author: By the Court, Johnson, J.

text:
    Prentiss vs. Holbrook.
    In the absence of any statutory provisions as to judgment records, the files and journal entries of the Court are to be taken and deemed a substitute "for the record, and are competent evidence to provea judgment, notonly in the same, but all other Courts of this State.
    Plaintiff brought an action against a sheriff for taking certain personal property, which on. final hearing was determined against plaintiff. After the sheriff had sold the property, plaintiff brought his action to recover the same, against the purchaser at the sheriff’s sale#
    Held, that the suit against the sheriff was a bar to the action against the purchaser.
    Error to Wayne Circuit Court.

      Bachus é Harbaugh, for plaintiff in error.

      A. Davidson, for defendant in error..
   By the Court, Johnson, J.

This cause was originally commenced in the County Court, and elected from that Court to the Circuit Court for trial.

Three causes are assigned for error:

First. That the Court below erred in admitting the original files and journal entries, with the testimony of the clerk, as evidence to prove the judgment rendered in the County Court in the case of Prentiss vs. Cicotte.

Secondly. In charging the jury that such files and journal entries were sufficient proof of the judgment, and

Thirdly. In charging the jury that said judgment was a bar to the plaintiff’s right of recovery.

The first two causes of error properly present but one question, for it must be admitted, as a legal consequence, that if such evidence was admissible at all, it was sufficient to prove the judgment, and the question is distinctly presented whether such evidence is admissible for the purpose of proving a judgment, or whether, as insisted by plaintiff’s counsel, it can only be proved by a formal record or an exemplified copy thereof. '

There is nothing in the law establishing the County Court, requiring a formal record to be made.

By the sixth section of an act entitled “ an act to consolidate the laws in relation to. County Courts,” &c., (Sess. Laws, 1849, p. 278,) it is provided that the clerk shall have the custody and care of all the books and papéis belonging to the Court, and he is thereby required to be present at all trials, and to keep the minutes of all the proceedings and judgments of the Court, under the direction of the Judge.

These minutes of the Clerk, made in "pursuance of this provision of the law, and under the daily inspection of the Court, constitute its records. The manner of making a complete record at common law, has'no application to a Court thus organized. In the latter instance, there is no judgment in contemplation of law until all the proceedings are transcribed from paper to parchment, signed by the Judge and filed in the proper office; and no execution can issue until that has been '•done. Here, upon the order of final judgment being entered by the clerk, (either upon the verdict of a jury or upon the decision of the Coxu’t, where a jury is dispensed with,) the judgment becomes perfected; the law requiring no further proceedings to entitle a party to an execution thereof.

But it is insisted, in 'analogy to the common law mode, in making up a complete record, that the clerk should transcribe the files and journal entries into a book kept for that purpose, in a consecutive order, and that this, when so transcribed, shoxxld be the only evidence of the doings of the Court.

In the absence of any statutory provision, or some general custom sanctioned by long usage, and thereby acqxxiring the force of law, it would perhaps be difficult to determine upon what principle such a record coxxld be used, in any manner as evidence; and upon the same principle of reasoning it would seem necessarily to follow, that in the absence of any provisions of law to the contrary, the original files and jomnal entries in a cause, must not only be competent, but the best evidence to prove a jxxdgment.

This question we think, however, is settled by a recent decision of this Coxnt, in the case of Norvell vs. McHenry, (Manning B., 22V.) The Court held in that case that the files and journal entries xvere competent evidence to prove a jxxdgment rendered in the same Court. Judge Miles, who delivered the opinion of the Court, elaborately examined the subject, and cited several American authorities establishing the doctrine and deciding, that Courts constituted like ours, xvhere all proceedings are entered from day to day in the journal, under the direction and inspection of the Court, must from necessity, be evidence of the acts of the Court.

It is contended however, that the case at bar is not settled by this decision; and-a distinction is attempted to be made, in this, that the ease of Uorvell vs. McHenry decides simply that the files and journal entries are properly receivable in evidence, to prove a jxxdgment in the same Court where the evidence is offered. The argxxment of that case is this: 1st, The law required no formal record to be made; 2d, That the judgment was operative and valid without any such record; and lastly,- that such files and journal entries, furnished as certain and conclusive evi-' dence as though they had been copied into a book by the clerk.

-If then, the reasoning of that case he correct, and we think it cannot he 'controverted, it settles the case at bar. , For it will not be contended that if the files- and journal entries of a cause were properly receivable in evidence, to prove a judgment in the same Court, upon the principle and for the reason that there can be no better evidence, they should not upon the same rule of .evidence, be so considered in all other Courts in this State.

.It is urged that the adoption of this rule, would be attended with much public inconvenience, and that mischievous consequences would result, in the want of safety and security of the records of our Courts, and especially if clerks can be compelled to appear in different Courts with the books and papers of their offices, to give testimony.

This is not a necessary consequence, and can have no weight in the determination of this question. Whether a clerk can be compelled to remove the original records of his office from that depository which the law has provided for their safe keeping, is unnecessary to decide. We only decide that when they are before us and offered as evidence, they are competent and legal proof of a judgment.

The remaining [question in this case is, whether the Court erred in charging the jury that the judgment rendered in the case of Prentiss vs. Cicotte, was a bar to the plaintiff’s action. Cicotte was the sheriff of Wayne county, and levied on the property in question by virtue of an. execution issued on a judgment in the County Court, rendered in the case of Spellman and Fraser vs. Chase, as the property of Chase. After the levy, and while the property was in the hands of the sheriff, Prentiss claiming the property as his, brings his action against the sheriff, which, on a final hearing, was determined against him, and he now seeks to recover the property in specie, against the present defendant, who was the purchaser theréof at the sheriff sale.

Independent of all authority, it' would seem, upon every principle of justice and public policy, that after a man had once tried his title to property before a Court of competent jurisdiction, he could not pursue that property in the hands of a subsequent purchaser, and again, before the same or any other tribunal, subject the owner thereof to further litigation. For if he is not barred by his former suit upon an issue involving the title of the property, hut can compel the purchaser to defend against his original claim of right, he may without Hmitation or restriction, continue to pursue the property unto the hands of every subsequent purchaser.

If that suit had resulted in a judgment against the sheriff) the title would thereby have become vested in him, in his representative character, and would have inured to the benefit of the defendant. It would have settled and determined the rights of all the parties to the property in question. Cooper vs. Shepherd, (54 E. C. L., 265.)

The same results must follow from the present judgment. When the defendant became the purchaser of the property, he incurred the single hazard of the plaintiff’s discontinuing the suit against the sheriff, and pursuing the property in specie. The plaintiff not doing this, but seeking his remedy against the sheriff, he must abide the result.

“Justice requires that every cause be once fairly and impartially tried; but the public tranquillity demands, that having been once tried, all litigation of that question and between those parties should cease forever.” (1 Green. on Ev., § 522.)

“To give full effect to the principle by which parties are held bound by a judgment, all persons who are represented by the parties, and claim wider them, or in privity with them, are equally concluded by the same proceedings.” (Ib., § 523.) “The term privity denotes mutual or successive relationship to the same rights of property.” (Ib* §'522.) The reason is founded upon identity of interest, and wherever this identity exists, all are alike concluded.

The interest of the defendant to the property in question, is identical with that of the sheriff; he succeeded to all the rights of the sheriff and no more. Those rights as against the plaintiff have been forever determined by the judgment in question.

“ All privies, whether in estate, in blood or in law, are estopped from litigating that which is conclusive upon him with whom they are in privity.” (Carver vs. Jackson, 4 Peters, 85; Case vs. Reeve, 14 J. R., 81.)

The assignee of a chattel becomes a privy in estate to the assignor, so far as regards the particular property assigned, and a judgment against the latter binds the former. (Adams vs. Barnes, 17 Mass. R. 365.) In this case it was held that a mortgagor having contested the validity of his mortgage on the ground of usury, a judgment against him was conclusive upon the assignee of the equity of redemption; and although not a party to the former suit, he became by that assignment a privy to the assignor, and consequently bound by the judgment.

The authorities upon this point result in this general doctrine, that the person who represents another and the person who is represented, have a legal identity, so that whatever hinds the one in relation to the subject of their common interest, hinds the other also.

And it needs but a simple statement of the case before us to see the application of this doctrine. From the time of the sale of the property in question to the defendant, Cicotte stood as the legal representative of his-assignee, and that'judgment being conclusive between the plaintiff and Cicotte, it must with equal certainty he conclusive between the plaintiff and defendant who was thus represented.

Upon the whole then, we are of opinion there is no error upon the record, and that the judgment of the Court below must he sustained.


source: Caselaw Access Project

author: By the Court, Green, J.

license: Public Domain

text:
    Barnes et al. vs. Baker.
    The assignor of a note and mortgage covenanted with assignee that in case assignee should fully prosecute the note to judgment and foreclose the mortgage, and should not collect a specified sum, with costs, &c., then the assignor would pay said sum and costs, and if upon execution or foreclosure, the mortgaged land or other real estate should be taken for sale or set off, then the assignor would pay said sum. Held, in a suit upon said covenant, that assignor could not set up in defence a mere irregularity in the foreclosure.
    The assignee having foreclosed in chancery and taken decree for the sum due, and for execution for any deficiency after sale of mortgaged premises, this was held a sufficient compliance with the condition of the covenant, that the note should be prosecuted to judgment.
    Before the assignee could sue upon the covenant in the assignment, he must exhaust his remedy against tho mortgagor by issuing execution to the county of his residence.
    Error to Lenawee Circuit Court.

      Ward é Tabor, for plaintiffs in error.

      Baker <£• Miller and Beaman & Qooley, for defendant in error.
   By the Court, Green, J.

This action was brought by the plaintiffs in error against the defendant in error, in the Lenawee County Court, upon the following instrument, executed by the defendant, under seal, to-wit:

“For a valuable consideration to me in hand paid, I do hereby assign,, transfer, and set over unto George Barnes and Joseph H. Pharo, all my right, title, and interest in and to the within mortgage, and note accompanying the same; and I do hereby guarantee the collection of said note and mortgage, hereby covenanting and agreeing with the said Barnes, and Pharo, that in case the said Barnes and Pharo shall fully prosecute to judgment the said note, and foreclose the said mortgage, and there shall not be collected the sum of two hundred and thirty-four dollars and eighteen cents, and interest from the date of said note, that then I will pay such amount to them, with the costs and charges incurred in such suit or suits; and if upon execution or foreclosure, the mortgaged land, or any other real estate, shall be taken for sale or set off, I do agree thereon and on such sale, to pay said amount of two hundred and thirty-four dollars and eighteen cents and interest, to said Barnes and Pharo.”

This instrument was dated on the 22d day of June, 1843, and was endorsed upon a mortgage, executed by one Albert Yredehburgh, to the defendant, bearing date the 29th day of April, 1843. The declaration alleges that the mortgage was foreclosed by the plaintiffs, in the-Court of Chaneeiy; that a decree was obtained in the foreclosure suit, on the 7th of January, 1845, for the amount due on the note and mortgage, and that the mortgaged premises' were sold by virtue of said decree, to the plaintiffs in this suit, on the 11th day of June, 1847, for the sum of seventy-five dollars, leaving a balance of $304 34 still due. That for this balance an execution was issued out of the said Court of' Chancery, against the goods and chattels of Yredenburgh, the mortgagor, which was duly returned, wholly unsatisfied, and that the defendant refuses to pay the said sum, &c.

The defendant alleged in his defense,

1. That the mortgage had not been duly and regularly foreclosed;

2. That no judgment had been obtained upon the note;

3. That no execution had been issued upon thejdecree, to tbe sheriff' of tbe county where Yredenburgb resided.

It appeal's from tbe testimony that Baker, tbe defendant in this suit, was made a party defendant in tbe foreclosure [suit. Tbe Court of Chancery decreed payment of tbe amount ascertained to be due upon tbe note and mortgage, or in default thereof, that tbe mortgaged premises be sold. Section 9 of tbe “act to provide for tbe transfer of real estate on execution, and on mortgage sales,” approved March 8, 1843, expressly provides that .“in foreclosing mortgages in tbe Comt of Chancery, it shall be lawful for the Chancellor to decree a sale of tbe premises.” This section also provides for a sale of the mortgaged premises in all cases of foreclosure, “provided, that in all cases tbe minimum bid’ at such sale for tbe premises, shall be two-thirds of tbe appraised value of each distinct lot, tract of land, or premises, as tbe same shall be appraised and offered for sale.” The sale was made by the Master, without an appraisal. His report of tbe sale, and of tbe balance due, was confirmed under the rules of tbe Court, and an order was thereupon made, that execution issue against Yredenburgb, for tbe amount of such balance. Conceding that tbe sale was irregular, tbe proceedings cannot be regarded as void. If irregular, they might have been set aside upon application made in due time. In tbe ease of Spafford and Tileston vs. Beach, (2 Doug. R., 150,) it appeared that tbe property sold by tbe sheriff on an execution, consisted of several distinct parcels, which were sold together for a gross sum, and not separately. This Court held that this irregularity did not render tbe sale void.

Tbe objection that no judgment bad been obtained upon‘the note, is not well taken. Tbe contract does not require a judgment at law, in express terms, and tbe decree of tbe Court of Chancery for tbe payment of the amount due, and that an execution issue therefor, has all the force and effect? of a judgment at law, and is a judgment.

But tbe plaintiffs are not entitled to recover upon the guaranty of tbe defendant, until they have exhausted their remedy upon tbe decree against Yredenburgb. This they have not done. The declaration and tbe proofs show an execution issued against tbe goods and, chattels of Vredenburgb, directed to tbe sheriff of Lenawee County, and a return of nulla Iona endorsed thereon by tbe sheriff. Yredenburgb lived in Hillsdale County, aud the execution should have been issued to that county, and, for the want of goods and chattels, it should have directed ■the sheriff to make the amount of the lands and tenements of the defendant in such execution.

It is contended on the part of the plaintiffs, that the land having been taken upon the foreclosure of the mortgage “for sale or set-off,” and such land having been sold, the defendant became immediately liable to ■pay them the whole amount which he guarantied.

The language of the guaranty is somewhat ambiguous, but I do not think the construction contended for by the plaintiffs the true one, nor is it the one which they have practically put upon it. After exhausting ■the mortgaged premises, they regarded it as incumbent upon them to ■cause an execution to be issued for the balance remaining due.

The whole instrument must be construed together. The defendant ■guaranties the collection of the note and mortgage, and covenants that in case the plaintiffs shall prosecute the note to judgment and foreclose the mortgage, and there shall not be collected the sum of $234 18 and interest, he will pay such amount with the costs and charges incurred in such suit or suits. Then follows the clause providing that if upon execution or foreclosure, the mortgaged land or any other real estate shall be taken for sale or set off, on such sale the defendant agrees to pay the said sum and interest to the plaintifis.

The intention of the parties appears to have been, that in case the moneys could not be collected without selling or setting off real estate, the defendant would become the purchaser or take the land set off, and pay the amount. But he was not bound to pay the whole amount upon the sale of real estate worth but a small jrortion of the sum due upon the mortgage, while the remedy against the debtor was not exhausted, and the plaintiffs had the power of seizing any other real ■estate which the'mortgagor might have. The testimony in relation to Vredenburgh’s ownership of property cannot be regarded. The evidence which the law requires of inability to collect a debt, is the return •of such an execution as the statute airthorizes to be issued upon a judgment or decree unsatisfied for want of goods or chattels, lands or tenements, out of which the moneys could be made. No competent evidence therefore, was adduced on the trial, that the amount remaining-due to the plaintiffs could not be collected.

The judgment of the Circuit Court for the county of Lenawee, reversing the judgment of the County Court, must be affirmed with costs to the defendant in error.


text:
    F. Cicotte vs. Gagnier and wife et al.

    P. C. under seal acknowledged himself debtor to complainant in a sum certain, which he-covenanted, unless sooner satisfied, should be paid out of such property as he might die the owner of. Afterwards in consideration of a covenant by the defendants, G. and ■wife, to-support him during his lifetime, he leased to them certain premises for his lifetime anda specified term thereafter. Between three and four months after the lease, P. C. having in the meantime divested himself of all his other property, transferred to G. and wife, a mortgage of about $900, and $150 of personal property, in consideration of which, G. and wife covenanted to support P. C. during his life, and at his decease have him suitably interred. AfterP. C.’s death, complainant obtained judgment onhis claim against the executor andfiled his bill to reach the mortgage,* &e., transferred by P. C. to G. and wife, or to charge them with the payment of so much of the value thereof as would satisfy his judgment. Held, that as G. and wife were already bound to support P. C., the sole consideration for the transfer of the mortgage, &c., to them, was the expense of P. O.’s burial, which was too trifling a consideration to support the transfer of so large an amount of property, and that therefor the transfer of the mortgage &c., to G. and wife, was voluntary as against complainant.
    "Where a creditor is advised by his debtor and a third party that the two are in treaty for a transfer to such third party, for a valuable consideration, of the debtor’s property, and is not informed that by such transfer the debtor is to deprive himself of the means of paying his debts, and being required by them to declare whether he had any claim against the debtor or the property in question, declined to answer: Held, that the creditor is not by his silence estopped from seeking relief against the transfer.
    The bona fide assignee of a mortgage, not charged in the bill with a knowledge of the complainant’s equities against the assignor in respect to the mortgage, will not be held affected by those equities.
    Appeal from Wayne Circuit .Court, in Cbaneery.

      H. T. Backus, for complainant.

      Messrs. Fraser, Gray and J. M. Howard, for defendants,
   By the Court, Green, J.

On. the 9th day of February, 1844, Presque Coti, then of Detroit, since deceased, made and executed to the complainant an instrument in writing, under his hand and seal, by which he acknowledged himself to be indebted to the complainant, for services rendered by him for said Coti, up to and ending on the first day of January, 1844, in the sum of four hundred dollars, which he covenanted and agreed should, at his decease, be paid to said Cicotte, his heirs or assigns, &c., out of such estate and effects as he might die seized and possessed ofi unless he should see fit sooner to pay the same.

He also further covenanted and agreed, in consideration of his affection for said Cicotte, and for the time and services whichhe was to continue to spend and render for said Coti, that he should have and be paid, one hundred dollars per year, from said first day of January then last past, to the time of the decease of said Coti, and at that rate for a fraction of a year; and in the event o£ the death of said Cicotte prior to the decease of Coti, then at the rate of one hundred dollars per year, to be paid to ■his heirs, (fee., on the decease of said Coti, out of any estate and effects as aforesaid, and to be a charge thereupon, and to be considered a just debt of Coti, and to have preference over any will made, or to be made by Coti.

On the fourteenth day of February, 1845, Cotí and Dorick Gagnier ■and Elizabeth his wife, entered into a covenant in writing, by which. Coti leased to Gagnier and wife, certain buildings and premises for his life, and for a specified term thereafter; and Gagnier and wife covenanted and agreed that during the natural life of said Coti, they would furnish him with board, lodging, washing, attendance, and all other necessaries, free of all cost and charge therefor, either against himself or his estate.

On the thirtieth day of May, 1845, Coti had divested himself of all, his property, (which was considerable at the time the agreement was made with Cicotte,) excepting a mortgage which he held upon a parcel of land in Detroit, executed to him by the defendant Lewis, on which there remained unpaid the sum of nine hundred dollars, and personal property of the value of abont one hundred and fifty dollars. On the last named day, he entered .into another agreement with Gagnier and wife, whereby he transferred to them the mortgage and all his personal property, in consideration of the covenants therein contained on the part of the said Gagnier and wife to be performed, and of lovfe and affection, ■ and the nominal sum of one dollar; and the said Dorick and Elizabeth on then part, covenanted that they would at then- own proper cost and charges, maintain and keep the said Presque Coti during his life, with good and sufficient meat, drink, lodging and washing, or cause the same to be done in a way satisfactory to him, and that after Iris death they would have him interred in a manner suitable to his rank and wishes.

Coti died on the 14th day of July, 1845, having on the 25th day of November, 1844, executed his last will and testament, appointing the Right Reverend Peter Paul Lefevre and Theodore Williams, of the city of Detroit, his executors. '

Lefevre, upon the will being proved inthe Probate Court, took out letters testamentary thereupon, and not being able to find any estate or effects of which Coti died seized, he made a return to the Probate Court accordingly.

On the 24th of November, 1845, Dorick and Elizabeth Gagnier assigned the mortgage to the defendant, David Cooper, for the sum of about $650, and there remained unpaid, as appears by a stipulation, signed by the solicitors of the respective parties, at that time, the sum of $700. : -

The complainant commenced a suit against Lefevre, the executor, in the Circuit Court for the county of Wayne, to recover the amount of his claim, and on the 14th day of May, 1848, obtained a judgment in said suit for the sum of $668 24 damages, and $9 54 costs of suit, against the executor, upon which an execution was issued, and returned unsatisfied.

The complainant filed his bill in this cause as a creditor of the estate of Coti, and seeks to reach the mortgage and property transferred to Dorick and Elizabeth Gagpier, or to charge the defendants with payment of the value thereof, or of so much as may be sufficient for the payment of his judgment with interest and costs. The bill having-been dismissed in the Com-t below, as against Lefevre, and no appeal having been taken by the complainant, it is not necessary to inquire into the transactions set forth in the bill between Lefevre and Coti. The bill charges that the lease, and the transfer of the mortgage and personal property were obtained by the defendants, Dorick and Elizabeth Gagnier, by means 'of deception, fraud and imposition practised by them upon Coti, but this charge is denied by the answers, and is not sustained by the proofs. But it is further charged that the said transfers and leasing were voluntary, and without consideration, and made with a full knowledge of the plaintiff’s claim, and with the intent to defraud him of the same.

I do not deem it necessary to inquire whether the lease was good and valid as against the creditors of Coti or not, because it appears-from the pleadings and proofs 'that Coti still retained property abundantly sufficient for the payment of the complainant’s claim, and it does not appear that he owed any other debt. Coti had no .family, nor any one dependent on him for support, and the Gagniers had bound themselves to support and provide for him during his life, in consideration of the lease.

But the assignment of the Lewis mortgage, and the transfer of the personal property, I think must be regarded as voluntary as against the complainant. The value of the estate transferred, was at least one thousand dollars. The consideration was the support and maintenance of Coti, which they were before legally bound to provide for, and the expenses of his burial. The latter, as between Coti’s creditors and .the Gagniers, must be regarded as the sole consideration, and this is but a trifling amount compared with the value of the property. It is stated in the answer of Dorick and Elizabeth Gagnier, that the first agreement for the support of Coti was a hard bargain; that Coti’s infirmities increased so that he required much more care and attendance and medical. aid than either party had anticipated; that the lease was unproductive,, and that it would have been oppressive had they been obliged to fulfil their covenants for. the consideration they had received; and that Coti, being conscious of these circumstances, and anxious to secure a performance of their covenants, and acknowledging the justice of their complaints, conveyed to them the mortgage and personal property, regarding it as no more than an adequate compensation for the care and attendance they were to bestow, and the expenses they were to incur in the fulfilment of their agreement. The testimony shows that conversations substantially to this effect, were had between the parties to the arrangement; and the physician who attended Coti swears, that in his opinion, the consideration received by the Gagniers was no more than adequate for the obligations which they incurred.

It seams somewhat singular that Coti’s rapidly declining state of health within the three and a half months after making the lease, and which terminated in his death only five months after the first 'agreement was made, should have been regarded by the Gagniers as an event which increased or was likely to increase the burthen of their obligations towards him, when they were bound to support and provide for him during his life. On the contrary it would seem most natural to suppose that his condition at that time indicated the probability, as was verified by the event, that their cares and responsibilities were soon to terminate. According to my apprehension this circumstance is calculated to throw some suspicion upon the motives and conduct of the Gagniers, in obtaining from' Coti the mortgage and personal property under the last agreement. Had there been no creditor of Coti there would have boon no one to complain, *and the transfer would have been good as against Coti or his heirs. But Cicotte, being a creditor, has a right to complain; and the transfer being voluntary as against him, he has a right to insist upon the payment of his debt out of the property conveyed, or to charge the grantees with the payment thereof. (1 Story’s Eq. Jur., § 359 and note; 6 Paige R., 62; 3 John. Ch. R., 481; 2 Doug. Mich. R., 326.)

By the transfer of all his remaining- property, Coti divested himself of the power to pay any debt he might owe. This the Gagniers knew when they toon the assignment. He owed Cicotte, the complainant, a debt to be paid out of the estate he might die seized and possessed of, but by this transaction he rendered himself insolvent, and if sustained, effectually defeated its recovery. This he had no right to do. The claims of justice are always imperative, and those of generosity must yield when both cannot be satisfied.

But it is insisted on the part of these defendants that the complainant cannot he admitted to avail himself of any claim as against them .on account of the transfer of Coti’s property, because they allege that be was fully adviced of the pending negotiation for such transfer, and being inquired of by thorn through their attorney whether he had any claim against Ooti or the property in question, he declined to make any disclosure, or any answer to their inquiry. That if one is silent when conscience requires him to speak, he shall not be allowed to speak when conscience requires him to be silent, is a maxim of unquestioned soundness and wisdom. It would shock the moral sense of every man, if one were 'allowed to stand by and see his own property sold as the property of another, without making any objection to the sale, and afterwards to sustain an action against the innocent purchaser to recover it or its value. This would he a palpable fraud upon the purchaser, which the law cannot tolerate and a Court of Equity will never sanction.

In order to determine whether that rule is applicable in this case, it will be necessary td examine the facts relating to this point. The bill charges that at the time of the transfer, the defendants, Dorick and Elizabeth Gagnier, were informed and had full notice of the complainant’s claim against Ooti. In their answer to this charge these defendants deny that they had any knowledge or suspicion of the existence of the instrument executed by Ooti to the complainant, but they admit that before they received the transfer of the mortgage and personal property from Ooti, they had heard that the complainant had hinted that he had some claim against Cotí, of the nature or existence of which they had no knowledge whatever. It appears from the pleadings and proofs, that on the 29th clay of May, 1845, Mr. Gray, as the attorney of Dorick and Elizabeth Gagnier wrote and left at the house of the complainant a paper directed to him, as follows: “I am requested by Mr. Presque Cotí, and Mr. Dorick Gagnier, of this city, to inform you that they have heard that you claim to hold accounts- or obligations against Mr. P. Cotí, the existence of which, he, Mr. Cotí, denies. However, as Mr. Cotí. and Mr. Gagnier are in treaty relative to the conveyance 'of the property owned by the former, for a valuable consideration, to the latter, they deemed it best that you should be informed of their intention. Mr. G. will, of course, purchase the property as free from incumbrances, therefore, if you hold any demands against Mr. Cotí, or liens on his property, and neglect or delay to give full notice thereof to Mr.’ Gagnier, you will bo barred from recovci ing üio samo of tho real or personal property which may bo sold or convoyed to him by Mr. Coti. In such event ho will presumo you have nono.” On the day following the reception of this communication, the complainant called on Mr. Gray and informed Mm that he had no reply to make.

It is contended, on the one side, that it -was the duty of the complainant to respond to this request frankly and fully — that it was made in good faith, and for the sole purpose of .eliciting the truth, in order that Gagnier might make the purchase without injuring the complainant, or if he could not'do so, that ho might abandon the treaty — and that Cieotte’s reply to Mr. Gray was equivalent to a declaration that he had no claim against Coti or lien upon his property. On the other side, it is contended that it was deceptive and fraudulent, and did not inform the complainant of the true character of the proposed purchase and sale.

It must have appeared to the complainant singular at leasts that such an inquiry should have been addressed to him on behalf of Mr. Coti, who had, a little over fifteen months before, with great apparent deliberation according to the testimony of Mr. Yan Dyke, entered into an agreement by which he acknowledged an indebtedness to him of $400 for past services, and stipulated for payment for services to be rendered in the future by complainant, and agreed that tho whole should be a charge upon his estate at his decease. He could not reasonably have supposed that Coti had forgotten the transaction, and he may well have been at some loss to discover the nature of so strange an inquiry. Had the inquiry been made on behalf of Gagnier alone, it would have appeared entirely reasonable that he should answer it, if tho proposed purchase and sale would affect his interests. Cicotte, the complainant, is informed that “Mr. Coti and Mr. Gagnier are in treaty relative to the conveyance of the property owned by the former, for a valuable-consideration, to the latter.” This is all tho information he had in regard to the character of the proposed transaction, and without any further explanation, the conclusion would naturally be that Mr. Coti was to receive from Gagnier money or other property equal in value to that ho was to convoy. With such a transaction Cicotte would have no right to interfere, because he would have no interest in it. It would leave Coti in just as good a situation as he was then in, and with the same means of satisfying the complainant’s claim. His estate would not thereby be diminished. Coti had already made provisions for his support during his life, and had ample means left to satisfy Cicotte’s claim and pay the expenses of his burial. Cicotte could not therefore hare inferred that the proposed conveyance for a valuable consideration, had any connexion with Coti’s support, and he had no reason to suspect from the information given through Mr. Gray, that Coti was about to convey his property in such a manner as to divest himself of all his remaining estate. This was not a case, therefore, wherein conscience required the, complainant to speak, and he is not estopped, by his silence, from seeking the relief prayed for by his bill.

The letter was written by Mr. Gray, at the request of the defendant, Dorick Gagnier, as appears by Mr. Gray’s testimony; and this letter, with the admission contained in Gagnier’s answer to the bill, shows that he had sufficient notice of complainant’s claim to put him upon inquiry. If he would have protected himself against it, he should have caused information to be given to the complainant of the true character of the proposed arrangement between himself and Coti; and then if Cicotte had refused to speak, Gagnier wotdd have stood in the same situation as if he had never heard of the claim. Hot having done so, he must be regarded as having' had full notice of it. The defendant Lewis, was made a party for the purpose of reaching- the moneys in his hands, •remaining unpaid upon the mortgage at the time of filing the bill. If Cooper is chargeable on account of the assignment of the mortgage to him by Dorick and Elizabeth Gagnier, the decree must be sustained as against,Lewis, otherwise the bill must Ire dismissed as against him.

The bill states the covenant by Coti with the complainant — a conveyance to Lefevre in trust — tire lease by Coti to Dorick and Elizabeth Gagnier, and their covenant to support Coti, and the agreement by which Coti conveyed to the Gagniers all his remaining estate, with the other facts and circumstances exhibiting the complainants rights as a creditor, and tending to show fraud on the part of Lefevre aud Dorick and Elizabeth Gagnier, without implicating Cooper, or naming him as a party, aud then charges that at the several times of obtaining said lease and said assignment of sajd mortgage and personal property of the said Coti, by the said Dorick and Elizabeth Gagnier, and the said deed by tbe said Peter Paul Lefevre, they tbe said defendants, were well aware and informed, and had full notice of tbe claim of tbe complainant against said Coti, and obtained tbe same with a full intent and design of defrauding tbe complainant out of tbe same.

Tbe bill subsequently states that some tilne in tbe year-1845, as tbe complainant is biformed and believes, tbe said Dorick and Elizabeth Gagnier assigned, or pretended to assign, tbe said mortgage to David Cooper, of tbe city of Detroit, but that tbe complainant is wholly unadvised as to what were the terms of jsaid assignment, tbe consideration therefor, or tbe time and terms of payment, &c., and prays a full discovery of tbe same, and claims that beds entitled to tbe benefit of tbe amount due on said mortgage at tbe time- of tbe assignment thereof by Coti to Dorick and Elizabeth Gagnier; but Cooper is not charged, upon information, belief, or otherwise, witb any knowledge of tbe existence of tbe complainant’s claim, ór of any of tbe facjg or ebcumstanees connected witb tbe transactions between Coti and Cooper’s assignors, upon which tbe equities of tbe complainant are based. A fab consideration appears to have been paid by Cooperfor tbe assignment of tbe mortgage, and be swears in bis answer that be purchased it in good faith.

Tbe complainant has not stated a ease which entitles him to relief upon any ground of fraud, as against Cooper, and be cannot recover upon a case not made by tbe bill.

The bill of complaint must therefore be dismissed as against tbe defendants Samuel Lewis and David Cooper, witb costs, and a decree must be made against tbe defendants Dorick and Elizabeth Gagnier, for tbe amount of tbe judgment recovered by tbe complainant against Lefevre as executor, in tbe Circuit Court for tbe county of Wayne, with interest and costs of suit.

Tbe view which we have taken of the facts in this case, renders it unnecessary to discuss several of tbe points made by counsel on tbe argument, and tbe principles of law applicable to those facte are too familiar to require a citation of authorities.


author: By the Court, Martin, J.

text:
    Dawson, Administrator, &c., complainant, vs. Hall et al., defendants.
    Where a grantor does not intend that his deed shall take effect until the performance of some condition or the happening of some event, he should either retain it himself or leave it with some third person as an escrow, to be delivered at the proper time.
    If the grantor deliver the deed to the grantee as an escrow, in such case, whatever may be the form of the words accompanying the delivery, the delivery is absolute and the deed takes effect at once, and the party to whom it is delivered is not bound to perform the condition.
    The law will presume the delivery of a deed from its possession by the grantee.
    Statements made by a party subsequent to a transaction as to his motives or intentions at the time, are not receivable in evidence to affect the rights of others. It is only the intention, declared at the time which, as part of the res gestae can bind or affect others.
    The only exception to the rule is where the statements are made to the party to be affected, under circumstances from which his acquiescence in their truth can be fairly inferred, and the degree of consideration to which they are entitled, depends upon the circumstances under which they were made.
    Where the bill charges a defendant generally, with co-operating with other defendants to effect the acts complained of, yet makes no specific charge against him, predicated upon or sustained by any statement of facts, admitting of a denial, admission or explanation, neither his acts or admissions are put in issue. And where besides, he is not charged with knowledge of the acts complihied of, whatever may bo his intereet in the subject of the suit, his acts and statements are not evidence to affect his co-defendants.
    A feme covert cannot be bound or affected by the admissions of her husband as to her separate estate.
    Where there are several parties on the same side, the admissions of one, are not evidence to affect the others who may be joined with him, unless there is some joint interest or privity of design between them, although the admissions may in proper cases be admissible against the party making them.
    The declarations of husband and wife, are subject to the same rules of exclusion which govern their testimony as witnesses.
    Appeal from the Washtenaw Circuit Court, in Chancery.

      E. Lawrence, for complainant.

      O. Hawhins, for defendants.
   By the Court, Martin, J.

The bill in this case was filed by Silas Cogswell, to set aside a deed executed by him to Minerva Hall, Rachael Tozer, and Perline Cogs-well, three of his daughters, and that the registry thereof may be declared of none effect, and for an injunction, &c. It is amongst other things, averred in the bill, that on the 6th day of January, 184^, the complainant was seized of certain real estate therein described, that on that day ho made and executed a warranty deed of such real estate to said Minerva, Rachael, and Perline, that the consideration expressed hrsaid deed was one hundred dollars, hut that in fact no valuable consideration was paid or to be paid therefor, and that the value of such real estate was $3,000. That several days previous to the execution of such deed, the complainant was sent for to visit the family of John Hall, the husband of Minerva Hall, but by whom, he does not state; that he went, and that a day or two after his arrival, viz: on said 6th day of January, he was earnestly solicited and urged by said Minerva, Rachael, and Perline, to make out or execute a deed of said land to them, with the express agreement and understanding between complainant and them, that he should keep such deed in his possession, and that the same should not be delivered to them, or be recorded during complainant’s life-time, and that of his wife, should she survive him, and that complainant and his wife should have possession and full enjoyment of such lands during their lives, and that it was upon such express understanding and agreement that he consented to execute such deed. The bill further states that after the execution of the deed, and after Rachael Tozer and Perline Cogswell had left the residence of John Hall to return to their homes, and as complainant was about leaving also, Minerva Hall requested him to permit her to keep such deed for him, as it was desirable to prevent the other children from knowing that it had been executed, and because he had no convenient place of secrecy- and safety in which to deposit it, she, at the same time, assuring him that he should have possession of it whenever he should desire it; and that he did, upon such request and assurance, and from his natural bodily infirmity and great age consent to said request, and deposited the deed with her for safe-keeping, and to be returned to him whenever he might request it. That the said Minerva, Rachael and Perline, having obtained possession of the deed as aforesaid, fraudulently and knowingly, with intent to deprive complainant of the proper control of such deed, and of the use and enjoyment of the land, &c., and fraudulently to vest the title of said land in them, caused the same to be recorded without his knowledge or consent, of which he remained in ignorance for about a year thereafter. It further states that the complainant had continued in possession of the land unmolested, until recently before filing the bill, and abo charges in general terms the fraudulent proculing and recording of the deed by John Hall, Minerva Hall, Rachael Tozer, and Perline Cogswell.

An answer of the defendants upon oath is waived.

Although an answer upon oath was put in, denying in the most positive terms,- every material statement in the bill in the above respects; yet as such oath could only avail the defendants for the purpose of obtaining a dissolution of the injunction, the bill and answer for the purposes of the suit' can be regarded simply as pleadings, and the complainant is compelled to resort to his evidence entirely, in support of his action.

It a well settled rule of law, that if the grantor does not intend that his deed shall take effect until some condition is performed, or the happening of some future event, he should either keep it himself, or leave it with some other person as an escrow to be delivered at the proper time.

That it should operate as an escrow it is necessary that the delivery should be made to a stranger, and not to the party; for if one makes a deed and delivers it to the party to whom it is made as an escrow, upon certain conditions, in such case, let the form of the words be whatever it may, the delivery is absolute, and the deed shall take effect presently, as his deed; and the party to whom-it is delivered is not bound to perform the condition, for in traditionibus chartarum, non quod dictum, sed quod factum est, inspiciter. (Fairbanks vs. Metcalf, 8 Mass. R., 230; Gilbert vs. North Am. Fire Ins. Co., 23 Wend., 43; 4 Comyn’s Dig., Title “Fait (A 3,) Delivery,” and notes; 4 Cruise Dig., 36; Touchstone, 58.)

Such being the rule of law, the complainant could only hope to succeed in this case by showing that the deed had never been actually delivered, as his deed to the grantors, for the law will presume this from their possession, (1 Green. Ev., § 38; 4 Pick. R., 518;) but that it was fraudulently and clandestinely procured and recorded.

In the examination of this case, a more than ordinary scrutiny should be exercised. The extreme age and infirmity of the grantor makes it peculiarly imperative upon a Court of equity to see to it, that no meditated imposition — no circumvention or undue influence operated to procure the execution of the conveyance, or to acquire possession of it afterwards. How rigid soever maybe the rule of law respecting the effect of a delivery of his deed by a grantor, this, like every other arbitrary rule, will bend in a Court of equity, before the evidence of fraud.

It is not denied but that the complainant intended to settle the property embraced in this deed upon these daughters, nor but that such would be ah equal and fair disposal of it, in view of the settlements made upon his other children. Indeed, such is claimed upon his behalf, to-be-the case; but it is insisted that the deed was not to become operative until after his decease, and that of Rachael Cogswell, his wife. This attitude of the cause renders it unnecessary to look into the consideration of the deed. "We have only to inquire whether the grantees exercised good faith and honesty towards him in procuring its execution, and whether he actually delivered it as Ms deed. In the prosecution of these inquiries we do not propose to discuss the evidence at length, but rather to consider its leading features and general character.

A very considerable portion of the complainant’s testimony consists-in narratives of the acts and conversations of the complainant and John Hall, which occurred after the execution and record of the deed, and it becomes an important inquiry how far the rights of the grantees are compromitted by the conduct or conversations of either or both. That, the statements or declarations of the complainant to third parties are admissible in his favor will not be contended for a moment. Subsequent statements of a party’s motives or intentions will not be received to affect the rights of others, or to explain a transaction; it is only the-intention declared at the .time of such transaction, which, as a part of the res gestae, can bind the defendants. ' An exception to this rule exists,, only when the statements are made to a party to be affected by them under circumstances from which his acquiescence in their truth can be fairly inferred if not expressed, and then they are entitled to little or much consideration according to the circumstances under which they are" made. The question is then suggested whether John Hall was. ' srieh a party, and whether he could bind the grantees by his assent to the statements of the complainant, or by his own independent statements- and acts. We think npt. Although the bill contains á general charge against him of co-operation with the grantees to procure the deed and its record, yet as no specific charge is made against him, predicated upon or sustained by any statement of facts, which could be met and denied, admitted or explained by an answer, neither his acts nor admissions are put in issue. He is not even charged with knowledge of the circumstances attending the execution of the deed, nor the agreement which the bill alleges was made respecting its record. Under such circumstances, however broad might be his interest in the subject matter of the suit, his acts and statements could not be offered in evidence to affect the rights of others. But the grantees neither derived title through him, nor had they a privity of interest with him. Minerva Hall, his wife, was dead at the time of filing this bill. Their children, as her representatives are. parties, and so far as the title to the property is involved he defends as their guardian. But wore Minerva Hall living, as the interest she acquired by the deed was in her own right — her ■separate estate — she and her co-grantees could no more be bound by his statements and admissions than they could be by his testimony. It is true he is a party to this suit, but it is not eveiy co-defendant in a suit in equity whose admissions are binding upon the others. “Where there are several parties on the same side, the admissions of one are not admitted to affect the others who may happen to be joined with him, unless there is some joint interest or privity in design between them; although the admission may in proper cases be received against the person making them.” (1 Green, on Ev., § 171, 174.)

But upon another principle, his admissions should be excluded. It is a well settled rule that the declarations of husband and wife are subject to the same rules of exclusion which govern their testimony as witnesses. (1 Green. Ev., § 341, and notes.) Can the husband in any case be admitted.as a witness for or against the wife in a suit affecfr ing her separate estate, or could a wife be admitted as a witness in a matter affecting the rights of the husband? The answer to these questions determines in how far the parties to this deed are affected by the conduct of Hall, even were that conduct of a character to throw suspicion over this transaction. But wo must confess we can discover nothing in the testimony calculated to excite suspicion of mala fides ujion his part. Nor do we discover in the statements of the grantees themselves, as detailed by the witnesses, any evidence tending to prove fraudulent design or undue influence, or a dishonest appropriation of the deed hy them. Their conduct and conversations, remarks and replies to inquiries, are perfectly consistent with honesty and filial duty. That they should have said they expected or designed the parents to enjoy the property during their lives, that for that period it was theirs as much as it ever was, is not inconsistent with the idea of an. absolute conveyance. It is perfectly consistent with the circumstances of the grant and its voluntary character, the natural language of gratitude and filial affection, and it would argue a strange ignorance of the power of natural ties, to discover nothing hut evidences of fraud in these uncon■sidered and unguarded expressions. They were not made under circumstances requiring solemn and deliberate admissions. So far as we can discover, no complaint was ever uttered hy the father to them, nor was any explanation ever demanded by him from them. The only ■testimony there is upon this point is that of Hiram C. Butler, and that is too general and indefinite to be satisfactory.

If then, the statements of the complainant, under the circumstances, disclosed by. the witnesses, and the acts and admissions of John Hall, are not evidence in support of the bill, and if the conduct of the grantees does not import fraud, it only remains to look at the history of the execution and delivery of the deed as narrated by the witnesses, to determine this question of fraud. Upon this point we have only the testimony of Alexander D. Crane, the attorney by whom the deed was drawn, and of Oliver Chapman, one of the subscribing witnesses, and the magistrate before whom 'its execution was acknowledged. From the testimony of Mr. Crane it would appear that the complainant went to his office alone, and procured him to draw the deed in question. That at that time he asked the witness for a will, which it apjiears he had made on a previous occasion and deposited with him, and said he had concluded to make a different disposition of his property. As a reason for this change of purpose, he stated that he had no peace at home; that his wife and Almira (Mrs. Dawson) had found out that he had made his will, and were not satisfied with its j>rovisions, and that he had no peace at home, in consequence, &c. He stated that he had deeded a portion of his property to Almira, and that she had obtained more than her share of the personal property; that he was getting old, and he wanted to make such a disposition of his property that there would ¡be no quarreling about it after bis death; that his - children were all alike to him, and he wanted to deal the same by each of them, as near as he could, with the property left, or to that effect; that he directed the deed in question to be drawn up, and also another to another daughter, (Mrs. Kennedy,) of other property; that nothing was then, or at any other time, said respecting a reservation of any life or other interest, From Mr. Chapman’s testimony it appears that at the time of the execution of the deed, Perline Cogswell, one of the grantees, read it in presence of the grantor, and asked him if it was all right, as he wanted to haye it; to which he replied that it was. This witness also states, that at that time Mr. Cogswell appeared as sane, as cheerful, and as well as witness ever saw him, and that he said in substance, “lam deeding some considerable of my property to my children, but I have got enough left, and as much as I shall ever want.” Whether the deed was delivered or not, he does not know.

We look in vain to this testimony for evidence of fraudulent design,, or the exercise of undue influence by the grantees in this transaction; nor can we discover anything which would tend to the conclusion that, the deed was to be reserved from record, and not to operate immediately. On the contrary, everything indicates that the complainant was uninfluenced and unrestrained. Ho appears to have designed the distribution of his remaining property, (for he had already, as it seems, made provision for Almira Dawson,) as nearly equal as possible among his other children. Provision had been made, it would appear from the testimony of Mis. Dawson, for the maintenance of himself and wife, by her; and from aught that appears, ample compensation had been made for such support Indeed, such is the almóbt inevitable conclusion from all the testimony. The testimony of Mr. Chapman discloses a transaction so natural — so perfectly consistent with strict integrity upon the part of the defendants concerned, that we can draw no -conclusion from it, to sustain the charge that' undue influence was exercised to obtain the deed, or faith violated in procuring its record.

Decree affirmed.


text:
    Way, Receiver of the Marshall Mutual Insurance Company vs. Billings.
    The production, of the charter and acts of user under it, are sufficient to prove the existence of a corporation.
    The admission in a premium note, of the policy of insurauce, its number and date, aro sufficient evidence for the purposes of trial, of the.actual issuing of, and contents of such policy, in the absence of any special plea or notice of dofense, for want of consideration. Plaintiff, in an action upon a premium note, having given the defendant notice to produce the policy upon which it was given at the trial, which he refused to do, made the affidavit required by section 100, page 461, R. S., 1846,' and setting forth the facts in the knowledge of the defendant, to be the issuing of the policy, its number, its receipt by defendant, its contents, and the policy: Held, that under the affidavit plaintiff was entitled to examino the defendant as to the existence of the policy, its receipt by him, its contents, and to its production in Court, if in his possession, or subject to his control.
    "Where a party sworn as a witness under R. S., p. 461, § 100, gives an answer clearly evasive and uncandid, the Court should permit the broadest latitude of inquiry necessary to elicit the truth and effectuate the object of the law.
    The defendant being sworn as a wituess under the statute, (R. S.} 1846, page 461,) was asked if he ever received a policy of insurance of a certain number, (641,)f to which ho replied: “I don’t recollect the number.” Afterward he was asked the following several questions, •riz: If he ever/received the policy of insurance in question? If he had in his possession a policy of insurauce issued by the company? Also, to look upon the policy of insurance in his possession, and to state whether it was numbered 641. Held, that all the questions were competent, and that under his affidavit the plaintiff had the right to examino the defendant generally, as to the fact of his having received the policy, and cyery particular relating to it.
    Case reserved by the County Judge of Lenawee County, upon motion to set aside a non-suit, and for a new trial.
    Tliis ease was brought in tbe Lenawee County Court, upon a promissory note given by tbe defendant to tbe Marshall Mutual Insurance Company,, in consideration of Policy No. 641, issued by said company to defendant, dated October 26, 1848. Tbe declaration set forth tbe promissory note, application, policy of insurance, loss by fire, an assessment made by order of the Court of Chancery, tbe dissolution of tbe corporation, and tbe appointment of plaintiff as receiver, Ac. Plea, general issue, and nul tiel corporation. The cause was brought on for trial on tbe 4th day of February, 1851. The act of incorporation of tbe Marshall Mutual Insurance Company was produced in evidence and it was proved that tbe company kept an office in the village of Marshall, issued policies of insurance, bad a secretary, Ac.
    Tbe execution of tbe application for insurance and premium note was admitted by defendant, and that said note was given to Mr. Rice, tlio agent of the company residing at Adrian, to bo forwarded to the company, at Marshall. James M. Parsons testified that ho was secretary of tire company at that time, and that he received said application and .premium noto from Mr. Rice, and that on the day of the date of said note, he issued a policy of insurance pursuant to the application, to the defendant, and forwarded the same to him at his place of residence, hut was unable to state whether the said policy was forwarded by mail or private conveyance, that said application was approved by Philo Dibble, at that time one of tbe directors of said company.
    The plaintiff then offered in evidence a certified copy of a decree of the Circuit Court for the comity of Wayne, in Chancery, in favor of Chas. M. Lee, against the Marshall Mutual Insurance Company, showing a loss by fire in the sum of $6,267, which was objected to by the defendant on the ground that defendant had not been identified as a member of tin? company, and the objection was sustained by the Court. The plaintiff having given the defendant notice to produce the policy of insurance in question, which defendant refused to do, made an affidavit as required by section 100, page 461, R. S. 1846, and called said defendant as a witness, who testified that he did not Imow the number of the policy. Several questions wore then propounded to the witness which were overruled by tbe Court, whereupon the plaintiff demanded that the defendant should be sworn in chief, wbicb was objected to by defendant’s counsel on tbe ground that under tbe general issue pleaded without special plea, the defendant could not be called on as a witness, which objection was sustained by the Court. The plaintiff then offered a decree of the Calhoun Circuit Court, in Chancery, malting an assessment of 20 per cent, on all notes in force on the 8th of January, 1844, which was objected to and the objection sustained. Tbe plaintiff offered affidavits of tbe publication of Motices of assessment, which was objected to and objection sustained. Tbe plaintiff finally offered in evidence a decree of the Calhoun Circuit Court, in Chancery, dissolving said corporation, and appointing’the plaintiff receiver, wbicb on objection of defendant on the ground that he was not proven to. be a member of the company, was ruled out by the Court. Tbe plaintiff became non-suit, and thereupon moved for a new trial.

      I. E. Crary, for plaintiff.

      Baker & Millerd, for defendant.
   By the Court, Martin, J.

Tlie testimony exhibited on the trial of this cause was sufficient to prove the existence of the Marshall Mutual Insurance Company; (See Cahill vs. Kal. Mut. Ins. Co., 2 Doug., 124; Henriques vs. Dutch West India Co., 2 Ld. Raym, 1535; Den vs. Van Hauten, 5 Halst, 270; Congreg. Soc. vs. Perry, 6. N. Hamp. 164; All Saints’ Church vs. Lovett, 1 Hall, N. Y., 191; Johns vs. Farm, & Mech’s. Bank, 2 Blackf., 367;) and also, the application of the defendant for insurance of his property, and the execution and delivery of the premium note.

The admission of the defendant in that note, of the policy, its number and date, was sufficient prima facie evidence of its existence for the purposes of the trial, and the plaintiff could not be compelled by any known rule of evidence to prove the actual issuing, and contents of such policy, after such admission, in the absence of any special pica, or notice of defense for want of consideration.

But conceding the necessity of proving the contents of the policy, and its actual receipt by the defendant, the plaintiff was clearly entitled to answers to the questions propounded by him to the defendant. He had given notice for its production upon the trial, or that parol proof of its contents would be given. Failing in procuring the production of the policy, he made an affidavit as prescribed by § 100 of chapter 102 of the revised statutes, that certain facts material to the issue in this cause were within the knowledge of the defendant, and that there was no competent witness, whose testimony he could procure, by whom such facts could be proved. “Thut the said facts so in the knowledge of said defendant are” (in .the language of the affidavit-,) “that the policy of insurance mentioned in the declaration in this case, numbered 641, was issued, and received by the said defendant-, and the contents of such policy, and the policy itself.” Under this affidavit the plaintiff was entitled to examine the defendant as to the existence of the policy, its receipt by him, its contents, and to its production, if in his possession or subject to his control. In short, he had all the right which a Court of Equity could have afforded him upon a bill of discovery. The defendant was accordingly sworn, and having testified that he made the application for a policy of insurance, upon which it was claimed the policy in question issued, he was asked, “Did you ever receive a policy of insurance from the Marshall Mutual Insurance Company, numbered 641?” To this question the witness replied; “I don’t recollect the number’’

Shifting the inquiry, then, so as to attain the object of the examination, the witness was then asked the following questions:

1. Did you ever receive a policy of insurance issued by the Marshall Mutual Insurance Company ? ”

2. Have you in your possession a policy of insurance issued by the Marshall Mutual Insurance Company ?

3. Have you in Court a policy of insurance issued by the Marshall Mutual Insurance Company ?

4. Will you look upon the policy of insurance in your possession and .state whether it is numbered 641 ?

Each of these questions was met by objections of the defendant’s ■counsel, and the objections sustained by the Court.

It is difficult to conceive upon what grounds these questions were prohibited. The answer of the witness, defendant, to the question whether he ever received a policy of insurance from the company, numbered 641, was so clearly evasive and uncandid, that the Court would not only have been warranted, but was required from regard to the rights of the plaintiff and respect to its own authority, to permit the broadest latitude of inquiry necessary to elicit the truth, and effectuate the objects of the law. To permit a witness to avoid a discovery by so palpable an evasion would render Courts of justice utterly incompetent for the purposes of their creation. We know of no immunity to the defendant in such cases, that would not attach to any witness, and a reluctant witness may always be pursued with questions calculated to withdraw him from his defiant position.

But irrespective of these views, the questions were clearly competent. The plaintiff had a right to examine the defendant generally as to the fact of his having received a policy from the company, and every particular respecting it. Suppose upon such an examination the defendant had testified to the receipt of a policy about the time of the transaction, but that he had lost it, and could not state its number or contents. Woidd the plaintiff have been estopped by such answers from pursuing the inquiry further to ascertain whether it was executed under this application, for insurance, or would not a Court, or a jury, were one empannelled, have been authorized, and indeed bound to conclude that the policy lost, was the one sought by the plaintiff ? Most assuredly so.

The error of the Court below in this particular, evidently crippled the plaintiff in the further progress of the cause, and many of the questions subsequently raised may he clearly traced to it. It becomes therefore unnecessary to consider the remaining questions, and it must be certified that the non-suit should be set aside and a new trial granted.

Certified accordingly.


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    Carll vs. Brown.
    The English rule that a negotiable noto, payable on demand, does not become over-due by mere lapse of time,' has been modified in this country, so that a promissory note thus payable, unless indorsed within a reasonable time, is considered overdue and dishonored.
    What shall be the reasonable time in which a note payable on demand, shall be considered overdue, is a matter to be determined by the Court upon the facts of each particular case.
    A negotiable note, bearing date 25th May, was sued by the bearer on the 19th of June following: Held, that the note could not be considered overdue, (no prior demand being shown,) before it came to the hands of the bearer.
    Error to St. Clair Circuit.
    The action was commenced in the St. Clair County Court, June 19th, 1848, upon a promissory note, drawn May 25th, 1848, payable to A. Bean or hearer, on demand. The defendant sought to set off a negotiable note of which he was the bearer,' made by Bean, and also the amount of another note made by another person, hut which the defendant claimed Beau had agreed while he held the note in suit, he would receive and apply upon' the note. These set-offs, on objection by the plaintiff, were ruled out, and judgment rendered against defendant for the full amount of the note. The cause was taken by certiorari to the St.Clair Circuit, where the judgment was reversed; upon which, a writ of error was sued out from this Court. It was insisted upon the trial below, and on the argument in this Court, on the part of the plaintiff, among other things, that the case was governed by the provision of section 18, p. 380, R. S., 1846, of the act relating to County Courts, which provides for a set-off against the plaintiff in the action only, and not against the original holder or assignor of commercial paper. This and several other questions, discussed upon the argument, it became unnecessary to examine, and they were not considered in the determination of the case in this Court.

      J. J. Falhenbwry, for plaintiff.

      W T. Mitchell, for defendant.
   By the Court, Johnson, J.

Several questions were raised on the trial of this cause in tho Court below, but the principal one, and the only one necessary to be examined for the purpose of determining- this suit is, whether the note in question was over-due and dishonored at the time it came into the hands of the plaintiff, so as to allow the defendant to avail himself of his set off.

The record shows that the note in question was dated on. the twenty-fifth day of May, 1848, and that prior to the twentieth day of June following, Carll, the plaintiff, became the owner of the note, and it is not insisted that he had at the time of the purchase any knowledge of the equities between Bean and Brown.

In England it has been held, and such is the general current of authorities, that a negotiable note, payable on demand, does not become over-due by mere lapse of time so as to let in the maker to an equitable defense at the suit of the indorsee. (Barrough vs. White, 4 B. & C., 335; S. C., 10 E. C. L. R., 345.)

Something more than lapse of lime must be brought to the knowledge of the indorser to charge him with the equities of the original parties. The obvious policy of this rule is to make this species of paper at all times a safe circulating medium, and placing it upon the same footing of other negotiable paper before maturity.

In. the case of Brooks et al. vs. Mitchell, (9 Mes. & Weis., 14,) it was held that a note, payable on demand, with interest, made in 1824, and indorsed to the defendant in 1838, and upon which no interest had been paid for three years immediately preceding the indorsement, was not subject to an equitable defense as between the original parties. It was urged in that case that the non-payment of interest for three years was sufficient to put the indbrsee upon inquiry. But Parke, B,, expressing the opinion of the Court, said: “ I cannot assent to the arguments urged in behalf of the plaintiffs. If a promissory note payable on demand, is after a certain time to be treated as over-due, although payment has not been demanded, it is no longer a negotiable instrument; but a promissory note, payable on demand, is intended to be a continuing security?

In this country the rule is somewhat modified, and the general doctrine is, that a promissory note, payable on demand, unless indorsed within a reasonable time, is considered over-due and dishonored. (Range vs. Cary, 1 Met., 369; Thurston vs. McKnown, 6 Mass., 428; Field vs. Nickerson, 13 Mass., 138; Nevins vs. Town, 6 Conn., 5; Furman vs. Haskin, 2 Caines, 368; Sanford vs. Mickles & Forman, 4 J. R., 224; Lozee vs. Dunkin, 7 J. R., 70; Sice vs. Cunningham, 1 Cow., 410.) And what that reasonable time is, is a question for the determination of the Court upon the facts of each particular case. Thus, in the case of Furman vs. Haskin, above cited, the Supreme Court of New York held that a note payable on demand, indorsed eighteen months after date, should be deemed to be over-due and dishonored, for the purpose of allowing the maker to set up an equitable defense.

After that, the same Court held in the case of Sanford vs. Mickles & Forman, above cited, that a note payable on demand, indorsed five months after date, was not allowed to be impeached by the maker, at the suit of an indorser.

And again, the same Court held in the case of Lozee vs. Dunkin, .■above cited, that the maker of a similar note was allowed to show payment, and thereby defeat the action, at the suit of a bona fide indorser, Moo and a half months after date. The Judge in delivering the ¿opinion of'the Court in this case, very consistently remarks, that “there is no precise time when a note of this kind is deemed to be dishonored.” Consequently, no legal measure of time, independent of circumstances, can be gathered from the authorities of that State.

In Massachusetts, nearly the same uncertainty exists. Two months and a half is the shortest time that the Courts of that State have allowed such a defense to be set up. Stevens vs. Bruce, (21 Pick., 139.) On the other hand, they refused to allow a note to bo impeached, indorsed thirty days from date. Range vs. Cary, (1 Met., 369.) In this case, the Court refused to grant a new trial, on a charge of the Court below, to the jury, that such a note could not be considered dishonored in thirty days from dateand I have been unable to find any case where it has been held to be over-due and dishonored short of that time. So that whether we adopt the one rule or the other, the result to this suit must be the same.

One, seems to have been adopted with particular reference to the commercial interest of that country; while the other suffers a relaxation of the rule, to meet the exigencies of particular hardships. Both are decisive against the defendant in this cause, and the judgment therefore, of the Circuit Court, must be reversed, and that of the County Court affirmed.


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      Dibble et al. vs. Rogers et al.

    Error will not lio to reverse tho decision of a Court upon a matter within its discretion.
    Thus, where under the authority of the 76th section of the act to consolidate the laws in relation to County Courts, &c., (Sess. Laws 1849, page 290,) empowering the Circuit Court, in case of certiorari, &c., to affirm, or reverse the judgment of the County Court, in whole or in part, or to give such other judgment as justice shall require, and in its discretion, to remand the cause to the County Court for a new trial, the Circuit Court reversed the judgment of the County Court, remanded the cause and ordered anew trial, it was held upon error brought to reverse so much of the judgment of the Circuit Court as remanded the cause and ordered a new trial, that the Court had discretion as to granting such order, and that their decision could not be reviewed.
    Plaintiffs below were lessees of defendants below by lease, containing a stipulation for payment of all the rent ($1,200) of the term, iu repairs on the premises. They brought their action in the County Court, against their lessors, (defendants below,) for money, work, labor, repairs, materials, &c., done and furnished for the demised premises, claiming $1,500. The defense set up was a special contract, to-wit: tho lease aforesaid, under which it was claimed the money, work, &c., if any, was paid, furnished, &c. Upon the verdict of the jury, judgment was rendered for the plaintiffs below, for $1,222 61. The Circuit Court reversed the judgment, remanded the cause, and ordered a new trial. This Conrt were of opinion thatif they had powerto review the judgment of the Circuit Court, it should properly bo affirmed.
    Error to Barry Circuit Court.

      I. S. Orary, for plaintiffs in error.

      H. S. Jennings, for defendants in error.
   By the Court, Green, J.

This action was originally brought by the defendants in error against the plaintiffs in error, in the County Court of Barry County. The declaration contained the common counts for money lent, money paid, money had and received, and for board, work and labor dono and performed, and repairs made upon and materials furnished, for the gristmill and saw-mill of the defendants below, in the county of Barry, at the request of the said defendants.

To the declaration, the defendants below plead the general issue, and gaye notice that they would give in evidence in bar of the plaintiffs’ action, that if the plaintiffs ever laid out or expended any money, furnished any materials or hoard, done or performed any work or labor, done any repairs on the said defendants’ milis, or furnished any materials, as stated and set forth in their declaration, it was under and pursuant to the terms of a special agreement in writing, a copy of which is set forth in the notice.

This special agreement was a lease executed by the parties, dated the 4th day of February, A. D. 1847, whereby the said Dibble <fe Hayes leased their grist-mill and saw-mill in Barry county, with the appurtenances, to the said Rogers & Messer, for the term of three years from the 15th day of that month, for the consideration of twelve hundred dollars, which sum the said Rogers & Messer were to pay in repairs of the mills, to he laid out in a faithful and judicious manner, as specified in said agreement. Rogers & Messer were to have the privilege of expending the whole amount in repaira the first year, if they thought proper to do so.

A large amount of testimony was adduced on the trial in relation to moneys paid out, work and labor done, materials furnished and repairs and improvements made upon the mills in question, by the plaintiffs below, and tending to show that the whole was laid out, furnished and done with the knowledge and consent, or under the direction of, the defendants below. There was also some testimony in relation to the payment of money for taxes upon the premises by the plaintiffs below.

The defendants below proved the execution of the lease, and relied upon it as a bar to the action. Several exceptions were taken to the rulings of the Court and the charge given to the jury.

The jury rendered a verdict in favor of the plaintiffs and against the defendants below, for the sum- of $1,222 61 damages, upon which judgment was rendered.

The plaintiffs in error removed the judgment into the Circuit Court for the county of Barry, by a writ of certiorari. The Circuit Court reversed the judgment of the County Court, and remanded the cause and ordered a new trial. The cause is now brought into this Court by writ of error, to reverse so much of the judgment of the Circuit Court as remands the cause to the County Court and orders a new trial.

Section Y6 of the act to consolidate the laws in relation to County Courts, and for other purposes, (Laws of 1849, p. 290,) authorizes the Circuit Court, in cases of certiorari, &o., to affirm or reverse the judgment of the County Court, in whole or in part, or to give such other judgment as justice shall require, and in its discretion to remand the cause to the County Court for a new trial.

The general rale has long been well settled, that error will not lie upon what is matter of discretion in a Coiuf. In the People vs. Baker, (3 Hill, 159,) the indictment contained three counts for felonies; 1st. Receiving stolen goods; 2d. Burglary; 3d. Grand larceny. Upon the trial, and before any testimony was given, the counsel for the defendant moved that the prosecuting attorney be compelled to elect whether he would proceed upon the count for receiving stolen goods, or upon the others. The motion was overruled, and the defendant’s counsel excepted. The Supreme Court held that it was in the discretion of the Court below, to grant the motion or not, and being a matter within the discretion of the Court, error would not lie to review the decision, and such, decision was not subject to exception. In Rapelye vs. Prince, (4 Sill, 119,) it was held that where a motion is addressed to the discretion of the Court, its decision upon such motion, whether right or wrong, does not make a point upon which an exception can properly be taken; and Bronson, Justice, says, that “when parties except upon such matters, the Judge should strike the exception out of the bill before he affixes his seal

In Mappa vs. Pease, (15 Wend., 672,) the Court below granted a motion for a non-suit, upon the ground of a supposed variance, which it was authorized by the statute to disregard, and which the Supreme Coiut was of opinion it should have disregarded; yet the power to do so being discretionary, it was conceded that it was not a ground of error. (See also 7 Verm. R., 476.) .

It has often been decided that the granting or refusing of a new trial is a matter of discretion, and therefore not the subject of error. (6 Conn., 59; 6 Cranch, 206; 1 U. S. Cond. R., 260, and note; 5 Cranch, 11.)

In this case, the power to remand the cause to the County Court, and order a new trial, is expressly declared by the statute to be discretionary with the Circuit' Court, and that discretion is not limited or controlled by any statutory provision. It would seem to be very clear, therefore, that error will not lie to review the action of the Circuit Court in the exercise of this discretionary power.

But if this Court had power to review the decision complained of, upon a writ of error, I am of the opinion that it should not be reversed. The plaintiffs below claimed $1,500, and recovered a judgment upon the verdict of the jury, for $1,222 61. This exceeded the amount of the rent stipulated to be paid upon the lease, and for the excess, if the expenditures for which it was incurred, were made at the instance and request of the lessor’s, an action might be maintained, and a recovery had upon the common counts. This must depend upon the testimony; and a juiy is the proper tribunal to determine its effect. I think therefore, the Circuit Court, in the exercise of a sound discretion, very properly remanded the cause to the County Court, and ordered a new trial.

The judgment below must be affirmed, with costs to the defendants in error.