text:
    Irvin Green and Ira W. McIntyre, vs. Samuel Kindy.
    J, P,” is the abbreviation commonly used in the English la* guage for Justice of the Peace and is a sufficient designation of the official character of that officer.
    A motion to vacate a judgment for irregularity, may be made at any time within one year, the mover not being guilty of laches.
    W here judgment by default, for not declaring, goes against a plain tiff in replevin, the defend ant has no right to have his damages assessed, without first giving notice thereof to plaintiff.
    Whether in case the Sheriff returns the property replevied, to the defendant, on account o the failure of the plaintiff to execute the proper bond, the defendant would be entitled to jugdment for anything but costs, quere — the question not being directly before the Court. Notice of the taxation of costs, must be served on the attorney, instead of the party.

      Heard Dec. 6th, 1869,

      in the Circuit Court for the County of Kalamazoo.

    This was a motion to set aside a judgment entered for the defendant, at the last September term-of this Court.
    The facts in the case are as follows: Oh' the l-6th day o f April, 1869, the plaintiffs procured to he issued, a writ of replevin, to recover certain property, claimed to he in the possession of the defendant. The Sheriff returns that he took the property by virtue of the writ, but plaintiffs neglecting to deliver to him the requisite bond, within twenty-four hours, the property was returned to the defendant. The defendant was summoned as required by law. Appearance was entered by O. T. Tuthill, for defendant, May 25th, 1869, and notice thereof was mailed to plaintiffs’ attorney.
    No further steps were taken by the plaintiffs, except to execute a bond to the Sheriff, April 23d, being after he had returned the property to the defendant. Thereupon, plaintiffs’ default was entered at the last September term of this Court; a rule was entered in the book of common rules, to make said default absolute and for judgment, &e.; and defendant’s damages for detaining the property, while the same was in the costody of the sheriff, were assessed at $65.00, and judgment rendered therefor, with costs to be taxed.
    The costs were subsequently taxed.
    A motion is now made to vacate and set aside the judgment for irregularities; and for leave to file a declaration, for the reasons:
    “ First, No notice of the assessment of damages vras given to plaintiffs or their attorney. C. L. § § 4426, 5039; Green’s Pr. § § 394, 395.

      Second, Notice of the taxation of costs was served on plaintiffs one day after the time named in the notice, for the taxation.

      Third, This notice should have been served on the attorney, and not upon the party. Green's Pr, § 780; 2 Johns. Cases 121.”
    This motion is opposed, because,
    “ First, The jurats to the affidavits being signed, “ E. F. Pierce, J. P.,” do not furnish evidence of the official character of the person administering the oath. Green's Pr., 250.

      Second, The parties are out of time by the rules and practice of the Court, to make such a motion. Green's Pr., 241; C. C. Rules 21, 23, 27, 31.

      Third, The plaintiff is guilty of laches.

      Fourth, No affidavit of merits is furnished. Green's Pr., § § 935, 940.

      Fifth, A motion tor a new trial, cannot be regularly made and entered in this case, because there never was an issue formed. There is nothing to try. -Neither can a declartion now be allowed, because the property, the subject matter of the declaration, when filed, by the laches of the plaintiff, has passed beyond their control and authority, in this action.

      Sixth, No notice of trial, or assessment of damages was required to be given in this cause, there being no issue formed to try, and no assessment to be had upon an issue, as contemplated by the statute, requiring notice of assessment of damages in certain cases. Green’s Prac., § 909 and page 170 ; C. L., § 4426.

      Seventh, A motion to set aside for irregularities, or on the merits, must be made within the time limited for new trials. Green's Pr., § § 918, 934, 936, 937, and 938.

      Eighth, Judgment for costs and damages in such cases as this, is expressly authorized, and provided by our statutes. C. L., § § 5022, 5027.

      Ninth, Notices of trial are only authorized by rule 54, and practice {Green, § 385,) when the cause has been brought to an issue, and the only eases where notice of assessment is required, are those where an appearance has been put in by a defendant, and then has suffered the case to go by default. See C. L. § 4426,”

      Wm. Sadler, for Plaintiff,- May & Back and N. A. Batch, of Counsel.

      O. T, Tuthill, for Defendant.
   By the Court,

Brown, J.

Objection is made to the reading of plaintiffs’ "affidavits. It is claimed that ‘- J. P.” is not a sufficient designation of the official character of the person 'who administered the oath. “ Such abbreviations as are commonly used in the English language may be used.” C L. § 4070. “ J P., Justice of the Peace.” Webster's Unabridged Dictionary, page 1505. The affidavits, in this respect, are sufficient.

It is contended that this motion is not made in time. <!No judgment, in any Court of Record, shall be set aside for irregularity on motion, unless such motion be made within one year after the time such judgment was rendered.” G. L. § 4440 It is the duty of the party complaining of the irregularity, to move to set aside the proceedings at his earliest opportunity, after discovering such irregularity. From the affidavits I am satisfied that the plaintiffs have not been guilty of laches in this respect, and that therefore they are in time. The motion is in time, being within the year.

It is said “ the plaintiff has filed no affidavit of merits ” The original affidavit attached to the writ is a sufficient affidavit of merits.

The defendant insists that as no issue is formed, there would be nothing to try, if a new trial were granted — that a declaration could not be filed, because the property is not in the possession of plaintiffs.

This is a motion to set aside a judgment, for irregularities, and that an issue may be formed:

It is not necessary that the plaintiff should have possession of the property, in order to proceed in the action lor the recovery of the same, or the value thereof. C. L., § 5017.

No notice of the assessment of damages was given to the plaintiffs. No damages could be legally assessed, except as provided for by chapter 152, V. L. • and “ whenever any damages shall be assessed, pursuant to any provisions contained in this chapter, the same notice thereof shall be given to the adverse party, as is required by law, and the practice of the Court in the like cases in personal actions.” C. L. § 5039. In personal actions, fourteen.days notice is required. Whether under the circumstances of this case the defendant should recover more than his costs, quere, C. L., § 5040.

Notiee of the taxation of costs was served on plaintiffs, one day after the time named in the notice for the taxation. The taxation however, was not made until several days thereafter; and defendant claims that he notified plaintiffs, orally, of that fact.

The notice should have been served on the plaintiff’s attorney. Let an order be entered vacating the judgment, and setting aside default, allowing plaintiffs twenty days, in which to file declaration, and serve copy.


source: Caselaw Access Project

author: Sutherland, J.

license: Public Domain

text:
    Jesse Hoyt, vs. Carkin & Kimball.

      Saginaw Circuit Court,
    July, 1869.

      W. L. Webler, for Plaintiff.

      J. J. Wheeler, for Defendant.
   By the Court,

Sutherland, J.

This action is a special action of trespass on the case, brought to recover damages for depositing earth on the plaintiff’s land, covered with water in Saginaw river,

The plaintiff obtained a verdict for $50., and now moves for judgment for costs, as well as for the damages. The claim for costs is opposed. By Sul. 2, § 5597, C. L., the plaintiff is allowed costs, if he recover a verdict in an action, in which the title to land shall come in question. In this case, the plaintiff sued as owner, and claimed damages for injury to the inheritance.

Costs are recoverable.


text:
    Boyd & Boothe, vs. George Moyler, Principal Defendant, and East Saginaw Manufacturing Company, Garnishee.

    Ip no issue is claimed'by a garnishee, after filing disclosure, the case is to be heard, ex parte«

      Saginaw Circuit Court,

      June 23 1869.
    Disclosure by garnishee had been filed, but no issue claimed —L. 1861, p. 573, Sec. 12 — and the case had been put on the docket, for trial by jury, called by the plaintiff.

      D. W. G. Gage, for Plaintiff.

      II. Joslin, for Defendant.

      J. J. Wheeler, for Garnishee.
   Sutherland, J.

A question is informally raised, whether the case is at issue.

I think it is not. Notice of claiming an issue is the only mode of denying the plaintiffs’ declaration, and that claim is made equivalent to a plea of the general issue.

The act is strangely wanting in clearness. It provides for judgment by default, when a disclosure is not filed, and for a trial, when the statutory issue is formed. But it does not prescribe the practice in a case, in such state, as this case is in, where an indebtedness to the principal defendant is sought to be enforced, and a disclosure has been filed, Sec. 2, L.'1863, p. 396, however, provides that from the service of the writ, the garnishee shall be liable to the plaintiff, to the amount of any debt due, or to become due, to the principal defendant; and Sec 12, L. 1861, p. 663, provides that the affidavit for the writ shall be held and^ considered as a declaration by the plaintiff, against the garnishee, for money had and received, in respect to the indebtedness of the garnishee to the principal defendant.

It must be inferred, in the absence of any directions how the case shall then proceed, when no issue is claimed, that the right given by section two, and declared for, as allowed by section twelve, may be enforced by proof and judgment.

Default is not provided for, and no defence being put on record, the hearing must be ex parte. The disclosure’may be read, and witnesses examined by the plaintiff; and, doubtless, the garnishee may have the privilege of cross-examination.


author: Brown, J.

text:
    Crocker, vs. VanBrunt.
    The affidavit required by the third sub-division of Oh.. Rule 112, to authorize the Commissioner to grant an injunction without notice to the adverse party, may he made by the complainant, as well as by any other person.

      Allegan Circuit Court,

      October, 1869.
    Motion to dissolve an injunction, granted by a Circuit Court Commissioner, for the reason that the affidavit required by the third sub-division of Gh., Rule 112, was made by the complainant.

      H. H. Coolidge & Son, for Complainant.

      F, J. Littlejohn, for Defendant.
   Brown, J.

By Ch., Rule 112, adopted as a restriction upon powers of commissioners, it is provided that no commissioner shall grant any injunction, without first giving reasonable notice of the time and place of hearing the application therefor, to the adverse party, “ unless, in his opinion, the peculiar exigences of the case require it, for manifest reasons, to be shown by affidavit.”

The rule is not restrictive as to who shall make the affidavit. It may be made by any person having knowledge ofu the peculiar exigences of the case.’’


text:
    Edward W. Ladd, vs. The M. E. Church of East Saginaw.
    The statute, § 4839, O. L, providing that “ in actions by, or against, any corporation, created by, or under any law of this State, it shall notbe necessary to recite the act, or acts of incorporation,” &c„ “ but the same may be pleaded by reciting the title of such act, and the -date of its approval,” has not been regarded as superceding the mode of declaring, permitted before that statute was passed.

      A corporation may be declared against by the name by which it is known, without alleging it to be chartered or incorporated, if the description impliedly amounts to an allegation that the defendant is a corporate body.

      Circuit Court, Saginaw County,

      June, 1869.
    Demurrer to declaration.
    In the commencement of the declaration, the defendant is named and described, thus: “ The Methodist Episcopal Church, of East Saginaw, a society for religious purposes, organized under the laws of Michigan.”
    The sole cause of demurrer, is: “ That the declaration does not contain any allegation that the defendant is a corporation, organized under any particular law of this State, and does not recite the title of the act, or the date of its approval, by, or under which said corporation was created.”

      Webber & Smith, for Plaintiff.
    jBT. Joslin, for Defendant.
   Sutherland, J.

The case of The People vs. DeMill, 15 Mich., 164, is cited in support of the demurrer. That ease is not applicable ; it does not declare what allegations of a defendant’s corporate existence are necessary in a declaration. The corporation was not a party to that proceeding.

The statute referred to, § 4889, O. L., offers certain advantages to the pleader — see section 4840, C. L. — but it has not been regarded as superceding the mode of declaring, for, or against a corporation, permitted before that statute was passed, Onondaga Co. Bank, vs. Carr, 17, Wend, 443; LaFayette Ins. Co., vs. Rodgers, 30, Barb. 491; Kennedy, vs. Colten, 28, Barb. 59; Union Ins. Co., vs. Osgood, 1, Duer, 707; Leghte vs Everett, 5, Bosworth 716; 2 R. S. New Y. 459, Section 13. ’

A corporation may be declared against by the name by which it is known, without alleging it to be chartered or incorporated, if the description implied amounts to an allegation that the defendant is a corporate body, Angel & Ames, on Cor Sec., 649; Woolf, vs. The City Steam Boat Co., 62 Eng. Com. L., 101.

The demurrer overruled. Leave will begranted to withdraw he demurrer, and plead in 20 days, on paying the costs of the demurrer.


text:
    Samuel Slocomb, vs. Erastus Thatcher.
    I’LAlNWf'i may discontinue suit by common order, on payment of costs. Discontinuance takes effect on entry and service of common order, subject to condition subsequent, that the plaintiff p y the coats when they are afterwards taxed.

      Saginaw Circuit Court,

      June 25th, 1869,
    Plea in abatement of former suit, in.same cause, pending. Replication that former suit had been discontinued. Rejoinder denying the discontinuance.
    This suit was commenced Dec. 28d, 1868, immediately after entering and giving notice of order discontinuing the former action. The rule to discontinue, was on payment of costs, and an offer to pay them accompanied the notice of the order to discontinue. No costs have been taxed and none paid.

      H. H. Hoyt, for Plaintiff.

      E. Thatcher, for Defendant. '
   Sutherland, J.

Rule 26 only allows a plaintiff to discontinue by common rule on payment of costs; but as the costs have to be ascertained by taxation or otherwise, the plaintiff can not pay them unless the defendant takes the requisite steps to render the amount certain. The English practice enables the plaintiff to procure taxation on his own motion, and exparte, if the defendant does not choose to appear — but we have no such practice. James vs. Delevan, 7 Wend. 511.

On payment of costs, the discontinuance takes effect from the entry of the rule. Under the English practice, if the costs are paid before replication to the plea in abatement, in the second action, the discoutinuance is seasonably consumated, to defeat he plea. Brandt, vs. Peacock 1, Barn. & Cress., 649. As the plaintiff has it in his power to procure a taxation, he is properly and reasonably required to pay them before issue is joined in the plea; but under our practice, should the defendant take no steps, after notice of the rule to discontinue, to have the costs taxed, the plaintiff would be indefinitely prevented from commencing a fresh action, if he could not proceed before actual payment of the costs of the former one. When the plaintiff has entered and served a notice of the rule for discontinuance, it takes effect immediately, as a discontinuance, subject to the condition, which has all the qualities of a condition subsequent, that he pay the costs as sooon as they are taxed. In this case the defendant not having taxed the costs, they are not yet due and payable, and the rule for discontinuance must be held .effectual. Judgment, that plaintiff recover his damages to be assessed. Green's Pr., Sec. 524, p. 158.


text:
    Faite, et. al., vs. Hart and Monroe.
    The same notice of assessment by the Court Should be given as is required for assessment by the Clerk.
    The assessment by the Clerk may be made as well out of term as in term, if the case is in a condition tobe noticed.

      Circuit Court, Saginaw County,

      June 29th, 1869
    Notice of assessment of damages by the Court, for a day in term, after the first.
    The defendant objects, that the notice for this assessment should be the same as for assessment by the clerk, and that requiring a like notice as of trial, it should have been given fourteen days before, and for the first day of term. C. L., § § 4426, 4347.

      Green & Schofield, for Plaintiff.

      H. H. Hatch, for Defendant.
   Sutherland, J.

The same notice of assessment by the Court should be given as is required for assessment by the clerk —though the statute does not in terms require it, 10 Wend, 560.

Before notice can be given of assessment either way, to an attorney who has appeared — § 4426 C. L. — interlocatory judgment must be rendered. C. L. § § 4423, 4437. If fourteen days notice before the term were required, a party could always obtain a delay of a term, by appearing and suffering a default, having no pretence of defence, when he could not do so by pleading. This could not have been the intention of the statute.

Held, that this case is properly noticed. The assessment by the clerk may be made as well out of term as in term, if the case is in condition to be noticed, and the notice may, and should be for the day on which the assessment is intended to be taken. Green's Pr., 304.


author: Brown, J.,

text:
    Henry S. Hill, vs John Bowers.
    The small meandered lakes, in Michigan, belong to, and are a part of the section or subdivision of land in which they are situated.
    The meander lines of our inland lakes are not boundary lines.

      Jury trial, Branch County Circuit Court,

    October, 1869.
    This was an action of ejectment, brought to recover the possession of eight and 28-100 acres of land, east of and adjoining sixty acres off from the west side of the S. E. 1-4 of See. 13, Town 6, S. of R 7 W., in the County of Branch.
    October 1st, 1866, defendant executed and delivered to the plaintiff, a warranty deed of sixty acres of land, off from the west end of the S. E. 1-4 of Sec. 13.
    On Sec’s. 13 and 24, there is a small lake, between nine and ten acres of which — including the low lands bordering thereon —is in the S. W. corner of the S. E. 1-4 of Sec. 13.
    By the Government survey of this quarter section, the small lake was meandered, and the patent purports to convey “ the S. E. 1-4 of Sec. 13, containing one hundred and fifty and 32-100 acres of land, more or less, according to. the Government survey thereof.”
    The plaintiff claimed that the soil under the lake was still the property of the Government — that the Government survey contains all the land in the quarter section, and that the lake is in no designated section; and that therefore, the language in the deed, “ 60 acres off from the west end of the S. E. 1-4 of Sec. 13,” means 60 acres, evclusive of the meandered portion.

    The proof showed that plaintiff was in the actual possession of all the arable land in the quarter section, west of a certain fence, which would be the eastern boundary of the 60 acres, if the eight or nine acres of lake should be considered a part of the 60; and that he had been in the habit of watering stock at the lake. The defendant, however, claimed that he was not in possession of any part of the lake.
    Several questions were raised, on the trial of the case, which were ably argued, and many authorities were cited; but as the determination of the case, depended mainly on the question of boundary, and the purpose of meander lines, so much only, of the charge of the Court is given, as bears upon this branch of the case.
    The following are among the authorities cited : 1 Wend. 237; 1 Doug. 19; 14 Mich, 53-69; 15 Johns. 471; 2 Johns. 37; 9 Paige, 547; Ang. on Wat. 6 Ed. § § 5, 9, 23, 261, 41, 42; 3 B & S. 732; 36 Barb. 102; Bright. Dig. 466, Sec. 41, Sub. 3; 3 How. 660-3; Lesters' Land Laws, 714; 7 Wallace 272; 3 Ohio, 495; 8 Mich. 18; 10 Mich. 125; 18 Ind. 433; 21 How. 297; 14 B. Monroe, (Ky.) 160; 4 Texas 38; 11 Ill. 279.

      Parsons & Pratt, for Plaintiff.

      Shipman & Loveridge, for Defendant.
   Brown, J.,

Instructed the jury that the deed of the defendant to the plaintiff, purports to convey, not only the dry land in the S. E. ¿ of Sec. 13, but the meandered territory.

“ In arriving at the fact of whether the plaintiff has the 60 acres called for by his deed, the jury will recon as his, all of the land within the section lines, whether the land be under water or not, west of a certain fence, of which evidence has been given, as being the east line of the land in plaintiff’s possession.”

The law of Congress,approved Feb. 11, 1805, provides that all the corners marked in the surveys returned by the Survey- or-General, shall be established as the proper corners of sections or subdivisions of sections which they were intended to designate; and the corners of half and quarter sections, not marked on the said surveys, shall be placed as near as possible, equi-distant from those two corners which stand on the same line.”

The south-west comer of the south-east quarter of Sec. 13, is in the lake, 11 as nearly as possible, equi-distant ” from the south-east corner and the south-west comer of Sec. 13.

Meander lines are run for the purpose of determining how much good and arable land there is in the section or quarter section — how much the Government ought to take pay for.

Verdict for defendant.


author: . Bkown, J.,

text:
    Harrison, vs. Shotwells.
    The recitals In a deed, as to the payment of a consideration, are evidence an between patties and privies to the deed, but not os between strangers to it, where the party introducing the deed, deriving all the title which he has, from 1 he prior registration of such deed, claims to* bo a bona fide purchaser.
    Such recitals are mere admissions, and are not to bo rocoived as evidence aga'nst those who are not privies to the instrument containing them.

      Jury Trial, at Van Buren County Circuit Court,

      Oct., 1869.
    Action in ejectment.
    In 1839, Thomas. B. Millard received from the United Stales, a patent for the N. E. 1-4- of the N. E. 1-4 of Sec. 35, T. 2 S., R. 14 W., in Van Burén County. In 1837, two years before the date of the patent, Millard executed a warranty deed for the same, including in the conveyance lands in 'Barry County, to H. N. Monroe. The deed was, soon after its execution, recorded in Barry County; but was not recorded in Van Burén County, until 1867. Monroe deeded to one Crittenden, and Crittenden, by heirs at law to Harrison, the plaintiff in this suit.
    The defendant's claim of title is as follows: In 1865, Thomas B. Millard executed a quit-claim deed, for the premises in question, to Silliman. Silliman deeded to Mary Conway, Mary Cod way to David Bacon and Bacon to Shotwells, the defendant.
    The proofs showed that no consideration passed from Silliman to Millard, nor from Mrs. Conway to Silliman; and that Silliman and Mrs. Conway knew of the prior unrecorded deed from Millard to Monroe.
    There was no evidence, other than the recital in the deed, that any consideration passed from Bacon to Conway.
    There was evidence tending to show that Shotwells had knowledge, at the time be purchased from Bacon, of the existence of Millard's deed to Monroe.

      G. W. Lawton, and II. F. Severens, for Plaintiff.
    “ The recital of a consideration in the deed from Conway to Bacon was not evidence of the payment of such consideration, as against the plaintiff, who is a stranger to that deed, and . not in privity with the parties to it.
    The defendant who sets up a title by priority of registration and the payment of a valuable consideration, must prove the facts, making his case; and the recital in the deed executed by the grantor, as part of a plan to get a dishonest advantage, is no evidence against the holder of the adverse, regular title. Mowrey, vs. Vandling, 9 Mich., 39; Nolen, vs. Gwynn, 16 Ala., 725; Lloyd vs Lynch, 28 Penn, St. 419; 1 Hilliard on Vendors, 406; Pennrose, vs. Griffith, 4 Binn. 231; 6 Barr. 239; 8 Watts & Serg. 332.”

      E. Bacon, and T. H. Stephenson, for Defendant.
    “ It is incumbent on the party attacking a deed havingpriorily of record, to show notice, or mala Jides, in the party claiming under it. Godfrey, vs Disbrow, et. al., Walker’s Ch R., 260; 13 N. Y, 509.
    Two maxims : Mala Jides, or fraud is not to be presumed.— Every specialty is presumed to have a consideration.
    As to what is a sufficient notice of an unrecorded deed — 4 Mich., 92; 4 Kent Com, 171; 8 J. R., 137.”
    Numerous objections were raised at the triabas to the admissibility of evidence. The defendant’s counsel presented to the Court thirty-seven requests to charge the jury; twenty-seven of which were refused; and among them the following :
    “ 33 — That the deed from Mary Conway, to David Bacon, is *■ prima facie evidence that it was for the consideration therein “ expressed, and that the amount therein expressed, was paid by “ the grantee, to Mary Conway, the grantor.”
   . Bkown, J.,

Instructed the jury, in relatiou to the question involved in this request, in substance, that if they should find that David Crittenden was dead, as claimed by the plaintiff, and that George F. Crittenden, plaintiff’s grantor, was his legitimate and only child, and surviving heir at law, the plaintiff had made out a prima facie case; and that in order to defeat his title, the delendant, claiming in opposition to the prior unrecorded deed, under a subsequent deed from the same grantor, must show affirmatively, priority of record, want of notice of such unrecorded deed, and the payment of a valuable consideration.

.The recitals in a deed, of the payment of a valuable consideration, are evidence as between parties and privies to the deedi but not as between strangers, in such a case as this, where it is necessary that the defendant should show the payment of a valuable .consideration for the deed claiming priority of record. Such recitals are to be considered as mere admissions, and are not to be received as evidence against those who are not privies to the instrument containing them.

Verdict lor plaint iff.

A bill of exceptions has been settled, in this case.


text:
    George K. Newcomb, vs. Henry Miller, et. al.

    Tub lunguagu in C. L., g 5013, “return of the writ,” níosuw, return day of the writ.

      Saginaw County, Circuit Court,

      November 29th, 1869.
    Motion for judgment of discontinuance on the -ground of plaintiff’s neglect to nave his sureties in the replevin bond, justify, after exception.
    Plaintiff insists that the sureties were not seasonably excepted to, the exception having been served more than 20 days after the actual return of the writ, though within 20 days after the return day.
    o endant’s counsel cited, 2 Hill, 357.

      Geo. K. Newcomb, in person, W. L. Webber, of Counsel.

      J. J. Wheeler, lor Defendant.
   Sutherland, J.

The exception was seasonable; the “return ” mentioned in the statute, Sec. 5019 C. L., is the return day.

Though by Section 5022, C. L., judgment of discontinuance for such neglect to justify is required to be rendered. Sec. 5023 gives a discretion to allow anew bond to be filed, with sureties who will justify.

On filing such bond, and the sureties justifying, if exoepted to, and on payment of the costs of this motion, including an :attorney fee of ten dollars, this motion to be denied.


text:
    William E. Walker, vs. Abel A. Brockway and George R. Stark.
    .Boards of Registration, in the discharge of their official duties act judicially,, and are not to be held liable in un action ior damages, for error of judgment. 1
    A person having one-eighth Indian blood, one-fourth, or three-eightlis African, and the rest White, is not, in Michigan, an elector and entitled to vote.
    "The Constitutional provision entitling “ civilized male inhabitants of Indian descent” to vote means that no person shall be deprived of the privilege of voting, because of his being of Indian descent; and was not iutended to make Indian blood of greater avail, ag\ a qualification for voting, than White, when mixed with African.

      November Term, 1869,

      of the Circuit Court for the County of Saginaw.

    The facts in this case may be briefly stated as follows: On $he 31st day oí October, 1868, the defeneants, while sitting and acting as a Board of Registration, at the Dunbar Hotel, in the Third Ward of the City of Saginaw, were applied to by the plaintiff to register his name. The plaintiff claimed the right to register as “ an American citizen of Indian descent,” and was sworn and testified as to his ancestry. The evidence disclosed the fact that the applicant for registration had, at least, one-fourth negro blood ■ in his veins, and not more than one-eighth Indian.
    On the Tuesday following the meeting of the Board of Registration, the plaintiff presented himself at the usual voting place in the Third Ward — that being the day of the general election— •¿and offered to the inspectors of election, two of whom are the ■defendants in this, case, his ballot, asserting his right to vote as “ an American citizen of Indian descent,” but his vote was refused, and this action is brought to recover damages on account of such refusal.
    Authorities cited — 2 Mass., 236; 12 Pick., 485; 11 Ohio, 374; 2 Doug., 411; 1 Denio, 537; 3 Denio, 117; 19 Barb., 22; 21 Barb., 207; 24 Barb., 419.

      Wm. E. Walker, in person, W. H. Sweet of Counsel.

      Gaylord & Hanchett, John Moore and J. Brosseau for Defendant.
   By the- Court,

Brown, J.

The constitution of this- States article' 7, section 1, declares that" “ every civilized male inhabitant of Indian descent, a native of the United States and not» member of any tribe, shall be an elector and entitled to vote.’’

The plaintiff does not claim that he is entitled^ to vote on. the ground that he is a white person, but it is admitted that his legal right — if he has any such right — to vote, rests on the provision of the constitution referred to, to wit: on the ground that he is an American citizen of Indian descent.”

Before proceeding to discuss the plaintiff’s right under the constitution to vote, we will examine the questions presented' by the counsel for the defendants.

1st, Were the defendants, while sitting as a Board of Registration, acting in a judicial capacity; or, rather, were their official acts judicial in their nature; and,

2d If judicial, are they liable in an action for damages for an error of judgment , or even improper and corrupt conduct.

On the part of the plaintiff, the attention of the Court has been directed to Art. 6, Sec. 1, of our State constitution, which provides that “ the judicial power is vested in one supreme court, in circuit courts, in probate courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction maybe established by the legislature in cities.”

From this it is argued that the legislature cannot vest in any court, person or persons, judicial power beyond the provisions of this article, 'and that if the law of 1859, creating a Board of Registration is to be construed as conferring upon said Board judicial power, it is in violation of the provisions of the Constitution just quoted, and therefore void.

If, then, it should appear that the Registration Board act-judicially in dertermining the qualifications of electors,the plaintiff insists that the law of 1859 would be void. If void, it confers no power whatever on the persons assuming to act as a Board; and it would logically follow, that having no power ter act, they could not be held responsible for declining to act. Their responsibility would, in such case, be n'o greater than the responsibility of any other person to whom application might be made for registration.

But it is contended that the Board acts not in a judicial capacity, hut, in the language of the plaintiff, “not strictly, perhaps, executive, but executive and ministerially combined ’’

The attention of the Court has been directed to the constitutional provision that the “powers of the State Government are divided into three departments: the legislative, executive and judicial;” and to the further provision that no person belonging to one department shall exercise the powers that properly belong to another, except in cases expressly provided in the Constitution ; from which it is argued that the judicial cannot be united with the executive power, or with the executive and ministerial. It is claimed that it is the duty of the Board of Registration to administer, not to expound, interpret, or e xplain the law.

In determining whether a person acts in a judicial or ministerial character, it is important to determine the nature of t lie acts to be performed. The law of 1859 prescribes the duties oi the Board of Registration. It enacts that such Board, “ at every session, shall have power, and it shall be their duty, to question every person presenting himself for registration, touching not only his residence, but his other qualifications as a voter These other qualifications are prescribed by law.

. The case of Gordon vs. Farrar et al.. 2 Douglass, 411, was an action brought against the defendants, who were Inspectors of Election for the Second ward of the city ot Detroit, for refusing to receive the plaintiffs vote at an election for the purpose of choosing'a Representative in Congress, held November 4,1844.

Art. 2, Sec. 1, of the Constitution as amended in 1889, and which was in force in 1844, provided that “ every while male inhabitant above the. age of twenty-one years, having resided in the State six months next preceding any election, shall be entitled to vote at such election; 'and every white male inhábil ant who may be a resident of this State at the time of the signing of the Constitution shall have the right of voting as aforesaid," &o.

The statute then in force entitled “ An Act to preserve the purity of elections”made it the duty of the Inspectors, whenever a person should be challenged as unqualified, to tender lo such person an oath, and thereupon to put certain Questions specified in the Act, '• and all such other questions as may test his qualifications as a resident of the town or ward, his citizenship, and his right to vote at that poll.”

Where a person is permitted to establish his qualifications by his own oath, by answers to certain questions prescribed by the statute, the Inspectors would be compelled to receive his vote, leaving them, in such case, no discretion — no opportunity for the exercise of their judgment in the matter. It may be well said that as to those questions the Inspectors would not be acting judcially, simply because they exercise no discretion, po judgment; but are bound by the answers of the person challenged.

It was said, in the case referred to, that the plaintiff was not permitted to establish the fact that he was a white person by his own oath, and thus compel the Inspectors to receive his vete, and that in passing upon that question the Inspectors acted judicially.

The Court then proceeded to decide the case on the ground that the Inspectors cannot be held liable for an error in judgment.

In the case of The People ex rel. of Dean vs. The Board, of Registration of Nankin, 15 Mich., 158, the Court says: “It was the duty of the respondents, when the relator offered to be sworn to his qualifications, to examine him on oath; and xohile they would not be absolutely bound by his statements, they hud no right to reject him ou mere inspection.” If, then, the Board is not bound by the statements of the relator, but is permitted to weigh testimony, and adjudicate upon it, it seems clear that i^ acts in,a judicial capacity, and the 13th section of the Registry Act but confirms this view.

Whether the Legislature had the power to make provision for a Registration Board with power to act judicially I do not deem it necessary for the purpose of this case to determine; but as the question has been raised, it may be well to suggest whether the constitutional provision respecting “judicial pow. ers" does not refer exclusively to th e judicial powers of courts ; in other words, whether it does not mean that all such judieia power as must, from the nature of the case, be exercised by a court, shall be vested in one Suprefiie Court, in Circuit Courts, in Probate Courts, and in Justices oí the Peace, and in such municipal courts as may be established by the Legislature in cities. In the case of Daniels vs. The People, 6 Mich., 388, Judge Campbell, in delivering the opinion oí the Court, says: “ By the judicial power of courts is generally understood 'the power to hear and determine controversies between adverse parties and questions in litigation.” Referring to Story on Const., § 1640, et seq.: “ Although the whole judicial power of the United States is vested in the Federal courts, the power to take examinations and hold to bail has always been vested in certain officers who are not JudgeS of those courts. It was held in ex parte, Gist, 26 Ala, 156, that this delegation was lawful, for the reason that it did not bestow ‘judicial power’ within the meaning of the Constitution."

The case of Kilham vs. Ward et al., 2 Mass., 236, it will be seen by a careful examination, does not in any way decide the question involved in this case. That was a motion for a new trial, predicated upon two grounds :

“ 1. Because the Judge charged the jury that in his opinion Kilhatn, on all the (acts, by the law oí the land, was not an alien and had a right to vote.’’

2. The Judge stated to the jury that an Act passed April 13,1799, providing for confiscation of the estates of certain persons commonly called “ absentees,” ought not to avail against Kilham, because it was not proved on the trial that he was at any time prosecuted and convicted upon said Act for any crime or offense by him committed against the same.

The questions thus presehted were the only ones before the Court. It is true that Story, in the concluding part oí his argument in support of the motion, contended that a mere enor in judgment in a case of this nature, however painful to a party, is not actionable, referring to several well considered cases in support of this claim.

Counsel in opposition to the motion confined themselves, as appears by their brief, strictly to the points presented by the motion as it appeared upon the record.

^Opinions in the case were delivered by Judges Parker, Sew-all, and Sedgwick, and neither of them, so far as I have been able to discover, considered the question raised by'Story, but passed only upon the questions presented by the record. I have been thus particular in referring to this case as in several subsequent cases reference is made to this case as authority upon the question at issue.

The next case referred to is Capen vs. Foster et al., 12 Pick., 485. In that case the learned Judge, in delivering the opinion of the Court, says: “It has been regarded as a question of doubt and difficulty whether, upon strict principle, a public officer who acts honestly' and áceording to the best of his judgment in the .discharge of his duty, and ’vyho, through such honest mistake and error of judgment, denies to the citizen his right of 'voting, should be answerable in an action for damages. But considering the utility of having a plain and perfect remedy in a ease of so much importance, and the difficulty, there would be in trying questions of this sort to judicial determinations were not each individual citizen permitted to vindicate his own particular right as a voter before a competent judicial tribunal, and'considering that the question of damages will always be in the hands of a jury, who will take care to give slight damages, when the object is principally to Settle a really disputed and doubtful right, and when municipal officers have acted honestly and in good faith, it has been decided, upon great considerations of public policy’ that such an action may be sustained.”

In the case of Jeffries vs. Ankeny et al., 11 Ohio, 374, the Court, by Lane,. C. J., says: “ It is generally true that no suit lies against an officer for a mistake in the exercise of his judicial discretion; but when we reflect how highly the privilege of votingis generally valued,and that the Legislature has provided, and the forms of law admit, no other remedy than this action, we unite in the opinion that a necessity exists for entertaining this action.”

It is to be regretted that the learned Judges of the Supreme Courts 6i Ohio and Massachusetts found it necessary, in deciding .the cases referred to, to justify themselves, under the plea of necessity, “ in entertaining an action where, upon strict principle,” it is admitted the actión could not be entertained.

I think the law as laid down in 2 Doug., 411, 1 Denio, 537; 3 Denio, 117, 19 Barb., 22; 21 Barb, 207, and 24 Barb., 419, and a Jong list of well considered English cases, is in accordance with .sound principles and should be adhered to,namely, that a person ■acting in a judicial character should not be held liable, pecuniarily, for an error of judgment.

In this case there is no evidence of corruption on the part of the Board, and acting in good faith, as the Court is bound to presume, in the absence of proof to the contrary, they are not responsible for refusing to register the plaintiff, and not being .registered, he had no right to vote His qualification having been passed upon by the Board of Registration, the Inspectdrs of Election were justified in refusing to receive his vote.

These considerations would be sufficient to determine the .case, but as the plaintiff desires an opinion as to his right to be registered — an opinion as to his legal qualifications as an •elector — I will state briefly my views upon the question.

In the case of The People vs. Dean, 14 Mich., 406, our Supreme Court held that “ all persons in whom white blood so far •preponderates that they have less than one-fourth of African blood are within the meaning of that clause of the Constitution .of Michigan which limits the elective franchise to ‘ white male citizensand no other persons of African descent can be so regarded.”

In that case the Court holds that “ the Cardinal rule of con-, struclion concerning language is to apply to it that meaning •which it would naturally convey to the popular mind, in all cases where the propriety of such construction is not negatived ■by some settled rule of law. In all instruments which are submitted for confirmation to the people themselves, and which derive all their validity from a popular vote, such a construction ■is peculiarly necessary; for otherwise they would be defrauded of the right to frame their own government according to their own will.”

Now, what was the clearly expressed will of the people in the adoption of the constitutional provision relative to electors? Let us apply one more rule of interpretation. It is proper in the construction of. an instrument, if possible, to give effect to ■séhe whole instrument, so that each part shall harmonize and be consistent with every other. Now, apply this rule to Sec. 1 of Art. 7 ot the Constitution of Michigan :-'“In all elections every white male citizen — every while male inhabitant residing . in the State,” &o. What did the people mean by using the word “ white ?” Let the Supreme Court answer: it was to preclude', persons from voting who had even one-fourth African bipod in-their veins; in other words, they are not to vote unless they have less than one-fourth negro blood. But what farther? “Every.civilized male inhabitant of Indian descent, a native of-the United States and not a member of any tribe, shall be an-elector and entitled to vote.” What did the people mean by this? Clearly this, and nothing more: no person shall be deprived of the privileges of the elective franchise because of any' Indian blood he may have in his veins; and that the Legislature-may never deprive such persons of the rights of an elector, we-will incorporate the prohibition into the fundamental law of the State.

Now apply the test. Reconcile the different parts of the-section referred to and what is the result ? The people have-declared,

1. White men shall be deempd electors and permitted to-vote.

2. According to the interpretation of our Supreme Court,no-person, if he have one-fourth or more of African blood, shall be permitted to vote. And

ib Pérsons shall not be denied the privilege of voting because of the Indian blood they may have in their veins.

The conclusion of the Court, then, is that the Board acted in a judicial capacity in passing upon the right of the plaintiff to vote, and is not liable in this form of action; and that the plaintiff, by his own showing, is nor entitled, under the provisions of* the Constitution of Michigan, to vote. Judgment must be entered in accordance with this finding.


author: Upson, J.

text:
    John M. Tilton vs. Henry C. Clark.
    C., a Deputy Sheriff, levied on property of the value of 3375 — $250 in value exempt Judgment debtor declined to make selection, but replevied the whole property. Held, that defendant have judgment for $125, that being the amount in value of the goods over and above statutory exemption.

      Circuit Court, Branch County,

      December, 1869.
    Replevin for span of horses and harness.
    This cause was tried before the Court without a jury. The defendant was a Deputy Sheriff of Bránch county, and as such officer, on the 17th day of September, 1868, by virtue of an execution, issued on a judgment duly rendered in a Justice’s court in favor of one Aaron H. Green, against the plaintiff, Tilton, who was defendant in said judgment and execution, levied on a span of horses and harness, the property of said Tilton, and took them into his possession. Tilton, the plaintiff herein, claiming the property as exempt from execution, the Deputy Sheriff, on the same day of the levy, made an inventory of the property so levied on, .and caused the same forthwith to be appraised as provided by law. The horses were each appraised at $200, and the harness at $30, making in all $430; and thereupon, on the same day, September 17,1868, said officer notified Tilton of said appraisement and requested him to make his selection from the inventory, pursuant to §§ 4466, 4467, and 4469, C. L., to the amount in value exempted. Tilton refused to make any selection, and on the same day, before any further proceedings were had by the officer, replevied said horses and harness from him in this suit.
    It further appeared that Tilton was a married man, and by occupation a farmer, though not, at the time, occupying any farm, but stopping temporarily with his father-in-law, and assisting him some on his farm, preparatory to removing to Kansas to settle, where he has since gone. It also was proved that these horses were the only team he had to enable him to carry on his business of farming.
    No question was raised as to the validity of the judgment and execution, or the fact of the levy by virtue thereof; but they were admitted in evidence without objection, the plaintiff relying wholly on his claim of exemption under the statute.
    The testimony as to the value of the property was somewhat conflicting.

      E. G. Parsons for Plaintiff.

      M. S. Bowen for Defendant.
   By the Court,

Upson, J.

Under the evidence, I find the value of the property to be $375. The plaintiff was entitled to the benefit of the exemption under subdivision 8 oí §4465, C. L., not exceeding in value $250. The value of the property replevied being $125 more than the amount of the exemption, and, under the circumstances of this case, the plaintiff not having been entitled to the whole property as specifically exempt under the statute, but only to an exemption not exceeding in value $250, and haying elected to bring replevin for the whole property, claiming it all as specifically exempt, instead of bringing an action for damages, he is not entitled to recover.

The defendant, under the evidence, was shown, at the time the suit was commenced, -to have had a lien upon, or special property in the horses and harness so levied upon to the amount of $125, being the 'amount in value of the property over and above the amount of the statutory exemption to the plaintiff, who was the general owner of the goods. Utider §5033, C. L., in regard to the action of replevin, the defendant is entitled to judgment for that amount, with costs, the property having all been replevied and delivered loathe plaintiff.

See § 4465, subdivision 8, C. L.; also, argument of the Court on the homestead exemption clause in Const, of 1850, not exceeding in value $1500, in Beecher vs. Baldy, 7 Mich., 499, 500, 501, 502; also, § 5033 C. L., and Green's Prac., p. 178, § 582.

Judgment accordingly.


text:
    Rudolph Brand and Guido Marx vs. Jacob Steckert.
    Whether, to establish the illegality of a sale of spirituous or intoxicating liquors, it is necessary to show it is not within the exceptions of the statute, tjuerc.

    The question of the validity of a contract is to bo touted by the laws of the place where it is made, unleps it is to bo performed at another, in which case it is governed by the law of the latter place.

      Circuit Court, Saginaw County,

      August 2, 1869.
    The plaintiffs bring this action to recover $300, the balance February 10, 1869, of áccount for vinegar and intoxicating liquors, and for the barrels and kegs containing them.
    An agent of the plaintiffs called on the defendant at hi's place of residence in East Saginaw, in this State, and solicited an order on the plaintiffs for articles of these descriptions, and the •defendant ordered the goods in this account, at certain prices then agreed on, the goods to be shipped by the plaintiffs from their place of business in Toledo, Ohio, to the defendant at his •expense. He paid the freight on receiving them.
    There is no evidence relative to the business of either party except as indicated by this transaction, nor the purpose or use 'for which the liquors in question were bought.

      Webber & Smith for Plaintiffs.

      Peek (fc Clark for Defendant.
   Sutherland, J.

If all sales of intoxicating liquors are prima facie in violation of the statutes on that subject, and the sale to the defendant is governed by the laws of this State, the plaintiff ■cannot recover. Otherwise his right is clear.

The provision of the statute prohibiting sales of such articles is,11 that no person shall be allowed to manufacture or sell, at an y time, by himself, his clerk, servant, or agent, directly or indirectly, any spirituous or intoxicating liquors, or any mixed liquors a part of which is spirituous or intoxicating, except as hereinafter specified.” $ 1661 G. L. (L. 1861, p. 472).

§ 1672, G. L., provides a manner in which persons of a certain class may acquire an immunity to sell for medicine, as a chemical agent in scientific, mechanical, or manufacturing purposes, and wine for sacramental purposes.

If the plaintiffs were entitled to this immunity, and this sale was covered by it, or if the defendant was entitled to it and made this purchase with no other view but lawfully to enjoy it, in neither case would the sale be in violation of law. The former would be within the letter of the statute granting exemption frotn the penalty, and the latter is equally within its purpose and protection. Jackson vs. Collins, 3 Cow., 89; Edwards vs. Dick, 4 Barn, and Ald., 212.

In Myres vs. Carr, 12 Mich., 63, the rule is recognized that in declaring on a statute, where there is an exception in the enacting clause, the pleader must negative the exception; but the pourt was divided on the question whether the burden of proof is, in general, on the seller qf spirituous or intoxicating liquors, to make his sale'out tb have been legal. The reasoning on which two Judges held the burden to be on the seller is that the rule requiring an exception in the enacting clause to be negatived by the party that relies on the statute does not apply to an exemption in a proviso to the enacting clause. Attorney General vs. Oakland County Bank, Walk. Ch., 90; Teel vs. Fonda, 4 John, 304; 8 John., 41; 3 John., 438; 1 John., 513. The difference is very clearly stated: “An exception excludes in express terms the thing excepted from the statute, leaving it as before the statute. A proviso only exempts a thing within the statute from its operation in certain circumstances, or on certain conditions.” It seems immaterial whether the exception be in the sanie section, or in a preceding section, or a preceding act, if referred to in the enacting clause. 1 Saund., 262 — note “ a.’’ I have found no other cases than those cited making any distinction between an exception and an exemption in a proviso, contained or referred to in the enacting clause. It is stated in the note referred to: “ It seems clear that whenever a statute inflicts a penalty for an offense created by it, upon conviction before one or more Justices of the Peace, but there is an exception in the enacting clause, of persons, tinder particular circumstances, it is necessary to state that the defendant is not within any of the exceptions.” See Rex vs. Jarvis, 1 Barr, 148. Many instances are given, which are principally cases of exemption by proviso-according to the definition of Judge Manning. The question is one of some difficulty, and I shall express no opinion upon it.

But allowing that the sale, if governed by the statutes of this State, is prima facie illegal, it remains to be seen whether this transaction is governed by those statutes.

The rule is that'the law of the place where the contract is made is to control it, unless it appears that it was made to be performed at some other place; then the laws of the latter place govern. 1 Cow., 103; 6 Hill, 526. See Greenwood vs. Curtis, 6 Mass., 358.

The contract, according to these principles, is governed by the laws of Ohio. In contemplation of law it was to be performed there. The property was to be there delivered tp a carrier for the defendant. A delivery to the carrier was a delivery to the defendant. 38 Me., 553. See 3 R. I., 175.

This construction of the contract is supported by Myres vs. Carr, 12 Mich., 63. In that case the agreement to purchase was made in New York, consummated by a delivery in this State. It was held, unanimously, to be governed by the laws of this State.

The transaction between these parties, for the same reason, is governed by the laws of Ohio. Such a sale must be deemed lawful there in the absence of proof to the contrary.

Judgment for plaintiff, principal and interest, $310.


text:
    The People vs. Clement Pray.
    It 1b uo less a false pretense, within the statute, that the purty imposed upon might, by common prudence, have avoldfd the imposition.

      Cass County Circuit Court,

      January 20, 1870.
    The information in this case charges “ that on the 25th day of December, A. D. 1868, at the village of Dowagiac, in the county of Cass, Clement Pray did falsely and feloniously pretend to Charles A. Thompson, of the firm of Thompson & Son, that J. Wilford Thompson was in the habit of giving him, the said Clement Pray, credit at the store of said Charles A. Thompson <fc Son, by means of which said false pretenses the said Clement Pray did then and there designedly and feloniously.obtain from the said store of Charles A. Thompson & Son one shirt, of the value of two dollars and fifty cents, of the goods, chattels, and property of them, the said Charles A. Thompson & Son, with intent the said Charles A. Thompson & Son then and there to cheat and defraud.”
    The information concludes with the usual special averment, negativing the pretenses.
    The respondent demurs to the information, on the ground that it does not charge any legal offense; and on argument, assigns as cause of demurrer the following:
    1. That the pretense that J. Wilford Thompson was in the habit of giving respondent credit at the store of Charles A. Thompson & Son was not, if true, any reason why he should have further credit, and constituted no basis of credit; but, on the contrary, unless accompanied — as it was not — by the averment that he had justified such credits by\payment at maturity, was a good reason why he should not have further credit.
    2. That pretenses of the falsity of which, if they be false, the complainant has the means at hand of detecting are not within the purview of the statute; and the complainant, Thompson, had such means in his account books, which would show whether: respondent had any account or credit in or on them.
    3. It is not shown in the information -that said J. Wilford Thompson had any connection, as clerk, partner, or otherwise, with the said store oí Charles A. Thompson & Son.

      4. The pretense i charged was one which was not only not calculated to deceive a man of any degree of caution or sagacity into giving a credit to the respondent, or into selling him the goods on credit, but was directly calculated to induce and prompt said Charles A. Thompson to inquire, and ascertian from his books, and from the respondent himself, whether the pretense was true, and whether he had paid for any goods he had theretofore bought on credit; in other rvords, was directly calculated to put said Thompson on inquiry, and nothing more.
    5. It is not averred that the respondent requested any credit .of said Thompson & Son; nor does it appear that the credit, was not given voluntarily and without regard to the pretense.

      6. As it is material to prove that the said Thompson believed and relied upon the pretense, it is necessary that that fact be expressly averred in the information, which is not done.

      Geoipe Miller, Pros. Attorney, for the People.

      J. B. Clark for Respondent.
   By the Court,

Brown, J.

The main ground relied upon in support of the demurrer is that the alleged pretense would not furnish a reason why the owners of the goods should part with them — that no man of ordinary discretion could be thus induced to give credit.

The authorities upon this point are by no means uniform; one class holding that the false pretenses must be so artful, that they are “ calculated to impose upon a person using ordinary caution in the transaction,’’ while another class are upon the theory that the statute is made for the benefit of not .only the shrewd business man, but also for the credulous and unsuspecting.

In the case of The People vs. Williams, 4 Hill, 9, it is held that though the representation be false, it" is not within the statute unless calculated to deceive persons of ordinary prudence and discretion. In the case of the Commonwealth vs. Hutchinson, 2 Penn. Law Jour., 243, the learned Judge says: “ Broad, however, as is the phrasé, ‘ for any false pretense whatever,’,it still has a legal limit, beyond which it cannot be carried in this or any; other case. It extends no farther than to a case where a party has .obtained money or property by falsely representing himself to be in a situation in which he is not, or any occurrence which has not happened, to which persons of ordinary caution might give credit. Where the pretense is absurd or irratic.nal, of such as the party had at the very time the means of detecting at hand, it is not within the Act.” The same doctrine is held in the case of 3 Hawks, 620; 4 Pick., 177, 178; 14 Wend., 549 note; 2 Parker, 139, 147; 11 Ind., 154; 11 Wend., 566; Carrow vs. State, 7 Eng. (Ark.), 65; 3 Hill, 169; Goodhall's case, Ry. and Mood. Cr. Cas., 461, 463; Rose. Cr. Ev., 362; Young vs. The King, 3 Term R.

The best considered English and American cases, however, seem to hold a different doctrine.

It being remarked that the “pretense should be such as would deceive a man of average intelligence,’’ Lord Denman, C. J., answered : “ I never could see why that should be. Suppose a man has just enough [1'iaud] to impose upon a very simple person, and defraud him: how is it to be determined whether the degree of fraud is such as will amount to a misdemeanor?’’ R. vs. Wickham, 10 Ad. and E., 34. In the case of R. vs. Wooley, 1 Den. C. C., 559, it was held that want of prudence on the part of the prosecutor is no defense where the prosecutor was really imposed upon. See, also, R. vs. Ball, 2 Russ, on Cr., 289; 1 C. and Mars., 240; R. vs. Abbott, 2 Car. and Kir., 629; S. C., 1 Den. C. C., 273. In Pennsylvania it is now held that- “ it is no less a false pretense that the party imposed upon might, by common prudence, have avoided the imposition.’’ Com. vs. Henry, 10 Harris, 256. In New York the position of the earlier courts has been greatly qualified. See 4 Denio, 529; 4 Barb., 151; 5 Parker, 142. In § 416, 2 Bishop's Cr. L., 8d Ed, occurs this language: “ No man of business was ever found so wary as not to commit, at some time in his life, a mistake therein which any jury of twelve men would say, on their oath, could not be done by a man of ordinary judgment and discretion. These things being so, plainly, the Court cannot direct a juily to weigh a pretense, an argument, an inducement to action, in any other scale than that of its effect.”

It would seem that the design of the statute was that its provisions should bo sufficiently broad to protect the weak and shield the credulous against the arts and wiles of the shrewd, designing, and artful. With this view of the case, the information must, in this respect, be held sufficient.

Is there a sufficient averment that the prosecutor relied upon and believed the alleged pretenses to be true ? Such belief is an essential ingiedient of the offense — 4 Barb., 151; R. vs. Mills, 40 E. L. and E., 562; and upon principle it would seem that.it should be positively averred. But as the prosecutor has followed substantially the language of the statute in describing the offense, and the precedents which have so long been in use both in this country and in England as almost to become a part of the law, I do not feel warranted in sustaining the demurrer upon this ground.

The demurrer must be overruled.


author: Ramsdell, J.

text:
    The People vs. Geo. Vanderpool.

      A defendant brought into court to answer to an information has a right to compulsory process for witnesses, and to a reasonable time for its service and return, after the filing of such information.

      Manistee Circuit Court,

      December, 1869.
    In this case a motion was made for a continuance until the next term of the court. The affidavit of the respondent, on whidi the motion was predicated, in addition to the usual clause of merits, names of witnesses and the materiality of their testimony, sets forth that “ said cause was commenced on the 21st day of December inst., by the Prosecuting Attorney of said county filing an information in said Court charging this deponent with the crime of murder; that until the filing of the information as aforesaid the affiant did not know that he should be charged with any crime in said Court, and, therefore, has had no opportunity to prepare for his defense in the trial of said cause. And affiant further says that until he put in his plea of not guiity there was no issue joined in said Circuit Court, and until after such issue was joined this deponent could procure no valid subpoena issuing out of and under the seal of said Court to procure the attendance of said witnesses; and this deponent further says he has used all the means within his power to procure the attendance of the aforesaid witnesses on the trial of said cause, but has been unable so to do; that a subpoena for said witnesses was duly issued out of and under the seal of said Court on the 22d day of December inst., and' immediately placed in the hands of Charles Secor, Sheriff of said county, who has failed to serve the same. And this deponent further says he is informed and believes said witnesses are within the jurisdiction of this Court.’’

      A counter affidavit was filed, showing that the witnesses named were within one hundred miles of the Court.

      -Builis for the People.

      Ramsdell & Benedict and S. W. Fowler for Respondent.
   By the Gourt,

Ramsdell, J.

Under our statute defendants brought into court to answer to an information filed therein have a right to compulsory process to compel the attendance of their witnesses, after the filing of the information, and to sufficient length of time to have such process served and returned. The affidavit of defendant, as modified by the counter affidavit, shows good grounds for a postponement of the trial to a future day in term, but is not sufficient to entitle the defendant'to a continuance until the next term.


author: Patciiin, J.

text:
    John Wilson vs. George W. Patterson.
    When, in an affidavit, it is necessary to swear to tho advice of counsel, the statement that the-person making the same has “ fully and fairly stated all the fads he expects to prove in said cause” is insufficient.

      Wayne County Circuit,

    January, 1870.

      George H. Penniman for Plaintiff.

      L. T. Griffin for Defendant.
   By the Gourt,

Patciiin, J.

This is a motion to set aside 3 nonsuit. On a former hearing of the motion the plaintiff was required to make an affidavit o.f merits, and he now comes into court with an affidavit, stating that it is based upon advice of counsel to whom he has fully and fairly stated all the facts he expects to prove in said pause.” It is objected by the opposing counsel that this is not sufficient as an affidavit of merits, and that the party should not pnly state to his counsel the facts he expects to prove, but ail the facts in the case, so that the counsel could properly advise whether there are real merits in the case or not, for the reason that real merits are not based upon a partial statement of facts, but upon a disclosure of all the facts bearing upon the case. It seems to be held by the authorities on this subject, without- exception, that in stating facts to counsel for the purpose of making an affidavit of merits there must be a full, fair, and frank statement of all the facts in the case. Vide 1 Hill, 644; 19 Wendell, 617; 22 Wendell, 636; Green's Prac., 309; 1 Abbott's Digest, 57.

To allow an affidavit of merits based upon the advice bf' counsel to be used at all would seem to me to be extending the rule of evidence quite as far as any Court ought to be called upon to do. It is an ex parte, unsworn statement of the pmty in interest to his paid attorney, upon which statement that attorney gives an opinion, and that party in interest puts it in the form of an affidavit; and upon this the Court is called upon to act judicially, It is cl&ir such evidence as that should be confined within the strict letter of the law by which it is authorized. But it would seem that counsel upon either side had overlooked rule 59’of Circuit Court rules, which provides what shall be stated in an affidavit of this kind. The rule is as follows:

‘•Whenever it shall be necessary in an affidavit to swear to the advice of counsel, the party shall, in addition to what has usually been inserted, swear that he has fully and fairly stated his case to his counsel, and shall give the name of such counsel.”

The motion must -be denied, with costs, with leave to renew upon filing a proper affidavit of merits.


text:
    Benjamin Zeller, Plaintiff in Error, vs. D. Wayne Harris, Defendant in Error.
    A noto payable to order, indorsed in blank, like a note payable to bearer, gees by delm-ry; and possession proves property in both cases.
    The non-joinder of joint contractors or obligors, as parties defendant, must betak'-n advantage of, il at all, by plea in abatement.

      Cass County Circuit Court,

      January, 1870.
    This case comes up from Justice’s Court on a writ of ccrtioran'i.

    Harris, the plaintiff in the Court below, brought suit on an instrument of which the following is a copy:

      “ $58 50. South Bend, Ind , April 2, 1868.
    “ Six months afterdate, for value received, we promise to pay to the order of S. H. Bell fifty-eight dollars and fifty cents ($58 50), without interest if paid when due; if not so paid, then with interest from date, waiving all benefit of valuation or appraisement laws, with five per cent, attorney’s fees if collected by suit.
    “ BENJAMIN ZELLER, “JOHN BARBER.”
    Tiiis paper is indorsed, “ Steward H. Bell.”
    The summons was issued against Zeller alone. The plaintiff filed as his declaration the paper referred to. The defendant plead the general issue, and gave notice that on the trial of the cause he would give in evidence and show that the note was given for a mare warranted to be with foal; that she was not so with foal; and that by reason of the premises he, the defendant, had been greatly damaged.
    On the trial of the cause the plaintiff gave in evidence the writt en obligation, and testified that he “ bought the note before maturity, and*'paid the full amount of the same.”
    No evidence was given as to the indorsement by Steward II. Bell.
    On the part of tne defendant evidence w7as given tending to show a warranty and a breach of the same.
    Upon this point the testimony was conflicting, and the Justice found, as a matter of fact, that the property was not warranted, and rendered judgment against the defendant Zeller for the full amount claimed.
    The following are the grounds of error alleged:
    •• 1. Said Justice erred in rendering judgment in favor of said plaintiff because no evidence was offered tending to show who wwote the name ‘ Steward II. Bell’ on the back of said note mentioned in plaintiff’s declaration.
    2. No evidente was offered to show that said note was ever assigned to the plaintiff.
    3. No evidence was offered tending to shorv that the piayee of said note ever legally ordered the same to be paid to the-plaintiff.

      “ 4. The judgment was against one defendant only, the note being a joint note.
    “5.. John Barber, the joint maker of said note, was not mentioned in the judgment.”

      E. Bacon, attorney for plaintiff in error,
    cited Smith vs. Chester, 1 T. R., 654; Chitty on Bills, 252, 628; C. L, §§ 3767, 3714, 3812, 4502, 4506, 3656; Ness. L. 1863, p. 102.

      C. M. Aboard attorney for defendant in error,
    cited C. L., §§ 3714, 3767; 8 Mich., 132; 5 Mich., 26; 1 Parsons on Contracts, 242; Chitty on Bills, 8 Lond. Ed., 252; 1 Wen., 164; 32 Barb., 551; 40 Barb., 94; 44 Barb., 456; 1 Chitty Pl., (Ed. 1837,) 47.
   By the Court,

Brown, J.

I have some doubt whether the instrument declared upon is a promissory note, and weie it not for the decision in the case of Smith et al. vs. Kendall 9 Mich., 241, I should be of the opinion that it was not. I do not, however, think it necessary to declare what the instrument is for the, purposes before us. If it is not a promissory note, then there-is no force whatever in the first allegation of.error.

The paper declared upon, whatever it may be, is payable-to order, and íb indorsed by the payee in blank.. In the case of Peacock vs. Rhodes, 2 Doug. (Eng.), 633, Lord Mansfield said: “I see no difference between a note indorsed in blank and one payable to bearer. They both go by delivery, and possession proves property in both cases.” See 1 Burr, 452; 3 Burr, 1516; and cases cited in note “M," 1 Parsons on Contracts, 5th Ed., 242.

While some Courts have held the necessity of proving the signature of the indorser, I think the decided weight of authorities is the other way. Possession, then, must be taken as prima facie evidence of ownership for a valuable consideration. This view of the case disposes of the first, second, and third alleged grounds of error.

The fourth and fifth allegations of error raise the question whether judgment could be properly rendered against one only of two joint debtors.

An interesting case is cited in 1 Saunders R., 291, note 2. The case was this: “ Debt against J. N. on bond. It appealed on oyer that there were two other obligors, whereupon defendant prayed judgment of the writ because the bond was joint and the others were not named ; et non allocatwr. The defendant then pleaded that it appeared by the bond that the other two are hound who are not named. Judgment of the writ, etnon allocatur ; for it is not the form, of pleading, but defendant should aver that the other two executed the bond who are in full life not named. Judgment of the writ.” And of such opinion was the whole Court.

It is true the rule laid down in. the books is that the plaintiff must join as defendants all the parties who are joint obligors or contractors; and it has been held that where, in an action against one joint obligor, it appears on the face of the declaration or other pleading of the plaintiff who the other joint obligors are, and that such other joint obligors are still living, the Court will arrest the judgment; because the plaintiff himself shows that another ought to bé joined, and it would be absurd to compel the'defendant to plead facts which are already admitted.

My examination of the authorities has been somewhat hasty, and I have found no case where a judgment has been arrested on the ground of non-joinder unless the plaintiff’s pleadings showed that some other person should have been joined, and that such person was still living, or unless the defendant had inter* posed a plea in abatement. But it may be said that the note or instrument in question is unlike most of the undertakings upon which decisions have been made upon this point in this, that the one under consideration is a joint undertaking, and not joint and several.

Does proof of a promise in the words “ we promise to pay” support and prove a promise by one joint promisor alone?

In the case of Rice vs. Shute, 5 Burr, 2611, Lord Mansfield is quoted as saying: “All contracts with partners are joint and several; every partner is liable to. pay the whole. In what proportion the others should contribute is a matter merely among themselves.” And in the’ case of Tooker vs. Bennet & Brower, 3 Caine's R., 4, Livingston, Jr, says: “ A joint debt is the debt of each as well as of all the partners.” In the case of Rice vs. Shute the question was whether, if one of two partners was sued alone, he could, on the trial, nonsuit the plaintiff by showing that there was another person who ought to have been joined as defendant; and it was held that advantage of the non-joinder could be taken only by plea in abatement.

Although Lord Mansfield has often been quoted as authority that the words “ we promise to. pay” mean “ we promise jointly and severally to pay,” Spencer, Ch. J., in the case of Robertson vs Smith, 18 Johnson, 459, says: “It would be straining Lord Mansfield’s opinion unreasonably to say he meant, technically, that all contracts with partners -were joint and several, for then •the non-joinder of any of the partners never could be pleaded in abatement,- which all the Court expressly decided.” Judge Cady, in his brief in the case in 18 Johnson, in commenting on the language of Lord Mansfield, says: “ When, therefore, he says all contracts with partners are joint and several, he means no more than that if one party were sued, and did not plead the non-joinder of his copartner in abatement, the contract should be •considered so far several that he should not, on the trial, be permitted to show that the contract was joint in order to defeat the plaintiff’s action.’’

Though, technically, the promise in the instrument upon which suit was brought in this case is not several, yet,-as the •two persons whose names are subscribed to it are to do but one thing, when that is done — when the obligation is paid — though but by one, the other is discharged from further liability to the holder of the paper. Each, before the rendering of the judgment, in this case, was bound for the full payment; and this is the meaning and scope of their promise.

' In this case the paper writing showed the subsisting indebtedness of both Zeller and Barber. Zeller, by his pleading, put in issue his alleged promise; and though it appears that another promised with him, as he (Zeller) did not elect to avail himself of the benefit of a plea in abatement, he is estopped from further .questioning his liability. The judgment against him is a bar to any proceedings by the defendant in error against Barber, for, as to him, he has suspended his remedy by changing the indebtedness against both to a debt of record against Zeller.

With this view of the case, it becomes unnecessary to examine the statutes referred to by counsel on the argument. X do not conceive that they have any bearing on the question before us.

The judgment of the Court below must be affirmed.


text:
    James McGonegal vs. A. William Smith and Johannah Smith.
    Motion to allow nn appeal from Justice's Cotirt after five days from rendition of judgment will be denied unless itnppeartliattho party applying for tbe order wus prevented from taking bis appeal sooner by circumstances not under bis control.

      Wayne County Circuit,

      January, 1870.
    For motion, S. Lamed and F. A. Baker.

    "Contra', II. M. Cheever.

   By the Court,

Patciiin, J.

This is a motion by defendants for an order 'allowing an appeal from a judgment rendered by a Justice of the Peace alter the expiration of the five days allowed for appeal by statute. G. L. § 3842.. The statute gives the Circuit Court power to allow an appeal after the expiration of the time when the party making the appeal has been prevented from taking the same by circumstances not under his control.

Affidavits have been filed in support of and in opposition to the motion; by wfiich it appears that both parties were present in the Justice’s Court at the return day, and the pleadings were put in and the case adjourned to another day, at which time the defendants appeared and demanded a nonsuit, which was refused by the Justice, when A. W. Smith, one of the defendants, left, and his wife, the other defendant, remained. Five minutes after the time the plaintiff came in, claiming that by his watch it was not past time, when the Justice set the case for two P. M. of that, day, and plaintiff left, after which the defendant A. W. Smith came back, and, as he swears, was directed by the Justice to see plaintiff and make some arrangement when the case should be heard. The Justice swears he told defendants the case was set for two P. M., whereupon the defendants left and paid no more attention to the case, and knew nothing of it until execution was issued on the judgment and the five days had expired.

It is olear the statute does not contemplate giving the power to the Circuit Court to allow an appeal unless it should appear to the satisfaction of the Court that the party making the appeal has been prevented by circumstances not under his control. If the testimony of the Justice be correct, the defendants are clearly not entitled to any relief. If the testimony of the defendant be true and he had understood his legal rights as he was bound to, it was certainly in his power to ascertain the condition of the suit, and it was his duty so to do, and having failed in his duty in that regard, the Court has no power to interfere. The motion must, therefore, be denied, with costs.


text:
    The People vs. Smith.
    To constitute murder in the first degree the killing must be deliberate and premeditated; but the length of time before the act when this purpose is deliberately formed and the act premeditated is unimportant. It is enough if the'purpose is deliberately formed and precedes and induces the act.
    To constitute murder in the second degree there must be an unlawful killing, and a purpose to kill preceding and accompanying the act, formed suddenly, without that deliberation and premeditation which distinguish murder in the firstdegree, butnotsuch sudden provocation and stirring of the passions as preclude the entire exercise of reason.
    The desire and intent to take human life without provocation or necessity is such a state of mind as the law denominates malice.
    To exempt a person from legal responsibility on the ground of a derangement of the mental faculties, such derangement must be such as to prevent intelligent volition in respect to the act with which he is charged. He should have, as necessary to liability, so much memory and power of perception and reflection as will enable him to identify his acquaintances, to recognize his relations to them, to understand as ordinary minds do the nature anduscs ofmaterial objects around him, and to appreciate the obvious and universal obligation to abstain from violence and bloodshed in the peaceable intercourse of his neighbors with him.

      Muskegon County Circuit Court,
    January, 1870.
    The respondent in this case is charged with the murder of Joshua Platt. The homicide is admitted; defense, insanity.

      Smith, McReynolds and Nims for the People.

      Baker, Thompson and Eggleston for Respondent.
   Charge of the Court,

Sutherland, J.

Gentlemen oe tiie Jury : The sfatute which prescribes a punishment for murder would be only an impotent threat against the guilty were there no judicial' instrumentalities by which the accused could be apprehended, tried, and, if found guilty, delivered to be punished.

The safety of communities, which that law is designed to secure, can only be realized by its faithful execution. There is an imperative necessity for a prompt arrest of persons accused and thorough and impartial trial to ascertain their guilt or innocence. The enforcement of criminal laws in a manner most conducive to the public welfare- depends, in a very important sense, on th6 fidelity, intelligence, and moral courage of jurors, on whom devolve? the duty of deciding, upon testimony, the truth of every criminal accusation. If, through a want of judgment, or by failing to appreciate the relation of their duties to the general good, or if through extreme sensibility, in view of the possible consequence of a conviction to the prisoner, they acquit the guilty, the laws against crime are thereby suspended. Such culpable mistakes would be an evil example to,.the whole class of depwaved men inclined to crime. On the other hand, if, through inattention to the testimony, or by-a careless and precipitate judgnpeut, a jury pronounce' an innocent man guilty, the wrong is no less serious. There is, therefore, no- escape from grave responsibility.

To enable a jury to pursue their inquiry with a definite aim the law is explained to them by the Court. They are thus informed what facts must be found to warrant a conviction. With these facts, as points Constantly in view, they should weigh the evidence, and pronounce according to the result to which that evidence conducts them.

In this case the respondent is charged with murder, which is the unlawful killing, by a person of sound mind and discretion, of a reasonable creature, it being with malice aforethought. It consists, under our statute, of two degrees. Those cases among others in which the unlawful killing is deliberate and premeditated are of murder in the first degree. Those cases in which there is an unlawful killing with malice aforethought, but not committed with deliberate premeditation, and cases in which malice is implied from the killing in the commission or attempt to commit some other felony than arson, rape, robbery, or burglary, are of murder in the second degree.

To bring this case within the first degreé the jury must find that there was malice aforethought evinced by a deliberate and premeditated purpose to kill. It is unnecessary that this deliberation should continue for any particular time, but a deliberate purpose should be shown to exist in the prisoner’s mind before and at the time of the act. In short, the statute expresses it as clearly as words can. The killing must be deliberate and premeditated. The length of time before the a,ct when this purpose is deliberately formed and the act premeditated is unimportant. It is enough if the purpose is deliberately formed and precedes and induces the'act.

The correlative view of murder in the second degree, passing over, as inapplicable to this case, other features of it, may be thus stated: there must be an unlawful killing, and there must be a purpose to kill, preceding and accompanying the act, formed suddenly, before the killing, and without that deliberation and premeditation which distinguish murder in the first degree. And there must not be such sudden provocation, heating the blood, stirring the passions, and precluding the exercise of reason, as would, in a legal sense, exclude the idea ot malice aforethought, and thereby reduce the homicide to manslaughter.

To constitute murder in either degree the homicide must have been committed with some degree of coolness and deliberation, or, at least, under circumstances in which ordinary men, or the average of men recognized as peaceable citizens, would not be liable to have their reason clouded or obscured by passion; and the act must be prompted by, or the circumstances indicate that it sprung from a wicked, depraved, or malignant mind — a mind which, even in its habitual condition and when excited by no provocation, would be liable to give undue control to passion in ordinary men — is cruel, wanton, or malignant, reckless of human life, or regardless of social duty.’’ 10 Mich., 219.

There must be, I repeat—

1. An unlawful killing of a human being. Every killing is unlawful if done without legal excuse or justification. A killing by accident and without fault, even negligence or in self-defense is excusable; if done by command of competent authority, it is justifiable.

2. ■ There must be malice aforethought, which is the malignant intent to take life without excuse or justification, and without being prompted to it by heat of blood on reasonable provocation — the state of mind which has just been described. No person can properly take the life of another otherwise than in self-defense, or by legal command, or on the impulse of sudden passion caused by some sufficient provocation, unless he is actuated by a wicked and malignant disposition.

The desire and intent to take human life without provocation or necessity is such a state of mind or disposition as the law denominates malice; and the law imputes to every person who is responsible for his acts an intention to do and accomplish what naturally and immediately results from his voluntary acts.

The information charges that the prisoner, of ■ his malice aforethought, killed Joshua Platt on the 29th day of July last, at the township of Oceana, in this county.

It is proved beyond dispute, and prisoner’s counsel admit, that at the time and place stated the prisoner did kill Joshua Platt.

That act was committed without pretense of provocation, excuse, or justification.

Was it done with malice aforethought? The prisoner, by his defense, says, “No, because I was insane.”

If he was not insane, and at the time and place mentioned in the information he saw Joshua Platt, stood in no fear of him, was excited by no sudden provocation sufficient to obscure the reason of an average man, and he held a gun that he knew contained a deadly charge — if, with such accompanying facts, the prisoner purposely and voluntarily discharged that gun at a vital part of Platt’s body, at short distance from him, so that death at once ensued, the law would infer that he meant what such voluntary act would naturally accomplish; that if the prisoner voluntarily did such act as would, naturally produce death, and did produce it, he intended it. If, undei such circumstances, that intention is shown to have been, and the jury-find it was, deliberate and premeditated, even for a moment immediately before the discharge of the gun, the killing would be murder in the first degree. On the other hand, if it was a purpose formed suddenly, in great excitement — such as prevented deliberate premeditation — then, as there has been no such provocation proved as can reduce the killing to manslaughter, the offense was murder in the second degree.

But if the prisoner was insane, he was incapable of entertaining an intent, and, therefore, incurred no guilt at all, and should be acquitted.

In the absence of any proof on the subject of the prisoner’s mental condition he could be presumed to have been sane; that is the natural state of adult minds.

Testimony has been submitted on the defense to show that the prisoner’s mind yas not in a natural state, and on the side of the people to show he was sane when he fired the gun at Platt. This is a very important and decisive question, and it is, therefore, desirable that it should be made as definite as possible.

Jurors are usually instructed in respect to Buch a defense that the prisoner is responsible lor his acts if he was in such state of mind as to comprehend his relations to other persons, the nature of the act which he committed, and its criminal character, as against the laws of the land; in short, if he was conscious of doing wrong. 1 Bish. Cr, L , § 293.

It must be apparent, therefore, that before the defense of insanity can be properly accepted by the jury as established it must be supported by proof that satisfies the jury that there was, at the time óf committing the act in question, such mental derangement as rendered the prisoner incapable of distinguishing between right and wrong in respect to that act. This irresponsible condition might result from such a degree or kind of mental disease as destroys the capacity to comprehend that death could be produced, or was likely to be produced, by shooting a gun loaded with buckshot, or as created a delusion producing a firm belief of such a state of facts as would, if true, render the killing an excusable and justifiable homicide. That irresponsible condition, to use the language of the Supreme Court in a late decision, will be established if the jury find there was such “ diseased action of the prisoner’s mental faculties that he did not know what he was doing; or if conscious of this and yet was not conscious of any object in doing it; or if he did not know that what he was doing or the means he was using were adapted to or likely to kill; or, though conscious of all these, yet it this diseased action of his mind had so far overcome or perverted his reason that he did not know that what he was doing was wrong.”

It is not every partial derangement of .the mental faculties that will exempt from legal responsibility: it must be such as to prevent intelligent volition in respect to the act for which the respondent is on trial. He should have, as necessary to liability, so much memory and power of perception and reflection as will enable him to identify his acquaintances, to recognize his relations to them, to understand, as ordinary minds do, the nature and usesof material objects around him, and to appreciate the obvious and universal obligation to abstain from violence- and bloodshed in the peaceable intercourse of his neighbors with him. ' This is the basis of general responsibility. On it confessedly sane persons are judged. It is obviously true that among persons of equal intelligence there is not always equal repugnance to criminal conduct. Persons of ability to comprehend the ethical difference between one act and another are very unequal in will power to regulate their own conduct. Between others there is also a great disparity in the extent and quality of their acquirements, as, also, in the vigor and power of their natural faculties. But all such differences are disregarded in determining responsibility for crime. All persons having sufficient ability to distinguish as to any particular act, whether it is right or wrong, are imperatively required to do right and refrain from wrong, and are equally amenable to the laws which apply to that act.

Where there is delusion there is insanity, that is, where persons believe things to exist which exist only, or, at least, in that degree, exist only in their imaginations, and of the non-existence of which no proof can convince them, they are of unsolid mind. Jt is, however, only the belief which no rational person would believe that is insane delusion. To render such insanity a defense the delusion must have been of such a character as to affect the prisoner’s judgment and incapacitate him to decide between right and wrong on the subject of the act of which he is accused.

The prisoner should not be convicted unless the jury is satisfied by the testimony, beyond a reasonable doubt, not only that he unlawfully killed Platt, but also that he was not insane and committed the homicide of his malice aforethought. If the jury find the prisoner guilty of murder, the verdict should specify whether he is guilty of murder in the first degree or in the second degree. If he be acquitted on the ground of insanity when the homicide was committed, let the verdict be “ not guilty,because insane.”

The jury failed to agree. It is understood that eleVen were for conviction and one for acquittal.


text:
    Jacob Lederman, Appellant, vs. Elijah Wever, Appellee.

    Notiob of trial of an appealed case should not be disregarded, notwithstanding the bond for auch appeal is defective.

      Allegan Circuit,

      January 10, 1870.

      J. F. Alley for Appellant; F. J. Littlejohn of counsel.

      Arnold & Stone for Appellee; Williams & Humphrey of counsel.
   Brown, J.

Thiá' case was noticed for trial by appellant.

Defendant’s counsel moved that the appeal be dismissed, on the ground that the appeal bond is not in conformity with the law as amended in 1867, Sess. L., p. 86. The appellant was permitted to file a new bond, and now the appellee insists thát the original bond being defective, the appeal was not perfected at the time the case was noticed for trial — that the case was not in a.condition to be noticed for trial until all the requirements of the statute regulating appeals had been complied with.

¶ 8855 C. L. provides that “no appeal shall be dismissed on account of any informality or imperfection in the bond,” &c , if the appellant and his sureties consent to amend the same or file a sufficient bond.

The Legislature has thus recognized the case as appealed, and pending in the Circuit Court, notwithatanding the bond may be informal or imperfect.

The appellee ha<í no right to assume that the appellant would not, when called upon, perfect his bond; and it was his duty to prepare for trial in pursuance with the notice served upon him. The case must be tried when reached, in its order,' unless some good cause is shown for a continuance.


text:
    Henry G. Bell and Charles G. Lord, Partners, &c., of firm of Henry G Bell & Co., vs. Alexander A. Foreman and F. Benjamin Case, Partners, &c., of firm of A. A. Foreman & Co.
    Where suit is brought upon a promissory noto signed by a firm name agaiuat tho individuals composing such firm, a notice by onq that ho will show on the trial that tho note wasnofc given for an indebtedness of tho firm, and that the firm name wassigned thereto without bis kuowlodgoor consent, will not avail to lot in such proof. Insuchcjiso tho provisions of C. C. rule 79 are applicable, and tho party seeking to set up such a defense must make, file, and servo with his plea, an affidavit denying the execution of the note by him.

      St. Joseph County Circuit Court

    1869.
    Suit commenced by declaration in assumpsit, on common counts, to which was attached a copy of note, with the usual notice to the defendants that the original would be offered in evidence thereinunder on the trial. Declaration and copy of note personally served on both defendants.
    Copy of note as follows:
    “ $865 51. New York, JunelZth, 1869.
    “ Ninety days after date we promise to pay to the order of Henry G. Bell & Co. eight hundred sixty-five 51-100 dollars, at the First National'Bank of Sturgis, Mich., value received, with the current rate of exchange on New York.
    [Signed,] “A. A. FOREMAN & CO.”

      The defendant JForeman did not appear, but made default. Case, the other defendant, pleaded the general issue, with a notice appended,in substance, that on the trial he would give in evidence under the general issue that he was not one of the makers of the note declared upon; that said note was not given for any firm indebtedness; and that the firm name was signed -thereto without his knowledge or consent, &c.
    Cause tried and judgment for plaintiffs for amount of note June 11, 1869.
    Defendant Case subsequently moved for a new trial, claiming -that he was taken by surprise, and was absent, as, also, some of his witnesses and one of his counsel, when the cause was brought on to trial. The affidavits filed by him in support of his motion showed that the witnesses he relied upon were to prove that he never executed the note himself, and that he never authorized any one to execute it for him, and that this was the only defense he relied upon.
    IV. H. Soule, Plaintiffs’ Attorney; Mason & Melendy of ■counsel.

      Allison & Akey, Defendants’ Attorneys; W. L. Stoughton of counsel.
   By the Court,

Upson, J.

Under Circuit Court rule 79, “ upon the plea of the general issue in an action upon any written instrument * * * the plaintiff shall not he put to the proof of the execution of the instrument or of the handwriting of the defendant unless the defendant, or some one in his behalf, shall file .and serve a copy of an affidavit denying the same,” &c. “ Such affidavit shall be filed, when by the defendant, with the plea,’’ j&C.

In this case no affidavit denying the execution of the instrument or the handwriting of the defendant has been filed or served, and the defendant is, therefore, precluded from putting it in issue, as such evidence would at once put the plaintiffs to the proof of the same, which the rule says .shall not be done without the-filing and serving of the requisite affidavit. The evidence not being admissible, the motion must be denied. See 4 Mich., 506; 5 Mich., 26; 7 Mich., 468; 10 Mich., 116; 7 Blackford, 306; 7 Ind. Rep., 185, 306, 356, 594.