Volume 3 — Michigan Reports

A suit was originally brought by defendant in error before a justice of the peace to recover for work and labor performed on th,e steamboat Buby.

Appeal by Buckland from Oakland Circuit, in Chancery. The bill in this cause was filed to foreclose a mortgage executed by Blanchard to G. O. Whittemore, upon “ all that piece of land lying between Pontiac village lots 22 and 23,, being part of Warren street as designated on the plat of said village,” &c., to secure the payment of two promissory notes. The notes and mortgage were executed on the 4th April, 1844,. and the mortgage recorded same day.

The plaintiff in error on the 27th of March, 1851, sued out .of the Oakland Circuit Court an attachment against the goods-&c. of the defendants in error, under which writ the Sheriff of ‘'Oakland County on the 29th day of the same month attached a quantity of goods in the possession of the defendants, and on the same day made personal service on both defendants; Subsequent to the service of the attachment and on the same day, the defendants executed and delivered to the…

Case reserved from Cass County Circuit. The facts of the case, as certified, are as follows: The defendants have been for several years, and still are, common carriers of persons and property from Niles to Detroit.

Case reserved from Macomb Circuit. Demurrer to declaration upon a recognizance in the words following: “ State of Michigan, 1 County of Macomb, [ We, John Eutan, Asquire Wb Aldrich, James Covel, and Jacob Summers, 2d., of Macomb County, acknowledge ourselves to be indebted to the People of the State of Michigan in the sum of four thousand dollars, to be’ respectively levied of our several goods and chattels, lands and tenements, to the use of the said People of the State of…

Case reserved from St. Clair Circuit. This action was originally brought before a Justice of the Peace upon a bond given by the defendants to release the steamboat Telegraph No. 1, from a warrant issued by the Circuit Court Commissioner for St. Clair county. Judgment was rendered for the plaintiff before the justice, from which defendants appealed to the St. Clair Circuit.

<p>Error to Wayne Circuit Court.</p>

The defendant in error brought an - action of replevin. against plaintiff in error in the Jackson County Court, and declared for one span of horses, wagon and harness.

<p>A legislative enactment authorizing a court to grant a divorce from the bonds of matrimony, between certain parties, provided it should be made to appear satisfactorily to the court, that the defendant had for the term of five years preceding the time of filing the bill of complaint, and still continued to be, hopelessly and incurably insane; 3 in effect the granting of a divorce by the legislature in a particular case, and for a particular cause, for which no general law of the State authorizes a divorce to be granted, and is contrary to the provisions of the constitutions of 1836 and 1851, inhibiting divorces by the legislature.</p>

<p>Motion for a mandamus.</p>

<p>The return upon a justice’s summons, in these words, “ Personally served true copies of the within by reading,” properly dated and signed by the constable; Held, evidence of a good service under sec. 15, p. 389, R. S.</p> <p>Taking an appeal under the act of 1849, p. 101, regulating appeals, is not such an appearance in the cause as waives an objection to the jurisdiction of the court over the person of the appellant.</p> <p>One of two defendants appealed from the judgment of a Justice rendered upon default, and afterwards in the appellate court both defendants jointly plead, and there was a trial on the merits. Held, that the objection that the appeal was taken by one defendant only, if otherwise valid, was waived by such joint plea and trial.</p>

<p>An action was brought in the County Court by plaintiffs as co-partners. Upon the trial a contract signed by defendant, in which the plaintiffs were referred to by their co-partnership name, was produced and proved, under several objections by defendants counsel, but what the objections were did not appear by the return made to the certiorari, and there was no direct evidence as to plaintiffs’ co-partnership. Held, that proof of such a co-partnership being necessary to a recovery, plaintiffs (in the absence of direct proof as to that point) were bound to show affirmatively, that the nature of defendants’ objections to the introduction of the agreement in evidence, was such as amounted to an admission of the co-partnership, or what was equivalent, to a waiver of proof of it. It was incumbent on plaintiffs to show to this Court, that said objections did not relate to the question of co-partnership.</p> <p>Plaintiffs alleged in this Court as error, that the judgment of the County Court was uncertain, &c., but having omitted to assign this as error in the Circuit, (where judgment was taken by certiorari,) whereby defendant was deprived of an opportunity to procure an amended return, they are estopped by such omission from alleging such error in this Court.</p> <p>The County Judge, in his return to a certiorari, set forth that he rendered judgment of “no cause of action, nonsuit, I think,” but as the judgment was rendered upon proofs and a submission on the merits, it will be deemed in law a judgment for defendant, and not a nonsuit.</p> <p>After the submission of a cause, two successive arguments thereafter, and the lapse of several weeks, the refusal of the Court to open the cause and receive additional proofs cannot be assigned as error.</p>

Case reserved from Calhoun Circuit. This was an action of ejectment tried at the Calhoun Circuit, June Term, 1851, to recover certain premises in said county.

Case reserved from Washtenaw Circuit. This was an action of assumpsit brought originally before .•a Justice of the Peace of Washtenaw cormty, to recover of the defendant $237 50, being the amount claimed to be due the plaintiffs, upon the -defendant’s subscription of two hundred and fifty dollars to the capital stock of the Dexter and Mason plank road company.

This was an action of replevin. The plaintiff claimed and proved title to the property replevied, under a mortgage from the original owners, Crane & Eolger. The mortgage was executed to indemnify them for endorsing a note for Crane & Eolger. The note was not paid at maturity, and was subsequently paid by plaintiffs, who thereupon took possession of the mortgaged property.

<p>It is requisite to the valid laying out of a highway Under R. S. 1846, that application therefor should be made in writing by ten or more freeholders, and notice of the application be given to the persons interested in lands through which the road is to pass. . A survey of such road should be made and incorporated in an order to be signed by the Commissioners, and filed in the office of the township clerk, who shall note the time of filing. When it was not shown that any of these requirements were complied with, and the road had never been opened or used, or regarded by the Commissioners as a highway, the court refused a mandamus to the 'Township Board to show cause why they should not pay the damages to a pafty through whose lands a highway was claimed to have been laid.</p>

Replevin for tbe propeller Ogontz. Case reserved from tbe Wayne Circiut. At the bearing of this canse, several questions arising upon the facts found by the Circuit Court were elaborately argued by the respective counsel, and numerous authorities cited. But under the view taken by the Court, the determination of the cause mainly depended upon the fact, whether the employers of the defendant were tenants in common of the propeller with the plaintiffs.

The plaintiff in error entered into an agreement with the defendant in error in the words following : “ Whereas, Beach G. Spencer, of Grand Rapids, Michigan, has, this nineteenth day of Februai-y, 1850, sold and delivered his entire stock of goods in trade as per invoice, to James P. Scott, of the village of Grandville, in said State, amounting in all to the sum of eight thousand four hundred and twenty-four dollars and twenty-three cents. “ Whereas, the said James B. Scott,…

This was an action of trover brought by Mann & Eaman, against Webb, for the conversion of a quantity of wheat. The suit was originally commenced in the County Court, and afterwards transferred to the. Circuit Court, for trial. The> cause was tried before the Circuit Court without a jury, and. on the 15th day of June, 1852, judgment was entered against, the plaintiff in error for thirty dollars damages, and costs' of' suit.

Case reserved from the Wayne Circuit. The 10th section of the limitation law of the Territory of Michigan, adopted May 15th, 1820, as printed, reads as follows : “ This act… Held: That from the Statute having been printed and re-printed with the words in, and from the length of time the printed copies had been in use, they could not presume otherwise than that the statute was passed .as printed, and that persons out of the State, were within the exceptions in sec. 10. 1.

<p>B., who was entitled to the possession of a certain chattel, replevied it of H. On the trial he was non-suited, and the defendant, H., took judgment for the value of the property, under the Statute. B., still retaining the property he had so replevied, brought trover against H., and recovered for the full value of the property so replevied, instead of damages for its temporary detention by H. H. paid the judgment, and claiming the property by virtue of such payment, brought replevin for it against B. Held, that if H.’s taking judgment against B. in the original replevin suit, for the value of the property, amounted to a conversion; in paying the judgment in the trover suit he only paid for the property he had converted; and if, on the other hand, the Court erred in the trover suit in giving B. damages for the full value of the property, instead of damages for its temporary detention, such error could not transfer the title of the property to H., and in neither case could he recover.</p>

This case was reserved by the Circuit Judge of the county of Jackson, for the opinion of this Court, upon the following-statement of the case and facts found by him: This was an action Of replevin, brought under the provisions of chapter 124 of the Revised Statutes, to recover the-possession of one hundred and twenty-six sheep, which the said plaintiff alleges were unlawfully detained from him by the defendant, and said cause having been submitted to the-Court, without a…

Case reserved from Wayne Circuit. The plaintiffs were incorporated by an act of- the Legislature of Michigan, approved March 26, 1836, which act is referred to and made a part of this case, to show, among other things, the purpose of the incorporation. The said Society was organized under said act, and its by-laws and standing rules, were referred to and made a part of the case.

<p>It is not necessary, to authorize a Justice of the Peace to take depositions under chap. 4, title 2, part 3, R. S. 1846, that proof of service of notice of taking the deposition upon the adverse party (he not being present) should be made, although the Justioe would be justifiable in refusing to proceed without such notice. If the fact of due notice existed, and the deposition was taken and certified in due form, without proof of notice adduced to the Justice, such fact being proved in the Court to which the deposition is returned, entitles it to be used.</p>

Case reserved from Wayne Circuit Court. Assumpsit upon a guaranty endorsed upon a promissory note. The declaration contained a special count upon the guaranty, and. also the common money counts. Plea, the general issue. On thé trial at the September term, the plaintiffs proved the making of the following note : “ $165 00.

The plaintiff in error was convicted by the verdict of a jury, of “willfully and knowingly cutting and carrying off from, premises not Ms own,” &c., certain trees and logs,' at a time and in a place therein specified, and on premises .therein mentioned, under the provisions of chap. 15J R. S., “ of offences against property,” (page 670, § 51,) for which he was sentenced by the Justice of the Peace before whom the case, was tried, to pay a fine, &c. On the trial, the…

Ejectment brought to recover certain premises described in the declaration, which was in the usual form. Plea general issue, and the cause was tried at June term, 1853.

Case reserved from Jackson Circuit. This was an action of ejectment tried at the Circuit Court for the County of Jackson, in May, 1852. The plaintiff claimed to recover certain premises in the ¡county of Jackson.

/ This was a criminal prosecution, for. an assault and battery, instituted on the complaint of Ellen Donovan against the plaintiff in error, before David T. McCollum, Esq., a Justice of the Peace. The plea was, not guilty.

Trover to recover the value of 144 bushels of wheat. The facts of the case are stated in the opinion of the Court. Two questions were argued upon the errors assigned: 1. Whether parol proof is admissible in a Court of law to •contradict or vary the terms of an absolute bill of sale. 2.

At a general election held in the county of Genesee, on the second of November, 1852, for the office of Judge of Probate of said county, were given the following votes, for the following persons,… Held: &c., the said office of Judge of Probate, and that at said election the relator was elected to said office, and rightfully entitled thereto.

Case reserved from Wayne Circuit. This was an action of replevin. The plaintiff declared for the unlawful detention of the schooner Sparrow, and the defendant plead the general issue. The case was tried before the Circuit Judge for the county of Wayne.

Case reserved from the Monroe Circuit. The defendant was entitled to a jury without paying a fee. The provisions of the Constitution are : In every criminal prosecution the accused shall have the right of a trial by jury. (Const., Art. 6, § 28.) The very terms of the act clearly characterize the present as a criminal prosecution.

The plaintiff below declared in trespass for false imprisonment. Held: that the plaintiff who directed the arrest was liable in trespass, &c.’ (Jackson vs. Woolsey, 11 J. R. 444.) . The party who sues out process does it at his peril, and the party is a trespasser who illegally extends the power of the Court. (2 J. C., 50 and 51.) Where summons is the regular process, a warrant without oath is void.

This cause was commenced by Lawrence, in the Macomb County Court, against Chandler, the plaintiff in error, and Lucrotia Harris and Harvey Brown, upon a joint and several promissory note, made by Chandler, Harris and Brown. On the note were two endorsements of payment, in the hemdwnl/iruj of Uhancllar, although not signed by him. The declaration was originally .against all the makers, and was served on Chandler only, the other makers being nonresidents.

This was an action of assumpsit, brought by the defendants in error, in the Wayne Circuit Court, against the plaintiffs in error, members of a transportation company, doing business under the name and style of the “ Syracuse a/nd Oswego Lime? to recover the value of certain goods lost on lake Erie.

<p>The defendant in an attachment suit caused his appearance to be entered. Afterwards the declaration was duly filed, to which the defendant failed to plead, and his default was entered. At the term, defendant moved to set aside the writ and declaration, on the ground that, as appeared by the declaration, the writ was issued for unliquidated damages; and the motion was granted. Held, that the motion was unseasonable, and its allowance irregular; that the proper-course, if the defendant believed the attachment unauthorized, was to cite-the plaintiff under the act of 1851, to show cause why it should not be diasolved, and that ho could move the Court, only when some defect or irregularity tras apparent in the writ or affidavit. '</p> <p>The remedy by attachment is not limited by the laws of this State to cases of liquidated damages. A demand arising ex contractu, the amount of which is susceptible of ascertainment, by some standard referable to the contract itself, sufficiently certain to enable the plaintiff by affidavit to aver it “ as near as may be,” or a jury to find it, may be the foundation for the proceeding.</p>

<p>Service of a writ: of certiorari to remove a cause into the Circuit Court, made upon the Justice on Sunday, is void under Sec. 5, ch. 43, R. S. 191.</p>

Case reserved from Wayne Circuit. This was an action of assumpsit originally brought in a Justice’s Court, and upon appeal, tried in the Circuit Court for the County of Wayne. The plaintiffs claimed to recover as common carriers for freight and charges for the transportation of eight packages of merchandize, against which the defendants set up a claim by way of recoupment against the plaintiffs for damages done to the goods while in the plaintiffs’ possesion.

This was an action of replevin brought in the County Court of Washtenaw County, to recover the possession of the goods and chattels described in the writ by virtue of a chattel mortgage, after condition broken. The cause was removed by certiorari to the Circuit Court.

Case reserved from Washtenaw Circuit. The plaintiffs commenced a suit before a Justice against the defendant as garnishee of one Phoebe Goodall. On the return day of the summons the parties appeared, and the defendant answered on oath. Subsequently a summons to show cause was issued against the defendant, which was duly returned personally served, and on the return day the parties-appeared.

Case reserved from Calhoun Circuit. This was an action of assumpsit, brought before James A. Way, a Justice of the Peace. The plaintiff declared upon a bond dated the 31st May, 1852, and made by John Ergensinger and his sureties to the people of this State for $500, conditioned to pay all penalties' .and damages which individuals or community might suffer by reason of the traffic of John Ergensinger in intoxicating liquors.

Joseph Circuit iu Chancery. • The bill was filed in this case for discovery and relief, the 13th May, 1852, alleging that in 1849 complainant entered into co-partnership at Constantine, with Brush Sutherland, and Denio & Pierce, in the cast iron manufactory, under the firm of “ Sutherland, Denio & Co.” — and that complainant paid into said firm $560; that in February, 1850, complainant having left for California, Jacob Bonebright, complainant’s father, as his agent and by…

Case reserved from Washtenaw Circuit. This was an,'action- of assumpsit brought originally in' a Justice’s Court, to recover the valué of a'quantity-of mill irons!

Case reserved from the Wayne Circuit. This was an action brought to recover of the defendant the penalties imposed by the act approved Feb. 12, 1853, entitled “ an act prohibiting the manufacture of intoxicating beverages, and .the traffic therein ” By the case agreed upon between the counsel of the parties, the defendant on the 22d of December, 1853, and since the first day of said month, was and had been a manufacturer of strong beer and ale, and also a seller thereof, in…

This ease came into the Supreme Court on reservation by the Presiding Judge of the Wayne Circuit Court, of the question whether “ an act prohibiting the manufacture of intoxicating beverages and the trafile therein,” approved Feb. 11, 1853, was constitutionally in force. On this question the Court were equally divided.

The relator was the holder of a certificate of sale of lands in the county of Calhoun, sold at the tax sales of said county, October 7, A. D. 1846, for delinquent taxes of the year 1844.

This was an action of assumpsit, originally brought by the defendant in error, against the plaintiff in error, in the Ma-comb County Court, on a written contract, signed by the parties, and in which, among other things, the plaintiff: in error agreed to dear, within a specified period of time, a certain piece of land; and the defendant in error 'agreed to dig thereon a certain ditch “ two feet deep, and eighteen inches wide at the bottom,” &c. The cause was tried by a jury…

This action was commenced in the Circuit Court for Washtenaw County. The plaintiff declared upon a judgment rendered by a Justice of the Peace, on the 15th of September, 1851, for ninety-two dollars damages, and two dollars and fifty-two cents costs. The defendants demurred to the declaration.

Case reserved from Wayne Circuit-Court. The bill of the complainant alleges, that in 1833, Obadiah Holmes, C. V. B. Hasbrook, and James Bailey, were-partners in business, in the City of New York. Th'e defendant, Farrar, became indebted to them, and in 1837, Bailey being then deceased, Holmes & Hasbrook, as survivors, brought suit in the Wayne Circuit Court, and recovered judgment against Farrar for $1,275 46. That upon the judgment, a writ of fieri fiadas issued.

This was a bill to foreclose a mortgage bearing date June 7, 1852, made by the defendant, Matthews, and wife, to complainant, on premises in Oakland county, which the bill alleged constituted the homestead of Matthews and wife, and which were claimed by the complainant to be exempt by law from execution.

Assumpsit for work and labor, &c., originally brought in a Justice’s Court. Plea, general issue. Judgment for the plaintiff Defendants appealed. In the Circuit Court, the cause was tried by jury.

The plaintiff below, brought an action of trespass on the case, against the defendant, claiming in his declaration $1000 damages. The general issue was pleaded, and at the trial, the jury found a verdict for the plaintiff of $50, for which sum the Court accordingly rendered judgment in his favor, with costs of suit. The defendant below sued out this writ of error.

This was an application for a peremptory mandamus, to. compel the Board of Supervisors of the County of Macomb, to allow the relator the amount of a certain claim.

The bill in this case was filed to redeem certain premises, which had been conveyed by the assignor of complainant to the defendant, William Swetland, by a deed absolute in form, but which was alleged in the bill of complaint, to be in fact, an equitable mortgage only.

This was an application npon an agreed statement of facts, for a peremptory mandamus to compel the respondents to cause to be appraised and paid, the damages of the relator on .account of constructing, using, and occupying their road, upon and across his land, being the w. i of s. e. í of sec. 17, township 7, south of range one west, in the county of Hillsdale, and lying east of the village of Hillsdale. The facts are fully stated in the opinion of the Court.

Case reserved from Lenawee Circuit. Neither the State nor the Company could acquire- any title to the lands of individuals, or any easement, or right of way even, except upon strict -compliance with the Constitution and Laws. (See Const. of 1835, Art. 1, § 18; Ib. of 1850, Art. 15,§ 9; Art. 18, § 14; Sess. L. of 1837, 197, § 15; II. 1839, 196-7, §24; II. 1840, 97, §16; 11. 1842, 123-4, §2; 11. 1843, 153, § 1; 11. 1844,15, § 1-2; Charter of B. B. Go., Sess.

Case reserved from the Wayne -Circuit in Chancery. The bill in this cause was filed in aid of an execution issued on behalf of the complainant against the defendant, and levied upon the interest of the defendant, Wood, in certain real estate, known as “ Primary School Land,” sold to him by virtue of the act of March 21,1837, for the sale of “ Primary School Land.” A certificate of purchase had been delivered to Wood, dated Sept. 5,1837.

This was an action for the publication by plaintiff in error, of an alleged libel of and concerning the plaintiff below. It was tried at the April term of the Calhoun Circuit, 1853, anfi resulted in a verdict for plaintiff of $154.

<p>Under the statutes now in force, appeal Causes in the Circuit Court, unless the appeal b® dismissed on motion of the appellee for some irregularity in Mdrsg Site, appeal, or for want of jurisdiction, may bo noticed for trial by'eüjbj» ¡roj--. ty, anfi'be proceeded in to judgment in the aame manner as in es®#* origin aaHy..commenced- in the Circuit Court.</p>

Appeal‘from the St. Joseph Circuit, in Chancery. ' The complainant was owner in fee of lands which were flowed by the defendant’s mill pond. A few years before filing the bill in this cause he brought a suit at law, to recover damages for the flowage of his land, and obtained judgment for the sum of $25, and upon his undertaking to enforce the judgment by execution, the defendant filed a bill in Chancery to restrain its collection.

The defendants, Chandler & Orr, on the 20th of October, 1852, had a demand against one Lockwood, amounting to about $403; of this, $304 50 was in a note not-then due,- and the balance was an account for goods sold, and was due. On that' day, they sued out an attachment against the property of Lockwood, (who had absconded,) in the Jackson Circuit, claiming in their affidavit that there was due them, from LockWood, $403 38. Under the attachment, a stock of goods belonging to.

<p>Application for a mandamus.</p> <p>The facts of the case, sufficiently appearing in the opinion of the Court, it is not necessary to recite them here.</p>

<p>Error to Washtenaw Circuit Court.</p>

The plaintiff in error was tried and convicted in the Hillsdale Circuit of the crime of perjury.

<p>An action of debt lies on a judgment recovered before a Justice of the Peace, immediately on its rendition, though execution be stayed under the. provisions of the statute.</p>

This was an action of assumpsit brought by Beardslee “ for the use of Mary Ann Hunt, formerly Mary Ann Culver,” to recover the amount due upon an instrument signed by the defendant, and claimed to be a promissory note, and also a sum of money, the avails of certain demands left by Mrs. Culver with defendant for collection.

Case reserved from Washtenaw Circuit. This was an action of assumpsit for use and occupation of certain premises situate in the city of Ann Arbor, and .wag-tried at the Circuit Court for said county at the December-term, 1852, before the Circuit Judge, without a jury, and the-.

This was- an action of trespass, brought by the defendants in error in the Oakland County Court. The. declaration was for. an assault and battery by the plaintiff in error, on Rebecca, the wife of,James Everts,, to which there was á plea of general issue, with notice, &c. The cause was removed by election under the statute, to the Oakland Circuit, where it was tried on the merits, and a verdict and judgment rendered for the plaintiff.

This was an action of ejectment. On the trial the plaintiff' introduced and read in evidence certain deeds showing that on the 12th of July, 1838, one Smith' was seized in fee of the premises sought to be recovered. He then introduced and read in evidence a certain mortgage on the same premises, executed by said Smith to himself as security for the payment of a certain sum of money, according to the condition of a certain bond.

It appeared by the record in this cause that the plaintiff instituted a suit against one Charles Brewster, before Charles Peltier, Esq., a Justice oí the.

Information in the nature of a quo warranto. At the general election in November, 1852, there was to be chosen a prosecuting attorñey for the county of Calhoun, under section 3, art. 10, of the new Constitution; the whole number of votes given for the office of prosecuting attorney wa's three thousand nine hundred and fourteen, of which C. S. May, the defendant, received two thousand and twenty-seven, and D. D. Hughes, the relator, one thousand eight hundred and eighty-seven.

This was a suit upon contract originally- brought before a Justice of the Peace. The declaration was as follows: “The plaintiff complains of the defendants, for that heretofore, to wit, in the month of September, A'.

This was an action of asBumpsit brought by Morgan, tke payee, against Butterfield, • as the maker of .two promissory notes, to the amount of $968 19, dated in 1846, and each payable four months- from date.