satisfaction, rather more than a desire to permit the first writ to become dormant, or to abandon any advantage gained by it.” West v. St. John, 63 Iowa, 287; Menge v. Wiley, 100 Pa. St. 617. It is undeniable, however, that the issue of a second execution may be evidence tending to show an abandonment, but it is not usually conclusive (though it has been held so in Scott v. Hill, 2 Murph. 143); but it is not indisputable evidence of abandonment, and may be overcome by testimony showing the contrary. Alley v. Carroll, 3 Sneed, 110; Dawson v. Daniel, 2 Flip. 309. As stated in the latter case:

“To constitute an abandonment.of a right secured, there must be a clear, unequivocal, and decisive act of the party, — an act done which shows a determination in the individual not to have a benefit which is designed for him.”

In the case before us, the acts attending the issue of the second writ show an intention to retain the benefit of the original levy, and at the same time get the benefit of a new levy, upon other property, which probably could not have been made under the first execution after the return day. But, if the original levy was still valid, the second writ was void, by reason of the rule that a second execution cannot issue where there is an existing levy undischarged. In 1 Freeman on Executions (section 49), this doctrine is enunciated, and authorities cited. The author says, in section 50:

“If a writ has been issued, and its execution commenced, it must first be completed before a new writ can issue. This rule applies equally whether the old writ has been returned or not.”

But, further, the only authority of a justice of the peace to issue executions is statutory. Section 6975, 2 How. Stat., authorizes a further execution when the first is.returned unsatisfied, in whole or in part. See Bigalow v. Barre, 30 Mich. 1. The first was not returned unsatisfied in whole or in part, and there was no authority for the issue of the second writ, and all proceedings under it were therefore void. This leaves the defendant with no foundation for his claim of title or possession.

It is unnecessary to discuss the numerous other questions raised.

The judgment is affirmed.

Long, C. J., Montgomery and Moore, JJ., concurred. "Grant, J., did not sit.


text:
    DENSMORE v. SAVAGE.
    1. Mortgages — Equitable Assignment. .
    The right of a mortgagee may be transferred either by a legal or an equitable assignment.
    '3. Same — Right of Assignee to Sue in His Own Name.
    An executor who, in the lifetime of his decedent, took an equitable assignment of a mortgage owned by the latter, may file a bill in his own name to have the mortgage revived, where, under a mistake of fact as to the existence of another lien on the property, the mortgage was discharged, and replaced by another mortgage, which was recorded subsequent to such lien.
    3. Equity Pleading — Multifariousness.
    A bill is not rendered multifarious by the fact that different kinds of specific relief are asked in relation to the same subject-matter, against the same parties, and in favor of the same persons.
    Appeal from Antrim; Corbett, J.
    Submitted June 10, 1896.
    Decided June 30, 1896.
    Bill by Francis E. Densmore against Fanny J. and Eugene R. Savage and Milton F., Clark C., and Harry Gr. White, to revive and foreclose a mortgage. From a decree dismissing the bill on demurrer, complainant appeals.
    Reversed.

      Lawton T. Hemans (John M. Corbin, of counsel), for complainant.

      Nelson C. Weter, for defendants White.
   Moore, J.

Complainant filed a bill, in which he alleged that in 1892 Fanny J. Savage made a real-estate .mortgage to the- father of complainant for $3,000, to secure a note made by herself and Eugene R. Savage, which mortgage was properly executed and recorded; that on January 11, 1895, the other defendants sued out a writ of attachment against the goods and chattels of Fanny J. Savage, and upon the same day caused a levy ' to be made upon the same lands described in the foregoing mortgage. The bill also alleges that on March 22, 1895, complainant’s' father had been in declining health, and' was unable to attend to or care for his business affairs; that he had made a final disposition of his estate by will, in which he bequeathed the mortgage herein and other mortgages to complainant; that he had informed complainant of this disposition of this mortgage. The bill also alleges that complainant and his father regarded the amount due on the mortgage, March 22, 1895, as being in excess of the value of the mortgaged premises, and that an arrangement was made between complainant, his father, and Fanny J. Savage by which Fanny J. Savage made a new mortgage running to the complainant, which was to take the place of the mortgage made in 1892, for which mortgage the father of complainant made a discharge. The discharge and new mortgage were neither of them to have any force or effect, or to be put upon record, in case any change of the title of the premises or any lien or incumbrance had been put upon them since the mortgage of 1892 was made. The bill further alleges that the papers were forwarded to the register of deeds with instructions to examine the records, and, if no change had been made to the title of the premises, nor any liens or incumbrances put upon them, to record the discharge and the new mortgage. The bill alleges that when the new mortgage was made neither the complainant nor his father had any knowledge of the lien claimed by defendants White, White, and White, and that an examination of the records by the register of deeds, March 29th, did not show any change in the title to the premises, and that the discharge of the mortgage and the new mortgage were then put upon record. The bill further alleges that, at the time of this examination by the register of deeds, no certified copy of the writ of attachment was in the register’s office, and that it was after-wards fraudulently transferred from the office of the county clerk to the office of the register of deeds, and the record was fraudulently made so as to show the record, of attachment to be of a date prior to the recording of complainant’s mortgage. There are. other allegations in. the bill, which it will not be necessary to state here further than to say it is alleged that the father of complainant afterwards died, leaving a last will and testament, bequeathing to the complainant this and other mortgages in question, which will was probated, and that all of said defendants claim to have interests in the premises. The complainant asked that the discharge of the mortgage executed by Fanny J. Savage to his father be set aside, and the mortgage be revived, and be assigned to complainant, and asked for a foreclosure of the mortgage, and also prayed that, if this relief could not be granted, the attachment levy be held to be subsequent and subject to the mortgage lien of the last-mentioned mortgage. There was also, attached a general prayer for relief.

The defendants Savage and Savage answered, admitting the material things stated in the bill of complaint, but denied any knowledge of the attachment proceedings; denied any indebtedness by either of them to White, White, and White; and admitted, substantially, that complainant was entitled to relief as prayed for. The defendants White, White, and White demurred to the bill on the grounds: First, that it does not state a cause of action; and, second, because it is multifarious. The circuit judge sustained the demurrer and dismissed the bill.

The appellees insist that the bill of complaint should have been filed by the complainant as executor, and not as an individual, and cite a great many cases in support of that contention. This view was accepted by the circuit judge. We think a careful inspection of the allegations of the bill shows that the result of the acts of Mrs. Savage, the complainant, and his father, in March, 1895, taken in connection with the will, and the information that the father had imparted to the son prior thereto and at that time, operated as an equitable assignment by the father to his son of the mortgage of 1892, and that he properly filed this bill, not as an executor, but as an individual. It has been repeatedly held that the right of a mortgagee may be transferred either by a legal or an equitable assignment, and either will suffice. Niles v. Ransford, 1 Mich. 338; Hoffman v. Harrington, 33 Mich. 394. Mortgages may be transferred without writing. Nims v. Sherman, 43 Mich. 45.

It follows that, if the mortgage was equitably assigned to complainant, he is entitled to maintain his bill, unless it ought to be dismissed upon the ground that it is multifarious. It has been held that because the prayer of a bill in chancery asks for different lands of specific relief in relation to the same subject-matter, against the same parties, and in favor of the same persons, it does not make the bill multifarious. Cleland v. Casgrain, 92 Mich. 139. “The substance of the rules on the subject appears to be that each case is to be governed by its own circumstances, and must be left in a great measure to the sound discretion of the court. ” Daniell, Ch. Pl. & Prac. 334, note 2; Torrent v. Hamilton, 95 Mich. 159. We do not think the bill multifarious, and the cause is remanded, with leave to defendants to answer over.

The decree of the court below is reversed, with costs to complainant against defendants White, White, and White.

Long, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.


text:
    DROVERS’ NATIONAL BANK v. BLUE.
    1. Justices of the Peace — Trial—Certiorari.
    Where the parties to an action in justice’s court, after the - disagreement and discharge of the jury, submit the case to the justice upon the proofs taken at the trial, stipulating that all questions raised upon the trial shall be saved to the ' parties, an objection to the exclusion of testimony is available on certiorari.

      2. Bills and Notes — Bona Fide Holder — Burden of Proof.
    Where, in an action upon a promissory note brought by a transferee thereof, there is proof of fraud in the inception of the instrument, the burden of showing a bona fide purchase is upon the plaintiff; but if the plaintiff, at the outset, makes aprima facie case of bona fide holding, it is not error to exclude evidence of such fraud until such prima facie case has been attacked by evidence raising a question of fact * in relation thereto.
    3. Same — Banks and Banking — Notice.
    A bank which discounts a note for a customer, crediting the proceeds thereof to his account, is not a bona fide purchaser for value, unless such credit was drawn upon before the maturity of the note, and before notice of facts invalidating it in the hands of the payee.
    Error to .Wexford; Aldricb, J.
    Submitted June 10, 1896.
    Decided June 30, 1896.

      Assumpsit by the Drovers’ National Bank against George W. Blue on a promissory note. A justice’s judgment was reversed on certiorari in the circuit court, and plaintiff brings error.
    Affirmed.

      H. M. Dunham, for appellant.

      Satoyer & Bishop, for appellee.
   Hooker, J.

The plaintiff commenced this action in justice’s court, and obtained judgment, which was reversed by the circuit court upon certiorari. It is here upon writ of error.

The case was first tried by a jury, the result being a disagreement. After the discharge of the jury, the parties stipulated in writing that the case might be decided by the justice upon the proofs taken upon the trial, all questions raised upon such trial to be saved to the respective parties, the same as though the proceedings upon such trial had been repeated before the justice. The stipulation takes the case out from the rule laid down in the case of Hollenburg v. Shuffert, 47 Mich. 126.

The action was upon a promissory note executed and delivered by the defendant to the Chicago Supply Company, an Illinois corporation. The plaintiff offered in evidence the note (the execution being admitted), and produced testimony to the effect that it purchased the note before maturity from the Chicago Supply Company in good faith, paying $70 therefor, by crediting the same upon the bank book of said company, which did banking with the plaintiff. The defendant thereupon offered to show that the note was procured through the fraud of the Chicago Supply Company, but this proof was excluded, on the ground that it must first be shown that the plaintiff was not a bona fide purchaser. Had the plaintiff merely introduced the note, with proof of ownership and amount due, and rested, the testimony offered would have been admissible, under the rule that the burden of showing bona fides is upon the plaintiff when there is testimony showing fraud in the inception of the note. Little v. Mills, 98 Mich. 423; Rice v. Rankans, 101 Mich. 385. But in this case the plaintiff attempted to show a bona fide holding; and it is manifest that, if it made out a. prima facie case of such holding, no amount of evidence of fraud in the inception of the note would be of any avail, until such prima, facie case should be attacked by evidence raising a question of fact in relation thereto. And in such case it would be within the discretion of a court to require such evidence before listening to evidence upon the subject of the inception of the note. If, however, the plaintiff did not make out a prima facie case of such bona fide holding, proof of fraud by the payee in procuring the note would have been a complete defense, until the plaintiff should show a bona fide purchase.

The testimony shows that no money or valuable thing passed at the time of the purchase. A mere credit was given by the bank for the note, — a promise to pay, in other words; and there is nothing to show that this credit was ever drawn upon, or that the account of which it became a part was exhausted, before the maturity of the note, or before notice of the fraud. This did not show the bank to be a purchaser for value, within the rule. 1 Daniel, Neg. Inst. § 7795, and cases cited, viz.: Dresser v. Construction Co., 93 U. S. 92; Dougherty v. Bank, 93 Pa. St. 227 (39 Am. Rep. 750); Lancaster Co. Nat. Bank v. Huver, 114 Pa. St. 216; Mann v. Bank, 30 Kan. 412; Fox v. Bank, 30 Kan. 444. The testimony offered was therefore erroneously excluded, and the circuit court was right in reversing the judgment of the justice.

The judgment is affirmed.

The other Justices concurred,