Volume 5 — Michigan Reports

On exceptions from Wayne Circuit. The prisoner was indicted for the murder of Michael Walsh, and convicted of murder of the first degree.

Case reserved from the Hillsdale Circuit, on motion for a new trial. The questions presented are fully stated in the opinion of the Court.

Case reserved from the Wayne Circuit, and certified to this Court as follows: “The Circuit Court for the County of Wayne: The People vs. John Adwards. “The prisoner was tried at the September Term of this Court, upon an indictment based upon Sec. 27 of Chap: 153 of the Revised Statutes, and charging that the prisoner mingled with the drink of one Robert Mothersell a quantity of poison known as morphine, with the intent to injure him. “Upon the trial, it appeared in evidence…

Case reserved from the Lenawee’ Circuit, and certified to. this Court as follows: “The Circuit Court for the County of Lenawee: Samuel Pegg and Charles Swindle, plaintiffs in error, against Robert Bidleman, defendant in error. “Certiorari to John Barber, a Justice of the Peace of the County of Lenawee. “This cause coming on to be heard upon the return of the said justice, and the question arising upon said return being such as in the opinion of the Circuit Judge should be…

Case reserved from Ingham Circuit. Suit was commenced in the Circuit Court, by attachment of real estate, against the defendant, who was a non-resident, and judgment regularly obtained at the April Term, 1857.

<p>The Supremo Court has no authority to amend the record of the Circuit Court sent up on writ of error.</p> <p>A Circuit Judge may amend his finding, and such amendment is not subject to review.</p> <p>•A bill of exceptions signed by the Circuit Judge, showing the exceptions to have been properly taken on the trial, is to be presumed properly signed, and within the proper time, though dated several months after the trial and after judgment entered, and though nothing appears in the bill itself, or in the record, to show affirmatively that time was allowed for its preparation and settlement.</p>

<p>On an appeal to the Supreme Court from a decree in Chancery, the officer who fixes the penalty of the appeal-bond does not acquire exclusive jurisdiction to subsequently approve the sureties, but they may bo approved by any officer empowered by the law to act in the premises.</p> <p>It is no objection to the proceedings on appeal in Chancery that the appeal-bond, recites an intention to take an appeal, and that a claim of appeal is not filed until the approval and filing of the bond.</p>

Motion made at the last January Term to dismiss the exceptions accompanying the return to the writ of error; and held under advisement to this time. The grounds of the motion, and the provisions of the statute upon which it is based, are fully stated and considered in the opinion of the Oom-t.

Thomas commenced, by warrant, an action against Chap-pee, on contract, before a justice of the peace. The affidavit upon which the warrant issued, set forth the non-residence of Chappee as the sole ground for applying therefor. Chappee was arrested on the warrant, and taken before the justice, where the plaintiff appeared and declared in assumpsit, and the defendant, still in custody, pleaded the general issue.

<p>Error to Wayne Circuit.</p> <p>Tbe case is sufficiently stated in tbe opinion of the Court.</p>

<p>Case reserved from Wayne Circuit Court, in Chancery. %</p>

The plaintiff in error was convicted at the December Term, 1857, of the Lenawee Circuit, upon an indictment founded on section 5741 of Compiled Laws, and sentenced to imprisonment in the State-prison for five years. The following is a copy of the indictment: “ State of Michigan: The Circuit Court for the County of Lenawee.

Case reserved from Lapeer Circuit. The action was ejectment, by the plaintiff against James Arnold, Henry Crapo, and Henry C. Miles.

<p>When a cause is tried in the Circuit Court without a jury, and no exceptions are taken to the legal rulings upon which the Court arrives at its application of the facts and evidence, and no case, made under the statute, is brought before the Supreme Court, that Court is not at liberty, when the case is before it by Writ of error, to examine into the propriety of [anything in the decision of the Court below, based upon its finding of facts, but must take its conclusions as founded upon the law and evidence.</p> <p>Where plaintiffs claimed personal property under a chattel mortgage, and defendants justified under executions and attachment against the mortgagors, who were partners, and the evidence tended to show that there was no manual delivery of the mortgage to plaintiff’s (who did not reside in the State), but that the mortgagors were indebted to plaintiffs in more than the amount of the mortgage, and plaintiff’s offered in evidence a letter to them from one of the mortgagors, in the name of the firm, written some time before the levy of the executions and attachment, informing thorn of the execution of the mortgage; — Held, That such letter was proper evidence, as tending, in some degree, to prove that the true intent of the mortgage was to secure an actual indebtedness to plaintiffs, and not to make a mere cover of the transaction.</p> <p>A chattel mortgage need not bo under seal, and a partner can make it for the copartnership. If ho does so, and adds a seal, the seal does not take away his authority, or in any way change the force of the instrument.</p> <p>Where, in replevin against two, the Court finds that each of the defendants has an independent lien, to a specified amount, on the property in controversy, it is erroneous to render a joint judgment in their favor, for the value of the property.</p>

Case reserved at Saginaw Circuit. The action was replevin for an iron safe, and was tried by the Circuit Judge without a jury. Plaintiffs claimed the safe under a bill of sale from one J. B. Sloan, the execution of which was proved.

Case reserved from the Sagmaw Circuit. An indictment against defendant was found in the Court below, for perjury alleged to have been committed June 29th, 1857, at the townshij) of Hampton. To this indictment the defendant filed a plea m abatement, that “the said supposed offense, if any such was committed, was committed within the jurisdiction of Bay county, and not within the jurisdiction of this Court” — upon wMch plea issue was taken.

<p>Ejectment. Case reserved from Saginaw Circuit.</p> <p>The questions involved are fully stated in the opinion of the Court.</p>

The action was by Jaquith against Hudson, ujDon a.promissory note for one thousand dollars, given hv the latter to the former April 15th, 1855, and payable twelve months after date.

Case reserved from Saginaw Circuit. Action of replevin. Defense: That defendant took the property, as constable, by virtue of an execution issued on a justice’s judgment against plaintiff, and certain other parties for whom plaintiff was surety for stay of execution. Trial by jury.

<p>Case reserved. The same ruling as in the last case.</p>

<p>In a case •which originated before a Circuit Court Commissioner, and was appealed to, and tried in, the Circuit Court, and brought to this Court by writ of error after judgment; a motion made after four weeks in term, since the filing of joinder in error, for leave to amend the assignment of errors, so as to take an objection to the jurisdiction of the Commissioner which was not made before the Commissioner or in the Circuit Court, presents no equitable claim for the exercise of the discretionary power of the Court, and will be denied.</p>

<p>Whore, on. information in the nature of a quo warranto, the State calls upon an individual to show his title to an office, ho must show the continued existence of every qualification necessary to the enjoyment of the office. The State is bound to make no showing, and the defendant must make out an undoubted case.</p> <p>Where ballots were cast for Michael Finnegan, the relator, by the name of Michael Finegan, the rule of idem sonans applies, and they should all have been counted and allowed to the relator.</p> <p>The statute which requires of a person elected to the office of sheriff, that he shall file the oath and bond of office within twenty days after receiving official notice of his election, or within twenty days after the commencement of the term for which he was elected, only applies to the person declared elected by the board of canvassers, and not to one to whom the board have refused a certificate.</p>

Case made after judgment from Genesee Circuit. Ejectment for land in Fenton township. On the trial in the Court below, the plaintiff having made a prima facie showing of title in himself, under the original patentee, defendant introduced in evidence a deed of the lands from the Auditor General, for • delinquent taxes for the year 1849, to parties under whom defendant claimed.

Case made after judgment from Saginaw Circuit. Replevin for certain personal property. Plea of general issue, and notice that the goods, &c., were the property of John C. Baughman, and that defendant Grant, as sheriff of Saginaw county, had taken the same by virtue of writs of attachment issued from the Circuit Court for the county of Saginaw in favor of defendant Taylor and others against Baughman.

<p>When application is made by a pauper to a county superintendent of the poor, under section 1439 of Compiled Laws, the superintendent has full power to provide such temporary relief as ho may deem proper, without any of tho restrictions or qualifications imposed upon directors of tho poor, on (similar applications, by sections 1443 and 1444.</p> <p>Xu the granting of temporary relief, and in determining who are proper subjects for temporary and permanent relief, a single member of the board of superintendents possesses tho whole power of the hoard, limited, probably, by an express dissent of the majority in a particular caso.</p>

Appeal by complainant from the Oakland Circuit in Chancery. The hill was in the ordinary form of foreclosure bills, and alleged,— That, on the 15th day of August, 1843, Orville C.‘Morris executed to William Morris thirteen promissory notes, twelve for three hundred dollars each, and the thirteenth for four hundred dollars, and payable from one to thirteen years thereafter — the last six of which are alleged to be unpaid, and to be held by complainant; that, to secure the…

The canse was originally commenced in a justice’s court, and taken to the Circuit Court, by appeal. The action was trespass for a span of horses.

Petition for mandamus. The petition sets forth that Judge Whipple was elected to the office of circuit judge before the 1st day of January, 1852, and on that day entered upon the discharge of his duties as such circuit judge, and continued to discharge the same until his decease in September, 1855; that, during all that time, he was also, in pursuance of the Act entitled “An Act to provide for the Organization and Powers of the Supreme Court,” approved April 4th, 1851, a…

The bill was in the ordinary form, for the foreclosure of a mortgage dated February 9th, ÍSSÍ, given by defendant to Samuel Adair, and purporting to be made to secure the payment of $650, in thirteen installments of $50 each; the first to be paid on the first day of April then next, and the remainder semi-annually, commencing on the first day of November then next, with interest. The mortgagor covenanted in the mortgage to make these payments.

The bill was filed by complainants, to foreclose a mortgage given by defendant to them in their representative character. Defendant appeared in person, and filed a general demuixer to the bill. On the 2d of April, 1857, complainants’ solicitor, residing at Mt. Clemens, mailed to defendant, at Detroit, his place of residence, notice of hearing on the demurrer, for the first day of the term commencing on the 7th of that month.

Action of trover, brought by the defendants in error against the plaintiff in error, before'Minot T. Lane, a justice of the peace, of Detroit, to recover the value of two horses, alleged to have been mortgaged to defendants in error by one Alexander L. Ross, and afterwards sold by Ross to the plaintiff in error, and converted by him.

Petition for mandamus. The relator presented his petition to this Court, setting forth in substance that prior to April, a. d. 1858, he was an acting justice of the peace of Detroit; that, in that month, he made out his account against the county of Wayne, for services rendered as such justice in criminal proceedings, which account amounted to one hundred dollars and fifty cents, and was presented to, and allowed by, the Board of Auditors of said county, on the 16th day of…

William Cook, defendant in error, presented Ms account as administrator upon the estate of Maria Williams, deceased, in the Probate Court of Wayne county, for allowance, on 18th March, 1857.

The allegations of the bill, so far as they are material to illustrate tbe decision, are as follows: That, in 1853, complainant Batty bought of defendant Warner a lot in the village of Mt. Clemens, with saw mill thereon, for $3750, and gave hack a mortgage for part of the purchase-money; that, in January, 1855, he owed Warner $2331.26 on said mortgage, besides other sums’ in account; he was also otherwise largely indebted, especially to defendant Snook; that in his…

<p>It is not necessary, on appeal in Chancery, that any written claim of appeal should be filed.</p> <p>It is not necessary that a bond given on appeal in Chancery should be executed by all the appellants. It is sufficient if it appear to be executed on behalf of all.</p> <p>Motions to dismiss must be made at the earliest opportunity.</p>

Soldán sued Chaffee before a justice of the peace, and recovered judgment May 18th, 1857. Chaffee appealed to the Circuit Court, making and filing with the justice the necessary papers for that purpose on the 23d of May. The return of the justice was duly made and filed. On the 17th of October following, Soldán, on affidavit that the entrance-fee had not been paid, made an ex parte application that the appeal be dismissed; and the same was dismissed, with costs.

On exceptions from Wayne Circuit. The defendant was indicted under section 5809 of Compiled Laws. The indictment contained two counts. The first count charged him with having in his possession a one dollar counterfeit bill on the Providence Bank, Rhode Island, with the intent to utter and pass the same as true: the second count with having the said Ml in his possession, with the intent to render the same current as true.

Plaintiff in error brought tresj-ass in the Court below for a quantity of pine lumber.

<p>Notice of special motions is in all cases necessary -where the opposite party has apt peered in the cause.</p>

Case reserved from Allegan Circuit. Defendant was indicted for an assault and battery not charged to have been committed riotously, or upon any public officer in the execution of his duties, or with intent to commit any other offense.

This was an action of assumpsit, in which judgment was taken by default, for want of appearance and plea. The declaration contained two special counts and the common counts. The first special count set forth that the plaintiff below (defendant in error) was a corporation under the Act of 1853 (1 Comp.

On exceptions from tbe Recorder’s Court of tbe City of Detroit. The information against defendant contained one count only, charging him with the commission of incest with Delia E. Ashcroft, the daughter of his sister, Martha Jane Ashcroft, at the city of Detroit, on the 24th day of February, 1858.

The original complainant, Henry Camber, by his hill filed ^December 23d, 1853, claimed that a certain note, given for $ 81.26, November 21st, 1850, by John Camber and himself to Michael Singer, administrator, appointed in the State of Ohio, on the estate of William Singer, and upon which note judgment was recovered June 14th 1853, for $93.00 damages and $8.16 costs, in the Lenawee Circuit Court, in favor of Michael Singer in his individual .character, was, in fact, at the…

Case reserved from the Wayne Circuit in Chancery. The hill was filed to restrain the defendants from collecting a certain assessment for the paving of a portion of Witherell street in the City of Detroit, in front of complainant's premises. Edward S. Leadbeater, was made a party defendant. The defendants moved to dissolve the injunction upon the hill. On the hearing of the motion, several questions Were reserved for the consideration of this Court.

'Case reserved from the Wayne Circuit. Defendant was convicted upon indictment charging that, on the first day of January, 1855, at Bergen Hill, in the State of New Jersey, lie married one Nancy J. Mulholland, and that afterwards, and while the said Nancy J. was still living, on the third day of August, 1857, at Detroit, in the State of Michigan, he married one Mary Jane Brown.

The plaintiff in error was sued by the defendants in error, in an action of assumpsit, for the non-delivery of certain goods entrusted to the plaintiff in error, in New York, to he transported to the defendants in error, in Detroit, by way of Buffalo and Lake Erie.

The facts in the case, so far as they are material to present the question passed upon by the Court, are as follows: On the 2d day of August, 1856, Arza Lewis, being largely indebted and greatly embarrassed, made a general assignment for the benefit of creditors to one George H. French, which assignment was conceded on the trial to be fraudulent upon its face, as it authorized a sale of the assigned property on credit.

Wells, a Notary Public and Attorney of the Supreme Court, acting- in the place of circuit court commissioner for the county of Ionia.

<p>Where a merchant sells goods to a customer at a distance, and contracts to ship, them, at a specified time, by a designated route, but, instead of doing so, sends or knowingly permits them to go forward by any other route, it is at his own risk of loss or unseasonable delivery.</p> <p>The agent of the O. & P, R. R. Co., on receipt of goods to be forwarded, gave a dray ticket, signed by himself,' in the following form: “Pittsburgh, Nov. 1, 1854. To O. & P. R. R. Reed, of F. Bros, in good order [certain goods described]. For M. 1. M. & Co., Detroit. To Mansfield.” A shipping bill was also given at the same time, specifying Mansfield as the place for delivery of the goods; — Held, That this dray ticket, standing by itself, was not evidence of an obligation, on tho part of the Railroad Company, to oonvey the goods to Detroit, and that the Circuit Judge was correct in charging the jury, under the circumstances, that it evidenced only an .obligation to keep the goods safely,, and re-deliver them, or account for their value.</p>

The bill in this case was filed to foreclose a mortgage given by the defendant Lorenzo J. Rider to the complainant, dated the 8th day of March, 1855.

Case reserved from Lenawee Circuit. The action below was assumpsit against Mason W. South-worth and Joseph H. Cleveland, upon an injunction bond.

<p>Where a party fails to comply substantially with an agreement, he can not sue or recover upon tho agreement at all, unless it is apportionahle.</p> <p>But where anything has been done under such agreement, from which the other party has ‘received substantial benefit, and which he has appropriated, a recovery, based upon that benefit, may be had on a quantum meruit. The basis of that recovery is not tho original contract, but a new implied agreement, deducible from the delivery and acceptance of some valuable service or thing.</p> <p>Where action is brought on a quantum meruit for labor done under a special contract, which has not been substantially performed by the plaintiff on his part the plaintiff can in no caso recover more than the contract-price; and can not recover that, if his work is not reasonably worth it, or if, hy paying it, the rest of the work will cost the defendant more than if the whole had been completed under the contract.</p> <p>The party in default, in such case, can never gain by his default, and the other party can never he permitted to lose hy it.</p> <p>And where, in such case, the Court excluded evidence offered hy defendant to prove that the work was not worth the contract-price, and charged the jury that, if there had been a partial performance, from which defendant had derived benefit, plaintiff was entitled to recover the contract-price, deducting any damages which defendant had sustained hy reason of non-performance*, — Held, That such exclusion of evidence and such charge were erroneous.</p> <p>If, in such case, thero are damages growing out of the non-performance of the special contract, which do not enter into the contract-price, the defendant may recoup them in the action brought hy plaintiff upon a quantum meruit.</p>

On the 7th of October, 1856, David Moore filed his bill • to foreclose a mortgage given January 17th, 1858, by Lewis Ives, on' land in Springwells. Ives, after giving another mortgage on the premises, conveyed them to Sylvester Larned, who gave three other mortgages thereon — the last being to the 'respondent Pierson. Pierson’s mortgage was dated July 29th, 1856, but not acknowledged or recorded until after Moore commenced the foreclosure of his.

Case made after judgment from Genesee Circuit. • The action was ejectment for certain lands in township five north, of range six east. On the trial, the plaintiff proved title from the United States. Held: which were in the following form: '■'■Auditor General’s Office, Lansing, July 2d, 1849.

Case made after judgment from Genesee Circuit. The action was ejectment for lands in the township of Atlas. On the trial before Hon. S. M. Green, at the June Term, 1856, plaintiff proved title from the United States. The defendant gave in evidence deeds in due form, issued upon sales of the same lands for taxes delinquent for the years 1845; 1846, and 1847. Under these deeds defendant ■ ■claimed title.

Tbe action was assumpsit by defendants in error against plaintiff in error, upon tbe acceptance by tbe latter of a draft drawn upon bim by Hildebrand & Co., of Cleveland, Ohio,- dated March 30tb, 1857, payable to tbe order of C. & A. Ives, and by them endorsed. Tbe defendant pleaded tbe general issue. On tbe trial, tbe acceptance having been given in evidence, tbe plaintiff rested.

<p>Tho Supremo Court has no power to rectify tho records which are transmitted to it from inferior tribunals, but it may, in a proper case, compel their correction by tho inforior tribunal by mandamus.</p> <p>Tho Court can not striko out a bill of exceptions on proof that it was settled with* out notice to defendant in error.</p> <p>Though the Court may, on a proper showing, compel bills of exceptions to bo corrected so as to conform to tho facts, it will not do so until it is shown that mistakes exist which aro injurious to tho party applying for tho coiTection.</p> <p>And where the judge who signed a bill of exceptions has since gone out of office, tho bill can not be remanded for correction.</p>

The bill in this case was filed against Warren Ives, William Walker, and Cyllania Walker, to foreclose a mortgage executed by the Walkers to Morris S. Allen, bearing date January 14th, 1854, recorded in the office of the register of deeds for Clinton county, February 6th, 1854, and assigned to the complainant, December 29th, 1855, by one Joseph Hollister, who was the assignee of the said Allen; which mortgage was given to secure the payment of a negotiable note of $650, in…

On case made after judgment from St. Clair Circuit, where judgment was rendered for plaintiffs. A statement of the case, so far as is necessary to an understanding of the points decided, will be found in the-opinion.

The” action was replevin, originally brought by Whitmore ‘against Elliott, before a justice of the peace, for a quantity of household furniture and clothing. The declaration was in the usual form for the unlawful detention of the property. The defense was that the property was taken under execution on a judgment in favor of Elliott against Whitmore.