text:
    Harvey Dewey v. The City of Detroit.

      City of Detroit, liability of , for .injuries resulting from defective sidewalks. Under the charter of the city of Detroit all repairs of sidewalks are required to be made under the supervision of the street commissioners in their respective districts, and under the direction of the common council. The charter further provides that one or more commissioners may be appointed for the city.
    In an action against the city for damages resulting from a defective sidewalk, it was held that the commissioner may in such matters be fairly regarded as representing the corporation. If a defect is found which he ought to have known, and which he has failed to repair within such reasonable time after such knowledge may be presumed to have reached him as, under the circumstances, was sufficient to provide for such repairing, then the city would be liable, but not otherwise.
    The extent of the duty resting upon the city depends upon the means provided for its performance; and while responsible for neglect where reasonable diligence has not been exercised, it is not responsible where it is not reasonably capable of acting efficiently by its proper agencies.

      Municipal Corporation: Dower of determining number of officers, discretionanj. The discretionary power under the charter of determining how many officers are required for certain duties, is one of a legislative character, which can neither be reviewed, nor made the basis of an action against the city. The number fixed must be assumed to be all that were needed for the proper care of the interests entrusted to them.

      Heard April 10th.

      Decided April 16th.

    Error to Wayne Circuit.
    This was an action of trespass on the case brought by plaintiff in error for damages, alleged to have been sustained from injuries received by defects in one of the sidewalks of the city of Detroit.
    The only question involved is whether the circuit judge charged the jury properly, with reference to the rule concerning the negligence which would charge the city for the accident.
    The facts and charges of the court are stated in the opinion. Judgment was rendered in favor of the city.

      Ward and Palmer, for plaintiff in error.
    ' 1. The city of Detroit has full control over the construction and repairs of the streets and sidewalks within the city limits, to the exclusion of all individual action in the matter, and the power to levy and enforce the collection of taxes to defray the expense thereof. The power being given, the duty to execute it follows; and for neglect in that behalf the city is liable.— City Charter, pp. 30-40 and 41; 9 Mich. 165; 39 Barb. 330; 1 IKY. 105.
    The city being liable for neglect, and the defect in the sidewalk not disputed, the only question raised on the trial, and reserved for the consideration of this court is, whether the defect was of such a nature that the city is liable for its existence or continuance.
    The court charged the jury in substance, that the city would not be liable unless they had notice of the defect; that if any city officer had actual notice of the defect, or if it was of long standing and so open and palpable as to be apparent and necessarily attract the attention of passers by, that notice might be inferred, and the city would be liable.
    Two classes of defects may exist — one arising from the improper construction of the way, or neglect in taking care of it and making necessary repairs — and the other from accident or from agencies not under the control of the party liable to maintain and keep the way in a proper condition.
    When a flood washes away a bridge or other part of a highway or a tornado blows trees across it, or individuals place obstructions in it or make unauthorized excavations, the city, town, or county can not be considered in fault until they have had notice of the defect, or time by reasonable diligence to find it out and repair the injury.— 35 N~. PC. 74, 52; 40 Id. 410; 41 Id. 135; 43 Id. 265; 27 Conn. 293; 13 Pich. 94.
    But when the way' gets out of repair, from defective construction, or from ordinary use or wear and decay of the same, or from causes constantly existing and apparent, then the defect arises from culpable inattention to duty, and no notice is necessary to establish the neglect.— 39 Barb. 330; 2 Milton, 440.
    In this case no proper drains were constructed under the walk to conduct away the water from the lots adjoining it — and so defective was it in this respect, as shown by the witness, Lacroix, that the walk was frequently afloat on the water accumulating under it, and moved up and down as people walked over it, so as to cause the planks to work loose, and at the point of the accident where a small drain was dug under it from the penstock, it was covered with an oak plank, a kind of timber most liable to warp and twist, and draw out the nails with which it was fastened from the effect of being constantly soaked on the under side and exposed to the sun on the top.
    The rule of law laid down by the court though the same as enunciated in three or four exceptional cases, (see 36 Barb. 226, which is in effect overruled in 39 Barb. p. 329; 5 Bosw. p. 497, where one of the judges dissented,) is not based on any recognized principle of law, and does not accord with the general current of decisions.
    Paid agents must in all cases exercise care and diligence in the discharge of their duties.
    The city of Detroit, for a consideration, that is the grant of power contained in its charter, undertakes to construct and maintain in proper condition its' public ways, and imposes the expense of doing it on the public, as also the expense of paying two officers, the street commissioner and overseer of highways, for taking charge of them and seeing that all necessary repairs are made. The law, as laid down by the court, would relieve those officers as well as the city which is responsible for them, of all diligence in the matter. They can wait until some indifferent person assumes the duty of bringing notice to them, or if no person chooses to take that trouble, then until the want of repair becomes so notorious that they ought to hear of it from common report. — 16 IF. Y~. 161.
    Neither, in cases where notice to the corporation is required, is it necessary that it should be brought home to a city officer. It is enough if it is known to inhabitants of the town or city, and has often been so held under statutes requiring it to be given.— 7 Me. 442; 32 Id. 271; 40 Id. 176; 1 Mass. 153.
    2. The question of negligence and whether the defect arose from the imperfect construction of the walk, or from causes which were apparent and might easily have been seen and guarded against, and if not, whether it was such that the city officers might Avith reasonable diligence have found it out and repaired it, should have been left to the jury instead of being virtually withdrawn from their consideration, as was done by the court.— 35 IF. H. 74; 40 Id. 410; 41 Id. 135; 13 Pick. 94.
    The matter of diligence or neglect in such cases can not be reduced to a rule of law, as too great a diversity of circumstances exists in each case to permit it. A walk which would be' sufficient in a remote part of the city, would be wholly unfit and unsuitable to be built in a central and frequented part.
    And in proportion as the walk is central and much used, would the facilities be increased of finding out and repairing its defects. So that what might be diligence in one case would be gross neglect in the other.

      Wm. Gray, for defendant in error.
    1. The testimony was properly excluded. The state of the sideAvalk three months after the accident was immaterial. It could have no tendency to show its condition at the time of the injury for the alleged defect — a loose plank might happen any day. The evidence showed it Avas frequently taken up and nailed down again. All evidence as to the condition of the walk at and about the time of the accident was received. The evidence offered could only be intended to prejudice defendants, by claiming subsequent negligence, which was immaterial. It would be as competent to show defective walks in other parts of the city. The farthest that the cases go, is that the admission or rejection of such evidence was in the discretion of the court, and the ruling will not be reviewed.— 43 JST. H. 366;" 7 Gray, 92; 11 Wis. 160, 175.
    Error will not lie as to any matter addressed to the discretion of the court. —12 Mich. 449, 368.
    2. There was no proof that the defect, if any, was caused by persons in the employ of the defendants.
    It would be error to give a charge, there being no evidence on which to found it. — 5 Mich. 368, 380.
    The other charges, asked by plaintiff, were given.
    The charge of the court was correct.
    The court did, in effect, charge that if any city officer had notice, or if the defect was of such character or long continuance as to naturally or necessarily attract the attention of passers by, notice might be presumed.
    This is in strict accordance with adjudicated cases.— 36 Barb. 226; 5 Bosw. 497; 5 Selden, 456.
    In determining whether there was error or not, the court will look at the entire charge, and say how the jury must have understood it. — 3 Mich. 55; 13 Id. 70.
   Campbell J.

Plaintiff sued the City of Detroit for personal damages, caused by his being tripped up by a loose board in a sidewalk. The injury is said to have occurred by reason of the plank being raised suddenly by a person' stepping upon an end of it, so that Dewey, when passing, caught his foot under it as it was so raised, and was thrown down. The only question presented for review is, whether the circuit judge laid down a proper rule concerning the negligence which would charge the City for the accident. The charge was as follows: “That the City would be liable if they had notice of the defect; that actual notice need not be shown, but might be presumed or inferred, if the defect was open and notorious, or of long standing, and of such a character as would naturally arrest the attention of persons passing it. If the jury found that any city ^officer had actual notice of the defect, or that it was of such a character that notice might be inferred, the city would be liable, unless it should appear that the plaintiff was himself negligent, and by his own neglect contributed to the accident.” In answer to a special request, the court charged “That in the absence of proof of express notice to the defendant of the defect which was the alleged cause of the injuries received by the plaintiff, the plaintiff can. not recover unless the jury finds that such defect was so open and palpable as to be apparent, and necessarily attract the attention of passers by.”

This action is based upon a supposed neglect of duty to repair defects in the city sidewalks. How far this duty lies upon the city depends of course upon its charter, and upon the means provided by that charter to enable it to perform this duty. It can not be liable for neglect, in any case where it is not reasonably capable of acting efficiently; and, on the other hand, it is responsible for reasonable diligence in the performance of any duty which it is capable of performing, so far as the means in its power will enable it to act.

Under the • charter all repairs of sidewalks are required to be made under the supervision of the street commissioners in their respective districts, and under the direction of the Common Council. — Charter, Chap. 4, § 16. There may be one or more commissioners for the city. — Chap. 2, § 2. The nature of their duties would preclude the appointment of any considerable number of these officers, as their functions in supervising various improvements must of necessity give them jurisdiction over different wards, and the ward overseers are subject to their oversight, and must act under their direction — Chap. 2, § 17. It appears from the case that one commissioner is appointed over the entire eastern part of the city, from Woodward Avenue to its eastern limits, except a portion of the Second Ward.

It is very well settled that the discretionary power of determining how many officers are required is one of a legislative character, which can neither be reviewed nor made the basis of complaint against the city. — Griffin v. Mayor of A I 9 A Y. Bop. 456. It must be assumed that there were adequate reasons for fixing the number adopted. And any rule which would hold this officer, and the city through him, for neglect, must have respect to such facilities as he may be fairly supposed to possess, to inform himself of defects in the walks, and to attend to their repair.

It is clear that he can only get knowledge from his own observation, or from information laid before him; and that neither he nor any one else can be expected to ascertain without information the existence of defects which are not apparent to every ordinary observer. The walks in a city of the size of Detroit cover many scores, and probably several hundreds of miles, and unless an injury is such as to be very readily noticed, it would be altogether unlikely to attract attention, or to be reported to him by private parties. ■ That minute daily inspection which is possible and necessary on a line of railroad, where a small break may endanger hundreds of lives, would be absurd and impracticable in relation to sidewalks. A city, responsible as it must be only for the neglect of duties incumbent on its agents, can not be distinguished in its liabilities from individuals who might be entrusted with the same kind of duties. In this case the commissioner may be fairly regarded as representing the corporation. If a defect is found which he ought to have known, and which he has failed to repair within such reasonable time after such knowledge may be presumed to have reached him as under all the circumstances was sufficient to provide for such repairing, then there is a good cause of action, but not otherwise.

The ruling of the court below went far enough to hold the city responsible for any defect which was known to any city officer whatever, whether connected with the street department or not, or which was generally known, or which was apparent to ordinary observers. It would be assuming too much to suppose the city authorities can be in fault for being ignorant of what they could not learn in one of these ways; and to hold them further, we must expect them to possess some faculties in their corporate nature which are denied to natural persons. The charge was sufficiently liberal to the plaintiff, and the judgment- should be affirmed with- costs.

Cooley J. and Martin Ch. J. concurred.

Christiancy J. did not sit in this case.


source: Caselaw Access Project

license: Public Domain

text:
    Jerome B. Corey v. Oliver D. Hiliker.

      Notices; When Sunday to be included in computation. In notices required by the rules of court, when Sunday is an intervening day, it is to be included in computing the time.

      Heard and decided April 20th.

    Motion to strike from the docket.

      M. D¡. Orofoot, for the motion.

      C. Draper, contra.
   This was a motion to strike from the docket for want of prosecution.

It was resisted on the ground that four days notice of the hearing had not been given, according to the rules, one of the intervening days being Sunday. Notice of the motion was served on Saturday, March 30th, 1867, and the hearing was for Wednesday, April 3d, 1867. It was held that Sunday being an intervening day it was to be included in the computation, and that it was properly counted as a day. The notice, was held to be sufficient.


text:
    The People ex rel. Joshua E. Dickinson v. Thomas L. Sackett.

      Quo Warranto: Pleadings, on suggestion of damages. The statute having established the form of pleadings on a suggestion of damages in quo warranto, the Supreme* Court will not prescribe any other.

      Heard April 16th.

      Decided April 20th.

    Suggestion for damages in quo warranto.

      G-. V. N. Loihrop, for relator.

      Maynard and Meddaugh, for respondent.
   In this case, an information in the nature of quo warranto had been previously filed by the Attorney General on the relation of Dickinson against Sackett, for the purpose of obtaining possession of the office of Register of Deeds of Macomb county. Judgment was rendered by this court — 14 Mioh. 821 — that said relator was entitled to the office.

The relator in this proceeding filed a suggestion of damages under the statute — 2 Comp. L. §5297 — against Sackett for the detention of the said office, and asked that the court frame special issues, to be tried by the jury in the. Macomb Circuit.

The court held that the statute having established the form of pleadings in such cases, they would not prescribe a different form; and that the case must go down for trial upon the statutory issue.


author: Cooley J.

text:
    David Robinson v. Rowland Cromelein and others.

      Answer to bill in chancery, when responsive. Where a bill to foreclose a mortgage alleged it to have been given in consideration of an actual indebtedness, to an amount named, which it was stated remained unpaid, and called for an answer under oath, an answer purporting to set forth the real circumstances under which the mortgage was given, and showing it to have been in part for money advanced, and in part for property at a valuation, which the party had failed to convey according to agreement, was held to be responsive, inasmuch as it explained the whole transaction out of which the mortgage originated, and upon which its validity depended.

      Agreement to convey specific lot, performance of. Where’ a contract to convey a number of lots of land at a gross sum, gave the grantee an option to select others in lieu thereof, to be laid out on certain streets not then platted, the grantor had no right to compel the acceptance of any undesignated lots, except such as the grantee should choose, and a deed, embracing some designated and some not designated, which the grantee refused to receive, was held no performance, but entirely void as against the latter, as the price could not be apportioned.
    And the grantor had no right to debar the grantee from such selection, by so platting his new lots as not to conform in size with the lots designated.
    Mortgage, when semHty for advances. When a mortgage is given for an amount exceeding what is advanced, it is valid in the hands of the mortgagee, and those standing in no better light, only to the extent of the real advances.

      Beard April 16th, 17th and 20th.

      Decided April 23d.

    Appeal in Chancery from Wayne Circuit.
    This case was heard on bill and answer.
    The bill was filed to foreclose a mortgage on certain real estate in Detroit, given to secure the payment of $5,500. Defendants answered in substance denying said indebtedness, and setting up that the consideration of said bond and mortgage consisted in part of a proposed loan of $3,000, and the purchase of certain lots in Pittsburg; that a pbrtion' only of the said $8,000 was advanced, and that the contract as to the lots was unperformed.
    A decree was made in the court below in favor of complainant dismissing the cross-bill, and allowing the money actually paid. The agreement to convey the said real estate was also rescinded.
    The facts and the pleadings are sufficiently stated in the opinion.

      J. P. Whittemore, for complainant.

      George S. Sand and George A. Wilcox, for defendants.
   Cooley J.

The bill in this case was filed to foreclose a mortgage of $5,500, given by the defendants, Rowland and Amelia Cromelien, to one William F. Willock. The bill averred that the defendants, on or about the 15th day of February, 1856, became and were justly indebted to said Willock in the sum of $5,500, and being so indebted, in order to secure the payment thereof, with interest, executed and delivered to Willock the bond and mortgage now in suit, which Willock afterwards, on February 18, 1856, assigned for a valuable consideration to complainant. The bill called for an answer on oath, and the Cromeleins answered, denying that at the time mentioned, or at any other time, they were indebted to Willock, and setting forth substantially the following as the circumstances attending the giving of the bond and mortgage, and the consideration therefor.

That said defendants having occasion to procure a loan of money for business purposes, Willock, who was a broker in Pittsburg, Penn., proposed to procure it for them, and informed them that if they would purchase fourteen lots of land, say of twenty feet front and about one hundred and ten feet deep, situate in the city of Alleghany, then known as Benvilla, at the gross sum of $2,500, they should have a loan of $3,000, securing the whole sum of $5,500, on certain lands in Detroit; that Willoek, in making this proposition, was acting for one Thompson Bell, of Pittsburg, who was to furnish the money and the lands; that defendants entertaining this proposal favorably, Rowland Cromelein and said Willoek went to Bell’s office together, where a rough plat of Benvilla was produced by Bell, and an arrangement agreed upon by which Bell was to loan defendants the $3,000, and deed to said Amelia Cromelein the fourteen lots of land, with fronts of twenty feet, and one hundred and ten feet or thereabouts in depth, and the defendants were to give their bond for $5,500, with mortgage on the Detroit lands, payable in two years, with six per cent, interest; that the snow was then lying upon the ground, and the fourteen lots in Benvilla were not selected, but Bell stated that he was about to make a new plat, which Avould exhibit the lots more fully, and as soon as the melting of the snow would permit, said Rowland should have the privilege of selecting from the new plat such fourteen lots then (at the time of the making of the contract) unsold as he should prefer, and Bell should convey a good title thereto to said Amelia; that the bond and mortgage were executed by defendants to Willoek, at Bell’s suggestion; that Bell then paid $1,500 of the $3,000 agreed to be loaned them, but under various pretexts postponed paying the remainder, but did afterwards pay, in all, $950 more, making $2,450 in all; that Bell furnished no new plat of Benvilla until December 6, 1856, when said Rowland received one from him by mail, with red lines drawn round certain portions, and the word “ sold ” written thereon; that on February 17, 1857, said Rowland wrote Bell, apprising him of the selection of fourteen of the lots not marked sold on the plat, and requesting Bell to send a deed therefor to said Amelia; that three of these lots were on Federal street, four on Bell avenue, and seven on Willis' street, the numbers being particularly given in the answer; that on February 21, 1857, defendants received by mail a deed from Bell to said Amelia, covering the three lots on Federal street, and also eleven other lots on Willis street, none of which had been selected by defendants,, whereupon said Rowland, without delay, notified Bell that the deed did not cover the lots selected, and requesting and demanding that he convey those chosen, which Bell refused to do, assigning as a reason that he had sold and disposed of a portion of them; that the defendants never accepted or recorded the deed from Bell, and that they have no other than a verbal contract from him for the conveyance of the fourteen lots, which can not be enforced against him.

The cause being put at issue upon this answer, Bell’s testimony was taken as the sole evidence in the case, except the answer. In all important particulars, it corresponds with the answer in its statement of facts, showing’ the original consideration of the bond and mortgage to be as stated by defendants, and that they were assigned by Willoek to complainant, at Bell’s request, and are now held and foreclosed in his interest. Bell, however, gives with his testimony what he says he believes is a copy of his agreement to convey the fourteen lots to Amelia Cromelein, and which is in writing, and as follows:

“ Pittsburg, February 18, 18S6.
“ I promise to convey to E. A. Willoek, or R. C. Cromelein, clear of all incumbrances, as soon as satisfactory information is received from Detroit about mortgage of $5,500, fourteen lots of twenty feet front by one hundred feet deep, part of the Benvilla plat, three lots fronting on Federal street, and eleven immediately back. I further promise, if said Willoek or Cromelein should prefer the same number of lots on Willis street, or on Bell avenue, as marked on plan, that he shall have his choice, about the 1st of April, or when the weather permits a proper examination.
“THOMPSON BELL.”

Bell testifies ■ that he afterwards performed this agreement, by conveying fourteen lots in pursuance of it, but he gives no explanation, and fails to specify what lots he conveyed.

The court below rendered decree in favor of complainant for the $2,450 and interest only, deducting a payment, and making certain allowances for taxes. Complainant appeals, claiming to be entitled to the whole amount of the bond and mortgage, less the payment made thereon, and that portion of the $3,000 which, it is conceded, the Cromeleins never received.

The only question on the appeal is, whether the court was right in making a deduction from the mortgage of the sum included therein, as the price of the fourteen lots in Benvilla.

Complainant’s position is, that the answer, in what it sets forth as to the consideration of the bond and mortgage, and the partial failure, was not responsive, and, therefore, not evidence. We have not been able to yield our assent to the argument on this point. The bill avers an indebtedness by defendants to Willock as the occasion upon which they gave these obligations, and calls upon them to answer on oath in respect thereto. They do answer specifically, denying any such indebtedness, and stating that the bond and mortgage were given for a consideration, a part of which was received at the time, and the remainder to be furnished afterwards, but which they have never received. The answer, if true,, shows that the mortgage was based on no consideration, and had no original validity, except to the extent of $2,450. We have no doubt this is proper evidence against complainant, and, as we have said, it is corroborated by Bell’s evidence, so far as that goes. It is claimed, however, that the deed from Bell was in compliance with his contract, or, if it were not, then defendants could only claim, by way of reduction, any difference between the value of the lots conveyed, and those purchased by him, and which should have been conveyed. We do not perceive how a man can be compelled, under such, a contract, to receive a conveyance of other lots than those he had bargained for; and as it is not disputed that the Cromeleins refused to accept the deed as a performance by Bell, we have only to see whether that deed can be regarded as in compliance with the contract.

Assuming the copy given by Bell to be correct, Mrs. Cromelein was to have the three lots on Federal street, and eleven immediately in the rear, with the privilege, however, of substituting others on Bell avenue and Willis street. Eleven others were selected, which Bell refused to convSy on the claim that a part of them had been sold to others. On the argument in this court it is claimed that he was justified in refusing because the lots so selected, though of the same front, were of greater depth than those in the rear of the Federal street lots. This excuse can not avail for two reasons: First, If the Cromeleins had failed to exercise their right to select other lots instead of those in the rear of the ones on Federal street, then, under the contract, the latter were to be conveyed, and Bell had no right to substitute others on Willis street as he did. There can be no pretence that under any circumstances he could have any right to select for the Cromeleins, as the contract itself fixed the lots they were to have unless they voluntarily substituted others. But, Second: The contract did not confine Cromelein’s choice to lots of a specified depth. When it was entered into, the lots on Willis street and Bell avenue wexe not yet laid out, and it was optional with Bell to fix the size to suit himself. The maps now produced show that when they came to be platted, a part of them wexe made of the same depth as those on Fedei’al stx-eet, and a part deepex-. Evex-y lot on Bell avenue is deeper than the Federal street lots; so that if complainant’s theory is correct, the Cromeleins were altogether debarred of selection on that street by the voluntax-y act of Bell in giving additional depth to his lots. We think this suggestion entirely an afterthought, especially as it does not appear that Bell based his action in conveying unseleeted lots to Mrs. Cromelein on any such ground. We also think the Cromeleins were justified in refusing to accept a deed which covered lots not embraced in the contract, but selected for them arbitrarily by Bell without even the semblance of authority.

We have not considered it important to discuss any question based upon a supposed difference between showing by the answer the original invalidity of the mortgage, in part or in whole, or showing by way of defense a subsequent failure of consideration; as the evidence in the present case proves clearly that the securities never had any force, as such, beyond the moneys advanced by Bell. Ladue v. Detroit and Milwaukee R. R. Co., 13 Mich. 380. We think the decree correct, and it should be affirmed, with costs of this court to the appellees.

Campbell J. and Martin Clj. J. concurred.

Christiancy J. did not sit in this case.


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    Lorenzo Tabor v. Addison P. Cook and others.

      Bill to quiet title: Tax title deed: Vacant lands: Bight to jury. The law of 1865, page 576, provides that “ any person claiming title to lands through the Auditor General’s deed, executed upon a sale thereof for non-payment of taxes, may file a bill in chancery to quiet his title thereto, without taking possession thereof,” etc.
    In a proceeding in chancery to quiet title by a person claiming through such a deed against one holding the premises under an adverse claimant, it was held—
    1. That the act of 1865 does not authorize such a proceeding against a defendant in possession — its purpose being to extend the remedy by bill in equity to cases where the land was vacant, and where, under the then existing law, the complainant could not file a bill without first taking possession.

      % That under the Constitution — Art. 6, §27 — the legislature could not authorize such a proceeding without providing a mode by which the defendant could have a jury trial, if he so elected, where the right existed when the Constitution was formed.

      Constmction of legislative acts. Courts will always construe a legislative act so as to give it effect as law, if it be practicable to do so. An intent to violate the Constitution is.not to be presumed in any case; and a construction which would have that effect is not to be adopted unless forced upon the court by the terms employed.

      Heard April 10th.

      Decided April 23d.
    Appeal in Chancery from Lenawee Circuit.
    This was a hill filed to quiet title to certain lands purchased by complainant at a tax sale.
    The defendants were in possession under an adverse claim.
    A demurrer was filed, and the bill was dismissed.

      Bachman & Tatem, for complainant.

      Howell & Bobinson, for defendants.
   Cooley J.

"We do not feel at liberty to consider the various questions which are discussed by the briefs in this cause, inasmuch as there is apparent- upon the face of the record a fatal objection to the jurisdiction.

The bill is filed to quiet the title of complainant to certain lands purchased by him at tax sales for the taxes of 1859, and which, he avers, are occupied by the defendant, Addison P. Cook, under an adverse claim. There is no law of the state which permits a bill to be filed for such a purpose against a claimant in possession, unless it be “An act to provide for the recovery of taxes paid on real estate by persons claiming title thereto in certain cases,” approved March 20, 1865 — haws of 1865, p. 576 — and. it appears to be under the supposed authority of this act that the present proceeding is taken.

We think the complainant has mistaken the intent of this statute. It provides that “Any person claiming title to lands under or through a conveyance executed by the Auditor General, upon a sale thereof for non-payment of taxes, may commence a suit in the circuit court in chancery of the county where such lands lie, to quiet his title thereto, without taking possession of such lands; and all parties who have, or claim to have, any interest in such lands, may he made defendants in said suits,” etc. Under the law as it stood before the passage of this act, no person could file a bill in equity to quiet the title to lands, unless he was in possession thereof — Gomp. L. § 3490 — and we do not discover in the provision above quoted an intention to extend this remedy except to the case of lands which are unoccupied. Although the terms employed in the act are very general, and authorize “any person” to file a bill, yet we can not shut our eyes to the prior law when endeavoring to arrive at the true construction of this; and as that law required the complainant to take possession before bringing suit, and this act authorizes any person to commence suit without taking possession, it would seem that the particular change designed to be made was, to dispense with the necessity of the complainant taking possession where the lands were vacant. If the other party was in possession, ample remedy at law existed before; and the legislature would not be likely to make so radical a change in the law as to authorize a bill in equity in the nature of an ejectment bill, against an adverse claimant in possession, without clearly expressing their intent so to do.

But if the act of 1865 would bear the construction which complainant puts upon it, there is a very conclusive reason why we could not adopt that construction if a different one were possible. It is not in ..the power of the' legislature, under our present Constitution, to provide for the trial of titles to land in equity, in the cases which were triable at law at the time the Constitution was adopted, unless it shall first make provision for having the case tried by jury if the defendant shall so elect. The Constitution — Art. 6, §27 — says that “The right of trial by jury shall remain; but shall be deemed to be waived in all civil cases, unless demanded by one of the parties, in such manner as shall be prescribed by law.” The intentioif here is plain: to preserve to parties the right to have their controversies tried by jury, in all cases where the right then existed — Work v. State, 2 Ohio N. S. 296; Norval v. Rice, 2 Wis. 22; Exline, v. Smith, 5 Cal. 112; Hughes v. Hughes, 4 Monr. 43 — and suitors can not constitutionally be deprived of this right except where, in civil cases, they voluntarily waive it by failing to demand it in some mode which the legislature shall prescribe.

The present is one of those cases where a right to a trial by jury existed when the constitution was formed; and this right must therefore “remain.” Whatever proceeding the legislature authorizes for the determination of adverse claims, the right of the party in possession to a jury trial must be kept in view, and some mode pointed out by which he can demand it. In civil cases at law, including ejectment suits, provision is made by statute and rule whereby either party may obtain a jury; but there is no such provision for cases in chancery, and it is only in special cases, where the court desires the verdict of a jury for its own guidance, that issues in chancery can go before a jury at all. A defendant in chancery, therefore, can not waive a jury by failing to demand it, because no mode is provided by which any such demand can be made; and a statute which should authorize a bill in the nature of an ejectment bill, without at the same time providing some means by which a jury could be had at the option of defendant, would be in palpable disregard of the provision of the Constitution which we have quoted.

The courts will always construe a legislative act so as to give it effect as law, if it be practicable to do so. An intent to violate the Constitution is not to be presumed in any case; and a construction which Avould have that effect is not to be adopted unless forced upon us by the terms employed. — Newland v. Marsh, 19 Ill. 384; Dow v. Norris, 4 N. H. 17; Clarke v. Rochester, 24 Barb. 471. We do not discover in this statute a clear intent to give a remedy in chancery in cases where the defeii&ant was entitled to a jury trial at the common law; and as an act to that effect, without provision for a jury at the option of defendant, would be unconstitutional, it is our duty, under the principle stated, to hold the act applicable only to those cases where the defendant is not in possession.

As, therefore, the suit was not maintainable, whether the tax title was valid or not, the decree of the court below must be affirmed.

Campbell J. and Martin Ch. J. concurred.

Christiancy J. did not sit in this case.


text:
    The People ex rel. Gurdon O. Williams v. Edward V. Cicott.

      Quo Warranto: Change of Venue. In quo warranto cases the statute being silent as to the place of trial of issues of fact involved therein, the Supreme Court will not send any such case for trial to a court other than that where the election took place, without the same showing as would authorize a change of venue.
    Section 5300 of the Compiled Laws which authorizes an issue to be sent to such county as the Supreme Court may direct, .refers only to issues arising on the question of damages for the detention of the office, and not to those referring to the office itself.

      Heard April 16th.

      Decided April 23d.

    Information in tbe nature of a quo warranto.

    The information in this cause was filed to test the right of E. V. Cicott to the office of Sheriff for Wayne county; and this motion was made asking this court to send the issues to be tried to another county than Wayne.

      Maynard & Meddaugh and A. Pond, for the people.

      C. I. Walker, for respondent.
   Cooley J.

This motion was argued as if, under the statute, it were entirely a matter of discretion with its to send the case for trial to any county in the state; and if it were so, I think great force ought to be allowed to any reasonable suggestion that a trial in any particular county would be in danger of being improperly influenced. But after a most careful examination of the statuté, I am satisfied that it is entirely silent on the subject of the place of trial, and that in this respect we must be governed by common law rules.

The first six sections of the chapter relating to informations— Comp. L. § 5291 -5296 — specify the cases in which informations may be filed; provide for issue and return of summons, and -that the right of the relator as well as the intrusion may be set forth in the information; prescribe what judgment upon the right involved shall be entered, the proceedings by the relator after judgment, and how the defendant may be compelled to deliver over official books and papers. Nothing thus far is said about the place of trial.

The next two sections, 5297 and 5298, authorize the relator, when judgment has been given that he is entitled to the office in question, to file a suggestion of damages, in the nature of a declaration in personal actions, to which the defendant may plead the general issue, and upon which he may recover the damages which he has sustained by reason of the usurpation. Then follows section 5300 which provides that, “All issues of fact or of law that shall be joined between the parties shall be tried and determined in the Supreme Court, or in the Circuit Court of such county as the Supreme Court may by special rule direct, and execution may issue on any judgment recovered on such trial as in other cases.” The next section has reference to an assessment of damages where judgment has passed against the defendant without trial. It will thus be seen that section 5300 is interposed between others which relate exclusively to the suggestion of damages and the proceedings thereon; that it seems to be the necessary complement to those sections and that all its terms are fully satisfied by applying it exclusively to the issues upon such suggestions. I think we must infer that if the legislature designed a section thus placed to have a broader scope than those preceding and following it, they would not have left the intent to inference, but would have used language clearly expressing it.

It is worthy of note also that this section speaks of issues joined between '“the parties.” There is no intimation here that any two classes of parties are intended. But to the issues on the information the people are parties; while to those on the suggestion, the relator is the party plaintiff, and the section next preceding had spoken of him in that character when providing for the issue and trial. Both the natural and the grammatical construction require us to understand “parties” as used in section 5300 as referring to those just before spoken of in that character. The section also provides that “execution may issue on any judgment that may be recovered on such trial.” The word execution when thus used must -be understood to refer to the writ by which damages or costs or both are collected: Rathbun v. Ranney, 14 Mich. 382, and these terms imply that any judgment which can be rendered on the trials referred to, may be enforced by this writ. But the principal judgment on the information relates to the title to the office, and upon any of the issues except upon the suggestion of damages, there may be judgment without either damages or costs, and upon which, therefore, there can be no execution.

The silence of our statute as to the locality of trial, is owing, I have no doubt, to the sections being copied almost verbatim from the Revised Statutes- of New York, where no provision on the subject was important, as the issues would be sent for trial at the proper circuit under their general system. The provision in section 5300 as to the courts in which a trial of issues on the suggestion might be had, was introduced to prevent an incongruity which would have appeared if the corresponding section of the New York statute had been copied literally. That section provided that the issues should be determined as in personal actions; but as under our system personal actions are not tried in the Supreme Court, it seemed necessary to make special provisions. No such incongruous provision being found in the other sections, they seem to have been adopted substantially as they stood, and remain as silent as they were originally about the venue.

I infer from the planner in which Judge Green, the revisor, incorporates section 5300 with the provisions regarding the assessment of damages in his work on practice (§ 1356), that his construction of it is the same as my own.

It remains to be seen what was the rule on this subject at the common law. The proceeding by information is peculiar in its character, partaking of the nature both of a civil and of a criminal proceeding, and may be followed by fine of the defendant if he is convicted. Comp. L. § 5312. But, except as we may be justified in applying by analogy the rules of criminal law, we shall find almost an entire absence of authority as to the venue. Trials were sometimes ordered at bar in cases of importance: Rex v. Amery, 1 T. R. 363, and the Supreme Court of Wisconsin directed such a trial in a case where an important judicial office was in contest. State v. Messmore, 14 Wis. 115. This course might, I have no doubt, be taken in any case where questions of difficulty or of great public importance were involved. But if the case is sent to a Circuit Court for trial, and relates to an office which is local in its duties, I have no doubt it is to be treated as a local proceeding. That was the view of the Supreme Court of Massachusetts in Commonwealth v. Smead, 11 Mass. 74, and of the Supreme Court of Ohio in the case of the Bank of Mount Pleasant, 5 Ohio, 250. It would seem to be the view of Judge Cowen also. See his valuable note to People v. Richardson, 4 Cow. 120. See also Ang. and A. on Corp. § 762 and notes. I have looked in vain through the books of practice and reports for any different intimation.

It follows that we are not at liberty to send this case to any other county than Wayne for trial, unless on such showing as would authorize a change of venue.

The other justices concurred.


author: Per Curiam.

text:
    The People ex rel. William Moore v. Anthony Kehl.

      Circuit Court Commissioned': Habeas corpus: Notice to crédito1)': Waived\ In a habeas corpus proceeding before a Circuit Court Commissioner, in behalf of a party held under an execution against the body, a plaintiff in execution is entitled to four days notice before any order of discharge is made; and the appearance of his attorney for the purpose of objecting to the hearing, for the want of such notice, is no waiver of the same.

      Alias execution in trespass may issue against the body. In an action of trespass, where an original execution can issue against the body of a defendant, an alias execution may also issue against the body upon the return of the previous one, “not found.”

      Heard and decided April 25th.

    Certiorari to William S. Atwood, a Circuit Court Commissioner for Wayne county.
    This was an application to review proceedings before a Circuit Court Commissioner upon habeas corpus.
    Moore sued Kehl in an action of trespass before a justice of the peace, and obtained judgment. An execution issued against the body of Kehl, but was returned “ not found.” Afterwards, a second execution was issued upon the same judgment, and upon which the defendant Kehl was arreste and imprisoned in the county jail. Kehl sued out a writ of habeas corpus, returnable before the Circuit Court Commissioner, and moved to be discharged, on the ground that he was arrested upon a second execution, and which he claimed could not be done under the statute. No notice was given to Moore, the plaintiff in the execution, of the issuing of the writ; but his attorney appears to have made a preliminary objection, on the ground that Moore was entitled, under the statute, to four days notice of the time and place at which said' writ was returnable.
    The commissioner overruled the objection, and treated the appearance of Moore’s attorney as a waiver of notice. He also held the second execution void, and discharged the prisoner.

      Moore & Griffin, for the relator.

      M. Crofoot, for the respondent.
   Per Curiam.

The plaintiff’ in the execution was entitled, under the statute — 2 Comp. L. § 5237 — to four days notice of the time and place at which the writ was returnable before any order of discharge could be made.

The appearance of the plaintiff’s attorney for the purpose of objecting to the hearing of the writ, until such notice had been given to the plaintiff can not be treated as a waiver.

In an action of trespass, when an original execution can issue against the body of a defendant, an alias execution may also issue against the body upon the return of the previous one, “not found.”

Ordered, that the proceedings of the commissioner be reversed, and the prisoner remanded to the custody of the sheriff.


author: Campbell J.

text:
    John Brooke v. The Grand Trunk R. W. Co.

      Sailroad tickets over separate mads: Sights of passenger. Where a passenger bought tickets of a railroad agency in Buffalo, one from Buffalo to Stratford, in Canada, over the B. and L. H. Railway and the other from Stratford to Detroit over the G. T. Railway, and after a delay of two months, from the time of using the former ticket commenced his journey from Stratford to Detroit on the second, it was held that, although printed on the same piece of paper, yet, as they contained no restrictions, they were distinct contracts and vouchers for separate journeys, and the validity of the last ticket was not affected by the delay.
    When the evidence conflicts, it is error in the court to decide the point in conflict and take it from the jury.

      Heard April 23d.

      Decided April 30th.
    Error to Wayne Circuit.
    This was an action of trespass on the case brought by plaintiff to recover damages against the Grand Trunk R. W. Co. for being ejected from the cars by one of their conductors.
    The jury, by direction of the court, rendered a verdict for the defendants, and the case was removed by writ of error.
    The facts are stated in the opinion.

      Lamed and Hebden, for plaintiff in error.
    1. The principal question presented on the record in this case is the charge given by the court, that from the plaintiff’s evidence he could not recover; that the contract was for a continuous passage from Buffalo to Detroit, and was not severable, and that leaving the train at Brant-ford was a forfeiture of his contract.
    The record is distinct that plaintiff purchased two tickets — one from Buffalo to Stratford, and the other from Stratford to Detroit. The tickets and the evidence of witnesses also show that these two roads between Buffalo and Detroit were owned and operated by separate and distinct companies — i. e., the Buffalo and Lake Huron to Stratford, and the Grand Trunk from there to Detroit. That these tickets were upon the same piece of paper is not material. They were so printed as to be easily severed, and were as much distinct agreements as two promissory notes or contracts written upon the same piece of paper. One ticket is the contract of one company, the other the contract of the defendant’s company. Upon the latter the defendant never rode till the day he left Stratford in August. Shall the defendants keep his money and withhold the consideration? — 24 Barb. 514.
    Again: Why did the agents of defendants, assent to plaintiff’s riding from Stratford to Port Huron on the second ticket?
    This last act is decisive of the case. The question is, what was the contract or understanding of the parties? Plaintiff, by presenting, and the agent of defendants, by receiving the second ticket as valid from Stratford, admitted the contract to be, that, while he might have to complete a .continuous ride upon each ticket, he might sever the tickets.
    , The plaintiff is entitled to “a reasonable interpretation of the contract” — i. e., the meaning of the tickets as gathered from their face. They plainly read two separate contracts, for different parts of the route. — 11 Ohio, 462.
    The punching of the ticket between Stratford and Port Huron did not and could not destroy its validity from Port Huron to Detroit. If it was not intended to be good, for the balance of the route, why was it left with plaintiff? Is it a reasonable regulation for a company to sell a ticket from Stratford to Detroit, punch it midway, and tell the passenger to pay a second time? — Ibid; Bed-field on B. W. 300.

      Maynard and MeddaUgh, for defendant in error.
    1. There is no error in the charge of the judge to the jury.

      a. One who has purchased a passage of a railway company from one point to another over its road, and commenced the journey, is bound, in the absence of a special contract to the contrary, to continue through on that train. By leaving the cars at an intermediate station, he forfeits his right to be carried under that contract. — Pierce on Am. P. P. Law, 491; 11 Met. 121; 4 Zabris. 435; 11 Ohio, 457; 24 Q. B. 120.
    When the passenger enters upon his journey, by virtue of his contract with the company, the company is undoubtedly bound to carry him directly through. It can not, after having conveyed him part of the way, stop its train for its own convenience, and detain him until the next day, nor insist that he shall leave the cars at an intermediate station and remain till a subsequent train. Such course by the company would be a violation of the contract, subjecting it to an action for damages. — Redfield on Railways, 342, Note 2. This obligation is reciprocal — on the part of the company to carry directly through by the usual course, and on the part of the passenger to be so carried.

      h. By the rules of the company, a ticket was valid only for a continuous journey, and did not entitle the holder to stop at intermediate stations.
    A common carrier may prescribe rules and regulations concerning the carriage of persons and property, and if reasonable, they must be observed by those employing the carrier. —11 Met. 121; Pierce on Am. R. R. 491.
    The fact proven in this case in reference to the difference in fare charged by the company for a through passage, and a passage from intermediate points to the terminus of the road, is only the well known regulation of all railroad companies. The existence of competition at the termini of a road is generally the reason for this discrimination in favor of through passengers. If carriers have the right to make this distinction in fare, it would seem necessarily to follow that they should have the right to protect themselves iu the advantages to be secured by it. —18 III. 469; 31 Barb. 556; 11 Met. 121; 20 JV T. 126; 5 Mich. 520.
    Such regulations are at all events binding upon the passenger, unless he can show good reason why he should be excepted from them. — Redjidd on Railroads, 32, note 5.

      e. The company did not waive its rights by carrying the plaintiff from Brantford to Port Huron. One of its agents neglected his duties in not ejecting the plaintiff sooner, but can the plaintiff predicate any right upon this? 17 JV T. 306.

      d. The character of the contract is not affected by the fact that two tickets were issued instead of one.
    The ticket is not a contract, but is simply evidence to the conductor of the train that the passenger has paid his fare. It is not signed by either party, and expresses neither a consideration nor time of performance. It is a device by carriers for their own convenience in conducting the business of carrying passengers. It is of the same nature as a check for baggage, and, like it, simply designed to answer a particular purpose of convenience. —17 JV 71 306; 31 Id. 661; 22 Conn. 14; 24 III. 338.
    2. The judge did not invade the province of the jury in directing a verdict for the defendant. ■
    That plaintiff purchased a through ticket from Buffalo to Detroit on the 28th day of June, A. D. 1864, and on that day rode as far as Brantford, Canada, where he stopped; and that he did not resume his journey from the latter place until August 24th, some two months thereafter— when he was carried by defendant to Port Huron, where he again stopped and remained till the next westward bound train — the charge assumes to be true, and there is no testimony to the contrary.
    If, upon this state of facts, the law will not sustain a verdict in favor of the plaintiff (as we have argued), then this direction of the judge was not error.

      There was certainly nothing in these facts for submission to a jury.
    If, independent of any of the rules of the company against it, the plaintiff was entitled to be carried on the 28th day of August, by virtue of his previous contract, then, unless the reasonableness of the regulation of the company to the contrary be a question of law, we see no way of sustaining this charge.
   Campbell J.

Plaintiff sued defendants for ejecting him from one of their cars. He purchased in Buffalo, in June, 1866, tickets from Buffalo to Detroit, consisting of two tickets on one piece of paper, one from Buffalo to Stratford by the Buffalo and Lake Huron Railway, and one from Stratford to Detroit by the Grand Trunk Railway. Upon the first ticket he rode to Brantford, in.Canada, and remained there about two months. Then he went from Brantford to Stratford on the same ticket. Thence he went to Port Huron, in Michigan, on the second ticket, which was punched by the conductor and handed-back. Between Port Huron and Detroit the conductor of the train on which he was riding between those places, ejected him from the cars on his refusal to pay his fare, and would not receive the ticket as valid.

Defendants, among other things, introduced testimony to prove that fare for through tickets from Buffalo to Detroit was, at the time these tickets were sold, cheaper than was charged from some intermediate points to Detroit, and that the defendants had an arrangement with the Buffalo and Lake Huron Railway, whereby they were enabled to carry passengers and freight through from Buffalo to Detxoit. Also, that, by the regulations of the company, persons having a through ticket from one point to another upon the line, could not stop at intex'mediate stations.

The court below held that the plaintiff was only entitled to a continuous passage, and, after leaving Buffalo, was bound to proceed to Detroit on the same train, or lose the right, after once stopping, to proceed further on his ticket.

The court also instructed the jury that, if the plaintiff had a right to treat the second ticket as valid from Stratford to Detroit, yet he had abandoned the train on which he started at Port Huron, and the ticket was unavailable upon any other train. This latter charge appears by the bill of exceptions to have been based upon an assumption of facts which it belonged to the jury to determine, inasmuch as the evidence conflicted. Accordingly, it becomes necessary to consider the former ruling, which treated the whole journey from Buffalo to Detroit as single, and which, therefore, if correct, obviated the error caused by taking the facts on the last charge from the jury.

The circumstances of the present case render it unnecessary to consider whether a simple contract, made to transport a passenger in a single journey beyond the line of the road with which he contracts for passage, renders the contracting company liable as a carrier for what occurs upon another railway. In the case before us, the tickets purport to provide expressly for passage over the lines of two separate companies, and neither ticket extends beyond one line. Each is the voucher for a journey between two specified points. Neither refers to the other in terms, and neither contains any words of restriction.

It was claimed that these tickets are not contracts, and can not, thex-efore, be of any force in detex-mining the rights of the plaintiff, but that he must be considered as having purchased what was equivalent to a single thx-ough passage. Whether a throxxgh ticket over the roads of two separate companies would entail all the same consequences as if they were owned by one, need not now be considered. But we can not x’egard these tickets in any such light. Although they are very informal documents, yet they are easily recognizable as vouchers for separate journeys over distinct roads, one issued by a company on its own behalf, and one issued by the same company in behalf of another. The purchaser must necessarily infer from their face that one of them was issued under some claim of agency; and he had a right to treat them according to their purport. They are the usual evidences of a contract of passage; and whatever may be their imperfections as substitutes for more formal agreements, they must be treated as valid for all which they purport to express. They are no more dependent, merely because printed together, than they would be if each were precisely like the other.

We think that it was not incumbent upon the plaintiff to use these tickets for one continuous journey but that, having used one of them to reach the terminus denoted by it, he was at liberty to begin his second journey when he pleased. The general rule, requiring each separate journey to be completed without needless interruptions, was conceded on the argument, and there are no facts calling upon us to decide whether there are any circumstances of convenience or necessity which can vary it. The plaintiff had a right to use his ticket from Stratford to Detroit, notwithstanding the time which had elapsed after its issue. He had a right to have the jury determine whether he lay over between Stratford and Detroit. The rulings disposed of his entire cause of action, and took away the facts from the jury, touching the continuity of the last journey.

The court erred in holding the two tickets to be valid only for a single continuous passage from Buffalo to Detroit, and also in directing the jury that the second journey had been interrupted.

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

The other Justices concurred.


author: Christiancy J.

text:
    H. Norton Strong v. Jeremiah Saunders.

      Assumpsit: Competency of evidence. Tower of mastei» to Und 'vessel. The plaintiff below had for some years kept a set of range lights and stakes on the St. Clair flats, to aid vessels in navigating the channel, and relied upon such compensation as he could obtain from, vessel owners. •
    In a suit against defendant for the value of such services rendered to his tug boat, evidence was offered tending to show that the lights wore of great benefit to navigation, and that without them it was dangerous for vessels to pass the channel at that point at night; that defendant was the owner of steam tugs engaged in towing vessels through said channel; that defendant had paid $25 for the use of said lights for the season of 1863, and that on being called upon by plaintiff for the payment of the use of said lights for the season of 1864 replied that he would pay what his captain certified was right; that the plaintiff’s bill of $40 for said services was certified to as correct, and that the captain of his tug boat had subscribed as master, to pay the sum of $40 for said season of 1864. Held, that the testimony relating to the payment by defendant of $25 was competent as it tended, in connection with the other evidence, to show that defendant had been fully informed as to the nature of plaintiff’s services, and that he acknowledged their value, and a willingness to pay for them.

      JTeld, further that it was a question for the jury whether from the evidence a promise to pay could be implied, and that, as the services had already been performed, the plaintiff would be entitled to recover if the jury should find a promise to pay, either expressed or implied.

      Beldt further that the power to bind the owner for such expenses did not come within the ordinary general powers incident to the employment as master, and that, therefore, the said subscription was not binding upon the owner.'

      Heard April 23d.

      Decided April 30th.

    Error to Wayne Circuit.
    This was an action of assumpsjt brought to obtain compensation for the use of certain range lights placed on the St. Clair flats by defendant in error to aid vessels in navigating the channel.
    The declaration was on the common counts.
    Defendant plead the general issue.The facts, together with the exceptions taken to the rulings of the court below, are stated in the opinion.
    Judgment was rendered for plaintiff in the court below, and the case comes up for review as to the correctness of the rulings.

      Newberry and Pond, for plaintiff in error.
    1. The first and second assignments of error can be considered together as they relate to the admission of testimony of the same nature, to wit: Testimony tending to
    show that the defendant paid plaintiff for the use of said range lights, by the tug “Bob Anderson,” in the year 1863.
    This testimony was clearly irrelevant. The fact that defendant paid for the use of these range lights in the year 1863, by the “Bob Anderson,” would not justify the inference that he promised to pay for the use of them for the “I. IT. Masters” in 1864.
    ■ 2. The fourth and sixth assignments of error may also be considered together.
    The fourth is based upon the refusal of court to instruct the jury that under the facts no promise by Strong to pay for the use of said range lights could be implied. And the sixth, upofi the instruction given, that it was for the jury to determine from the evidence whether there was any promise, express or implied.
    We think it clear that the court erred in refusing to give the instruction asked; but whether this be so or not, the instruction given was clearly erroneous.

      a. An “implied promise,” is a promise created by the law from a given state of facts; and hence, the facts being conceded, the question whether or not the law created a promise, is pure question of law.
    And we insist that the facts as claimed by plaintiff were not such that the law would create from them an implied promise by Strong to pay for the use of said range lights; and hence that the instruction asked should have been given.

      b. The instruction given left it to the jury, first, to determine the facts, and second, whether from the facts, as they should find them, the law would create an implied promise by Strong.
    This was clearly erroneous.

      3. The question involved in the consideration of the' seventh. and eighth assignments of error, is whether the subscription for the use of said lights signed by “W. H. Littleton, Master of tug I. IJ.. Masters,” was binding upon defendant, as a contract made by him through his agent.
    We submit that it was not so binding. Defendant’s name no where appears upon it, and the promise is by Littleton. The words “Master Tug I. IT. Masters” after his name, are to be taken only as descriptio personae.— 1 Amer. head. Cases, (4 Ed.,) 623; 1 Pars, on Cont. 48, Note A.; 11 Mass. 27; 8 Met. 456; 9 N. R. 263; 3 Wend. 94; 10 Id. 271; 5 Sandf. 101; 4 N. T. 208; 9 Id. 571.
    4. The master of a vessel, as such, undoubtedly has authority to bind her owner, or owners, by any agreement necessary and proper to be made in regard to such vessel, in and about her usual and ordinary course of business. But, we insist that an agreement to pay for keeping up said range lights was not such an agreement any more than would be an agreement to pay a certain sum towards building or sustaining a light house.— 1 Pars. Mere. h. 383.
    We submit that the judgment below should be reversed.

      Moore and Griffin, for defendant in error.
    1. If Strong paid for the use of the lights in 1863, and availed himself of the benefit of them in 1864, know-, ing that Saunders expected compensation for such use, and without notice to Saunders that he should not pay, the law raises an implied assumpsit on the part of Strong to pay for the benefit he derived from the lights in 1864.
    If Strong acknowledged the benefit of the lights in 1863 by paying for them, from this the law infers or deduces that he intended to pay for them in 1864, if he used them. — Story on Cont. §11 et seq.; 1 Pars, on Cont. 4; 2 Greenl. on Eo. §§ 107, 108.

      It was competent to introduce in evidence the bill against the tug certified to by the master, W. II. Little-ton, as there was evidence before the jury of an express promise on the part of Strong on condition that such certificate should be produced.
    It was also proper evidence to show that the amount charged by Saunders were the figures which Littleton, as master, made for the use of the lights for tug I. TJ. Masters during the season of 1864.
    The fourth, fifth and sixth assignments of error relate to the charge of the court, and may be considered together.
    There is certainly evidence, if believed by the jury, which justifies them in finding an implied promise.
    Thei’e is also evidence, if believed by the jury, that justifies them in finding that keeping the range lights was beneficial to plaintiff in error, and if they so found, it was a sufficient consideration to support an express promise.— 2 Greenl. on, JEk. § 107, above eited.

    The second and third requests were properly refused.
    The defendant 'in error was entitled to a stronger charge than the one alleged as error in the sixth assignment. He was entitled to the charge that if the jury believed the testimony of the witnesses of defendant in error, they must find both an express, and an implied promise.
    The jury must have believed this evidence, to have found their verdict, and as, therefore, no injury resulted to the plaintiff in error, this court will not reverse the judgment, even if the charge were not technically correct.
    2. The general rule as to the authority of the master is: That owners of vessels are bound by contracts of the master, relative to the usual course of ships’s employment. Abbott on Shipping, pp. 164-167; 3 Kent, (last ed.,) 220, et seq. and notes; ConJc. Adm. 74, 75; Ware's Hep. 194.
    These authorities indicate and decide that whatever contracts relate to the- employment or navigation of the vessel or to supplies, repairs or necessaries, furnished to her are binding upon the owner, though made by the master.
    The evidence in this case discloses facts which bring the contract made by Littleton within the rule.
   Christiancy J.

The plaintiff below had for some years kept a set of range lights and stakes on the St. Clair Flats, to aid vessels in navigating the channel at night, for which he received no pay from government, but relied upon such compensation as he was able to obtain from the owners of vessels navigating the channel, and others interested in the navigation.

All the evidence tended to show that the lights were a great benefit to the navigation, and that without them it was imprudent and dangerous for vessels, and especially for tugs, towing vessels, to pass the channel across the flats at night. Defendant below was the owner of certain steam tugs engaged in towing vessels between lakes Erie and Huron, which had to pass this channel.

The evidence tended to show that defendant, in the spring of 1864, being called upon by plaintiff for pay for the use of these lights by his steam tug Bob Anderson, for the season of 1863, professed to be ignorant of the nature and value of the services, and upon inquiry of his captain of the tug, and learning the facts, had paid the twenty-five dollars claimed by the plaintiff, which the captain assured him was reasonable. The defendant, in speaking of the use of the lights, always carried the idea that whatever was right to pay the plaintiff he would pay, but declared he would not pay any bill until certified by the captain — that defendant said he wished his captains to make figures as to what he should pay for such services. And though the defendant had refused to subscribe in advance for such services to be rendered, there was evidence tending to show that his answer to such application was that his masters would fix the figures, and that he would pay the amount they fixed or certified.

This suit was brought to obtain compensation for the use of these lights by defendant’s steam tug “I. U. Masters,” for the season of navigation of 1864. Plaintiff declared only upon the common counts, and claimed forty dollars as a reasonable compensation for the use of the lights by a tug of the size of that in question, and plaintiff’s bill for this amount was certified by the captain of the tug as correct.

The captain had also, about the last of October or fore part of November, signed a subscription as master, promising to pay forty dollars for the use of said range lights, by that tug, for the season of navigation of 1864.

The first two exceptions were to the admission of evidence tending to show that defendant had, .in the spring of 1864, paid the plaintiff for the use of these lights by • his tug “Bob Anderson,” for the previous year.

We see no error in the admission of this evidence. It tended, in connection with the other evidence, to show that the plaintiff had been, in the spring of 1864, fully informed of the nature of the plaintiff’s services, and that he recognized them as valuable to him, and as the services for the season of 1864, for which the suit was brought, were of the same nature, it tended, in connection with the other evidence, to show a willingness on his part to pay for such services in future — in other words, a promise to pay for such future services.

The third and fifth assignments of error were very properly abandoned on the argument, and need not be noticed.

The fourth assignment of error is the refusal of the court to charge that, under the facts disclosed in the evidence, no promise to pay for the benefit derived from the range lights could be implied, and the sixth, the charge given upon this point, that it was for the jury to determine ■whether there was any promise on the- part of the defendant, express or implied. There was evidence strongly tending to shoiv an express promise to pay such sum as the defendant’s captain should certify to be fair and reasonable; and there was also evidence tending to show an implied promise, or, in other words, a clear duty on the part of the defendant, to pay a reasonable compensation; and, although this evidence was contradicted by that of the defendant, still it was a question for the jury upon the evidence, and it would have been clearly erroneous for the court to have taken the question from the jury and assumed to decide it himself, in accordance with the request. As the services had already been performed, the plaintiff would be entitled to recover if the jury should find an express promise, or such a state of facts as would create an implied promise.

But the, court was requested to charge that Captain Littleton’s employment as master of the tug “I. TJ. Masters,” gave him no authority to bind the defendant by an agreement to pay the plaintiff for the use of said range lights, and that his subscription of forty dollars for that purpose did not bind the defendant. This request was refused, and the court charged directly the reverse — that if the use of the range lights was necessary and proper, the subscription was binding. This refusal and charge, we think, were erroneous. Had the tug been sailing in a foreign country, or at a great distance from the home port, where the master could not communicate with the owner in time to meet the emergency; or, had the subscription been only for the use of the lights for one or two pass-, ages of the tug over the flats, and it had become necessary to agree upon the sum before he could consult the owner, we are not disposed to deny — though we do not decide — that for such special emergency, he might have had power to bind the owner. But the power to bind the owner for such expenses can not be treated as one of the ordinary general powers incident to his employment as master, like that of contracting for freight, signing' a bill of lading or the purchase of customary supplies. The power here in question can be recognized only as springing from, and therefore, limited by, the necessity of the case. Here could have been no such necessity. For admitting that the tug could not have had the use of the lights without immediate payment or the master’s subscription (though the contrary clearly appeared by the evidence), still as the tug was engaged in towing vessels between Lakes Huron and Erie, and must, in the ordinary course of business, frequently pass Detroit, the home port where the owner resided, the master must have had frequent opportunities of conferring with the owner, and the flats where the lights were kept were about thirty miles from Detroit, where he might communicate daily with the owner by mail.

For the error of the court below upon this point, the judgment must be reversed, with costs, and a new trial awarded.

The othfer Justices concurred.


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    In the matter of Edwin P. Teachout.

      Affidavit: when the wards “before me" necessary in jurat. Where an affidavit is used before the officer who administers it, the omission in the jurat of the words “before me” will not vitiate it.

      Circuit Cowrt Commissioner: Fraudulent debtor's act: PHma facie case. An application to a commissioner under the fraudulent debtor’s act must make out facts amounting to a prima facie case of fraud.

      Heard and decided May 1st.

    Habeas corpus to the Sheriff of Calhoun county.

      G. V. N. Lothrop, for the relator.

      O. I. ’Walker and William II. Brown, for respondent.
   This was a proceeding to review the acts of a Circuit' Court Commissioner under the non - imprisonment law.

The petition set forth in substance that Teachout was imprisoned by the Sheriff of Calhoun county by virtue of a warrant of a Circuit Court Commissioner for fraudulently contracting a certain debt to C. M. Garrison, H. W. Newbery and G. W. Waterman, January 4th, 1867, and assigning his property with intent to defraud his creditors. That such detention Was unlawful for the reason that the said warrant was issued without satisfactory evidence to establish the complaint made before said commissioner; and that in the affidavit upon which said warrant was issued the words “before me,” in the jurat were omitted.

The court held that where an affidavit is used before the officer who administers it, the omission in the jurat of the words “before me” does not vitiate it.

The majority of the court also held that an application to a commissioner under the fraudulent debtor’s act must make out facts amounting to a prima facie case of fraud.


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    The People ex rel. G. R. Goldsmith v. The Highway Commissioners of Nankin.

      Constitutional law: Powers of Highway Commissionej's and Supervisors. Under the Constitution — Art 10, §11 —“the Board of Supervisors of each organized county may provide for laying out highways, constructing bridges, and organizing townships, under such restrictions and limitations as shall be prescribed by law.” Held, that such provision did not contemplate exclusive control over the subject-matter by the supervisors; neither was it inconsistent with the exercise by Highway Commissioners of the^power to lay out, alter or discontinue highways.
    2. That by the amendment to the Constitution — Laws 1859, §1102 — Highway Commissioners had authority to discontinue such roads as came within the exercise of their official duty without the intervention of a jury.
    3. That the Board of Supervisors, having full control over the opening, altering and discontinuing of state and territorial roads (1 Comp. L. §1081), the exercise of such power by Highway Commissioners was repugnant thereto, and not contemplated by the statutes.

      Heard April 25th.

      Decided May 7th.

      Certiorari to the Commissioners of Highway of the township of Nankin.
    The Commissioners of said township made an order discontinuing a portion of the Monroe and Pontiac Territorial Road, running through the village of Wayne. And this writ was brought to review their proceedings.

      II. M. <& W. U. Cheever, for relator.
    1. Admitting that all the proceedings are valid in form, we insist that Highway Commissioners have no power to discontinue a territorial road. If the power exists at all, without the intervention of a “jury” or “commissioners of a court of record,” it is expressly delegated to the supervisors of the county. Under the old Constitution, no jury was required in laying out or discontinuing highways; and an act was passed giving to the Board of Supervisors power “to lay out, alter or discontinue, all state or territorial roads. — Comp. X. p. 364; Sess. X. 1861, p. 261; Sess. X. 1867.
    2. There is no power either in Highway Commissioners or the Board of Supervisors, to act in any case under the Constitution of 1851, without the intervention of either a “jury” or “commissioners appointed by a court of record. Constitution, Art. 18, §§2, 14; Id. Art. 15, §15; Id. Art. 10, §11; Sess. X. 1860; 4 Mich. 95.
    3. If it be urged that in discontinuing a road no “private property” is “taken” for public use, we answer:

      a. If the whole matter is committed to the Board of Supervisors by the constitution, no statutory enactment can give it to the Highway Commissioners.

      b. The discontinuance of a road may be just as effectual a “taking” of private property as the opening of one. Whatever hinders or obstructs the use of property, virtually takes it away. The “taking” contemplated is not an annihilation, but a preventing of the use. So the discontinuing a highway by which access is obtained to land, depreciates, or wholly destroys, as the case may be, the value of the land, The value is in the use. The use gone, the value is gone.
    We submit the proceedings of the Commissioners are void, and should be set aside.

      Moore <& Griffin, for respondent.
    It is contended by counsel for relator —

      First, That the power of laying out highways is committed exclusively to the Board of Supervisors by the constitution. — Art. 10, §11.

      Second, That, in any event, the Highway Commissioners can not act except through the intervention of a jury, or of three commissioners. — Art. 18, §2.
    1. In 1856, this court decided the act of 1848 repugnant to the provisions of section two, article eighteen, of the constitution adopted in 1851.
    Subsequent legislation demonstrates that in the view of the law-making power “the charge of this matter,” was not committed exclusively to the Board of Supervisors.
    Prior to the adoption of the constitution in 1851, the power of the legislatiu-e to authorize Highway Commissioners to lay out a highway, is conceded.
    Under the operation of the above decision, there was no law providing for the laying out of highways. At its next session of 1857, the legislature passed an act authorizing the Highway Commissioners to lay out, etc., a highway. Section eleven, article ten, of the constitution, was not considered by the legislature itself a limitation or restriction of its power to authorize Highway Commissioners to lay out highways, or we should not have the act of 1857: Nor yet the joint resolution of 1859, recognizing the validity of such grant of power to the Highway Commissioners: Nor the act of 1861.
    Some respect is due to the opinion of a co - ordinate power of the government. —17 JV. Yl 241.

      2. This act is not repugnant to the provisions of section two, article eighteen, as amended in 1860.
    The amendment removed all constitutional difficulty.— Sess. L. 1859, p. 1102.
    That it was the intention of the legislature which passed the joint resolution to clothe the Highway Commissioners with power to act without the intervention of a jury, is obvious from the whole history of legislation on this subject.
    “ The official discharge of their duties as Highway Commissioners,” refers particularly to the official discharge of their duty in relation to the laying out, altering and discontinuing highways.
    All prior statutes had made it such — the subsequent act of 1861 made it such.
    There are but few, if any, other acts of Highway Commissioners to be performed in the “official discharge of their duty,” as provided by law, which conflicted with this provision of the constitution, prior to the amendment.
    But granting that the act is unconstitutional so. far as it authorizes Highway Commissioners to lay out a highway, may it not be constitutional so far as it authorizes them to discontinue a highway ?
    A law unconstitutional in some of its provisions, may be valid as to the remainder-. — Cooley’s Digest, 611, cases cited.

    The constitution has not expressly given to the Board of Supervisors power to discontinue a highway. Neither is discontinuing a highway taking private property for public use, within the meaning of section two, article eighteen.
    On opening a highway, the public take the use and not the fee.
    For such taking, the law provides the owner shall be compensated in damages. ' If the owner is once compensated for the talcing of his property, must he also be paid when it is returned to him?
    It is of no consequence that such taking indirectly affects the value of the adjacent property. — 4 AT. Y~. 205.
    3. The act of 1846 — Comp. Laws, §1081 — shared-the fate of the act of 1848, and was annulled by the decision of this court, as repugnant to section two, article eighteen, of the - constitution.
    In the absence of any special act providing for the laying out, etc., of state and territorial roads, it was undoubtedly the intention of the legislature to grant such powers to the Highway Commissioners.
   Cooley J.

The first objection to the jurisdiction of the commissioners in this case is, a want of constitutional power. If the objection- is valid, it must be so either first, because power to lay out, alter and discontinue highways is conferred upon the county boards of supervisors; or second, because the commissioners can only act after the necessity has been determined by a jury or by commissioners appointed by a court of record.

The constitution — Art. 10, §11 — provides that “The board of supervisors of each organized county may provide for laying out highways, constructing bridges and organizing -townships, under such restrictions and limitations as shall be prescribed by law.” This section has never been construed by the legislature as taking from the township authorities the control over roads which they before possessed, and all the statutes which have since been passed on the subject have provided for the continued exercise of that control. A careful examination of the provision will show that it is not one which executes itself, but that it contemplates action by the legislature establishing restrictions and limitations - before it becomes operative. Even then it is not in its terms exclusive, and there is nothing which would preclude the legislature from conferring power over this subject on the township highway commissioners even if they should also provide for the exercise of similar powers by the board of supervisors in specified cases, with suitable provisions to prevent conflict.

And whatever may have been the rule before 1860 — upon which we express no opinion — we are satisfied that a jury or commissioners appointed by a court of record are not now essential to the validity of action by highway commissioners in either laying out or discontinuing highways. The amendment to the constitution adopted in that year was intended to do away with that necessity, and its terms are sufficiently comprehensive to embrace all cases which fall within the official duty of the commissioners.

The second and more serious objection to the jurisdiction is based upon the fact that the road, a portion of which was sought to be discontinued, was a territorial road; and over these, it is insisted, the highway commissioners are not vested with the power of discontinuance which they possess in other cases. This objection must prevail. Ever since 1846 there have been statutes authorizing the boards of supervisors to open, alter or discontinue state and territorial roads where, in their opinion, the interest of the public demanded it. — Laws, 1846, p. 240; Comp. L. §1081 to 1085, and 359 to 363. Before that time, although a general control over such roads, when laid out and established, had been conferred on the highway commissioners and overseers (Laws, 1830, p. 7), yet even the board of supervisors do not seem to have been vested with power to discontinue, but only to make alterations. — (Laws, 1834, p. 91.) An unrestricted power in the supervisors to open, alter and discontinue, is hardly consistent with the possession of a similar power by the highway commissioners of the township, and it is easy to see that there might be a conflict of authority in cases where neither would be paramount. We can not suppose the legislature would intentionally authorize two bodies to act upon the same subject with co-ordinate power, and with no provision for a final arbiter between them, when the effect would be to enable each to thwart the acfion of the other, and to play at cross. purposes as local or other influences might move them. The terms of the general statutes empowering highway commissioners to discontinue roads, are satisfied by applying them to the roads which the commissioners have laid out, or which have become such by dedication and prescription; and, theie are reasons which must have had great weight in inducing the legislature to refrain from conferring upon these local boards the authority to discontinue by piecemeal the thoroughfares which have been regarded of sufficient importance to be specially provided for by the territory or state. These roads are usually constructed with reference to convenience of passage between distant localities; and the general purpose might be defeated by leaving it to every township through which they pass to change or discontinue them. We are satisfied no such authority was conferred, and that the legislative act of the last session prohibiting its exercise was, in reality what it purported to be, only declaratory of the prior law.

The proceedings of the commissioners must be reversed for want of jurisdiction.

Campbell and Christiancy JJ. concurred.

Martin Ch. J. concurred in the result.