Volume 1 — Douglas's Michigan Reports

<p>Plaintiffs, by their agents, shipj>ed goods at Port Kent, on Lake Champlain, consigned to them at Marshall, Michigan, care of H. C. & Co. Detroit, by the New York and Michigan Line, who were common carriers, and with whom they had previously contracted for the transportation of the goods to Detroit, and paid the freight in advance. During tlieir transit, and before they reached Buffalo, the goods came into the possession of carriers doing business under the name of the Merchants' Line, without the knowledge or assent of die plaintiffs, and were by them transported to Detroit, consigned by H. P. & Co. of Buffalo, to the care of the defendants^ and delivered to llic defendants, who were personally ignorant of the manner in which they came into die possession of the Merchants7 Line, and of the contract of the plaintiffs with the New York and Michigan Line, although they and also H. P. & Co. were agents for and part owners in the Merchants' Line. The defendants being warehousemen and forwarders, received the goods and advanced the freight upon them from Troy, N. Y. to Detroit* On demand of the goods by the plaintiffs, the defendants refused to deliver them until the freight advanced hvthom-and their charges for receiving and storing the goods, were paid; claiming a lien upon ihe goods for such freight and charges. In replevin brought for the goods, Held, “ that the plaintiffs were entitled to the possession of the goods without payment to the defendants of such freight and charges, and that the defendants had no lien upon the goods for the same.</p> <p>A common carrier is bound to receive and carry goods, only when offered for carriage by their owner or his authorised agent, and then only upon payment for the carriage in advance, if required.</p> <p>If a common carrier obtains possession of goods wrongfully, or without the consent of the owner, express or implied, and, on demand, refuse to deliver them to the owner, such owner may bring replevin for the goods, or trover for their value.</p> <p>To justify a lien upon goods for their freight, the relation of debtor and creditor must exist between their owner and die carrier, so that an action at law might be maintained for the payment of the debt sought to be enforced by the lien.</p>

<p>Whore a boundary of land, conveyed by patent from the United States, is described by course and distance, terminating at a post, and neither any marks indicating such boundary, nor any post indicating its termination, are to be found on the land, and no evidence is adduced, showing where such post was originally placed; parol evidence, that a line was found marked upon the trees upon the land, but variant from the call of the patent, and not indicated by the monument called for in the patent, was the actual line surveyed, run, and marked, as such boundary, by the government surveyor, will not be admitted, to alter or vary the boundary, as described by course and distance in the patent.</p> <p>In the construction of grants, both course and distance, must give way to natural or artificial monuments or objects; and courses must be varied, and distances lengthened or shortened, so as to conform to the natural or ascertained objects, or bounds called for in the grant; but where there is nothing in the conveyance, to control the call for course and distance, the land must be run according to the course and distance given in the description of the premises.</p> <p>A patent of land from the United States, cannot be impeached in an action at law, on the ground either of fraud or mistake, in any of the proceedings required as prerequisites to its issuing, by one claiming under a subsequent grant.</p> <p>A grant of land, (except as a release,) is inoperative and void, if, at the time of the grant, the lands are in the actual possession of another person, claiming under a title adverse to that of the grantor.</p>

<p>A defendant who is found guilty and adjudged the father of a bastard child and chargeable with its maintenance, on complaint under the provisions of Chapter 6, Title 9, Part 1 of the R. S. is not liable for this costs of the proceeding.</p> <p>Costs are in consequence of some default, and are not awarded by the common law, but depend entirely upon statutory provisions. Where no authority is given by statute, there can be no taxation.</p>

Motion in arrest of judgment, after verdict of guilty, on the trial of the defendant on an indictment for larceny in the Circuit Court for the county of Washtenaw, before Hon. Wm. A. Fletcher, Presiding Judge, who reserved the questions arising on the motion for the determination of this Court. The grounds of the motion appear in the opinion of the Court.

In error on certiorari from three justices of the peace For the county of Wajme, composing a court of special sessions.

<p>Evidence of the statement of an agent, made nine months after he had sold property for his principal, that he knew at the time of the sale that it was good for nothing, is inadmissible to affect the rights of his principal.</p> <p>Evidence that the vender of property represented to the purchaser, at the sale, that it was good, without knowing it to bo so, and that it proved to be bad, will not establish fraud in the contract of sale. It must be further proved that the vendor lenew such representation to be false when he made it.</p> <p>Representations as to the quality of property, made by the vendor pending a negotiation for its sale, are merged in an express warranty of such quality, made by him on the consummation of the contract of sale which results from such negotiation; and, unless the purchaser can prove that such representations were known by the vendor to be false when he made them, and thus establish fraud, he must rely solely upon the warranty, for the remedy of any injury sustained in consequence of the falsehood of such representations.</p> <p>The agent of W. sold a fanning mill to F. representing that it was good, and would do a good business, and took F.*s note for it, to which it was added, that the note was given for the mill which was warranted to be good and to do a good business, and that if it was not good, F. was to have the privilege of returning it within a certain time, and W. was to furnish a new mill, in exchange, which should be good. In an action by W.’s administrators, on the note, Held, that unless it was shown that W. or his agent knew at the time of the sale that the mill was not good, F. was bound to return it according to the condition annexed to the note, before he could avail himself of any defect in the mill on his defence.</p>

<p>A writ of summons returnable before a justice’s court, will not bo set aside on account of the omission of the plaintiff to comply with the statute, (E. S. 405, § 5,) requiring non-resident plaintiffs to give security for costs before process shall issue; provided the plaintiff gives such security nunc pro iunc, before a motion to set aside the writ is granted.</p> <p>It has been the settled practice of the Circuit Courts to permit original writs to be endorsed nunc pro iunc by security for costs, or by the plaintiff’s attorney, where cither of these endorsements, (which, by the statute E. S. 418, § 4, § 8, are required to be made before service of the writ,) have been omitted; and this, even after motion made to set aside the writ, on the ground of such omission.</p>

<p>Motion for leave to file an information in the nature of a quo warranto, to inquire by what right Henry Tisdale claims the office of Sheriff of Jackson county.</p>

« Error to the Oakland Circuit Court. This was an action of slander tried before Hon. Chas. W. Whipple, Presiding Judge. The facts fully appear in -the opinion of the Court.

A motion was made by the appellees, to dismiss the appeal on the ground that the appellant had made default in the Court below, by failing to appear and argue the cause at the hearing whereupon the decree liad been entered, and that, therefore, no appeal would lie from such decree to this Court. The facts fully appear in the opinion of the Court.

On the application of George Lamberton, the relator, a rule was granted during the present term of this Court, requiring the respondent, Orange Foote, a justice of the peace for the town of Avon, Oakland county, to show canse before this Court, why the mandate of the Court should not be issued, commanding him to enter the verdict rendered by the jury in a cause tried before him, December 19, 1842, wherein the relator was plaintiff, and Jacob and Marshall S. Hadley, were…

In error, on certiorari from Wayne Circuit Court. The record returned by the Court below, set forth an agreement between the parties to this cause, to submit certain matters in difference between them to arbitration, the award of the arbitrators, and a judgment thereupon rendered in the Court below; all of which were in pursuance of Ch. 7, Title 4, Part 3 of the Revised Statutes.

Error, to Wayne Circuit Court. Ejectment, brought by the defendants in error, to recover possession of lot 56, section 1, in the city of Detroit. Plea, not guilty. The cause was tried at the November term, 1839, before Hon. Geo. Morell, Presiding Judge.

This was an action of replevin to recover possession of certain goods, wares and merchandize, tried in Wayne Circuit Court, at the November term, 1841, before the Hon. Geo. Morell, Presiding Judge, who reserved the questions arising upon the facts found by the special verdict, for the opinion of this Court thereon.

In error on certiorari from two justices of the peace for tbe county of Berrien. This was a proceeding under the statute “ Of forcible entry and detainer,” (R. S. 490,) and the act amendatory thereto. (S. L. 1840, p. 83.) Beeson filed, before said justices, a complaint against Byrne for holding over possession, as his tenant, of a certain quarter section of land leased to him, contrary to the terms and conditions of the demise.

Case certified from Kalamazoo Circuit Court. The plaintiff brought this suit originally before a justice of the peace, and failing to appear on the day of trial, judgment of nonsuit and for costs was rendered against him; whereupon, he afterwards appealed the case to the Kalamazoo Circuit Court. The defendant moved the latter Court to quash the appeal, on the ground that the case was not within the statute authorizing an appeal to be taken.

The plaintiff brought assumpsit upon two promissory notes, made by one Martha Lindsey and by the defendant, as surety, payable six months after date, to the order of the plaintiff. Plea, general issue.

Joseph Circuit Court. Assumpsit, brought by the plaintiff in error, upon a special contract, and upon the bill or note mentioned below. On the trial of the cause in the Court below, before the Hon. E. Ransom, Presiding Judge, the plaintiff offered in evidence the deposition of one Yates, taken under the statute. R. S. 433.

This was an action of replevin, tried at the September term, 1842, of the Circuit Court, before the Hon. Cha’s W. Whipple, Presiding Judge. The defendant in error was the plaintiff in the Court below. The declaration was for the unlawful taking and detention of one span of horses, the property of the plaintiff. On the trial, the defendant below admitted the taking and detention of the horses, and that they were the property of the plaintiff.

This was an indictment against Harlan, for violating the provisions of sections 16 and 18 of ch. 5, tit. 1. pt. 4th, of the revised statutes of this state. The first count, which was framed under § 18 of the statute, charged the defendant with knowingly having in his possession a press and other instruments, adapted and designed for making counterfeit coin, to wit, Mexican dollars, with intent to use the same.

The complainant filed his bill in the court below, against the defendants, in the ordinary form, to foreclose a mortgage upon certain real estate in the village of Niles, Berrien county, executed by Willard in his life time, to wit, on the 25th day of November, 1835, and conditioned for the payment of $1000 in four years from the date of the mortgage, and interest thereon, payable annually.

The complainants filed their original bill in the Court below, against Eurotas P. Hastings alone, setting forth the following facts: In… Held: for and on account of them or any of them, in full payment and satisfaction of all debts and liabilities of the party of the first part, to the state of Michigan; subject, nevertheless, to all and any discrepancies in the accounts and demands, arising from errors or contingent claims, and also subject to all just charges of counsel…

This was an action of covenant. The declaration contained two counts.

This was a motion, by the defendants in error, to strike from the record the bill of exceptions accompanying the writ of error and return thereto in this cause. The writ was sued out December 7th, 1843. The exceptions appear to have been signed December 9th. The plaintiffs in error had assigned errors, and the defendants joined in error in the common form, before the motion was made. The errors assigned were special, and mainly upon the matters in the bill of exceptions.

On the 5th day of October, 1840, Seaman, the relator, became the purchaser of a certain quarter section of land, on a sale of the same by the proper county treasurer, for the delinquent taxes of the year 1837, and received from the treasurer a certificate of the sale, which entitled him to a deed of the land after the expiration of two years from the sale, unless the same was sooner redeemed.

This was an information in the nature of a quo warranto, requiring the defendants to show by what right they exercised certain corporate privileges and franchises. No formal issues were joined, but the case was heard upon stipulation between the parties. The following were the grounds relied upon by the Attorney General, and those facts admitted by the stipulation, out of which the legal principles decided by the court arose. 1.

This was an action of assumpsit, brought by the plaintiff in the Calhoun Circuit Court, to recover certain fees clue him for services rendered as clerk of that court. Plea, general issue.

Case certified from Oakland Circuit Court. This was an action of assumpsit to recover the amount of a promissory note endorsed by the defendant.

Jacob M. Wilsie brought replevin against Willing, the relator, in a justice’s court, and recovered a judgment. The relator removed the cause by writ of certiorari to the Circuit Court for the county of Jackson, where the judgment of the justice was reversed, at the April term, 1842.

This was an action commenced in the Circuit Court for the county of Wayne, under the act of 1839, providing for “the collection of demands against boats and vessels.” The cause was tried at the May term of said Court in 1842, when a verdict was found and judgment rendered for the plaintiffs below.

Debt on a judgment rendered before a justice of the peace. Rockwell was plaintiff and Howard defendant in the Court below.

On the 5tb day of October, 3 838, an affidavit for an attachment, under the statute, (R. S. 506,) was made before the Clerk of the Circuit Court for the county of Branch, and an attachment issued, at the suit of Abiathar Culver, against Samuel R. Bradley, the relator, by virtue of which certain real estate of the relator was levied upon.

Error, to Oakland Circuit Court. This was an action on the case for slander. Bowers was the plaintiff, and Thompson the defendant in the Court below. The declaration alledged that Thompson uttered and published that Bowers swore falsely in giving his testimony on the trial of a cause between Thompson and one Ellis, at the May term, 1838, of the Oakland Circuit Court.

Case certified from Wayne Circuit Court. This suit was commenced by attachment against the defendant as a non-resident debtor, under the provisions of the statute, R. S. 506. The attachment was issued on the 15th day of June, 1839. The declaration was in indebitatus assumpsit for goods sold and delivered. Plea, the general issue.

Case certified from St. Joseph Circuit Court. Assumpsit upon a promissory note made by the defendant, for the sum of $100, dated the 22d day of July, 1838, and payable to the Bank of Niles.

This action was originally brought by Joy against Thompson, before a justice .of the peace, February 24, 1843. The declaration was in assumpsit upon a promissory note made by the defendant May 1, 1822, and payable on the first day of October, in the same year. Pleas, non-assumpsit, and actio non accrevit infra sex annos. Replication, that the defendant did promise, &c. within six years.

Case certified from Eaton Circuit Court, by the Hon. Chas. W. Whipple, Presiding Judge. This was an action of assumpsit upon the defendant’s guaranty of payment of a promissory note for $-300, made by C. B. Dunbar, December 10, 1836, payable to the defendant or bearer, two years from the first day of May (then) next.

This suit was originally brought by Wight, against Warner and another, before ajustice of the peace, who rendered judgment for the plaintiff, which was reversed by the Circuit Court on the removal of the cause to that Court by certiorari.

Case certified from Livingston Circuit Court. This cause was tried at the November term, 1841, of the Circuit Court, before the Hon. C.W. Whipple, Presiding Judge. The action was trespass de bonis asporlatis. Plea, general issue. It appeared on the trial that the plaintiff and one Daniel Lane were duly served with a summons, at the suit of one Sandford Murray, to appear before the defendant, who was a justice of the peace, at his residence, on the 9th of November, 1839.

(Vide S. C. Walk. Ch. R. 99.) The complainants filed their bill in the Court of Chancery, to obtain the specific performance of a contract, entered into between them and the defendant, July 1st, 1839.

Dodge sued Bostwick in the court below in assumpsit upon a promissory note made by the latter, payable to Samuel F. Hooper or order, who endorsed it before maturity to the plaintiff below, in payment of a debt due to him from Hooper.

On the 19th day of February, 1839, Charles P. Dibble sued out a writ of attachment against Charles T. Moffatt, an absconding debtor, returnable ih the Circuit Court for the county of Calhoun, which was served on the same day, by attaching certain real estate of the defendant, and by filing with the proper Register of Deeds, a copy of the writ, and a statement, as required by the statute, (R. S. 507, %'&,) in order to perfect the lien upon the property.

The decree and facts upon which it was based, as agreed upon, were as follows: In 1836, Julia A. Anderson, as administratrix of her late husband, John Anderson, (who died intestate, leaving no children, and largely indebted,) acting under an order or license of the Court of Probate authorizing a sale of certain real estate of the intestate for the payment of his debts, sold certain out lots and tracts of land in and near the city of Monroe, mentioned in the order, on the…

John Gilbert and Abel Godard brought an action of debt against John Drew, the relator, in the Circuit Court for the county of Washtenaw, to recover the penalty for usury under the following statute : “ Whenever a greater rate of interest than is allowed by law, shall have been paid, the party paying the same may recover back threefold the amount of the excess of such interest so paid, by action of debt: Provided, such action shall be prosecuted within one year after such…

This suit was commenced by attachment returnable to the Michilimackinae Circuit Court. On the 29th day of March, Dousman, the plaintiff, was served with a citation, under the provisions of the statute, (S. L. 1840, p. 53,) to appear before an Associate Judge of that Court, on the 1st day of April (then) next, at 9 o’clock A. M., and show cause why the attachment should not be dissolved.

Case certified from the Lenawee Circuit Court. This suit was commenced by writ of attachment against the property of the defendant. The plaintiffs were non-residents of this state.

Question reserved and certified from Berrien Circuit Court. Assumpsit against the defendants as endorsers of a bill of exchange for $200, drawn in this state, upon a person residing in the state of New York, and payable at the Bank of Buffalo, in that state. Plea, non-assumpsit.

Error, to Wayne Circuit Court. This was an’ action of assumpsit, brought by the defendants in error, against tbe plaintiffs in error, as acceptors of two bills of exchange, in all respects alike, of each of which the following is a copy: “ $6000. Farmers’ Bank of Homer, Aug. 5, 1838. “Four months afterdate, pay to the order of S. K. Stowe, at the Troy City Bank, six thousand dollars.

(Vide S. C. Harr. Ch. R. 172 — 193.) The bill was filed September 5, 1839, and states that Kirby, the complainant, and the defendant, Justus Ingersoll, on the 9th November, 1833, entered into copartnership in the business of tanners, curriers and dealers in leather; that no written articles of copartnership were executed, but, by the terms of the verbal agreement between them, the business was to be carried on at Detroit, under the name of Ingersoll & Kirby; that they were…

Case reserved from Oakland Circuit Court. Debt on a judgment rendered in favor of the plaintiff, against the defendant, before a justice of the peace.

This cause came into this Court on appeal from the Court of Chancery. The bill was filed to foreclose a mortgage.

Gardner sued Gorham and another in assumpsit. The declaration contained a count for goods sold and delivered, and also the common money counts. The plea was the general issue.

Assumpsit for money had and received, brought by Heald against Bennett. The facts proved on the trial before E. Ransom, Presiding Judge, were as follows: Heald recovered a judgment against one McGiven for $54.81 damages, and $2.31 costs, before Bennett, who was an acting justice of the peace. An execution was issued on the judgment, and subsequently returned to the justice, who made the following entry on his docket: “Rec’d in full. Execution end. satisfied.

Replevin by Dean against Jackson, for the taking and detention of a span of horses, harness, carriage, wagon, and several articles of household furniture. Pleas: 1. Non cepit. 2. That the goods replevied were the property of one James Love, and that the defendant below, as sheriff of Lenawee county, took them by virtue of an execution in favor of Udolpho Wolfe, against Love. Issues joined thereon.

The bill in this case sets forth the same facts, as are alleged in the bill filed in the case of the Michigan State Bank v. Hastings and others, reported ante, p. 225, (which was between the same parties,) and also contains the additional averment, that, in consequence of the neglect and refusal of the state to indemnify the complainants against the claims and liabilities mentioned in the condition of the indenture or agreement set forth in the bill, a suit at law had been…

A report of the case in that Court, will be found in Walk. Ch. R. 120. Held: and this Court will not diyest them of it on account of adverse possession. Livingston v. Peru Iron Co., 9 Wend. R. 516 ; Jackson y. Dermont, 9 John. R. 58, and cases there .cited. 6. There has been no adverse possession in this case, sufficient to avoid the deed from E- Lyons.